SCA/3639/2008 1/30 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3639 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 ? NO 2 To be referred to the Reporter or not ? NO 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 ========================================================= KANCHANBEN NARSINH & 13 - Petitioners Versus STATE OF GUJARAT & 2 - Respondents ========================================================= Appearance : MR NILESH PANDYA for Petitioners : 1 - 14. MR DIPEN DESAI, ASSTT.GOVERNMENT PLEADER for Respondents : 1-2. MR PRASHANT G DESAI for Respondent No. 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH SCA/3639/2008 2/30 JUDGMENT Date : 14/11/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Rule. Shri Dipen Desai, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondents No.1 and 2 and Shri Prashant G.Desai, learned advocate waives service of notice of Rule on behalf of respondent No.3-Surat Municipal Corporation 2. By way of this petition under Article 226 of the Constitution of India, petitioners-original owners and occupiers of original Survey No.30/2 and 30/3 of Village Karanj, Taluka Choryasi, District Surat, have prayed for an appropriate writ, order or direction, quashing and setting aside the notification issued by the State Government and the Special Land Acquisition Officer, Surat, dated 30.1.2008 issued under Section 17(4) of the Land Acquisition Act issued for acquisition of the lands in question for sewage treatment plant of Surat Municipal Corporation invoking urgency clause and dispensing with inquiry under Section 5(A) of the Land Acquisition Act. SCA/3639/2008 3/30 JUDGMENT 3. Petitioners No.1 to 7 are the original owners and occupiers of original Survey No.30/2 and 30/3 of Village Karanj, Taluka Choryasi, District Surat, total ad-measuring 20740 sq.mtrs., and 1 Hectare 1 Are, and petitioners No. 8 to 14 are the owners and original occupiers of Survey No.29/2 of Village Karanj, Taluka Choryasi, District Surat, ad-measuring 3 Hectare 13 Are and 32 sq.mtrs. That the respondents herein more particularly respondents No.1 and 2 have issued the notification dated 30.1.2008 which has been published in Local Newspaper “Sandesh” on 8.2.008 issued under Section 4 of the Land Acquisition Act (hereinafter referred to as “the Act”) with respect to the land in question and other lands invoking urgency clause under Section 17(4) of the Act and consequently dispensing with the procedure under Section 5(A) of the Act. The said notification is issued for acquisition of the lands in question for the expansion/sewage treatment plant of Surat Municipal Corporation. 3.1 Being aggrieved and dissatisfied with the aforesaid notification dated 30.1.2008, the respective petitioners-original owners of original lands bearing Survey No.30/2 and 29/2 have SCA/3639/2008 4/30 JUDGMENT preferred the present petition under Article 226 of the Constitution of India. 3.2 It is the case on behalf of the petitioners that Surat Municipal Corporation has introduced the Town Planning Scheme for the development of Surat City under the provisions of the Gujarat Town Planning Act, and in the said Town Planning Scheme, the petitioners are allotted Final Plot No.78 total ad-measuring 36057 sq.mtrs., along with co-owners in the Town Planning Scheme No.3 (Karanj) for lands bearing Revenue Survey No.30, 30/1 part, 30/2 part and 30/3 part and were allotted Final Plot No.1 of Original Plot No.22A, and collectively allotted Final Plot No.78 total ad-measuring 36057 sq.mtrs. That according to the petitioners the respondent No.3 Corporation had acquired the land ad-measuring 1232 sq.mtrs., original Survey No.30/2 and 202 sq.mtrs of Survey No.30/3 for the public purpose of drainage disposal of sewage treatment plant in the city of Surat. The said acquisition was initiated by the authorities by issuance of a notification under Section 4 of the Act dated 29.11.1994 and final award came to be passed under Section 11 of the Act dated 9.10.1997. It is the case on behalf of the petitioners that at the SCA/3639/2008 5/30 JUDGMENT time of preparing the Town Planning Scheme No.3 land bearing Final Plot No.78 and other Final Plots were reserved for sewage treatment works for Surat Municipal Corporation. However, subsequently in the revised Town Planning Scheme, all the aforesaid lands inclusive of Final Plot No.78 was ordered to be deleted from the said reservation and the same was designated for residential use. That the same happened vide notification issued on 4.9.2004. According to the petitioners that initially Final Plot No.78 was reserved for sewage treatment plant from the revised draft plant, the said reservation has been removed from the remaining lands of the petitioners being Final Plot No.78. It is the case on behalf of the petitioners that thereafter, as the