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2015 DIGILAW 1210 (GUJ)

Dilawar Ahmed Badshah v. State of Gujarat

2015-11-26

G.B.SHAH, HARSHA DEVANI

body2015
JUDGMENT : Harsha Devani, J. By this petition under Article 226 of the Constitution of India, the petitioner seeks the following substantive reliefs: "7 In the premises aforesaid, the petitioner, therefore, prays that: A. This Hon'ble Court may be pleased to admit this petition. B. This Hon'ble Court may be pleased to hold and declare that the action on the part of the respondents for not taking decision on the application made by the petitioner dated 01.04.2015 and not re-grant/return the acquired land of the petitioner situated at Vejalpur, Bharuch city, Taluka Bharuch, bearing Survey No.60, 61/1 and 2, 61/3 and 64, admeasuring 33994 Sq. Mtrs., 10016 Sq. Mtrs., 3237 Sq. Mtrs. and 10927 Sq. Mtrs. land respectively is illegal, unjust, arbitrary and violative of Articles 14 and 19 of the Constitution of India by way of issuing suitable writ, order or direction under Article 226 of the Constitution of India. C. This Hon'ble Court may be pleased to direct the respondents to take decision on the application made by the petitioner dated 01.04.2015 and further direct the respondents to re-grant the acquired land of the petitioner situated at Vejalpur, Bharuch City, Taluka Bharuch, District Bharuch bearing Survey No.60, 61/1 and 2, 61/3 and 64, admeasuring 33994 Sq. Mtrs., 10016 Sq. Mtrs., 3237 Sq. Mtrs. and 10927 Sq. Mtrs., by way of issuing suitable writ, order or direction under Article 226 of the Constitution of India." 2. The facts stated briefly are that the lands of the petitioner bearing Survey No.60, 61/1 and 2, 61/3 and 64, admeasuring 33994 square metres, 10016 square metres, 3237 square metres and 10927 square metres respectively, came to be acquired by the Government for the purpose of construction of Police Staff Quarters and Training School. The notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") came to be published on 25.01.1996 and declaration under section 6 of the Act was published on 27.07.1996. The award under section 11 of the Act came to be declared by the Land Acquisition Officer on 30.11.1998 determining the compensation at the rate of Rs.21/- per square metre. The award under section 11 of the Act came to be declared by the Land Acquisition Officer on 30.11.1998 determining the compensation at the rate of Rs.21/- per square metre. The petitioner, not being satisfied with the market price determined by the Land Acquisition Officer, filed reference application under section 18 of the Act, which came to be partly allowed, whereby, the reference court, by an award dated 10.05.2013, awarded additional compensation at Rs.230/- per square metre. Against the award of the reference court, the petitioner herein and other claimants as well as the State Government filed first appeals before this court. The appeals filed by the claimants (including the petitioner) came to be partly allowed by holding that the claimants were entitled to additional compensation at the rate of Rs.254/- per square metre over and above the amount awarded by the Land Acquisition Officer. 3. It is the case of the petitioner that the enhanced amount as determined by this court has yet not been paid by the respondents. It is further the case of the petitioner that his livelihood has been snatched away by acquisition of his lands in the year 1996 and till date, such lands have not been used for the purpose for which they were acquired and are lying idle. The petitioner, accordingly, made an application to the respondents for re-grant of the aforesaid lands by resorting to the provisions of clause 328(1) of the Land Acquisition Manual, in view of the fact that the same are not used for the purpose for which they are acquired. Since such application has not been decided, the petitioner has filed the present petition seeking the reliefs noted herein above. 4. Mr. Kamlesh Sheth, learned advocate for the petitioner invited the attention of the court to the record of the case and to the photographs annexed along with the affidavit-in-rejoinder of the applicant, to point out that a part of the lands which were acquired, remains unutilized till date. Referring to the affidavit-in-reply of the respondents, it was pointed out that it is the case of the respondents that the lands of the petitioner bearing Survey No.60, 61/1 paiki 2 and 61/3 are reserved for Mounted Unit and Mounted Training Centre. The land bearing Survey No.64 is reserved for Archery School Training Centre. Referring to the affidavit-in-reply of the respondents, it was pointed out that it is the case of the respondents that the lands of the petitioner bearing Survey No.60, 61/1 paiki 2 and 61/3 are reserved for Mounted Unit and Mounted Training Centre. The land bearing Survey No.64 is reserved for Archery School Training Centre. That in Survey No.64, Archery School is proposed to be constructed for which, a proposal has also been sent to the office of the Director General of Police, Gandhinagar. It was submitted that therefore, from the averments made in the affidavit-in-reply, it is evident that till date, part of the lands have not been utilised for the purpose for which the same were acquired and that even at this stage, only a proposal for construction of Archery School is pending. It was submitted that the respondents not having utilised the lands for the purposes for which they were acquired, the petitioner, in view of the provisions of section 328 of the Land Acquisition Manual, is entitled to re-grant of the such lands on such terms and conditions in accordance with law. It was submitted that in any case, the respondents are not justified in not deciding the application made by the petitioner for re-grant of the lands in question. 