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Mathurbhai Hirjibhai Patel and ors. Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 3 of 1972
Judge
Reported inAIR1973Guj261; (1973)0GLR596
ActsLand Acquisition Act - Sections 3; Gujarat Panchayat Act - Sections 99(2)
AppellantMathurbhai Hirjibhai Patel and ors.
RespondentThe State of Gujarat and ors.
Appellant Advocate V. Panchayat Shah, Adv.
Respondent Advocate G.N. Desai, Government Pleader and; R. Panchayat Bhatt, Adv. for;
Cases ReferredAshok Kumar Gordhabhai v. State of Gujarat.
Excerpt:
property - acquisition - section 3 of land acquisition act and section 99 (2) of gujarat panchayat act - petitioner challenged acquisitions of land for purpose of extension of village site - alleged that land was acquired in order to harass them as they had refused to canvass for sarpanch during election - contention that state government had no jurisdiction to acquire land by issuing notification not justified - contention of political vendetta as alleged by petitioner ruled out as circumstances did not suggest mala fides on part of sarpanch - contention of lack of application of mind baseless as survey indicated that without acquisition compact block of land would not be constituted - contention that land acquired was not for public purpose untenable as entire cost of acquisition was to.....b.k. mehta, j.1. in this petition the petitioners have challenged the acquisition of the different pieces of land bearing different survey numbers measuring about 10 acres situated at village navli in kaira district. for purpose of extension of the village site of the village, navli, of which was established some 600 years ago. the acquisition in question has been made in the following circumstance :--2. as sated above, the village navli was established some 600 years ago. there is a road leading to village june andhariya situated on the west of the village site of the said village navli. that road runs from south to north. there is another road, further to the west of the aforesaid road leading to june andhariya, which is known as navli-umeta road. all the pieces of land except 3.....
Judgment:

B.K. Mehta, J.

1. In this petition the petitioners have challenged the acquisition of the different pieces of land bearing different survey numbers measuring about 10 acres situated at village Navli in Kaira District. for purpose of extension of the village site of the village, Navli, of which was established some 600 years ago. the acquisition in question has been made in the following circumstance :--

2. As sated above, the village Navli was established some 600 years ago. There is a road leading to village June Andhariya situated on the west of the village site of the said village Navli. That road runs from South to North. There is another road, further to the west of the aforesaid road leading to June Andhariya, which is known as Navli-Umeta Road. All the pieces of land except 3 involved in this acquisition are situated between these two roads. The survey numbers which have been sought to be acquired for the purposes of the extension of village site land are 429, 430/, 430/2. 431/1, 522/1, 522/3, 522/5, 520/P/1, 525/P/1, 525/P/2, 527/1, 527/2, 527/3, 525/4, 525/5, 525/6, 647/1, 647/2, 647/3/1, 647/3/2, 647/4, 647/5, 647/7, 646/1. plus 2 646/3/P, 646/P/P, 644/1, 644/2, 645/1 and 645/2. The population of village Navli according to 1971 census was 7000. This village is situated just to the sought of Anand in district Kaira. The Mamlatdar. Anand, by his circular bearing No. LND/W/1617 of May 31, 1965 invited application from the persons who were interest in building sits though the Gram Panchayat of village Navli so that the acquisition proceedings could be initiated. As about 290 applications were received, the Panchayat in its meeting held on 25th June, 1966 resolved that the Mamlatdar, Anand, should be requested for acquisition of 40 acres of land. The Panchayat received these application in June 1966. The Panchayat of village Navli made a deposit of Rs. 13,100/- in the Sub-Treasury of Anand on July 22, 1968 though its Sarpanch. It appears that a proposal was made by the Collector. Kaira on September 20, 1968 for acquisition of the land for purposes of extending the village site of village Navli. It appears that a Notification under Section 4 of the Land Acquisition Act was issued on 8th January, 1971 and after holding inquiry as prescribed under Section 5-A of the said Act a Notification under Section 6 of the Act was issued on 24th September, 1971. The Notification under Section 6 of the land were to be acquired at the expense of the local body, namely, village Panchayat of Navli for the purpose specified in column 4 of the Schedule to the said Notification. The purpose of which acquisition was made, as stated in this column 4, was for extension of village sits of village Navli. The petitioners who are the owners of the aforesaid pieces of land sought to be acquired for the said purpose approached this Court in January 1972, under Art. 226 of the constitution of India for appropriate writs. order and directions. challenging the said acquisition on various grounds. Shortly stated, the case of the petitioners is as under:--

