Gujarat High Court
Deputy vs Gunvantrai on 7 September, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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FA/1054/1984 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No.1054 of 1984
With
FIRST
APPEAL No.1489 of 1984
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL Sd/-
HONOURABLE
MR.JUSTICE
R.M.CHHAYA Sd/-
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2
To
be referred to the Reporter or not ?
YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5
Whether
it is to be circulated to the civil judge ?
NO
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DEPUTY
COLLECTOR - Appellant(s)
Versus
GUNVANTRAI
RAJARAM DAVE & 1 - Defendant(s)
=====================================================
Appearance
:
IN
FIRST APPEAL No.1054 of 1984
MS
MOXA THAKKER, AGP
for Appellant(s) : 1,
MR
RUSHABH R SHAH for Defendant(s) : 1,
MR PRANAV G DESAI for
Defendant(s) : 2,
IN
FIRST APPEAL No.1489 of 1984
MR
RUSHABH R SHAH for Appellant(s) : 1,
MR PRANAV G DESAI for
Defendant(s) : 1,
MS
MOXA THAKKER, AGP for
Defendant(s) :
2,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 07/09/2011
COMMON
CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE R.M.CHHAYA) Both these appeals arise out of the impugned judgment and award dated 21.04.1984 passed by learned Assistant Judge, Sakbarkantha at Himatnagar in Land Acquisition Case No.10 of 1982.
First Appeal No.1054 of 1984 is filed by Deputy Collector, Himatnagar challenging the aforesaid judgment and award and the original claimant has filed First Appeal No.1489 of 1984 for enhancement of the compensation granted by the Reference Court. As both these appeals raise identical questions of law and facts, the appeals are disposed by this common judgment. For the sake of convenience, the parties shall be referred to as per their original status in the lower court.
The facts arising out of these appeals are as under: that the original claimant was an occupier of land bearing City Survey No.3099 paiki, admeasuring about 3210 sq. yard i.e. 2684.16 sq.mtrs. The land in question was required for the public purpose for the opponent-State Transportation Corporation for construction of its depot. The opponent-Deputy Collector, therefore, initiated proceedings for acquiring the land in question belonging to the original claimant. Notification, as contemplated under section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred to as 'the Act'), was published on 16.03.1979 (even though as per the possession receipt (Exh.73) it transpires that Section 4 notification was published on 16.03.1978).
Thereafter notification under Section 6 of the Act was published on 27.04.1979 and it culminated into an award under Section 11 of the Act, which was made and declared by the Land Acquisition Officer on 14.07.1981. The Land Acquisition Officer, after considering various sale instances and the claim put forward by the original claimant, determined the market price of the land in question at Rs.12/sq.mtr. As the claimant was not satisfied with the said award, he raised a dispute and claimed Rs.31/sq ft. under Section 18 of the Act, which came to be referred to the Reference Court at Himatnagar, and was registered as Land Acquisition Case No.10 of 1982. The Reference Court considered the oral as well as documentary evidence adduced by both sides and vide judgment and award dated 21.04.1984 determineed the market price of the land in question at Rs.8/sq. ft., which is equal to Rs.86/sq. mtr. (rounded off). Being aggrieved by the said judgment and award of the Reference Court, Deputy Collector, Himatnagar as well as the original claimant have preferred the present appeals.
Heard Ms.Moxa Thakker, learned Assistant Government Pleader for the Deputy Collector, Mr.Rushab R. Shah, learned counsel for the original claimant and Mr.Pranav G. Desai, learned counsel for the opponent-Gujarat State Road Transport Corporation. We have also perused the record and proceedings of the Reference Court.
