SCA/511120/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5111 of 2008 To SPECIAL CIVIL APPLICATION No. 5122 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 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 ? 4 Whether this case involves a substantial question of law as 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 ? ========================================= = UNION OF INDIA - Petitioner(s) Versus BHOGILAL M DOSHI & 1 - Respondent(s) ========================================= = Appearance : MR NS SHEVADE for Petitioner(s) : 1, MR HJ NANAVATI for Respondent(s) : 1, None for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/10/2008 ORAL JUDGMENT SCA/511120/2008 2/8 JUDGMENT 1. As in all these Special Civil Applications, common question of law and facts arise, they are being disposed of by this common order. 2. At the outset, it is required to be noted that initially the common petitioner-Union of India, Western Railway had preferred Civil Revision Applications. However, considering the decision in the case of MAHENDRAKUMAR RAMANLAL THAKKER Vs. VANECHAND MORARJI DESAI, HEIR OF DECEASED DHANKUVERBEN VANECHAND, reported in 2004(1) GLH 736 and the decision in the case of KAPOOR DEVIERWALA HOTELS Vs. SURAT TEXTILE MARKET CO.OP SHOPS & WAREHOUSING SOCIETY LTD., reported in 2004(3) GLR 2565, the learned advocates appearing on behalf of the respective parties have requested to convert the Civil Revision Applications into Special Civil Applications and vide order dated 18th March, 2008, the common respective petitioner-Union of India, Western Railway was permitted to convert Civil Revision Applications into Special Civil Applications and that is how they are numbered as Special Civil Applications. 3. By way of these petitions under Article 227 of the Constitution of India the respective common petitioner- Union of India Western Railway, Mumbai has prayed for an appropriate writ, order or direction quashing and setting aside the orders passed by the learned Executing Court in Land Reference Darkhast Case Nos. 9/2006 to 18/1996, 1/1997 and 2/1997 filed by the respective respondent herein-claimant. Few facts are necessary for determination of the present Special Civil Applications. SCA/511120/2008 3/8 JUDGMENT 4. The lands of the respondents herein-claimants came to be acquired by Union of India, Western Railway for the project of converting meter guage into broad guage. At the end of acquisition, an award came to be passed by the Land Acquisition Officer on 23rd March, 1978 against which References came to be filed before the learned District Judge, Jamnagar and the learned Assistant Judge, Jamnagar vide his order dated 20th April, 1983 allowed the References partially. Being aggrieved and dissatisfied by the judgement and award passed by the Reference Court, the State of Gujarat preferred First Appeal No. 1927/1983 with First Appeal Nos. 1918 to 1926 and 1928 to 1929/1983 before this Court. The respondents- claimants also filed cross objections and the Division Bench of this Court vide judgement and order dated 22/11/1995 dismissed the Appeals preferred by the State Government and partly allowed the cross objections filed by the respondents- claimants by holding that the respondents- claimants would be entitled to benefit under Section 23(2) as well as Section 28 of the Land Acquisition Act, as amended in 1984. Thereafter, respondents herein-claimants submitted Land Reference Darkhast Case Nos. 9/2006 to 18/1996, 1/1997 and 2/1997 before the learned Executing Court and vide impugned order dated 07/05/1999, the learned Extra Assistant Judge, Jamnagar allowed all the Land Reference Darkhast Cases and directed the petitioner-Union of India, Western Railway to pay the amount to the respondents-claimants as mentioned in the schedule attached in the said order within two months, failing which, it was directed to recover the same by issuing jungam warrant under Order 21 Rule 30 of the Code of Civil Procedure against the petitioner. Being aggrieved and dissatisfied with SCA/511120/2008 4/8 JUDGMENT the impugned common order passed by the learned Executing Court passed in Land Reference Darkhast Case Nos. 9/2006 to 18/1996, 1/1997 and 2/1997, the petitioner-Union of India, Western Railway has preferred the present Special Civil Applications. 5. Shri N.S. Shevade, learned advocate appearing on behalf of the common petitioner-Union of India, Western Railway has vehemently submitted that unless and until the decree drawn by this Court in the aforestated First Appeals and the cross objections is produced alongwith the Land Reference Darkhast Cases, the learned Executing Court could not have passed any order to execute the decree. It is submitted that admittedly in the present case the respondents-claimants have not produced the judgement and decree passed in the First Appeals and the cross objections therein. It is further submitted that even the claim of the respective claimants-respondents in the Land Reference Darkhast Case is beyond the scope of the order passed by the Reference Court and this Court in the aforesaid First Appeals. It is submitted that even the respondents- claimants are not entitled to interest at the rate of 15% per annum after the first year of taking possession as contemplated under Section 28 of the Land Acquisition Act, as amended as there is no specific order passed by this Court in the First Appeals awarding interest at the rate of 15% per annum after the first year of taking possession. By making above submissions, it is requested to allow the present Special Civil Applications. 