3. According to the petitioners, they were supporters of a candidate contesting election to the Gujarat Legislative Assembly in the year 1966 on the ticket of Swatantra Party. One Ambalal Motibhai Patel was a rival candidate at the said election and he was contesting on the Congress ticket. The Sarpanch of the village Panchayat of village Navli one Patel Ishverbhai Harmanbhai was a close relative of this congress candidate. As the petitioners refused to oblige the said Sarpanch and turned down his request to canvass for the Congress candidate, the said Sarpanch was offended and he was therefore bent upon harassing and the petitioner by maneuvering to acquire these pieces of land. At the said election, the Swatantra candidate was a electioned from that constituency. However, the Congress party won the majority in the State Assembly and as the Sarpanch had political influence in the party. in order to harass the petitioners the said Sarpanch manoeuvred for the acquisition of these pieces of land. It is also the case of the petitioners that other pieces of the land more suitable for purpose of extension of the village site were available. In spire of this availability of the other piece of land. the Sarpanch who was heading Navli Gram Panchayat at the relevant time could manoeuvre with the Government for acquisition of the land of the petitioners. It was also their case that the authorities of the State Government did not apply their mind properly to the facts of the case. inasmuch as the contiguous pieces of land just adjoining to the original village of village Navli were left out. though they were available for the purpose. It was also the grievance of the petitioners that these contiguous pieces of land were intentionally dropped from the acquisition as they belonged to relatives of the aforesaid Sarpanch. The acquisition, according to the petitioner, was not for public purpose and was merely for benefit of a few individuals who were the supporters of the Congress party. The acquisition was in colourable exercise of the power inasmuch as the same was not to be made from the fund belonging to the local authority in reality and in law or from the Government revenue. The petitioners. therefore, contended that the acquisition was in fraud of the power and without jurisdiction and therefore, prayed for appropriated writs. orders and directions.

4. On behalf if respondents Nos. 1 and 2. the Special Land Acquisition Officer Shri A. B. Thakkar, has filed hi affidavit-in-reply denying the various averments made in the petition and explaining why the pieces of land of the petitioners were selected for purposes of extension of the village site of village Navli. On benefit of respondents No. 3. Navli Gram Panchayat the Sarpanch Shri Ishverbhai Harmanbhai Patel has filed his affidavit-in-reply, denying the allegations of the petitioners about the alleged mala fide intention of acquisition of the land in question.

5. At the time of hearing of this petition, the following contention were raised by Miss V. Panchayat. Shah, the learned advocate, appearing on behalf of the petitioners:--

'(1) That under Section 126 of the Bombay Land Revenue Code. It is for the Collector for the Survey Officer acting under the general of special orders of the Government to determine as to what lands are to be included within the site of any village, town or city and to fix and from time to time vary the limits of the same. The state Government has no jurisdiction to acquire the land by issuing notification under the Land Acquisition Act.

(2) The acquisition in question was without jurisdiction and bad in law inasmuch as there were mala fides in fact on the part of the Sarpanch of the Surpanch of Navli Gram Panchayat as the petitioners refused to oblige him by agreeing to canvass for the Congress candidate who was his relative.

(3) The authorities of the State Government had not applied their mind to the facts of the case inasmuch as there was no genuine need for building sites in village Navli, and inasmuch as there was non-application for mind on the part of the authorities. the acquisition was bad in law.

(4) The acquisition was not for a public purpose but was in reality and substance for a few individuals who were the supports of Congress part inasmuch as the cost of the acquisition of land was to be born by those interested persons.

