Gujarat High Court

Rambhai Matambhai Bharwad vs State Of Gujarat on 13 January, 2023

Bench: Ashutosh Shastri

     C/SCA/9777/2022                          JUDGMENT DATED: 13/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9777 of 2022

=============================================
                  RAMBHAI MATAMBHAI BHARWAD
                               Versus
                       STATE OF GUJARAT
=============================================
Appearance:
MS NIYATI K SHAH(2935) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 2
=============================================

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

Date : 13/01/2023

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

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

Constitution of India, petitioners have prayed for the following

reliefs :-

"12(A) This Hon'ble Court may kindly be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions in the nature of mandamus declaring that the retention of temporary possession and occupation of the Petitioner's land in question by the respondent no. 2 company for the construction of metro pillars, beyond the period of 28.02.2019 without payment of agreed rent is absolutely illegal, unlawful and without any justification and in any case, this Hon'ble Court be further pleased to declare that despite the fact that possession and occupation of Petitioner's land was retained by the respondent no. 2 company upto 31.12.2019, the further

C/SCA/9777/2022 JUDGMENT DATED: 13/01/2023

payment made only upto 31.05.2019 is without any authority of law and hence the petitioner's are entitled to agreed rent upto 31.12.2019;

This Hon'ble Court may kindly be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions in the nature of mandamus directing the respondent no. 2 company to make the payment at the rate of Rs.1000/- per sq.mtr., per month to the petitioners being unpaid rent for the period from 01.06.2019 to 31.12.2019 for retaining the possession of their land which was temporarily acquired for construction of metro- link pillars;

(B) During the admission, hearing and final disposal of present petition, this Hon'ble Court may be pleased to direct the respondent no. 2 company to deposit with this Hon'ble Court the amount of unpaid rent at the rate of Rs.1000/- per sq.mtrs., per month for the period from 01.06.2019 to 31.12.2019 for retaining the possession of their land which was temporarily acquired for construction of metro-link pillars;

(C ) Hon'ble Court may be pleased to pass any other and further orders of grant of relief as may be deemed fit in the interest of justice."

2. The brief background of the facts is that property bearing

Survey No. 534 of Vadaj Sim, Ahmedabad, admeasuring about 9

Acre 13 Gunthas along with Kharaba land of 2 Acres 36 Gunthas

was originally an agricultural land, totaling around 59,169 Sq.

Yrds. The said land is said to have been purchased by five

owners each one having 1/5th undivided share and the name of

those five sharers are Shri Poonabhai Desabhai, Shri Merabhai

C/SCA/9777/2022 JUDGMENT DATED: 13/01/2023

Hathibhai, Shri Dulabhai Hansrajbhai, Shri Raijeebhai

Harjeebhai and Shri Chhaganbhai Nathabhai. It is the case of

the petitioners that Shri Raijeebhai Harjeebhai sold away his

1/10th share of the said land to one Shri Surabhai Poonabhai

and Shri Matambhai Poonabhai and another 1/10 th share to Shri

Merabhai Hathibhai somewhere in the year 1942. According to

petitioners Shri Poonabhai Desabhai gifted away his 1/5th share

to his sons Surabhai and Matambhai. Shri Matambhai had four

sons, who are present petitioners 1 to 4 and in the same way

Shri Surabhai has two sons namely, Shri Nutanbhai and Shri

Ghanshyambhai, whereas Shri Ghanshyambhai has two sons

namely, Shri Rajulbhai and Shri Chiragbhai who are present

petitioners nos. 5 to 7.

2.1. It is the case of the petitioners that partial partition of the

property had taken place vide three different documents of

partition deed i.e. (1) Partition deed dated 01.10.1975 with

respect to proposed Final Plot No. 287 as per sanctioned draft

town planning scheme no. 28 admeasuring about 6960 Sq.

