ISMAIL ISAKJI PATEL v. STATE — 1983 DIGILAW 32 (GUJ)

P. S. POTI, J. ( 1 ) THE case of the petitioners in SCA 4379/84 is similar to the case of the petitioners in the other petition. The reliefs sought are also identical and therefore it will be sufficient for the purpose of this order to refer to the facts of the first of those cases. ( 2 ) THE prayer in these petitions is to set aside notifications dated 22-5-1980 and 4-7-1983 these being respectively notifications under S. 4 of the Land Acquisition Act and declaration under S. 6 of the Act. There is also a prayer that the possession of the properties should not be taken from the petitioners which is naturally consequential to the main relief. The petitioners are owners of land in Sy. No. 32/part. It is situated touching the southern border of the village Ankleshwar. The lands are said to be included within the limits of Ankleshwar Nagarpalika. Though the petitioners objected to the acquisition of the land after enquiry under S. 5 of the Land Acquisition Act was held the Government did not see reason to drop acquisition with regard to the petitioners land. The consequence was the issue of declaration under S. 6 of the Act. ( 3 ) THREE grounds are raised and urged at the hearing by Miss V. P. Shah counsel for the petitioners in both the cases in support of the prayer in the petition. It is said that in and around the lands sought to be acquired there are developed lands and therefore applying the policy of the Government not to acquire lands near such developed lands for the purpose of housing the present acquisition would not be permisible. The acquisition is evidently for the purpose of the Housing Board and it is said that the Housing Board must restrict its activities of construction after acquisition invoking the Land Acquisition Act to areas where already activities of comstruction for housing have not been conmenced. It is the petitioners case that Ankleshwar village is an area fully occupied by houses and since the plot in Sy. It is the petitioners case that Ankleshwar village is an area fully occupied by houses and since the plot in Sy. No. 32 sought to be acquired is situated adjoining such an area it would contravene the policy of the Government to acquire such land and such contravention would not be permissible as it will be discriminatory as held in the decisions in Maganbhai Vanarshibhai v. State (XVI 1975 GLR 839 ) and Hintedrakumar v. State (XXI 1980 GLR 83 ). It is then contended that acquisition is permissible only for an existing need or a need in the immediate future that the Gujarat Housing Board had started proceedings for acquisition of other land under an earlier notification and that land has itself not been fully utilised and therefore the present acquisition cannot be an acquisition justifiable as one either for an existing need or a need in the immediate future. The third limb of the argument of the petitioners counsel is that the acquisition must be found to be mala fide. In support of this plea it is said that the motive force behind such acquisition proceedings commenced in respect of Sy. No. 32 was the design of the President and Vice-President of the Ankleshwar Nagarpalika who had caused properties to be purchased in the names of their relatives in and around the plot sought to be acquired so that they may be able to dispose of such properties at a high price when Sy. No. 32 became developed land. Particular mention is made about the President one Mr. Jani having so acquired in the name of his wife and son-in-law land in Sy. No. 6. ( 4 ) IT is necessary here to mention a few facts which will furnish the back-ground for the acquisition in question Sy. Nos. 25 to 32 had been reserved for a public purpose in the development plan for the Ankleshar Municipality even as early as in 1968. This scheme of development was in force for 10 years and consequently that plan was in force for 10 years and that expired only on 1 By resolution of the Ankleshwar Municipality No. 148 this plan was revised on 31 prior to the expiry of 10 years so that the revised plan could be submitted to the Government. In that revised plan the proposal was to reserve these properties for the Gujarat Housing Board. In that revised plan the proposal was to reserve these properties for the Gujarat Housing Board. On 31-3-1978 the Gujarat Housing Board passed a resolution to take steps to acquire the said land. It is seen that originally the proposal to acquire was started by the Government for the purpose of public housing and the lands so acquired were handed over to the Gujarat Housing Board. At that time evidently on the estimate of land required for construction procedings for acquisition of only Sy. Nos. 25 to 31 were started. Sy. No. 32 which is a fairly large extent of land was left out at that time. It appears to have been found advisable to take proceedings for acquisition of. that land also later as a result of a demand survey conducted by the Municipality on 20-9-1978. Evidently the demand survey disclosed that there was need for more tenaments in the wake of the rapid industrialisation of the area. That was the case after activities of the O. N. G. C. were commenced in Ankleshwar. The Government informed the Housing Board by letter dated 26-12-1978 to move for appropriate steps to acquire the land comprised in Sy. No. 32. It is after this that the petitioners came into the picture by purchase of the property comprised in Sy. No. 32 on 2-5-1979. ( 5 ) IT is seen that on 21-11-1979 