LALLUBHAI SHAMJIBHAI GHELANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY filing the instant petition under Article 226 of the Constitution of India, the petitioner has prayed to issue a writ of mandamus or any other appropriate writ or order to quash notification dated August 28, 2003 issued under Section 4(1) of the Land Acquisition Act, 1894 ("the Act" for short), which was published in the Gujarati Daily "Saurashtra Samachar" dated September 5, 2003 by which it was declared that Survey Nos.192/1 Paiki and 192/2 Paiki situate at Village: Budhel, Taluka: Bhavnagar, District: Bhavnagar were likely to be needed for the public purpose namely for Gujarat Water Supply & Sewerage Board Bhavnagar's Sardar Sarovar Canal based Drinking Water Supply Project. The petitioner has further prayed to set aside declaration made under Section 6 of the Act, which was published in the Gujarat Government Gazette Extraordinary on September 3, 2004 declaring that the lands mentioned therein are needed to be acquired for the public purpose namely for Gujarat Water Supply & Sewerage Board Bhavnagar's Sardar Sarovar Canal based Drinking Water Supply Project. The petitioner has also prayed to issue a writ of mandamus declaring that as the award under Section 11 of the Act was not made within a period of two years from the date of declaration made under Section 6 of the Act, the acquisition proceedings have lapsed in terms of Section 11 -A of the Act.

(2.) THE petitioner is one of the co -owners of the lands bearing Survey Nos.192/1 Paiki 1, 192/1 Paiki 2, 192/1 Paiki 3, 192/2 Paiki 1 and 192/2 Paiki 2 situate at Village Budhel, Taluka: Bhavnagar, District: Bhavnagar. A proposal was received by the State Government to acquire the above mentioned lands for the public purpose namely for Gujarat Water Supply and Sewerage Board Bhavnagar's Sardar Sarovar Canal based Drinking Water Supply Project. On perusal of the same, the State Government was satisfied that the above mentioned lands were likely to be needed for the said public purpose. Therefore, a notification under Section 4(1) of the Act was issued, which was published in the official gazette on August 28, 2003. Thereafter, the petitioner was served with the notice as contemplated by Section 4 of the Act. On receipt of the notice, the petitioner lodged his objections on October 3, 2003. The Special Land Acquisition Officer took into consideration the objections lodged by the petitioner and forwarded his report under Section 5 -A(2) of the Act to the State Government. On scrutiny of the said report, the State Government was satisfied that the lands specified in the notification, which was published in the official gazette under Section 4(1) of the Act were needed to be acquired for the public purpose namely for Gujarat Water Supply and Sewerage Board Bhavnagar's Sardar Sarovar Canal based Drinking Water Supply Project. Therefore, the State Government made a declaration under Section 6 of the Act, which was published in the official gazette on September 3, 2004. The petitioner was thereafter served with the notice dated December 16, 2004 under Section 9 of the Act for determination of compensation payable to him. The petitioner was accorded hearing on January 11, 2005. On that day, he also filed his objections to the notice dated December 16, 2004. Ultimately, the Special Land Acquisition Officer made his award under Section 11 of the Act on September 13, 2006. After making of the award, the petitioner was served with notice dated January 9, 2007 under Section 12(2) of the Act, which was received by him on January 20, 2007. The case of the petitioner is that the Special Land Acquisition Officer failed to make an award under Section 11 of the Act within a period of two years from the date of declaration made under Section 6 of the Act and, therefore, the entire proceedings for the acquisition of the lands in question should be treated as having lapsed. According to the petitioner, the government lands are situated adjoining the lands, which are sought to be acquired, and as the Government lands can be used for the purpose of Drinking Water Supply Project undertaken by the respondents, the acquisition of the lands in question should be regarded as illegal. What is claimed is that as the acquisition of the lands in question is arbitrary, discriminatory and violative of fundamental rights guaranteed to the petitioner under Article 19 of the Constitution, the same should be set aside. Under the circumstances, the petitioner has filed the instant petition and claimed the reliefs to which reference is made earlier.

(3.) ON service of notice, Mr.Manoj Makwana, who is Special Land Acquisition Officer, Bhavnagar, has filed affidavit -in -reply on behalf of the respondent No.3 controverting the averments made in the petition. What is mentioned in the reply is that declaration made under Section 6 of the Act was published in Gujarati Daily 'Saurashtra Samachar' on September 13, 2004 whereas public notice of the substance of the declaration was given at convenient places in the said locality on September 14, 2004 and, therefore, the award made under Section 11 of the Act on September 13, 2006 cannot be construed to have been made after a period of two years from the date of publication of declaration made under Section 6 of the Act. Mr.Ashok Mehta, Special Land Acquisition Officer, Bhavnagar, has filed further affidavit -in -reply on behalf of the respondent No.3 on March 2, 2007 mentioning, inter alia, that no government land is situated adjoining to the lands acquired and, therefore, it is not correct to say that the government land can be utilized for the purpose of establishing Water Supply Project undertaken by the respondents. In support of this averment, the deponent has produced a copy of the map of Village: Budhel at Annexure -I to the reply. What is mentioned by Mr.Mehta in his reply affidavit is that the land bearing Survey No.215/3 shown in green colour in the map was government land adjoining to the land of the petitioner, but the same was allotted to the Gujarat Water Infrastructure Limited by the Collector, Bhavnagar, vide order dated January 18, 2002 for the purpose of constructing necessary infrastructures to supply water to the town and village of Bhavnagar District and, therefore, it is not correct to say that the vacant government land adjoining to the lands acquired is available for the purpose for which the lands of the petitioner are acquired. It is further mentioned in the said reply that the possession of the land bearing Survey No.215/3 was handed over to the Gujarat Water Infrastructure Limited on ad hoc basis on February 20, 2002 after which the Gujarat Water Infrastructure Limited has constructed Pump -Houses, etc. on the said land. In support of this averment, Mr.Mehta has produced a copy of the order dated January 18, 2002 at Annexure -II with his reply. It is also stated in the reply that the Government of Gujarat by order dated December 22, 2006 has granted sanction to the allotment of land bearing Survey No.215/3 to the Gujarat Water Infrastructure Limited, made by the Collector, Bhavnagar, and in support of this averment, order dated December 22, 2006 is produced at Annexure -III to the reply.