5. Opposing the petition, Mr. K. M. Antani, learned Assistant Government Pleader for the respondents placed reliance upon the averments made in the affidavit-in-reply filed on behalf of the second respondent, to submit that the lands in question have been utilised for the purpose of Police Staff Quarters and Training Centre which have already been established and that part of the lands have been reserved for Mounted Unit and Mounted Training Centre. It was submitted that the proposal for construction of Archery School is pending before the concerned authority and that the whole of the acquired lands are proposed to be used in the near future and the same would be used for the purpose for which they were acquired. It was submitted that having regard to the fact that the entire lands which were acquired are still sought to be used for the purpose for which they were acquired and at no point of time, the respondent authorities have stated that they do not require the lands, the petitioner is not entitled to avail of the benefit of clause 328 of the Land Acquisition Manual. Reliance was placed upon the decision of the Supreme Court in the case of V. Chandrasekaran and another v. Administrative Officer and others, (2012) 12 SCC 133 , for the proposition that once the lands are acquired, the same cannot be restored to the tenure-holders/persons interested, even if it is not used for the purpose for which it was so acquired, or for any other purpose. Reliance was also placed upon the decision of the Supreme Court in the case of Northern Indian Glass Industries v. Jaswant Singh and others, (2003) 1 SCC 335 , for the proposition that it is well settled that after passing the award and taking possession under section 16 of the Act, the acquired land vests with the Government free from all encumbrances. Even if the land was not used for the purpose for which it is acquired, the land owner does not get any right to ask for re-vesting the land in him and to ask for restitution of possession. It was submitted that the present case is squarely governed by the above decisions of the Supreme Court and hence, the lands having already been acquired and vested in the State Government, the petitioner has no right to seek restitution of the same. 6. This court has considered the submissions advanced by the learned counsel for the respective parties and has perused the record as placed before the court, including the affidavit-in-reply, affidavit-in-rejoinder and surrejoinder filed by the respective parties. 7. The following facts are not in dispute. The lands of the petitioner came to be acquired in the year 1996 for the public purpose of construction of Police Staff Quarters and Training Centre. The record of the case reveals that a part of the lands has already been utilised for the purpose for which they were acquired and the remaining part of the lands is proposed to be used for construction of Archery School in relation to which, a proposal is pending before the concerned authority. It is the categorical case of the respondents, as stated in the affidavit-in-reply dated 2nd September, 2015 filed on behalf of the second respondent, that the survey numbers have been reserved or utilised for the specific purpose and that the respondents desire to use the entire lands which have been acquired. It is the categorical case of the respondents, as stated in the affidavit-in-reply dated 2nd September, 2015 filed on behalf of the second respondent, that the survey numbers have been reserved or utilised for the specific purpose and that the respondents desire to use the entire lands which have been acquired. In the aforesaid factual backdrop, the question that arises for consideration is whether the petitioner has any right to seek restitution of the lands which have already been acquired in accordance with law and vested in the Government before a period of eighteen years. 