Gujarat High Court
Narendrakumar Ambalal Patel vs Union Of India on 27 October, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya, A.G.Uraizee
C/SCA/9734/2018 IA ORDER DATED: 27/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 9734 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 9755 of 2018
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UNION OF INDIA Versus NARENDRAKUMAR AMBALAL PATEL ============================================================================== Appearance:
MS ARCHANA U AMIN for the PETITIONER(s) No. GOVERNMENT PLEADER for the RESPONDENT(s) No. MR SAURABH G AMIN for the RESPONDENT(s) No. NOTICE UNSERVED for the RESPONDENT(s) No. ================================================================ CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE A.G.URAIZEE Date : 27/10/2021 COMMON IA ORDER (PER : HONOURABLE MR. JUSTICE A.G.URAIZEE)
1. The applicant, who is original respondent No.1 of Special Civil Application No.9734/2018 has preferred present application to review the judgment dated 20.12.2018 in Special Civil Application No.9734/2018 & 9755/2018.
2. We have heard elaborate arguments of Ms. Archana Acharya, learned advocate for the applicant, Mr. Saurabh Amin, learned advocate for respondent Nos. 1 to 4 and Mr. Tirthraj Pandya, learned AGP for respondent No.5.
3. Ms. Archana Amin, learned advocate, Mr. Saurabh Amin, learned advocates for the applicant and private respondent respectively have submitted gist of their oral arguments. We, therefore, instead of recording their oral arguments, extracting herein gist of their written arguments which are as under:-
Page 1 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021C/SCA/9734/2018 IA ORDER DATED: 27/10/2021 Written arguments on behalf of the applicant "Errors of facts and law apparent in the order:-
1. Award was made on 9/2/2011. Some of the original petitioners have filed arbitration Applications contending to save the limitation.
Affidavit in Reply as well as written submissions in the main matter it is clearly pointed out that Arbitratin Application U/s. 20F(6) of the Railways Act, 1989 (the Act) are filed in the year 2012 meaning thereby the compensation was offered and not acceptable to them. Therefore, statutory remedy was availed. This proposition of law has not been considered. Therefore, there is an error of law.
As per the decision of this Hon'ble Court rendered in the case of Jayantibhai Narsinbhai Prajapati Versus Collector reported in 2015 JX (Guj.) 879:
2015 AIJEL-HC233261, there is no specific limitation of filing application U/s 20F(6) of the Act.
Since the Arbitration Applications filed by the petitioners were not within the knowledge and also not traceable at the time of hearing of the main matter, Review of filed to place the same on record and to point out the errors of law as well as facts.
2. Notice offering the Compensation were given to the original petitioners on 07/10/2013 which was not acceptable by them and an endorsement to that effect was also made on the back side of the Notices. As per the law propounded by the Hon'ble Supreme Court in a case reported in (2020) 8 SCC Page 2 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021 C/SCA/9734/2018 IA ORDER DATED: 27/10/2021 123 para 366.5, the obligation of the acquiring body to pay the compensation is fulfilled and complete upon offering of the amount of compensation. The acquiring body cannot be penalised for non-payment of compensation due to refusal or otherwise.
In above case for non-payment of the compensation due to refusal, the acquiring body is monetarily penalised by making payment at the rate of order dated i.e. 20/12/2018. Possession was taken with police protection in the year 2016 and project work was started. But subsequently the petitioners created hurdles and since then the work has stopped. Moreover, the due to the direction given in the order dated 20/12/2018, the petitioners are not allowing to enter into the land.
3. Prayer in the petition is to declare that the land acquisition has lapsed and/or vitiated by the inordinate delay of 6/7 years in making payment and taking possession based on the statements made on oath in the main matter which are absolutely false. The said fact including issuance of notices offering compensation and refusal thereof was stated in the Reply but not considered. So this is an error of fact.
4. Scheme of the Act envisages passing of 3 different awards: One for land U/s.20F(2), Second for supertructure U/s.20G(4) and third award for N.R.R.P., 2007 U/s.20(O) of the Act. Therefore, the holding that the petitioner were justified in not accepting the awarded compensation because the competent authority had not passed complete award in respect of land, building and other immovable Page 3 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021 C/SCA/9734/2018 IA ORDER DATED: 27/10/2021 property or assests attached to the land is erroneous. This error is apparent.
In light of above errors and other sufficient reason like extra burden over the bublic exchequr, the order dated 20/12/2018 may kindly be reviewed."
