LPA/947/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 947 of 2008 IN SPECIAL CIVIL APPLICATION NO.20703 OF 2007 WITH CIVIL APPLICATION NO. 10537 OF 2008 AND CIVIL APPLICATION NO. 10538 OF 2008 ====================================== DHARMENDRA JAMNADAS SHAH & 1 - Appellant(s) Versus PREMLATABEN WD/O DECD. MAHENDRAKUMAR DESAI & ORS. - Respondent(s) ====================================== Appearance : MR NILESH PANDYA with MR TUSHAR N VYAS for Appellant(s) : 1 - 2. MR P.M. THAKKAR, SR. COUNSEL with NAVIN PAHWA for Resp. No.5. MR. DHAVAL BAROT FOR Respondent No.1/1 to 1/8. MR. K.T. DAVE, ASSISTANT GOVERNMENT PLEADER for Resp. 2-4 ====================================== CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR. JUSTICE MOHIT S. SHAH Date : 10/09/2008 C.A.V JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN) This Letters Patent Appeal has been preferred challenging order dated 27th August, 2007, passed by the learned Single Judge of this Court, in Special Civil Application No. 20703 of 2007, by which order, the learned Single Judge of this Court has directed the Special Land Acquisition Officer to make an award indicating the apportionment of the compensation observing that the petitioners therein are entitled to receive 18.10% of the total compensation that may be awarded under the land acquisition proceedings in respect of the lands in question. LPA/947/2008 2/4 JUDGMENT 2. Special Civil Application No. 20703 of 2007 was preferred by one Mahendrakumar Parshottambhai Desai (who later died and his legal heirs, respondents Nos. 1/1 to 1/8 have been impleaded), seeking declaration that they are entitled to receive 18.10% of the total compensation for the lands under acquisition, on the plea that a decree was passed to that effect, which was ultimately confirmed by the Apex Court. 3. The learned Single Judge, after hearing all the parties, passed the following order:- “...... It clearly appears that there is no dispute that the petitioner is entitled to receive 18.10% of the total compensation which may be awarded to the owners of the land under acquisition. Hence, respondent No.2 is directed to make award indicating the apportionment of the compensation and observe that the petitioner will be entitled to receive 18.10% of the total compensation that may be awarded under the Land Acquisition proceedings, in respect of this lands in question.” 4. The appellants herein were not parties to the aforesaid Special Civil Application No. 20703 of 200, and therefore, they have approached this Court with an application for leave to Appeal along with a Civil Application for condonation of delay of 166 days in filing the Appeal. The delay was condoned by this Court on 5th September, 2008 and thereafter, with the consent of all the parties, the Letters Patent Appeal was taken up for final hearing and disposal. 5. Learned counsel appearing for the appellants submitted that the learned Single Judge was not justified in holding that the original petitioners – respondents Nos. 1/1 to 1/8 herein, are entitled to receive LPA/947/2008 3/4 JUDGMENT 18.10% of the total compensation for the lands under acquisition, since they had executed an agreement to sell the lands in question to the appellants, and had also executed Power of Attorney by the original owner as well as the legal heirs of respondent No.1 herein, in favour of the appellants. Further it was also pointed out that the appellants have filed a Special Civil Suit No. 521 of 2007 in the Court of learned Civil Judge (Senior Division), Vadodara against respondents Nos. 1/1 to 1/8 herein and respondents Nos. 2, 4 and 5 have also been joined as parties in the said Special Civil Suit. The Suit was filed for a declaration and injunction restraining respondents Nos. 1/1 to 1/8 and respondent No.5 not to receive the amount of compensation, since on the basis of agreement as well as irrevocable power of attorney given to appellants by respondents Nos. 1/1 to 1/8, substantial right has been created in favour of the appellants. Learned counsel submitted that pending Special Civil Suit, if the amount of compensation is released and disbursed to respondents Nos. 1/1 to 1/8, great prejudice would be caused to the appellants. 6. Learned counsel appearing for respondents submitted that there is no justification in interfering with the order of the learned Single Judge. Learned counsel for respondent No.5 also submitted that present appeal is misconceived and the appellants have no locus-standi to prefer this appeal, after having filed a Civil Suit for identical relief. Learned counsel also submitted that though injunction was granted by the Civil Court, it was modified and the matter was taken in appeal before the Appellate Court and the same is pending for consideration. 7. We noticed that appellants have approached the Civil Court for identical relief and the Suit is pending for consideration before the Court of learned Civil Judge (Senior Division), Vadodara. Under the LPA/947/2008 4/4 JUDGMENT circumstances, this Court in this appeal does not see any justification to make any opinion on the merits of the case. Further we noticed that appellants herein have also moved the learned Single Judge by filing a Misc. Civil Application No. 211 of 2007 for clarification, but the same was also ultimately withdrawn. We noticed that the appellants had also preferred an Appeal from Order No. 463 of 2007 along with Civil Application No. 15669 of 2007 before this Court against order dated 20.12.2007 passed by the learned 6th Additional Senior Civil Judge, Vadodara, below Exh.65 in Special Civil Suit No. 521 of 2007, but the same have also been disposed of by the learned Single Judge vide order 10.7.2008, with a direction to decide and dispose of Exh.5 application within a period of 3 months. 8. Under these circumstances, we are of the view that since the appellants have already approached the Civil Court, if at all they have got any claim, they can adjudicate their case before the Civil Court and not before this Court. Appellants could not get any orders restraining respondents Nos. 1/1 to 1/8 from receiving the compensation amount. We, therefore, see no reason to entertain this appeal. The appeal stands dismissed, without prejudice to their contention in the Civil Suit. 9. Since the appeal is dismissed, Civil Application No. 10537 of 2008 for joining party as well as Civil Application No. 10538 of 2008 for stay do not survive, and the same stand disposed of accordingly. (K.S. Radhakrishnan, C.J.) (M.S. Shah, J.) */Mohandas