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Natwarlal Jerambhai Patel Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 864, 1603 and 1604 of 1967
Judge
Reported inAIR1971Guj264; (1971)GLR146
ActsLand Acquisition Act, 1894 - Sections 4, 5A, 17(1) and 17(4); Constitution of India - Article 226
AppellantNatwarlal Jerambhai Patel
RespondentState of Gujarat and ors.
Appellant Advocate A.M. Joshi and; N.R. Oza, Advs.; Advocate General Served
Respondent Advocate B.J. Shelat and; K.A. Dabu, Asst. Government Pleaders,;
Cases ReferredJayantilal Amratlal v. F. N. Rana
Excerpt:
property - acquisition - sections 4, 5a, 6, 17 (1) and 17 (4) of land acquisition act, 1894 - petitioners challenged notifications issued under sections 4 and 6 acquiring their land ostensibly for public purposes - section 4 provides notification to acquire land when it is needed for public purposes - government failed to comply with provisions of sections 17 (1) and (4) - notifications issued under section 4 and 6 illegal, invalid and unauthorized - compensation to be paid to owner of land. - - section 6 of the act provides that when the appropriate government is satisfied after considering the report, if any, made under section 5a sub-section (2), that any particular land is needed for a public purpose a declaration shall be made to that effect. sub-section (4) of section 17 of the..........applications the petitioners challenge the notifications issued under sections 4 and 6 of the land acquisition act (hereinafter referred to as the act), acquiring their lands for the extension of village site urgently under section 17(4) of the act by dispensing with the inquiry under section 5a of the act. in special civil applications nos.1603 and 1604 of 1967, the lands that are sought to be acquired are respectively s. nos. 11 and 14 situated in village kholeshwar, taluka kamrej, district surat. in these petitions the notifications under sections 4 and 6 of the act were issued on january 24, 1967 and october 6, 1967 respectively. in special civil application no. 864 of 1967 the lands that are sought to be acquired are s. nos. 925, 950-a, 954 and 953 situated in village.....
Judgment:

A.D. Desai, J.

1. In this group of special civil applications the petitioners challenge the notifications issued under Sections 4 and 6 of the Land Acquisition Act (hereinafter referred to as the Act), acquiring their lands for the extension of village site urgently under Section 17(4) of the Act by dispensing with the inquiry under Section 5A of the Act. In Special Civil Applications Nos.1603 and 1604 of 1967, the lands that are sought to be acquired are respectively S. Nos. 11 and 14 situated in village Kholeshwar, Taluka Kamrej, District Surat. In these petitions the notifications under Sections 4 and 6 of the Act were issued on January 24, 1967 and October 6, 1967 respectively. In Special Civil Application No. 864 of 1967 the lands that are sought to be acquired are S. Nos. 925, 950-A, 954 and 953 situated in village Ichchhapore, Taluka Chorasi, District Surat. The notifications under Sections 4 and 6 of the Act were issued on February 16, 1967 and May 30, 1967 respectively. In all these petitions the lands are sought to be acquired to accommodate the flood stricken residents of the respective villages. The acquisition notifications are challenged in the petitions on various grounds but at the time of argument the points pressed were:

(1) That the authorities applied urgency clause on misreading the provisions of sub-sections (1) and (4) of the Section 17 of the Act. That there was no legal application of mind with the result that the notifications issued under Sections 4 and 6 of the Act acquiring the lands of the petitioners are illegal, invalid and unauthorised:

(2) That the urgency clause was applied mala fide. This point was pressed in Special Civil Application No. 864 of 1967.

