Gujarat High Court
State Of Gujarat vs Harpal Singh Ranjit Sinh & 6 on 17 October, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/6624/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6624 of 2001
With
SPECIAL CIVIL APPLICATION NO. 4310 of 2002
With
SPECIAL CIVIL APPLICATION NO. 4733 of 2002
With
SPECIAL CIVIL APPLICATION NO. 4734 of 2002
With
SPECIAL CIVIL APPLICATION NO. 4737 of 2002
With
SPECIAL CIVIL APPLICATION NO. 4756 of 2002
With
SPECIAL CIVIL APPLICATION NO. 4759 of 2002
With
SPECIAL CIVIL APPLICATION NO. 6013 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9361 of 2001
With
SPECIAL CIVIL APPLICATION NO. 11203 of 2001
With
SPECIAL CIVIL APPLICATION NO. 10403 of 2002
With
SPECIAL CIVIL APPLICATION NO. 11576 of 2001
With
CIVIL APPLICATION NO. 3466 of 2004
In
SPECIAL CIVIL APPLICATION NO. 6624 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
================================================================
1 Whether Reporters of Local Papers may be allowed to see
Page 1 of 20
1 of 22
C/SCA/6624/2001 JUDGMENT
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 ?
================================================================
STATE OF GUJARAT....Petitioner(s)
Versus
HARPAL SINGH RANJIT SINH & 6....Respondent(s)
================================================================
Appearance:
SPECIAL CIVIL APPLICATIONS NOS. 6624 of 2001, 4733, 4734, 4737,
4756 & 4759 of 2002
MR BHARAT VYAS, ASST. GOVERNMENT PLEADER for the Petitioner(s) No.
1
MR GM AMIN, ADVOCATE for the Respondent(s) No. 1 - 7
SPECIAL CIVIL APPLICATIONS NOS. 4310 of 2002, 6013 of 2002, 9361 of
2001, 11203 of 2001, 10403 of 2002 & 11576 of 2001
MR GM AMIN, ADVOCATE for the Petitioner (s) No. 1
MR BHARAT VYAS, ASST. GOVERNMENT PLEADER for the Respondents(s)
No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 17/10/2014
ORAL JUDGMENT
Special Civil Applications Nos. 6624 of 2001, 4733, 4734, 4737, 4756 & 4759 of 2002 have been filed by the State under Article 227 of Page 2 of 20 2 of 22 C/SCA/6624/2001 JUDGMENT the Constitution of India as well as under the provisions of the Bombay Taluqdari Tenure Abolition Act, 1949 (hereinafter referred to as 'Taluqdari Abolition Act') challenging the impugned judgment and order in respective Appeals and the claimants-petitioners have preferred Special Civil Applications Nos. 4310 of 2002, 6013 of 2002, 9361 of 2001, 11203 of 2001, 10403 of 2002 & 11576 of 2001 challenging the order of the Tribunal for the prayers as prayed in detail for enhancement and quashing and setting aside the impugned order on the grounds stated in the petitions.
2. The brief facts of the case are as follows :
2.1 It is the case of the petitioner-State that the respondents are taluqdars of village Makhiav and Malasana of Taluka Sanand, Dist.
