BHASKAR BHATTACHARYA, J. -
(1.)THIS Special Civil Application has been referred to a Larger Bench by a Division Bench consisting of Jayant Patel and Mohinder Pal, JJ. under the following circumstances : -
1.1 The writ -petitioner had filed this Special Civil Application for quashing and setting aside the Notification under Section 4 of the Land Acquisition Act, 1894 (for short, "the Act" hereafter), dated 30th January, 2008 and the further Notification under Section 6 of the Act dated 29th April 2008 by which , the land of the petitioner bearing original Survey No.25/2 and 25/3 and 25/4 (now final plot No.50) was acquired.
1.2 When the matter was at the final hearing stage before the referring Bench, the said Bench decided to call for the original file from the State -respondent and it appears from the original file of the State Government that after the proposal was received by the Government, there were various correspondences, but the most important aspect was that the State Government had called for the details about actual use of the land which was already acquired earlier ad -measuring 1, 03,447 Sq.Mtrs. At the time of taking ultimate decision, the highest authority, i.e. the Hon'ble Minister, made notes in the original file, the translated version of which read as under: - "1. The sanction may be granted to publish the notification. 2. Earlier for the same purpose, land was acquired. Whether it was used or not? Considering the purpose is served or not? 28.1.2008."
1.3 According to the referring Bench, the State Government, before examining the aspect as to whether the land already acquired for the same purpose was in actual use or not and whether the purpose of earlier acquisition was served or not, granted sanction for publication of the notification. Although subjective satisfaction of the State Government is required before taking decision to acquire any particular land, according to the referring Bench, the subjective satisfaction means that the Government on the basis of the materials supplied before it, is satisfied about the requirement of the land for public purpose, which, in this case, prima facie, is not reflected from the records.
1.4 The referring Bench further recorded that the notes in the original file had indicated that from the very beginning, when the proposal was received by the Government, the information about actual use of the land which was already acquired in the past was called for and from the correspondences, it appears that such information were not supplied to the Government and before the said aspect was considered as to whether the land which was acquired earlier for the very purpose was used or not and whether the purpose was served or not, the decision was taken for publication of the notification under section 4, which prima facie was improper, particularly when the Government has taken decision to apply urgency clause under Section 17 of the Act which would mean that the inquiry under Section 5 -A of the Act would be dispensed with and the possession of the land would be taken away immediately upon the publication of declaration under section 6 of the Act.
1.5 The referring Bench was of the further prima facie view that there was material available in the original file of the State Government which indicated that the proposal was moved by the Corporation for acquisition of the land as back as 13th October 2004 onwards and the copy of the said correspondence had also been produced with the affidavit -in -reply filed on behalf of the Corporation.
The referring Bench further recorded that although initially, no objection certificate was applied by the Corporation for the land in question since it was under Urban Agglomeration and the time was consumed therein, yet, even if it is considered from the date of final decision of the District Collector, the same was 13th December 2006 as per Annexure -VIII produced with the said affidavit -in -reply. The referring Bench further recorded that the Government had ultimately taken final decision on 22nd January 2008 sic; 28th January 2008) and under the circumstances, when so much time was consumed in processing the proposal for acquisition at various levels after the District Collector was satisfied for acquisition of the land and proposal forwarded to the State Government, the referring Bench was of the prima facie view that dispensation of the inquiry under Section 5 -A was not called for and the acquisition, if undertaken in normal course without applying urgency clause under Section 17, would have served the purpose. The referring Bench further noted two decisions of the Supreme Court where the principle for application under section 17 of the Act was laid down.
1.6 Recording the above prima facie finding, the referring Bench was of the opinion that in view of an earlier decision of another coordinate Bench of this Court in SCA No.3639 of 2008 taking a contrary view on the subject -matter of the selfsame notification involving other owners, the matter should be placed before the Chief Justice for constitution of a Larger Bench for hearing of this matter.
