Decided on December 09,2014

Keshulal Harlal Nayi Appellant


C.L.SONI, J. - (1.) THE petitioners who are four in number have claimed to be the tenants and occupiers of the shops bearing No. 8/133/1, 8/133/2, 8/133,3 and 8/133/4 at Ambaji Temple and the landlord of the said shops is stated to be respondent No.7 herein.
(2.) IN this petition filed under Article 226 of the Constitution of India, the petitioners have prayed to quash and set aside the notification under section 4 and 6 of the Land Acquisition Act, 1894 ("the old Act") and further prayed to direct the respondent Collector to abide by the resolution of the respondent No.2 Trust dated 1.11.2012 and allot shops No.12, 13,16 and 18 to the petitioners in the Temple Parisar with the compensation as per the resolution . By amendment, the petitioners have added further prayers so as to pray to quash, set aside and modify the award passed under section 11 of the old Act by directing the competent authority to extend the same benefit given to the owner of Final Plot No.41 i.e. to allot the shops to the petitioners in addition to compensation.
(3.) WE have heard the learned Advocates for the parties. Learned Advocate Mr. J.J. Yajnik appearing for the petitioners submitted that the petitioners being tenants of the four shops of Final Plot No. 42, are entitled to the benefits of compensation under law with benefit of allotment of shops given to the other similarly situated persons as per the resolution of the trust. Mr. Yajnik submitted that the Collector is the Chairman of the trust and the trust passed resolution to give shops to the owner of final plot no.41 with compensation of Rs.2501.00 per square ft. for acquiring final plot no.41. Mr. Yajnik submitted that in that very resolution, the plot no.42 whereon the petitioners have their shops as tenants is considered, however, the decision in respect of the petitioners was kept pending. Mr. Yajnik submitted that the petitioners have, thus, become entitled to similar treatment given to the other shop holders whose shops on plot No.41 had gone in acquisition. On the other hand, learned Advocate Mr. H.S. Munshaw appearing for the respondent -Trust submitted that the petitioners, at the best, can claim the apportionment of compensation under the old Act pursuant to the award made under section 11 of the old Act for acquisition of final plot no.42 whereon the petitioners have their shops but the petitioners cannot claim, as a matter of right, an allotment of shops to them over and above the compensation. Mr. Munshaw submitted that the petitioners can also not claim exclusive right of allotment of the shops irrespective of the right of the owner and, therefore, in absence of any provision in the award for allotment of the shops, the petitioners cannot claim allotment of the shops on the basis that some resolution was passed by the trust in connection with the other final plot. Mr. Munshaw submitted that however, in order to see that the petitioners could be given some extra benefit, the trust has agreed in principle to allot two shops being shop no.14 and 15 ad -measuring 45 square ft. and 67 square ft. respectively with the compensation of Rs.6,57,000.00 to the petitioners with respondent no.7 as owner of the final plot no.42 and it will be for the petitioners and the owner to decide within themselves to share the shops and compensation. Mr. Munshaw submitted that such offer is on a condition that the petitioners and the owner of final plot no.42 file joint declaration before the trust to have compensation with above two shops by way of final compensation.;

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