M.R. Shah, J.@mdashBy way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, order and/or direction quashing and setting aside the Notification issued by the respondents u/s 6 of the Land Acquisition Act (''the Act'' for short) dtd.30/8/2005 in so far as the land of the petitioners bearing Revenue Survey No. 254 of village Sola, Taluka Daskroi, District ; Ahmedabad, area admeasuring 5733 sq.mtrs.
2. At the outset, it is required to be noted that by way of impugned notification, the lands of ten land owners, inclusive of the petitioners'' land, admeasuring 62,000 sq.mtrs., are acquired for the expansion of the existing Gujarat High Court complex as well as for providing other facilities and for the construction of building for various authorities like Gujarat State Judicial Academy, Gujarat State Legal Service Authority, High Court Legal Aid Services Committee and the petitioners'' land is admeasuring 5733 sq.mtrs. only out of total 62,000 sq.mtrs. of land be acquired. It is also required to be noted that Section 4 Notification came to be published on 17/8/2004 and thereafter Section 6 Notification has been published on 30/8/2005 and even the possession of all the lands for which Notification u/s 6 of the Act has been published (inclusive of the petitioners'' land), is already taken over by the competent authority and handed over to the High Court administration and not only that even Award u/s 11 of the Act, after following due procedure as required u/s 9 of the Act is also declared by the Special Land Acquisition Officer long back and except the petitioners, all other land owners have accepted the compensation and having not satisfied with the quantum of compensation, have submitted References u/s 18 of the Act. It is also required to be noted that even the petitioners have also submitted Reference Application u/s 18 of the Act under protest.
3. The petitioners were owners of the land bearing Revenue Survey No. 254 admeasuring 5733 sq.mtrs. which is just adjacent to the present High Court complex. It appears that facing difficulties in respect of shortage of Court Rooms, Chambers for the Judges, Central Library, Parking Facilities, Administrative Block, Committee Room, Storage Room, Auditorium, building for Gujarat State Judicial Academy, Chambers for Advocates, building for Gujarat State Legal Service Authority, building for High Court Legal Aid Services Committee etc. and for future expansion of the High Court, the Standing Committee of the Gujarat High Court, headed by the Hon''ble the Chief Justice, took up the issue of expansion of the High Court complex in its meeting held on 19/4/2001 and after due deliberation, resolved that the State Government be requested to acquire the lands which are adjacent to the existing High Court complex. By letter dtd.4/5/2001, High Court sent proposal to the State Government for acquisition of the certain lands inclusive of the petitioners'' land pointing the necessity for expansion of the existing High Court Complex. Vide letter dtd.19/2/2002, the State Government conveyed its administrative approval for acquisition of land admeasuring 61,816 sq.mtrs. It appears that vide letter dtd.18/12/2003 additional proposal was sent by the High Court for acquisition of the additional land on the Western side of the existing High Court complex. It appears from the proceedings and the pleadings that the State Government on 9/2/2004 appointed a high level committee comprising of the Principal Secretary-Finance Department, Secretary-Legal Department, Secretary-Road and Building Department and Registrar General of High Court of Gujarat, for monitoring expansion of the High Court complex. The said committee was to function under the guidance of the Hon''ble the Chief Justice. That thereafter, having satisfied with respect to the need of land for the expansion of the High Court Complex as per proposal made by the High Court dtd.4/5/2001 and additional proposal dtd.18/12/2003, Notification u/s 4 of the Act was issued on 17/8/2004, whereby the Collector, Ahmedabad declared his intention that the land in question and other lands mentioned in the Notification are needed for public purpose for expansion of the existing High Court. The petitioners submitted provisional objections dtd.13/9/2004 to the District Collector, Land Acquisition Branch. Over and above objecting to the acquisition of the land in question, the petitioners also sought some material and information with respect to the acquisition proceedings. By reply dtd.23/9/2004, the petitioners were informed by the then Additional Special Land Acquisition Officer, Ahmedabad that till 13/9/2004 notice u/s 4(1) of the Act has not been issued and after notice u/s 4(1) of the Act is issued, the petitioners can submit their objections u/s 5A of the Act before the Competent Authority. That thereafter, notice u/s 4(1) of the Act was issued on 27/8/2004 calling upon the interested persons to submit their objections before the Special Land Acquisition Officer on or before 26/10/2004. It also appears from the said notice u/s 4(1) that it was so stated in the said notice u/s 4(1) of the Act that a personal hearing would be afforded to the interested parties who submits the objections on 26/10/2004. Being aggrieved by and dissatisfied with the communication dtd.23/9/2004, the petitioners preferred Special Civil Application No. 13153 of 2004 before this Court for appropriate writ, order and/or direction directing the respondents of the said petition i.e. the District Collector, Ahmedabad and Special Land Acquisition Officer, Ahmedabad to supply all the materials which the respondents have collected for forming an opinion for issuance of the notification u/s 4 of the Act. It was also further prayed in the said petition to direct the said respondents to supply all the materials which the petitioners have sought for vide representation dtd.13/9/2004. The said petition being Special Civil Application No. 13153 of 2004 came to be dismissed by the Division Bench of this Court vide order dtd.8/10/2004. That being aggrieved by and dissatisfied with the aforesaid order dtd.8/10/2004, the petitioners preferred SLP (Civil) No. 5665 of 2005 before the Hon''ble Supreme Court with an application for condonation of delay. In the meantime, Notification u/s 6 of the act came to be published on 30/8/2005. The said SLP came up for hearing before the Hon''ble Supreme Court on 13/4/2006 and the Hon''ble Supreme Court condoned the delay and disposed of the said SLP by observing that the same would be without prejudice to the rights of the petitioners to seek information under Right to Information Act. That even before the Hon''ble Supreme Court disposed of the aforesaid S.L.P., the petitioners have preferred the present Special Civil Application on 27/1/2006 for an appropriate order to quash and set aside Notification u/s 6 of the Act. It appears that at the time of hearing of SLP before the Hon''ble Supreme Court on 13/4/2006, attention of the Hon''ble Supreme Court was not drawn with respect to the Notification u/s 6 of the Act already issued on 30/8/2005, nor with respect to filing of the present Special Civil Application challenging Notification u/s 6 of the Act.
4. Present Special Civil Application came up for hearing before the Division Bench of this Court on 6/2/2006 and Mr. Mangukiya, learned advocate appearing on behalf of the petitioners stated before the Court that on earlier occasion, Special Civil Application No. 13153 of 2004 was filed before this Court wherein compliance of Section 5A of the Act was challenged, but the same came to be dismissed by the Division Bench of this Court by judgement and order dtd.8/10/2004, against which SLP No. 5665 of 2005 has been preferred and the same is scheduled to be heard after Summer Vacation. Therefore, the Division Bench adjourned the present Special Civil Application for four weeks by observing that for the present there is no need to hear the petition challenging declaration made u/s 6 of the Act since it will be governed by the result of the SLP At this stage it is required to be noted that somewhat incorrect statement was made by the learned advocate appearing on behalf of the petitioners when the matter was heard on 2/6/2006 to the effect that in Special Civil Application No. 13153 of 2004, non-compliance of Section 5A of the Act was challenged. As stated hereinabove, what was challenged by the petitioners in the Special Civil Application No. 13153 of 2004 was the communication dtd.23/9/2004 and it was prayed for appropriate writ, order and/or direction to direct the respondents of the said Special Civil Application to supply the materials and informations sought by the petitioners vide letter dtd.13/9/2004. It appears from the record and proceedings that thereafter the present Special Civil Application is adjourned at least for more than 29 times and looking to the orders all through out, it is the learned advocate for the petitioners who has sought time on all the occasions and no attempts were made by the learned advocate appearing on behalf of the petitioners to see that the matter is heard effectively and/or any appropriate order is obtained. That thereafter, present Special Civil Application was notified before this Court on 28/2/2008 and though the matter was called out twice, learned advocate appearing on behalf of the petitioners was absent. However, in the interest of justice and as a last chance, this Court adjourned the matter to 29/2/2008 observing that on that day even in absence of the learned advocate for the petitioners, the matter will be proceeded further ex-parte. On 29/2/2008, learned advocate appearing for the petitioner prayed for time on personal ground and hence the matter was adjourned to 3/3/2008. On 3/3/2008, learned advocate for the petitioners submitted a Draft Amendment for permitting them to join High Court of Gujarat through Registrar General, Secretary-Legal Department and Additional Chief Secretary-Road and Building Department, as party respondents and to add certain additional pleadings in the memo of the present petition. It is required to be noted that present petition was required to be dismissed on the ground of non-joinder of proper parties, as the High Court, for whose benefit the lands were sought to be acquired, was not joined as party to the proceedings. However, to do complete justice, this Court allowed the Draft Amendment. Thereafter, Affidavit-in-Replies are filed by the present Special Land Acquisition Officer; the then Special Land Acquisition Officer; State Government as well as High Court. This Court has heard the learned advocates appearing on behalf of the respective parties at length.
5. Mr. Mangukiya, learned advocate appearing on behalf of the petitioners has challenged the Notification u/s 6 of the Act mainly on the following grounds:
i. that proper opportunity has not been given to the petitioners to submit the objection with respect to the need of the land in question by the High Court, as contemplated u/s 5A of the Act;
ii. that relevant materials sought by the petitioners to make effective representation u/s 5A of the Act, have not been provided till today though the same have been repeatedly asked by the petitioners;
iii. that there was no proper/sufficient material either before the Special Land Acquisition Officer or before the State Government with respect to need of 62,000 sq.mtrs. of land by the High Court.
iv. that the land available with the High Court at present is sufficient which can be utilised for expansion of the High Court and therefore, there is no need to acquire the land in question;
v. that there are other lands in the surrounding area reserved by the Ahmedabad Urban Development Authority (AUDA) under Town Planning Scheme which can be utilised for expansion of the High Court;
vi. that even on the other side of the existing High Court complex, there is Government Waste Land which can also be used for expansion of the High Court and for other authorities;
vii. that there was no sufficient data available with the Special Land Acquisition Officer and/or State Government with regard to the actual measurement of the additional court rooms, chambers, auditorium, central library, building for State Judicial Academy, building for State Legal Aid Committee, Legal Services Authority etc. and therefore, in absence of such material, the satisfaction with regard to the need for acquisition of the land has been vitiated;
viii. that as there is no need of the land in question and/or the land available with the existing High Court can be used and utilised for expansion of the High Court, the acquisition of the land in question is colourable exercise of powers, as the valuable land of the agriculturists have been taken away;
ix. that there is non-application of mind on the part of the State Government to arrive at the subjective satisfaction with regard to need to acquire the land in question for the expansion of the High Court.
6. Mr. Mangukiya, learned advocate appearing on behalf of the petitioners has submitted that as held by the Hon''ble Supreme Court in catena of decisions, right available to the land owners for objecting to acquisition is a valuable right and is not an empty formality. It is submitted that at the time of submitting objections u/s 5A of the Act, land owners can object to the acquisition proceedings on the ground that there is no need to acquire the land in question and/or the land is not required for public purpose. It is submitted that personal hearing provided u/s 5A cannot be taken away lightly by the concerned authorities and it is not that the land owners are required to sought opportunity of personal hearing, but it is the duty cast upon the concerned authority to provide personal hearing. It is submitted that if personal hearing is not provided before issuance of the notification u/s 6 of the Act, entire proceedings are vitiated and Section 6 notification is required to be quashed and set aside. It is submitted that before making effective representation, certain materials are required which the petitioners have sought but the same have not been provided either by the Special Land Acquisition Officer and/or by the State Government or by the High Court and therefore, the petitioners'' right to make effective representation/objection has been taken away.
7. Mr. Mangukiya, learned advocate appearing on behalf of the petitioners has relied upon the decisions of Allahabad High Court in the case of
8. Mr. Mangukiya, learned advocate has also relied upon the decision of the Hon''ble Supreme Court in the case of Tej Kaur and Ors. v. State of Punjab and Ors. reported in (2003) SCC 485 and in the case of
9. Mr. Mangukiya, learned advocate appearing on behalf of the petitioners has also relied upon the decision of the Hon''ble Supreme Court in the case of
10. Mr. Mangukiya, learned advocate appearing on behalf of the petitioners has submitted that present High Court premises is constructed only before 7 to 8 years and the area of the lands sought to be acquired under the impugned notification, is more than the area of the existing High Court Complex. It is submitted that while acquiring the land for the present High Court, the planner of the State must have considered all the aspects and requirement of the High Court for next 100 years, but, however, within a short span of 7 to 8 years, further land more than the existing High Court Complex is sought to be acquired. It is submitted by Mr. Mangukiya, learned advocate appearing on behalf of the petitioners that the land acquired by the Government for the purpose of housing the High Court is 1,36,927 sq.mtrs. With 1.2 Flow Space Index [FSI] and therefore, constructable area with the High Court is 1,64,312 sq.mtrs. and the built up area of the High Court premises is 59,545.45 sq.mtrs. and therefore, the available FSI of the High Court Complex as on today is 1,04,767 sq.mtrs. It is submitted that if the whole area sought to be acquired, further FSI would available to the High Court would be 1,99,200 sq.mtrs and therefore, the total area available with the High Court at the end of acquisition would be 3,03,967 sq.mtrs. and this area cannot be used for the purpose of expansion of the High Court for next 1000 (thousand) years. It is submitted that the existing land available with the High Court is sufficient for expansion of the High Court and therefore, there is no need to acquire further lands. It is further submitted that the aforesaid aspect has not been considered either by the Special Land Acquisition Officer or by the State Government and to that extent, there is non-application of mind on the part of the concerned authority to have subjective satisfaction in respect to the need of the land by the High Court.
11. It is also further submitted by Mr. Mangukiya, learned advocate appearing on behalf of the petitioners that there was no proper assessment made and data provided with respect to the actual need i.e. what would be the area of the court rooms, chambers, auditorium, building, library and for other purposes, for which the lands are sought to be acquired and unless and until proper assessment is made and data is provided, any satisfaction in respect to the need to acquire the additional land, is vitiated. It is submitted that the decision making procedure is not properly followed.
12. It is also submitted by Mr. Mangukiya, learned advocate appearing on behalf of the petitioners that assuming without admitting that there is need of additional land for expansion of the High Court and for other authorities, in that case also, there are other reserved plots available with Ahmedabad Urban Development Authority (AUDA) and other Government Waste Lands are also available with the State, and the said lands can be used and utilised for the expansion of the High Court Complex and therefore, the lands of the petitioners " agriculturists are not required to be acquired compulsorily. It is submitted that neither the Special Land Acquisition Officer nor the State has considered the aspect in respect to the availability of the other lands available with Ahmedabad Urban Development Authority (AUDA) and State and to that extent also the subjective satisfaction with regard to need of the land in question has been vitiated. It is submitted that thus, there is non-application of mind on the part of the State while arriving at the subjective satisfaction with respect to the need and availability of the other lands.
13. Mr. Mangukiya, learned advocate appearing on behalf of the petitioners has submitted that from the reply of Additional Special Land Acquisition Officer, Ahmedabad dtd.12/3/2008, it is clear that even report u/s 5A was prepared by him and was sent by him to the District Collector on 26/8/2005 and the Collector thereafter sent his report u/s 5A to the State Government on 28/9/2005 for consideration of the State Government and notification u/s 6 of the Act has been issued and published on 30/8/2005 within one day which shows that the State Government has not applied its mind properly and/or there was no sufficient time available with the State Government to apply its mind to arrive at the subjective satisfaction with respect to the need for expansion of the High Court and therefore, the subjective satisfaction has been vitiated and therefore, the notification u/s 6 of the Act requires to be quashed and set aside.
14. It is further submitted by Mr. Mangukiya, learned advocate appearing on behalf of the petitioners that the provisional objections submitted by the petitioners have not been considered either by the Special Land Acquisition Officer or by the State Government. It is submitted that after the order passed by the Hon''ble Supreme Court dtd.13/4/2006, the petitioners submitted representation asking for relevant materials and informations under Right to Information Act, but all the materials and informations sought by the petitioners have not been provided and thereby the petitioners have not been given fullest opportunity to submit their objections against the acquisition of their land and to point out that there is no deed to acquire the land in question, as either sufficient land is available with the High Court and some other reserved lands are available with AUDA and Government Waste Lands are available with the State and the said lands can be used for expansion of the High Court and therefore, the land of the petitioners in question are not required to be acquired.
15. Mr. Mangukiya, learned advocate appearing on behalf of the petitioners has relied upon various internal correspondences made by one authority to another authority and between the authority and the petitioners, in support of his submission that relevant materials sought by the petitioners have not been provided and thereby valuable right of the petitioners to submit effective objections against the acquisition of their land has been taken away. It is submitted that even considering various correspondences, it appears that even the concerned authorities were in dark with regard to requirement of the land by the High Court for expansion and the need, as there was no assessment/data provided by the High Court with regard to measurement for each building, court rooms etc. It is also submitted that even the copy of the proposal made by the High Court to the District Collector to acquire the land in question, has not been provided to the petitioners, though the same was demanded by the petitioners repeatedly.
16. Mr. Mangukiya, learned advocate appearing on behalf of the petitioners has submitted that Section 5A of the Act provides for hearing of the objections with respect to the need and the public purpose. It is submitted that two contingencies are provided u/s 5A of the Act namely [i] that the person has a right to submit objection and [ii] once objections are filed, it is imperative to provide personal hearing. It is submitted that in the present case, personal hearing has not been provided and even the informations and materials sought by the petitioners are also not provided and thereby the petitioners are deprived of the right to submit effective objections and therefore the right of the petitioners to submit effective objections has been defeated and therefore, the entire process has been vitiated.
