Ayesha Mohamed Dadabhai vs State Of Gujarat
2023 Latest Caselaw 6750 Guj

                                                                                       NEUTRAL CITATION




      C/SCA/15819/2023                                ORDER DATED: 13/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO.              15819 of 2023

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                            AYESHA MOHAMED DADABHAI
                                     Versus
                                STATE OF GUJARAT
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Appearance:
MR NIRAD D BUCH(4000) and MRS. BHAVINI N. BUCH(5403)for the
Petitioner(s) No. 1,10,11,12, 13,14,2,3,4,5,5.1,5.2,5.3, 5.4,
5.5,6,7,7.1,7.2,8,8.1,8.10,8.2, 8.3,8.4,8.5,8.6,8.7,8.8,8.9,9
MR KA PARIKH, ASST. GOVERNMENT PLEADER for Respondent(s) No.1
 for the Respondent(s) No. 2
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     CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
           AGARWAL
           and
           HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                        Date : 13/09/2023
                            ORAL ORDER

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

1. The present petition has been filed by fourteen

petitioners, out of whom, thirteen are stated to be

represented through petitioner No.14, who is their

power of attorney. Petitioner No.14 even is

represented through his power of attorney, namely,

Mr.Sajid Mahmedshafi Kothia.

2. It is contended that all the petitioners herein

have executed Power of Attorneys at different point

of time in favour of Mr.Sajid Mahmedshafi Kothia, who

has filed the instant petition and the Power of

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Attorneys are still subsisting. The petitioner Nos.1

to 8.10 herein claim to be co-owners of land bearing

Survey No.185/II admeasuring 17,503 sq.mtrs. situated

at Village Kantharia, Taluka and District Bharuch and

the petitioner Nos.9 to 10 are owners of land bearing

Survey No.186/18 admeasuring 7184 sq.mtrs., which

were acquired by acquisition Notification dated

06.08.2013 and 25.07.2014 under Section 3A and 3D of

the National Highways Act, 1956.

3. The prayer in the writ petition is of quashing

the communication dated 15.03.2023 issued by

respondent No.2, namely, the Competent Authority,

National Highways Act, 1956, whereby the petitioners

have been asked to provide the details of joint bank

account of all the co-tenure holders registered in

Village Form No.7 of the aforesaid survey numbers, so

as to process their request for disbursement of

compensation.

4. It is submitted by the learned counsel for the

petitioners that this is the second round of

litigation in the matter of payment of compensation.

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In the first round in Special Civil Application

No.11985 of 2021, the petitioners sought for

enhancement of compensation, by recalculation of the

same giving effect to Factor-2. The writ petition was

allowed vide judgment and order dated 27.08.2021,

directing the Competent Authority to revise the award

and issue fresh award by extending the benefits given

in paragraph-21 of the judgment and order dated

12.09.2019 passed in Special Civil Application

No.8734 of 2019. It is submitted that the judgment of

the Division Bench dated 12.09.2019 has been affirmed

by the Apex Court in Special Leave Petition (Civil)

Diary No.18777 of 2020 filed by the State.

Re-determination was made by declaration of fresh

award, thereafter, on 19.01.2022 by respondent No.2.

The petitioners herein who had received compensation

under the initial award are entitled to receive

difference towards enhanced compensation. A notice

dated 20.01.2022 has been placed before the Court to

submit that respondent No.2 required bank account

number of each of the co-tenure holder as well as

common bank account of all of them. Another

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communication dated 15.03.2023 was issued by

respondent No.2 asking the Power of Attorney holder

of the writ petitioners to submit a copy of the

passbook of joint bank account of all the writ

petitioners, so that the enhanced compensation can be

transmitted in the accounts of each of the writ

petitioners. It is submitted by the learned counsel

for the petitioners that there is an agreement

between the co-tenure holders to the effect that the

compensation payable to each of the co-tenure holder

to the extent of their share in the land in question

be transferred in the bank account of petitioner

No.14, who is having a bank account in India. The

said request was made for the reason that as per the

Banking Laws, it is not possible to open joint

account of all twenty-eight co-tenure holders as

required by respondent No.2. Further, all the owners

are residents of United States of America (USA) and

it is not possible for them to come to India together

for opening their bank account jointly. They have

given Power of Attorney to Mr.Sajid Mahmedshafi

Kothia, who happens to be their maternal uncle, in

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order to manage their finances. Petitioner No.14, who

is having Bank Account No.10710110002025 with UCO

Bank, Kantharia Branch, has no objection to transfer

the compensation amount in his account nor any of the

co-tenure holders - co-owners raised any dispute.

