Gujarat High Court
Manharlal Somabhai Patel vs State Of Gujarat on 23 March, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15753 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 15753 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANHARLAL SOMABHAI PATEL & 4 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR HASIT H JOSHI(2480) for the Petitioner(s) No. 1,2,3,4,5
MS ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 5
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 23/03/2022
CAV JUDGMENT
1. The petitioners, have filed the present writ petition seeking Writ of Mandamus and/or Writ of Certiorari or to issue order or direction declaring that the land bearing survey no.54/2 paiki admeasuring 12112 sq. meters, is not under acquisition. The Page 1 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 petitioners also seek direction to the respondent to rectify the entry no.972 dated 26.3.1985 and to restore the name of the petitioners in the revenue record.
2. The aforesaid prayers, are made in the backdrop of the following facts as culled out from the memo of the petition.
2.1 According to the petitioners, the agricultural land bearing survey no.54/2 paiki admeasuring 15176 sq. meters situated at village Kanbivaga, Taluka and District Bharuch were of the ownership of two sisters namely Manguben Vitthaldas Patel and Sushilaben Patel and after the two sisters passed away, petitioners succeeded the right as per the "other rights" being the heirs of deceased Bai Reva wd/o. deceased Somabhai Patel whose name was there in the revenue record. It is also the case of the petitioners that the petitioners are the owners, occupier and cultivating the land in question in the capacity of tenant. It is also the case of the petitioners that 3064 sq. meters of land of survey no.54/2 paiki was acquired for public purpose for constructing New Civil Hospital at Bharuch by issuing Section 4 Notification of the Gujarat Land Acquisition Act, 1894 (hereinafter referred to as the "Act of 1894) followed by Section 6 Notification and final award dated 25.9.1973 by the Land Acquisition Officer. Two separate references were made; one under Section 18 being Land Acquisition Reference no.53 of 1973 whereas reference under Section 30 for the same acquisition was numbered as Land Acquisition Reference No.49 of 1974. Both the references were consolidated and the learned Assistant Judge, Bharuch awarded the additional compensation vide judgment dated 30.9.1974. Apropos the said judgment, entry no.972 dated 26.3.1985, was posted in the revenue record, which according to the petitioners does not give the correct description of the award dated 25.9.1973 passed by the Special Land Acquisition Officer inasmuch as, only part of survey no.54/2 paiki i.e. 3064 sq. meters, was acquired whereas the remaining land i.e. admeasuring Page 2 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 12112 sq. meters though was not acquired, the same is also erroneously shown as the Government land for Civil Hospital. The petitioners therefore on 18.5.2017 brought it to the notice of the authorities of the State Government but they did not bother it to correct the same and hence the petitioners apprehend that the respondent authorities of the State Government would forcibly take possession of the land which was never acquired. Hence, the present petition.
3. The Collector i.e. respondent no.3 has filed the affidavit-in- reply raising preliminary objections and one of the objections, is that the petition, suffers from the vice of delay and laches for, the acquisition proceedings have attained finality in the year 1972 wherein challenge has been laid in the year 2017. It is the case of the respondent no.3 that the land bearing survey no.54/2 paiki, was acquired by virtue of the land acquisition proceedings for the purpose of New Civil Hospital and as a result whereof, Section 4 Notification was issued on 8.12.1970 for the land admeasuring 12112 sq. meters. Another Section 4 Notification was issued on 14.3.1972 for remaining land admeasuring 3064 sq. meters. Final Notifications under Section 6 came to be issued on 20.9.1972 and therefore, the entire survey no.54/2 paiki admeasuring 12112 sq. meters + 3064 sq. meters total admeasuring 15176 sq. meters, was acquired in the land acquisition proceedings. Since the proceedings were of 1970, the record have been disposed of as it was falling in 'B' category and therefore, no clear record is available with regard to the acquisition proceedings. It is also stated that on the basis of Kami Jasti Patrak it is clear that the whole survey no.54/2 paiki was acquired and on the basis of Durasti Patrak No. 27, entry no.972 was posted in the revenue record entering the name of New Civil Hospital. It is also the case of the respondent no.3 that the land has been acquired by the State Government after following the procedure under the Act of 1894 and it has vested in the State Government free from all encumbrances. Once the land has been Page 3 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 vested in the State Government, the original land holders or any interested person in the land has no right over it. The respondent no.3, has also raised the objection to the effect that the petitioners apart from the captioned writ petition has also filed Regular Civil Suit No.134 of 2018 for the same subject matter.
4. The newly added respondent no.5 has also filed its reply raising preliminary objections. Reference is made of the policy of the State Government providing for establishment of New Self Finance (Brown field) Medical College at Government Civil Hospital. In furtherance of the policy, a lease came to be executed in favour of Krishna Educational Foundation in view of the Resolution dated 4.7.2017 passed by the State Government. The whole of Khata No.139 was subject matter of lease deed admeasuring H-11 A-72 24-sq. meters i.e. 28.96 Acres. The lease, came to be transferred in favour of Rudraksh Academy Private Limited i.e. respondent no.5. As per the provisions contained in the applicable Regulation, Form-5 was issued by the District Collector, Bharuch on 15.1.2018 wherein also reference is made of survey no.54/2 paiki admeasuring 15176 sq. meters. Further details have also been provided as regard the land allotted of Khata No.139.
4.1 According to the respondent no.5, letter of permission dated 15.10.2020 has been issued and it is permitted by the National Medical Council to start the medical college for 150 medical students followed by first renewal on 11.8.2021 by National Medical Council. It is the further case of respondent no.5 that for the purpose of running the medical college there are well settled norms as envisaged in the applicable Act, Rules and Regulations framed there under and therefore, expansion work of existing construction is necessary. The respondent no.5, is under obligation to construct new residential quarters for teaching, non-teaching and nursing staff as per the applicable norms and standards for running the medical college. Accordingly, applications were filed before the Bharuch-
Page 4 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 Ankleshwar Urban Development Authority for proposed construction with respect to land bearing Final Plot No.27A and 14. It is also the case of the respondent no.5 that initially, the old civil hospital building was three storied i.e. ground + 3 floors with comparatively less medical facilities; however, it has constructed 5 floors and now the building of hospital is ground + 8 floors with several wards and various medical and paramedical facilities. Details have been provided in the affidavit to substantiate that after the execution of the lease deed, the respondent no.5 has carried out various developments by investing a whooping sum of Rs.67,48,73,373/-. Loans, have also been availed of from the bank for the medical college. It is also stated that the conduct of the petitioners is not bonafide inasmuch as, the petitioners had filed a writ petition being Special Civil Application No.12929 of 2017 with a prayers under the provisions of Act of 1894; however, it came to be withdrawn and with a crafty drafting, challenge to revenue entry, is made directly before this Court. It is urged that considering the nature of the project it would be in the public interest that the petition is dismissed.
5. Mr Anshin Desai, learned senior counsel appearing with Mr Satyam Chhaya, learned advocate for newly added respondent has raised preliminary objections as regards maintainability of the captioned writ petition namely; (i) that the petition suffers from the vice of delay and laches; (ii) that entry no.972 is sought to be challenged directly without availing of statutory remedy; (iii) that disputed questions of fact are involved and (iv) that indirect challenge is to the land acquisition proceedings.
6. Mr Shalin Mehta, learned senior counsel appearing with Mr Hasit H. Joshi, learned advocate for the petitioners submitted that the land bearing survey no.54/2 paiki, was admeasuring 15176 sq. meters situated at Village: Kanbivaga, Taluka & District Bharuch and the land acquisition proceedings, were initiated for acquiring the Page 5 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 land for a public purpose namely, construction of New Civil Hospital at Bharuch and as a result whereof, Section 4 Notification was issued for acquiring the land admeasuring 3064 sq. meters of survey no.54/2 paiki. Section 4 Notification, was also published for acquiring land admeasuring 12112 sq. meters land of survey no.54/2 paiki for the public purpose of constructing New Civil Hospital at Bharuch. It is further submitted that Section 4 Notification, was followed by issuance of Section 6 Notification. So far as land admeasuring 3064 sq. meters is concerned, award was declared followed by reference under Section 18 and the compensation determined in the award was enhanced. So far as the land admeasuring 12112 sq. meters is concerned, after publication of Section 6 Notification, no further steps are taken and therefore, acquisition of 12112 sq. meters of land is abandoned, which is strengthen by the fact that there is not a semblance of any document to suggest that either the award has been passed or reference has been made to the Court of competent jurisdiction. It is further submitted that after the acquisition in the year 1972 and 1974, as well as after the mutation of the entry no.972 in the revenue record, the petitioners were in peaceful possession and there was no occasion available to the petitioners to have challenged the action of the State Government.
6.1 It is submitted that the petitioners were in possession of the remaining land which was abandoned from acquisition; however, the land was running in the name of Government Hospital namely New Civil Hospital at Bharuch. It is submitted that the original lease, was executed on 6.7.2017 in favour of Krishna Educational Foundation in view of the Resolution dated 4.7.2017 and the property of Khata No.139, was subject matter of the lease. It is at this point of time, that when the petitioners apprehended that their possession will be tinkered with, that the petitioners filed a writ petition being Special Civil Application No.12929 of 2017 before this Court; however, owing to clubbing of prayers, permission was Page 6 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 sought for to withdraw the petitioner reserving a liberty to file afresh petition. After withdrawal of the writ petition, the petitioners have filed the present writ petition in the year 2017.
6.2 It is submitted that so far as 3064 sq. meters of land is concerned, Section 4, Section 6 Notifications are there, followed by award and further reference before the Court of Assistant Judge, Bharuch. It is submitted that a special mechanism is provided in the Act of 1894 for taking possession and it is only after the possession is taken , that the land stands absolutely vested in the State Government free from all encumbrances. So far as land admeasuring 12112 sq. meters of land is concerned, except Section 4 and Section 6 Notifications, there is nothing on record to show that there is an award passed or possession taken. Even the compensation, has not been paid to the petitioners. Since the land of the petitioners admeasuring 12112 sq. meters is not acquired, it cannot be said that the case of the petitioners would be covered under Section 24(1)(a) for, there is no acquisition proceeding pending. Since the land is not acquired, the authorities will have to follow the procedure and acquire the land. It is submitted that the Apex Court in the recent judgment in the case of Indore Development Authority vs Manoharlal And Ors. etc. reported in (2020) 8 SCC 129, while interpreting Section 24(1)(a) has held and observed that it operates where no award is made in a pending acquisition proceeding; in such event all provisions of the new Act relating to determination of compensation would apply. Therefore, if at all the respondents, are desirous of acquiring the land they may do so as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
6.3 While adverting to one of the preliminary objections raised by the respondent, that acquisition of 1972 has been challenged in the year 2017, it is submitted that the prayers of the petitioners, are misread. It is the case of the petitioners seeking declaration that the Page 7 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 land is not acquired and/or there is no acquisition. It was only when, the land was in acquisition or acquired that the petitioners, would challenge the acquisition. Since the land was/is not at all acquired all what the petitioners are seeking is declaration to declare that the land bearing survey no.54/2 paiki admeasuring 12112 sq. meters is not under the acquisition. The said objection, is nothing but a result of misreading of prayer.
6.4 While dealing with the objection of delay in approaching the Court, it is submitted that there was no opportunity/occasion available to the petitioners to challenge the same considering the fact that the petitioners were in peaceful possession. It is only after 2017; after the execution of the lease deed, and action taken that the petitioners have approached this Court and therefore, the objection that the petition is filed at a belated stage is misconceived.
6.5 Similarly, the objection of maintainability raised against the entry, is also misreading of the prayer. It is submitted that prayer is two fold namely; seeking declaration that the land is not under the acquisition and rectifying the entry. If first prayer is accepted and allowed the second prayer of rectifying the entry no.972 would automatically follow. The petition is not for mutation of the entry but the prayer has been mischaracterized by the respondent.
6.6 It is submitted that the objection as regards disputed questions of fact, is misconceived inasmuch as, there are no serious disputes. So far as land admeasuring 3064 sq. meters is concerned, there are documents available in the nature of Section 4 Notification, Section 6 Notification and award; however, for the land admeasuring 12112 sq. meters, except Section 4 and Section 6 Notifications, neither the copy of the award is available nor the judgment by the reference court. Assuming that there are disputed questions of fact but, it is not of such a nature that the Court cannot Page 8 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 decide. Even if there are disputed questions of fact but if the Court finds illegality, the Court would steer clear and entertain a writ petition under Article 226 of the Constitution of India. It is therefore urged that the petition deserves to be allowed and declaration be given that the land bearing survey no.54/2 paiki admeasuring 12112 sq. meters, is not under acquisition and as a result whereof, the respondents be directed to rectify the entry no.972 dated 26.3.1985 with a further direction to the respondent to restore the name of the petitioners.
7. Mr Anshin Desai, learned senior counsel appearing with Mr Satyam Chhaya, learned advocate for the respondent no.5, while reiterating the preliminary objections, submitted that the petition suffers from delay and laches for, the acquisition proceedings of 1972 and revenue entries of the year 1985, are sought to be challenged by the petitioners in the year 2017 and that too without offering any explanation whatsoever with respect to such a huge delay of more than 4 decades from the acquisition proceedings and more than 3 decades from the date of entry. It is submitted that the petitioners have acquiesced and waived their right.
7.1 It is submitted that the petitioners, claim to be the heirs of Bai Reva Somabhai Patel who, died on 20.3.1986 and deceased Somabhai Lakshmanbhai Patel, who, died on 16.9.1949. In support of the averments the petitioners have placed on record the pedigree, which is of the year 2014. It is submitted that the husband, who predeceased Bai Reva is shown as the heir, which is unusual.
7.2 It is next submitted that the land bearing survey no.54/2 paiki was admeasuring 15176 sq. meters. Manguben Patel and Sushilaben Patel, two sisters, were the original owners and according to the petitioners, after their demise the petitioners succeeded the right in the capacity of heirs of deceased Bai Reva. It Page 9 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 is the case of the petitioners that the petitioners are the owners, occupier and cultivating the said land in the capacity of tenant; however, the averments in paragraph 4 are self contradictory. It is the case of the petitioners that they are cultivating and are in possession of the land; however, there is not a semblance of evidence, in the nature of document, placed on the record to substantiate the aspect of cultivation or the petitioners being in possession. The case of the petitioners that only land admeasuring 3064 sq. meters was acquired and land admeasuring 12112 sq. meters, has been abandoned, is also erroneous and fallacious. What has been left out, is not land admeasuring 12112 sq. meters but other two survey numbers. Only on the basis that copy of the award is not available on record cannot make good the case of the petitioners. Assuming that the copy of the award is not available, does not mean that the land admeasuring 12112 sq. meters, is abandoned, in fact, the same has not been abandoned.
