Zubedaben Valimamad vs Und Irrigation Scheme
2021 Latest Caselaw 7672 Guj

     C/FA/1730/2021                                       ORDER DATED: 05/07/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1730 of 2021

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                         ZUBEDABEN VALIMAMAD
                                  Versus
                         UND IRRIGATION SCHEME
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Appearance:
MR GM AMIN(124) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MS.NIDHI VYAS. AGP(99) for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                              Date : 05/07/2021

                               ORAL ORDER

Heard learned advocate Mr.G.M.Amin for the appellant- original claimant and learned Assistant Government Pleader Ms.Nidhi Vyas.

2. The present appeal under Section 54 of the Land Acquisition Act, 1894, read with Section 96 of the Code of Civil Procedure, 1908, is directed against judgment and award dated 10.8.2018 in Land Acquisition Reference Case No.169 of 2006 passed by learned 3rd Additional Senior Civil Judge, Jamnagar, whereby the Reference Court rejected the Reference of the claimant and maintained the amount awarded towards compensation by Land Acquisition Officer. It was held and declared that the applicant was not entitled to any additional or enhanced amount of compensation.

3. The land of the petitioner bearing revenue survey No.348, admeasuring 1153 sq.mtrs situated at village Pasaya, Taluka and District Jamnagar, was acquired under the provisions of Land Acquisition Act, 1894 for the purpose of RUPAREL Irrigation Scheme. Notification under Section 4 of the Land Acquisition Act

C/FA/1730/2021 ORDER DATED: 05/07/2021

(hereinafter referred to as 'the Act') came to be published on 9.12.2004. Notification under Section 6 was published on 24.3.2005. The respondents were served under Sections 6 and 9 of the Act. The Land Acquisition Officer in L.A.Q case No.74 of 2003 passed award on 22.3.2006 under Section 11 of the Act granting compensation to the land owner- claimant at Rs.4.75 per sq.mts.

3.1 The claimant- land owner having being aggrieved by award of the Land Acquisition Officer and the extent of amount granted as compensation, preferred reference under Section 18 of the Act which was dealt with by Reference Court resulting into impugned judgment and award.

3.2 As could be noticed from impugned judgment and award, it is recorded by the Court that notice was issued to the parties in the reference proceedings specifying the date on which they were required to appear. The respondent appeared and filed written statement to object and deny the case of the claimant. It is stated that the issues were framed, however on behalf of the claimant, nobody appeared. Learned Judge proceeded to mention that twelve adjournments were granted and the Court waited for eighteen months for the evidence of the claimant, but in vain. It was reasoned that the claimant did not choose to participate, neither led the evidence nor sought for adjournment.

3.3 Issue framed by the reference Court was that whether the compensation awarded by the Land Acquisition Officer was inadequate and unreasonable, which was answered in negative. The other issue was whether the applicant was entitled to enhanced compensation for acquired land and if yes, what amount they are entitled. This was also answered in negative.

C/FA/1730/2021 ORDER DATED: 05/07/2021

Though the reference was held to be within limitation, the operative order was passed. The Reference Court stated that burden was on the applicant- claimant which was not discharged.

4. In other words, on the above reasoning, the reference of the claimant- applicant came to be dismissed ex-parte.

5. While it may be true that the Court below gave opportunities to the claimant, still, however, the appellant- claimant did not participate in the proceedings and did not turn up, the ground mentioned in the memorandum of the appeal would outweigh. It is stated that the several parcel of lands of village Pasaya / Nani Matli came to be acquired in the RUPAREL Irrigation Scheme. The land owners were dissatisfied with the award passed by the Land Acquisition Officer and they raised their respective References. These all References were pending before the Court of 7th Additional Senior Civil Judge, Jamnagar, out of those cases, some of the cases came to be transferred to 3rd Additional Senior Civil Judge, Jamnagar. The present judgment and award, whereby reference came to be awarded is by 3rd Additional Senior Civil Judge.

5.1 It is the case that the advocate of the appellant- claimant was under impression that all the matters would be dealt with by learned 7th Additional Senior Civil Judge, Jamnagar as it was that Court before whom the References were pending and that they all involved similar facts in the controversy. It was therefore stated that in view of such position and impression, the appellant- claimant did not appear before the Court of 3 rd Additional Senior Civil Judge, Jamnagar believing that all the References would be dealt with and decided by learned 7 th

C/FA/1730/2021 ORDER DATED: 05/07/2021

Additional Senior Civil Judge, Jamnagar.

5.2 The non-appearance by the appellant- claimant before the Court of 3rd Additional Senior Civil Judge, Jamnagar in his reference was therefore, on account of reasons stated above. Secondly, as the claimant reeling under the impression, failed to appear before the Court where their references had been pending, expecting that the same would be disposed of on same lines as other cases were decided. It is relevant to state that similar such reference cases came to be decided by 7 th Additional Senior Civil Judge, Jamnagar and compensation was enhanced at Rs.45/- per sq.mts for Bagayat land and Rs.40/- per sq.mts for Jirayat land.

5.3 It could not be said that there was deliberate conduct on part of the appellant- claimant to avoid the attendance before the Court of 3rd Additional Senior Civil Judge, Jamnagar and not to remain present in the reference proceedings. The ground put forth is eminently acceptable. When the reason stands as above, the impugned judgment and order by Reference Court rejecting the reference and deciding ex-parte that the compensation awarded by the Land Acquisition Officer was just and proper, needs to be set aside and the case deserves to be remanded.

6. Accordingly, the impugned judgment and award dated 10.8.2018 of learned 3rd Additional Senior Civil Judge, Jamnagar in Land Acquisition Reference Case No.169 of 2006 is hereby set aside. The proceedings of Land Acquisition Reference Case No.169 of 2006 are remanded to the said Reference Court for rendering judgment and award afresh on merits and in accordance with law.

          C/FA/1730/2021                          ORDER DATED: 05/07/2021



6.1       The Reference Court shall deliver fresh judgment and

award as directed above after giving opportunity to the parties including appellant- claimant about leading evidence.

6.2 The above exercise shall be undertaken and completed by the Court below expeditiously and within nine months from the date of receipt of this order.

7. This appeal is allowed in the aforesaid terms.

(N.V.ANJARIA, J) Manshi