Dhansukh Jivabhai vs State Of Gujarat
2023 Latest Caselaw 587 Guj

     C/FA/4436/2022                                     ORDER DATED: 19/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 4436 of 2022
                                    With
                       R/FIRST APPEAL NO. 4437 of 2022

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                                DHANSUKH JIVABHAI
                                      Versus
                                STATE OF GUJARAT
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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
MR AKASH CHHAYA, AGP for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                  Date : 19/01/2023

                                   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 2 n d Additional

Senior Civil Judge, Jamnagar dated 30.06.2018 in Land

Acquisition Reference Case Nos.2 of 2004 and 3 of 2004, more

particularly on the ground that the learned Reference Court had

dismissed challenge to the award in question on the ground that

C/FA/4436/2022 ORDER DATED: 19/01/2023

the appellants, though adequate opportunity was given, had not led

any evidence against the findings of the award.

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 appellants 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.

5. Learned Advocate Mr.Satta would submit that the

C/FA/4436/2022 ORDER DATED: 19/01/2023

appellants are also ready and willing to abide by such condition and

whereas the appellants would forego their right to claim interest

from the date of the judgment and order impugned in the present

First Appeals till date.

6. In this view of the matter and having regard to the law

laid down by this Court in decision dated 11.01.2023 refereed to

hereinabove, while the present First Appeals deserve to be allowed,

the equities are also required to be balanced as noted hereinabove.

Furthermore, relevant observations of this Court in the earlier

decision dated 11.01.2023 are also required to be stated

hereinbelow. Hence, para Nos.7, 8 and 9 of the earlier decision are

quoted hereinbelow 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.

       C/FA/4436/2022                                            ORDER DATED: 19/01/2023




               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, 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."

7. Having regard to the observations made by this Court

in order dated 11.01.2023 and in view of the discussion

C/FA/4436/2022 ORDER DATED: 19/01/2023

hereinabove, the impugned judgment and order passed by the

learned 2 n d Additional Senior Civil Judge, Jamnagar dated

30.06.2018 in Land Acquisition Reference Case Nos.2 of 2004

and 3 of 2004 is hereby set aside. The learned Reference Court

shall hear and decide Land Acquisition Reference Case Nos.2 and 3

of 2004 and whereas the appellants herein original claimants

shall lead evidence documentary as well as oral and shall

further co-operate with the learned Reference Court for

expeditious hearing a n d d e c i s i o n i n t h e of the Reference

Cases concerned. Furthermore, learned Reference Court is also

directed to hear and decide the Reference Cases 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 01.08.2023.

8. It is clarified that the appellants shall not be entitled to

claim any interest from the date of decision of the Reference Court,

impugned in the present First Appeals, till date.

9. With the above observations and directions, the present

appeals stand disposed of as partly allowed.

(NIKHIL S. KARIEL,J) SHITOLE