FA/4000/2001 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4000 of 2001 To FIRST APPEAL No. 4003 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE AKSHAY H.MEHTA ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus JAYANTILAL NARSHI & 2 - Defendant(s) ========================================================= Appearance : MR UR BHATT, AGP for Appellant(s) : 1, RULE SERVED for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKSHAY H.MEHTA Date : 29/03/2007 CAV COMMON JUDGMENT : The State of Gujarat has preferred these appeals under Section 54 FA/4000/2001 2/28 JUDGMENT of the Land Acquisition Act, 1894 [hereinafter referred to as 'the Act'] to challenge the judgment and award made by Civil Judge [S.D.], Rajkot dated 18/11/2000 in Land Reference Cases No. 422/1989 to 425/1989. Since these appeals involve common questions of fact and law, they are heard together and now they are being disposed of by this common judgment. 2. The respondents are the original claimants. They owned agricultural lands at village Adbalka. These lands were needed for construction of Aji-II Irrigation Scheme Main Canal. Hence, proceedings under the Act to acquire the land were initiated. Notification under section 4 was published in the Government Gazette on 22/9/1983 and the declaration under section 6 was published on 20/9/1984. Thereafter, all the necessary formalities were complied with by the Deputy Collector acting as Land Acquisition Officer and published the award under section 11 of the Act on 17/6/1985. The Land Acquisition Officer determined the market value of the land at Rs.0-90 paise per sq. mtr. The respondents, being dissatisfied with the award, made application under section 18 of the Act for making reference to the Civil Court for enhancement of the compensation. The Collector, after completing necessary formalities, forwarded the statement and relevant record along with the application for reference under section 19 of the Act to the concerned Court and ultimately proceedings were numbered as Land Reference Cases No. 422 of 1989 to 425 of 1989. FA/4000/2001 3/28 JUDGMENT 2.1. In Land Reference Case No. 422 of 1989, the respondent claimed Rs.33,630/- for the land, Rs.10,089/- for solatium and Rs.7062-30 paise for legal increase, against the Special Land Acquisition Officer's award of Rs.4540-05 ps. 2.2. In Land Reference Case No. 423 of 1989, the respondent claimed Rs.10,000/- for the land, Rs.3,000/- for solatium and Rs.2,100/- paise for legal increase against the award of Rs.1,350/- made by the Land Acquisition Officer. 2.3. In Land Reference Case No. 424 of 1989, the respondent claimed Rs.49,120/- for the land, Rs.14,736/- for solatium and Rs.10,315/- for legal increase against the sum of Rs.6,531/- awarded by the Land Acquisition Officer. 2.4. In Land Reference Case No. 425 of 1989, the respondent claimed Rs.72,200/- for the land, Rs.21,660/- for solatium and Rs.15,162/- for legal increase against the sum of Rs.9,747/- awarded by the Land Acquisition Officer. 2.5. The aforesaid references were made on the ground that the Land Acquisition Officer did not determine the correct market value of the lands. FA/4000/2001 4/28 JUDGMENT According to them, he ought to have given due consideration to the sale instances pertaining to nearby lands, but instead, he had relied on the sale instances which were not relevant and not comparable. 2.6. The claims of the respondents were resisted by the appellant by filing written statement at Exh. 8 in all the cases. It was averred that the respondents were not entitled to have more compensation than awarded by the Land Acquisition Officer and the award was just and proper. It was contended that all the relevant factors were kept in view by the Land Acquisition Officer and on the basis of the same, the market value of the lands in question was determined. The appellant also raised the dispute that the reference applications were not maintainable because they were filed after expiry of period of limitation. The appellant, therefore, prayed that the reference cases deserved to be dismissed. 2.7. The Court framed the issues at Exh. 6 which were common for all cases. They are as under :- 1. Whether the applicant proved that the amount of compensation awarded by the Land Acquisition Officer is inadequate? If yes, what additional amount of compensation should be awarded to the applicant? FA/4000/2001 5/28 JUDGMENT 2. Whether the present application is time barred? 3. What order and award? 2.8. The Court treated Reference Case No. 425 of 1989 as the main case and consolidated the other cases with it by order passed below Exh. 10. The evidence was recorded in L.R. Case No. 425 of 1989. The parties led evidence, oral as well as documentary. Respondents examined Jayantilal Narsinhbhai – applicant of L. R. Case No. 425 of 1989 at Exh. 11. They also produced documents comprising extract of revenue records in respect of the lands belonging to them. 2.9. As against that, the appellant examined Rajabhai Ramjibhai Padaya at Exh. 23. He produced on record the copies of sale-deeds at Exhs. 24 and 25. The appellant also examined other witnesses, namely Gangarambhai Valjibhai at Exh. 26, Savabhai Laxmanbhai at Exh. 27 and Maheshbhai Maganbhai Chavda at Exh. 28. The appellant further produced documentary