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Lekhraj Sabumal and anr. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 669 of 1974
Judge
Reported inAIR1980Guj47; (1979)2GLR125
ActsLand Acquisition Act, 1894 - Sections 4 and 6; Specific Relief Act, 1963 - Sections 34
AppellantLekhraj Sabumal and anr.
RespondentState of Gujarat and ors.
Appellant Advocate M.N. Bhavnani, Adv.
Respondent Advocate M.A. Trivedi and; B.R. Oza, Advs.
Excerpt:
property - land acquisition - sections 4 and 6 of land acquisition act, 1894 and section 34 of specific relief act, 1963 - plaintiffs instituted suit for declaration that land acquisition proceedings not binding on plaintiffs and illegal - no valid notification empowering government to acquire land - government had no authority to remove plaintiff from their land and acquire it. - - 6. in the first instance, it is her grievance that there is cogent and reliable evidence on record showing that the plaintiffs were in occupation of the suit land for a considerable period and that they had put up their construetions on the land and they were tenants of the landlord paying rent to him and were, therefore, prima facie, persons interested and the learned judge was, therefore, wrong in..........3 to 48. the plaintiffs instituted the said suit for a declaration that the notification and the land acquisition proceedings were not binding on the plaintiffs and illegal and they prayed for an injunction restraining the defendant-government taking possession of the land on which the plaintiffs had constructed their huts and structures and from removing the said constructions, without obtaining orders from the competent court or without following the required procedure under law.3. it was the case of the plaintiffs that in the land of survey number 62 of behrampura ward, ahmedabad there were huts, rooms and buildings in the property called lekhraj mahadev chawl and the same were constructed. by then 20 years before the purported acquisition by their awn. money and they were residing.....
Judgment:

1. This appeal by two of the original plaintiffs is directed against the judgment and decree of the learned Judge of the City Civil Court, 6th Court, Ahmedabad dated 29th Sept. 1973 in Suit No. 74 of 1970 which was dismissed by the learned Judge.

2. Respondent No. 1 is the original defendant-State of Gujarat while respondents Nos. 2 to 47 are original plaintiffs Nos. 3 to 48. The plaintiffs instituted the said suit for a declaration that the notification and the land acquisition proceedings were not binding on the plaintiffs and illegal and they prayed for an injunction restraining the defendant-Government taking possession of the land on which the plaintiffs had constructed their huts and structures and from removing the said constructions, without obtaining orders from the competent Court or without following the required procedure under law.

3. It was the case of the plaintiffs that in the land of survey number 62 of Behrampura Ward, Ahmedabad there were huts, rooms and buildings in the property called Lekhraj Mahadev Chawl and the same were constructed. by then 20 years before the purported acquisition by their awn. money and they were residing therein with their families and their occupation was with the consent of the owner of the suit land to whom they were regularly paying rent in respect of the land in their possession over which they had constructed the said structures. The State Government issued the notification under S 4 of the Land Acquisition Act ('the Act') for acquiring the suit land for the purpose of a burial ground and a slaughter house for the Ahmedabad Municipal Corporation and it was the plaintiffs' case that though they were persons interested in' the land, no notices were served on them and no intimation of the said proceedings was given to them th6ugh they were persons In actual possession of the land. The notification under S. 4 of the Act was issued on 5th April 1957 and the notification - under S. 6 was issued on 21st Nov. 11963 and In August 1969. on being threatened that their constructions would be forcibly removed if the same were not removed by 22nd August IN9, the 48 plaintiffs filed the said suit against the defendant State and Special Land Acquisition Officer (defendant No. 2) and Ahmedabad Municipal Corporation (defendant No. 3). Defendants Nos. 2 and 3 were later deleted by an order passed as per Ex 38 in the suit and the suit, therefore, proceeded against the sole defendant - that is - State of Gujarat.

