Jilubhai Nankubhai Dhandhal vs State Of Gujarat
2022 Latest Caselaw 1843 Guj

     C/SCA/20184/2018                                    ORDER DATED: 16/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 20184 of 2018

                                 With
             R/SPECIAL CIVIL APPLICATION NO. 14481 of 2019
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                        JILUBHAI NANKUBHAI DHANDHAL
                                    Versus
                         STATE OF GUJARAT & 3 other(s)
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Appearance:
MR NIRAV C THAKKAR(2206) for the Petitioner(s) No. 1 in both petitions
MR DM DEVNANI, AGP for the Respondent(s) No. 1, 2 & 4 in both petitions
MR VIRAL J DAVE(5751) for the Respondent(s) No. 3 in both petitions
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 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                                Date : 16/02/2022

                              COMMON ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. Petitioners have sought for quashing of acquisition

proceedings pertaining to their land and of the land of persons

whose interest the petitioners are representing contending inter

alia that Land Acquisition Case No.3 of 2013 is in violation of the

provisions of the Land Acquisition Act, 1894 (hereinafter referred

to as "Old Act") as well as the provisions of The Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (hereinafter referred

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to as "LA Act, 2013") and in the alternative, they have sought

for the consent award drawn on 7.10.2013 being acted upon and

respondent Nos.2 to 4 being directed to pay all consequential

benefits to the petitioners pursuant to said consent award with

interest @ 18% per annum from the date of consent award dated

7.10.2013 till realization.

2. Facts in brief which have led to filing of these petitions can

be crystallized as under:

2.1 Petitioner in Special Civil Application No.20184 of 2018

claims to be owner of land bearing Survey No.12 admeasuring 2

Hectare, 46 Are, 86 Sq.Mtrs. situated in the sim of Village Bala Ni

Vav, Taluka Jafrabad, District Amreli. He also claims that he has

been authorized by other land losers of surrounding areas to act

on their behalf and they have executed power of attorney as

they are unable to follow lengthy legal procedures. In other

words, it is contended that owners of Survey Nos.12 to 16 of the

same Village have given power of attorney in his favour to

pursue the present petition and representing their cases also as

under the acquisition in question namely, which 3 rd respondent

has proposed to acquire the land of petitioners along with other

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lands in the adjoining areas.

2.2 Whereas petitioners Nos.1 to 4 in Special Civil Application

No.14481 of 2019 are claiming to be owners of land bearing

Survey No.104/1 paiki admeasuring 2 Hectare 25 Are 11 Sq.

Mtrs., petitioner No.5 is claiming to be owner of land bearing

Survey No.13 admeasuring 9 Hectare, 28 Are 76 Sq. Mtrs.

Whereas petitioners Nos.6 to 11 are claiming to be owners of

land bearing Survey No.14 admeasuring 6 Hectare 82 Are 91 Sq.

Mtrs. and petitioners Nos.12 and 13 are claiming to be owners of

land bearing Survey No.15 admeasuring 87 Are 01 Sq.Mtrs.

situated in the sim of Village Bala Ni Vav, Taluka Jafrabad,

District Amreli.

BRIEF BACKGROUND OF THE CASE:

2.3 Respondent No.3 for the purposes of constructing and

installing 400 KV Sub Station at Village Bala Ni Vav, Taluka

Jafrabad, District Amreli forwarded a proposal to the office of

Collector, Amreli requisitioning for acquiring land for said

purpose. Pursuant to which, a notification dated 20.8.2013

under Section 4(1) of the Old Act came to be issued proposing to

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acquire 25 Hectares 95 Are 07 Sq.Mtrs. of land and after

considering the objections raised by the land owners under

Section 5A of the Old Act, a final notification under Section 6 of

the Old Act came to be issued on 22.10.2013 proposing to

acquire the extent already specified under Section 4(1)

notification.