(5) There was in fact on need for acquisition of such a large tract of agricultural land situated at a distance from the original village site land and especially when the contiguous pieces of land available and which had been in fact left out by the Government at the instance of the Surpanch of village Navli'.

6. In our opinion, none of the contentions of Miss Shah has any merit in it. The first contention that it is only the Collector who has power and authority to fix and from time to time vary the limits of village site under Section 126 and the action of the Government for acquisition of the pieces of the land in question of the Petitioner is therefore without jurisdiction is not correct. This very contention had been raised in special Civil Application No. 315 of 1971 (Guj) before us and for the reasons stated in the judgment in the said application the same was rejected. The first contention. Therefore, must fail on the grounds stated in it aforesaid judgment.

7. The second contention of Miss Shah that it has because of political vendetta that there lands were sought to be acquired is not also not borne out by what has been stated in the petition and in the affidavit-in-reply as well as in further affidavits-in-rejoinder. It has been brought in the affidavit-in-reply on behalf of respondents Nos. 2 and 3 that the Mamlatdar invited application from the residents of village Navli in May, 1965 who were interested in building sites though Gram Panchayat. The application were submitted in June. 1966 by as many as 290 persons. As a result of such a large number of applications, the Panchayat resolved in its meeting of 25th June, 1966 that the Mamlatdar concerned should be approached and a requisition be made in this behalf for acquisition of about 40 Acres of land. The General Election to the State Legislature Assembly was held in or about February, 1967. The grievance of the petitioners,. therefore, in their petition is that as they happened to be the supporters of Swatantra candidate contesting the election who was opposed by a Congress candidate they have been singled out for ill-treatment by the Sarpanch Shri Patel Ishaverbhai Harmanbahi who was the supporter of the Congress candidate. There cannot be any possibility of even commencement of the canvassing for the concerned candidates in May 1965 or in about June 1966 when the application were invited from interested person for the building sites and when such applications were received. It was should be recalled that this village Navli. as pointed out by the Sarpanch Ishverbhai Harmanbhai in his affidavit-in-reply in paragraph 7, was established some 600 years before. It needs no imagination to agree with the respondents that the site of such a village even in ordinary course of development would require extension. In our opinion, therefore, there are no circumstance established in this case from which it can be suggested much less inferred conclusively that there were mala fides on the part of the Sarpanch of the respondent-village Panchayat. The second contention, therefore, should be rejected.

8. The third contention raised on behalf of the petitioner was about the non-application for mind by the authorities to the State Government before issuing notification under S. 6 of the Land Acquisition Act. According to the petitioners, there were a number of pieces of land lying adjacent to the village site of village Navli and the and these piece of land have not been considered by the authorities and have been excluded from acquisition for purposes of extension of village site of Navli. The petitioner have in paragraph 6 of their petition averred that, if the local situation of the lands in question had been taken into account by the authorities. it would have been clear to them that they were scattered pieces of land situated at a distance from the present village site lands and the lands bearing S. Nos. 521, 523, 524,649,648,650 and 653 which are lying just adjacent to the present village site lands would have been more convenient and suitable for purposes of extension of village site. Now this averment of the petitioner has been refuted by the State Government as well as by the village Panchayat concerned. In paragraph 7 of the affidavit-in-reply on behalf of the State Government. it has been pointed out that the lands of the petitioner were selected for acquisition because they were found to be more suitable as being situated between Anand-Umeta road and the village site of Navli which is a development area. As regards the different survey numbers of the land which ought to have been considered by the State Government according to the petitioner, they have also been referred to and explanation in respect of each of these pieces of land have been given by the State Government in its affidavit-in-reply. It has been pointed out that as regards the land of S. NO. 521 there is a Primary Health Centre and there are other three buildings thereon. On S. No. 649 there is a well, engine room, and a Pukka building. The land of S. No. 648 is put to non-agricultural use and,. therefore, kept and of consideration. On land of S. No. 850 there is a tobacco 'KHALI' and houses and on No. 653 there are manures pits. which were, therefore, kept out of consideration. On S. No. 523 there is a church and tobacco Khali and on S. No. 524 there are house of Ravalias, a well and engine pump. It has been, therefore. stated in the affidavit-in-reply on behalf of the State Government that the said survey numbers were already used for building and other non-agricultural purposes and, therefore, they were not taken under acquisition just as they did not acquire parts of S. Nos. 527/2 and 646/1+2 though the remaining part of the aforesaid two survey numbers were acquired. Miss Shah has, however. in this connection drawn our attention to the affidavit-in-rejoinder for on behalf of the petitioner and particularly paragraph 6 thereof. The gist of this paragraph 6 is that the petitioner do not admit that the aforesaid survey numbers are used for building and other non-agricultural purposed and it is reasserted in the affidavit-in-rejoinder that the number of portion of said survey numbers is under cultivation. In this connection, it should be noted that this case has not been pleaded in the village petition of the petitioner. The only case, which has been made out in respect of these survey numbers in their petition is that these pieces of land belonged to the relatives of the Sarpanch of the respondents-Panchayat. two Congress candidate, Miss Shah, however has drawn in this respect our attention to paragraph 7 of the petition. wherein after referring to the measurements of different pieces of land, it has been stated as under:--

