Gujarat High Court
Arvindkumar Ganeshmal Dugar vs State Of Gujarat on 11 January, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17863 of 2021
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ARVINDKUMAR GANESHMAL DUGAR Versus STATE OF GUJARAT ========================================================== Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1for the Respondent(s) No. 2,3,4,5,6 MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 11/01/2022 CAV ORDER (PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)
1. By way of this petition under Article 226 of the Constitution of India, petitioner has challenged the legality and validity of the impugned basic order dated 25.10.2021 and had sought for certain incidental reliefs as contained in paragraph 13, which is reproduced hereunder :-
"13(A) Your Lordships may be pleased to issue writ of certiorari or any appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 25.10.2021 passed by the respondent no. 3 produced at (Annex-A) to this petition; AND (B) Your Lordships may be pleased to issue writ of certiorari or any appropriate writ, order or direction and be pleased to direct the Ld. Dist. Collector, Ahmedabad to make reference to the appropriate authority in pursuance to the application u/s.
64(1) of the land Acquisition Act of 2013 at Annex-B to this petition, submitted by the petitioner and till then keep aside Page 1 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 the disputed 40% amount of compensation wit the Hon'ble City Civil Court and/or Ld. Collector and/or to invest the same with any Nationalized Bank pending such reference; AND (C ) Your Lordships may be pleased to stay the impugned order dated 25.10.2021 passed by respondent no. 3 produced at Annex-A to this petition, in so far as disbursing the amount of compensation in favour of Resp. Nos. 5-6 and further direct to disburse the undisputed 60% amount of compensation including 20% amount of compensation in favour of the petitioner, during the pendency of and final disposal of this petition; AND (D) Your Lordships may be pleased to grant ad-interim relief in terms of sub-para (C) pending hearing and final hearing and final disposal of this petition; AND (E) Your Lordships may be pleased to pass such other and further orders may be deemed just and proper in the facts and circumstances of the present case."
2. The case of the petitioner is that the land bearing City Survey No. 5752 of T.P. Scheme No. 14, Final Plot No. 188 admeasuring 2684.55 sq.mtrs., of Mouje Dariapur-Kajipur registration District and Sub-District Ahmedabad known as "Sagar Sadan"which was originally in the name of Shri Subhkaran Sagarmal Dugar. On 29.08.1970, the said property of 'Sagar Sadan' was purchased by five (5) persons named as (i) Ganeshmal Sagarmal Dugar, (ii) Smt. Sirekumari Ganeshmal Dugar, (iii) Arvindkumar Ganeshmal Dugar,
(iv) Ashokkumar Ganeshmal Dugar, (v) Shreyaskumar Ganeshmal Dugar, for which a sale deed was executed between them, which was registered before the Sub-Registrar. The said joint property in which each person is having share of 20% of the said property or 1/5 th share, but subsequently, Ganeshmal Sagarmal Dugar died on 18.02.1976 leaving behind his last testament 'Will' bequeathing his 1/5th (20% share) undivided share in the said 'Sagar Sadan' property to his wife named as Smt. Sirekumari Ganeshmal Dugar.
Page 2 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 Subsequently, Smt. Sirekumari Ganeshmal Dugar was having 40% share and rest of the above persons were enjoying 20% share in the said property 'Sagar Sadan' each.
