SCA/24871/2006 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24871 of 2006 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 ? ========================================================= DAYARAMBHAI JAIRAMDAS GONDALIA - Petitioner(s) Versus STATE OF GUJARAT THRO'SECRETARY & 3 - Respondent(s) ========================================================= Appearance : MR AJ SHASTRI for Petitioner(s) : 1, MR DIPEN DESAI for Respondent(s) : 1, MR RM CHHAYA for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/03/2008 SCA/24871/2006 2/12 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Rule Mr.Dipen Desai, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent No.1 and Mr.R.M. Chhaya, learned advocate waives service of notice of rule on behalf of the respondent Nos.2 to 4. 2. At the request of the learned advocate appearing on behalf of the respective parties, the matter is taken up for final hearing today. 3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, order and/or direction quashing and setting aside the action of the respondents – authorities of resorting to process under the provisions of Land Acquisition Act, 1894 (“the Act” for short) with respect to the land bearing Survey Nos.66/1 and 66/2 situated at Digvijaygadh and consequently to set aside Notification issued under sec.4 of the Act on 3/7/2006. During pendency of the present petition, the authorities have SCA/24871/2006 3/12 JUDGMENT issued Notification under sec.6 of the Act on 12/7/2007 and therefore, by amendment, the petitioner has also prayed for appropriate writ, order and/or directions to quash and set aside Notification issued under sec.6 of the Act. 4. Petitioner is the owner and occupier of the land bearing Survey No.66/1, Plot No.30 situated at Digvijaygadh, Taluka ; Ranavan District ; Porbandar. The Notification under sec.4 of the Act came to be published / issued on 3/7/2006 with respect to the land in question and other lands, total admeasuring 35964.67 of land for expansion of Vanana Industrial Estate. 5. It is the case on behalf of the petitioner that under the guise of acquiring the land for the public purpose for expansion of Vanana Industrial Estate, in fact, the land in question, more particularly land bearing Survey Nos.66/1 and 66/2 is to be acquired for a private company named M/s.D.R. Garments Private Limited and in fact, before even notices under sec.5-A of the Act are issued, the said M/s.D.R. Garments Private Limited encroached upon some of the land as if the land is already acquired and SCA/24871/2006 4/12 JUDGMENT allotted to them and therefore, a representation was made to the Collector as well as to the Hon'ble Chief Minister through Chief Minister's Complaint Redressal Forum and the possession which was unauthorisedly in occupation of the M/s.D.R. Garments Private Limited was taken back and the compound wall was demolished. Therefore, it is the case on behalf of the petitioner that the entire land acquisition procedure is colourable exercise of powers and the land in question is sought to be acquired by the authority for the benefit of the aforesaid private company which is not permissible under the Act. It is also the case on behalf of the petitioner that therefore under the Right to Information Act, the petitioner sought to get information whether the proposed acquisition is for the benefit of only one company or not. The authority of the GIDC informed the petitioner vide communication dtd.30/10/2006 that the land in question is not to be given to any other industries. Therefore, it is requested to quash and set set aside the acquisition proceedings i.e. Notifications under secs.4 and 6 of the Act as the same is nothing but colourable exercise of powers and the acquisition under the guise of public purpose for expansion of Vanana Industrial Estate SCA/24871/2006 5/12 JUDGMENT is, in fact, only for the aforesaid private company. It is also submitted that the land in question is in residential zone and therefore, also the proceedings are bad in law. The allegations of mala-fide are made in para 9 of the petition and it is submitted that with a view to give benefit to M/s.D.R. Garments Private Limited, the entire exercise is undertaken as there is clear nexus between one Lakhabhai Keshwala and director of the Company Shri Dilip Sondabhadra. It is also submitted that no individual notices inviting objections under sec.5-A of the Act are issued. Therefore, it is requested to allow the present petition. It is also further submitted that even when this Court is seized with the matter, the authorities have issued notification under sec.6 of the Act during the pendency of the present petition which is nothing but to overreach the process of the Court and therefore, it is requested to quash and set aside the notification under sec.6 of the Act. 6. The petition is opposed by Mr.Dipen Desai, learned Assistant Government Pleader for the respondent No.1 and Mr.R.M. Chhaya, learned advocate for the respondent Nos.2 to 4. They have specifically denied that the SCA/24871/2006 6/12 JUDGMENT acquisition proceedings are colourable exercise of powers and/or the acquisition is only for M/s.D.R. Garments Private Limited. It is also further submitted that in fact, no decision has been taken by the GIDC to allot the land in question to M/s.D.R. Garments Private Limited. It is submitted that after the acquisition, the land in question will be allotted to the prospective entrepreneur in accordance with the policy of the GIDC. It is also submitted that for industrial growth of the area and for expansion of the existing industrial estate, the lands are acquired for the expansion of Vanana Industrial Estate. It is also further submitted that the acquisition is undertaken as per the development plan of the GIDC. It is submitted that the petitioner is the owner of a plot admeasuring 319.65 sq.mtrs, being Plot No.30, part of Survey No.66/1, whereas the total acquisition is for 35964.67 sq.mtrs. It is submitted that after inviting objections under sec.5-A of the Act and after considering the objections, as the land in question is needed for the public purpose for expansion of the industrial estate, Notification under sec.6 of the Act has been issued / published. It is submitted that there is no provision under the Act for individual notices inviting objections under SCA/24871/2006 7/12 JUDGMENT sec.5-A of the Act. So far as the allegations of mala-fide made in para 9 of the petition are concerned, it is submitted that the