BABUBHAI SHANTILAL PATEL v. STATE — 1993 DIGILAW 442 (GUJ)

RAVANI, J. ( 1 ) THE petitioners challenge the legality and validity of the acquisition proceedings and the award dated 7-1-1993 by filing this petition under Art. 226 of the Constitution of India. The petitioners are agriculturists. They are owners of land of different survey numbers of village Gaviyar, taluka choriasi, district Surat. In respect of the land of various survey numbers belonging to the petitioners. Notification dated 27/06/1989 under Sec. 4 of the Land Acquisition Act, 1894 (for short "the Act") was issued by the government. It was published in the Official Gazette on 10/08/1989 and in two newspapers on 25/07/1989 and Ju 26/07/1989. At village site it was published on 4/10/1989. ( 2 ) DECLARATION under Sec. 6 of the Act was made on 27/09/1990. It was published in the Official Gazette on 27/09/1990. Section 6 notification was published in newspapers on 8/12/1990 and Dec 9/12/1990. It was notified at village site on 8/01/1991. ( 3 ) SECTION 9 notice dated 2/12/1992 for hearing the petitioners was issued to the petitioners and the hearing was fixed on 19/12/1992. Ultimately the award has been passed on 7/01/1993. The petitioners have challenged the legality and validity of the acquisition proceedings and the award in this petition. ( 4 ) IT is contended that the notice of declaration under Sec. 6 (1) and (2) of the Act has not been published within one year from the last date of the publication of Sec. 4 Notification. It is an undisputed position that the last date of Sec. 4 Notification is 4/10/1991. That is the date on which Sec. 4 notification was published at village site. It is also an undisputed position that declaration under Sec. 6 has been made on 27/09/1990 and it has been published also in the Official Gazette on 27/09/1990. However, it is contended that the notice of declaration under Sec. 6 in two newspapers has been published on 8/12/1990 and on 9/12/1990. Notice has been affixed at village site on 9/01/1991. Therefore it is contended that the two modes of publication of Notification under Sec. 6, i. e. , one through newspaper and another by affixing at village site, has taken place beyond the period of one year. Therefore it is contended that the acquisition is bad and it is not in conformity with the provisions of Sec. 6 of the Act. Therefore it is contended that the acquisition is bad and it is not in conformity with the provisions of Sec. 6 of the Act. Section 6 of the Act reads as follows :"6. Declaration that land is required for a public purpose :- (1) Snbject to the provisions of Part VII of the Act, when the appropriate Government is satisfied, after considering the report, if any, made under Sec. 5a, sub-see. (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Sec. 4, sub-sec. (1), irrespective of whether one report or different reports has or have been made (whenever required) under Sec. 5a, sub-sec. (2) : provided that no declaration in respect of any particular land covered by a notification under Sec. 4, sub-sec. (1) :- (i) published after the commencement of the Land Acquisition (Amendment and validation) Ordinance, 1967, but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification : provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation 1 :- In computiog any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Sec. 4, sub-sec. (1), is stayed by an order of a Court shall be excluded. Explanation 2:- Where the compensation to be awarded for such property is to be paid out of the funds of a Corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues. (1), is stayed by an order of a Court shall be excluded. Explanation 2:- Where the compensation to be awarded for such property is to be paid out of the funds of a Corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues. (2) Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the District or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be, and after making such declaration, the appropriate Government, may acquire the land in manner hereinafter appearing. " ( 5 ) THE argument is based on mixing up of two concepts. Section 6 (1) speaks of declaration to be made. Section 6 (2) speaks of declaration to be published. Making of declaration and publication of declaration are two different things. Making of declaration is required to be done within a period of one year from the date of publication of the Notification under Sec. 4. In the instant case, date of publication of Notification under See. 4/10/1989. Declaration under Sec. 6 has been made on 27/09/1990. Proviso to sec. 6 (1) mandates that no declaration in relation to any particular land covered by Notification under Sec. 4 (1) shall be made after expiry of one year from the date of publication of the Notification. There is no prescription that the publication of the declaration already made shall not be made after a period of one year. The requirement is that the declaration is to be made within the period of one year. There is no prescription that the publication of the declaration already made shall not be made after a period of one year. The requirement is that the declaration is to be made within the period of one year. This is the only reasonable reading of the provisions of Sec. 6 of the Act. We are fortified in this view by the decision of the Supreme court in the case of Khadim Hussain v. State of U. P. and Ors,, reported in AIR 1976 SC 417 . In para 25 of the judgment it is inter alia observed that the declaration mentioned in Sec. 6 (1) differs from its Notification. This is evident by the fact that the declaration has to be signed by a Secretary or other officer duly authorised. The declaration is in the form of an order. The Notification is its publication and proof of its existence. In para 26 of the judgment it is further observed that it is the declaration which has to take place within the prescribed period of time. If one reads the aforesaid two paragraphs, i. e, para 25 and 26 of the judgment, the distinction between declaration to be made and declaration to be published is made clear. Declaration to be made is the fact of making declaration or passing an order by a Secretary or a duly authorised officer. Publication contemplated under Sec. 6 (2) of the Act is the proof of the declaration having been made. So far as publication of declaration to be made under Sec. 6 (2) of the Act is concerned, the time limit of one year provided under Sec. 6 (1) of the Act is not applicable. In this view of the matter the contention that Sec. 6 declaration has been made beyond the prescribed period of one year has no merits. ( 6 ) IT is contended that the award has not been