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2009 DIGILAW 705 (GUJ)

Himatbhai Manabhai Rathod v. State of Gujarat

2009-11-06

K.M.THAKER, M.S.SHAH

body2009
Judgment Mohit S. Shah, J.—Rule. Mr. Pranav Dave, learned AGP for Respondent Nos. 1 to 3 and Mr. VC Vaghela for Respondent Nos. 4 and 5 waive service of rule. 2. In this petition under Article 226 of the Constitution, the petitioners, two in number, have challenged the order dated 1.7.2009 (Annexure-F) of Respondent No. 2 - Deputy Collector and Land Acquisition Officer, Ankleshwar rejecting the petitioners’ application under Section 30 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’). 3. The lands belonging to Respondent Nos. 4 and 5 came to be acquired by the State by notification under Section 4 issued in the year 2006. The acquired lands were land bearing survey No. 59 admeasuring 0.03 are, survey No. 270/1 admeasuring 1 Hector 55 Are and also land bearing revenue survey No. 199 admeasuring 0.93 are all in village Vadadala, Taluka Vyara, District Bharuch. The petitioners’ case is that the petitioners were also co-owners of the acquired lands and they were entitled to receive compensation for their share. The petitioners had accordingly made application for apportionment under Section 30 of the Act, but the Land Acquisition Officer rejected the same on the ground that Regular Civil Suit No. 231 of 2004 raising the controversy about the petitioners’ share in the lands in question was dismissed by the Civil Court. Mr. Majmudar, learned advocate for the petitioners states that Regular Civil Suit No. 231 of 2004 is still pending before the Court of learned Senior Civil Judge, Bharuch and that therefore, the Land Acquisition Officer erred in rejecting the petitioners’ application under Section 30 of the Act. 4. In response to the notice, affidavit in reply has been filed by Respondent No. 4 opposing the petition and submitting that Respondent No. 4 is the widow of Jesang Mavla and that Jesang Mavla became owner of the lands in question in the year 1935 and that upon death of Jesang Mavla on 9.11.1970, Respondent No. 4, who is the widow of Jesang Mavla, became owner of the lands in question and that revenue entry No. 1137 to that effect mutating the land in favour of Respondent No. 4 was also made on 6.9.1972 and was certified on 4.4.1973. It is further the case of Respondent Nos. It is further the case of Respondent Nos. 4 and 5 that Respondent No. 4 being aged required care and attention, which she did not receive from the present petitioners who are her nephews and that Respondent No. 5 was taking her care and therefore, Respondent No. 4 adopted Respondent No. 5 by a registered adoption deed dated 29.10.2002. It is submitted that the petitioners had never claimed any share in the lands in question from 1970 onwards and that such belated claim is not required to be entertained. It is also submitted by Mr. Vaghela, learned Advocate for Respondent Nos. 4 and 5 that the petitioners had prayed for interim injunction in Regular Civil Suit No. 231 of 2004, but that application came to be dismissed by a speaking order dated 7.4.2006 and therefore also, no relief deserves to be granted to the petitioners. 5. In rejoinder, Mr. Majmudar submits that the interim injunction application dated 13.7.2004 was for staying operation of the mutation entry in the revenue record. At that point of time, the lands in question were not acquired, therefore, there was no question of the petitioners seeking any interim relief against disbursement of compensation to Respondent Nos. 4 and 5. 6. Having heard the learned advocates for the parties, we find that the basis of the impugned order of the Land Acquisition Officer that the Civil Suit has been dismissed is not well founded. What was dismissed by the Civil Court was only the application for interim injunction and not the suit itself. The controversy about the petitioners’ share in the lands in question which is the subject matter of the present petition, is also the subject matter of Regular Civil Suit No. 231 of 2004. The Court is informed that Respondent No. 4 has already been paid compensation for the lands bearing survey Nos. 59 and 270/1 and that it is only the compensation for survey No. 199 which is lying with the Land Acquisition Officer on account of ad-interim injunction granted by this Court on 23.7.2009. 7. In the facts and circumstances of the case and having regard to the fact that Respondent No. 4 has already received the compensation amounts for the lands bearing survey Nos. 7. In the facts and circumstances of the case and having regard to the fact that Respondent No. 4 has already received the compensation amounts for the lands bearing survey Nos. 59 and 270/1 and that the compensation for land bearing survey No. 199 is lying with the Land Acquisition Officer, we are of the view that the interests of justice would be served if one-third of the amount of compensation of survey No. 199 in Village Vadadala of Bharuch District is invested in a fixed deposit, under the cumulative interest scheme, for a period of three years in the name of Registrar / Nazir of the Court of learned Senior Civil Judge, Bharuch. The investment shall continue in the said fixed deposit till disposal of Regular Civil Suit No. 231 of 2004 and shall abide by the final outcome of the said suit. The balance two-third amount of the compensation for survey No. 199 shall be permitted to be withdrawn by Respondent Nos. 4 and 5 by account payee cheques. 8. Rule is made absolute to the above extent only with a further direction to the Court of the learned Senior Civil Judge, Bharuch to try and decide Regular Civil Suit No. 231 of 2009 as expeditiously as possible. It is clarified that we have not gone into the merits of the controversy raised between the parties and the above order, which is only a workable arrangement to operate during pendency of the Civil Suit, shall not be treated as expression of any opinion on merits of the controversy in Regular Civil Suit No. 231 of 2009.