Gujarat High Court
Ismail Ibrahim Koya And Ors. vs Officer On Special Duty (Land ... on 10 July, 1996
Equivalent citations: (1997)3GLR2226
JUDGMENT B.C. Patel, J.
1. In all these petitions petitioners have challenged the proceedings concluded under the Land Acquisition Act, 1894 (thereinafter referred to as "the Act").
2. xxx xxx xxx xxx xxx xxx
3. It is clear from the contents of the petitions that all the petitioners have handed over possession of the lands after executing agreement and before publication of notification under Section 4 of the Act Since then the Corporation is in possession and there is industrial development.
The relevant dates and amounts of compensation are mentioned hereunder:
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S.C.A. Possession Notification Notification Award dated Amount per
No. ession u/s. 4 of the u/s. 6 of the Hectare (Rs.)
handed over Act Act
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5204/86 April 11-6-1981 29-12-1983 28-4-1986 27,180/- 1980 6004/86 Dec. 24-9-1981 13-12-1983 March 33,358/- 1980 13-5-1982 1986 6756/86 April 11-6-1981 29-12-1983 4-8-1986 27,180/- 1980 5594/89 Later 13-12-1982 30-1-1986 16-7-1987 41,265/- part (Agreed sum was Rs. of 38,300/- but later on 1981 by a further agreement enhanced.) 5589/86 April/ 6-2-1983 27-9-1985 (Till this date May award is not produced 1980 by either party, but it is stated that award is made). 7428/88 June 27-8-1981 13-12-1983 27-3-1986 33,358/- 1980 8107/88 - 2-6-1983 4-4-1985 26-2-1986 49,420/- (Date not given in the petition and kept blank)
4. In all these cases there is no dispute about issuance of notifications under Sections 4 and 6 of the Act.
5. The contentions raised by the learned Counsel are:
(1) the award as declared by the Special Land Acquisition Officer is not in accordance with law and is illegal as the land was acquired prior to notification under Section 4 of the Act: the agreement which is alleged to have been executed by each petitioner is not an agreement in the eyes of law as signatures have been obtained by misrepresentation; that inspite of the order passed by this Court, the Special Land Acquisition Officer has not issued notice to each petitioner to determine whether the agreement is genuine or not; that in any case the amount of compensation ought to have been paid to the petitioners at the market rate prevailing on the date of notification under Section 4 and as the possession is taken before issuance of notification under Section 4 it was the bounden duty of the Special Land Acquisition Officer to re-determine the price as on the date of notification under Section 4, and (2) The Special Land Acquisition Officer has erred in rejecting the application of each petitioner for making reference to Civil Court under Section 18 of the Act.
6. The facts being almost similar in all the petitions, at the request of the learned Advocates we have not discussed the facts of each petition. We have taken facts from Special Civil Application No. 6756 of 1986 and the reply of the respondents in Special Civil Application No. 6004 of 1986 and dispose of these petitions by this common judgment.
7. The petitioners who were cultivating agricultural lands in Bharuch District were approached by officers of Gujarat Industrial Development Corporation (hereinafter referred to as the Corporation) and informed that possession of their lands is to be taken immediately for which in advance, money will be paid. It is averred in the petition that threats were administered to the effect that if possession of the lands is not parted with in favour of the Corporation, possession would be taken without payment of advance amount. It is averred in the petition that officers of the Corporation impressed upon the petitioners that the Corporation is a powerful body and is a State and it can always take possession of lands in question. As averred in the petition, the petitioners are poor farmers and not conversant with Court procedures and legal aspects involved in the matter. It is averred that petitioners being ignorant agriculturists and on account of threats administered by officers of the Corporation, signed printed forms with blanks, without reading the contents of it or understanding the same. It is averred in the petition that the contents of the agreement were not explained, and certain amounts were paid to the petitioners and petitioners delivered possession of the lands in question to the officers of the Corporation somewhere in April 1980. Thus, in sum and substance, the contention raised in the petition is that the officers of the Corporation obtained the signatures and took the possession somewhere in 1980.
