Rekhaben Shashikant Gade vs State Of Gujarat
2022 Latest Caselaw 6946 Guj

      C/SCA/1424/2022                                    ORDER DATED: 04/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 1424 of 2022

=============================================
                    REKHABEN SHASHIKANT GADE
                                  Versus
                    STATE OF GUJARAT & 4 other(s)
=============================================
Appearance:
MR SHASHIKANT S GADE(1706) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5
MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                              and
           HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 04/08/2022

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

1. By way of this petition under Article 226 of the Constitution

of India, petitioner has prayed for following reliefs:-

(a) Be pleased to admit & allow present writ petition;

(b) Be pleased to give mandatory direction to present respondents no.

1, 2 and 5to consider legal representations complains by present petitioner (Old member seller) in the interest of justice;

(c) Give mandatory direction to present respondents no. 1, 2 and 5 to give fair compensation @ Rs. 3,00000/- to present petitioner (Old member - seller) holding that she is legally entitled for fair compensation on cut-off date in notification under four corners of law;

(d) Your Lordships may pass an orders of (1) to take back Rs. 3,00000/-

(including Rs. 30,000/- kept reserved in said society) from New Owner Sachin Agrawal (present respo. No. 4-new member-

purchaser) and POA Ram Singh (present respo. No. 3) because sale deed of C-011 flat is dt. 7/7/2020 and (2) to pay Rs. 3,00000/- fair

C/SCA/1424/2022 ORDER DATED: 04/08/2022

compensation for C-011 flat to present petitioner because as on cut- off i.e. record date of initial notification her name was on record of said society to satisfy provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and provisions of Land Acquisitions Act;

(d) Pass any order that deem fit in the interest of justice.

2. Background of facts in which present petition is brought

before the Court is that petitioner (old member-seller) was

possessing C-011 Flat, Anand View Apartment, Near Shahibaug

Railway Crossing, Ahmedabad from 1990 till 7.7.2020. She used

to pay regular maintenance of flat, paid for installation of new lift

to the extent of contribution of Rs.25,000/-, painting of the

building at Rs.9,500/- and stayed there for 17 almost years and

tenants had stayed for 12 years (paying regular Rs.100/- extra in

addition to maintenance per month regularly. Said flat was sold

by petitioner to one Sachin Chunilal Agrawal- respondent No.4

who became new member- purchaser with a sale deed

videography through his Power of Attorney Ram Singh vide

document dated 7.7.2020.

3. It is the case of petitioner that portion of land of society

was acquired by Government for its Bullet Train project,

Ahmedabad to Mumbai and as such, in view of the provisions of

C/SCA/1424/2022 ORDER DATED: 04/08/2022

the Land Acquisition Act, petitioner being an old member and

owner at a relevant point of time, claimed is legally entitled to

fair compensation for her settlement and rehabilitation. It has

further been submitted that present possession of flat is with

Sachin Chunilal Agrawal (through Power of Attorney Ram Singh),

but his name was not found on cut-off date as occupier, hence

he was not entitled to receive any amount of compensation and

she is entitled to compensation under the provisions of the Act.

4. Petitioner is said to have submitted a representation on

5.7.2021 by attaching all necessary documents related to flat in

question, i.e. C-011. Said representation was also submitted to

the Chairman of the society and also representation is said to

have been submitted to the highest authority, i.e. Collector as

well as District Magistrate, complaining about fair compensation

not being paid to her vide communications dated 19.8.2021,

7.9.2021 and 21.9.2021. Having not received any response,

petitioner has approached this Court by way of this petition

under Article 226 of the Constitution of India for the reliefs as

stated herein-before.

C/SCA/1424/2022 ORDER DATED: 04/08/2022

5. The main contention raised by learned advocate Mr.

Shashikant Gade appearing for petitioner is that as on cut-off

date, petitioner was owner and occupier of flat in question and

as such, petitioner being owner at relevant point of time,

authorities are bound to pay fair compensation, as agreed in

favour of the petitioner. It has further been contended that

despite repeated representations having been made, neither the

authorities nor shop/ office bearers have paid any attention to

her representation, which has constrained the petitioner to

approach this Court. While agitating this, Mr. Gade has further

submitted that this is nothing but a serious dereliction of duty on

the part of respondent authorities and respondent authorities

were under obligation to consider and examine the fact that

though petitioner had stayed and possessed said flat right from

1990 till 7.7.2020 and had paid all charges and maintenance

regularly, this 17 years occupation and 12 years occupation as

tenant ought to have been examined as the petitioner is legally

entitled to secure the compensation.

6. Learned advocate Mr. Gade for petitioner has submitted

that despite aforesaid situation, Shri Ram Singh, power of

C/SCA/1424/2022 ORDER DATED: 04/08/2022

attorney holder of Sachin Chunilal Agrawal took a cheque, which

is on record. Though it was to be in the name of petitioner,

according to her, an error is committed by Chairman of the

Society to give said cheque to new member/ owner and paid the

same, who was otherwise not entitled to. This fact is though

evidently clear from record, neither of the authorities looked into

nor the Chairman corrected the same, which has resulted in

serious prejudice to the petitioner and as such, left with no

alternate, petitioner is constrained to approach this Court.