Ahmedabad. When the Bombay Taluqdari Tenure Abolition Act, 1949 came into force with effect from 15.8.1950 the estate of respondents taluqadars were abolished and the rights of taluqdars were extinguished and therefore as per sec. 7 & 14 of the Act, the application for compensation being Application No. 220/62 and 240/62 etc. before the Dy. Collector, Dholka were made (produced at Annexures-A & B). The Dy. Collector, Dholka, after inquiry, passed an award fixing compensation at the rate of Rs. 21,740/- as stated in detail in the said order dated 17.4.1976 at Annexure-C. The respondents taluqdars, being aggrieved with the order, preferred Appeal No. TEN-A-A-239 and 255 of 1976 before the Gujarat Revenue Tribunal. The Gujarat Revenue Tribunal, by common order dated 30.1.1978, set aside the award of the Dy. Collector and remanded the matter back to the Dy. Collector, Dholka for holding afresh the inquiry and fixing the compensation. The said order is at Annexure-D. Again, the Dy. Collector, Dholka, made fresh inquiry and on the basis of the information and material declared an Page 3 of 20 3 of 22 C/SCA/6624/2001 JUDGMENT award on 29.1.1990 in Compensation Application No. 220/62 & 240/62 and the interest is payable at the rate of 3% and 4.5% upto 15.7.1970 as per the decision of the Hon'ble Apex Court in the case of State of Gujarat v. Gujarat Revenue Tribunal (Thakarrani Shri Gumankunvarba Karansinhji'se case), reported in AIR 1976 SC 1721, at Annexure-E. 2.2 Therefore, the respondents preferred an appeal challenging the said order passed by the Dy. Collector being Appeal No. TEN-A-A-47/1990 before the Gujarat Revenue Tribunal which passed the impugned order dated 1.5.2000 which is assailed in the present petitions by the State on the grounds stated in the memo of petitions, inter alia, that as per the provisions of sec. 7(1)(a) of the Taluqdari Abolition Act, the compensation application by the taluqdars would be in writing on or before 1952, meaning thereby, after 31.3.1952, no compensation application or demand for compensation or new demand for compensation can be entertained. It is therefore contended that the law does not permit the Tribunal to award the interest. It is contended that this vital fact has not been appreciated by the Tribunal while passing the impugned order. Further, it is contended that the finding of the Tribunal that the respondents-taluqdars' compensation application was pending on the date of commencement of the amendment to the Land Acquisition Act and therefore the Tribunal awarding 30% solatium as compensation is contrary to the judgment of the Hon'ble Apex Court in the case of Priya Vart & anr. v. Union of India, reported in AIR 1995 SC 2471. It is contended that the Hon'ble Apex Court in a judgment reported in AIR 1989 SC 1933 in the case of Union of India and anr. v. Raghubir Singh (dead) by LRs etc. has observed that the claimants should be entitled only to the interest on solatium where the case is pending and it would not be a ground for making further enhancement. Thus, it is contended that the Tribunal has failed to appreciate the judgment of the Hon'ble Apex Court. It is specifically contended that in view of the judgment of the Apex Page 4 of 20 4 of 22 C/SCA/6624/2001 JUDGMENT Court reported in AIR 1968 SC 1418 in the case of State of Gujarat v. Vakhatsinghji V. Vaghela that in the cases under the Taluqdari Abolition Act, the solatium payable under the Land Acquisition Act would not be applicable and therefore the order of the Tribunal awarding solatium on the basis of sec. 23(2) of the Land Acquisition Act is illegal as it would not apply to the Taluqdari Abolition Act. It is contended that no demand of interest in the original application under sec. 7 and 14 of the Taluqdari Abolition Act has been made. Then the respondents cannot make claim for interest in the appeal at the appellate stage. Thus, it is contended that the judgment of the Tribunal is contrary to the observations made by the Hon'ble Apex Court and also has failed to appreciate that amendment in the Land Acquisition Act would not necessarily be applicable to cases of compensation under the Taluqdari Abolition Act.
3. An affidavit-in-reply has been filed by the power-of-attorney holder of the respondents. It is specifically contended that the present case is falling under the Taluqdari Abolition Act and the judgment reported in AIR 1976 SC 1721 is not applicable. It is contended that the amendment in the Land Acquisition Act which was brought into force on 30.4.1982 awarding solatium and interest would also be similarly applicable to any such compensation under the Taluqdari Abolition Act.
4. Heard learned AGP Shri Bharat Vyas for the petitioner-State and learned counsel Shri G.M. Amin for respondents Nos. 1-7.
5. Learned AGP Shri Vyas referred to the papers and the impugned order at Annexure-F and also referred to the provisions of sec. 7 and 14 of the Taluqdari Abolition Act. He also referred to the order at Annexure-C and submitted that the discussion about irrigational tanks has been made. He referred to the aspect of solatium and submitted that the rules do not provide for any such interest. He submitted that as observed, the rule Page 5 of 20 5 of 22 C/SCA/6624/2001 JUDGMENT making authority was conscious and though compensation may have been fixed, still, the provision is not made for payment of interest.
