Gujarat High Court
Motibhai Paragbhai And Ors. vs State Of Gujarat And Ors. on 24 February, 1994
Equivalent citations: (1994)2GLR1105
Author: H.L. Gokhale
Bench: H.L. Gokhale
JUDGMENT A.P. Ravani, J.
1. Petitioners, who are sixty in number, are owners of different pieces of land situated in different villages, namely, Guvar, Lachharas and Shaherav, of Taluka Nandod, District Baroda. In this petition under Article 226 of the Constitution of India the petitioners have prayed that the respondents be directed to initiate proceedings for payment of compensation to the petitioners for the crops standing on the land under acquisition at the time of taking possession of the land. Petitioners have also prayed that respondents be directed to complete the proceedings immediately and make payment of the legitimate amount of compensation to the petitioners concerned in accordance with law. It is further prayed by amending the petition that the decision dated June 29, 1993, produced at Annexure "E" to the petition be quashed and set aside.
2. Pursuant to notification under Section 4 of the Land Acquisition Act, 1894 ('the Act' for short) petitioners' land was acquired. Awards were passed and possession of the land was taken, as provided under Section 16 of 'the Act'. The relevant details with regard to the date of notification under Section 4 of the Act, the land acquisition case number, the date of declaration of award and the date of panchnama of handing over possession are as follows:
Date of notification L.A. Date of Date of under Section 4 Case No. declaration panchnama of of award handing over possession 30-1-1986 41/85 30-11-1987 15-12-1987 10-9-1987 13/87 28-4-1988 15-12-1987 28-4-1983 32/80 12-1-1987 11-11-1987 13-12-1985 71/86 15-6-1987 27-9-1987 22-7-1986 79/86 or 15-6-1987 17-9-1987 15/86 and 25-9-1987 27-2-1987 27/86 30-1-1988 25-9-1987 28-7-1985 29/87 18-4-1987 25-9-1987 4-9-1987 14/87 28-4-1988 15-12-1987 21-5-1989 129/88 21-2-1990 10-11-1987 18-9-1986 35/86 7-1-1988 15-12-1987
3. Petitioners have received the amount of compensation as per the award declared under Section 11 of the Act. As indicated herein above, in five cases out of ten possession of the land was taken by the appropriate officer of the Government after the declaration of the award. In all cases when the possession was taken, there was standing crop on the land of the petitioners. As per the Panchnama of taking over possession of the land even the estimated value of the standing crop is mentioned. Since the petitioners were not paid any amount of compensation as regards the standing crop, they made representation to the respondents claiming compensation with regard to the damage sustained by them on account of taking over the possession by the Government with standing crop on the land. Respondents initially replied to the petitioners that their case was under consideration at the appropriate level in the Government. Ultimately, the petitioners have been informed that, as provided under Section 4 read with Clause (vii) of Section 24 of 'the Act' they were not entitled to receive any compensation as regards the standing crop. This reply dated June 27, 1993 is given to the petitioners after the petitioners had approached this Court by filing this petition and after the respondents received notice of this Court. A copy of the reply is produced at Annexure "E" to the petition.
4. On behalf of the respondents it is contended that after the Panchkyas was made the petitioners themselves had taken away the standing crop. Therefore, they are not entitled to claim any compensation. In support of this contention no reliable documentary evidence is produced. No receipt given by any of the petitioners is produced. It is not even averred that the respondents had permitted the land owner concerned to take away the crop. Therefore, the contention that the petitioners themselves have taken away the standing crop cannot be believed.
5. The aforesaid contention may be examined from yet another angle. In reply to the representation made by the petitioners, the respondents never came out with the aforesaid case. Respondents stated that the case of the petitioners for payment of compensation on the count of standing crop was under consideration of the Government. It was only after the filing of the petition and after the receipt of the notice of this Court by the respondents that the aforesaid decision dated June 29, 1993, produced at Annexure "E" to the petition has been taken by the Government. That is why petitioners sought amendment in the petition and prayed that the decision contained in letter dated June 29, 1993, produced at Annexure "E" to the petition be quashed and set aside. Petitioners contended that even in this decision the stand of the Government is not that the petitioners are not entitled to claim compensation because they themselves have removed the standing crop. This contention is raised for the first time in the affidavit-in-reply dated February 21, 1994.
