Gujarat High Court
Parsottambhai Shankarbhai Thakor ... vs Baroda Electric Meters on 8 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 2 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SECOND APPEAL NO. 2 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PARSOTTAMBHAI SHANKARBHAI THAKOR HIMSELF AS WELL AS
KARTA OF HUF
Versus
BARODA ELECTRIC METERS
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Appearance:
D H BHARWAD(7394) for the Appellant(s) No. 1
MR. D. P. KINARIWALA(410) for the Appellant(s) No. 1
PARTY IN PERSON(5000) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/01/2024
ORAL JUDGMENT
1. The Second Appeal challenges the
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judgment dated 26.09.2022 passed by 5th Additional
District Judge, Anand in Regular Civil Appeal
No.202 of 2019 confirming the judgment dated
05.09.2019 passed by 3rd Additional Civil Judge,
Anand in Regular Civil Suit No.180 of 2009.
2. Learned advocate Mr.D.P. Kinariwala
along with Advocate Mr.D.H. Bharwad for the
appellant submitted that both the Courts have
failed to take into consideration the admission
of the defendant that on the western side of the
land, there are Eucalyptus trees, and specific
pleading of the appellant - plaintiff before the
trial Court, that the land is in possession of
the appellant. Mr. Kinariwala submitted that both
the courts have erred in dismissing the suit, in
spite of the fact that by Exhibit-73, the witness
had deposed that the land acquired by G.I.D.C. is
Survey No.383/1/A of Shankarbhai Galbabhai
Thakor, and both the courts have erred in
interpreting the evidence, Exh.83, which is Deed
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of Exchange, which says that GIDC had agreed to
convey to the defendant the land mentioned in the
second schedule of the agreement, and the said
schedule does not bear the reference of Survey
No.384.
2.1 Advocate Mr. Kinariwala referring to the
judgment of Sidi Muslim Jamat Bilali Vs. Kasamsha
Hajisha Sotiayara, reported in 2009 3 GLR 2260,
submitted that the trial Court Judge has
committed grave error by passing an order against
the plaintiff to hand over the peaceful
possession of the land within 30 days of the
order. Advocate Mr. Kinariwala submitted that
there was no counter claim filed by the
defendant, and without any specific prayer for
possession, no such order could be passed, as the
defendant was required to file counter claim as
provided under Order 8 Rule 6A of the Code of
Civil Procedure. Mr. Kinariwala submitted that
the observation has been made by the appellate
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Court that other side is a party-in-person and he
is defending his case on his own, so the
appellate court Judge noted that there was lacuna
in procedural aspect.
3. The facts of the case, as could be
mentioned, are required to be noted that the
Officer on Special Duty (Land Acquisition) had
the occasion to grant a consent award under
section 11(2) of the Land Acquisition Act, 1894
(For short 'the Act'). The land, as was noted in
the consent award, was for public purpose viz.
for the establishment of industrial township by
Gujarat Industrial Development Corporation.
Certain lands of village Karamsad, Anand and
Mogri known as Vitthal Udyognagar have been
declared for acquisition. The consent award was
passed pertaining to Survey No.383/1/A and of
Survey No.384/part of village Karamsad, Taluka
Anand, District Kaira.
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3.1 The land Survey No.384 was notified
under section 4 of the Act, under Revenue and
Industries department Notification
No.LKI.2763/6282-K dated 26th July, 1963,
published in Government Gazette dated 01.08.1963
at page 2210. After completing the procedure laid
down under section 5A, the survey numbers were
notified under section 6 of the Act with
notification No.AM:1760:MLKI:2763 99779(ii)k-1
dated 26.10.1964, published on 29.10.1964. The
consent award notes that consequent upon the High
Court decision in Special Civil Application
No.903 of 1964 etc., it was cancelled.
