A.D. Desai, J.
1. The facts as they ,appear from record are that S. Nos. 540/1, 540/2 and 540/3 were in possession of the petitioner as a tenant and under the provisions of the Tenancy Act, he had become a deemed purchaser of these lands in the year 1956. A notification under section 4 of the Land Acquisition Act (hereinafter referred to as the Act) was issued on July 21, 1971 and several survey numbers which included the aforesaid 3 survey numbers were declared likely to be needed for public purpose, namely, for the construction of houses by the Gujarat Housing Board under the development scheme. A personal notice of this acquisition was issued to the petitioner on July 21, 1971 but in the said notice S. No. 540/1 was not mentioned as the land which was to be acquired. The petitioner in pursuance of the acquisition notice served upon him, filed his objections under Section 5-A of the Act raising many objections to the acquisition of the said two survey numbers. It was contended by the petitioner that the said two lands were situated near the city of Surat and were within the extended limits of the Municipal Corporation and, therefore ought not to have been acquired according to the policy decision taken by the Government. The petitioner also raised a contention that he had constructed a residential house and installed a water pump on the well in S. No. 540/2 and, therefore, the same should not have been acquired in view of the Government policy not to acquire land on which residential houses were built. After receiving the report of the Ijand Acquisition Officer, the Government issued notification under section 6 of the Act on August 3, 1972, declaring that the Government was satisfied that the lands under acquisition were needed for public purpose for construction of houses by the Gujarat Housing Board. The notification under section 6 is challenged by the petitioner on various grounds but it is not necessary to mention all of them. The pertinent grounds on which the notification of acquisition under Sections 4 and 6 are challenged are: (1) that in respect of S,. No. 540/1 no personal notice of acquisition was served on the petitioner as required by Rule 1 framed by the State Government under Section 55 of the Act and, therefore, the acquisition of lands was illegal and invalid; (2) that on S. No. 540/2 there is pacca house constructed by the petitioner in the year 1968 and the same is being used for residence of the petitioner and his family. The Government has taken a policy decision not to acquire such lands having residential houses. In pursuance of this policy the Government had released S. No. 539 which was acquired under the impugned notification because residential house was being constructed thereon at the date of acquisition. Thus the, action of the Government of acquiring the said land is contrary to the declared Government policy and thus violative of Article 14 of the Constitution; and (3) that the acquisition of lands is contrary to the declared policy of the Government to the effect that in view of the shortage of residential accommodation in the City, the lands of the persons who are constructing structures either by their own effort or by forming co-operative societies should not be acquired but lands at a distance of quarter or half a mile there from may be acquired. The acquisition of the lands of the petitioner, therefore, is in contravention of the declared policy of the Government and thus violative of Article 14 of the Constitution,
2. Mr. N, M. Parmar, Section Officer, Revenue Department of the Government of Gujarat, has filed an affidavit on behalf of the State Government, contending that the notice in respect of acquisition of S,. No. 540/1 was served on Shri Gajanand Dalpatbhai, whose name appeared in the record of rights and who was the only interested person as per the said official record. It was contended that no notice of acquisition of S. No. 540/1 was necessary to be served on the petitioner, as he was not the person having any interest in the land. It is further stated in the said affidavit that the Government at a certain stage did consider the situation and decided that land at S. No. 539 notified under section 6 of the Act should be withdrawn from such acquisition inasmuch as the said land had been used for constructing houses by the owner thereof and the construction work had been commenced prior to the issue and publication of the section 4 notification. The land of the petitioner at S. No. 54012 is an agricultural land and only farm-house was constructed thereon by the petitioner. The Government, therefore, did not consider it necessary to withdraw the said petitioner's land from the acquisition. It is further stated in the affidavit that as the suit lands were surrounded by several buildings constructed by the Co-operative Housing Societies and therefore they were more suitable for the construction of the houses by the Gujarat Housing Board. The selection of the lands in dispute was for the public purpose and, therefore the same is valid and legal.