7.3 It is submitted that a bare perusal of the averments made in paragraphs 8 and 9, suggests that they are bereft of any reasons. The contention that there was no cause available to the petitioners before 2017 to challenge the action, is also misconceived and is raised only to cover up the delay. Undisputedly, the entry, was mutated on 26.3.1985 and even thereafter, in the Village Form No.7/12, the land has been shown in the name of New Civil Hospital at Bharuch for the total area of 15176 sq. meters since the year 1982-83. All the documents, after the year 1985, show the name of New Civil Hospital. It is submitted that even Kami-Jasti Patrak indicates the aspect of acquisition with respect to survey no.54/2 paiki. The whole area admeasuring 15176 sq. meters has been acquired and details of land acquisition case number, have also been mentioned.
7.4 It is further submitted that for the lands situated in villages, the most important documents for agricultural land, would be village Page 10 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 form No.7/12; village form No.6 etc. It is also submitted that as per the policy of the State Government, it makes it obligatory to produce the 7/12 form for the purpose of registration and if the land situated in the City, City Survey is important. It is submitted that it is the case of the petitioners that petitioners are owners, occupier and cultivating the land. Such contention is on oath and if the petitioners are owners, in occupation and cultivating the land, it is difficult to accept that the petitioners have no knowledge. It is also submitted that the acquisition is of the year 1972 and the petitioners come only on the basis of pedhinama claiming that they are owners of the land. In support of such ownership, no documents have been produced and the documents which are produced (pages 15 onwards) namely 7/12 forms, reflects the name of New Civil Hospital, Bharuch. It is submitted that 4 years delay, was considered as a gross in the acquisition proceedings.
7.5 It is submitted that in paragraph 8 of the writ petition reference is made to the entry no.972 dated 26.3.1985 on the ground that it does not give a correct description of the award passed by the Land Acquisition Officer. It is submitted that the entry no.972, is sought to be challenged after 32 years. It is submitted that the grounds raised in the writ petition and more particularly, paragraph 9, are fictitious grounds. It is not the mis-characterization but crafty and shrewd drafting, to bring in the petition.
7.6 It is submitted that so far as, the earlier petition filed in the year 2017 is concerned, the prayer was direction to the respondent authorities to restore their status in view of the revenue record as owners/tenants. It is submitted that the said writ petition was withdrawn on the ground that there was some confusion in reliefs sought for. Though a liberty has been granted to file a fresh petition, with proper averments, except the challenge of entry no.972, everything is the same and therefore, the present writ petition is barred by principle of constructive res judicata. It is submitted that Page 11 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 the petitioners had filed a writ petition which was withdrawn. Though the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code) does not apply to the proceedings under Articles 226 and 227 of the Constitution of India but guiding principles of the Code do apply and therefore, the present writ petition is barred by the principle of constructive res judicata.
7.7 It is next submitted that Chapter X-A titled "Of the Record of Rights" provides for full fledged machinery for mutation of the entry; however, it is unfortunate that the petitioners, have filed writ petition seeking to rectify the entry no.972 dated 26.3.1985. Various provisions namely Section 135-C, 135-D etc., are meant for the purpose of mutation of the entry in the revenue record and therefore, there is an alternative efficacious remedy available to the petitioners. The said entry no.972, even otherwise, was challenged before the Deputy Collector after filing of the present writ petition and the Deputy Collector, has passed the order dated August 2020 rejecting the appeal. Since the petition was pending, the said order has been made subject to the outcome of the present writ petition. The revision filed before the Collector also came to be dismissed on 23.3.2021.
7.8 It is submitted that everything, had triggered only after filing of the writ petition. It is submitted that not only this, a suit is also filed in the year 2018, after filing of the writ petition i.e. on 3.5.2018. The averments made in the suit, are to the effect that out of 15176 sq. meters of land only 3064 sq. meters of land has been acquired whereas 12112 sq. meters of land has been released. It is submitted that declaration has been sought that the lease deed dated 6.7.2017 and the amendment 2018, are not binding to the petitioners and the same be quashed and set aside. Such attempt on the part of the petitioners is of taking advantage of the present writ petition so also status quo granted by this Court vide order dated 23.1.2020.
Page 12 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 7.9 It is submitted that the averments as regards forcibly taking possession is fictitious for, the petitioners themselves have made a representation dated 18.5.2017 wherein, it has been categorically stated about existing building of Nurse quarters. It is submitted that the said averments, suggest that the knowledge was very much there. Further, the said representation is also a mischievous attempt on the part of the petitioners inasmuch as, though notice is purported to be served through Registered Post A.D., there is no evidence in the form of acknowledgment slip to substantiate that the said notice, was ever served upon the authorities as indicated therein. Moreover, the representation, is nothing but only with a view to creating a cause of action; however, cause of action is missing and therefore, the averments made in the writ petition are fictitious.
7.10 It is next submitted that in petition claiming ownership over the land, five grounds have been mentioned and not a single ground is relating to facts coupled with the documents. Though it is alleged that there is a wrongful act; however, what is a wrongful act, the nature of the wrongful act etc. all are missing. While adverting to paragraph 17, it is submitted that prayers are in two parts; seeking direction that the land is not under acquisition and therefore, the petitioners want this Hon'ble Court to look into the acquisition after a delay of 46 years and as a consequent thereof rectify the entry no.972. It is submitted that seeking such a prayer is impermissible in a writ petition under Article 226 of the Constitution of India and more particularly, when there is an inbuilt mechanism provided under Chapter X-A of the Code by virtue of Sections 135-C, 135-D read with Rule 108 of the Rules of 1972. It is submitted that there is not a whisper about the knowledge and the delay and therefore, the petitioners will have to prove about the knowledge so also the delay.
7.11 It is further submitted that the edifice on which the petition is Page 13 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 filed is the pedigree; however, the said pedigree itself is in doubt. The husband, who predeceased Bai Reva has been shown as her heir. Further, it is prepared in the year 2014 and therefore, the pedhinama itself is doubtful and cannot be considered. It is also submitted that so far as the Village Form No.7/12 is concerned, the name of Bai Reva is shown in the second column with an endorsement that the purchase, as per the provisions of Section 32- F, has been differed and kept in abeyance; however, after the death of Bai Reva, the name of the Bai Reva has been deleted. Even the Kami-Jasti Patrak produced by the petitioners reflects the details of the acquisition of the Survey Nos.54/1 and 54/2. It clearly records that the whole land, is acquired coupled with the details of LAQ case numbers with respect to the various acquisition.
7.12 It is submitted that the contention is raised that the land acquisition proceedings have been abandoned with respect to survey no.54/2 paiki and for which reliance is placed on the extracts below the tabulated form of Section 4 Notification. Such reliance is misplaced inasmuch as, in the schedule, the description of the land which has been acquired has been retained whereas, the lands which were abandoned, from the acquisition proceedings, is set out. Therefore, the contention about abandonment of land admeasuring 12112 sq. meters of survey no.54/2 paiki from the land acquisition proceedings only on the basis of details mentioned in Section 4 and Section 6 Notifications, is misplaced.
7.13 It is submitted that as against this, by virtue of the lease deed executed in favour of the respondent, it acquired a clear marketable title with a further right to invest and develop the land for the public at large. It is therefore urged that equity also leans in favour of the respondent. It is submitted that after the permission, environmental clearance was sought for, which has been granted by the State Level Environment Impact Assessment Authority on 24.5.2019. The Civil Hospital at Bharuch, initially, was of 3 storied and after Page 14 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 execution of the lease deed, the respondent no.5 has constructed more 5 floors and now, the building of the Civil Hospital is of ground plus 8 floors. It is submitted that the respondent no.5 has invested a whooping sum of Rs.67,48,73,373/- Crores for upgradation of Civil Hospital and New Medical College. The petitioners tried to obstruct by placing public notice informing that there is a status quo granted by the Hon'ble High Court as well as pendency of another writ petition and therefore, no construction should be done without permission. It is submitted that the respondent no.5, therefore, made a representation to the Chief District Medical Officer, inter alia, requesting that as per the National Medical Council Norms, the construction at site as planned by it is essential and necessary for the purpose of running the Medical College and Civil Hospital.
