PANDYA BHIKHBHAI MANILAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By filing the instant petition under Article 226 of the Constitution, the petitioners have prayed to set aside the proceedings initiated by the State Government to acquire the land bearing Survey No. 929 of Village: Vanch, Taluka: Dascroi, District: Ahmedabad, for the public purpose of construction of Dascroi Branch tail distributory called Gatrad-Vanch Minor under the Narmada Project. The petitioners have further prayed to direct the State Government to alter the position of Dascroi Branch tail distributory so as not to affect Survey No. 929 of Village: Vanch, Taluka: Dascroi, District: Ahmedabad, and the public road on which it is abutting so that the petitioners can have approach to Modeshwari Rice Mills which is constructed by them on the land bearing Survey No. 929 of Village: Vanch. In the alternative, the petitioners have prayed to direct the Governmental authorities to provide alternative public way so that they can have access to Modeshwari Rice Mills situated on Survey No. 929 of Village: Vanch.

(2.) The petitioners are the owners of land bearing Survey No. 929 of Village: Vanch, Taluka: Dascroi, District: Ahmedabad. According to them, they were desirous of using the land for industrial purpose. Therefore, they applied for necessary permission under Section 65 of the Bombay Land Revenue Code, 1879. It is the case of the petitioners that the permission, as prayed for, was granted and they have put up a Rice Mill known as Modeshwari Rice Mills on Survey No. 929 of Village: Vanch. According to the petitioners, it was proposed to acquire Survey No. 929 for the purpose of laying tail distributory canal called Gatrad-Vanch Minor, and therefore, necessary proposal was forwarded to the State Government. The petitioners have claimed that originally, the tail distributory was not to be laid through Survey No. 929 but was to be laid through other survey numbers but for the reasons best known to the respondent-authorities, some change was made in the location of the distributory and it was decided to lay the said distributory through Survey No. 929 of the petitioners, which is illegal. The grievance made by the petitioners is that due to the proposed acquisition, the Rice Mill of the petitioners would be required to be closed down because the public way on which the Rice Mills is abutting is itself being utilized for the purpose of construction of canal and there is no alternative way available for going to the petitioners' Rice Mills. It is averred by the petitioners that heavy vehicles and tractors are required to go in and out of the Rice Mills but if the canal is laid as proposed, no space would be left out for loading and unloading of the tractors and trucks which will result in closure of the Rice Mills. The petitioners have mentioned that a representation dated May 19, 2006, was made to the respondent-authorities with a request to lay canal at a distance away from Survey No. 929 so that the petitioners may not suffer huge loss of their property and business but the said representation is not considered by the respondents at all. Under the circumstances, the petitioners have filed the instant petition and claimed reliefs to which reference is made earlier.

(3.) On service of notice, Mr. Manojkumar Haridatt Gajre, Special Land Acquisition Officer, Narmada Unit No. 10, having his office at Block No. C/3, 2nd Floor, Narmada Vasahat, Ahmedabad, has filed affidavit-in-reply controverting the averments made in the petition. It is mentioned in the said reply that the alignment of Gatrad-Vanch Minor was decided and approved by the competent authority after considering its technical feasibility and thereafter acquisition proceedings were initiated. What is mentioned in the reply is that Notification under Section 4 of the Land Acquisition Act, 1894 (the Act for short) was issued which was published in the official gazette on September 1, 2006, after which, necessary inquiry under Section 5 of the Act was made. It is pointed out that on the basis of the report submitted by the Special Land Acquisition Officer under Section 5A(2) of the Act, a declaration under Section 6 of the Act was made which was published in the official gazette on January 7, 2006, and thereafter, notices under Section 9 of the Act were issued to the interested persons for the purpose of determining the market value of the lands acquired. What is mentioned in the reply is that the approved alignment was never changed at any time and that there is no Government land for public way between Survey Nos. 929 and 846. According to Mr. Manojkumar Haridatt Gajre, the petitioners were using way from Survey No. 846 to reach their Survey No. 929 at the time when it was proposed to acquire Survey No. 929 and as the petitioners have right of easement of way through Survey No. 846, which is not going to be disturbed because of the proposed acquisition, the instant petition should not be entertained. It is mentioned in the reply that necessary canal crossing also will be provided as per the norms and therefore, the contention of the petitioners that they have no other alternative way for going to their Rice Mills being not correct should not be accepted by the Court. It is further stated in the reply that on receipt of representation dated May 19, 2006, for changing the alignment of the canal, a site visit was carried out on June 19, 2006, in the presence of the petitioners, where it was explained to them that there is no alternative technically feasible alignment available. It is stated in the reply that the turning of alignment of canal in Survey No. 846 is not possible as per the demand made by the petitioners and as the petition involves disputed questions of fact, the same should not be entertained.