Bombay High Court
The Union Of India (Uoi), Through Deputy ... vs Mundra Salt And Chemicals Industries ... on 24 June, 1996
Equivalent citations: 1996(4)BOMCR679, (1996)98BOMLR118
JUDGMENT M.L. Dudhat, J.
1. These two companion appeals are arising out of land acquisition proceedings which are being disposed of by this common judgment. The trial Court has also disposed them of by a common judgment.
2. Both these appeals are preferred by the Union of India (appellant No. 1) and the Special Land Acquisition Officer (appellant No. 2) against the Judgment and decree dated 23rd April, 1993, passed by the learned Joint District Judge, Thane, in Land Acquisition Reference No. 90 of 1986 and Land Acquisition Reference No. 91 of 1986. First Appeal No. 257 of 1994 is preferred against the Judgment and decree passed by the trial Court in L.A.R. No. 90 of 1986 and the First Appeal No. 258 of 1994 is preferred against the Judgment and decree passed by the trial Court in L.A.R. No. 91 of 1986. At this stage, we may also mention that the respondents in the aforesaid appeals have also filed Cross Objections being Cross Objections (Stamp) No. 30532 of 1994 in First Appeal No. 257 of 1994 and Cross Objections (Stamp) No. 30578 of 1994 in First Appeal No. 258 of 1994. The aforesaid Cross Objections are filed by the original claimants for enhancing the compensation granted by the trial Court. Few facts which are necessary for the disposal of these two appeals are as under :
3. On 22-5-1952, Tahsildar, Thane, published a public notice informing members of public that the suit lands were to be sold in a public auction which was going to be held on 12-6-1952. Description of these lands was as under :
Village Survey No. Area Acres - Gunthas Kopri 43(P) 70 - 21 Mulund 39(P) 45 - 16 Mulund 386(P) 128 - 03 Claimant No. 2, who is respondent No. 2 (since deceased) in the present two appeals, offered the highest bid at the upset price of Rs. 26.00 per Acre on behalf of respondents. Respondent No. 2 thereafter deposited a sum of Rs. 1600.00 with the Tahsildar on 12-6-1952 towards the price of the land which was auctioned. Thereafter, on 26-6-1952, respondent 2 deposited the balance amount of Rs. 4744.00 with the Tahsildar, Thane. On 5-5-1955, Collector, Thane, passed an order confirming the auction sale in favour of respondent No. 2 and incorporated in the said order of confirmation, the terms and conditions of the auction sale. One of the terms and conditions of that grant was that the Grantee will have to execute an agreement in Form "F" evidencing the grant of old tenure. It is also an admitted position that the aforesaid sale of the land was communicated to the present appellant i.e. the Union of India, who received a copy of the order dated 5-5-1955 from appellant No. 2.
4. Thereafter, Kabulayat (i.e. agreement) was executed by respondent No. 2 in respect of the land bearing Survey No. 43(P) admeasuring 70 Acres - 21 Gunthas, which was also signed by the Tahsildar, Thane. Additional terms and conditions were also annexed to the said Kabulayat (agreement). We may point out here that in respect of the other lands forming subject-matter of Grant and subsequent acquisition, respective claimants also had given the Kabulayat (agreement) as per the order of the Collector dated 5-5-1995. Thereafter, the Circle Officer, Thane, handed over the possession of all these lands to all the respective claimants. On 17-4-1965, Mutation Entry No. 205 was certified in the name of respondent No. 2 and entered in the record of rights. Thereafter, since respondent No. 2 executed a deed of partnership on 28-12-1956, names of all the partners of respondent No. 1 were also entered in the record of rights in respect of the land bearing Gat No. 86. Part of the said land granted to the claimants was also acquired in the acquisition proceedings wherein the respondents as owners accepted the compensation.
5. On 11-10-1980 a notification was also issued under section 126 of the Maharashtra Regional and Town Planning Act, 1966 read with section 6 of the Land Acquisition Act, 1894, whereby the Government of Maharashtra declared its intention to acquire land admeasuring 36,051 sq. metres out of Gat No. 86. The said notification was published in the Government Gazette on 11-12-1980. The aforesaid land acquisition is the subject-matter of the First Appeal No. 258 of 1994.
