Gujarat High Court
Radtiyabhai Salubhai vs Deputy Collector And Special Land ... on 1 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19938 of 2023
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RADTIYABHAI SALUBHAI
Versus
DEPUTY COLLECTOR AND SPECIAL LAND ACQUISITION OFFICER &
ANR.
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Appearance:
MR KM SHETH(838) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MR. DHAVAL V. TRIVEDI, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 01/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. H.S.
Munshaw and learned Assistant Government Pleader Mr.
Dhaval V. Trivedi waive service of notice of rule on behalf of
respective respondents.
2. With the consent of the parties, the matter is taken up
for final hearing.
3. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
"A) This Hon'ble Court be pleased to admit and allow this Special
Civil Application.
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B). This Hon'ble Court may be pleased to quash and set aside the
impugned order passed by the Hon'ble Executing court below Exh.16,
dated 28/08/2023 in Special Execution No 02/2021, at annexure 'A' to
the present petition, by way of issuing suitable writ, order or direction
under Article 227 of the Constitution of India.
C). This Hon'ble Court may be pleased to stay the execution,
implementation and operation of the impugned order passed by the
Hon'ble Executing court below Exh.16, dated 28/08/2023, in Special
Execution No.02/2021, at annexure 'A' to the present petition, by way
of issuing suitable writ, order or direction under Article 227 of the
Constitution of India.
D). This Hon'ble Court may be pleased to direct the reference court,
Chhotaudepur, to allow the petitioner to withdraw the amount of
compensation, deposited by the respondent no.2 in case of L.A.R.
No.1135 of 2017, by way of issuing suitable writ, order or direction
under Article 227 of the Constitution of India.
E). This Hon'ble Court be pleased to grant interim relief in terms of
prayer 12(D), in the interest of justice.
F). This Hon'ble Court be pleased to pass such other and further
order/s as deemed fit, just and proper by this Hon'ble Court."
4. Before proceed with the judgment, I would like to refer
the order dated 14.08.2025 passed by this Court, which reads
as under :-
"1. Heard learned advocate Mr.K.M.Sheth for the petitioner and
learned advocate Mr.H.S. Munshaw for the respondent No.2.
2. After arguing for some time, learned Counsel Mr.H.S. Munshaw
requests this Court to take appropriate instructions from his client. So,
learned Counsel Mr.H.S Munshaw requests for some accommodation.
3. Prima facie, it appears that Respondent Authority having first
secured possession of property in question, which owned by petitioner,
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issued notification under Section 4 followed by further notification
issued as per Section 6 of Land Acquisition Act, 1894. Further, it
appears that Section 11 award was also passed by Collector
concerned, which was ultimately landed before the Reference Court
being LAR No.1135/2017. The Reference Court having heard
respective parties, partly allowed such reference vide its judgment and
decree dated 30.04.2018. As there was non-deposit of decretal
amount, petitioner herein has filed Special Execution Application
No.2/2021 wherein Jangam warrant has been issued whereby,
assurance was given by respondent authority to the Executing Court
through bailiff that once received grant from Government, it will deposit
decretal amount.
4. Thereafter, it appears that instead of depositing such decretal
amount, Respondent Authority has submitted its objection in the
executing proceedings which was filed below Exh.16, which came to
be decided in its favour vide impugned order dated 20.08.2023 passed
by Executing Court. Such impugned order is under challenged before
this Court by way of present application.
5. It is reported to this Court that the decretal amount has already
been deposited before the Executing Court.
6. In light of the aforesaid, a request made by learned Counsel
Mr.H.S. Munshaw is accepted.
7. Stand over to 26.08.2025. To be listed on the top of the board."
5. Today, when the matter was taken up for hearing,
learned advocate Mr. H. S. Munshaw for respondent No.2
would submit that he is not in a position to make a
statement on behalf of respondent No.2- Authority but
requested to this Court to allow him to oppose the present
writ application.
6. The facts which are already referred by this Court vide
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its order dated 14.08.2025, so I would not like to refer it
again in this judgment, having so referred hereinabove.
7. Learned advocate Mr. K. M. Sheth for the petitioner
would submit that the Executing Court has committed gross
error of law by holding that the petitioner would entitle to
receive interest at the rate of 9% from the date of
Notification under Section 4 of Land Acquisition Act, 1894
(hereinafter referred to as the 'Act, 1894') and not from the
date of taking over the possession of land in question
though ordered by the Reference Court.
