J.B.MEHTA, J.M.SHELAT - (1.) The petitioners are the owners of Survey No. 205/1 of Paldi situate near Hirabaug within the municipal limits of the third respondent Corporation and admeasuring 4598 square yards. They had purchased this plot by four different sale deeds all dated October 1 1957with the object of constructing thereon bungalows for themselves. Soon after the purchase petitioner No. 1 applied for permission for N. A. use and by an order dated March 22 1958 the City Deputy Collector Ahmedabad granted that permission. Thereafter the first petitioner submitted building plans to the third respondent Corporation but the estate and City Improvement Officer of the third respondent Corporation by his letter dated May 28 1958 declined to give sanction on the ground that the land in question was being acquired. Since nothing appeared to have been done for about two years the petitioners through their advocate wrote to the third respondent on July 26 1960 enquiring as to why no intimation of any purposed acquisition was yet communicated to them and again asked the Corporation to sanction the plans. The Municipal Corporation however did not write to the petitioners whether it was going to sanction or not the said building plans and thereupon the petitioners again wrote on November 2 1960 asking for a decision in writing. On November 29 1960 the Town Development Officer of the third respondent Corporation informed the first petitioner that the application for sanction of the plans was rejected as the land was being acquired for a scheme of the Corporation for slum clearance and re-housing and also informed the first petitioner that a notification under the Land Acquisition Act was already issued. This communication to the petitioners by surprise as the Additional Land Acquisition Officer by his letter dated November 91960 had informed the petitioners that the land was proposed to be acquired for residential buildings for a society which called itself by the name of Mahatma Gandhikunj Co-operative Housing Society and had enquired from the petitioners if they required the land for their personal use. On November 30 1960 the petitioners had written to the Land Acquisition Officer protesting against the proposed acquisition for the society and had informed him that they needed the land for constructing bungalows for themselves. Since the petitioners had thus received two letters one from the Corporation and the other from the Land Acquisition Officer each mentioning a different purpose for the proposed acquisition the petitioners enquired of their vendors whether any orders had been issued in respect of the land and thereupon the petitioners vendors informed them that they had received a notice on December 8 1960 under sec. 9 of the Land Acquisition Act 1894 and an intimation that possession of the land would be taken by the Special Land Acquisition Officer on December 13 1960 Though the notice was served on the vendors on December 8 1960 no such notice was served on the petitioners although their names were in fact set out in that notice. On December 10 1960the father of respondents 3 and 4 and their advocate saw the second respondent and told him that though possession was proposed to be taken on December 13 1960 no notice under section 9 was served upon them. According to the petitioners on an enquiry they found that on December 19 1957 a notification under sec. 4(1) read with sec. 17(4) Exhibit was issued to acquire 4231 square yards out of the said lands for the purpose of slum clearance housing and roads and another notification dated August 5 1958 under section 6 of the Act Exhibit H to the petition was issued in respect of the said 4231 squares yards out of the said lands. On February 21 1959 another notification was issued under sec. 4 proposing to acquire 363 square yards out of the remaining lands for the same purpose.
(2.) The petitioners have challenged these two notifications copies whereof are Exhibits a and H to the petition on the grounds that- I. the land in question is neither waste nor arable and therefore the notification under section 4(1) read with section 17(4) is bad in law and issued without jurisdiction as it was issued without determining the objective fact as to whether the land was in fact waste or arable land; II. the condition precedent of the urgency clause under section 17(4) of the Act is that the land must be waste or arable land but the land being a building site situate is a residential locality it was impossible that either the State Government or the Commissioner as the case may be could have on application of mind determined that the land was either waste or arable; III. the urgency clause was therefore applied without application of mind and the petitioners were thereby deprived of their valuable right of being heard under sec. 5A; IV. the notification under section 6(1) was also invalid as it was issued without complying with the provisions of sec. 5A and therefore the declaration therein contained was not conclusive evidence that the land was needed for a public purpose; V.that all proceedings consequent upon the impugned notifications under sections 4 and 6 were also illegal and void and therefore the notice under section 9 was bad; VI. even if it were to be held that the urgency clause was rightly applied the notice under sec. 9 and the action to take possession thereunder were bad as the notice was served on the petitioners on December 12 1960 and possession was sought to be taken from the petitioners on December 13 1960 i.e. before the expiry of fifteen days as required by section 9; VII. that the alleged purpose of slum clearance re-housing and roads was not bona fide because if the land was acquired for that purpose the respondents having applied the urgency clause as early as December 1957 they would not have waited so long as September 41958 when the notification under section 6(1) was issued and until December 1960 when the notice under section 9 for possession was served; and VIII. that the only ground on which sanction to the petitioners building plans was withheld by the Corporation being that the land was being acquired if the notifications were held to be illegal the Corporation was bound in law to give Its sanction.
(3.) Though the petitioners challenged the notifications and the notice under sec. 9 on these several grounds Mr. Nanavati for the petitioners mainly challenged the validity of the two notifications on the ground that there was no application of mind by the State Government as to the objective fact whether the land was waste or arable land while issuing the notification under section 4(1) and applying the urgency clause under section 17(4) thereby dispensing with the enquiry under section 5A and depriving the petitioners of their valuable right to be heard on their objections. It is clear that under section 4(1) it is the appropriate Government, which has to be satisfied that the land in question is needed, or is likely to be needed for a public purpose and when so satisfied a notification under section 4(1) can be issued. Under section 5A any person interested in such land has within thirty days after the issue of the notification to lodge his objections to such proposed acquisition by a writing addressed to the Collector and the Collector then has to give such a person an opportunity of being heard and the Collector has after making such further enquiry if any as he thinks necessary to submit the case for the decision of the appropriate Government. The decision of the appropriate Government on such objections is final and therefore cannot be gone into by a Court of law. It is after the Government is so satisfied that a declaration is to be made under sec. 6(1) and such a declaration under section 6(3) is conclusive evidence that the land is needed for a public purpose or for a company as the case may be. Under sec. 16 it is only after the Collector has made his award under section 11 that he can take possession of the land free from all encumbrances. But section 17(1) provides that in cases of urgency when the appropriate Government so directs the Collector may though an award is not made on the expiry of fifteen days from the publication of the notice under sec. 9(1) take possession of any waste or arable land and such land would then vest in the Government. Under sub-section (4) of sec. 17 in the case of any land to which in the opinion of the Government the provisions of sub-secs. (1) or (2) are applicable the appropriate Government may direct that section 5A shall not apply and in that case it can make a declaration under sec. 6 at any time after the notification under section 4(1) has been issued. It is thus clear that under section 17 and (4) before an appropriate Government can direct that sec. 5A is to be dispensed with the Government has to be satisfied (1) that it is a case of urgency and (2) that the land in question is either waste or arable land. This is clear from the provisions of sub-sec. (4) of sec. 17 which provides that section 5A can be dispensed with in cases to which sub-sections (1) and (2) of sec. 17 apply. Though the satisfaction under section 17(1) and (4) is a subjective one and is not open to a challenge before a Court of law it must be the satisfaction of the appropriate Government and that satisfaction is in respect of an objective fact namely the existence of urgency and the fact that the land in question is either waste or arable land. It is obvious that such satisfaction can be only arrived at by the appropriate Government applying its mind and taking into account relevant considerations as to whether the land is waste or arable and without such application of mind there can clearly be no satisfaction which is a condition precedent to the dispensing of an enquiry and a report by the Collector under sec. 5A.;