Devkuben Tapubhai vs State Of Gujarat
2023 Latest Caselaw 2123 Guj

       C/FA/316/2023                                 ORDER DATED: 07/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 316 of 2023
==========================================================
                            DEVKUBEN TAPUBHAI
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR NITIN M AMIN(126) for the Appellant(s) No. 1,2,3,4,4.1,4.2,4.3
MR SANJAY M AMIN(130) for the Appellant(s) No. 1,2,3,4,4.1,4.2,4.3
MS KRUSHITA DAVE, ASSISTANT GOVERNMENT PLEADER for the
Defendant(s) No. 1
NOTICE NOT RECD BACK for the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 07/03/2023
                               ORAL ORDER

1. Heard learned Advocate Mr. Nitin M. Amin on behalf of the

appellants and learned AGP Ms. Krushita Dave for the respondent-State.

2. Issue rule returnable forthwith. Learned AGP Ms. Dave waives

service of rule on behalf of the respondent-State.

3. With consent of the parties, the present first appeal is taken up for

final decision.

4. By way of this appeal, the appellants seek to assail judgment and

order dated 02.12.2022 passed by the learned 8th Additional Senior Civil

C/FA/316/2023 ORDER DATED: 07/03/2023

Judge, Bhavnagar in Land Reference Case No. 34 of 1989, more

particularly, whereby learned Reference Court has dismissed the

reference application preferred by the appellants herein.

5. It would appear that as far as the appellants are concerned, the

present is the second round of litigation, more particularly, it appears that

originally vide an order dated 14.12.2017 the first appeal had been

dismissed, more particularly, on account of the fact that the appellants

could not join themselves as legal heirs of the original claimant in spite of

order permitting the same since the papers of the reference case had been

tagged along, by mistake, with another reference case.

6. Be that as it may, vide an order dated 30.09.2022, a learned Co-

ordinate Bench of this Court, Coram: Justice A. S. Supehia J., had

quashed and set aside the impugned judgment dated 14.12.2017 inter alia

after holding that the claimants shall not be entitled to interest on

enhanced compensation if any and whereas, learned Co-ordinate Bench

had remanded the matter back to the learned Reference Court to decide

the same as expeditiously as possible but not later than 31.12.2022.

7. It would appear that the Writ of this Court, more particularly, with

C/FA/316/2023 ORDER DATED: 07/03/2023

regard to order dated 30.09.2022 had been received by the learned

Reference Court on the 14.11.2022 and whereas thereafter, the Court had

fixed 4 dates i.e. on 19.11.2022, 21.11.2022, 25.11.2022 and 29.11.2022.

It appears that since the learned Advocate for the present appellants,

could not remain present on the 4 dates, the learned reference Court, more

particularly, since the learned Court was of the opinion that the reference

case had to be decided as per the direction of this Court, had dismissed

the reference itself.

8. Learned Advocates for the parties have made various submissions

and whereas, since this Court is considering setting aside of the impugned

decision and remanding the matter back to the learned Reference Court,

therefore, all such submissions, as are necessary for deciding the present

appeal have been dealt with by this Court herein below.

9. It would appear that the learned Reference Court, was felt

pressurized on account of the direction of this Court of directing to decide

the reference on or before the 31.12.2022. In the considered opinion of

this Court, while it is undoubtedly true that all the Courts subordinate to

this Court are required to follow, comply and carry out the directions

issued by this Court but at the same time, directions issued cannot be read

C/FA/316/2023 ORDER DATED: 07/03/2023

out of the context in which they have been passed. This Court in order

dated 30.09.2022 had directed expeditious hearing, more particularly,

considering the fact that the reference itself is of the year 1989. In this

regard it also requires to be mentioned that the direction of this Court to

decide the reference by the 31.12.2022, had been received by the learned

Court itself as late as on 14.11.2022. Thus, while the learned Court ought

to have made an endevour to finally decide the land Reference before

31.12.2022 and in case, if the learned Reference Court could not decide

the same then appropriate application for extension of time ought to have

been filed that the fact of the writ being received by learned Reference

Court approximately after one and half months of order dated 30.09.2022,

was a reasonable and justifiable ground for the learned Reference Court

to have sought for extension of time.

10. This Court also at this stage, seeks to reiterate that reference cases

under the Land Acquisition Act i.e. either under the old act or under the

new act, are beneficial proceedings, more particularly, whereby

Reference Court, has the benefit of the entire material with regard to the

acquisition proceedings before itself and whereas, as directed by this

Court time and again, even in absence of the claimant or advocates for the

claimants, it would be open for the Reference Court to have considered

C/FA/316/2023 ORDER DATED: 07/03/2023

the material on record and decide the reference cases.

11. In the instant case, by adjourning the cases consequently i.e. from

19 to 21 to 25 to 29 of November, 2022, it could be stated that adequate

opportunity, had not been granted by the Reference Court to the present

appellants. Again as noted herein above, if the learned Reference Court

was concerned about meeting with the time limit as directed by this

Court, then it was open for the Reference Court to have decided the

reference proceedings, on basis of the material and evidence which were

already there on record. Just with a view to comply with the direction of

this Court if the reference is dismissed without deciding on merits, in the

considered opinion of this Court, would not be sufficient comply.

12. Considering the above, while the present first appeal requires

interference, appropriate directions are also required to be issued to the

Court concerned to decide the reference proceedings expeditiously albeit

after giving adequate opportunity and in accordance with law.

13. In view of the discussion, observations and conclusions as herein

above, the following directions are passed.

[1] Impugned judgment and order dated 02.12.2022 in LAR No. 34

C/FA/316/2023 ORDER DATED: 07/03/2023

of 1989, passed by the learned 8th Additional Senior Civil Judge,

Bhavnagar is hereby quashed and set aside.

[2] The learned Reference Court is directed to decide the reference

case being LAR No. 34 of 1989, within a period of 3 months from

the date of receipt of writ of order of this Court.

[3] It is clarified that in view of setting aside of the present order

miscellaneous orders whereby stage of leading evidence having

been closed etc., shall be treated as having been set aside by this

Court.

[4] The learned Reference Court shall pass appropriate orders after

giving adequate opportunity to both the sides of leading evidence.

[5] It is further clarified that in case of non-co-operation of any of

the parties, it would be open of the learned Reference Court to pass

judgment on the merits based upon the material/ evidence which is

on record.

14. With these observations and directions the present first appeal

stands disposed of as allowed.

(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia