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2016 DIGILAW 1766 (GUJ)

Dy. Commissioner v. Sumanbhai Jesangbhai Tadvi

2016-08-19

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved by and dissatisfied with the impugned judgment and decree passed by the learned 3rd Senior Civil Judge, Narmada at Rajpipla, passed in Special Civil Suit No. 26/2012, by which, the learned trial Court has decreed the said suit preferred by the respondent herein-original plaintiff and directed the original defendants including the appellant herein to pay Rs. 30,00,000/- to the original plaintiff being today's market price of the land bearing survey No. 7, situated at village Vagadia, Taluka Nandod, District Narmada, admeasuring 6 acres and 22 gunthas of the land, and as per the direction, the original defendants to offer employment to one of the heir of the original land owner being affected person as per the scheme of the Government, the original defendant - Deputy Commissioner, Sardar Sarovar Punar Vasvat Agency, has preferred the present First Appeal. 2. That the respondent No. 1 herein-original plaintiff instituted the aforesaid Special Civil Suit No. 26/2012 in the Court of learned Senior Civil Judge, Narmada at Rajpipla for claiming compensation of Rs. 30,00,000/- for the land bearing survey No. 7, situated at village Vagadia, Taluka Nandod, District Narmada, and also for a mandatory injunction directing the original defendants to offer an employment in the Government Department to one of the heir of the original land owner. It was averred on behalf of the original plaintiff that the father of the plaintiff purchased the aforesaid land in the year 1945 on a sale consideration of Rs. 600/-. That the aforesaid land came to be acquired for the Narmada Project under the provisions of Land Acquisition Act in the year 1978-79. It was further averred that no compensation was paid to them and despite the repeated demands, the compensation for the aforesaid acquired land has not been given. It was the case on behalf of the original plaintiff that the market value of the aforesaid land as on today was Rs. 30,00,000/- and therefore, they are entitled for the same. That after the summons/notices of the suit was served upon the defendants, no written statement was filed on behalf of the original defendants. The original plaintiff has submitted his examination-in-chief on affidavit at Ex.32. However, the right of the defendants to cross-examine the plaintiff was closed. 30,00,000/- and therefore, they are entitled for the same. That after the summons/notices of the suit was served upon the defendants, no written statement was filed on behalf of the original defendants. The original plaintiff has submitted his examination-in-chief on affidavit at Ex.32. However, the right of the defendants to cross-examine the plaintiff was closed. That thereafter, as there was no challenge to the examination-in-chief of the original plaintiff, by impugned judgment and decree, the learned trial Court has decreed the suit and directed the original defendants including the appellant herein to pay Rs. 30,00,000/- to the original plaintiff being the market price as on today of the land acquired for the Narmada Project. That the learned trial court has also further directed the original defendants to provide employment to the heir/heirs of the original plaintiff in the Government department as per the scheme of the Government. 3. Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court, the original defendant No. 1 has preferred the present First Appeal. 4. Mr. H.S. Munshaw learned advocate appearing on behalf of the appellant-original Defendant No. 1 has vehemently submitted that the impugned judgment and decree passed by the learned trial Court is absolutely and wholly without jurisdiction. It is further submitted by Mr. Munshaw that as such the impugned judgment and decree passed by the learned trial Court directing the original defendants, more particularly, appellant herein-original defendant No. 1 to pay to the original plaintiff Rs. 30,00,000/- towards compensation-market price of the land in question, prevailing as on today. 5. It is further submitted by Mr. Munshaw learned advocate on behalf of the appellant-original defendant No. 1 that it may be true that after the defendants appeared before the trial Court, thereafter neither there was any written statement filed on behalf of the defendants nor there was any cross-examination of the examination-in-chief of the original plaintiff. It is submitted that however it was for the plaintiff to prove the case by leading the evidence and thereafter only the trial court could have passed the decree. 6. It is further submitted that as such no evidence whatsoever has been led by the original plaintiff to establish and prove that as such the land was acquired by the appellant herein - original defendant No. 1. 6. It is further submitted that as such no evidence whatsoever has been led by the original plaintiff to establish and prove that as such the land was acquired by the appellant herein - original defendant No. 1. It is submitted that even the award declared under section 11 of the Act was also not placed on record. It is submitted that as such the land in question was acquired by the Narmada Nigam and not by the appellant herein-original defendant No. 1, and that too, prior to 1963, and even the award was declared under section 11 of the Act in the year 1963 and the father of the original plaintiff was already paid the amount of compensation due and payable under section 11 of the Land Acquisition Act. It is submitted that as such the aforesaid has been suppressed by the original plaintiff. 7. It is submitted that in any case, once the land was acquired under the provisions of the Land Acquisition Act, in that case, only remedy available to the aggrieved party for compensation would be a Reference under section 18 of the Land Acquisition Act and the suit for compensation before the Civil Court would not be maintainable. It is submitted that therefore, the impugned judgment and decree passed by the learned trial Court is wholly without jurisdiction. 