1.7 Consequently, the matter is placed before us.
(2.)IN order to appreciate the facts involved in this application, the following dates and events are important, which are quoted below: -
Mr. Anshin Desai, the learned advocate, appearing on behalf of the petitioner has advanced fourfold submission in support of the application:
3.1 First, according to Mr. Desai, it appears from the original record that the Hon'ble Minister, while giving approval of issuing notification under section 4 of the Act by invoking urgency clause as provided in section 17(4) of the Act, did not apply his mind as would appear from the fact that before putting signature on 28th January 2008, two questions were asked: "whether earlier for the same purpose, land was acquired and whether it was used or not or whether the purpose was served or not." By pointing out the above questions, Mr. Desai contends that it is apparent that there was no application of mind while sanctioning issue of notification when the Hon'ble Minister himself put the above query in the next line. According to Mr. Desai, so long those queries were not answered, there was no justification of granting permission to proceed in terms of section 17(4) of the Act in the matter of issuing notification under section 4. Mr. Desai further contends that it would appear from the original record that those queries were answered subsequently, but in the meantime, already notification under section 4 with urgency clause had already been issued. Mr. Desai contends that on the above ground alone, the notifications under sections 4 and 6 should be quashed.
3.2 Secondly, Mr. Desai contends that invocation of urgency clause in terms of section 174) of the Act in the facts of the present case was an abuse of process of law in order to deprive his client of taking benefit of section 5A of the Act. Mr. Desai contends that before invoking the urgency clause, it is the duty of the appropriate government to be specifically satisfied that urgency is such that even to give an opportunity of raising objections, if one or two months are lost, it would frustrate the object of the acquisition. Mr. Desai contends that no material was placed before the appropriate government that this is a case of such a nature and the Hon'ble Minister, while approving the urgency clause did not take into consideration that aspect as would reflect from the approval with query itself.
3.3 Thirdly, Mr. Desai contends that in the earlier Special Civil Application, the selfsame notification was challenged by some other owners in respect of different land where his client was not made party and this Court has upheld the validity of this notification but such fact, according to Mr. Desai, does not come in the way of his client in independently challenging the said notification in respect of his land. Mr. Desai contends that the finding given in the order passed in the earlier Special Civil Application filed by some other owners in respect of other plots of land is not binding upon his client. Mr. Desai further contends that in the earlier proceeding before this Court, the original record was not called for and thus, the earlier Division Bench had no occasion even to see the endorsement of the Hon'ble Minister and if those were brought to the notice of the earlier Division Bench, the conclusion would have been otherwise.
3.4 Lastly Mr. Desai contends that in the facts of the present case, it would appear that in the past, there was an acquisition and the said acquisition was ultimately withdrawn and in the latest town town planning scheme, his client's land has been given a separate holding number. The aforesaid fact, according to Mr. Desai, indicates that there was no justification of acquiring the land by the impugned notification. 3.5 Mr. Desai, therefore, prays for allowing this application by quashing the notifications in question.