Mtrs., and upon finalization of town planning scheme, Final Plot

No. 685 was assigned admeasuring around 7433 Sq. Mtrs., and

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(2) registered partnership deed dated 06.10.1975 with respect

to Survey No. 534/p and O.P. No. 187/1 admeasuring around

7495 Sq. Mtrs., representing road area whereas the third

document was with respect to land bearing O.P. No. 187/2,

Final Plot No. 822 (Green Belt Area Land) admeasuring 33,578

Sq. Mtrs., including internal road 6211.59 Sq. Mtrs.. The

petitioners have further asserted that respondent no. 2

Company was inclined to have land of the petitioners for the

purpose of construction of Metro-link and accordingly, the

officers of respondent no. 2 entered into private negotiations

with petitioners along with similarly situated persons in view of

Section 23A of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (hereinafter referred to as the "Act of

2013). The said negotiations took place on 19.12.2017 and the

Minutes of the Meeting were also drawn, duly signed by the

concerned officers and according to the said Minutes of

Meeting, the reserved land belonging to Ahmedabad Municipal

Corporation in Final Plot No. 822 was to be acquired and the

said land was to be given to the land owners of Final Plot No.

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891. Further, in view of clause 2 of the said Minutes, the land

owners were also given the rights exclusively to dwell on the

space between pillars of Metro-link and it was also decided,

according to petitioners that after distribution of land of Plot

No. 822 to the land owners, they would not be entitled to any

kind of compensation for acquiring land admeasuring around

1100 Sq. Mtrs., and according to petitioners, the officers of

respondent no. 1 agreed to pay rent with respect to certain part

of the land whereby Metro pillars were to be constructed. The

soil testing and pile foundation was also commenced and work

of construction of pillars was to be made upto the leveling of

land. According to the petitioners, it was further agreed

between the parties that re-granted plots were properly

earmarked and shall be fenced in proper manner. By relying

upon clause 6 of the said Minutes appropriate compensation

was also promised to the petitioners and similarly situated

persons for the structure on the lands sought to be acquired and

for that clause 7 also has been referred to indicating that entire

land sought to be acquired would be properly valued through

Government Approved Valuer by respondent no. 2 Company and

C/SCA/9777/2022 JUDGMENT DATED: 13/01/2023

after ascertaining the loss of value of land, the said price was

was promised to be paid to the land looser.

2.2. It is further the case of the petitioners that on account of

such non fulfillment of several terms and conditions of the said

Meeting on 19.12.2017, one Mr. Manubhai Sendhabhai

Bharward, one of the co-owners of the land in question has

already filed a petition being Special Civil Application No. 9558

of 2019 which is said to have been pending and the present

petitioners 1 to 5 have filed even Civil Application No. 1 of 2020

for being joined in the said proceedings as they are also joint

owners of the land in question and they have interest in the said

proceedings relating to the land in question and it has been

stated that said Civil Application No. 1 of 2020 is also pending

before the Court.

2.3. The case of the petitioners further travels to the effect that

Chief General Manager of respondent no. 2 Company wrote a

letter dated 28.11.2019 to the project affected persons

indicating that out of the land in question, land admeasuring

1765 Sq. Mtrs., was temporarily acquired by respondent no. 2

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on which Metro Pillar Nos.399 to 405 were required to be put

up and for that purpose respondent no. 2 agreed to pay rent of

Rs.1,000/- per Sq. Mtr., for 13 months commencing from

01.02.2018 to 28.02.2019 and for making such payment to the

petitioners respondent no. 2 Company insisted for indemnity

bonds from the persons to whom such rent was to be paid and

the petitioners nos. 1 to 4 have already submitted their

respective affidavits on 05.11.2019.