17. It is also submitted by Mr. Mangukiya, learned advocate appearing on behalf of the petitioners that even provisional objections submitted by the petitioners dtd.13/9/2004 are not considered. It is submitted that there is no requirement under the Act that the objections submitted prior to notice u/s 4(1) of the Act are either premature and/or cannot be considered. It is also submitted that even from the communication dtd.23/9/2004, it was sought to be conveyed that the objections dtd.13/9/2004 is premature and the petitioners were directed to submit the objections after notice u/s 4(1) of the Act. Therefore, it is presumed that the provisional objections submitted by the petitioners dtd.13/9/2004 have not been considered. Submitting accordingly, it is requested to allow the present petition by quashing and setting aside notification u/s 6 of the Act and entire acquisition proceedings.
18. The petition is opposed by Mr. Dipen Desai, learned Assistant Government Pleader for the State as well as Special Land Acquisition Officer and Mr. JB Pardiwala, learned advocate appearing on behalf of the High Court i.e. acquiring body.
19. Affidavit-in-Replies are filed by the present Additional Special Land Acquisition Officer as well as the then Special Land Acquisition Officer. Affidavit-in-reply is also field by the State with respect to subjective satisfaction of the State in respect of the need of the land in question for High Court and considering the report u/s 5A of the Act and issuance of the notification u/s 6 of the Act. Affidavit-in-reply is also filed on behalf of the High Court justifying the need for acquiring the land in question for expansion of the High Court.
20. Mr. Dipen Desai, learned Assistant Government Pleader for the Special Land Acquisition Officer has submitted that the Special Land Acquisition Officer has followed the procedure which is required to be followed under the Act for acquisition of the lands in question. It is submitted that the proposal/requisition from the High Court to acquire the land in question and other lands came to be considered and having satisfied with respect to the need of the land in question for expansion of the High Court which is a public purpose, the Collector, Ahmedabad considered the same and thereafter intention to acquire the land in question along with other lands was declared by issuing notification u/s 4 of the Act. That thereafter notices u/s 4(1) of the Act were issued giving opportunity not only to submit objection but also providing personal hearing on 26/10/2004. The said notice was published in accordance with the provisions of the Act. It is submitted that prior thereto, the petitioners submitted their provisional objections dtd.13/9/2004 and by communication dtd.23/9/2004 the petitioners were informed to submit the objection/representation after notice u/s 4(1) of the Act. However, the petitioners have thereafter neither submitted any representation/objection nor availed the opportunity of personal hearing provided vide notices u/s 4(1) of the Act dtd.27/9/2004. Therefore, it is submitted that it cannot be said that the personal hearing has not been afforded at all. It is submitted that personal hearing was afforded to the petitioners, however, in fact, the petitioners have not availed of the same. It is submitted that still even the provisional objections submitted by the petitioners were considered and comments from the acquiring body was sought as required while preparing report u/s 5A of the Act and acquiring body submitted their remarks and the Special Land Acquisition Officer submitted report u/s 5A of the Act to the State Government along with the remarks from the acquiring body and the objections submitted by the petitioners and even the proposal of the High Court justifying the need of the land in question submitted vide communication dtd.4/5/2001 and subsequent proposal. Therefore, it is submitted that the procedure as required to be followed u/s 5A of the Act has been followed at the hands of the Special Land Acquisition Officer and therefore, it cannot be said that any of the rights of the petitioners available under the Act has been taken away. It is also submitted relying upon the Affidavit-in-reply on behalf of the State Government that the State Government, after considering report of the Special Land Acquisition Officer along with the remarks of the acquiring body and the objections and having satisfied with respect to the need of the land in question for expansion of the High Court and considering the relevant aspects, published declaration u/s 6 of the Act. It is submitted that once the declaration u/s 6(2) of the Act is published, there is presumption u/s 6(3) of the Act that the land in question is deemed to be needed for the public purpose.
21. Mr. Dipen Desai, learned Assistant Government Pleader has submitted that all the informations which were required and relevant have been provided to the petitioners. It is submitted as such in view of the decision of the Division Bench of this Court in Special Civil Application No. 13153 of 2004 dismissing the said petition wherein grievance was made by the petitioners with respect to non-supply of the materials and informations sought by the petitioners and in view of the dismissal of the SLP by the Hon''ble Supreme Court, now it is not open for the petitioners to contend with regard to the non-supply of the materials sought by the petitioners, if any. It is also submitted that the Hon''ble Supreme Court while dismissing the SLP has observed that the same is without prejudice to the rights of the petitioners to obtain the information under Right to Information Act. It is submitted that if the petitioners were really aggrieved with respect to non-supply of the some materials, then the petitioners ought to have availed the remedy by filing appeal under Right to Information Act. It is also submitted that notification u/s 6 of the Act came to be published on 30/8/2005 and the Hon''ble Supreme Court passed the order on 13/4/2006 and not only that even the present Special Civil Application challenging notification u/s 6 of the Act has been filed in the month of February, 2006 and it appears that attention of the Hon''ble Supreme Court was not drawn to the notification u/s 6 of the Act already published on 30/8/2005 or to the filing of the present Special Civil Application in the month of January, 2006 challenging notification u/s 6 of the Act. It is submitted that as such the representation / communication by the petitioners asking for materials/information sought by the petitioners is nothing but futile exercise, as it is contended by the petitioners that the materials/informations were sought by the petitioners to make effective representation objecting to acquisition and those objections are required to be considered prior to notification u/s 6 of the Act. It is submitted by Mr. Dipen Desai that any objections after notification u/s 6 of the Act objecting to the acquisition are not required to be considered once declaration u/s 6 of the Act has been published. Therefore, the entire exercise on behalf of the petitioners after notification u/s 6 of the Act is futile exercise.
22. It is also submitted by Mr. Dipen Desai, learned AGP that the Special Land Acquisition Officer and/or the State Government is not required to consider and/or have the material with respect to measurement inch by inch, as sought to be contended by the petitioners. It is submitted that what is required to be considered by the State Government is whether there is a need to acquire the land in question for the public purpose or not. It is submitted that at the time of having subjective satisfaction with regard to need, broad requirement and the need for public purpose is required to be considered by the State Government and at that stage, measurement of the Courts, buildings, library etc. inch by inch and/or feet by feet is not required.
23. It is submitted by Mr. Desai that the land in question along with other lands for which notification u/s 6 of the Act has been published, all are lands just adjacent to the existing High Court Complex. Other lands referred to by the petitioners which according to the petitioners are available with Ahmedabad Urban Development Authority (AUDA) and with State Government, are not within the vicinity of existing High Court. It is not expected that Court Rooms, Chambers for Judge, auditorium, Central Library, Advocate Chambers, building for State Legal Authority, building for State Judicial Authority etc. are constructed far away. It is submitted that all the aforesaid facilities are required within one complex and therefore, the land in question which are just adjacent to the High Court are the best suitable lands. It is submitted that even the Government Waste Lands which is adjacent to the High Court is also to be used for the expansion of the High Court and therefore, it cannot be said that the government waste land has not been used. This shows that the State Government as well as the Special Land Acquisition Officer has considered the aforesaid aspects also. It is also submitted by Mr. Desai that even the reserved plots which are referred to by the petitioners available with Ahmedabad Urban Development Authority (AUDA) are situated at a distant place and all the plots are reserved for various public purposes by the Ahmedabad Urban Development Authority (AUDA) under the T.P. Scheme under the provisions of the Town Planning Act and they are required to be used by the Ahmedabad Urban Development Authority (AUDA) for various public purposes, such as schools, garden, public utility services, commercial purpose, commercial sale etc. It is submitted that under the provisions of the T.P. Act, once any land is reserved for public purpose under sanctioned T.P. Scheme, unless the Town Planning Scheme is varied, the said land cannot be utilised and used for any other purpose. It is submitted that once the need is established, it is ultimately for the concerned authority to consider which land is suitable, unless some malafides are alleged that with malafide intention and oblique motive the land is sought to be acquired and other lands are not acquired.
24. It is submitted by Mr. Desai, learned AGP that present Special Civil Application is required to be dismissed on the ground of delay and laches also, as the petitioners were not vigilant enough to see that the present Special Civil Application is heard effectively. It is submitted that present petition is filed in the month of January, 2006 and thereafter the matter is adjourned at least for 29 times and on all the occasions, adjournments are sought by the learned advocate for the petitioners and the learned advocate appearing for the petitioners has never tried to see that the matter is effectively heard and thereby has allowed the proceedings to be completed. It is submitted that after notification u/s 6 of the Act on 30/8/2005, notices u/s 9 of the Act were issued for determining the compensation and the Special Land Acquisition Officer declared award u/s 11 of the Act and all the land owners, barring the petitioners, have accepted the compensation and have submitted reference applications u/s 18 of the Act. It is also submitted that thus, the entire acquisition proceedings have been completed by now and the possession of the land in question is already taken by the appropriate authority and in turn the same has been handed over to the High Court administration and the High Court is in possession of all the lands inclusive of the land in question. It is also submitted that even the petitioners have also submitted reference application u/s 18 of the Act under protest and therefore, when the entire acquisition proceedings have been completed, the petition be dismissed.
