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2024 DIGILAW 2156 (GUJ)

Bhikhabhai s/o. Dansang koli v. State Of Gujarat

2024-12-05

PRANAV TRIVEDI, SUNITA AGARWAL

body2024
JUDGMENT : (PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) 1. Heard learned counsels for the parties and perused the report. 2. The present petition has been filed against the State Respondents and the acquiring body namely the National Highway Authority of India (NHAI) with the following prayers: “(a) That this Hon'ble Court may be pleased to issue appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction to the respondent authorities to publish necessary notification qua the land of the petitioner and award the compensation and further be pleased to direct the respondent authorities to pay amount of loss which took place due to destroying standing crops of the petitioner in the interest of justice. (b) That this Hon'ble Court may be pleased to stay the further work under the "Bharat Mala Project" qua the land of the petitioner in the interest of justice. (c) YOUR LORDSHIPS may be pleased to pass such other and further order as the nature and circumstances of the case may be required.” 3. The petitioner herein claims to be the owner and occupier of land bearing Survey No.245, Village Kilana, Taluka Santalpur, District Patan and would submit that the land in question is in his share since the year 1987 and revenue entry No.375 is proof of the said fact. The copies of 7/12 extract and Form 8A are appended with the writ petition. 4. The contention in the writ petition is that in the month of May’ 2023, the petitioner came to know about the road widening project under Bharat Mala Project and has contacted the office of the respondent No.3 namely the competent officer, NHAI, demanded documents and requested for compensation. 5. In the month of November’ 2023, some of the officers along with workers rushed to the agricultural field of the petitioner and started work under the Bharat Mala Project. The petitioner obstructed the work and requested for necessary documents and compensation, however, he was threatened by the police officials. Again on 08.11.2023, the Mamlatdar and other officers came to the agricultural field of the petitioner, destroyed the crops and started construction work without any documents and payment of compensation to the petitioner. The petitioner obstructed the work and requested for necessary documents and compensation, however, he was threatened by the police officials. Again on 08.11.2023, the Mamlatdar and other officers came to the agricultural field of the petitioner, destroyed the crops and started construction work without any documents and payment of compensation to the petitioner. A representation dated 09.11.2023 was then given by the petitioner and on 02.12.2023, the petitioner demanded compensation for his agricultural land bearing Survey No.245 from respondent No.3 by moving an application. 6. On 11.12.2023, the petitioner wrote an application demanding the copy of map of acquisition of the lands under Bharat Mala Project to the respondent No.3, but there was no reply. All efforts made by the petitioner went in vain and hence, he was constrained to file the present petition in the month of February’ 2024. 7. On the presentation of the writ petition, after impleadment of National Highway Authority of India (NHAI) as respondent, by order dated 12.03.2024, time was granted to the NHAI to file affidavit of the competent authority. 8. In the affidavit filed on behalf of the NHAI, it was stated that the acquisition notification included lands bearing Survey Nos. 244 and 254 of Village Kilana, which mentions acquisition of an area of 1,12,296 sq.mts of Survey No.244 and an area of 1179 sq.mts of Survey No.254. The copy of the acquisition notification under Section 3-A dated 04.09.2018 has been appended thereto. It is also brought on record that the compensation for the acquired land was determined by the competent authority vide award dated 31.10.2020 under Section 3G(1) of the National Highways Act’ 1956. 9. The possession of the acquired area of Revenue Survey Nos. 244 and 254 had been taken from the erstwhile owners, who handed over possession in a peaceful manner. 10. Post acquisition, during the course of execution of the work of construction of the highway, it was realized that some additional land was required, resultantly a fresh notification No.1140(E) under Section 3A was published on 10.03.2023, whereunder an area of 2057 sq.mts of the land bearing Survey No.244/paiki 1 and area of 1376 sq.mts of land bearing Survey No.254/paiki 1 were notified for acquisition. 11. On completion of the acquisition proceedings, award dated 19.08.2023 was declared by the competent authority under Section 3G(1). 11. On completion of the acquisition proceedings, award dated 19.08.2023 was declared by the competent authority under Section 3G(1). The entire amount of compensation for acquisition of two parcels of land, noted hereinabove, in both the acquisition proceedings had been deposited before the competent authority. 