IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11096 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MAHESHBHAI RAMANBHAI PATEL Versus SPL LAND ACQUISITION OFFICER -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 11096 of 1998 MR JITENDRA M PATEL for Petitioner MR RC KODEKAR, AGP for Respondent No. 1 MR NA PANDYA for Respondent No. 3 NOTICE SERVED for Respondent No. 4 MR RAMNANDAN SINGH for Respondent No. 5 MR AJ PATEL for Respondent No. 6 RULE SERVED for Respondent No. 7 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.C.PATEL Date of decision: 25/09/2000 ORAL JUDGEMENT (Per: J.M. Panchal, J.) By means of filing this petition under Article 226 of the Constitution, the petitioner has prayed to issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside order dated October 14/16, 1998 produced at Annexure P to the petition passed by Special Land Acquisition Officer, Unit No.1, Vadodara whereby prayer made by the petitioner to make reference to the court under Section 30 of the Land Acquisition Act, 1894 is rejected. The petitioner has further prayed to direct the Respondent No.1 to refer the application submitted by the petitioner under Section 30 of the Land Acquisition Act to the District Court for appropriate orders. The petitioner has also prayed to direct the Respondent No.5 i.e. Bhartiben Ashokbhai Parikh as well as Respondent No.6 i.e. Rashmikant Jayashanker Bhatt to redeposit the amount of compensation disbursed to them by the Special Land Acquisition Officer, Unit No.1, Vadodara on October 16, 1998. 2. Block No.779 - Revenue Survey No.1121/1 admeasuring 24 acres 2 gunthas of village Dumal, Taluka and District Vadodara originally belonged to Rajendra Kapilrai Bhatt. The petitioner claims that he had purchased the said land by Registered Sale Deed dated October 29, 1994 from Mr. M.S. Patel who was power of attorney holder of Rajendrakumar Kapilrai Bhatt i.e. the respondent No.3. A copy of the sale deed dated October 29, 1994 is produced by the petitioner at Annexure A to the petition whereas copy of power of attorney dated February 16, 1991 executed by Rajendrakumar Kapilrai Bhatt in favour of Manharbhai Sanabhai Patel is produced at Annexure A-1 to the petition. According to the petitioner, on the date of execution of sale deed, the original owner Rajendra Kapilrai Bhatt had received a sum of Rs.20,000/- in cash from the petitioner and the Respondent No.3 had issued receipt for the same in his own handwriting. A copy of the receipt dated October 29, 1994 issued by Respondent No.3 is produced by the petitioner at Annexure A-2 to the petition. According to the petitioner, the Respondent No.3 i.e. Rajendra Kapilrai Bhatt had also declared on oath on January 10, 1997 that the land was transferred by his power of attorney holder Manharbhai S. Patel with his consent to the petitioner by executing sale deed dated October 29, 1994 and that he had never cancelled power of attorney executed by him in favour of Manharbhai nor had given either oral or written notice for cancellation of power of attorney. The affidavit sworn by the Respondent No.3 on January 10, 1997 is produced by the petitioner at Annexure A-3 to the petition. The case of the petitioner is that Mutation Entry No.4452 dated August 22, 1995 was also made in the revenue record reflecting the transaction in favour of the petitioner but as it was objected to, the Mamlatdar did not certify it which was challenged by the petitioner in RTS proceedings. A copy of the Mutation Entry No.4452 dated August 22, 1995 is produced by the petitioner at Annexure B to the petition. The sale deed which was executed on October 29, 1994 in favour of the petitioner was presented before the Registrar for registration on July 28, 1995 and was accordingly registered. The Registration Certificate issued by the Sub-Registrar, Vadodara is produced by the petitioner at Annexure C to the petition. The claim advanced by the petitioner is that though the petitioner had purchased land in dispute on October 29, 1994 from the power of attorney holder of Respondent No.3, the Respondent No.3 had again sold the land to deceased Vaghjibhai Bhagvanbhai by sale deed dated November 24, 1994 for a consideration of Rs.1,80,000/-. A copy of the Index Certificate mentioning the said transaction is produced by the petitioner at Annexure D to the petition. According to the petitioner, the Respondent No.3 had no right to sell the land in question to deceased Vaghjibhai Bhagvanbhai as the said land was already sold to the petitioner by his power of attorney holder on October 29, 1994 and therefore, the said transaction in favour of deceased