Gujarat High Court
Raval Maneklal Motiram vs State Of Gujarat on 1 September, 1990
Equivalent citations: AIR1991GUJ137, (1991)1GLR212, AIR 1991 GUJARAT 137
JUDGMENT B.S. Kapadia, J.
1. The first appeal No. 1319 of 1978 was filed by the original claimant while first appeal No. 71 of 1979 was filed by the State Government. Both these appeals arise from the award given by the learned District Judge, Sabarkantha, D/ - 3 17-78 in Land Acquisition Case No. 1/ 75. The said Land Acquisition Case had arisen on account of the reference made under S. 18 of the Land Acquisition Act (herein after referred to as the L.A. Act).
2. Being aggrieved by the aforesaid award of Rs. 19,056/- together with interest at the rate of 4V2 per cent from 3 1 st August 1974 till payment or till the deposit of the said amount in the Court with proportionate costs, both the aforesaid parties have filed the appeals stated above. The claimants wants more compensation; while according to the Government the learned District Judge has wrongly increased the compensation.
3. The lands are acquired for the Sabarmati Reservoir Project-Dharoi known as Dharoi Project. The lands acquired are of village Dhebdi under Khedbrama Taluka of Sabarkantha District bearing survey No. 16 admeasuring 19 Acres 20 Gunthas (7 Hector 89 acre and 14 sq. metre). The notification under S. 4 of the L.A. Act was published on 8-9-71. The notification under S. 6 of the said Act was published on 27-4-72.
4. The Land Acquisition Officer passed the award on 28-6-74 and in pursuance of the said award, the possession was taken in August, 1974. By the said award, the total compensation of Rs. 61,107.83 p. was given to the claimant which also includes an amount of Rs. 3,760/ - as additional compensation for machine room and pipe line which are situated in the acquired land. In reference against the said award, the claimant has prayed for an additional compensation of Rs. 1,12,320/-. It is also in undisputed fact that the land of the appellant in first appeal No. 1319 / 78 which is acquired, is new tenure land and as it was new tenure land, 2/ 3rd of the compensation would be paid to the claimant.
5. Before the learned District Judge, reliance was placed on the sale instances at Exhs. 25, 33, 38 and 34 on behalf of the claimant; while on behalf of the State Government reliance was placed on the Government notification dt. 27-3-74 which is at Exh. 3 on record. As per the said notification, the price for the irrigated land for the villages under Group A is Rs. 4,300/- and the same for the land of the said group of villages for the non-irrigated land is Rs. 3,300/-. So far as lands of villages under Group B is concerned, the price agreed is Rs. 3,330/- for the irrigated one while Rs. 2,300/- for the non-irrigated land. The land acquired was treated as the land of Group B and part of the area of the land was treated as irrigated, while the other part of the land was treated by the Collector as non-irrigated land. It was argued before the learned District Judge that the Land Acquisition Officer has blindly accepted the said notification and acted upon it.
6. It is submitted by Shri Tripathi, learned Assistant Government Pleader that the market value has been wrongly increased by the learned District Judge and the Land Acquisition Officer has rightly considered part of the land of villages of Group B as non-irrigated and part as irrigated and he has also submitted that looking to the proximity, part of the land be treated as non-irrigated land.
7. As against this, learned advocate Mr. Shelat for the claimant has submitted that the entire lands should be treated as irrigated as it has the facility of irrigation through the well and therefore, there is no question of treating part of the land as irrigated land and part as non-irrigated land.
8. Mr. Shelat has further submitted that the learned District Judge has not properly appreciated the sale instances and has therefore, erred in determining the correct market rate. The learned District Judge has also committed the same error by following the same notification which is not applicable to the facts of the present case; inasmuch as the said notification was in respect of the land for which the claimants agreed to sell and land under the said agreement to sell. But the present claimant was never a party to the said agreement and, therefore, such an agreement cannot be acted upon. He further stated that the learned District Judge has erred in ignoring the sale instances merely on the ground that they are of smaller value and they are immediately after the publication of the notification under S. 4 of the L.A. Act and even earlier sale instance of 1966 has also not been properly considered. He further submitted that looking to the facts and circumstances of the case and also the sale instances, the market value at the rate of Rs. 7000 per acre should be fixed.
