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Mohamadsarif Hakimji Chippa and anr. Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 246 of 1962
Judge
Reported inAIR1967Guj269; (1967)8GLR418
ActsLand Acquisition Act, 1894 - Sections 4, 6, 9(3), 10, 11, 12 and 18; Code of Civil Procedure (CPC), 1908 - Sections 100 and 101; Constitution of India - Article 226
AppellantMohamadsarif Hakimji Chippa and anr.
RespondentState of Gujarat and anr.
Appellant Advocate S.G. Rebello, Adv.
Respondent Advocate K.H. Kaji, Acting Adv. General and; K.L. Talsania, Adll. Govt. Pleader
Excerpt:
(i) property - acquisition - section 4, 6, 9 (3), 10, 11 and 12 of land acquisition act, 1894 - land acquisition officer passed award in respect of acquisition of appellant land without serving notice - whether award invalid because notice under section 9 (3) not served on petitioners - held, award invalid as notice under section 9 (3) mandatory. (ii) award - section 12 of land acquisition act, 1894 - whether land acquisition officer had no jurisdiction to pass second award after first award was invalid - under section 12 law does not contemplate of making more than one award. - - 1 the state purported to acquire the land, did not continue to be in existence and therefore the award is bad'.we shall deal with these submissions seriatim. it settled law that notice under sub-section (3).....vakil, j.(1) this writ petition arises out of land acquisition proceedings, acquiring lands and structures thereon, falling with in the line of alignment for the municipal corporation of ahmedabad in jamalpur area of ahmedabad city. the sixteen petitioners claim to be the tenants of structures, consisting of small shops and rooms. they are petty traders and artisans. their case, as put forward in the petition, is that for the first time they came to know about the fact that the premises were being acquired under the land acquisition act when they received notices dated the 3rd of june, 1961 from the taluka magistrate under section 47 of the land acquisition act (herein after called the act), calling upon them to surrender possession on the 30th of june 1961. it is alleged inter alia that.....
Judgment:

Vakil, J.

(1) This writ petition arises out of land acquisition proceedings, acquiring lands and structures thereon, falling with in the line of alignment for the Municipal Corporation of Ahmedabad in Jamalpur area of Ahmedabad City. The sixteen petitioners claim to be the tenants of structures, consisting of small shops and rooms. They are petty traders and artisans. Their case, as put forward in the petition, is that for the first time they came to know about the fact that the premises were being acquired under the Land Acquisition Act when they received notices dated the 3rd of June, 1961 from the taluka Magistrate under Section 47 of the Land Acquisition Act (herein after called the Act), calling upon them to surrender possession on the 30th of June 1961. It is alleged inter alia that they then came to know that without publishing the necessary notifications under Sections 4 and 6 of the At in the locality or affixing them on the premises, the Land Acquisition Officer had passed and filed an award in respect of these premises on the 3rd of April 1961. No notices were served on them under Section 9 or section 10 before making the said award, though they were the occupiers and as such, persons interested in the land and premises, which were being acquired . They therefore, approached the Collector . Thereafter the Land Acquisition Officer sent them notices under Sections 9 and 10 of the Act on the 3rd of July 1961. The petitioners, except petitioner No.16 appeared before the Land Acquisition Officer and filed their objections and made their claims. A second award dated the 25th of September 1961 was then passed by the Land Acquisition Officer with out property hearing them or holding any proper enquiry. Thereafter on the 3rd of October 1961, respondents No. 2 served notices on the petitioners except petitioner No. 16, that their premises were acquired under the second award dated the 25th of September 1961 and they should surrender possession on the 5th of December 1961. On the 4th October 1961, petitioner No.16 was served with a notice informing that the premises mentioned therein were acquired under the first award dated the 3rd of April 1961 and should give possession on the 5th of December 1961. Thereafter, notices were served on the petitioners on the 19th of January 1962 by the Taluka Magistrate under Section 47 of the Act to enforce the award by calling upon the petitioners to vacate the premises on or before the 20th of March 1962, failing which they would be forcibly evicted and prosecuted. On the 17th of March 1962, this petition was filed. The State Government s joined as respondents No. 1 and the special Land Acquisition officer of the Corporation s respondents No.2.

