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2013 DIGILAW 667 (GUJ)

Legal Heirs and Representative of Deceased Ahmad Mahmad v. State of Gujarat

2013-11-20

MOHINDER PAL, RAVI R.TRIPATHI

body2013
Judgment Ravi R. Tripathi, J.—Learned Advocate for the petitioners submitted that Special Civil Application No. 11854 of 2012 is the lead petition and Special Civil Application Nos. 3279, 3280 and 3281 of 2013 are one page petitions. 2. These petitions are filed praying that:— “8. (B) To issue appropriate writ, order or direction, quashing and setting aside the award dated 14.2.1991 passed by the Respondent No. 2 (Officer on Special Duty (Land Acquisition) Unit No. 1, Ashram Road, Ahmedabad) by inter alia declaring that delay has vitiated the acquisition of the lands under the impugned award and the same has lapsed with respect to the lands of the petitioners bearing Survey Nos. 325, 325 paiki, 342 and 361 situated at village Sachin, Tal. Choryasi, Distt. Surat;” 3. It is true that it is always good that the society is governed by law but then, that carries with it an inbuilt danger of process of law being abused. Present is the case wherein award of 1991 is challenged by filing these petitions and it is not difficult for anybody, much less the Court to understand the underlying object /purpose of filing these petitions. The land acquisition proceedings are by now more than two decades old and a judicial notice can be taken of the fact that prices of real estate have skyrocketed beyond imagination of the staunch supporter of inflation in the real estate. It is true that nobody would have dreamt of the prices which the real estate will be fetching in 2013 when the present land acquisition proceedings took place. This Court has no hesitation in putting on record that but for that skyrocketed prices of the real estate, the petitioners would not have taken trouble to come to this Court and challenge land acquisition proceedings wherein the land owners consented for giving their lands to the public authority so as to enable the public authority to plan development around the city of Surat and the Court will not be wrong if it is also put on record that the land owners must have had some benefit out of the said industrial development. (emphasis supplied). 3.1 It is not a matter of which judicial notice cannot be taken that normally for planed growth, acquisition is required to be made on massive basis. (emphasis supplied). 3.1 It is not a matter of which judicial notice cannot be taken that normally for planed growth, acquisition is required to be made on massive basis. It is only thereafter that there could be required planning of growth and while doing so, the policy makers have to provide for room for future expansion and planning has to be made accordingly. 4. Learned Advocate for the petitioners in all these petitions very vehemently contended that there is a breach of Section 11-A of the Land Acquisition Act, 1894. Section 11-A provides “Period within which an award shall be made”. No doubt it is provided that:— “(1) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.” 4.1 It is also contended that there is breach of Sub-section (2) of Section 12. Section 12 provides “An award of the Collector when to be final”. Sub-section (2) provides that:— “The Collector shall give immediate notice to his award to such of the persons interested as are not present personally or by their representatives when the award is made.” 4.3 Learned Advocate for the petitioners was asked to invite attention of the Court to the reasons for approaching this Court belatedly only in the year 2012, challenging award dated 14.02.1991. Learned Advocate for the petitioners invited attention of the Court to Paras-3.5, 3.6 and 3.7 of the petition. Least it be said that the Court has kept back the contents of those Paras. The same are reproduced for ready perusal:— “3.5 The petitioners state that no notice under Section 12(2) has been served upon the petitioners till date. Even the mandatory notice under Section 9(3) of the Land Acquisition Act has not been issued and served to the petitioners prior to the making of the Award under Section 11 and therefore, the award dated 14.2.91 is invalid and the possession cannot be taken pursuant to such invalid award. Even the mandatory notice under Section 9(3) of the Land Acquisition Act has not been issued and served to the petitioners prior to the making of the Award under Section 11 and therefore, the award dated 14.2.91 is invalid and the possession cannot be taken pursuant to such invalid award. There is no explanation whatsoever as to what prevented the respondents from performing its statutory duty and pay the compensation immediately. The inordinate delay of 20 years in offering compensation has seriously prejudiced the petitioners. It is further submitted that the delay of more than 20 years in paying the compensation and completing the acquisition proceedings has vitiated the acquisition and the same has lapsed. 3.6 The petitioners are still in possession of the lands and the Respondent No. 2 has not taken any action till date to take physical possession of the lands from the petitioners. However, as mentioned hereinabove, in the year 2003, notice was issued to land owners who had challenged the acquisition proceedings by filing a writ petition. The said land owners, on receipt of the notice to hand over possession, challenged the same by preferring a writ petition being Special Civil Application No. 18146 of 2003 before the Hon’ble High Court. The petitioners of the said petition had raised several grounds to challenge the issuance of notice to hand over possession as well as the impugned award. After hearing both the sides, the Division Bench of this Hon’ble Court, vide order dated 24.9.2010 held that considering various judicial pronouncements and settled law, the acquisition of the lands in question was vitiated. Accordingly, this Hon’ble Court held that the impugned award dated 14.2.1991 passed by the Respondent No. 2 and notices issued to the petitioners of the said petition under Section 12 are liable to be quashed and accordingly, the petition was allowed qua the said petitioners. Copy of the order of the Hon’ble High Court in SCA No. 18146 of 2003 dated 24.9.2010 is annexed and marked as Annexure ‘C’. 