IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 1592 of 1986 to FIRST APPEALNo 1601 of 1986 For Approval and Signature: Hon'ble MR.JUSTICE KSHITIJ R.VYAS and Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- KANJIBHAI HARIDAS PATEL Versus STATE OF GUJARAT. -------------------------------------------------------------- Appearance: 1. First Appeal No. 1592 of 1986 MR GM AMIN for Petitioner No. 1 MR KM PATEL for Petitioner No. 1/1-1/6 Mr. M.K.Patel AGP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE KSHITIJ R.VYAS and MR.JUSTICE H.K.RATHOD Date of decision: 19/09/2002 ORAL JUDGEMENT (Per : MR.JUSTICE H.K.RATHOD) Common award made by the Assistant Judge, Panchmahals at Godhra in Land Acquisition Reference No. 10 of 1982 to 20 of 1982 dated 31st December, 1985 has been challenged by the appellants in this group of first appeals whereunder the reference court concerned has allowed the said references and has granted the additional amount of compensation including solatium and costs and interest at the rate of 4 % p.a. from the date of taking over the possession till the date of actual payment less the amount already received by the appellants. As per the impugned award, the reference court has granted Rs.190.00 per Are for Kyari lands and irrigated lands andRs.140.00 per Are for unirrigated Jarayat lands and Rs.100.00 per Are for the waste lands. The reference court has calculated compensation as per the decision in case of each of the claimants at this rate and the reference court has prepared tabular form in respect of the compensation payable to each of the claimants as per the details given in the tabular form attached to the judgment. The reference court has also declared that each of the appellants will be entitled to solatium at the rate of 15 per cent on the additional amount of compensation and they would also be entitled to interest on the additional amount of compensation from the date of taking of the possession till the payment is made at the rate of 4 per cent per annum. It was further directed by the reference court under the impugned award that the claimants whose lands were of new tenure shall have to be paid five per cent less on the additional amount of compensation being the Government share. All the said references were made by the Special Land Acquisition Officer at the instance of the appellants herein. All the said references were arising out of the award made by the special land acquisition officer, Dahod in Land Reference No. 74 of 1979 dated 8th March, 1982 arising out of the common acquisition for common purpose i.e. Machhana Nala Dam Scheme and all the lands are of Nansalai, and are almost of the same quality and by consent of the parties, said references were disposed of by the reference court by common judgment. Reference No. 10 of 1982 was treated as the main reference and all the evidence has been recorded and received in that case. All the said references were arising out of the common acquisition . The facts leading to the present appeals, in brief, are to the effect that the State of Gujarat intended to erect a dam over Machhan river and plans were prepared and proposal was made to the Government and the Government accepted it and for that purpose, several lands were proposed to be acquired to create a reservoir which lands included were of village Nansalai, Sapoi Tandi and other small villages. The Government declared its intention of acquiring several survey numbers including the lands involved in the said references particularly described in the schedule attached to the judgment of the reference court and a notification under section 4 of the Land Acquisition Act was published in the Government Gazette on 25.4.1974. After issuance of the notices, notification under section 6 of the Land Acquisition Act was published in the Government Gazette on 28.4.1977. Notices under section 9 of the Act were also issued to various claimants and the claimants herein appeared before the Special Land Acquisition Officer and claimed compensation for their lands at the rate of Rs.500.00 per Are for Kyari lands, at a rate of Rs.325.00 per Are for Jarayat lands and at a rate of Rs.125.00 per Are for waste lands. It was the submission of the claimants that inspite of that, the special land acquisition officer made an award dated 8.3.1982 and awarded Rs.120.00 per Are for Kyari land, Rs.80.00 per Are in respect of Jarayat lands and Rs.1.00 per Are in respect of waste lands. It was the case of the claimants before the reference court that the special land acquisition officer ought to have awarded compensation as prayed for by them but the special land acquisition officer has not taken into consideration the fertility of the lands, the sale instances of the surrounding lands and has not considered the evidence produced by the claimants and, therefore, it was prayed by the claimants before the reference court that the compensation as prayed for by them should be awarded by allowing the said references. Before the reference Court, one witness Kanji Haridas Patel was examined at Exh. 10 who was the claimant in Land Acquisition Reference No. 18 of 1982. Except the said witness, no other witness has been examined by the claimants before the reference court. The appellants had not produced any documentary evidence before the