6. On 12-12-1980, the Government of Maharashtra issued a notification under section 4 of the Land Acquisition Act, 1894 read with section 128 of the Maharashtra Regional & Town Planning Act, 1966 declaring their intention to acquire the land admeasuring 32,506 sq. metres out of Gat No. 86(P). The said notification was published on 1-1-1981. Respondents challenged the said notifications by filing a writ petition, being Writ Petition No. 3961 of 1981 in this High Court. In the said writ petition, minutes of order were filed and by the said minutes dated 8-12-1981, respondents agreed to hand over the possession of an area of 36-,051 sq. metres notified by the notification dated 11-10-1980. However, the Government of Maharashtra agreed to release a portion of the land admeasuring 21,029 sq. metres out of an area of 32,506 sq. metres, which was notified for acquisition by the notification dated 12-12-1980. Thus, out of the land notified by the notification dated 12-12-1980, Government of Maharashtra decided to acquire only a portion admeasuring about 11,477 sq. metres. As per the terms, the respondents agreed to give another portion admeasuring about 21,029 sq. metres from the land bearing Gat No. 86 for public purpose. The Government of Maharashtra agreed to issue a separate notification for acquiring the said portion of 21,029 sq. metres. As per the said order passed in the said writ petition, the respondents handed over possession of a portion of land admeasuring 36,051 sq. metres as well as a portion of land admeasuring 11,477 sq. metres on 9-12-1981. In respect of the said acquisitions and handing over possession of the said land, respondents claimed compensation, which is the subject-matter of the present first appeals.
7. Before the Land Acquisition Officer, appellant No. 1-Union of India challenged the ownership of the respondents in respect of the acquired lands. The Land Acquisition Officer, therefore, referred the issue of title in respect of the acquired lands to the decision of the Collector, Thane vide his order dated 19-9-1986. The Collector, Thane, upheld the contention of the Union of India and held that the Union of India was the owner of the acquired land and the respondents were only the lessees entitled to receive compensation on account of loss of business. On 23-9-1986, the Land Acquisition Officer published two separate Awards, by which the Land Acquisition Officer awarded compensation to respondents for the loss of business for a period of six months. Against this order passed by the Collector, Thane, and the Land Acquisition Officer, respondents preferred a writ petition, being Writ Petition No. 4700 of 1986 in this High Court, whereby the respondents challenged the order dated 19-9-1986 passed by the Collector, Thane, and also the two Awards dated 23-9-1986 passed by the Land Acquisition Officer. In the meantime, on 28-10-1986, respondents also filed separate two applications under section 18 of the Land Acquisition Act, 1894 praying for reference to the District Court for grant of enhanced compensation. In the aforesaid references, respondent claimed compensation at the rate of Rs. 150.00 per sq. metre. The said were Land Acquisition References Nos. 90 and 91 of 1986 for acquisition of lands admeasuring 11,477 sq. metres and 36,051 sq. metres respectively. The writ petition filed by the respondents being Writ Petition No. 4700 of 1986 came up for final hearing before the High Court and the High Court passed an order dated 23-11-1992 setting aside the order dated 19-9-1986 passed by the Collector, Thane. The High Court also directed the District Court to decide the issue of ownership of the lands under acquisition in Land Acquisition Reference Nos. 90 and 91 of 1986. The said two references were heard by the learned Joint District Judge, Thane, who allowed both the parties to lead evidence. Only in the Land Acquisition Reference No. 91 of 1986, the appellant No. 1 - Union of India filed their written-statement. However, the appellant No. 2 - Government of Maharashtra did not file any written-statement. In the said references, respondents led oral as well as documentary evidence. However, the appellants led no evidence to fortify their contentions. They, however, relied on certain provisions of the Acts and also on the interpretation of the Grant. The learned Joint District Judge, Thane, allowed both the references filled by the respondents and held that respondents are the owners of the lands acquired and they were also entitled to receive compensation calculated at the rate of Rs. 80.00 per sq. metre.
8. The aforesaid Judgment and decree passed by the trial Court are the subject-matter of dispute before us in these two First Appeals. It is contended by Mr. Tated, the learned Additional Government Pleader appearing on behalf of the appellants, more particularly on behalf of appellant No. 1 the Union of India that the trial Court erred in coming to the conclusion that respondents were owners of the land. According to him, by the purchase of land in the auction which was effected in 1952 by the respondents, the respondents were given the user of the land only i.e. manufacturing of salt and it could be termed either as a lease or a licence. But, in any case the same cannot be called as "sale" of the lands by appellant No. 2 in favour of respondents. He further contended that as per the provisions of the Bombay Land Revenue Code, 1879, the land is owned by the Union of India, the appellant No. 1 herein, and , therefore, the Land Acquisition Officer was right in granting only the amount on account of loss of business for six months to the respondents. On the other hand, Mr. Manohar, the learned Counsel appearing on behalf of the respondents-claimants contended that the terms and conditions of the Grant issued by the appellant No. 2 in favour of the respondents clearly show that in the year 1952, the auction was held for the sale of the lands and since respondents had complied with all the terms and conditions of the said auction, the respondents are the purchasers of the lands and the lands acquired absolutely vest in the respondents. He further contended that the fact that the respondents had purchased the said lands was also communicated to the appellant No. 1 at the time of the auction and there is definitely evidence to show that on 5-5-1955 the order of the Collector, Thane, dated 5-5-1955 was despatched to appellant No. 1 for granting certain permissions. It was contended on behalf of the respondents that the evidence on record clearly goes to show that respondents are the purchasers of the said lands and the said lands were purchased by them in the auction which was held in the year 1952. The record also shows that the appellant No. 1 had acquiesced in the fact that respondents had purchased the said lands and the said lands vested absolutely in the respondents. It was also contended on behalf of the respondents that the relevant sections of the Acts shown by the learned Additional Government Pleader Mr. Tated on behalf of the appellants to show that the lands belonged to appellants, in fact, are not applicable. The various provisions which we will be discussing in the subsequent portion of our Judgment will show that the lands belonging to appellant No. 2 were legally sold in the auction by appellant No. 2 to respondents. As against this, it was pointed out that appellants had led no evidence whatsoever to prove their contentions and, therefore, strictly construing the Grant made in favour of respondents, in view of the rules of the Supreme Court, the only irresistible conclusion would be that the respondents are owners of the lands.
