Quashed

Pravinkumar Ranchhodbhai Patel v. State of Gujarat

Gujarat HC4 Feb 2020SCA/17964/2019

Case brief

AI extract

What is this about?

The High Court quashed a flawed land acquisition award. The court directed the authorities to pass a fresh award after granting petitioners a proper hearing opportunity and to determine compensation considering the period of possession from 2004-2006.

What did the court decide?

The impugned award dated 11.7.2019 is quashed. Respondents are directed to pass a fresh award after granting opportunity of hearing and considering compensation for the period 2004-2006.

Pravinkumar Ranchhodbhai Patel Vs State of Gujarat — Land Acquisition | Gujarat HC (2020)

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C/SCA/17964/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 17964 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 17968 of 2019

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============================================= PRAVINKUMAR RANCHHODBHAI PATEL

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Versus

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STATE OF GUJARAT

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=============================================

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Appearance:

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for the Petitioner(s) No. 10,11,12,2,3,4,5,6,7,8,9 BIREN J PANCHAL(9300) for the Petitioner(s) No. 1,10,11,12,2,3,4,5,6,7,8,9 MR BC PATEL(2633) for the Petitioner(s) No. 1,10,11,12,2,3,4,5,6,7,8,9

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MS NISHA THAKORE, AGP for the Respondent(s) No. 1,2,3

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============================================= CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH

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and

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HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI

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Date : 04/02/2020

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COMMON ORAL ORDER (PER : HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI)

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1. Both these petitions under Article 226 of the Constitution of India raise identical questions of law and are based upon almost similar facts and circumstances. As per the request of learned advocates appearing for the respective parties, the Court has taken them up conjointly for the ultimate outcome.

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2. Since the similar is the issue raised before us, we have treated Special Civil Application No.17964 of 2019 as the lead matter to take the facts from. The outcome will govern the other attached petition.

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3. The background facts giving rise to the present litigation are that the petitioners held their respective portion of land, possession whereof was taken over by the respondent authorities during the period from 2004 to 2006. The lands were required for the purpose of construction of Narmada Canal, which has been set up and is

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Page 1 of 15

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C/SCA/17964/2019 ORDER

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operative as on date. The present petition has been filed mainly on the premise that the respondent authorities have failed to pass an award as required under Section 11 of the Land Acquisition Act or as per the provisions of the New Act, 2013. Resultantly, the proceedings lapsed in the year 2012 and by not passing an order at the relevant point of time, the authorities have deprived the petitioners of their legitimate right of seeking fair compensation for the acquired land. The petitioners originally approached this Court by way of a petition inter alia praying for the following as a main relief:-

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“(A) that the Honourable Court be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ order or direction against the respondents directing them to comply with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and pass an award with all statutory benefits in respect of acquisition of land belonging to the petitioner.”

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4. According to the petitioners, after hearing both the parties, the High Court vide order dated 27.8.2018 directed the respondent authorities to pass an award for the land which has already been taken possession of by applying the provisions of Section 24 of the new Act of 2013, which is known as, “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013”. They were directed to pay compensation, to be determined within a period of three months from the date of receipt of the order. While disposing of the petition, the Court has taken note of the serious situation that though the possession was taken long back, prior to the notification issued under the Land Acquisition Act, 1894, no further time will be granted.

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5. It is, further, the case of the petitioners that though the time limit is over, as fixed by the Court, no process was undertaken. With an ulterior motive, the authorities have passed an award surprising for the land in question without commencing any

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C/SCA/17964/2019 ORDER

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proceedings under the new Act. By referring to certain relevant provisions of the new Act, precisely Sections 24 and 26 of the Act of 2013, a contention is raised that the acquisition is lapsed. This has constrained the petitioners to approach this Court by way of the present petition.

