Skip to content


The State of Gujarat and anr. Vs. Dashrathlal Fakirbhai Mukhi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal Nos. 1062 and 1063 of 1968
Judge
Reported inAIR1975Guj63; (1975)0GLR137
ActsLand Acquisition Act, 1894 - Sections 4, 5A, 6, 17(4) and 55; Land Acquisition Rules - Rule 2
AppellantThe State of Gujarat and anr.
RespondentDashrathlal Fakirbhai Mukhi and anr.
Appellant Advocate M.B. Shah, Asst. Govt. Pleader in F.A. No. 1062 of 1968 and; V.S. Parikh, Adv. in F.A. No. 1063 of 19
Respondent Advocate M.B. Shah, Asst. Govt. Pleader in F.A. No. 1063 of 1968 and; V.S. Parikh, Adv. in F.A. No. 1062 of 1
Cases ReferredNatverlal Jerambhai v. State of Guiarat
Excerpt:
.....17 (4) - without inquiry under section 5-a notification under section 6 not to be issued by state government - held, notification issued under section 6 struck down as invalid. - - both the sides have filed the appeals because the trial court has decreed suit partly and both the sides feel aggrieved to the extent they have failed. in view of the fact that the notification under section 6 was issued without holding the inquiry under section 5-a of the act, having regard to the fact that the inquiry was dispensed with under section 17(4) of the act, the learned trial judge invalidated the said consequential notification under section 6 as well. it was argued that the collector bad no competence or jurisdiction to hold an inquiry under section 5-a since the time-limit of 30 days..........section 4. this of course would have the effect of invalidating the notification issued by the state government under section 6 for admittedly no inquiry under section 5-a was held by reason of the giving of the direction under section 17, sub-section (4) and without an inquiry under section 5-a, the notification under section 6 could not be issued by the state government. the notification issued by the state government under section 6 corresponding to the first notification under section 4 must. therefore, be struck down as invalid.in view of these two decisions, prima facie there should appear no difficulty in upholding the finding recorded by the learned trial judge which is in conformity with the view expressed by the high court therein. counsel for the appellant plaintiff,.....
Judgment:

Thakkar, J.

1. This judgment will dispose of two cross appeals arising out of the judgment rendered by the learned Civil Judge (Senior Division), Ahmedabad (Rural) at Narol in jurisdiction civil suit No. 52 of 1967 on 30, November 1967. The two appeals are First Appeal No. 1062 of 1968 by the State and the Special Land Acquisition Officer who were original defendants and First Appeal No. 1063 of 1968 by the original plaintiff. Both the sides have filed the appeals because the Trial Court has decreed suit partly and both the sides feel aggrieved to the extent they have failed.

2. The main controversy in the suit centres around the validity of the notification under section 4 of the Land Acquisition Act (hereinafter referred to as 'the Act'), issued b the competent authority for the purpose of acquiring the land belonging to the plaintiff admeasuring 5 acres and 39 Gunthas comprised in S. No. 9 of village Deni Limda situated beyond the limits of the Municipal Corporation of Ahmedabad on December 19, 1957. The urgency clause under Section 17(4) of the Act was applied and inquiry under Section 5-A of the Act was dispensed with. The said notification under section 4 was followed by the consequential notification under section 6 of the Act, which was issued on August 5, 1958. The validity of both these notifications was called into question by the plaintiff in the suit giving rise to the present appeals instituted on September 22, 1961 in the Court of the Civil judge (Senior Division) at Ahmedabad. The acquisition was for a public purpose, namely, slum clearance, housing and roads'. It is rather unfortunate that a dispute concerning lands that were notified for acquisition for a purpose of such urgency has remained unresolved for as many as 12 years till now.

