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Hiralal Harjivandas and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1964)5GLR924
AppellantHiralal Harjivandas and ors.
RespondentState of Gujarat and ors.
Cases ReferredNavnitlal v. State of Bombay
Excerpt:
- - the land in question is neither waste nor arable and therefore the notification under section 4(1) read with section 17(4) is bad in law and issued without jurisdiction as it was issued without determining the objective fact as to whether the land was in fact waste or arable land; that all proceedings consequent upon the impugned notifications under sections 4 and 6 were also illegal and void and therefore the notice under section 9 was bad; even if it were to be held that the urgency clause was rightly applied the notice under section 9 and the action to take possession thereunder were bad as the notice was served on the petitioners on december 12 1960 and possession was sought to be taken from the petitioners on december 13 1960 i. it is clear that under section 4(1) it is the.....j.m. shelat, c.j.1. the petitioners are the owners of survey no. 205/1 of paldi situate near hirabaug within the municipal limits of the third respondent corporation and admeasuring 4598 square yards. they had purchased this plot by four different sale deeds all dated october 1, 1957 with the object of constructing thereon bungalows for themselves. soon after the purchase petitioner no. 1 applied for permission for n.a. use and by an order dated march 22, 1958 the city deputy collector ahmedabad granted that permission. thereafter the first petitioner submitted building plans to the third respondent corporation but the estate and city improvement officer of the third respondent corporation by his letter dated may 28, 1958 declined to give sanction on the ground that the land in question.....
Judgment:

J.M. Shelat, C.J.

1. The petitioners are the owners of Survey No. 205/1 of Paldi situate near Hirabaug within the municipal limits of the third respondent Corporation and admeasuring 4598 square yards. They had purchased this plot by four different sale deeds all dated October 1, 1957 with the object of constructing thereon bungalows for themselves. Soon after the purchase petitioner No. 1 applied for permission for N.A. use and by an order dated March 22, 1958 the City Deputy Collector Ahmedabad granted that permission. Thereafter the first petitioner submitted building plans to the third respondent Corporation but the estate and City Improvement Officer of the third respondent Corporation by his letter dated May 28, 1958 declined to give sanction on the ground that the land in question was being acquired. Since nothing appeared to have been done for about two years the petitioners through their advocate wrote to the third respondent on July 26, 1960 enquiring as to why no intimation of any purposed acquisition was yet communicated to them and again asked the Corporation to sanction the plans. The Municipal Corporation however did not write to the petitioners whether it was going to sanction or not the said building plans and thereupon the petitioners again wrote on November 2, 1960 asking for a decision in writing. On November 29, 1960 the Town Development Officer of the third respondent Corporation informed the first petitioner that the application for sanction of the plans was rejected as the land was being acquired for a scheme of the Corporation for slum clearance and re-housing and also informed the first petitioner that a notification under the Land Acquisition Act was already issued. This communication to the petitioners by surprise as the Additional Land Acquisition Officer by his letter dated November 9, 1960 had informed the petitioners that the land was proposed to be acquired for residential buildings for a society which called itself by the name of Mahatma Gandhikunj Co-operative Housing Society and had enquired from the petitioners if they required the land for their personal use. On November 30, 1960 the petitioners had written to the Land Acquisition Officer protesting against the proposed acquisition for the society and had informed him that they needed the land for constructing bungalows for themselves. Since the petitioners had thus received two letters one from the Corporation and the other from the Land Acquisition Officer each mentioning a different purpose for the proposed acquisition the petitioners enquired of their vendors whether any orders had been issued in respect of the land and thereupon the petitioners vendors informed them that they had received a notice on December 8, 1960 under Section 9 of the Land Acquisition Act 1894 and an intimation that possession of the land would be taken by the Special Land Acquisition Officer on December 13, 1960 Though the notice was served on the vendors on December 8, 1960 no such notice was served on the petitioners although their names were in fact set out in that notice. On December 10, 1960 the father of respondents 3 and 4 and their advocate saw the second respondent and told him that though possession was proposed to be taken on December 13, 1960 no notice under Section 9 was served upon them. According to the petitioners on an enquiry they found that on December 19, 1957 a notification under Section 4(1) read with Section 17(4) Exhibit was issued to acquire 4231 square yards out of the said lands for the purpose of slum clearance housing and roads and another notification dated August 5 1958 under Section 6 of the Act Exhibit H to the petition was issued in respect of the said 4231 squares yards out of the said lands. On February 21, 1959 another notification was issued under Section 4 proposing to acquire 363 square yards out of the remaining lands for the same purpose.

