Gujarat High Court

Keshavlal Kamabhai Patel vs State Of Gujarat on 10 February, 2023

Bench: Ashutosh Shastri

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 22281 of 2017
                                 With
           CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
                                   In
         R/SPECIAL CIVIL APPLICATION NO. 22281 of 2017
=============================================

KESHAVLAL KAMABHAI PATEL & 1 other(s) Versus STATE OF GUJARAT & 3 other(s) ============================================= Appearance:

for the Petitioner(s) No. 1,2 MR. KULDEEP D VAIDYA(7045) for the Petitioner(s) No. 1,2 MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,2 MR DEEP D VYAS(3869) for the Respondent(s) No. 4

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

Date : 10/02/2023

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

1. Present petition under Article 226 of the Constitution of

India is filed for the purpose of seeking following reliefs:-

(A) THAT a writ of mandamus and or any other writ or declaration may please be issued declaring that the land acquisition proceedings under (i) LAQ Case No. 152/78, Notification under Section 4 dated 06-10- 1972, and Notification under Section 6 dated 20-05-1974, and Award dated 30/12/77 for acquisition of Petitioner's lands bearing Block No. 71 admeasuring 13658 sq.mts., Block No. 72 admeasuring 37231 sq.mts., Block No. 73 admeasuring 25394 sq.mts. of Moje-Hanspura, Taluka earlier (Daskroi) now Asarva District Ahmedabad is deemed to have lapsed under Sec.24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013;

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(B) THAT during the pendency of the petition. herein the Respondents its Officers and Subordinates may please be restrained from in any manner changing or altering the Revenue Records and entries as also disturbing the possession of the Petitioners of the Agricultural Land bearing Survey No.71, 72 & 73 at Moje - Hanspura, Taluka earlier (Daskroi) now Asarva District Ahmedabad;

(D) Such order or orders as in the interest of justice this Hon'ble Court may deem fit and proper may please be made.

2. The background of facts which have given rise to this

petition is that petitioners are agriculturists having agricultural

lands, are claiming to be owners and occupiers and are said to

be in possession of such agricultural lands bearing Block No.71

admeasuring 32072 Sq. Mtrs., Block No.72 admeasuring 37231

Sq. Mtrs. and Block No.73 admeausring 25394 Sq. Mtrs.,

situated at Hanspura, Taluka (Daskroi earlier) now Asarwa,

District and Sub-District Ahmedabad. It is the case of the

petitioners that after making inquiries about title of the lands,

aforesaid lands were purchased from the original owners under

three sale deeds dated 27.11.1997 and got registered before the

office of Sub-Assurance, Asarwa under Registration No.4161, 62

and 63 and names of petitioners came to be mutated in the

revenue records as well. According to petitioners, there were

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three tenements / outhouses in the said agricultural lands

wherein, vendors and their family members, including labourers

were residing and storing their agricultural equipment and were

also paying property tax, water tax, land revenue tax to

Sardarnagar Panchayat and on extension of Corporation limits,

petitioners were paying property taxes to Ahmedabad Municipal

Corporation.

3. According to petitioners, in the month of March 2000,

precisely on 18.3.2000, when on account of ensuing monsoon

season, petitioners started developing and improving lands by

executing fencing, at that juncture, officers of respondent

Municipal Corporation came to the site and objected for

petitioners undertaking the work of fencing or any development

activity and posed threat of dire consequences of prosecuting

the petitioners. It has been indicated at that time that lands are

belonging to Corporation and has been acquired already for the

purposes of Sardarnagar Underground Drainage Project by

Executive Engineer, Public Health Department of State of

Gujarat in 1972 itself. On Account of such prevention by

corporation, petitioners filed a suit being Civil Suit No.153 of

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2000 in the Court of learned Civil Judge for seeking declaration

and injunction for restraining Ahmedabad Municipal

Corporation and its officers and agents from creating any

disturbance of possession of petitioners over the land in

question and sought for a declaration that Corporation has no

right, title or interest over the land in question. On perusal of

the said stand, initially learned Trial Judge was pleased to direct

status-quo to be maintained on 28.3.2000, which was extended

from time to time, but later on, on 1.5.2003 same came be

vacated. As a result of this, a Misc. Civil Appeal was filed before

District Court, Ahmedabad-Rural being Misc. Civil Appeal No.62

of 2003 and during the course of appeal, on 2.7.2003 an order

came to be passed by the Trial Court vacating the interim relief

of stay. However, according to petitioners, later on, after

hearing, on 16.11.2017 the appeal got dismissed and a direction

was issued to the Trial Court to decide the civil suit within a

period of 12 months and said order was stayed for four weeks

upon request of petitioners.

4. It is further case of petitioners that from the record of

proceedings, lands in question are said to have been acquired

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under the provisions of the Land Acquisition Act by issuance of

notification under Section 4 of the Act on 23.11.1972 and

Section 6 Notification was issued on 20.5.1974 and declaration

of award has also been made on 30.12.1977. It is further case of

the petitioners that even predecessors i.e. erstwhile owners of

the land question had filed Reference under Section 18 of the

Land Acquisition Act before Assistant Judge, Viramgam seeking

enhancement of compensation and feeling aggrieved by the

decision of the Reference Court, first appeal had also been filed

in F. A. No.1350 of 1982. Said first appeal by common judgment

and award dated 17.12.1993 has been disposed of whereby the

amount of compensation came to be enhanced from Rs. 4/- to

Rs. 5/- per Sq. Mtr. with additional benefits prescribed under

the Land Acquisition Act, 1894.

