Gujarat High Court
Dilipsinhji Godji Jadeja vs Sardar Sarovar Narmada Nigam Ltd on 23 August, 2021
Author: Vikram Nath
Bench: Vikram Nath, Biren Vaishnav
C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7255 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 7256 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 7257 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed YES
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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DILIPSINHJI GODJI JADEJA
Versus
SARDAR SAROVAR NARMADA NIGAM LTD & 1 other(s)
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Appearance:
MR.MAULIK NANAVATI, ADVOCATE for NANAVATI AND CO.(7105) for
the Petitioner(s) No. 1
MS.AISHVARYA GUPTA, AGP (1) for the Respondent(s) No. 2
MS.MANISHA LAVKUMAR, LD. SENIOR ADVOCATE with ROHAN
LAVKUMAR(9248) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
VIKRAM NATH
and
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C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 23/08/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1. These three petitions have been filed by the petitioners challenging land acquisition proceedings relating to survey nos.184, 214 and 215 of Village:Chassara, Taluka:Mundra, District:Kutch. It is the case of the petitioners that inadequate compensation has been awarded to the petitioners and therefore, the award dated 10.10.2013 passed in Land Acquisition Case No.33 of 2011 is bad. Procedural illegalities in the land acquisition proceedings, inasmuch as, non compliance of provisions of Sections 4, 6, 9 and 11 of the Land Acquisition Act, 1894 (hereinafter to be referred to as the 'Act of 1894' for short) is also a subject matter of challenge.
2. It is the case of the petitioners that by virtue of the consent award passed by the Special Land Acquisition Officer in case of 18 other similarly situated land owners, as compared to awarding them compensation of Rs.66/- per square meter, the petitioners have been deprived of compensation on the same lines by declaring an award dated 10.10.2013 fixing an amount of Rs.29.47 per square meter of non-irrigated land. The case of the petitioner is that while passing the award, no individual notices under Section 9 were Page 2 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 issued, violating the principles of natural justice and the award therefore is illegal and without following the mandatory statutory procedure. The petition was so filed in the year 2014 essentially on the aforesaid grounds.
3. By a subsequent amendment to the petition in the year 2016, the petitioners challenged the proceedings on the additional grounds that the notification dated 15.10.2011 mentioned in the award dated 10.10.2013 does not list the land belonging to the petitioner; that public hearing as envisaged under Section 9 did not take place. The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be referred to as 'the Act of 2013' for short) were pressed into service contending that the award dated 10.10.2013 was communicated only after 01.01.2014 and therefore the award in accordance with the provisions of Section 24(1)(b) ought to be considered as an award under the Act of 2013 and the petitioners are entitled to receive compensation as per the provisions of the 2013 Act. The Division Bench of this Court on 09.05.2014 recorded the following order and directed the parties to maintain status-quo since the possession was with the petitioners.
"Notice returnable on 21.6.2014.Page 3 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021
C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 Learned counsel appearing for the petitioner has urged that 17 persons out of the 21 persons whose lands have been acquired, they have been paid compensation at a particular rate by consent. The petitioner has also agreed and is ready to take compensation at the same rate which the respondents are not providing to them. The respondents shall explain as to why the compensation at the same rate which was being paid to other 17 persons is not being provided to the petitioner.
In this view of the matter, since possession is with the petitioner, we direct the parties to maintain status-quo till the next date of listing. D.S. permitted."
4. On 23.09.2014, the Court again passed an order recording the submission of the learned counsel for the petitioners Mr.Nanavati. Paras 4 to 7 of the order read as under:
"4. Mr.Nanavati, learned counsel appearing for the petitioners submitted that he is of the view that if the grace is shown by the State and the acquiring authority to treat these petitioners at par, so far as compensation amount is concerned with the other seventeen farmers in whose case the land price was fixed at Rs.66/- per Sq.Mtr., then even the challenge to acquisition may not be insisted upon. Of course this suggestion is without prejudice to continue with the challenge in question. At this stage, learned counsel for the petitioners went a step ahead and submitted that even he can persuade his client to give up additional interest that may accrue on the amount that may be worked out based upon Rs.66/- per Sq.Mtr. Of course he may insist for statutory interest which is otherwise also permissible in law. This also without prejudice to the rights and contentions of the petitioners to continue with the challenge in case if the authority do not come forward to show any grace. He submitted that authority if do not agree then his challenge would remain and in that case at the best the authority may have to resort to the provisions of new Act which would definitely render the entire proceedings in a state of efflux.Page 4 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021
C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021
5. At this stage, Mr.Munshaw submitted that time for availing the benefit of agreed jantri price was not taken advantage of by the petitioners and, therefore, that time limit having lapse it would be difficult for him to convince his client to agree to the proposition made on behalf of the petitioners.
