Full Judgment Text
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PETITIONER:
RAMGIR UTTAMGIR GOSWAMI
Vs.
RESPONDENT:
STATE OF GUJARAT & ANR.
DATE OF JUDGMENT20/01/1988
BENCH:
KANIA, M.H.
BENCH:
KANIA, M.H.
OZA, G.L. (J)
CITATION:
1988 SCR (2) 776 JT 1988 (1) 167
1988 SCALE (1)123
ACT:
Land Acquisition Act, 1894: Sections 4 and Intra vires
Constitution of India 1950 Land-Acquisition of-Enlargement
of village site to house families rendered homeless by
floods Collector/Survey officer/Revenue Authority-Whether
must first decide on question regarding enlargement of site-
Suitability of land Assessment of To be decided by Land
Acquisition officer - Whether plea of exhaustion of ’public
purpose’ on account of delay in acquisition tenable.
Bombay Land Revenue Code, 1879: Section 126 Limits of
sites of villages, towns and cities-Collector/Survey
officer-Not necessarily to first decide question to enlarge
or vary, site before resorting to acquisition.
HEADNOTE:
%
The lands of the appellant were situated on the banks
of the river Tapti known for its frequent floods. They were
sought to be acquired under the Land Acquisition Act, 1894.
The preliminary notification declaring the intention to
acquire the said land was issued under s. 4 of the act and
published in the Government Gazette on April 30, 1970. It
was notified that the proposed acquisition was for the
public purpose for extension of the village site for the
purpose of housing 12 families who had been rendered
homeless because of floods in the Tapti river. An individual
notice under s. 4 of the Act was served on the Appellant on
May 2, 1970. He filed his objections against the proposed
acquisition on May 12, 1970 and filed additional objections
on June 20, 1970 and July 6, 1970 respectively. After the
consideration and rejection of the said objections, the
notification of the lands under s. 6 was issued on December
8, 1970. Notices under s. 9 were issued on January 8, 1971.
The appellant challenged the aforesaid acquisition in a
writ petition in the High Court on various grounds, the main
ground being that the provisions of ss. 4 and 6 of the Act
were ultra vires the Constitution. The High Court dismissed
the petition, but granted a certificate of fitness under
Article 133(t)(c) of the Constitution.
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In the appeal to this Court on behalf of the appellant
it was conceded: (1) that the vires of sections 4 and 6
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could no longer be called in question, but it was submitted
that (t) under the provisions of the Bombay Land Revenue
Code, 1879 it must be established that the lands in the
existing village site are insufficient for the extension of
the village site before any acquisition can be resorted to,
(2) the land acquisition authorities had failed to consider
what were the other lands available which could have been
more conveniently acquired, and (3) since several years have
passed from the date of the Notification under s. 4, the
victims of the floods must have been housed and
rehabilitated elsewhere and hence the public purpose for
which the lands were sought to be acquired does not survive.
Dismissing the Appeal the Court,
^
HELD: t. The challenge to the vires of sections 4 and 6
of the Land Acquisition Act, 1894 no longer survive in view
of the validity of the sections having been upheld by this
Court in Manubhai Jehtalal Patel and Anr. v. State of
Gujarat and others, ]983 4 SCC 553. [778F]
2. Section 126 of the Bombay Land Revenue Code merely
deals with the limits of the site of any village, town or
city and prescribes the procedure for fixing the limits of
such sites. There is nothing in the Bombay Land Revenue Code
or the Land Acquisition Act which would suggest that before
acquisition can be resorted to for enlarging a village site,
the Collector or a Survey officer or Revenue Authority must
decide upon such enlargement. [781E-F]
Chandrabhagabai Udhaorao and others v. Commissioner,
Nagpur Division, Nagpur Ors., [1962] Nagpur Law Journal,
Vol. XLV at p. 466 and Sitaram Maroti v. State of
Maharashtra, [1963] 65 Bombay Law Reporter, 241
distinguished.
3. The assessment of suitability of the land proposed
to be acquired for the concerned public purpose is primarily
for the Land Acquisition officer to consider, and no good
reason has been shown on behalf of the appellant which could
warrant interference with his decision. Moreover, the
appellant had not even given proper particulars of the other
lands which, according to him, were available and were more
suitable for acquisition and hence he can make no grievance
on the score of proper consideration not having been given
to the question of acquiring such lands. [782BC-D]
778
4. The delay in the acquisition has taken place on
account of the legal proceedings adopted by the Appellant
himself and by reason of the interim orders obtained by him.
He cannot take advantage of this delay and claim that the
public purpose no longer survives. Moreover, the public
purpose stated in the Notification is the extension of a
village site or goathan of the village Bhairav and there is
nothing to show that the public purpose has exhausted
itself. In fact, on account of increasing population, it
would be more necessary today that the village site should
be extended even then it was at the time when the
notification was issued.[782E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2720 of
1972.
