Gujarat High Court
Navinchandra M. Randoria And Ors., Etc. vs State Of Gujarat And Ors. on 18 October, 1988
Equivalent citations: AIR1989GUJ209, (1989)1GLR330, AIR 1989 GUJARAT 209
JUDGMENT Gokulakrishnan, C.J.
1. In the special civil application No.4387/86 the petitioners have prayed for issuing a writ of mandamus or any other writ, direction or order for declaring S. 6 Notification at Annexure-C to the petition as illegal and void in law and direct the respondents therein not to take any proceeding under the provisions of the said Act based on such S. 6 Notification. In special civil application No. 6718/87 the very same relief is prayed for in respect of the petitioners Nos. 9, 10, 11 and 12 in special civil application No. 4387/86 who have been dropped as on date from the array of petitioners mentioned in special civil application No. 4387/86. The petitioners in special civil application No. 6718/87 have filed the petition separately since, according to them, the Nondh numbers which are 8 18 and 81.9 are not mentioned in the notice issued under S. 210 of the Bombay Provincial Municipal Corporations Act and for other reasons.
2. Learned counsel appearing for the respective parties in these special civil applications agree that these special civil applications may be treated as fully heard and disposed of finally by a judgment. Hence Rule is issued, arguments heard and the following judgment is passed.
3. The short facts of this case for the purpose of disposing of this petition are that the petitioners have residential premises in the road sought to be widened and the same is situated in the city of Surat. They are residing in these buildings for number of years and it is impossible for them to move away from these buildings since it is very difficult to get any alternate accommodation for them in the city of Surat. It is the say of the petitioners that on the opposite side of their residential houses there are dilapidated houses which are not used by anybody for residential purposes and they can be acquired for the purpose of widening the road. The Surat Municipal Corporation has proposed a roadline in order to widen the road on which the houses of the petitioners are situated. According to the roadline, the 10 ft. front portion of the petitioners' residential houses will be taken away for the purpose of widening the road. The petitioners contend that if these 10 ft. in the front portion of their respective houses are taken away, their residential buildings will become useless rendering them homeless.
4. The Surat Municipal Corporation had declared by public notice the roadline put up in Ward No. 9 at Nondh Nos. 817 to 823. The petitioners, have also filed objections for the proposed roadline, inter alia stating that the alignment can be different and that the buildings which are dilapidated on the opposite side of the petitioners' houses may be acquired.
5. The Surat Municipal Corporation has requested the Government to acquire the land of the petitioners at Ward No. 9 under the provisions of the Land Acquisition Act. The Government of Gujarat, in exercise of the power conferred on it by the Land Acquisition Act, published Notification dated 5th June 1979 tinder S. 4 of the Land Acquisition Act. Objections were called for and the petitioners have filed their objections. After perusing the objections and hearing the parties S. 6 Notification was published on 27th August 1982. Subsequently S. 9 Notification was served upon the petitioners. According to the petitioners, the possession has not yet been taken over from them and in the meanwhile the petitioners have come forward with the above said special civil application.
6. It is the case of the petitioners that the Surat Municipal Corporation gave a public notice pertaining to laying the roadlines and invited objections. This was done under the power vested with them by S. 210 of the Corporations Act. The notice was published in the local newspaper dated. 24th April 1979. According t6the petitioners, the land has to be acquired under Ss. 210 and 216 of the Corporations Act, and if such acquisition is made, the petitioners will stand to gain since the compensation will be paid on the date of acquisition including the loss of goodwill, etc. It is the say of the petitioners that the Municipal Corporation, in order to avoid paying higher rate of compensation, with mala fide intention invoked the provisions of the Land Acquisition Act by requesting the State of Gujarat to acquire the land. Elaborating the acquisition under the Land Acquisition Act the petitioners contend that the exercise of power under the provisions of Land Acquisition Act is a fraud upon the power. In respect of special civil application No. 6718/87 wherein the Nondh numbers 818 and 819 are included, the petitioners state that Municipal Corporation has not included the Nondh numbers 818 and 819 while prescribing the roadline and hence, according to the petitioners, the acquisition made for the purpose of roadline in respect of these Nondh numbers is illegal and bad in law. As regards the mala fides, the petitioners contended that in order to oblige influential persons, the roadline is aligned in such a way to affect the petitioners and poor people, and that such roadline, in the opinion of the petitioners, will create unnecessary traffic bottlenecks and accidents instead of free-flow of traffic. Thus, according to the petitioners, the acquisition smacks with mala fides and it is a clear case of fraud upon power.