(2) Mr. S. G. Rebello, the learned Advocate for the petitioners has raised the following three contentions only before us and has not pressed the others raised in the petition:

'(1) the first award dated the 3rd, of April 1961 is invalid because notice under Section 9(3) of the Act was not served on the petitioners :

(2) the Land Acquisition Officer had no jurisdiction to pass his supplemental award or the second award. Therefore, the supplemental award dated the 25th of September 1961 is invalid; and

(3) the public purpose for which the respondents No. 1 the State purported to acquire the land, did not continue to be in existence and therefore the award is bad'.

We shall deal with these submissions seriatim.

(3) It was submitted that the petitioners are tenants or occupants of the premises acquired and there is no serious dispute about it. It settled law that notice under sub-section (3) of Section 9 is mandatory to be given to the occupants and failure to give notice would render the award not binding on them. No notice was served admittedly on the present petitioners by the Special Land Acquisition Officer. The first award dated 3rd of April 1961, therefore is invalid in law. Now, in order to support this submission Mr. Rebello relied upon the decision in Laxmanrao Kristrao Jahagirdar v Provincial Govt of Bombay : AIR1950Bom334 , wherein it has been laid down that under Section 9(3) of the Land Acquisition Act , 1894, it is only in the case of an occupier that the failure to serve a notice by itself may furnish him with a cause of action by which he could challenge the award. In the case of persons other than the occupier who are interested in the land, the mere omission or failure to serve a notice is not sufficient in itself to entitle them to challenge the award but they must establish that the failure to give them such notice was a willful or perverse or fraudulent failure on the part of the Collector . there can be no quarrel with the principle laid down that under sub-section (3) of Section 9, the giving of notice by the Collector to the occupant is mandatory and it is a condition precedent to be fulfilled to make the award binding on them. It is an admitted position in the instant case that no such notice was given to the present petitioners who were tenants of the various premises to be acquired. The result would be that, if the document dated 3rd April 1961 constituted by itself the award, that award and all the proceedings that followed upto the giving of notices to the petitioners under Section 9 are not binding in law on them, It is also clear that so far as the proceedings that preceded the requirements of giving of such notice under Section 9 would not be touched and , therefore, the publication of the notifications under Section 6 of the Land Acquisition Act would stand as valid acts on the part of the Collector

(4) That takes us to second contention raised on behalf of the petitioners . the submission is that in an acquisition proceedings, there can be only one award as regards all the points to be decided by the Acquisition Officer and in respect of all the parties interested. Having regard to all the relevant sections of the Land Acquisition Act , the Collector has no jurisdiction to make two awards in the respect of the same land. It was argued that in the present case what the Special Land Acquisition officer had done was to decide matters concerning the landlords by the first award which was given on the 3rd of April 1961 and none of the matters which concerned the present petitioners , who are tenants, was taken into account while giving that award. The Land Acquisition officer is required to decide mainly three points. He has to decide the true area of the land, the compensation which , in his opinion should be allowed for the land and the apportionment of the said compensation among all the persons known or believed to be interested in the land. Therefore, so far as the first award dated 3rd of April 1961 was concerned, those points which are required in law to be decided once for all were not decided finally in respect of the rights of the landlords and the tenants who are the persons interested in the land to be acquired. It was further pointed out that under Section 12, when such an award is filed in the Collector's office, it becomes final and it settles once for all matters concerned under Section 11 between the Collector and all the persons interested. Therefore , the law would, never contemplate making of more than one award. It is further urged that, is not possible to contemplate more than one award with conclusive effect under Section 12, when such an award is filed in the Collector's office, it becomes final and it settles once for all matters concerned under Section 11 between the collector and all the persons interested. Therefore, the law would never contemplate making of more than one award with conclusive effect under Section 12 on one and the same point in respect of the same land and, therefore, in the present case when two awards have been made by the Special Land Acquisition Officer, both the awards are illegal. It was submitted that the first award is illegal in any case qua the present petitioners and the second award is illegal because it does not contain the decision in itself of all matters which are required to be considered and decided by the Land Acquisition Officer under Section 11 in respect of the land and all the persons interested. In the second award neither the matters concerning the landlords nor the total area of land or its value are referred to or considered.

