Gujarat High Court
Kanchanbhai Jhaverbhai Desai And Anr. vs State Of Gujarat And Ors. on 30 November, 1994
Equivalent citations: (1995)1GLR156, 1995 A I H C 3627
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, C.J.
1. In this petition under Article 226 of the Constitution of India, the main prayer of the petitioner is that the respondents had taken possession of the land belonging to them after the same has been acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"), but no compensation was given with regard to the crops which were standing thereon. The claim of the petitioners, is that an appropriate writ should be issued to the respondents to make payment in respect thereof. In supprot of this claim, the petitioners relied on Division Bench judgment of this Court in the case of Motibhai Paragbhai and Ors. v. State of Gujarat and Ors. 1994 (2) XXXV (2) GLR 1105.
2. When this petition came up for preliminary hearing rule was issued. At that time, the attention of the Division Bench was drawn to the said judgment in Motibhai Paragbhai's case. The Bench, however, was of the opinion that as the attention of the Court in Motibhai Paragbhai's case has not been drawn to the provisions of Section 12 of the Act and further that the attention has also not been drawn to the decision of the Supreme Court in the case of the Addl. Special Land Acquisition Officer, Bangalore v. Thakoredas, Major and Ors. AIR 1994 SC 2227, the writ petition should be listed before a Full Bench. It is for that reason this petition has been heard by the present Bench.
3. In order to examine the rival contentions, we may briefly state the relevant facts which are not in dispute. The land of the petitioners was acquired for the purpose of constructing a canal known as "Karjan Water Reservoir". A notification under Section 4 of the Act was issued on 3rd March, 1987. This notification was published in the Govt. Gazette on 10th September 1987. It seems that even before the Land Acquisition Collector gave an award, the possession of the land in question was taken over by the acquiring authority on 15th December, 1987. The award, in respect of the said land, was made by the Collector on 28th April 1988.
4. It is not in dispute that neither any application was filed nor a request made for reference being made under Section 18 of the Act within the prescribed period. From the present writ petition which has been filed, it appears that it was only on 29th July 1993 that an application was filed before the Executive Engineer of Karjan Water Reservoir claiming compensation for the crops which were stated to have been standing on the lands when possession thereof was taken. Initially, a reply was sent to the effect that the matter was under examination. But subsequently the claim of the petitioners was not accepted. Thereafter, the present petition has been filed under Article 226 of the Constitution of India.
5. On behalf of the respondents an objection which has been taken is that the present petition under Article 226 of the Constitution of India should not be entertained. The submission is that, if the petitioners had any grievance with regard to nonpayment of compensation in respect of crops which were stated to have been standing at the time when possession was taken, then the remedy of the petitioners was to file an application under Section 18 of the Act for reference to the Court. This not having been done the writ Court cannot circumvent that procedure and direct the examination of the claim of the petitioners. It is also submitted by the learned Counsel for the respondents that the aforesaid decision of this Court in Motibhai Paragbhai's case is no longer a good law. Our attention has been drawn to the order of the Supreme Court passed in Sepcial Leave Petition No. 14235 of 1994 which was filed by the State of Gujarat against the aforesaid judgment in Motibhai Paragbhai's case while claiming to set aside the judgment of this Court. The Supreme Court, however, observed that:
We have heard the Counsel for the petitioner. Though we are not happy with the exercise of the power under Article 226 by the High Court in a matter where reference under Section 18 of the Land Acquisition Act, 1894 was required to be pursued, on the facts in this case, we do not propose to interfere with the order of the High Court.
It is, therefore, contended that the Supreme Court has categorically laid down that the proper remedy in a case, like me present one, is by way of a reference under Section 18 and not by way of a writ petition.
6. Before examining the Motibhai Paragbhai's case in greater detail, we may first advert to the scheme of the Act. After the notification under Section 4 is issued indicating that a land is likely to be needed for the public purpose, an inquiry is held under Section 5A and thereafter a final declaration that the land is required for a public purpose is made by way of a notification under Section 6 of the Act. The persons whose land is sought to be acquired and other persons who have an interest therein have to file their claims for compensation before the Land Acquisition Collector on receipt of a notice under Section 9 of me Act. After an inquiry is held, the Land Acquisition Collector makes an award under Section 11 of the Act with regard to the true area of land, the compensation which in his opinion should be allowed and an apportionment of the compensation, if necessary. According to Section 15 of the Act, the Land Acquisition Collector, in determining the amount of compensation, is to be guided by the provisions contained in Sections 23 and 24 of the Act. Section 23 of the Act deals with the matters to be considered in determining compensation while Section 24 of the Act enumerates the matters to be neglected in determining compensation. We shall presently refer to the appropriate provisions of these sections. But we may first note that according to Section 12 of the Act, the award which is made by the Collector is regarded as being final and conclusive as between the Collector and the persons interested therein of the true area and the value of the land and the apportionment of the compensation. The finality which is attached to the award is, however, subject to the reference being made to the Court under Section 18 of the Act. Such a reference can be made by an interested person who has not accepted the award and in such a case he has to make a written application to the Collector requiring him to make a reference to the Court within the prescribed time-limit. When such an application is filed, the Collector is required to make a reference and according to Section 19 of the Act in making the reference, the Collector is required to state the situation and extent of the land as also the particulars of any trees, buildings or standing crops therein. He is also required to give the names of persons who can be interested in die land, die amount awarded for damages under Section 5 or 17 of the Act and the amount of compensation awarded under Section 11 of the Act.