5. It is further assertion of petitioners that Ahmedabad

Municipal Corporation appears to have filed an appeal before

Deputy Collector, Viramgam challenging mutation entry

Nos.1622 dated 15.11.1999, 1625 dated 29.11.1999 and 1612

dated 13.5.1999 with respect to Survey Nos.71, 72 and 73

respectively which were made pursuant to registered sale

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transactions in favour of petitioners. Deputy Collector rejected

the appeals of Municipal Corporation vide order dated

27.2.2001. It also appears that revision application was also

preferred pursuant to such order before the Collector,

Ahmedabad who was pleased to pass an order on 20.6.2002,

whereby he continued the order of Deputy Collector i.e. order

dated 27.2.2001 till final disposal of Civil Suit No.153 of 2000.

Against the same, a further revision application was filed before

the Special Secretary, Revenue Department by Ahmedabad

Municipal Corporation who by three separate orders on

8.7.2013 was pleased to remand the matter back to the Deputy

Collector for fresh determination of the issue as to whether

petitioners are in actual possession of land in question or not

pursuant to the registered sale transactions and keeping in view

the stand of Ahmedabad Municipal Corporation about

acquisition. City Deputy Collector on 19.6.2017 was pleased to

direct that appeal be filed and removed the case from the files

as asserted by the petitioners.

6. It is the case of the petitioners that possession of the land

in question remained with the erstwhile owners and they had

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cultivated the same till petitioners purchased land through

registered sale deeds in November 1997. Petitioners are

bonafide purchasers and they took all reasonable steps to see

that their names may be mutated in the revenue records. Even

till November 2017, names of petitioners are reflected as

owners of the land and are claiming to be in physical possession

of the land, paying revenue cess as well as property tax to the

competent authority. In the premise aforesaid, petitioners have

asserted that they are in physical possession of the land in

question and same has never been taken over in any acquisition

proceedings under the provisions of the Land Acquisition Act

and as such it it contended, by virtue of enactment of Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013, acquisition

proceedings are deemed to have elapsed and and as such by

raising brief contentions to the said effect, present petition is

brought before this Court under Article 226 of the Constitution

of India for the reliefs which are set out herein-before.

7. During pendency of the proceedings, petitioners have also

submitted a Draft Amendment raising additional grounds with

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regard to identification of ownership over the lands, with

respect to Block Nos.71, 72 and 73 by indicating contents from

form No.F, names of petitioners are reflecting as land owners

and by producing few documents showing that property tax

having been paid, which is said to have been paid upto 1.9.2021

and by relying upon communication dated 21.12.1988, it has

been stated that lands in question are standing in the names of

petitioners. Block No.71 stated to be in the name of Shavaji

Babaji, Block No.72 in the name of Surajben, whereas Block

No.73 stated to be standing in the name of Mangaji Somaji and

this is tried to be fortified by endorsement made on 21.12.1988

by Hanspura Gram Panchayat.

8. It has been further contended that if land which has been

acquired is not put to any use for a pretty long period, then by

virtue of Section 21 of the Gujarat Town Planning Act, 1976,

petitioners have got right to resume the land and acquisition

proceedings would be deemed to have elapsed. Even where the

project was implemented, which is quite far away,

approximately 6 kilometer away, whereas petitioners' lands

have never been put to any use and as such by tendering such

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draft amendment and by inviting attention to some of the

contents stated in it dated 3.3.2022, a case is tried to be

developed for claiming the reliefs as prayed for in the petition.

9. Initially, petition on the basis of said unilateral version has

been entertained by previous Coordinate Bench of this Court by

noting down the stand of petitioners and was pleased to pass an

order on 12.12.2017, which is reproduced hereunder which is

relevant and after the matter getting adjourned from time to

time, it has come up for consideration before this Court in which

learned advocate Mr. Sammith S. for Mr. Kuldeep D. Vaidya has

represented the petitioners, whereas learned advocate Mr. Deep

D. Vyas has represented respondent No.4 and Mr. K.M. Antani,

learned Assistant Government Pleader has represented

respondent No.1. The order dated 12.12.2017 reads as under :

1. From the record it emerges that the land in question came to be acquired by the State Government, for which, the award under the Land Acquisition Act, 1894, was passed on 30.12.1977. The petitioner claims to have purchased the land through registered sale deeds dated 27.11.1997. Case of the petitioner is that all throughout the erstwhile land owners were not paid compensation nor the possession of the land taken over by the Government. When the Ahmedabad Municipal Corporation tried to dis-possess the petitioner relying on the acquisition of the land, the petitioner filed a civil suit in which initially interim injunction was granted.

After the Exh.5 application was dismissed by the trial Court, the petitioner had preferred the Appeal from Order before the

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Sessions Court which came to be dismissed recently by an order dated 16.11.2017.

2. In this background, the petitioner has invoked the provisions of section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 ('the Act' for short) contending that since neither the compensation has been paid nor the possession of the land taken over, the acquisition in terms of section 24(2) of the Act has lapsed.

3. In this context, few early questions arise. One is, whether the petitioner is correct in contending that compensation was neither paid nor offered, nor the possession of the land taken over. Second is, if the acquisition was over by passing the award on 31.12.1997, could the petitioner have purchased such land which could be stated to have vested in the Government. Third is whether the petitioner can claim to be a bona-fide purchaser for value without notice when the public notices and title clearance certificate issued, were preceded by the sale deed. Next question would be the effect of the interim injunction granted by the trial Court and thereafter extended by the District Court and the applicability of the further proviso to section 24 (2) of the Act inserted by the State amendment through Gujarat Act No. 12 of 2016. All these questions can be considered together once when we have full response from the other side. For such purpose, let there be NOTICE, returnable on 26.12.2017. Since the injunction granted by the Courts below have continued for several years, by way of ad-interim relief, it is directed that both sides shall maintain status-quo till the next date of hearing.