evidence comprising the sketch of irrigation canal, the statement maintained under the Act of Aji-II Irrigation Scheme, copy of the Government Gazette containing notification, etc. 2.10. On the basis of the material produced before it, the Court arrived FA/4000/2001 6/28 JUDGMENT at a conclusion that the reference applications were made within the period of limitation prescribed under the Act. It also held that the compensation determined by the Land Acquisition officer was inadequate and it was required to be increased. The Court fully allowed all the claim cases. In L.R. Case No. 425 of 1989 it awarded Rs.99,275/-, in L.R. Case No. 424 of 1989 it awarded Rs.46,241/-, in L.R. Case No. 423 of 1989 it awarded Rs.13,750/- and in L.R. Case No. 422 of 1989 it awarded Rs.7,540/- together with interest at the rate of 12% and also the costs. Hence, these appeals. 3. I have heard Mr. Uday R Bhatt, Ld. AGP for the appellant. The respondents though served, have not remained present either in person or through their advocate. Mr. Bhatt has submitted that the award made by the Court is exorbitant. He has submitted that the Court failed to consider relevant material to decide the question of limitation. According to him, the reference cases were clearly time barred. He has submitted that so far as the Collector is concerned, he is the authority to decide whether application of the claimant for reference under section 18 deserved to be accepted and acted upon. For that purpose he is required to scrutinize the material and only upon finding everything proper, should make the reference. According to Mr. Bhatt, even the Court is saddled with the duty to scrutinize the entire material and then to decide controversies involved in the case. To substantiate his submission, Mr. Bhatt has drawn my attention to relevant provisions of the Act as well as FA/4000/2001 7/28 JUDGMENT certain circulars and directions issued by the Government from time to time. He has also relied on judicial decisions rendered by this Court as well as the Apex Court. He has, therefore, prayed that the case be remanded to the concerned Court for its re-consideration by keeping in view the relevant material. 4. I have carefully considered the submissions of Mr. Bhatt. I have also closely perused the record as well as the relevant provisions of the Act. There is no dispute that the lands in question were needed for public purpose and they were acquired by following due procedure. The disputes are only with regard to the quantum of compensation determined by the Land Acquisition Officer as well as expiry of period of limitation. According to the appellant, all the reference cases were time barred. The record shows that specific plea regarding limitation has been raised by the appellant in its written statement and the Court has framed issue No. 2 in respect of the limitation. However, the Court has decided the issue in favour of the original applicants i.e., the respondents holding that the appellant had failed to establish that copy of the award was made available to the respondents after the Land Acquisition Officer pronounced the award on 17/6/1985. The Court also held that the appellant had failed to prove that notices under section 12 (2) of the Act were issued to the respondents. According to the Court, as soon as the respondents learnt about the award, they obtained the certified copy and made the application under section 18 of the Act and, therefore, the reference cases were within time. FA/4000/2001 8/28 JUDGMENT 4.1. Before I discuss this issue in the light of submissions made by the Ld. AGP, it would be necessary to refer to certain relevant provisions of the Act. After publication of notification under section 4 and declaration under section 6 of the Act, the Collector has to give notice under section 9 to the persons interested. By the said notice, the Collector has to declare the intention of the Government to take possession of the land and call upon persons interested in such land to lodge claim for compensation. He is also required to state particulars of the lands needed for the public purpose and to summon all persons interested in the land to appear personally or by their agent. Section 10 empowers the Collector to require and enforce the making of statements as to names and interests. Section 11 of the Act enjoins the Collector to inquire into the objections, if any, raised by any person interested in pursuance of notice given under section 9 to the measurements made under section 8 and into the value of the land at the date of publication of notification under section 4 of the Act and also into the respective interests of the persons claiming the compensation. He is thereafter, required to make the award. Sub-section (2) of section 11 empowers the Collector to include the matters in the award which have been agreed in writing by the persons interested in the land. Section 11-A prescribes that within two years of the date of publication of the declaration, the Collector shall make award under section 11, failing which the entire proceedings of the acquisition of the land shall lapse. Section 12 requires FA/4000/2001 9/28 JUDGMENT complete reproduction, which is as under :- “12. Award of Collector when to be final.