Per incuriam; Kashibhai Ishwarbhai Patel Vs. Special Land Acquisition Officer [Gujarat High Court, 12-08-2016]

Per incuriam – Rule of – A decision is per incuriam when a Court has acted in ignorance of its own previous decision or of a decision of a Court of coordinate jurisdiction or of a superior Court on the same issue or, further, has omitted to consider any statute while deciding the issue.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI and HONOURABLE MS JUSTICE SONIA GOKANI

Date : 12/08/2016

MISC. CIVIL APPLICATION NO. 959 of 2015 in FIRST APPEAL NO. 631 of 2005

KASHIBHAI ISHWARBHAI PATEL & 2 …. Applicants Versus SPECIAL LAND ACQUISITION OFFICER & 2

Appearance: MR MAYUR R. SHAH, ADVOCATE, FOR MR PM LAKHANI, ADVOCATE WITH MRS R P LAKHANI, MR JAIVIK UDAY BHATT, ADVOCATES for the Applicant(s) No. 1 – 2.6 , 3 – 3.3 MR NIRAJ ASHAR, ASSISTANT GOVERNMENT PLEADER for the Respondents MS MEGHA JANI, AMICUS CURIAE

JUDGMENT

(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)

1. This application has been preferred by the applicants with a prayer to declare that the judgment dated 03.10.2006 passed in First Appeals Nos.629 to 631 of 2005 is per incuriam and, further, to recall and correct the said judgment.

2. The brief factual background in which the application has been made, would be necessary. The State Government issued a Notification under

Section 4 of the Land Acquisition Act, 1894

(“the Act”) for the acquisition of certain lands mentioned therein, situated at village Valad, Taluka and District: Gandhinagar, for the public purpose of the Dhanap Muthiya Kans Project. The said Notification was published in the Official Gazette on 18.12.1992. A Declaration under Section 6 of the Act was published on 16.03.1993. In the proceedings before the Special Land Acquisition Officer, the claimants appeared and claimed compensation at the rate of Rs.500/­ per square meter. The Special Land Acquisition Officer, by his award dated 18.03.1994, offered compensation to the claimants at the rate of Rs.31/­ per square meter. The claimants, therefore, filed applications under Section 18 of the Act, requiring the Special Land Acquisition Officer to refer the matter to the Court for the determination of the just amount of compensation payable to them. Accordingly, references were made to the District Court, Gandhinagar, which were numbered as L.A.Q. Case No.677/1998 to 679/1998. After appreciation of the oral and documentary evidence, the Reference Court awarded additional compensation to the claimants at the rate of Rs.160/­ per square meter, over and above Rs.31/­ per square meter awarded by the Special Land Acquisition Officer, making it Rs.191/­ per square meter in all, by a judgment and award dated 19.02.2006. Against the above judgment, the State Government preferred appeals before this Court which were numbered as First Appeals No.629/2005 to 631/2005. This Court (Coram: J.M.Panchal [as His Lordship then was] and Smt.Abhilasha Kumari, JJ), by a judgment dated 03.10.2006, allowed the appeals preferred by the State Government and modified the judgment and award passed by the Reference Court by holding that the claimants would be entitled to a total amount of compensation at the rate of Rs.80/­ per square meter, for their acquired lands.

3. Applicant No.1 (Kashibhai Ishwarbhai Patel) filed a Special Leave Petition before the Supreme Court against the judgment and order of this Court, which came to be dismissed, by an order dated 30.03.2007.

4. Applicant No.1, thereafter, filed a Review Petition, being Review Petition (C) No.29033/2010 in SLP (C) No.6735/2007. The Review Petition was dismissed by the Supreme Court both on the ground of delay and also on merits, by an order dated 25.08.2011.

5. It appears that some of the other applicants also preferred a petition for Leave to Appeal in the Apex Court against the judgment of this Court, which was dismissed on the ground of unexplained delay. On merits, as well, the Supreme Court was satisfied that this Court has rightly reduced the compensation payable to the petitioners by relying upon an earlier judgment of a co­ordinate Bench passed in First Appeal Nos.2481 to 2507 of 1997 which, in turn, was based on a judgment of the Supreme Court in Civil Appeal Nos.923­967 of 1998. This order was passed by the Supreme Court on 14.12.2012. The Review Petition preferred by these applicants also came to be rejected by an order dated 10.07.2013.

6. Applicant No.1 thereafter, preferred a Curative Petition before the Supreme Court. By an order dated 21.01.2014, the Supreme Court rejected the said petition on the ground that no case is made out within the parameters indicated in the decision in the case of

Rupa Ashok Hurra v. Ashok Hurra & Anr. reported in (2002) 4 SCC 388

7. In the above background, Mr.Mayur R. Shah, learned advocate for Mr.P.M.Lakhani, learned advocate for the applicants has advanced elaborate and lengthy submissions, the gist of which is as follows:

8. That the judgment of this Court dated 03.10.2006, ought to be recalled as it has been obtained by the State Government by suppressing an important document in the shape of the Notification regarding Circle Rates issued in the year 1999, fixing the Circle Rates of the area in question at Rs.500/­ per square meter. It is submitted that when the Circle Rate was declared on 01.09.1999, it reflected the average price of the lands during 1992­93 to 1997­98. The applicants, being agriculturists, were unaware of the same and the respondent Government authorities deliberately withheld this information at the time of hearing before the Reference Court. The Government authorities, being the guardians of the rights of citizens, ought to have disclosed the complete material before the Reference Court in order to enable it to arrive at a just conclusion. Had the Government authorities disclosed this vital information, the Reference Court would have assessed the market price of the lands in question at a much higher price and awarded at least Rs.500/­ per square meter as compensation. Moreover, had the Circle Rates been disclosed, this Court would not have reduced the compensation from Rs.191/­ per square meter to Rs.80/­ per square meter. Rather, it would have increased it to at least Rs.500/­ per square meter. The acquiring body cannot act like a private litigant. It has an inherent obligation to act fairly and reasonably, for the best interest of the citizens and in furtherance of the principles of social welfare and equal justice as enshrined in the Preamble to the Constitution of India. It is contended that the suppression of the vital document regarding Circle Rates vitiates not only the judgment dated 19.02.2006 passed by the Reference Court, but also the judgment of this Court that is sought to be recalled.

9. In support of the above submissions, reliance is placed upon the judgment of the Supreme Court in