Kalyansinh Mulsinh Champavat vs State Of Gujarat
2021 Latest Caselaw 4903 Guj

        C/SCA/2563/2018                                            ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          R/SPECIAL CIVIL APPLICATION NO. 2563 of 2018
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               KALYANSINH MULSINH CHAMPAVAT
                             Versus
                 STATE OF GUJARAT & 2 other(s)
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MS. DIVYANGNA JHALA, ASSISTANT GOVERNMENT PLEADER(1) 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 : 31/03/2021

                        ORAL ORDER

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

Heard learned advocate Mr. S. P. Majmudar for the applicant and learned Assistant Government Pleader Ms. Divyangna Jhala for the respondent state and its authorities.

2. What is prayed in the present writ petition is to hold that the acquisition proceedings for the land in question have lapsed in view of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It is further prayed to set aside all the consequential proceedings and transactions pursuant to the said acquisition. It is alternatively prayed to set aside the award dated 29.3.1996 declared under

C/SCA/2563/2018 ORDER

section 11 of the Land Acquisition Act, 1894 and thereby to quash the acquisition.

3. The land bearing Survey No. 30/1 at village Vavol, District Gandhinagar admeasuring 00-10-02 Hec.-Are-Sq.mtrs. belonging to original owner Modhuben d/o Sondhabhai Prajapati, came to be acquired for the purpose of expansion of Gandhinagar - the Capital City Yojna for which the necessary notifications under section 4 and section 6 were issued to culminate into the award dated 29.3.1996 under the Land Acquisition Case No. 7/91A.

3.1 As per the case of the petitioner, he purchased the said land by registered sale deed dated 8.10.2012. It appears that proceedings were attempted by the petitioner to get the land converted into Non-Agricultural to which the authorities responded to inform the petitioner by letter dated 13.11.2017 that the land in question was acquired under the aforesaid award.

3.2 The case is put forth by the petitioner who happens to be the post-acquisition purchaser of the land, that the petitioner has been in possession of the land throughout and that even the compensation for acquisition of land has not been paid. Based on such premise pleaded, the petitioner relied on section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,

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2013 to seek prayer that the acquisition has lapsed.

4. Respondent No.2-the Land Acquisition Officer, Gandhinagar, filed its affidavit-in-reply dated 25th September, 2019 refuting the case of the petitioner to contend that the petitioner is a subsequent purchaser of the subject matter land after the award was declared. It was contended that the petitioner being the third party, has no locus standi to challenge the acquisition. It was also contended that the petition is filed with dishonest intention to grab the valuable land which is now covered and part of Capital Yojana of Gandhinagar City. It was contended that the petitioner has misled the court in stating that the possession is with the petitioner.

4.1 Learned Assistant Government Pleader submitted that after the acquisition under the Act of 1894 was completed long back in the year 1996 when the award was declared under section 11 of the old Act of 1894 and the land of the original land owner was dealt with in accordance with law in terms of payment of compensation etc.. The petitioner-subsequent purchaser has filed the petition after gap of more than 24 years which is required to be dismissed, according to her, with heavy cost.

5. The facts emerged beyond the realm of dispute

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on the basis of the record of the petition are inter alia that the land bearing survey No. 30/I admeasuring total area 0-60-64 sq. mtrs. for which three separate land acquisition proceedings were undertaken. The land admeasuring Hec. 0-2- 30 and Hec. 0-01-84 came to be acquired under the Land Acquisition Case No. 35/I for which the award was declared on 28.10.1970 by the Special Land Acquisition Officer. Out of the same land, another parcel admeasuring Hec. 0-44-88 came to be subjected to acquisition under case No. 10/83 culminating into award dated 29.9.1986. Further portion of land admeasuring Hec. 0-10-02 was acquired as per award dated 29.3.1996 under the land Acquisition case No. 7/91. The petitioner has sought to raise controversy about the land admeasuring Hec. 0-10-02 covered under acquisition case No. 7/91. For that, the acquisition had been started and was completed with declaration of award in March, 1996, as stated above.