2.4 During the interregnum period i.e. after issuance of

preliminary notification and before issuance of final notification,

a meeting came to be held on 7.10.2013 between the land

owners and the acquiring body in the office of Collector wherein

during the course of negotiation for arriving at a settlement with

regard to value of the land, the land losers proposed the value of

the land at Rs.950/- per sq. mtr. The Collector informed 3 rd

respondent that the price of the land for industrial purposes then

prevailing was at Rs.513/- per sq.mtr. and adding solatium, he

had informed the beneficiary of acquisition that Rs.847/- per

sq.mtr. would be the ideal value of the land. However, this does

not seem to have crystallized by way of an agreement between

the parties. In other words, it was at the stage of offer by land

owners and under consideration by the beneficiary of

acquisition. The Collector also informed the beneficiary of

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acquisition that they may proceed to purchase the land by

consent @ Rs.900/- per sq.mtr. and called upon the acquiring

body to produce consent letter in this regard if they opt to do so.

This offer made by Collector also did not materialize or in other

words, said offer made by the Collector was not accepted by the

beneficiary of the acquisition.

2.5 The Collector who tried to bring about a settlement seems

to have not been successful and during this period, LA Act 2013

came into force. Thereafter, an award under Section 26 of the LA

Act, 2013 came to be passed by the Collector on 7.9.2015 fixing

the price of the land at Rs.51/- per sq.mtr. Hence, petitioners are

before this Court contending inter alia that passing of the award

is irrational and not in consonance with the provisions of the Old

Act and there being a consent award dated 7.10.2013, the same

was required to be acted upon and 3 rd respondent cannot retreat

or retrace their steps particularly when the Collector himself has

made a clear recommendation that value of the land was in the

vicinity of Rs.900/- per sq.mtr. Hence, these Special Civil

Applications.

3. We have heard Mr. Nirav C. Thakkar, learned counsel

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appearing for petitioners, Mr. D.M.Devnani, learned Assistant

Government Pleader appearing for respondent Nos.1, 2 and 4

and Mr. Viral Dave, learned counsel appearing for 3 rd respondent

in both the petitions. Perused the entire case papers.

4. Mr. Nirav C. Thakkar, learned counsel appearing for the

petitioners has reiterated grounds urged in the petitions and has

prayed for the Special Civil Applications being allowed and

acquisition proceedings being set aside or in the alternative, has

sought for direction being issued to the respondents that consent

award dated 7.10.2013 being given effect to by respondent

Nos.2 and 3.

5. Per contra, Mr. D.M. Devnani, learned Assistant

Government Pleader supported by Mr. Viral Dave, learned

counsel appearing for respondent No.3 has prayed for dismissal

of the petitions by reiterating the contents of reply affidavit and

elaborating their submission to the effect that on account of

award having not been passed under Section 11 of the Old Act,

recourse which was left open to the Collector was to determine

market value of the land under Section 26 of LA Act, 2013 and

this exercise having been undertaken and compensation also

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having been paid which has been received by petitioners, they

cannot have now recourse to either seeking for acquisition

proceedings being set aside and/or alleged or purported consent

award dated 7.10.2013 being given effect to. It is also contended

that there is no consent award at all in existence, inasmuch as

offer given by the Collector to the beneficiary of acquisition did

not materialize and on the other hand, 3 rd respondent had

categorically denied said offer and thus, there was no concluded

contract for terming the offer made by Collector to 3rd

respondent as a consent award having come into existence on

7.10.2013. Hence, they have prayed for dismissal of the Special

Civil Applications.

6. Having heard the learned counsels appearing for the

parties and after bestowing our careful and anxious

consideration to the rival contentions raised at the bar and on

careful scrutiny of the case papers placed before us, we notice

that undisputedly, negotiations were held after issuance of

preliminary notification on 20.8.2013 and before issuance of final

notification on 22.10.2013. In one such meeting held on

7.10.2013 between the land owners and the beneficiary of

acquisition, 2nd respondent-Collector had made a suggestion as

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to what would be the reasonable value of the land. It was open

for the beneficiary of acquisition to accept or to reject said offer.

In fact, there was a clear denial of such offer by 3 rd respondent

about not having agreed to the proposal made by the Collector

whereunder value of the land was offered at Rs.900/- per sq.mtr.

