ORDER
1. Two petitioners through their power of attorney have filed this petition under Art. 226 of the Constitution of India challenging notifications under Ss. 4 and 6 of the Land Acquisition Act, 1894 (‘the Act’ for short). Section 4 notification was dated 22-111982 which was gazetted on 12-5-1983 and there was further gazetted notification on 16-8-1983. It is at annexure E to the petition. By the said notification, lands of the petitioners amongst others were sought to be acquired by the respondent-State of Gujarat as they were likely to be needed for a public purpose i.e. drainage disposal scheme of the respondent Municipal Corporation, This notification was followed by notification under S. 6 dated 7-2-1986. The said notification is at annexure F to the petition. In the said notification under S. 6, it was provided that Government was pleased to direct under sub-section (1) of S. 17 of the Act that the Collector shall, on expiration of fifteen days from the publication of the notice relating to the said lands under sub-clause (1) of Clause 9 of the Act take possession of all the lands specified in the Government notification mentioned therein. Thereafter, notices under S. 9 of the Act were issued and ultimately award was passed by the Special Land Acquisition Officer on 16-1-1989. These acquisition proceedings have been challenged on diverse grounds.
2. In response to the notice issued at admission stage, affidavits-in-reply have been filed by S. K. Patel, Special Land Acquisition Officer, Division 4, respondent No. 2 herein and also by J. M. Patel, town planning officer of Surat Municipal Corporation, respondent No. 3 herein. The petitioners have also joined as respondent No. 4 the then Chief Minister Amarsingh Choudhari. But notices at admission stage were issued to respondents Nos. I to 3 only.
3. Mr. S. B. Vakil, learned Advocate for the petitioners raised the following contentions in support of the petition:
(1) That the first respondent, after issuance of impugned notifications had taken a policy decision to withdraw from the acquisition on 13-10-1988 under S. 48 of the Act and consequently all further proceedings there only acquisition were null and void including the award dated 16-1-1989 and the respondents should be permanently restrained from enforcing these notifications against the petitioners.
(2) Action of the respondents especially respondents Nos. I and 4 herein to proceed with acquisition after having taken decision to withdraw from acquisition is actuated by mala fides and hence also all the proceedings after 13-10-1988 were null and void.
(3) Land acquisition proceedings have lapsed as per provisions of S. 11-A of the Act as the award was not passed within two years of declaration under S. 6 of the Act.
(4) Acquisition proceedings are contrary’ o Government policy of not acquiring lands within distance of 10 K. Ms. from the limits of the Surat Municipal Corporation and hence also impugned notifications are liable to be quashed
4. We have heard the learned Advocates of respective parties on these contentions. We have reached the conclusion that there is no substance in any of these contentions and hence this petition is liable to be summarily rejected. We now proceed to give reasons for the aforesaid conclusion.