6. Learned AGP Shri Vyas referred to the judgment of the Hon'ble Apex Court reported in AIR 1976 SC 1721 In the case of State of Gujarat v. Gujarat Revenue Tribunal and ors., and pointedly referred to the observations made in para 13 which has been emphasized. It has been observed, "13. It is to be remembered that the awarding of solatium of 15 per cent under sub-section (2) of Section 23 of the Land Acquisition Act is a special compensation in consideration of the compulsory nature of the acquisition. In absence of an express provision such as was there in the Taluqdari Act when Jagirs were abolished and acquired as a measure of agrarian reform even without the payment of market value as compensation it is straining one's imagination to hold that the intention of the legislature was to award 15% solatium in view of the compulsory nature of the acquisition. It may be added here that because of Article 31A of the Constitution the vires of the Act was upheld by this Court in Maharaj Umeg Singh v. State of Bombay, (1955) 2 SCR 164 = (AIR 1955 SC 540)......In our opinion, therefore, the Legislature did not intend nor did it provide to give any solatium on the amount of compensation awardable to the erstwhile Jagirdar."
7. Learned counsel Shri Amin for the respondents referred to the scheme of the Taluqdari Abolition Act and pointedly referred to sec. 7 and
14. He also referred to the impugned order of the Tribunal at Annexure- F. Learned counsel Shri Amin referred to sec. 23 of the Land Acquisition Act and pointedly referred to sec. 23(2) of the Act and submitted that it refers to the market value and therefore when it is considered in context of the provisions of sec. 7 of the Taluqdari Abolition Act, the respondents would be entitled to claim compensation. He pointedly referred to the judgment of the Hon'ble Apex Court in the case of State of Gujarat v.
Page 6 of 20
6 of 22
C/SCA/6624/2001 JUDGMENT
Vakhatsinghhi Vajesinghji Vaghela, reported in AIR 1968 SC 1481, and submitted that solatium of 15% of the market value could be claimed. He referred to sec. 7 of the Taluqdari Abolition Act and submitted that compensation is paid to the taluqdars for extinguishment of rights under the Act. He pointedly referred to the explanation.
8. Learned counsel Shri Amin also correspondingly referred to the provisions of the Land Acquisition Act and also referred to sec. 24 and 26 of the said Act. He submitted that the words used are "so far as may be applied to the making of the award" would suggest that the provisions of the Land Acquisition Act would also be considered and applicable for the purpose of deciding compensation under the Taluqdari Abolition Act. Learned counsel Shri Amin submitted that as per the amendment in the Land Acquisition Act, the person is entitled to interest on the award and the said amendment has been brought by Act No. 68 of 1984. He therefore submitted that the doctrine of incorporation would be applicable.
9. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2001 SC 3516 in the case of Sunder v. Union of India, and emphasized the observations made in para 2, 22 and 28. He submitted that when the rights in the land are extinguished, the person would be entitled for compensation. He submitted that when the amendment has been brought in the Land Acquisition Act, the said amendment would automatically be applicable to the cases of compensation under the Taluqdari Abolition Act and therefore the rate of interest would also be applicable.
Page 7 of 20
7 of 22
C/SCA/6624/2001 JUDGMENT
10. Learned counsel Shri Amin has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2003) 4 SCC 200 in the case of Maharashtra State Road Transport Corporation v. State of Maharashtra and ors. and pointedly referred to the observations, "It is a well-established legislative practice to borrow the provisions of an earlier Act on a particular subject by making a broad reference to the earlier Act or some or most of its provisions therein so as to make them applicable to the relevant subject-matter dealt with by the later statute. This is done primarily as a matter of convenience in order to avoid verbatim repetition of the provisions of the earlier Act. Very often such reference is followed by certain modifications subject to which the earlier Act should apply. Those modifications may be few or numerous. When such legislative device is adopted, the relevant provisions of the earlier Act will apply mutatis mutandis to the matters governed by the later Act. But, the difficulty in construction would arise when the earlier Act is repealed or amended/modified...."