Vaghjibhai was illegal, more particularly when deceased Vaghjibhai was not an agriculturist within the meaning of the term "agriculturist", as defined under Bombay Tenancy and Agricultural Lands Act, 1948. The petitioner has stated in the petition that deceased Vaghjibhai Bhagvanbhai expired on December 1, 1994 and after his death, his heirs and legal representatives transferred the land in question in favour of Respondents No.6 and 7 by sale deed dated May 9, 1995 for a consideration of Rs.2,16,484/-. Further, what is stated by the petitioner in the petition is that the original Respondent No.3 resold half portion from Block No.779 on August 8, 1995 to Respondent No.5 for a consideration of Rs.1,39,285/-. In the meantime, a proposal was made to the State Government to acquire Block No.779 and other lands of village Dumal for public purpose of loading facility of trucks of Indian Oil Corporation. On scrutiny of the said proposal, the State Government was satisfied that Block No.779 of village Dumal was likely to be needed for the said public purpose. Therefore, a Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued which was published in the Official Gazette on November 23, 1995. A copy of the Notification published under Section 4(1) of the Act is produced by the petitioner at Annexure E to the petition. Those whose names were reflected in revenue records were served with notices under Section 4 of the Act and they had filed their objections against the proposed acquisition. After considering the objections filed by interested persons, the Special Land Acquisition Officer, Unit No.1, Vadodara had forwarded his report to the State Government, as contemplated by Section 5A(2) of the Act. On consideration of the said report, the State Government was satisfied that Block No.779 alongwith other lands which were specified in the Notification published under Section 4(1) of the Act were needed for the public purpose of loading facilities of trucks of Indian Oil Corporation. Therefore, a declaration under Section 6 of the Act was made which was published in the Official Gazette on March 6, 1996. A copy of the declaration made under Section 6 of the Act is produced by the petitioner at Annexure F to the petition. According to the petitioner, the petitioner had addressed representation dated April 8, 1996 to the Land Acquisition Officer pointing out inter alia that as he was the lawful owner of the disputed land, he was entitled to compensation. A copy of the letter dated April 8, 1996 addressed by the petitioner to the Collector and Special Land Acquisition Officer is produced by the petitioner at Annexure G to the petition. The petitioner has averred that he had addressed another letter dated January 15, 1997 to the competent authority stating that no notice was given to him in the proceedings relating to acquisition of the land in question and that he should be permitted to participate in the proceedings. The petitioner has stated that he received notice from the Special Land Acquisition Officer, Unit No.1, Vadodara pursuant to which he remained present before the said officer on July 3, 1998 and submitted his objections in writing stating that as he had filed Regular Civil Suit No.2383 of 1995 against the original owner of the land i.e. Respondent No.3, as well as Collector and the State Government, he should be heard before making the award. A copy of the objections submitted by the petitioner on July 3, 1998 is produced by the petitioner at Annexure I to the petition. The petitioner has claimed that pursuant to the objections referred to above, the petitioner was called upon by the Special Land Acquisition Officer to remain present on July 10, 1998 by a letter dated July 6, 1998 and the petitioner had submitted his objections in writing on July 10, 1998 mentioning that only he was entitled to get entire amount of compensation relating to Block No.779 of village Dumal. A copy of the objections dated July 10, 1998 is produced by the petitioner at Annexure J to the petition. According to the petitioner, he apprehended at the time of hearing of the matter before the Special Land Acquisition Officer, Unit No.1, Vadodara on July 10, 1998 that the Special land Acquisition Officer would not accept objections submitted by the petitioner and was determined to give compensation to Respondents No.6 and 7 and not inclined to make reference to the court, as contemplated by the provisions of the Act and therefore, he filed Special Civil Application No.5614 of 1998 in the High Court claiming certain reliefs against Special Land Acquisition Officer. The petition was disposed of by Division Bench