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Mukhtvar Begum Vs. the Commissioner, Nagpur Division, Nagpur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln No. 473 of 1970
Judge
Reported inAIR1976Bom55
ActsLand Acquisition Act, 1894 - Sections 4 and 5-A(2)
AppellantMukhtvar Begum
RespondentThe Commissioner, Nagpur Division, Nagpur and ors.
Appellant AdvocateJ.N. Chandurkar, Adv.
Respondent AdvocateM.G. Raikarne, Asst. Govt. Pleader
Excerpt:
a) the case examined a notification under section 4 of the land acquisition act, 1894 - in the particular notification, the land that was sought to be acquired was stated to be three acres out of certain survey number without giving description - the notification also stated that the plan of land was available for inspection in the office of land acquisition officer - the court ruled that the notification could not be said to suffer from vagueness when the land was property specified and identified on the plan.;b) the court ruled that although the acquisition proceedings were initiated on account of the resolution of the gram panchayat to acquire land for the extension of the gaothan, it was for the government to decide that which land was most suited for the acquisition and the decision..........in this petition has challenged the notification dated september 18, 1968 under section 4 of the land acquisition act. the petitioner owns land bearing s. no. 13 situates kondari. the two villages mouza kondari and mouza kondari mitra wakanad join each other. the present gaothan for the two villages has a total area of 13 acres 22 gunthas. village kondari has a gaothan of 7 acres 17 gunthas and in village mouza kondari mitra the gaothan extends over an area of 6 acres 5 gunthas. the notification under section 4 of the act. proposed an acquisition from s. no. 13 belonging to the petitioner to the extent of an area of 3 acres and 11 gunthas. the purpose of acquisition of the said land was for extension of gaothan of village kondari. a resolution was made by the gram panchayat of village.....
Judgment:

Lalit, J.

1. The petitioners in this petition has challenged the notification dated September 18, 1968 under Section 4 of the Land Acquisition Act. The petitioner owns land bearing S. No. 13 situates Kondari. The two villages Mouza Kondari and Mouza Kondari Mitra Wakanad join each other. The present Gaothan for the two villages has a total area of 13 acres 22 gunthas. Village Kondari has a Gaothan of 7 acres 17 gunthas and in village Mouza Kondari Mitra the Gaothan extends over an area of 6 acres 5 gunthas. The notification under Section 4 of the act. proposed an acquisition from S. No. 13 belonging to the petitioner to the extent of an area of 3 acres and 11 gunthas. The purpose of acquisition of the said land was for extension of gaothan of village Kondari. A resolution was made by the Gram Panchayat of village Kondari Maira Wakan whereby it was resolved that on account of floods in the year 1961. so houses in the villages were inundated an, therefore it was necessary to acquire an area of 5 acres from 'E' class land. In pursuance of this resolution, the aforesaid notification under Section 4 was issued. The petitioner was given a notice of this acquisition and she filed objections challenging the proposed acquisition. The grounds taken up to contest the acquisition were mainly that there was other 'E' class land available to the extent of about 800 acres and it was not necessary to acquire the land of the petitioner. The other objection was that the land belonging to the petitioner was not suitable for the purposes of extension of the gaothan as a nalla was flowing from the northern side of the petitioner's land. The petitioner also contended that the Gram Panchayat has proposed the acquisition of another land bearing S. No. 36, which showed that the petitioner's land was not suitable for the purposes of acquisition. When the petitioner filed the objection, the petitioner was represented through an advocate. On behalf of the petitioner three witnesses were examined in support of her objection. On January 21, 1969 the L.A.O/S.D.O made an order that a spot inspection will be made on February 5, 1969 The land was in fact inspect on February 4, 1969 when the brother the petitioner was present After this spot inspection the S.D.O. made an order that the case be reported to the Commissioner. Nagpur Division. Subsequently the notification under Section 6 came to be issued. After the notification under Section 6 was issued the petitioner has challenged this notification.

2. Mr. Chandurkar, the learned advocate for the petitioner, has canvassed that notification under Section 4 Suffers from vagueness. Mr. Chandurkar has invited our attention to the Schedule attached to this notification. He Submits that in the Schedule, the description of the land proposed to be acquired has not been given. It is his contention that all the schedule says is that an approximate area of 3 area 11 gunthas from s. no. 13 was proposed to be acquired. Relying on this description. Mr. Chandurkar argues that as the notification under Section 4 fails to properly specify and describe the exact property which was proposed to be acquired. The notification under Section 4 suffers from vagueness. It is not possible for us to accept this contention of Mr. Chandurkar. In the notification issued under Section 4, there is a clear mention that a plan of the lands proposed to be acquired was available for inspection at the office of the Land Acquisition Officer. A portion of the land which was proposed to be acquired was clearly delineated in this plan and the petitioner was given a full opportunity to find out as to which portion of S. No.13 was notified for acquisition. Even if the notification under Section 4 does not give the description of the area of 3 acres and 1 gunthas in view of the plan which was made available as for inspection. We fee that the land was properly specified and identified. As such it is not possible for us to accept this submission of Mr. Chandurkar that the notification under Section 4 was vague.