9. Now we would consider about the common factors with regard to part of the irrigated land and part of the non-irrigated land. It may be mentioned that 5 Acres 5 Are and 86 sq. mtrs. of the land was treated by the Special Land Acquisition Officer as irrigated land and rest of the area of 2 Acres 83 Are and 28 sq. mtrs. of land to be non-irrigated land. It may further be mentioned that in exh. 24, which is the true copy of the Record of Rights in respect of the acquired land, in the last column under the heading 'REMARKS' a kutcha well is shown in the year 1966-67. Subsequently, it appears that a new well was constructed in the year 1967-68, which was shown to be a pucca well. Thus, the same remarks continued for the following years 1969-70, 1970-71 and 1971-72. It is, therefore, clear that there was facility of well to irrigate the land and in the year 1971 when -the notification u/ S. 4 of the L.A. Act was issued, there was already a pucca well and the land had the facility of irrigation. There was also an engine on the well, which is reflected in the Record of Rights in the year 1972. This would show that water was supplied to the whole of the land from the well. It is also pertinent to note that the Special Land Acquisition Officer has also awarded an amount of Rs. 3,760/- for the machine room and pipe line, which indicates that from the said well, water was supplied to the entire land. Under the circumstances, it is clear that the approach of the Special Land Acquisition Officer in treating part of the land as irrigated one and part as non irrigated one was erroneous and the learned District Judge has rightly considered that the whole of the land under acquisition had got full facility of irrigation and, therefore, the land must be classified as irrigated land. In view of the above evidence on record, we do not agree with the contention that part of the land should be treated as non irrigated land.
10. The learned District Judge while considering as to whether the notification at exh. 3 should be applied here in the present case or not has observed that the Special Land Acquisition Officer has completely accepted the said Resolution and has acted upon the same, In fact, present claimant was not a party to any such agreement though certain other villagers from village Dhebdi were parties to that agreement. The learned District Judge has rightly observed that merely because certain people were party to that agreement it cannot be said that said agreement is binding on the present claimant who is not a party to the said agreement and, therefore, the price agreed in the said agreement cannot be said to be binding on the present claimant.
11. In that view of the matter, itwould be necessary to see as to what is the correct market price of the land under acquisition at the time when the notification u/ S. 4 of the L.A. Act was issued.
11A. Before we deal with the sale instances relied upon by the claimant, it would be necessary to observe that though the aforesaid observations are made by the learned District Judge, he committed an error in relying upon Exhibit 3 which was in respect of agreed rate. It may be mentioned that the learned District Judge has also treated the land under acquisition of village Dhebdi of Group-B though there is clear evidence on behalf of the claimant to the effect that the land of village Champalpur is not better than the land of village Dhebdi. Champalpur is in Group-A while Dhebdi is in Group-B. Mr. Tripathi, learned Assistant Government Pleader tried to support this finding with regard to Group-B for village Dhebdi on the ground that it is not situated on the highway and there is no railway facilities and it is situated at a distance of 15 kms. from highway. However, once when such groupings are made, it is with regard to the fertility of the land and there is no evidence on record to show that the fertility of the land under acquisition was in any way inferior to that of other villages in Group-A though some of the villages of Khedbrahma Taluka are in GroupA and Dhebdi is a village where the land under acquisition is situated is also in the same taluka. There is no evidence coming forth as to the basis on which the groupings are made and the Special Land Acquisition Officer has also not thrown any light while leading evidence on this point. In that view of the matter, such groupings cannot be accepted and on the basis of such groupings, the market value cannot be fixed. When the groupings are discarded, then the price of the land would be Rs. 4,300 / - per acre. However, the learned District Judge without giving any reasons for not accepting the same, simply on ipse dixit fixed the compensation of Rs. 4,000 / - per acre in respect of the land of the claimant which has been acquired. In our view, the learned District Judge has committed an error in accepting the said notification and also groupings of the land and consequently in fixing the market value thereof.
