Pannalal Dahyabhai Patel vs State Of Gujarat
2023 Latest Caselaw 2093 Guj

     C/SCA/134/2022                              JUDGMENT DATED: 06/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 134 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI

and
HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      PANNALAL DAHYABHAI PATEL
                                Versus
                          STATE OF GUJARAT
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Appearance:
KUSHAL A DESAI(9435) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MS.SHRUNJAL SHAH, AGP for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
          JUSTICE A.J.DESAI
          and
          HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 06/03/2023

                      ORAL JUDGMENT

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)

C/SCA/134/2022 JUDGMENT DATED: 06/03/2023

1. RULE returnable forthwith. Ms.Shrunjal Shah

learned AGP waives service of notice of Rule on

behalf of the respondent State.

2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

3. By way of the present petition under Articles 14,

19, 21 and 226 of the Constitution of India,

following prayers have been made:

"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus/certiorari or a writ in the nature of mandamus/certiorari and/or any other appropriate writ, order or directions quashing and setting aside the order dated 27.9.2021 passed by Special Land Acquisition Officer below application of the petitioner preferred under Section Exh.28-A of the Land Acquisition Act (Annexure I to the present petition) and be pleased to allow the said application preferred by the petitioner under Section 28-A of the Act in the interest of justice;

(B) Pass any such other and/or furtehr orders that may be thought just and

C/SCA/134/2022 JUDGMENT DATED: 06/03/2023

proper, in the facts and circumstances of the present case."

4. In response to notice issued by this Court, the

respondent authorities have appeared through

learned AGP.

5. No affidavit has been filed on behalf of the

respondents.

6. Brief facts are as under.

7. That the father of the petitioner viz. Dahyabhai

Patel was the owner of land situated at land

bearing survey nos.616 and 617 admeasuring 00-

09-39 and 00-25-85 Hectare-RA-Sq.Mtrs. of

Village:Matheli, Taluka:Vaghodiya, District:

Vadodara.

8. The process under the Land Acquisition Act was

initiated by the respondent authority for the

purposes of Narmada Canal. An award was

C/SCA/134/2022 JUDGMENT DATED: 06/03/2023

passed by the Collector on 30.07.1997. As per

the award, name of the father of the petitioner

was shown as the owner of the aforesaid lands.

9. The other land owners covered under the said

award preferred Land Reference Case under

Section 18 of the Land Reference Act and

ultimately the amount was awarded by the

Collector.

10.Subsequent thereto, the present petitioner filed

an application under Section 28(A) of the Land

Acquisition Act seeking same amount of

compensation awarded by the Reference Court,

which was denied by the authority on the ground

that the revenue entry has been made in the year

1993 wherein name of other family members viz.

Ramanbhai was also included. Hence, this

petition.

C/SCA/134/2022 JUDGMENT DATED: 06/03/2023

11. Learned advocate Mr.S.P.Majmudar for the

petitioner would submit that it is an undisputed

fact that the land in dispute was owned by the

father of the petitioner Dahyabhai. By the family

arrangement, brother of the deceased Dahyabhai

was mutated in the year 1993, however, as per

the order, the amount was of compensation was

awarded to the father of the petitioner which

was declared on 30.07.1997. He would submit

that therefore the authority ought not to have

rejected the application filed by the present

petitioner under Section 28(A) subsequent to

demise of his father.

12. Apart from this aspect, he would submit that the

legal heirs of Ramanbhai have executed an

agreement in favour of the petitioner, by which,

they had declared that if the amount as prayed

for by the petitioner under Section 28(A) of the

C/SCA/134/2022 JUDGMENT DATED: 06/03/2023

Land Acquisition Act be granted to the present

petitioner, they have no objection. The said

agreement has been notarized on 24.08.2020

and therefore also, he would submit that the

petition be allowed.

13. On the other hand, learned AGP has opposed the

present petition.

14. We have heard learned advocates for the

respective parties. It is an undisputed fact that

the award which was declared on 30.07.1997,

the land in question was declared of the

ownership of Dahyabhai - who happens to be the

father of the present petitioner.

15. Subsequent thereto other land owners had

preferred an application under Section 18 of the

Land Acquisition Act which was allowed by the

Reference Court. Therefore, as provided under

C/SCA/134/2022 JUDGMENT DATED: 06/03/2023

Section 28(A) of the Land Acquisition Act, the

petitioner has approached the higher forum

which was rejected mainly on the ground that an

entry was mutated in the name of Ramanbhai

who happens to be the brother of Dahyabhai,

way back in the year 1993.

16. Apart from this aspect, it is also pertinent to note

that legal heirs of Ramanbhai have made a

declaration in form of an agreement with the

present petitioner having no objection if the

amount is paid.

17. Hence, we are of the opinion that the petition

requires consideration and hence, the petition is

hereby allowed. The order dated 27.09.2021

passed by Special Land Acquisition Officer below

application of the petitioner preferred under

Section 28(A) of the Land Acquisition Act is

hereby quashed and set aside.

C/SCA/134/2022 JUDGMENT DATED: 06/03/2023

18. The respondent authority i.e. Special Land

Acquisition Officer, Narmada Yojna, Vadodara -

respondent no.2, is hereby directed to disburse

the amount after verifying the contents of

affidavit in the nature of agreement entered into

between the present petitioner and legal heirs of

Ramanbhai and this exercise shall be done after

proper verification. This entire exercise shall be

carried out within a period of three months from

the date of receipt of copy of this order.

19. Petition is allowed accordingly. Rule is made

absolute accordingly. Direct service is

permitted.

(A.J.DESAI, ACJ)

(BIREN VAISHNAV, J) ANKIT SHAH