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2021 Supreme(Guj) 1175
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NIRZAR S. DESAI, J.
PRABHAVATIBEN JIVANBHAI RATHOD - Appellant
Versus
KANJIBHAI BHAIJIBHAI THAKOR - Respondent
SPECIAL CIVIL APPLICATION NO. 10856 of 2019
Decided On : 26-11-2021
For The Appellant : MR VIVEK V BHAMARE, MS RENU R SINGH
For The Respondent: MR KM SHETH, MR BHARAT VYAS, AGP
Headnote:
Constitution of India, 1950 - Writ petition - Writ of certiorari - Disbursement of amount -To restrain private respondent from withdrawing amount of compensation - Land was acquired by acquiring body for purpose of constructing canal under Narmada Project and it was decided between petitioner and respondent that whatever compensation that may be awarded in respect of acquisition of land, it will be shared equally between petitioner and respondent - Petitioner refused to pay share of petitioner as agreed by respondent by way of consent letter and petitioner preferred Civil Suit seeking permanent injunction against disbursement of amount of compensation in favour of respondent - Held, petitioner has failed to establish his right in respect of land which is already acquired and in respect of compensation paid to respondent - In fact, in acquisition proceedings also, it was respondent only who was party to proceedings - Merely because civil appeal is pending against order dismissing suit preferred by petitioner, he cannot claim a relief of not to disburse amount of compensation in favour of respondent on basis of pendency of civil appeal - It is clarified that observations made by this Court in this order are tentative and prima facie in nature and civil court while deciding the Civil Appeal shall not be influenced by observations made by Court in this order and may decide appeal independently in accordance with law on basis of material placed before Court - It is needless to say that if petitioner succeeds in civil litigation, arising out of Regular Civil Suit, then whatever payment that respondent has received would be subject to final outcome of said litigation - Petition dismissed.
ORDER :
1. By way of the present petition, the petitioner has prayed for the following main reliefs:
“[b] This Hon’ble Court may be pleased issue writ of certiorari or any other appropriate writ of such nature and further be pleased to quash and set aside common order dated 10.05.2019 passed by the Ld. Principal Senior Civil Judge, Gandhinagar pursis for withdrawal of amount as well as application at Exbt:24 in LAR No.22 of 2013;
[c] Pending admission, hearing and/or final disposal of this petition, this Hon'ble Court may be pleased to stay implementation, execution & operation of common order dated 10.05.2019 passed by the Ld. Principal Senior Civil Judge, Gandhinagar pursis for withdrawal of amount as well application at Exbt:24 in LAR No.22 of 2013 and further be pleased to restrain the private respondent No.1 herein from withdrawing the amount of compensation;”
2. Brief facts giving rise to the petition are stated as under:
2.1 It is the case of the petitioner that land bearing Block No.76/66 situated at village Jaludhara Mota, Taluka Dehgam, District Gandhinagar was purchased by father of the respondent No.1 – Maijibhai Mathurbhai from one Keshabhai Motibhai Valand by paying a consideration of Rs.18,000/-, out of which, Rs.9,000/- was paid by the petitioner, and thereby it is a joint property. Since the petitioner was not an agriculturist, the said land was purchased in the name of father of respondent No.1 and an agreement was executed between them on stamp paper indicating that they are co-owners of the land in question.
2.2 Subsequently, the land was acquired by the acquiring body for the purpose of constructing canal under Narmada Project and it was decided between the petitioner and the respondent No.1 that whatever compensation that may be awarded in respect of the acquisition of the aforesaid land, it will be shared equally between the petitioner and respondent No.1. The consent letter was given by petitioner in favour of the respondent No.1 as per the case of the petitioner and pursuant to that consent letter which was given in the year 2002 it was decided between the parties that both the parties will get equal share by dividing the amount of compensation awarded into two halves. Accordingly, when as per the award an amount of Rs.44,000/- was awarded towards compensation of acquisition of the land acquired, after deducting the total legal expenses of Rs.10,000/-, the remaining amount of Rs.34,000/- was divided into two parts and Rs.17,000/- was paid to the petitioner by the respondent No.1 whose name was reflecting in the award.
2.3 After the aforesaid amount of Rs.17,000/- was paid to the petitioner by the respondent No.1, it is the case of the petitioner that thereafter the petitioner refused to pay the share of the petitioner as allegedly agreed by the respondent No.1 by way of consent letter of 2002 and thereafter the petitioner preferred Regular Civil Suit No.40 of 2004 before the Court of learned 3rd Additional Senior Civil Judge, Gandhinagar seeking permanent injunction against the disbursement of the amount of compensation in favour of respondent No.1. The aforesaid suit was dismissed vide order dated 6.5.2013 and the petitioner challenged the aforesaid order by filing Civil Appeal No.7 of 2017 before the court of learned Principal Senior Civil Judge, Gandhinagar. That appeal is pending.
2.4 In the meantime, the respondent No.1 preferred application under Section 18 of the Act and the same was referred to the Civil Court by the Collector in the Land Reference Case No.22 of 2013 and the land reference case was decided in favour of respondent No.1 and the amount of compensation was enhanced and an amount of Rs.26,89,592/- was deposited before the court by the acquiring body.
2.5 When the respondent No.1 preferred an application for disbursement of the said amount, the petitioner raised objection by preferring objection application against that disbursement stating that the amount may not be disbursed in favour of re