7.14 It is submitted that in the earlier writ petition, the petitioners on oath, had stated about the two representations dated 20.2.2017 and 18.5.2017; however, in the present writ petition, the representation dated 20.2.2017 is missing and reference is only of 18.5.2017 representation. Though it is claimed that two representations, have been served/made; however, there is nothing on the record to suggest that it was served. Only with a view to bringing cause of action, purported representations have been made to the authorities concerned. It is submitted that in paragraph 17, averment has been made about the aspect of communication dated 31.5.2017 making a reference of 'B' Class Register and destruction of papers of the land acquisition case Nos.36/1970; 65/1968 and 172/1962 during the campaign of Nirmal Gujarat, 2007. It is submitted that this fact, was very much within knowledge of the petitioners; however, in the present writ petition, there is not a whisper about the same. The prayer in the writ petition, as regards abandonment of the 12112 sq. meters of survey no.54/2 paiki was in consonance with the averments made in paragraph 17. In the present writ petition, the said averments are not forming part. Further, what is now sought to be challenged is entry no.972 Page 15 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 therefore, there is conscious non-disclosure on the part of the petitioners and therefore, it dis entitles the petitioners to claim any reliefs. Hence, the petition deserves to be dismissed with exemplary cost.
7.15 Reliance is placed on the judgment in the case of Delhi Administration & Others v. Kaushilya Thakur & another reported in (2012) 5 SCC 412. The Apex Court, has pointed out the procedure to be followed under Article 226 of the Constitution of India. The Apex Court, has held and observed that merely because a compensation has been received that would not, suffice to entertain the writ petition and the party claiming should be asked to produce some tangible evidence to prove his ownership of land. The Apex Court, has also dealt with the aspect of delay and laches. It has been held that it is trite that in exercise of power under Article 226, High Court cannot entertain belated claim unless party offers tangible explanation. In absence of tangible explanation, the writ petition should not be entertained.
7.16 Reliance is placed on the judgment in the case of State of Karnataka & Others v. Janthakal Enterprises & another reported in (2011) 6 SCC 695. It is submitted that the Apex Court, has held and observed that filing of the application with delay and laches, should not be entertained.
7.17 Reliance is also placed on the judgment in the case of Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Others reported in (2010) 14 SCC 309. It has been held and observed that in relation to the land acquisition proceedings, the Court should be loathe to encourage stale litigation as the same might hinder projects of public importance. The Courts are expected to be very cautious and circumspect about exercising their discretionary jurisdiction under Article 226 or Article 32 of the Constitution if there has been inordinate unexplained delay in questioning the validity of Page 16 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 acquisition of land.
7.18 Reliance is also placed on the judgment in the case of Ramniklal N. Bhutta & another v. State of Maharashtra & Others reported in (1997) 1 SCC 134. It has been held and observed that the power under Article 226 is discretionary and it will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point. It has been held and observed that in the matter of land acquisition for public purposes, the interest of justice and the public purposes, the interests of justice and the public interest coalesce. They are very often one and the same.
7.19 Reliance is also placed on the judgment in the case of Orissa Power Transmission Corporation Limited & Others v. Asian School of Business Management Trust & another reported in (2013) 8 SCC 738 for the proposition that raising of belated objections should not be entertained.
7.20 Mr Anshin Desai learned Senior Counsel has summed up the arguments namely; that the petition is totally misconceived and frivolous; there is a deliberate incorrect reading of Section 4 and Section 6 Notifications; the petition suffers from the vice of delay and laches; it involves highly disputed questions of fact; alternative efficacious remedy is provided under Chapter X of Code of 1879; claim is based on incorrect area; entry no.972 is sought to be rectify after 32 years; representation is made only to bring in cause of action; non-disclosure of facts; no pleadings so far as description of properties, identification of properties and ownership of properties; guiding principle of Order VII Rule 3 is very much applicable and when the subject matter is involving the immovable property, the plaint cannot be presented without enough description so as to identify the location; the knowledge is clear and that there is no question of deemed knowledge but the knowledge is very much there; the petitioners cannot run out of period of limitation for, in Page 17 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 the present case, petition is filed beyond reasonable period; the principle laid down in the case of Raghavnatha squarely applies to the facts of the present case even if the order is void or null, the same is to be challenged within a reasonable time; even if permission is granted, issue of constructive res judicata comes into picture. The petition is nothing but the result of crafty drafting; equities already created in favour of the respondent no.5 as a rsult of investment of Rs.67,48,73,373/- Crores; two batches have already been inducted for whom, hostel will have to be provided; the respondents are running low and therefore, totally irreversible situation has arisen. Even if the case of the petitioners is taken on its face value, the petitioners can be compensated in terms of money. Sections 74, 78, 81, 90, 91 provides for presumptive value to the Gazette it being a public document and no other proof of document requires. Protection is given and it is deemed to be a correct.
7.21 It is therefore urged that the petition be not entertained. So far as the rejoinder is concerned, except denial nothing is placed on the record.
8. Ms Asmita Patel, learned Assistant Government Pleader, submitted that two Notifications have been issued under Section 4 and Section 6 and in furtherance of the acquisition proceedings and on the basis of the Notifications issued under the Act of 1894, the entry has been mutated. It is submitted that even Kami-Jasti Patrak reflects the factum of acquisition with respect to survey no.54/2 paiki as, it provides that whole parcel of the land has been acquired by making a reference of LAQ case numbers. So far as the entry is concerned, the same, though has been posted in the revenue record in the year 1985, the same has not been challenged by the petitioners and in absence of any challenge, now to seek rectification, would be impermissible. It is submitted that the petition suffers from the vice of delay and laches and thus, should Page 18 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 not be entertained.
9. Mr Shalin Mehta, learned Senior Counsel in rejoinder submitted that Section 4 Notifications were issued for both parcels of land. Section 6 Notifications, were issued on 20.9.1972; however, the award is only for 3064 sq. meters of land and not for 12112 sq. meters of land. As per the provisions of Section 11-A, if no award is made within two years from the date of the publication of the declaration, the entire proceedings for the acquisition of the land shall lapse.
9.1 Reliance is placed on the judgment in the case of Aziman Bibi & Others v. State of West Bengal & Others reported in (2016) 15 SCC 710. The issue before the Apex Court, was whether the proceedings initiated under Sections 4 and 6 had lapsed by reason of failure of the competent authority to make a proper award within a time stipulated for the purpose. It is held and observed that if no award is made as provided under Section 11-A, it would be not lawful for the High Court in exercise of its powers under Article 226 of the Constitution of India to direct the competent authority to proceed with the acquisition.
9.2 Further reliance is placed on the judgment in the case of Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation & Others reported in (2013) 1 SCC 353. It has been held and observed that if no steps are taken after Section 13, the acquisition proceedings lapses. Considering the mandate of Article 300 A, it has been held and observed that "the right to the property is considered to be not only a constitutional right or a statutory right but also a human right. Thought it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc." It has been further held that State cannot be allowed to deprive a citizen of its Page 19 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 property without adhering the law it is only when if pleaded by the State that it has right, title or interest over the said land that it would be permitted.