petitioners wanted to develop the aforesaid lands, they submitted an application for development permission under the provisions of Bombay Provincial Municipal Corporation Act as well as the Gujarat Town Planning & Urban Development Act, 1976. However, the petitioners' plan were not sanctioned by the Corporation and therefore the petitioners preferred Special Civil Applications No.21908 of 2005 and 21909 of 2005 before this Court for an appropriate writ directing the respondent No.3 Surat Municipal Corporation to sanction the development plan put up by the SCA/3639/2008 6/30 JUDGMENT petitioners for residential purpose. It is the case on behalf of the petitioners that in the said Special Civil Applications, the Surat Municipal Corporation filed an affidavit-in-reply submitting that the land in question is sought to be acquired under the provisions of the Land Acquisition Act, and a proposal is pending and a resolution is already passed by the Corporation that the land in question is required for the sewage treatment plant. It is submitted that in spite of that the learned Single Judge of this Court directed the Corporation to sanction the development plan, and in spite of the same, the Corporation has not sanctioned the plan. That in the meantime the impugned notification has been issued under Section 4 read with Section 17(4) of the Act dated 30.1.2008 published in the Local Newspaper dated 8.2.2008 mentioning that the petitioners' land required urgently for the purpose of sewage treatment plant for Surat Municipal Corporation for Surat City and the procedure under Section 5(A) of the Act has been dispensed with. 3.3 Being aggrieved and dissatisfied with the same, the petitioners preferred present petition under Article 226 of the Constitution of India. SCA/3639/2008 7/30 JUDGMENT 4. Shri Nilesh Pandya, learned advocate appearing on behalf of the petitioners has vehemently submitted that the impugned notification issued by the respondents No.1 and 2 under Section 4 read with Section 17(4) of the Act invoking urgency clause and dispensing with the inquiry under Section 5(A) of the Act is absolutely illegal, arbitrary which requires to be quashed and set aside. 4.1 Shri Nilesh Pandya, learned advocate appearing on behalf of the petitioners has submitted that earlier the very land in question was reserved for the sewage treatment plant of the Surat Municipal Corporation, however, the same came to be removed and it was designated for residential use in the year 2004 and thereafter the land in question is sought to be acquired for the very purpose and therefore now invoking the urgency clause and dispensing with the inquiry under Section 5(A) of the Act is absolutely illegal and arbitrary. It is further submitted that, in the facts and circumstances of the case, the urgency clause is not warranted. It is further submitted that right of hearing as contemplated under Section 5(A) of the Act is a valuable right in SCA/3639/2008 8/30 JUDGMENT favour of the original land owners whose lands are sought to be acquired and which cannot be taken away lightly. It is also further submitted that, before deciding the urgency clause, no such opinion is formed by the State Government as contemplated under Section 17(4) of the Act, and therefore, the invocation of urgency clause under Section 17(4) of the Act has been vitiated. It is submitted that therefore requirement of Section 17(4) of the Act has not been complied with. 4.2 Shri Nilesh Pandya, learned advocate appearing on behalf of the petitioners has submitted that Section 17(4) of the Act clearly provides that the appropriate government is required to form the opinion for the urgently required of land, and therefore when the valuable right of hearing under Section 5(A) of the Act is already taken away by the said clause, therefore it was the duty on the part of the Government to consider the case and form the opinion whether the land is required urgently or not. It is submitted that the Government has not at all formed any opinion to acquire the land in question urgently. It is submitted that, originally in the year 1990, a proposal was made by the Corporation to acquire the land for sewage treatment plant under SCA/3639/2008 9/30 JUDGMENT Section 78 of the BPMC Act which has again requested by the Corporation to the Collector on 15.10.2005. Therefore it is submitted that earlier proposal for acquiring the land in question for the sewage purpose under Section 78 of the BPMC Act was made in the year 1990 which was again requested by the Corporation after the period of 15 years and therefore there is no question of acquiring the land under the urgency clause. 