Champaben Arjanbhai vs Deputy Collector
2022 Latest Caselaw 4217 Guj

      C/SCA/4441/2022                                    ORDER DATED: 19/04/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4441 of 2022
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                        CHAMPABEN ARJANBHAI & 2 other(s)
                                   Versus
                         DEPUTY COLLECTOR & 1 other(s)
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Appearance:
MR NITIN M AMIN(126) for the Petitioner(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                  Date : 19/04/2022

                                   ORAL ORDER

1. By way of this petition the petitioners have prayed for quashing and setting aside the order dated 04.09.2019 passed in Civil Miscellaneous Application No.16 of 2019 at Exh.3 of Land Reference Case No.63 of 2009 passed by the learned Principal Senior Civil Judge, Botad and further prayed for direction to the Executive Engineer, Bhavnagar Irrigation Project to recalculate and deposit the compensation amount at Rs.68.60 per sq mtr as per judgment and award of the Reference Court dtd.13.12.2013 passed in Land Reference Case Nos.58 to 63 of 2009 below Exh.53.

2. Heard learned advocate Mr.Nitin Amin for the petitioners and learned Assistant Government Pleader Mr.Nikunj Kanara for the respondent - State.

3. Before hearing could be commenced, learned Advocate Mr.Nitin Amin has placed on record an additional affidavit of the petitioners affirmed by one

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Raghavbhai Arjanbhai at Botad on 01.04.2022 whereby he has stated that acquired land was irrigated land and by way of that affidavit, certain documentary evidence in the form of Village Form No.16 as well as statutory notice was issued by Respondent No.1 under Section 12(2) of the Land Acquisition Act, 1894 are placed on record.

4.1 It is the case of the petitioner that the petitioners were the owner of the land bearing Survey No.157/1-2 admeasuring 71,731 sq mtr of land at Village :Gunda, Tal.Ranpur, Dist.Ahmedabad, which was acquired by the respondents. The Respondent No.1 commenced land acquisition proceedings in respect of the aforesaid land owned by the petitioner and in Land Acquisition Case No.16 of 1997 and award under Section 11 of the Act was passed on 04.15.2002 whereby compensation at the rate of Rs.3 per sq mtr was directed to be paid to the persons for acquisition of their non-irrigated land (Jirayat land) and at the rate of Rs.4 per sq mtr for irrigated land (Bagayat land).

4.2 As per the case of the petitioner they were paid compensation at the rate of Rs.4/- per sq mtr by Respondent No.1.

4.3 As the petitioner found that the amount awarded towards compensation by the Land Acquisition Officer was inadequate, a Reference under Section 18 was preferred and a compensation @ of Rs.100 to 110 per sq

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mtr was claimed to be paid. The petitioner's Land Reference Case No.63 of 2009 was registered before the District Court at Ahmedabad (Rural) and the learned Principal Senior Civil Judge, Ahmedabad (Rural) by his judgment and award dated 13.12.2013 was pleased to award additional compensation per sq mtr at the rate of Rs.68.60 for irrigated land and Rs.45.75 per sq mtr for non-irrigated land in the judgment in a group of land Reference Case being LRC No.58 of 2009 to 63 of 2009.

4.4 Though the land of the petitioner which was acquired was an irrigated land, in a table whereby total amount payable to the claimant was determined against the case of the petitioner which was LRC No.63 of 2009, additional price per sq mtr was stated as Rs.45.75 and it was stated that the petitioner is entitled to amount of Rs.53,53,098.03 paisa.

4.5 Since the petitioner's land was irrigated land, it is the case of the petitioner that he is entitled to get additional compensation at the rate of Rs.68.60 per sq mtr and not at the rate of Rs.45.75 pr sq mtr.

4.6 To get the aforesaid mistake rectified, the petitioner preferred Civil Miscellaneous Application No.1 of 2017 on 04.01.2017 before the Civil Court at Ahmedabad (Rural). In the meantime, on the ground of bifurcation of judicial districts, Review Application preferred by the petitioner was transferred to Civil Court at Botad and was re-

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registered as Civil Miscellaneous Application No.11 of 2019. The Court vide order dated 06.08.2019 condoned the delay in filing the Review Application and once again it was renumbered as Civil Miscellaneous Application No.16 of 2019 on 06.08.2019. However, learned Principal Senior Civil Judge, Botad vide order dated 04.09.2019 rejected the Review Application preferred by the petitioner and one of the grounds of rejection the application was that the petitioner did not produce any documentary evidence which would show that disputed land was irrigated land.

