Patel Naranbhai Jesangbhai vs Special Land Acquisition Officer and Another

K.A. Puj, J.—The Petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the orders of the Respondents dated 16.6.2010 and 28.8.2010 in respect of the application preferred by the Petitioner u/s 28A of the Land Acquisition Act. The Petitioner has also prayed for the direction to the Respondents for reassessment and reconsideration of the order dated 16.6.2010 and 28.8.2010 whereby the Petitioner''s application u/s 28A was rejected by the Respondents. Lastly the Petitioner has prayed for direction to the Respondents to award compensation under the Land Acquisition Act by entertaining his application u/s 28A of the Act.

This Court has issued notice on 6.12.2010. Pursuant to the notice an affidavit-inreply was filed by the Dy. Mamlatdar and Special Land Acquisition Officer on 7.2.2011. The Petitioner has filed further affidavit in support of the petition alongwith certain other documents on 7.4.2011.

It is the case of the Petitioner that the Petitioner has purchased the land in question from the original owner in 1989 and since then the possession and occupation of the land was with the Petitioner in which he was doing agricultural activities till acquisition of the land by the Respondent authorities. The land in question was acquired by the Respondent authorities in accordance with the provisions of law, after issuance of Section 4 notification and issuance of declaration u/s 6 of the Act. u/s 11 of the Act, an amount of compensation of Rs. 4.50 was fixed upon which 30% solatium and 12% price rise was given and award was declared on 31.8.1999 by Special Land Acquisition Officer, Mehsana.

Being aggrieved by the said order dated 31.8.1999, other claimants/original land owners filed objection applications and demanded more amount of compensation. The Collector, Mehsana, has preferred Reference to the District Court, Mehsana, and the District Court, Mehsana, decided the said References vide its order dated 13.5.2009, wherein further amount of Rs. 71.10 was awarded alongwith 30% solatium and 12% price rise and also 9% interest for the first year and 15% interest for the remaining period.

The Petitioner thereafter alongwith other applicants preferred applications u/s 28A of the Act for the compensation as awarded to the other claimants/original land owners in the same group of references as decided by the District Court on 13.5.2009. Since no order was passed by the Respondent on the said application, the Petitioner filed reminder application on 13.4.2010. The said application was ultimately rejected by the Respondent vide his order dated 16.6.2010 holding therein that since the Petitioner has purchased the land in question on 24.1.2000 i.e. much after the notification u/s 4 was issued on 20.7.1997 and hence as per the provisions of the Act without prior permission of the competent authority the said land could not be purchased after publication of notification u/s 4 of the Act.

It is this order which is under challenge in the present petition.

Mr. Tejas Satta, learned advocate appearing for the Petitioner has submitted that the Petitioner has filed an application u/s 28A of the Act within time stipulated therein and hence it is the duty of the Respondents to decide the same on merits. He has further submitted that the Respondents have acquired land from the Petitioner only. The name of the Petitioner is already entered into the revenue record and hence the Petitioner''s application could not have been rejected on the ground that sale deed was executed subsequent to the date of publication of the notification u/s 4 of the Act. He has further submitted that the legislative intention behind enacting this Act is to give equal compensation to the persons whose lands had been compulsorily acquired by the Government under the same award and same notification u/s 4 of the Act, so that anomalies and inequality in determination and payment of compensation by the Collector can be avoided. He has further submitted that Section 28A of the Act contains beneficial provisions. It provides for an additional remedy to all aggrieved persons, whose lands have been acquired, to call upon the Collector to pay compensation at the rate determined by the Court in other similarly situated cases. It also provides for enhanced compensation to those land owners, who have not preferred reference u/s 18 of the Act. He has further submitted that an agreement to sell was entered into with the original land owner in the year 1989 and on payment of full consideration possession was handed over to the Petitioner. Simply because sale deed was executed in the year 2000 the Petitioner could not have been denied benefit of additional compensation which is to be awarded u/s 28A of the Act. He has further submitted that there is no provision under the Act to take any prior permission before executing the sale deed, once a notification is issued u/s 4 of the Act. The impugned order passed by the Land Acquisition Officer is, therefore, absolutely illegal and deserves to be quashed and set aside.