4.3 Shri Nilesh Pandya, learned advocate appearing on behalf of the petitioners has further submitted that the respondent No.3 Corporation had earlier reserved the land in question for sewage treatment plant under the Town Planning Scheme No.3, and the same was accordingly reserved for that purpose, but subsequently the said reservation was dropped under the Town Planning Scheme in the year 2004, and the land in question was again put in residential zone, under the circumstances, there is no question of acquiring the land in question by applying urgency clause under Section 17(4) of the Act. It is also further submitted that even the issuance of notification under Section 4 read with Section 17(4) of the Act is also against the order passed by this Court in Special Civil Applications No.21908 of 2005 and 21909 of 2005 and/or the SCA/3639/2008 10/30 JUDGMENT same is against the true spirit of the order passed by this Court in aforesaid Special Civil Applications. 4.4 It is also further submitted that the State Government has not applied the mind for issuing such notification for urgently required the land. It is also further submitted that as the petitioners were pressurizing the Town Planning Officer to sanction the plan and grant the development permission to the petitioners and therefore with a malafide intention the Town Planning Officer has pressurised the Government to issue such urgency clause and therefore the same deserves to be quashed and set aside. 4.5 It is further submitted that even the proposal to acquire the very land in question was in the year 2005 and much time has passed in correspondence between the Collector, Surat Municipal Corporation and the Government and therefore the impugned notification invoking the urgency clause and also the notification under Section 4 of the Act deserves to be quashed and set aside. It is also further submitted that no technical data has been furnished so as to form the opinion with respect to the requirement to acquire SCA/3639/2008 11/30 JUDGMENT the land in question and invoke the urgency clause. 4.6 Shri Nilesh Pandya, learned advocate appearing on behalf of the petitioners-original land owners has relied upon the following decisions in support of his prayer to quash and set aside the impugned notification under Section 4 read with Section 17(4) of the Act. (i) HIRALAL HARJIVANDAS AND OTHERS VS. STATE OF GUJARAT AND OTHERS reported in 5 GLR 924 (para 11). (ii) UNION OF INDIA AND OTHERS VS. DEEPAK BHARDWAJ AND OTHERS reported in AIR 2004 SC 3289 (paras 5, 6 and 9). (iii) UNION OF INDIA AND OTHERS VS. KRISHAN LAL ARNEJA AND OTHERS reported in AIR 2004 SC 3582 (para 17). (iv) UNION OF INDIA AND OTHERS VS. MUKESH HANS reported in AIR 2004 SC 4307 (paras 32, 33 and 36). (v) HINDUSTAN PETROLEUM CORPORATION LTD. VS. DARIUS SHAPUR CHENAI AND OTHERS reported in 2005 AIR SCW 4796 (paras 9, 10, 12, 20 and 21). SCA/3639/2008 12/30 JUDGMENT 4.7 Making the above submissions and relying upon the aforesaid decisions, it is requested to allow the present Special Civil Application and to quash and set aside the impugned notification. 5. Petition is opposed by Shri Dipen Desai, learned AGP appearing on behalf of respondents No.1 and 2 and Shri Prashant G.Desai, learned advocate appearing on behalf of respondent No.3 – Surat Municipal Corporation. 5.1 Shri Dipen Desai, learned AGP appearing on behalf of respondents No.1 and 2 has submitted that the land in question is sought to be acquired for the purpose of sewage treatment plant. It is submitted that it is true that earlier the land bearing Survey No.30/2 was reserved for public purpose of sewage treatment plant. However, vide notification dated 2.9.2004 issued by Urban Development and Urban Housing Department of the State Government, the said reservation was lifted. However after all other lands which were acquired earlier for the sewage treatment plant were put to use and thereafter also the Surat Municipal Corporation required the land in question as the land earlier acquired were not found to be enough and sufficient and therefore SCA/3639/2008 13/30 JUDGMENT proposal was sent by the acquiring body i.e. Surat Municipal Corporation to the Collector on 14.10.2005 inter-alia stating the project of sewage treatment plant has been started for the land, which was earlier acquired. However, without the present land being acquired the sewage treatment plant would not be able to function at its fullest capacity and therefore the Corporation requested to acquire the land in question and other lands situated at Village Karanj by invoking urgency clause. It is further submitted that the said proposal was thereafter considered by the Collector and the office of the Special Land Acquisition Officer, and the Special Land Acquisition Officer proposed to the State Government to acquire the land in question by invoking urgency clause. It is submitted that on receipt of the said proposal, the State Government vide letter dated 7.3.2007 sought for reasons for invoking urgency clause and also sought for the certificate of the Urban Housing and Urban Development Department for invocation of urgency clause. Not only that but the State Government has also sought for clarification as to how the remaining part of land bearing Survey No.30/2 which was acquired earlier has been put to use, and whether once the reservation has been dropped and the land is placed in residential zone, the same land can again be SCA/3639/2008 14/30 JUDGMENT acquired for the purpose of sewage treatment plant. 