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6. Before pressing for the reliefs contained in the present petition, it has been brought to our notice that one Misc. Civil Application No.1 of 2018 was submitted on 6.12.2018, seeking extension of time as contained in the earlier order dated 27.8.2018. In para 3 of the said application, it had been submitted that the respondent had already sent a proposal for exemption from the Social Impact Assessment, notification to the Government. New proceedings for the disputed land acquired are to be commenced as per the new Act. Due to this, the respondent authorities will be able to pass an award within a period of one year. Surprisingly, according to the petitioners, the authorities started new proceedings to acquire the lands in question by making a new survey. They further prepared a chart showing actual ownership and thus, the authority made a new Darkhast for acquisition and forwarded the same to the respondent No.3 authority vide communication dated 16.8.2018. According to the petitioners, though correct names of lawful owners are shown in the above chart, the authority deliberately reflected an intention to make award in the name of the previous owners who had already sold the lands to the petitioners long back. Even the areas mentioned are found to not be in order. From this chart and the particulars contained therein, it appears that the mandatory requirement of Section 11(5) of the Act has not been undertaken. The case of the petitioners further travels to the effect that the proceedings have already lapsed under the old Act. Since the award under Section 11(1) of the old Act has not been passed within a period of two years from the Section 6 notification, the authority could not have

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C/SCA/17964/2019 ORDER

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passed the present impugned award, which is apparently not sustainable in the eye of law. By making this grievance, a further contention has been raised to the effect that a bare minimum requirement of opportunity of hearing has not been afforded in passing the impugned order. As a result of this, the present petitioners have come out with reliefs contained in para 14 of the petition, which reads as under:-

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“A. Your Lordship may be pleased to pass a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ order or direction to quash and set aside the award dated 11.07.2019 (Annexure B) and further be pleased to direct the respondent authorities to initiate a fresh proceedings for the acquired lands in question as per the Act, 2013, in the interest of justice.

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B. Your Lordship may be pleased to pass a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ order or direction to the respondent to modify or amend the award date 11.07.2019 (Annexure B) by considering the present market value as on the date of the judgment of this Hon’ble Court dated 27.08.2018 for the acquired lands in question as per the Act, 2013, and further be pleased to direct the respondent to correct the names of the true and lawful owners of the acquired lands, in the interest of justice.

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C. Pending the hearing and final disposal of the present petition, Your Lordship may be pleased to pass a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ order or direction to stay the operation of the award dated 11.07.2019 (Annexure B), in the interest of justice.

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D. ….........”

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7. While considering the submissions of learned advocate Mr. Patel, initially, we had granted time to learned Assistant Government Pleader to obtain appropriate instructions from the authorities. This time has been extended from time to time, and then an affidavit-in-reply was filed on behalf of the respondent No.2 authority, which was taken on record, vide order dated 8.1.2020. Thereafter, since the pleadings were completed, we took up the hearing of the present petition conjointly with the consent of

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C/SCA/17964/2019 ORDER

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learned advocates. Learned advocate Mr. B.C. Patel has represented the petitioners, whereas learned Assistant Government Pleader Ms. Nisha Thakore has represented the State authorities.

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8. Learned advocate Mr. B.C. Patel, appearing with learned advocate Mr. Biren Panchal for the petitioners has vehemently contended that undisputedly, by virtue of the effect of the provisions of the Act of 2013, the proceedings have automatically lapsed. This is since the respondent authorities have miserably failed in their duty to pass an award as required under Section 11 of the Land Acquisition Act. By virtue of the provisions of the new Act of 2013, the proceedings lapsed way back in the year 2012. It has been submitted that the Division Bench of this Court, in the order dated 27.8.2018, had also directed the respondents to pass award by applying the provisions of Section 24 of the new Act of 2013 and determine the compensation accordingly within a period of three months from the date of receipt of the order. However, with a malafide intent, this period has not been maintained. According to Mr. Patel, to determine the market value, the proper procedure was not observed. The market value of the land has been considered as of that in October 2010, which is completely arbitrary and suffers from non-application of mind, reflecting a malafide intent of the authority. Mr. Patel has further submitted that the order passed by this Court dated 27.8.2018 has been served and even the notice came to be issued in the month of February 2019, yet no effective steps were taken. This has resulted in the petitioner being deprived of fair compensation to be awarded under the new Act. According to Mr. Patel, the award passed on 11.7.2019 is non est in the eye of law, hence it deserves to be quashed and set aside.