2.1. It is the case of the petitioner that upon finalization of the Bullet Train Project, the officer of the acquisition department visited the said premises for acquiring the land admeasuring 159.64 sq.mtrs., and thereafter, vide letters dated 28.06.2019 and 13.07.2019, petitioner has given consent for acquisition in which the petitioner also mentioned his share in the property. It is further the case of the petitioner that on 05.09.2019, the petitioner received a letter in which he was called upon for personal hearing on 19.10.2019, though in the said letter, the department has wrongly spelt-out his name as 'Ashvinkumar Ganeshmal' instead of 'Arvindkumar Ganeshmal' and name of Shreyaskumar Ganeshmal' as 'Koveshkumar Ganeshmal' and as such, there are no such persons like the aforesaid names and, therefore, on 19.10.2019 itself, an application was given for correction of their names. The petitioner has further mentioned that out of 40% share of Smt. Sirekumari Ganeshmal, she filed civil suit bearing no. Civil Suit No. 60 of 2008 against Kamalsingh Ganeshmal and others before the City Civil Court at Ahmedabad for seeking declaration and for setting aside the indenture of the Gift Deed dated 21.08.2007 in respect of 20% undivided share of 'Sagar Sadan' property as the same, as contended, to have been obtained without free consent for the reasons stated in the said suit. Further it had been mentioned by her that she had bequeathed 20% of her share in 'Sagar Sadan' property in favour of (1) Chandrakantadevi wife of Arvindkumar; (2) Kusumdevi wife of Ashokkumar and (iii) Mamtadevi wife of Shreyaskumar vide execution of Gift Deed dated 03.01.2008. Respondent nos. 5 and 6 i.e. Kamladevi Kamalsingh and Kamalsingh Page 3 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 Ganeshmal have also filed suit being Civil Suit No. 2938 of 2010 against the said Smt. Sirekumari Ganeshmal and others before the City Civil Court at Ahmedabad challenging the Gift Deed dated 03.01.2008 of said Smt. Sirekumari Ganeshmal which was registered at Sr. No. 60 with Sub-Registrar and prayed for injunction. This proceedings are pending before the City Civil Court with regard to 40% share of the deed. According to the petitioner, there is no dispute with regard to remaining 60% share standing in the name of Mr. Arvindkumar Ganeshmal, Mr. Ashokkumar Ganeshmal and Mr. Shreyaskumar Ganeshmal. As a result of this, the petitioner requested the authority to at least release this undisputed 60% amount of compensation and further requested not to release any compensation in favour of Kamalsingh and/or Kamladevi i.e. respondent nos. 5 and 6 since there is a dispute with regard to 40% of share of deceased Smt. Sirekumari Ganeshmal Dugar. The said suits according to the petitioner are still pending for adjudication. According to the petitioner, a request is made to delete the name of Kamalsingh and Kamladevi in view of the aforesaid background of fact.
2.2. It is further the case of the petitioner that once again a letter was written by the petitioner on 28.11.2019 requesting to correct the discrepancy in the name of Arvindkumar Ganeshmal and Shreyaskumar Ganeshmal which is wrongly typed as 'Ashvinkumar Ganeshmal' and 'Koveshkumar Ganeshmal'. Since nothing has been heard from the said department about the status of compensation and during the course of time, a query was raised by the concerned officer regarding share in the property which the petitioner has clarified the said legal position vide letter dated 08.06.2021. Despite such clarification, according to the petitioner, without considering the same, the authority has acted mechanically and sent notice Page 4 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 bearing Reference No. LQ/MAHRP/ Dariyapur/Case No. 21/2018 Compensation/Award/Vashi-1411/2021 dated 19.06.2021 and as such, against the said order/award/notice, the petitioner requested for reference to the authority for apportionment in view of Section 64(1) of the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "Act"). It was also pointed out by the petitioner that conveyance deed was also executed on 29.08.1970 in favour of one Ganeshmal Sagarmal Dugar, Smt. Sirekumari Ganeshmal Dugar, Arvindkumar Ganeshmal Dugar, Ashokkumar Ganeshmal Dugar and Shreyaskumar Ganeshmal Dugar and according to the petitioner, neither the share of respective persons nor details of consideration part of each member is mentioned. Hence, all five (5) persons have equal 20% share in the property in view of the provisions contained under the Transfer of Property Act, precisely Section 45 of the Act.
