Allowed

Jadeja Mahendrasinh Hamirsinh v. Deputy Collector, Land Acquisition and Rehabilitation (Irrigation) and Prant Officer

Gujarat HC17 Nov 2022SCA/21371/2022

Case brief

AI extract

What is this about?

The High Court allowed multiple Special Civil Applications wherein landowners sought to extend benefits from a Court award passed under Section 28A of the Land Acquisition Act, 1894, despite a different notification number. Finding the notifications for the same village and purpose issued on the same day, the quashed the earlier collector's rejection but denied interest for the interim delay.

What did the court decide?

Special Civil Applications allowed; impugned order of 17.12.2020 quashed; applications restored to Collector; interest denied for delay period from 17.12.2020 to 24.4.2022.

Jadeja Mahendrasinh Hamirsinh Vs Deputy Collector, Land… — Land Acquisition | Gujarat HC (2022)

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 21353 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 21355 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 21371 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 21372 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 22269 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 22270 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 22271 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 22272 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 22273 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 22274 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 22275 of 2022

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================================================== JADEJA MAHENDRASINH HAMIRSINH

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Versus

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DEPUTY COLLECTOR, LAND ACQUISITION AND REHABILITATION (IRRIGATION) AND PRANT OFFICER

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Appearance:

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MR KRUSHNAKANT D PATEL(10632) for the Petitioner(s) No. 1 MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1 MR K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

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and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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Date : 17/11/2022

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COMMON ORAL JUDGMENT

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Page 1 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

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Since common question of law arises for consideration in these petitions, they are taken up together for adjudication. Petitioners are claiming to be the owners of different pieces/bits/plots of land situated at Village: Dhrafa, Taluka: Jamjodhpur, District: Jamnagar, which came to be acquired by the State for the purposes of Fulzar (Kotda-Bavishi) Irrigation Scheme under provisions of the Land Acquisition Act, 1894 (‘the Act’ for short) by issuance of notification under Section 4(1) of the Act on 31.3.1995 and Gazetted on 4.5.1995. Consequentially, the notification under Section 6 of the Act came to be issued. Award came to be passed on 30.3.1996 (Annexure-C). Undisputedly, petitioners did not seek for enhancement of compensation by filing an application under Section 18 and seeking reference to the Civil Court. However, some of the land owners who had lost their lands under the same acquisition proceedings and sought for reference by filing an application for enhancement of compensation in Land Reference Case No.406/1997 to 408/1997 in respect of the same village and an award came to be passed by the reference Court

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Page 2 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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on 9.1.2019 allowing the reference in part. Immediately petitioners herein filed an application before Collector under Section 28A of the Act on 4.4.2019 seeking for extension of the benefits which was flowing from the award dated 9.1.2019 contending, inter alia , that their lands are similarly situated and they had not sought for reference inadvertently and as such taking umbrage under Section 28A of the Act, they sought for award of similar compensation. The Collector by impugned order or endorsement dated 17.12.2020 has rejected the prayer only on the ground that judgment of the reference Court relied upon by writ applicants related to a notification of different land and not relating to same notification issued in respect of the lands belonging to the petitioners under which their lands came to be acquired but a different notification. Hence these Special Civil Applications.

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We have heard Mr. Tejas P. Satta, learned advocate appearing for the petitioners and Mr. K.M. Antani, learned AGP appearing for the State.

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Reiterating the grounds urged in the petition, Mr. Tejas P.

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Page 3 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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Satta, learned advocate appearing for the petitioners would contend that there is no dispute to the fact that petitioners having filed application under section 28A of the Act well within time and the ground on which application filed under Section 28A of the Act has been rejected being on the ground of there being a different notification under which the reference Court had passed an award which completely ignores the fact that all notifications were gazetted on the same day, i.e. on 4.5.1995 and it related to same village and acquired for same purpose. Hence, he prays for application filed under Section 28A of the Act being allowed and prayer for direction being issued to the Collector to extend similar benefit.

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Per contra, Mr. K.M. Antani, learned AGP appearing for the State would draw the attention of the Court to the Gazette notification dated 4.5.1995 (Annexure-B) to contend that what has been published is relating to different notifications and the petitioners undisputedly are claiming right by virtue of the notification dated 31.3.1995 bearing No.AKSIRA/LAQ/PBLIC/K4/JAM/10/185/95 and the order of the reference Court relying upon by the petitioners relates to different notification, viz.

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Page 4 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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31.3.1995 bearing No.ACIR/LAQ/NTFI/K-4/Jam-9/186/95 and these two notifications being different, separate and distinct. Similar benefit cannot flow to the petitioners and as such he would support the order passed by the Collector and prays for dismissal of the petition.

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Having heard learned advocates appearing for the parties, we are of the considered view that it would be necessary to extract Section 28A of the Act which reads as under:

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“28.A Re-determination of the amount of compensation on the basis of the award of the Court.

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(1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under section 11, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined

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Page 5 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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on the basis of the amount of compensation awarded by the Court:

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Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.

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(2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.

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(3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under section 18.”