6. In support of this contention reliance is placed on behalf of the respondents, on certain reports prepared by the Supervisor working in the area and submitted to his superiors. These reports have been read over to us by the Learned Counsel for the petitioners. Even in these reports, nowhere it is indicated that any of the Government officer had permitted the petitioners to take away the standing crop and Panchnama or the Rojkam thereof was made by the appropriate officer. There is no reliable document indicating that the petitioners themselves have taken away the standing crop. Therefore, it is evident that the contention that the petitioners themselves have taken away the standing crop is an afterthought. For this reason also this contention cannot be believed.
7. It may be noted that the petitioners had served notice dated December 3, 1992 under Section 80 of the Code of Civil Procedure addressed to the Executive Engineer, Karjan Irrigation Scheme, Rajpipla, District Bharuch. In this notice, it was stated that on the date when possession was taken there was standing crop. The possession has been taken by making Panchnama. It has been stated that no amount of compensation on account of the loss of standing crop sustained by them has been given. Therefore, it was demanded that as per the estimate made in the Panchkyas the amount of damages be paid to them with appropriate rate of interest. In response to this notice, by letter dated April 12, 1993 the petitioners' Advocate was informed that the case for payment of compensation on the count of standing crop has been referred to the Government. Further actions will be taken as per the decision that may be taken by the Government. Thereafter, the Government has taken decision which has been communicated to the petitioners' Advocate on June 23, 1993, i.e., after the petition was filed on April 20, 1993 and after the notice of this petition was served upon the respondents. The decision is produced at Annexure 'E' to the petition. The petitioners by amending the petition have challenged the legality and validity of this decision. It is stated in this decision that in view of the provisions of Section 4 read with Clause (vii) of Section 24 of the Act they were not entitled to receive any compensation as regards the standing crop. Validity of this impugned decision may be examined.
8. Section 24 of the Act inter alia provides for matters to be neglected in determining compensation. Clause (vii) of Section 24 reads as under:
The Court shall not take into consideration any outlay or improvements on, or disposal of the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under Section 4, Sub-section (1);
Relying on the aforesaid provisions of the Act, the petitioners are dented the amount of damages sustained by them by reason of taking standing crop at the time when the Collector took possession of the land in question. Be it noted that the petitioners did not claim any amount of compensation on account of any outlay or improvement made or effected on the land acquired without the sanction of the Collector. Therefore, Clause (vii) of Section 24 could not have been invoked for rejecting the claim of the petitioners. Learned Counsel for the respondents has not been able to point out anything from the record of the petition to show that the provisions of Clause (vii) of Section 24 of the Act read with Section 4 of the Act are applicable to the facts and circumstances of this case. Therefore, it is evident that the claim of the petitioners have been rejected by referring to the provisions of law which does not apply to the facts and circumstances of the case.
9. Learned Counsel for the petitioners have drawn our attention to the provisions of Section 23 which provides for matters to be considered for determining compensation. Clause (ii) of Section 23(1) of the Act inter alia provides that in determining the amount of compensation to be awarded for land acquired under the Act, the Court shall take into consideration the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof. Thus, it is evident that the aforesaid provision requires the Court to take into consideration while determining the amount of compensation to be awarded for the damages sustained by reason of taking of any standing crops or trees which may be on the land at the time of taking possession by the Collector. As provided under Section 15 of the Act, while determining the compensation the Collector is to be guided by the provisions contained in Sees. 23 and 24 of the Act.
10. However, the Collector may take into consideration the damages sustained by the person interested by reason of taking of any standing crops or trees which may be on the land at the time of taking possession thereof, provided the possession is taken before passing award under Section 11 of the Act. In the instant case, as indicated hereinabove, at least in five cases out of ten. possession of the land has been taken over after the award is declared. In cases where the award is declared before taking possession naturally the Collector cannot take into consideration the damage which may be sustained by the person by reason of the standing crop at the time of taking possession of the land. In such cases the person interested, may not feel aggrieved by the award. Because, at that time question of awarding any compensation on the count of damage to standing crops might not have arisen at all. In such cases the person interested will not be in a position to seek reference under Section 18 of the Act for requesting the Collector to make reference to the Court. Thus, in some cases the provision of Section 18 of the Act may not apply because there may not be any question of not accepting the award. Under Section 18 of the Act reference could be sought to the Court and one may take objection regarding (1) measurement of the land; (2) amount of compensation; or (3) the apportionment of the compensation among the persons interested. However, when possession is taken by the Collector after passing of the award under Section 11 of the Act this eventuality of taking into consideration the damage sustained by the person interested by reason of taking any standing crop would not have occurred at all. The question about determination of amount of damage would arise only on the happening of an event, f. e., the event of taking away standing crop at the time of taking possession by the Collector under Section 16 of the Act.