7. With the above said allegations the petitioners have come forward with the abovementioned special civil applications. After issuing notice pending admission to the respondents herein, the matter was taken up for admission. We heard the respective Counsel for the petitioners and respondents. Mrs. K. A. Mehta, learned counsel appearing for the petitioners, submitted that S. 6 Notification was issued beyond the period of 3 years from the date of S. 4 Notification and as such the acquisition proceedings have to be quashed. The second contention of the learned counsel for the petitioner is that the Bombay Provincial Municipal Corporations Act (BPMC Act for short) is a self-contained Code and that any acquisition for roadline should be made under the provisions of Ss. 210 to 216 of the Corporation Act and not through Land Acquisition Act.
8. The third contention of Mrs. Mehta, learned counsel appearing for the petitioners is that it is a mala fide action on the part of the Municipal Corporation to acquire the land under Land Acquisition Act in spite of the fact that they have enough power under the BPMC Act which is a self-contained Code to acquire the lands for the roadline. The learned counsel for the petitioners contend that this is done only for the purpose of avoiding paying more compensation to the petitioners herein if it is, acquired under the BPMC Act. In connection with the allegation of mala fides Mrs. Mehta also read the press report and contended that in order to oblige certain rich and politically influential parties the roadline was demarcated to acquire the ea under -the occupation of the present petitioners. The learned counsel further stated that if the roadline is properly demarcated instead of the present one, which has been done with mala fide intention, the area under the occupation of the petitioners will not be affected.
9. The fourth contention submitted by Mrs. Mehta is that the Municipal Corporation acted in flagrant violation of principles of natural justice offending Art. 14 of the Constitution by invoking the provisions of the Land Acquisition Act for the purpose of acquiring the lands for roadline. The learned counsel contended that the power vested with the Corporation under the Municipal Corporation Act is given a go -by and the provisions of the Land Acquisition Act have been invoked just to discriminate between persons similarly situated. In this case, by invoking the provisions of the Land Acquisition Act, greatest injustice is being perpetrated upon the petitioners herein just to avoid paying enough compensation to them. Such arbitrary choosing by the Municipal Corporation, in order to acquire the lands, clearly offends Art. 14 of the Constitution and as such the proceedings taken under the Land Acquisition Act in this case have to be struck down.
10. As fifth contention Mrs. Mehta, learned counsel appearing for the petitioners submitted that as far as Nondh numbers 818 and 819 which are the subject matter of special civil application No. 6718/87 are concerned, no notice in respect of those numbers was given under S. 210 of the BPMC Act, and hence acquisition for roadline in respect of these Nondh numbers cannot be sustained. She has further contended that these Nondh numbers 818 and 819 find place in S, 4 and S. 6 Notification and as such there is a failure on the part of the Municipal Corporation to spell out these Nondh Nos. 818 and 819 in the notice given under S. 210 of the BPMC Act. In the absence of such notice in respect of these Nondh numbers, these Nondh numbers cannot be acquired.
11. Mr. G. N. Desai, who appears on notice for the Surat Municipal Corporation, submitted- that there is absolutely no mala fides or arbitrary exercise of power by the Municipal Corporation in acquiring these lands through Land Acquisition Act; that inasmuch as the relief claimed is only to quash S. 6 Notification, the submissions made by Mrs. Mehta, learned counsel for the petitioners, in respect of various other aspects of the case cannot be sustained; and that the acquisition for which S. 4 Notification was issued in 1979 is being challenged only in 1987 and as such the petition has to be dismissed on the ground of delay alone. Mr. G. N. Desai, learned counsel appearing for the Surat Municipal Corporation further contended that it is open to the Municipal Corporation to invoke the provisions of the Land Acquisition Act to acquire lands through the Government for public purposes and that there is absolutely no prohibition to invoke the provisions of the Land Acquisition Act for the purpose of getting the property to widen the roads. It is the say of Mr. G. N. Desai that the portion now being acquired under the Land Acquisition Act is in respect of the roadline prescribed as early as 1944 when the Bombay Municipal Boroughs Act was in force and as such the provisions of the Provincial Municipal Corporation Act, which came much later to the prescribing of the roadlines in 1944 cannot be pressed into service. Even apart from this, Mr. G. N. Desai submitted that there cannot be any disadvantage worth mentioning in awarding compensation by invoking either the provisions of Bombay Provincial Municipal Corporation Act or the Land Acquisition Act.
