STATE OF GUJARAT v. DASHRATHLAL FAKIRBHAI — 1973 DIGILAW 102 (GUJ)

M. C. TRIVEDI, M. P. THAKKAR, J. ( 1 ) THIS judgment will dispose of two cross appeals arising out of the judgment rendered by the learned Civil Judge (Senior Division) Ahmedabad (Rural) at Narol in jurisdiction civil suit No. 52 of 1967 on 30th November 1967. The two appeals are First Appeal No. 1062 of 1968 by the State and the Special Land Acquisition Officer who were original defendants and First Appeal No. 1063 of 1968 by the original plaintiff. Both the sides have filed the appeals because the Trial Court has decreed the suit partly and both the sides feel aggrieved to the extent they have failed. ( 2 ) THE main controversy in the suit centres around the validity of the notification under sec. 4 of the Land Acquisition Act (hereinafter referred to as the Act) issued by the competent authority for the purpose of acquiring the land belonging to the plaintiff admeasuring 5 acres and 39 gunthas comprised in S. No. 9 of village Dani Limda situated beyond the limits of the Municipal Corporation of Ahmedabad on December 19 1957 The urgency clause under sec. 17 (4) of the Act was applied and inquiry under sec. 5 (A) of the Act was dispensed with. The said notification under sec. 4 was followed by the consequential notification under sec. 6 of the Act which was issued on August 5 1958 The validity of both these notifications was called into question by the plaintiff in the suit giving rise to the present appeals instituted on September 22 1961 in the Court of the Civil Judge (Senior Division) at Ahmedabad. The acquisition was for a public purpose namely slum clearance housing and roads. It is rather unfortunate that a dispute concerning lands which were notified for acquisition for a purpose of such urgency has remained unresolved for as many as 12 years till now. ( 3 ) THE impugned notification under sec. 4 was challenged on numerous grounds. We will however refer to only such grounds as have been pressed upon us in the course of the present appeals. The challenge to the notification is mainly based on the ground that the urgency clause under sec. 17 (4) of the Act has been wrongly applied notwithstanding the fact that the land in question in the submission of the plaintiff is neither waste land nor arable land. The challenge to the notification is mainly based on the ground that the urgency clause under sec. 17 (4) of the Act has been wrongly applied notwithstanding the fact that the land in question in the submission of the plaintiff is neither waste land nor arable land. The Trial Court upheld the contention and came to the conclusion that the impugned notification under sec. 4 in 60 far as it applied the urgency clause under sec. 17 (4) of the Act and dispensed with the inquiry under sec. 5 (A) of the Act was liable to be struck down. The learned Trial Judge was however of the opinion that the vulnerable portion of sec. 4 was separable from the impugned notification under sec. 4 and therefore the notification in its entirety was not liable to be struck down. In this view of the matter he decreed the plaintiffs suit partly and granted a declaration that that part of the impugned notification under sec. 4 whereby the urgency clause was applied and the inquiry under sec. 5 (A) was dispensed was illegal. He however sustained the validity of the rest of the notification. In view of the fact that the notification under sec. 6 was issued without holding the inquiry under sec. 5 (A) of the Act having regard to the fact that the inquiry was dispensed with under sec. 17 (4) of the Act the learned Trial Judge invalidated the said consequential notification under sec. 6 as well. The plaintiff has preferred the present appeal by reason of the fact that the rest of the notification under sec. 4 barring the clause dispensing with the inquiry under sec. 5 (A) has been upheld and sustained. In other words the plaintiff has approached this Court praying that the entire notification under sec. 4 should be struck down on the premise that the vulnerable portion is not separable from the rest of the notification and that the notification must stand or fall in its entirety. The State on the other hand has filed the cross appeal with the end in view to challenge the finding of the learned Trial Judge that the urgency clause was wrongly applied and that the notification under sec. 4 to the extent that it dispensed with the inquiry under sec. 5 (A) was invalid as also in order to challenge the finding that the notification under sec. 4 to the extent that it dispensed with the inquiry under sec. 5 (A) was invalid as also in order to challenge the finding that the notification under sec. 6 was on that account rendered invalid. ( 4 ) WE will deal with the appeal preferred by the original plaintiff in the first instance. Counsel for the appellant plaintiff has urged that the Trial Court was in error in holding that that part of the impugned notification under sec. 4 which was held to be invalid was separable from the valid portion. It was argued that the Collector had no competence or jurisdiction to hold an inquiry under sec. 5 (A) since the time-limit of 30 days for filing objections had expired long back. The submission in substance was that once the Court came to the conclusion that the urgency clause was wrongly applied and the inquiry under sec. 5 (A) was wrongly dispensed with the notification in its entirety was liable to be struck down. ( 5 ) THE proposition that the invalid part of a notification under sec. 4 to the extent that the urgency clause is wrongly applied and to the extent that the inquiry under