11. Section 16 of the Act confers power on the Collector to take possession. It reads as follows:
When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.
The Section does not prescribe any time limit within which the Collector is obliged to take possession after the declaration of the award. Therefore, it is not certain as to when he will take possession. On the other band, the owner of the land is not expected to keep his land uncultivated till the Collector decides to take possession of it. That is the reason why the legislature has made provision in Clause (ii) of Section 23(1) of the Act which has been reproduced hereinabove. It inter alia provides for considering damage on the count of taking of any standing crop at the time of taking possession of the land. Section 15 of the Act requires the Collector to be guided by the provisions of Sees. 23 and 24 of the Act while determining the amount of compensation. Thus, conjoint reading of Section 15 and Clause (ii) of Section 23(1) of the Act makes it clear that the person interested is entitled to claim damage sustained by him by reason of taking of any standing crop or trees which may be on the land at the time of taking possession by the Collector.
12. In this connection, reference may be made to a Division Bench decision of this Court in the case of Dayaprakash Trikambhai v. The Special Land Acquisition Officer, Baroda, reported in (1969) X GLR 234. In that case, the trial Court, while deciding reference under Section 18 of the Act had refused to take into consideration the claim made by the petitioner on the count of damage sustained by him by reason of the taking of standing crop at the time of taking possession by the Collector. After referring to the scheme of the Act and Clause (ii) of Section 23(1) of Act, in para 20 of the judgment the Division Bench has observed to the effect that the Court is obliged to take into consideration the damage sustained by the person interested by reason of taking of any crops standing on the land at the time of Collector's taking possession thereof. It is further observed as under:
It means that the Court has to take into consideration the damage sustained by the claimant OB account of taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof. It means that it is only on an event happening, i.e.. an event of taking standing crops which may be on the land at the time of taking possession, this question will arise. This section leaves no discretion to the Court. The Court is bound to take into consideration the damage sustained by the claimant by reason of taking standing crops which may be on the land acquired at the time, the Collector takes possession. If there are no standing crops at the time of taking possession, that question does not arise. In our view, therefore, the Court is bound to consider this claim if the claimant has suffered any damages on account of standing crops which may be on the land under acquisition at the time of Collector's taking possession.
In view of the aforesaid position of law, the impugned decision dated June 29, 1993 produced at Annexure 'E' to the petition cannot be sustained and the same is required to be quashed and set aside.
13. Learned Counsel for the respondents submitted that the petitioners could have and ought to have made request to the Collector for making reference to the Court under Section 18 of the Act. In his submission, since no request has been made to the Collector under Section 18 of the Act for making reference to the appropriate Court, the petition under Article 226 of the Constitution of India should be rejected. The submission may be examined. Section 18 of the Act reads as follows:
18. Reference to Court: (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made, --
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award.
(b) in other cases, within six weeks of the receipts of the notice from the Collector under Section 12, Sub-section (2), within six months from the date of the Collector's award, whichever period shall first expire.
The section indicates that the claimant who may seek reference to the Court can take objection regarding (1) measurement of land, (2) amount of compensation; and (3) apportionment of the compensation amongst the persons interested.
14. The question with regard to the determination of amount of compensation on the count of damage sustained by the person interested would arise only if the event of taking possession of the land had taken place before the award is passed by the Collector. If the possession is not taken by the Collector at the time of the award under Section 11 of the Act the Collector would naturally not take into consideration the factor regarding damage that may be sustained by the person interested at the time of taking of possession of the land by the Collector. In all cases in which award is passed before taking possession of the land the provisions of Section 18 of the Act would not be applicable. As indicated hereinabove in para 2 of the judgment, at least in five cases out of ten the possession has been taken over by the Collector after the award under Section 11 of the Act is declared. Therefore, the provisions of Section 18 of the Act could not have been invoked by the claimant.
15. It is true that in cases where the Collector had taken possession before the award under Section 11 was passed, the person interested in the land could have requested the Collector for making reference to the appropriate Court under Section 18 of the Act. But as indicated hereinabove, when the petitioners requested for determination of the amount of damages sustained by them, respondents replied that the question was under consideration by the Government at the appropriate level. The respondents did not decide the question till the petition was filed. The question was finally decided and communicated to the petitioners by letter dated June 29, 1993 after the notice of the petition was served. Since the respondents did not decide the question for a pretty long time all the petitioners have been put in an awkward situation.