12. As regards mala fides alleged by the petitioners, Mr. G. N. Desai, learned counsel for the Municipal Corporation, submitted that the petitioners never whispered anything about mala fides in the 5A inquiry nor anything mentioned in the original petition filed by them before the amendment was carried out. Even in the amendment carried out, according to Mr. G. N. Desai, there is absolutely no mala fide spelt out against the State Government and as such the acquisition which was done by the State Government cannot be questioned. In any event, according to Mr. G. N. Desai, there are absolutely no particulars mentioned regarding the mala fides both in the original petition and in the amended petition and as such the acquisition of mala fides should be rejected in limine. As regards the Nondh numbers 818 and 819 are concerned, which according to the learned counsel for the petitioners are not mentioned in the notice given under S. 210 of the BP11C Act, Mr. G. N. Desai submitted that Nondh number 817 should be deemed to include the Nondh numbers 818 and 819 also. Mr. G. N. Desai has also filed the affidavit sworn by Jivanbhai M. Patel, Town Planner, Surat Municipal Corporation, wherein it is stated that, by mistake City Surety Nos. 818 and 819 of Ward No. IX were mentioned in the proposal and that is why in the Notification issued under Ss. 4 and 6 of the Land Acquisition Act such numbers were mentioned. The affidavit further states that as early as 28th February 1935, the area of City Survey numbers 818 and 8 19 was added to the area of City Survey No. 817 and since the property covered by the said City Survey numbers 817, 818 and 819 belonged to a single owner and since the properties were contiguous an order was passed deleting City Survey numbers 818 and 819 amalgamating the City Survey numbers 818 and 819 with City Survey No. 8 17. It is further stated that, even in the property register maintained by the City Survey Office, such amendments were made. It is also stated in the reply given by the City Survey Superintendent, Surat dated 20th August 1988 making it clear that tile area of City Survey numbers 818 and 819 was amalgamated in tile area of City Survey numbers 817 and City Survey numbers 818 and 819 were deleted. Mr. G. N. Desai has also filed along with affidavit of Jivanbhai M. Patel, Annexure No. II which is copy of the letter dated 11th December 1987. In that letter, the Additional City Survey Superintendent had informed the Corporation that there is no City Survey Numbers 818 and 819 in Ward No. IX and that the area of City Survey numbers was amalgamated with City Survey No. 817 and that necessary mutations have been made. The affidavit filed by Jivanbhai M. Patel further states that, in the Field Book of direct tax maintained by the Corporation in respect of Ward No. IX, even in the year 1963-64, the City Survey numbers 818 and 819 have been shown to have been deleted having been amalgamated with City Survey number 817.
13. In the reply Mrs. K. A. Mehta, learned counsel for the petitioners submitted that she is not arguing that there are two procedures for acquiring the land and the procedure which is more drastic should be struck down, but she says that BPMC Act is self-contained Code and in an acquisition for roadline it must be in accordance with Ss. 210 to 216 of the Corporation Act since it is more advantageous to the petitioners. Mrs. K. A. Mehta has further stated that subsequent to the notice under S. 210 of the BPMC Act prescribing the roadline, the old prescription of the road margin under the Boroughs Act 1944 no more survives and as such the procedures under Ss. 210 to 216 have to be followed even in respect of the road margins alleged to have been prescribed as early as 1944. Finally, Mrs. Mehta, pressing into service the decision in the case of State of U. P. v. Pista Devi reported in AIR 1986 SC 2025 submitted that the area under the occupation of the petitioners cannot be taken away without giving alternative site for the petitioner herein. No doubt, Mr. G. N. Desai objected to this submission since it is neither pleaded in the petition nor it was pressed into service in the main argument advanced by Mrs. K. A. Mehta, learned counsel appearing for the petitioners.
14. As regards the first contention of Mrs. Mehta to the effect that S. 6 Notification is beyond the period of 3 years from the date of S. 4 Notification is stated to be rejected since the S. 6 Notification is within the period of 3 years as per the factual aspects present in this case. Rightly, Mrs. Mehta did not press this point. The 2nd, 3rd and 4th contentions raised by Mrs. Mehta can be taken up together and disposed of.