12. In that view of the matter, now it would be necessary to consider the sale instances. The first sale instance is at Exh. 38. It is In respect of the sale of land of village Marwada under Idar Taluka of Sabarkantha District in respect of the land bearing survey No. 359 admeasuring I acre 8 gunthas. The transaction is dated 13-12-71 and it is sold at Rs. 10,301/- by one Madhavlal Surajram to Shivabhal Dhulabhal. Said price also includes the price of I/ 4th share in the well situated in another land bearing survey No. 361. It is clear from the sale deed that price thereof was fixed by agreement to sell dt. 25-11-68. It is so mentioned in the sale deed also. However, the learned District Judge has rejected the same on the ground that there is no evidence to prove the same. It is important to note that villages Marwada, Kuvavad and Delvada which are at a distance of 2 miles away from the village Dhebdi. When that is so, they are .quite nearer to village Dhebdi. The learned District Judge, however, rejected the same on the ground that there is no evidence on the point of agreement to sell and on payment of earnest money. It is true that the said instance of sale is of 13-12-7 1, while the notification is issued on 8-9-71 i.e. it is after the issuance of notificatioa u/ S. 4 of the L.A. Act. Further the land under acquisition is 19 acres and 20 gunthas while the land under the present agreement to sell Exh. 38 is I acre 8 gunthas. It also includes the I/ 4th share in the price of the well situated in another land and, there.fore, said sale instunce would not clearly reflect the market price of the land and, therefore, it is not of much use.
13. The second sale instance Exhibit 34 is in respect of sale of land of the same Marwada village of Idar Taluka. The area of the land was 36 gunthas; the sale deed was registered on 27-12-71 and the amount of the price of the land was Rs. 9652/ -. In view of the aforesaid reasons, said sale instance is also not of much use for the purpose of arriving at the correct market rate.
14. The third sale instance Exhibit 25 is in respect of the sale deed of the land of village Champalpur under Khedbrahma Taluka in which the present land is situated. It was the land of survey No. 516 admeasuring 3 Acre and 9 gunthas. The sale was effected on 1-2-66 and the amount of the price of the land was Rs. 19,315 and this village is situated at a distance of 2 miles away from village Dhebdi where the land under acquisition is situated and, therefore, the market value comes to Rs. 6,000/- per acre.
15. The fourth sale instance Exh. 32 is in respect of land of village Kuvavad of Idar Taluka. The transaction took place on 7-9-71 for an amount of Rs. 7500/-. The distance stated by the claimant in his deposition is of 2 miles away from village Dhebdi. The publication of the notification under S. 4 of the L.A. Act is of 8-9-7 1; while the sale instance is of one day prior thereto.
16. The fifth sale instance Exh. 36 is in respect of the land of village Delvada under Khedbrahma Taluka. The sale deed Is dated 6-9-71. The area of the land was 2 acres 37 gunthas and the price was Rs. 19,400/-. So the average rate would come to Rs. 7,000/ -per acre.
