IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5617 of 1986 with SPECIAL CIVIL APPLICATION No 5618 of 1986 with SPECIAL CIVIL APPLICATION NO. 708 OF 1988 For Approval and Signature: Hon'ble MR.JUSTICE K.G.BALAKRISHNAN and MR.JUSTICE J.M.PANCHAL ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes 3. Whether Their Lordships wish to see the fair copy of the judgement? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- LATABEN S SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5617 of 1986 MR SK JHAVERI for KS JHAVERI for Petitioners MR MA BUKHARI, A.G.P. for Respondents No. 1 to 3 MR JD AJMERA for Respondent No. 4 2. Special Civil Application No 5618 of 1986 MR SK JHAVERI for KS JHAVERI for Petitioners MR MA BUKHARI, A.G.P. for Respondents No. 1 to 3 MR JD AJMERA for Respondent No. 4 3. Special Civil Application no. 708 of 1988 MR SK JHAVERI for KS JHAVERI for petitioners MR MA BUKHARI, A.G.P. for respondents no.1 to 3 MR JD AJMERA for respondent no.4. -------------------------------------------------------------- CORAM : MR.JUSTICE K.G.BALAKRISHNAN and MR.JUSTICE J.M.PANCHAL Date of decision: 06/02/98 ORAL JUDGEMENT (Per : Panchal,J.):- By means of filing these petitions under Article 226 of the Constitution, the petitioners have prayed to quash and set aside notification dated March 18, 1983 issued by the State of Gujarat under section 4(1) of the Land Acquisition Act, 1894 ("Act" for short) in relation to land admeasuring 10117 sq.ft. out of survey no. 1125 situated in Palanpur City, District : Banaskantha for construction of Telephone Exchange and Staff Quarters. The petitioners have also urged to quash and set aside declaration dated March 25, 1985 made by the Government of Gujarat under section 6 of the Act to the effect that lands specified therein are needed at the public expenses for the purpose of construction of Telephone Exchange and staff quarters in Palanpur City. The petitioners have further petitioned to quash and set aside notice dated June 10, 1986 issued by the competent authority under section 9 of the Act calling upon the interested parties to declare nature/kind of interest they have in the lands mentioned in declaration made under section 6 of the Act and for claiming compensation pertaining to damages therefor. The petitioners have besides pressed to restrain the respondents from proceeding further consequent upon notification issued under section 4 of the Act as well as declaration made under section 6 of the Act and notice issued under section 9 of the Act and also from taking possession of the lands of the petitioners covered by declaration made under section 6 of the Act. As common questions of facts and law are raised in the present three petitions, we propose to dispose of them by this common judgment. 2. By Government of India Notification, Ministry of Food, Agriculture Community Development and Co.operation No.4/1/65m Gen.II, dated 23.4.1966 issued under Clause (1) of Article 258 of the Constitution of India, the functions of the Central Government under the Land Acquisition Act, 1894 (1 of 1894) in relation to the acquisition of land for the purpose of the Union within the territory of the State of Gujarat have been entrusted to the Government of Gujarat. It appeared to the Government of Gujarat that land approximately admeasuring 10117 sq.mts. out of survey no.1125 ,situated in Palanpur city, District : Banaskantha was likely to be needed for public purpose i.e. for construction of Telephone Exchange and staff quarters. The Government of Gujarat, therefore,issued notification under section 4(1) of the Act making it public that land approximately admeasuring 10117 sq.mts. out of survey no.1125 situated in Palanpur city was likely to be needed for the purpose of construction of Telephone Exchange and staff quarters. The Government of Gujarat had appointed Deputy Collector Palanpur to perform the functions of the Collector under the Act with reference to the lands in question. The notification issued by the Government of Gujarat under section 4(1) of the Act is produced by the petitioners at Annexure-A to the petition. On publication of notification as required by section 4(1) of the Act, the petitioners of Special Civil Application no. 5618/86 and Special Civil Application no. 708/88 lodged objections with the Deputy Collector, Palanpur. The Deputy Collector,Palanpur considered the objections and other relevant materials and thereafter submitted report as contemplated by sub-section (2) of Section 5-A of the Act to the Government. After considering the report of Deputy Collector, Government of Gujarat made declaration under section 6 of the Act to the effect that the lands specified therein are needed for the public purpose of construction of Telephone Exchange and staff quarters. The declaration made by the Government of Gujarat under section 6 of the Act is produced by the petitioners at Annexure-B to the petition. The Deputy Collector,Palanpur issued notice dated June 10, 1986 to the interested persons calling upon them to declare the nature/kind of interest they have in the lands regarding which declaration under section 6 was made and for claiming compensation pertaining to the damages therefor. The notice issued by the competent authority is produced by the petitioners at Annexure-C to the petition. The petitioners have averred that acquisition of lands as per notification Exhs. A and B is for the purpose of Telephone Exchange and staff quarters for their employees which is the purpose of Union of India and as notification contemplated by section 4 of the Act is not issued by the Central Government, the same is liable to be set aside. It is pleaded that no notification under Article 258(1) of the Constitution could have been issued for entrustment to the State Government of the duties and functions of the Central Government under the Land Acquisition Act, 1894 in view of the fact that Parliament by legislation requires those functions to be carried out by the Central Government and, therefore, notification produced at Exh.A and declaration produced at Exh.B are invalid. What is claimed in the petition is that without authority of law as contemplated by Article 300A of the Constitution, properties of the petitioners are sought to be deprived and, therefore, the reliefs claimed in the petitions should be granted. It is asserted that though approximate area of the land required was specified in the notification issued under section 4 of the Act, while making declaration under section 6 of the Act, the Government of Gujarat had included additional area of the land which was not covered by the notification issued under section 4 of the Act and without issuance of fresh notification under section 4 of the Act, parts of the land not covered by notification under section 4(1)of the Act could have been acquired by making declaration under section 6 of the Act. It is claimed in the petition that notification issued under section 4 of the Act is too vague and, therefore, entire acquisition proceedings are bad in law. It is also averred in the petition that the then Collector had personal bias against the petitioners, as order passed by him under section 65 of the Bombay Land Revenue Code was set aside by the Government in revision at the instance of the petitioners and as powers to acquire lands have been exercised malafide, the petitions should be accepted. It is pleaded that survey no.600 situated in the City of Palanpur as well as other lands were available for construction of Telephone Exchange and staff quarters, but as alternative suitable lands are not acquired, the notification issued under section 4 as well as declaration made under section 6 should be set aside. It is claimed in the petition that on earlier two occasions Government had turned down proposal to acquire part of survey no.1125 situated in Palanpur City for this very purpose and as survey no.600 which is similarly situated is not acquired the Government of Gujarat has adopted policy of pick and choose and therefore, the impugned notification should be struck down. It is also highlighted in the petition that the purpose for which acquisition is made, no longer survives and, therefore, the impugned notifications should be quashed. Under the circumstances, the petitioners have filed present petitionsand claimed reliefs to which reference is made earlier. 3. Mr. M.F.Parmar, Deputy Collector, Palanpur has filed affidavit-in-reply controverting the averments made in the petition. The petitioner no.2 of Special Civil Application no. 5617/86 has filed affidavit-in-rejoinder reiterating what is stated in the petition and has also got filed affidavit of one Babubhai M.Prajapati in support of averments made in the affidavit in rejoinder. Mr. M.S.Patel, Deputy Collector,Palanpur has filed further affidavit-in-reply on September 10, 1996. Similarly, Mr. A.K.Patel, S.D.E. (Admn.) has filed affidavit-in-reply on behalf of respondent no.4 mentioning that the purpose for which lands are acquired, subsists even today and the lands are needed for Telephone Exchange as well as staff quarters. 4. Mr. S.K. Zaveri,learned Counsel for the petitioners submitted that acquisition of lands as per notification Exh.A and declaration Exh.B is for the purpose of Telephone Exchange and staff quarters for their employees which is a purpose of Union of India and, therefore, no notification as contemplated by section 4 of the Act having been issued by the Central Government, the impugned notification should be set aside. It was pleaded that Article 258(1) of the Constitution cannot be brought in aid for the purpose of entrustment to the State Government the duties and functions of the Central Government under the Land Acquisition Act, 1894 in view of the fact that Parliament by legislation requires those functions to be performed by the Central Government and, therefore, notification produced at Annexure-A to the petition and declaration produced at Annexure-B to the petition are invalid and beyond the scope and authority of the State Government. What was stressed by the learned Counsel for the petitioners was that Article 300A of the Constitution provides that no person shall be deprived of his property save by authority of law and as notification issued under Article 258(1) of the Constitution cannot be regarded as authority of law, prayers made in the petition should be granted. In support of this plea, learned Counsel placed reliance on the decisions rendered in (1) M/s. Bishamber Dayal Chandra Mohan etc. etc. vs. State of U.P. and others etc.etc., AIR 1982 SC 33, (2) Jilubhai Nanbhai Khachar etc. etc. vs. State of Gujarat and another etc. etc. AIR 1995 SC 142. 5. Mr. M.A.Bukhari, learned Assistant Government Pleader appearing for the Government of Gujarat and Mr. J.D.Ajmera, learned Standing Counsel for Central Government submitted that functions of the Central Government under the Land Acquisition Act, 1894 in relation to acquisition of land for the purpose of the Union within the territory of the State of Gujarat have been entrusted to the Government of Gujarat and as notification under section 4 of the Act has been issued pursuant to entrustment of functions of the Central Government vide notification dated April 23, 1966 issued under clause (1) of Article 258 of the Constitution, said notification is not liable to be set aside. It was pleaded that notification issued under Article 258(1) of the Act is having force of law and, therefore, it is not correct to contend that without authority of law, properties of the petitioners are sought to be deprived. It was also claimed that as Item no.42 dealing with acquisition and requisition of property has been inserted in List-III of Seventh Schedule, the Government of Gujarat is competent to acquire land, both for the State purpose as well as for the purpose of Union and, therefore, even if there is no entrustment by Central Government of its powers to acquire the property, that would not invalidate either the notification issued under section 4 or the declaration made under section 6 of the Act. In support of their submissions,learned Counsel placed reliance on the decision rendered in (1) Jayantilal Amratlal Shodhan vs. F.N.Rana and others, A.I.R. 1964 S.C. 648, and (2) Mrs. Roma Bose and others vs. Union of India and others, A.I.R. 1978 Calcutta, 584. 6. In view of the rival submissions advanced at the bar, it would be relevant to notice certain provisions of the Act. Section 3(ee) defines the expression "appropriate Government" and provides that expression "appropriate Government" means in relation to acquisition of land for the purposes of the Union, the Central Government, and in relation to acquisition of land for any other purposes, the State Government. Section 4(1) of the Act enables the appropriate Government to publish a notification in the Official Gazette if it appears to it that land in any locality is needed or is likely to be needed for any public purpose. It inter-alia provides that the notification has to be published in the official Gazette and in two daily newspapers circulating in that locality of which at least one should be in the regional language. Reading section 4(1) with the provisions of Section 3(ee) of the Act, there is no manner of doubt that in relation to acquisition of land for the purpose of the Union, the Central Government can issue notification as contemplated by section 4(1) of the Act; whereas in relation to acquisition of land for any other purposes, State Government can issue notification under section 4(1) of the Act. However, Article 258(1) of the Constitution makes provision regarding conferment of powers etc. of the Union on the States in certain cases. Article 258(1) which is relevant for our purpose reads as under : "258. Power of the Union to confer powers etc. on States in certain cases- (1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends." This provision enables President to entrust to State Government functions which are vested in Union and not those which are vested in him as President. Article 258(1) enables President to exercise, by notification, the power which the legislature could exercise by legislation, to entrust functions in relation to any matter to which executive power of the Union extends, to the officers specified in the notification and subject to conditions prescribed therein. When delegation of executive function by Central Government to State Government is with the consent of the Government of a State, it is valid delegation notwithstanding absence of provision of delegation in the Act concerned. Provisions of Article 258(1) override those relating to distribution of executive powers under Articles 73 and 162 of the Constitution. In the case of M/s. Bishamber Dayal Chandra Mohan (supra) writ petitions were filed by wholesale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana seeking a declaration that the action of the State Government of Uttar Pradesh in setting up check-posts on the borders of the State and directing seizure of wheat in transit through States conflicted with the guarantees of inter-State trade and commerce dealt with by Article 301 of the Constitution. The questions as to the scope and extent of executive power of the State under Article 162 of the Constitution, in relation to regulation and control of trade and commerce in foodstuffs were raised before the Apex Court in a batch of petitions which were filed under Article 32 of the Constitution. The claim of the wholesale dealers of foodgrains was that the exercise of such governmental power conficted with the rule of law and in flagrant violation of the freedom of trade, commerce and intercourse guaranteed under Article 301 of the Constitution and the fundamental right to carry on trade and business guaranteed under Article 19(1)(g) of the Constitution. While dealing with executive power of State under Article 162, the Supreme Court has observed as under :- "The State Government cannot while taking recourse to the executive power of the State under Article 162 deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300A. The word "law" in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order, having the force of law, that is positive or State-made law. The effect of the Constitution (Fourth) Amendment Act, 1955,is that there can be no "deprivation" unless there is extinction of the right to property." 7. In the case of Jilubhai Nanbhai Khachar (supra) the Supreme Court considered constitutionality of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act (8 of 1982). Under the relevant provisions of the said Act, there was extinguishment of pre-existing rights, title and interest in the land including mines, minerals and quarries held by Girasdar and Barkhalidars. While construing Article 300A of the Constitution, the Supreme Court has observed that the word "law" used in Article 300A must be an Act of Parliament or of State Legislature, a rule or statutory order having force of law and the deprivation of the property must be only by authority of law, be it an Act of Parliament or State Legislature, but not by executive fiat or an order. What is emphasised by the Supreme Courst is that deprivation of property is by acquisition or requisition and if owner is deprived of property by acquisition or requisition, there is no deprivation without any sanction of law. The Supreme Court has emphasised that deprivation by any other mode is not acquisition or taking possession under Article 300A of the Constitution. 