Dhanabhai Karmanbhai Desai vs State Of Gujarat
2023 Latest Caselaw 2489 Guj

    C/SCA/11813/2021                              JUDGMENT DATED: 24/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11813 of 2021


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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                       DHANABHAI KARMANBHAI DESAI
                                 Versus
                       STATE OF GUJARAT & 5 other(s)
==========================================================
Appearance:
KRISHAL H PATEL(9644) for the Petitioner(s) No. 1
MR SAURIN A MEHTA(470) for the Petitioner(s) No. 1
MS. SHRUTI PATHAK, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,6
MR RUTVIJ S OZA(5594) for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 2,3,5
==========================================================

    CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
          JUSTICE A.J.DESAI
          and
          HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 24/03/2023


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     C/SCA/11813/2021                                     JUDGMENT DATED: 24/03/2023




                      ORAL JUDGMENT

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

1 The petitioner, whose land is not additionally

acquired subsequent to the alignment / shifting of a minor

river of Narmada is praying that either the laying down of

the canal of which construction was completed way back

on 30.06.2014 be laid down as per the original plan and

notification issued thereafter, or pay the damages

treating that the 20% of the land belonging to the

petitioner is spoiled pursuant to laying down of the canal.

2 The short facts arising in the petition is as under:

2.1 The petitioner, who is an agriculturist, is an occupier

of land bearing Survey No.40 of village: Shankheshwar,

Taluka: Shankheshwar, District: Patan. A notification was

issued by the respondent under Sec.4 of the Land

Acquisition Act, 1894 for acquisition of certain lands

which were passing through several survey numbers

including Survey No. 130, 137 and 139 and a corner of

the land of the petitioner i.e. Survey No. 140. Thereafter,

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

notification was issued and ultimately award was

declared by the authority.

2.2 It is the case of the petitioner that at the instance of

the owner of Survey No. 139, the authority, without

following any procedure shifted the canal which was

passing in a straight line, in such a manner that it would

help the owner of Survey No. 139.

2.3 It is the case of the petitioner that when the

petitioner came to know about the intention of the

respondent, he made representation to the concerned

authority. However, there was no reply from the authority

from 2013 till 2021. When the petitioner received

information from the respondent Sardar Sarovar Nigam

Limited ("SSNL" for short), that the canal was shifted and

therefore the petitioner has to file this petition praying as

under:

"8(A) YOUR LORDSHIPS may be pleased to admit and allow this petition.

(B) YOUR LORDSHIPS may be pleased to issue a

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

writ of Mandamus or any other appropriate Writ or Direction by directing the Respondents jointly and severally to take necessary and corrective actions by directing the Respondents to construct the Bolera Branch Canal, Padivada Distributary, Shankheshwar Minor Canal-2 on Survey Nos. 130, 137 and 139 as per the approved Plans and as per the Section 4 and 6 Notification issued under the Land Acquisition Act, 1894 for the same as straight line;

(C) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus or any other appropriate Writ or Direction by directing the Respondents to take appropriate steps to restore the Land bearing Survey No. 140 situated at Mouje : Shankheshwar, Taluka : Shankheshwar, District : Patan of the Petitioner in its original and cultivable Land and/or grant compensation to the Petitioner for adversely affecting the cultivability of the land of the Petitioner;

(D) Pending hearing and final disposal of the Petition, YOUR LORDSHIPS may be pleased to direct the Respondents to grant interim compensation to the Petitioner for adversely affecting the cultivability of the land of the Petitioner as the action of the Respondents violates Article 14, 19(1)(g) and 21 of the Constitution of India;

(E) YOUR LORDSHIPS may be pleased to grant such other and further relief/s, as may be deemed fit by this Hon'ble Court, in the interest of justice."

2.4 In response to the notice issued by this Court, the

respondent SSNL has filed an affidavit dated 30.09.2021

and has placed relevant documents in support of the

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

decision taken by the SSNL to shift the canal and

opposed the grant of relief as prayed for.

2.5 In response to the affidavit-in-reply, the petitioner

has filed an affidavit-in-rejoinder and has placed report of

a government approved surveyor who has decided about

damages caused to the land.

3 Mr.Saurin Mehta, learned advocate appearing with

Mr.Krishal Patel, learned advocate for the petitioner, has

vehemently submitted that the action on the part of the

respondent is contrary considering the basic law of giving

an opportunity of hearing to the affected person. By

taking us through the map produced by the petitioner at

Annexure-'A', he would submit that as per the original

complaint, the canal was passing through several survey

numbers in a straight line i.e. Survey No.137, 139 and

142. He would submit that a corner of Survey No. 140

was also being used for passing of the canal. However, at

the instance of owner of Survey No. 139, the respondent

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

authorities constructed the canal in such a manner that

additional expenses were incurred and other curves

carried out pursuant to the subsequent laying down of the

canal has affected the petitioner.