9. Both the sides also argued vehemently on the issue of compensation as awarded by the trial Court. Mr. Tated, the learned Counsel appearing on behalf of the appellants contended that assuming without admitting that the respondents are the owners of the lands in question, the learned District Judge had awarded a compensation of Rs. 80.00 per sq. metre, which, according to the norms applied by the Supreme Court, should not be more than Rs. 50.00 to Rs. 60.00 per sq. metre. On the other hand, Mr. Manohar, the learned Counsel appearing on behalf of the respondents contended that the compensation awarded by the trial Court was less than the market value and according to the respondents, they ought to have been paid the compensation at the rate of Rs. 105.00 sq. metre.
10. We will first deal with the issue of ownership of the lands in question. Mr. Tated, the learned Counsel appearing on behalf of the appellants contended that the lands are owned by appellant No. 1 - the Union of India. According to him, the order passed in the auction and other incidental documents giving effect to the auction-purchase show that the respondents are not the owners of the lands. On the other hand, it was contended by Mr. Manohar, the learned Counsel appearing on behalf of the respondents that all these aforesaid documents conclusively show that the respondents are the owners of the lands in question. Therefore, at this stage it is desirable to go through the relevant documents relied upon by both the sides to fortify their claims.
11. The true translation of the proclamation dated 22nd May, 1952 issued by the Mamlatdar, Thane, is as under:---
"Members of the public are hereby informed that Marshy land described herein is to be sold on ownership basis in public auction together with right to construct Salt Works thereon and to manufacture salt therein:---
Village Survey No. Area Acres - Gunthas
--------- ------------ --------------------
Kopri 43(Part) 70 - 21
Mulund 39(Part) 45 - 16
Mulund 386(Part) 128 - 03
-------------------
Total 244 - 0
The said auction will be held on 12th June, 1952 at 12.00 Noon at Mamlatdar's Office at Thane. Hence, whosoever interested in participating in auction, he should remain present at the aforesaid place at the fixed time. The conditions of auction will be read at the time of auction. Confirmation of auction will depend upon the discretion of the Collector, Thane.
Signed : Mamlatdar, Thane.
Copy to : M/s. Radhakishan Lalchand & Co.
Salt Merchant, Thane."
Relying on the aforesaid Proclamation, Mr. Tated, the learned Counsel appearing on behalf of the appellants contended that by the aforesaid Proclamation, the appellant No. 2 had only intended to sell in public auction the right to manufacture salt on the said lands. On the other hand, Mr. Manohar, the learned Counsel appearing on behalf of the respondents contended that the aforesaid Proclamation clearly shows the intention of appellant No. 2 to sell the ownership of the lands with the right to construct salt pans for the manufacture of salt on the suit lands. We have gone through the said Proclamation minutely. According to our opinion, the first four introductory lines of this Proclamation are important from the point of view of deciding the controversy. These lines clearly show that the appellant No. 2 intended to sell the lands on ownership basis together with the right to carry out the construction of the Salt Works to manufacture salt and, therefore, in any case there is nothing in this Proclamation to support the case of the appellant that the auction was for the purpose of carrying out a lease or a licence, which words are conspicuously absent in the present Proclamation. Apart from that, the aforesaid first para of the Proclamation also clearly shows that the marshy land is owned by the appellant No. 2 and not by appellant No. 1. Therefore, according to our opinion, the Proclamation dated 22-5-1952 clearly supports the version of the respondents and is against the version postulated by the appellant.
