Girish Ratilal (Halani) Thakkar ... vs State Of Gujarat
2023 Latest Caselaw 338 Guj

 C/SCA/5053/2022                               CAV JUDGMENT DATED: 12/01/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 5053 of 2022

                                  With

 CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of 2022
         In R/SPECIAL CIVIL APPLICATION NO. 5053 of 2022

==================================================

GIRISH RATILAL (HALANI) THAKKAR FOR HIMSELF AND AS POA OF RAKESHKUMAR NATVARLAL THAKKAR Versus STATE OF GUJARAT ================================================== Appearance:

MR.K.M.ANTANI, AGP for the Respondent(s) No. 1 MR. ALKESH N SHAH(3749) for the Respondent(s) No. 4 RULE SERVED for the Respondent(s) No. 2,3 ==================================================

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

Date : 12/01/2023

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

[1] Petitioner has sought for the following reliefs:

"26B. YOUR LORDSHIPS be pleased to quash and set aside the Land Acquisition Award dated 04.12.2020 passed by Respondent No.2 in relation to Case No.22/2019 regarding village Bitavaladia (West), Ta. Anjar, Dist. Kutch;

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C. YOUR LORDSHIPS be pleased to declare the land acquisition proceedings being Land Acquisition Case No.22/2019 to be illegal and unconstitutional and YOUR LORDSHIPS be further pleased to quash and set aside the same;"

[2] Petitioner who claims to be the owner and occupier of

land Survey No.190 of Village: Bitavaladia (West), Taluka: Anjar,

District: Kutch, admeasuring Hector-Aare-Sq.Mt.1-02-00 i.e.

10,200 sq.mtrs., out of which the area of about 2612 sq.mtrs.

has been acquired, has challenged the award passed and has

sought for quashing the said award. For the purpose of

alignment of Nagavaladiya Distributory of Kutch Branch Canal,

requisition for land acquisition came to be moved by the

Executive Engineer for distributory to supply water. On

5.8.2019, the State Government exempted the project under

Section 10A of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 ('the Act' for short) exempting the

project from Chapter II and III of the Act.

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[3] Pursuant to the same, a preliminary notification under

Section 11(1) of the Act came to be issued on 16.10.2019

(Annexure-F) by the Additional Collector, Narmada inviting

objections from interest persons. The Special Land Acquisition

Officer forwarded a communication giving details of the date of

personal hearing. The notification under Section 19(1) issued on

16.10.2019 was published in local newspaper on 20.02.2020.

Petitioner forwarded his objection on 20.03.2020 and personal

hearing was fixed before the Collector as required under

Section 21(2) of the Act on 10.6.2020. On 14.9.2020, petitioner

is said to have forwarded representation to respondent Nos.1 to

3 pointing out division of the land in two parts contending

thereunder that such acquisition could result in inconvenience

being caused to the petitioner for usage of the land as it would

be split into two parts amongst other grounds raised therein.

On 04.12.2021, an award came to be passed. Hence, this writ

application is filed for quashing of the acquisition proceedings.

[4] We have heard arguments of Mr. N.M. Kapadia, learned

advocate appearing for the petitioner and Mr. K.M. Antani,

learned AGP appearing for the State. Perused the case papers.

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[5] It is the contention of Mr. N. M. Kapadia, learned advocate

appearing for the petitioner that procedure to publish

notification under Section 19 and Rule 21 and 23 of the Gujarat

Rules, 2017 has not been followed fully and petitioner was not

made known of the preliminary notification and thereby, it has

affected the valuable right of the petitioner to file effective

objections, he would also contend that even after publication of

the notification in the newspaper to which petitioner filed

objections, no notice of personal hearing was issued. He has

further submitted that the notice issued under Section 21 was

not served on the petitioner as required though respondent

authorities knew the full address of the petitioner. He also

contend that date of personal hearing fixed was to be given at

least 30 days' notice from the date of public notice, i.e. on

27.05.2020, however, the personal hearing was fixed on

10.06.2020. Mr. Kapadia, learned advocate appearing for the

petitioner would rely upon the communication dated 11.6.2020

of the Special Land Acquisition Officer addressed to the

Executive Engineer to hold inquiry and to submit report which

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has not been done. He would also contend that on