10. Learned advocate Mr. Sammith S. appearing for

petitioners has vehemently contended that petitioners are

subsequent purchasers and have legitimate right to challenge

the land acquisition proceedings said to have been initiated and

concluded. According to him, if acquisition has been abandoned

and stood lapsed on account of efflux of time or on account of

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any omission on the part of acquiring authority, right accrued to

the original owners to deal with property including sale and by

virtue of same, subsequent purchasers i.e. petitioners will have

right to protect their interest and for canvassing such

submission, learned advocate has made a reference to a

decision delivered in the case of Bangalore Development

Authority v. M/s. Sri Kumaran Children Home. It has been

further contended that if possession is not taken under Section

16 of the Act, fact of notification under Section 4 and

subsequent declaration under Section 6 would not divest the

owner of his right in respect of the land or relieve him of the

duty to take care of the land and protect it against

encroachment and here, according to him, possession is still

with petitioners and it has never been taken away. In view of

the law laid down by this Court in the case of Godrej & Boyce

reported in (1988)1 SCC 124 (paragraph 5), said contention is

tried to be substantiated. It has further been contended that

even if land is acquired and has not been utilized for several

years by the acquiring authority for the purpose for which it was

acquired, right of land owner revives to get back the land and

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that contention is well supported by a case reported in ILR 2005

KAR 295 in the case of D. Narayanappa v. State of Karnataka

and others.

11. Additionally, learned advocate Mr. Sammith S. has

submitted that vesting of land can be concluded the moment

various steps are taken as contemplated under the Act namely

Section 4 notification, declaration under Section 6, then notice

under Section 9 and thereafter award under Section 11 and

subsequently an issue related to possession and it is only

thereafter Section 16 of the Act can be said to have been

observed and this is not visible in the present background of

facts. As a result of this, the relief prayed for in the petition

deserves to be granted.

12. According to learned advocate for petitioners, possession

under Section 16 of the Act of the acquired land would be taken

only by way of Memorandum and panchnama, which is legally

acceptable. Respondents have not taken possession by issuing

any notification in this regard and as such possession can never

be said to have been obtained by the petitioners. It has been

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further contended that by virtue of notice and notification

issued by respondents, factum of ownership over the land has

been recognized and accepted which clearly establishes that

possession has never been taken of the said land. If earlier land

acquisition proceedings were valid and if possession was taken

by an authority, names of petitioners would not have been

reflected as owners of said property in revenue records and it

has been further pointed out that Annexure-O reflecting on page

223/Z/120 indicates that there was a letter issued by the Town

Planning Officer in the names of petitioners. In fact, names of

petitioners are very much reflected in the documents related to

payment of property taxes and as such, when petitioners are

bonafide purchasers of the land in question through registered

sale transaction and clearance certificate was also obtained and

same having not been objected by the respondents, no mutation

entry in the name of Government was even recorded in the

records of rights, hence mode of taking possession can be said

to be in serious controversy. It is settled procedure that

whenever agricultural land is to be resumed, there must be

issuance of notice to land owner and possession can be taken in

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the presence of independent witnesses after taking appropriate

signature. Said aspect has not been reflected in the present

case on hand and as such by relying upon the decision delivered

by the Hon'ble Apex Court in the case of Banda Development

Authority reported in (2011) 5 SCC 394, a contention is raised

that possession has not been resumed in lawful manner and

mere rojkam unilaterally executed cannot be said to be a

possession receipt for taking over possession under the Land

Acquisition Act, 1894.

13. Additionally, learned advocate for petitioners has

submitted that in fact Sardarnagar Underground Drainage

Scheme for which lands were notified to be acquired was never

implemented with respect to the said property. In fact, said

scheme was implemented by utilizing the lands which were far

away approximately 6 kilometer away from the property and as

such, drainage scheme having been abandoned in respect of

said land, proceedings have been lapsed. In fact, authority

subsequently issued another notification for acquisition with

respect to said land and passed an award on 27.3.2009 for

implementation of Hanspura Approach road connecting to

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Naroda- Kathwada road and as such considering this

irregularity which has crept in, it has been contended that

acquisition proceedings once initiated must be completed by

passing an award and simultaneously by paying compensation

followed by taking over possession within a reasonable period

and this must be strictly observed as has been held in the case

of Bangalore Development Authority (supra) and sum and

substance of overall submission of learned advocate for

petitioners is that respondents have neither taken possession of

land nor acquiring authority have implemented the scheme for

which it was acquired for more than 50 years by now and as a

result of this, purpose of said land for which lands were

acquired has lapsed itself. Hence, relief sought for in the

petition deserves to be granted.

14. To strengthen his submission, learned advocate Mr.

Sammith S. appearing for petitioners has tendered decisions in

two sets of compilation, which in the background of the present

facts would be appropriately dealt in case of necessity since

these judgments have been tendered by merely asserting that

proposition is substantiated and Court may look into. In view of

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this situation, same be appropriately dealt with in the present

order in later part of the judgment. Said judgments are Banda

Development Authority v. Motilal Aggarwal and ors. [(2011)

5SCC 394], Balwant Narayan Bhagde v M.D. Bhagwat and ors.

[(1976) 1 SCC 700], State of Tamil Nadu and anr. v.

Mahalakshmi Ammal and Ors. [(1996) 7 SCC 269], Balmokand

Khatri Educational and Industrial Trust, Amritsar v. State of

Punjab & Ors. [(1996) 4 SCC 212], D. Narayanappa v. State of

Karnataka and ors. [ILR 2005 Kar 295], Bangalore Development

Authority v. State of Karnataka [ILR 2018 KAR 2144], Gautam

Kamat Hotels Pvt. Ltd. & Ors. v. Bangalore Development

Authority [ILR 2012 Kar 5634], Special Land Acquisition Officer,

Bombay and ors. v. Godrej and Boyce [(1988) 1 SCC 50],

Popatrao Vyankatrao Patil v. State of Maharashtra and ors.