3.7 The petitioners submit that they are similarly situated to the petitioners of the above mentioned petitions, if not on an even better footing. The petitioners submit that the petitioners have also not been served with notices under Sub-section (2) of Section 12 of the Act. 3.7 The petitioners submit that they are similarly situated to the petitioners of the above mentioned petitions, if not on an even better footing. The petitioners submit that the petitioners have also not been served with notices under Sub-section (2) of Section 12 of the Act. The petitioners submit that after the above mentioned judgment of the Hon’ble High Court, recently when the petitioners went on their lands for cutting grass, etc., they were prevented by some persons from entering the lands. The said persons claimed to be officers of the Respondent No. 3 and tried to prevent the petitioners from entering their lands. It is at this point of time that the petitioners came to know about the acquisition proceedings and order of the Hon’ble High Court as mentioned hereinabove.” 4.4 The Court did inquire from the learned Advocate for the petitioners that, whether the petitioners are residing at the same place (the place which is under acquisition). Learned Advocate for the petitioners replied that the petitioners are residing at the same place. It was next put to the learned Advocate for the petitioners whether the petitioners noticed any unusual activity in the vicinity of their lands (unusual activity is referred to the activities which do not come within the purview of normal activities on the agricultural land). Learned Advocate for the petitioners was fair enough and submitted that it was noticed that some boundary wall is constructed. It was then put to the learned Advocate for the petitioners as to, how for from the lands in question, that boundary wall is constructed Learned Advocate for the petitioners submitted that he will not be able to answer in exact terms of the distance, but one thing is certain that the petitioners were able to notice construction of compound wall. If that is so, this Court is not ready to believe that an agriculturist will not inquire into as to what this boundary wall is coming up for. This is to suggest that the petitioners have not approached this Court with clean hands. If that is so, this Court is not ready to believe that an agriculturist will not inquire into as to what this boundary wall is coming up for. This is to suggest that the petitioners have not approached this Court with clean hands. The petitioners had knowledge of the acquisition proceedings, but then, did not challenge those proceedings and it is only after having had the fruits of those proceedings, may not be directly then indirectly, as a calculated attempt, to seer that if by pressing into service intricacies of law if the ‘acquisition’ could be got declared to be void so as to have nothing less than a gold mine, have approached this Court. 4.5 This Court is conscious of the fact that acquisition of agricultural lands is in no way less important event in the life of an agriculturist. An agriculturist is deprived of his livelihood when his agricultural land stands acquired. But, this Court cannot pay premium to a dishonest attempt, be it on the part of an agriculturist. Here are persons who come before this Court not with clean hands, pleading all possible ignorance about all inconvenient facts and setting all those details which they are not otherwise suppose to know like filing of a criminal complaint against one Shri C.R. Patil for he having not paid some amount to Respondent No. 3 (Gujarat Industrial Development Corporation). It is this fact which makes this Court to draw an inference that petitioners have not approached this Court with clean hands. If not sitting on fence then sitting in their own huts, they were watching proceedings and were waiting for favourable climate to be generated and then to approach this Court and see that they should also get something out of such litigation. 4.6 At this juncture, it will be appropriate to refer to affidavit in reply filed by officer of Respondent No. 3. The affidavit in reply is affirmed by one Shri B.M. Khanama, Regional Manager, GIDC, Surat, wherein all possible details of the acquisition are placed. It is set out in the affidavit that at the relevant time, persons concerned consented for the acquisition and accordingly awards were made and the possession of the lands was taken. (emphasis supplied). The affidavit in reply is affirmed by one Shri B.M. Khanama, Regional Manager, GIDC, Surat, wherein all possible details of the acquisition are placed. It is set out in the affidavit that at the relevant time, persons concerned consented for the acquisition and accordingly awards were made and the possession of the lands was taken. (emphasis supplied). 