9.3 Reliance is also placed on the judgment in the case of Satendra Prasad Jain & Others v. State of U.P. & Others reported in (1993) 4 SCC 369. It has been held and observed that the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon taking of possession the land, vests in the Government, that is to say, the owner of the land loses to the Government the title to it. It has been held that the provisions of Section 11-A, are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of Section 6 declaration and therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. It is submitted that what is significant, is the nature of diligence. The respondent, was expected to have exercise the diligence when they had opportunity to see the awards.
9.4 It is submitted that on the basis of Section 4 and Section 6 Notifications, the respondents want to draw the
inference/presumption which, is also misconceived. It is submitted that after issuance of Section 4 Notification, what follows is Section 6 Notification and if award is not made within a period of two years as contained in Section 11, the acquisition lapses and therefore, the theory propounded by the petitioner that the land acquisition proceedings, have abandoned stands. In other words, lapsing of the acquisition is very much a theory pressed in service by the petitioners.
Page 20 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 9.5 The contention that the petitioners are claiming ownership on the basis of the wrong entry, is also misplaced. Section 48 of the Act of 1894, makes the provision that except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of the land of which, the possession has not been taken. Reliance is placed on the judgment in the case of Rajinder Singh Bhatti & Others v. State of Haryana & Others reported in (2009) 11 SCC 480. It is submitted that the Apex Court, while dealing with the language used in Section 48 and more particularly, the word "withdraw" has held and observed that it is indicative of the voluntary and conscious decision of the Government for withdrawal from acquisition; statutory lapse under Section 11-A is entirely difference. It is therefore submitted that in absence of any award as envisaged under Section 11-A, the acquisition, has lapsed and therefore, the petitioners have sought for the writ of declaration as no acquisition has taken place.
9.6 Reliance is also placed on the judgments in the case of Rajinder Singh v. State of Jammu & Kashmir & Others reported in (2008) 9 SCC 368 so also in the case of Suraj Bhan & Others v. Financial Commissioner & Others reported in (2007) 6 SCC 186 in support of the proposition that revenue records confer no title on the parties; such entries are relevant only for the fiscal purposes and substantive rights of title and of ownership of contesting claimants can be decided only by a competent civil court in appropriate proceedings.
9.7 Mr Shalin Mehta, learned Senior Counsel submitted that the contention of the respondents about the pedhinama, is fallacious inasmuch as, there is no bar to file a petition in the year 2017 on the basis of pedhinama prepared of the year 2014. It is submitted that there is no such restriction that the pedhinama of 2014, cannot be relied upon and it is nobody's case that the pedhinama, is forged or fictitious, it is only when the authenticity of the pedhinama is Page 21 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 doubted then the petition goes.
9.8 It is submitted that the contention that the petitioners seek to challenge the revenue entry no.972 after 32 years, is also a misunderstanding on the part of the respondents. It is submitted that the petitioners have not challenged the entry. All what the petitioners are seeking, is declaration. In the event, if the petitioners were to succeed on the first part, the second prayer follows automatically. Assuming that the second relief is not granted in favour of the petitioners but on the basis of the first relief, can very well approach the authority concerned for necessary steps of mutation in the revenue record.
9.9 It is further submitted that the arguments about the fictitious averment/prayer is also not in the right earnest. In paragraph 1, page 2, it has been specifically averred that because of the erroneous entry introduced in the revenue record about the acquisition, the petitioners have been deprived through out for the benefits to follow to the petitioners as agriculturists. It is true that the usage, is of bad english but the fact remains that it cannot be potrayed as a clever drafting. A bare reading of the averments suggest that it is a short, simple and precise capable of being understood by all the concerned. The contention that the prayers are craftily drafted and reliance placed on Order VII Rule 3, is also not proper. It is submitted that for bringing out the writ petition no description is required inasmuch as, it is not a requirement. Section 141 of the Code of Civil Procedure, 1908, clearly envisages that Code of Civil Procedure don't apply to the writ petition under Article 226 of the Constitution of India. It is submitted that the bare minimum requirement, is prayed for because, the description of land bearing survey no.54/2 paiki with the measurement of the land is clearly provided and once, the bare minimum description is provided, there need not be a detailed description as required to be provided while filing the suit under the provisions of Code of Civil Page 22 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 Procedure.
9.10 It is submitted that similarly, the argument of principle of constructive res judicata pressed in service, is also misconceived. The principle of res judicata or constructive res judicata, will apply only if there is an adjudication of the dispute of the issues between the same parties and if the petition is withdrawn with the liberty, principle of res judicata and/or constructive res judicata will not apply. So far as the aspect of equity dealt with by the respondents, is also of no help. The project, has a commercial element for earning profit. It is a private medical college and not for public at large. Therefore, to term it the project as a public project, and for public good is nothing but an attempt on the part of the respondent to give the private project the colour of public element, which would be impermissible.
9.11 It is submitted that the respondents have purchased the land and if, the land has been purchased, it is the settled principle "let the buyer be aware". The Government cannot confer any better title then it has. In the present case, the title of the Government itself is in doubt and therefore, it could not have conferred better title then what it has. The principle of bonafide purchaser cannot be pressed into service for, the same does not apply to the facts like the present one. It applies only when the person from whom the property is purchased, is the owner.
9.12 It is next submitted that so far as the reliance placed on 7/12 form, is concerned, the same is also erroneous. The petitioners, had no knowledge. Assuming that there is knowledge, the entry, is erroneous and till 2017, the Government had not given the lease and it is only when the transaction, was executed that the petitioners had an occasion or cause available to raise the grievance. Also, the wrong transaction/erroneous transaction, will not make the Government and/or private respondent the owner.
Page 23 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 Therefore, it is urged that discretion under Article 226 of the Constitution of India, be kindly be exercised.
9.13 It is submitted that reliance on the provisions of the Evidence Act are concerned, in support of the arguments that Section 4 and Section 6 Notifications are the Government Gazette and are covered, cannot be disputed. However, mere issuance of Section 4 and Section 6 Notifications does not mean that it had followed Section 11 Award. The said eventualities does not flow from the provisions of Section 74, Section 78 and Section 79 etc. and they merely provide presumption of genuineness.
9.14 It is submitted that so far as the aspect of illegal and void transaction is concerned, there is no illegality either on the part of the petitioners or the respondents. If at all there is, the respondent would have to challenge the same.
9.15 It is submitted that if the State Government and/or private respondents are allowed to take possession, it would be in clear violation of Article 21 and Article 300 A of the Constitution of India. It is also submitted that violation of fundamental rights vis-a-vis the investment of Rs.500 Crores is required to be determined. It is submitted that in the case of Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation & Others (supra), the Apex Court, in paragraph 10, has categorically observed that in absence of any acquisition the question which would emerge would be whether, in a democratic body polity, which is supposedly governed by the rule of Law, the State should be allowed to deprive a citizen of his property, without adhering to the law. It has been held and observed that the matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, concedes to the right, title and interest of the appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal. Therefore, the Page 24 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 money spent by the private respondent, cannot help if the Government is not the owner of the land. If at all, the State Government and/or private respondents are desirous of acquiring the land, it can very well do so by invoking the provisions of the Act of 1894; however, till that time they cannot be allowed to touch the land of the petitioners. It is also urged that the petition deserves to be allowed by granting the reliefs as prayed for.
10. Heard the learned advocates appearing for the respective parties.
11. The petitioners, have filed the present writ petition seeking Writ of Mandamus and/or Writ of Certiorari or to issue order or direction declaring that the land bearing survey no.54/2 paiki admeasuring 12112 sq. meters, is not under acquisition. The petitioners also seek direction to the respondent to rectify the entry no.972 dated 26.3.1985 and to restore the name of the petitioners in the revenue record.