25. Mr. Dipen Desai, learned advocate appearing on behalf of the petitioners has relied upon the decision of the Hon''ble Supreme Court in the case of
26. Mr. Desai, learned AGP has also relied upon another decision of the Hon''ble Supreme Court in the case of
27. It is submitted that after notice u/s 4(1) of the Act, when the petitioners have not submitted any objection, it is not open for the petitioners to make a grievance that personal hearing has not been afforded. It is submitted that as such by notice dtd. 27/9/2004 issued in the form of notice u/s 4(1) of the Act, interested persons in the said lands sought to be acquired not only were called upon to submit the objection as required u/s 5A of the Act but were also informed that at the time of submitting objections, if any, they will also be heard by the Special Land Acquisition Officer. Still the petitioners have not availed of that opportunity of personal hearing which was afforded as per notice u/s 4(1) of the Act and therefore, now it is not open for the petitioners to make a grievance that the personal hearing has not been afforded. It is submitted that in fact personal hearing was afforded but the petitioners have not availed of the same. Therefore, it is submitted that the impugned notification/declaration u/s 6 of the Act is not required to be quashed and set aside on the said ground.
28. The petition is opposed by Mr. JB Pardiwala, learned advocate appearing on behalf of the High Court. With respect to the submissions made on behalf of the petitioners that the acquisition is not necessary and there is no need to expand the existing High Court Complex and/or sufficient land is available with the High Court as on today for the purpose of extension of the High Court and without acquiring additional land, the extension is possible, Mr. Pardiwala, learned advocate appearing on behalf of the High Court has submitted that the same has been considered and it is not possible to raise construction upon the existing building. It is submitted that so far as the submissions made on behalf of the petitioners that other plots/lands under reservation are available with AUDA and the same can be used and/or utilised are concerned, it is submitted that the lands reserved by AUDA are all scattered and those are reserved under the sanctioned TP Scheme and unless the TP Scheme is varied, the said lands cannot be used for any other public purpose. It is submitted that so far as the petitioners'' and other lands which are acquired, all are just adjacent to the present High Court complex and they are the best suitable land for expansion of the High Court and it is not expected that some buildings are constructed at far away from the existing High Court complex. It is submitted that inquiry by the High Court as regards assessment of the suitability of the lands acquired; extent of land sought to be acquired; alternative lands suggested by the petitioners " land owners are completely immune from the judicial review. It is submitted that it is not even urged or argued on behalf of the petitioners that any of the constitutional provisions have been violated in selecting the land and malafides are also not alleged.
29. It is also submitted by Mr. Pardiwala, learned advocate appearing on behalf of the High Court that as such the petition suffers from vices of delay and laches. It is submitted that the record reveals that present petition was filed in the month of January, 2006 and if the petitioners were very much concerned, they ought to have taken effective step to obtain some orders. It is submitted that this is having some significance as during the interregnum period, possession is taken over by the Government in accordance with law and in turn handed over to the acquiring body i.e. in the present case High Court and the title of the land has been validly vested with the State / High Court free from all encumbrances. It is submitted that there is no provision under the Act to divest the title which has validly vested in the State.
30. It is submitted by Mr. Pardiwala, learned advocate appearing on behalf of the High Court that the petitioners have allowed the acquisition proceedings to be completed by not obtaining appropriate orders in the present Special Civil Application and/or taking steps for effective hearing of the petition. It is submitted that after the petition was filed in the month of January, 2006 various steps have been taken by the Special Land Acquisition Officer, State Government and the High Court and still the petitioners have not taken any steps for effective hearing of the petition and the petition has been adjourned at least for 29 times and on all the occasions, the petition has been adjourned at the instance of the learned advocate appearing on behalf of the petitioners.
31. Mr. Pardiwala, learned advocate for the High Court has relied upon the decision of the Hon''ble Supreme Court in the case of
32. Mr. Pardiwala, learned advocate appearing on behalf of the High Court has also relied upon the decision of the Hon''ble Supreme Court in the case of
33. Mr. Pardiwala, learned advocate appearing on behalf of the High Court has also relied upon the decision of the Hon''ble Supreme Court in the case of
34. Mr. Pardiwala, learned advocate appearing on behalf of the High Court has relied upon the decision of the Hon''ble Supreme Court in the case of
i. Court Building " 25 Additional Court Rooms with Chambers.
ii. 20 Additional Chambers for Hon''ble Judges.
iii. Court room to accommodate minimum 100 persons.
iv. Chambers and Ante Chambers.
v. Private Secretaries'' Rooms.
vi. Visitors'' Room.
vii. Judges'' Lounge.
viii. Central Library.
ix. Administrative Block.
x. Committee Room.
xi. Storage Room for Stationery items.
xii. Auditorium.
xiii. Judicial Academy.
xiv. Administrative Block.
xv. Academic Block.
xvi. Health Care Center and Recreation.
xvii. Advocates'' Facility.
xviii. Banking Facility.
xix. Post Office.
xx. Gujarat State Legal Services Authority.
xxi. High Court Legal Services Committee.
xxii. Dormitory for Security Staff.
35. It is submitted that the requirement in detail has been explained in the Affidavit in reply filed by the High Court. It is submitted that no malafides are alleged and as the land in question are just adjacent to the present High Court Complex, they are the best suitable land, so that all the facilities and the buildings for various authorities like State Judicial Academy, Gujarat State Legal Services Authority, High Court Legal Aid Services Committee, auditorium, central library etc. are provided in one complex.
36. It is submitted that the Division Bench of this Court in the case of Mandoobhai Dadoobhai v. State of Gujarat and Ors. reported in 1995 (1) GLH 907 (para 15 and 16) has held that it is not permissible for the High Court in exercise of its powers under Article 226 of the Constitution of India to inquire as regards assessment of suitability of the land acquired, extent of land sought to be acquired, alternative lands suggested by the petitioners etc. inquiry into all these questions is completely immune from judicial review.
37. It is submitted that in all, the lands of 15 individuals have been acquired under the notification in question and the petitioner is one of the land owners who has chosen to challenge the acquisition on the ground that his right of filing effective objections u/s 5A of the Act is infringed and also on various other grounds. It is submitted that admittedly out of 15 land owners, except the petitioner nobody has questioned the acquisition and all other 14 individuals whose lands have been acquired, have accepted compensation and have individually filed references and they have also voluntarily handed over possession to the State Government. It is submitted that even with respect to the land of the petitioners also, Award has been declared and possession has been taken over by the State Government in accordance with law and in turn handed over to the High Court and therefore, the entire acquisition proceedings have been completed and therefore, it is submitted that if at this stage acquisition proceedings is interfered with, the entire project would be jeopardised and it will be adversely affected. It is submitted that even otherwise much time is consumed and delay has already been occurred and further delay would not be in the public interest looking to the difficulties faced by all concerned inclusive of the litigants, advocates etc. It is submitted that therefore it is a case of irreversible situation and it will not be possible to proceed with the expansion project on the lands where there is no objection and segregate the land of the petitioners.
38. It is submitted that even material and informations which were found to be relevant, have been provided to the petitioners. It is submitted that the petitioners have asked certain informations/materials, that too after notification u/s 6 of the Act, which are not relevant.
By making the aforesaid submissions and relying upon the aforesaid decision, Mr. Pardiwala, learned advocate appearing on behalf of the High Court has requested to dismiss the present petition.
