MAGANBHAI VANARSHIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The facts as they appear from the record are that S. Nos. 540/1 540 and 540/3 were in possession of the petitioner as a tenant and under the provisions of the Tenancy Act he had become a deemed purchaser of these lands in the year 1956. A notification under sec. 4 of The Land Acquisition Act (hereinafter referred to as the Act) was issued on July 21 1971 and several survey numbers which included the aforesaid 3 survey numbers were declared likely to be needed for public purpose namely for the construction of houses by the Gujarat Housing Board under the development scheme. A personal notice of this acquisition was issued to the petitioner on July 21 1971 but in the said notice S. No. 540 was not mentioned as the land which was to be acquired. The petitioner in pursuance of the acquisition notice served upon him filed his objections under sec. 5A of the Act raising many objections to the acquisition of the said two survey numbers. It was contended by the petitioner that the said two lands were situated near the city of Surat and were within the extended limits of the Municipal Corporation and therefore ought not to nave been acquired according to the policy decision taken by the Government. The petitioner also raised a contention that he had constructed a residential house and installed a water pump on the well in S. No. 540/2 and therefore the same should not have been acquired ill view of the Government policy not to acquire land on which residential houses were built. After receiving the report of the Land Acquisition Officer the Government issued notification under sec. 6 of the Act on August 3 1972 declaring that the Government was satisfied that the lands under acquisition were needed for public purpose for construction of houses by the Gujarat Housing Board. The notification under sec. 6 is challenged by the petitioner on various grounds but it is not necessary to mention all of them The pertinent grounds on which the notifications of acquisition under secs. 4 & 6 are challenged are:- (1) that in respect of S. No. 540/1 no personal notice of acquisition was served on the petitioner as required by rule I framed by the State Government under sec. 55 of the Act and therefore the acquisition of lands was illegal and invalid (2) that on S. No. 540/2 there is pacca house constructed by the petitioner if the year 1968 and the same is being used for residence of the petitioner and his family The Government has taken a policy decision not to acquire such lands having residential houses. In pursuance of this policy the Government had released S. No. 539 which was acquired under the impugned notification because residential house was being constructed thereon at the date of acquisition. Thus the action of the Government of acquiring the said land is contrary to the declared Government policy and thus violative of Art. 14 of the Constitution; and (3) that the acquisition of lands is contrary to the declared policy of the Government to the effect that in view of the shortage of residential accommodation in the City the lands of the persons who are constructing structures either by their own effort or by forming co-operative societies should not be acquired but lands at a distance of quarter or half a mile therefrom may be acquired. The acquisition of the lands of the petitioner therefore is in contravention of the declared policy of the Government and thus violative of Art. 14 of the Constitution.

(2.) Mr. N. M. Parmar section officer Revenue Department of the Government of Gujarat has filed an affidavit on behalf of the State Government contending that the notice in respect of acquisition of S. No. 540/1 was served on Shri Gajanand Dalpatbhai whose name appeared in the record of rights and who was the only interested person as per the said official record. It was contended that no notice of acquisition of S. No. 540/1 was necessary to be served on the petitioner as he was not the person having any interest in the land. It is further stated in the said affidavit that the Government at a certain stage did consider the situation and decided that land at S. No. 539 notified under sec. 6 of the Act should be withdrawn from such acquisition inasmuch as the said land had been used for constructing houses by the owner thereof and the construction work had been commenced prior to the issue and publication of the sec. 4 notification. The land of the petitioner at S. No. 540 is agricultural land and only farm-house was constructed thereon by the petitioner. The Government therefore did not consider it necessary to withdraw the said petitioners land from the acquisition. It is further stated in the affidavit that as the suit lands were surrounded by several buildings constructed by the Co-operative Housing Societies and therefore they were more suitable for the construction of the houses by the Gujarat Housing Board. The selection of the lands in dispute was for the public purpose and therefore the same is valid and legal.

(3.) We shall first take up the question of the acquisition of S. No. 540 There is no dispute that notice of acquisition in respect of the said land was not served on the petitioner as required by rule 1 of the rules framed under sec. 55 of the Land Acquisition Act. This Court in Ashokkumar Gordhanbhai v. State of Gujarat and others 10 G.L.R. 503 had to consider the provisions of the said rule 1 and the Court observed that all the persons in occupation about whose interest the Government in normal circumstances will be expected to know have to be given personal notice so that they can file their objections in respect of the acquisition. The affidavit filed on of the of the State Government indicates that no notice in respect of acquisition of the said land was given to the petitioner as his name did not appear in the record at the relevant time and because he was not Interested person in the land. Mr. M. B. Shah produced from his file record of rights pertaining to S. No. 540/1 to show that the occupier of the said survey number was one Gajanand Dalpatram. This record of rights are of the year 1968. Even in these record of rights the name of the petitioner is shown as a protected tenant and there is no dispute that a tenant is an interested person in the land. According in the entries in these record of rights a notice of acquisition ought to have been issued to the petitioner. But what is relevant is the record of rights of -the year 1970-71.The said year is relevant year because the acquisition notification under sec 4 of the Act was issued in that year. The record of rights of this year is also produced by Mr. M. B. Shah from the file on the perusal of which Mr. Parmar the Section Officer had filed his affidavit. In the entry in column of occupier the name of the petitioner is shown and name of Gajanand Dalpatram is no where mentioned therein. Therefore at the relevant time in the record of rights only the name of the petitioner as an occupier is shown and hence he was the person who was entitled to the notice of acquisition under sec. 4 of the Act. The statements made by the Section Officer are thus clearly false to his knowledge. He had in his affidavit made such statements which would clearly mislead the Court and prevent it from discharging its duty to do justice. This Court takes a very serious view of such conduct of the officer. It is most pertinent to note that neither the Special Land Acquisition Officer nor the Officer who decided not to release the lands in dispute from the acquisition has filed affidavit in this Court. The Government only filed affidavit of a mere Section Officer who after going through the record in accordance with his ability has given gloss to the facts after perusing the record and the material statements made by him in his affidavit are found by us to be false as per the documents produced in this Court from his record. At this stage we shall consider the validity of the practice which has developed in this Court. On behalf of the Government an affidavit in reply is usually filed by one of its officers but the document mentioned therein with reference to which such affidavit is filed are not produced with the result that the Court has to act upon the opinion of the Officer with regard to the correct meaning of the documents. In effect the Court _St has to act upon the secondary evidence. This practice is not in accordance with law which requires that primary evidence shall be produced in Court. If the Government wants to claim a privilege with regard to any document on which reliance is placed by the Officer who files the affidavit it may claim the same according to law but otherwise all the relevant documents must be filed along with the affidavits. If necessary documents are filed with the affidavit there would be no case in which injustice will result. The other side will have also a fair opportunity to know the correct facts of the case of the opponent. The aforesaid practice which is followed in this Court is contrary to law and leads to injustice. It must not be left to the Court or the opponent to call upon the Government to produce documents which are relied upon by the Officer filing the affidavit. For the aforesaid reason are deprecate this practice and require production and filing in Court all the relevant documents which are relied upon by the officer in the affidavit unless in respect of such documents or any one of them a privilege is claimed.