Gujarat High Court
Ramubhai Lavjibhai Vaghri vs State Of Gujarat & 4 on 7 September, 2017
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/15872/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15872 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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 ?
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RAMUBHAI LAVJIBHAI VAGHRI....Petitioner
Versus
STATE OF GUJARAT & 4....Respondents
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Appearance:
MS. KRUTI M SHAH, ADVOCATE for the Petitioner
MR SHIRISH H. GOHIL AGP for the Respondent Nos. 1 - 4
MR SUNIL C PATEL, ADVOCATE for the Respondents No. 5
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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Date : 07/09/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Heard learned counsels for the parties. As the controversy was in a narrow compass, counsels for the parties have urged the Court to dispose of the matter finally. Accordingly, the matter was taken up final hearing.
2. Rule. Mr. Gohil, learned AGP waives service of notice of Rule on behalf of respondent no. 1 to 4 and Shri Patel, learned advocate waives service of notice of Rule on behalf of respondent no. 5. By consent, Rule is fixed forthwith.
3. The petitioner, by way of this petition, has approached this Court invoking Article 226 of the Constitution of India, challenging the order dated 25.5.2015 passed by respondent no. 2 ordering payment of compensation under Section 29A of the Railways Act, 1989 (hereinafter referred to as 'the Act' for short) for acquiring the land on the basis of the agreement to sale dated 28.6.2010 pursuant to order of Award of acquisition dated 27.9.2012.
4. The facts in brief, leading to filing this petition, as could be gathered from the memo, deserve to be set out as under:
That Chhotubhai Lalbhai Desai was the owner and occupant of land being Block No. 55 admeasuring 0-07-10 sq.mt situated at village: Lilapor, Taluka & Dist.: Valsad. The petitioner has purchased the land in question by registered sale deed dated 14.10.2001 from original owner but as there was some typing Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Sep 16 06:36:03 IST 2017 C/SCA/15872/2016 JUDGMENT mistake, another registered sale deed was executed on 21.4.2002.
Pursuant to which mutation entry No. 2114 dated 4.2.2013 was made in the revenue record and certified on 6.5.2013 and from that date, name of petitioner was running in the revenue record as owner and occupant of the land in question. That several land including the land of petitioner was acquired under Railways Act for Western Railway Dedicated Freight Corridor Corporation of India for which the notification under Section 21A of the Railways Act was published on 19.06.2010, to which mutation entry no. 2039 dated 20.01.2011 was posted and certified on 18.06.2011 in the revenue record. The Competent Authority and Deputy Collector completed proceedings under Section 20F of the Act and decided the amount of compensation by Award dated 27.09.2012. Though the name of petitioner was running the revenue record, the respondent authority vide order dated 25.5.2015 released the amount of compensation in favour of respondent no. 5 on the basis of his claim of purchase on the basis of notarized agreement to sale. Hence, present petition is filed under Article 226 of the Constitution of India, challenging the order dated 25.5.2015.
Thus, the present petition came to be preferred as the concerned authority is said to have patently erred in not following the provisions of law and ordering the payment of compensation in favour of respondent no. 5, who have any entitlement whatsoever for receiving the said compensation particularly on the strength of agreement to sale.
5. Learned advocate appearing for the petitioner invited this Court's attention to Annexure - A to indicate that land in question came to be owned by petitioner and said land was subject matter of agreement dated 28.6.2010 i.e. the agreement to sale executed Page 3 of 10 HC-NIC Page 3 of 10 Created On Sat Sep 16 06:36:03 IST 2017 C/SCA/15872/2016 JUDGMENT indicating therein that only Rs.75,000/- were paid and remaining Rs.2 lakh were to be paid before the sale document is executed. The said agreement to sale, as could be seen from the unnumbered para 1 and 2 on page-43, internal page-3, contains unequivocally declaration and agreement between the parties that possession of the property was not parted with and same would be tendered only after receiving the complete consideration in respect thereof.