'.............. The measurement of these survey numbers which are left out of the acquisition makes it abundantly clear that it was economical or profitable serve cultivate these land and it could serve the purpose of extension of the village site the better manner than the lands of petitioner if these lands which were less than fragments, were acquired for the alleged purpose of extension of village-sire'.

It was, therefore urged by Miss Shah that these pieces of land were used for agricultural purpose as has been stated in paragraph 7 of the petition. We are however, not inclined to accept this submission of Miss Shah for the simple reason that in terms it has not been stated that those pieces of the land are for all intents and purposes used as agricultural lands. On the contrary the tenor of the passage quoted above indicates that as it was not economical or profitable to cultivate these lands they would have been more suitable for purposes of extension of the village site land. Impliedly in other words. it means that the owners of these pieces of land referred in paragraph 7 of the petition and which were left out of the acquisition proposal found them to be uneconomical for cultivation. It may be, therefore, that these pieces of land were put to other non-agricultural use in any case it has been brought out clearly in the affidavit-in-reply filed on behalf of the State Govt. that the authority concerned had applied mind to the different circumstance in respect of the survey numbers which were left out of the acquisition and more particularly referred to in paragraph 6 of the petition.

Miss Shah has however, drawn our attention to the decision of the Division Bench of the High Court in Spl. Civil Applns. Nos. 82, 83 and 84 of 1965 , decided on 19/20th March, 1969 (Guj). The court was concerned in those Spl. Civil Appln. with the legality of the notification acquiring the lands of the three petitioner concerned therein for purpose of extension of village site at village Radhwanaj. Taluka Matra. The Notification were challenged, inter alia, on the ground of non-application of mind by the authorities to the relevant facts before taking a decision to acquire the lands involved in the said applications. The contention was that the acquisition in those petition was mala fide and in colourable exercise of power there because as a matter of the fact the acquisition was made for the benefit of 30 individuals referred to in paragraph 14 of the petitioner under the guise of extension of village sire and therefore had been no application of mind on the public purpose. While dealing with this contention after referring to the rival versions as stated in the affidavit of the petitioner and affidavit-in-reply of the State the Court observed as under:--

'............ The picture therefore that emerges from this, prime facie, is that there is genuine need for these persons to have village site for residential purposes unless we are pointed out facts from the records which can obliterate this picture'.

