Gujarat High Court
Vasudev Kanchanlal Pandya & 15 vs State Of Gujarat & 2 on 19 June, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/16035/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16035 of 2013
With
SPECIAL CIVIL APPLICATION NO. 5027 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
======================================
1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of India or any order made thereunder ?
====================================== VASUDEV KANCHANLAL PANDYA & 15....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ====================================== Appearance:
MR. R.R. MARSHALL LD, SR. ADV WITH MR ARPIT A KAPADIA, ADVOCATE for the Petitioner(s) No. 1 16 MR. HARDIK VORA ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 2 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3 MR MD PANDYA, ADVOCATE for the Respondent(s) No. 3 ====================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE B.N. KARIA Date : 19/06/2017 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 29 HC-NIC Page 1 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT 1.0. As common question of law and facts arise and except change in the survey number, all the lands acquired, the facts are identical and similar, both these petitions are heard, decided and disposed of together.
Special Civil Application No. 16035 of 2013 2.0. By way of this petition under Article 226 of the Constitution of India, the respective petitioners original land owners whose lands have been acquired under the provisions of Land Acquisition Act, 1894 as far as back in the year 1992, which were acquired after consent of the respective petitioners original land owners and for which consent award was declared in the year 1992, have prayed for an appropriate writ, direction and order directing the respondents to reconvey/ regrant the land bearing survey no. 533 admeasuring 02226 (HRiSqm) and Survey no.
554 admeasuring 03339 (HRiSqm) and Survey No.12/1 & 31 admeasuring 09004(HRiSqm) & 05564 (HRiSqm), all situated at mouje Gotri, Tal & Dist. Vadodara . It is also further prayed for appropriate writ, direction and order to quash and set aside the impugned order of Collector, Vadodara dated 25.4.2013, by which, the Collector, Vadodara has rejected the representation submitted by the petitioners to regrant / reconvey the aforesaid lands to the petitioners.
2.1. The petitioners have also further prayed for an appropriate writ, direction and order to declare that the urgency clause under Section 17(1) of the Land Acquisition Act invoked by the respondents for the final Notification No. KM Page 2 of 29 HC-NIC Page 2 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT 92/144/M/JAVND/1492/411/V dated 6.6.1992 is bad, illegal and improper and colourable exercise of power.
2.2. Similar prayer is made by original owners of land bearing Survey no.12/3 by preferring Special Civil Application No. 5027 of 2014. At this stage, it is required to be noted that the land bearing survey no. 12/3 has also been acquired under the provision of the Land Acquisition Act by passing the consent award dated 12.11.1992 along with petitioner of Special Civil Application No. 16035 of 2013.
3.0. For the sake of convenience, Special Civil Application No. 16035 of 2013 is considered and treated as lead matter and for the sake of convenience, the facts stated in Special Civil Application No.16035 of 2013 are narrated.
4.0. That the respective petitioners / their forefathers were the owners of the land bearing Survey No. 533 admeasuring 02226 (HRiSqm) and Survey no. 554 admeasuring 03339 (HRiSqm) and Survey No.12/1 & 31 admeasuring 09004(HRiSqm) & 055 64 (HRiSqm), all situated at mouje Gotri, Tal & Dist. Vadodara. That the respondent State published the notification dated 16.01.1992 under Section 4 of the Land Acquisition Act declared its intention to acquire the land of the petitioners and other agriculturist, more particularly, described in the scheduled appended to the said notification for the public purpose of Land Development Scheme of the Vadodara Urban Development Authority (hereinafter referred to as the "VUDA"). That thereafter, Page 3 of 29 HC-NIC Page 3 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT the notification under Section 6 of the Act came to be published on 6.6.1992 declaring that the land specified in the said notification is needed for the public purpose of Land Development Scheme of the Vadodara. The Special Land Acquisition Officer, Unit2, Vadodara came to be appointed to perform the functions of the Collector for all proceedings to be initiated in respect of the said land. That the respondents thereafter invoked the urgency clause under Section 19(1) of the Act and directed that possession of the land under acquisition shall be taken on expiration of fifteen days from the date of publication of the notice under Section 9(1) of the Act. It appears that thereafter, the respective original land owners agreed for acquisition and they agreed to pass consent award for the lands under the acquisition. Accordingly, consent award came to be passed on 30.11.1992, whereby the compensation at the rate of Rs. 16.91 per sq. ft. was awarded to the petitioners and other persons. That the respective petitioners original land owners were paid the compensation as per the consent award, which the original land owners petitioners accepted the same voluntarily and without raising any objection and / or without protest. That respondent took the possession of the land in question immediately, which the concerned original land owners / petitioners and others handed over the same to the VUDA.
4.1. It is the case on behalf of the petitioners that thereafter respondents, more particularly, VUDA sold some of the plots by plotting the same into small plots, which were acquired by the VUDA along with the petitioners lands acquired and sold the same by holding the public auction, more particularly, land bearing Page 4 of 29 HC-NIC Page 4 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT survey nos. 47/1 and 47/2 belonging to the other agriculturist. Therefore, on the ground that the lands in question are not used for the purpose, for which, they were acquired by invoking urgency clause and they are kept unused / unutilized and therefore, the land is not need by the VUDA for the purpose for which, same were acquired and therefore, the petitioners made a representation to the Collector, Vadodara, vide representation dated 31.3.2012 requested to regrant the acquired land to the petitioners original land owners. That by order dated 25.4.2013 the application of the petitioners to regrant the acquired lands has been filed. Hence, the petitioners have preferred present Special Civil Application for the aforesaid reliefs.
