Gujarat High Court
Dariapur Patel Co-Op. Housing Society vs State Of Gujarat And Ors. on 18 August, 1988
Equivalent citations: (1988)2GLR1460
JUDGMENT P.R. Gokulakrishnan, C.J.
1. This Special Civil Application is for issue of a writ of mandamus or any other appropriate writ order or direction quashing and setting aside Order No. JAM/2087/258/Dha dated 28-4-1988, passed by respondent No. 1 vide Annexure 'B' thereto in respect of land bearing Final Plot No. 32 of Town Planning Scheme No. 3 of Ahmedabad.
2. Rule. Mr. M.I. Hava, learned Counsel, waives service of rule on behalf of the 1st respondent. Mr. G.N. Desai, learned Counsel, with Mr. Rakesh Gupta, learned Counsel, waives service of rule on behalf of respondent No. 3. Respondents Nos. 4, 5, 6 and 7 are children of respondent No. 3. The matter was taken up for final hearing.
3. The short facts of this case for the purpose of disposal of this Special Civil Application are that, the petitioner is a Co-operative Housing Society. As an acquiring body, it proposed to the Government to acquire the suit land, which is Final Plot No. 32 of the Town Planning Scheme No. 3, admeasuring 3787 Sq. yards, in Ahmedabad. On 25-5-1964, the Government published Section 4 Notification. On 11-3-1965, Section 6 Notification was published. In 1965 itself, the petitioner-Society deposited a sum of Rs. 39,195/- as part of the compensation to be paid for the land sought to be acquired.
4. Respondents Nos. 2 to 7 herein challenged the acquisition proceedings by filing Special Civil Application No. 601 of 1965, alleging that the same is not for public purpose. By the judgment dated 12-12-1969, our High Court allowed the petition, holding that the acquisition is not for public.
5. Against the judgment of our High Court, the State Government took the matter by way of an appeal to the Supreme Court of India. The Supreme Court, in Civil Appeal No. 2105 of 1970, which is against Special Civil Application No. 601 of 1965, held that the proposed acquisition is for public purpose. The said judgment is dated 4-3-1987. At the High Court (sic in the Supreme Court) itself i.e. in Civil Appeal No. 2105 of 1970, the petitioner herein got itself impleaded. The Supreme Court, after setting aside the judgment of our High Court, remanded that matter to the High Court to decide on merits. As on date, Special Civil Application No. 601 of 1965 is pending on the file of this Court.
6. The State Government, acting under Section 48 of the Land Acquisition Act, passed an order dropping the proceedings under Section 48(2) of the Act. Order passed by the State Government dropping the land acquisition proceedings under Section 48(2) is Annexure 'B' to the Special Civil Application and the same is dated 28-4-1988. To complete the narration of the facts, respondents Nos. 2, 3 and 4 herein have sold the land in question by two different sale deeds dated 6-10-1987 to Shanker Apartment Association and Usmanpura Shiv Apartment Association, respectively.
7. The petitioner, who is the acquiring body, being aggrieved by the dropping of the land acquisition proceedings, has come forward with the present Special Civil Application. Mr. Arvind J. Patel, the learned Counsel appearing for the petitioner, contended that the order passed is in violation of the principles of natural justice and, therefore, the order at Annexure 'B' should be quashed. It is further contended by Mr. Patel that the dropping of the proceedings is on facts, which are not in existence, and such an arbitrary order dropping the acquisition proceedings should be quashed. Let us first consider the argument of Mr. Patel to the effect that the grounds, on which the acquisition proceedings were dropped, are all non-existing grounds.
8. The petitioner in this petition has alleged that the owners of the land have illegally influenced respondent No. 1 and made it to drop the acquisition proceedings in spite of the solemn undertaking as far back as in the year 1958 to acquire the said land. There is a further averment to the effect that the Government was influenced by the owners of the land for the reasons best known to them and the exercise of power under Section 48 is wholly mala fide and absolutely arbitrary. Further, such arbitrary exercise of power offends Article 14 of the Constitution.
