BIHARILAL KANAIYALAL DR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is directed against a notification dated 10 August 1964 issued under sec. 4 and a corresponding notification dated 14th October 1965 issued under sec. 6 of the Land Acquisition Act 1894 The facts giving rise to this petition are a little material and we will. therefore have to state there in some fullness. This petition concerns five pieces of land namely survey Nos. 933 934 935 942 and 944 situate in village Vatva Taluka Deskroi District Ahmedabad. Survey Nos. 933 and 944 belonged to respondents Nos. 4 to 6 and by an agreement to purchase dated 1st October 1960 the third respondent agreed to purchase the said survey numbers from respondents No. 4 to 6. Though the agreement of purchase was entered into in the name of third respondent the petitioner was beneficially entitled to the same and he was the party who was going to purchase the said survey numbers under the agreement of purchase. The petitioner paid Rs. 8000.00 as earnest money on the execution of the agreement of purchase and subsequently on 9th May 1964 he paid a further sum of Rs. 4000.00 in advance towards part payment of the purchase price in anticipation of the delivery of the said survey numbers. The time for completion of the sale as originally stipulated in the agreement of purchase was extended from time to time upto 31st December 1964 but the sale could not be completed owing to litigation amongst respondents Nos. 4 to 6 and an interim stay order granted by the Court in that litigation. The petitioner also entered into an agreement of purchase dated 24th May 1961 for purchase of survey Nos. 935 and 942 from respondent No. 7. He paid a sum of Rs. 6501.00 on the execution of the agreement of purchase and subsequently paid a further sum of Rs. 13 500 towards part payment of the purchase price in anticipation of the delivery of the said survey numbers. The time for completion of the sale under this agreement of purchase was also extended from time to time but the sale could not be completed because the City Deputy Collector by an order dated 28th October 1964 refused permission for sale on the ground that according to the detailed development plan prepared by the Gujarat industrial Development Corporation (hereinafter referred to as the Corporation) large part of the land comprised in the said survey numbers was reserved for railway siding. So far as survey No. 944 is concerned it belonged to respondent No. 8 and the third respondent by an agreement made with respondent No. 8 agreed to take the said survey number on lease for a term of ninety nine years. This agreement of lease was also like the first agreement of purchase entered into by the third respondent for the benefit of the petitioner and the petitioner was beneficially entitled to the same A sum of Rs. 2161.00 was paid by the petitioner to respondent No. 8 under the agreement of lease but respondent No. 8 did not execute a deed of lease in favour of the petitioner as provided by the agreement and proceedings had therefore to be adopted by the petitioner for enforcing specific performance of the agreement against respondent No. 80 These proceedings were pending in the District Court at the date when the petition came to be filed.

(2.) The genesis of the filing of the petition was the issue of a notification dated 10th August 1964 under sec. 4 of the Act. By this notification the State Government notified that various pieces of land including survey numbers 933 934 935 942 and 944 were likely to be needed for a public purpose namely establishment of industrial town for heavy and medium industries. It appears that these survey numbers were sought to be acquired by the State Government at the instance of the Corporation with a view to placing them at the disposal of the Corporation under sec. 32 of the Gujarat Industrial Development Corporation Act 1962 (hereinafter referred to as the Corporations Act) and the petitioner therefore carried on correspondence with the Corporation in an attempt to persuade the Corporation not to press for acquisition of these survey numbers in which the petitioner was interested. The correspondence according to the petitioner resulted in an agreement between the petitioner and the Corporation whereby on certain terms and conditions which were recorded in the correspondence the Corporation agreed that the said survey numbers may be purchased by the petitioner and they may not be acquired by the State Government. But despite this agreement between the petitioner and the Corporation the State Government issued a notification dated 14th October 1965 under sec. 6 of the Act declaring that several pieces of land including the said survey numbers were needed for the public purpose specified in column 4 of the Schedule namely establishing industrial town for large and medium industries. The petitioner thereupon filed the present petition challenging the validity of both secs. 4 and 6 notifications.

(3.) At the commencement of the hearing before us the learned Advocate General appearing on behalf of respondents Nos. 1 and 2 raised a preliminary objection against the maintainability of the petition and his argument was that the petitioner had no title to maintain the petition. He urged that the petitioner merely held an agreement of purchase in respect of Survey Nos. 933 934 935 and 942 which did not give the petitioner any legal interest in the said survey numbers and so far as survey No. 944 was concerned the petitioner held only an agreement of lease and was not even put in possession of the said survey number and the petitioner had therefore no locus to challenge the acquision of these survey numbers. This preliminary objection is in our opinion not well-founded and there are at least two answers which can be effectively given against it. In the first place so far at least as survey Nos. 933 934 935 and 942 are concerned the petitioner has a statutory charge on the said survey number for the amounts of purchase money paid by him to the respective sellers in anticipation of the delivery of the said survey numbers. This statutory charge is created by sec. 55(6)(b) of the Transfer of Property Act which provides: 55 In the absence of a contract to the contrary...