Gujarat High Court
Deceased Chhitabhai Devjibhai Patel ... vs State Of Gujarat Thro Secretary & 3 on 7 June, 2016
Author: Harsha Devani
Bench: Harsha Devani, G.B.Shah
C/SCA/3070/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.3070 of 2013
With
SPECIAL CIVIL APPLICATION NO.3075 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE HARSHA DEVANI
and
HONOURABLE MR. JUSTICE G.B.SHAH
=============================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment?
2 To be referred to the Reporter or not?
3 Whether their Lordships wish to see the fair copy of
the judgment?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder?
=============================================
DECEASED CHHITABHAI DEVJIBHAI PATEL THRO HIS HEIRS AND
LEGAL & 4....Petitioner(s)
Versus
STATE OF GUJARAT THRO SECRETARY & 3....Respondent(s)
=============================================
Appearance:
MR BS PATEL, ADVOCATE for the Petitioner(s) No.1 - 1.3.1 , 1.4 - 1.6 ,
1.6.2 - 1.6.5 , 2 - 2.4 , 3 - 4.9 , 5 - 5.4
MR DHAWAN JAYSWAL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No.1 - 2 in SCA/3070/2013
MR RUTVIJ OZA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No.1 - 2 in SCA/3075/2013
MR SN SHELAT, SR. ADVOCATE with MR ANSHIN DESAI, ADVOCATE
and MR NISHANT LALAKIYA, ADVOCATE for the Respondent(s) No.4
MR RD DAVE, ADVOCATE for the Respondent(s) No.3
=========================================
CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
and
HONOURABLE MR. JUSTICE G.B.SHAH
Date : 07/06/2016
Page 1 of 62
HC-NIC Page 1 of 62 Created On Wed Jun 08 01:18:09 IST 2016
C/SCA/3070/2013 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE HARSHA DEVANI)
1. Since the reliefs prayed for in both these petitions are identical and the facts and contentions are also similar, the same were taken up for hearing together and are disposed of by this common judgment. For the sake of convenience, reference is made to the facts as stated in Special Civil Application No.3075/2013.
2. By these petitions, the petitioners have challenged the order dated 27th August, 2012 passed by the respondent No.3 - Gujarat Industrial Development Corporation (Annexure 'A' to the petitions) turning down the request of the petitioners to release their lands from acquisition. The petitioners have also challenged the Notification dated 14th March, 2013 issued by the first respondent under section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the "1894 Act"). The petitioners also seek a direction to the respondents No.1 to 3 to recover the amount paid to the fourth respondent with interest forthwith and also seek a direction against the respondent authorities prohibiting them from making any payment in the event the acquisition is upheld by this court to anyone except the petitioners. The petitioners have prayed for the above reliefs in the backdrop of the following facts.
2.1 It is the case of the petitioners that they are agriculturists and are cultivating the lands situated in the sim of village Manad, taluka and district Bharuch since the time of their forefathers. The description of the land is set out in a Page 2 of 62 HC-NIC Page 2 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT table in paragraph 3.1 of the memorandum of petition. According to the petitioners, the entire village Manad survives upon agriculture and that the petitioners are also interested in agricultural activities as they do not know anything except cultivation. Earlier, the Sardar Sarovar Narmada Nigam Limited wanted the lands of the village for rehabilitation and considering the interest of the farmers at large, the farmers of the village had given their lands by consent, which was done with a view to see that the farmers of the State can flourish. It is further the case of the petitioners that their lands are fertile and that in case their lands are acquired, they would lose their agricultural lands and would have to go in search of other agricultural lands at distant places, which would amount to uprooting them from their own village.
2.2 The first respondent - State of Gujarat, in exercise of powers under section 4 of the 1894 Act, declared its intention to acquire the lands specified in the Schedule to the notification for a public purpose viz. for expansion of Housing of Dahej Industrial Estates by Gujarat Industrial Development Corporation. In response to the said notification, the petitioners, who did not want to give up their lands, submitted their objections thereto. The village panchayat also passed a resolution opposing the notification and submitted its objections thereto. It is the case of the petitioners that pursuant to the objections filed by them, the second respondent issued a notice dated 17th April, 2012 for personal hearing which came to be served upon them on 20th April, 2012 and the date of hearing was fixed on 26th April, 2012. According to the petitioners, the initial date of hearing was 26th May, 2012, however, the same came to be changed to 26th Page 3 of 62 HC-NIC Page 3 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT April, 2012 by overwriting on the date. Some of the petitioners submitted an application before the second respondent that because of paucity of time, detailed objections could not be submitted and requested for time. It is the case of the petitioners that they were waiting for the next date of hearing, however, instead, the impugned order dated 27th August, 2012 came to be served upon them whereby it was conveyed to them that their applications had been filed. It is the case of the petitioners that no effective hearing has been given to the petitioners nor have any proper reasons been assigned for turning down the objections and that only on the ground that public interest is always higher than the private interest, the impugned order has been passed. According to the petitioners, it is well-settled that as far as possible, the Government should not acquire agricultural lands for industrial purposes and that the grievance voiced by the petitioners has not been dealt with in the impugned order. It is further the case of the petitioners that they are tenants of the land under acquisition and have been declared purchasers by the competent authority under the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the "Tenancy Act") and that the proceedings have been concluded and certificates have also been issued in their favour by the competent authority. It is also averred in the petition that the petitioners have been declared to be tenants and are cultivating the lands as owners after issuance of the certificates at Annexure 'G' to the petition, but the power-of-attorney holder of the erstwhile owners had approached the petitioners and had made payment to all the petitioners and signatures of the petitioners had been obtained by giving them the impression that the petitioners will get the full amount of compensation, but he Page 4 of 62 HC-NIC Page 4 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT being the owner of the lands is also trying to get the same and some writing had been taken from the petitioners and the petitioners had been taken to the Notary. The petitioners do not know the nature of the writing that had been taken but state that they had never executed any sale deed in favour of any party nor had they sought for permission of the authority under section 43 of the Tenancy Act. It is further the case of the petitioners that when some of the villagers had gone to the office of the second respondent, they were informed that the respondent authority would make payment in favour of the erstwhile owner and not in favour of the petitioners. According to the petitioners, a tenancy cannot be surrendered and in the event of surrendering the tenancy, the land would be vested in the State Government which can be re-allotted under section 32PP of the Tenancy Act and the petitioners being the tenants have first claim over the lands, but in the present case, neither have the petitioners left their ownership nor have they executed any sale deed in favour of any party. According to the petitioners, even if the acquisition is upheld, even then it is only the petitioners who are entitled to compensation. It is the case of the petitioners that in the adjoining taluka of Bharuch district namely, Vagra taluka, when IPCL acquired lands for housing purpose, the amount had been paid to third parties even though cheques were drawn in the names of owners of the land. A scam had surfaced and the Central Bureau of Investigation had investigated the case and filed a complaint which is pending before the competent court. Since the petitioners are illiterate/semi-illiterate and apprehend such a scam in the case of their lands, they have approached this court by way of the present petitions.
Page 5 of 62HC-NIC Page 5 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT 2.3 It is further averred that the petitioners are farmers and are not in a position to take up the issue individually against the Government as the fourth respondent is a very influential person and hence, the persons who were cultivating the lands under acquisition had formed an unregistered association and on behalf of the petitioners, Shri Kanaksinh Vithalbhai Parmar had submitted objections to the second respondent on 26th April, 2012. It is the case of the petitioners that it is the duty of the third respondent to prepare a report and submit the same to the State Government. The second respondent had made a show as if he had heard the petitioners and the agriculturists including Kanaksinh Vithalbhai Parmar, however, no report under section 5A(2) of the 1894 Act had been prepared by him and forwarded to the State Government. According to the petitioners, subsequently, they had learnt that prior to issuance of the notification under section 6 of the 1894 Act, 90% of the amount had been paid to the fourth respondent by the second and third respondents by entering into an agreement. It is the case of the petitioners that it is the duty of the respondents to decide the rights of interested parties under section 9 of the 1894 Act but prior to the notification under section 6 of the Act, approximately Rs.120 crores have been paid to the fourth respondent and the provisions of the Act have been ignored. According to the petitioners, settlement cannot be arrived at prior to the notification under section 6 of the Act and hence, the fourth respondent has been enriched and the amount payable to the petitioners has gone to the pocket of the fourth respondent which is required to be taken back so as to complete the necessary formalities.
Page 6 of 62HC-NIC Page 6 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT 2.4 In response to the petitions, the fourth respondent has filed an affidavit-in-reply dated 14th March, 2014 contending that the petitioners have no locus to challenge the notification under section 6 of the 1894 Act because they have no interest whatsoever in the lands. It is stated that the petitioners had initiated proceedings before the Agricultural Land Tribunal under section 70(b) of the Tenancy Act contending that they were tenants of the land situated at Kasrol, Eksal and Manad bearing Block No.139, Block No.2 and Block No.249 respectively. Initially, the Mamlatdar had on 19 th January, 1989 held the petitioners to be tenants but subsequently, when the appellate authority had remanded the matter by its order dated 4th February, 1990, on further inquiry, the Mamlatdar held that the petitioners could not be declared to be tenants under section 32(g) of the Act. After due inquiry, the Mamlatdar, by an order dated 24th November, 1993, rejected the contention of the petitioners that they were tenants of the lands and held that the petitioners were not tenants and were not entitled to purchase the lands. Against the order of the Mamlatdar, the petitioners preferred appeal before the Deputy Collector, Bharuch, who, by an order dated 21st January, 1994, dismissed the appeal. Being aggrieved by the order passed by the Deputy Collector, the petitioners preferred revision applications before the Gujarat Revenue Tribunal being TENA Nos.106, 107 and 108 of 1994. The Tribunal, after considering the evidence on record, held that the petitioners were not right in law in claiming tenancy rights and were not entitled to purchase the lands under section 32(g) of the Tenancy Act as the lands in question were exempted from the operation of the said Act. Against the decision of the Gujarat Revenue Tribunal, the petitioners Page 7 of 62 HC-NIC Page 7 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT approached this court by way of Special Civil Application No.5378/1995 and connected petitions wherein the petitioners settled the dispute with the fourth respondent and declared before this court that they were never the tenants of the land in question. Thereafter, the petitioners entered into a consent agreement with the fourth respondent and the consent terms also came to be recorded. The petitioners thereafter preferred review application before this court which came to be rejected by an order dated 28th September, 2012. Against the said order, the petitioners preferred Letters Patent Appeal No.1311/2012, which came to be dismissed for non-compliance of the directions of this court. The fourth respondent has annexed along with the affidavit, various orders which find reference in the affidavit.
