Gujarat High Court
State Of Gujarat & vs Radhaben Mathurbhai Patel & 6 on 1 May, 2014
Author: R.P. Dholaria
Bench: M.R. Shah, R.P.Dholaria
C/FA/231/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 231 of 2012
TO
FIRST APPEAL NO. 236 of 2012
With
FIRST APPEAL NO. 238 of 2012
TO
FIRST APPEAL NO. 241 of 2012
With
FIRST APPEAL NO. 2154 of 2010
TO
FIRST APPEAL NO. 2163 of 2010
With
CROSS OBJECTION NO. 126 of 2013
In FIRST APPEAL NO. 238 of 2012
TO
CROSS OBJECTION NO. 129 of 2013
In FIRST APPEAL NO. 241 of 2012
With
CROSS OBJECTION NO. 38 of 2013
In FIRST APPEAL NO. 231 of 2012
TO
CROSS OBJECTION NO. 43 of 2013
In FIRST APPEAL NO. 235 of 2012
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA sd/
=============================================
1. Whether Reporters of Local Papers may be allowed to see NO the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair copy of the NO judgment ?
4. Whether this case involves a substantial question of law as to NO the interpretation of the constitution of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ? NO Page 1 of 44 C/FA/231/2012 CAV JUDGMENT ============================================= STATE OF GUJARAT & 1....Appellant(s) Versus RADHABEN MATHURBHAI PATEL & 6....Defendant(s) ============================================= Appearance in all the matters:
MR DHAWAN JAYSWAL, AGP for the State of Gujarat and Special Land Acquisition Officer MR ASHISH H SHAH, ADVOCATE for the Original Claimants MR BD KARIA, ADVOCATE for the Acquiring Body - Narmada Project Rehabilitation ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 01/05/2014 COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] As common question of law and facts arise in this group of appeals as well as the Cross Objections and as such they arise out of the impugned common judgment and award dated 11.12.2009 passed by the learned Reference Court - learned Additional Senior Civil Judge, Vadodara in Land Acquisition Reference Case Nos.1999/2002 and other allied land references, all these appeals and the respective cross objections in respective first appeals are decided and disposed of by this common judgment and order.
[1.1] Feeling aggrieved and dissatisfied with the impugned common judgment and award passed by the learned Reference Court by which the learned Reference Court has partly allowed the land references filed by the original claimants and has awarded the additional compensation at the market price of the acquired lands at the rate of Rs.21.48 per sq. meter and awarding statutory benefits to the original claimants under Section 23(1A), 23(2) and 28 of the Land Acquisition Act, 1894 [hereinafter referred to as "Act"], the Special Land Acquisition Officer and the State of Gujarat have preferred present First Appeal Nos.231/2012 to 236/2012 and First Appeal No.238/2012 to 241/2012.Page 2 of 44 C/FA/231/2012 CAV JUDGMENT
Similarly, the acquiring body - original opponent Nos.3 and 4 - General Manager, Narmada Project Rehabilitation and Another have also preferred First Appeal No.2154/2010 to 2163/2010.
[1.2] Feeling aggrieved and dissatisfied with the amount of compensation determined and awarded by the learned Reference Court, original claimants have also preferred cross objections in respective First Appeals in Cross Objection Nos.126/2013 to 129/2013 and Cross Objection Nos.38/2013 to 43/2013 in respective First Appeals to enhance the amount of compensation.
[1.3] The statement showing the particulars of the respective First Appeals preferred by the acquiring body; corresponding First Appeals preferred by the Special Land Acquisition Officer, State of Gujarat; number of cross objection filed by the original claimants; name of the claimants; name of the village; LAR Numbers; award numbers; date of section 4 notification; date of section 6 notification; amount of compensation as per the consent award declared by the Special Land Acquisition Officer is as under:
Statement 1 FA By FA by Obj. by Name of Name of LAR Award Sec.4 Sec.6 Amount SSPA SLO claimant claimant village No./ No./ Notification Notification compen Date/ Year Date Date sation as Year per award/sq. mt.
2154/ 2391/ Jagabhai Kundli 2003/ 38/1993 23/12/93 18/01/94 3.70
2010 2012 Bhagabhai Uncha 2000
Baria Kalam
2155/ 238/ Tulsibhai Laved 1998/ 27/1993 21/08/93 18/08/94 3/75
2010 2012 Ramjibhai 2000
Patel
2156/ 236/ 126/ Karsanbhai Fhanta 2004/ 5/95 29/12/95 09/10/96 3.00
2010 2012 2013 Gordhanbhai 2000
2157/ 235/ 43/ Dahyabhai Malu 1996/ 12/ 19/09/96 24/04/97 3.20
2010 2012 2013 Maganbhai 2000 1996
2158/ 234/ Sumitraben Malu 1995/ 25/ 19/09/06 24/04/97 3.20
2010 2012 Ramanlal 2000 1996
Page 3 of 44
C/FA/231/2012 CAV JUDGMENT
Patel
2159/ 233/ Vidhyaben Malu 1997/ 25/ 19/09/96 24/04/97 3.20
2010 2012 Shivabhai 2000 1998
Patel
2160/ 240/ Indravadan Sanoli 2001/ 17/ 07/12/95 08/08/96 2.96
2010 2012 Gokaldas 2000 1995
Patel
2161/ 241/ 129/ Vinodbhai Sanoli 2002/ 17/ 07/12/95 08/08/96 2.96
2010 2012 2013 Nagajibhai 2000 1995
Patel
2162/ 231/ 38/ Radhaben Malu 1999/ 26/ 09/10/96 13/03/97 3.12
2010 2012 2013 Mathur Patel 2000 1996
2163/ 232/ Jasodaben Malu 2000/ 26/ 09/10/96 13/03/97 3.12
2010 2012 Bhilalbhai 2000 1996
Patel
Statement 2
FA By FA by XObj. by Name of Name of Date of Date of Date of Date of
SSPA SLO claimant claimant village consent Schedule 15 possession application for
agreement given as per enhancement
agreement of
compensation
to SLO
2154/ 2391/ Jagabhai Kundli 15/5/92 19/8/93 20/5/92 16/5/95
2010 2012 Bhagabhai Uncha
Baria Kalam
2155/ 238/ Tulsibhai Laved 30/3/92 27/4/93 13/5/92 16/5/95
2010 2012 Ramjibhai
Patel
2156/ 236/ 126/ Karsanbhai Fhanta 14/5/90 14/5/90 6/1/90 16/5/95
2010 2012 2013 Gordhanbhai
2157/ 235/ 43/ Dahyabhai Malu 7/6/93 24/1/90 16/5/95 16/5/95
2010 2012 2013 Maganbhai
2158/ 234/ Sumitraben Malu 7/6/93 24/1/90 16/5/95 16/5/95
2010 2012 Ramanlal
Patel
2159/ 233/ Vidhyaben Malu 7/6/93 24/1/90 16/5/95 16/5/95
2010 2012 Shivabhai
Patel
2160/ 240/ Indravadan Sanoli 29/3/89 29/3/89 25/1/90 16/5/95
2010 2012 Gokaldas
Patel
2161/ 241/ 129/ Vinodbhai Sanoli 29/3/89 29/3/89 25/1/90 16/5/95
2010 2012 2013 Nagajibhai
Patel
2162/ 231/ 38/ Radhaben Malu 20/7/93 9/1/90 16/5/95
2010 2012 2013 Mathur Patel
2163/ 232/ Jasodaben Malu 20/7/93 9/1/90 16/5/95
2010 2012 Bhilalbhai
Patel
Date of Order passed by SLO u/S.18 - 07/07/2000
Amount awarded by District Court - Rs.21.48 per sq. meter Page 4 of 44 C/FA/231/2012 CAV JUDGMENT [2.0] Facts leading to the respective first appeals and the cross objections in respective first appeals and cross objections in nutshell are as under:
[2.1] That the lands in question situated at village Kundli, Kavitha, Khandewal, Fanta, Laved, Malu and Sanoli came to be acquired under the provisions of the Act. It appears that prior to the issuance of the notification under Section 4 of the Act, the consent agreements came to be entered into between the acquiring body and the land owners in the year 1989. That the possession of the acquired lands in question situated at different villages as stated hereinabove came to be handed over to the acquiring body and acquiring body took the possession of the acquired lands in question with the consent of the original owners in the year 198990. It also appears that at the time of handing over the possession by the original land owners and/or taking over the possession of the land in question by the acquiring body, the land owners were paid 80% of the amount of compensation as agreed under the consent agreements which came to be accepted by the original land owners without raising any objections and/or without protest. Therefore, since 198990, the acquiring body was in possession of the acquired lands in question situated at different villages for the public purpose and as such with the consent of the original land owners and as per the consent agreements entered into between the parties.