4.7 As the learned Principal Senior Civil Judge, Botad vide order dated 04.09.2019 rejected the Review Application preferred by the petitioner, the petitioner has preferred present petition with the prayer to quash and set aside the order dated 04.09.2019 and to direct the authority to recalculate the compensation at the rate of Rs.68.60 per sq mtr as additional compensation.

5. Today by way of additional affidavit, learned advocate Mr.Amin has placed on record the photocopy of the notice under Section 12(2) of the Land Acquisition Act, 1894 given to Arjan Jayram in respect of land bearing Revenue Survey No.157/1-2. The aforesaid photocopy shows that the land which was acquired was Bagayat land (irrigated land). Along with affidavit village form no.16 in respect of survey nos.157/1, 157/2 and 157/3 are also produced. The Form No.16 is in respect of mode of

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irrigation. As far as survey no.157/1 is concerned, it is stated that survey no.157/1 is having a well possessed by Raghav Arjan, the same is the case in land bearing survey no.157/2 as well owned by Raghav Arjan. The ownership of the Well as per Village Form No.16 is private ownership which would indicate that the land was being irrigated with the water from the Well and, therefore, it is irrigated land.

6. Today the petitioner produced the above referred documentary evidence along with the additional affidavit. Copy of the additional affidavit is served upon learned Assistant Government Pleader and even to the officer from Respondent No.1 viz. Mr.U.D.Hadavani, Deputy Executive Engineer, Irrigation Sub Division, Barwala, who is present in the Court. On verification of the record, he could not dispute aforesaid record however he produced photocopy of 7/12 abstracts in respect of land bearing survey nos.157/1 and 157/2 occupied by Arjan Jairam wherein the nature of the land is stated to be Jirayat land. The aforesaid photocopy of the 7/12 abstracts of land bearing survey nos.157/1 and 157/2 is taken on record.

7. In view of above learned Assistant Government Pleader Mr.Kanara states that in view of contradictory facts indicating two different kinds of land, the interest of justice would be served if the impugned order is quashed and set aside and the matter is remanded back to the

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learned Civil Judge for considering it afresh.

8. Considering the rival submissions and considering the fact that learned Principal Senior Civil Judge, Botal while rejecting the revision application preferred by petitioner, apart from the ground of delay, one of the grounds considered was that review application was not accompanied by any documentary evidence.

9. In view of the fact that there is discrepancy in respect of nature of land whether it is an irrigated land or non-irrigated land, as two different revenue record the Government shows two different nature of the land whereas none of these documents were ever produced before the Court of learned Principal Senior Civil Judge in Civil Miscellaneous Application No.16 of 2019. Therefore, the interest of justice would be served if the order dated 04.09.2019 is hereby quashed and set aside and the matter is remanded back to learned Principal Senior Civil Judge, Botad for considering the review application afresh by permitting the petitioner as well as the respondents to place on record the documents they are relying upon to determine nature of land and accordingly to determine the entitlement of the petitioner regarding the amount of compensation in respect of irrigated land or non-irrigated land.

9.1 In view of the above, the order dated 04.09.2019 passed by the learned Principal Senior Civil Judge, Botad

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in Civil Miscellaneous Application No.16 of 2019 in Land Reference Case No.63 of 2009 below Exh.3 is hereby quashed and set aside and the matter is remanded back to learned Principal Senior Civil Judge, Botad for considering the review application preferred by the petitioner afresh;

9.2 The petitioner as well as respondents are permitted to place on record relevant documentary evidence that they are relying upon in respect of their claim;

9.3 Rights and contentions of all the parties are kept open;

9.4 Learned Principal Senior Civil Judge, Botad is hereby directed to hear and decide the Civil Miscellaneous Application No.16 of 2019 preferably within a period of one year from today latest by 31.03.2023;

9.5 It is clarified that this Court has not gone into merits of the matter and learned Principal Senior Civil Judge, Botad shall decide review application preferred by the petitioner independently on the basis of documentary evidence that the party may produce before it.

10. With the above observations and directions, present petition is disposed of. Notice is discharged. No order as to costs. Direct service is permitted.

(NIRZAR S. DESAI,J) MISHRA AMIT V.