2.5 In response to the above affidavit-in-reply, the petitioners have filed an affidavit-in-rejoinder dated 19th August, 2014 denying the averments made in the affidavit-in- reply. It is denied that the Mamlatdar had passed any orders against the petitioners holding that they are not entitled to purchase the lands. The petitioners have also denied having approached the Deputy Collector and the Gujarat Revenue Tribunal as well as this court against the order passed by the Mamlatdar. Such affidavit has been made by Shri Laxmanbhai Valand, son of Bhikhabhai Valand, who has stated that he was never a party to the proceedings and that none of the petitioners have put their signatures on the consent terms in Special Civil Application No.5378/1995. It is alleged that the fourth respondent is trying to twist the matter on the ground that Survey No.2 of village Eksal is a very large piece of land having different persons holding possession as tenants.
Page 8 of 62HC-NIC Page 8 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT 2.6 The fourth respondent has filed a reply in response to the affidavit-in-rejoinder, reiterating that the petitioners do not have the locus to file the petitions as their legal representatives and/or relatives have already compromised in the earlier issues with the fourth respondent and the consent terms are already on the record. It is averred that as far as the present petition (SCA/3075/2013) is concerned, one representative of each family has compromised with the deponent. It is stated that the petitioner No.1.1 viz. Laxmanbhai Valand, son of Bhikhabhai Valand has settled the issue with the fourth respondent. Affidavit to that effect is annexed therewith. The petitioner No.2, i.e., Somabhai, son of Chitabhai Rathod was also a party in SCA/5378/1995 and has signed the consent terms. Petitioner No.3.1 namely, Prabhubhai, son of Govindbhai Devabhai Ahir has also settled the issue with the fourth respondent. Petitioner No.4.4, viz., Shravanbhai, son of Mangabhai Sindhiyabhai Rathod has also settled the issue with the fourth respondent. Petitioner No.5, namely, Laxmanbhai, son of Dhulabhai Gohil has also executed consent terms dated 22nd December, 2006. Petitioner No.6.2, viz., Laxmanbhai, son of Kesarbhai Gohil has executed consent terms. Petitioner No.7.1, viz., Manubhai, son of Chimanbhai Bajibhai Rathod has executed a similar agreement dated 24th January, 2011. Copies of the consent terms have been annexed along with the reply. It is, accordingly, stated that in view of the above settlement, which the petitioners have suppressed before this court, the petitioners are not entitled to any of the reliefs as prayed for on the ground of suppression of material facts. It is contended that the petitioners have nowhere shown as to how they are interested in the lands in Page 9 of 62 HC-NIC Page 9 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT question and that since the petitioners themselves have settled the issue they are now estopped from filing such petitions. It is further stated that the land, that is, Survey No.249 of village Manad has been acquired for the purpose of Dahej Industrial Residential, that is, housing for the industrial area at village Manad. Section 4 notification was issued on 15th February, 2012 whereafter section 6 notification came to be issued on 14th March, 2012, after which possession came to be taken over on 16th August, 2012 and award under section 11(2) of the 1894 Act came to be made on 10th May, 2013.
Therefore, Survey No.249 which belongs to Jahangir M. Contractor has already been acquired.
2.7 The second respondent - In-charge Deputy Collector and Special Land Acquisition Officer, GIDC has filed an affidavit-in-reply dated 15th November, 2014, stating that notification under section 4 of the 1894 Act was issued on 15 th February, 2012. After calling for objections and deciding the same, notification under section 6 came to be issued on 14th March, 2013, whereafter consent award came to be made under section 11 of the 1894 Act on 10th May, 2013. As per the consent award, payment of the awarded compensation was made to the land owner on 21st August, 2012, that is, 90% of the total amount. Such amount of compensation was paid to the land owners whose names were reflected in the revenue record. It is further stated that possession of the subject lands was taken on 16th August, 2012 and receipt of possession was given in the presence of two witnesses as well as in the presence of the Talati-cum-Mantri of village Manad.
2.8 The petitioners have filed an affidavit-in-rejoinder to Page 10 of 62 HC-NIC Page 10 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT the above affidavits contending that any compromise without proceedings before the authorities under the Tenancy Act is not binding and has no effect in law. It is contended that the petitioners have clearly stated in the petitions that the signatures have been obtained before the Notary. In that event, once the signature (sic.) under section 32G of the Tenancy Act is received, any agreement which is the result of misrepresentation and fraud has got no binding effect and the right in favour of the petitioners cannot be taken away by such notarised agreement which was signed by the concerned petitioners, but without knowledge regarding the compensation thereof and that none of the petitioners have got a copy of the same. It is further stated that it is incorrect on the part of the respondent No.4 to state that the land is already acquired and possession is taken on 16th August, 2012 and that in hard reality, the possession is not taken and the petitioners are cultivating the land. It is further stated that Regular Civil Suit No.337of 2013 is filed in the civil court and panchnama has been drawn on 5th January, 2014. It is stated that while notification under section 6 has been issued on 14th March, 2013, 90% of the amount had been paid to the fourth respondent on 21st August, 2012, which clearly reveals that the Government money is wasted and the petitioners are deprived of their valuable rights. It is contended that no compromise could take place or payment could have been made before the issuance of notification under section 6 of the 1894 Act and that the consent award and payment of compensation is a fraud committed by the officers of the Government in collusion with the fourth respondent who has been enriched in violation of the provisions of the Act and against the interest of the petitioners. It is further contended that the averments made Page 11 of 62 HC-NIC Page 11 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT regarding Shri Jahangir Contractor being the owner of the land as his name is reflected in the revenue records are without following procedure under section 9 of the 1894 Act and without calling upon the petitioners, the second respondent has no authority to decide as to who has got rights in the said property. It is contended that every provision under the Act has been flouted by the second respondent with a view to help the fourth respondent.
2.9 The second respondent - Deputy Collector and Special Land Acquisition Officer has filed an affidavit dated 24th March, 2015, inter alia, stating that after considering the objections dated 9th April, 2012 as well as 26th April, 2012 submitted by the petitioners, a report under section 5A was prepared by the Special Land Acquisition Officer and by a communication dated 26th April, 2012, it was forwarded to the third respondent - acquiring body. After considering the report prepared by the Special Land Acquisition Officer, the third respondent has intimated the second respondent by a communication dated 23rd July, 2012 giving its opinion that the acquisition should be continued with. That subsequent thereto, the Special Land Acquisition Officer had addressed the impugned letter intimating the opinion of the third respondent that the land is required for public purpose and cannot be released from acquisition. It was submitted that subsequent thereto, a report under section 5A was prepared by the Special Land Acquisition Officer in consultation with the third respondent which was forwarded to the Revenue Department, State of Gujarat on 5th March, 2013. It was accordingly submitted that the contention that no report under section 5A(2) has been submitted to the State Government is Page 12 of 62 HC-NIC Page 12 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT incorrect. The second respondent has annexed along with the affidavit, a copy of the report submitted by him to the State Government under section 5A of the 1894 Act.
2.10 The petitioners have filed an affidavit-in-rejoinder dated 4th May, 2015 alleging that the respondents - State authorities have attempted to fill up the lacuna in the proceedings under the Land Acquisition Act. An additional affidavit has been filed by Laxmanbhai Valand - petitioner No.1.1 annexing the certificates issued under Form No.9 rule 8 of the Tenancy Rules in favour of the petitioner No.1, petitioner No.2, petitioner No.3.2, petitioner No.4, petitioner No.5, petitioner No.6 and petitioner No.7. The fourth respondent has filed an affidavit-in-reply to the additional affidavit stating that all the certificates produced, except that of Soma Chita which is dated 6th August, 1990, are duplicate certificates. The said respondent has produced the ledger accounts of the seven certificate holders to clarify that the certificates were issued prior to 1993. It is stated that in the year 1989, the Mamlatdar held some of the occupants to be tenants, however, the said order was carried in appeal before the Deputy Collector who quashed the order and remanded the matter to the Mamlatdar. The Mamlatdar considered the entire proceedings afresh and ultimately on 24th November, 1993 held that the said occupants were not tenants. It is stated that the proceedings went up to the level of the Tribunal where the order of the Deputy Collector confirming the order of the Mamlatdar was upheld. An additional affidavit dated 16th September, 2015 filed by Laxmanbhai Valand - petitioner No.1.1, stating that some of the petitioners were not parties in the proceedings before the Mamlatdar and disputing the contention of the Page 13 of 62 HC-NIC Page 13 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT fourth respondent that the orders passed in favour of the petitioners had been subsequently set aside.
2.11 The fourth respondent has filed an affidavit-in-reply dated 30th September, 2015 to the additional affidavit filed by Laxmanbhai Valand stating that the petitioners are not owners of the land in question. It is stated that the petitioner No.1 - Bhikha Harji Valand along with eight others had applied for fixing the purchase price, however, the Mamlatdar and Krushi Panch by order dated 19th October, 1968 held that the price cannot be fixed under section 32G as per section 88 of the Tenancy Act. Thereafter, all the applicants applied for a second time, which also came to be rejected vide order dated 20th August, 1974. The petitioner No.1 along with other applicants, for a third time, filed another application which was rejected on 25th March, 1986 on the same grounds. Concealing these orders, the petitioner No.1 along with others applied for fixation of price which came to be fixed on 30th June, 1990 which application again came to be rejected and has attained finality. It is further stated that the petitioner No.2 - Soma Chita was declared tenant by order dated 19th July, 1989 and in the fresh proceedings, the application for declaration as tenant came to be rejected by the Mamlatdar by an order dated 24 th November, 1993. It is stated that the petitioners No.3 and 5 - Shri Govindbhai Devabhai and Manga Sindhiya along with others applied for fixing the purchase price which came to be rejected by the Mamlatdar and ALT vide order dated 19th October, 1968. The petitioners No.3 and 5 along with others applied for a second time which came to be rejected on 20 th August, 1974 on the same ground. The petitioners No.3 and 5 and others applied once again for a third time which came to Page 14 of 62 HC-NIC Page 14 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT be rejected on 25th March, 1986. Suppressing the three orders, the petitioners No.3 and 5 and others applied for fixing of price which came to be fixed on 30th June, 1990. However, he along with others again applied for fixing of purchase price in Tenancy Case No.10/90 and the said application came to be rejected and has attained finality. As regards petitioner No.4, it is submitted that no certificate has been produced by him. In case of petitioner No.6 - Kesarbhai Abha Gohil, similar averments as in the case of petitioners No.3 and 5 have been made. It is, accordingly, submitted that the petitioners are, therefore, not owners of the lands in question and are not entitled to the reliefs prayed for.
2.12 The petitioner No.1.1 - Laxmanbhai Valand has made an additional affidavit dated 18th December, 2015 stating that he had received an order from the authority under section 32G on 30th June, 1990. Similarly, petitioner No.2 had also received an order dated 30th June, 1990. Identical orders had been passed in favour of the petitioners No.3 and 6 under section 32G, however, final certificate under section 32M of the Tenancy Act has been placed on record. It is stated that order under section 32G has been passed in favour of the petitioner No.4 on 30th June, 1990 and in favour of the petitioners No.5 and 7 on 5th January, 1990. It is stated that the orders passed under section 32G of the Tenancy Act have never been challenged and have attained finality and that the petitioners are still in possession of the land and cultivating the same and that the names of the petitioners are reflected in the record of rights in the column under the head "agriculturists".