Ms.Thakkar has taken us through the impugned judgment and award and has contended that the Reference Court has committed an error in determining the market value at Rs.8/sq.ft. It was further submitted that the Reference Court has though considered the sale instances Exh.43 and Exh.53 as basis to determine the market value, has failed to consider the nature of the land acquired and has in fact passed the impugned judgment and award on a single instance even though other cogent evidence in form of opinion of the Chief Town Planner was available on record. It was further submitted that even if the said sale deed Exh.53 is considered to be a comparable instance by the Reference Court, the Reference Court ought to have given at least 50% deduction instead of 20% as the land, which is acquired was of inferior quality and of a triangular shape and uneven. It was submitted that it is clear from the evidence that the land under acquisition was uneven and was required to be filled up as the land was of lower level to the extent of 3 ft. from the road level. It was, therefore, submitted that the Reference Court has committed an error in straightway determining the market value at Rs.8/sq. ft. It was further submitted that the appeal filed by the original claimant is devoid of merits. It was reiterated that in fact the Reference Court has fixed the excess amount, as aforesaid, and, therefore, the appeal filed by the original claimant deserves to be dismissed. It was submitted that the attempt on the part of the claimant to compare it with the other instances on record would not carry the case any further. It was, therefore, submitted that the appeal filed by the Deputy Collector deserves to be accepted and the judgment and award of the Reference Court deserves to be set aside, confirming the award passed by the Land Acquisition Officer.
Mr.Desai, learned counsel for the opponent-Gujarat State Road Transport Corporation, has adopted the arguments made by the learned Assistant Government Pleader and has not raised any further contention before this Court.
As against this, Mr.Shah submitted that the land in question is situated in the heart of the city of Himatnagar and is nearby the railway station as well as the ST bus stop and the area was highly developed with facilities like hospital, ice factory, bazaar and the land under acquisition abuts on the national highway leading from Ahmedabad to Ambaji. It was submitted that the Reference Court has erred in appreciating the evidence on record. It was further submitted that the claimant had adduced independent evidence in form of oral deposition of four witnesses and had adduced ample evidence on record to establish the claim made by the claimant. It was further submitted that the Reference Court has not considered the fact that the area being developed, there was upper trend in the market and, therefore, instead of deducting the amount from the comparable instance relied upon by the Reference Court, it ought to have enhanced appropriately. It was also submitted that the claimant has himself undertaken the task of filling up the land and had spent a good amount for filling up the earth. It was further submitted that the Reference Court, though has passed the award on 21.04.1984, has not granted benefit of the additional compensation as contemplated under section 23(1-A) of the Act as well as the other statutory benefits under Sections 23(2) and 28 of the Act. It was therefore, submitted that the appeal filed by the claimant deserves to be accepted and allowed by determining the market value of the land acquired as prayed for by the claimant and the appeal filed by the State being meritless deserves to be dismissed.
We have gone through the impugned judgment and the relevant oral evidence adduced by the claimant as well as the opponents. We have also perused the award passed by the Land Acquisition Officer under Section 11 of the Act. The Reference Court has relied upon two documents viz. Exh.43 and Exh.53. On perusing the map, which is part of Exh.24, we find that the land under acquisition is situated nearby the lands, which were subject matter of the transaction of the sale deeds Exh.43 as well as Exh.53. We also find that the vendor in both the cases have been examined Exh.41-Manilal Dave and Exh.50-Kantilal Dahyabhai Shah.
On perusal of the award passed under Section 11 of the Act, we find that at the initial stage the claimant claimed Rs.31/sq. ft. The Land Acquisition Officer has taken into consideration about 13 sale instances, including the order passed by the Collector for the part of the same land under acquisition and has thereafter fixed the price at Rs.12/sq.mtr. On perusing the document at Exh.43 we find that it is a transaction for the land admeasuring 103.49 sq. mtrs. and the same is dated 01.02.1979. We find that the Reference Court had benefit of other pieces of evidence in form of other sale instances as well as the report of Additional Chief Town Planner, Gujarat State, Ahmedabad at Exh.100.