(5) In order to support his contention, Mr. Rebello relied upon the decision in Pras Narain v Collector of Agra . The facts of the said case may be examined in order to understand the actual decision arrived at the their Lordships. The appeal before the Privy Council was filed against the Judgment of the High Court of Judicature at Allahabad relating to compensation payable to the Appellant by virtue of the Land Acquisition Act . The Land Acquisition Officer at Agra had issued a general notice under the Act for the acquisition of a block of land in the city for the purpose of constructing a new police station. That one compact block measured over one acre and it also included land and houses belonging to the Appellant. There were eighteen claimants to the amount of compensation in respect of the entire block of land, including the Appellant and one Dan Dayal. The Appellant 's claim was for Rs. 3,34,589/- which was made up of Rs. 2,46,780/- for the land at the rate of Rs. 60 per square yard, and an amount of Rs. 87,818/- for the buildings. The Land Acquisition Officer considered the cases of all the eighteen claimants, recorded evidence and the hearing ended on the 23rd of December 1923. As regards sixteen claimants other than the appellant and Dan Dayal, an agreement was arrived at in respect of the amount of compensation payable to each for their respective interest. But, for the purposes of acquiring title under the act, the Land Acquisition Officer drew up a formal award on the 31st of December 1923 as regards the compensation payable to those sixteen applicants under the agreement filed. Then, he proceeded to deal with the claims of the appellant and Dan Dayal and made his ward in which it was mentioned that agreement had since the hearing been reached with the other claimants, that an award statement regarding them had been drawn up and the amounts paid, and that the present award related to the cases of the appellant and Dan Dayal only. Under the second award, the officer divided the appellant's land into three zones in order to arrive at the compensation payable to the appellant. As regards a part of the frontage area, he fixed the rate of Rs. 13 per square yard. Another part of the land on which structures were constructed was valued at Rs. 6 per square yard and the remaining part of the land which consisted of non-frontage land, he fixed the value at Rs. 8/- per square yard. But as regards the disputed piece of land which admeasure about 495 square yards, the sum to be paid under the award to the appellant was reduced from Rs. 8/- per square yard to Rs. 6/- per square yard owing to the interest therein of some permanent tenure-holders. The appellant and Dan Dayal, being dissatisfied with the award, claimed a reference to be made under Section 18 and accordingly a reference was made to the Court. The Court confirmed the finding in the award of the Officer as regards the compensation to be given for the buildings. As regards land, he raised the amount to Rs. 20/- per square yard for the whole area, except the concerned 495, sq.yds. As regards those 495 square yards, the Court only allowed Rs. 220/ as the capitalised value of the land on the basis that he was only entitled to receive rent as regards this portion of land from the permanent tenure-holders. In addition, a further sum of Rs. 1,200 was allowed in respect of a claim for loss of rents. From this decision, the appellant appealed to the High Court of Allahabad and claimed that the full amount of compensation claimed by him should have been allowed. The High Court upheld the decision of the District Court fixing the value of the land at the rate of Rs. 20/- per square yard. As regards the concerned 495 square yards, the High Court held that the District Judge, was not justified in assuming that the appellant's rights in the land were only limited to the receipt of rent of Rs. 5 per annum from the permanent tenure holders. In their opinion as the appeal to the District Court only related to the quantum of compensation and not to the apportionment the District Judge ought to have accepted the Land Acquisition Officer's proportion of apportionment of compensation, that is one-fourth to the tenants and three-fourths to the appellant and applying this standard of apportionment to the piece of land admeasuring 495 square yards, the appellant should have been given Rs. 15 per square yard and tenants Rs. 5/- per square yard in respect thereof. In the High Court the appellant had claimed that he was entitled to the whole amount at the rate of Rs. 20/- per square yard less only the sums which, by agreement had been paid to the tenants and accepted by them and not in proportion of Rs. 15/. And Rs. 5/- per square yard, This claim was disallowed by the High Court, Before the Privy Council, it was contended on behalf of the appellant that as the high Court had valued the piece of land admeasuring 495 square yards at Rs. 20/- per square yard the whole amount ought to have been awarded to the appellant, subject only to the payment of the amount that the tenants had agreed to accept that amount being only Rs. 920/- which worked at Rs. 2/- per square yard, and that the appellant was entitled only to the three quarters of the total amount of Rs. 9,900/- awarded for that particular piece of land. After considering the point, their Lordships came to the conclusion that the said contention could not be accepted and, while deciding this point, they have observed that it appeared to them that such a contention was made possible only because the provisions of the Act were not strictly followed by the officer concerned. After making these observations, their Lordships gave the reasons fro coming to this conclusion. Analysing Section 11 it has been observed that the duty of the Collector under section 11 is to make an award in regard to three matters (1) the area of the land included in the ward, (2) the total compensation to be allowed for that land, and (3) the apportionment of that compensation among all persons interested in that land. They have further observed as follows:-

