SCA/1689/2006 1/86 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1689 of 2006 WITH CIVIL APPLICATION No. 3460 of 2008 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 ? ========================================================= RAMNIKBHAI RAMJIBHAI & 1 - Petitioner(s) Versus STATE OF GUJARAT THRO. VILASINI RAMCHANDRAN,IAS OR & 5 - Respondent(s) ========================================================= Appearance : MR BM MANGUKIYA for Petitioner(s) : 1 - 2. MR DIPEN DESAI AGP for Respondent(s) : 1,2,3,5,6 MR JB PARDIWALA for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH SCA/1689/2006 2/86 JUDGMENT Date : 11/04/2008 C.A.V. JUDGEMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, order and/or direction quashing and setting aside the Notification issued by the respondents under sec.6 of the Land Acquisition Act (“the Act” for short) dtd.30/8/2005 in so far as the land of the petitioners bearing Revenue Survey No.254 of village Sola, Taluka Daskroi, District ; Ahmedabad, area admeasuring 5733 sq.mtrs. 2. At the outset, it is required to be noted that by way of impugned notification, the lands of ten land owners, inclusive of the petitioners' land, admeasuring 62,000 sq.mtrs., are acquired for the expansion of the existing Gujarat High Court complex as well as for providing other facilities and for the construction of building for various authorities like Gujarat State Judicial Academy, Gujarat State Legal Service Authority, High Court Legal Aid SCA/1689/2006 3/86 JUDGMENT Services Committee and the petitioners' land is admeasuring 5733 sq.mtrs. only out of total 62,000 sq.mtrs. of land be acquired. It is also required to be noted that sec.4 Notification came to be published on 17/8/2004 and thereafter Sec.6 Notification has been published on 30/8/2005 and even the possession of all the lands for which Notification under sec.6 of the Act has been published (inclusive of the petitioners' land), is already taken over by the competent authority and handed over to the High Court administration and not only that even Award under sec.11 of the Act, after following due procedure as required under sec.9 of the Act is also declared by the Special Land Acquisition Officer long back and except the petitioners, all other land owners have accepted the compensation and having not satisfied with the quantum of compensation, have submitted References under sec.18 of the Act. It is also required to be noted that even the petitioners have also submitted Reference Application under sec.18 of the Act under protest. 3. The petitioners were owners of the land bearing Revenue Survey No.254 admeasuring 5733 sq.mtrs. which is just adjacent to the present High Court complex. It appears SCA/1689/2006 4/86 JUDGMENT that facing difficulties in respect of shortage of Court Rooms, Chambers for the Judges, Central Library, Parking Facilities, Administrative Block, Committee Room, Storage Room, Auditorium, building for Gujarat State Judicial Academy, Chambers for Advocates, building for Gujarat State Legal Service Authority, building for High Court Legal Aid Services Committee etc. and for future expansion of the High Court, the Standing Committee of the Gujarat High Court, headed by the Hon'ble the Chief Justice, took up the issue of expansion of th High Court complex in its meeting held on 19/4/2001 and after due deliberation, resolved that the State Government be requested to acquire the lands which are adjacent to the existing High Court complex. By letter dtd.4/5/2001, High Court sent proposal to the State Government for acquisition of the certain lands inclusive of the petitioners' land pointing the necessity for expansion of the existing High Court Complex. Vide letter dtd.19/2/2002, the State Government conveyed its administrative approval for acquisition of land admeasuring 61,816 sq.mtrs. It appears that vide letter dtd.18/12/2003 additional proposal was sent by the High Court for acquisition of the additional land on the Western SCA/1689/2006 5/86 JUDGMENT side of the existing High Court complex. It appears from the proceedings and the pleadings that the State Government on 9/2/2004 appointed a high level committee comprising of the Principal Secretary-Finance Department, Secretary-Legal Department, Secretary- Road and Building Department and Registrar General of High Court of Gujarat, for monitoring expansion of the High Court complex. The said committee was to function under the guidance of the Hon'ble the Chief Justice. That thereafter, having satisfied with respect to the need of land for the expansion of the High Court Complex as per proposal made by the High Court dtd.4/5/2001 and additional proposal dtd.18/12/2003, Notification under sec.4 of the Act was issued on 17/8/2004, whereby the Collector, Ahmedabad declared his intention that the land in question and other lands mentioned in the Notification are