7. The possession of land which is sought to be acquired can be taken under Section 16 of the Act after the Collector has made an award under Section 11 of the Act in which case the land will vest in the Govt, free from all the encumbrances or in cases of emergency the possession may be taken under Section 17 of the Act even before making of the award.
8. Reverting to Section 23 of the Act, the compensation is to be awarded after taking six factors into consideration as set out in Sub-section (1) of Section 23 of die Act which reads as under:
23. Matters to be considered in determining compensation - (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-
firstly, the market-value of the land at the date of the publication of the notification under Section 4, Sub-section (1), secondly, the damage substained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;
thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;
fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide, resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land.
The aforesaid factors have to be taken into consideration by die Collector before he makes his award and the same factors have to be taken into consideration when the Court makes its award on a reference being made under Section 18 of the Act.
9. In the present case, die claim of the petitioners is with regard to standing crops at the time when possession was taken. As we have already noted that possession can be taken either before or after the making of die award by the Land Acquisition Collector. Before die award possession can be taken under Section 17 of the Act, as was done in die present case, but by tendering some payment and with the agreement of die petitioners. The damages which are sought to be claimed are with regard to standing crops at die time when the Collector took the possession. As we read Section 23 it is clear that the damage must be such as is quantifiable either by the Collector at the time when he is making the award or by Court when it makes the award under Section 18 of the Act. The tenor of clause Secondly of Section 23(1) of the Act is such that it refers to the damage which has already been sustained by the person by reason of taking into consideration the standing crops or trees at the time of the Collector's taking possession of the land. This damage has to be in existence and has to be computed while determining the amount of compensation. It is quite obvious that neither the Collector nor the Court is required to take into consideration a damage likely to arise in future which can only be in a case where trees are planted or standing crops are cultivated after the award.
10. By virtue of the definition of the word "land" under Section 3(a) of the Act, the benefits which arise out of the land, and things attached to the earth or permanently fastended thereto are included in the said expression. It has been held by the Supreme Court in Chaturbhuj Pande and Ors. v. Collector, Raigarh AIR 1969 SC 255 that the value of the trees standing on the land at the time when Section 4 notification is issued has to be taken into consideration when the market value of the land is being determined under the clause Firstly of Section 23(1) of the Act. The standing crops or trees which are mentioned in the clause Secondly of Section 23(1) thereof can only be those which come into existence after the notification under Section 4 is issued. There is always a time-lag between issuance of the notification under Section 4 of the Act and the completion of the acquisition proceedings with the making of the award by the Collector under Section 11. Till the possession is taken under Section 16, or earlier under Section 17, the owner of the land is at liberty to cultivate the same. The owner may not know as to when the possession will be taken. Obviously, with a view to compensating him for the loss which may be suffered, if standing crops or trees planted subsequent to Section 4 notification, are taken away, he is entitled to compensation under the clause Secondly of Section 23(1) of the Act. But for this provision the claimants would not have been entitled to claim any compensation because of the clause Seventhly of Section 24 of the Act which provides that the Court shall not take into consideration any outlay or improvements on the land which is made or effected after the notification under Section 4 of the Act. To give an example, if any immovable structure is erected on the land after Section 4 notification is issued and before the possession is taken, no compensation would be payable. But if any crop is cultivated then by virtue of the clause Secondly of Section 23(1) of the Act, compensation will be paid by reason of that crop having been taken away at the time when the possession is handed over. Therefore, while right to claim compensation exists at the time when possession is taken, the claim in respect thereof must arise and be made at the time or before the award is made. When an award is made under Section 11 of the Act, if possession had been taken earlier and there was a standing crop, then the Collector will have to take into consideration the damage sustained by die claimant in respect of the standing crop whose possession was taken before the award. If possession is not taken before the award, but if standing crop exists when the award is made even then, possibly the value of the standing crop will have to be taken into consideration (by the Court on a reference under Section 18 of the Act) because after making of the award die Collector becomes entitled to take possession of the land. In other words, me quantum of damage sustained or likely to be sustained in respect of the crop which exists at the time of taking of the possession can be ascertained by the Collector. Where, however, no crop exists and the land is cultivated after the award has been made by the Collector, it is quite obvious that the Collector cannot take that factor into consideration which did not exist at the time when the award was made. When the award is made, the claimant knows that he can be divested of the possession any time thereafter. If he chooses to cultivate the land after the award, he obviously runs the risk of being deprived of the benefits of the crop, if the possession is taken before the crop can be harvested. If he, nevertheless, chooses to cultivate the land and he still wants to secure himself or desires that compensation should be paid to him, in the event of the standing crops being taken away when the possession is taken, then it is open to him to seek a reference under Section 18 of the Act. If such a reference is sought then the Court while determining the amount of compensation payable shall take such a damage into consideration which may have occurred even with regard to the crop cultivated after the Collector's award. That damage must occur at or before the time when the Court makes its award. The Court cannot award damages which cannot be quantified which will only be in those cases where the crops have not been cultivated when the award is made.
