Ishak Ahmad Ughradar (Decd) ... vs Competent Authority And Special ...
2022 Latest Caselaw 9067 Guj

      C/SCA/16163/2022                         ORDER DATED: 13/10/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 16163 of 2022

=============================================
   ISHAK AHMAD UGHRADAR (DECD) THROUGH LH RIZVAN ISHAK
                             UGHRADAR
                                Versus
 COMPETENT AUTHORITY AND SPECIAL LAND ACQUISITION OFFICER
=============================================
Appearance:
MR AJ YAGNIK(1372) for the Petitioner(s) No. 1,10,11,2,3,4,5,6,7,8,9
MS ARCHANA U AMIN(2462) for the Respondent(s) No. 2,3
MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
=============================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                            and
           HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 13/10/2022

ORAL ORDER

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

1. We have heard Mr. A.J. Yagnik, learned advocate

appearing for the petitioners, Mr. K.M. Antani, learned Assistant

Government Pleader for respondent No.1, Ms. Archana Amin

learned counsel for respondent No. 2 and 3.

2. By this petition under Article 226 of the Constitution of

India, petitioners have prayed for the following reliefs:

"(A) Your Lordships may be pleased to hold and declare that land acquisition award for Village Dahegam, Taluka

C/SCA/16163/2022 ORDER DATED: 13/10/2022

and District Bharuch annexed at Annexure-D passed by the respondent Competent Authority And Special Land Acquisition Officer under Section 20-F(1) of the Railways Act, 1989, in connection with acquisition of land for the project of 'Special Railway Project Western Dedicated Freight Corridor' and to the extent of determination of compensation as illegal and unconstitutional and Be further pleased to quash and set aside the impugned award only to the extent of manner and method in which the amount of compensation is determined and the actual amount is awarded without disturbing the entire land acquisition proceedings.

(B) Your Lordships be pleased to direct the respondent Competent Authority/Special Land Acquisition Officer and the respondent Dedicated Freight Corridor Corporation of India Ltd., in light of the ratio laid down by this Hon'ble Court in judgment and order dated 12.09.2019 passed in SCA No. 8734 of 2019 and confirmed by the Hon'ble Supreme Court vide order dated 07.01.2021 passed in Special Leave Petition (Civil) Diary No. 18777 of 2020, to apply multiplying factor 2.00 instead of 1.00 and thereby recalculate the compensation and Be further pleased to direct the respondent Competent Authority/Special Land Acquisition Officer and respondent Dedicated Freight Corridor Corporation of India Ltd., to award the recalculated compensation within a period of three months from the date of the order.

C ) Your Lordships be pleased to direct the respondents to recompute the compensation qua the lands of the petitioners by multiplying the market value as determined under Section 26(1) of the Act of 2013 with Factor 2 as per Section 26(2) and applying all other statutory benefits including solatium under Section 30(1), interest under Section 30(3) of the Act of 2013 and determine and pay such compensation with interest as per the ratio laid down by this Hon'ble Court in SCA 8734 of 2019 and other cognate matters and as confirmed by the Hon'ble Supreme Court passed in Special Leave Petition (Civil)

C/SCA/16163/2022 ORDER DATED: 13/10/2022

Diary No. 18777 of 2020.

(D) Be pleased to grant ad-interim or interim relief in terms of Clause B.

(E) To pass any other and further reliefs that may be deemed fit and proper in the interest of justice and equity."

3. It is the submission of Mr. Yagnik, learned advocate

appearing for the petitioners that petitioners are the

landholders who have their respective bits of agricultural lands

in Village Dahegam, Taluka : Bharauch District and said lands

are under their cultivation and they are totally dependent upon

it for their livelihood. The lands in question, according to Mr.

Yagnik, learned advocate appearing for petitioners are not

falling within the limits of any 'transitional area, smaller urban

area or larger urban area' as defined and specified under Article

243Q (2) and is not part of any area falling within the limits of

any Urban Local body or Municipality or Municipal Corporation

and as such, the land is not covered under any urban area.

According to Mr. Yagnik, learned advocate, the major economic

activity is agriculture and there are no significant non

agricultural activities in the village or surrounding area and the

C/SCA/16163/2022 ORDER DATED: 13/10/2022

village limits of Urban Development Area Authority, however,

no T.P. Scheme is proposed in the area and the lands are still in

agriculture zone. It is contended that preliminary notification

under Section 20A of the Railways Act, 1989 was issued on

20.05.2016. Pursuant to the same, notification under Section

20E of the Act was issued on 20.08.2016. It is further contended

that on 23.11.2016, the respondent under Section 20F(1) of the

Railways Act, 1989 passed an award dated 223.11.2016 and the

market value of the acquired lands was arrived at and though

the lands acquired are situated in rural area, the authority i.e.

respondent No.2 applied factor 1 and not factor 2. Hence, the

present petition. The main grievance raised in the petition is

that erroneously respondent no. 2 - authority applied factor 1

instead of factor 2.

4. At this juncture, learned counsels appearing for the

respective parties submitted that the issue involved in this

petition is identical to the issue decided by the Coordinate

Bench of this Court in case of Shah Rajesh Manibhai vs.

National Highway Authority of India rendered in Special Civil

Application No. 5913 of 2021 dated 23.04.2021. The said order

C/SCA/16163/2022 ORDER DATED: 13/10/2022

is further based upon a Division Bench judgment of this Court

dated 12.09.2019 passed in a group of petitions led by Special

Civil Application No. 8734 of 2019, which has since been

affirmed by the Supreme Court as the Special Leave Petition

filed by the State Government has been dismissed on

07.01.2021 in Special Leave Petition (Civil) Diary No. being

18777 of 2020. It is also submitted that the issue in the present

case is identical to the case of Dilipbhai Ganpatbhai Parmar vs.

Competent Authority rendered in Special Civil Application

No.12140 of 2021 dated 27.08.2021. It was, therefore,

submitted that this petition may also be disposed of, following

the order passed in Special Civil Application No.5913 of 2021

dated 23.04.2021. No other submissions were made.

5. Learned counsel for respondent No.2 further submitted

that as in the other cases if it is found that the petitioners are

entitled to Factor-"2" being applied for determination of

compensation and other benefits, respondent No.2 shall make

deposit within 21 days of such determination.

6. Thus, following the decision of the Coordinate Bench

C/SCA/16163/2022 ORDER DATED: 13/10/2022

rendered in Special Civil Application No.5913 of 2021 dated

23.04.2021, the present petition is disposed of with the same

directions and terms as contained in the order dated 23.04.2021

passed in Special Civil Application No.5913 of 2021.

7. However, it is clarified that if the petitioners have moved

for re-determination of compensation before the Arbitrator

under Section 3G (5) of the National Highways Act, 1956, the

petitioners may not insist for Factor-"2" claim or in the

alternative the respondents may be permitted to appraise the

Arbitrator of the said issue, so that there is no further

multiplicity or complications in the proceedings.

8. The present petition, therefore, stands disposed of

accordingly. There shall be no order as to costs.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J)

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