8. Mr. Munshaw learned advocate appearing on behalf of the appellant-original defendant No. 1 has placed on record the copy of the award declared by the Special Land Acquisition officer under section 11 of the Act, which was, as such declared in the year 1963, a copy of which is given to Mr. Keyur A. Vyas learned advocate appearing on behalf of the respondent No. 1 herein-original plaintiff. Making the above submissions, Mr. Munshaw learned advocate has requested to allow the present appeal and quash and set aside the impugned judgment and decree passed by the learned trial Court. 9. Mr. Keyur A. Vyas learned advocate has appeared on behalf of original plaintiff has tried to support the impugned judgment and decree passed by the learned trial Court. It is submitted that though the defendants were served and appeared through their advocates, but thereafter, they did not contest the suit. No written statement was filed on behalf of the original defendants. Keyur A. Vyas learned advocate has appeared on behalf of original plaintiff has tried to support the impugned judgment and decree passed by the learned trial Court. It is submitted that though the defendants were served and appeared through their advocates, but thereafter, they did not contest the suit. No written statement was filed on behalf of the original defendants. It is submitted that even the right of the defendants to cross-examine the plaintiff was also closed. It is submitted that therefore the deposition of the original plaintiff has remained unchallenged. It is, therefore, submitted that when the deposition of original plaintiff has remained unchallenged, the learned trial Court is justified in passing the impugned judgment and decree directing the defendants to pay Rs. 30,00,000/- to the original plaintiff being the market price of the land which was acquired. It is submitted that even as per the State Government's policy, one of the heir of the land looser is entitled to the employment in the Government. It is submitted that, therefore, the original plaintiff being the heir of the land looser as his father's land was acquired in the Narmada Project, the learned trial Court has not committed any error in directing the original defendants to offer an employment to one of the heir/heirs of the land owner. Making the above submissions, it is requested by Mr. Vyas to dismiss the present appeal. 10. Heard the learned advocates appearing for the respective parties. We have perused the impugned judgment and decree passed by the learned trial Court and we have re-appreciated the entire evidence on record. 11. At the out-set, it is required to be noted that it is not in dispute that as such the land bearing survey No. 7, situated at village Vagadia, Taluka Nandod, District Narmada, came to be acquired prior to 1963 and the possession of which has already been taken over prior to 1963 and even award under section 11 of the Act has been declared in the year 1963. Despite the above and without disclosing the above facts, the original plaintiff instituted the aforesaid suit claiming Rs. 30,00,000/- being the market price of the land in question prevailing as on today and also for a mandatory injunction/direction directing the defendants to provide employment to one of the heir of the land owner. Despite the above and without disclosing the above facts, the original plaintiff instituted the aforesaid suit claiming Rs. 30,00,000/- being the market price of the land in question prevailing as on today and also for a mandatory injunction/direction directing the defendants to provide employment to one of the heir of the land owner. However, it is required to be noted that in the plaint and/or even in the examination-in-chief, the original plaintiff has not disclosed the correct facts that when the land came to be acquired under the provisions of the Land Acquisition Act; when the possession was taken over by the acquiring body and who was acquiring body, nothing has been mentioned. It might be true that the original defendants did not file the written statement. However, as per the catena of decisions of the Hon'ble Supreme Court and this Court, the plaintiff has to stand on his own and has to prove the case by leading cogent evidence. As per catena of decisions of the Hon'ble Supreme Court and this Court, the plaintiff cannot succeed on the weakness of the defendant. In the present case, solely on the basis that the defendants have not challenged the examination-in-chief and/or the suit without any further finding and/or discussing anything, the learned trial Court has passed the impugned judgment and decree which cannot be sustained. The learned trial Judge ought to have appreciated that the plaintiff was as such required to prove his case by leading cogent evidence. It appears that even proper parties were also not joined in the suit. Considering the entire evidence on record which is produced on record, the appellant-herein was not the acquiring body at all. 12. Even otherwise, the impugned judgment and decree passed by the learned trial Court is wholly without jurisdiction. Once the land has been acquired under the provisions of the Land Acquisition Act, for the determination of the compensation, the remedy available to the original land owner is to file Reference under section 18 of the Act, and that too, to be made within the prescribed period of limitation provided under the Land Acquisition Act. As observed hereinabove, in the present case, the award has been declared in the year 1963 and thereafter, the suit has been preferred in the year 2012. Under the circumstances also, the impugned judgment and decree passed by the learned trial Court cannot be sustained. 13. As observed hereinabove, in the present case, the award has been declared in the year 1963 and thereafter, the suit has been preferred in the year 2012. Under the circumstances also, the impugned judgment and decree passed by the learned trial Court cannot be sustained. 13. In view of the reasons stated hereinabove, the present appeal succeeds. The impugned judgment and decree passed by the learned 3rd Senior Civil Judge, Narmada at Rajpipla in Special Civil Suit No. 26/2012 is hereby quashed and set aside. No order as to costs. 14. In view of the disposal of the appeal, Civil Application No. 6896 of 2016 stands disposed of accordingly. Disposed off.