6. The learned AGP submits that if the matters are adjourned to 8.10.2014 then appropriate instructions may be received on the proposition canvassed on behalf of the petitioners which is of course without prejudice to the rights to challenge the challenge so far as acquisition proceedings and their efficacy is concerned.
7. In view of these submission the Court have inclined to adjourn the matters to 8.10.2014. S.O. to 8.10.2014."
5. On 13.10.2014, the Division Bench of this Court once again recorded certain prima-facie observations and admitted the petition. The order reads as under:
"1. We have heard learned counsel Mr. Nanavati for the petitioners, learned counsel Mr. Munshaw and learned Assistant Government Pleader Mr. Antani for the respective respondents.
2. When the matter was inquired in light of the order dated 23.9.2014 passed by this Court in the present proceedings, learned counsel appearing for both the respondents submitted that it is not possible for their clients to pay compensation at par with other persons who have consented for the award.
3. It prima facie appears that the award is passed, attempt to pay compensation was made but the fact remains that the compensation has not been paid nor received by the petitioners. It is also an admitted position that the possession of the land in question has not been taken over pursuant to the so-called award. This aspect is coupled with Page 5 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 the fact that in one of the matters, being Special Civil Application No.7257 of 2014, one of the land owners Sushilkumari Jadeja, who had expired in the year 2006, was not served with notice nor her legal heirs were sent notice and the proceedings are drawn as if she was alive and notice is sent through Post which has not been received with due acknowledgment.
4. It is also an admitted position that for the other adjoining land owners, compensation as per the award has been paid at Rs.66/- per Sq. Mtr. plus statutory amount of interest, solatium, etc. If the matter is strictly considered in light of the provisions of Section 24 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the question of lapse of proceedings under the Land Acquisition Act, 1894 may be required to be considered and consequently, fresh proceedings under the Act of 2013 may be required to be initiated. Hence, the matters deserve consideration.
5. RULE returnable on 28th November 2014.
6. By way of interim relief, ad-interim relief granted earlier shall continue as interim relief with further observation that pendency of the present petitions as well as the interim order passed in these petitions shall not operate as a bar to the respondents and more particularly, the respondent No.1, to enter into any agreement with the petitioners to pay compensation at par with other persons in respect of whom the consent awards were passed and to get possession of the land by consent."
6. Mr.Maulik Nanavati learned counsel for the petitioners has in addition to filing the written submissions, made the following submissions:
6.1 That, the notification under Section 4 was dated 18.06.2012.Page 6 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021
C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 In the official gazette the same was published on 26.06.2012 showing the village name wrongly as Vovar instead of Chassara and the case number as 34/2011 instead of 33/2011 in the English copy of the notification. The notification was published in two local newspapers in vernacular language on 26.04.2012 and 26.06.2012. An amended notification correctly describing the village as Chassara was issued on 20.08.2012 and in the official gazette on 22.08.2012.
6.2 Section 4 requires publication of the notification in the official gazette, in two local newspapers circulating in the locality of which at least one shall be in the regional language and a public notice of the substance of the notification shall be given in the locality. In his submission, the notification dated 18.06.2012 was not properly published in the official gazette of the English language on 26.06.2012, a wrong name of the village was mentioned. The publication in the official gazette was not proper or such as envisaged in law.
6.3 The notification dated 18.06.2012 was published in two newspapers both of which were newspapers in vernacular language. The publication was not in English newspaper. He would rely on the provisions of the Official Languages Act, 1963 Page 7 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 and the Gujarat Official Languages Act, 1960 and submit that Section 3 of the Act of 1960 requires only bills, ordinances and rules to be in Gujarati.
6.4 There is violation of the mandatory procedure of Section 5A of the Act of 1984 inasmuch as, the amended notification in the official gazette was published on 22.08.2012 and the Section 6 notification thereafter was published within six days on 28.08.2012. Section 5A grants 30 days to any person whose land has been notified under Section 4 for lodging objection, whereas, the period between Section 4 and Section 6 notifications was not available as mandated by Section 5A of the Act of 1984. 6.5 As far as Special Civil Application No.7257 of 2014 is concerned, an additional ground of challenge has been raised by Mr.Nanavati that the proceedings under the Act of 1894, were bad as Section 6 notification was issued in the name of a dead person. 6.6 The acquisition is void-ab-initio for non-compliance of Section 9 of the Act of 1894. No individual notices were issued to the owners. Assuming that the notices were issued, the same were addressed either to a dead person or had returned with an endorsement "addressee not found". There was therefore non- Page 8 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 compliance of Section 9(3) of the Act of 1894.
6.7 In support of his submissions, Mr.Nanavati relies on the following decisions:
(I) In case of Khub Chand and others v. State of Rajasthan and others reported in AIR 1967 (SC) 1074. This judgment was in support of his submission that the provisions of Section 4 are mandatory.
(II) In case of Narindrajit Singh and Ranjit Singh and ors. v. State of U.P. and others reported in 1973 (1) SCC 157, regarding mandatory nature of Section 4.