2. The petitioners have challenged these two notifications copies whereof are Exhibits a and H to the petition on the grounds that-

I. the land in question is neither waste nor arable and therefore the notification under Section 4(1) read with Section 17(4) is bad in law and issued without jurisdiction as it was issued without determining the objective fact as to whether the land was in fact waste or arable land;

II. the condition precedent of the urgency clause under Section 17(4) of

the Act is that the land must be waste or arable land but the land being a building site situate is a residential locality it was impossible that either the State Government or the Commissioner as the case may be could have on application of mind determined that the land was either waste or arable;

III. the urgency clause was therefore applied without application of mind and the petitioners were thereby deprived of their valuable right of being heard under Section 5A;

IV. the notification under Section 6(1) was also invalid as it was issued without complying with the provisions of Section 5A and therefore the declaration therein contained was not conclusive evidence that the land was needed for a public purpose;

V. that all proceedings consequent upon the impugned notifications under Sections 4 and 6 were also illegal and void and therefore the notice under Section 9 was bad;

VI. even if it were to be held that the urgency clause was rightly applied the notice under Section 9 and the action to take possession thereunder were bad as the notice was served on the petitioners on December 12 1960 and possession was sought to be taken from the petitioners on December 13 1960 i.e. before the expiry of fifteen days as required by Section 9;

VII. that the alleged purpose of slum clearance re-housing and roads was not bona fide because if the land was acquired for that purpose the respondents having applied the urgency clause as early as December 1957 they would not have waited so long as September 41958 when the notification under Section 6(1) was issued and until December 1960 when the notice under Section 9 for possession was served; and

VIII. that the only ground on which sanction to the petitioners building plans was withheld by the Corporation being that the land was being acquired if the notifications were held to be illegal the Corporation was bound in law to give Its sanction.

3. Though the petitioners challenged the notifications and the notice under Section 9 on these several grounds Mr. Nanavati for the petitioners mainly challenged the validity of the two notifications on the ground that there was no application of mind by the State Government as to the objective fact - whether the land was waste or arable land while issuing the notification under Section 4(1) and applying the urgency clause under Section 17(4) thereby dispensing with the enquiry under Section 5A and depriving the petitioners of their valuable right to be heard on their objections. It is clear that under Section 4(1) it is the appropriate Government, which has to be satisfied that the land in question is needed, or is likely to be needed for a public purpose and when so satisfied a notification under Section 4(1) can be issued. Under Section 5A any person interested in such land has within thirty days after the issue of the notification to lodge his objections to such proposed acquisition by a writing addressed to the Collector and the Collector then has to give such a person an opportunity of being heard and the Collector has after making such further enquiry if any as he thinks necessary to submit the case for the decision of the appropriate Government. The decision of the appropriate Government on such objections is final and therefore cannot be gone into by a Court of law. It is after the Government is so satisfied that a declaration is to be made under Section 6(1) and such a declaration under Section 6(3) is conclusive evidence that the land is needed for a public purpose or for a company as the case may be. Under Section 16 it is only after the Collector has made his award under Section 11 that he can take possession of the land free from all encumbrances. But Section 17(1) provides that in cases of urgency when the appropriate Government so directs the Collector may though an award is not made on the expiry of fifteen days from the publication of the notice under Section 9(1) take possession of any waste or arable land and such land would then vest in the Government. Under sub-section (4) of Section 17 in the case of any land to which in the opinion of the Government the provisions of Sub-sections (1) or (2) are applicable the appropriate Government may direct that Section 5A shall not apply and in that case it can make a declaration under Section 6 at any time after the notification under Section 4(1) has been issued. It is thus clear that under Section 17 and (4) before an appropriate Government can direct that Section 5A is to be dispensed with the Government has to be satisfied (1) that it is a case of urgency and (2) that the land in question is either waste or arable land. This is clear from the provisions of Sub-section (4) of Section 17 which provides that Section 5A can be dispensed with in cases to which Sub-sections (1) and (2) of Section 17 apply. Though the satisfaction under Section 17(1) and (4) is a subjective one and is not open to a challenge before a Court of law it must be the satisfaction of the appropriate Government and that satisfaction is in respect of an objective fact namely the existence of urgency and the fact that the land in question is either waste or arable land. It is obvious that such satisfaction can be only arrived at by the appropriate Government applying its mind and taking into account relevant considerations as to whether the land is waste or arable and without such application of mind there can clearly be no satisfaction which is a condition precedent to the dispensing of an enquiry and a report by the Collector under Section 5A.

4. The contention of Mr. Nanavati was that the State Government had not applied its mind when it applied the urgency clause at the time when the notification under Section 4(1) was issued and that such non-application of mind was clear from the fact that though the land is a building site situate within the municipal limits and in the midst of a residential locality and in respect of which N.A. use was permitted it was still declared to be waste or arable land. He contended that no authority could possibly have come to the conclusion that such a valuable piece of building site could be either waste or arable land and that that fact alone was sufficient to establish that this was a case of non-application of mind by the State Government.

