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2011 DIGILAW 504 (GUJ)

PATEL JASRAJ AMARSHIBHAI v. STATE OF GUJARAT

2011-07-01

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT (Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. The petitioners are the owners of lands at Village Haripar of Dhrangadhra Taluka being survey nos. 240, 241, 242/1, 242/1, 243, 244, 248, 249, 251 and 203 which were being cultivated by the petitioners. 2. By the impugned notification issued under section 4 of the Land Acquisition Act, 1894 (for short, 'the Act') read with section 17(4) of the Act was issued on 06.04.2010. In this petition the petitioners have challenged the notification under section 4 of the Act by which urgency clause has been invoked. 3. It is not disputed that the notification under section 4(1) of the Act was issued on 06.04.2010 and declaration under section 6 (1) was published in the gazette on 29.04.2001 read with section 17(1) of the Act. A notice under section 9 was issued on 25.05.2010 and objections were invited by the Deputy Collector dated 17.06.2010. The main ground of challenge of the petitioners is that earlier the lands of the petitioners were acquired for the construction of four lane road on Viramgam-Malvan-Dhrangadhra- Halvad- Malia road by issuance of notification under section 4 (1) of the Act on 02.04.2008 by invoking urgency clause and after two years the present notification under section 4(1) has been issued on 06.04.2010 for acquiring adjacent patch of the land for the same purpose. According to the petitioners, there is no urgency for acquiring the land by invoking urgency clause under section 17(4) of the Act and objection under section 5-A was required to be invited. It is further stated that in the notification it has been mentioned that land is acquired for construction of four lane road whereas the authorities are intending to construct over-bridge which is not mentioned in the notification. 4. The respondents have filed their affidavit-in-reply wherein it has been stated that the funds for construction of road had been received and there was urgency for constructing four lane road. Only a small piece of land of the petitioners was being acquired and they have given a detailed chart showing the lands of the petitioners acquired in the year 2008, in the year 2010 and the remaining land of the petitioner in para:5 of the affidavit-in-reply filed by Shri K.N.Lunagaria, Executive Engineer on behalf of respondent No.4. Only a small piece of land of the petitioners was being acquired and they have given a detailed chart showing the lands of the petitioners acquired in the year 2008, in the year 2010 and the remaining land of the petitioner in para:5 of the affidavit-in-reply filed by Shri K.N.Lunagaria, Executive Engineer on behalf of respondent No.4. It is further stated in the affidavit-in-reply that the land which had been acquired in the year 2010 was acquired as on the four lane road railway over-bridge was required to be constructed which was part of the construction of four lane road project. The railway over-bridge is to be constructed on the four lane road for smooth free flow of traffic for the convenience of public at large. There were two options open to the respondents either the gate of railway crossing be shifted to some other place for diversion of the traffic for which prior permission from the Railway Ministry, Government of India, was required and the other was for construction of over-bridge which is in common parlance known as flyover. It was decided to construct the over-bridge and for that purpose land of the petitioner was acquired by invoking emergency clause under the Act. Government of Gujarat had applied its mind to the facts of the case and has issued certificate dated 07.01.2010 which demonstrates that the State Government applied its mind to the fact on the basis of material on record that emergency existed for acquiring the land by invoking urgency clause. Relevant clauses 1 to 4 of the certificate dated 07.01.2010 mentioned in Para:12 of the affidavit in reply whereby the State Government has applied its mind for invoking urgency clause are extracted below: “1. The authority has sanctioned and approved the cost of the land required to be paid for four-laning of the road. 2. The land for the proposed project of four laning of Ahmedabad (Sarkhej) – Viramgam-Dhrangadhra- Halvad- Maliya Road are to be acquired between Chainage Km 74/400 to 174/250 under the Viability Gap Funding Scheme (PPP) of Government of India on BOT basis. 3. The bid has already been received and work is going to start shortly and to avoid heavy financial loss to the State exchequer due to delay in handing over the site free from encumbrances. 4. 3. The bid has already been received and work is going to start shortly and to avoid heavy financial loss to the State exchequer due to delay in handing over the site free from encumbrances. 4. And also as per the Planning Commission, Government of India Guidelines 90% of the land required for construction has to be handed over to the BOT developer prior to the start of the work.” 5. We have heard Ms.Amrita Ajmera learned counsel for the petitioner and Mr.Prakash Jani learned Government Pleader assisted by Ms.Jirga Jhaveri learned Assistant Government Pleader for respondent. 6. The main thrust of the argument of learned counsel for the petitioners is that the respondents are constructing the railway over bridge which has not been mentioned in the notification issued under section 4(1) read with section 17(4) of the Act. It has been mentioned that land is required for construction of four lane road in the absence of mentioning of the purpose i.e. for construction of railway over bridge the notification issued under section 4 has to be quashed and set aside. 7. It is not disputed by the petitioner's counsel that four lane road is being constructed and a railway crossing exist between the four lane road for smooth and free flow of the traffic passing through the four lane road, railway over bridge (flyover) is required to be constructed. Railway over bridge is a part of four lane project and it is not anything separate from the four lane road and it exists on the four lane road. Therefore, we do not find that the notification issued under section 4 (1) read with section 17(4) of the Act is vague and the land has rightly been acquired for construction of four lane road which includes within railway over bridge (flyover). 