15. The Bombay Provincial Municipal Corporations Act, 1949 authorises the Commissioner to prescribe street-lines. Section 210(l) reads as follows :
16. The Commissioner may,
(a) prescribe a line on one or both sides of any public street :
Provided that every regular line of a public street operative under any law for the time being in force in any part of the City on the day immediately preceding the appointed day shall be deemed to be a street line for the purposes of this Act until a street line is prescribed by the Commissioner under this clause;
(b) from time to time, but subject in each case to the previous approval of the Standing Committee, prescribe a fresh line in substitution for any line so prescribed or for any part thereof :
Provided that such approval shall not be accorded unless, at least one month before the meeting of the Standing Committee at which the matter is decided, public notice of the proposal has been given by the Commissioner by advertisement in the local newspapers and special notice thereof, signed by the Commissioner, has also been put up in the street or part of the street for which such fresh line is proposed to be prescribed and until the Standing Committee has considered all objections to the said proposal made in writing and delivered at the office of the Municipal Secretary not less than three clear days before the day of such meeting.
Section 210(2) reads as follows :
"The line for the time being prescribed shall be called 'the regular line of the street."
17. Section 210(3) reads as follows:
"A register with plans attached shall be kept by the Commissioner showing all public streets in respect of which a regular line of the street has been prescribed and such register shall contain such particulars as to the Commissioner may appear to be necessary and shall be open to inspection by any person upon payment of such fee as may from time to time be prescribed by the Standing Committee."
18. Section 211 deals with the power of the Commissioner to set Lack the buildings to the regular line of street Section 212 deals with the additional power of the Commissioner to order setting back of the buildings to regular line of street. Section 213 deals with acquisition of open land or of land occupied by platform Etc., within regular line of streets. Section 214 deals with the acquisition of the remaining part of building and land after the portions within a regular line of street are acquired. Section 215 deals with the power of the Commissioner to set forward the buildings to the line of street. Section 216 deals with compensation to be paid and betterment charges to be levied, and reads as follows :
"216. (1) Compensation shall be paid by the Commissioner to the owner of any building or land required for a public street under S. 211, 212, 213 or 214 for any loss which such owner may sustain in consequence of his building or land being so acquired and for any expense incurred by such owner in consequence of the order made by the Commissioner:
Provided that-
(i) any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set-back to the regular line of the street shall be taken into consideration and allowed for in determining the determining the amount of such compensation;
(ii) if any such increase in value exceeds the amount of loss sustained or expenses incurred by the said owner, the Commissioner may recover from such owner half the amount of such excess as a betterment charge.
(2) If, in consequence of an order to set forward a building made by the Commissioner under S. 215, the owner of such building sustains any loss or damage, compensation shall be paid to him by the Commissioner for such loss or damage after taking into account any increase in value likely to accrue from the set forward.
(3) If the additional land which will be included in the premises of any person required or permitted under S. 215 to set forward a building belongs to the Corporation, the order or permission of the Commissioner to set forward the building shall be sufficient conveyance to the said owner of the said land; and the price to be paid to the Corporation by the said owner for such additional land and the other terms and conditions of the conveyance shall be set forth in the said order or permission.
(4) If, when the Commissioner requires a building to be set forward, the owner of the building is dissatisfied with the price fixed to be paid by the Corporation or any of the other terms or conditions of the conveyance, the Commissioner shall, upon the application of the said owner at any time within fifteen days after the said terms and conditions are communicated to him, refer the case for the determination of the Judge."