5.2 It is further submitted by Shri Dipen Desai, learned AGP that the said letter was sent to the acquiring body through the Special Land Acquisition Officer and the acquiring body i.e. Surat Municipal Corporation through the Director of Planning replied to the State Government inter-alia stating that the land bearing Survey No.30/2 is required for sewage treatment plant and that the land which was earlier acquired for the same survey number is in fact utilised and used for sewage treatment plant and construction is going on. It was also clarified that only because the land is de-reserved, that would not come in the way of the State Government to acquire the land for public purpose. It is submitted that thereafter the Urban Development and Urban Housing Department considered the said proposal and having satisfied that the land is required urgently gave a certificate that the land is required urgently and acquisition proceedings should be initiated by invoking urgency clause. It is submitted that thereafter the Special Land Acquisition Officer again requested the State Government to acquire the land in question by invoking urgency clause and again the State Government sought for further SCA/3639/2008 15/30 JUDGMENT information from the Special Land Acquisition Officer regarding the manner in which the land which was earlier acquired has been put to use and same was replied to by the Commissioner, Surat Municipal Corporation and requested the State Government to acquire the land in question and invoke urgency clause since there was great urgency for acquiring the land in question. That thereafter there were various correspondences, and thereafter on being primarily satisfied that the land is urgently required to be acquired, the file was placed before the concerned Minister for approval of the decision. However, by the time, the file could be considered by the Hon'ble Minister, the assembly elections were declared, and therefore, code of conduct had come into force and therefore it was decided to postpone the issuance of notification till the elections are held. It is submitted that thereafter after completion of the election, immediately the file was placed before the concerned Minister and thereafter a decision was taken that having satisfied that the land in question was required urgently for the complete operation and fulfillment of sewage treatment plant and therefore the said decision was approved on 22.1.2008 and immediately thereafter the impugned notification under Section 4 of the Act has been issued. Therefore it is submitted that the State SCA/3639/2008 16/30 JUDGMENT Government has recorded proper and reasonable subjective satisfaction regarding the urgency clause and there was enough material before the State Government to come to the conclusion that the land is required on urgent basis and that urgency clause is required to be invoked. 5.3 It is submitted by Shri Dipen Desai, learned AGP appearing on behalf of the respondents No.1 and 2 that an opinion had been formed to invoke urgency clause considering the material on record which was time and again sought by the State Government before satisfying itself with respect to the requirement of land as well as invocation of the urgency clause. Therefore it is submitted that once there is a subjective satisfaction by the State Government of invoking the urgency clause and the notification under Section 4 read with Section 17(4) of the Act has been issued the same is not required to be quashed and set aside by this Court. 6. Shri Prashant G.Desai, learned advocate appearing on behalf of the respondent No.3-Surat Municipal Corporation, while opposing the present Special Civil Application has submitted that, the land in question is urgently required for the expansion and/or SCA/3639/2008 17/30 JUDGMENT of the full use of sewage treatment plant. It is further submitted that right from very beginning the Surat Municipal Corporation needed the land for sewage treatment plant, however only part of the land in question came to be acquired. It is submitted that the part of the land bearing Survey No.30/2 which was acquired was fully utilised by the Surat Municipal Corporation for sewage treatment plant and looking to the increase in the population in the area of Surat City, a further land was urgently required to increase the capacity of the sewage treatment plant and therefore a proposal was submitted to the Collector and the State Government to acquire the land in question as well as to invoke the urgency clause. It is submitted that the lands have been acquired at different phases looking to the need and the capacity of sewage treatment plant at the relevant time and same has been increased from time to time and the lands have been acquired in different phases. It is submitted that merely because earlier the land in question was put into reservation for sewage treatment plant and the said reservation was subsequently removed and when subsequently the land in question is needed for further expansion and/or for full use of sewage treatment plant, it cannot be said that the urgency has been lost and/or the land in question is not SCA/3639/2008 18/30 JUDGMENT required and/or not needed at all. It is submitted that even subsequently again the land in question is put into reservation of sewage treatment plant/works for Surat Municipal Corporation in the revised sanctioned development draft plan. It is submitted that merely because the time has been consumed in correspondence by the State Government before satisfying itself with respect to the requirement of the land and the need of the land urgently, the urgency will not be lost and thereatfer having satisfied that the land in question is needed and that too urgency for sewage treatment plant and that too considering the location of the land which is just adjacent to the existing sewage treatment plant and more particularly when part of the land bearing Survey No.30/2 was already acquired for sewage treatment plant/works, and considering the above, when the notification under Section 4 read with Section 17(4) of the Act has been issued invoking the urgency clause, it is requested to dismiss the present Special Civil Application. 6.1 It is also further submitted by Shri Prashant G.Desai, learned advocate appearing on behalf of the respondent No.3-Surat Municipal Corporation that the Corporation is in dire need of the SCA/3639/2008 19/30 JUDGMENT land for public purpose for establishing the sewage disposal plant and/or to expand the sewage disposal plant which is already present for the area of Karanj, Nana Varachha etc., and the population is increasing day by day in the said area. It is also further submitted that after the earlier land was acquired for sewage treatment plant, there is a considerable increase in the population and the population is further likely to be increased and the population is increasing by more than double and therefore the Surat Municipal Corporation is in dire need of sewage disposal plant in the said area. It is further submitted that the land in question have been acquired in phased wise looking to the need and increase in the population. It is submitted that in the first phase the sewage treatment plant was constructed in the year 1998-99 having 60 MLD capacity and thereafter the capacity for the sewage treatment plant has been increased by 40 MLD in the year 2002-03, and thus at present the capacity of the sewage treatment plant is 100 MLD, and considering increase in the population after in the year 2001, the capacity of the sewage treatment plant is required to be extended by further 40 MLD, and even considering the population in the year 2021, the capacity of the sewage treatment plant required would be 176 MLD. Thus at SCA/3639/2008 20/30 JUDGMENT present the capacity of the sewage treatment plant is further required to be increased by 45 MLD urgently and thereafter by further 76 MLD. Thus, considering the population in 2021, the total requirement of capacity of the sewage treatment plant would be 176 MLD, out of which 45 MLD capacity is to be increased immediately. Therefore it is submitted that the Surat Municipal Corporation is in need of at least 20 Hectares of the land minimum. Under the circumstances, and considering the above when the State Government having satisfied that the requirement of land under Section 4 read with Section 17(4) of the Act is required urgently, it is requested to dismiss the present petition in the larger public interest. 7. Shri Dipen Desai, learned AGP appearing on behalf of respondents No.1 and 2 and Shri Prashant G.Desai, learned advocate appearing on behalf of respondent No.3-Surat Municipal Corporation have relied upon the decision of the Hon'ble Supreme Court in the case of CHAMELI SINGH VS. STATE OF UTTAR PRADESH reported in (1996) 2 SCC 549 and in the case of FIRST LAND ACQUISITION COLLECTOR VS. NIRODHI PRAKASH GANGOLI reported in (2002) 4 SCC 160 in support of their prayer to dismiss the present SCA/3639/2008 21/30 JUDGMENT petition. 8. Heard the learned advocates appearing on behalf of the respective parties. 9. At the outset