RA_-_Baloch_Sobdarkhan_Hamirkhan_Vs_State_of_Gujarat

8/3/2019 RA_-_Baloch_Sobdarkhan_Hamirkhan_Vs_State_of_Gujarat

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. OF 2008

IN THE MATTER OF:

Baloch Sobdarkhan Hamirkhan.Petitioner

Versus

State of Gujarat & Ors.

Respondents

REJOINDER

I Shailash Kumar Pansuriya, son of Nagjibhai Resident of

Rajkot do hereby make oath and state as under:-

1. That I am the power of attorney holder of the Petitioner

in the present matter and being fully conversant with the

facts and circumstances of the present case, I am

competent to swear the present affidavit.

2. That I have read the Counter Affidavit filed by the

Respondents and understood the contents of the same. I

deny each and every allegation in the said Counter Affidavit

and reiterate the facts and Questions of Law stated in the

Special Leave Petition.

3. That the present case pertains to agricultural land

wherein Survey No.964/2-Z measuring 2 hectares 27 ares

and 51 sq. Meters as also land bearing Survey No.964/2-T

measuring 1 hectare, 6 ares and 81 sq. Meters. The

Petitioner herein is the owner of the said land by virtue of a

Will and Gift executed by one Shri Ranbai Vela. It issubmitted that the present proceedings arise out of a

proceeding for acquisition of land initiated by Notification

under Section 4 of the Land Acquisition Act dated

12.9.1970. By virtue of the said notification, the lands of

the petitioners along with other lands were proposed to be

acquired for the alleged benefit of the Respondent No.3

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herein i.e. the Gujarat Housing Board. The said Notification

was followed by another Notification issued under Section 6

of the Land Acquisition Act dated 25.6.1973 by which the

State government declared its intention to acquire the

lands mentioned therein for the Housing Board to develop a

housing colony. From the Counter Affidavit filed by the

Respondent No.3, it is evident that the Gujarat Housing

Board felt that the lands sought to be acquired was not

necessary and as such a proposal was sent to release the

lands in question. It is, however, stated in the CounterAffidavit that the land belonging to the Petitioner herein

was still required by the Respondent and as such no

proposal was sent for the de-acquisition of the lands

belonging to the petitioner herein. It is submitted that the

Respondent has not placed on record a copy of the

Resolution No.408/76 which was adopted in February 1976

but a mere bald statement has been made as if the lands of

the petitioner was required for public purpose and therefore

the same was not proposed to be de-acquired. It is

submitted that the Petitioner has placed on record the

following documents

(a) A copy of the letter dated 24.5.1976 (Annexure P-3,

page 28 of the SLP Paper Book),

(b) A copy of the letter dated 29.6.1976 (Annexure P-4)

addressed by the Respondent no.3 to the

predecessor-in-title Ranbai Vela pointing out the

computation of a sum of Rs.6161/- being the share of

administrative expenses to be borne by Ranbai Vela

for the de-acquisition of the lands,

(c) A copy of the letter dated 1.6.1976 (Annexure P-5,

page 32) and

(d) A copy of the letter dated 7.6.1976 (Annexure P-6,

page 33).

All the above documents clearly indicate that the proposal

for de-acquisition of the land included the lands of the

Petitioner herein and a false averment has been made by

the Respondent No.3 before this Honble Court that there

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was no proposal for de-acquiring the land of the petitioner

since land was still required by the Housing board for public

purposes.

4. It is submitted that the land of the Petitioner was also

proposed to be de-acquired, however, since the petitioner

could not arrange for the administrative expenses

amounting to Rs.6161/- which the Respondents were

claiming for the de-acquisition of the land of the Petitioner,

the notification dated 15.6.1977 was issued by which all theother lands except the land of the petitioner were released

from acquisition and thereafter an award was made only in

respect of the lands which was owned by the petitioner

herein.

5. It is submitted that from the material produced by the

petitioner it is clearly evident that even though the land of

the petitioner was not required for any public purpose and

in fact the lands of other land owners which had been

proposed to be acquired by the same notification had been

released by exercising powers under section 48 since the

land was not so required, the lands of the petitioner herein

was not released from acquisition in complete disregard to

the provisions of Article 14 of the Constitution of India.

6. It is also submitted that the demand made by the

respondent for a sum of Rs.6161/- was clearly illegal and

arbitrary and there is no justification for claiming the said

amount from the land owners. It is submitted that the said

amounts were incurred by the respondent No.1 State at the

behest of the Respondent No.3 and there is no justification

for claiming the said amounts pro rata from the land

owners.

7. In view of the above illegal and arbitrary action by the

Respondent the petitioner herein preferred a Civil Suit

being Special Leave Suit No.85/78 before the Civil judge at

Gondal. The said civil suit was decreed in favour of the

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petitioner herein by a final judgment and decree dated

28.4.1995. The Ld. Trial court was pleased to direct as

under:

It is hereby declared that notification u/s 4 and 6 ofthe L.A.Q. Act and the award based on the saidnotification are illegal, void and inoperative. It ishereby further declared that land of plaintiffs viz. partZ & T of S.No.964/2 does not remain worth acquiringunder the Land Acquisition Act in view of thefrustration of the purpose mentioned in thenotification, and it is hereby further declared that theacquisition and award are mala fide, illegal anddiscriminatory. It is hereby further declared thatrojkam dated 16.05.94 pertaining to A.5-25GS.No.964/2 is illegal, null and void as the possessionof the said land remains with the plaintiffs and thereshall be no effect of the said rojkam against plaintiffs.

Mandatory permanent injunction is hereby grantedagainst defendants directing them to acceptRs.6161/- (rupees six thousand one hundred sixtyone) towards the share of costs and Mehkam from theplaintiffs (as per letter Ex.131 to 134) and by thismandatory injunction defendants more particularlydefendant no.4 are directed to issue the notificationor appropriate order releasing the suit land fromacquisition and by this mandatory injunctiondefendants are ordered to withdraw the notificationpertaining to the acquisition of suit land part Z & T ofS.No.964/2 and it is hereby further ordered thataward Ex.135 is ab initio null and void anddiscriminatory so far as it relates to part Z & T of

S.No.964/2.

It is hereby further declared that the will Ex.85 andthe Hiba i.e. gift deed Ex.156 are lawfully executedunder Mohammedan law by deceased Ranbai Vela.

Permanent injunction is hereby granted against thedefendants restraining them from proceeding furtherin the matter of acquisition of land A.5-25GS.No.964/2 and they are permanently restrained fromdisturbing the possession of plaintiffs over S.No.964/2

admeasuring A.5-25G part Z & T and that defendantsare permanently restrained from making any on thesaid land.

Plaintiffs are hereby ordered to pay Rs.6161/- todefendants no.3 & 4 before 31st May 1995.

Defendants do pay cost of plaintiffs and bear of theirown. Decree be drawn accordingly.

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8. In view of the said judgment and directions, the

petitioner deposited the amount of Rs.6161/- with the

respondent No.3 i.e. the Gujarat Housing Board. A copy of

the covering letter along with the remittance of the amount

is annexed as Annexure P-11 (page 112) and a copy of the

receipt evidencing the deposit of amount of Rs.6161/- on

30.5.95 is annexed as Annexure P-13 (page 116).

9. That despite receipt of the said amount by the

respondent the Gujarat Housing Board, had preferred anappeal against the judgment dated 28.4.95 in regular Civil

Appeal No.70/1995. It is submitted at the outset that the

appeal filed at the instance of the Gujarat housing Board

challenging the acquisition and the arbitrary action by the

state agencies not to release the lands belonging to the

Petitioner herein while extending the said benefit to other

similarly placed land owners was not maintainable at the

instance of the appellant therein i.e. the Gujarat Housing

Board. It is submitted that the Housing Board has no

concern with the acquisition of the land which lis was

specific between the land owners and the State. The

Housing Board was a mere beneficiary and therefore it has

no locus to prefer an appeal against order of the Ld. Trial

court. It is also submitted that the right of the Housing

Board is in the award proceedings in the determination of

the quantum of award to be paid to the land owners but it

cannot proceed and challenge the order by which the

acquisition itself had been declared to be void by the Ld.

Trial court. (refer Municipal Corporation of City of

Ahmedabad vs. Chanduilal Shyamaldas Patel

reported in 1971(1) SCC 21)

10. Despite the above the Ld. First appellate court

allowed the appeal filed by the respondent and held that

the civil suit filed by the petitioner before the Ld. Trial court

challenging the acquisition proceedings was not

maintainable and therefore the judgment and order dated

28.4.95 was set aside.