3. Mr. B.S. Patel, learned advocate for the petitioners Page 15 of 62 HC-NIC Page 15 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT emphatically argued that in the present case, the statutory provisions have been given a complete go-by. It was pointed out that pursuant to the notification issued under section 4 of the 1894 Act, objections had been invited and hearing was fixed, however, the date of hearing came to be changed. The village panchayat had submitted objections, however, it had not been given any opportunity of being heard. That the petitioners had clearly contended before the second respondent that the petitioners are agriculturists and the lands of the petitioners are fertile and may not be acquired for housing purpose as the same would ruin the life of the petitioners as they only know agricultural activities. However, without dealing with the objections of the petitioners, the impugned order at Annexure 'A' came to be passed which is a non-speaking order and is arbitrary and violative of Article 14 of the Constitution of India. It was submitted that the petitioners know only agricultural operations and if they lose their valuable lands, they would be deprived of their right to carry on their profession and hence, the impugned action of the respondent authorities is violative of Article 19(1)(g) of the Constitution of India. It was submitted that under the provisions of section 5A of the 1894 Act, the Land Acquisition Officer is under a legal obligation to give effective hearing and the record and proceedings is required to be sent to the appropriate Government for the purpose of taking a decision, whereas it appears that in the present case the decision had been taken by the third respondent who has no jurisdiction under the said Act. The attention of the court was invited to the impugned order dated 27th August, 2012, to submit that the objections submitted by the petitioners have not been supplied to the State Government and that the Special Land Page 16 of 62 HC-NIC Page 16 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT Acquisition Officer has himself taken a decision to reject the objections filed by the petitioners. The attention of the court was invited to the report under section 5A of the 1894 Act (Annexure R2 page 217 of SCA/3070/2013) and more particularly, to Item No.6 thereof, wherein the objections raised by the President Kanaksinh Vithalbhai Parmar have been reproduced and the opinion in respect thereof is to the effect that "the lands of Survey No.249 have been given by the owner by consent and that the applicant has not raised any objection against the acquisition. According to their submission, they are tenants and want to establish their rights in connection therewith. The applicant has not been established to be the owner and hence, in the larger public interest, the acquisition proceedings should be further proceeded with." It was submitted that thus, there is no proper application of mind to the objections raised by the petitioners. It was, accordingly, urged that there is non-compliance of the provisions of section 5A of the Act. Reference was made to the objections at Annexure 'K' (page 114/C of SCA/3075/2013) and to the order dated 18th/20th October, 2014 made in the appeal under the Right to Information Act and the information received by the petitioners. Reference was made to Annexure R1 (page 236) which is a letter dated 26th April, 2012 of the Deputy Collector and Special Land Acquisition Officer addressed to the General Manager, GIDC enclosing therewith the report under section 5A of the 1894 Act in Form D (Gh) and calling upon him to forthwith send his clear opinion on such objections. Referring to the report under section 5A of the 1894 Act (page 243), it was submitted that there is no sufficient compliance of the provisions of section 5A of the 1894 Act inasmuch as at no point of time were the petitioners Page 17 of 62 HC-NIC Page 17 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT called for the purpose of hearing of their objections. It was contended that the procedure provided under section 5A of the Act of 1894 is not an empty formality and has to be followed in letter and spirit. When the report under section 5A of the 1894 Act was sent to the Government, the Government was under a duty to consider all objections and decide the same. It was submitted that the satisfaction recorded by the Government for approving the notification under section 6 of the 1894 Act has not been produced on the record. Therefore, on account of non-compliance of the provisions of section 5A of the 1894 Act, the notification under section 6 thereof stands vitiated. Reliance was placed upon the decision of the Supreme Court in the case of Union of India v. Shiv Raj, AIR 2014 SC 2242, for the proposition that the right to file objection under section 5A is a substantial right when a person's property is being threatened with acquisition. The rules of natural justice have been ingrained in the scheme of section 5A of the 1894 Act with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land. The court held that section 5A of the 1894 Act confers a valuable right in favour of a person whose lands are sought to be acquired. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind having due regard to the relevant factors and rejection of irrelevant factors. The State in its decision making process must not commit any misdirection in law. The court further held that it is also not in dispute that section 5A of the 1894 Act confers a Page 18 of 62 HC-NIC Page 18 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT valuable right and having regard to the provisions contained in Article 300A of the Constitution of India, has been held to be akin to a fundamental right. Thus, the limited right given to an owner/person interested under section 5A of the 1894 Act to object to the acquisition proceedings is not an empty formality and is a substantive right which can be taken away only for good and valid reasons and within the limitation prescribed under section 17(4) of the 1894 Act.
3.1 Referring to the communication dated 23rd July, 2012 (page 238) addressed by the General Manager, GIDC to the Special Land Acquisition Officer that a report with clear opinion on the objections raised by the petitioners and others had been forwarded to him for taking further action under section 6 of the 1894 Act as well as to the communication dated 27th August, 2012 addressed by the Deputy Collector and Special Land Acquisition Officer to Kanaksinh Vithalbhai Parmar, it was pointed out that the second respondent has filed the objections even before submitting the proposal to the State Government and that ultimately, the proposal was forwarded to the Government on 5th March, 2013 as per Annexure R4 (page 242). It was accordingly urged that the notification under section 6 of the 1894 Act stands vitiated on account of (i) non-consideration of the objections filed by the petitioners; and (ii) absence of any order of the State Government recording satisfaction for the purpose of approving the notification under section 6 of the Act. Referring to various objections raised before the concerned authorities, it was submitted that the village people had also raised objections, all of which were required to be considered before approving the proposal for issuance of notification under Page 19 of 62 HC-NIC Page 19 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT section 6 of the Act. It was reiterated that there is no Government opinion on record indicating why the objections raised by the petitioners have been turned down. It was submitted that the Land Acquisition Officer submitted a report after getting remarks from the acquiring body, which reveals that the same have been given after the proposal under section 6 of the 1894 Act came to be forwarded. It was submitted that the Land Acquisition Officer has simply agreed with the acquiring body and has not applied his mind to the objections raised by the petitioners and that in his zeal to oblige the acquiring body, without forwarding the report to the Government, the Land Acquisition Officer has rejected the objections in flagrant violation of the provisions of law. It was submitted that the notification under section 6 of the 1894 Act was issued as a matter of course because the GIDC created a situation in August prior to issuance of such notification whereby 90% of the compensation was paid to the fourth respondent. It was contended that the possession that has allegedly been taken over by the acquiring body, has not actually been taken.
3.2 The attention of the court was invited to the fact that a consent award has been made in favour of the fourth respondent and that 90% of the amount has been paid prior to the execution of the consent award. It was submitted that before passing the consent award, no procedure under the provisions of section 11 of the 1894 Act has been followed and that the provisions of section 9 thereof have been given a complete go-by. The attention of the court was invited to the provisions of section 9 of the 1894 Act to submit that it is at that stage that interested parties would lodge their claims Page 20 of 62 HC-NIC Page 20 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT before the Collector. It was submitted that in the facts of the present case, the requirement of issuing notice to interested persons under section 9 of the Act has been done away with, causing immense prejudice to the petitioners. It was submitted that the petitioners are the owners of the lands under acquisition, inasmuch as, certificates under section 32M of the Tenancy Act have been issued in their favour, which certificates have not been cancelled. Therefore, the petitioners have conclusive proof of the purchase of the subject lands by them and that such certificate cannot be ignored on the ground that the names of the petitioners are not reflected in the revenue record. It was submitted that even if in the proceedings under section 70(b) of the Tenancy Act, some of the petitioners have not been held to be tenants, there are two contradictory orders and hence, the rights of the tenants are required to be decided for which there has to be some adjudication. It was submitted that such power is vested in the Reference Court, which has to decide the same under section 30 of the 1894 Act.
3.3 Next, it was submitted that certain amounts were paid to the petitioners for waiver of their rights in the lands under acquisition and that the petitioners accept that they had received the money. It was submitted that, however, the petitioners being the owners of the lands, the respondent authorities are not authorised to make payment to any other person except the petitioners. It was submitted that it is settled legal position that a tenancy cannot be surrendered and that in the event of surrender of tenancy; such lands would vest in the State Government and can be re-allotted to the tenants under section 32PP of the Tenancy Act as they Page 21 of 62 HC-NIC Page 21 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT have the first claim. It was submitted that assuming for the sake of argument that the petitioners had waived their tenancy rights; such waiver is of no consequence as the Tenancy Act does not recognise such waiver. It was urged that once a tenancy is established under section 32G of the Tenancy Act, the same can be terminated under section 74 and section 76 of the Act by the revenue authorities or he can surrender the tenancy under section 15 of the Tenancy Act. In the facts of the present case, the tenancy rights of the petitioners under section 32G of the Tenancy Act have not been terminated by any procedure known to law. Reliance was placed upon the decision of the Supreme Court in the case of Ramchandra Keshav Adke v. Govind Jyoti Chavare and Others, AIR 1975 SC 915 1975 (1) SCC 559, wherein the court in the context of section 5(3)(b) of the Bombay Tenancy Act and rule 2A of the Tenancy Rules (as applicable to the State of Maharashtra) held that on a combined reading of those provisions, it is seen that a surrender of tenancy in order to be valid and effective must fulfill the following requirements: (1) it must be in writing; (2) it must be verified before the Mamlatdar; (3) while making such verification, the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequence of the surrender, and (b) that it is voluntary; (4) the Mamlatdar must endorse his finding as to such satisfaction upon the document of surrender. The court held that the language of section 5(3)
(b) and rule 2A is absolute, explicit and peremptory. The words "provided that" read with the words "shall be" repeatedly used in section 5(3)(b) make the termination of tenancy by surrender entirely subject to the imperative conditions laid down in the proviso. The proviso throws a benevolent ring of Page 22 of 62 HC-NIC Page 22 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT protection around tenants. It is designed to protect a tenant on two fronts against two types of dangers - (1) against possible coercion, undue influence and trickery proceeding from the landlord; and the other against the tenant's own ignorance, improvidence and attitude of helpless self-resignation stemming from his weaker position in the tenant-landlord relationship. It was, accordingly, urged that the names of the petitioners are reflected as protected tenants in the village form No.7/12 in relation to the lands under acquisition. Therefore, even if the documents of waiver of rights over the said lands were produced before him, the Land Acquisition Officer as a prudent officer should have enquired about it. However, the Land Acquisition Officer has not made any verification and the petitioners have lost their lands and their certificates under the Tenancy Act have become redundant.