From the Judgment and order dated 29/30-8-72 of the
Gujarat High Court in Special Civil Appeal No. 315 of 1971.
T.U. Mehta and M.N. Goswami for the Appellant.
Vimal Dave, M.N. Shroff and KMM Khan for the
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Respondents.
The Judgment of the Court was delivered by
KANIA, J. This is an Appeal against the judgment of a
Division Bench of the Gujarat High Court dismissing a writ
petition filed by the Appellant herein. The Appeal has been
filed on a certificate of fitness granted by the Gujarat
High Court under Article 133(1)(c) of the Constitution.
The main challenge in the writ petition was to the
vires of sections 4 and 6 respectively of the Land
Acquisition Act, 1894. That challenge no longer survives in
view of the validity of the sections having been upheld by
this Court in Manubhai Jehtalal Patel and Anr. v. State of
Gujarat and others, [1983] 4 S.C.C. 553. The lands in
question are situated at village Bhairav, Taluka Kamrege,
District Surat, Gujarat. The said lands are situated on the
bank of the river Tapti which is known for its frequent
floods and the lands are covered in Survey No. 2. The said
lands admeasure 1 acre and 39 gunthas. We propose to refer
to the said lands in the aggregate as "the said land". The
said land is also known as the "Maksheshwar Mahadev Land".
The Appellant claims to be the occupant and owner of the
entire land comprising in Survey No. 2 which includes the
said land. It may be mentioned that the claim of the
Appellant to be the owner and
779
Occupier of the said land is based on his being the senior
member of his family but we are not concerned with that
question as we propose to proceed on the footing that he is
in actual occupation of the said land. The preliminary
notification declaring the intention to acquire the said
land was issued under section 4 of the Land Acquisition Act,
1894 and published in the Government Gazette of the State of
Gujarat on April 30, 1970. It was notified that the proposed
acquisition was for a public purpose, namely, for extension
of the village site of the village Bhairav. It is common
ground that the extension of the village site was required
for the purpose of housing 12 families who had been rendered
homeless because of floods in Tapti river. An individual
notice under section 4 of the Land Acquisition Act was
served on the Appellant on May 2, 1970. The Appellant filed
his objections against the proposed acquisition on May 12,
1970 and filed additional objections on June 20, 1970 and
July 6, 1970 respectively. After consideration and rejection
of the said objections, the notification for acquisition of
the lands under section 6 of the Land Acquisition Act was
issued on December 8, 1970. Notices under section 9 of the
Land Acquisition Act were issued on January 8, 1971. The
said acquisition was challenged by the Appellant in the writ
petition on various grounds.
The main ground on which the said acquisition was
challenged in the writ petition was that the provisions of
sections 4 and 6 respectively of the Land Acquisition Act
were ultra vires the Constitution of India. That challenge,
as we have already pointed out, has been finally negatived
by this Court. In view of this, Mr. Mehta fairly conceded
that the vires of sections 4 and 6 of the Land Acquisition
Act could no longer be called in question before us. It was,
however, pointed out by him that the said notification was
also challenged on some other grounds.
It was contended by Mr. Mehta that under the provisions
of the Bombay Land Revenue Code, 1879, it must be
established that the lands in the existing village site are
insufficient for the extension of the village site before
any acquisition can be resorted to. It was submitted by Mr.
Mehta that before the said land could be acquired for the
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afforested public purpose, the revenue authorities should
have satisfied themselves that there were no unoccupied
lands in the village which were suitable, appropriate and
available for the extension of the village site or abadi and
since that has not been done, the acquisition could not said
to be for a public purpose. Mr. Mehta sought support for
these submissions from the decision of a Division Bench of
the Nagpur Bench of the Bombay High Court in Chandrabhagabai
Undha-
780
orao and others v. Commissioner, Nagpur Division, Nagpur &
Ors.,[1962] Nagpur Law Journal, Vol. XLV at p. 466. It was
held in that case that the provisions of section 226 of the
Madhya Pradesh Land Revenue Code require that the Deputy
Commissioner of the District or any other person authorised
under law by him must record a finding that the village
abadi is insufficient and that there is no other unoccupied
land suitable for the purpose of extension of the village
abadi before land could be compulsorily acquired for that
purpose. The decision as to the sufficiency or otherwise of
the land in the abadi must be taken by the Deputy
Commissioner. The Land Acquisition officer cannot substitute
his opinion for that of the Deputy Commissioner in
purporting to comply with the provisions of section 226.
Reliance was also placed by Mr. Mehta on the decision of a
Division Bench (Nagpur) of the Bombay High Court, in Sitaram
Maroti v. State of Maharashtra, [1963] 65 Bombay Law
Reporter, 241 which is to the same effect as the aforesaid
decision and, in fact, follows it. It was submitted by Mr.
Mehta that the provisions of section 226 of the Madhya
Pradesh Land Revenue Code were substantially similar to the
provisions of section 126 of the Bombay Land Revenue Code
which is really the provision applicable to the lands in
question before us. We are totally unable to accept the
submission of Mr Mehta that the provisions referred to above
are in pari materia.
