IN THE HIGH COURT OF GUJARAT AT AHMEDABAD Date of decision: 6th September 1996 SPECIAL CIVIL APPLICATION NO.10556 OF 1995 WITH SPECIAL CIVIL APPLICATIONS NO.3266 TO 3339 OF 1996 WITH SPECIAL CIVIL APPLICATION NO. 3719 OF 1996 FOR APPROVAL AND SIGNATURE THE HONOURABLE MR. JUSTICE B.C. PATEL AND THE HONOURABLE MR. JUSTICE R.R. JAIN 1. Whether Reporters of Local Papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether their Lordships wish to see the fair copy of judgment? 4. Whether this case involved a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------- SPL. C.A. NO. 10556/95 WITH SPL. C.As. NO. 3266/96 TO 3339/96. Mr. G.N. Desai, learned Senior Counsel with Mr. P.G. Desai, learned advocate for petitioners. SPL. C.A. NO. 3719/96. Mr. B.P. Munshi, learned advocate for petitioner. FOR RESPONDENTS IN ALL ABOVE CASES: Mr. S.N. Shelat, learned Additional Advocate General with Mr. A.J. Desai, learned Assistant Government Pleader for Respondents No. 1 to 3. Mr. Anil Diwan, learned Senior Counsel with Mr. J.R. Nanavati, Mr. Mahesh Agrawal & Mr. Avinash Thacker, learned advocates for respondent No.4 CORAM: B.C. PATEL & R.R. JAIN, JJ. DATE: 6TH SEPTEMBER 1996 C.A.V. JUDGMENT: Seventy Nine petitioners have preferred these petitions, against the (1) State of Gujarat, (2). Land Acquisition Officer & Dy. Collector, Jamnagar, (3) The Collector, Jamnagar and (4) Essar Oils Limited (hereinafter referred to as the respondent Company). This is a group matter and the questions involved in all these petitions are similar. We are, therefore, disposing of all these petitions by this common judgment. Spl. C.A. No. 10556/95 is the substantive petition and the documents annexed to this petition are discussed in this judgement. 2. The petitioners have interalia prayed to issue a writ of mandamus directing the respondents to treat the notifications under sections 4 and 6 of the Land Acquisition Act (hereinafter referred to as the Act) issued by the State Government at Annexures 'B' and 'E' respectively and the notice issued under section 9 of the Act as cancelled and to declare that notifications under sections 4 and 6 are void, illegal and are inoperative. It is also prayed for directing the respondents to treat the purported agreement under section 11(2) of the Act, a specimen of which is produced at Annexure 'D' to the petition as void and the awards made by the Land Acquisition Officer to be treated as cancelled. 3. Notifications under sections 4 and 6 came to be issued for acquiring lands within the limits of village Zankhar, Bharana, Timbdi, Sodha-Targhari, Kathi-Devda and Kajurda. 4. Before filing these petitions, petitioners and others formed an association of persons i.e. of the Agriculturists whose lands are acquired and through the President of that Association, Special Civil Application No. 2937 of 1995 was filed in this Court, challenging the notifications issued under sections 4 and 6 of the Act as well as notice issued under section 9 of the Act interalia praying that the same may be treated as cancelled and the notifications be declared as void, illegal and having no effect. That petition was presented through learned advocate Mr. P.G. Desai on 5th April 1995, who has also filed these petitions. Along with the petition, at annexure 'A', a list of 257 names of the affected farmers was tendered. 86 farmers of Kathi Devada, 51 of Sodha Targhari, 12 of Timbdi, 50 of Kajurada, 16 of Zankhar, and 42 of Bharana were shown as farmers to be affected on account of acquisition proceedings. On behalf of these persons, the abovesaid Spl. C.A. No. 2937/95 was preferred in this Court. 5. Some important and relevant facts giving rise to this litigation are summarised as under :- 5.1 It appears that the respondent Company made an application to the Government of India for setting up a Refinery for petroleum products, informing the Government that the project would be set up at the West Coast of India. The Government of India granted approval to the respondent Company for foreign collaboration proposal on or about 6.1.1993. Collector, for the purpose of joint measurement, called upon the District Land Records Inspector on or about 1.2.1993 and also called upon the respondent Company to deposit a sum of Rs. 3 Crores. It appears that nine leaders of various villages forwarded their objections on or about 15.2.1993. It also appears that an agreement was executed by the Company with the Government on or about 8.9.1994 which was gazetted on 16.12.1994 and thereafter two notifications were issued under section 4 of the Act. It