3. The impugned notification under section 4 was challenged on numerous grounds. We will, however, refer to only such grounds as have been pressed upon us in the course of the present appeals. The challenge to the notification is mainly based on the ground that the urgency clause under Section 17(4) of the Act has been wrongly applied notwithstanding the fact that the land in question, in the submission of the plaintiff is neither waste land nor arable land. The Trial Court upheld the contention and came to the conclusion that the impugned notification under section 4 in so far as Red the urgency clause under Section 17(4) of the Act, and dispensed with the inquiry under Section 5-A of the Act, was liable to be struck down. The learned Trial Judge was however of the opinion that the vulnerable portion of section 4 was separable from the impugned notification under section 4 and therefore the notification in its entirety was not liable to be struck down. In this view of the matter he decreed the plaintiff's suit partly and granted a declaration that, that part of the impugned notification under section 4 whereby the urgency clause was applied and the inquiry under Section 5-A was dispensed, was illegal. He, however, sustained the validity of the rest of the notification. In view of the fact that the notification under section 6 was issued without holding the inquiry under Section 5-A of the Act, having regard to the fact that the inquiry was dispensed with under Section 17(4) of the Act, the learned Trial judge invalidated the said consequential notification under section 6 as well. The plaintiff has preferred the present appeal by reason of the fact that the rest of the notification under section 4, barring the clause dispensing with the inquiry under Section 5-A, has been upheld and sustained. In other words, the plaintiff has approached this Court praying that the entire notification under section 4 should be struck down on the premise that the vulnerable portion is not separable from the rest of the notification and that the notification must stand or fall in its entirety. The State on the other hand has filed the cross appeal with the end in view to challenge the finding of the learned Trial judge that the urgency clause was wrongly applied and that the notification under section 4 to the extent that it dispensed with the inquiry under Section 5-A was invalid as also in order to challenge the finding that the notification under section 6 was on that account rendered invalid.

4. We will deal with the appeal preferred by the original plaintiff in the first instance. Counsel for the appellant plaintiff has urged that the Trial Court was in error in holding that the part of the impugned notification under section 4 which was held to be invalid was separable from the valid portion. It was argued that the Collector bad no competence or jurisdiction to hold an inquiry under Section 5-A since the time-limit of 30 days for filing objections had expired long back. The submission in substance was that once the Court came to the conclusion that the urgency clause was wrongly applied and the inquiry under Section 5-A was wrongly dispensed with, the notification in its entirety was liable to be struck down.

5. The proposition that the invalid part of a notification under section 4 to the extent that the urgency clause is wrongly applied and to the extent that the inquiry under Section 5-A is wrongly dispensed with, can be severed and a the notification in its entirety need not be struck down, is covered by two Division Bench decisions of this Court. The first is the decision in Hiralal Harjivandas v. State of Gujarat, rendered by J. M. Shelat C. J. as he then was and J. B. Mehta J. which is reported in (1964) 5 Guj LR 924. The conclusion reached by le Division Bench is reflected in paragraph 15 of the judgment which is in the following terms:-

'We are, therefore of the view that the impugned notification falls within the doctrine of sever ability as summarised in Chamarbaugwalla's case and we would therefore, be justified in striking off the' invalid fart of the notification issued under section 4 1) read with Section 17(4) and also the notification under section 6. But we would not be justified in striking off the rest of the notification under section 4(1) which, in our view, is valid and enforceable. Order accordingly. We further direct that the Officer appointed by the Government will institute an enquiry under Section 5-A and hear the objections of the petitioners, if any, in accordance with the Provisions of that section after giving reasonable time to the petitioners in writing for raising their objections to the acquisition. Since the petitioners have substantially succeeded in this petition, the respondents will Due to the petitioners the costs of this Petition.'

This decision was followed by another Division Bench of this High Court in a group of Special Civil APPlns. Nos. 460, 635, 663 and 572 of 1962 decided on 9/10tb August 1965 (Guj). P. N. Bhagwati, J. as he then was speaking for the Court dealt with -this question in the following words:-

'Now it is clear on a true construction of Section 17, sub-section (4) that the Government can give a direction dispensing with the inquiry under S. 5-A only if it forms an opinion that there is urgency and that the land Proposed to be acquired is waste or arable land. The opinion which the Government has to form as a pre-requisite to the exercise of the power to give a direction under Section 17, sub-section (4) must relate to both to the ureic as well as to the nature and condition of the land. Both these matters are left to the opinion of the Government and are matters which are required to be subjectively determined by the Government. If the Government forms the necessary opinion in regard to both these matters, the correctness of the opinion cannot be challenged and the sufficiencey of the reasons on which the opinion is based cannot be questioned and the direction cannot be assailed. If, however, the Government has formed no opinion at all on either of these two matters or the opinion formed is based on reasons which are not relevant to the declaration of the objective fact regarding which the opinion is formed, in either of these two cases the direction issued can be successfully challenged as not being in accordance with law Navnitlal v. State of Bombav (1960) 62 Bom. LR 622 = (AIR 1961 Bom 89). This is the test which must be applied to determine the Validity of the direction issued, by the Government under Section 17, sub-section (4) and if this test is applied. it is clear that in, the present case the Government did not apply its mind and formed an opinion in regard to the Objective fact whether the lands in question were waste or arable lands before issuer direction under Section 17, sub-section (4) in the first notification under section 4. The only matter to which the Government applied its mind was the urgency of the requirement and the Government Proceeded on the footing as if that was the only matter in regard to which it Was necessary to form an opinion before it could act under Section 17, sub-section (4). The direction even under Section 17. sub-section (4) obviously cannot therefore, be sustained. This view which we are taking is completely in accord with the declaration of the Bombay high Court in Navnitlal's case (Supra) where in regard to a direction given in the same terms a Division Bench of the Bombay High Court held that the direction was invalid since the condition to the exercise of the however to live the direction was not fulfilled. We must therefore, followings that decision hold that the direction issued in the present case must be set aside; but the question is: does it have the effect of vitiating the whole of the first notification under section 4. The answer is clearily in the negative. The Power of the Government to issue a notification under Section_4 and the power of the Government to issue a direction under Section 17. sub-section (4) are two distinct powers and merelv because the exercise of the latter power is invalid, it does not render the exercise of the former power bad and ineffective. It is no doubt true that in Navnitlal's case the Bombay High Court set aside the whole of the notification under section 4, but as pointed out by Shelat, C. J. in (1964) 5 Gui LR 924 severability of the direction under Section 17. sub-section (4) from the rest of the notification under section 4 was not raised on, behalf of the State before the Bombay High Court in Navnitlal's case and the decision in Navnitlal's case, cannot, therefore be regarded as an authority for the Proposition that where the direction is invalid, the whole of the notification under section 4 must be set aside. This Court in Hiralal's case (Supra) held that the direction under Section 17, sub-section (4) was severable from the rest of the notification under section 4 and therefore even if the direction under Section (4) was invalid the rest of the notification remained intact and could not be struck down. We cannot, therefore accede to the argument of the petitioners that the whole of the notification under section 4 should be declared invalid. We merely strike down the direction under section 17, sub-section (4) contained in the first notification under section 4. This of course would have the effect of invalidating the notification issued by the State Government under section 6 for admittedly no inquiry under Section 5-A was held by reason of the giving of the direction under section 17, sub-section (4) and without an inquiry under Section 5-A, the notification under section 6 could not be issued by the State Government. The notification issued by the State Government under section 6 corresponding to the first notification under section 4 must. therefore, be struck down as invalid.

In view of these two decisions, prima facie there should appear no difficulty in upholding the finding recorded by the learned trial Judge which is in conformity with the view expressed by the High Court therein. Counsel for the appellant plaintiff, However, argued that those two decisions were rendered Per incuriam and that he was fortified m him submission by a decision of another Division Bench of this High Court. Reliance in this connection was placed on Natverlal Jerambhai v. State of Guiarat, 12 Gui M 146=(AIR 1971 GO 264). Support is sought from the following passage in Natwarlal's case:-

