Sitaben Ambubhai vs Shantaben Wd/O Nagjibhai ...
2021 Latest Caselaw 9716 Guj

      C/FA/4916/2019                                    ORDER DATED: 28/07/2021


            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 4916 of 2019
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                          SITABEN AMBUBHAI
                                Versus
                  SHANTABEN WD/O NAGJIBHAI NATHABHAI
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Appearance:
MR MAULIK R SHAH(6385) for the Appellant(s) No. 1,2
for the Defendant(s) No. 5
KRUTARTH K DESAI(9662) for the Defendant(s) No. 3,4
MR VIRAL V DAVE(3846) for the Defendant(s) No. 5.1,5.2
MR YOGESH P DAVE(6566) for the Defendant(s) No. 5.1
NOTICE SERVED BY DS(5) for the Defendant(s) No. 1,5.3,5.4,6
NOTICE SERVED(4) for the Defendant(s) No. 5.5
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                               Date : 28/07/2021

                                  ORAL ORDER

In this First Appeal, notice was issued on 10th October, 2019 for final disposal.

1.1 Heard learned advocates appearing for the respective parties.

2. The challenge is directed against judgment and order dated 07th August, 2019 of learned 5th Additional Senior Civil Judge, Bharuch. Thereby he dismissed Special Civil Suit No.31 of 2014 instituted by the plaintiffs. The suit was for recovery of the amount as well as for declaratory relief.

2.1 What was prayed by the plaintiffs in the suit that they were entitled to receive one-half of the total amount of Rs.01,69,06,449/- deposited in respect of compensation for acquisition of land, together with interest. It was prayed to declare that the plaintiffs were entitled to one-half share in the

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said amount. It was further prayed to pass the decree to direct respondent No.6 Mamlatdar to pay one-half of the said amount, that is Rs.83,53,224/- with interest to the plaintiffs.

3. The parties to the suit were in family relation. It was the case of the plaintiffs that the father of the plaintiffs named deceased Ambubhai Nathabhai and one Nagjibhai Nathabhai were real brothers. The plaintiffs were the straight line of heirs of said Ambubhai and that they had one-half share in the ancestral property. The suit property was agricultural land bearing Survey No.171, 460, 867 and 912 admeasuring as per the details given in paragraph No.2 of the plaint, and situated at Village Kadodara, Vaghra, District Bharuch, which came to be acquired under the Land Acquisition Act, 1894 for the purpose of Gujarat Industrial Development Corporation. For the said acquisition, compensation of Rs.01,69,06,449/- came to be deposited with respondent No.6 authority, in which the plaintiffs claimed one-half share to the extent of Rs.84,53,224/-.

3.1 It was stated that if plaintiffs and other defendants had gone to defendant No.6 authority to seek joint withdrawal of the amount, however it could not happen as there persisted dispute amongst the family members. It was stated that the defendants had personally come to the plaintiffs and told in anger and in threatening voice that they would not allow the plaintiffs to withdraw the amount even if it

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belong to the share of the plaintiffs. This development taking place a day before, as per the averment, gave rise to the cause of action to institute the suit, according to the plaintiffs.

3.2 The suit was contested by the defendants by filing written statement at Exh.10. The relationship between the parties was admitted by the defendants and also admitted was the nature of suit properties to be ancestral and jointly owned. Amongst the issues framed by the trial court at Exh.21, the first issue was whether the properties were ancestral; the second issue was whether the properties were acquired by GIDC; and the third was that whether the compensation amount was deposited. These all issues came to be answered in affirmative. Issue No.4 and issue No.5 were answered in negative and qua those issues, the court held that the plaintiffs could not prove that they had one-half share in the compensation amount or that they were entitled to get such one-half. It was observed that court could not have decided the prayers advanced in the suit.

3.3 In the reasoning of the court below, while dismissing the suit, Section 11 and Section 18 of the Land Acquisition Act were noted. They respectively provide for inquiry and award by the Collector, and for reference to the court. The court below thereafter proceeded to refer to Section 30 which deals with the disputes as to apportionment of the compensation amount. It provides that when the amount of compensation has been settled under Section 11 of

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the Act and if any dispute arises regarding apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute for the decision of the court.