27/31.07.2020, a communication was issued by the office of the

Land Acquisition Officer addressed to the Deputy Director of

Information to issue public notice under Section 21 regarding

survey numbers of other parties who could not be served with

the notice of hearing and such procedure was not undertaken

qua the land of the petitioner. He would contend that on

14.09.2020, a detailed representation was forwarded by the

petitioner pointing out that land of petitioner would be divided

into two parts which would render the land to be unproductive,

adversely affecting the fertility of land and also no urgency of

acquisition due to non-construction of earlier part of

distributory canal. Contending that the acquisition was contrary

to the established procedure and provisions of the Act have

completely given a go bye as such petitioner had submitted

representation which in turn resulted in the Special Land

Acquisition Officer informing the Executive Engineer to hold

inquiry regarding objections of the petitioner and to submit

report which appears to have not been done and as such the

acquisition proceedings are liable to be quashed including the

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award in question. He would also draw the attention of the

Court to the map to contend that alignment of the lands

proposed to be acquired has been changed for favouring the

owners of other Survey Nos.110 to 112, 192 to 195, 255, 258

which would have reduced the length of acquisition and

unnecessary long distributory is proposed raising the cost of the

project and without considering these aspects, acquisition

proceedings came to be proceeded with. Hence, he has prayed

for grant of prayers sought for in the application.

[6] Per contra, Mr. K. M. Antani, learned Assistant

Government Pleader appearing for the State would support the

acquisition proceedings by contending that even if there is

deficiency in the service of notice, the acquisition proceedings

whould not get vitiated. It has been contended on the basis of

relevant record that it is not the case that petitioner and

affected persons were completely unaware about facts. This

petition is brought by power of attorney holder who probably

might not have been properly briefed. In fact, there is clear

reference in the order dated 04.12.2020 that proper publication

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has been made in the local daily newspaper, namely, Divya

Bhaskar as well Kutch Uday on 04.09.2019 in addition to the

Government Gazette on 26.08.2019 about publication of Section

10(A) notification. Further preliminary notification issued under

Section 11(1) of the Act dated 16.10.2019 has also been

published not only in Government Gazette on 21.10.2019, but

also in the local daily newspaper that is Aajkaal newspaper on

05.11.2019 as well as in Divya Bhaskar. In addition to it, there

was also a publication at site on 11.11.2019 and final

publication was also made on that day and in addition to it, the

publication on website has also been made on 21.10.2019. Mr.

Antani, learned Assistant Government Pleader has further

submitted that about Section 19(1), final notification under the

Act was also Gazetted in the Government publication on

29.02.2020 and additionally also in daily newspaper on

18.03.2020 in Sandesh newspaper as well as Kutch Uday

newspaper. Additionally, even a publication at site was also

given effect on 05.03.2020 and final publication was made on

05.05.2020 on site and further the publication on website was

also made on 29.02.2020.

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[7] Insofar as hearing under Sections 21(1) and 21(2) are

concerned, the matter was kept on 10.05.2020 and there was

also hearing held as prescribed. During the course of hearing,

no objection was filed by the land holders and after considering

all other relevant documents and having found that qua land

under acquisition there are no fragments, the process has been

undertaken. In the present case, it has been pointed out that

acquisition proceedings has taken place by private negotiations

with the interested parties directly and possession of the land

was taken in anticipation, which fact is also not in dispute.