8. From the above-referred to two decisions of the Supreme Court,it becomes evident that deprivation of properpty cannot be without any authority of law and word "law" used in ARticle 300A is an Act of Parliament or of State Legislature, a rule or statutory order having force of law. In the light of principles enunciated by the Supreme Court in the above-referred to two decisions, the question whether notification issued under Article 258(1) of the Constitution is "authority of law" within the meaning of Article 300A of the Constitution,will have to be considered. At this stage, we may refer to the provisions of (The) State Acquisition of Lands for Union Purposes (Validation) Act, 1954. The above-referred to Act was enacted by the Parliament to validate the acquisition under the Land Acquisition Act, 1894 of lands by certain State Governments forthe purposes of the Union, and orders passed and proceedings held in connectioin therewith. Section 9(2) of the said Act provides as under :- "2. Validation of certain acquisitions of land and proceedings and orders connected therewith.Every acquisition of land for the purposes of the Union made by any State Government acting or purporting to act under the Land Acquisition Act, 1894, at any time during the period beginning with the commencement of the Constitution and ending with the day on which the State Government was entrusted with the functions of the Central Government in relation to the acquisition of land for the purposes of the Union in pursuance of clause (1) of article 258 of the Constitution, and every proceeding held and order made during the said period in connection with the acquisition of land for any such purposes, shall be deemed to be, and always to have been, as valid as if the State Government had been duly entrusted with the said functions of the Central Government during the said period,and accordingly no acquisition somade, and no proceeding held andno order passed by any authority under the said Act in connection with any acquisition of land during the said period, shall be called in question merely on the ground that the State Government was not duly entrusted with the functions of the Central Government at the time the acquisitioin was made or the proceedings was held or the order was made." A bare reading of section 2 makes it abundantly clear that acquisition of land by the Central Government for its own purposes is one of its functions and that function can be entrusted to the State Government by issuing notification under Clause (1) of Article 258 of the Constitution. There is no manner of doubt that while issuing notification under Article 258(1) of the Constitution,the Central Government confers its authority of law on the State Government to acquire land subject to certain conditions which may be stipulated in the notification. Therefore, State Government exercising powers in pursuance of notification issued under clause (1) of Article 258 of the Constitution will be acting with authority of law if it acquires any land for the purpose of Central Government. In our view, the point which is sought to be raised by the learned Counsel for the petitioners in the petitions is squarely covered by the decision of Supreme Court in the case of Jayantilal Amratlal Shodhan (supra). In the said case, the facts were that in exercise of the powers conferred by Art.258 of the Constitution the President of India on July 24,1959 had issued a notification entrusting with the consent of the State Government of Bombay, to the Commissioners of Divisions in the State of Bombay, the functions of the Central Government under the Land Acquisition Act 1 of 1894, in relation to acquistion of land for the purpose of Union within the limits of the territorial jurisdiction of the said Commissioners subject to the same control by the Government of Bombay as was from time to time exercisable by that Government in relation to acquisition of land for the purpose of the State. At the date of the notification the territory which later formed the State of Gujarat and in which the land in dispute was situate was part of the State of Bombay, but on May 1, 1960,-- called the appointed day-as a result of the reorganisation ofthe State of Bombay under the Bombay Reorganisation Act, 1960, out of the territory of that State, two States were carved out-- the State of Maharashtra and the State of Gujarat, and the territory covering the Baroda Division was allotted to the State of Gujarat. By the notification in question only "the functions of the Central Government under the Land Acquisition Act 1 of 1894, in relation to acquisition of land for the purpose of the Union" had been entrusted to the Commissioners of Divisions. The power exercisable by the appropriate Government under S. 55 of the Land Acquisition Act to frame Rules under the Act had not been entrusted to the Commissioner.By notification published on September 1, 1960 under S. 4(1) of the Land Acquisition Act 1 of 1894, the Commissioner, Baroda Division, State of Gujarat, exercising functions entrusted to him under the notification dated July 24, 1959 issued by the President, under Art. 258(1) of the Constitution had notified that a piece of land belonging to the appellant was likely to be needed for a public purpose viz. construction of a Telephone Exchange Building in Ellis Bridge, Ahmedabad. Notice was thereafter served by the Additional Special Land Acquisition Officer, Ahmedabad (who was appointed by the order of the Commissioner to perform the functions of a Collector), upon the appellant under S. 5A of the Land Acquisition Act inviting objections to the acquisition of the land. The appellant had filed objections to the proposed acquisition. The Additional Special Land Acquisition Officer had submitted his report to the Commissioner, who issued a notification dated January 11, 1961, under S. 6(1) of the Land Acquisition Act, declaring that the land notified under