comprising Mr. K.G. Balakrishnan, CJ (as he then was) and J.M. Panchal, J. on July 22, 1998 in the following terms: "Steps are being taken to acquire land comprised in Block Nos. 774, 778 and 779. Petitioner herein claims that he is the true owner of the land comprised in Block No.779. He claims that his land was sold to him by a registered sale deed by the power-of-attorney holder of the true owner, namely, the 3rd respondent. The petitioner filed objection before the Land Acquisition Officer, claiming compensation. Petitioner received notice dated 6.7.1998 for making submissions. Petitioner apprehends that the Award will be passed in favour of respondents Nos.6 and 7 and the petitioner will be left without any remedy. In view of the submission made by the petitioner, first Respondent, Special Land Acquisition Officer, Unit-I is directed to consider and dispose of the application dated 3.7.1998 filed by the petitioner and objection, if any, filed by him having due regard to Sections 18 and 30 of the Land Acquisition Act. Petition stands disposed of accordingly." 3. It is evident from the above quoted order of the High Court that the Special Land Acquisition Officer, Unit No.1, Vadodara was directed to consider and dispose of the application dated July 3, 1998 filed by the petitioner and objection, if any, filed by him having due regard to Sections 18 and 30 of the Act. The petitioner has claimed in the petition that the order of the High Court was produced before the Special Land Acquisition Officer, Unit No.1, Vadodara on July 30, 1998 but it was declared by the said officer that he had already made award on June 8, 1998 and therefore, an application dated August 1, 1998 was submitted by the advocate of the petitioner for obtaining copy of the said award which was received on August 4, 1998. The petitioner has mentioned that as the Special Land Acquisition Officer had made his award on June 8, 1998 an application dated August 14, 1998 was submitted by the petitioner seeking reference to the court either under Section 18 or Section 30 of the Act. A copy of the said application is produced by the petitioner at Annexure L to the petition. The petitioner has averred that between August 12, 1998 and October 13, 1998, several dates were fixed for hearing and the last date of hearing was October 13, 1998. According to the petitioner, on September 21, 1998 he had asked for supply of copies of certain documents which were made available to him on October 13, 1998 and on perusal of the record, the petitioner came to know that the Special Land Acquisition Officer had not acted in accordance with law nor maintained Rojkam properly and therefore, an application dated October 13, 1998 was submitted by the petitioner to the Collector and the State Government for transferring the case from Special Land Acquisition Officer, Unit No.1, Vadodara to any other officer. A copy of the said transfer application is produced by the petitioner at Annexure N to the petition. The grievance made by the petitioner is that though the competent authority had not passed any orders on application dated October 13, 1998 seeking transfer of the case, the Special Land Acquisition Officer, Unit No.1, Vadodara rejected the application submitted by the petitioner under Section 30 of the Act by order dated October 16, 1998 which is antedated as October 14, 1998. According to the petitioner, the Special Land Acquisition Officer, Unit No.1, Vadodara had called him in his office on October 15, 1998 for exploring the possibility of compromise and therefore, on October 14, 1998 no order was passed by the Special Land Acquisition Officer, Unit No.1, Vadodara rejecting the application submitted by the petitioner under Section 30 of the Act but, in fact, the order was passed on October 16, 1998 rejecting the said application. The petitioner has asserted in the petition that the order passed by the Special Land Acquisition Officer, Unit No.1, Vadodara is malafide as well as biased one and therefore, should be set aside. According to the petitioner, sale deed in favour of the petitioner is first in point of time and as the petitioner is the absolute owner of the disputed property, the dispute as to the title of the acquired land ought to have been referred to court under Section 30 of the Act. The petitioner has mentioned that in view of the irregularities committed by the Special Land Acquisition Officer, Unit No.1, Vadodara chargesheet is issued against him for passing award in Compensation Case No.2 of 1995 on the application of the petitioner and as the said officer has illegally rejected the application submitted by the petitioner under Section 30 of the Act, the order impugned in the petition deserves to be set aside. Under the circumstances, the petitioner has filed present petition and claimed reliefs to which reference is made earlier. 