According to learned Assistant Government Pleader there is

neither any irregularity nor any infirmity and it clearly reflects

that there is substantial compliance in passing of the impugned

specific award on 04.12.2020 and as such in the absence of any

such infirmity or irregularity of any nature, there is hardly any

reason for petitioner to vent his grievance about the land

acquisition and award passed thereunder and seek for exercise

of extraordinary jurisdiction by this Court. To canvass his

submission, Mr. Antani, learned Assistant Government Pleader

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has drawn the attention to various documents at page 104, 110/

A as well as at page 104 A and also on page 113, a public notice

about the hearing which has been fixed. Hence, when that be

so, according to learned Assistant Government Pleader, no case

is made out to invoke extraordinary jurisdiction of this Court.

Hence, contention raised by the learned advocates are not

worthy of acceptance and contends petition deserves to be

dismissed.

[8] Having heard the learned advocates appearing for the

parties and having gone through the material on record before

dealing with the contention raised by the petitioner, this Court

deems it proper to postulate certain well settled proposition of

law propounded by the Hon'ble Apex Court.

[9] In case of Vijay and Ors. versus The State of

Maharashtra and Ors., [MANU/MH/2309/2022], it has been

propounded that if there is any substantial compliance with

regard to the procedure under Section 21, the award cannot be

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rendered as illegal. The relevant observations contained therein

are reproduced hereunder:-

"73. The issue can also be examined from a different perspective. This different angle is provided by a question

- whether the scheme of the LA Act of 2013 is such that it causes any prejudicial consequences in case the notice under Section 21(4) of the said Act is not served upon the persons interested? This very question arose in the case of May George (supra), although the provision under consideration was Section 9(3) of the LA Act of 1894. Section 21(4) of the LA Act of 2013, we must say, is in pari materia with Section 9(3) of the LA Act of 1894 and, therefore, the answer provided by the Supreme Court in May George case would also apply to the question posed by us in these petitions. While answering the question, the Supreme Court considered the settled legal position and found that a provision would be mandatory only when its non-compliance could render the entire proceedings invalid or otherwise the provision would be directory. The Supreme Court then went on to answer the question thus :

"26. The instant case is required to be examined in the light of the aforesaid settled legal provision. In fact, failure of issuance of notice under Section 9(3) would not adversely affect the subsequent proceedings including the award and title of the Government in the acquired land. So far as the person interested is concerned, he is entitled only to receive the compensation and therefore, there may

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be a large number of disputes regarding the apportionment of the compensation. In such an eventuality, he may approach the Collector to make a reference to the Court under Section 30 of the Act."

It should be clear now that non-compliance with Section 21(4) of the LA Act of 2013, which is in pari materia with Section 9(3) of the LA Act of 1894, would not adversely affect the subsequent proceedings, including the award of compensation and title of the Government in the acquired land, for the reason that the person interested is entitled only to receive the compensation and other benefits, if available. If he has any grievance about non-receipt of compensation and other benefits, if any, he may approach the Collector to make a reference to the competent authority under Section 64 of the LA Act of 2013. Thus, we find that Section 21(4) and consequently Section 22 of the LA Act of 2013, are the provisions which could not be said to be mandatory. Rather, they are directory in nature. Therefore, non-compliance with the provisions of Sections 21(4) and 22 of the LA Act of 2013 here, we find, has not rendered the impugned declarations and impugned award as illegal.

74. There is also an objection that public notice issued here is not in full compliance with sub-sections (1) and (2) of Section 21 of the LA Act of 2013. However, on a careful consideration of the material placed on record by the respondent-authorities, we are satisfied that there is substantial compliance with sub-sections (1) and (2) of Section 21 and as such, we find no substance in the objection."

C/SCA/5053/2022 CAV JUDGMENT DATED: 12/01/2023

[10] Further in case of Nasik Municipal Corporation versus

Harbanslal Laikwant Rajpal & Ors. reported in (1997) 4

SCC 199, the Hon'ble Apex Court has held that in the absence

of any notice or failure to serve the notice, the award does not

become invalid. Following are the relevant observations which

deserves to be reproduced hereunder:-

"5. It is then contended by Mr. U.R. Lalit, that the respondents had not been given the information of the notification under Section 9 of the Land Acquisition Act. Therefore the award is bad in law. We find force in the contention. In absence of notice or failure to serve notice, the award does not become invalid. Due to the fact that immediately after the award and before the publication of the award, the writ petition came to be filed on 25.09.1980, we direct the appellants to make an application within six weeks under Section 18(1) of the Land Acquisition Act, seeking reference. The Land Acquisition Office is directed to refer the matter to the competent civil court for disposal within two months according to law."

