Gujarat High Court
Jadav Vikramsinh Fatesinh vs Union Of India on 27 March, 2023
Bench: Biren Vaishnav
C/SCA/26643/2022 ORDER DATED: 27/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26643 of 2022
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JADAV VIKRAMSINH FATESINH
Versus
UNION OF INDIA
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Appearance:
MR YASH J PATEL(11240) for the Petitioner(s) No. 1,2,3
DS AFF.NOT FILED (N) for the Respondent(s) No. 4,5
MR. SANJAY UDHWANI, AGP, for the Respondent(s) No. 3
KSHITIJ M AMIN(7572) for the Respondent(s) No. 1
MR. MAULIK NANAVATI, for the Respondent(s) No. 2
NANAVATI & CO.(7105) for the Respondent(s) No. 2
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 27/03/2023
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
A.J.DESAI)
1. Draft amendment is allowed. Necessary
incorporation be made forthwith.
2. RULE returnable forthwith. With the consent of the
learned counsel for the respective parties, the matter is taken
up for final hearing.
3. The present petition has been filed by the petitioner
claiming the relief to modify the award and for re-computation
of the compensation qua the lands of the petitioners by
multiplying the market value as determined under section 26(1)
C/SCA/26643/2022 ORDER DATED: 27/03/2023
of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabiliation and Resettlement Act, 2013 with
factor 2 and applying all other statutory benefits as provided
under the said Act including solatium under section 30(1),
interest under section 30(3). The petitioner further prays for
direction to respondent to pay interest on the same.
4. Having heard learned counsel appearing for the
respective parties, we dispose of this petition in terms of the
order passed by this Court in earlier petition.
5. Mr. Maulik Nanavati learned advocate appearing for
the National Highway Authority of India vehemently opposed
that similar orders cannot be passed in petition where either the
schedule of the award has not been annexed or in case where all
the land owners / beneficiaries of the award have filed such
petition. He would submit that where only some of the
beneficiaries of the award have approached this Court,
directions cannot be issued in light of the decision in case of
Dhiraj A. Patel reported in 2020 (1) GLR 752, as, the
competent authority / the National Highway Authority will have
to redetermine the compensation and review the award though
it has no such power under Section 3(G) of the National
Highways Act, 1956. He would submit that once an award has
been passed by the competent authority, the officer would
become functus-officio and therefore a direction to recompute
the compensation would necessarily amount to reviewing the
award which the Court cannot direct. In support of his
submissions, Mr.Nanavati would rely on a decision in case of
Jyoti Warehousing - through its partner v. State of
C/SCA/26643/2022 ORDER DATED: 27/03/2023
Gujarat and Ors. rendered in Special Civil Application No.6034
of 2015 and allied matters decided by a Division Bench of this
Court by an oral judgment dated 24-31.01.2018.
6. Considering the submissions made by the learned
counsel for the respective parties, it is indeed surprising that
despite the issue being concluded inasmuch as, the decision in
the case of Dhiraj A. Patel (supra) has been confirmed by the
Supreme Court, the counsel for the National Highway
Authorities of India would oppose the granting of such prayers
when in series of orders as referred to herein above, this Court
has followed the decision in case of Dhiraj A. Patel (supra) and
issued directions to redetermine the compensation and modify
the awards and pay the amounts to such beneficiaries of the
awards by applying Factor-2 and pay such compensation with
all statutory benefits including solatium under Section 30(1),
interest under Section 30(3) under the Act 2013.
7. The exercise of application of Factor - 2 and
recomputing the compensation by applying Factor - 2 under
Section 26(2) of the Act shall not amount to reviewing or
modifying the award. What is in fact, being undertaken is that
the awards in question irrespective of the parties concerned are
being modified and/or revised by multiplying the market value
as determined under Section 26(1) of the Act of 2013 with
Factor-2 as per Section 26(2) of the Act in light of the position of
law set out in the case of Dhiraj A. Patel (supra). At this stage,
it needs to be noted that in light of the position of law decided
by this Court in that case, the authorities are expected to apply
Factor-2 in all cases where the lands fall within rural areas and
C/SCA/26643/2022 ORDER DATED: 27/03/2023
the awards accordingly need to be modified if the compensation
has been paid in such cases by multiplying the market value and
applying Factor-2 without compelling the parties or the
beneficiaries of such awards to approach this Court.
8. For all the aforesaid reasons, the petition is allowed
with a direction to the competent authority/land acquisition
officer under National Highways Act, 1956 to give a fresh award
in all cases keeping in mind the decision and the directions in
the case of Dhiraj A. Patel (supra) within a period of eight
weeks from the date of certified copy of this order being filed by
the petitioners before the competent authority. If the
petitioners are entitled to the benefit of Factor-2, the
respondent NHAI is directed to deposit the amount with the
competent authority for disbursement to the petitioners within
21 days from the date of such awards.
9. It will be open for the petitioner to approach the
respondent authorities to satisfy the authorities with evidence
on record to show that the petitioners are the legal heirs of the
beneficiary of the award in question.
10. It has been pointed out by Mr. Udhwani, learned
Assistant Government Pleader that if the present petitioners
have moved for re-determination of compensation before the
Arbitrator under Section 3G(5) of the National Highways Act,
1956, the petitioners may not insist for Factor-2 claim or in the
alternative the respondents may be permitted to apprise the
Arbitrator of the said issue so that there is no further
multiplicity or complication in the proceedings. Mr. Patel,
C/SCA/26643/2022 ORDER DATED: 27/03/2023
learned counsel for the petitioners states that the petitioners
would not insist for Factor-2 before the Arbitrator as they would
be getting the benefit of Factor-2 under the present orders.
11. The petition is allowed to the aforesaid extent. Rule
is made absolute to the aforesaid extent.
(A.J.DESAI, ACJ)
(BIREN VAISHNAV, J)
AMAR SINGH
