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2014 DIGILAW 334 (GUJ)

KANTILAL KESHAVLAL PARMAR v. STATE OF GUJARAT

2014-03-04

MOHINDER PAL, RAVI R.TRIPATHI

body2014
JUDGMENT : RAVI R.TRIPATHI, J. 1. Petitioner, one Kantilal Keshavlal Parmar, in his capacity as a trustee of Shri Vankar Dharamshala Trust, is before this Court praying that: “7(b) Issue a writ of certiorari or any other writ, order or direction quashing and setting aside the procedure of acquiring the land of the trust on the ground of public purpose as defined under section 3 of the Land Acquisition Act, 1894....” (emphasis supplied) 2. Learned advocate for the petitioner moved a Draft Amendment along with few annexures which is allowed. The matter was heard on 14.02.2014 and on that day it was argued by one Mr.H.K.Makwana for Mr.R.D.Makwana for the petitioner and the Court passed the following order: “Learned advocate Mr.H.K. Makwana for Mr.R.D. Makwana for the petitioner wants time to take instructions in the matter from the petitioner as to what is their expectation about donations in lieu of the land which is under acquisition for Arasuri Ambaji Mata Trust. Adjourned to 20.02.2014.” On 20.02.2014 it was adjourned to 24.02.2014. On 24.02.2014 it was adjourned to 28.02.2014 and on 28.02.2014, it was adjourned for today, i.e. 04.03.2014. 3. Learned advocate Mr.R.D.Makwana for the petitioner opened the matter by saying that, “the petitioner is not willing to sell his land”, as if it was his choice of selling the land which is already under acquisition. 4. Learned advocate for the petitioner then submitted that there is non-compliance of section 5A of the Land Acquisition Act, 1894, which reads as under: “5A. Hearing of objections. - (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of the [appropriate Government on the objections shall be final. (3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.” (emphasis supplied) 5. Learned advocate for the petitioner submitted that it is mentioned in the notification under section 6, a copy of which is produced at page 40 Annexure-C, that: “And whereas the Collector, Banaskantha empowered under section 52(A) (Land Acquisition Act, 1894) (1st of 1894) is satisfied after considering the report of the Deputy Collector, Danta under sub section (2) of section 5-A of the Land Acquisition Act, 1894 (1st of 1894) that appellant had raised objection but they (appellant) could not give written answer during hearing held on 17.9.2012, 22.10.2012, 7.1.2013, 11.1.2013 and begged for date for next hearing. So objections raised by the appellants are not deemed to be considered and the said land is needed to be acquired at the expense of Shri Arasuri Ambaji Mata Devasthan Trust Ambaji.” 6. Learned advocate for the petitioner invited the attention of the Court to the documents which are annexed with the Draft Amendment. The first one is dated 02.10.2012 wherein it is stated that: “With reference to the above mentioned subject, I am respectfully stating and submitting in connection to our protest application dated 06.09.2012 that a letter was forwarded to us on 17.9.2012 for remaining present for hearing of our protest. The first one is dated 02.10.2012 wherein it is stated that: “With reference to the above mentioned subject, I am respectfully stating and submitting in connection to our protest application dated 06.09.2012 that a letter was forwarded to us on 17.9.2012 for remaining present for hearing of our protest. In said letter, it was mentioned to remain present before the registry but, since the post was sent on 17.9.2012 which and it could not be traced out specifically from the seal of postal department. We are hereby producing the photocopy of cover herewith for your ready reference on which the seal of postal department could be found out and since this post was received to us on 22.09.2012 meaning, we had received the post after expiry/lapse of fixed date from postal department and hence, we could not remain present which please note.” 6.1 The second document annexed is a letter dated 22.10.2012. In that letter it is mentioned that: “With reference to above mentioned subject, I am respectfully stating and submitting that, as per letter bearing No.JDP/LAQ/1802 hearing was fixed as on 22.10.2012. Since our Inn is registered as per Bombay Public Act, 1950 and it is general trust and we were trustee of it and since all the proceedings are handled and administered by my son Kamleshbhai Parmar and he retains the work for the subject of Trust and since due to religious circumstances, my son Kamleshbhai had gone to our native and hence, he could not remain present before you and moreover to request you to grant us further time. With a request to seek cooperation from your side.” 6.2 The third letter is dated 07.01.2013, which reads as under: “Today, there is fixed date with reference to above mentioned subject and in furtherance thereto, we would like to submit that, since my wife is suffering from illness and I am required to remain present and hence, I could not remain present before your office and hence, in the interest of justice, I request you to allow further time.” (emphasis supplied) 6.3 Last but not the least document is dated 11.01.2013, wherein it is stated that: “We are respectfully stating and submitted that, earlier we had came on 11.01.2013 at office of Danta for Vankar Caste Inn at relevant time, you had gone to Palanpur and at present you had gone to Gandhinagar. Necessary communication of Vankar Caste Inn is undergone since there is election to be held. At present, there is marriage ceremony to be solemnized in my home and hence, we request you to grant us extended fixed date.” 7. Mere perusal of these documents would show that there is a deliberate attempt on the part of the petitioner to stall the proceedings of acquisition. 