Gujarat High Court
Aiyub Musa Patel vs State Of Gujarat on 25 April, 2019
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/SCA/10490/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10490 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10491 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10493 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10494 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10495 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10496 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10497 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10498 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 10499 of 2018
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AIYUB MUSA PATEL
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR RAMNANDAN SINGH(1126) for the Petitioner(s) No. 1
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 4
MR MB GANDHI(326) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 25/04/2019
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE)
1. In these writ petitions, filed by the petitioners under Article 226 of the Constitution of India, prayer clause reads as Page 1 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER under (reproduced from Special Civil Application No. 10490 of 2018 for the sake of brevity):
"9. The petitioner therefore humbly prays that:-
(A) YOUR LORDSHIPS MAY BE PLEASED to admit and allow this petition;
(B) YOUR LORDSHIPS MAY BE PLEASED to issue writ of mandamus or any other appropriate writ, order or direction, holding that acquisition proceeding contemplated under Section 4 of the Land Acquisition Act dated on 25.03.2008 and further notification under Section 6 dated 23.06.2009 qua the land of the petitioner bearing Survey No. No. 131, 136 and 137, situated in vilage Jolwa, Taluka Vagra, District Bharuch had elapsed as per the provisions under Section 11A of the Land Acquisition Act as such the award is back-
dated since till 15.03.2012, the authorities have never intimated to the Hon'ble Court about passing of the award and more particularly when the action to take possession is politically motivated.
(C) Your lordships may be pleased to hold that the award dated 16.06.2011 is illegal, unlawful and is not tenable qua the land of the petitioner bearing Survey No. 131, 136 and 137, situated in vilage Jolwa, Taluka Vagra, District Bharuch and further may be pleased to direct the respondents not to take any further action pursuant to back-dated award dated 16.6.2011 with respect to land of the petitioner.
(D) YOUR LORDSHIPS MAY BE PLEASED to direct the respondent authorities to release the land of the petitioner from acquisition as the land of the petitioner is falling within 300 meters from the outer periphery of village Gamtal which is considered by PCPIR by extending the Gamtal by including the residential premises for the purpose of measurement of 300 meters from the outer periphery of village Gamtal in village Bhensali, Taluka Vagra, District Bharuch.
Page 2 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER(E) Alternatively, YOUR LORDSHIPS may be pleased to direct the respondent authority/corporation to calculate the compensation as per the various provisions of Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013 including that Section 24 of the AC, as none of the land owners has been paid compensation whose name appear in the award dated 16.6.2011 and also that possession has not been taken from any of the land owners whose name appear in the award dated 16.6.2011.
(F) Your Lordships may be pleased to direct the respondent authorities that in the event, the respondent authorities may come to the conclusion that compensation amount calculated under the Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013, is higher to the extent and that it may not be viable to acquire the land in that circumstance the authorities may release the land from acquisition and till such decision is not taken the respondent authorities may not take possession of the land of the petitioner.
(G) Pending admission, hearing and final disposal of the present Special Civil Application, YOUR LORDSHIPS MAY BE PLEASED to direct the respondent authorities not to take any further action with respect to the award dated 16.6.2011 qua the land of the petitioner bearing Survey No. No. 131, 136 and 137, situated in vilage Jolwa, Taluka Vagra, District Bharuch.
(H) YOUR LORDSHIPS MAY BE PLEASED to pass such other and further order/s as may be deemed, just and proper in the interest of justice.
2. One of the basic contentions raised by the petitioners in all these petitions has genesis in the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act, 1894') and further Page 3 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER lapsing of acquisition proceedings qua lands of each of the petitioners as no award was passed under Sections 11 and 11A of the Act, 1894 by the respondent land acquisition authority and action for acquiring the land of the petitioners was contemplated after five years of disposal of earlier writ petition being Special Civil Application No. 16134 of 2011 by an order dated 15.03.2012 and allegations are levelled about taking over possession of the subject land by the Land Acquisition Officer under political pressure though authorities were under consideration of the case of the land of the petitioners for releasing since it was within 300 mts radius of outer periphery of gamtal land which includes residential premises existing as on date.