5. The notification dated December 19, 1957 issued under Section 4(1) and of which a copy is annexed as Exhibit a to the petition states that whereas it appears to the Government of Bombay that the lands specified in the Schedule thereto were needed for a public purpose namely for slum clearance housing and road it is hereby notified under Section 4 that the said lands are needed for the aforesaid purpose. Clause (3) of the notification then states the Government of Bombay is further pleased to direct that under Sub-section (4) of Section 17 of the said Act as the acquisition of the said lands is required the necessary provisions of Section 5A of the said Act shall not apply.... This notification was issued as stated earlier in respect of 4231 square yards out of the said Survey No. 205/1. Though the notification speaks of the urgency it is silent about the State Government having been satisfied about the fact of the land being either waste or arable land to which only Sub-section (4) of Section 17 can apply. If the notification were to contain a statement just as it does contain a statement as to the urgency that the Government was satisfied also that the land was waste or arable land the satisfaction being subjective satisfaction of the Government such a question would not be justiciable and the Court therefore would be prevented from going into that question. At the same time it does not mean that because such a statement is not to be found in the notification it follows that the appropriate Government had not applied its mind. The appropriate Government would still be entitled to show otherwise than from the notification itself that it had applied its mind and was satisfied that the land was either waste or arable land and then had applied the urgency clause. The Government can do so by placing materials before the Court either through an affidavit of the Minister concerned or some officer who under the rules of business framed by the Governor for such Government would be entitled to arrive at the determination under Section 17. In the present case the notification being silent on this question it does not itself afford any evidence that the Government was satisfied about the fact that the land was either waste land or arable land and to which Section 17(4) applied. The respondents have no doubt filed a return in which it is stated that before the notification under Section 4(1) with urgency clause was issued the land was inspected by the then Special Acquisition Officer and that Officer had made his report and further that the Government had come to the conclusion that the land was waste or arable land. The learned Advocate General however was constrained to con cede that the affidavit being one by one R.M. Mehta who was not concerned at the material time with the acquisition in question and not by one Saswadkar who was then the Special Land Acquisition Officer he would not be in a position to rely on the affidavit. He also conceded that there was nothing to show in the return or otherwise that the said Saswadkar was not at present available to make an affidavit or that it was because the said Saswadkar was not so available that his affidavit had not been filed. That being the position there is no proper affidavit on record from which it would be possible for the respondents to show that the Government had applied its mind and then come to a satisfaction that the land was waste or arable land and to which Section 17(1) and (4) would apply. In view of these circumstances when the hearing of the petition commenced the learned Advocate General stated to us that a file not so far relied on had been traced and which contained correspondence and reports made by Saswadkar and applied that he should be allowed to have a further affidavit made by the said R.M. Mehta and annex thereto certain relevant documents from that file. We allowed time and gave permission to the Advocate General to have a supplemental affidavit made annexing thereto such of the documents as were thought proper and in fairness to the petitioners we also allowed Mr. Nanavati the opportunity to inspect the file and to have a further affidavit in rejoinder. The learned Advocate General though not relying on the affidavits either the original or the supplemental has however relied upon the documents now annexed to the supplemental affidavit and contended that those documents established that the land in question was inspected by the said Saswadkar that a report thereon was made by him and the Government had then applied its mind and was satisfied that the land in question was waste and/or arable land.

6. The first fact relied on by the learned Advocate General is the notification issued on December 19 1957 under Section 4(1) i.e. on the same day when the impugned notification dated December 19 1957 was issued and under which the Government declared the balance of survey No. 205/1 and part of survey No. 205/2 admeasuring in the aggregate 406 square yards and 6 feet as lands likely to be needed for a public purpose but in which the Government did not apply the urgency clause. He next relied on a letter of the said Saswadkar dated November 271957 to the Secretary to the Government Revenue Department in which it was stated that that officer had inspected the lands and that there was no objection to the acquisition thereof. The letter further stated: some of the lands are urgently required by the Municipal Corporation and as such those lands which are waste open and arable have been proposed to be notified under urgency clause and those required under ordinary clause have been required under ordinary clause under Section 4 of the Land Acquisition Act. The said Saswadkar has enclosed with the said letter draft notification in Form C for ordinary clause and in Forms E and F for lands to be notified under urgency clause to have them published in the Government Gazette. The learned Advocate General also relied on another letter of Saswadkar to the Secretary Revenue Department dated June 51958 in which it was stated that - The lands proposed to be notified finally under Section 6 with urgency clause are found to be waste and arable during the inspection of the lands on site. This letter was followed by another letter dated June 25, 1958 in which Saswadkar again wrote that as the lands which are proposed to notify (sic. to be notified) under urgency clause are found to be waste and without any super-structure it is requested that early action to publish the notification may please be taken. But before Saswadkar wrote these letters the Assistant Secretary Revenue Department by an endorsement dated March 27 1958had asked Saswadkar to furnish information on certain points set out therein namely (1) that the purpose of acquisition being slum clearance housing and road whether (a) the Corporation had prepared a housing scheme and (b) whether it would execute the housing scheme immediately and (2) that the words increasing accommodation for housing purposes in Bombay Act IV of 1948 being important when the housing scheme would be started and completed and whether such a scheme would satisfy the test of increasing accommodation for housing purposes. By his reply dated June 2 1958 Saswadkar informed the Government that a copy of the Government endorsement was sent to the third respondent Corporation and its reply pointed out that the Corporation had framed a housing project scheme approved by the Government and the Corporation intended to execute the same and that the requirement of increasing accommodation in Bombay Act IV of 1948 was satisfied as the Corporation was to substitute new houses for old unsanitary ones and a provision was made for housing persons. The Corporation also by its letter dated May 291958 to the Special Land Acquisition Officer stated that its scheme consisted of twenty-two projects providing for 8714 tenements at a cost of Rs. 3.26 crores and that that scheme had been sent to the Government of India that the Government of India had sanctioned the first seven projects and had agreed to grant a loan of about Rs. 67.0.0 and that the proposals made by it to the State Government were part of the said scheme and their execution was to be started as soon as possession was transferred to the Corporation. From this correspondence and the assertion therein made that the Land Acquisition Officer had inspected the site the learned Advocate General wanted us to infer that the Government had applied its mind and was satisfied that the land to which the urgency clause was applied was in fact waste or arable land and that that being so the Court was not entitled to go into that question.

7. It will however be seen that though the correspondence suggests that these lands were inspected by Saswadkar and it was then only that the urgency clause was applied to them the notification under Section 6 was not issued until June, 1958 and the notice for possession was not served until December, 1960. But since this would relate to urgency and the satisfaction of the Government relating to urgency we cannot enter into an enquiry about it as the notification dated December 19, 1957 does state that the Government was satisfied about the urgency.

8. As regards the satisfaction of the Government that the land was waste and/or arable the only material that has been brought on record is the correspondence and the notifications already referred to. It is true that in that correspondence Saswadkar has stated that he inspected the lands and had thereafter sent draft notifications applying the urgency clause to those lands including part of survey No. 205/1 which were found to be waste or arable lands. But even then the officer had not stated whether the lands were waste lands or arable lands or whether they were both and if they were both waste and arable lands what parts thereof were waste lands and what parts thereof were arable lands and lastly as to why though the land in question was a building site situate in a residential locality and in respect of which N.A. use was already permitted by the Government itself he considered the land to be waste or arable not being specific whether it was waste or arable or partly waste and partly arable The second thing noticeable is that though the Government was given an opportunity to file a supplemental affidavit and to bring on record further documents no material either documentary or otherwise has been produced to show that the officer relevant under the rules of business of the Government or the Minister concerned was satisfied on the letters or reports of Saswadkar about the objective fact that the land was either waste or arable or partly waste and partly arable. Ordinarily a building site would not be called waste or arable when it is situate not only within the municipal limits but also within a residential locality such as Paldi in Ahmedabad city. An arable land is a land which is fit for tillage and that expression is used usually to mean lands which are ploughed for raising ordinary annual crops such as rice jowar etc. But the land which is a building site within the municipal limits and situate in a developed part of the city cannot ordinarily be regarded as arable land. The expression waste land would on the other hand apply to lands which are desolate deserted uninhabited and uncultivated as a result of natural barrenness or rendered unfit for cultivation by natural ravages etc. The expression waste land as distinct from arable land would mean land which is unfit for cultivation by being marshy stony full of pits ditches etc. and so far as lands in urban area are concerned the expression waste land might possibly be used with reference to pieces of land which are desolate abandoned and not fit ordinarily for using as building sites. A building site which is quite suitable to be built upon cannot be regarded as a waste land simply because it is not put to any present use. It is its unfitness for use and not merely the fact that it is not put to any present use that must determine whether the land is waste land The land in question being a building site and situate within the municipal limits and also having been permitted by the Government itself for N.A. use it is difficult to appreciate how it could be characterised as waste or arable or both.

