Bhikhabhai Rambhai and Others vs State of Gujarat and Others

Gokulakrisiinan, C.J.—Leave to amend as prayed for to add three more petitioners is granted.

2.This Special Civil Application is filed for issuing a writ of mandamus or any other appropriate writ for the purpose of quashing and setting aside the impugned notice at Annexure-A and also for restraining respondents 2 and 3 from occupying the said land in question. The State of Gujarat, invoking S. 35 of the Land Acquisition Act, wanted to acquire the strip of land, the details of which are given hereunder, temporarily for the purpose of having a road to approach the O.N.G.C. well, shown in the plan now submitted by the respondents :

The main contentions of Mr. Patel, learned counsel appearing for the petitioners, are that there is no public purpose for acquiring these survey numbers inasmuch as the respondents have already taken possession of different survey numbers only last year for the purpose of having a road from the main road and inasmuch as there is already a cart-track in existence, through which the ingress and egress can be had for the respondent No. 2 O.N.G.C. It is further contended that the acquisition is not bona

S. No./ Hec. Area/ Name of village Block No. Sq. Mtrs. Name of owner

Dantkarodi 42 0-07-55 Ramubhai Manorbhai Raichand Karshanbhai Mithadharva 379 0-12-60 Mafatlal Nathushanker Jayantilal Nathushanker 380 0-06-40 Ladhubhai Mulchanddas, resident of Lanwa 394 0-02-90 Vishvanath Joitaram 395 0-13-80 Vishvanath Jotharam

fide and the same has been done with mala fide intention of helping the contractors, who want to use this road for the transport facilities. Allowing the acquisition for the purpose of giving benefit to contractors to use this road, according to the learned counsel Mr. Patel, cannot be considered as public purpose. The next contention put forward by Mr. Patel is that these lands are fertile lands and it could not have been acquired since there is already an alternative road for the use of the respondent 2.

To appreciate the contentions of the respective parties, we can just refer to a few facts in this case. O.N.G.C. has a drill-site at Lanwa-19, which has a geological name LWAJ. It is situated at Dant Karodi and Mitha Dharva villages. At the time of finding this drill site, there was one village approach road from village Lanwa to this drill site Lanwa-19. In order to effectively carry out the drilling, a temporary approach road was constructed by acquiring land by private negotiations and mutual understanding with the parties for taking drilling rig to the drill site LWAJ. Inasmuch as this temporary road site which connects the main road is lengthy and zigzag, the respondents surrendered the said land to the owners by paying compensation and the land was restored to the parties for agricultural purpose. The village road, which is already in existence, according to the respondents, is a narrow one with the large number of underground pipelines and if any heavy truck is taken over the same, it is bound to damage badly the pipelines. If this village road is used for taking such heavy trucks, it may also damage the road side fencing, roadside trees and standing crops of various land owners of that area. Since the O.N.G.C. requires . one shortest and direct approach road so that heavy rig equipments and other heavy equipments can pass from Mehsana Chanasma road to Lanwa-19 drill site, a strip of land from the present survey numbers is sought to be acquired through the provisions contained in S. 35 of the Land Acquisition Act.

In short, the above said statement of facts is the main contention advanced by the learned counsel appearing for the respondents in this case. In respect of notice of which Mr. Patel took objection on the ground that the notice mentions only for digging bores and for research work that these lands are acquired Mr. M.I.Hawa and Mr. R. H. Mehta, learned counsel appearing for the respondents, submitted that it is in connection with this work that these strips in the above survey numbers are sought to be acquired and also for the purpose of laying the road. It is clear from the reply given by the respondents and also from the contentions advanced by the petitioners that the petitioners understood that the respondents wanted to acquire these disputed area only for the purpose of putting up the road. Further, it is clear from the notices issued by the respondents and from the fact that only a strip of land in the survey numbers referred to above is sought to be acquired that the purpose of acquiring these lands is for laying the road to connect the Lanwa-19 drill site with the main road. Hence the argument that the notice specifies a different purpose than the one for which the land is sought to be acquired cannot have any substance.

Before considering the other contentions raised by the learned counsel as regards the mala fide nature of acquisition and want of public purpose, we can usefully refer to the section under which the present acquisition is made. Section 35 of the Land Acquisition Act reads as follows :-

"35. Temporary occupation of waste or arable land. Procedure when difference as to compensation exists,-

(1) Subject to the provisions of Part VII of this Act, whenever it appears to the appropriate Government that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a company, the appropriate Government may direct the Collector to procure the occupation and use of the same for such term as it shall think fit, not exceeding three years from the commencement of such occupation.

