Mangalbhai Salubhai Machhar vs Sufrabhai Salubhai Machhar
2023 Latest Caselaw 576 Guj

     C/SCA/774/2023                             ORDER DATED: 18/01/2023




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 774 of 2023

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                      MANGALBHAI SALUBHAI MACHHAR
                                  Versus
                       SUFRABHAI SALUBHAI MACHHAR
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Appearance:
MR.KARANSINH SOLANKI(6541) for the Petitioner(s) No. 1,2,3,4,5
for the Respondent(s) No. 1,2,3,4,5
MR K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 6
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 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                            Date : 18/01/2023
                              ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. Petitioner who claims to be a co-owner of the property

bearing Survey 118 admeasuring hectare 3-18-69, situated at

Village: Lavana, Taluka: Khanpur, District: Mahisagar, is before

this Court for the following relief:

"25A Your Lordship may be pleased to admit and allow this petition and may be pleased to issue order, direction, writ in the nature of Mandamus and/or Certiorari or any other appropriate writ, order or direction, declaring the petitioners being entitled to proportionate portion of the compensation of land admeasuring Hectare 0.24-62 out of Revenue Survey No.118, as (Annexure-F) awarded by order dated

C/SCA/774/2023 ORDER DATED: 18/01/2023

10/03/2016 passed by Addl. Sr. Civil Judge, Lunawada passed in Land Acquisition Reference No.780 of 2009 and likely to be confirmed / modified as Hon'ble High Court may decide finally in F.A. No.3777 of 2021 pending before this Hon'ble Court."

2. It is an undisputed fact that aforesaid land came to be

acquired based on which the award came to be passed. For

reasons best known to the petitioners, said award reflects the

name of petitioner No.1 along with other names. However, for

reasons best known, petitioners did not seek reference under

Section 18 of the Land Acquisition Act, 1894 (for shot "Act"). On

the other hand, records would disclose that legal heirs of one

Mr. Ranchhodbhai Bhagvanbhai sought for reference under

Section 18 which has been allowed in part by the jurisdictional

Civil Court namely, Additional Senior Civil Judge, Lunawada in

Land Acquisition Reference No.780 of 2009. This award passed

by the reference Court dated 10.3.2016 has been challenged by

the said legal heirs of Mr. Ranchhodbhai Bhagvanbhai in First

Appeal No.3777 of 2021 which is said to be pending before this

Court. When this is the factual scenario, petitioners are said to

have submitted an application under Section 30 on 07.11.2020

before the Deputy Collector, Lunawada seeking reference under

Section 30 of the Land Acquisition Act, 1894. On account of said

C/SCA/774/2023 ORDER DATED: 18/01/2023

application having been preferred and contending that

petitioners' names being reflected in the revenue records as

well as the award, the amount determined as compensation is

payable to petitioner for the land acquired or in other words, it

is contended petitioners would also be entitled for the

compensation and on account of said reference having not been

made, petitioners have approached this Court for payment of

the amount as awarded by the reference Court.

3. When undisputedly petitioners are claiming right over the

land and claiming compensation and having not prosecuted

their claim after filing an application under section 30 of the Act

on 7.11.2020 and having kept quite for two and half years, we

are of the considered view that only remedy which would be

available to the petitioner is either to approach the Court where

First Appeal No.3777 of 2021 is pending or file appropriate suit

before the jurisdictional Civil Court to work out their rights.

Since appeal itself is pending which is continuation of the

original proceedings, petitioners would be at liberty to work out

their right in the pending appeal by filing such application as

may be advised. However, petitioners are apprehending this

C/SCA/774/2023 ORDER DATED: 18/01/2023

Court adjudicating First Appeal No.3777 of 2021 is likely to

confirm or modify the award of the reference. If it is so, it is for

the petitioners to take such steps as they deem fit to challenge

the judgment and award passed in Land Acquisition Reference

Case No.780 of 2009 dated 10.3.2016 in the manner known to

law. On the basis of apprehension which is also without any

basis, petitioners cannot be allowed to circumvent the due

process of law and as such we do not find any good ground or

merit to entertain this petition. Hence, petition stands

dismissed. Consequently, pending applications, if any, stand

consigned to records.

(ARAVIND KUMAR,CJ)

(ASHUTOSH SHASTRI, J) Bharat