JETHALAL MOTILAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the learned Civil Judge, Senior Division, Narol dismissing the plaintiff's suit with costs.

(2.) The facts giving rise to this appeal briefly stated are as under:-The land bearing survey number 13 belonging to one Bai Kashi, widow of Nandlal Dalpatram situated in village Dani Limda beyond the municipal limits of the Ahemdabad city was acquired for the purpose of slums clearance under a notification, Ex. 26, published on 2-1-1958 in the Government Gazette under Section 4 of the Land Acquisition Act. The present plaintiff who asserted to the a lessee of about 3150 sq., yds., of land out of total area of 7502 sq., yds., comprised in the said survey number 13, was served with a notice, under Sections 9 and 10 of the Act. The plaintiff appeared before the special land acquisition officer and submitted that as he was a lessee of the land under acquisition and as he was not served with a notice under Section 4 of the Act individually, the notification under Section 6 of the Act was ultra vires and therefore, the land acquisition officer cannot proceed with the acquisition proceedings. Subject to his objections, however, the land acquisition officer awarded compensation to the owner as well as to the present plaintiff in certain proportion mentioned in the award. The present plaintiff, therefore, filed a suit for a declaration that the land acquisition proceedings were illegal and ultra vires and that his interest was not affected as no notice under Section 4 of the Act was individually served on him. This suit ultimately came to be registered as jurisdiction suit No.53 of 1957 and was heard and decided by the learned civil Judge. Senior Division, Narol. The State of Gujarat and the special land acquisition officer who were impleaded as defendants filed a written statement at Ex.18 and denied various averments made by the plaintiff in his suit. They denied that the plaintiff was in occupation of 3150 sq., yds., out of survey number 13 and that he had any interest therein. They also denied that the plaintiff was in occupation of the land as a lessee on the date of the notification published under S. 4 of the Act. They therefore contended that the inquiry held under Section 5-A was quite legal and that the notifications issued under Sections 4 and 6 of the Act were valid in law as the land was acquired for the purpose of slums clearance scheme. From the pleadings of the parties, the learned Judge framed issues at Ex 57 wherein issue No.1 was whether the notifications issued under Ss. 4 and 6 of the Land Acquisition Act are illegal and ultra vires. The learned Judge gave his finding on all the issues against the plaintiff. He particularly negatived the contention that the notifications under Section 4 and 6 of the Act were illegal and ultra vires. He therefore , dismissed the suit of the plaintiff with costs. Against the said judgment and decree of the trial court, the original plaintiff has preferred the present appeal to this court.

(3.) Mr. V.S. Parikh, learned Advocate for the appellant-plaintiff has raised several questions of law before us. He submitted that this court has already held in the case reported in (1969) 10 Guj LR 503 that in view of the rules framed under the Land Acquisition Act, it was mandatory for the Government to issue a notice individually on all persons interested in the land, under Section 4 of the Act and as no notice was individually served on the present plaintiff, the notification published under section 6 of the Act was ultra vires. He therefore, urged that in view of the decision of this court. It cannot now be urged by the Government that the notification was intra vires. Secondly, he urged that the land acquisition officer had already accepted the status of the plaintiff as a tenant of the land and had awarded compensation to him accordingly. It was not, therefore, open to the Government to urge that the plaintiff was not a tenant of the suit land on the date of the notification. Lastly, he urged that the land under acquisition was included in the proposed town planning scheme and therefore, it cannot be acquired by the Government for the purpose of slums clearance scheme.