Gujarat High Court
Heirs Of Gokalbhai Bhanjibhai vs Deputy Collector on 14 October, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/12809/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12809 of 2015
With
SPECIAL CIVIL APPLICATION NO. 12810 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 12819 of 2015
With
SPECIAL CIVIL APPLICATION NO. 12823 of 2015
With
SPECIAL CIVIL APPLICATION NO. 12825 of 2015
With
SPECIAL CIVIL APPLICATION NO. 12826 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HEIRS OF GOKALBHAI BHANJIBHAI....Petitioner(s)
Versus
DEPUTY COLLECTOR....Respondent(s)
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Appearance:
MR GM AMIN, ADVOCATE for the Petitioner(s) No. 1 - 1.4
MR. RONAK RAVAL in SCA No. 12809 of 2015, SCA No. 12810 to 12819 of
2015, SCA No. 12823 of 2015 and SCA No. 12825 of 2015 AND MR. NIRAJ
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C/SCA/12809/2015 JUDGMENT
ASHAR in SCA No. 12826 of 2015 AGPs for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 14/10/2015
ORAL JUDGMENT
1. This group of the petitions is taken up for final hearing and disposal with the consent of the learned advocates appearing for the parties.
2. Hence, RULE. Learned AGP Mr. Ronak Raval and learned AGP Mr. Niraj Ashar waives service of rule for respondent in these petitions.
3. In first petition, challenge made is to the order dated 11.02.2015 passed by the learned 4th Additional Senior Civil Judge, Jamnagar rejecting the application preferred by the petitioner under Order 6 Rule 17 of the Civil Procedure Code, 1908 ("the Code") seeking amendment to claim higher rate of compensation in his reference made under Section 18 of the Land Acquisition Act, 1894 ("the Old Act"). Similarly, in rest of the matters, challenge made is to the common order dated 27.02.2015 passed by the learned 4th Additional Senior Civil Judge, Jamnagar rejecting applications preferred in different references made under Section 18 of the Old Act seeking amendment to claim higher rate of compensation.
4. Since the issue involved in all the petitions Page 2 of 13 HC-NIC Page 2 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT is common, the petitions are heard and decided by the present common judgment.
5. It appears that in pending references of the year 1992, the petitioners preferred applications in the month of March, 2014 seeking amendment to claim the higher rate of compensation. However, such applications were rejected by the Reference Court on the ground that the petitioners have not provided any reasons for the correction sought for and that since the trial of the reference has begun, the applications made by the petitioners are not maintainable.
6. Learned advocate Mr. GM Amin for the petitioners submitted that the law provides for just and adequate compensation for the lands acquired, and there is no prohibition in asking for higher rate of compensation at any stage of the reference. Mr. Amin submitted that even at the appellate stage, the amendment to claim higher rate of compensation is permissible and therefore there is no good reason to refuse amendment to claim the higher rate of compensation even if the trial has begun.
7. Learned AGPs Mr. Ronak Raval and Mr. Niraj Ashar, on the other hand, submitted that the references are very old and in such references, Page 3 of 13 HC-NIC Page 3 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT at a very belated stage, the petitioners preferred applications seeking amendment to claim higher rate of compensation and the Reference Court since found that the trial has begun and since there are no reasons provided for amendment in the references, the impugned orders are made by the Reference Court.
8. Having heard learned advocates for the parties, it appears that though the petitioners sought for amendment in the rate of compensation at belated stage, however, when the compensation is to be determined based on the available evidence, no prejudice would be caused to the respondent in permitting the petitioners to make amendment in the rate of compensation. Therefore, simply, because the trial has begun is no ground to refuse the amendment sought for by the petitioners. It is required to note that the amendment prayed for by the petitioners under Order 6 Rule 17 of the Code is not as regards any other particulars concerning measurement etc. of the land acquired but it is only to ask for higher rate of the compensation. In such view of the matter, no special reasons were required to be assigned by the petitioners to seek amendment to claim higher rate of compensation.