17. Now, the aforesaid sale instances clearly provide guidelines for the purpose of determining the real market value of the land under acquisition. It may be that looking to the small area of the land and also the transaction nearer to the date of publication of the notification, some reduction will be necessary. But so far as the land of village Champalpur is concerned, no exception can be made. The learned District Judge has also considered the same. But at the time of fixing the market value the learned District Judge has totally ignored all the findings of the sale instances and went on relying upon the notification at Exh. 3 dt. 27-3-74. There is no reason why the sale instances cannot be relied upon. The sale instance at Exh. 25 is of the year 1966 and there is no contrary deposition or evidence on record to show that the land of village Dhebdi is in any way inferior to the lands of villages Champalpur, Delvada, Kuvavad and Marwada. On the contrary, as stated earlier, the claimant has denied in his cross-examination that the land of village Champalpur is better than the land of his village Dhebdi. Taking into consideration of all the relevant aspects viz. fertility of the land, smallness or the area, and nearness of the transaction to the publication of notification under S. 4 of the L.A. Act, we are of the view that Rs. 6,000/- per acre can be fixed as the correct market value of the land under acquisition in view of the aforesaid sale instance. We may also point out that the learned District Judge has stated that the people of village Dhebdi and other villages knew well before a period of 2-3 years of the publication of the notification u/ S. 4 of the L: A. Act that their lands were to be acquired in the near future. In fact, we are not pointed out any such evidence. In the absence of that evidence, it would be an error to discard the aforesaid sale instance, when it is near to the date of publication of notification u/ S. 4 of L.A. Act either immediately before the date of publication or immediately thereafter. In this view of the matter, some reduction can be made and taking all the aforesaid circumstances, we have determined the market value of the land under acquisition would be Rs. 6,000/- per acre, When that is so, the claimant would be entitled to Rs. 2000/ - more per acre than the amount awarded by the District Court in the Land Reference matters when that is so and the land acquired is 19A 20 Gs. the claimant would be entitled to Rs. 39,000/- as the additional compensation for the difference in money value of the land. To that amount Rs. 5,850/- will be added as the amount of solatium at the rate of 15%. That solatium is calculated at the rate of 15% on the award made by the Court before 1982 and as per the decision of the Supreme Court reported in AIR 1989 SC 1933, the solatium at the rate of 15% would be admissible to them. The aggregate total comes to Rupees 44,850/-.
18. Undisputably the land under acquisition is land of new tenure and, therefore, the Spl. Land Acquisition Officer as well as the learned Judge has deducted 1/3rd of the amount and here also 1/3rd of the amount will be deducted as the claimant would be entitled to 2/ 3rd thereof. Hence, 2/ 3rd of the amount of Rs. 44,850/- will come to R s. 29,900 / -.
19. Now there is much debate on the point of interest. If one reads the provisions of S. 28 of the L.A. Act on the point of interest, prima facie, one would be inclined to hold that the claimants would be entitled to get 9 per cent interest per annum from the date on which the possession is taken to the date of payment of such excess into the Court. On first reading of the proviso to the said section also it appears that if such excess amount or part thereof is paid into court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per cent per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into court before the date of such expiry. However, Mr. Tripathi submits that this provision would not be applicable to the facts of the present case inasmuch as the court had already passed awarded u/ S. 18 of the Land Acquisition Act in the year 1978 i.e. much prior to the, introduction of the Bill for amending Act 68 of 1984. When Collector and the court have passed the award much prior to the date of introduction of the Bill of the aforesaid Act i.e. before 1982, in view of the provisions of S. 30 and particularly sub-section (2) thereof, the claimants would not be entitled to get benefits of enhanced rate of interest.
20. It is clear from the reading of the said Amending Act that amendment is made in S. 28 by S. 18 of the Amending Act and normally any such amendment in the Act except to the procedural law is made, it is prospective in operation. However, the legislature intended to give limited retrospective operation to the said Act and, therefore, transitional provisions have been incorporated in S. 30 and particularly sub-section (2) thereof, it is clear that the provisions of the said Act 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. Now here, in the present case, undoubtedly the award is also made by the Court much prior to the aforesaid date i.e. 30-4-1982, the date on which the Bill of Amendment of 68 of 1984 was introduced.
21. When that is so, amended provision of enhanced interest would not be applicable. However, Mr. Shelat, learned advocate for the claimants has submitted that the said provision also apply to any order passed by the High Court or Supreme Court in appeal and, therefore, benefit of amended S. 28 should be made available to the claimants. On closely perusing the language of S. 28 of the Act, in the light of the transitional provisions, it is clear that the order of the High Court or Supreme Court in appeal is confined to the appeal against any such award. The words "any such award" has been interpreted by the Supreme Court in the case of Union of India v. Raghubir Singh (dead) by LRs. etc. reported in AIR 1989 SC 1933. In para 31 of the said judgment, Supreme Court observed as under:
" ...... There can be no doubt that the benefit of the enhanced solatium is intended by S. 30(2) in respect of an award made by the Collector between 30 April 1982 and 24 September 1984. Likewise, the benefit of the enhanced solatiurn is extended by S. 30(2) to the case of an award made by the Court between 30 April 1982 and 24 September 1984, even though it be upon reference from an award made before 30 April, 1982.