6. The counsel for the petitioner on the strength of said agreement to sale submitted that these paras and declaration in the agreement to sale would clearly indicate that so far as possession is concerned, it had not been parted with. The counsel for the petitioner invited this Court's attention to one more agreement of even date i.e. 28.6.2010, which appears to be lease agreement of 99 years in favour of respondent no. 5 but therein also, on page-39, running page 3 of the document in unnumbered para-5, it is clearly mentioned that possession is not parted with in favour of respondent no. 5.
7. It was submitted by counsel for the petitioner on the strength of this declaration and understanding as recorded in these two documents that the so called possession or so called claim of compensation sought to be made on behalf of respondent no. 5 to pocketed the amount of compensation, is not supported by any documentary evidence whatsoever and therefore, the authority concerned should have appreciated this aspect before parting with amount of compensation in favour of respondent no. 5.
8. Learned counsel appearing for petitioner further invited Court's attention to the provisions of amended Railways Act, which are the provisions made in respect of acquisition of property and land in Page 4 of 10 HC-NIC Page 4 of 10 Created On Sat Sep 16 06:36:03 IST 2017 C/SCA/15872/2016 JUDGMENT terms thereof and disbursement of the compensation after the compensation is made and submitted that in terms of Section 20H, it was bounden duty casted upon the concerned authority to refer the matter to the competent civil court in respect of compensation amount as he had no right, authority or competence to part with compensation money to respondent no. 5 when there was a serious dispute raised qua entitlement of compensation.
9. Learned counsel for the petitioner invited this Court's attention to affidavit-in-reply and appended documents to support her contention that in the affidavit-in-reply also, it is clearly emerging that land record also contains the name of petitioner as the owner of land and merely on the strength of some ill-founded claim, the respondent no. 5 could not have been given the award money in light of provisions of Section 20H of the Act.
10.Learned counsel for the petitioner invited this Court's attention to the fact that authorities have obtained undertaking from respondent no. 5 to abide by the final outcome of the proceedings in the civil Court if any. In that view of the matter, the petitioner is successful in establishing before this Court that respondent no. 5 did not have any right whatsoever to receive compensation nor was the authority justified in parting with the compensation amount, the respondent no. 5 should have voluntarily deposited this amount either in the Court or return the same to the railway authority.
11. Learned counsel for the petitioner invited Court's attention to one more undertaking at page-73 and submitted that in light thereof, now it is not open to respondent no. 5 to plead any inability to refund the money.
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12.Learned AGP appearing for respondent nos. 1 to 4 could not resist the contention that provision of Section 20H of the Act, makes it incumbent upon the concerned officer to refer the matter to competent Court in case of any dispute qua the entitlement to receive the compensation amount. However, he submitted that respondent nos. 1 to 4 have acted upon the report submitted by concerned Mamlatdar as it was inquired with Mamlatdar to verify as to possession of land and it appears from the record that Mamlatdar concerned drew the necessary panchnama and reported and recorded that possession was with respondent no. 5 on the strength of agreement to sale and lease deed and therefore the railway authority cannot be said to be liable in any manner and it is the competent officer, who has parted with money i.e. the respondent no. 2.
13.Learned counsel appearing for respondent no. 5 invited Court's attention to the affidavit-in-reply filed and annexures annexed thereto and proceedings undertaken by Mamlatdar and also the order of competent authority for inquiring into the land in question, for the purpose of parting with possession. The counsel for respondent no. 5 contended that Section 2(29)(A) of the Act provides for definition of 'interested person' and he emphatically submitted that reading of said definition in light of two documents placed on record, would clearly indicate that the respondent no. 5 cannot be brushed aside as he is 'interested person' and when the Mamlatdar has on the strength of panchanama recorded that the respondent no. 5 was in possession of land, the payment made to him, cannot be said to be illegal in any manner.