11. He has also referred to the judgment of the Hon'ble Apex Court reported in AIR 2002 SC 3499 in the case of Nagpur Improvement Trust v. Vasantrao and ors. and referred to the observations made in Head Note 'C'. He has also referred to the observations made in para 31 and 32. Para 31 reads as under:
"31. We shall now proceed to consider whether the provisions of the Land Acquisition Act, 1894 as modified by the State Acts stand incorporated in the State Acts or whether there is a mere reference or citation of the Land Acquisition Act in the State Acts. The law on the subject is well settled. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been bodily transposed into it. The incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later. But this must be distinguished from a referential legislation which merely contains a Page 8 of 20 8 of 22 C/SCA/6624/2001 JUDGMENT reference or the citation of the provisions of an earlier statute. In a case where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second. The later Act along with the incorporated provisions of the earlier Act constitute an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act. However, where in later Act there is a mere reference to an earlier Act, the modification, repeal or amendment of the statute that is referred, will also have an effect on the statute in which it is referred. It is equally well settled that the question whether a former statute is merely referred to or cited in a later statute, or whether it is wholly or partially incorporated therein, is a question of construction."
Further, referring to the earlier judgment of the Hon'ble Apex Court reported in AIR 1998 SC 1028 in the case of U.P. Avas Evam Vikas Parishad v. Jaimal Islam, he has emphasized, "In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable."
12. He has therefore submitted that the amendment in the Land Acquisition Act would mutatis mutandis be applicable for the purpose of deciding compensation under the Taluqdari Abolition Act and therefore the judgment and award of the Tribunal is just and proper. He has also submitted that in exercise of discretion under Art. 227 the court may not disturb the findings if there is no error apparent on face of the record which could call for any interference.
13. In rejoinder, learned AGP Shri Vyas has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1995 SC 2471 in the case of Priya Vart and anr. v. Union of India and also referred to the judgment reported in AIR 1989 SC 1933 in the case of Union of India v.
Page 9 of 20
9 of 22
C/SCA/6624/2001 JUDGMENT
Raghubir Singh (dead) by LRs etc. He pointedly referred to the
observations made in para 32, 33 and 34. and submitted that since the two statutes are different, merely because some amendment in the payment of interest is made in the Land Acquisition Act, it would not be applicable to the claim for compensation under the Taluqdari Abolition Act. He submitted that when two statutes are totally different when merely a reference is made with regard to the manner in which the procedure should be followed for deciding the compensation, it would not be justified to make claim for interest. He referred to the provisions of sec. 7 and 14 of the Taluqdari Abolition Act and submitted that, on the contrary, it refers to the fact that it has been provided that the provisions of the Land Acquisition Act would stand excluded.
14. Learned counsel Shri Amin referred to the papers and tried to submit referring to the impugned order and the papers that the interest is payable. He submitted that the interest is made a statutory right after the amendment in the Land Acquisition Act. Therefore, learned counsel Shri Amin submitted that even if interest is not claimed or demanded it would be payable as the provisions of the Land Acquisition Act would mutatis mutandis apply to the cases of compensation under the Taluqdari Abolition Act for which he again referred to the explanation to sec. 7 to support his submission.
