PATEL MANGALBHAI NATHABHAI Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
PATEL MAGANBHAI NATHABHAI
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P.N.BHAGWATI, J.M.SHELAT -
(1.) This petition is for a mandamus or any other appropriate writ for quashing the notifications issued under secs. 4 and 6 of the Land Acquisition Act I of 1894 and for restraining the respondents from enforcing them or taking any further proceedings thereunder for declaring that the amendments inserted by Act XXXI of 1962 in sections 40 and 41 of the principal Act are ultra vires the Constitution and restraining the respondents from enforcing the provisions of the said amendment Act. The petition is by ten individuals holding different lands in respect of which separate acquisition proceedings have been taken but in view of the fact that the learned Advocate General expressly stated that he did not wish to raise any contention as regards the maintainability of such a joint petition it does not become necessary for us to deal with any question as to the maintainability of the present petition
(2.) By a notification dated the 10th of June 1963 under sec. 4 of the Act the first respondent proposed to acquire the petitioners lands set out in Annexure A to the petition along with certain other lands for the purpose of constructing thereon a railway siding for the Gujarat Refinery Project of the second respondent Pursuant to that notification the third respondent was appointed to perform the functions of a Collector under sec. 5A of the Act. The petitioners in due course filed objections before the third respondent but the same were rejected and upon the third respondent having made his report the first respondent issued the declaration dated the 7th of October 1963 under sec. 6 of the Act thereby declaring that the petitioners aforesaid lands were acquired for the second respondent and the first respondent also applied the urgency clause under sec. 17(1) of the Act. On that very day i.e. the 7th of October 1963 the first respondent published an agreement dated the 5th of October 1963 between the Governor of Gujarat and the second respondent made under sec. 41 of the Act as amended in which it was inter alia provided that the entire cost of the acquisition was to be borne by the second respondent and that no part of such costs was to come out of public funds. The declaration dated the 7th of October 1963 issued under sec. 6 of the Act clearly mentioned that the purpose for which these lands were acquired was for the construction of the railway siding for the second respondent which was taking steps for engaging itself in a work which was for a public purpose. Clearly therefore the acquisition in question was made under clause (aa) of sub-sec. (1) of sec. 40 introduced in the Act by sec. 3 of the Amendment Act XXXI of 1962.
(3.) In order to appreciate the grounds upon which the acquisition is being challenged in this petition it is necessary to set out at this stage the relevant provisions as they stood prior to the amendment and the changes made therein by the Amendment Act. Sec. 39 which remains unamended provides that the provisions of sec. 6 to sec. 37 of the Act shall not be put in force in order to acquire any land for a company unless with the previous consent of the appropriate government nor unless the company shall have executed the agreement mentioned in sec. 41. Sec. 40(1) as it stood prior to the amendment provided that the appropriate Government shall not give its consent unless it is satisfied that the purpose of the acquisition is to obtain land for the erection of dwelling-houses for workmen employed by the company or for the provision of amenities directly connected therewith or that such acquisition is needed for the construction of some work and that such work is likely to prove useful to the public. Sec. 41 as it stood prior to the amendment Act provided that if the appropriate Government is satisfied after considering the report if any of the Collector under sec. 5A sub-sec. (2)or on the report of the officer making enquiry under sec. 40 that the purpose of the proposed acquisition is to obtain land for the erection of dwelling-houses for workmen employed by a company or for the provision of amenities directly connected therewith or that the proposed acquisition is needed for the construction of a work and that such work is likely to prove useful to the public it shall require the company to enter into an agreement with the appropriate Government providing to the satisfaction of the appropriate government for the following matters. And then follow five matters namely
(1) the payment of costs of the acquisition to the appropriate Government
(2) the transfer on such payment of the land to the company
(3) the terms on which the land shall be held by the company
(4) where the acquisition is for the purpose of erecting dwelling-houses or the provision of amenities connected therewith the time within which the conditions on which and the manner in which the dwelling houses or the amenities shall be erected or provided and
(5) where the acquisition is for the construction of any other work the time within which and the condition on which the work shall be executed and maintained and the terms on which the public shall be entitled to use the work. Under sec. 55 of the Act as unamended the power to frame rules under the Act rested with the appropriate government.;
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