Gujarat High Court
Legal Heirs Of Maganbhai ... vs Deputy Collector And Special Land ... on 8 March, 2021
Bench: N.V.Anjaria
C/SCA/15672/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15672 of 2020
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LEGAL HEIRS OF MAGANBHAI ISHWARBHAI PATEL CHANDUBHAI
MAGANBHAI PATEL
Versus
DEPUTY COLLECTOR AND SPECIAL LAND ACQUISITION OFFICER
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Appearance:
MR MM SAIYED(1806) for the Petitioner(s) No. 1
MS. DIVYANGNA JHALA, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE A.C. RAO
Date : 08/03/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
In the facts of the case and with request and consent of the parties
through their respective learned advocates, the petition was taken up for
final hearing.
1.1 Rule returnable forthwith. Learned Assistant Government Pleader
Ms. Divyangna Jhala waives service of Rule on behalf of the respondent
State.
1.2 Heard learned advocate Mr. M. M. Saiyed for the petitioners and
learned Assistant Government Pleader.
2. The petitioner has prayed to set aside the order dated 16.9.2020
passed by the Deputy Collector & Special Land Acquisition Officer,
C/SCA/15672/2020 ORDER
Karjan Yojana, Unit No.1, Rajpipla. By the said order, the respondent has
rejected the application of the petitioner under section 28-A of the Land
Acquisition Act, 1894 on the ground that that notification under section 4
covering the lands of the petitioner was issued prior to coming into force
section 28-A of the Act, that is prior to 24.9.1984.
3. The land belonging to the petitioner was survey No. 341
admeasuring 2 Hecter 71 Are and 52 sq. mtrs. situated at village
Padvaniya, Taluka Jhagadiya, District Bharuch which came to be
acquired for Karan Irrigation Yojana for which notification under section
4 and section 6 came to be published on 21.7.1983 and on 4.7.1984
respectively. The Land Acquisition Officer declared award No. 50 of
1982 under section 11 of the Act on 16.8.1986,
3.1 It was stated that one of the land owners pursued his Reference
under section 18 of the Act against award which was passed by the Land
Acquisition Officer. On 24.1.2013, the Court of 8th Additional Senior
Civil Judge, Bharuch, allowed the Reference and awarded Rs. 9.42 as an
additional compensation for the lands acquired. It is on the basis of the
said award and enhanced compensation granted thereunder, the petitioner
filed application under section 28A of the Land Acquisition Act, 1894
requesting for additional compensation. The said application was filed as
back as on 19.3.2013, however, it remained undecided.
4. The issue is no longer res integra.
5. In Ramjibhai Harkhabhai vs. Second Extra Special Land
C/SCA/15672/2020 ORDER
Acquisition Officer & Another [ 1992 (1) GLH 194], the facts were
nearly identical wherein it was held that applicability of section 28-A has
reference to the date of making of the award and not to the date of
notification under section 4 of the Act, observing as under,
"The provisions of Section 28A came into force with effect from 24th
September, 1984 by Section 19 of Act 68 of 1984. It, therefore, means that on
the basis of any award made by the Court under Section 18 of the Act after the
coming into force of Section 28A any person interested in any other land
covered by the same Notification under Section 4 of the Act can make an
application under Section 28A for re-determination of amount of
compensation on the basis of the amount awarded by the Court. The
provisions of Section 28A would cover all the awards made by the Court on
and after 24-9-1984 being the date on which the said provision was brought
into force. Admittedly the award of the Court was made in Land Acquisition
Case No 67 of 1983 and other group matters on 2nd May, 1987 by the Second
Extra Assistant Judge, Narol which was after coming into force of Section
28A of the Act. Reference to Notification under Section 4(1) of the Act which
is made in Section 28A is only with a view to identify the class of persons
interested who can make an application for re-determination of the amount of
compensation on the basis of the award of the Court. There is no justification
whatsoever for the view that Section 28A of the Act would not apply to cases
where Notification under Section 4(1) of the Act is issued prior to the date on
which the said provision was brought into force. "
5.1 The decision in Ramjibhai Harkhabhai (supra) was followed by
the Division Bench in Legal Heirs of Late and WD/O. Madhusudan
Dalsukhram Bhatt vs. Special Land Acquisition Officer, Vadodara
and Ors. [ 2017 (4) GLR 3439], in which the court observed,
"The judgment of the Apex Court in the case of Pradeep Kumari (supra)
C/SCA/15672/2020 ORDER
rendered by the three Judge Bench, held that application for redetermination of
the compensation is required to be made within three months from the date of
the award and such Right to make an application arises in favour of the person
aggrieved from the award of the Court on the basis of which person is making
application for redetermination of compensation. While disagreeing with the
judgment in the case of Babua Ram (supra), which is of two Judge Bench only
to the extent of the view expressed that the application under Section 28-A for
redetermination of the compensation can only be made on the basis of the first
award, i.e. made after coming into force of Section 28-A, while disagreeing,
but proceeded to hold that that the benefit of redetermination of the amount of
compensation under Section 28-A can be availed of on the basis of any one of
the awards that has been made by the Court after coming into force of Section
28-A, provided the applicant, seeking such benefit, makes application under
Section 28-A within the prescribed period of three months from making of the
award on the basis of which redetermination is sought."
5.2 The decision in Ramjibhai Harkhabhai (supra) was followed by
the Division Bench in Legal Heirs of Late and WD/O. Madhusudan
Dalsukhram Bhatt vs. Special Land Acquisition Officer, Vadodara
and Ors. [ 2017 (4) GLR 3439], in which the decision of the Apex
Court in Union of India vs. Pradeep Kumari [(1995) 2 SCC, page
736] was referred to wherein it was held that the benefit of re-
determination of the amount of compensation under section 28-A of the
Land Acquisition Act could be availed on the basis of any one of the
awards that has been made by the court after coming into force section
28-A of the Act provided that the applicant makes application under
section 28-A of the Act within the prescribed period of three months from
the making of award on the basis of which redetermination is sought.
5.3 In yet another order in Ishwarbhai Chandulal Patel vs. Deputy
Collector & Special Land Acquisition Officer being Special Civil
C/SCA/15672/2020 ORDER
Application No. 15692 of 2020 decided on 28.1.2021, the Division
Bench of this court followed Madhusudan Dalsukhram Bhatt (supra)
and referred the Apex Court decision in Pradeep Kumari (supra). The
Division Bench quashed the order of Special Land Acquisition Officer
who had refused to entertain the application under section 28A of the Act
on the ground that notification under section 4 of the Act was prior to the
date of award and directed the authorities to pass fresh orders within
stipulated time.
6. As a result of the above discussion and the position of law
emanating, present petition deserves to be allowed. Resultantly, the
decision of the respondent Special Land Acquisition Officer reflected in
his communication dated 16.9.2020 rejecting the application of the
petitioner under section 28-A of the Land Acquisition Act, 1894, on the
aforementioned ground, is hereby set aside. The respondent Deputy
Collector & Special Land Acquisition Officer is directed to pass fresh
order on merits on the application of the petitioner within a period of
eight weeks from the date of receipt of copy of this order.
7. The petition stands allowed and disposed of in terms of the above.
Rule is made absolute.
(N.V.ANJARIA, J)
(A. C. RAO, J)
C.M. JOSHI