3. We shall first take up the question of the acquisition. of S. No. 540/1. There is no dispute that notice of acquisition in respect of the said land was not served on the petitioner as required by Rule 1 of the rules framed under Section 55 of the Land Acquisition Act, This Court in Ashokkumar Gordhanbhai v. State of Gujarat, (1969) 10 Guj LR 503, had to consider the provisions of the said Rule 1 and the Court observed that all the persons in occupation about whose interest the Government in normal circumstances will ,be expected to know have to be given personal notice so that they can file their objections in respect of the acquisition. The affidavit filed on behalf of the State Government indicates that no notice in respect of acquisition of the said land was given to the petitioner as his name did not appear in the record at the relevant time and because he was not interested person in the land. Mr, M. B. Shah produced from his file record of Tights pertaining to S. No. 540/1 to show that the occupier of the said survey number was one Gajanand Dalpatram. These records of rights are of the year 1968. Even in these record of rights the name of the petitioner is shown as a protected tenant and, there is no dispute that a tenant is an interested person in the land. According to the entries in these record of Tights a notice of acquisition ought to have been issued to the petitioner. But what is relevant is the record Of Tights of the year 1970-71. The said year is relevant year -because the acquisition notification under section 4 of the Act was issued in that year. The record of rights of this year is also produced by Mr. M. B. Shah from the file on the perusal of which Mr. Partnar, the Section Officer, had filed his affidavit. In the entry in column of occupier the name of the petitioner is shown and mine of Gajanand Dalpatram. is no where mentioned therein. Therefore, at the relevant time in the record of rights only the name of the petitioner as an occupier is shown and hence he was the person who was entitled to the notice, of acquisition under section 4 of the Act. The statements made by the Section Officer are thus clearly false to his knowledge. He had in his affidavit made such statements which would clearly mislead the Court and prevent it from discharging its duty to do justice. T'his Court takes a very serious view of such conduct of the officer. It is most pertinent to note that neither the Special Land Acquisition Officer nor the Officer who decided not to release the lands in dispute from the acquisition has filed affidavit in this Court. The Government only filed affidavit of a mere Section Officer who after going through the record in accordance with his ability has given gloss to the facts after perusing the record and the material statements made by him in his affidavit are found by us to be false as per the documents produced in this Court from his record. At this stage we shall consider the validity of the practice which has developed in this Court. On behalf of the Government an affidavit in re-joinder is usually filed by one of its officers but the documents mentioned therein with reference to which such affidavit is filed are not produced with the result that the Court has to act upon the opinion of the Officer with regard to the correct meaning of the documents. In effect the Court has to act upon the secondary evidence. This practice is not in accordance with law which requires that primary evidence shall be produced in Court. If the Government wants to claim; a privilege with regard to any document on which reliance is placed by the Officer who files the affidavit, it may claim the same according to law but otherwise all the relevant documents must be filed along with the affidavit. If necessary documents are filed with the affidavit, there would be no case in which injustice will result. The other side will have also a fair opportunity to know the correct facts of the case of the opponent. The aforesaid practice which is followed in this Court is contrary to law and leads to injustice. It must not be left to the Court or the opponent to call upon the Government to produce documents which are relied upon by the Officer filing the affidavit. For the aforesaid reasons we deprecate this practice and require production and filing in Court all the relevant documents which are relied upon by the officer in the affidavit unless in respect of such documents or any one of them a privilege is claimed.