9. In the case of Ambya Kalya Mhatre (Dead) Through Lrs. and Others Versus State of Maharashtra reported in (2011) 9 SCC 325, Hon'ble Page 4 of 13 HC-NIC Page 4 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT Supreme Court has held and observed in paragraph Nos. 16 to 29, 32 and 33 as under:-
"16. An analysis of section 18 of the Act would show that any person interested who does not accept the award can, by written application to the Land Acquisition Collector, require the matter to be referred for determination of the court in regard to any one of the following matters :
(a) Objection to the measurement of the land;
(b) Objection to the amount of compensation;
(c) Objection as to the persons to whom the compensation is payable; or
(d) Objection to the apportionment of the compensation among the persons interested.
17. The Land Acquisition Collector is not a court. When he determines the compensation, he does not adjudicate, but merely makes an offer for the acquired land, on behalf of the Government. If the landowner considers the amount offered by the Land Acquisition Collector to be inadequate and makes a request within the prescribed period, for reference to the civil court under section 18 of the Act, the Land Acquisition Collector is bound to refer the matter to the Civil Court for determination of the compensation. He has no choice of refusing to make a reference, when the request is in time. Neither the act of making an award offering compensation nor the act of referring the matter to a civil court for determination of compensation at the request of the land owner are judicial functions, but are administrative functions.
18. The legal position of an award by the Land Acquisition Officer vis-?is the proceedings in a reference to the civil court under section 18 of the Act is explained thus by this Court in Chimanlal Hargovinddas v. Special Land Acquisition Officer.
"4. The following factors must be etched on the mental screen :
(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the court cannot take into account the Page 5 of 13 HC-NIC Page 5 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the court.
(2) So also the award of the Land Acquisition Officer is not to be treated as a judgment of the trial court open or exposed to challenge before the court hearing the reference. It is merely an offer made by the Land Acquisition Officer and the material utilized by him for making his valuation cannot be utilized by the court unless produced and proved before it. It is not the function of the court to sit in appeal against the award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate court.
(3) The court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it."
19. Sub-section (3) of section 18 of the Act (added in Maharashtra) providing that the Land Acquisition Collector shall be deemed to be a court subordinate to the High Court, is therefore, only for the limited purpose of enabling a revision under section 115 of the Code to be filed against the order of the Collector under section 18 of the Act, and not for any other purpose.
20. The assumption made by the High Court that when a reference is sought objecting to the amount of compensation, the claim for increase will have to be frozen with reference to the amount claimed in the application under section 18 of the Act and, therefore, the quantum of the claim cannot subsequently be revised or increased is misconceived. Similarly, the assumption that if the claim for increase in an application for reference (relating to an acquisition involving a property consisting of land, building and trees), was only in regard to the compensation for the land, the land owner cannot thereafter make a grievance seeking increase in regard to the building or trees in the pleadings before the Reference Court and that in such a case, the Reference Court gets the jurisdiction to determine only the market value in regard to the Page 6 of 13 HC-NIC Page 6 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT land and not in regard to the building and trees, is also not correct.
21. Section 18 does not require a landowner objecting to the amount of compensation, to make a claim for any specific amount as compensation, nor does it require him to state whether the increase in compensation is sought only in regard to the land, or land and building, or land, building and trees. A landowner can seek reference to civil court, with reference to any one or more of the four types of objections permissible under section 18 of the Act, with reference to the award. His objection can either be in regard to the measurement of the acquired land or in regard to the compensation offered by the Collector or in regard to persons to whom it is shown as payable or the apportionment of compensation among several claimants. Once the landowner states that he has objection to the amount of compensation, and seeks reference to the civil court, the entire issue of compensation is open before the Reference Court. Once the claimant satisfies the Reference Court that the compensation awarded by the Land Acquisition Officer is inadequate, the Reference Court proceeds to determine the compensation, with reference to the principles in section 23 of the Act.
22. As the Act does not require the person aggrieved/landowner to specify the amount of compensation sought, when objecting to the amount of compensation and seeking a reference, mentioning of the amount of compensation sought is optional. As there is no obligation to specify the amount in the application for reference, it can be specified in the claim statement filed before the Reference Court. The period of limitation in section 18 of the Act has nothing to do with specifying the amount of compensation claimed. It therefore follows that if the reference is in regard to objection to the amount of compensation, the Reference Court can permit any application for amendment of the claim relating to compensation.