6. Shri H.J. Nanavati, learned advocate appearing on behalf of the respective claimants-respondents has submitted that the SCA/511120/2008 5/8 JUDGMENT respondents-claimants would be submitting and/or producing the judgement and decree drawn by this Court in the aforesaid First Appeals and the cross objections therein on record of the Land Reference Darkhast Cases. It is submitted that so far as the claim of the respective claimants with respect to interest at the rate of 15% per annum after the first year of taking possession as contemplated under Section 28 of the Land Acquisition Act is concerned, while allowing the cross objections, the Division Bench of this Court in the aforesaid First Appeals has clearly mentioned that the claimants would be entitled to benefit under Section 28 of the Land Acquisition Act as amended in 1984 and, therefore, the contention on behalf of the petitioner-Union of India, Western Railway that the respondents-claimants are not entitled to the additional interest at the rate of 15% per annum after the first year of taking possession cannot be accepted. 7. Heard the learned advocates appearing on behalf of the respective parties. At the outset, it is required to be noted that the respondents-original claimants have submitted respective Land Reference Darkhast Cases before the learned Executing Court to execute the judgement and decree passed by this Court in First Appeals No. 1927/1983 with First Appeal Nos. 1918 to 1926 and 1928 to 1929/1983 and the cross objections therein on the basis of the judgement and order dated 22/11/1995. However, it is an admitted position that the respective claimants-respondents have not produced the judgement and decree before the learned Executing Court and, therefore, the objection raised by the petitioner-Union of India, Western Railway is well founded. When a decree is sought to be executed and the Land Reference Darkhast Case is filed, SCA/511120/2008 6/8 JUDGMENT the judgement and decree must be produced alongwith the Land Reference Darkhast Case. Unless and until the judgement and decree is produced, there is no question of proceeding further with the execution. The learned advocate appearing on behalf of the respective respondents-claimants has submitted that they will produce the judgement and decree passed by this Court in First Appeal Nos. 1927/1983 with First Appeal Nos. 1918 to 1926 and 1928 to 1929/1983 and the cross objections therein before the learned Executing Court. Under the circumstances, to that extent, the present Special Civil Applications are required to be allowed and the matters are required to be remanded to the learned Executing Court to decide the same afresh on production of the certified copy of the judgement and decree passed by this Court in First Appeal No. 1927/1983 with First Appeal Nos. 1918 to 1926 and 1928 to 1929/1983 and the cross objections therein. 8. Now so far as the contention on behalf of the petitioner- Union of India, Western Railway that the respondents-original claimants are not entitled to interest on the additional amount at the rate of 15% after expiry of one year of taking possession as there is no specific order passed by this Court is concerned, the said contention has not submission at all. While allowing the cross objections, vide judgment and order dated 22/11/1995, the Division Bench of this Court has specifically held that the respondents-claimants would be entitled to benefit of Section 23(2) and Section 28 of the Land Acquisition Act as amended in 1984. Thus, considering the judgement and award dated 22/11/1995 in the First Appeal No. 1927/1983 with First Appeal Nos. 1918 to 1926 and 1928 to 1929/1983 and the cross objections therein, the respondents- SCA/511120/2008 7/8 JUDGMENT claimants would be entitled to, in addition to the market value of the land, a sum of 30% of the market value and the respondents- claimants would also be entitled to the interest at the rate of 9% per annum for the first year from the date on which possession of the land in question was taken and at the rate of 15% per annum after the date of expiry of the period of one year from the date on which possession is taken and the same would be on the enhanced amount. Thus, the contention on behalf of the petitioner-Union of India, Western Railway authorities that the respondents-claimants would not be entitled to interest at the rate of 15% after the date of expiry of the period of one year from the date on which the possession in taken, cannot be accepted and the same has no substance. 9. Considering the above when the respondents-claimants have not produced the judgment and decree passed by this court in the aforesaid First Appeals and the cross objections therein, in absence of the same, the learned Executing Court could not have passed an order in Land Reference Darkhast Cases and to that extent, the present Special Civil Applications deserve to be allowed and the matters are to be remanded to the learned Executing Court to decide the same afresh in accordance with law on its own merits, considering the observations stated hereinabove and on production of the certified copy of the judgement and decree passed in the aforesaid First Appeals and the cross objections therein. 10. Under the circumstances, the impugned orders passed by the learned Executing Court dated 07/05/1999 in Land Reference Darkhast Case Nos. 9/2006 to 18/1996, 1/1997 and 2/1997 are quashed and set aside and the matters are SCA/511120/2008 8/8 JUDGMENT remanded to the learned Executing Court for deciding the same in accordance with law on its own merits and considering the observations as stated hereinabove, on production of the certified copy of the judgement and decree passed by this Court in cross objections in First Appeal No. 1927/1983 with First Appeal Nos. 1918 to 1926 and 1928 to 1929/1983 and whatever amount is already paid, the same would be adjusted while passing the final order. In the facts and circumstances of the case, the learned Executing Court shall decide and dispose of the Land Reference Darkhast Cases at the earliest but not later than six months on production of the judgement and decree passed by this Court in cross objections in First Appeal No. 1927/1983 with First Appeal Nos. 1918 to 1926 and 1928 to 1929/1983. 11. With this, all these Special Civil Applications are allowed to the aforesaid extent. Rule is made absolute in each of the petitions. There shall be no order as to costs. (M.R. SHAH, J.) siji