Bhojabhai Rasangbhai vs Special Land Acquisition Of ...
2022 Latest Caselaw 4100 Guj

    C/SCA/6286/2022                            ORDER DATED: 12/04/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 6286 of 2022

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                  BHOJABHAI RASANGBHAI
                           Versus
 SPECIAL LAND ACQUISITION OF OFFICER AND DEPUTY COLLECTOR
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Appearance:
MR RAKESH R PATEL(3239) for the Petitioner(s) No. 1
MR. NIKUNJ KANARA, AGP for the Respondent(s) No. 1
MR. ANKIT SHAH, CENTRAL GOVERNMENT COUNSEL for the
Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                          Date : 12/04/2022

                           ORAL ORDER

1. Heard learned advocate Mr. Rakesh R. Patel for the petitioner and learned AGP Mr. Nikunj Kanara for the respondent - State.

2. By way of this petition, the petitioner has prayed for the writ of certiorari or any other appropriate writ or directions and prayed for quashing and setting aside the judgment and order dated 29.01.2019 passed by the learned Reference Court (Principal Senior Civil Judge, Bhachau- Kutch) in Land Acquisition Reference No. 21 of 2017 and further prayed for quashing and setting aside the final order dated 29.03.2019 passed by the learned Reference Court (Principal Senior Civil Judge, Bhachau, Kutch) in Land Acquisition Reference No. 21 of 2017.

3. The brief facts giving rise to the present petition are stated as under:-

C/SCA/6286/2022 ORDER DATED: 12/04/2022

It is the case of the petitioner that the petitioner is the original land owner of the land situated at Village: Dholavira, Taluka:- Bhachau, District:- Kutch. The land of the petitioner was acquired by the Archaeological Survey of India - respondent no. 2 herein and an award dated 28.09.2005 was passed under section 11 of the Land Acquisition Act, 1894. Pursuant to the aforesaid award, the Special Land Acquisition Officer determined the amount of compensation at the rate of Rs. 0-64 paisa per sq. mtrs.

The petitioner preferred a Reference Application under section 18 of the Land Acquisition Act for enhancement of compensation and prayed for enhancing the amount to Rs. 200 per sq. mtrs. The Reference Application of the petitioner was numbered in the year 2006 and thereafter, it was renumbered in the year 2017 and was placed before the Principal Senior Civil Judge, Bhachau. Though the original Reference Application was preferred in the year 2006, in the year 2017 on 21.06.2017, the Superintending Archaeologist, Archaeological Survey of India who is respondent no. 2 in this petition in a capacity as an acquiring body filed an application Exh. 70 and prayed that the petitioner claimant may be directed to pay the Court fees as per the clause 15 of Schedule 1 of the Gujarat Court Fees Act, 2004, as at the time of filing reference application, the petitioner did not pay any Court fees but the petitioner had filed only an undertaking that as and when the Reference Application is decided, the Court fees will be paid by the petitioner.

The aforesaid application preferred below Exh. 70 by the respondent no. 2 was partly allowed by the learned Principal

C/SCA/6286/2022 ORDER DATED: 12/04/2022

Senior Civil Judge, Bhachau vide order dated 29.01.2019 directed the petitioner to pay 10% of the differential amount of the court fees as per the Schedule 1 of the Court Fees Act, 2004, amended Article 15. The petitioner, however, did not pay the aforesaid amount as directed by the learned Principal Senior Civil Judge, Bhachau, vide order dated 29.01.2019, though the petitioner was directed to comply with the order dated 29.01.2019 within a period of 30 days and since, the petitioner did not pay the aforesaid amount, ultimately, the reference application of the petitioner was heard and vide final order dated 29.03.2019, as the petitioner did not pay 10% of the court fees on differential amount of his claim, the reference application of the petitioner was rejected vide order dated 29.03.2019 by the learned Reference Court (Principal Senior Civil Judge, Bhachau).

4. Hence, being aggrieved and dissatisfied with the aforesaid two orders dated 29.01.2019 passed by the learned Reference Court (Principal Senior Civil Judge, Bhachau) in Land Acquisition Reference No. 21 of 2017 and 29.03.2019 passed by the learned Reference Court (Principal Senior Civil Judge, Bhachau) in Land Acquisition Reference No. 21 of 2017, the petitioner has preferred this petition.

5. Learned advocate Mr. Rakesh Patel for the petitioner at the outset submitted that now the petitioner is ready and willing to reduce the claim and also ready and willing to pay the court fees as prescribed under the Act. In fact the petitioner has also filed an affidavit to that effect which is taken on record.