8. Learned advocate for the petitioner could not mention anything which will suggest of any mala fide on the part of the acquiring body, or any personal interest of anybody in the present acquisition. The oblique motive of the petitioner is clear from the fact that, once his son is away for religious ceremony, he does not go to the authorities for hearing of the objections; then his wife is not well and he could not remain present before the authorities; and lastly there is marriage ceremony in his home, he does not attend the hearing. This shows that the only aim on the part of the petitioner is to see that the acquisition proceedings do not proceed any further. 9. Coming to the point of law argued by learned advocate Mr.Makwana, he relied upon a decision of the Hon’ble the Apex Court in the matter of Kamal Trading Pvt. Ltd. (now known as Manav Investment and Trading Co. Ltd.) vs. State of West Bengal reported in (2012) 2 SCC 25. Learned advocate relied upon paragraphs 13, 14 & 15 of the said judgment, which read as under: “13. Section 5A(1) of the LA Act gives a right to any person interested in any land which has been notified under Section 4(1) as being needed or likely to be needed for a public purpose to raise objections to the acquisition of the said land. Sub-section (2) of Section 5A requires the Collector to give the objector an opportunity of being heard in person or by any person authorized by him in this behalf. After hearing the objections, the Collector can, if he thinks it necessary, make further inquiry. Thereafter, he has to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final. 14. Thereafter, he has to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final. 14. It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the concerned authority, inter alia, that the important ingredient namely `public purpose' is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an ex-proprietary legislation, its provisions will have to be strictly construed. 15. Hearing contemplated under Section 5A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collector's recommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5A(2). As said by this Court in Hindustan Petroleum Limited, the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf. ...” Reading of the aforesaid paragraphs makes it clear that the said judgment is not applicable to the facts of the present case. In the present case, the authorities did give opportunity to the petitioner and despite the fact that he is pursuing the matter as a trustee of the Trust, he deliberately avoided the hearing before the authorities. ...” Reading of the aforesaid paragraphs makes it clear that the said judgment is not applicable to the facts of the present case. In the present case, the authorities did give opportunity to the petitioner and despite the fact that he is pursuing the matter as a trustee of the Trust, he deliberately avoided the hearing before the authorities. 9.2 Learned advocate for the petitioner next relied upon a decision of Madras High Court in the matter of S.Sitaraman vs. Special Tahsildar, Adi Dravida Welfare, Tindivanam reported in AIR 1999 Madras 428. Learned advocate for the petitioner relied upon the contents of para 9 of the said judgment, which reads as under: “9. No doubt, the impugned 5-A proceedings show, that all the objections raised by the petitioner were duly considered and rejected as unacceptable. In the light of the language used in Section 5-A(2) of the Act, a duty is cast on the Collector to give the objector an opportunity of being heard in person, Even, though wife of the petitioner had reached the place of enquiry on 13.9.1091 and waited till 1.00 p.m. she was not heard because of the absence of the respondent. As rightly contended by the learned counsel appearing for the petitioner, mere considering the objection of the land owner may not be sufficient and the land owner or his authorised person or his pleader must be heard in person before taking any decision with regard to the objections made. It is settled law that whenever a statute provides certain thing to be done, the same have to be done strictly. As observed by their Lordships in Mandi Sita Ramji v. Governor of Delhi, , the observance of the procedure laid down by the statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. Accordingly, I hold that giving personal hearing to the owner of the land who is sought to be acquired is a mandatory requirement under Section 5-A. Further the proceedings under Section 5-A of the Act are quasi judicial and not merely executive. The denial of an opportunity of being heard to the petitioner to make his objections vitiates the impugned order passed by the respondent. The denial of an opportunity of being heard to the petitioner to make his objections vitiates the impugned order passed by the respondent. When the provisions of Section 5-Ai of the Act have been fully complied with, undoubtedly declaration made by the Government under Section 6 of the Act and all subsequent proceedings are without jurisdiction and liable to be quashed....” (emphasis supplied) 9.3 From the above judgment it is clear that it is for the land owner to see that his case is represented either by him in person or his authorized person, or his pleader in support of the objections filed by him. 9.4 In the present case, the petitioner did not remain present under one excuse or other. It was rightly put to the learned advocate for the petitioner as to who was to be heard, whether the petitioner himself or his son, because on one occasion the petitioner said that his son was away for a religious ceremony. On the second occasion as his wife was suffering from illness, he did not attend the hearing . At the first instance, the petitioner himself was available to get the objections heard and on the second occasion when he was with his ailing wife, his son was available to appear before the authorities. In view of that, the judgment relied upon by the petitioner does not help him. 10. In view of the above, the Court finds no substance in the matter. The petition is dismissed. 11. Taking into consideration the fact that the petition is filed by the petitioner as a trustee of the Trust, the Court restrains itself from imposing any cost on the petitioner.