3.2 The award notes that the Government in
Industries, Mines and Power Department sanctioned
the government contribution of Rs.1,000/- as per
Resolution No.IND.1668/9421-D, dated 10.01.1969,
and thereafter the government in Revenue
Department has issued a fresh Notification No.AM-
184-M/LAH/2763/4293 L.A.II dated 18.01.1969
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published in Gujarat Government extra ordinary
Gazette dated 19.01.1969 at pages 74 to 76.
Notices under section 9-10 of Land Acquisition
Act have been issued, at the date and place noted
as Mamlatdar's office Anand, Panchayat office
Karamsad and near the land, dated 12.11.1970 and
20.11.1970. As per the consent award, Survey
No.383/1/A and Survey No.384/part admeasuring 0-
Hector, 89-Acres, 03 sqm. was acquired of village
karamsad Taluka Anand. The compensation was paid
to Shankarbhai Galbabhai Thakor, in connection to
Survey No.384/Part.
4. Dr. V.N. Kamat, Managing Director, of
Baroda Electric Meters Ltd., submitted that Land
Acquisition Officer (OSD/Collector) is a
necessary party to the suit proceedings, since
the matter relates to land acquisition under Land
Acquisition Act, 1894. Mr. Kamat submitted that
GIDC also becomes a necessary party, as the Deed
of Exchange (Exh.83) was singed by Baroda
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Electric Meters Ltd. with GIDC, where the legal
position of the disputed land is recognized by
the document signed between GIDC and the
respondent Baroda Electric Meters Ltd.
4.1 Mr. Kamat submitted that during the
course of judicial process, as injunction was
granted under Exh.5 of the suit, the appellant
abused the process of law and built a permanent,
brick and mortar structure / dwelling between the
period 26.04.2010 to 12.01.2012. Massive
permanent damage and loss has been caused to the
Company, even when, the learned appellate Court
in M.C.A. No.60/2010 on 12.01.2012 had quashed
the injunction observing it to be illegal,
capricious, erroneous and against the principles
of law.
4.2 Mr. Kamat submitted that the appellant
had not removed the encroachment. The panchnama
submitted to the trial Court on 31.05.2009
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(Exh.17/2) after notice issued on 28.05.2009
(Exh.17), is the proof to the fact that Survey
No.384-south land, was in physical possession of
the Baroda Electric Meters Ltd., and that there
was no encroachment of hut or dwellings of the
appellant. The panchnama (Exh.17) clearly showed
the remnants of the bill board/hoardings, which
belonged to the respondent and destroyed by the
appellant. Mr. Kamat submitted that the appellant
had hidden the fact of C.R.A. No.412/1996 on
11.03.1996 on the same subject matter, which came
to be rejected on 02.02.1998. Mr. Kamat submitted
that all members of the family had filed the
suit, and, thus, present is hit by doctrine of
res judicata.
4.3 Advocate Mr. Kamat referring to the fact
of the case submits that the appellant had failed
to show that disputed parcel of land, where he
was a tiller/tenant before the acquisition under
Land Acquisition Act, 1894, was acquired under a
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consent award under section 11(2) of the Act by
the Officer on Special Duty. (OSD), Land
Acquisition, Case No.OSD/LAQ/KRA-1(20), dated
21.03.1975, that was signed by Shankarbhai Patel,
who had paid compensation and given alternate
land.
4.4 Mr. Kamat submitted that the appellant
had not disclosed that he was monetarily
compensated for the second time for the same
piece of land in the year 2001, as per the
settlement pursis in Regular Civil Suit
No.525/1994 (Exh.82), that was filed by Baroda
Electric Meters Ltd. against the appellant, which
resulted in a settlement.
4.5 Mr. Kamat further stated that the
appellant had filed Regular Civil Suit
No.382/1990, R.C.S. 235/1995, R.C.S.108/2007 and
R.C.S.180/2009. Mr. Kamat submitted that each of
the former cases were rejected and disposed off,
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and the appellant had not appealed against any of
them.
4.6 Mr. Kamat stated that the appellant had
applied for temporary injunction in R.C.S.