Ankleshwar Area Development Authority revised the development plan showing the land in Sy. Nos. 25 to 32 as reserved for the Gujarat Housing Board and sent this to the Government. The Government thereupon issued S. 4 notification on 17-7-1980 and after due enquiry under S. 5a published the declaration on 4 ( 6 ) NOW we will consider the contentions raised by the petitioners in these cases. Though we have not admitted the petitions we have the benefit of an affidavit filed by the Gujarat Housing Board in answer to the notice issued to the Board prior to admission. The main contention urged by the petitioners is based on the decisions of this Court to which we have already adverted to. It has been assumed that the decisions lay down a principle that in respect of acquisitions of land within a specified area of developed land the circular of the Government precludes steps being taken under the Land Acquisition Act. It has been assumed that the decisions lay down a principle that in respect of acquisitions of land within a specified area of developed land the circular of the Government precludes steps being taken under the Land Acquisition Act. Since this is a question of some importance concerning the purport of the decisions adverted to as understood and applied in many of the subsequent cases we refer to these decisions to appreciate their real import. ( 7 ) THE policy of the Government in regard to lands situated near developing areas to be aqcuired under the Land Acquisition Act may be understood for the purpose of this case with reference to two circulars one dated 12-2-1966 and the other dated 24 The first of these is really not a circular but is a letter addressed by the Revenue Deaprtment of the Government to the Housing Commissioner of the Gujarat Housing Board. It spells out the policy of the Government in that that letter purports to respond to the proposal for acquisition made by the Housing Board in a specific instance. It notices that the Housing Board proposes to place under acquisition the land in that part of the town which was developing. In such areas the people may be resorting to construction of residential houses of their own accord or by forming co-operative societies. Where such activity is going on the purpose or object of the Housing Board will not be promoted by acquiring land which is being so developed or land which would be developed as a necessary sequel. The object of the Housing Board being to provide accommodation to the extent possible to relieve the problem of scarcity of residences if in any area even without the Housing Board coming into the picture there would be construction of houses it would not be advisable to acquire land in such area as it may really be counter-productive. It is in areas where there are no such activities that the Housing Board should take up the responsibility of construction of houses under its schemes. It is this idea that is reflected in the circular of 1966. In this context the circular points out the difficulties that may be faced by the Board if it seeks to acquire land which the owners themselves want to possess for the purpose of constructing buildings therein. It is this idea that is reflected in the circular of 1966. In this context the circular points out the difficulties that may be faced by the Board if it seeks to acquire land which the owners themselves want to possess for the purpose of constructing buildings therein. That would lead unnecessarily to avoidable litigation and the Board would not get the land for a long time. Explaining this it was observed in that letter:therefore if the Board places under acquisition the lands at a distance of 1/4 to 1/2 mile from the area where the development activity has been commenced instead of such area the Board can easily acquire the lands. It is not as if any policy as to the distance between the land to be acquired and the developed land was pointed out in that letter or any such policy was laid down. The letter was only indicating that if the Board does not propose to acquire land which is either being actually developed or is likely to undergo development in the immediate future then it will not have to face litigation to get at possession of such land. ( 8 ) THE Circular of 24th July 1967 specifically refers to the policy laid down by the Government. This Circular was occasioned because the officers concerned with the acquisition for the Housing Board did not properly understand the instructions given in the confidential letter to which we have already adverted to. Consequent upon that certain problems had arisen and that was sought to be met by a clarification in the Circular of 24th July 1967. It was pointed out thereon that the idea was that the proposals of the Housing Board should not result in conflict between the Boards activity and private construction work. The Boards activities should in fact supplement private efforts in this behalf and not negate it. This would be possible if the Board would make discreet selection of sites for development. That would be the case if they resort to develop areas where the private establishments had not commenced construction work. The Board was told that where co-operative societies and private establishments had commenced construction work it will be proper to select lands situated at some distance from such areas. That would be the case if they resort to develop areas where the private establishments had not commenced construction work. The Board was told that where co-operative