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9. Mr. Patel has further submitted that pursuant to the issuance of the notification under Section 6 of the Land Acquisition Act, the authority was under obligation to declare the award under Section

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11(1) of the old Act within a period of two years. Having not maintained so, the steps have automatically lapsed. Mr. Patel has further submitted that there are a large number of similarly situated land owners who have been granted and compensation paid to, pursuant to the award. However, for some oblique reasons, the authority has not considered the stand of the petitioners, which has forced the petitioners to this Court. According to Mr. Patel, the acquisition lapsed by virtue of the statutory effect of the provisions, cannot be revived by an authority. The impugned award cannot revive the proceedings which have lapsed. Therefore, it is not of any significance in the eye of law. By referring to Sections 24 and 26 of the new Act of 2013, Mr. Patel has raised a contention that even mandatory provisions and the procedure required to be observed has also not been observed at all. Here is a case in which, long before, i.e. from the year 2004 to 2006, the possession was taken but the process was commenced much later. Still the petitioners are allowed to languish in litigation. It has been contended that all this time, the authorities were aware of the fact that their names have already come on record, and they have not been granted an adequate opportunity of being heard. It has been submitted that had the hearing been given, the petitioners might have been able to point to the authorities that the effect of the provisions is such where the original proceedings have lapsed. Resultantly, fresh process was required to be undertaken. But, while passing the award, adequate to be heard was not given. That is a fatal infirmity on the basis of which alone, the relief for setting aside the impugned award deserves to be considered. Mr. Patel has submitted that here is a case where almost 9 years have gone after issuance of the notifications under Sections 4 and 6 of the Act and more than 14 years have gone from the date of possession. A serious error has been committed in the award regarding fixation of market rate, which prevails till date. By referring to some decisions of Hon’ble the Apex Court, a contention is raised that the

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award in question is perverse and not sustainable in the eye of law. To strengthen his submissions, learned advocate Mr. Patel has relied upon a few decisions delivered by various Courts, including Hon’ble the Apex Court, which are referred to hereinafter:-

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(1) In the case of Soorajmull Nagarmull Vs. State of Bihar and Ors . reported in 2015 LawSuit (SC) 752 ;

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(2) In the case of Laxmi Devi Vs. State of Bihar & Ors. reported in 2015 LawSuit (SC) 614 ;

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(3) In the case of Tukaram Kana Joshi & Ors. Thr. Power of Attorney Holder Vs. MIDC & Ors. reported in 2012 LawSuit (SC) 743 ;

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(4) Decision of Madras High Court dated 28.01.2016 in W.P. 7070 of 2010 and allied matters;

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(5) Decision of this Court dated 19.3.2019 in Special Civil Application No.14335 of 2014 and its allied matters;

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(6) Order dated 27.4.2017 passed by this Court in Special Civil Application No.12831 of 2016 .

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After citing those decisions, a contention is raised that the impugned action and award is absolutely unjust, arbitrary, tilted with malafide. It suffers from the vice of non-compliance of the principles of natural justice.

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10. A statement has also been projected before us, indicating adhoc amount of compensation which has been paid for acquisition of the land at Sanand. By referring to this, it has been submitted that this petty amount of compensation purely on ad-hoc basis is nothing but frustrating the very object of enactment of the new Act of 2013. Learned advocate Mr. Patel has reiterated his submission to set aside the impugned order and grant the reliefs as prayed for.

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11. Alternatively , Mr. Patel has also emphasized the contention, that this mistake ought not to have been committed by the authority. Resultantly, appropriate order should be passed to grant

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a fresh opportunity to represent. No other submissions have been made.