7.1 Learned advocate Mr. Sheth would further submit that
approach of Executing Court is contrary to the settle legal
position of law, inasmuch as, the petitioner - land looser
would entitled to receive interest at the rate of 9% from the
date of taking over the possession of the land in question by
authority and not from the date of Section 4 Notification
issued as per Act, 1984. He would further submit that when
the Reference Court while passing award clearly observed
that claimant would entitled to receive simple interest at the
rate of 9% from the date of taking over the possession till
one year and thereafter at the rate of 15% per annum till its
realization in view of Section 28 of the Act, 1894, such award
requires to have been executed in its true spirit by the
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Executing Court. It is respectfully submitted that the
Executing Court cannot go beyond the decree/award.
7.2 Learned advocate Mr. Sheth would further submit that
the date of taking over the possession of the land in
question as such not in dispute inasmuch as the award
passed by respondent No.1 under Section 11 of the Act, 1894
clearly referred that possession of the land in question was
taken as per the award dated 24th July, 1978 but at the
relevant point of time, the land looser like petitioner was not
paid compensation. He would further submit that as per
settle legal position of law and as per Order 21 rule 22 to 24
of CPC, when respondent No.2 has not objected and filed
objections at relevant point of time, later in point of time, it
could not have been permitted to file its objection. He would
further submit that as per principle of waiver, res-judicata
and estoppel, objections raised by the respondent No.2
require to be rejected.
7.3 Lastly, learned advocate Mr. Sheth would submit that
when the attachment warrant was issued by the Executing
Court wherein assurance was given by respondent No.2-
Authority to deposit awarded amount which in fact
deposited, requires to be paid to the petitioner.
Nonetheless, learned advocate Mr. Sheth would respectfully
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submit that there are certain short fall in depositing such
amount and petitioner may be permitted to agitate such
issue before the Executing Court as execution is still
pending.
7.4 Learned advocate Mr. Sheth would refer and rely upon
the decision of the Division Bench of this Court dated
07.10.2023 in Special Civil Application No. 5909 of 2023 in the
case of Patel Maheshbhai Atmaram Vs. State of Gujarat
whereby, it has been held that land looser would entitled to
receive interest from the date of taking over the possession
of the land.
7.5 In support of his arguments, learned advocate Mr.
Sheth would also refer and rely upon the following decisions
of the Hon'ble Apex Court and this Court.
(i) Ganchi Laxmichan Ambaram Vs. Tulsidas Madhavdas
reported in 1962 GLR 103 more particularly Para- 10
(ii) Barkat Ali and another Vs. Badrinarain (Dead) by LRs.
Reported in (2008) 4 SCC 615, more particularly Para- 9 to
7.6 Making the above submissions, learned advocate Mr.
Sheth would request this Court to allow the present writ
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application.
8. Per contra, learned advocate Mr. H. S. Munshaw for
respondent No.2 would submit that the objections which are
filed by the respondent No.2 were maintainable in law and
correctly considered by the Executing Court while passing
the impugned order. It is submitted that there is no error
much less any gross error of law committed by the Executing
Court while passing the impugned order, thereby, this Court
may not interfere with such order while exercising its power
under Article 227 of the Constitution of India.
8.1 Learned advocate Mr. Munshaw would further submit
that an approach of Executing Court in the facts of the
present case was appropriate inasmuch as, granted interest
from the date of issuance of notification under Section 4 of
the Act, 1894, cannot be found fault with. It is submitted
that though the possession of the land in question was taken
over from the petitioner in the year 1978, but due to
inadvertence, compensation was not paid to him, for which
Notification came to be issued resulted into the reference
case filed by petitioner, wherein Reference Court has
considered the market value of land prevailing in the year
2007 as Notification under Section 4 of the Act, 1894 was
issued by the authorities in that year. It is respectfully
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submitted that when the market value of the land in
question was considered of the year 2007, the petitioner
would not be entitled to receive interest from the date of
possession on such amount but at best, it can be
compensated from the date of issuance of notification under
Section 4 of the Act, 1894.
8.2 Lastly, learned advocate Mr. Munshaw would further
submit that the Executing Court has all power to decide all
legal questions which germane in the execution and as such
there was no any principle of waiver, estoppel and res-
judicata would apply, inasmuch as when objections were
considered on merit.
8.3 Making the above submission, learned advocate Mr.
Munshaw would request this Court to reject the present writ
application.
9. Learned Assistant Government Pleader Mr. Dhaval V.
Trivedi appearing for respondent No.1 would adopt the
argument so canvassed by the learned advocate Mr.
Munshaw for the respondent No.2.
10. No other and further submissions have been made by
the learned advocates for the respective parties.
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Point for determination.
