IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 333 of 2012 ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= MUKESHKUMAR GOVINDBHAI PATEL LEGAL HEIR OF GULABBEN G PATEL & 13 - Petitioners Versus UNION OF INDIA THRO SENIOR DIVISIONAL ENGINEER-I & 4 -
Respondents ========================================================= Appearance :
MR PM BHATT for Petitioners. None for Respondent(s) : 1 – 4.
Ms.Reeta Chandarana, AGP, for respondent No.5.
========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 16/01/2012 ORAL ORDER
(Per : HONOURABLE MR.JUSTICE A.L.DAVE)
This petition is moved by the petitioners invoking Articles 14, 16, 19 & 226 of the Constitution of India. Undisputedly, the acquisition proceedings were initiated in the year 1957 and awards were passed in 1959. The petitioners do not dispute to have appropriately received the compensation for acquisition of their respective lands. It is the case of the petitioners that their lands, after acquisition, remained unutilized for the purpose for which they were acquired till 1973 when they were given to one Bhagubhai Vithalbhai Patel for the purpose of cultivation. After giving of that lands to Bhagubhai V. Patel for the purpose of cultivation, Railway authorities have not taken any steps to get back the property. On the contrary, the Railway authorities have given a purshis in the legal proceedings initiated by Bhagubhai V. Patel that Bhagubhai Patel would not be evicted from the lands, except by due process of law. It is also the case of the petitioners that they came to know about this transaction only in the year 2006 and, therefore, this petition.
2. In the petition, the petitioners have made the following prayers:
(A) Your Lordships be graciously pleased to hold that the acquisition proceedings of the petitioners' lands under notification at AnnexureB dated 4/10/1957 have been fraudulently undertaken in the eye of law with colourable exercise of power and that the Award No. LAQ IV/CR/103/Surat, dated 23/5/1959 at AnnexureC/1 be ordered to have never been implemented and, therefore, remained on paper only and an appropriate writ, direction or order be ordered to be issued to the respondents in this behalf in the interest of justice.
(B) Consequently, it be ordered to the respondents that now onwards, the acquisition proceedings having frustrated in law cannot be implemented against the petitioners and the petitioners be given back their own lands without any encumbrance from any corner on any condition that may be put by this Hon'ble Court.
(C) Pending admission, hearing and final disposal of this petition, Your Lordships be graciously pleased to direct the respondents to maintain status quo with regard to lands in question in the interest of justice and an appropriate writ, order or direction be ordered to be issued to the respondents in that behalf.
(D) This Hon'ble High Court be also graciously pleased to appoint any officer of this Hon'ble Court to make panchnama and map of the existing lands in question and submit his report within a week from the date of passing of such order upon usual remuneration to be paid by the petitioners in order to properly and effectively understand the nature of the issue involved in this petition in the interest of justice.”
3. The petitioners challenge the acquisition on the ground that it was a fraudulent acquisition and that the land is used for the purpose other than for which it was acquired.
4. We have heard learned advocate Mr.Bhatt for the petitioners at length and in great detail. According to him, the acquisition was actuated with mala fides because the lands in question have not been utilized for the purpose for which they were acquired after almost 50 years of acquisition. He also submitted that the Railway authorities' action is impregnated with mala fides when the authorities declared that Bhagubhai Patel would not be evicted without following the due process of law, in the legal proceedings initiated by Bhagubhai Patel. He also submitted that Surat Municipal Corporation has prepared T.P.Scheme which spreads over the lands in question, against which the Railway authorities have not taken any action and, therefore, also the acquisition was actuated with mala fides. Mr.Bhatt would then contend that Bhagubhai Patel, to whom the lands were given for cultivation in the year 1973, has been declared to be an N.R.I and still the Railway authorities have not taken any action to get the lands back. Therefore, the acquisition was actuated with mala fides. Mr.Bhatt has drawn our attention to the observations made by the Deputy Collector, Choryasi in his order dated 27.2.1987 in Tenancy Case No. A/14/86, where it is observed that the disputed lands were given to some of the employees of the Railway under a “Grow More Food”
Scheme floated by the Central Government and some employees have, in turn, given the lands to Bhagubhai V.Patel without the knowledge of the Railway Administration.
4.1 Mr.Bhatt, therefore, submitted that in light of a recent decision of the Apex Court in the case of M/s. Royal Orchid Hotels Limited and another v. G.Jayarama Reddy and others, in Civil Appeal No. 7588 of 2005, dated 29th September, 2011, this Court may entertain this petition to hold that the acquisition was actuated with mala fides and it was a mala fide view of eminent domain by the respondentauthorities.
5. We have examined the points raised by learned advocate Mr.Bhatt for the petitioners. In our view, the petition cannot be entertained on any of the two grounds on which the petitioners seek to invoke extraordinary jurisdiction of this Court. The first being that the acquisition was actuated with mala fides. In support of that, it is submitted that the land has been transferred to Bhagubhai V. Patel in the year 1973 and thereafter no action is taken to get the land back.
5.1 In this context, it has to be noted that the acquisition proceedings started in the year 1957 and awards were passed in 1959 and the petitioners received compensation due to them on account of acquisition of their respective lands. When the petitioners allege that the lands were transferred in the year 1973 to Bhagubhai V. Patel, it has to be noted that it was not a transfer of title. At the best, it can be said that the lands are being cultivated by Bhagubhai Patel as claimed by him. In this context, it is the case of the respondent authorities that the lands were not given to Bhagubhai V. Patel by the railway administration, but, he was permitted to cultivate the lands in question by railway employees, without the knowledge of the railway administration. Therefore, it cannot be held that the lands in question have been transferred to Bhagubhai V.Patel by Railway Administration. If the lands are not transferred by Railway authorities, it is a matter of dispute and the Railway authorities have reserved their right to evict Bhagubhai V. Patel after following due process of law. Thus, from the records and plea of the petitioners, it is clear that the title of land is not transferred to Bhagubhai V. Patel, as is alleged by the petitioners.
