B.J.DIVAN, B.K.MEHTA - (1.) In this petition the petitioners have challenged the acquisition of the different pieces of land bearing different survey numbers measuring about 10 acres situated at village Navli in Kaira District for purposes of extension of the village site of village Navli which was established some 600 years ago. The acquisition in question has been made in the following circumstances :-
(2.) As stated above the village Navli was established some 600 years ago. There is a road leading to village Juna Andhariya situted on the west of the village site of the said village Navli. That road runs from South to North. There is another road further to the west of the aforesaid road leanding to Juna Andhariya. which is known as Navli Umeta Road. All the pieces of land except 3 involved in this acquisition are situated between these two roads. The survey numbers which have been sought to be acquired for the purposes of the extension of village site land are 429 430 431 431 522 522 522 520 S25/P/1 525 527 527 527 525 525 525 647 647 647 647 647 647 647 646 plus 2 646 646 644 644 645 and 645/2. The population of the village Navli according to 1971 census was 7000. This village is situated just to the south of Anand in district Kaira The Mamlatdar Anand by his circular bearing No. LND/ W/1617 of May 31 1965 invited applications from the persons who were interested in building sites through the Gram Panchayat of village Navli so that the acquisition proceedings could be initiated. As about 290 applications were received the Panchayat in its meeting held on 25th June 1966 resolved that the Mamlatdar Anand should be requested for acquisition of 40 acres of land. The Panchayat received these applications in June 1966 The Panchayat of village Navli made a deposit of Rs. 13100/in the Sub-Treasury of Anand on July 22 1968 through its Sarpanch. It appears that a proposal was made by the Collector Kaira on September 20 1968 for acquisition of the land for purposes of extending the village site of village Navli. It appears that a Notification under sec. 4 of the Land Acquisition Act was issued on 8th January 1971 and after holding inquiry as prescribed under sec. 5A of the said Act a Notification under sec. 6 of the said Act was issued on 24th September 1971 The Notification under sec. 6 of the Act declared that the said pieces of land were to be acquired at the expense of the local body namely village Panchayat of Navli for the purpose specified in column 4 of the Schedule to the said Notification. The purpose for which acquisition was made as stated in this column 4 was for extension of village site of village Navli. The petitioners who are the owners of the aforesaid pieces of land sought to be acquired for the said purpose approached this Court in January 1972 under Article 226 of the Constitution of India for appropriate writs orders and directions challenging the said acquisition on various grounds.
(3.) Miss Shah thereafter urged that the acquisition was not for public purpose. In this connection she has pointed out to us that the cost of the acquisition was not to come out of the fund of the local authority and for all intents and purposes the cost of the acquisition was to come out of the pockets of the intending purchasers of the plots made out from the lands acquired. Miss Shah has also made a serious grievance that though the petitioners have asked for the strict proof about the the relevant resolution of the Panchayat in this connection the resolutions have not been placed on record of this case and it has not been shown also from the record of the Panchayat or of the Government that either a resolution was made or a provision was made in the budget of the relevant years providing for appropriate amount of cost for the acquisition of these pieces of land. Miss Shah has pointed out relevant sections in this connection from the Gujarat Panchayats Act and urged that before a Panchayat can exercise its power of acquiring the land a resolution should be made and if the cost of such an acquisition is to come out from the funds of the Panchayat a provision in the budget is necessary and a resolution also requires to be passed and beFore an acquisition can be said to be legal and valid necessary action under the Act governing the business of the village Panchayat must be taken. We must say frankly we are not at all impressed by this submission of Miss Shah. In the first instant it has been clearly stated in the affidavits-in-reply filed on behalf of the State Government as well as Panchayat that the entire cost of the acquisition was to come out from the funds of the Panchayat and the respondent No. 3 Panchayat had made a deposit Rs. 13 100 in the year 1968. The grievance of Miss Shah is that though this amount was deposited in the year 1968 it was practically a collection of the contributions made by the intending purchasers which was deposited in the Government treasury and therefore it cannot be said that the same was the fund of the Panchayat or it was deposited out of the funds of the Panchayat under the Gujarat Panchayats Act. We have not been able to appreciate how it can be urged when it is the case of the Government as well as the Panchayat that the entire contribution is going to come out from the funds of the Panchayat or how it can be said that the cost was not to come out from the Panchayat. Miss Shah has urged before us that in order that it could be said to be the fund of the Panchayat it must be one in reality and in law. In support of this contention she has relied on the decision of this Court in Ashokkumar Gordhanbhai v. State of Gujarat & others. where the Court was concerned with the acquisition for purposes of industrial township to be established by the Gujarat Industrial Development Corporation. Miss Shah has relied on head note to be found at page 504 of the judgment which read as under:- The requirement of the proviso to sub-sec. (1) of sec. 6 of the Land Acquisition Act will not be complied with by the mere physical fact of the amount coming out of the public revenues to meet the cost of acquisition. It can be said to be complied with only if the amount in reality and in law can be said to be the amount belonging to the public revenues at the point of time when such payment is made. In this case though the money actually comes from the public revenues to meet the cost of acquisition at that very moment by a pre-existent agreement it is treated as a loan to the Corporation. From these documents a clear picture emerges of a compact scheme of acquisition based on agreement between the Government and the Corporation which inter alia provides that though the Government will give from public revenues the amount to meet the cost of acquisition the amount will be considered to be a loan or an advance to the Corporation which will be recoverable by the Government with 6 per cent interest by half yearly instalment within fifteen years. So when the Government actually sets apart the amount or makes the payment the amount has ceased to belong to the public revenues as it treated as a loan to the Corporation and it is the money of the Corporation that is paid to meet the cost of acquisition. Miss Shah has therefore urged that this amount which is deposited in the Government treasury cannot be said to be a fund of Navil Panchayat in reality and in law because it was a fund contributed by the interested purchasers. Our attention was also drawn to sec. 99 of the Gujarat Panchayats Act which provides for the funds of the village Panchayats. The relevant clauses (h) and (i) of sub-sec. (2) of sec. 99 provide that all sums received by way of gift or contributions by the Panchayat and the income or proceeds of any property vesting in the panchayat shall be paid into and form part of the relevant fund of the village Panchayat. We are therefore of opinion that even if these are the contributions collected directly from the interested persons they would be covered in any case by clause (h) of sub-sec. (2) of sec. 99 of the Gujarat Panchayats Act and therefore for all intents and purposes it would be a fund of the village Panchayat. However this contention should not detain us further because the definition of term public purpose as given in sec. 3(f) clearly provides that the expression public purpose includes the acquisition of land for purposes of development of areas from public revenues or some fund controlled or managed by a local authority and subsequent disposal thereof in whole or part by lease assignment or sale with the object of securing further development. It is therefore clear that the acquisition of land with a view to develop the area from some fund controlled or managed by a local authority and subsequent disposal thereof in whole or in part by the method of transfer suggested in the definition would be included within the expression public purpose. The definition makes it clear that the cost may come out of any fund controlled or managed by a local authority. It is therefore obvious that the fund need not be of the local authority itself. It may be any fund either controlled or managed by the local authority and if that is going to be the source out of which the cost of acquisition is to come it would satisfy the definition of term public purpose and the subsequent disposal either wholly or in part either by lease assignment or sale with the object of securing further development of the area would constitute public purpose for which the acquisition can be made and if the notification under sec. 6 declares that the cost is to come out of the fund controlled or managed by the local authority that declaration would be beyond the scope of challenge unless it could be shown by the petitioners that that notification has been made in fraud of powers or in colourable exercise of the powers of acquisition. The 4th contention of Miss Shah therefore must fail. ;