5.0. Shri R.R. Marshall, learned Senior Advocate has appeared with Shri Arpit Kapadia, learned advocate for the petitioners of Special Civil Application No. 16036 of 2013. Shri P.M. Bhatt, learned advocate has appeared in Special Civil Application No. 5027 of 2014. In both these petitions, Shri Hardik Vora, learned Assistant Government Pleader has appeared on behalf of the State Authority and Shri H.S. Munshaw, learned advocate has appeared on behalf of the VUDA.
6.0. It is vehemently submitted by Shri R.R. Marshall, learned counsel for the petitioners that though the land in question came to be acquired in the year 1992 by invoking urgency clause under Section 17(1) of the Act, thereafter, the acquired lands in question are not used / utilized for the purpose for which, the same have been acquired. It is submitted that therefore, at the relevant Page 5 of 29 HC-NIC Page 5 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT time the respondents wrongly invoked the urgency clause.
6.1. It is further submitted by Shri R.R. Marshall, learned counsel for the petitioners that apart from the fact that the lands in question are not used / utilized by the VUDA for the purpose for which, the same have been acquired, even some other lands which were acquired along with the petitioners / original land owners came to be sold by the VUDA by subplotting the same into small plots and by holding public auction and sold the same to the private individual. It is submitted that therefore, even purpose and object of acquiring land for land development scheme of the VUDA has been frustrated. It is submitted that therefore, at the relevant time respondent wrongly invoked the urgency clause under Section 19(1) of the Act.
6.2. Shri Marshall, learned counsel for the petitioners has further submitted that as the lands in question which are acquired in the year 1992 are not utilized / used for the purpose for which the same have been acquired, notification of the urgency clause at the relevant time is nothing but colourable exercise of powers and fraud on the statute. It is submitted that the right conferred upon the land owners to raise objection as provided under Section 5A of the Land Acquisition Act is valuable right. It is submitted that by invoking urgency clause the rights conferred upon the petitioners to raise objection under Section 5A of the Act has been taken away. It is submitted that as held by the Hon'ble Supreme Court in the case of Anand Singh and Another vs. State of Uttar Pradesh and Others reported in (2010) 11 SCC 242 right conferred under Section 5A of Page 6 of 29 HC-NIC Page 6 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT the Act is a valuable right conferred on owner whose lands are sought to be acquired and therefore, neither same can be waived nor the same can be taken away. It is submitted that therefore, invoking urgency clause at the relevant time was colourable exercise of powers, same deserves to be quashed and set aside.
6.3. Shri Marshall, learned counsel for the petitioners has heavily relied upon the following decisions of the Hon'ble Supreme Court and Full Bench of this Court in support of his submission that at the relevant time respondent authority had wrongly invoked the urgency clause.
(1). Greater Noida Industrial Development Authority vs. Devendra Kumar and Others reported in (2011) 12 SCC 375.
(2). Garg Woollen Private Limited vs. State of Uttar Pradesh And others reported in (2012) 11 SCC 784 (para 13). (3). Anand Singh and Another vs. State of Uttar Pradesh and Others reported in (2010) 11 SCC 242 (41). (4). Darshan Lal Nagpal (Dead) By Lrs vs. Government of NCT of Delhi And Ors reported in (2012) 2 SCC 327 (para 26).
(5). Ramdhari Jindal Memorial Trust vs. Union of India and Ors reported in (2012) 11 SCC 370.
(6). Royal Orchid Hotels Limited And Another vs. G. Jayarama Reddy and others reported in (2011) 10 SCC 608. (7). Laxman Lal (Dead) Through Lrs. and Another vs. State of Rajasthan and Ors reported in (2013) 3 SCC 764.Page 7 of 29
HC-NIC Page 7 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT (8). Babubhai Kanjibhai Patel Through Poa Holder Vinodkumar Vs. State Of Gujarat reported in 2014(3) GLR 2165 (Full Bench decision).
Making above submissions and relying upon the above decisions, it is requested to allow the present petitions.
7.0. Shri P.M. Bhatt, learned counsel for the petitioner of Special Civil Application No. 5027 of 2014 has as such adopted the submissions made by Shri R.R. Marshall, learned counsel for the petitioners in Special Civil Application No. 16035 of 2013.
7.1. He has further submitted that in addition to what Shri Marshall, learned counsel for petitioners in Special Civil Application No. 16035 of 2013 and has submitted that once the some of the lands acuired for the same project which were acquired along with the petitioners and which were acquired for the same purpose are sold by the VUDA by holding public auction and by same VUDA made profit out of the same, the purpose and object of acquiring of land has been frustrated and / or it can be said that the lands are not needed for the purpose for which the same have been acquired.
Making above submissions and relying upon the following decisions of the Hon'ble Supreme Court, Shri Bhatt, learned Advocate for the petitioner has requested to allow the present petition and to quash and set aside the action of the respondent in invoking urgency clause, invoked while acquiring the lands in question and has also requested to direct the respondents to re grant/ return the lands to the petitioners.