3. Certain facts emerge on record about issuance of notification of Section 4 on 25.03.2008, representation made by the petitioners thereafter on 18.09.2008, issuance of notification under Section 6 of the Act, 1894 on 11.07.2009 and petitioners preferring Special Civil Application No. 11581 of 2001 and order passed on 19.10.2010 by this Court and again representation made by the petitioners on 23.11.2010, second round of litigation undertaken by petitioners by filing Special Civil Application No. 8284 of 2011 and order passed on 01.07.2011 which as such is not in dispute.
3.1 Further it appears that when the petitioners came to know about the resolution passed by the Board of Directors of respondent - GIDC and communication dated 27.09.2011, no opportunity of hearing was given to the petitioners and therefore again the petitioners filed writ petition being Special Civil Application No. 16134 of 2011 which came to be Page 4 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER disposed of by an order dated 15.03.2012 by recording a statement of learned advocate appearing on behalf of the respondent GIDC that if and when any representation is made with regard to the issue of acquisition of land from the outer limit of Gamthal to the extent of 300 mt such representation would be considered and the petition came to be disposed of.
4. Mr. R.N. Singh, learned advocate for the petitioners in these writ petitions would contend that the award dated 16.06.2011 passed under Section 11 of the Act, 1894 is backdated award and no amount of compensation is paid to the petitioners. The prayer deserves to be granted. Alternatively, it is prayed that case of the petitioners would be governed by the decision in the case of Pune Municipal Corporation and Another vs. Harakchand Misirimal Solanki and Others reported in (2014) 3 SCC 183 wherein it is held that acquisition proceedings would lapse if initiated under Act, 1894 where "compensation has not been paid to landowners" and award was made 5 years or more prior to commencement of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Act, 2013') and the word "paid" came to be interpreted by the Apex Court therein. It is further submitted that both conditions of the proviso to Section 24(2) of the Act, 2013 deserve to be fulfilled, namely, amount of compensation to be deposited in a Reference Court and possession ought to have been taken over by the land acquiring authority. Unless both the above factors are fulfilled, award declared prior to 5 years of Act, 2013 came into force would lapse.
Page 5 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER4.1 Further, additional affidavit is filed on behalf of the petitioner of Special Civil Application No. 10490 of 2018 wherein it is submitted that in earlier proceedings of writ petitions to which reference is made in the earlier paragraph of this order, at no point of time respondent made any statement or filed any affidavit that award was declared on 16.06.2011 and even in affidavit also it was stated that award was yet to be passed. Even reliance is placed on a communication dated 29.12.2012 addressed by the General Manager, GIDC, Gandhinagar to Regional Manager, Ankleshwar wherein Corporation has taken decision that Survey Nos. 131, 135, 136, 137, 149/A, 149/B, 241, 282, 286, 294, 355 of Village Jolva and Survey No. 292/A of village Vadadala falling within 300mts from the outer boundary of village site was to be released from acquisition and unless specific reply is filed in this Court by GIDC it is submitted that the case of the petitioners cannot be said to be governed by the Act, 1894. The said letter dated 29.12.2012 is reproduced hereunder:
TOP PRIORITY No. GIDC/GM(L&P)/ANK/2769 TIME LIMIT G.I.D.C., Head Office, Udhyogbhavan, Gandhinagar Dt.:29/12/2012 To, The Divisional Manager (CG) G.I.D.C. Ankleshwar Sub: Special Civil Application No. 16134 to 16148/2011 Ref: (1) This Office Letter dtd. 18/02/2011 addressed to Shri M.B. Gandhi and copy to you (2) This Office Letter dtd. 23/03/2012 addressed to you (3) Common oral order of Hon'ble High Page 6 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER Court dtd. 15/03/2012 in above matters (4) Letter dtd. 14/06/2012 of OSD(LA) addressed to this office with copy to you (5) Letter dtd. 15/12/2012 of OSD addressed to this office with copy to you In view of decision taken by GIDC Board in its 462 meeting held on 16/02/2012, the Hon'ble nd High Court was pleased to disposed off Special Civil Applications by common order dtd.
15/03/2012.
Corporation has decided that part of Survey nos. 131, 135, 136, 137, 149/A, 149/B, 241, 282, 286, 294, 355 of Village Jolva and Survey No. 292/A of village Vadadala falling within 300mts from the outer boundary of village site be released from acquisition. Actual area, within 300 mtrs. from outer boundary of village arrived after conducting measurement may be proposed to be released from the acquisition. It was also decided that in case area to be released is less than 50 mtrs. as per actual measurement in case of any survey no. then in that case 50 sq. mtr. Land of petitioner shall be released to be in line with minimum area requirement as per PCPIR GDCR.
