Gujarat High Court
Legal Heirs Of Decd. Gordhan Mulji ... vs State Of Gujarat & 2 on 28 June, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/6457/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6457 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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LEGAL HEIRS OF DECD. GORDHAN MULJI TOGADIYA & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 3
SHASHVATA U SHUKLA, ADVOCATE for the Petitioner(s) No. 1 3
MR. HARDIK VORA ASST. GOVERNMENT PLEADER for the Respondent(s) No.
1 3
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 28/06/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. By way of this petition under Article 226 of the Constitution of India, the petitioners heirs and legal representatives of original land owners have prayed for an appropriate writ, direction and order to hold and declare that the land acquisition proceedings, which had culminated into award dated 4.4.1988 in LAQ No. 47 of 1985 for the lands acquired Page 1 of 12 HC-NIC Page 1 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT are lapsed under the provisions of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "Act, 2013").
2.0. The facts leading to the present petition in nutshell are as under:
2.1. That the lands in question came to be acquired under the provisions of Land Acquisition Act, 1894 in the year 198586 for Karmal Irrigation Scheme. The notification under Section 4 of the Act came to be issued and published on 30.01.1986. That thereafter, notification under Section 6 of the Act came to be published on 13.06.1986. That thereafter, after following due procedure as required under the Land Acquisition Act, the Special Land Acquisition Officer declared the award under Section 11 of the Act being LAQ No. 47 of 1985 on 4.4.1988. That the possession of the lands in question was taken over by the appropriate authority in the year 1988 itself. That the original land owners were paid the compensation for the acquired lands as determined as per the award declared under Section 11 of the Act. It appears that thereafter as the lands in question were coming between HFL and FSL of the Irrigation Project and the lands in question were on the side of the canal, it was required to be kept open and in the monsoon season the water was coming on the lands in question and therefore, the land owners requested to give the land to them for cultivation on one year basis. That the original land owners also requested to regrant the land in the year 2012, however the same came to be rejected in the year 2012 itself. However, in the year 2013, the request of the petitioner to give the land in question to them for cultivation came to be accepted as per the policy of the State Government and consequently they were permitted to cultivate the land in question. Thereafter, the petitioners have preferred present Special Page 2 of 12 HC-NIC Page 2 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs contending inter alia that as they are in possession of the land in question considering subsection(2) of Section 24 of the Act, 2013, the land acquisition proceedings have lapsed. Therefore, the case on behalf of the petitioner is solely on the basis of their claim that they are in possession of the lands in question and they are cultivating the same and on no other grounds.
3.0. Shri Majmudar, learned advocate for the petitioners has vehemently submitted that as the petitioners are in possession of the land in question as on 1.1.2014 i.e. as on the date on which the Act, 2013 came into force and that the petitioners original land owners were cultivating the same and are in possession of the land in question even today and are cultivating the same, in view of subsection (2) of Section 24 of Act, 2013, land acquisition proceedings with respect to the land in question have lapsed and deemed to have been lapsed. In support of his above submission, Shri Majmudar, learned advocate for the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Delhi Development Authority vs. Sukhbir Singh and Ors reported in (2016) 16 SCC 258. Shri Majumar, learned advocate for the petitioner has also heavily relied upon decision of the Division Bench dated 17.02.2016 in the case of Becharbhai Jadabhai Panara and ors vs. State of Gujarat & Ors rendered in Special Civil Application No.18642 of 2015 as well as another decision of the Division Bench dated 16.10.2015 in the case of Muktaben Maganbhai and ors vs. State of Gujarat & ors rendered in Special Civil Application No. 7243 of 2014 and others allied matters.
Making above submissions and relying upon the above decisions, it is requested to admit / allow the present petition.
