ABDUL HUSSEIN TAYABHAI Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
ABDUL HUSSEIN TAYABALI
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N.M.MIABHOY, N.K.VAKIL -
(1.) These sixteen petitions arise from a single set of notifications published by the State of Gujarat under secs. 4 and 6 of the Land Acquisition Act (hereafter called the Act). Though petitioners are different respondents in all the petitions are common. Therefore with the consent of both the sides the petitions were set down for hearing together and a common argument was heard in respect of all the petitions. This judgment will dispose of all the sixteen petitions.
(2.) Petitioners are owners of their respective lands situated in the village Ranoli Taluka Baroda District Baroda. There are three respondents in each of the petitions. One of the respondents is the State of Gujarat (hereafter called the State) which purports to exercise the power of the eminent domain. One D. P. Dave is another respondent. He has been joined in his capacity as the Special Land Acquisition Officer No. 2 Baroda. Though he occupied this position on the date of the filing of the petitions from the record it appears that one Dalsukhdas Karsandas Master who has filed an affidavit on behalf of respondents on 26th of August 1966 was at all relevant times the Special Land Acquisition Officer posted at Baroda who took all the steps before and after the commencement of the impugned acquisition proceedings. Suhrid Geigy Ltd. a company registered under the Indian Companies Act (hereafter called the company simpliciter) is the remaining respondent in all the petitions. This company owns about 140 acres of land in the village Ranoli. Petitioners also own lands measuring about 45 acres in the same village and the lands of petitioners form enclaves in the lands of the company. Petitioners lands were notified for acquisition by the State first on 22nd of July 1961 for acquisition under sec. 4 of the Act. The public purpose mentioned in the notification was the public purpose of the State for the establishment of a fertilizer factory. This notification was however withdrawn by the State on 11th September 1962 on the ground that the lands were not suitable for the establishment of a fertilizer factory. However on the very next day i.e. on 12th September 1962 the State issued another notification under sec. 4 for the acquisition of the same lands this time for the company. Petitioner in Special Civil Application No. 1475 of 1965 filed a writ petition No. 1035 of 1962 challenging this notification and petitioners in Special Civil Applications Nos. 1479/65 and 1480/65 and Nos. 119 to 125 of 1966 filed a joint petition No. 977 of 1962 challenging the above notification. However during the pendency of the above two notifications the first Aroras case since reported in A. I. R. 1962 S. C. page 764 was decided by their Lordships of the Supreme Court. Rs the above notification was affected by that case the proposed acquisition became infructuous. However whilst those two petitions were still pending an Ordinance was published by the President introducing certain amendments in the Act which were primarily designed to get over the effect of the first Aroras case. This Ordinance was followed by the Acquisition Amendment Act XXXI of 1962 which came into operation retrospectively from 20th July 1962 which had also introduced the same amendments to the Act as the Ordinance did. The Central Government by virtue of the power conferred upon it by the newly added proviso to sec. 55 published rules called the Land Acquisition (Companies) Rules 1963 (hereafter called the. company rules) which became effective from 22nd June 1963. Thereafter on 24th July 1963 the State withdrew the notification dated 12th September 1962 which was impugned by some of petitioners under the aforesaid two petitions. Consequently the above petitioners withdrew those two petitions. However thereafter Mr. Master the Special Land Acquisition Officer held an enquiry under rule 4 of the company rules the details of which it will be necessary for us to mention in a later part of this judgment. After the enquiry was over the State published a fresh and a third notification dated 28th August 1964 under sec. 4 of the Act for acquiring petitioners lands for the company and appointed Mr. Master to perform the duties of the Collector under sec. 5A of the Act. Petitioners filed their objections. Those objections were however overruled by the State and a notification dated 18th October 1965 under sec. 6 was published by the State Government for acquiring the above lands. The purpose which is mentioned in both the notifications aforesaid is mentioned as follows :
For the purpose of Suhrid Geigy Ltd. Namely for establishment of a factory for that company which is taking steps for engaging itself for manufacture of Optical Bleaching Agents Intermediate Dye Stuffs etc. which is for the public purpose. It is these two notifications dated 28th August 1964 and 18th October 1965 which are challenged by petitioners in these sixteen petitions. Petitioners pray that a writ of certiorari or any other appropriate writ or order cancelling or quashing the impugned notifications may be issued by this Court. Petitioners also pray that this Court may issue a writ or a direction or an order appropriate to the occasion and situation for safeguarding the fundamental rights of petitioners and more particularly those guaranteed by Articles 13 and 31 of the Constitution. All the petitions are filed under Article 226 of the Constitution. Petitioners have filed affidavits in support of their petitions. One A. J. Sheth Commercial Manager of the company has filed an affidavit in reply on 10th January 1966 Petitioners have filed an affidavit in rejoinder on 4th July 1966. One A. S. Gill Secretary to the Government of Gujarat Revenue Department has filed an affidavit dated 12th July 1966 on behalf of the State. Petitioners filed an affidavit in rejoinder to this affidavit on 26th July 1966 Petitioners have filed a further affidavit in rejoinder on 26th July 1966 A. J. Sheth has filed an affidavit in sur-rejoinder on 7th April 1966 and a further affidavit in sur-rejoinder on 9th August 1966. The petitions came up for hearing on 22nd August 1966. During the course of that hearing as a result of an argument to be presently mentioned advanced by Mr. M. C. Shah the notification dated 11th October 1963 issued by the State under sec.3(c) of the Act was produced. As a result of the production of the notification Mr. Majmudar learned counsel for petitioners in Special Civil Applications Nos. 194 to 197 of 1966 advanced an argument on the basis of some dates which would be mentioned later on which was likely to affect the validity of the acquisition proceedings. Therefore on 24th August 1966 the hearing of the petitions was adjourned to another date to enable respondents to file a further affidavit and to produce further documents. Accordingly on 25th August 1966 Dalsukhdas Karsandas Master filed a further affidavit producing some documents. The petitions were taken up for further hearing on 26th August 1966 and the hearing was finally concluded on 31st August 1966. We have mentioned this history of the filing of affidavits in detail because we found in the course of the hearing that the central point which came to be made out by Mr. M. C. Shah who led the arguments on behalf of petitioners was one which was not found to have been taken in all the petitions except one and that even that central point came to be modified after the affidavit of Mr. Master was filed is that the central point which emerges for determination in the present case came to be formulated and discussed only on 26th August 1966. As a result of the above development a number of points which were brought into prominence on the first submission hereafter to be mentioned became infructuous.
(3.) Mr. M C. Shah had first formulated the following seven points for our decision. But as we shall presently point out though the first submission was widely formulated he restricted it to two narrow grounds and gave up the fourth and the sixth submission altogether and reformulated the seventh submission giving up a substantial portion thereof. We shall indicate the clarification and the changes in the respective submissions at the proper places. The submissions were as follows :
(1) the State and the Special Land Acquisition Officer did not follow the procedure prescribed under the company rules;
(2) the purpose which is mentioned in the two impugned notifications is not a public purpose within the meaning of sec. 40 sub-sec. (1) clause (aa) of the Act;
(3) the State Government has used its power mala fide and in colourable exercise thereof;
(4) the procedure prescribed by Part VII has not been followed;
(5) the State has not applied its mind to the facts of the present case;
(6) sec. 5A is ultra vires Article 14 and Article 19(1)(f) of the Constitution; and
(7) even though the enquiry under sec. 5A is quasi judicial no opportunity was given to petitioners by the State to be heard. Therefore the proceedings under sec. 5A being violative of the principles of natural justice were void.;
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