C/SCA/1740/2023 ORDER DATED: 08/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1740 of 2023
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KESARBEN GOKARBHAI MANJERI
Versus
STATE OF GUJARAT
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Appearance:
MR AR THACKER(888) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 08/02/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. Petitioner claims to be the owner of the land bearing survey No. 82, admeasuring 2 hector, 40 are and 79 square meters of Village: Sangadh, Taluka: Rapar, District: Kachchh having purchased the same under a registered sale deed dated 26.09.2006 (Annexure 'A'). Pursuant to same, revenue records came to be mutated and revenue entry No. 159 was entered on 17.01.2007 and certified on 09.10.2007. Page 1 of 8 Downloaded on : Thu Feb 09 20:48:30 IST 2023
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2. The aforesaid land along with other lands, came to be acquired by issuance on Notification under Section 4 of Land Acquisition Act, 1894 on 27.10.2010, followed by Notification issued under Section 6 on 14.12.2011 and an award came to be published on 29.03.2012. However, said award reflected name of the vendor of petitioner or in other words, it did not reflect the name of the petitioner. Hence, petitioner claimed that he was not aware of the acquisition proceedings. Petitioner is said to have submitted an application under the Right to Information Act, 2005 on 07.04.2017 seeking copy of the award for which, reply was given on 07.04.2017 stating that no notice under Section 12(2) of the Land Acquisition Act, 1894 was issued to the petitioner. It is also contended that petitioner had made enquiries with the erstwhile owner, who informed him of not having received, either the notice of acquisition/award or compensation in respect of the land acquired. Hence, petitioner approached this Court by filing a petition in Special Civil Application No. 9386 of 2018 for setting aside the award dated 29.03.2012 contending that it is arbitrary, unconstitutional and violative of Articles 14 and 19 of the Constitution of India. Said petition came to be disposed of vide order dated 01.08.2019 (Annexure 'E'), wherein, a statement came to be made by the learned Assistant Government Pleader to the effect that three meetings were held but claimants therein (which Page 2 of 8 Downloaded on : Thu Feb 09 20:48:30 IST 2023 C/SCA/1740/2023 ORDER DATED: 08/02/2023 included petitioner herein also) had not claimed any compensation. Hence, observing as under, petition came to be disposed of:
"Special Civil Application No.9387 of 2018 is concerned, the total amount of compensation is decided and by cheque dated 9/8/2010 an amount of Rs.1,31,283/- was paid in advance while remaining amount is to be paid. So far as Special Civil Application No. No. 9388 of 2018 is concerned, advance payment was made from different dates in total for Rs.11,226/- and the remaining compensation, for three meetings were held and claimants have informed by registered post A.D. but to no avail."
3. On account of compensation having not been paid and the application dated 09.01.2020 (Annexure 'H') filed for reference having been rejected by communication dated 25.11.2021 by the second respondent, petitioner is before this Court seeking following prayer:
"28(A) To issue a writ of mandamus or a writ of certiorari in the nature of mandamus or any other appropriate writ, order or direction, direction, to Deputy Collector and Land Acquisition Officer, the respondent no.2 herein in LAQ Case No.7/2011 in respect of land bearing Survey No. 82 of village Shangadh, Taluka Rapar, District Kutch to modify the award dated 29.3.2012, acquiring land admeasuring 2 hectors, 40 are and 79 gunthas and further be pleased to direct the respondent no.2 to modify award showing the name of petitioner as owner of the land in bearing Survey No. 82 of Village Shangadh, Tal Rapar, District Kutch question and direct the respondent no.2 to forthwith pay compensation with interest and further direct the respondent no. 2 to make reference under Section 18 of the LAQ Act after award is modified in the name of the petitioner and quashed the letter dated 25.11.2021."
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4. Having heard the learned counsel appearing for the respective parties, we are of the considered view that indisputably, there is a registered sale deed in favour of petitioner, executed by Shri Arjanbhai Vasabhai Koli covering the property being survey No. 82 (referred to supra) which was subject matter of acquisition pursuant to which, revenue records came to be mutated in favour of purchaser as already noticed herein above. Despite revenue records having been mutated, for reasons best known, in the acquisition proceedings, name of the subsequent purchaser in whose name revenue records had been mutated, was not indicated but on the other hand, the name of vendor of petitioner namely Shri Arjanbhai Vasabhai Koli's name was reflected in the acquisition proceedings. Hence, after coming to know about acquisition proceedings and having made application under Right to Information Act seeking copy of the award and also copy of notice issued under Section 12(2), an application came to be submitted by the petitioner under Section 18(1) of the Act on 09.01.2020 to the second respondent seeking enhancement and requested for issue being referred to Civil Court, which came to be rejected by the impugned communication dated 25.11.2021 on the ground that this Court, in Special Civil Application Nos. 9386 of 2018, 387 of 2018 and 9388 of 2019, by order dated 01.08.2019, had dismissed the Special Civil Application and as such, no further Page 4 of 8 Downloaded on : Thu Feb 09 20:48:30 IST 2023 C/SCA/1740/2023 ORDER DATED: 08/02/2023 proceedings was required to be taken by the said authority. Said judgment, which is available on record and which has been produced by the petitioner at Annexure 'E', would disclose that there were in all three petitions. The petitioner herein was the Writ Applicant in Special Civil Application No. 9386 of 2018. It was only stated therein by the Coordinate Bench that on account of three meetings having been held and claimant having not claimed any compensation despite being informed by issuance of notice by RPAD, further proceeding was not continued. With whom such meeting was held or to whom notice by RPAD was issued, is not forthcoming from the said order.
