Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Kasharaji Rupsang Jadeja vs State Of Gujarat & 2 on 13 March, 2015

Author: Ks Jhaveri

Bench: Ks Jhaveri, A.G.Uraizee

         C/SCA/17809/2014                                       ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            SPECIAL CIVIL APPLICATION NO. 17809 of 2014
============================================================
====
            KASHARAJI RUPSANG JADEJA....Petitioner(s)
                            Versus
             STATE OF GUJARAT & 2....Respondent(s)
================================================================
Appearance:
MR DILIP B RANA, ADVOCATE for the Petitioner(s) No. 1
MR RAKESH PATEL, ASST GOVERNMENT PLEADER for the Respondent(s)
No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2- 3
================================================================

         CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
                and
                HONOURABLE MR.JUSTICE A.G.URAIZEE

                              Date : 13/03/2015


                               ORAL ORDER

(PER : HONOURABLE MR.JUSTICE KS JHAVERI)

1. The petitioner by way of the present petition has prayed for restraining the respondents from taking away the possession of the agricultural land being Survey No. 476 admeasuring 01 Hectar, 19 Are & 38 sq. mts in the sim of village Moti Khavdi, Jamnagar and to prohibit the respondents from proceeding further in pursuance of the Old Act, 1894 as per the award published on 12.12.1994.

2. It is the case of the petitioner that the Special Land Acquisition Officer published a notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Page 1 of 5 C/SCA/17809/2014 ORDER Act') on 15.02.1993 and notification under section 6 on 15.02.1994. Thereafter the award under section 11 of the Act was published by the Officer in LAQ Case No. 8/1993 on 12.12.1994 and accordingly the name of respondent no. 3 was inserted in the revenue record.

3. Mr. Rana, learned advocate for the petitioner submitted that the possession of the land in question is not taken by the authority from the petitioner under the acquisition proceedings and that therefore the respondent - authority has no right to claim the land in question acquired by the authorities. He submitted that the continuation of the proceedings under the Old Act is without authority of law. In support of his submissions, Mr. Rana has relied upon a decision of the Apex Court in the case of Raghbir Singh Sherawat vs. State of Haryana reported in 2012 AIR SCW 240 wherein it is held that paper possession is not sufficient for land to vest in State and that actual physical possession has to be taken.

4. Mr. Rakesh Patel, learned AGP appearing for respondent State submitted that the petitioner has challenged the acquisition of the year 1994 in the year 2014 and therefore there is a gross delay and no explanation for the same has come forth. He submitted that after passing the award under section 11 of the Act, the authorities have taken over possession of the land and handed the same to the acquiring body and accordingly the name of respondent no. 3 was mutated in the revenue record. He submitted that the panchnama in this regard was already drawn and the same had not been disputed or challenged for these many years.

He submitted that this is a case of encroachment and therefore this Court may not interfere in the present proceedings. In support of his submissions, Mr. Patel has relied upon a decision of the Apex Court in the case of State of Maharashtra vs. Digambar reported in (1995) 4 SCC 683 wherein the Apex Court has held as under:

"24. Since we have held earlier that the person seeking grant of relief under Article 226 of the Constitution, even if it be against the State, is required to satisfy the High Court that he was not guilty of laches or undue delay in approaching it for relief, need arises for us to consider whether respondent in the present appeal (writ petitioner in the High Court) who had sought for relief of compensation on the alleged infringement of his legal right, had satisfied the High Court that he was not guilty of undue delay or laches in approaching it for relief. The allegation of the petitioner in the writ petition, as becomes clear from the judgment under appeal, was that although certain extent of his land was taken away in the year 1971-72 by the agency of the State for the scarcity relief road works undertaken by the State Government in the year 1971-72, to find work for small agriculturists and agricultural labourers in the then prevailing severe drought conditions, without his consent, he was not compensated therefor, despite requests made to the State Government and various agencies in that regard eversince till the date of filing of the writ petition by him.

25. In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occured between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in Page 3 of 5 C/SCA/17809/2014 ORDER relation to an event said to have occured 20 years earlier, and the State's non- compliance with petitioners' demands, State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its governmental functions. Undue delay of 20 years on the part of the writ petitioner, in invoking the High Court's extraordinary jurisdiction under Article 226 of the Constitution for grant of compensation to his land alleged to have been taken by the Governmental agencies, would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it. "

5. Heard learned advocates for both the sides. Going by the records of the case, it is clear that there is a delay of around 21 years in challenging the acquisition proceedings. The name of the acquiring body i.e. Bharat Petroleum Corporation Ltd. came to be mutated in the revenue record on 18.01.1995 which is after passing of the award under section 11 of the Act. The petitioner has never objected to or challenged the mutation entry and the panchnama. Therefore, after such a long period it shall not be open for the petitioner to contend that he is in legal possession of the land in question. The petitioner is not in a position to point that the land acquisition proceedings were not carried out in accordance with law. We have gone on the basis of the documents and affidavit produced by the competent authority in this regard.

6. In the premises aforesaid, petition being devoid of merit is dismissed. Notice is discharged.

(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 5 of 5