Case: Abdul Husein Tayabali &amp; Ors Vs. State Of Gujarat &amp; Ors

2. The appellants are the owners of the lands in question situate at Ranoli, District Baroda. The 3rd respondent Company also owns about 140 acres of land in the same village. The appellants lands are either situate adjacent to and between the Companys lands and the railway lines or are enclaves surrounded by lands belonging to the Company. On July 22, 1961 the Stab Government issued a notification under Section 4 of the Act to the effect that the appellants said lands were or were likely to be needed for a public purpose, viz., for a fertilizer factory. That notification was withdrawn on September 11, 1962 as the lands were stated to be unsuitable for such a factory. The Government however issued the very next day a fresh notification under Section 4 in respect of the same lands, this time for the purpose of the 3rd respondent Company. Some of these appellants thereupon filed writ petitions challenging its validity. While these petitions were pending before the High Court this Court delivered its decision in what is known as the first Arora Case, AIR 1962 SC 764  . To get over the difficulties arising from that decision, first an ordinance and then the Amendment Act XXXI of 1982, were passed. The Amendment Act was brought into force from July 20, 1962 with retrospective effect. The Central Government thereafter made Rules under Section 55 of the Act called the Land Acquisition (Companies) Rules which were brought into force from June 22, 1963.On July 24, 1963 the State Government withdrew the notification dated September 12, 1962 whereupon the writ petitions filed by the appellants challenging the said notifications were withdrawn. In the meantime one D. K. Master, who was then the Special Land Acquisition Officer Baroda, started an inquiry under Rule 4 of the said Rules. On August 28, 1964 the State Government issued a notification under Section 4 stating that the appellants said lands were needed or were likely to be needed for the establishment of a factory of the 3rd respondent Company. The appellants filed their objections in the inquiry then held under Section 5-A but they were rejected. On October 18, 1985 the State Government issued Section 6 notification declaring that the said lands were needed for the factory of the 3rd respondent Company which it was stated was taking steps or engaging itself for manufacture of optical bleaching agents, intermediate dye-stuffs etc., which according to the Government was for a public purpose3. The appellants thereupon filed writ petitions from which these appeals arise challenging the two notifications dated August 28, 1964 and October 18, 1965 respectively. When these writ petitions came on for hearing, the State Government produced a notification dated October 11, 19 authorising the Special Land Acquisition Officers of the State to perform the functions of the Collector under Section 3 (c). On certain contentions having been raised on the basis of this notification, the High Court adjourned the hearing to enable the State Government to explain the circumstances and the reasons for issuing the said notification. On August 25, 1966 the said Master led a further affidavit clarifying the Governments position and the circumstances in which he performed the functions of the Collector under Section 3 (c)4. Before the High Court the appellants contended that the procedure laid down in the said Land Acquisition (Companies) Rules was not followed, that the purpose for which the acquisition was being made was not a public purpose within the meaning of Section 40 (1) (an), that the acquisition was made mala fide and in colourable exercise of power, that the State Government had not applied its mind to the facts of the case and lastly that the inquiry under Section 5-A was a quasi-judicial inquiry and that as an opportunity to be heard was not given to the appellants the proceedings under Section 5-A violated natural justice. Counsel, however, conceded that the inquiry under section 5A was administrative but contended that the appellants were still entitled to be heard before the State Government formed its satisfaction that the lands were required for the Company. The High Court rejected all these contentions and dismissed the writ petitions. Hence these appeals.

Reasoning: 7. It is not in dispute that as required by the said Rules the State Government had appointed a Land Acquisition Committee before it issued the notification under Sec 4In our view, these contentions cannot be upheld. Section 3 (c) defines a Collector to mean Collector of the District and includes Deputy Commissioner and any officer specially appointed by the Government to perform the functions of a Collector under the Act. Section 20 of the General Clauses Act, X of 1897 provides that where a Central Act empowers making rules, the expressions used in such rules, if made after the commencement of that Act shall have the same meaning as in the Central Act, unless there is anything repugnant in the subject or context. There being nothing repugnant in the subject or context, the word "collector" must have the same meaning in the rules as in Section 3 (c) which includes an officer specially appointed to perform the functions of the Collector. If therefore Master can be said to have been specially appointed to perform the functions of the Collector under the Act no challenge can be entertained as to his competence to make the inquiry and the report under Rule 4 of the said RulesIn our view, those words simply mean that as such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be "specially appointed", that is, appointed for the specific purpose of performing these functions. The word "specially" has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against a general appointment. The word "specially" thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act. It qualifies the word "appointed" and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector. It is the appointment therefore which is special and not the person from amongst several such officers. Besides, Section 15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a person to perform a certain function, such power can be exercised either by name or by virtue of office.There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by his name. Therefore even if the meaning of the word "specially" were to be that which is canvassed by Mr. Sanghi the Government could have issued separate notifications for each of the Sp. L. A. officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction. Instead of doing that, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection. Such a notification would have the same force as a separate notification in respect of each individual Sp. L. A. officer.Such a notification would mean that the Government thereby appoints each of the existing Sp. L. A. Officers to perform the functions of the Collector within their respective areas. It is true that the notification also declares that such of the Sp. L. A. officers who may be appointed in future are also authorised to perform the Collectors functions. That only means that whenever a person would be appointed as a Sp. L. N. officer for a Particular area, the notification would in effect