16. The application under Section 18 of the Act requesting the Collector to make reference to the appropriate Court could be made within maximum period of six months from the date of the Collector's award. It is so provided in proviso (b) to Sub-section (2) of Section 18 of the Act. For no fault of the petitioners, their right to seek reference under Section 18 of the Act within the prescribed time limit is lost. As per Full Bench decision of this Court in the case of Memon Ibrahim Haji Latif Supediwala v. Officer on Special Duly, reported in 1993 (2) GCD 724 (Guj.) : 1994 (1) GLR 296 (FB) the Collector's power to make reference under Section 18 of the Act are circumscribed by the conditions laid down in Section 18 of the Act. One of the important conditions laid down in the proviso is as regards the period within which application is to be made. If the application is made beyond the prescribed period the Collector will not have power to make reference. In order to determine the limits of his own power the Collector would have to decide whether the application presented by the claimants was or was not within time. He will have to satisfy as to whether the conditions laid down by proviso are complied with. If the application for reference is not filed within time the Collector will have no jurisdiction to make reference under Section 18 of the Act. The Full Bench has referred to various decisions of the Hon'ble Supreme Court and particularly decision in the case of Mohammad Hasnuddin v. State of Maharashtra, . After referring to the aforesaid decisions, the Full Bench has come to the conclusion that the provisions of Section 4 to Section 24 of the Limitation Act, 1963 are not applicable to the applications under Section 18 of the Act under which the Collector entertains application for reference to the Court. It is held that the Collector is not 'Court' and the provisions of Section 4 to Section 24 of the Limitation Act would not be applicable to the proceedings under Section 18 of the Land Acquisition Act under which the Collector exercises powers for making reference to the Court.
17. In view of the aforesaid settled legal position, when the petitioners have been informed that the Government has decided to reject their claim in view of the provisions of Section 4 read with Clause (vii) of Section 24, the period of six months within which the application could be made before the Collector from the date of passing of the award under Section 11 had already expired. Therefore, the petitioners could not have invoked the powers of the Collector to make reference before the appropriate Court. Similarly, even if the petitioners applied to the Collector, the Collector could not have exercised these powers because the conditions as regards limitation within which, the application could be entertained by him would not stand satisfied.
18. Hence, the contention that the petitioners ought to have submitted application under Section 18 of the Act to the Collector and requested the Collector to make reference has no merits. In facts of the case, it is evident that the petitioners have no other alternative remedy but to approach this Court by way of petition under Article 226 of the Constitution of India.
19. Be it noted that under Section 23(2) of the Act the person interested in the land would be entitled to claim damages and not market value. The provision contained in Clause (ii) of Section 23(1) takes care of the contingencies which may take place between the date of the notification under Section 4 and the date of the Collector's taking possession and also the contingency which may take place between the date of the award and the date of the Collector's taking possession of the land. However, on this count the claimant would be entitled to claim "damage sustained by reason of taking any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof. Thus, the owner of the land would be entitled to claim damages and not market value. The measure of damage would be the loss which the owner suffers by being deprived of the standing crops or trees which may be on the land at the time of the Collector's taking possession thereof. In the instant cases, the claim of the petitioners is confined to the damages sustained by them by reason of the taking of standing crop at the time of the Collector's taking possession of the land belonging to the petitioners. Since the respondents have failed to determine the amount of damage sustained by the petitioners by reason of taking of standing crop, the prayer made in the petition is required to be granted.
20. In the result, the petition is allowed. The decision of the Executive Engineer, Irrigation Scheme, Division No. V, Rajpipla, dated June 29, 1993 produced at Annexure 'E' to the petition is quashed and set aside. The respondents are directed to take proceedings for determining the amount of damage sustained by the petitioners concerned for the crops standing on the land in question at the time of taking over possession of the land under acquisition. On this count the amount that may be determined shall be paid as amount of compensation to the petitioners concerned in accordance with law. The exercise of determination of the amount payable to the petitioners concerned shall be completed by the respondents latest by June 30, 1994. Thereafter, the amount of compensation, if any, payable to the petitioners shall be paid to the petitioners within one month. Rule made absolute accordingly with no order as to costs.