SHIVLALBHAI VAIKUNTH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By filing the instant petition under Articles 226 and 227 of the Constitution, the petitioners have prayed to quash the order dated June 12, 1996, passed by the Deputy Collector and Land Acquisition Officer, Rehabilitation (Irrigation), Junagadh, by which the award dated February 10, 1995, made under Section 11 of the Land Acquisition Act, 1894 ("the Act" for short) in LAQ Case No. 46 of 1989 came to be corrected. The petitioners have further prayed to direct the Reference Court to decide Land Acquisition Reference Case Nos. 1257 of 1999 and 1258 of 1999 on the basis of original award dated February 10, 1995, and not on the basis of the corrected award dated June 12, 1996.

(2.) The two petitioners, i.e. Mr.Shivlalbhai Vaikunth Sankaliya and Mr.Bhailal Vaikunth, claim to be the owners of Survey No. 11/1 of village Bela, District: Junagadh. According to them, the said survey number was admeasuring 1 Hectare - 49 Are - 73 sq.mtrs. The Executive Engineer, Junagadh Irrigation Scheme, proposed to the State to acquire the lands of village Bela for the public purpose of construction of Ojat-2 Irrigation Scheme. On consideration of the said report, the State Government was satisfied that the lands of village Bela mentioned therein were likely to be needed for the said public purpose. Therefore, a notification under Section 4(1) of the Act was issued which was published in the official gazette on February 1, 1990. The owners, whose lands were proposed to be acquired, were served with notices. They had filed their objections. After considering their objections, a report, as contemplated by Section 5A(2) of the Act was forwarded by the Land Acquisition Officer to the State Government. On consideration of the same, the State Government was satisfied that the lands of village Bela mentioned in the notification published under Section 4(1) of the Act were needed for the public purpose of construction of Ojat-2 Irrigation Scheme. Therefore, a declaration under Section 6 of the Act was made which was published in the official gazette on January 7, 1993. The interested persons were thereafter served with notices for determination of compensation payable to them. The interested persons appeared before the Land Acquisition Officer and were heard by him. After considering the materials placed before him, the Land Acquisition Officer made award under Section 11 of the Act on February 10, 1995. A copy of the award made under Section 11 of the Act is produced by the petitioners at running page 31 of the petition. A perusal of the award makes it very clear that petitioner No. 1, i.e. Shivlalbhai Vaikunth Sankaliya remained present before the Land Acquisition Officer on April 24, 1994, and made a statement before the Land Acquisition Officer that he was not in possession of 1 Hectare - 13 Acres - 66 sq.mts. of land out of Revenue Survey No. 11/1 of village Bela. However, schedule to the award indicated that compensation was awarded to the petitioners. Therefore, the respondent No. 4, i.e. Mr.Chhaganbhai Vithalbhai filed an application dated March 21, 1996, stating that his Survey No. 11/1 was acquired for the public purpose and as the said survey number had totally submerged, he should be granted compensation by correcting the errors in award dated February 10, 1995, made under Section 11 of the Act. A copy of the said application is produced by the petitioners at Annexure-B to the petition. On receipt of the said application, the Land Acquisition Officer issued notice dated May 30, 1996, to the persons who were interested and likely to be affected if application was allowed. By the said notice, the interested persons, including the petitioners, were called upon to remain present for hearing before him on June 10, 1996. However, in the notice produced by the petitioners, the date mentioned for hearing the interested persons is June 20, 1996. The case of the petitioners is that before June 20, 1996, the award dated February 10, 1995, came to be corrected on June 12, 1996, without hearing the petitioners. The effect of correction made in the award is that now the respondent No. 4 is entitled to compensation in respect of the land bearing Survey No. 11/1 of village Bela. The case of the petitioners is that the petitioners demanded copy of the award from the Land Acquisition Officer and the same was supplied to them on December 20, 2004. According to the petitioners, they were also informed that other interested persons were paid compensation and the petitioners were advised to approach the Court for redressal of their grievances, if any, by communication dated January 28, 2005, a copy of which is produced at Annexure-G to the petition. The case of the petitioners is that the application for correction of errors in the original award was made by the respondent No. 4 beyond period of six months contemplated by Section 13A of the Act and therefore, the Land Acquisition Officer had no jurisdiction to correct the errors. What is maintained by the petitioners is that before correcting the errors, no opportunity of being heard was given to the petitioners and therefore, the correction is bad in law. The petitioners have stated that the errors in the original award dated February 10, 1995, were corrected by an order dated June 12, 1996, i.e. after a period of fifteen months, which is contrary to the scheme envisaged by the Act and therefore, the corrected award deserves to to be set aside. The grievance made by the petitioners in the petition is that without verifying or checking the record which indicated that one Mr.Vitthal Raja, who was the original owner of Survey No. 11/1, had sold the said land to one Mr.Vitthaldas Chagandas Thakara by a registered deed dated September 11, 1974, the correction is ordered which is bad in law. The petitioners have maintained that there was neither clerical error nor arithmetical error which had crept in the award and therefore, exercise of power of correction of the errors is bad in law. It is also the case of the petitioners that in the notice issued by the Land Acquisition Officer, incorrect names of the petitioners were mentioned and therefore, the correction made in the award should be treated as illegal. According to the petitioners, in Hissa Form No. 4, the names of the petitioners are mentioned as the owners of Survey No. 11/1 and therefore, correction, which is contrary to the same, should be set aside. Under the circumstances, the petitioners have filed the instant petition and claimed reliefs to which reference is made earlier.

(3.) The petition was placed for preliminary hearing before the Court on June 29, 2006, and after hearing the learned Counsel for the petitioners, notice was ordered to be issued to the respondents.