Sanmukhbhai Bhikhabhai Patel and ors. Vs. State of Gujarat and ors. - Court Judgment

J.N. Bhatt, J.

1. The poignant proposition and main point in focus in this litigation revolves round:-

(i) What is the right and competence of erstwhile land-owners acquired for one Public Purpose and in the event of change in such Public Purpose?

(ii) Complete Divestation of right, title and interest in respect of lands acquired for one Public Purpose, mere upon change only of Public Purpose for the such lands, could give a rise to an enforceable right to restitution or return of acquired lands for erstwhile land-owners in absence of any statutory or Rule Provision, for reverting of it.

2. In this Group of 67 petitions, common question is involved. They are heard together and, therefore, upon request, we propose to deal with them and decide simultaneously by the common judgment. The petitioners, by invocation of the provisions under Article 226 of the Constitution of India, in this Group of 67 petitions, have sought for, writs or directions to the respondents for re-grant or return of the surplus unutilised acquired lands, which came to be acquired under the provisions of the Land Acquisition Act, 1894 ('ACT') long before, 18 years in 1986, by Consent Awards by the respondent No. 1-State of Gujarat for Gujarat Housing Board Schemes.

PREAMBULORY PROFILE:-

3. With a view to appreciate the merits of the petitions and the challenge against them, let there be first a skeleton projection of the relevant and important facts, leading to this Legal Battle.

i. The petitioners are some of the erstwhile land-owners whose lands were acquired for the Public Purpose for Housing Schemes of respondent No. 3, Gujarat Housing Board ('BOARD') by acquisition proceedings under the Act and by consent award under Section 11(2) of the Act, which were declared by giving 35% more price than market price as an incentive. The awards came to be declared, on 2nd November, 1989, in respect of 13,81,062 Sq.Mtrs. of lands in District of Surat, Gujarat State.

ii. Pursuant to the Consent Award, totally, 13,81,062 Sq.Mtrs. of land of Village:Kosad came to be acquired. The amount of compensation had been paid and received by the petitioners and possession was taken over by the Respondent-Authorities. Thereafter, respondent No. 3-Board, constructed 1257 dwelling units for Middle Income Group ('MIG') and Higher Income Group ('HIG') categories, approximately, on 2,02,002 Sq.Mtrs. of land. Remaining parcels of lands could not be used by Respondent No. 3-Board for change in circumstances and financial crunch and other administrative reasons, which lands are hereinafter addressed to, as `subject-lands' for short and convenience.

iii. Later, respondent No. 4, Surat Municipal Corporation ('CORPORATION') required the lands for rehabilitation of slum areas and for providing houses for Economically Weaker Sections of the society and that is how the Corporation approached the State Government. The State Government, in exercise of powers, conferred under Section 17-A of the Act, which came to be introduced by an amendment by Gujarat Act No. 20 of 1965, granted previous sanction to the use of the subject-lands. In exercise of the said statutory powers, the State Government had granted prior permission for transfer of the subject-lands to respondent No. 4-Corporation by its order, dated 11-09-2003. The permission was granted for transfer on conditions, which `inter-alia' included that respondent No. 4-Corporation is obliged to use the subject-lands for Public Purpose of building houses for the Economically Backward Classes of the society and for rehabilitation of the slum-areas and no any other purpose.

iv. Respondent No. 4-Corporation, by a Resolution No. 100 of 2004, passed by the Standing Committee, on 29-07-2004, resolved to purchase the subject-lands, as per the communication manifested in letter dated 11-09-2003.

SHORT PETITIONING PROFILE

4. The common but serious contention of the petitioners has been, that since the subject-lands have not been utilised for the Public Purpose by respondent No. 3-Board and again, the Board, having decided to abandon its purposes of further construction of houses for the Housing Schemes out of lands acquired under acquisition in 1986 being and forming the subject-lands, upon having decided not to construct, on the subject-lands, they have right to be re-granted or restitution of the lands, as erstwhile owners of the subject-lands, upon offering to pay the market-price or on such other terms and conditions, as deemed just and necessary by the respondents. They claimed re-grant or return of the land, as erstwhile land-owners, on the ground that their acquired lands had not been utilised for a long period for Public Purpose by respondent No. 3-Board and, thereafter, the subject-lands are transferred to respondent No. 4-Corporation on payment of consideration, which is not sanctioned by law.

5. The petitioners, also, addressed various letters to the respondent-authorities to show their willingness to take back the subject-lands by offering market-value at Rs. 335 per Sq.Mtr., alleging that the transfer of lands by respondent No. 3-Board to respondent No. 4-Corporation is unlawful and without any authority. They contended that respondent No. 4-Corporation had agreed to purchase the subject-lands at the rate lower than Rs. 335 per Sq.Mtr. offered by the petitioners. Thereafter, there was an exchange of notices since the respondent-authority did not agree to the request of the petitioners for re-grant of the lands of the petitioners even at the market-price. They have, therefore, now, invoked the constitutional writ redressal for getting the subject-lands in capacity of original owners of land i.e. erstwhile land-owners, by invocation of Article 226 of the Constitution of India.

DEFENSIVE ARMOURY OF THE STATE

6. The respondent-authorities, virtually, have raised common contentions. According to their contentions, the petitioners have no right to seek re-grant or return of the subject-lands, as the lands have, fully, vested in respondent No. 3-Board, upon payment of compensation, based on consent awards and have no possession and, therefore, legally, it is open for the respondent-authority to transfer the acquired lands for any other Public Purpose. In that, it is further pleaded that under Section 49 of the Gujarat Housing Board Act ('G.H.B.Act') and Rule 10(3) of the Gujarat Housing Board Rules ('G.H.B.Rules'), the Public Purpose can be changed and the lands belonging to the respondent No. 3-Board can be given away for Public Purpose to respondent No. 4-Corporation. It is, also, contended that the provisions of Section 17-A of the Act is, rightly, invoked and by virtue of statutory powers under Section 17-A of the Act, respondent No. 3-Board, with the previous permission, of respondent No. 1, State of Gujarat, is entitled to give away or transfer subject-lands, according to permission, for transfer of subject-lands to the respondent No. 4-Corporation, for the use of any other Public Purposes. In short, the common contention raised by all the respondents has been that the petitioners have no right, title or interest or any authority to seek re-grant or restitution much less by invocation of the constitutional writ remedy and that too, after lapse of long 18 years.