12. As regards the first phase of acquisition, vide notification dated 04.09.2018, it is stated that the concessionaire appointed by the NHAI commenced construction activity after deposit of the compensation by the NHAI. 13. We may further note that at the time of filing of the affidavit by the NHAI in the month of March’ 2024, the construction work of the National Highway was going on. However, it is submitted by Mr. Maulik G. Nanavati, learned advocate appearing for the NHAI that the construction of the highway on the patch of the land acquired out of the Survey No.244 and Survey No.254 has been completed as of now. 14. It may further be noted that after considering the contentions of the learned counsels for the parties, in order to verify the claim of the petitioner, by order dated 01.08.2024, we have directed the Collector, Banaskantha to constitute a revenue team to carry out measurement of three adjacent plots namely Survey No.244 and Survey No.254, which are in the possession of the NHAI, over which the construction of the highway has been completed and Survey No.245, which is the plot in question belonging to the petitioner. 15. At this juncture, we may note that the dispute raised by the petitioner, owner of Survey No.245, is with respect to the acquisition on the premise that a portion of the land belonging to the petitioner comprising of Survey No.245 has been acquired, whereas the compensation for the entire acquired area of 1,12,296 sq.mts has been disbursed to the owner of Survey No.244, illegally. We may further note that three plots namely Survey Nos. 244, 245, 254 seem to be adjoining plots. 16. From the affidavit dated 30.08.2024 of the District Inspector of Land Records (DILR), Patan, it may be noted that since the lands in question are located in District Patan, the Collector Patan had constituted a team and the measurement exercise was carried out on 09.08.2024 in the presence of the petitioner as well as the representatives of NHAI. 16. From the affidavit dated 30.08.2024 of the District Inspector of Land Records (DILR), Patan, it may be noted that since the lands in question are located in District Patan, the Collector Patan had constituted a team and the measurement exercise was carried out on 09.08.2024 in the presence of the petitioner as well as the representatives of NHAI. It is stated therein that the record pertaining to promulgation exercise of the revenue records of the lands in question which took place in the year 2016, the village map of the lands in question before and after the exercise of promulgation along with the changes reflected in the respective revenue records were taken into consideration. 17. It is stated that the acquisition proposal dated 15.01.2019 would reflect the proposal to acquire Survey No.244 admeasuring 11230 sq.mts and there was no proposal to acquire any parcel of the land bearing Survey No.245. A remeasurement exercise was conducted under the order passed by the Collector Patan dated 24.02.2022, however, as per the said office order, the measurement exercise was conducted only with respect to land bearing Survey No.244 and not the land bearing Survey No.245. There is a reference of the communications of the Project Director, NHAI and the Deputy Collector and District Magistrate, Radhanpur dated 14.02.2023 and 04.05.2022; respectively, which reflect that there was a dispute with regard to the identification, location and possession of lands bearing Survey Nos. 244, 253 and 254. 18. An attempt was made to resolve the dispute pertaining to ownership as well as possession of various lands between the land owners and a camp was held on 29.12.2022. Measurement exercise was conducted and the Panchnama prepared on 29.12.2022 and 04.11.2022 have been brought on record. It is, however, stated that the land owners of land bearing Survey Nos. 244, 245 and 254 had refused to consent for resolving the dispute qua identification, ownership and possession of the lands on account of their family dispute and the said fact is also noted in the Panchnama dated 29.12.2022. 19. The acquisition proposal dated 30.05.2023 of the second acquisition has also been brought on record and it is stated that it was proposed therein to acquire 2057 sq.mts of land bearing Survey Nos. 19. The acquisition proposal dated 30.05.2023 of the second acquisition has also been brought on record and it is stated that it was proposed therein to acquire 2057 sq.mts of land bearing Survey Nos. 244/paiki 1, 243/paiki 1, 242 paiki, 259 paiki and 245 since there was discrepancy and dispute with regard to location and identification of land between the land owners of the aforesaid survey numbers. The acquisition proposal, however, reflects that an area of 2057 sq.mts was resolved to be acquired from all the aforesaid survey numbers. 