(III) In case of Collector (District Magistrate) Allahabad and Another v. Raja Ram Jaiswal reported in 1985 (3) SCC 1 regarding non-compliance of Section 4 of Act of 1894.
(IV) In case of Kamal Trading Private Limited v. State of West Bengal and others reported in (2012) 2 SCC 25.
Reliance was placed on para 13 in context of the mandatory compliance of Section 5A of the Act of 1894.
(V) In case of Arumugha Mudaliar S/o Angappa Mudaliar reported in 2001 SCC OnLine Mad regarding the Page 9 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 flaw of issuance of notice under Section 6 to a deceased person.
7. Ms. Manisha Lavkumar, Senior Advocate assisted by Mr. Rohan Lavkumar appeared for the respondent no. 1 and Ms. Aishvarya Gupta, AGP appeared for respondent no. 2. Since the submissions were overlapping, for the sake of brevity, they are considered as under:
7.1 They have relied on the affidavits filed by the respective respondents and disputed the submissions made by the learned advocate for the petitioner in context of the violations under Sections 4, 6, 9 and 11 of the Act of 1894.
7.2 Ms.Lavkumar learned Senior Advocate would submit that there is no question of taking the benefit of the Act of 2013 inasmuch as, on record are the letters written to the petitioners for tendering compensation. She would submit that the Act of 2013 is inapplicable inasmuch as the award dated 10.10.2013 was communicated to the petitioner and was categorically admitted by them in their communication dated 28.10.2013. She would rely on the decision in the case of Indore Development Authority v.
Manoharlal reported in 2020 (8) SCC 129.
7.3 Written submissions have also been filed giving relevant Page 10 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 dates and chronology of events:
Initially, 21 plots were sought to be acquired from 21 farmers in Village: Chassara. In all, 18 farmers gave their consent for their lands being acquired at the rate of Rs. 66/per sq. mtrs (non-
irrigated land) and Rs. 78/per sq. mtrs. (irrigated land). Although the Petitioners expressed their oral consent to the land being acquired, they did not participate in the formalities necessary for the finalization of the Consent Award. Thus, the Petitioners' land came to be acquired under the Land Acquisition Act, 1894 and an award came to be passed.
Sr. Particulars
No.
1. Preliminary Notification declaring intention under Section 4 of the Act
a) Notification under Section 4 is dated 18.06.2012.
b) Notification under Section 4 was published in Gujarati and English, on 26.06.2012.
c) Due publication of the Notification under Section 4 in two Gujarati Newspapers in vernacular language: Chanchal (on 24.06.2012) and Jayhind (on 26.06.2012).
d) Public notice was caused to be given of the substance of the notification under Section 4 (in Gujarati) on the notice board of the Chhasra Gram Panchayat, on 20.07.2012.
e) A corrigendum to rectify an error in the English version was notified and gazetted on 20.08.2012 and 22.08.2012, Page 11 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 respectively.
2. Section 5A of the Act No objections under Section 5A, were received from any of the petitioners in respect of the lands in question.
3. Notification of requirement of the land public purpose under Section 6 of the Act
a) Notification under Section 6 is dated 28.08.2012.
b) Notification under Section 6 was published in Gujarati and English, on 01.09.2012.
c) Due publication of the Notification under Section 6 in two Gujarati Newspapers in vernacular language: Chanchal (on 03.09.2012) and Divyabhaskar (on 19.10.2012)
d) Public notice was caused to be given of the substance of the notification under Section 6 (in Gujarati) on the notice board of the Chhasra Gram Panchayat, on 03.12.2012.
4. Notification under Section 9 of the Act
a) As stipulated under Section 9, the Special Land Acquisition officer, caused public notice of the notification under Section 9 (in Gujarati) to be given on the notice board of the Chhasra Gram Panchayat on 12.12.2012.
b) A rojkam of such publication was carried out in the presence of the members of the Chhasra Gram Panchayat.
c) A notice dated 18.12.2012 under Section 9 was issued to the Petitioners on the addresses as mentioned in the revenue records, asking them to remain present on 22.01.2013 at the office of the Gram Panchayat.
d) Subsequently, on 17.01.2013 another notice was sent to the addresses of the Petitioners, as mentioned in the revenue records asking them to remain present for the hearing under Section 9 on 19.02.2013, instead of 22.01.2013. The said Page 12 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 Letter was returned with the postal endorsements showing "no one residing".
e) On 19.02.2013, the hearing under Section 9 took place and none of the Petitioners remained present for the same.