[2.2] It appears that all of a sudden and for the first time in the year 1995 the original claimants original land owners made a grievance with respect to the amount of compensation for the lands acquired and claimed the compensation at the rate of Rs.50 per sq. meter. It appears that as such the said application was made for making a reference under Section 18 of the Act to the concerned District Court/Reference Court. In the said application, it was stated that they came to know about the Page 5 of 44 C/FA/231/2012 CAV JUDGMENT compensation paid when the award came to be declared on 06.04.1995. That the said application was submitted before the Special Land Acquisition Officer, Vadodara. It appears that there were some defects and/or full particulars of the lands acquired were not furnished and therefore, advocate appeared on behalf of the original land owners was called upon to furnish the full particulars and to remove the defects. However the original owners did not furnish full particulars and remove the defects and therefore, by communication dated 01.12.1995, the Special Land Acquisition Officer informed the advocate of the original land owners that their application is filed. It appears that feeling aggrieved and dissatisfied with the aforesaid communication dated 01.12.1995, by which for not furnishing the full particulars of the lands acquired as well as not removing the defects, the application submitted by the original land owners came to be filed, original land owners preferred Special Civil Application Nos.4112/1998 and other allied special civil applications before this Court and the Division Bench of this Court vide order dated 25.01.1999 partly allowed the aforesaid special civil applications and quashed and set aside the communication dated 01.12.1995 and directed the Special Land Acquisition Officer to consider the application submitted by each petitioner for making reference to the Court in accordance with law. At this stage it is required to be noted that the learned Government Pleader at the time of hearing of aforesaid Special Civil Applications stated at the Bar that reference applications are rejected because consent award was made by the Special Land Acquisition Officer under the provisions of Section 11(2) of the Act.
However, as the order dated 01.12.1995 did not indicate that the prayer made by the original land owner in each petition to refer the matter to the District Court, Vadodara for the purpose of determination of compensation is rejected on the ground that consent award has been made by the Land Acquisition Officer under Section 11(2) of the Act and Page 6 of 44 C/FA/231/2012 CAV JUDGMENT therefore, the Division Bench directed the Special Land Acquisition Officer to consider the application submitted by each petitioner for making reference to the Court in accordance with law.
At this stage it is required to be noted that in the meantime and after the application dated 6.4.1995 the Special Land Acquisition Officer issued the notification under Section 4 of the Act and even the declaration under Section 6 of the Act with respect to the respective acquired lands on different dates the particulars of which are given in the above statement. Not only that when the Division Bench passed the order on 25.01.1999, the Special Land Acquisition Officer has already declared the respective awards/consent awards under Section 11(2) of the Act determining and awarding the compensation at different rates for different lands ranging from Rs.2.96 per sq. meter to Rs.3.75 per sq. meter particulars of which are mentioned in the above statement. That thereafter the Division Bench passed the order on 25.01.1999 in aforesaid Special Civil Applications directing the Land Acquisition Officer to consider the application submitted by the original land owners for making the reference to the Court in accordance with law.
[2.3] For the sake of convenience the facts of LAR Case No.1999/2000 are considered which are as under:
It appears that despite the fact that though there was no specific direction issued by the Division Bench in its order dated 25.01.1999 directing the Special Land Acquisition Officer to make the reference to the District Court, considering the direction/order passed by the Division Bench dated 25.01.1999 in aforesaid Special Civil Application Nos.4112/1998 and other allied special civil applications as direction to make the references to the District Court and despite the fact that the Special Land Acquisition Officer specifically observed that the consent award is declared and possession of the land has been handed over to Page 7 of 44 C/FA/231/2012 CAV JUDGMENT the acquiring body with consent, by order dated 07.07.2000, the Special Land Acquisition Officer made the references to the District Court, at the instance of the land owners for determination of the compensation under Section 18 of the Act.
[2.4] That the said land references came to be opposed by the Special Land Acquisition Officer by submitting that against the consent award declared under Section 11(2) of the Act and the lands were acquired under the consent agreement, the references under Section 18 of the Act are not maintainable and therefore, it was requested to dismiss the land references as not maintainable. Not only that but even application was submitted below Exh.22 in Land Reference Case No.1999/2000 under Order 14 Rule 1 and 2(2) of the Code of Civil Procedure, 1908 to raise the preliminary issue with respect to jurisdiction and maintainability of Reference by submitting that no award has been declared under Section 11 of the Act and still the references are made under Section 18 of the Act and even the reference applications were made even prior to the declaration of the award and therefore, the reference Court has no jurisdiction as the references under Section 18 of the Act are not maintainable. It appears that the learned Judge rejected the said application by order dated 09.07.2008. That thereafter the original opponents filed the written statements opposing the respective land references on merits as well as on the ground that against the consent award the reference under Section 18 of the Act would not be maintainable. That the references were opposed by the original opponent Nos.1 to 3 - Special Land Acquisition Officer, State of Gujarat by filing the written statement at Exh.14 contending inter alia that the contents of the applications are not correct. It was also submitted that the references have been filed against the "consent award", hence, as per the provisions of the Act, it cannot be entertained. It was submitted that the claimants have given their consent and signed the compromise at the Page 8 of 44 C/FA/231/2012 CAV JUDGMENT time of acquisition of the land, and as per the consent award the claimants have been paid the compensation. It was also submitted that in para 8 of Schedule 5 it was clearly mentioned that the claimants have waived their right to file the references under Section 18 of the Act and the claimants had executed the said compromise deed, and based on the same, consent awards have been published under Section 11 of the Act by opponent No.2 wherein also the consent/compromise deed given by the claimants have been mentioned and therefore, it was requested to dismiss the said references.
[2.5] That the references were also opposed by original opponent No.4 by filing the written statement at Exh.20 in LAR No.1999/2000. It was contended that for rehabilitation and development of oustees under the Narmada Canals Project, the lands in question were required to be acquired under the Narmada Canals Project, and therefore, it was decided to pay 80% to 90% of compensation amount in advance by deciding the compensation of the lands to be acquired by meeting the owners of the land. It was further contended that the lands of the claimants were acquired by consent and in the meeting dated 29.03.1989 and the price of the lands were fixed at Rs.32,100/ per hectare by the committee consisting of Government Officers, Members of Panchayat and Social Workers and to which the claimants had given their consent and for which the claimants executed the deeds and accordingly, 80% to 90% of the amount was given in the year 1990 prior to the publication of the award and the remaining 10% of the amount was given thereafter to the claimant of which the claimants had given receipt to the opponents. It was further contended that as per the compromise deed the claimants had accepted that no any reference would be made by them and that they had accepted the price of the land consisting of trees/land construction if any on the acquired lands and Page 9 of 44 C/FA/231/2012 CAV JUDGMENT therefore, on payment of the aforesaid amount, the Special Land Acquisition Officer had published notification in the Gazette and thereafter they have published the award on 12.06.1997. It was further contended that claimants had given consent and thereupon the market price was decided and accepted by the claimants, accordingly consent awards were published, therefore, the claimants cannot file any reference for getting additional compensation as per the provisions of the Act. It was further contended that the references filed by the claimants are time barred and as such they were filed prior to the publication of the award under Section 11, and after publication of the awards, the claimants have not filed any reference under Section 18 of the Act and therefore, the same are not tenable at law. Therefore, it was requested to dismiss the said references.
[2.6] That the learned Reference Court framed the following issues at Exh.17 [1] Whether claimant proves that the compensation awarded by the Special Land Acquisition Officer is inadequate and not proper? [2] Whether the claimants are entitled to get additional compensation, if yes, at what amount?
[2A] Whether the reference application is tenable u/s.18 of the Land Acquisition Act and Compensation Act?
[3] What order and decree?
