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2010 (5) Supreme 709
SUPREME COURT OF INDIA
P. Sathasivam and Anil R. Dave, JJ.
Dahyabhai Ranchhoddas Dhobi & Anr. — Appellants
versus
State of Gujarat & Ors. — Respondents
Civil Appeal No. 5882 of 2010
(Arising out of S.L.P. (C) No. 20604 of 2009)
Decided on : 23-7-2010
Land Acquisition Act, 1894- Section 6(2) -Acquisition of land of appellants for construction of a school in the land in question under Surat Municipal Corporation-Challenge thereagainst-Plea of appellants that that locality publication was not effected under Section 6(2) of Act -. In the counter affidavit, Land Acquisition Officer had asserted that publication of notification under Section 6 was published in the Gazette dated 21.03.1990- Public Notice displayed at the office of Mamlatdar of concerned Ward on 19.04.1990- In the light of said information, claim that there was no publication of notice in locality under Section 6(2) held unacceptable. (Para 9)
Land Acquisition Act, 1894- Section 6,11A -Acquisition of land of appellants for construction of a school in the land in question under Surat Municipal Corporation-Challenge thereagainst -Stand of appellants that Award was not made within two years from the date of last publication of Notification under Section 6, hence the acquisition was vitiated-Instantly it was clearly indicated in reply affidavit filed by Special Land Acquisition Officer that notification under Section 6 was last published on 19.04.1990, by affixing a copy of the Notification on notice board of the office of City Mamlatdar, Surat and also by affixing the same in ward No.4 of Surat city-Hence the period of two years stipulated in Section 11A would begin to run from 19.04.1990 and, therefore, publication of the Award under Section 11 of the Act on 18.04.1992 was within the stipulated time limit of two years- In such circumstances, said contention held liable to be rejected as devoid of any merit. (Para 17)
Land Acquisition Act, 1894- Acquisition of land of appellants for construction of a school in the land in question under Surat Municipal Corporation-Challenge thereagainst - Plea of appellants that inasmuch as the respondents, by a notification, had changed the classification of the land in question and designated as “residential use” they were not permitted to set up a school in the land in question-In the counter affidavit filed by the Director of Planning, Surat Municipal Corporation has highlighted that the land in question has been reserved for school purpose in development plan sanctioned by the State Government under the provisions of Gujarat Town Planning and Urban Development Act, 1976.- As per Section 20 of the said Act,acquiring body, Surat Municipal Corporation was required to acquire the land under Land Acquisition Act as the impugned land was reserved for school purpose-Further, inasmuch as the land in question was kept under reservation for school in the sanctioned development plan for the State Government under Section 17 of the Gujarat Town Planning & Urban Development Act, it was the duty of the Corporation to acquire the land for implementing provisions of the same- In view of the same, said contention was also held liable to be rejected- Objections raised by appellants held unsustainable. (Paras 18 to 21)
Facts of the Case :
Land of appellants was acquired herein in the instant case for construction of a school in the land in question under Surat Municipal Corporation .Grievance of appellants that there was no hearing/enquiry in terms of Section 5A of the Act which was mandatory; the locality publication was not effected under Section 6(2);the Award passed under Section 11A was not made within two years from the date of last publication of notification under Section 6, therefore the acquisition was vitiated; after change of classification of the land in question, namely, residential use, the respondents are not permitted to establish a primary school which is not permissible.
Findings of the Court :
Counter affidavit was filed by Special Land Acquisition Officer, Surat before High Court that notification under Section 4 in Official Gazette was published on 09.03.1989, public notice was displayed at the office of Mamlatdar of concerned Ward on 20.04.1989 and hearing of objections under Section 5A was fixed on 20.05.1989. In para 4 of counter affidavit, Land Acquisition Officer had specifically stated that appellants were given several opportunities for hearing their objections from time to time. The hearing was fixed on several dates and appellants were heard through their lawyer. In view of said specific information contention of appellants contrary to the same was held liable to be rejected.
In the counter affidavit, Land Acquisition Officer had also asserted that publication of notification under Section 6 was published in the Gazette dated 21.03.1990. Public Notice was displayed at the office of Mamlatdar of concerned Ward on 19.04.1990. In the light of said information, claim that there was no publication of notice in locality under Section 6(2) was held unacceptable.