2.4. It is further the case of the petitioners that Chief General

Manager of respondent no. 3 Company wrote one another

communication on 05.12.2019 to the project affected persons

intimating that Company was required to deduct Tax at Source

(TDS) from payment of such rent and along with said letter,

cheques were issued after deducting said TDS. For petitioners

nos. 2 to 4 separately cheques were issued to the tune of

Rs.7,74,393/- dated 05.12.2019 drawn on State Bank of India

whereas for petitioner no.1, cheque of Rs.4,74,393/- of the same

date and petitioners nos. 5 to 7 were also paid rent to some

extent of one half of the rents received by the petitioners in

proportion to undivided share in the land in question. Since

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construction of pillar work could not complete till 28.02.2019,

respondent no. 2 Company retained the possession of

petitioners land without payment of any rent for the period

beyond 28.02.2019 and as such, on 28.05.2020 the petitioners

wrote letter to respondent no. 2 indicated that project for

construction of pillar was going on and rent was still not paid

for such extended period. They have also stated in the said

letter that on account of pandemic Covid-19 situation, financial

crunch has taken place and as such, requested to make rent

payment forthwith for the said extended period. Since the said

request was not adhered to, another letter was written on

17.06.2020 reiterating the very stand and later on after some

period of time, respondent no. 2 made payment of Rs.1,83,671/-

to each of the petitioners by way of cheque on 13.10.2020 and

the cheques were drawn on State Bank of India. Since the said

payment was only for the period between March, 2019 and May,

2019, petitioners again made a request that remaining seven

months period rent was supposed to be paid and same having

not been paid, petitioners wrote another letter on 20.11.2020

demanding rent for the period from June 2019 to December

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2019.

2.5. Since the aforesaid request has also not been adhered to,

petitioners gave a notice to respondent no. 2 through their

advocate on 01.04.2022 inter alia indicating that more than two

years and three months have passed since completion of period

of temporary acquisition in December, 2019, yet balance

payment of rent agreed upon has not been received by the

petitioners and therefore, requested to make payment of rent

for seven months' period at Rs.66,188/- per month which comes

to Rs.4,63,816/-. Similarly, petitioners nos. 5 to 7 have also

made such request indicating that total amount payable to them

of outstanding rent of seven months comes to Rs.9,71,538/-. It

has been stated that on account of non payment and on account

of pillars having been constructed and their tea stall and nasta

house business have crumbled down which was going on prior

to temporary acquisition and as such the petitioners being in

dire need have requested to comply with the notice by making

payment as indicated therein.

2.6. The petitioners have stated that despite such repeated

C/SCA/9777/2022 JUDGMENT DATED: 13/01/2023

requests respondent no. 2 authority has not adhered to nor

responded which has constrained the petitioners to rush down

to this Court by way of present petition under Article 226 of the

Constitution of India.

3. On notice being issued by this Court, Mr. Anuj Trivedi

appeared on behalf of respondent no. 2 and has submitted his

reply and since pleadings having been completed both the

learned advocates have requested the Court to take up the

matter for its disposal. Accordingly, in view of such request, we

heard the learned advocates.

4. Ms. Niyati Shah, learned advocate appearing on behalf of

the petitioners has submitted vehemently that on account of

Metro-link pillars being constructed on the land belonging to

the petitioners which have been temporarily acquired, after

initial payment of rent as agreed upon, no further payment has

been made and though repeatedly requested to pay rent of

seven months which remained outstanding, the request has not

been adhered to and as such, this arbitrary act on the part of

the authority may be deprecated by granting reliefs as prayed

C/SCA/9777/2022 JUDGMENT DATED: 13/01/2023

for in the petition. Ms. Shah, has further submitted that it was

specially agreed between the parties that when for the purpose

of laying down construction of pillars, land is being taken under

temporary acquisition and it was greed specifically that rent

would be paid for such period to the petitioners and in past in

furtherance of such agreement, payments have been made as

indicated above and as such, non payment of left out period of

seven months as indicated would be an act of arbitrariness at

the behest of a statutory authority which may be taken note of

and consequentially requested to grant reliefs as prayed for in

the petition.