[2020 SCC OnLine SC 291], ABL International Ltd. and anr. V.

Export Credit Guarantee Corporation of India Ltd. and ors.

[(2004) 3 SCC 553], Maheshbhai Revabhai Pandya v. State of

Gujarat [R/WP (PIL) No. 130/2019], D.B Basnett v Collector,

East District, Gangtok, Sikkim and Anr. [(2020) 4 SCC 572],

Vidya Devi v. State of H.P. [(2020) 2 SCC 569], Tukarama Kana

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Joshi v. Maharashtra Industrial Development Corporation

[(2011) 10 SCC 404], Prahlad Singh and ors. v. Union of India

and ors. [(2011) 5 SCC 386], Bimla Devi and ors. v. State of

Haryana and ors. [(2014) 6 SCC 583], Bharat Kumar v. State of

Haryana and Anr. [(2014) 6 SCC 586], Pawan Kumar Aggarwal

v. State of Punjab and Ors. [(2016) 7 SCC 614], Working Friends

Cooperative House Building Society Ltd.v. State of Punjab and

ors. [(2016) 15 SCC 464], Union of India and ors. v. Shiv Raj and

ors. [(2014) 6 SCC 564], Magnum Promoters Pvt. Ltd. V. Union

of India and ors., [(2015) 3 SCC 327], Sri C Jacob v. The

Secretary [2020 SCC OnLine KAR 308], Ram Chand and Ors. v.

Union of India [(1994) 1 SCC 44], Surya Prakash v. State of

Karnataka, 2016 SCC OnLine KAR 8215, Bangalore

Development Authority v. M/s. Sri Kumaran Children's Home,

W.A. No. 2020/2017 & W.A. No. 4686/2017 dated 17/10/2017,

K.T. Plantation Pvt. Ltd. and Anr. v. State of Karnataka [2011 (9)

SCC 1], Balmadies Plantations Ltd and Anr. v. State of

Karnataka [1972 (2) SCC 133], Sri. H.N. Shivanna and Ors. v.

The State of Karnatana and Anr. [2012 SCC OnLine KAR 8956] ,

Smt. Nagu Bai and Ors. v. State of Karnataka [2001 SCC OnLine

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KAR 88], Meenakshi Thimmaiah and Ors. v. State of Karnataka

and Anr. [2009 SCC Online Kar 417] and Ram Kumar v. Union

India and Ors.,[2002 SCC Online Del 1070]. No other

submissions have been made.

15. As against this, learned advocate Mr. Deep D. Vyas

appearing on behalf of respondent No.4, i.e. Ahmedabad

Municipal Corporation, has vehemently opposed the petition

and submitted that conduct of petitioners itself is sufficient

enough not to exercise extraordinary jurisdiction under Article

226 of the Constitution of India. By giving list of chronology of

events date-wise, a contention is raised that in the findings of

the entire award which was under challenge by erstwhile

owners, there were no contentions raised or grievance raised

with regard to taking over possession of the subject land and at

no point of time, owners had declared passing of a clear and

marketable title of the land in question and as such, they could

not have passed better right or title to subsequent purchasers,

i.e. present petitioners than what they possessed. In fact, land in

question is a new tenure land and could not have been

transacted or sold without express permission of the State

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authority and by taking premium and same is visible completely

missing and as such, petitioners have no right to claim relief as

prayed for in the petition. According to Mr. Vyas, name of

erstwhile authority was reflected in the revenue record namely

7/12 extract and lands were in possession for Sardar Nagar

Yojna and as such, petitioners can never be entitled to claim as

if they are bonafide purchasers for value without notice. This

fact of purchase transaction of petitioners itself is in cloud. Any

sale of land or alienation of any property subsequent to

notification under Section 4(1) of the Act is void against the

respondents and purchaser does not acquire any right, title or

interest in the land and as such, petitioners cannot challenge

legality and validity since at the best a mere limited right of

claiming compensation would be available and nothing beyond.

16. According to Mr. Vyas, petition and claim made is clearly

hit by well recognized principle of delay and laches and

acquiescence. In view of the fact that acquisition relates to the

year 1972 and 1977, whereas present petition and reliefs sought

are almost after a lapse of 40 years. Despite having specific

knowledge about this acquisition proceedings in the year 2000,

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at best still present proceedings are clearly hit by principles of

delay and laches. Acquisition proceedings had never been

challenged at earlier point of time and as such now it is not

open for petitioners who are purchasers after issuance of 4(1)

notification to claim any relief as sought.

17. Apart from this this, learned advocate Mr. Deep D. Vyas

has further submitted that these issues raised in the petition are

seriously disputed questions of fact. Further, acquiring

authority's possession is an established position reflecting in the

land acquisition award itself which was not under challenge and

furthermore, not only acquiring authority had written to State

authority to exempt revenue tax whose names are already

entered in the revenue records which were never challenged in

any judicial proceedings either by erstwhile owners or by

petitioners and as such a person cannot transfer a better right

than what he had and prayer is hit by another principle that one

who claims equity must do equity and as such in any case, relief

in the present form is impermissible in respectful submission of

learned advocate Mr. Vyas.

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18. Learned advocate Mr. Deep D. Vyas has further submitted

that object of land acquisition is to seek acquisition of land

which is needed for public purpose and also for determining

compensation on account of such acquisition and Acquisition

Act is not only the Central Act but also a special enactment

aiming for the purpose and as such whenever there is a conflict

between public interest and private interest, private interest

always get merged with public interest. In fact, according to Mr.

