SCA/11839/2007 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11839 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= PATEL GANPATBHAI MANILAL - Petitioner(s) Versus SARDAR SAROVAR NARMADA NIGAM LTD. & 1 - Respondent(s) ========================================================= Appearance : MR AV PRAJAPATI for Petitioner(s) : 1, MR DIPEN DESAI, AGP for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) SCA/11839/2007 2/22 JUDGMENT 1. Rule. Mr.Dipen A.Desai, learned Assistant Government Pleader appears and waives service of notice of Rule on behalf of respondents-State of Gujarat. With the consent of learned advocates appearing on behalf of the respective parties, the matter is taken up for final disposal today. 2. In this petition, which is filed under Article 226 of the Constitution, the petitioner has prayed to issue a writ of mandamus or any other appropriate writ or order directing the respondent No.2 to forward the reference application dated 3.10.1996 submitted by the petitioner under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) to the appropriate court for determination of the compensation payable to him. 3. The petitioner was the owner of Block/Survey No.259/4 of Mouje Village Sujanpura, Taluka Chanasma, District Mehsana which came to be acquired by the respondents and award under Section 11 of the Act came to be published on 16.9.1996. The award declared by the respondent No.2 was numbered as Land Acquisition Case No.32 of 1994. It is the case on behalf of the petitioner that as the Land Acquisition SCA/11839/2007 3/22 JUDGMENT Officer under the Land Acquisition Case No.32/94 awarded the amount which was inadequate and therefore he filed an application under Section 18 of the Act before the respondent No.2 herein i.e. Special Land Acquisition Officer, Narmada Project Unit-18, Mehsana, through his advocate Shri P.S.Patel on 3.10.1996. It is the case on behalf of the petitioner that, in spite of the fact that the application for reference under Section 18 of the Act, was submitted as far as back on 3.10.1996, and though the reference applications of the year 2005 and 2006 are referred to the Reference Court, in spite of the fact that more than 9 years have been passed, the application made by the petitioner dated 3.10.1996 has not been referred to the Reference Court and, therefore, the petitioner submitted an application dated 28.3.2005 through his advocate Shri P.S.Patel to the Deputy Collector i.e. respondent No.2 herein making a grievance with respect to not making the reference and in spite of the fact that the Additional Collector (Narmada) by his letter dated 20.11.2005 informed the respondent No.2 Special Land Acquisition Officer to submit the details about the applications made by the petitioner under Sec.18 of the Act, nothing has been done till date. It is submitted that even thereafter one another application was submitted by the petitioner on 29.3.2007 SCA/11839/2007 4/22 JUDGMENT requesting the Additional Collector to instruct the respondent No.2 to make a reference immediately, and in spite of that the reference is not made pursuant to his application dated 3.10.1996 and therefore the petitioner has preferred the present petition under Article 226 of the Constitution for the aforesaid reliefs. 4. Shri Prajapati, learned advocate appearing on behalf of the petitioner has submitted that when the application was submitted by the petitioner as far as back on 3.10.1996 under Section 18 of the Act, and now it has come with in an affidavit-in-reply that the said application was received by the office of the respondent No.2 it was the duty of the respondent No.2 to make a reference to the appropriate court. It is submitted that there is no negligence on the part of the petitioner. It is submitted that the petitioner waited for sufficient time and thereafter in spite of the fact that more than 9 years have been passed reference is not made to the Reference Court. At last the petitioner has preferred the present petition, therefore, it is requested to allow the petition and direct the respondent No.2 to make a reference to the appropriate court immediately. SCA/11839/2007 5/22 JUDGMENT 4.1 Shri Prajapati, learned advocate for the petitioner has vehemently relied upon the decision of the Division Bench of this Court dated 16.10.2000 rendered in Special Civil Application No.7505 of 1999 whereby, according to the petitioner, in similar set of circumstances when the reference was not made, the Division Bench directed the Special Land Acquisition Officer to take an appropriate decision on the applications submitted under Section 18 of the Act. Therefore, it is requested to allow the present Special Civil Application. 5. Petition is opposed by Mr.Dipen Desai, learned AGP appearing on behalf of the respondents by raising preliminary objection that present petition is required to be dismissed on the ground of delay and laches, as though the application for reference under Section 18 of the Act is alleged to have been submitted on 3.10.1996, nothing was done by the petitioner till 2006. It is submitted that, as such it is very doubtful whether such application for reference under Sec.18 of the Act was submitted by the petitioner or not, alleged to have been submitted on 3.10.1996 and as such the notice under Sec.12(2) of the Act was issued on 18.11.1996 and the application for reference under Sec.18 of the Act is alleged to SCA/11839/2007 6/22 JUDGMENT have been submitted on 3.10.1996. It is submitted that therefore even the petitioner could not have submitted the application for reference under Sec.18 of the Act even prior to notice under Sec.12(2) of the Act. It is further submitted that on inquiry it is found that the application relied upon by