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2018 DIGILAW 1223 (GUJ)

ABDUL VAHAB ABDUL GAFAR KAPADIYA v. STATE OF GUJARAT

2018-11-01

R.SUBHASH REDDY, VIPUL M PANCHOLI

body2018
JUDGMENT R. SUBHASH REDDY, J. 1. This Special Civil Application is filed under Article 226 of the Constitution of India by seeking the following prayers: "(A)Be pleased to allow present petition. (B)Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction by directing respondents more particularly respondent no. 2 and 3 for removing the land admeasuring 12788.98 sq.mtrs of block no. 649 of village Rahiyad,Tal: Vagara,Dist:Bharuch from acquisition proceedings which are going on. (B-1)Your Lordships may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the Notification dated 25th March, 2008 published under the provision of Section 4 of the Land Acquisition Act as well as the Notification dated 23rd June, 2009 published under the provision of Section 6 of the Land Acquisition Act in the interest of justice. (C)Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to restrain the respondent no.2 and 3, their agent, servants or any other person from taking possession of the land in question from the petitioner and also be pleased to stay the further acquisition proceedings qua the land in question of petition. (D)Such other and further relief or relieves as may be deemed just and expedient in view of the facts and circumstances of the case may kindly be granted." 2. The petitioner is owner, and possessor of the land admeasuring 12788 sq.mtrs bearing Survey/Block No. 649 of Village:Rahiyad, Tal: Vagara, Dist:Bharuch. The said land is acquired under the provisions of the Land Acquisition Act, 1894 ("the Act" for short) for the purpose of extension of Dahej Industrial Area through Gujarat Industrial Development Corporation. Originally, the land covered by Block No. 649 admeasuring 15000 sq.mtrs was owned by one Mr. Mohhamad Hanif Gullam Patel. As stated in the petition, it was converted to non-agricultural land, the petitioner has purchased the same by registered sale deed dated 15.11.2007. Notification under section 4(1) of the Land Acquisition Act, 1894 was published on 25.03.2008, notifying the land to the extent of 1 Acre and 50 Gunthas from Survey/Block No. 649. Said Notification was published in Sandesh newspaper on 09.05.2008 and Divya Bhaskar newspaper on 07.05.2008. Substance of the Notification was exhibited on the notice board of Village Panchayat on 25.06.2008. Notification under section 4(1) of the Land Acquisition Act, 1894 was published on 25.03.2008, notifying the land to the extent of 1 Acre and 50 Gunthas from Survey/Block No. 649. Said Notification was published in Sandesh newspaper on 09.05.2008 and Divya Bhaskar newspaper on 07.05.2008. Substance of the Notification was exhibited on the notice board of Village Panchayat on 25.06.2008. After making necessary inquiry under section 5A of the Act, declaration under section 6 of the Act was published on 23.06.2009. 3. The aforesaid acquisition is questioned by the petitioner mainly on the ground that the Notification is not published in two daily newspapers, as required under law and further, the declaration is not made within a period of one year from the date of the notification. It is also the case of the petitioner that, land bearing Survey No. 648 is excluded, which is adjoining the land of the petitioner. However, the land covered by Survey/Block No. 649 of the petitioner is acquired. Thus, there is discrimination on the part of the respondents in acquiring the land of the petitioner. 4. On behalf of the respondents, separate affidavits in reply are filed denying various allegations made by the petitioner. In the reply filed, the respondents have explained that mistake has occurred in the publication of notification in one of the newspapers, namely, Divya Bhaskar in which, instead of Survey No. 649, Survey No. 449 is mentioned. The area of 1 Acre and 50 Gunthas is mentioned correctly but, in stead of Survey No.649, it was mentioned as Survey No. 449. Further, it is stated in the reply that Survey No.449 is also acquired by mentioning the correct measurement of the land, i.e., 1 Hectare 28 ARE. It is stated that such mistake which has crept in one of the newspapers, has not resulted in any prejudice to the case of the petitioners. 5. We have heard Mr. K. K. Trivedi, learned counsel for the petitioner, Mr. Rohan Yagnik, learned Assistant Government Pleader for respondent No.1 and Mr. Paritosh Gupta, counsel for M/s. Trivedi & Gupta, advocate for respondent No.4. 6. 5. We have heard Mr. K. K. Trivedi, learned counsel for the petitioner, Mr. Rohan Yagnik, learned Assistant Government Pleader for respondent No.1 and Mr. Paritosh Gupta, counsel for M/s. Trivedi & Gupta, advocate for respondent No.4. 6. Learned counsel for the petitioner has taken us to the pleadings and other materials placed on record and has contended that though there is obligation on the part of the respondents to publish notification issued under section 4 of the Act, in two daily newspapers, in spite of the same, publication is made only in one newspaper and in other newspaper, viz. Divya Bhaskar, land of the petitioner is not notified. It is further submitted that even the declaration is not published within time frame of one year from the date of notification, as such, the entire proceedings are fit to be quashed. Learned counsel, in support of his arguments, also relied on the judgment in the case of Devender Kumar Tyagi and Others v. State of Uttar pradesh and Others reported in, (2011) 9 SCC 164 . 