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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 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 is submitted 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 OF 2008

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 Counter Affidavit 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) (b) A copy of the letter dated 24.5.1976 (Annexure P-3, page 28 of the SLP Paper Book), 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) (d) A copy of the letter dated 1.6.1976 (Annexure P-5, page 32) and 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

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 the other 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

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 of the L.A.Q. Act and the award based on the said notification are illegal, void and inoperative. It is hereby further declared that land of plaintiffs viz. part Z & T of S.No.964/2 does not remain worth acquiring under the Land Acquisition Act in view of the frustration of the purpose mentioned in the notification, and it is hereby further declared that the acquisition and award are mala fide, illegal and discriminatory. It is hereby further declared that rojkam dated 16.05.94 pertaining to A.5-25G S.No.964/2 is illegal, null and void as the possession of the said land remains with the plaintiffs and there shall be no effect of the said rojkam against plaintiffs. Mandatory permanent injunction is hereby granted against defendants directing them to accept Rs.6161/- (rupees six thousand one hundred sixty one) towards the share of costs and Mehkam from the plaintiffs (as per letter Ex.131 to 134) and by this mandatory injunction defendants more particularly defendant no.4 are directed to issue the notification or appropriate order releasing the suit land from acquisition and by this mandatory injunction defendants are ordered to withdraw the notification pertaining to the acquisition of suit land part Z & T of S.No.964/2 and it is hereby further ordered that award Ex.135 is ab initio null and void and discriminatory so far as it relates to part Z & T of S.No.964/2. It is hereby further declared that the will Ex.85 and the Hiba i.e. gift deed Ex.156 are lawfully executed under Mohammedan law by deceased Ranbai Vela. Permanent injunction is hereby granted against the defendants restraining them from proceeding further in the matter of acquisition of land A.5-25G S.No.964/2 and they are permanently restrained from disturbing the possession of plaintiffs over S.No.964/2 admeasuring A.5-25G part Z & T and that defendants are permanently restrained from making any on the said land. Plaintiffs are hereby ordered to pay Rs.6161/- to defendants no.3 & 4 before 31st May 1995. Defendants do pay cost of plaintiffs and bear of their own. Decree be drawn accordingly.

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 an appeal 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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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 and declare that the notification u/s 4 and 6 dated 29.12.1970 and 12.7.1973 are illegal and void ab initio and be further pleased to issue a writ of mandamus or a writ in the nature of mandamus and thereby quash and set aside the said notification at Annexure A and Annexure B hereto (B) Your Lordships may be pleased to hold and declare that the award under Section 11 dated 30.3.1978 is illegal, void ab initio, mala fide, colorable and in violation of the provisions of Land Acquisition Act and be further pleased to issue a writ of mandamus or a writ in the nature of mandamus quashing and setting aside the said award at Annexure-H (B 1). The respondent no.1 and 2 may be directed by a writ of mandamus and or any other writ, order or direction to exercise power u/s 48 and withdraw the land of the petitioner from acquisition and all actions subsequent to the section 6 notification be quashed and set aside. (C) Your Lordships may be pleased to quash and set aside the impugned order dated 7.5.2005 passed by the Assistant District Judge, Gondal in Regular Civil Appeal No.70 of 1995 (Annexure-T) (D) Your Lordships may be pleased to hold and declare that the action of respondent no.3 and 4 in taking forceful possession of the land in question on 12.6.1995 is illegal and void. (D 1). The respondent no.3 and 4 be directed to return the vacant and peaceful possession of land to the petitioner. (E) Pending admission and final hearing of this petition, Your Lordships may be pleased to stay the implementation and operation of the order dated 7.5.2005 passed by the Assistant District Judge, Gondal in Regular Civil Appeal No.70 of 1995; and be further pleased to restrain the Gujarat Housing Board from selling, transferring or in any manner disposing of the suit land and/or making any alterations/construction of any nature on the land in question being S.No.964/2-Z and S.No.964/2-T of Jetpur, Rajkot;

(F) Pending admission and final hearing of this petition, Your Lordships may be pleased to grant mandatory injunction and direct the Gujarat Housing Board to return the possession of the land in question being Survey No. 964/2-Z and S.No.964/2-T of the petitioner; (G) Pass any other and further orders as may be deemed fit and proper in the facts and circumstances of 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 petitioner before 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

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 further submitted 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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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 2010. DEPONENT on this the day of ,

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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. IN THE MATTER OF: Baloch Sobdarkhan Hamirkhan .Petitioner Versus State of Gujarat & Ors. 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 OF 2008

The humble petition of the Petitioner above namedMOST 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 file

rejoinder 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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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 SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. IN THE MATTER OF: Baloch Sobdarkhan Hamirkhan .Petitioner Versus State of Gujarat & Ors. 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 2010. DEPONENT on this the day of , OF 2008