Gujarat High Court
Kantilal Joitaram Patel vs State Of Gujarat on 11 March, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/14933/2023 ORDER DATED: 11/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14933 of 2023
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KANTILAL JOITARAM PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. YATIN OZA, SR. ADV. WITH MS SRUSHTI A THULA(5014) for the
Petitioner(s) No. 1,2,2.1,2.2,2.3,3,4,5,6,7
for the Respondent(s) No. 6,7
MS. HETAL PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4,5,8
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 11/03/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) This is a wholly misconceived petition filed by the power of attorney holder of the erstwhile owners of Survey No. 1091 of area admeasuring 4.29 acres, whose land had been acquired for the purpose of Gandhinagar Capital City Project as early as in the year 1965.
2. The present writ petition is filed with the prayer that a writ in the nature of Mandamus be issued directing the State Government to treat the land bearing Survey No. 1091 (1.02 Acres) situated at village Pethapur, Taluka-District Gandhinagar as a freehold land of the absolute ownership Page 1 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined of the petitioners herein, as the said plot has not been acquired by the State under any law prevalent and with the contention that the petitioners are in lawful and legal ownership and possession of the land-in-question and have rights to enjoy uninterrupted/undisturbed possession of the same. The prayer has further been made to restrain the respondents from interfering in the possession of the petitioners over the land-in-question. The petitioners have joined the State through the Secretary, Road and Building Department and the State authorities such as the Secretary, Revenue Department, Special Land Acquisition Officer, Gandhinagar, the Collector, Gandhinagar and Gandhinagar Urban and Development Authority as also Gandhinagar Municipal Corporation as the respondents, but there is no clarity in the petition as to who was disturbing the possession of the petitioner at the time of institution of the writ petition.
3. The contention in the writ petition relevant to be noted herein is that the petitioners are the owners and in possession of Survey No. 1091 admeasuring area 1.02 acres, which land has never been acquired as per the statement made in the writ petition and the further contention is that till date, the land-in-question is in the ownership and possession of the petitioners and they are enjoying uninterpreted and peaceful possession of area 1.02 acres of Survey No. 1091 since the year 1952. It is stated in Page 2 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined paragraph No. 3.2 of the writ petition that all of a sudden, the petitioners came to know that Entry No. 1174/75 and K.J.P.S.R. 1174/75 dated 13.08.1975 had been entered into the revenue records, whereby the name of the Executive Engineer has been incorporated in respect of the land-in- question. A vague assertion has been made in para No. 3.2 of the writ petition that the said fact came to the notice and knowledge of the petitioners when they requested for copy of the revenue records for putting in their own names in the records. There is no clarity as to why and when the petitioners, who as per their claim are the owners in possession of the land-in-question would require to make enquiry for entering their names in the revenue records. No date of knowledge or notice of the entry dated 13.8.1975 has been indicated in the writ petition.
3.1 A vague assertion has been made in the para No. 3.3 of the writ petition that the land-in-question has never been acquired by the State nor the petitioners have received any notice for acquisition of the said land-in-question and it was only 3.26 acres of Survey No. 1091 which was duly acquired by the State. It was contended that the rest of 1.02 acres has been in the ownership and possession of the petitioners since the year 1953/1954.
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4. There is reference of various communications made by the petitioners with the Executive Engineers, which too in turn made communication with the Special Land Acquisition Officer in the matter of award/acquisition/release of land-in-question namely Survey No. 1091 area 1.02 Acres. Attention of the court is invited to page '51' of the paper-book, which is a communication dated 23.10.2013 made by the Executive Engineer to the petitioner No.1 namely Kantibhai Joitaram Patel, wherein there is a statement that no award has been made with respect to Survey No. 1091 area 1.02 Acres. A further communication dated 1.9.2014 by the Executive Engineer to the Special Land Acquisition Officer has been placed before us to assert that the land-in-question namely Survey No. 1091 area 1.02 Acres had never been acquired.
5. After presentation of the writ petition, a draft amendment dated 12.09.2023 had been filed seeking to bring on record the copy of 7/12 extract and the acquisition award as Annexure 'A' and 'B' to the writ petition. Annexure-B sought to be placed on record by means of the amendment is a consent award dated 30th November, 1969 in LAQ/ 14/434.Part(3) of the village-in-question.
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6. On 14.9.2023, the learned Assistant Government Pleader Ms. Hetal Patel provided the copies of the awards passed with respect to the land-in- question, for the total area 4.29 Acres of Survey No. 1091 to assert that the award was declared in two stages. The first award for 3 Acres and 26 Gunthas was declared on 30.11.1969 and the second award for 1 Acre and 2 Gunthas was declared on 25.9.1972. Both the awards were consent awards passed under section 11(2) of the Land Acquisition Act. When the copies of the consent awards dated 25.9.1972 were placed before us, on the prayer of the learned counsel for the petitioners to complete the instructions, the matter was adjourned.
7. By way of the order dated 16.2.2024, we require the learned AGP appearing for the State to file counter affidavit giving para-wise reply to the writ petition, as also to the draft amendment dated 8.2.2023 placed before us seeking for quashing of the consent award dated 25.9.1972 with the contention that the land-in-question being Survey No. 1091 (1.02 Acres) had never been acquired. We have noted in the order dated 16.2.2024 that it was urged before us that the consent award dated 25.09.1972 was to be quashed as there was no acquisition by publication of the notifications under Sections 4 and 6 of the Land Acquisition Act and, therefore, there was no occasion for passing of the consent award.
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8. We may note the averments made in the draft amendment dated 8.2.2023 which has not been allowed by us as yet, it is stated therein that on 14.9.2023, when during the course of hearing, the respondent had served the copies of the awards passed in Land Acquisition proceedings in respect of Survey No. 1091 dated 30.11.1969 and 25.9.1972 to claim that they have acquired the land bearing survey No. 1091 admeasuring area 4.29 Acres; the first parcel of land (3.26 Acres) in 1969 and the rest of the land (1.2 Acres) in 1972, the factum of passing of the award, came to the knowledge of the petitioners. It is contended that the petitioners have never been supplied with the award dated 25.09.1972. It is further contended that both the acquisition awards are proto-type and the State has not even bothered to come out with the notifications issued under Sections 4 and 6 of the Land Acquisition Act and they cannot claim to have acquired survey No. 1091 (area 1.02 Acres) in the year 1972 pursuant to the same notification, which were to be for acquisition of the land admeasuring 3.26 Acres of Survey No. 1091.
8.1 It is contended that in both the awards, the date of taking possession are different, i.e. 21.5.1966 and 20.01.1996 though the panchnama depicts that the possession of entire survey No. 1091 area Page 6 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined 4.29 Acres was taken. It was contended that there was no occasion for passing of the consent award dated 25.09.1972 without issuance of fresh acquisition notifications under Sections 4 and 6 of the Land Acquisition Act after a period of three years, more so, when urgency clause was invoked at the time of possession of land-in-question. An assertion has been made that there has been no signature of the petitioners over the consent awards and that the respondents did not have right to take possession of the land-in-question, which has never been acquired by adopting due process of law. Prayer has been made in the draft amendment for quashing of the consent award dated 25.9.1972 with reference to Survey No. 1091 area 1.02 Acres on the above noted contentions.
9. In the counter affidavit filed on behalf of the respondents, categorical reply has been given to the averments made in the writ petition and the draft amendment. Before giving para-wise reply to the contents of the writ petition, it has been brought on record that the notifications under Sections 4 and 6 of the Land Acquisition Act to acquire area of Survey No. 1091 admeasuring 4.29 Acres were published on 25.3.1965 and 5.8.1965; respectively. Notice under section 9(1) was issued stating the particulars of the lands so needed and requiring the Page 7 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined presence of the interested in the land was also issued on 11.8.1965. It is categorically stated in paragraph No. 6.4 of the counter affidavit that the petitioners herein had submitted his statement of claim signed by the petitioner No.1. It has been demonstrated before us from the original record that the petitioner No.1 herein had submitted his claim signed by himself through his advocate namely Mahesh Dave alongwith vakalatnama dated 4.10.1965 under section 9(2) of the Land Acquisition Act, 1894. A copy of the statement of claim alngwith the Vakalatnama is appended as Annexure R/4 to the affidavit of the respondents and has been placed before us from the original record of the acquisition in question. It is further contended that award was declared in parts from Part-1 to Part-14 and the last Part-14 dated 25.9.1972 covered the compensation for the land admeasuring 1.2.80 Acres of Survey No. 1091. Panchnama was further drawn on 21.5.1966 for taking possession of the entire area admeasuring 4.29 Acres of Survey No. 1091. Entry No. 3211 was mutated in Village Form No. 6 on 27.9.1966, which has also been brought on record. After declaration of the award dated 25.9.1972, the Revenue Entry No. 6322 was recorded in DILR, Ahmedabad KJP MR 11/74/75 on dated 13.7.1975 for the land admeasuring 1.02 acres of Survey No. 1091 and the same was certified on 21.9.1984.