9. Though the question whether a particular land is waste or arable pertains to an objective fact under the provisions of Section 17 it is the satisfaction of the appropriate Government and not that of a Court of law that is relevant. But inasmuch as Sub-section (4) of Section 17 refers to the case of land to which Section 17(1) or (2) applies it refers to only waste or arable land which is urgently required. Consequently under Section 17(4) the dispensing of the enquiry under Section 5A thereby depriving the subject of a valuable right can be made not in all cases of urgency but only where the urgency is accompanied by the fact of the land being waste or arable land. Therefore the opinion which the Government has to come to relates to both urgency as well as to the nature and condition of the land Both these matters are however left by the legislature to the opinion of the appropriate Government and are matters to be suitably determined by that Government and the correctness of that opinion cannot raise a justiciable issue. Such a question arose in Navnitlal v. State of Bombay (1960) 62 B.L.R. 622 where the High Court of Bombay held that it is the Government which has to form the necessary opinion with regard to the objective fact whether the land is waste or arable on consideration of reasons which are relevant to its determination. If the Government forms such an opinion its correctness cannot be challenged and the sufficiency of the reasons on which the opinion is based cannot be questioned and the direction to dispense with the enquiry under Section 5A issued in pursuance of such an opinion cannot be assailed. If however the Government has not formed such an opinion or the opinion formed is based on reasons which are not relevant to the determination of the objective fact regarding which the opinion is formed in either of those two cases the direction can be successfully challenged as not being in accordance with law. In that case the entire notification issued under Section 4(1) was set aside on the ground that the opinion said to be formed by the Government was formed on consideration which were not relevant for its determination and therefore was no determination at all. In State of Bombay v. K.P. Krishnan and Ors. : (1960)IILLJ592SC though the Supreme Court was dealing with the provisions of Section 10(1) and Section 12(5) of the Industrial Disputes Act 1947 there are certain observations there which are of general importance and can be usefully cited in this connection. The Supreme Court there inter alia was concerned with the question whether a mandamus can issue in the case of a purely administrative order passed by Government empowered under the statute to make such an order and in connection with that question has observed at page 243 of the report as follows:

It is common ground that a writ of mandamus would lie against the Government if the order passed by it under Section 10(1) is for instance contrary to the provisions of Section 10(1)(a) to (d) in the matter of selecting the appropriate authority it is also common ground that in refusing to make a reference under Section 12(5) if Government does not record and communicate to the parties concerned its reasons therefore a writ of mandamus would lie Similarly it is not disputed that if a party can show that the refusal to refer a dispute is not bona fide or is based on a consideration of wholly irrelevant facts and circumstances a writ of mandamus would lie. The order passed by the Government under Section 12(5) may be an administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety adequacy or satisfactory character may not be open to judicial scrutiny in that sense it would be correct to say that the court hearing a petition for mandamus is not sitting in appeal over the decision of the Government nevertheless if the court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane then the court can issue and would be justified in issuing a writ of mandamus even in respect of such an administrative order.

10. Two questions then would arise for consideration. The first is can it be said that even in a case where the land in question is a building site situate within municipal limits and in a residential locality and the urgency clause is applied to such land the Government was satisfied on any relevant consideration that the land was waste and arable land? The second question would be that since it is the appropriate Government which has to arrive at such an opinion a report made by the acquisition officer to the Government to the effect that he had inspected the land and found it to be waste or arable is sufficient to conclude that the Government itself had arrived at the opinion that the land was in fact waste or arable and to which the provisions of Section 17(1) and (4) can be properly applied. As stated earlier where the land is a building site it would ordinarily be difficult to appreciate how it could in fact be characterised as either waste or arable. The mere fact that it has not so far been put to any present use and therefore is an open land does not make it waste land as held in Navnitlals case for the opinion to be arrived at relates to its inherent nature and condition. It would not also be arable land as that expression is used ordinarily to mean lands which are ploughed for raising ordinary annual crops such as rice jowar etc. and therefore the expression arable land also cannot be applied to a building site situate within the municipal limits. In such a case it would not be possible to urge that the Government had come to an opinion on considerations which are relevant considerations. As regards the second question it is the appropriate Government which under Section 17(1) and (4) has to come to an opinion that the land is either waste or arable. The mere fact that an officer appointed by it as the Special Land Acquisition Officer has made his report after having inspected the land would not be sufficient for it is the opinion of the appropriate Government itself that is relevant and even where the report is made by such an officer the Government might in appropriate cases - decline to accept the report or might require a better and a further enquiry and then might form its opinion. Prom the correspondence now produced and upon which the learned Advocate General relied it is clear that the Government did require certain clarifications and the Special Land Acquisition Officer had to give such clarifications but there is nothing on record to show either by way of an affidavit or otherwise that the Government was satisfied with those clarifications or the reports made by the officer and ultimately formed its opinion on the objective fact that the land was either waste or arable land. The mere fact that the Government issued the notification under Section 6 is not sufficient for such a notification might have been issued even without forming the opinion. The learned Advocate General contended however that the fact that notifications were issued for some lands with urgency clause and for others without it indicated that the Government had applied its mind for otherwise such a distinction could not have been made. But that distinction would not by itself conclusively show the application of mind by the Government for it might as well be that without forming its own opinion but following the suggestions made by the Special Land Acquisition Officer the Government might have simply issued the notifications some with and some without the urgency clause as required by the Special Land Acquisition Officer. Besides in the present case the Special Land Acquisition Officer who was said to have inspected the site and who was said to have found the land to be waste or arable has not made any affidavit and the affidavit made as stated earlier is by an officer who was not concerned with the acquisition proceedings in question. Furthermore the reports Exhibits 3, 4 and 5 to the supplemental affidavit and on which the learned Advocate General relied are reports made in 1958 and being of dates later than the date when the impugned notification dated December 19, 1957 to which the urgency clause was applied was issued do not help the respondents as the State Government had to form its opinion about the nature and the condition of the land in question at the time when the said impugned notification dated December 19 1957 was issued. The document on which the learned Advocate General therefore can rely is the letter dated November 27, 1957 Exhibit 2 to the supplemental affidavit that being the only document of a date prior to the impugned notification dated December 19, 1957 But that letter also merely states that Saswadkar had inspected the lands that there was no objection to the proposed acquisition that some of the lands were urgently required by the Corporation and that such lands out of those inspected by him which were waste open and arable were proposed to be notified under the urgency clause. In the first place this letter speaks about the several lands that were proposed to be notified but it does not specifically speak about survey No. 205/1 and whether that survey number was found by him to be waste or arable though it was a building site Secondly - no reply if there was any from the State Government has been produced which would show that the Government had on its own from the materials placed before it arrived at its opinion that survey No. 205/1 was waste or arable. On the other hand it would appear that the Government agreed to issue the notification in respect of survey No. 205/1 along with the other lands and to apply the urgency clause merely on the basis of the draft notifications with or without urgency clause as suggested by the Special Land Acquisition Officer mechanically and without applying its mind. The documents annexed to the supplemental affidavit rather than help the Government show on the contrary that there was no application of mind by the State Government. Therefore the documents produced by the first respondent along with the supplemental affidavit do not show ex facie that the State Government had come to its opinion that survey No. 205/1 was waste or arable land. At best these documents might suggest that the Special Land Acquisition Officer had inspected the lands in question along with other lands proposed to be acquired and as he stated in his letters had found these lands to be waste open and arable lands. But as already stated what is required by Section 17(1) and (4) is the opinion of the appropriate Government and not of the Special Land Acquisition Officer. That is the essential pre-requisite of a notification to which the urgency clause under Section 17 can be applied namely that the appropriate Government is of the opinion that the land in question is waste or arable.

