SCA/24373/2006 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24373 of 2006 WITH SPECIAL CIVIL APPLICATION No. 29585 of 2007 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 ? ========================================================= GAUTAMBHAI RAMBHAI PATEL THR' POWER OF ATTORNEY & 1 - Petitioner(s) Versus STATE OF GUJARAT THR' SECRETARY & 3 - Respondent(s) ========================================================= Appearance : MR JITENDRA M PATEL for Petitioner Nos.1 and 2. MR DIPEN DESAI ASST.PUBLIC PROSECUTOR for Respondent Nos.1 and 2 MR HS MUNSHAW for Respondent No.3, MR PRASHANT G DESAI for Respondent No.4, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 03/03/2008 SCA/24373/2006 2/25 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. As common question of facts and law arise in both these petitions, the same are being disposed of by this common judgement and order. 2. The petitioners of Special Civil Application No.24373 of 2006 are the co-owners of agricultural land bearing Block No.776 admeasuring 58 Are and 68 sq.mtrs. situated in village Lambha, Taluka ; Daskroi, District ; Ahmedabad. 3. The petitioner of Special Civil Application No.29585 of 2007 is the co-owner of the agricultural land bearing Block No.281 admeasuring 94 Are and 9 sq.mtrs. situated in the sim of village Lambha, Taluka Daskroi, District ; Ahmedabad. 4. Notification under sec.4 of the Land Acquisition Act (“the Act” for short) came to be published / issued on 26/4/2005 for acquisition of the land in question and other lands as mentioned in the said Notification for Ahmedabad Urban Development Authority (AUDA) for public purpose i.e. common amenities on the Highway i.e. Sardar Patel Ring Road and the same was published in English daily news paper known as Western Times and SCA/24373/2006 3/25 JUDGMENT also in Vernacular language news paper. The objections were invited under sec.5A of the Act by issuing notice under sec.4(1) dtd.12-16/8/2005 and the respective petitioners also submitted their objections against the proposed acquisition dtd.13/9/2005 and thereafter notification under sec.6 of the Act came to be published on 10/8/2006. Being aggrieved by and dissatisfied with the aforesaid acquisition proceedings and notifications under sections 4 and 6 of the Act, the respective petitioners have preferred both these petitions under Article 226 of the Constitution of India for appropriate writ, order and/or directions for quashing and setting aside notification issued under sec.4 of the Act dtd.26/4/2005 and notification issued under sec.6 of the Act dtd. 10/8/2006. 5. Though there is a challenge to Notification under sec.4 of the Act dtd.26/4/2005 in both these petitions, Mr.J.M. Patel, learned advocate appearing on behalf of the respective petitioners has submitted that the petitioners do not press for the challenge to the notification under sec.4 of the Act dtd.26/4/2005 and both the petitions be confined to challenging notification under sec.6 dtd.10/8/2005. SCA/24373/2006 4/25 JUDGMENT 6. Mr.J.M. Patel, learned advocate appearing on behalf of the respective petitioners has vehemently submitted that the notification under sec.6 of the Act and the entire acquisition proceedings after notification under sec.4 of the Act is vitiated, as no opportunity of personal hearing as contemplated under sec.5-A of the Act has been given to the respective petitioners. It is submitted that pursuant to the notice issued by the Special Land Acquisition Officer, the respective petitioners appeared before the Special Land Acquisition Officer along with their advocate on 15/9/2005. However, on that day Mr.K.D. Parmar, the then Special Land Acquisition Officer was not present in the office and therefore, they were informed by Mr.Rathod, Mamlatdar that next date for personal hearing will be communicated to the petitioners by the Special Land Acquisition Officer. However, without giving an opportunity of personal hearing, notification under sec.6 of the Act has been issued. It is submitted that therefore valuable rights of the land owners to submit objections and personal hearing under sec.5A of the Act have been taken away and the same are fatal to the acquisition proceedings and therefore, it is requested to allow the present petition. It is further submitted that SCA/24373/2006 5/25 JUDGMENT as such the land in question is not needed for the public purpose of common amenities, as the land in question is situated in agricultural zone and therefore also the acquisition proceedings are required to be quashed and set aside. It is submitted by Mr.Patel, learned advocate appearing on behalf of the respective petitioners that even earlier when lands of the petitioners were acquired by the Ahmedabad Urban Development Authority (AUDA) for Sardar Patel Ring Road, an assurance