IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL Nos. 7317 TO 7342 of 1995 with CROSS OBJECTION Nos. 125 TO 150 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA and MISS JUSTICE R.M.DOSHIT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- SPL.LAQ OFFICER Versus PRATAPJI H THAKORE -------------------------------------------------------------- Appearance: MR JM THAKORE Sr.Counsel for MR. AJAY R MEHTA & MR NEERAV THAKKAR advocates for appellants. NOTICE SERVED for Respondent No. 1 MR PG DESAI GP & MRS AMEE YAGNIK AGP for Res.No.2 MR AJ PATEL, MR GM AMIN & MR SK ZAVERI for the claimants and Cross-objectors. -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA and MISS JUSTICE R.M.DOSHIT Date of decision: 12/10/98 ORAL JUDGEMENT ( PER : M.R.CALLA J ) 1. All these 26 First Appeals and 26 Cross Objections filed therein are directed against the common judgment and order dated 31st July, 1995 passed by the learned Assistant Judge, Mehsana, in Land Acquisition Reference Cases Nos. 133 to 138, 140 to 145, 300, 307 to 313, 514 to 518/90,. Whereas the appeals and Cross Objections arise out of a common judgment and order as aforesaid and involve common questions of law based on identical facts, we propose to decide all these 26 First Appeals and 26 Cross-Objections by this common judgment and order. 2. The lands situated at village Saij, Taluka-Kalol, District Mehsana, were sought to be acquired for the public purpose for ONGC storage Tank. The Notification under section 4 of the Land Acquisition Act, was published in the Gazette dated 1st April 1986 for acquisition of the lands mentioned therein and the Notification under section 6 of the Land Acquisition Act was published in the Gazette dated 8th August 1986. The notices under section 9 of the Act were issued to the claimants and after hearing the claimants and other parties, the Land Acquisition Officer passed the Award on 6th October, 1988, awarding compensation at the rate of Rs.6/- per Sq.Mt. Against this Award passed by the Land Acquisition Officer, the claimants made Reference Application under section 18 of the Act for enhancement of the compensation, because according to them, the compensation awarded by the Land Acquisition Officer was not adequate. According to the claimants, the lands were fertile and it is their case that they were taking three crops out of these lands. It is also their case that the lands were situated in the village Saij, which is a developed village near Kalol Township and that the lands are also situated adjoining Ahmedabad-Mehsana Highway and GIDC Shed is situated on the Eastern side of the road. It is also their case that the the Industries like Mahendra Mills, Satyam Cinema are also situated in the sim of village Saij and GIDC Estate is also situated in the sim of village-Saij, and IFCO and ONGC Storage are also situated adjoining the acquired lands in the same village. On the premise as aforesaid, the claimants pointed out that the compensation given by the Land Acquisition Officer was not adequate and they should have been given compensation at the rate of Rs.200/- per Sq.Mt. The aforesaid claim of the claimants was traversed by the Special Land Acquisition Officer, on whose behalf, while denying the allegations of the claimants, it was contended that the compensation awarded by the Land Acquisition Officer was adequate and the Reference Application should be dismissed. 3. The Reference Court framed the following issues for its determination : (a) Whether the applicants prove that the compensation awarded is adequate. (b) What additional compensation, if any, is entitled. (3) What order, and Award ? The Reference Court has found that the compensation awarded by the Land Acquisition Officer was inadequate and that the claimants were entitled to an additional compensation of Rs.84/- per Sq.Mt. over and above Rs.6/per Sq.Mt as has been granted by the Land Acquisition Officer. The Reference Court decided the Reference in terms as aforesaid, and directed that the Award be drawn accordingly. Both the sides have felt aggrieved against the order dated 31st July 1998, while Special Land Acquisition Officer for ONGC has filed First Appeals as above, the claimants have filed the Cross Objections claiming still higher compensation and they are not satisfied with the award of compensation at the rate of Rs. 84 + Rs. 6 =Rs.90/- per Sq.Mt. 4. Before we proceed to examine these appeals on merits, we may first deal with the preliminary objection which has been raised by Mr. S.K.Zaveri on behalf of the claimants that these appeals are not maintainable at the instance of the Special Land Acquisition Officer for ONGC. Mr. Zaveri submitted that under section 3 (c) of the Act, the expression "Collector" means a Collector of a District and Deputy Commissioner or any officer specially appointed by the appropriate Government to perform the function of Collector under this Act. Mr. Zaveri submitted that in the present case, "appropriate Government" is Central Government and the State Government had issued the Notifications with regard to the appointment of the Special Land Acquisition Officer for ONGC on the basis of the aforesaid power derived from the Central Government. Mr. Zaveri submitted that under the Land Acquisition Act, the Special Land Acquisition Officer or the Collector has no function to challenge the orders passed in the Reference and therefore the Special Land Acquisition Officer could not have filed these First Appeals against the Reference orders passed by the concerned Assistant Judge. He has also invited our attention to the provisions contained in section 18 of the Act with regard to the reference to the court, and has submitted that the Collector or the Special Land Acquisition