Written arguments on behalf of respondent Nos.1 to 4 (original petitioners) "1. Lands of the opponents (ori. Petitioners) were notified for acquisition under . 20A of the Railways Act by notification dated 25.05.2009. Thus the market value of the land, structure, tree and things attached to the land was pegged as of 25.05.2009. Declaration under S. 20E was published on 02/03/2010. By virture of S. 20F, the award has to be made in 1 year or extended period of 6 months from notification under S. 20E, failing which acquisition lapses. Partial award was made on 09.02.2011 determining market value for land only. The award for NRRP was made on 12.03.2014 and award for structure, trees and things attached to earth was made on 16.10.2014. Compensation was offered for the first time by notice dated 24.04.2018 and hence petitions was preferred in June 2018, contenting that award was not made within period of 18 months and inordinate delay in ordering compensation has rendered it issusory.
2. Contending of original petitioners/claimants (respondents herein) are recorded in para 5(1) to 5(5) and Contentions of DFFCCIL (applicant herein) are recorded in para 6(1) to 6(29) of judgement under review.
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3. This Hon'ble Court vide judgment under review dated 20.12.2018, has considered the provisions of the Act, judgement of this Hon'ble Court passed in Hansaben Prafulbhai Desai vs. Union of India (SCA 13389 of 2013), wherein it is held that the term 'land' in S. 20 F includes things attached to land. The Court further considering Pashabhai Ambalal Vs. Union of India (SCA 12438 of 2012) and Ved Prakash and ors Vs. Union of India (1994) 1 SCC 45, has held in para 9 that it is undisputed by DFCCIL that compensation in terms of award dated 09.02.2011 was offered for the first time after a delayed period of 2.6 years in October 2013 and even that award was not a complete award as the Competent authority had not passed a complete award in respect of land, building, and other immovable property or assets attached to the land and therefore the respondents have not complied with the requirement of the Railways Act. However, instead of quashing the acquisition, only to ensure that the project is not affected, this Hon'ble Court vide para 15, directed the Competent Authority to recalculate the compensation of land and supper structure at the market value prevailing as of today and pay the same to the petitioner without any delay and take possession of land after completion of the said exercise.
4. The present Review Application has been filed by DFCCIL, essentially rasing and re-arguing the very same issues which were argued and have been decided vide the judgement under review. The documents produced vide additional affidavit (pg. 52 to 81) are the same as were produced vide Annx R-1 Page 5 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021 C/SCA/9734/2018 IA ORDER DATED: 27/10/2021 to R-4 of Reply filed by the applicant DFCCIL in the main petition.
At the time of final hearing the following 3 contentions were raised.
(i) Contention: There is error apparent on face of record. Court has erred in holding that compensation was first offered for the first time vide notice dated 24.04.2018 and not vide notice dated 07.10.2013.
RE: The contention that compensation was offered vide notice dated 07.10.2013 was taken by DFCCIL in its reply in the main petition and was denied by the original petitioners in rejoinder. This contention of DFCCIL is recorded in para6(9), (10), (11) and the response of original petitioners is recorded in para 5(4) of the judgment. The same is dealt with in para 9, wherein instead of deciding the factual aspect, this Hon'ble Court proceeded on a footing that it is not disputed by DFCCIL that that the compensation as determined by award dated 09.02.2011, was offered for the first time in October 2013, and therefore it is held that compensation was not offered within reasonable period. It is further held that the petitioners were justified in not accepting the awarded compensation because competent authority had not passed complete award in respect of land, building and assets attached to land.
Thus there is no error much less error apparent on face of the record.
ii) Contention: The applicant (DFCCIL) contended that the petitioners had filed references for enhancement Page 6 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021 C/SCA/9734/2018 IA ORDER DATED: 27/10/2021 of compensation in 2012. the applicant came to know about the said fact only in 2017. it is a new evidence.
RE: The said contention is absolutely false and contrary to record. In para 5 of the petition (page 8) it has been specifically stated that the reference for enhancement of compensation were filed to avaoid limitation. The applicant-DFCCIL in para 40 of their reply (pg. 48 of petition), have also referred to the same. Thus there is no suppression and this is not a new fact/evidence which has now caome to the knowledge of the applicant after the judgment. DFCCIL is a party respondent in the said references of 2012 and they are aware about the same since then.
iii) Contention: It is further contended that as per scheme of S. 20F, separate awards can be passed for land and structure and award for structure and trees can be made even after 18 months of notification under S. 20E and the statutory limitation does not apply to the same.
The very same contention was taken during hearing of the main petition and is recorded in para 6(20) & (21) of the judgement. The said contention is dealt with in para 8 to 10 relying upon binding precedent (Hansaben v/s Union of India) of this Hon'ble Court and other precedents cited and discussed therein.
