1. Heard Mr. Kharadi, learned advocate for the petitioners and Mr. Rohan Yagnik, learned AGP for the State.
2. At the request of learned advocate for the petitioners and having regard to the fact that the petition has been filed by victim of riots of 2002, the petition is taken up for final decision today. Mr. Rohan Yagnik, learned AGP has no objection.
3. In present petition the petitioners have prayed that:-
9(A)...........
(B) This Hon'ble Court may be pleased to allow this Special Civil application by issuing a writ of mandamus, or any other appropriate writ in the nature of mandamus direction or order directing the respondent authorities to make payment of compensation amount as per the statement of resurvey immediately. (C)..........
(D).........
(E) ”
4. Under order dated 22.7.2008 Notice to the respondents was issued. The Court (Coram:- Hon'ble Mr. Justice Anant S. Dave) then on 26.9.2008, passed below mentioned order:-
“Taluka Development Officer, Taluka:Jhalod, District: Dahod, is directed to remain present before this Court on 7th October, 2008, with relevant records pertaining to survey and resurvey carried out by Taluka Panchayat, Jhalod for awarding an amount towards damage suffered by the victims of the post Godhra riot.
5. Thereafter the Court (Coram:- Hon'ble Mr. Justice Anant S. Dave) on 7.10.2008, passed below mentioned order:-
“Heard Mr. H.S.Munshaw, learned advocate for respondent No.4, who states that as per order dated 26.9.2008, concerned Taluka Development Officer, Taluka: Jhalod, District: Dahod is present before this Court with relevant record which do not reveal name of the petitioners in the proposal forwarded by the officer for rendering special assistance pursuant to the damage caused to the residential house of the petitioners during communal riots.”
6. Subsequently the Court (Coram: Hon'ble Mr. Justice Anant S. Dave) on 24.12.2008, passed below mentioned order:-
“Rule, returnable on 19th February, 2009.
Learned advocate for the respondent-State waives of rule.”
7. In the interregnum, affidavits, reply affidavits, rejoinder, sir-
rejoinder have been filed by the contesting parties.
8. On 24.9.2012 the Court passed below mentioned order:-
“1.......
2. As a last chance time until 01.10.2012 is granted to respondent Nos. 1, 2, 3 and 5 to file reply affidavit stating correct and complete facts and dealing with the case of the petitioners, particularly the details with regard to resurvey and FIR said to have been filed on behalf of the petitioners.
3. The respondent No.5 himself shall file separate affidavit clarifying the factual position as regards the FIR said to have been filed on behalf of the petitioners. The respondent No.5 shall personally examine the records of the case and will also take into account communication dated 17.11.2009 said to have been forwarded by the Police Inspector, Zalod to the respondent No.4. After examining the said aspect and the record, respondent No.5 shall file affidavit clarifying the factual position about FIR said to have been filed on behalf of the petitioners.
4. The respondent Nos. 1 and 2 shall also file separate affidavit stating details as to why the petitioners' case has not been considered and amounts of compensation in accordance with the resolutions have not been paid to the petitioners. The respondent No.2 shall personally examine the records and the facts situation and ensure that the the reply affidavit stating correct and complete facts is placed on record on or before the next date.
5. If the reply affidavits are not filed, then the Court may be constrained to pass appropriate order including order imposing cost on the responsible officers or order allowing petition and granting relief as prayed for.”
9. Despite the said direction any affidavit explaining the aspects mentioned in the said order has not been filed.
10. So as to support the relief prayed for in the petition, the petitioners have stated that during the riots of 2002, properties of the petitioners sustained damage and petitioners suffered loss.
10.1 It is also claimed that thereafter FIR was filed in pursuance of which Panchnama was also drawn. It is true that the FIR was not filed by the petitioners but it was filed by certain other affected persons.
10.2 However, fact remains that in the panchnama which was drawn pursuant to the FIR, reference of the properties of the petitioners is made. For some reason the petitioners names were not included in the survey report.
10.3 However, subsequently under order passed by the competent authority resurvey of the properties which suffered damage in Dahod District was carried out. In the resurvey report the names of petitioners appear at serial no. 20 and 21.