5.1 Following facts and aspects are further stated in the affidavit-in-reply by Special Land Acquisition Officer,

(i) Subsequent to passing of the aforesaid award in Land Acquisition Case No. 7/91, Notice under section 12/2 of the 1894 Act was issued and served on the original land owner namely Bai Laxmijoshi v/o Shivabhai Chaganbhai Sengbhai and Madhuben Sengabhai through Power of Attorney

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holder shri Shamalbhai Vitthalbhai Patel on 10.6.1996.

(ii) Despite attempts by the competent authority who wanted to hand over the amount of compensation for which notice dated 8.5.1996 and 12.3.1998 were issued, the original land holder did not turn up to collect the amount of compensation.

(iii) In view of the land owner not coming forth to collect the amount, as per the circular of the State Government compensation of Rs. 51,302/- was deposited as revenue deposit by cheque No. 0447000 dated 30.6.1998 with the Mamlatdar.

(iv) In fortification thereof, challan no. 9/98 dated 1.7.1988, aforementioned notices dated 8.5.1996 & 12.3.98 as well as copy of the Power of Attorney are produced on record by the deponent.

(v) A clear assertion is made in para-7b of the affidavit-in-reply that the possession of the land was also not handed over to the authorities. The land falls within the Capital City of Gandhinagar and is part of the Capital City Yojana.

5.2 In the aforesaid view, re-iterating the main aspects which would guide the controversy, the petition is filed by the subsequent purchaser

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after 24 years of acquisition which was for Capital Yojna of Gandhinagar City which has already come up. The possession is asserted by the authorities to be with them as the land fall within the Capital Yojna of Gandhinagar City. The details of offering of compensation and deposit thereof have been stated as noticed herein above.

6. In Indore Development Authority v. Manoharlal [(2020) 8 SCC 129] the Constitutional Bench of the Apex Court elaborately considered the interpretation and correct applicability of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and after detailed judgment, the final conclusion were drawn in para 366 of the decision.

6.1 What is observed in 366.3 is relevant, which is relevant for the purpose of controversy reproduced herein,

"366.3 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."

6.2 As held above, two conditions are required to be satisfied for resulting acquisition under the

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1894 Act to be lapsed. As held in para 366.3 above by the Supreme Court in Indore Development Authority (supra), deemed lapsing of the acquisition proceedings under Section 24(2) of the new Act shall take place where five years or more prior to the commencement of the said Act, the possession of the land has not been taken, nor the compensation is paid. There will be no lapse if possession is taken over though the compensation is not paid. In the same way, though the possession might not have been taken but if the compensation is paid, in such eventuality also, there will be no lapsing of the proceedings under Section 24(2) of the new Act.

6.3 The Supreme Court in Indore Development Authority (supra) also made following pertinent observations in respect of the operation of Section 24 of the new Act to state that the provision does not confer a new cause of action to challenge the acquisition proceedings or the methodology adopted for the deposit of compensation, could be held in question.

"Section 24 does not confer a new cause of action to challenge the acquisition proceedings or the methodology adopted for the deposit of compensation in the treasury instead of reference court, in that case, interest or higher compensation, as the case may be, can follow. In our considered opinion, Section 24 is applicable to pending proceeding not the concluded proceedings and the legality of the concluded proceedings, cannot be questioned. Such a challenge does not lie within the ambit of the deemed lapse under section 24. The lapse under section 24(2) is due to inaction or lethargy of authorities in taking requisite steps as provided therein. "

              C/SCA/2563/2018                                          ORDER




7       When         the        facts       of   the      present        case         is

considered, evaluated and applied in light of the law laid down in Indore Development Authority (supra), the acquisition proceedings would not lapse. The entire substratum of the contention in the petition therefore false flat. Neither the main prayer nor the alternative prayer could be granted.

8. Learned advocate for the petitioner prayed to grant amendment by which the petitioner wanted to implead the original owner as co-petitioner and further wanted to insert the contention on merits in respect of non-receipt of compensation etc..

8.1 Since we have dealt with the petition in view of the merits involved in the present petition standing against the petitioner, we see no purpose to deal with the amendment prayed for or grant the same. The said application is hereby dismissed.

9. The petition also stands dismissed as meritless. Notice is discharged.

(N.V.ANJARIA, J)

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