No.382/1990, and even before the appellate Court
in R.C.A. No.202/2019, but both came to be
rejected, and the temporary injunction which was
granted by the trial Court in R.C.S. No.180/2009
was quashed by the District Court in M.C.A.
No.60/10 (Exh.38). Mr. Kamat further stated that
the suit of the plaintiff was barred by
limitation since was filed after the notification
of acquisition for the GIDC. Mr. Kamat, submitted
that R.C.S. No.180/2009, should not have been
allowed when the matter has already been decided
between the same two parties in the earlier suit
being R.C.S. 235/1995 (Exh.69), where no appeal
has been taken in the higher court.
4.7 Mr. Kamat further submitted that
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ignoring the Deed of Exchange between the Baroda
Electric Meters Ltd. and GIDC, which is a valid
registered legal document transferring the legal
right of the property to Baroda Electric Meters
Ltd., which shows that the property was
transferred free of any liens, the appellant
unnecessarily has created hurdles by filing
suits, which is a repeated desperate failed
attempts by appellant to claim Survey No.384-
south land, that originally belonged to
Chandubhai Patel, who was self-cultivator and
owner. The panchnama in R.C.S. No.180/2009 dated
31.05.2009, Mr. Kamat submitted, proves that
Survey No.384-South land is in possession of the
Baroda Electric Meters Ltd., and there was no
encroachment or huts reflected in the panchnama
drawn during that trial.
4.8 Mr. Kamat submitted that orders have
been passed under Land Acquisition Act, which is
acquired by the GIDC and Baroda Electric Meters
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Ltd., has been in possession of the land by way
of Deed of Exchange. Mr. Kamat submitted that
corporate tax have been paid by Baroda Electric
Meters Ltd. and all other necessary fees have
already been paid by the Baroda Electric Meters
Ltd.
5. The dispute, now sought to be raised, is
about the land admeasuring 1 Acre of Survey
No.384 of village Karamsad, Taluka and District
Anand. The present appeal is in connection to
suit of the plaintiff filed as Regular Civil Suit
No.180 of 2009 before the learned Civil Judge,
Anand for declaration and for permanent
injunction to declare him as an owner of the said
land, with another relief prayed for, of
permanent injunction.
6. The Regular Civil Suit No.180 of 2009
was filed by Parsottambhai Shankarbhai Thakor on
his own behalf and on behalf of the joint family
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against Baroda Electric Meters Ltd. with the
pleading that 1 Acre of land i.e. 0.80.84
H.Are.sqm. of Survey No.384, was in the
possession of the plaintiff, as tenant. The
original owner showed no income of less than
Rs.1500, so under the certificate of no income, 1
Acre on the eastern side was ordered to be given
to the land owner, and it is stated by the
plaintiff that the said land was taken by GIDC.
The land on the western side remained in
possession of the plaintiff as tenant, wherein
Mango Trees are still in existence. The sale
price of the land along with Mango Trees were
decided by the Tenancy Court, which was paid by
them and a certificate under Form-9 was issued.
It was stated by the plaintiff that the land is
new tenure land restricted under section 43 of
the Tenancy Act. The said land was running in the
name of the plaintiff in the revenue records.
6.1 It was pleaded by the plaintiff that the
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certain lands were exchanged by Baroda Electric
Meters Ltd. with GIDC. The plaintiff had urged
that GIDC was holding the land of only 1 Acre,
instead 2 Acres of land was exchanged to Baroda
Electric Meters Ltd. and a Change Entry No.27669
was mutated. As the same came to the notice of
the plaintiffs, they had filed their objections.
The matter was conducted before the Mamlatdar
Court. Against that, an appeal was filed, which
was ordered to be remanded as RTS Remand Case
No.50/92, and the objection of the plaintiff came
to be allowed and the said Change Entry came to
be rejected. Against that, Baroda Electric Meters
Ltd. had filed an RTS Appeal No.115/2007 before
the Deputy Collector, which was rejected on
31.03.2009. It was also stated that defendant had
sold his share of northern side of the land
falling on Anand Sojitra Road to 3rd party
admeasuring One Acre, while the southern part
land on the eastern side remained with the
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plaintiff, wherein they have the residential hut
and Nilgiri crops.
