SCA/4060/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4060 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge? ========================================================= NIRANJANBHAI PRABHUBHAI CHAUHAN & 5 - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR DIPAK C RAVAL for Petitioner(s) : 1 - 6. MR DIPEN DESAI, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 04/03/2008 ORAL JUDGMENT SCA/4060/2008 2/12 JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate Writ, direction and /or order to quash and set aside the impugned notice dated 13.02.2008 (Annexure-I). It is also further prayed for an appropriate Writ, direction and / or order to quash and set aside the Notifications dated 23.03.2000 and 23.02.2001 (Annexure – 'D' and 'E') i.e. Notifications under Sections 4 and 6 of the Land Acquisition Act (hereinafter referred to as 'the Act') and whole proceedings of acquisition of land of the petitioners. 2. Few facts necessary for determination of the present Special Civil Application in nutshell are as under: That the Municipal Corporation of Surat, send proposal for acquiring land in question by following procedure under Section 78 of the Bombay Provisional Municipal Corporation Act and passed resolution on 26.11.1986. Resolution and proposal of SCA/4060/2008 3/12 JUDGMENT the Corporation came to be accepted by the State Government on 10.09.1987 and thereafter, proceedings under the Act came to be initiated and Notification under Section 4 of the Act was issued on 18.07.1989. Thereafter, Notification under Section 6 of the Act came to be published on 19.06.1991. It is the case on behalf of the petitioners that thereafter as the land was not needed for the purpose for which it was sought to be acquired, the Collector, Surat passed an order that land is not required and vide communication dated 04.06.1991 a proposal was send. It is the case on behalf of the petitioners that thereafter land acquisition proceedings came to be dropped and award was not declared within stipulated time. That thereafter, Municipal Commissioner again sent proposal on 18.09.1997 to the Collector and requested him to acquire the said land for the school and thereafter, Notification under Section 4 of the Act came to be published / issued for the acquisition of the land in question by the petitioners for the purpose of school. Said Notification came to be issued on 23.03.2000 and Notification under Section 6 of the Act came to be issued on 23.02.2001. That the SCA/4060/2008 4/12 JUDGMENT award was published on 31.12.2002 by the Land Acquisition Officer. That thereafter, Land Acquisition Officer issued notice upon the petitioners dated 10.03.2003 calling upon the petitioners to hand over the possession and receive the compensation and the said notice was under Section 12(2) of the Act. That the petitioners preferred Special Civil Application No.3066 of 2003 challenging the entire land acquisition proceedings as well as notice dated 10.03.2003 contending inter- alia that before issuance of Notifications under Section 4 and 6 of the Act, procedure which is required to be followed under the Act has not been followed. Notices were not put up at any convenient public place as mandated by the Act and that notice dated 10.03.2003 was without following any procedure and /or giving opportunity to the petitioners. That the Division Bench of this Court vide judgment and order dated 09.02.2004 partly allowed the said Special Civil Application quashing and setting aside the notice dated 10.03.2003 and remanded the matter to the Land Acquisition Officer directing Land Acquisition Officer to initiate the proceedings from SCA/4060/2008 5/12 JUDGMENT the stage of issuance of notice dated 10.03.2003 (notice under Section 12(2) of the Act). It also appears that the judgment and order dated 09.02.2004 passed by the Division Bench of this Court in Special Civil Application No.3066 of 2003 was challenged by the petitioners before the Hon'ble Supreme Court by way of S.L.P. and the said S.L.P. has been dismissed and the judgment and order passed by the Division Bench has been confirmed. It appears that thereafter the Special Land Acquisition Officer issued fresh notice. The petitioners preferred Review Application in Special Civil Application No.3066 of 2003 to review the judgment and order dated 09.02.2004 passed in Special Civil Application No.3066 of 2003 raising number of submissions and contentions challenging the acquisition proceedings and said Review Application is also dismissed. That thereafter, Special Land Acquisition Officer has issued impugned notice dated 13.02.2008 calling upon the petitioners to hand over the possession of the land in question and informed the petitioners that if the petitioners do not hand over the possession of the land in question, the authority will take possession on 05.03.2008. Being SCA/4060/2008 6/12 JUDGMENT aggrieved and dissatisfied with the impugned notice dated 13.02.2008 the petitioners have preferred the present petition under Article 226 of the Constitution of India for the aforesaid reliefs. 3. Mr.Dipak Raval, learned Advocate appearing on behalf of the petitioners has submitted that considering the subsequent development i.e. modification in the development plan and land in question is put in residential zone, the purpose for which the land in question has been acquired i.e. for the purpose of school has ceased to exist and therefore, acquisition proceedings require to be quashed and set aside. It is also submitted that even otherwise mandatory proceedings as required to be followed before issuance of Notifications under Sections 4 and 6 have not been followed and therefore, it is requested to allow the present Special Civil Application. 4. Mr.Raval, learned Advocate appearing on behalf of the petitioners has relied upon the decision of the Bombay High Court in the case of The SCA/4060/2008 7/12 JUDGMENT Industrial Development and Investment Co.Pvt. Ltd. And Anr. V/s. State of Maharashtra and Ors. reported in AIR 1989 Bombay 156 in support of his prayer to quash and set aside acquisition proceedings and also in support of his submission that while considering the question of delay and laches with respect to challenging acquisition proceedings of the land, the Court has to consider whether by reason of lapse of time equity has arisen or not. Therefore, it is requested to entertain the present petition and the petition may not be dismissed on the ground of delay and laches. 5. The petition is opposed by Mr.Dipen Desai, learned Assistant Government Pleader. He has submitted that in view of judgment and order dated 09.02.2004 passed by the Division Bench of this Court in Special Civil Application No.3066 of 2003 which is confirmed by the Hon'ble Supreme Court, and even thereafter dismissal of Review Application, now it is not open for the petitioners to challenge the acquisition proceedings once challenge to acquisition proceedings has failed. It is also submitted that SCA/4060/2008 8/12 JUDGMENT even otherwise Notifications under Sections 4 and 6 of the Act dated 23.03.2000 and 23.02.2001 respectively are challenged by the petitioners in the present petition in the year 2008 after a period of almost 7 to 8 years, therefore, also on the ground of delay and laches, present petition is required to be dismissed. It is submitted that impugned notice dated 13.02.2008 is consequential notice for handing over the possession and/ or on failure to hand over the possession, to take possession by the authority. Under the circumstances, it is requested to dismiss the present petition. 6. Heard the learned Advocates appearing on behalf of the respective parties. 7. It is required to be noted that in the present petition, the petitioners have prayed for an appropriate order to quash and set aside Notifications under Sections 4 and 6 of the Act dated 23.03.2000 and 23.02.2001 in the year 2008 i.e. after a period of 7 to 8 years and there is no explanation for such a long delay. Therefore, as such present SCA/4060/2008 9/12 JUDGMENT petition is required to be dismissed on the ground of delay and laches. 8. Even otherwise, in view of the judgment and order dated 09.02.2004 passed by the Division Bench of this Court in Special Civil Application No.3066 of 2003 whereby the petitioners challenged the very acquisition proceedings and having failed to get acquisition proceedings quashed and set aside and as the said judgment and order passed by the Division Bench is confirmed by the Hon'ble Supreme Court, it is not open for the petitioners now to challenge the acquisition proceedings again. It is also required to be noted that even the very petitioners thereafter, preferred Review Application before the Division Bench and sought to challenge the acquisition proceedings on the very grounds stated in the present petition and it is reported that the said Review Application has been dismissed. In view of the above, it is not open for the petitioners to challenge the acquisition proceedings again. The petitioners have challenged acquisition proceedings in view of the subsequent development in the year SCA/4060/2008 10/12 JUDGMENT 2003 and 2004 i.e. modification of the development plan and land in question was included in residential zone. However, it is to be noted that what is required to be considered is the position prevailing at the relevant time when the acquisition proceedings were initiated and concluded and any subsequent development after acquisition proceedings are completed, it cannot make acquisition proceedings invalid. At the relevant time when acquisition proceedings came to be completed in the year 2002 i.e. declaration of the award by the Special Land Acquisition Officer, land in question was reserved for school under the development plan. Under the circumstances also the prayer of the petitioners to quash and set aside the acquisition proceedings cannot be accepted. It also appears that even aforesaid submission was made by the petitioners in Special Civil Application No.3066 of 2003 and the petitioners have failed to quash and set aside the acquisition on that ground. 9. Now so far as the decision relied upon by the learned Advocate appearing on behalf of the SCA/4060/2008 11/12 JUDGMENT petitioners in the case of The Industrial Development and Investment Co.Pvt. Ltd. And Anr. V/s. State of Maharashtra and Ors.(supra) is concerned, said decision will not be of any assistance to the petitioners as the facts in both petitions differ. In the case before the Bombay High Court challenge to the acquisition was before the land acquisition proceedings were concluded and even prior to declaration of the award. In the present case as stated above even Special Civil Application challenging acquisition proceedings on the very ground has been dismissed. 10. Now so far as challenge to the impugned notice dated 13.02.2008 is concerned, it is required to be noted that said notice is consequential notice calling upon the petitioners to hand over the possession of the land in question which is already acquired for public purpose and even the said notice is issued pursuant to the order dated 09.02.2004 passed by the Division Bench of this Court in Special Civil Application No.3066 of 2003. While remanding the matter to the Land Acquisition Officer, the SCA/4060/2008 12/12 JUDGMENT Division Bench directed to initiate proceedings from the stage of issuance of notice dated 10.03.2003 and that is exactly what is done by the Land Acquisition Officer. Under the circumstances, challenge to the impugned notice dated 13.02.2008 also fails. 11. For the reasons stated above, the petition fails and same deserves dismissal and accordingly it is dismissed. [J.R.Vora,J.] [M.R.Shah,J.] satish