MARATHON FORENSIC SUBMISSIONS

7. On behalf of the petitioners, Mr.Anil Diwan, learned Senior Counsel, has contended that the refusal of the respondent-authority to re-grant the subject lands to the erstwhile owners, despite non-utilisation of the acquired land for a long period by respondent No. 3-Board and thereafter, transfer of subject-lands on payment of consideration to respondent No. 4-Corporation for another Public Purpose other than one with which the acquisition was made, is not legal and sustainable and, therefore, petitioners are entitled to re-grant or return or re-allocation of subject-lands.

8. In that, he has, also, forcefully, contended that now-a-days it has become rampant practice of the Government to acquire more lands than required for its alleged Public Purposes and which remain idle and unutilised for a long period; thereafter, such lands are sought to be utilised by transfer to other Public Purpose, without even following principles of natural justice and depriving the erstwhile land-owners from the re-grant of the land even at the market-price and such practice requires to be discouraged, and deprecated being not legal.

9. In support of his vehement and vociferous contentions, he has, also, contended that the provisions of paragraph 328 of the Land Acquisition Manual ('MANUAL') and the Government Resolution dated 31st August, 2001, ('G.R.') and has contended that they are designed to project effectiveness of the provisions contained in paragraph 328 of the said Manual. It is, therefore, submitted that by virtue of the said provisions and the Resolution of the State Government, a right has been created in favour of the erstwhile-owners for re-grant or return of the acquired land. It is, also, strongly, pleaded that if the purpose is changed and the lands are not utilised for original Public Purpose, by the acquiring authority, the modern jurisprudential innovative interpretations demand that erstwhile owners are entitled to re-grant or restitution of the said parts of land, being subject-lands. In support of this submission, he has placed strong reliance on the case-law to which reference will be made by us, hereinafter, at an appropriate stage, as and when required.

DENOUNCING VOICE OF RESPONDENTS

10. On behalf of respondent No. 4-Corporation, learned Counsel, Mr.S.N.Shelat, has, strongly, refuted and countenanced pleas of the petitioners and has defended the action of transfer of land by respondent No. 3-Board to respondent No. 4-Corporation, and advancing the relevant case-law and provisions, vehemently, countenanced the submissions raised on behalf of all other petitioners, as well. It is further contended by him, that the petitioners, who are the original-owners of the land, are not entitled to re-grant or return of the land as they have no legal right, title and any interest in subject-lands. His submissions are adopted and endorsed, virtually, by the learned Advocates appearing for the other respondents. On behalf of the respondents, several decisions are relied on, which will, also, be referred to by us, hereinafter, as and when required, at an appropriate stage in course of discussions and evaluation of merits thereof.

11. In short, the common contention has been that in view of the provisions of Section 17-A of the Act, it is competent and legal for respondent No. 3-Board, with the consent of respondent No. 1-State of Gujarat, to transfer and dispose of the subject-lands, in favour of respondent No. 4-Corporation, for Public Purpose, on payment of consideration. It is, also, contended that the provisions of paragraph 328 of the Manual are not having any statutory force; it is a Manual, and, therefore, it is a compendium of executive instructions. It is in this context, it is further contended that no right can be created under the provisions of paragraph 328 of the Manual, and the said G.R. of the State Government, when statutory provisions of Section 17-A of the Act empowers the State Government to give previous permission for transfer of land for any other Public Purpose. It is, also, submitted that the lands are to be utilised for the purpose of rehabilitation of the slum-dwellers and housing of weaker sections of society that too for the genuine Public Purpose and that, it is in this context, there is no illegality or violation of the provisions of law, as alleged. Thus, the action of respondent No. 3-Board in transferring the part of the acquired land (subject-lands) for consideration to respondent No. 4-Corporation for noble Public Purpose is sought to be fully justified.

LEGAL CORNELS OF SECTION 17-A OF LAND ACQUISITION ACT, 1894, SECTION 10 OF GUJARAT HOUSING BOARD ACT,1961, AND GUJARAT HOUSING BOARD RULES, 1977 THEREUNDER:

12. Section 17-A of the Act came to be introduced by way of an amendment in Gujarat by Gujarat Act, No. 20 of 1965, which is very relevant and material in view of the points in focus. It deals with the use of land for any Public Purpose that is permitted. It empowers that when any land vests in the State Government or any Corporation owned or controlled by the State, the Government, under the provisions of this Act, is, legally, competent and authorised, with the previous sanction of the State Government, to use such land for any other Public Purpose than for which the possession of the land had been taken. It becomes, therefore, clear that in the State of Gujarat, by virtue of such an amendment, in the event of any change for the use of the acquired land for any other Public Purpose, the transfer can be effected, provided the State Government gives previous sanction for such a transfer for use of Public Purpose.

13. Section 49 of the G.H.B.Act authorises the Board to dispose of the land or any other property of the Board. Statutorily, Sub-rule 3 of Rule 10, incorporated in, Chapter-IV of the G.H.B.Rules, also, empowers the Board for disposal of such property. The only embargo placed on the Board is that for the disposal of such immovable property or its transposition, prior approval of the State Government, must be obtained. So, the combined reading of the provisions of Section 49 and Rule 10(3) authorises the Board to transfer the immovable property meant for Housing Schemes with the prior approval of the Government. Respondent No. 3 is a Government of Gujarat undertaking, whereas Respondent No. 4 is Municipal Corporation, a Local Authority for the City of Surat, governed by Bombay Provincial Municipal Corporations Act, 1949 ('B.P.M.C.Act').

