Gujarat High Court
Palitana Development Corpn. & vs Government Of Gujarat & 3 on 15 March, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, Z.K.Saiyed
C/SCA/16532/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16532 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI sd/-
and
HONOURABLE MR.JUSTICE Z.K.SAIYED sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to 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 ?
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PALITANA DEVELOPMENT CORPN. & 1....Petitioner(s)
Versus
GOVERNMENT OF GUJARAT & 3....Respondent(s)
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Appearance:
MR S N THAKKAR, ADVOCATE for the Petitioner(s) No. 1 - 2
MS JIRGA ZHAVERI, AGP for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 15/03/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) The petitioners have challenged notifications issued by the State authorities under Sections 4 and 6 of the Land Acquisition Act, 1894 and Page 1 of 18 HC-NIC Page 1 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT subsequent notice issued under Section 9 of the said Act with respect to their nonagricultural land situated in Palitana town.
2. Brief facts are as under:
3. Petitioner No.1 is a partnership firm registered under the provisions of the Indian Partnership Act, 1932. Petitioner No.2 is a partner of the firm. The petitionerfirm purchased land ad measuring 45225 square meters bearing survey No.58 of Palitana under registered saledeeds executed in the year 199091. The petitioner, thereafter, applied to the Collector for conversion of the use of the land from agricultural to nonagricultural use. The Collector granted such permission under order dated 12/09/1994 allowing commercial use of the land on various conditions. One of the conditions was that while carrying out the construction on the land, distance of 15 meters from the center of the road line would have to be kept open. The petitioner thereafter also presented layout plans for approval by the Collector. The Collector passed such layout plans. Later on, the Collector under order dated 12/01/1996 noted that the land is abutting on SongadhPalitana State Highway between kilometers 54 and 55 and therefore, the petitioner would leave a clear margin of 10 meters from the center of road line while carrying out the construction. In this order, the Collector noted that the permission for conversion of the land user was granted on the condition that the Page 2 of 18 HC-NIC Page 2 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT proposed construction on such land would leave a clear margin of 15 meters from the center of road line. However, a further opinion of the Executive Engineer, Road and Building Department, Bhavnagar was obtained, who opined that there would be no objection in granting permission by reducing such margin to 10 meters. It was on this basis that the Collector in his said order dated 12/01/1996 while passing the petitioner's revised plans ordered modification of the condition of not carrying out construction within 15 meters from the road line to 10 meters.
4. The case of the petitioner is that the petitioner had started construction as per the plans passed by the authorities and no portion of such construction was within a distance of 10 meters from the center of the road line, despite which one Shri Ravjibhai Odhabhai Vaghani, Deputy Engineer, Road and Building Department, Palitana issued a notice on 02/08/1997 suggesting that the petitioner's construction was not lawful. In order to protect such construction against demolition, the petitioner filed Regular Civil Suit No.599 of 1997 before the learned 6th Joint Civil Judge (SD), Bhavnagar, who on 18/08/2001 granted exparte injunction against demolition. Despite such injunction, a portion of the construction was demolished, due to which the petitioner filed contempt application Exhibit93 before the said Court. Said Shri Vaghani was unhappy about the petitioner approaching the Court of law and then filing a contempt application against him, on Page 3 of 18 HC-NIC Page 3 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT account of which, he changed the center line of the road bringing it closer to the petitioner's land bearing survey No.58. The petitioner, therefore, filed yet another Regular Civil Suit No.647 of 2001 before the learned Civil Judge, (S.D.) Bhavnagar praying inter alia that the petitioner is entitled to carry out construction on the land in question after leaving portion of 10 meters from the center line open in terms of the order of the Collector dated 12/01/1996.
5. On 19/06/2002, the Government issued notification under Section 4 of the Act, 1894 proposing to acquire a total of 1008.61 square meters of land out of the petitioner's land bearing survey No.58, which was by then subplotted into various plots. In this notification, it was declared that for fourlaning the SongadhPalitana road, these lands are required for public purpose for which this notification under Section 4 of the Act has been issued. Following details of the lands under proposed acquisition were given in the schedule to the said notification.