After finding as above, the Court referred to the contention of the leaner Assistant Government Pleader who urged that it was for the petitioner to establish that there was colourable exercise of poser by the State Government and that it was not open to the Court to the enter into an inquiry was to whether there was any need or not because the Government is the sole judge to decide, whether there are need for the declared purpose or not. The Court while disposing of this contention observed as under:--

'.............. These are indeed submission which cannot be challenged. But the question that requires to be considered is not whether there was need or not but it is as to whether the Government did apply its mind and arrive at its satisfaction that there was such a need at the time when the declaration was made in Section 6 notification. It is certainly open to the Court to inquire from the record before it as to whether as matter of fact there was such need and whether the Government had in fact considered as it whether there was such a need or not. if it is established on the record that the Government has not genuinely satisfied itself as regard the need and these has been no application of mind at the time the declaration was made. the purported exercise of power to the acquire has to be held to be mala fide'.

We do not understand how this authority takes the case of the petitioner hearing any further. In the first instance. the petitioner have not made out a case as the petitioner in the case which has been cited before us in their petitioner that the acquisition was made for the benefits of a few individuals. On the contrary the main emphasis in the present petitioner is no the mala filed on the part of the Sarpanch of the respondent No. 3 Gram Panchayat of Navli and in terms it has not been alleged in this petition that the acquisition has been made for the benefit of a few individuals. It is only when in the affidavit-in-reply the State Government brought out the fact that the in pursuance of the invitation of the application by the Mamlatdar from the persons interested in building sites as many as 290 persons had not need for building sits, with some vague and general reason stated in the affidavit-in-rejoinder of the petitioner. The contention that there was a non-application of mind by the authorities before issuing notification under Section 6 of the Act is to be found out from the affidavit-in-reply. It has been stated in paragraph 3 in the affidavit on behalf of the State Government as under:--

'.................. The Mamlatdar. Anand under his circular No. LND-was 1617 dated 31-5-1965 invited application from the persons who were interested in plots for building house though the Gram Panchayat so that acquisition proceedings can be initiated. As about 290 such application came. The Panchayat resolved on 25-6-1966 by Resolution No. 10 (179) that the Mamlatdar. Anand should be requested for acquisition of 40 Acres of land. The application we also addressed to the Mamlatdar. Most of the application were made on 13-6-1966, 16-6-1966, 19-6-1966 etc, whereas the General Elections to Assembly were held in February, 1967'.

In paragraph 4 of the affidavit-in-reply on behalf of the State Government it has been stated as under:--

'Section 4(1) Notification was issued by the Government after making elabo of the inquired and also obtaining opinion of the District Health Officer. District Panchayat Nadiad'.

In paragraph 6 of the said affective it has been stated as under:--

'More than 20 applications have been received and the number is increasing and the applicants are in urgent need for plots of buildings houses. Theses application have been duly scrutunised by the Gram Panchayat and at Taluka level. Even every of the petitioners have asked for plots which jurisdiction that the problem of house accommodation is very acute and most urgent'.

The affidavit-in-reply on behalf of the village Panchayat has also averred to the same effect. In the affidavit-in-rejoinder in paragraph 4, the petitioner have staged. 'It is not true and not admitted that many of the petitioner have applied for one or more plots from the land under acquisition. I state which only on petitioner had applied as at that point of time it was stated that the land known as 'Charedi' was to be acquired and plots from the said land were to be allotted to those persons who made application fro those obtaining the plots'. In our opinion therefore, it cannot be said that the authorities had not applied mind to the relevant facts before deciding to issue Notification under Section 6 of the Land Acquisition Act. On the contrary, it has been positively asserted that the application of 260 applicants were scrutinised at the Taluka level and the Gram Panchayat level by the authorities concerned. It has been also brought to that the one of the petitioner and applied for the plot of land in the extended village sits and that fact has been admitted by the petitioner. In our opinion therefore the contention that the authorities had not considered the relevant circumstance in respect of the survey numbers referred to in paragraph 6 of the petitioner before excluding them from acquisition proposal is not borne our. On the contrary, the state Government has given a detailed explanations for each piece of the land were put to non--agricultural use, the authorities might not have though it desirable and proper to acquire them. It is not correct to say that these pieces of land were to be excluded from the village site land. It will ultimately depends on the Collector, who may, while refixing of the boundary site of village Navli under Section 136, think fit to include of execution them. However, the only relevant consideration, which arises forth purpose of the present petitioner is, whether the authorities had considered the relevant facts in relation to these pieces of land while taking the decision to exclude them from acquisition under Section 6 Notification.