19. As far as the present case is concerned, the Corporation has prescribed the roadline as per the provisions under S. 210. The only objection, Mrs. Mehta puts forward is that in the notice for fixing up the street line under S. 210, Nondh numbers 818 and 819 are not given and as such these Nondh numbers cannot be acquired. No doubt, Mr. G. N. Desai, the learned counsel appearing for the Municipal Corporation submitted that the Nondh numbers 818 and 819 have been clubbed with Nondh number 817. We have in paragraphs supra elaborately extracted the affidavit filed by Jivanbhai M. Patel, Town Planner, Surat Municipal Corporation which makes it clear that Nondh numbers 818 and 819 have been clubbed with Nondh number 817. As such the notice which spelt out Nondh number 817 should be deemed to have included Nondh numbers 818 and 819 also. Hence we can. conclude that the procedure under S. 210 has been correctly followed in prescribing the street lines. It is the say of Mr. G. N. Desai, the learned counsel that the portion under acquisition through the land acquisition proceedings are the roadlines which were fixed by the Bombay Municipal Boroughs Act, 1944. The affidavit-in-reply filed by the Town Planner, one Mr. R. D. Desai on behalf of the Surat Municipal Corporation clearly states that the present acquisition is not in pursuance of the roadlines prescribed in the year 1979 but it is in pursuance of the roadlines prescribed in the year 1944. The advertisements given in the newspaper in the year 1979 in pursuance of the resolution passed by the Municipal Corporation are not at all relevant at this stage, since the present acquisition is in respect of the roadline fixed as early as 1944, under the Boroughs Act. It is the say of the Town Planner, in his reply-affidavit that the Municipality in pursuance of its resolution passed in the year 1944, prescribed the present roadlines which are under acquisition. The Corporation sent this proposal for acquisition to the State Government and in pursuance of the same, the State Government has issued Notifications under Ss. 4 and 6 of the Land Acquisition Act. Subsequent to this roadline fixed in 1944, the Surat Municipal Corporation which came into existence purporting to act under S. 210 of the Bombay Provincial Municipal Corporations Act, decided to widen the road and prescribed roadline since they found the traffic was heavy on the road. Hence the Corporation has passed resolution under S. 210 of the Bombay Provincial Municipal Corporations Act prescribing the roadline for further widening the road. In respect of this proposal, the Corporation, after considering the objections filed by the property owners, passed resolution through its Standing Committee of 23rd March 1980 to keep the roadline as per the resolution passed in the year 1944 by the then Municipality. Thus, from the facts revealed in the affidavit-in-reply, it is clear that the roadline under acquisition as at present was fixed by the Bombay Municipal, Boroughs Act as early as 1944 and that Act did not contain the provisions running from Ss. 210 to 216 of the Bombay Provincial Municipal Corporations Act. To acquire the properties for the roadline fixed in 1944, the Municipal Corporation, Surat has correctly invoked the pro-visions of the Land Acquisition Act. Even apart from this factual aspects of the case, we can consider as to whether the invoking of the Land Acquisition Act for the purpose of acquisition of the property for roadline without resorting to the provisions under the Bombay Provincial Municipal Corporations Act can be upheld. Mrs. Mehta, the learned counsel appearing for the petitioners spelt out mala fides on the part of the Municipal Corporation since according to her, it wanted to deny sufficient compensation to the petitioners herein by invoking the Land Acquisition Act. According to the learned counsel, if the acquisition is made as provided under Ss. 210 to 216 and the compensation is paid as per S. 216 the petitioners will be in a position to get compensation for the loss and other goodwill on the date of such acquisition, while under Land Acquisition Act, it will be on the date when the S. 4 Notification is issued. In this connection, we can usefully refer to S. 23 of the Land Acquisition Act. It reads as follows :
"23. Matters to be considered in determining compensation (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration Firstly, the market value of the land at the date of the publication of the notification under S. 4, sub-section (1);
Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;
Thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;
Fourthly, the damage (if any) sustained by the person interested, at the time of the Collectors taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
Fifthly, if, in consequence of the acquisition. of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under S. 6 and the time of the Collector's taking possession of the land.
"(1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per cent per annum on such market value for the period commencing on and from the date of the publication of the notification under S. 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier :
Explanation:- In computing the period referred to in this sub-section any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded."
(b) in sub-section (2), for the words "fifteen per centum", the words "thirty per centum" shall be sustituted.
(2) In addition to, the market-value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of the acquisition."
20. Section 28 of the Land Acquisition Act also deals with the provision enabling the Collector to pay interest on excess compensation. Section 28-A which has been newly added also gives certain relief for getting compensation for the person interested in the lands covered by the notification. The reading of S. 23 and also S. 28 of the Land Acquisition Act along with Ss. 210 to 216 of the BPMC A, the submission that if acquisition is made under the Land Acquisition Act, it will result in poor compensation to the party concerned while under S. 216 of the BPMC Act it will be more, cannot be appreciated. In this connection we can usefully refer the observations made by the Supreme Court in the case of M. Chhagganlal v. Greater Bombay Municipality reported in AIR 1974 SC 2009. In that case the Supreme Court had occasion to consider whether the special procedure set out in Chap. VA of the Municipal Act is substantially more drastic and prejudicial than the ordinary procedure of a civil suit. The Supreme Court observed that mere minor differences between the two procedures would not be enough to invoke the inhibition of the equality clause. The Supreme Court further held (at pp. 2039-40) :
"The equality clause would become the delight of legal casuistry and be shorn of its real purpose which is to provide hope of equal dispensation to the common man "the butcher, the baker and the candle-stick maker" - if we indulged in weaving gossamer webs out of this guarantee of equality or started meticulous hunt for minor differences 'in procedure. What the quality clause is intended to strike at are real and substantial disparities, substantive or processual and arbitrary or capricious actions of the executive and it would be contrary to the object and intendment of the equality clause to exalt delicate distinctions, shades of harshness and theoretical possibilities of prejudice into legislative inequality of executive discrimination. Our approach to Art. 14 must be informed by a sense of perspective and proportion based on robust understanding and rejection of over-refined distinctions. The whole dimension of protection against discrimination in the processual sphere relates to real and substantial disparities in procedures. What is necessary to attract the inhibition of Art. 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other and not mere superfine differences which in this imperfect world of fallible human instruments are bound to exist when two procedures are prescribed. We should avoid dogmatic and finical approach when handling life's flexible realities."