needed for public purpose for expansion of the existing High Court. The petitioners submitted provisional objections dtd.13/9/2004 to the District Collector, Land Acquisition Branch. Over and above objecting to the acquisition of the land in question, the petitioners also sought some material and information with respect to the acquisition proceedings. By reply dtd.23/9/2004, the SCA/1689/2006 6/86 JUDGMENT petitioners were informed by the then Additional Special Land Acquisition Officer, Ahmedabad that till 13/9/2004 notice under sec.4(1) of the Act has not been issued and after notice under sec.4(1) of the Act is issued, the petitioners can submit their objections under sec.5A of the Act before the Competent Authority. That thereafter, notice under sec.4(1) of the Act was issued on 27/8/2004 calling upon the interested persons to submit their objections before the Special Land Acquisition Officer on or before 26/10/2004. It also appears from the said notice under sec.4(1) that it was so stated in the said notice under sec.4(1) of the Act that a personal hearing would be afforded to the interested parties who submits the objections on 26/10/2004. Being aggrieved by and dissatisfied with the communication dtd.23/9/2004, the petitioners preferred Special Civil Application No.13153 of 2004 before this Court for appropriate writ, order and/or direction directing the respondents of the said petition i.e. the District Collector, Ahmedabad and Special Land Acquisition Officer, Ahmedabad to supply all the materials which the respondents have collected for forming an opinion for issuance of the notification under sec.4 of the Act. It was also further prayed in the said SCA/1689/2006 7/86 JUDGMENT petition to direct the said respondents to supply all the materials which the petitioners have sought for vide representation dtd.13/9/2004. The said petition being Special Civil Application No.13153 of 2004 came to be dismissed by the Division Bench of this Court vide order dtd.8/10/2004. That being aggrieved by and dissatisfied with the aforesaid order dtd.8/10/2004, the petitioners preferred Special Leave Petition (Civil) No.5665 of 2005 before the Hon'ble Supreme Court with an application for condonation of delay. In the meantime, Notification under sec.6 of the act came to be published on 30/8/2005. The said S.L.P. came up for hearing before the Hon'ble Supreme Court on 13/4/2006 and the Hon'ble Supreme Court condoned the delay and disposed of the said S.L.P. by observing that the same would be without prejudice to the rights of the petitioners to seek information under Right to Information Act. That even before the Hon'ble Supreme Court disposed of the aforesaid S.L.P., the petitioners have preferred the present Special Civil Application on 27/1/2006 for an appropriate order to quash and set aside Notification under sec.6 of the Act. It appears that at the time of hearing of S.L.P. before the Hon'ble Supreme Court on 13/4/2006, attention of the SCA/1689/2006 8/86 JUDGMENT Hon'ble Supreme Court was not drawn with respect to the Notification under sec.6 of the Act already issued on 3o/8/2005, nor with respect to filing of the present Special Civil Application challenging Notification under sec.6 of the Act. 4. Present Special Civil Application came up for hearing before the Division Bench of this Court on 6/2/2006 and Mr.Mangukiya, learned advocate appearing on behalf of the petitioners stated before the Court that on earlier occasion, Special Civil Application No.13153 of 2004 was filed before this Court wherein compliance of sec.5A of the Act was challenged, but the same came to be dismissed by the Division Bench of this Court by judgement and order dtd.8/10/2004, against which S.L.P. No.5665 of 2005 has been preferred and the same is scheduled to be heard after Summer Vacation. Therefore, the Division Bench adjourned the present Special Civil Application for four weeks by observing that for the present there is no need to hear the petition challenging declaration made under sec.6 of the Act since it will be governed by the result of the S.L.P. At this stage it is required to be noted that somewhat incorrect statement was made by the learned advocate appearing on behalf SCA/1689/2006 9/86 JUDGMENT of the petitioners when the matter was heard on 2/6/2006 to the effect that in Special Civil Application No.13153 of 2004, non-compliance of sec.5A of the Act was challenged. As stated hereinabove, what was challenged by the petitioners in the Special Civil Application No.13153 of 2004 was the communication dtd.23/9/2004 and it was prayed for appropriate writ, order and/or direction to direct the respondents of the said Special Civil Application to supply the materials and informations sought by the petitioners vide letter dtd.13/9/2004. It appears from the record and proceedings that thereafter the present Special Civil