Skip to content


Hitendrakumar Thakordas Raval and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR83
AppellantHitendrakumar Thakordas Raval and ors.
RespondentState of Gujarat and ors.
Cases ReferredTilokchand Motichand v. H.B. Munshi (supra). In
Excerpt:
.....and it is the contention of the petitioners that their lands are situated in a well-developed area. vaidya, land officer of the housing board, has filed his affidavit in reply, being the affidavit dated 26th june 1979. in paragraph 4 of the affidavit, the contention of the officer is that the averments of the petitioners are very vague, the petitioners having not clearly stated at what distance the societies mentioned in the paragraphs are situated and whether there are any buildings constructed by them and if so in what year they were constructed. under the circumstances, though ordinarily delay of such period might be a fatal bar, on the peculiar facts of this case we hold that the discretion would be better exercised in favour of the petitioners rather than against them so far as..........divan, c.j.1. the petitioners herein have challenged notifications under sections 4 and 6 of the land acquisition act, 1894, by which certain has along with the lands of the petitioners were sought to be acquired the purposes of the gujarat housing board, which is the third respondent in this special civil application. the petitioners are owners of lands bearing survey nos. 586/2 admeasuring 20639 square metres situated at adajan in surat district. these lands are within the limits of the surat municipal corporation. with the development of the surrounding areas, several buildings have come up in the vicinity of the lands of the petitioners. many co-operative societies, such as kalpna, riverside, ravi park, sneb, smruti, sangna, gandhinagar, society for the staff of bank of india,.....
Judgment:

B.J. Divan, C.J.

1. The petitioners herein have challenged notifications under Sections 4 and 6 of the Land Acquisition Act, 1894, by which certain has along with the lands of the petitioners were sought to be acquired the purposes of the Gujarat Housing Board, which is the third respondent in this special civil application. The petitioners are owners of lands bearing survey Nos. 586/2 admeasuring 20639 square metres situated at Adajan in Surat District. These lands are within the limits of the Surat Municipal Corporation. With the development of the surrounding areas, several buildings have come up in the vicinity of the lands of the petitioners. Many co-operative societies, such as Kalpna, Riverside, Ravi Park, Sneb, Smruti, Sangna, Gandhinagar, Society for the staff of Bank of India, Vandna, Anand Kunj, Samarpan, etc, have constructed buildings in the late 1960s in the vicinity of the petitioners' lands and it is the contention of the petitioners that their lands are situated in a well-developed area. The notification under Section 4 was issued on July 2, 1971 and the lands proposed to be acquired comprised lands from survey Nos. 586/1, 586/2, 587, 588/2, 588/3, 586/2 being the land belonging to the petitioners. The public purpose which was set out in that notification was 'For construction of houses for the Gujarat Housing Board under the Development Scheme'. According to the petitioners, on July 2, 1971, the State Government also issued another notification under Section 4 of the Land Acquisition Act declaring its intention to acquire lands bearing survey Nos. 536, 537/Paiki, 538, 539, 540/1, 540/2 and 540/3 for a public purpose, alleging the public purpose to be for the construction of houses for the Gujarat Housing Board under the Development scheme. It is the petitioners' case that their lands bearing survey No. 586/2 are just adjacent to the lands bearing survey Nos. 540/1, 540/2 and 540/3. The lands mentioned in both the notifications under Section 4 form one compact block of land. It is the case of the petitioners that in respect of the lands of the petitioners, notification under Section 6 of the Land Acquisition Act was issued on June 4, 1973, whereas in respect of the lands bearing survey Nos. 536 to 543/3 referred to in the other notification under Section 4 a notification under Section 6 was issued on May 19, 1972. Notices under Sections 9(3) and 9 (4) were served upon the petitioners on August 8, 1973 and in pursuance of those notices, the petitioners filed their objections before the second respondent and thereafter the petitioners did not hear anything from the Land Acquisition Officer in respect of these land acquisition proceedings.

2. It is the case of the petitioners that under Town Planning Scheme No. 10 of the Surat Municipal Corporation, their lands which were valued Haters. 19/- per square metre before the re-constitution, are being valued Hat Rs. 34/- per square metre as a result of the betterment brought about by the town planning scheme. It is the case of the petitioners that because of the town planning scheme, the identity of the petitioners' lands has to tally changed and the petitioners would be allotted Final Plot No. 102 admeasuring 15275 square metres in place of their original area of 20639 square metres. The petitioners contend that a portion of their lands has been taken away by the Surat Municipal Corporation under the town planning scheme as a plot reserved for the purpose of sub-centre and also for the purpose of roads. The petitioners further contend that because of the provisions of the Urban Land (Ceiling And Regulation) Act, 1976 which came into force on February 17, 1976, the petitioners are required to file a statement before the competent authority under Section 6 of the Urban Land Ceiling Act, and under Section 21 of that Act, if a person holding any vacant land in excess of the ceiling limit declares within the prescribed time, in the prescribed form, in the prescribed manner, before the specified authority that such land would be utilised for construction of dwelling units for the accommodation of the weaker Sections of the society in accordance with any scheme approved by the specified authority, then the provisions of the Urban Land Ceiling Act would not apply and the excess land will not be; treated as excess. The petitioners have formulated plans for the purpose of putting up houses for the accommodation of the weaker Sections of the society and thus to save their land from the operation of the Urban Land Ceiling Act. It is the petitioners' case that their lands are situated in a developing area and construction work was going on in that area. The petitioners rely upon the contents of letter dated February 1, 1966 addressed by the Government of Gujarat to the Housing Commissioner, Gujarat Housing Board, Ahmedabad, in connection with guidelines to be followed for acquiring lands for the purposes of the Gujarat Housing Board. This letter of February 1, 1966 was subsequently explained in a circular dated July 24, 1967. These two documents, of February 1, 1966 and July 24, 1967 are Annexures C and D to the petition, and it is the contention of the petitioners that Government have sought to acquire the petitioners' lands in violation of the guidelines laid down in the letter of February 1, 1966. It is the case of the petitioners that owners of survey Nos. 540/1, 540/2 and 540/3, whose lands were sought to be acquired also for the purpose of the Gujarat Housing Board, filed an application in this Court, being Special Civil Application No. 21 of 1973 and in those proceedings, the special civil application was allowed and it was held that the acquisition of survey Nos. 540/1, 540/2 and 54C/3 was illegal and void as the Government had followed a pick and choose method in respect of the said lands and in that case, rule was made absolute. It may be pointed out that the decision in that case where the special civil application was allowed, is reported in Maganbhai Vanarashibhai Paiel v. State of Gujarat 16 G.L.R. 829. The petitioners contend that the reasoning in Maganbhafs case applies to the facts of the present case and therefore, the petitioners have challenged the validity of the notifications issued under Sections 4 and 6 of the Land Acquisition Act in so far as they affect tin petitioners' lands.

3. The principal contention of Miss V.P. Shah on behalf of the petitioners is that the lands in question belonging to the petitioners are in a developing area and that several buildings have come up in the surrounding areas. Many co-operative societies such as Kalpna, Riverside, Ravi Park, Sneh, Smruti, Sangna, Gandhinagar, Society for the State Bank of India, Vandna, Anand Kunj, Samarpan, etc. have come up in lift vicinity of the petitioners' property. There is no reply by the Government to this averment in the petition and on behalf of the Gujarat Housing Board, K.R. Vaidya, Land Officer of the Housing Board, has filed his affidavit in reply, being the affidavit dated 26th June 1979. In paragraph 4 of the affidavit, the contention of the officer is that the averments of the petitioners are very vague, the petitioners having not clearly stated at what distance the societies mentioned in the paragraphs are situated and whether there are any buildings constructed by them and if so in what year they were constructed. Unless the petitioners furnish detailed particulars, according to this deponent, it is not possible to give a detailed reply regarding these allegations. In paragraph 3 of the petition, in terms the petitioners have stated that lands bearing survey Nos. 536, 537/Paiki, 538, 539, 540/1, 540/2 and 540/3 are adjacent to the lands of the petitioners. In paragraph 5 of the affidavit-in-reply, the deponent K.R. Vaidya states: 'They are adjacent to their land' meaning thereby that the lands of the petitioners are adjacent to lands bearing survey Nos. 540/1, 540/2 and 541/3. Barring this statement, there is nothing to deny the contention of the petitioners that the lands of the petitioner are situated in a developing and developed area. In the affidavit-in-reply, K.R. Vaidya merely does not admit that the lands under acquisition are developed lands.

4. The two letters, particularly the letter of February 1, 1966 from the Government of Gujarat to the Housing Commissioner, a copy of the same being Annexure C to the petition, goes to show that Government was of the opinion that urban land situated in a locality where development activity has started should not be acquired for the purposes of the Gujarat Housing Board, and the clarification by the circular of July 24, 1967, being Annexure D to the petitioner, does not in any way alter the position so far as lands situated in developing or developed area are concerned. The clear guideline laid down by Government in the letter of February 1, 1966 is that lands in developing area or lands in the vicinity of which development activity had started or development started should not be acquired for the purposes of the Housing Board.

5. In Maganbhai Vanarashibhai Patel v. State of Gujarat (supra), a Division Bench of this High Court consisting of J.B. Mehta and A.D. Desai JJ. was concerned with the land of survey Nos. 540/1, 540/2 and 540/3. In paragraph 5 at page 843 of the report, A. D. Desai J. speaking for the Division Bench in Maganbhai Vanarashibhai's case has referred to this letter of February 1, 1955 and also to the clarification by the circular of July 24, 1967. At page 845 of the report, A.D. Desai J. observed:

The Government has adopted the policy not to acquire land on which there are residential premises and further not to acquire lands surrounding such developing area.

The petitioner before the Division Bench had stated that surrounding the land under acquisition, several buildings were constructed before the notification of acquisition was issued. Co-operative societies, namely Kalpna, Riverside, Ravi Park, Sneh, Smruti, Sangna, Gandhinagar, Society K for the staff of Bank of India, Vandna, Anand Kunj, Samarpan, etc. had constructed buildings in the last four or five years before the year 1972 it is thus clear that the lands under acquisition at the date of their acquisition were situated in developed area and according to the declared policy of Government the same could not be acquired for the purpose of the Housing Board. The Government sought to support the acquisition of the petitioners' lands on the ground that as the lands were surrounding the several building of co-operative societies, the said lands were more suitable for the construction of houses by the Housing Board. The Government has taken a policy decision not to acquire the lands on which constructions had been raised for personal use or the lands surrounding whereof construction activities were carried on by individuals or by cooperative societies for the purpose of erecting residential premises. Government decision was not to acquire within the area of quarter or half a mile of such developed area. Once the Government lays down a policy, it has to follow it uniformly. Government cannot resort to such policy in certain cases where it likes and depart from the said policy as it chooses. Having laid down a definite policy the Government cannot follow the irrational method of pick and choose. Such actions of pick and choose will be arbitrary and violative of Article 14 of the Constitution and have to be struck down as being contrary to the constitutional provisions. Furthermore, it is also a declared policy of Government not to acquire land surrounding the land on which residential constructions are raised either by individuals or by cooperative societies. According to the said policy, no land in the area of quarter or half a mile of such area should be acquired. The case of the petitioners is that their survey numbers are situated in such a developed area. The Government admitted that the petitioners' lands are surrounded by several buildings constructed by co-operative housing societies specified in the petition filed by the petitioner. In the result, the Division Bench struck down the acquisition inter alia on the ground that as the lands were situated in developing or developed area, the same could not be acquired for the purpose of the Gujarat Housing Board and the notification was struck down inter alia on that ground.

6. In our opinion, there is no way in which the decision on the facts of the present case can be distinguished from the facts in Maganbhai Vanarashibhai 's case.

7. Mr. Shah for the Gujarat Housing Board contended that there was gross delay on the part of the petitioners. The present petition has been filed in 1979 whereas the notifications under Sections 4 and 6 were issued as far back as 1971 and 1973 respectively. Mr. Shah relied upon the observations of the Supreme Court in Tilokchand Motichand v. H.B. Munshi : [1969]2SCR824 . He contends that according to the Supreme Court, though the provisions of the Indian Limitation Act do not apply to special civil applications or writ petitions, yet, if the suit would be barred if it had to be filed for obtaining relief, a writ petition in connection therewith should also be dismissed on the ground of laches and delay. In the case of Tilokchand Motichand v. H.B. Munshi (supra), principles were laid down by majority of Judges consisting of Hidayatullah C.J. and Milter and Bachawat JJ. Hidayatullah C.J. preferred the view of Mitter and Bachawat JJ. to the view of Sikri and Hegde JJ. In paragraph 11 of his judgment, Hidayatullah C.J. observed:

Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose.

Therefore, even the majority of the learned Judges in Tilokchand's case specifically pointed out that it was a matter of discretion of the Court and not a rigid, hard and fast rule and moreover that, in a suitable case, the Court may entertain a petition even if there is considerable delay in filing the writ petition. In the instant case, the notification under Section 4 was issued in 1971, and the notification under Section 6 was issued in 1973 but the award has not yet been made and the land acquisition proceeding have not gone on beyond the stage of notice under Section 9 of the Land Acquisition Act. In our opinion, once we come across a situation where the other adjoining land acquisition notifications under Sections 4 and 6 have been struck down because the lands were in developing or developed area and acquisition was sought to be made in violation of the declared policy regarding acquisition of lands for the Gujarat Housing Board, it would be working grave injustice to the petitioners if their lauds similarly situated and adjacent to the lands of the petitioners in Maganbhai Vanarashibhai's case are acquired. Under the circumstances, though ordinarily delay of such period might be a fatal bar, on the peculiar facts of this case we hold that the discretion would be better exercised in favour of the petitioners rather than against them so far as the factor of delay is concerned. The decision in Aflatoon and Ors. v. Lt. Governor of Delhi : [1975]1SCR802 , on which Mr. Shah relies, indicates that the question of delay was considered in the light of the observations in Tilokchand Motichand v. H.B. Munshi (supra). In our opinion, in view what has been stated by Hidayatullah C.J. in the passage which we have extracted above, it is clear that in an appropriate case, even where there is delay, relief can be granted by the High Court in exercise of its jurisdiction, under Article 226 of the Constitution.

8. Under these circumstances, this special civil application is allowed and the notifications under Sections 4 and 6 of the Land Acquisition Act in so far as they affect the lands of the petitioners are quashed and set aside as they are violative of the guidelines and the policy of the Government set out in the letter of February 1, 1966, Annexure C to the petition.

Respondents Nos. 1 and 2 are prohibited from proceeding further with the land acquisition proceedings in pursuance of the said notifications under Sections 4 and 6 and are directed to drop the proceedings in respect of the lands of the petitioners. The respondents will pay the costs of this special civil application to the petitioners. Rule is made absolute accordingly.


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