Gujarat High Court
Rabari Babarbhai Vastabhai vs State Of Gujarat on 16 March, 2022
Bench: Aravind Kumar, Ashutosh J. Shastri
C/SCA/3761/2022 ORDER DATED: 16/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3761 of 2022
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RABARI BABARBHAI VASTABHAI
Versus
STATE OF GUJARAT
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Appearance:
MR AV PRAJAPATI(672) for the Petitioner(s) No. 1,10,11,2,3,4,5,6,7,8,9
MR. KAMAL TRIVEDI, ADVOCATE GENERAL WITH
MR. VINEY VISHEN, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 16/03/2022
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR) [1] Heard Shri A. V. Prajapati, learned counsel appearing for the petitioners and Shri Kamal Trivedi, learned Advocate General appearing with Shri Viney Vishen, learned Assistant Government Pleader for the respondents State.
[2] The Directive Principles of State Policy, Part-IV of the Constitution, Article 49 of the constitution mandates thus: Page 1 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022
C/SCA/3761/2022 ORDER DATED: 16/03/2022 "49. Protection of monuments and places and objects of national importance - It shall be the obligation of the State to protect every monument or place or object of artistic or historic interests, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be."
[3] By incorporating Article 49 in the Directive Principles of State Policy, the framers of the Constitution made it obligatory for the State to protect every monument or place or object of artistic or historic interests, declared by or under law made by Parliament to be of national importance. The legislatures of various states including the State of Gujarat enacted separate legislation for protection and preservation of ancient monuments falling under seventh schedule, List II, Entry 12. The Gujarat Ancient Monuments and Archaeological Sites and Remains Act, 1965 is the enactment which is in force in the State of Gujarat. It would not be out of context to quote from the Udyoga Parva of Mahabharata 17th verse and 5th chapter of Vidura Neeti, which reads as under:
renounce interest of one person for the sake of the family, interest of family for the sake of village;
Page 2 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 interest of village for the sake of country and even the [kingdom of] earth for one's own sake. tyajet kulArthe puruSham grAmasyArthe kulam tyajet | grAmam janapadasyArthe AtmArthe pRithivIm tyajet ||"
[4] The sum and substance of the above is once own interest for the bigger good renunciation has to be made. The Hon'ble Apex Court in the case of K. Guruprasad Rao versus State of Karnataka and Others reported in (2013) 8 SCC 418 has held that:
"98. When seen in this light, the protection of ancient monuments has necessarily to be kept in mind while carrying out development activities. The need for ensuring protection and preservation of the ancient monuments for the benefit of future generations has to be balanced with the benefits which may accrue from mining and other development related activities. In our view, the recommendations and suggestions made by the Committee for creation of Core Zone and Buffer Zone appropriately create this balance. While mining activity is sure to create financial wealth for the leaseholders and also the State, the immense cultural and historic wealth, not to mention the wealth of information which the temple provides cannot be ignored and every effort has to be made to protect the temple.Page 3 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022
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102. We hope and trust that the Government of India will also appoint an expert committee/group to examine the impact of mining on the monuments declared as "protected monuments" under the 1958 Act and take necessary remedial measures."
[5] In the matter of Sarika versus Administrator, Shri Mahakaleshwar Mandir Committee, Ujjain (Madhya Pradesh) and Others reported (2018) 17 SCC 112, the Hon'ble Apex Court has held that:
"the State is duty-bound to spend the amount so that not only the archaeological, historical and ancient monuments are also preserved but sanctum sanctorum, as well as the deity are preserved otherwise no useful purpose would be served by spending so much amount on Simhastha / Kumbh Melas in case deity, is itself permitted to be deteriorated."
[6] Keeping this authoritative principles in mind when the facts on hand are examined, it would emerge from the pleadings as well as the arguments advanced by the learned advocates that petitioners are challenging the legality and validity of the Notification dated 31.07.2021 issued under Section 10 A of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation (Gujarat Amendment) Act, 2016 Page 4 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 enacted by the Legislature of the State inter alia providing for exemption of Chapter II and III of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as well as the subsequent Notification issued under Section 11 of the said Act and alternatively petitioners have sought for a direction to the authorities to acquire the abutting and adjacent land said to be lying vacant on the western side of the land proposed to be acquired for Archaeological Experimental Museum, instead of acquiring petitioners' land.
[7] For the purpose of convenience we have tabulated hereinbelow the dates and corresponding notifications / steps by respondent authorities:-
Serial Number Particulars Date
1 Section 10 A notification issued under Act, 31.07.2021
2013
2 Notification issued under Section 11 11.10.2021
3 Section 19 notification 17.02.2022
4 Notice issued to petitioners under Section 21 24.02.2022
(1) (2) (4) and (5)
[8] Under the impugned notification, the lands of the
petitioners situated at Village : Vadnagar, Taluka : Vadnagar, Page 5 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 District : Mehsana situated in Survey Nos. 14 to 18, 96 to 111, 128, 130, 131, 148, 156 to 158, 170, 182 and 15 admeasuring 2060.78 Sq. Mtr. is being acquired by the State for creating the buffer zone for the excavation place attached to the Vadnagar Museum.
