Ravi R. Tripathi, J.@mdashSkeletons are not unknown in judicial matters, particularly, when plaintiff or petitioner dies, his heirs are brought on record. But the case on hand is a unique case wherein except fraud and misrepresentation nothing else is coming out.
To start with the present petition, the present petition being Special Civil Application No. 7105 of 2013 is filed by two petitioners, (i) Mayur Non Trading Corporation through its President, Mahmad Ismail Salemahmad Merchant and (ii) Jamnagar Industrial Infrastructure Foundation, through its Chairman, named, Jamabhai Shamjibhai Faldu and relief prayed for in this petition are as under:
17(B) Declare that the proceedings of acquisition arising from the notification u/s. 4 dated 8.3.94 followed by sec. 6 notification dated 1.5.96 in award dated 30.9.99 qua land bearing survey No. 708 ad measuring acres 13 gunthas and 70ad measuring 23 acres 16 gunthas have stood vitiated in view sec. 12(2) notice dated 1.9.2012 (Annexure L) and quash and set aside the entire proceedings accordingly in the interest of justice.
(C) Alternatively, declare that in view of date of notice u/s 12(2) dated 2012 (Annexure L) the petitioners are entitled for compensation of their lands at the market value prevailing as per the recent Jantri as on 1.9.2012 with all other consequential benefits and interest etc. available to them under the law.
(D) Your Lordships be pleased to quash and set aside notification dated 8.3.94 and award dated 30.9.1999 as also subsequent notice dated 1.9.2012 issued for taking possession from the petitioners by declaring that the award is nullity and therefore, consequential notices are illegal and bad in law.
(emphasis supplied)
In the opening of the matter the Court inquired as to how come these petitioners have right to challenge the acquisition proceedings which started in the year 1994 with issuance of Notification u/s 4 of the Land Acquisition Act, on 25.03.1994 (the petitioners have mentioned it to be 08.03.1994) and Notification u/s 6 of the Land Acquisition Act was dated 01.05.1986 and award was passed on 30.09.1999. The learned advocate for the petitioners submitted that the matter is having a little chequered history and that these petitioners have become owners of the land by virtue of unregistered agreement to sell which was of the year 1981. He gave date of unregistered agreement to sell to be 11.02.1981. It is good that non-trading association restricted the exercise of stretching date only upto 1981. Otherwise, he could have said that the agreement to sell was yet older.
The learned advocate for the petitioners, after the matter was heard for quite some time and when repeatedly inquired about registered sale deed which he mentioned yesterday, viz. 21.01.2014, to be 06.11.1986, submitted that, ''there is no registered sale deed, but registered agreement to sell, viz. Dated 30.10.1986 is there''. We then inquired as to when non trading association was registered. The learned advocate for the petitioners said that it was registered on 08.10.1986.
(emphasis supplied)
The intentions and ulterior motives can be culled out right from day one of the entire exercise undertaken by the present petitioners after having come to know that there is Notification u/s 4 of the Land Acquisition Act in the year 1994. They planned to dupe the original land owners and that is why by creating a story that there was an agreement to sell of the year 1981, then non trading corporation was registered in the year 1986, a registered agreement to sell dated 30.10.1986 was executed. They managed to get seal of the court on this entire ill design by filing Special Civil Suit in the Court of the learned Civil Judge, Senior Division, Jamnagar bearing Special Civil Suit No. 148 of 1996. A copy of the plaint is produced at Annexure ''K'', page 89 onwards. Interestingly, there are four plaintiffs in the Special Civil Suit. They are: (1) Jayubhai Natubha Jadeja, (2) Kantilal Ravjibhai Adotara, (3) Chandulal Devsi Faldu, and (4) Ramesh Vasram Busa.
In this Special Civil Suit, Mayur Non Trading Corporation, through its President, Raide Versi Gadhvi is impleaded as defendant No. 1; Gujarat Industrial Development Corporation is impleaded as defendant No. 2; and as defendant No. 3 deceased-Dost Mohammed Ismail Sumra is mentioned through his heirs 3/1 to 3/10. It is mentioned that all are major and residing near Chuna Na Bhatta, Near Kisan Chowk, Jamnagar. A copy of plaint is produced at Annexure ''K''. It bears an endorsement that an application was filed being Exh. No. 54 with yet another application Exh. 102. An order was passed allowing amendment of cause title. In view of that Mayur Non Trading Corporation is transposed as plaintiff in place of original plaintiffs. This amendment was carried out on 29.12. xxxx (Mr. Hasit Joshi, learned advocate for the petitioners, on instructions of Shri R.P. Desai, instructing advocate, practising at Jamnagar states that the year is 1996).
