Gujarat High Court
Navinchandra Dolatray Nayak vs Asha R Shah on 13 February, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2354 of 2024
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NAVINCHANDRA DOLATRAY NAYAK
Versus
ASHA R SHAH
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Appearance:
MR RIDDHESH TRIVEDI(6581) for the Petitioner(s) No. 1
MR KRUTIK PARIKH AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 13/02/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. The instant petition is directed against the judgment and
order dated 8.2.2023 passed by the learned 11 th Additional
District Judge, Surat in Misc. Civil Application No.74 of 2010
whereby the additional list of documents submitted by the
petitioner herein has been dealt with in the order of the learned
Trial Court in the following manner:-
"8. In this regard, if we peruse the entire application which is filed
by the applicants then no documentary evidence whatsoever is
produced by the applicants to show that the price of the subject land
was Rs.5,000/- per sq. mt. at any given point of time. All that the
applicants have produced along with the list at Exhibit-3 is the copy of
award, the Village Form 7/12 extract and xerox copy of sale deed of
ancestral property. It further appears that vide Exhibit-14, the
applicants have produced additional list of documents wherein, report
from the Sugarcane Co.Op. Society for the year 2009-10 and Jantry
Valuation is produced. The said report of Sugar Co.Op. is basically is in
relation to crop compensation. As observed hereinabove, the said
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aspect is not required to be determined by this Court. Further, as per
the Jantry produced by the applicant himself, it appears that value of
the land is less than Rs.2,000/- sq. mt. and hence, it cannot be said
that Competent Authority has undervalued the land. Thus, the rate
fixed by the Competent Authority cannot be said to be arbitrary or on
lesser side. No evidence worth the name is produced by the applicants
to show that the valuation of land as determined by the Competent
Authority is unreasonable or inadequate and is required to be
enhanced."
2. The learned Trial Court while determining the market
value, at the relevant point of time, had rejected the prayer made
by the petitioner for enhancement in compensation for right of
user of the land in question. This order is being challenged with
the contention by the learned counsel for the petitioner that once
the matter was remanded by this Court vide judgment and order
dated 2.8.2017 in a bunch of writ petitions filed by the Indian
Oil Corporation Limited ["IOC" for short] as also the petitioner
herein, it was not open for the petitioner to lead additional
evidence as direction in the aforesaid decision of the Division
Bench of this Court is to decide the claim for compensation
afresh. Reference has been made to the observations made in
para '11.00' of the judgment and order dated 2.8.2017 to
contend that the matter was remanded to the learned District
Court, Surat to decide the applications afresh and to pass
appropriate reasoned and speaking order in accordance with law
and on merits. It is contended by the learned counsel for the
petitioner that the petitioner had claimed crop compensation in
the original applications preferred under Section 10 of the
Petroleum and Minerals Pipelines (Acquisition for Right of User
in Land) Act, 1962 ["Act of 1962" for short] which was initially
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not adjudicated in a proper manner. No crop compensation has
been granted to the petitioner herein. The writ petition filed by
the petitioner seeking to challenge the order passed by the
learned District Judge dated 30.4.2016 was registered as Special
Civil Application No.5476 of 2017. Another set of writ petitions
has been filed by the IOC challenging the determination of
compensation for the land in question at the market price of
Rs.5,000/- per sq. mt. Other tenure holders of the land in
question had also filed writ petitions challenging non-award of
crop compensation to them. All the writ petitions arising out of
the judgment and order dated 30.4.2016 were decided together
by common judgment and order dated 2.8.2017, findings therein
are to be noted hereinunder:-
"9.01. So far as Special Civil Application Nos.17382/2016 to 17419/2016
preferred by the IOC challenging the impugned orders passed by the
learned 4th Additional District Judge, Surat, passed in respective
Misc.Civil Applications are concerned, considering the impugned orders
passed by the learned appellate court, it appears that without discussing
any evidence on record and/or without assigning any reasons, the learned
Judge has directed to pay compensation for right of user considering the
market value at Rs.5000/- per sq.mtr. The impugned orders passed by the
learned Judge determining the compensation for right of user considering
the market value at Rs.5000/- per sq.mtr. are absolutely non-speaking and
nonreasoned orders, which cannot be sustained. On what basis and/or
evidence and/or material the learned Judge has considered the market
value of the land in question at Rs.5000/- per sq.mtr. is not at all
forthcoming. Even the learned advocate appearing on behalf of the original
claimants is also not in a position to satisfy the Court on what basis /
material / evidence, the learned appellate Court has considered the market
value of the land in question at Rs.5000/- per sq.mtr. Under the
circumstances, the impugned orders passed by the learned 4th Additional
District Judge, Surat in the respective Misc.Civil Applications determining
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the compensation for right of user considering the market value of the land
at Rs.5000/- per sq.mtr. deserve to be quashed and set aside and the
matters are required to be remanded to the learned appellate court /
District Court to consider the respective Misc.Civil Applications afresh in
accordance with law and on merits and considering the material already
on record.
10.00. Nos so far as Special Civil Application Nos.5463/2017 to
5471/2017 & 5473/2017 to 5481/2017 preferred by the original
claimants with respect to crop compensation are concerned, it is the case
on behalf of the original claimants that in some of the cases they submitted
amendment applications to amend their Misc.Civil Applications and
claimed compensation with respect to crop compensation also, however,
while passing the impugned orders, the learned Judge without deciding
the amendment applications, has passed the impugned orders, by which
the claim of the original claimants for crop compensation has not been
dealt with and/or considered. However, from the material on record, it
does not seem to be in dispute that only in four cases namely in Special
Civil Application Nos.5465/2017, 5466/2017, 5469/2017 and
5478/2017, amendment applications were submitted in Misc.Civil
Application Nos.57/2010, 55/2010, 50/2010 and 54/2010, respectively.
It is not in dispute that so far as other Misc.Civil Applications are
concerned, no such amendment applications claiming crop compensation
were submitted and therefore, in those cases there is no question of
considering the issue with respect to crop compensation. Under the
circumstances, while disposing of the aforesaid four Special Civil
Applications, it is directed that on remand the learned appellate court /
District Court also to consider the amendment applications already
submitted in Misc.Civil Application Nos.57/2010, 55/2010, 50/2010 and
54/2010 and consider the question with respect to crop compensation in
those four cases only.
11.00. In view of the above and for the reasons stated above, Special Civil
Application Nos.17382/2016 to 17419/2016 preferred by the IOC are
hereby allowed and the impugned orders passed in respective Misc. Civil
Application Nos.35/2010 to 39/2010, 43/2010 to 58/2010, 63/2010 to
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65/2010, 67/2010 to 76/2010 and 113/2010 to 116/2010 are hereby
quashed and set aside and the matters are remanded to the learned
appellate court / District Court, Surat to decide the aforesaid Misc.Civil
Applications afresh and to pass appropriate reasoned and speaking orders
in accordance with law and on merits and considering the material /
evidence on record. Rule is made absolute accordingly in the aforesaid
Special Civil Applications.
11.01. In view of the above and for the reasons stated above, Special Civil
Application Nos.5463/2017 to 5471/2017 & 5473/2017 to 5481/2017
preferred by the original claimants are hereby dismissed except Special
Civil Application Nos.5465/2017, 5466, 5469 and 5478/2017 and rule is
discharged accordingly and Special Civil Application Nos.5465/2017,
5466/2017, 5469/2017 and 5478/2017 are remanded to the learned
appellate court / District Court Surat to consider the amendment
applications, if any, with respect to crop compensation and and claim of
the original claimants in Misc.Civil Application Nos.57/2010, 55/2010,
50/2010 and 54/2010 only, wherein amendment applications were
reported to be preferred with respect to crop compensation, in accordance
with law and on merits and considering the material on record. With this,
Special Civil Application Nos.5465/2017, 5466/2017, 5469/2017 and
5478/2017 are disposed of. Rule is made absolute accordingly in Special
Civil Application Nos.5465/2017, 5466/2017, 5469/2017 and 5478/2017
accordingly to the aforesaid extent only."