5. Award under Section 11 of the Act and first attempt by Respondents to tender compensation to the Petitioners
a) Award was published on 10.10.2013.
b) Copy of the award and notice under Section 12(2) were sent to the petitioners on 10.10.2013.
c) The process server informed the Special Land Acquisition Officer on 17.10.2013, that the petitioners could not be found at such address. Under the circumstances, the process server, additionally, served a copy of the award and the notice under Section 12(2), on one, Ghanshyamsinh Jadeja ("the vahivatdaar" of the petitioners) through RPAD.
d) Award was served to Ghanshyammsinh Jadeja on 19.10.2013. Copy of RPAD acknowledgment has been produced.
e) In response to the service of the award on 19.10.2013, letters dated 28.10.2013 were addressed by all three petitioners stating that the award was not accepted by them on ground of non-issuance of proper notice under Section 9.
6. a) Pursuant to such letters dated 28.10.2013 addressed by the petitioners, another letter dated 13.12.2013 was sent by Ghanshyamsinh Jadeja withdrawing the previous letters dated 28.10.2013, on behalf of the three petitioners.
b) Ghanshyamsinh Jadeja even collected the Form for Page 13 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 payment of compensation at Jantri Rate from the office of Respondent No. 1 but did not come forward after completing the necessary procedure and formalities.
7. Subsequent attempt by respondents to tender compensation to the petitioners
a) Notice dated 21.02.2014 tendering compensation, was issued by the authorities to the petitioners.
b) Such notice was accepted by Ghanshyamsinh Jadeja on behalf of all three petitioners on 28.02.2014. RPAD Slips have been produced containing signature of Ghanshyamsinh Jadeja on behalf of all the petitioners.
8. In response to the notice dated 21.02.2014, tendering compensation, the petitioners addressed a Letter dated 11.03.2014 refusing to accept compensation.
9. Rojkam dated 12.03.2014, signed by Ghanshyamsinh Jadeja on behalf of all petitioners stating the award is not acceptable by them.
10. The captioned petitions were preferred on 08.05.2014 before the Hon'ble Court and vide order dated 09.05.2014, status- quo was ordered to be maintained by the Hon'ble Court. 7.4 NOTIFICATION UNDER SECTION 4 OF THE 1894 ACT WAS PUBLISHED IN ACCORDANCE WITH LAW The English and Gujarati versions of the Section 4 notification were published on 20.06.2012. Whilst the Notification in Gujarati bore the correct name of the Village and Case Number being village "Chhassra" and case number "33/2011", the Notification in English inadvertently reflected the village name Page 14 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 "Vovar" and Case Number "34/2011".
7.5 It should be noted that the notification was published in two daily newspapers circulating in the locality in which the lands are situated, in the vernacular language and public notice of the notification was also given in vernacular language and not in English. And thus, public notice was given of the correct version of the notification.
7.6 Most of the correspondences, addressed by the Petitioners to the Respondent authorities have been in the vernacular language. The said inadvertent mistake does not go to the root of the acquisition and it cannot be said that the petitioners suffered any prejudice due to the inadvertent mistake in publishing the English version of the Section 4 notification.
7.7 Section 4(3) of the 1894 Act employs the usage of the words, "in two daily newspapers circulating in that locality of which at least one shall be in the regional language" and thus, the Statute does not mandate that a publication take place in both English and a vernacular language. The Statute only prescribes that of the two newspapers having local circulation, one of which must be in the vernacular language. Thus, there was no infirmity in the Page 15 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 action of the Special Land Acquisition officer in publishing the Section 4 notification in two Gujarati Newspapers in vernacular language: Chanchal (on 24.06.2012) and Jayhind (on 26.06.2012). 7.8 Ample time was granted to the petitioners from the date of the publication of the Section 4 notification in Gujarati on 26.06.2012. Moreover, the issuance of the corrigendum on 20.08.2012 does not tantamount to issuance of a fresh notification under Section 4 and the same would date back to the date of the original issuance of the notification under Section 4, i.e. 26.06.2012.
7.9 The Official Languages Act, 1963 is an Act to provide for the languages which may be used for the official purposes of the Union, for transaction of business in Parliament, for Central and State Acts and for certain purposes in High Courts and thus, would not be applicable in the facts and circumstances of the present case. 7.10 PROCEDURE UNDER SECTION 9 OF THE 1894 ACT WAS DULY COMPLIED WITH 7.11 Additional Affidavit dated 29.06.2021 filed by the Special Land Acquisition Officer indicates the rojkam of the publication of the notice under Section 9, as carried out in the presence of the Page 16 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 members of the Chhasra Gram Panchayat on 12.12.2012, was placed on record of the Hon'ble Court. It should be noted that there is no denial by the petitioners in respect of such rojkam. Notice under Section 9 was sent by post to the Petitioners' address as mentioned in the revenue records, i.e., the land being acquired. It is submitted that Section 9 of the 1894 Act clearly stipulates a notice to be served on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as they reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situated. 7.12 The notice under Section 9 was addressed to both the owners of the land bearing Survey No. 215, whose names were reflected in the mutation records, i.e., Sushilakumari Jadeja and Adityasinh Jadeja (SCA No. 7257 of 2014). The death of Sushilakumari Jadeja in 2006 was never informed to the Revenue Authorities and no mutation to the said effect has taken place. Even today the Revenue records reflect the names of Suhilakumari Jadeja and Adityasinh Ghanshyamsinh Jadeja in respect of the land bearing Survey No. 215.