2. In order to appreciate the contentions it is necessary to refer to the relevant provisions of the Act. Section 4 of the Act provides that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the Official Gazette. Section 5A of the Act provides that any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days after the publication of the notification under S. 4 of the Act, object to the acquisition of the land. The objections are to be addressed to the Collector. The Collector then has to give the objector an opportunity of being heard. After the inquiry the Collector has to submit his report to the Government. Section 6 of the Act provides that when the appropriate Government is satisfied after considering the report, if any, made under Section 5A sub-section (2), that any particular land is needed for a public purpose a declaration shall be made to that effect. The declaration is required to be published in the Official Gazette. The said declaration of the Government that the land is required for public purpose or for a company is conclusive evidence that the land is needed for a public purpose or for a company. After such a declaration proceeding for determining the compensation payable to the owner of the lands which are acquired is to be put in the motion after giving notices to the persons interested in the land. The Collector after holding an inquiry gives his award determining the compensation payable to the owners of the lands whose lands are acquired. Section 16 provides that when the Collector had made an award under Section 11 of the Act, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all enumbrances. Section 17 of the Act provides that in cases of urgency whenever the appropriate Government so directs, the Collector, though no such award has been made, may on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), take possession of any land needed for public purpose or for a company. Such land thereupon vests absolutely in the Government free from all encumbrances. Sub-section (4) of Section 17 of the Act provides that in cases of any land to which, in the opinion of the appropriate Government the provisions of sub-section (1) or sub-section (2) are applicable the appropriate Government may direct that the provisions of Section 5A shall not apply and if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4, Sub-section (1). It is thus clear that under Section 17 (1) and (4) of the Act before an appropriate Government can direct that the provisions of Section 5A of the Act are to be dispensed with, the Government has to be satisfied that the case is one of urgency. Though the satisfaction under Section 17(4) of the Act is subjective one and not open to a challenge before a Court of law, the appropriate Government must be satisfied in respect of an objective fact namely the existence of urgency. Such a satisfaction can only be arrived at by the appropriate Government after applying its mind and taking into account relevant consideration regarding the urgency. The condition precedent to the exercise of powers under Section 17(1) and (4) of the Act is that the Government must be satisfied that the possession of the land is required urgently. The question is what is the meaning of the phrase 'in cases of urgency' occurring in Section 17(1) of the Act, so that the appropriate Government can dispense with under S. 17(4) of the Act the procedure of statutory inquiry contained in Section 5A of the Act enabling the owner to raise objections before the acquiring authority. The provisions of Section 5A of the Act enjoin a hearing to a person who is entitled to oppose acquisition. This is a statutory right vested in a person who is entitled to oppose acquisition. What sub-section (4) of Section 17 empowers the Government is that, in the case of any land to which in the opinion of the appropriate Government the provisions of sub-section (1) or section (2) are applicable, the appropriate Government may direct that the provisions of Section 5A of the Act would not apply. The phrase 'in case of urgency' has to be read in the light of the provisions of Section 5A of the Act. The urgency contemplated by the provisions of Section 17(1) and (4) of the Act, therefore, must be of such a character that it cannot brook the delay of the period of inquiry under Section 5A of the Act. The urgency must be such that the period required for inquiry under Section5-Aof the Act would cause great prejudice or inconvenience so as to defeat the very purpose of acquisition and the purpose of acquisition cannot be fulfilled. The urgency must be such that the purpose of acquisition cannot await the period of 30 days and the reasonable period of the inquiry under Section 5-A of the Act. Normal procedure of acquisition under the Act is to issue a notification under Section 4 of the Act and to give the person affected an opportunity to file his objections which are to be heard by the Collector and to be considered by him and the Government before the issuance of notification under Section 6 of the Act. The provisions contained in Section 17(1) and (4) of the Act are in the nature of exception to this normal procedure. Cases in which compliance with the procedure prescribed by Section 5-Aof the Act can be dispensed with, are those, in which on account of the exceptional circumstances of the case, acquisition does not brook any delay and is urgent. The provisions of Section 17 (1) and (4) of the Act deprive a person of his statutory right of filing objections and of being heard, and therefore, are rarely to be exercised or could be exercised only when the condition precedent to the exercise of the power is fulfilled. It is true that the provisions of Section 17(1) and (4) of the Act provide that the Government has to be satisfied that the lands are urgently needed and this opinion of the Government is not justiciable but it is to be noted that the opinion of the Government must be based on the objective fact and the condition precedent to the exercise of power under Section 5-Aof the Act must be fulfilled. The condition imposed by Section 17(1) is a condition upon which the jurisdiction of the State Government depends and it is obvious that by wrongly deciding the question as to the urgency of the land, the State Government cannot give itself jurisdiction to give direction to the Collector to take immediate possession of the land under Section 17(1) of the Act. It is well established that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact the High Court is entitled, in a proceeding of writ to determine, upon its independent judgment, whether or not that finding of fact is correct. Even though the power of the State Government has been formulated under Section 17(4) of the Act in subjective terms the expression opinion of the State Government can be challenged as ultra vires in Court of law if it could be shown that the State Government misconstrued the provision of the Section or never applied its mind to the matter or the State Government did not honestly from that opinion or there are no material upon which the authority could from the requisite opinion or the action of the State Government is mala fide. Vide Raja Anand Brahma Shah v. State of Uttar Pradesh. AIR 1967 SC 1081 and Rohtas Industries Ltd. v. S.D. Agarwal, AIR 1969 SC 707. If, therefore, in a case wherein the lands under acquisition are not actually needed urgently but the appropriate Government forms such an opinion, the Court of law can interfere. The provisions of Section 17(1) and (4) of the Act have been interpreted in the same way in which we have done by the Mysore High Court in Thirumalaiah v. State of Mysore AIR 1963 Mys 255; and Kashappa Shivappa v. Chief Secy to the Govt. of Mysore, AIR 1963 Mys 318; and by the Kerala High Court in K. Seshagir Maller v. Special Tehsildar for Land Acquisition, Kozhikode, AIR 1965 Ker 92.