Thus there is no error or apparent error. The applicant trying to re-argue the petition as if it is an appeal. The Hon'ble Apex Court has held in (2013) 8 Page 7 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021 C/SCA/9734/2018 IA ORDER DATED: 27/10/2021 SCC 337 (para22) "the mere fact that different views on the same subject are possible is no ground to review the earlier judgement". Para 23 "it is not permissible for an erroneous decision to be 'reheard and corrected. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise"
5.The respondents rely upon (i) AIR 1964 AIR SC 1732 (para-32)
(ii)(2013) 8 SCC 337 (PARA 22, 23, 24 & 25)
(iii)(1979) 4 SCC 389 (para 3, 4) In view of the above, the Review Application is dehors merits and deserves to be dismissed with cost."
4. It emerges from the written submissions of the applicant that the review of the judgment of this Court rendered in Special Civil Application No.9734/2018 & 9755/2018 is sought on the following grounds:-
(A) The impugned award was made on 25.10.2012 with a view to save limitation, some of the land owners have filed arbitration application under Section 20(F)(6) of the Railways Act, 1989 ('the Act' for short) in the year 2012.
It is, therefore, very clear that the compensation was offered to the land owners, however, it was not acceptable to them. This fact is not considered in the judgment under review. Hence, there is an error. Judgment of this Court in the case of Prajapati (supra) is relied upon in support of this contention.
Page 8 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021C/SCA/9734/2018 IA ORDER DATED: 27/10/2021 (B) The original petitioners have prayed for declaration that the land acquisition had lapsed and or fixed by inordinate delay of 6/7 years in making the payment and taking possession. This fact was stated in reply. However, it is not considered which amounts to an error of fact.
(C) Though the scheme of the Act enwished passing of three different awards, namely, (i) under Section 20(F)(2), (11) for super structure under Section 20 (G)(4) and (iii) MRRP 2007 under Section (O) of the Act. The finding of this Court that the land holders were justified in refusing to accept the award as complete award was not passed composit order in all three heads amount apparent error of law.
5. In our considered view none of the grounds strenuously pressed into service to review the judgments of the main writ-petitions cannot hold ground.
6. First contention that the compensation was first offered under notice dated 24.04.2018 and not by notice dated 07.10.2013 is error apparent on face of record is devoid of merit. This Court has on the basis of pleadings of the parties has recorded in paragraph No.(6), (9),, (10) & (11) is considered in paragraph No.(9) of the judgment as contended by learned advocate for land owners and it is held that the compensation for the first time was offered to the land holders in the year 2013 which was not within reasonable time and the land holders were justified in refusing to accept the same as it was not composite/complete award for land, super structure and for NRRP, 2007. We, therefore, do not find any error on the Page 9 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021 C/SCA/9734/2018 IA ORDER DATED: 27/10/2021 face of the record in the judgment under review.
7. The second contention to seek the review of the judgment is that the land holders had filed reference under Section 2(20)(F)(6) of the Act in the year 2012 which fact came to the knowledge of the applicant only in the year 2017 is also unsustainable for the simple reason that it emerges from the judgment under review that the land holders have made an averments in the petition that they have made a reference for enhancement of compensation under Section 20(A)(6) of the Act to save the limitation. The contention of the applicant on the basis of the decision of this Court in the case of Prajapati (supra) that no limitation is contemplated for filing an application under Section 20(F)(6) of the Act is not considered by this Court in the judgment is of consequence because in fact nothing turns much this aspect and the fact remains that the authorities had not passed complete/composite award under the three heads contemplated is an undisputed fact which is recorded in the judgment under review and therefore the land owners were justified in not accepting the compensation in the year 2013 which was for the land alone. We are, therefore, of the considered view that the judgment does not call for any review of this count.
8. The last contention which is raised by the applicant is that the award for structure trees even after 18 months of notification under Section 20(F) and there is no limitation period for the same is also without merit. We have considered this contention in the judgment under review in paragraph Nos. 8 to 10, and therefore, we do not find any error which can be dubbed as error on face Page 10 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021 C/SCA/9734/2018 IA ORDER DATED: 27/10/2021 of the record to warrant review the judgment.
9. It is the settled proposition of law that a review petition has a very circumscribed scope and such an application cannot be allowed to be used as substitute for a fullfledged appeal as has been held by the Supreme Court in the catena of decisions some of which are relied upon by the learned advocate for the land holders in his written submissions.
10. We are of the considered view that the applicant has miserably fail to point out any apparent error on the face of the record or an error of law which would warrant review of the common judgment rendered in Special Civil Application No.9734/2018 & 9755/2018.
11. For the foregoing reasons, we are of the opinion that there is no substance in the present applications and the judgment of writ-petition Special Civil Application No.9734/2018 & 9755/2018 do not warrant any review. The present applications are, therefore, rejected.
(R.M.CHHAYA,J) (A.G.URAIZEE, J) Manoj Page 11 of 11 Downloaded on : Fri Oct 29 05:52:32 IST 2021