Motibhai Ambabhai Patel vs State Of Gujarat
2023 Latest Caselaw 6524 Guj

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    C/SCA/20281/2019                             CAV JUDGMENT DATED: 06/09/2023

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 20281 of 2019
                                  With
    CIVIL APPLICATION (FOR WITHDRAWAL OF MATTER) NO. 1 of 2023
            In R/SPECIAL CIVIL APPLICATION NO. 20281 of 2019
                                  With
         CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2023
            In R/SPECIAL CIVIL APPLICATION NO. 20281 of 2019
                                  With
         CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2023
            In R/SPECIAL CIVIL APPLICATION NO. 20281 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
                                                   sd/-
and

HONOURABLE MR. JUSTICE N.V.ANJARIA                                     sd/-

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1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2      To be referred to the Reporter or not ?                          Yes

3      Whether their Lordships wish to see the fair copy                 No
       of the judgment ?

4      Whether this case involves a substantial question                 No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MOTIBHAI AMBABHAI PATEL Versus STATE OF GUJARAT ========================================================== Appearance:

MR C B UPADHYAYA(3508) for the Petitioner(s) No. 1,2,3 MR BHARAT T RAO(697) for the applicants (s) No. 1,2,3 in Civil Application NO. 1 of 2023 MR YATIN OZA, SENIOR ADVOCATE WITH MR.KIRTAN MISTRY AND MR.

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MAULIK SHETH, ADVOCATES FOR the applicants in Civil Application No. 2 of 2023, 3 of 2023 MR. K.M. ANTANI, AGP, for the Respondent(s) No. 1 - State MR. C.B. UPADHYAYA, ADVOCATE for the respondent Nos. 1 to 3 in Civil Application Nos. 2 of 2023, 3 of 2023 ==========================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR. JUSTICE N.V.ANJARIA

Date : 06/09/2023

CAV JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

(1) The instant writ petition has been filed seeking reliefs as

under : -

"7(A) To quash and set aside communication dated 09.09.2019 addressed by Special Land Acquisition Officer and may further be pleased to declare that the land acquisition proceedings initiate within the purview of the old Act by virtue of LAQ Case No. 8 of 1991 has deemed to have been lapsed by operation and application of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabiliation and Resettlement Act, 2013 and may further be pleased to direct the Respondents herein to issue appropriate notification to that effect;

(B) Pending the admission, hearing and final disposal of this petition, be pleased to restrain the Respondents herein from disturbing the possession of the present petitioners qua land bearing Survey No. 60, Village Sargasan, Taluka and District Gandhinagar, admeasuring about 25,448 sq. Meters of land."

(2) The writ petitioners herein who claimed to be heirs and

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legal representatives of the original owner of the land bearing

Survey No. 60, Village Sargasan, Taluka and District

Gandhinagar admeasuring 25,448 sq. meters of land

(hereinafter referred to as 'the land in question'), seek the

above-noted relief on the premise that neither the physical

possession of the acquired land (in-question) has been taken nor

compensation has been paid. The land acquisition proceedings,

would, therefore, lapse in view of Section 24(2) of the Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabiliation and Resettlement Act, 2013 (hereinafter referred

to as 'the Act, 2013).

(3) The application for withdrawal being Civil

Application No. 1 of 2023 in the main matter, i.e. writ petition

has been filed by the petitioners supported with the affidavit of

one of the writ petitioner stating therein that the petitioners do

not want to pursue the writ petition as they seek to avail remedy

under law by approaching the competent authorities. The

statement in the affidavit (accompanying withdrawal

application) is that the petitioners had executed Memorandum

of Understanding (MoU) and Power of Attorney in favour of two

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persons namely Jayeshbhai Ambalal Patel and Ms. Heenaben

Hareshbhai Patel. However, the said agreement had been

cancelled by the petitioners on 09.06.2022 and the notice, in

this regard, has been duly served upon the aforesaid persons.

A copy of the notice of cancellation of Memorandum of

Understanding and the Power of Attorney is appended therein.