sec. 5 (A) is wrongly dispensed with can be severed and that the notification in its entirety need not be struck down is covered by two Division Bench decisions of this Court. The first is the decision in Hiralal Harjivandas and others v. State of Gujarat and others rendered by J. M. Shelat C. J. as he then was and J. B. Mehta J which is reported in 5 Gujarat Law Reporter 924. The conclusion reached by the Division Bench is reflected in paragraph 15 of the judgment which is in the following terms:-WE are therefore of the view that the impugned notification falls within the doctrine of severability as summarised in Chamarbaugwallss case and we would therefore be justified in striking off the invalid part of the notification issued under sec. 4 (1) road with sec. 17 (4) and also the notification under sec. 6. But we would not be justified in striking off the rest of the notification under sec. 4 (1) which in our view is valid and enforceable. Order accordingly. We further direct that the Officer appointed by the Government will institute an enquiry under sec. 4 (1) road with sec. 17 (4) and also the notification under sec. 6. But we would not be justified in striking off the rest of the notification under sec. 4 (1) which in our view is valid and enforceable. Order accordingly. We further direct that the Officer appointed by the Government will institute an enquiry under sec. 5a and hear the objections of the petitioners if any in accordance with the provisions of that section after giving reasonable time to the petitioners in writing for raising their objections to the acquisition. Since the petitioners have substantially succeeded in this petition the respondents will pay to the petitioners the costs of this petition. This decision was followed by another Division Bench of this High Court in a group of Special Civil Applications (Nos. 460 635 and 663 and 572 of 1962) decided on 9/10th August 1965 P. N. Bhagwati J. as he then was speaking for the Court dealt with this question in the following words - now it is clear on a true construction of sec. 17. sub-sec. (4) that the Government can give a direction dispensing with the inquiry under sec. 5a only if it forms an opinion that there is urgency and that the land proposed to be acquired is waste or arable land. The opinion which the Government has to form as a pre-requisite to the exercise of the power to give a direction under sec. 17 sub-sec. (4) must relate to both to the urgency as well as to the nature and condition of the land. Both these matters are left to the opinion of the Government and are matters which are required to be subjectively determined by the Government. If the Government forms the necessary opinion in regard to both these matters the correctness of the opinion cannot be challenged and the sufficiency of the reasons on which the opinion is based cannot be questioned and the direction cannot be assailed If however the Government has formed no opinion at all on either of these two matters or the opinion formed is based on reasons which are not relevant to the declaration of the objective fact regarding which the opinion is formed in either of these two cases the direction issued can be successfully challenged as not being in accordance with law. Navnitlal v. State of Bombay (1960) 62 Bom. L. R. 622. Navnitlal v. State of Bombay (1960) 62 Bom. L. R. 622. This is the test which must be applied to determined the validity of the direction issued by the Government under sec. 17 sub-sec. (4) and if this test is applied it is clear that in the present case the Government did not apply its mind and form an opinion in regard to the objective fact whether the lands in question were waste or arable lands before issuing direction under sec. 17 sub-sec. (4) in the first notification under sec. 4. The only matter to which the Government applied its mind was the urgency of the re quirement and the Government proceeded on the footing as if that was the only matter in regard to which it was necessary to form an opinion before it could act under sec. 17 sub-sec. (4 ). The direction given under sec. 17 sub-sec. (4) obviously cannot therefore be sustained. This view which we are taking is completely in accord with the decision of the Bombay High Court in Navnitlals case (Supra) where in regard to a direction given in the same terms a Division Bench of the Bombay High Court held that the direction was invalid since the condition precedent to the exercise of the power to give the direction was not fulfilled. We must there fore following that decision hold that the direction issued in the present case must be set aside; but the question is:- does it have the effect of vitiating the whole of the first notification under sec. 4. The answer is clearly in the negative. The power of the Government to issue a notification under sec. 4 and the power of the Govern ment to issue a direction under sec. 17 sub-see (4) are two distinct powers and merely because the exercise of the latter power is invalid it does not render the exercise of the former power bad and ineffective. It is no doubt true that in Navnitlals case the Bombay High Court set aside the whole of the notification under sec. 4 but as pointed out by Shelat C. J. in Hiralal v. State (1964) V. G. L. R. 924 severability of the direction under sec. 17 sub-sec. 4 from the rest of the notification under sec. It is no doubt true that in Navnitlals case the Bombay High Court set aside the whole of the notification under sec. 4 but as pointed out by Shelat C. J. in Hiralal v. State (1964) V. G. L. R. 924 severability of the direction under sec. 17 sub-sec. 4 from