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12. To meet with the stand taken by learned advocate Mr. Patel for the petitioners, learned Assistant Government Pleader Ms. Nisha Thakore appearing on behalf of the authorities has contended at the outset that the petition itself is not maintainable. This is in view of the fact that there is a statutory remedy by way of appeal provided under the new Act of 2013. Determination of the market value of the land and the incidental issue, since they will be examined at an appropriate stage by the authority constituted under the Act, no extraordinary jurisdiction may be exercised, which is purely equitable in nature. It has been contended by Ms. Thakore that here is a case where the petitioners themselves have requested the Court in previous litigation to pass an award. Though these facts were very much available, no contention was raised with regard to the lapse of the acquisition proceedings. Now, it is not open for the petitioners to raise a plea which ought to have been examined at the relevant point of time. By referring to para 6 of the said decision taken in Special Civil Application No.5141 of 2018 and allied matters dated 27.8.2018, a contention is reiterated that now it is not open for the petitioners to re-agitate the issue. It is the petitioners themselves who persuaded the Court to pass the award as required under the provisions of the new Act of 2013. Based upon their request alone, the Division Bench, on an earlier occasion, directed for effective steps as reflected in para 7 of the said decision. Ms. Thakore has further submitted that it is not correct to say that malafide acts have been executed by the authority in any form. On the contrary, these very petitioners, on account of non-observance of the time schedule prescribed in the aforesaid decision in earlier round, have filed a contempt petition. The said contempt petition has already been disposed of vide order dated 19.8.2019. In this, para 2 has made it clear that if the

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petitioners are aggrieved, they can file appropriate proceedings to challenge the award passed and impugned in the present proceedings. To challenge the award, a specific statutory remedy is available and it is not proper on the part of the petitioners to invoke the extraordinary jurisdiction of this Court. Ms. Thakore has further submitted that apart from availability of the alternative remedy to the petitioners, the case put before the Court is not sustainable even on merit. Here is a case where as per Section 4 under the Land Acquisition Act, 1894, notification was published in the Official Gazette after its approval on 23.6.2010. It was also circulated in a daily newspaper on 25.9.2010 and a similar notification was also published at the local level in Village Choraha on 26.10.2010. Further, Section 6 declaration was also approved by the State authority on 27.11.2010. The same was published in the Official Gazette on 15.12.2010 and simultaneously, published in the daily newspaper on 25.12.2010 and then at Village Choraha on 7.3.2011. Therefore, the point attempted to be canvassed before the Court is not available to the petitioners. Apart from that, notices were also issued to the original owners under Section 9(1) and (2) of the Land Acquisition Act on 7.6.2011. Hearing was fixed under Section 9 on 28.7.2011, pursuant to which, the last date for declaration of the final award was 7.3.2013. Unfortunately, the award could not be passed and in the meanwhile, new provisions of the Act of 2013 came into force with effect from 1.1.2014. Taking the similar situation and the circumstances prevailing on record, on earlier occasion, at the instance of the petitioners themselves, the Division Bench granted time of three months, as already mentioned in the earlier order. It is these very petitioners who requested the Division Bench to take appropriate step to pay the compensation. Now with a view of getting more undue benefit, a contention is tried to be projected as if the original acquisition proceedings have lapsed. Learned advocate Mr. Patel has not fairly pointed out that the said time limit prescribed by the Division Bench of this Court of

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three months’ period was extended in an order passed in Misc. Civil Application. Pursuant to that, if the impugned award is passed after considering every circumstance, there is hardly any legitimate stand available with the petitioners in invoking the extraordinary jurisdiction of this Court.

