IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6528 of 2010 For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= THAKOR BALDEVJI SONAJI - Petitioner(s) Versus SPECIAL LAND ACQUISITION OFFICER & 2 - Respondent(s) ========================================================= Appearance :
MR MB PARIKH for Petitioner(s) : 1,1.2.1 Mr. DHARMESH C GURJAR AGP for Respondent(s) : 1 MR AJAY R MEHTA for Respondent(s) : 2, MR JIGAR G GADHAVI for Respondent(s) : 3, ========================================================= CORAM :
HONOURABLE MS JUSTICE SONIA GOKANI 11th April 2012 ORAL JUDGMENT With the consent of the learned advocates for the parties, this matter has been heard finally.
Challenge is made in this petition to the order of the learned 2nd Addl. Sr. Civil Judge, Mehsana dated 19th May 2010 passed in L.A.R No. 4037 of 2003 by which the learned Judge rejected the objection application filed by the present petitioner for not disbursing payment deposited by the respondents herein to Shri Thakor Kuberji Pratapji – one of the joint owners of the property bearing Survey No. 1081 admeasuring 0-64-25 H.R.Sqm., which was acquired by ONGC and against which reference was preferred by the present petitioners and others. The possession of the joint property was taken over by making panchnama, taking signatures of the present petitioners and others, and in the year 1994 the land was acquired permanently by issuance of Notification under Section 4 of the Land Acquisition Act [“Act” for short]. Thereafter, Award was made under Section 11 (1) of the Act on 29th September 1997.
It is the say of the petitioners that the land bearing Survey No. 1081 was acquired and the compensation of the same was paid. The present petitioner is the son of deceased- Thakore Menaben Sonaji, who passed away on 1st November 2006. He being heir of one of the joint owners, on having realized that the award was passed in LAR Case No. 4037 of 2003 filed by the respondent no.3 herein viz., Thakore Kuberji Pratapji, an application was moved in this LAR No. 4037 of 2003 before the learned Principal Sr. Civil Judge inter alia urging not to disburse the amount of compensation granted to the petitioner-respondent no.3 herein. The court, after bipartite hearing filed such an application and further directed to make payment to the parties as directed in LAR No. 4037 of 2003.
Learned advocate for the petitioner pointed out by various documentary evidences that the petitioner is the son of deceased Thakor Menaben Sonaji. It is the say of the learned advocate that in the amount awarded by the Court, names of all the joint owners are reflected, and therefore, entire amount cannot be handed over to the respondent no.3 by the ONGC and this Court requires to interfere with the order impugned.
Learned advocate Shri Jigar Gadhvi appearing for the respondent no.3 urges that the Reference Court can decide the aspect of compensation, however, for getting the share decided, appropriate proceedings shall have to be resorted to by the petitioner by preferring a Civil Suit, for which he has sought to rely upon the decision of this Court rendered in case of MANUBHAI JERAMBHAI DALWADI Versus SPECIAL LAND ACQUISITION OFFICER & 1 [Special Civil Application No. 11141 of 2009]. In this decision in that matter before the Court in the Reference had enhanced compensation by passing award and the Land Acquisition Officer had deposited the amount, however, at the time of disbursement, application was made by one of the respondents resisting such disbursement to the petitioner herein and had claimed his share. The Division Bench was of the opinion that the jurisdiction of the Reference Court is to decide the aspect of compensation and that also would not mean that the reference court has no incidental power of deciding the claim, if the dispute is raised amongst more than one claimant but such powers could be of summary nature and for any right, title or interest of the parties of the property, appropriate forum would be Civil Court.
In the instant case, it is the say of the petitioner that 60 RA & 50 Sq.m belongs to the deceased mother of the petitioner and to the share of respondent no.3 only 03 RA & 75 sq.m. comes. It is an admitted fact that the mother of the petitioner had not challenged compensation initially. She had not challenged it and for the reasons not known on the record, subsequently also in the proceedings, she has not been impleaded as party. However, the fact is not in dispute that in a matter which was challenged by the respondent no.3 herein before the Land Reference Court, eventually compensation has been awarded to all the owners of the land jointly.
It is further say of the petitioner that the petitioner is the only son of Thakor Sonaji Juhaji and mother-Menaben Sonaji.
Heard learned AGP Mr. Dharmesh C. Gurjar for the respondent no.1 and learned advocate Shri Ajay Mehta for the respondent no.2 – ONGC. They ensured to abide by the directions of this Court as the amount has already been deposited in the trial Court.
Considering the submissions of all the sides and also keeping in view the law on the subject, the order impugned requires interference. The Reference Court has not accepted the objection of the petitioner herein in complete disregard to the fact that the mother and father of the petitioner are clearly shown as the joint owners of the property. There are, in all six persons who are being named as the joint owners and the amount of compensation which has been deposited with the trial Court is Rs. 6,22,633/=. In the documents produced before this Court, all these names are reflected who were found entitled to compensation and in such circumstances permitting the respondent no.3 to take the total amount, defeating the rights of others cannot be permitted.
Learned advocates also fairly submitted that they had made utmost attempts to bring amicable end to the dispute amongst heirs, however, as the same is not feasible, following the Division Bench's verdict, the parties shall have to be relegated to the recourse available with them in getting their share determined by the Civil Court by the competent court.
Accordingly, this petition succeeds with the following directions :-
[a] Order dated 19th May 2010 passed by the learned 2nd Addl. Sr. Civil Judge, Mehsana in L.A.R No. 4037 of 2003 is hereby quashed.
[b] Petitioner shall take recourse to the appropriate remedy of getting his share determined by the competent Court.
[c] Petitioner shall file such a suit within three months from the date of receipt of this order, failing which, the respondent no.3 shall be entitled to move the Court of learned Sr. Civil Judge, Mehsana for getting the amount of compensation.
[d] If any such suit is filed by the petitioner within stipulated period; considering the peculiar nature of the controversy, the trial Court may expeditiously try the same.
[E] Till the outcome of the civil suit; as may be preferred by the petitioner, the amount of compensation deposited by the respondent-ONGC shall be invested in a nationalized bank initially for a period of six months, and the same shall be renewed periodically. This direction shall continue and the period of fixed deposit initially shall be of two years; subject to its being renewed from time to time.
With these directions, petition stands allowed. Rule is made absolute with no order as to costs.
{Ms. Sonia Gokani, J.} Prakash*