Gujarat High Court
Diwanbhai Keshavbhai Tadpada vs State Of Gujarat on 5 March, 2021
Bench: N.V.Anjaria
C/SCA/12263/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12263 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE A.C. RAO
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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DIWANBHAI KESHAVBHAI TADPADA
Versus
STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
MS DIVYANGNA JHALA, AGP (99) for the Respondent(s) No. 1 to 3
MR RD DAVE(264) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE A.C. RAO
Date : 05/03/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr.Vimal Purohit for
the petitioner, learned Assistant Government Pleader
Ms.Divyangna Jhala for the respondent Nos.1, 2 and 3
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and learned advocate Mr.R.D.Dave for the respondent
No.4.
2. By way of this petition, the petitioner has
prayed to set aside the award dated 20th September,
1986 passed under the Land Acquisition Act, 1894 by
the Special Land Acquisition Officer, Unit-I,
Ahmedabad-respondent No.2 herein. It is prayed to
declare that the acquisition proceedings including
the aforesaid award have lapsed under Section 24(2)
of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement
Act, 2013.
3. Land bearing Survey Nos.537, 538, 539, 549,
550 situated at Village Kamla, Taluka Nadiad,
District Kheda, had been under cultivation of the
petitioner and other co-owners which, according to
the petitioner, were ancestral properties. These
lands came to be acquired for the purpose of
respondent No.4-Gujarat Industrial Development
Corporation (GIDC). Notification under Section 4 was
issued on 13th November, 1978 whereas Notification
under Section 6 of the Land Acquisition Act, 1894
came to be issued on 20th November, 1981. The
respondent No.2 declared his award under Section 11
of the Act on 20th September, 1986.
3.1 It is the case put-forth by the petitioner
that physical possession of the said land was not
taken over from the petitioner and other co-owners.
It was claimed in the petition that they have been in
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possession till date. It was also the case put up
that the petitioner and others have not accepted the
amount of compensation, and that such amount is even
not deposited in the government treasury.
3.2 Asserting the possession of the lands, the
petitioner stated that in the year 2009, the
communication was sent by respondent authority
seeking to evict the petitioner from the land. The
petitioner along with other land owners was called
upon to remain present. The petitioner claimed that
however, thereafter, no steps were taken to assume
the physical possession of the land. It was stated
that respondent No.4-acquiring body issued notice
dated 11th July, 2016 for taking the possession. It
was further averred that the land was not needed to
the Gujarat Industrial Development Corporation.
3.3 Thus, on the twin grounds that the
possession of the lands was with the petitioner and
that the amount of compensation was also not
received, the challenge was raised against the
acquisition proceedings in view of the provisions of
the new Act called Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, in particular invoking the
aids of Section 24(2) of the said Act.
4. In response to notice on 20th July, 2016
issued by the Court, the respondents appeared and
contested the petition. Respondent No.4-GIDC filed
its affidavit-in-reply through the Regional Manager,
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Vadodara.
5. The factual aspects which are undisputed,
emerging from the contents of the affidavit-in-reply
are as under, which are extracted from paragraph
Nos.4 to 9 thereof.
(i) Subsequent to the award passed under Section
11 of the Land Acquisition Act, 1894, the father of
the petitioner named Keshavbhai alongwith other two
land owners handed over the possession to the officer
on special duty on 29th January, 1988 by signing
possession receipts. The copy of possession receipt
was produced on record.
(ii) On the very day the officer on special duty
handed over lands of different survey numbers
including the land of the petitioner to respondent
No.4- GIDC- acquiring body. The possession receipt
produced on record evidenced the handing over of the
possession by officer on special duty to the GIDC.
(iii) The compensation amount was deposited by
GIDC in the account of special duty officer which in
turn was deposited in Revenue Deposits Account for
paying compensation to the land owners. The officer
on special duty informed Mamlatdar, Nadiad by order
dated 17th October, 1989 regarding such deposit by
forwarding copy of the award, schedule of account
holders, challans etc. with a request to make
payment.
(iv) The father of the petitioner did not accept
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the amount of compensation. The deposit of the amount
was made as Revenue Deposit under the Revenue Head as
per Resolution/ Circular of the State Government
dated 18th February, 1984. It was stated that many
land owners accepted the amount while in some case,
amount was deposited in the District Court under
Section 30 of the Act, 1894. As mentioned above, the
father of the petitioner did not accept the
compensation.