4.1. Ms. Shah has further submitted that in similar situation,

the co-ordinate Bench has already considered the request of the

concerned petitioners, in which payments have been released by

the respondents and as such, there is no earthly reason for the

respondent not to make payment to the present petitioners and

as such it is an act of discrimination which deserves to be

deprecated. Ms. Shah has submitted that as demanded by the

authority, petitioners have also given indemnity bond as desired

and as such, there is no genuine reason for the respondent

C/SCA/9777/2022 JUDGMENT DATED: 13/01/2023

authority not to make any payment as requested. On the

contrary an agreement was executed in which 13 months period

was already stipulated and despite the fact that for a brief

period payment of rent has been made and then surprisingly,

stopped and beyond the period possession has been retained by

the respondent authority. This action as such requires to be

taken note of for the purpose of grant of relief as prayed for in

the petition. Ms. Shah has further submitted that contract was

already lapsed in February, 2019 and as such, there was a seven

months period rent left to be paid and not at any point of time,

petitioners have resisted the continuance of work for laying

down pillars and as such, petitioners have co-operated with the

authority, there is hardly any reason for the authority to deprive

the petitioners from their legitimate demand in respect of

payment of rent. Hence, by issuing appropriate writ, a request

is made to command the authority to pay rent of left out period

as agreed upon. No further submissions have been made.

5. Mr. Anuj Trivedi, learned advocate appearing on behalf of

contesting respondent no.2 has vehemently opposed petition

and submitted detailed affidavit opposing the stand of the

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petitioners. It has been submitted that there is no agreement

took place with respect to rent of entire period and on the

contrary by applying pressure tactics the work was being

hampered and attempt was made in past to excavate money

from respondent no. 2. Since the work may not suffer in past

when such attempts were made, respondent nos. 2 was

compelled to make some payment, but it was not in connection

with any agreement of rent and as such, only with a view to see

that the work may continue to go on, for the purpose of seeking

co-operation from the petitioners, some amount has been paid,

but that amount may not be construed as part of rent being

agreed. This is seriously disputed fact that rent was agreed

upon to be paid for the period as is demanded. It is in this view

of the matter, present petition is nothing but a measure to

recover the amount which is otherwise not payable. Mr. Trivedi,

after drawing attention to various documents attached to the

affidavit-in-reply, has submitted that this petition at the outset

deserves to be dismissed since several disputed questions of

fact are entangled which may not be possible to be examined or

adjudicated in exercise of extraordinary jurisdiction under

C/SCA/9777/2022 JUDGMENT DATED: 13/01/2023

Article 226 of the Constitution of India and as such, petition

deserves to be dismissed only on that count. Be that as it may.

In that view of the matter, the reliefs prayed for do not

deserves to be granted. Hence, requested to dismiss the

petition.

6. Similar is the stand taken by other respondents i.e.,

learned Assistant Government Pleader appearing for respondent

no. 1 - State and has resisted the petition and requested to

dismiss the same since there are highly disputed questions of

fact which are not possible to be adjudicated in exercise of

extraordinary jurisdiction.

7. Having heard the learned advocates appearing for the

respective parties and having gone through the material on

record, the following circumstances are not possible to be

unnoticed by the Court.

7.1. For the purpose of implementing Metro Rail Project

between Gandhinagar and Ahmedabad a special purpose vehicle

was formed in the form of Metro Link Express from

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Gandhinagar to Ahmedabad (MEGA) Company Limited which

was subsequently named as Gujarat Metro Rail Corporation

Limited. The said Corporation is at present undertaking the

Ahmedabad Rail Project Phase-I, which has two-fold objects; (i)

Providing transportation services to general public at affordable

rate and reducing traffic congestion of the road and this phase-I

comprises with two corridors i.e. East-West Corridor from

Vastral to Thaltej Gam, whereas North-South Corridor from

Motera to APMC. For undertaking this project in several areas,

the authority was to acquire lands and in respect thereto, the

land bearing Survey No. 534, Final Plot No. 891 of town

planning scheme no. 28 Vadaj, Ahmedabad was affected and

this land is undivided land totaling around 20,183 Sq. Mtrs.. Out

of these, in the year 2016, the Corporation required land,

admeasuring 1100 Sq. Mtrs., for putting up viaducts near RTO

circle as a part of construction of North-South corridor of

Ahmedabad Metro Rail Project, Phase-I. The subject land as

stated above is undivided land having 53 project affected

persons being identified as owners of the same and at the

request, the said individuals were divided into families and as

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such, 53 project affected persons comprise of 13 project

affected families. With respect to the subject land requirement

of 1100 Sq. Mtrs., the respondent - Corporation submitted a

request on 23.05.2016 to the Collector, Ahmedabad who in turn

registered a case as Land Acquisition Case No. 2 of 2016 and as

per the procedure, notifications came to be issued under

Section 10A of the Act and Section 11 of Act of 2013 and

simultaneously Section 19(1) notification also came to be

published on 08.08.2018.