' The Act does not appear to contemplate that where more than one person is interested in parcel of land there should be more than one award relating thereto. Their Lordships do not by this mean that the whole of the land at any one time to be acquired under the Act must necessarily be dealt with in one award; but only that any one piece of land (forming part of the whole) in which more than one person has an interest for which he can claim compensation ought not to be made the subject of more than one award. Each award should contain within its four concerns the fixing of the value of the land with which it deals and the apportionment of that value between the various persons interested in that land'.

(6) This is not all. There is a further observation made by their Lordships which is of importance for having a complete idea as regards what was laid down in that decision b the privy Council. It has been observed that in the case on their hand, the difficulty had arisen from the fact that the officer, had dealt with the land by two document, and so far as the disputed piece of land of 495 square yards was concerned, the particular parcel of land was dealt with in both the documents. However, their Lordships thought that the two documents must be read together as constituting one award in relation to that parcel of land by which the officer awards compensation to be allowed for that land at figure of Rs. 8 per square yard and awarded apportionment of that compensation in the proportion fixed by the Land Acquisition Officer. The ratio of this decision therefore, appears to us to be that, having regard to the scheme and the relevant provisions of the Land Acquisition Act, in respect of a parcel of land only one award is contemplated with reference to matters mentioned in Section 11 of the Act. But, the same time, it does not mean that the award must necessarily be contained in one document. That one award could be constituted by two documents provided it amounts to one decision.

(7) The learned acting Advocate General appearing for the two respondents before us first made an effort to submit that, on a proper reading of the provisions of the Act, there is no prohibition in regard to making of two awards by the Land Acquisition officer, and the Privy Council ruling does not lay down rule of law or decide that the officer concerned has no jurisdiction to make more than one award. He argued that the Privy Council has not said specifically that the second award, with which they were concerned, was incompetent. We are unable to accept this submission made on behalf of the respondents . In our view, though the Privy Council has not said so in so many words that there is no jurisdiction in the acquiring officer to make more than one award, the discussion and the positive observations to which we have referred lead to no other conclusion than the one mentioned aforesaid .

