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2021 DIGILAW 1159 (GUJ)

FOGATBHAI RAVJIBHAI VASAVA v. STATE OF GUJARAT

2021-12-08

ARAVIND KUMAR, ASHUTOSH J.SHASTRI

body2021
ORDER : ARAVIND KUMAR, J. 1. On account of an application having been filed for hearing this matter expeditiously, we have taken up this Special Civil Application for final disposal by consent of learned advocates appearing for the parties. 2. We have heard Ms. Kruti M. Shah, learned counsel appearing for the petitioners and Mr.Tirthraj Pandya, learned Assistant Government Pleader appearing for the State. 3. Petitioners have sought for the following reliefs: "9.(a)....... (b) Issue appropriate, writ, order or direction for quashing and setting aside all Land Acquisition proceedings in respect of award passed u/s.11 of the Land Acquisition Act on 04.09.1986 by the Land Acquisition Officer. (c) issue appropriate, writ, order or direction for quashing and setting aside all Land Acquisition proceedings in respect of award passed u/s. 11 of the Land Acquisition Act on 04.09.1986 by the Land Acquisition Officer u/s. 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 on the ground that the said Land Acquisition Proceedings are lapsed. (d) issue appropriate, writ, order or direction for re-grant of the lands to the petitioners in view of failure on the part of the State of Gujarat to comply with the directions given by the Hon'ble Supreme Court of India vide order dated 11.04.1988 passed in Civil Appeal No.1432 of 1988; (e) ...... (f) ......" 4. It is the contention of Ms. Kruti M. Shah, learned counsel appearing for the petitioners that petitioners are the owners of the land bearing Survey No. 206/1 (New No.244), Survey No. 188 (New No.251), Survey No. 203 (New No.246), Survey No. 194 (New No.248) and Survey No. 195/1 (New No.247) situated at Village Jeetnagar, Taluka Nandod, District Narmada and they are in actual and physical possession and enjoyment of the said property. It is also contended, though lands were acquired, physical possession having not been taken petitioners would be entitled to the benefit of Sub-Section (2) of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short the "Act"). Hence, she has sought for the reliefs sought for being granted. It is also contended, though lands were acquired, physical possession having not been taken petitioners would be entitled to the benefit of Sub-Section (2) of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short the "Act"). Hence, she has sought for the reliefs sought for being granted. She would also submit that in the earlier round of litigation when the acquisition was under challenge, matter got landed before the Hon'ble Apex Court and an order came to be passed on 11.04.1988 directing the State to allot alternate land to petitioners which has not been done and as such petitioners are entitled to the relief sought for in the Special Civil Application. 5. Per contra the learned Assistant Government Pleader would submit that petition is liable to be dismissed on the ground of delay and laches and the acquisition proceedings have attained finality petitioners cannot revive their prayer for acquisition being set aside. He would hasten to add that direction issued by the Hon'ble Apex Court dated 11.04.1998 in Civil Appeal No. 1432 of 1988 would be complied by the respondents as undertaken in paragraph No. 14 of the affidavit dated 12.01.2021. Hence, he prays for dismissal of the petition and / or suitable orders being passed in that regard. 6. Having regard to the rival contentions raised at the Bar, it requires to be noticed at the outset that petitioners have no right to question the acquisition and seek for award passed under Section 11 of the Land Acquisition Act, 1894 being quashed or the acquisition proceedings being declared as having lapsed in view of subsequent legislation by relying upon Section 24(2) of the Act, inasmuch as acquisition proceedings has attained finality before the Hon'ble Apex Court in Civil Appeal No. 1432 of 1988 vide order dated 11.04.1988. Now what requires to be done by the State is to provide 50% of the land to each of the appellants calculated on the basis of the land acquired from each of them and as more specifically stated in the order dated 11.04.1988. For immediate reference, the order of the Hon’ble Apex Court dated 11.04.1988 is extracted hereinbelow: "ORDER Special leave granted. Heard learned counsel for the parties. For immediate reference, the order of the Hon’ble Apex Court dated 11.04.1988 is extracted hereinbelow: "ORDER Special leave granted. Heard learned counsel for the parties. It is agreed that the State of Gujarat would provide 50% extent of land to each of the appellants calculated on the basis of the land acquired from each of them. Such land should be cultivable and certified by the District Agricultural officer to be such and the land should not be located at a distance beyond 10 Kms., of the limit of the submerged area of the dam. The appeal is accordingly disposed of. This may not be treated as a precedent. No costs. Ranganath Misra, Murari Mohan Dutt, JJ. New Delhi April 11, 1988" 7. It is in pursuance to above said order and during the pendency of said proceedings before the Hon'ble Apex Court, a communication has been forwarded by the respondents to the petitioners to select the traverse land of the State Government and on account of petitioners having not selected any land, the claim of the petitioners for allotment of 50% of the land acquired has been kept in cold-storage. 