1. This writ petition is directed against the notification dated 19th December 1957 issued under Section 4 of the Land Acquisition Act, 1894, with the urgency clause and also notification under Section 6 of the Land Acquisition Act dated 5th of August 1958 issued without complying with the provisions of Section 5-A thereof. The petitioners are owners and occupants of land bearing S. Nos. 217-A and 448 of Rajpur-Hirpur admeasuring 4 acres 23 gunthas and 0 acre 17 gunthas, respectively. The 2nd respondent-Municipal Corporation of the City of Ahmedabad, passed a resolution No. 630 of 1957 dated 20th November. 1957, regarding acquisition of the lands of the petitioners together with other lands for the project of slum clearance, housing and road. Consequent upon the resolution, the then Government of Bombay was moved to take proceedings under the provisions of the Land Acquisition Act (hereafter referred to as 'the Act') for acquisition of the said survey numbers along with others. Thereafter, the Government of Bombay issued two notifications under Section 4 of the Act. One of the notifications whereby the lands of the petitioners were also sought to be acquired contained clause (3) whereby the urgency of clause was applied. Thereafter notification under Section 6 of the Act was issued by the Commissioner of Divisions on the 5th of August 1958 in respect of the notification to which the urgency clause had been applied and another on the 21st February 1959 to which urgency clause was not applied. We are only concerned with the two notifications, one under Section 4 to which the urgency clause was applied and the subsequent Section 6 notification which was issued without the inquiry under Section 5-A of the Act. Both these notifications are challenged by the petitioners in the petition on various grounds. But at the hearing Mr. A. H. Mehta, the learned advocate for the petitioners, only raised the following points for our consideration:-
I. Sections 77 and 78 of the Bombay Provincial Municipal Corporations Act provide a procedure for acquiring land for municipal purposes. Unless this procedure is followed, no proceedings under the Land Acquisition Act can be taken.
II. Commissioners of Divisions Act being an excessive delegation of the legislative powers to the State Government, is illegal and ultra vires. Consequently, the notifications issued by the Commissioner are also illegal and ultra vires.
III. The purpose of slum clearance, housing and road is not one of the duties either obliatory or discretionary and therefore, acquisition for such an unauthorised purpose is illegal and unauthorised.
IV. The notification issued under Section 4 and, in any event, the directions contained in para 3 thereof issued under Section 17(4) of the Act dispensing with the inquiry under Section 5-A is illegal and ultra vires, inasmuch as Government is not satisfied and has not applied its mind that the lands of the petitioners are waste or arable lands. Therefore, the whole of Section 4 notification or para 3 thereof is illegal and unenforceable and Section notification is consequently illegal and unenforceable.
2. Out of these four points raised for our consideration, contentions raised in points Nos. 1, 2 and 3 have already been set at rest against the land-owners by the decision of this High Court and also the Supreme Court. In (1966) 7 Guj LR 717, Kaniyalal v. State, the Division Bench of this High Court has held that the power conferred on the State Govt., under Section 78 of the Bombay Provincial Municipal Corporations Act, is, far from being a limitation on the power of the State Government under Section 6 of the Land Acquisition Act, an extension of that power which can be availed of where the conditions specified in Section 78 are fulfilled. Section 78 of the Municipal Corporations Act cannot be read as curtailing the wide power of the State Government under Section 6 of the Land Acquisition Act. Both the powers, one under Section 6 of the Land Acquisition Act and other under Section 78 of the Municipal Corporations Act are concurrent powers and neither excludes the other. The two conditions mentioned in Section 78 are disjunctive conditions and if either of them is satisfied, the machinery of Section 78 can be set in motion. This being the position, point No. 1 raised before us has to be rejected.
3. By the same decision, the Division Bench of this High Court, after examining the relevant provisions of law, came to the conclusion that the Commissioners of Divisions Act was a valid piece of legislature and therefore the notification issued by the Commr. Under the said Act was also valid and enforceable. Point No. 2, therefore before us must also be rejected on the authority of that decision.
4. The third point raised by Mr. Mehta is also covered by a decision of this High Court in Spl. Civil Appln. No. 460 of 1962 D/- 10-8-1965 (Guj) It has been held there that it was a purpose which would be covered by the duties to be performed by the Municipal Corporation and for the reasons given in the said judgment, we reject this contention also.
