Chandulal J. Marvaniya and Others vs State of Gujarat and Others

N.V. Anjaria, J.—The lands of the petitioners being Survey Nos. 135, 138, 139, 141 and 154 at village Kesiya, Taluka Jodiya, district Jamnagar were subjected to acquisition under the provisions of the Land Acquisition Act, 1894 (''the Act'' for sake of brevity), for the purpose of Und-II Irrigation Scheme. The intention to acquire was declared on 8-7-2005 in form of Notification under Sec. 4 of the Act. The Notification under Sec. 6 of the Act was issued on 6-9-2005. The Awards under Sec. 11 of the Act in respect of two Land Acquisition Case Nos. 95 and 137 of 2003, covering the lands of the petitioners, was declared on 4-1-2006 and 21-2-2006 respectively. By filing this petition under Art. 226 of the Constitution, the petitioners have prayed to quash the Notification dated 6-9-2005 issued under Sec. 6 of the Act. It is also prayed to set aside the Awards dated 4-1-2006 and 21-2-2006 passed in the aforementioned two land acquisition cases.

According to the petitioners, the total land acquired was 28 mtrs., which was highly excessive compared to the need, as the maximum width required for construction of minor canal for which the acquisition was undertaken, was 6 to 8 mtrs. As a result, the most of the petitioners'' land would remain unused. It was the further case that alternative land being available, that land ought to have been acquired and could have been utilized, and their lands could have been spared.

2.1. The petitioners'' case was that they had submitted objections but the authorities did not consider them and finalized the acquisition without application of mind. By incorporating an amendment in the memorandum of petition, the petitioners pleaded that the acquisition was rendered illegal on account of breach of Sec. 31 of the Act under which it was mandatory for the authorities to deposit the awarded amount in the competent Court which was not done.

2.2. Affidavit in reply on behalf respondent No. 2 is filed, wherein it is contended that the Notification under Sec. 4 of the Act was published on 24-6-2005 in Land Acquisition Case No. 95 of 2003 and on 8-7-2005 in Land Acquisition Case No. 137 of 2003, pursuant to which the petitioners did not submit objections to the Special Land Acquisition Officer within the prescribed time-limit. The Notification under Sec. 6 was thereafter issued, and it is contended that under sub-sec. (3) of Sec. 6, it was conclusive evidence of the requirement of land for public purpose. It is further contended that notices were issued to the petitioners under Sec. 9 of the Act giving them due opportunity to submit their case, and the submissions of the petitioners were taken into consideration before passing the Award.

2.3. It was further stated that in respect of those claimants who did not accept the compensation as per the Award, the amount was deposited as Revenue Deposit in the office of Mamlatdar, Jodiya. It was contended that the claimants having not raised any dispute at the time of making of Award before the Collector regarding the compensation, there was no breach of provisions of Sec. 31.

2.4. The petitioners filed affidavit-in-rejoinder in which they averred in detail regarding their representations made to the authorities in respect of availability of alternative land and the possible utilization of those lands in place of the acquired lands. Affidavit-in-sur-rejoinder is also filed by the respondents in which the case and plea of the petitioners for utilizing the alternative Government land is refuted on facts.

This Court heard Mr. Vivek N. Mapara, learned Advocate for the petitioners and learned Assistant Government Pleader Mr. Rakesh Patel for the respondent-State authorities at length.

3.1. It is noticed that the Award under Sec. 11 was declared in 2006 and preliminary Notification under Sec. 4 of the Act was issued in 2005. Therefore, the present petition, which is filed in 2011, suffers from delay and laches. The petitioners'' case that they had been making representations all along and that their case that alternative lands were available to be utilized was recommended at one stage by the Executive Engineer, is of no avail for their not approaching the Court within a reasonable time to ventilate their grievance. As held in Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, and in State of Orissa Vs. Pyarimohan Samantaray and Others, continuous making of representations could not be said to be satisfactory explanation for the delay. Similarly in K.V. Rajalakshmiah Setty and Another Vs. State of Mysore and Another, , it was held that merely because superior authority had espoused petitioner''s cause and was writing letters frequently to Government to do something for petitioners did not mean that they could rest upon their oars and not approach the Court in time. Delay in challenging the acquisition has to be viewed seriously because various procedural stages provided under the Land Acquisition Act, 1894 are time bound and has to culminate into finality, without brooking avoidable delay so as to serve the public purpose involved. The present petition could have been rejected on that ground alone.

3.2. Having regard to the undisputed position emerging from uncontroverted averments in reply affidavits that the petitioners did not submit their objections in inquiry under Sec. 5A of the Act, and that they were given opportunity under Sec. 9 which they had availed, two-fold contentions survived for the petitioners, namely the availability of other lands and non-compliance of Sec. 31 of the Act, even as this Court permitted the learned Advocate for the petitioners to make elaborate submissions on various points.