For land to be released from acquisition, it is necessary to submit proposal under Section 48(i) (2) with exact details of area to be released. Since final date of declaring Award is approaching fast, you may please pay personal attention and ensure that the proposals are submitted tot he Land Acquisition Officer, under intimation to this office.
General Manager (L&P) GIDC, Gandhinagar Copy to:-
The Officer on Special Duty (LA) Narmada Commercial Complex;
Panchbatti, Bharuch 4.2 Further fact emerges on record that compensation to be paid to the petitioners is admittedly deposited in the treasury office as reflected in the order dated 21.12.2013 and not in Page 7 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER the Reference Court as held by the Apex Court in the case of Pune Municipal Corporation (supra). It is accordingly submitted that respondents are directed to proceed with acquisition of the subject land afresh under the provisions of the Act, 2013.
5. As against above, Mr. M.B. Gandhi, learned advocate for the respondent Corporation would contend that the facts of this case would reveal that writ petitions filed earlier and years passed therein are about considering representations to be made by the petitioners with regard to the acquisition of the land within the periphery of 300mtrs from gamtal and such land to be excluded from acquisition. It is further submitted that no material is produced to reveal that award passed under Section 11 of the Act, 1894 is backdated and bald averments made in this regard will not persuade this Court to accept the prayer of the petitioners. Further reliance is placed on the decision of this Court in the case of Gunvantbhai Vastabhai Patel vs. State of Gujarat reported in 2018(0) AIJEL-HC 239609 : 2018 JX (Guj) 513 wherein identical prayer was made by raising similar contention and upon consideration thereof, the Division Bench of this Court negated such contention that award dated 16.06.2011 therein was backdated.
6. Having regard to the facts and circumstances of the case and submissions made by learned advocates appearing for the respective parties and with due deference to the judgement passed by the Apex Court in the case of Pune Municipal Corporation (supra) and in the case of order passed in the case of Gunvantbhai Vastabhai Patel (supra), we are of Page 8 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER the view that facts emerging on record reveal that petitioners of these petitions were served notices under Section 12(2) of the Act, 1894 prior in time and before the Act, 2013 came into force with effect from 01.01.2014. The order dated 21.12.2013 referred to repeated information given to the claimants and accordingly authority was informed that they were not willing to receive compensation pursuant to the award passed under Section 11 in June 2007 and accordingly such compensation was deposited under the head of civil deposit /revenue deposit with the Treasury of the government.
6.1 This Court in the case of Gunvant Vastabhai Patel (supra) considered similar contentions of the village Jolva, Taluka : Vagra, Dist: Bharuch wherein notification under Sections 4 & 6 under the Act, 1894 issued on 25.03.2008 and 23.06.2009 and lapsing of the award under Section 11A of the Land Acquisition Act and backdated award of 16.06.2011 under Section 11 of Act, 1894 all were forming part of the order and came to be negated by this Court. In paragraphs no. 19 to 25, this Court held as under:
"19. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that respondent No.1 issued notification under Section 4 of the Act on 25.03.2008 by which the land of the petitioner as well as other farmers were sought to be acquired. The petitioner is the owner of the land bearing Revenue Survey No.9/A/1-2 situated at village Jolva, Taluka Vagra, District: Bharuch. The declaration under Section 6 of the Act came to be issued on 23.03.2009. The case of the petitioner is that at least 300 meters of area which is the limit prescribed as exemption for acquisition of the land falling within the periphery of village should be left out from acquisition. The land of the petitioner is Page 9 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER situated within 300 meters and therefore the respondent GIDC ought not to have taken the decision of acquiring the land of the petitioner. Petitioner, therefore, filed various petitions from time to time before this Court. The first petition filed by the petitioner and other farmers came to be disposed of by this Court on 19.10.2010 with certain directions. Once again the petitioner filed petition being Special Civil Application No.8290 of 2011. The said petition came to be disposed of on 01.07.2011 at the stage of admission. It is the specific case of the respondent - Land Acquisition Officer that the copy of the said order came to be received on 11.11.2011. However, before the said date, the Special Land Acquisition Officer passed an order on 16.06.2011. Thus, when the petition came to be disposed of at the admission stage by serving an advance copy to the learned Assistant Government Pleader, the said aspect could not be pointed out to this Court.