persons against whom the allegations of malafide are made, are not party to the present proceedings and therefore, the same may not be considered. However, it is submitted that even otherwise there is no substance in the allegations of malafide, as no decision has been taken by the authorities to allot the land in question which is sought to be acquired to any particular one company and the land will be allotted to prospective entrepreneur as per the prevailing policy of the respondent Corporation in accordance with law. It is also submitted that as soon as the attention of the authority was drawn with regard to encroachment made by M/s.D.R. Garments Private Limited, the same was removed. It is submitted that so far as the contentions raised by the petitioner with regard to requirement of the land in question for the public purpose is concerned, once declaration under sec.6(3) of the Act is made, it is to be presumed that the land is needed for public purpose and therefore, it is requested to dismiss the present petition. SCA/24871/2006 8/12 JUDGMENT 7. Heard the learned advocate appearing on behalf of the respective parties. 8. It is the case on behalf of the petitioner that the acquisition of the land in question is colourable exercise of power and the land in question is sought to be acquired for one private company namely M/s.D.R. Garments Private Limited. Some allegations of malafide are also made in para 9 of the petition. However, it is to be noted that the persons against whom the allegations of malafide are made, are not joined as party to the present proceedings. The petitioner has apprehended that the land in question is sought to be acquired for M/s.D.R. Garments Private Limited Company, in view of the fact that the said M/s.D.R. Garments Private Limited Company had encroached upon some land of the GIDC and had put up construction of compound wall for which a complaint was made even through the Chief Minister's Complaint Redressal Forum and thereafter, the compound wall was demolished and the encroachment was removed. Merely M/s.D.R. Garments Private Limited had encroached upon the land and thereafter the acquisition proceedings are initiated, it cannot be SCA/24871/2006 9/12 JUDGMENT presumed that the land in question is sought to be acquired for M/s.D.R. Garments Private Limited only. The petitioner has heavily relied upon the reply dtd.30/10/2006 given by the Regional Manager, GIDC, Junagadh to the petitioner to the application made by the petitioner under Right to Information Act, more particularly, reply to question No.8. However, the reply to the question No.8 seems to be very vague and ambiguous. From the said reply, it cannot be said that the land is to be allotted to M/s.D.R. Garments Private Limited only. Even otherwise, in the additional affidavit filed on behalf of GIDC, it is submitted on oath that no request for allotment of the land under acquisition has been made by M/s.D.R. Garments Private Limited and that no decision is taken by the GIDC for allotment of the land under acquisition only in favour of M/s.D.R. Garments Private Limited, as alleged by the petitioner. It it also further submitted in the affidavit-in-reply that after the land acquisition proceedings are over, the land shall be made available to the prospective entrepreneur as per the prevailing policy of the respondent Corporation. Mr.Chhaya, learned advocate appearing on behalf of the GIDC has also made a statement at the bar SCA/24871/2006 10/12 JUDGMENT under the instructions from the officers of the GIDC that after acquisition the land in question would not be allotted only to M/s.D.R. Garments Private Limited but the land would be allotted as per the policy of the GIDC in accordance with law. Under the circumstances, the impugned acquisition which is for expansion of Vanana Industrial Estate which is public purpose, cannot be said to be colourable exercise of powers and/or malafide. 9. Now, so far as the challenge to the notification under sec.6 of the Act is concerned, it is the contention on behalf of the petitioner that no individual notices under sec.5-A of the Act as required to be served upon the petitioners, has been issued upon the petitioners. There is no such provision under the Act to issue individual notices to submit the objection against the acquisition. On considering the Affidavit-in-reply, it appears that under sec.6 of the Act has been issued / published after inviting objections under sec.5-A of the Act and after considering the same. It is also required to be noted that once notification under sec.6 of the Act has been issued, such a declaration under sec.6 shall be conclusive evidence that the land is needed for public purpose under sec.6(3) of the Act. It is also required to be noted at this stage SCA/24871/2006 11/12 JUDGMENT that so far as the petitioner is concerned, he is owner of a plot admeasuring 319.65 sq.mtrs being Plot No.30, part of Survey No.66/1, whereas the total acquisition is for 35964.67 sq.mtrs. of the land and looking to the Affidavit- in-reply filed by the Special Land Acquisition Officer, it appears that after following due procedure as prescribed under the Act and after considering the report as contemplated under sub-sec.(2) of sec.5-A of the Act, the State Government has been pleased to issue a declaration as contemplated under sec.6(1) of the Act on 19/6/2007. As stated hereinabove, declaration under sec.6 of the Act is conclusive evidence with respect to the need and public purpose. Under the circumstances, when the land in question is sought to be acquired for expansion of Vanana Industrial Estate, which is a public purpose, there is no substance in the present petition. 10.For the reasons stated above and considering the Affidavit-in-reply and Additional Affidavit-in-reply and when the land in question is sought to be acquired after following due procedure under the Act and when there is no substance in the allegations of malafide and that the acquisition proceedings are colourable exercise of SCA/24871/2006 12/12 JUDGMENT powers, the petition deserves dismissal and is accordingly dismissed with a direction that the respondent No.2 – GIDC shall act as per the Additional Affidavit-in-reply, and shall allot the land in question after acquisition in accordance with law and as per the policy of the GIDC and shall not allot the land only to M/s.D.R. Garments Private Limited de-hors the policy and against the provisions of the law. [J.R. VORA, J.] [M.R. SHAH, J.] rafik