7. Learned advocate Mr. Gade, to strengthen his submission,

has made reference to a decision delivered by Hon'ble Court

delivered in S.L.P. (C) No.9036-9038 of 2016 decided on 6.3.2020

and by making reference to paragraph 4, has requested the

Court to extend the reliefs as prayed for in the petition. No other

submissions have been made.

8. Having heard learned advocate appearing for petitioner

and having gone through material on record, following

circumstances deserve consideration before arriving at the

ultimate conclusion:-

       C/SCA/1424/2022                                ORDER DATED: 04/08/2022




(1)    It appears from record of the case that petitioner had taken

'No Due Certificate' on 21.3.2020 from the society in which flat

No.C-11 is situated and later on, had sold the same to one Sachin

Chunilal Agrawal by a registered sale deed on 7.7.2020 and

possession of the flat thereof was also declined to the said

purchaser. Share Certificate and all rights related to said flat

have been transferred in favour of said purchaser namely, Mr.

Sachin Chunilal Agrawal and petitioner had received full

consideration of said flat.

(2) What is emerging from the document is that all rights,

interest, etc. have been transferred in favour of purchaser,

including common facilities related to said flats proportionately

and in turn, the Chairman has transferred legally the said flat on

account of registered sale deed to Sachin Chunilal Agrawal by

passing a specific resolution in the meeting of the Society dated

25.8.2020 and pursuant to the said resolution, Sachin Chunilal

Agrawal has entered as member of the society.

(3) It further appears that on account of acquisition

proceedings for Bullet train Project, society has been covered

C/SCA/1424/2022 ORDER DATED: 04/08/2022

under land acquisition and in response thereto, an amount of

Rs.3,65,56,738/- for 135 members of the society was entrusted

for its distribution to each member of the society and

accordingly, cheque qua this flat No.C-11 has been issued in

favour of Sachin Chunilal Agrawal since he happened to be on

the rolls of the society as owner of the flat and being member of

the Society. Accordingly, an amount of Rs.2,70,000/- through

cheque No.600204 dated 27.10.2020 has issued in his favour.

(4) It is no-doubt a settled position of law that once property

has been transferred through lawful document and registered

transaction, rights of seller gets extinguished by virtue of said

event. However, here, a contention is raised that amount ought

to have been paid to the petitioner which had been received by

the Society by way of compensation.

(5) Prima facie, grievance about entitlement of compensation

raised by the petitioner is a disputed question. Whether

petitioner is entitled to or not, can well be examined by an

appropriate forum meant for this very purpose under The Right

to Fair Compensation and Transparency in Land Acquisition,

C/SCA/1424/2022 ORDER DATED: 04/08/2022

Rehabilitation and Resettlement Act, 2013. In our considered

opinion, writ jurisdiction is not the proper forum. It would be

open for petitioner to ventilate her grievance before an

appropriate forum available.

(6) Act of 2013 has provided a specific redressal mechanism,

whereby if any dispute related to apportionment or entitlement

raised, authority under the Act is entitled to adjudicate and

redress the said grievance.

(7) Chapter-VIII of the Act has prescribed the establishment of

Land Acquisition Rehabilitation and Resettlement Authority and

said authority is couched with appropriate powers to examine

the issues which may arise in process of land acquisition and

related to compensation distribution.

(8) Section 6 of the Act has prescribed the powers of authority

and procedure before it, whereas Section 64 has provided a

reference to the authority. Chapter-IX of the Act provides

apportionment of compensation and Section 76 contained under

said Chapter deals with procedure when dispute as to

apportionment arise. Said statutory provisions are sufficiently

C/SCA/1424/2022 ORDER DATED: 04/08/2022

providing a mechanism for ventilating the grievance and as such,

petitioner is not remediless.

(9) When a Statute prescribes a mechanism for redressal of

grievance, same is to be availed of and it is settled position of

law that High Court cannot usurp the powers of the authority,

which is specifically created under the Statute to do a particular

thing and as such, we are of the considered opinion that instead

of opining on this grievance voiced out in the petition, we leave

it open to the petitioner to approach appropriate forum as may

be advised and permissible in law. Extraordinary jurisdiction of

the High Court cannot be converted into a fact finding and

adjudicating authority and as such, we are of the considered

opinion that present petition is not entertainable.

(10) At this stage, we may make a reference to the observations

made in one of the decisions delivered by Hon'ble Apex Court.

Following are the observations contained in paragraphs 41 and

43 of the said decision in the case of D.N. Jeevaraj Vs. Chief

Secretary, Government of Karnataka and others reported

in (2016)2 SCC 653:-

C/SCA/1424/2022 ORDER DATED: 04/08/2022

"41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease- cum-sale agreement or the provisions of law.[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be pre- empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.

43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to."

11. At this stage, learned advocate Mr. Gade has made an

attempt to strengthen his submission on the basis of the

judgment delivered by Hon'ble Apex Court in S.L.P. (C) No.9036-

9038 of 2016. On going through minutely the said factual details

C/SCA/1424/2022 ORDER DATED: 04/08/2022

of said decision we are of the opinion that same would not be of

any assistance to the petitioner and as such, without expressing

any opinion on merit of the grievance of petitioner, we leave it

open for the petitioner to adjudicate the same before appropriate

authority. Accordingly, petition is DISMISSED with no order as to

costs.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) OMKAR