Gujarat High Court
Gangaben D/O Merabhai Dhudabhai ... vs State Of Gujarat on 20 March, 2023
Bench: Biren Vaishnav
C/SCA/18904/2019 ORDER DATED: 20/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18904 of 2019
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GANGABEN D/O MERABHAI DHUDABHAI SOLANKI AND W/O JAGABHAI
JIVABHAI
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 through
her power of attorney holder 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 14.06.2019
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/18904/2019 ORDER DATED: 20/03/2023
follows:
[3.1] That, a portion of land i.e. 0-10-71 Sq. Meter from the land
bearing survey No.508 (New Block / Survey No.289) 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/18904/2019 ORDER DATED: 20/03/2023
Parsottambhai Merabhai Solanki, who is real brother and also the
power of attorney holder of the present petitioner, respondent
No.2 did not accept the application of the present petitioner and
rejected the said application vide the impugned order dated
14.06.2019.
Hence, present petition.
[4.0] Learned advocate Mr. Bhaumik Dholariya appearing for the
petitioner would submit that the land in question was sold to her
real brother and accordingly, name of her real brother was
mutated in the revenue record. Thereafter, as per the mutual
understanding between the petitioner and her brother, 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
alongwith the affidavit of brother and power of attorney holder
of the present petitioner viz. Parsottambhai Merabhai Solanki in
which he has specifically stated that the amount of additional
compensation be paid to his sister i.e. the present petitioner. 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 present petition has been filed on behalf of
the petitioner through her power of attorney holder i.e.
Parsottambhai @ Pasabhai Merabhai Solanki in whose favor the
sale deed was executed and has prayed that the amount of
additional compensation be paid to the present petitioner. He,
C/SCA/18904/2019 ORDER DATED: 20/03/2023
therefore, would submit that the petition be allowed.
[5.0] On the other hand, learned AGP Mr. Utkarsh Sharma
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 her real
brother viz. Parsottambhai @ Pasabhai Merabhai Solanki
however, as per their mutual understanding and subsequent to
the award passed by the learned Reference Court, the brother of
the present petitioner supported the application filed by the
present petitioner under Section 28-A of the Act of 1894 by
submitting an affidavit and declared that the additional amount
be paid to the present petitioner who happens to be his real
sister. It is also pertinent to note that even the present petition
has been filed by the petitioner through said person i.e.
Parsottambhai @ Pasabhai Merabhai Solanki, whose name is
mutated in the revenue record.
C/SCA/18904/2019 ORDER DATED: 20/03/2023
[8.1] Considering the aforesaid aspect, we are of the opinion
that present petition requires consideration.
[9.0] In view of above discussion, present petition is allowed.
Impugned order dated 19.04.2018 passed by respondent No.2 is
hereby quashed and set aside. Respondent No.2 is hereby
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