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13. Ms. Thakore has further contended that the grievance regarding determination of the market value, reflected in the award, is also not possible to be agitated by the petitioners. The decision of fixing the market rate at Rs.223/- per Sq. Mtr. is, on the contrary, on a higher side as compared to the other factors. In fact, by applying the factor-1, 100% solatium has also been awarded and 12% additional compensation has also been awarded. That being so, the petitioners have not made out any case for interference in extraordinary jurisdiction of this Court. On the contrary, a bare reading of the award in question makes it clear that the petitioners are not left without compensation for the period prior to 2010, when notification came to be issued. A bare reading the clause (c), contained in para 11, internal page 08 of the award reflecting on page 40 of the petition compilation has clearly made out a case that the petitioners are entitled to only rent for the previous period, i.e. from 2004-06 to initiation of the steps under the Land Acquisition Act, and that rent is also for the period from taking possession till the award date. The same shall have to be paid keeping in view the parameters prescribed in the Government Resolution dated 18.6.1986. As such, the grievance which tried to be projected before the Court is ill-founded and not sustainable. Resultantly, the petition being devoid of merits, same should be dismissed in limine.

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14. Ms. Thakore has further submitted that here is a case where the petitioners have not only agitated the issue regarding lapse of acquisition proceedings in the original round of litigation but also not agitated or raised at the time when extension of time was sought. The petitioners never challenged or assailed the step and

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action of the authority on that count. By virtue of the effect of Order-2 Rule 2 of the Civil Procedure Code, they are estopped from agitating such issue.

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15. Even otherwise, the petitioners are not entitled for the relief claimed in the present proceedings.

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16. In rejoinder to this submission of learned Assistant Government Pleader Ms. Thakore, learned advocate Mr. Patel has vehemently submitted that all these issues and the controversies ought to have not been gone into, in fact, by the authority at the relevant point of time. Apart from this, had the opportunity been given regarding hearing as required under the provisions of the new Act, this eventuality might not have arisen. Therefore, also, the action itself is not sustainable in the eye of law since it suffers from serious violation of the principle of natural justice. As such, a point has been raised, specifically about non-granting of hearing, with full emphasis. Mr. Patel has further submitted that this is a case where not only are the petitioners inclined to raise the point with regard to determination of the market value but also with regard to non-observance of the mandatory provisions of law. As such, they have indirectly made a request to direct the authorities to reconsider and take a fresh decision.

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17. Having heard the learned advocates appearing for the parties and having gone through the material on record, the following circumstances are not possible to be left unnoticed by the Court:-

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(1) These very petitioners on an earlier occasion have approached this Court by way of filing Special Civil Application No.5141 of 2018 with another Special Civil Application No.5153 of 2018. While hearing the said petitions, this very learned advocate Mr. Patel had requested the Division Bench that though the possession had already been taken by the authority and the land

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was already utilized, still the award was not effected nor passed. As such, very learned advocate had requested the Division Bench to dispose of the petitions by directing the respondents to pass award by fixing appropriate time limit. This stand taken by learned advocate for the petitioners, since eloquent enough, we deem it proper to reproduce the same from the extract of the earlier order passed by the Division Bench:-

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“6. Learned counsel for the petitioners Shri Biren J. Panchal, made a request to dispose of the petitions by directing the respondents to pass award by fixing the time. As much as the notification was issued under the Land Acquisition Act, 1894 prior to coming into force of the The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013, and as much as no award is passed under the old Act of 1894, and in view of the benefit conferred under section 24 of the new Act of 2013, award is required to be passed as per the provisions of the Act of 2013. As much as possession is also taken of the land, which is required for public purpose, the request made by learned counsel for the petitioners requires to be accepted.

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Accordingly, these petitions are disposed of by directing the respondents to pass award for the land acquired, by applying the provisions under section 24 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013, and pay compensation to be determined, within a period of three months from the date of receipt of this order. It is made clear that, as possession was taken earlier to the notification issued under the Land Acquisition Act, 1894, no further time will be granted.”

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(2) It is also noticed by this Court that even the time limit of three months, determined by the Court, has also been extended after hearing learned advocates for the parties. At that point of time also, it appears that learned advocate had not agitated about such lapse of the acquisition proceedings. Additionally, from the record, it is clearly borne from page 56 that while disposing of the contempt petition, i.e. Misc. Civil Application No.741 of 2019, it was clearly observed by the contempt Bench that if the petitioners are aggrieved, then they may file appropriate proceedings in

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accordance with law to challenge the Award .