Page 8 of 29HC-NIC Page 8 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT (1). Ram Dhari Jindal Memorial Trust v. Union of India and Ors. reported in AIR 2012 SC 1878.
(2). Anand Singh Vs. State of UP reported in AIR 2012 SC 412. 8.0. Both these petitions are vehemently opposed by Shri Munshaw, learned advocate appearing on behalf of the VUDA and Shri Hardik Vora, learned Assistant Government Pleader appearing on behalf of the respondent State Authority.
8.1. Shri Munshaw, learned advocate for the VUDA acquiring body has vehemently submitted that the land in question came to be acquired in the year 1992 by invoking urgency clause in the year 1992 and consent award came to be passed in the year 1992 and the petitioners have been agreed for the consent award, meaning thereby, agreed for acquisition of the land in question and thereafter having accepted the amount of compensation as per the consent award, which they accepted in the year 1992 and even handed over the possession to the VUDA in the year 1992, thereafter it is not open for the petitioners to raise objection with respect to invocation of the urgency clause and that too approximately after a period of more than 20 years. It is submitted that therefore, once the petitioners acquiesced with the invocation of the urgency clause and acquisition of land by invoking urgency clause in the year 1992, thereafter having agreed for the consent award, meaning thereby, having agreed for the acquisition of their lands, the petitioners original owners are estopped from challenging invocation of the urgency clause and that too after a Page 9 of 29 HC-NIC Page 9 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT period of 20 years. It is submitted that in the meantime at no point of time the respective petitioners have made any grievance with respect to invocation of the urgency clause, till the year 201213, more particularly, when the urgency clause was invoked in the year 1992.
8.2. It is further submitted by Shri Munshaw, learned advocate for the VUDA that as such some other land owners whose lands were acquired along with petitioners approached this Court by way of Special Civil Application No. 2514 of 2007 and prayed for the very reliefs which are prayed in the present petition and on the very grounds which are mentioned in the present petitions and the Division Bench of this Court vide judgment and order dated 3.12.2007 has dismissed the said petition. It is submitted that judgment and order passed by this Court dated 3.12.2007 passed in SCA No. 2514 of 2007 has been confirmed by the Hon'ble Supreme Court and SLP against the same has been dismissed by the Hon'ble Supreme Court.
8.3. It is further submitted by Shri Munshaw, learned advocate for the VUDA that even subsequently some other original land owners whose lands came to be acquired along with petitioners and which were acquired for the very purpose for VUDA, preferred SCA No. 7009 of 2014 before this Court and prayed for the very relief and on very ground, of which, the reliefs are sought in the present petition and Division Bench of this Court by judgment and order dated 1.4.2016 has dismissed the said petition. It is submitted that while dismissing the said petition, the Division Bench of this Court has taken note of the subsequent Page 10 of 29 HC-NIC Page 10 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT development of Town Planning Scheme etc. and has also noted that the lands in question is still required by the VUDA for the public purpose for which, same were acquired and thereafter, the Division Bench of this Court has refused to grant the relief of regrant / return of the land to the original land owners. It is submitted that the judgment and order passed by the Division Bench of this Court in SCA No. 7009 of 2014 is also confirmed by the Hon'ble Supreme Court.
8.4. Shri Munshaw, learned advocate for the VUDA has also heavily relied upon the affidavit in reply filed on behalf of the VUDA filed in respective petitions and has submitted that lands acquired by the VUDA acquired for the Urban Development Scheme, has been used in part and is going to be used for the construction of the residential house for the benefit of weaker section of the society and the middle income group and for urban poor and for affordable houses. It is submitted that for the s0me time development purpose was stalled due to fact that land in question was merged within the area of TP scheme and there was reconstitution of plots under the TP Scheme. It is submitted that therefore, it cannot be said that the land in question are not required for the purpose, for which, the same are acquired and / or smae are not required for any public purpose.
8.5. It is submitted that relying upon the affidavit in reply that after construction of residential houses, the same are allotted and / or being allotted to the poor people without recovering anything from them and the entire cost will be borne by the VUDA.
Page 11 of 29HC-NIC Page 11 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT It is submitted that therefore to meet with the expenditure, the VUDA is required to generate income and therefore, there is a requirement of selling some plots to generate the income to meet with the expenditure of residential houses. It is submitted that even under the provisions of the Town Planning Act, sale of some of the plots by holding public auction, more particularly, as per Section 40 is permissible. It is submitted that therefore, merely because some of the plots might have sold by holding public auction, it cannot be said that the VUDA is making profit and / or purpose for which the lands have acquired has vanished and/ or frustrated.
Making above submissions and relying upon the above decisions of the Division Bench of this Court confirmed by the Hon'ble Supreme Court, it is requested to dismiss the present petitions.
9.0. Heard the learned counsel for the respective parties at length.
9.1. At the outset, at the outset, it is required to be noted that by way of these petitions under Article 226 of the Constitution of India which have been filed in the year 2013 and 2014 respectively, the respective petitioners original land owners have prayed for an appropriate writ, direction and order directing the respondents to regrant the land in question to them mainly on the ground that the lands in question are not utilized / used for the purpose, for which, the same have been acquired and by not using the lands for considerable long period, the purpose for which the land has been acquired has frustrated and also on the ground that the lands are not required for the purpose for which, they have been acquired.
