Gujarat High Court
Madhuben Lerabhai vs Deputy Collector And Land ... on 9 February, 2021
Bench: Ashokkumar C. Joshi
C/SCA/2435/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2435 of 2021
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MADHUBEN LERABHAI
Versus
DEPUTY COLLECTOR AND LAND ACQUISITION AND REHABLITATION
(IRRIGATION) RAJKOT
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Appearance:
MR NITIN M AMIN(126) for the Petitioner(s) No. 1,2,3
MR SANJAY M AMIN(130) for the Petitioner(s) No. 1,2,3
for the Respondent(s) No. 1,2
MR. ADITYASINH JADEJA, AGP for the Respondent(s) No. 3
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 09/02/2021
ORAL ORDER
1. Heard learned Advocate Mr. Nitin M. Amin for the petitioners and
learned AGP Mr. Adityasinh Jadeja for the Respondent - State of Gujarat
through video conference.
2. The Petitioners (Legal Heirs of deceased Lerabhai Harjibhai namely (i)
Madhuben Lerabhai; (ii) Anubhai Lerabhai; and (iii) Manjuben Lerabhai, have
filed this petitioner under Article 226 of the Constitution of India for the
prayer;
"(a) To direct the reference court, the Principal Senior Civil Judge,
Botad, to permit correction of names of the petitioners in its award and
judgment according to their application for bringing heirs on record
and the order passed thereon and further be pleased to allow Civil
Misc. Application No. 90 of 2020 dated 07/11/2020 filed in LRC No. 29
of 2002;
(b) To grant prayer (a) above as interim order pending the hearing
and final disposal of this petition;
C/SCA/2435/2021 ORDER
(c) To pass any other appropriate order that is found just and
necessary in the interest of justice."
3. Learned Advocate for the petitioners has submitted that a very short
issue is involved in this petition with regard to the father's name i.e. 'LERA' ,
grandfather's name 'HARJI' was typed after the names of the legal heirs, which
is a technical error. It is further submitted by the learned Advocate for the
petitioners that the Actual Names of the heirs of deceased is as under:
(i) Madhuben Lerabhai [Instead of Madhuben Harjibhai]
(ii) Anubhai Lerabhai [Instead of Anubhai Harjibhai]
(iii) Manjuben Lerabhai [Instead of Manjuben Harjibhai]
4. It is submitted by the learned Advocate for the petitioner that the
Reference Court, Bhavnagar has also committed the error in typing the names
of the legal heirs and has orally directed that the court would not entertain the
application for execution.
5. It is further submitted by the learned Advocate for the petitioners that
the Respondents have filed First Appeal No. 4628 of 2018 before this court
challenging the judgment of the Reference Court, and by order dated 6.8.2020,
this court has permitted the claimants to withdraw 50% of the amount
deposited with the reference court by the respondents. It is submitted that the
petitioners, who are the heirs of the original claimant, have filed application for
withdrawal of 50% of the compensation amount as per the order passed by this
court in First Appeal No. 4628/2018 and also submitted an application being
CMA No. 90/2020 dated 7.11.2020 with a prayer to permit them to correct
their names as per their application for bringing the heirs on record.
Learned Advocate for the petitioners has submitted that the learned
Reference Court, however, is of the opinion that the petitioners should obtain
order from this court as the First Appeal No. 4628 of 2018 is pending before
C/SCA/2435/2021 ORDER
this court and as such no written order is passed, but, it has been orally
suggested to the petitioners by the Reference Court. Learned Advocate for the
petitioners has produced on record the memo of Land Reference Case No.
29/2002 at Annexure - C (Page No.16) wherein the names of the legal heirs of
deceased Lera Harjibhai, in the cause-title is shown as under;
(i) Madhuben Harjibhai (1/1)
(ii) Anubhai Harjibhai (1/2)
(iii) Manjubhai Harjibhai (1/3)
6. Learned Advocate for the petitioners has also placed on record the
pedigree at page no. 15 - Annexure - B wherein the names of the legal heirs is
shown as under:
(i) Madhuben Lerabhai
(ii) Anubhai Lerabhai
(iii) Manjuben Lerabhai
7. Learned AGP Mr. Adityasinh Jadeja for the Respondent - State of
Gujarat has fairly conceded that as per the pedigree placed on record, he has no
objection if the learned trial court proceeds with the matter.
8. Having heard the arguments advanced by both the sides, this petition is
taken up for final hearing today at the request made by both the sides.
Hence, RULE returnable forthwith. Learned AGP waives service of
notice of Rule on behalf of the Respondent - State of Gujart.
9. Pursuant to the pedigree placed on record at page no. 15 of this petition,
wherein the names of the legal heirs of deceased are shown as;
(i) Madhuben Lerabhai
C/SCA/2435/2021 ORDER
(ii) Anubhai Lerabhai
(iii) Manjuben Lerabhai
The death certificate of the deceased Lerabhai is also produced on
record at Annexure-B (Page No.14) coupled with fact that in the Land
Reference Case No. 29/2002 the names of the legal heirs is shown as;
Madhuben Harjibhai (1/1), Anubhai Harjibhai (1/2) and Manjuben Harjibhai
(1/3);
Therefore, prima facie it appears to be a technical error, which is
required to be corrected by way of amendment, and therefore, in the interest of
justice, this court is of the view that the technicality should not come in the way
of the petitioners, and hence, the petition deserves to be allowed and
accordingly stands allowed.
The prayer in terms of prayer 17 (a) is granted. The learned Principal
Senior Civil Judge, Botad is directed to proceed with the matter for joining the
heirs of deceased Lerabhai in accordance with the death certificate of Lerabhai
and the pedigree which is dated 5.9.2014 after availing the opportunity to both
the sides and pass appropriate order in accordance with law.
Rule is made absolute.
(A. C. JOSHI,J)
J.N.W