10.4 The committee which conducted the resurvey, has quantified loss suffered by the petitioner No. 1 and 2 at Rs.20,500/- and Rs. 12,000/- respectively.
10.5 The petitioners have claimed that after the said resurvey report which acknowledges the fact that the petitioners properties suffered damage during riots, any compensation has not been paid to the petitioners though Government declared two relief packages in March 2002 and in May 2002.
10.6 The petitioners have claimed that since any compensation was not paid despite the fact that names of the petitioners are mentioned / included in the resurvey report the petitioners made representations to various authorities. However, request did not yield any result.
10.7 The petitioners have claimed that until now any amount towards compensation has not been paid to the petitioners.
11. The respondent No.4 has filed reply affidavit stating, inter alia, that:-
“1. The respondent No.4 most respectfully craves leave to state that he has taken over the charge of the post of Project Officer-cum-Taluka Development Officer, Jhalod with effect from 03/11/2006 and has perused the record available in the Taluka Panchayat Office. It is submitted that earlier applications were made by the petitioners raising their grievances that they were not paid the compensation though their properties were surveyed and assessed. It is submitted that on perusal of the entire record, it is found that the properties of the present petitioners situated at Vilalge Sanjeli were not damaged during the riots and therefore, they were not paid any compensation. It is humbly submitted that a letter dated 18/01/2007 was addressed by the respondent No.4 to the District Development Officer, Dahod District Panchayat in this regard along with a copy of statement giving full details and a copy thereof is annexed herewith and marked as Annexure-A. It is submitted that the Talati of Sanjeli Group Panchayat has addressed a letter to the effect that the properties of the petitioners were not damaged and therefore, there is no question of payment of any compensation and a copy of the said letter is annexed herewith and marked as Annexure-B. The respondent No.4 most respectfully submits that thereafter the District Development Officer, Dahod District Panchayat has addressed a letter in this regard to the office of the Hon'ble Chief Minister of the State of Gujarat on 22.2.2007 and a copy of the said letter is annexed herewith and marked as Annexure-C.
2. In view of the above factual background it is clear that the properties of the present petitioners were not damaged in the communal riots of the year 2002 and that therefore, the issue of payment of compensation does not survive and hence this Hon'ble Court is humbly prayed to reject the present Special Civil Application in limine with cost in the interest of justice.”
11.1 For the purpose of making the said affidavit the said deponent appears to have relied on a communication purportedly made by Talati of Sanjeli Group Panchayat wherein it is mentioned that the names of the petitioners were not mentioned in the survey report.
11.2 The petitioners have claimed that the said communication by Talati was forwarded to the respondent No. 4 before the second survey report was conducted. It is claimed that the said communication was made on the basis of the first survey report however the said authority did not take into consideration the second survey report and that therefore respondent No.4 is not justified in relying on the said communication by Talati of Sanjeli Group Panchayat.
12. In reply to the said affidavit by respondent No.4 the petitioners have, inter alia, stated that:-
“2. I state and submit that the respondent No.4 has come out with false pleas to deprive him of our legitimate right. It is clear from the fact that you have made representations to the various authorities including the Revenue Department of the State of Gujarat since 2002-2003. Lastly on 4.2.2008 such representation was made. I state and submit that we have received reply on various occasions from different authorities including the respondent No.4. However, at no point of time the respondent authorities, more particularly the respondent No.4 had given a clarificatory reply that the petitioners are not entitled for the help, as they have not sustained any damage to any of their properties. Such a stand is taken for the first time before this Honourable Court. I request the Honourable Court to draw an adverse inference against the respondent No.4.
2.1 I state and submit that the statement of re-survey which is annexed to the petition at Annexure “A”, prepared by the respondent No.4 is not denied in the affidavit in reply.
2.2 I say and submit that on 2.3.2002 the offence punishable under Sections 143, 147, 148, 149, 395, 396, 436, 427 and 188 of the Indian Penal Code was committed in village Sanjeli and various other villages. The FIR was lodged vide Crime Register No. I-34/2002 on 6.3.2002. Pursuant to the said FIR panchnama was prepared of the scene of offence, wherein on page-43 of the panchnama, properties of the petitioners have been mentioned and has been subjected to arson, looting and damage. The copy of the FIR and extract of page-43 of the panchnama pursuant to the Crime Register No. I-34/2002 is annexed as Annexure “E”(Collectively) to the affidavit in rejoinder.”
12.1. The petitioners have placed on record copy of the panchnama drawn in connection with the FIR which appears to have been filed on 6.3.2002. In the said panchnama name of petitioner No.1 is mentioned.
12.2 What is pertinent to note is the fact about said panchnama and also a communication dated 13.8.2002 (which is annexed by the petitioners to their rejoinder affidavit) which is the certificate issued by Sarpanch of the Group Gram Panchayat, Sanjeli. In the said certificate the Sarpanch of the said village has certified that the property of petitioner No.1 had suffered damage during riots. Similar certificate dated 14.11.2008 is also issued in favour of petitioner No.2. The respondent No.4 has filed affidavit disputing the petitioners' claim regarding FIR and it is claimed that according to the information received from Jhalod Police Station any FIR was not filed at the relevant time.
12.3 On one hand a photocopy of FIR is placed on record and on other hand respondent No.4, claims, on the basis of the information received by him from Police Sub Inspector, that any FIR was not filed. Therefore directions to the authority were passed on 24.9.2012 to clarify aforesaid aspect by filing appropriate affidavit. However, as mentioned earlier, any affidavit has not been filed until now. Not only this but since 22.7.2008 and even after order dated 24.12.2008 (i.e. when petition came to be admitted) i.e. since last four years respondent Nos. 1 to 3 have not filed any reply affidavit and the affidavits which have been filed are only by respondent No.4.
12.4 The respondent Nos. 1 to 3 have not even cared to clarify factual aspects and / or to explain as to why the petitioners case for compensation is not considered despite the fact that petitioners names appear in the re-survey report.
12.5 Since repeated opportunities have been granted to respondent Nos. 1 to 3, any explanation has not been placed on record, the Court is constrained to believe the details mentioned by the petitioners and draw adverse inference to respondent Nos.1 and 3 and to conclude that there is no sustainable explanation for denying the claim for compensation by the petitioners.
13. Mr. Kharadi, learned advocate for the petitioners has submitted that there is no dispute or denial as regards the certificate dated 13.8.2002 and 14.11.2008 issued by Sarpanch of the Group Panchayat.
13.1 He also submitted that there is also no denial of the fact so far as the summary of resurvey report (which is placed on record of present petition at annexure-A page-10) are placed on record either by respondent Nos. 1 to 3 or even by respondent No.4.
13.2 He also submitted that in this view of the matter there is no justification for denying the claim for compensation on the basis of resurvey report.
14. Learned advocate appearing on behalf of Mr. Munshaw, learned advocate for the respondent No.4 has submitted that he relies on the reply affidavits which are filed by respondent No.4.
14.1 He could not deny the fact as regards petitioners submission that the communication issued by Talati, of which reference has been made in the reply affidavit of respondent No.4 (i.e. document at annexure-B, page 22) was forwarded by Talati before the first survey report or after the resurvey report. He also could not offer any explanation as regards the details mentioned in the document at anneuxre-A page 10.
14.2 The respondent No.4 also could not offer any explanation with regard to the certificate dated 13.8.2002 and 14.11.2008 issued by Sarpanch of the Group Panchayat. On one hand learned advocate for respondent No.4 could not offer any explanation whereas on other hand in the affidavit said details have not been disputed. So far as the respondent Nos. 1 to 3 are concerned, they have maintained stoic silence and have neither disputed the details mentioned by the petitioners nor they have mentioned any other facts.
14.3 It appears that their silence speaks volumes. It appears that respondent Nos. 1 to 3 do not have any material on hand to dispute the details mentioned by the petitioners, particularly the fact that names of the petitioners Nos. 1 and 2 appear in the resurvey report which reflects loss and damage suffered by the properties of the victims during riots. Said report includes names of the petitioner Nos. 1 and 2.
14.4 Since any affidavit has not filed by respondent Nos. 1 to 3 denying the said details and / or disputing veracity of the said document at annexure-A purporting to be summery of resurvey report, the Court has to believe the documents. Since the respondent Nos. 1 and 2 have not filed any reply affidavit and have not disputed the details mentioned by the petitioners and / or documents relied by the petitioners, it is necessary for the Court to rely on the details mentioned by the petitioners in present petition.
15. Having considered the details emerging from the record and submissions by the learned advocate for the petitioners and the respondent (learned AGP has not been able to make any submission with regard to aforesaid aspect) and having regard to the documents on record it appears that the petitioners' claim for compensation requires proper consideration and appropriate orders. So far as present petition is concerned, it appears that there is no material on record which disputes the detail mentioned by the petitioners.
15.1 The details mentioned by the petitioners are supported by not only the petitioners' affidavit but also by document at annexure-A page-10, photocopy of the FIR, a copy of panchnama said to have been drawn pursuant to the said FIR and particularly the certificates dated 13.8.2002 and 14.11.2008 issued by Sarpanch of the Group Panchayat and the fact that relevant documents vis. Certificate dated 13.8.2002 and the document at annexure-A i.e. summary of resurvey report, the Court is inclined to accept the submission of learned advocate for the petitioners that in the resurvey report the damage suffered by the petitioners property is quantified at Rs.20,500/- and Rs. 12,000/- for petitioner Nos. 1 and 2.
15.2 In this view of the matter subject to other terms and conditions as may be applicable for granting relief package and compensation under the Rule, petitioners claim requires consideration. Therefore below mentioned order is passed:-
(A) The respondent Nos. 2 and 3 shall take up the case of the petitioners for reconsideration.
(B) The case will be examined in light of the observations made in present order.
(C) The said competent authority will take into consideration the details mentioned by the petitioners in their application / representation and will consider the same in light of present order as well as in light of the terms and conditions mentioned in the applicable resolution including the resolution issued in March 2002 and May 2002 and after considering relevant aspects and examining petitioners' case in light of the applicable policy and resolution, pass appropriate order within four weeks from receipt of certified copy of present order.
(D) For the said purpose the petitioners are permitted to serve directly copy of present order to respondent Nos. 2 and 3 who will take necessary decision in aforesaid time limit keeping in focus the observations made in present order, however in accordance with applicable terms and conditions. The decision which may be taken after due consideration of the claims, shall be immediately convey to the petitioners.
16. Having regard to the fact that in the matter filed by riot victim, the respondent Nos. 1 to 3 have, despite orders by this Court, not cared to file reply stating relevant facts and justification, if any, for not considering the petitioners' case for such long time, it appears appropriate that the concerned officer responsible for the delay and default caused in filing reply should be visited with order of cost. Such direction is required to be passed in view of the fact that delay of 4 years is caused in present proceedings for want of reply by respondent Nos. 1 to 3 who, despite adjournment having been granted at their request, did not file reply affidavit and also in view of the fact that so far as the petitioners are concerned length of delay in considering their application in light of all relevant material is of almost about 8 years. Therefore, it is directed that the concerned – responsible officer shall pay, within 4 weeks, a sum of Rs.1500/- as cost for delay caused in present proceedings to the petitioners and Rs.1000/- to the Legal Aid Committee.
16.1 A copy of this order may be forwarded to the Legal Aid Committee. In case of delay or default in making payment as aforesaid, the petitioner and the Legal Aid Committee can take steps in accordance with law to recover said amount.
17. It is hoped that the concerned respondent, particularly respondent No. 1 shall henceforth be careful not to be casual in filing reply in the litigation pending in the Court and cause delay in deciding the cases.
In view of the foregoing reasons and discussions the petition is party allowed. Rule is made absolute to the aforesaid extent. Cost in the proceedings shall be the cost as per paragraph No.16 of present order.
With the aforesaid clarification the petition is disposed of accordingly. Sd/-
Suresh* (K.M.THAKER.J.)