IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 149 of 1987 to FIRST APPEALNo 167 of 1987 and FIRST APPEAL NO 282 TO 289 OF 1987 and FIRST APPEAL NO 349 TO 350 OF 1987 and FIRST APPEAL NO 2301 TO 2326 OF 1987 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? -------------------------------------------------------------- BAVAMIYA ACHHUMIYA Versus SPECIAL LAND ACQUISITION OFFICER -------------------------------------------------------------- Appearance: MR NITIN M AMIN for Petitioner No. 1 MR. A.D. OZA, GOVERNMENT PLEADER for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE KSHITIJ R.VYAS and MR.JUSTICE H.K.RATHOD Date of decision: 23/10/2002 ORAL JUDGEMENT (Per : MR.JUSTICE H.K.RATHOD) Heard learned advocate Mr.Nitin Amin for the appellants and Mr. A.D. Oza, learned Government Pleader for the respondents in this group of appeals. This group of appeals is arising in respect of the lands acquired by the State Government relating to village Bavla, Kalyangadh and Vithalpur. Brief facts of the first appeal nos. 149 of 1987 to 167 of 1987 relating to village Bavla are as under: After the formation of the State of Gujarat, the developments in all parts of the State needed attention. SO far as the development in and around Bavla was concerned, the Executive Engineer, Panchayat Section, Ahmedabad was assigned the work to study the needs in the Taluka and recommended where and what type of roads were necessary. After careful study, the Executive Engineer, Panchayat Section, Ahmedabad planned out a scheme for constructing Bavla Rupal Begava Koth Road and also pointed out in his scheme that for the purpose of constructing that road, barely required for the developments, the lands were required to be acquired. He reported to his higher authorities through the collector. The Collector, Ahmedabad approved the same and recommended the Government to approve and issue necessary notification for acquisition of the agricultural lands. The Govt. accepted the recommendations and issued notifications for the acquisition of the lands. The agricultural lands of the claimants situated within the sim of the town Bavla were included in acquisition operation. Accordingly, notification u/s. 4 of the Land Acquisition Act dated 26.4.1976 was published in the Government Gazette on 10.6.1976. Thereafter, necessary formalities were observed and again a notification under section 6 of the said Act dated 5.5.1977 was published in the Government Gazette on 9.6.1977. Thereafter, the Special Land Acquisition Officer took up the work of hearing the proceedings of acquisition on hand, summoning all the interested persons. As regards the lands of the present claimants was concerned, land acquisition case no.2 of 1973 was initiated and heard by the Special Land Acquisition Officer.The Special Land Acquisition Officer, after hearing all the interested in the lands, declared his award on 4.3.1983 awarding the compensation at the rate of Rs.1.00 per sq. mtr. The lands were Jarayat lands. Some of the lands were new tenure while some were old tenure lands. The claimants were demanding compensation at the rate of Rs.30.00 per sq. mtr. Therefore, the claimants then decided to prefer references and, therefore, at the instance of the original claimants, the Special Land Acquisition Officer made references of these 19 cases to the District court at Narol which were, in turn, transferred to the Extra Assistant Judge, Ahmedabad Rural at Narol being Land Acquisition Case No. 138 of 1984 to 155 of 1984 and land acquisition case no. 212 of 1984. The reference court decided the said references on 30.12.1985 and partly allowed the references and awarded additional compensation to the claimants over and above the amounts awarded by the Special Land Acquisition Officer together with interest at the rate of 9 per cent per annum from the date of possession till realization with proportionate costs. In the said award, the reference court has not granted solatium at the rate of 30 per cent to the claimants; not granted 12 per cent increase and also not granted 15 per cent interest under proviso to amended section 28 of the Land Acquisition Act. The facts relating to the first appeal no. 282 of 1987 to 289 of 1987 in respect of village Kalyangadh are as under: After the formation of the State of Gujarat, the developments in all parts of the State needed attention. SO far as the development in and around Dholka was concerned, the Executive Engineer, Panchayat Section, Ahmedabad was assigned the work to study the needs in the Taluka and recommended where and what type of roads were necessary. After careful study, the Executive Engineer, Panchayat Section, Ahmedabad planned out a scheme for constructing Bagdana-Lagdana-Kalyangadh Road and also pointed out in his scheme that for the purpose of constructing that road, barely required for the developments, the lands were required to be acquired. He reported to his higher authorities through the Collector. The Collector, Ahmedabad approved the same and recommended the Government to approve and issue necessary notification for acquisition of the agricultural lands. The Govt. accepted the recommendations and issued notifications for the acquisition of the lands. The agricultural lands of the claimants situated within the sim of the town Kalyangadh were included in acquisition operation. Accordingly, notification u/s. 4 of the Land Acquisition Act dated 4.11.1976 was issued and thereafter, necessary formalities were observed and again another notification dated 4.6.1977 under section 6 of the Land Acquisition Act was issued and published on 28.7.1977. Thereafter, the Special Land Acquisition Officer took up the work of hearing the proceedings of acquisition on hand, summoning all the interested persons. As regards the lands of the present claimants was concerned, land acquisition case no.16 of 1973 was initiated and heard by the Special Land Acquisition Officer.The Special Land Acquisition Officer, after hearing all the interested in the lands, declared his award on 12.3.1983 awarding the compensation at the rate of Rs.0.20 per sq. mtr. The lands were Jarayat lands. Some of the lands were new tenure while some were old tenure lands. The claimants were demanding compensation at the rate of Rs.10.00 per sq. mtr. Therefore, the claimants then decided to prefer references and, therefore, at the instance of the original claimants, the Special Land Acquisition Officer made references of these 8 cases to the Reference Court wherein the reference court decided the said references on 20.1.1986 and partly allowed the references and awarded additional compensation to the claimants at the rate of Rs.5.00 per sq. mtrs. over and above the amounts awarded by the Special Land Acquisition Officer together with interest at the rate of 9 per cent per annum from the date of possession till realization with proportionate costs. In the said award, the reference court has not granted solatium at the rate of 30 per cent to the claimants; not granted 12 per cent increase and also not granted 15 per cent interest under proviso to amended section 28 of the Land Acquisition Act. The facts relating to first appeal no. 349 and 350 of 1987 in respect of village Sarkhej are as under: The Deputy Engineer, Vasna Irrigation Research Sub Division, during his study found that Fatehwadi Feeder Canal for the purpose of irrigating the agricultural lands and thereby to be in the tune with grow more food policy was necessary and, therefore, he made out a case for the scheme and under that scheme, he recommended to acquire necessary lands. The Government, after carefully studying the report of the Engineer, approved the same and thereafter, acquisition proceedings were initiated. The claimants in these two appeals were having their agricultural lands bearing block no. 594 and 593. Their lands were acquired soon after the scheme was approved and it was decided to acquire the lands and notification under sec.4 of the Land Acquisition was issued and published in the Government Gazette on 25.10.1979. Thereafter, notification under section 6 was issued and published in the Government Gazette on 27.5.1982. Thereafter, the Special Land Acquisition Officer took the proceedings of acquisition on hand and summoned all interested in the lands and after hearing the claimants, he awarded the compensation at the rate of Rs.1.15 ps. per sq. mtr. by his award dated 6.9.1983. Since the claimants were not satisfied with the award made by the Special Land Acquisition Officer, at their instance, the Special Land Acquisition Officer made the reference before the Reference Court under section 18 of the Act wherein the reference court awarded additional compensation of Rs.12.00 per square meter vide its award dated 30.10.1985 with interest thereon at the rate of 9 per cent per annum. Under its award, the reference court has not granted solatium at the rate of 30 per cent to the claimants; not granted 12 per cent increase and also not granted 15 per cent interest under proviso to amended section 28 of the Land Acquisition Act. Brief facts of the first appeal no. 2301 to 2326 of 1987 relating to village Vithalpur are as under: The lands in question were acquired for the public purpose for Suraj - Dahesar-Odhav-Solgaon-Mandal Drain. All these lands are situated near to each other at Village Vithalpur in Viramgam Taluka. The claimants have claimed compensation at the rate of Rs.5.00 per sq. mtrs. The Land Acquisition Officer has complied with all the requirements prescribed under the law after initiating the acquisition proceedings against the claimants. He has given notices to the claimants and interested persons and called upon them by serving notices. The Land Acquisition Officer has awarded the compensation at the rate of Rs.00.35 ps. per sq. mtr. by his award dated 9.2.1984. Notification under section 4 of the Act was published on 3.6.1982. Notification under section 6 of the Act was published on 19.5.1983. Since the claimants were not satisfied with the amount of compensation awarded by the Land Acquisition Officer, the Land Acquisition Officer made reference before the Reference Court under sec. 18 of the Act wherein the reference court, under its award dated 12.4.1985, awarded additional compensation