7.2. In the meantime, with a view to see that construction of

viaduct of Corporation may not hamper, negotiations took place

in the year 2017 with project affected families and after a series

of meetings, on 19.12.2018, it was agreed between the parties

that the respondent - Corporation would allot 1100 Sq. Mtrs. of

land to project affected families in Final Plot No. 922 in town

planning scheme no. 28. Against the said land to be acquired of

1100 sq.mtrs., the respondent - Corporation agreed to pay

structure costs for kacha and temporary structures existed over

the said subject land and the agreement came to be executed.

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But at this stage, the stand of the authority clearly is that there

was no proposal, no promise to pay compensation in form of

rent to project affected families.

7.3. The stands of the respondent no. 2 - Corporation is also to

the extent that pursuant to the deliberation which took place

actually an amount of Rs.33,37,939/- was paid by way of total

compensation towards structure cost and one time shifting

allowance and also one time grant to earlier traders, 30 project

affected families who had temporary construction on the subject

land and the same was accepted by them without any dispute

and to that effect along with affidavit, Annexure-R4 is the

annexed evidencing the payment by respondent - Corporation.

7.4. Further, the record indicates that on account of some

change in design of construction of viaduct, additional land was

required to the extent of 665 Sq. Mtrs., and as such, total land

comes to 1764 Sq. Mtrs., in Final Plot No. 922 to be allotted to

the project affected families. It is the specific case of the

Corporation that the project affected families have merely

shifted their kacha/ temporary construction of shops one inside

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the plot and continued their commercial activity and at any

point of time their right of way or access to their commercial

activity is hampered. On the contrary, the case of the

Corporation is that the project affected families were

continuously hampering construction work and stopped it on

various occasions on account of which the respondent

Corporation with a view to see that construction activity may

not be delayed or hampered a request was made by the

contractor raising claim about the respondent Corporation vide

communication dated 12.06.2020 and 10.11.2020 for recovery

of idle charges of its labour force and machinery laid at the site

remain unutilized on account of this disruption of project

affected families. A proposal was made to such affected persons

including the petitioners to compensate them in the form of

lump sum rent for using the subject land for a brief period of

01.02.2018 till 28.02.2019. Though there was no provision for

such compensation nor any clause in the agreement, it was in

the best interest decided to pay & see that the work should not

suffer. The expert committee constituted by the Corporation

decided to pay compensation in the form of lump sum rent for

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the said period of 13 months i.e. from 01.02.2018 to 28.02.2019

and this was categorically observed by the committee in view of

the fact that the said period was considering the date on which

the Corporation started using the subject land till declaration of

proposed preliminary scheme of re-constitution of town

planning scheme no. 28A by Ahmedabad Municipal Corporation

whereby the subject land in question would seize to be

ownership of project affected families upon such declaration

and as such, the stand of the Corporation was to the effect that

such lump sum amount was fixed on account of the fact the

work may not suffer and as such upon intimation, 13 project

affected families including the petitioners were requested to

submit their indemnity bonds and upon such submission,

payment was to be made. On the contrary, preliminary town

planning scheme came to be approved by the authority and now

since the certainty would reflect that petitioners are not getting

anything once again, the petitioners started obstructing the

work at the spot and caused hindrance in execution of the

project and as such, once again the authorities were made to

adopt amicable solution since the construction was at advance

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stage and as such, the expert committee once again assembled