It will be very interesting to look at the prayer clause of this suit, because ill designs started gaining shape with the filing of this suit. Reliefs are in para 23. Translated version of Prayer Classes (A) to (E) are reproduced hereunder:
(23) Under the aforesaid circumstances, such a relief is sought by bringing this suit that,
(a) Be pleased to pass an order to the effect that after getting the land in suit/contract declared Non-Agricultural land, the respondent may get the registered sale deed executed in favor of the plaintiff that is to say the relevant plot in name of the relevant members as per the list produced herewith and in this way he may get the specific performance of the contract performed and if he fails in doing so, the documents be executed and legal proceedings be done through the Court Commissioner. AND
(b) Be pleased to pass an order of perpetual injunction to the effect that the respondents may themselves or through their assistants, servants, agents, attorneys, heirs not transfer, assign the land in suit/contract to any body through contract, sale, gift or in any other way or may not create encumbrance, charge or get anybody to do so and the respondent may not pay the proposed amount of acquisition to the plaintiff, AND
(c) Considering the entire facts of this suit, be pleased to pass any other kinds of reliefs which can be passed or get passed under the law and equity in the interest of all members and the plaintiffs may appear to be entitled to such other statutory or equitable relief. AND
(d) Be pleased to grant any other admissible relief on the basis of the adduced evidences and the evidences adduced during the course of hearing of this suit. AND
(e) It is humbly requested to pass a decree of recovery by the plaintiff from the respondents about the entire expenses borne in this suit and likely to be borne in future in favour of us the plaintiffs.
There is an amendment to this prayer clause also, because Mayur Non Trading Corporation was earlier impleaded as defendant No. 1. Therefore, in the prayer clause, where it was stated, "in favour of defendant No. 1", is changed to, "in favour of plaintiff". Earlier relief was sought against defendant No. 1 and 3, that is scored off and it is mentioned, ''defendants''. Similarly, in clause (b) ''defendant No. 2'' is scored off and only ''defendant'' is mentioned. Likewise, ''defendant No. 3'' is scored off and in its place ''plaintiff'' is mentioned. The endorsement in the margin shows that this is pursuant to order passed below Exh. 178. This amendment was carried out on 04.09.2008 under the signature of advocate Shri Rajesh P. Desai. The Court is unable to understand how come Mayur Non Trading Corporation, which was impleaded as ''defendant No. 1'' could be transposed as ''plaintiff''. Besides, reliefs amended by filing Exh. 178, are found to be self contradictory as there appears to be ''non-application of mind''.
At this juncture, learned AGP Mr. Rashesh Rindani and learned advocate Mr. R.D. Dave appearing for the State Government and Gujarat Industrial Development Corporation respectively invited attention of the Court to para 2 of the plaint, which is not amended despite there is change in ''plaintiff'' and ''defendants'', as Mayur Non Trading Corporation is transposed as plaintiff which was earlier impleaded as defendant No. 1.
In para 2 it is stated that, ''there are 220 members of said institution''. So far as suit is concerned rights and interests of all the members are interwoven with each other. All these members passed resolution to authorise present plaintiffs, who are members of defendant No. 1 for their own as well as on behalf of all the members of the institution (Mayur Non Trading Corporation) and therefore, to eliminate a technical defect necessary permission may be granted to file suit.
This was required, possibly because, in para 1 of the plaint it is stated by the plaintiff that defendant No. 1-Mayur Non Trading Corporation is a registered institution. Its registration number is G-1263. Hereinafter defendant No. 1 is referred to as an ''institution''. In light of transposition of Mayur Non Trading Corporation as plaintiff, the relief is sought against the plaintiff himself. Thus, it is clear that this suit was nothing but a very calculated attempt on the part of the unscrupulous persons to dupe the original land owners and to pocket the cream out of the acquisition proceedings.
2. The very fact that the present petitioners are basing their claim on the ''consent decree'' passed in Special Civil Suit No. 148 of 1996, not only deserves to be dismissed but the matter is required to be referred to the Crime Branch for its proper investigation so that in future such mischief is not played by similar such people.
3. The learned advocate for the petitioners did not mention a word about Special Civil Suit No. 59 of 1997 filed by Lalchand Tarachand Bhojwani and Narshibhai Harjibhai Majevadia as plaintiffs against Mayur Non Trading Corporation as one of the defendant. A copy of the purshis filed in the said suit for drawling consent decree is produced at pages 79 to 82 of this compilation and consent decree passed in that suit is produced at pages 83 to 86. The Court restrains itself from making observations about the conduct of the learned advocate for the petitioners, who did not refer to this Special Civil Suit at all in his submissions.
