NEUTRAL CITATION
C/SCA/15819/2023 ORDER DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15819 of 2023
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AYESHA MOHAMED DADABHAI
Versus
STATE OF GUJARAT
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Appearance:
MR NIRAD D BUCH(4000) and MRS. BHAVINI N. BUCH(5403)for the
Petitioner(s) No. 1,10,11,12, 13,14,2,3,4,5,5.1,5.2,5.3, 5.4,
5.5,6,7,7.1,7.2,8,8.1,8.10,8.2, 8.3,8.4,8.5,8.6,8.7,8.8,8.9,9
MR KA PARIKH, ASST. GOVERNMENT PLEADER for Respondent(s) No.1
for the Respondent(s) No. 2
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 13/09/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. The present petition has been filed by fourteen petitioners, out of whom, thirteen are stated to be represented through petitioner No.14, who is their power of attorney. Petitioner No.14 even is represented through his power of attorney, namely, Mr.Sajid Mahmedshafi Kothia.
2. It is contended that all the petitioners herein have executed Power of Attorneys at different point of time in favour of Mr.Sajid Mahmedshafi Kothia, who has filed the instant petition and the Power of Page 1 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023 NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined Attorneys are still subsisting. The petitioner Nos.1 to 8.10 herein claim to be co-owners of land bearing Survey No.185/II admeasuring 17,503 sq.mtrs. situated at Village Kantharia, Taluka and District Bharuch and the petitioner Nos.9 to 10 are owners of land bearing Survey No.186/18 admeasuring 7184 sq.mtrs., which were acquired by acquisition Notification dated 06.08.2013 and 25.07.2014 under Section 3A and 3D of the National Highways Act, 1956.
3. The prayer in the writ petition is of quashing the communication dated 15.03.2023 issued by respondent No.2, namely, the Competent Authority, National Highways Act, 1956, whereby the petitioners have been asked to provide the details of joint bank account of all the co-tenure holders registered in Village Form No.7 of the aforesaid survey numbers, so as to process their request for disbursement of compensation.
4. It is submitted by the learned counsel for the petitioners that this is the second round of litigation in the matter of payment of compensation. Page 2 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023
NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined In the first round in Special Civil Application No.11985 of 2021, the petitioners sought for enhancement of compensation, by recalculation of the same giving effect to Factor-2. The writ petition was allowed vide judgment and order dated 27.08.2021, directing the Competent Authority to revise the award and issue fresh award by extending the benefits given in paragraph-21 of the judgment and order dated 12.09.2019 passed in Special Civil Application No.8734 of 2019. It is submitted that the judgment of the Division Bench dated 12.09.2019 has been affirmed by the Apex Court in Special Leave Petition (Civil) Diary No.18777 of 2020 filed by the State. Re-determination was made by declaration of fresh award, thereafter, on 19.01.2022 by respondent No.2. The petitioners herein who had received compensation under the initial award are entitled to receive difference towards enhanced compensation. A notice dated 20.01.2022 has been placed before the Court to submit that respondent No.2 required bank account number of each of the co-tenure holder as well as common bank account of all of them. Another Page 3 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023 NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined communication dated 15.03.2023 was issued by respondent No.2 asking the Power of Attorney holder of the writ petitioners to submit a copy of the passbook of joint bank account of all the writ petitioners, so that the enhanced compensation can be transmitted in the accounts of each of the writ petitioners. It is submitted by the learned counsel for the petitioners that there is an agreement between the co-tenure holders to the effect that the compensation payable to each of the co-tenure holder to the extent of their share in the land in question be transferred in the bank account of petitioner No.14, who is having a bank account in India. The said request was made for the reason that as per the Banking Laws, it is not possible to open joint account of all twenty-eight co-tenure holders as required by respondent No.2. Further, all the owners are residents of United States of America (USA) and it is not possible for them to come to India together for opening their bank account jointly. They have given Power of Attorney to Mr.Sajid Mahmedshafi Kothia, who happens to be their maternal uncle, in Page 4 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023 NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined order to manage their finances. Petitioner No.14, who is having Bank Account No.10710110002025 with UCO Bank, Kantharia Branch, has no objection to transfer the compensation amount in his account nor any of the co-tenure holders - co-owners raised any dispute. Based on the reply submitted by the Power of Attorney holder of the petitioners, namely, Mr.Sajid Mahmedshafi Kothia, appended at page-66 of the paper- book to the notice dated 15.03.2023, it is submitted by the learned counsel for the petitioners that it was intimated to the Competent Authority that no dispute would be raised by any of the co-owners in future, with respect to the disbursement of compensation which is lying with respondent No.2. It is submitted by the learned counsel for the petitioners that the Power of Attorney holder is agreeable to record his statement to that effect. It is contended that in the past, the compensation determined under the original award was transmitted in the bank account of petitioner No.14 and no objection was raised by the Competent Authority at that point of time. The dispute being raised here in Page 5 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023 NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined the matter of disbursement of enhanced compensation is nothing but an act of harassment on the part of respondent No.2 to the rightful claimants of compensation.
5. Having considered the submissions of the learned counsel for the petitioners and perused the record, we may note that the Power of Attorney given in favour of Mr.Sajid Mahmedshafi Kothia, through whom the instant writ petition has been filed, is a limited Power of Attorney giving right to the attorney holder to do all such acts which the petitioners can do personally in respect of the acquired property. The Power of Attorney holder is authorized to undertake following actions in relation to the property pertaining to the petitioners herein :-
"1. To appear and remain present only before land acquisition officer and to make submission, to put signature/s on all the forms documents to be filed with all such authorities in respect of the aforesaid property for land acquisition and to carry out all the necessary proceedings which may required to be done in respect of the said property for land acquisition purpose only. To Transfer our Page 6 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023 NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined aforesaid property by way of sale, gift, exchange or otherwise and to entered into agreement regarding such deals with anybody in respect of our aforesaid property and execute sale deed, Gift Deed, relinquish Deed or otherwise and to put signature in such deed/s or any other necessary documents, forms and to get such deed/s, agreements/s and documents registered with the sub - Registrar office or any other competed Registering Authority.
2. We further authorize my attorney to handle all the cases, matters arise in respect of the said property mentioned in Para-1, and 2 in respect of such cases, matters, and file appeal, revision, to present before any appropriate Courts and any concerned authorities and to all the activities related to land acquisition cases, like before an arbitrator court, high court, supreme court or any competent court matters arise in future in respect of the aforesaid property.
3. To Commence, Prosecute or to enforce or to be defend, answer or oppose all actions and other legal proceedings and demands touching any of the matters appoint senior advocate, advocate for his legal help if needed for aforesaid property or any other matters in which I may hereafter be interested or concerned and also if the said attorney shall thing fit to compromise,refer arbitration abandon, submit to judgment or become non- suited in any such/action or proceedings as aforesaid.
To remain present before the Government, Semi Government or Private authorities, Collector office, SDM Office, Mamlatdar Page 7 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023 NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined Office, Talati Office, City Survey Office or other offices laq office, and to make necessary application/s to put signature in application/s on our behalf, in respect of management of our aforesaid property, and to make payment of necessary premium of other charges to the Government or otherwise.
4. In short, by this limited Power of Attorney, I hereby authorize and empower my said attorney to do all the acts, which WE can personally do in respect of my above mentioned property which is acquire in Vadodara Mumbai express high .DFCC, BULLET TRAIN OR ANY LAND acquisition. By Virtue of this Power of Attorneys, my Attorney is free and entitled to do all the acts, of land acquisition only in respect of my aforesaid property.
5. My Power of Attorney can remain present and can do all acquisition proceedings on OUR behalf to object the Award in relation to, National Highway, DFCC TRAIN OR ANY LAND acquisition but he can not take land acquisition payment but that acquisition payment should be deposited IN ANY ONE OR MORE THEN ONE OF LAND OWNERS bank account IN INDIA AS OUR ATTORNEY DEEMS FIT AND in short acquisition payment of aforesaid property should be deposited ONE OF LAND OWNER OR OWNERS account only.