Section 49 of the G.H.B Act reads as under:

'49.Power to dispose of land - The Board may retain, lease, sell, exchange or otherwise dispose of, any land, building or any apartment therein or other property vesting in it and situate in the area comprised in any housing scheme sanctioned under this Act.'

Rule 10 of G.H.B.Rules, 1977, reads as under:

'10. Disposal of property:-

(1) Any land vesting in the Board may be transferred by the Board to the State Government and when such transfer is made, the loans advanced by Government to the Board shall be reduced to the extent of the purchase value of the land so transferred plus the charges incurred on the establishment for its maintenance and on its development.

(2) Any building vesting in the Board may be transferred by the Board to Government and when such transfer is made, the loans advanced by Government to the Board shall be reduced to the extent of the cost of building so transferred plus the charges incurred on the establishment for its maintenance but less a reasonable amount to be deducted on account of depreciation.

(3) Subject to the provisions of sub-rules (1) and (2), the Board shall not lease, sell, exchange, mortgage or otherwise dispose off any immovable property vesting in it and situate in the area comprised in any housing scheme sanctioned under the Act, without the prior approval of Government. Such transfer shall be subject to such terms and conditions as Government may determine in each case in that behalf:

Provided that in the case of a lease, the Board shall communicate to Government, the terms and conditions of the proposed agreement and if no approval is received by the Board from Government within thirty days from the date of receipt of such communication by Government, the Board may proceed to settle the proposed agreement as if Government has approved of the proposed:

Provided further that no such approval shall be required:

(a) for allotment of tenements and premises according to the regulation made by the Board in that behalf:

(b) for leasing any vacant land for a period not exceeding two years at a time; and

(c) for sale or demolition of any building or structure, which is in a dangerous condition or beyond repair.

14. Accordingly, the agreement was reached between respondent No. 3-Board and respondent No. 4-Corporation. Respondent No. 3-Board has stated that out of 1257 units, more than 1000 dwelling units remained unoccupied and that is the reason why respondent No. 3-Board abandoned further execution of the Housing Schemes, as a result of which, more than 11,79,000 Sq.Mtrs., the subject-lands situated at Village: Kosad, remained idle and unutilised for years together, and since respondent No. 4-Corporation was willing to purchase the land, for noble Public Purpose there was an agreement between them for the purchase and sale of the subject-lands, subject to the amount of consideration to be determined by the State Government, while giving the approval and on condition stipulated in the Resolution, which was passed by respondent No. 3-Board, on 27-02-1999, being Resolution No. 85 of 1999 in respect of transferring the lands to respondent No. 4-Corporation.

15. Subsequently, the request was made by respondent No. 3-Board in this behalf, along with its Resolution No. 85 of 1999, to respondent No. 1-State, on 12-03-1999, for its sanction. Unfortunately, respondent No. 1-State took three years to take the decision and finally, respondent No. 1-State, granted approval to respondent No. 3-Board for transfer of the subject-lands to respondent No. 4-Corporation on the terms and conditions contained in the Sanction Order dated 11th September, 2003, permitting the transfer of land, admeasuring 11,78,976 Sq.Mtrs. situated at Kosad ('subject-lands'), to respondent No. 4-Corporation, at the price of Rs. 300 per Sq.Mtr., as argued in view of the Sanction Order on the terms contained, therein, which we have, dispassionately, seen and examined, screened and evaluated threadbare.

COMPLEXION OF CHANGED PUBLIC PURPOSE ON TRANSFER OF SURPLUS ACQUIRED LAND

16. It is, also, pertinent to refer here, at this juncture, that respondent No. 4-Corporation through its Standing Committee passed Resolution No. 482 of 2003 in its meeting, held on 13-03-2003, for the purpose of availing and obtaining subject-lands for the purpose and object of rehabilitation of slums and housing for weaker sections. It is borne out from the record, evidently, that there are about 16,058, slums in the city of Surat. Again, the Standing Committee of respondent No. 4-Corporation considered the decision of the respondent No. 1-State in its meeting, held on 28th May, 2004 and 29th July, 2004 and resolved to accept the transfer of land proposed by respondent No. 3-Board to it i.e. respondent No. 3-Corporation, on the terms and conditions stipulated in the Sanction Order of respondent No. 1-State. It is, also, necessary to highlight, at this juncture, that the petitioners and other similarly situated persons had made various representations to the respondent-authorities for making their claims for re-grant of the lands to them and while expressing their willingness to pay the market-price of the land at the rate higher than the price which was determined by respondent No. 1-State.

17. Apart from the fact that there are number of slums in the city of Surat as highlighted in a Tabular Form, hereinafter, and apart from other statutory provisions in the B.P.M.C.Act, our attention is, also, invited to Article 243W of the Constitution of India, which prescribes powers, authority and responsibilities of Municipalities, etc., whereby, the legislature of the State is empowered by law to endow the Municipalities with such powers and authority, `inter-alia' including the provision for the constitution of a Committees with such powers and authority, as may be necessary, to enable them to carry out the responsibilities conferred upon them, including those in relation to matters listed in the Twelfth Schedule. Items shown in the Twelfth Schedule are seen by us. Item No. 9 provides for the provision for safeguarding the interests of the weaker sections of society, including the handicapped and mentally retarded, whereas Item No. 10 relates to the slum improvements and upgradation. Section 66 of the B.P.M.C.Act, also, provides for matters, for which provisions can be made or actions can be taken by the Corporation, at its discretion, in which Item No. 36 is pertinent to mention, as it makes the provisions of shelter to destitute and homeless persons and in any form to poor relief.