appears that the respondent Company's representative as well as the Collector and the Deputy Collector held meetings and tried to arrive at a settlement with the land holders. However, it ended in no result. This happened between 7.12.1994 and 6.1.1995. It appears that between 11.12.1994 and 20.12.1994, objections were lodged by some of the petitioners/claimants. Some of the petitioners/claimants were represented by an advocate, Mr. A.C. Dave. It appears that in response to a notice under section 5.A of the Act, some of the petitioners/claimants personally appeared for hearing of objections and made their submissions. Advocate Mr. A.C. Dave also appeared on behalf of some of the petitioners/claimants and made his submissions on behalf of some of the petitioners/claimants. This happened on or about 12.1.1995. Thereafter, two notifications under section 6 were issued on or about 30.1.1995. Meanwhile, the Company continued its efforts for settlement and ultimately, it appears that the Company and land holders of village Zankhar arrived at a settlement wherein the claimants agreed to take Rs.17,500/- per vigha for nonirrigated lands and Rs.35,000/- per vigha for irrigated land. This happened somewhere on 31.3.1995. With regard to other villages, between 31.3.1995 and 26.6.1995, claimants, representatives of the Company and Officers of the Collectorate were negotiating for settlement and ultimately it was agreed that compensation inclusive of additional amount, incentive and solatium etc. be paid at Rs.17,500/- for non-irrigated land and Rs.35,000/for irrigated land and it appears that after signing the agreement and 'Kabja pavti', and after receiving part payment, landholders i.e. claimants of these villages, handed over possession of their lands, the details are as under:- Sl.No. Name of village Date 1. Zankar 31.03.95 2. Bharana 24.04.95 3. Kajurda 06.05.95 4. Kathi Devada 12.05.95 5. Timbdi 24.05.95 6. Sodha Targhari 26.06.95 5.2 It appears that on 16th June 1995, Spl. C.A. No. 2798/95 came to be withdrawn. Thus, it is clear that (except Agriculturists of Sodha Targhari, who executed agreements soon after withdrawal of petition) all entered into an agreement and thereafter petition has been withdrawn. The Division Bench of this Court (B.N. Kirpal, C.J. and H.L. Gokhale, J.) passed the following order. "Civil Application No. 975 of 1995 has been filed for withdrawal of Special Civil Application No. 2937 of 1995. Counsel for respondent No. 4 readily and eagerly agreed to this application being allowed. Before allowing the application, we cannot but observe that it is indeed a mystery as to what has persuaded the petitioner, who was vehemently challenging the acquisition of their land, in now wanting, equally vehemently, to withdraw the petition. Application is allowed. In view of the above order in Civil Application No. 975 of 1995, Special Civil Application No. 2937 of 1995 is dismissed as withdrawn. Notice is discharged. (emphasis supplied by us). 5.3 Thus, the tenor of the order and intention of parties suggests that the petition was withdrawn unconditionally without reserving liberty to file a fresh petition on the same subject matter. Similarly, the Court has not granted any liberty to file a petition afresh in the subject matter. 6. In Spl. C.A. No. 2937/95 there is a specific reference to Land Acquisition (Companies) Rules, 1963 (hereinafter referred to as the Rules) and alleged failure on the part of the Collector to make inquiries in the manner as contemplated under the said Rules. A specific ground was also taken that inquiry as contemplated under section 40 has not been held in accordance with law; that section 4 notification has been issued without holding inquiry; that the procedure under section 5A has not been followed; and, that agreement under section 41 has not been executed in accordance with law. In short, contention was raised in the petition that without following the procedure laid down in part VII of the Act and the Rules, the lands cannot be acquired as the lands are to be acquired for a Company. However, by withdrawing the petition, the claim based on the said grounds thus stands abandoned. 