4. Now as per the record of rights of the year 1970-71, the petitioner was the occupier of S. No. 540/1 on the date of acquisition notification under section 4 of the Act and notice of the said acquisition ought to have been served on him. It was contended by Mr. Shah that the petitioner had attended the inquiry under Section 5-A of the Act, and, therefore, he must have the knowledge of acquisition of S. No. 540/1. Now the petitioner has produced the objections which he had filed insurance of the acquisition notice served upon him and they relate only to S. Nos. 540/2 and 540/3. Even the Special Land Acquisition Officer has not filed any affidavit indicating that during the course of inquiry under Section 5-A of the Act he had drawn the attention of the petitioner that S. No. 540,'l was to be acquired. It is obvious therefore, even during the course of the inquiry the petitioner had no knowledge that S. No. 540/1 was to be acquired by the Government under the notification issued under section 4 of the Act. Mr. Shah tried to rely on certain observations made by this Court in Madhukantaben wd/o Maganlal Dwarkadas Shah v. State of Gujarat, 14 Guj LR 506 = (AIR 1973 Guj 176). In that case the Court considered various circumstances including the fact that the notice in the name of the deceased owner was served on the widow which she refused to accept. On her refusal the notice was thrown in her house. It is on these facts that an inference was drawn that the widow had the notice of acquisition. The facts of that case axe thus different from ours. In this case there is no evidence that the petitioner had any knowledge of the acquisition of S. No. 540/1. The petitioner was thus deprived of his right to have to file his objections in respect of S. No. 540/1 and the acquisition therefore, of the said survey number is illegal and bad.
5. The Gujarat Housing Board wanted to acquire lands on which residential constructions were raised by the owners thereof for their personal use and for this purpose there was a correspondence entered into between the Government and the Housing Board. A letter dated February 1, 1966 was addressed by the Deputy Secretary, Revenue Department, to the Commissioner of the Gujarat Housing Board and in that letter the Government policy was specifically stated. The policy of the Government was that as interested persons require lands for their personal residence, such lands should not be acquired and the Government did not agree with the view of the Housing Board that such lands should also be acquired for the Board. It was further stated, that in view of the shortage of residential accommodation in the city the people are constructing residential houses on their own accord or by forming co-operative societies and, therefore, the lands surrounding such developing area should not be acquired but lands at a distance of quarter or half a mile may be acquired. It is to be noted that the letter dated February 1, 1966 which was addressed by that Deputy Secretary, Revenue Department to the Commissioner of the Housing Board, was under the instructions of the Government forwarded to all the Collectors, Deputy Collectors, Special Land Acquisition Officers and they were required to scrutinize the proposals of the Housing Board in view of the Government policy in accordance with the principles stated in the said letter. These instructions were not well understood by the concerned officers end, therefore, a further circular at memorandum was issued on July 24, 1967, In para 2 of the said circular it is stated that the Housing Board should make its proposal in such a way that such proposal would not come in conflict with the aforesaid directions contained in the letter dated February 1, 1966. The proposal of the Housing Board should be such that it must supplement the housing activities carried on by the individuals or co-operative societies. in order to remove the misunderstanding the Government stated that the Housing Board can make proposal for acquisition of lands provided that at the time of such proposal there were no activities carried on the lands for the purpose of erection of residential premises. This should not mean that the land within the municipal area should not be acquired. It is thus obvious that the Government had taken a policy decision not to acquire lands on which structures had been erected for residential purposes or lands on which at the date of acquisition constructions of residential premises were going on. It was also the Government policy not to acquire lands surrounding the residential constructions erected by individuals or co-operative societies. In pursuance of this policy of the Government, who had acquired S. No. 539 under notification under section 4 of the Act under which the disputed survey numbers of the petitioner were also acquired had, been released from the acquisition. The Government did consider the question of the release of the, petitioner's land S. No. 540/2 but it decided not to release the same from the acquisition because the land is used as agricultural land and only a farm-house bad been constructed thereon by the petitioner. Now the contention of the petitioner is that on S. No. 540/2 he had constructed a pacca house in the year 1968 and the same is being used by the petitioner and the members of his family for residence since then. The record of rights produced by Mr. Shah from his file indicates that there was a construction on S. No. 