The power of attorney issued by us is appended to the immovable property, so "Gujarat Registration Act - 2018 - comes in force from Date 10/07/2020 under the notification Number/GHM-2020-39-M-RGN-1 2201 8-REG841/27-H1 Dt. 09/07/2020, according to its provision the registration of all Power of attorney related to the immovable properties is Page 8 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023 NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined compulsory to be register. So the registration of Power of attorney signed by us is compulsory. But we settled in foreign so I am not able to remain present physically for the registration of the Power of attorney. So the said power of attorney signed by us to submit in Sub Registrar office and to give confess on behalf of us before Sub Registrar we hereby appoint to RELATIVE (COUSIN SISTER SON) SAJID MAHMED SHAFI VALI KOTHIA (Second Party) RESIDING AT : At present Village kanthariya TA & DIST BHARUCH. GUJARAT, INDIA as OUR special Power holder. On that basis he can register the Power of attorney in Sub Registrar office.
6. For the above said limited purpose, we issue this Power of Attorney before the Competent Authority. WE ARE giving this limited power of attorney only for administrative work for above mention property OUR attorney can not do any financial work. He can only appear before land acquisition officer to do necessary sign on OUR behalf if needed. Hence, hereby agreed that, whatever OUR Power of Attorney will do will be binding to US only for administrative work of land acquisition purpose forever."
6. From a perusal of the clauses of the Power of Attorney given by the petitioners, it is transpired that the Power of Attorney holder is not authorized to receive payment though the assertion is that the payment of compensation can be deposited in the account of one of the landowner or owners account. Page 9 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023
NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined
7. It seems that for this reason, the Competent Authority, namely, respondent No.2 has issued the communication dated 15.03.2023 to the Power of Attorney holder to provide joint bank account of all the co-tenure holders of the land in question, to process the request of payment/disbursement in accordance with law.
8. Proceeding further, we may record the contention of the learned counsel for the petitioners that only one out of fourteen petitioners, namely, petitioner No.14 holds a bank account within the territory of India. The contention of the learned counsel for the petitioners is that they are not in a position to open a joint bank account as all of them reside in USA and it is not possible for them to come to India together to open a joint bank account.
9. Taking note of the above contentions, we have proposed to the counsel for the petitioners to file affidavits of each of the petitioners before the Competent Authority, mentioning their share in the property in question, appending the documents of Page 10 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023 NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined their title, with a categorical statement with regard to transfer of compensation amount to the extent of their share, in the bank account of petitioner No.14, namely, Mr.Yakub Mohamed Patel. We may note that none of the petitioners have responded to the notice dated 15.03.2023 and the response is at the hands of the Power of Attorney holder. The reply given by the Power of Attorney holder to the notice dated 15.03.2023 stating that he can give undertaking on behalf of the petitioners cannot be accepted. Having perused the conditions of the limited power of attorney given in favour of the holder, through whom the present proceedings are being pursued, we find that the Power of Attorney holder is not in a position to make any statement with regard to the transfer of compensation amount in the bank account of petitioner No.14, on behalf of the petitioners herein.
10. We, therefore, dispose of the present writ petition with the observations that each of the petitioners herein shall file their personal affidavit before the Competent Authority, namely, Page 11 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023 NEUTRAL CITATION C/SCA/15819/2023 ORDER DATED: 13/09/2023 undefined respondent No.2 through their Power of Attorney holder to give the details as noted above. In case such affidavits are filed, the Competent Authority, namely, respondent No.2 shall deal with the same strictly in accordance with law and take a decision in the matter of disbursement of enhanced compensation to the petitioners to the extent of their share in the land in question. Respondent No.2 is directed not to insist for opening of the joint account of twenty-eight land holders (including fourteen petitioners herein), inasmuch as, any such exercise does not seem feasible. However, the Competent Authority is mandated to follow proper procedure in the matter of disbursement of compensation, to all the co-tenure holders to the extent of their share in the lands in question.
11. With the above observations and directions, the writ petition stands disposed of. Direct service is permitted.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) GAURAV J THAKER Page 12 of 12 Downloaded on : Sat Sep 16 17:01:27 IST 2023