C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11813 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHANABHAI KARMANBHAI DESAI
Versus
STATE OF GUJARAT & 5 other(s)
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Appearance:
KRISHAL H PATEL(9644) for the Petitioner(s) No. 1
MR SAURIN A MEHTA(470) for the Petitioner(s) No. 1
MS. SHRUTI PATHAK, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,6
MR RUTVIJ S OZA(5594) for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 2,3,5
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 24/03/2023
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C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI) 1 The petitioner, whose land is not additionally acquired subsequent to the alignment / shifting of a minor river of Narmada is praying that either the laying down of the canal of which construction was completed way back on 30.06.2014 be laid down as per the original plan and notification issued thereafter, or pay the damages treating that the 20% of the land belonging to the petitioner is spoiled pursuant to laying down of the canal. 2 The short facts arising in the petition is as under: 2.1 The petitioner, who is an agriculturist, is an occupier of land bearing Survey No.40 of village: Shankheshwar, Taluka: Shankheshwar, District: Patan. A notification was issued by the respondent under Sec.4 of the Land Acquisition Act, 1894 for acquisition of certain lands which were passing through several survey numbers including Survey No. 130, 137 and 139 and a corner of the land of the petitioner i.e. Survey No. 140. Thereafter, Page 2 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 notification was issued and ultimately award was declared by the authority.
2.2 It is the case of the petitioner that at the instance of the owner of Survey No. 139, the authority, without following any procedure shifted the canal which was passing in a straight line, in such a manner that it would help the owner of Survey No. 139.
2.3 It is the case of the petitioner that when the petitioner came to know about the intention of the respondent, he made representation to the concerned authority. However, there was no reply from the authority from 2013 till 2021. When the petitioner received information from the respondent Sardar Sarovar Nigam Limited ("SSNL" for short), that the canal was shifted and therefore the petitioner has to file this petition praying as under:
"8(A) YOUR LORDSHIPS may be pleased to admit and allow this petition.
(B) YOUR LORDSHIPS may be pleased to issue a Page 3 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 writ of Mandamus or any other appropriate Writ or Direction by directing the Respondents jointly and severally to take necessary and corrective actions by directing the Respondents to construct the Bolera Branch Canal, Padivada Distributary, Shankheshwar Minor Canal-2 on Survey Nos. 130, 137 and 139 as per the approved Plans and as per the Section 4 and 6 Notification issued under the Land Acquisition Act, 1894 for the same as straight line;
(C) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus or any other appropriate Writ or Direction by directing the Respondents to take appropriate steps to restore the Land bearing Survey No. 140 situated at Mouje : Shankheshwar, Taluka : Shankheshwar, District : Patan of the Petitioner in its original and cultivable Land and/or grant compensation to the Petitioner for adversely affecting the cultivability of the land of the Petitioner;
(D) Pending hearing and final disposal of the Petition, YOUR LORDSHIPS may be pleased to direct the Respondents to grant interim compensation to the Petitioner for adversely affecting the cultivability of the land of the Petitioner as the action of the Respondents violates Article 14, 19(1)(g) and 21 of the Constitution of India;
(E) YOUR LORDSHIPS may be pleased to grant such other and further relief/s, as may be deemed fit by this Hon'ble Court, in the interest of justice." 2.4 In response to the notice issued by this Court, the respondent SSNL has filed an affidavit dated 30.09.2021 and has placed relevant documents in support of the Page 4 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 decision taken by the SSNL to shift the canal and opposed the grant of relief as prayed for. 2.5 In response to the affidavit-in-reply, the petitioner has filed an affidavit-in-rejoinder and has placed report of a government approved surveyor who has decided about damages caused to the land.
3 Mr.Saurin Mehta, learned advocate appearing with Mr.Krishal Patel, learned advocate for the petitioner, has vehemently submitted that the action on the part of the respondent is contrary considering the basic law of giving an opportunity of hearing to the affected person. By taking us through the map produced by the petitioner at Annexure-'A', he would submit that as per the original complaint, the canal was passing through several survey numbers in a straight line i.e. Survey No.137, 139 and
142. He would submit that a corner of Survey No. 140 was also being used for passing of the canal. However, at the instance of owner of Survey No. 139, the respondent Page 5 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 authorities constructed the canal in such a manner that additional expenses were incurred and other curves carried out pursuant to the subsequent laying down of the canal has affected the petitioner.