6. Learned advocate Mr. Rakesh Patel for the petitioner submitted that since, the reference application preferred by the

C/SCA/6286/2022 ORDER DATED: 12/04/2022

petitioner is rejected only on the ground of non payment of the court fees, considering the fact that the petitioner is ready to reduce his claim and also considering the fact that he is also ready and willing to pay the court fees prescribed under the Act on the reduced claim, both the orders dated 29.01.2019 passed below Exh. 70 as well as order dated 29.03.2019 below Exh. 1 may be quashed and set aside and the matter may be remanded back for fresh consideration to the Reference Court.

7. He further submitted that the petitioner would make appropriate application restricting his claim by reducing it and the Trial Court may be directed to consider the same, considering the fact that the provision of compensation in Land Acquisition Act is made for land-loser and to protect the interest of land-loser. The petitioner without knowing his responsibility about the payment of court fees made exaggerated claim and thereafter, realized that they are not in a position to pay the court fees on the basis of claim on higher side and therefore, once they have realized their mistake , they may be permitted to restrict their claim by reducing the claim for compensation per sq. mtrs. and the Reference Court may be directed to consider the same application and to pass appropriate order for payment of court fess on the reduced amount of claim.

8. Learned AGP Mr. Nikunj Kanara for the respondent - State vehemently opposed this petition and submitted that the petitioner preferred Reference Application in the year 2006 and did not pay the court fees till 2017. It is only 2017 upon an application made by the respondent no. 2, the Court directed to the petitioner to pay the court fees. Despite that order, since the court fees were not paid, the Court was constrained to pass

C/SCA/6286/2022 ORDER DATED: 12/04/2022

an order dated 29.03.2019 and therefore, in a petition wherein writ of certiorari is prayed for, it cannot be said that the Reference Court has committed an error by passing an order dated 29.03.2019 and prayed for dismissal of the present petition.

9. In view of the fact that learned advocate Mr. Ankit Shah who represented the Union of India is present in the Court. This Court requested the learned advocate Mr. Shah to appear in this matter on behalf of the respondent no. 2 - Archaeological Survey of India. Learned advocate Mr. Ankit Shah is permitted to file his Vakalatnama. Registry to accept the same.

10. Learned advocate Mr. Shah also vehemently opposed the petition and supported the stand taken by the Archaeological Survey of India - respondent no. 2 herein and prayed for dismissal of the present petition, as at no point of time, during the pendency of the reference application, the petitioner had shown any inclination to pay the court fees.

11. Considering the rival submissions as well as considering the fact that now by way of an affidavit, the petitioner has shown willingness to restrict the claim by reducing the amount of claim in the reference application and he is ready and willing to pay the court fees on the reduced claim, coupled with the fact that the petitioner is a land loser and the compensation awarded to the petitioner is as meager as 64 paisa per sq. mtrs., if the petitioner is permitted to reduce the amount of claim by permitting him to pay the court fees on the reduced amount of claim, interest of justice would be served.

12. Ofcourse, the Reference Court has not committed any

C/SCA/6286/2022 ORDER DATED: 12/04/2022

error by rejecting the claim of the petitioner but considering the changed circumstances that now the petitioner is ready and willing to pay the court fees by reducing his claim as well as considering the fact that if the permission as prayed for by the petitioner to permit him to reduce the amount of claim and to permit him to make payment of court fees on the reduced claim, if is not considered positively, that will frustrate the basic purpose behind the payment of compensation under the Land Acquisition Act and therefore, both the orders dated 29.01.2019 passed by the learned Reference Court (Principal Senior Civil Judge, Bhachau) in Land Acquisition Reference No. 21 of 2017 and 29.03.2019 passed by the learned Reference Court (Principal Senior Civil Judge, Bhachau) in Land Acquisition Reference No. 21 of 2017 and 29.03.2019 deserves to be quashed and set aside and the same are hereby quashed and set aside accordingly. The petitioner is directed to file an application restricting his claim by reducing the amount of claim per sq. mtrs within a period of one month from today and if that application is made, the same may be considered in accordance with law by the Reference Court. Once the application of the petitioner is decided within a period of one month thereafter, petitioner is directed to make payment of the court fees on the reduced amount of claim.

13. With the aforesaid directions, the present petition stands disposed of.

Direct service is permitted.

(NIRZAR S. DESAI,J) VARSHA DESAI