DESIGN AND LEGAL STATUS OF PARA 328 OF MANUAL AND G.R.

18. Much reliance has been placed on the provision made in paragraph 328 of the Land Acquisitional Manual ('MANUAL'), which cannot be pressed into service on the following grounds:

i. That the Manual, as such, is not a law, as defined in Article 13 of the Constitution of India. Paragraph 328 is, thus, defined not having any statutory force. It is a compendium of administrative instructions. Obviously, therefore, it would not assume the statutory sanction or strength and, therefore, in such cases cannot be enforced when statutory provision are otherwise.

ii. It is in the nature of guidelines and such guidelines, as such, have been made for use by the Land Acquisition Officers, for the Administrative Mechanism and purposes if so decided to be used in a given situation as provided in paragraph 328 of the Manual itself.

iii. It has been observed by the Hon'ble Apex Court in paragraph 42 of 'State of U.P. v. Johri Mal, A.I.R. 2004 (SC) 3800', in respect of a Manual meant for Legal Remembrancer, that it may be true that the Legal Remembracer Manual provides for renewal but it contains executive instructions which even do not meet the requirements of clause (3) of Article 166 of the Constitution and, therefore, the Legal Remembrancer Manual is not a law within the meaning of Article 13 of the Constitution of India, placing reliance on the 'Union of India v. Naveen Jindal and Anr., 2004 (2) JT (SC) 1.'

19. Even if it is assumed to be attracted to the facts of the case, then, also, in order to earn the benefits of the said provision contained in the Manual, the person seeking such benefits is obliged to establish the requisite conditions in paragraph 328 of the Manual. The said paragraph reads as under:

Paragraph 328: Disposal of land

If the Railway or the other applicant does not find it necessary and relinquishes the land, or when Government relinquishes the land acquired for its own purposes, then the following rules shall apply:

(1) If the land used for any purpose is acquired and such land is determined to be disposed of and if such land is vested in the State Government for disposal, then, it is not necessary that such land be necessarily restored to the person or persons or amongst them to the major interest holding persons or their interested representatives, except that if the concerned persons are landless, and from other resources, the annual income of such person is not more than Rs. 1800/=, then in such an instance, land may be granted to such landless persons with low income on acceptance of the value, equivalent to the amount of compensation paid for acquiring the land or present market-value of the land, whichever is higher.

(2) These orders shall not be applicable to non-agricultural lands or lands having non-agricultural potentiality, and such lands should be continued to be disposed of as done before uptil now, that is in such cases for the disposal of the land vested in the State Government such non-agricultural lands or the land with non-agricultural potentiality, then the occupation rights, at the first stage, if there are no other particular reasons, then the procedure for handing back the said lands to the person or persons from whom such land had been acquired or to those amongst them holding major interest or their interested representatives [Government Resolution No. 9886 dated 08-10-1908]. The value of these lands, should be equivalent to the amount of compensation paid or the existing market value, whichever is higher. 20. Upon fulfillment of these conditions, the exceptional provision made in paragraph 328 pertaining to the disposal of acquiring land can be invoked. In our opinion, from the factual profile emerging from the record of the present Group of Petitions, no such clear plea and evidence is noticed or even spelt out. Therefore, alternatively, also, bold but not beautiful plea on the basis of paragraph-328 of Manual is, also, mertiless.

21. The ground that respondent No. 4-Corporation has other available lands in the city of Surat and failure on the part of respondent No. 3-Board to executing the Housing Schemes, as per the Public Purpose, under which the land came to be acquired, the transfer of land by respondent No. 3-Board to respondent No. 4-Corporation, cannot be said to be in any way just and legal and permissible. This submission, at the best, could be said to be an appeal to the heart, rather than the head. We are concerned with the settled proposition of law under which the petitioners could, successfully, claim for re-grant in the event of change of Public Purpose and use of the acquired land for another Public Purpose. No such statutory provision is pointed out. It cannot be said, even for a moment, that the transfer by respondent No. 3-Board, to respondent No. 4-Corporation of the subject-lands out of the acquired lands, is not for the Public Purpose. The change of Public Purpose does not `ipso-facto' re-invest title to the divested erstwhile owners of the lands under the Act. At the same time, the entire statutory mechanism of the Act and the concept and philosophy of the land acquisition for Public Purpose is for ameliorating social and economic conditions of the weaker sections of the society or for augmentation and of the betterment of the rights of downtrodden and have-nots, dejected and rejected, oppressed and suppressed, class of society, including slum-dwellers and shelterless, indigent and illiterate masses as well as for any Public Purpose for the societal interest.

22. No doubt, the expression 'Public Purpose' has not been statutorily defined, but it varies in its shades and colours of its complexion and it is like `polymorphous', which means `different meanings in different contexts' and the concept of Public Purpose changes with the change in societal values and interests and from time to time, depending upon the changed circumstances, as well as, the requirements of the members of the society. It is, rightly, said nothing is static except concept of change.

LEGALISTIC ROLE OF POWERS OF SECTION 17-A, LAND ACQUISITION ACT, 1894.