6.2 The issues framed by the trial Court are
as under:
1. Whether the plaintiff proves
that out of total 2 Acre 0 Gunthas
of disputed property in R.S. No.384
he solely owns and posses 1 Acre and
0 Gunthas towards Athamni (Now
Dakshini)?
2. Whether the plaintiff proves
that Athamni that is west of the
Anand Sojitra road is now dakshini
that is south of the disputed
property?
3. Whether the defendant proves
that they receive the 2 Acre and 0
Gunthas of land in R.S. No.384,
Karamsad in exchange from the GIDC?
4. Whether the plaintiff proves
that he is entitled for the relief
claimed for?
5. What order and Decree?"
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6.3 The suit of the plaintiff came to be
rejected by the trial Court with direction to
hand over the peaceful possession of the land
within 30 days. The plaintiff had filed an
appeal, which also came to be rejected.
7. The Deed of Exchange dated 26.12.1989
was between Gujarat Industrial Development
Corporation and M/s. Baroda Electric Meters,
wherein it was observed that GIDC was seized of
and in possession of parcels of land or ground at
village Karamsad in registration of sub-district
Anand, District Kheda, admeasuring in aggregate
about 26,674-9 Sq. mtrs., bearing revenue survey
nos.384, 386/1P, 386/2P, 386/3A +3B/P, 769/1+2/P,
which was described in the first schedule and the
total acquisition cost of the land was noted as
Rs.62,040.
7.1 In the said agreement, the land which
was in the possession of Baroda Electric Meters
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Ltd., with the same measurement of 26,674.09 sq.
was given in exchange bearing Revenue Survey
No.767/1+2+3,768 described in second schedule.
7.2 The GIDC and Baroda Electric Meters
Ltd., mutually agreed to exchange the respective
plots of land described in first and second
schedule. GIDC agreed to convey to Baroda
Electric Meters Ltd., the said land by way of
exchange, and in furtherance of the agreement
dated 18.09.1973, on direction by the GIDC,
Baroda Electric Meters Ltd. had handed over the
physical possession of the land bearing Survey
No.767/1+2+3/P,768 admeasuring in aggregate
26,674-09 sq. mtrs. In furtherance of the
agreement, the GIDC had handed to Baroda Electric
Meters Ltd., physical possession of the said land
bearing Survey Nos.384, 386/1P, 386/2P,
386/3A+3B/P, 769/1+2 of village Karamsad
admeasuring 26,674-09 sq. Mtrs. The possession
receipt dated 18.06.1986 issued by GIDC refers to
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Survey No.384 as 2 Acres of land. GIDC had given
the possession of 2 Acres of Survey No.384 to
Baroda Electric Meters Ltd., along with the above
referred land.
7.3 The land in the possession of the GIDC
was handed over to Baroda Electric Meters Ltd.
The whole Survey No.384 has been referred, and by
the document of exchange the possession of the
Survey No.384 came in the hands of Baroda
Electric Meters Ltd.
8. The short facts related to two Acres
land of Survey No.384, reflects that originally
the land belonged to Shri Chandubhai Chhotabhai
Patel, who gave it to Shri Shankarbhai Galbabhai
Thakor, the father of the plaintiff of RCA
No.202/2019 i.e. Parsottambhai Shankarbhai
Thakor. Later on the basis of certificate of low
income, which was less than Rs.1,500/-, One Acre
of land was returned back to the original owner
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Chandubhai Chhotabhai Patel, which was half of
the land of Survey No.384. The Revenue and
Industries Department, Government of Gujarat
issued notification on 26.07.1963 and published
the same in Gujarat Government Gazette dated
October 29, 1964 as per the Land Acquisition Act,
1964 for Two Acres of Survey No.384. The land of
Survey No.384 lies to the south of Anand-Cambay
Railway line. On the east is Survey No.383 and on
the west is Survey No.385. The land in question
being Survey No.384, 2 Acres i.e. area of 0.80.84
H.Are.Sqm., was split into two equal parts of 1,
Acre by Anand Sojitra Road that cuts through it,
delineating the property in area of 0.40.47
H.Are.Sqm. each.