12. The edifice on which the aforesaid prayers are made is that the agricultural land bearing survey no.54/2 paiki admeasuring 15176 sq. meters was of the ownership of two sisters namely Manguben Vitthaldas Patel and Sushilaben Patel and after the two sisters passed away, petitioners succeeded the right as per the "other rights" being the heirs of deceased Bai Reva, whose name was there in the revenue record. It is also the case of the petitioners that the petitioners are the owners, occupiers and cultivating the land in question in the capacity of tenants. So far as 3064 sq. meters of land of survey no.54/2 paiki is concerned, it was acquired for constructing New Civil Hospital at Bharuch by issuing Section 4 Notification of the Act of 1894 followed by Section 6 Notification of the Act of 1894 and final award dated 25.9.1973 by the Land Acquisition Officer. Two separate references were made; one under Section 18 being Land Acquisition Reference no.53 of 1973 whereas Page 25 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 reference under Section 30 for the same acquisition was numbered as Land Acquisition Reference No.49 of 1974. Both the references were consolidated and the learned Assistant Judge, Bharuch awarded the additional compensation vide judgment dated 30.9.1974. Apropos the said judgment, entry no.972 dated 26.3.1985, was posted in the revenue record, which according to the petitioners does not give the correct description of the award dated 25.9.1973 passed by the Special Land Acquisition Officer inasmuch as, only part of survey no.54/2 paiki i.e. 3064 sq. meters, was acquired whereas the remaining land i.e. admeasuring 12112 sq. meters though was not acquired, the same is also erroneously shown as the Government land for Civil Hospital. The petitioners, therefore, on 18.5.2017 brought it to the notice of the authorities of the State Government but of no avail and apprehending that the Government would forcibly take possession of the land, which was never acquired, that the petitioners approached this Court.
13. The prayers in the petition are couched in a manner, as if seeking declaration but if one is to see the ultimate effect it is nothing but challenge to acquisition proceeding and the entry in revenue record. Pertinently, the petitioners are challenging the acquisition proceeding of the year 1972 and the entry in the revenue record of the year 1985 and hence the issue which arises for the consideration of this Court would be whether the petitioners are guilty of laches and undue delay? The issue also would be whether the petitioners have explained or provided justification for delay in approaching the Court seeking equitable relief under Article 226 of the Constitution of India. This Court is of the view that the petition suffers from the vice of delay and laches. Also, the petitioners neither in the petition memo, which contains five grounds, nor in the affidavit-in-rejoinder dated 9.10.2019 or dated 10.3.2022, have offered any explanation for delay in approaching the Court. Explanation would be essential and relevant for grant of reliefs which the petitioners are praying for.
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14. Apt would be judgment in the case of State of Maharashtra v. Digambar reported in (1995) 4 SCC 683. In the case before the Apex Court, large scale scarcity relief work including construction of 38000 km. of road works had to be undertaken by the State Government in the year 1971-72 providing employment to small agriculturists for earning their livelihood. Somewhere in the year 1991, one of the agriculturists has filed the writ petition seeking direction to the Government to grant compensation to him on the alleged ground that his land has been utilized by the Government without his consent for constructing the road. Before the High Court the State Government raised the contention about the petition being hopelessly time- barred. However, the High Court, while allowing the writ petition, held and observed that in a welfare state, the State Government cannot take such attitude when citizens come before the Courts and complain that they have been deprived of their property without following the due process of law and without paying the compensation. It certainly affects the valuable right of the citizen to receive the compensation. The Apex Court in the appeal by the State of Maharashtra held and observed that a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like.
15. The Apex Court, has also held and observed that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action Page 27 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 not being available later on. Paragraphs 14, 24 to 26 read thus:
"14. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame- worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.
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 Page 28 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 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 ex- plained 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 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 extraor- dinary 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.
26. Thus, when the writ petitioner (respondent here) was guilty of laches or undue delay in approaching the High Court, the principle of laches or undue delay adverted to above, dis- entitled the writ petitioner (respondent here) for discretionary relief under Article 226 of the Constitution from the High Court, particularly, when virtually no attempt had been made by the writ petitioner to explain his blame- worthy conduct of undue delay or laches. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allega- tion and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen from the judgment of the High Court, the allegation adverted to above, appear to be the common allegation in other 191 writ petitions where judgments are rendered by the High Court following the judgment under appeal and which are subject of S.L.P's in this Court that are yet to be regis-Page 29 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022
C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 tered. We have, therefore, no hesitation in holding that the High Court had gone wholly wrong in granting the relief which it has given in the judgment under appeal, and judgments rendered following the said judgment in other 191 writ peti- tions, said to be the subject of S.L.P's or otherwise. All the said judgments of the High Court, having regard to the fact that they were made in writ petitions with common allegation and seeking common relief, are liable to be interfered with and set aside in the interests of justice even though only learned counsel appearing for a few writ petitioners were heard by us."
The learned senior counsel Mr Shalin Mehta tried to distin- guish the judgment by contending that the petitioner is not seeking compensation and the facts in the said case are different than the facts of the present case. It is submitted that there is no quarrel to the principle enumerated in paragraph 14; however, the principle would have applied to the petitioners when the possession was taken over and the petitioners would have filed the petition seeking possession; however, it is nobody's case that the possession is not of the petitioners. The dispute is only with regard to the identifica- tion and location of the land. The petitioners, after execution of the lease deed by the State Government, came to this Court on the first available opportunity. Before that, there was no occasion available for the petitioners to have approached this Court as the petitioners were in peaceful possession of the land in question. As per the pro- visions of Section 11-A, there is an automatic lapsing of the acquisi- tion proceedings if no award is made and there is no obligation on the part of the petitioners envisaged in Section 11-A and therefore, petitioners did not go to the Court. The petitioners, also had chal- lenged the lease deed before the civil court and therefore, the peti- tioners have been prompt in challenging the action on the part of the respondent authority.
16. The submission does not merit acceptance. As discussed hereinabove and discussion to follow, the ultimate effect of the relief is nothing but challenge to the land acquisition proceeding and the posting of entry in the revenue record. For granting the relief, the Page 30 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 Court will have to declare that land is not acquired and as a result nullify the Notification issued under Section 4 and Section 6. Though copy of the award is not made available on the record, other documents suggest that land bearing survey no.54/2 paiki was acquired as a whole and resultant effect was given in the revenue record by posting entry no.485 and subsequent entry no.972 dated 26.3.1985. The entries are now challenged before the Deputy Collector who, has rejected the appeal so also the Collector. Therefore, what the petitioners could not do it directly are trying to get it done indirectly, by filing this petition.
17. At this stage, the judgments cited by the learned counsel appearing for the respondent no.5 are also worth referring to. In the case of Delhi Administration & Others v. Kaushilya Thakur & Another (supra), the Apex Court, in paragraph 11, has observed "It is trite to say that in exercise of the power under Article 226 of the Constitution of India, the High Court cannot entertain belated claims unless the petitioner offers tangible explanation.
18. In the case Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Others (supra), in paragraphs 13, 18 and 21, it has been held thus:
"13. At the outset, we must state that on the facts of this case, the High Court was not justified in entertaining the writ peti- tion. In our opinion, the writ (1994-2) 107 P.L.R. 144 1988 PLJ 525 petition must fail on the short ground that the writ petition had been filed 16 years after the award was announced by the Collector. It is trite law that delay and laches is one of the im- portant factors which the High Court must bear in mind while exercising discretionary power under Article 226 of the Consti- tution. If there is such negligence or omission on the part of the petitioner to assert his right which, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party, the High Court must refuse to invoke its ex- tra-ordinary jurisdiction and grant relief to the writ petitioner.