reference court. The appellant has also not produced any documents in support of his deposition and whatever documents were produced before the Special Land Acquisition Officer are not produced and proved before the Reference Court, and, therefore, considering the evidence on record, the reference court has decided the matter and has awarded additional compensation in favour of the appellants under its award dated 31st December, 1985. On the basis of these facts, it was submitted by Mr. Amin, learned advocate for the appellants that the reference court has committed error in not considering the amendment made in the Land Acquisition Act, 1894 dated 24th September, 1984 made effective from 30th April, 1982. He has also submitted that as per the said amendment, all the cases pending before any Court should be given the benefit of the amended Act and as per the amended Act, the appellants are entitled to have the solatium at the rate of 30 per cent and interest at the rate of 9 per cent per annum for the first year and at the rate of 15 % per annum from the date of taking over possession of the lands of the appellants. It was further submitted by him that as per section 23 [1A] of the Act, the appellants are entitled to have 12 per cent increase because in the instant case, section 4 notification was issued on 25th April,1974 whereas the award in question was given by the Special Land Acquisition Officer on 8th March, 1982 and, therefore, the appellants are entitled to have 12 per cent increase on the market rate for the period from 24th April,1974 to 8th March, 1982, per year. He also submitted that the reference court has awarded additional compensation contrary to the evidence which was led and produced before the special land acquisition officer. He has also submitted that the certificate of the Gram Sevak dated 7th March,1975 as well as the Additional Divisional Agriculture Officer about crop yields of the lands in question were produced but the same were not considered by the reference court. He has also submitted that the appellants have received award for raising the highest yields of crop from the land in question and for that, certificate issued by the agriculture department was very much there at Exh. 16 but the same was not considered by the reference court. He has further submitted that the reference court has also ignored two wells and the oil engine in survey no.183/1 and has not awarded any additional compensation to the claimants in that regard. According to his submission, the oral evidence of the appellant has also been ignored by the reference court. He has also submitted that the appellant has produced material evidence and the documents before the special land acquisition officer but the said record has been totally ignored by the reference court and in doing so, the reference court has committed an error. In short, it is his submission that the reference court has ignored the provisions of the amended Act as well as the oral and documentary evidence produced by the appellant before the special land acquisition officer and also before the reference court and, therefore, the award made by the reference court is required to be modified by enhancing the compensation awarded to the claimants. On the other hand, learned AGP Mr. M.K.Patel appearing for the respondent has submitted that against the award made by the special land acquisition officer dated 8th March, 1982, references were made by the special land acquisition officer before the reference court at the instance of the original claimant. He has submitted that the reference court not being the appellate court, was not in error in not considering the record which was produced by the appellant before the special land acquisition officer. According to him, unless and until the evidence produced before the special land acquisition officer and relied upon by the said officer is produced and proved before the reference court, the reference court cannot rely upon such evidence and therefore, reference court has not committed any error in that regard since the evidence produced before the special land acquisition officer was not produced and proved by the appellant before the reference court. He has further submitted in this case, the appellant has not produced and proved the evidence which was produced before the special land acquisition officer and, therefore, in absence of documents, the reference court was right in considering the admission on the part of the special land acquisition officer and was also right in granting additional compensation to the appellant claimant and in doing so, no error has been committed by the reference court and, therefore, according to him, these appeals are required to be dismissed. We have considered the submissions made by the learned advocates for the parties. We have perused the impugned award made by the reference court. We have also perused the original record wherein the special land acquisition officer made the award dated 8th March, 1982 and pursuant to the reference made by the special land acquisition officer at the instance of the claimants, reference court delivered the award in the reference. The contention raised by Mr. Amin that sufficient evidence has been produced and proved by the appellants before the special land acquisition officer but the same has not been taken into consideration by the reference court has been considered by this court in light of the observations made by the apex court in case of Chimanlal Hargovinddas versus Special Land Acquisition Officer, Poona and another reported in AIR 1988 SC 1652. The apex court has observed as under on page 1653 of the report: "While disposing of a reference, the following factors must be etched on the mental screen. (1) A reference under section 18 of the Land Acquisition (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 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 suit 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. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose." Similar view has been taken by this court in the matter of Collector of Panchmahals v. Desai Keshavlal Panalal, deceased by his heirs Kusumben and others reported in X GLR page 931. The Division Bench of this COurt has observed as under in the said decision at page 931 of the report : "The part containing reasons given by the Land Acquisition Officer does not necessarily form part of the record unless the land acquisition officer has been examined and he has stated the same which led him to come to a particular conclusion. This part can also be taken into account if both the sides agree to the same being read as a part of the evidence in the case. If, however, that award is challenged by the claimants on the ground of inadequacy of compensation or otherwise permissible in law, and taken to Court by a reference made under sec. 18 of the Act, a judicial proceeding commences before the Court and he has to show to the satisfaction property under acquisition and that he should be awarded at a particular rate or price set out in the reference. In those circumstances, the trial Court does not sit in appeal on any such award passed by the Land Acquisition Officer and consequently about his having dealt with the matter in a careless manner and the like and even if on the material before it, it was obliged to pass any remarks, it must be said that they should be in a restrained and dignified language." In view of these two decisions of the apex court as well as of this court, the contention raised by Mr. Amin cannot be accepted simply on the ground that whatever material has been produced by the appellant before the Special Land Acquisition Officer cannot be relied upon by the reference court unless the same is produced and proved by the appellant before the reference court and, therefore, in view of the aforesaid two decisions, in our opinion, the reference court was right in ignoring the material which was placed before the special land acquisition officer. As regards the contention raised by Mr. Amin that the evidence of the witness Kanjibhai H. Patel who was examined at Exh. 10, who is the claimant in reference case no. 18 of 1982 has been ignored by the reference court , it is necessary to make a reference of the observations made by the reference court. In his oral evidence at Exh. 10, it was deposed by him that the lands involved in the said references were capable of yielding three crops in a year and there were two well in survey no. 81/1 belonging to him. It was also deposed by him that he had installed an oil engine and he was giving water to other farmers also from his well; according to him, the well was a katchcha one but still it was having fabulous quantity of water. It was further submitted by him that he had prepared a pakka water course for irrigating his fields and that water course was about 500 ft. long. Another water course from another well was 375 ft.long. Such assertions made by the said witness in his examination in chief were challenged by the other side in cross examination and it was admitted by the said witness that whatever he stated about the crops was only his inference and estimates and not from any concrete evidence and hence no compensation can be fixed on the basis of the crop yielding or by any other method nor the price of the well or the water course can be awarded to the said claimant. It has also been observed by the reference court that in his evidence, he has stated about the well in the field of Devabhai Vallabhbhai but no evidence has been produced to that effect. If the wells were in existence in the fields, at least those wells must have been shown in the pani patrak but no such pani patrak has been produced by the claimants. However the claimants relied upon some sale instances of round about villages and those instances may prove useful to determine the approximate market price of the land which can be awarded to the claimants. The witness Kanji Haridas has stated in his evidence that all the lands of Nansalai are just as the lands of Jhalod and he quoted an instance between the marketing committee of Jhalod and he quoted an instance wherein the marketing committee of Jhalod purchased a piece of land admeasuring 3 A.5 G. for Rs.29151.00. In that regard, the reference court has observed that no documentary evidence has been produced; but presuming for the sake of an argument that the sale instances quoted by the claimant is a correct instance, then, price of the land comes to Rs.233.00 per Are. It has also been observed by the reference court that in his cross examination, the