Gujarat High Court
Prakashbhai Kalidas Dave vs State Of Gujarat on 20 March, 2023
Bench: Biren Vaishnav
C/SCA/12792/2019 ORDER DATED: 20/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12792 of 2019
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PRAKASHBHAI KALIDAS DAVE
Versus
STATE OF GUJARAT
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Appearance:
MR BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No. 1
MS SHRUTI PATHAK, 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 Order dated 09.01.2019 passed by
the respondent no.2 (ANNEXURE "A") and be pleased to
direct the respondent no.2 to decide afresh the application
of the petitioner u/S.28A (ANNEXURE "B") within a
stipulated time frame;"
[3.0] The short facts arising from the record of the case are as
C/SCA/12792/2019 ORDER DATED: 20/03/2023
follows:
[3.1] That, a portion of land i.e. 0-91-93 Sq. Meter from the land
bearing survey No.7/2 of Mouje Lendau, Taluka Tharad, District
Banaskantha admeasuring 3 Acre 17 Guntha (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 26.03.1998 and notification under Section 6
of the Act of 1894 came to be issued on 03.08.1998. That,
thereafter, award dated 24.05.2000 came to be passed by
respondent No.2.
[3.2] That, being aggrieved with the said award dated
24.05.2000, some of the land owners preferred reference under
Section 18 of the Act of 1894 before the learned Principal Civil
Judge, at Palanpur, District Banaskantha viz. Land Acquisition
Reference Case Nos.530/2000 to 546/2000 . That, the learned
Reference Court vide judgment and award dated 11.05.2016
partly allowed the reference cases.
[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
14.07.2016 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, respondent No.2 rejected the said application vide
the impugned order dated 09.01.2019.
C/SCA/12792/2019 ORDER DATED: 20/03/2023
Hence, present petition.
[4.0] Learned advocate Mr. Bhaumik Dholariya appearing for the
petitioner would submit that initially the land in question
belonged to the petitioner however, vide Revenue Entry dated
03.11.1998, name of his cousin viz. Babulal Vaghjibhai Dave was
mutated. He would submit that since the land belonged to the
petitioner, alongwith application under Section 28-A of the Act of
1894, the petitioner did submit the affidavit of his son whose
name was mutated in the revenue record wherein it is stated that
his cousin has no objection if the compensation in addition to
amount of compensation awarded by the learned Reference
Court is granted in favour of the present petitioner. He would
submit that even notice under Section 12(2) of the Act of 1894
was issued to the petitioner however, respondent No.2 has
rejected the application under Section 28-A of the Act of 1894.
He, therefore, would submit that the petition be allowed.
[5.0] On the other hand, learned AGP Ms. Shruti Pathak
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 has been mutated in the revenue record. She,
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
25.07.2019 however, no affidavit in reply is filed till date.
C/SCA/12792/2019 ORDER DATED: 20/03/2023
[8.0] It is true that for the first time the name of another person
viz. Babulal Vaghjibhai Dave was mutated in the revenue record
concerning the land in question only on 03.11.1998. It is also
pertinent to note that notice under Section 12(2) of the Act of
1894 was issued to the petitioner. Now, considering the facts of
the case, it appears that said Babulal Vaghjibhai Dave has filed an
affidavit dated 25.10.2018 before the Authority and has
declared that since he has no objection if the additional amount
of compensation towards the land in question is granted to the
petitioner since he has already received the amount of
compensation for the land which he owned.
[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 09.01.2019 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 two
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