9. To these averments, the State of Gujarat, through Mr. J.C. Barot, Under Secretary, Revenue Department, filed the affidavit-in-reply. He has specifically averred that the decision under Section 48 of the Land Acquisition Act to withdraw the land in question, being Final Plot No. 32, admeasuring 3136 Sq. mts., was taken by the State Government after making complete enquiry and giving full and adequate opportunity to the petitioner. He has also averred that the petitioner has suppressed material facts and has not adverted to the various enquiries made by the Government and the opportunity afforded to the petitioner to represent its case before the action was taken under Section 48 of the Land Acquisition Act. Mr. Barot, Under Secretary, Revenue Department, after adverting to various correspondence that transpired between the petitioner-society and the Government, submitted that after considering the details, it was noticed that originally when the acquisition proceedings were started on 15-6-1957, the Society had 51 members and thereafter during the pendency of the acquisition proceedings, out of these 51 members, 27 members had resigned or had left the Society and the Society had inducted 35 new members. It has been further averred in the affidavit-in-reply that the Society had built 47 houses and while allotting the said houses, the Society had allotted only 18 houses to the original members and for the reasons best known to the Society, it did not allot houses to the remaining original members, but allotted remaining houses by enrolling new members. Thus, according to Mr. Barot, the State Government, after taking into consideration all the relevant materials and affording opportunity to the petitioner to give details regarding the allotment of houses, and its members, took action for dropping the land acquisition proceedings. The Memo, dropping the acquisition proceedings, reads as follows:
xxx xxx xxx Memo
As per the direction in connection with letter No. LAQ 1523 dated 9-1-1987 of the Additional Special Land Acquisition Officer, Second Floor, Mangal Girdhar Bungalow, Lal Darwaja, Ahmedabad, it is to be informed that the following land which was notified for acquisition under Notification No AM-3698/M/LAH/1560/ 130474/K dated 11-3-1965 issued by the State of Gujarat, the Government has hereby granted permission to release the said land from acquisition under Section 48(1) of the Land Acquisition Act, 1894.
________________________________________________________________________________ No. and date of District Taluka Village Sr. No. Area Notification under Section 6.
________________________________________________________________________________ No. AM. 3697- Ahmedabad City Usmanpura F.P. A. G. M-LAH-1560/ Ellisbridge 32 Sq. yds .130474-K Town Planning 0-31-36 Date : Scheme No. 3-
11-3-1965 Usmanpura Section _________________________________________________________________________________ The Special Land Acquisition Officer, Ahmedabad, is hereby requested to inform about this to the land-owners.
10. In this connection, we can also usefully refer to the letter dated 19-6-1986, written by the Additional Special Land Acquisition Officer to the Society. In this letter, various queries were raised with direction to the petitioner to give details of the same. As early as 19-6-1986 itself, the petitioner was put on a notice by this letter as to whether the Society will have any other land for constructing houses for its members, if Plot No. 32 is released from land acquisition. It is unnecessary for us to refer all the queries putforth by the Government in this letter dated 19-6-1986, except stating that the details were called for by the Government regarding the activities of the Society. In the next letter dated 18-3-1987, written by the Additional Special Land Acquisition Officer, Ahmedabad, to the Society, there is a specific direction requisting the petitioner to be present without fail at 12.00 noon on 20-3-1987 in order to obtain reply from him. There is also a direction in this letter to the effect that the petitioner must submit his reply in writing. In order to appreciate as to how the Government was considering in detail all the relevant facts before it dropped the land acquisition proceedings under Section 48 of the Land Acquisition Act, we can usefully refer the whole letter dated 18-3-1987, which reads as under:
xxx xxx xxx Sir,
With reference to your letters dated 19-5-1986 and 27-6-1986 on the above subject, you have informed that when the proposal for land acquisition was made, Dariyapur Patel Co-op. Housing Society had fifty one members. However, ultimately there have remained only 17 original members out of 59 members of the society and out of them after allotting houses to them in Part I and Part II of the Society there remain only 6 such members who are yet to be allotted houses. Until today on the other hand all together in the aggregate 47 members have been allotted houses. It means that if the Society had taken proper care, 6 members out of the original members would have been allotted plots. But the Society failed to take proper care thereto Under these circumstances, there remains no more land to be acquired for the Society. This is the opinion of the Government and hence this acquisition is required to be withdrawn. Accordingly your reply being necessary, you are requested to present yourself without fail at 12.00 noon on 20-3-1987 so that your reply may be obtained. It is requested that you may submit your reply in writing.