2.3. It is further the case of the petitioner that under the aforesaid circumstance, Arvindkumar, Ashokkumar and Smt. Sirekumari each is having 20% share in the said property and there is admittedly no dispute with regard to 60% share in the said property in any case, though 20% share of Ganeshmal after his death 1/5 th share transmitted to Smt. Sirekumari under the 'Will' dated 05.02.1976. Hence, Smt. Sirekumari had 40% of share in the said property which is presently in dispute and pending for adjudication. According to the petitioner, with regard to said 40% share, adjudication is pending before the authorities including this Court. As stated above for 40% share in compensation it was requested to be deposited before the City Civil Court and so far as 60% compensation amount is requested to be disbursed in favour of Arvindkumar, Ashokkumar and Shreyaskumar for which there is no dispute. However, respondent Page 5 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 no. 3 without waiting for the outcome of the said application before respondent no. 2, and further by discarding the request of the petitioner without making any reference to appropriate authority passed the impugned order dated 25.10.2021 by virtue of which a direction is issued to take physical possession of the acquired property and further to pay compensation of such acquired land in favour of persons including the said disputed persons namely respondent nos. 5 and 6.
2.4. It is further the case of the petitioner that the petitioner is not against acquisition of the said parcel of land, but objecting disbursement of 40% compensation in favour of respondent nos. 5 and 6. Thus on 28.10.2021, the petitioner has pointed out to respondent no. 3 that without considering the contents of the application the impugned order ought not to have been passed. After annexing the said application dated 28.10.2021, the petitioner has invoked extra ordinary jurisdiction of this Court by way of present petition.
2.5. It appears that subsequently, on 25.11.2021, Mr. N.V. Gandhi, learned counsel appearing for the petitioner has submitted a draft amendment for inserting relief clause in para 13 of the petition and averments in pleadings. Hence, with this background the present petition has come up for consideration before us.
3. Learned advocate Mr. Gandhi appearing on behalf of the petitioner has contended that the authority ought to have examined the position with respect to the share amongst the persons as specifically pointed out and ought to have considered at least the fact that 60% share is not in dispute in respect of three persons namely Arvindkumar Ganeshmal, Ashokkumar Ganeshmal and Shreyaskumar Page 6 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 Ganeshmal, the authority at least ought to have released compensation with regard to the said portion. Learned advocate Mr. Gandhi has further contended that by virtue of provisions contained under Section 64(1) of the Land Acquisition Act, 2013, within a period of 30 days, the Collector is required to make reference to the appropriate authority in relation to the eventualities mentioned therein which includes liability of a person to receive compensation. According to learned advocate Mr. Gandhi though it is quite visible from the record that only 60% share is required to be disbursed and 40% share not to be disbursed in favour of respondent nos. 5 and 6 which is already in dispute and as such, reference deserves to be made before the appropriate authority, but for the reasons best known to the authority, by brushing aside the objections, mandatory provisions appears to have been ignored by the authority and, therefore, has requested for issuance of writ as prayed for. Learned advocate Mr. Gandhi has further submitted that the acquisition authority was expected to declare the said award in the name of correct persons as well as to pay compensation in favour of the eligible persons only, especially when there is a dispute about eligibility of a person to receive amount of compensation. As a result of this, such dispute ought to have referred under Section 64(1) of the Act to the appropriate authority. So far as issue with regard to discrepancy in the name which was requested to be corrected has also not been paid any attention to. As a result of this, learned advocate Mr. Gandhi has requested that the reliefs prayed for be considered in the interest of justice. No other submissions have been made.
4. As against this, Mr. K.M. Antani, learned Assistant Government Pleader appearing on behalf of the authorities on advance copy has assisted the Court by referring to the relevant provisions of the Act Page 7 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 has pointed out that there is a specific remedy available under the statute itself to ventilate the grievance as voiced out in the petition. It was further submitted that it is not in dispute that the petitioner as well as other persons as named were joint holders and interested persons of the land which appears to have been acquired and further there appears to be a dispute about apportionment on distribution of compensation and further with respect to liability of percentage of compensation, the authority has safely arrived at a conclusion. In view of the peculiar background, the decision is taken after granting appropriate opportunity and as such, there appears to be no infirmity in the order dated 25.10.2021. In any case, according to Mr. Antani, learned Assistant Government Pleader, this grievance which is tried to be voiced out can well be examined and adjudicated in the manner which is prescribed under the provisions of the Act and as such, when there is a specific redressal mechanism provided and available to the petitioner, it is not open for the petitioner to invoke extra ordinary jurisdiction of this Court as disputed facts are required to be examined and hence, when such element of disputed version is reflecting from the record, and alternate remedy being available, this petition may not be entertained.
