IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3623 of 1983 With SPECIAL CIVIL APPLICATION No 3224 of 1987 And SPECIAL CIVIL APPLICATION NO. 1844 of 1987. For Approval and Signature: Hon'ble CHIEF JUSTICE MR DM DHARMADHIKARI and Hon'ble MR.JUSTICE K.A.PUJ ========================================================= 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO 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 Civil Judge? : NO --------------------------------------------------------- Special Civil Application No. 3623 of 1983: REVABEN WIDOW OF CHIMANLAL GOPALDAS & Others. Versus STATE OF GUJARAT & Others. Special Civil Application No. 3224 1987 : Kamalaben Chhotubhai Sorathia & Others. Versus State of Gujarat & Others. Special Civil Application No. 1844 of 1987 : Surat Municipal Corporation Versus Kamalaben Chhotubhai Sorathia & Others. ------------------------------------------------------- Appearance: 1. Special Civil Application No. 3623 of 1983 MS KJ BRAHMBHATT for Petitioners No. 1-3,5-8 MS VASUBEN P SHAH for Petitioners No. 1,4-8 Ms. Manisha Lavkumar AGP for Respondent No. 1 Mr. Mrugan Purohit with MR PRASHANT G DESAI for Respondent No. 2 NOTICE SERVED for Respondent No. 2 RULE SERVED for Respondent No. 3 2. Special Civil Application No. 3224 of 1987 DELETED for Petitioner No. 1 Ms. Manisha Lavkumar, AGP for Respondent No. 1 3. Special Civil Application No. 1844 of 1987. Mr. Mrugan Purohit with Mr. Prashant G. Desai for petitioner. Respondent No.1 deleted. Ms. K.J. Brahmbhatt for respondents No. 4 & 5. Respondents Nos. 2/1 to 2/5 served. ---------------------------------------------------------- CORAM : CHIEF JUSTICE MR DM DHARMADHIKARI and MR.JUSTICE K.A.PUJ Date of decision: 11/01/2002 CAV JUDGEMENT (Per : MR.JUSTICE K.A.PUJ) Since common point is involved in Special Civil Application Nos. 3623 of 1983 and 3224 of 1987 and since Special Civil Application No. 1844 of 1987 is a cross-petition arising out of the judgment and order of learned Assistant Judge, Surat, against which the petitioner in Special Civil Application No. 3224 of 1987 has also filed the petition before this Court, all the three petitions are heard together and disposed of by this common judgment. The facts stated hereinafter are taken from the Special Civil Application No. 3623 of 1983. 2. Heard the learned advocates of the respective parties and perused the pleadings and the materials and evidence placed on record. 3. In Special Civil Application No. 3623 of 1983, the petitioners have sought for a declaration from this Court to the effect that provisions contained in Part III of Appendix I to the Bombay Provincial Municipal Corporations Act, 1949, (hereinafter referred to as "the Act") as unconstitutional and ultra vires. The petitioners have further prayed for quashing and setting aside the judgment and award of the learned Assistant Judge, District Court, Surat, respondent No.3 herein in so far as it pertains to solatium and further directing the Surat Municipal Corporation, the respondent No.2 herein to pay solatium amount as declared by the learned Civil Judge (SD) in Municipal Reference No. 2 of 1979. The facts giving rise to the present petition are briefly stated as under. 4. The petitioners were the owners of the property situate in Salabatpura known as "Maliniwadi" in Ward No.3 at Surat bearing Nos. 2885-D-1-A-9-10-11. The respondent Corporation had acquired 150 sq.yds. of land out of Nondh No. 2885-D-A-9; 260 sq.yds. out of Nondh No. 2885-D-A-10; and 300 sq.yds. out of Nondh No. 2885-D-A-11. Thus, in all 710 sq.yds. of land was acquired by the respondent-Corporation under Section 213 of the Act. The respondent Corporation had declared the award in connection with the acquisition of the said lands fixing the compensation to be awarded to the petitioners at the rate of Rs. 70/per.sq.yard. 5. The petitioners were not satisfied with the award passed by the respondent-Corporation as the said award according to the petitioners was quite inadequate, unjust and not having the criteria in accordance with the principles. The petitioners were also of the view that the compensation awarded by the respondent Corporation was not as per the market-price of the land and that the petitioners were not heard by the respondent Corporation before fixing the amount of compensation. The petitioners therefore made reference, being Municipal Reference No. 2 of 1979 before the learned Civil Judge (SD), Surat, who vide his award dated 24.4.1981 had fixed the compensation in the sum of Rs. 42,000/- with 15% solatium thereon, with running interest at the rate of 6% p.a. from the date of taking of possession, i.e. 7.4.1976 till realisation with costs. 