the rest of the notification under sec. 4 was not raised on behalf of the State before the Bombay High Court in Navnitlals case and the decision in Navnitlals case cannot therefore be regarded as an authority for the proposition that where the direction is invalid the whole of the notification under sec. 4 must be set aside. This Court in Hiralals case (Supra) held that the direction under sec. 17 sub-sec. (4) was severable from the rest of the notification under sec. 4 and therefore. even if the direction under sec. 17 sub-sec. (4) was invalid the rest of the notification remained intact and could not be struck down. We cannot therefore accede to the argument of the petitioners that the whole of the notification under sec. 4 should be declared invalid. We merely strike down the direction under sec. 17 sub-sec. 4 contained in the first notification under sec. 4. This of course would have the effect of invalidating the notification issued by the State Government under sec. 6 for admittedly no inquiry under sec. 5a was held by reason of the giving of the direction under sec. 17 sub sec. 4 and without an inquiry under sec. 5a the notification under sec. 6 could not be issued by the State Government. The notification issued by the State Government under sec. 6 corresponding to the first notification under sec. 4 must therefore be struck down as invalid. In view of these two decisions prima facie there should appear no difficulty in upholding the finding recorded by the learned Trial Judge which is in conformity with the view expressed by the High Court therein. Counsel for the appellant-plaintiff however argued that those two decisions were rendered per in curiam and that he was fortified in his submission by a decision of another Division Bench of this High Court. Counsel for the appellant-plaintiff however argued that those two decisions were rendered per in curiam and that he was fortified in his submission by a decision of another Division Bench of this High Court. Raliance in this connection was placed on Natverlal Jerambhai v. State of Gujarat 12 Gujarat Law Reporter 146 Support is sought from the following passage in Natwarlals case :-THE period within which the objections are to be filed is an essential requirement and it is only these objections which are filed within the period provided in the section that can be considered. The consideration of the objections filed within the statutory time is a condition precedent to exercise of power under sec. 5a of the Act and it cannot be extended by deciding to take into consideration objections filed beyond the statutory period. We are aware of the fact that the Government is not bound by the report of the Collector under sec. 5a of the Act and also that the decision of the appropriate Government on the objections shall be final. The statute casts a duty on the officer to report and the Government is bound to consider the same before issuance of notification under sec. 6 of the Act. What is final is the decision of the appropriate Government on the objections i. e. the decision on merits. The Government can consider only those objections which are filed within the period of 30 days as provided in sec. 5a of the Act. The said requirement is also a condition precedent to the exercise of power by the appropriate Government under sec. 6 of the Act. It is therefore clear that this Court can have no jurisdiction to issue a direction to the Collector to receive the objections if filed beyond the statutory period. The aforesaid decisions of this Court were decisions per incuriam as the Collectors position while exercising powers under sec. 5a of the Act was not noticed by the Court or was not brought to the notice of the Court and therefore cannot have the force of binding authority. The notification under sec. 4 (1) of the Act contained a direction for dispensing with the inquiry under sec. 5a of the Act. Admittedly sec. 5a of the Act gives to the person affected a right to file objections within 30 days from the date of publication of the notification under sec. The notification under sec. 4 (1) of the Act contained a direction for dispensing with the inquiry under sec. 5a of the Act. Admittedly sec. 5a of the Act gives to the person affected a right to file objections within 30 days from the date of publication of the notification under sec. 4 of the Act. There is no dispute that the said statutory period has expired in the present cases. It is to be noted that in these cases the notifications are required to be quashed because the Government has failed to comply with the provisions of sec. 17 and (4) of the Act. The notifications are not required to be quashed for any fault of the petitioners. Under the law petitioners are entitled to compensation at the price prevalent on the date of the notification under sec. 4 of the Act. There is no reason why the citizens should be deprived of the statutory right of receiving compensation at the price prevalent on the date due to the fault of the Government in exercising powers under sec. 17 (1) and (4) of the Act. With due deference to the learned Judges we are constrained to say that the aforesaid observations made by them are unjustified and unwarranted. They were saying so with respect labouring under a misconception in assuming that the decision in Hiralals case (supra) were rendered per incuriam by reason of a material aspect being over-looked. We are constranined to hold that the decision rendered in Natverlals case itself is rendered per incuriam and is not binding for the reasons which will become manifest in a moment. The criticism that decision in Hiralals