was given to the petitioners that alternate land will be given to them and no more land would be acquired. However, neither any alternate land is allotted to the petitioners nor the promise for not acquiring more land is fulfilled. It is submitted that the objections raised by the petitioners against the proposed acquisition have not been properly considered and dealt with. 7. Mr. Patel, learned advocate appearing on behalf of the respective petitioners has heavily relied upon the following decisions of the Hon'ble Supreme Court as well as this Court in support of his submissions that hearing of the objections as contemplated under sec.5A of the Act must be effective and not mere formality and that right of personal hearing conferred under sec.5A of the Act is a SCA/24373/2006 6/25 JUDGMENT valuable right available to the land owners to submit objections and right of personal hearing provided under sec.5A of the Act cannot be dispensed with and failure to such procedural safeguards is fatal to the proceedings:- (i) 2000(2) GLR 1311 (Chhotubhai Chhikabhai Patel & ors. Vs. Special Land Acquisiton Officer, Surat & Ors.). (ii) 1977 GLR 100 (Farid Ahmed Abdul Samad & Anr. Vs. The Municipal Corporation of the City of Ahmedabad & Anr.) (iii)1977 GLR 479 (Kalumiya Karimmiya Vs. State of Gujarat & Ors.) (iv)(2005) 10 SCC 320 (Kanpur Development Authority Vs. Mahabir Sahkari Awas Samiti Limited). (v)(2005) 7 SCC 627 (Hindustan Petroleum Corpn.Ltd. Vs. Durius Shapur Chenai & Ors.) 8. It is also submitted by Mr.Patel, learned advocate that as such making a demand for personal hearing by the petitioners is also not necessary and it is the obligation on the part of the Collector to give an opportunity of personal hearing, as held by the Division Bench of this Court in the case of Chhotubhai Chhikabhai Patel (Supra). Further, it is submitted that no personal hearing has been given to the petitioners while considering objections under sec.5A of the Act, as Special Land SCA/24373/2006 7/25 JUDGMENT Acquisition Officer was not present on 15/9/2005 when the petitioners appeared through their advocate pursuant to the notices for objection under sec.5A of the Act on 15/9/2005, and therefore, the entire acquisition proceedings and the notification under sec.6 of the Act is vitiated and therefore, it is submitted to allow the petitions and quash and set aside the notification under sec.6 of the Act. 9. It is submitted by Mr.Patel that at the time when the acquisition proceedings were initiated, the land in question was within the limits of Ahmedabad Urban Development Authority and now the lands in question are included within the limits of Ahmedabad Municipal Corporation and therefore the land in question might not be needed by the Ahmedabad Municipal Corporation for the purpose for which it is sought to be acquired i.e. for common amenities and therefore, also it is requested to quash and set aside the impugned notification under sec.6 of the Act, as the acquiring body is changed and the land in question is not needed by the Ahmedabad Municipal Corporation. 10.Both the petitions are opposed by Mr.Dipen Desai, SCA/24373/2006 8/25 JUDGMENT learned Assistant Government Pleader appearing for the Special Land Acquisition Officer and State of Gujarat, Mr.H.S. Munshaw, learned advocate appearing for the Ahmedabad Urban Development Corporation and Mr.Prashant G.Desai, learned advocate for the Ahmedabad Municipal Corporation. 11.Affidavit-in-reply is filed by Ahmedabad Urban Development Authority (AUDA). Affidavit-in-reply is also filed on behalf of the respondent Nos.1 and 2 – Special Land Acquisition Officer. Affidavit-in-reply is also filed by Mr.KL Parmar, who was Special Land Acquisition Officer at the relevant time when the objections were submitted on 15/9/2005 and when the report was made by him under sec.5-A of the Act. 12.The present Special Land Acquisition Officer has specifically denied in his Affidavit-in-reply that Mr.K.L.Parmar, the then Special Land Acquisition Officer was not present on 15/9/2005 at the time of hearing of the objections. It is submitted that the objections submitted by the respective petitioners under sec.5A of the Act were received by him personally on 15/9/2005 and it was countersigned by him and at that time, the petitioners and their advocates were satisfied with the SCA/24373/2006 9/25 JUDGMENT objections and they never requested for personal hearing. It is submitted that after submitting objections under sec.5A of the Act, the same were forwarded to the Ahmedabad Urban Development Authority for their comments and thereafter a report was sent as required under sec.5A of the Act, after considering objections and the said report came to be accepted by the State Government and thereafter notification under sec.6 of the Act has been