Continuing further the Supreme Court observed (para 39) :
"The two procedures would have to be compared objectively and dispassionately without any predilection or prejudice to determine whether one is really and substantially more drastic and prejudicial than the other."
Reading the Sections under the Land Acquisition Act which provide compensation and also the Section under the Bombay Provincial Municipal Corporations Act, if you do not go for meticulous hunting for minor differences in the award of compensation, it cannot be said that the compensation that will be awarded under the Land Acquisition Act will be glaringly lower than that will be awarded under the provisions of the BPMC Act. Thus, we do not see that there will be appreciable difference in awarding compensation either in following the procedure set up by the Land Acquisition Act or in following the procedure set up by the BPMC Act.
21. In respect of two procedures set up for evicting certain persons from municipal premises under S. 437-A of the 13PMC Act, the Supreme Court had occasion to consider in the case of Ahmedabad Municipality v. Ramanlal reported in AIR 1975 SC 1187 wherein the dispute was as to whether different procedures set up, one for occupants of municipal premises and another for occupants of non-municipal premises, is violative of Art. 14 of the Constitution. In this case the Supreme Court upheld the observation of the High Court to the effect that the discretion which is conferred OD the Municipal Commissioner in the matter of enforcement of liability falls equally on all within the specified class in S. 437-A(l), and, therefore, there is no discrimination. But the Supreme Court however held that the observation of the High Court to the effect that S. 437A in so far as it empowers the Municipal Commissioner to make an order of eviction in cases falling within S. 437-A(l)(b) viz., that any person in unauthorised occupation of any municipal premises is violative of Art. 14, as not correct. In that case the High Court held that such eviction of unauthorised occupant is left to the arbitrary and unguided discretion of the Municipal Commissioner to adopt the drastic and summary remedy provided under S. 437A(l) or to adopt the ordinary remedy of suit. This was repelled by the Supreme Court and observed :
"21. The majority decision of this Court in Maganlal Chhagganlal (P.) Ltd. v. Municipal Corporation of Greater Bombay, (1974) 2 SCC 402: AIR 1974 SC 2009 is that where the statute itself covers only a class of cases, the statute will not be bad on that ground. The feature that such cases are chosen by the statute to be tried under the special procedure laid down there will not affect the validity of the statute. The contention that the mere availability of two procedures will vitiate one of them i.e. the special procedure is not supported by reason or authority. In Maganlal Chhagganlal's case (supra) this Court held that the fact that the legislature considered that the ordinary procedure is inefficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. The correct law is now laid down in Maganlal Chhagganlal's case (supra) and the view of this Court in the Northern India Caterers' case, (1967) 3 SCR 399 AIR 1967 SC 1581 (supra) does not hold the field. In Maganlal Chhagganlal's case (supra) it has been held that a statute which deals with premises belonging to the Corporation and the Government and lays down a special speedy procedure in the matter of evicting unauthorised persons occupying them is a sufficient reason to support such special procedure. The policy and the purpose of the Act make it clear that the legislature intended to make the statute applicable to a special class and provide a speedy method of recovering possession of these properties.
22. On the ruling of this Court in Maganlal Chhagganlal's case, (1974) 2 SCC 402, : AIR 1974 SC 2009 (supra) the conclusion of the High Court that S. 437-A offends Art. 14 on the ground that there, is no clear guidance on the Municipal Commissioner to take proceedings is set aside. It may also be stated here that the respondents because of the decision of this Court in Maganlal Chhagganlal's case (supra) did not support the conclusion of the High Court on the infraction of Art. 14.