Contention No. I : A few relevant facts to appreciate this contention may be noted at the outset. As seen earlier, S. 6 notification was gazetted on 7-2-1986. Thereafter, it appears that section officer, Central office, Revenue department, Sachivalaya, Gandhinagar acting on behalf of the first respondent wrote a Yadi/letter addressed to the special land acquisition officer, Surat to the effect that various lands of S. Nos. 44, 45, etc. of village Bhesan of Choryasi taluka of Surat district were sought to- be acquired under S. 6 of the Act by notification published on 7-2-1986. That as these lands under acquisition were very fertile, Government had decided not to proceed further with acquisition proceedings and consequently, the addressee may send proposal for releasing these lands from acquisition to the Government at the earliest. This yadi /letter further recited that it was being written by the order of the Governor of Gujarat and in his name. It is necessary to note at this stage the background facts leading to the present acquisition proceedings. The third respondent-Municipal Corporation functioning under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (‘the BPMC Act’ for short) proposed to establish drainage plant and for that purpose, it required open land on the outskirts of Surat city for establishing the said plant and for having drainage disposal scheme. The affidavit-in-reply filed by the special land acquisition officer shows that by resolution No. 82 dated 30-1-1974 passed by the Drainage Committee, Administrator of Surat Municipal Corporation passed a resolution and therein made proposal to acquire concerned lands having total area of 131 acres, 23 gunthas and 8 anni from the lands situated in Bhesan village of Choryasi taluka of Surat district This proposal was forwarded to the State Government under S. 78 of the BPMC Act and that proposal was accepted by the first respondent and on that basis, impugned notifications were issued. As the proposal to acquire these lands had emanated from the third respondent in exercise of its statutory power under S. 78 of the BPMC Ad, if the State Government had to withdraw from acquisition, it had to obtain counter proposal for releasing these lands from acquisition under S. 78 of the BPMC Act from the, Municipal Corporation itself and that is how the aforesaid Yadi at annexure H to the petition was addressed by the Section Officer of the Revenue Department of State of Gujarat to the land acquisition officer. Now, it appears that no such fresh proposal for releasing these lands from acquisition was ever submitted by acquiring body viz. the third respondent and on the contrary, the third respondent filed special civil application No. 7588 of 1988 in this Court on 14-11-1988 for obtaining a writ of mandamus for directing the first respondent to proceed further with acquisition proceedings. It appears that subsequently the said petition came to be withdrawn on 19-12-1988 and thereafter the award came to be passed in the acquisition proceedings on 16-1-1989 as noted earlier. It is in the aforesaid factual backdrop that the contention of Mr. Vakil that acquisition proceedings had stood withdrawn has to be appreciated. Section 48 of the Act which is relevant for our purpose reads as under:
“48. (1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section”.
Now, it is obvious that after the land acquisition proceedings have been initiated, Government has liberty to withdraw from acquisition provided possession of the acquired land has not been taken. In the present case, possession of the land is still with the petitioners. Therefore, the first respondent can validly exercise its liberty to withdraw from acquisition of the concerned lands if it was so minded. However, the moot question is whether it -has so withdrawn from acquisition ? If the acquisition was by the State of Gujarat of its own, it could have decided of its own to withdraw from acquisition at any time under S. 48(1) before possession was taken. But in the present case, the acquisition proceedings were initiated at the behest of the third respondent which had proposed acquisition of the land for installation of its drainage disposal scheme. As the said proposal was accepted by the first respondent and concerned notifications under Ss. 4 and 6 were issued, if the State of Gujarat subsequently decided to withdraw from acquisition, it had to call, for such proposal from the third respondent via second respondent and if such proposal had been moved by the third respondent, then only a stage would have reached for the first respondent to withdraw from acquisition as required by S. 48(1) of the Act. That
1 stage never reached. Mr. Vakil is right when he contends that no gazetted notification is required for withdrawing from acquisition under S. 48(1). He rightly placed reliance on the decision of the Bombay High Court in the case of Atmaram Marya v. State, AIR 1984 Bom 7 1. He also placed reliance on a decision in the case of D.P.Co.-op. Hou. Society v. State, 29(2) Guj LR 1460. However, the main question remains whether on the facts of the present case, the first respondent had withdrawn from acquisition. The Yadi at Annexure H though written in the name of the Governor of Gujarat had not stated that the State of Gujarat had decided to withdraw from acquisition. The only decision which was conveyed by the first respondent as per Annexure H to the second respondent was that the State of Gujarat had taken a decision not to proceed with the said acquisition and before it decided to withdraw from acquisition, it was required to have proposal to that effect from the third respondent which was the acquiring body and it had to resend fresh proposal under S. 78 of the BPMC Act. As that stage never reached, it cannot be said that the first respondent had taken a decision to withdraw from acquisition. The decision not to proceed with acquisition which was conveyed by Yadi at Annexure ‘H’ only meant that so far as the first respondent was concerned, it was not inclined to proceed further with acquisition and from 13-10-1988 the date of the Yadi, further acquisition proceedings remained suspended. But they could have been terminated validly if ultimately a decision was reached under S. 48(1) to withdraw from acquisition.