(v) After taking possession of the lands as
above, the petitioner encroached upon the land
illegally. An attempt was made to remove the
petitioner. A Panchnama dated 12th December, 2013 was
drawn in which the petitioner and others had
undertaken to vacate the lands within one month. This
Panchnama was signed by the petitioner.
(vi) Thereafter some of the land owners
instituted Civil Suit No.336 of 2003 in the Civil
Court at Ahmedabad against the eviction, which
injunction-suit came to be dismissed on 25th July,
2016. Since even thereafter the land was not vacated,
the eviction notice under Gujarat Public Premises
(Eviction of Unauthorized Occupants) Act, 1972 were
served on 03rd February, 2009 and 13th July, 2016.
(vii) Some of the original land owners have again
filed Civil Suit No.174 of 2016 against the GIDC in
the Nadiad Court praying for injunction, which suit
is pending.
5.1 The facts highlighted above about taking
C/SCA/12263/2016 JUDGMENT
over of possession of the land, depositing of
compensation, the petitioner not turning up to
receive the same, subsequent attempt on part of the
petitioner to encroach upon the land, dismissal of
suit of the other co-owners etc., find support from
the documents annexed. They unmistakably demonstrate
that the possession of the acquired land was already
taken over as back as on 29th January, 1988. The
petitioner had handed over the possession to the
government and the competent authority, thereupon had
handed over the same to the acquiring body-GIDC. The
possession was validly taken from the petitioner-
owner and stood handed over to the acquiring body. It
is therefore established that possession of the land
was taken over and the petitioner was divested of the
possession, which in turn was transferred to GIDC on
29th January, 1988.
5.2 Yet another aspect which surfaces from the
record is that the present petitioner Diwanbhai
Keshavbhai Tadpada addressed letters dated 29th
December, 2015 to the Mamlatdar (Revenue Department)
Nadiad, Rural and Sub Treasury Officer, Revenue
Department, Nadiad who accepted and admitted the fact
that petitioner's land was acquired by the State
Government for the purpose of Gujarat Industrial
Development Corporation and that he was required to
remain present to accept the amount of compensation
at Kamla Gram Panchayat. The petitioner further in
his letter stated that at that time he was not
willing to give the land to GIDC therefore he did not
accept the amount. It is stated that he was informed
C/SCA/12263/2016 JUDGMENT
by Mamlatdar that the compensation amount was
deposited as revenue deposit in the office of
Mamlatdar, Nadiad on 17th October, 1989 and the
petitioner was conveyed that he could come any time
to receive the said compensation amount as of right.
The petitioner requested in the said letter to issue
the certificate in that regard.
5.3 In Indore Development Authority Vs.
Manoharlal and Others, [(2020) 8 SCC 129], the
Constitutional Bench of the Apex Court considered in
detail the aspects of interpretation and the
applicability of Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013. It was
observed thus,
"Section 524(2) carves out an exception to
Section 24(1)(b), where the award has been
passed, and the proceedings are pending, but in
such proceedings, physical possession of the
land has not been taken, or compensation has not
been paid, proceedings shall lapse. There are
twin requirements for the lapse; firstly,
physical possession has not been taken and,
secondly, compensation has not been paid. In
case, possession has been taken but compensation
has been paid, there is no lapse of the
proceedings. The question which is to be decided
is whether the conditions are cumulative, i.e
both are to be fulfilled, for lapsing of
acquisition proceedings, or the conditions are
in the alternative ("either/or"). According to
the State and acquiring agencies, in a situation
where possession has been taken, and
compensation is not paid, there is no lapse:
also in case where compensation has been paid,
but possession not taken in a proceeding pending
as on 1.1.2014, there is no lapse. Sine qua non
is that proceeding must be pending. They argue
that the word "or" used in phrase 'the physical
possession of the land has been not taken, or
the compensation has not been paid', has 90 to
be interpreted as "and" as two negative
C/SCA/12263/2016 JUDGMENT
requirements qualify it. Furthermore, argues the
State when two negative conditions are connected
by "or," they are construed as cumulative, the
word "or" is to be read as "nor" or "and."