4. As mentioned above, issue No.4 before the court was whether plaintiffs could prove that they had one half share in the compensation amount whereas the issue no.5 was whether the plaintiffs proved that they were entitled to get the one half share to the tune of Rs. 84,53,224/- out of the total deposited. On the basis of the aforesaid provisions in particular focusing on section 30 the court below answered the said two issues in negative.

4.1 The following came to be reasoned by the court below,

"12.2 As per the above provisions of Land Acquisition Act, the Collector is required to pass an award for not only area of acquired lands and amount of compensation but also with regard to apportionment of compensation between interested persons. Section 18 of the Land Acquisition Act provides that any person who has an objection with regard to measurement of land, the amount of compensation, the persons to whom it is payable or even with the apportionment of the compensation amongst the persons interested, he has to file a Reference before the Collector who would refer the same for determination of Reference Court. In the same way, when there is a dispute as to Apportionment, the Collector may refer such dispute to the decision of the Reference Court u/s. 30 of the Land Acquisition Act. Thus, whenever any dispute arises relating to matters under Land Acquisition Act the Reference Court has jurisdiction to decide the said dispute. But Civil Court has no jurisdiction. Herein, present case it is an admitted fact that the parties at dispute regarding apportionment of the amount of compensation which is awarded under the Land

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Acquisition Act. Therefore, the proper course for the parties is to file a Reference. The plaintiffs have, instead of filling a Reference before the Collector, filed present suit. But this court, as a Civil Court, has no jurisdiction to decide that what share the plaintiffs are entitled to get in the amount of compensation awarded under the Land Acquisition Act. Only the Reference Court can decide about the apportionment of compensation awarded under the Land Acquisition Act. Therefore, when this court has no jurisdiction to decide about the apportionment of compensation between the parties, it cannot decide that whether the plaintiffs are having 1/2 share in the total amount of compensation awarded under the Land Acquisition Act. Also this court, as a Civil Court, cannot decide whether plaintiffs are entitled to get Rs. 84,53,224/- from total amount of compensation. Since this court has no jurisdiction, Issue Nos. 4 and 5 are answered in negative."

5. From the above discussion, it becomes clear that the court below has applied its mind in respect of the suit prayers in the context of Section 30 of the Land Acquisition Act. The court held the view that the parties are at dispute regarding apportionment of amount of compensation. It was reasoned that only Reference Court can decide such issue and such aspect and that the Civil Court did not have the jurisdiction to decide the suit.

5.1 A close consideration of the prayers in the suit and the relief sought would go to show that the relief claimed was of the recovery of the amount and the nature of decree prayed for was declaratory, that the plaintiffs were entitled to one-half of the compensation amount. The plaint averred that the parties had gone to defendant No.6 jointly to get the amount but did not succeed. The prayers were in the nature of declaratory relief. The court below

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committed an error in adverting to the provisions of Section 30 of the Land Acquisition Act to hold that it had no jurisdiction, more particularly when the suit prayers were of different kind. The court ought to have examined closely whether in respect of relief of such nature and having regard to the averments and contentions in the plaint, it had the jurisdiction to deal with and decide the suit or not.

6. In the above view and for the above reasons, the course considered proper by this Court is to remand the First Appeal for deciding afresh by the court of learned Principal Senior Civil Judge, Bharuch. In order that the court of learned Principal Senior Civil Judge, Bharuch is enabled to decide the suit afresh, the impugned judgment and order dated 07th August, 2019 dismissing the Special Civil Suit No.31 of 2014 is hereby set aside.

6.1 The court below shall reconsider the entire case by considering the evidence relevant to the controversy, which may be produced by the parties and arrive at a fresh decision in accordance with law, preferably within four months from the date of receipt of this order.

6.2 While deciding the suit afresh, the court below shall not be influenced by its earlier order, nor shall by any observations in this order in respect of the merits, which are at large before the court to be considered in the fresh decision to be arrived at as above.

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7. The present appeal is partly allowed and disposed of accordingly.

(N.V.ANJARIA, J) ANUP