(4) Civil Application No. 2 of 2023 has been filed by two

persons namely Heenaben Hareshbhai Patel and Jayeshbhai

Ambalal Patel for joining as parties, as the writ petitioners, in

the instant petition. Another Civil Application No. 3 of 2023 has

been filed by one Darshini Bakulbhai Chaturvedi seeking to join

as party, as writ petitioner, in the writ petition.

(5) In Civil Application No. 2 of 2023, the applicants

therein seek to assert their right in the land-in-question on the

basis of a Memorandum of Understanding dated 21.12.2018,

with the assertion that right qua the property had been

transferred in their favour. Payment of consideration under the

agreement to sell of consideration has also been made by the

applicants. It is stated that, in case, the original writ petitioners

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are permitted to withdraw the writ petition, the applicants

herein would be adversely effected. It is stated that the original

writ petitioners have orchestrated the present ploy in order to

dupe the applicants herein with one Mrs. Darshini Upadhyaya,

who claim to have entered into subsequent agreement with the

original writ petitioners. It is stated that an amount of Rs. 3.5

crores has been paid to the original petitioners by two

applicants as well as by Mrs. Darshini Upadhyaya. Now with

the withdrawal of the writ petition, the present applicants would

be rendered remediless. It is further stated that no prejudice

would be caused to any of the parties, in case, the applicants

are permitted to join as party. The submission is that the order

for withdrawal may not be passed without hearing the present

applicants.

(6) In Civil Application No. 3 of 2023, similar relief has been

sought by Ms. Darshini Bakulbhai Chaturvedi, the applicant

therein, based on an assignment deed dated 01.11.2021. It is

stated therein that pursuant to the Memorandum of

Understanding dated 26.12.2018 entered into between Ms.

Heenaben Patel and Jayeshbhai Patel, the applicant herein

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namely Darshini Bakulbhai Chaturvedi made a payment of Rs.

2.5 crores under the assignment deed dated 01.11.2021,

pursuant to which a Kabulatnama / agreement had been

executed.

(7) It is asserted in both above mentioned applications

that the applicants therein have incurred substantial amount of

expenses in pursuing the captioned litigation proceedings and

the original writ petitioners in disregard of the understanding

between the parties, have filed application for withdrawal of the

captioned proceedings, without any intimation to the applicants

herein. It is, thus, submitted that the applicants in both the

above-noted applications are necessary and proper parties to

the writ petition and even if the application for withdrawal of

the writ petition, is allowed, they be transposited as writ

petitioners to pursue the reliefs sought therein.

(8) Mr. Yatin Oza, learned Senior Advocate assisted by

learned advocates Mr. Kirtan Mistry and Mr. Maulik Sheth

appeared for the applicant and made his arguments in two folds.

The first submission is that the applicants are necessary and

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property party to the proceedings, where relief has been sought

for declaration of the proceedings as lapsed, inasmuch as, they

have stepped into the shoes of the original writ petitioners -

owners of the acquired land. The withdrawal application has

been filed by the original writ petitioners by concealment of the

fact of execution of the registered Memorandum of

Understanding and the assignment deed, mentioned above. It

was pressed that the applicants may be transpositioned as the

petitioners, in case the original writ petitioners are permitted to

withdraw the writ petition.

(9) In the alternative, it was argued that, in any case,

the applicants have a right to be substituted in the writ petition

in place of the original writ petitioners, as they have acquired

right, title and interest in the land-in-question by the above

noted transferred deeds during the pendency of the

proceedings. As in such a situation, the applicants after

transpositioned as writ petitioners, can seek the relief for

declaration of the land acquisition proceedings as lapsed by

virtue of Section 24(2) of the Act, 2013. And in case, the

applicants after transpositioned as the writ petitioners, are not

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found entitled for the reliefs as prayed in the writ petition, i.e. to

seek declaration of the land acquisition proceedings having

lapsed under section 24(2) of the Act, 2013, atleast, they would

be held entitled to seek disbursement of compensation, having

stepped into the shoes of the original writ petitioners - owners

of the acquired land. It is argued that the withdrawal of the

writ petition at the instance of the original writ petitioners

would further their evil intention to dupe the applicants for their

money and would deprive the applicants from seeking even the

compensation of the acquired land, to which they are legally

entitled.