3.1 He would submit by taking us through the Report

dated 01.02.2020 issued by Dy. Executive Engineer,

Kutchchh Canal, Branch: Harij. He would submit that the

canal was shifted pursuant to the request made by the

owner of Survey No. 139 of the said village

Shanksheshwar. He, therefore, would submit that the

illegal acquisition has been made by the respondent

authorities, and therefore, the same is required to be

quashed and set aside. He would submit that due to

shifting of the canal which is adjacent to the border of the

field of the petitioner, the adjacent land has become

useless for cultivation, and therefore also, the petitioner

would be entitled for the relief of compensation. He

would submit that carrying out agricultural activities is

the fundamental right of the farmer and in such a case,

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

the Court should interfere with the illegal action carried

out by the respondent authority.

3.2 In support of his submission, he has relied on a

decision of the Hon'ble Apex Court in the case of Indibily

Creative Private Limited & Ors vs. Government of

West Bengal & Ors., reported in (2020) 12 SCC 436.

He would submit that the State may be made liable to pay

compensation while exercising powers under Article 226

of the Constitution of India. On the same line he has

relied upon another decision of the Apex Court in the

case of Nilabati Behera (Smt) Alias Lalita Behera vs.

State of Orissa & Ors., reported in (1993) 2 SCC 746.

He would submit that appropriate compensation be

awarded. He has also relied upon another decision of the

Hon'ble Apex Court in the case of Dalmia Cement

(Bharat) Ltd vs. Union of India & Ors., reported in

(1996) 10 SCC 104., and would submit that the

petitioner is having a fundamental right for cultivating

land and if it is found that the breach has been committed

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

by the government, the same can be granted by the High

Court. He therefore would submit that the petition be

allowed.

4 On the other hand, Mr.Rutvij Oza, learned advocate

appearing for the respondent - SSNL, has vehemently

opposed this petition. He would submit that the petition

suffers from delay and laches. He would submit that it is

true that initially the canal was proposed to be laid down

in a straight line; however, a representation was made by

the owner of Survey No. 139 of Shankheshwar village

that if the canal is laid in such a manner, his land would

be divided in such a portion that he would not be able to

carry any agricultural work in that part of the land. After

considering the submissions, the authority prepared a

report and decided to change the alignment of the canal

in such a manner that least damages are caused to other

persons.

4.1 By taking us through the communication dated

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

19.02.2014, he would submit that the canal is not at all

passing through the land of the present petitioner who is

the owner of Survey No.140. He would submit that

thereafter, the higher authority by communication dated

05.06.2014 decided to accept the submission made by the

authority and has decided to shift the canal. Mr.Oza,

learned advocate, would submit that the land belonging

to the petitioner is used for at the time of changing or

altering the laying down of the canal and only corner of

Survey No. 140 belonging to the petitioner is acquired for

the said canal. He, therefore, would submit that the

petition has been filed with ulterior motive.

4.2 Mr.Oza, learned advocate, would further submit that

the work of construction of canal has been completed way

back on 30.06.2014 for which a Completion Certificate

has been issued by the Deputy Executive Engineer and

Executive Chairman. The construction of canal is

completed way back in the year 2014 whereas the

petition has been filed in the year 2022. He would submit

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

that as far as the damages claimed by the petitioner with

regard to the alleged damage to the land in question is

concerned, the petitioner is unable to establish the actual

damage.

4.3 Mr.Oza, learned counsel, has taken us through the

photographs produced along with the affidavit and would

submit that the minor canal is passing through Survey

No. 139 and no portion of the land has been used for

laying down canal. He would submit that even subsequent

to the shifting of canal, owner of Survey No. 130 and 137

have not raised any objection though the canal has been

laid in such a manner that they are least affected and

nobody has raised any objection, he would submit that

the petition be dismissed.

5 We have heard learned advocates appearing for the

respective parties. It is not in dispute that subsequent to

shifting the canal from one place to another, land of the

petitioner is not at all acquired, whereas the shifting of

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

the canal as is evident from the map which has been

produced by the petitioner himself is that the same is

passing through the border of Survey No. 140 whereas

earlier it was passing in such a fashion that the owner of

Survey No. 139 could not have been cultivating the same.

Only corner of the land of the petitioner which was also

under acquisition in the earlier notification was used.

That apart, no more land is acquired for laying down of

the canal.

5.1 It is also pertinent to note that when the land

belongs to the petitioner is acquired pursuant to shifting

of the construction of canal, the present petition is filed

only on the ground that the land belonging to the

petitioner is spoiled. It is also pertinent to note that the

Certificate has been issued, wherein, it has been

specifically stated that the actual work and laying down

the canal work is completed on 30.06.2014 i.e. more than

nine years. As far as considering the damages for alleged

damage to the land belonging to the petitioner is

concerned, we are of the considered view that by

C/SCA/11813/2021 JUDGMENT DATED: 24/03/2023

producing documents in the nature of report, the damage

cannot be decided by this Court, and therefore, the

judgements relied upon by the learned advocates are not

applicable in the present proceedings.

6 We find no merits in the petition. The petition is

dismissed, accordingly. Rule is discharged.

(A.J.DESAI, ACJ)

(BIREN VAISHNAV, J) BIMAL