societies and private establishments had commenced construction work it will be proper to select lands situated at some distance from such areas. It was made clear in the said Circular that though they had laid down his guideline it should not operate to prevent processing acquisition cases where private establishments commence construction work after the Housing Board start proceedings for acquisition. It was also clarified that there was no intention to prohibit acquisition of land inside municipal limits. The last of the exceptions so pointed out which may be of relevance in this case is that the letter dated 1-2-1966 already adverted to was not to be applied to the acquisition of land reserved for the Housing Board in the Town Development Plan prepared under S. 7 (d) of the Bombay Town Planning Act 1954. The Bombay Town Planning Act provided in S. 7 (d) that the draft development plan submitted to the Government should generally indicate the manner in which the Development and improvement of the entire area within the jurisdiction of the local authority was to be carried out and regulated and among the matters it should also contain proposals for the reservation of land for the purposes of the Union any State any local authority or any other authority established by law in India. S. 7 (d) it may be noted only contemplated submission of a plan and not sanction thereof. Therefore where such a plan was submitted under S. 7 (d) and that plan reserved land to be acquired for the Housing Board such land was outside the scope of the Circular or in other words such land could be acquired irrespective of location of such land. S. 7 (d) is so longer applicable in the State and the provision corresponding to it S. 12 (k) of the Gujarat Town Planning and Urban Development Act 1976 must be understood in place of S. 7 (d) that being the corresponding provision. ( 9 ) NOW we come to the facts of the case and the contentions of the parties in the light of such facts. The location of Sy. No. 32 as seen from the plan supplied by the petitioner himself is on the immediate west of Sy. ( 9 ) NOW we come to the facts of the case and the contentions of the parties in the light of such facts. The location of Sy. No. 32 as seen from the plan supplied by the petitioner himself is on the immediate west of Sy. No. 31 which in turn lies west of a block comprised by Sy. Nos. 27 to 30. In fact Sy. Nos. 27 to 31 lie in one block and Sy. No. 32 is on the west of this block. North of this block is the Ankleshwar Village in which there is no construction activity as such. No doubt in some distant survey number it is said that there is a building. So is the case with the east where there are two or three buildings not immediately adjoining but there again there is no construction activity. There are no buildings at all on the west near about Sy. No. 32 and there is no case that thre is any construction activity on the west also. Therefore it is not as if because of any construction activity in that area it will be improper for the Housing Board to acquire land comprised in Sy. No. 32. No doubt we must notice that all lands north of Sy. No. 32 and the other survey numbers which form the same block along with it is a fully developed area with a number of residential houses. But there again it is not as if it is an area where because any construction activities are going on there will be development in Sy. No. 32 also. For a long time there has been no activity beyond the southern boundary of Ankleshwar Village and the fact that Ankleshwar Village was all along developed area did not result in any development on the plots lying south of the village boundary comprised in Sy. No. 27 to 32 We are indicating this to show that it is not as if there is any building activity or there would have been any building activity in the usual course in Sy. Nos. 27 to 32 just as there are no building activities in the survey numbers west south and east of them though they are adjoining the developed area of Ankleswar Village. Nos. 27 to 32 just as there are no building activities in the survey numbers west south and east of them though they are adjoining the developed area of Ankleswar Village. If the purport of the Circular is that the Gujarat Housing Board should not propose construction activity in an area which is either already developed or which would be developed in the near future considering the situation of the area that would not apply to Sy. Ns. 27 to 32 for they really form a part of the lands lying south of Ankleshwar Village which have not been developed at all. These survey numbers are of the same characteristics and may be said to belong to the same-class. Perhaps the area within the Ankleshwar Village limits has undergone development but that development has been restricted to the village limits. Therefore there is no specific objection in locating a housing colony for the Gujarat Housing Board adjoining the developed area. On the facts of this case it cannot be said that the Gujarat Housing Board was acting improperly in proposing a housing colony outside the limits of the Ankleshwar Village but adjoining its boundary Ankleshwar Village being a developed area. ( 10 ) NOW we will examine the two decisions to which advertence has been made to decide whether these decisions necessitate an approach different from that we have indicated earlier. The question that arose before this Court in Maganbhai Vanarashibhai v. State (XVI 1975 GLR 839 ) was whether it will be proper for the