Gujarat High Court
Ambubhai Naranbhai Patel vs Competent Authority, National Highway ... on 14 October, 2019
Author: V.P. Patel
Bench: S.R.Brahmbhatt, V.P. Patel
C/SCA/467/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 467 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 443 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 2848 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 2862 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4353 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4359 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 7459 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 7460 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 7458 of 2019
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AMBUBHAI NARANBHAI PATEL
Versus
COMPETENT AUTHORITY, NATIONAL HIGHWAY AUTHORITY OF INDIA
AND SPECIAL LAND ACQUISITION OFFICER
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Appearance:
for the Petitioner(s) No. 2,3,4,5,6
MR AJ YAGNIK(1372) for the Petitioner(s) No. 1
MS. MANISHA LAVKUMAR GOVERNMENT PLEADER with Mr. Utkarsh
Sharma AGP (1) for the Respondent(s) No. 1,2
NANAVATI AND CO.(7105) for the Respondent(s) No. 1,3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 4,5
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL
Date : 14/10/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE V.P. PATEL) Rule.
1. Heard learned advocate Mr. A.J. Yagnik for the petitioner, leaned Page 1 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019 C/SCA/467/2019 ORDER advocate Mr. Nanavaty for the respondent Nos. 1 & 3, and learned Government Pleader Ms. Manisha Lavkumar for the respondent Nos. 2 &
4.
2. Learned advocate for the petitioner and respondent Nos. 1 & 3 have submitted their joint notes on the issues on which there is no dispute and broad consensus and accordingly urged the Court to dispose of these matters on the lines. The same is taken on record. The contents of the said notes is required to be noted hereunder and which reads as under:
"1. The present petitioners are farmers of nine Villages namely Nangal, Pungaam, Boedra, Hinglot, Adol, Kukkarwada, Munbar, Tarsadi and Dehgaam of District Bharuch whose land/s is/are acquired for the construction and widening of Vadodara-Mumbai Expressway under the National Highways Act, 1956 for which compensation has to be determined on and after 01.01.2015 in accordance with provisions of the RFCTLARR Act of 2013.
2. The present group of petitions have been filed raising common questions of law and intera alia, questioning the arbitrary, illegal and irrational fixation of multiplying factor as factor 1.00 for villages falling with Urban Development Authority or considered part of Area Development Authority. Paragraph 1 (V) raising issue qua the fixation of multiplication factor from the captioned petition/s is reproduced herein below for ready reference:
(V) The Act of 2013 mandates that in determination of compensation, the multiplier be fixed in the range between 1 to 2 based on the proximity of the concerned area from the urban area. Low market price of remotely located land from rural are requires provision for higher multiplier. This seems to be the object for provision of multiplier ranging from 1.00 (one) to 2.00 (two). However the state government has arbitrarily settled for multiplier 1.00 for all urban areas and multiplier 2.00 for all rural areas.
The captioned Petition/s have been filed praying for the following prayers:
Page 2 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019 C/SCA/467/2019 ORDER9. In view of above the Hon'ble Court may be pleased to exercise Writ Jurisdiction under Article 226 of the Constitution of India and issue Writ of Mandamus and/or Writ of Certiorari or any other appropriate Writ or pass order or direction in the nature of writ and thereby:
A. Your Lordships Be pleased to hold and declare that land acquisition award for Village Nangal annexed At ANNEXURE -A passed by respondent Competent Authority under Section 3G(1) of th National high ways Act, 1956, in connection with acquisition of land for construction of Vadodara-Mumbai Six/Eight Lane Expressway and to the extent of determination of compensation as illegal and unconstitutional an Be Further pleased to quash and set aside the impugned award only to the extent of manner and method in which the amount of compensation is determined and the actual amount is awarded without disturbing the entire land acquisition proceedings.
B. Your Lordships Be pleased to direct respondent Land Acquisition Officer, on remand of the award for limited extent as stated hereinabove, to determine the amount of compensation in the cases of petitioners afresh by taking into consideration the mandate of Section 26 of the Act of 2013 read with amended Rule 5 of the Gujarat Stamp (Determination of market Value of Property) Rules, 1984 as amended vide notification dated 21st march 2016 as well as implement the guidelines of respondent Ministry of Road, Transport and Highways issued in December, 2017 providing for comprehensive guidelines for land acquisition under the National Highways Act, 1956;
C. Be pleased to direct respondent Land Acquisition Officer, on remand of the award for limited extent as stated hereinabove, to provide opportunity in person and/or in writing to all the parties to make a representation with regard to issues raised in the present petition in the process of determining compensation as per the Schedule I, II and III of the Act of 2013 as a part of preparing and announcing the award as is provided in the National Highways Act, 1956.Page 3 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019 C/SCA/467/2019 ORDER
D. Your Lordships be pleased to direct the respondent Superintendent of Stamps and Inspector General of Registration to prepare the annual statement of rates as per the mandate of Rule 5 of the Gujarat Stamp [Determination of Market Value of Property] Rules, 1984 and after the due approval of the Department of Revenue, by an order, shall issue the same as per the mandate of Gujarat Stamp [Determination of Market Value of Property] Rules, 1984 as amended vide notification dated 21st March, 2016 and the same shall be made applicable which redetermining compensation for the petitioners herein in accordance with law.