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C/SCA/6457/2017 JUDGMENT
4.0. Present petition is vehemently opposed by Shri Hardik Vora, learned Assistant Government Pleader appearing on behalf of the respondent. Affidavit in reply is filed on behalf of the respondent no.3 opposing the present petition. It is submitted that the lands in question have been acquired in the year 1985. It is submitted that even an award for the acquired lands has been declared on 4.4.1988 and the respective petitioners original land owners have been paid the compensation immediately thereafter. It is submitted that the possession of the acquired lands in question have been taken over on 27.02.1986, by the Deputy Engineer, Karmal Main Water, Gondal. It is submitted that therefore, the possession of the acquired land in question was already taken over by the Department under the provision of the Land Acquisition Act, 1894. It is submitted that therefore, once the compensation for the acquired lands was already paid and the possession was taken over from the original land owner, considering Section 16 of the Land Acquisition Act, 1894, the acquired land in question absolutely vested in the Government / acquiring body. It is submitted that therefore, in such a situation subsection(2) of Section 24 of the Act, 2013 shall not be applicable and it cannot be said that the land acquisition proceedings have lapsed.
4.1. It is further submitted by Shri Vora, learned AGP that as the lands in question were going for submerging in the irrigation project in question and as the lands in question were just adjacent to the irrigation project / canal, the same were required to be acquired and which came to be acquired and the compensation was paid and the possession was taken over by the Government and/ or same was handed over by the original land owners to the State Government. It is submitted that however for some time in the year there is no possibility of coming water on the land in question and therefore, a policy decision was taken Page 4 of 12 HC-NIC Page 4 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT by the State Government vide resolution dated 22.01.1997 to give shallow land around the irrigation scheme to the previous owner of the land for the limited purpose of cultivation i.e. when the land is open and available. Therefore, it was decided to given the land for cultivation on one year basis and accordingly the petitioners were permitted to cultivate the lands in question on one year basis. It is submitted that therefore, in the facts and circumstances of the case subsection (2) of Section 24 of the Act, 2013 shall not be applicable.
4.2. It is further submitted by Shri Vora, learned AGP that even the petitioners earlier approached the Executive Engineer, Rajkot vide application / representations dated 21.01.2011 seeking release of the lands and to regrant the land to the original owners, however the same came to be rejected by the Collector, Rajkot vide order dated 06.06.2012. It is submitted that thereafter taking advantage of the scheme of the Government and the Government Resolution dated 22.01.1997 and taking advantage of the fact that the petitioners are permitted to cultivate the land on one year basis when the land is open and there is no water logging, the petitioners have preferred present Special Civil Application only with a view to get benefit under sub section(2) of Section 24 of the Act, 2013. It is submitted that therefore, in the facts and circumstances of the case, more particularly, when the possession of the acquired lands in question was already taken over way back in the year 1988, in fact the original owners themselves handover the possession and even accepted the compensation, subsection(2) of Section 24 of the Act, 2013 shall not be applicable. It is submitted that subsection(2) of Section 24 of the Act, 2013 shall be applicable only in a case where after the award is declared, possession of the acquired land has not been taken over by the acquiring body at all. It is submitted that subsection(2) of Section 24 of the Act, 2013 shall not be applicable to Page 5 of 12 HC-NIC Page 5 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT the fact situation like in the present petition.
Making above submissions, it is requested to dismiss the present petition.
5.0. In reply to the aforesaid, Shri Majmudar, learned advocate for the petitioners has submitted that in the identical facts and circumstances, when the possession of the lands in question were handed over and / or lands were continued to be retained by the original lands owners for cultivation, the Division Bench of this in the case of Muktaben Maganbhai (supra) applying subsection(2) of Section 24 of the Act, 2013, has declared acquisition proceedings lapsed.
5.1. To the aforesaid, Shri Jayswal, learned AGP for the State has stated at the bar that against the decision of the Division Bench of this Court in the case of Muktaben Maganbhai (supra), State has preferred SLP before the Hon'ble Supreme Court and same is pending before the Hon'ble Supreme Court. It is submitted that even otherwise the said decision shall not be applicable to the facts of the case on hand as it appears from the said judgment that earlier the possession of the acquired land was not taken over at all by the State Government and / or handed over to the State Government by the original land owners, as is there in the present case.