8. In the opinion of this court, the controversy involved in the present petition is no longer res integra, inasmuch as, the same stands concluded by a decision of the Division Bench of this court in the case of Subodhchandra Gulabbhai Desai v. State of Gujarat, 2001 (3) GLR 2134 , wherein the court has held thus: "14. So far as the Manual and Circulars, to which reference has been made by the learned Counsel for the petitioners are concerned, it is very clear that the re-grant of the land is possible under the provisions of this Manual and the Circulars etc., only when the Government takes a decision that the land is not required by it and the Government itself decides to abandon the land, which was acquired. Therefore, the decision of the Government with regard to the abandonment of the land and that the land acquired is not required by it, is a condition precedent for invoking such provisions as are contained in the Manual and Circulars. In the facts of the present case, as have been placed on record, it appears that a substantial part of the land has already been utilised and rest of the land is in the process of being utilised. Thus, there is no question of any direction for re-grant of the land at this stage, when there is no decision by the Government that the land, which is the subject-matter of this petition and which has been acquired long back, is abandoned and is not required. The opinions on which reliance was placed are in fact not relevant for the purpose of deciding the controversy of re grant. The opinions on which reliance was placed are in fact not relevant for the purpose of deciding the controversy of re grant. Unless a decision is taken by the Government that any part of it is not required or that it seeks to abandon the land, the request for re-grant cannot be accepted and so far as this Court is concerned, it finds that the petitioners have no enforceable right to claim re-grant. If at all the Government at any point of time comes to the conclusion that it seeks to abandon any part of the land, which was acquired in the year 1961, which is the subject-matter of this petition, or that the Government abandoned this land, the request of the petitioners may be considered by the Government in accordance with the relevant provisions contained in the Manual and the relevant Circulars." Thus, the court has held that the re-grant of land is possible under the provisions of the Manual and the circulars etc., only when the Government takes a decision that the land is not required by it and the Government itself decides to abandon the land, which was acquired. The court held that unless a decision is taken by the Government that any part of it is not required or that it seeks to abandon the land, the request for re-grant cannot be accepted and so far as this court is concerned, it has found that the petitioners had no enforceable right to claim re-grant. A similar proposition of law has been laid down by the Division Bench of this court in the case of Sanmukhbhai Bhikhabhai Patel and others v. State of Gujarat and others, 2005 (1) GLH 707 . 9. Examining the facts of the present case in the light of the principles propounded in the above decisions, it is evident that the respondents have taken a categorical stand that the lands of the petitioner which came to be acquired in the year 1996, and that a major portion of the lands has been utilised by them and that they propose to utilise the remaining lands for the purposes mentioned herein above. It is not the case of the respondents that they have decided to abandon the lands which were acquired. The petitioner, for the purpose of claiming re-grant of the lands, seeks to place reliance upon clause 328(1) of the Land Acquisition Manual. It is not the case of the respondents that they have decided to abandon the lands which were acquired. The petitioner, for the purpose of claiming re-grant of the lands, seeks to place reliance upon clause 328(1) of the Land Acquisition Manual. As held in the above decisions, the provisions of the Land Acquisition Manual are not statutory provisions and therefore, do not confer any statutory rights upon the petitioner. It is only when the State Government decides to abandon the land that, the question of re-grant of the land to the original owner by resorting to the provisions of clause 328 of the Land Acquisition Manual would arise. Under the circumstances, apart from the fact that the Supreme Court in the above referred decisions has held that once the lands are acquired and are vested in the Government, even if the Government does not desire to retain such lands, the original owner does not have right of restitution of lands and such lands can be disposed of by the Government by way of public auction. Even otherwise, no cause is made out by the petitioner for re-grant of the lands in question, inasmuch as, it is no one's case that the Government has decided to abandon the lands in question. 10. In the light of the above discussion, the petitioner is not entitled to the grant of the reliefs prayed for in the petition. In these circumstances, calling upon the respondents to decide the application made by the petitioner for re-grant of the lands in question, would be an exercise in futility. Therefore, the request of the learned advocate for the petitioner to call upon the respondent authorities to decide such application cannot be accepted. 11. For the foregoing reasons, the petition fails and is, accordingly, dismissed. Petition Dismissed.