23. Section 17-A of the Act, in unequivocal terms, provides that the use of acquired land for any Public Purpose permitted, and could be changed. It is clear from the plain perusal of the said provision, which reads as under:

'17-A. Use of land for any public purpose permitted - When any land vests in the State Government or in a Corporation owned or controlled by the State Government under the provisions of this Act, it shall be lawful with the previous sanction of the State Government, to use such land also for any public purpose other than that for which its possession was taken.' 24. The land came to be acquired for the Public Purpose of implementing and executing the Housing Schemes in terms of the provisions of the G.H.B.Act. That purpose, for the reasons stated hereinabove, could not be achieved. Therefore, under the statutory provisions, respondent No. 3-Board with the previous sanction of the respondent No. 1-State, in terms of provision of Section 17-A, transferred the land to respondent No. 4-Corporation. Upon consideration fixed by the State Government in the Sanction Order along with other terms and conditions attached therewith, respondent No. 4-Corporation has purchased the lands for the purpose of the construction of houses for the slum-dwellers and clearance of slums in the city of Surat, which has, reportedly, as many as, 300 in number. In this regard, it would be appropriate to produce the following details furnished by respondent No. 4 pertaining to Surat Municipal Corporation:

I. Decadal Growth Rate - Surat Municipal Corporation Year Population Decadal Growth Rate (In Lacs) (In percentage) As per Census 1981 07.76 1991 14.98 93.04 2001 24.38 62.75

II. Summary of Slum Rehabilitation Requirement - Surat Municipal Corporation Total number of slum pockets - 305 Total population living in slums- 6 Lacs (Actual figures approximately - 7 Lacs) Total families - 1.20 Lacs (1.28 Lac) Average land requirement per family- 30 Sq.Mtrs. Total land requirement (128000 x 30)- 3840000 Sq.Mtrs. Only for residence - 384 Hectares Infrastructure requirement (@ 12%) - 40 Hectares App. Other social amenities (like school, heath centre, etc)- 20 Hectares Total land requirement - 444 Hectares. (Say 450 Hectares) 25. It is competent for respondent No. 3-Board to transfer such lands in terms of the provisions of Section 49 of the G.H.B.Act read with Rule 10 (3) of the G.H.B.Rules and coupled with the consideration of the provisions of other aforesaid statutory and constitutional provisions and prescriptions. The local authority or the self-government, which is respondent No. 4-Corporation had, also, made an application to construct houses for weaker sections of society and, also, for the clearance of slums, and, therefore, a deal, between respondent Nos. 3 and 4 for transfer of surplus acquired lands, for which the petitioners have made claim for re-grant, is executed and that is done after obtaining the previous statutory sanction of the State Government, as contemplated under Section 17-A applicable, from respondent No. 1-State.

SCREENING AND SCRUTINY OF CASE-LAW

26. Our attention has been invited to the decision of this Court and it is contended that the petitioners have no legal right to claim for re-grant or restitution of land even on offering to pay market-price of the subject-lands as per the decision of Division Bench of this Court rendered in 'Keshavbhai Khimjibhai Dhanani v. State of Gujarat in Special Civil Application No. 9251 of 1997 and Ors.' decided on 11-11-1998. Relying on this decision, it has been contended, on behalf of the respondents, that the said decision is, fully, attracted to the facts of the present case. It was held by this Court in that case that the claim for re-grant or restitution of surplus acquired land made by the original-owners cannot be entertained or granted, as there is no statutory provision in support of such a claim.

27. This Court had, also, an occasion to consider the provisions of paragraph 328 of the Manual. The observations and the conclusions reached in paragraphs 21 and 22 in the said decision are pertinent and very relevant, which, fully, reinforce the view, which we are inclined to take. The claim for re-grant of the land in that decision was found to be devoid of any merit in view of the provisions of Section 17-A of the Act. In this decision, reliance is, also, placed on the decision of the Hon'ble Apex Court rendered in 'C. Padma and Ors. v. Deputy Secretary to the Government of Tamil Nadu and Ors., (1997) 2 SCC 627.' The Apex Court, in that case, had, clearly, enunciated that, after the claimants were paid compensation and the lands vested in the State, the erstwhile owners of acquired lands-claimants, were not entitled to restitution of possession on the ground that either the original Public Purpose has ceased to be in existence or land could not be used for any other purpose. The decision of the Hon'ble Apex Court in C.Padma's case (supra) and ratio propounded therein, will apply, squarely, to the facts in this Group of Petitions.

28. Similar view was taken by the Hon'ble Apex Court in 'Chandragauda Ramgonda Patil And Anr. v. State of Maharashtra and Ors., 1996 (6) SCC 405 : JT 1996 (9) S.C. 258.' This Court has, also, taken a similar view in 'Manibhai Gulabbhai Vashi v. State of Gujarat in Special Civil Application No. 7740 of 2000 on 28-08-2000.' In this case, also, C.Padma's case (supra) is relied on and the claim, which is similar to the claim of petitioners was rejected in view of the provisions of Section 17-A of the Act, applicable to the State of Gujarat. The relevant and pertinent observations are made in paragraph 7 of the said decision.

29. On the other hand, on behalf of the petitioners, the reliance is placed on the decision of the Division Bench of this Court in 'Subodhchandra Gulabbhai Desai v. State of Gujarat in Special Civil Application No. 7789 of 1999', rendered, on 08-03-2001. We have given our anxious thoughts and considerations to the propositions laid down in the said case. In our opinion, the said decision is not at all attracted in the present Group of Petitions. It was rendered in the peculiar and special facts of that case, which is very evident from the observations made in paragraph-14. The reliance on Manual and Circular, which is made, in this Group of Petitions, was, also, made on behalf of the petitioners in that group of cases. In that context, it has been observed in paragraph-14 as under:

'14. So far as the Manual and Circulars, to which reference has been made by the learned Counsel for the petitioners, are concerned, it is very clear that the regrant of the land is possible under the provisions of this Manual and the Circulars, etc. only when the Government takes a decision that the land is not required by it and the Government itself decides to abandon the land, which was acquired. Therefore, the decision of the Government with regard to the abandonment of the land and that the land acquired is not required by it is a condition precedent for involving such provisions as are contained in the Manual and Circulars. In the facts of the present case, as have been placed on record, it appears that a substantial part of the land has already been utilised and rest of the land is in the process of being utilised. Thus, there is no question of any direction for regrant of the land at this stage, when there is no decision by the Government that the land, which is the subject matter of this petition and which has been acquired long back, is abandoned and is not required. The opinions on which reliance was placed are in fact not relevant for the purpose of deciding the controversy of regrant. Unless a decision is taken by the Government that any part of it is not required or that it seeks to abandon the land, the request for regrant cannot be accepted and so far as this Court is concerned, it finds that the petitioners have no enforceable right to claim regrant. If at all the Government at any point of time comes to the conclusion that it seeks to abandon any part of the land, which was acquired in the year 1961, which is the subject matter of this petition, or that the Government abandoned this land, the request of the petitioners may be considered by the Government in accordance with the relevant provisions contained in the Manual and the relevant Circulars.'

