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2019 DIGILAW 829 (GUJ)

Dahyalal v. State of Gujarat

2019-10-01

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : VIKRAM NATH, J. 1. Present group of Writ Petitions are arising out of a common issue involved in the proceedings, whereby the respondent authority by way of an order dated 22.6.2018 has not considered the request of the petitioners in respect of additional compensation for 'Kharaba' land. 2. Since all the 3 petitions are raising identical issues, at the request of learned counsel, these 3 petitions are dealt with by present common order, by treating Special Civil Application No. 16847 of 2019 as a lead matter. Hence, the background of fact is taken out of it. 3. The petitioners were the owners and occupiers of land baring Block No. 15 Paiki, admeasuring 21145 sq. mtrs., Block No. 10/2 6475 sq. mtrs., Block No. 13/2 20639 sq. mtrs. and Block No. 16 Paiki 24889 sq. mtrs., situated at village Dared, Taluka & District - Jamnagar. The said lands were acquired for GIDC, Jamnagar-2 Industrial Residence Extension. For this purpose, a Notification under Section 4 of the Land Acquisition Act (for short 'the Act') was published on 8.1.1996; declaration of Section 6 Notification was made on 5.7.1996 and the award was declared on 30.9.1999 awarding a sum of Rs. 12/- per sq. mtr. for the land admeasuring 72,439 sq. mtrs. Considering it as agricultural land and Rs. 1/- per Are for the land admeasuring 709 (405 + 304) sq. mtrs. considering it as Kharaba land. Accordingly, an award was passed under Section 11 of the Act and since the said amount found to be inadequate, the petitioners approached the Reference Court under Section 18 of the Act for the land admeasuring 72,743 sq. mtrs. Except the portion of Kharaba land bearing Block No. 15 Paiki admeasuring 405 sq. mtrs. for claiming additional amount of compensation to the extent of Rs. 350/- per sq. mtr. Said reference was registered as LRC No. 151 of 2001, wherein the Reference Court determined the market value of the land at Rs. 157/- per sq. mtr. as an additional amount of compensation with consequential benefits and disposed of the reference proceedings vide judgment and order dated 30.4.2013. 3.1. According to the petitioners, with respect to Kharaba land, as indicated above, no reference application was submitted under Section 18 of the Act. The petitioners made an application under Section 28A of the Act on 29.7.2013. mtr. as an additional amount of compensation with consequential benefits and disposed of the reference proceedings vide judgment and order dated 30.4.2013. 3.1. According to the petitioners, with respect to Kharaba land, as indicated above, no reference application was submitted under Section 18 of the Act. The petitioners made an application under Section 28A of the Act on 29.7.2013. However, vide order dated 2.6.2017, said application under Section 28A of the Act came to be rejected. This decision since contrary to the well settled position, the petitioners were constrained to approach this Court initially by way of Special Civil Application No. 3163 of 2018 which came to be allowed after hearing both the sides and it has been observed in the order passed by the Division Bench of this Court that it is obligatory on the part of Land Acquisition Officer to re-determine the compensation by taking note of the award of the Reference Court for the land covered under the same Notification and also held that such statutory benefit conferred upon the claimant, cannot be rejected on the ground that petitioners are not entitled to claim any compensation with respect to Kharaba land. 3.2. Pursuant to aforesaid order passed by the Division Bench of this Court on 10.4.2018, the petitioners submitted an application under Section 28A of the Act and requested that the application deserves to be considered insofar as the said portion of land is concerned under Section 28A of the Act. 3.3. According to the petitioners, surprisingly, despite the directions and observations made by the Division Bench of this Court as indicated above, by way of an order dated 22.6.2018 the respondent No. 2 again reiterated and rejected the application on the ground that since the additional compensation has already been determined under Section 18 of the Act, again the said exercise under Section 28A of the Act is not to be undertaken and, therefore, with respect to Kharaba land, appropriate orders from the District Court under Section 18 of the Act will have to be obtained. Accordingly, Section 28A of the Act insofar as it relates to Kharaba portion of land came to be rejected and it is this order passed by respondent No. 2 is made the subject matter of present petitions under Article 226 of the Constitution of India. 