6. Being aggrieved by the aforesaid award and judgment, the respondent Corporation preferred an appeal being Regular Civil Appeal No. 171 of 1981 in the Court of learned Assistant Judge, Surat. The learned Assistant Judge, vide his order dated 5th January 1983, had confirmed the judgment and award of the learned Civil Judge (SD) on all other points, except the payment of solatium. The learned Assistant Judge, Surat, was of the view that the relevant provisions of the Act appear to be violative of the Article 14 of the Constitution of India, but as per the settled legal position of law, if the decree which may be passed or made in any appeal, in which question referred to has arisen, is subject to any further appeal or revision, no reference under Section 113, read with Order 46, Rule 1 of the Civil Procedure Code can be made. The decree which was passed in the appeal before the learned Assistant Judge, Surat, was subject to further appeal and/or revision and the claimants-respondents in the said appeal could also move this Court under Article 227 of the Constitution and in this view of the matter, the learned Assistant Judge, Surat has declined to refer the matter to this Court and held that the claimants-respondents were not entitled to solatium at the rate of 15% on the amount of compensation awarded by the learned Civil Judge (SD), Surat. However, the learned Assistant Judge, Surat, has confirmed the rest of the decree passed by the learned Civil Judge (SD), Surat. 7. Being aggrieved by the said order of the learned Assistant Judge, Surat, the present petition, Special Civil Application No. 3623 of 1983 is filed by the petitioners. While challenging the order, the petitioners have urged in the petition that impugned provisions contained in the Act are violative of the fundamental right of the petitioners under Article 14 of the Constitution of India. It was alternatively contended by the petitioners that the provisions contained in Part III of Appendix I to the Act read with Section 284-N of the Act are violative of the fundamental rights of the petitioners guaranteed under Article 14 of the Constitution of India, inasmuch as the owner of the property which is acquired compulsorily under the Act is not differently situated from the owner of the property whose property was acquired under the provisions of the Land Acquisition Act and that there being no nexus for classification between the two classes of owners, whose properties are acquired for the similar purpose under the two different Acts, both of them would require the same treatment and that the provisions contained in the Local Act depriving the owner of the land from the payment of solatium would be discriminatory and violative of the fundamental rights of the petitioners guaranteed under Article 14 of the Constitution of India. It was further contended by the petitioners that the purpose of acquisition either under the Act or under the Land Acquisition Act being similar and that the different nature of acquisition under different Acts, does not furnish a rational ground to pay more compensation to one owner and less compensation to another. The petitioners, therefore, submitted that the provisions contained in Part III of Appendix A gives discriminatory treatment to the petitioners whose lands are acquired under the Act and they are therefore violative of Article 14 of the Constitution of India. 8. The petitioners have alternatively submitted that the land of the petitioners were acquired under Section 213 of the Act and that the provisions contained in Part III of Appendix A would not apply to the present case and that the petitioners would therefore be entitled to solatium at the rate of 15%, in view of the provisions contained in the Act, read with the provisions contained in Section 23(2) of the Land Acquisition Act. 9. The respondent Corporation opposed the petition and in its affidavit-in-reply, it has been submitted that there is no question of different treatment being given to the person whose property is acquired compulsorily under the Act and from the owner of the property whose property is acquired under the provisions of the Land Acquisition Act. It was further submitted that the entire purpose of both the Acts is different and the provisions of both the Acts and objects are also different. Hence, there was no question of discriminatory treatment, merely because another Act makes provision for acquisition for limited purpose. It was also contended by the respondent Corporation that the acquisition under the Land Acquisition act cannot be equated with