(2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof for such term as aforesaid and for the materials (if any) to be taken there from pay to them such compensation, either in a gross sum of money, or by monthly or other periodical payments, as shall be agreed upon in writing between him and such persons respectively.

(3) In case the Collector and the persons interested differ as to the, sufficiency of the compensation or apportionment thereof the Collector shall refer such difference t the decision of the Court."

Section 36 of the Land Acquisition Act reads as follows: -

"36. Power to enter and take possession, and compensation on restoration, -

(1) On payment of such compensation, or on execution of such agreement, or on making a reference under S. 35, the Collector may enter upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice.

(2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage (if any) done to the land and not provided for by the agreement, and shall restore the land to the persons interested thereon :

Provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require, the appropriation Government shall proceed under this Act to acquire the land as if it was needed permanently for a public purpose or for a company."

In the Gujarat Amendment, called the Land Acquisition (Gujarat Unification and Amendment) Act XX of 1965, under S. 17 of the said Act, the words "waste or arable" occurring in S. 35 of the main Act were deleted. The learned counsel Mr. Patel, even though wanted to submit that the land acquired is not a waste or arable land, did riot press this point, since there is an amendment by the Gujarat Act, as referred above.

The next contention of Mr. Patel is that the temporary occupation of the land is subject to the provisions of Chapter V11 of the Act. Mr. Patel, reading Ss. 39 and 40 of the Act, states that inasmuch as there is no enquiry u/S. 5A, the acquisition sought to be. made u/S. 35 in this case cannot be sustained. This point was correctly met by Mr. Hawa, by pointing out the definition of Ss. 2(c) and 2(cc). Reading of S. 35 and also this Chap. VII, it is clear that the enquiry contemplated will apply only when acquisitions are made u/S. 35 kw The Company. Section 3(e) defines the expression "Company" as follows:-

"(c) the expression "company" means -

(i) a company as defined in S. 3 of the Companies Act, 1956, other than a Government company referred to incl.(cc);

(ii) a society registered under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State, other than a society referred to in clause (cc);

(iii) A co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, other than a cooperative society referred to in clause (cc);"

Section Nee) explains the expression "corporation owned or controlled by the State and it reads as follows:

(cc). The expression "corporation owned or controlled by the State" means any body corporate established by or under a Central, Provincial or State Act, and includes a Government company as defined in S. 617 of the Companies Act, 1956, a society registered under the Societies Registration Act, 1860, or under any corresponding law for the time being in force in a State, being a society established or administered by Government and a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, being a co-operative society in which not less than fifty-one per centum of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments;"

O.N.G.C. cannot come under the definition of expression of "company" contemplated under the Land Acquisition Act. Hence we do not think that the argument of Mr. Patel that it is a company and as such the provisions of Section 5A ought to have been followed can be sustained.

Mr. Patel cited the decision in the case of Patel Shankerbhai Mahijibhai Vs. State of Gujarat, . In this case, a Bench of our High Court dealing with Land Acquisition Act, S. 4, held that:

"Specification of a public purpose which would enable the interested persons to lodge the objections effectively under S. 5A is the core of S. 4. If that requirement of S. 4 is not satisfied, notification issued u/S. 4 must be held to be void. A declaration u/S. 6 is not a cure because it follows the enquiry u/S. 5A. A notification which does not specify the public purpose being void or non-est. is not so much required to be set aside."

In the case of Musamiya Imam Haidarbux Razvi v. State of Gujarat AIR 1971 Guj 155 the Bench of this Court no doubt held that declaration can be challenged on the ground that it was in colourable exercise of power of the State Government. It was also held in that decision that the court can enquire into the question of public purpose.

In the case of State of Punjab and Another Vs. Gurdial Singh and Others, , the Supreme Court has held that the court cannot interfere unless choice is made with oblique ends or is otherwise void. In this connect ion, Mr. Patel also cited the decision in the case of Collector (District Magistrate) Allahabad and Another Vs. Raja Ram Jaiswal, .

Pressing into service all these decisions, Mr. Patel stated that the intention to acquire this strip of land belonging to the petitioners herein is mala fide and that there is absolutely no public purpose served by acquiring this land. As far as the public purpose is concerned, Mr. Patel pressed his point by stating that this road is developed for the purpose of helping the contractors to have ingress and egress for their transport purposes. Hence, according to Mr. Patel, there is no public purpose in this acquisition.

