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SCA/12497/2008 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12497 of 2008
For
Approval and Signature:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
&
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
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 Civil judge ?
=========================================================
KOKILABEN
SHANKERBHAI PATEL & 1 - Petitioner(s)
Versus
BHUPENDRA
SHANKERBHAI PATEL & 4 - Respondent(s)
=========================================================
Appearance
:
MR
RAJESH M CHAUHAN for Petitioners
MR. V B PATEL for Respondent(s) :
1,
MR AJ PATEL for Respondent(s) : 2 - 3.
NOTICE SERVED for
Respondent(s) : 4
Ms MONALI BHATT AGP Respondent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE K.M.THAKER 5th February 2010
ORAL
JUDGMENT
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
With
the consent of the learned advocates, this petition is heard and
decided today.
The present petition under Article 226 of the Constitution
arises from the Order dated 12th September 2008 made by
the learned Special Judge [Land Acquisition], Ahmedabad
(Rural) below Application Exhs. 158 & 166 in Land
Acquisition Reference No. 883 of 1989.
The petitioners and the respondents are the heirs in Class-I of one
Shankerbhai Chaturbhai Patel [hereinafter referred to as, the
said Shankerbhai ]. The said Shankerbhai owned land Block
No. 715, admeasuring 11921 sq.m. situated at Aslali. By Notification
dated 12th February 1986 issued under Section 4 of the
Land Acquisition Act, 1894 [hereinafter referred to as, the
Act ], the said land Block No. 715 has been acquired for
establishment of a Transport Nagar by the Ahmedabad Urban Development
Authority. By Award dated 12th May 1988, declared under
Section 11 of the Act, the Land Acquisition Officer offered
compensation @ Rs. 9/= per sq.m. The resultant compensation
in the sum of around Rs. 2,90,000/= was received by the said
Shankerbhai. Compensation in the sum of Rs. 1,00,000/= for bore,
pipeline, electricity connection, etc., was also received by the said
Shankerbhai. Pending the reference made under Section 18 of the Act,
the said Shankerbhai passed away. The respondents nos. 1 to 3 were
joined in the Reference as the heirs and legal representatives of the
said Shankerbhai. Under order made by the Hon’ble Supreme
Court, a sum of Rs. 12,09,832/= was paid on 23rd March
2001. The said sum, we are told, has been distributed amongst the
heirs of the said Shankerbhai and that there is no dispute about the
said sum of Rs. 12,09,832/=.
The
dispute in the present petition is in connection with Rs. 24,44,094/-
awarded by the District Court, Ahmedabad [Rural] on 19th
July 2005. The petitioners, the daughter, and the son of the deceased
daughter of the said Shankerbhai have made a grievance that the
entire sum of Rs. 24,00,000/= plus has been received by the
respondent no.1-one of the sons and that the petitioners are deprived
of their legitimate share in the said amount of compensation.
In
answer to the notice issued by the Court, the learned advocates Mr.
V.B Patel and Mr. A.J Patel have appeared for the respondent no.1 and
nos. 2 & 3 respectively. Mr. A.J Patel has submitted that the
aforesaid land Block No. 715 was the ancestral property in the hands
of the said Shankerbhai. The said Shankerbhai passed away intestate
in the year 1998. According to the then prevalent Hindu Succession
Act, on passing away of the said Shankerbhai and in view of the
intestacy of the said Shankerbhai, his properties would be deemed to
have been partitioned a day prior to his death. Thus, the said
Shankerbhai, his wife and his two sons had an equal share in the said
land Block No. 715. On passing away of the said Shankerbhai, his
share would devolve upon his wife and children equally i.e., from
one-fourth share of the said Shankerbhai, his wife Kamlaben, two
sons, two daughters and the son of the deceased daughter each will
have equal one-sixth share. The widow and the sons, each is entitled
to a sum of Rs. 7,12,860/= and each daughter and the son of the
deceased daughter is entitled to a sum of Rs. 1,01,837/= out of the
aforesaid sum of Rs. 24,44,094/=. Mr. Patel has further submitted
that still a claim for Rs. 76,84,812/= is pending in the Court in an
execution proceeding. The said sum of Rs. 76,84,812/= also, when
received, should be distributed amongst the heirs of the said
Shankerbhai in the aforesaid proportion. However, Mr. V.B
Patel and Mr. A.J Patel have, on behalf of the respondent no.1 and
the respondent nos. 2 & 3, agreed that out of the aforesaid sum
of Rs.24,44,094/=, the daughters and the son of the deceased
daughter each be paid a sum of Rs. 2,00,000/=.
From
the record, we find that Kamlaben, widow of the said Shankerbhai
had, on 9th October 2007, filed a purshis before
the learned Civil Judge Sr. Division, Ahmedabad [Rural] in
the Land Acquisition Reference No. 883/1989. As stated in the said
purshis, the aforesaid sum of Rs. 12,09,832/= was received by
the sons the respondent nos. 1 & 2 Bhupendrabhai Shankerbhai
Patel & Rameshbhai Shankerbhai Patel in equal proportion. The
respondent no.2-Ramesh Shankerbhai Patel, out of the amount received
by him, gave the mother her share. However, Bhupendrabhai did not
give the share of the mother.
It further transpires that the respondent no.1 Bhupendrabhai
Shankerbhai Patel has instituted Regular Civil Suit No. 787 of 2008
in the Court of learned Principal Senior Civil Judge, Ahmedabad
[Rural]. It is the case of the said Bhupendrabhai that the lands of
the said Shankerbhai was partitioned in his life time. The land block
No. 715 came to the share of the son Bhupendrabhai and the wife
Kamlaben. He has prayed for a declaration that the aforesaid land
Block No. 715 is the property of the said Bhupendrabhai and the
widow Kamlaben and that the other children of the said Shankerbhai
have no right, title or interest in the land Block No. 715; that he
and his mother widow of the said Shankerbhai alone have a right
to receive compensation for the said land Block No. 715 awarded by
the Special Court in Land Acquisition Reference No. 883 of 1989.
In
view of the above controversies; with the consent of the learned
advocates, we make the order as under :-
The
sum of Rs. 24,44,094/= deposited in the Court below will be
appropriated as under :-
The
daughters Kokilaben Shankerbhai Patel and Kanchanben Shankerbhai
Patel, and Manav-son of the deceased daughter-Virbalaben; each will
be paid Rs. 2,00,000/=. The sons Bhupendrabhai Shankerbhai Patel
and Rameshbhai Shankerbhai Patel each will be paid a sum of Rs.
6,00,000/=. The remaining amount and the interest earned, if any,
will be paid to Kamlaben Shankerbhai Patel-the widow of the deceased
Shankerbhai Chaturbhai Patel.
We
clarify that this order is made with the consensus of the learned
advocates by way of an interim arrangement, on assumption that
the land block no. 715 was the ancestral property; that the deceased
Shankerbhai Chaturbhai Patel died intestate and that there is no
dispute in respect of Rs. 12,09,832/= received in the year 2001. This
order does not decide the question of inheritance. If necessary, the
parties will be at liberty to take out appropriate proceeding for
settlement of the question of inheritance. This order or anything
said in this order will not preclude the respondent no.1
Bhupendrabhai Shankerbhai from pursuing the Civil Suit No. 787 of
2008 instituted by him.
The
payments made under this Order will be subject to any order made by a
court of competent jurisdiction in the subject matter.
The
petition stands disposed of in the above terms.
Registry will issue the writ forthwith.
{Ms.
R.M Doshit, J.}
{K.M
Thaker, J.}
Prakash*
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