Page 12 of 29HC-NIC Page 12 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT The respective petitioners have also challenged the invocation of the urgency clause 17(1) of the Land Acquisition Act, 1894. However, it is required to be noted that as such the lands in question have been acquired by invoking urgency clause way back n the year 1992. The consent award came to be passed with the consent of the petitioners herein original land owners in the year 1992 and the respective petitioners have been paid the compensation as per the consent award in the year 1992. That the possession of the lands in question have been taken over from the original land owners petitioners herein way back in the year 1992. At no point of time till in the year 201213 the petitioners original land owners made any grievance invoking the urgency clause. In light of the above facts and circumstances, the reliefs sought in the present petitions are required to be considered.
9.2. At the outset, it is required to be noted that as such in the year 2007, some other land owners whose lands have been acquired along with the petitioners which were acquired for the very purpose for which the lands of the petitioners have been acquired, preferred Special Civil Application No. 2514 of 2007 and sought the very reliefs which are now sought by the petitioners in the present petitions. That by detailed judgment and order considering the material on record and the requirement of the lands for VUDA, the Division Bench dismissed the said petition. That the judgment and order passed by the Division Bench of this Court in the case of Bhogilal Punjabhai Patel vs. State of Gujarat rendered in Special Civil Application No. 2514 of 2007 has been confirmed by the Hon'ble Supreme Court.
Page 13 of 29HC-NIC Page 13 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT 9.3. It is also required to be noted that thereafter recently one another petition was preferred before this Court by some other land owners whose lands are acquired along with the petitioners and were acquired for the very purpose for which, the lands of the petitioners have been acquired by way of Special Civil Application No.7009 of 2014. The similar submissions were made before the Division Bench and similar prayers were made with the similar submissions which are made in the present petition. That by detailed judgment and order and taking note of the subsequent events of the lands in question and other lands acquired brought within the Town Planning Scheme under the Gujarat Town Planning Act, the Division Bench of this Court has dismissed said Special Civil Application. The Division Bench had also taken note of the lands already used and going to be used by the VUDA and to be used for the weaker section of the society. While dismissing the aforesaid Special Civil Application and dealing with the similar submissions / grounds which are raised in the present petitions, the Division Bench in para 9 to 14 has observed and held as under:
"9. Many years later, this fresh petition has been filed, virtually for the same purpose. Of course, an additional element is sought to be involved in the nature of the said letter dated 26.03.2008 written by the Vadodara Urban Development Authority to the Commissioner, Vadodara Municipal Corporation. On the basis on this letter the petitioners contend that the land is no longer needed on account of diminished demand for housing. On such additional ground, now the petitioners make same set of prayers namely for declaring the acquisition as invalid for having wrongly invoked urgency under Section 17 of the Act and for regrant of the land since the purpose for which the land was acquired is no longer possible to be achieved.Page 14 of 29
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10.For multiple reasons, such prayers cannot be granted. First and foremost, the entire issue was examined by the earlier Division Bench at considerable length in the above noted judgment dated 03.12.2007. It may be that such petition was filed only by present petitioner No.3 and the other three petitioners were not parties to such proceedings. In the strict sense of term therefore this judgment may not act as a resjudicata qua petitioners No.1, 2 and 4. Nevertheless, the entire petition was concerning the land acquisition of this very land bearing Survey Nos.556/1 and 556/2 of Gotri. If the other petitioners did not file earlier petition, but one of the family members and coowners did, they cannot claim ignorance about such proceedings which in any case they have not. Immediate question therefore, would be, would they be allowed to raise same contentions more than 20 years later without any reference to the question of delay and latches? Either they concede that the petitioner No.3 was acting for and on behalf of all petitioners when he filed the earlier petition in which case all of them would be bound by the High Court judgment, or they must explain why they remained silent for so many years.
11.Even otherwise, the question of raising objection to the acquisition in terms of Section 5A of the Act when the lands were acquired with consent would be a debatable one when the petitioners had willingly and voluntarily surrendered their land at an agreed rate of compensation offered by the authorities. They never objected to invocation of urgency clause at the relevant time. The question immediately would arise whether they can raise the question of denial of right to object?
12.We may however, examine the question of nonutilization of land finally, though this question was also examined by the High Court in the petition filed by the petitioner No.3. Even then, the Vadodara Urban Development Authority has presented satisfactory explanation for not being able to utilize the land timely. In the affidavit in reply, following averments have been made which are substantially undenied:
4. The respondent No.3 however submits that even the contents of non development of land raised by the petitioners by way of reiteration even in the present Special Civil Application are contrary to the facts and material on record. It is submitted that the land bearing revenue survey No.556/1 and 556/2 of Village Gotri was acquired as a huge project of establishing a Transport Nagar was undertaken by Vadodara Urban Development Authority. It is submitted that land acquisition proceedings were undertaken between 1992 to 1994 for acquisition of various revenue survey numbers in Page 15 of 29 HC-NIC Page 15 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT accordance with the provisions of Land Acquisition Act, 1894. It is submitted that the land owners of revenue survey No.556/1 and 556/2 of Village Gotri agreed for consent award and therefore, a Committee was appointed for fixation of market price and after considering various aspects and even discussion with the land owners, it was decided that the market rate would be between Rs.110 to Rs.182/. The respondent No.3 submits that subsequently the consent award dated 12/12/1992 was published and a copy of the said Award is annexed herewith and marked as AnnexureC. It is most respectfully stated that so far as the present petitioners are concerned, they were paid the compensation at the agreed rates and compensation of the land was handed over by them.