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A plain reading of Section 28A of the Act would indicate that where an award under this part the Court allowed the application under Section 18 and awarded higher compensation,

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Page 6 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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then notwithstanding that claimants had not made an application under Section 18, still can maintain an application under Section 28A seeking similar benefit and such application has to be filed ‘within three months from the date of the award of the Court’, requiring that the amount of compensation payable to them may be re-determined on the basis of amount of compensation awarded by the Court. Proviso to Section 28A prescribes the mode of computation of period of three months. The primary object underlying enactment under Section 28A which came into effect from 24.9.1984 is to remove inquality of payment of compensation for same or similar quality of land arising on account of proprietary owner not taking advantage of right of reference to the Civil Court under Section 18 of the Act. Such person/s would apply for re-determination of the amount of compensation payable to him, provided he satisfies (i) that with regard to the acquisition of land under the same notification, an award has been made by the Court under PartIII after coming into force of Section 28A; (ii) that the Court in such award has awarded the amount of compensation in excess of the amount awarded by the Collector under section 11; (iii)

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Page 7 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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that the person applying under Section 28A is the person interested inasmuch as his land has been acquired under same notification under Section 4(1) to which the award of the Court related; (iv) that the person moving the application under Section 28A did not make an application to the Collector under Section 18; (v) that the application is withdrawn belatedly; and (vi) that no application under Section 28A for re-determination by the applicant has been made earlier. If these ingredients are satisfied or fulfilled, it would suffice for the Collector to redetermine the compensation payable to the land loser.

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In the aforesaid analysis, when the facts on hand are examined, it would clearly indicate that successive notifications have been issued by the appropriate government for the same project viz. Fulzar (Kotda-Bavishi) Irrigation Scheme by issuance of notifications under Section 4 of the Act on 31.3.1995, as is evident from Annexure-B. It is also pertinent to note at this juncture itself that notification bearing No.ACIR/LAQ/NTFI/K-4/Jam/10/185/95 is relating to the petitioners, whereas the award which has been passed by the reference Court is relating to the notification bearing

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Page 8 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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No.ACIR/LAQ/NTFI/K-4/Jam-9/186/95. It is these two notifications which is sought to be contended by the State that they are different and distinct notifications and same cannot be construed as relating to the same acquisition notification as indicated or prescribed under Section 28A of the Act and hence, learned AGP has prayed for rejection of the petition.

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At the outset, it requires to be noticed that under Section 28A application filed by the petitioners was in respect of different survey numbers as indicated in the notification No.185/95 dated 31.3.1995 and in respect of the very same village and for the very same purpose, yet another notification dated 31.3.1995 has been issued bearing No.186/95. Both these notifications have been issued under Section 4 of the Act and published in the Gazette Notification on 4.5.1995. As such, hairsplitting argument canvassed on behalf of the State cannot be countenanced and if such argument is entertained, the very purpose of Section 28A would get defeated or the primary object underlying the enactment would be defeated. It is also pertinent to note that these two notifications viz. one relating to the petitioners and another relating to notification No.196/95

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Page 9 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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are for the same public purpose viz. Fulzar (Kotda-Bavishi) Irrigation Scheme and as such, the contention raised by the State cannot be accepted and it stands rejected. At the cost of repetition, it requires to be noticed that the acquisition of land under two notifications is in respect of the same village, for same purpose and one another notification issued on the very same day, i.e. on 31.3.1995 are of adjacent survey numbers. If for the purpose of administrative convenience, two notifications have been issued in respect of adjacent land and if one of the owners of the land were to seek reference under Section 18 and others were to keep mum and did not take as award it cannot be held that they would be prevented in seeking reference under Section 28A, as the very purpose underlying object of Section 28A would be defeated. Hence, we are of the considered view that petitioners would be entitled to the relief conditionally. On award under Section 18 being passed on 9.11.2019, an application under Section 28A came to be filed on 4.4.2019 and same was rejected on 17.12.2020. Petitioners did not challenge the said order immediately but have filed present Special Civil Applications on 24.4.2022 that is after a lapse of 2 years and 3

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Page 10 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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½ months (approximately) and for the delay attributable to the petitioners, the taxpayers’ money cannot be expended or in other words interest and consequential benefits for the said period cannot be granted to the petitioners, as otherwise it would amount to granting a premium to a person who is at wrong. The affidavits of the petitioners were also filed giving up the interest component for the delay period. As such, we are of the considered view that relief to which the petitioners are entitled to, requires to be moulded. Accordingly, we proceed to pass following

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O R D E R

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(i) Special Civil Applications are allowed.

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(ii) The order dated 17.12.2020 (Annexure-A) is hereby quashed. The applications filed under Section 28A of the Land Acquisition Act, 1894 by the respective petitioners are restored to the file of the respondent for being disposed of in the manner prescribed under Section 28A by keeping in mind the observations made hereinabove.

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(iii) In the event of the petitioners being extended benefits of

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Page 11 of 12

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C/SCA/21353/2022 JUDGMENT DATED: 17/11/2022

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the award dated 9.1.2019, it is made clear that petitioners would not be entitled to the interest and all other consequential benefits for the period from 17.12.2020 to 24.4.2022.

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(iv) No order as to costs.

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(ARAVIND KUMAR,CJ)

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(ASHUTOSH J. SHASTRI, J)

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Bharat

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Jadeja Mahendrasinh Hamirsinh v. Deputy Collector, Land Acquisition and Rehabilitation (Irrigation) and Prant Officer

Case brief

What is this about?

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Jadeja Mahendrasinh Hamirsinh v. Deputy Collector, Land Acquisition and Rehabilitation (Irrigation) and Prant Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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