3.1 He would submit by taking us through the Report dated 01.02.2020 issued by Dy. Executive Engineer, Kutchchh Canal, Branch: Harij. He would submit that the canal was shifted pursuant to the request made by the owner of Survey No. 139 of the said village Shanksheshwar. He, therefore, would submit that the illegal acquisition has been made by the respondent authorities, and therefore, the same is required to be quashed and set aside. He would submit that due to shifting of the canal which is adjacent to the border of the field of the petitioner, the adjacent land has become useless for cultivation, and therefore also, the petitioner would be entitled for the relief of compensation. He would submit that carrying out agricultural activities is the fundamental right of the farmer and in such a case, Page 6 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 the Court should interfere with the illegal action carried out by the respondent authority.
3.2 In support of his submission, he has relied on a decision of the Hon'ble Apex Court in the case of Indibily Creative Private Limited & Ors vs. Government of West Bengal & Ors., reported in (2020) 12 SCC 436. He would submit that the State may be made liable to pay compensation while exercising powers under Article 226 of the Constitution of India. On the same line he has relied upon another decision of the Apex Court in the case of Nilabati Behera (Smt) Alias Lalita Behera vs. State of Orissa & Ors., reported in (1993) 2 SCC 746. He would submit that appropriate compensation be awarded. He has also relied upon another decision of the Hon'ble Apex Court in the case of Dalmia Cement (Bharat) Ltd vs. Union of India & Ors., reported in (1996) 10 SCC 104., and would submit that the petitioner is having a fundamental right for cultivating land and if it is found that the breach has been committed Page 7 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 by the government, the same can be granted by the High Court. He therefore would submit that the petition be allowed.
4 On the other hand, Mr.Rutvij Oza, learned advocate appearing for the respondent - SSNL, has vehemently opposed this petition. He would submit that the petition suffers from delay and laches. He would submit that it is true that initially the canal was proposed to be laid down in a straight line; however, a representation was made by the owner of Survey No. 139 of Shankheshwar village that if the canal is laid in such a manner, his land would be divided in such a portion that he would not be able to carry any agricultural work in that part of the land. After considering the submissions, the authority prepared a report and decided to change the alignment of the canal in such a manner that least damages are caused to other persons.
4.1 By taking us through the communication dated Page 8 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 19.02.2014, he would submit that the canal is not at all passing through the land of the present petitioner who is the owner of Survey No.140. He would submit that thereafter, the higher authority by communication dated 05.06.2014 decided to accept the submission made by the authority and has decided to shift the canal. Mr.Oza, learned advocate, would submit that the land belonging to the petitioner is used for at the time of changing or altering the laying down of the canal and only corner of Survey No. 140 belonging to the petitioner is acquired for the said canal. He, therefore, would submit that the petition has been filed with ulterior motive. 4.2 Mr.Oza, learned advocate, would further submit that the work of construction of canal has been completed way back on 30.06.2014 for which a Completion Certificate has been issued by the Deputy Executive Engineer and Executive Chairman. The construction of canal is completed way back in the year 2014 whereas the petition has been filed in the year 2022. He would submit Page 9 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 that as far as the damages claimed by the petitioner with regard to the alleged damage to the land in question is concerned, the petitioner is unable to establish the actual damage.
4.3 Mr.Oza, learned counsel, has taken us through the photographs produced along with the affidavit and would submit that the minor canal is passing through Survey No. 139 and no portion of the land has been used for laying down canal. He would submit that even subsequent to the shifting of canal, owner of Survey No. 130 and 137 have not raised any objection though the canal has been laid in such a manner that they are least affected and nobody has raised any objection, he would submit that the petition be dismissed.
5 We have heard learned advocates appearing for the respective parties. It is not in dispute that subsequent to shifting the canal from one place to another, land of the petitioner is not at all acquired, whereas the shifting of Page 10 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 the canal as is evident from the map which has been produced by the petitioner himself is that the same is passing through the border of Survey No. 140 whereas earlier it was passing in such a fashion that the owner of Survey No. 139 could not have been cultivating the same. Only corner of the land of the petitioner which was also under acquisition in the earlier notification was used. That apart, no more land is acquired for laying down of the canal.
5.1 It is also pertinent to note that when the land belongs to the petitioner is acquired pursuant to shifting of the construction of canal, the present petition is filed only on the ground that the land belonging to the petitioner is spoiled. It is also pertinent to note that the Certificate has been issued, wherein, it has been specifically stated that the actual work and laying down the canal work is completed on 30.06.2014 i.e. more than nine years. As far as considering the damages for alleged damage to the land belonging to the petitioner is concerned, we are of the considered view that by Page 11 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023 C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023 producing documents in the nature of report, the damage cannot be decided by this Court, and therefore, the judgements relied upon by the learned advocates are not applicable in the present proceedings. 6 We find no merits in the petition. The petition is dismissed, accordingly. Rule is discharged.
(A.J.DESAI, ACJ) (BIREN VAISHNAV, J) BIMAL Page 12 of 12 Downloaded on : Tue Mar 28 20:37:07 IST 2023