to the claimants at the rate of Rs.4.40 ps. with interest at the rate of 6 per cent per annum. On the amount of additional compensation, solatium at the rate of 30 per cent has been granted and 9 per cent interest from the date of taking over the possession was also granted till the amount is paid or deposited. However, the reference court has not granted 12 per cent increase in the market price and 15 per cent interest. Learned advocate Mr.Nitin Amin appearing for the appellants original claimants has raised contention before this court in light of the Amendment made in the Land Acquisition Act, 1894 by Act 68 of 1984. He has submitted that because of the said amendment made in the Act of 1894, the claimants are entitled to certain statutory legal benefits but the same have been denied by the reference court. He has submitted that according to the said amendment made by Act 68 of 1984, the claimants are entitled for 30 per cent solatium on the total amount of compensation under section 23(2) of the Land Acquisition Act. He has also submitted that the claimants are also entitled to have 12 per cent increase on the market price under section 23(1-A) of the Act and as per the proviso to section 28 of the Act, after the expiry of one year period, the claimants are entitled to 15 per cent interest upon the total amount of compensation including the amount of solatium. He has also submitted that the amendment made in the Statute is having effect from 24th September, 1984 but under the amended section 30, transitional provisions have been made by the statutory amendment and as per section 30(2) of the Act, provisions of sub section (2) of section 23 and section 28 of the Principal Act as amended by clause (b) of section 15 and section 18 of this Act respectively 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 which is the date of introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People and before the commencement of this Act. He has submitted that two dates are relevant. One is 30th April,1982 and the other is 24th September, 1984. He has submitted that in view of this amendment, in these appeals, the land acquisition officer has passed the award on 4th March,1983, 12th March, 1983, 6th September, 1983 and 9th February, 1984, meaning thereby, subsequent to 30th April, 1982 and, therefore, in all these cases, the claimants are entitled to the benefits of the amended provisions of the Act. He has also submitted that the reference court has decided the said references in December, 1985, 20th January, 1986 and 30th October, 1985 and 12th April, 1985, meaning thereby, subsequent to the implementation of the amended provisions of the Land Acquisition Act and, therefore, according to him, the claimants in these appeals ought to have been given such benefits by the reference court. He has relied upon the decision of the apex court in case of Union of India versus Raghuvir Singh reported in AIR 1989 SC 1933 and the recent decision of the apex court in case of Sundar versus Union of India reported in 2001(3) GLH 446. On the other hand, learned Government Pleader Mr. A.D. Oza appearing for the respondents has submitted that the reference court has not granted or awarded any solatium and other statutory benefits to the claimants and, therefore, this court cannot grant such benefits which have not been granted by the reference court. He has also submitted that even considering the memo of appeal of each case, the claimants have not made any grievance about non grant of such benefits. He has, however, not disputed about the legal position of the amended provisions of the Act coming into force from 24th September, 1984 having retrospective effect of transitional period from 30th April, 1982 but he disputes and raises objection about the entitlement of the appellants for the said benefits. We have considered the submissions made by the learned advocates for the respective parties. We have also considered the relevant provisions of the amendment made in the Land Acquisition Act, 1894 by Act 68 of 1984. In one group of first appeals relating to village Vithalpur, the reference court has, under its award dated 12.4.1985, awarded additional compensation to the claimants at the rate of Rs.4.40 ps. with interest at the rate of 6 per cent per annum. On the amount of additional compensation, solatium at the rate of 30 per cent has been granted and 9 per cent interest from the date of taking over the possession was also granted till the amount is paid or deposited. However, the reference court has not granted 12 per cent increase in the market price and 15 per cent interest. Except that group, in rest of the groups, the reference court has not granted solatium at the rate of 30 per cent to the claimants; not granted 12 per cent increase and also not granted 15 per cent interest under proviso to amended section 28 of the Land Acquisition Act. Therefore, keeping in view this factual aspect of the matter, we have examined the legal question as to whether the appellants are entitled for such statutory benefits as per the amendment made in the Act of 1894 by way of amendment by Act 68 of 1984 or not. From this angle, we have examined each award made by the reference court. Learned advocate Mr. Amin has no objection or grievance in respect of the market price fixed by the reference court in respect of the land in question acquired from the claimants. Therefore, we have not to go into that aspect of the matter. Therefore, we have to examine the legal question as regards entitlement of the appellants for such statutory benefits as per the amended provisions of the Act. For that, relevant amendment made in the Land Acquisition Act is required to be considered. Section 30(2) of the Land Acquisition Act, is reproduced as under: "30(2) The provisions of sub section (2) of section 23 and section 28 of the Principal Act, as amended by clause (b) of section 15 and section 18 of this Act, respectively, 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 made 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 the Act." Section 23(2) of the Act is reproduced as under: "23(2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of acquisition." Section 23 (1-A) of the Act with Explanation thereto is reproduced as under: "23(1-A) 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 twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under sec.4, sub section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation.- In computing the period referred to in this sub section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded." Section 28 of the Act is reproduced as under: "28. Collector may be directed to pay interest on excess compensation.- If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court: Provided that the award of the court may also direct that where such excess or any part thereof is paid into court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry." In case of Union of India and another v. Raghubir Singh (dead) by LRs etc. reported in AIR 1989 SC 1933, the apex court has observed as under in para 31 and 32 of the judgment: " There can be no doubt that the benefit of the enhanced solatium is intended by S. 30(2) of amendment Act in respect of an award made by the Collector between 30 April 1982 and 24 Sept.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 Sept. 1984, even though it be upon reference from an award made before 30 April, 1982. The dispute is about the meaning of the words 'or to any order passed by the High Court or Supreme Court an appeal against any such award' used in s. 30(2)? Are they limited 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 appeals disposed of 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. It is significant to note that the 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 words 'any such award' are intended to have deeper significance and in the context in which those words 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 benefit of the enhanced solatium to cases where the award by the collector or by the court is made between 30 April, 1982 and 24 Sept. 1984 or to appeals against such awards decided by the High Court and the Supreme Court where the decisions of the High Court or the Supreme Court are rendered before 24th 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 Sept. 1984. It cannot be said that the words any such award only mean the award made by the Collector or Court, and carry no greater limiting sense. No such words of description by way of identifying the appellate order of the High Court or of the Supreme Court were necessary. Plainly having regard to the existing hierarchical structure of forum contemplated in the parent Act those appellate orders could only be orders arising in appeal against the award of the Collector or of the Court. In para 33 of the said judgment, it has been observed by the apex court as under: "If Parliament had intended that the benefits of enhanced solatium should be extended to all pending proceedings it would have said so in clear language. On the contrary, the terms in which S. 30(2) is couched indicate a limited extension of the benefit. The amendment Act has not been made generally retrospective with effect from any particular date, and such retrospectivity as appears is restricted to certain areas covered by the parent Act and must be discovered from the specific terms of the provisions concerned. Similarly it was never intended to define the scope of the enhanced solatium on the mere accident of disposal of a case in appeal on a certain date." Relevant observations made by the apex court in case of Sunder versus Union of India, reported in 2001 (3) GLH 446 are reproduced as under: "24. The proviso to section 34 makes the position further clear. The proviso says that 'if such compensation, over is not paid within one year from the date of taking possession of the land, interest shall stand escalated to 15 per cent per annum from the date of expiry of the said period of one year 'on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.' It is inconceivable that the solatium amount would attract only the escalated rate of interest from the expiry of one year and that there would be no interest on solatium during the