23. The conclusion of the High Court that the provision in S. 437-A(l) is unreasonable because the Municipal Commissioner is in substance a party to the dispute is unacceptable. The conferment of power on the Municipal Commissioner as an Administrative Officer to take proceedings for eviction cannot be struck down as unreasonable on the ground that lie is a Judge in his own cause. He is the highest officer of the Corporation. The Corporation acts through these officers. There is no personal interest of the Municipal Commissioner in evicting these persons. The Corporation represents public interest. The Municipal Commissioner acts in public duty in aid of public interest. The Municipal Commissioner will apply his mind to the facts and circumstances of a given case as to whether there should be an order for eviction. If the Municipal Commissioner will wrongly exercise his power the action will be corrected in appeal."
The above said principle laid down by the Supreme Court and which principle can be usefully adopted for the present case also clearly spells out that there cannot be any vice of discrimination in applying either the BPMC Act or the Land Acquisition Act in acquiring and awarding the compensation. Further, the power of invoking the Land Acquisition Act is not with the Municipal Corporation but with the Government. Hence, it cannot be said that the Municipal Corporation can arbitrarily invoke either Ss. 210 to 216 of the BPMC Act or the Land Acquisition Act.
22. Mrs. K. A. Mehta, learned counsel appearing for the petitioners, in order to substantiate her contention of mala fides read paragraph 9C of the special civil application No. 4387/86 and paragraph 12 of the special civil application No. 6718/87. Both are to the same effect. The learned counsel also read. the newspaper report taken from the paper called "Pratap". In nut-shell, it is stated that roadline has not been taken on both sides of the road in existence, but instead the roadline on one side alone is acquired depriving the lands in possession of the petitioners herein. It is further stated that the opposite side is not being taken due to the pressure and in order to oblige some interested persons. It is the further say of the learned counsel that the alignment of the road can be changed so that the lands of the petitioners may be dropped from acquisition. It is unnecessary for us to elaborate all the averments made in this paragraph since the burden is very heavy upon the petitioners to substantiate the mala fides on the part of the Government. The facts of this case clearly reveal that there was S. 4 Notification and in pursuance of that 5A enquiry was held. There is nothing placed on record to show that an objection was taken at the time of 5A enquiry. We find no allegation against the Government which has acquired the land under Land Acquisition Act. Which land to be acquired first and when etc. cannot be dictated by the party concerned, but it is for the authorities to discuss and decide according to the exigencies and the financial commitments. Only thing the Court can look into it is as to whether the portion acquired is for the purpose of expanding the road or not. If that necessity is established, the Court cannot go further and ask either the acquiring body or the Government to acquire every piece of the land either in that locality or in any other locality which is earmarked for roadlines.
23. As far as the present case is concerned, the mala fides alleged are that some of the roadlines marked have not been acquired and that it is due to the pressure of some interested persons. No particulars regarding the persons who are interested in making the Government not to acquire these lands are forthcoming. Such vague allegation of mala fides when especially the necessity for acquiring the land for road margin is there, cannot be appreciated.
24. Notice under, S. 6 of the Land Acquisition Act clearly states that the Government of Gujarat is satisfied after considering the report of the Special Land Acquisition Officer, Br. IV, Surat, under sub-section (2) of S. 5-A of the Land Acquisition Act to the effect that the said lands are needed to be acquired at the expense of Municipal Corporation, Surat for the purpose specified in column 4 of the schedule thereto. Column 4 of the schedule thereto clearly states that the land was sought to be acquired for road purposes by Surat Municipal Corporation, Surat. In this S. 6 notice the C.T.S. numbers from 817 to 823 are mentioned. Thus, it is clear that the Government was satisfied that the lands are to be acquired in the public interest for road purposes by the Surat Municipal Corporation.
25. Declaring the road margin and also acquiring the lands for the purpose provided in Ss. 210 to 216 of the BPMC Act cannot in any way override acquisition of lands through Land Acquisition proceedings. In an acquisition through Land Acquisition proceedings the only thing that we have to see is whether the acquisition is for a public purpose or not and as to whether sufficient opportunity has been given to the land owner to give his explanation. In the present case all these formalities have been satisfied and it is seen that the acquisition is for public purpose i.e. for expanding the road. Irrespective of any provision under the BPMC Act, a public authority as an acquiring body can invoke the provision of the Land Acquisition Act through the Government and it is for the Government to satisfy itself whether the acquisition is for Public purpose. If all these criteria are satisfied, we do not think any further objection can be sustained in such type of acquisition.
