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2010 DIGILAW 539 (GUJ)

Ravjiji Khodaji v. State Of Gujarat

2010-11-15

JAYANT PATEL, S.R.BRAHMBHATT

body2010
JUDGMENT JAYANT PATEL, J. 1. AS all the matters are inter- connected and common questions arise for consideration, they are being considered by the common judgement. 2. THE short facts of the case appear to be that as per the petitioners, their land came to be acquired for Narmada Project, Dholka Branch Canal of Sardar Sarovar Narmada Nigam Limited under the Land Acquisition Act (hereinafter referred to as the Act for short). The Notification under Section 4 of the Act was published on 19.9.1991 and the Notification under Section 6 of the Act was published on 27.2.1992. The award came to be passed by the Special Land Acquisition Officer on 7.2.1994 and the compensation was paid, but as per the petitioners, the same was accepted under protest. It appears that the petitioners did not raise the dispute for enhancement of the compensation, but other land owners, whose lands were acquired by the Special Land Acquisition Officer, raised the dispute under Section 18 of the Act, which came to be referred to the District Court for adjudication being Reference Case No.642/1996 to 651/1996 and allied matters. The Reference Court, vide order dated 17.6.1999 directed for payment of additional compensation of Rs.15/- per sq. mtrs., plus solatium and interest and it has not come on record as to whether the said award of the Reference Court for additional compensation was carried before this Court or not. It appears that all the petitioners made separate application under Section 28A of the Act for redetermination of the compensation mainly on two grounds; one was for payment of compensation at par with the award of the District Court and another was for enhancement of the solatium and interest, etc. as per the amended provisions of the Act. The said application of the petitioner under Section 28A of the Act came to be rejected vide order dated 30.11.2002. It is under these circumstances, the present petition before this Court. 3. WE have heard Mr. Gaurav Chudasma for Mr. Yatin Soni, learned Counsel for the petitioners and Mr. Patel, learned AGP for the State and its officers. 4. SECTION 28A of the Act, for ready reference, is reproduced as under : [28A. Re-determination of the amount of compensation on the basis of the award of the Court. 3. WE have heard Mr. Gaurav Chudasma for Mr. Yatin Soni, learned Counsel for the petitioners and Mr. Patel, learned AGP for the State and its officers. 4. SECTION 28A of the Act, for ready reference, is reproduced as under : [28A. Re-determination of the amount of compensation on the basis of the award of the Court. - (1) where in an award under this part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub- Section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-Section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The Collector shall, on receipt of an application under sub-Section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub-Section (2) may, by written application to the Collector, required that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18.]" As per the aforesaid provisions, right for redetermination of the compensation on the basis of the award of the Court is created in favour of the person, whose land is acquired. However, the requirement is that the application is to be made within a period of 90 days from the date of the award of the Court. However, the requirement is that the application is to be made within a period of 90 days from the date of the award of the Court. It is the case of the petitioners that they had made application within the period of 90 days, whereas the contention of the respondents appears to be that there was some interpolation in the record and the application could not be said to have been made within a period of 90 days. But the pertinent aspect is that as per the provisions of Sub-Section (2) of Section 28A of the Act, the Collector on receipt of the application under Sub- Section (1) of the Act has to conduct an inquiry after giving opportunity of hearing to be given for determination of the amount of compensation. Therefore, it appears to us that whether the applicant would be entitled for redetermination of the additional compensation as per the award of the Court or not is a separate aspect, but the question essentially required to be considered by this Court at this stage is whether a reasonable opportunity has been given by the Collector before taking decision or not. 5. THE perusal of the order passed by the District Collector, which is impugned in the present proceedings shows that by one line order, the applicants have been communicated that the Narmada Water Resources and Water Supply Department has rejected the application and the same is communicated to the petitioners. This shows that the decision has been taken not by the Special Land Acquisition Officer, but by the Government namely; the Narmada Water Resources and Water Supply Department. 6. THE attempt was made by the learned AGP to contend that the opportunity of hearing was given to the Advocate of the applicants, who made the application vide communication dated 1.8.2002, a copy whereof is produced at Annexure-C and the same was also replied by the Advocate on 7.8.2002, a copy whereof is produced at Annexure-D and it was, therefore, submitted that the principles of natural justice could be said as complied by the authority before taking decision. We are afraid such can be said to be a sufficient compliance to the principles of natural justice in view of the facts of the present case. We are afraid such can be said to be a sufficient compliance to the principles of natural justice in view of the facts of the present case. The reason being that as per the provisions of the Act, the power vests to the Collector and even if it is read that such power is to be exercised by the Collector subject to the approval of the State Government or the higher authority, then also it is the Collector, who has to take the decision, whereas in the impugned communication, it appears that the decision was taken by the higher authority. 7. FURTHER, the recommendation by the Collector as to whether to accept the application or not has not come on record. In any case, as the final decision is taken by the State or the higher authority than the Collector, it was required for the said authority to give opportunity of hearing to the petitioners before rejection of the application, which has not been done in the present case. 8. APART from the above, it appears that when this Court admitted the matter on 10.3.2003, it was stated that the inquiry was initiated on the aspect as to whether there was interpolation of record or not and the inquiry was pending at the relevant point of time. It has been stated by the learned AGP that the inquiry is concluded and as per the inquiry report, the interpolation in the record has been found. In our view, even if such report shows that there was some interpolation in the record, the competent authority could not have rejected the application without supplying a copy of the report to the applicants concerned, and thereafter to hear them on the aspects, which they might contend and thereafter only the decision could be taken so as to comply with the principles of natural justice. In view of the aforesaid, we find that the impugned order - Annexure-E cannot be sustained for non-compliance of principles of natural justice. We make it clear that whether the petitioners would be entitled for redetermination of the compensation or not would be required to be decided on merits and in accordance with law by the competent authority and we leave the said aspect open. 9. We make it clear that whether the petitioners would be entitled for redetermination of the compensation or not would be required to be decided on merits and in accordance with law by the competent authority and we leave the said aspect open. 9. IN view of the aforesaid, the impugned order - Annexure-E of rejection of the application under Section 28-A of the Land Acquisition Act, is quashed and set aside with the further direction that the competent authority shall give opportunity of hearing to the petitioners and/or their authorised representative and shall also make the inquiry report available to the petitioner concerned for the alleged interpolation of the record or otherwise. Thereafter, appropriate decision in accordance with law under Section 28-A of the Act shall be rendered as early as possible, preferably within a period of three months from the date of receipt of the order of this Court. 10. THE petitions are allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.