11. The question then is whether the opinion of the Special Land Acquisition Officer can be said to be the opinion of the appropriate Government in this case the Government of Bombay. It was argued by the learned Advocate General at one stage that it would be sufficient compliance with the provisions of Section 17 if the Special Land Acquisition Officer has visited the site and is satisfied that the land in question is waste or arable and on his report the Secretary in charge of the Department sanctions the application of the urgency clause and the Government then issues the notification with urgency clause for it is not to be expected that the Secretary in charge should inspect each and every piece of land that is proposed to be acquired. But there is nothing to show in the affidavits or the documents produced in this case that the Secretary in charge of the Department had arrived at an opinion on materials placed before him that the land was waste or arable and to which the urgency clause could be appropriately applied. No such affidavit of the Secretary to the Department has been filed. There is also no material before us to show that the power to arrive at such an opinion or satisfaction was delegated by the Government to such a Secretary or to the Special Land Acquisition Officer. Under Article 154 of the Constitution - the executive power of the State vests in the Governor and such power is to be exercised by him either directly or though officers subordinate to him in accordance with the Constitution. Under Article 166 the Governor is empowered to frame rules for the more convenient transaction of the business of the Government of the State and for allocation among Ministers of such functions Ordinarily therefore the business of acquisition of lands would under such rules of business made by the Governor be entrusted to some Minister and it may be that such rules of business might provide for the delegation of such business or part of it and the powers of the Minister to some officer or officers subordinate to him. No such rules of business have been produced to show that the power under Section 17(1) and (4) to form an opinion as to whether the land in question was waste or arable and to which the urgency clause could apply was delegated by the Minister in charge to any particular officer and even if such power was delegated whether the rules of business permitted such delegation There being no such materials before us and there being also no affidavit by the Secretary concerned or any other relevant officer it is impossible to say that the opinion formed by the Special Land Acquisition Officer amounted to an opinion of the Government and that the prerequisite of Section 17 before the urgency clause could be applied was complied with. In these circumstances it is impossible to hold that the urgency clause was validly applied. In this view the declaration made under Section 6 with regard to 4231 square yards of survey No 205 dated August 5 1958 inasmuch as it was issued without following the procedure laid down in Section 5A and depriving thereby the petitioners of their right to be heard thereunder and the proceedings thereafter taken must fail and should be struck down.

