Patel Savitaben Punambhai And D/O ... vs The Competent Authority And ...
2021 Latest Caselaw 18111 Guj

     C/SCA/17899/2021                            ORDER DATED: 06/12/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17899 of 2021
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        PATEL SAVITABEN PUNAMBHAI AND D/O SHANKARBHAI
                            Versus
     THE COMPETENT AUTHORITY AND SPECIAL LAND ACQUISITION
                           OFFICER
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Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1,2
MS DEVANSHI K PATEL(11293) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3
MR KM ANTANI, AGP for the Respondent(s) No. 1
MR MAULIK NANAVATI for the Respondent(s) No. 2
MR DEVANG VYAS for the Respondent(s) No. 3
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 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                            Date : 06/12/2021

                             ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. We have heard Mr. Jigar P. Raval, learned advocate for the petitioner, Mr. Kanva Antani, learned Assistant Government Pleader for respondent No.1, Maulik Nanavati, learned counsel for respondent No.2 (National Highway Authority of India), and Mr. Devang Vyas, learned Assistant Solicitor General for respondent No.3.

2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

"(A) Your Lordships may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction and thereby be pleased to direct the respondent authority to amend, modify, revise the award dated 5.09.2017 bearing LAQ Vadodara-Mumbai-Expressway for

C/SCA/17899/2021 ORDER DATED: 06/12/2021

village Bhayli Compensation Case No.17/2013 qua the petitioners and re-compute the compensation required lands for the petitioners by multiplying the market value as determined U/s. 26(10) of the said Act with a Factor-2 and Section 30(1), interest U/s. 30(3) and be pleased to further direct the respondent to pay the same with an interest from 5/09/2017 at the rate of 9% for the first year and 15% per annum for the subsequent years till date of realization within 6 (six) weeks of the judgment.

(C) Pending admission, hearing and final disposal of the petition, Your Lordships may be pleased to restrain the respondent from using, altering, making any construction of any kind on the land of the petitioners;

(D) Any other and further relief deemed just and proper be granted in the interest of justice."

3. It is the submission of Mr. Jigar P. Raval, learned advocate appearing for the petitioner that petitioner is an agriculturist and is holding land admeasuring 8147 and 40 Sq. Mtrs., bearing Survey/ Block Nos.1028/A and 1028/B at Village Bhayli, District Sub- District Vadodara. The said land is under cultivation and the petitioner is totally dependent upon it for his livelihood. The land in question according to learned advocate Mr. Raval is not falling within the limits of any 'transitional area, smaller urban area or larger urban area' as defined and specified under Article 243Q (2) and is not part of any area falling within the limits of any Urban Local body or Municipality or Municipal Corporation and as such, the land is not covered under any urban area. According to learned advocate Mr. Raval, the major economic activity is agriculture and there are no significant non- agriculture activities in the village or surrounding area and the village limits of Vadodara Urban Development Authority, however, no T.P. Scheme is proposed in the area and the land is still in agriculture zone. It is contended that by virtue of Notification dated 03.03.2014, issued by the Government of India in exercise of power under Section 3A of the National

C/SCA/17899/2021 ORDER DATED: 06/12/2021

Highways Act, 1956 the land of the petitioner was undertaken for acquisition for the purpose of construction of Vadodara- Mumbai Express way and by virtue of further Notification under Section 3D, published on 05.03.3015, the land vested in respondent No.3. It is contended that for the purpose of compensation, the competent authority passed an award on 05.09.2017 bearing No. LAQ/Vadodara-Mumbai Express Way/Bhayli Compensation Case No.17/2013 and the market value of the acquired land was arrived at and though the acquired land is situated in rural area, the authority i.e. respondent No.2 applied Factor 1 and not Factor 2. Hence, the present petition. The main grievance raised in the petition is that erroneously respondent No.2 authority applied Factor 1 instead of Factor 2.

4. At this juncture, learned counsels appearing for the respective parties submitted that the issue involved in this petition is identical to the issue decided by the Coordinate Bench of this Court in case of Shah Rajesh Manibhai vs. National Highway Authority of India rendered in Special Civil Application No. 5913 of 2021 dated 23.04.2021. The said order is further based upon a Division Bench judgment of this Court dated 12.09.2019 passed in a group of petitions led by Special Civil Application No. 8734 of 2019, which has since been affirmed by the Supreme Court as the Special Leave Petition filed by the State Government has been dismissed on 07.01.2021 in Special Leave Petition (Civil) Diary No. being 18777 of 2020. It is also submitted that the issue in the present case is identical to the case of Dilipbhai Ganpatbhai Parmar vs. Competent Authority rendered in Special Civil Application No.12140 of 2021 dated 27.08.2021. It was, therefore, submitted that this petition may also be disposed of, following the order passed in Special Civil

C/SCA/17899/2021 ORDER DATED: 06/12/2021

Application No.5913 of 2021 dated 23.04.2021. No other submissions were made.

5. Learned counsel for respondent No.2 - NHAI, further submitted that as in the other cases if it is found that the petitioner is entitled to Factor-"2" being applied for determination of compensation and other benefits, respondent No.2 - Authority shall make deposit within 21 days of such determination.

6. Thus, following the decision of the Coordinate Bench rendered in Special Civil Application No.5913 of 2021 dated 23.04.2021, the present Petition is disposed of with the same directions and terms as contained in the order dated 23.04.2021 passed in Special Civil Application No.5913 of 2021.

7. However, it is clarified that if the petitioner has moved for re-determination of compensation before the Arbitrator under Section 3G (5) of the National Highways Act, 1956, the petitioner may not insist for Factor-"2" claim or in the alternative the respondents may be permitted to appraise the Arbitrator of the said issue, so that there is no further multiplicity or complications in the proceedings.

8. The present petition, therefore, stands DISPOSED OF accordingly. There shall be no order as to costs.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) OMKAR