the provisions of the Act as under the Land Acquisition Act, the acquisition is even made for a public purpose apart from the provisions of the Act which are quite different for the purpose of acquisition. Under the provisions of the BPMC Act, the land is acquired at the time of constructing building since that part of the land with the super-structure is within the alignment of road and that all the owners of the properties within the City whose lands or property are acquired because of alignment of road are equally acquired by the Corporation. It was also contended that there is no question of discriminatory treatment being given merely because provisions for solatium are not made under the Act. It was further submitted that the acquisition under the Land Acquisition Act and acquisition under the BPMC Act consequent upon the road alignment are entirely two different things and they are similarly situated and both the provisions are totally different and therefore there is no violation of Articles 14 of the Constitution of India. The respondent-Corporation has also opposed the plea taken by the petitioners that their case is governed by the provisions of Section 213 of the BPMC Act and they are entitled to solatium in view of the provisions contained in Section 23(2) of the Land Acquisition Act as the provisions contained in Part III of Appendix A to the BPMC Act would not apply to the present case. 10. Having regard to the above facts and the pleadings of the parties, the moot question to be decided by us is as to whether the provisions contained in Part III of Appendix I to the BPMC Act are unconstitutional and ultra vires by not making any express provision with regard to grant of solatium as in the case of land acquired under Land Acquisition Act which provides such provision under Section 23(2) of the said Act, any discriminatory treatment is given to the land owners whose lands are acquired under the BPMC Act. Miss. K.J. Brahmbhatt, learned Advocate appearing for the petitioners has drawn our attention to Chapter XIV of the BPMC Act which consists of Section 202 to Section 252. Section 213 of the Act deals with acquisition of open land or of land occupied by platforms within regular line of street, which reads as under: "213. Acquisition of open land or of land occupies by platforms, etc. within regular line of street. If any land not vesting in the Corporation, whether open or enclosed, lines within the regular line of a public street and is not occupied by a building, or if a platform, verandah, step, compound wall, hedge or fence or some other structure external to a building, abutting on a public street or a portion of a platform, verandah, step, compound wall, hedge or fence or other such structure, is within the regular line of such street, Commissioner may, after giving to the owner of the land or building not less than seven clear days' written notice of his intention to do so, take possession on behalf of the Corporation of the said land with its enclosing wall, hedge or fence, if any, or of the said platform, verandah, step or other such structure as aforesaid or of the portion of the said platform, verandah, step or other such structure aforesaid, which is within the regular line of the street and, if necessary clear the same and the land so acquired, shall thenceforward be deemed a part of the public street : Provided that when the land or building is vested in the [Government] possession shall not be taken as aforesaid, without the previous sanction of the Government concerned and, when the land or building is vested in any Corporation constituted by any law for the time being in force, possession shall not be taken as aforesaid, without the previous sanction of the [State] Government." Section 216 of the BPMC Act deals with compensation to be paid and betterment charges to be levied. Sub-section (1) of Section 16 reads as under; 216. Compensation to be paid and betterment charges to be levied. (1) Compensation shall be paid by the Commissioner to the owner of any building or land required for a public street under Section 211, 212, 213 or 214 for any loss which such owner may sustain in consequence of his building or land being so acquired and for any expense incurred by such owner in consequence of the order made by the Commissioner : Provided that__ (i) any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set-back to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation; (ii) if any such increase in value exceeds the amount of loss sustained or expenses incurred by the said owner, the Commissioner may recover from such owner half the amount