Vyas, petitioners have no locus standi at all and to seek any

relief as if acquisition stood lapsed. It has been contended that

even after merging the area within Corporation limits,

possession along with maintenance, operation and supply of the

project was handed over to the Corporation way back in the

year 1986 and presently, despite court proceedings initiated,

this kind of contentions have been raised for first time in the

year 2022. It has been further submitted that revenue entries

are for fiscal purpose and it would not confer any title and here

in the present case on hand, voluminous evidence is self-

explanatory which would clearly indicate that Corporation is in

actual possession and as such serious disputed version with

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regard to possession as against voluminous evidence can never

be agitated by petitioners in a petition under Article 226 of the

Constitution of India. The very conduct of petitioners is self-

explanatory which would oust the petitioners from extraordinary

jurisdiction of this Court.

19. To substantiate his contentions, learned advocate Mr. Vyas

has made a reference to the decisions, namely U.P. Jal Nigam,

Lucknow Through its Chairman and Another Vs. Kalra

Properties (P) Ltd., Lucknow and others reported in (1996) 3

SCC 124, Meera Sahni Vs. Lieutenant Governor of Delhi and

others reported in (2008)9 SCC 177, M. Venkatesh and others

Vs. Commissioner, Bangalore Development Authority reported

in (2015) 17 SCC 1, Babulal Badriprasad Varma Vs. Surat

Municipal Corporation and others reported in (2008) 12 SCC

401 and Jitendra Singh Vs. State of Madhya Pradesh and others

reported in 2021 SCC OnLine 802, which the Court would deal

at appropriate stage in the present order.

20. In furtherance and in chorus with learned advocate Mr.

Deep D. Vyas, learned Assistant Government Pleader Mr. K.M.

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Antani has also vehemently opposed the petition by contending

that petitionners cannot invoke extraordinary jurisdiction of this

Court in present factual scenario where there are serious

disputed version with regard to practically every issue. Hence,

that being so, petition may not be entertained in the interest of

justice and they have requested to be dismissed. Mr. Antani has

also added that looking to the conduct of petitioners, petition

may be dismissed with exemplary costs. There is seriously delay

crept in while invoking extraordinary jurisdiction by petitioners

and that also is a substantial ground on which petition may not

be entertained. Hence, no relief be granted in favour of the

petitioners.

21. Having heard the learned advocates appearing for the

parties and having gone through material on record before us,

few circumstances are not possible to go un-noticed by this

Court while examining the grievance of the petitioners:

(1) From the record, it appears, as has stoutly been projected

by respondent Corporation, that Section 4 notification came to

be issued way back on 23.11.1972, whereas declaration under

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Section 6 of the Act has been made long back on 20.5.1974.

After issuance of notices under Sections 9 and 10 of the Act,

award came to be passed in favour of the acquiring authority for

public purpose of Sardarnagar Yojna Underground Drainage

Scheme. In the award itself, it is recorded that acquiring body

has already taken possession of land directly through private

negotiations as is reflected from page 274 of the petition

compilation. Even document at Page 268, namely the award,

reflects that even a joint measurement of the land was carried

out by surveyor on 14.4.1972 and it is clearly mentioned in

column No.IV on page 269 that neither interested persons nor

acquiring body have taken any objection regarding such joint

measurement and as such, the area under joint measurement

was accepted as indicated. The interested persons have also

generated a claim with respect to items which are stated and as

such it appears that upon procedure having been followed,

competent authority has awarded compensation.

(2) In fact, it appears from page 242 of the petition

compilation that during pendency of Reference, amount

indicated in the communication dated 8.2.1978 has been

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deposited with an undertaking that persons namely Lakhaji

Somaji Thakor and Mangaji Somaji Thakor had not withdrawn

said amount till reference filed by him is decided. This would

clearly indicate that erstwhile owners appears to have filed

reference under Section 18 and said cases were registered as

L.A. Case Nos.152, 153, 154 of 1978 and claim made with

respect to compensation in which taking over of possession was

never an issue raised as clearly mentioned by the counsel

appearing for Corporation. Contents of one of the references

filed by Lakhaji Somaji reflecting on page 239 indicates that in

paragraph 8, a substantial issue is raised with regard to

payment of compensation claimed.

(3) The record of the case has further indicated that by virtue

of common judgment and order dated 1.9.1980, references

which were filed under Section 18 of the Act came to be allowed

and the amount of compensation has been enhanced. Feeling

aggrieved by said order under reference, it appears that

erstwhile owners namely Mangaji Babaji and others have filed

First Appeals under Section 54 of the Land Acquisition Act,

being First Appeal Nos.1350 of 1982, 1033 of 1982 and 1351 of

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1982 before this Court. By a common judgment and order dated

17.12.1993, said first appeals came to be disposed by the

Division Bench of this Court. Operative part of the same

deserves to reproduce hereunder:-

"For the reasons stated in accompanying common oral judgment recorded in F. A. No.1033/82 the court partly allows the appeal with proportionate costs to the extent as stated in the judgment. The court modifies the judgment and award the Ld. Extra Asst. Judge dated 1.9.90 to the extent that the claimants shall be entitled to amount of compensation at Rs. 5/- per sq. mt. and so far as the solatium in question is concerned after deducting the amount of compensation which is already determined and paid at the rate of Rs. 4/- per sq. mt. by the Ld. Extra Asst. Judge in this judgment and Award and on such excess amount they shall be entitled to solatium at 15 with proportionate cost on the amount allowed and later at the rate of 4.5 p.a on excess amount awarded. Judgment and the award of the Ld. Extra Asst. Judge is also modified to the extent of directing that with respect to land bearing Block No. 71 and 72 there shall be deduction of 5% towards the claim of the Govt and not 1/3rd amount as directed in the Judgment and award of the learned Asst. Judge."