3.4 It was accordingly urged that a very casual approach is adopted while deciding the objections under section 5A of the 1894 Act. It was argued that receipt of the amount in terms of the consent agreement by the petitioners does not exonerate the Government officers of the mandatory duty cast upon them under section 5A of the 1894 Act. It was submitted that neither has any inquiry nor has any spot inspection been made and that there is something fishy about the entire episode and someone has been unduly favoured. According to the learned counsel, the Land Acquisition Officer cannot ignore the provisions of the Tenancy Act and the certificate under the Tenancy Act also cannot be ignored. It was, accordingly, urged that the entire proceedings undertaken prior to issuance of the notification under section 6 of the Act as well as prior to issuance of the consent award Page 23 of 62 HC-NIC Page 23 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT have been vitiated for non-compliance of the statutory provisions and hence, the petitions deserve to be allowed by granting the reliefs as prayed for.
4. Opposing the petitions, Mr. S.N. Shelat, Senior Advocate, learned counsel with Mr. Anshin Desai and Mr. Nishant Lalakiya, learned advocates for the fourth respondent submitted that the petitioners herein have no locus to challenge the acquisition proceedings as they are neither owners nor tenants of the lands under acquisition. It was submitted that the statement made by the petitioners that they are cultivating the acquired lands is incorrect and suffers from the vice of suppression of material facts. Referring to the record of the case, it was pointed out that in terms of the consent affidavits submitted before this court, the possession of the lands under acquisition are not with the petitioners. It was pointed out that in the tenancy proceedings, the petitioners have failed up to the level of the High Court and there is nothing on record to show ownership rights of the petitioners.
4.1 On the merits of the case, Mr. Shelat submitted that what is the subject matter of challenge in these petitions is the notification under section 6 of the 1894 Act. Such notification can be avoided provided the provisions of section 5A have not been complied with. It was submitted that the petitioners filed objections under section 5A of the 1894 Act and were heard by the respondent authorities. According to the learned counsel, in the present case since the acquisition is for the housing colony of GIDC, it is GIDC's opinion which is more relevant. Reference was made to the objections raised by Shri Kanaksinh Page 24 of 62 HC-NIC Page 24 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT Vithalbhai Parmar to point out the nature of the objections raised by them, namely that, they have been cultivating the lands from the time of their forefathers prior to the Tenancy Act coming into force and that the subject lands are under their cultivation and possession. That in this case, in connection with their rights, proceedings are pending before the revenue as well as civil courts and hence, acquisition proceedings should not be undertaken without affording an opportunity of hearing to them. The attention of the court was invited to the opinion of the Land Acquisition Officer in respect of the objections raised by Shri Kanaksinh Vithalbhai Parmar on behalf of the petitioners, to submit that three reasons have been assigned for not accepting the objections submitted by the petitioners which clearly reflects application of mind on the part of the Special Land Acquisition Officer. It was submitted that therefore, there is total conscious application of mind by GIDC as well as the Land Acquisition Officer as envisaged under section 5A of the Act, which satisfies the requirements of section 5A of the Act as laid down by the Supreme Court in the case of Surinder Singh Brar v. Union of India, (2013) 1 SCC 403, wherein the court has held that what needs to be emphasised is that hearing required to be given under section 5A(2) to a person who is sought to be deprived of his land and who has filed objection under section 5A(1) must be effective and not an empty formality. The Collector who is enjoined with the task of hearing the objector has the freedom of making further enquiry as he may think necessary. In either eventuality, he has to make a report in respect of the land notified under section 4(1) or make different reports in respect of different parcels of such land to the appropriate Government containing his recommendations on the objections and Page 25 of 62 HC-NIC Page 25 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT submitting the same to the appropriate Government along with the record of proceedings held by him for the latter's decision. The appropriate Government is obliged to consider the report, if any, made under section 5A(2) and then record its satisfaction that the particular land is needed for public purpose. This exercise culminates into making a declaration that the land is needed for a public purpose and the declaration is to be signed by a Secretary to the Government or some other officer duly authorised to certify its orders. The formation of opinion on the issue of need of land for a public purpose and suitability thereof is sine qua non for issue of a declaration under section 6(1). Any violation of the substantive right of the land owners and/or other interested persons to file objection or denial of opportunity of personal hearing to the objectors vitiates the recommendations made by the Collector and the decision taken by the appropriate Government on such recommendations. The recommendations made by the Collector without duly considering the objections filed under section 5A(1) and submissions made at the hearing given under section 5A(2) or failure of the appropriate Government to take objective decision on such objections in the light of the recommendations made by the Collector will denude the decision of the appropriate Government of statutory finality. The satisfaction recorded by the appropriate Government that the particular land is needed for a public purpose and the declaration made under section 6(1) will be devoid of legal sanctity if statutorily engrafted procedural safeguards are not adhered to by the authorities concerned or there is violation of the principles of natural justice. It was submitted that in the facts of the present case, the requirements of section 5A of the Act have been duly complied with and hence, the proceedings Page 26 of 62 HC-NIC Page 26 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT under section 6 of the 1894 Act cannot be challenged before this court.
4.2 Reliance was also placed upon the decision of the Supreme Court in the case of State of Maharashtra v. Umashankar Rajabhau, (1996) 1 SCC 299 1995 (8) JT 508, wherein the court had held thus:
"2. It is seen that Section 4(1) does not require the ser- vice of the personal notice nor the one under Section 6 de- claration. What is needed to be served in the locality and the Gazette which have been complied with. As regards the notices under Section 9, it now transpires from the revenue records that the original owner namely, Usmanshahi Mill was served. Since mutation had not been effected in the name of Respondents 1-3 though purchased prior to the publication of notification under Section 4(1), they could not be issued notices as required under Section 9. Notice to the fourth respondent is obviously impossible, since the award has already been made on 15-9-1971. His purchase there- after is obviously illegal as it does not bind the State after the notification under Section 4(1) was published. Under these circumstances, the High Court was wholly unjustified in quashing acquisition in respect of three plots of land of Respondents 1-3."
4.3 Reliance was also placed upon the decision of the Supreme Court in the case of State of Karnataka v. Narasimhamurthy, (1995) 5 SCC 524 1995 (6) JT 375, reference to which shall be made at a later stage.
4.4 As regards the contention that the petitioners are tenants of the subject lands and certificates under section 32M have been issued in their favour, it was pointed out that the petitioners had initially approached the Mamlatdar for a declaration that they were tenants and by an order dated 19th Page 27 of 62 HC-NIC Page 27 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT July, 1989, the Mamlatdar had held them to be tenants. Against the said order, the original land owner approached the Deputy Collector, Bharuch under section 74 of the Tenancy Act and by an order dated 4th December, 1990, the appeal came to be partly allowed by setting aside the order dated 19th July, 1989 and remanding the matter to the Mamlatdar for ascertaining as to whether the lands were leased lands. Pursuant thereto, the Mamlatdar and ALT examined the matter in the light of section 88 of the Tenancy Act and found that the provisions of the Tenancy Act are not applicable to the subject lands. The Mamlatdar also recorded a finding that the petitioners were not tenants in respect of the lands under acquisition. It was pointed out that against the order dated 20th January, 1994 passed by the Deputy Collector, Bharuch, the petitioners approached the Gujarat Revenue Tribunal, which by an order dated 24th March, 1995, upheld the order passed by the Deputy Collector and rejected the revision applications. It was pointed out that the Tribunal had held that even if the petitioners were cultivating the land, they did not have tenancy rights, to submit that, therefore, today the petitioners cannot contend that they are owners by virtue of certificates under section 32M of the Act and that such certificates have not been challenged. It was submitted that against the order passed by the Tribunal, the petitioners approached this court by way of writ petitions being Special Civil Applications No.5377/1995, 5378/1995 and 5381/1995. In those proceedings, the parties agreed for resolution of the dispute and disposal of the petitions in terms of the agreed conditions and accordingly, the petitions came to be disposed of in terms of the consent terms and undertakings filed thereunder. The attention of the court was invited to the consent terms arrived Page 28 of 62 HC-NIC Page 28 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT at between the parties before this court in the above referred writ petitions to the effect that the petitioners have agreed that they were never in possession of the lands as tenants and agriculturists at any time as claimed by them in the said petitions. That the petitioners had declared that they had received payments as indicated in the statement and balance amount towards compensation is paid by post-dated cheques. That the petitioners agree and declare that the petitioners and their family members have handed over the possession of the lands in question and that the petitioners and their family members do not have any right, title or interest in the lands in question. It was pointed out that in pursuance of the consent terms, the petitioners have filed undertakings before the court to the effect that the petitioners and their family members have handed over the possession of the lands in question and if any encumbrance is found, the same shall be removed on or before the date specified therein. It was pointed out that subsequent thereto, the petitioners moved a review application before this court being Miscellaneous Civil Application No.1782/2012 pleading that the petitioners had been duped into signing the consent terms and that the conditions contained in the consent terms were contradictory and in fact, the right vested in the applicants had been taken away. This court, after considering the submissions of the learned counsel, has found that not only no evidence of any fraud or malpractice has been brought on record and established, but it is specifically stated on oath in the affidavit- in-reply that each of the applicants had been paid the amount due and evidence in that regard is annexed with the affidavit. The court observed that it clearly appears that the applicants had made an attempt at unduly dragging the respondents to Page 29 of 62 HC-NIC Page 29 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT the court with an oblique motive and that amounts to abuse of the process of court and, accordingly, dismissed the application. Against the decision of the learned Single Judge, the petitioners preferred Letters Patent Appeal No.1323/2012 before this court. By an order dated 17th October, 2012, this court directed the petitioners to deposit the total amount received pursuant to the agreement between the parties and observed that in default of depositing such amount within the period specified, the notice shall stand dismissed. It was pointed out that subsequent thereto, the petitioners had moved an application being Miscellaneous Civil Application No.612/2013, for modification of the earlier order, which had not been entertained by the court and came to be rejected. While rejecting the application, the court had expressed the view that a person, taking financial benefit under an agreement, cannot pray for recall of such agreement on the ground of fraud without being prepared to refund the benefit obtained out of the said agreement. It was pointed out that the letters patent appeal subsequently came to be dismissed as not maintainable by an order dated 6th February, 2015. It was submitted that the order dated 20th January, 1994 passed by the Deputy Collector, accordingly, merges with the order passed in the letters patent appeal and irrespective of the payment of consideration, on these submissions, the petitions must fail. It was submitted that the payments had been made by the fourth respondent with a view to buy peace and that section 15 of the Tenancy Act is not applicable in the facts of the present case where the petitioners have not established their tenancy rights. It was contended that the certificates issued under section 32M of the Tenancy Act cannot be relied upon inasmuch as they are based upon an order which is Page 30 of 62 HC-NIC Page 30 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT quashed and set aside after examining the merits of the case. It was, accordingly, urged that no case has been made out so as to warrant interference and that the petitions being devoid of merits, deserve to be dismissed with exemplary costs.