18. Moreover, in relation to the land acquisition proceed- ings, the Court should be loathe to encourage stale litigation as the same might hinder projects of public importance. The Courts are expected to be very (2009) 1 SCC 768 (1975) 1 SCC 152 cautious and circumspect about exercising their dis-Page 31 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022
C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 cretionary jurisdiction under Article 226 or Article 32 of the Constitution if there has been inordinate unexplained delay in questioning the validity of acquisition of land. In this regard, it will be useful to advert to the observations made in P. Chin- nanna & Ors. Vs. State of A.P. & Ors.9, wherein this Court had observed thus:-
"In fact, in relation to acquisition proceeding in- volving acquisition of land for public purposes, the court concerned must be averse to entertain writ petitions involving the challenge to such acquisi- tion where there is avoidable delay or laches since such acquisition, if set aside, would not only in- volve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good." (See also: Hari Singh & Ors. Vs. State of U.P. & Ors.10.)
21. In the present case, as already stated, the respondents did not furnish any explanation as to why it took them 16 years to challenge the acquisition of their lands, when admit- tedly they were aware of the acquisition of their lands and had in fact participated in these proceedings before the Land Acquisition Collector. We have no hesitation in holding that the High Court ought not to have entertained the writ petition of the respondents after 16 years of the passing of the award. The High Court should have dismissed the writ petition at the threshold on the ground of delay and laches on the part of re- spondent Nos.1 to 17, notwithstanding (2004) 4 SCC 460 its earlier decision in W.P. No.2244 of 1991, which decision, ac- cording to the appellant, was otherwise distinguishable."
19. As aforestated, the petitioners, are seeking declaration that the land bearing survey no.54/2 paiki admeasuring 12112 sq. meters of land is not under acquisition which acquisition, had taken place during the year 1972-1974. Contention is also raised that the land acquisition proceedings qua 3064 sq. meters, has been finalized; however, the acquisition proceedings in relation to 12112 sq. meters, stood terminated after the stage of Section 6 Notification for, there is no award passed under Section 11 and therefore, as per the provisions of Section 11-A, the acquisition proceedings qua 12112 sq. meters stood lapsed and/or abandoned by the State Government. In the writ petition, there is not a whisper about the abandonment of the acquisition proceedings but in the rejoinder dated 9.10.2019 it has been stated thus:
Page 32 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 "7. In this regard, it is further respectfully submitted that though it is mentioned in the Govt. of Gujarat Gazette dated
20.9.1972, it was notified that the lands specified in Schedule thereto namely land bearing survey no. 52 admeasuring 0.58.68 and survey no.54/2 admeasuring 0.30.64 were decided to be acquired for public purpose for construction of new civil hospital at Bharuch and it was clarified therein that the acquisition of the remain land mentioned in the schedule appended to the Govt. Revenue Department dated 14 th March, 1972 for the purpose stated above stands abandoned and the Govt. of Gujarat was pleased to direct that the said notification shall be cancelled in respect of the said land the answering respondent is stating contrary to the Govt. Notification by saying that the entire land was acquired though he is having no material to state that thereafter any further notification or orders were passed and he is having no material to state that for the lands which are stated to have been abandoned from acquisition, any compensation was paid or not by the State authorities to the land owners. Such approach also amounts to deprivation of the fundamental rights of the citizen and, therefore, it is not correct to say that no fundamental rights are infringed.
8. As regards averments made in para 5 of the reply, I state that the land of survey no.54/2 admeasuring 0.30.64 only were decided to be acquired for public purpose for construction of new civil hospital at Bharuch and the acquisition of the remaining land mentioned in the schedule appended to the Govt. Revenue Department dated 14 th March, 1972 for the purpose stated above was abandoned.
10. With regard to the averments made in para 6(a) & (b) of the rejoinder, it is submitted that the Schedule to Section 4 notification of the Act issued on 14.03.1972 itself produced by the respondent authority at Annexure R-II provides as under:
Schedule District, Taluka and Village in Survey Approximate area of which land is situated No. the lands required H.Are.Sq.M. Broach 48 0.39.09 Broach 49 Paiki 0.65.13 Kanbivega 51 Paiki 0.46.54 Kanbivega 52 0.58.68 Kanbivega 54/2 0.30.64 Therefore, it is a clear case that as per the schedule to section 4 notification issued on 14.03.1972, the land of survey no.54/2 approximately required to be acquired was only 0.30.64 and, therefore, remaining land of that survey number was rightly abandoned by the authority. "Page 33 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022
C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 In the rejoinder dated 10.3.2022 filed during the course of hearing, while reiterating, it has been inter alia, averred that the acquisition of remaining land i.e. 12112 sq. meters has been abandoned. Paragraph 25, reads thus:
"25. In this regard, it is most respectfully submitted that as per Govt. Notification as mentioned in the Govt. of Gujarat Gazette dated 20.9.1972, it was notified that the lands specified in Schedule thereto namely land bearing survey no. 52 admeasuring 0.58.68 and survey no.54/2 admeasuring 0.30.64 were decided to be acquired for public purpose for construction of new civil hospital at Bharuch and it was clarified that therein that the acquisition of the remain land mentioned in the schedule appended to the Govt. Revenue Department dated 14th March, 1972 for the purpose stated above stands abandoned and the Govt. of Gujarat was pleased to direct that the said notification shall be cancelled in respect of the said land. It is submitted that this is the only question which can be decided by this Hon'ble Court in a petition under Article 226 of the Constitution of India for doing substantial justice between the parties and the respondent authorities of the State Government are required to produce the evidence which is contrary to the Govt. of Gujarat Gazette dated 20.9.1972, wherein it is notified that the lands specified in Schedule thereto namely land bearing survey no. 52 admeasuring 0.58.68 and survey no.54/2 admeasuring 0.30.64 were decided to be acquired for public purpose for construction of new civil hospital at Bharuch and it was clarified that therein that the acquisition of the remain land mentioned in the schedule appended to the Govt. Revenue Department dated 14th March, 1972 for the purpose stated above stands abandoned and the Govt. of Gujarat was pleased to direct that the said notification shall be cancelled in respect of the said land. It is denied that against the averments made by the petitioners in the captioned petition, the State Government has filed detailed reply. In this regard, it is submitted that mere pointing out that the land in question was acquired by the State Government by resorting to the provisions of the Land Acquisition Act, 1894 is not enough. It is submitted that such averments needs to be fortified by producing positive evidence of entire land acquisition case qua RS No.54/2. It is submitted that mere assertion cannot take place of proof. It is also submitted that the assertion needs to be supported by evidence which is not there in the affidavit of the State Government. It is submitted that mere words or assertions cannot take place of evidence. For that, a party which is in custody of the entire record of the State has to come out with evidence for justifying their averments."
20. At this stage, relevant would be the facts as regard the issuance of Section 4 Notifications and Section 6 Notifications issued Page 34 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 for the purpose of acquiring the lands including the land bearing survey nos.52 and 54/2. Along with the affidavit of the Collector- respondent no.3, Section 4 and Section 6 Notifications have been placed on the record. So far as land admeasuring 12112 sq. meters of survey no.54/2 paiki is concerned, Section 4 Notification has been published in the Official Government Gazette on 8.12.1970 indicating lands of District Broach, Taluka Broach, Village Kanbiwaga namely survey numbers 54/1, 54/2, 48 and 47 followed by Section 6 Notification published in the Government Gazette dated 20.9.1972 whereby, except survey no.54/2 paiki admeasuring 12112 sq. meters rest of the lands namely survey numbers 54/1, 48 and 47 were abandoned from the acquisition. The fact remains that 12112 sq. meters was retained for the purpose of acquisition. Similarly, so far as land admeasuring 3064 sq. meters is concerned, Section 4 Notification was published in the Government Gazette on 14.3.1972 containing survey nos. 48 (Broach), 49/paiki (Broach), 51/paiki, 52 and 54/2 (Kanbiwaga) and vide Notification dated 20.9.1972, survey numbers 49/paiki (Broach), 51/paiki (Broach) and 52 and 54/2 (Kanbiwaga) were retained and what was abandoned was survey number 48 (Broach). Therefore, the below mentioned averments paragraph 25 in the rejoinder of the petitioners is erroneous.