The respondent No.3 submits that so far as the land bearing revenue survey No.572/1 (Paiki) of Village Gotri is concerned, the same was sub plotted for the members of Middle Income Group of the Society and were sold by way of holding auction. The respondent No.3 submits that Vadodara Urban Development Authority has planned a Housing Scheme of 4000 residential units for the members of economically weaker section and lower income group and again the land price would not be counted while computing the cost of the house. In other words, the authority has always considered the interest of beneficiaries belonging to the lower strata of the Society. It is required to be pointed out that the responding authority is providing infrastructural facilities to the beneficiaries as well as the residents of surrounding area by way of planning development of the entire area. The authority has to spend a huge amount on infrastructural facilities and for that it has to plan its income as well as funds from other sources.
5. The respondent No.3 denies the averments and allegations that the land acquired by Vadodara Urban Development Authority is remained unused. It is most respectfully stated that in all 1522 Houses for the members of economically weaker section were constructed on land bearing revenue survey No.536, 542, 528, 537 & 538/1 admeasuring in all 26,145 sq.meters. It is pertinent to note that the cost of land was not charged from the beneficiaries under the Scheme as the same were meant for the members of economically weaker section only and hence it is clear that respondent No.3 has not acted for the welfare of the public at large.
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6. The respondent No.3 submits that so far as the land bearing revenue survey No.572/1 (Paiki) of Village Gotri is concerned, the same are now within the territorial jurisdiction of Vadodara Municipal Corporation and it has planned a Town Planning Scheme. The respondent No.3 submits that revenue survey No.12/1, 31, 47/2 and 47/1 of Village Gotri are covered within the Town Planning Scheme No.60 (Gotri) while revenue survey No.556/1 and 556/2 originally owned by the present petitioners are under Town Planning Scheme No.1 (Gotri). It is submitted that Vadodara Municipal Corporation has declared its intention qua preparing of a Town Planning Scheme No.61 (Gotri) on 20/07/2000 under the provisions of Section41 of Gujarat Town Planning & Urban Development Act, 1976. It is submitted that from the date of declaration of award on 20/07/2000 it has become impossible for Vadodara Urban Development Authority to undertake developmental activities under the provisions of Section 49 of the Act. It is humbly stated that Vadodara Municipal Corporation has submitted draft town planning Scheme No.61(Gotri) to the Government of Gujarat and the same is sanctioned and thereafter a Town Planning Officer is appointed in the year 2002. The respondent No.3 submits that as per the provisions of the Act, as soon as draft town planning Scheme is sanctioned by the State Government and the town planning officer is entrusted the draft town planning scheme for further action and finalization, the land of the entire area is in the jurisdiction of town planning officer. The respondent No.3 submits that the Act further provides that the Preliminary Town Planning Scheme is to be prepared by the Town Planning Officer and submitted to the State Government for further action and thereafter the respondent No.1 has to follow the due procedure laid down under the provisions of Act before granting the sanction to the Preliminary Town Planning Scheme. It is submitted that in view of this, the possession of final plots is to be handed over by Vadodara Municipal Corporation in the instant case subsequent to sanction of Preliminary Town Planning Scheme by Government of Gujarat. It is submitted that in the instant case revenue survey No.556/1 & 556/2 of Village Gotri are given original plot No.34 and final plot No.34 in Town Planning Scheme No.61 of Gotri, but as the said Town Planning Scheme is still pending before the Town Planning Officer Page 17 of 29 HC-NIC Page 17 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT and further actions are pending, it is not possible for Vadodara Urban Development Authority to plan the development of the land. It is required to be pointed out that possession of the final plot No.34 is required to be handed over to Vadodara Urban Development Authority after following the provisions of Section67 & 68 of the Act and till then the respondent No.3 is not in a position to undertake any exercise for the development. In view of this, it is crystal clear that the averments & allegations made by the petitioners about non use of land are thoroughly baseless. It is stated that the petitioners have no right, title or interest in the land in question once the possession of the land is handed over to the respondent No.3 after entering into an Award and after acceptance of compensation determined at the market rate. The respondent No.3 craves leave to state that Vadodara Urban Development Authority is very much required the land in question for public purpose, but due to pending proceedings narrated hereinabove, it has to wait before taking further action.
13.From the above, it can be seen that after acquiring the petitioners' land and those of other land owners in the region through consent awards, the Vadodara Urban Development Authority constructed as many as 1522 residential units for weaker sections of the society utilizing 26,145 sq.mtrs. of acquired land. The authority also had planned for further 4000 such residential units again for the weaker section of the society. However, before such plan could be implemented, Vadodara Municipal Corporation initiated the steps of framing Town Planning Schemes. A draft scheme has already been framed. The final plots in various survey numbers falling within the schemes have not yet been handed over by the Corporation to Vadodara Urban Development Authority. Counsel for the Vadodara Urban Development Authority submitted that Vadodara Urban Development Authority has not shelved the plan for conservation of residential units and as and when the possession of final plots is handed over, Vadodara Urban Development Authority would undertake further steps in this regard. We may note that the letter dated 26.03.2008 written by the Chief Executive Authority of Vadodara Urban Development Authority does not represent a final decision, but only presents certain facts emerging at that time. This communication cannot be seen as a decision of Vadodara Urban Development Authority to drop the plan for further development of scheme for housing for weaker section of the societies.
