IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1461 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- KALUJI D RATHOD Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR P M Raval with Mr HARIN P RAVAL for Petitioners Mr Arun Oza, GOVERNMENT PLEADER for Respondent No. 1 Mr J V Japee for respondent no.7 NOTICE SERVED BY DS for Respondent No. 8 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE D.P.BUCH Date of decision: 24/11/2000 C A V. JUDGEMENT (Per : MR.JUSTICE D.P.BUCH) The petitioners have filed this petition for appropriate writ of direction for quashing and setting aside the impugned notifications dated 20.11.1998 and 15.1.2000 issued under sections 4 and 6 of the Land Acquisition Act (for short, 'the Act'), which are annexed at Annexures 'A' and 'B' respectively. The petitioners have further prayed to restrain the respondents, their agents and servants from taking any further action pursuant to the aforesaid notifications Annexures 'A' and 'B' and to restrain the State Government and its servants and agents by permanent injunction from acting upon the aforesaid notifications. 2. The facts may be briefly stated as follows: The respondents decided to construct a road at the disputed place which would pass through the lands of the present petitioners bearing survey nos. 115, 114, 110 and 109 etc. Thereafter, the Government changed its decision and decided to construct the road on the southern side of the aforesaid alignment and the alternative road, so proposed, would pas through lands bearing survey nos. 153,154,155, 152 etc. Thereafter, there was some representations made to the Government and the Government again changed the decision and decided to construct the road as per the original decision according to which the road shall pass through land bearing survey nos. 115, 114, 110 and 109 etc. 3. Being aggrieved by the said decision of the respondents, the petitioners have preferred this petition for the aforesaid reliefs. They have mainly contended that the decision taken by the respondents to construct the road at the disputed place has been taken at the intervention of respondent No.7, who is a sitting MLA of Himatnagar area. That this decision has been taken without applying mind and, therefore, it may be held that this decision has been arrived in malafide exercise of powers solely on account of the intervention of the sitting MLA-respondent no.7 of Himatnagar. The petitioners also stated that there is alternative alignment at which the road can be constructed. This was shown to the respondents and the respondents had agreed in past to construct the road at the said place. It is stated that the new Government was formed and the new Government, soon after taking over, changed the decision and decided to construct the road at the disputed place. Therefore, their decision was arrived at in malafide exercise of powers and there is complete non-application of mind. It is further contended that alternative roadline is much better and if the road is constructed there, it would be usable round the year. That the disputed road alignment is such that there would be accumulation of water as the road passes through the river and, therefore, the road, if constructed at the disputed place, would not be usable round the year. That the budgetary provision has been made for construction of road on the alternative place, and therefore, the State Government can continue with the said project to construct the road at the alternative place. That therefore, the petitioners have challenged the aforesaid decision of the State Government to construct the road at the disputed place. Since the State Government has stuck to the said decision, the petitioners have preferred this petition for the aforesaid relief. The petitioners have also submitted so many documents along with the petition. The respondents have also filed affidavits-in-reply to the averments made in the petition. Respondent no.7 has also filed affidavit, in order to explain his position as he has been personally joined as respondent no.7 to the petition. 4. On receipt of the petition, notice was issued and affidavits have been filed on behalf of the respondents which have been taken on record. 5. We have heard the learned Advocates for the parties and have perused the papers. It may be stated at the outset that M/s. P M Raval & Harin Raval, learned Advocates for the petitioners have extensively argued the matter to a considerable length, mainly concentrating on the issue of malafide and non-application of mind on various grounds. It is, therefore, necessary to deal with these two major issues while deciding the present petition. M/s. Raval and Raval have argued that the present decision to go for acquisition of the lands of the petitioners has been taken in malafide exercise of powers and for this purpose, they have referred to certain correspondence which is on record. It is contended by them that initially, the road was decided to be constructed on the lands which are on the southern side of the present alignment. That the local MLA, Shri Ranjitsingh Chavda submitted a letter dated 18.3.1996 to late Shri Savjibhai Korat, who happened to be the Minister-In-charge of Road and Building department. The R & B department, has, therefore, submitted that as soon as the late Minister received the aforesaid representation from the Sitting MLA Shri Ranjitsingh Chavda, Respondent no.7 herein, the alignment was changed and instead of going for construction of the road on the southern side of the present alignment, the Late Minister decided to go for acquisition of the lands in question and to construct road on that alignment without any enquiry as to the suitability or feasibility of the present alignment and therefore, it is clear that the said decision has been tainted by the influence of the present MLA, Shri Ranjitsingh Chavda, who is joined as respondent no.7 in this petition. That it is, therefore, a clear case of malafide exercise of powers on the part of that Minister at the relevant point of time. 6. The facts are not seriously in dispute. It is a matter of record that a decision was taken to go for construction of road on the southern side of the present alignment and, thereafter, a representation was made by respondent no.7 Shri Ranjitsingh Chavda, who happened to be the Member of Legislative Assembly from Himatnagar Constituency. The representation was made on 19.3.1998, a copy thereof has been placed at Annexure'F' to page 73 of the petition. There, it has been mentioned that there is a contemplation to construct the road known as 'Vasna Kadodari-Hamirpura' road having a length of 5 kms. That because of certain dispute, the road has not been completed and road in a length of 1125 metres only has been left untouched. Therefore, it was required to be completed. It has been contended that the aforesaid decision was taken to construct the road as per the present alignment which is in dispute in this petition, when Late Shri Savjibhai Korat was Minister of State and Shri Narottambhai was Cabinet Minister. That thereafter, there was change in political scenario and, therefore, that decision was changed and as per the new decision, the road which is now sought to be constructed is to the south of the present alignment. That therefore, the said decision should be changed and the road should now be constructed as per the original decision. Admittedly, if the road is to be constructed as per the original decision, then, it would be as per the disputed alignment. It appears that the late Minister has made an endorsement that the work should be commenced and it may be done as per the original decision, meaning thereby that the road should be constructed at the disputed place. M/s. Raval & Raval have argued at length that though there was a decision to construct the road on the southern side of the present alignment, the said decision has been changed at the intervention of respondent no.7 and without any enquiry into the matter, the decision has been changed which clearly shows non-application of mind and malafide exercise of powers on the part of the respondent Government. At the same time, it is required to be considered that the original decision was to construct the road at the disputed place. There is absolutely no dispute between the parties with respect to the said aspect of the case. It is a matter of record that there was some negotiations and some discussions between the leaders of the area as well as with the Ministers and Officers of the Government. On account of such discussions, some agreement was arrived at and as per the said agreement, new road was to be constructed to the south of the present alignment. The fact remains that the original decision was to construct the road at the disputed place and that alignment was changed at the intervention of MLA Shri Shankarji. There is no dispute about the same. This means that the second decision was taken at the intervention of the MLA and the second decision was again changed and it was reverted to the first decision at the intervention of respondent no.7. In the above view of the matter, it is clear that when the first decision was for construction of road at the disputed place and when it was changed at the intervention of the MLA, then the respondent Government would not be unjustified in reverting to the original decision. If there was some representation submitted to the State Government on the part of the MLA, i.e. respondent no.7, it cannot be said to be a malafide exercise of powers when the decision was changed and the alignment was also changed. 7. It has, thus, been contended that this amounts to malafide exercise of powers and non-application of mind since it is a matter of record that when the decision was earlier changed the expert opinion was obtained and it was in favour of the alternative alignment which is on the southern side of the disputed alignment. In the present decision, no such expert opinion was obtained and straightaway, it was directed to construct the road at the disputed place. In other words, the original decision was for construction of road at the disputed place. The second decision was for construction of road on the southern side of the disputed road and the third decision was again to construct the road at the disputed place which is to the north of the alternative road alignment. Therefore, it is required to be considered whether this can be treated to be a malafide exercise of powers on the part of the State Government. 8. Here it is to be considered that respondent no.7 himself had not moved in his personal capacity but in his capacity as the sitting MLA of the area concerned. The fact remains that he had received a written communication dated 18.3.1998 from the Sarpanch of Chandrani Group Gram Panchayat stating that the alignment was wrongly changed and, therefore, the work could not be completed and it was not being put to use. It is also contended in the said communication that the original alignment i.e. the alignment in dispute would be completed at less expenses and even this High Court had also recognized the said passage and, therefore, the said work should be completed. The said communication is placed at Annexure 'D' at page 69 to the petition. On the aforesaid written communication, respondent no.7 moved the Late Savjibhai Korat. Therefore, it cannot be said that respondent no.7 has misused his position and the same way it cannot be said that even Late Shri Savjibhai Korat had misused his position and acted in malafide exercise of powers. 9. Then, it is to be considered that the decision was to construct the road at the present disputed position which was changed to another alignment on the southern side and then it was reverted to the present alignment, which is not in dispute in this matter. This shows that the initial decision was to construct the road at the disputed place. For this purpose, it has been made clear that the site was properly seen, verified and examined and after due consideration, it was decided to construct the road at the disputed place at the first instance. It, therefore, can be said that when respondent no.7 submitted a written representation to late Shri Savjibhai Korat on 19.3.1998, the Government had readymade material available with it with respect to the present road alignment including the length of the road, the width of the road, the probable expenses to be incurred for the construction of the road, material about land to be acquired for the purpose of widening the road etc. Therefore, relevant materials were available with the Government at that point of time, since there was already a decision to construct the road at the position. It can be said that the competent authority and the State Government must have considered the said materials lying before them while changing the decision of constructing the road at the disputed place. It was therefore, not necessary for the present respondents to call for fresh materials for fresh opinion of experts in order to change the decision. In other words, simply because fresh report was not called for and new materials were not collected, it cannot be said that late Shri Savjibhai Korat acted with malafide intention and there was non-application of mind with respect to the said representation dated 19.3.1998 presented to him by respondent no.7. It can also not be said that as soon as the representation was submitted on 19.3.1998, late Shri Savjibhai Korat changed the alignment without application of mind and without having even materials before him. In fact, it is not possible to make out as to on what date the endorsement was made by Late Shri Savjibhai. The said representation is dated 19.3.1998 and, even if the endorsement was made on the same day, it cannot be said that the Government had no materials before it to decide as to what would be the proper alignment and which would be the proper place to construct the road. Therefore, from this angle also, the action of the Government cannot be said to be malafide. 10. It has, then, been contended that there is non-application of mind at the stage of section 5(A) of the Act. For the said purpose, M/s.Raval & Raval, have pointed out certain remarks offered by the concerned departments in Form 'D' to be prepared under Section 5(A) of the Act. In fact, this form was shown by the learned Government Pleader for showing that even there was application of mind, at the stage of section 5(A) of the Act. However, M/s.Raval & Raval have pointed in para 14 of the said Form which shows that the Government had sanctioned Rs.15.5 lakhs for the construction of the road at the alternative place and the work can be undertaken after the completion of land acquisition work and after the allotment of funds for the said construction. Mr P M Raval, learned Sr.Counsel has argued for the petitioners that this is a wrong noting or wrong remark, inasmuch as there was no need to acquire any land since the owners of the land through which the said road would pass, have sacrificed their lands. The facts at present are different. It is an admitted position that one of the land holders has filed a suit objecting to the acquisition of the said land, therefore, it cannot be said that the said remarks were false. It has to be considered that at least one person who had earlier agreed to sacrifice his land is now not agreeable to sacrifice his land. Then the Government has to go for compulsory acquisition of the said land in accordance with the Act. Therefore, the remarks recorded therein cannot be treated to be false. Even with respect to the provisions of funds, it is true that the said fund was sanctioned in the past but the concerned department can use the said amount of Rs.15.5 lakhs only if the said fund is ultimately placed at the disposal of the said department. Therefore, that remark also cannot be said to be false. Even otherwise, this is not the final decision recorded by the competent authority under section 5A. This appears to be a note prepared by the concerned departments for the purpose of enabling the competent authority to decide the issue under section 5A of the Act. The report under section 5-A is made by the acquiring body as well as by the Land Acquisition Officer, after affording opportunity of personal hearing to the petitioners as well as their Advocates and, therefore, it cannot be contended that there was non-application of mind in considering the objections raised by the petitioners. 11. M/s. Raval & Raval have time and again argued that it is more convenient to construct the road at the alternative place, instead of at the disputed place. It is their contention that if the road is constructed at the disputed place, then one has to pass through the river and it would be difficult to use this road during monsoon. It is, therefore, their submission that it is very convenient to have a road at the alternative alignment so that it can be used all through out the year. After all the State Government is the final authority to decide as to where the road should be constructed. The department has decided to construct the road at the disputed place after taking into consideration the technical opinion which already existed on the record. Therefore, it cannot be said that the said decision is taken in malafide exercise of powers and there was non-application of mind. 12. Moreover, it is to be seen that so far as the present alignment is concerned, it is indisputable in this petition that the road will be constructed in a small amount of Rs.6 lakhs or less. This includes the amount of compensation to be paid to the owners of the land. On the other hand, the expenditure for the alternative road would be Rs.15.5 lakhs. Moreover, it is a matter of record that the road at the disputed place will be constructed on the aid to be received from the World Bank. There is no serious dispute about the same. No such aid is sanctioned for the road to be constructed at the alternative place. This would be a great loss to the State Government since the State Government would not get World Bank fund if the road is not constructed at the disputed place. One more difficulty according to the respondents is that at the alternative place six Nalas are required to be constructed for the construction of the road for the passage of water. No such Nalas are required to be constructed at the disputed place. Moreover, it is a matter of record that though the new road would pass through the river, considering the average rainfall and the maximum rainfall in a particular year, there is no heavy accumulation of water as stated by the respondent so as to block road during monsoon. Therefore, this apprehension voiced by the petitioners is without any foundation and there is nothing on record to show that the road as per the present alignment is likely to be blocked on account of accumulation of water during monsoon. On the other hand, the respondents have clearly stated that the rainfall is not heavy and there is no heavy accumulation of water at the place in question and, therefore, accumulation of water is not likely to block the road at any point of time. Even the learned Government Pleader has made it clear that even when the road is constructed at the disputed place, it would be possible for the people at large to make use of the road round the year. 13. Another aspect of the case is that so many people of so many villages will be in a position to use this road and, hence it would be very beneficial to more number of persons and it would be in the interest of the State and also in the interest of people at large to construct the road at the disputed place. This argument has great deal of force since the road is required to be constructed for the benefit of the people at large. 14. It is to be seen that the aforesaid road alignment at the disputed place was sanctioned as back as in September, 1992 even the possession of land was taken by mutual consent from many land holders and the road, to a great extent, has already been constructed by the respondents. This shows that the petitioners have come late to the court and this delay must defeat their cause. As said above, at the disputed land, road was sanctioned in September, 1992 and the alternative alignment was considered in May, 1994. This shows that when the previous Government decided to construct the road in 1992 with a particular alignment, the decision was changed in 1994 at the intervention of the concerned Member of the Legislative Assembly and again it was changed at the intervention of respondent no.7, who did it at the instance of the representation received from Chandrani Group Gram Panchayat referred to hereinabove. 15. It has also been contended that the road at the disputed place is already in existence to a great length. However, the road is required to be widened to some extent and, therefore, the necessity to acquire the land would be of a very limited area. Moreover, the said road would be a straight one whereas, the alternative road would be a zigzag and uneven road as stated by the respondents. Even from the maps shown to us, it can be gathered that the road at the disputed place would be a straight one and the road at the alternative place would be in a zigzag condition. 16. The process of acquisition of the very same lands in question was challenged in a suit being Regular Civil Suit No.177/1993 by the owner of agricultural lands, bearing survey nos. 8,111,114,115,116, 109, 108 and 165. The plaintiffs of that suit had applied for interim injunction under Order 39 Rule 1 & 2 of the Code of Civil Procedure Code. They did not get the same from the Civil Court, then they preferred Civil Misc.Appeal before the District Court being Civil Misc.Appeal no.64 of 1994 under Order 43 of the Code. There also, their appeal was dismissed by the learned Joint District Judge. Being dissatisfied by those judgments and orders, they had approached this court under section 115 of the Code by way of Civil Revision Application no.22 of 1996. Here also they failed as their CRA was dismissed by the learned Single Judge of this Court on 8.5.1996. (D S Solanki v.Executive Engineer, Himatnagar, reported in 1996 (2) GLH 253). With respect to the situation and position of the place at which the present road is proposed to be constructed, the learned Single Judge has observed in para 7 as follows: "Pursuant to the aforesaid direction, D M Vanker, Record Keeper, District Inspector, Land Record, Himatnagar, Sabarkantha, has filed the affidavit and has stated that there is government owned 33 feet wide Nalla which is 975 meters land and which is passing