15. In view of these rival submissions, it is required to be considered whether the present petition can be entertained.
16. The order passed by the Gujarat Revenue Tribunal is challenged in the present petitions by the State particularly with regard to grant of solatium and interest. The tribunal has made reference to sec. 23(2) of Page 10 of 20 10 of 22 C/SCA/6624/2001 JUDGMENT the Land Acquisition Act which has been amended. Learned counsel Shri Amin has also made the claim for solatium based on the amendment in the Land Acquisition Act by which sec. 23(2) has been amended. Submissions have been made by learned counsel Shri Amin referring to the doctrine of incorporation. However, a close look at the observations in the judgment which has been relied upon by learned counsel Shri Amin would make it very clear that the observations have been made that when the new Act has been made in place of the repealed Act, the provisions which were already existing in the repealed Act could be brought in or incorporated for the purpose of interpretation of subsequent statute which has replaced the earlier statute. A reference is made to the judgment of the Hon'ble Apex Court reported in AIR 2002 SC 3499 in the case of Nagpur Improvement Trust v. Vasantrao and ors. referring to th doctrine of incorporation which has been much emphasized by learned counsel Shri Amin and which has been quoted above. It has been further observed, "It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition."
17. Again, referring to the judgment reported in AIR 1998 SC 1028 in the case of U.P. Avas Evam Vikas Parishad v. Jainul Islam and anr. it has been observed, "But if it is a legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated."
Page 11 of 20
11 of 22
C/SCA/6624/2001 JUDGMENT
It is also quoted,
"If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen, or printed in it."
It is further observed, "It is also well settled that the question as to whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute in which reference is made to the earlier decision and other relevant circumstances."
A reference can also be made to the observations made in para 50 of the judgment, wherein it has been observed that the provisions of the Land Acquisition Act would be made applicable to the State Acts for the purpose of deciding compensation. Further, it has also been observed that in respect of acquisition under some other Act, the solatium is not payable. It has specifically referred to the provisions of sec. 53 of the Bombay Town Planning Act referring to the earlier judgment reported in AIR 1986 SC 468 in the case of Prakash Amichand Shah v. State of Gujarat and ors. It is observed, "In these circumstances with a view to save the law from the vice of arbitrary and hostile discrimination, the provisions must be construed to mean, in the absence of anything to the contrary, that the provisions of the Land Acquisition Act as amended by the 1984 Act relating to determination and payment of compensation would apply to acquisition of land for the purposes of the State Acts."
18. It has been observed in a judgment reported in AIR 2001 SC 3516 in the case of Sunder v. Union of India with regard to Land Acquisition Page 12 of 20 12 of 22 C/SCA/6624/2001 JUDGMENT Act and payment of solatium. It is observed, "22. Compulsory nature of acquisition is to be distinguished from voluntary sale or transfer. in the latter, the landowner has the widest advantage in finding out a would-be buyer and in negotiating with him regarding the sale price. Even in such negotiations or haggling normally no landowner would bargain for any amount in consideration of his disinclination to part with the land. The mere fact that he is negotiating for sale of the land would show that he is willing to part with the land. The owner is free to settle terms of transfer and choose the buyer as also to appoint the point of time when he would be receiving consideration and parting with his title and possession over the land. But in the compulsory acquisition the landowner is deprived of the right and opportunity to negotiate and bargain for the sale price. It depends on what the Collector or the Court fixes as per the provisions of the Act. The solatium envisaged in sub-section (2) "in consideration of the compulsory nature of the acquisition" is thus not the same as damages on account of the disinclination to part with the land acquired."
It has been also observed, "The Legislature, therefore, made a distinction between compensation under S. 23(1) and the additional amount on such market value as solatium in consideration of compulsory nature of acquisition. In other words, S. 28 does not comprehend payment of interest on solatium when it expressly mentions payment of interest on compensation under S. 28 referable to S. 23(2) of the Act."
19. Thus, it is well-accepted that compensation has to be decided with reference to the provisions of the statute. The provisions of one statute cannot be incorporated in another statute like the provisions of the Land Acquisition Act cannot be applicable for the purpose of determination of compensation or the issue under the Taluqdari Abolition Act as sought to be canvassed. As stated above, the doctrine of incorporation has a reference to the new Act which has been brought into force on repeal of Page 13 of 20 13 of 22 C/SCA/6624/2001 JUDGMENT the earlier Act and in that context observations have been made that some of the provisions can be incorporated. At the cost of repetition, it is to be stated that the Land Acquisition Act or the provisions thereof may be attracted when the State Act for acquisition of the land as prevailed was missing or was not providing on certain aspects the Land Acquisition Act could be relied upon. However, as stated above, for the purpose of determining the compensation or the procedure under the Town Planning Act would not have a reference to the provisions of the Land Acquisition Act. In the same way, for the purpose of deciding an issue under the Taluqdari Abolition Act, the provisions of the Land Acquisition Act for the purpose of solatium would not be attracted.