4. Mr. Rashmikant Jayashanker Bhatt, Respondent No.6 has filed reply affidavit controverting the averments made in the petition. In the said reply, it is mentioned that the fact that application Exh.5 submitted by the petitioner in Regular Civil Suit No.2383 of 1995 was rejected by the Civil Court is not mentioned in the petition nor it is mentioned by the petitioner that he had also filed an application for interim relief in Special Civil Suit No.614 of 1998 which is pending in the Civil Court, Baroda and that ex-parte interim relief which was granted in favour of the petitioner was later on vacated after hearing the parties. Thus, in the reply, it is emphasised that the petitioner has suppressed material facts from the court and therefore, the petition should be summarily dismissed. According to Respondent No.6, Rajendra Kapilrai Bhatt who was original owner of Block No.779 had executed an agreement to sell the land on February 16, 1991 in favour of one Manharbhai S. Patel who happens to be brother-in-law of the petitioner for a consideration of Rs.3,43,825/- and had also executed on the same day, a power of attorney in favour of Manharbhai S. Patel which was subsequently cancelled on October 29, 1993 and therefore, Manharbhai S. Patel who had no title to the property could not have sold the property to the petitioner and conferred a better title than what he had. The Respondent No.6 has pointed out in the reply that Manharbhai S. Patel who is brother-in-law of the petitioner had executed sale deed dated October 29, 1994 in favour of his brother-in-law i.e. the petitioner for a total consideration of Rs.96,000/- only though he himself had agreed to purchase the said property for a sum of Rs.3,43,825/-. After emphasising that the petitioner failed in his attempt to get the property in question mutated in his name in the revenue record, what is stated by the Respondent No.6 is that the owner of the land Ravindra Kapilrai Bhatt being owner of the property had validly executed sale deed on November 24, 1994 in favour of Vaghjibhai whose heirs and legal representatives had sold the land to Respondents No.6 and 7. The Respondent No.6 has maintained in the reply that pursuant to the sale deed, Mutation Entry was made in his name which is approved by the Mamlatdar and the Prant Officer in accordance with statutory rules but the petitioner has filed an Appeal before the Collector which is pending. The Respondent No.6 has produced at Annexure VI with his reply a copy of the order dated October 16, 1996 passed by the Learned 6th Joint Civil Judge, Senior Division, Vadodara below Exh.5 in Regular Civil Suit No.2383 of 1995 and pleaded that in view of the said order, the petitioner is not entitled to the reliefs claimed in the petition. According to Respondent No.6, possession of the suit land was never handed over to Manharbhai or anyone else by the original owner and as power of attorney executed in favour of Manharbhai was cancelled by the original owner, the Special Land Acquisition Officer, Unit No.1, Vadodara was justified in rejecting the application submitted by the petitioner under Section 30 of the Act. The Respondent No.6 has also maintained in the reply that order passed by the Land Acquisition Officer refusing to refer the matter under Section 30 to the court cannot be made a subject matter of challenge in a petition filed under Article 226 of the Constitution and therefore also the petition should be dismissed. 5. Mr. Rajendra Kapilrai Bhatt, the Respondent No.3 has filed an affidavit-in-reply dated February 2, 1999 stating inter alia that he had executed an agreement to sell on February 16, 1991 in favour of Manharbhai S. Patel who happens to be brother-in-law of the petitioner for a consideration of Rs.3,43,825/- and had also executed a power of attorney in favour of Manharbhai S. Patel but the same was cancelled after service of notice dated October 29, 1993 and that Manharbhai S. Patel had no authority to convey the property to the petitioner. The Respondent No.3 who is original owner of the property has asserted that he being the owner of the property had the right to sell the same to Vaghjibhai Bhagvanbhai Patel and sale deed dated November 24, 1994 executed by him in favour of deceased Vaghjibhai Bhagvanbhai was valid. According to the Respondent No.3, he had directly sold the land in question to Vaghjibhai Bhagvanbhai Patel by registered sale deed after power of attorney executed by him in favour of Manharbhai S. Patel was cancelled. Further what is averred by the Respondent No.3 is that Manharbhai S. Patel had no authority to deal with the land in question after the cancellation of power of attorney executed in his favour and therefore, the petition should be rejected in limine. The petitioner has filed affidavit-in-rejoinder to affidavit-in-replies filed by the Respondents No.6 and 3. He has refuted the claims advanced in those replies and maintained that he is entitled to the reliefs claimed in the petition. 