30. It is very clear that the entire factual profile was different. In the present Group of Petitions, admittedly, there is a transfer of land for another Public Purpose and there is no conscious or any remote decision to abandon the acquired land by the concerned authorities which could not be utilised. In our clear opinion, learned Senior Counsel, Mr.Diwan, is not in a position to make any capital out of the proposition enunciated in that decision.

31. It will be interesting and pertinent to highlight the proposition of law for such claim, enunciated by the Division Bench of this Court, in 'Special Civil Application No. 7226 of 2001' in the case of 'Narottambhai Nathubhai Patel v. Special Land Acquisition Officer (G.H.B.)', (wherein, one of us, Dr.J.N.Bhatt,J., happened to be a party) decided, on 20-12-2001, considered the provisions of Section 17-A of the Act, applicable to the State of Gujarat, Section 49 of G.H.B. Act, 1961, providing for disposal of its property, Rule 10 Sub-rule (3) of the G.H.B.Rules, 1977, and Section 48(1) of the Act and the decision of Division Bench of this Court in 'Special Civil Application No. 1957 of 2001' rendered on 19-03-2001, wherein, similar claims were raised, in similar cases which were summarily rejected, finding without merits.

32. It has been, succinctly, propounded in the above case, that the transfer of acquired land under the Act, for a different purpose, is legal and valid in terms of provisions of Section 17-A of the Act and, merely, upon a change of public purpose for which the lands were acquired by the Government for G.H.B. to a Trust for another public purpose for use of the same for the Medical College by the University with the previous approval of the State of Gujarat is justified and legal and the erstwhile owners of the the acquired lands are not entitled to re-grant or re-allotment of the subject-lands, merely, upon a change of public purpose for which the lands were required, which is, precisely, the main point in focus in this Group of Petitions and, therefore, the said decision is, squarely, attracted to the facts of the present group of Petitions. It is, also, jointly, stated that the Division Bench decision in 'Narottambhai Natubhai Patel v. Special Land Acquisition Officer (G.H.B.)' was, unsuccessfully, further challenged in 'Special Leave to Appeal (Civil) No. 9039 of 2002', wherein the decision was rendered, on 06-05-2002, by the Hon'ble Apex Court, dismissing the Special Leave Petition.

33. In 'Narottambhai Natubhai Patel v. Special Land Acquisition Officer (supra)', the reliance was, also, strongly, placed on the decision of the Hon'ble Apex Court in 'Bhagat Singh v. State of U.P., AIR 1999 SC 436', wherein it has been, clearly, propounded that the acquisition of land for the public purpose need not necessarily be for the type of user-permitted even in the Master Plan at the time of acquisition and such an event would not invalidate the acquisition. That is how the claim made by the erstwhile owners of the acquired land came to be rejected upon consideration of the said factual profile and relevant legal propositions holding that the claim of right to return or restitution or reallotment of the subject-lands acquired for other public purpose in such a situation is not legal, valid and justified. Our view is, also, therefore, fully reinforced by the said decision.

INCUMBENCY AND PREREQUISITES FOR INVOCATION OF PARA-328 AND CIRCULAR DATED 31-08-2001 RELIED ON, AND CASE-LAW

34. It becomes very clear that the invocation of the provisions of the aforesaid paragraph 328 of the Manual, by the erstwhile owner of the acquired land, is permissible, only, upon fulfilment of the following conditions and characteristics therefrom, as, otherwise, when land is acquired and used for any public purpose, after acquisition and upon vesting of such land in the State for disposal, then it is not necessary that such land should be restored to the erstwhile owner or their representatives:

i. That there should be a decision of the Acquiring Competent Authority or the Government to relinquish such acquired lands on finding that the same is not required to be used for its own use or any other public purpose. Thus, conscious decision of the Government to dispose of the acquired lands is necessary in the event of surplus acquired land remaining unused;

ii. That such lands are non-agricultural lands or lands having non-agricultural potentiality;

iii. That such persons are ready to pay the value equivalent to the amount of compensation paid for acquisition of such lands or the prevalent Market Value of the land, whichever is higher; and,

iv. That the concerned persons, seeking the return or restitution of acquired land, are landless or the annual income of such person is not more than Rs. 1,800/=.

35. It is, therefore, very evident and explicit from the plain tenor and text of the said paragraph that ordinarily, and generally, if the land, used for any purpose, is acquired, and later on, as when such land is determined to be disposed of, and if such land is vested in the State Government for disposal; in that eventuality, it is not incumbent upon the Government or the Authority concerned to restore or to return such land to the erstwhile owners of the acquired land or their representative, as there is clear divestation of right, title and interest in the acquired land, from the owners, and complete vesting of right, title and interest, in the Government or Authority. It is for the authority concerned or the Government to use the acquired land for any purpose.