Communication dated 7.10.2013 which emanated from the office

of Collector, Rajula in this regard was declined by 3 rd respondent

by communication dated 7.1.2014 which has been reiterated in

paragraph 13 of the reply affidavit filed by 3 rd respondent. This

has not been controverted or seriously disputed by the

petitioners as well as 2nd respondent. This itself would clearly

suggest that so-called consent award propounded by petitioners

and said to be passed on 7.10.2013 is only a myth and it cannot

be construed that communication from the office of the Collector

addressed to 3rd respondent as a consent award. The award to

be a consent, there should have been offer as well as

acceptance. In the instant case, the offer made by either the

petitioner or by the Collector did not crystallize by way of

acceptance from the beneficiary of acquisition namely, the 3 rd

respondent. Hence, the colour sought to be attached by

petitioners to the communication dated 7.10.2013 of the

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Collector as consent award cannot be accepted and it stands

rejected.

7. Mr. Nirav Thakkar, learned counsel has relied upon the

judgment of the coordinate bench in the case of Taraben

Ishwarlal (since deceased through legal heirs) vs. State

of Gujarat delivered in Special Civil Application No.9226 of

2009. A perusal of said judgment would clearly indicate that in

the said case, owners of the land and the beneficiary namely,

respondent No.4 therein had consented for an award being

passed under Section 11(2) of the Old Act and subsequently the

beneficiary unilaterally rescinded from such agreement by

addressing a letter to respondent No.2 namely, Special Land

Acquisition Officer by withdrawing the consent given for rate of

the land offered, given and accepted by it which had got

crystallized by way of an agreement. This was termed by the

coordinate bench to be unilateral withdrawal. In fact, at

paragraph 17 of the judgment, the Coordinate Bench has clearly

noticed this fact and recorded as under:

"17. At the same time, it is to be noticed that, in the award inquiry, the petitioners as well as the representative of the 4th respondent have appeared before the 2nd respondent-Special Land Acquisition

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Officer. During pendency of the award proceedings, the petitioners and the 4th respondent beneficiary have negotiated the market value of the land in question and entered into an agreement for passing award by fixing the rate of the acquired lands at Rs.178/- per sq.mt, and such agreement is submitted to the 2nd respondent-Special Land Acquisition Officer. After such agreement is filed, wherein the parties have agreed for passing the consent award by fixing the compensation at Rs.178/- per sq.mt., the 2nd respondent-Special Land Acquisition Officer has addressed letter dated 22/23-4-2008 to the 4 th respondent requesting him to deposit an amount of Rs.29,54,800/-. No further steps were taken thereafter. But after a period of one year, letter dated 18th March, 2009 was addressed by the 4 th respondent to the 2nd respondent rescinding from the agreement entered between the petitioners. However, such letter was not addressed to the petitioners. It is not in dispute that after the letter was addressed by the 4th respondent to the 2nd respondent, withdrawing from the rate consented, no further inquiry is conducted by giving opportunity to the petitioners and the petitioners were also not informed of the letter addressed by the 4th respondent. It is clear from the record that, thereafter, the 2nd respondent-Special Land Acquisition Officer has passed impugned award by fixing the compensation at Rs.16/- per sq.mt, solely relying on the report prepared by the District Valuation Committee. It is clear from the further affidavit filed by the 2nd respondent on 19th June, 2018 that, the District Valuation Committee is constituted pursuant to Government Resolution dated 17th November, 1988. On instructions, it is submitted by learned Government Pleader appearing for the respondents that, District Valuation Committee is constituted to suggest values for acquisition of lands for ONGC and Gujarat Housing Board."

8. This would clearly indicate that consent which had been

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given by both the parties and had got crystallized by way of a

contract was sought to be rescinded in the said case. Whereas in

the instant case, the record on hand would clearly indicate that

the offer given by petitioners to respondent No.3 for fixing the

value of the land at Rs.950/- per sq.mtr. was refurbished by the

Collector and offer was made to respondent No.3 beneficiary at

Rs.900/- per sq.mtr. However, respondent No.3 did not accept

said offer made by the Collector by communication dated

7.10.2013, but on the other hand had declined said offer by

intimation/communication dated 7.1.2014. In other words, there

was no concluded contract between the parties namely,

petitioners and beneficiary of acquisition and as such, we are of

the considered view that judgment of the Coordinate Bench

pressed into service by Mr. Nirav Thakkar would not come to the

rescue of the petitioners.