[3.0.] That both the parties led the evidences, documentary as well as oral. On behalf of the claimants one Maheshbhai Mathurbhai Patel - claimant of LAR Case No.1999/2000 came to be examined at Exh.50. The claimants produced on record the following documentary evidences: Page 10 of 44 C/FA/231/2012 CAV JUDGMENT Exh.No. Particulars 50 Deposition of Maheshbhai Mathurbhai Patel - claimant of L.R. Case No.1999/2000 32 Certified copy of Schedule15 33 Certified copy of Deed Agreement 34 Panchkyas made by Talati cum Mantri of Malu Village Panchayat for the land bearing Block No.181 dated 20/2/2001 35 Certified copy of Award Case No.26/96 dtd. 12/6/1997 published by the Special Land Acquisition Officer 36 Copy of the order passed by the Hon'ble High Court of Gujarat in Special Civil Applications dtd.25/1/1999 37 Copy of the letter dtd. 3/5/1999 written by the claimant to the Special Land Acquisition Officer requesting to send the reference before the District Court 38 Copy of Legal Notice sent to the opponents dtd.27/12/2000 42 Reply given by the opponent dtd.2/4/2001 to the notice of the claimant 43 & 44 Extract of village Form No.7/12 of land bearing Block No.181 for the period of 1984 to 1994 and 1994 to 2004 45 Certified copy of Map of village Malu 46 Certificate given by TalaticumMantri of Malu Gram Panchayat dtd. 11/4/2008 47 Certified copy of of Map of Sankheda Taluka 48 Certified copy of judgment given on 31/12/2004 by the Hon'ble 2nd Jt. Civil Judge (S.D.) at Vadodara in the matter of Main Land Reference Case No.2306/1996 49 Copy of the order passed on 31/1/1995 by the Hon'ble Extra Asst. Judge, Vadodara in Land Reference Case No.33/1989 [3.1] That on behalf on the opponents one Shri D.L. Rathod came to be examined at Exh.61 and one Shri Navin P. Patel came to be examined at Exh.79. The opponents also produced the documentary evidences as under:
Page 11 of 44 C/FA/231/2012 CAV JUDGMENT Exh. Particulars
No.
61 Deposition of the Opponent No.1 to 3's witness Mr. D.L. Rathod
79 Deposition of the Opponent No.4's witness Mr. Navneet P. Patel
62 Copy of Deed of Agreement executed by claimant
63 Copy of Agreement as per Schedule15 executed by claimant.
64 Copy of Award Case No.26/96
53 Notes of Meeting dtd. 29/3/1989 made by Addl. Collector,
Vadodara
54 Copy of judgment given on 26/4/2007 by the Hon'ble 6 th Addl.
Sr. Civil Judge, Vadodara in the matter of Main Land Reference Case No.22/1987 55 Copy of Award dtd. 22/3/2003 of Village Sankhrada given by the 5th Jt. Civil Judge (S.D.), Vadodara in Land Ref. Case No.237/1984 56 Copy of Judgment given on 21/11/2002 by the Hon'ble 5 th Jt.
Civil Judge (S.D.) at Vadodara in the matter of Land Reference Case No.103/1991 57 Copy of judgment given on 30/9/2002 by the Hon'ble 6 th Jt.
Civil Judge (S.D.) at Vadodara in the matter of Land Reference Case No.479/1990 58 Copy of judgment given on 30/9/2002 by the Hon'ble 6 th Jt.
Civil Judge (S.D.) at Vadodara in the matter of Land Reference Ase No.480/1990 59 Copy of judgment given on 17/12/2002 by the Hon'ble 5th Jt.
Civil Judge (S.D.) at Vadodara in the matter of Main Land Reference Case No.483/1990 78 Certified copy of Map of Taluka Sankheda [3.2] That thereafter the learned Reference Court first decided the issue No.[2A]. It was contended on behalf of the original claimants that their consent decree / deed of agreement produced at Exhs.32 and 33 were by obtaining the signatures on the blank forms in the year 1990. It was the case on behalf of the claimants that prior to making of the payment of the acquired land, the oustees have started residing in the land, so that Page 12 of 44 C/FA/231/2012 CAV JUDGMENT the claimants were put to an awkward position and that the opponents have taken the possession of the land prior to making the payment by giving threats. It was further the case on behalf of the claimants that prior to making the payment, construction of premises were made on the acquired land of the claimants. In support thereof the claimants relied upon the panchnama drawn by the Talati cum Mantri of Malu Gram Panchayat produced at Exh.34. It was also the case on behalf of the claimants that the signature of the claimants on various forms were taken in the year 1990 and the opponents had made payment of some amount and upon asking to the officer it was informed that other payment will be made at the time of publication of award. It was submitted that thereafter the advocate submitted the reference applications on 16.05.1995 for getting more compensation under Section 18 of the Act which came to be rejected and in the meantime the award came to be declared/published on 12.06.1997, against rejection of their applications which the claimants preferred Special Civil Applications before this Court and this Court directed the Special Land Acquisition Officer to reconsider the applications as early as possible and consequently by order dated 07.07.2000 the Special Land Acquisition Officer has passed an order setting aside the previous order dated 12.06.1997 and ordered to file the land reference cases in the District Court for redetermination of the compensation of the acquired land awarded to the claimants on merits. Therefore, it was the case on behalf of the claimants that their references were made in accordance with law and therefore, the same was maintainable.
[3.3] It appears that it was the case on behalf of the original opponent Nos.1 to 3 on the basis of the deposition of their witness Shri D.L. Rathod, Special Land Acquisition Officer, Narmada Project, Unit No.4/14, Vadodara vide Exh.61, that the lands of the village Malu were Page 13 of 44 C/FA/231/2012 CAV JUDGMENT acquired for the purpose of construction and rehabilitation of ouster of Narmada Canal Projects and accordingly the consent award was published on 12.06.1997 vide Case No.26/1996 and it was published with the consent of the claimants and therefore, the claimants have no right to file the reference under Section 18 of the Act.
[3.4.] It was the case on behalf of the original opponent No.4 - acquiring body on the basis of the deposition of their witness Maulik examined at Exh.79 that for the rehabilitation of ousters the construction of the premises were required to be carried out, and for that the lands of village Malu were decided to be acquired by making consent award and for that one committee consisting of Additional Collector, President of District Panchayat, Vadodara and various other officers of various institutions and Sarpanch of various villages as members and after making discussions with the owners of the lands, the amount of compensation were fixed and payment of 80% to 90% were made at the time of taking the possession of the land and the balance amount were decided to be made at the time of publication of consent award. It was also the case on behalf of the opponent No.4 - acquiring body that it was decided in the meeting dated 29.03.1989 that a sum of Rs.31,200/ per hectare would be paid for the acquired land. It was further the case on behalf of the original opponent No.4 that the claimant agreed to give their amount to the Nigam for Rs.31,200/ per hectare and therefore, they executed the deed of agreement on Schedule 15 in favour of the opponents. It was further the case on behalf of the original opponent No.4 that thereafter and considering the consent agreement produced at Exhs.62 and 63, the Special Land Acquisition Officer published the notifications under Sections 4 and 6 of the Act and published the award under Section 11(2) of the Act on 12.06.1997. It was further the case on behalf of the original opponent No.4 that at the time of taking the Page 14 of 44 C/FA/231/2012 CAV JUDGMENT possession of the lands, the claimants were paid 80 to 90% of the amount of total compensation to be paid, which is also mentioned in the award Exh.64. It was therefore the case on behalf of the opponents that as the award declared by Special Land Acquisition Officer is a consent award under Section 11(2) of the Act, no reference under Section 18 of the Act can be made and therefore, the references were not maintainable under Section 18 of the Act.
[3.5.] That by answering issue No.[2A] in favour of the claimants, the learned Reference Court has observed that after the order dated 25.01.1999 passed by the Division Bench of this Court in Special Civil Application Nos.4112/1998 and other allied matters, the Special Land Acquisition Officer has set aside the consent award and passed the order dated 07.07.2000 making land reference cases to the District Court for redetermination of the amount of compensation of the acquired lands awarded to the claimants on merits and therefore, when the order dated 07.07.2000 has been based on the order of the High Court, the opponents cannot raise the plea that the reference applications of the claimants under Section 18 of the Act is not maintainable and therefore, consequently the learned Reference Court has held the issue No.[2A] in affirmative and it is held that the reference applications under Section 18 of the Act are tenable and maintainable.
[4.0.] That on appreciation of evidence and relying upon the previous judgment and award passed by the learned Reference Court in LAR No.33/1989 of village Kundi, Taluka Sankheda, District Vadodara produced at Exh.49 for which the notification under Section 4 of the Act was published on 09.12.1996 and considering the time gap of 7 years between taking over the possession of the acquired lands in question and the notification under Section 4 of the Act with respect to the lands acquired of village Kundi [Exh.9] granting 10% price rise per annum the Page 15 of 44 C/FA/231/2012 CAV JUDGMENT learned Reference Court has held that the claimants shall be entitled to additional compensation of the land acquired at the rate of Rs.21.48 per sq. meter and thereafter has granted the benefits under Section 23(2), 23(1A) and Section 28 of the Act and has also directed to pay the interest on additional amount of compensation under Section 28 of the Act as well as the interest on solatium from the date of taking over the possession i.e. 1989.
[4.1.] Feeling aggrieved and dissatisfied with the impugned judgment and award passed in respective land reference cases, the original opponents have preferred First Appeal Nos.231/2012 to 236/2012 and First Appeal No.238/2012 to 241/2012 and feeling aggrieved and dissatisfied with the amount of compensation awarded by the learned Reference Court and not awarding the compensation at the rate of Rs.50 per sq. meter, the claimants have also preferred cross objections to enhance the amount of compensation.
[5.0] Shri Dhawan Jayswal, learned AGP has appeared on behalf of the Special Land Acquisition Officer and State of Gujarat and Shri B.D. Karia, learned advocate has appeared on behalf of the acquiring body. Shri Ashish Shah, learned advocate has appeared on behalf of the original claimants - original owners in respective first appeals as well as in cross objections.
[6.0.] The submissions made by Shri Dhawan Jayswal, learned AGP appearing on behalf of the Special Land Acquisition Officer and the State of Gujarat and Shri B.D. Karia, learned advocate appearing on behalf of the acquiring body are common submissions and therefore, to avoid any further repetition, common submissions are recorded.
[6.1.] Shri Karia, learned advocate appearing on behalf of the acquiring Page 16 of 44 C/FA/231/2012 CAV JUDGMENT body and Shri Dhawan Jayswal, learned AGP appearing on behalf of the Special Land Acquisition Officer and State of Gujarat have vehemently submitted that the reference Court has materially erred in answering issue No.[2A] in affirmative and in holding that the respective land references under Section 18 of the Act are tenable and maintainable under the law.
[6.2] It is submitted by the learned advocates appearing on behalf of respective appellants herein - original opponents that the learned Reference Court has materially erred in not properly appreciating the fact that as such the award declared by the Special Land Acquisition Officer was / were under section 11(2) of the Act which were consent awards and therefore, as per the settled proposition of law laid down by the Hon'ble Supreme Court as well as this Court, against the consent awards under section 11(2) of the Act, the reference under Section 18 of the Act would not be tenable and/or maintainable. It is further submitted that in the present case as such the lands in question came to be acquired with the consent of the original land owners and for which the consent agreements were executed by the original land owners in the year 1989 and even the compensation / price was determined with the consent of the original land owners in the High Level Committee consisting of Government Officers, Members of Panchayat and Social Workers. It is submitted that not only that even the possession of the acquired lands in question were taken over in the year 1989 with the consent of the original land owners and on payment of 80% to 90% of advance compensation in the year 198990. It is submitted that thereafter at the relevant time the advance compensation was received by the land owners without raising any objection and/or without protest. It is submitted that the learned Reference Court has not properly appreciated the fact that thereafter till 1995 no objection was raised by any of the land owners that they had signed the consent agreements on Page 17 of 44 C/FA/231/2012 CAV JUDGMENT the blank papers and/or they accepted 80% of the advance payment of compensation under protest and/or their possession of the acquired land was taken over by force. It is submitted that thereafter for the first time they made a grievance in the year 1995 with respect to inadequate amount of compensation and requested to make the references under Section 18 of the Act even prior to the declaration of the award. It is submitted that the learned Reference Court has materially erred in not appreciating the fact that even the application for making the reference under Section 18 dated 16.05.1995 was made prior to the declaration of the award under section 11 of the Act, which as such was not maintainable.
[6.3.] it is further submitted by the learned advocates appearing on behalf of respective appellants - original opponents that the learned Reference Court has materially erred in observing that by order dated 07.07.2000, the Special Land Acquisition Officer had set aside the consent award/s. It is submitted that aforesaid is factually incorrect. It is submitted that as such the Special Land Acquisition Officer had no jurisdiction and/or authority to cancel/set aside the consent award. It is submitted that as such and from the order dated 07.07.2000 it is evident that by the said order the Special Land Acquisition Officer has not set aside the consent award as observed by the learned Reference Court.
[6.4.] It is further submitted by learned advocates appearing on behalf of respective appellants herein - original opponents that even the learned Reference Court has materially erred in holding the issue No.[2A] in affirmative and in holding that references under Section 18 of the Act would be tenable and/or maintainable, by observing that in view of the order passed by the Division Bench of this Court in Special Civil Application Nos.4112/1998 and other allied matters and thereafter Page 18 of 44 C/FA/231/2012 CAV JUDGMENT when the Special Land Acquisition Officer has passed an order on 07.07.2000, thereafter it is not open for the opponents to make a grievance that the reference under Section 18 is not maintainable. It is submitted that as such the Special Land Acquisition Officer while passing the order dated 07.07.2000 as well as the learned Reference Court has misinterpreted and misread the order dated 25.01.1999 passed by the Division Bench of this Court in Special Civil Application Nos.4112/1998 and other allied matters. It is submitted that as such the Division Bench of this Court only directed the Special Land Acquisition Officer to decide the applications for making a reference under Section 18 of the Act in accordance with law. It is submitted that while passing the order dated 07.07.2000, the Division Bench did not specifically directed the Special Land Acquisition Officer to make reference under Section 18 of the Act. It is submitted that therefore both, the Special Land Acquisition Officer while passing the order dated 07.07.2000 as well as the Reference Court have materially erred in considering and/or treating the order passed by the Division Bench of this Court in Special Civil Application Nos.4112/1998 and other allied matters as direction directing the Special Land Acquisition Officer to make a reference under Section 18 of the Act.
[6.5] It is further submitted and even relying upon the cross objections of the claimant examined on behalf of the claimants that even it was admitted that they had signed the consent agreements in the year 1989 and that the price was determined by the High Level Committee in the year 1989 and they were paid the part advance compensation in the year 198990. It is submitted that even Form No.15 was also signed by the original owners. It is submitted that in that view of the matter when the lands in question came to be acquired under consent agreements signed by original land owners and the possession was also handed over in the Page 19 of 44 C/FA/231/2012 CAV JUDGMENT year 198990 on execution of the consent agreements signed by the original land owners and on receipt of 80% to 90% advance compensation and thereafter when the consent award came to be declared under Section 11(2) of the Act, the learned Reference Court has materially erred in holding that the references under Section 18 of the Act would be maintainable.
[6.6.] It is further submitted that the learned Judge has materially erred in not properly appreciating the fact that even the applications for making references under Section 18 of the Act was made prior to the declaration of the award under Section 11(2) of the Act and thereafter no applications have been made for making a reference under Section 18 of the Act. Therefore, even otherwise as such against the award/consent award under Section 11(2) of the Act, there were no applications for making reference and therefore, the references made on the basis of the application dated 16.05.1995 were ought to have been held as not maintainable under the Act.
[6.7.] Learned advocates appearing on behalf of the respective appellants herein - original opponents have heavily relied upon the following decisions of the Hon'ble Supreme Court as well as this Court in support of their submissions that the land references in question which were made at the instance of the original claimants / land owners on the basis of their applications dated 16.05.1995 were not maintainable under Section 18 of the Act and therefore, the same were not required to be decided by the learned Reference Court on merits.
