Gujarat High Court
Ismailbhai Nurbhai Bhadarka & 4 vs State Of Gujarat on 11 August, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/14969/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14969 of 2016
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
ISMAILBHAI NURBHAI BHADARKA & 4....Petitioner(s)
Versus
STATE OF GUJARAT, GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION
& 2....Respondent(s)
=============================================
Appearance:
MR PERCY KAVINA, SR. ADVOCATE with MR VINOD M GAMARA, ADVOCATE for the
Petitioner(s) No. 1 5
MR NILESH J GOSAI, ADVOCATE for the Petitioner(s) No. 1 5
MR DHAWAN JAYSWAL, ASSISTANT GOVERNMENT PLEADER for Respondent(s) No. 1 3
MR RD DAVE, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2 3
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 11/08/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India, the petitioners claiming to be the heirs and legal representatives of the original land owner has prayed for an appropriate writ, direction and order for the following reliefs.
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"(B) HON'BLE COURT be pleased to issue a writ of certiorari, or a writ in the nature of Mandamus, or any other appropriate writ, order or direction for quashing and setting aside the impugned communication by the Respondent No. 1 i.e. Gujarat Industrial Development Corporation in no. Ka. Ni. / Jamin / Pra. Pa. / 350 dated 05/03/2016 and be please be further to declared acquisition proceedings laps in view of provision 24 of the Right to Fair Compensation and Transarency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;
(C) HON'BLE COURT be pleased to pending the hearing and final disposal of this petition, to stay the implementation, operation and execution of the impugned communication by the Respondent No.1 i.e. Gujarat Industrial Development Corporation in no. Ka. Ni./Jamin / Pra. Pa./ 350 dated 05/03/2016;
(D) HON'BLE COURT be pleased to direct the respondents and concern authority to release the land in favor of present applicants and be pleased to further directed to maintained the status quo exists as on today and revenue record may not be change qua the disputed lands and respondents may not create any third party right in the interest of justice;"
[2.0] The facts leading to the present Special Civil Application in nut shell are as follows:
[2.1] That the land bearing revenue survey No.1908 of village Prabhash Patan, Taluka Veraval, District Gir Somnath admeasuring 32375 sq. meter (hereinafter referred to as "land in question") came to be acquired under the provisions of Land Acquisition Act, 1894 (hereinafter referred to as "Act, 1894") for the Gujarat Industrial Development Corporation (hereinafter referred to as "GIDC"). That the Notification under Section 4 of the Act, 1894 came to be issued and published on 23.07.1975 / 28.08.1975. Thereafter, the objections were invited and after following due procedure required under Section 5(a) of the Act, 1894, Notification under Section 6 of the Act, 1894 was issued and published on
02.11.1976. That thereafter the owner of the land in question was Page 2 of 11 HC-NIC Page 2 of 11 Created On Tue Aug 22 00:14:10 IST 2017 C/SCA/14969/2016 JUDGMENT served with the notice under Section 9 of the Act, 1894. At this stage it is required to be noted that on the record of right name of Shri Ghanchi Noorhasan Bhadarka was shown as occupant of the land and therefore he was given the notice to file his claim. From the award declared it appears that by application dated 21.06.1978 he claimed full compensation amount. It appears that in response to the general notice / public notice, the mother of the petitoners herein - wife of Ghanchi Noorhasan Bhadarka - Bai Fatima, by her applications dated 25.11.1976, 05.10.1977, 10.10.1977 and 15.12.1977 declared that her husband Shri Noorhasan Bhadarka has left her and her 5 children from last 5 years; that he is a man of unbalanced mind and is not coming to the village at all. She also stated that the land in question was in her possession till its possession has been taken by the Government. Therefore, she claimed the compensation with respect to the acquired land in question for maintaining herself and her 5 children as her husband has not given a pie for the maintenance. That thereafter a consent award came to be passed / declared by the Special Land Acquisition Officer and therefore, the Special Land Acquisition Officer directed to pay the compensation at the rate of Rs.18,532/ per Hectare including the solatium. However, as there was a dispute with respect to the apportionment of the amount of compensation between the original land owner - Ghanchi Noorhasan Bhadarka and his wife Bai Fatima and her children and therefore, the Special Land Acquisition Officer was of the opinion that a reference under Section 30 of the Act, 1894 is required to be made for apportionment of the compensation