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(3) In addition to this, under the provisions of the new Act, i.e. the Act of 2013, hearing to the persons interested is already envisaged. This has been clearly supported from the stand taken by these very respondent authorities while seeking extension of time by preferring Misc. Civil Application. In para 3 of the said application submitted for extension of time, reflected on page 67, such assertion is very much reflected. On the basis of assertion made by the authority itself at relevant point of time, extension application has been considered by the Court.

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18. Now, on the basis of the aforesaid circumstances visible from the record, when a clear stand is taken by the petitioners in their rejoinder affidavit reflecting on page 200 onwards that the authority has not extended any opportunity of hearing though required under the new Act and straightway passed the award impugned in the present proceedings and effect of such is that the award under challenge becomes ab initio void. This clear stand taken by the petitioners in the rejoinder affidavit has not been met with by the respondent authority nor controverted. As such on the said tacit acceptance, it can safely be inferred that no opportunity has been extended to the petitioners while passing the impugned award. Basic averments to this effect contained in para 2 read as under:-

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“2. With reference to para no.1 to 4 of the reply, the averments, allegations and statements made therein are denied by me and it is put to strict proof thereof, by the respondent. I say and submit that our Fundamental Rights are violated and we are deprived thereof by the respondents to get fair compensation under the new Act of 2013, as the respondents have not followed the provisions of the said new Act completely and have not given any opportunity of hearing under the said New Act. It is submitted that no notification as required under the said Act are published and/or at no point of time hearing is done under the New Act and therefore, straight way, the award passed which is under challenge is ab-initio void, as it is without following due process of law and therefore, our

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fundamental rights are adversely violated and therefore, the present petition is filed by us.”

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19. When this is the position, undisputedly reflected from the record, instead of going much into the other aspects, we deem it proper to set aside the impugned order challenged in the present proceedings for taking fresh decision after extending proper opportunity to the petitioners.

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20. We are also satisfied that no adequate opportunity appears to have been given to the petitioners on the basis of which, the authority can justifiably arrive at proper valuation with regard to the land in question and for determination of the amount of compensation. We also feel it necessary to extend such opportunity to the petitioners at the hands of the respondent authorities to examine the grievance as to how these very petitioners can be compensated since their lands have already been taken under possession right from 2004-06. As such, determining such issue also, the authority is expected to grant adequate opportunity to the petitioners.

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21. Since we are relegating the petitioners to the authority concerned after setting aside the impugned award dated 11.7.2019, we deem it proper to refrain ourselves from expressing any opinion on merit with regard to the issues raised before us. It would be open for the petitioners to contend before the authority, when such opportunity is granted to them. Resultantly, the present petition stands disposed of with the following directions which would meet the ends of justice:-

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(1) The impugned award dated 11.7.2019 at page 33 of the petition compilation is quashed and set aside and consequently, the respondent authorities are directed to pass a fresh award after granting appropriate opportunity to the petitioners.

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(2) We expect that the authorities shall reconsider the issue and determine the amount payable to the petitioners after considering the contentions and the material which may be placed before them and while re-determining the amount, the authority shall also consider the period of 2004-2006 till the award how to be compensated since the possession has already been taken from the aforesaid period.

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(3) For determining such amount, the authority shall take into consideration the material which may be placed before it by the present petitioners.

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(4) Since this grievance is agitated and re-agitated time and again, we expect the authority to complete such exercise of passing fresh order within a period of THREE MONTHS from the date of receipt of the writ of this Court.

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22. With these observations, Special Civil Application No.17964 of 2019 stands disposed of. Since the lead matter is disposed of, subsequent petition, attached herewith, i.e. Special Civil Application No.17968 of 2019, is also disposed off in the aforesaid terms.

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Sd/- (VIKRAM NATH, CJ)

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Sd/- (ASHUTOSH J. SHASTRI, J)

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OMKAR

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Pravinkumar Ranchhodbhai Patel v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Pravinkumar Ranchhodbhai Patel v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

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