7. On the other hand, learned Assistant Government Pleader Shri Rohan Yagnik, appearing for respondent No.1 and Mr. Paritosh Gupta, counsel appearing for respondent No.4 have submitted that the land is acquired along with several other lands for the purpose of extension of Dahej Industrial Area. It is submitted that possession of all other lands is taken by passing award but only in view of pendency of this petition, possession of parcel of land of the petitioner, which is adjoining the notified area, is not taken. It is submitted that true and valid notification is published in the Gazette and also in two daily newspapers, as required under law. It is also the case of the respondents that declaration, as contemplated under section 6 of the Land Acquisition Act, 1894 was published within time as contemplated under the Act. Learned counsel Shri Paritosh Gupta also submitted that mere error which has crept in in mentioning the survey number is no ground to invalidate the notification. It is submitted that section 4(1) notification is only proposal and in any event, no prejudice is caused to the petitioner so as to seek invalidation of the notification itself alleging that the Notification under section 4(1) of the Act was published only in one newspaper. It is submitted that section 4(1) notification is only proposal and in any event, no prejudice is caused to the petitioner so as to seek invalidation of the notification itself alleging that the Notification under section 4(1) of the Act was published only in one newspaper. Learned counsel for respondents, in support of their arguments have placed reliance on the judgment of the Hon'ble Supreme Court in the case of Babu Barkya Thakur v. State of Bombay (now Maharashtra) and Ors. reported in, (1960) AIR SC 1203, judgment of the Hon'ble Supreme Court in the case of Pratibha Nema and Others v. State of M. P. and Others, (2003) 10 SCC 626 and the judgment of the Hon'ble Supreme Court in the case of Special Deputy Collector, Land Acquisition C.M.D.A. v. J.Sivaprakasam and Others reported in, (2011) 1 SCC 330 . 8. Having heard the learned counsels for the parties, we have carefully perused the material on record. From the material placed on record, it is to be noticed that the land belonging to the petitioner to the extent of 1 Hectare 50 ARE covered by Survey/Block No. 649 of Village:Rahiyad, Taluka:Vagara, District:Bharuch is acquired by issuing notification under section 4 of the Land Acquisition Act, 1894. The said notification was published in the Gazette on 25.03.2008. The said notification was also published in Sandesh daily newspaper on 09.05.2008 and Divya Bhaskar daily newspaper on 07.05.2008. Substance of the notification was exhibited on the notice board of Village Panchayat on 25.06.2008. As evident from the reply affidavit filed by the respondents, it is also clear that declaration is published under section 6 of the Act on 23.06.2009. 9. It is now settled that for computing the period of one year, last of the date of publication is to be considered. As much as the notification under section 4 of the Act was exhibited on the notice board of Village Panchayat on 25.06.2008, the declaration under section 6 of the Act was published on 23.06.2009 as such it cannot be said to be illegal and barred by the period of one year. As much as the notification under section 4 of the Act was exhibited on the notice board of Village Panchayat on 25.06.2008, the declaration under section 6 of the Act was published on 23.06.2009 as such it cannot be said to be illegal and barred by the period of one year. The judgment relied on by learned counsel for the petitioner in support of his arguments in the case of Devender Kumar Tyagi and Others v. State of Uttar Pradesh and Others reported in, (2011) 9 SCC 164 , would not render any assistance to the case of the petitioner having regard to the fact situation. 10. Further, only other submission advanced by learned counsel for the petitioner is there is no valid publication of notification in two daily newspapers as required under law. It is not in dispute that after publication of section 4(1) notification in the Gazette on 25.03.2008, the notification was also published in two daily newspapers, i.e. Sandesh newspaper on 09.05.2008 and Divya Bhaskar newspaper on 07.05.2008. In Divya Bhaskar daily newspaper, the extent of land is correctly mentioned as 1 Acre 50 ARE. But at the same time, instead of mentioning Survey No. 649, it was mentioned as Survey No. 449. Even along with the land of the petitioner covered by Survey No. 649, land covered by Survey No. 449 was also acquired, which admeasures 1 Acre 28 ARE. It appears that survey numbers of the said notified land, i.e. Survey No. 449, which admeasures 1 Acre 28 ARE is correctly notified, but it appears that inadvertent mistake has crept in in mentioning Survey No. 449 instead of Survey No. 649. It is also to be noticed that even according to the case of the petitioner, the petitioner was not residing in the village where the land in question is situated and he is residing at Surat. We are of the view that by virtue of such mistake which has crept in mentioning Survey No. 449 in the newspaper in stead of Survey No. 649, has not caused any prejudice to the case of the petitioner so as to invalidate the very notification at this stage. In the case of Babu Barkya