36. The Government or the Acquiring Authority is empowered to return or re-allot such acquired land to the erstwhile owners on certain conditions. Upon exercise of discretion, surplus and unused acquired land can be disposed of. There is no incumbency upon the concerned authority to return such unused and surplus acquired land. As we understand, the entire existing mechanism for acquisition and the real object and design of the Act, meant for acquisition of land for public purpose, does not even, remotely, prescribe or provide for return, restitution or reallotment of the acquired land to the original owners. Otherwise, also, a transfer of right, title and interest in the acquired land, upon vesting of the property by operation of law, cannot be reversed, as a matter of right, to the erstwhile owner, as, jurisprudentially, there is total extinction of the right, title and interest of the erstwhile owner until a legally enforceable right is created in favour of the erstwhile owner by any provision, enactment or rules and in absence of any Policy of Government. Thus, there must be a legal sanction for the enforcement of the right as expounded in 'Narottambhai Natubhai Patel v. Special Land Acquisition Officer (supra)'. As such, no other such statutory provision or Rule-Power in this is pointed out. Aforesaid paragraph 328 of Manual and the G.R. provisions are not statutory and we have, extensively, dealt with them. Then, what can be enforced by Writ Jurisdiction?

37. In the later decision dated 11-02-2004, the Division Bench of this Court, in 'Krishnamurarilal G.Agrawal and Ors. v. Union of India, GLR 2004 (2) 959' (wherein of us Dr.J.N.Bhatt, J. was a party), held that the original land-owners are not entitled to the restitution or re-grant of the land even if the land is not used for the purpose for which it was acquired. The clear and correct proposition of law relevant to the facts of the Group of Petitions on hand has been again reiterated in this decision, relying on the aforesaid decision of Hon'ble Apex Court. In that case, the acquired land was utilised by the Central Government in favour of the State Government and the State Government intended to use it either for the establishment of the Judicial Academy or for any other Public Purpose. In that context, it was observed and was held that the restitution-claim cannot be entertained or granted, merely because there is change of Public Purpose. In this decision, reliance is, also, placed on the provisions of Section 17-A and the proposition of law enunciated therein, by virtue of the provisions contained in Section 17-A of the Act, the State Government can make use of the subject-lands for any other Public Purpose, despite the fact that there was dispute, as to whether the land had vested as such in the State Government or not, as it was utilised by the Central Government for which the acquisition was made.

38. The reliance was, also, placed on a decision of the Supreme Court rendered in Patil's case (supra), wherein, it was held that the land acquired for Public Purpose can be utilised for any other Public Purpose. Once the possession of acquired land is taken, the land vests in the Government and or the Acquiring Authority, free from all encumbrances. Then, it is not intended that any land, which remained unutilised, should be restituted to the erstwhile owner to whom adequate compensation was paid, according to the market-value as on the date of the notification. Here, in the present Group of Petitions, consent awards came to be passed and admittedly, for that 35% more amount than prevalent market price came to be paid as an incentive given by the concerned authority.

39. On behalf of the petitioners, learned Senior Counsel, Mr.Diwan, has, also, placed strong reliance on the decision of 'Padma v. Hiralal Motilal Desarda And Ors., (2002) SCC 564'. The observations made in paragraphs 30 and 31 of the said decision are emphasised and strongly placed in focus to reinforce the claim of the petitioners for re-grant of the subject-lands. The second decision, which is relied on, is 'Tulsi Cooperative Housing Society, Hyderabad And Ors., v. State of Andhra Pradesh And Ors., 2000 (1) SCC 533', wherein, the observations that the land must be utilised for the purpose for which it was acquired, is highlighted by the learned Senior Counsel for the petitioners. This decision is not attracted to the facts of the Group of Petitions on hand.

40. Again, on behalf of the petitioners, relying on the decision of 'Savitri Devi v. State of Haryana And Ors., 1996 (7) SCC 729', it is contended that wherever the claim of land holders for re-grant is made of the land, which is not utilised after the acquisition, the claim has to be considered, subject to the conditions and guidelines provided in the land-policy of the Government. In this connection, again, the reliance is placed on the provisions of paragraph-328 of the Manual. We have, already, dealt with the legal use and correct applicability of paragraph 328 of the said Manual. This decision, therefore, is of no avail to the learned Senior Counsel in the present Group of Petitions. The proposition, that the land should be used for the Public Purpose for which it was acquired, can hardly be questioned. The issue is, as to whether, out of the acquired land, the subject-lands, that have remained unutilised, could be put to any other public use or not, against the claim of the re-grant of the subject-lands to the erstwhile owners in the light of statutory mechanism in general and special provision made in Section 17-A of the Act, applicable to the State of Gujarat. In this connection, as observed by us, hereinbefore, the statutory mechanism is provided for in the provisions of Section 17-A, which is applicable to the State of Gujarat, and, therefore, the claims in petitions are unmerited and deserve to be rejected in `toto'.

41. Placing reliance on 'Bhimappa v. State of Mysore And Ors., 1987 (Supp) SCC 28', it has been contended that it was held in that case that so long as the Government Order remains in force and even if it may be considered to be without any statutory sanction or force, the claim, for re-grant of the land unutilised out of the acquired land, is emanated in favour of the erstwhile owners. In the light of the Government Order and the Circular of respondent No1.-State, the provisions are not applicable to the facts of the present case, as observed hereinbefore by us. In Bhimappa's case (supra), it has been held that if all the conditions for re-grant, as per the Government Order under instructions, had been satisfied, the right of erstwhile owner of the acquired land, without any good ground, cannot be denied, as otherwise it would tantamount to discrimination. Again, the facts situational profile in Bhimappa's Case (supra) and the facts situational profile in the present Group of Petitions are not the same. In that case, the State Government has passed the Order, making the grant of land to another person without considering the claim of original owners and without being tested on Judicial Review. The erstwhile owners of the land were found to have not satisfied the requisite conditions for the re-grant of the land stipulated under the Government Order under consideration in that case. So, the set of facts in the present Group of Petitions, also, does not admit the acceptance of such submission raised on behalf of the petitioners in this Group of Petitions.