- Till that decision was reached, there was locus paenitentiae for the first respondent to resume its suspended proceedings. We are not able to agree with the contention of Mr. Vakil that Yadi at Annexure H amounts to withdrawal from acquisition and not mere suspension of acquisition proceedings for the time being awaiting proposal from the third respondent via second respondent for releasing these lands from acquisition. The express language of Yadi at Annexure ‘H’ contraindicates this position. It appears that the third respondent was not agreeable to withdraw its proposal to acquire these lands for installation of its drainage plant and was insisting to proceed further with the same and consequently the first respondent could not and did not withdraw from acquisition of these lands which were duly notified under S. 6 years back in 1986. Once this conclusion is reached, it has to be held that acquisition proceedings which remained temporarily suspended as per the Yadi at Annexure ‘H’ came to be resumed i the absence of any final decision of the firs respondent to withdraw from acquisition a per S. 48(1) and once they were resumed, the resulted in award dated 16-1-1989. For such resumption of proceedings, there was no legal impediment as the acquisition proceeding had not died out but they survived and had merely got temporarily suspened by the firs respondent as per the Yadi at Annexure ‘H’. I is, therefore, not possible to agree with the contention of Mr. Vakil that passing of the award and all subsequent proceedings seeking possession from the petitioners under the impugned notifications under Ss. 4 and 6 of the Act are null and void. The first contention is, therefore, rejected.
Second contention:- Mr. Vakil for the petitioner’s placing reliance on the decision of the Supreme Court in the case of State of Punjab v. Gurdial Singh, AIR 1980 SC 319, submitted that bad faith would vitiate the acquisition proceedings and that it would amount to attainment of ends beyond sanctioned purposes of power by simulation or pretension of gaining legitimate goal. He presented three features of this case for consideration in the light of this submission. Firstly it was contended that these lands are very fertile.’ There were 20 wells in these lands. On 14-3-1978, Choryasi Taluka panchayat had resolved at Annexure C that such costly lands should not be -acquired. He submitted that Even Government decision dated 13-10-1988 at Annexure H also pointed out in the same direction. The second aspect of the matter on which reliance was placed was that alternative sites were available where drainage disposal scheme can be installed and insisting on acquiring the petitioner’s lands clearly indicated mala fides of the acquiring authority. The third aspect which was pressed in service was that when the Government. decided to abandon acquisition proceedings, they had to be resumed under political pressure. For that, our attention was invited to para I I of the petition and it was submitted that some members of the Surat Municipal Corporation threatened the Government that they will resign as councillors and the Mayor of Surat Municipal Corporation Mr. Pirzada had threatend that he will resign and on account of support of councillors of Indira Morcha to the councillors of Congress-1, they were in position to manage the affairs of Surat Municipal Corporation and if they took back their support to the Congress-I then the Surat Municipal Corporation would be again under the control by B.J.P. and that even Deputy mayor Mr. B. C. Sonevene, the leader of Indirawadi Morcha and by the support of their councillors, the Surat Municipal Corporation being ruled by Congress-I councillors pressurised upon the Chief Minister Mr. Amarsinh Choudhary by threatening that the Government will have to withdraw the said order of dropping acquisition proceedings of the lands in question of village Bhesan for the purpose of acquisition of drainage disposal scheme for Rander Adajan area for the Surat Municipal Corporation and because of threat given by some of the councillors of the Congress-I and the councillors of Indirawadi Morcha and on account of the threat given, it seems that the Chief Minister had assured the said members that he will see that the order of dropping acquisition proceedings will be cancelled. In our view, there is no substance in any of the three aspects posed for our consideration. It has to be kept in view that Surat Municipal Corporation had already resolved years back to acquire these lands for the purpose of its drainage disposal plant. That proposal was sent to the State of Gujarat as per provisions of S. 78 of BPMC Act. The said provision reads as under:
“(1) Whenever the Commissioner is unable under S. 77 to acquire by agreement any immovable property or any easement affecting any immovable property vested in the Corporation or whenever any immovable property or any easement affecting any im-movable property vested in the Corporation is required for the purposes of this Act, the State Government may, in its discretion, upon the application of the Commissioner, made with the approval of the Standing Committee and subject to the other provisions of this Act, order proceedings to be taken for acquiring the same on behalf of the Corporation as if such property or easement were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894″.