"as per Govt. Notification as mentioned in the Govt. of Gujarat Gazette dated 20.9.1972, it was notified that the lands specified in Schedule thereto namely land bearing survey no. 52 admeasuring 0.58.68 and survey no.54/2 admeasuring 0.30.64 were decided to be acquired for public purpose for construction of new civil hospital at Bharuch and it was clarified that therein that the acquisition of the remain land mentioned in the schedule appended to the Govt. Revenue Department dated 14th March, 1972 for the purpose stated above stands abandoned and the Govt. of Gujarat was pleased to direct that the said notification shall be cancelled in respect of the said land."
21. The acquisition proceedings have one more dimension, which is required to be highlighted at this stage to indicate the knowledge of the petitioner no.1. The award, was given by the Land Acquisition Officer on 27.8.1973 against which, reference application under Page 35 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 Section 18 as well as application under Section 30 of the Act of 1894, were filed before the Court of Assistant Judge, Bharuch. With the consent of the parties, both land acquisition reference nos. 53 of 1974 and 49 of 1974, were consolidated and heard together. The petitioner no.1 who was 27 years of age, was very much one of the opponents in the aforesaid land acquisition reference nos.53 of 1974 and 49 of 1974 which fact, is strengthened by the cause title (page 27 of the compilation). In the judgment, with respect to the right of the petitioner no.1, in paragraph 4 it has been observed thus:
"Opponent No.3 is the son of the applicant and has been joined on account of inter-se disputes between them. Opponent No.3 remained present in person initially but has remained absent thereafter."
Further, in the judgment in paragraph 12 while dealing with issue no.3, it has been observed thus:
"As to the case of Opponent No.3 I think, it is not necessary to consider his case and his rights in this matter because he has not preferred any claim to the Land Acquisition Officer in response to - Section 9 notice. Secondly, his rights might be the rights under the tenancy Act and whether he should have been substituted in place of his father or not who is entitled to tenancy rights on the death of the original tenant is a question to be decided by the Court under the Bombay Tenancy and Agricultural Lands Act, 1948 and the matter remains within exclusive jurisdiction of the Tenancy Court. The Opponent No.3 may take his own recourse through the proper Court."
Therefore, the petitioner no.1 Manharlal Somalal Patel the son of Somabhai Patel and Revaben Patel, was very much before the Court of Assistant Judge, Bharuch and the acquisition proceedings, were very much within his knowledge with respect to survey no.54/2 paiki.
22. As a result of the acquisition proceedings with respect to construction of Civil Hospital, the total land of Village Kanbiwaga, Page 36 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 Taluka & District Bharuch, acquired was H-11 A-72 24-sq. meters (28.96 Acres) and was assigned Khata no.139. As a result of the Durasti Patrak no.22, entry no.485 dated 3.6.1977 was posted in the revenue record and subsequently, on the basis of the Durasti Patrak no.27, entry no.972 dated 26.3.1985, was posted in the revenue record. It also states that the same is based on the Kami-Jasti Patrak S-R 254/255-84-85 dated 8.2.1985. The said entry, gives the details of all the survey numbers, which were acquired. While referring to survey no.54/2 paiki, the total area of 15176 sq. meters has been mentioned, with a further endorsement in vernacular, free English translation, would be "deleted as a result of the acquisition of the whole land". The entry, has been certified. The petitioners themselves, have placed on record 7/12 forms of the years 1971-72 to 1980-81 reflecting the name of Bai Reva. 7/12 form of the year 1981-82, 1983-84 is also placed on record. Pertinently, till the year 1981-82 name of Bai Reva is reflected; however, after the years 1982-83, the name of New Civil Hospital is shown and against which, under the heading of cultivation, the endorsement is "padtar i.e. waste land". So is the position of 7/12 forms of subsequent years indicating that the land is without cultivation.
23. Additionally, in the column of second right it has been recorded that giving the benefit of Section 32-F, the sale, has been differed. Section 32-F of the Bombay Tenancy & Agricultural Lands Act provides for exemption to minor, widow etc. however, the petitioners, have not been able to produce on record as to whether the said extension has culminated into passing of any order purchasing the land in future. Even any certificate, issued under Section 32M, is not produced to substantiate that either Bai Reva or for that matter the petitioners, have taken the benefit under the said provision. Mr Anshin Desai, learned senior counsel therefore, is right in contending that though the petitioners are claiming deprivation of the property, have not produced any document to buttress or substantiate their claim. At this stage, it is also pertinent Page 37 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022 C/SCA/15753/2017 CAV JUDGMENT DATED: 23/03/2022 to mention that Bai Reva i.e. wd/o Somabhai and mother of petitioner nos.1, 2, 3, 4, died on 20.3.1986, she during her lifetime, did not challenge the entry no.972 or entry no.485 dated 3.6.1977. The petitioners have also not placed on the record whether any steps were taken by them for recording the heirship after the death of Bai Reva, they being the heirs. Moreover, Town Planning Scheme No.1 has been implemented and the survey no.54/2 paiki and others have been designated as Final Plot no.14. Petitioners do not appear to have taken any steps at the time of implementation of the Town Planning Scheme No.1. Also, if, one is to go by the averments of the petitioners, in paragraph 4 of the petition memo, it is their own case that "the petitioners are the owners, occupier and cultivating the said land in the capacity of tenant". Pertinently, nothing has been placed on the record to substantiate that the petitioners have been paying any land revenue or any taxes if they were the owner, occupier or cultivating the land in the capacity of tenant.
24. In view of the aforesaid discussion and the principle enunciated by the Apex Court in the case of State of Maharashtra v. Digambar (supra), the judgments cited by the learned counsel for the petitioners would not be of any aid considering the fact that the petitioners, have approached this court, almost after a delay of more than 45 years, from the date of acquisition in the year 1972. Assuming that there was no acquisition, even the rectification of mutation entry no.972 on 26.3.1985 is sought to be challenged after 30 years. The said judgments, cannot be made applicable to the facts of the present case. The petitioners have failed to explain the delay by offering tangible explanation, in approaching this Court seeking equitable relief invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.
25. Hence, the petition does not merit acceptance and is hereby dismissed. Rule is discharged. Interim relief stands vacated.
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26. In view of dismissal of the captioned writ petition, civil application does not survive and stands disposed of accordingly. No order as to costs.
Further Order:
1. Mr Hasit Joshi, learned advocate, at this stage, requests for continuation of status quo granted by this Court for another period of three weeks. Mr Anshin Desai, learned senior counsel appearing with Mr Satyam Chhaya, learned advocate objects to the extension of the status quo on the ground that the said order, has been passed without hearing them.
2. The request of Mr Hasit Joshi, learned advocate is acceded to in wake of the fact that the status quo, was granted by this Court on 23.1.2020 and it has been extended from time to time and the same is extended for another period of three weeks from today.
Sd/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 39 of 39 Downloaded on : Wed Mar 30 20:29:19 IST 2022