1. State of Gujarat v. Daya Shamji Bhai AIR 1996 SC 133
2. Abdul Aziz Abdul Razak and another v. Municipal Corpn. of Greater Bombay and another AIR 1996 SC 1350(1) Page 20 of 44 C/FA/231/2012 CAV JUDGMENT
3. Ishwarlal Premchand Shah and others etc. v. State of Gujarat and Others AIR 1996 SC 1616(1)
4. Ismail Ibrahim Koya and Ors. v. Officer of Special Duty (Land AcquisitionHi) and Anr.
1997(3) GLR 2226
5. Ismail Ibrahim Pandoor through P.A.H. Bai Mariam Suleman Pandoor v. Officer of Spl. Duty Land Acquisition Unit III and Ors. 1999(3) GLR 2688
6. Hirabhai Chhotabhai Patel and Ors. v. Officer on Special Duty, GIDC and Anr.
AIR 1998 Guj. 114
7. Sonda Sura Bharwad v. Deputy Collector 2005(2) GLR 1042
8. State of Karnataka and another v. Sangappa Dyavappa Biradar and others AIR 2005 SC 2204
9. Rabnistan Ismailbhai Patel Legal heir and representative of Deceased Ismailbhai Ahmedbhai Patel v. State of Gujarat thr' Collector and 3 Ors.
MANU/GJ/7259/2007 [6.8.] Learned advocates appearing on behalf of the appellants herein - original opponents have submitted that even otherwise on merits also the learned Judge has materially erred in awarding the additional compensation at the rate of Rs.21.48 per sq. meter. It is submitted that while awarding the additional compensation at the rate of 21.48 per sq. meter, the learned Reference Court has considered the previous judgment and award passed by the learned Reference Court in LAR No.33/1989 produced at Exh.49 with respect to the lands of village Kundi for which the notification under Section 4 of the Act was published on 09.12.1996. It is submitted that thereafter the learned Page 21 of 44 C/FA/231/2012 CAV JUDGMENT Reference Court has granted 10% price rise per annum and has determined the compensation for the lands acquired by granting 70% increase considering the time gap of 7 years from the date of taking over the possession of the lands in question i.e. 1989 and the notification under Section 4 of the Act published with respect to the lands acquired of village Kundi for which the land reference case (Exh.49) was decided. It is submitted that in the present case notification under section 4 of the Act came to be published in the year 199596 and in two cases in the month of August and December 1993. It is submitted that the learned Reference Court has materially erred in not appreciating the fact that as such in the year 198990 the respective claimants were paid 80% to 90% of advance compensation as agreed. It is submitted that even otherwise the learned Reference Court has materially erred in awarding additional compensation at the rate of Rs.21.48 per sq. meter considering the judgment and award produced at Exh.49. It is submitted that as such Exh.49 is not the full judgment and award passed by the learned Reference Court in LAR No.33/1989 but as such it is the bill of cost and therefore, in absence of any full judgment and award, the Reference Court has materially erred in relying upon Exh.49. It is submitted that even otherwise the learned Reference Court has not considered the other evidences on record while awarding the additional compensation at the rate of Rs.21.48 per sq. meter. It is further submitted that even otherwise unless and until the consent award under Section 11(2) of the Act are challenged and set aside, the learned Judge has materially erred in holding that reference under Section 18 of the Act would be maintainable.
[6.9.] It is further submitted that even otherwise the learned Reference Court has materially erred in awarding the interest on the additional amount of compensation under Section 28 of the Act from the date of Page 22 of 44 C/FA/231/2012 CAV JUDGMENT taking over the possession and even in awarding the interest on solatium from the date of taking over the possession i.e. 198990. [6.10] Making above submissions and relying upon above decisions it is requested to allow the present appeals and quash and set aside the impugned judgment and awards passed by the learned Reference Court firstly by holding that the land reference under Section 18 of the Act were not maintainable and even in the alternative holding that the learned Reference Court has materially erred in awarding the additional compensation at the rate of Rs.21.48 per sq. meter and granting the benefit under Section 28 of the Act from the date of taking over the possession i.e. 198990.
By making above submissions it is also requested to dismiss the cross objections preferred by the original claimants.
[7.0] All these appeals are opposed by Shri Ashish Shah, learned advocate appearing on behalf of the original claimants. It is submitted that in the facts and circumstances of the case, the learned Reference Court has not committed any error in holding the issue No.[2A] in affirmative and in holding that the references at the instance of the alleged owners/claimants under section 18 of the Act were maintainable.
[7.1] It is submitted that it has come on record from the deposition of the witness examined on behalf of the original claimants that the consent agreements / Form No.15 were on blank papers signed and obtained by the acquiring body and that the claimants were not made aware that what exact amount of compensation they will be paid for the acquired lands. It is submitted that it has also come on record and according to the claimants that after they were paid the some amount towards compensation/advance compensation in the year 198990, time Page 23 of 44 C/FA/231/2012 CAV JUDGMENT and again they were making inquiries with respect to the amount of compensation to be paid and according to the claimants they were informed that they will be paid the just compensation in future and therefore, they waited and thereafter in the year 1995 through their advocate they made the application for redetermination of the compensation and to make references under Section 18 of the Act. It is submitted that the said applications came to be rejected by the Special Land Acquisition Officer and against which the original land owners preferred Special Civil Application before this Court and this Court directed the Special Land Acquisition Officer to reconsider its decision and decide the application of the petitioners for making a reference under Section 18 of the Act and thereafter when the Special Land Acquisition Officer passed an order 07.07.2000 directing to make the reference under Section 18 of the Act even considering the order passed by the Division Bench of this Court in aforesaid Special Civil Applications as rightly observed by the learned Reference Court, it was not open for the Special Land Acquisition Officer and/or acquiring body to raise objection with respect to maintainability of the references under Section 18 of the Act.
[7.2] It is further submitted by Shri Ashish Shah, learned advocate appearing on behalf of the original claimants that even the application for redetermination of amount of compensation was made even prior to declaration of the award which has not been considered by the Special Land Acquisition Officer while declaring the award under Section 11 of the Act. It is submitted that as such while declaring the award purported to be under Section 11(2) of the Act, provisions of section 11 are not satisfied and therefore, as such the award declared under Section 11(2) cannot be said to be consent award and therefore, the references at the instance of the claimant even against the said award would be Page 24 of 44 C/FA/231/2012 CAV JUDGMENT maintainable under Section 18 of the Act. It is submitted that in the peculiar facts and circumstances of the case more particularly when even some of the consent agreements are having the blank date, the learned Reference Court has rightly held that the reference at the instance of the original land owners/claimants under Section 18 of the Act would be maintainable and has rightly redetermined the amount of compensation.
[7.3.] Shri Shah, learned advocate appearing on behalf of the original claimants has heavily relied upon the following decisions of this Court as well as Gauhati High Court in support of his submissions that in the facts and circumstances of the case, the reference applications at the instance of the claimants are rightly held to be maintainable under Section 18 of the Act.
(1) Heirs of Chhitabhai M. Patel v. State of Gujarat & Ors.
1997(1) GLH 424 (2) State of Meghalaya & Ors. v. Winkle Star Kharumlong & Ors. AIR 2008 Gauhati 127 (3) State of Gujarat v. Jayantbhai Chaturbhai Patel S/o.Deceased 2012(1) GCD 790 = 2012 (30) GHJ 14 [7.4] Shri Ashish Shah, learned advocate appearing on behalf of the original claimants has further submitted that as such the learned Reference Court has not committed any error in relying upon the previous judgment and award passed in LAR No.33/1989 with respect to the lands acquired of village Kundi produced at Exh.49 and awarding additional compensation at the rate of Rs.21.48 per sq. meter. It is submitted that as such in the facts and circumstances of the case, learned Reference Court ought to have awarded the compensation determining the market price at the rate of Rs.50 per sq. meter for which Page 25 of 44 C/FA/231/2012 CAV JUDGMENT the original claimants have preferred the cross objections. In support of their cross objections, Shri Shah, learned advocate appearing on behalf of the original claimants has submitted that the claimants shall be entitled to the compensation of the acquired lands atleast at the rate of Rs.36.53 per sq. meter. It is submitted that in the present case the learned Reference Court ought to have considered the market price of the acquired lands on the date of section 4 notification i.e. 23.12.1996. It is submitted that therefore the learned Reference Court has erred in not considering and not calculating the market value of the acquired lands as on the date of notification under section 4 of the Act. Therefore, it is requested to allow the cross objections and hold that the claimants shall be entitled to the compensation for the acquired lands at the rate of Rs.36.53 per sq. meter with interest and solatium and other statutory benefits.