7.13 It is the duty of the petitioners to get the records of the Government up-to-date and it is not for the Special Land Page 17 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 Acquisition Officer to make roving inquiries to find out as to who are the persons entitled to get compensation. In this regard, the observations of the Hon'ble Court in Bhimjibhai Khodabhai Patel v. State of Gujarat & Ors. reported in 1996 SCC OnLine Guj 92, merit consideration. The relevant observations are reproduced hereunder:
"23. Thus, it is very clear that if there is no mutation entry, the Special Land Acquisition Officer cannot be blamed. It is for the purchaser of a land to get the records of the Government up-to-date and if he remains negligent, thereafter he has no right to blame others. In the instant case, person whose name appeared in the record is served with the notice as pointed out from the panchnama. As observed by the Apex Court in the case of Sureshchandra C. Mehta v. State of Karnataka reported in 1994 Supp (2) SCC
511. It is not necessary for the Land Acquisition Officer to make roving inquiries as to who is the person entitled to get notice under Section 9(3) of the Act. ..."
7.14 DUE SERVICE OF THE AWARD UNDER SECTION 11 AND NOTICE UNDER SECTION 12(2) OF THE 1894 ACT. 7.15 The award dated 10.10.2013, under Section 11 was duly served upon the petitioners. Whilst service of a copy of the award and the notice under Section 12(2) to the petitioners, was attempted immediately after the award was passed on 10.10.2013, since the petitioners could not be found at such address, the same were served upon Ghanshyammsinh Jadeja ("the vahivatdaar" of the Page 18 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 petitioners) through RPAD on 19.10.2013.
7.16 To the service of the award on 19.10.2013, letters dated 28.10.2013 were addressed by all three petitioners stating that the award was not accepted by them. The letters dated 28.10.2013, are signed by each of the petitioners, i.e., Dilipsinh Jadeja, Devrajsinh Jadeja and Ghanshyamsinh signs for and on behalf of Adityasnih Jadeja. These letters clearly indicate that the award has been duly served on the petitioners. The petitioners cannot be now permitted to relegate from these letters, bearing their own signatures. 7.17 The letter dated 13.12.2013 was addressed by Ghanshyamsinh Jadeja on behalf of the petitioners. The same has not been denied, neither have the earlier letters dated 28.10.2013, addressed by the petitioners themselves. The language used in the letter dated 13.12.2013, clearly indicates that the same was addressed by Ghanshyamsinh Jadeja on behalf of all the petitioners.
7.18 SUPPRESSION OF MATERIAL FACTS AND DOCUMENTS BY
THE PETITIONERS
7.19 The Original Petitions filed by the Petitioners did not furnish any communications addressed by them or their representative that Page 19 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 have been placed on record of the Hon'ble Court, in the various affidavits filed by the Respondents. Signed RPAD dated 19.10.2013 of Ghanshyamsinh Jadeja, representative of the Petitioners, receiving the Award.
7.20 On 11.03.2014, the Petitioners' in response to the communication dated 21.02.2014, received hereinabove, did not accept payment of the award and once again reiterated their objections contained in the letter dated 28.10.2013 (which were in anyway withdrawn on 13.12.2013). This document also proves, not only receipt of the Award but also of receipt of the tender of payment.
7.21 INAPPLICABILITY OF THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION REHABILITATION AND RESETTLEMENT ACT, 2013 7.22 A bare perusal of Section 24 of the 2013 Act would indicate that the Land Acquisition proceedings shall be deemed to have lapsed in cases where no award under section 11 of the 1894 Act has been made. In the facts of the present case, the award under Section 11 of the 1894 Act was passed on 10.10.2013, before the 2013 Act came into force.
Page 20 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 7.23 A copy of the award and the notice under Section 12(2) was received by the Petitioners, has been categorically admitted by them in their communication dated 28.10.2013. Furthermore, another attempt was made by the authorities vide notice dated 21.02.2014, to serve a copy of the award, the notice under Section 12(2) as well as to tender compensation. Such notice was also duly served upon the Petitioners and the same was categorically admitted by them vide their communications dated 11.03.2014 and was further admitted by Ghanshyamsinh Jadeja on 12.03.2014. Thus, the respondent authorities have duly complied with the obligations as imposed by Section 31(1) of the 1894 Act, which clearly states that the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award.
7.24 In Indore Development Authority v. Manoharlal, (2020) 8 SCC 129 (hereinafter referred to as "the Indore Development Authority case"). In this case, the Hon'ble Apex Court has categorically held that the deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not Page 21 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 been taken nor compensation has been paid.