26. Further, in these cases the petitioners have come forward with a prayer to declare the S. 6 Notification as illegal and void in law and to direct the respondents herein not to take any proceedings under the provisions of the said Act based on such S. 6 Notification. The land acquisition proceedings have started as early as 1979. After the lapse of so many years and after submitting, the explanation for the 5A enquiry, the acquisition, is being challenged only in the year 1986. We have seen that the acquisition is for public purpose i.e. for expanding the road. Such an inordinate delay in coming to the Court to scuttle the proposed expansion of the road which is in the public interest cannot be countenanced and as such the petitioner has to fail even on the ground that there is an inordinate delay in coming to the Court to question such land acquisition proceedings.
27.Mrs. K. A. Mehta, learned counsel, has also stated that subsequent to the prescription of the new roadline under the present BPMC Act, the old roadline prescribed under the Boroughs Act is no more in existence and as such the provisions of the BPMC Act must be applied. The discussion we have made in paragraphs supra clearly answers this point and absolutely there is no prohibition or infirmity in invoking the provisions of the Land Acquisition Act for acquiring the land in question.
28. The learned counsel has also submitted that in the notice for marking the road margin the Nondh numbers 818 and 819 have not been given and as such those lands cannot be acquired. The Notification under Ss. 4 and 6, as we have seen, is for the purpose of acquiring these lands for expanding the road. Thus, there is a public purpose in invoking the provisions of the Land Acquisition Act and that there is no necessity to mark the roadline under the provisions of the BPMC Act as condition precedent for acquiring lands for roadlines. Hence we do not think the argument of Mrs. K. A. Mehta, that unless the road margin is prescribed the acquisition cannot be had, deserves consideration. In respect of these Nondh numbers, Mr. G. N. Desai, learned counsel for the Surat Municipal, Corporation stated that these Nondh numbers have been added to Nondh No. 817 and as such the mentioning of Nondh No. 817 in the notice given under S. 210 of the BPMC Act will include Nondh numbers 818 and 819 also.
29. Mrs. K. A. Mehta, learned counsel appearing for the petitioners, finally pleaded that the persons whose properties are being acquired should be provided with alternate accommodation. For this argument, Mr. G. N. Desai, learned counsel appearing for the Surat Municipal Corporation vehemently opposed stating that this was neither pleaded nor particulars given by the petitioners so as to meet the said argument. To substantiate her submission Mrs. Mehta cited the decision and observation made in the case of State of U.P. v. Pista Devi reported in AIR 1986 SC 2025. This decision deals with the acquisition of land in the city of Meerut where the State Government sought to acquire lands for planned development of urban area on which there were some buildings here and there. This acquisition of land is for the development of urban area of Meerut Urban Development Authority. The High Court in that case quashed the notification issued under S. 4(l) of the Act. The State Government took the matter by way of an appeal to the Supreme Court. The Supreme Court allowed the appeal by dismissing the writ petitions filed by the respondents. While dismissing the appeal, the Supreme Court, referring to the provisions in S. 21(2) of the Delhi Development Act (61 of 1957) observed (Para 10) :
"Although the said section is not in terms applicable to the present acquisition proceedings, we are of the view that the above provision in the Delhi Development Act contains a wholesome principle which should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the purposes of land development in urban areas."
30. There is no such analogous provision in the present Act we have discussed. Further, the present case is not a case where the authority concerned were acquiring large tract of land for the purpose of land development, in urban areas. This is a case of widening the road and for that purpose lands and property situated thereon are acquired by invoking the provisions of the Land Acquisition Act. Even the Supreme Court decision referred above does not mention that all the persons from whom lands are acquired for urban development, should be provided with a house site or shop site. But it only states that as far as practicable the authority concerned should provide the house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in question. We also recommend that as far as practicable and possible the Municipal Corporation will provide house site or shop site of reasonable size on reasonable terms to those persons whose- property has been acquired under the Land Acquisition Act. This is only a recommendation and not a direction.
31. With these observations both the special civil applications are dismissed without cost.
32. Mrs. Mehta, the learned counsel appearing for the petitioners in both these special civil applications, requests this Court to extend the injunction already granted for a period of 8 weeks in order to enable her clients to take up the matters to the Supreme Court. Inasmuch as the house property of the petitioners wilt be acquired, they may be given a chance for taking up the matters to the Supreme Court, by extending the injunction already granted by 8 more weeks. Hence, injunction already granted is extended by 8 more weeks from this date.
33. Application dismissed.