MAJIDBHAI ABDULBHAI & OTHERS Vs. STATE OF GUJARAT & OTHER
LAWS(GJH)-2015-2-284
HIGH COURT OF GUJARAT
Decided on February 20,2015

Majidbhai Abdulbhai And Others Appellant
VERSUS
State Of Gujarat And Other Respondents




JUDGEMENT

- (1.)By way of this petition, the petitioners have prayed for the following reliefs:-
[A] be pleased to admit it and allow this petition;

[B] be pleased to quash and set aside the action/decision of the respondents, as per communication dated 21.7.2008 at annexure "G" and dt. 07.08.08 at annexure"H" to this petition, of refusing to accept the demand of the petitioners to re-grant their land beairng S. No.108 admeasurng 1 acre 28 gunthas acquired under LAQ Case No.3/60 by ussing suitable writ, direction and/or order under Art. 226 of the Constitution of India;

[C] be pleased to hold that the petitioners are entitled to regrant of their land bearing S. No.108 admeasuring 1 acre 28 gunthas acquired under LAQ Case no.3/60 at the market price prevailing as on 03/10/1969 and direct the respondents to re-grant the said land to the petitioners at the market price prevailing as on 03/10/1969 by issuing Writ of Mandamus or any other Writ, direction and/or under Article 226 of the Constitution of India;

[D] xxx

[E] xxx"

(2.)The facts of this case are that one Pola Dadla, grand father of the petitioners was the owner of the agriculture land bearing survey no.108 admeasuring 3 Acre 60 Gunthas of Vadasada Village. Out of the said land initially land admeasuring 1 Acre 20 Gunthas was acquired for Bhadar main canal under LAQ Case No. 3/60. However, because of the change in the location of the canal, again land admeasuring 1 acre 28 Gunthas was additionally acquired from the same survey number under LAQ Case No. 3/60. It is the case of the petitioners that the land admeasuring 1 acre and 28 Gunthas, which was acquired in the first stage under LAQ No. 3/60 remained as surplus and therefore, they made applications to the State Government for re-grant of the said land to them, however, the said request of the petitioners was rejected by the State Government. Hence, this petition.
(3.)Learned advocate for the petitioners has submitted that in the Certificate dated 20.06.2008 issued by the Deputy Executive Engineer, Jetpur, it has been categorically stated that there is no encroachment in the land in question and the petitioners are in possession of the said land. Therefore, learned advocate for the petitioners urged that in view of the aforesaid facts and in view of the provisions of the Land Acquisition Act and this Court may allow this petition.
3.1. In support of his contention, he relied on the decision of this Court in the case of Mahmadtarik Akbarali Khoja vs. State of Gujarat and 2, 2014(0) GLHEL-HC 231880, more particularly paragraph Nos. 8 and 9, which read as under:-

8. The Apex Court had an occasion to interpret the above-referred Section in the case of Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and others, 2014 AIR(SC) 982, wherein at para 10 and 11, it was observed thus:- 10. Insofar as sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24(1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions of the 1894 Act as if that Act has not been repealed.

11. Section 24(2) also begins with non obstante clause. This provision has overriding effect over Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz;

(i) physical possession of the land has not been taken or

(ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed.

On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act.

9. In the present case, we are not concerned with the situation of a case where award was passed and therefore, we find that Section 24(2) of the New Act may not be applicable. Since in the present case, award has not been passed, we are of the view that Section 24(1) of the New Act would apply. As per Section 24(1) of the New Act read with the above-referred observations of the Apex Court in a case where no award under Section 11 is made, the provisions of the New Act shall apply relating to the determination of compensation. To say in other words, proceedings under the Old Act may continue except for compensation under the New Act. Such would mean that the provisions of the Old Act may continue for the purpose of considering the legality and validity of the acquisition proceedings and/or for continuation of the land acquisition proceedings. In our view, as in the present case, award has not been passed under the Old Act, it cannot be said that by virtue of the provisions of the New Act, the proceedings would lapse but at the same time, the provisions of the Old Act may continue for the purpose of examination of the legality and validity of the land acquisition proceedings. Section 11A of the Old Act reads as under:-

11A. Period within which an award shall be made- The Collector shall make an award under section 11 within a period of two years from the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencements.

Explanation: In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.

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