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Gujarat High Court · body

2017 DIGILAW 1616 (GUJ)

Laxmiben Ratilal Patel v. State of Gujarat

2017-09-08

B.N. KARIA, M.R.SHAH

body2017
JUDGMENT : M.R. SHAH, J. 1. As common question of law and facts arise in these group of petitions, they are decided and disposed of by this common judgment and order. 2. By way of these petitions under Article 226 of the Constitution of India petitioners herein have prayed for the following reliefs: (a) Be pleased to issue writ of mandamus or any other appropriate writ, order or directions and be pleased to quash and set aside the decision dated 15.04.2017 passed by respondent no. 3 – Special Land Acquisition Officer, as the same is unreasoned order and the same is passed without considering the detailed contentions raised by the petitioners and the same has been passed without considering and dealing with the contentions raised by the petitioners in respect of reliance placed by the petitioners in respect of judgment and order dated 16.01.2017 passed in Land Acquisition Case No. 283/2001 by the Hon’ble Principal Senior Civil Judge, Nadiad, therefore, the decision dated 15.04.2017 of the respondent no. 3 may kindly be quashed and set aside, in the interest of justice. (b) Be pleased to issue appropriate writ, order or direction and be pleased to direct the concerned respondent authorities to pay the compensation of Rs. 110/- per sq meters to the petitioners in respect of the lands/respective survey numbers of the petitioners and be pleased to further direct the respondent no. 3 to pay additional amount of compensation @ 12% on additional amount of compensation which may be awarded to the petitioners- claimants under the provision of Section 23(1)(a) of the Land Acquisition Act and be pleased to further direct the respondent no.3 to pay solatium @ 30% on the additional amount of compensation under Section 23(2) of the Land Acquisition Act and respondent no.3 may kindly be further directed to pay interest on the additional compensation @ 9% p.a. from the date of taking over the possession and /or from the date of publication of Section 4 notification and for subsequent years the interest may be ordered to be paid @ 15% p.a. till the actual payment is being made in the interest of justice. 3. It is the case on behalf of the petitioners that so far as petitioner no. 3. It is the case on behalf of the petitioners that so far as petitioner no. 3 is concerned, his brother, who was also the co-owner of the lands acquired submitted the Reference Application under Section 18 of the Land Acquisition Act and the Reference was made to the concerned District Court, Kheda at Nadiad, which was numbered as Land Acquisition Case No. 283/2001 and by the judgment and order dated 16.01.2017 the learned Reference Court partly allowed the said Reference and awarded compensation at the rate of Rs. 110/- per sq meter. It is submitted that therefore with respect to another lands acquired under the said notification under Section 4 of the Land Acquisition Act the petitioners shall also be entitled to the amount of compensation under Section 28A of the Land Acquisition Act as per the judgment and award passed by the learned Reference Court dated 16.01.2017 in Land Acquisition Case No. 283/2001. It is submitted that therefore the appropriate authority has materially erred in rejecting the application/applications of the petitioners for re-determination of the compensation under Section 28A of the Land Acquisition Act, which was claimed on the basis of the judgment and award passed by the learned Reference Court in Land Acquisition Case No. 283/2001 dated 16.01.2017, which was with respect to the lands acquired under the very Notification under Section 4 of the Land Acquisition Act, and therefore, it is requested to admit/allow the present petition. 4. Shri Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the respondents has submitted that so far as the petitioners are concerned it was a consent award and so far as claim of Land Acquisition Case No. 283/2001 is concerned, it was an award under Section 11(1) of the Land Acquisition Act. It is submitted that therefore when the consent award so far as the petitioners is concerned, Section 28A of the Land Acquisition Act shall not be applicable and the case of the petitioner in Land Acquisition Case No. 283/2001 cannot be comparable with the case of the petitioners herein. It is submitted that therefore when Section 28A of the Land Acquisition Act shall not be applicable in case of the petitioners, the petitioners are not entitled to any amount of compensation under Section 28A of the Land Acquisition Act as claimed. Making the above submissions, it is requested to dismiss the present petition. 5. It is submitted that therefore when Section 28A of the Land Acquisition Act shall not be applicable in case of the petitioners, the petitioners are not entitled to any amount of compensation under Section 28A of the Land Acquisition Act as claimed. Making the above submissions, it is requested to dismiss the present petition. 5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the petitioners herein are claiming the compensation under Section 28A of the Land Acquisition Act at par with the claim of petitioner in Land Acquisition Case No. 283/2001. It is required to be noted and it is not in dispute that so far as the petitioners are concerned, the consent award was passed by the Special Land Acquisition Officer and all the petitioners herein agreed to accept the amount of compensation as agreed and on the basis of which as such the consent award was passed. It appears and it is not in dispute that so far as the claim in Land Acquisition Case No. 283/2001 is concerned, there was a regular award under Section 11(1) of the Land Acquisition Act, and therefore, as such, the case of the petitioners cannot be compared with that of the claimant of Land Acquisition Case No. 283/2001. At this stage, Section 28A of the Land Acquisition Act, 1894 is required to be referred to, which reads as under: “28A Re-determination of the amount of compensation on the basis of the award of the Court. At this stage, Section 28A of the Land Acquisition Act, 1894 is required to be referred to, which reads 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. (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 subsection (2) may, by written application to the Collector, require 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.” 5.1 On fair reading of Section 28A of the Land Acquisition Act, only in a case where in an award passed under Section 28 of the Land Acquisition Act, 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 award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18 may claim the amount of compensation at par with and /or as per the award declared by the Reference Court, and therefore, one of the condition, which is required to be satisfied is that the concerned persons interested in all the other land covered by the same notification under Section 4 Sub-Section (1) must be the persons aggrieved by the award of the Collector. Once the consent award was declared, it cannot be said that those persons who agreed for the amount of compensation and consequently the consent award was passed can be said to be aggrieved by the award of the Collector. Under the circumstances, in case of the consent award, Section 28A of the Land Acquisition Act shall not be applicable as those persons who are covered under the consent award cannot be said to be aggrieved by such an award of the Collector (consent award). Under the circumstances, petitioners are not entitled to any amount of compensation under Section 28A of the Land Acquisition Act as claimed. 6. In view of the above and for the reasons stated hereinabove, present petitions fail and the same deserve to be dismissed and are accordingly dismissed. Petitions are dismissed.