12. It is an admitted position that highest bid was offered by respondents and they paid all amounts required to be paid as per the terms of the auction. The next document which is very important, according to our opinion, is the order dated 5-5-1955 passed by the Collector, Thane, which is at Exhibit 58/99. As per the aforesaid order, the Collector, Thane, has confirmed the auction in favour of respondents subject to certain conditions. Out of the said conditions, condition No. 1 is strongly relied upon by Mr. Tated, the learned Counsel appearing on behalf of the appellants. He contended that as per the condition No. 1, it is clear that the intention of giving the Grant was that the lands shall be used exclusively for the manufacture of salt and for no other purpose. Relying on those conditions, it is contended on behalf of the appellant what was auctioned was the licence in respect of the suit lands to carry out the manufacture of salt and, therefore, this cannot be termed as an absolute sale in favour of the respondents. If we take into consideration Clause No. 1 of the said Grant in isolation with the other Clauses of the Grant, then only there appears to be some substance in the argument advanced on behalf of the appellants. However, we have read the order at Exhibit 58/99 as a whole. Firstly, as pointed out earlier, the Proclamation in respect of the auction sale clearly stated that the suit lands were to be sold along with the right to construct salt pans and to manufacture salt in the suit lands. Apart from that, Clause 2 of the said order at Exhibit 58/99 further states that in the case of withdrawal or cancellation of the licence by the Government of India, the purchaser shall not use the land for any other purpose without the previous written permission of the Collector and the Collector may, at the time of granting the permission, impose such conditions as he may deem fit. This second Clause of the aforesaid order at Exhibit 58/99 clearly destroys the contention of the appellant. If what was sold by way of auction and what was granted by appellant No. 2 to respondents was only a licence, then, in that event the wording of the order at Exhibit 58/99 would have been that on withdrawal or cancellation of the licence to manufacture the salt by the Government of India, the grant of the land would be withdrawn or that licence would come to an end. But on the contrary, in such type of eventualities, the user of the lands could be changed (vide clause two of the order) after obtaining permission from the Collector. Therefore, according to our opinion, on a fair reading of the two clauses viz. Clause 1 and Clause 2 of the aforesaid order, the interpretation appears to be completely in favour of the respondents that in the said auction of 1952 they had purchased the ownership rights and not merely a licence or a lease of the land. Clause 6 of the said order dated 5-5-1955 states that respondents shall execute an agreement in Form "F" evidenting the grant of old tenure. It is also pertinent to note that in all those conditions viz. 2, 4 and 5 of the order, the word used is "Purchaser", which clearly goes to show that in the auction what they (respondent) had purchased is the land and not the user of land only.
13. The expression "old tenure" used in the aforesaid order dated 5-5-1955 is defined in Bombay Survey & Settlement Manual, Vol. I, published by Government of Maharashtra. It means:--"The old tenure is that of the Joint Report, one of the main objects of which was "to afford the greatest facilities for its (the land's) conveyance from one party to another," with the design of "preventing the land becoming the inheritance of a pauper, or at least poverty-striken peasantry". It is this characteristic of "transferability" which distinguishes it from the "New tenure", by which, for reasons to be explained under that head, the power of transfer is restricted." From the aforesaid definition, it appears that characteristics of "transferability" of the old tenure are distinguishable with the new tenure. As required under Clause 6 of the order dated 5-5-1955 at Exhibit 58/99, respondents executed the Kabulayat. After all the formalities were complied with, respondents received Sanad. In the said document of Sanad, which is at Exhibit 61, respondents were confirmed in the occupancy exempt from all land revenue and the relevant portion of the said Sanad is as follows:---
"You are hereby confirmed in the said occupancy exempt from all land revenue or subject to the payment of Rs....per annum to the land revenue.
The terms of your tenure are such that your occupancy is both transferable and heritable, and will be continued by the State Government without any objection or question as to title to whosoever shall from time to time be its lawful holder subject only, to the condition of the payment annually of the above land revenue according to the provisions of the Bombay Land Revenue Code or of any other law for the time being in force and to the liability to have the said rate of assessment revised at the expiration of a term or years reckoned from the.....and thereafter at successive period....years in perpetuity and to the necessity for compliance with the provisions of law from time to time in force as to the time and manner of payment of the said assessment, and, to the liability of forfeiture of the said occupancy and of all rights and interests connected therewith in case of your failure to pay the said assessment as required by law".
This Sanad specifically states that tenure of respondents' occupancy is both transferrable and heritable and the same was to be continued by the State Government i.e. appellant No. 2 without any objection or question as to title to whatsoever shall from time to time be its lawful holder subject only to the condition of the payment annually of the above revenue according to the provisions of the Bombay Land Revenue Code or of any other law for the time being in force and to the liability to have the said rate of assessment revised at the expiration of a term...years reckoned from the....and thereafter at succeeding period...years in perpetuity. This terminology used in the said Sanad clearly goes to show that by the auction what was granted to the respondents was the ownership of the land which was transferrable and heritable and it was in perpetuity subject to payment of some revenue. Further, appellant No. 2 assured that the said tenure shall continue without any objection or question as to the title of the respondents. All these documents clearly support the contention of the respondents to show that what was confirmed by the Grant in favour of respondents was the ownership of the suit lands and not the licence or the lease of the suit lands. In pursuance of the aforesaid Grant, necessary entries were also made in the record of rights which are at Exhibits 16 and 17. It is further pertinent to note that there is no forfeiture clause contained in the order 5-5-1955 to the effect that the Grant will be cancelled if particular condition/conditions are not complied with. This also to the effect that the Grant will be cancelled if particular condition/conditions are not complied with. This also supports the contention of the respondents that the order dated 5-5-1995 was nothing but an outright sale of the suit lands and not the licence or the lease of the suit lands.
