C/FA/316/2023 ORDER DATED: 07/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 316 of 2023
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DEVKUBEN TAPUBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR NITIN M AMIN(126) for the Appellant(s) No. 1,2,3,4,4.1,4.2,4.3
MR SANJAY M AMIN(130) for the Appellant(s) No. 1,2,3,4,4.1,4.2,4.3
MS KRUSHITA DAVE, ASSISTANT GOVERNMENT PLEADER for the
Defendant(s) No. 1
NOTICE NOT RECD BACK for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 07/03/2023
ORAL ORDER
1. Heard learned Advocate Mr. Nitin M. Amin on behalf of the appellants and learned AGP Ms. Krushita Dave for the respondent-State.
2. Issue rule returnable forthwith. Learned AGP Ms. Dave waives service of rule on behalf of the respondent-State.
3. With consent of the parties, the present first appeal is taken up for final decision.
4. By way of this appeal, the appellants seek to assail judgment and order dated 02.12.2022 passed by the learned 8th Additional Senior Civil Page 1 of 6 Downloaded on : Mon Mar 13 20:32:54 IST 2023 C/FA/316/2023 ORDER DATED: 07/03/2023 Judge, Bhavnagar in Land Reference Case No. 34 of 1989, more particularly, whereby learned Reference Court has dismissed the reference application preferred by the appellants herein.
5. It would appear that as far as the appellants are concerned, the present is the second round of litigation, more particularly, it appears that originally vide an order dated 14.12.2017 the first appeal had been dismissed, more particularly, on account of the fact that the appellants could not join themselves as legal heirs of the original claimant in spite of order permitting the same since the papers of the reference case had been tagged along, by mistake, with another reference case.
6. Be that as it may, vide an order dated 30.09.2022, a learned Co- ordinate Bench of this Court, Coram: Justice A. S. Supehia J., had quashed and set aside the impugned judgment dated 14.12.2017 inter alia after holding that the claimants shall not be entitled to interest on enhanced compensation if any and whereas, learned Co-ordinate Bench had remanded the matter back to the learned Reference Court to decide the same as expeditiously as possible but not later than 31.12.2022.
7. It would appear that the Writ of this Court, more particularly, with Page 2 of 6 Downloaded on : Mon Mar 13 20:32:54 IST 2023 C/FA/316/2023 ORDER DATED: 07/03/2023 regard to order dated 30.09.2022 had been received by the learned Reference Court on the 14.11.2022 and whereas thereafter, the Court had fixed 4 dates i.e. on 19.11.2022, 21.11.2022, 25.11.2022 and 29.11.2022. It appears that since the learned Advocate for the present appellants, could not remain present on the 4 dates, the learned reference Court, more particularly, since the learned Court was of the opinion that the reference case had to be decided as per the direction of this Court, had dismissed the reference itself.
8. Learned Advocates for the parties have made various submissions and whereas, since this Court is considering setting aside of the impugned decision and remanding the matter back to the learned Reference Court, therefore, all such submissions, as are necessary for deciding the present appeal have been dealt with by this Court herein below.
9. It would appear that the learned Reference Court, was felt pressurized on account of the direction of this Court of directing to decide the reference on or before the 31.12.2022. In the considered opinion of this Court, while it is undoubtedly true that all the Courts subordinate to this Court are required to follow, comply and carry out the directions issued by this Court but at the same time, directions issued cannot be read Page 3 of 6 Downloaded on : Mon Mar 13 20:32:54 IST 2023 C/FA/316/2023 ORDER DATED: 07/03/2023 out of the context in which they have been passed. This Court in order dated 30.09.2022 had directed expeditious hearing, more particularly, considering the fact that the reference itself is of the year 1989. In this regard it also requires to be mentioned that the direction of this Court to decide the reference by the 31.12.2022, had been received by the learned Court itself as late as on 14.11.2022. Thus, while the learned Court ought to have made an endevour to finally decide the land Reference before 31.12.2022 and in case, if the learned Reference Court could not decide the same then appropriate application for extension of time ought to have been filed that the fact of the writ being received by learned Reference Court approximately after one and half months of order dated 30.09.2022, was a reasonable and justifiable ground for the learned Reference Court to have sought for extension of time.
10. This Court also at this stage, seeks to reiterate that reference cases under the Land Acquisition Act i.e. either under the old act or under the new act, are beneficial proceedings, more particularly, whereby Reference Court, has the benefit of the entire material with regard to the acquisition proceedings before itself and whereas, as directed by this Court time and again, even in absence of the claimant or advocates for the claimants, it would be open for the Reference Court to have considered Page 4 of 6 Downloaded on : Mon Mar 13 20:32:54 IST 2023 C/FA/316/2023 ORDER DATED: 07/03/2023 the material on record and decide the reference cases.
11. In the instant case, by adjourning the cases consequently i.e. from 19 to 21 to 25 to 29 of November, 2022, it could be stated that adequate opportunity, had not been granted by the Reference Court to the present appellants. Again as noted herein above, if the learned Reference Court was concerned about meeting with the time limit as directed by this Court, then it was open for the Reference Court to have decided the reference proceedings, on basis of the material and evidence which were already there on record. Just with a view to comply with the direction of this Court if the reference is dismissed without deciding on merits, in the considered opinion of this Court, would not be sufficient comply.
12. Considering the above, while the present first appeal requires interference, appropriate directions are also required to be issued to the Court concerned to decide the reference proceedings expeditiously albeit after giving adequate opportunity and in accordance with law.
13. In view of the discussion, observations and conclusions as herein above, the following directions are passed.
[1] Impugned judgment and order dated 02.12.2022 in LAR No. 34 Page 5 of 6 Downloaded on : Mon Mar 13 20:32:54 IST 2023 C/FA/316/2023 ORDER DATED: 07/03/2023 of 1989, passed by the learned 8th Additional Senior Civil Judge, Bhavnagar is hereby quashed and set aside.
[2] The learned Reference Court is directed to decide the reference case being LAR No. 34 of 1989, within a period of 3 months from the date of receipt of writ of order of this Court.
[3] It is clarified that in view of setting aside of the present order miscellaneous orders whereby stage of leading evidence having been closed etc., shall be treated as having been set aside by this Court.
[4] The learned Reference Court shall pass appropriate orders after giving adequate opportunity to both the sides of leading evidence. [5] It is further clarified that in case of non-co-operation of any of the parties, it would be open of the learned Reference Court to pass judgment on the merits based upon the material/ evidence which is on record.
14. With these observations and directions the present first appeal stands disposed of as allowed.
(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia Page 6 of 6 Downloaded on : Mon Mar 13 20:32:54 IST 2023