Since the Government has directed in this regard and that your reply is required to be submitted before the Government till 27-3-1987, it is specially requested that there may not be any delay in submitting your reply.
xxx xxx xxx The Secretary of the petitioner-Society, in his affidavit-in-rejoinder, reiterated the arbitrary action of the Government, alleging mala fides on the part of the Government and stating that the acquisition proceedings were dropped due to the tremendous influence of the owners of the land subsequent purchasers of the land from the owners. In this affidavit-in-rejoinder, it has been specifically mentioned that only 10 members of the Society are yet to be provided with houses. In this connection, the Surveyors submitted a report, which is Annexure 'C to the affidavit-in-rejoinder. In this report, we find that many of the persons among the 10 mentioned by the Society, either possess houses themselves or by their close relations or reside outside Ahmedabad. To have the benefit of the Society, which operates within the City of Ahmedabad and to get the plots allotted, one must be residing within the Ahmedabad City, and he should not have a house of his own, either by himself or through his close relations. If much of those persons, who do not satisfy these requirements, are eschewed from the report, the balance left will be very negligible. In this affidavit-in-rejoinder, there is a specific statement to the effect that the petitioner-Society has constructed, in all, 48 houses. The original membership, as per the record, is 51 and subsequently, it is stated that the membership became 59. Whatever it may be, the balance of the members left for the allotment of the houses are very negligible and that will not in any way spell out public purpose for acquiring the land in question also. Taking all these aspects into consideration and considering the explanations given by the petitioner-Society, the Government thought it fit to drop the acquisition proceedings in respect of this land since it thought there is no public purpose as such to be served by acquiring these lands. There is no doubt, an averment to the effect that the dropping of acquisition proceedings is mainly based on the report of the Land Acquisition Officer. It is stated that such a report was not given to the petitioner herein. The Government, after taking into consideration various explanations offered by the petitioner and looking into the necessity of the acquisition by referring to the report of the Land Acquisition Officer, dropped the acquisition proceedings. Such an act of the Government cannot spell out any mala fides on the part of the Government and it cannot also be said that the dropping of the proceedings is without reference to the petitioner-Society.
11. Thus, it is seen from the facts of the case that the Government, after proper application of its mind and also affording an opportunity to the petitioner-Society to represent its case and after considering various letters, thought that the land acquisition proceedings have to be dropped under Section 48 of the Land Acquisition Act.
12. Even apart from the factual aspect of the case, the Special Civil Application deserves to be dismissed since the action of the Government to drop the proceedings under Section 48 cannot be questioned except claiming damages under Section 48(2) of the Land Acquisition Act.
13. Section 48 of the Land Acquisition Act, 1894, reads as follows:
48. Completion of acquisition not compulsory, but compensation to be awarded when not completed:
(1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.
Reading the Section as it is, it is clear that it is for the Government, as the dominant owner, to decide as to whether a particular land has to be acquired for public purpose and also it is for the Government to decide the dropping of the same. The Government's decision to drop land acquisition proceedings, before the possession of the land has been taken, is absolute in nature and we cannot sit over the decision of the Government to find out as to whether such dropping of the proceedings before acquisition of the land is made, is reasonable or not. In the decision in the case of the Special Land Acquisition Officer, Bombay v. Godrej and Boyce , the Supreme Court had occasion to consider Section 48 of the Land Acquisition Act. In that case, it was contended by the respondents before the High Court that the State Government had acted mala fide in invoking the power of withdrawal permitted by Section 48 of the Land Acquisition Act. In that case, there was a long delay of 20 years in taking the step to withdraw the land acquisition proceedings. On these circumstances, it was contended that such withdrawal from Land Acquisition proceedings spelt out mala fide intention on the part of the Government. In that case, a grievance was also made that no show cause notice was given to the respondent-Company before the withdrawal order was passed. The respondent-Company therein was an acquiring body. In those circumstances, the Supreme Court held that Section 16 of the Act makes it clear beyond doubt that the title to the land vests in the Government only when possession is taken by the Government. Till that point of time, the land continues to be with the original owner and he is free to deal with the land in any manner he likes. The Supreme Court further held that Section 48 gives liberty to the State Government to withdraw from the acquisition at any stage before possession is taken. By such withdrawal, no irreparable prejudice is caused to the owner of the land, and if at all he has suffered any damage in consequence of the acquisition proceedings or incurred costs in relation thereto, he will be compensated therefore under Section 48(2) of the Land Acquisition Act. Proceeding further, the Supreme Court observed:
The High Court has taken the view that a decision of withdrawal from acquisition most be backed by reasons and cannot be arbitrary or whimsical. We may observe that having regard to the scheme of the Act as discussed above, it is difficult to see why the State Government should at all be compelled to give any cogent reasons for a decision not to go ahead with its proposal to acquire a piece of land. It is well settled in the field of specific performance of contracts that no person will be compelled to acquire a piece of land as any breach of a contract to purchase it can always be compensated for by damages. That is also the principle of Section 48(2).
