Gujarat High Court
Hemabhai Joitabhai Kaidva vs State Of Gujarat on 20 January, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1273/2019 ORDER DATED: 20/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1273 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 12902 of 2014
With
R/LETTERS PATENT APPEAL NO. 1274 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 12903 of 2014
With
R/LETTERS PATENT APPEAL NO. 1275 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 12906 of 2014
With
R/LETTERS PATENT APPEAL NO. 1276 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 12904 of 2014
With
R/LETTERS PATENT APPEAL NO. 1277 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 12906 of 2014
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HEMABHAI JOITABHAI KAIDVA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. DARSHAN GANDHI, ADV. FOR MR SP MAJMUDAR(3456) for the Appellant(s)
No. 1
MS. HETAL PATEL, ASSISTANT GOVERNMENT PLEADER for the Respondent(s)
No. 1,2,3
MR ASPI M KAPADIA(1865) for the Respondent(s) No. 4
MS DELSHAD A KAPADIA(10238) for the Respondent(s) No. 4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 20/01/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) The above noted five writ petitions arose out of the separate orders passed by the Collector under Section 10 of the Gujarat Water and Gas Pipelines (Acquisition of Rights of Users in Land) Act, 2000. These appeals arise out of the five writ petitions, which has been decided by a common judgment and order dated Page 1 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined 01.04.2019 passed by the learned single Judge, subject matter of challenge herein. We have heard all the appeals together with the consent of the learned counsels for the parties and they are being decided by this common judgment.
2. Heard the learned counsels for the parties and perused the record.
3. The instant appeals are directed against the judgment and order dated 01.04.2019 passed by the learned single Judge, whereby the writ petitions challenging the order dated 03.07.2014 passed by the Collector has been dismissed, alongwith the prayer for enhancement of compensation prayed in the application filed under Section 10 filed of the Gujarat Water and Gas Pipelines (Acquisition of Right of Users in Land) Act, 2000 (hereinafter referred to as 'the Act, 2000').
4. It is the case of the petitioners that the determination of compensation by the competent authority by award dated 12.01.2012 was not meeting with the criterias for determination of the compensation and further that the petitioners filed an application under Section 10(2) (5) for re-determination of compensation by the Collector, raising the grievance about the manner of computation of compensation has been made by the competent authority.
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5. Placing the order passed by the Collector dated 3.7.2014, it is vehemently argued by the learned counsel for the petitioner that the Collector committed an error of law in rejecting the independent valuer's report dated 28.10.2013, which was the report of an exert towards the loss caused to the land simply on the premise that the report was obtained after a period of approximately two years from the date of the determination of market rate of the land-in-question for the purposes of compensation. The submission is that the Collector could not have ignored the valuer's report on the ground of delay, when there is no time period provided for making an application under Section 10 of the Act '2000 itself.
6. The submission is that the Rules 2001 namely the Water and Gas Pipelines (Acquisition of Rights of Users in Land) Rules, 2001 though provide time period in Rule 4 for making an application to the Collector for determination of the compensation, but the period of limitation of 90 days prescribed therein cannot be such, which would denude the Collector from exercise of its power, so as to examine the claim of the petitioner for re-determination of the compensation. The submission is that it was the duty of the Collector to adjudicate on the question of determination of just and fair compensation after giving due consideration to the valuer's report. The time period for making an application before the Collector as prescribed in Rule 4 cannot be said to be a fetter to the claim of the petitioner. The rejection of the application of the applicant on the ground of delay by the Collector, therefore, is in Page 3 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined teeth of the statutory provisions.
7. It is further argued that even the learned single Judge has reached at the conclusion that the Collector may have power to adjudicate the claim of the petitioners, but refused to remand the matter on the premise that no useful purpose would be served in sending the matter back when it was adjudicated in the year 2019. In the totality of facts and circumstances of the present case, it was argued that the order of the Collector for rejecting the claim of the petitioners for re-determination of compensation ignoring the valuer's report cannot be sustained and is liable to be set aside.
8. In rebuttal, the learned counsel for the respondent No.4 invited attention of the Court to the statement made in paragraph No. 4.4 of the affidavit dated 28.12.2015 filed on behalf of the respondent No.4, wherein a categorical statement has been made that the competent authority appointed under the Act 2000 had notified the petitioners and other tenure-holders about the issuance of the notification under Section 3(1) of the Act '2000 and invited objections within a period of 30 days of the receipt of the notice against the acquisition of right of user in respect of the land-in- question of village Changa. Objections were filed by some of the land holders including the petitioners and personal hearing was accorded on 15.04.2008 to all the land owners, who had filed their objections. It is further stated that such objections filed were primarily in relation to the amount of compensation, where it was informed to the land owners that the compensation in accordance Page 4 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined with the provisions of Section 10 of the Act '2000 would be paid to the land owners. It is further stated that even the objection given by the petitioners to the issuance of notification under Section 3(1) of the Act '2000 was with regard to the quantum of compensation.
9. Reply to this affidavit in rejoinder has been filed by the petitioner wherein while denying the averments made in paragraph No. 4.4 of the affidavit of the respondent No.4, it is stated that the dispute in the present case is with regard to quantum of compensation and the explanation given by the respondent authorities with regard to need for acquiring the land of the petitioner is not relevant.
10. We may note that the provisions in Rule 3 of the Rules, 2001 provide the manner of filling of claim for compensation. Rule 3(1) would provide that any person interested in the proposed land may file his claim for compensation before the competent authority. The proviso to sub-rule(1) of Rule 3 further states that the competent authority may admit any claim within 30 days after the expiry of period specified in the rule if he is satisfied that the applicant had sufficient cause for not making the application within such specified period. Sub-rule(2) of Rule 3 states that the claim for compensation shall be filed in the Form appended to the Rules. Sub-rule(3) further states that the competent authority on receipt of claim for compensation, shall make such an inquiry as it deems fit and fix the compensation and thereafter inform the parties referred to in sub-section(2) and (5) of Section 10 of the amount of Page 5 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined compensation so fixed.
11. Rule 3, thus, provides the mechanism for putting up the claim for compensation before the competent authority by the persons interested for the acquiring the land or the land proposed to be acquired. There was, thus, opportunity before the petitioners to make their claim before the competent authority in accordance with the provisions of Rule 3, in the Form appended to Rules as prescribed in sub-rule(2) of Rule 3. There is no statement in the writ petition or in the affidavit filed in rejoinder on behalf of the petitioners that the petitioners had filed their claim of compensation in accordance with the procedure prescribed in Rule 3 of the Rules, 2001. The fact stated in paragraph No. 4.4 of the affidavit filed on behalf of the respondent No.4, as noted hereinabove, and the reply thereto on the part of the petitioners makes it clear that the petitioners were aware of the proceedings of acquisition and have filed their objections before the competent authority in the matter of proposed acquisition and also claimed for compensation.
12. Be that as it may, the dispute in the present case is about the quantum of compensation as per the claim made by the petitioners before the Collector in the application dated 6.3.2014 filed under Section 10(5) of the Act '2000.
13. The record shows that the information with regard to the award dated 12.01.2012 was given to the petitioners by sending a Page 6 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined communication dated 08.02.2012 which is appended at page No. '44' of the paper book. The said communication itself records that the petitioner was required to make an application to the Collector within a period of 90 days, if advised. In view of the said communication, the period of 90 days for making application in accordance with Rule 4 of the Rules, 2001 would come into play. There is no explanation in the writ petition nor any material could be placed before us by the learned counsel for the petitioner which would be in the nature of reasonable explanation for not approaching the Collector within the time prescribed in Rule 4 and further filling the application on 06.03.2014.
14. On a query made by the Court, the learned counsel for the petitioners would submit that the petitioners had filed the application for re-determination of the compensation before the Collector after obtaining the valuer's report which is dated 28.10.2013. However, the said bald statement cannot be accepted as an explanation for the delay on the part of the petitioners, when they were intimated about the award in the month of February, 2012 itself. The submission of the learned counsel for the petitioners that the period of 90 days prescribed in Rule 4 is only directory as the word "may" has been used, is found to be misconceived for the simple reading of the provisions which used the words "not later than 90 days of receipt of the intimation from the competent authority under sub-rule (3) of Rule 3".
15. In light of the language employed in the Rule 4, the word Page 7 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined "may" has to be read as "shall", to hold that the period of limitation of 90 days prescribed in Rule 4 is a statutory limitation provided for making application before the Collector by a person interested, in case, he is aggrieved by the award made by the competent authority. By the use of words " not later than 90 days of the receipt of the intimation from the competent authority" the intention of the legislature is clear that any delay would have to be explained by the person making the application beyond the period prescribed therein.
16. We are not called upon to deliberate on the question as to whether the period of 90 days is directory or mandatory and we do not propose to enter into the said question in the facts and circumstances of the present case where there is absolutely no explanation, much less reasonable explanation, for the delay of more than two years in making the application to the Collector, which admittedly was filed in the month of March, 2014.