Naturally, the landowners argue to the contrary,
i.e., that lapse of acquisition occurred if
compensation were not paid, or possession were
not taken, 5 years before the coming into force
of the Act of 2013." (para 97)
5.3.1 The final conclusion was recorded in
paragraph No.366 of the decision which paragraph
No.366.3 is relevant to the issue presently involved
which is extracted herein.
"The word 'or' used in Section 24(2) between
possession and compensation has to be read as
'nor' or as 'and'. The deemed lapse of land
acquisition proceedings under Section 24(2) of
the Act of 2013 takes place where due to inaction
of authorities for five years or more prior to
commencement of the said Act, the possession of
land has not been taken nor compensation has been
paid. In other words, in case possession has been
taken, compensation has not been paid then there
is no lapse. Similarly, if compensation has been
paid, possession has not been taken then there is
no lapse."
5.3.2 Thus, it is held by Apex Court that unless
the twin requirements are fulfilled simultaneously,
the acquisition proceedings would not lapse. If the
possession is not taken over and compensation is
also not paid, the acquisition would lapse. In the
eventuality of either possession taken over but
compensation not paid, or the possession not taken
over but the compensation is paid, there would be no
lapsing.
5.4 At the time when the notice was issued in
the petition on 20th July, 2016, the petitioner had
relied on the decision of the Supreme Court in Pune
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Municipal Corporation v. Harakchand Misrimal Solanki
[(2014) 3 SCC 180] to persuade the Court. Upon
deliverance of the decision in Indore Development
Authority (supra), the decision in Pune Municipal
Corporation (supra) stands overruled. Even at the
time when notice was issued by the Court, it was
observed in the order that though the petitioner
claimed to be the occupier of the land and heir of
original owner-Keshavbhai Jhaverbhai Tadpada, such
averments regarding occupation etc. did not inspire
credibility. The Court had also mentioned about
aforesaid communication dated 08th July, 2016 from the
office of Mamlatdar, to further notice that the
possession of the land was taken over by GIDC on 29th
January, 1988. The petitioner was termed as
"unauthorised occupant". However, having regard to
the case of the petitioner that subsequent notices in
the year 2009 and 2016 were issued to him, the
observation was made that petitioner could have
availed his remedies under the Gujarat Public
Premises (Eviction of Unauthorized Occupants) Act,
1972. Now the law has been enunciated and settled in
Indore Development Authority (supra) by the Supreme
Court which will govern.
5.5 Applying and evaluating the admitted facts
of the case in light of the ratio laid down by the
Apex Court in Indore Development Authority (supra)
and the statements of law laid down in paragraph
No.366.3 thereof, there is no gainsaying that the
possession of the acquired land was taken over on 29th
January, 1988 from the petitioner by the authorities.
C/SCA/12263/2016 JUDGMENT
The petitioner did not remain in possession. The
compensation was deposited. The petitioner did not
turn up to receive the same, though he was intimated.
The contents of letter dated 29th December, 2015 speak
for themselves about the bona fide and conduct of the
petitioner.
6. Once there is an unescapable conclusion that
the possession of the land was taken and the
petitioner was divested of the possession which was
validly taken over by the competent authority and was
handed over to the acquiring body also, the necessary
consequence in law would be that the acquisition
proceedings initiated under the old Act of 1894 would
not lapse. Even if at subsequent stage, an illegal
re-entry is attempted by the petitioner to be on the
land, it would not come to any rescue nor would lead
to reversal of the position of law. The subsequent
entry of the petitioner, if at all to be believed,
could be said to be only in the nature of the act of
encroachment. By no stretch of reasoning, it would be
possible for the petitioner to take advantage to
contend that the acquisition proceedings have lapsed
under Section 24(2) of the new Act.
6.1 In view of the forgoing reasons and
discussion, no declaration as prayed for can be
granted that the acquisition proceedings in respect
of the lands in question have lapsed under Section
24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. The acquisition have not
C/SCA/12263/2016 JUDGMENT
lapsed nor could be treated to have been lapsed as
the possession was taken over and the compensation
was also deposited.
7. The petition stands meritless. It is
dismissed. Notice is discharged. All interim orders
and observations are vacated. There shall be no
costs.
(N.V.ANJARIA, J)
(A. C. RAO, J)
ANUP