Thereafter, the Supreme Court has further observed in para 32 as under:
" ....... The words "any such award" are intended to have deeper significance, and in the context in which those words appear in S. 30(2), it is clear that they are intended to refer to awards made by the Collector or Court between 30 April 1982 and Sept 1984. In other words, S. 30(2) of the amendment Act extends the benefits of the enhanced solatiurn to cases where the award by the Collector or by the Court is made between 30 April 1982 and 24 Sept. 1983 or to appeal against such awards decided by the High Court and the Supreme Court whether the decisions of the High Court or the Supreme Court are rendered before September 1984 or after that date. All that is material is that the award by the Collector or by the Court should have been made between 30 April, 1982 and 24 September 1984."
With these observations, Supreme Court further held as under:
"Due significance must be attached to that word, and to our mind, it mb1 ust necessarily intend that the appeal to the High Court or the Supreme Court in which the benefit of the enhanced solatium is to be given, must be confined to an appeal against an award of the Collector or the court rendered between 30 April 1982 and 24 Sept. 1984."
When that is so, in the present case when the Court while deciding reference u / S. 18 of the L.A. Act has passed the award in 1978, it is much prior to 30 April 1982 and, therefore, benefit of the amendment in S. 28 on the point of interest would not be available to the claimants.
22. However, Mr. Shelat has relied on the two later decisions of the Supreme Court. One is in the case of Union of India v. Filip Tiaquo De qama reported in AIR 1990 SC 981. In the said case, the Collector has declared award on 5-3-69 and Reference Court u/ S. 18 of L.A. Act had passed award in reference on 28-5-1986. When that is so, sub-see. (2) of S. 30 of the Amendment Act would clearly attract the operation of the amended provisions. Further, it may be mentioned that there is no discussion on this point particularly because there was no grievance made in the appeal as to second of the reliefs granted to the claimants and second relief was for interest at the rate of 9% for the first year from the date of taking possession and 15% for the subsequent years. When no such point is decided, it cannot be said to be ratio nor the observations made by the Supreme Court. In fact, Supreme Court was not called upon even to decide that point or there was no occasion for the Supreme Court even to make any casual observations, particularly when there was no grievance with regard to the payment of interest as per amended S. 28 of the L.A. Act. In that view of the matter, said judgment would not be useful to the claimants in the present case.
23. The second judgment that was cited by Mr. Shelat was in the case of Hoshiarpur Improvement Trust v. The President, Land Acquisition Tribunal reported in (1990) 2 JT (SC) 567. Looking to the facts of the said case, it is clear that in the said case also, the award was given by the Land Acqu. Officer on 6-1-1979 while on reference, award was made by the President Land Acqu. Tribunal, Hoshiarpur on 28-3-1983. Similarly in other matter also, Land Acqu. Officer, has passed award on 30-4-1982 and the Land Reference was decided on 29-8-1985 while in the third matter, same is the date as that of the second matter. In that view of the matter, it was clearly within the date which would attract the application of S. 30(2) of the Amended Act of 68 of 1984. It may be mentioned that in para II of the said judgment, it is clearly mentioned that so far as the award of interest at the rate of 9% for the first year from the date of taking possession and 15% for the subsequent years is concerned, the claimants have been rightly entitled to the same under S. 28 as stood amended by the Amending Act. In above view of the matter, it is clear that the said judgment also stands on special facts which are different from the facts of the present case and, therefore, the judgment also would not be useful to the claimants.
24. Ultimately, we hold that the claimants-appellants in Appeal No. 1319/ 78 would be entitled to the additional compensation of Rs. 29,900/- with interest at the rate of 4V2 from the date of the award by the Collector till the payment and proportionate costs.
25. In view of what is stated hereinabove, the appeal filed by the State being Appeal No. 71/79 is hereby dismissed.
26. Order accordingly.