4. The matter does not end here. In 1999, a Special Civil Application No. 7191 of 1999 was filed before this Court. The petitioner was ''Mayur Non Trading Corporation'' and the State of Gujarat along with GIDC were respondents. This Court [Coram: Hon''ble M/s. Justices M.R. Calla & J.R. Vora, (as they then were)] passed the following order on 24.01.2001:
Mr. R.M. Chhaya with Mr. A.H. Desai for petitioner. Mr. Umesh Trivedi, AGP for Respondents No. 1 and 2 and Mr. D.U. Shah for Respondents No. 3 for GIDC. During the course of the argument, it was pointed out that the petitioners have made the Representation to the GIDC during the pendency of this petition on 7.12.2000, which was received by the Registry Branch of the GIDC on 11.12.2000. In view of the facts and circumstances of the case, we direct that such Representation has been filed by the petitioner before the GIDC may be considered and decided by the GIDC in accordance with its Policy by reasoned order within a period of three months from the date of certified copy of this order is produced before the authority by the petitioner. This writ petition is decided and disposed of with the direction as above. Notice is hereby discharged. D.S. Permitted.
(emphasis supplied)
The learned advocate for the petitioners submitted that this representation was not decided by Gujarat Industrial Development Corporation though it was directed to decide within three months. Therefore, another Special Civil Application was required to be filed being Special Civil Application No. 4951 of 2002.
Plain and simple meaning of the submission in the manner it is made will be that, ''the very same petitioners'' were constrained to approach this Court again, on account of ''not deciding of the representation'' referred to in Special Civil Application No. 7191 of 1999. But to our surprise it was pointed out by learned AGP Mr. Rashesh Rindani for State of Gujarat and learned advocate Mr. Dave for Gujarat Industrial Development Corporation that second petition being Special Civil Application No. 4951 of 2002 was filed by ''Jamnagar Industrial Infrastructure Foundation'' (the one who is joined in this petition as petitioner No. 2).
Interestingly, though it is submitted by the learned advocate for the petitioners that, ''the representation was not decided'' (representation dated 07.12.200). It is on record that the said representation was decided by order dated 19.10.2002. This situation arising from misleading submission is explained by learned advocate for the petitioners by saying that, ''order dated 19.10.2002 was subsequent to date of filing petition'', viz. Special Civil Application No. 4951 of 2002.
From reading of order dated 20.04.2009 in Special Civil Application No. 4951 of 2002, ill designs of the petitioners became crystal clear. The persons interested just wanted to prolong the matter and confuse the respondents so that as and when the opportunity arises by managing with one or more officers of the respondents undue benefit is obtained. This can be seen from the order, which was passed in Special Civil Application No. 4951 of 2002, which reads as under:
Mr. Hriday Buch with Mr. Anshin H. Desai states that in view of the last portion of the letter dated 19.10.2002 from General Manager (Land Acquisition) of the GIDC to President of Mayur Non-Trading Corporation (petitioner No. 2 herein) annexed to the reply affidavit dated 20.1.2003 of Mr. B.M. Khanama, Regional Manager, Rajkot of GIDC, the petitioner seeks leave to withdraw this petition.
(emphasis supplied)
Leave as prayed for is granted.
The petition stands disposed of as withdrawn. Rule is discharged.
5. In this regard the contents of order/communication dated 19.10.2002, affidavit dated 20.01.2003 and the order obtained in 2009, are important. One thing which was sure to happen was that, ''the petitioners were not to lose anything, even if there is delay''. They were out to obtain maximum compensation, which may be paid at any time. Otherwise any prudent man would have immediately requested the court to take up the matter on any day after 20.01.2003 (the day on which affidavit was filed and order/communication dated 19.10.2002 was produced). But the petitioners were never interested in the matter coming to an end. That is why matter was heard only on 20.04.2009 and the aforesaid order was passed.