(4) Apart from this, possession with respect to Survey

Nos.86/1, 87, 88, 88/1-2 and 89 has already been taken on

8.1.1976 and in the communication/ rojkam dated 25.5.1978

found at page 232, it indicates that acquisition proceedings

have already been concluded and simultaneously, document at

page 230 dated 8.10.1976 would also reflect the request for not

paying revenue cess since land in question is already resumed

under acquisition by an authority was made. This

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communication is written by Deputy Engineer of respondent

authority to the Collector, Ahmedabad District. Further, it

appears that after merger of the land, area into city limits,

possession along with maintenance, operation and supply of

project have been entrusted to the Corporation as can be seen

from page 233 of the petition compilation and even partner of

Adarsh Security and Personal Force has informed to Sewage

Department In-charge officer of North Zone that security duty of

Hanspura Block Nos.71, 72 and 73 has been taken over with

effect from 11.4.2000. Now, all this situation reflecting from

series of documents would clearly go to show that emphatically

respondent authority has projected a clear stand that pursuant

to acquisition, possession has already been taken over and with

respect to compensation, references have also been made which

culminated into an order right up this Court in First Appeals, as

stated above.

(5) Normally, we would not have applied microscopic scrutiny

over the record and proceedings, but since petitioners have

tried to agitate and raise a controversy with regard to

possession itself, we have further perused the records and find

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it would (page 252) indicate that a 7/12 extract which is clearly

reflecting the name of the acquiring authority's project wherein

Sardarnagar Gutter Yojna is very much reflecting and in the

very next document in translated version, it has been indicated

in the column 'other rights' that land is a new tenure land

undivided. So, when these documents on record are indicating

that possession appears to have been taken in clear terms and

there is hardly any reason for us to take a different view simply

because petitioners are stated to have purchased the land. In

fact, further documents from page 251-A, 251-B, 251-C and 251-

D, are clearly indicating that even interest has also been paid to

the erstwhile owners since possession has been taken over. All

these documents if were to be taken to its logical end, it would

clearly indicate that not only possession has been taken over but

even compensation has also been determined and paid.

(6) While examining the issue raised by the petitioners, we

have also perused further documents which are to the effect

that an attempt was made to grab the land in connivance with

some officers and as such a complaint was also lodged before

Naroda Police Station under the provisions of Indian Penal Code

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being C.R. No.I-0498 of 2000. This has been filed by the

Commissioner of Corporation himself to the Secretary, Revenue

Department of State. In addition to this, certain steps have also

been contemplated for taking disciplinary action by calling

explanation in specific terms within a period of 15 days. Hence,

when this be so, the issues are centering around a seriously

disputed version of petitioners and very surprisingly, it has been

found that despite aforesaid fact situation, Civil Suit No.153 of

2000 was filed by plaintiffs in the Court of learned Civil Judge,

Ahmedabad (Rural). Relief under Exh.5 application which

initially came to be granted was later vacated by order dated

1.5.2003 after taking note of detailed circumstances pointed out

in the written statement by the Corporation along with all

necessary documents. Said order of rejection passed on Exh.5 is

dated 1.5.2003 in which also, conclusion has been arrived at

that erstwhile owners or petitioners after acquisition of lands

have accepted the compensation amount with objection which

fact is not in dispute. Hence, a clear conclusion is arrived at that

land has vested with Government upon acquisition and as such

prima facie having found no case, Exh.5 application came to be

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rejected and earlier ex-parte granted.

(7) It further appears that on vacation of interim order i.e.

Exh.5, same appears to have been challenged by way of Misc.

Civil Appeal No.62 of 2003, but said order has not been

disturbed, on the contrary it came to be confirmed in Misc. Civil

Appeal. Further, respondent Corporation has already challenged

the action of mutation of names of petitioners in revenue record

on 19.6.2017 in which, City Deputy Collector has observed that

implementation is required to be done ultimately in the final

decision which may taken place in the Civil Suit No.153 of 2000.

This is the situation prevailing on record and as such, against

these voluminous evidence reflecting contention raised by

petitioners that possession of land has not been taken, cannot

be entertained.

(8) In the light of aforesaid material which is prevailing on

record, plea which has been raised by the petitioners about not

taking over possession nor payment of compensation, etc. would

not worthy of acceptance. In fact, first notification under

Section 4 came to be issued on 23.11.1972, whereas petitioners

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are said to have purchased the land somewhere on 27.11.1997

and after issuance of such notification and since the suit is

already pending, as stated before us, without expressing any

opinion on title and validity of transaction, we may rest here to

indicate that there is no prima facie stand worthy of

consideration much less acceptance even about title of

petitioners. Of-course same will be adjudicated upon at length

at an appropriate forum where petitioners would like to agitate

but these are the relevant circumstances sufficient enough for

us to hold that this is not a fit case for exercise of extraordinary

jurisdiction in the background of seriously disputed version.

Article 226 of the Constitution of India cannot be resorted to by

the petitioners to raise such kind of pleas and to request to

adjudicate the same when such stand is seriously disputed.

(9) Whether land has been put to utility for the purpose for

which it has been acquired is also not possible to be accepted

by us in view of the aforesaid chequered history of litigation and

we are sure that even if same has not been put to utility,

background of facts would clearly indicate that at least

petitioners are not entitled to any relief in exercise of equitable

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jurisdiction and in view of the peculiar background of facts

which are analyzed herein-before.

22. Now, in the light of the aforesaid circumstances of the

case, while going through the relevant provisions under which

an attempt is made by petitioners to seek a declaration that by

virtue of Section 24(2) of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation &

Resettlement Act, 2013, land acquisition proceedings have

lapsed. In fact, language of Section 24(2) if it is taken to its

literal sense would postulate that two situations are postulating;

that physical possession has not been taken or compensation

has not been paid, however which of such contingencies are not

reflecting herein-before. Section 24 reads thus :

24. Land acquisition proess under Act No.1 of 1894 shall be deemed to have lapsed in certain cases.

            (1)     ..............
            (2)     Notwithstanding anything contained in sub-section (1), in

case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, If it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the

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provisions of this Act

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.