39. Heard the learned advocates appearing on behalf of the respective parties at length.
40. At the outset, it is required to be noted that notification u/s 4 of the Act has been published on 17/8/2004 declaring intention to acquire the land in question after considering the proposal made by the High Court of Gujarat, looking to the need to acquire the land for the expansion of the High Court, which will be narrated hereinafter. It also appears that notice u/s 4(1) of the Act inviting objections, if any, u/s 5A of the Act has been issued on 27/9/2004. The petitioners submitted provisional objections on 13/9/2004 and in the said representation the petitioners also sought some informations. By communication dtd.23/9/2004, the petitioners were informed to submit objection at appropriate stage and after notice u/s 4(1) of the Act is issued. Being aggrieved by and dissatisfied with the said communication dtd.23/9/2004 and the action of the Special Land Acquisition Officer and the Collector of not providing informations and materials sought by the petitioners vide representation dtd.13/9/2004, the petitioners preferred Special Civil Application No. 13153 of 2004 which came to be dismissed by the Division Bench of this Court vide order dtd.8/10/2004. The petitioners did not take any step to challenge the said order immediately and/or within the period of limitation, however, filed SLP before the Hon''ble Supreme Court belatedly with an application for condonation of delay. It appears that the said SLP came up for hearing before the Hon''ble Supreme Court on 13/5/2005 and upon hearing the counsel, the Hon''ble Supreme Court adjourned the said SLP after summer vacation. It appears that thereafter declaration and notification u/s 6 of the Act has been issued and published on 30/8/2005. A notice u/s 9 of the Act for determination of the compensation was issued on 19/10/2005 and interested persons were required to submit their case on or before 17/11/2005. The petitioners made their submissions in writing dtd.5/11/2005 asking for the compensation at the rate of Rs. 20,000 per sq.mtr. That thereafter, the petitioners preferred present Special Civil Application on 27/1/2006 challenging notification u/s 6 of the Act dtd.30/8/2005. It appears from the record that the present petition came up for hearing for the first time before the Division Bench on 6/2/2006. It was stated by the learned advocate appearing on behalf of the petitioners that on earlier occasion, Special Civil Application No. 13153 of 2004 before this Honourable Court wherein non-compliance of Section 5A was challenged but the same has been dismissed by the Division Bench of this Court by judgement and order dtd.8/10/2004, against which SLP is pending and scheduled to be heard after summer vacation. Therefore, the present petition came to be adjourned for four weeks with a liberty to the petitioners to move the court for early hearing if the matter before the Apex Court is decided prior to it. It appears that as it was reported that in Special Civil Application No. 13153 of 2004, non-compliance of Section 5A of the Act was challenged and in the present Special Civil Application grievance is made without effective compliance of Section 5A of the Act, notification u/s 6 has been issued and the decision in Special Civil Application No. 13153 of 2004 is challenged by way of SLP, the Division Bench also observed that the petition challenging declaration made u/s 6 of the Act will be governed by the result o the SLP. At this stage, it is required to be noted that the aforesaid statement by the learned advocate appearing on behalf of the petitioners in Special Civil Application No. 13153 of 2004 non-compliance of Section 5A of the Act was challenged, is somewhat incorrect. Be that it may. Thereafter, the present petition has been adjourned at least for 29 times and on all the occasions time is sought by the learned advocate appearing on behalf of the petitioners on various grounds i.e. sick-note " leave- note etc. It appears from the record that SLP preferred by the petitioners against the aforesaid decision in Special Civil Application 13153 of 2004 came up for hearing by the Hon''ble Supreme Court on 13/4/2006 and the Hon''ble Supreme Court passed the following order:
Delay is condoned.
Without prejudice to petitioners'' right to seek information under Right to Information Act SLP is disposed of.
41. As stated above, in the meantime notification u/s 6 of the Act has been published on 30/8/2005, even acquisition proceedings were proceeded further and notices u/s 9 of the Act came to be issued and served upon the petitioners and others for determination of the compensation u/s 11 of the Act on 19/10/2005 and even the petitioners also filed the present petition challenging notification u/s 6 of the Act in the month of January, 2006 and nothing is on record whether the attention of the Hon''ble Supreme Court was drawn when the SLP was heard on 13/4/2006 that Section 6 notification is already published on 30/8/2005 and the petitioners have also filed petition in the month of January, 2006 challenging notification u/s 6 of the Act. This fact is significant considering the fact that after notification u/s 6 of the Act is published, there is no question of submitting any objection/representation objecting to the acquisition on the ground of need etc. and asking for the informations/materials for that purpose and therefore, it appears that even the Hon''ble Supreme Court was also kept in dark with respect to issuance of the notification u/s 6 of the Act on 30/8/2005 and even filing of the present petition. As stated above, thereafter, pursuant to the notice u/s 9 of the Act, the petitioners have submitted their objections asking for compensation at the rate of Rs. 20,000 per sq.mtr. and Special Land Acquisition Officer has declared award u/s 11 of the Act on 10/10/2006 and except the petitioners, all other land owners have accepted compensation and have also submitted reference applications u/s 18 of the Act. Not only that even the petitioners have also submitted reference application u/s 18 of the Act on 21/11/2006 under protest. It is also to be noted that the petitioners were also offered compensation but they have not accepted the same. In the meantime, the State Government and the Special Land Acquisition Officer has already taken over the possession of all the lands acquired under the notification dtd.30/8/2005 inclusive of the petitioners'' land and in turn the possession of all the lands have been handed over to the High Court administration and High Court is in possession of the land in question since 26/3/2007.
42. Thus, the entire acquisition proceedings have been completed. On declaring the award and on payment of the compensation of all the lands under the notification inclusive of the land in question, all the lands in question inclusive of the land of the petitioners in question have been vested in the State free from all encumbrances. As stated above, after March, 2006 and even after disposal of the SLP by the Hon''ble Supreme Court in the month of April, 2006 and inspite of the aforesaid development taken place and the acquisition proceedings had proceeded further, the petitioners and/or their advocate have never tried to see that the petition is effectively heard and appropriate order is obtained. As stated above, the matter has been got adjourned at least for 29 times and on all the occasions, it is the learned advocate appearing on behalf of the petitioners who sought time. Thus, the petitioners have permitted the acquisition proceedings to be completed. They have never been vigilant enough to obtain appropriate order and to see that the matter is heard effectively. Mere filing of the petition challenging notification u/s 6 of the Act making a grievance of non-compliance of Section 5A of the Act is not enough. When certain developments have taken place and acquisition proceedings have proceeded further and even the petitioners have also participated in the said proceedings, if the petitioners were so concerned and/or serious and sincere in challenging the acquisition and notification u/s 6 of the Act, in that case, they would have taken steps to see that the petition is heard effectively and appropriate orders are obtained. Looking to the record and the order-sheet, it appears that all through out i.e. on 29 occasions, it is the learned advocate appearing on behalf of the petitioners who sought time on one ground or other and has never tried to see that the matter is heard. He has never tried to see that appropriate orders are obtained after making submissions on merits and after effective hearing. Thus, the petitioners have permitted/allowed to complete the acquisition proceedings. Once the acquisition proceedings are allowed/permitted to be completed and the land in question is permitted to be vested in the State free from all encumbrances, now it is not open for the petitioners to contend that still the petitioners can challenge notification u/s 6 of the Act as the petitioners had preferred Special Civil Application. As stated above, the petitioners have allowed acquisition proceedings to be completed. Only filing the present Special Civil Application challenging notification and not taking any steps for effective hearing of the petition, is as much as not filing of the petition. The petitioners cannot sit on the fence and allow the State to complete the acquisition proceedings and then to attack the notification on the grounds which were available to them at the time they were published as it would be putting a premium on dilatory tactics. At this stage decision of the Hon''ble Supreme Court in the case of
43. In the case of DR Laxmi (supra), the Hon''ble Supreme Court has held and observed that when all the steps taken in the acquisition proceedings become final, court should be loath to quash the notification. It is observed that no doubt, High Court has discretionary powers under Article 226 of the Constitution of India to quash the notification u/s 4(1) and declaration u/s 6, but it should be exercised taking all relevant factors into pragmatic consideration. It is held that when award was passed and the possession was taken, court should not have exercised its powers to quash the acquisition considering the declaration of award which is a material factor to be taken into consideration before exercising powers under Article 226. It is also further observed that the fact that no third party rights were created in the case, is hardly a ground for interference. It is also further observed by the Hon''ble Supreme Court in the said decision that though the order may be void, if the party does not approach the Court within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the court has to be exercised in a reasonable manner. It is observed that when discretion has been conferred on the court, the court may, in appropriate case, decline to grant the relief, even if it holds that the order was void. In the case before the Hon''ble Supreme Court, as the acquisition had become final and not only the possession was taken but reference was also sought for, the Hon''ble Supreme Court held that the High Court was not justified in interfering with and quashing notification u/s 4(1) and declaration u/s 6.
44. In the present case also as stated hereinabove, acquisition proceedings have been completed; possession has been taken over and in turn handed over to the acquiring body i.e. High Court; award has been declared; except the petitioners all other land owners have accepted the compensation and have submitted reference applications u/s 18 of the Act and even the petitioners have also submitted reference application u/s 18 of the Act under protest and no steps are taken by the petitioners to obtain appropriate order after effective hearing and allowed the acquisition proceedings to be completed and therefore, the present petition under Article 226 of the Constitution of India is not required to be entertained and the declaration u/s 6 of the Act cannot be quashed now as irreversible situation has arisen.