and approved the payment of compensation in the form of rent

as submitted for a period of three months i.e. the period in

which the Corporation was permitted to undertake the work of

project affected families and as such three months were

selected as March, 2019, April, 2019 and December, 2019 only

and to that effect a further amount of Rs.52,95,000/- was paid to

13 project affected families including petitioners which they

have accepted by the said 13 families in October, 2020. Later

on, petitioners again started repeating their request for further

period and gave a notice on 01.04.2022 demanding now for a

period of seven months the compensation at the same rate and

as such, a categorical stand was taken by the authority that

this is nothing but clear example of arm-twisting adopted by

project affected families including petitioners and it seems that

under the guise of work being delayed, the authorities have

made the payment in past, now they have come forward again to

demand for seven months further compensation. To project the

unreasonable attitude of the petitioners and the project affected

families in paragraph 6 a categorical sequence of events have

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been mentioned, on account of which now the petition may not

be entertained. We deem it proper to reproduce the same here-

under :-

"6. At this juncture, it is worth considering the unreasonable actions of the petitioners and other PAFs, the advantages accrued to the petitioners and the amounts paid by the respondent Corporation, on the whole:

(i) Since January, 2019, it was known that the subject land which was needed by the Respondent Corporation was going to the reserved with the AMC. Therefore, the petitioners and other PAFs would otherwise have to remove their structures and vacated the subject land as per the town planning scheme, without receiving any compensation whatsoever;

(ii) In spite thereof, the Petitioners and other PAFs were paid structure ousts and shifting allowance and one time grant to small traders to the tune of Rs.33,37,939/- (Rupees Thirty Lakhs Thirty Seven Thousand Nine Hundred an Thirty Nine Only) by the Respondent Corporation;

(iii) The Petitioners and PAFs, did not permit to use the subject land caused obstructions and hindrances, which resulted in complete stoppage of work from May, 2019 to November, 2019 which resulted in delaying the entire metro project, increased the costs thereof and gave rise to claims of crores against the Respondent Corporation from its contractor;

(iv) In spite thereof, the Petitioners and other PAFs were paid compensation in form of rent for a period of 13 months from February, 2018, to February, 2019, totalling to Rs.2,29,45,001/- (Rupees Two Crores Twenty Nine Lakhs Forty Five Thousand and One only);

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(v) Pertinently, the said amount was paid by the Respondent Corporation though there is no provision under the Act for the same and though there was no agreement under which the Respondent Corporation was obligated to pay the said amount;

(vi) Pertinently, the Respondent Corporation had expressly proposed payment only for the months of February, 2018 to February, 2019 and the same was accepted by the petitioners and other PAFs.

(vii) Nowhere is there any promise, undertaking or agreement that the Respondent Corporation was liable to give compensation for more than the said 13 months (February, 2018 to February, 2019);

(viii) All PAFs, including the Petitioners, had indemnified and undertaken that they would not demand and would not be entitled to any further compensation;

(ix) In October, 2020, though the subject land had already been vested in the AMC, on objections of the PAFs, the Respondent Corporation paid amounts towards compensation for 3 months, only for the months in which it was permitted to work, to the tune of Rs.52,95,000/-;

(x) Once again the PAFs, gave an indemnity bond and undertaking that they would not demand and be entitled to any further amounts;

(xi) The Respondent Corporation was under no obligation to pay the same and had paid the amount merely in good faith and in the interest of project works;

(xii) In total, the Respondent Corporation, as of date has paid the petitioners and other PAFs, a total of Rs.3,31,57,239/- (Rupees Three Crore Thirty One Lakh Fifty Seven Thousand Tow Hundred Thirty Nine Only) towards structure costs, shifting allowance, one time

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grant to small traders, payment towards shifting of hoarding and compensation in form of rent), even though the subject land came to be reserved by the AMC and the same was obtained by the Respondent Corporation from the AMC.

(xiii) Pertinently, the Petitioners were obligated to to remove their structures and all hindrances on the subject land and hand over the open land for the construction work. However, the same was also undertaken by the Respondent Corporation.