23. In this context, decisions which have been cited by learned

counseld appearing for both the sides will have to be considered

whether same are possible to be pressed into service in peculiar

background of present facts on hand.

(1) First of all, undisputably, petitioners have purchased the

land after issuance of notification under Section 4 of the Act.

Section 4 notification stated to have been issued on 6.10.1972,

whereas lands are purchased by the petitioners in 21st

November 1997 and as such, a perusal of decision delivered by

the Hon'ble Apex Court in the case of U.P. Jal Nigam, Lucknow

Through its Chairman and Another Vs. Kalra Properties (P) Ltd.,

Lucknow and others reported in (1996) 3 SCC 124 would

indicate that beneficiary of such transaction does not acquire

any right, title or interest lawfully. In paragraph 3 of said

decision, it has been observed that sale having taken place after

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issuance of notification under Section 4(1) itself is void against

the State and it acquired no right, title or interest. Paragraph 3

of the said decision is reproduced here-under:-

"3. The learned Attorney General for the appellants contended that after the judgment, it has come to light that in respect of the self-same lands, the market value as per the guidelines issued by the Government was determined for stamp duty at Rs. 80/- per square yard in Ziamou area and the respondent himself had purchased the land for Rs. 60,000/- in 1989. The determination of the compensation by the Collector @ Rs. 200/- per square foot is an obvious error apparent on the face of the record and the directions issued by the Division Bench are vitiated by manifest error of law. Shri Gopal Subramanyam, the learned senior counsel, who has sought for and granted 15 adjournments on the ground that matter is being settled, has informed the Court that the settlement has not been reached and it is under process. He has sought further extension of time. Since the case has been adjourned several times, we are not inclined to adjourn the case. In his usual fairness, he has stated that he does not stand on technicalities. The respondent has purchased the land in question. The acquisition covered about 10,000 square feet in addition, the respondent had purchased another 5,000/- square feet which was also taken possession of by the respondent under the notification but the same does not from part of the acquisition. He contended that since possession was taken before declaration under Section 6 was published, it was not validly taken. Admittedly, the award was not made even after two years of the coming into force of the Amendment Act.

Therefore, the notification under Section 4(1) and the declaration under Section 6 shall stand lapsed by operation of Section 11A of the Act. Thereby, the respondent is entitled to the compensation on the basis of prevailing market value. The District Collector had assessed the market value at Rs.200/- per square foot and, therefore, there is no illegality in the order of the Division bench in directing payment of the compensation @ Rs. 200/- per square foot and also the consequential solatium and interest. Having regard to the facts of this case, we were not inclined to further adjourn the case nor to remit the case for fresh consideration by the High Court. It is settled law that after the notification under Section 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property. In this case, notification under Section 4[1] was

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published on March 24, 1973, possession of the land admittedly was taken on July 5, 1973 and pumping station house was constructed. No doubt, declaration under Section 6 was published later on July 8, 1973. Admittedly power under Section 17(4) was exercised dispensing with the enquiry under Section 5A and on service of the notice under Section 9 possession was taken, since urgency was acute, viz., pumping station house was to be constructed to drain out flood water. Consequently, the land stood vested in the State under Section 17 [2] free from all encumbrances. It is further settled law that once possession is taken, by operation of Section 17(2), the land vests in the State free from all encumbrances unless a notification under Section 48(1) is published in the Gazette withdrawing from the acquisition. Section 11A, as amended by Act 68 of 1984, therefore, does not apply and the acquisition does not lapse. The notification under Section 4(1) and the declaration under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification under Section 48(1) was published and the possession are surrendered pursuant thereto. That apart, since M/s. Kalra Properties, respondent had purchased the land after the notification under Section 4(1) was published, its sale is void against the State and it acquired no right, title or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before publication of the declaration under Section 6 was published.

(2) Said principle has also been reiterated in further decisions

in the case of Meera Sahni Vs. Lieutenant Governor of Delhi and

others reported in (2008)9 SCC 177 (paragraph 18 to 21) and in

the case of M. Venkatesh and others Vs. Commissioner,

Bangalore Development Authority reported in (2015) 17 SCC 1

(paragraph 13). Just with a view to avoid overburdening the

present order, we deem it proper not to incorporate detailed

observations made by the Hon'ble Apex Court, but sum and

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substance of it is that any transfer made after issuance of

notification is not binding on the Government and purchaser

would not acquire any right, title or interest over the land since

sale itself is non est in the eye of law.

(3) Further, it is settled law that revenue records are not only

meant for fiscal purpose and no ownership or title would be

conferred. In a decision in the case of Jitendra Singh Vs. State of

Madhya Pradesh and others reported in 2021 SCC OnLine 802

this principle is enunciated by the Hon'ble Apex Court and here,

by virtue of this decision also, simply because petitioners'

names is reflecting in the revenue record on that basis, now at

this stage petitioners cannot claim a right over the property on

the basis thereof, more particularly when adjudication about his

title is very much seriously in controversy and pending

adjudication in a substantive suit.

(4) In addition to this, yet another decision which is tried to

be pressed into service is about waiver of rights either expressly

or by necessary implication and when that be so, a person would

not be entitled to any equitable relief. Said decision delivered by

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the Hon'ble Apex Court in the case of Babulal Badriprasad

Varma Vs. Surat Municipal Corporation and others reported in

(2008) 12 SCC 401 (paragraphs 29 & 44 - 49) would suggest

that background of present facts in the form which are narrated

herein-before would clearly indicate that this is not a fit case in

which any equitable relief deserves to be granted.

