Gujarat High Court
Manharlal Somabhai Patel vs State Of Gujarat on 11 April, 2022
Bench: A.J.Desai
C/LPA/522/2022 ORDER DATED: 11/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 522 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 15753 of 2017
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 522 of 2022
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MANHARLAL SOMABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SR. COUNSEL with MR HASIT H JOSHI(2480) for the
Appellant(s) No. 1,2,3,4,5
for the Respondent(s) No. 2,3,4
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1
MR ANSHIN DESAI, SR. COUNSEL with MR SATYAM Y CHHAYA(3242) for
the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 11/04/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of present Appeal under clause 15 of the Letters
Patent, the appellants - original petitioners have challenged CAV
judgment dated 23.03.2022 passed by the learned Single Judge in
the captioned writ petition.
2. The short facts leading to filing of the present appeal
are as under :-
2.1 The appellants - original petitioners claim that they are
the legal heirs of the deceased Bai Reva, widow of deceased
Somabhai Patel. They also claim to be the tenants of several
agriculture lands including the property in question i. e. survey
No.54/2 paiki admeasuring 15176 sq. mtrs. situated at village
Kanbivaga, Taluka and District Bharuch.
C/LPA/522/2022 ORDER DATED: 11/04/2022
2.2 The State Authority intended to acquire the several
lands of the aforesaid village. The State Authority acquired the land
admeasuring 12112 sq. mtrs. of survey No.54/2 for construction of
new Civil Hospital by notification dated 08.12.1970. Thereafter,
another notification under Section 4 was issued for acquiring the
remaining land of survey No.54/2 admeasuring 3064 sq. mtrs.
Thereafter, Section 6 notification was issued by the authority on
19.09.1972 for the entire land i. e. 15176 sq.mtrs.
2.3 It is the case of the petitioners that thereafter, the
award was declared by the authority under Section 11 of the Land
Acquisition Act and as per the award, the property acquired was
shown as 3064 sq. mtrs. only.
2.4 Being dissatisfied with the compensation awarded by
the Deputy Collector, a reference was at the instance of Bai Reva
under Section 18 of the Land Acquisition Act before the competent
Civil Court. The amount was enhanced by the Civil Court in
Reference Case Nos. 53 of 1973 and 49 of 1973 and additional
compensation was awarded for 3064 sq. mtrs. by the judgment and
award dated 30.09.1974. It is also the case of the petitioners that
by the said award, no compensation was paid for the land
admeasuring 12112 sq. mtrs. However, when the the petitioners
came to know that for the remaining land belonging to the
petitioners, the State Authority are entering into some agreements
with the private respondents, they made representations in
February, 2017 and May 2017 to bring the same to the notice of
the concerned authority of the State, however no action was taken.
By the said representation, it was brought to the notice of the
authority that the land admeasuring 12112 sq. mtrs. is not acquired
and appropriate orders may be passed. Since there was no
response from the State Authority, a writ petition being Special
C/LPA/522/2022 ORDER DATED: 11/04/2022
Civil Application No. 12929 of 2017 was preferred which was
ultimately withdrawn with a liberty to file a fresh petition.
Accordingly, the captioned petition came to be preferred. It is also
the case that when the petitioners came to know that correcting
entries have been made, particularly entry No.972 dated
26.03.1985 by which some corrections were made in the entry, the
same was challenged by way of present petition.
2.5 It is the case that the notice was issued to the private
respondents by the learned Single Judge and affidavit-in-replies
were filed by the respondents. The learned Single Judge, after
considering the submissions made by the parties and perusing the
record, dismissed the petition. Hence, this Appeal.
3. Learned senior counsel Mr. Shalin Mehta assisted by
learned advocate Mr. Hasit Joshi for the appellants has requested
to make some amendments to the prayers and requested that the
authority may be directed to decide the representation with regard
to the compensation not paid to the appellants for the land
admeasuring 12112 sq. mtrs or to consider the case here before
this Court about non-payment of compensation which is prima facie
emerging from the record and from the affidavit filed by the State
Authority.
3.1 Apart from this aspect, by taking us to the schedule
annexed to the award which he could get under Right to
Information Act, he would submit that the amount of compensation
had been paid only for 3064 sq. mtrs. and not for the entire land
which is alleged to have been acquired by the State. By taking us to
the observations made in Land Reference No.53 of 1973 and 49 of
1973, he would submit that even the Reference Court has
subsequently observed that considering the measurement of the
C/LPA/522/2022 ORDER DATED: 11/04/2022
land which is acquired, the amount of compensation has been paid
to the present appellants for 3064 sq. mtrs. and not for entire land.
3.2 Learned senior counsel Mr. Mehta appearing for the
appellants has taken us through the impugned judgment and would
submit that the learned Single Judge has committed an error in
deciding the tenancy rights of the appellants which was not the
issue in question. He would submit that the trial court has also
committed an error in holding that the appellant - petitioner No.1
viz. Manharlal Somabhai Patel was aware about the proceedings
under the land reference case, however did not raise any objection
about non-payment of compensation at that time since it is the case
of the appellants petitioners that the land was never acquired and
therefore, there is no question for claiming any compensation for
the land which was never acquired. He would further submit that
the learned Single Judge has committed an error in rejecting the
petition only on the ground of delay and latches since the
appellants petitioners had lost the right of compensation and
ownership and therefore, the writ petition should have been
entertained by the learned Single Judge.