Section 226 of the Madhya Pradesh Land Revenue Code
provides as follows:
"226. (1) Where the area reserved for abadi is in
the opinion of the Deputy Commissioner
insufficient, he may reserve such further area
from the unoccupied land in the village as he may
think fit.
(2) Where unoccupied land for purposes of abadi is
not available, the State Government may acquire
any land for the extension of abadi and the Deputy
Commissioner shall dispose of such land on such
terms and conditions as may be prescribed.
(3) The provisions of the Land Acquisition Act,
1894 shall apply to such acquisition and
compensation shall be payable for the acquisition
of such land in accordance with the provisions in
that Act."
A perusal of the said section shows that before the State
Government
781
acquires any land for extension of abadi, the Deputy
Commissioner has to give his opinion that the area reserved
for abadi in the village in question in insufficient. A
reading of sub-section (2) of the said section shows that it
is only where unoccupied land for the purpose of abadi is
not available, that the State can acquire any land for
extension of abadi. Sub-section (3) merely makes the
provisions of the Land Acquisition Act applicable to the
procedure for acquisition and for determining the
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compensation. The provisions of section 126 of the Bombay
Land Revenue Code, 1879 read altogether differently. The
said section runs as follows:
"126. Limits of sites of villages, towns and
cities how to be fixed.
It shall be lawful for the Collector or
for a survey officer, acting under the
general or special orders of the State
Government, to determine what lands are
included within the site of any village,
town, or city, and to fix, and from time to
time to vary the limits of the same, respect
being had to all subsisting rights of
landholders."
A perusal of section 126 of the Bombay Land Revenue
Code shows that unlike section 226 of the Madhya Pradesh
Land Revenue Code, there is nothing in section 126 which
indicates that the Collector or a Survey officer acting
under his orders has to first decide to enlarge or vary the
site of any village, town or city before acquisition is
resorted to for enlarging or varying such site under the
Act. Section 126 merely deals with the limits of the site of
any village, town or city and prescribes the procedure for
fixing the limits of such sites. There is nothing in the
Bombay Land Revenue Code or the Land Acquisition Act which
would suggest that before acquisition can be resorted to for
enlarging a village site, the Collector or a Survey officer
or Revenue Authority must decide upon such enlargement.
Great emphasis was laid by Mr. Mehta on the last part of
section 126 which shows that the enlargement of the site has
to be made, keeping in mind the rights of the landholders.
However, in our opinion, this factor is of no relevance in
the present case as there is nothing on record to establish
that such rights have not been taken into account.
The next submission of Mr. Mehta was that the land
acquisition authorities have failed to consider what were
the other lands available which could have been more
conveniently acquired for the public purpose referred to
earlier. It was pointed out by him that in the writ
petition, the Appellant (petitioner) has alleged that he
could have
782
pointed out certain other lands and open spaces where the
twelve families rendered homeless by the floods of Tapti
river could have been housed. With reference to these
allegations, the Respondents in their counter-affidavit
filed before the Gujarat High Court have rightly pointed out
that the Appellant had not given any details regarding other
more suitable lands available for acquisition and hence it
was not open to him to make a grievance on that score.
Moreover, in paragraph 29 of the counter-affidavit, the
Respondents have pointed out that the lands referred to by
the Appellant in his petition were not suitable for housing
the victims of the floods because they were lowlying lands
lands and not suitable for residential purposes. The
assessment of suitability of the land proposed to be
acquired for the concerned public purpose is primarily for
the Land Acquisition officer consider and no good reason has
been shown to us which could warrant interference with his
decision. Moreover, we are satisfied that the Appellant had
not even given proper particulars of the other lands which,
according to him, were available for acquisition and were
more suitable for acquisition and hence he can make no
grievance on the score of proper consideration not having
been given to the question of acquiring such lands.
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It was lastly submitted by Mr. Mehta that since several
years had passed from the date of the Notification under
section 4, the victims of the floods must have been housed
and rehabilitated elsewhere and hence the public purpose for
which the lands were sought to be acquired does not survive.
We are a little surprised at this argument. The delay has
taken place on account of the legal proceedings adopted by
the Appellant himself and by reason of the interim orders
obtained by him. He cannot take advantage of this delay and
claim that the public purpose no longer survives. Moreover,
the public purpose stated in the Notification is the
extension of a village site or goathan of the village
Bhairav and there is nothing to show that this public
purpose has exhausted itself. In fact, we presume, on
account of the increasing population, it will be more
necessary today that the village site should be extended
even then it was the time when the notification was issued.
This submission must also fail.
The other controversies sought to be raised by the
Appellant are factual in nature and we do not consider it
necessary to go into the same.
In the result, the Appeal fails and is dismissed with
costs.
N.V.K Appeal dismissed.
783