IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 1169 of 2001
For Approval and Signature:
Hon'ble MR.JUSTICE B.J.SHETHNA
and
Hon'ble MR.JUSTICE N.G.NANDI
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1. Whether Reporters of Local Papers may be allowed : NO
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
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MOTABHAI VASABHAI
Versus
STATE OF GUJARAT
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Appearance:
1. Special Civil Application No. 1169 of 2001
MR SANJAY M AMIN for Petitioners No. 1-2
MR. S.P. SEN,GOVERNMENT PLEADER for Respondents No. 1-2
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CORAM : MR.JUSTICE B.J.SHETHNA
and
MR.JUSTICE N.G.NANDIDate of decision: 10/01/2002
ORAL JUDGEMENT
(Per : MR.JUSTICE B.J.SHETHNA)
1.The petitioners are joint owners of the lands
bearing Survey Nos. 133 Piki admeasuring 47 Acre 27
Gunthas situated at Village Chhadiyali, Taluka Sayla,
District Surendranagar. Record of Rights being Village
Form No. 6 is at Annexure-A.
2.It is the case of the petitioners that the
Respondents – State Government wanted to construct a dam
under the Dhoriyali – Bhogavo Irrigation Scheme in taluka
Sayla of district Surendranagar. For that purpose
different lands were acquired by them and the possession
was also taken over. According to the petitioners the
respondents took away possession of part of the aforesaid
lands belonging to them in the year 1986, and remaining
part of the land of the petitioners got submerged with
the construction of the time. Record of Rights being
Village Form No. 7 & 12 is at Annexure-B.
3.The grievance made by the petitioners in this
petition is that, without following the procedure
provided under the Land Acquisition Act (for short the
“Act”) they have obtained physical possession of the land
belonging to the petitioners and have not paid any
compensation so far, though number of occasions they have
approached the respondents for due compensation; hence
this petition.
4.It is prayed in this petition that, the action of
the respondents taking away lands of the petitioners
without following due procedure of law be declared
illegal and the respondents be directed to either hand
over vacant & peaceful possession of their lands in
question together with the damages or to pay legal
compensation as per the act for the damages suffered by
them.
5.On 19-2-2000 Division Bench of this Court made
rule returnable on 5-3-2000. On March 29, 2001 learned
AGP Shri. Mukesh Patel appeared for the respondents and
prayed for time to file reply to this petition, the time
was granted upto 17-4-2001 and the matter was ordered to
be listed on 19-4-2001. However, for some or the other
reason, it was placed before this Bench only on 7-1-2002.
On the request made by learned counsel for the parties,
it was kept for today.
6.It may be stated that, so far no reply affidavit
is filed by the respondents in this matter.
7.There is a controversy regarding possession of
the land of the petitioners taken over by the
respondents. According to learned AGP Shri. Sen, the
possession still remain with the petitioners, however, he
could not deny the fact that the land of the petitioners
had already been submerged with the construction of the
dam. It is a different matter that because of scanty
rainfall for a particular time the land may not remain
submerged, but that does not mean that the possession of
the land remains with the petitioners. It all depends on
the monsoon. If the monsoon is good then the land is
bound to be submerged, which is not in dispute. Under
the circumstances there is no question of granting the
first prayer made by the petitioners to declare the
action on the part of the respondents taking over parts
of the land as illegal. There is also no question of
directing the respondents to hand over vacant and
physical possession of the land with damages. However,
their prayer regarding compensation can be considered by
this Court. If the land of the petitioners have already
submerged with the construction of the dam, then, the
question of taking over actual possession from the
petitioners or not would not be of much importance. The
fact remains that the petitioners are not in possession
of the their land, which is already submerged in water.
8.Learned counsel Shri. Amin for the petitioners
has annexed copy of the judgment & order dated 20-12-1999
passed by the Division Bench of this Court (Coram: M.R.
Calla & P.K. Sarkar, JJ) passed in Special Civil
Application No. 8500 and 8501 of 1999 and submitted
that, this Court may also dispose of the present petition
in terms of aforesaid order. However, it was submitted
by Shri. Sen, learned AGP for the respondents that, the
facts of that case was totally different. It was a land
in Ahmedabad district whereas in the instant case the
land is of Surendranagar district. In that case actual
possession of the land was taken over, whreas in the
instant case no such possession has been taken over;
therefore the aforesaid judgment will have no application
to the facts of the present case.
9.Whether this petiton would be squarely covered by
the aforesaid Divison bench judgment of this Court or
not, we would not like to go into that quetion. Because,
in our considred opinion, when the petitoners have
practically lost possession of their land, then, they
cannot be atleast deprived of their due compensation. In
that view of the matter, we direct the petitioners to
first approach the Collector, Surendranagar for
reasonable compensation of the land. If they make such
an application within one month from today, then, learned
Collector, Surendranager, shall consider their
application and decide it as early as possible, and not
less than three months from the date of receipt of the
application. Learned Collector shall determine the
amount payable to the petitioners, considering the
compensation given to the adjacent owners of the lands
acquired by the respondents.
10.With these observations and directions this
petition is disposed of. Rule made absolute to the
aforesaid extent. No order as to costs.
Dt: 10-1-2002 (B.J. Shethna, J) (N.G. Nandi, J)
/vgn