'The period within which the objections are to be filed is an essential requirements and it is on1v them otherwise which are filed within the period provided in the section that can be consider. The consideration of the objection filed within, the statutory time is a condition Precedent to exercise of power under Section 5-A of 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-A of 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 on1y those objections which are filed within the Period of 30 days as Provided in Section 5-A of the Act. The said requirement is also a condition precedent to the exercise of power by the appropriate Government under S. 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 her incursion as the Collector's; position while exercising powers under Section 5-A of the Act was not noticed by the Court or was not brought to the notice of the Court, and therefore cannot have the force of bind in a authority. The notification under Section 1(1) of the Act contained a direction for dispensing with the in duty under Section 5-A of the Act, Admittedly Section 5-A of the Act gives to the person affected a right to file objections within 30 days from the date of publication of the notification under section 4 of the Act There is no dispute that the said statutory Period has expired in the recent cases. It is to, be noted that in these cases the notifications are required to be asked, because the Government has failed to comply with the provisions of S. 17(1) and K) of the Act. The notifications are not required to be quashed for any fault of the petitioners.Under the law 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 derived of the statutorv right of receiving compensation at the price Prevalent on the date due to the fault of the Government in exercising powers under section 17 (1) and (4) of the Act.'With due deference to the learned Judges we are constrained to say that the afore said observations made by them are unjustified and unwarranted. They were, saying so with respect labouring under a conception in assuming that the decision in Hiralal's case (supra) was rendered per incuriam, by reason of a material aspect being overlooked. We are constrained to hold that the decision rendered in Natverlal's case itself is rendered and is not binding for the reasons which will become manifest in a moment The criticism that the decision in Hiralal's case and in Ishverlal's case is rendered per incuriam is erected on the premise that the collector has no competence or jurisdiction to hear the objection lodged by a Person whose land is placed under acquisition once the statutory time-limit of 30 days has expired With aspect, to the learned Judges this premise as been wrongly assumed There was and there still is a rule in existence framed by the State Government under Section 55 of the Act which empowers the Collector to extend the time-limit for filing the objection. Relevant Rules and 2 framed by the then State of Bombay under notification Not. 9173. R. D. dated October 4, 1926 may be quoted in this connection: 'In exercise of the Powers conferred by Section 55 of the Land Acquisition Act, 1894 (1 of 1894) hereinafter referred to as the Act, the Governor-in- Council is Pleased to, make the following rules for the guidance of officers in dealing with objections lodged tinder Section 5-A of the Act:-

1. Whenever any notification under section 4 of the Act has been Published but the Provisions of section 17 have not been applied and the Collector has under the Provisions of section 4(1) issued notices to the parties interested, and or before the last day fixed by the Collector in those notices in this behalf any objections is loaded under Section 5-A(21), firstly the Collector shall record the objection in his Proceedings. Secondly the Collector, shall consider whether the objection is admissible according to these rules

2. To be admissible (a) an objection must be presented in writing by a party interested in the notified land and must be Presented within thirty days after the date of publication of the notification under section 4 or within such period as mad be fixed bevy the Collector: (b) it must allege some specific objections, such as these:

(i) the notified Purpose is not genuinely or Properly a Public Purpose;

(ii) the land notified is not suitable for the Purpose for which it is notified:

(iii) the land is not so well suited as other land.

(iv) the area proposed is excessive:

(v) the objector's, land has-, been selected maliciously or vexatiously:

(vi) the acquisition will destroy or impair the amenity, of historical or artistic monuments and places of public resort; will take away important public rights of way or other convenience or will desecrate religious buildings, graveyards and the like.'

