MALEK ISMAIL NOORBHA ALBHA Vs. STATE OF GUJARAT
LAWS(GJH)-2017-6-275
HIGH COURT OF GUJARAT
Decided on June 16,2017

Malek Ismail Noorbha Albha Appellant
VERSUS
STATE OF GUJARAT Respondents




JUDGEMENT

M.R.SHAH,J. - (1.)By way of this petition under Article 226 of the Constitution of India, the respective petitioners original land owners whose lands have been acquired as far as back in the year 199798 acquired under the provisions of Land Acquisition Act, 1894, acquired for Sardar Sarovar Narmada Nigam Limited for construction of Canal Anti Minor-1, for an appropriate writ, direction and order holding that the notice dated 19.01.2016 to take possession of the land for Canal Anit village undertaken by the respondents on the basis of Award dated 28.09.1999 is ultra vires and bad in law.
(2.)At the outset, it is required to be noted that this is the third round of litigation by the petitioners and others with respect to same subject matter and project and earlier twice the petitioners have lost before this Hon'ble Court. At the outset, it is required to be noted that earlier the petitioners and the others challenged the impugned acquisition of the lands acquired for the construction of Anti Minor-1 Irrigation Canal, of village Anti, Tal: Padra, Dist. Vadodara by way of Writ Petition (PIL) No. 20 of 2012. That by order dated 22.08.2014 the Division Bench of this Court dismissed the said writ petition by observing in para 3 as under:
"3. Having heard the learned counsel for the parties and having perused the materials on record, we are of the opinion that the petition cannot be entertained. The petitioners' view point that the proposed irrigation canal is unlikely to be useful to their village, or that the loss of fertile land would be disproportionate to the benefits flowing from the canal, cannot be the basis for directing the Government not to implement the scheme. Particularly when the Government data shows that the canal would provide irrigation to 719 hectors of land normally, 400 of which would be the land of the village Annti itself, we cannot substitute our opinion for that of the State authorities to hold and declare that the scheme is either not advisable, or not feasible. When after scientific study and collection of data, the State Irrigation authorities have proposed an irrigation scheme, which would benefit not only large number of farmers of the village of Annti, but also other neighbouring villages, particularly in absence of any strong adverse material, the bare statement of the petitioners that the scheme is unviable or unfavourable, cannot be accepte."

(3.)That thereafter, again when the acquiring body started constructing Canal, again petitioners preferred Special Civil Application No. 412 of 2015 and prayed for following reliefs:
"(a) Your Lordships be pleased to admit this petition.

(b) Your Lordships be pleased to issue writ of mandamus or any other writ, order or direction holding that the land acquisition proceedings for canal of Anti village undertaken by the respondents has lapsed and so be quashed.

(c) Your Lordships be pleased to hold, in alternate to relief clause (b), that the said land acquisition proceedings for canal in anti are contrary to law and so be quashed and set aside.

(d). Your Lordships be pleased to restrain the respondents from taking any further action for canal work in village Anti pending admission, hearing and final disposal of this petition.

(e) Your Lordships be pleased to grant such other order and further relief/s that may deemed fit in the facts and circumstances of the case."

3. 1. That considering the earlier order passed by the Division Bench of this Court passed in Writ Petition (PIL) No. 20 of 2012, by which, the Division Bench has dismissed the said writ petition, the Division Bench vide judgment and order dated 13.01.2015 dismissed the said Special Civil Application. At the outset, it is required to be noted that the order passed by the Division Bench of this Court in aforesaid proceedings have attained the finality.

3. 2. That thereafter, again when acquiring body started to take further action to construct the canal/distribuotry and apprehending that again respective petitioners may cultivate the acquired lands in question, the land owners were intimated vide impugned communication dated 19.01.2016, by which, they are informed to cultivate the lands in question as the work of distribuotry/canal is likely to begin, at that stage, again the petitioners have preferred the present petition for the aforesaid reliefs.

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