Based on the reply submitted by the Power of Attorney

holder of the petitioners, namely, Mr.Sajid

Mahmedshafi Kothia, appended at page-66 of the paper-

book to the notice dated 15.03.2023, it is submitted

by the learned counsel for the petitioners that it

was intimated to the Competent Authority that no

dispute would be raised by any of the co-owners in

future, with respect to the disbursement of

compensation which is lying with respondent No.2. It

is submitted by the learned counsel for the

petitioners that the Power of Attorney holder is

agreeable to record his statement to that effect. It

is contended that in the past, the compensation

determined under the original award was transmitted

in the bank account of petitioner No.14 and no

objection was raised by the Competent Authority at

that point of time. The dispute being raised here in

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the matter of disbursement of enhanced compensation

is nothing but an act of harassment on the part of

respondent No.2 to the rightful claimants of

compensation.

5. Having considered the submissions of the learned

counsel for the petitioners and perused the record,

we may note that the Power of Attorney given in

favour of Mr.Sajid Mahmedshafi Kothia, through whom

the instant writ petition has been filed, is a

limited Power of Attorney giving right to the

attorney holder to do all such acts which the

petitioners can do personally in respect of the

acquired property. The Power of Attorney holder is

authorized to undertake following actions in relation

to the property pertaining to the petitioners

herein :-

"1. To appear and remain present only before land acquisition officer and to make submission, to put signature/s on all the forms documents to be filed with all such authorities in respect of the aforesaid property for land acquisition and to carry out all the necessary proceedings which may required to be done in respect of the said property for land acquisition purpose only. To Transfer our

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aforesaid property by way of sale, gift, exchange or otherwise and to entered into agreement regarding such deals with anybody in respect of our aforesaid property and execute sale deed, Gift Deed, relinquish Deed or otherwise and to put signature in such deed/s or any other necessary documents, forms and to get such deed/s, agreements/s and documents registered with the sub - Registrar office or any other competed Registering Authority.

2. We further authorize my attorney to handle all the cases, matters arise in respect of the said property mentioned in Para-1, and 2 in respect of such cases, matters, and file appeal, revision, to present before any appropriate Courts and any concerned authorities and to all the activities related to land acquisition cases, like before an arbitrator court, high court, supreme court or any competent court matters arise in future in respect of the aforesaid property.

3. To Commence, Prosecute or to enforce or to be defend, answer or oppose all actions and other legal proceedings and demands touching any of the matters appoint senior advocate, advocate for his legal help if needed for aforesaid property or any other matters in which I may hereafter be interested or concerned and also if the said attorney shall thing fit to compromise,refer arbitration abandon, submit to judgment or become non- suited in any such/action or proceedings as aforesaid.

To remain present before the Government, Semi Government or Private authorities, Collector office, SDM Office, Mamlatdar

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Office, Talati Office, City Survey Office or other offices laq office, and to make necessary application/s to put signature in application/s on our behalf, in respect of management of our aforesaid property, and to make payment of necessary premium of other charges to the Government or otherwise.

4. In short, by this limited Power of Attorney, I hereby authorize and empower my said attorney to do all the acts, which WE can personally do in respect of my above mentioned property which is acquire in Vadodara Mumbai express high .DFCC, BULLET TRAIN OR ANY LAND acquisition. By Virtue of this Power of Attorneys, my Attorney is free and entitled to do all the acts, of land acquisition only in respect of my aforesaid property.

5. My Power of Attorney can remain present and can do all acquisition proceedings on OUR behalf to object the Award in relation to, National Highway, DFCC TRAIN OR ANY LAND acquisition but he can not take land acquisition payment but that acquisition payment should be deposited IN ANY ONE OR MORE THEN ONE OF LAND OWNERS bank account IN INDIA AS OUR ATTORNEY DEEMS FIT AND in short acquisition payment of aforesaid property should be deposited ONE OF LAND OWNER OR OWNERS account only.