7. Mr. G.N. Desai, learned counsel submitted that the purpose of acquisition is not a public purpose and the lands are sought to be acquired for a Company. Notification issued under Section 6 also makes it clear that it was to be acquired at the Company's expenses, and not at public expenses. He drew our attention to the purpose, which is for a tank farm and oil refinery. Relying on part VII of the Act, he submitted that unless the previous consent of the appropriate government is obtained in accordance with provision of law and the procedure before the consent is followed, the proceedings initiated are not in accordance with law. He contended that there is no inquiry, agreement as per Sec. 41 and publication of the agreement as required under section 42 of the Act. He drew our attention to the reported decisions of the Apex Court in the case of STATE OF GUJARAT VS. AMBALAL reported in AIR 1976 SC 2002 and in the case of A. HUSSAIN VS. STATE OF GUJARAT reported in AIR 1968 SC 342. He has also relied upon the decision of this Court in the case of ZAVERCHAND POPATLAL SUMERIA VS. STATE reported in 1995 (2) GLR 1733. It was submitted that as procedure contemplated in part VII of the Act with the Rules is not followed, proceedings are required to be quashed. He submitted that Agriculturists are poor and illiterate and their source of livelihood is only agricultural operation and agricultural land should not be acquired as far as possible. He also submitted that there cannot be any sympathy for the Company. 7.1 Learned advocate Mr. Desai submitted that even if the petitioners filed a petition by forming an Association through its President, the present proceedings should not be rejected on the ground that the earlier petition filed, was withdrawn. He has relied on the judgment of the Apex Court in the case of ASSOCIATED HOTELS OF INDIA. VS. RANJIT SINGH reported in AIR 1968 SC 933 and submitted that in the instant case, it cannot be said that the petitioners have waived their rights. In the case of Associated Hotels (supra) it was argued that the respondent waived the requirement of consent to the sub-letting. Any sub-letting in breach of the provisions of clause (b) of the proviso to Section 13 (1) of the Delhi and Ajmer Rent Control Act, 1952 is an offence punishable under Section 44. It was further submitted that even assuming that the landlord can waive requirement as to consent, it is not shown that the respondent waived it. In this facts situation, the Apex Court held that "A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for enforcement of such rights." In the instant case, from the fact that (i). an Association was formed for which amount was collected and on whose behalf the earlier petition was filed including the petitioners, (ii) that an advocate was engaged, (iii) that even before filing the petition some of the petitioners executed agreement and accepted the amount, (iv) that some of the petitioners received the amount after filing the petition, (v). that all entered into an agreement for the award and (vi) that in the petition there is a specific reference about non-observance of Chapter VII of the Act and the Rules, it is crystal clear, and we have absolutely no doubt in our minds, that the petition was filed with a view to claim rights available under law and by withdrawal of such petition, such rights stand abandoned and shall be deemed to have waived their claim. Consequently, their right to file another writ petition under Article 226 on almost identical grounds is barred and gets extinguished. However, if any other remedy is available under law, can be availed of. The petitioners were represented by an advocate and thus were guided by a competent person. We have taken a note of the fact that the petitioners have accepted the amount of compensation. We have also to look at the conduct of the parties. After executing an agreement if the amount is accepted and the possession is handed over, the only inference that can be drawn is that they acted at the relevant time under a binding agreement and because of some event which took place thereafter, i.e. after withdrawal of the earlier petition, the present petition is filed. 7.2 Mr. Desai also submitted that acquiescence does not confer jurisdiction for which Mr. Desai relied upon the judgment of the Apex Court in the case of U.P. RAJKIYA NIRMAN NIGAM LTD. VS. INDURE PVT. LTD. reported in JT 1996 (2) SCC 322. In that case, application was submitted under section 33 of the Arbitration Act for declaration that there exists no agreement between the appellant and the first respondent on the basis of which a dispute for a claim of money could be referred for arbitration as the agreement set up by the respondent was non est and alternatively the dispute was not arbitrable under the agreement. In that case, tenders were not jointly signed by the appellant and the respondent but were unilaterally submitted to the Board by the appellant