The short question which falls for my consideration as
under:-
(i) Whether in the facts and circumstances of the case,
Executing Court has committed any gross error of law and or
jurisdiction error while partially allowing the objections so
made by the respondent No.2 herein ?
(ii) Whether in the facts and circumstances of the case, the
Executing Court has committed any jurisdictional error while
holding that land looser/ petitioner would entitled to receive
interest from the date of Notification issued under Section 4
of the Land Acquisition Act, 1894 or not ?
Analysis
11. It is remain undisputed as noted hereinabove, that the
land in question owned by the petitioner was acquired by the
respondent authority in the year 1978. The same can be
confirmed from bare reading of award dated 05.06.2010
passed by respondent No.1 under Section 11 of the Act,
1894. Section 6 of Notification of Act, 1894 issued in the
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matter and its copy submitted before this Court (Annexure-
B) would also indicate that the land in question was already
acquired but compensation was not paid to the some of land
looser including petitioner.
11.1 After passing of the award under Section 11,
petitioner appears to have filed reference case before
Reference Court which was subject of reference case No.
LAR No. 1135 of 2017, partly allowed by the Reference Court
vide its judgment and award dated 30.04.2018, wherein it
was held thus :- (page 76-77)
"The present Land Acquisition references are partly allowed.
The claimants are entitled to get Rs.20/- per Sq. Mtr. as an
additional compensation.
It is hereby further ordered that the claimants are also entitled,
in addition to the market value of the land, to an amount calculated @
12% p.a. on such market value for the period commencing on and
from the date of the publication of the notification u/S.4(1) of the Land
Acquisition Act, in respect of land acquired to the date of the award of
the Collector or the date of taking possession of the land, whichever is
earlier in view of Sec.23(1-A) of the Land Acquisition Act, 1894.
It is hereby further ordered that the claimants are also entitled,
in addition to the market value of the land, to a sum of 30% on such
market value, in consideration of compulsory nature of the acquisition
in view of Sec.23(2) of the Land Acquisition Act, 1894 alongwith
interest.
It is hereby further ordered that the claimants are also entitled
for the simpic interest @9% from the date of taking over the
possession till one year and thereafter, at the rate of 15% p.a. till its
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realization in view of Sec.28 of the Land Acquisition Act, 1894.
Annexure attached herewith this Judgment shall be part of this
Judgment.
The original judgment with attached annexure and original
award shall be kept with the record of the case filed of 1135/2017 and
copy thereof shall be kept in each land references disposed of by this
common judgment.
The opponents shall pay proportionate cost to the claimants and
shall bear cost of their own.
Award to be drawn accordingly."
(emphasis supplied)
11.2 As per the award, the amount was not deposited
then, the execution application came to be filed wherein
notice came to be issued to the respondents who neglected
either to submit their objections or even not deposited any
amount. The officials of respondent No.2 assured to deposit
the award amount when Ballif served notice upon them. It
further appears that Jangam warrant was also issued
wherein also respondent officials assured to deposit
awarded amount once grant received from the Government.
But, it remained undisputed that no such amount was
deposited.
11.3 The reasons best known to respondent No.2, at
relevant point of time, it had not filed any objections,
opposing prayers made in the execution application. It
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appears from the record that such objections came to be
filed for the first time on 06.02.2023 below Exh. 16 which
came to be partially accepted by the Executing Court vide its
impugned order. Once having assured to deposit award
amount, above recourse adopted by respondent No.2 would
not permissible in law as once stage of filing objection got
over, later on, such objections could not have been
entertained by Executing Court.
12. At this state, it would be apt to refer and rely upon the
decision so cited by the learned advocate for the petitioner
in support of his submissions.
12.1 In the case of Ganchi Laxmichan Ambaram (supra)
passed by the Division Bench of this Court (Coram: Hon'ble
Mr. Justice P.N. Bhagwati), his lordship then was, wherein
held thus :-
"10. Having regard to these decisions of, the privy Council and the
Supreme Court, I must refuse to follow the decision of the High Court
of Bombay in 45 Bom LR' 519 L (AIR 1943 Bom 252) (supra) even
though that is a decision of a Division Bench of the Bombay High
Court. 1, therefore, take the view that if the necessary conditions are
satisfied the principle of constructive res judicata applies to execution
proceedings in all cases without any discretion in the Court whether or
not to apply the same having regard to the facts and circumstances of
a particular case. This being the position it is clear that the executing
Court having made the order on the notice under Order XXI, Rule 22,
directing issue of warrant for attachment, it was not open to the
applicant to raise at a subsequent stage of the proceedings any con-
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ditions against the execution of the decree. All the contentions which
the applicant wanted to raise by filing his written statement related to
the execution of the decree and were contentions which might and
ought to have been urged by him in answer to the notice under Order
XXI, Rule 22. These contentions were barred by constructive res
Judicata as a result of the order made by the executing Court on the
notice under Order XXI, Rule 22 and the executing Court was,
therefore, right in rejecting the application of the applicant to raise
these contentions in answer to the execution of the decree."
