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2009 DIGILAW 225 (GUJ)

Bashirmiya Nabimiya Malek v. State of Gujarat

2009-03-31

H.N.DEVANI, M.S.SHAH

body2009
Judgment Ms. H.N. Devani, J.—By this petition under Article 226 of the Constitution of India the petitioners whose lands bearing Survey No. 240/2, 249, 250, 251/1, 251/2, 336/2 paiki, 274/2, 248, 944/4, 252/2 situated in the sim of village Mahemdabad, Taluka Mahemdabad, District Kheda (hereinafter referred to as the - lands in question) have been acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as - the Act) seek a direction against the respondents to release their lands. 2. The lands of the petitioners referred to hereinabove came to be acquired for the purpose of establishing Growth Centre at Mahemdabad. Preliminary notification under Section 4 of the Act came to be published on 04.06.1981 and declaration under Section 6 of the Act came to be published on 23.05.1984. The Special Land Acquisition Officer declared award under Section 11 of the Act on 22.09.1986 and offered compensation at the rate of Re.1 per sq. mt. to Rs. 1.70 per sq. mt. The amount of compensation was paid to the petitioners and possession of the land in question was also taken over in 1987. 3. The petitioners did not accept the award of the Special Land Acquisition Officer, and made applications under Section 18 of the Act which came to be referred to the District Court for determination of compensation. The District Court vide judgment and award dated 31.01.1997 awarded additional compensation of Rs. 1.50 to 2.30 per sq. mt. Being aggrieved, the petitioners preferred appeals before this Court being First Appeals No. 840 of 1998 to 876 of 1998. Vide judgment and order dated 15.03.1999 rendered in the aforesaid first appeals, additional compensation of Rs. 15/- per sq. mt. came to be awarded. The Respondent No. 3 Ahmedabad Urban Development Authority challenged the aforesaid judgement and order before the Supreme Court and by a judgment and order dated 10.10.2002, the appeals came to be allowed and the matters were remanded to this Court. 4. It appears that by virtue of the same notification under which the petitioners lands came to be acquired, lands of certain other persons were also acquired. In respect of some parcels of land, the Respondent No. 3 Ahmedabad Urban Development Authority had recommended withdrawal from acquisition. One Rajnagar Co-op. 4. It appears that by virtue of the same notification under which the petitioners lands came to be acquired, lands of certain other persons were also acquired. In respect of some parcels of land, the Respondent No. 3 Ahmedabad Urban Development Authority had recommended withdrawal from acquisition. One Rajnagar Co-op. Housing Society Ltd. whose land had also been acquired under the same notification and had not been withdrawn from acquisition had approached this Court by way of a writ petition being Special Civil Application No. 2780 of 1985, praying for release of its lands. By judgement and order dated 13.02.1996 a Division Bench of this Court allowed the petition and directed the respondents to release the land of the petitioner therein from acquisition. 5. After a considerable period of time since the making of award under Section 11 of the Act and taking over of possession of their lands by the respondents, the petitioners herein made an application dated 30.04.1999 to the Respondent No. 3 seeking release of their lands under Section 48 of the Act. By a communication dated 09.12.1999 of the Respondent No. 3, the petitioners were informed that as their lands had been acquired for the purpose of Growth Centre and compensation had already been paid to them, their application has been rejected. It is at this stage that the present petition came to be filed praying for release of the lands in question. 6. Mr GM Amin, learned Advocate for the petitioners vehemently assailed the decision of the Respondent No. 3 in declining to release the lands of the petitioners from acquisition. It was urged that the action of the respondents was arbitrary and discriminatory inasmuch as in the case of several similarly situated persons, the Respondent No. 3 had released the lands. Attention was drawn to the minutes of the meeting dated 14.07.1987 of the Committee of the Respondent No. 3 and more particularly to item No. 14 therein whereby it had been recommended that the lands held by Ex-MLA bearing Survey No. 252/1 be released from acquisition. It was submitted that the Respondent No. 3 had adopted a policy of pick and choose and has chosen to retain the lands of certain persons and has chosen to favour certain persons by releasing their lands from acquisition. It was submitted that