42. The Circular dated 31-08-2001 issued by the Revenue Department of the State Government, is in vernacular - Gujarati and placed on record as at Annexure-L, page 90 to the petition, is also placed in focus and it is, also, strongly relied on, in support of claim of re-grant of the subject-lands on behalf of the petitioners. We have examined and evaluated the said Circular. It is aimed at highlighting and emphasising for effective implementation of the provisions of paragraph 328 of the Manual. It is not a Circular which is unconcerned or unconnected or a separate source of claim. As such, this Circular came to be issued by the Government in the light of the observations and conclusions reached by this Court in 'Manibhai's case (supra)', to which we have, hereinbefore, referred to. It is, amply, clear from the recitals of the said Circular that once the land had been acquired, in terms of the provisions of Section 16 or under Section 17(1) of the Act and the compensation had been paid, as well as, the possession is taken by the authority, such acquired land shall absolutely vest in the Government, free from all encumbrances.

43. It is, also, clear from the said Circular that full right, Absolute title and interest is divested from the original owners, as well as, the beneficiaries of the land, in terms of, the provisions of Section 16 of the Act. If such land is not utilised for any Public Purpose, the emphasis is on the expression, 'Public Purpose', only in that case, instead of retaining or keeping the land idle, it may be given back to the erstwhile owners by way of re-grant or return only on fulfillment of the conditions prescribed in provisions in paragraph 328 of the Manual, as well as, upon the willingness on the part of the erstwhile owner to pay the value of the proposed re-grant of the land, as per the market-value then prevalent.

44. It appears, probably, with a view to maintain consistency and uniformity in the event of decision to re-grant by the State-Authority in such a situational reality and with a view to implement the provisions of paragraph 328 of the Manual and the directions and the observations made in the decision in the case of Manibhai (supra), the Circular is issued. Of course, it was, also, for the purpose of streamlining the irregularities made by the Irrigation Department without being routed through the concerned administrative department like the Revenue. Be that as it may, it is, amply, clear that either the Circular, dated 31-08-2001, placed on record, as `Annexure-L' (Page 90) in the first petition in this Group of Writ Petitions, or the provisions of paragraph 328 of the Manual, are not at all attracted in this Group of Petitions, and, again, it is clear that the said Circular and paragraph 328 of the Manual; even, remotely, do not constitute any launching pad for the entitlement of the re-grant, as claimed by the petitioners, in respect of subject-lands in view of entire factual profile. Its invocation could be made in exceptional and special circumstances and that too upon the fulfilment of other conditions stipulated therein. It does not create any right for erstwhile land-owners but enables the Authorities to exercise discretion in a given situation.

45. It is, also, material to refer to the proposition of law in respect of mode of disposal of Government land or property or mode of sale of unused surplus portion of acquired land. Every action of the Executive must be in conformity with the reasons and in consonance with the provisions of Rules or any Government Policy, in absence of such provisions, with a view to obviate the likely allegation of arbitrariness or mala fides. In 'State of Kerala v. M.Bhaskaran Pillai, AIR 1997 SC 2703', the Hon'ble Apex Court has, lucidly, expounded the proposition in this behalf that any Executive Order, prompting the sale of acquired unused land to the erstwhile owner, is not in consonance with the provisions of the Kerala Government Land Assignment Act, 1960, and, therefore, it is held that such an order shall be invalid.

CONCLUDING CHRONICLES AND CORNELS

46. Not only that, it is, also, evidently, and, unambiguously, held that unused such surplus acquired land should be put to public auction and the amount fetched therefrom can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. This decision, fully, strengthens the view and the exposition of law which we have rendered in the light of the factual profile in this group of Petitions. Ordinarily, it cannot be gainsaid that the sale of any public property, without following the prescribed procedure of tender or public action, would be questionable in a given case under the provisions of Article 14 of the Constitution.

47. After having taken into consideration the overall emergence of the factual profile from the record of this Group of Petitions under Article 226 of the Constitution of India; the underlined design and desideratum and statutory mechanism in the Act for the acquisition of land for the Public Purpose; the purpose and the object of the provisions of paragraph 328 of the Manual read with Circular, dated 31-08-2001; and the rival submissions coupled with the jurisprudential exposition of propositions of the law, relating to the land acquisition and re-grant discussed earlier, we are of the clear opinion that the entire set of petitions, voicing grievance and raising and claiming for re-grant or restitution of the acquired lands by the erstwhile owners, is without any merits and substance, whatsoever, as the same is not enforceable being de-hors the clear provision of Section 17-A of the Act applicable to the State of Gujarat. We are, therefore, left with no alternative but to raise our hands in helplessness and to reject the entire Group of Petitions, being totally devoid of any force of law and facts, leaving the parties to bear their own costs. All these petitions shall stand dismissed accordingly. Notice shall stand discharged in each petition.

48. At this stage, Mr.Yatin N.Oza and Mr.S.N.Sanjanwala, learned Senior Counsels, appearing for the petitioners, have requested to direct respondents to maintain `status quo' for a period of eight weeks so as to enable the petitioners to avail further remedy against our decision. Such a request is, strongly, countenanced by learned Assistant Government Pleader, Mrs.Manisha LavKumar Shah and learned Advocate, Mr.P.G.Desai, appearing on behalf of the respondents.

49. In our view, after having considered the entire purpose and philosophy of the Act, as well as, the factual profile and having noticed the matters being, totally, meritless and the erstwhile owners of the acquired lands having no any legal right, title or interest, We do not deem it necessary or expedient, in the larger interest of justice, to accede to the request made on behalf of the petitioners for stay or interim order. The same, therefore, shall stand rejected.