Thakur v. State of Bombay (now Maharashtra) and Ors. In the case of Babu Barkya Thakur v. State of Bombay (now Maharashtra) and Ors. reported in, (1960) AIR SC 1203, when the public purpose was not mentioned in the notification issued under section 4 of the Land Acquisition Act, 1894, the Hon'ble Supreme Court has held that, non-mentioning of public purpose in the notification issued under section 4 of the Act is not fatal. In the aforesaid case, it is held that the purpose of a notification under section 4 of the Act is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels, and, if necessary, to acquire the land or not. In the aforesaid judgment, it is stated that it is only under section 6 that a firm declaration has to be made by Government that land with proper description and so as to be identifiable is needed for a public purpose or for a Company. 11. In the judgment in the case of Pratibha Nema and Others v. State of M. P. and Others reported in, (2003) 10 SCC 626 , the Hon'ble Supreme Court has held that, when no prejudice has been demonstrated nor could be reasonably inferred, it would be unjust and inappropriate to strike down the notification issued under section 4 (1) of the Act. Paragraph-38 of the judgment reads as under: "38. When no prejudice has been demonstrated nor could be reasonably inferred, it would be unjust and inappropriate to strike down the notification under Section 4(1) on the basis of a nebulous plea, in exercise of the writ jurisdiction under Article 226. Even assuming that there is some ambiguity in particularizing the public purpose and the possibility of doubt cannot be ruled out, the Constitutional Courts in exercise of jurisdiction under Article 226 or 136 should not, s a matter of course, deal a lethal blow to the entire proceedings based on the theoretical or hypothetical grievance of the petitioner. It would be a sound exercise of discretion to intervene when a real and substantial grievance is made out, the non-redressal of which would cause prejudice and injustice to the aggrieved party. It would be a sound exercise of discretion to intervene when a real and substantial grievance is made out, the non-redressal of which would cause prejudice and injustice to the aggrieved party. Vagueness of the public purpose, especially, in a matter like this where it is possible to take two views, is not something which affects the jurisdiction and it would, therefore, be proper to bear in mind the considerations of prejudice and injustice." 12. Similarly, in the judgment of Special Deputy Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam and Others reported in, (2011) 1 SCC 330 , the Hon'ble Supreme Court has considered the requirement of proper publication as contemplated under section 4 (1) of the Act. In the aforesaid judgment, in paragraph-29, the Hon'ble Supreme Court has held as under: "29. If the newspapers in which the notification is published were circulating in the locality, but did not have a reasonably wide circulation in the locality, then neither the notification under Section 4(1) nor the consequential acquisition proceedings, will become vitiated automatically. If the person aggrieved, apart from demonstrating that the two newspapers side not have reasonably wide circulation in the locality, also asserts that as a consequence, he did not have notice of the proposed acquisition that was provided for in Section 4(1) of the Act, in the absence of evidence to the contrary, the acquisition to the extent of the land of such person will be vitiated. But if such assertion is rebutted by the acquiring authority by placing evidence to show that the person concerned had in fact notice (as for example where he participated in the enquiry under Section 5-A of the Act), the acquisition will not be vitiated on the ground of violation of Section 4-A of the Act." 13. In the instant case, it is not in dispute that the land in question is situated in village-Rahiyad, Taluka-Vagara, District-Bharuch, whereas, even according to the case of the petitioner, admittedly, the petitioner is not staying in the district where the land is situated and has also not placed any material to show that any prejudice is caused on account of such mistake that has crept in mentioning Survey No. 449 in stead of Survey No. 649 in the notification published in one of the newspapers. 14. 14. As we are of the view that declaration made under section 6 of the Act is within a period of one year from the date of publication of the substance of section 4(1) notification on the notice board of Village Panchayat on 25.06.2008, and further, on account of mistake in mentioning wrong survey number in one of the newspapers, has not caused any prejudice to the case of the petitioner, we are of the view that no case is made out to interfere as there is no merit in the petition. It is also to be noticed that coming to know of the acquisition, the petitioner has already approached the respondents and made representation, and participated in the inquiry. In that view of the matter and further, having regard to the purpose of acquisition, as it is stated that adjoining lands are already acquired and possession has been taken, we are of the view that there is no merit in the petition so as to quash the notification issued under section 4(1) of the Land Acquisition Act, 1894. 15. As no other ground is urged, as this petition is devoid of merits, the same is accordingly dismissed. Rule is discharged. No order as to costs.