The power of attorney issued by us is appended to the immovable property, so "Gujarat Registration Act - 2018 - comes in force from Date 10/07/2020 under the notification Number/GHM-2020-39-M-RGN-1 2201 8-REG841/27-H1 Dt. 09/07/2020, according to its provision the registration of all Power of attorney related to the immovable properties is

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compulsory to be register. So the registration of Power of attorney signed by us is compulsory. But we settled in foreign so I am not able to remain present physically for the registration of the Power of attorney. So the said power of attorney signed by us to submit in Sub Registrar office and to give confess on behalf of us before Sub Registrar we hereby appoint to RELATIVE (COUSIN SISTER SON) SAJID MAHMED SHAFI VALI KOTHIA (Second Party) RESIDING AT : At present Village kanthariya TA & DIST BHARUCH. GUJARAT, INDIA as OUR special Power holder. On that basis he can register the Power of attorney in Sub Registrar office.

6. For the above said limited purpose, we issue this Power of Attorney before the Competent Authority. WE ARE giving this limited power of attorney only for administrative work for above mention property OUR attorney can not do any financial work. He can only appear before land acquisition officer to do necessary sign on OUR behalf if needed. Hence, hereby agreed that, whatever OUR Power of Attorney will do will be binding to US only for administrative work of land acquisition purpose forever."

6. From a perusal of the clauses of the Power of

Attorney given by the petitioners, it is transpired

that the Power of Attorney holder is not authorized

to receive payment though the assertion is that the

payment of compensation can be deposited in the

account of one of the landowner or owners account.

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7. It seems that for this reason, the Competent

Authority, namely, respondent No.2 has issued the

communication dated 15.03.2023 to the Power of

Attorney holder to provide joint bank account of all

the co-tenure holders of the land in question, to

process the request of payment/disbursement in

accordance with law.

8. Proceeding further, we may record the contention

of the learned counsel for the petitioners that only

one out of fourteen petitioners, namely, petitioner

No.14 holds a bank account within the territory of

India. The contention of the learned counsel for the

petitioners is that they are not in a position to

open a joint bank account as all of them reside in

USA and it is not possible for them to come to India

together to open a joint bank account.

9. Taking note of the above contentions, we have

proposed to the counsel for the petitioners to file

affidavits of each of the petitioners before the

Competent Authority, mentioning their share in the

property in question, appending the documents of

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their title, with a categorical statement with regard

to transfer of compensation amount to the extent of

their share, in the bank account of petitioner No.14,

namely, Mr.Yakub Mohamed Patel. We may note that none

of the petitioners have responded to the notice dated

15.03.2023 and the response is at the hands of the

Power of Attorney holder. The reply given by the

Power of Attorney holder to the notice dated

15.03.2023 stating that he can give undertaking on

behalf of the petitioners cannot be accepted. Having

perused the conditions of the limited power of

attorney given in favour of the holder, through whom

the present proceedings are being pursued, we find

that the Power of Attorney holder is not in a

position to make any statement with regard to the

transfer of compensation amount in the bank account

of petitioner No.14, on behalf of the petitioners

herein.

10. We, therefore, dispose of the present writ

petition with the observations that each of the

petitioners herein shall file their personal

affidavit before the Competent Authority, namely,

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respondent No.2 through their Power of Attorney

holder to give the details as noted above. In case

such affidavits are filed, the Competent Authority,

namely, respondent No.2 shall deal with the same

strictly in accordance with law and take a decision

in the matter of disbursement of enhanced

compensation to the petitioners to the extent of

their share in the land in question. Respondent No.2

is directed not to insist for opening of the joint

account of twenty-eight land holders (including

fourteen petitioners herein), inasmuch as, any such

exercise does not seem feasible. However, the

Competent Authority is mandated to follow proper

procedure in the matter of disbursement of

compensation, to all the co-tenure holders to the

extent of their share in the lands in question.

11. With the above observations and directions, the

writ petition stands disposed of. Direct service is

permitted.

(SUNITA AGARWAL, CJ )

(ANIRUDDHA P. MAYEE, J.) GAURAV J THAKER