5. Mr. Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the respondents No.1 and 2, submitted that pursuant to the notification under section 4 of the 1894 Act, objections were received and the opinion of the GIDC was obtained. The Special Land Acquisition Officer thereafter gave his opinion on the objections and forwarded the same to the State Government. The concerned officers of the State Government had perused the report under section 5A and had applied their mind to the objections raised under section 5A. The attention of the court was invited to the report submitted under section 5 of the Act to submit that the same makes it clear that the opinion had been formed after due application of mind. It was argued that the petitioners had failed to establish their rights over the subject lands and hence, no further proceedings are required to be taken pursuant to the objections.
5.1 As regards the contention of the petitioners that they were owners of the subject lands by virtue of the certificates issued under section 32M of the Tenancy Act, it was submitted that the earlier order dated 19th July, 1989 which formed the basis of the certificate under section 32M has been set aside and hence, the certificates under section 32M have no legal effect. It was submitted that the respondent authorities have duly followed the relevant statutory provisions while declaring the consent award and hence, the petitioners Page 31 of 62 HC-NIC Page 31 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT are not entitled to any of the reliefs prayed for in the petitions.
6. Mr. R.D. Dave, learned counsel for the acquiring body adopted the submissions advanced by the learned Assistant Government Pleader. It was further submitted that the petitioners have failed to prove the ownership of the acquired lands and hence, the challenge to the proceedings taken under section 5A of the Act as well as section 9 of the 1894 Act would automatically fail. It was pointed out that the petitioners have gone to the Civil Court in Civil Suits No.335 and 336 of 2013 at Bharuch. It was also pointed out that in the year 2013, proceedings were conducted by passing consent award, to submit that in these circumstances, the challenge to the proceedings may not be entertained. It was contended that whereas the petitioners have challenged the notification under section 6 of the 1894 Act, the subsequent orders under section 11 thereof have not been challenged and the petitions should, therefore, fail on that count also. It was submitted that at this belated stage after the acquisition proceedings are over, these petitions may not be entertained.
7. In rejoinder, Mr. B.S. Patel, learned counsel for the petitioners referred to the proposal made by the Special Land Acquisition Officer under section 5A of the 1894 Act to submit that there was no application of mind on his part as provided under section 5A. It was contended that all the petitioners were not parties to the proceedings under section 70(b) of the Tenancy Act and hence, the contention that the petitioners are not tenants of the lands in question is misconceived. Referring to the order dated 30th June, 1990 (page 327 of SCA/3075/2013) passed by the Mamlatdar and ALT whereby he Page 32 of 62 HC-NIC Page 32 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT had determined the purchase price under section 32G of the Tenancy Act, it was submitted that section 32G is independent of section 70(b) thereof and hence, any order passed under section 70(b) would have no effect upon the order passed under section 32G of the Tenancy Act. It was submitted that the order under section 32G of the Tenancy Act has not been set aside till date. It was argued that any order passed on a compromise does not become the rule of law but is an agreement between the parties. It was pointed out that the rejection of the objections raised by the petitioners is not on the ground that their names are not reflected in the revenue record, to submit that there is a duty cast upon the Land Acquisition Officer to verify with the Panchayat as regards orders under section 32M and 32G of the Tenancy Act, which were on record. It was alleged that all the respondents are hand in glove with the fourth respondent and acting in collusion to deprive the petitioners of their rights. It was submitted that notice under section 9 of the Act of 1894 has not been issued in respect of the subject lands and that in the absence of any public notice, the absence of the petitioners' names in the revenue record is irrelevant. In conclusion, it was urged that grave injustice is caused to the petitioners and that the petitions deserve to be allowed.
8. This court has considered the rival submissions advanced by the learned counsel for the respective parties and has perused the record of the case as placed before the court as well as the decisions on which reliance has been placed by the learned counsel for the respective parties.
9. The record of the case reveals that these petitions Page 33 of 62 HC-NIC Page 33 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT had been filed sometime in February, 2013. At that point of time, the challenge in the petitions was to the communications dated 27th August, 2012 of the Deputy Collector and Special Land Acquisition Officer addressed to one Shri Vithalbhai Somabhai Patel and Shri Gamansinh Somabhai Patel in reply to the objections received by them for release of the land from acquisition. The petitioners had also sought a direction to the respondent authorities prohibiting them from making payment in the event the acquisition is upheld, to anyone, except the petitioners. The relevant portion of the communication dated 27th August, 2012 addressed to Shri Vithalbhai Somabhai Patel, as translated into English, reads thus:-
"The lands in respect of which the applicant has made representation bearing survey No.547 and 550 are included in the buffer zone in the GPCPSIRDO Development Plan and hence are not required to be acquired. Lands bearing Survey No.426 and 435/A and 435/B, are being acquired in compliance with constitutional justice which gives primacy to public interest as against private interest for the prestigious scheme of the GPCPSIRDO in the State and hence, it does not appear proper to accept the request to release such lands from acquisition." Which may be taken note of."
A similar letter dated 27th August, 2012 has been addressed to Shri Gamansinh Somabhai Patel to the effect that "in compliance with constitutional justice which gives primacy to public interest as against private interest the lands are being acquired for the prestigious scheme of the GPCPSIRDO in the State and hence, it does not appear proper to accept the request to release such lands from acquisition. Which may be taken note of."
Page 34 of 62HC-NIC Page 34 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT
10. Subsequently, during the pendency of the petitions, but before issuance of notice thereon, the notification under section 6 of the 1894 Act came to be issued on 14th March, 2013, whereupon the petitions came to be amended and further reliefs challenging the said notification as well as seeking a direction to the respondents No.1 to 3 to recover the amount paid to the respondent No.4 with interest came to be added.
11. It may be noted that neither Shri Vithalbhai Somabhai Patel nor Shri Gamansinh Somabhai Patel are parties to the present petitions, however, the petitioners have challenged the communications addressed to them. Nonetheless, it may be noted that by a letter dated 27 th August, 2012 of the Deputy Collector and Special Land Acquisition Officer, GIDC, Ankleshwar addressed to the Sarpanch, Manad, in connection with the objections submitted against the notification issued under section 4 of the 1894 Act whereby he had requested to release the land of Survey No.249 of mauje Manad, taluka district Bharuch from acquisition, it has been stated that the acquiring body - GIDC/General Manager (Land), Udyog Bhawan had, by its letter dated 23rd July, 2012 given a reply in the following terms:-
"The land in respect of which the applicant has made representation is as per the GPCPSIRDO's Development Plan in the "Specific Mixed Use Zone" and that in respect of lands except/other than those that are included in the buffer zones of the village site, keeping in view the constitutional mandate of giving precedence to public interest, the lands are being acquired for the important scheme of GPCPSIRDO and hence it does not appear proper to grant the request to release the land from acquisition. Instead, all the kutcha road joining Manad, Page 35 of 62 HC-NIC Page 35 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT Kesrol and Mahegam GPCPSIRDO is going to make other alternative arrangements" which may be taken note of.
Thus, in view of the above, your application has been filed which may be taken note of."
12. Similarly worded letters dated 27th August, 2012 have been addressed to Shri Amarsinh Naharsinh and Sarpanch, Manad and the residents of village Manad, to Shri Kanaksinh Vithalbhai Parmar, President, Proposed Bharuch Jilla Khedut/Ganotiya Hitrakshak Mandal, residing at Eksal, taluka district Bharuch, and to Shri Udaysinh Raj, President of the Gam Swarajya Kisan Seva Samithi AOBO, Navetha.
13. Since, subsequently, the notification under section 6 of the 1894 Act came to be issued, which is also subject matter of challenge in these petitions, the challenge to the communications dated 27th August, 2012 (Annexure 'A' to the petitions) pales into insignificance on account of the intervening circumstances. Essentially, therefore, these petitions are directed against the notification issued under section 6 of the 1894 Act and the petitioners also seek payment of compensation and recovery of the amount paid to the fourth respondent with interest.
14. The challenge to the notification under section 6 of the 1894 Act is on the ground that the provisions of section 5A thereof have not been complied with. According to the petitioners, the Land Acquisition Officer has not prepared any report and consequently, has not submitted any report to the State Government as contemplated under section 5A of the Act. This argument presumably is based upon the fact that by Page 36 of 62 HC-NIC Page 36 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT the communications dated 27th August, 2012, the Special Land Acquisition Officer has informed the above named persons that their applications have been filed for the reasons stated therein. By the said communication, the Land Acquisition Officer had also informed the persons of the decision taken by the acquiring body on their objections. However, having regard to the provisions of section 5A of the 1894 Act, it cannot be gainsaid that the opinion of the acquiring body is not the final word insofar as the decision to be taken on the objections raised by any person interested in the land which has been notified under section 4(1) of that Act.
15. Since the principal contention raised in these petitions is regarding non-compliance with the provisions of section 5A of the 1894 Act, for the sake of convenience the same is reproduced hereunder:
5A. Hearing of objections.--(1) Any person interested in any land which has been notified under section 4, sub- section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard [in person or by any person authorised by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Page 37 of 62 HC-NIC Page 37 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT Government on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.
Thus, sub-section (1) of section 5A of the 1894 Act provides for any person interested in any land which has been notified under sub-section (1) of section 4 to file objections to the acquisition of the land within thirty days from the date of publication of the notification. Sub-section (2) thereof provides for the Collector to grant an opportunity of hearing to the person who has made such objections and thereafter to make a report to the appropriate Government containing his recommendations on the objections. Sub-section (3) thereof specifies that a person shall be deemed to be interested in the land who would be entitled to claim an interest in compensation if the lands were acquired under this Act.
16. The record of the case reveals that pursuant to the notification issued under sub-section (1) of section 4 of the 1894 Act, the Eksal Gram Panchayat passed a resolution authorising the Panchayat to take appropriate steps against the notification under section 4 of the Act as the people of the village had refused to give their agricultural lands to GIDC. Affidavits came to be made by various persons residing in the village stating that under no circumstances are they willing to give their lands to the GIDC. Shri Vithalbhai Somabhai Patel (who is not a petitioner in these petitions) addressed a letter dated 29th March, 2012 to the Deputy Collector and Special Land Acquisition Officer, Bharuch to the effect that the notification under section 4 for acquisition of lands for GIDC Page 38 of 62 HC-NIC Page 38 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT has been issued without their permission which is illegal. They, the agriculturists, do not desire to give their lands for acquisition at any cost because they are earning a livelihood out of agriculture and their lands are fertile and yield more produce and they are able to get much more returns out of the lands. The land is like their mother and hence they do not desire to give their lands to GIDC for establishing residences and industries and that they will give up their lives but not their lands and hence, the notification issued for acquisition for GIDC should be cancelled and they should be permitted to peacefully cultivate their lands, failing which, they would have to take shelter of courts and obtain justice from the Government of Gujarat or GIDC and they would carry out agitation and satyagraha and go on fast and the entire responsibility shall be of the administration. Hence, no entry as regards the notification be made in the 7/12 record of their lands.