11. The reading of the Act in general and Sees. 11, 12 and 18 of the Act in particular shows that in respect of the same parcel of land only one award is contemplated. When the Collector makes his award under Section 11 of the Act, the same is with regard to the area of the land, the compensation and the apportionment thereof. With regard to that area of land for which award is made the same is final under Section 12 of the Act. This being so, the question of any supplementary award being given in respect of the same area or part thereof does not arise. In arriving at the amount of compensation all the factors mentioned in Section 23 of the Act have to be taken into consideration. If some of the factors are not taken into consideration it cannot be that in respect of those factors which are omitted supplementary awards can be made. If the contention of the petitioners is right, then it can be conceivable that in respect of the same parcel of land there can be six different awards, each dealing with one aspect. If the award of the Collector does not deal with one or more aspects contained in Section 23 of the Act, the remedy is not to ask for a supplementary award, but the only recourse which is open to a claimant is to file an application under Section 18 of the Act for a reference. As directed if it is only one award in respect of a parcel of land by the Collector, it would ipso facto follow that the Court can also make only one award on the reference being made to it.
12. With the aforesaid background let us examine two decisions of this Court in the case of Dayaprakash Trikambhai v. The Special Land Acquisition Officer, Baroda (1969) X GLR 234. The question arose is as to whether the claimant can claim additional compensation for the plants which were planted after the claim has been made pursuant to die notice under Section 9 of the Act. It was held by this Court that when possession was taken after the award has been made then in respect of the said plants die claimant could agitate me question of additional compensation only by way of reference under Section 18 of the Act. In arriving at this conclusion it was observed that the Court was bound to consider the claim of the claimant in repsect of the damage suffered on account of standing crops being taken away. We cannot read in this judgment that the Court had approved making of more than one award by the same authority. The fact of this judgment is that if the Collector has not taken this fact into consideration, because possession was taken after the award was made by him, in such a case reference under Section 18 of the Act will have to be made and compensation would then be awarded by the Court. To put it differently, if the relief could not be obtained from the Collector in the award made by him, in respect of crops which were taken into possession after making of the award, the option which is open to the claimant is to file an application under Section 18 of the Act for relief or compensation from the Court when a reference has been made.
13. With respect, we find ourselves unable to agree with the ratio of the decision in Motibhai Paragbhai's case in as much as it observed that the only remedy which was open to the petitioners therein was by way of a petition under Article 226 of the Constitution of India. Firstly, the question of making a representation to the Executive Engineer of the organisation for whose benefit the land is acquired for additional compensation does not arise. Under the Act, if the claimant feels aggrieved he has to approach the Collector for a reference under Section 18 of the Act. In cases where possession is taken after the award is made, the claimant could have made an application under Section 18 of the Act in respect of standing crops for which no compensation was awarded. The Act contemplates awards being made by two different authorities, firstly by the Collector and secondly on a reference by the Court. It was observed in Motibhai Paragbhai's case as under:
14. The question with regard to the determination of amount of compensation on the count of damage sustained by the person interested would arise only if the event of taking possession of the land had taken place beofe the award is passed by the Collector. If the possession is not taken by the Collector at the time of the award under Section 11 of the Act the Collector would naturally not take into consideration the factor regarding damage that may be sustained by the person interested at the time of taking of possession of the land by the Collector. In all cases in which award is passed before taking possession of the land the provisions of Section 18 of the Act would not be applicable. As indicated hereinabove in para 2 of the judgment, at least in five cases out often the possession has been taken over by the Collector after the award under Section 11 of the Act is declared. Therefore, the provisions of Section 18 of the Act could not have been invoked by the claimant.