4.7 Learned Advocate for Respondent No. 3 submitted that as the acquisition was of huge parcel of land and it took time to develop the lands in question, persons like the petitioners have come forward to claim that they are still in possession of their lands, but then on record, the things are otherwise. In this regard, learned Advocate for Respondent No. 3 invited attention of the Court to the averments made in Para-3.7, wherein the petitioners have stated that, “The petitioners submit that they are similarly situated to the petitioners of the above mentioned petitions, if not on an even better footing. The petitioners submit that the petitioners have also not been served with notices under Section 12 of the Act (learned Advocate for the petitioners referred to Sub-section (2) of Section 12). The petitioners submit that after the above mentioned judgment of the Hon’ble High Court, recently when the petitioners went on their lands for cutting grass, etc., they were prevented by some persons from entering the lands. The said persons claimed to be officers of the Respondent No. 3 and tried to prevent the petitioners from entering their lands. It is at this point of time that the petitioners came to know about the acquisition proceedings and order of the Hon’ble High Court as mentioned hereinabove.” 4.8 This Court appreciates the draftsmanship of the learned Advocate for the petitioners. Though all possible details are kept back from the Court, it can be said that the petitioners have not suppressed any relevant information and have placed the same for consideration of this Court. To illustrate, it is stated that, “..... recently when the petitioners went on their lands for cutting grass, etc.....”. ‘Recently’ is a very stretchable term, if not vague. Deliberately the petitioners have not given any starting point of that ‘recent period’. It is further stated that, “..... petitioners went on their lands for cutting grass.....”. Now, if the lands were in their possession, why were they not cultivated. ‘Recently’ is a very stretchable term, if not vague. Deliberately the petitioners have not given any starting point of that ‘recent period’. It is further stated that, “..... petitioners went on their lands for cutting grass.....”. Now, if the lands were in their possession, why were they not cultivated. Grass is never cultivated by the farmers, it grows of its own. As a gesture of goodwill if Respondent No. 3 did not prohibit persons from cutting grass from the lands in question, more particularly to the persons like the petitioners who are agriculturists and are having milching animals, the Court finds no fault on the part of Respondent No. 3. 4.9 It is then stated that, “the petitioners were prevented” and then it is stated that the petitioners the, “persons who prevented the petitioners from entering the lands claimed themselves to be the officers of Respondent No. 3”. What a nice way of putting things in a most simpler manner. It amounts to saying that the officers of Respondent No. 3 were waiting at the agricultural lands of the petitioners as if they knew the auspicious day and the auspicious moment at which the petitioners will come for cutting grass and they will be required to be prevented from entering the lands. Well all this is set out in detail to show that the petitioners are not coming to this Court with clean hands and therefore, the Court is in its bounds to refuse the discretionary relief under Article 226 of the Constitution of India. 4.10 Learned Advocate for the petitioner was asked to explain the difference between the two, (1) ‘they were prevented’ and (2) ‘the officers tried to prevent’. Learned Advocate for the petitioners submitted that these terms are used loosely and they mean the same thing. The Court with some reluctance has accepted this explanation and has proceeded on the basis that the petitioners were prevented from entering the lands. The Court finds nothing illegal on the part of the officers of Respondent No. 3 because otherwise also, this is in support of the averments made in the affidavit in reply that the possession of the lands was already taken long time back. The Court finds nothing illegal on the part of the officers of Respondent No. 3 because otherwise also, this is in support of the averments made in the affidavit in reply that the possession of the lands was already taken long time back. 4.11 Learned Advocate for the petitioners submitted that the averments made by the learned Senior Advocate for the petitioners in other group of petitions about lands having been not put to use and the submission that the purpose for which lands were acquired that is ‘establishing an Industrial Estate’ is given go-bye, as to a large extent, the lands are sought to be sold by Respondent No. 3 (GIDC) on “as is were is basis” to other parties, be also considered in the present group of petitions. 5. As stated hereinabove, acquisition of lands, which started almost two decades back, was for a planned growth and it is always with a scope for expansion of such growth. In such situation, the Court can take notice of the fact that it can never happen that immediately after the land is acquired, within a period of three to five years, it is exhausted. It so happens, then for future growth /expansion, further acquisition will be required which will not be possible because by that, land will not be available at the same place. In that case, growth will not be harmonious growth. Therefore, these submissions are found to be without any substance. These submissions are discussed in more detail in other group of petitions. 6. In the result, the Court finds that these petitions are without any merit. The same are dismissed. Notice is discharged. Interim relief, if any, is vacated. No order as to costs. 7. The Court restrains itself from imposing any cost on these petitioners, more particularly because they are approaching this Court on the basis of legal advice which is not found acceptable by this Court.