Gujarat High Court

Dhirubhai Dhanjibhai Vasava vs State Of Gujarat on 20 January, 2025

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                            C/SCA/8788/2024                                      JUDGMENT DATED: 20/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                  R/SPECIAL CIVIL APPLICATION NO. 8788 of 2024
                                                      With
                         CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2024
                                 In R/SPECIAL CIVIL APPLICATION NO. 8788 of 2024

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE MAULIK J.SHELAT
                        ==========================================================

                                   Approved for Reporting                       Yes           No

                       ==========================================================
                                                 DHIRUBHAI DHANJIBHAI VASAVA
                                                            Versus
                                                   STATE OF GUJARAT & ORS.
                       ==========================================================
                       Appearance:
                       JAGATSINH L VASAVA(7888) for the Petitioner(s) No. 1
                       DECEASED LITIGANT for the Respondent(s) No. 7
                       MR AKASH CHHAYA, AGP for the Respondent(s) No. 1,2,3
                       MR ARPIT A KAPADIA(3974) for the Respondent(s) No. 4
                       RULE SERVED for the Respondent(s) No. 5,6,7.1,7.2,7.3,7.4,8,9
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 20/01/2025

                                                            ORAL JUDGMENT

1. The present petition is filed under Article 227 of the

Constitution of India seeking the following reliefs:

"(A) That your Lordship be pleased to admit and allow this Petition.

(B) That the Lower Court of Mandvi Civil Court Surat District Grossly Violated Section3 (H) (4) of The National Highways Act-1956 where the Lower Court had no Jurisdiction to pass Judgment or any order as per the aforesaid provision, therefore the Judgment/order passed

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in CMA/11/2011 dated 29/04/2024/30/04/2024 be quashed and set aside and the matter be remanded to the District & Session Judge, Surat for adjudication under The provisions of the National Highways Act-1956. (C) Deleted (D) Pending disposal of this petition, This Honble Court may stay the impugned Judgment of CMA/11/2024 dated 29/04/30/04/2024, passed by the Principal Senior Civil Judge, Mandvi, District Surat.

(E) For such other and further reliefs as the Hon'ble Court may deem just and proper in the facts and circumstances of the case and in the interest of justice;"

2. Heard learned advocate Mr. Jagatsinh L. Vasava for the

petitioner, learned advocate Mr. Arpit A. Kapadia for

respondent no.1 and learned AGP Mr. Akash Chhaya for

respondent nos. 2 to 4.

3. Learned advocate for the petitioner would submit that

learned Principal Sr. Civil Judge, Mandvi, Surat, who has

decided Civil Miscellaneous Application No. 11 of 2022 vide its

impugned judgment and order dated 29-30/4/2024, is having

no jurisdiction to decide the application filed under Section

3(H)(4) of the National Highways Act, 1956 (hereinafter

referred to as "the Act, 1956").

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3.1 He would submit that as per Section 3(H)(4) of the Act,

1956, the learned Principal Civil Court is the competent court

to hear and decide the application. He would further submit

that as per Section 19 of the Civil Courts Act, 1977

(hereinafter referred to as "the Act, 1977"), the District Court

shall be deemed to be the Principal Civil Court of original

jurisdiction in the District.

3.2 He would further submit that the impugned judgment

and order passed by the Principal Senior Civil Judge is without

jurisdiction, and when the court lacks inherent jurisdiction,

this court requires to entertain the present petition under

Article 227 of the Constitution of India. To buttress his

arguments, he would rely upon Section 19 of the Act, 1977, as

well as a decision rendered by the Honourable Supreme Court

in the case of Vinod Kumar vs. District Magistrate, Mau

reported in AIR 2023 SC 3337.

3.3 Making the above submissions, he would request this

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court to quash and set aside the impugned judgment and order

challenged in the present petition, thereby allowing the present

petition.

4. Per contra, learned advocate Mr. Kapadia, appearing for

respondent no.1 would submit that petitioner has participated

in the proceedings before the Principal Civil Judge Court Surat,

who had conducted Civil Miscellaneous Application no. 11 of

2022 filed at the instance of respondent no. 2 under Section

3(H)(4) of the Act, 1956 and at this stage, petitioners cannot

be allowed to question the judgment and authority by filing a

present petition.

4.1 Nonetheless, when learned advocate Mr. Kapadia was

apprised about Section 19 of the Act, 1977, vis-à-vis the

provision of Section 3(H)(4) of the Act, 1956, as an officer of

the court, he candidly accepted the fact that in view of the

aforesaid provisions of law, the impugned application, i.e.

Civil Misc. Application No. 11 of 2022, requires to be

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adjudicated by the District Court, Surat and not by the

Principal Senior Civil Judge, Mandvi at Surat.

4.2 So, learned advocate Mr. Kapadia would request this

court that, in view of the aforesaid factual situation and the

provisions of law prevailing as on date, if this court quash and

set aside the impugned order passed by the learned Principal

Senior Civil Judge, Mandvi at Surat, then an appropriate

direction may be issued by this court to the trial court to

forward complete records of Civil Misc. Application No. 11 of

2022 to the District Court Surat, which is competent to decide

the impugned application filed under Section 3(H)(4) of the

Act, 1956, within a stipulated time. He also requested that the

District Court may be advised to decide afresh the impugned

application in accordance with the law by giving an

opportunity of hearing to the respective parties.