7.25 In the facts of the present case, none of the said conditions stand fulfilled and the reliance upon Section 24 of the 2013 Act as sought to be placed by the Petitioners, is thoroughly misplaced, inasmuch as:
a) In the present case, the award under Section 11 of the 1894 Act was passed on 10.10.2013 whereas the 2013 Act came into force on 01.01.2014. Thus, the five year requirement as imposed by Section 24 is not satisfied.
b) The physical possession of the lands in question, could not be taken by the respondent authorities by virtue of the status-quo order passed by this Hon'ble Court on 09.05.2014.
c) Various attempts were made by the respondent authorities to tender compensation to the Petitioners, however, the Petitioners denied to accept the payment of the compensation. Further proceedings in respect of depositing the amount in the Treasury office could not be undertaken due to the status-quo order passed by this Hon'ble Court on 09.05.2014.
7.26 The relevant observations of the Hon'ble Supreme Court in Page 22 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 the Indore Development Authority case have been reproduced hereunder:
"366.5 In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-
deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act."
8. Having considered the submissions made by the learned advocates for the respective parties, we may deal with them as under:
A. Regarding violation of the provisions of Section 4 of the Land Acquisition Act, 1894.
Section 4 reads as under:
"4 Publication of preliminary notification and powers of officers thereupon: (1) Whenever it appears to the [appropriate Government] that land in any locality [is needed or] is likely to be needed for any public purpose [or for a company] a notification to that effect shall be published in the Official Gazette [and in two daily newspapers circulating in that locality of which at Page 23 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 least one shall be in the regional language], and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [(the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification)].
(2) Thereupon it shall be lawful for any officer, either, generally or specially authorised by such Government in this behalf, and for his servants and workmen,- to enter upon and survey and take levels of any land in such locality; to dig or bore in the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle:
Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so."
The notification under Section 4 was dated 18.06.2012. It was published in the official gazette in Gujarati and in English on 26.07.2012. Section 4 of the Act envisages that in addition to the notification being published in the official gazette, it has to be published in two daily newspapers circulating in the locality of which at least one should be in regional language. What is Page 24 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 borne out from the contents of the additional affidavit-in-reply filed on behalf of the respondent no.2 on 08.03.2016 is that both the English and the Gujarati versions were published in the official gazette. The notification in English inadvertently showed the name of the village as 'Vovar' and the case number as 34/2011. We are of the opinion that reading Section 4 of the Act would indicate that the publication has to be in the official gazette. The language of the publication is not expressly mentioned. From the records, it is evident that the mode of communication between the petitioners and the authority was Gujarati. Even the contention of Mr.Nanavati that the publication has to be in one English newspaper is also misconceived as what the section indicates is that the publication has to be in two daily newspaper of which at least one should be in the regional language. The section therefore does not mandate that the publication must be both in English and a vernacular language. From the record, it is borne out that the Section 4 notification in case of the petitioners was published in two Gujarati newspapers in vernacular language viz. in newspaper 'Chanchal' on 24.06.2012 and 'Jayhind' on 26.06.2012.
Mr.Nanavati's reliance on the decision in the case of Khub Chand (supra), Narindrajit Singh and Ranjit Singh (supra) and Page 25 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 Collector (District Magistrate) Allahabad and Another (supra) are not applicable, inasmuch as, in the facts of this case, having interpreted the compliance of Section 4 as discussed hereinabove, the decisions are not applicable.
B. Regarding Section 5A of the Act of 1894 The contention of Mr.Nanavati that Section 5A of the Act of 1894 providing a mandatory window of 30 days to lodge objections was also violated taking the date of correct notification of 22.06.2012 as the last date of publication and the date of Section 6 notification being 28.06.2012 and that there giving only six days, is also misconceived. The corrigendum issued to rectify an error in the English version gazette on 22.08.2012 cannot be taken as an Act of issuing a fresh notification under Section 4. The original notification under Section 4 would relate back to the one issued on 26.06.2012 and therefore, when Section 6 notification was published in Gujarati and English on 01.09.2012, the window of 30 days was taken care of and therefore there was no violation of Section 5A of the Act read with Section 6 of the Act of 1894.