This observation of the Supreme Court set at naught the contentions raised by the learned Counsel for the petitioner herein. In paragraphs supra, we have also discussed the various factual aspects of the case and found that the decision has been taken after the Government having applied its mind. The proposition of law enunciated by the Supreme Court clearly spelt out that it is not necessary for the Government to give cogent reason before it dropped the acquisition proceedings under Section 48 and that the aggrieved party has always the remedy to pray for damages under Section 48(2) of the Act. Mr. Patel, the learned Counsel appearing for the petitioner, also cited several decisions to press his contention that the principles of natural justice have not been followed in this case before dropping the acquisition proceedings. Mr. Patel also stated that the acquiring body is an interested person. These decisions, in our opinion, need not be adverted to since the statutory provisions in the Land Acquisition Act clearly vests the power with the Government, who in the dominant owner to drop the acquisition proceedings and the decision taken by it cannot be questioned. There is no vested right or any legal right for the acquiring body or for the owner of the land to compel the Government to acquire certain land under the land acquisition proceedings. In the framework of Section 48 of the Land Acquisition Act, 1894, we do not think there is any substance in the argument of Mr. Patel that the principles of natural justice have not been followed in this case. As per the decision of the Supreme Court in the case of Special Land Acquisition Officer, Bombay v. Godrej and Boyce , which we have referred above, there is no necessity to hear the owner of the land when the acquisition proceedings are being dropped. A fortiori, if that be the case, the acquiring body cannot insist upon any hearing before the proceedings are dropped. Still, however, the Government has, as stated above, by its notice, called upon the acquiring body to be present and represent the case, by its letter dated 18-3-1987. In the decision in the case of Santosh Kumar and Ors. v. Central Warehousing Corporation and Anr. , the Supreme Court had an occasion to consider the right of the acquiring body to agitate the matter in Land Acquisition proceedings. Referring to the decision in the case of The Municipal Corpn. of the City of Ahmedabad v. C.S. Patel , the Supreme Court observed:
7. On the other hand, the decision of this Court in The Municipal Corpn. of the City of Ahmedabad v. Chandulal Shamaldas Patel appears to run along the same lines as that indicated by us. In that case certain lands belonging to the first respondent were notified for acquisition by the Government of Bombay 'for school and neighbourhood work'. The first respondent challenged the notification for acquisition by filing a writ petition in the High Court of Gujarat which was allowed. The Municipal Corporation of Ahmedabad perferred an appeal to the Supreme Court. A preliminary objection was raised regarding the maintainability of the appeal by the Municipal Corporation and the objection was sought to be met on the plea that the acquisition was for the use of the Municipal Corporation. The Court upheld the preliminary objection observing: 'The property, it is true, was notified for acquisition by the State Government for the use of the Municipal Corporation after it has acquired by the Government but that, in our judgment, did not confer any interest in the Municipal Corporation so as to enable it to file an appeal against the order of the High Court allowing the petition'. We are, therefore, firmly of the view that the High Court was wrong in entertaining writ petitions challenging awards made by the Collector under the Land Acquisition Act and claiming that the amount awarded was excessive. The appeals are allowed with costs and the writ petitions filed in the High Court are dismissed.
14. Thus, from the foregoing discussions made by us, the dropping of me land acquisition proceedings by the Government under Section 48 cannot be the subject matter in a proceeding under Article. 226 of the Constitution. Such dropping of the proceedings by the Government cannot be questioned since the party has remedy to claim damages under Section 48(2) of the Land Acquisition Act. As far as the acquiring body is concerned, it has absolutely no right to question the land acquisition proceedings as held in the decision in the case of Santosh Kumar and Ors. v. Central Warehousing Corporation and Anr. .
15. For the foregoing reasons, we do not find any merits in any of the contentions raised by Mr. Patel and accordingly, this Special Civil Application is dismissed. Rule is discharged. In the circumstances of the case, there will be no order as to costs.
16. Mr. A.J. Patel, the learned Counsel appearing for the petitioner, makes an oral application after the pronouncement of the judgment for the purpose of getting a certificate in order to file an appeal in the Supreme Court. In this judgment, we have considered both the factual aspect of the case and also the legal position and have dismissed the Special Civil Application following the decisions of the Supreme Court. We do not think that any substantial question of law either as to the interpretation of the Constitution of India or of general importance arises in this case for us to grant the certificate as prayed for. Hence, the request for grant of certificate is refused.
17. Mr. A.J. Patel, the learned Counsel appearing for the petitioner, also prays for continuance of the interim relief already granted for a period of three months for the purpose of taking the matter in Supreme Court. Taking into consideration the facts and circumstances of the case, the interim relief granted is extended by six weeks from this date.