Mr. Rashesh Rindani, learned Assistant Government Pleader appearing for the Respondents, on the other hand, has submitted that the other similarly situated land owners preferred reference application before the District Court, Mehsana being Reference Application Nos. 1800 to 1809 of 2002 as contemplated u/s 18 of the Act. The District Court, Mehsana, has passed an order on 13.5.2009, awarding compensation to the tune of Rs. 71.10 per sq. mtr. The Petitioner, instead of filing reference preferred an application u/s 28A for grant of the amount of compensation which is awarded by the District Court vide its order dated 13.5.2009. Since the Petitioner has purchased the acquired land by way of registered sale deed dated 24.1.2000, the Petitioner was not owner of the land at the time of issuance of Section 4 notification on 20.7.1997 nor on the date of passing of an award u/s 11 of the Act on 31.8.1999. He has, therefore, submitted that the Petitioner is not entitled for the amount of compensation awarded by the District Court to similarly situated persons. He has further submitted that by mistake the amount was given to the Petitioner at the time of making payment of the amount as per the award dated 31.8.1999. He has, therefore, submitted that since, the application u/s 28A of the Act was rightly rejected by the Land Acquisition Officer. No interference is called for. He has, therefore, submitted that the petition deserves to be dismissed.

Having heard learned Counsel appearing for the parties and having gone through their respective pleadings and the provisions of the Act, the Court is of the view that the Respondent authorities are not justified in rejecting the application only on the ground that no prior permission of the competent authority was taken while executing the sale deed in respect of the land in question. The learned Assistant Government Pleader failed to point out any provision under the Act which requires that a person is under an obligation to take prior permission for execution of sale deed once the notification u/s 4 of the Act is issued. It is an admitted position that the Petitioner has entered into agreement to sell way back in 1989 and since then the Petitioner is in possession of land in question. Even the land was acquired by the Respondent authorities and possession was taken from the Petitioner. Not only that, as per the award the amount of compensation was paid to the Petitioner and not to the original land owners. It is true that the Petitioner has not made any reference to the District Court. However, once the District Court has decided the reference and additional amount of compensation is paid to the other similarly situated land owners, the Petitioner has every right to move application u/s 28A of the Act demanding the same compensation as was given to the other similarly situated land owners. The legal position is that the subsequent purchaser after issuance of the notification u/s 4 cannot challenge the acquisition proceeding but he is entitled to claim compensation that may be awarded in respect of the said land.

In the case of U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, , the Apex Court held that after the notification u/s 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property. The sale is void against the State and the purchaser acquired no right, title or interest in the land. Consequently, the subsequent purchaser cannot challenge the validity of the notification or the regularity in taking possession of the land before publication of the declaration u/s 6. The original owner has the right to the compensation u/s 23(1) of the Act. Consequently, though the Respondent acquired no title to the land, at best he would be entitled to step into the shoes of the owner and claim payment of the compensation, but according to the provisions of the Act. It is settled law that the price prevailing as on the date of the publication of the notification u/s 4(1) is the price to which the owner or person who has an interest in the land is entitled to. Therefore, the purchaser as a person interested in the compensation, since he steps into the shoes of erstwhile owner, is entitled to claim such compensation.

Based on this decision it is rightly contended by the Petitioner that he is entitled to additional compensation and his application u/s 28A of the Act must be decided on merits.

In view of the above findings, we allow this petition directing the Respondent authorities to decide the application u/s 28A of the Act in accordance with law and award additional compensation as per the statutory provisions.

Accordingly, this petition is allowed. Rule made absolute to the above extent without any order as to costs.