Miss Shah has also made a grievance in respect of two other pieces of land. which according to the petitioner, should have been considered as sufficient land for purposes of extensions the village site. One of the pieces of land referred to by Miss Shah was land know as 'Charedi' of S. No. 80. In Paragraph 5 of the affidavit-in-reply on behalf of the State Government in respect of the piece of land S, No. 80 known as 'Charedi'. it has been stated as under:--

'I further submit that the land known as 'Charedi' is mostly used and assigned for cremation ground of various communities. The land is uneven and undulating. The people would not like to stay very close to the cremation ground in a village like Navli. The area of Charedi land at present is about A. 4-6 G and is used for cremation programme. Near Charedi there are Bal-Mandir, Girls school temple etc. but there is no suitable land available of construction of houses'.

We have not been able to appreciate how a piece of land which is being used for cremation ground can be said to be a suitable piece of land for purposes of extension of village site. Secondly, the land under acquisition is measuring more than 10 Acres. It could not therefore, be said that the land of 'Charedi' of the S. No. 80 could be said to be sufficient for purposes of the extension of village site. Miss Shah has also drawn our attention to the availability of land of S. No. 44 which is lying south-east to S. No. 80. In respect of this survey number, the case of the State Government is that it measures about Acres 2-36 Gunthas and is being utilised for imparting agricultural bias training to students and that that area of the said survey number is not sufficient for extension of the village site land. It should be recalled that that acquisition is for the land measuring about H 7-R 7-S 20 = more than 10 Acres. If therefore, in the opinion of the authorities of the State Government two pieces of land are neither suitable not sufficient for purposes of extension of village site land. how can this Court while consideration whether the State authority has applied mind or no substitute it sown judgment or funding that they were either suitable or sufficient pieces of land for extension of the village site? Miss Shah, therefore made in effect to persuade us that all the pieces of land acquired would not constituted compact area for purpose of extension of village site land. In support of this contention she has drawn our attention to the map which has been placed on the record along with the petitioner. She has pointed out that the lands of S. Nos. 644, 645, 646 and 647 are lying north-east to the road leading toward Juna-Andhariya and the other lands, namely S. No. 429, 430, 431, 520, 521, 522, 525,526 and 527 are lying to the west of the road. The lands of S. Nos. 523-A, 523-B, 524, 648 and 649 which are lying just adjacent to the present village suite and excluding from the present acquisition proposal, would create a problem and the road will divided the acquired land into blocks as the lands of S. Nos. 644, 645, 656, and 657 are lying to the east of the said road. On a perusal of map we are of the opinion that the scheme of the acquisition appears of the that land lying to the east. northeast and south-east of the present village site should be acquired. As stated earlier, in this judgment a block of land situated between the two roads namely road leading to Juna Andhariya and road from Navli to Umeta had been sought to the acquired. The explanation of the State Govt. it that these is development on that side of the road and some of the lands which were put to non-agricultural use were excluded. it is no doubt true that the land of S. Nos. 644, 654, 646 and 647 are not situated between the aforesaid two road and are lying to the east of the road leading to Juna-Andhariya. but we do the find any justifying ground to accept the contention of Miss. Shah that the acquisition in the manner in which it has been done by the Government would either create some pockets of would no constitute a compact block of land. On the contrary, a lock at the map would convince any one immediately that except a few pieces of the land of the aforesaid four survey number of the acquired land would not constitute a compact block lying between the aforesaid two roads. Therefore, the contention that there was non-application of mind to this aspect is also not correct. The third contention, therefore should be rejected.