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11. It is submitted that the petitioner thereafter preferred

the present Writ Petition before the Honble High Court

seeking the following reliefs:

(A) Your Lordships may be pleased to hold anddeclare that the notification u/s 4 and 6 dated29.12.1970 and 12.7.1973 are illegal and void abinitio and be further pleased to issue a writ ofmandamus or a writ in the nature of mandamus andthereby quash and set aside the said notification atAnnexure A and Annexure B hereto

(B) Your Lordships may be pleased to hold anddeclare that the award under Section 11 dated30.3.1978 is illegal, void ab initio, mala fide, colorableand in violation of the provisions of Land AcquisitionAct and be further pleased to issue a writ ofmandamus or a writ in the nature of mandamusquashing and setting aside the said award atAnnexure-H

(B 1). The respondent no.1 and 2 may be directed bya writ of mandamus and or any other writ, order ordirection to exercise power u/s 48 and withdraw theland of the petitioner from acquisition and all actionssubsequent to the section 6 notification be quashedand set aside.

(C) Your Lordships may be pleased to quash and setaside the impugned order dated 7.5.2005 passed bythe Assistant District Judge, Gondal in Regular CivilAppeal No.70 of 1995 (Annexure-T)

(D) Your Lordships may be pleased to hold anddeclare that the action of respondent no.3 and 4 intaking forceful possession of the land in question on12.6.1995 is illegal and void.

(D 1). The respondent no.3 and 4 be directed toreturn the vacant and peaceful possession of land tothe petitioner.

(E) Pending admission and final hearing of thispetition, Your Lordships may be pleased to stay the

implementation and operation of the order dated7.5.2005 passed by the Assistant District Judge,Gondal in Regular Civil Appeal No.70 of 1995; and befurther pleased to restrain the Gujarat Housing Boardfrom selling, transferring or in any manner disposingof the suit land and/or making anyalterations/construction of any nature on the land inquestion being S.No.964/2-Z and S.No.964/2-T ofJetpur, Rajkot;

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(F) Pending admission and final hearing of thispetition, Your Lordships may be pleased to grantmandatory injunction and direct the Gujarat Housing

Board to return the possession of the land in questionbeing Survey No. 964/2-Z and S.No.964/2-T of thepetitioner;

(G) Pass any other and further orders as may bedeemed fit and proper in the facts and circumstancesof the present case in the interest of justice.

A copy of the Writ Petition is annexed herewith and marked

as Annexure P-1.

12. It is submitted that from the above Prayers made by the

petitioner it is clearly evident that the petitioner had not

only challenged the notifications issued under Section 4

dated 29.12.1970 and the declaration under Section 6

dated 25.6.1973 but had also challenged the order of the

Ld. 1st Appellate court dated 7.5.2005. It is submitted that

in the present case the Honble High Court has not

entertained the Writ Petition filed by the petitioner primarily

for the reason that the Writ Petition filed by the Petitioner

challenging the acquisition was, according to the Honble

High Court, grossly belated. It is submitted that the Honble

High Court in the present caser has not properly

appreciated the fact that the petitioner had filed a civil suit

way back in 1978 which had been decreed by the Ld. Trial

court by an order dated 28.4.1995. The appeal filed by the

Housing Board thereafter was allowed on 7.5.2005 after

which the petitioner preferred the present Writ Petition

before the Honble High Court. It is submitted that in the

relief sought, the petitioner had specifically prayed for

quashing of the judgment dated 7.5.2005 wherein it had

been held that the proceedings initiated by the petitionerbefore the Ld. Trial court as not maintainable could not be

sustained and as such it is submitted that the said relief

claimed by the petitioner was in any case not belated. So

far as the challenge to the notification dated 29.12.1970

and 25.6.1973 are concerned, the petitioner herein had

been pursuing the remedies available to him and since the

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first appellate court came to a conclusion that the civil

court had no jurisdiction to consider the validity of the

notifications issued under the Land Acquisition Act, the

petitioner had challenged the said notifications afresh

before the Honble High Court. It is therefore, submitted

that the petitioner cannot be accused of being negligent

and as such, the Writ Petition filed by the petitioner ought

not to have been dismissed on the ground of laches.

