Bhailalbhai Somabhai Patel vs State Of Gujarat
2021 Latest Caselaw 4593 Guj

         C/SCA/13386/2020                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13386 of 2020


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                  NO
      see the judgment ?

2     To be referred to the Reporter or not ?                              NO

3     Whether their Lordships wish to see the fair copy of the             NO
      judgment ?

4     Whether this case involves a substantial question of law             NO
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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                            BHAILALBHAI SOMABHAI PATEL
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1,2,3,4,5,5.1,5.2,6
MS RUMI M GANDHI(3472) for the Petitioner(s) No. 1,2,3,4,5,5.1,5.2,6
MS.DIVYANGNA JHALA, AGP (99) for the Respondent(s) No. 1
MR PUNIT B JUNEJA(3972) for the Respondent(s) No. 2,3,4,5,6
NOTICE SERVED(4) 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 : 23/03/2021

                                 ORAL JUDGMENT

C/SCA/13386/2020 JUDGMENT

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

Heard learned advocate Mr.Chinmay Gandhi for the petitioner and learned Assistant Government Pleader Ms.Divyangna Jhala for the respondent State and its authorities.

2. The petitioner herein has prayed to set aside the order dated 9.7.2020 passed by the Deputy Collector and Special Land Acquisition Officer, Narmada Yojna, Ahmedabad, whereby the said authorities have rejected the application of the petitioner filed under Section 28A of the Land Acquisition Act, 1894, for redetermination of the compensation.

3. The case of the petitioner is that land admeasuring 1888 sq.mtrs out of survey No.507 situated at Village Telav, Taluka Sanand, District Ahmedabad, came to be acquired for construction of Telav Minor Distributory­ 2, Narmada Yojna, Ahmedabad. Notifications under Section 4 and thereafter under 6 came to be issued under the Land Acquisition Act, 1984, whereafter the Land Acquisition Officer passed award on 20.6.2010 under Section 11 of the Act in Acquisition Case No.57 of 2007.

3.1 The other persons whose lands were also acquired under the same Notification made Reference under Section 18 before the District Court. The said Reference Case No.1 of 2018 came to be decided and the Reference Court passed judgment and award dated 8.12.2018 enhancing the compensation by Rs.209.77/­ per sq.mtrs together with the solatium and other statutory benefits.

C/SCA/13386/2020 JUDGMENT

3.2 Seeking the benefits of enhanced compensation as awarded by the Reference Court, the petitioner made application under Section 28A of the Act which came to be rejected by the Deputy Collector and Special Land Acquisition Officer, Narmada Yojna, Ahmedabad, respondent No.1 herein. When the said impugned order is seen, it is reasoned by the authority that the petitioner had sold away the land as reflected in the mutation entries dated 4.11.2010, 8.3.2011 and 15.12.2011 in favour of one Jasvantbhai Somabhai Patel and others. It was thereafter stated so as to not to grant the application of the petitioner that the petitioner did not have any right in the land at that time when he petitioner made his application under Section 28A of the Act.

4. Learned advocate for the petitioner contended that the authority could not have taken note of subsequent transfer as the name of the petitioner was there as owner of the land when award was declared. It was submitted that the petitioner was entitled to file application under Section 28A of the Act and get the enhanced compensation redetermined. It was submitted that the only remaining land would not have been sold other than which was acquired. It was submitted that for all those reasons rejection of the application of the petitioner under Section 28A was illegal.

4.1 On the other hand learned Assistant Government Pleader supported the order to submit that since the names of family members were entered in respect of the land, the petitioner ceased to be interested person.

C/SCA/13386/2020 JUDGMENT

5. Section 28A of the Land Acquisition Act, 1894 provides for redetermination of the amount of compensation on the basis of the award of the Court. It says that whether the award is passed by the Court paying the amount of compensation in excess than the amount awarded by the Collector under Section 11 the persons interested in all other land covered under the same notification would be entitled to get the compensation for them redetermined on the lines of the award of the Court at the enhanced rate. Since the petitioner was entitled to seek the benefit of said provision to get the enhanced compensation, he made his application which however came to be rejected by the Special Land Acquisition Officer on the above ground.

5.1 Undisputedly, the petitioner was the owner and his name stood in the records when Notification under Section 4 was issued and when the award was passed by Land Acquisition Officer on 20.6.2010 under Section 11 of the Act. The enhanced compensation awarded by the Reference Court as per award would relate back to the date of award passed by the Land Acquisition Officer to entitle all those persons and land owners whose names figured in the award of the Land Acquisition Officer. The name of the petitioner was there in the village form and at the point of time when the award came to be passed by Land Acquisition Officer.

5.2 The petitioner is "person aggrieved" within the meaning of such phrase occurring in Section 28A of the Act and for the purpose of entitling the benefit of provision. The right to get the

C/SCA/13386/2020 JUDGMENT

additional compensation as per the award of the Reference Court passed in similar cases under the same Notification would accrue for the petitioner.

6. Resultantly, the impugned order dated 9.7.2020 passed by the Deputy Collector & Special Land Acquisition Officer, Narmada Yojna, Ahmedabad rejecting the application of the petitioner under Section 28A of the Act together with the grounds mentioned for such rejection, are hereby set aside.

6.1 The Deputy Collector & Special Land Acquisition Officer, Narmada Yojna, Ahmedabad, is directed to reconsider the application of the petitioner and pass fresh orders within six weeks from the date of receipt of the present order. The redetermined enhanced compensation as may be payable thereafter shall be paid to the petitioner within further period of four weeks from the date of such decision.

7. The present petition is allowed in terms and the directions as above. Direct service is permitted.

(N.V.ANJARIA, J)

(A. C. RAO, J) Manshi