8. It is required to be noted that in the petition nowhere the date is mentioned. It is further required to be noted that amount received by each petitioner is also not mentioned. It is contended that notification under Section 4 of the Act was published on 24-9-1981 vide Annexure A. Some of the petitioners, thereafter by giving notice to the Corporation, conveyed that by misrepresentation their signatures were obtained on blank forms and that they had not filled in blanks and they do not admit the contents of the same and thus lodged their protest. Specimen copy of such protest is at Annexure B, which is a notice by an Advocate of Ankleshwar. In the notice there is a reference to misrepresentation of facts and that the signatures were obtained without explaining the same, on blank agreements. There is no mention about the date on which possession was given or the amount received by each petitioner. It appears that there was an inquiry under Section 5A of the Act but in the petition there is nothing to indicate that before the inquiry officer such claim was made. But we may take it as the same is addressed to Officer on Special Duty (Land Acquisition), G.I.D.C, Ashram Road, Ahmedabad. The same has been received by that officer. It appears that notification under Section 6 of the Act came to be issued which was followed by notice dated 9-7-1984 under Section 9 of the Act. It appears that in between some of the petitioners moved this Court by filing Special Civil Application contending that even though the lands are acquired since years the Land Acquisition Officer was not passing award under Section II of the Act. Before the Division Bench of this Court, a statement was made on behalf of the Special Land Acquisition Officer that award will be declared, and accordingly the undertaking was noted. Soon thereafter another petition was filed by the Corporation inter alia contending that by practising fraud upon the Court order for declaring the award is obtained and there is no question of award as is sought to be declared. It was pointed out that in view of agreement which is valid, Collector has to pass an award under Section 11(2) of the Act on the basis of binding agreement between the parties and is not required to pass award under Section 11(1) of the Act. The Division Bench of this Court (Coram : S.B. Majmudar & I.C. Bhatt, JJ.) on December 26, 1985 passed order as under :
In these circumstances, the only proper order which can be passed in these proceedings is that the Land Acquisition Officer while deciding the question whether the award should be declared on merits will also consider the contention of acquiring body, that is, petitioner, whether there was any binding agreement between the parties and whether the award is to be declared under Section 11(2) of the Act pursuant to the alleged agreement. If the Collector is satisfied that there was any such agreement then only the question of passing award under Section 11(2) would arise, otherwise, he will have to decide the matter purely on merits and declare the award in accordance with law under Section 11(1) of the Act.
9. It appears that thereafter the Special Land Acquisition Officer declared the award on 28-4-1986. It appears from the award that the petitioners agreed with the Corporation to accept Rs. 27,180/- per hectare and have accepted the amount in advance. Not only that, but the possession was also handed over to the Corporation. At the time of hearing, on behalf of the petitioners, claim was made that per hectare compensation should be paid between Rs. 1,25,000/- and Rs. 2,50,000/- and they were not agreeable to accept the price as agreed. It is required to be noted that before the Special Land Acquisition Officer, no affidavit has been filed indicating that their signatures were taken on the blank agreement and there was misrepresentation or that they were not made to understand the contents of agreement. It is required to be noted that possession was parted with after taking 85% of the compensation amount and for pretty long time the petitioners have kept mum and only after issuance of notification under Section 4 of the Act notice has been issued through an Advocate. If the amount of consideration in lieu of compensation is accepted and possession is parted with without any protest then one can safely infer that raising any protest or objection at a later stage is an afterthought and a product of a fertile mind with an oblique motive. The Special Land Acquisition Officer declared the award, Annexure F. and in respect of persons who did not execute the agreement, a separate procedure has been followed by him for which there is reference in the award itself. Now, this award passed by the Special Land Acquisition Officer is the subject-matter. After the award, applications were tendered for making reference under Section 18 of the Act which have been rejected by order dated 2-9-1986 inter alia informing that as award is declared under Section 11(2) of the Act reference cannot be made. A party who had executed agreement in writing, accepted the compensation without protest at that time and delivered the possession cannot be permitted to rescind the contract unilaterally.
