Bachawat, J. - (1.) The appellant was the owner of land bearing survey No. 910 situated on the Bhachau-Rahapur Road in Kutch District. In November 1949 the Government of Kutch, took possession of the land under an arrangement that the Government would give to the appellant in exchange other suitable lands of equal value. On that date Kutch was part of the territory of India and the Land Acquisition Act, 1894 was in force there. After taking possession of the land the Government constructed thereon the State Guest House and the Court House. Thereafter the Government was neither willing to return the land nor to give other suitable land in exchange and instead it decided to acquire the land compulsorily. On February 1, 1955 the Government issued a notification under Section 6(1) of the Land Acquisition Act declaring that the land was needed for public purposes stating that possession of the land had already been taken over and directing the Collector to take action under Section 7. The necessary action was duly taken and in due course the Collector made his award on April 22, 1957. The appellant objected to the amount of compensation and asked the Collector to make a reference to the Court under Section 18. The Collector duly made the reference. At the hearing of the reference before the District Judge, Kutch the Government conceded that the appellant was entitled to the market value of the land as on February 1, 1955. The District Judge awarded compensation accordingly. The Government filed an appeal in the High Court. At the hearing of the appeal the Government contended that in the absence of a notification under Section 4(1), no compensation could be awarded to the appellant. The High Court accepted the contention and observed that the appellant would be at liberty to contend in other proceedings that the acquisition was bad in the absence of a notification under Section 4(1). In this view of the matter the High Court allowed the appeal and set aside the order of the District Judge. The present appeal has been filed after obtaining a certificate from the High Court.
(2.) The main question arising in this appeal is whether the Government can take up inconsistent positions in Court at successive stages of the same litigation to the detriment of its opponent and whether having conceded before the District Judge that the appellant was entitled to the market value of the land on February 1, 1955 it could at the appellate stage resile from that position and contend that there was no notification under Section 4(1) on that date and that consequently its opponent was not entitled to any compensation.
(3.) The scheme of the Land Acquisition Act is well-known. If the Government desires to acquire land, it has to issue a preliminary notification under Section 4(1) declaring that the land is needed or is likely to be needed for any public purpose. This notification has to be issued in order to give an opportunity to all persons interested in the land under Section 5A(1) to object to the acquisition within 30 days after the issue of the notification. After hearing the objections the Collector has to make a report under Section 5A(2). On considering this report the Government may issue a notification under Section 6(1) declaring that the land is needed for a public purpose. In cases covered by Section 17(4) the Government may direct that the provisions of Section 5A shall not apply and if it does so a declaration may be made under sec. 6(1) at any time after the publication of the notification under Section 4(1). When the Collector has made an award under Section 11, he may under Section 16 take possession of the land which thereupon vests in the Government. Section 18 requires the Collector to make a reference to Court on the application of any person interested in the land who has not accepted the award. It is the market value of the land at the date of the publication of the notification under Section 4(1) that can be awarded as compensation by the Collector under Section 11 and by the Court under Section 23. These provisions show that the issue of the notification under Section 4(1) is a condition precedent to the acquisition of the land. Where the procedure under Section 5A has to be followed, there must necessarily be an interval of time between the issue of the notification under Section 4(1) and the notification under Section 6(1). But where Section 5A does not stand in the way, the prior publication of a notification under Section 4(1) is not a condition precedent to the publication of a notification under Section 6(1). For this reason this Court held in Somavanti v. State of Punjab,, (1963) 2, S.C.R. 775that where an order was passed under Section 17(4) dispensing with the procedure under Section 5A, it was lawful for the Government to publish both the notifications on the same date.;