and were lateron withdrawn. There did not exist any concluded contract between the Board and the appellant for the performance of the work as per the terms and conditions of the tender floated by the Board. Under section 32 of the Contract Act, it was a contingent contract until it was accepted by the Board. In this background, a question arose as to whether there is an arbitration agreement between the parties? A submission was made that after the offer, there was a counter offer by the respondent and that amounts to acceptance by the conduct of the appellant. The Apex Court held that it does not amount to acceptance of counter proposal. In paragraph 16, the Apex Court held that: "Since the tenders -the source of the contract between the parties- had not transformed into a contract, even if the proposal and counter-proposal are assumed to be constituting an agreement, it is a contingent contract and by operation of Section 32 of the Contract Act, the counter-proposal of the respondent cannot be enforced since the event of entering into the contract with the Board had not taken place." In paragraph 19 of the said judgment, the apex Court held that in view of the fact that Section 2 (a) of the Arbitration Act envisages a written agreement for arbitration and that written agreement to submit the existing or future disputes to arbitration is a pre-condition and further in view of the fact that the original contract itself was not a concluded contract, there existed no arbitration agreement for reference to the arbitrators. The Court further held that the question of appointing an Arbitrator would not arise. However, without prejudice to the right to claim that no valid agreement much less arbitration agreement existed, an arbitrator was nominated to arbiter the question. Since the Arbitrator nominated had expired, the appellant was called upon to nominate another Arbitrator and it is at that stage that the appellant filed the petition under Section 33 of the Act. In this circumstances, the Apex Court held that the Arbitrator cannot proceed further to arbitrate the dispute, if any. 8. In the instant case, there is a concluded contract. Acceptance of part consideration and parting with possession amounts to implementation and, therefore, parties are estopped from retracting. Parties have to abide by the same. Therefore, we find no merit in the contention raised by Mr. Desai. If there was no agreement in the instant case, Mr. Desai would be justified. 9. On behalf of the respondents, it was submitted that as earlier petition was withdrawn wherein all these contentions were raised, the petitioners cannot now be permitted to argue before this Court the very contentions. It was submitted that after filing of the aforesaid petition, petitioners have entered into an agreement with the Company and some petitioners entered into an agreement even after withdrawal. When the aforesaid petition was filed by them, they were aware about all these provisions and knowing full well that the procedure is not followed, after raising all the contentions, if they have withdrawn the petition, they cannot now be permitted to make the same grievances before this Court after accepting amount as agreed and parting with the possession of the land. 10. At one stage it was argued on behalf of the petitioners that an unregistered association is not a legal entity in the eyes of law, and, therefore, any act done by the so-called President is not binding to the persons named therein. In other words, it is sought to be argued that the withdrawal of previous petition by Kesharsing Kanjibhai Jadeja as President of unregistered Association does not prevent the petitioners from bringing fresh petition. Ofcourse, after lapse of some time, Mr. Desai has changed his stand and made an alternative submission that even assuming for the sake of arguments that the petition was filed on behalf of all then also, the present proceedings are not bad under the changed circumstances. 11. To meet with this argument, Mr. Diwan, learned counsel for respondent No.4 has invited our attention to paragraphs 3 and 4 of the present petition which read as under :- " ... The petitioners say that the petitioners were represented by one Shri Keshrising Kanjibhai Jadeja and an association was formed and a petition being Special Civil Application No. 2937 of 1995 was filed by the said Shri Keshrisinh Kanjibhai Jadeja on behalf of the Association challenging the acquisition proceedings in favour of respondent No. 4 Company. 