[7.5] Now, so far as the contention on behalf of the appellants herein - original opponents that the learned Reference Court has materially erred in granting the benefit under Section 28 of the Act from the date of taking over the possession i.e. 198990 and even the solatium and the interest on solatium from the date of taking over the possession i.e. 198990, it is submitted that as the possession of the lands in question was taken over in the year 198990, the learned Reference Court has not committed any error in granting the benefits under Section 28 of the Act and interest on additional amount of compensation and the solatium and interest on solatium from the date of taking over the possession i.e. 198990. In support of his above submissions, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Madishetti Bala Ramul (D) By LRs. v. The Land Acquisition Officer reported in JT 2007(8) SC 180.
Making above submissions and relying upon above decisions it is Page 26 of 44 C/FA/231/2012 CAV JUDGMENT requested to dismiss the appeals preferred by the appellants herein - original opponents and allow the cross objections preferred by the original land owners - original claimants.
[8.0] Heard learned advocates appearing on behalf of the respective parties at length. Perused the impugned judgment and awards passed by the learned Reference Court and appreciated / reappreciated the entire evidence on record from the paper book / Record & Proceedings received from the learned Reference Court.
[8.1] At the outset it is required to be noted that in the first appeals preferred by the original opponents - acquiring body as well as the Special Land Acquisition Officer, original opponents have assailed the findings recorded by the learned Reference Court more particularly answering issue No.[2A] in affirmative and in holding that the respective references under Section 18 of the Act were tenable and maintainable under the law. It is the case on behalf of the appellants - original opponents that as the lands were acquired by consent and the consent agreements were entered into and even the awards have been declared by the Special Land Acquisition Officer under Section 11(2) of the Act i.e. consent awards were declared reference under Section 18 of the Act were not maintainable under the provisions of the Act. Therefore, while deciding the aforesaid issue whether the respective references in question under Section 18 of the Act were maintainable or not, the law on the subject is required to be referred to and considered.
[8.2] In the case of Daya Shamji Bhai (Supra), the Hon'ble Supreme Court has observed and held that once the claimants have agreed to receive the compensation as per the contract agreement and they had also agreed not to seek any reference under Section 18 of the Act, no option is left to the parties under section 18 to seek reference. It is Page 27 of 44 C/FA/231/2012 CAV JUDGMENT further observed and held that subsection (2) of Section 11 of the Act gives right to parties to enter into an agreement to receive the award/compensation awarded under Section 11 of the Act in terms of the contract. It is further observed that contract between the owners and the Collector in writing of the terms to be included in the award of the Collector is conclusive and binds the parties and thereafter they would not be entitled to seek any reference for enhancement of the compensation required to be adjudicated under section 23(1) of the Act. It is further observed that it would be seen that when compensation was received under protest, section 18 gets attracted. It is further observed and held by the Hon'ble Supreme Court in the said decision that in view of the specific contract made by the claimants in terms of Section 11(2) of the Act, they are not entitled to seek a reference. Consequently, the Civil Court is devoid of jurisdiction to go into the adequacy of the compensation awarded by the Collector or prevailing market value as on the date of notification under Section 4(1) of the Act to determine the compensation under Section 23(1) of the Act and to grant statutory benefits.
[8.3] In the case of Abdul Aziz Abdul Razak (Supra), in a case where a consent award was declared under Section 11(2) of the Act as per the agreement between the parties, it is observed and held by the Hon'ble Supreme Court that Land Acquisition Officer was entitled to award interest as per the contract between the parties only and the claimants cannot get the benefit of enhancement of rate of interest.
[8.4] In the case of Ishwarlal Premchand Shah (Supra), in a case where consent decree is declared under Section 11(2) of the Act, award need not contain payment of interest, solatium and additional amount unless it is also part of the contract between the parties.
Page 28 of 44 C/FA/231/2012 CAV JUDGMENT[8.5] In the case of Ismail Ibrahim Koya (Supra), considering the similar set of facts and circumstances as in the present case and considering the decision of the Hon'ble Supreme Court in the case of Ishwarlal Premchand Shah (Supra) it is observed and held that it is permissible for the State to issue notification under Section 4 of the Act even in the case where the acquiring authority has entered into an agreement earlier. It is also observed and held that Form No.14 would apply to the case where the owners and persons interested in the land appear before the Collector and express their willingness to accept an agreed amount of compensation. It is held that if an agreement is executed earlier, then in that case, it is not necessary that the agreement should be in the prescribed Form No.14 because when they enter 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. It is held that it is open for the parties to enter into an agreement even prior to issuance of the notification under Section 4 of the Act. It is further observed and held that where the parties have entered into an agreement, then in that case, the agreed members is to be seen and not the market price as on the date of notification. In paras 15 to 20, the Division Bench has observed and held as under:
"15. We would like to refer the binding decision of the Supreme Court in the case of Ishwarlal Premchand Shah v. State of Gujarat, JT 1996 (4) S.C. 208. That was a case where before notification under Section 4 of the Act was issued, the owners and GIDC have entered into agreements in December 1980 whereby the owners agreed to part with possession of their lands so as to enable GIDC to establish Udyog Nagar thereon. Under the said agreements, GIDC 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 subsection (2) of Section 11 of the Act as applicable in Page 29 of 44 C/FA/231/2012 CAV JUDGMENT 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 Ishwarlal's case (supra), it is clear that it is permissible for the State 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 resile. 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 references, and the Court on evidence may determine the amount of Page 30 of 44 C/FA/231/2012 CAV JUDGMENT 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 State of Gujarat v. Daya Shamji Bhai, (1995) 5 SCC 746, 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."Page 31 of 44 C/FA/231/2012 CAV JUDGMENT
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."
[8.6] In the case of Ismail Ibrahim Pandoor (Supra), the Division Bench of this Court has observed and held that where there is an agreement pursuant to which the possession has been handed over and on making a part payment, the case would be covered by section 11(2) of the Act and therefore, the reference under Section 18 of the Act would not be competent. It is further held that a reference under Section 18 of the Act would be maintainable and/or competent only against the award declared under Section 11(1) of the Act.
[8.7] In the case before the Division Bench in the case of Sonda Sura Bharwad (Supra), where the award was declared by the Land Acquisition Officer under Section 11(2) of the Act in June 2002 as per the agreement entered into between the parties and the claimants withdrew the said amount immediately without any protest and thereafter, raised their objection with respect to inadequacy of the compensation after a period of almost one year and thereafter when the reference was sought under Section 18 of the Act, the Division Bench has rejected the said prayer and has held that such a prayer of making a reference cannot be granted.
[8.8] In the case of Sangappa Dyavappa Biradar (Supra), the Hon'ble Supreme Court has observed and held that the condition precedent for maintaining application for reference under Section 18 is non acceptance of the award by the awardee. Hence, when the consent awards were passed, statements were also made by the respective villagers declaring that they would not approach any Court for enhancement of the compensation or any other reason, the application Page 32 of 44 C/FA/231/2012 CAV JUDGMENT in terms of section 18 of the Act before the Special Land Acquisition Officer seeking reference to the Civil Court for determination of the quantum of compensation, were not maintainable. It is further observed and held by the Hon'ble Supreme Court in the said decision that an agreement between the parties as regard the value of the lands acquired by the State is binding on the parties and so long such agreement and consequently the consent awards are not set aside in an appropriate proceedings by a Court of law having jurisdiction in relation thereto, the same remained binding. It is further observed by the Hon'ble Supreme Court in the said decision that it is one thing to say that the agreements are void or voidable in terms of the provisions of the Contract Act having been obtained by fraud, collusion etc. or are against public policy but it is another thing to say that without questioning the validity thereof, the claimants could have maintained their petitions.
[9.0] In light of the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and the decisions of this Court referred to herein above, the facts of the case on hand are required to be considered and it is required to be considered whether in the facts and circumstances of the case, learned Reference Court is justified in holding issue No.[2A] in affirmative and in holding that the respective references under Section 18 of the Act were tenable and maintainable?