6. Mr. M.H. Gajre, Land Acquisition Officer, Unit No.1, Vadodara has filed reply affidavit on behalf of Respondents No.1 and 2 stating inter alia that the sale deed dated October 29, 1994 executed in favour of the petitioner by power of attorney holder of original owner after cancellation of the same is not legal and does not confer any title on the petitioner. In the reply, the Land Acquisition Officer has claimed that sale in favour of Respondent No.5 i.e. Smt. Bhartiben Ashokbhai Parikh was prior to the publication of Notification under Section 4(1) of the Act and therefore, the decision of the Special Land Acquisition Officer not to refer the matter to the court, as demanded by the petitioner cannot be said to be illegal. This officer in his reply has given particulars about different dates of hearing and claimed that sufficient opportunity was given to the petitioner to represent his case before the Special Land Acquisition Officer and therefore, the decision impugned in the petition should not be regarded as bad in law. What is stressed in the reply is that the objection submitted by the petitioner was decided by the Special Land Acquisition Officer in terms of direction of the High Court and therefore, the claim of the petitioner that the Special Land Acquisition Officer has exceeded his jurisdiction should not be entertained. 7. Mrs. Bhartiben Ashokbhai Parikh who is Respondent No.5 has filed her reply stating that by deed dated August 14, 1988, the Respondent No.3 who was original owner of Block No.779 had sold portion of the land to her for a consideration of Rs.1,27,285/- and as part owner of Block No.779, she was entitled to receive compensation determined by the Special Land Acquisition Officer, Unit No.1, Vadodara. The Respondent No.5 has referred to certain facts relating to sale of portion of land in her favour by the Respondent No.3 and after stating that the Respondent No.3 had received Rs.5,715/more than the agreed amount of consideration, has claimed that the Respondent No.3 had also executed one irrevocable power of attorney in favour of her husband Ashok Manilal Parikh. The Respondent No.5 has also averred in her reply that the petitioner having no title to the property, his claim is rightly rejected by the Special Land Acquisition Officer and the petition should be rejected. 8. Mr. Pradip B. Azad, the Respondent No.1A who was Special Land Acquisition Officer, Unit No.1, Vadodara and had passed the order which is impugned in the petition has filed affidavit-in-reply dated March 3, 1999 and mentioned that he had decided the application submitted by the petitioner strictly in accordance with relevant provisions of the law. After referring to the judgment of the Supreme Court on the point, Mr. Azad has claimed that his decision not to make reference to the court is legal and as he has acted bonafide, the petition should be dismissed. Mr. Azad has denied the allegation made by the petitioner that he had received an amount of Rs.15 to 20 lacs from the claimants, as claimed by the petitioner and called upon the petitioner to disclose source of such a baseless information. After emphasising that the wild allegations levelled against him have no basis, Mr. Azad has stated that these allegations are levelled by the petitioner to invoke sympathy of the court and therefore the petition should be dismissed. Mr. Pradip Bipinbhai Azad has filed another affidavit dated July 28, 1999 controverting all the allegations levelled against him by the petitioner in the petition. Mr. Azad has stated in his reply that the revenue records did not indicate that the petitioner was owner of the land and therefore, no notice was issued to him after publication of Notification under Section 4(1) of the Act. According to Mr. Azad, Notification issued under Section 4(1) of the Act was not only published in the Official Gazette but was also published in Gujarati daily as well as pasted at the office but the petitioner had never filed any objection to the Notification published under Section 4(1) of the Act. In the said reply, it is stated