witness has admitted that he had no personal knowledge about the land purchased by the market committee and he was not even present when the document was prepared. It has also been observed that he had no personal knowledge about the negotiations that had taken place and it appears that the witness is deposing simply from his inference; as a matter of fact,it appears that the land purchased by the market committee was purchased by an institution and unless it was in a pressing need, it would not be giving fabulous price and, therefore, his sale instance cannot be relied upon to fix the price of the land in question. The witness however admitted that in their locality, the lands were sold at the rate of Rs.8500.00 per Acre. This admission of the claimant is one of the best evidence to show the price of the land if in this very locality. The reference court was of the view that if only one Acre of the land was sold for Rs.8500.00, on calculation, the price per Are would come to Rs.207.00. However if only one are of the land was sold,it was a small piece of land and naturally its price cannot be quoted with big plots of land which have been acquired by the State. The reference court was also of the view that for this instance, the claimant has not produced any documentary evidence to show as to which area of the land was sold and, therefore, the reference court observed that it should presume that it was only 1 Acre of land sold for Rs.8500.00. In absence of any evidence for fixing the price of the present lands, it has been left to only some guess work. The State of Gujarat did not produce any evidence about the sale instances in the locality. However, from the award made by the special land acquisition officer, the reference court observed that it appears that for erecting Machhan Nala Dam several lands of Raniyar, Tandi, Sapoi and Varod etc. were acquired. Therefore, the reference court observed that the award passed by the special land acquisition officer is certainly not an evidence against the claimant but still there are certain admissions made in award which can be taken into consideration and from the several sale instances quoted by the said officer in the award at Exh. 2, it is clear that the average price of the land in Nansalai area comes to Rs.180.00 per Are so far as Kyari land is concerned. The reference court, however, awarded Rs.190.00 per Are to the claimants for Kyari and irrigated Jarayat land is concerned and the reference court was having no reason to deviate from the standard adopted by the special land acquisition officer and granted Rs.140.00 per Are for unirigated Jarayat land and Rs. 100.00 per Are for waste land and accordingly made the award as stated earlier. We have perused the award made by the reference court.According to our opinion, the reference court was right in discussing the oral evidence led by the appellant and the documents produced by the appellant. The reference court was also right in observing that none of the documents and the oral evidence of the witness K.H. Patel Exh. 10 is supporting the say of the appellant before the reference court and, therefore, relying upon some admissions made by the special land acquisition officer, the reference court has drawn the conclusions as stated above and has granted additional compensation of the land in question. Therefore, in view of these facts, according to our opinion, the reference court has rightly discussed the evidence and has not relied upon the evidence of the appellant Exh.l0 for want of proof and in doing so,the reference court has not committed any error. Therefore,so far as the grant of additional compensation is concerned there is no error committed by the reference court and that part of the award does not require any modification. As regards the contention raised by Mr. Amin that the reference court has committed error in not considering the amendment made in the Land Acquisition Act, 1894 dated 24th September, 1984 made effective from 30th April, 1982 and that as per the said amendment, all the cases pending before any Court should be given the benefit of the amended Act and as per the amended Act, the appellants are entitled to have the solatium at the rate of 30 per cent and interest at the rate of 9 per cent per annum for the first year and at the rate of 15 % per annum from the date of taking over possession of the lands of the appellants, we have taken into consideration the provisions of the amended Act. According to our opinion, the special land acquisition officer has passed the award on 8th March,1982 and the reference were decided by the reference court on 31st December,1985 and in between the amended provisions of the Land Acquisition Act would apply and, therefore, on that basis, the appellants herein are entitled to 30 per cent solatium upon the additional compensation as well as interest as per the provisions of the amended Act. As per sub section (1A) of section 23 of the amended Act, in addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub section (1) in respect of such land to the date of the award of the Collector or the date of taking over possession of the land whichever is earlier. As per sub section (2) of section 23 of the amended Act, in addition to the market value of the land, as above provided, the COurt shall in