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2024 DIGILAW 123 (GUJ)

NAVUBA WD/O JORUBHA UDESANG v. STATE OF GUJARAT

2024-01-16

ANIRUDDHA P.MAYEE, SUNITA AGARWAL

body2024
JUDGMENT : SUNITA AGARWAL, J. 1. Heard Mr. M.B. Gandhi, the learned Senior Counsel assisted by Mr. C.M. Gandhi, the learned advocate for the petitioners and perused the record. 2. Having perused the record of the writ petition namely, Special Civil Application No. 1577 of 2020 placed before us by the office pursuant to the order dated 18.12.2023, we find that the said writ petition had been disposed of vide judgment and order dated 19.2.2020 along with other two Special Civil Applications/writ petitions, on the premise of nonpayment of compensation or drawing acquisition proceedings before entering over the land of the petitioners therein. While noticing the stand of the petitioners therein, it was noted by the Court that admitted fact of the matter is that the possession of the lands of the petitioners had been taken without drawing any acquisition proceedings and in view of the letter dated 11.2.2020 of the Dy. Collector and Special Land Acquisition Officer, Narmada Project to the Additional Collector, Narmada Project, for initiation of the acquisition proceedings of the lands in question. In light of the above, on the statement made by the learned Assistant Government Pleader, the matter was disposed of with the observation that the respondents shall complete the acquisition process and declare the award to determine the compensation in accordance with the provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [“Act of 2013” for short]. 3. The judgment and order dated 19.2.2020 is sought to be pressed into service by the petitioners in the present petition with the assertion that the Special Civil Application No. 1577 of 2020 was filed by Baldevbhai Chakarchand Chauhan stating that the petitioner therein was owner of Survey/Block No. 1506/P/1 and in respect to the said land total admeasuring 12,444 sq. mts. in the Village Form No. 7/12 the name of the petitioner therein was indicated along with other family members. Further, the land admeasuring 2,220 sq. mts. out of the total area of Survey/Block No. 1506/P/1 indicated therein, had gone into acquisition for Narmada Project. mts. in the Village Form No. 7/12 the name of the petitioner therein was indicated along with other family members. Further, the land admeasuring 2,220 sq. mts. out of the total area of Survey/Block No. 1506/P/1 indicated therein, had gone into acquisition for Narmada Project. It was asserted therein that though the possession of the land of the petitioner therein was taken, but due to oversight the land acquisition proceedings begun only for Survey No. 1506/P and not for Survey No. 1506/P/1 and the award was passed qua the land in Survey No. 1506/P in the name of Jorubha Udesang Jhala, i.e. the petitioner in Special Civil Application No. 18570 of 2023 (the instant writ petition). The prayer had been made in the said writ petition that the land in Survey No. 1506/P/1 admeasuring 2,220 sq. mts. had been utilized for Narmada Project without undertaking acquisition proceedings, and hence the petitioner therein was entitled for compensation. 4. It seems that taking note of the averments made in the aforesaid writ petition, the present petition has been presented on 11.9.2023 and registered on 18.10.2023, for the reliefs prayed herein-under: “23(A) This Hon’ble Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, and be pleased to direct the Government to return back the land bearing survey No. 1506/P which was not needed and was not required to be acquired for Narmada Canal Project. (B) By an appropriate writ, order or direction, this Hon’ble Court may be pleased to direct the Government that the commitments, which are made before the Court regarding the turning of the land be complied with and the land bearing Survey No. 1506/P be directed to be returned to the petitioners. (C) By an appropriate writ, order or direction, this Hon’ble Court may be pleased to hold and declare that the decision of the Government dated 12.06.2023 (Annexure-K) as well as the order dated 12.06.2023 (Annexure-L) passed by the Deputy Collector and the Land Acquisition Officer are erroneous, illegal, contrary to facts and law and be further pleased to quash and set-aside the same. (D) In the alternative by an appropriate writ, order or direction, this Hon’ble Court may be pleased to direct the government to amend the award and release the land and drop the land bearing Survey No. 1506/P from the acquisition. (D) In the alternative by an appropriate writ, order or direction, this Hon’ble Court may be pleased to direct the government to amend the award and release the land and drop the land bearing Survey No. 1506/P from the acquisition. (E) This Hon’ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction holding and declaring that the award dated 30.09.2011 qua the land bearing Survey No. 1506/P of the present petitioners is without jurisdiction, without any public purpose and without any need of the government and therefore, be pleased to quash and set-aside the award dated 30.09.2011 qua the land bearing Survey No. 1506/P of the petitioner, as it is without possession and without payment of compensation. (F) Pending admission, hearing and/or final disposal of this petition, this Hon’ble Court may be pleased to direct the respondent authorities to maintain status-quo qua the land bearing Survey No. 1506/P admeasuring 2220 sq. mtrs. of Mouje village Sanand, Taluka Sanand, District Ahmedabad. (G) Such other and further orders as this Hon’ble Court may deem just, fit and expedient be passed in favour of the petitioners. (H) Costs of this petition be provided for to the petitioners.” 