14. At this stage, it is desirable to go through section 37 of the Bombay Land Revenue Code, 1879 as it stood when the Grant was made. By relying on the provisions of section 37(1) of the said Code, Mr. Tated, the learned Counsel appearing for the appellants contended that by applying the aforesaid section 37(1) of the Bombay Land Revenue Code, 1879 the Central Government i.e. appellant No. 1 is the owner of the suit lands. The caption of section 37 of the said Code is as under:--"All public roads, etc. and all the lands which are not the property of others, belong to Government." This means, this section of Code will be applicable only if the lands are not belonging to others including the Government of Maharashtra and other individuals. The said section 37(1) is as under:---
"All public roads etc., and all lands which are not the property of others, belong to the Government.
37.(1) All public roads, lanes and paths, the bridges, ditches, dikes and fences, on, or beside, the same, the bed of the sea and of harbours and creeks below high-water-mark, and of rivers, streams, nallas, lakes, and tanks and all canals and water-courses, and all standing and flowing water, and all lands wherever situated which are not the property of individuals, or of aggregates of person legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and hereby declared to be, with all rights in or over the same, or appertaining thereto, the property of the Government and it shall be lawful for the Collector, subject to the orders of the Commissioner to dispose of them in such manner as he may deem fit or as may be authorised by general rules sanctioned by the Government concerned, subject always to the rights of way and all other rights of the public or individuals legally subsisting."
From the bare reading of the above section, it is clear that the suit lands which are marshy lands cannot come within the description of the lands, namely, public roads, lanes and paths, bridges, etc. and, therefore, according to our opinion, the reliance placed on section 37(1) of the Bombay Land Revenue Code, 1879 does not help the appellants to show that they were the owners of the lands in question at the time of their Grant.
15. Mr. Tated, the learned Counsel appearing on behalf of the appellants also relied upon section 181 of the Bombay Land Revenue Code, 1879, which is as under :
"On confirmation of sale, purchaser to be put in possession. Certificate of purchase."
181. After a sale of any occupancy or alienated holding has been confirmed in manner aforesaid, the Collector shall put the person declared to be the purchaser into possession of the land and shall cause his name to be entered in the land records as occupant or holder in lieu of that of the defaulter, and shall grant him a certificate to the effect that he has purchased the land to which the certificate refers."
By referring to the aforesaid section 181 of the Bombay Land Revenue Code, 1879, Mr. Tated contended that confirmation of the sale by the purchaser requires stamp papers and, admittedly, in the present case, the Grant is without any stamp paper and, therefore, according to the learned Counsel Mr. Tated by the auction held in 1952, the appellant No. 2 had only transferred a licence to carry on the business of manufacturing of salt. According to our opinion, there is no substance in this argument. The confirmation of sale under section 181 of the Bombay Land Revenue Code, 1879 results out of the proceedings adopted on account of non-payment of revenue tax. On default of such payments, procedure as prescribed under section 177 onwards of the Bombay Land Revenue Code, 1879 has to be adopted and on failure on the part of the occupier to pay the tax, the land is sold in auction and thereafter the sale is confirmed under section 181 of the said Code. This section does not deal with the contingency of sale or grant confirmed by the Government on an individual. In the present case, the suit lands were sold in auction by the Government appellant No. 2 and the lands were granted by the order dated 5-5-1955. Therefore, the argument advanced on behalf of the appellants with reference to section 181 of the Bombay Land Revenue Code, 1879 is not sustainable.
16. In the present case, it is desirable to go through the provisions of the Government Grants Act, 1895. Section 2 of the said Act is as under :
"2. Transfer of Property Act, 1882, not to apply to Government grants.---Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of any person whomsoever, but every such grant and transfer shall be construed and take effect as if the said Act had not been passed."
Thereafter, section 3 of the said Act, namely, Government Grants Act, 1895 is as under :
"3. Government grants to take effect according to their tenor.---All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the legislature to the contrary notwithstanding."
The aforesaid provisions of the Government Grants Act, 1895, which are applicable to the present grant awarded in favour of the present respondents clearly excludes the applicability of the Transfer of Property Act and/or any other Act and specifically states that every grant and transfer shall be construed and it shall take effect notwithstanding any other legislation and, therefore, the tenor of the grant should prevail, though it might be inconsistent with the other provisions of law, assuming without holding that there is any inconsistency in the grant with any other statute.