15. It is true that in cases where the Collector had taken possession before the award under Section 11 was passed, the person interested in the land could have requested the Collector for making reference to the appropriate Court under Section 18 of the Act. But as indicated hereinabove, when the petitioners requested for determination of the amount of damages sustained by them respondents replied that the question was under consideration by the Government at the appropriate level. The respondents did not decide the question till the petition was filed. The question was finally decided and communicated to the petitioners by letter dated June 29,1993 after the notice of the petition was served. Since the respondents did not decide the question for a pretty long time all the petitioners have been put in an awkward situation.
As already indicated above even where the possession is taken after the award is made by the Collector and compensation has not been awarded with regard to the standing crop, reference under Section 18 of the Act can be made. This is evident from the interpretation of the various provisions of the Act and this has, in fact, been so held by the Supreme Court in its order dated 2-9-1994 in Sepcial Leave Petition No. 14235 of 1994 filed by the State of Gujarat against the aforesaid judgment of this Court in Motibhai Paragbhai's case. This question, namely, reference under Section 18 of the Act could be filed where possession is taken after the award is no longer res Integra. In our opinion, therefore, the holding in Motibhai Paragbhai's case that the only remedy which was available to the claimants was by way of a Petition under Article 226 of the Constitution of India is not correct. We accordingly, overrule the said judgment to that extent.
14. It was submitted by Shri N.A. Pandya, learned Advocate for the petitioners that the present case is similar to the award made in Motibhai Paragbhai's case. Both the cases pertain to acquisition for the same project and therefore, there is no reason as to why the petitioners should not get the benefit which the petitioners in Motibhai Paragbhai's case would get. If we may say so this is an argument in desparation. In the present case the possession of the land was taken four months before the award by the Collector. The declaration under Section 6 of the Act was made on 14-12-1987. Notice under Section 9 of the Act was issued on or about 30-3-1988. Possession was taken before that date on 15-12-1987. Therefore, if there was any legitimate claim with regard to the standing crop as on the date when possession was taken on 15-12-1987, the claimant would have made the claim before the Land Acquisition Collector.
15. We are informed by the learned Counsel for the respondents that the Land Acquisition Collector in the award has stated that there was no standing crop or the trees at the time when possession was taken and the standing crop were permitted to be removed by the petitioners. If this statement in the award of the Collector was incorrect and compensation had not been paid to the claimant, then the obvious course which was open to the petitioners was to make a reference application under Section 18 of the Act. This the petitioners did not do.
16. It was contended by the learned Counsel for the petitioners, that despite the aforesaid observation of the Supreme Court regarding applicability of Section 18 of the Act, the Court nevertheless did not set aside the judgment of this Court in Motibhai Paragbhai's case. He refers to the provisions of Article 141 of the Constitution of India and submits that should the said order of the Supreme Court be read as a whole, the present petition is maintainable. We are unable to agree with the learned Counsel for the petitioners. The Supreme Court while correcting the High Court on a question of law by holding that Section 18-application was maintainable and the recourse should not have been allowed under Article 226 of the Constitution of India, chose not to interfere in exercise of its discretion under Article 136 of the Constitution of India. The order of the Supreme Court even read as a whole does not mean that the ratio of the decision of this Court in Motibhai Paragbhai's case is approved; on the contrary it was expressly disapproved.
17. The decisions cited by the learned Counsel for the petitioners, namely, (i) P.D. Amman and Ors. v. State ofKarnataka and Ors. 1985 (2) SCC 513, and (ii) Commissioner of Income-Tax v. Sun Engineering Works (P) Ltd. have no application on the facts of the present case.
18. This writ petition is also liable to be dismissed on the ground of laches. The award in the present case was made on 28-4-1988. The petitioners chose to make a claim for additional compensation only when it made an application on 28-7-1993, nearly five years after the award. The Supreme Court had an occasion to deal with such a matter in the case of the Addl. Spl. Land Acquisition Officer, Bangalore (supra) . In that case an application was made to the Court for making a reference more than three years after the award was made by the Collector. The Supreme Court held that making of such an application was highly belated and reference could not have been made. Applying the said ratio, it is clear that if a reference could not have been made more than three years after the award had been made, the writ Court in exercise of jurisdiction under Article 226 of the Constitution of India cannot overcome the period of limitation by, in effect, directing that a reference should be made. The petitioners have been guilty of laches and on this ground also the present writ petition is not maintainable. For the aforesaid reasons, this petition is dismissed. Rule is discharged. The parties, however, are left to bear their own costs.
19. The learned Counsel for the petitioners makes a prayer for a certificate of fimess to appeal to the Supreme Court. We do not find this to be fit case for granting such a certificate. Hence the request is rejected.