(10) Dealing with the contention of the learned Senior

Advocate appearing for the applicants in both the Civil

Applications for joining parties, relevant is to note that the

acquisition proceedings of the land-in-question has been

concluded with the award dated 18.01.1996 under section 11 of

the Land Acquisition Act, 1894 and the factum of declaration of

award in furtherance of the acquisition proceedings is admitted

in the writ petition. The original writ petitioners sought the

above noted reliefs with the assertion in the writ petition that

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the proceedings under Section 84C of the Bombay Tenancy Act,

1948, was initiated by the Mamlatdar and Krushi Panch by

virtue of the order dated 17.02.1982 with respect to the land-in-

question on the ground that the land was sought to be sold off to

a non-agriculturist at the relevant point of time. It is stated that

since the aforesaid proceedings were pending from 1982

onwards, the Land Acquisition Officer had refused to disburse

the compensation under the award dated 18.01.1996. It is

further stated that in the year 1996, i.e. on 25.10.1996, the

Deputy Collector, Gandhinagar in the proceedings against the

order dated 17.02.1982, initiated by Mamlatdar and ALT under

Section 84-C of the Bombay Tenancy Act, had been pleased to

drop the said proceedings on the premise that the original

owners were in possession of the property and the original

position had been restored. The order dated 25.10.1996 passed

by the Deputy Collector dropping the proceedings under the

Bombay Tenancy Act, has been duly entered into the revenue

records. It is, thus, contended that the petitioners are still in

possession of the land in question and that since the

compensation under the award has also not been paid, the

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entire acquisition proceedings conducted under the Land

Acquisition Act, 1894, would lapse in view of Section 24(2) of

the new Act, namely the Act, 2013.

(11) In light of the above facts brought on the record of

the writ petition, it is evident that the applicants herein have

entered into the agreement for alleged transfer with regard to

the acquired land, acquisition proceedings with respect to which

have already been concluded with the making of the award

dated 18.01.1996 under Section 11 of the Land Acquisition Act,

1894. The issue of maintainability of the writ petition

challenging the acquisition proceedings by a person who

purchases the acquired land subsequent to the Section 4

notification being issued under the Land Acquisition Act, 1894

has been settled by the Apex Court in the case of V.

Chandrasekaran and Another1. It is held therein that

purchase of land even after publication of Section 4 notification

in relation to the land proposed to be acquired, is void against

the State and any one who deals with the land subsequent to

Section 4 notification being issued, does so, at his own peril.

V.Chandrasekaran and Another versus Administrative Officer and Others reported in (2012) 12 SCC 133

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The alienation thereafter does not bind the State or the

beneficiary under the acquisition. It is further held that a person

who purchases the land after publication of Section 4

Notification with respect to it, is not entitled to challenge the

acquisition proceedings for the reason, as his title is void.

However, at best he can claim compensation on the basis of

vendor's title.

(12) The observations in paragraph Nos. '15 to 18'

therein are relevant to be extracted herein :-

"15. The issue of maintainability of the writ petitions by the person who purchases the land subsequent to a notification being issued under Section 4 of the Act has been considered by this Court time and again. In Pandit Leela Ram versus Union of India, AIR 1975 SC 2112, this Court held that, any one who deals with the land subsequent to a Section 4 notification being issued, does so, at his own peril. In Sneh Prabha v. State of Uttar Pradesh, AIR 1996 SC 540, this Court held that a Section 4 notification gives a notice to the public at large that the land in respect to which it has been issued, is needed for a public purpose, and it further points out that there will be "an impediment to any one to encumber the land acquired thereunder." The alienation thereafter does not bind the State or the beneficiary under the acquisition. The purchaser is entitled only to receive compensation. While deciding the said case, reliance was placed on an earlier judgment of this Court in Union of india v. Shri Shiv Kumar Bhargava & Ors., JT (1995) 6 SC 274.