issued / published on 10/8/2006. It is submitted by them that it cannot be said that no opportunity and/or no opportunity of personal hearing has been given to the petitioners. It is submitted that opportunity of personal hearing, in fact, was given to the petitioners, but they did not avail the same and they were satisfied with filing of the written objections by them and considering the objections, a report was made and thereafter notification under sec.6 of the Act has been published. It is submitted that the land in question is needed for public purpose i.e. common amenities on the Highway on the Sardar Patel Ring Road. 13.Ahmedabad Urban Development Authority in its reply has submitted that the land in question and other lands are sought to be acquired for public purpose to establish SCA/24373/2006 10/25 JUDGMENT a center for common amenities on 60 meters wide Sardar Patel Ring Road. It is also submitted in the reply that the 60 meters wide road is for better future planning and to meet with the increasing vehicular traffic in the interest of the public at large. It is also submitted in the reply that the lands are sought to be acquired at various places i.e. at villages Lambha, Bakara, Sanathal, Badrana etc. on the 60 meters Ring Road for common amenities and it is not that the land of only the petitioners are sought to be acquired for the aforesaid purpose. 14.Affidavit-in-rejoinder is also filed by the petitioners to the Affidavit-in-reply filed by Ahmedabad Urban Development Authority, Special Land Acquisition Officer and also Mr.K.L.Parmar, the then Special Land Acquisition Officer. Affidavit of Mr. Kirit Patel, advocate is also filed to substantiate the contention of the petitioners that on 15/9/2005 when the petitioners submitted objections under sec.5A of the Act, Mr.K.L. Parmar, the then Special Land Acquisition Officer was not present in the office for personal hearing. It is also submitted that the land in question is not needed for the public purpose for which it is sought tobe acquired i.e. for common amenities. It is submitted that such a huge land for common amenities SCA/24373/2006 11/25 JUDGMENT is not required. Some allegations of malafide are also made by submitting that the lands of politically influential persons are not acquired but the lands of poor agriculturists are only acquired. 15.Mr.Prashant G.Desai, learned advocate appearing on behalf of Ahmedabad Municipal Corporation has submitted that even after the land in question is included within the limits of Ahmedabad Municipal Corporation, the Ahmedabad Municipal Corporation is in need of the aforesaid land for the common amenities and the public purpose still survives and therefore, it is requested to dismiss both the petitions. 16.Heard the learned advocates appearing on behalf of the respective parties. 17.At the outset, it is required to be noted that as stated hereinabove, Mr.J.M. Patel, learned advocate appearing on behalf of the respective petitioners has not pressed both the petitions qua challenge to the notification under sec.4 of the Act and therefore, both the petitions are required to be considered qua challenge to the notification under sec.6 of the Act only. 18. At the outset, it is required to be noted that under the impugned notifications under secs.4 and 6 of the Act, the SCA/24373/2006 12/25 JUDGMENT land of 15 persons / land owners are sought to be acquired and the petitioners are only two whose lands are sought to be acquired along with other land owners. Except the petitioners, nobody has challenged the acquisition proceedings and/or nobody has made any grievance with respect to not affording opportunity of personal hearing on 15/9/2005. 19.Notification under sec.4 of the Act came to be published on 26/4/2005. Notices under sec.4(1) of the Act (Annexure-D) came to be issued on 12-16/8/2005 calling upon the interested persons to submit their objections as contemplated under sec.5A of the Act and all the petitioners submitted their objections in writing on 13/9/2005 and hearing was fixed by the Special Land Acquisition Officer on 15/9/2005 and the petitioners appeared through their advocate along with written objections on 15/9/2005. It is the case on behalf of the petitioners that when the petitioners appeared in the office of the Special Land Acquisition Officer for personal hearing, Mr.K.L.Parmar, the then Special Land Acquisition Officer was not present in the office and therefore, written objections were accepted by Mr.Rathod, Mamlatdar and the said Mr.Rathod informed the SCA/24373/2006 13/25 JUDGMENT petitioner that next date of personal hearing will be communicated to the petitioners by the Special Land acquisition Officer subsequently and therefore, the petitioners waited for the date of personal hearing, however, notification under sec.6 of the Act has been issued on 10/8/2006 without giving personal hearing which is de-hors the provisions of the Act and therefore notification under sec.6 of the Act is required to be quashed and set aside. Affidavit-in-reply is field by the present Special Land Acquisition Officer as well as Mr.K.L. Parmar,, the then Special Land Acquisition Officer who was Special Land Acquisition Officer on 15/9/2005. Mr.K.L. Parmar, the then Special Land Acquisition Officer has stated in his Affidavit-in-reply that he was working as in-charge Special Land Acquisition Officer from 10/2/2005 to 30/9/2005 and the notification under sec.4 of the Act was issued by him and he has proceeded further under the provisions of the Act upto 30/9/2005. He has further stated in the Affidavit that representation dtd.12/9/2005 submitted by the petitioners in the office of the Collector, Ahmedabad was received by him on 13/9/2005. It is also further stated by him that he signed the said representation on 13/9/2005. It is further stated SCA/24373/2006 14/25 JUDGMENT in the affidavit that as per the directions issued by the Collector, the petitioners submitted their objections on 15/9/2005 and he put his signature on 15/9/2005. It is also stated that similarly various applications of agriculturists whose land were under the acquisition were also submitted and the same were received by him on 15/9/2005. It is specifically denied by him that he was not present in the office on 15/9/2005 and that the petitioners and other agriculturist were informed by his office that the next date of hearing will be communicated by the Special Land Acquisition Officer. It is further stated in the affidavit that the objections were submitted personally by the petitioners and other agriculturists and he had personally received the same and made his endorsement and the petitioners were never informed that they will be given next date for personal hearing. It is further stated in the affidavit that even in the objections submitted by the petitioners, the petitioners never demanded any opportunity of personal hearing. However, the aforesaid aspects have been denied by the petitioners. Therefore, it is word against word. At this stage, the conduct of the petitioners after 15/9/2005 is also required to be considered. Sec.6 notification came to SCA/24373/2006 15/25 JUDGMENT be published on 10/8/2006. Thereafter, proceedings under sec.9 of the Act came to be initiated and the respective petitioners submitted their objections and had participated in the said proceedings also. There is nothing on the record to show that after 15/9/2005, the petitioners has ever requested for personal hearing or asked for next date and/or have made any grievance for not giving personal hearing. If the contention of the petitioners that when they appeared in the office of the Special Land Acquisition Officer on 15/9/2005, Mr.K.L.Parmar, the then Special Land Acquisition Officer was not present in the office and they were told that next date for personal hearing will be communicated to the petitioners by the Special Land Acquisition Officer, is accepted, then in that case, the petitioners would have approached the authority for personal hearing requesting to give them an opportunity of personal hearing, within a reasonable time. However, the petitioners had not thought it fit to approach the authority requesting to give opportunity of personal hearing after 15/9/2005. It is the submission of the Special Land Acquisition Officer that the petitioners submitted their objections under sec.5A of the Act on 15/9/2005 in person which were accepted by SCA/24373/2006 16/25 JUDGMENT Mr.K.L. Parmar, Special Land Acquisition Officer which were endorsed by him and it is the signature of Mr.K.L. Parmar, Special Land Acquisition Officer on the objection under sec.5A of the Act and the petitioners were satisfied only in respect of submitting objections and they never insisted for personal hearing. Under the circumstances, it appears that it is not a case of total denial of submitting objections under sec.5A of the Act. Whether Special Land Acquisition Officer was present in the office or not as sought to be submitted on behalf of the petitioners, is highly disputed question of fact in view of the affidavit and counter affidavit by the petitioners and Special Land Acquisition Officer. Looking to the conduct of the petitioners, from 15/9/2005 till notification under sec.6 of the Act came to be published after a period of one year, the petitioners never made any grievance for not affording opportunity of personal hearing and it appears that the petitioners were satisfied with the submission of the objections under sec.5A of the Act on 15/9/2005, otherwise, they would have requested for personal hearing. Therefore, the decisions of the Hon'ble Supreme Court and this Court sought to be relied upon by the learned advocate appearing on behalf of the respective SCA/24373/2006 17/25 JUDGMENT petitioners, which are referred to hereinabove, are required to be considered in light of the facts of the present case. 20.In the decision relied upon by the learned advocates appearing on behalf of the petitioners, it seems that there was total denial of opportunity under sec.5A of the Act. In the case before the Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. (supra), the High Court set aside the acquisition proceedings having satisfied with the objections raised by the land owners objecting to the acquisition of the land which were not considered by the Government. Even in the said decision in para 8, the Hon'ble Supreme Court has held as under:- “8. The conclusiveness contained in Section 6 of the Act is indisputedly is attached to a need as also to the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The Court in a case where there has been total non-compliance or substantial non-compliance with the provisions SCA/24373/2006 18/25 JUDGMENT of Section 5-A of the Act, cannot hold its hands and refuse to grant a relief to the writ petitioners. Sub-section (3) of section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision – making process itself is in question, the power of jurisdictional review can be exercised by the Court in the event the order impugned suffers from well-known principles viz. Illegally, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner.” 21.In the case before the Hon'ble Supreme Court in the case of Kanpur Development Authority (supra), no opportunity was given to the respondents in the inquiry said to have been held under sec.5A of the Act and the High Court set aside the notification under sec.4 of the Act also. However, the Hon'ble Supreme Court restored the notification under sec.4 of the Act and directed the Land Acquisition Officer to proceed in accordance with law after holding inquiry under sec.5A of the Act. 22.There cannot be two views that sec.5A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired and that hearing given to a person SCA/24373/2006 19/25 JUDGMENT must be an effective one and not mere formality. In the case on hand, as stated above, it is not that there is total denial of submitting objection under sec.5A of the Act. The opportunity has been given which has been even availed by the petitioners and other land owners by filing objections. However, for the question with regard to the personal hearing, there is word against word and the same is highly disputed. It also appears that after 15/9/2005, the petitioners have never raised any objection with regard to not affording opportunity of personal hearing to the petitioners till the petition is filed and it appears that the petitioners were satisfied with submission of the objections under sec.5A of the Act on 15/9/2005. It is also not disputed by Mr.Patel learned advocate appearing for the petitioners that each decision is required to be considered in light of the facts of the case. 23.In the facts and circumstances of the case, the decisions relied upon by the learned advocate appearing on behalf of the petitioners are not applicable to the facts of the case on hand and the same are not helpful to the petitioners. 24.Now whether the objections submitted by the petitioners SCA/24373/2006 20/25 JUDGMENT and other land owners under sec.5A of the Act are considered or not is concerned, Special Land Acquisition Officer has filed Affidavit-in-reply stating that he has received objections submitted by the petitioners and other land owners on 15/9/2005 and the same were considered by him and since the acquisition was for Ahmedabad Urban Development Authority, he sent the objections to Ahmedabad Urban Development Authority by his letter dtd.31/3/2006 along with report under sec.5A of the Act and in response to the report, Ahmedabad Urban Development Authority by letter dtd.26/5/2006 sent its remarks which were called for by him and the authorities have considered the objections raised by the petitioners as well as other objectors and thereafter notification under sec.6 has been issued by the concerned authority. It is also to be noted that thereafter, after issuance of the notification under sec.6 of the Act, notices under sec.9(3) of the Act were issued and the petitioners have also participated in the said proceedings, however, they have never raised any objection with regard to non-grant of personal hearing, and they only raised a contention that they are going to challenge notification under sec.6 of the Act, that too after SCA/24373/2006 21/25 JUDGMENT publication of the notification under sec.6 of the Act. It is required to be noted that the land in question are sought to be