(emphasis supplied)
12.2 Likewise, in the case of Barkat Ali (supra) wherein also
the Hon'ble Apex Court after analyzing the provisions of
Order 21 rule 22 & 23 of CPC held thus :-
"9. Order XXI Rule 22 CPC culminates in end of one stage before
attachment of the property can take place in furtherance of execution
of decree. The proceedings under Order XXI Rule 23 can only be
taken if the executing Court either finds that after issuing notice, under
Section XXI Rule 21 the judgment-debtor has not raised any objection
or if such objection has been raised, the same has been decided by
the executing Court. Sub rule (1) as well as sub rule (2) under Order
XXI Rule 22, operates simultaneously on the same field. Sub rule (1)
operates when no objection is filed. Then the Court proceeds and
clears the way for going to the next stage of the proceedings namely
attachment of the property and if the Court finds objections on record
then it decides the objections in the first instance and thereafter clears
the way for taking up the matter for attachment of the property if the
objections have been overruled.
10. Whether the order is made under sub rule (1) or sub rule (2), it
has the effect of determining the preliminary stage before the
attachment process is set in motion. In this background, the order of
the Court to proceed with attachment on finding that no objection has
been raised also operates as an order deciding the preliminary stage
of the execution proceedings and operates as if the judgment-debtor
has no objection to file. If thereafter, the judgment-debtor wants to
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raise an objection in the same proceedings in the absence of any
modification of order passed under Order XXI Rule 22 sub rule (1) or
(2), he has to take recourse to get rid of the order by way of appeal.
12. In this background, where a judgment-debtor has an opportunity
to raise an objection which he could have raised but failed to take and
allowed the preliminary stage to come to an end for taking up the
matter to the next stage for attachment of property and sale of the
property under Order XXI Rule 23 which fell within the above principle,
the judgment-debtor thereafter cannot raise such objections
subsequently and revert back to earlier stage of proceedings unless
the order resulting in termination of preliminary stage which amounts
to a decree is appealed against and order is set aside or modified.
13. The principles of res judicata not only apply in respect of
separate proceedings but the general principles also apply at the
subsequent stage of the same proceedings also and the same Court is
precluded to go into that question again which has been decided or
deemed to have been decided by it at an early stage."
(emphasis supplied)
13. Thus, in view of the aforesaid settle legal position of
law, once the judgment debtor received notice in the
execution application, at the first available opportunity, it
requires to submit its objection if any. Once, such stage got
over, at the subsequent stages that too at the time of
issuance of attachment warrant passed by the executing
Court, no such objections could have been allowed to be
adjudicated by the Executing Court. Otherwise, the stages so
mentioned under Order 21 of CPC become otiose.
14. Be that as it may, in present the case, the Executing
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Court examined such objection filed belatedly by the
respondent No.2 at an advance stage of execution
proceedings wherein, attachment warrant was issued by the
Executing Court itself against respondent No.2. It is not clear
from the record that any special permission / order passed
by the Executing Court granting such permission to
respondent No.2 to file such objections or not. Nonetheless,
once such objections have been examined by the Executing
Court whereby passed the impugned order, this Court would
also not like to further deliberate on such issue except to
observe that in light of peculiar facts of the case, such
recourse adopted by the Executing Court was not
appropriate.
15. Now, coming back to the objections of respondent
No.2, it appears to have raised grievance that date of
possession is not established on record, inasmuch as there is
no evidence on record that prior to Notification issued by the
Collector and notice issued under Section 9, the possession
was taken from the petitioner, has not been established on
record thereby, petitioner is not entitled to receive interest
from the date of possession so claimed. Such objection is
contrary to record, inasmuch as Section 6 Notification read
with Section 11, award passed by the Competent Court
under the Act, 1894 would clearly proved on record that way
back in 1978, possession of land in question already taken
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from the petitioner being land looser.
16. The Reference Court has correctly observed in its
award that petitioner would be entitled to receive 9%
interest from the date of taking over the possession of the
land till one year and thereafter at the rate of 15% per
annum till its realization in view of Section 28 of Act, 1894.