[9] The sum and substance of the grievances of the petitioners are that:-
The said land is not required for the purpose for which it is sought to be acquired, inasmuch as adjacent and abutting vacant land though being available, same is not being acquired;
The lands belonging to the petitioners, which are being acquired are with the residential buildings wherein petitioners are living from hundreds of years; The project which has been propounded is not an infrastructure project so as to fall within the exempted category defined under Section 10 A;
Page 6 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 The compensation that is being determined and paid under Section 26(1) (a) is based on jantri value existing as on 2011 and as such the compensation that is being paid to the petitioners is farce;
[10] Shri A. V. Prajapati, learned counsel appearing for the petitioners has reiterated the above said grounds urged in the petition and has prayed for Special Civil Application being allowed.
[11] The Learned Advocate General who has appeared on behalf of the State has sought to justify the acquisition of the lands contending inter alia that project under which the land is sought to be acquired is not only of national importance, but also of international importance, in as much as the excavation in the adjacent and abutting lands done by Archaeological Survey of India hitherto has yielded several antiquites, artefacts being unearthed and states that around 45,000 objects which includes stone, metal, terracotta, shell, gold and unidentified objects including relics have been unearthed and as such a Museum is being established for which the buffer zone is required and lands situated are adjacent to the area where excavation is going on Page 7 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 and even otherwise, the said lands which are belonging to the petitioners are being used as a buffer zone for the present and at later stage for establishing Museum. Hence, he would contend that said activity would fall within the definition of "infrastructure project" as defined under Section 10 A read with section 2 (1) (b) and section 3(o) of the Act. Hence, he contends that the project is exempted from the applicability of Chapter II and Chapter III of Land Acquisition Act, 2013. Hence, he has prayed for dismissal of the petition.
[12] Having heard the learned advocates appearing for the parties and on perusal of the records, we notice that there is no dispute to the fact that the lands belonging to the petitioners or being acquired under the impugned notification. Section 10 A, insofar as its applicability to the State of Gujarat is concerned, reads thus:
"10A. Power of State Government to exempt certain projects.- The State Government may, in the public interest, by notification in the Official Gazette, exempt any of the following projects from the application of the provisions of Chapter II and Chapter III of this Act, namely:-Page 8 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022
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(a) such, projects vital to national security or defence of India and every part thereof, including preparation for defence or defence production,
(b) rural infrastructure including electrification;
(c) affordable housing and housing for the poor people;
(d) industrial corridors set up by the State Government and its undertakings (in which ease the land shall be. acquired up to one kilometer on both sides of designated railway line or roads for such industrial corridor); and
(e) infrastructure projects including projects under public-private partnership where the ownership of land continues to vest with the Government:
Provided that the State Government shall, before the issue of notification, ensure the extent of land for the proposed acquisition keeping in view the bare minimum land required for such project".
[13] Clause (a) to (e) of Section 10 A empowers the State Government in the public interest to exempt such of those projects from the application of provisions of Chapter II and Chapter III of the Land Acquisition Act, 2013 by issuance of Page 9 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 notification in the Official Gazette. Shri A. V. Prajapati, learned counsel appearing for the petitioners has made a valiant attempt to contend that the project in question would not fall within any of the clauses defined under Clause (a) to Clause (e) of Section 10 A. However, the learned Advocate General has relied upon Clause (e) to buttress his arguments and to contend that land proposed to be acquired is for a project which would fall within the definition of "infrastructure project". The term or the expression "infrastructure project" is defined in Section 3(o) of 2013 Act and it reads thus:
" infrastructure project" shall include any one or more of the items specified in the clause (b) of sub-section (1) or section 2;"
[14] Thus, Clause (b) of sub-section (1) of Section 2 of the 2013 Act requires to be noticed and it reads thus:
"2 . Application of Act.- (1) The provisions of this Act relating to land acquisition, compensation, rehabilitation and resettlement, shall apply, when the appropriate Government acquires land for its own use, hold and control, including for Public Sector Undertakings and for public purpose, and shall include the following purposes, namely:-
(a) xxx
(b) for infrastructure projects, which includes the
following, namely:-
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(i) xxx
(ii) xxx
(iii) xxx
(iv) xxx
(v) xxx
(vi) project for sports, health care, tourism,
transportation or space programme;"
[15] The learned Advocate General has drawn our attention to the expression "tourism" occurring in Section 2 (1) (b) (vi) to contend that subject project is for the purpose of promotion of tourism. Though, Shri A. V. Prajapati, learned counsel has sought to contend that it cannot be construed as a project of public interest or the project falling within the four-corners of tourism, the said argument cannot be accepted, in as much as the notification issued under Section 10 A (Annexure- A) itself would disclose that the lands scheduled therein below is necessary for formation of place for excavation and for creation of a buffer zone in the public interest concerned with the establishment of a Museum in Vadnagar. The said notification would also disclose the lands of petitioners are being acquired for the purposes of creating a buffer zone for the purposes of Museum which is being established as an archaeological importance. Hence, it cannot Page 11 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 be gainsaid by the petitioners that proposed project is not of public importance or the Museum being established is not for the tourism purposes. Hence, we are of the considered view contention raised by the learned counsel for the petitioners deserves to be rejected and accordingly, it stands rejected. [16] At this juncture, we deem it proper to notice the authoritative principles of the Hon'ble Apex Court, in the case of Sayyed Ratanbhai Sayeed and others versus Shirdi Nagar Panchayat and another reported in (2016) 4 SCC 631 whereunder the Hon'ble Apex Court after applying the maxim Salus Populi Supreme Lex which connotes that health, safety and welfare of the public is the supreme in law, has held as follows:-
"58. The emerging situation is one where private interest is pitted against public interest. The notion of public interest synonymises collective welfare of the people and public institutions and is generally informed with the dictates of public trust doctrine - res communious i.e. by everyone in common. Perceptionally health, law and order, peace, security and a clean environment are some of the areas of public and collective good where private rights being in conflict therewith has to take a back seat. In the words of Cicero "the good of the people in the chief law".Page 12 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022
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59. The latin maxim "Salus Populi Est Suprema Lex"
connotes that health, safety and welfare of the public is the supreme in law. Herbert Broom, in his celebrated publication, "A Selection of Legal Maxims" has elaborated the essence thereof as hereunder:
"This phrase is based on the implied agreement of every member of the society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good."