Officer for that purpose can not challenge the orders passed in Reference by the court under section 18 of the Act. In support of his submission as aforesaid, Mr. Zaveri has placed reliance on a decision of Lahore High Court, in the matter of Collector and Chairman, District Board, Gujaranwala VS Hira Nand, reported in AIR 1929, Lahore, 10. In the case before the Lahore High Court, the local Government had acquired a plot of land for the District Board of Gujaranwala and three persons who were interested in the acquired plot filed separate objections against the compensation awarded by the Land Acquisition Officer and accordingly 3 References were made to the District Judge of Gujaranwala. The District Judge recorded detailed reasons in one case only and for the reasons given therein awarded the amount of compensation in each case. Against this order, the appeals were preferred. In one of the appeals which had been filed as a first case, it was conceded that the District Board had no locus-standi to appeal, and it was argued that the appeals were on behalf of the Collector and that the addition of the words " and Chairman, District Board" after the word "Collector" was a superfluity. It was then found that he had no power of attorney from the Collector and the title of the case was described as " District Board, Gujaranwala through the Chairman, District Board, VS Hira Nand etc." It was also signed by the Chairman, District Board. Lahore High Court recorded that even if it is assumed that the Chairman was also the Collector of the District, he had not given any power of attorney in his capacity as such and that the Collector in Punjab is not Head of the District as he is in some other provinces of India. In the State of Punjab, he is a Revenue officer exercising certain powers under the Land Revenue and Tenancy Acts or some other special Acts, and the head of the district is the Deputy Commissioner. It was found that the land was acquired by the local Government and this being so, section 79 of Civil Procedure Code comes into play , which lays down that the suits by or against the Government shall be instituted by or against the Secretary of the State for India-in-Council. This rule must apply to appeals also. It was found that the appeals had been filed by a person not competent to do. On the other hand, the learned counsel for ONGC has argued that the Special Land Acquisition Officer is fully competent to appeal against the order passed by the Reference Court enhancing the compensation and the objections raised on behalf of the claimants by Mr. Zaveri is wholly misconceived and the same is not at all tenable. In support of this submission, reliance has been placed on the decision of the Supreme Court in the case of Himalaya Tiles & Marbles (p) Ltd. VS F.V.Coutinho,reported in AIR 1980, SC. 1118. In para-7 and para-13 of the judgment, the Supreme Court has considered the import of the words 'interested person' as has been used in section 18 of the Act. The Supreme court has found that the definition of the 'person interested' is an inclusive definition and must be liberally construed so as to include all persons who will directly or indirectly be interested either in the title of the land or in the quantum of compensation. In the case before the Supreme court, the lands were actually acquired for the purpose of a company and once the land vests in the Government after acquisition it stood transferred to the Company under the agreement entered into between the Company and the Government. The Supreme court, therefore, held that it can not be said that the company had no claim or title to the land at all because under agreement, the company had to pay compensation and hence was concerned with the question of quantum of compensation. After considering judicial opinions expressed in several other cases, the Supreme court found that the judicial opinion seems to be of the view that the definition of 'person interested' must be liberally construed so as to include a body, local authority or a company for whose benefit the land is acquired. It was held that the company was undoubtedly a person interested as contemplated under section 18 (1) of the Act and the appeals which have been thrown out by the High Court on the ground that he had no locus-standi to file the appeal was found to be wrong.Reliance has also been placed on a decision reported in (1996) 2 , SCC, 332, Union of India & Ors. VS Special Tehsildar (ZA) and others. In this case, the lands were required by the Union of India and compensation to be paid was to be borne by the Department of Space. The State Revenue authorities urged the Department of Space to deposit the enhanced compensation amount in the court. The Department thereupon filed wirt petitions in the High Court praying that it should be impleaded as party in the appeals which were pending before the High Court as had been filed by the State Revenue authorities. The High Court held in the writ petitions that the Requisitioning Department, in the land requisition cases could not be considered as an interested party and therefore should not be impleaded as a party. This decision was challenged before the Supreme Court on the basis of the decision of the Constitution Bench in the case of U.P. Avas Evam Vikas Parishad VS Gyan Devi, reported in (1995) 2, SCC, 326, because acquisition proceedings had taken place at the expense and for the benefit of appellants. Reliance was also placed on Union of India VS Shersngh, reported in (1993) 1, SCC, 608. The Supreme court did not find it necessary to decide the issues on merits because the writ petitions were found to be completely misconceived and held that the proper course was to apply to the appellate court for being impleaded as a party. The Department was thus relegated to the remedy of filing application for being impleaded as a party before the High Court in the proceedings in pending appeals. Mr. Thakore submits on the strength of this decision that the locus-standi of the present appellants to file and maintain these appeals can not be questioned. 5. In the case of The State of Maharashtra (Public Works Department) v. Bapurao Dnyanoba Chiddarwar and ors., reported in AIR 1973 Bombay 231, the Division Bench of the Bombay High Court considered the question as to whether the State can file appeal against the determination of compensation by the Reference Court. The preliminary objection was raised that the appeal filed by the State was not maintainable because the appeal really had been filed by the Collector and that the State is not entitled to file an appeal challenging the decision of the Court regarding determination of compensation. With reference to the decision in Re: Jerbai Mehta, AIR 1950 Bombay 243, it was submitted that in this decision, it has been held that the only person who is entitled to appear in a reference relating to compensation is the Collector as defined in Section 3(c) of the Act and hence the Government had no locus standi and in cases relating to apportionment, neither the Collector nor the Government has any locus standi whatsoever. In the case of Jerbai Mehta (supra), having regard to the entire scheme of the Land Acquisition Act, it was held that the only person who is entitled to appear in a reference relating to compensation is the Collector as defined in Section 3(c) of the Act and that in cases relating to apportionment, neither the Collector nor the Government has any locus standi whatsoever. After noticing the decision of Jerbai Mehta (supra), the Division Bench of the Bombay High Court in the case of State v. Bapurao (supra), took the view that the decision in the case of Jerbai Mehta (supra) must be restricted to the question as to who was entitled to appear in a reference under Section 18 by the Collector and that the question as to whether after the Court had given a decision on merits enhancing the compensation which was originally awarded by the Collector, the appeal should be filed only by the Collector and not by the State Government, did not arise for decision in that case at all. The Division Bench of the Bombay High Court, in the case of State v. Bapurao (supra) then considered the observations made by the Division Bench of the Bombay High Court in yet another case of the Bombay High Court itself, i.e. Shankarlal v. Municipal Committee, Pusad, in First Appeal Nos.98 and 128 of 1958, decided on 29th January 1965 (Bombay), i.e. appeal arising out of a land acquisition matter filed by the State of Bombay through the Collector and the Division Bench held that, having regard to the observations in Jerbai Mehta's case (supra), the State of Bombay was not a proper party at all and ought not to have been allowed to file the appeal. It was then observed that the decision in the case of Jerbai Mehta (supra) did not directly deal with the question whether the State is entitled to file an appeal challenging the decision of the Court on a reference under Section 18 of the Act. This decision was cited before another Division Bench of the Bombay High Court in the case of Extra Assistant Director of Agriculture, Government of Bombay v. Chandrashekhar, First Appeal No.82 of 1993, decided on 6.8.1970 (Bombay). In that case, the appeal was filed by the Extra Assistant Director of Agriculture, Government of Bombay. An objection as was raised in the case of State v. Bapurao (supra), was also raised before the Court and reliance was also placed on the decision in the case of Jerbai Mehta (supra). The decision in Shankarlal's case (1965), i.e. First Appeal Nos.98 and 128 of 1958, decided on 29th January 1965 (Bombay) referred to above was also cited and the Division Bench held that in the earlier decision, it was accepted that the only person who was entitled to appear in reference relating to compensation was the Collector as defined in Section 3(c) of the Act. However, the real controversy in First Appeal No.82 of 1963 dated 6.8.1970 (Bombay) was not whether the State could file an appeal against the decision of the Court on a reference under Section 18, but the question was whether an appeal filed by the Extra Assistant Director of Agriculture was competent. The argument on behalf of the appellant in that case was that the acquisition having been made for the Department of Agriculture of the State, the Extra Assistant Director of Agriculture, as a representative of that Department was a person interested in the acquisition of the land and being a party to the proceedings must be deemed to have had a right to seek a reference under Section 18 of the Land Acquisition Act. It was this contention which was decided and the Division Bench held that the Collector represented all the interests, namely, of the State as also of any such acquiring body with whose funds and for whose benefits any land is acquired and, therefore, they did not accept the submission made on behalf of the appellant that the Extra Assistant Director of Agriculture was a person interested in acquisition proceedings before the Collector and, therefore, he had a right to appear in the subsequent case. It is significant to note that though the earlier decision of the Division Bench in Shankarlal's case (supra) was positively cited, the learned Judge had concurred with the view which was taken by the Division Bench of the Nagpur High Court in R.S.Deoji Dharsi v. Ghisulal, reported in AIR 1953 Nagpur 256. In the Nagpur case, the Division Bench had taken the view that the party competent to file an appeal against the decision on a reference under Section 18 of the Act was either the Collector or the Provincial Government, but not a company for whose benefit the acquisition proceedings were taken. Citing this decision with an approval, the Division Bench observed that, this decision was therefore a specific authority where the only person to seek the reference under Section 18 was the claimant and the only person who could challenge the decision of the District Judge in the reference under Section 18 was either the Collector or the Provincial Government but not a Company for whose benefit acquisition proceedings were taken. After considering the analysis of the decisions as aforesaid rendered by the Bombay High Court and the Nagpur case, the Division Bench of the Bombay High Court in the case of State v. Bapurao (supra) agreed with the view taken by the Gujarat High Court in the case of Gautamlal v. Land Acquisition Officer, reported in AIR 1970 Gujarat 81, in which it was held that the only parties to the reference under Section 18 were the claimants on the one hand and the Collector on the other because in the acquisition proceedings, the Collector represents all the interests, namely, of the State as also of any such acquiring party with whose funds and for whose benefits the land is acquired. The observations made by the Division Bench in Shankarlal's case (supra) that the State could not file an appeal against an order of reference made under Section 18 of the Act were not accepted by the later Division Bench and it was observed that those observations were supported by the decision in Jerbai Mehta's case (supra). In this case of State v. Bapurao (supra), the Division Bench also further observed that when the Collector acts in proceedings relating to acquisition of land or for determination of compensation in respect of the acquired land, he acts entirely on behalf of the State Government and the object of the inquiry made by him which finally culminates by an award is merely to determine a sum which the State can offer to the person whose property is being acquired as compensation for the land which is the subject matter of the acquisition. 6. The study of the ratio laid down in the cases as aforesaid makes it amply clear that the Special Land Acquisition Officer is certainly an interested person and he represents the case of the State as well as the bodies for whose benefit the land is sought to be acquired. He is certainly a person interested in the question relating to the quantum of compensation and therefore adequacy or otherwise of the amount of compensation as determined by the reference court under section 18 may be appealed against by the Special Land Acquisition Officer also and so far as Lahore High Court decision (supra) on which reliance has been placed by Mr. Zaveri is concerned, it has no application on the facts of the present case and it can not be said that it is not the function of the Land Acquisition Officer to challenge the order passed by the reference court with regard to the award of compensation. The decision of the Division Bench of Bombay High court, as reported in AIR 1973, Bombay, 231, has been given while agreeing with the decision of our own High Court i.e. AIR 1970, Guj, 81, and there is no reason to take a different view than what has already been taken by our own High Court and the Bombay High Court on this aspect of the matter. The appeals are therefore held to be maintainable at the instance of the Special Land Acquisition Officer under section 3 (c) of the Act and the preliminary objection raised on behalf of the claimants against the maintainability of the appeals at the instance of the Land Acquisition Officer is hereby rejected and it is held that the Special Land Acquisition Officer is competent to file these appeals. 7. Coming to the merits of the impugned order, for the purpose of considering and appreciating the evidence oral as well as documentary, we find that on behalf of the claimants, six witnesses have been examined, witness no.1 being Shakraji Chelaji Thakore, at Ex.51; witness no.2 Bhikhubhai Ramjibhai Rami, at Ex.75; witness no.3 Rameshbhai Natvarlal Patel at Ex-76; witness no.4 Chauhan Devendrasinh Rampalsinh at Ex.78; witness no. 5 Satpalsinh Vrajkishorsinh at Ex.80; and witness no.6 Chhanaji Mathurji at Ex.82. As against it, ONGC has examined only one witness viz. Balubhai Jivanbhai Chaudhari at Ex.84. While no documentary evidence was produced by the ONGC except placing reliance upon map Ex.87, claimants produced Village Forms 7/12 at Exs. 11 to 42, 52 to 74 and certified copies of the judgments of the Land Acquisition Reference Nos. 69/86 to 73/86 at Ex.44 and valuation report at Ex.47 and sale-deeds at Exs. 77, 79 and 81 in support of their case. The witnesses who have been examined on behalf of the claimants have deposed that the lands under acquisition are situated in the Sim of village-Saij; that the lands were fertile; village Saij is situated near the township of Kalol; lands acquired are just adjoining to the South-East of Kalol; that the acquired lands are adjoining Ahmedabad-Mehsana Highway and the same are situated on the Western side of the Highway; that the prevailing market value of the acquired lands, at the time of acquisition was more than Rs.200/- per Sq.Mt, and in this regard, reliance has been placed on sale instances at Exs. 77, 79 and 81, according to which, the lands were sold at the rate of Rs.161/- per Sq.Mt, at the rate of Rs.152/- per Sq.Mt. and Rs.152/- per Sq.Mt. The sale-deed Ex.77 was executed on 24th January, 1983, sale-deed Ex.79 was executed on 20th November, 1985 and sale-deed Ex.81 was executed on 20th November, 1985. Whereas, the Notification under section-4 was