Gujarat High Court

Vaghela Jenubha Jasmatsang vs State Of Gujarat on 23 December, 2021

Bench: Ashutosh J. Shastri

      C/SCA/17223/2019                            ORDER DATED: 23/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 17223 of 2019
                               With
 CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2021
                                In
          R/SPECIAL CIVIL APPLICATION NO. 17223 of 2019
==========================================================

VAGHELA JENUBHA JASMATSANG Versus STATE OF GUJARAT ========================================================== Appearance:

MR APURVA R KAPADIA(5012) for the Petitioner(s) No. 1,2,3,4,5,6,7,8 MT TIRTHRAJ PANDYA ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,2 RULE SERVED(64) for the Respondent(s) No. 1,2 ==========================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 23/12/2021

ORAL COMMON ORDER

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

1. We have heard Mr. Apurva Kapadia, learned advocate appearing for the petitioners and Mr. Tirthraj Pandya, learned Assistant Government Pleader appearing for respondent nos. 1 and 2 (State authorities).

2. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs :-

"9(A) 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 amend/modify/revise the award dated 31.01.2018 bearing no. LAQ Case No. 1/2016/Chekhala and

C/SCA/17223/2019 ORDER DATED: 23/12/2021

recompute the compensation qua the land of the petitioner by multiplying the market value as determined under Section 26(1) of LARR 2013 Act with a factor of 2 (two) as per Section 26(2) and applying all other statutory benefits as provided under the Land Acquisition, Rehabilitation and Resettlement Act, 2013 including solatium under Section 30(1), interest under Section 30(3) and be further pleased to direct the respondents to pay the compensation so determined, with interest @ 9% for the first year and 15% per annum for subsequent years till the date of realization within six weeks of the judgment.

(B) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent no. 2 - authority to consider the case of the petitioners for applying factor two (2.00) for the lands of the petitioners, which have been acquired.

(D) Your Lordship may be pleased to pass such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."

2. The contention of the part of the learned counsel appearing on behalf of the petitioners is that the land of the petitioners is situated in the sim of Village Chekhala, Taluka : Sanand, District - Ahmedabad and the petitioners are the owners of the lands bearing Survey Nos. 815, 825, 823, 822, 833, 834, 843, 842 and 841 of the said village. This portion of lands had been acquired by the respondent authorities since the respondent authorities were desirous to construct Narmada Canal, as a result of this, possession of the lands was taken over on 22.11.2004 and thereafter, the lands of the petitioners were acquired by issuance of Notification under Section 4 of the Land Acquisition Act, and then after issuance of further Notification under Section 6 of the Land Acquisition Act, which was issued on 29.06.2011. Since at the relevant point of time, no award was passed, the petitioners had to approach this Court by way of

C/SCA/17223/2019 ORDER DATED: 23/12/2021

Special Civil Application No. 18072 of 2015 for seeking direction for the declaration of award and pursuant to the direction which has been issued on 10.12.2015, the respondents were under an obligation to declare the award within a period of three months from the date of order under the provision of the new Act i.e. Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Since time period was not maintained, the petitioners were constrained to file contempt proceedings in the form of Misc. Civil Application No. 2687 of 2016 and ultimately, notice was issued in Form No. 1 for the appearance of respondent no. 2 for non compliance of the order. Later on, after the said process having been carried out, the impugned award came to be passed by the respondents, but two main aspects according to the petitioners, were ignored by the authorities and declared the award without giving any interest as also compensation as prescribed under Section 30(3) of the Land Acquisition Act and under Section 80 of the Land Acquisition Act. Since statutory interest was not paid, the petitioners were again constrained to file Special Civil Application No. 3549 of 2018 for claiming statutory interest and the said petition after issuance of notice is pending. According to the petitioners, it appears that thereafter the State Government had come up with a Circular dated 11.09.2018 whereby the State authorities have resolved that in certain cases where the lands are falling within the rural area and by Notification of Government have been merged into the area of the development authority, in that case Factor-2 will be made applicable and by virtue of the said Circular, the Government has re-notified the areas which are to be considered and falling within the urban area. The grievance of the petitioners is that the said Circular came to

C/SCA/17223/2019 ORDER DATED: 23/12/2021

be challenged before this Court by a separate petition being Special Civil Application No. 8734 of 2019 and allied matter and the order came to be passed on 12.09.2019, disposing of the petitions. As a result of this, all lands which were acquired even prior to Notification dated 11.09.2018 and falling in rural areas will be given Factor-2 effect and thereby directed the authorities to pay compensation by applying Factor-2 as per Section 26(2) of the Act, along with other statutory benefits.

3. In view of the aforesaid proposition laid down in the present case also, the lands of the petitioners are situated within Village Chekhla though an area is included within the limits of urban area for all purposes, it is basically a rural area where local body Gram Panchayat is functioning and as such, instead of Factor-1, Factor-2 is required to be made applicable and additional compensation is required to be paid to the petitioners. Hence, the petitioners have approached this Court for the purpose of seeking the said benefit of Factor-2 by making the prayers as mentioned above. The learned counsel appearing for the petitioners has basically insisted that the authorities should consider the case of the petitioners by applying Factor-2 for lands of the petitioners which have been acquired and sought consequential other reliefs.

4. At this juncture, learned counsel 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

C/SCA/17223/2019 ORDER DATED: 23/12/2021

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 Application No.5913 of 2021 dated 23.04.2021.

5. Learned counsel for State authorities has submitted that as like in the other similar cases if it is found that the petitioners are entitled to Factor-"2" being applied for determination of compensation and other benefits, respondent - authority No. 2 will 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 in terms as contained in the order dated 23.04.2021 passed in Special Civil Application No. 5913 of 2021.

7. Accordingly, considering the aforesaid position, the present petition stands disposed of. There shall be no order as to costs. The authorities are direction to give effect to the decisions which are

C/SCA/17223/2019 ORDER DATED: 23/12/2021

mentioned herein-before.

All pending applications stand consigned to records.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) phalguni