Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 1790 (GUJ)

Mohmmed Anwar Patel v. State of Gujarat

2022-12-16

ARAVIND KUMAR, ASHUTOSH J.SHASTRI

body2022
ORDER : Aravind Kumar, J. 1. Heard Mr. S.P. Majmudar, learned counsel appearing for petitioner, Mr. K.M. Antani, learned Assistant Government Pleader appearing for respondent Nos.1, 2, 4, 5 and 6 and Mr. Maulik Nanavati, learned counsel appearing for respondent No.3. 2. Short issue that arises for consideration in this petition is as to whether application of petitioner who sought for payment of compensation ought to have been referred to Civil Court under sub-section (4) of Section 3H of National Highways Act, 1956 or not? 3. Petitioner claiming to be in possession and being owner of land bearing Block No.547 admeasuring 0-77-90 Hectare-Guntha-Are situated in village Dayadra, Taluka and District Bharuch is seeking for payment of compensation of said land which came to be acquired by 3rd respondent for Vadodara-Mumbai Expressway, which had resulted in passing of an award on 27.6.2017 for a sum of Rs.25,05,017/-. 4. An application came to be filed by the petitioner on 20.2.2018 requesting for payment of compensation. It was specifically contended that applicant had remained present during the process of acquisition of said land and had extended his full cooperation for said acquisition and claiming right title and possession over the subject property sought for payment of compensation. Documentary evidence in support of said claim was appended to said representation. An alternate prayer was also made under said representation, which reads thus : “Applicant also submits that if competent authority finds any difficulty in making payment to the applicant, the amount of compensation should be deposited with the Court of Principal Senior Civil Judge, Bharuch by making a reference under the provisions of Section 3H(4) of the National Highways Act, 1956.” 5. Said representation came to be examined and rejected on the ground that possession of the subject land was not with petitioner but was with Mr. Adam Muse Amanji. Petitioner seems to have pursued his grievance with Special Land Acquisition Officer and this resulted in yet another communication being forwarded by said office to the petitioner on 23.10.2018 (Annexure-F) stating thereunder that Special Land Acquisition Officer has no right to decide title of the land and entitlement of compensation amount. Said decision as per communication dated 23.10.2018 is based on the opinion of District Government Pleader. Hence, petitioner is before this Court. 6. Learned counsels appearing for the parties have reiterated their contentions as urged in the respective pleadings. Said decision as per communication dated 23.10.2018 is based on the opinion of District Government Pleader. Hence, petitioner is before this Court. 6. Learned counsels appearing for the parties have reiterated their contentions as urged in the respective pleadings. Since the impugned order disclose that according to the Special Land Acquisition Officer, possession of the subject property was with one Mr. Adam Muse Amanji, as reflected from the revenue records, this Court entertained a doubt as to whether compensation has been disbursed in his favour or anybody else. Today, learned Assistant Government Pleader submits that compensation has not been disbursed either in favour of Mr. Adam Muse Amanji or anybody else in respect of subject property. His submissions is placed on record. However to stave off any technical plea being raised, we permitted the petitioner to take out notice to said person also namely Mr. Adam Muse Amanji by substituted service, namely through paper publication and Civil Application 1 of 2022 filed for said purpose came to be allowed vide order dated 5.5.2022. 7th respondent was duly served and there has been no representation and as he such he has been placed ex-parte. 7. Having regard to the language employed in sub-section (4) of Section 3H of the National Highways Act, which clearly mandates that on determination of the amount under Section 3G, which in the instant case had crystallized by way of an award dated 27.6.2017, the amount so determined by way of award was required to be deposited by the Central Government with the competent authority before taking possession of the land, which is said to have been done. When a claim is made by a person interested in amount so deposited, the competent authority would be required to determine the entitlement of such person who in its opinion is entitled to receive amount payable to each of them, if there are more than one claimant. In other words, if there are several claimants staking their claim for the amount of award so deposited, competent authority would be required to determine as to apportionment or entitlement of each person. However, if any dispute were to arise as to the apportionment of amount or any part thereof or to whom same is payable or any part thereof is payable, competent authority would be required to refer such dispute to the decision of Principal Civil Court of the original jurisdiction. However, if any dispute were to arise as to the apportionment of amount or any part thereof or to whom same is payable or any part thereof is payable, competent authority would be required to refer such dispute to the decision of Principal Civil Court of the original jurisdiction. 8. In the instant case, petitioner herein undisputedly submitted a representation on 20.2.2018 (Annexure-C) demanding or praying for payment of compensation so determined under Section 3G. At the first instance, as already noticed herein-above, on 9.3.2018, said request was rejected on the ground that revenue records reflected possession of the subject land not being with the petitioner but in possession of one Mr. Adam Muse Amanji. In fact, petitioner has appended to the representation dated 20.2.2018 all relevant records to substantiate his claim asserting his ownership. Thus, at first available opportunity the competent authority on receipt of representation dated 20.2.2018 ought to have referred the dispute to the jurisdictional Civil Court as contemplated under sub-section (4) of Section 3H, if he were of the opine that there was a dispute with regard to title or dispute with regard to entitlement of compensation. On the other hand, said representation of petitioner for payment of compensation came to be rejected on the ground that possession was not with the petitioner and called upon the petitioner to get the revenue records corrected and then file claim for compensation. Obviously, on account of revenue records already tendered, having not been considered by the competent authority, perforced the petitioner to reiterate his claim and as such requested the Special Land Acquisition Officer to re-examine issue in the background of revenue records which reflected petitioner’s name. This resulted in second communication being forwarded to petitioner on 23.10.2018 (Annexure-F) referred to herein (supra). It would be in benefit to note at the cost of repetition that request of petitioner was turned down by Special Land Acquisition Officer since he had obtained opinion of the District Government Pleader with regard to title of the land vis-a-vis compensation payable to the petitioner. It would be in benefit to note at the cost of repetition that request of petitioner was turned down by Special Land Acquisition Officer since he had obtained opinion of the District Government Pleader with regard to title of the land vis-a-vis compensation payable to the petitioner. It is on account of opinion rendered by the District Government Pleader, Special Land Acquisition Officer though rightly arrived at a conclusion that he has no right to decide the title of the land and entitlement of the petitioner to receive compensation, instead of discharging the statutory obligation or complying with the statutory mandate as prescribed under sub-section (4) of Section 3H, he took recourse to direct the petitioner to approach the Civil Court which ought not to have been done as such, impugned communications dated 23.10.2018 as well as 9.3.2018 would not be sustainable. We are of the considered view that respondent-Special Land Acquisition Officer ought to have referred the issue to the Civil Court for its adjudication. Said exercise having not been done, impugned communications are liable to be quashed. Hence, following order:- ORDER (1) Special Civil Application is ALLOWED. Impugned communication dated 9.3.2018 (Annexure-D) and communication dated 23.10.2018 (Annexure-F) issued by 2nd respondent are hereby quashed. (2) 2nd respondent is directed to refer the dispute to the jurisdictional Principal Civil Court expeditiously and at any rate within an outer limit of TWO WEEKS from the date of receipt of copy of this order. (3) We make it clear that we have not expressed any opinion on merits with regard to claim of the petitioner and we make it clear that Civil Court would be at liberty to proceed to adjudicate the claim on such reference being made without being influenced by any of the observations,. (4) No order as to costs.