[11] Yet in another decision which is in the case of State of T.

N. & Anr. versus Mahalakshmi Ammal & Ors. reported in

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(1996) 7 SCC 269, it has been observed that irregularity in

service of notice is curable and on that basis award passed by

the Collector cannot be held to be invalid.

[12] In the case of May George versus Special Tahsildar &

Ors., reported in (2010) 13 SCC 98, Hon'ble Apex Court has

propounded that once land is vested in the State, it cannot be

divested even if there has been some irregularity in acquisition

proceedings. The Hon'ble Apex Court has proceeded to hold

that in spite of non service of Section 9 Notice the person

interested at the best can claim compensation but non

compliance would not be fatal to acquisition. Following are the

observes needs to be quoted hereunder:-

"15. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.

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16. In Dattatraya Moreshwar Vs. The State of Bombay & Ors., AIR 1952 SC 181, this Court observed that law which creates public duties is directory but if it confers private rights it is mandatory. Relevant passage from this judgment is quoted below:-

"7. ....... It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done."

17. A Constitution Bench of this Court in State of U.P. & Ors. Vs. Babu Ram Upadhya AIR 1961 SC 751, decided the issue observing :-

"28. For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is

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not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."

18. In Raza Buland Sugar Co. Ltd., Rampur Vs. Municipal Board, Rampur AIR 1965 SC 895; and State of Mysore Vs. V.K. Kangan, AIR 1975 SC 2190, this Court held that as to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law- maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other.

26. The instant case is required to be examined in the light of the aforesaid settled legal provision. In fact, failure of issuance of notice under section 9(3) would not adversely affect the subsequent proceedings including the Award and title of the government in the acquired land. So far as the person interested is concerned, he is entitled only to receive the compensation and therefore, there may be a large number of disputes regarding the apportionment of the compensation. In such an eventuality, he may approach the Collector to make a reference to the Court under section 30 of the Act.

28. In fact, the land vest in the State free from all encumbrances when possession is taken under section 16 of the Act. Once land is vested in the State, it cannot be divested even if there has been some irregularity in the acquisition proceedings. In spite of the fact that Section 9 Notice had not been served upon the person- interested,

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he could still claim the compensation and ask for making the reference under section 18 of the Act. There is nothing in the Act to show that non-compliance therewith will be fatal or visit any penalty."

[13] In the case of J & K Housing Board & Anr. versus

Kunwar Sanjay Krishan Kaul & Ors. reported in (2011) 10

SCC 714 wherein after referring to earlier case of May

George's, almost same principle is reiterated and concluded as

under:-

" In the above paragraph, one of us. Dr. B. S. Chauhan, J, has summarised the law as to declare a provision mandatory or not and the test to be applied being whether non-compliance with the provisions could render the entire proceedings invalid or not. Except the above proposition of law with which we are in entire agreement, the said decision is also not supporting the stand of the appellants."

[14] In respect of the contention raised by the learned advocate

appearing for the petitioner, we deem it necessary to refer to

yet another principle that after vesting of the land in the State,

the owners of the land have no right to challenge the

notification and as such following are the observations needs to

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be referred to which is in case of C. Padma & Ors. versus Dy.

Secretary to the Govt. of T. N., and Ors. reported in (1997)

2 SCC 627, the Hon'ble Apex Court has held that:-

"Acquired land having vested in the State and compensation paid to the claimants and thereto, in respect of restitution of possession on the ground that either original public purpose had ceased to be in operation or any other alternate ground. It has been further held that after vesting of the land in the State pursuant to the acquisition the land owners have no right to challenge the notification."

