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2017 DIGILAW 1062 (GUJ)

Babuji Ambaram Thakor v. Land Acquisition Officer

2017-06-09

B.N.KARIA, M.R.SHAH

body2017
ORDER : M.R. Shah, J. 1. Rule. Shri Dhawan Jayswal, learned AGP appears and waives service of notice of rule for and on behalf of the respondents. 2. In the facts and circumstances of the case, the present petition is taken up for final hearing today. 3. By way of this petition preferred under Article 226 of the Constitution of India, the petitioner has prayed for issuance of appropriate writ, order or direction quashing and setting aside the impugned Order dated 2nd January 2017 passed by the Deputy Collector & Special Land Acquisition Officer, Narmada Project, Mehsana, by which the application submitted by the petitioner for re-determination of compensation under Section 28A of the Land Acquisition Act, 1894 has been rejected. 4. Facts leading to filing of Special Civil Application in nutshell are as under: 5. That, the land in question was originally owned by one Sipoy Razakbhai Rahimbhai. It appears that the land in question was subject to land acquisition proceeding under the provisions of the Land Acquisition Act, 1894. That, a Notification under Section 4 of the Act came to be published on 31st January 2012. It is the case on behalf of the petitioner that prior to that, the petitioner purchased land in question which was acquired from the original owner, however, the name of the petitioner was not mutated in the revenue records. By the time the proceedings under the Land Acquisition Act were concluded and the Award under Section 11 of the Act came to be published on 28th February 2013. It is the case on behalf of the petitioner that despite the fact that the petitioner purchased the land in question from original owner before the last date of publication of Section 4 Notification, the Award under Section 11 of the Act came to be published in favour of the original owner and the compensation as per Section 11 of the Act was paid to the original owner. That thereafter, the petitioner being the purchaser of the land in question which was acquired, submitted an application under Section 28A of the Land Acquisition Act to re-determine the compensation as per the judgment and award passed by the Reference Court with respect to the lands acquired under the same notification. That the said application came to be rejected by the appropriate authority by passing the impugned order. 6. That the said application came to be rejected by the appropriate authority by passing the impugned order. 6. Feeling aggrieved and dissatisfied by the impugned order dated 2nd January 2017 passed by the appropriate authority, the petitioner has preferred the present petition. 7. Shri J.K. Gandhi, learned advocate appearing on behalf of the petitioner has vehemently urged that in the facts and circumstances of the case; more particularly when the petitioner is the owner of the land which he had purchased from the original owner prior to the Section 6 notification, the Deputy Collector has materially erred in rejecting the application submitted by the petitioner under Section 28A of the Act on the ground that mutation entry in the Revenue records was made subsequent to Section 4 Notification. It is submitted that what is required to be considered by the appropriate authority was whether at the time of Section 28A application, the petitioner was the owner of the land or not. It is submitted that merely because the name of the petitioner was not in the Award; though in the Award declared under Section 11 of the Act, the same was required to be included, the application of the petitioner under Section 28A of the Act could not have been rejected. Making the above submissions and relying upon a decision of the Supreme Court in the case of Union of India v. Shri Shivkumar Bhargava & Ors., reported in JT 1995 [6] SC 274, it is requested to allow the present petition by quashing and set-aside the impugned order and directing the respondents to re-consider its decision and consider the application made by the petitioner for re-determination of compensation under Section 28A of the Act on merits. 8. The present petition is opposed by Shri Dhawan Jayswal, learned AGP appearing on behalf of the respondents. It is submitted that in the present case, at the time of land acquisition proceedings, name of the petitioner was not there in the revenue records. It is submitted that at the relevant time, name of the original owner was there on the record, and therefore, in the Award declared under Section 11 of the Act, the Award was declared in the name of the original owner. It is submitted that even thereafter, the original owner accepted/got the compensation, as determined under the Award passed under Section 11 of the Act. It is submitted that even thereafter, the original owner accepted/got the compensation, as determined under the Award passed under Section 11 of the Act. It is submitted that even thereafter also, the original owner has submitted a similar application for re-determination of compensation under Section 28A of the Act and the same is pending, as the decision of the Reference Court upon which reliance is placed is subject matter in First Appeal before this Court, and therefore, when the Award was declared, it was declared in the name of the original owner. Even in the revenue records, name of the petitioner came to be mutated after the second notification, and therefore, the application under Section 28A of the Act has been rightly rejected by the appropriate authority. Making the above submission, it is requested to dismiss the present petition. 9. Heard learned advocates appearing on behalf of the respective parties. 10. At the outset, it is required to be noted that the petitioner claims to be the owner of the land in question which has been purchased by him by a registered sale deed. According to the petitioner, he purchased the said land from the original owner prior to publication of Section 6 Notification. It may be noted that because at the time when Section 4 Notification was issued and even the Award under Section 11 of the Act was passed, name of the petitioner was not mutated in the Revenue records, and therefore, name of the petitioner might not have been stated in the Award and the Award under Section 11 of the Act might have been declared in favour of the original owner. However, it appears that when the petitioner, being the owner of the land, on the basis of registered sale deed submitted an application for re-determination of the compensation under Section 28A of the Act, the same could not have been rejected on the ground that when Section 4 Notification was issued, name of the petitioner was not mutated in the revenue records and that the name of the petitioner was mutated subsequent to Section 4 Notification. What was required to be considered was that when the land acquisition proceedings were concluded, at the time when the petitioner submitted application, whether the petitioner was owner of the land or not. What was required to be considered was that when the land acquisition proceedings were concluded, at the time when the petitioner submitted application, whether the petitioner was owner of the land or not. Be that as it may, on the ground on which the petitioner's application is rejected, the same cannot be sustained. If the original owner had submitted any similar application for re-determination of compensation under Section 28A of the Act, in that case, while entertaining application of the petitioner, the same is required to be decided alongwith the application submitted by the original owner and after giving an opportunity of hearing to the petitioner as well as the original owner. 11. In view of the above and for the reasons aforestated, the present petition succeeds. The impugned order is hereby quashed and set-aside. The matter is remitted to the Deputy Collector & Special Land Acquisition Officer, Narmada Project [Unit-I], Mehsana for decision on the application submitted by the petitioner on merits in accordance with law; as observed hereinabove. It will be open for the appropriate authority to consider the application of the petitioner alongwith application submitted by the original owner. It goes without saying that the said application/s are required to be decided after decision on the first appeals pending before this Court, which are reported to have been filed against the judgment and award passed by Reference Court and upon which reliance is placed. However, it is made clear that we have not expressed anything on the merits whether the petitioner is entitled to compensation under Section 28A of the Act or not. Rule made absolute to the aforestated extent.