Lhs Of Bhangi Bhemabhai Ujabhai vs Executive Engineer
2021 Latest Caselaw 18105 Guj

    C/SCA/11989/2021                               JUDGMENT DATED: 06/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11989 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-

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1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            No

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                       LHS OF BHANGI BHEMABHAI UJABHAI
                                    Versus
                             EXECUTIVE ENGINEER
==========================================================
Appearance:
MR JINESH H KAPADIA(5601) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5
MR SHIVAM DIXIT, AGP for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                               Date : 06/12/2021

                               ORAL JUDGMENT

1 Heard Mr. Jinesh Kapadia, learned advocate

for the petitioners and Mr. Shivam Dixit, learned

Assistant Government Pleader for the respondent No.2.

C/SCA/11989/2021 JUDGMENT DATED: 06/12/2021

Though served no one appears for respondent No.1.

2 As the issue involved in this petition is

very short, with the consent of learned advocates for

the parties, this petition is taken up for hearing

today itself.

3 Rule. Mr. Shivam Dixit, learned Assistant

Government Pleader, waives service of notice of rule

on behalf of respondent - State.

4 By way of this petition, the petitioners

have prayed for quashing and setting aside the order

dated 18.02.2021 passed in LAR No.412 of 2000 by the

learned Principal Senior Civil Judge, Palanpur and

further prayed to allow the petitioners to make

amending in LAR No.412 of 2000.

5 It is the case of the petitioners that the

land bearing survey Nos.85 and 47 of village Mesara,

Taluka Deodar was acquired by the respondent and

award under Section 11 of the Land Acquisition Act

was passed. The compensation pursuant to the award

C/SCA/11989/2021 JUDGMENT DATED: 06/12/2021

was awarded in favour of the petitioner. Thereafter

the petitioners preferred a reference under Section

18 of the Act and which was referred to reference

court, which was numbered as LAR No.412 of 2000.

5.1 During the pendency of the application, the

original petitioner - Bhangi Bhemabhai Ujabhai

expired on 23.11.2016 and hence an application for

bringing legal heirs and for setting aside the

abatement was preferred. The said application was

allowed by order dated 29.11.2019 and legal heirs of

deceased - Bhangi Bhemabhai Ujabhai were required to

be brought on record. Accordingly, legal heirs of

Bhemabhai were brought on record pursuant to the

order dated 29.11.2019 passed in CMA No.18 of 2019

and thereafter even the petitioner No.1/1 - Parmar

Leelaben Bhemabhai also expired subsequently. Since

all the legal heirs of deceased - Bhemabhai were on

record and no further legal heirs pursuant to the

death of petitioner No.1/1 - Parmar Leelaben

Bhemabhai were required to be brought on record, the

present petitioner preferred application for deletion

of name of petitioner No.1/1 was preferred and

C/SCA/11989/2021 JUDGMENT DATED: 06/12/2021

presented before the concerned court on 25.02.2020

and the said application was allowed by the reference

court.

5.2 Though the aforesaid application was

allowed on 25.02.2020, somehow the petitioner could

not amend the cause title by deleting name of

petitioner No.1/1 - Parmar Leelaben Bhemabhai in LAR

No.412 of 2000 in spite of the fact that sufficient

opportunities were granted to the petitioners.

5.3 Therefore, after waiting for almost about a

year, the learned Principal Senior Civil Judge,

Palanpur vide order dated 18.02.2021 passed below

Exh.1 in LAR No.412 of 2020 disposed of the reference

as the petitioner did not amend the cause title.

Hence, the petitioner has preferred petition

challenging the order dated 18.02.2021.

6 Mr. Kapadia, learned advocate submitted

that merely because the petitioners could not amend

the cause title by deleting name of the applicant

No.1/1 - Parmar Leelaben Bhemabhai in LAR No.412 of

C/SCA/11989/2021 JUDGMENT DATED: 06/12/2021

2000 the entire reference was not required to be

disposed of by the court below. He submitted that due

to the circumstances beyond the control of the

applicant and due to COVID-19 the courts were not

physically opened, the amendment could not be carried

out by the petitioner. He further submitted that if

the order under challenge is quashed, the petitioner

undertakes to amend the cause title within a period

of one month from the date of receipt of the order.

7 Mr. Dixit, learned Assistant Government

Pleader opposed the order by submitting that such

negligence on the part of the petitioners cannot be

viewed lightly, and therefore, the learned reference

court has rightly passed the order as the petitioner

could not amend the cause title despite giving number

of opportunities.

8 Considering the facts and circumstances of

the case and considering the fact that though the

petitioner was given opportunities, the period during

which the petitioner is alleged to have remained

negligent was a period dominated by the pandemic

C/SCA/11989/2021 JUDGMENT DATED: 06/12/2021

COVID-19 and it is also true that for quite for some

time, the courts were not functioning physically. At

this stage, it has been pointed out by Mr. Kapadia

that even the husband of petitioner No.1/1 succumbed

to COVID-19 in January, 2021, and therefore, there

was no one to guide the petitioner.

9 Considering the totality of the facts and

circumstances of the case and considering the fact

that the present application is arising out of the

proceedings undertaken under Section 18 of the land

Acquisition Act, and the petitioner has already lost

his land pursuant to the acquisition proceedings and

though the compensation was awarded pursuant to the

award passed since the same was found to be

inadequate, the applicant preferred application

under Section 28 of the Act, which ultimately

culminated into the LAR No.412 of 2000, and

therefore, when the petitioner has lost his land and

by way of the LAR No.412 of 2000 is praying for

adequate compensation, the reference made by the

petitioner cannot be thrown away on the technical

ground, the order impugned in this petition dated

C/SCA/11989/2021 JUDGMENT DATED: 06/12/2021

18.12.2021 passed below Exh.1 in LAR No.412 of 2000

by the learned Principal Senior Civil Judge, Palanpur

is hereby quashed and set aside and the petitioner is

directed to amend the cause title within a period of

one month from today. This petition is accordingly

allowed. Rule is made absolute to the aforesaid

extent only. However, there shall be no order as to

costs.

Sd/-

(NIRZAR S. DESAI,J) P. SUBRAHMANYAM