5. To press the relief seeking for release of the land in question, the assertions in the instant writ petition are that as per the statement made in Special Civil Application No. 1577 of 2020, the land in question namely, Survey No. 1506/P had not been utilized for the project. The contention in the instant writ petition is that the land bearing Survey No. 1506 was divided in two parts, one part named as Survey No. 1506/P admeasuring 12,343 sq. mts. and another part named as Survey No. 1506/P/1 admeasuring 10,224 sq. mts. It is further stated that the Narmada Canal does not pass through the land in question namely, Survey No. 1506/P belonging to the petitioners herein. It is stated that since the adjoining owner of Survey No. 1506/P/1 had stated that his land was not acquired but utilized and a decision was taken in the writ petition filed by him vide judgment and order dated 19.2.2020, it is clear that the land in Survey No. 1506/P has never been utilized. The prayer has, thus, been made to release the land in question in favour of the petitioners herein. 6. The prayer has, thus, been made to release the land in question in favour of the petitioners herein. 6. We may note that there is a categorical assertion in the writ petition that pursuant to the acquisition Notifications under Sections 4 and 6 of the Land Acquisition Act, 1894, an award dated 30.9.2011 for the land bearing Survey No. 1506/P admeasuring 2,220 sq. mts. had already been passed. The notice dated 13.10.2011 under Section 12(2) was issued to the predecessor in interest of the petitioners herein. We may note that the petitioners claim to be heirs and legal representatives of the original owner in whose name the award was passed on 30.9.2011. There is no clarification as to why the award was not challenged by the original owner during his lifetime. The date of death of the original owner is not on record. We may further note that the petitioners herein had filed an earlier writ petition with the similar relief as sought in the instant writ petition. The said writ petition was registered as Special Civil Application No. 4368 of 2022 and has been decided vide judgment and order dated 13.4.2023 wherein a direction has been given to the respondent authorities namely, the Principal Secretary, Narmada Water Resources, Water Supply and Kalpsar Department namely, respondent No. 1 therein to pass appropriate order within a period of eight weeks from the date of receipt of the copy of the said order. 7. The order impugned dated 12.6.2023 has been passed by the Dy. Collector and Special Land Acquisition Officer, Narmada Project noticing therein that there is no policy of return of the acquired land; the earlier policy of re-grant prepared by the State Government had been quashed by the Apex Court vide judgment and order dated 1.12.2017. In light of the above, the application dated 12.4.2021 moved by the petitioners herein pursuant to the judgment and order dated 13.4.2023 passed in the previous writ petition, has been rejected, noticing that there is no policy for re-grant of the acquired land. The opinion has, thus, been drawn that Survey No. 1506/P admeasuring 2,220 sq. mts. has been acquired for the purpose of project namely, Narmada Project and the acquisition proceedings have been concluded with the declaration of the award dated 30.9.2011, the land in question cannot be returned back to the petitioners. 8. The opinion has, thus, been drawn that Survey No. 1506/P admeasuring 2,220 sq. mts. has been acquired for the purpose of project namely, Narmada Project and the acquisition proceedings have been concluded with the declaration of the award dated 30.9.2011, the land in question cannot be returned back to the petitioners. 8. As noted hereinabove, in the instant writ petition, only ground taken to challenge the order passed by the competent authority in rejecting the application of the petitioners for return of the acquired land, is that in the previous writ petition filed by the owner of the neighbouring land it was observed by this Court that the said land namely, Survey No. 1506/P/1 had been utilized for the project in question and compensation, as such, was directed to be paid to such person. 