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10. While giving parawise reply to the contents of the writ petition, the averments in the writ petition that there was no acquisition of land-in- question has been specifically denied and the material brought on record has been reiterated to assert that the petitioners did represent their statement of claim signed by the petitioner No.1 through advocate and the contention in the writ petition that the land admeasuring 1.2.80 Acres of survey No. 1091 was never acquired, nor compensation was paid for the same, was incorrect. It was categorically stated that after unexplained delay of 38 years, the petitioners had initiated proceedings to address their grievance on 19.10.2013 for the first time with respect to the entry dated 13.7.1975. The whole contention of the petitioners to challenge the acquisition proceedings of Survey No. 1091 area 1.2.80 Acres was misconcieved. The copies of the documents all pertaining to acquisition proceedings such as acquisition notification, possession memo, the statement of claim filed by the petitioner under section 9(2) of the Land Acquisition Act have been brought on record.
11. It is pertinent to note that in the affidavit-in-rejoinder in reply to the affidavit of the respondents, there is no categorical denial to the averments made in the affidavit as noted hereinabove. No para-wise reply has been given in rejoinder. The assertion in paragraph No. 3 of the Page 9 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined rejoinder is that the petitioner is not filing parawise reply to the reply-affidavit filed by the respondent State. However, everything as stated by the respondents in the affidavit is hereby denied and specific non-denial of any fact or submission may not be construed as admission on the part of the petitioner. The petitioner reserves liberty to file additional affidavit, if and when necessary. We deprecate this practice of filling affidavit in rejoinder half heatedly and not giving any parawise reply to the specific contents of the counter affidavit, which is filed putting on record the entire facts pertaining to the acquisition of the land- in-question. The assertion of the petitioner in the affidavit in para 3 of the affidavit about the denial to the contents of the reply affidavit filed on behalf of the respondent State is a vague denial and has to be treated as admission to the averments made in the affidavit of the State. 11.1 We may further record that in further paragraphs of the rejoinder affidavit, the averments made in the writ petition and the draft amendment, are sought to be reiterated that inspite of various attempts and communications with the State and the documents requested under the RTI application, the petitioner was never supplied with the land acquisition award of part 14 in the year 1972, which had been supplied by the learned Government Pleader during the course of hearing of the writ Page 10 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined petition on 14.9.2023. It is further sought to be stated that the documents as produced by the State make it clear that 1972 award (part 14) had been passed without adopting due process of law. The contention is that the notification under Section 4 of the Act was published covering the entire land and thereafter under Section 17, the whole land was covered, thereafter declaration under Section 6 of the Act also covers the entire land, but the land acquisition is only said to be completed when the award is passed and the payment of compensation under Section 11 is made. It is contended that if the compensation under Section 11 is paid qua a portion of the land-in-question, then the acquisition stands completed as all the procedures under Sections 4, 6, 9 and 17 stands merged under award passed under the Section 11 of the Act and the remainder land is deemed to have been out of the acquisition. It is further contended that in the present case, the award was passed under Section 11 for the land admeasuring 3.26 Acres only, and the remaining land is deemed to be not acquired. It is submitted that to further acquire the remaining portion of the land, the fresh declaration under Sections 4 and 6 was required to be made and it was mandatory for the respondents to pay compensation to the petitioner within the time. Various avermets have been made in regard to the validity of the notifications under Sections 4 and 6 and making of award with the assertion that since no award was passed with Page 11 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined regard to the remaining area of 1.02 Acres, the acquisition of the said area by Sections 4 and 6 notifications issued in the year 1965, would be of no consequence.
12. Having noted the above, we find inherent fallacy in the submission of the learned senior counsel for the petitioners and the arguments of the learned senior counsel for the petitioners that since no consent award was passed in the year 1972 and there was delay in making the award, even if it is accepted that the acquisition was made in the year 1966, it was without undertaking any acquisition proceedings under the law prevalent then with respect to the land-in-question namely Survey No. 1091 area 1.02 Acres and further that fresh notifications have not been issued for acquisition of the said plot.
13. From the facts brought before us by way of the counter affidavit and the original record placed by the learned Assistant Government Pleader, it is more than evident that the acquisition of the entire land for Survey No. 1091 area 4.29 Acres was completed as early as in the year 1966 with the taking over the possession of the entire area by way of possession memo dated 21.4.1966.