6.0. Heard the learned advocates for the respective parties at length. Present petition has been preferred by the original land owners for an appropriate writ, direction and order to declare the acquisition proceedings with respect to the lands in question lapsed in view of sub section(2) of Section 24 of the Act, 2013. The land acquisition proceedings with respect to the lands in question are sought to be declared lapsed on the ground that as on 1.1.2014 and thereafter also Page 6 of 12 HC-NIC Page 6 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT the respective petitioners original land owners are in possession of the land in question and that they are cultivating the same. Therefore, the sole contention on behalf of the petitioners is that as the respective petitioners are / were in possession of the lands in question as on 1.1.2014 and that they are cultivating the acquired lands in question, subsection(2) of Section 24 of the Act, 2013 shall be applicable.
7.1. However, from the affidavit in reply and the stand taken by the Government which has not been disputed as such the possession of the lands in question was handed over by the original land owners to Deputy Engineer, Karmal Main Water, Gondal and they also executed the Kararnama/ Kabulatnama. Therefore, as such the possession of the acquired lands in question was already taken over by the Government while acquiring land under the provisions of Land Acquisition Act, 1894. However, as the lands in question was acquired as the same was likely to be submerged in the canal irrigation project / scheme, the lands came to be acquired. However, thereafter policy decision has been taken by the Government vide resolution dated 22.01.1997 to permit the original land owners to cultivate the lands / shallow land as and when become open and accordingly under the aforesaid Government Resolution and the scheme of the Government, the original land owners are permitted to cultivate the land on one year basis as and when land become open. Under the circumstances and in such a situation, we are of the opinion that subsection(2) of Section 24 of the Act, 2013 shall not be applicable at all. As observed by the Hon'ble Supreme Court in the case of Delhi Development Authority (supra) "the picture that emerges on reading of Section 24(2) of Act, 2013 that State has no business to expropriate from a citizen his property if an award has been made and the necessary steps to complete acquisition have not been taken for a period of five years or more". It is observed that these steps include taking of physical Page 7 of 12 HC-NIC Page 7 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT possession of land and payment of compensation. It is observed that the legislature is in effect telling the executive is that they ought to have put their house in order and completed the acquisition proceedings within a reasonable time after pronouncement of award and this may happen either because physical possession of the land has not been taken or because compensation has not been paid within the said period of five years. Thus, considering the aforesaid object and purpose of sub section(2) of Section 24 of the Act, 2013 and observation made by the Hon'ble Supreme Court referred to herein above, subsection (2) of Section 24 of the Act, 2013 shall be applicable in a case where no steps are taken to complete the acquisition even after the award has been declared i.e. compensation has not been paid or possession has not been taken over. In the present case, as observed herein above, as such possession of the land in question was already taken over as far as back in the year 1988 and as such original land owners themselves handed over possession to the State Government. Therefore, as such in the year 1987/1988 itself the acquisition proceedings were completed. Under the circumstances and in such a situation, subsection(2) of Section 24 of the Act, 2013 shall not be applicable. Merely because, subsequently the original land owners are permitted to cultivate their lands for which the acquisition proceedings were already completed much earlier, either under scheme of the Government and / or Government resolution and that too as and when land become open and they are permitted to cultivate the land on one year basis, subsection(2) of Section 24 of the Act, 2013 shall not be attracted. Otherwise, the purpose and object of subsection(2) of Section 24 shall be frustrated. If the submission on behalf of the petitioners is accepted, in that case, it would run contrary to the object and purpose of enacting Section 24(2) of the Act, 2013. Under the circumstances and in the facts and circumstances of the case, when the possession of the land in question was already taken over Page 8 of 12 HC-NIC Page 8 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT much earlier and the land acquisition proceedings were completed prior to Act, 2013 came into force, merely because thereafter for whatever reasons the original land owners are permitted to cultivate the land on one year basis and that too as and when lands become open, the land acquisition proceedings cannot be said to have been lapsed as per sub section(2) of Section 24 of the Act, 2013. As observed by the Hon'ble Supreme Court in the case of Delhi Development Authority (supra), sub section(2) of Section 24 of the Act shall be applicable in a case where if award has been made, necessary steps to complete the acquisition has not been taken for period of five years or more. As observed herein above, in the present case, the land acquisition proceedings have been completed long back. Under the circumstances and in the facts and circumstances of the case, subsection(2) of Section 24 of the Act, 2013 shall not be applicable and / or attracted.