5. That leaves the last point raised on behalf of the petitioners. In Hiralal v. State, (1964) 5 Guj LR 924, the same point came to be considered and it was observed that under Section 17(1) and (4) of the Act, before an appropriate Government can direct that Section 5-A is to be dispensed with, the Government has to be satisfied that it is a case of urgency, and that the land in question is either waste or arable land. Though the satisfaction under Section 17(1) and (4) is a subjective one and is not open to challenge before a Court of law, it must be the satisfaction of a appropriate Government and that satisfaction is in respect of an objective fact, namely, the existence of an urgency and the fact that the land in question is either waste or arable land. It is obvious that such satisfaction can only be arrived at bny the appropriate Government applying its mind and taking into account relevant considerations as to whether the land is waste or arable and without such application of mind there can clearly be no satisfaction which is a condition precedent to the dispensing of an inquiry and a report by the Collector under Section 5-A.
6. Relying upon this decision, Mr. Mehta has urged that in the present case there is nothing in the impugned notification to show that mind was applied by the authority issuing the notifications as to whether the petitioner's lands were waste or arable lands. It is true that though the notification on the face of it may not indicate any such application of mind, it would be open to the Government to establish that as a matter of fact before the notifications were issued, and the urgency clause was introduced in Section 4 notification, mind was applied by the authority and thereafter the notifications were issued. For that purpose, Government may rely upon any documents in their possession to satisfy the Court about the application of mind to those relevant facts. In the present case, we find that no such documents have been produced on behalf of the respondents. However, in the affidavit in reply filed on behalf of the respondents by S.R. Pradhan. Under Secretary to the Government of Gujarat, Revenue Department, it is stated that the Commissioner of Ahmedabad Division, Mr. I. D. Kapadia had issued the notifications under Section 6 of the Act without urgency clause on the 21st February. In 1964 the office of the Commissioner of Divisions was ablished by the Government of Gujarat. The closed file of the Commissioner which also contained the two notifications under Section 4 could not be located in spite of their efforts and, therefore, their inability is pleaded and that under the circumstances it was not possible to state at this stage on what material the former Bombay Government was satisfied as the the nature of the land. But at the same time it is stated that a strong presumption arises that the Government was satisfied as to the nature of the land because on the same date two notifications under Section 4 were issued and published, one without urgency clause and one with urgency clause. We are not satisfied that any such presumption would arise merely from the fact of publication of two notifications, one with the urgency clause and the other without the urgency clause. It is a condition precedent to the application of this extraordinary power of depriving the subject of the advantage of an inquiry under Section 5-A that the subjective satisfaction by the authority issuing the notification must be reached and in any case such a satisfaction cannot be presumed from such flimsy material. We are, therefore, not prepared to raise any such presumption in favour of the Government in this case. It may be that because of circumstances, the Government would not be able to place before the Court for its satisfaction, that the prerequisites to the use of the urgency clause were complied with. But for whatever reasons if no such evidence and be placed before the Court, the result can be only one that it cannot be held that the requirements of law were complied with by the authorities.under the circumstances, the result if that the 4th contention raised on behalf of the petitioners has to be upheld. The question, however, arises as to what extent. We are clear in our mind that para 3 of the notification under Section 4 whereby the direction was given under sub-section (4) of Section 17 that the provisions of Section 5-A of the Act shall not apply, is distinctly severable from the rest of the notification under Section 4 notification so as to hold that it becomes a useless piee of paper. This being so, the only part of Section 4 notification which has to be struck down is para 3 and we shall order accordingly. The remaining part of Section 4 notification remains intact to be enforced if at all available to the Government to do so under law.
7. As regards Section 6 notification dated 5th of August 1958, the whole of that notification is invalid as Section 5-A inquiry has not been held.
8. In the result, the petition succeeds. Para 3 of Section 4 notification dated 19th December 1957 is quashed without affecting the rest of the Section 4 notification, so far as it affects the land of the petitioner and Section 6 notification dated 21st February 1959 is also quashed so far as it affects the lands of the petitioners. No order as to costs.
9. Petition allowed.