Daudbhai Alibhai vs State Of Gujarat
2021 Latest Caselaw 4503 Guj

         C/SCA/11468/2020                                      ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 11468 of 2020

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                             DAUDBHAI ALIBHAI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR KM SHETH(838) for the Petitioner(s) No. 1,2,3,4,5
MR. HARDIK MEHTA, ASSISTANT GOVERNMENT PLEADER/PP(99) for
the Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2
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 CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE A.C. RAO

                              Date : 22/03/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

In the facts of the case and having regard to the request and consent of learned advocates for the respective parties, the petition is taken up for final consideration today.

1.1 Rule, returnable forthwith. Learned Assistant Government Pleader Mr. Hardik Mehta waives service of Rule on behalf of the respondents.

1.2 Heard learned advocate Mr. K. M. Sheth for the petitioners and learned Assistant Government Pleader for the respondents.

2. By filling the present petition, the petitioner has prayed to set aside the order dated 10.02.2020 passed by respondent No.2 Special Land Acquisition Officer, Narmada Project, Vadodara. It is further prayed to direct the said respondent to decide the application of the petitioner No.1

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under section 28-A of the Land Acquisition Act, 1894 considering the petitioner to be the interested person and grant the compensation for the acquired land with other statutory benefits.

2.1 By the impugned order dated 10.02.2000, the Land Acquisition Officer rejected the application of the petitioner under section 28-A of the Act for re-determination of the amount of compensation which was prayed for on the basis of the award of the Reference Court.

3. Petitioner No.1 Daudbhai Alibhai, petitioner No.2 Gulambhai Daudbhai, petitioner No.3 Mahemudaben Gaudbhai, petitioner No.4 Juliben @ Zulekhaben Daudbhai and petitioner No.5 Firozaben Daudbhai have in their petition stated that petitioner No.1 Daudbhai Alibhai was the owner and occupier of land bearing Survey No. 544 admeasuring 14,973/- sq. mtrs., Survey No. 344 admeasuring 16235 sq. mtrs., Survey No. 314 (old No. 292) admeasuring 10724 sq. mtrs., Survey No. 303 (old No. 284/1) admeasuring 5362 sq. mtrs. situated at village Dhaniyavi, Taluka and District Vadodara.

3.1 Out of the said survey numbers, the respondents acquired 696 sq. mtrs. of land out of Survey No. 314/B and land admeasuring 500 sq. mtrs. from Survey No. 303/B for the purpose of construction of Shahpura Minor canal under the Narmada project. Notifications under section 4 and section 6 came to be issued on 2.4.1992 and 29.10.1992 respectively. The award was declared under section 11 of the Act on 31.5.1993. The Land Acquisition Officer awarded compensation at the rate of Rs. 2.40 to Rs. 3.60 per sq. mtrs. Possession of the said land was acquired on 31.5.1993 and the same stood vested in the state government.

3.2 It is stated that after the aforesaid acquisition, petitioner No.1 distributed the remaining land, that is other than the acquired land, by

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way of family distribution on 13.6.1994 between the petitioner Nos. 2 to 5 as per the details mentioned in the petition. It appears that Talati-cum- Mantri mutated the Revenue Entry pursuant to the said family distribution. The specific case of the petitioners in the petition is that petitioner No.1 distributed amongst the family members only the remained land, which was acted upon in the year 1994.

3.3 Subsequently, the Reference Court, Vadodara, on 23.7.2016, pursuant to Reference Case filed by other land owners whose lands were also acquired under the same notification, passed judgment and order determining the market value of the acquired land at Rs. 10 per sq. mtrs. and thus the compensation was hiked. Petitioner No.1, however, had not made any Reference. The other petitioners were not the party before the State authorities in the said acquisition proceedings. Petitioner No.1 filed application under section 28-A of the Act for re-determination of the amount of compensation.

3.4 The said application came to be rejected as per the impugned order. The rejection of the application of the petitioner was rested on the ground that name of the petitioner was not mentioned in the Revenue Record in 7/12 extracts as on 13.6.1994 and that the petitioner had parted with all parcels of land to his family members by way of family distribution.