the petitioner dated 3.10.1996 which is handwritten application submitted by the advocate upon which signature of some clerk-cum-typist has been put on 3.10.1996, and after receiving the notice of this petition, the respondent No.2 inquired about the persons who were working in the office of deponent at the relevant time as a clerk-cum-typist and it was found that two persons namely Shri A.S.Gupta and Shri A.N.Limbachiya were working as clerk-cum-typist in the office of respondent No.2 and the statements of the aforesaid two clerks have been recorded by the respondent No.2 which is at Annexure R-3 and Annexure R-4 to the petition. It reveals from the statement of Shri Gupta that he has not signed the application dated 3.10.1996 and so far as Shri A.N.Limbachiya, clerk-cum-typist is concerned, he has given the statement that the signature put on the application is similar to his signature but he can make the definite statement about the signature only after verifying the original application which was submitted by the learned advocate and SCA/11839/2007 7/22 JUDGMENT the original application dated 3.10.1996 is with the advocate of the petitioner and therefore the petitioner may be directed to produce the original application dated 3.10.1996. It is submitted that in fact the application alleged to have been submitted by the petitioner dated 3.10.1996 is concerned, there is no entry in the inward register of the year 1996. It is submitted that on going through the old records which is lying in the office of the respondent No.2, a list of reference cases which were pending with the respondent No.2 as on 22.1.1997 has been traced out in which the reference applications pending in the office of the respondent No.2 since the beginning of the unit is mentioned and the land of the petitioner which was situated at Sujanpura and the award case No.32/94 has been mentioned at Serial No.34, and therefore it might be that the application of the petitioner might have been submitted and might have been given to some clerk but not in the office of the respondent No.2 and as there is no entry in the inward register of the year 1996, it is not sure whether application was at all submitted by the petitioner or not. It is submitted that if this Court is of the opinion that the reference is to be made to the appropriate court in that case also the petitioner cannot claim all the benefits provided under the Act like interest, interest on SCA/11839/2007 8/22 JUDGMENT solatium etc., for all these 9 years as the petitioner was not vigilant at all and after 1996 he has not done anything till 2006. Therefore it is requested to dismiss the present Special Civil Application and/or in the alternative to direct the respondent No.2 to hold necessary inquiry with respect to receipt of the application alleged to have been submitted on 3.10.1996. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. At the outset, it is required to be noted that the application under Section 18 of the Act is alleged to have been submitted by the petitioner on 3.10.1996 i.e. even before the notice under Sec.12(2) of the Act. It is the case on behalf of the petitioner that as in spite of the fact that 9 years have been passed the reference was not made and therefore the petitioner submitted an application to the Deputy Collector, Narmada Project Unit No.8, Palanpur dated 28.3.2005 making a grievance with regard to not making the reference by the Special Land Acquisition Officer and thereafter again one application was given to the Additional Collector, Ahmedabad on 29.3.2006 through advocate Shri P.S.Patel requesting him SCA/11839/2007 9/22 JUDGMENT to see that the reference to be made by the competent authority. However, on considering the application dated 28.3.2005 relied upon by the learned advocate appearing for the petitioner, it appears that the said application is with respect to Land Acquisition Case No.23/94 and 24/94 and it is not with regard to Land Acquisition Case No.32/94 (petitioner's case) and therefore it can be said that for the first time the petitioner has submitted the application dated 29.3.2006 and that too making a grievance that the Additional Collector has not referred the application made by the petitioner and to make a reference to the competent court. There is no explanation for the delay between 1996 and 2006. There is no explanation whatsoever in the petition explaining the delay of 9 years after submitting alleged application dated 3.10.1996. The only averments are in paragrapah 5 which reads as under: “The petitioner submits that the various correspondence have been made time to time requesting the respondent No.2 to send the applications made under Section 18 by the petitioner and other land owners to the Reference Court, but the respondent No.2 has not bothered even to reply the letters addressed by the petitioner. The petitioner, therefore, constrained to file this petition under Article 226 of the Constitution of India seeking direction directing the respondents to immediately send the application dated 3.10.1996 made by the petitioner under Section 18 of the Land Acquisition Act to the Reference Court along with SCA/11839/2007 10/22 JUDGMENT application of the other land owners which is referred in this petition.” 