6. The learned advocate for the petitioners, like the Special Civil Suits, did not mention a word about filing of this third petition. Non mentioning of these material facts are explained by the learned advocate by saying that he is discharging his duties with all bona fides at his command and he is only presenting the facts for the consideration of the Court. Though it is a case of ''suppression'', technically he cannot be held guilty of suppression of material facts, because a copy of order passed by this Court in Special Civil Application No. 12982 of 2012, 12364 of 2012 and 13031 of 2012 is produced at Annexure ''R'' (page 164). Learned AGP Mr. Rashesh Rindani made available for perusal a copy of the memo of petition being Special Civil Application No. 12364 of 2012 which was served to the State of Gujarat. The title of the petition shows that, ''the petitioner in Special Civil Application No. 12364 of 2012 is Mayur Non Trading Corporation, through its President, Mahmad Ismail Salemahmad Merchant''. It is filed against State of Gujarat, Officer on Special Duty and Gujarat Industrial Development Corporation. So far as Special Civil Application No. 13031 of 2012 is concerned it is filed by one Prabhulal Lalji Rathod, but in that petition one Khatijaben Jivanbhai is impleaded as respondent No. 4 without supplying any address. One Noormohmad Hasambhai is impleaded as respondent No. 5, stating that respondents No. 4 and 5 are residing at Kishanchok Road, Opp Unani Kandori, Sumra Chali, Jamnagar. Respondent No. 6 is ''Jamnagar Industrial Construction Foundation'' and respondent No. 7 is Mayur Non Trading Corporation. The address of respondent No. 7 is - through the Chairman, having office at near Darbargadh, Jamnagar. We are not going into the question whether it was at all sufficient to serve process of this Court. May be that Prabhulal Laljibhai Rathod, petitioner is going to communicate the order/s of this as and when passed. The Court passed the following order:
The learned counsel appearing for the respective petitioners pray that as the last date of publication of notification u/s 6 of the Land Acquisition Act was 11.03.1998 and therefore, if the period of two years is to be counted, the award may be said as within the period of two years. Hence, the ground u/s 11A of the Land Acquisition Act may not be available. But the petitioners are desirous to raise the other contentions including that for payment of compensation in the year 2013 based on the notification u/s 4 of the year 1944 (sic., 1994). Therefore, they pray that the present petitions may be permitted to be withdrawn with a view to file a fresh petition challenging the acquisition on the ground other than available u/s 11A of the Land Acquisition Act. It was also prayed that until the aforesaid course is undertaken, the respondents may not create irreversible situation and therefore, either they may make statement for not to take possession for some time or this Court may grant protection.
2. It is observed that the status quo as prevailing over the land in question shall be maintained for a period of two weeks from today. It is also observed that rights and contentions of both the sides in the fresh petition shall remain open, except the ground of Section 11A of the Land Acquisition Act.
3. Permission granted. Disposed of as withdrawn.
7. It is thereafter that the present petition is filed being Special Civil Application No. 6871 of 2013, by the petitioner of Special Civil Application No. 12982 of 2012. Special Civil Application No. 7978 of 2013 is filed by the petitioner of Special Civil Application No. 13031 of 2012. Special Civil Application No. 7105 of 2013 is filed by the petitioner of Special Civil Application No. 12364 of 2012 along with Jamnagar Industrial Infrastructure Foundation, which was not the petitioner in Special Civil Application No. 12364 of 2012, but was respondent No. 7 in Special Civil Application No. 13031 of 2012.
8. So far, the learned advocate for the petitioners has not uttered a word explaining as to how ''petitioner No. 2'' acquired any interest in the land in question whereby he can join petition as petitioner. This is sufficient to show that the present petition is filed by the persons, who can certainly be branded as ''unscrupulous persons'', who are out to dupe the original land owners under the guise of entering into the shoes of the original land owners.
9. Learned advocate for the petitioners relied upon a decision of Division Bench of this Court in the matter of
LAND LAWS - Constitution of India, 1950 - Art. 14, Art. 19, Art. 21, Art. 31A and Art. 300A - Land Acquisition Act, 1894 - S. 4, S. 6, S. 11, S. 12, S. 30 and S. 31 - Acquisition of land for public purpose - Delay in payment of compensation - Acquisition of land took place in 1991 - However, the possession was never taken - Even the compensation was also not given to the land owners - The land owners were offered compensation by notice u/s. 12 after inordinate, unexplained and unjustified delay of more than 12 years and that too at the rate determined on the basis of notification issued before 15 years of the offer - Held, unreasonable and unexplained delay of more than 12 years in actually offering the payment of compensation and demanding the possession has vitiated the acquisition of land - Further held, if the acquisition of the land is permitted to stand in spite of offer of compensation at the market value pegged at the price prevailing before 15 years and even the possession was never taken by the acquiring authority, the action amounts to Abrogating Fundamental Rights under Art. 31A of the Constitution - The impugned award of 1991 and notices u/s. 12 based thereon are quashed and set aside.
Learned advocate for the petitioners submitted that his case is directly covered by this judgment and therefore, his petition should be allowed and reliefs prayed for should be granted.
This Court with all humility at its command is not able to restrain from observing that this is not the way of arguing a matter before the High Court. In absence of any submission which can convince this Court to accept the submissions of the learned advocate for the petitioners, refuses to hold that the said judgment is applicable to the facts of the case on hand. Instead, it is deemed proper to decide the matter on merits and in light of the facts set out herein above.
10. As against this, learned AGP Mr. Rashesh Rindani relied upon the judgment of the Hon''ble Apex Court in the matter of
15. The issue of maintainability of the writ petitions by the person who purchases the land subsequent to a notification being issued u/s 4 of the Act has been considered by this Court time and again. In
16. Similarly, in
17. In
18. In view of the above, the law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor''s title.
11. Thus, the Court is of the opinion that the present petition is nothing but a glaring example of mischief being played not only to defraud the original land owners but also to the public Corporation - Gujarat Industrial Development Corporation. Therefore, the petition deserves to be dismissed with cost, which must not be an ordinary cost, but an exemplary cost and payment of which should be made condition precedent for filing further proceeding in the matter so that a message goes to unscrupulous persons like the present petitioners.
12. At this juncture, learned advocate Mr. R.D. Dave invited attention of the Court to the fact that Gujarat Industrial Development Corporation paid price of acquisition right in the year 1998 and in turn, Officer on Special Duty drew cheques on 28.01.1998 which were offered to the original land owners, but the original land owners, 36 of them, refused to accept the same. The Court is of the opinion that once the body for whom the land is acquired pays the amount of compensation to Officer on Special Duty, it is sufficient compliance of the requirement of payment of compensation which in turn came to be refused by the land owners, may be because they were protesting against the acquisition.
So far as the question of possession of land is concerned it is observed by the Hon''ble the Apex Court and this Court that when acquisition is on a large scale, possession is taken in a manner befitting to such acquisition. May be because of the indulgence of the officers of the body for whom the land is acquired or for any other reasons, which may not be possible to be spelled out, the original land owners continued to enjoy the fruits of such land, cannot be the decisive factor to pronounce on the legality and validity of acquisition.
In view of that this petition fails and the same is dismissed. The Registry is directed to send a copy of the judgment and order in Special Civil Suit No. 148 of 1996 passed by the learned Civil Judge, Senior Division, Jamnagar, to the Collector, Jamnagar for taking necessary action of inquiring and getting investigated, if required, by filing necessary criminal complaint so that the truth is revealed.
Taking a lenient view in the matter the Court restrains itself from referring the conduct of the learned advocate for the petitioners to the Bar Council as the learned advocate submitted that if the Court has felt that he has exceeded his role in presenting the facts of the case, he apologizes the same.
Learned advocate Mr. Hasit Joshi for the petitioners submitted that the petitioners will not be able to bear any cost in the event it is imposed by the Court. In view of that though it is observed that the petition deserves to be dismissed with exemplary cost, taking the submission of the learned advocate for the petitioners on its face value, cost is not imposed.
At this juncture, learned advocate Mr. Hasit Joshi for the petitioners requested that interim relief which is operating so far may be continued for some time so as to enable the petitioners to approach the Hon''ble the Apex Court. In the consent decree drawn in Special Civil Suit No. 59 of 1997 at page 86B at page 86B (typed copy of consent decree), it is specifically mentioned that possession has continued to remain with the original land owner, viz. Khatijaben Jivanbhai Sumra. In view of that specific averment the prayer for extension of interim relief is mischievous.
The submission made with regard to capacity to bear cost recorded hereinabove and the submission made now are self contradictory. Earlier the learned advocate for the petitioners submitted that the petitioners will not be able to bear any cost and now he is seeking extension of interim relief so as to approach the Hon''ble the Apex Court. Meaning thereby, the petitioners can bear the cost of approaching the Hon''ble the Apex Court. That being so, the earlier order of not imposing cost is recalled and cost of Rs. 1,50,000/- (Rupees one lac and fifty thousand only) is imposed, which should be deposited by the petitioners as a condition precedent for filing any proceeding further. This cost is going to be borne by the Members of ''Mayur Non Trading Corporation'' who are stated to be 220. Besides, there is second petitioner who also must be having members per head the cost will be less than Rs. 700/-.
So far as the question of extension of interim relief is concerned, this Court will not like to be a party to the ill design, ill motive and mischievous attempt on the part of the petitioners. Hence the interim relief granted earlier is not extended and is hereby vacated.