between them and therefore, while declaring the award under Section 11 of the Act, 1894, the Special Land Acquisition Officer directed that the reference should accordingly be made under Section 30 to the District Court, Junagadh by depositing full compensation amount in the name of "District Judge, Junagadh". Thus, accordingly, the full amount of compensation has been deposited with the Reference Court - District Page 3 of 11 HC-NIC Page 3 of 11 Created On Tue Aug 22 00:14:10 IST 2017 C/SCA/14969/2016 JUDGMENT Court, Junagadh. Thus, the possession of the land in question was already taken over by the State Government / GIDC and even the amount of compensation was deposited with the concerned Reference Court - District Court, Junagadh. It appears that thereafter the acquired land was pleaded in different plots and they also came to be alloted to the concerned allottees. At that stage the GIDC approached the revenue authority to mutate their names in the revenue record on the basis of the acquisition proceedings which were completed in the year 197576 and at that stage the power of attorney holder of the petitioners raised objection against mutation entry on the ground that they are not aware about the acquisition of the land and that the amount of compensation has not been paid. Simultaneously, vide representation / application dated 20.07.2015, the power of attorney holder of the petitioners approached the Chairman / Managing Director of the GIDC to cancel the allotment and in the alternative to pay the compensation as per the new guidelines alleging inter alia that the land in question has not been acquired and that the compensation with respect to the acquired land in question has not been paid. That thereafter further representation was made on 21.07.2016. That thereafter vide impugned communication dated 05.03.2016, the power of attorney holder of the petitioners is informed that the land in question has already been acquired under the provisions of the Act, 1894 and for which even the consent award was declared and at the relevant time the Special Land Acquisition Officer has also paid the amount of compensation and even thereafter the plots are alloted, the request cannot be granted. That thereafter the present petitioners claiming to be the heirs and legal representatives of the original land owner have preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs.
[3.0] Shri Percy Kavina, learned Senior Advocate has appeared on behalf of the petitioners. Shri R.D. Dave, learned Advocate has appeared on behalf of the respondent No.1 - GIDC and Shri Dhawan Jayswal, Page 4 of 11 HC-NIC Page 4 of 11 Created On Tue Aug 22 00:14:10 IST 2017 C/SCA/14969/2016 JUDGMENT learned Assistant Government Pleader has appeared on behalf of the respondent Nos.2 and 3.
[4.0] An affidavit in reply is filed on behalf of the respodnent - GIDC submitting and stating that the land in question has been acquired as far as back in the year 1976 and even the consent award was declared under Section 11(2) of the Act, 1894 on 21.06.1978 and that as the dispute had arisen with respect to the apportionment of the compensation as there was a dispute between the original land owner - Ghanchi Noorhasan Bhadarka and his wife, the amount of compensation was deposited in the District Court, Junagadh - Reference Court. It has also been pointed out that even the possession of the land in question was taken over in the year 1976 which even Bai Fatima - wife of Ghanchi Noorhasan Bhadarka admitted and so recorded in the award. It is also pointed out that after the land in question came to be acquired and the same vested into the acquiring body - GIDC, the same is plotted in different plots and the said plots are even allotted to different allottees.
[5.0] Shri Kavina, learned Counsel appearing on behalf of the petitioners has submitted that as such the socalled consent award dated 21.06.1978 cannot be said to be a consent award as considering the provisions of the Act, 1894, there was no written agreement between the original land owner and the acquiring body and therefore, the so called consent award cannot be said to be a consent award in the eye of law. It is further submitted that even the amount of compensation has not been paid and as such the same could not have been deposited in the Reference Court as no reference was pending before the Reference Court and therefore, subsection (2) of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "Act, 2013").
Making above submissions it is requested to allow the present Page 5 of 11 HC-NIC Page 5 of 11 Created On Tue Aug 22 00:14:10 IST 2017 C/SCA/14969/2016 JUDGMENT petition and grant the reliefs as prayed for.
[6.0] Present petition is vehemently opposed by Shri R.D. Dave, learned Advocate appearing on behalf of the respondent No.1 - GIDC and acquiring body as well as Shri Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the respondent - State Authorities.