9. It is further stated in the instant writ petition that in any case, from the facts brought on record and the communication dated 12.4.2021 of the Dy. Collector and Special Land Acquisition Officer addressed to the State Government, it is clear that the land in question in Survey No. 1506/P belonging to the petitioners has never been utilized for the Narmada Project. It is, thus, vehemently argued by the learned Senior Counsel appearing for the petitioners that the land which is wrongly mentioned in the notification for acquisition and was not needed for the project and has not been utilized, is required to be returned to the petitioners herein. 10. Testing this submission, pertinent is to note that as per the own contention of the petitioners, the land in question namely, Survey No. 1506/P admeasuring 2,220 sq. mts. was part of the land acquisition proceedings and was included in Sections 4 and 6 notifications for acquisition. The award with respect to the said land was declared on 30.9.2011 and notice under Section 12(2) was issued on 13.10.2011 in the name of the original owner, the predecessor in interest of the petitioners herein. The fact remains that with the passing of the award and taking of the possession of the land in question namely, Survey No. 1506/P admeasuring 2,220 sq. mts. the land acquisition proceedings have been brought to their logical conclusion. The fact remains that with the passing of the award and taking of the possession of the land in question namely, Survey No. 1506/P admeasuring 2,220 sq. mts. the land acquisition proceedings have been brought to their logical conclusion. The communication made by the Special Land Acquisition Officer to the learned Assistant Government Pleader at a later point of time namely the communication dated 12.4.2023 cannot be made basis to assert that the land in question is required to be released. 11. It is trite in law that the acquisition proceedings once completed and the possession of the subject matter of the land is taken, even the State Government has no power to release the acquired land in view of Section 48 of the Land Acquisition Act, 1894, which reads as under: “48. Completion of acquisition not compulsory, but compensation to be awarded when not completed: (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.” 12. It is also settled law that the land acquired for one public purpose can be used for another public purpose. In a completed acquisition, it is not possible for the State Government to release the acquired land in favour of the original owner. We, therefore, do not find any error in the decision of the Special Land Acquisition Officer in rejection of the claim of the petitioners vide order dated 12.6.2023, which further records that the policy of the State Government for re-grant of the acquired land has been quashed by the Apex Court. 13. There is no question of dropping of the acquisition proceedings on the premise that the land in question has not been utilized for the project in question. 14. 13. There is no question of dropping of the acquisition proceedings on the premise that the land in question has not been utilized for the project in question. 14. For the above reasons, in view of the language employed in Section 48 and the settled law with regard to release of the acquired land under the Land Acquisition Act, 1894, we do not find any merits in the present petition. 15. Moreover, the petitioners herein are not the original owner of the land in question. The original owner did not raise any dispute during his lifetime when the award was made in the year 2011 and the acquisition proceedings were brought to their logical end. There is no mention of the date of death of the original owner before us in the writ petition. 16. At this stage, it is further vehemently submitted by the learned Senior Counsel appearing for the petitioners that the stand of the Government to return the land in Survey No. 1506/P, belonging to the petitioners, was clear from the communication dated 5.3.2012 onwards which are appended along with the writ petition. A reference has been made to the letter dated 5.3.2012 at page ‘26’ of the paper book which is addressed to the Dy. Executive Engineer, Narmada Canal Project wherein it is stated that the land in Survey No. 1506/P has not been utilized and a correction in the award is required to be made. From the communication dated 5.3.2012, it cannot be ascertained that the said letter was written on the application moved by the petitioners or their predecessor in interest. It seems that the said application was moved by the tenure holder named as Takhatsang Chaharsang Chauhan with the assertion that in the Section 4 Notification, Survey No. 1506/P area 0.22.20 belonging to Jorubha Udesangbhai/Rajuba Udesangbhai namely, predecessor in interest of the petitioners herein, had been acquired. We may note that the said communication was made on the application given by the tenure holder of Survey No. 1506/P/1 and not of the petitioners or their predecessor in interest. No benefit, in our considered opinion, therefore, can be derived from the averments in the communication dated 5.3.2012 which was sent by the Special Land Acquisition Officer, Narmada Project to the Dy. Executive Engineer of the concerned Project. 