20. The result of the measurement exercise conducted pursuant to the order passed by this Court dated 01.08.2024, recorded in the measurement report dated 16.08.2024, which has been narrated in Paragraph ‘5.9’ of the affidavit, which reads as under:- “(i) The possession of the lands of the respective land owners as well as the pathway of The Acquisition Project is reflected qua capital alphabets in the measurement map so prepared. (ii) The claim regarding the identification and possession by the land owner for the land bearing survey no. 245 is reflected in the measurement map as ABCD and GHI, admeasuring 19895 sq.mtrs. as well as 927 sq.mtrs., whereas the identification of the road forming part of the acquisition Project is reflected in measurement map as BUJHGVC, admeasuring 10975 sq.mtrs. If the claim of the land owner for land bearing survey no. 245 that the road so constructed as a part of the acquisition project passes through his land is accepted, then the measurement of his entire land would be 31797 sq.mtrs. However, the measurement of the area of land bearing survey no. 245 as per the old revenue records is 28328 sq.mtrs. Hence, if the claim of the land owner for land bearing survey no. 245 is accepted, it would mean that there is an increase of an area 3469 sq.mtrs. more than the area is reflected in the revenue records. (iii) The claim of the land owner for land bearing survey no. 244 regarding the identification and possession of his land is reflected in the measurement sheet as ABTEF ad-measuring 21494 sq.mtrs. The land owner for land bearing survey no. 244 claims that an area of 403 sq.mi is utilized from his land for the constructing of the road as a part of the acquisition project. If such claim of the land owner for land bearing survey no. The land owner for land bearing survey no. 244 claims that an area of 403 sq.mi is utilized from his land for the constructing of the road as a part of the acquisition project. If such claim of the land owner for land bearing survey no. 244 is accepted then the total area of his land would be 21897 sq.mtrs., whereas the measurement of the area of land bearing survey no. 244 as per the old revenue records is 28328 sq.mtrs. Hence, there is a deduction of 6431 sq.mtrs. of land owner from land bearing survey no. 244. (iv) The claim of identification and possession by the land owner from the land bearing survey no. 254 is reflected in the measurement sheet as IJKLMNO, ad-measuring 21532 sq.mtrs. The pathway of the land utilized for the construction of road of the acquisition project is reflected in the measurement sheet PQR ad- measuring 192 sq.mtrs. The measurement of the land bearing survey number 254 as per the old records is 21651 sq.mtrs. (v) The claims of the land owners for the land bearing survey no. 244, 245 and 254 is not in consonance with the earlier revenue records as well as the map prepared before and after the exercise of promulgation had been under taken. Thus, there is an issue with regards to the identification and location of lands amongst the land owners for the land bearing survey no. 244, 245 and 254 and therefore, the land owners are required to rectify their revenue records after resolving the inter-se disputes with regards to identification and possession of their lands amongst themselves.” 21. Taking note of the result of the measurement exercise, we may note that the dispute primarily seems to be between the land holders of contiguous lands bearing Survey Nos. 244, 245 and 254. If the claim of one of the land holders is accepted, there would be reduction from the total area of another plot. The issue, which has cropped up after the measurement exercise and recorded in the measurement report dated 16.08.2024 cannot be resolved by this Court within the scope of Article 226 of the Constitution of India, as it would require correction in the revenue record, village map and participation of the land owners of all other adjoining plots. 22. Moreover, the owners of Plot No.244 and Plot No.254 have not been impleaded herein. 22. Moreover, the owners of Plot No.244 and Plot No.254 have not been impleaded herein. In the absence of the persons, who were shown to be tenure holders of the acquired land in the acquisition proposal and in whose name two awards in the acquisition proceedings have been passed and who seemingly have received compensation amount, it is not possible for this Court to adjudicate the controversy. 23. This Court, thus, reaches at an irresistible conclusion that the grievances raised by the petitioner is to be put up by approaching the competent revenue authority, invoking legal provisions. 24. At this stage, the learned counsel for the petitioner would submit that the petitioner is ready and willing to approach the competent revenue authority by moving a proper application. If such application is moved along with the copy of this order, the concerned revenue authority would be required to issue notice to all the persons interested in the dispute, the land owners of the adjoining lands, including the land owners, whose lands have been acquired and who have received compensation to complete the exercise by giving due notice and opportunity of hearing to all concerned. 25. As regards the acquisition proceedings conducted by the Central Government and construction of highway by the NHAI, there is no dispute. The dispute boils down to the core issue as to who is the rightful claimant of the compensation determined by the competent authority for the acquired portion of the lands over which the highway has been constructed. 26. With the above directions and observations, the writ petition stands disposed of. 27. It is clarified that this Court has not entered into the merits of the claim of the petitioner. All rights and contentions of the parties namely the affected land holders will remain open.