It is required to be noted that in the present case consent agreements were entered into between the acquiring body and the original land owners as far as back in the year 1989 and under the said agreements which were duly signed by the original land owners/claimants, amount of compensation came to be agreed. It has come on record that as such the market price / the amount of compensation at the relevant time was determined on the basis of recommendations by the High Level Committee and on the basis of Page 33 of 44 C/FA/231/2012 CAV JUDGMENT recommendations made by the committee consisting of and attended by Additional Collector, President of District Panchayat, Vadodara and various other officers of various institutions and Sarpanch of various villages as members and after making discussions with the owners of the lands. It is required to be noted that all the agreements and even the Form No.15 have been signed by the original land owners as far as back in the year 1989. That all the land owners were paid 80% to 90% amount by way of advance compensation considering the market price mentioned in the consent agreements in the year 198990 and the possession of the acquired lands in question was taken over by the acquiring body immediately in the year 198990 on payment of 80% to 90% of the amount of compensation. That there was a meeting of the High Level Committee in the year 198990 i.e. at the time of execution of the consent agreements and prior to payment of 80% to 90% of the amount of compensation and the said meeting was attended by Additional Collector, President of District Panchayat, Vadodara and various other officers of various institutions and Sarpanch of various villages as members and as such the same has been admitted by the original claimants in the crossexamination. Nothing is on record that at any point of time either when the possession of the acquired lands in question was taken over from the original land owners and/or even at the time of making the payment of 80% to 90% of the amount of compensation by way of advance compensation paid in the year 1989 90, any of the claimants raised any objection and/or they accepted the amount under protest. Thereafter, for the first time in the year 1995, the advocate sent a notice for making reference under Section 18 of the Act for redetermination of the amount of compensation. At this stage it is required to be noted that at the relevant time when the advocate sent the notice for making reference under Section 18 of the Act, in most of the cases even the notification under Section 4 of the Act were not Page 34 of 44 C/FA/231/2012 CAV JUDGMENT issued. Therefore, even the award/s were also not declared by the Special Land Acquisition Officer. That thereafter on the basis of the consent agreements which were executed and entered into in the year 198990 and considering the market price mentioned in the said agreements, Land Acquisition Officer has declared the award under Section 11(2) of the Act i.e. declared the consent awards. At this stage it is required to be noted and as stated herein above, the Special Land Acquisition Officer returned/filed the applications submitted by the claimants for making reference under Section 18 of the Act on the ground that the notice/application does not contain full particulars and despite the opportunities given no particulars were furnished. The aforesaid decision came to be challenged before the Division Bench of this Court by way of Special Civil Application No.4112/1998 and other allied Special Civil Applications. That the Division Bench by order dated 25.01.1999 disposed of the aforesaid petitions directing the Special Land Acquisition Officer to consider the application of the claimants for making reference under Section 18 of the Act in accordance with law. It is required to be noted that by order dated 25.01.1999, the Division Bench had not directed the Special Land Acquisition Officer to make reference under Section 18 of the Act. At the cost of repetition it is required to be noted that the Division Bench only directed the Special Land Acquisition Officer to reconsider the decision in accordance with law. It is also required to be noted at this stage that even at the time of hearing of the aforesaid petitions, it was pointed out that their applications are filed/rejected as the consent award has been declared under Section 11(2) of the Act. However, as on the aforesaid ground the applications were not filed and the applications were filed/rejected solely on the ground of nonfurnishing the full particulars, the Division Bench directed to reconsider the decision in accordance with law. Despite the above, while passing the order dated 07.07.2000, the Land Page 35 of 44 C/FA/231/2012 CAV JUDGMENT Acquisition Officer has treated the order passed by the Division Bench in aforesaid Special Civil Applications as a command and/or direction and made the reference to the District Court under Section 18 of the Act. On considering the order dated 07.07.2000 passed by the Land Acquisition Officer making reference under Section 18 of the Act, it appears that as such the Land Acquisition Officer has specifically observed that consent agreements were entered into and the consent award has been declared. However, despite the above, treating the order dated 25.01.1999 passed by the Division Bench of this Court as a command/direction, he has mechanically made the references under Section 18 of the Act. When the objection was raised before the learned Reference Court with respect to maintainability of references under Section 18 of the Act, as such the learned Reference Court has not considered at all the consent agreements entered into between the acquiring body and the original claimants, executed and entered into in the year 1989; the possession taken over by the acquiring body in the year 198990 after making the payment of 80% to 90% of the amount of compensation as advance compensation and accepting the same by the original claimants without protest. From the impugned judgment and awards passed by the learned Reference Court, it appears that the learned Reference Court has held the issue No.[2A] in affirmative and has held that the respective references under Section 18 of the Act were tenable/maintainable by observing that while passing the order dated 07.07.2000, the Special Land Acquisition Officer has set aside the consent awards. However, factually the same is incorrect. From the order dated 07.07.2000 passed by the Special Land Acquisition Officer making references under Section 18 of the Act, it cannot be said that by the said order making reference under Section 18 of the Act, the Special Land Acquisition Officer had set aside the consent awards declared under Section 11(2) of the Act. Even otherwise once the consent award under Section 11(2) of the Act is Page 36 of 44 C/FA/231/2012 CAV JUDGMENT declared by the Special Land Acquisition Officer, thereafter the Special Land Acquisition Officer on the application for making a reference under Section 18 of the Act has no jurisdiction and/or authority to set aside the consent awards declared under Section 11(2) of the Act. If such an order had been passed, the same would have been without any authority under the law. In any case in the present case while passing the order dated 07.07.2000, the Special Land Acquisition Officer has not set aside the consent awards under Section 11(2) of the Act as observed by the learned Reference Court. Under the circumstances, the impugned judgment and awards passed by the learned Reference Court and the finding recorded by the learned Reference Court that references under Section 18 of the Act are maintainable, is on a wrong and factually incorrect premise. Under the circumstances, learned Reference Court has materially erred in holding that the respective references under Section 18 of the Act as maintainable.
[9.1] As observed hereinabove and in the facts and circumstances of the present case, narrated herein above, more particularly when the consent agreements mentioning the agreed amount of compensation / market price signed by the respective original owners and the acquiring body were executed in the year 198990; the possession of the acquired lands were taken over by the acquiring body in the year 198990 on payment of 80% to 90% of the advance amount of compensation, the aforesaid amount of compensation came to be accepted by the original owners without protest and even they also handed over the possession of the acquired lands without protest and that thereafter at no point of time they raised any objection with respect to the inadequacy of the amount of compensation and/or even taking over the possession forcibly and/or obtaining the signatures on the blank forms as alleged now and that the objections came to be raised with respect to inadequacy of compensation Page 37 of 44 C/FA/231/2012 CAV JUDGMENT for the first time in the year 1995 and considering the law laid down by the Hon'ble Supreme Court as well as decisions of this Court discussed hereinabove, the learned Reference Court has materially erred in holding issue No.[2A] in affirmative and in holding that the references under Section 18 of the Act are maintainable under the law.
[9.2] Now, so far as the decision of the Gauhati High Court in the case of Winkle Star Kharumlong (Supra) and the decision of the Division Bench of this Court in the case of Heirs of Chhitabhai M. Patel (Supra) relied upon by the learned advocate appearing on behalf of the claimants would not be applicable to the facts of the case on hand and/or the same would not be of any assistance to the original claimants, more particularly in view of the aforesaid binding decisions of the Hon'ble Supreme Court referred to hereinabove. The decision of the Hon'ble Supreme Court in the case of Madishetti Bala Ramul (D) By LRs (Supra) also would not be of any assistance to the original claimants, in the facts and circumstances of the case. On the contrary the decisions of the Hon'ble Supreme Court relied upon by the learned advocates appearing on behalf of the acquiring body as well as the Special Land Acquisition Officer referred to herein above are directly on the point and would be applicable to the facts of the case on hand.
[9.3] It is also required to be noted at this stage that the Special Land Acquisition Officer has declared the consent awards under Section 11(2) of the Act awarding the compensation as per the market price mentioned in the consent agreement executed in the year 198990. It is required to be noted that as such the original claimants have not challenged the consent awards declared under Section 11(2) of the Act. Therefore, unless and until the consent awards declared under Section 11(2) of the Act are challenged and the same are set aside by a competent Court Page 38 of 44 C/FA/231/2012 CAV JUDGMENT against the consent award declared under Section 11(2) of the Act, the reference under Section 18 of the Act would not maintainable. As per the law laid down by the Hon'ble Supreme Court referred to hereinabove and even otherwise considering the provisions of the Act, references under Section 18 of the Act would be maintainable only against the award declared under Section 11(i) of the Act and not against the consent awards declared under Section 11(2) of the Act.