9. Miss Shah thereafter urged that the acquisition was not for public purpose. In this connection she has noted out to the use that cost of the acquisition was not to come out of the fund of the local authority and for all intents and purpose the cost the acquisition was to come out of the pockets of the intending purchasers of the plots made out form the lands acquired. Miss Shah has also made a serious grievance that though the petition have asked for the strict proof about the relevant resolution of the Panchayat in this connection. the resolution have not been placed on record this case and it has not been shown also from the record of the Panchayat or of the Government that either resolution was made or a provision was made in the budget of the relevant years providing the for appropriate amount of costs of the acquisition of the pieces. of land. Miss Shah has pointed out relevant sections in this connection from the Gujarat Panchayat Act and urged that before a Panchayat can exercise its power of acquiring the land, a resolution should be made and if the cost of such an acquisition is to come out from the funds of the Panchayat a provisions in it budget is necessary and a resolution also request to be passed and before an acquiring can be said to be legal and valid necessary action under the Act governing the business of the village Panchayat must be taken.

We must say frankly, we are at all impressed by this submission of Miss Shah. In the first instance. it has been clearly stated in the affidavit-in-reply filed on behalf of the State Government as well as Panchayat that the entire cost of the Acquisition was to come our of the from the funds of the Panchayat and the respondents No. 3 Panchayat has made a deposit of Rs. 13,100/- in the year 1968. The grievance of Miss Shah is that though this amount of the was deposited in the year 1968. it was particularly a collection of the contribution mad by the intending purchasers which was deposited in the Government treasury and, therefore, it cannot be said that the same was the fund to the Panchayat or it was deposited out of the funds of the Panchayat under the Gujarat Panchayat Act. We have not been able to appreciate how this can be urged, when it is the case of the Government as well as the Panchayat that the entire contribution is going to the come out from the funds of the Panchayat. or how it can be said that the costs was not to come out from the Panchayat . Miss Shah has urged before us that in order that it could be said to be fund of the Panchayat it must be on in reality and in law. In support of this contention she has relied on the decision of this Court in Ashok Kumar Gordhabhai v. State of Gujarat. (1969) 10 Guj LR 503 where the Court was concerned with the acquisition for purposes of industrial township to be established by the Gujarat Industrial Development Corporation Miss Shah has relied on head-note to be found at page 504 of the judgment which reads as under:--

'The requirements of the proviso to sub-section (1) of Section 6 of the Land Acquisition Act will not be complied with by the mere physical fact of the amount coming out of the public revenues to meet to the cost of acquisition. It can be said to be complied with only if the amount in reality and in law can be said to be in amount belonging to the public revenues at the point of time when such payment is made. In this case, though the money actually comes from the public revenues to meet the cost of acquisition. at that very moment by a pre-existent agreement it is treated as a loan to the Corporation. From these documents a clear picture emerges of an compact scheme of acquisition based on agreement between the Government and the Corporation which inter alia provides that though the Government will give from the public revenues the amount to meet the costs of acquisition the amount will be considered to be a loan or an advance to the Corporation which will be recoverable by the Government with 6 per cent interest by half years instalment within fifteen years. So where the Government actually sets apart the amount or makes the payment. the amount has cased to belong to public revenues as it is treated as a loan to the Corporation and it is the money of the Corporation that it part to meet the cost of acquisition'.