7.2. In the case of Sukhbir Singh and Ors (supra), the Hon'ble Supreme Court has an occasioned to considered the scheme relating to possession of land and payment of compensation under the Land Acquisition Act, 1894. In the aforesaid decision, the Hon'ble Supreme Court has as such considered the other decisions of the Hon'ble Supreme Court referred in para 9.1 to 9.3 and thereafter in para 27, the Hon'ble Supreme Court has observed and held as under:
27. It remains to deal with one submission of Shri A.K. Sanghi. According to Shri Sanghi, physical possession has not been taken of the land in dispute.
We are afraid this may not be correct. The Panchnama dated 27th January, 2000 specifically records that possession of the land above stated was recovered and handed over to the representatives of theOffice of Land and Buildings. The Panchnama is also signed by all the necessary officers. This piece of land admittedly being open land is governed by the ratio of Raghbir Singh Sehrawat v. State of Haryana & Ors., (2012) 1 SCC 792 in which it has been held:
Page 9 of 12HC-NIC Page 9 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT "In Banda Development Authority v. Moti Lal Agarwal the Court referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] , Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212] , P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489] , NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ) 375] , Sita Ram Bhandar Society v. Govt. (NCT of Delhi) [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] and culled out the following propositions:(Banda Development Authority case "(i) No hardandfast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably Page 10 of 12 HC-NIC Page 10 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT presume that possession of the acquired land has been taken."
7.3. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, to the facts and circumstances of the case and as observed herein above, the land in question came to be acquired in the year 1985, the award came to be declared under Section 11 on 4.4.1988 and respective petitioners original land owners were paid the compensation immediately thereafter and even the possession of the land in question was already taken over on 27.02.1986 it can be said that on payment of full amount of compensation and taking over the possession, the lands in question absolutely vested in the State Government as per Section 16 of the Land Acquisition Act, 1894. Therefore, as such it can be said that in the year 1986/1988 proceedings under the Land Acquisition Act had completed and therefore, sub section (2) of Section 24 of the Act, 2015 shall not be applicable.
8.0. Now, so far as reliance placed upon the decision of the Division Bench of this Court in the case of Muktaben Maganbhai (supra) is concerned, it is reported that against the said decision SLP is pending before the Hon'ble Supreme Court. Even otherwise, considering the facts of the case in Muktaben Maganbhai (supra), it appears that nothing was stated / pointed before the Division Bench that acquisition proceedings had already been completed earlier and the possession of the land in question was taken over. In the present case, as observed herein above, the possession of the land in question was already taken over much earlier and as observed herein above, acquisition proceedings had already completed much earlier before the Act, 2013 came into force. Under the circumstances, decision of the Division Bench of this Court in the case of Muktaben Maganbhai (supra) shall not be applicable to the Page 11 of 12 HC-NIC Page 11 of 12 Created On Tue Aug 15 14:59:26 IST 2017 C/SCA/6457/2017 JUDGMENT facts of the case on hand.
9.0. In view of the above and for the reasons stated above, petition fails and same deserves to be dismissed and is accordingly dismissed. Notice discharged.
sd/ (M.R. SHAH, J.) sd/ (B.N. KARIA, J.) Kaushik Page 12 of 12 HC-NIC Page 12 of 12 Created On Tue Aug 15 14:59:26 IST 2017