20. One more aspect which is required to be considered is that in case of acquisition of land there is compulsory acquisition and deprivation of the land which gives rise to claim for compensation as provided under the statute, namely, Land Acquisition Act, whereas Taluqdari Abolition Act does not refer to any such deprivation or taking away of any land. A useful reference can be made to the observations made by the Hon'ble Apex Court in a judgment in the case of State of Gujarat v. Gujarat Revenue Tribunal and ors. (supra), referring to the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1954 . It has been observed referring to the scheme of both the Acts, "13. It is to be remembered that the awarding of solatium of 15 per centum under sub-section (2) of Section 23 of the Land Acquisition Act is a special compensation in consideration of the compulsory nature of the acquisition. In absence of an express provision such as was there in the Taluqdari Act when Jagirs were abolished and acquired as a measure of agrarian reform even without the payment of market value as compensation it is straining one's imagination to hold that the intention of the legislature was to award 15% solatium Page 14 of 20 14 of 22 C/SCA/6624/2001 JUDGMENT in view of the compulsory nature of the acquisition. It may be added here that because of Article 31A of the Constitution the vires of the Act was upheld by this Court in Maharaj Umeg Singh v. State of Bombay, (1955) 2 SCR 164 = (AIR 1955 SC 540). As we have pointed out above there is no reference to Section 11 of the Land Acquisition Act in Section 13 (2) of the Act. The intention of the legislature that it did not intend to give any solatium is clear from the fact that unlike the Explanation appended to Section 7 (1) of the Taluqdari Act in the Explanation to Section 11 of the Jagirs Abolition Act reference is made to sub-section (1) only of Section 23 of the Land Acquisition Act. Similar is the provision in sub- section (2) of Section 14. To crown all, in Sec. 15 where the provisions of the Land Acquisition Act have been applied to the making of an award, care has been taken to say that every award made under Section 13 or 14 shall be in the form prescribed in Section 26. In our opinion, therefore, the Legislature did not intend nor did it provide to give any solatium on the amount of compensation awardable to the erstwhile Jagirdar."
However, a close look at the Explanation to provisions of sec.7 of the Taluqdari Abolition Act which is referred to and relied upon, provide that the provisions of the Land Acquisition Act would be applicable for the purpose of determining the market value and the procedure may be followed. The Explanation reads, "For the purposes of this section, the "market value" shall mean the value as estimated in accordance with the provisions of sections 23 and 24 of the Land Acquisition Act, 1894 (V of 1984), in so far as such provisions may be applicable."
Thus, it refers to two aspects: One, making of award as per the procedure and provisions of the Land Acquisition Act, and two, the manner in which the market value can be ascertained. Again, it has a reference to the provisions of sec. 23 and 24 of the Land Acquisition Act.