17. In fact, according to respondents, the grant made by the Collector dated 5-5-1955 was clearly in pursuance of section 62 of the Bombay Land Revenue Code, 1879 read with Rule 42 of the Bombay Land Revenue Rules, 1921. The said section and the said Rule are as under :
"Unoccupied land may be granted on conditions.
62. It shall be lawful for the Collector subject to certain rules as may from time to time be made by the State Government in this behalf, to require the payment of a price for unalienated land or to sell the same by auction, and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under section 60. The price (if any) paid for such land shall include the price of the Government right to all trees not specially reserved under the provisions of section 40 and shall be recoverable as an arrear of land revenue."
Rule 42 of the said Rules is as under :
"42. Unoccupied land required or suitable for building sites or other non-agricultural purposes shall ordinarily be sold after being laid out in suitable plots by auction to the highest bidder whenever the Collector is of opinion that there is a demand for land for any such purpose; but the Collector may, in his discretion, dispose of such land by private arrangement, either upon payment of price fixed by him, or without charge, as he deems fit."
On reading the aforesaid section and the Rule, it is clear that the said order dated 5-5-1955 was passed under the aforesaid provisions and it was legally correct and, therefore, according to our opinion, the aforesaid grant is perfectly within the ambit of the aforesaid section and the Collector had full authority to do so under the Bombay Land Revenue Code, 1879.
18. We have already discussed above that the grant given by the Collector in the year 1955 was a sale of lands and not a lease or a licence. Mr. Manohar, the learned Counsel appearing on behalf of the respondents relied upon several authorities to show that by applying the principles laid down and the ratio of the decisions rendered by the Supreme Court in respect of such grants and the documents on record in the present case, the said Grant, in the present case, will have to be construed in favour of the respondents. Firstly, he relied upon , Sahebzada Mohammad Kamgarh Shah v. Jagdish Chandra Deo D. Deb. In the aforesaid decision, the Supreme Court laid down the principle as to how the grants conferred by the Government are to be interpreted. In para 13, the Supreme Court has clearly stated that to understand the intention of the Grant, the intention has to be gathered by the words used by the parties themselves and further the document of Grant has to be interpreted strictly against the Grantor in favour of Grantee. In the present case, as pointed earlier, the words "purchaser" and "sold" used in the order of the Grant and further giving right to the Grantee to sell the land and giving to the Grantee a further rights of succession and inheritance in respect of the said lands and further giving to the Grantee the right of change of user, subject to the permission of the Collector, clearly show the intention of the Grantor to the effect that by the order of Grant order dated 5-5-1955, the appellant No. 2 sold the ownership of the lands to the respondents. The second decision relied upon by the respondent is the decision in the case of S.N. Ranade v. Union of India, , more particularly para 8 thereof, which is as under:
"(8) The other consideration on which Mr. Pathak has relied is that under the provision of section 8 of the Transfer of Property Act, it should be assumed that unless a different intention is expressly or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incident thereof. Mr. Pathak contends that assuming that prior to the grant, the Peshwa Government as the ruling power of the day was the owner of the river and its flowing water, when the said Government made a grant to appellant's predecessors, the principle enumerated by section 8 of the Transfer of Property Act should be applied and the grant should be construed to include all rights, title and interest of the grantor, unless there is a contrary provision either expressly made, or implied by necessary implications."
As per the aforesaid decision of the Supreme Court, when a grant is made by the Government, the principle enunciated under section 8 of the Transfer of Property Act should be applied and the grant should be construed to include all rights, title and interest of the grantor, unless there is a contrary provision either expressly made, or implied by necessarily implication. Admittedly, in the present case, there is no express or implied prohibition made in the Grant and, therefore, the Order of the Grant dated 5-5-1955 will have to be construed as sale of the suit lands, by which the respondents have become absolute owners of the lands.
19. Respondents also relied upon the decision of the Supreme Court in the case of Mohsin Ali v. State of Madhya Pradesh, , more particularly on paras 17 and 18 thereof, which are as under :
"17. This general rule is, however, capable of important relaxations in favour of the subject. If the intention of the Sovereign is obvious from the document which in precise, unequivocal terms defines the extent and nature of the benefit conferred, it must take effect. No question of seeking extrinsic aid to its construction arises. If the Grant is for valuable consideration it must be construed strictly in favour of the grantee for the honour of the Sovereign and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereign's profit. Where, however, two interpretations may be given to the Grant, both of which are good, that which is most favourable to the Crown is in many cases preferred (See Halsbury's Laws of England, 3rd Edn, Vol. 7, Paragraphs 669 and 670 pages 314-316)."