(7-a) Apart from that, if we look to some of the relevant sections ourselves, it makes it entirely clear that the Legislature could never have contemplated the making of two awards in respect of the three matters referred to in section 11 and the persons interested in the same piece of land. Section 9 of the act requires notice to be given to person interested, which was already dealt with Section 10, empowers the Collector to enforce making the statements s to the names of the respective parties interested in the land with which he is concerned in the acquisition proceedings, and it casts a duty on him to acquaint himself as regards the persons interested in such land. Not only that, but the persons who re given such notice are also bound to disclose facts required to be given by such notice. The idea is obvious that, before the award is made, information as regards who are the persons interested and the nature of their interest in the land should be tried to be gathered by the acquiring officer in order to settle the matters once for all as regards their interest and the nature of such interest. Then we come to the most important section which has a bearing on the matter under consideration. This section casts a duty on the Collector or the Land Acquisition Officer to make inquiry. He has to enquire into the objections, if filed by any person interested, in answer to the notice that may be given under Section 9 as regards the measurement, the value of the land and the respective interest of the other persons claiming compensation. After making this enquiry, the officer concerned, is required to give his award as regards (1) the true area of the land (2) the compensation which, in his opinion, should be allowed for the land, and (3) the apportionment of the said compensation among all persons known or believed to be interested in the land or of whom or of whose claim he has information, whether or not they have respectively appeared before him. Under Section 12, when an award is made, it shall be filed in the Collector's office and on such filling of the award, it becomes final an conclusive evidence as between the Collector and the persons interested as regards the true area, the value of the land and the apportionment of the compensation among the persons interested. Reading all these sections together, the legislative intent becomes clear that in respect of the land under acquisition all matters referred to in section 11 between all persons interested must be decided by one award. To construe them otherwise may lead to anomaly. If the Collector were to have authority to decide the same matters between the same parties more than once, it may happen that he may come to one decision in respect. Of some piece of land acquired, on all matters concerned under Section 11 between all the parties interested, may file the award and the award under Section 12 will assume finality. The Collector may thereafter think that his conclusion was not correct in respect of either of the matters mentioned in section 11. He may reagitate the same matter, may make changes in his conclusions, say as regards the true area of the land or the compensation to be given in respect of the land, makes a second award, files it so that award will also have finality. Such an incongruous situation could not have been intended by the legislature. In our judgment therefore, having regard to the scheme of the act and particularly the relevant sections, to which we have referred, the provisions of the act contemplate making of only one award by the Collector which on being filed will have the conclusive effect as provided under Section 12. Therefore we are not accepting the contention raised by the learned Acting Advocate General that it is open to the Collector to make more than on award in respect of the same land in which more than one person is interested an there can be more than one award relating thereto.

(7-b) But the question is do the provisions of law referred to herein above also contemplate that the award must necessarily be contained in one document or writing and that in every case where the Collector has given his award by two orders in writing, instead of one, would make such an award invalid. The learned Acting Advocate General in the alternative, submitted that the award may be contained in more than one document provided the two constitute one decision (award) of the Collector . In our view, the concept of one award, does not necessarily imply that it should be contained in a single document. It would not invariably and in all cases rule out the possibility of there being more than one document constituting 'one award'. The expression 'award' in our opinion, means the 'decision' to be arrived at by the Collector on the matters mentioned in Section 11. The said decision of the Collector under given exceptional circumstances may be contained in more than one document. So long as one are ore documents constitute one compendious decision of the Land Acquisition Officer or the Collector, the mere fact that it is contained in more than one document would not amount to two or more separate awards. In this view of ours, we receive support from the Privy Council decision in Prag Narain v Collector of Agra (supra). When therefore the Land Acquisition Officer ( Collector ) deals with the land by two documents, it has to be determined whether these are independent awards consisting of independent decisions in respect of maters to be considered by the acquiring officer or whether, the two together only constitute one whole decision of the Collector in respect of the land concerned and , in respect of all maters required to be considered under Section 11 concerning all the persons interested therein.

(8) The question, therefore, that arises in the present case is a mixed question of law and fact as to whether the document dated the 3rd of April 1961, which is alleged to be the first award, by the petitioners , and the document dated the 25th September 1961 alleged to be the second award by the petitioners, are in reality two different awards or whether the two documents only contain one decision of the Land Acquisition officer in respect of the land concerned. Unfortunately, neither side had produced either of these two documents on the record. Therefore we first tried to arrive at our decision from the affidavits on record. In the petition, the allegation is to the effect, as we have already indicated, that these two documents are two separate awards which the Land Acquisition officer had no jurisdiction to pass, and the second award, having been made without any jurisdiction is void. Turning to the return which is filed by the Special Land Acquisition Act acquisition Officer, we find that at several places in that affidavit it has mentioned that the said second documents of the 25th of September 1961 was only a supplementary award. In paragraph 16 of the said affidavit, there is the following statement:-

' I submit that the original award is merely supplemented and is not amended or cancelled'.

(9) But when we go to paragraph 21. We find the following assertion:-

' I say that the claimants as well as the claims referred to in the said awards are quite independent and one award has nothing to do with the other one'.

(10) Now, this is likely to give an impression that the two documents, which are alleged to be two separate awards by the petitioners , were as a matter of fact, independent separate awards in respect of the same land and the same persons interested in the land and in respect of matters to be considered by the officer under Section 11. Having regard to the whole tenor of the affidavit filed on behalf of the respondents we felt that it would be just and proper to have a look into these two documents ourselves as there was a probability of the said statement in paragraph 21 having been made inadvertently or without keeping in mind the exact connotation in law of the expression 'award'. After the relevant parts of these documents were brought on the record, we have heard the learned Advocate for the petitioners and the learned Acting Advocate General. It becomes clear reading the two documents together, that so far as the first pronouncement by the officer was concerned, it only related to the consideration of the claims made by the owners in respect of the concerned land, and the present petitioners did not figure there; probably because as they were not given by the Land Acquisition Officer to these sixteen petitioners, under Sections 9 and 10 and full opportunities were given to them of being heard and by the second document on the 25th of September 1961, the officer dealt with these claims of the sixteen petitioners. It is important to note that, when they made their claims before the Land Acquisition Officer, they have rested their claims only on the grounds that they were entitled to compensation as tenants and the amount of compensation must be fixed keeping mind the facts that they will suffer loss in their business when they are ousted from their present premises, that they will have to incur costs of shifting and that looking to the times, they will have to pay much more to occupy similar premises. These petitioners had not raised any objection as regards the total amount of compensation to be awarded. They had also not challenged the decision reached by the Land Acquisition Officer as regards the value of the land contained in the first document of the 3rd April 1961 nor had they challenged even the apportionment. It is clear, on reading these two documents together that the second document ( in which reference has been made to the document dated 3-4-1961) considered the claims of these tenants on the grounds on which they were based. The tenants had never challenged any of the findings made and contained in the first document. Therefore, there was no occasion even for the acquiring officer to consider the question as regards any adverse effect on the interested persons whose claims he had already considered before he had written out the first document. These two documents are not coming into any conflict on any of the matters to be decided by the Collector or as regards the interest of persons interested. They are two independent decisions of the Land Acquisition Officer in respect of the same piece of land with reference to the matters to be decided under Section 11 as between the persons interested. Therefore, the result is that, these two documents, as a matter of fact, only constitute one decision and award of the Land Acquisition Officer and there is no invalidity attaching to the second document dated the 25th of September, 1961, as contended by the petitioners. Therefore, the second submission of the petitioners must fail.

(11) We would, however like to add that dealing with the same piece of land in respect of matters referred to in Section 11 of the Act, by more than one document, cannot be encouraged and may only be justified as an exception and not as a rule. Law expects the making of only one award and if the provisions of the Act are followed strictly and they should be, there can hardly be any scope or justification for there being more than one document constituting the `award'. Court cannot look with favour any laxity in following the provisions of law and more often than not the act of dealing with the land by more than one document is likely to be struck down as being illegal.

