GULAMMOHMAD A LAKHADAWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special Civil Application was filed in this Court on 9th April 1990 by the occupant on the land bearing Nondh No.1198 admeasuring 698-54-01 sq.mtrs. situated at Ward No.8, Surat, for quashing the notifications issued under Sec.4 and 6 of the Land Acquisition Act and to direct the respondents not to dispossess the petitioner from the lands in question and seeking a declaration that the provisions of Sec.4 and 6 of the Land Acquisition Act are ultra-vires and violative of the provisions of Articles 13, 23, 25 and 26 of the Constitution of India. So far as the challenge to the validity of the provisions of Sec.4 and 6 of the Land Acquisition Act are concerned, the same are not pressed by learned Counsel for the petitioner at the time of arguments. Even otherwise, there is no substance in the challenge to the validity of these provisions.

(2.) It is given out by Mr.R.N.Shah that initially, one Shri Saiyad Alimuddin Saiyad Mohamad Kadri, Sole Trustee, and Vahivatkarta of Bavasidi Kabrastan Trust, at Saiyadpura, Surat was the respondent no.3, but said respondent no.3 expired on 18th Nov.1994. Learned Counsel submits that Civil Application No.2025 of 1995 was filed seeking to substitute the name of said respondent no.3 by new Trustee and such Civil Application was allowed. Mr.Shah submits that the papers of the aforesaid Civil Application No. 2025 of 1995 could not be made available by the Registry.

(3.) The petitioner came with the case that the land in question bearing Nondh No.1198 admeasuring 698-54-01 situated at Ward No.8, Surat, of the Trust known as Bavasidi Kabrastan Trust is being used for graveyard and there are other monuments and tombs thereon. According to the petitioner, most of the portion was being occupied for the purpose of Kabrastan and the people residing in the said area also used to come for worship as there are some ancestral tombs which are more than 200 years old and that the people have faith in the said tombs and that if the said land is acquired, it will affect their rights guaranteed under Articles 25 and 26 of the Constitution of India. It is also the case of the petitioner that in a small portion of the said land which is not being used for the purpose of tomb, he is occupying the same as tenant by carrying on his business of Charcoal and fire woods and the income from the said shop is the only source of his livelihood for maintaining himself and his family members. It is stated by the petitioner that the land which is used for graveyard belongs to Kabrastan and it is being registered as Public Trust and its registration number is Surat-B-502 and that the petitioner is a beneficiary of the said Trust and also he being a Muslim, the rights guaranteed under Articles 25 and 26 are being infringed upon and therefore, he made a request to the respondent no.2 not to acquire the said land and to cancel the acquisition proceedings. It has been stated that it was pointed out that Kabrastan and Masjid are one and same on the religious pont of view and that the lands belong to their Masjid and Kabrastan and it cannot be acquired and even the Government has laid down the guidelines not to acquire the graveyard or any religious place of any community. It was also pointed out that it is an ancestral property and it is being registered in the office of the Charity Commissioner and it cannot be acquired without serving any notice to the Charity Commissioner and that the land in question cannot be acquired for the purpose of school by the Municipal Corporation as the same being a Kabrastan and as per the guidelines issued by the Government, it is exempted from any acquisition under the provisions of the Land Acquisition Act. It has been stated that inspite of the aforesaid being were brought to the notice of the authorities, on account of rivalry in an election between the candidates of different political parties inclusive of Bharatiya Janata Party (BJP) the acquisition has been made. It was also pointed out that there was no need to have a school in the said area as there are more than 10 schools in the said area. It is stated that inspite of the aforesaid facts and without giving personal hearing to the petitioner as provided under Sec.5-A and even without notice under Sec.4(1), the notification under Sec.6 was issued on 24th Nov.1988. That thereupon a representation was made and the petitioner was made to understand that the proceedings will be dropped, but somehow or other, the Municipal Corporation insisted for the said proceedings and the petitioner has no other alternative but to approach the High Court by way of filing the present petition under Article 226 of the Constitution of India. A copy of this notification dated 4th Dec.1987 has been annexed with the petition as Exh.A. It has been stated that without giving any personal hearing to the petitioner, the notification under Sec.6 was issued on 24th Nov.1988. The petitioner then made a representation but the Municipal Corporation did not drop the proceedings and the petitioner had to prefer the present Special Civil Application. The petitioner then states that the notification under Sec.4 was issued on 4th Dec.1987 but the substance thereof was not affixed at conspicuous places in accordance with law, the requirement under Sec.4 was not fulfilled, the proposal to acquire the said land was malafide as stated above on account of non-voting for the BJP candidate by the residents of the said locality who belonged to Muslim community and that it was only to take revenge on them that the proposal was made for acquiring the said land under the guise of public purpose for constructing municipal school. It was further stated that no permission had been granted for opening the new school and the residents of the locality were only sought to be harassed, that no opportunity of personal hearing was granted nor the reports submitted by the authority to the respondent no.2 were made available to the petitioner and in fact no hearing was given and without application of mind as to whether the land was in fact required for the public purpose or not, the notification under Sec.6 was also issued. It was then stated that the land which was used as a graveyard had many monuments which were required to be preserved under the provisions of the Monuments Preservation Act, 1904 and under the provisions of the Ancient Monuments and Archeological Sites and Remain Act, 1958. The breach of the provisions of Sec.10 of the Ancient Monuments and Archeological Sites and Remain Act, 1958 was pleaded and it was also stated that the action of the respondents violates the provisions of Article 13 of the Constitution of India and thereby affects the fundamental rights guaranteed under the Constitution of India. It was also pleaded that the Collector had no jurisdiction to declare the land in question to be necessary for the public purpose of constructing a school by acquiring the said land. It was also stated that the acquisition sought by the issuance of the notification under Sec.4 and 6 was colourable exercise of the powers, malafide and infringes upon the fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India. That it was not open for the respondents to interfere with the petitioner's rights by acquiring the said land in question. The impugned notifications were assailed to be ex-facie illegal and contrary to the provisions of the Act, and violative of Articles 23, 25, and 26 of the Constitution of India. The Municipal Corporation had proposed to acquire certain lands in 1979 also for the purpose of public school and having realised that there was reservation against the acquisition of land bearing No.1076 to 1080 situated at Ambaji Surat Road for the purpose of school, the same was released while the proceedings for acquisition of land in question were not dropped. On these facts, violation of Article 14 of the Constitution of India has been pleaded and that the action of the respondents was discriminatory and was required to be set aside. On these averments, the petition was filed and the direction was sought for quashing and setting aside the notifications issued under Sec.4 and 6 of the Land Acquisition Act and a direction was sought against the respondents not to dispossess the petitioner from the land in question.