16. Similarly, in U.P. Jal Nigam v. M/s. Kalra Properties Pvt.

Ltd., AIR 1996 SC 1170, this Court held that, purchase of land after publication of a Section 4 notification in relation to such land, is void against the State and at the most, the purchaser may be a person- interested in compensation, since he steps

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into the shoes of the erstwhile owner and may therefore, merely claim compensation. (See also: Star Wire (India) Ltd. v. State of Haryana & Ors., (1996) 11 SCC 698).

17. In Ajay Kishan Singhal v. Union of India, AIR 1996 SC 2677; Mahavir & Anr. v. Rural Institute, Amravati & Anr., (1995) 5 SCC 335; Gian Chand v. Gopala & Ors., (1995) 2 SCC 528; and Meera Sahni v. Lieutenant Governor of Delhi & Ors., (2008) 9 SCC 177, this Court categorically held that, a person who purchases land after the publication of a Section 4 notification with respect to it, is not entitled to challenge the proceedings for the reason, that his title is void and he can at best claim compensation on the basis of vendor's title. In view of this, the sale of land after issuance of a Section 4 notification is void and the purchaser cannot challenge the acquisition proceedings. (See also: Tika Ram v. State of U.P., (2009) 10 SCC 689).

18. In view of the above, the law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title."

(13) From the above, right of subsequent purchaser to

assail the acquisition proceedings has been set at rest. It is,

thus, clear that the subsequent purchaser who cannot assail the

acquisition proceedings even after purchase of the land

subsequent to issuance of Section 4 Notification under the Land

Acquisition Act, 1894, cannot be permitted to challenge the

acquisition proceedings on the ground that the proceeding has

lapsed under Section 24(2) of the Act, 2013 on account of non-

payment of compensation to the original owner, after conclusion

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of the proceedings.

(14) With regard to applicability of Section 24(2) of the

Act, 2013, we may refer to the decision of the Apex Court in the

case of Indore Development Authority2, wherein while

interpreting the provision of Section 24(2) of the Act, 2013, it is

held that to attract the said provision, both the requirements of

sub-section (2) of Section 24 have to be fulfilled. The deemed

lapse of land acquisition proceedings under Section 24(2) of the

Act 2013,, takes place where due to inaction of authorities for

five years or more prior to the commencement of the Act of

2013, the physical possession of the land has not been taken nor

the compensation has been paid. Meaning thereby, in case, the

possession has been taken, but the compensation has not been

paid, there is no lapse. Similarly, if compensation has been paid,

but possession has not been taken, then there is no lapse.

(15) It is further held that the mode of taking possession

under the 1894 Act and as contemplated under section 24(2) of

the Act, 2013 is by drawing of inquest report / memorandum.

Indore Development Authority versus Manoharlal and Others reported in (2020) 8 SCC

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Once award has been passed on taking possession under

Section 16 of the 1894 Act, the land vests with the State and

there is no divesting provided under Section 24(2) of the Act,

2013. Thus, once possession has been taken, there is no lapse

under Section 24(2) of the Act, 2013.

(16) The expression "paid" under the Act, 2013 has also

been interpreted to mean that, in case, a person has been

tendered compensation as provided under Section 31(1) of the

1894 Act, it is not open for him to claim that acquisition has

lapsed under Section 24(2) due to non-payment or non-deposit

of compensation in the Court. The obligation to pay is complete

by tendering the amount under Section 31(1). The land owners

who had refused to accept the compensation or who sought

reference for higher compensation cannot claim that the

acquisition proceedings had lapsed under Section 24(2) of the

Act, 2013.