We find that the Reference Court has rightly not relied upon the sale deed produced at Exh.53 as it was a transaction between two near relatives. However, the sale deed Exh.43 relied upon by the Reference Court is situated just on the Southern side of the land under acquisition in Girdharnagar area and even though the said transaction was for a small piece of land taking into consideration its geographical location, the Reference Court has rightly taken it as comparable instance as the other evidence on record were of the land situated little far than the land, which is the subject matter of land at Exh.43 and, therefore, the other instances were not comparable. We, therefore, find that the Reference Court has not committed any error relying upon the sale deed Exh.43 as a comparable instance. Recently, the Apex Court in the case of Trishala Jain & Anr. Vs. State of Uttaranchal & Anr. (2011) 6 S.C.C. 47 relying upon its earlier judgment as observed as under:
"39. The law with regard to applying the principle of deduction to the determined market value of the acquired land is quite consistent, though, of course, the extent of deduction has varied very widely depending on the facts and circumstances of a given case. In other words, it is not possible to state precisely the exact deduction which could be made uniformly applicable to all the cases. Normally the rule stated by this Court consistently, in its different judgments, is that deduction is to be applied on account of carrying out development activities like providing roads or civic amenities such as electricity, water etc. when the land has been acquired for construction of residential, commercial or institutional projects. It shall also be applied where the sale instances (exemplars) relate to smaller pieces of land and in comparison the acquisition relates to a large tract of land. In addition thereto, deduction can also be applied on account of wastage of land.
42. This Court in Bhagwathula Samanna v. Tahsildar & Land Acquisition Officer, stated that it is permissible to take into account of exemplars of even small developed plots for determining value of a large tract of land acquired, if the latter is also fully developed with all facilities requiring little or no further development. In the facts and circumstances of that case the Court felt that it was not appropriate to resort to deduction of 1/3rd value of the comparable sale instances as development charges."
In view of the above decision of the Apex Court, the Reference Court has committed no error in relying the sale instance Exh.43 while determining the market value of the land as Rs.8/sq. ft. However, we find that the Reference Court has erred in giving deduction to the tune of only 20%. On consideration of the oral evidence led by the parties as well as on perusing the map as well as the photographs of the land in question it clearly establishes the fact that, the land in question was a low lying land and, therefore, considering the condition of land, in particular the deduction of 20% made by the Reference Court is less. The Reference Court has not considered the fact that the land under acquisition was not fit to be used for the purposes for which it is acquired without any further expenditure. The principle of deduction in the land under acquisition, therefore, ought to have been considered after considering all such relevant facts. The land, which was subject matter of Exh.43, was developed and suitable for the building purpose. Further the area of land under acquisition was much larger in comparison to area which was subject matter of Exh.43.
Therefore, considering the facts and circumstances of the case the land under acquisition, we hold that the deduction should be 1/3rd.
We, therefore, hold that Exh.43, relied upon by the Reference Court, was a land admeasuring 103.49 sq.mtrs., which was sold at Rs.108/sq.mtr. i.e. Rs.10/sq. ft. and by applying 1/3rd deduction the claimant would be entitled to total compensation at Rs.6.70/sq. ft. i.e. Rs.72/sq.mtr.
We have examined the contention raised by Mr.Shah that the claimant would be entitled to additional compensation as contemplated under Section 23(1-A) of the Act. It may be noted that though the said provision was introduced by Act No.68 of 1984 w.e.f. 24.09.1984 the same was made applicable w.e.f. 30.04.1982 in view of the following transitional provisions from the date of which the Bills came to be introduced.
In case of Pralhad & Ors. Vs. State of Maharashtra & Anr., (2010) 10 S.C.C. 458, the Apex Court has observed as under:
"9.
The benefit which is given to the landowners under the amendment provision, which came by virtue of Section 15 of Act 68 of 1984, is now Section 23 (1A) of the Principal Act. Section 23 (1A) of the Principal Act runs as under:
"23(1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation.-
In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.] (2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of [thirty per centum] on such market-value, in consideration of the compulsory nature of the acquisition.
10. The benefit of the aforesaid amended provision to the landowners was provided by Section 30 (1) of Act 68 of 1984. The said Section 30, which was known as transitional provision, read as under:
"30.
Transitional Provisions- (1) The provisions of sub-section (1-A) of section 23 of the Principal Act, as inserted by clause (a) of section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,-
(a) every proceeding for the acquisition of any land under the Principal Act pending on the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People], in which no award has been made by the Collector before that date;
(b) every proceeding for the acquisition of any land under the Principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act.
(2) The provisions of sub-section (2) of section 23 and section 28 of the Principal Act, as amended by clause (b) of section 15 and section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the Principal Act after the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and before the commencement of this Act."
