OCHHAVLAL JETHALAL DESAI Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
OCHHAVLAL JETHALAL DESAI
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J.B.MEHTA, N.M.MIABHOY -
(1.) This is a petition under Article 226 of the Constitution of India challenging two notifications under the Land Acquisition Act (hereafter called the Act) to be presently mentioned. Petitioners are owners of two fields bearing survey numbers 1025/1 and 1025/2 situated at Balasinor District Kaira. First respondent is the State of Gujarat. It published on 15th February 1962 a notification dated 1st February 1962 under sec. 4 of the Act stating that the above lands were likely to be needed for a public purpose namely for establishing a market yard for the Agricultural Produce Market Committee Balasinor. After the objections under sec. 5A of the Act were decided first respondent published on 4th October 1962 a notification dated 20th September 1962 under sec. 6 of the Act declaring that the above two fields were needed for establishing market yard for the Agricultural Produce Market Committee Balasinor. Petitioners thereafter filed the present petition on 31st October 1962 praying that the two notifications aforesaid be quashed and that the Prant Officer Anand who was appointed as the Special Land Acquisition Officer for the purposes of the aforesaid acquisition be restrained by an order of this Court from taking any proceedings under the two notifications. The petition is based mainly on two grounds. The first ground is that the Agricultural Produce Market Committee Balasinor (hereafter called tHe Market Committee) for which acquisition is being made has not been legally constituted. The second ground is that in any case the acquisition i bad because the proviso to sec. 6 of the Act is not satisfied on the facts of the present case. In the second notification dated 4th October 1962 it has been stated that the lands are needed to be acquired at the expense of a local body. It is common ground that the local body referred to in this notification is the Market Committee. Sec. 6(1) of the Act says that when the appropriate Government is satisfied that any particular land is needed for a public purpose a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders. It is common ground that the impugned acquisition is for a public purpose. The proviso to sub-sec. (1) of sec. 6 on which the second objection is based runs as follows:
Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. One of the contentions which has been raised by respondents is that in the present case respondent No. 1 had made a contribution of Re. 1/- from out of public revenues and therefore the above proviso is satisfied. After some discussion on this aspect of the matter the learned acting Advocate General gave up this contention of respondents. Therefore for the purposes of the present petition the second objection has to be dealt with on the footing that no contribution is to come out from the public revenues. Therefore it is common ground that in order that the acquisition may be valid it is necessary that the contribution should be from as the proviso states some fund controlled or managed by a local authority. The second objection of petitioners is that the Market Committee is not a local authority within the meaning of the above proviso and therefore the acquisition is bad and void. On the other hand respondents contend that the Market Committee is such a local authority and therefore the proviso aforesaid is satisfied.
(2.) Mr. Vakil learned counsel for petitioners after formulating the first objection and arguing it for some time distinctly gage the same up and said that be was not in a position tpress the same. Therefore then only point which arises for decision in the present petition and on which the fact of this petition depends is whether the Market Committee is a local authority within the meaning of the proviso to sub-sec. (1) of sec. 6 of the Act.
(3.) Now the expression local authority has not been defined in the Act. The same has however been defined in the General Clauses Act X of 1897 (hereafter called the Clauses Act). The definition is in clause (31) of sec. 3. That expression is also defined in clause (26) of sec. 3 of the Bombay General Clauses Act. The definitions contained in the two above enactments the Clauses Act and the Bombay General Clauses Act are not exactly identical. Respondents have also placed reliance upon the definition contained in the Bombay General Clauses Act. However the Act being a central enactment the Bombay General Clauses Act is not applicable for construing the Act. Therefore the learned acting Advocate General rightly did not place any reliance upon the definition of the expression local authority contained in the Bombay General Clauses Act. But fortunately that part of the definition contained in the General Clauses Act on which alone reliance can be placed by respondents is in the same terms as the relevant part of the definition in the Bombay General Clauses Act on which respondents could have placed reliance. That being so Mr. Vakil learned counsel for petitioners did not object to and in fact cited available authorities which have construed clause (26) of sec. 3 of the Bombay General Clauses Act and an allied definition which though different in some respects is also identical on the relevant part of the definition of the same expression in the Madhya Pradesh General Clauses Act. Respondent have also relied upon sub-sec. (2) of sec. 10 of the Gujarat Agricultural Produce Markets Act 1963 That sub-section enacts-A Market Committee shall be deemed to be a local authority within the meaning of clause (26) of sec. 3 of the Bombay General Clauses Act 1904 However the learned acting Advocate General after reading that sub-section also rightly did not place any reliance upon this sub-section too. That sub-section came into force after the declaration under sec. 6 of the Act was made and after the present petition was presented. Therefore that sub-section cannot apply to the facts of the present case unless it has retrospective operation. But even assuming that the sub-section has such an operation that sub-section cannot help respondents for the main reason that it would make the Market Committee a local authority only for the purposes of the Bombay General Clauses Act and as already stated the learned acting Advocate General does not dispute that the definition as contained in the Bombay General Clauses Act can be of no avail for construing the proviso to sub-sec. (1) of sec. 6 of the Act. Therefore in the ultimate analysis the fate of this petition depends on the simple question as to whether the Market Committee is a local authority within the meaning of clause (31) of sec. 3 of the Clauses Act.;
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