23. The High Court has lost sight of the scheme of the Act. When a land is acquired, the Land Acquisition Officer makes an offer on behalf of the State Government, in regard to the Page 7 of 13 HC-NIC Page 7 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT compensation. The offer made by the Land Acquisition Officer is not an adjudication of the market value or the compensation payable to the landowner. When such offer is made, the landowner has the choice of either accepting the compensation in full and final satisfaction or to seek a reference to the civil court for determination of the amount of compensation. Where the landowner does not seek a reference within the time specified in section 18 of the Act, he is deemed to have accepted the award and the award of the Land Acquisition Officer attains finality under section 12 of the Act.
24. Section 18 of the Act enables the land owner or person interested to make a written application to the Collector requiring his objection to the award, to be referred for determination by the court. In the application, he has to state whether his objection is in regard to measurement, quantum of compensation, persons entitled to compensation, or apportionment. He is also required to state the grounds on which the objection to the award, is taken. But the section does not require the landowner while seeking a reference, to specify the quantum of compensation demanded by him. Section 18 merely requires a landowner who has an objection to the amount of compensation awarded by the Land Acquisition Officer to require the matter to be referred to Reference Cccourt for determination of compensation by specifying the grounds of objections to the award.
25. Section 19 of the Act provides that on receipt of the application seeking reference made in accordance with section 18 of the Act, the Collector is required to make the reference by forwarding the application for reference (or a copy thereof) with his statement setting out the grounds on which the amount of compensation was determined by him. Section 19 is extracted below :
"19.Collector's statement to the Court.- (1) In making the reference, the Collector shall state, for the information of the Court, in writing under his hand,-
(a) the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon;
(b) the names of the persons whom he has reason Page 8 of 13 HC-NIC Page 8 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT to think interested in such land;
(c) the amount awarded for damages and paid or tendered under sections 5 and 17, or either of them, and the amount of compensation awarded under section 11;
(cc) the amount paid or deposited under sub- section (3A) or section 17; and
(d)if the objection be to the amount of the compensation, the grounds on which the amount of compensation was determined.
(2) To the said statement, shall be attached a Schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by, the parties interested, respectively." (Emphasis supplied)
26. When the reference is received, the court causes notice specifying the date of hearing for determining the objection of the landowner/person aggrieved (section 20 of the Act). The Reference Court has to call upon the claimants to file their statement of claim and call upon the Collector to file his objections to the claim statement and then proceed with the matter.Where the application under section 18 contains the necessary particulars, the Reference Court may treat the application for reference under section 18 and the Collector's statement under section 19 of the Act as the pleadings. The landowner is entitled to specify the amounts claimed by him as compensation and the heads of compensation for the first time in such claim statement before the Reference Court. He can also file an application amending the claim. What is not permitted after the expiry of the period of limitation specified in section 18 of the Act, is changing the nature of objections from one category to another. If the reference had been sought with reference to objection to amount of compensation, the landowner cannot after the period of limitation, seek amendment to change the claim as objection to measurement or objection to apportionment.
27. A landowner, particularly a rural agriculturist, when he loses the land may not know the exact value of his land as on the date of the notification under section 4(1) of the Act. When he seeks reference he may be dissatisfied with the quantum of compensation but may not really know the actual market value. Many a time there may not be comparable sales, and Page 9 of 13 HC-NIC Page 9 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT even the courts face difficulty in assessing the compensation. There is no reason why a land owner who has lost his land, should not get the real market value of the land and should be restricted by technicalities to some provisional amount he had indicated while seeking the reference.As noticed above, the Act does not require him to specify the quantum and all that he is required to say is that he is not satisfied with the compensation awarded and specify generally the grounds of objection to the award. Under the scheme of the Act, it is for the court to determine the market value.