(5) Apart from this also, there appears to be a delay and

laches on the part of petitioners to claim equitable relief in the

present proceedings. In the instant case, notification under

Section 4 came to be issued way back in 1972 and notification

under Section 6 came to be issued in 1974 and award has also

been passed long back as stated in the pleadings itself and now

after a gross delay of several years, petition is brought in the

year 2017 to claim equitable relief by invoking extraordinary

jurisdiction. When facts would disclose it has a having

chequered history and serious disputed questions of facts and

background of facts would clearly indicating the delay and

laches which would surely come in the way of petitioners

invoking extraordinary jurisdiction. A reference can be made to

few decisions which are reported in (1995) 1 SCC 745

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(paragraph 13) and (2006) 4 SCC 322 (paragraphs 6,9 and 10).

(6) Yet another circumstance which appears to be coming in

the way of petitioners is that petition contains serious disputed

questions of fact not only with regard to possession and with

regard to so-called rights of petitioners pursuant to transaction

which has undisputedly entered into after issuance of

notifications and but also with respect to an issue related to

compensation. When these issues are quite in conflict and

voluminous records also disclosing the fact of land having been

acquired in 1972, as discussed herein-above, we are of the clear

opinion that petition contains seriously disputed questions of

facts which cannot be gone into in exercise of extraordinary and

equitable jurisdiction and for this purpose, we may quite with

benefit two decisions of Hon'ble Apex Court reported in (2015)

2 SCC 145-A (paragraph 15) and 2018(6) SCC 202. Proposition

laid down in the aforesaid decisions are sufficient enough to

indicate that when there are several controversial facts,

extraordinary jurisdiction is not safe to be exercised and we say

so on account of the fact that there is ample evidence on record

to suggest that petitioners have miserably failed to even

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indicate prima facie case about factum of their possession as

well as having not received compensation. Hence, out-rightly

the stand taken by petitioners is not possible to be accepted by

us. We hereby also take note of the situation that this petition

appears to have been filed when petitioners could not secure

interim relief and having realized that in civil proceedings they

will not be able to rent their oars a possible attempt to secure

relief, this petition has been brought, that too at a much belated

stage. This conduct of petitioners is sufficient enough not to

entertain the petition in such a form. Hence, no case is made

out by petitioners calling for our interference.

24. Be that as it may. All these judgments have not been

projected before us in the manner in which it should be, but

emphasis has been made upon decisions reported in ILR 2018

KAR 2144, (2020)4 SCC 572, 2016 SCC OnLine KAR 8215 and

decision of Karnataka at Bengaluru dated 17.10.2017 in W.A.

Nos.2020 of 2017 and 4686 of 1017 and as such we deem it

proper to deal with the same here-under:

(1) First of all, from judgments which has been tendered

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before us, on going through the judgment reported in ILR 2018

KAR 2144, it is quite clear that facts of the present case are

altogether different and said decision will not be of any

assistance to the petitioners. It has been propounded in the said

decision that once acquisition proceedings initiated, it has to be

completed by passing an award and paying compensation

followed by taking over possession within a reasonable period.

Here, as discussed above, decision has already been taken long

back and facts are if to be compared, this decision tried to be

pressed into service is of no assistance to the petitioners as it

was in a different background of facts.

(2) Same is the case with one another decision reported in

(2020)4 SCC 572, wherein also if continuing cause of action is

shocking the judicial conscience of the Court, in that case delay

aspect may not be considered. In fact, here land has already

been vested with authority years ago and to that effect,

voluminous documentary evidence has been tendered and it is

suggesting that not only possession of the land had been taken

but also erstwhile owners were in receipt of compensation

which then led to Section 18 reference and as such background

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of facts in the decision being different, we are not in a position

to stretch the proposition to the peculiar facts of present case.

(3) Further, yet in another decision delivered by Karnataka

High Court at Bengluru reported in 2016 SCC OnLine KAR

8215, on true interpretation of Section 24(2) of 2013 Act, the

Court propounded. But, here as discussed above, there is hardly

any material circumstance which may even have some bearing

from the aforesaid decision. If careful reading of the said

judgment is made, in paragraph 10 it has been clearly indicated

that though final notification in that case was issued way back in

1986, BDA has chosen not to pay any award even till date

though 30 years have elapsed. We are surprised as to why and

how learned advocate for the petitioners has placed reliance

upon this judgment when facts are entirely different.

(4) Similar is the case with one another decision of Karnataka

High Court at Bengaluru dated 17.10.2017 rendered in W.A.

Nos.2020 of 2017 and 4686 of 1017. Here also, additional factor

as mentioned in paragraph 5 that BDA has not taken over

possession of the land in question nor any attempt is made to

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utilize the land for the purpose for which it was acquired and in

that circumstance the Hon'ble Court has opined. Hence, when a

different fact situation is prevailing herein the case on hand, we

are surprised as to why an attempt is made by learned advocate

to misdirect the Court by dumping judgments having different

factual background. It is a cardinal principle that if facts are

different, one additional fact would make a world of difference

in applying the ratio as a president. At this juncture, we are to

refer to the decision of Hon'ble the Apex Court in the case of

State of Madhya Pradesh Vs. Narmada Bachao Andolan

and Another reported in (2011) 7 SCC 639, of which

paragraph 64 reads thus:-

"64. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of Karnataka v. Gowramma and State of Haryana v. Dharam Singh)"

25. From the aforesaid overall discussion and critical analysis

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of facts, we are quite sure that stand taken by petitioners is

impermissible and we have come to conclusion that learned

advocate appearing for petitioners has tried to misguide the

Court by citing so-many decisions which have ex-facie no

applicability and this attempt we deprecate here and we are

constrained to impose appropriate costs for such conduct.

26. Hence, in view of the aforesaid discussion, we are of the

clear opinion that no case is made out to call for any

interference and as such petition being merit-less stands

DISMISSED. Petitioners would be at liberty to work out their