45. The aforesaid decision in the case of DR Laxmi (supra) has been further considered by the Hon''ble Supreme Court in the case of H.M. Kelogirao (supra). The same view has been reiterated by the Hon''ble Supreme Court in subsequent decision in the case of Northern India Glass Industry (supra) and in the case of Tej Kaur and Ors. (supra). In the case of Tej Kaur and Ors. declaration u/s 6 was made on 18/3/1992; award was passed on 15/3/1994; the writ petition was filed on 12/4/1994 making a grievance against Section 5A inquiry and making a grievance that personal hearing was not given, and the Hon''ble Supreme Court did not interfere with the order passed by the High Court dismissing the petition by observing that the appellants allowed the acquisition proceedings to go on until the Award was passed which indicates that the appellants did not have a genuine grievance against Section 5A inquiry held by the Collector. In the present case, the only difference is that the petitioners filed the petition after five months of declaration u/s 6 but as stated above, did not take any step for effective hearing of the petition though the matter was adjourned for 29 times and thereby allowed the acquisition proceedings to be proceeded further and completed. Thus, considering the aforesaid decision of the Hon''ble Supreme Court, the petitioners are not entitled to any reliefs prayed for in the writ petition, more particularly when the land in question and other lands have been vested in the government free from all encumbrances and the possession of the same has been handed over to the acquiring body i.e. High Court administration since long and thus, it is a case of irreversible situation. It is required to be noted that though the petition was filed in the month of April, 2006 and though the acquisition was for expansion of the High Court Complex by the High Court, the acquiring body i.e. High Court was not even joined as party respondent till 3/3/2008 and having realised that the petition would fail for not joining proper parties, amendment was sought and in the larger interest we permitted the petitioners to join High Court as party respondent. It is also required to be noted that even the concerned Department of State of Gujarat was also not joined as party respondent till 3/3/2008. Therefore, till 3/3/2008, neither High Court nor the Secretary-Road and Building Department, State of Gujarat were parties to the present proceedings and in the meantime, not only notification u/s 6 has been published but as stated above, proceedings u/s 9 of the Act were initiated in which the petitioners participated and award u/s 11 of the Act has been declared and reference application u/s 18 have also been made. Even otherwise, there is no case on merits also and for the reasons stated hereinafter, the petition requires to be dismissed.
46. It is the contention on behalf of the petitioners that notification u/s 6 of the Act is required to be quashed and set aside as certain informations/materials sought by the petitioners from time to time have not been given to the petitioners and thereby adequate opportunity to submit the objection u/s 5A of the Act has not been given to the petitioners and/or the petitioners are restrained from making effective representation by not providing certain informations/materials sought by the petitioners from time to time. It is also the contention on behalf of the petitioners that personal hearing as provided u/s 5A of the Act has not been afforded and therefore also the notification u/s 6 of the Act is required to be quashed and set aside. Now, what is required to be considered is what are the informations and the materials sought by the petitioners and when and from whom and whether non-supply of the informations/materials sought by the petitioners, if any, ipso facto would render the notification u/s 6 of the Act illegal?. Notification u/s 4 of the Act was published on 17/8/2004 declaring intention to acquire the land in question and other lands for the expansion of the High Court and even notice u/s 4(1) of the Act was published in accordance with the provisions of the Act on 27/9/2004 calling upon the interested persons to submit objections as provided u/s 5A of the Act on or before 26/10/2004. It was also mentioned in the said notice u/s 4(1) of the Act that at the time of submitting objections, if any, Special Land Acquisition Officer would hear the objector and/or their advocate in person also. It appears from the record and even as per the petitioners, the petitioners addressed a communication dtd.13/9/2004 to the District Collector, Ahmedabad submitting provisional objections as well as demanding certain informations/materials. By the aforesaid representation/provisional objection, the petitioners sought the following informations:
i. Copy of the requirement, if any, received from the office of the High Court for expansion of the High Court.
ii. Details of the land acquired for the purpose of construction of High Court.
iii. The total area which has been used for construction of the premises of the High Court i.e. Court Rooms and other allied buildings.
iv. The total area available with the High Court which is kept vacant and not used for the purpose of construction of building.
v. Strength of the judges of the High Court, number of the Court Rooms constructed, number of likely increase in the strength of the judges of the High Court and number of new Court Rooms and allied infrastructures required to be created in next decade and in next coming 50 years or so.
vi. It may be noted that the Law Commission of India is making suitable recommendations with the ratio of the Hon''ble Judges as per the data of population and therefore, recommendation, if any, made by the Law Commission for the suggested increase in the strength of the Hon''ble Judges of the Hon''ble High Court.
vii. Recommendations of Law Commission of India for providing infrastructure for effective working and functioning of the High Court Judges.
viii. Copy of the proposals received by you relying upon which you have formed an opinion about the requirement of the land for the public purposes so notified in your notification. The said proposals may be provided with all annexures and the schedule attached thereto.
ix. Details and all the dates in respect of earlier acquisition made by the Government for construction of the new premises for housing the High Court. The said materials may include assessment made by the concerned authorities of the possible requirement of Hon''ble High Court in next 100 years.
x. Copy of all the documents upon which the opinion was formed by the Collector for the purpose of earlier acquisition.
xi. Possible alternatives like constructing court rooms on the existing high court, constructing parking area of 2 basements in the huge open ground, remaining (balance) Floor Space Index (FSI) in the existing premises, availability of land of State Government and AUDA and from TP.
It is required to be noted at this stage that the aforesaid information was sought by the petitioners from the District Collector, Ahmedabad. On bare reading of the aforesaid and the purpose for which the information was sought, except one or two information sought by the petitioners, the Collector is not supposed to either furnish the information and/or was not supposed to have the information. As stated above, by communication dtd.23/9/2004, the petitioners were informed to submit the objection at the relevant time after notice u/s 4(1) of the Act are served. That the aforesaid communication dtd.23/9/2004 was the subject matter of Special Civil Application No. 13153 of 2004 and a grievance was made in the said communication with respect to not providing informations/materials sought vide communication dt.13/9/2004 and the said Special Civil Application came to be dismissed by the Division Bench of this Court vide judgement and order dtd.8/10/2004, against which SLP was preferred by the petitioners before the Hon''ble Supreme Court, which also came to be disposed of by observing that it will be open for the petitioners to sought informations under Right to Information Act. It is required to be noted at this stage that even before the Hon''ble Supreme Court disposed of the SLP, notification u/s 6 of the Act was already published on 30/8/2005 and even the petitioners also preferred present Special Civil Application even before the Hon''ble Supreme Court disposed of the SLP in the month of April, 2006. That thereafter, after a period of four months of the disposing of the SLP by the Hon''ble Supreme Court, vide communication dtd.25/8/2006, the petitioners for the first time submitted application before the Public Information Officer and Dy. Secretary (Land Acquisition), Revenue Department, Government of Gujarat, Block No. 11, Sachivalaya, Gandhinagar (Annexure-Q to the petition). However, considering the said application dtd.25/8/2006 which was submitted under Right to Information Act, it is clear that no particulars were given by the petitioners for which information was sought for. The information was sought by the aforesaid application without giving any particulars and therefore, by communication dtd.8/9/2006, the petitioners were informed that it is not clear which information is sought. It appears that thereafter the petitioners vide communication dtd.25/9/2006 sought information from the authority under the Right to Information Act. By the aforesaid communication, the petitioners sought informations/particulars which are reproduced hereinabove. It is required to be noted at this stage that the application was submitted by the petitioners to the authority under Right to Information Act of the Revenue Department only and not before the appropriate authority of the other concerned departments with whom the information is supposed to be and/or relevant appropriate authority. Still the authority under the Right to Information Act of the Revenue Department, State of Gujarat sent the said application to the appropriate authorities, such as Legal Department, Executive Engineer, PWD etc. and the petitioners were informed to approach the said authorities. It appears from the various correspondence that the concerned department provided relevant informations/particulars to the petitioners and the petitioners were also informed that if the petitioners are still not satisfied, it will be open for them to prefer appeal as provided under Right to Information Act. Nothing is on record to show that the petitioners ever preferred any appeal before the appellate authority under Right to Information Act making a grievance with respect to non-supply of all or any of the informations/particulars sought by the petitioners. Therefore, it appears that the petitioners were either satisfied with the informations/particulars already furnished by the concerned department or the petitioners were not very much serious about their grievance with respect to non-supply of any of the informations/particulars. Considering various communications, it appears that by and large all the informations/particulars which are relevant have been furnished to the petitioners.
1. It is the contention on behalf of the petitioners that by not providing all the informations/particulars sought by the petitioners, the petitioners have been deprived of submitting effective objections as contemplated u/s 5A of the Act with respect to the need and the requirement of the land in question and therefore, the same is in breach of principles of natural justice. The petitioners have not stated in the petition as to what prejudice has been caused to them on account of not providing particulars/informations to them. To make out a case of violation of principles of natural justice, one has to show the actual prejudice caused to him, by not providing certain material/information, which the petitioners have failed to do so. By mere submitting that non supply of the particulars/information/material has vitiated the decision and/or the same is in breach of the principles of natural justice itself is not enough. It is also required to be noted at this stage that the petitioners had sought informations and particulars after the notification u/s 6 of the Act, except the first representation/provisional objection. As per the petitioners the said informations/particulars were sought by the petitioners to submit effective objections against the acquisition as contemplated u/s 5A of the Act. As stated above, declaration / notification u/s 6(1) was already published on 30/8/2005 and therefore, any information/particular sought by the petitioners to submit objections as contemplated u/s 5A of the Act has become infructuous inasmuch as after notification u/s 6 of the Act, there is no question of submitting objections u/s 5A of the Act. Therefore, the entire exercise of demanding informations/materials by the petitioners after notification u/s 6 of the Act is nothing but exercise in futility. Even otherwise all the authorities by and large have supplied the informations/particulars sought by the petitioners which were relevant and which were available with them. It is not the case of the petitioners that all the particulars/informations sought by the petitioners are not at all furnished to them. By communication dtd.8/11/2006 the Special Land Acquisition Officer furnished the particulars with respect to their department. By communication dtd.14/11/2006, the Executive Engineer, High Court, Road and Building Department, Ahmedabad furnished particulars with regard to item Nos. 3, 4 and 11 and the petitioners were informed with respect to the area of the land used for the construction of the High Court i.e. court rooms and other allied buildings; total area of the High Court; the petitioners were also informed that as the lifts are terminated at third floor and on terrace, there are heavy pipe lines for centrally air conditioned system, computers, water supply, fire fighting etc. are provided, there is no possibility of further vertical courtrooms on existing High Court. Vide communication dtd.28/11/2006, the Public Information Officer, Gujarat High Court also furnished information sought by the petitioners. Thus, it cannot be said that the petitioners are not furnished the relevant informations/particulars sought by the petitioners at all. It appears that all the relevant material informations sought by the petitioners are furnished by the appropriate authorities. As stated hereinabove, the petitioners have not specifically pleaded the actual prejudice caused to them on account of non-supply of the particular informations/particulars sought by them, if any. Under the circumstances, the submission of the petitioners to quash and set aside the notification u/s 6 of the Act on the ground of non-supply of materials/informations sought by them, cannot be accepted.