8. No-doubt this petition is filed belatedly, namely, after 40 years and on this short ground itself, petitioners are liable to be non-suited in the light of the law laid down by the Hon'ble Apex Court in the case of Karnataka Power Corporation Limited versus K. Thangappan and Another reported in (2006) 4 SCC 322 whereunder their Lordships have held that submitting of memorials or representations cannot justify a belated approach. In other words, the cause of action for the petitioners to seek alternate land having arisen on 11.04.1988, namely, on the date the Hon'ble Apex Court passed the aforesaid order and the petitioners claim to have submitted memorials or representations to the authority would not revive the dead cause of action. In fact, this proposition also gets support from two other judgments of the Hon'ble Apex Court in the case K. V. Rajalakshmiah Setty & Another versus State of Mysore and Another reported in AIR 1967 SC 993 and in the case of Rabindranath Bose and Others versus Union of India and Others reported in AIR 1970 SC 470 and on this short ground itself, the petition can be dismissed. However, we do not propose to do so, for reasons more than one. However, we do not propose to do so, for reasons more than one. Firstly, petitioners who are illiterate, not being conversant with the worldly affairs and not being conversant with court-craft and they being Adivasis and there being an order already passed by the Hon'ble Apex Court on 11.04.1988 directing the State to provide 50% of the land acquired as more fully ordered thereunder, it would be travesty of justice if State is allowed to take a stand that said order would not be implemented. Secondly, in the affidavit filed by the State and it is agreed thereunder to allot 50% of land acquired. Hence, we deem it proper to dispose of this petition by recording the said undertaking, which is to the following effect:- "13. It is humbly submitted that in the year 2017 again as per the direction of Hon'ble Apex Court the deputy Collector addressed a communication dated 23.08.2017 to the Collector Rajpipla requesting to take further appropriate steps. copy of the communication dated 23.08.2017 is annexed hereto and marked as Annexure-R9. 14. It is humbly submitted that the deponent undertakes to allot the land to the petitioners as per the order passed by the Hon'ble court and the deponent further undertakes to carry out any improvements which are required within time stipulated by this Hon'ble court provided that the applicants agree for getting such land as directed by Hon'ble Apex Court." (Emphasis Supplied by us) 9. Above undertaking given by the State would clearly indicate that respondent has undertaken to allot land to the petitioners as per the orders passed by the Hon'ble Apex Court on 11.04.1988. Hence, we dispose of this petition as under: (i) Special Civil Application is allowed in part . (ii) Respondents No.2 and 3 shall consider the claim of the petitioners as directed by the Hon'ble Apex Court in Civil Appeal No.1432 of 1988 on 11.04.1988 (Annexure-B) and pass orders thereon expeditiously, at any rate, within an outer-limit of one month from the date of receipt of copy of this order. (ii) Respondents No.2 and 3 shall consider the claim of the petitioners as directed by the Hon'ble Apex Court in Civil Appeal No.1432 of 1988 on 11.04.1988 (Annexure-B) and pass orders thereon expeditiously, at any rate, within an outer-limit of one month from the date of receipt of copy of this order. It is made clear that petitioners shall appear before respondent No.3 on 24.12.2021 without waiting for any further notice from the office of the second respondent and it is made clear that in the event of petitioners failing to appear on the said date, the respondent No.3 shall proceed to process the claim of the petitioners and pass appropriate orders within the time limit fixed hereinabove. (iii) Insofar the prayer for acquisition being set aside, the award dated 04.09.1996 passed under Section 11 of the Land Acquisition Act, 1894 as well as the acquisition proceedings having lapsed by virtue of Section 24(2) of the Act stands rejected or in other the words, the prayer made in that regard stands dismissed / rejected. No order as to costs. 10. In view of the order passed in the main matter, Civil Application (for fixing date of hearing) No.1 of 2021 does not survive and stands rejected accordingly.