(Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) With the consent of the learned advocates, this petition is heard and decided today.
The present petition under Article 226 of the Constitution arises from the Order dated 12th September 2008 made by the learned Special Judge [Land Acquisition], Ahmedabad (Rural) below Application Exhs. 158 & 166 in Land Acquisition Reference No. 883 of 1989.
The petitioners and the respondents are the heirs in Class-I of one Shankerbhai Chaturbhai Patel [hereinafter referred to as, the said Shankerbhai ]. The said Shankerbhai owned land Block No. 715, admeasuring 11921 sq.m. situated at Aslali. By Notification dated 12th February 1986 issued under Section 4 of the Land Acquisition Act, 1894 [hereinafter referred to as, the Act ], the said land Block No. 715 has been acquired for establishment of a Transport Nagar by the Ahmedabad Urban Development Authority. By Award dated 12th May 1988, declared under Section 11 of the Act, the Land Acquisition Officer offered compensation @ Rs. 9/= per sq.m. The resultant compensation in the sum of around Rs. 2,90,000/= was received by the said Shankerbhai. Compensation in the sum of Rs. 1,00,000/= for bore, pipeline, electricity connection, etc., was also received by the said Shankerbhai. Pending the reference made under Section 18 of the Act, the said Shankerbhai passed away. The respondents nos. 1 to 3 were joined in the Reference as the heirs and legal representatives of the said Shankerbhai. Under order made by the Hon'ble Supreme Court, a sum of Rs. 12,09,832/= was paid on 23rd March 2001. The said sum, we are told, has been distributed amongst the heirs of the said Shankerbhai and that there is no dispute about the said sum of Rs. 12,09,832/=.
The dispute in the present petition is in connection with Rs. 24,44,094/- awarded by the District Court, Ahmedabad [Rural] on 19th July 2005. The petitioners, the daughter, and the son of the deceased daughter of the said Shankerbhai have made a grievance that the entire sum of Rs. 24,00,000/= plus has been received by the respondent no.1-one of the sons and that the petitioners are deprived of their legitimate share in the said amount of compensation.
In answer to the notice issued by the Court, the learned advocates Mr. V.B Patel and Mr. A.J Patel have appeared for the respondent no.1 and nos. 2 & 3 respectively. Mr. A.J Patel has submitted that the aforesaid land Block No. 715 was the ancestral property in the hands of the said Shankerbhai. The said Shankerbhai passed away intestate in the year 1998. According to the then prevalent Hindu Succession Act, on passing away of the said Shankerbhai and in view of the intestacy of the said Shankerbhai, his properties would be deemed to have been partitioned a day prior to his death. Thus, the said Shankerbhai, his wife and his two sons had an equal share in the said land Block No. 715. On passing away of the said Shankerbhai, his share would devolve upon his wife and children equally i.e., from one-fourth share of the said Shankerbhai, his wife Kamlaben, two sons, two daughters and the son of the deceased daughter each will have equal one-sixth share. The widow and the sons, each is entitled to a sum of Rs. 7,12,860/= and each daughter and the son of the deceased daughter is entitled to a sum of Rs. 1,01,837/= out of the aforesaid sum of Rs. 24,44,094/=. Mr. Patel has further submitted that still a claim for Rs. 76,84,812/= is pending in the Court in an execution proceeding. The said sum of Rs. 76,84,812/= also, when received, should be distributed amongst the heirs of the said Shankerbhai in the aforesaid proportion. However, Mr. V.B Patel and Mr. A.J Patel have, on behalf of the respondent no.1 and the respondent nos. 2 & 3, agreed that out of the aforesaid sum of Rs.24,44,094/=, the daughters and the son of the deceased daughter each be paid a sum of Rs. 2,00,000/=.
From the record, we find that Kamlaben, widow of the said Shankerbhai had, on 9th October 2007, filed a purshis before the learned Civil Judge Sr. Division, Ahmedabad [Rural] in the Land Acquisition Reference No. 883/1989. As stated in the said purshis, the aforesaid sum of Rs. 12,09,832/= was received by the sons the respondent nos. 1 & 2 Bhupendrabhai Shankerbhai Patel & Rameshbhai Shankerbhai Patel in equal proportion. The respondent no.2-Ramesh Shankerbhai Patel, out of the amount received by him, gave the mother her share. However, Bhupendrabhai did not give the share of the mother.
It further transpires that the respondent no.1 Bhupendrabhai Shankerbhai Patel has instituted Regular Civil Suit No. 787 of 2008 in the Court of learned Principal Senior Civil Judge, Ahmedabad [Rural]. It is the case of the said Bhupendrabhai that the lands of the said Shankerbhai was partitioned in his life time. The land block No. 715 came to the share of the son Bhupendrabhai and the wife Kamlaben. He has prayed for a declaration that the aforesaid land Block No. 715 is the property of the said Bhupendrabhai and the widow Kamlaben and that the other children of the said Shankerbhai have no right, title or interest in the land Block No. 715; that he and his mother widow of the said Shankerbhai alone have a right to receive compensation for the said land Block No. 715 awarded by the Special Court in Land Acquisition Reference No. 883 of 1989.
In view of the above controversies; with the consent of the learned advocates, we make the order as under :-
The sum of Rs. 24,44,094/= deposited in the Court below will be appropriated as under :-
The daughters Kokilaben Shankerbhai Patel and Kanchanben Shankerbhai Patel, and Manav-son of the deceased daughter-Virbalaben; each will be paid Rs. 2,00,000/=. The sons Bhupendrabhai Shankerbhai Patel and Rameshbhai Shankerbhai Patel each will be paid a sum of Rs. 6,00,000/=. The remaining amount and the interest earned, if any, will be paid to Kamlaben Shankerbhai Patel-the widow of the deceased Shankerbhai Chaturbhai Patel.
We clarify that this order is made with the consensus of the learned advocates by way of an interim arrangement, on assumption that the land block no. 715 was the ancestral property; that the deceased Shankerbhai Chaturbhai Patel died intestate and that there is no dispute in respect of Rs. 12,09,832/= received in the year 2001. This order does not decide the question of inheritance. If necessary, the parties will be at liberty to take out appropriate proceeding for settlement of the question of inheritance. This order or anything said in this order will not preclude the respondent no.1 Bhupendrabhai Shankerbhai from pursuing the Civil Suit No. 787 of 2008 instituted by him.
The payments made under this Order will be subject to any order made by a court of competent jurisdiction in the subject matter.
The petition stands disposed of in the above terms.
Registry will issue the writ forthwith.
{Ms.
R.M Doshit, J.} {K.M Thaker, J.} Prakash* Top