8.1 Before acquisition, the land of northern
part of the road belonged to Shankarbhai
Galababhai i.e. father of Parsottambhai
Shankarbhai Thakor, and the land on southern part
was of the original owner Chandubhai Chhotabhai
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Patel.
8.2 The Officer on Special Duty appointed
under sub-section (c) of section 3 of the Land
Acquisition Act, was empowered under section 7 to
pass order for acquisition of the entire Survey
No.384. The Officer on Special Duty on 17.06.1970
took the possession of One Acre of the land,
which was on the northern part of the road from
the father of the plaintiff, Shankarbhai
Galbabhai Thakor, who gave consent for
acquisition as per clause 9 and in return as per
Rules of the GIDC Shankarbhai Galbabhai Thakor
was allotted two Gunthas of land in Plot No.17 of
GIDC Estate on 24.09.1974 for building his hut,
which Shankarbhai Galbabhai Thakor, the father of
the plaintiff, readily accepted. Since he had
given his consent, a consent award was drawn
which came to be issued on 21.03.1971, and the
possession of the land was taken on the same day
under consent.
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8.3 While Chandubhai Chhotabhai Patel,
original owner of the land resisted the
acquisition. Thereafter, later on, in Regular
Civil Suit No.525/1994 filed by Baroda Electric
Meters Ltd. under settlement pursis, the dispute
was resolved having observed that under the
acquisition proceedings of GIDC, Vitthal
Udyognagar, on the notification of 23.01.1969,
the Land Acquisition Officer in pursuance to the
proceeding on 14.09.1971 took the possession of
the land from the power of attorney holder of
original land owner Chandubhai Chhotabhai Patel.
The power of attorney Rajivbhai Chhotabhai Patel
executed possession receipt in favour of the Land
Acquisition Officer and in that process, the land
on the Southern side of the Road of Survey No.384
was handed over to the Acquisition Officer.
8.4 The settlement pursis of the parties in
Civil Suit No.525/94 clarifies that Survey No.384
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in the hands of Chandubhai Chhotabhai was on
southern side of Anand Sojitra Highway Road. The
revenue proceedings were withdrawn. The document
of Exchange was referred and it was agreed upon
that the total land, which was acquired by the
GIDC was entrusted to the plaintiff Baroda
Electric Meters Ltd., and in view of the
settlement on 01.12.2001, it was noted that the
power of attorney has handed over the possession.
Under the settlement, it was acknowledged that
the compensation of the land was paid to them on
24.11.2001, and, thus the contested defendant had
no right, title on the land in question. The
settlement was only noted for the northern area
of Survey No.384; with further clarification that
the said settlement does not affect the southern
side of the land. The settlement purshis
acknowledges 3570 sqm. of northern land sold to
Kiranbhai Praful Patel by way of registered
agreement of sale and possession handed over to
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him, for the remaining land of 2153 sqm. and 1417
sqm. Sale deed were executed. 1417 sqm. of land
belongs to Vasantbhai Dhanabhai Iyer. Further
noting that defendant has no right, title,
interest or share-part on the land the civil and
revenue proceedings were decided to be withdrawn
with clarification to ratify the entry in favour
of GIDC and Baroda Electric meters and consenting
for entries in favour of purchasers.
8.5 It is to be noted that the father of
the plaintiff had already surrendered the
possession of the land and in exchange had taken
2 Gunthas of land in Plot No.17 of GIDC on
24.09.1974. The settlement arrived at in Civil
Suit No.525/94, was also signed by Parsottambhai
Shankarbhai Thakor on 01.12.2001.