3.6 In support of his contentions, Mr. Desai relied upon the following decisions: (1) Union of India and Ors. vs. Mukesh Hans, 2004 8 SCC 14 (2) Radhyshyam (Dead) through L.Rs. and Ors. vs.State of Uttar Pradesh and Ors, 2011 5 SCC 553. (3) Darshan Lal Nagpal (Dead) By Lrs. vs. Government of NCT of Delhi and others, 2012 2 SCC 327. (4) Mahender Pal and Ors. vs. State of Haryana and Ors, 2009 14 SCC 281. (5) Devsharan and Ors. vs. State of Uttar Pradesh and Ors., 2011 4 SCC 769. (6) Tukaram Kana Joshi and Ors. vs. MIDC and Ors., 2013 1 SCC 353. (7) Surindersingh Brar and Ors. vs. Union of India and Ors., 2013 1 SCC 403 (8) Union of India and Ors. vs. Deepak Bhardwaj and Ors., 2004 AIR(SC) 3289 (9) Patasi Devi vs. State of Haryana and Ors., 2012 9 SCC 503 (10) Darshanlal Nagpal (Dead) through Legal Representatives vs. Government of N.C.T. Delhi and Ors., 2012 2 SCC 327 (11) Mulchand Khanumal Khatri vs. State of Gujarat and Ors, 2012 5 SCC 365. (12) Laxmanlal (Dead) through LRs and Anr. vs. State of Rajasthan and Anrs., 2013 3 SCC 764. (13) Women Education Trust and Anr. vs. State of Haryana and Ors., 2013 8 SCC 99 (14) Omprakash and Anr. vs. State of Uttar Pradesh and Ors., 1998 6 SCC 1 (15) National Thermal Power Corporation Limited vs. Mahesh Dutta and Ors., 2009 8 SCC 339. (16) Anandsinh and Anr. vs. State of Uttar Pradesh and Ors., 2010 11 SCC 242. (17) Mohanlal Nanubhai Choksi (Dead) through LRs. vs. State of Gujarat and Ors., 2010 12 SCC 726. (18) M. Naga Venkata Laxmi vs Vishakhapatnam Municipal Corporation and Anr., 2007 8 SCC 748. (19) Essco Fabs Private Limited vs. State of Haryana and Anr., 2009 2 SCC 377. (20) Sk. Abdul Hamid and another vs. The Land Acquisition Collector, Balasore and another, 1989 AIR(Ori) 255 (21) Pune Municipal Corporation and anothers vs. Harakhchand Misirimal Solanki and others, 2014 3 SCC 183. (22) Union of India and others vs. Krishan Lal Arneja and others, 2004 8 SCC 453.
(3.)MR . P.K. Jani, the learned Government Pleader, appearing on behalf of the State of Gujarat, has, on the other hand, opposed the aforesaid contentions of Mr. Anshin Desai and has advanced the following submissions in support of his contentions:
4.1 First, Mr. Jani contends that this application should be dismissed simply on the ground of delay in moving the present application by pointing out that the notification under section 4 of the Act was issued in the year 2008, whereas the present application has been filed in the year 2010.
4.2 Secondly, Mr. Jani submits that in the earlier proceeding challenging the selfsame notification at the instance of some owners of different lands covered under the selfsame notification, the Division Bench of this Court, after taking into consideration the materials on record having specifically upheld the notification, we should not, in this application, take a different view when the selfsame notification has been upheld and the said order was not challenged by the aggrieved party. Mr. Jani points out that the said order was sought to be challenged by the present petitioner, but he withdrew the Special Leave Application before the Supreme Court with liberty to file fresh application.
4.3 Thirdly, Mr. Jani contends that there is no dispute that the purpose for which this notification has been issued is a public purpose as would appear from the fact that municipal authority, after being satisfied with the requirement, asked the State Government to take steps for acquisition. According to Mr. Jani, once it is established that the purpose of acquisition is not mala fide but is a genuine one for the public purpose, this Court should not interfere with such decision for any technical breach of law. Mr. Jani submits that the petitioner, in this application also could not give any convincing reason why the notifications for acquisition should be set aside. Mr. Jani submits that his client is ready to convince this Court even at this stage that the purpose for which the acquisition has been made is public purpose and there is no mala fide intention in it and thus, for giving an opportunity to file objection under section 5A, the notification of 2008 should not be quashed in the year 2014.
4.5 Mr. Jani thus, prays for dismissal of this application.
4.6 Mr. Jani, in support of the above contentions, relied upon the following decisions: (1) Deepak Pahwa and others vs. Lt.Governor of Delhi and others, 1984 4 SCC 308 (2) State of U.P. vs. Pista Devi, 1986 4 SCC 251 (3) Chameli Singh v. State of U.P., 1996 2 SCC 549 (4) Nand Kishore Gupta v. State of U. P., 2010 AIR(SC) 355