Even otherwise, the purpose of notification under Section 4 is to give notice of the intention of acquiring land. In the facts, it is evident that a correct notification inasmuch as the village and the Page 26 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 case number was given in Gujarati language. The petitioners have communicated with the respondents in Gujarati. No prejudice would therefore is caused with the petitioners merely because there is an error in the notification published in English. C. Reliance on the provisions of the Official Languages Act, 1963, and the Gujarat Official Languages Act, 1960. This contention is misconceived. As far as the Official Languages Act, 1963 is concerned, it is an Act to provide for languages which may be used for the official purposes of the Union for transaction of business in Parliament for Central and State Acts and would therefore not be applicable to the facts of the case. Regarding the Gujarat Official Languages Act, 1963, reading Section 2 would indicate that Gujarati shall be one of the languages to be used for all official purposes of the State. Section 4 of the Act is only for the purposes of Bills, Ordinances and Rules and would not cover notifications under the Act of 1894. The relevant provisions read as under:
THE OFFICIAL LANGUAGES ACT, 1963 ACT NO. 19
OF 1963 [10th May, 1963.] An Act to provide for the languages which may be used for the official purposes of the Union, for transaction of business in Parliament, for Central and State Acts and for certain purposes in High Courts.Page 27 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021
C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 Section 3. Continuance of English language for official purposes of the Union and for use in Parliament.--(1) Notwithstanding the expiration of the period of fifteen years from the commencement of the Constitution, the English language may, as from the appointed day, continue to be used, in addition to Hindi,-- (a) for all the official purposes of the Union for which it was being used immediately before that day; and (b) for the transaction of business in Parliament: Provided that the English language shall be used for purposes of communication between the Union and a State which has not adopted Hindi as its official language:
Provided further that where Hindi is used for purposes of communication between one State which has adopted Hindi as its official language and another State which has not adopted Hindi as its official language, such communication in Hindi shall be accompanied by a translation of the same in the English language: Provided also that nothing in this sub- section shall be construed as preventing a State which has not adopted Hindi as its official language from using Hindi for purposes of communication with the Union or with a State which has adopted Hindi as its official language, or by agreement with any other State, and in such a case, it shall not be obligatory to use the English language for purposes of communication with that State. (2) Notwithstanding anything contained in sub-section (1), where Hindi or the English language is used for purposes of communication--
(i) between one Ministry or Department or office of the Central Government and another;
THE GUJARAT OFFICIAL LANGUAGES ACT, 1960:
Section 2. Hindi in Devnagari script (hereinafter referred to as "Hindi ") and Gujarati shall be the languages to be used for all official purposes of the State of Gujarat except such purposes as the State Government may, from time to time, by notification in the Official Gazette, specify: Provided that the State Government may, by notification in the Official Gazette, declare that Hindi shall be used for such official purposes only as may be specified in the notification.
Section 4. Unless otherwise provided by a notification under section 2, Hindi and Gujarati shall from such date as the Page 28 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 State Government may, by notification in the Official Gazette, appoint in respect thereof, be the languages to be used for -- (a) all Bills introduced, or amendments thereto moved in the State Legislature, (b) all Acts passed by the State Legislature and all Ordinances promulgated by the Governor under article 213 of the Constitution, and (c) all orders, rules, regulations and bye-laws issued by the State Government under the Constitution or under any law made by Parliament or the State Legislature.
D. Regarding procedure under Section 9 of the Act of 1894:
Section 9 of the Act of 1894, in particular sub-section (3) of Section 9 provides that the Collector shall serve notice on the occupier of such land and on all such persons known or believed to be interested therein or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate.
The contention of the counsel for the petitioner was that since the award under Section 11 was published without proper notice, the same be held as misconceived. Perusal of the additional affidavit filed by the respondent no.2 on 29.06.2021 reveals the following:
(a) On 12.12.2012, at the office of Chassara Gram Panchayat, a public notice was placed. A Rojkam of such publication at a public place was carried out in the presence of the members of the Chassara Gram Panchayat.
(b) Reading Section 9 would indicate that the notice has to be Page 29 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 served within the revenue limits where the lands are situated. At this stage, it is necessary to peruse the letters dated 28.10.2013 which were addressed by the petitioners which form part of the record of the additional affidavit of the respondent no.2. Reading of these letters would indicate especially in context of the petitioners of Special Civil Application No.7257 of 2014 that admittedly Shushilaben who had died, no consequential modification in the revenue entries was made in the revenue record. Admittedly therefore, on the date when Section 9 notice was issued in the name of Sushilaben and the owner Adityasingh, their names existed on the revenue record. This was therefore, service of notice within the revenue district in which the land is situated. They were also served at the last known address and therefore, the notices were in accordance with the statutory provision of Section 9 of the Act of 1894. In the case of Bhimjibhai Khodabhai Patel v. State of Gujarat and others reported in 1996 SCC Online (Guj) 92, the Court made the following observations which are reproduced as under:
"23. Thus, it is very clear that if there is no mutation entry, the Special Land Acquisition Officer cannot be blamed. It is for the purchaser of a land to get the records of the Government up-to-date and if he remains negligent, thereafter he has no right to blame others. In the instant case, person whose name appeared in the record is served Page 30 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 with the notice as pointed out from the panchnama. As observed by the Apex Court in the case of Sureshchandra C. Mehta v. State of Karnataka reported in 1994 Supp (2) SCC
511. It is not necessary for the Land Acquisition Officer to make roving inquiries as to who is the person entitled to get notice under Section 9(3) of the Act. ..."