3. A careful reading of the reasoning given by the Division
Bench of this Court indicates that the Division Bench, while
allowing writ petitions filed by the IOC, had set aside the order of
the learned Additional District Judge, Surat remanding the
matter back with the direction to decide the Misc. Civil
Applications afresh and to pass appropriate reasoned and
speaking order in accordance with law and on merits after
considering the materials/evidence on record. However, the
Special Civil Application preferred by the petitioner herein has
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been dismissed. The claim of the petitioner, in our considered
opinion for non-grant of crop compensation has, thus, stand
rejected with the dismissal of the writ petition.
4. In so far as the remand on the writ petitions filed by the
IOC is concerned, relevant is to note that the dispute was with
regard to the application of market value at the rate of
Rs.5,000/- per sq. mt. It was noted by the Division Bench that
the learned Judge determining the compensation for right of
user considering the market value at the rate of Rs.5,000/- per
sq. mt., had passed an absolutely non-speaking and non-
reasoned order, which cannot be sustained. It could not be
indicated as to what evidence or material was considered by the
learned Judge to consider the market value of the land in
question at Rs.5,000/- per sq. mt. From the observations in para
'10.00', '11.00' and '11.01' of the judgment and order dated
2.8.2017, it can, thus, be ascertained that the claim of crop
compensation with respect to the petitioners in all the four writ
petitions, description of which is given in para '10.00' of the said
decision, had been directed to be considered afresh. The claim of
the petitioner herein, as noted above, for non-payment of crop
compensation stood rejected with the dismissal of the writ
petition filed by him.
5. In so far as the remittal of the matter is concerned, from
the observations in para '11.00' of the said decision, it is evident
that the remittal was to consider the material/evidence on
record. The order impugned, subject matter of challenge herein,
categorically records that the remittal was confined to the
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controversy relating to the amount of compensation to be
awarded by the competent authority. It further records that so
far as the issue of crop compensation is concerned, the same has
attained finality in view of the order passed by the High Court
and only in four petitions, amendment applications for crop
compensation have been considered.
6. Having extensively gone through the judgment and order
dated 2.8.2017, we do not find any error in the said conclusion
drawn by the learned District Judge in rejecting the claim of the
petitioner for fresh consideration in the matter of non-payment
of crop compensation. The application moved by the petitioner
seeking for production of additional evidence of Village Form
7/12 extract, Village Form 8/A report from the Sugarcane
Co.Op. Society for the year 2009-10 and Jantry Valuation has,
thus, rightly been rejected noticing that no documentary
evidence whatsoever has been produced by the applicant to show
that the price of the subject land was Rs.5,000/- per sq. mt. at
any given point of time.
7. Other contentions raised by the petitioner including other
applicants that the area is highly developed and several
amenities have also been considered and it was noted that said
aspects which pertain to determination of compensation under
the Land Acquisition Act cannot be considered in the instant
case, which only requires determination of compensation in the
matter of right of user. The aspects of compensation to be
determined under the Land Acquisition Act cannot be applied as
compensation for right of user to a land.
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8. Taking note of the above and upon perusal of the award, it
was held that the competent authority had duly applied his mind
and considering all the aspects of the matter had passed the
award, which is found to be reasonable and in absence of any
evidence to the contrary, the determination by the competent
authority cannot be said to be faulty.
9. It is further relevant to note that the Jantri produced by
the applicant itself shows that the valuation of the land was less
than Rs.2,000/- per sq. mt., which is duly considered in para '8'
extracted hereinabove. In the said scenario, we do not find any
infirmity in the order passed by the learned District Judge in
dismissing the application moved by the petitioner seeking for
re-determination of compensation by considering additional
evidence which were sought to be produced on record in the
shape of Jantri value filed by the applicant herein.
For the aforesaid, the writ petition is being dismissed
found devoid of merits.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