4. Petitioners say that relying on the assurances given by said Shri Keshrising the petitioners contributed for filing the abovesaid petition No. 2937 of 1995 filed by said Shri Kesharising. The petitioners say that thereafter when the petition was pending it was represented by said Shri Keshrising that the 4th respondent Company is ready and willing to give substantial amount of market value of the land as well as solatium and interest and also ready to give other benefits as explained by said Shri Keshrising and thereupon said Keshrising withdrew the said petition. Petitioners say that it seems that the said petition was withdrawn at the behest of the 4th respondent Company." This clearly suggests that the earlier petition was filed by the President representing the interest of all the interested persons. The subsequent development suggests that as the parties had entered into a valid and legal agreement agreeing rate of compensation and other terms and conditions for handing over possession, etc. it was thought fit to withdraw the same. If the withdrawal is under such circumstances then we have no hesitation in holding that the petitioners abandoned their all contentions, having been satisfied with the subsequent agreement. The part payments received under the agreements have already been appropriated by the petitioners. Apart from these facts, institution of earlier petition and withdrawal thereof was done by the same advocate, who has filed the present petition. Since both the acts, i.e. institution and withdrawal are by same advocate in consultation with same person, the only inference which can be drawn is that the withdrawal was only after having found that the grievance made and contentions raised were remedied and such development led them to withdraw the same, and, therefore, the petitioners shall be estopped from bringing fresh petition on the same ground. We questioned the learned counsel that did the learned Advocate before withdrawing the petition not inquire about the interest of other claimants? 12. In the light of the aforesaid facts and circumstances, we find no substance in the submissions of Mr. Desai that the earlier petition was withdrawn at the behest of the Company under misrepresentation of facts. It would be pertinent to note that having confronted with the aforesaid facts, Mr. Desai, learned Counsel for the petitioners, rightly did not pursue this point further and agreed to the legal position that the petition was withdrawn by all. 13. Thus, it is very clear that on behalf of these very petitioners, earlier petition was preferred and the same has been withdrawn. Learned counsel for the respondents referred to several decision in support of his submission that once a petition is withdrawn, second petition is not maintainable. However, all decisions being on the same line, we are referring to only one decision in the case of SARGUJA TRANSPORT SERVICE vs. S.T.A. TRIBUNAL, GWALIOR reported in AIR 1987 SC 88. It is submitted that when a petition is withdrawn simpliciter, without reserving any liberty to file a fresh petition on the same cause of action, the fresh petition filed by these petitioners should not be entertained. Before the Apex Court, it was a case of simple withdrawal of a petition and no liberty was reserved to the petitioners to file a fresh petition. The Apex Court held as under :- " ... But we are of the view that the principle underlying R.1 of O. XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawn of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Art. 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case, the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject matter since the earlier writ petition had been withdrawn without permission to file a fresh petition." 14. In the case of SARGUJA TRANSPORT SERVICE vs. S.T.A. TRIBUNAL, GWALIOR (Supra), as earlier petition was withdrawn, on fresh petition, the High Court held that : No second writ petition lies against the same order. The earlier petition was not withdrawn with permission to file a fresh petition. 15. This view has been upheld by the Apex Court. In view of this, in our opinion, the present petitions are not maintainable. It would be open for the petitioners to approach the appropriate forum, if law so permit........ 16. Mr. Desai, learned counsel has given the dates of the agreements and awards as under :- Name of village Date of Date of Page No. agreement award -------------- ---------- -------- --------- Zankhar 31.03.95 26.04.95 352 (one survey No.) 15.11.95 466 Bharana 24.04.95 22.05.95 438 Timbdi 24.05.95 08.09.95 472 Sodha