17. Pursuant to the objections raised by the petitioners through Shri Kanaksinh Vithalbhai Parmar, notice fixing the hearing came to be issued to the objectors. In response thereto, Shri Kanaksinh Vithalbhai Parmar, in his capacity of President, Proposed Bharuch Jilla Khedut/Ganotiya Hitrakshak Association, addressed a communication dated 26th April, 2012 to the Special Land Acquisition Officer making submissions in connection with the objections raised by them, wherein they have stated that they have claimed tenancy rights against the original owners and have made allegations that the representatives of the owners, in connivance with the revenue authorities, have obtained orders against them and that they have initiated proceedings in the court for the tenancy rights.
Page 39 of 62HC-NIC Page 39 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT Till their tenancy rights are decided, the lands which are in the possession and occupation of the members of the Association may not be acquired. That along with their objection application, they have submitted proof from the record and keeping in view the same, proceedings for acquisition of the lands in their possession may not be taken, despite which, if proceedings are taken, the entire responsibility shall be of the acquiring body. A special note has been added to the effect that the notice of hearing is dated 17th April, 2012 and hence, the time is very short and, therefore, they did not have sufficient time to avail of legal guidance and to collect proof in the nature of record and hence, they reserve their rights to produce further proof and make additional submissions.
18. From the record of the case, it appears that the GIDC had forwarded a proposal for issuance of notification under section 6 of the 1894 Act for the purpose of acquisition of the lands of village Kesrol, Manad and Eksal. In connection therewith, the Section Officer, Revenue Department, Gujarat by a communication dated 27th February, 2012 addressed to the Officer on Special Duty, GIDC, informed him that a proposal for issuance of notification under section 6 in respect of the lands of village Kesrol, Manad and Eksal to the extent indicated therein, has been sent to the Government for sanction thereof. It is further stated therein that in connection with the acquisition of the lands of the above villages, the agriculturists, landholders and village people (in connection with the road) submitted objections. In this regard, in connection with the report submitted by that office (addressee) under section 5A of the Land Acquisition Act, the Principal Secretary, Revenue Department and the officers of the GIDC, Gandhinagar had Page 40 of 62 HC-NIC Page 40 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT convened a meeting and as per the discussion that had taken place, it appears that the acquiring body and the Special Land Acquisition Officer have not given any clear opinion, therefore, an opinion be forwarded forthwith, containing the details of the objections raised by the agriculturists-landholders, and their clear opinion in connection therewith. Subsequently, by a letter dated 5th March, 2013, of the Special Land Acquisition Officer, GIDC addressed to the Section Officer, Revenue Department, the objections received under section 5A in respect of the road as well as all other landholders and the opinion of the acquiring body and the Special Land Acquisition Officer in that regard, requesting for sanction of the declaration under section 6 of the 1894 Act have been forwarded to the Revenue Department. A perusal of the report submitted by the Special Land Acquisition Officer reveals that he has recorded the objections raised by the interested persons, the opinion of the acquiring body and the opinion of the Land Acquisition Officer. Insofar as the objections raised by Shri Kanaksinh Vithalbhai Parmar, President, Proposed Bharuch Jilla Khedut/Ganotiya Hitrakshak Mandal, Eksal dated 9th April, 2012, the Land Acquisition Officer has opined that "the owner as per the record of Survey No.249 of mauje Manad, taluka Vagra has given his consent for acquisition of the land. The applicant has to first establish tenancy rights before taking any action under the provisions of the Land Acquisition Act. Hence, keeping in view the public interest, he agrees with the opinion of the acquiring body." The opinion of the acquiring body is to the effect that "the objection has been raised in respect of Survey No.249, which the owner as per the record, has handed over with consent. The applicants have not raised any objection against acquisition. Their submission relates to establishing Page 41 of 62 HC-NIC Page 41 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT their right as tenants. The applicants have not established that they are owners. Even if they do so establish, in the larger public interest, the acquisition should be proceeded with."
19. Thus, it is evident that both, the acquiring body as well as the Special Land Acquisition Officer, have applied their minds to the objections raised on behalf of the petitioners and have given their recommendations accordingly. The State Government has accepted the recommendations of the acquiring body and the Land Acquisition Officer and has granted sanction for issuance of the declaration under section 6 of the 1894 Act, pursuant to which such notification has been issued on 14th March, 2013.
20. On behalf of the petitioners, it has been contended that preparation of the report and submission of the same to the State Government is not an empty formality and that it has to be followed in letter and spirit. That it is the duty of the Government to consider all the objections and decide the same. It has also been contended that the satisfaction recorded by the Government for approving the notification under section 6 of the 1894 Act has not been produced on record.
21. Section 5A of the 1894 Act, as noted hereinabove, requires the Collector to consider the objections received by interested persons and to give an opportunity of hearing and forward the same to the appropriate Government with his recommendations on such objections for the decision of the Government. From the facts noted hereinabove, it is evident that the Land Acquisition Officer had, after considering the Page 42 of 62 HC-NIC Page 42 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT objections raised by the petitioners, and after affording them an opportunity of hearing, submitted a report containing his recommendations on the objections, together with the opinion of the acquiring body. The State Government, after considering the same, has decided to proceed further with the acquisition proceedings in respect of the lands in question and, accordingly, the declaration under section 6 of the 1894 Act has been published. As noticed earlier, on the earlier occasion, the State Government had found that the report submitted by the Land Acquisition Officer did not give any clear opinion, and had accordingly, called for details of the objections raised by the agriculturists-landholders and a clear opinion of the Land Acquisition Officer and the acquiring body, in connection therewith. Subsequently, the above referred report came to be submitted and the State Government after considering the same has decided to accept it. Under the circumstances, it cannot be said that the procedure as laid down under section 5A of the 1894 Act has not been followed or that there is any non-compliance of the provisions thereof. These petitions have been filed under Article 226 of the Constitution of India. It is by now well settled by a catena of decisions of the Supreme Court that the High Court, while exercising powers of judicial review under Article 226 of the Constitution, sits in judgment only on the correctness of the decision-making process and not on the correctness of the decision itself. The power of judicial review is not directed against the decision but is confined to the decision-making process. It is not an appeal from a decision, but a review of the manner in which the decision is made. Thus, this court in exercise of powers of judicial review would not substitute its opinion in place of the satisfaction recorded by the concerned authority. In the facts of the present case, Page 43 of 62 HC-NIC Page 43 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT the procedure as laid down under section 5A of the 1894 Act having been substantially complied with, this court does not find any warrant for setting aside the declaration under section 6 of the said Act.
22. As regards the prayer for payment of compensation to the petitioners and recovery of the amount from the fourth respondent with interest, the petitioners claim to be owners of the lands under acquisition by virtue of certificates issued under section 32M of the Tenancy Act. It may be noted that despite the fact that such certificates have been issued on 21st December, 1989, till date, the names of the petitioners have not been reflected in the Record of Rights. On the other hand, it is the case of the fourth respondent that the certificate under section 32M of the Act in Form 9 at page 80 of Special Civil Application No.3070 of 2013 is duplicate in nature and the original Form 9 certificates are not coming on record and that all the certificates produced in Special Civil Application No.3075 of 2013 are duplicate certificates, except that of Soma Chita which is dated 6th August, 1990; and that the ledger accounts of the seven certificate holders would clarify that the certificates are issued prior to 1993. It is further the case of the fourth respondent that the certificates under section 32M have been issued pursuant to orders passed by the Mamlatdar and ALT holding the said petitioners to be tenants under section 70(b) of the Tenancy Act. That the order passed by the Mamlatdar under section 70(b) of the Tenancy Act came to be challenged before the higher forum by the fourth respondent and the same was set aside and the matter was remanded to the Mamlatdar for deciding the same afresh. The Mamlatdar thereafter, by an order dated 24th November, Page 44 of 62 HC-NIC Page 44 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT 1993, held that the petitioners were not entitled to a declaration that they are tenants under section 70(b) of the Act and accordingly rejected the said applications. The concerned petitioners went in appeal before the Deputy Collector, Bharuch under section 74 of the Tenancy Act. By an order dated 10th January, 1994, the Deputy Collector, Bharuch rejected all the three tenancy appeals and upheld the order passed by the Mamlatdar and ALT. The said petitioners carried the matter further by filing three separate revision applications before the Gujarat Revenue Tribunal under section 76 of the Tenancy Act. By a common order dated 24th March, 1995, the Gujarat Revenue Tribunal dismissed all the revision applications and confirmed the orders passed by the courts below. Against the order passed by the Tribunal, the concerned petitioners approached this court by way of writ petitions being Special Civil Applications No.5377 and 5378 of 1995. In the proceedings of the said writ petitions, the concerned petitioners and other parties also filed consent terms in the following terms:
"1. In Tenancy Cases No.2 of 1991, 3 of 1991 and 4 of 1991, the petitioners and other applicants have not been declared to be tenants of land situated at Keshrol, Ekshal and Manad situate within Taluka Bharuch for following block Nos. by order dated 24-11-1993 passed by Mamlatdar, Bharuch.
Name of village Tenancy Block No. Area
Case No. Acres & Gunthas
Keshrol 2/91 139 paiki 226-21
Taluka Bharuch
Eksal 3/91 2 269-29
Taluka Bharuch
Magnad 4/91 249 171-18
Taluka Bharuch
The Prant Officer, Bharuch dismissed the appeals Page 45 of 62 HC-NIC Page 45 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT being Appeal No.20 of 1993, 21 of 1993 and 22 of 1993 preferred by the petitioners and other applicant by order dated 20-1-1994.
The Gujarat Revenue Tribunal dismissed the Revision Applications being TEN/BA/106, 107 and 108 of 1994 preferred by the petitioner and other applicants by its order dated 24-3-1995.
The petitioners and other applicants have preferred Special Civil Application No. 5377 of 1995 and other petitions before this Hon'ble Court. The petitioners do not press the said petitions.
2. It is agreed and declared before this Hon'ble Court that the petitioners and their family members do not claim any right, title and interest in the above mentioned lands.
3. The petitioners agree and declare before this Hon'ble Court that they were never in possession of the lands as tenants and agriculturists at any time as claimed by them in the above proceedings.
4. In order to save further litigation between the parties, the respondents agree that the respondents shall compensate the petitioners and other applicants and pay compensation as indicated in the statement filed herewith. The petitioners further declare that they have received payment in accordance with the aforesaid statement which is annexed hereto.
5. The petitioners declare that the petitioners have received down payment as indicated in the statement and balance amount towards compensation is paid by post- dated cheques. The respondents undertake and declare before this Hon'ble Court that those cheques when presented on the date mentioned therein, will be honoured.
6. The petitioners agree and declare that the petitioners and their family members have handed over possession of the lands in question and the petitioners and their family members do not claim any right, title or interest in the lands in question.
7. The petitioners file herewith an undertaking before this Hon'ble Court to the effect that the petitioners and Page 46 of 62 HC-NIC Page 46 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT their family members have handed over the possession of the lands in question and if some encumbrances is found, the same shall be removed before 30-11-2010 and the petitioners and applicants have filed an undertaking that they shall not part with their alleged possession of the lands in question in favour of any third party in the meanwhile.
