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2023 DIGILAW 471 (GUJ)

Jashiben Lallubhai Patel v. Competent Authority, Nhai

2023-03-15

A.J.DESAI, BIREN VAISHNAV

body2023
ORDER : (Biren Vaishnav, J.) 1. In all these petitions, RULE is made returnable forthwith and with the consent of the learned counsel for the respective parties, the matters are taken up for final hearing. 2. For the averments made in the application, the Civil Application for joining party in Special Civil Application No.26651 of 2022 is hereby allowed. 3. The common issue involved in all these petitions is as to whether the awards passed in the respective petitions need to be modified/amended/revised and the compensation be recomputed and recalculated qua the lands of the petitioners by multiplying the market value as determined under Section 26(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be referred to as ‘the Act of 2013’ for short) with Factor-2 as per Section 26(2) and applying all other statutory benefits including solatium under Section 30(1), interest under Section 30(3) of the Act and to determine and pay such compensation with interest as per the award ratio laid down by this Court in Special Civil Application No.8734 of 2019 and other cognate matters decided on 12.09.2019. 4. Since the issues involved in all these petitions are common and are already decided by this Court in the case of Dhiraj A. Patel v. State of Gujarat and Ors. reported in 2020 (1) GLR 752 , facts in each petitions are not extensively discussed. 5. We have heard learned counsel for the respective petitioners and Mr.Maulik Nanavati learned advocate appearing for the National Highways Authority of India and learned AGPs appearing for the State. 6. It is the case of the petitioners in all these petitions that their lands were acquired under the provisions of the Act of 2013 and awards were passed in the respective petitions awarding compensation under the Act. It is undisputed even as submitted by the learned AGPs appearing in the respective petitions that the lands which are acquired and the awards which have been passed in all these petitions, are within the respective ‘rural areas’ and therefore eligible to a multiplying Factor-2. 7. It is undisputed even as submitted by the learned AGPs appearing in the respective petitions that the lands which are acquired and the awards which have been passed in all these petitions, are within the respective ‘rural areas’ and therefore eligible to a multiplying Factor-2. 7. Multiple orders have been passed by this Court relying on the decision in the case of Dhiraj A. Patel (supra) directing the respondents to give a fresh award in all cases keeping in mind the directions contained in paras 19, 20 and 21 of this judgement in the aforesaid case of Dhiraj A. Patel (supra). 8. Mr.Maulik Nanavati learned advocate appearing for the National Highway Authority of India vehemently opposed that similar orders cannot be passed in petitions where either the schedule of the award has not been annexed or in case where all the land owners/beneficiaries of the award have filed such petition. He would submit that where only some of the beneficiaries of the award have approached this Court, directions cannot be issued in light of the decision in case of Dhiraj A. Patel (supra) as, the competent authority/the National Highway Authority will have to redetermine the compensation and review the award though it has no such power under Section 3(G) of the National Highways Act, 1956. He would submit that once an award has been passed by the competent authority, the officer would become functus-officio and therefore a direction to recompute the compensation would necessarily amount to reviewing the award which the Court cannot direct. In support of his submissions, Mr.Nanavati would rely on a decision in case of Jyoti Warehousing – through its partner v. State of Gujarat and Ors. rendered in Special Civil Application No.6034 of 2015 and allied matters decided by a Division Bench of this Court by an oral judgement dated 24-31.01.2018. 9. In support of his submissions, Mr.Nanavati would rely on a decision in case of Jyoti Warehousing – through its partner v. State of Gujarat and Ors. rendered in Special Civil Application No.6034 of 2015 and allied matters decided by a Division Bench of this Court by an oral judgement dated 24-31.01.2018. 9. Considering the submissions made by the learned counsel for the respective parties, it is indeed surprising that despite the issue being concluded inasmuch as, the decision in the case of Dhiraj A. Patel (supra) has been confirmed by the Supreme Court, the counsel for the National Highway Authorities of India would oppose the granting of such prayers when in series of orders as referred to herein above, this Court has followed the decision in case of Dhiraj A. Patel (supra) and issued directions to redetermine the compensation and modify the awards and pay the amounts to such beneficiaries of the awards by applying Factor-2 and pay such compensation with all statutory benefits including solatium under Section 30(1), interest under Section 30(3) under the Act 2013. 10. The exercise of application of Factor – 2 and recomputing the compensation by applying Factor – 2 under Section 26(2) of the Act shall not amount to reviewing or modifying the award. What is in fact, being undertaken is that the awards in question irrespective of the parties concerned are being modified and/or revised by multiplying the market value as determined under Section 26(1) of the Act of 2013 with Factor-2 as per Section 26(2) of the Act in light of the position of law set out in the case of Dhiraj A. Patel (supra). At this stage, it needs to be noted that in light of the position of law decided by this Court in that case, the authorities are expected to apply Factor-2 in all cases where the lands fall within rural areas and the awards accordingly need to be modified if the compensation has been paid in such cases by multiplying the market value and applying Factor-2 without compelling the parties or the beneficiaries of such awards to approach this Court. 11. 11. For all the aforesaid reasons, the petitions are allowed with a direction to the competent authority/land acquisition officer under National Highways Act, 1956 to give a fresh award in all cases keeping in mind the decision and the directions in the case of Dhiraj A. Patel (supra) within a period of eight weeks from the date of certified copy of this order being filed by the petitioners before the competent authority. If the petitioners are entitled to the benefit of Factor-2, the respondent NHAI is directed to deposit the amount with the competent authority for disbursement to the petitioners within 21 days from the date of such awards. 12. It is clarified that if the petitioners have moved for re-determination of compensation before the Arbitrator under Section 3G(5) of the National Highways Act, 1956, the petitioners will not insist for Factor-2 claim, or in the alternative, the respondents may be permitted to appraise the Arbitrator of the said issue so that there is no further multiplicity or complications in the proceedings. 13. All the petitions are allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.