540/2. Mr. Shah had also produced the report of the revenue circle inspector filed in pursuance of para 104 of the Manual of Land Acquisition Act which indicates that at the time of acquisition there existed on S.. No. 540/2 a big pacca building. The said report also indicates that on S,. No. 539 the construction of the houses was in progress. The statement of the petitioner that the house in S. No. 540/2 is since 1968 used -as residence is not denied. The petitioner has stated in the objections which he had filed under Section 5-AA of the Act that the house had been constructed by him after obtaining the necessary permission. This statement of the petitioner is also not denied by the State Government. It is, therefore, clear that on the date of acquisition there existed a residential pacca building on S. No. 540/2 and which building is being used by the petitioner for his reside-nee since the year 1968. The Government has adopted the policy not to acquire lands on which there are residential premises and further not to acquire lands surrounding such developing area. The petitioner has stated that surrounding the lands under acquisition several buildings were constructed before the notification of the acquisition was issued. Co-operative societies named as Kalpana, River Side, Ravi Park, Sneh and Smruti, Sangana, Gandhinagar Society for the staff of Bank of India, Vandana, Anand Kunj, Samarpana, etc. had constructed buildings in last 4 or 5 years before the year 1972. It is thus clear that the lands under acquisition at the date of their acquisition were situated in developed area and according to the declared policy of the Government the same could not be acquired for the purpose of Housing Board. The Government sought to support the acquisition of the petitioner's lands on the ground that as the said lands were surrounded by several buildings constructed by the co-operative societies, the said lands were more suitable for the construction of houses by the Housing Board. The Government has taken a policy decision not to acquire the land on which constructions had been raised for personal use or the lands surrounding whereof construction activities were carried on by the individuals or by the cooperative societies for erecting residential premises. The Government decision was not to acquire lands within the area of quarter or half a mile of such developed area. Once the Government lays down the policy it has to follow it uniformly. The Government cannot resort to such policy in certain cases where it likes and depart from the said policy as it chooses. Having laid down a definite policy the Government cannot follow the irrational method of pick and choose. Such actions of pick and choose will be arbitrary and violative of Article 14 of the Constitution and have to be struck down being contrary to the constitutional provisions. In the present case the Government released S. No. 539 in pursuance of the declared Government policy because the owner of the said land was erecting constructions for his residential purpose. The record clearly shows that the petitioner had constructed his residential house in the year 1968 and he makes personal use, thereof since the date of its construction. The case of the Government is that it had decided to acquire S. No. 540/2 because the said land is an agricultural and only a farm-house was constructed thereon but this statement again is not correct because the Government record itself shows that a pacca house was 'built thereon and the said land was situated in a developed area. Thus the action of the Government in acquiring the said survey number is contrary to the declared policy of the Government and in pursuance of which benefit was given to the owner of S. No. 539. It is evident, therefore, that in this case the Government has followed the irrational method of pick and choose so far as the petitioner's land S. No. 540/2 is concerned and such an action of the Government is contrary to Article 14 of the Constitution. Furthermore it is also the declared policy of the Government not to acquire lands surrounding the land on which residential constructions are raised either by individuals or the co-operative societies. According to the said policy no land in the area of quarter or half a mile of such area should be acquired. The case of the petitioner is that his survey numbers are situated in such a developed area. The Government admitted that the petitioner's lands are surrounded by several buildings constructed by the Co-operative Housing Societies specified in the objection application filed by the petitioner. The action of the Government of acquisition of S. Nos, 540/1, 540/2 and 540/3 of the petitioner is thus contrary to its declared policy. The Government has obviously followed the method of selection or pick and choose in respect of the petitioner's lands, S. Nos. 540/1, 540/2 and 540/3 and has acted arbitrarily and also contrary to its declared policy. Hence the acquisition oi S. Nos. 540/1, 540/2 and 540/3 is illegal and bad.
6. The result is that the acquisition notifications issued under Sections 4 and 6 of the Land Acquisition Act which are at Annexures 'A' and 'B' respectively are held as illegal and bad so far as S. Nos. 540/1, 540/2 and 540/3 are concerned and the Government or its officers are restrained from taking any action against the petitioner in pursuance of the said notifications. Rule made absolute with costs.
7. Rule made absolute.