Application is adjourned at least for more than 29 times and looking to the orders all through out, it is the learned advocate for the petitioners who has sought time on all the occasions and no attempts were made by the learned advocate appearing on behalf of the petitioners to see that the matter is heard effectively and/or any appropriate order is obtained. That thereafter, present Special Civil Application was notified before this Court on 28/2/2008 and though the matter was called out twice, learned advocate appearing on behalf of the petitioners was absent. However, in the interest of justice and as a last SCA/1689/2006 10/86 JUDGMENT chance, this Court adjourned the matter to 29/2/2008 observing that on that day even in absence of the learned advocate for the petitioners, the matter will be proceeded further ex-parte. On 29/2/2008, learned advocate appearing for the petitioner prayed for time on personal ground and hence the matter was adjourned to 3/3/2008. On 3/3/2008, learned advocate for the petitioners submitted a Draft Amendment for permitting them to join High Court of Gujarat through Registrar General, Secretary-Legal Department and Additional Chief Secretary-Road and Building Department, as party respondents and to add certain additional pleadings in the memo of the present petition. It is required to be noted that present petition was required to be dismissed on the ground of non-joinder of proper parties, as the High Court, for whose benefit the lands were sought to be acquired, was not joined as party to the proceedings. However, to do complete justice, this Court allowed the Draft Amendment. Thereafter, Affidavit-in-Replies are filed by the present Special Land Acquisition Officer; the then Special Land Acquisition Officer; State Government as well as High Court. This Court has heard the learned advocates appearing on behalf of the respective parties SCA/1689/2006 11/86 JUDGMENT at length. 5. Mr.Mangukiya, learned advocate appearing on behalf of the petitioners has challenged the Notification u/sec.6 of the Act mainly on the following grounds:- (i) that proper opportunity has not been given to the petitioners to submit the objection with respect to the need of the land in question by the High Court, as contemplated under sec.5A of the Act; (ii)that relevant materials sought by the petitioners to make effective representation under sec.5A of the Act, have not been provided till today though the same have been repeatedly asked by the petitioners; (iii)that there was no proper/sufficient material either before the Special Land Acquisition Officer or before the State Government with respect to need of 62,000 sq.mtrs. of land by the High Court. (iv)that the land available with the High Court at present is sufficient which can be utilised for expansion of the High Court and therefore, there is no need to acquire the land in question; (v)that there are other lands in the surrounding area reserved by the Ahmedabad Urban Development Authority (AUDA) under Town Planning Scheme which can SCA/1689/2006 12/86 JUDGMENT be utilised for expansion of the High Court; (vi)that even on the other side of the existing High Court complex, there is Government Waste Land which can also be used for expansion of the High Court and for other authorities; (vii)that there was no sufficient data available with the Special Land Acquisition Officer and/or State Government with regard to the actual measurement of the additional court rooms, chambers, auditorium, central library, building for State Judicial Academy, building for State Legal Aid Committee, Legal Services Authority etc. and therefore, in absence of such material, the satisfaction with regard to the need for acquisition of the land has been vitiated; (viii)that as there is no need of the land in question and/or the land available with the existing High Court can be used and utilised for expansion of the High Court, the acquisition of the land in question is colourable exercise of powers, as the valuable land of the agriculturists have been taken away; (ix)that there is non-application of mind on the part of the State Government to arrive at the subjective satisfaction with regard to need to acquire the land in question for SCA/1689/2006 13/86 JUDGMENT the expansion of the High Court. 