28. The compensation depends upon the market value established by evidence and does not depend upon what the land owner thinks is the value of his land.If he has an exaggerated notion of the value of the land, he is not going to get such amount, but is going to get the actual market value. Similarly if the landowner is under an erroneous low opinion about the market value of his land and out of ignorance claims lesser amount, that can not be held against him to award an amount which is lesser than the market value. When the Act does not require the landowner to specify the amount of compensation, but he voluntarily mentions some amounts, and subsequently, if the market value is found to be more than what was claimed, the land owner should get the actual market value. We fail to see why the landowner should get an amount less than the market value, as compensation. Consequently, it follows that if the landowner seeks amendment of his claim, he should be permitted to amend the claim as and when he comes to know about the true market value. When the Act is silent in regard to these matters, to impose any condition to the detriment of an innocent and ignorant landowner who has lost his land, would be wholly unjust.
29. The Collector making the offer of compensation on behalf of the State is expected to be fair and reasonable. He is required to offer compensation based on the market value. Unfortunately Collectors invariably offer an amount far less than the real market value, by erring on the safer side, thereby driving the landowner first to seek a reference and prove the market value before the reference court and then approach the High Court and many a time this Page 10 of 13 HC-NIC Page 10 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT Court, if he does not get adequate compensation. In most land acquisitions, the land acquired is the only source of his livelihood of the landowner. If the compensation as offered by the Collector is very low, he cannot buy any alternative land. By the time he fights and gets the full market value, most of the amount would have been spent in litigation and living expenses and the price of lands would have appreciated enormously, making it impossible to buy an alternative land. As a result, the landowner seldom has a chance of acquiring a similar land or an equal area of similar land. It would be adding insult to injury, if the landowner should be tied down to a lesser value claimed by him in the reference application, even though he was not required by law to mention the amount of compensation when seeking reference. The Act contemplates the land- owner getting the market value as compensation and no technicalities should come in the way of the landowner getting such market value as compensation.
32. We are conscious of the fact that the State of Maharashtra has a special provision in the Bombay Court-fees Act, 1959 (Entry 15 in Schedule I) which requires every claimant who makes an application to the Collector for a reference to court under section 18 of the Act to pay one-half the ad valorem fee on the difference between the amount awarded by the Collector and the amount claimed by the claimant. Thus the application under section 18 objecting to the compensation by implication is required to disclose the amount of compensation sought and pay court-fee on the increase sought. But this is only a requirement in regard to the Court-fees Act. This only means that if the claim is amended later, additional court-fee may have to be paid. This requirement under the Court-fees Act cannot be read as a requirement under the Land Acquisition Act. So long as Land Acquisition Act is not amended to require the person aggrieved to specify the amount of compensation claimed by him in the reference application, the bar of limitation will not apply even if the amount is specified in the application for reference and subsequently a higher amount is sought by way of amendment.
33. We, therefore, hold that the time limit under section 18 of the Act is only for seeking the Page 11 of 13 HC-NIC Page 11 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT reference by raising the objection to the amount of compensation or any of the other three objections. The landowner or persons aggrieved will have to give only the nature of objection to the award, that is whether it is with reference to measurement or compensation or person to whom it is payable or apportionment, and briefly mention the grounds in support of it. Though the landowner can give the details of his claim and quantum, he is not bound to do so. When the reference is made, he can give the particulars of the claim for compensation or additional particulars or even increase the claim."
10. In light of above decision of the Hon'ble Supreme Court, the amendment to seek higher rate of compensation is permissible at any stage of the proceedings of the reference filed under Section 18 of the Act and even at the appellate stage also.
11. For the reasons stated above, the petitions are allowed. Order dated 11.02.2015 impugned in Special Civil Application No. 12809 of 2015 passed by the learned 4th Additional Senior Civil Judge, Jamanagar is quashed and set aside and the application for amendment is allowed. Order dated 27.02.2015 impugned in rest of the petitions passed by the learned 4th Additional Senior Civil Judge, Jamnagar is quashed and set aside and the applications for amendment are allowed.
Rule is made absolute.
Direct service permitted.
Page 12 of 13 HC-NIC Page 12 of 13 Created On Sun Oct 18 01:41:38 IST 2015 C/SCA/12809/2015 JUDGMENT (C.L.SONI, J.) ajay gupta Page 13 of 13 HC-NIC Page 13 of 13 Created On Sun Oct 18 01:41:38 IST 2015