- (1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and apportionment of the compensation among the persons interested. (2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.” Section 16 confers upon the Collector power to take possession and upon taking the possession, the land would vest absolutely in the Government free from all encumbrances. Section 18 is contained in Part-III of the Act, which pertains to reference to Court and procedure thereof. Section 18 reads as under :- “18. Reference to Court.- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to be measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken : Provided that every such application shall be made - FA/4000/2001 10/28 JUDGMENT (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.” Thus upon receiving application under section 18, the Collector is duty bound to examine whether the application is made within period of limitation prescribed by the proviso to section 18, what are the grounds of objection raised in the reference, who are the persons to whom compensation or apportionment of compensation should be paid, etc. Further, making an application under section 18 within the time limit prescribed under section 18(2) is a sine-qua non for a valid reference by the Collector. The Collector also, while making reference under section 18 of the Act, does not act as an agent of the Government, but he acts as a statutory authority exercising his own power. He is, therefore, bound to make the reference in the manner prescribed by section 19 of the Act. Section 19 of the Act reads as under :- “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; FA/4000/2001 11/28 JUDGMENT (b) the names of the persons whom he has reasons 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) of 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.” 4.2. The aforesaid provisions show that sections 18 and 19 of the Act are closely interconnected. When the application for making reference under section 18 is received by the Collector, it is his duty to examine that all the conditions laid down in section 18 are complied with. Here the Collector is required to exercise statutory power of reference. If the application is not made in time, he can reject it as incompetent and refuse to make reference. It is, therefore, duty of the Collector to examine whether the person making the application was present or represented by his agent before him at the time of making the award or whether notice under section 12(2) of the Act had been issued to such person by him. He should also examine the question of FA/4000/2001 12/28 JUDGMENT limitation and if it is found that application for reference is not made in time, he should reject it since he does not have any power to condone delay. However, if the application is found to have been made in time, he should act in accordance with section 19 and prepare a statement containing the information as specified in section 19 (1) clauses (a) to (d) and provide it to the Court in writing under his hand. It is also his duty to attach a schedule giving particulars of the notices served upon the claimants and of the statements in writing made or delivered by the parties interested respectively. The State Government has issued from time to time circulars containing the instructions with regard to the manner in which the Collector is supposed to comply with section 19 of the Act. According to these instructions, along with application for reference to the Court, the Collector has to forward copy of the award, but the Collector must not insist upon the person making application to furnish a copy of the award along with the application. He should also before making reference, examine whether the compensation was received under protest or it was received without objection. 4.3. The powers and functions of the Collector have been adequately described by the Apex Court in the decision rendered in the case of Mohammed Hasnuddin v/s. The State of Maharashtra reported in AIR 1979 S.C. 404. In the said decision, the Apex Court has laid down as under :- “18. The Allahabad High Court has read more into the decision of the Privy Council in Ezra's case (1905) ILR 32 Cal 605 (supra) than is there. FA/4000/2001 13/28 JUDGMENT Merely because the Collector while making an award under S. 11 or in serving a notice on the owner of the land under S. 12, acts as an agent of the Government, it does not necessarily imply that while making a reference to the court under S. 18, he acts in the capacity of an agent of the Government. While it is true that the Collector in making the award under S. 11 acts as an agent of the Government, he in making a reference to the court under S. 18 acts as a statutory authority. Section 18, sub- section (1) of the Act entrusts to the Collector the statutory duty of making a reference on the fulfillment of the conditions laid down therein. The Collector, therefore, acting under Sec. 18, is nothing but a statutory authority exercising his own powers under the section.” It has further observed as under :- “24. The word 'require' in S. 18 of the Act implies compulsion. It carries with it the idea that the written application makes it incumbent on the Collector to make a reference. The Collector is required to make a reference under S. 18 on the fulfillment of certain conditions. The first condition is that there shall be a written application by a person interested who has not accepted the award. The second condition is as to the nature of the objections which may be taken, and the third condition is as to the time within which the application shall be made. The power of the Collector to make a reference under S. 18 is thus circumscribed by the conditions laid down therein, and one condition is the condition regarding limitation to be found in the proviso. 