5. Learned AGP Mr. Chhaya would not be in a position to

dispute the aforesaid facts and the position of law. Learned

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AGP would submit that due to an inadvertent mistake on the

part of respondent no. 2, the impugned application was

inadvertently wrongly filed before the Senior Civil Judge Court,

Mandvi at Surat instead of the District Court Surat. Hence, he

would request this court to pass an appropriate order in the

matter. Thereby, the interests of all the concerned may be

taken care of, and a fresh order can be passed by the

competent court, who has jurisdiction to decide the issue

between the parties.

No other or further submissions are made.

6. The short controversy which centers around the present

case is as to whether the Principal Senior Civil Judge, Mandvi,

District: Surat is competent to decide Civil Misc. Application

No. 11 of 2022 filed by respondent no. 2 under Section 3(H)(4)

of the Act, 1956?

6.1 If such a court does not have jurisdiction to decide the

impugned application, then which court has jurisdiction to

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decide such application?

7. Before, appreciating the arguments canvassed by learned

advocates for the respective parties, I would like to refer to

the following provisions of law: Section 3(H)(4) of the Act,

1956;

"3H.Deposit and payment of amount :-

(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated."

Section 19 of the Act, 1977 "19. District Court tobe principal Civil Court of original jurisdiction. - The Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction in the district."

7.1 The plain reading of said provisions of law makes

position of law very clear that any application filed under

Section 3(H)(4) of the Act, 1956 is required to be decided by

the Principal Civil Court concerned. In view of Section 19 of

the Act, 1977, the District Court shall be deemed to be the

Principal Civil Court. If it be so, the impugned application

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ought to have been preferred before the District Court and not

before the Principal Senior Civil Court, Mandvi at Surat. It is

required to be noted here that no other definition of Principal

Civil Court given under the Act, 1956.

7.2 Thus, I am of the view that the Principal Senior Civil

Judge Mandvi is not a Principal Civil Court. The impugned

order passed by such a court is without jurisdiction, as that

court lacks inherent jurisdiction to decide such an application

as per the provisions of the Act, 1956.

7.3 Thus, in view of the aforesaid provisions of law, when

the impugned judgment and orders passed by an incompetent

court, which lacks inherent jurisdiction may be inadvertently,

such an order is required to be interfered with by this court

under Article 227 of the Constitution of India. There is no such

bar under any law, thereby in a situation like present, this

Court cannot exercise it's jurisdiction / power under Article

227 of the Constitution of India.

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7.4 Hence, in view of the above, the impugned judgment and

order dated 29-30/04/2022 passed by the learned Principal

Senior Civil Judge, Mandvi at Surat in Civil Miscellaneous

Application number 11 of 2022 is required tobe quashed and

set aside, which I do so.

7.5 Having so observed that the Principal Senior Civil Judge

Mandvi is incompetent to decide the impugned application,

then, as observed herein-above, as per Section 19 of the Act,

1977, the District Court Surat would be the competent court to

decide the dispute between the parties, including the impugned

application filed under Section 3(H)(4) of the Act, 1956.

8. At this stage, just to save time and to facilitate the

parties to get early justice, as an exception, this court would

like to pass the following order:

8.1 The impugned judgment and order dated 29-30/04/2022

passed by the learned Principal Senior Civil Judge Mandvi

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below Exhibit 31 in Civil Miscellaneous Application No. 11 of

2022 is hereby quashed and set aside.

8.2 The Principal Senior Civil Judge, Mandvi, District: Surat

is requested to send the entire record of Civil Misc. Application

No. 11 of 2022, which was disposed of by it, to the District

Court, Surat within a period of 15 days from the date of

receipt of this order.

8.3 Once the District Court Surat receives the entire record,

the same may be assigned a new number, and the application

shall be decided afresh by issuing notice to the respective

parties to the application, including respondent no. 2 herein

i.e. the Competent Authority and Special Land Acquisition

Officer, Surat.

8.4 This exercise may be completed within a period of 4

weeks by the District Court, and if so required, all parties may

be intimated about the next date of hearing through RPAD.

8.5 After service of notice upon the parties, the District Court

is hereby requested to give reasonable opportunity of hearing

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to the parties, including permitting the parties to submit any

documents which they are relying upon. They may be heard,

and the application filed under Section 3(H)(4) of the Act,

1956, shall be adjudicated in accordance with the law,

preferably within 4 months from the service of notice of

application to all parties.

9. It goes without saying that the District Court Surat will

hear and adjudicate the application on its own merits without

being influenced by any observations made by the court of the

Principal Senior Civil Judge, Mandvi at Surat or by this court

while deciding the present petition.

9.1 It is further made clear that this court has neither

examined nor gone into the merits of the matter.

9.2 As a word of caution, this Court would like to request

learned Assistant Government Pleader to inform concern

authority who in future requires to file such application under

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Section 3(H)(4) of the Act, 1956 to see that such application be

filed before the District Court concern. So, such type of

mistake can be avoided.

10. In view of the foregoing reasons, the present petition