The demand of public interest, in the facts of the instant case, thus deserve precedence.
60. A Constitution Bench of this Court in K.T. Plantation Private Limited and Another vs. State of Karnataka (2011) 9 SCC 1 in the context, amongst others, of the right to compensation under Article 300A of the Constitution of India did observe hereunder in paragraph 134:
"134. Hugo Grotius is credited with the invention of the term "eminent domain" (jus or dominium eminens) which implies that public rights always overlap with private rights to property, and in the case of public utility, public rights take precedence. Grotius sets two conditions on the exercise of the power of eminent domain: the first requisite is public advantage and then compensation from the public funds be made, if possible, to the one who has lost his right. Application of the above principle varies from countries to countries. German, American and Page 13 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 Australian Constitutions bar uncompensated takings. Canada's Constitution, however, does not contain the equivalent of the taking clause, and eminent domain is solely a matter of statute law. The same is the situation in the United Kingdom which does not have a written constitution as also now in India after the Forty-fourth Constitution Amendment."
(emphasis supplied) It was propounded that deprivation of property within the meaning of Article 300A, generally speaking, must take place for public purpose or public interest. The concept of eminent domain, which applies when a person is deprived of his property postulates, that the purpose must be primarily public and not private interest, being merely incidentally beneficial to the public. That the concept of public purpose had been given a fairly expansive meaning and that it ought to be a condition precedent for invoking Article 300A, was emphasized. It was held that for deprivation of a person of his property under Article 300A, requirement of public purpose is a precondition, but no compensation or nil compensation or its illusiveness has to be justified by the State on judicially justiciable standards. That property rights at times are compared to right to life which determine access to the basic means of sustenance and considered as imperative to the meaningful exercise of other rights guaranteed under Article 21 was noted. It was concluded that public purpose is an inviolable, prerequisite for deprivation of a person of his property under Article 300A and that the right to claim compensation is inbuilt in that article and when a person is deprived of his property, the State has to justify both the grounds which may depend on the scheme and object of the statute, legislative policy and other related factors."
Page 14 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 [17] It has been held that deprivation of a person of his property under Article 300A of the Constitution of India, requirement of public purpose is a precondition, but no compensation or nil compensation or its illusiveness has to be justified by the State on judicially justiciable standards. On this premises, Mr. Prajapati, learned counsel for petitioners though has raised a contention about the valuation of the property undertaken by the jurisdictional Collector, as contemplated under sub-section (1) of Section 26 is a farce determination, we are not impressed or inclined to accept the said arguments for reasons more than one. Firstly, Section 26 itself provides or enables the authority to determine the market value of the property as contemplated thereunder, namely, the value of the land proposed to be acquired can be determined as indicated in clauses (a) to (c) of the sub-section (1) of Section 26. Secondly, on the basis of self assertions and hypothesis the argument cannot be accepted, that too when there is lack of material to substantiate said claim. The petitioners who may lose the land, on account of the acquisition proceedings that is being undertaken, would be at liberty to urge before the Collector as to what would be the Page 15 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 market value of the property and necessarily the statutory authority would be required to act within the four-corners of the statutory provision, namely, Section 26 of the 2013 Act and we have no reason to disbelieve the said steps would not be undertaken by the said authority while determining the compensation payable and as such the contentions raised by the petitioners in that regard cannot be accepted and it stands rejeacted. Even otherwise under Section 64 of the 2013 Act petitioners would have further remedy to redress their grievance for payment of compensation as per the market value as prescribed under Section 26 of the Act, 2013. [18] For the cumulative reasons aforestated, we are of the considered view that contentions raised by the petitioners are devoid of merits and accordingly, petition stands dismissed.
(ARAVIND KUMAR, C.J.) (ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR Page 16 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022 C/SCA/3761/2022 ORDER DATED: 16/03/2022 Page 17 of 17 Downloaded on : Sat Dec 24 12:59:45 IST 2022