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14. Assuming that on account of reduced demand, the Vadodara Urban Development Authority is now going to build houses on the land, the same is a new development after acquisition due to changed circumstances. This cannot be a ground for regrant of the land to the original owner. As held by the Supreme Court in number of decisions, references to some of which we find in the earlier judgment of the High Court noted above, once the land is validly acquired for the public purpose, the same cannot be regranted to the original owners. It may be used for any other public purpose or even disposed of through auction."
10. Now, present petitions are preferred by the some other land owners, however that the very prayers which were sought in the earlier petition and on the very grounds which were raised in the aforesaid Special Civil Applications. It is required to be noted that the decision of the Division Bench of this Court in Special Civil Application No. 7009 of 2014 is also reported to be confirmed by the Hon'ble Supreme Court.
10.1. We have considered and gone through the decision of this Court in the case of Bhogilal Punjabhai Patel vs. State of Gujarat rendered in Special Civil Application No. 2514 of 2007 as well as in the case of Lalitbhai Punjabhai Patel vs. State of Gujarat rendered in Special Civil Application No. 7009 of 2014, by which, two Division Benches of this Court have refused to grant similar reliefs which are sought in the present petitions. As such, we are in complete agreement with the view taken by the Division Benches in aforesaid Special Civil Application Nos. 2514 of 2007 and 7009 of 2014. Therefore, as such for the reasons stated in the said decisions, present petitions also deserve to be dismissed.
Page 19 of 29HC-NIC Page 19 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT 10.2. However, the learned counsel for the respective parties have submitted that some additional grounds have been raised in the present petitions. However, as such we do not find any other additional grounds raised in the present petition. Still, we are dealing with the submissions made by the learned counsel for the respective parties independently.
10.3. It is the case on behalf of the respective petitioners that as number of years have passed after lands were acquired after invoking urgency clause, the same are not utilized/ used by the VUDA and as such some other lands which were acquired along with the, petitioners are sold by public auction and sold to the private persons and therefore, either the purpose for which lands have been acquired is frustrated and / or lands are not needed by the VUDA. As such, the aforesaid submissions have been considered by the Division Bench of this Court in the case of Lalitbhai Punjabhai Patel (supra).
10.4. Even otherwise, considering the affidavit in reply filed on behalf of the VUDA, it cannot be said that the lands in question are not needed by the VUDA for the public purpose and / or for the purpose for which, they are acquired. It is required to be noted that lands in question were acquired for the VUDA for Urban Development i.e. for the construction of the residential houses. A judicial notice can be taken even with respect to the requirement of residential houses for the weaker section of the society and / or middle income group of the society.
Page 20 of 29HC-NIC Page 20 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT 10.5. In the affidavit in reply, it is specifically denied that the lands acquired by the VUDA are remained unused. It is stated that in all 1522 houses for the members of the economically weaker section were constructed on the land bearing revenue survey nos. 536, 542, 528, 537 and 538/1 admeasuring in all 26145 sq mtr. It is reported that VUDA has not charged any cost of lands from the beneficiaries under the scheme as the same were meant for the members of economically weaker section only. It is further stated that VUDA has planned a Housing Scheme of 4000 residential units for the members of economically weaker section and lower income ground and again land price would not be recovered while computing the cost of the house.
10.6. It is further stated in the affidavit in reply that so far as lands in question are concerned, subsequently the same are now within the territorial jurisdiction of the Vadodara Municipal Corporation and under the Town Planning Scheme No.16 (Gotri) and final plot numbers are given in lieu of their original survey numbers. That the Vadodara Municipal Corporation has declared its intention qua preparing Town Planning Scheme No.61 (Gotri) under the provisions of the Gujarat Town and Urban Development Act and therefore, the development activities to be carried out by the VUDA has been affected. Merely because of some administrative hurdles, the development activities have been slowed down, it cannot be said that lands in question are not needed by the VUDA, for the purpose, for which, the same have been acquired. Considering the affidavit in reply, it appears that lands in question are still needed by the VUDA for the construction Page 21 of 29 HC-NIC Page 21 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT of residential houses for the benefit of lower strata of the society and weaker section of the society and members belonging to the lower income grade and middle income group. Under the circumstances, the prayer of the petitioners to regrant the lands to the petitioners, cannot be accepted on the ground that the lands in question are not needed by the VUDA for the purpose for which the same have been acquired. As such, the aforesaid submissions have been considered by the Division Bench while deciding the Special Civil Application No. 7009 of 2014.