17. The issue germen in the matter is no longer remain res-
integra having already decided by the Division Bench of this
Court in the case of Patel Maheshbhai Atmaram (supra),
wherein held thus :-
"5. Taking note of the above submissions, we find that in this case
the petitioners have been deprived of their landed property, their right
to enjoy the land for a period of 14 years, and the determination of
compensation under the award dated 11.11.2022 has been made after
an inordinate delay. The State respondents cannot get away by saying
that they would pay 9% of the current market value as rent as
applicable in those cases where the tenure holders parted away their
lands under agreement.
6. For the forcible dispossession of the petitioners and dereliction
on the part of the State respondents in payment of compensation for a
period of 14 years, they are liable to pay statutory interest as payable
under Section 80 of the Act of 2013, i.e. at the rate of 9% for the
period of 1 year from the date of taking possession and at the rate of
15% after a period of 1 year from the date of taking possession till the
date of payment or deposit of compensation."
18. So far as another submission of learned advocate Mr.
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Munshaw for the respondent No.2 that Reference Court
while passing the award in favour of the petitioner to
consider market price as on date of Section 4 Notification
issued in the year 2007 thereby, petitioner would not entitle
to receive interest from the date of taking over possession,
such aspect was neither raised before the Executing Court
while submitting objections nor challenged by way of regular
Appeal before the Appellate Court. Hence, such submission
is misconceived at facts and law, requires to be rejected.
19. So, the Executing Court could not have travelled
beyond decree/ award whereby egregiously erred in
observing that in absence of date of taking over the
possession of land in question from the petitioner, he would
entitle to receive interest from the date of Section 4
Notification. Such an approach is unknown to law not even
expressly stipulated in the Act, 1894.
20. It is true; this Court should sparingly exercised its
power under Article 227 of the Constitution of India
especially when any order passed by the Court below is
under challenge. But at the same, it is also gainsay that when
any gross error of law or jurisdictional error committed by
the Court below, this Court requires to exercise its
supervisory jurisdiction to keep the Court within its bound.
Having so observed and found aforesaid gross error of law
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and jurisdictional error in the present case, this Court feels it
so to exercise such power in the present case which
otherwise sparingly exercised by this Court [See: Waryam
Singh vs. Amarnath,, reported in AIR 1954 SC 215 (para-13)
& Bhudev Mallick alias Bhudeb Mallick and Another vs.
Ghoshal and Others, reported in 2025 SCC OnLine SC 360
(para 53 to 58)].
21. Thus, in view of aforesaid, the impugned order requires
to be interfered by this Court while exercising its power
under Article 227 of the Constitution of India. Having so
observed hereinabove, that Executing Court has completely
lost sight of the fact as well law inasmuch as it could not
have travelled beyond award, thereby it could not have re-
fixed the date of interest, i.e. instead of date of taking over
the possession of land in question to the date of Section 4
Notification. So, to that extent, committed serious error of
law which resulted into jurisdictional error as well requires to
be corrected by this Court.
Conclusion
22. In view of the foregoing reasons, it is required to be
held that the Executing Court has committed gross error of
law and so also jurisdictional error while partially accepting
the objections so raised by the respondent No.2, inasmuch as
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such objections could not have been entertained at belated
stage, and even otherwise not sustainable in law.
23. The Executing Court has also committed serious error
of law by holding that the petitioner / land looser would
entitled to receive interest from the date of issuance of
Notification under Section 4 of the Act, 1894 instead of date
of taking over possession of the land in question.
24. In light of the foregoing conclusions, the present writ
application requires to be allowed, which is hereby allowed.
Consequently, the impugned order dated 28.08.2023 passed
by the Principal Senior Civil Judge, Chhota Udaipur below
Exh.16 in Special Execution Petition No. 2 of 2021 is hereby
quashed and set. Accordingly, the petitioner is hereby
entitled to receive amount so deposited by the respondents,
lying with the Executing Court with accrued interest if any
thereon. On proper verification and in accordance with law,
Executing Court shall pay such deposited amount with
accrued interest thereon to the petitioner at the earliest.
25. Before parting with, it is also made it clear that if there
is any short fall of awarded amount not appropriately
deposited by the respondent No.2, it is open for the
petitioner to file appropriate application in pending
Execution proceedings in this regard and such application
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shall be decided by the Executing Court in accordance with
law albeit, after giving opportunity to all parties concern.
26. In the view of the aforesaid, the present writ
application is allowed to the aforesaid extent. Rule is made
absolute accordingly. No order as to cost.
(MAULIK J.SHELAT,J)
SALIM/
