Gujarat High Court
Pirjada Rashidabibi Hisamuddin Saiyad vs State Of Gujarat & 2 on 1 May, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/SCA/5288/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5288 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 5292 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PIRJADA RASHIDABIBI HISAMUDDIN SAIYAD....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR CP CHAMPANERI, ADVOCATE for the Petitioner(s) No. 1
MR RAKESH PATEL [AGP In SCA No.5288/2015 to 5289/2015],
MR HARSHEEL SHUKLA [AGP In SCA No.5290/2015 to 5291/2015] And
MR BHARAT VYAS [AGP In SCA No.5292/2015] for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1 - 3
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C/SCA/5288/2015 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 01/05/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The matters are heard finally today. All these petitions involve common questions on law and facts and hence, they are decided by this common judgment.
2. Challenge in these petitions is to the order dated 01.10.2014 passed by respondentSpecial Land Acquisition Officer by which the respondentauthority refused to make reference u/s.18 of the Land Acquisition Act. For the sake of convenience, S.C.A. No.5288 of 2015 is taken as the lead matter.
3. The facts in brief are that the petitioners herein are having agricultural fields in Dasada Taluka, which is proposed to be acquired by the respondents for the Narmada Canal Project. It is the case of the petitioners that respondent no.2, in exercise of powers u/s.11 of the Act, passed an award on 10.10.2012, in the absence of the petitioners, which has resulted into grave injustice to them. It is the further case of the petitioners that the land sought to be acquired is "jirayat land" and is very fertile. The petitioners have been cultivating the land since last many years.
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4. It was submitted on behalf of the petitioners that according to Section 18 of the Act, any person interested, who has not accepted the award, may make an application to the acquisition officer requiring the Collector to refer the matter for determination of the Court. Such application has to be made within six weeks from the date of the award of Collector, if the person was present or represented before the Collector at the time of passing the award; and in other cases, within six weeks of receipt of Notice u/s.12(2) or within six months from the date of award of the Collector, whichever period shall first expire.
4.1 It is submitted that respondent no.2 passed the award on 10.10.2012, however, for the first time, Notice u/s.12(2) came to be issued and served upon the petitioner only on 05.09.2013, after expiry of six months. Such delay was there on the part of respondent no.2authority itself, who has acted contrary to the provisions of the act. It is submitted that after receiving Notice on 05.09.2013, the petitioner immediately filed application for reference on 25.09.2013. However, the same came to be rejected. It was, therefore, prayed that the impugned order passed by the respondentauthority deserves to be quashed and set aside.
5. Learned AGP supported the impugned order passed by the respondentauthority and submitted that since the petitioners were aware about the acquisition proceedings, they ought to have taken prompt action in the matter. However, the petitioners remained inactive for a long period of time. Learned AGP, therefore, requested that the present petitions may not be entertained.
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6. We have heard learned counsel for both the sides. The award u/s.11 of the Act was passed on 10.10.2012 and admittedly, when the said award was passed, the petitioners herein were not present. They had no knowledge about the passing of such award. For the first time, Notice u/s.12(2) of the Act came to be issued and served upon the petitioners only on 05.09.2013, ie. after expiry of six months from the date of award. Such delay was there on the part of respondent no.2authority itself. It is a matter of fact that after receipt of the Notice on 05.09.2013, the petitioners immediately filed application for reference on 25.09.2013, which came to be rejected.
7. Considering the facts of the case, it would be beneficial to refer to a decision of the Apex Court in Parsottambhai Maganbhai Patel and others v. State of Gujarat and another reported in 2005 (3) GLH 377. In that case, the landowners were neither present nor represented when award was made. No notice u/s.12(2) of the Land Acquisition Act was served upon them and they came to know of the award only when compensation was paid. On the fact of the case, the Apex Court held that application seeking reference was within limitation as it has to be computed from the date of knowledge of declaration of award either actual or constructive. In view of the principle laid down in the above decision, the respondentauthority ought to have allowed the application seeking reference since it was within limitation.
8. For the foregoing reasons, the petitions are allowed. The Page 4 of 5 C/SCA/5288/2015 JUDGMENT impugned order dated 01.10.2014 passed by the respondent authority is quashed and set aside and the authority is directed to refer the matters by way of reference to the competent Court.
9. The petitions stand disposed of accordingly. Rule is made absolute.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) Pravin Page 5 of 5