In view of above, the petitioners withdraw proceedings filed before this Hon'ble Court."
23. Vide separate orders dated 30th August, 2010, Special Civil Applications No.5377 of 1995 and 5378 of 1995 came to be disposed of in terms of the Consent Terms which were placed and taken on record. Rule was discharged subject to the direction that the parties shall abide by the Consent Terms and the Undertaking filed thereunder. Similarly, by an order dated 21st September, 2010, Special Civil Application No.5381 of 1995 came to be disposed of as withdrawn in view of the settlement between the parties. Subsequently, miscellaneous civil applications for review came to be filed in the above writ petitions being Miscellaneous Civil Application No. 1702 of 2012 in Special Civil Application No. 5378 of 1995 and Miscellaneous Civil Application No.1782/2012 in Special Civil Application No.5377/1995 for recalling the orders dated 30th August, 2010, contending that the applicants had been duped into signing the consent terms and that the conditions contained in the consent terms were contradictory and in fact, the right vested in the applicants was taken away by the order. The learned Single Judge by an order dated 28th September, 2012 passed in Miscellaneous Civil Application No.1782 of 2012 dismissed the application. The court in paragraphs 3 and 4 of the said order held thus:
"3. In the facts of the present case, not only that no Page 47 of 62 HC-NIC Page 47 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT evidence of any fraud or malpractice is brought on record and established, but it is specifically stated on oath in the affidavit-in-reply that each of the applicants has been paid the amounts due and evidence in that regard is annexed with the affidavit. It is further stated on oath in the affidavit-in-reply that 20% of the amount of compensation as agreed was paid before the consent terms were executed and the entire amount due under the consent terms was thereafter paid by cheques to even those original petitioner Nos.2, 5 and 8, whose names were deleted from the proceedings; and certificates showing actual payments having been made by cheques were annexed with the affidavit. It is further stated that in spite of some of the claimants not being on record in the original proceedings, their representatives were present before the Court and payments were made in their favour like any other petitioner and those representatives have also signed the consent terms. It is further stated that original petitioner No.6 was deleted from the proceedings on 30.7.2010 and, on his behalf, Mr. Parbatbhai Bhagwanbhai was present, who has signed the consent terms. Under the circumstances, it clearly appeared that the applicants had made an attempt at unduly dragging the respondents to the Court with an oblique motive and that amounts to abuse of the process of court. Therefore, the application is dismissed with costs quantified at Rs.5,000/-, which the applicants shall be jointly and severally liable to pay to the respondent No.2, within a period of one month.
4. It is, however, clarified that while dismissing the application in the facts and for the reasons briefly stated hereinabove, the applicants will be at liberty to pursue any other proceeding as may be advised, in accordance with law, if they still have a cause of action."
Miscellaneous Civil Application No.1702 of 2012 also came to be dismissed by an order dated 28th September, 2012 by recording similar reasons. Miscellaneous Civil Application No.2940 of 2012 in Special Civil Application No.5381 of 1995 also came to be filed by the concerned petitioners which came to be disposed of by an order dated 14th December, 2012.
Page 48 of 62HC-NIC Page 48 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT
24. Against the above orders dated 28th September, 2012 passed by the learned Single Judge, the said petitioners preferred letters patent appeals being Letters Patent Appeals No.1311 and 1323 of 2012. By an order dated 17th October, 2012, a Division Bench issued notice subject to the condition that the petitioners shall deposit the total amount received pursuant to the agreement between the parties, which is sought to be withdrawn by filing an application for review, within two weeks from the date of the order before the Registrar General of this court. The court also recorded that in default of depositing the said amount within the aforesaid period, the notice shall stand dismissed. Thereafter, a Miscellaneous Civil Application No.612/2013 came to be filed by those petitioners for modification of the order dated 17th October, 2012. The court, after hearing the learned advocate for the appellant and after going through the material on record, was not inclined to entertain the application for modification not only on the ground of limitation because the appeals stood dismissed on 2nd November, 2012 for non- compliance of the order, but also on merit. The court was of the view that a person taking financial benefit under an agreement, cannot pray for recall of such agreement on the ground of fraud without being prepared to refund the benefit derived out of the said agreement. From the facts noted hereinabove, it is evident that the proceedings under section 70(b) of the Tenancy Act culminated into orders passed in favour of the fourth respondent and against the petitioners.
25. It is the case of the petitioners that they were not parties in the above proceedings and that the orders fixing purchase price have been issued under section 32G and the Page 49 of 62 HC-NIC Page 49 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT certificates issued under section 32M of the Tenancy Act have not been set aside by any authority. In the opinion of this court, from the facts which have come on record, it appears that the orders under section 32G of the Tenancy Act fixing the purchase price, followed by the certificates under section 32M thereof, were pursuant to the proceedings under section 70(b) of the said Act wherein the Mamlatdar and ALT had initially held the applicants therein to be tenants in respect of the said lands. However, subsequently the order passed by the Mamlatdar and ALT has been set aside and the petitioners have failed in their challenge to the same. Under the circumstances, when the order under section 70(b) which forms the basis for passing the order under section 32G and issuance of certificates under section 32M of the Tenancy Act has been set aside, the certificate under section 32M of the said Act would no longer have any legal effect.
26. On behalf of the fourth respondent, a contention has been raised that the petitioners have no locus to challenge the acquisition proceedings, inasmuch as, they are neither owners nor tenants. In this regard, as noticed hereinabove, despite it being the case of the petitioners that they are owners of the lands in question by virtue of certificates issued under section 32M of the Tenancy Act, till date, their names are not reflected in the revenue record. The record of the case reveals that representatives of each of the petitioners in Special Civil Application No.3070/2013, Shri Fatesang Chhitabhai Patel, heir of petitioner No.1 - deceased Chhitabhai Devjibhai Patel has been paid an amount of Rs.7,10,600/- as per the affidavit dated 19th February, 2011 executed by him. Shri Mavsangbhai Raijibhai Gohil- petitioner No.2 (since Page 50 of 62 HC-NIC Page 50 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT deceased) has also filed consent terms in Special Civil Application No.5377/1995 and has sought permission to withdraw the proceedings in view of the settlement arrived at between the parties. Shri Ranchhodbhai Haribhai Gohil - the petitioner No.3 has filed consent terms seeking permission to withdraw the proceedings in view of the settlement arrived between the parties. Shri Musa Valibhai Patel - heir of deceased Valibhai Umarji Patel - petitioner No.4 has executed an agreement giving up rights of possession as well as a release deed dated 2nd February, 2011 wherein it is recorded that he has received a sum of Rs.25,50,000/- by way of compensation from the fourth respondent. Shri Ismail Umarji Patel, Iqbal Umarji Patel and Inayat Umarji Patel - heirs of deceased Umaji Isap Patel have executed a consent and authority letter dated 3rd January, 2011 and have stated that they have received an amount of Rs.20,55,000/- towards their father's share. Thus, the representatives of each of the petitioners in the above petitions have received amounts under the consent terms. In Special Civil Application No.3075/2013, Shri Laxmanbhai Bhikhabhai Valand, as heir and legal representative of deceased Bhikhabhai Harjibhai Valand - petitioner No.1 has made an affidavit dated 24th January, 2011, stating that he has been paid Rs.7,84,000/- and that he is fully satisfied therewith by way of full and final settlement with the original land owner. Shri Somabhai Chhitabhai Rathod - petitioner No.2 has executed a consent authority letter dated 24th January, 2011 stating that he has received Rs.9,87,000/-. Shri Parbhubhai Govindbhai Aahir, as heir and legal representative of deceased Govindbhai Devabhai Aahir - petitioner No.3 has made an affidavit dated 24th January, 2011 to the effect that he has been paid Page 51 of 62 HC-NIC Page 51 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT Rs.3,50,000/- towards full and final settlement with the original land owner. Shri Shravanbhai Mangabhai Rathod, as heir of deceased Mangabhai Sindhiyabhai Rathod - petitioner No.4 has filed an undertaking as well as consent terms to the effect that upon receipt of payment of compensation, he shall not claim any right, title or interest in the lands described therein. The petitioner No.5 - Laxmanbhai Dhurabhai Gohil has filed a similar undertaking and consent terms. Shri Laxmanbhai Kesarbhai Gohil, heir and legal representative of deceased Kesarbhai Abhabhai Gohil, has filed a similar undertaking and consent terms. Manubhai Chimanbhai Rathod, heir and legal representative of Chimanbhai Bajibhai Rathod - petitioner No.7, has filed a consent letter giving up possessory right as well as release deed dated 24th January, 2011 wherein it is stated that he has received Rs.11,20,000/- towards the settlement arrived at between the parties. Thus, representatives of all the petitioners in both these petitions have received payment towards compensation in terms of the settlement arrived at between the parties whereby the petitioners have agreed that they do not have any right, title or interest in the lands in question. These petitions are, therefore, yet another attempt on the part of the petitioners to wriggle out of the commitment made by them under the said consent terms and undertaking filed before this court. Having once accepted payment as per the consent terms and having filed undertakings before this court, it is now not permissible for the petitioners to contend to the contrary. The petitioners, in these petitions, have contended that the provisions of section 5A of the Act have not been complied with. In this regard, it may be pertinent to note that sub-section (1) of section 5A contemplates objections being made by any person Page 52 of 62 HC-NIC Page 52 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT interested in the land. Sub-section (3) thereof provides that for the purpose of that section, a person shall be deemed to be interested in land who would be entitled to claim an interest in the compensation if the land were acquired under the Act. From the facts as emerging from the record, since the petitioners have lost in the Tenancy Proceedings till the stage of letters patent appeals, the claim that they are tenants of the lands in question does not stand established. Besides, representatives of each group of petitioners have filed consent terms in the writ petitions challenging the orders passed by the Gujarat Revenue Tribunal in the Tenancy proceedings. In these circumstances, it goes without saying that, at this stage, without having established any right, title or interest in the lands in question, the petitioners are not entitled to claim any interest in the compensation of the acquired land. Under the circumstances, the petitioners not being persons interested in the land notified under section 4, sub-section (1) of the Act, do not have any locus to file any objection under section 5A of the Act. The contention that the rights between the parties have to be decided by the reference court is also misconceived, inasmuch as, tenancy rights cannot be decided by the reference court, which in turn would be required to refer the same to the authorities under the Tenancy Act. Since the authorities under the Tenancy Act have already decided such issue, the question of adjudicating such rights once again would not arise. The learned counsel for the fourth respondent is, therefore, justified in contending that the petitioners do not have any locus to file the present petitions challenging the declaration under section 6 of the 1894 Act, as they have no right, title or interest in the same.
