KANAIYALAL MANEKLAL CHINAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a petition for an appropriate direction order or writ for quashing and setting aside a notification dated 18th August 1961 purporting to acquire certain land belonging to the petitioners. The principal point involved in the petition raises a question as to the validity of sec. 3(4) of the Bombay Commissioners of Divisions Act 1957 (hereinafter referred to as the Commissioners Act) and two notifications issued by the State Government under that section one dated 5th September 1958 and the other dated 22nd September 1958 but there are also several subsidiary points taken in the petition and in order to understand and appreciate them it is necessary to set out the facts giving rise to the petition in some detail.

(2.) The petitioners are owners of a certain property known as China Baug bearing Survey Nos. 348B and 349 situate at Dariapur Kazipur Ahmedabad The said property is situate on the bank of the river Sabarmati and adjoins a vast area of open land appurtenant to the Water Works. The ashes of Mahatma Gandhi were immersed in the river Sabarmati at a spot near the said property. In or about the beginning of 1957 the Municipal Corporation conceived the idea of constructing a Samadhi on the bank of the river near the place where the ashes were immersed with a view to commemorating the solemn occasion of immersion and for that purpose it was suggested that a suitable spot should be selected on the bank of the river with sufficient open space around for holding and conducting prayer meetings. The subject was discussed between the City Engineer and the Municipal Corporation and also with certain persons connected with the activities of Mahatma Gandhi and according to the Municipal Corporation as a result of these discussions it was found that the site in the compound of the petitioners property would be most appropriate and suitable for the purpose. It appears that before the decision for selecting the site was reached the City Engineer and the Municipal Commissioner had discussion with the first petitioner and his father in regard to the site and in the course of that discussion the first petitioner intimated to the Municipal Commissioner that he would be only too willing to sell the land for such a laudable purpose as erection of a memorial to Mahatma Gandhi and requested the Municipal Commissioner to send him a layout plan showing the precise land which the Municipal Commissioner had in view for erection of the memorial. No such layout plan was however sent by the Municipal Commissioner to the petitioners and without any further discussions or negotiations a proposal was put forward by the Municipal Commissioner before the Standing Committee for acquisition of land admeasuring 3 922 square yards 8 square feet out of Survey Nos. 348B and 349 for the purpose of erecting a memorial to Mahatma Gandhi. The price of the land was worked out at about Rs. 6 per square yard and the total cost of the proposed acquisition was estimated at Rs 31 380 nP. The Standing Committee by a resolution dated 9th October 1956 accepted the proposal and recommended to the Municipal Corporation that land admeasuring 3 922 square yards and 8 square feet out of Survey No. 348B and 349 should be acquired for the purpose of erecting a memorial to Mahatma Gandhi at a total cost of Rs. 31 380 and that appropriate proceedings should be taken for acquiring the said land under the provisions of the Land Acquisition Act 1894 The proposal of the Standing Committee was to be considered at a general meeting of the Municipal Corporation to be held on 1st December 1958 and on reading the agenda of the general meeting the first petitioner carne to know that the Municipal Commissioner was going ahead with the acquisition of the petitioners land and had already obtained the authority of the Standing Committee in that behalf. The first petitioner therefore addressed a letter dated 27th November 1958 to the Municipal Commissioner pointing out the aforesaid facts and expressing surprise that instead of sending a layout plan to the petitioners and communicating with them in regard to the purchase of the land by agreement the Municipal Commissioner had gone ahead and proceeded to obtain the authority of the Standing Committee to acquire the land and that too without giving them a layout plan of the land. The petitioner also pointed out that he was astonished to learn that the Municipal Commissioner had estimated the total cost of the land at such a ridiculously low price of Rs. 31 380 nP. which worked out on the basis of the area of the land being 3 922 square yards and 8 square feet at an absurd price of less than Rs. 8 per square yard considerably below the prevailing market price of the land. The first petitioner accordingly requested the Municipal Commissioner to defer consideration of the proposal for acquisition of the land and to settle the matter by negotiation between the parties. No reply was sent to this letter nor was the request contained in it acceded to and the Municipal Corporation passed a resolution sanctioning the recommendation contained in the resolution of the Standing Committee dated 9th October 1958. Pursuant to the resolution the Municipal Corporation moved the State Government and the Commissioner Ahmedabad Division issued a notification dated 2nd September 1959 under sec. 4 of the Land Acquisition Act 1894 notifying that the land specified in the Schedule is likely to be needed for a public purpose namely the memorial of Rashtrapita Mahatma Gandhiji. The land specified in the Schedule to the notification was approximately 3 428 square yards 3 square feet out of Survey No. 348B and 494 square yards 5 square feet out of Survey No. 349. An inquiry under sec. 5A was thereafter held by the Collector as the Special Land Acquisition Officer to inquire into the objections filed by persons interested in the land. The petitioners filed their objections against the proposed acquisition of the land and the objections were inquired into by the Collector at this inquiry. In the meantime the State of Bombay was bifurcated into the States of Maharashtra and Gujarat and the land which formed the subject matter of the notification under sec. 4 came within the State of Gujarat. Thereafter on 16th March 1961 an agreement was entered into between the State Government and the Municipal Corporation in connection with the proposed acquisition of the land and under the agreement the Municipal Corporation bound itself to pay to the State Government the cost of acquisition and all such charges together with the cost of establishment as might be incurred by the State Government or by any Officer of the State Government in respect of the acquisition. This was followed by the issue of a notification dated 18th August 1961 by the Commissioner Baroda Division under sec. 6 of the Land Acquisition Act 1894 Since some reliance was placed on behalf of the petitioners on the contents of the notification for the purpose of making out a case of non-application of mind on the part of the Commissioner Baroda Division it will be desirable to reproduce the relevant portion of the notification. The notification in its material part was in the following terms :-

(3.) The main ground on which the validity of the notification was impugned was that the Commissioner Baroda Division who issued the notification had no authority to issue it. This argument involves a consideration of the provisions of the Commissioners Act and it will therefore be convenient at this stage to notice the relevant provisions of that Act. Sec. 1 gives the title of the Act and provides that the Act extends to the whole of the State of Bombay and it shall come into force on such date as the State Government may by notification in the Official Gazette appoint. The State Government accordingly by a notification fixed 3rd March 1958 as the date on which the Act shall come into force. Sec. 2 defines certain terms and expressions used in the Act and the only definition to which it is necessary to refer for the purpose of the present petition is the definition of Commissioner in Clause (a) of sec. 2. That clause defines Commissioner to mean the Commissioner of a division appointed under the jaw relating to land revenue as amended by the Schedule to the Act. Then comes sec. 3 which is a very important section and though only sub-sec. (4) of that section has been impugned as suffering from the vice of excessive delegation it is necessary to examine closely the other sub-sections of that section since they have a considerable bearing on the issue of the validity of sub-sec. (4). We will therefore reproduce the whole of sec. 3 which is in the following terms:-