11. Now, so far as submission on behalf of the petitioners that some other lands which were acquired by the VUDA, acquired along with petitioners were sub plotted and sold by public auction and therefore, lands in question are not needed by the VUDA for the purpose for which the same have been acquired is concerned, it is required to be noted that as such merely because for whatever reasons, some lands might have been sub plotted and might have been sold by public auction, it cannot be said that the lands in question are not needed by VUDA for the purpose for which, the same have been acquired. There may be number of reasons for sub plotting the lands and selling it by public auction, viz. as to meet with the expenditure of construction and the cost of lands as it is reported that the cost of land is not recovered from the beneficiary i.e. from the weaker section of the society and members of lower income group. Under the circumstances, on the aforesaid ground, lands cannot be returned to the petitioners.
12. Now, so far as challenge to the invocation of urgency clause Page 22 of 29 HC-NIC Page 22 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT now and reliance placed upon the decision of the Hon'ble Supreme Court referred to herein above on urgency clause is concerned, at the outset, it is required to be noted that as such the lands in question came to be acquired in the year 1992 by invoking urgency clause in the year 1992. That the consent award came to be declared in the year 1992 and the petitioners have been paid compensation as per consent award in the year 1992 and the possession of the lands in question have been taken over from the petitioners original land owners in the year 1992. As observed hereinabove, at no point of time, the petitioners have made any grievance invoking the urgency clause. The petitioners in fact at the relevant time agreed for acquisition and as such agreed for the consent award. Such a grievance against invocation of the urgency clause has been raised after a period of approximately 20 years. In the meantime, the development in the lands acquired had already taken place as stated in the affidavit in reply and the development in the lands in question is being undertaken and the lands in question are as such very much needed. Therefore, as such it is not open for the petitioners to challenge invocation of the urgency clause after a period of 20 years. Under the circumstances and in the facts and circumstances of the case, none of the decisions relied upon by the learned counsel for the respective petitioners shall be of any assistance to the petitioners.
12.1. Now, so far as submission on behalf of the petitioners that at the relevant time by invoking the urgency clause, it was colourable exercise of powers and therefore, acquisition deserved to be quashed is concerned, the submission seems to be on the Page 23 of 29 HC-NIC Page 23 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT ground that some land was sub plotted and same were sold by public auction. However, it is required to be noted that as such on the aforesaid, it cannot be said that authority at the relevant acted mala fide and it was colourable exercise of powers. As observed herein above, as such it will not be open for the petitioners to challenge the invocation of the urgency clause after a period of 20 years, more particularly, when even today the lands are needed for the public purpose for which, the same are acquired. However because of the subsequent development and events, more particularly, including the lands in question in the Town Planning Scheme and the Vadodara Municipal Corporation, the development could not be undertaken. Under the circumstances, present petitioners are not entitled to relief as claimed in the present petition.
13. Now, so far as reliefs sought by the petitioners to re grant the lands to the petitioner again is concerned, as observed herein above, the lands have been acquired for public purpose in the year 1992. The respective petitioners original land owners have been paid the compensation as per the consent award in the year 1992 and the possession of the lands in question have been taken over from them in the year 1992. The lands in question are needed and required for the public purpose for which the same have been acquired. As per Section 16 of the Land Acquisition Act, 1894 once the land is acquired for a public purpose and the compensation is paid and the possession is taken over, the acquired land absolutely vest in the acquiring body and thereafter the original lands owners have no right, title and interest in the lands Page 24 of 29 HC-NIC Page 24 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT acquired.
14. In the case of C. Padma & Ors. vs. Dy. Secretary to the Govt. of T.N. & Ors. [(1997) 2 S.C.C. 627], the Supreme Court has held that once the acquired land having vested in the State Government after paying compensation to the claimants, the claimants are not entitled to restitution of the possession on the ground that either original public purpose had ceased to be in operation or the land could not be used for any other purpose.
14.1. In the case of Chandragauda Ramgonda Patil & Anr. vs. State of Maharashtra & Ors., [(1996) 6 S.C.C. 405], the Supreme Court has held that the land acquired for a public purpose can be utilised for any other public purpose and once possession of the land is taken and land is vested in the Municipality free from all encumbrances, restitution of surplus land to the erstwhile owner cannot be ordered.
14.2. In the case of State of Kerala & Ors. vs. M. Bhaskaran Pillai & Anr., [AIR 1997 SC 2703], the Supreme Court has held that the land remaining unutilised after achieving the public purpose should be put to public auction instead of disposal by way of sale to the erstwhile owner.
14.3. At this stage, decision of the Hon'ble Supreme Court in the case of Chandrasekaran and Another Vs. Administrative Officer and Others reported in (2012) 12 SCC 133 is required to be referred to. In the aforesaid decision in paragraph nos.25 to 31 Page 25 of 29 HC-NIC Page 25 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT Honble Supreme Court has observed and held as under;
"25. It is a settled legal proposition, that once the land is vested in the State, free from all encumbrances, it cannot be divested and proceedings under the Act would not lapse, even if an award is not made within the statutorily stipulated period. (Vide: Avadh Behari Yadav v. State of Bihar &. Ors., (1995) 6 SCC 31; U.P. Jal Nigam v. Kalra Properties (P) Ltd. (Supra); Allahabad Development Authority v. Nasiruzzaman & Ors., (1996) 6 SCC 424, M. Ramalinga Thevar v. State of Tamil Nadu & Ors., (2000) 4 SCC 322; and Government of Andhra Pradesh v. Syed Akbar & Ors., AIR 2005 SC 492).