made in conformity with the provisions of Sec. HA of the Act, inasmuch as the award is not made within a period of two years from the date of publication of declaration. This argument, on proper analysis, is based, on the first submission. ( 6 ) IT is contended that the award has not been made in conformity with the provisions of Sec. HA of the Act, inasmuch as the award is not made within a period of two years from the date of publication of declaration. This argument, on proper analysis, is based, on the first submission. According to the learned Counsel for the petitioners, all the steps upto the stage of award under Sec. 11 should be completed within a period of three years from the date of publication of notification under Sec. 4 of the Act. Mere reading of Sec. 11a makes the things clear. The award has to be made within a period of two years from the date of publication of the declaration. In the instant case the declaration under Sec. 6 is made at village site on 8/01/1991 while the award has been passed on 7/01/1993. Thus it is evidently within the period of two years. Hence there is no substance in this argument either. ( 7 ) IT was contended that when the notice dated 2/12/1992 under sec. 9 of the Act was served and hearing was fixed on 19/12/1992, disturbed situation prevailed in Surat City and curfew was clamped. Therefore, no hearing could take place on that date. This factual position is not admitted. It is stated in para 4 of the affidavit-in-reply that the petitioners were afforded an opportunity of being heard and record has been shown to this Court indicating that at least three of the petitioners did remain present on 22/12/1992. In this view of the matter it cannot be said that the petitioners have not been afforded an opportunity of being heard as required under Sec. 9 of the Act. ( 8 ) IT was contended that no sanction/approval of the Government has been obtained as provided under Sec. 11 of the Act. Learned Counsel for the respondents has shown an order granting approval to pass the award as required under Sec. 11 of the Act. The same has been shown to the learned Counsel for the petitioners. In view of this position, this contention also does not survive. Learned Counsel for the respondents has shown an order granting approval to pass the award as required under Sec. 11 of the Act. The same has been shown to the learned Counsel for the petitioners. In view of this position, this contention also does not survive. ( 9 ) THE land has been acquired for the public purpose of establishing residential colony by G. I. D. C. The contention is that G. I. D. C. is a Corporation constituted under the provisions of the Gujarat Industrial Development Act, 1962 and it is not the function of G. I. D. C. to establish residential colony. The contention cannot be accepted in view of the provisions of Sec. 14 (e) and (f) of Gnjarat Industrial Development Corporation Act, 1962, which inter alia provides that subject to the provisions of the Act the Corporation shall have power :" (E) to construct buildings for the housing of the employees of such industries; or commercial establishments; (.) (i) to allot factory sheds or such buildings or parts of buildings, including residential tenements to suitable persons in the Industrial estates established or the industrial areas developed by the Corporation; (in) to allot shops and other buildings to suitable persons in commercial centres established by the Corporation; (ii) to modify or rescind such allotments, including the right and power to evict the allottees concerned on breach of any of the terms or conditions of their allotment,"in above view of the matter, there is no merit in this contention also. ( 10 ) IT was also argued that the public purpose mentioned is very vague. It is specifically stated that it is for establishment of residential colony. It cannot be said that the purpose mentioned is vague. Whether residential accommodation is to be provided to employees or to officer is immaterial. Either of them would be within the functions of G. I. D. C. ( 11 ) IT is submitted that the petitioners have not been afforded an opportunity of being heard before submitting report under Sec. 5a of the Act. Section 5a of the Act requires that "the Collector shall give the objector an opportunity of being heard". Thus the obligation on the Collector is to give opportunity of hearing to the objector. In the instant case it is an admitted position that none of the petitioners had lodged objection against acquisition. Section 5a of the Act requires that "the Collector shall give the objector an opportunity of being heard". Thus the obligation on the Collector is to give opportunity of hearing to the objector. In the instant case it is an admitted position that none of the petitioners had lodged objection against acquisition. Therefore, this contention has no merits. Reliance placed on the decision of the Bombay High Court reported in (Ajit Singh v. State of Maharashtra) AIR 1972 Bombay 177 is of no help to the petitioners inasmuch in that case the question did not arise as to whether a person who has not lodged objection is also required to be afforded an opportunity of being beard. In our view the provisions of Sec. 5a of the Act are very clear. Only an objector is required to be afforded an opportunity of being heard and not all the persons interested in the land. ( 12 ) IT was lastly contended that the acquisition is actuated by mala fides this argument is based on the ground that adjoining land has been released from acquisition as evidenced by order dated 22/03/1991 produced at annexure d to the petition. Simply because some adjoining land which was sought to be acquired by another notification dated 3/02/1989 has been released from acquisition, it cannot be said that the land of the petitioners has been retained on account of some malice. Allegations as regards mala fides are too vague to be given any credence whatsoever. Therefore, even if the same is not controverted in detail, we do not think that any weight should be given to such vague and general allegations of mala fides. ( 13 ) THERE is no substance in the petition. Hence rejected. Notice discharged. Ad-interim relief granted earlier stands vacated. ( 14 ) AT this stage the learned Counsel for the petitioners requests that the order vacating the ad-interim relief granted earlier be kept in abeyance for some time so as to enable the petitioners to challenge the legality and validity of the aforesaid order before the appropriate forum as it may be available to them. In facts of the case the request granted. The order vacating the ad-interim relief shall remain in abeyance upto 30/09/1993. .