4. The suit was resisted by the /4efendant inter alia on the ground that the same was not maintainable; that the plaintiffs had no right to file the same and that they were not per moos interested in the land under acquisition. It was also denied that the plaintiffs were residing on the suit premises for over a period of 20 years. It was also contended that the requisite notices under S. 4 (1) of the Act were issued after publication of the notification under S. 4 of the Act against persons whose names were in the revenue record and were affixed on the site and the prominent place as required under the Act and persons interested In the land under acquisition filed their objections and after making necessary inquiry under S. 5-A of the Act, the said notification under S. 6 of the Act was issued which was published fn the Gazette on 21st Nov. 1963 and that, therefore, the plaintiffs' suit was misconceived and that the plaintiffs were not entitled to any of the reliefs prayed. As many as 13 issues were framed by the learned Judge, but in view of the joint purshis given by the parties as per Ex. 656, issues Nos. 1, 2,3, 4,7, 9 and 10 were not pressed and the evidence was laid on the remaining issues. On the evidence led, the learned Judge recorded a finding that though it was not necessary to decide Lqsue No. 5 with regard to the locality of the acquisition proceedings, yet, if the said issue was to be answered, the answer was that the plaintiffs had proved that the land acquisition proceedings in respect of the suit land were illegal. Similarly, he answered issue No. 6 in the affirmative and held that the plaintiffs had proved that the land acquisition proceedings were unreasonably delayed as allegedin oara 6A of, the plaint. He, however. held that in view of his finding that the Vlainti(T5 were not persons intereqted in the lancL. the -plaintiffs would not be entitled to the reliefs claimed', by them and he~ ss=e .Z~ suit, and hence tthheisre`a0pp`e'aPVY plaintiffs Nos. I and 2

5. Miss Ehavnard, the learned AdVOCate appearing for the appellants submits that in the instant case, in spite of the finding by the learned Judge that the acquisition proceedings were illegal and that there was unreasonable delay in publishing the notification under S. 6 of the Act, the learned Judge erred in not granting the reliefs prayed for, to the plaintiffs on an erroneous view that the plaintiffs were not persons interested in the land.

6. In the first instance, it is her grievance that there is cogent and reliable evidence on record showing that the plaintiffs were in occupation of the suit land for a considerable period and that they had put up their construetiOns On the land and they were tenants of the landlord paying rent to him and were, therefore, prima facie, persons interested and the learned Judge was, therefore, wrong in holding that they were not persons interested. In the alternative, she submits that even assun-ting for the sake of argument, that the plaintiffs are not persons interested and even trespassers, as impliedly assumed by the learned Judge, even then, they would be entitled to the reliefs claimed of injunction against the Government, because the Government will have no authority to take any action of whatsoever nature in respect of this land because the acquisition proceedings are illegal by virtue of the fact that the notification under S. 6 of the Act from which flows the power of acquisition is invalid.

7. I find considerable force in this alternative argument of Miss Bhavnant and it is. therefore, not necessary to go into the first question because she has a very good case on the alternative submission.

8. Reliance in this conno -'.ion was placed on Valji Mulji Soneii . State of Gujarat (1970) 11 Guj LR 95. is was a case in which there was delay of 15 years between the issuance of th notification under Section 4 and the 'SSUI ance of the notIfication ',, under S. of the Act and the Division~Bench of ts Court held that the delay, being unreasonable. the impugned S., 5 notification cannot be said to be validly issued by the Government Bhagwati~ C. J. (as he then was) who delivered the judgment of the Court, after referring to the scheme of Ss. 4, 5A and 6 of the Act, and after referring to the consequences of delay, made these important observations which appear at p. 102:-

'These circumstances clearly and inevitably point to the conclusion that the Legislature could never have intended that the declaration under S. 6 may be made at any time even after the expiration of an indefinite or unreasonable length of time after the issue of S. 4 notification. The exercise of the power to make a declaration under S. 6 after an indefinite or unreasonable length of time would clearly be unreasonable and must therefore lead to the implication that the notification under S. 6 must be issued within reasonable time after S. 4 notification.' This Court ultimately, an not being satisfidd that the period of 15 years which',elapsed between the date of S. 4 notification and the impugned S. 6 notification could be said to be reasonable time within which the impugned S. 6 notification could be validly Issued by the Government, struck down the hupugned S. 6 notification as invalid.

9. In the instant came also, there to hing to justify that the long period of 6 years and 9 months which elapsed between the two notifications can be termed as reasonable. As rightly observed by the learned Judge, there is no evidence to show as to what was he time required for the enquiry and or making a report under S. 5-A to he Government and that in the absence of any evidence led by the bs~0eendant, the only inference that can e drawn-is that there was unreasonable time taken in issuing the notification under S. 6 of the Act.

10. But , it was then urged by Mr. Trivedi, the learned Assistant Government Pleader appearing for the State that. if the plaintiffs are not persons interested and are trespassers in the land as held by the trial Court, then they would not be entitled to the relief of injunction because a trespasser has no right of possession in the land.