[15] This principle has been reiterated in a subsequent decision

of Municipal Council, Ahmednagar & Anr. versus Shah

Beig & Ors., reported in (2000) 2 SCC 48 wherein the

observation contained in paragraph 17 are relevant. Hence, we

deem it proper to reproduce hereunder:-

"17.In any event; after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of recent cases (C. Padma & Ors. v. Dy Secretary to the Govt of T.N. & Ors, reported in [1997] 2 SCC 627. This court observed as below:-

"4. The admitted position is that pursuant to the

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notification published under Section 4(1) of the Land Acquisition Act, 1894 (for short "the Act") in GOR No. 1392 Industries dated 17.10.1962, total extent of 6 areas 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasiua by Tvl. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 10.4.1964. Pursuant to the agreement executed by the company, it was handed over to Tvl, Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd, It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs No. 816. Industries dated 24.3.1971 in favour of another subsidiary company, Shri Rama Vilas Service Ltd., the 5th respondent Which is also another subsidiary of the company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement in GOMs No. 439 Industries dated 10.5.1985. In GOMs 546 Industries dated 30.3.86, the same came to be approved of. Then the appellants challenged the original GOMs No. 1392 Industries dated 17.10.62 contending that since the Original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of compensation by the predecessor-in-title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed."

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[16] In the context of aforesaid observations, when we have

examined the record of the present case, we are satisfied that

there is a substantial compliance of the procedure prescribed

under the Act of 2013 and the contentions raised by the learned

advocates are not worthy of acceptance. In fact, the conjoint

effect of the aforesaid discussion vis-a-vis the relevant

documents as referred to above, we are of the opinion that when

there appears to be no serious infirmity of any nature in the

award passed by the authority dated 04.12.2020 and it requires

no interference. Accordingly petition being devoid of merit,

stands dismissed.

[17] At this stage, we are also of the opinion that if petitioner is

aggrieved by the said award in question, the remedy available

under the law and known to the petitioner may be availed of and

the disposal of this petition would not come in the way of

petitioner in such challenge if so desire.

[18] In the context of aforesaid material on record and the

submissions having been considered, the judgments which are

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cited by the learned advocate are of no assistance and the

decision which has been tried to be pressed into service on the

issue of delegation of power, we are of the opinion that no case

is made out by the petitioner to accept such contentions. In

fact, time and again, we have observed that opportunity has

been given by publishing at various stages and the land owners

are not taken by surprise in any manner. In fact, the date of

hearing was also publicly intimated and as such it cannot be

said that land owners are deprived of their legitimate right in

any form, on the contrary there appears to be a substantial

compliance. Further, petition according to us is also raising

seriously disputed questions of fact on the issue raised by the

learned advocate and as such, in view of the law laid down by

the Hon'blw Apex Court in the case of State of Assam versus

Bhaskar Jyoti Sarma and others reported in (2015) 5 SCC

321, we are of the opinion that such disputed questions cannot

form the subject matter of exercise of extraordinary jurisdiction.

A reference can be made to paragraphs 13 and 19 of said

judgment. Hence, on the basis of such observations, we are of

the opinion that this is not a fit case in which we may exercise

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extraordinary jurisdiction. The record is sufficiently reflecting

that there is substantial compliance that cannot be said to be

any unilateral exercise while passing the award mandate of the

statute to a substantial extent has been taken care of by an

authority. Hence, this is not a fit case in which extraordinary

equitable jurisdiction deserves to be exercised.

[19] The record is self explanatory to its contents, hence, we

deem it proper not to entertain the petition. Accordingly, same

is dismissed with no order as to cost. Rule is discharged.

[20] In view of disposal of the main petition, Civil Application

No.2 of 2022 stand consigned to records accordingly.

Sd/-

(ARAVIND KUMAR, C.J.)

Sd/-

(ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR