Motibhai Rayjibhai Parmar vs Pratapbhai Bakorbhai Parmar
2021 Latest Caselaw 3095 Guj

               C/CRA/47/2020                             ORDER



               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                 R/CIVILREVISIONAPPLICATIONNO. 47 of 2020

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                          MOTIBHAIRAYJIBHAIPARMAR
                                    Versus
                         PRATAPBHAIBAKORBHAIPARMAR
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Appearance:
DECEASEDLITIGANT(100)for the Applicant(s)No. 4
MRHARSHADRAYA DAVE(3461)for the Applicant(s)No. 1,2,3
for the Opponent(s)No. 6,7
MRASHISHH SHAH(2142)for the Opponent(s)No. 1,2,3,4,5
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 CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date: 23/02/2021

                                ORALORDER

1. Heard Mr.Harshadray Dave learned advocate for the

applicant and Mr.Ashish Shah learned advocate for the

respondents.

2. Under challenge in this Civil Revision Application is an order

passed by the Court below by which the application of the

defendant under Order 7 Rule 11(d) of the Civil Procedure

Code ('the Code' for short) has been rejected. The order is

dated 16.04.2019 passed in Special Summary Suit No.547 of

2018. The primary contention raised by Mr.Harshadray Dave

learned advocate for the applicant­original defendant is that

the suit is impliedly barred and the only remedy available to

C/CRA/47/2020 ORDER

the respondent­original plaintiff was by way of an

appropriate application under the National Highways Act,

1956, ('the Act' for short) especially Section 3H(3) and

Section 3H(4) of the Act. Mr.Dave would take the Court

through the definition of "District" under Sections 2(4) and 9

of the Code to submit that reading these provisions with

Section 3H(3) of the Act, the suit of the plaintiff was

impliedly barred.

3. In his submission, sub­section (3) of Section 3H would entail

competence upon the authority to determine the person who

is entitled to receive compensation under the Act and

therefore the suit was impliedly barred.

4. Against that, Mr.Ashish Shah learned counsel for the

applicant would submit that Sub­Section (3) of Section 3H

only determines the person's entitlement not vis­a­vis the

question of ownership etc. and that has to be only within the

realm of the Civil Code. He would rely on the decision of the

Supreme Court in the case of Ramji Gupta and Anr v. Gopi

Krishan Agrawal and Ors. reported in AIR 2013 SC 3099.

C/CRA/47/2020 ORDER

5. Perused the application, the memo of the plaint and

considered the arguments advanced by the learned counsel

for the respective parties.

6. From the plaint, when it is read in its entirety, the case of the

respondent original plaintiff is that the defendant nos.1 to 5

are cousins of the plaintiffs. Surajben, the mother of the

defendant was an aunt of the plaintiffs, and according to the

plaintiffs, without the consent of other brothers, the plaintiffs'

father made revenue entries by virtue of which entries of

succession in her favour were entered into. The dispute

therefore in a nutshell before the Civil Court was whether the

plaintiffs or the defendants inter se were entitled to the

benefit of the land in question by way of succession. It was in

this context the prayers made in the plaint especially para

11A needs to be appreciated.

7. Perusal of the judgment of the Supreme Court, particularly,

paras 30 and 31, read as under:

"30. The matter basically relates to the apportionment of the amount of compensation received for the land acquired. This Court, in May George v. Special Tahsildar & Ors., (2010) 13 SCC 98, has held, that a notice under Section 9 of the

C/CRA/47/2020 ORDER

Act, 1894, is not mandatory, and that it would not by any means vitiate the land acquisition proceedings, for the reason that ultimately, the person interested can claim compensation for the acquired land. In the event that any other person has withdrawn the amount of compensation, the "person interested", if so aggrieved, has a right either to resort to the proceedings under the provision of Act 1894, or he may file a suit for the recovery of his share. While deciding the said case, reliance has been placed upon a large number of judgments of this Court, including Dr. G.H. Grant v.

State of Bihar, AIR 1966 SC 237.

31. The said case is required to be examined from another angle. Undoubtedly, the respondents did not make any application either under Section 18 or Section 30 of the Act, 1894 to the Land Acquisition Collector. The jurisdiction of the Reference Court, vis­à­vis "persons interested" has been explained by this Court in Shyamali Das v. Illa Chowdhry & Ors., AIR 2007 SC 215, holding that the Reference Court does not have the jurisdiction to entertain any application of pro interesse suo, or in the nature thereof. The Court held as under:

"The Act is a complete code by itself. It provides for remedies not only to those whose lands have been acquired but also to those who claim the awarded amount or any apportionment thereof. A Land Acquisition Judge derives its jurisdiction from the order of reference. It is bound thereby. His jurisdiction is to determine adequacy and otherwise of the amount of compensation paid under the award made by the Collector". Thus holding that, "It is not within his domain to entertain any application of pro interesse suo or in the nature thereof."

The plea of the appellant therein, stating that the title dispute be directed to be decided by the

C/CRA/47/2020 ORDER

Reference Court itself, since the appellant was not a person interested in the award, was rejected by this Court, observing that the Reference Court does not have the power to enter into an application under Order I Rule 10 CPC."

8. The above referred paras would indicate that determination

of persons as contemplated under Section 3H of the National

Highways Authority Act would not vest the jurisdiction in

such authority to decide inter­se entitlement vis­a­vis their

lineage by succession unless a competent Civil Court

otherwise holds in their favour.

9. Mr.Dave would dispute the applicability of the decision

inasmuch as, had the plaintiff approached the Reference

Court, that option of the Reference Court having taken a

decision would have been appropriately considered because

here it is a case of the plaintiff for a decision of determination

of entitlement to compensation by approaching the Civil

Court rather than approaching the authority under Section

3H(3) of the Act.

10. Considering the above, prima­facie, this Court is of the

opinion that in a matter of deciding inter­se rights between

C/CRA/47/2020 ORDER

the parties in the matter of succession unless and until a

competent Civil Court would adjudicate on the same, the

Reference Court may not be in a position to determine the

persons to whom the compensation can be paid.

11. In view of the above, the Civil Revision Application is hereby

dismissed with a clarification that the observations made by

the Trial Court in the impugned order as well as the

observations made by this Court in this order, shall not come

in the way of the Trial Court while deciding the suit on

merits. The Trial Court is requested to expedite the hearing

of the suit and dispose of the same preferably within a period

of six months from today.

(BIRENVAISHNAV,J) ANKITSHAH