11. I am unable to accept this contention of Mr Trivedi. In the first instance, there Is no clear and unequlvocal finding by the trial Court that the plaintiffs are trespassers on the land. -The only clear finding which the trial Court recorded is about the plaintiffs not being, persons interested. That! would at the most disentitle them- to have certain notices served on them on the basis that they are persons interested and as suck entitled . to such notice. But if there is no valid notification under S. 6 of the Act, the authorities cannot act vis-a-vis the land under purported acquisition and if an attempt is made to take possession from a person in occupation or to remove and demolish structures or construction put up by a party, he would not be debarred from resisting such an illegal action or from approaching a Court of competent jurisdiction with a prayer for restraining the authority from disturbing his possession or removing his construction purporting to act under power conferred by the Act, which power does not vest in the c6ncerned authority in the absence , of a valid notification under S. 6 of the Act, simply because he is not a person interested, as such.

12. The position would not be different if the plaintiffs have trespassed on the lands which are later purported to be acquired but in respect of which no valid notification as contemplated under S. 6 of the Act is issued in the instant case, the threatened action of the Government to get possession of the land in occupation of the plaintiffs is on the basis that by virtue of a valid notification issued under S. 6, the State is entitled to acquire and get possession of the suit land. If the acquisition proceedings are illegal and if there is no valid notification issued under S. 6. then, the very source from which the said power flows to deal with this land, that is to acquire and to get possession dries out and the State becomes functus officio so far as this land is concerned. If the plaintiffs are trespassers on the land. it would be a matter between them and the real owner of the land. In such a context, the State would be a stranger or a third party so far as this land is concerned. So long as there is no valid notification empowering the Government to acquire the land. the rrovosed action on the part of the Government to remove the plaintiffs from the land, or to remove and demolish their structures is without any authority and the plaintiffs, therefore. would be entitled to an injunction to the effect that the State Government, its servants and agents be 'restrained from removing the plaintiffs from the land under the purported acquisition by virtue of the impugned notification under S. 6 and that the plaintiffs' structures be not removed without due process of law or without following the required procedure according to law. This, of course, does not debar the Government from issuing in future is valid notification under S. 6 and proceed to acquire the land on the basis of such a notification by following the procedure prescribed by law.

13. The view which I am taking is in consonance with the Scheme of the Act and the purpose and object which it has to achieve by following the procedure prescribed under the Act. If we scrutinise the relevant part of the Scheme of the Act, it becomes evident that unless there is a valid declaration as required under S. 6 of the Act, further proceedings for acquisition of the land cannot be taken. First of all, as provided by S. 7, the Government or some officer authorised by appropriate Government, has to direct the Collector to take an order for acquisition of the land. Thus, the Collector has to be clothed with a specific order for acquisition of the land. Now, the condition precedent for issuing such an order as contemplated under S. 7 is a valid declaration under S. 6 because S. 7 starts with the words 'Whenever any land shall have been so declared to be needed Unless, therefore, there is, a valid declaration as required under S. 6, no order under S. 7 clothing the Collector to take acquisition proceedings can be issued. Again,the further steps as contemplated in S. 8 for measurement etc. followed by potices to persons interested under S. 9 issuing requisitions under S. 10 f~; making statement as to names and interest and an inquiry and award by the Collector as contemplated under .4. 11, cannot be taken unless they are preceded by a valid declarationunder S 6. The power to take possession under S. 16 after the making of award tinder S. 11 whereafter the property vests absolutely in the Government free frown all encumbrances as also special powers in cases of emergency as provided in S. 17 for possession where upon also the land vests absolutely in Government free from all encumbrances, cannot be exercised in absence of a Valid notification under S. 6 of the.Act. It would be thus seen that the very bottom would be knocked out of the State's case for taking any action as sought to be taken in the instant case in respect of a land under purported acquisition, unless It has the Protective umbrella of a valid notification under S. 6 of the Act. It, therefore, follows that the Government, in absence of any such valid notification issued under S. 6, will have no authority or power whatsoever to deal with the land purported to be acquired and consequently any action contemplated against a person interested in the land, or in occupation of the land, or even a trespasser, or any action for removal of structures standing on the land, will not have the backing of any authority under the law and will, therefore, be illegal, unauthorised and ultra vires the powers vested in the Government by the Act.

14. The result, therefore, of the above discussion is that the appeal will be allowed and the decree and order of the trial 'Court dismissing the plain tiffs' suit will be set aside and in its place will 'be substituted a decree and order issuing an injunction against the defendant-State in terms set out in the last para above. However, in the facts and circumstances of the case, there will be no order as to costs throughout.

15. Appeal allowed.


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