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Gujarat High Court · body

2016 DIGILAW 432 (GUJ)

Patel Ranchodbhai Becharbhai v. State of Gujarat

2016-02-23

AKIL KURESHI, Z.K SAIYED

body2016
ORDER AKIL KURESHI, J. Petitioner has prayed for a declaration that the acquisition proceedings initiated by the respondents under notification dated 31.07.2011 have lapsed. Petitioner is owner of land bearing block No. 22, admeasuring 5059 sq. mtr. of village Lawarpur, Tal. & Dist. Gandhinagar. Such land was required for the purpose of road upgradation for Gujarat International Financial Tech City. The Government, therefore, issued notification under Section 4 of the Land Acquisition Act, 1894 on 12.08.2011 Notification under Section 6 of the Act was published on 03.05.2012 On 01.01.2014, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“the Act of 2013” for short) was promulgated. The Land Acquisition Officer, however, on 17.06.2014, passed award under Section 11 of the Land Acquisition Act, 1894. At that stage, the petitioner has filed this petition contending that in view of the Act of 2013 having been enacted, the award had to be passed only under the provisions of the said Act and since the award passed by the Special Land Acquisition Officer under Section 11 of the Land Acquisition Act, 1894 is no award in eye of law, the land cannot be stated to have been validly acquired. 2. Learned Counsel for the petitioner drew our attention to Sections 24 and 26 of the Act of 2013. Sub-section (1) of Section 24 provides that notwithstanding anything contained in the Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under Section 11 of the Act has been made then all provisions of the Act of 2013 relating to determination of compensation shall apply. However, where an award under Section 11 has already been made then such proceedings shall continue under the Land Acquisition Act, 1894. In Section 26 of the Act of 2013, parameters for determination of market value of land by Collector have been provided. Sub-section (1) of Section 26 lays down criteria for assessing and determining market value of the land. Subsection (2) of Section 26 provides that the market value calculated as per Sub-section (1) shall be multiplied by a factor to be specified in the First Schedule. Counsel pointed out that such factor has not yet been specified by the Government. Sub-section (1) of Section 26 lays down criteria for assessing and determining market value of the land. Subsection (2) of Section 26 provides that the market value calculated as per Sub-section (1) shall be multiplied by a factor to be specified in the First Schedule. Counsel pointed out that such factor has not yet been specified by the Government. Instead, as pointed out in the affidavit in reply by the State, a circular has been issued on 25.04.2014 providing that cases of pending acquisition were awards have been passed under Section 11 of the Land Acquisition Act, 1894, Factor-1 would be applied. However, if later on, Government takes a decision to modify this factor, the same would be applied to such awards also. 3. Counsel for the petitioner stated under instructions that as long as the respondent authorities pass a fresh award under the Act of 2013, the petitioner would not insist on quashing of the acquisition and would accept such award and the compensation therein, subject to his right to challenge the same. He, however, submitted that the respondent authorities should treat land in question as irrigated land since with the aid of bore well situated in adjacent lands and the underground cement pipelines, the land is being perennially irrigated since long. The authorities have recently carried out a spot survey and drawn a panchnama, in which this aspect is clearly established. 4. On the other hand, learned AGP Shri Patel, referring to the affidavit in reply dated 13.10.2015, submitted that the competent authority would determine the compensation in terms of the Act of 2013, however, the question of the land being irrigated or non-irrigated, cannot be decided in a writ petition and must be left to the State authority to judge on the basis of materials that may be brought on record. He further stated that provisions of the circular dated 25.04.2014 would be applied in the present case also. 5. In view of such broad consensus, we propose to dispose of the petition making certain observations and giving suitable directions. We may recall, the authorities, having passed award under Section 11 of the Act of 1894, though the Act of 2013 was already enacted, have now agreed to pass a fresh award under the provisions of the Act of 2013. In view of such broad consensus, we propose to dispose of the petition making certain observations and giving suitable directions. We may recall, the authorities, having passed award under Section 11 of the Act of 1894, though the Act of 2013 was already enacted, have now agreed to pass a fresh award under the provisions of the Act of 2013. The petitioner has stated before us through the Advocate that under such case, the petitioner would not seek quashing of the acquisition itself. We, therefore, direct the Special Land Acquisition Officer to pass a fresh award in terms of the Act of 2013. Question whether the land is irrigated or not would be gone into by him on the basis of available material on record, for which the petitioner would have opportunity of placing evidence and documents as may be desired. The Special Land Acquisition Officer shall take a final decision on the determination of the market value of the land and pass a fresh award of compensation in terms of the Act of 2013. It is clarified that in terms of the Government circular dated 25.04.2014, suitable factor that the Government may specify in future would apply to such award also. The award shall be passed latest by 31.05.2016 6. Petition disposed of accordingly.