of such excess as a betterment charge." Section 389, which falls under Chapter XXIV, deals with 'compensation'. Section 389(1) envisages minimum damage in certain cases and for such damage, compensation is to be assessed in the manner prescribed by or under the Act and it is to be paid over to the person who sustained such damage. Clause (f) of Section 389(1) refers to acquiring any building or land required for any public street under Section 216 of the Act. Section 390 of the Act empowers the Commissioner to determine compensation. Thus, the combined reading of Sections 213, 216, Section 389(1)(f) and Section 390 makes it clear that the land owners whose lands are acquired under the BPMC Act are entitled to compensation which is to be assessed in accordance with the provisions laid down in the said Act. Since Section 216 refers to "any loss' which the owner may sustain in consequence of his building or land being acquired, it also includes solatium as contemplated under Section 23(2) of the Land Acquisition Act. 11. It was further contended by the learned advocate for the petitioners that Section 284-N of Chapter XVI deals with 'land acquisition'. Section 284-N reads as under : "284N. Extent to which Land Acquisition Act shall apply to acquisition of land otherwise than by agreement. The Land Acquisition Act, 1894 (in this and the next succeeding sections referred to as 'the Land Acquisition Act') shall to the extent set forth in Appendix I regulate and apply to the acquisition of land under this Chapter, otherwise than by agreement, and shall for that purpose be deemed to form part of this Chapter in the same manner as if enacted in the body hereof, subject to the provisions of this Chapter and to the provisions following, namely :-........." The above provision makes it clear that the Land Acquisition Act applies to this Chapter, i.e. Chapter XVI only to the extent set forth in Appendix I to the BPMC Act. Appendix I lays down provisions of the Land Acquisition Act, 1894, regulating the acquisition of land for improvement purposes under the BPMC Act, which reads as under; Part-I- Preliminary, except clauses (e) and (f) of Section 3. Part-II.Acquisition, except sub-section (1) of Section 4, section 6 and sub-section (2) of Section 17. Part-III-Reference to Court and Procedure thereon, except sub-section (2) of section 23 and clauses (6) and (7) of section 24. Part-IV-Apportionment of compensation. Part V- Payment. Part VI-Temporary occupation of land. PartVII-Miscellaneous." While reading Part-III of Appendix-I, it is obvious that the Land Acquisition Act applies to reference to Court and procedure thereon, except sub-section (2) of Section 23 and clauses (6) and (7) of Section 24. Sub-section (2) of Section 23 deals with solatium. Thus, an exception is carved out whereby the provisions of sub-section (2) of Section 23 of the Land Acquisition Act would not apply to the acquisition of land for improvement purposes under Section 284N of the Act, which falls under Chapter XVI. On the basis of provisions of Section 284N, read with Part III of Appendix I to the BPMC Act, the learned Advocate for the petitioners has submitted before us that since no exception is made with regard to Chapter XIV of the Act which deals with streets and acquisition of open land or of land occupied by platforms etc., within regular line of the street is made under Section 213 of the Act, the solatium has to be granted by the respondent-Corporation. 12. While making above submissions, the learned counsel for the petitioners has relied on the old decision of Bombay High Court in the case of Borough Municipality of Ahmedabad. Vs. Jayendra Vajubhai Divatia, reported in AIR 1937 Bombay 432, wherein it is held that Sections 23, 24 and 25 of the Land Acquisition Act, constitute the code laying down the principles on which the District Court is to act in arriving at the compensation to be paid and it is impossible to leave out of that Code sub-section (2) of Section 23 of that Act. These sections determine the basis on which the value of the land is to be ascertained on compulsory purchase and allowance of the fifteen per cent must be set off against matters disallowed under S. 24. It was further held that these sections apply to proceedings in the District Court under Section 198 of Bombay Municipal Boroughs Act. The District Judge is entitled to allow the 15% under Section 28 of the Land Acquisition Act, in addition to the amount of compensation awarded under Section 198 of the Act for compulsory purchase. 