SAIYAD ALUMUDDIN SAIYAD MOHMADKADRI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special Civil Application was filed in this Court on 26th March 1990 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 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 the original petitioner, namely, Saiyad Alumuddin Saiyad Mohamad Kadri, the sole Trustee and Vahivatkarta of Bavasidi Kabrastan Trust at Saiyadpura, Surat expired on 18th Nov.1994 and therefore, a Civil Application No.2031 of 1995 was moved seeking to bring one Shri Saiyadali Saiyad Illumudin Kadri on record who had become the new Trustee in place of the original petitioner. Mr.Shah submits that the papers of the aforesaid Civil Application No. 2031 of 1995 could not be made available by the Registry, but Mr.Shah submits that this Civil Application was allowed and this petition is now pursued by Saiyadali Saiyad Illumudin Kadri as the petitioner in his capacity as the new Trustee and Vahivatkarta of Bavasidi Kabrastan Trust at Saiyadpura, Surat. Initially, only the State of Gujarat and the Special Land Acquisition Officer were arrayed as respondents nos.1 and 2. Subsequently, on the basis of an order dated 15th April 1993 passed in Civil Application No.82 of 1993, the Director of Town Planning, Surat Municipal Corporation, Muglisara, Surat was also arrayed as respondent no.3.

(3.) The petition was filed by the original petitioner as Vahivatkarta and Trustee of Bavasidi Kabrastan Trust (Graveyard Trust), challenging the acquisition of the land bearing Nodh No.1198 admeasuring 698-54-01 sq.mtrs. of land situated at Ward No.8, Surat seeking appropriate writ, order or direction for quashing and setting aside the impugned notifications under Sec.4 and 6 of the Land Acquisition Act issued on 4th Dec.1987 and 24th Nov.1988 respectively by the respondent no.2, i.e. the Special Land Acquisition Officer, No.4, Bhagwant Chamber, Muglisara, Surat. The petitioner came with the case that the Trust known as Bavasidi Kabrastan Trust is being used for graveyard and there are other monuments 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 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 certain portion of this land was being occupied by the poor people by putting up construction thereon surrounding the plot and that it was a Muslim locality. It has also been stated that the Municipality had proposed to acquire the said land and the Municipal Corporation of Surat through their Councillors dominated by Bharatiya Janata Party (BJP) proposed to acquire the said land for the purpose of public school in the said land and thereupon the respondent no.2 issued the notifications under Sec.4 of the Act on 4th Dec.1987. A copy of this notification dated 4th Dec.1987 has been annexed with the petition as Exh.A. It has also been stated that the notice under Sec.4(1) was also served upon the petitioner calling upon him to file objections as provided under Sec.5-A against the proposed acquisition and that the acquisition was sought for the so called public purpose of constructing a municipal school. That the petitioner filed his objections and requested for personal hearing and invited the attention of the authorities by pointing out that it was being used for the purpose of graveyard and that there is Kabrastan on this land for last 200 years and if the said land is acquired, the religious feelings of the community will be hurt and that the acquisition was sought only with a view to hurt the feeling of the Muslim community residing in the said locality because the residents of this locality did not vote for the candidate of BJP. It is also given out that there was no need to have a school in the said area as there were more than ten schools in the said area. The petitioner has also enclosed a list of the schools situated in the said area as per Exh.B. It was pointed out that there were schools in the said locality and these schools are located within a short distance from each other and therefore, there is no need to have any more school in the said area. According to the petitioner, the land was in fact not required for a public purpose of the municipal school and only in the name of this public purpose the land of graveyard belonging to the Trust and the Muslim community was sought to be taken away. Yet, 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 and 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 report submitted by the authority to the respondent no.2 was 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 that 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. It was also stated that in some portion of this land, poor persons are residing and carrying on their business and if the land in question is acquired, such poor persons will lose their livelihood and they will be without any occupation and therefore a direction was sought against the respondents not to take the possession of the land in question on the basis of the notifications issued under Sec.4 and 6 of the Act. 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.