Page 53 of 62HC-NIC Page 53 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT
27. On behalf of the petitioners, it has also been contended that once the petitioners have been declared as tenants under the provisions of the Tenancy Act and certificates under section 32M have been issued in their favour, such rights cannot be waived or surrendered in favour of the landlord except in accordance with the provisions of section 15 of the Tenancy Act in which case, the lands would vest in the State Government. Further, that even if the tenancy is surrendered under section 15 of the Act, the tenant has the first right to purchase the same. It was submitted that, therefore, the consent terms executed by the petitioners, would not deprive them of their tenancy rights under the provisions of the Tenancy Act.
28. In the facts of the present case, as noted hereinabove, proceedings under section 70(b) of the Tenancy Act culminated into an order passed by the Gujarat Revenue Tribunal against the petitioners holding that they are not entitled to be declared as tenants and also holding that in view of the provisions of section 88 of the Tenancy Act, the lands in question were exempted from the provisions of the said Act. In the writ petitions filed by the concerned petitioners before this High Court, the above referred consent terms came to be executed and a settlement came to be arrived at between the parties and the petitions came to be disposed of in terms thereof. Thus, prima facie, it does not appear as if any tenancy rights have been waived by the petitioners in favour of the fourth respondent, and on the contrary, despite the fact that he had succeeded before all the authorities under the Tenancy Act, the fourth respondent, with a view to buy peace and to bring an end to the litigation, has agreed to settle the matter Page 54 of 62 HC-NIC Page 54 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT with the petitioners and has paid them the amounts as agreed between them.
29. The most significant aspect which arises for consideration in these matters is that what is subject matter of challenge in the present petitions is the declaration under section 6 of the 1894 Act. This court, for the reasons stated hereinabove, has upheld the declaration under section 6 of the 1894 Act. Insofar as the disputes raised by the petitioners as regards their claim of tenancy over the lands in question are concerned, the same are disputed questions of fact and hence, cannot be decided by this court in exercise of powers under Article 226 of the Constitution of India. Nonetheless, since various submissions were advanced before this court by the learned counsel for the petitioners, this court was required to undertake the above exercise and examine the merits of the rival contentions, so as to test the validity of the contentions raised by the learned advocate for the petitioners.
30. Another contention raised on behalf of the petitioners is that the consent award has been declared on 10 th May, 2013 and that 90% of the awarded amount has already been paid over to the land owner on 21st August, 2012. It has been alleged that such amount has been paid to the original land owner in view of the collusion and connivance with the revenue authorities. It has also been alleged that no notices under section 9 of the 1894 Act have been issued prior to passing of the consent award and hence, the award stands vitiated, inasmuch as, the petitioners, being interested persons, could not appear before the Collector and state the nature of their respective interest in the land. In this regard Page 55 of 62 HC-NIC Page 55 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT reference may be made to the decision of the Supreme Court in the case of State of Maharashtra v. Umashankar Rajabhau (supra) wherein it has been held thus:
"2. It is seen that Section 4(1) does not require the service of the personal notice nor the one under Section 6 declaration. What is needed to be served in the locality and the Gazette which have been complied with. As re- gards the notices under Section 9, it now transpires from the revenue records that the original owner namely, Us- manshahi Mill was served. Since mutation had not been ef- fected in the name of Respondents 1-3 though purchased prior to the publication of notification under Section 4(1), they could not be issued notices as required under Section
9. Notice to the fourth respondent is obviously impossible, since the award has already been made on 15-9-1971. His purchase thereafter is obviously illegal as it does not bind the State after the notification under Section 4(1) was pub- lished. Under these circumstances, the High Court was wholly unjustified in quashing acquisition in respect of three plots of land of Respondents 1-3."
In State of Karnataka v. Narasimhamurthy (supra), the Supreme Court has held thus:
"5. A reading of Section 3(1) clearly indicates that if any time State Government has the intention to acquire any land for the purpose of providing house sites to the weaker sections of the people who are houseless, the State Government may, by notification, give notice of its intention to acquire such land. The notice as contemplated under sub-sec. (1) per se does not envisage to include the name of the owner in the notification published under sub-sec. (1) of Section 3 of the Act. What Section 3(1) envisages is that the notification should specify the Government's intention to acquire the land which is mandatory. Sub-section (2) of the Act postulates that on publication of a notification under sub-sec. (1) the State Government shall serve notice upon the owner or where the owner is not the occupier, upon the occupier of the land and all such persons known or believed to be interested therein, to show cause within thirty days from the date of service of notice as to why the land should not be acquired. Therefore, when the follow up action is being taken under sub-sec. (2) of Section 3, notice shall be Page 56 of 62 HC-NIC Page 56 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT served upon the owner or where the owner is not the occupier, on the occupier of the land and all persons known or believed to be interested therein to show cause as to why the acquisition should not be proceeded with for the public purpose. In other words, the opportunity shall be given to the owner who is known by the entries in the mutation proceedings or the occupier of the land or person/persons known or believed to be interested in the land. Admittedly, Houlabi (the recorded owner) was given notice and she did not appear. The mutation proceedings did not contain the name of the first respondent nor was it effected in the record. Consequently, notice could not be issued to the 1st respondent."
In the light of the principles propounded in the above decisions, notices under the 1894 Act are required to be issued to the persons whose names are reflected in the revenue record. In the opinion of this court, there is no duty cast upon the Land Acquisition Officer to inquire from the Panchayat as to whether any proceedings under the Tenancy Act have been taken and ascertain the names of persons who have instituted such proceedings and issue notices to them. Moreover, in this regard, it may be noted that the notification under section 4 of the 1894 Act came to be issued on 15th March, 2012 and the declaration under section 6 of the Act came to be made on 14 th March, 2013 whereas the consent award came to be made on 10th May, 2013. It appears that prior to making of the consent award, notice under section 9 of the 1894 Act had not been issued, however, subsequently, in relation to those lands in respect of which no consent award had been made, notices under section 9 of the said Act came to be issued on 22nd October, 2012. In the present case, the award in favour of the fourth respondent had been made under sub-section (2) of section 11 of the 1894 Act. Sub-section (2) of section 11 of the 1894 Act, as applicable to the State of Gujarat, provides that Page 57 of 62 HC-NIC Page 57 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appear before him are agreeable to the award which he proposes to make under that section, the Collector may, without making further inquiry, require such persons to execute an agreement in the form prescribed by the State Government and make an award according to such agreement. Thus, sub-section (2) of section 11 of the 1894 Act provides for making of award at any stage of the proceedings. Such stage, therefore, could also be before issuance of notice under section 9 of the Act, if the persons interested in the land are agreeable to the award as proposed by the Collector. In the facts of the present case, it is an admitted position that the revenue record does not reflect the names of the petitioners. Till date, the petitioners have not established any right, title or interest over the lands under acquisition. Under the circumstances, it was permissible for the Collector to make an award in terms of the agreement entered into with the fourth respondent, who is the owner as reflected in the record. It may also be noted that while submissions have been made challenging the consent award under section 11(2) of the Act, no relief has been prayed for in this regard. Nonetheless, since a contention has been raised, the same has been dealt with.
31. To summarize:
- For the detailed reasons recorded hereinabove, in the opinion of this court, the State Government has duly applied its mind to the objections raised by the petitioners before deciding to publish the Page 58 of 62 HC-NIC Page 58 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT declaration under section 6 of the 1894 Act. Accordingly, there is no breach of the provisions of section 5A of the 1894 Act as alleged. It is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. Accordingly, this court having found that there is no illegality in the decision-making process, cannot interfere with the ultimate policy decision taken by the State Government to publish the declaration under section 6 of the 1894 Act and substitute its opinion in place of the opinion of the competent authority. The challenge to the declaration under section 6 of the 1894 Act must, therefore, fail.
- The petitioners have not established any right, title or interest in the land which has been notified under section 4, sub-section (1) of the 1894 Act and hence, have no locus standi to file the present petitions challenging the declaration under section 6 of the said Act.
- The petitioners have lost up to the stage of the Gujarat Revenue Tribunal in the proceedings under the Tenancy Act, and in the writ petitions filed against the order passed by the Gujarat Revenue Tribunal, representatives of each of the petitioners have entered into consent terms with the fourth respondent and have agreed that they have no right, title or interest in the lands under acquisition and have filed undertaking to that effect. Thus, in Page 59 of 62 HC-NIC Page 59 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT the letters patent appeal filed by the petitioners, the Division Bench had, as a condition precedent for entertaining the appeals, directed the petitioners to return the amount received by them under the consent terms. However, such amount was not returned and consequently, the letters patent appeal came to be dismissed. Thus, it is now not open to the petitioners to disown the consent terms and the undertakings filed before this court and claim compensation under the 1894 Act.
- When the order under section 70(b) of the Tenancy Act which forms the basis for passing the order under section 32G and issuance of certificates under section 32M of the Tenancy Act has been set aside, the certificates under section 32M of the said Act no longer have any existence in the eyes of law.
- As regards the contention that the consent terms are not binding upon the petitioners as in view of the provisions of section 15 of the Tenancy Act, tenancy rights cannot be waived, in the opinion of this court, for the purpose of waiving tenancy rights, such rights have to first be established. In the present case, the petitioners have failed to establish tenancy rights in proceedings under the Tenancy Act, but the fourth respondent to buy peace has agreed to pay certain amounts to the petitioners and has entered into consent terms accordingly. Thus, this is not a case of surrender of tenancy rights.
Page 60 of 62HC-NIC Page 60 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT
- As regards the contention that notices under section 9 of the 1894 Act have not been served upon them, considering the fact that the names of the petitioners are not reflected in the revenue record, no fault can be found in the conduct of the Land Acquisition Officer in not issuing notices to them.
- As regards the contention that the consent award could not have been made prior to issuance of notices under section 9 of the 1894 Act, sub-section (2) of section 11 of the 1894 Act provides for making of award at any stage of the proceedings. Such stage, therefore, could also be before issuance of notice under section 9 of the Act, if the persons interested in the land are agreeable to the award as proposed by the Collector. Since, the petitioners till date, have not established any right, title or interest over the subject lands, it was always open for the Collector, at any stage of the proceedings to make an award under sub-section (2) of section 11 of the 1894 Act when the persons interested in the land were agreeable to it.
- As regards the contention that the petitioners are still in possession of the lands in question, apart from the fact that such stand is contrary to the consent terms and undertaking filed in the above referred writ petitions, the same being a disputed question of fact cannot be decided in a writ petition under Article 226 of the Constitution of India. Under Page 61 of 62 HC-NIC Page 61 of 62 Created On Wed Jun 08 01:18:09 IST 2016 C/SCA/3070/2013 CAV JUDGMENT the circumstances, the reliefs prayed for to the effect that compensation should be paid to the petitioners and that the amount paid to the fourth respondent be recovered with interest, also do not deserve to be granted.
32. For the foregoing reasons, the petitions fail and are accordingly dismissed with costs.
( Harsha Devani, J. ) ( G.B. Shah, J. ) hki Page 62 of 62 HC-NIC Page 62 of 62 Created On Wed Jun 08 01:18:09 IST 2016