(xiv) The subject land is situated at the southern end border of the plot and the PAFS, merely shifted on the interior part of the subject land and continued their commercial activities. The PAFs were provided right of way and unhindered access to their commercial kacha/temporary structures. Hence, there was no loss of business to the PAFs.

(xv) Even as of date, the PAFs, including the Petitioners are using the land beneath the metro rail pillars, without any authority, by erecting temporary stalls and encroachments. Herein annexed and marked as Annexure- R16, is the copy of the photographs evidencing the usage of the land by the Petitioners.

(xvi) There was an ongoing agreement between the PAFs, including the Petitioners, and M/s. Chitra Publicity for erecting a permanent hoarding, which had to be removed by the Respondent Corporation at the cost of Rs.11, 47,300/-, which is evidenced by the payment made to M/s.Chitra Publicity Company, herein annexed and marked as Annexure-R17.

(xvii) A high-tension power line of M/s. Torrent Power Limited was passing above the subject land, which was also shifted underground by the Respondent Corporation, at the cost of approximately Rs.5 crores, which in turn also benefited the PAFs, including the Petitioners.

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(xviii) On account of the actions of the Respondent Corporation, the PAFs, including the Petitioners, are also going to get the benefit of the FSI, as and when, any construction is undertaken at the subject land.

(xix) The aforesaid amounts were paid by the Respondent Corporation, in spite of their being disputes pertaining to the ownership, objections of various PAFs against each other and pending proceedings before the Courts.

(xx) At this stage, amongst, 13 PAFs, only the Petitioners, i.e. 2 PAFs, have approached this Hon'ble Court, mala fidely, belatedly and as an afterthought, demanding further compensation, with a view to unjustly enrich itself at the cost of public exchequer."

8. In view of the aforesaid sequence of events, the sum and

substance of the stand of Corporation is that this rent was never

been the subject matter of agreement, was never decided when

the project commenced and the amount substantially have been

paid. Only because of unreasonable attitude of the petitioners,

the authorities have succumbed to their demands at every time

in the interest of work, so that project of public importance may

not be delayed or hampered.

9. An attempt is made by petitioners in rejoinder affidavit to

counter the stand of the respondent - Corporation but when the

facts are seen from such, it is evident that the facts are

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seriously in dispute and in controversy hence we deem it proper

not to adjudicate such disputed questions of fact in exercise of

extraordinary equitable jurisdiction. Whether rent was agreed

upon or not ? Whether rent was payable for a particular period

or not ? and whether the claim for recovery of compensation is

justified or not? are the questions since seriously in dispute

require detail adjudication and as such, we are of the clear

opinion that such controversial facts may not be the subject

matter of exercise of extraordinary jurisdiction in view of the

settled position of law. We are also of the opinion that writ

jurisdiction cannot be exercised for recovery of money

especially entitlement of it is seriously in dispute.

10. At this stage, we may deem it proper to quote hereunder

the principles on exercise of extraordinary jurisdiction in such

circumstances, when facts are in dispute. In the recent past the

Hon'ble Apex Court in the case of Union of India & Ors., v.

Puna Hinda reported in (2021) 10 SCC 690 has clearly

opined that when the disputed questions of facts are involved in

the proceedings, extraordinary jurisdiction may not be the

suitable remedy to be availed of. Since we relied upon the

C/SCA/9777/2022 JUDGMENT DATED: 13/01/2023

observations contained in aforesaid decisions, we may deem it

proper to incorporate said relevant observations here-under :

"24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized. Therefore, in the absence of any acceptance of Joint Survey Report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads."

11. From the aforesaid proposition of law and in view of the

facts which are emerging from the record, we are of the clear

opinion that entertainment of the petition would not be in

consonance with the well settled proposition since the petition

contains seriously disputed questions of fact and as such on this

ground alone, we are not inclined to entertain the petition.

However, we make it clear that this disposal of petition will not

C/SCA/9777/2022 JUDGMENT DATED: 13/01/2023

come in the way of petitioners in ventilating their grievance

before appropriate forum or in any other pending proceedings

or which may be initiated by filing proceedings before the

competent civil court.