10. Mr. Desai, Learned Advocate for the petitioners, submitted that in view of Section 4 of the Act the proceedings can be initiated only after the date of notification and the persons will be entitled to have the price of the land prevailing in the market as on the date of notification and not prior thereto or subsequent thereto. It is submitted that the possession is taken in April 1980 but notification is issued in August 1981 and, therefore, price prevailing in the market on the date of the notification, i.e., 6-9-1981 should be offered to the petitioners. His contention is that as the agreement which is executed by the petitioners in favour of the Corporation being an agreement not binding to the petitioners, the Special Land Acquisition Officer should have passed the award by following procedure laid down under the Act.
11. It is required to be noted that there is an agreement about which there is no dispute. The only dispute raised is with regard to the manner in which signatures were obtained in the agreement, i.e., by misrepresentation. It would be pertinent to note that till the date of notification none of the petitioners have raised any objection. The date of agreement, according to the petitioners, is somewhere in April 1980 and the notification is published in the month of June 1981. Therefore, it is clear that for more than a year they have kept mum and accepted and enjoyed fruits of the amount of compensation received from the Corporation without any protest. It is, therefore, clear that their protest is an afterthought. Had the protest and grievance been genuine and bona fide, then immediately after taking possession, protest would have been lodged before the competent authority, i.e., police officers or superior officers of the Corporation or to the Collector. The contention that the petitioners signed blank agreement cannot be accepted for the above reason. Even in the notice and in the petition nowhere it is mentioned as to what amount is received by each petitioner. It is required to be noted that the signatures on the agreements are not denied but what is stated is that the contents were not explained. It is difficult to believe, as it was not disclosed for a period of more than one year (to be precise, 15 months). Mr. Desai contended that this Court passed order directing the Special Land Acquisition Officer to make inquiry in this behalf and therefore, it was his bounden duty to issue notice to each petitioner We have reproduced the relevant portion of the order of this Court. The Court has not called upon the Special Land Acquisition Officer to issue notice hut he was simply called upon to pronounce the award under Section 11(2) if he is satisfied that there was an agreement. If he is not satisfied, the Court directed that he shall decide the matter purely on merits and shall declare the award in accordance with law under Section 11(1) of the Act. After this order, none of the petitioners filed affidavit before the Special Land Acquisition Officer indicating the facts and circumstances under which they executed the documents. It was within their knowledge as to on what date the agreements were signed, in whose presence agreements were signed and what amount was taken by them. But the petitioners have chosen to keep mum on this point and before the Special Land Acquisition Officer the only grievance made is that the amount should be paid at the rate of Rs. 1,25,000/- to Rs. 2.50.000/- per hectare. It is not stated that signatures have been obtained on misrepresentation of facts. The Special Land Acquisition Officer has specifically mentioned that no document has been produced. Mr. Desai, learned Advocate for the petitioners, has submitted that in absence of issuance of notice there was no question of production of any document. But as indicated above, it was for the petitioners to ventilate their grievances without waiting for any notice. Hence, the contention has no force.
12. If the grievance of the petitioners was that signatures were obtained on documents which were not complete or there were blanks or the signatures were obtained by misrepresentation then it was necessary for them to file an affidavit and to lead evidence in this behalf. In absence of any evidence in this behalf, it would not be possible for the Special Land Acquisition Officer to come to conclusion that documents were executed on account of inducement or misrepresentation or false representation. We would say that if such a stand was taken at the inquiry, before the Special Land Acquisition Officer with relevant material, the matter would have a different complexion. But is appears that the stand now taken is nothing but an afterthought and there is nothing on the record to show that they did file any protest at the time when they executed the documents or took the money and handed over possession to Corporation. The officer has observed that merely the claimants have made a demand of Rs. 1,25,000/- to Rs. 2,50,000/- per hectare and no document was produced. If the petitioners thought it proper, at that time they should have filed affidavits indicating in details, giving names of officers, the date when they approached, the date of agreement, the date of handing over possession, the amount received and the explanation that why they did not protest for a period of 15 months after parting with possession and accepting money and why a protest was lodged after publication of notification under Section 4 of the Act. Under these circumstances, it cannot be said that satisfaction of the Collector/Special Land Acquisition Officer, that there was an agreement, is vitiated. Similarly, there is nothing on record to suggest that in view of the agreements under Section 11(2) of the Act, making of award is bad, illegal or contrary to provisions of law.
13. Mr. Desai vehemently submitted that in these cases the notifications have been published almost after one year and if the agreements would have been executed at the time of notifications or soon after the notifications, the matter would stand on a different footing because the claimants would get the price as on that date. If the language used in Section 11(2) of the Act refers to only the time and close proximity of notification under Section 4 of the Act, then Mr. Desai's contention possibly could have been accepted. Prior to Central Act No. 68 of 1984, Sec 11(2) of the Act in State of Gujarat was as under :
11. (2) Notwithstanding anything contained in Sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him are agreeable to the award which he proposes to make under this section the Collector may without making further enquiry, require such persons to execute an agreement in the form prescribed by the State Government and make an award according to the terms of such agreement.
Thus, reading the language of Section 11(2) as it stood, after the notification person must appear before Collector and should be agreeable to the proposed award, then, on execution of an agreement in terms of such agreement, award can be made. But in view of amendment in Sub-section (2) of Section 11 by Central Act No. 68 of 1984, Section 11(2) since 1984 reads as under :
11. (2) Notwithstanding anything contained in Sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
Thus, it is very clear that in view of the language used in Sub-section (2) of Section 11 of the Act, Collector should be satisfied at any stage of proceedings that the persons have agreed in writing at any time, not necessarily after the notification or before the Collector. The agreement could be in writing even before the notification when Collector would not be in picture. Where holder of the lands on executing a document agrees to a price and on receipt of the major share of that price has handed over the possession of lands with full knowledge that acquisition proceedings will commence at a future date, the relevant date for determining the market price is the date of agreement and not the notification that may be published. On the date of execution of an agreement amount is paid and only the procedure under the Act is to be completed. Once having agreed to accept the market price on the date of agreement, and having accepted the same and enjoyed the fruits of the same, one is estopped from raising a plea that he should be offered the compensation considering the market price of lands on the date of notification. Had the price not been paid, claimants may claim interest in accordance with law.
14. Sub-section (2) of Section 11 of the Act starts with non-obstante clause "Notwithstanding anything contained in Sub-section (1)". In Sub-section (1) of Section 11, inquiry is contemplated. The Collector has to inquire into the objections which any person interested has stated pursuant to a notice given under Section 9 as to the measurements made under Section 8, and into the value of the land on the date of the publication of the notification under Section 4, Sub-section (1), and into the respective interests of the persons claiming the compensation. He has to make an award under his hand of:
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land; and
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him.
Thus, reading the non-obstanie clause in Sub-section (2) of Section 11, it is very clear that if the Collector is satisfied about the agreement having been executed by the parties, then he may dispense with the inquiry under Sub-section (1) of Section 11 of the Act. In the case of Union of India v. C.M. Kokil AIR 1984 SC 1022, the Apex Court has observed as under :
It is well-known that a non-ohstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
Thus, in view of the non-obsiante clause, if there is contrary provision, the same is to be avoided. Therefore, in view of Sub-section (2) of Section 11, if there is an agreement by the claimant and the acquiring body, it is open for the Collector to declare the award under Section 11(2) of the Act in terms of such agreement and he is not required to determine the compensation in the manner laid down in the Act.
15. We would like to refer the binding decisions of the Supreme Court in the case of Ishwarlal Premchand Shah v. State of Gujarat . That was a case where before notification under Section 4 of the Act was issued, the owners and G.I.D.C. have entered into agreements in December 1980 whereby the owners agreed to part with possession of their lands so as to enable G.I.D.C. to establish Udyog Nagar thereon. Under the said agreements, G.I.D.C. was permitted to enjoy continuous possession of those lands till the process of acquisition under the Act was to be completed. Separate agreements duly executed between the parties again after notification under Section 4, determining compensation Rs. 22,857/- per hectare inclusive of solatium were presented before the Collector. On being satisfied about the voluntary nature of the agreements, the Collector passed the award in terms of those agreements. It was contended in these circumstances that essential requirement of Sub-section (2) of Section 11 of the Act as applicable in the State of Gujarat was not complied with as the agreement was not in Form No. 14. The Apex Court has observed as under:
In a private sale between a willing vendor and a willing vendee, parties would arrive at consensus to pay and receive consolidated consideration which would form the market value of the land conveyed to the vendee. For public purpose, compulsory acquisition under the Act gives absolute title under Section 16 free from all encumbrances. Determination of the compensation would be done under Section 23(1) on the basis of market value prevailing as on the date of the publication of the notification under Section 4(1). It would, therefore, be open to the parties to enter into a contract under Section 11(2), without the necessity to determine compensation under Section 23(1) and would receive market value at the rates incorporated in the contract signed under Section 11(2) in which event the award need not be in Form 14.
Thus, in view of this, it is clear that where the parties have entered into an agreement, then in that case, the agreed price is to be seen and not the market price as on the date of the notification.
16. Reading the Apex Court's judgment in lshwarlal's case (supra), it is clear that it is permissible for the Stale to issue notification under Section 4 of the Act even in cases where the acquiring authority has entered into an agreement earlier. The Court has pointed out that Form No. 14 would apply to the cases where the owners and the persons interested in the land appear before the Collector and express their willingness to accept an agreed amount as compensation. Reading the judgment, it is clear that if an agreement is executed earlier, then in that case it is not necessary that the agreement should be in prescribed Form No. 14 because when they entered into agreement they were not before the Collector and, therefore, even though agreement is not in the prescribed Form, parties are not permitted to resale. In view of this judgment, it is very clear that it is open for the parties to enter into an agreement even prior to issuance of notification under Section 4 of the Act.
17. The claimants may think it proper to enter into an agreement with a view to have the fruits immediately. The claimants may think it just and reasonable to enter into an agreement to avoid long drawn process for acquisition of land under the Act, i.e., publication of notification under Section 4, inquiry, publication of notification under Section 6, proceedings under Sections 9 and 11 and even thereafter if claimants are not satisfied with the compensation which may be awarded to them they may be required to file applications for reference, and the Court on evidence may determine the amount of compensation and yet if they are not satisfied, again they may have to prefer appeals before the appellate Court. Thus, there would be lengthy procedure with uncertainty about rate of compensation, and therefore, wise claimants may think to have the amount of compensation immediately without undergoing the procedure of inquiry, trial, etc. Therefore, they may take decision which would be in writing and on the basis of those agreements the Collector would declare the award which would not be his decision and would be a consent award. In fact, that would be the decision reached by the parties by their mutual agreement. The Collector has to add his seal to the agreement which would be in the form of an award and, therefore, obviously that cannot be subject-matter of reference because that is a decision arrived at by the parties mutually. From the provision it appears that with a view to encourage the parties to arrive at an agreement for compensation, the provision is made. This would expedite the acquisition and without any delay the owners will get the market value of the land immediately.
18. From the discussion above, it is very clear that the parties executed documents at which the Special Land Acquisition Officer was satisfied. The amount as agreed was taken and no protest was raised immediately before any authority. The possession has been handed over on accepting the amount as agreed and even after approaching this Court on an occasion prior to filing this petition, no evidence is tendered before the Competent Authority, therefore, it would not be possible for us to say that the award is bad.
