Prajapati Parmabhai Hemabhai vs State Of Gujarat
2023 Latest Caselaw 49 Guj

      C/SCA/23026/2022                           ORDER DATED: 03/01/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 23026 of 2022

=============================================
                   PRAJAPATI PARMABHAI HEMABHAI
                                  Versus
                           STATE OF GUJARAT
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Appearance:
MR RAKESH R PATEL(3239) for the Petitioner(s) No.
1,10,11,12,13,13.1,14,14.1,15,16,17,18,19,2,20,21,22,3,4,5,5.1,6,7,8,9
 for the Respondent(s) No. 2,3
MR SAHIL TRIVEDI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                              and
           HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 03/01/2023

ORAL ORDER

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

1. Though matter is listed for admission, by consent of

learned advocates appearing for the parties, it is taken up for

final disposal.

2. We have heard Mr. Rakesh Patel, learned counsel

appearing for the petitioners, Mr. Sahil Trivedi, learned

Assistant Government Pleader appearing for respondents 1 and

2 and Mr. K.M. Antani, accepts notice and waives notice for

respondent 3.

C/SCA/23026/2022 ORDER DATED: 03/01/2023

3. The short point that arises for consideration is :

(i) Whether the award dated 13.03.2014 is sustainable in the eye of law in view of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 coming into force with effect from 01.04.2014.

4. Petitioners are the owners of the respective lands bearing

Survey Nos. 54, 48, 42, 43 paiki, 44 paiki, 45 paiki, 45 paiki, 11

paiki, 4 paiki 5, 6, 403/1, 403/2, 402, 401, 400, 399 paiki, 399

paiki, 279, 280, 281, 284, 254 paiki, 293, 295, 296, 299, 298,

300, 301, 306 paiki, 305, 303, 216 paiki and 215 paiki situated

at Village Nanapura, Taluka Radhanpur, District Patan. The said

lands belonging to petitioners came to be acquired by issuance

of notification dated 30.12.2011 under the Land Acquisition Act,

1894, which was followed by final notification issued on

03.03.2012 and consent award under Section 11(2) came to be

passed i.e. subsequent to 2013 Act coming into force w.e.f.

01.04.2014.

5. It is the contention of Mr. Rakesh Patel, learned counsel

C/SCA/23026/2022 ORDER DATED: 03/01/2023

appearing for the petitioners that award has been passed

subsequent to coming to force Act of 2013 and Section 24(1) Act

of 2014 would be attracted, as a consequence of which award

passed under Section 11 has to be set aside and prays for a

direction being issued to the respondents to pass fresh awards

in accordance with law namely under the provisions of Act of

2013.

6. Per contra, Mr. Sahil Trivedi, learned Assistant

Government Pleader appearing for the respondents would

support the impugned order and has contend that same has

been passed by consent and as such, he prays for dismissal of

this petition. Similar issue having been considered by this Court

in Special Civil Application No. 3889 of 2022 by order dated

28.07.2022 it came to be held as under :-

"7. Having heard the learned advocates appearing for parties and on perusal of Section 24 of the Act, it would emerge therefrom that sub-section (1) contains two parts namely Clause (a) and Clause (b). Clause (a) would indicate that where no award under Section 11 of the old Act has been made, the provisions of the new Act would be applicable for determination of compensation; Clause (b) would mandate that where an award under Section 11 has been made, then the proceedings would continue under the provisions of the old Act. In the present situation, namely on the facts on hand, it would indicate that pursuant to the Notification dated 29.05.2013, the award

C/SCA/23026/2022 ORDER DATED: 03/01/2023

came to be passed on 31.01.2014 and 15.01.2014 respectively i.e. after the new Act coming into force on 01.01.2014. Thus, the awards passed under the old Act, after the new Act having coming into force would have no legs to stand. In other words by the time, the awards in question came to be passed i.e. on 31.01.2014 and 15.01.2014, the new Act of 2013 had already come into force. Therefore, in terms of Clause (a) of sub-section (1) of Section 24, award under the provisions of the new Act were required to be passed. Hence, awards passed under the old Act would have to make way for award being passed under new Act.

8. Insofar as the date of awards above referred to are concerned, the learned AGP would not dispute this fact. Though, he has contended that impugned awards are passed by consent, we are of the considered view that consent cannot confer the jurisdiction on statutory authority to pass an award contrary to the provisions of the Statute. Clause (a) of sub-section (1) of Section 24 being clear and unambiguous namely to the effect that on coming into force the provisions of new Act and awards if having not been passed under the old Act, the award will have to be passed under Act 2013. In respect of subject lands, for which, the acquisition proceedings had been commenced under old Act, award came to be passed after new Act came into force. The only option which was available to the authorities is to pass awards under the new Act. Hence, the impugned awards cannot be sustained. "

7. In the instant case, undisputedly, awards having been

passed on 13.03.2014, the proposition laid down by this Court

in the aforesaid judgment would be squarely applicable to the

facts on hand. In other words, point formulated herein-above

deserves to be answered in favour of petitioners and against the

C/SCA/23026/2022 ORDER DATED: 03/01/2023

respondent - State.

8. Hence, we proceed to pass the following

:OR DER:

(1) Special Civil Application is allowed.

(2) The award dated 13.03.2014 (Annexure-A) is hereby quashed and respondent no. 2 is directed to pass fresh award under the provisions of Act of 2013 in respect of said lands belonging to petitioners expeditiously and at any rate within an outer limit of three (3) months from the date of receipt of copy of this order.

(3) It is made clear that compensation having been paid pursuant to the award passed under Section 11 of the old Act, shall be retained by the petitioners and said amount shall be given set off at the time of passing fresh awards under the provisions of Act of 2013 and petitioners would not be entitled to interest for the period from 13.03.2014 till 17.10.2022 (date of filing of this Special Civil Application).

(4) No order as to costs.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) phalguni