Rambhai Matambhai Bharwad vs State of Gujarat

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Guj) 184

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ARAVIND KUMAR, ASHUTOSH J. SHASTRI, JJ.
Rambhai Matambhai Bharwad - Petitioner
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 9777 of 2022
Decided On : 13-01-2023

Advocates Appeared:
For the Petitioner: Ms. Niyati K. Shah.
For the Respondent: Mr. K.M. Antani Assistant Government Pleader, Mr. Anuj K. Trivedi.

Headnote:
Constitution of India, 1950 - Article 226 - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Section 23A, 10A, 19(1) - Land - Payment of agreed rent - Retention of temporary possession - Declare that retention of temporary possession and occupation of Petitioner’s land in question by respondent no. 2 company for construction of metro pillars, beyond period without payment of agreed rent is absolutely illegal, unlawful and without any justification – Held, An attempt is made by petitioners in rejoinder affidavit to counter stand of respondent but when facts are seen from such, it is evident that facts are seriously in dispute and in controversy hence Court deem it proper not to adjudicate such disputed questions of fact in exercise of extraordinary equitable jurisdiction - Whether rent was agreed upon or not ? Whether rent was payable for a particular period or not ? and whether claim for recovery of compensation is justified or not? are questions since seriously in dispute require detail adjudication and as such, Court is of clear opinion that such controversial facts may not be subject matter of exercise of extraordinary jurisdiction in view of settled position of law – Court is also of opinion that writ jurisdiction cannot be exercised for recovery of money especially entitlement of it is seriously in dispute - Since petition contains seriously disputed questions of fact and as such on this ground alone, Court is not inclined to entertain petition - Petition dismissed.

JUDGMENT :

Ashutosh J. Shastri, J.

1. By way of this petition, under Article 226 of the Constitution of India, petitioners have prayed for the following reliefs :-

“12(A) This Hon’ble Court may kindly be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions in the nature of mandamus declaring that the retention of temporary possession and occupation of the Petitioner’s land in question by the respondent no. 2 company for the construction of metro pillars, beyond the period of 28.02.2019 without payment of agreed rent is absolutely illegal, unlawful and without any justification and in any case, this Hon’ble Court be further pleased to declare that despite the fact that possession and occupation of Petitioner’s land was retained by the respondent no. 2 company upto 31.12.2019, the further payment made only upto 31.05.2019 is without any authority of law and hence the petitioner’s are entitled to agreed rent upto 31.12.2019;

This Hon’ble Court may kindly be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions in the nature of mandamus directing the respondent no. 2 company to make the payment at the rate of Rs.1000/- per sq.mtr., per month to the petitioners being unpaid rent for the period from 01.06.2019 to 31.12.2019 for retaining the possession of their land which was temporarily acquired for construction of metro-link pillars;

(B) During the admission, hearing and final disposal of present petition, this Hon’ble Court may be pleased to direct the respondent no. 2 company to deposit with this Hon’ble Court the amount of unpaid rent at the rate of Rs.1000/- per sq.mtrs., per month for the period from 01.06.2019 to 31.12.2019 for retaining the possession of their land which was temporarily acquired for construction of metro-link pillars;

(C) Hon’ble Court may be pleased to pass any other and further orders of grant of relief as may be deemed fit in the interest of justice.”

2. The brief background of the facts is that property bearing Survey No. 534 of Vadaj Sim, Ahmedabad, admeasuring about 9 Acre 13 Gunthas along with Kharaba land of 2 Acres 36 Gunthas was originally an agricultural land, totaling around 59,169 Sq. Yrds. The said land is said to have been purchased by five owners each one having 1/5th undivided share and the name of those five sharers are Shri Poonabhai Desabhai, Shri Merabhai Hathibhai, Shri Dulabhai Hansrajbhai, Shri Raijeebhai Harjeebhai and Shri Chhaganbhai Nathabhai. It is the case of the petitioners that Shri Raijeebhai Harjeebhai sold away his 1/10th share of the said land to one Shri Surabhai Poonabhai and Shri Matambhai Poonabhai and another 1/10th share to Shri Merabhai Hathibhai somewhere in the year 1942. According to petitioners Shri Poonabhai Desabhai gifted away his 1/5th share to his sons Surabhai and Matambhai. Shri Matambhai had four sons, who are present petitioners 1 to 4 and in the same way Shri Surabhai has two sons namely, Shri Nutanbhai and Shri Ghanshyambhai, whereas Shri Ghanshyambhai has two sons namely, Shri Rajulbhai and Shri Chiragbhai who are present petitioners nos. 5 to 7.

2.1. It is the case of the petitioners that partial partition of the property had taken place vide three different documents of partition deed i.e. (1) Partition deed dated 01.10.1975 with respect to proposed Final Plot No. 287 as per sanctioned draft town planning scheme no. 28 admeasuring about 6960 Sq. Mtrs., and upon finalization of town planning scheme, Final Plot No. 685 was assigned admeasuring around 7433 Sq. Mtrs., and (2) registered partnership deed dated 06.10.1975 with respect to Survey No. 534/p and O.P. No. 187/1 admeasuring around 7495 Sq. Mtrs., representing road area whereas the third document was with respect to land bearing O.P. No. 187/2, Final Plot No. 822 (Green Belt Area Land) admeasuring 33,578 Sq. Mtrs., including internal road 6211.59 Sq. Mtrs.. The petitioners have further asserted that respondent no. 2 Company w