7.1 Except the aforesaid averments in the entire petition there are no pleadings with respect to the delay. Except two correspondences dated 28.3.2005 and 29.3.2006, there is no reference to other correspondences, if any. 7.2 As stated above, the representation dated 28.3.2005 is with respect to Land Reference Cases No.23/94 and 24/94 only and the representation dated 29.3.2006 is with respect to the petitioner i.e. Land Reference Case No.32/94. Thus, there is no explanation at all for the delay between 1996 and 2006 and it appears that the petitioner was not vigilant and has slept over his right for a period of 9 years. However, it is the case on behalf of the petitioner that, as such it was the duty of the respondent No.2 to make a reference. It cannot be disputed that once the application is received by the competent authority for reference under Section 18 of the Act, it is his duty to make a reference. However, at the same time, if within the reasonable time the reference is not made, in that case it was the duty of the petitioner also to make inquiry as to what happened to his application. Therefore it SCA/11839/2007 11/22 JUDGMENT appears that the petitioner is very much negligent and even has not bothered till 2006 to make inquiry with respect to his alleged application dated 3.10.1996 which can disentitle the petitioner the discretionary relief in a petition under Article 226 of the Constitution. 7.3 It is held by the Hon'ble Supreme Court in the case of U.P. JAL NIGAM AND ANOTHER VS. JASWANT SINGH AND ANOTHER reported in (2006) 11 SCC 464, that when a person is not vigilant of his rights and acquiesces with the situation, and the acquiescence prejudices, or there is a change of position on the part of the party allegedly violating the rights, such person's writ petition cannot be heard after the delay on the ground that same relief should be granted as was granted to persons similarly situated, but who were vigilant of their rights. It is further held by the Hon'ble Supreme Court in the said decision that laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person is not vigilant of his rights and acquiesces with the situation, his writ petition cannot be heard after a couple of years on the ground that the same relief should be granted to him as was granted to a person similarly situated who was vigilant about SCA/11839/2007 12/22 JUDGMENT his rights. It is further held that such a belated petition can be dismissed more so when the acquiesce prejudice or there is a change of position on the part of party in alleged violating the rights. 7.4 In another decision in the case of KARNATAKA POWER CORPN. LTD. THROUGH ITS CHAIRMAN & MANAGING DIRECTOR AND ANOTHER VS. K.THANGAPPAN AND ANOTHER, reported in (2006)4 SCC 322, it is also held by the Hon'ble Supreme Court that delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances causes prejudice to the opposite party. It is also further held that even where fundamental right is involved in the matter is still within the discretion of the Court. 7.5 Considering the above and on the ground of delay and laches, this Court could have even dismiss the petition. However, considering the stand taken by the Special Land SCA/11839/2007 13/22 JUDGMENT Acquisition Officer in three different affidavit-in-replies and the Land Acquisition Act being benevolent Act, and the land owners whose lands have been compulsory acquired are paid a just and fair compensation, the said aspect is also required to be considered while considering the present petition. However, at the same time, for the delay and laches on the part of the petitioner, the respondents also cannot be made to suffer and therefore a balance is required to be struck which will be dealt with hereafter. 7.6 In the first affidavit-in-reply affirmed by the Special Land Acquisition Officer Shri S.N.Chaudhary, it is stated that the endorsement on the letter dated 3.10.1996 on the application of the claimant shows that the reference application was received but the person who has received and signed was not authorised to receive it and is Clerk-cum- Typist. It is also further submitted in the said affidavit-in- reply dated 3.9.2007 that the said reference application was not given before the respondent No.2 who is the competent authority, and therefore the same was not recorded in the inward register and the applications are misplaced in the office and therefore the reference applications are not presented before the District Court. It is also further stated in SCA/11839/2007 14/22 JUDGMENT the said affidavit that after due inquiry it was found that there are no such applications in the office. The said inquiry has been done on behalf of the claimant after the period of more than 9 years. 7.7 A second additional affidavit is filed by the very Special Land Acquisition Officer Shri S.N.Chaudhary dated 17.9.2007 submitting that the application dated 3.10.1996 is handwritten submitted by the advocate upon which signature of Clerk-cum-Typist has been put on 3.10.1996. It is stated in the said affidavit-in-reply that, after receiving the notice of the present petition, he has inquired the person who was working in the office at the relevant time as a Clerk-cum-Typist, and it is found that two persons namely Shri A.S.Gupta and Shri A.N.Limbachiya were working as Clerk-cum-Typist in the office of the Special Land Acquisition Officer at the relevant time and their statements have been recorded by him and it reveals from the statement of Shri A.S.Gupta that he has not signed the application dated 3.10.1996. It is further stated that Shri A.N.Limbachiya in his statement dated 24.8.2007 has stated that the signature put on the application is similar to his signature but he can make definite statement only after verifying the original application which was submitted by the SCA/11839/2007 15/22 JUDGMENT advocate. It is stated that the original application dated 3.10.1996 is with the advocate and the petitioner may be directed to produce the original application dated 3.10.1996. It is also further stated in the reply that it also reveals from the statement of said Shri A.N.Limbachiya that inward register was handed over to the Deputy Mamlatdar when he left the office of the Land Acquisition Officer and he has worked as a Clerk-cum-Typist in the said office from 1994 to 2003. It is also further stated in the affidavit that the said Shri Limbachiya has tried to find out inward register of the year 1996, but his all efforts failed and the inward register is missing in the office of the Special Land Acquisition Officer. It is further stated that the Special Land Acquisition Officer is trying to find out the register and if the same is not find out he intends to initiate departmental inquiry against the erring officers with regard to missing of inward register of the year 1996. 