case and in Ishverlals case is rendered per incuriam is erected on the premise that the Collector has no competence or jurisdiction to hear the objections lodged by a person whose land is placed under acquisition once the statutory time limit of 30 days has expired. With respect to the learned Judges this premise has been wrongly assumed. There was and there still is a rule in existence framed by the State Government under sec. 55 of the Act which empowers the Collector to extend the time limit for filing the objections. With respect to the learned Judges this premise has been wrongly assumed. There was and there still is a rule in existence framed by the State Government under sec. 55 of the Act which empowers the Collector to extend the time limit for filing the objections. Relevant rules 1 and 2 framed by the then State of Bombay under notification No. 9173 R. D. dated October 4 1926 may be quoted in this connection :- in exorcise of the powers conferred by sec. 55 of the Land Acquisition Act 1894 (I of 1894) hereinafter referred to as the Act the Governor-in-Council is pleased to make the following rules for the guidance of officers in dealing with objections lodged under sec. 5a of the Act:-1 Whenever any notification under sec. 4 of the Act has been published but the provisions of sec. 17 have not been applied and the Collector has under the provisions of sec. 4 (1) issued notices to the parties interested:- and on or before the last day fixed by the Collector in those notices in this behalf any objection is lodged under sec. 5 (2) firstly the Collector shall record the objection in his proceedings. Secondly the Collector shall consider whether the objection is admissible according to these rules. 2 To be admissible (a) an objection must be presented is writing by a party interested in the notified land and must be presented within thirty days after the date of publication of the notification under sec. 4 or within such period as may be axed by. the Collector:- (b) it must allege some specific objections such as these:- (I) the notified purpose is not genuinely or properly a public purpose (II) the land notified is not suitable for the purpose for which it is notified; (III) the land is not so well suited as other land; (IV) the area proposed is excessive (V) the objectors land has been selected maliciously ar vexatiously; (VI) the acquisition will destroy or impair the amenity of historical or artistic monuments and places of public resort; will take away important public rights of way or other convenience or will desecrate religious buildings graveyards and the like. ( 6 ) IT is abundantly clear on examination of rule 2 that the time limit of the 30 days contemplated by sec. 5-A for presentation of the objections can be extended by the Collector. ( 6 ) IT is abundantly clear on examination of rule 2 that the time limit of the 30 days contemplated by sec. 5-A for presentation of the objections can be extended by the Collector. We have no doubt that if these rules had been brought to the notice of the learned Judges who decided Natverlals case the view would not have been taken by them that the Collector has no legal competence to entertain any objections after the expiry of the dead line of 30 days envisaged by sec. 5a. The statutory rules in terms provide for such an eventuality. So also the attention of the Court was not called to the circumstance that the provision enabling a party whose lands are placed under acquisition to lodge objections is designed for the benefit of such a party and that the essence of the matter is that an opportunity is afforded to them before a decision is taken and before notification under sec. 6 is issued. The essence of the matter is giving of such opportunity not giving it within a particular number of days. There is no conceivable virtue or merit in affording a hearing within thirty days It is not as if the period of thirty days is of mystical significance and is surrounded by some magic halo. No principle or policy underlies the selection of the period. Some time limit has to be provided for the sake of convenience and that is why the tenure of 30 days was hit upon. There is no rationale underlying the selection of this particular period. It is not as if the success or failure of the objections or the validity of the decision on this question turns on whether or not the objections are lodged within these 30 fateful days. One can not detect any logos or ethos in investing now-or-never significance to this period. The party whose lands are placed under acquisition it is true may not have an unrestricted right to lodge objections beyond the time limit of 30 days embodied in sec. 5a. But that time limit operates as a limitation on the the right of the party and not as a limitation on the power of the Collector to hear the objections. 5a. But that time limit operates as a limitation on the the right of the party and not as a limitation on the power of the Collector to hear the objections. Surely the party whose lands are under acquisition cannot question the power of the Collector to hear the objections on any conceivable rational ground notwithstanding the fact that they have not lodged any such objections ? Surely a party cannot be reasonably expected to object to his being dealt with fairly and his being afforded an opportunity to show cause against the proposed acquisition notwithstanding the expiry of the dead line for filing objections ? Even if rules had not provided for extension of the time limit under no principle of law could it have been said that the Collector acted in violation of the principles of fair-play in affording him such an opportunity. All that the Collector does by extending the time limit of 30 days is to pay homage to the principles of natural justice and no more. He does a good turn to the land owner not an evil act. Even if the rules are silent the Courts usually read into the relevant provisions the principles of fair-play and natural justice and insist on compliance with such principles notwithstanding the fact that there is no positive command by the Legislature. Is it not therefore futile (it certainly is) to canvass that the Collector has no legal jurisdiction or competence to hear the person whose land is proposed to be acquired merely because the time limit for lodging such objections has expired? Besides such a situation has arisen (it cannot be ignored) in the context of the fact that by the nature of things a Court of law takes some time in deciding matters. The time occupied in pursuing a legal proceeding in a Court of law can scarcely be used as an alibi by the Court itself in order to shut the door for making amends. In any view of the matter therefore it cannot be said that the decision rendered by the High Court in Hiralals case (supra) and Ishverlals case (supra) is no longer good law having regard to the doctrine of per incuriam In fact the decision rendered by subsequently in Natverlals case must be said to be per incuriam. In any view of the matter therefore it cannot be said that the decision rendered by the High Court in Hiralals case (supra) and Ishverlals case (supra) is no longer good law having regard to the doctrine of per incuriam In fact the decision rendered by subsequently in Natverlals case must be said to be per incuriam. In our opinion the learned trial Judge was perfectly justified in holding that that part of the impugned notification under sec. 4 which applied the urgency clause under sec. 17 (4) and dispensed with the statutory inquiry under sec. 5a was separable and that the entire notification cannot be struck down. In taking the view to the aforesaid effect the learned trial Judge has merely followed the law laid down by the High Court in Hiralals case and Ishverlals case which in our opinion is good law binding to all concerned even today. We therefore do not see any substance in the appeal. The appeal fails and is dismissed. There will be no order regarding costs. The learned Assistant Government Pleader appearing on behalf of the State gives an undertaking that the Collector of Ahmedabad will issue a notice extending time for filing objections and requiring the plaintiff to lodge his objections within 30 days of the receipt of the said notice and that thereafter the Collector will proceed to decide the question in exercise of powers under sec. 5a in accordance with law. It must be clarified that it will be open to the Collector to proceed to issue a fresh notification under sec. 6 in case he comes to the conclusion that there is no merit in the objections. The learned Assistant Government Pleader gives an undertaking that such notice will be issued within 60 days of the signing of the judgment. ( 7 ) SO far as the cross-appeal filed by the State (First Appeal No. 1062 of 1968) is concerned the learned Assistant Government Pleader has vehemently argued that the learned Trial Judge was in error in holding that the urgency clause was wrongly applied and that the land in question was not arable land. He took us through the evidence and brought to our notice the relevant circumstances. It was however not possible for him to persuade us to accede to his arguments on account of two insurmountable difficulties in his way. He took us through the evidence and brought to our notice the relevant circumstances. It was however not possible for him to persuade us to accede to his arguments on account of two insurmountable difficulties in his way. The first difficulty was that the notification under sec. 4 itself does not record the satisfaction that the land in question is arable land. It is no doubt true that the as held in Hiralals case in such circumstances it is open to the State to show that notwithstanding the failure to make such a statement the competent authority had applied its mind to the relevant aspect and had reached the satisfaction to the effect that the land in question was arable land. But the State has not adduced any evidence whatsoever in the Trial Court. That is the first difficulty. The second difficulty arises on account of the circumstance that the very notification under challenge in so far as it affects the adjoining lands comprised in S. Nos. 14 15 and 384 has been struck down on this very ground (See the decision in Special Civil Applications Nos. 460 of 1962 625 and 662 of 1962 and 572 of 1962 rendered on 9th/10th August 1965 It is no doubt true that the said notification affects the adjoining lands covered by the same notification and that the impugned notification cannot be struck down merely on the ground that a portion of the very notification has been struck down. But then the reasoning which prevailed with the High Court will equally apply in this case having regard to the fact that the State has not adduced any evidence at the trial Under the circumstances we are of the opinion that the learned Trial Judge was justified in upholding the contention of the plaintiff in this behalf as also in striking down the impugned notification under sec. 6 which was issued as a consequence thereof. The judgment of the learned Trial Judge under the circumstances cannot be successfully assailed. The appeal fails and is dismissed. There will be no order regarding costs. Appeal dismissed. .