E. Your Lordships be pleased to hold adn declare that the impugned award passed by the respondent Competent Authority without taking into consideration teh consideration set forth in instrument/s executed by the State Government, the Central Government, a local authority, Gujarat Housing Board, Gujarat Slum Clearance Board or Gujarat Industrial Development Corporation as mandated in proviso to Section 32A of the Gujarat Stamps Act, 1958 is illegal, bad in law and hence unconstitutional and Be further pleased to direct the respondent authority to take into consideration the consideration set forth in instrument/s executed by the State Government, the Central Government, a local authority, Gujarat Housing Board, Gujarat Slum Clearance Board or Gujarat Industrial Development Corporation as mandated in proviso to Section 32A of the Gujarat Stamps Act, 1958 and thereby redetermine the compensation in coherence with the mandate of proviso to Section 32A of the Gujarat Stamps Act, 2018.
EE. To hold and declare that appointment of District Collector as an arbitrator vide notification issued in February 2017 under Section 3G [5] of the National Highways Act, 1956, and annexed at ANNEXURE- H, after issuance of notification dated 28.08.2015 and Amendment in Section 12 read with amended Schedule 5 and Schedule 7 based on Arbitration and Conciliation (Amendment) Act 2015, suffers from conflict of interest, raises justifiable grounds with regard to impartiality and independence of the respondent Collector as an Arbitrator and the same is therefore violative of section 12 of the Arbitration and Page 4 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019 C/SCA/467/2019 ORDER Conciliation Act, 1996 (as amended in 2015) and runs contrary to the statutory obligation imposed on the Collector under Section 26 of the Act of 2013 and therefore illegal and unlawful and be further pleased to hold and declare the same as suffering from legal malafide discriminatory, irrational, arbitrary and therefore and violative of Articles 14, 19, 21 and 300A of the constitution of India and therefore unconstitutional;
AND Be further pleased to quash and set aside the appointment of respondent Collector as arbitrator under Section 3G(5) of the National Highways Act vide notification issued in February, 2017 at ANNEXURE - H;
EEE. To direct respondent no. 4, Central Government represented by Ministry of Road Transport and Highway to appoint a judicial officer not below the rank of District Judge, retired or a sitting or any other senior judicial officer as an arbitrator under Section 3G(5) of the National Highways Act, 1956 to arbitrate upon the dispute between respondent Competent Authority/Dy. Collector and the petitioners and similarly situated persons whose land are acquired for construction of Vadodara-Mumbai Six/Eight Lane Expressway following the mandate of Section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;
E1. During the pendency and final disposal of the present petition, be pleased to direct respondent No. 4, Central Government represented by Ministry of Road and Transport and Highway to appoint a judicial officer not below the rank of District Judge, retired or a sitting or any other senior judicial officer as an arbitrator under Section 3G(5) of the National Highways Act, 1956 to arbitrate upon the dispute between respondent Competent Authority/Dy. Collector and the petitioners and similarly situated persons whose land are acquired for construction of Vadodara-Mumbai Six/Eight Lane Expressway following the mandate of section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
E2. During the pendency and final disposal of the present Page 5 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019 C/SCA/467/2019 ORDER petition be pleased to stay the notification issued in February 2017 at Annexure-H appointing respondent Collector as an arbitrator u/s 3G[5] of the National Highways Act, 1956;
E3. During the pendency and final disposal of the present petition be pleased to stay arbitration proceedings being presided over by respondent Collector.
F. To pass any other and further reliefs that may be deemed fit and proper and in the interest of Justice and Equity.
AND FOR THIS ACTT OF KINDNESS AND JUSTICE THE PETITIONER AS IN DUTY BOUND SHALL FOREVER PRAY.
3. During the pendency of the present petitions a coordinate bench of this Hon'ble Court in Special Civil Application No. 8734 of 2019 and other cognate matters by a common judgment and order dated 12.09.2019 has quashed and set aside resolution dated 10.11.2016 of the respondent State of Gujarat whereby instead of factor 2.00 to be applied for villages for determination of compensation, factor 1.00 was directed to be made applicable for determination of compensation to be calculated under Section 26 of the RFCTLARR Act, 2013 and more particularly under Schedule I of the very Act to the Village which fall within Urban Development Area or considered part of Area Development Authority. The resolution dated 10.11.2016 was held to be ultra vires, illegal and unconstitutional in the context of Gujarat RFCTLARR Rules, 2017 and the Act of 2013 as amended by the State of Gujarat.
Another resolution of the State of Gujarat dated 11.09.2018 was quashed and set aside to the extent it was made prospective and thereby villages failing within Urban Development Area or considered part of Area Development Authority and thereby factor 2.00 was again reintroduced to be applied while determining compensation for the acquisition of land to the villages which were excluded vide resolution dated 10.11.2016 upto 11.09.2018. This Page 6 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019 C/SCA/467/2019 ORDER resolution dated 11.09.2018 was quashed and set aside for a limited purpose holding the same to ultra vires, illegal and unconstitutional in the context of Gujarat RFCTLARR Rules, 2017 and the Act of 2013 as amended by the State of Gujarat.
