1990 Supreme(Guj) 29

Gujarat High Court
Judgename :K.J.VAIDYA, S.B.MAJMUDAR
KIKABHAI UKABHAI PATEL - Appellant
Versus
STATE - Respondent
S.C.A. 220 of 1989
Decided On : 03/02/1990

Headnote:

Constitution Of India – Art. 14 226 – Land Acquisition Act 1894 – Sec. 4 6 9 11 16 17 48 – Land Acquisition (amendment) Act 1984 – Bombay Provincial Municipal Corporations Act 1949 – Sec. 78 – Land Acquisition – S.C.A – Two petitioners through their power of attorney have filed this petition under Art. 226 of the Constitution of India challenging notifications under Sec. 4 and 6 of the Land Acquisition Act 1894 – Thereafter notices under Sec. 9 of the Act were issued and ultimately award was passed by the Special land Acquisition officer – These acquisition proceedings have been challenged on diverse grounds – Petitioners raised the following contentions in support of the petition: (1) That the first respondent after issuance of impugned notification had taken a policy decision to withdraw from the acquisition on 13 under See. 48 of the Act and consequently all further proceedings for early acquisition were null and void including the award and the respondents should be permanently restrained firm enforcing these notification against the petitioners (2) Action of the respondents especially respondents Nos. 1 and 4 herein to proceed with acquisition after having taken decision to withdraw from acquisition is actuated by mala fides and lance along all the proceedings after 13-10-1988 were null and void (3) Land acquisition proceedings have lapsed as per provisions of Sec. 11-A of the Act as the award was not passed within two years of declaration under Sec. 6 of the Act (4) Acquisition proceedings are contrary to Government policy of not acquitting lands within of 10 K. Ms. from the limits of the Surat Municipal Corporation and hence also impugned notifications are liable to be quashed – Held, (1) It appears that the third respondent was not agreeable to withdraw its proposal to acquire these lands for installation of its drainage plant and was insisting to proceed further with the same and consequently the first respondent could not and did not withdraw from acquisition of these lands which were duly notified under Sec. 6 years back in 1986 – Such resumption of proceedings there was no legal impediment as the acquisition proceedings had not died out but they survived and had merely got temporarily Suspended by the first respondent as per the yadi at Annexure H – It is therefore not possible to agree with the contention (1) – The First contention is therefore rejected – (2) It is therefore obvious that till such new proposal was received there was no occasion for the State of Gujarat to release the lands from acquisition – As that stage never reached no question of mala fide of the State Govt. would survive for not releasing the lands from acquisition – In Court’s view on the facts of the case it cannot be urged with any emphasis that non-releasing of lands from acquisition by the State of Gujarat was actuated by any mala fide – The second contention is therefore rejected – (3) Possession of these lands was sought to be taken in pursuance of declaration under Sec. 6 and it is this proposed action as per the said declaration that was stayed by this Court in Special Civil Application – Under these circumstances the time during which interim relief protecting possession of the acquired lands was granted by this Court and had continued during the pendency of Writ Petition has to be included while computing two years period for passing of the award as per Sec. 11a of the Act – Even on this ground therefore the third contention is liable to fail and is therefore rejected – (4) That the lands in question are needed for public purpose – That providing of drainage is an obligatory duty to be performed by the respondent-Corporation – In view of these averments in the affidavit-in-reply which could not be effectively controverted by the petitioners it has to be held that the lands under acquisition sro most eminently suited for the purpose of installing drainage disposal scheme – It is obvious that the lands in the vicinity of sewerage drainage plant would be ideally situated for the purpose of effective implementation of the scheme and far distant lands would not be useful for the same – Considering all these aspects of the matter therefore it is not possible to accept the contention that the lands in question have been arbitrarily selected for the purpose of acquisition – The last contention therefore also fails and is rejected – These were the only contentions canvassed in support of the petition and as they fail the petition also fails and is summarily rejected – Petition Rejected