Gujarat High Court Case Information System Print SCA/5755/2011 11/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5755 of 2011 For Approval and Signature: HONOURABLE MR.JUSTICE [ENTITY] Sd/- HONOURABLE MR.JUSTICE [ENTITY] Sd/- 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? YES 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5. Whether it is to be circulated to the civil judge ? NO [ENTITY] & 3 - Petitioners Versus [ENTITY] THROUGH PRINCIPAL SECRETARY & 4 - Respondents Appearance : MR [ENTITY] WITH MR [ENTITY] for Petitioners. MR [ENTITY], AGP for Respondent No. 1. None for Respondent Nos.2 - 5. CORAM : HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 02/05/2011 ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE [ENTITY]) The short question that arises for consideration of this Court in this petition is whether the notification issued under [SECTION] of the [ACT] can be challenged by a person ? If so, on what grounds ?
The petitioners are resident of village Gajan, Tal. Modasa, District Sabarkantha. It is claimed that they have their agricultural and cultivable lands in the aforesaid village.
The petitioners have filed this writ petition challenging the notification dated 20.04.2010 issued by the State Government under [SECTION] invoking urgency powers under [SECTION] of the [ACT] (for short 'the Act') on the ground that the respondents are illegally constructing Toll Collection Center which are also called Toll Plaza on the lands of the petitioners and other villagers. The site of construction had been changed. The petitioners' request and representations to shift the Toll Plaza to any other land had been ignored by the respondents. Due to illegal and unconstitutional action of the respondents, the agricultural and cultivable lands is being acquired by the respondents which is the source of livelihood of the petitioners. The request for shifting the Toll Plaza to Government waste land had not been considered by the respondents.
We have heard Mr. [ENTITY], learned counsel holding brief of Mr. [ENTITY] for the petitioners and Mr. [ENTITY], learned Assistant Government Pleader for the respondents.
Counsel for the petitioners has urged that on 30.07.2008, notification was issued under [SECTION] and [SECTION] of the Act for construction of four lane road from Godhra to Modasa for which the and of villagers were acquired. No land was acquired at that time for construction of Toll Plaza.
By the impugned notification dated 20.04.2010 issued under [SECTION] and [SECTION] of the Act, lands of the petitioners and other villagers have been acquired for the construction of Toll Plaza or Toll Collection Center. The acquisition proceedings are illegal as the petitioners have filed their representations and objections on 22.06.2008, 23.10.2008, 23.12.2009, 26.01.2010 and 26.03.2010 prior to the issuance of notification under [SECTION] of the Act. After the notification under [SECTION], representations were made on 25.05.2010, 27.05.2010, 28.05.2010, 31.05.2010 and several other representations mentioned in paragraphs 2.10 to 2.21 of the writ petition. It has been urged that various representations have been made for shifting the Toll Plaza to some other land or on Government waste land. But the respondents have not decided the objections filed by the petitioners. The site for construction of Toll Plaza had been changed by the respondents. Therefore, the action of the respondents is malafide and arbitrary and based on extraneous considerations. Hence, the petitioners have prayed for quashing of the Notification dated 20.04.2010 issued under [SECTION] of the Act.
Mr. [ENTITY], learned Assistant Government Pleader has supported the notification dated 20.04.2010 on the ground that lands have been acquired by the State Government by invoking urgency clause under [SECTION] of the Act for construction of Toll Plaza and the writ petition filed by the petitioners challenging the notification issued under [SECTION] of the Act is not maintainable.
The question is whether the petitioners can challenge the notification issued under [SECTION] of the Act by invoking urgency clause under [SECTION] of the Act ? It is well settled that where urgency clause is invoked, inquiry under [SECTION] of the Act is dispensed with, therefore, objections or representations of the petitioners could not be decided by the respondents. The question whether petitioners could challenge the notification under [SECTION] is concerned, any person aggrieved by the notification could challenge it. The petitioners are persons aggrieved as their land is being taken away in the acquisition proceedings. The petitioners are persons interested as their land have been notified u/[SECTION] of the Act, therefore, they have locus standi to challenge the notification issued u/[SECTION] by the State Government. They could challenge the validity of the notification under [SECTION] of the [ACT]. [SECTION] of the Act reads as under :-
(b) The expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land;"
The definition of the expression "person interested" is inclusive and is not exhaustive. The definition of the expression "interested persons" is in two parts. The first part includes all persons claiming an interest in the compensation to be made on account of the acquisition of land under the Act. The second part contains a deeming provision and declares that a person shall be deemed to be interested in land if he is interested in an easement affecting the land.
In view of the above discussion, we are of the considered opinion that a writ petition filed by a 'person interested' challenging notification under [SECTION] of the Act is maintainable.
The next question is that on what grounds the notification under [SECTION] of the Act can be challenged in a writ petition under [SECTION] of the [ACT] ? Before deciding this question, we propose to refer to the decisions of the Apex Court.
The Apex Court in The [PRECEDENT], in paragraph 26 has held as under :-
"26. Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context 'in good faith' means 'for legitimate reasons'. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides. In such a situation there is no question of any personal ill-will or motive."
The Apex Court in [PRECEDENT], in paragraph 4 has held as under :-
"It is well settled that the notification issued under [SECTION] of the Act normally cannot be quashed unless there are exceptional circumstances, like the one where the notification issued under [SECTION] of the Act suffers from incurable irregularity, such as, total vagueness and in regard to the property to be acquired and in regard to the public purpose."
The Apex Court in another decision in [PRECEDENT], in paragraph 72 has held as under :-
"72. Ambiguity, indefiniteness and vagueness of public purpose are usually the grounds on which notifications under [SECTION] of the [ACT] are assailed."
In the facts of the instant case, we do not find that any foundation has been laid in the writ petition for challenging the notification under [SECTION] of the Act on the ground that it is ambiguous or indefinite or vague nor it has been pointed out that the acquisition is contrary to public purpose and suffers from incurable irregularity or defect. For the aforesaid reasons, in absence of any of the aforesaid conditions being fulfilled, it is not open to the petitioners to challenge the notification issued under [SECTION] of the Act. We are of the considered opinion that the petitioners have to conclusively prove that at the time of issuance of the notification under [SECTION] neither there was any public purpose in contemplation nor any need or plan for its expeditious execution. They had to lay down the foundation in the writ petition that the notification suffered from incurable irregularity, vagueness of public purpose, indefiniteness, we do not find any pleading with regard to abovementioned conditions. In absence of facts and evidence in proof of such facts pleaded in the writ petition, the petitioners are not entitled to any relief. (See [PRECEDENT]).
The next argument of the learned counsel for the petitioners is that their agricultural lands which are source of their livelihood is being taken away for the construction of Toll Plaza. The earlier site of Toll Plaza had been shifted. He urged that Toll Plaza can be shifted on Government land or some other land but it should not be constructed on the agricultural and cultivable lands of the petitioners. The Apex Court had an occasion to consider this question in [PRECEDENT], wherein, the case before the Apex Court, was, acquisition of land for constructing Yamuna Expressway. The Apex Court held that individual has to sacrifice his land for public good. Paragraphs 34 of the aforesaid decision is extracted below :-
"34. The High Court has refuted all these contentions by giving good reasons. We will not go into these individual cases once the High Court has decided not to entertain these pleas and, in our opinion, correctly. After all, this was an acquisition for building up a highway and the abovementioned Writ Petitions pertained to the land required for interchange. It is obvious that the alignment of the highway cannot be changed, as its design has been prepared after consideration of so many factors by the experts in building the road. Its direction or alignment, therefore, cannot be changed, with the result, the area which is required for interchange, also cannot be changed. This is a typical example of the individual having to sacrifice his land for the public good. There can be no dispute that this road would add to the betterment of the citizens of the East Yamuna area in particular and Uttar Pradesh in general. This is apart from the fact that the majority of the persons whose lands have been acquired, have either not objected to it or have accepted the compensation without any demur. It will, therefore, not be possible for us to go into these individual grievances, which have been rightly rejected by the High Court."
From the facts of the case, it is clear that four lane road had been constructed. The Toll Collection Center or Toll Plaza has to be constructed for realizing toll tax from the vehicles using the four lane road for recovering the amount on the construction of road by the State Government. The newly constructed road is for the betterment of the area. The change of site of Toll Plaza and the site on which Toll Plaza has to be designed and constructed is decided by the experts in building the road. Its direction or alignment cannot be changed by the Court. If some scheme is prepared for which the land is to be acquired for public purpose, individual interests would always be affected. Public purpose is more important than private interest. Private or individual interest has to give way to public purpose.
For the aforesaid reasons, we do not find any merit in this petition. This writ petition fails and is accordingly dismissed. Sd/-
[[ENTITY], J.] Sd/-
[[ENTITY], J.] Savariya