Babulal Lakharam Sharma vs The Competent Authority Nh No 8 And ...
2023 Latest Caselaw 7746 Guj

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      C/SCA/9996/2023                        ORDER DATED: 19/10/2023

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 9996 of 2023

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            BABULAL LAKHARAM SHARMA
                          Versus
  THE COMPETENT AUTHORITY NH NO 8 AND SPECIAL
             LAND ACQUISITION OFFICER
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Appearance:
MR KARTIKEY KANOJIYA for MR MANISHKUMAR
MANGILAL(12953) for the Petitioner(s) No. 1,2,3
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
MR VATSAL K TRIVEDI(10957) for the Respondent(s) No. 2,3
MR YOGESH G DEV(5700) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS.
      JUSTICE SUNITA AGARWAL
      and
      HONOURABLE MR. JUSTICE ANIRUDDHA P.
      MAYEE

                        Date : 19/10/2023

                     ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS.

JUSTICE SUNITA AGARWAL)

1. The learned advocate for the petitioners has submitted the draft amendment. Amendment is allowed in terms of the draft. Necessary amendments be carried out accordingly.

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     C/SCA/9996/2023                           ORDER DATED: 19/10/2023

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2. The petitioners are seeking re-determination of compensation under the award dated 29.02.2016 on the premise that they are entitled for compensation treating the land-in-question lying in "rural areas" as defined in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabiliation and Resettlement Act, 2013 (hereinafter referred to as "the Act, 2013").

3. The assertion of learned counsel for the petitioners is that petitioners were entitled to determination of compensation by applying Factor '2' as per the First Schedule of the Act, 2013, in the award itself i.e. which was passed on 29.02.2016. However, on account of a Notification dated 25.04.2014, wherein direction was given to the Special Land Acquisition Officer to declare the pending award under Section 11 of the Land Acquisition Act, 1894, by considering multiplying Factor '1' only, the award dated 29.02.2016 was passed by multiplying Factor '1' only in the First Schedule. As regards the application for application of Factor '2' in the First Schedule, the matter was kept pending as it was a policy decision of the State Government. However, the Notification dated 25.04.2014 has further clarified that the fact that the application of Factor '2' was a policy decision should be mentioned in the award itself and in future, when the State Government decides the multiplying factor for rural area as per the Act, 2013, then the additional compensation would be payable with interest as per the Act, 2013 by the acquiring body.

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     C/SCA/9996/2023                           ORDER DATED: 19/10/2023

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4. It is submitted by the learned counsel for the petitioners that the Notification notifying the policy decision with respect to application of Factor '2' as per First Schedule of the Act, 2013 was issued on 29.07.2016. The said Notification was later modified and certain disputes arose with respect to the subsequent Notifications dated 10.11.2016 and 11.09.2018, which has been decided by this Court vide judgment and order dated 12.09.2019 passed in Special Civil Application No. 8734 of 2019, connected with other petitions. This Court, while setting aside the Government Resolutions dated 10.11.2016 and 11.09.2018 has issued directions to modify the awards and recompute the compensation qua the lands of the petitioners by multiplying the market value by application of Factor '2' and all other statutory benefits.

5. The submissions is that the judgment and order dated 12.09.2019 passed by this Court is being followed in subsequent writ petitions, wherein the issue has been raised with respect to declaration of award under the Act, 2013, without applying Factor '2' in Schedule - II of the Act, 2013.

6. Ms. Manvi Damle, learned advocate for Shri Maulik Nanavati, learned advocate appearing for the National Highway Authority of India would submit that the petitioners herein are entitled for consideration of their claim on the basis of the Government Resolution dated 29.07.2016, whereby the State Government had

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C/SCA/9996/2023 ORDER DATED: 19/10/2023

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determined the application of Factor '2' under Section 26(1) of the Act, 2013 as per the First Schedule. However, the question as to whether the area-in-question is falling in rural area within the meaning of Rules, 2017 and, thus, application of Factor '2' in accordance with Section 26(1) of the Act, 2013, is to be inquired by the competent authority for determination of the claim of the petitioners herein.

7. Noticing the above, as we find that factual inquiry is required to be made at the ends of the competent authority, without entering into the merits of the claim of the parties, the present petition is being disposed of with the direction that the Competent Authority namely Special Land Acquisition Officer, Sabarkantha, Himmatnagar shall decide the claim of the petitioners by taking into consideration all attending circumstances / factors as per the provisions of Section 26(1) of the Act, 2013, keeping in mind the Government Resolution dated 29.07.2016 read with the Government Resolution dated 25.04.2014.

8. Notice be issued to the respondent - National Highway Authority of India, whose representatives are obliged to participate in the process of re-determination. The determination of all statutory benefits admissible to the petitioners shall be made by the competent authority namely Special Land Acquisition Officer, Sabarkantha, Himmatnagar, keeping in mind the observations made herein above,

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C/SCA/9996/2023 ORDER DATED: 19/10/2023

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by passing a reasoned and speaking order, strictly in accordance with law, preferably within a period of three months from the date of receipt of the copy of this order.

9. It is clarified that in case, the petitioners are found entitled to enhanced compensation, the disbursement of the compensation shall be made strictly in accordance with the provisions of the Act, by putting notice and intimation to all concerned.

10. Pending Civil Application(s), if any, shall also stand disposed of, accordingly.

[ Sunita Agarwal, CJ. ]

[ Aniruddha P. Mayee, J. ] hiren /54