4. On the other hand, learned senior counsel Mr. Anshin
Desai assisted by learned advocate Mr. Satyam Chhaya for private
respondent No.5 and learned Assistant Government Pleader
Ms. Shruti Pathak have taken us to affidavit-in-reply dated
25.04.2019 filed by District Collector, Bharuch and would submit
that since the acquisition proceedings are of the year 1972, a copy
of the entire award is not available. She would submit that
corrected entries were made in the revenue record way-back in the
year 1985 in accordance with law and the entry in the name of
State of Gujarat was mutated for the entire land which was never
challenged by the petitioner for the long period and came to be
C/LPA/522/2022 ORDER DATED: 11/04/2022
challenged indirectly by way of present petition and subsequent
thereto, the proceedings filed with regard to the entry have been
dismissed by the Deputy Collector as well as the Collector in the
appeal on the ground of delay and latches.
5. Learned senior counsel Mr. Anshin Desai has taken us
to the prayer clause of the petition and would submit that
subsequently, the proceedings came be to filed and the same have
been decided and that if any grievance with regard to entry
remains, the same can be challenged in accordance with law. He
would submit that even Regular Civil Suit No.134 of 2018 has been
filed by the present appellants before the learned Judge, Bharuch
with similar types of prayers and have also challenged the
agreement entered into between the State of Gujarat and the
private respondents on the ground of claiming ownership of the
disputed property. He therefore requests this Court to exercise the
power under Articles 226 and 227 of the Constitution of India. He
would therefore submit that this aspect has been considered by the
learned Single Judge and therefore, the Letters Patent Appeal be
dismissed.
5.1 Learned senior counsel Mr. Desai would further submit
that the appellants petitioners indirectly want that they should be
declared as owner of the land in question though they have lost
their title way back in the year 1985 when the entries were
mutated in the revenue record.
5.2 In reply to the submission made by learned senior
counsel Mr. Desai for the respondent, learned senior counsel
Mr. Mehta would submit that when the petition was filed in the
year 2017, no proceedings were initiated under the revenue laws
by the original petitioners and therefore, it cannot be said that
C/LPA/522/2022 ORDER DATED: 11/04/2022
there was suppression of facts.
6. We have heard learned advocates appearing for the
respective parties. The prayers made in the petition read as
under :-
"(A) Your Lordships may be pleased to
admit and allow this petition;
(B) Your Lordships may be pleased to
issue a writ of mandamus or a writ of
certiorari or writ in the nature of certiorari or
any other appropriate writ, order or direction
may kindly be declare that land bearing
survey No.54/2 admeasuring 1-21-12 is not
under the acquisition and be pleased to
issued direction to the respondents to rectify
the record entry No.972 dated 26.03.1985
and be pleased to direct the respondents to
restore the name of the petitioners;
(C) During the admission, hearing
and final disposal of the petition Your
Lordships may kindly be pleased to direct the
respondents their servants and agents to
restrain the taking the possession of the land
bearing survey No.54/2 admeasuring 1-21-12
and maintain status qua in respect of the said
land in the interest of justice;
(D) Any other and further reliefs as
deemed just and proper looking to the facts of
this case, may kindly be granted in favor of
the petitioners, in the interest of justice;"
7. What the petitioners challenge is with regard to entry
No.972 which was mutated way back in 1985 in the name of the
State Authority is sought to be deleted and the name of the
petitioners is sought to be restored. It is undisputed fact that the
entries were mutated way back in the year 1985, but the
petitioners have not produced any revenue record with regard to
C/LPA/522/2022 ORDER DATED: 11/04/2022
showing the possession of the property in question, the land being
cultivated by them or any receipt with regard to revenue fees paid
by them for the land in question. Apart from this factual aspect,
subsequent to filing of the petition, they have preferred the
proceedings under the Bombay Land Revenue Code which have
been dismissed by the authority below. However, it is stated that
further order can be passed subject to the captioned petition. It is
also pertinent to note that the order passed by the District
Collector has not been challenged by the present appellants before
the Revisional Authority. We have also gone through the prayers
made in the suit by the appellants who are claiming ownership of
the property pursuant to the entry made in the year 1985. We have
also gone through the judgment of the learned Single Judge. We
are in complete agreement with the observations made by the
learned Single Judge about the scope of entertaining a writ petition
under Articles 226 & 227 of the Constitution of India deciding
directly entry proceeding and ownership of the property. Apart
from the above facts, we would not like to accept the request on
behalf of the appellants for amending the prayer clause since
accepting or considering the prayer of getting compensation would
amount to deciding the ownership of the appellants petitioners in
the proceedings before this Court and particularly when the
petitioners appellants have already undertaken the exercise
available under the revenue law, the request is rejected. The
judgment relied upon is not applicable to the facts and
circumstances of the present case.
8. Hence, the Appeal is dismissed. Consequently, the Civil
Application for stay would not survive and it also stands disposed
of.
C/LPA/522/2022 ORDER DATED: 11/04/2022
9. Request to continue the stay granted by learned Single
Judge is refused.
(A.J.DESAI, J)
(ANIRUDDHA P. MAYEE, J.)
cmk