Thus, in exercise of the aforesaid statutory power, the Commissioner of Corporation had proposed to acquire these lands and the said proposal was accepted by the State of Gujarat and Ss. 4-6 notifications were issued. Thereafter, if any fresh proposal for releasing lands was to be rooted, it had to be moved by the Corporation through the Commissioner and such fresh proposal for releasing lands had to be considered by the State of Gujarat and then only power under S. 48(l) of the Act could be exercised. No such eventuality had taken place. It has also to be kept in view that Surat Municipal Corporation had unanimously resolved to continue the acquisition proceedings and for that purpose, the Corporation had already filed a writ petition being special civil application No. 7588/ 88 on 14-11-1988 challenging the action of the State Government to drop the acquisition proceeding as mentioned in para 10 of the present petition. Thus, the Corporation had not only not withdrawn its earlier proposal to acquire these lands but had reiterated the same all throughout. Under these circumstance, there was no occasion for the State of Gujarat to effectively withdraw from acquisition by exercising power under S. 48(l) of the Act. Consequently, whether the lands were fertile or not or whether alternative sites were available or not, would totally pale into insignificance. These circumstances would be totally irrelevant for deciding the question of mala fides. So far as political pressure as alleged in para I I of the petition is concerned, it has to be kept in view that even if the concerned State authorities might have been so pressurised, it would be totally irrelevant for considering the question of mala fides, as the State authorities cannot effectively act under S. 48(l) of the Act till a fresh proposal was received from the Surat Municipal Corporation under S. 78 of the BPMC Act choosing some other lands for acquisition and agreeing to release the present lands from acquisition. As no such clearance was received from the Surat Municipal Corporation, the State of Gujarat could not have exercised its power under S. 48(1) of the Act. In fact, as discussed earlier, while deciding the first contention, the Yadi dated 13-10-1988 at Annexure H itself suggested that such proposal should be moved by the Municipal Corporation. It is, therefore, obvious that till such new proposal was received, there was no occasion for the State of Gujarat to release the lands from acquisition. As that stage never reached, no question of mala fides of the State Govt. would survive, for not releasing the lands from acquisition. In our view, on the facts of this case, it cannot be urged with any emphasis that non-releasing of lands from acquisition by the State of Gujarat was actuated by any mala fides. Mr. Vakils submission that Mr. Amarsinh Choudhari, respondent No. 4 should have filed his affidavit in reply, is also not well sustained for the simple reason that the fourth respondent could not have acted on behalf of the State of Gujarat in releasing the lands from acquisition till proper proposal to that effect was received from the Surat Municipal Corporation and as that never happened, inaction on the part of the fourth respondent in releasing the lands from acquisition cannot be said to be actuated by any mala fides at all. If he had received such proposal and still he had sat tight over it, then it could have been effectively urged by the petitioner that for some colateral purpose, the fourth respondent had sat tight over it. But such an eventuality never happened and hence, there remained no question of any mala fide inaction on the part of the respondents in not releasing the lands from acquisition. Before parting with this contention, it is necessary to note that it is not in dispute between the parties that a unanimous resolution was passed by all the councillors of the Surat Municipal Corporation for continuing acquisition proceedings after information regarding Yadi at Annexure H was received at their end. Consequently the alleged fraction between the Corporators or some corporators of Indirawadi Morcha bringing political pressure on the then Chief Minister would also pale into insignificance and will have no effect on the merits of the controversy between the parties. The second contention is, therefore, rejected.
Contention No. 3 :- So far as this contention is concerned, a few relevant dates will have to be recapitulated. Section 6 notification was gazetted on 7-2-1986; while the award was passed on 16-1-1989. It is, therefore, obviously beyond the period of two years from the date on which S. 6 notification was gazetted. It is in this factual background that applicability of S. 11-A has to be considered. Section 11-A with the relevant proviso and explanation reads as under:
“I IA. The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse.