Page 15 of 20
15 of 22
C/SCA/6624/2001 JUDGMENT
21. A useful reference can be made to the judgment of the Hon'ble Apex Court in the case of State of Gujarat v. Vakhatsinghji Vajesinghjhi Vaghela (dead) by his legal representatives and ors. (supra). In this judgment, referring to the very provisions of the Taluqdari Abolition Act, observations have been made, "9. Section 7 (1) gives compensation to taluqdars for extinguishment of rights in any property under Section 6. The Collector is required by Section 7 (1) (b) to make an award in the manner prescribed in Section 11 of the Land Acquisition Act, 1894. The Collector has to make an award of compensation under Section 11 and having regard to Sec. 15 in determining the amount of compensation, he is guided by the provisions of Sections 23 and
24. Section 23 (1) requires an award of the market value of the land. Section 23 (2) requires an additional award of a sum of fifteen per centum on such market value, in consideration of the compulsory nature of acquisition. It follows that under Section 7 (1) (b) of the Abolition Act read with section 11 of the Land Acquisition Act, the taluqdars are entitled to receive as compensation the market value of all rights in any property extinguished under Section 6 and in addition a sum of 15 per centum on such market value. This right is subject to the conditions and exceptions enumerated in sub clauses (i), (ii) and (iii) of Section 7 (l) (b). In cases falling under clause (i) and in some cases under clause (ii) the amount of compensation is limited. In cases falling under Clause (iii) and in some cases under Clause (ii) the amount of compensation is the "market value" which according to the explanation to Section 7 (1) means the value estimated in accordance with Sections 23 and 24 of the, Land Acquisition Act, 1894. The value so determined includes the solatium of 15 per centum payable under sub-section (2) of Section 23. Where the legislature intended to exclude the application of sub-section (2) of Section 23, it has said so, as in section 14 (2) under which compensation is determined in accordance with the provisions of sub-section (1) of Sections 23 and 24. It follows that the taluqdar is entitled to the solatium of 15 per centum on the market value, (1) under the main part of Section 7 (1) (b) subject to the provisions the several sub-clauses thereof; (2) in cases falling under Clause
(iii) of Section 7 (1) (b) and (3) in cases under Clause (ii) of S. 7 (1) (b) where market value is awarded. The direction of the High Page 16 of 20 16 of 22 C/SCA/6624/2001 JUDGMENT Court is modified accordingly."
22. Again, in view of the explanation to sec. 7 of the Taluqdari Abolition Act specifically providing with reference to the provisions of the Land Acquisition Act, the compensation has to be calculated as per the Land Acquisition Act.
23. In the facts of the case, by virtue of explanation to sec. 7 of the Taluqdari Abolition Act, the provisions of the Land Acquisition Act are required to be considered for the purpose of arriving at the market value. The reliance placed by the learned AGP on the judgment of the Hon'ble Apex Court in the case Raghubir Singh (supra) and also the judgment in the case of Priya Vart (supra) that it would be prospective is required to be considered in background of the facts narrated. Even in these judgments observations have been made that amendments are not retrospective. However, the issue was whether it could apply to the pending proceedings, meaning thereby, pending appeal as the appeal is a continuation of proceedings and it has been observed, "....The learned Judges proceeded to apply the principle that an appeal is a continuation of the proceedings initiated before the Court by way of difference under S. 18, but, in our opinion, the application of a general principle must yield to the limiting terms of the statutory provision itself."
Therefore, while considering these aspects what is required to be considered is the stage of the proceedings. In the facts of the case, original proceedings were pending when the amendment in the Land Acquisition Act was brought into force and therefore the claim for solatium on the basis of the amendment in sec. 23(2) of the Land Page 17 of 20 17 of 22 C/SCA/6624/2001 JUDGMENT Acquisition Act would also be justified even considering the observations made by the Hon'ble Apex Court as stated above.
24. Therefore, though there is no total deprivation of the land, the rights of the taluqdars are affected for which the explanation to sec. 7 of the Taluqdari Abolition Act refers to the compensation and the manner in which it could be arrived at. Therefore, though the submission made by learned counsel Shri Amin referring to the doctrine of incorporation may not be applicable as stated herinabove, however, the provisions of the Land Acquisition Act have to be read into the provisions of the Taluqdari Abolition Act for the purpose of deciding the compensation. Therefore, apart from the doctrine of incorporation, by virtue of the specific explanation to sec. 7 of the Taluqdari Abolition Act and also the judgment as referred to hereinabove clearly providing for compensation including solatium has to be accepted.
