Dharmeshkumar Rajnikant Patel vs State Of Gujarat
2021 Latest Caselaw 18222 Guj

     C/SCA/18356/2021                                     ORDER DATED: 08/12/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 18356 of 2021
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                        DHARMESHKUMAR RAJNIKANT PATEL
                                    Versus
                              STATE OF GUJARAT
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Appearance:
ADITI S RAOL(8128) for the Petitioner(s) No. 1,2,3,4,5,6,7,8
ARJUN R SHETH(7589) for the Petitioner(s) No. 1,2,3,4,5,6,7,8
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 : 08/12/2021

                                    ORAL ORDER

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

1. We have heard learned advocate for the petitioners, Mr. K.M. 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 petitioners have prayed for the following reliefs:

"(A) The Petitioners therefore most respectfully pray that: Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction declaring that the impugned resolutions, Dated: 10/11/2016 and 11/9/2018 (to the extent it is made prospective) issued by the Government of Gujarat, Revenue Department Bearing No. LAQ 22 2014/179/GH, are null and void;

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 No. 2 to

C/SCA/18356/2021 ORDER DATED: 08/12/2021

amend / modify / revise the Award, Dated: 25-05-2017, Bearing No. LAQ. Vadodara Mumbai Express Way/ Sokhdakhurd Compensation CASE No.21/2013 and re-compute the compensation qua the lands of the Petitioners by multiplying the market value as determined under Section 26 (1) of the LARR, 2013 Act with a Factor of 2 (two) and applying all other statutory benefits as provided under the LARR Act, 2013 including Solatium under S. 30 (1), interest under S. 30 (3) and be further pleased to direct the respondents to pay the same, with interest from 25.05.2017 @ 9% for the first year and 15% per annum for subsequent years till date of realisation; within 6 weeks of the judgement;

C) Pending admission, hearing and final disposal of the Petition, your Lordships may be pleased to restrain the respondents from using, altering, making any construction of any kind on the land of the Petitioner;

D) ..................."

3. It is the submission of the learned advocate appearing for the petitioners that petitioners are agriculturists and are holding land admeasuring 17956 H. Are Sq. Mtrs., bearing Survey No.105 at Village Sokhdakhurd, Taluka Padra, District Vadodara. The said land is under cultivation and the petitioners is totally dependent upon it for their livelihood. The land in question according to learned advocate for the petitioners 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 for the petitioners, 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

C/SCA/18356/2021 ORDER DATED: 08/12/2021

India in exercise of power under Section 3A of the National Highways Act, 1956 the land of the petitioners 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 25.05.2017 bearing No. LAQ/Vadodara-Mumbai Express Way/Sokhdakhurd Compensation Case No.21/2013 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

C/SCA/18356/2021 ORDER DATED: 08/12/2021

also be disposed of, following the order passed in Special Civil 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 petitioners 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 petitioners have moved for re-determination of compensation before the Arbitrator under Section 3G (5) of the National Highways Act, 1956, the petitioners 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