5. Having heard the learned counsel appearing for the respective parties, it appears that the fact is clearly borne out from the order impugned namely, petitioner along with other persons are the joint holders/interested persons of the land acquired and accordingly, after considering the material placed before the authority, the order is passed about the apportionment of compensation as reflecting from paragraphs 4 and 5 of the impugned order. It appears that basically the grievance appears to be of apportionment of the amount between the petitioner and other joint holders of the land in question and with respect to their claim over the property which is the Page 8 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 subject matter of parallel pending civil proceedings. Hence, we deem it proper not to examine the issue with regard to such apportionment as the same requires examination of facts. We are of the confirmed opinion that this exercise which is sought to be taken before us is possible to be undertaken by the authorities in view of the specific mechanism which has been provided under the statute itself and as such, invoking writ jurisdiction in the instant case by the petitioner is ill founded. For this purpose, a perusal is made by us to the statutory provisions. Section 76 which deals with 'Dispute as to apportionment' and the said apportionment issue can be examined by the authority prescribed under the Act. A reference is tried to be made to Section 64 of the Act, but conjoint reading of Section 76 of the Act, we are satisfied that the grievance voiced out in the petition can well be examined by the appropriate authority to which the petitioner can very well approach. Basically, the grievance is with regard to apportionment of the compensation from amongst the persons interested and in that eventuality, statue has specifically provided a remedy to the petitioner. Hence, we deem it proper not to entertain the petition as the petitioner is not remediless and as such, we are not inclined to entertain the petition on the aforesaid sole ground without making any observations with regard to merits of the claim of the petitioner in any manner, this petition/application is being disposed of.
5.1. Law on the issue of exercise of extra ordinary jurisdiction is well defined by catena of decisions and as such the relevant observations contained in the decision delivered by the Hon'ble Apex Court last in line, in the case of Assistant Commissioner (CT) LTU, Kakinanda & Ors., v. Glaxo Smith Kline Consumer Health Care Limited reported in AIR 2020 SC 2819, would be squarely applicable to facts of the case and we deem it proper to incorporate Page 9 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 the relevant observations hereunder :-
"11. In the backdrop of these facts, the central question is:
whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/ action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar8 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors.9). In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors.10, the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self−imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: −
7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles.
But the exercise of the jurisdiction is discretionary:
it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self− imposed limitations. Resort that jurisdiction is not Page 10 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. (emphasis supplied).
We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. 11, wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus: −
11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub−section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub−section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of Page 11 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022 C/SCA/17863/2021 CAV ORDER DATED: 11/01/2022 assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of."
6. There is one another reason why we are not inclined to exercise the extra ordinary jurisdiction since there appears to be multiple litigations inter se between the parties in the form of suits as stated by the petitioner himself are pending and as such, the claim over the land or even portion of the land is at a stake and pending that adjudication, we are not inclined to entertain the petition since the petitioner can avail appropriate remedy as provided under the statute as observed herein-above.
7. Accordingly, the present petition being not entertainable, we hereby dismiss the same, leaving it open for the petitioner to redress grievance in appropriate forum. It is made clear that we have not expressed any opinion on merits with regard to claim of the petitioner and same can be independently examined by the appropriate authority as and when the petitioner approaches said authority.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) phalguni Page 12 of 12 Downloaded on : Wed Jan 12 20:44:42 IST 2022