4. Learned advocate for the petitioner assailed the impugned order by submitting that rejection of the application of the petitioner for re- determination of the compensation under section 28-A of the Act was on irrelevant and non-germane grounds.

4.1 Learned Assistant Government Pleader defended the order by filing affidavit-in-reply. On the basis of the contents and contentions of the affidavit-in-reply, in which it was inter alia stated by annexing the

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copies of the Record of Rights in form of Form-6 that, "On perusal of the revenue record it emerge that the petitioner no.1 has distributed entire parcel of land including the land which is acquired, in favour of Ibrahimbhai Daudbhai, Gulam Daudbhai, Mehmudaben Daudbhai, Juliben Daudbhai, Firozaben Daudbhai, the copy of the record of right of form no.6 maintained by the Revenue Authority is annexed hereto", it was contended that the petitioner had waived his entire share in the property in favour of the different individual family members. Therefore, the petitioner could not be said to be interested person to maintain application under section 28-A of the Act.

5. Section 28-A provides for re-determination of the amount of compensation on the basis of the judgment and award which may have been rendered by the court in similar cases under the same notification though the petitioners had not invoked the reference. The provision entitles all interested persons to seek excess amount of compensation as may have been awarded by the Reference Court above what was awarded by the Collector in its award under section 11 of the Act. Such persons are treated to be the interested persons to claim compensation at an excess rate where such excess compensation is awarded by the Reference Court provided their lands were covered under the same notification under section 4 of the Act. Sub-section (2) of section 28-A says that the Collector on receipt of such application under sub-section (1), shall conduct inquiry.

5.1 In light of the above provision, when the facts on hand are considered, the petitioner was the owner of the land acquired under notifications issued in the year 1992. Compensation was declared in the award published on 31.5.1993. The petitioner who was the owner of the land at the time of when it was acquired, subsequently in the year 1994 distributed the land amongst family members. It was sought to be

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highlighted that the petitioner has distributed even the acquired land. The said fact is hardly relevant, since those lands had already been vested with the government upon acquisition.

5.2 The grounds mentioned by the Acquisition Officer while rejecting the application of the petitioner under section 28-A could hardly sustain, when it is reasoned that the petitioner no.1 had distributed the land amongst the family members. This distribution took place in the year 1994. The second ground is that name of the petitioner did not figure in the revenue records. Taking the second ground first, the same is entirely misconceived as the petitioner's name could not have been continued in the Revenue Record as the lands were acquired and it vested in the government. Admittedly, however, the petitioner was the owner of the land acquired and his name stood in the Revenue record before the effect of acquisition was given in the Revenue Record. The ground that the lands were distributed in favour of the family members is hardly germane. The distribution took place in the year 1994 upon which the entry was mutated. Admittedly, on the date when section 4 notification was issued, the petitioner was the owner owner of the land. This would hardly affect right of the petitioners. The petitioner No.1 seeks higher compensation on the basis of the award in respect of the lands covered under the same notification under section 4 by applying under section 28-A of the Act. The petitioner No.1 could be indeed be said to be an interested person to be entitled to seek benefit of provision of section 28-A.

6. As the grounds on which the impugned order dated 10.2.2000 passed by respondent No.2 Special Land Acquisition Officer rejecting the application of the petitioner under section 28-A of the Act do not stand valid in eye of law, the said order is set aside. Respondent No.2 is hereby directed to decide the application of the petitioner No.1 afresh in

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accordance with law treating the petitioner No.1 to be the interested person and award him the compensation for the acquired land together with the statutory benefits at par with the other land owners.

6.1 Respondent No.2 shall take necessary decision within four weeks from the date of receipt of copy of this order and the compensation shall be paid within further three weeks from the date of such fresh decision.

7. Petition stands allowed as above. Rule is made absolute in the said terms.

(N.V.ANJARIA, J)

(A. C. RAO, J) C.M. JOSHI