S C H E D U L E District: Bhavnagar Taluka: Palitana Village Palitana Survey No. Area of required land H. Are. Sq. Mtrs.
C.C. NO.6728/1 036968
R.S. NO.58
C.C. NO.6728/32 04/16/50
R.S. NO.58
C.C. NO.6728/60 015316
R.S. NO.58
C.C. NO.6728/73 006189
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R.S. NO.58
C.C. NO.6728/73 000340
R.S. NO.58
C.C. NO.6728/73 000203
R.S. NO.58
C.C. NO.6728/73 000120
R.S. NO.58
C.C. NO.6728/73 000075
R.S. NO.58 10,08/61
6. The public notice issued by the Collector, Palitana of this notification under Section 4 of the Act, 1894 invited the objections from persons interested, which could be lodged within 30 days from the date of the publication of the notice. The petitioner raised objections before the Deputy Collector and authorized Officer, Palitana and contended interalia that the petitioner has plotted out the lands and in some portions carried out the construction of the shops for sale. There is no proposal for fourlaning the state highway. The petitioner has been granted permission by the Collector on 12/01/1996 for carrying out the construction after leaving distance of 10 meters from the center of the road. The Palitana Nagar Palika had so far not undertaken any steps for acquiring the land for widening of the existing 20 meters road along the line of the petitioner's land survey No.58 where there are number of other constructed properties situated. The proposal for acquisition is exfacie malafide and initiated to cause injury to the petitioner.
7. From the record, it emerges that the Revenue Page 5 of 18 HC-NIC Page 5 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT Department, Government of Gujarat raised certain queries to the Deputy Collector, Palitana under communication dated 06/03/2003. One of the questions raised was how is it that by acquiring survey No.58 alone the requirement of converting the road into fourlane road gets satisfied. If besides this survey number, there is need to acquire any other land, the same may be clarified alongwith the map. The question was also raised regarding the availability of the funds with the acquiring body. These queries were clarified by the Executive Engineer, Road and Building Department, Bhavnagar under a letter dated 09/04/2003 to the Deputy Collector, Palitana with respect to the need of acquisition of other lands. He stated that yes, additional lands would be needed, but sought to clarify that other than the petitioner's lands, the rest is Government waste land bearing survey No.498. On the right hand side of the road, there are existing buildings, Gurukul and other religious constructions and therefore, acquisition is suggested only on the left hand side. These clarifications were conveyed by the Deputy Collector, Palitana to the Government under letter dated 14/04/2003 in which also it was projected that besides survey No.58, rest of the land on the left hand side of the road comprises of Government waste land bearing survey No.498. On the right hand side of the road, there are existing construction including Gurukul and religious structures and therefore acquisition is suggested on the other side of the road.
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8. Based on such clarifications, submissions were prepared on 17/07/2003 by the administrative staff of the Revenue Department pointing out that in view of such clarifications, notification under Section 6 of the Act, 1894 can be issued. This clarification would take care of the objections of the petitioner raised after publication of notification under Section 4 of the Act. It was stated that with the aid of the petitioner's land under acquisition and other Government lands, the authorities would undertake the task of road widening. These submissions were accepted and notification under Section 6 of the Act was issued on 24/07/2003.
9. At that stage, the petitioner filed this petition and sought interim protection which was granted by an order dated 28/11/2003 in terms of paragraph No.26(C) (i) and (ii) of the petition. Essentially, the authorities were prevented from carrying on any further acquisition proceedings of the land in question.
10. The parties have filed multiple affidavits. We may refer to relevant portion from such pleadings. In the petition itself, the petitioner has taken the grounds of malafide on part of the authorities in seeking to acquire the petitioner's land for the so called road widening. The case of the petitioner is that the Deputy Engineer, Palitana was unhappy about the petitioner approaching the Civil Court and thereafter filing contempt application for alleged Page 7 of 18 HC-NIC Page 7 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT breach of injunction granted against demolition of the construction and therefore, in the guise of road widening, the acquisition proceedings had been initiated.
11. In an affidavit dated 07/02/2004 filed by one Ramesh Merja, Deputy Collector, Palitana, it is stated that the lands in question were required for widening of the road from Palitana to Songadh. It is further stated that "it was decided by the authority to make the road four tracks between Songadh and Palitana. The acquisition first for the public purpose to facilitate the pilgrims visiting the secret place, Palitana".
