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SCA/6924/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6924 of 2010
=========================================================
PATEL
JASRAJ AMARSHIBHAI & 7 - Petitioners
Versus
STATE
OF GUJARAT & 11 - Respondents
=========================================================
Appearance :
MS
AMRITA AJMERA for
Petitioners : 1 - 8.
MS NAIR AGP for Respondent: 1,
DS AFF.NOT
FILED (N) for Respondents : 1 - 2.
NOTICE SERVED BY DS for
Respondents : 3 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 26/11/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
Heard
Ms. Ajmera, learned advocate appearing for the petitioners and Ms.
Nair, learned AGP for respondents.
It
prima-facie appears from the certificate dated 07.01.2010, which is
produced at page-45, together with the affidavit-in-reply on behalf
of respondent no.4, that the Government already had taken decision
to apply emergency clause under Section 17 of the Land Acquisition
Act (hereinafter referred to as ‘the Act’). The surprising part is
that a Notification under Section 4(1) of the Act has been issued
thereafter on 06.04.2010 and the Notification under Section 17(1) of
the Act has been issued on 29.04.2010. It is admitted position that
the emergency clause under Section 17(4) of the Act is not applied.
Therefore, while exercising powers under Section 17(1) of the Act,
not only the objections submitted by the land owners post
Notification under section 4 of the Act are required to be
considered but the inquiry is also required to be further concluded
upto the stage of Sections 5 and 5(1) and it is only thereafter, the
powers can be exercised under Section 17(1) of the Act. Nothing has
happened in the present case and therefore, the impugned
Notification under Section 17(1) of the Act can be said as without
following the mandatory procedure and consequently may result,
prima-facie as ultravirus to the powers. The aforesaid is coupled
with the circumstance that even prior to the Notification under
Section 4(1) of the Act, the Government had already decided to apply
emergency clause, which shows that the matter has not been
independently considered, as is required to be considered after
taking into consideration the grounds germane to the exercise of
powers under Section 17 of the Act.
It
has been stated by learned counsel for the petitioners that physical
possession is uptil now with the land owners.
Hence
Rule. By interim order, it is directed
that the status-quo qua possession of the petitioners over the land
in question shall be maintained till further orders. However, it is
clarified that present order shall not operate as a bar to the
respondents in following the procedure denovo under the Act but in
accordance with law.
(JAYANT
PATEL, J.)
(S.R.BRAHMBHATT,
J)
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