17. No benefit, in our considered opinion, therefore, can be derived from the averments in the communication dated 5.3.2012 which was sent by the Special Land Acquisition Officer, Narmada Project to the Dy. Executive Engineer of the concerned Project. 17. Further submission is based on the communication dated 7.11.2014 which is appended at page ‘30’ of the paper book which seems to have been issued by the Dy. Executive Engineer, Narmada Project to the Additional District Land Inspector, Narmada Project wherein it is stated that a correction in the award with reference to acquisition of Survey No. 1506/P was to be made. We may note that further reference has been made to the communication dated 12.4.2023, note of which was taken in the judgment and order dated 13.4.2023 passed by this Court in the previous round of litigation initiated by the petitioners herein. Based on the communications dated 7.3.2014, 7.11.2014 and 12.4.2023 placed on record, it was vehemently urged by the learned Senior Counsel for the petitioners that the said communications create an estoppel against the State Government. The State authorities cannot turn around and take a contrary stand of denial of the claim of the petitioners to release the land in question. Reliance is placed on the decisions of the Apex Court in case of Chief Engineer, Water Resources Department vs. Rattan India Power Limited through its Director, AIR 2023 SC 422 and Salem Muslim Burial Ground Protection Committee vs. State of Tamil Nadu, AIR 2023 SC 2769 to submit that an estoppel operates against the State Government and the rejection of the claim of the petitioners for release of the land in question by order dated 12.6.2023 becomes an illegal exercise on the part of the respondents. 18. Further reference has been made to the provision of Section 12A introduced by the Gujarat Amendment Act No. 20 of 1965 and the Section 13A of the Land Acquisition Act, 1894 introduced by the Amendment dated 24.9.1984 to assert that the Collector is empowered to make a correction in the award and the present case is a case of error in the award, wherein the land in Survey No. 1506/P was treated as an acquired land and determination of compensation has wrongly been made with respect to the said land. It is further argued that the award passed in the year 2011 has not been executed till date and it is not possible nor permissible for the respondents to execute the same. 19. All these submissions are found devoid of the substance for the simple reason that no estoppel can operate against the Statute. The Statute by virtue of Section 48 of the Land Acquisition Act, 1984 does not empower the State Government to release the acquired land possession of which has been taken. In light of language of sub-section (1) of Section 48, we are not impressed with the submission of the learned Senior Counsel for the petitioners on the plea of estoppel. Moreover, any communication made by the Special Land Acquisition Officer to the Executive Engineer of the Project or any other authority, as placed before us, is not binding on the State Government. These communications are made on the applications moved by the petitioners and the owner of the neighbouring land namely, Survey No. 1506/P/1. In any case, in the communications, there is no reference of the decision of the State Government to release the land in question. 20. On the submission that the present is a case of correction of award and the power lies with the Collector under Section 12A of the Gujarat Amendment Act and Section 13A of the Central Act, suffice it to say that the award with respect to Survey No. 1506/P was made as it was included in the acquisition notification issued under Section 4 and 6 of the Land Acquisition Act, 1894. At no point of time, the predecessor in interest of the petitioners had challenged the acquisition notifications. The result is that the acquisition proceedings have been concluded with the making of the award and transfer of the possession to the State Government. Once the land is vested with the State Government and the award is made with respect to the acquired land, it is not within the power of the Collector to exclude the said land from the award by making corrections in the award. 21. We may further note that the notice under Section 12(2) was served upon the original owner during his lifetime as per the statement made in the writ petition. 21. We may further note that the notice under Section 12(2) was served upon the original owner during his lifetime as per the statement made in the writ petition. In any case, the power given to the Collector under Section 12A or Section 13A is only to make correction of clerical or arithmetical error on its own motion or on the application made by the person interested. The said power cannot be exercised to delete the plot in question which is acquired land from the award. 22. In view of above discussion, the writ petition is found devoid of merits and hence, dismissed. 23. There is no objection to the Draft Amendment. The Draft Amendment is allowed and is being disposed of in view of the order passed hereinabove.