Gujarat High Court
Malubhai Manabhai Solanki ... vs State Of Gujarat on 20 March, 2023
Bench: Biren Vaishnav
C/SCA/18905/2019 ORDER DATED: 20/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18905 of 2019
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MALUBHAI MANABHAI SOLANKI (CHAVDA)
Versus
STATE OF GUJARAT
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Appearance:
MR BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, ASSTT. GOVERNMENT PLEADER 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 : 20/03/2023
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)
[1.0] RULE. Learned Assistant Government Pleader waives
service of notice of Rule on behalf of the respondents.
[2.0] By way of present petition under Articles 14, 19(1)(g), 21,
226 and 300A of the Constitution of India, the petitioner has
prayed for the following relief:
"(B) YOUR LORDSHIPS may further be pleased to issue a
writ of mandamus or any other appropriate writ, order of
direction in the nature of mandamus and be pleased to
quash and set aside the impugned Order dated
25/29.06.2019 passed by the respondent no.2 (ANNEXURE
"A") and be pleased to allow the application dated
19.04.2018 (ANNEXURE "B") as originally prayed for;"
[3.0] The short facts arising from the record of the case are as
C/SCA/18905/2019 ORDER DATED: 20/03/2023
follows:
[3.1] That, a portion of land i.e. 0-27-96 Sq. Meter from the land
bearing survey No.387 (New Survey No.393) of Mouje Varmor,
Taluka Mandal, District Ahmedabad (hereinafter referred to as
"land in question") came to be acquired by respondent No.2 for
laying down Narmada Canal. That, for the said acquisition,
notification under Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as "Act of 1894") came to be issued on
05.11.2009 and notification under Section 6 of the Act of 1894
came to be issued on 21.12.2010. That, thereafter, award dated
17.08.2012 came to be passed by respondent No.2.
[3.2] That, being aggrieved with the said award dated
17.08.2012, some of the land owners preferred reference under
Section 18 of the Act of 1894 before the learned Principal Senior
Civil Judge and Special Judge (LAQ), Narmada Yojna, at Mirzapur,
Ahmedabad (Rural) viz. Land Acquisition Reference Case Nos.4, 5
and 7 of 2013. That, the learned Reference Court vide judgment
and award dated 03.03.2018 passed judgment and award as per
the compromise arrived at between the parties and enhanced
the compensation.
[3.3] The petitioner herein having come to know about passing
of award by the learned Reference Court in the references filed
at the instance of other land owners, filed an application dated
19.04.2018 under Section 28A of the Act of 1894 before
respondent No.2 and requested to grant enhanced compensation
equal to the compensation awarded by the learned Reference
Court. That, though the land in question was sold to one
C/SCA/18905/2019 ORDER DATED: 20/03/2023
Jagdishbhai Govindbhai Pavra through registered sale deed on
21.05.2010 and even the notice under Section 12(2) of the Act of
1894 was also issued in the name of present petitioner,
respondent No.2 did not accept the application of the present
petitioner and rejected the said application vide the impugned
order dated 25/29.06.2019.
Hence, present petition.
[4.0] Learned advocate Mr. Bhaumik Dholariya appearing for the
petitioner would submit that the land in question was sold to one
Jagdishbhai Govindbhai Pavra through a registered sale deed on
21.05.2010 and accordingly, name of said Jagdishbhai Govindbhai
Pavra was mutated in the revenue record. Thereafter, as per the
mutual understanding between the petitioner and the purchaser,
it was decided that whatever compensation would be available
under Section 28-A of the Act of 1894, the present petitioner
would be entitled for the same and therefore, application under
Section 28-A of the Act of 1894 was filed before respondent
No.2. He would submit that all these aspects have not been
properly considered by respondent No.2 while passing the
impugned order.
[4.1] Mr. Dholariya appearing for the petitioner would further
submit that even the fact that the petitioner will be entitled to
get the enhanced amount of compensation under Section 28-A of
the Act of 1894 has been specifically stated on page No.8 of the
sale deed dated 21.05.2010. He, therefore, would submit that the
petition be allowed.
[5.0] On the other hand, learned AGP Mr. Utkarsh Sharma
C/SCA/18905/2019 ORDER DATED: 20/03/2023
appearing for the respondents has opposed the present petition
and would submit that respondent No.2 rejected the application
under Section 28-A of the Act of 1894 on the ground that name
of another person i.e. the purchaser of the land in question has
been mutated in the revenue record. He, therefore, would submit
that the petition be dismissed.
[6.0] We have heard learned advocates appearing for the
respective parties at length.
[7.0] In the present proceeding, notice was issued way back on
22.10.2019 however, no affidavit in reply is filed till date.
[8.0] It is true that the sale deed concerning the land in question
was executed by the present petitioner in favor of one
Jagdishbhai Govindbhai Pavra however, as per mutual
understanding between the petitioner and the purchaser it was
recorded even on page No.8 of the sale deed dated 21.05.2010
that the petitioner will get the enhanced amount of
compensation. Even the said purchaser i.e. Jagdishbhai
Govindbhai Pavra has filed an affidavit in the present proceeding
on 11.09.2019 stating that the petitioner will be entitled for the
enhanced amount of compensation and that he has no objection
if the said amount is paid to the present petitioner.
[8.1] Considering the aforesaid aspects, we are of the opinion
that present petition requires consideration.
[9.0] In view of above discussion, present petition is allowed.
Impugned order dated 25/29.06.2019 passed by respondent No.2
is hereby quashed and set aside. Respondent No.2 is hereby
C/SCA/18905/2019 ORDER DATED: 20/03/2023
directed to afresh decide the application under Section 28-A of
the Act of 1894 filed by the petitioner within a period of four
weeks from the receipt of present order keeping in mind the
observations made by this Court. Rule is made absolute
accordingly.
(A.J. DESAI, ACJ)
(BIREN VAISHNAV, J.)
Ajay