Instantly it was clearly indicated in reply affidavit filed by Special Land Acquisition Officer that notification under Section 6 was last published on 19.04.1990, by affixing a copy of the Notification on notice board of the office of City Mamlatdar, Surat and also by affixing the same in ward No.4 of Surat city.Hence the period of two years stipulated in Section 11A would begin to run from 19.04.1990 and, therefore, publication of the Award under Section 11 of the Act on 18.04.1992 was within the stipulated time limit of two years.
In the counter affidavit filed by the Director of Planning,Surat Municipal Corporation had highlighted that the land in question has been reserved for school purpose in development plan sanctioned by the State Government under the provisions of Gujarat Town Planning and Urban Development Act, 1976. As per Section 20 of the said Act,acquiring body, Surat Municipal Corporation was required to acquire the land under Land Acquisition Act as the impugned land was reserved for school purpose.Further, inasmuch as the land in question was kept under reservation for school in the sanctioned development plan for the State Government under Section 17 of the Gujarat Town Planning & Urban Development Act, it was the duty of the Corporation to acquire the land for implementing provisions of the same. In view of the same, said contention was also held liable to be rejected. Objections raised by appellants were held unsustainable. Appeal was dismissed.
Result : Appeal dismissed.
JUDGMENT
P. Sathasivam, J. —
1)Leave granted.
2)This appeal is directed against the judgment and order dated 12.01.2009 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No. 5663 of 1990 with Civil Application No. 3458 of 2006 whereby the High Court dismissed the petition preferred by the appellants herein.
3)Brief facts:
a) According to the appellants, they are owners of the land in question measuring 848.66 sq.m., Nandh No. 2190/P, Ward No.4 of Surat City. The State of Gujarat initiated acquisition proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as the “Act”) for construction of a school in the land in question under the Surat Municipal Corporation. The appellants objected to the said acquisition on the ground that:
(i) this is the only land for them for carrying on the business of washermen and they are using this land for the purpose of their livelihood.
(ii) There are vacant/open lands adjoining to the land in question.
(iii) Within a radius of 1 km., number of schools are available particularly being run by the Surat Municipal Corporation.
(iv) While acquiring the land, the respondents have not followed the provisions of Sections 4, 5, 6 and 11A of the Act.
b) On the other hand, it is the stand of the State Government that:
(i) the land is required for establishing a primary school by the Surat Municipal Corporation.
(ii) They fully complied with the statutory notices and other requirements.
(iii) The appellants did not avail the opportunity of participating in the 5A enquiry by filing objections.
(iv) The declaration made under Section 6 of the Act is within time.
(v) Award under Section 11A has been passed within the statutory period. Since the establishment of school is for a public purpose and in view of compliance of all the statutory formalities, there is no merit in the appeal and prayed for dismissal of the same.
4)Heard Mr. Ranjit Kumar, learned senior counsel for the appellants and Mr. Prashant G. Desai, learned senior counsel for the Surat Municipal Corporation and Ms. Hemantika Wahi, learned counsel for the State of Gujarat.
5)Mr. Ranjit Kumar, learned senior counsel for the appellants has raised the following contentions:
a) there was no hearing/enquiry in terms of Section 5A of the Act which is mandatory;
b) the locality publication was not effected under Section 6(2);
c) the Award passed under Section 11A was not made within two years from the date of last publication of notification under Section 6, therefore the acquisition is vitiated;
d) after change of classification of the land in question, namely, residential use, the respondents are not permitted to establish a primary school which is not permissible;
e) In view of the fact that the area being designated as residential congested by houses on either side, it is not a fit place for establishing a school as observed by this Court in Avinash Mehrotra vs. Union of India and Others, (2009) 6 SCC 398.
6)On the other hand, Mr. Prashant G. Desai, learned senior counsel for the Surat Municipal Corporation has submitted that in view of Section 12 (2) (b) and Section 20 (1) of the Gujarat Town Planning & Urban Development Act, 1976, the State Government is well within their powers in establishing a primary school in Surat. He further submitted that all the statutory provisions have been strictly complied with and the declaration under Section 6 and Award under Section 11A were duly made within the prescribed time. Ms. Hemantika Wahi, learned counsel appearing for the State, by drawing our attention to specific averments in the counter affidavit submitted that the appellants having not filed objections in the enquiry under Section 5A, all the three modes of publication as contemplated under Section 6 were duly published and made and Award passed within the prescribed period, there is no infirmity in the acquisition proceedings and prayed for dismissal of the appeal.
7)We have considered the rival contentions and perused the rele
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