12. The next question then is whether the notification in regard to these 4231 square yards out of survey No. 205/1 issued under Section 4(1) would fail in its entirety or only to the extent of the urgency clause applied thereunder. Mr. Nanavati contended that the whole of the notification under Section 4(1) must be struck down because (1) the notification was one and integral (2) that even if the urgency clause thereunder were to be taken away the petitioners would not be able to file their objections under Section 5A as the time of thirty days after the issue of the notification had lapsed and (3) that the right having already been deprived even if the State Government were to make a concession by giving an undertaking to hear the objections such a right having once gone cannot be revived. A more substantial objection to such a course being taken was that if the petitioners had been allowed the exercise of their right under Section 5A when the notification under Section 4(1) read with Section 17(4) was issued it might be that the locality having then been less developed than what it is now the petitioners might have been able to point out that there were other vacant plots in the surrounding areas more suitable for the alleged public purpose than their land but now that almost six years have gone by and the locality having since then been already developed it would no longer be possible for the petitioners to do so. An extension of time that might now be given to them for submitting their objections would not therefore mean the restoration of the right which they had in December 1957. These were the contentions urged on behalf of the petitioners for setting aside the entire notification and against severing the urgency clause therefrom and declaring that only to be invalid.

13. As regards the first contention namely that the notification under Section 4 with urgency clause applied to it under Section 17(4) was one integral document it is necessary to bear in mind that the Legislature has conferred two distinct powers under the Act to an appropriate Government one to issue the notification under Section 4 where it appears to it that the land in any locality is needed or is likely to be needed for a public purpose and the other where in the opinion of such Government Sub-sections (1) and (2) of Section 17 apply to direct that the provisions of Section 5A would not apply. Though both these sections fall in Part 11 of the Act they deal with different topics one with the publication of the preliminary notification and the other with taking of possession and the contents of the two sections show that the power under Section 17 need not be exercised at the very time when the power under Section 4(1) is exercised. Indeed Sub-section (4) of Section 17 in so many terms provides that a declaration thereunder can be made under Section 6 at any time after the publication of the notification under Section 4(1). It is also well to remember that whereas Section 4 was in the Act from the very inception Section 5A and subsection (4) of Section 17 were introduced in the Act for the first time by Amendment Act XXXVIII of 1923. The Legislature had originally passed Section 4 without enacting Section 5A and Section 17(4) of the Act. That fact is a further indication that the two powers are distinct and can be exercised distinctly of each other. It is obvious therefore that if the declaration under Section 17(4) of the Act were to be made subsequent to the publication of the notification under Section 4(1) it would be a separate act on the part of the Government and if the exercise of power under Section 17(4) had been made invalidly such a declaration of urgency could be separately dealt with and if necessary declared invalid and set aside. The question then is does it make any difference in principle if the urgency clause is inserted in the notification published under Section 4(1)? It is a well-settled rule of construction that where part of a statute or rule is void the rest of it will be enforced ii that is severable from what is invalid. In R.M.D. Chamarbaugwalla and Anr. v. Union of India : [1957]1SCR930 the Supreme Court summarising certain decisions of the American Courts laid down certain rules as to the doctrine of severability. In the light of that decision the tests that we have to apply while construing the impugned notification are the tests laid down in that decision and the tests relevant for out purpose would be (1) whether the Government would have issued the valid part of the notification if it had known that the urgency clause could not be validly inserted in that notification (2) whether the two parts of the impugned notification are so distinct and separate that after striking out that which is invalid what remains is in itself complete and capable of being worked and enforced or whether when the invalid part is separated from the rest the rest would be so thin and truncated as to be in substance different from what it was when published and (3) whether after expunging from the notification the invalid part what remains cannot be enforced without having to make alterations and modifications therein. Applying the doctrine of severability as laid down in Chamarbaugwallas case to the notification in question it is not possible to hold that the invalid part of it is so inextricably mixed up with the rest that it cannot be separated from the rest nor would it be possible to hold that the Government would not have issued the notification if it had realised that it could not validly apply the urgency clause or that the two parts of the notification form one single scheme which can be operative only as a whole or that if the urgency clause were to be taken out it would leave the rest of the notification so thin and truncated that it cannot be worked without modifications and alterations. In Sewpujanrai Indrasanarai Ltd. v. Collector of Customs and Ors. : 1958CriLJ1355 the Supreme Court applying these tests and the doctrine of severability separated the invalid part of the impugned order of the Collector of Customs and upheld the rest of the impugned order. Similarly in The Irish Presbyterian Mission Trust Association Anand v. The State of Gujarat and Ors. Special Civil Application No. 247 of 1960 decided by Desai S.T.C.J. and Bakshi J. on October 31 1960 (unreported) this Court accepted the plea on behalf of the State that the urgency clause there applied should be separated and struck down as invalid and held that the rest of the notification should not be struck down observing that in Navnitlal v. State of Bombay 62 B.L.R. 622 to the decision of which the learned Chief Justice was a party though the situation was similar the entire notification was struck down but that was because no such plea to sever the invalid part of the notification from the rest was made on behalf of the State. We may mention that the learned Advocate General has given in this case the same undertaking as was given in Special Civil Application No. 247 of 1960 namely that if the urgency clause in the notification in question is alone struck down and the rest of the notification is allowed to be enforced the State Government would permit the petitioners to lodge their objections and the Collector would hear and consider such objections although the period of thirty days has expired Mr. S.B. Vakil for the Corporation also has given an undertaking that the Corporation would not raise any objection to the Collector entertaining and hearing any such objections that the petitioners might submit under Section 5A. That being the position - we do not find any distinction in principle between this case and the case in Special Civil Application No. 247 of 1960.