3. Mr. Chandurkar has then argued that the land which was sought to be acquired was not the best suited land for the purposes of extension of Gaothan. He submits that when the Gram Panchayat made by resolution. It resolved that another land bearing S. No. 36 should be acquired. It is not possible to accept even this submission of Mr. Chandurkar, It may be that the Gram Panchayat had resolved that S. No. 36 should be acquired. But the ultimate enquiry with regard to the proposed acquisition is to be made by the State Government. It may be that the acquisition proceedings were initiated on account of the resolution of the Gram Panchayat . However, for the purposes of the land acquisition Act, it is for the Government to decide which land is most suited for the acquisition and the decision of the State Government in the present case, on making an enquiry, has found that the land of the petitioner was best suited for the purposes of extension of Gaothan. We cannot, therefore, accept the submission of Mr.Chandurkar in this behalf.

4. Mr. Chandurkar has then canvassed a submission that there was abundant other land available for the purposes of acquisition. He submits that nearly 800 acres of 'E' class land was available and the acquisition . of the land of the petitioner was not therefore, justified. It is not possible for use to agree with this contention of Mr. Chandurkar . In the enquiry under Section 5A the question about the availability of the other land was taken into account. On this question the petitioner had led evidence and on a consideration of the evidence it has been found that no other suitable land was available. From the return which has been filed on behalf of the respondents. It appears that a spot inspection of the site was made by the Land Acquisition Officer and the Deputy Engineer also inspected the site and submitted a report. The question as to whether the other land was available was also considered and it was found that it was on hilly track and as such was not suited for the purposes of extension of the Gaothan. Since all the relevant facts were taken into account and the objections in this behalf were properly considered in this behalf were properly considered under Section 5A of the Land Acquisition Act, we must reject the submission of Mr. Chandurkar.

5. Lastly , Mr. Chandurkar has argued that the petitioner was not given an opportunity that the petitioner was not given an opportunity of hearing as is required under Section 5A of the Land Acquisition Act. Mr. Chandurkar has particularly relied on sub-section (2) of Section 5A which is to this effect:

'(2) Every objection under Sub-section (i) shall be made to the collector, or to the Land Acquisition Officer, where he has published a notification under sub-section 91) of Section 4. in writing and the Collector or ,as the case may be the Land Acquisition Officer shall give the objector opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry. If any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4 of sub-section (i). or make different reports in respect of different parcels of such land................'

Mr. Chandurkar argues that in the present case it was necessary to hear the arguments on behalf of the petitioner after the evidence was led by the parties. The grievance of Mr. Chandurkar is that after the local inspection it was necessary for the Land acquisition Officer to personally hear the arguments which could be advanced on behalf of the petitioner. In this context it has to be stated that no such opportunity was ever asked for on behalf of the petitioner. The petitioner was given a due notice of the proposed acquisition. The petitioner filed a written statement in support of the objection. The petitioner even examined three witnesses. After the evidence was recorded, the site was inspected and at the time of the inspection the brother of the petitioner was present. On these facts it appears to us that proper opportunity was given to the petitioner to show cause against the proposed acquisition . In the report of the Land Acquisition Officer, under Section 5A, all the points on the basis of which the petitioner wanted to resist the acquisition. were considered and after a consideration of these aspects the notification under Section 6 was issued. In the context of those facts, it does not appear to us that the petitioner can make any grievance that a proper opportunity was not given. Mr Chandurkar has relied on two unreported decisions of this Court . They are in Special Civil Appln. No. 216 of 1963 decided on 5-3-1975 (Bom) and in Special Civil Appln. No. 216 of 1963 decided on 5-3-1975 (Bom). In these two decisions the facts were quite distinct. In those case the parties who objected to the acquisition had not led any evidence. In the case with which we are dealing , we find that the petitioner had appeared through an advocate and had examined three witnesses in support of her objection. As such, the above two decisions are clearly distinguishable.

6. Mr. Chandurkar ha also relied on another unreported decision in Pradyumna v. State. (1970 mah LJ Note 25). Tehre also it is not clear whether the objector had led evidence in the enquiry under Section 5A As in the present case we are satisfied that due and reasonable opportunity has been given to the petitioner to show cause against the acquisition and he was properly heard as required under Sec 5-A(2) of the Land Acquisition Act. The proceedings, therefore , do not suffer from any infirmity.

7. There is no illegality in the acquisition and we do not see any reason to interfere in this case.

8 In the result , the petition is dismissed. The rule is discharged. However in the circumstances of the case cadre will be no order as to costs.

9. Rule dismissed


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