8. It has been held by the Apex Court in case of Nand Kishore Gupta and others v. State of Uttar Pradesh and others, (2010) 10 SCC 282 , in para:34, as under: “34. The High Court has refuted all these contentions by giving good reasons. We will not go into these individual cases once the High Court has decided not to entertain these pleas and, in ouropinion, correctly. After all, this was an acquisition for building up a highway and the abovementioned writ petitions pertained to the land required for interchange. The High Court has refuted all these contentions by giving good reasons. We will not go into these individual cases once the High Court has decided not to entertain these pleas and, in ouropinion, correctly. After all, this was an acquisition for building up a highway and the abovementioned writ petitions pertained to the land required for interchange. It is obvious that the alignment of the highway cannot be changed, with the result, the area which is required for interchange, also cannot be changed. This is a typical example of the individual having to sacrifice his land for the pu8blic good. There can be no dispute that this road would add to thebetterment of the citizens of East Yamuna area in particular andUttar Pradesh in general. This is apart from the fact that the majority of the persons whose lands have been acquired, have either not objected to it or have accepted the compensation without any demur. It will, therefore, not be possible for us to go into these individual grievances, which have been rightly rejected by the High Court.' 9. In view of the aforesaid discussion of the Apex Court and after going through notification carefully, we are of the considered opinion that the alignment of the four lane road and railway over bridge cannot be changed or altered. The argument made by learned counsel for the petitioners that notification under section 4(1) is vague, is devoid of any merits and is rejected. 10. The next argument of learned counsel of the petitioners is that though in the notification issued by the respondents dated 18th February, 2010 under section 4 (1) of the Land Acquisition Act, urgency clause has been invoked under section 17(4) of the Act dispensing with inquiry under section 5-A of the Act but in declaration issued under section 6 (1) of the Act on 29th April, 2010, the urgency clause under section 17(1) has been invoked and, therefore, inquiry under section 5-A could not be dispensed with. This question has been considered by the Apex Court in case of Union of India and ors. This question has been considered by the Apex Court in case of Union of India and ors. vs. Mukesh Hans, (2004) 8 SCC 14 , wherein in para:33, the Apex Court has quoted with approval the law laid down by earlier Apex Court's decision in Nandeshwar Prasad vs. State of U.P. , AIR 1964 SC 1217 which is extracted below: “It will be seen that Section 17(1) gives power to the Government to direct the Collector, though no award has been made under Section 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under Section 17(1), taking possession and vesting which are providedin Section 16 after the award under Section 11 are accelerated and can take place fifteen days after the publication of the noticeunder Section 9. Then comes Section 17(4) which provides that incase of any land to which the provisions of sub-section (1) are applicable, the Government may direct that the provisions ofSection 5-A shall not apply and if it does so direct, a declaration may be made under Section 6 in respect of the land at any timeafter the publication of the notification under Section 4(1). It will be seen that it is not necessary even where the Government makes a direction under Section 17(1) that it should also make a direction under Section 17(4). If the Government makes a direction only under Section 17(1) the procedure under Section 5-A would still have to be followed before a notification under Section 6 is issued, though after that procedure has been followed and a notification under Section 6 is issued the Collector gets the power to take possession of the land after the notice under Section 9 without waiting for the award and on such taking possession that land shall vest absolutely in Government free from allencumbrances. It is only when the Government also makes adeclaration under Section 17(4) that it becomes unnecessary to take action under Section 5-A and make a report there under. It may be that generally where an order is made under Section 17(1),an order under Section 17(4) is also passed; but in law it is not necessary that this should be so. It is only when the Government also makes adeclaration under Section 17(4) that it becomes unnecessary to take action under Section 5-A and make a report there under. It may be that generally where an order is made under Section 17(1),an order under Section 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under Section 17(1) or Section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand.” 12. Since we find that the State Government has applied its mind for invoking the emergency provisions contained in section 17(4) dispensing with the inquiry under section 5-A of the Act, no interference is called for as the land was acquired for construction of railway over bridge on four lane road which was in public interest. The Apex Court in case of Radhy Shyam (Dead) Through LRS. and Others v. State of Uttar Pradesh And Others, (2011) 5 SCC 553 , after considering the entire law on section 4 and section 5-A, has crystallized the law in Para:77. Sub-paras: (i) and (v) of Para:77 is extracted below: “(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on account of public exigency and for public good. (v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.” 13. Therefore, before excluding the application of Section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.” 13. It is not disputed by learned counsel for the petitioners that the land was acquired for construction of four lane road and railway over bridge which is for public purpose and it would be fit for public at large and help in smooth flow of traffic. The funds had been received for construction. Therefore, we do not find any illegality committed by the respondents in invoking urgency clause and dispensing with inquiry under section 5-A of the Act. 14. For the aforesaid reasons, we do not find any merits in this petition. This writ petition fails and is accordingly dismissed.