19. Once we come to the conclusion that the award is pronounced under Section 11(2) of the Act, a question would arise whether provisions of Section 18 would be applicable or not. From the provisions of Section 18 of the Act it becomes clear that 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. Once we come to the conclusion that there was an agreement between the parties and the amount of compensation has been determined by consent then in that case the party who has agreed has no right to apply for reference under Section 18 of the Act because the claimant cannot be said to be "a party who has not accepted the award".
20. In the case of Stale of Gujarat v. Daya Shamji Bhai , the Supreme Court has in para 6 observed as under:
The award made under Section 11(2) in terms of the agreement is, therefore, an award with consent obviating the necessity of reference under Section 18.
Thus, all these claimants are not entitled to apply under Section 18 of the Act and, therefore, applications have been rightly rejected by the Special Land Acquisition Officer.
21. Mr. Desai, learned Counsel submitted that there are circulars issued by the Government indicating that when there is an agreement, amount should be paid according to the circulars. In his submission, even after the parties have agreed to a specific amount the acquiring body has to make payment as per circulars, i.e., in addition to price determined, 15% solatium should be added and thereafter on the total amount additional amount of 25% be awarded. Mr. Desai submitted that there must be specific reference in the agreement as to solatium and the additional amount of 25%. The circulars state that amount of solatium and additional amount of 25% is to be paid to the claimants for encouraging the claimants to enter into an agreement. In view of these circulars, Mr. Desai submitted that the amount should have been paid as per these circulars. Reading these circulars, it is very clear that the same will apply only in the cases where the agreement is to be executed after notification under Section 4 of the Act. Reading the language, it appears that it is open for the Collector to obtain consent of claimants and to pass award. These circulars do not refer to the agreement executed between the claimants and the acquiring body prior to notification under Section 4 of the Act. It seems that these circulars have been issued in order to avoid multiplicity of litigation and with a view to see that the Collector himself with the consent of claimants, may determine the price and pay additional amount. Not only that but the circulars, also provide that a writing shall be obtained from such claimants that they shall not seek reference under Section 18 of the Act. Reading the circulars it appears to us that it will apply in cases where the Collector takes an active role in obtaining the consent of parties. He will persuade the parties to enter into agreement and will also offer more price. It seems that these circulars are issued with a view to avoid further litigation and to shorten the procedure for acquisition of land.
22. Mr. Mehta, on the other hand submitted that the circulars have no force of statute. They are departmental circulars. The circulars are not issued under Section 55 of the Land Acquisition Act. He submitted that the Act does not provide power for issuance of circulars but the Act empowers for framing Rules under Section 53 of the Act. Therefore, these circulars have no statutory force. In the case of M/s. Bishamber Dayal Chandra Mohan v. State of U.P. , the Supreme Court has held that :
The State in exercise of us executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf.
The authorities acting under the law are required to act according to law and not by administrative instructions, opinions, clarifications or circulars when there is an enactment. In addition to the statute, the law declared by Supreme Court and High Courts has to be followed by everyone. The legislature has permitted the parties, i.e., the Corporation and the petitioners, to enter into agreements and which are bilateral agreements and unilaterally such agreements cannot be rescinded by taking shelter of circulars which are applicable, at the most to the Collector or Special Land Acquisition Officer who are exercising powers under the Act. Therefore, the circulars referred to by Mr. Desai are not applicable in the facts and circumstances of the present cases and hence we find no merits in the submission of Mr. Desai that compensation should have been paid according to the circulars. We do not express our opinion as to what extent these circulars can be pressed into service by the claimant in case where agreement is executed before the Collector, after notification under Section 4 of the Act, or any time thereafter before the award is made.
23. Petitioners of Special Civil Application No. 5589 of 1986 have not produced the award made by the Land Acquisition Officer. Even respondents have not cared to produce the same. However, it was made clear that award is made. Thus, in view of what is stated, after considering various aspects, it is not possible to interfere in these matters.
In the result, all the petitions are rejected. Rule in each petition is discharged. There shall be no order as to costs. Ad interim relief, if any granted, stands vacated.