14. But it was argued by Mr. Nanavati that the undertaking given by the learned Advocate General would not furnish a solution for by the lapse of thirty days the statutory right of the petitioners under Section 5A has already expired and a concession by way of an undertaking given by the State Government would at the most be a matter of grace and not an exercise of a statutory right. The contention in other words was that Section 5A prescribes a period of limitation and once that period has elapsed a citizen cannot enforce that right and the Government has no power to revive the right by such an undertaking. The question therefore is whether the provision for filing objections within thirty days after the issue of the notification is a provision of limitation like similar provisions in the Limitation Act. It is true that Section 5A provides that a person interested in any land notified under Section 4(1) may within thirty days from the issue of the notification object to the acquisition and if he fails to do so the Collector may refuse to hear his objections and thus such a person might lose his right of being heard But the provision as to thirty days is not and cannot be compared with similar provisions in the Limitation Act so that the Collector would not be able to consider the objections inspite of the undertaking given by the Government that the Collector will hear the petitioners. The function of the Collector under Section 5A as has been held by this Court is an administrative and not a judicial function and his function is not to decide any rights as between the person objecting to the acquisition and the State Government but only to make a report not only after hearing the objections of such a person but after such further enquiry as the Collector thinks necessary. That report is only intended to help the Government to come to its decision under Section 6(1) that the land in question is needed for a public purpose or for a company as the case may be. It is therefore not possible to say that the provision of thirty days in Section 5A is not capable of being waived by an undertaking such as the one the learned Advocate General and the Corporation have given. This is also clear from the rules made under the Act which under Section 55 have the force of law. The Bombay Rules applicable in this case were published by a notification dated October 4 1926 and were framed for the guidance of officers dealing with objections lodged under Section 5A. Rule 2 of these rules provides that to be admissible, an objection must be provided 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 may be fixed by the Collector and the objections must be of the kind specified therein. Rule 5 lays down that after completing the record of evidence the Collector has to submit his report and his recommendation as to each objection whether inadmissible or admissible for the orders of Government under Section 5A(2) of the Act. These rules thus show that the report of the Collector is only in the nature of a recommendation and such recommendation may be accepted or not accepted by the Government and is in no way an adjudication by the Collector of the rights or the contentions of the parties Rule 2 also gives discretion to the Collector to extend the time of receiving objections for though thirty days are prescribed the Collector has the power to receive them either within thirty days or within such period as may be fixed by him. That being the position the undertaking given by the Government and such undertaking being also supplemented by the undertaking given by the acquiring body would have the effect of extending the time of receiving objections and in a case such as the instant case where an undertaking is given there is no reason to suppose that the Government would not instruct its officers to hear the objections and then make a report for its own guidance. The contention therefore that the expiry of thirty days has resulted in the deprivation of a statutory right which cannot be revived by the party who has a right to refuse to accept them on the ground of the expiry of the prescribed time cannot have any merit. It is true that since as much as six years have passed by the conditions in the locality might have changed and possibly the petitioners might not now be in a position to point out other lands more suitable for the purpose for which the acquisition is sought to be made. But then it is equally possible that the Government would well have decided to prefer the land in question and the fact that the Government had in fact chosen this land at the time when the notifications were issued would seem to indicate that after seeing the other lands which might have then been available the Government might still have preferred the land in question for the purpose for which the Corporation wanted the land. It is also not as if this was the only piece of land which was sought to be acquired. If that were so it might perhaps be possible to attach some importance to this contention In any event part of this notification being severable and the rest of the notification being operative and validly enforceable it would not be legitimate to declare the valid part of the notification invalid only on the ground that changes might have taken place in the other lands in the locality or on a mere possibility that if the petitioners had an opportunity of pointing out other undeveloped lands the Government would have preferred them as against the petitioners lands. The petitioners lands also being open lands it is equally possible that the owners of the other lands might have objected to the acquisition of their lands on similar grounds. The contention is urged on a ground which cannot be accepted for we are thereby asked to predicate that the Government would have accepted other lands rather than the petitioners lands. But that pre-supposes that there were other lands with the same advantages and situate in identical conditions and of the same nature as the petitioners land. Such a presupposition would in the absence of evidence lend us into an enquiry of a conjectural and speculative character which in our opinion - no Court would undertake.

15. We are therefore of the view that the impugned notification falls within the doctrine of serverability as summarised in Chamarbaugwallas case and we would therefore be justified in striking off the invalid part 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 which in our view is valid and enforceable. Order accordingly.

16. We further direct that the Officer appointed by the Government will institute an enquiry under Section 5A 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 pay to the petitioners the costs of this petition.


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