3. Thus having laid down what is necessary to be established to invoke the exercise of power conferred under Section 17 (1) and (4) of the Act, let us apply the law to the cases before us. In Special Civil Applications Nos. 1603 and 1604 of 1967 the facts are similar. In both the petitions the petitioners have alleged that there was no need to apply the urgency clause. The urgency clause was applied at the time of issuance of the notifications under Section 4 of the Act. The Officer who issued the notifications under Section 4 of the Act is now dead and the Government is not in a position to file his affidavit to show the reasons why the urgency clause was sought to be applied in these cases. Shri S.N. Sawant and Shri V.V. Ramasubarao. Under-secretaries to Government of Gujarat have filed affidavits on behalf of the State Government stating that the present village site of Kholeshwar village is situated on the bank of river Tanti and the bank has been damaged every year by flood water. It was, therefore, feared that the people of the village would be in danger. The population of the village is also increasing and the existing village site was not found sufficient to accommodate the growing population of the village. The existing residential sites were in low lying area and were not suitable or accommodating the population. The officers further stated that the residents of village Kholeshwar had applied on October 21, 1963 to the Taluka Development Officer, Kamrej, requesting that the village was situated just on the bank of river Tapti and the bank was damaged from year to year and as such it was feared that the village would come into danger at any moment. It was further alleged in this application that the population of the village was increasing and the village site was not sufficient to meet the requirement. After inquiry at various levels the Government in Revenue Department by order dated June 10, 1966 accorded sanction to acquire land under S. Nos. 11 and 14 of the village. After preliminary inquiries the Government was prima facie satisfied that it was necessary to acquire the land urgently. The notifications under Section 4 of the Act were issued on January 24, 1967 applying the urgency clause and the public notices under S. 4(1) of the Act were issued on March 13, 1967. The notices were published on the notice board of the Taluka Office on March 24, 1967, at the village Chore on March 20, 1967 and on the site on March 20, 1967. The petitioners were served with the notice under Section 4(1) of the Act on March 21, 1967 informing that the lands were being acquired under the urgency clause and the provisions of Section5-Aof the Act were not applicable. It is thus clear that the application to acquire the land was made by the village people on October 22, 1963 and the notification under Section 4(1) of the Act acquiring the land urgently were issued only on January 24, 1967. This conduct of the Government, clearly indicates that the State Government waited for a long period before issuing the notifications under Section 4(1) of the Act dispensing with the proceeding under Section5-Aof the Act. It appears that as the lands were sought to be acquired to accommodate flood stricken people, the authorities took the view that the urgency provisions contained in Section 17(1) and (4) of the Act automatically applied to the case. The urgency provisions can apply only if the process of acquisition could not brook the delay of the period of 30 days and the reasonable period required for an inquiry under Section 5-Aof the Act. The facts of the case clearly indicate that the instant cases are not one which could be covered by the provisions of Section 17(1) and (4) of the Act inasmuch as the application to acquire land was made by the village people to the Government in the year 1963, the Government decided to take the land in year 1966 and ultimately the notifications under Section 4 of the Act dispensing the provisions of Section 5-Aof the Act were issued on January 24, 1967. It is to be noted that the notifications were issued in January 1967, at which time, there was no danger of any flood nor was there any material on the record to show that the population had so increased at the time that it could not brook the delay of 30 days and the reasonable period of inquiry under Section 5-Aof the Act.