13.That apart from the submissions made above it is furthersubmitted that the submissions made by the respondent

that the possession of the land had been taken and

therefore no relief could be granted to the petitioner is

clearly not sustainable. It is submitted that the respondent

had taken possession in view of judgment dated 7.5.2005

whereby the injunction granted by the Ld. Trial court had

been vacated and as such possession had been taken. It is

submitted that since the order dated 7.5.2005 had been

challenged by the petitioner in the Writ Petition, before the

Honble High Court, the mere taking of possession by the

respondent would not be an impediment to a grant of relief

to the Petitioner herein. It is submitted that since the

possession has been taken pursuant to direction by the first

appellate court which order is under challenge before the

Honble High Court if the order is set aside then the

respondent is bound to restore possession to the petitioner

herein.

14. It is submitted that possession of the land of the

petitioner was taken after the decision of the learned First

Appellate Court and while the petitioner was preparing to

file a writ petition before the Hon'ble High Court. A specific

prayer had therefore been made by the petitioner before

the Honble High Court seeking direction to the respondent

to hand back possession and as such it is submitted that

the mere fact that possession had been taken would not be

any valid basis to deny relief to the petitioner herein.

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15. Non-exercise of powers under section 48 so far as the

petitioner is concerned was a subject matter of the present

case and therefore injunction was sought from the court

restraining the respondent from disturbing the possession

of the petitioner. It is submitted that when the petitioner

had already initiated proceedings before the court,

possession taken in the interregnum would not affect the

rights of the petitioner herein, if the petitioner is otherwise

entitled to relief prayed for the in the Civil Suit or the writ

petition.

16. The petitioner reiterates the grounds and the

questions of law raised and submits that the contentions

made by the respondent disputing and denying the same

ought to be rejected. The present appeal filed by the

appellants deserve to be allowed with costs.

17. That the facts which have not been pleaded before

the Courts below have not been pleaded in the present

Rejoinder Affidavit.

I, the above-named Deponent do hereby declare and verify

on oath that the contents of the above affidavit are true to my

knowledge. Nothing material has been concealed therefrom and

no part of it is false.

Verified at on this the day of ,

2010.

DEPONENT

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IN THE MATTER OF:


Versus


Respondents

APPLICATION FOR PERMISSION TO

FILE REJOINDER AFFIDAVIT

To

Honble the Chief Justice of India and His Companion Judges of

the Supreme Court of India at New Delhi

The humble petition of the

Petitioner above named-

MOST RESPECTFULLY SHEWETH:

1. That the Petitioner herein filed the present petition for

special leave to appeal against the final judgment and order

dated 22.7.2008 made by the Hon'ble High Court of Gujarat at

Ahmedabad in Special Civil Application No. 24654 of 2005. All the

facts and circumstances of the case have been fully set out in the

Petition for Special Leave to Appeal and the rejoinder affidavit

being filed and the Petitioner craves leave of this Honble Court to

refer to and rely upon the same in support of the present

Application.

2. That there petitioner was granted four weeks time to filerejoinder affidavit however the same could not be filed within the

said time and as such the petitioner is seeking permission to file

rejoinder affidavit.

3. The petitioner most respectfully submits that the delay in

filing the rejoinder may be condoned and the petitioner may be

permitted to file rejoinder affidavit in the interest of justice.

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4. That this application is being made bona fide and in the

interest of justice.

PRAYER

It is, therefore, respectfully prayed that Your Lordships may

be pleased to:

(a) Permit the petitioner to file rejoinder affidavit to the

counter affidavit filed by the respondents.; and

(b) pass such other and further orders as may be

deemed fit and proper in the facts and circumstances

of the present case.

DRAWN AND FILED BY

(Mrs. Pratibha Jain)Advocate for the petitioner

NEW DELHI

DATED

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IN THE MATTER OF:


Versus


Respondents

AFFIDAVIT

I Shailash Kumar Pansuriya, son of Nagjibhai Resident of

Rajkot do hereby make oath and state as under:-

1. That I am the power of attorney holder of the Petitioner

in the present matter and being fully conversant with the

facts and circumstances of the present case, I am

competent to swear the present affidavit.

2. That I have read the application for permission to file

rejoinder affidavit and have understood the contents of

the same. I state that the facts mentioned in the said

application are true to my knowledge and nothing

material has been concealed therefrom.

I, the above-named Deponent do hereby declare and verify

on oath that the contents of the above affidavit are true to my

knowledge. Nothing material has been concealed therefrom and

no part of it is false.

Verified at on this the day of ,2010.

DEPONENT

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Documents

RA_-_Baloch_Sobdarkhan_Hamirkhan_Vs_State_of_Gujarat