20. It is also revealed from the record that DILR carried out the measurement of the land in question and land of other farmers and thereafter submitted a report, wherein, it is specifically stated that the land in question of the petitioner and land of some other farmers are beyond 300 mtrs. from Gamtal. Thus, when the land in question of the petitioner is beyond 300 mtrs. from Gamtal, the said land is not required to be released from acquisition as per the policy of the respondent - GIDC. The contention taken by the learned advocate for the petitioner that the impugned award dated 16.06.2011 is back-dated award, cannot be accepted in view of the documentary evidence produced on record.
21. Entry No.601 dated 17.06.2011 has been made in the outward register of GIDC whereby the copy of the award has been served to various authorities as per the procedure. The said outward register is placed on record on page 308 and 309 of the compilation. Petitioner has placed reliance upon the register which is produced on page 260 of the compilation. However, the same is not an outward register but the same is a register maintained by the GIDC for cases of different villages. Thus, it is Page 10 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER clear from the record that contention of the petitioner about back-dated award is not required to be accepted. At the time of hearing of the petition, we have also perused original award register and original outward register, which were produced before us.
22. It is revealed that notice under Section 9(3) (4) of the Act was also served. However, the concerned farmers did not remain present for hearing on 12.10.2009 and 15.10.2009 and therefore further opportunity of hearing was provided vide notices dated 05.11.2009 and 06.11.2009 to persons who did not attend hearing earlier. Thus, from the record, it is clear that before passing the impugned award dated 16.06.2011, the Special Land Acquisition Officer has followed the procedure prescribed under the Act.
23. The another contention taken by the petitioner that notice under Section 12(2) of the Act was not served to him, is also misconceived. In the award itself, it is specifically stated that notices under Section 12(2) of the Act were sent to the petitioner and other farmers. However, they did not remain present for collecting the amount of compensation and therefore the Special Land Acquisition Officer has deposited the amount of compensation before the concerned authority on 21.12.2013.
24. From the affidavit filed by the officer of respondent GIDC, it is revealed that in fact there is no restriction for acquisition of land situated within or nearby village site. However, a policy decision was taken by the GIDC by a circular dated 24.05.2010 to exclude lands situated within 300 meters from outer boundary of village site. Thereafter, because of the orders passed by this Court, once again a meeting was held on 16.02.2012 and a decision was taken in the said meeting, whereby it was decided to release the area of land bearing certain survey numbers falling within the limit of 300 meters of Gamtal. The said decision was communicated to the concerned officer of GIDC at Ankleshwar as well as Land Acquisition Officer. The representations of the petitioner and other similarly situated farmers Page 11 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER were not accepted for release of their lands from acquisition as the lands of the petitioner as well as some other farmers are beyond 300 meters from Gamtal. Thus, in view of the aforesaid factual aspects of the matter, the case of the petitioner for release of his land from acquisition, is rightly not entertained by the respondent GIDC.
25. The reliance placed by learned advocate for the petitioner on the additional affidavit filed by the petitioner on 18.09.2018 and communication produced along with the said affidavit is misconceived. In communication dated 29.12.2012 between the General Manager of GIDC, Gandhinagar to the Divisional Manager (CG), GIDC, Ankleshwar, there is no reference with regard to the land in question of the petitioner. Thus, there was no question of release of the land of the petitioner from acquisition and on the basis of the said communication it cannot be said that the award dated 16.06.2011 is a back-dated award."
6.2 In our view the above findings are equally applicable in the facts and circumstances of this case. However, the same is subject matter of appeal before the Apex Court by way of SLP (C) No. 31056 of 2018.
7. Therefore, without touching or disturbing the communication dated 29.12.2012 addressed by General Manager, GIDC Gandhinagar about Survey Nos. mentioned therein sought to be released from acquisition and proposal forwarded under Section 48(i)(2) of the Act, 1894 about exact details of area to be released and residential houses of the petitioner not to be affected by such acquisition, we find no merit in this petition. However, it will be open for the petitioners, if deemed proper, to withdraw compensation so deposited in the Treasury by the authorities with a liberty to Page 12 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019 C/SCA/10490/2018 ORDER raise legally permissible contentions upon outcome of the petitions by the Apex Court in SLP (C) No. 31056/2018, if it is applicable to the petitioners. Petitions are disposed of accordingly.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 13 of 13 Downloaded on : Tue Jun 25 03:34:04 IST 2019