Ishwarbhai Motibhai Rathod vs Competent Authority, National ...
2021 Latest Caselaw 17085 Guj

      C/SCA/16505/2021                          ORDER DATED: 29/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16505 of 2021

===============================================================
              ISHWARBHAI MOTIBHAI RATHOD
                          Versus
COMPETENT AUTHORITY, NATIONAL HIGHWAY AUTHORITY OF INDIA
          AND SPECIAL LAND ACQUISITION OFFICER
===============================================================
Appearance:
MR SHALIN MEHTA, SR. ADVOCATE
with MS ADITI S RAOL(8128) for the Petitioner(s) No. 1
MR MAULIK NANAVATI, ADVOCATE for the Respondents No. 1 & 2
MR DEVANG VYAS, ASST. SOLICITOR GENERAL for the Respondent No.3
MR THIRTHRAJ PANDYA, AGP for the Respondent(s) No. 4
===============================================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
           KUMAR
           and
           HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                            Date : 29/10/2021

                            ORAL ORDER

(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)

1. We have heard Mr. Shalin Mehta, learned senior counsel

with Ms. Aditi Raol, learned advocate for the Petitioner, Mr.

Maulik Nanavati, learned counsel for Respondent Nos. 1 and 2

(National Highway Authority of India), Mr. Thirthraj Pandya,

learned Assistant Government Pleader for Respondent No.3 and

Mr. Devang Vyas, learned Assistant Solicitor General for

Respondent No.4.

C/SCA/16505/2021 ORDER DATED: 29/10/2021

2. By this Petition under Article 226 of the Constitution of

India, the Petitioner has prayed for the following reliefs:

"(A) Your Lordships may be pleased to issue

a writ of mandamus or a writ in the nature of

mandamus or any other writ, order or

direction and thereby be pleased to direct the

respondent No.1 to amend/modify/revise the

award dated 05-09-2017 bearing no.LAQ.

Vadodara-Mumbai Express Way/ Dodka

Compensation Case NO.07/2013 and re-compute

the compensation qua the lands of the

petitioner by multiplying the market value as

determined under Section 26(1) of the LARR,

2013 Act with a Factor of 2 (two) and applying

all other statutory benefits as provided under

the LARR Act, 2013 including solatium under

Section 30(1), interest under Section 30(3) and

be further pleased to direct the respondents to

pay the same, with interest from 05.09.2017 @

C/SCA/16505/2021 ORDER DATED: 29/10/2021

9% for the first year and 15% per annum for

subsequent years till date of realisation within

6 weeks of the Judgement;

(B) Pending admission, hearing and final

disposal of the petition, your Lordships may be

pleased to restrain the respondents from using,

altering, making any construction of any kind

on the land of the petitioner;

             (C)         Any other and further releases may be

             deemed just and proper in the facts and

             circumstances        of   the     case    may        please       be

             granted."

3. It is the contention of Learned Senior Counsel appearing

for the Petitioner that the Petitioner is an agriculturist and is

holding total agricultural land admeasuring 8600

Ha.Ra.Sq.Mtrs, bearing Block NO.641, Survey No.376 within

the ceiling limit prescribed in village Sherkhi, Taluka:

C/SCA/16505/2021 ORDER DATED: 29/10/2021

Vadodara (Rural) District:Vadodara and is tilling the said land.

The land is situated within revenue and panchayat limits of

the village Sherkhi Gram Panchayat. The land do not fall

within the limits of any 'transitional area, smaller urban area

or larger urban area' as defined and specified under Article

243Q (2) and is not part of any area falling within the limits

of any Urban Local body or Municipality or Municipal

Corporation.

It is further contended that the competent authority

passed an award dated 05-09-2017 bearing No.LAQ/Vadodara-

Mumbai Express Way/Dodka Compensation Case No.07/2013.

As per Section 26(1) of the Act from the Survey Nos. 205, 305,

306 of the petitioner's land, 2466, 5160, 2541 Sq.Mtrs

respectively lands were acquired and the market value of the

acquired lands were arrived at INR 63,70,213/-,

1,36,78,810/-, 65,88,405/- respectively. Though the acquired

land is situated in rural area, Respondent No.2 applied factor 1

and not factor 2.

C/SCA/16505/2021 ORDER DATED: 29/10/2021

4. At this juncture, learned counsels appearing for the

respective parties submitted that the issue involved in this

petition is identical to the issue decided by the Coordinate

Bench of this Court in case of Shah Rajesh Manibhai vs.

National Highway Authority of India rendered in Special Civil

Application No.5913 of 2021 dated 23.04.2021. The said order

is further based upon a Division Bench judgment of this Court

dated 12.09.2019 passed in a group of petitions led by Special

Civil Application No. 8734 of 2019, which has since been

affirmed by the Supreme Court as the Special Leave Petition

filed by the State Government has been dismissed on

07.01.2021 in Special Leave Petition (Civil) Diary No. being

18777 of 2020. It is also submitted that the issue in the

present case is identical to the case of Dilipbhai Ganpatbhai

Parmar vs. Competent Authority rendered in Special Civil

Application No.12140 of 2021 dated 27.08.2021. It was,

therefore, submitted that this Petition may also be disposed of,

following the order passed in Special Civil Application No.5913

of 2021 dated 23.04.2021.

C/SCA/16505/2021 ORDER DATED: 29/10/2021

5. Learned counsel for Respondent No.1 - NHAI, further

submitted that as in the other cases if it is found that the

Petitioner is entitled to Factor-"2" being applied for

determination of compensation and other benefits, Respondent

No.1 - Authority shall make deposit within 21 days of such

determination.

6. Thus, following the decision of the Coordinate Bench

rendered in Special Civil Application No.5913 of 2021 dated

23.04.2021, the present Petition is disposed of with the same

directions and terms as contained in the order dated

23.04.2021 passed in Special Civil Application No.5913 of

2021.

7. However, it is clarified that if the Petitioner has moved

for re-determination of compensation before the Arbitrator

under Section 3G (5) of the National Highways Act, 1956, the

Petitioner may not insist for Factor-"2" claim or in the

alternative the respondents may be permitted to appraise the

Arbitrator of the said issue, so that there is no further

C/SCA/16505/2021 ORDER DATED: 29/10/2021

multiplicity or complications in the proceedings.

8. The present Petition, therefore, stands disposed of

accordingly. There shall be no order as to costs.

(ARAVIND KUMAR,CJ)

(MAUNA M. BHATT,J) NAIR SMITA V.