14.The counsel for respondent no. 5 submitted that the respondent no. 5 has already filed Special Civil Suit No. 14 of 2014 in the Court of Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Sep 16 06:36:03 IST 2017 C/SCA/15872/2016 JUDGMENT 4th Additional Senior Civil Judge, Valsad seeking Specific Performance and he has also filed undertaking before the authority to refund the amount without any dispute in future and in that view of the matter, at this stage, this Court may not direct respondent no. 5 for refunding the amount in question.
15.This Court has heard learned counsels for the parties and perused the documents. Learned counsel for the petitioner appears to be justified in contending that in light of unequivocal provisions in terms of Section 20H, when the authority i.e. respondent no. 2 was faced with rival claims, then, the said authority did not have any other option but to refer the matter to the Civil Court in terms of said provisions. For ready reference, same is reproduced herebelow.
"Section 20H : (1) The amount determined under section 20F shall be deposited by the Central Government, in such manner as may be prescribed by that Government, with the competent authority before taking possession of the land.
(2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto.
(3) Where several persons claim to be interested in the amount deposited under sub-
section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each Page 7 of 10 HC-NIC Page 7 of 10 Created On Sat Sep 16 06:36:03 IST 2017 C/SCA/15872/2016 JUDGMENT of them.
(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.
(5) Where the amount determined under section 20F by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent. per annum on such excess amount from the date of taking possession under section 20-I till the date of actual deposit thereof.
(6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government, in such manner as may be prescribed by that Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit.
16. In light of this provision, the claim of petitioner as well as respondent no. 5 for receiving the amount of compensation was required to be adjudicated and accordingly, the same deserves to be Page 8 of 10 HC-NIC Page 8 of 10 Created On Sat Sep 16 06:36:03 IST 2017 C/SCA/15872/2016 JUDGMENT referred to the Competent Civil Court for adjudication.
17.Learned counsel for petitioner also appears to be justified in contending that respondent no. 2 could not have arrogated powers and functions of the Civil Court for deciding the matter, more particularly, on the strength of panchnama, which does not bear even the date on which date it was drawn. We have also perused the panchnama but we restrain ourselves from commenting upon it as we propose to direct the respondent authority to refer the matter to competent Civil Court so far as compensation aspect is concerned. But suffice it to say at this stage that the competent authority was unjustified at all in embarking upon the truncated adjudication and relying upon the agreement to sale and agreement to lease the property, ignoring the clear condition mentioned thereunder qua possession and proceeded with parting with money to respondent no. 5 and therefore, to that extent, we are of the clear opinion that the order impugned in this petition dated 25.5.2015 deserves to be quashed and set aside and is accordingly quashed and set aside. The respondents shall also call upon respondent no. 5 to act upon his undertaking and refund the amount with the authority and same shall be governed as per order that may be passed once the matter is referred to the competent civil court for adjudication in terms of Section 20H of the Act.
18.In view of the aforesaid observations, the petition is required to be allowed and is allowed. The following directions are issued :
(i) The respondent no. 2 shall enforce the undertaking filed by respondent no. 5 and recover the amount from him and deposit the same in a national bank initially for a period of 1 (one) year and in case if the dispute that is going to be referred to the authority is not Page 9 of 10 HC-NIC Page 9 of 10 Created On Sat Sep 16 06:36:03 IST 2017 C/SCA/15872/2016 JUDGMENT decided within one year, then, for further period of 1 (one) year.
(ii)The respondent no. 2 is directed to refer the dispute between the petitioner and respondent no. 5 to the competent Civil Court in terms of Section 20H within period of 15 days from the date of receipt of writ of order and the Competent Civil Court shall decide the same as expeditiously as possible.
19.The rule is made absolute to aforesaid extent. There shall be no order as to costs.
(S.R.BRAHMBHATT, J.) (A.G.URAIZEE,J) pallav Page 10 of 10 HC-NIC Page 10 of 10 Created On Sat Sep 16 06:36:03 IST 2017