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.
Explanation – In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed, by an order of a Court shall be excluded”.
A mere look at the aforesaid section shows that award has to be passed within two years from the date of publication of declaration. Now the date of publication of declaration obviously’ refers to declaration under S. 6. The phrase ‘date of publication of such declaration will have to be construed in the light of provision of S. 6(2) of the Act as amended by Act 68 of 1984. The said provision reads as under:
6(2). Every declaration shall be published in the official gazette and in two daily newspapers circulating in the locality in which the land is situate of which. at least one shall be in the regional language and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected”.
It is the case of’ the respondents in their affidavits-in-reply that even though S. 6 notification was gazetted on 7-2-1986, it was published in daily newspaper Gujarat Mitra on 27-2-1986 and in Times of India on 7-3-1986. That public notice of the substance of the declaration was published at conspicuous place on 1-7-1987. It is, therefore, submitted by the respondents that for the purpose of S. 11-A of the act, date of publication of S. 6 notification would be last of these dates meaning thereby, 1-7-1987 and two years will have to be reckoned from that date and that would end on 30-6-1989 while the award is declared on 16-1-1989 and, therefore, it is within the permission limit of two years as prescribed by S. 11-A of the Act. Mr. Vakil for the petitioners joins issue on this point and submits that it is not the case of the respondents that publication on spot was made for the first time on 1-7-1987 and even otherwise, there is unreasonable delay between publication of the notification in local newspapers that took place in March 1986 and publication on spot which is said to have taken place on 1-7-1987. That time interval of one year and four months is ex facie unreasonable, so far as this controversy is concerned, it is true that special land acquisition officer Mr. Patel in his affidavit in para 12 has stated that substance of declaration under S. 6 was published at a conspicuous place on 1-7-1987 and does not state that this was done for the first time, but the contents of the averments in the said para 12 clearly indicate that it was so done for the first time on 1-7-1987, as immediately after the averments regarding publication in daily newspapers is found the averment regarding publication on spot on 1-7-1987. It is also not the case of the petitioners that substance of the declaration was declared on spot at any time prior to 1-7-1987. We must, therefore, proceed on the basis that it was so published on spot for the first time on 1-7-1987. If that is so, on a combined reading of S. 11-A and S. 6(2) of the Act, last of such publication would be the date on which declaration can be said to have been published for the purpose of Section 11-A Consequently, two years would be available to the respondents from 1-7-1987 for declaring the award and within that time, the award was declared. However, one aspect of the controversy which Mr. Vakil raised has to be considered. He submitted that there was gross delay in publishing declaration on spot after publishing in the gazette and in local newspapers, and if the delay is unreasonable, the, entire exercise must fail. So far as this aspect of the matter is concerned, Mr. G. N. Desai for the respondent Corporation and the learned Assistant Govt. Pleader invited our attention to certain intermediate facts which had taken place in connection with the present acquisition proceedings. After S. 6 notificationas gazetted and published in local newspapers, a writ petition came to be filed in this Court, being special civil application No. 1375 of 1986. That was moved by certain inhabitants of Bhesan village on 7-3-1986. In that petition, they had amongst others, raised a contention as contention No. 4 in the petition to the effect as to whether it is open to the State Govt. to issue notifications under Ss. 4 and 6 of the Act for acquiring the lands of the petitioners even before the final development plan was sanctioned by SUDA on 31-1-1986. It is true that in the relief clause, they had not’ prayed for quashing of these notifications and the challenge was confined to the draft development plan. However, the Division Bench of this Court by its order dated 10-3-1986 granted ad interim stay in the said petition against dispossession of the concerned petitioners and that interim relief was continued after admission of the petition on 21-4-1987. Mr. Desai for the respondent-Corporation was justified in submitting that there was no question of dispossessing the concerned petitioners of special civil application No. 1375 of 1986 pursuant to the development plan. That dispossession clearly indicated dispossession through the acquisition proceedings and that was stayed. Consequently, a doubt would legitimately arise in the minds of the respondents whether they can take any further steps under S. 6 notification, which ultimately may Culminate into taking possession from the Concerned petitioners. Our attention was invited by the learned Asstt. Govt. Pleader to he fact that a letter was written by the Govt. ‘leader to the fact that a letter was written by the Govt. solicitor Mr. M.I.Hawa to the state of Gujarat on 21-4-1987 pointing out at Ahe Court had directed not to disturb session of the lands till final disposal of special civil application No. 1375 of 1986 and ) stay was granted restraining the proceedings to declare award. Thus, up to 21-4-1987, e respondent authorities appeared to be under a bona fide impression that because of to granted in special civil application No. 1375 of 1987, further proceedings towards declaration of award could not be taken. It appears that after the aforesaid clarificatory letter of the Govt. solicitor, a clear clarification was obtained from this Court in special civil application No. 1375 of 1986 and a Division Bench of this Court on 26-8-1987 clarified the earlier stay and passed an order as under:
“After hearing both the learned Advocates for the parties, it is clarified that the interim relief granted in this petition does not cover land acquisition proceeding which may go on in accordance with law. The relief prohibiting the respondents for disturbing petitioners’ possession pertained to impugned development plan”.
It was in view of the letter of Govt. solicitor dated 21-4-1987 that the respondent-authorities proceeded further with acquisition proceedings and published notification u/ s. 6 on spot on 1-7-1987. It was therefore submitted by the respondents that there was no unreasonable delay in publishing the declaration on spot as they were under a bona fide impression that due to pendency of special civil application No. 1375 of 1986 in this Court and on account of interim relief granted by this Court, land acquisition proceedings had to be stayed. We find considerable substance in this contention canvassed on behalf of the respondents. On the peculiar facts as stated above, it becomes clear that after publishing notification in the local daily on 7-3-1986, because of interim relief granted by this Court on 10-3-1986 in special civil application No. 1375 of 1986, till the matter got clarified by this Court on 26-8-1987, the respondents would be justified in not taking further steps towards acquisition proceedings culminating into award. That in the meantime, before such clarification could be obtained on 26-8-1987 armed with Govt. Solicitor’s letter, the special land acquisition officer acted and got notification published on spot on 1-7-1987. Therefore, the delay in publishing substance of declaration on spot remains well explained on the record of the case and cannot be termed as unreasonable or irrational. Once this conclusion is reached, result is obvious. Award dated 16-1-1989 cannot be said to have been passed beyond permissible limit of two years of declaration of S. 6 notification as laid down by S. 11A of the Act. This would put an end to this contention. However, one additional aspect of the matter which was strongly pressed in service by the respondents also deserves to be noted. Mr. Desai for the respondents submitted that as per explanation to S. 11A, in computing the period of two years under this section, the respondents will be entitled to request the Court to exclude the period during which any action to be taken in pursuance of the said declaration was stayed by the Court. He submitted that in the present case, by an interim order of this Court in special civil application No. 1375 of 1986, from 10-3-1986 continuously up to 26-8-1987, when the Court clarified the nature of the interim relief and even thereafter till 16-12-1987 when the petition was disposed of, there was interim relief restraining the respondents from taking any action pursuant to the declaration and this entire period has, therefore, to be excluded under the explanation to Section 11-A. If this period is excluded, the passing of the award on 16-1-1989 would be within the permissible time limit even counting from the date on which S. 6 notification was gazetted i.e. 7-2-1986. Mr. Vakil for the petitioners joins issue and submits that explanation to S. 11A will apply in cases where passing of the award is stayed by an order of the Court or any stay is granted by the Court which has effect of creating impediment in passing of the award. MT. Vakil for the petitioners submitted that delivery of possession of the acquired land has nothing to do with issuance of notification under S. 6, but delivery of possession follows award as per S. 16 of the Act. We would have been required to consider this contention of Mr. Vakil more closely, but for the fact that in the present case, S. 6 notification itself has invoked the provisions of S. 17(1) of the Act and has provided that the Collector shall, on expiration of fifteen days from the publication of the notice relating to the said lands under sub-clause (1) of Clause 9 of the said Act; take possession of all the lands specified in the Govt. notification. It is, therefore obvious that possession of the lands in the present case was sought to be acquired pursuant to the S. 6 notification and the question of taking possession was not to await passing of the award. Consequently, explanation to S. 11A gets squarely attracted on the facts of the present case. Possession of these lands was sought to be taken in pursuance of declaration under S. 6 and it is this proposed action as per the said declaration that was stayed by this Court in special civil application No. 1375 of 1986. Under these circumstances, the time during which interim relief protecting possession of the acquired lands was granted by this Court and had continued during the pendency of writ petition No. 1375 of 1986, has to be excluded while computing two years’ period for passing of the award as per S. 11A of the Act. Even on this ground, therefore, the third contention of Mr. Vakil is liable to fall and is, therefore, rejected.