[6.1] It is vehemently submitted by Shri Dave, learned Advocate appearing on behalf of the respondent - GIDC that as such in the facts and circumstances of the case, subsection (2) of section 24 of the Act, 2013 shall not be applicable inasmuch as the possession of the acquired land has already been taken over in the year 1976 and since then the GIDC - acquiring body is in possession of the acquired land in question and that the amount of compensation as per the award declared under Section 11 of the Act, 1894 has been deposited with the concerned Reference Court - District Court, Junagadh. It is submitted that as such as at the relevant time when the award was declared, there was dispute amongst the husband and wife i.e. the original land owner and his wife with respect to the apportionment of the amount of compensation and therefore, the amount of compensation was directed to be deposited with the Reference Court - District Court, Junagadh and accordingly, the same has been deposited. It is submitted that therefore the twin conditions as mentioned in subsection (2) of section 24 of the Act, 2013 are not satisfied and therefore, subsection (2) of section 24 of the Act, 2013 shall not be applicable.
[6.2] Now, so far as the submission on behalf of the petitioners that the award dated 21.06.1978 under Section 11(2) of the Act, 1894 cannot be said to be a consent award as nothing is on record that there was any written agreement between the original land owner and the acquiring body is concerned, it is vehemently submitted by Shri Dave, learned Page 6 of 11 HC-NIC Page 6 of 11 Created On Tue Aug 22 00:14:10 IST 2017 C/SCA/14969/2016 JUDGMENT Advocate appearing on behalf of the respondent - GIDC and Shri Jayswal, learned Assistant Government Pleader that as such in the present petition the dispute is not whether the award dated 21.06.1978 can be said to be consent award or not. It is submitted that as such the legality and validity of the award dated 21.06.1978 is not the subject matter of present petition. It is submitted that even otherwise as the award has been declared in the year 1978, at no point of time the petitioners have challenged the legality and validity of the award. It is submitted that even in the present petition also, no such prayer is there.
[6.3] It is further submitted that even otherwise considering the provisions of the law at the relevant time more particularly which was applicable in the State of Gujarat for passing the consent award, written agreement was not required. It is submitted that as per the provisions of the Land Acquisition Act (Gujarat Unification and Amendment) Act, 1963, as per section 10 of the Amended Act, by which section 11 of the Act, 1894 was amended, if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appear before him are agreeable to the award which he proposes to make under Section 11, the Collector may without making further inquiry require such persons to execute an Agreement in the format prescribed by the State Government and make an award according to the terms of such Agreement. It is submitted that thus aforesaid procedure was followed by the Special Land Acquisition Officer at the relevant time.
[6.4] It is submitted that therefore, considering the aforesaid facts and circumstances, when the possession of the land in question was already taken over and the amount of compensation was tendered and deposited in the Court / Reference Court / District Court under subsection (2) of Section 24 of the Act, 2013 shall not be applicable. It is submitted that as such subsequently after the land in question has been acquired the same is plotted in different plots and even the different plots are allotted Page 7 of 11 HC-NIC Page 7 of 11 Created On Tue Aug 22 00:14:10 IST 2017 C/SCA/14969/2016 JUDGMENT to the concerned allottees.
Making above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of Tukaram Kana Joshi and Ors. vs. Maharashtra Industrial Development Corporation and Ors. reported in (2013) 1 SCC 353, it is requested to dismiss the present petition.
[7.0] Heard learned Counsel appearing on behalf of the respective parties at length.
At the outset it is required to be noted that by way of this petition under Article 226 of the Constitution of India the petitioners herein through power of attorney claiming to be the heirs and legal representatives of the original land owner have prayed to quash and set aside the impugned communication by respondent No.1 - GIDC dated 05.03.2016 and also to declare that the acquisition proceedings have lapsed in view of subsection (2) of section 24 of the Act, 2013.