25. The emphasis made by learned AGP Shri Vyas referring to the observations of the Hon'ble Apex Court in the case of Priya Vart (supra) in para 4 and 5 that the judgment in the case of Raghubir Singh (supra) would be applicable with full force and therefore the compensation as per sec. 23(2) of the Land Acquisition Could could not be claimed (after the amendment) as it was not originally claimed is misconceived and cannot be accepted as discussed hereinabove. As stated above, the Hon'ble Apex Court in the case of Priya Vart (supra) has clearly observed in para 5 that the claimant could claim the benefit if the cases are pending for decision, meaning thereby, not the appeal or other proceedings before higher courts. It has been specifically emphasized that pendency of the appeal would not be a ground for making further enhancements. In the facts of the case, the cases were pending for decision and therefore even as per the observations made by the Hon'ble Apex Court in its judgment in the Page 18 of 20 18 of 22 C/SCA/6624/2001 JUDGMENT case of Raghubir Singh (supra) the claim would be justified on the basis of the amendment in sec. 23(2) of the Land Acquisition Act.
26. Therefore, the petitions filed by the State being Special Civil Applications Nos. 6624 of 2001, 4733, 4734, 4737, 4756 & 4759 of 2002 deserve to be dismissed and are accordingly dismissed and the petitions filed by the claimants-petitioners being Special Civil Applications Nos. 4310 of 2002, 6013 of 2002, 9361 of 2001, 11203 of 2001, 10403 of 2002 & 11576 of 2001 for enhancement and the claim for compensation of solatium as per the amendment in the Land Acquisition Act deserve to be allowed and accordingly stand allowed to the aforesaid extent. However, the actual calculation of the compensation based on the material regarding irrigable land, yield etc. does not call for any interference. Rule is accordingly discharged in the petitions filed by the State and made absolute in Special Civil Applications Nos. 4310 of 2002, 6013 of 2002, 9361 of 2001, 11203 of 2001, 10403 of 2002 & 11576 of 2001.
27. In view of dismissal of the petitions, Civil Application No. 3466 of 2004 filed in Special Civil Application No. 6624 of 2001 does not survive and the same is accordingly disposed of.
The Registry is directed to place a copy of the judgment in each of the matters.
Page 19 of 20 19 of 22 C/SCA/6624/2001 JUDGMENT (RAJESH H.SHUKLA, J.) (hn) Page 20 of 20 20 of 22 C/SCA/6624/2001 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 6624 of 2001
[On note for speaking to minutes of order dated 17/10/2014 in C/SCA/6624/2001 ] With SPECIAL CIVIL APPLICATION NO. 4310 of 2002 With SPECIAL CIVIL APPLICATION NO. 4733 of 2002 With SPECIAL CIVIL APPLICATION NO. 4734 of 2002 With SPECIAL CIVIL APPLICATION NO. 4737 of 2002 With SPECIAL CIVIL APPLICATION NO. 4756 of 2002 With SPECIAL CIVIL APPLICATION NO. 4759 of 2002 With SPECIAL CIVIL APPLICATION NO. 6013 of 2002 With SPECIAL CIVIL APPLICATION NO. 9361 of 2001 With SPECIAL CIVIL APPLICATION NO. 11203 of 2001 With SPECIAL CIVIL APPLICATION NO. 10403 of 2002 With SPECIAL CIVIL APPLICATION NO. 11576 of 2001 With CIVIL APPLICATION NO. 3466 of 2004 In SPECIAL CIVIL APPLICATION NO. 6624 of 2001 With CIVIL APPLICATION NO. 7247 of 2004 In SPECIAL CIVIL APPLICATION NO. 6624 of 2001 ======================================================== STATE OF GUJARAT....Petitioner(s) Versus HARPAL SINGH RANJIT SINH & 6....Respondent(s) ======================================================== Appearance:
GOVERNMENT PLEADER for the Petitioner(s) No. 1 MR GM AMIN, ADVOCATE for the Respondent(s) No. 1 7 ======================================================== Page 1 of 2 21 of 22 C/SCA/6624/2001 ORDER CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 09/01/2015 ORAL ORDER Present speaking to minutes is not pressed by learned Advocate Shri G. M. Amin at this stage with a liberty to move in case of difficulty.
Accordingly, present speaking to minutes stands disposed of.
(RAJESH H.SHUKLA, J.) Tuvar Page 2 of 2 22 of 22