It is abundantly clear on examination of Rule 2 that the time-limit of 30 days, contemplated by Section 5-A for Presentation of the objections can be extended by the Collector. We have no doubt that if these rules had been brought to the notice of the learned Judges who decided Natverlal's case the view would not have been taken by them that the Collector has no legal competence to entertain any Objections after the expiry of the dead line of 30 days envisaged by Section 5-A. The statutory rules in terms provide for such an eventuality. So also the attention of the Court was not called to the circumstance that the Provision enabling a party whose lands are Placed under ac-question to lodge objections is designed for the benefit of such a Party and that the essence of the matter is that an opportunity is afforded to them before a decision is taken, and before notification under section 6 is issued. The essence of the matter is giving of such opportunity not giving it within a particular number of days. There is no, conceivable virtue or me r1t in affording a hearing 'within' thirty days. It is not as if the period of thirty days is of mystical significance and is surrounded by some magic halo. No Principle or Policy underlies the selection of the Period. Some time limit has to be provided for the sake of convenience and that is why the tenure of 30 days was hit upon. There is no rationale underlying the selection of this particular period. It is not as if the success or failure of the objections or the validity of the decision on this question turns on whether or not the objections are lodged within these 30 fateful days. We do not detect any 'logos' or 'ethos' in investing 'now-or-never' significance to this period. The Party whose lands are Placed under acquisition it is true, may not have an unrestricted right to lodge objections beyond the time-limit of 30 days embodied in Section 5-A. But that time-limit operates as a limitation on the right of the party and not as a limitation on the Power of the Collector to hear the objections. Surely, the Party whose lands are under acquisition cannot question the Power of the Collector to hear the objections on any conceivable rational ground notwithstanding the fact that they have not lodged any such objections? Surely a Party cannot be reasonably expected to object to his being dealt with fairly and his being afforded. an opportunity to show cause against the proposed acquisition notwithstanding the expiry of the dead line for filing objections? Even if the rules had not provided for extension of the time-limit, under no principle of law could it have been said that the Collector acted in violation of the principles of fair-play in affording him such an opportunity. All that the Collector does by extending the time-limit of 30, days is to pay homage to the principles of natural justice and no more. He does a good turn to the landowner not an evil act. Even if the rules are silent, the Courts usually read into the relevant provisions the Principles of fair-play and, natural justice and insist on compliance with such principles notwithstanding the fact that there is no positive command by the Legislature. Is it' not therefore futile (it certainly is) to canvass that the Collector has no legal jurisdiction or competence to hear the Person whose land is proposed to be acquired namely because the time limit for lodging such objections has expired? Besides, such a situation has arisen (it cannot be ignored) in the contention the fact that by very nature of things, a Court of law takes some time in deciding matters. The time occupied in pursuing a legal Proceedings in a Court of law can scarcely be used as an alibi by the Court itself in order to shut the door for making amends. In any view of the matter, therefore, it cannot be said that the decision rendered by the High Court in Hiralal's case (Supra) and Ishverlal's case (Supra) is no longer good law having regard to the doctrine of per incuriam. In fact the decision rendered by subsequently in Natverlal's case must be said to be Per incuriam. In our opinion, the learned trial Judge was perfectly Justified in holding that that Part of the impugned notification under section 4 which applied the urgency clause under Section 17(4) and dispensed with the statutory inquiry under Section 5-A was Parable and that the entire notification cannot be struck down. In taking the view to the aforesaid effect, the learned trial Judge has merely followed the law laid down by the High Court in Hiralal's case and Ishverlal's case which in our opinion is good law binding to all concerned even today. We therefore do not see any substance in the appeal. The appeal fails and is dismissed. There will be no order regarding costs. The learned Asst. Government Pleader appearing on behalf of the State gives an undertaking that the Collector of Ahmedabad will issue a notice extending time for filing objections and requiring the plaintiff to lodge his objections with-in 30 days of the receipt of the said notice, and that thereafter the Collector will Proceed to decide the, question in exercise of Powers under Section 5-A in accordance with law. It must be clarified that it will be open to the Collector to proceed to issue a fresh notification under section 6 in case he comes to the conclusion that there is no merit in the objections. The learned Assistant Government Pleader gives an undertaking that such notice will be issued within 60 days of the signing of the judgment.

6. So far as the cross-appeal filed by the State (First Appeal No. f062 of 1968) is concerned, the learned Assistant Government Pleader has vehemently argued that the learned trial Judge was in error in holding that the urgency clause was wrongly applied and that the land in question was not arable land. He took us through the evidence and brought to our notice the relevant circumstances. It was however not Possible for him to persuade us to accede to his arguments on account of two insurmountable difficulties in his way. The first difficulty was that the notification under section 4 itself does not record the satisfaction that the land in question is arable land. It is no doubt true that as held in Hiralal's case, in such circumstances, it is open to the State to show that notwithstanding the failure to make such statement, the competent authority had applied its mind to the relevant aspect and had reached the satisfaction to the effect that the land in question was arable land. But the State has not adduced any evidence whatsoever in the trial Court. That is the first difficulty. The second difficulty arises on account of the circumstance that the every notification under challenge, in so far as it affects the adjoining lands comprised in S. Nos. 14, 15 and 384 has been struck down on this very ground (See the decision in Special Civil APPlns. Nos. 460, 635, 663 and 572 of 1962 rendered on 9th/lOth August, 1965 (Guj)). It is no doubt true that the said notification affects the adjoining lands covered by the same notification and that the impugned notification cannot be struck down merely on the ground that a Portion of the very notification has been struck down. But then the reasoning which prevailed with the High Court will equals applying this case having regard to the fact that the State has not adduced any evidence at the trial. Under the circumstances we are of the opinion that the learned trial Judge was justified in upholding the contention of the plaintiff in this behalf as also in striking down the impugned notification under section 6 which was issued as a consequence there of. The judgment of the learned trial Judge under the circumstances cannot be successfully assailed. The appeal fails and is dismissed. There will be no order regarding costs.

7. Appeal and cross-appeal both dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //