SCA/11408/2007 1/45 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11408 of 2007 With SPECIAL CIVIL APPLICATION No. 11409 of 2007 To SPECIAL CIVIL APPLICATION No. 11424 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 ? ========================================================= DHANSUKH MAGANBHAI PATEL & 5 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR RS SANJANWALA FOR MR SUNIL C PATEL for Petitioners MR DIPEN DESAI ASST.GOVERNMENT PLEADER for Respondent Nos.1-3, MR HS MUNSHAW for Respondent No.4, MR DHAVAL G NANAVATI for Respondent No.5, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 27/02/2008 SCA/11408/2007 2/45 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. As in this group of petitions common question of law and fact arises and challenge is to the common Notification issued under Sections 4 and 6 of the Land Acquisition Act, they are being disposed of by this common judgment and order. 2. By way of these petitions under Article 226 of the Constitution of India, the respective petitioners – original land owners of land bearing Block Nos.13, 14, 16, 17, 18 and 19 of Village Asarma, Taluka Choryasi, District Surat, have challenged the Notification dated 28.11.2005 issued under Section 4 of the Land Acquisition Act (hereinafter referred to as “the Act”) and also the declaration dated 19.4.2006 issued under Section 6 of the Act. The respective petitioners have also prayed for an appropriate writ, order or direction, quashing and setting aside the decision of the State Government of not accepting the proposal of Surat Urban Development Authority (hereinafter referred to as “SUDA”) to de- reserve the lands of the petitioners and designate for SCA/11408/2007 3/45 JUDGMENT agricultural use, as reflected in the Notification dated 2.9.2004 issued under the provisions of the Gujarat Town Planning and Urban Development Act (hereinafter referred to as “TP Act”). It is also further prayed to direct the respondents to revise the draft development plan in respect of the lands in question and de-reserve the petitioners' lands and designate them for agricultural use under the subsisting development plan for the area in question. 3. The lands in question are acquired for the public purpose of sewage treatment plant for SUDA and now Surat Municipal Corporation (SMC). The petitioners are the owners of the lands in question situated at Village Asarma, Taluka:Choryasi, District Surat. Originally the lands in question are put under reservation for the purpose of sewage disposal work for SUDA under the development plan under the Town Planning Act since 1997. Some of the lands of the petitioners came to be acquired in the year 1997 for the sewage treatment plant. That development plan was sought to be revised, and in the revised development plan prepared by SUDA, it was SCA/11408/2007 4/45 JUDGMENT proposed that the reservation of the lands be dropped and it be designated for agricultural use. A revised development plan was published on 17.5.2001 and objections were invited. Thereafter the proposal and the revised development plan was sent to the State Government. The proposal to remove reservation for the purpose of sewage disposal work for SUDA was not accepted by the State Government, and by Notification published on 2.9.2004, in exercise of powers conferred by clause (c) of Sub-sec.(1) of Section 17 of the TP Act, the revised development plan has been sanctioned and the reservation of the lands in question for the purpose of sewage treatment plant continued and now sanctioned development plan under the TP Act, the lands in question are reserved for the sewage disposal works (sewage treatment plant). Thereafter SUDA passed a Resolution No.2328 to acquire the lands in question for construction of sewage treatment plant for the areas of Village Pal and Village Palanpore for SUDA. On the proposal made by SUDA, the State Government issued a Notification under Section 4 of the Act on 28.11.2005, inter-alia, notifying the acquisition of the lands in question and the public SCA/11408/2007 5/45 JUDGMENT purpose mentioned in the said Notification is for setting up a sewage treatment plant for SUDA. In clause 3 of the said Notification, the Government also notified that, in exercise of powers conferred by Section 17(4) of the Act, inquiry under Section 5-A of the Act has been dispensed with. 3.1 It is the case on behalf of the petitioners that immediately thereafter they have submitted a written representations to the Secretary, Revenue Department, State of Gujarat, raising several issues including the issue of need to acquire the lands for the aforesaid public purpose and the said representation is dated 15.12.2005. That thereafter declaration under Section 6 of the Act came to be published on 19.4.2006. It is the case on behalf of the petitioners that thereafter they have addressed a detailed representation to the Land Acquisition Officer, Surat, the Hon'ble Chief Minister and to the Chief Executive Officer of SUDA objecting to the acquisition of the lands in question, and as there is no response to the said representations, they have preferred the present Special Civil Applications for the aforesaid SCA/11408/2007 6/45 JUDGMENT reliefs. 3.2 It is also required to be noted at this stage that after declaration under Section 6 of the Act came to be issued on 19.4.2006, by a Notification issued on 20.7.2006 by the Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar in exercise of powers conferred by Sub-sec.2 of Section 3 of the Bombay Provincial Municipal Corporations Act, 1949, the limits of the Surat Municipal Corporation have been extended and the areas of various Gram Panchayats mentioned in the said Notification inclusive the areas of Village Pal and Village Palanpore have been merged into with the Surat Municipal Corporation limits. 3.3 Being aggrieved and dissatisfied with the Notification issued under Sections 4 and 6 with respect to the lands in question, the petitioners have preferred the present Special Civil Applications under Article 226 of the Constitution of India for the aforesaid reliefs. 4. Shri R.S.Sanjanwala, learned advocate with Shri SCA/11408/2007 7/45 JUDGMENT Sunit C.Patel, learned advocate appearing on behalf of the respective petitioners have challenged the Notification under Sections 4 and 6 of the Act and the acquisition proceedings on following grounds: (i) The lands in question are not needed for the purpose for which they are sought to be acquired. (ii) There was no such urgency to dispense with the inquiry under Section 5-A of the Act. (iii) The lands in question are included in the Surat Municipal Corporation and the Surat Municipal Corporation has already decided to set up a new sewage treatment plant at Village Bhesan for the benefit of newly merged areas, and hence the public purpose for which the lands are acquired does not survive. 4.1 Shri Sanjanwala, learned advocate appearing on behalf of the respective petitioners has submitted that the lands in question are under reservation since 1997 SCA/11408/2007 8/45 JUDGMENT reserved for the purpose of sewage disposal work for SUDA and the said reservation has been continued till date still the lands in question are not used for the purpose of sewage disposal work and, therefore, there was no justification to invoke the urgency clause in exercise of powers conferred under Section 17 of the Act. It is submitted that, to invoke the urgency clause and dispensing with the inquiry under Section 5-A of the Act, is a non-application of mind by the State Government. It is submitted that, even the State Government has also not applied its mind to the fact that, even the SUDA in 2001 while submitting the revised development plan proposed that the reservation of the lands be dropped and it be designated for the agricultural use. It is submitted that, as held by the Hon'ble Supreme Court in catena of decisions that Section 5-A of the Act confers a valuable and important right in favour of a person whose lands are sought to be acquired and having regard to the provisions contained under Article 300-A of the Constitution even it is held to be akin to a fundamental right. It is submitted that there must be a proper application of mind in regard to the public purpose of considering the relevant factors SCA/11408/2007 9/45 JUDGMENT and rejecting irrelevant factors. It is submitted that, in the facts and circumstances of the present case, more particularly, the lands in question are under reservation since 1997 for the sewage disposal work, and even in 2001 the reservation was sought to be dropped while submitting the revised development plan, there is no question of invoking the urgency clause. It is submitted that, by invoking Section 17 of the Act and dispensing with inquiry under Section 5-A of the Act, the right conferred in favour of the petitioners to object to the acquisition proceedings on the ground that there is no need to acquire the lands in question for sewage disposal work has been taken away. 4.2 Shri Sanjanwala, learned advocate has also further submitted that, there must be an exceptional and extra- ordinary urgency exists justifying to invoke Section 17 of the Act and dispensing with the inquiry under Sec.5-A of the Act. It is submitted that as such there is no satisfaction on the part of the State Government to invoke Section 17 and to dispense with the inquiry under Sec.5-A of the Act. It is submitted that the satisfaction on the part SCA/11408/2007 10/45 JUDGMENT of the State Government must be that Section 5-A is required to be dispensed with. It is submitted that, in the present case, there is no such satisfaction shown that Section 5-A inquiry is required to be dispensed with. It is submitted that there is total non-application of mind to the aforesaid aspect. 4.3 Shri Sanjanwala, learned advocate appearing on behalf of the respective petitioners has relied upon the following decisions of the Hon'ble Supreme Court in support of his above submissions and in support of his prayer to quash and set aside the Notifications under Sections 4 and 6 of the Act and to quash and set aside the acquisition proceedings. (i) The State of Punjab and another vs. Gurdial Singh and others, AIR 1980 SC 319. (ii) Om Prakash and another vs. State of U.P. and others, (1998) 6 SCC 1. SCA/11408/2007 11/45 JUDGMENT (iii) Union of India and others vs. Deepak Bhardwaj and others, AIR 2004 SC 3289. (iv) Union of India and others vs. Mukesh Hans, (2004) 8 SCC 14. (v) Union of India and others vs. Krishan Lal Arneja and others, (2004) 8 SCC 453. (vi) Hindustan Petroleum Corporation Ltd., vs. Darius Shapur Chenai and others, (2005) 7 SCC 627. 4.4 So far as the prayer in terms of para 27(b) i.e. to quash and set aside the decision of the State Government of not accepting the proposal of SUDA to de-reserve the lands of the petitioners and designate for agricultural use, it is submitted by Shri Sanjanwala, learned advocate appearing for the petitioners that, as the land was not needed for the sewage disposal work, the State Government has materially erred in not accepting the SCA/11408/2007 12/45 JUDGMENT proposal of SUDA and not de-reserving the lands in question from the reservation for sewage disposal work. It is submitted that as such the said relief will be helpful to the petitioners if this Court quashes and set aside the acquisition proceedings and/or the Notification under Sections 4 and 6 of the Act. It is submitted that only thereafter the said relief has some relevance/importance. 4.5 Shri Sanjanwala, learned advocate has also further submitted that the lands in question were sought to be acquired for construction of sewage treatment plant for the village people of Village Pal, Village Palanpore and Village Asarma which are now merged into the local limits of Surat Municipal Corporation and the Surat Municipal Corporation has already taken a decision to set up a new drainage net work/plant at Village Bhesan and therefore the public purpose for which the lands are acquired does not survive. 4.6 It is further submitted by him that, initially in the year 1997, when a proposal to reserve the lands of village Asarma was moved, several block numbers were SCA/11408/2007 13/45 JUDGMENT included in the reservation. However, substantial areas now stand de-reserved and the areas which have been de- reserved have now been constructed by certain builders and developers. It is submitted that there is no justification for partly de-reserving and releasing lands of village Asarma while continuing reservation over some part of the lands in question. It is also further submitted by Shri Sanjanwala that the lands of the petitioners are abutting river Tapi and khadi and some of the lands surrounding the petitioners' lands are khar lands and are not capable of any use, much less use for agricultural purpose and the petitioners' lands are fertile lands which are being used for agricultural purposes, and as such, it would be prudent and reasonable that fertile agricultural lands are not used for the purpose of sewage treatment plant when in the same area, khar lands incapable of any use are available and can be used for setting up a sewage treatment plant. It is submitted that the lands were reserved for the very purpose in the year 1997, and from 1997 upto 2005, no efforts were made for acquiring the lands in question, and all of a sudden the lands are sought to be acquired and that too invoking the urgency SCA/11408/2007 14/45 JUDGMENT clause and dispensing with inquiry under Section 5-A of the Act. It is submitted that the petitioners apprehend and have reason to believe that the lands acquired will not be used for the purpose for which the lands are acquired. It is submitted that even certain lands which have been acquired for the sewage treatment plant and/or sewage network have not actually been put to use. That the lands of Village Bhesan which were acquired for the very purpose have also not been actually utilised. That even the Surat Municipal Corporation have no funds to pay even compensation to the petitioners and/or for the sewage treatment plant for which the lands are acquired and, therefore, it is requested to quash and set aside the lands acquisition proceedings and the Notification under Sec.4 of the Act and the declaration Sec.6 of the Act. 5. The petitions are opposed by the Special Land Acquisition Officer, State of Gujarat, the Revenue Department, State of Gujarat, SUDA and Surat Municipal Corporation. Shri Dipen Desai, learned Assistant Government Pleader has appeared on behalf of State Government as well as the Land Acquisition Officer. Shri SCA/11408/2007 15/45 JUDGMENT H.S.Munshaw, learned advocate appeared on behalf of SUDA and Shri Dhaval G.Nanavati, learned advocate appeared on behalf of Surat Municipal Corporation. Affidavit-in-reply is filed by the respondent No.1 affirmed by the Under Secretary, Revenue Department, State of Gujarat, dated 20.2.2008 (pages 134 to 138). 5.1 It is submitted in the affidavit-in-reply that the lands in question are required for the public purpose of sewage treatment plant for the area which was at the relevant time falling under SUDA. It is further submitted in the reply that the lands in question has been acquired for the aforesaid public purpose, and the Collector, Surat, forwarded a proposal dated 11.3.2005 inter-alia stating that the lands in question and other lands situated at Village Asarma, Taluka Choryasi, District Surat have been reserved for the public purpose in the development plan vide Notification dated 2.9.2004 issued by the State Government and the State Government continued the reservation for the sewage treatment plant in the development plan of Surat. The Collector, Surat also forwarded a proposal stating that the lands are required SCA/11408/2007 16/45 JUDGMENT to be acquired, and looking to the emergent need of the land in question, urgency clause is also required to be invoked. The Collector, Surat issued Notification under Section 4 of the Act declaring intention to acquire the lands in question by invoking urgency clause. It is submitted in the reply that along with other relevant papers, certificate dated 26.10.2004 of Chief Executive Authority, SUDA was also forwarded whereby Chief Executive Authority has in detail stated the reasons why urgency clause is required to be invoked. In the said certificate it was certified that unless priority is given to sewerage scheme, it will cause lot of problem including health related issues. It is further submitted in the reply that, according to the water sewerage scheme, 114 litre capita per day (LCPD) of water is to be supplied, and if proper sewerage system is not provided, domestic water would flow on the road which will cause nuisance of mosquito breeding and other health related issues. Therefore, it was requested to acquire land in question urgently by invoking urgency clause. It is further submitted in the affidavit-in-reply that looking to the aforesaid material and other relevant material placed on SCA/11408/2007 17/45 JUDGMENT record, Urban Development and Urban Housing Department issued no objection certificate on 22.8.2005 after being subjectively satisfied that urgency clause is required to be invoked. It is further submitted in the reply that the said file along with the certificate of the Urban Development and Urban Housing Department was placed before the Revenue Department for issuing Notification under Section 4 and for invoking urgency clause. The Revenue Department after taking into consideration the entire material including the proposal of the Collector, the certificate of the SUDA and other material placed along with the said letter and also certificate of the Urban Development and Urban Housing Department, was subjectively satisfied that there is urgent need for acquisition of the land in question and for taking possession of the land. Therefore, the decision to invoke the urgency clause has been taken by the State Government. It is submitted that it is an administrative decision. It is further submitted that the declaration under Section 6 was issued on 19.4.2006, and after issuing notice under Section 9(3)(4) of the Act and after considering the objections, the Special Land Acquisition SCA/11408/2007 18/45 JUDGMENT Officer has forwarded draft award to the State Government for its approval and the same is under consideration. 5.2 An affidavit-in-reply is filed by the respondent No.3 - Special Land Acquisition Officer dated 21.9.2007 and further affidavit is also filed by the Special Land Acquisition Officer dated 19.2.2008. It is submitted by the Special Land Acquisition Officer that a Notification under Section 4 of the Act which are under acquisition for sewage treatment plant for SUDA has been published in the Government Gazette on 28.11.2005. The said Notification was also published in two dailies i.e. Gujarat Prabha and Gujarat Samachar on 3.12.2005 and 4.12.2005 respectively. The said Notification was affixed on the notice board of the Office of the Mamlatdar of Choryasi Taluka since the disputed lands are situated in the said Taluka. The