Pirbhai Mohammadbhai Momin ... vs State Of Gujarat
2021 Latest Caselaw 4592 Guj

         C/SCA/13385/2020                                     ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 13385 of 2020

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PIRBHAI MOHAMMADBHAI MOMIN (SINCE DECD. THROUGH HEIRS AND
                         LRS)
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1,1.1,2
MS RUMI M GANDHI(3472) for the Petitioner(s) No. 1,1.1,2
MS. DIVYANGNA JHALA, AGP FOR RESPONDENT NO.1
MR PUNIT B JUNEJA(3972) for the Respondent(s) No. 2 to 8

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 CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE A.C. RAO

                              Date : 23/03/2021

                        ORAL ORDER

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

In the facts of the case and with the consent of the parties appearing through their respective learned advocates, the petition is taken up for final consideration.

1.1 Rule, returnable furthwith. Learned Assistant Government Pleader Ms. Divyangna Jhala waives service of Rule on behalf of respondent No.1 State, whereas learned advocate Mr. Punit Juneja waives service of Rule on behalf of private respondent Nos. 2 to 8.

2. The petitioners herein have challenged the order dated 20.7.2020 and 21.9.2020 passed by the Special Land Acquisition Officer rejecting the applications of the petitioners under section 28-A of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). It is further

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prayed to direct the respondents to allow the applications of the petitioners and to give to them additional compensation of Rs. 209.77 paise per sq.mtrs. as awarded by the Reference Court.

3. The petitioners, residents of village Telav, Taluka Sanand, District Ahmedabad, held land bearing Survey No. 53/2 and Survey No. 65/1 respectively situated in the same village. Their lands came to be acquired by the respondent authorities for Narmada project. The award under section 11 of the Act was declared to give compensation to the land owners whose lands were acquired. Some of the land owners being dissatisfied with the amount of compensation awarded by the Special Land Acquisition Officer, raised Reference before the competent Reference court under section 18 of the Act. The Reference Case No. 267 of 2012 came to be decided by the Court on 8.7.2017 granting additional compensation of Rs. 209.77 paise per sq.mtrs.

3.1 It is the case of the petitioners that though the present petitioners had not invoked the provisions of section 18 of the Act to submit their Reference, since their lands were acquired under the same notification, they were entitled to claim benefit of the judgment and award of the Reference Court to receive the enhanced compensation, to get it re-determined under section 28-A of the Act.

3.2 By order dated 20.7.2020, the application of the petitioner No.1 Pirbhai Mohammadbhai Momin came to be rejected whereas by order dated 21.9.2020 the application of petitioner No.2 Abdul Hasanbhai Momin met with similar fate. In both the orders, common ground weighed with the Special Land Acquisition Officer to reject the prayer for re-determination of compensation was that the petitioners had sold away the land to other persons. It was recorded that petitioner No.1 had sold his land to one Nileshbhai Vinubhai on 26.6.2013 and since petitioner No.1 was no more the owner now, his application under section

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28-A of the Act was not liable to be granted. In the same way, in case of petitioner No.2 the reason advanced by the competent authority for rejecting the prayer under section 28-A of the Act was that he sold his land on 27.10.2016 to one Habibbhai Momin and others.

3.3 It was reasoned by the authority in both the cases that since the applicants were not the owners of the land at the time of making of application under section 28-A of the Act, their request for re- determination of compensation was not liable to be acceded to.

4. The petitioners submitted in their petition to answer and meet with the ground mentioned by the Special Land Acquisition Officer for rejecting the application that the petitioner no.1 sold the land by registered sale deed dated 26.6.2013 and the petitioner No.2 sold his land on 27.10.2016. It was submitted that transferee of petitioner No.2 had filed affidavit giving consent to pass the award under section 28-A in favour of the original land owner. Be as it may.

4.1 On the other hand, learned Assistant Government Pleader supported the order and the grounds of rejections.

5. Noticing the undisputed facts from the record of the petition, the Special Land Acquisition Officer declared his award under section 11 of the Act on 21.6.2010. The land owners other than the petitioners whose lands were acquired alongwith the petitioners' land raised Reference case No. 267 of 2012 before the Reference Court which was decided on 8.7.2017 and the amount of compensation was enhanced. The petitioners made application under section 28-A on 29.8.2017.

5.1 The respondent Special Land Acquisition Officer could not have rejected the application of the petitioners under section 28-A of the Act

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on the ground that the lands were sold by them. The sale deeds were dated 26.6.2013 and 27.10.2016 respectively which were subsequent to the passing of the award under section 11 of the Act. In any case they were post-section 4 notification sale. At that point of time, when the lands were acquired and the award was passed, the petitioners were the owners of the land. Their names stood in the award declared by the Special Land Acquisition Officer. The petitioners therefore were entitled to derive the benefit of enhanced compensation pursuant to the judgment and award passed by the Reference Court at the instance of the land owners belonging to the same class.

5.2 Merely because the petitioners had subsequently parted with their lands was not a valid ground for the Special Land Acquisition Officer to reject the application under section 28-A of the Act. The petitioners were 'persons aggrieved' within the meaning of such phrase occurring in section 28-A of the Act to be entitled to seek benefit of higher compensation to be redetermined on the lines of award passed by the reference court. The authority ought to have re-determined the amount of compensation on the lines and on the basis of the judgment and award of the Reference court delivered in case of similarly situated land owners.

6. As a result of the above discussion, the impugned orders dated 20.7.2020 and 21.9.2020 passed by the Deputy Collector and Special Land Acquisition Officer, Narmada Yojana, Ahmedabad rejecting the applications of the petitioners under section 28-A of the Act are hereby set aside. The said authority is directed to decide the applications of the petitioners afresh in accordance with law re-determining the compensation, to complete such exercise within a period of six weeks from the date of receipt of copy of the present order. It is further directed that the benefits for which the petitioners may become entitled to, shall be thereafter paid to the petitioners within four weeks from the date of such

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decision.

7. The petition stands allowed in terms of the aforesaid directions. Rule is made absolute accordingly.

(N.V.ANJARIA, J)

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