Ramjibhai Motilal vs Deputy Collector And Special Land ...
2023 Latest Caselaw 1334 Guj

    C/FA/4438/2022                                 ORDER DATED: 08/02/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 4438 of 2022

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                   RAMJIBHAI MOTILAL
                         Versus
DEPUTY COLLECTOR AND SPECIAL LAND ACQUISITION OFFICER AND
               REHABILITATION IRRIGATION
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Appearance:
MR KRUSHNAKANT D PATEL(10632) for the Appellant(s) No. 1
MR TEJAS P SATTA(3149) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR AKASH CHHAYA, AGP for Respondent State
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                             Date : 08/02/2023

                              ORAL ORDER

1. Heard learned Advocate Mr.Tejas P. Satta for the appellant and learned AGP Mr.Akash Chhaya for the respondent State.

2. Admit. Learned AGP Mr.Chhaya waives service of notice of admission on behalf of the respondent-State.

3. By way of this appeal, the appellant challenges the judgment and award passed by the learned 10 th Additional Senior Civil Judge & ACJM, Jamnagar dated 5.5.2018 in Land Acquisition Reference Case No.528 of 2006, more particularly on the ground that the learned Reference Court had dismissed challenge to the award in question on the ground that the appellant, though adequate opportunity was given, had not led any evidence against the findings of the award.

C/FA/4438/2022 ORDER DATED: 08/02/2023

4. Learned Advocate Mr.Satta relied upon decision of this Court dated 11.01.2023 in First Appeal No.4435 of 2022, whereby this Court, relying upon decisions of the learned coordinate Benches, had allowed the appeal under similar circumstances, more particularly this Court inter alia having observed that even in case if the appellant-claimant did not lead any evidence, it was always open for the learned Reference Court to have taken an independent decision by relying upon documentary evidence, including award in question as well as other comparable sale instances of surrounding lands, earlier awards etc. passed with regard to lands in the near vicinity and come to an appropriate conclusion. It appears that this Court, after having observed as thus, had set aside the impugned judgment and order and had remanded the matter back to the learned Reference Court for fresh consideration and whereas to balance the equities, it was inter alia directed that in case if any enhancement is made by the learned Reference Court in the award impugned then the appellant would not be entitled to claim interest over such enhanced amount from the date of the order of the learned Reference Court, impugned before this Court, till date.

4.1. Learned Advocate Mr.Satta would further submit that in cognate matters i.e. First Appeals No.4174, 4176 and 4177 of 2022, the very same impugned judgement and order had been challenged, and whereas a learned Coordinate Bench of this Court, vide an order dated 19.10.2022 had set aside the said decision insofar as the LAR cases impugned in the said appeals were concerned and the Land Reference Court was directed to decide the Reference Cases expeditiously. Learned Advocate Mr.Satta for the appellant would request this Court that similar order may be passed in the present appeal.

C/FA/4438/2022 ORDER DATED: 08/02/2023

4.2. Learned Advocate Mr.Satta would submit that the appellant is also ready and willing to abide by such condition and whereas the appellant would forego his right to claim interest from the date of the judgment and order impugned in the present First Appeal till date.

5. In this view of the matter and having regard to the law laid down by this Court in decision dated 11.01.2023 referred to herein above, while the present First Appeal deserves to be allowed, the equities are also required to be balanced as noted herein above. Furthermore, relevant observations of this Court in the earlier decision dated 11.01.2023 are also required to be stated herein below. Hence, paragraph Nos.7, 8 and 9 of the earlier decision are quoted herein below for benefit:-

"7. Considering the aforesaid decisions of the learned Co-ordinate Benches, it appears that the learned Co-ordinate Benches have taken a view that the Competent Court, after the material which may be placed on the record by the claimant or the acquisition authorities, could decide whether the land owner was entitled to adequate compensation and whereas the learned Co-ordinate Benches had also observed that while the case would be required to be remanded back, but at the same time the claimant would not be entitled to interest from the date of the impugned judgment till the date of passing of the order by this Court.

8. Having regard to such view taken by the learned Co-ordinate Benches, and whereas the same being binding on this Court, therefore the impugned judgment and award deserves to be interfered with, more particularly since in the considered opinion of this Court, the Competent Court i.e. the Reference Court ought not to have rejected the Reference Case merely on the ground that the land owner did not lead any evidence and whereas it was open for the Competent Court to have taken an independent decision by relying upon the necessary documents including the award in question as well as other comparable sale instances of surrounding lands, earlier awards etc. passed with regard to lands in the near vicinity.

9. In this view of the matter, the judgment and award dated 10.08.2018 passed by the learned 3rd Additional Senior Civil Judge,

C/FA/4438/2022 ORDER DATED: 08/02/2023

Jamnagar, in Land Acquisition Reference Case No. 124 of 2004, is hereby quashed and set aside. Furthermore, since it is clear that the appellant herself did not lead any evidence before the learned Reference Court, therefore it is directed that if the Reference Court makes any enhancement in the award amount, then the appellant would not be entitled to any interest for the period from the date of the impugned decision of the Reference Court till today i.e. from 10.08.2018 to 11.01.2023."

6. Having regard to the observations made by this Court in order dated 11.01.2023 and in view of the discussion herein above, the impugned judgment and order passed by the learned 10 th Additional Senior Civil Judge & ACJM, Jamnagar dated 5.5.2018 in Land Acquisition Reference Case No.528 of 2006 is hereby set aside. The learned Reference Court shall hear and decide Land Acquisition Reference Case No.528 of 2006 and whereas the appellant herein original claimant shall lead evidence documentary as well as oral and shall further co-operate with the learned Reference Court for expeditious hearing and decision in the Reference Case concerned. Furthermore, learned Reference Court is also directed to hear and decide the Reference Case upon remand on merits within a period of six months from the date of receipt of the present order, to clarify learned Reference Court shall decide Reference Cases by 01.09.2023.

7. It is clarified that the appellant shall not be entitled to claim any interest from the date of decision of the Reference Court, impugned in the present First Appeal till date.

8. With the above observations and directions, the present appeal stands disposed of as partly allowed.

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL