FA/1295/1985 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1295 of 1985 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? -Yes. 2 To be referred to the Reporter or not ? -No. 3 Whether their Lordships wish to see the fair copy of the judgment ? -No. 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? -No. 5 Whether it is to be circulated to the civil judge ? -No. ========================================================= PATEL BABABHAI TRIBHOVANDAS - Appellant(s) Versus DIST COLLECTOR OF MAHESANA - Defendant(s) ========================================================= Appearance : MR PRAKASH K JANI for Appellant(s) : 1, MS TRUSHA PATEL, AGP for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 01/09/2008 ORAL JUDGMENT 1. By way of this appeal, the original claimant has prayed for enhancement of the compensation amount awarded by the learned FA/1295/1985 2/8 JUDGMENT Extra Assistant Judge, Mehsana in Land Acquisition Reference No.26 of 1981 and 5 of 1981. 2. Brief facts of the case are that there are land bearing S. No.1597/131, 1597/132 and 1478 admeasuraing 24 Are 45 sq. mtr., 15 Are 32 sq. mtr. and 28 Are respectively situated in the sim of village Gojariya, Taluka-Vijapur. Lands of S.No.1597/131 and 1597/132 are converted into NA lands since 1969 and the land of S.No1478 is agricultural land. The Executive Engineer (R & B) of Mehsana proposed to acquire the said land of Gojaria of Vijapur Taluka for the purpose of constructing the road leading from Gandhinagar to Ambaji and Special Land Acquisition Officer, Mehsana was appointed to take necessary action for the acquisition of those lands and for the fixation of the amounts of the compensation for those acquired lands. Notification under Section 4 of the Land Acquisition Act was published on 14/4/1977 and Notification under Section 6 of the Land Acquisition Act was published on 9/3/1978. Special Land Acquisition Officer vide his order dated 6/2/1979 – 23/10/1980 awarded compensation of Rs.2,000/- per Are for lands of S. Nos.1597/131 and 1597/132 i.e. total Rs.50,900/- and Rs.30,060/- respectively and Rs.300/- per Are i.e. Rs.8,400/- for land of S.No.1478. Being aggrieved by the same, the claimants have filed references before the learned Extra Assistant Judge, Mehsana being Land Acquistion Reference Nos.26 of 1981 and 5 f 1981. The learned Judge after considering the case FA/1295/1985 3/8 JUDGMENT of the claimants, has partly allowed the references and awarded the additional amount of compensation at the rate of Rs.50,312.50 in Land Acquisition Reference No.26 of 1981 and Rs.6,440/- in Land Acquisition Reference No.5 of 1981 together with proportionate costs of their respective land reference cases and interest at the rate of 4.5 percent per annum. 3. Heard the learned counsels for both the sides. 4. Learned counsel for the appellant has mainly relied upon three documents i.e. Exh.35, 36 and 24. In the first document i.e. Exh.35, which was after two years of the Section 4 notification, therefore, the Reference Court has rightly rejected the same. However, learned counsel for the appellant submitted that Exh.36 is prior to two years of Section 4 notification and of the same village and is situated near the land. 5. According to him, even if the case of adjoining land is taken, the Reference Court ought to have deducted 33% from the price. He has also relied upon the decision in the case of Union of India and another vs. Raghubir Singh, reported in AIR 1989 SC 1933. Para 31, 32 and 34 of the said judgment reads as under: “31. We now come to the merits of he reference. The reference is limited to the interpretation of S.30(2) of the Land Acquisition (Amendment) Act of 1984. Before the enactment of the Amendment Act, solatium was provided under S. 23(2) of the Land Acquisition Act (shortly, “the FA/1295/1985 4/8 JUDGMENT Parent Act”) at 15% on the market value of the land computed in accordance with s. 23(1) of the Act, the solatium being provided in consideration of the compulsory nature of the acquisition. The Land Acquisition Amendment Bill, 1982 was introduced in the House of the People on 30 April, 1982 and upon enactment the Land Acquisition Amendment Act 1984 commenced operation with effect from 24 September, 1984. S. 15 of the Amendment Act amended S. 23(2) of the Parent act and substituted the words '30 per centum' in place of the words '15 per centum'. Parliament intended that the benefit of the enhanced solatium should be made available albeit to a limited degree, even in respect of acquisition proceedings taken before that date. It sought to effectuate that intention by enacting S. 30(2) in the Amendment Act. S. 30(2) f the Amendment Act provides: “(2) the provisions of sub-s. (2) of s. 23 ..... of the principal Act, as mentioned by clause (b) of S. 15 ..... of this 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 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People) and before the commencement of this Act.” In construing S. 30(2), it is just as well to be clear that the award made by the Collector referred to here is the award made by the Collector under S. 11 of the Parent Act, and the award made by the Court is the award made by the Principal Civil Court of Original Jurisdiction under S. 23 of the Parent Act on a reference made to it by the Collector under S. 19 of the parent Act. 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 solatium 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. 32. The question is: what is the meaning of the words “or to any order passed by the High Court or Supreme Court on appeal against any such award?” Are they limited, as contended by the appellants, to appeals against an award of the Collector or the Court made between 30 April, 1982 and 24 September, 1984, or do they include also, as contended by the respondents, appeals disposed of FA/1295/1985 5/8 JUDGMENT between 30 April, 1982 and 24 September, 1984 even though arising out of awards of the Collector or the Court made before 30 April, 1982. We are of opinion that the interpretation placed by the appellants should be preferred over that suggested by the respondents. Parliament has identified the appeal before the High Court and the appeal before the Supreme Court by describing it as an appeal against 'any such award'. The submission on behalf of the respondents is that the words 'any such award' mean the award made by the Collector or Court, and carry no greater limiting sense; and that in this context, upon the language of S.30(2), the order in appeal is an appellate order made between 30 April, 1982 and 24 September, 1984 – in which case the related award of the Collector or of the Court may have been made before 30 April, 1982. to our mind, the words 'any such award' cannot bear the broad meaning suggested by learned counsel for the respondents. No such words of description by way of identifying the appellate order of the High Court of of the Supreme Court were necessary. Plainly, having regard to the existing hierarchical structure of for a (forum?) contemplated in the parent Act these appellate orders could only be orders arising in appeal against the award of the Collector or of the Court. The words 'any such award' are intended to have deeper significance, and in the context in which those word 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 24 September, 1984. In other words S.30 (2) of the Amendment act extends the benefits of the enhanced solatium to cases where the award by the Collector or by the Court is made between 30 April, 1982 and 24 September, 1984 or to appeals 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 24 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. We find ourselves in agreements with the conclusion reached by this Court in K.Kamalajammanniavaru (dead) by Lrs. v. Special Land Acquisition Officer (AIR 1985 SC 576) (supra), and find ourselves unable to agree with the view taken in Bhag Singh v. Union Territory of Chandigarh, (AIR 1985 SC 1576) (supra). The expended meaning given to S.30(2) in the latter case does not, in our opinion, flow reasonably from the language of that sub-section. It seems to us that the learned Judges in that case missed the significance of the word 'such' in the collocation 'any such award' in S.30(2). Due significance must be attached to that words, FA/1295/1985 6/8 JUDGMENT and to our mind it must 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 of the Court rendered between 30 April, 1982 and 24 September, 1984. 34. Our attention was drawn to the order made in State of Punjab v. Mohinder Singh, (AIR 1982 SC 758) (supra), but in the absence of a statement of the reasons which persuaded the learned Judges to take the view they did we find it difficult to endorse that decision. It received the approval of the learned Judges who decided Bhag Singh (AIR 1985 SC 1576) (supra), but the judgment in Bhag Singh (supra) as we have said earlier, has omitted to give due significance to all the material provisions of S. 30(2), and consequently we find ourselves at variance with it. The learned Judges proceeded to apply the principle that an appeal is a continuation of the proceeding initiated before the Court by way of reference under S. 18 but, in our opinion, the application of a general principle must yield to the limiting terms of the statutory provision itself. Learned counsel for the respondents has strenuously relied on the general principle that the appeal is a re-hearing of the original matter, but we are not satisfied that he is on good ground in invoking that principle. Learned counsel for the respondents points out that the word 'or' has been used in S. 30(2) as a disjunctive between the reference to the award made by the Collector or the Court and an order passed by the High Court or the Supreme Court in appeal and, he says, properly understood it must mean that the period 30 April, 1982 to 24 September, 1984 is as much applicable to the appellate order of the High Court or of the Supreme Court as it i to the award made by the Collector or the Court. We think that what Parliament intends to say is that the benefit of S. 30(2) will be available to an award by the Collector or the Court made between the aforesaid two dates or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the Court made between the said two dates. The word 'or' is used with reference to the stage which the proceeding rests at the time when the benefit under S. 30(2) is sought to be extended. If the proceeding has terminated with the award of the Collector of the Court made between the aforesaid two dates, the benefit of S. 30(2) will be applied to such award made between the aforesaid two dates, if the proceeding has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage when the benefit of S. 30(2) will be applied. But in every case, the award of the FA/1295/1985 7/8 JUDGMENT Collector or of the Court must have been made between 30 April, 1982 and 24 September, 1984.” 6. Counsel for the respondent has supported the order of the Reference Court and submitted that in view of the reliance on Section 24, no interference is called for. Hence the appeal is devoid of merits. Learned advocate for the respondent has relied upon decision reported in 2008 AIR SC weekly 2723. 7. A contention is raised by the learned advocate for the appellant regarding Exh.36 which was executed on 1/1/1975 whereby Rs.13/- per Are and Rs.15/- sq. mtr. of land of survey no.1624 was sold by that sale deed for a sum of Rs.9,625/- If one taken into consideration the said price, the land price would come to approximately Rs.732/- per Are. Even if 1/3 is deducted the price will come to 487 as on 1/11975. Present notification was issued on 14/1/1977 and there is period of two years and one month and therefore 23.3 percent is required to be enhanced which comes to Rs.487 + Rs.113.47. Therefore the price is Rs.600/- per Are whereas Reference Court has granted Rs.500/- per Are. Hence, additional 100/- per Are is required to be granted. 8. In view of the decision of Apex Court in the case of Union of India vs. Raghubher Singh reported in AIR 1989 SC 1933, the claimants are entitled the benefit under Section 23(2) of the Act. FA/1295/1985 8/8 JUDGMENT 9. Thus, it is held that the claimants are entitled to additional sum of Rs.100/- per Are granted by the Reference Court. The claimant shall also be entitled to solatium under Section 23(2) of the Act. Appeal is allowed to the aforesaid extent. No order as to costs. (K.S.JHAVERI, J.) (ila)