the Respondent No. 3 had adopted a policy of pick and choose and has chosen to retain the lands of certain persons and has chosen to favour certain persons by releasing their lands from acquisition. It was submitted that in any case the case of the petitioners stands directly covered by the decision of this Court rendered in Special Civil Application No. 2780 of 1985 and the petitioners are, therefore on the grounds of parity entitled to the relief prayed for in the petition. Assailing the averments made in the affidavit in sur-rejoinder on behalf of the Respondent No. 3 wherein it has been stated that the lands in question are required by the Respondent No. 3 for the purpose of Growth Centre, it is submitted that even much after the acquisition the Respondent No. 3 had thought it fit to release the lands in question however, with a malafide intention it has now decided to retain the said lands for the purpose of Growth Centre. The learned Advocate has also placed reliance upon the decision dated 30.01.2009 of this Bench rendered in the case of Jignesh Rameshchandra Bhinde & Ors. vs. State of Gujarat (Special Civil Application No. 120 of 1987) wherein this Court in case of some other parcels of land which was subject matter of acquisition under the same notification had directed the respondents to withdraw the said lands from acquisition. The learned Advocate has also placed reliance upon the decisions of the Supreme Court in the case of Sube Singh & Ors. vs. State of Haryana & Ors., JT 2001 (6) SC 578 = (2001) 7 SCC 545 and in the case of BEML Employees House Building Co-operative Society Ltd. vs State of Karnataka, AIR 2004 SC 5054 . 7. Mr. HS Munshaw, learned Advocate appearing for the Respondent No. 3 placed reliance upon the averments made in the affidavit-in-sur-rejoinder dated 13.03.2009 and submitted that the petitioners had accepted the compensation and had challenged the same by way of appeal and that the claim of the petitioners for release of the lands in question cannot be entertained after more than 20 years. It was submitted that the earlier decision of the authority to release the lands in question was subject matter of review and it had been decided that the land in question cannot be released as the same was required for Growth Centre as well as planned development of the area. Mr. Munshaw has further pointed out that insofar as the decision of this Court in the case of Jignesh Rameshchandra Bhinde & Ors. (Supra) is concerned, possession of the land which was subject matter of acquisition in the said case had not been taken over whereas in the present case the possession has already been taken. It was accordingly submitted that even otherwise it was not legally permissible to the respondents to withdraw from acquisition once possession of the land in question has already been taken over. 8. From the facts noted above it is apparent that out of several parcels of lands which were subject matter of acquisition under the same notification, certain parcels of lands were released from acquisition by the respondents on their own. In case of the petitioners in Special Civil Application No. 120 of 1997 the possession of the lands under acquisition had not been taken over and this Court had directed the respondents to withdraw the said lands from acquisition. The petitioner in Special Civil Application No. 2780 of 1985 had challenged the notifications issued under Sections 4 and 6 of the Act and had prayed for a direction against the respondents to drop all further proceedings taken in pursuance of the impugned notifications. However, it appears that during the pendency of the said petition possession of the land of the said petitioner had been taken over. A Division Bench of this Court had vide judgment and order dated 13.02.1996 directed the respondents to release the lands of the petitioner therein from acquisition. The petitioners herein are claiming parity with the said petitioner. 9. In the facts of the present case, it is apparent that insofar as the petitioners are concerned they have approached this Court after an inordinate delay. The petitioners herein are claiming parity with the said petitioner. 