4. In special Civil Application No. 684 of 1967, the petitioners have alleged that some of the residents of village Ichchhapore who were Koli by community had applied to the Collector. Surat on July 15, 1958 for acquiring lands including S. Nos. 952 and 953 of village site of Ichchhapore, stating therein that they were ready and willing to take the said land for building houses for their residence and for tethering their cattle. In pursuance of the said application an inquiry was made by the Special Land Acquisition Officer into the bona fides of the application but no further steps were taken in pursuance thereof. In the year 1966 when the General Election in the country was approaching nearer and nearer, on of the Hon'ble members of the Assembly who was also Deputy Minister in the then Cabinet who was contesting the Election and assured these Kolies who had larger number of votes in the village Ichchapore and had great influence on other Kolies in the surrounding villages and who belong to the opposite party, to get the acquisition proceedings in respect of the lands started if all the votes of the voters of the Koli community in village Ichchhapore and of their relatives residing in Taluka Chorasi were cast in favour of the said Hon'ble Member. The said Hon'ble Member exercising her influence on the relevant authorities got the notification issued under Section 4 of the Act on February 3, 1967. It was further stated by the petitioners that S. Nos.949 and 951 and other survey numbers were available for accommodating the flood stricken residents but instead of acquiring these survey numbers the authority issued notifications acquiring lands of the petitioners. It was further alleged that the lands which are sought to be acquired are situated at lower level than the village site and, therefore, the acquisition was mala fide. In support of this contention the petitioners have filed affidavit of Mr. K.A. Kapadia who is an Architect & Consulting Engineer. Mr. Kapadia stated in his affidavit and the report annexed thereto that S. No. 949 is situated at high level and that it is not affected by high tide water. He further stated that the village site of village Ichchhapore being between 6 to 8 feet higher tide level was and is never affected by high tide water. According to the expert the village site being 6 to 8 above high tide level and the lands under reference being 2 feet above high tide level in a case of heavy flood in river Tapti the lands under reference would be first affected and would submerge into water much below the village site. Mrs. Urmilaben Bhatt, Deputy Minister of Health, has filed an affidavit denying the allegations that in the year 1966 when the general election in the country was approaching nearer she had assured the people of village Ichchhapore to get the acquisition proceeding in respect of the lands in question started, if all the votes of the voters of Koli community in village Ichchhapore and of their relatives residing in villages situated in Chorasi Taluka were cast in her favour. Thus the question of exercising of undue influence by the Deputy Minister is a disputed one. There is no dispute that the village people had made an application to acquire the land in the year 1958. The record of the case clearly indicates that no steps were taken by the Government till 1967 to acquire land for the village people. It was only on February 15, 1967 that the Government issued the notification under Section 4 of the Act containing a direction under Section 17(4) of the Act dispensing with the procedure under Section5-Aof the Act. This conduct of the Government clearly indicates that there was no urgency to take immediate possession of the lands in question in exercise of the powers under Section 17(1) and (4) of the Act. Moreover, the petitioners have stated in their petition that their lands which are sought to be acquired are situated on the lower level than the village site and, therefore, the acquisition is mala fide. The Government was given an opportunity to have the say on this point but no affidavit is filed in spite of the time given to the Government . The consequence is that the statement of the petitioners that the lands are situated on lower level remains unchallenged and that being the position, the acquisition of the lands of the petitioners in order to accommodate the flood stricken people, is nothing but an abuse of power and it must be said that the Government made a colourable use of power conferred under Section 17(1) and (4) of the Act.

5. The question then arises what should be the order on the applications of the petitioners. It was argued by the learned advocate for the petitioners that the notifications under Sections 4 and 6 of the Act should be quashed in entirety. On the other hand Mr. Shelat argued that the notifications under Section 6 of the Act may be quashed in entirety but not the notifications under Section 4 of the Act. The direction in the notification under Section 4 of the Act that the provisions of Section 5-Aof the Act shall not apply in respect of the lands acquired may only be quashed. Mr. Shelat further argued that he is ready and willing to give an undertaking on behalf of the State Government that the objections that may be filed by the petitioners within the time specified by this Court shall be considered by the authorities and on the basis of this undertaking the entire notifications under Section 4(1) of the Act need not be quashed. Mr. Shelat relied on two decisions of this Court. The first decision which is relied upon by Mr. Shelat is reported in Hiralal Harjivandas v. State of Gujarat, (1964) 5 Guj LR 924. In that case it appears that an undertaking was given by the State Government and which was supplemented by acquiring body that the objections of the petitioners would be considered even though they were beyond the period of 30 days of the notification issued under Section 4(1) of the Act. The Division Bench consisting of Shelat C.J. and my learned brother took the view that a notification under S. 4 of the Act was severable because the part of the notification declaring that the lands are needed or are likely to be needed for the public purpose was separate and independent of the part of the notification directing that the provisions of Section 5-Aof the Act shall not apply. In Ishwarlal Girdharlal Joshi v. State of Gujarat, (1967) 8 Guj LR 729 a Division Bench of this Court consisting of Bhagvati J. (as he then was) and N.G. Shelat J. took the view that it was well settled that if a direction given under Section 17(4) of the Act is invalid, the direction alone would be liable to the struck down and not the whole notification under Section 4 of the Act since the direction can be easily severed without quashing the notification under Section 4 of the Act. Now under the provisions of Section 5-Aof the Act, any person interested in any land which has been notified under Section 4(1) of the Act as being needed or likely to be needed for a public purpose or for a company may within 30 days after the issue of the notification, object to the acquisition of the land. The objections are to be filed before the Collector. Therefore, the authority to decide whether the objections have been filed within the period of 30 days or not, is in the first instance, the Collector. The Collector, though a servant of the State when he exercises the power under Section 5-Aof the Act exercises the statutory power. The Collector when exercising statutory power acts on his own. The Collector is an independent officer. The Supreme Court in Jayantilal Amratlal v. F. N. Rana, AIR 1964 SC 648 at p.649, while dealing with the question of the powers of the Collector under Section 5-Aof the Act has observed as under:

'There was in the present case no delegation of any judicial powers vested in the Central Government. The power to hold an inquiry is statutorily vested in the Collector and the Collector has exercised that power.'

Thus the Collector when he exercises the power under Section 5-Aof the Act acts as an independent statutory officer and not as agent or delegate of the Government. The Collector when exercising the power under Section 5-Aof the Act is not bound in discharge of his statutory functions to follow any instructions given by the Government. The decisions of this Court which have been cited hereinbefore proceeded an assumption that the Government had the power to direct the officer to receive the objections even though the same had been filed after the statutory period of 30 days provided under Section 5-Aof the Act. It was not noticed by the Court nor it was argued before the Court that the undertaking by the Government cannot bind the Collector while discharging his functions under Section 5-Aof the Act. It is clear that such an undertaking given by the State cannot bind the Collector nor can the Court on the basis of an undertaking aid a party to contravene the provisions of the law. The Government cannot take into consideration the objections filed after the statutory period. The period within which the objections are to be filed is an essential requirement and it is only these objections which are filed within the period provided in the section that can be considered. The consideration of the objections filed within the statutory time is condition precedent to exercise of power under Section 5-Aof the Act and it cannot be extended by deciding to take into consideration objections filed beyond the statutory period. We are aware of the fact that the Government is not bound by the report of the Collector under Section 5-Aof the Act and also that the decision of the appropriate Government on the objections shall be final. The statute casts a duty on the officer to report and the Government is bound to consider the same before issuance of notification under Section 6 of the Act. What is final is the decision of the appropriate Government on the objections i.e., the decision on merits. The Government can consider only those objections which are filed within the period of 30 days as provided in Section 5A of the Act. The said requirement is also a condition precedent to the exercise of power by the appropriate Government, under Section 6 of the Act. It is, therefore, clear that this Court can have no jurisdiction to issue a direction to the Collector to receive the objections if filed beyond the statutory period. The aforesaid decisions of this Court were decisions per incuriam as the Collector's position while exercising powers under Section 5-Aof the Act was not noticed by this Court or was not brought to the notice of the Court and, therefore, cannot have the force of binding authority. The notification under Section 4(1) of the Act contained a direction for dispensing with the inquiry under Section 5-Aof the Act. Admittedly Section 5-Aof the Act gives to the person affected a right to file objections within 30 days from the date of publication of the notification under tion 4 of the Act. There is no dispute that the said statutory period has expired in the present cases. It is to be noted that in these cases the notifications are required to be quashed because the Government has failed to comply with the provisions of Section 17(1) and (4) of the Act. The notifications are not required to be quashed for any fault of the petitioners. Under the law the petitioners are entitled to compensation at the price prevalent on the date of the notification under Section 4 of the Act. There is no reason why the citizens should be deprived of the statutory right of receiving compensation at the price prevalent on that date due to the fault of the Government in exercising powers under Section 17(1) and (4) of the Act.

6. The result is that we declare the notifications under Section 4 and 6 of the Act in their entirety, in each of these cases, as illegal, invalid and unauthorised. The respondents are restrained from enforcing the said notifications against the petitioners. The petitioners had obtained interim relief with regard to taking of possession of the lands. The parties are agreed before us that the petitioners have been and are in possession of the land sought to be acquired under the notifications under Sections 4 and 6 of the Act. Under the circumstances it is not necessary to pass any order for restoration of possession of the land. The rule issued on the petitions, in each of these cases, is made absoluted with costs.

7. Application allowed.


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