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2021 DIGILAW 249 (GUJ)

Mansangh Baghubhai Barad v. State of Gujarat

2021-03-23

A.C.RAO, N.V.ANJARIA

body2021
JUDGMENT : N.V. Anjaria, J. Heard learned advocate Mr. Chinmay Gandhi for the petitioner and learned Assistant Government Pleader Ms. Divyangna Jhala for the respondent State and its authorities. 2. The petitioner herein has prayed to set aside the order dated 13.7.2020 passed by the Deputy Collector and Special Land Acquisition Officer, Narmada Yojna, Ahmedabad, whereby the said authorities have rejected the application of the petitioner filed under Section 28A of the Land Acquisition Act, 1894, for redetermination of the compensation. 3. The case of the petitioner is that 1050 sq.mtrs of land out of his lands bearing survey No.381/1 situated at Village Kolat, Talula Sanand, District Ahmedabad, came to be acquired for construction of distributory canal at Kolat. Notifications under Section 4 and 6 of the Land Acquisition Act, 1894 came to be issued, pursuant to which the Land Acquisition Officer passed award dated 20.1.2011 under Section 11 of the Act in Acquisition Case No.156 of 2010. 3.1 The other persons whose lands were also acquired under the same notifications, made Reference under Section 18 before the District Court. The said Reference Case Nos.296 of 2012 to 305 of 2012 was placed before the Lok Adalat in which settlement was arrived at and the additional compensation of Rs.273/-per sq.mtrs came to be awarded together with the solatium and other statutory benefits. The District Court accordingly passed award on 9.9.2017 enhancing the compensation. 3.2 The petitioner thereafter made application under Section 28A of the Act before the respondent No.1 authority who refused to grant the application. When the said impugned order dated 13.7.2020 is seen, it is reasoned by the authority that the petitioner had entered the names of his wife, two daughters and one son as co-owners of the land and that mutation entry to that effect was made on 30.1.2014. It is further recorded that subsequently on 22.12.2014 as per revenue entry No.4044, all the account holders except son Jagdishbhai Mansangh had forgone their share in the property. It was therefore stated so as to reject the application under Section 28A of the petitioner that the petitioner did not have any right in the land at that time when the petitioner made his application under Section 28A of the Act. 4. It was therefore stated so as to reject the application under Section 28A of the petitioner that the petitioner did not have any right in the land at that time when the petitioner made his application under Section 28A of the Act. 4. Learned advocate for the petitioner submitted that the land was not sold to anybody but names of the family members were entered and the entries in that respect were mutated which was out of mutual understanding amongst the family members. It was submitted that there is no quarrel amongst the members of the family. It was further averred and submitted that son Jagdishbhai had filed affidavit before the authority declaring his consent for giving compensation to the petitioner only which affidavit was disregarded by the authority while declining the application under Section 28A of the Act. It was next submitted that the name of the petitioner was on record when the award was made. 4.1 On the other hand learned Assistant Government Pleader supported the order to submit that since the names of family members were entered in respect of the land, the petitioner ceased to be interested person. 5. Section 28A of the Land Acquisition Act, 1894 provides for redetermination of the amount of compensation on the basis of the award of the Court. It says that whether the award is passed by the Court paying the amount of compensation in excess than the amount awarded by the Collector under Section 11 the persons interested in all other land covered under the same notification would be entitled to get the compensation for them redetermined on the lines of the award of the Court at the enhanced rate. Since the petitioner was entitled to seek the benefit of said provision to get the enhanced compensation, he made his application which however came to be rejected by the Special Land Acquisition Officer on the above ground. 5.1 The rejection of the application of the petitioner under Section 28A of the Act on the reasons supplied that such rejections are evidently erroneous. 5.1 The rejection of the application of the petitioner under Section 28A of the Act on the reasons supplied that such rejections are evidently erroneous. While the aspect that the son Jagdishbhai had filed affidavit to give consent for the payment of redetermined compensation at the enhanced rate to the petitioner, may have its own bearing and relevance, even otherwise, the petitioner is independently entitled to get the compensation at the enhanced rate and to get his application for redetermination granted by the authority. 5.2 Undisputedly, the petitioner was the owner and his name stood in the records when Notification under Section 4 was issued and when the award was passed by Land Acquisition Officer on 20.1.2011 under Section 11 of the Act. The enhanced compensation awarded by the Reference Court as per award would relate back to the date of award passed by the Land Acquisition Officer to entitle all those persons and land owners whose names figured in the award of the Land Acquisition Officer. The name of the petitioner was there in the village form and at the point of time when the award came to be passed by Land Acquisition Officer. 5.3 The petitioner is “person aggrieved” within the meaning of such phrase occurring in Section 28A of the Act and for the purpose of entitling the benefit of provision. The right to get the additional compensation as per the award of the Reference Court passed in similar cases under the same Notification would accrue for the petitioner. 6. Resultantly, the impugned order dated 13.7.2020 passed by the Deputy Collector & Special Land Acquisition Officer, Narmada Yojna, Ahmedabad rejecting the application of the petitioner under Section 28A of the Act together with the grounds mentioned for such rejection, are hereby set aside. 6.1 The Deputy Collector & Special Land Acquisition Officer, Narmada Yojna, Ahmedabad, is directed to reconsider the application of the petitioner and pass fresh orders within six weeks from the date of receipt of the present order. The redetermined enhanced compensation as may be payable thereafter shall be paid to the petitioner within further period of four weeks from the date of such decision. 7. The present petition is allowed in terms and the directions as above. Direct service is permitted.