11. The said transitional provision came up for consideration before this Court in several judgments and there was some divergence of judicial opinion which was ultimately settled by the Constitution Bench Judgment of this Court in the case of K.S. Paripoornan vs. State of Kerala and others, (1994) 5 SCC
593.
12. In the case of Paripoornan (supra) the majority judgment was rendered by Justice S.C. Agrawal. In rendering the majority judgment their Lordship held that the decision of this Court in Union of India vs. Zora Singh, (1992) 1 SCC 673, is not correct and in paragraph 70 of the judgment the learned Judges held that the Parliament has given a clear indication of its intention in Section 30 (1), which was a transitional provision. The learned Judges held that since a clear intention has been given in Section 30(1), there is no scope for any speculation about the parliamentary intention by reading Section 23(1A) in isolation from Section 30(1) of the Act. (See para 70)
13. The learned Judges also noted the purpose of a transitional provision in the statute and referred to Francis Bennion on Statutory Interpretation and also to Thornton on Legislative Drafting. Relying on those treaties on interpretation, this Court held that Section 23 (1A) and Section 30 are interconnected (See para 73, page
639).
14. In paragraph 74 at page 639 and 640 of the report this Court, on a conjoint reading of Section 23(1A) with Section 30(1), held as follows:
"74.
... A perusal of sub-section (1) of Section 30 of the amending Act shows that it divides the proceedings for acquisition of land which had commenced prior to the date of the commencement of the amending Act into two categories, proceedings which had commenced prior to 30-4-1982 and proceedings which had commenced after 30-4-1982. While clause (a) of Section 30(1) deals with proceedings which had commenced prior to 30-4-1982, clause (b) deals with proceedings which commenced after 30-4-1982. By virtue of clause (a), Section 23(1-A) has been made applicable to proceedings which had commenced prior to 30-4-1982 if no award had been made by the Collector in those proceedings before 30-4-1982. It covers (i) proceedings which were pending before the Collector on 30-4-1982 wherein award was made after 30-4-1982 but before the date of the commencement of the amending Act, and (ii) such proceedings wherein award was made by the Collector after the date of the commencement of the amending Act. Similarly Section 30(1)(b) covers (i) proceedings which had commenced after 30-4-1982 wherein award was made prior to the commencement of the amending Act..."
15. In subsequent judgment, in Prem Chand and others vs. Union of India, AIR 2010 S.C. 1308, following the ratio in Paripoornan (supra) this Court granted relief to the claimants in accordance with the provision of Section 23(1A) of the Act. In that case the land acquisition commenced on 22nd of March 1978 and the award was passed on 25th February 1983."
Section 23(2), as amended by Act No.68 of 1984 w.e.f. 24.09.1984 would be applicable in the instant case. The Apex Court while deciding the applicability of Section 23(2) has in the case of Union of India & Anr. Vs. Filip Tiago De Gama of Vedem Vasco De Gama, AIR 1990 S.C. 981 as observed thus:
"17.
Section 30(2) provides that amended provisions of S. 23(2) shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the collector or Court between 30 April, 1982 and 24 September, 1984, or to an appellate order therefrom passed by the High Court or Supreme Court. The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium in as much as to awards made subsequent to 24 September, 1984. Perhaps it was thought that awards made after the commencement of the Amending Act 68 of 1984 would be taken care of by the amended S. 23(2). The case like the present one seems to have escaped attention by innocent lack of due care in the drafting. The result would be an obvious anomaly as will be indicated presently. If there is obvious anomaly in the application of law the Court could shape the law to remove the anomaly. If the strict grammatical interpretation gives rise to absurdity or inconsistency, the Court could discard such interpretation and adopt an interpretation which will give effect to the purpose of the legislature. That could be done, if necessary even by modification of the language used. (See: Mahadeolal Kanodia v. The Administrator General of West Bengal, (1950) 3 SCR 578 : (AIR 1960 SC 936). The legislators do not always deal with specific controversies which the Courts decide. They incorporate general purpose behind the statutory words and it is for the court to decide specific cases. If a given case is well within the general purpose of the legislature but not within the literal meaning of the statute, then the Court must strike the balance.
18.