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14. We may record that the entire petition and the rejoinder is silent about any proceedings having been undertaken by the petitioners to challenge the acquisition under Sections 4 and 6 or taking of the possession by drawing of possessioan memo dated 21.4.1966. Rather it has been brought before us that once of the petitioner herein namely petitioner No.1 filed statement of claim alongwith the vakalatnama on 4.10.1965 under Section 9(2) of the Land Acquisition Act, 1984. Statement made in this regard in paragraph No. '6.04' of the counter affidavit has not been denied. It cannot be accepted that the petitioners were not aware of the acquisition proceedings including drawing of panchnama for the entire land of Survey No. 1091 area 4.29 Acres. 14.1 It seems that the award was declared in two parts and part declaration of the award of the acquired land, cannot be challenged as per the settled position of law that award in more than one stage can be declared. It seems that taking benefits of the said fact by concealment of material facts, the petition has been filed in the year 2023 based on certain communications made by the petitioners with the Executive Engineer of the concerned department in the year 2010 and 2011. It seems that some communications were also made with the office of the Special Land Acquisition Officer and even to the office of the Chief Page 13 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined Secretary to agitate that the land-in-question bearing Survey No. 1091 area 1.02 Acres had never been acquired, nor compensation for the said land has been paid. All these communications were started with the RTI application filed by the petitioners, as stated in the rejoinder affidavit. However, the copy of the RTI application has not been brought on record. The reply to the said application sent by the Executive Engineer, therefore, cannot be looked into.
15. We may further note that it has been pointed out by the learned AGP from the documents appended with the writ petition at page 42/A which is Entry dated 27.9.1966 in the name of the Executive Engineer for Survey No. 1091 area 4-29 and mentioning the date of taking over possession as 21.5.1966. The communication sent by the Special Land Acquisition Officer, Gandhinagar on the issues raised by the petitioners in the year 2016 is also part of the record of the petition, which is at page No. '86' of the paper book. A perusal of the said document at page No. '87' indicates that there is categorical reference to two awards dated
30..11.1969 namely LAQ/14/434 Part-III for area of 3-26-8-0 of the Survey No. 1091 and award dated 25.9.1972 in LAQ No. 14/4/434 Part-14 area 1-2-8-0 of Survey No. 1091. As the said document has been filed by the petitioners themselves alongwith the writ petition, the Page 14 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined averments made in the draft amendment cannot be accepted that the petitioners have come to know about the consent award dated 25.9.1972 only on the presentation of the said award before this court on 14.9.2023. The said contention is found to be false.
16. From the averments made in the writ petition and the rejoinder affidavit,, it is evident that the petitioners tried to give a false impression to the Court that the acquisition proceedings with respect to Survey No. 1091 area 1.02 Acres had never been undertaken and the respondents cannot take possession of the said plot as no acquisition was undertaken or award has been passed. The fact remains that the petitioners cannot deny the factum of making of the consent award dated 25.09.1972. They have tried to twist the correct facts and have not come with the clean hands before the Court of law.
17. Having noted the manner in which the pleadings have been made in the writ petition as also in the rejoinder to twist the correct facts, we find that the averments made in the affidavit filed by the petitioner both in the writ petition and the rejoinder are an effort to misguide the Court and to take undue advantage by misrepresentation of the correct facts. The prayer of the learned senior counsel that an inquiry be made with Page 15 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined regard to the signature on the consent award of the year 1972 or the agreement or the manner in which the consent award was passed, cannot be granted after such a long period, that too when the writ petition has been filed with distorted facts in order to misguide the court. We therefore, do not find any reason to grant any indulgence to the petitioners.
18. It may not be out of place to mention that the present petition has been filed through the power-of-attorney holder namely Rahul Kanubhai Desai, with the statement in the affidavit that all the averments stated in para Nos. '1' to '7' in the memo of the petition are true to his knowledge. We fail to understand as to how the facts stated in para Nos. '1' to '7' of the writ petition with regard to the acquisition of the land-in-question could be in the personal knowledge of third person, who is a power-of- attorney holder of the original owner. In the same manner, the averments made in the rejoinder affidavit, more particular in para Nos. '1 to '17' could be said to be in the best knowledge of the deponent namely Rahul Kanubhai Desai, who is power-of-attorney holder of the petitioners herein.
19. In view of the above and even though sufficient time having been Page 16 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024 NEUTRAL CITATION C/SCA/14933/2023 ORDER DATED: 11/03/2024 undefined granted to the petitioners, they have not filed further affidavit with correct and complete facts and further that they have not come before the court with clean hands, the petition deserves to be dismissed with cost. We accordingly dismiss the petition with costs of Rs. 1,00,000/-, which shall be deposited by the petitioners within a period of three weeks before the Registrar General of this court.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) C.M. JOSHI/pps Page 17 of 17 Downloaded on : Fri Mar 22 21:12:59 IST 2024