9. Insofar as the contention regarding there has been

infraction on the procedure adopted by the Collector while

passing the award dated 7.10.2013 when examined in the

background of statutory provisions, it would emerge therefrom

that in the instant case, original acquisition proceeding was

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initiated under the Old Act namely, preliminary and final

notification came to be issued on 20.8.2013 and 22.10.2013

respectively. However, before the award could be passed under

the Old Act, the LA Act, 2013 came into force on 1.1.2014 and as

such, award dated 7.9.2015 came to be passed under Section 26

of the LA Act, 2013 by the Collector. As to what would be the

situation that would unfold in the event of acquisition

proceedings having been initiated under the Old Act and the

award having not yet been passed, answer to the same can be

found in Clause (a) of Sub-Section (1) of Section 24 and it reads

thus:

"24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.- (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,--

(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply;"

10. A plain reading of the above provision would make the

position clear that in a case where no award under Section 11 of

the Old Act has been made, all the provisions of the LA Act, 2013

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relating to determination of compensation would apply. Award

under Section 11 having not been passed pursuant to final

notification dated 22.10.2013, the only recourse which was left

open to the Collector was to take umbrage under Section 26 of

the LA Act, 2013 namely, the Collector was required to adopt the

criteria prescribed under Clauses (a) to (c) of Sub-Section (1) of

Section 26 to determine the market value of the land. At the

same time, while so determining, the Collector cannot ignore

section 23 of LA Act, 2013 which can be construed to be in para

materia with Sub-Section (1) of Section 11 of the Old Act. Neither

of these two Sections would contemplate of any personal hearing

being offered or granted to the land owners. In other words, the

Collector while determining market value of the land by passing

the award would take note of objection so raised which would be

the objection filed under Section 5A of the Old Act and proceed

to determine the market value of the land. It is this precise

exercise which was undertaken in the instant case by the

Collector while passing the award on 7.9.2015 (Annexure R/2). In

fact, the award which is annexed to the petition by the

petitioners themselves which is at Annexure-B would indicate the

average sale price for similarly situated land in the nearest

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Village or nearest vicinity area has been taken note of under the

award dated 7.9.2015. However, we do not propose to elaborate

further on this aspect inasmuch as remedy that may be available

to the petitioners to assail the quantum of compensation should

not get truncated by virtue of any opinion or views expressed by

us. We leave at it to be adjudicated in appropriate proceedings.

In furtherance of the award passed on 7.9.2015, a

supplementary award also came to be passed by the Deputy

Collector on 26.12.2018 vide Annexure R/3 and compensation

amount has also been received by petitioners in both the

matters. The cheques issued have been collected or received

and receipts acknowledging it have been issued by the

petitioners. It is no doubt true that said amount has been

received under protest. Obviously the petitioners would have

contemplated assailing quantum of compensation being less in

value. In that view of the matter, we are of the considered view

that the contention raised by the petitioners that the award in

question has been passed contrary to the provisions of either the

Old Act or the LA Act, 2013 cannot be accepted and it stands

rejected.

C/SCA/20184/2018 ORDER DATED: 16/02/2022

11. In the normal course, we would have reserved liberty to

petitioners to seek for reference under Section 64 of the LA Act,

2013 before the competent authority. However, we desist from

doing so since the issue of limitation is at large. Hence, without

expressing any opinion in that regard and keeping open the said

contention, we proceed to pass the following

ORDER

(i) Special Civil Applications are dismissed.

(ii) Petitioners at at liberty to proceed in

accordance with law if so advised for seeking

reference and all contention in this regard of

both parties including the issue of limitation is

kept open.

               (iii)     No order as to costs.



                                                        (ARAVIND KUMAR,CJ)




                                                    (ASHUTOSH J. SHASTRI, J)
RADHAKRISHNAN K.V.