12. In another affidavit dated 19/07/2004 titled as affidavitinsurrejoinder said Shri Ramesh Merja, Deputy Collector stated as under:
"1. At the outset, I state that I am filing this surrejoinder only with reference to the queries raised by the Hon'ble High Court on the last adjourned date 6.7.2004. The Hon'ble High Court has made query that why these respondents are not proposing to acquire Survey Nos.60, 68, 75, 78, 93, 98 and insisting upon acquisition of Survey No.58 in which land of petitionerCorporation are situated? In response to the said query, I humbly submit that Palitana being a sacred religious place entry in town starts from railway line which is apparent in the diagonal corner of Survey No.75 and it ends at Page 8 of 18 HC-NIC Page 8 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT the edge of Survey No.58. At present the proposal for acquisition is for widening the road and making it four track road only in between above referred area. Further area is not being taken into consideration because there is no proposal for the same. I further state that the proposal is not made on account of various constrains including burden on the State Exchequer and budgetary provision.
2. I further state that with reference to Survey No.60 sufficient land of 15 mtrs is available on the edge of said survey numbers and therefore no portion thereof is required to be acquired. The same is situation with reference to two small strips (not number) on the edge of Survey No.62 and triangular portion of 68 and 75, sufficient land of 15 mtrs. is available and therefore no portion of the said land is being acquired."
13. These averments made by the authorities were challenged by the petitioner in an affidavit dated 14/12/2010 in which it was contended that it is only the petitioner's land admeasuring 500 square yards in length which is sought to be acquired under the guise of converting the road into four track road. The authorities have not considered the requirement of acquiring other lands. The pointed query was raised by the revenue department. The petitioner pointed out that there are large number of existing constructions along the same line of the road as that of the land of the petitioner including plots situated in survey Page 9 of 18 HC-NIC Page 9 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT No.60, 62, 68 and 75 which are of private ownership. However, there is no proposal for acquiring any part of these lands. The petitioner also cited the instance of yet another land survey No.61 which was also of private ownership. The petitioner pointed out that adjacent to this land, there are lands bearing survey No.62 and 68 which were also of private ownership. None of these lands are under acquisition.
14. One Dhirajlal B. Dhami, Deputy Executive Engineer, R & B Sub DivisionPalitana has filed an affidavit dated 15/10/2013 in which he has pointed out that on the petitioner's land, there are mere walls and thus it cannot be stated that construction has been carried out. It falls within 15 meters of the center of the road line hence it is required for the public purpose for widening the road. He further stated in paragraph No.6 of the said affidavit as under:
"6. Annexed herewith and marked as AnnexureR 2 is the copy of sketch reflecting central line of the road, width of the road on both the sides of this central line. On one side of the road i.e. opposite side to the property in question, there are old buildings situated. If widening is carried out on this side, where the old buildings are situated, they will have to be demolished. On the other hand if widening of the road is carried out as proposed, it will affect least number of property as the constructions situated on this side is away at a distance more than 15 meters from central line. Hence, road widening Page 10 of 18 HC-NIC Page 10 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT at this side will have minimum affect on existing property. Thus, it will result in less financial burden and least possible disturbance to the existing properties."
15. Yet another affidavit came to be filed by the Deputy Collector on 02/08/2014 in which he clarified that not only the land of the petitioner, but further lands are also sought to be acquired for widening the road and after acquiring the same the road will be widened.
16. The Deputy Collector, Palitana alongwith his affidavit dated 09/04/2015 placed on record the Panchnama drawn on 27/03/2015 showing precise position of various lands around the land of the petitioner. This Panchnama was drawn pursuant to the order passed by the High Court on 13/03/2015.
17. This Panchnama would show that land bearing survey No.75 is on the left hand side of the Songadh Palitana road which is divided into seven subplots and has been granted nonagricultural use permission and is owned by various private individuals. The road near the railway line has width of 5.30 meters. From then the road has width of 9.50 meters. There is yet another plot survey No.61 after survey No.68 which is of the ownership of Pavitra Yatra Dham Vikas Board and is at a distance of 09 meters from the center of the road line. Survey No.62 is next in line which is owned by three individuals. Next is survey No.60 owned Page 11 of 18 HC-NIC Page 11 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT by Bhagirath Builders and is situated at a distance of 10 meters from the center of the road line. Then comes the petitioner's land survey No.58 which is divided into various subplots where also road width is shown to be 9.80 meters. Here also the distance from the center of the road is shown to be 9.80 meters. There is reference to other survey numbers along the line. It is not necessary to refer to all of them.
18. In addition to such materials on record, we have also perused the photographs produced by the authorities showing the site from different angles.
19. On the basis of such material on record, learned Counsel for the petitioner vehemently contended that the authorities have initiated acquisition proceedings wholly malafide and without any public purpose being served. He contended that only because the petitioner had initiated legal proceedings against the authorities, which included filing of contempt application, the Deputy Engineer was personally interested in ensuring that the petitioner is harmed by illegal acquisition of the petitioner's land. Counsel submitted that the said authorities have taken contradictory stands. No useful purpose would be served in acquiring only four plots in the name of road widening without acquiring any other land. Counsel submitted that the decision of the authorities therefore suffers from factual as well as legal malafides.
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20. On the other hand, learned Assistant Government Pleader, Ms.Jhaveri, opposed the petition contending that the petitioner has not joined the said Deputy Engineer as respondent by name, in absence of which, the allegation of personal malafide cannot be examined. The Government having considered the requirement of road widening issued notification under Section 4 of the Act, 1894. After considering objections raised by the petitioner, notification under Section 6 of the Act was also issued. To ease the traffic congestion, it is required that the road be widened for which purpose acquisition is being made. She pointed out that on the other side of the road, there are private dwelling houses and other constructions of religious institutions. Not to disturb such constructed properties, proposal was made to widen the road only on one side which required acquisition of the land of the petitioner on which no substantial construction was carried out and the rest of the land was Government kharaba land.
21. It can be seen that this litigation has checkered history. Petitioner having been granted permission to develop the land, the layout plans were also approved by the Collector. Initially, the condition of leaving a distance of 15 meters from the center of the road line was modified to 10 meters. When the authorities intended to demolish the units partially constructed by the petitioner, the petitioner approached the Civil Court. The petitioner alleged breach of injunction granted by the Civil Page 13 of 18 HC-NIC Page 13 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT Court by the Deputy Engineer.
22. We are not directly concerned with this controversy. Firstly, the civil proceedings are still pending. Secondly, the petitioner request in the present petition does not cover this issue. We have referred to these developments only with a view to point out the genesis of the petitioner's assertions of factual and legal malafides. Insofar as the acquisition proceedings are concerned, the authorities have taken contradictory stand from time to time. We may recall that the Deputy Collector in his affidavit dated 07/02/2004 had stated that the authorities have decided to convert the road between Songadh and Palitana into four track road. It was for this purpose, that the petitioner's lands in question were brought under acquisition. This rather fall claim of converting the land of entire Palitana Songadh Highway into fourlane road was later on substantially diluted. In the later affidavits, it is suggested that a portion of this road is sought to be widened. Firstly, the claim of widening the entire Palitana Songadh Highway was given up and secondly from converting the road into fourlane road, now the claim putforth is sought to widen the road. To what width and to what extent such road is sought to be widened has not clearly come on record. As suggested by the learned AGP, if we refer to a Government proposal dated 31/03/1999, copy of which is produced at page No.237 of the compilation, it refers to two different segments of road for widening. One is the Songadh Page 14 of 18 HC-NIC Page 14 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT Palitana State Highway between segments 32 kilometers to 34 kilometers and 54 to 56 kilometers and another is 800 meters length of road connecting Hasta Giri road. This proposal would thus suggest that a total of 02 kilometers between 54 to 56 kilometers of Songadh Palitana road was being widened, where we are informed the petitioner's lands are situated. To what extent, on one side or both sides road would be widened is not clear.
23. Be that as it may, the central question is how is it that the state authorities desire to widen the substantial portion of the existing road by acquiring private lands of eight subplots of one single owner. In other words, the question is how would such a road be widened without the aid of additional land of other owners whose lands are situated on the same road. This precisely is the query raised by the Revenue Department to the Road and Building Division under letter dated 06/03/2003. Out of multiple queries raised to the Deputy Collector, one of them was how is the requirement of land for road widening be satisfied by merely acquiring portion of survey No.58. If there is any other land required, the same may be indicated with a matching map. To this query, the Deputy Engineer conveyed to the Deputy Collector on 09/04/2003 that other than the petitioner's land the rest of the land comprises Government waste land of survey No.498. He added that on the other side of the road, there are existing constructions including those of Gurukul and religious Page 15 of 18 HC-NIC Page 15 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT institutions and therefore road widening is suggested only on one side of the road. This was conveyed by the Deputy Collector to the Government in his letter dated 14/04/2003. It would on basis of this clarification that the Government decided to reject the petitioner's objection in response to notification under Section 4 of the Act.
24. The clarification made by the Deputy Engineer and conveyed by Deputy Collector to the Government is factually unacceptable and illogical. While suggesting that on the side of the road where petitioner's land survey No.58 is situated, there is only Government kharaba land is totally incorrect and clearly falsified on the basis of the Panchnama drawn on 27/03/2015 under the orders of the Court. As recorded, this Panchnama clearly records large number of lands of private ownership which abutted on the same road. The boundaries of these lands are at a distance of 10 meters of the center of the road line. It may be that in no portion of these lands, there is any existing construction of any of the private owners. In that context, the suggestion of the authorities that widening the road on the left hand side would save demolition of large number of existing constructions on the right hand side, which included Gurukul and religious institutions was a perfectly legitimate point. Nevertheless, this begs the fundamental question as to from where the rest of the required land would come for widening the road. If a road of a length of nearly 02 kilometers is to be Page 16 of 18 HC-NIC Page 16 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT widened, surely there would be requirement of other private lands. As revealed from the Panchnama dated 27/03/2015, there are other private lands which would have to be utilized. Even, if these lands are open lands, they have to be acquired by the Government before any road widening activity can be carried out. In this context, the authorities completely failed in producing satisfactory material on record to convince us as to what prompted the Government to acquire isolated 08 subplots of the petitioner for the alleged purpose of road widening. If the road is widened only along these plots, it would be wholly unnecessary and illogical exercise. If the road is to be widened all across the section, the same required additional lands as was cautioned by the Government under letter dated 06/03/2003 written to the Deputy Collector, Palitana. The answer by the Deputy Collector might have convinced the Government, but it fails to satisfy us.
25. Had the authorities proposed acquisition of large number of other survey numbers along the same side of the road, which would as well be needed for widening the road, perhaps our inquiries would have been rather limited. However, the action of the Government in proposing acquisition of only 08 sub plots of the petitioner leaving rest untouched simply defies logic. The decision of the authorities is actuated by legal malafides. The decision of the Government is based on incorrect facts being presented or incorrect interpretation of the correct facts. Had Page 17 of 18 HC-NIC Page 17 of 18 Created On Tue Mar 22 00:05:49 IST 2016 C/SCA/16532/2003 JUDGMENT the case of the authorities been that on account of several reasons at the site there is a bottleneck leading to a traffic congestion requiring the expansion of the road in a short length, we would have certainly perused such facts, if so presented. This is not even the case of the authorities, and we therefore need not address such a possibility.
26. In the result, the petition is allowed. The notifications dated 19/06/2002 and 24/07/2003 issued under Sections 4 and 6 respectively and consequently notice dated 13/08/2003 issued under Section 9 of the Act, 1894 by the authorities are quashed.
Before closing, we may clarify that we do not propose to comment on the right of the petitioner to carry out the construction leaving open distance of 10 meters or 15 meters from the center of the road line. Such an issue would be decided by the authorities / Court as and when so raised. The petition is accordingly disposed of.
(AKIL KURESHI, J.) (Z.K.SAIYED, J.) sompura Page 18 of 18 HC-NIC Page 18 of 18 Created On Tue Mar 22 00:05:49 IST 2016