FA/897/2005 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 897 of 2005 To FIRST APPEAL No. 900 of 2005 With CROSS OBJECTION No. 41 of 2006 In FIRST APPEAL No. 897 of 2005 To CROSS OBJECTION No. 44 of 2006 In FIRST APPEAL No. 900 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= SPL.LAQ OFFICER & 1 - Appellant(s) Versus THAKOR SHIVAJI MOTIJI - Defendant(s) ========================================================= Appearance : MR DASHRATH CHAUHAN, AGP for Appellant(s) : 1 - 2. MR AJ PATEL for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 02/09/2008 ORAL JUDGMENT FA/897/2005 2/9 JUDGMENT 1. Learned AGP Mr.Dashrath Chauhan requests that respondent no.1/2 in First Appeal No.899 of 2005 may be deleted since the said respondent has expired and her legal heirs are already on record. Request is granted. Name of respondent no.1/2 i.e. Thakore Ujamben Thakaji in First Appeal No.899 of 2005 shall stand deleted. 2. This group of First Appeals is arising from the common judgment and award dated 6/2/2001 passed by the learned Extra Assistant Judge, Mehsana in Land Acquisition Reference Nos.1968 of 1995 to 1980 of 1995. Since the appeals involve the same facts and also the same question of law, they are heard together and now they are being disposed of by this common judgment. 3. The appellants are the original respondents of the aforesaid Reference Cases. They have filed these appeals under Section 54 of the Land Acquisition Act, 1894 [hereinafter referred to as the “Act”] to challenge the aforesaid common judgment and award. The facts giving rise to these proceedings in short can be stated as under. 3.1) The respondents were the owners of the agricultural lands situated at village Chhabaliya in Kheralu Taluka, District FA/897/2005 3/9 JUDGMENT Mehsana. These lands were needed for constructing Dharoi Project. Hence, decision to initiate proceedings under the Act was taken. In pursuance of the same, Notification under Section 4 (1) of the Act was published in the Government Gazette on 16/2/1993. Thereafter declaration under Section 6 of the Act was published on 10/1/1994. Subsequently, after complying with all the formalities the Land Acquisition Officer made award on 16/10/1994. He determined the market value of the lands acquired at Rs.1.20 paise per sq. mtr. Since the respondents herein were dissatisfied with the compensation awarded to them by the Land Acquisition Officer, they submitted an application for making reference to the Collector under Section 18 of the Act. Accordingly, the reference was made and the aforesaid Reference Cases were listed before the learned Assistant Judge, Mehsana for trial. 3.2) Before the Reference Court, the respondents herein contended that the market value determined by the Land Acquisition Officer was hopelessly inadequate and it was required to be enhanced. According to them, the rate of the land in question ought to have been fixed at Rs.20/- per sq. mtr. The Reference Cases were opposed by the appellants herein by filing written statement. According to them, the compensation determined by the Land Acquisition Officer was just and proper and it did not require any enhancement. They contended that FA/897/2005 4/9 JUDGMENT considering the nature of the lands as well as lack of basic facilities in that area, the market value determined by the Land Acquisition Officer was adequate. They, therefore, prayed that the Reference Cases be dismissed. 4. The Reference Court, on the basis of the evidence led before it, oral as well as documentary, arrived at a conclusion that the compensation awarded by the Land Acquisition Officer was much on lower side and it was required to be enhanced. In the opinion of the Reference Court, the market price of the land could be fixed at the rate of Rs.20/- per sq. mtr. Thus, the Reference Court awarded additional compensation of Rs.18.80 paise per sq. mtr., together with solatium and interest on the at the rate of 9% per annum from the date of taking the possession or from the date of issuing notification under Section 4 of the said Act whichever is earlier for the first five years and thereafter, at the rate of 15% per annum till realization. The Reference Court also directed that the respondents shall pay an additional amount of compensation at the rate of 12% on additional amount of compensation awarded to the claimants according to the provisions of Section 23(1-A) of the Act as well as solatium at the rate of 30% on the additional amount of compensation under Section 23 (2) of the Act. Since the direction of the Court with regard to interest on additional amount and the solatium has hurt the respondents-appellants FA/897/2005 5/9 JUDGMENT herein, they have preferred cross objections numbered above. 5. Mr.Dashrath Chauhan, learned Assistant Government Pleader has submitted that reliance placed by the Reference Court on the documentary as well as oral evidence is not proper. According to him the Reference Court ought to have taken into consideration the other relevant facts to arrive at just and proper market value. He has submitted that reliance has been placed by the Reference Court on the Court's award which is quite old and it is altogether for different purpose. 6. The learned advocate for the parties have also taken me through the evidence and relevant documents. It is an admitted position that no sale instances have been produced by the either side before the Reference Court. It is also not disputed that prior to the present acquisition, several acquisition had taken place, either for the same purpose i.e., constructing Dharoi Canal Project or for some different purpose. The oral evidence comprises evidence of Pradhanji Viraji Thakor, whose evidence is at Exh.42. He is the original claimant of applicant of Reference Case No.1980 of 1995. He has stated that he has seen all the lands belonging to other claimants having equal and good potential value. He has stated that 608 and 616 sq. mt. land out of block survey no.252/1 and 253/1 is acquired by other side for public purpose i.e. Dharoi Canal Project, permanently. On the FA/897/2005 6/9 JUDGMENT point of potentiality, it is stated that lands involved in the acquisition proceedings having irrigation facilities. He is taking three crops in a year. He is growing Raida, Variali, Jowar, Bajari etc. He is earning Rs.5,000/- to 6,000/- per year. To support the oral assertion, the claimants have produced revenue abstracts at Exh.10 to 40. It is also stated that the lands of the previous award and land of present reference cases are adjoining to each other. Looking to the previous award whereby this court awarded Rs.18/- per sq. mtr. it is also evident that prices of the lands going up and up day by day. The village in question is having population of 6000 people and also having facilities of water, light, high school, dispensary etc. Thus, on merits it appears that there is no scope for this Court to interfere with the award made by the Reference Court. 7. In the present reference case, the Trial Court has relied upon the previous judgment Exh.41 i.e. of the same village. The same is confirmed by this Court (Coram:Akshay H. Mehta, J) vide order dated 23/11/2006 passed in First Appeal No.2778 of 2000 and others with cross objections. Learned advocate for the respondents has relied upon the said decision of this Court dated 23/11/2006. 8. This brings me to the cross objections filed by the respondents under Order 41 Rule 22 of the Civil Procedure Code. They have FA/897/2005 7/9 JUDGMENT challenged the award to the extent it denies payment of interest on solatium under Section 23 (2) of the Act as well as additional amount payable under Section 23 (1A) of the Act. He submitted that with the decision rendered by the Constitutional Bench of the Apex Court in the case of Sunder v. Union of India reported in 2001 AIR SCW pg 3692, the position of law has been made clear and it is held by the Apex Court that interest on solatium as well as additional amount awardable under Section 23 (1A) of the Act has to be paid by the State. Mr. Shah learned Government Pleader is not in a position to controvert this position of law. In the case of Sunder v. Union of India (supra) the Apex Court has laid down as under :- “23. In deciding the question as to what amount would bear interest under Section 34 of the Act a peep into Section 31 (1) of the Act would be advantageous. That sub-section says: “On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.” The remaining sub-sections in that provision only deal with the contingencies in which the Collector has to deposit the amount instead of paying it to the party concerned. It is the legal obligation of the Collector to pay “the compensation awarded by him” to the party entitled thereto. We make it clear that the compensation awarded would include not only the total sum arrived at as per sub-section (1) of Section 23 but the remaining sub-sections thereof as well. It is thus clear from Section 34 that the expression “awarded amount” would mean the amount of compensation worked out in accordance with the provisions contained in Section 23, including all the sub-sections thereof. 24. The proviso to Section 34 of the Act makes the FA/897/2005 8/9 JUDGMENT position further clear. The proviso says that “if such compensation” is not paid within one year from the date of taking possession of the land, interest shall stand escalated to 15% per annum from the date of expiry of the said period of one years” 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 preceding period. What the legislature intended was to make the aggregate amount under Section 23 of the Act to reach the hands of the person as and when the award is passed, at any rate as soon as he is deprived of the possession of his land. Any delay in making payment of the said sum should enable the party to have interest on the said sum until he receives the payment. Splitting up the compensation into different components for the purpose of payment of interest under Section 34 was not in the contemplation of the legislature when that Section was framed or enacted.” 8. Thus, the Apex Court in no uncertain terms stated that the claimant shall be entitled to receive interest on additional amount under Section (1A) as well as sub-section (2) of Section 23 of the Act, since these amounts also form part of the compensation to which the claimant is entitled. In view of the same, these cross objections are allowed in part and the applicants are directed to pay the interest on the additional amount under Section 23 (1A) of the Act as well as solatium under Section 23 (2) of the Act as per the direction of the Reference Court in respect of enhanced amount of compensation. 9. The result is the appeals are dismissed and cross objections of FA/897/2005 9/9 JUDGMENT the respondents are partly allowed with no order as to costs. 10.Record and Proceedings to be re-transmitted to the Reference Court forthwith. (K.S.JHAVERI, J.) (ila)