13. It is to be noted here that the above decision was rendered in the context of claim for compensation made under the provisions of Bombay Municipal Boroughs Act. Sub-section (3)(c) of the said provides that compensation, the amount of which shall in case of dispute be ascertained herein in the manner provided in Section 198, shall be paid by the Municipality to the owner of any land added to a street under clause (b) of sub-section (3) for the value of the said land. So that, what is to be paid for the compensation for the value of the land compulsorily taken. Section 198 of the said Act provides for the method of assessing compensation. If the amount is not agreed, the parties have to appoint Arbitrators, who are selected as Sirpanch and in the event of the Panchayat not arriving at a decision, then the matter shall, on application by either party, be determined by the District Court, which shall, in cases in which the compensation is claimed in respect of land, follow as far as may the procedure provided by the Land Acquisition Act, 1894, for proceedings in matters referred for the determination of the Court. Since no such provision similar to that in Section 198(3) of the said Act is incorporated in the BPMC Act, the said judgment, in our considered opinion, does not render any assistance to the petitioners. The learned advocate for the petitioners has further relied on the decision of the Bombay High Court in the case of D.S. Rege Vs. The Municipal Corporation of Greater Bombay and another, reported in AIR 1979 Bombay 311, wherein sub-sections (2) and (3) of Sections 298, 299 and sub-sections (1) and (2) of Section 301 of Bombay Municipal Corporation Act (3 of 1888) were declared as violative of Articles 14 of the Constitution of India and void. It was observed in the said decision that the owner whose land is acquired under the provisions of Sections 297 to 301 is prejudiced as compared to what would have happened had the land been acquired under the provisions of Section 296. The objective of both sets of provisions is to acquire lands for a public street. Both sets of provisions can be applied when the object is to widen a public street. There is no good reason why the Commissioner cannot validly resort to the provisions of Section 296 when a public street is required to be widened from end to end. There are no guidelines as to when one set of provisions must be implemented and when the other. It is further observed by the Court that there is no difference between the owners whose lands are to be acquired under the provisions of Sections 297 to 301 for prescription of regular line of the street and the owners whose lands are to be acquired under Sec. 296 for widening or extending a public street. There being no such difference, it cannot be held to bear a reasonable relation to the object to be achieved. The Court has therefore taken the view that there is no classification founded on an intelligible differentia which distinguishes the owners of lands left out by the provisions of Sections 297 to 301. 14. In our view, the Bombay High Court has taken the view that both the sets of provisions fall under the same type and an artificial distinction was made out which is not approved by the Court. The question posed before us is to be viewed with the provisions contained in the BPMC Act and since two Acts are different, and more so subsequent judgments, dealing with the similar issue under the BPMC Act, having been considered by us, the petitioners are not justified to derive any support from the said judgment. 15. Learned Advocate for the petitioners has further drawn our attention to the specific observation made in the decision of the Hon'ble Supreme Court in the case of Municipal Corporation of the City of Ahmedabad and Others Vs. State of Gujarat and Another, reported in AIR 1972 S.C. 1730. In the end of Para 14 of the said judgment, it is observed, that the owner has to be compensated for every deprivation or loss and, therefore, prima facie it must be held that the Corporations Act provides for the payment of compensation for the property acquired. On the basis of this observation, the learned Advocate for the petitioners has pleaded before us that every deprivation or loss includes the amount of solatium and it has to be granted to the petitioners. While upholding the constitutional validity of Section 212 of the BPMC Act, the Hon'ble Supreme Court has held in the said decision that the two Sections, namely Section 216(1) and Section 389(1) if read together make it clear that full indemnification in terms of money for the loss caused is to be made to the owner of the property or other interests affected by reason of the exercise of power under Section 212. Since