3.3. Learned Advocate for the petitioners submitted that the alternative land which could be utilized was Government waste land along side a rough road. On that land, there was encroachment which could have been removed and that road could have been shifted. It was submitted that even though powers were available under the Act to acquire, selection of land for the purpose of acquisition should have been with due application of mind and reasonable as it affects livelihood of the owners. It was also submitted that the acquisition was unjustified and amounted to colourable exercise of power, and the lands acquired exceeded the actual need.

3.4. It was next submitted that the provisions of Sec. 31 of the Act were mandatory, and when the petitioners had not consented to receive the compensation, the Collector was duty-bound in law to deposit the amount in the Court. The amount having not been deposited as per the Section, the acquisition was vitiated. It was contended that keeping the amount under the head of Revenue Deposit could not be treated to be compliance of requirement under that Section.

3.5. In support of his submissions, learned Advocate relied on the decisions in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and Others, , the judgment of the Apex Court in Devsharan v. State of U.P., [Special Leave Petition (C.) No. 8939 of 2010 decided on 7-3-2011 : 2011 AIR SCW 1778], Ashok Kumar Vs. State of Bihar and Others, , Sushil Kumar Yadunath Jha Vs. Union of India (UOI) and Others, , decision of Punjab and Haryana High Court in Capital Stone Crushers v. State of Haryana, [Civil Writ Petition No. 12471 of 1989, decided on 5-1-1993] and decision of Punjab and Haryana High Court in Trilok Singh Mohan Singh v. State of Haryana, [Civil Writ Petition No. 7678 of 1989, decided on 7-2-1994].

Learned Assistant Government Pleader, on the other hand, submitted that the acquisition had attained finality on issuance of Notification under Sec. 6 of the Act and when it was not the case of the petitioners that the purpose for which the lands were acquired was not public purpose, the petition could not be entertained by this Court under Art. 226 of the Constitution. As regards the contention about the breach of Sec. 31 of the Act, it was submitted that the plea was technical as the amount of compensation was deposited as Revenue Deposit before the Revenue authorities. It was also submitted that the contingencies under Sec. 31(2) would arise when reference under Sec. 18 is made.

4.1. Learned Assistant Government Pleader in support of his contentions placed reliance on the decisions in Govindu Venkata Reddy Vs. K. Krishna Rao and Another, , The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, , M/s. Larsen and Toubro Ltd. Vs. State of Gujarat and Others, .

The contention that as the alternative lands were available, the lands of the petitioners could not have been acquired is misconceived both in law as well as on facts. It is not open to an owner of a property to question the acquisition on such ground as held by the Supreme Court in Union of India v. K. Balaji Jaya Rama Rao, [2007 (15) SCC 791] as under :

19... It is for the Government to decide whether this property is to be acquired or some other property is to be acquired. It is not open to an owner to say that some other property is more suitable. If that were to be permitted then every owner will say that some other property is better and that that property must be acquired instead of his own. So long as the property was required for a public purpose, the mere fact that some other property could have been acquired is not aground on which the High Court can say that the reasoning for acquisition is not sufficient.

5.1. The choice of the lands which may be acquired is the domain of the Government. The subjective satisfaction of the Government would extend to the need for acquisition as well as the determination as to which lands are to be acquired. When the acquisition in the present case is for the construction of canal in an irrigation scheme, the selection of lands on which the canal could pass and could be constructed would also be informed by technical considerations. Therefore, the satisfaction of the Government regarding the particular lands to be acquired has to be treated as final. More so in the instant case when the acquired lands are to be utilized with an engineering expertise for the irrigation canal.

5.2. Even on facts, assertion of the petitioners regarding availability of alternative land stood falsified in view of the averments made in reply of the respondents stated :

I say and submit that the contentions of the petitioner that land of Road (Gada Marg) should be utilized for laying canal cannot be sustained because the road is required to be having sufficient length. If say of the petitioner is accepted and land of their is not utilized for canal, but land of road is utilized then the road will have to be shifted towards the opposite survey number, so as maintain width of the road. This, in turn will affect the owner of the other survey number which will result into multiplicity of litigation. Even otherwise also the existing road is to be utilized and that itself is of in sufficient width. In that case further reducing width of the road by utilizing of the road in laying canal will not be in any larger public interest.

5.3. It was denied that Government waste land was available and it was further stated that the suggested lands were in use for Public Road (Gada Marg) which linked villages and where the traffic was increasing day by day. As according to the respondents, no alternative lands as claimed by the petitioners were available, the case of the petitioners on that count involved disputed questions of facts, which could not be gone into by this Court in exercise of writ jurisdiction.

In order to appreciate the contention regarding non-compliance of the provisions of Sec. 31 of the Act, the text of Secs. 31(1) and 31(2) is reproduced hereunder :

Payment of compensation or deposit of same in Court :- (1) On making an award under Sec. 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled there to according to the award, and shall pay it to them unless prevented by someone or more of the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Sec. 18 would be submitted.