2. Now, it is the contention on behalf of the petitioners that the impugned notification/declaration u/s 6 of the Act requires to be quashed and set aside as the mandatory procedure u/s 5A of the Act, is not followed and the petitioners have not been given opportunity of personal hearing and the petitioners'' right to submit objections have been taken away. It appears from the record that vide notice u/s 4(1) of the Act dtd.27/9/2004, the petitioners and all other interested persons were directed to submit objections, if any, on or before 26/10/2004 and they were also informed that the Special Land Acquisition Officer will hear the objectors and/or their advocates in person at the time of submitting objections. It is an admitted position that after notice u/s 4(1) of the Act, the petitioners have not submitted any objection and/or even did not remain present before the Special Land Acquisition Officer for personal hearing in response to notice u/s 4(1) of the Act. It is the contention on behalf of the petitioners that the petitioners are not served with notice u/s 4(1) of the Act individually. There is no such requirement under the Act to serve notice u/s 4(1) of the Act individually. Notice u/s 4(1) of the Act is required to be published by affixing it at various conspicuous places of the village and the same is done. As held by the Hon''ble Supreme Court in the cases of Talson Real Estate Pvt. Ltd. (supra) and Gurudip Singh Urban (supra), the person who has not submitted any objection as contemplated u/s 5A of the Act after notice u/s 4(1) of the Act within stipulated time, cannot raise a grievance for not affording personal hearing. As held by the Hon''ble Supreme Court in the aforesaid two decisions personal hearing is required to be afforded to a person who has submitted objection u/s 5A of the Act and not otherwise. Even otherwise in the present case, it is not that the personal hearing has not been afforded at all. As stated above, in the notice u/s 4(1) of the Act, it was specifically mentioned that the Special Land Acquisition Officer would afford personal hearing at the time of submitting objections. Under the circumstances, when the opportunity of personal hearing was afforded by the authority, and the petitioners have not availed of the same, now it is not open for the petitioners to make a grievance that procedure u/s 5A of the Act has not been followed and therefore the declaration/notification u/s 6 of the Act is required to be quashed and set aside, more particularly when the petitioners have allowed the acquisition proceedings to be completed (though filed the petition but did not take any steps to see that the matter is heard effectively and sought adjournments for more than 29 times). Even otherwise, we have perused the relevant files and even so stated in the Affidavit-in-reply of the Special Land Acquisition Officer, even provisional objections submitted by the petitioners vide representation/objection dtd.13/9/2004 had been considered by the Special Land Acquisition Officer.
3. Now so far as the contention on behalf of the petitioners that procedure required to be followed u/s 5A of the Act before issuing declaration/notification u/s 6 has not been followed, is concerned, we have perused the relevant files and even otherwise considering the averments in the Affidavit-in-replies filed by the Special Land Acquisition Officer and the State Government, it appears that the Special Land Acquisition Officer asked for the remarks of the acquiring body with respect to the provisional objections submitted by the petitioners and after receiving the remarks, the Special Land Acquisition Officer submitted report u/s 5A and sent it to the State Government for taking appropriate decision and after considering the same, the State Government having satisfied with respect to the need and the requirement of the land in question for public purpose, directed to issue notification u/s 6 of the Act. Therefore, entire procedure as required to be followed u/s 5A before issuance of the notification u/s 6 has been followed by the Special Land Acquisition Officer.
4. As held by the Hon''ble Supreme Court in the case of Smt. Somavanti and others (supra), once Government is satisfied with respect to the land needed for the public purpose, it is entitled to make a declaration and once such a declaration is made under Sub-section (2) of Section 6, Sub-section (3) of Section 6 invests it with conclusiveness and that conclusiveness is not mere regarding fact that Government is satisfied but is also with regard to question that the land is needed for public purpose.
5. So far as the decisions cited by Mr. Mangukiya, learned advocate for the petitioners at bar in the case of Taj Kaur and others (supra), the same will not be of any assistance to the petitioners in the facts and circumstances of the case, more particularly when it is found that the procedure required to be followed u/s 5A of the Act has been followed. Even the decision of the Hon''ble Supreme Court in the cases of Talson Real Estate Pvt. Ltd. (supra) and Gurudipsingh Singh Uban (supra), will not be helpful to the petitioners. There cannot be any dispute to the proposition of law that right conferred upon Section 5A upon the persons whose land is sought to be acquired is a valuable right and must be effective and breach of Section 5A would render Section 6 notification illegal. In the case before the Hon''ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. (supra), a person aggrieved questioned the decision making process and the court in order to satisfy itself as to whether one or more judicial review exist, called for the records and the files to peruse the relevant records with respect to decision making process and the Hon''ble Supreme Court observed that it was the duty of the State Government to produce the relevant files on record and/or failure to file counter affidavit may be treated as government''s admission to the allegations made against it. In the case before the Hon''ble Supreme Court, on facts it was found that there was non-compliance of provisions of Section 5A.
6. Now, the main contention on behalf of the petitioners with respect to need and requirement of the land in question is that under some Town Planning Schemes, certain lands are available with Ahmedabad Urban Development Authority (AUDA) which can be made available for the expansion of the High Court and therefore, the land in question is not required to be acquired. It is also the contention on behalf of the petitioners that the Gauchar land admeasuring 1,61,896 sq.mtrs. of various Revenue Survey Numbers are available and about 30,000 sq.mtrs. of land is available just opposite to the present High Court i.e. on the other side of the road and the said land can be used and/or made available for the expansion of the High Court and therefore, there is no need to acquire the land in question. It is also the contention on behalf of the petitioners that the land available with the High Court is sufficient for expansion of the High Court and therefore, the land in question is not required to be acquired. Thus, the objection of the petitioners is in respect to the need; requirement and suitability of the land. At this stage, it is required to be noted that so far as the land in question and other lands acquired under the impugned notification dtd.30/8/2005 are just adjacent to the existing High Court Complex and the lands available with Ahmedabad Urban Development Authority (AUDA) under various Town Planning Schemes by way of reservation, are all scattered plots which cannot be used for expansion of the High Court, as it is desirable that all the facilities and buildings are provided in one complex which is possible only if the lands adjacent to the existing High Court complex are acquired. Even otherwise, the lands which are under reservation for a specific purpose under sanctioned TP Scheme are required to put to use only for the purpose for which they are reserved. The said plots are reserved under the Town Planning Scheme for various public purposes like garden, shopping center, school, commercial purpose etc. and the same cannot be used for the purpose other than the purposes they are reserved and even the Gauchar lands also cannot be used for any other purpose as the same is for grazing by cattle. It is to be noted that 62,000 sq.mtrs. of land are acquired for the expansion of the High Court in the first phase and Government land admeasuring 10,926 sq.mtrs. situated adjacent to the High Court complex is also to be used for the expansion of the High Court and therefore, it is not that inspite of the availability of the Government Waste land, the authorities have acquired the land of private persons only.
7. Identical question came to be considered by the Division Bench of this Court in the case of Mandoobhai Dadoobhai (supra) and after considering the decision of the Hon''ble Supreme Court in the case of
....This power to select is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). The Court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the properly of the executive and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset.
54. As stated above, the land in question and other lands acquired under the impugned notification are just adjacent to the existing High Court complex and therefore, they are selected for expansion of the High Court and therefore, it cannot be said that any illegality has been committed by the authorities in acquiring the said lands. On the contrary, the lands adjacent to the existing High Court complex are the most suitable land for expansion of the High Court. It is also required to be noted at this stage that there are no allegations of malafides made by the petitioners. It cannot be said that the land has been selected in breach of any of the constitutional provisions. It is not even urged that any of the constitutional provisions have been violated in selecting the land. Therefore, no case for interference with the decision of the Government/High Court in selecting the land in question.
