Gujarat High Court Case Information System
Print
FA/4389/2008 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4389 of 2008
With
FIRST
APPEAL No. 4390 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ISHWARBHAI
DHOLABHAI DESAI SINCE DECD. THRO’ HEIRS – Appellant(s)
Versus
SPECIAL
LAQ OFFICER & 3 – Defendant(s)
=========================================================
Appearance
:
MR
HM PARIKH for
Appellant(s) : 1,
MS SACHI MATHUR, ASST.GOVERNMENT PLEADER for
Defendant(s) : 1,
RULE SERVED for Defendant(s) : 2,
DELETED for
Defendant(s) : 3 –
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 23/02/2011
ORAL
COMMON JUDGMENT
Both
these appeals arise out of a common judgment and award rendered by
learned Civil Judge (S.D.), Nadiad on 24.2.2004 in Land Acquisition
Case Nos.214 and 215 of 1991 whereby the land references preferred
by the respective claimants came to be dismissed.
Perusing
the impugned judgment and award, it transpires that the reference
Court did not ascertain the market value of the lands under
acquisition, but both these cases came to be dismissed on same
technical grounds. So far as LAQ No.214 of 1991 was concerned, the
reference Court held that there was a dispute between claimant
Ishwarbhai Dholabhai Desai (now deceased) and the opponents No.3 and
4, namely, Vaghri Ratibhai Gulabbhai and Shankarbhai Gulabbhai
Vaghri regarding the ownership and possession of the land under
acquisition. The case of the claimant was to the effect that the
opponents No.3 and 4 did not succeed before the tenancy Court and
the tenancy Court came to the conclusion that they had no right or
lien over the land. However, mere fact that in village forms 7 and
12, the names of opponents No.3 and 4 emerged as cultivator and,
therefore, the reference Court came to the conclusion that the whole
reference deserved dismissal. The reference Court further observed
that after the death of the original claimant Ishwarbhai Dholabhai,
though by substitution his son Kanubhai Ishwarbhai was impleaded as
claimant, but the reference Court came to the conclusion that
Kanubhai Ishwarbhai, the son of Ishwarbhai failed to produce probate
of will allegedly executed by Ishwarbhai and on that count it was
held by the reference Court that LAQ Case No.214 of 1991 deserved
dismissal. So far as LAQ Case No.215 of 1991 is concerned, the
reference Court while dismissing the said case observed that in LAQ
Case No.215 of 1991, opponents No.3 and 4 are not joined and,
therefore, both the cases could not have been consolidated. In
short, by assigning the above reasons, the reference Court dismissed
both the reference cases without determining the just and fair
amount of compensation.
Mr.H.M.Parikh,
learned counsel representing the appellant submitted that the
reference Court has taken a very hyper-technical view and without
determining just and fair compensation, which the claimants are
entitled to get, the reference Court dismissed both the land
reference cases. It is submitted that so far as the Land Reference
Case No.214 of 1991 is concerned, even the other side did not raise
any dispute that Kanubhai Ishwarbhai was not the son and legal
representative of deceased claimant Ishwarbhai Dholabhai. Ishwarbhai
Dholabhai died pending said reference case before the reference
Court and by order of the reference itself, Kanubhai Ishwarbhai, the
son and legal representative of Ishwarbhai was brought on record. It
is further submitted that the claimant himself joined opponents No.3
and 4 in the reference, so that dispute, if any, can be conveniently
resolved and the claimant had come forward with documentary evidence
showing that even the so called claim over the acquired land of the
opponents No.3 and 4, was not considered by competent tenancy Court.
That the opponents No.3 and 4 posed themselves as tenant in the
acquired land, but their case was not at all accepted by the
competent tenancy Court and they had lost said case.
3.1 So
far as the dismissal of Land Reference Case No.215 of 1991 is
concerned, Mr.Parikh, learned counsel submitted that the aforesaid
land reference case was filed by appellant – claimant
Rohitbhai Vinubhai Desai and it is true that opponents No.3 and 4
who were opponents in LAQ Case No.214 of 1991 were not joined in LAQ
Case No.215 of 1991 as they had no dispute whatsoever regarding the
land went in acquisition of claimant Rohitbhai, despite this the
reference Court held that order of consolidation in both the matters
was not appropriate since opponents No.3 and 4 were not joined as
co-opponents in Land Reference Case No.215 of 1991 and, therefore,
came to the conclusion that even Land Reference Case No.215 of 1991
deserved dismissal.
Mr.Parikh,
learned counsel representing the appellants therefore submitted that
the impugned judgment and award rendered by the reference Court may
be set-aside and both the reference cases may be remanded to the
reference Court with specific direction to decide both the cases on
merits within a stipulated period.
In
light of the above situation and further the fact that the reference
Court did not ascertain the market value of the lands under
acquisition and did not determine the amount of compensation,
Ms.Mathur, learned AGP for the opponents submitted that necessary
orders may be passed in this appeal.
I
have gone through the record and proceedings in context with the
submissions advanced by the rival sides.
First
of all, the bare perusal of the impugned judgment and award rendered
by the reference Court, it clearly transpires that though one of the
issues framed by the reference Court was to the effect as to whether
the compensation awarded by the Land Acquisition Officer is not fair
and adequate? If yes, what additional compensation the claimants are
entitled to? It appears that the said issue has not at all been
replied by the reference Court and both the land reference cases
came to be dismissed merely on technical ground.
So
far as dismissal of Land Reference Case No.214 of 1991 is concerned,
the reference Court observed that since there was dispute about the
land between the claimant and opponents No.3 and 4 in said matter
and, therefore, instead of resolving the same, the reference Court
on that ground dismissed the reference case. Another ground arising
for dismissal of same reference case is that the original claimant
Ishwarbhai Dholabhai, who died during the pendency of aforesaid
reference case and in his place his son and legal heir Kanubhai
Ishwarbhai Desai was substituted as claimant, the reference Court
observed that as Ishwarbhai Desai had executed a will and as
Kanubhai Ishwarbhai failed to produce any probate of will, the
reference case was deserved to be dismissed. It appears that none of
the reasons assigned by the reference Court can be said to be
sufficient for dismissal of the reference case. As emerged from the
impugned judgment and order rendered by the reference Court, it was
the case of the claimant that opponents No.3 and 4 had no right,
title or any interest in the land acquired and even their claim came
to be dismissed even by competent tenancy Court. Instead of
examining the issue in its true perspective and on merits, the
reference Court thought it fit to make it a ground for dismissal of
the reference case. Moreover, nothing emerges that so far as
subsequently substituted claimant, namely, Kanubhai Ishwarbhai Desai
was concerned, the other side had ever raised the defence that he
was not heir and legal representative of deceased Ishwarbhai Desai.
So
far as dismissal of the land reference case No.215 of 1991 is
concerned, the reference Court dismissed said reference case on
rather more hyper-technical ground, namely, the consolidation of
both the reference cases was held to be improper. There is no
dispute that both the land reference cases arise out of the common
award passed u/s.11 of the Land Acquisition Act by the Land
Acquisition Officer. There was a common notification for the
acquisition of these lands published u/s.4 of the Act. The reference
Court observed that since in Land Reference Case No.215 of 1991, the
opponents No.3 and 4, who were respondents in Land Reference Case
No.214 of 1991 were not joined and, therefore, the consolidation was
improper. Perusing the impugned judgment and award rendered by the
reference Court, nothing emerges that opponent Nos.3 and 4 in Land
Reference Case No.214 of 1991 had any claim or alleged any claim in
the land of claimant Rohitbhai Vinubhai Desai of Land Reference Case
No.215 of 1991 and, therefore, this Court fails to understand as to
how the reference Court dismissed the Land Reference Case No.215 of
1991 on such ground.
Resultant
effect to the above discussions is that the impugned judgment and
award rendered by the reference Court deserves to be set-aside. As
stated above, the reference Court did not address itself to decide
and determine the compensation of the lands under acquisition and,
therefore, though the reference cases are very old, but there is no
option whatsoever but to remand both these matters. However,
considering the fact that the cases are very old, necessary
direction to the reference Court shall have to be given.
For
the foregoing reasons, both these appeals are allowed. The judgment
and award rendered by learned Civil Judge (S.D.), Nadiad on
24.2.2004 in Land Reference Case Nos.214 and 215 of 1991 are hereby
set-aside. Both the aforesaid Land Reference Cases are ordered to be
restored to the file of the reference Court and are ordered to be
remanded with specific direction that the reference Court shall
determine the amount of just and fair compensation on merits and
dispose of both the land reference cases in accordance with law,
preferably within three months from the date of receipt of the
record and proceedings. Registry is directed to send back record and
proceedings immediately. There shall be no order as to costs. Direct
service permitted.
(J.C.UPADHYAYA,
J.)
(binoy)
Top