9. In the facts of the present case, it is apparent that insofar as the petitioners are concerned they have approached this Court after an inordinate delay. The petitioners had acquiesced with the acquisition made in 1987 when possession was taken over and the petitioners accepted the compensation in respect of their lands, made reference applications under Section 18 of the Act, and it was four years after the judgment was delivered on 13.02.1996 in Special Civil Application No. 2780 of 1985 that the present petition came to be filed by the petitioners in March 2000 praying for a direction against the respondents to release of their lands from acquisition. Therefore, on facts the petitioners cannot be said to be identically situated to the petitioners of Special Civil Application No. 2780 of 1985. Besides, in the affidavit-in-reply dated 13.03.2009 filed on behalf of Respondent No. 3 there is a categorical averment to the effect that the lands in question are in fact required for the Growth Centre as well as planned development of the area. 10. Insofar as the claim for release of their lands from acquisition is concerned, it may be pertinent to refer to the provisions of Sub-section (1) Section 48 of the Act which reads as under: “48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.—(1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (emphasis supplied) 11. On a plain reading of Sub-section (1) of Section 48, it is clear that it is only those lands of which possession has not been taken that can be released from acquisition under the said provision. The law is this regard is well settled by a catena of decisions of the Hon’ble Supreme Court. In Lt. Governor of Himachal Pradesh and Another vs. Sri Avinash Sharma, (1970) 2 SCC 149 , the Apex Court held that after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17 (1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification. In Balwant Narayan Bhagde vs. M.D. Bhagwat and Others, (1976) 1 SCC 700 , the Apex Court held that the Government was not at liberty to withdraw from acquisition of any portion of land of which possession had been taken, under Section 48(1) of the Act. In Rajasthan Housing Board and Others vs. Shri Kishan and Others, (1993) 2 SCC 84 , the Apex Court held that once possession of the land under acquisition is taken over, it is not open to the Government to withdraw from the acquisition under Section 48 of the Act. The aforesaid view was reiterated by the Apex Court in Satendra Prasad Jain and Others v. State of U.P. and Others (1993) 4 SCC 369 and in Mandir Shree Sita Ramji vs. Land Acquisition Collector, (2005) 6 SCC 745 . 12. In the facts and circumstances noted hereinabove, it is evident that the stand of the Respondent No. 3 as emerging from the affidavit-in-reply dated 13.03.2009 is that the respondents require the lands in question for the purpose for which the same were acquired. Hence, the question of directing the respondents to release the lands in question from acquisition does not arise at all. Furthermore, in view of the aforesaid legal position even if the respondents were ready and willing to release the lands from acquisition, it is not statutorily permissible for the Government to withdraw from the acquisition under Section 48 of the Act once possession of the lands is taken over. 13. The decision of the Honourable Supreme Court in the case of Sube Singh vs. State of Haryana, (2001)7 SCC 545 , on which reliance has been placed upon by the learned Advocate for the petitioner would not be applicable to the facts of the present case, inasmuch as in the said case the petitioners therein had approached the Court at the stage of publication of notifications under Section 4 and 6 of the Act alleging discrimination. In the present case, the petitioners, at the relevant time when lands of other persons had been released from acquisition, did not think it fit to challenge the acquisition of their lands. In fact the petitioners acquiesced with the acquisition and accepted the compensation in respect of their lands in 1987 and proceeded further with reference applications under Section 18 of the Act. Hence, at this belated stage, the petitioners cannot be permitted to raise the contention of arbitrariness and discrimination on the ground that lands of other persons had been released from acquisition. For the same reasons the decision of the Honourable Supreme Court in the case of B.E.M.L. Employees House Building Co-operative Society Ltd. vs. State of Karnataka (Supra) would also not be applicable to the facts of the present case inasmuch as in the said case also the landholder had challenged the acquisition of his land at the stage of issuance of notifications under Section 4 and Section 6 of the Act and the Court held that the vice of hostile discrimination infects and vitiates the decision taken by the State Government to continue with the acquisition against his land. In the present case the petitioners approached this Court 13 years after the acquisition had been completed and land had vested in the State Government. 14. In view of the above discussion, the petitioners are not entitled to the relief prayed for in the petition. The petition, therefore, fails and is accordingly dismissed. Rule is discharged.