7.8 The second additional affidavit is also filed by the very Special Land Acquisition Officer Shri S.N.Chaudhary dated 15.10.2007 submitting that, after going through the old records which is lying in his office, a list of reference cases which were pending in his office as on 22.1.1997 has been SCA/11839/2007 16/22 JUDGMENT traced out, and considering the said, it appears that his office had received 66 reference applications but the same were not forwarded to the appropriate Court as provided under Section 18 of the Act. It is submitted that out of said entire list of 66 cases which were pending in his office upto 22.1.1997, except in the present case, no complaint has been received from any of the land holders. It is further stated that though his predecessor ought to have send the applications to the appropriate Court, the same has not been sent. It is stated that however the petitioners also had not approached the authority for quite a long time after submitting their application in the year 1996 and had only sent a letter in the year 2006 i.e. after 9 years of submitting the application and the petitioners were not vigilant and therefore they cannot claim all benefits provided under the Land Acquisition Act like interest and interest on solatium etc. It is also further stated that the original applications are not traceable in his office and therefore if the petitioners submit the application, the same can be referred to the appropriate court. 7.9 Therefore, now looking to three different affidavits of the very Special Land Acquisition Officer, it appears that the SCA/11839/2007 17/22 JUDGMENT the Special Land Acquisition Officer has also changed his stand from time to time. However, what is emerging from all the three affidavits that the original applications for reference are not traceable in the office of the Special Land Acquisition Officer and even it is very doubtful whether it was in fact submitted or not and the endorsement of the Clerk-cum-Typist on the application dated 3.10.1996 creates doubt whether in fact the same has been made by the Clerk-cum-Typist, who was at the relevant time working in the office of the the Special Land Acquisition Officer, and therefore, in one affidavit it is stated that the petitioners may be directed to produce the original application available with them so that the signature can be verified. If ultimately it is established that in fact the petitioners did submit the application as alleged on 3.10.1996, in that case the said application is required to be referred to the District Court for determining the compensation by the Reference Court. However, at the same time, as the petitioner is also not vigilant and did not care to inquire after 3.10.1996 for about 9 years and all of a sudden submitted the application in the year 2006, the respondents/State Government cannot be saddled with the liability of interest/additional interest etc., for the interregnum period from 1996 to the date of the application SCA/11839/2007 18/22 JUDGMENT i.e. 2006. 8. As stated above, even the factum of the application dated 3.10.1996 for making the reference is also required to be verified by the authority, and for that purpose, the petitioner is also required to submit the application along with the original signature of the Clerk-cum-Typist as alleged to have been received the said application dated 3.10.1996. As there is no sufficient proof and/or evidence to prove that even the application dated 3.10.1996 was received by the Clerk- cum-Typist and in the office of the Special Land Acquisition Officer on 3.10.1996. Even the three affidavits-in-reply filed by the very Special Land Acquisition Officer also creates some doubt which requires to be considered by the higher authorities. It might be possible that the officer in the office of the Special Land Acquisition Officer might be trying to help the petitioner as neither the inward register is available nor the original reference application is available in the office of the Special Land Acquisition Officer and except some signature without any stamp and/or inward number is produced by the petitioner. The aforesaid aspect is required to be considered in light of the fact that even the petitioner has not made any grievance before 2006 i.e. for the period SCA/11839/2007 19/22 JUDGMENT between 1996 to 2006. Therefore even the affidavit-in-replies filed by the Special Land Acquisition Officer are required to be considered with great care and caution. 8.1 Considering the above, the prayer of the petitioner directing the respondents to refer the application dated 3.10.1996 alleged to have been made by the petitioner under Section 18 of the Land Acquisition Act to the Reference Court straightway cannot be granted. 8.2 It is also required to be noted at this stage that even the petitioner has also prayed for an appropriate order directing the respondents to refer the applications made by the other land owners whose lands have been acquired by the respondent No.2 by the same notification to the Reference Court. Such a prayer cannot be granted as the petitioner has no authority on behalf of other