18. These rules of interpretation have been applied to Sovereign grants in India, also see Raja Rajinder Chand v. Sukhi, 1956 S.C.R. 889 (as per S.K. Das, J., : , Gulabdas Jagjivandas v. Collector of Surat, (1878)6 Ind. App. 54 (P.C.); Sheikh Sultan Sani v. Sheikh Ajmoddin, (1892) Ind. App. 50 (P.C.); Aziz-un-nissa v. Tasadduq Hussain Khan, (1901)28 Ind.App. 65 (P.C.); Ram Narayan Singh v. Ram Saran Lal8, I.L.R. 46 Cal. 683 : A.I.R. 1918 P.C. 203."
As per the observations of the Supreme Court, grant for valuable considerable, for the honour of the Sovereign, must be construed strictly in favour of the grantee and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred. In the present case, there is at all no scope for two interpretations. Grant in the present case is for a valuable consideration and the construction of the Grant is also clearly to the effect that the respondents purchased the ownership of the suit lands.
20. Mr. Manohar, the learned Counsel appearing on behalf of the respondents also cited other cases, namely, Chennapa v. State, ; Gyani Tara Singh v. State, , and Delhi Development Authority, New Delhi v. Nehru Place Hotels Ltd., New Delhi, , which, more or less, reiterate the same principles as enunciated by the Supreme Court, which we have already discussed as above. In view of this, we have no hesitation in coming to the conclusion that by the order of Grant dated 5-5-1955, respondents purchased the suit lands and have become owners of the suit lands. It is also pertinent to note that no evidence whatsoever was led by the appellant No. 1-the Union of India to show their ownership. Apart from the aforesaid legal position, there is also an evidence to show that both the appellants had accepted the ownership of the present respondents on earlier occasions, namely, that on 8-3-1965, when a part of the suit lands purchased by the respondents under the Grant was acquired by the Special Land Acquisition Officer (Highways) and the Government paid compensation for the said land to the respondents being the owners of the land. Thereafter on 19-1-1968, Municipal Corporation of Greater Bombay also acquired a portion of the land purchased in auction by the order dated 5-5-1955 by the respondents. Therein also, Bombay Municipal Corporation accepted the title of the respondents and paid compensation to the respondents. Apart from that vide Exhibit 72 i.e. letter dated 28-10-1957, Deputy Salt Commissioner, Bombay, addressed the said letter to respondent No. 2 stating therein that respondent No. 2 got the possession of 244 Acres of land purchased by him in auction sale from Revenue Department, but the Salt Department had no information as to on what date the respondent No. 2 had obtained the possession from the Revenue Department and, therefore, the respondent No. 2 was requested to communicate the date on which the respondent No. 2 had obtained the possession from the Revenue Department. This letter is written by the Salt Department i.e. appellant No. 1. From this letter, it is clear that appellant No. 1 had an information about purchase of the suit lands by respondents from appellant No. 2. Had the appellant No. 1 been the owners of the suit lands, they would have immediately taken objection to the said purchase, but they took no steps to that effect and for the first time in the present land acquisition proceedings held in 1980, they (appellant No. 1) raised their case of ownership before the Land Acquisition Officer but led no evidence whatsoever to establish their ownership and, therefore, the present First Appeals filed by the appellants against the finding of the trial Court to the effect that by the order dated 5-5-1955 the respondents have become owners of the suit lands and the appellant No. 1 have failed to prove that they are the owners of the suit lands, are liable to be dismissed and the decision given by the trial Court has to be confirmed.
21. This takes us to the other aspect i.e. valuation of the suit lands. Admittedly, in this case, the trial Court has awarded compensation at the rate of Rs. 80/- per sq. metre. According to appellants, by applying the ratio of the decisions of the Supreme Court, more particularly, the decision of the Supreme Court in the case of A. Posayya v. Special Tahsildar, as also the decision reported in V.S. Shivdevamma v. Asstt. Commissioner Land Acquisition Officer, , the trial Court ought to have awarded compensation at the rate of Rs. 50.00 to Rs. 55.00 per sq. metre. On the other hand, it was contended on behalf of the respondents that the compensation granted by the trial Court must be enhanced and they should be awarded compensation at the rate of Rs. 105.00 per sq. metre.