[9.4] Now, so far as the case on behalf of the original claimants that their signatures were obtained on the blank forms/papers and they were not made aware about the actual amount of compensation / market price at the relevant time and/or that they were given promises that they will be paid the actual amount of compensation are all afterthoughts and it appears that only after their advocate issued the notice and/or made the application in the year 1995, As observed hereinabove, right from 198990 till 1995, no such representation and/or objections have been raised by the original claimants. As observed hereinabove as such the respective original claimants/owners were paid 80% to 90% of the amount of compensation by way of advance compensation in the year 198990 and they accepted the same without protest and even on payment of 80% to 90% of the advance compensation even the possession of the acquired lands were taken over by consent in the year 198990 without raising any objection. Under the circumstances, all the aforesaid objections raised now are all afterthoughts and to get out of the provisions of the law and only with a view to see that their references under Section 18 of the Act are held maintainable. As observed hereinabove, the original claimant who has been examined has specifically admitted that there were meetings in the year 198990 by the Committee and they also remained present. It appears that only thereafter and on the basis of the recommendations and the decision Page 39 of 44 C/FA/231/2012 CAV JUDGMENT taken in the meeting consisting of Additional Collector, President of District Panchayat, Vadodara and various other officers of various institutions and Sarpanch of various villages as members, agreed market price was determined and the amount of compensation was agreed to be paid. At no point of time thereafter till 1995, any of the claimants raised any objection. Considering the aforesaid facts and circumstances when thereafter the Special Land Acquisition Officer declared award under Section 11(2) of the Act, the learned Reference Court has materially erred in holding that the references under Section 18 of the Act are maintainable.
[9.4] In view of the aforesaid facts and circumstances and the discussions, it is to be held that the Reference Court has materially erred in answering issue No.[2A] in affirmative and in holding that the respective references under Section 18 of the Act are maintainable. Therefore, it is held that the respective reference applications under Section 18 of the Act at the instance of the original claimants were not tenable and/or maintainable under the law and therefore, the learned Reference Court has materially erred in entertaining the said reference applications.
[10.0] In view of the aforesaid finding that the respective references under Section 18 of the Act were not maintainable under the law, as such thereafter another issue with respect to the redetermination of the amount of compensation is as such not required to be considered as the respective references are held to be not maintainable. There is no question of further deciding the issue with respect to the redetermination of the amount of compensation. However, as the learned Reference Court has decided the same and the learned advocate appearing on behalf of respective parties have made the submissions on Page 40 of 44 C/FA/231/2012 CAV JUDGMENT that and even the original claimants have also preferred cross objections, this Court is considering the aforesaid issue also.
[10.1] At the outset it is required to be noted that the Special Land Acquisition Officer while declaring the consent awards under Section 11(2) of the Act has determined the market price of the acquired lands as per the consent agreements executed in the year 198990 ranging between Rs.2.96 per sq. meter to Rs.3.75 per sq. meter, the particulars of which are mentioned hereinabove. That by impugned judgment and awards the learned Reference Court has redetermined the amount of compensation and has awarded the compensation considering additional market price / additional compensation at Rs.21.48 per sq. meter. It is required to be noted that in the present case as such the possession of the acquired lands were taken over in the year 198990 on payment of 80% to 90% advance compensation and by consent. From the impugned judgment and awards it appears that while awarding the additional compensation at the rate of Rs.21.48 per sq. meter, the learned Reference Court has heavily relied upon the previous judgment and award by the learned Reference Court in LAR No.33/1989 at Exh.49 with respect to the lands acquired of village Kundi for which notification under Section 4 of the Act was published in the year 1984, by which the learned Reference Court determined / awarded the additional compensation at the rate of Rs.9.72 per sq. meter. Considering the differential span of approximately 7 years between the notification under Section 4 of the lands acquired of village Kundi (Exh.49) and in the present case i.e. 30.03.1997, giving 10% price rise per annum which comes to Rs.16.52 per sq. meter [i.e. Rs.9.72 + Rs.6.50] and thereafter giving further rise of 30% on the amount of compensation awarded i.e. Rs.16.52 on the ground that the lands in question are acquired for the purpose of construction of residential premises, the learned Reference Page 41 of 44 C/FA/231/2012 CAV JUDGMENT Court has determined the additional compensation at the rate of Rs.21.48 per sq. meter however it is required to be noted that Exh.49 is not the entire / full judgment and award declared by the learned Reference Court passed in LAR No.33/1989. It is only a bill of cost / decree. As such the learned Reference Court has mentioned 09.12.1996 as date of section 4 notification in the case of lands acquired of village Kundi however it appears that there is a mistake and it should be 31.05.1984 [the date which can be ascertained/gathered from the Bill of Cost/Decree/Award passed in LAR No.33/1989 (Exh.49)]. In the present case section 4 notification has been issued in the year 1997. However as stated hereinabove, the possession of the acquired lands was taken over in the year 198990 on payment of 80% to 90% of the advance compensation as per the consent agreements. Under the circumstances, it is not appreciable how the learned Reference Court has considered the differential span of approximately 7 years and granted price rise of 10% per annum. Under the circumstances, as such the learned Reference Court has materially erred in granting the price rise at 10% per annum for 7 years and on wrong premise/facts. It also appears that the learned Reference Court has materially erred in granting 30% rise on the amount of compensation awarded i.e. Rs.16.52/ on the ground that the acquired lands are acquired for the purpose of construction of residential premises. However the learned Reference Court has not properly appreciated the fact that as such the acquired lands were acquired for the purpose of construction and rehabilitation and development of oustees under the Narmada Canal Project. Under the circumstances, learned Reference Court is not justified in granting 30% price rise on the amount of compensation awarded i.e. Rs.16.52/. Under the circumstances, impugned judgment and awards passed by the learned Reference Court awarding additional compensation at the rate of Rs.21.48 per sq. meter for the acquired lands of which the possession Page 42 of 44 C/FA/231/2012 CAV JUDGMENT was taken over in the year 198990 cannot be sustained.
[10.2] Even the learned Reference Court has materially erred in awarding additional compensation under Section 23(1A) of the Act at 12% per annum on the market value from the date of section 4 notification till the date of award of the Land Acquisition Officer or from the date of taking over the possession of the land whichever is earlier i.e. in the present case from 198990. The learned Reference Court has also materially erred in granting 30% solatium under Section 23(2) of the Act on market value of the acquired lands with interest at the rate of 9% per annum from the date of taking over the possession [in the present case 198990] till one year and thereafter at the rate of Rs.15 per annum till its realization under Section 28 of the Act and on aggregating the amount of compensation including solatium. It is required to be noted that as such the respective claimants were already paid 80% to 90% of the advance compensation as per the consent agreements executed, in the year 198990 and the notification under Section 4 came to be published in the year 199697. As held by the Hon'ble Supreme Court in the case of Ishwarlal Premchand Shah (Supra), when the consent awards have been declared under Section 11(2) of the Act, there is no question of granting any further amount of solatium, additional amount of compensation etc. Under the circumstances, the impugned judgment and awards granting the aforesaid benefits also cannot be sustained and the same deserves to be quashed and set aside.
[11.0] In view of the above and for the reasons stated above, all these First Appeal Nos.231/2012 to 236/2012 and First Appeal No.238/2012 to 241/2012 and FA. Nos. 2154 of 2010 to 2163 of 2010 preferred by the acquiring body as well as State of Gujarat and Special Page 43 of 44 C/FA/231/2012 CAV JUDGMENT Land Acquisition Officer are hereby Allowed. Impugned judgment and awards dated 11.12.2009 passed by the learned 11th Additional Senior Civil Judge, Vadodara are hereby quashed and set aside and it is held that the respective land references at the instance of the claimants under Section 18 of the Act were / are not maintainable. Impugned judgment and awards passed by the learned Reference Court even on merits and even with respect to the amount of compensation determined are quashed and set aside. Consequently, the cross objections preferred by the original claimants deserve to be dismissed and are, accordingly, dismissed. No costs.
(M.R. SHAH, J.) (R.P. DHOLARIA, J.) FURTHER ORDER At this stage, Shri Ashish Shah, learned advocate for the claimants has requested to stay the present judgment and order for some time. However, in the facts and circumstances and the findings recorded herein above, prayer is rejected.
sd/ (M.R. SHAH, J.) sd/ (R.P. DHOLARIA, J.) Ajay Page 44 of 44