6. The other grounds, which are canvassed by learned advocate Mr.Bhatt before us, to read mala fide acquisition, are that though Bhagubhai V. Patel has been declared to be an N.R.I, no action is initiated against him and that though the Railway authorities have come to know that the lands have been permitted to be cultivated by Bhagubhai V. Patel by its employees, railway authorities have not initiated any action in that regard either against its employees or for eviction of Mr.Bhagubhai V. Patel. In our view, this inaction on the part of railway authorities, even if it is correct, cannot be related back to the acquisition proceedings that were initiated 16 years earlier, i.e. in the year 1957. It cannot be said that the acquisition proceedings were actuated with mala fides. It cannot be inferred, by any stretch of imagination, that for the purpose of inducting Bhagubhai V.Patel in the lands in the year 1973, the acquisition proceedings were initiated in 1957.
7. When there is an allegation of mala fides in acquisition, it presupposes existence of mala fides in initiation of acquisition proceedings. Neither there is any material on record nor the petitioners are able to point out any material to indicate existence of mala fides at the time of initiation of the acquisition proceedings in 1957. All that the petitioners have been able to allege is subsequent developments after several years of the acquisition.
8. So far as Surat Municipal Corporation's action of having included a part of the lands in question in its T.P.Scheme and Railway Authorities having not reacted to it, is concerned, we have no material to ascertain this aspect. In any event, even if it is true, on this count, it cannot be said that the acquisition of 1957 was actuated with mala fides. There is total absence of material or even allegation that there existed something in the year 1957 that prompted the Railway authorities to initiate the acquisition proceedings.
9. Coming to second fold of contention raised on behalf of the petitioners that the lands are not used for the purpose for which they were acquired, it has to be noted that without dispute, the lands are acquired by the Railway authorities. The Railway authorities acquired the lands keeping in mind the future expansion. The future expansion, particularly of Railway infrastructure is dependent on several aspects. This situation can not lead to an inference that the purpose for which the lands have been acquired has been abandoned.
10. Learned advocate Mr.Bhatt has heavily relied upon the decision of the Apex Court rendered in the case of M/s.Royal Orchind Hotels Limited and another (supra). In that case, acquisition proceedings were initiated in the year 1981 for the benefit of Karnataka Tourism Development Corporation. The awards were finalized in the year 1986. It was observed that the Tourism Development Corporation did not have funds to pay the awarded amount even at the time when the acquisition proceedings were initiated and, therefore, for taking possession of the land, the Corporation entered into a transaction with a third party, namely, Dayanand Pai, for a part of the land. Having come to know about this, the original land owners immediately approached the Court in the year 1988. The petitions were not entertained by the learned Single Judge of the High Court on the ground of delay taking into consideration the year of acquisition, i.e. 1981. The Division Bench of Karnataka High Court found that it was a case of gross misuse of eminent domain because the land was acquired for the Corporation, which did not have funds to pay for it at the time of its acquisition and it was that Dayanand Pai was severed, who funded the acquisition by entering into an agreement to purchase a piece of land from the Corporation and it was then found that there was a deviation of the purpose for which the land was acquired.
11. In absence of any such or similar facts in the instant case, as has been discussed earlier, it cannot be said that the acquisition, which took place in the year 1957, was actuated with mala fides. There is controversy on the question as to how Bhagubhai V. Patel came in possession. In the proceedings initiated by Bhagubhai Patel claiming to be the tenant of the lands, it is not admitted by the Railway authorities that said Bhagubhai Patel is a tenant. If the acquisition was for the purpose of helping Bhagubhai Patel, as is alleged, then the authorities could have conveniently admitted his claim of being tenant. The Railway Authorities are indicated to have only stated that they would not evict Bhagubhai Patel without following due process of law. Slackness or lack of initiative on the part of Railway authorities in taking action for the purpose of protecting the railway property, cannot be related back to 1957, the year in which acquisition proceedings were initiated.
12. The petitioners have also approached this Court at a very belated stage taken from any point of time. If it is acquisition, they are late by 55 years, if it is Bhagubhai Patel coming in possession, they are late by 38 years and if it is the date of admitted knowledge, they are late by 6 years. In this context, recent judgment of the Apex Court can be referred to. In Leelawati and others v. State of Haryana and others, (2012)1 SCC 66, the Apex Court has observed that where there is an inordinate delay in taking action after issuance of Notifications under Sections 4 and 6 read with Section 17 of the Land Acquisition Act, Court would be justified in not interfering with the acquisition.
12.1 In the case of State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006, the Apex Court observed that the provisions contained in Limitation Act do not apply to the petition invoking Article 226 of the Constitution of India. It was then observed that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Apex Court further observed that as a general rule, it may be stated that if there has been unreasonable delay, the Court ought not ordinarily to lend its aid to a party by resorting to an extraordinary remedy of mandamus.
12.2 In the abovereferred to case, the Apex Court also dealt with the question, whether the original land owners are entitled to seek a direction for return of the acquired land on the ground that the purpose for which the land was acquired has already been achieved. The Court then observed that it cannot be said that the Government will not be free to use the acquired land for any other public purpose. Such an interpretation would also be contrary to the language of Section 16 of the Act, in terms of which the acquired land vests in the State Government free from all encumbrances and the lands acquired for a particular public purpose can be utilized for any other public purpose. (Para19).
13. We do not find any merits in the petition. Therefore, the petition must fail and stands dismissed.
[A.L.Dave,J.] [Mohinder Pal,J.] -patel