(c) That brings us to the next contention of the counsel for the petitioners with regard to the procedural validity and the challenge to the award passed under the Act of 1894 under Section 11 on 10.10.2013 and its effect on the applicability of the provisions of the Act of 2013. To recapitulate briefly the contention of the petitioners, clearly an afterthought, was that since the award of 10.10.2013 was not served on them before 01.01.2014, they were entitled to compensation under the provisions of Section 24 of the Act of 2013. Perusal of the replies and the additional affidavits so filed would indicate otherwise.
(d) Award was published on 10.10.2013.
(e) Copy of the award and notice under Section 12(2) of the Act
of 1894 were sent to the petitioners on 10.10.2013. On 17.10.2013, the process server informed the Land Acquisition Officer that since the petitioners were not found at the given address, a copy was served to the power of attorney Shri Ghanshyamsinh Jadeja through RPAD. Postal receipts dated 19.10.2013 annexed to the Page 31 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 additional affidavits on behalf of the respondent no.2 dated 29.06.2021 indicate receipt of the award. Even the letters dated 28.02.2013 addressed by all the petitioners unequivocally indicate an admitted position that the award dated 10.10.2013 was served on them. The subsequent letters of Ghanshyamsinh Jadeja withdrawing the letters also significantly indicates an admission of he having received a notice under Section 12(2) of the Act together with the copy of the award. Shri Ghanshyamsinh Jadeja even received forms on behalf of the petitioner for accepting the consent award.
(f) A communication dated 21.02.2014 annexed to the additional affidavit filed on behalf of the respondent no.1 on 31.03.2021 would indicate that the petitioners were informed and were tendered the compensation amount in respect of the lands in question. Such notices were accepted by Ghanshyamsinh Jadeja on behalf of the petitioners as is evident from the signature on the acknowledgment slips of the postal department. By a letter dated 11.03.2014, the petitioner refused to accept the amount of compensation. A Rojkam to that effect was made on 12.03.2014 which was signed on behalf of the petitioners by Shri Ghanshyamsinh Jadeja.
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(g) Noteworthy it is that these documents have been brought on record by the respondents clearly leading us to believe that by not coming out clean on facts the petitioners have suppressed this, particularly in view to bring in their case within the ambit of the Act of 2013.
(h) A bare perusal of Section 24 of the Act of 2013 would indicate that land acquisition proceedings shall be deemed to have lapsed if no award is made under Section 11 of the 1894 Act. Admittedly in the facts of this case, an award was made on 10.10.2013. It was communicated to the petitioners, notice under Section 12(2) was received by them, attempt was made by the authorities to serve the award and tender compensation, compensation was refused on their behalf on 11.03.2014. There was compliance therefore of Section 31(1) of the Act of 1894 and it was clearly not a case falling within the ambit of Section 24 of the Act of 2013. It has come on record that after the award dated 10.10.2013 the letters dated 28.10.2013 were addressed by all the petitioners stating that the award was not accepted. The letters were signed by the petitioners. Subsequently, even to the notice dated 21.02.2014 tendering compensation, the petitioners clearly refuse to compensation by their letter dated 11.03.2014. In fact, Page 33 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 after their letter of 28.10.2013 they had withdrawn their consent also. There was compliance therefore of Section 31(1) of the Act of 1894 and it was clearly not a case falling within the ambit of Section 24 of the Act
(i) In the case of Indore Development Authority (supra) the Supreme Court has categorically held that there can be a deemed lapse of compensation only where there is inaction on the part of the authorities. Relevant it will be to reproduce para 366.5 thereof which reads as under:
"366.5 In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act."
(j) From the facts of the case, it is evident that an award under Section 11 was passed on 10.10.2013. Physical possession of the land could not be taken by virtue of the status-quo order passed by this Court on 09.05.2014. Attempts were made by the authorities to tender compensation to the petitioners, which was denied by them. No case therefore is made out even in context of the Page 34 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021 C/SCA/7255/2014 CAV JUDGMENT DATED: 23/08/2021 applicability of the Act of 2013.
9. For all the aforesaid reasons, the petitions are dismissed with cost of Rs.50,000/- in each petition. Interim relief stands vacated forthwith. Civil Application stands disposed of accordingly.
(VIKRAM NATH, CJ) (BIREN VAISHNAV, J) FURTHER ORDER After the judgement was pronounced, request was made by Ms. Manvi Damle, learned advocate appearing for Mr. Maulik Nanavati, learned counsel for the petitioners that the judgement may be stayed for a period of four weeks to enable the petitioners to further pursue their remedy. We, however, are not inclined to accept such request in view of the findings recorded by us and especially when we have dismissed the petitions with cost. Request is rejected.
(VIKRAM NATH, CJ) (BIREN VAISHNAV, J) ANKIT SHAH Page 35 of 35 Downloaded on : Mon Aug 23 21:02:40 IST 2021