The criticism that the literal interpretation of S. 30(2), if adhered to would lead to unjust result seems to be justified. Take for example; two acquisition proceedings of two adjacent pieces of land, required for the same public purpose. Let us say that they were initiated on the same day - a day sometime prior to 30 April, 1982. In one of them the award of the Collector is made on 23 September, 1984 and in the other on 25 September, 1984. Under the terms of S. 30(2) the benefit of higher solatium is available to the first award and not to the second, Take another example; the proceedings of acquisition initiated, say, in the year 1960 in which award was made on 1 May 1982. Then the amended S. 23(2) shall apply and higher solatium is entitled to. But in an acquisition initiated on 23 September, 1984 and award made in the year 1989 the higher solatium is ruled out. This is the intrinsic illogicity if the award made after 24 September, 1984 is not given higher solatium. Such a construction of S. 30(2) would be vulnerable to attack under Art. 14 of the Constitution and it should be avoided. We, therefore, hold that benefit of higher solatium under S. 23(2) should be available also to the present case. This would be the only reasonable view to be taken in the circumstances of the case and in the light of the purpose of S. 30(2). In this view of the matter, the higher solatium allowed by the High Court is kept undisturbed."
In the present case, though the award passed by the Collector is prior to 30.04.1982 as the appeals were pending before this Court, the claimant would be entitled to solatium also.
In the instant case, the Land Acquisition Officer made and declared award on 14.07.1981 i.e. before the relevant date i.e. 30.04.1982 and hence, the claimant would not be entitled to any additional compensation as contemplated under Section 23(1-A) of the Act. However, the claimant would be entitled to other benefits as contemplated under Section 23(2) as well as under Section 28 of the Act.
It is also to be noted that recently the Apex Court in the case of Iyasamy & Anr. Vs. Special Tahsildar, Land Acquisition, (2010) 10 S.C.C. 464 has decided that the claimant would be entitled to interest on solatium only from the date on which the Apex Court decided in the case of Sunder Vs. Union of India, (2001) 7 S.C.C. 211 has observed thus:
"18. The learned counsel for Appellants in Civil Appeal Nos.1760-1761/04 are also claiming interest on solatium and additional compensation as the impugned order of the High Court was pronounced prior to judgment in Sunder v. Union of India reported at (2001) 7 SCC 211. Since the present appeal was pending before this court, therefore, the ratio of Sunder v. Union of India would entitle the appellants to receive interest on solatium under section 23 (2) and additional compensation under Section 23 (1A) in terms of the said decision. It was decided in Gurpreet Singh v. Union of India reported at (2006) 8 SCC 457 that such interest can be claimed only from the date of the judgment in Sunder (supra) i.e. 19.9.2001. Therefore, the appellants in the Civil Appeal Nos. 1760-1761/04 shall be entitled to such interest for the period after 19.9.2001, not the period prior to the same."
As aforesaid, Section 4 notification, as noted by the Reference Court, is dated 16.03.1979 and even though as per the possession receipt (Exh.73) it records that Section 4 notification was published on 16.03.1978. Either of the two dates do not make any difference as far as the total compensation awardable to the original claimant is concerned, we find that the Reference Court is correct in coming to the conclusion that the sale instance (Exh.43) is comparable instance in comparison to other instances and by following the judgment of the Apex Court in the case of Trishala Jain & Anr.
(supra), we have affected deduction to the tune of 1/3rd of the price of the sale deed (Exh.43) and, therefore, the conclusion arrived as regards the market value of the land in question would be the same. In the result, the claimant would be entitled to compensation at Rs.6.70/sq.ft. i.e. Rs.72/sq. mtr. (rounded off) along with solatium and the interest as provided under Sections 23(2) and 28 of the Act respectively. However, the claimant would be entitled to interest on solatium only from 19.09.2001.
The appeals are disposed of as aforesaid. The impugned judgment and award stands modified accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. The additional amount, if not deposited, shall be deposited within 08 (eight) weeks from the receipt of the present judgment and order of this Court.
Registry is directed to send back the original record and proceedings to the Reference Court.
Registry to place a copy of this order in connected matter.
Sd/-
[JAYANT PATEL,J] Sd/-
[ R.M.CHHAYA, J] *** Bhavesh* Top