STATE OF GUJARAT Vs. DASHARATHLAL FAKIRBHAI

JUDGEMENT

(1.) This judgment will dispose of two cross appeals arising out of the judgment rendered by the learned Civil Judge (Senior Division) Ahmedabad (Rural) at Narol in jurisdiction civil suit No. 52 of 1967 on 30th November 1967. The two appeals are First Appeal No. 1062 of 1968 by the State and the Special Land Acquisition Officer who were original defendants and First Appeal No. 1063 of 1968 by the original plaintiff. Both the sides have filed the appeals because the Trial Court has decreed the suit partly and both the sides feel aggrieved to the extent they have failed.

(2.) The main controversy in the suit centres around the validity of the notification under sec. 4 of the Land Acquisition Act (hereinafter referred to as the Act) issued by the competent authority for the purpose of acquiring the land belonging to the plaintiff admeasuring 5 acres and 39 gunthas comprised in S. No. 9 of village Dani Limda situated beyond the limits of the Municipal Corporation of Ahmedabad on December 19 1957 The urgency clause under sec. 17(4) of the Act was applied and inquiry under sec. 5(A) of the Act was dispensed with. The said notification under sec. 4 was followed by the consequential notification under sec. 6 of the Act which was issued on August 5 1958 The validity of both these notifications was called into question by the plaintiff in the suit giving rise to the present appeals instituted on September 22 1961 in the Court of the Civil Judge (Senior Division) at Ahmedabad. The acquisition was for a public purpose namely slum clearance housing and roads. It is rather unfortunate that a dispute concerning lands which were notified for acquisition for a purpose of such urgency has remained unresolved for as many as 12 years till now.

(3.) The impugned notification under sec. 4 was challenged on numerous grounds. We will however refer to only such grounds as have been pressed upon us in the course of the present appeals. The challenge to the notification is mainly based on the ground that the urgency clause under sec. 17(4) of the Act has been wrongly applied notwithstanding the fact that the land in question in the submission of the plaintiff is neither waste land nor arable land. The Trial Court upheld the contention and came to the conclusion that the impugned notification under sec. 4 in 60 far as it applied the urgency clause under sec. 17(4) of the Act and dispensed with the inquiry under sec. 5(A) of the Act was liable to be struck down. The learned Trial Judge was however of the opinion that the vulnerable portion of sec. 4 was separable from the impugned notification under sec. 4 and therefore the notification in its entirety was not liable to be struck down. In this view of the matter he decreed the plaintiffs suit partly and granted a declaration that that part of the impugned notification under sec. 4 whereby the urgency clause was applied and the inquiry under sec. 5(A) was dispensed was illegal. He however sustained the validity of the rest of the notification. In view of the fact that the notification under sec. 6 was issued without holding the inquiry under sec. 5(A) of the Act having regard to the fact that the inquiry was dispensed with under sec. 17(4) of the Act the learned Trial Judge invalidated the said consequential notification under sec. 6 as well. The plaintiff has preferred the present appeal by reason of the fact that the rest of the notification under sec. 4 barring the clause dispensing with the inquiry under sec. 5(A) has been upheld and sustained. In other words the plaintiff has approached this Court praying that the entire notification under sec. 4 should be struck down on the premise that the vulnerable portion is not separable from the rest of the notification and that the notification must stand or fall in its entirety. The State on the other hand has filed the cross appeal with the end in view to challenge the finding of the learned Trial Judge that the urgency clause was wrongly applied and that the notification under sec. 4 to the extent that it dispensed with the inquiry under sec. 5(A) was invalid as also in order to challenge the finding that the notification under sec. 6 was on that account rendered invalid.