26. The said land, once acquired, cannot be restored to the tenure holders/personsinterested, even if it is not used for the purpose for which it was so acquired, or for any other purpose either. The proceedings cannot be withdrawn/abandoned under the provisions of Section 48 of the Act, or under Section 21 of the General Clauses Act, once the possession of the land has been taken and the land vests in the State, free from all encumbrances. (Vide: State of Madhya Pradesh v. V.P. Sharma, AIR 1966 SC 1593; Lt. Governor of Himachal Pradesh & Anr. v. Shri Avinash Sharma, AIR 1970 SC 1576; Satendra Prasad Jain v. State of U.P. & Ors., AIR 1993 SC 2517; Rajasthan Housing Board & Ors. v. Shri Kishan & Ors., (1993) 2 SCC 84 and Dedicated Freight Corridor Corporation of India v. Subodh Singh & Ors., (2011) 11 SCC 100).
27. The meaning of the word 'vesting', has been considered by this Court time and again. In Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344, this Court held that the meaning of word 'vesting' varies as per the context of the Statute, under which the property vests. So far as the vesting under Sections 16 and 17 of the Act is concerned, the Court held as under. (AIR p.353, para 19) "19........In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or ; limitations either as to title or possession.
The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration.
28. In Gulam Mustafa & Ors. v. State of Maharashtra & Ors., Page 26 of 29 HC-NIC Page 26 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT AIR 1977 SC 448, in a similar situation, this Court held as under: (SCC p.802, para 5) "5.....Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the &.declaration.
29. Similarly, in State of Kerala & Anr. v. M. Bhaskaran Pillai & Anr., (1997) 5 SCC 432, this Court held as under: (SCC p.433, para 4)
4......It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution.
(See also: C. Padma & Ors. v. Deputy Secretary to the Government of Tamil Nadu & Ors., (1997) 2 SCC 627; Bhagat Singh v. State of U.P. & Ors., AIR 1999 SC 436; Niladri Narayan Chandradhurja v. State of West Bengal, AIR 2002 SC 2532; Northern Indian Glass Industries v. Jaswant Singh & Ors., (2003) 1 SCC 335; and Leelawanti & Ors. v. State of Haryana & Ors., (2012) 1 SCC 66).
30. In Government of Andhra Pradesh & Anr. v. Syed Akbar (Supra), this Court considered this very issue and held that, once the land has vested in the State, it can neither be divested, by virtue of Section 48 of the Act, nor can it be reconveyed to the persons interested/tenure holders, and that therefore, the Page 27 of 29 HC-NIC Page 27 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT question of restitution of possession to the tenure holder, does not arise. (See also: Pratap v. State of Rajasthan, AIR 1996 SC 1296; Chandragaudaj Ramgonda Patil v. State of Maharashtra, (1996) 6 SCC 405; State of Kerala & Ors. v. M. Bhaskaran Pillai & Anr., AIR 1997 SC 2703; Printers (Mysore) . Ltd. v. M.A. Rasheed & Ors. (2004) 4 SCC 460; Bangalore Development Authority v. R. Hanumaiah, (2005) 12 SCC 508; and Delhi Airtech Services (P) Ltd. & Anr. v. State of U.P. & Anr. (2011) 9 SCC 354).
31. In view of the above, the law can be crystallized to mean, that once the land is acquired and it vests in the State, free from all encumbrances, it is not the concern of the land owner, whether the land is being used for the purpose for which it was acquired or for any other purpose. He becomes persona nongrata once the land vests in the State. He has a right to only receive compensation for the same, unless the acquisition proceeding is itself challenged. The State neither has the requisite power to re convey the land to the person interested, nor can such person claim any right of restitution on any ground, whatsoever, unless there is some statutory amendment to this effect.
14.4. Identical question came to be considered by the Division Bench of this Court in the case of Subodhchandra Gulabbhai Desai Vs. State of Gujarat reported in 2001 (3) GLR 2134. In the aforesaid decision, the Division Bench has observed that as and when the land is acquired by the Government for public purpose it can be utilized for any public purpose and once the land is acquired, it becomes vested in the Government and there is no question of any enforceable right with the original land owner in case the same is not utilized. It is further observed that as such the land may remain in the process of utilization and may be utilized by the Government or the acquiring body for whose benefits such lands are acquired and no regrant can be claimed by any party as Page 28 of 29 HC-NIC Page 28 of 29 Created On Thu Aug 17 23:01:51 IST 2017 C/SCA/16035/2013 CAV JUDGMENT an enforceable right before the Court of law.
14.5. Considering the aforesaid facts and circumstances, more particularly, when the lands in question are still needed for the public purpose, more particularly, urban development and more particularly, residential houses of which the beneficiaries would be members of the weaker section of the society; members of lower income and members of middle income group and that VUDA is performing the statutory duties and in the larger public interest, the petitioners are not entitled to any reliefs which are sought in the present petition.
15. In view of the above and for the reasons stated above, both the petitions fail and same deserve to be dismissed and are accordingly dismissed. Rule discharged in both the petitions. No costs.
sd/ (M.R. SHAH, J.) sd/ (B.N. KARIA, J.) Kaushik Page 29 of 29 HC-NIC Page 29 of 29 Created On Thu Aug 17 23:01:51 IST 2017