[7.1] Having heard learned Counsel appearing for respective parties and considering the material on record it appears that as such the acquired land in question has been acquired under the provisions of the Act, 1894 in the year 1974/1976. Even the award under Section 11 of the Act, 1894 has been declared in the year 1978. Before the Special Land Acquisition Officer, mother of the petitioners - wife of the original land owner appeared and claimed the amount of compensation. The original land owner also claimed the amount of compensation. Therefore, while declaring the award and determining the amount of compensation which as such was agreed compensation, the Special Land Acquisition Officer directed to deposit the amount of compensation in the Reference Court as there was a dispute with respect to apportionment and the reference under Section 30 was required to be made. Accordingly, in the year 1978 itself the amount of compensation was tendered / deposited with the concerned District Court / Reference Court. Therefore, on taking over the possession by the acquiring body and on payment / tendering Page 8 of 11 HC-NIC Page 8 of 11 Created On Tue Aug 22 00:14:10 IST 2017 C/SCA/14969/2016 JUDGMENT the amount of compensation with the District Court / Reference Court it can safely be said that the acquisition has completed and that the land in question absolutely vested in the acquiring body, as per section 16 of the Act, 1894. The fact that the possession was already taken over by the GIDC was not even disputed by the mother of the petitioners who stated before the Special Land Acquisition Officer that till the possession of the acquired land has been taken over, she was in possession. Meaning thereby she candidly admitted that the possession of the land in question has been taken over. Even otherwise and considering the material on record it is established and proved that the possession of the land in question was already taken over in the year 1978. It appears that even thereafter the acquired land in question has been plotted in different plots and the same are even allotted to the concerned allottees. As there was a dispute between the original land owner and his wife with respect to apportionment of the compensation, the Special Land Acquisition Officer directed to deposit the amount of compensation with the Reference Court - District Court, Junagadh which has been deposited. Therefore, considering the decision of the Hon'ble Supreme Court in the case of Tukaram Kana Joshi & Ors. (Supra) and considering section 31 of the Act, 1894, tendering / depositing the amount of compensation with the concerned District Court / Reference Court can be said to be a valid tender and therefore, subsection (2) of Section 24 of the Act, 2013 upon which the reliace has been placed shall not be applicable.
[7.2] It cannot be disputed that for invoking subsection (2) of section 24 of the Act, 2013, the twin conditions viz. (1) that after the award has been declared, possession of the acquired land has not been taken over or (2) the amount of compensation has not been tendered / paid in accordance with the provisions of the Act, 1894. In the present case none of the aforesaid conditions are satisfied and/or fulfilled. Under the circumstances, as such subsection (2) of section 24 of the Act, 2013 shall not be applicable and therefore, it cannot be said that the Page 9 of 11 HC-NIC Page 9 of 11 Created On Tue Aug 22 00:14:10 IST 2017 C/SCA/14969/2016 JUDGMENT acquisition proceedings have been lapsed considering subsection (2) of section 24 of the Act, 2013.
[7.3] Now, so far as the submission on behalf of the petitioners that th award under Section 11 of the Act, 1894 which was declared in the year 1978 by the Special Land Acquisition Officer cannot be said to be a consent award is concerned, at the outset it is required to be noted that as such the legality of the award under Section 11 of the Act, 1894 is not the subject matter of the present petition. Even no such case is stated in the petition. Even though the award has been declared in the year 1978, at no point of time either the original land owner and/or the wife of the original land owner and/or even the petitioners disputed the award. Even in the award itself the Special Land Acquisition Officer has specifically stated that the "interested persons have given their statement that they are willing to accept the compensation as per the consent rate offered by the Gujarat Industrial Development Corporation". The Special Land Acquisition Officer has also noted that "the interested persons having shown their willingness to agree to the valuation of Rs.18,532/ per hectare", the valuation is fixed accordingly. It appears that therefore the same can be said to be consent award as per the law prevailing in the State of Gujarat more particularly amendment to Section 11 of the Act, 1894 applicable in the State of Gujarat. In any case as observed hereinabove, subsection (2) of Section 24 of the Act, 2013 shall not be applicable at all. It appears that only with a view to get the disadvantage of the provisions of Act, 2013, the petitioners have come out with a case that the land in question has not been acquired and that the compensation has not been paid, which is just contrary to the real facts so stated in the affidavit in repy filed on behalf of the GIDC.
[8.0] In view of the above and for the reasons stated above, there is no substance in the present petition and the same deserves to be dismissed and is, accordingly, dismissed.
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At this stage, Shri Kavina, learned Counsel appearing on behalf of the petitioners has requested to make suitable observation that it will be open for the petitioners claiming to be the heirs and legal representatives of the original land owner to approach the Reference Court / Court before whom the amount of compensation was deposited permitting them to withdraw the amount of compensation. Therefore, it is observed that as and when the petitioners claiming to be the heirs and legal representatives of the original land owner approach the concerned Court before whom the amount of compensation has been deposited, such application be considered in accordance with law and on its own merits for which we have not expressed anything on merits. With the aforesaid observations, present petition stands dismissed. Notice is discharged. No costs.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 11 of 11 HC-NIC Page 11 of 11 Created On Tue Aug 22 00:14:10 IST 2017