said Notification was also affixed on Chavdi at Village Asarma as the lands under acquisition are situated in Village Asarma. It is submitted that the Notification indicates that the Government thought it fit to apply the provisions of Section 17(4) of the Act since SCA/11408/2007 19/45 JUDGMENT the SUDA requested that there is urgency of construction of sewage treatment plant in the said area. It is submitted that in the Notification it was clear that Section 17(4) of the Act is applied and therefore the provisions of hearing of objections under Section 5-A shall not apply. It is submitted that, in view of invocation of Section 17(4) of the Act, the authority shall not in obligation to follow the procedure prescribed under Sec.5-A of the Act before issuing Notification under Section 6 of the Act. It is submitted that as such in response to Notification under Section 4, some of the petitioners submitted their objections contemplated under Section 5-A of the Act to Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar and not to the Land Acquisition Officer. Thereafter Notification under Section 6 of the Act came to be published in the Government Gazette on 19.4.2006 and in the local Newspaper on 5.5.2006. It is submitted that the notices contemplated under Section 9 were issued to the land owners and they were heard on 12.6.2006, and after hearing the land owners, a draft was prepared and the same was sent to the Revenue Department for approval. Therefore it is submitted that SCA/11408/2007 20/45 JUDGMENT there is no breach committed by the Land Acquisition Officer in following the procedure prescribed under the Land Acquisition Act. In the further affidavit-in-reply it is submitted that that the SUDA had proposed to invoke urgency clause, the State Government after taking into consideration the entire material on record was subjectively satisfied that there is need for invoking urgency clause, the same was invoked and thereby procedure to hear objection under Section 5-A was dispensed with. It is further submitted in the reply that, as per Sec.17(4) of the Act, before taking any possession of the land for which urgency clause is invoked, the Collector shall tender payment of 80% of the compensation to the persons interested. However, in the present case, as the acquiring body i.e. Surat Municipal Corporation has not deposited the amount of compensation and therefore the said compensation could not be paid to the interested persons. Therefore, in absence of payment of 80% of compensation, possession could not be taken though there is urgency in acquiring land and taking possession. However, immediately on deposit of the compensation, the possession will be taken SCA/11408/2007 21/45 JUDGMENT over. 5.3 An affidavit-in-reply is filed on behalf of respondent No.4 - SUDA. It is submitted in the said affidavit-in-reply that the lands in question are needed for the public purpose of sewage disposal work and sewage treatment plant and the lands in question are reserved under sanctioned development plan sanctioned by the State Government under the TP Act. It is submitted that the lands in question which is under acquisition for public purpose was under reservation for the sewage treatment plant under development plan of SUDA prepared after inviting objections from public at large. It is submitted that though the objections were invited as envisaged under the provisions of Section 15 of the Act and at that point of time no objections and suggestions were received and the land was under reservation for the sewage treatment plant. It is submitted that, even while sanctioning the revised draft development plan, the State Government on 2.9.2005 has continued the land under reservation for the same public purpose. It is submitted that the city of Surat is one of the fastest developing city SCA/11408/2007 22/45 JUDGMENT of the country and its economic, commercial and industrial development is enormous. It is submitted that the population and the area of the city of Surat is increasing and expanding at the fastest speed in the country and, therefore, as a future planning the land in question as well as the land of GIDC and the State Government are required for the establishment of sewage plant. It is submitted that initially the areas of Villages Pal and Palanpore were within the limits of SUDA and, therefore, it was planned to lay down underground drainage and also established a sewage treatment plant. It is submitted that the Board of Members of SUDA passed a resolution in its meeting dated 14.10.2004 for the acquisition of the land in question under the urgency clause of Land Acquisition Act vide Resolution No.2328 and it was proposed to acquire the private land, land of GIDC as well as Government land for the establishment