Miss Shah has, therefore, urged that this amount which is deposited in the Government treasury cannot be said to be a fund of Navli Panchayat in reality and in law because it was s fund contributed by the interested purchasers,. Out attention was also drawn to Section 99 of the Gujarat Panchayat Act. which provides for the funds of the village Panchayat. The relevant clauses (h) and (i) of sub-section (2) of Section 99, provide that all sums received by way of gift or contributions by the Panchayat and the income or proceeds of any property vesting in the Panchayat shall be paid into and form part of the relevant fund of the village Panchayat. We are, therefore, of opinion that even if these are the contributions collected directly from the interested persons, they would be covered in any case by clause (h) of the sub-section (2) of Section 99 of the Gujarat Panchayat act and therefore, for all intend and purposes it would be a fund of the village Panchayat. However, this contention should not detain us further because the definition of terms 'public purpose' as given in Section 3 (g) clearly provided that the expression 'public purpose' includes the acquisition of land for purposes of development of area from public revenues of some fund controlled or managed by a local authority and subsequent disposal therefore in whole or pat by lease assignment or sale with the object of securing further development. It is, therefore, clear that the acquisition of land with a view to develop the area from some fund controlled or managed by a local authority and subsequent disposal thereof in whole or in party by method of transfer, suggested in the definition. would be included within the expression 'public purpose'. The definition makes it clear that the cost may come out of any fund controlled or managed by a local authority. It is therefore, obvious that fund need not be of the local authority itself it may be any fund either controlled or managed by the local authority and if that is going to be the source out of the which the costs of acquisition is to come. it would satisfy the definition of the term 'public purpose' and the subsequent disposal either wholly or in part either by lease. assignment or sale with the object of securing further development of the area would constitute ' public purpose ' for which the acquisition can be made and if the notification under Section 6 declares that the cost is to come out of the fund controlled or managed by the local authority that declaration would be beyond the scope of challenge unless it could be shown by the petitioners that notification has been made in fraud of powers or in colourable exercise of the powers of acquisition. The 4th contention of Miss Shah. therefore must fail.

10. The last contention of Miss Shah was that there was no need for acquiring as much as 10 acres of land because there were. within the present village site of Navli, open pieces of building sites as well as 300 Gabhans. Miss Shah has in this connection relied on the admission of the State Government in affidavit-in-reply that the land of S. No. 648 is lying vacant. The State Government has stated in affidavit-in-reply in paragraph 7 as under:--

In Survey No. 648 non-agricultural use is made hence not taken under acquisition.'

Miss Shah has, therefore. urged that this clearly shows that the land of S. No. 648 which has been allowed to be put to non-agricultural use was available. In this connection she has also referred to the lands of S. Nos. 80 and 44. She has also drawn our attention to her case in the petition that there are about 300 Gabhans available in village Navli. This contention of Miss Shah is in our opinion. not well founded. Firstly, it should be recalled that in reply to the invitation of applications by the Mamlatdar from intending purchasers interested in building sites in village Navli, the Gram Panchayat received as many as 290 applications. This fact alone shows that there was requirement for the open pieces of land for purposes of constructing new buildings. In the affidavit-in-rejoinder. the petitioners have tried to explain this by stating that this desire was nothing else but a sort of raising status in the society. We are not impressed by this explanation of the petitioners. The very fact that this village Navli was established some 600 years ago as referred to above in the affidavit-in-reply on behalf of the respondent Panchayat. it is clear that it would now require an extension of its site. The Panchayat's resolution in this behalf also establishes the fact that there was a need for extension of the village sire land. The scrutiny of the applications at the village and Taluka level also established that the authorities have given due consideration to the request made by the residents of the village who had applied and who would apply in future. It has been stated in affidavit-in-reply on behalf of the State that besides 290 applications additional applications were being received. The village Navli is situated in the neighbourhood of Anand town which is a fast developing area. It has been also stated by the State Government that the extension has been made towards the site where there was development on Navli-Umeta road. It is no doubt true that the land of S. No. 648 could not sell the plot of his land and, therefore. it was allowed to be put to non-agricultural use in lying vacant. It has been stated in the affidavit of the petitioners that the owner of S. No. 648 could not sell the plot of his land and, therefore. it was allowed to be put to non-agricultural use so as to divide it into plots. We do not know the reasons why the owner of S. No. 648 could not dispose of the land. It may be for various reasons with which we are not concerned. The availability of 300 Gabhans would also not conclude the matter as the petitioners want us to do. The requirement would be necessary in view of the number of cattle head in the village. the petitioners have not brought out any data on the record in their petition so as to show that these 300 Gabhans were in excess of the actual requirement of the cattle head of the village. In view of what is stated above, we are not convinced that it can be urged successfully by the petitioners that there was no need for the acquisition of 10 acres of land as sought to be done here by the Government. The last contention of Miss Shah on behalf of the petitioners must, therefore be rejected.

11. The result is. therefore. that this petition fails and is dismissed with no order as to costs.

12. Petition dismissed.


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