For fixing the rate of compensation, we have gone through the ratio of the various decisions of the Supreme Court , (para three); A.I.R. 1987 Supreme Court 1632 Krishna Yaghendra Bahadur Varu v. The Special Land Acquisition Officer City Development Trust, Bangalore, and Hasan Ali Khanbhai & Sons v. State of Gujarat, (para three). We have heard both the sides and by applying the ratio of the aforesaid decisions of the Supreme Court and taking into consideration the fact that the suit lands are hardly half-a-kilometre away from Thane Railway Station (Central Railway) and also the fact that civil construction activities in the vicinity of the suit lands are going on, we will arrive at the figure of valuation of the suit lands as follows :
22. Admittedly, appellants have led no evidence, whatsoever, as regards the valuation of the suit lands. Respondents through their witnesses produced two sale deeds. The first sale deed produced by respondents is dated 3-10-1980, which is available at Exhibit 69. Under this sale deed, the land admeasuring 483.79 sq. yards was sold at the rate of Rs. 82.00 per sq. yard, which comes to about Rs. 97.05 per sq. metre. In the second sale deed (Exhibit 70) the land admeasuring 800 Sq. yards was sold on 28-2-1981 at a rate of Rs. 90.00 per sq. yard, which comes to Rs. 107.65 per sq. metre. Both these sale deeds are in respect of the lands adjoining to the suit lands and the relevant sale deeds in respect of fixation of the market price in respect of these lands are dated 11-10-1980 and 1-1-1981 and, therefore, these sale deeds can definitely be taken into consideration for fixing the valuation of the suit lands acquired. It is also not the case of the appellants that these instances of sales are not genuine. The only objection taken by Mr. Tated, the learned Counsel appearing on behalf of the appellants, was that these sales are in respect of smaller plots of land as compared to the lands under acquisition. For that purpose, according to appellants we have to deduct 33.1/3 per cent from the average rate derived from the aforesaid sale deeds, which comes to Rs. 102.60 p. With the result, the figure of valuation comes to about Rs. 68.05 per sq. metre. The respondents contended that only 30 per cent should be deducted from the average rate. According to that, the price of the lands comes to Rs. 71.80 per sq. metre.
After hearing both the sides at length, according to our opinion, it will be reasonable to fix the price of the suit lands at that rate of Rs. 70.00 (rupees seventy) per sq. metre, more particularly, taking into consideration the fact that the suit lands are hardly half-a-kilometre away from Thane Railway Station where civil construction activities are going on.
23. The trial Court, while awarding interest at the rate of 12 per cent on the valuation of the suit lands, awarded the same from the date of the notification till the date of the award. In view of section 23(1-A) of the Land Acquisition Act, 1894, this ought to have been from the date of the Notification i.e. from 1-1-1981 till date of possession i.e. 9-12-1981. In view of the fact that the trial Court has awarded compensation to the respondents towards the acquisition of the lands, there is no need to award the amount of Rs. 14,994.00 towards the loss of business suffered by the respondents.
24. In view of this, both these appeals are partly allowed. The Judgment and decree passed by the trial Court in Land Acquisition Reference No. 90 of 1986 and challenged in this Court in First Appeal No. 257 of 1986 are set aside and instead the following order is passed :
Appellants are directed to pay to respondents an amount of Rs. 8,03,390.00 together with interest on the said amount at the rate of 12 per cent per annum from the date of publication of the Notification i.e. from 1-1-1981 to the date of taking actual possession i.e. 19-12-1981. In addition to the amount of Rs. 8,03,390.00, the appellants shall also pay to respondents 30 per cent amount of Rs. 8,03,390.00 to the respondents-claimants together with interest at the rate of 9 per cent per annum from the date of taking over the possession of the suit lands to the date of payment of the amount in Court for the first year and if not paid, then at the rate of 15 per cent per annum from the date of expiry of the period of one year till the date of payment in the Court.
Appellants are directed to pay to respondents an amount of Rs. 25,23,570.00 together with interest on the said amount at the rate of 12 per cent per annum from the date of publication of the Notification i.e. from 11-12-1980 to the date of taking actual possession i.e. 9-12-1981. In addition to the amount of Rs. 25,23,570.00, the appellants shall also pay to respondents 30 per cent amount of Rs. 25,23,570.00 to the respondents-claimants together with interest at the rate of 9 per cent per annum from the date of taking over the possession of the suit lands to the date of payment of the amount in Court from the first year and if not paid, then at the rate of 15 per cent per annum from the date of payment in the Court.
On the basis of our final order this First Appeal, the trial Court is directed to calculate the amount due under this decree and after arriving at the final figure of the decretal amount, allow the respondents to withdraw the decretal amount from the Bank, which has given the guarantee to the trial Court and return the balance of the amount, if any, lying in the Bank to the appellant No. 2 by discharging the Bank Guarantee given by the respondents. We declare that the respondents are entitled to get the interest on the amount lying in the Bank to the extent of the decretal amount passed by us in these two appeals and the concerned Bank is directed to pay such interest to the respondents.
In view of the decision as aforesaid in First Appeal No. 258 of 1994, the Cross Objections bearing Stamp No. 30578 of 1994 of the respondents are dismissed with no order as to costs.
There shall be no order as to costs in these two First Appeals Nos. 257 and 258 of 1994. However, the order of the trial Court regarding payment of proportionate costs is confirmed.
While parting with the judgment, we record our appreciation for the able assistance rendered by both the learned Counsel appearing on behalf of the respondents.
We direct the office to send writ and the record as expeditiously as possible. Certified copy expedited. In the meantime, authenticated copy duly signed by the Personal Secretary of this Court be issued.