6. Mr.Mangukiya, learned advocate appearing on behalf of the petitioners has submitted that as held by the Hon'ble Supreme Court in catena of decisions, right available to the land owners for objecting to acquisition is a valuable right and is not an empty formality. It is submitted that at the time of submitting objections under sec.5A of the Act, land owners can object to the acquisition proceedings on the ground that there is no need to acquire the land in question and/or the land is not required for public purpose. It is submitted that personal hearing provided under sec.5A cannot be taken away lightly by the concerned authorities and it is not that the land owners are required to sought opportunity of personal hearing, but it is the duty cast upon the concerned authority to provide personal hearing. It is submitted that if personal hearing is not provided before issuance of the notification under sec.6 of the Act, entire proceedings are vitiated and sec.6 notification is required to be quashed and set aside. It is submitted that before making effective representation, certain materials are required which the petitioners have sought but the same SCA/1689/2006 14/86 JUDGMENT have not been provided either by the Special Land Acquisition Officer and/or by the State Government or by the High Court and therefore, the petitioners' right to make effective representation/objection has been taken away. 7. Mr.Mangukiya, learned advocate appearing on behalf of the petitioners has relied upon the decisions of Allahabad High Court in the case of Ram Charan Lal Vs. the State of Uttar Pradesh, reported in AIR 1952 Allahabad 752 by submitting that as held by the Hon'ble Allahabad High Court inspite of declaration under sec.6(1) of the Act, High Court can quash and set aside declaration/notification u/sec.6. 8. Mr.Mangukiya, learned advocate has also relied upon the decision of the Hon'ble Supreme Court in the case of Tej Kaur and others Vs. State of Punjab and others, reported in (2003) SCC 485 and in the case of Hindustan Petroleum Corpn.Ltd. Vs. Darius Shapur Chenai and others, reported in (2005) 7 SCC 627 and has submitted that sec.5A is an important stage in the acquisition proceedings and it is mandatory for the Land Acquisition Officer to conduct an inquiry and to afford an opportunity of hearing to the person objecting to the SCA/1689/2006 15/86 JUDGMENT acquisition. Relying upon the aforesaid decisions, it is submitted that hearing of the objections u/sec.5A of the Act must be effective and not mere formality and there must be appropriate application of mind with respect of public purpose by considering the relevant factors and rejecting irrelevant factors. 9. Mr.Mangukiya, learned advocate appearing on behalf of the petitioners has also relied upon the decision of the Hon'ble Supreme Court in the case of Smt.Somawanti and others Vs. State of Punjab and others reported in AIR 1963 SC 151, Mr.Mangukiya, learned advocate has also relied upon the decision of the Hon'ble Supreme Court in the case of Shri Farid Ahmed Abdul Samad and another Vs. the Municipal Corporation of the City of Ahmedabad and another, reported in (1976) 3 SCC 719 and has submitted that personal hearing as contemplated under sec.5A of the Act has to be afforded by the Collector and it is not required to be asked by the petitioners. He has also relied upon the the decision in the case of State of Tamil Nadu and another Vs. A.Mohammed Yousef and another, reported in (1991) 4 SCC 224, in support of his submissions that relevant materials must be provided to the land owners. SCA/1689/2006 16/86 JUDGMENT 10.Mr.Mangukiya, learned advocate appearing on behalf of the petitioners has submitted that present High Court premises is constructed only before 7 to 8 years and the area of the lands sought to be acquired under the impugned notification, is more than the area of the existing High Court Complex. It is submitted that while acquiring the land for the present High Court, the planner of the State must have considered all the aspects and requirement of the High Court for next 100 years, but, however, within a short span of 7 to 8 years, further land more than the existing High Court Complex is sought to be acquired. It is submitted by Mr.Mangukiya, learned advocate appearing on behalf of the petitioners that the land acquired by the Government for the purpose of housing the High Court is 1,36,927 sq.mtrs. With 1.2 Flow Space Index [FSI] and therefore, constructable area with the High Court is 1,64,312 sq.mtrs. and the built up area of the High Court premises is 59,545.45 sq.mtrs. and therefore, the available FSI of the High Court Complex as on today is 1,04,767 sq.mtrs. It is submitted that if the whole area sought to be acquired, further FSI would available to the High Court would be 1,99,200 sq.mtrs SCA/1689/2006 17/86 JUDGMENT and therefore, the total area available with the High Court at the end of acquisition would be 3,03,967 sq.mtrs. and this area cannot be used for the purpose of expansion of the High Court for next 1000 (thousand) years. It is submitted that the existing land available with the High Court is sufficient for expansion of the High Court and therefore, there is no need to acquire further lands. It is further submitted that the aforesaid aspect has not been considered either by the Special Land Acquisition Officer or by the State Government and to that extent, there is non-application of mind on the part of the concerned authority to have subjective satisfaction in respect to the need of the land by the High Court. 