17. For all the above reasons, we are not impressed by the arguments of the learned counsel for the petitioners that the Collector was required to adjudicate the application necessarily on merits for re-determination of compensation and he could not have rejected the report of the valuer on the ground of delay.
18. However, further perusal of the order passed by the Collector indicates that the Collector has also gone into the merits of the claim of the petitioners and has noted that the compensation and Page 8 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined the damage, which is sought to be claimed, was without supporting evidences. It was noted by the Collector that the disputed land was an agricultural land and the amount of compensation has been decided on determination of the market price. The claim of the petitioners that the land-in-question was a non-agricultural land and the value of the land has to be determined as non-agricultural land for the purpose of determination of compensation, is without any basis. No evidence has been adduced by the petitioners in support of their submissions that the price of trees and crops is more than what has been determined by the competent authority. The submission of loss to the crops of other areas of land due to excavation of the portion of the land is without any supporting evidence. It is noted that there does not appear to be possibility of damages as the excavation by the JCB was to a limited area and depth. With these observations, it was held by the Collector that the demand for more compensation cannot be accepted and further that the acquisition is for the right of user and the compensation determined for the same is just and proper.
19. Taking note of the above findings returned by the Collector, we would like to go through the valuer's report which is the bone of contention of the learned counsel for the petitioners. A perusal of the report dated 28.10.2013 of the government approved valuer for agricultural land indicates that the valuer had computed the compensation of Rs. 10,42,014/- for four heads namely :- (1) damage to the crops of cotton plants on the plot, Rs. 7,47,614/-;
(ii) damage caused to the entire land, for the period during which Page 9 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined the land remained vacant, Rs. 1,80,000/-; (iii) cause of reclamation of the land, Rs. 43,200/- and (4) cost of restoring the fertility of the land by using the organic and chemical fertilizer, which is Rs. 71,200/-. Further perusal of the page No. '55' of the paper book where calculation of Rs. 10,42,014/- has been made by the valuer shows that the compensation was computed for the entire area of plot-in-question namely 9914 sq. mtrs. (.9914 Hec.) whereas the affected area is only 2680 sq.mtrs. From a further perusal of the break-up of computation given in Schedule-I attached to the report dated 28.10.2013 at page No. '56' of the paper book shows that the computation was made for the entire plot for an area of 9914 sq.mtrs. Similarly, under the other three heads noted hereinabove in parishist 2, 3 and 4, loss had been computed with respect to the entire plot which is evident from the computation made therein which was with regard to usage of 40 tractor of organic manure, etc.
20. There is no dispute about the fact that only a portion of approximately 2680 sq.mtrs. of the land-in-question had been acquired and utilized towards the Right of Users Act, 2000 which cannot be said to be permanent acquisition of the total land admeasuring area of 9914 sq.mtrs. held by the petitioner.
21. Taking note of the above, we find no infirmity in the order of the Collector, where it is mentioned that no evidence has been produced before the Collector to modify the award. Lastly, the submission of the learned counsel for the petitioners that the Page 10 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined valuation of the loss caused to the petitioners as a result of activities of the respondent No.4 in utilizing the land-in- question under the Act '2000, suffice it to note that under the Rules framed under the Act, 2000, as noted hereinabove, there was sufficient opportunity to the petitioners to put up their claim before the competent authority and further to seek re-determination of compensation before the Collector in light of the Rules 3 and 4 of the Rules '2001, as noted hereinabove.
22. We may also clarify, as placed by the learned counsel for the respondent No.4, that the issue in the original writ petitions was with respect to the damage, loss or injury sustained by the petitioners in the land as per Sub-section (1) of Section 10. The compensation calculated in the acquisition of right of user in the land determined under sub-section(4) of Section 10 is not under challenge. The petitioners have sought for re-determination of compensation for the loss of crops and the damage/injury caused on account of the work carried by the respondent No.4 in the land-in question.
23. In the limited scope of judicial review under Atticle 226 of the Constitution of India, it would not be possible for the writ court to take any exception to the order of the Collector rejecting the claim of the petitioners.
24. In the totality of the facts and circumstances of the present case and for the reasoning given hereinabove in addition to the Page 11 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025 NEUTRAL CITATION C/LPA/1273/2019 ORDER DATED: 20/01/2025 undefined reasoning given by the learned single Judge, we do not find any merit in the contention of the petitioner. No interference is called for in the judgment and order dated 01.04.2019 passed by the learned single Judge.
25. The appeals stand dismissed, being devoid of merit. No order as to costs.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) C.M. JOSHI/PPS Page 12 of 12 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 02:42:09 IST 2025