55. It is also the contention on behalf of the petitioners that such a huge area of lands is not required for expansion of the High Court and/or sufficient land is available with the High Court which can be used for expansion of the High Court. The petitioners were already communicated with respect to the said aspect and the petitioners were also informed that as the lifts are terminated at third floor and on terrace there are heavy pipe lines for centrally air conditioned system, computers, water supply, fire fighting etc. are provided, there is no possibility of further vertical courtrooms on existing High Court. It is also required to be noted that vast area of land is required for 25 additional court rooms with chambers; 25 additional chambers for the High Court Judges; court rooms to accommodate minimum 100 persons; chambers and ante-chambers for High Court Judges, private secretaries'' room; central library, administrative block, committee room; storage room for stationery items; auditorium; building for Judicial Academy; administrative block; academy block; building for Gujarat State Legal Service Authority; High Court Legal Services Authority; post office; bank; advocate chambers; parking etc. It is also required to be noted at this stage that the total requirement for the aforesaid project of expansion of the High Court is 1,66,000 sq.mtrs. and in the first phase the land acquisition is approximately 62,000 sq.mtrs. on Southern and Western side of existing High Court Complex [acquisition in question] and in second phase expansion will be towards western side for acquisition of land approximately 1,04,000 sq.mtrs. Therefore, considering the aforesaid requirement of lands for expansion of the High Court, it cannot be said that there is no need and/or requirement to acquire the land in question.
56. How to put up construction and use the land acquired is to be considered by the appropriate authority. What is required to be considered broadly is whether there is any justification and there is a need to acquire the land for the public purpose or not and the same is required to be considered broadly. As stated above, there are no malafides alleged by the petitioners either in selecting the land in question or in respect to the area of the land acquired. It is also the contention on behalf of the petitioners that neither the High Court nor the Government Officer has provided informations in respect of the area of the court rooms to be constructed; area of the buildings for Judicial Academy, Legal Aid Services authority etc. area of the auditorium, area of the chambers; area of the Library etc. and in absence of such material, the subjective satisfaction has been vitiated. It is to be noted that after land is acquired, planning is to be made how to construct and what to construct; design and area of the buildings at the time of sending the proposal and/or at the time of acquisition such detailed particulars are not required to be furnished. As stated above, the broad requirements are to be considered. What is required to be considered is whether there is any justification and/or need and/or requirement to acquire the land for public purpose or not. After the land is acquired, all other aspects are to be considered by the acquiring body such as design and area of the buildings, court rooms etc. as per the requirement. Therefore, in absence of such detailed particulars, it cannot be said that subjective satisfaction to acquire the land in question for the expansion of the High Court has been vitiated. Looking to the requirements as a part of High Court expansion project, which are stated hereinabove, it cannot be said that there is no need or requirement of the land in question and/or the lands under the impugned notification. It is also required to be noted that the total requirement for expansion of the High Court is 1,66,000 sq.mtrs. against which the acquisition under the impugned notification is for 62,000 sq.mtrs. only in the first phase and further acquisition of 1,04,000 is to be made in the second phase which is in process.
57. It is also required to be noted that the first proposal was sent by the High Court on 4/5/2001; additional proposal in continuation of the earlier proposal dtd.4/5/2001 was sent by the High Court vide communication dtd.18/12/2003 and the State Government appointed high level committee on 9/2/2004 comprising of the Chief Secretary-Finance Department, Secretary-Legal Department, Secretary-Road & Building Department and the Registrar General, High Court of Gujarat for monitoring the expansion of the High Court and it was decided that the said committee shall function under the guidance of the Chief Justice of the High Court and the said committee has considered the requirements which are stated hereinabove and therefore, it cannot be said that there is non-application of mind with respect to the requirement of the land as a part of High Court expansion project.
58. It is also argued on behalf of the petitioners that after considering the remarks of the acquiring body, report u/s 5A was prepared by the Addl. Special Land Acquisition Officer and was sent to the District Collector on 26/8/2005 and the Collector thereafter sent its report u/s 5A to the State Government on 29/8/2005 for consideration of the State Government and the State Government took the decision to issue notification u/s 6 of the Act on 30/8/2005 and notification u/s 6 of the Act was issued on 30/8/2005 i.e. within one day only and therefore the decision has been taken in haste and there is non-application of mind on the part of the State Government to issue notification u/s 6 of the Act and therefore, the subjective satisfaction has been vitiated. It cannot be presumed that as the decision has been taken within one day there will always be a non-application of mind. In the present case, notification u/s 6 was published on 17/8/2004 and notification u/s 6 was to be issued within two years and said period of two years was to expire and therefore, the State Government was required to take decision immediately, otherwise, the acquisition would have been lapsed. We have perused the relevant files of the State Government and considering the notes and the decision making process, it appears to us that the State Government has considered the relevant materials while arriving at subjective satisfaction to issue notification u/s 6 of the Act and the decision is not required to be quashed and set aside on the ground that there is a non-application of mind and that the subjective satisfaction has been vitiated. At this stage, it is also required to be noted that looking to the entire file, it appears that the High Court all through out requested for invoking urgency clause to acquire the land in question, still it has taken approximately two years even after the notification u/s 4 of the Act and that too for a acquisition of the land for expansion of the High Court. This is how seriously the acquisition of the land for expansion of the High Court is considered by the State Government. Be that it may. We have perused all the files with respect to the decision making process with respect to acquisition of the land in question; of the Special Land Acquisition Officer as well as State Government, and as such we are satisfied that the procedure as required to be followed at the time of Section 5A of the Act, before issuance of notification u/s 6 of the Act by the Special Land Acquisition Officer and also at the time of taking decision by the State Government to issue notification u/s 6 of the Act to arrive at the subjective satisfaction, have been followed and the impugned notification u/s 6 of the Act is not required to be quashed and set aside. As stated above, it is not that only the petitioners'' land has been acquired along with the petitioners, under the impugned notification, the lands of other 14 land owners are also acquired and except the petitioners nobody has raised any objection; the entire acquisition proceedings have been completed; possession of the land in question is already with the High Court; award has already been declared and reference u/s 18 of the Act have also been submitted and except the petitioners, all other land owners have also accepted compensation. Even in the case of
59. For the reasons stated hereinafter, the petition is dismissed with exemplary costs which is quantified at Rs. 10,000=00.
60. By Civil Application No. 3460 of 2008, the petitioners have prayed for appropriate directions directing the respondents to produce following documents:
i. The report prepared by the Additional Special Land Acquisition Officer along with its accompanying documents dtd.26/8/2005. The said report is accompanied by the objections received u/s 5A from the various interested parties. The remarks of the Acquiring Body be also obtained dtd.10/2/2005.
ii. The decision referred by the State Govt. dtd.30/8/2005 u/s 6 of the Act.
iii. The requirement with the actual dimension forwarded by the High Court dtd.19/4/2001.
iv. The actual measurements and dimensions of the construction of 25 Additional Court rooms with chambers with allied facilities.
v. Additional Dimension and measurements of 20 Additional Chambers for the High Court Judges including the Ante-Chambers, Chambers for Secretary to the Hon''ble Judge and officers.
vi. The dimension of the Judges lounge, Central Library, Administrative Blocks, Committee Rooms, Storage Room, Auditorium and Judicial Academy with administrative blocks, Academy Blocks, facilities for Health Care and Recreation and Additional facilities for the Advocates, Parking area facilities, Banking facilities and Post Office.
vii. The requirement of Gujarat State Legal Services Authority, High Court Legal Service Committee and Dormitory for the Security staff.
61. It is required to be noted that the petitioners have sought measurement and dimension of the additional court rooms with chambers with allied facilities, dimension of and measurement of the chambers of the High Court Judges including ante-chambers, Chambers for Secretary to the High Court Judges, Central Library, Administrative Blocks, Committee Rooms, Storage Room, Auditorium, Judicial Academy with administrative blocks, Academy Blocks, additional facilities for advocates, parking facilities, banking facilities, Post Office etc. The said aspect has also been dealt with in detail and the petitioners are not required to be furnished the dimensions of the buildings etc. After acquisition of the land, as per the requirement the design, various complexes and facilities are to be constructed. The petitioners have unnecessarily sought the said informations/particulars. The petitioners have also sought report prepared by the Addl. Special Land Acquisition Officer u/s 5A of the Act along with accompanying documents dtd.26/8/2005. So far as the report u/s 5A of the Act is concerned, the said aspect has already been considered by the Division Bench of this Court in the case of Mandoobhai Dadoobhai (supra) and relying upon the decision of the Hon''ble Supreme Court in the case of
Thus, the report u/s 5A sent to the Government which is recommendatory in nature, the petitioners are not entitled to get the copy of the same and in the alternative, if the copy of the said report is not given to the petitioners, the same would not vitiate the acquisition proceedings. As stated above, the said Civil Application has been submitted in the midst of the submissions demanding irrelevant informations and hence the Civil Application No. 3460 of 2008 is also dismissed.