4.1 Be that as it may. The fact remains that petitioner has approached this Court for setting aside the award which had been passed on 29.03.2012. The possession of the land, which was acquired, has been taken long back. As such, at the first instance itself, petitioner ought to have approached this Court, particularly when the award came to be passed on 29.03.2012 or immediately after possession of the subject land was taken over. However, petitioner kept quite for six long years, till filing of Special Civil Application No. 9386 of 2018. It is for this reason, we had indicated to the learned counsel appearing for the petitioner that on the ground of delay and laches, petition would be liable to be Page 5 of 8 Downloaded on : Thu Feb 09 20:48:30 IST 2023 C/SCA/1740/2023 ORDER DATED: 08/02/2023 dismissed. At that juncture, time was sought for to file an Affidavit of Undertaking on behalf of the petitioner to forgo interest and such request was acceded to by this Court and matter was ordered to be listed today; an Affidavit of Undertaking on behalf of the petitioner has been filed today, whereunder, it is categorically admitted by petitioner that there has been delay on the part of the petitioner in initiating the proceedings and as such, petitioner has agreed to forgo the interest on compensation from the date of award up to the date of filing of the first petition i.e. Special Civil Application No. 9386 of 2018. In fact, when the Coordinate Bench disposed of the aforesaid Special Civil Application No. 9386 of 2018, a liberty was granted to the petitioners in each of the petitions to take appropriate remedy in accordance with law. This liberty granted had ignited the petitioner to file an application on 09.01.2020 under Section 18 seeking Reference namely for enhancement of compensation as awarded on 29.03.2012 and said application being referred to jurisdictional Civil Court for being adjudicated by the said Court.
5. In the light of afore-stated facts, we are of the considered view that the reason assigned under the impugned communication dated 25.11.2021 for not entertaining the application under Section 18(1) of the Land Acquisition Act, 1894 could not be justifiable, inasmuch as, petitioner Page 6 of 8 Downloaded on : Thu Feb 09 20:48:30 IST 2023 C/SCA/1740/2023 ORDER DATED: 08/02/2023 being owner of the land and he having not been made party to the acquisition proceedings and award having been passed in the name of erstwhile owner who had sold the property in favour of the petitioner much prior to the acquisition proceedings i.e. under the sale deed dated 26.09.2006 and the acquisition proceedings having been commenced by issuance of Notification under Section 4(1) of the Land Acquisition Act on 27.10.2010, it cannot be gainsaid by the revenue that right of the petitioner to seek for compensation and consequential benefits had got extinguished. We are of the considered view that right of the petitioner to seek for enhancement of compensation being inherent and any action by respondent contrary to same would be in violation of Article 300-A of the Constitution and as such, we are of the view that petitioner would be entitled to seek for Reference under Section 18 and as such, the impugned communication dated 25.11.2021 cannot stand the test of law and is liable to be quashed.
For the reasons stated above, we proceed to pass the following order:
:: O R D E R ::
i) Special Civil Application is allowed. Page 7 of 8 Downloaded on : Thu Feb 09 20:48:30 IST 2023 C/SCA/1740/2023 ORDER DATED: 08/02/2023 ii) Second respondent is directed to consider the application
filed by petitioner on 09.01.2020 (Annexure 'H') and refer the same under Section 18 of the Land Acquisition Act, 1894 to the jurisdictional Civil Court for being adjudicated in accordance with law within six weeks from the date of receipt of copy of this order.
iii) The petitioner has filed an Affidavit of Undertaking that he would forgo interest from the year 2012 i.e. 29.03.2012 up to the date of filing of first petition i.e. 21.04.2018 and as such, petitioner would not be entitled to claim interest for said period. The Reference Court shall take note of the same and exclude said period for the purposes of computation and award of interest, if any.
Ordered accordingly.
Pending applications, if any, stand consigned to record.
[ Aravind Kumar, CJ. ] [ Ashutosh Shastri, J. ] hiren/4 Page 8 of 8 Downloaded on : Thu Feb 09 20:48:30 IST 2023