(17) It is further held therein that Section 24(2) of the

Act, 2013 does not give rise to new cause of action to question

the legality of concluded proceedings of land acquisition under

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the Land Acquisition Act, 1894. Section 24 applies to a

proceeding pending on the date of enforcement of 2013 Act,

which is 01.01.2014. It does not revive stale and time barred

claims and does not reopen the concluded proceedings nor

allow landowners to question the legality of mode of taking

possession to reopen proceedings or mode of deposit of

compensation in the treasury instead of Court, to invalidate

acquisition.

(18) In light of the above, suffice it to note that in the

instant case, the original writ petitioners themselves came out

with the stand that the land acquisition proceedings had been

concluded with the making of the award dated 18.01.1996.

However, the payment could not been made to them because of

the pendency of the proceedings under Section 84C of the

Bombay Tenancy Act. The proceedings under the Bombay

Tenancy Act, according to the writ petitioners, had been

dropped on 28.10.1996 with the order passed by the Deputy

Collector. The contention in the writ petition is that a

representation was moved by the petitioners before the

Collector - Land Acquisition Officer and the Executive Engineer

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of the project concerned on 22.08.2019, requesting them to

issue a declaration to the effect that the land acquisition

proceedings with respect to land in question have lapsed with

the enforcement of Section 24(2) of the Act, 2013.

(19) A bald assertion has been made in the writ petition

that compensation under the award dated 18.01.1996 has not

been paid to the writ petitioners even after conclusion of the

proceedings under the Bombay Tenancy Act. However, there is

nothing on record except a letter of the Executive Engineer of

the project concerned that the original owners / writ petitioners

have never denied disbursement of compensation. The entire

petition is silent about the mode of taking possession of the land

in question or deposit of compensation by tendering the same

under Section 31(1) of the Land Acquisition Act, 1894.

(20) From the above, it is evident that the claim of the

original writ petitioners of the proceedings having been lapsed

by virtue of Section 24(2) of the Act, itself was devoid of merit.

Be that as it may, it seems that with the passage of time some

sense has prevailed with the writ petitioners and they seek to

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withdraw the writ petition with the assertion that they seek to

take recourse to the remedy available under the law before the

appropriate authorities. At this stage, the applicants herein are

trying to intervene, seeking indulgence of this Court to pursue

the writ petition for the reliefs, which cannot be granted to the

original writ petitioners, even.

(21) For the above and in addition to the fact that the

applicants claimed to be the transferees by virtue of

Memorandum of Understanding and Assignment deed, they

cannot be permitted to challenge the land acquisition

proceeding, which stood concluded with the making of the

award in the year 1996, on the premise, that the possession of

the land in question is with the original writ petitioners -

owners and the compensation under the award has not been

paid to the original owners - writ petitioners.

(22) On all the above noted counts, the plea of the

applicants seeking to join as party, to transposition them as

petitioners in the instant writ petition, cannot be accepted. The

prayers in both the applications namely Civil Application No. 2

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of 2023 and Civil Application No. 3 of 2023 are found

misconceived. Both the applications are accordingly,

REJECTED.

(23) On the withdrawal application filed by the original

writ petitioners, accepting the prayer for withdrawal of the

original writ petitioners, the Special Civil Application No. 20281

of 2019 is dismissed as withdrawn.

(24) It is further made clear that the above noted

observations with respect to the right of the writ petitioners to

challenge the land acquisition proceedings are made in order to

examine the claim of the applicants to seek permission to

transposit them as the petitioners, so as to assess as to whether

they have any legitimate right to pursue the reliefs in the

original writ petition before us. Any dispute between the

parties arising out of the Memorandum of Understanding or the

Assignment deed, the basis of the claim of the applicants, would

not be guided by the observations made hereinabove. It is thus,

clarified that the dispute inter se parties arising out of the deeds

executed between them, has not been adjudicated by this Court.

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(25) With the above, the withdrawal application being

Civil Application No. 1 of 2023 is ALLOWED. Special Civil

Application No. 20281 of 2019 is dismissed as withdrawn.

Interim order, if any, stands discharged. No order as to costs.

Sd/-

(SUNITA AGARWAL, CJ )

sd/-

(N.V.ANJARIA, J) AMAR SINGH