8.6 Baroda Electric Meters Ltd. was handed
over the possession of whole of the land by way
of Deed of Exchange on 26.12.1989, and under
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settlement, the dispute was resolved, and under
the Deed of Exchange of 26.12.1989, the
possession of the plaintiff Baroda Electric
Meters Ltd. was approved, further observing that
power of attorney Rajivbhai Chhotabhai Patel has
handed over the possession on behalf of
Chandubhai Chhotabhai. In view of settlement in
Civil Suit No.525/94, the present appellant as
plaintiff had no cause to file Regular Civil Suit
No.180/2009.
8.7 From the facts and acquisition
proceeding, it can be noted that 2 Acres of land
of Survey No.384 was already acquired under Land
Acquisition Act for GIDC, and the possession of
the land was taken by the Officer on Special
Duty. The father of plaintiff of Regular Civil
Suit No.180/2009 i.e. Shankarbhai had already
assented to the acquisition and inturn had
accepted the property of 2 Gunthas of land in
Plot No.17 of GIDC Estate in accordance to the
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Rules of GIDC. There was no dispute to the
acquisition, but since Chandubhai Chhotabhai
Patel had raised the dispute, the litigation
proceeded.
8.8 Hence, in view of the settlement which
has been noted in Civil Suit No.525/1994, the
disputed land of southern side of Anand Sojitra
Road was already handed over by the power of
attorney of Chandubhai Chhotabhai i.e. Ravjibhai
Chhotabhai on 14.09.1971, and land acquisition
officer had executed a receipt, while the dispute
raised by Parsottambhai Shankarbhai Thakor, in
the impugned suit R.C.S. No.180/2009 further
carried in R.C.A. No.202 of 2019, had been
resolved in Civil Suit No.525 of 1994 for the
land, whereupon Parsottambhai Shankarbhai Thakor
and his family had created encroachment.
9. In view of this fact, the suit being
Regular Civil Suit No.180 of 2009 by
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Parsottambhai Shankarbhai Thakor is merely a
hindrance. The settlement pursis, Exh.216 in the
case of Regular Civil Suit No.525/1994, was
submitted by Baroda Electric Meters in the trial
Court as Exh.82, and there was no reason for
Parsottambhai Shankarbhai Thakor and his family
members to raise any dispute.
10. Learned advocate Mr. Kinariwala
submitted that without any counter claim, no
order could be passed by the trial Court to hand
over the possession to the defendants.
10.1 It is required to be noted that the
possession of the disputed land was already
handed over by father of Parsottambhai
Shankarbhai Thakor i.e. Shankarbhai Galabhai, who
in exchange had received Two Gunthas of land in
Plot No.17 of GIDC Estate. In spite of that,
again a dispute was raised, which came to be
settled in Regular Civil Suit No.525/1994. Again
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by raising Regular Civil Suit No.180/2009,
Parsottambhai Shankarbhai Thakor had tried to
create hindrance on the land.
11. The Court had rightly observed that
already the possession was with the Acquisition
Officer, which was handed over to GIDC; in spite
of that Parsottambhai Shankarbhai Thakor had
continuously created obstruction on the land and
Baroda Electric Meters Ltd., by due process of
law agitated to remove the obstruction of the
encroachment, and even had proved the case in
Regular Civil Suit No.180/2009, which came to be
confirmed by the appellate Court in Regular Civil
Appeal No.202 of 2019.
12. This Court does not find any ground to
raise any substantial question of law, even
further in view of the concurrent findings of
trial court and first appellate Court, the
direction of handing over of the possession of
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suit land by removing the encroachment be
followed forthwith.
13. In view of the above observations, the
present appeal stands dismissed. Civil
Application stands disposed of accordingly.
Record and Proceeding be sent back to the
concerned Court.
(GITA GOPI,J)
Pankaj