Government to depart from the guidelines set by itself in some cases. Of course the answer must be plain. If the Government lays down a policy as to the crietria to be adopted in determining whether land should be acquired or not that guideline though not statutory will have to be observed in all-cases and any departure therefrom in individual cases will. spell of arbitrariness. May be the departure is justified on the facts and circumstances of the case when perhaps the charge of arbitrariness is capable of being effectively answered. Barring such exceptional circumstances normally what is applicable to one case must be applicable to another. spell of arbitrariness. May be the departure is justified on the facts and circumstances of the case when perhaps the charge of arbitrariness is capable of being effectively answered. Barring such exceptional circumstances normally what is applicable to one case must be applicable to another. The Government having laid down a policy concerning the location of sites for the work of the Housing Board the question that had to be examined in the case was whether any departure from the policy in individual cases was permitted. Obviously the answer was it was not permissible in law. That answer the court gave in that case and nothing more. Referring to the two Circulars one of 1-2-1966 and the other of 24-7-1967 the court noticed that the purpose of acquisition for the Houing Board should not be defeated-by acquiring land where there were construction activities by individuals or by co-operative societies for erecting residential permises It is in this context that this Court said :the Government cannot resort to such policy in certain cases where it likes and depart from the said policy as it chooses. Having laid down 9 definite policy the Government cannot follow the irrational method of pick and choose. IT was not as if the Court was called won in this case to consider the scope and extent of the policy. The decision is not to be taken as an authority as to the scope and extent of the policy. On the other hand it need only be taken as laying down the rule that the policy must be universally applied. In the later decision in Hitendrakumar v. State (XXI GLR 83) the rule laid down by the earlier decision was followed by this Court. The situation was found to be identical with that in the earlier case. ( 11 ) THEREFORE it is clear that the decisions pointed out only specify the obligation of the Government to apply the same policy in all cases. In other words the circular of 1-2-1968 and 24 should have application in respect of all cases. As we have said the purpose of this circular is not that there should not be any proposal for construction of houses within any specified distance of a developed area. In other words the circular of 1-2-1968 and 24 should have application in respect of all cases. As we have said the purpose of this circular is not that there should not be any proposal for construction of houses within any specified distance of a developed area. It will be advisable for the Housing Board to avoid confrontation with land owners if they want their work to be expedited and such confrontation would arise when they select sites very near developed areas because the land owners would have proposals to develop them by themselves if they had not already begun such development work. The question there-fore would be whether the land proposed to be acquired by the Board is so situate as could be said to be either already in the process of development or which considering many factors including nearness is likely to be required for development by the landowners in the near future. It regard being had to the circumstances of a particular case the Government has reason to feel that such land would not be developed merely because of nearness to a developed area it need not be assumed that such land will also become developed area. It is open to the Government to accept a proposal by the Housing Board for construction in such land. Normally nearness to developed land may be a factor which will determine whether such land is likely to be developed. That need not be so in all cases. The best illustration is furnished by the facts of this case itself. That is because here the land lies outside the town boundary. Lands within the town boundary are all developed and had been developed much earlier but lands south of the boundary are generally undeveloped. Hence we do not think that despite the other circumstances which speak eloquently the nearness to the developed land should alone be taken as the determining criterion. The Gujarat Housing Board should be found entitled to develop such land in accordance with the policy of the Government. If the Government has understood it as enabling the Housing Board to develop the land Sy. No. 32 by constructing residential buildings therein in the facts and circumstances disclosed to us in the case we cannot say that the decision taken by the Government in this behalf is contrary to the policy laid down it the two Circulars mentioned. If the Government has understood it as enabling the Housing Board to develop the land Sy. No. 32 by constructing residential buildings therein in the facts and circumstances disclosed to us in the case we cannot say that the decision taken by the Government in this behalf is contrary to the policy laid down it the two Circulars mentioned. That is all that we are called upon to consider. The spirit of the policy laid down in examined here would not in any way be contravened by the Gujarat Housing Board constructing buildings in Sy. No. 32. ( 12 ) NOW we come to the second question. Whether a land is needed or likely to be needed is essentially a matter for satisfaction by the Government and when it reaches such satisfaction that is final. No doubt it is open to challenge on proof of vitiating factors such as mala fides but there is no such vitiating factor here and no plea of malafides against the Government has been urged. That apart the circumstances in the case eloquently speak to the need of a larger area for the construction of houses by the Gujarat Housing Board. In fact Sy. Nos. 25 to 32 had been reserved for public purposes even as early as in 1968. Though the first notification for acquisition did not take in Sy. No. 32 also that was proposed to be acquired later in 1979 for the purpose of construction of houses by the Gujarat Housing Board and it was justified by the demand survey made by the Municipality prior thereto. We have already indicated that it was an area where housing problem would naturally be acute with the rapid development consequent upon the activities of the O. N. G. C. The demand survey disclosed need for 3000 tenements and if in this background the Gujarat Housing Board thought it fit to acquire an extent of about 20 acres comprised in Sy. No. 32 also it cannot be said that there was no objectivity in the approach by the Government when it found that the land is needed for that purpose. ( 13 ) THE decision brought to our notice by learned counsel for the petitioners that in Shankarbhai Mahijibhai v. State (XXI (2) 1980 (2)GLR 239 ) does not according to us have any application to the facts of this case. ( 13 ) THE decision brought to our notice by learned counsel for the petitioners that in Shankarbhai Mahijibhai v. State (XXI (2) 1980 (2)GLR 239 ) does not according to us have any application to the facts of this case. That only laid down the rule that the expression is needed in S. 4 of the Land Acquisition Act has reference to the existing need and the expression is likely to be needed has reference to the future need. The Court said in that case : it cannot be gainsaid that a future need had reference to a foreseeable future. If land is not needed for a public purpose in a foreseeable future but is likely to be needed at a very distant or remote point of time for an anticipated need which may or may not come into existence then unless the need can be fore-seen in a foreseeable future no resort can be had to Sec. 4 as we have said the need is evident on the facts disclosed in the case. ( 14 ) THE plea of malafides also does not impress us. What is referred to is not the malafides of the Government which issued the declaration under S. 6. Reference is made to the mala fides of the President and Vice-President of Ankleshwar Nagarpalika. There are vague averments in the petition about their being interested in the purchase of properties in and around Sy. No. 32 by their relatives so that when the land is developed they could dispose of those lands at a profit. These averments have been denied not only on behalf of the Housing Board but also by an affidavit filed by Mr. Jani the ex-President which is on record of the case. There is no material to show despite this denial as to when properties near about were purchased who purchased these proprieties how they have been dealt with and what those purchasers have to do with any decision taken by the Gujarat Housing Board or by the Government or even by the Nagarpalika. Even the averment with regard to the period during which the gentlemen referred to as interested were President and Vice-President of the Nagaraplika is not specific. They are referred to in one context in the petition as President and Vice-President and in another one of them is referred to as the ex-President. Even the averment with regard to the period during which the gentlemen referred to as interested were President and Vice-President of the Nagaraplika is not specific. They are referred to in one context in the petition as President and Vice-President and in another one of them is referred to as the ex-President. We are indicating this only to show that the plea of mala fides has not been set by in such a way that any court could take serious notice of such a plea. Apart from that there is no material to support such plea of malafides since malafides can certainly be not of the Government or of the Housing Board in the light of the averments in the petition even if accepted as true. Hence this also must be discountenanced. ( 15 ) LEARNED counsel Mrs. Mehta appearing for the Housing Board reperred to the last clause in Circular of 24th July 1967 which exluded lands included for the purpose of the Housing Board in any plan submitted under S. 7 (d) of the Bombay Town Planning Act. As we have said if the reference be to S. 12 (k) which is the corresponding Section prior to the notification under S. 4 land comprised in Sy. No. 32 had already been included in the development plan submitted to the Government and there-fore such land would be outside the purview of the Circular of 1-2-1966. In this view we think it necessary to upohld the proceedings for acquisition in respect of Sy. No. 32 ( 16 ) WHAT we have said about the petitioners in the first of these petitioners is true of the petitioners in the other also and they have no different case. In the result we dismiss these petitions. The notice will stand discharged. No costs. Petition dismissed. .