11.It is also further submitted by Mr.Mangukiya, learned advocate appearing on behalf of the petitioners that there was no proper assessment made and data provided with respect to the actual need i.e. what would be the area of the court rooms, chambers, auditorium, building, library and for other purposes, for which the lands are sought to be acquired and unless and until proper assessment is made and data is provided, any satisfaction in respect to the need to acquire the additional land, is vitiated. It is submitted that the SCA/1689/2006 18/86 JUDGMENT decision making procedure is not properly followed. 12.It is also submitted by Mr.Mangukiya, learned advocate appearing on behalf of the petitioners that assuming without admitting that there is need of additional land for expansion of the High Court and for other authorities, in that case also, there are other reserved plots available with Ahmedabad Urban Development Authority (AUDA) and other Government Waste Lands are also available with the State, and the said lands can be used and utilised for the expansion of the High Court Complex and therefore, the lands of the petitioners – agriculturists are not required to be acquired compulsorily. It is submitted that neither the Special Land Acquisition Officer nor the State has considered the aspect in respect to the availability of the other lands available with Ahmedabad Urban Development Authority (AUDA) and State and to that extent also the subjective satisfaction with regard to need of the land in question has been vitiated. It is submitted that thus, there is non-application of mind on the part of the State while arriving at the subjective satisfaction with respect to the need and availability of the other lands. 13.Mr.Mangukiya, learned advocate appearing on behalf of SCA/1689/2006 19/86 JUDGMENT the petitioners has submitted that from the reply of Additional Special Land Acquisition Officer, Ahmedabad dtd.12/3/2008, it is clear that even report under sec.5A was prepared by him and was sent by him to the District Collector on 26/8/2005 and the Collector thereafter sent his report under sec.5A to the State Government on 28/9/2005 for consideration of the State Government and notification under sec.6 of the Act has been issued and published on 30/8/2005 within one day which shows that the State Government has not applied its mind properly and/or there was no sufficient time available with the State Government to apply its mind to arrive at the subjective satisfaction with respect to the need for expansion of the High Court and therefore, the subjective satisfaction has been vitiated and therefore, the notification under sec.6 of the Act requires to be quashed and set aside. 14.It is further submitted by Mr.Mangukiya, learned advocate appearing on behalf of the petitioners that the provisional objections submitted by the petitioners have not been considered either by the Special Land Acquisition Officer or by the State Government. It is submitted that after the order passed by the Hon'ble SCA/1689/2006 20/86 JUDGMENT Supreme Court dtd.13/4/2006, the petitioners submitted representation asking for relevant materials and informations under Right to Information Act, but all the materials and informations sought by the petitioners have not been provided and thereby the petitioners have not been given fullest opportunity to submit their objections against the acquisition of their land and to point out that there is no deed to acquire the land in question, as either sufficient land is available with the High Court and some other reserved lands are available with AUDA and Government Waste Lands are available with the State and the said lands can be used for expansion of the High Court and therefore, the land of the petitioners in question are not required to be acquired. 15.Mr.Mangukiya, learned advocate appearing on behalf of the petitioners has relied upon various internal correspondences made by one authority to another authority and between the authority and the petitioners, in support of his submission that relevant materials sought by the petitioners have not been provided and thereby valuable right of the petitioners to submit effective objections against the acquisition of their land has been taken away. It is submitted that even SCA/1689/2006 21/86 JUDGMENT considering various correspondences, it appears that even the concerned authorities were in dark with regard to requirement of the land by the High Court for expansion and the need, as there was no assessment/data provided by the High Court with regard to measurement for each building, court rooms etc. It is also submitted that even the copy of the proposal made by the High Court to the District Collector to acquire the land in question,