(12) On behalf of the respondents, it was further submitted that in any event it cannot be said that any injustice has been caused to the petitioners because of the action of the Land Acquisition Officer in making his award in two parts, particularly because when the defect was found to exist, because of the notices having not been given to the present petitioners under Section 9, that defect was remedied to its fullest extent as far as the petitioners are concerned by giving them notices, permitting them to object to the acquisition and also put forward their claims as regards compensation. After a full hearing, the decision as regards their claims also was arrived at by the Land Acquisition Officer. If they were dissatisfied with the compensation given to them, they had a full remedy by requesting a reference under Section 18 to the Court. Mr. Rebello urged that these parties had appeared before the Land Acquisition Officer and had made their claims without prejudice to their rights. That may be so, but the question that arises for us to consider in this writ petition is whether, in the light of the facts that we have discussed and the position of law, this Court should exercise its extraordinary jurisdiction to give a writ to the petitioners as asked for. We are satisfied that no such circumstances exist nor do any provisions of law exist which would induce us to issue any such writ on the basis of the second submission made on behalf of the petitioners.

(13) One more submission however on behalf of the petitioners remains to be considered, and that is that, the public purpose, for which the acquisition purported to have been made, was not in existence. The argument was that this acquisition of the land concerned was notified for the `public purpose' of road widening for them Borough Municipality of Ahmedabad, with reference to the roadline prescribed by the then municipality. On the coming into existence of the Corporation under Section 210 of the Bombay Provincial Municipal Corporations Act (59 of 1949) the street line prescribed by the Municipality was deemed to be the street line for the purposes of the Corporations Act. But under the authority given by the said section, the Corporation had subsequently substituted the street line and therefore the original public purpose did not continue to exist on the date of the award and therefore the award is invalid. The learned Acting Advocate General contended that this ground is not available to the petitioners at all in this petition, because they are not in a position to show, nor can they contend that the award proceedings are illegal right from their inception. They are not in a position to challenge in this petition the notifications under Section 4 and 6. Therefore, the question bearing on public purpose, whether it existed at the date when these notifications were published or whether the same purpose continued to exist till the date of the award, cannot be raised by the petitioners in this petition. We see the force of this argument on behalf of the respondents and hold that it is not open to the petitioners to raise this contention. However, even if we were to examine this contention on its merits, we do not find any substance in it. Mr. Rebello referred to Section 210 of the Bombay Provincial Municipal Corporations Act and particularly the proviso to Clause (a) of sub-section (1) of the said section, which is as follows:-

'210. (1) The Commissioner may - (a) prescribe a line on one or both sides of any public street:

Provided that every regular line of a public street operative under any law for the time being in force in any part of the city on the day immediately preceding the appointed day shall be deemed to be a street line for the purposes of this Act until a street line is prescribed by the Commissioner under this clause.

(14) The effect of this proviso is that the regular line of a public street operative under the Borough Municipal Act, before the Municipality of the City of Ahmedabad was raised to the status of a Corporation, would remain in force and shall be deemed to be the street line for the purposes of the Corporations Act also, until a Street line is prescribed by the Commissioner under the powers vested under Section 210. But Mr. Rebello argued that under Clause (b) of sub-section (1) the Commissioner was authorised from time to time, subject to the previous approval of the Standing Committee, to prescribe a fresh line in substitution of any line so deemed to exist and the Corporation had made the last change in the street line on the 16th of March 1961. This amounted to substitution of the road line under Clause (b) of the said Section and that has the effect of making the original line, which was prescribed by the Municipality under the Bombay Borough Municipal Act and with reference to which the lands were tried to be acquired, to be extinct. We are not able to accept this reasoning of Mr. Rebello, because, if we have a look at the affidavit filled on behalf of the respondents, it states that there was no substitution of the road line made by the Corporation as contemplated by Clause (b) of sub-section (1) of Section 210, but it was only slightly altered which involved only two survey numbers with which the petitioners are not concerned. It is thus also a disputed question of fact. In any case we are unable to accept the contention of Mr. Rebello that the original road line must be taken to be non-existent and consequently the `public purpose' for which the acquisition was contemplated to have been made did not exist at the date of the award, rendering it invalid. There is neither any proper data placed on the record nor would the position of law and fact permit any such conclusion.

(15) The result, therefore, is that the petition fails. But, having regard to the special circumstances of the case, we pass no order as to costs. Rule discharged.

(16) Petition dismissed.


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