invest him at the same time with the authority to perform the Collectors functions. The appointment of each of these officers therefore must be held to he special and not generalIn our view, the distinction is without difference.In the context of Section 3 (c) when an officer is authorised to perform the function of the Collector it means that he is appointed to perform those functions. The clause does not contemplate a separate or an additional post. What it means is that some officer who is already in the Government employment is authorised to work as a Collector for the purpose, of the Act. In this sense whether he is appointed or authorised to perform the Collectors functions he would be complying with the terms of that clauseThe Rule however provides that the officer conducting the inquiry has to hear the Company before making his report. Whether he has also to hear the owners of the land or not need not be decided in these appeals as Master had in fact given such an opportunity to the appellants by serving them with notices and recorded the statement of such of them who cared to appear before him. There is therefore no merit in that contentionWe do not find anything in Rule 4 or in any other Rule to warrant such a proposition.The inquiry, the report to be made consequent upon such inquiry, obtaining the opinion of the Land Acquisition Committee, all these are intended to enable the Government to come to a tentative conclusion that the lands in question are or are likely to be needed for a public purpose and to issue thereafter Section 4 notification.In our view, no objection to the appointment of Master to perform the functions of the Collector under Section 3 (c) or to his competence to make the inquiry and the report under Rule 4 or their legality can be validly made. It follows that the consent given by the State Government for initiating acquisition proceedings was validly given and was in compliance with the provisions of Part VII of the Act and the State Government could validly issue the impugned notifications. This disposes of Mr. Sanghis propositions 1 and 2Paragraph 10 of the petition containing the plea as to mala fides is in general terms without any particulars. Even such of the allegations that are to be found there are more against the 3rd respondent Company than against the State Government. These are based on the fact that the Company had sufficient land of its own and the acquisition was therefore being made so that the Company may acquire the neighbouring lands without utilising its own lands, It is true that the Company owns 140 acres of land. But as the affidavit of the Companys officer shows out of these 140 acres, 48 acres are ravine lands, unfit a factory sites. According to the Company, those lands however will be utilised for housing accommodation for its 700 workmen and for amenities for them such as play grounds, a sports club, a recreation centre and a co-operative consumer society, 40 acres out of the rest of the land have already been used for constructing some of the factories warehouses and godowns. As regards the balance of 60 acres, they do not form a com-pact block and contain in them small pockets belonging to the appellants. The Companys case was that unless these pockets are acquired and these 60 acres are made into one compact lot it would not be possible to use them as factory site. These lands are, besides, divided by a Nal which if filled up would block access to the appellants lands. Unless the enclaves are acquired, the said Nal which divides the Companys lands cannot be filled up. A portion of the lands in question is also necessary for an approach road leading to the proposed railway siding. Some of the lands will have to be kept open as otherwise the noxious fumes emitted by the factories would prove detrimental to the health of the neighbours13. The documents produced by Master reveal that the inquiry held by him was on the question whether the Company was trying to acquire excessive land. It is therefore not possible to say that the Government failed to apply its mind, having had Masters report before it as also the report under Section 5-A as regards the extent of land needed by the CompanyNo effort however was made to show that the Company would not really need 40 acres for housing purposes. As regards the proposed railway siding also there is no data to show that the Companys land near the railway lines would be suitable for constructing such railway siding. The appellants lands appear to be near the existing goods platform. It may be that the Government found on the basis of the reports before it that the appellants lands near the goods platform would be more suitable for the railway siding than the Companys land near the railway linesThe fact, on the other hand, that the Government cancelled its first notification on the ground that these lands were not suitable for a fertiliser factory gives a clear indication that it had applied its mind and negatives the allegation of mala fide exercise of power.The correspondence which the Company produced during the hearing of the petitions shows that as soon as the decision in the first Arora Case. AIR 1962 SC 764   (supra) was given the Government at once cancelled the notification in spite of the Companys request to continue it. This negatives any suspicion as to collusion between the Company and the acquiring authority. It is true that Masters opinion was adverse to acquisition but the Government was not bound to accept it. However, the fact that a responsible officer of the Government gave an adverse opinion is yet another indication that he was acting independently without being influenced by the Government or the Company. In our view, the appellant failed to establish their allegation either as to mala fides or the non-application of mind by the State Government. The third proposition of Mr. Sanghi therefore must failWe need only say that a similar argument was urged in Somavantis Case, (1963) 2 SCR 774  : (AIR 1963 SC 151  ) and rejected by this Courtt is not in dispute that during Section 5-A inquiry the appellants were heard and their objections were taken on record.Under Section 5-A. the Collector has to hear the objections, of the owner, take them on record and then submit his report to the Government. The Section also requires him to send along with his report the entire record of his inquiry which would include the objections. The report has merely recommendatory value and is not binding on the Government. The record has to accompany the report as it is for the Government to form independently its satisfaction. Both are sent to enable the Government to form it satisfaction that the acquisition is necessary for a public purpose or for the Company. It is then that Section 6 notification which declares that particular land is needed for either of the two purposes is issued. The Government thus had before it not only the opinion of Master but also all that the appellants had to say by way of objections against the proposed acquisition. The appellants therefore had an opportunity of being heard. Neither Section 5-A nor any other provision of the Act lays down that a second opportunity has to be given before the issuance of Section notification. This contention also therefore cannot be sustained.