As regards the question of mala fides, Mr. Patel has pointed out the averments in para 6 of the petition, which read as follows : -

"6. That the purpose of the said occupation is not really within the scope of the Land Acquisition Act, but smacks of mala fide intention to acquire the land in question at the public exchequer to accommodate some vested interest elements, who are engaged as contractors for O.N.G.C. as transport contractors and in collusion with the said outside agency, the respondent 2 has issued the impugned notice which is nothing but misuse of discretionary power vested in the respondent 2, which is mala fide, caprice, discriminatory in nature and for oblique purpose."

It is the say of Mr. Patel that this averment of mala fides made by him has not been controverted by the respondents. We are not able to appreciate this argument advanced by Mr. Patel. Mr. K. S. Shah, Assistant Director (Survey), Land Acquisition Department of the O.N.G.C. Mehsana Project has definitely stated the necessity for acquiring this strip of land for the purpose of constructing the road. It is stated in para 3 of the said affidavit-in- reply. While narrating the facts, we have narrated in our own words what the respondents have stated in para3 of the affidavit filed by one Mr. K. S. Shah. Apart from the averments made in para 3, there is a clear averment in para 4 of the said affidavit-in-reply, wherein it is stated as follows : -

"4. I say that this approach road is required to be occupied temporarily on urgent basis. The action was taken by the Spl..Land Acquisition Officer and notices were issued to all concerned five land owners residing in Lanwa village and owning land in villages Kitha Dharva and Dant Karodi. This proposed road is preferred being the shortest and direct road from Mehsana-Chanasma road to the site LWAJ, having regard to the fact that the village road is narrow and lengthy and could damage the underground cement pipelines and also could cause damage to the heavy equipment of the Commission. I say that no other approach road is preferable and better than the proposed one, which is required for temporary occupation."

Thus, it is clear from these averments and the arguments advanced by the learned counsel for the respondents, that the acquisition is not for oblique purposes to help the contractors; not out of mala fides, but for a genuine purpose of having a road, which will be shortest one from the main road to the , drill site in question. Thus, we are able to see that there is no prima facie case for spelling out mala fides or want of public purpose, as suggested by the learned counsel appearing for the petitioners herein.

The copy of the plan, even though not authenticated, given along with the affidavit-in-reply clearly points out that only a strip of lands on the border line of the above said. survey numbers are sought to be temporarily acquired u/S. 35 of the Land Acquisition Act in order to reach LWAJ, i.e. the oil well Project. This strip of land, when compared to the previous acquisition by consent which now has been cancelled by paying compensation, is definitely in the straight line from the main road and the acquisition of this strip is very negligible when compared to the area of those survey numbers owned by the petitioners herein. Thus, we do not find any oblique motive or mala fide intentions as such prima facie made out to quash the proceedings. Sections 35 and 36 of the Land Acquisition Act are intended only for a temporary purpose and we do not think that such power exercised by the authorities concerned in this case in any way spells out oblique motive or mala fide intention.

The contention of the learned counsel that fertile lands are being acquired for the purpose of the road causing great hardship to the petitioners, also cannot be appreciated inasmuch as only a strip of land, and that too at the edge of the above said survey numbers, is being acquired temporarily for putting up the road.

Considering these facts, we have absolutely no hesitation in coming to the conclusion that the decisions cited by the learned counsel for the petitioners cannot have any application to the facts of the present case. It is not necessary for us to refer to the decision in the case of Daga Auto Service Pvt. Ltd. and Another Vs. The Land Acquisition Collector (Special Railway Cell), , which deals with a case wherein, in S. 5A enquiry, the Collector has not considered the alternative site available while making his report. Such a position has not arisen in this case; nor this case can be considered as the one which is akin to the case decided by the Calcutta High Court in the above decision.

In view of the above said discussion made by us, we do not find any merits in this Special Civil Application. Accordingly, this petition is rejected. There will be no order as to costs.

At this stage, Mr. Patel, learned counsel for the petitioners, states that he wants to take up the matter to the higher forum on the interpretation of S. 35 of the Land Acquisition Act and prays for the continuation of the stay which we have granted earlier at the time we issued the notice. Inasmuch as the acquisition is for temporary purpose and also for a public necessity and inasmuch as we have categorically held that there is neither oblique motive nor mala fide intention in doing so, we do not think that the stay granted can be extended any further in this case. Considering the necessity of public purpose involved in this case, the request for extension of interim relief granted already is refused.

Petition dismissed.