The coordinate bench at Paragraphs 19, 20 and 21 of the Judgment and order dated 12.09.2019 passed in Special Civil Application No. 8734 of 2019 and other cognate matters has directed applicability of factor 2.00 and not factor 1.00 for villages falling within Urban Development Area or considered part of Area Development Authority for determination of compensation and multiplication of market value as determined under Section 26(1) of the Act of 2013 with Factor 2.00 as per Section 26(2) and applying all other statutory benefits including solatium under Section 30(1), interest under Section 30(3) of the Act of 2013 and determine and pay such compensation with interest as prayed for.
4. In view of the above, Mr. Yagnik appearing for the petitioners states and submits that in the captioned group of petitions initially factor 2 was made applicable to all these villages which fall within the respective Urban Development Area or Area Development Authority and compensation was accordingly calculated and communicated. However on account of resolution dated 10.11.2016 the compensation was recalculated and factor 1.00 was applied on the ground that land of the petitioners are situated within the revenue limits of villages which fall within the respective Urban Development Area or Area Development Authority and therefore Factor 1 will be made applicable. Accordingly considering the land of the petitioner to be in the urban area, multiplying factor 1 was applied instead of 2.00 and two times the compensation instead of four was awarded which is under challenge in the present group of petitions. It is further stated and submitted that as the resolution dated 10.11.2016 is now set aside and resolution dated 11.09.2018 applying factor 2.00 is to the Villages falling within Urban Development Area or Area Development Authority is made applicable, leaving all the other questions of law open and reserving the liberty for the petitioners to file petitions in further raising other questions of law, these group of Page 7 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019 C/SCA/467/2019 ORDER petitions may disposed with a direction to the respondents and more particularly respondent Land Acquisition Officer and respondent National Highway Authority of India to recalculate amount of compensation by applying factor 2.00 instead of factor 1.00 and accordingly additional compensation based on the calculation within a period of three months from the date of the receipt of the writ.
5. Mr. Maulik Nanavati, learned Advocate appearing for the National Highways Authority of India has submitted that the National Highways Authority of India was not a party In SCA 8734 of 2018, and the decision of this Court in the said case is strictly binding on the Authority. He has, however, fairly submitted that if the Competent Authority while calculating the compensation in the impugned awards has treated some lands to be urban land by relying upon the notification dated 10.11.2016 then suitable direction may be given to the Competent Authority to recompute the compensation by treating the subject land to be rural or urban area depending upon its location, revenue record and other material or record. He has submitted that each land shall have to be individually examined by the Competent Authority and thereafter necessary re-computation may be done by him in accordance with law.
6. Mr. ....., learned AGP appearing for the Competent Authority, has contended that if the compensation has been computed by treating the land to be urban area by relying upon the notification which has now been set aside by this Court then necessary corrective steps may be directed and applying factor 2.00 compensation may be directed to be recalculated and awarded to the petitioners.
7. In the facts and circumstances stated hereinabove, all the petitions are disposed off with a direction to the Competent Authority to recalculate the compensation by applying the suitable multiplier factor in light of the decision of this Court after verifying the details of each land. The recalculated compensation may be awarded within a period of three months from the date of receipt of the writ. The impugned awards are quashed and set aside to the limited extent of determination of compensation by applying the appropriate multiplier factor. The other aspect of award Page 8 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019 C/SCA/467/2019 ORDER including the possession of land and issues of land acquisition will remain unaffected by the present order.
It is made clear that all other questions of law raised in the petition other than issue of multiplying factor are not pressed by the petitioners at this stage with a liberty to raise the same in future."
3. Learned advocate for the petitioner and the respondent authority have mainly relied upon the Paragraph Nos. 19, 20 & 21 of the judgment and order dated 12.09.2019 passed in Special Civil Application No. 8734 of 2019 and other cognet matters and requested to pass appropriate order in terms of joint note:
4. Learned Government Pleader for the State has submitted that the order passed by the coordinate Bench in Special Civil Application No. 8734 of 2019 with allied matters is under contemplation of the State Government, as to whether it is required to be challenge or not. If on challenging the said judgment and order any verification, modification or setting aside of the said judgment, if any, made by the higher forum the State Government be permitted to review the order.
5. Considering the averments made in joint note, ratio laid down in the judgment and order dated 12.09.2019 passed by the Co-ordinate Bench in SCA No. 8734 of 2019 and allied matters, we are of the considered view that the award passed by the competent authority is required to be modified. The competent authority is directed to recalculate the compensation by applying the suitable multiplier factor in light of the decision of this Court after verifying the details of each land. It is made clarified that the State Government may file review according to law, if required in light of submission of the State.
Page 9 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019 C/SCA/467/2019 ORDER6. In view of the above all these petitions are disposed of accordingly. Rule is made absolute.
(S.R.BRAHMBHATT, J) (V. P. PATEL,J) k. piyush Page 10 of 10 Downloaded on : Tue Nov 19 23:12:04 IST 2019