6.1. The provision of Sec. 31 has a salutary object of timely and assured payment of compensation to the land owners ensuring that they do not have to run from pillar to post to get their due compensation. Sub-section (1) of Sec. 31 makes it obligatory on the Collector to tender payment of compensation on making of an Award to the persons entitled under the Award. Under sub-sec. (2), the Collector is enjoined to deposit the amount of the compensation in the Court to which a reference under Sec. 18 of the Act would be submitted. The words "shall deposit" occurring in sub-sec. (2) signifies mandatory nature of duty of the Collector in this regard.

6.2. Three contingencies are contemplated for sub-sec. (2) of Sec. 31 of the Act. The first circumstance in which the Collector shall have to deposit the amount is that where the persons entitled to the compensation "shall not consent to receive it". The second circumstance is that no person is there competent to alienate the lands, and the third is the existence of dispute as to the title to receive the compensation or apportionment of the amount of compensation.

In examining the contention of the petitioners that Sec. 31(2) is breached as they have not consented to receive the compensation and the Collector has not deposited the amount in the competent Court, the phrase "if they shall not consent to receive" calls for interpretation. Taking a clue from the future tense used by the Legislature, it connotes that it is a subsequent act after the Award for compensation is declared under Sec. 11 of the Act.

7.1. In the facts of the present case the Collector has set apart and deposited the amount of compensation under the head of relevant deposit. There is no clear evidence of that amount being tendered to the petitioners. Similarly, however, the petitioners have not conveyed their reluctance to receive the amounts and kept on agitating their demand for withdrawal of acquisition which cannot be necessarily construed as refusal to receive the amount. In such circumstances, the whole acquisition proceeding cannot be held to be vitiated only on the ground of the amounts of compensation not having been deposited in Court. Therefore, in the facts of the present case, the contention of the petitioners that Sec. 31(2) is contravened is not tenable. Looking it from different angle, depositing of the amount of compensation by the Collector, even as it is not before the competent Court, but under the head of Revenue Deposit in the Government, is indicative of intention to tender and pay the compensation. If not in letters, in spirit the provisions of Sec. 31 may be treated to have been complied with.

7.2. It is true that the provision of Sec. 31 is mandatory and noncompliance thereof, in given set of facts, would vitiate the acquisition proceedings. A reference to the decision of Division Bench of this Court [Coram : D.H. Waghela and Bankim N. Mehta, JJ.] in Bhanuben Durlabhbhai Patel v. State of Gujarat, in Special Civil Application No. 18146 of 2003 with cognate petition decided on 24-9-2010 (reported in Bhanuben Durlabhbhai Patel and Others Vs. State of Gujarat and Others, may be made. In that case, the lands were acquired for G.I.D.C. Industrial Estate for which Notification under Sec. 4 was issued in the year 1988 and Notification under Sec. 6 was issued in 1989. The award was made on 14-2-1991, even as the possession of the lands in question was not taken from those petitioners. In 1996, the Officer on Special Duty informed the acquiring body that award was declared in 1991. The instruction was given in the year 1992 not to take possession, which, however, was withdrawn by a letter in 1995. After a gap of 14 years, in 2001, the possession was sought to be taken, which could not be taken. For all these years, the amount of compensation was not deposited under Sec. 31 (2) of the Act and as late as on 20-12-2003 notices under Sec. 12(2) of the Act were issued calling upon the petitioners to remain present to collect the compensation amount. In the backdrop of those facts, the Court set aside the acquisition on the grounds inter alia of non-compliance of Sec. 31 of the Act, holding that offering compensation in the year 2003 at the rate prevalent in the year 1988 was travesty of justice and amounted to indirectly abrogating the right enshrined under An. 31A of the Constitution. In the facts of the present case, however, contention regarding breach of Sec. 31 of the Act is totally misplaced.

No illegality of procedure required to be followed under the Act could be pointed out by the petitioners. The fact that the construction work of the canal was completed in part and further construction was in progress could also not be disputed by the petitioners. According to the respondents, an amount of Rs. 23.97 lakhs was already spent for the construction of canal which was a public purpose. It was also an uncontroverted position on the record that the compensation was awarded to total 19 claimants. Out of 19, possession was taken over in respect of lands covered under Acquisition Case No. 95 of 2003 under agreements dated 12-12-2003 and 18-9-2002, where as the possession of the lands covered under Acquisition Case No. 137 of 2003 was taken, as per Rojkam dated 1-3-2006 and Panch Rojkam dated 29-7-2008. The agreements and the Rojkams were annexed with the affidavit. It is seen that out of 19 claimants of both the cases, only 7 petitioners have challenged the acquisition. In view of foregoing discussion and reasons, the petition is dismissed with no order as to costs.