Contention No. 4:- That takes us to contention No. 4. Mr. Vakil for the petitioners submitted that the respondents have adopted policy of pick and choose and, therefore, the acquisition proceedings are liable to fail. In this connection, he Invited our attention to the decision of this Court in the case of Maganbhai Vanarshibhai v. State, (1975) 16 Guj LR 839: (AIR 1976 Guj 84). It is true that in that case, it was ruled that when the Government had taken a decision not to acquire the land on which construction had been raised for personal use or the lands surrounding whereof construction activities were carried on by individuals or by cooperative societies for erecting residential premises and with the Government decision was not to acquire lands within the area of quarter or half a mile of such developed area once the Government lays down the policy it has to follow it uniformly. The Govt. cannot resort to such policy in certain cases where it likes and depart from the said policy as it chooses. Having laid down a definite policy, the Govt. cannot follow the irrational method of pick and choose. Such actions of pick and choose will be arbitrary and violative of Art. 14 of the Constitution and has to be struck down being contrary to the constitutional provisions. So far as the facts of the present case are concerned, Mr. Vakil invited our attention to para 2 of the petition and submitted that there was Govt. policy that there should be no drainage development scheme within the distance of 10 K.Ms. from the limit of Surat Municipal Corporation to avoid environment problems and that the special land acquisition officer by an order dated 23/24-10-1978 was also informed by the Surat Municipal Corporation that as other alternative site is under consideration for acquisition, the proceeding to acquire the lands in question be suspended. He also placed reliance on policy decision reflected by Govt. circular dated 18-5-1982 wherein it was stated that in the matter of State needs for its development activities, utmost restrain should be exercised in the acquisition of the lands. This submission of the petitioners is tried to be combated by the respondents. Special land acquisition officer in his affidavit-in-reply, para 7 has denied that there was any policy of the Government that there should be no drainage development scheme within the distance of 10 K.Ms. from the limits of the Municipal Corporation for the city of Surat. In para 8 thereof, it has been pointed out that a resolution was passed by the drainage committee on 30-1-1974 and the Administrator of Surat Municipality had passed a resoluton and there under made a proposal to acquire the lands under the provisions of BPMC Act. It is further pointed out that on objection being raised by Bhesan Gram panchayat as well as Choryasi taluka Panchayat, the District Inspector of Land Records and the Special Land Acquisition Officer, were intimated by a letter dated 23-10-1978 that the question of finding out alternative sites was under consideration. The alternative site for disposal scheme was from village Kunkani. However, the village people of Kunkani village had raised strong protests and lodged objections for the purpose of acquiring the lands of that village. The State Government had accorded sanction to acquire the lands of Bhesan under S. 78 of the BPMC Act. The proposal to acquire the alternative site for the purpose of drainage disposal was dropped and necessary resolution No. 36 dated 21-6-1980 of the drainage committee and resolution No. 499 dated 11 -71980 of the Standing Committee were passed resolving to proceed further with the acquisition of the lands of village Bhesan and accordingly, steps were taken to proceed with the lands acquisition proceedings. The affidavit-in-reply filed by J. M. Patel, Town planner of respondent No. 3, has denied that there is any policy of Government not to acquire fertile lands. He has also stated on the same lines as the special land acquisition officer. In view of these rival contentions, therefore, it appears to us clear that for effective functioning of the drainage disposal scheme of Surat Municipal Corporation lands under acquisition were found to be most suitable. After