4. Accordingly, Section 28A of the Act insofar as it relates to Kharaba portion of land came to be rejected and it is this order passed by respondent No. 2 is made the subject matter of present petitions under Article 226 of the Constitution of India. 4. Shri K.M. Sheth, learned counsel appearing on behalf of the petitioners, has vehemently contended that the authority below has not examined the issue involved in its proper perspective and has rather failed to examine that earlier the reference under Section 18 of the Act which was made was with respect to the lands except the Kharaba portion of land and, therefore, re-determination request always can be made under Section 28A of the Act by taking note of award and there is no question of re-determination as understood by the authority. 4.1. Learned counsel for the petitioners has further submitted that it was a categorical assertion that additional amount of compensation was not at all the subject matter of controversy before the District Court under Section 18 of the Act with respect to Kharaba land. As a result of this, the statutory obligation which is to be performed under Section 28A of the Act cannot be refused to be undertaken. In that view of the matter, learned counsel for the petitioners has submitted that if this order is allowed to be stand in the eye of law, the same would defeat the very purpose of Section 28A of the Act. It has further been submitted that the Kharaba land for which only Rs. 1/- per Are came to be awarded and that having found to be very meager, an application Section 28A of the Act was made. In fact, the Kharaba land is to be considered as a portion of land and the only circumstance is that Kharaba land would not yield any agricultural produce and, therefore, while assessing the market value, the portion of Kharaba land cannot be unnoticed from determination of proper market value, when demanded. 4.2. Learned counsel for the petitioners has further submitted that on earlier occasion, the Division Bench of this Court has in clear terms observed in Para. 4.2. Learned counsel for the petitioners has further submitted that on earlier occasion, the Division Bench of this Court has in clear terms observed in Para. 7 and 8 and has set aside the action of the respondent authority and remitted the matter back to the authority and as such, it is not open for the respondent No. 2 to refuse the request made by the present petitioners under Section 28A of the Act. Learned counsel for the petitioners has submitted that this is nothing but a patent illegality committed by respondent No. 2 which has got the effect of defeating the very purpose of enactment of Section 28A of the Act. Hence, the relief as prayed for be granted, in the interest of justice. 5. To meet with the stand taken by the learned counsel for the petitioners, Shri D.M. Devnani, learned Assistant Government Pleader appearing on behalf of respondent - State, has submitted that the authority while passing an order has extended an opportunity of hearing to the parties and has also considered the request made by the petitioners. Simply because the order is not favouring the petitioners, the same ipso facto would not become assailable. On the contrary, the Kharaba land, according to learned Assistant Government Pleader, has rightly been dealt with at the time when acquisition has taken place and the award has been published. Further, the learned Assistant Government Pleader has fairly submitted that earlier the Division Bench in an order dated 10.4.2018 has considered such issue and ultimately, has left the issue to be dealt with appropriately. No other submissions have been made. 6. Having heard the learned counsel appearing for the respective parties and having gone through the material on record, there is a clear assertion on the part of petitioners that when the reference applications were submitted under Section 18 of the Act, the portion of Kharaba land was never the subject matter of said reference and that fact is not disputed. Having heard the learned counsel appearing for the respective parties and having gone through the material on record, there is a clear assertion on the part of petitioners that when the reference applications were submitted under Section 18 of the Act, the portion of Kharaba land was never the subject matter of said reference and that fact is not disputed. Further, this Section 28A application has been submitted for determination of portion of Kharaba land which ought to have been considered by the authority, particularly when no application with regard to that was made by the petitioners and now, at this stage, not to exercise jurisdiction which is vested under Section 28A of the Act and just to relegate back the petitioners to Section 18 reference is nothing but an example of not exercising jurisdiction, though vested. 