25. The conditions laid down in S. 18 are 'matters of substance and their observance is a condition precedent to the Collector's power of reference', as rightly observed by Chandavarkar J. in Re Land Acquisition Act [supra]. We are inclined to the view that the fulfilment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the FA/4000/2001 14/28 JUDGMENT reference exists. It must accordingly be held that the making of an application for reference within the time prescribed by proviso to S. 18, sub-sec. (2) is a sine qua non for a valid reference by the Collector.” 4.4. Collector's duty and function have been adequately re-emphasized by the Apex Court in a subsequent decision rendered in the case of Ram Kumar v/s. Union of India reported in (1991) 2 S C J 345 it has observed as under :- “Under Section 18 of the Act the only requirement for the person interested who had not accepted the award was to move a written application to the Collector requiring that the matter be referred for the determination of the Court. One of the grounds for not accepting the award was the amount of compensation. Once such application was moved it was the duty of the Collector to make a reference to the Court. Under Section 19 of the Act, while making the reference the Collector was required to state for the information of the Court the particulars as mentioned in clauses (a) to (d) of sub-section (1) of section 19 of the Act. Thus it was the duty of the collector to mention not only the situation and extent of land but even particulars of any trees, buildings or standing crops thereon. The agriculturist whose land is acquired may not be fully conversant with the khastra No., or area as entered in the Revenue records and the Union of India or the State acquiring such land should not be allowed to take any advantage of such ignorance of the agriculturists. Once an application is moved for making a reference under Section 18 of the Act, it becomes the duty of the Collector to send full information to the Court regarding the entire land acquired and it is thereafter the duty of the Court to decide the matter in accordance with law.” The Collector should also try to see that upon receipt of the FA/4000/2001 15/28 JUDGMENT application the reference is made as early as possible, preferably within the time limit prescribed under section 18. If the application is received by him within the prescribed period of limitation, it is not very material whether the reference is made after the expiry of period of limitation, but undue delay may be avoided so that it may not correspondingly increase the interest payable on additional amount in case the reference is ultimately allowed. Even after the statement as prescribed by section 19 is forwarded to the Court, the Collector should not become inactive and leave the things to the Government Pleader alone for contesting the reference. What he is supposed to do after making the reference, I will discuss it little later. 4.5. When reference is made to the Court u/S. 18 of Act for determination of objections raised in respect of matters specified in sub-sec. (1), it is the duty of the Court to see that reference made to it by the Collector is in order and conditions laid down therein are duly complied with so as to give jurisdiction to hear the reference. Under the Act special power is conferred upon the Court and it acts as a Tribunal. It does not act as an appellate Court. The Court has, therefore, to examine all relevant questions including the question of limitation. If it is found that reference is time barred, it can decline to answer the reference. Court has also to examine the documents forwarded by the Collector and if they are found wanting in some respects, it has to call upon the Government to furnish additional documents and information. 4.6. The Apex Court in the case of Ram Kumar v/s. Union of India FA/4000/2001 16/28 JUDGMENT [supra], has pointed out the functions and duties of the Court also which acts as a Tribunal of special jurisdiction under section 18 of the Act. It has laid down as under :- “26. From these considerations, it follows that the court functioning under the Act being a Tribunal of special jurisdiction it is its duty to see that the reference made to it by the Collector under section 18 complies with the conditions laid down therein so as to give the Court jurisdiction to hear the reference. In view of these principles, we would be extremely reluctant to accept the statement of law laid down by the Allahabad High Court in Abdul Karim's case (AIR 1963 All. 556) (FB) (supra). 27. Every Tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limit of its special jurisdiction and whether the jurisdiction of such Tribunal is dependent on the existence of certain facts or circumstances. Its obvious duty