necessary 5-A enquiry, the land acquisition officer submitted a report about the need to acquire the concerned lands for the said purpose. Proposal to have alternative site for the scheme was considered and was found to be not feasible. Only because the lands are fertile, it would not be proper to hold that they can never be acquired under the Act. In fact, fertility of lands would be a relevant factor for fixing adequate compensation as per S. 23 of the Act. It is not as if the lands are sought to be acquired in huff or without considering the pros and cons of the matter. In fact, after full deliberations with all concerned, lands are sought to be acquired as found to be most suitable for the purpose of acquisition. Under these circumstances, it is not possible to agree with the submission of Mr. Vakil that the respondents have followed pick and choose policy and have arbitrarily selected the petitioners’ lands for acquisition or that the said acquisition is contrary to any confirmed policy of the State Government. It is pertinent to note that these acquisition proceedings have emanated in the light of exercise of statutory powers by the Surat Municipal Corporation under S. 78 of the BPMC Act and it is that proposal which has been accepted by the State of Gujarat. Surat Municipal Corporation has unanimously resolved to continue with these acquisition proceedings. For all these reasons, therefore, it cannot be said that the acquisition proceedings are irrational, arbitrary or involve any pick and choose policy. In para 5 of the affidavit-in-reply of the town planner of respondent No. 3, it has been stated that the whole work of Rander-Adajan plant is being delayed because possession of the lands has not been obtained by the State Government and given to the Corporation. That the Corporation has purchased different pipelines worth Rs. 12,10,038-70 and for Adajan drainage scheme, pipe lines worth Rs. 37,68,673/- have also been purchased. That under Rander drainage scheme, on revenue S. No. 212 at Rander, a sewerage pumping station has been constructed and the said construction work is over. The Corporation has spent about Rs. 39,83,550-61 for construction of the said pumping station at Rander. For taking the rising main line from the pumping station to Bhesan, the Corporation has purchased spirally welded RCC pipes from the Steel Authority of India worth Rs. 50,87,55 1. For the Rander-Adaj an drainage scheme, the Corporation has already spent about Rs: 1,40,49,813-3 1. The Gujarat Pollution Control Board vide its letter dated 25-10-1986 has given its consent by order Mo. 4759 and in the said order, it is provided that the Corporation should arrange for completion of sewerage system and installation of effluent treatment plants to provide at least primary treatment plants followed by chlorisation by 31-12-1988. That the lands in question are needed for public purpose. That providing of drainage is an obligatory duty to be performed by the respondent Corporation. In view of these averments in the affidavit-in reply which could not be effectively controverted by the petitioners, it has to be held that the lands under acquisition are most eminently suited for the purpose of installing drainage disposal scheme. It is obvious that the lands in the vicinity of sewerage drainage plant would be ideally situated for the purpose of effective implementation of the scheme and far distant lands would not be useful for the same. Considering all these aspects of the matter, therefore, it is not possible to accept the contention of Mr. Vakil that the lands in question have been arbitrarily selected for the purpose of acquisition. The last contention of Mr. Vakil therefore also fails and is rejected.
5. These were the only contentions canvassed in support of the petition and as they fail, the petition also fails and is summarily rejected. Notice discharged. No costs. Ad interim relief stands vacated.
6. At the request of Mr. Vakil for the petitioners, the ad interim relief granted by us earlier during the pendency of this petition is continued for eight weeks from today to enable the petitioners to approach the Supreme Court against the present order.
7. Order accordingly.