7. At this juncture, we may make a reference to certain observations made by the Division Bench of this Court in an order dated 10.4.2018 passed in group of petitions, headed by Special Civil Application No. 3163 of 2018 and in which, in Para. 7 and 8, the Division Bench was pleased to observe that claim cannot be rejected merely stating that petitioners are not entitled to claim any compensation for Kharaba land, especially when no specific Rules were referred to in the proceedings. Here also, no such Rules are pointed out and even if any Rules are framed, the same cannot have overriding effect over the statutory provisions contained under Section 28A of the Act and, therefore, simply to refuse the request under Section 28A of the Act, is nothing but a clear example of non-application of mind, as found by us. 8. On the contrary, we feel it necessary to point out that whenever any application is made under Section 28A of the Act, it is obligatory on the part of Land Acquisition Officer to re-determine the compensation, since the Kharaba land is also covered under the same Notification and as such, we feel it necessary to direct the authority to reconsider and dispose of Section 28A application of the petitioners on its on merits, as early as possible. 9. 9. A close look at the provision contained under Section 28A of the Act makes it clear that the application will have to be considered on the basis of amount of compensation awarded by the Court and the same shall be within a specific period. So considering the fact that Section 28A of the Act as well as the observations made by the Division Bench on earlier occasion, we are of the considered opinion that application submitted by the petitioners deserve to be dealt with on merits, instead of refusing to examine. 10. At this stage, a reference can be made to the observations made in Para. 7 and 8 of Special Civil Application No. 3163 of 2018, as under: "7. From a perusal of the provisions of Section 28A of the Land Acquisition Act, 1894, it is clear that, whenever an application is made for redetermination of compensation based on the award passed by the Reference Court for the cases covered by the same notification, it is obligatory on the part of the Land Acquisition Officer to redetermine the compensation by taking note of the award of the Reference Court for the land covered by the same notification. At the same time, when such statutory benefit is conferred on the claimant, such claim cannot be rejected merely stating that, the petitioners herein, are not entitled for any compensation for Kharaba land referring to rules of the government. No specific rules are referred to in the impugned proceeding. Even if any rules are framed, the same cannot override the provision under section 28A of the Land Acquisition Act, 1894. As much as the application of the petitioners herein, is rejected by the impugned order only on the ground that the applicants-petitioners are not entitled for higher compensation in view of the rules of the government, we deem it appropriate and fit case to allow the petition and quash the impugned order dated 2.6.2017, by remitting the matter to the Land Acquisition Officer for fresh consideration of the application of the petitioners made under section 28A of the Land Acquisition Act, 1894, in accordance with law. 8. It is made clear that this Court has not gone into the merits of the claim of the petitioners. 8. It is made clear that this Court has not gone into the merits of the claim of the petitioners. It is open to the Land Acquisition Officer to consider the application filed by the petitioners under section 28A of the Land Acquisition Act, 1894 on its own merits. The application should be disposed of by the Land Acquisition Officer as expeditiously as possible, preferably within a period of two months from the date of receipt of this judgment. The Special Civil Application No. 3163 of 2018 is allowed to the extent indicated above." 11. In view of the aforesaid observations and in view of independent examination of the order passed by respondent No. 2, we are of the considered opinion that the order impugned dated 22.6.2018 deserves to be set aside with a consequential direction to reconsider and re-decide after granting appropriate opportunity to the parties concerned. 12. While quashing the impugned order dated 22.6.2018 passed by respondent No. 2, as a consequent of it, we direct the authority to pass a speaking order under 28A application submitted by the petitioners on its own merit, without being influenced by the observations made in the impugned order. 13. We expect that such reconsideration exercise will be undertaken by the authority as early as possible, preferably within 3 months from receipt of writ of this Court. 14. While parting with this order, we make it clear that the Court has not expressed any opinion on merit since we have directed the authority to re-consider. 15. In view of the above, present petitions stand allowed to the aforesaid extent.