IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 865 of 2000 to FIRST APPEAL No 900 of 2000 with FIRST APPEAL No 6426 to 6458 of 1999 with CROSS-OBJECTIONS No 57, 58 and 59 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE M.S.SHAH Sd/- and HON'BLE MR.JUSTICE D.H.WAGHELA Sd/- ============================================================ 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 : NO 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? 1 & 2 YES; 3 to 5 NO -------------------------------------------------------------- STATE OF GUJARAT Versus ARVINDBHAI VIRMABHAI PATEL -------------------------------------------------------------- Appearance: First Appeals No. 865 to 888 of 2000 MR ARUN D OZA GOVERNMENT PLEADER for Appellant MR RN SHAH with MR MUNSHI for Respondents First Appeals No. 889 to 900 of 2000 MR AY KOGJE ASST GOVT PLEADER for Appellant MR RN SHAH with MR MUNSHI for Respondents -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.S.SHAH and HON'BLE MR.JUSTICE D.H.WAGHELA Date of decision: 09/12/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE M.S.SHAH) These appeals of the State Government, under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") read with Section 96 of the Code of Civil Procedure, 1908, are directed against the judgment and award dated 12.7.1999 of the learned Assistant Judge of Sabarkantha at Himatnagar, partly allowing Land Reference Cases No.906 to 941 of 1992, being a group of 36 references. 2. The lands in question are situate in the outskirts of village Munshiwada, taluka Modasa in Sabarkantha district. The notification under Section 4 of the Act was published on 29.5.1980, the notification under Section 6 of the Act was published on 2.8.1981 and the Land Acquisition Officer declared his award on 19.3.1982 fixing the price of the lands under acquisition @ Rs.6,000/- per Acre for irrigated land, @ Rs.4,500/- per Acre for non-irrigated land and @ Rs.40/- per Acre for waste land. In terms of the Reference Applications, the rate awarded by the Land Acquisition Officer worked out to Rs.150/- per Are for irrigated land, Rs.112.50 per Are for non-irrigated land and Re.1/- per Are for waste land. The references under Section 18 of the Act were made in the year 1992 pursuant to the order passed by this Court on 28.8.1989 in Special Civil Application No.2086 of 1988. Upon the references being made, the State Government pressed the plea of references having been barred by the law of limitation and also agitated the ground that the award made by the Land Acquisition Officer was a consent award. The Reference Court negatived both the contentions and awarded additional amount of compensation @ Rs.340/- per Are for irrigated land, Rs.355/- per Are for non-irrigated land and Rs.49/per Are for waste land to the applicants of Reference Cases No.906 to 936 of 1992. The Reference Court also awarded additional compensation @ 20% on the amount already paid for the superstructure in Land Reference Cases No.937 to 941 of 1992. In this group of appeals, we are not concerned with the additional compensation for superstructure. Over and above the amount of additional compensation, the Reference Court also awarded 30% solatium and interest @ 9% per annum for the first year from the date of taking over possession and thereafter @ 15% per annum till realization of the additional amount of compensation. Aggrieved by the aforesaid judgment and award, the State Government has filed this group of appeals. SUBMISSIONS ON BEHALF OF STATE GOVERNMENT. 3. At the hearing of the appeals, Mr.Arun D. Oza, learned Government Pleader with Mr.A.Y.Kogje, learned Assistant Government Pleader, made the following submissions:- (i) Pursuant to the notifications under Sections 4 and 6 of the Act published on 29.5.1980 and 2.8.1981 respectively, the Land Acquisition Officer had made the award on 19.3.1982. Apart from the compensation paid earlier at the time of taking possession, compensation was also paid to the claimants on 19th and 20th March, 1982 when the award was made. The claimants did not make any application for reference till February, 1989 and, therefore, the applications for reference made in February 1989 were all grossly time-barred. The Reference Court erroneously turned down the plea of limitation. (ii) The award made by the learned Land Acquisition Officer on 19.3.1982 was a consent award. The representatives of the landholders of village Munshiwada and others were consulted and they had agreed to accept the compensation @ Rs.6,000/- per Acre for irrigated land and Rs.4,500/- per Acre for non-irrigated land, i.e. Rs.150/- per Are and Rs.112.50 per Are respectively. Since the award was made by the learned Land Acquisition Officer with the consent of the landholders, the references were not maintainable. The Reference Court has erred in not accepting the said contention of the authorities. (iii) The Reference Court has also erred in determining the market value of the lands @ Rs.400/- per Are though no comparable sale instances or awards for acquisition of land in 1980 were cited by the claimants. (iv) In any view of the matter, the judgment and award of the Reference Court suffers from apparent arithmetical mistake inasmuch as although the Land Acquisition Officer had awarded compensation @ Rs.6000/- per Acre (Rs.150/per Are) for irrigated land and @ Rs.4500/- per Acre (Rs.112.50 per Are) for non-irrigated land, the Reference Court has, while computing additional compensation, deducted only Rs.60/- and Rs.45/- per Are respectively as the market value determined by the Land Acquisition Officer. This has resulted into incorrect computation and, although the application for correcting such apparent arithmetical mistake was made by the Land Acquisition Officer before the Reference Court on 22.10.1999, being Misc. Civil Application No.109 of 1999 and cognate applications, no orders have been passed thereon. Therefore, the said mistake is required to be corrected by this Court in appeal. The learned Government Pleader and the learned Assistant Government Pleader have, therefore, submitted that the appeals filed by the Government deserve to be allowed and the appeals and cross-objections filed by the claimants deserve to be dismissed. SUBMISSIONS ON BEHALF OF CLAIMANTS: 4. On the other hand, Mr.R.N.Shah and Mr.Munshi, learned advocates for the claimants (also appearing for the respondents in the Government appeals) have submitted that the Government appeals deserve to be dismissed and the appeals/cross-objections filed by the claimants deserve to be allowed. 4.1 On the question of limitation, the learned counsel for the claimants have supported the judgment of the Reference Court and submitted that since a Division Bench of this Court presided over by the then Hon'ble Chief Justice had, by judicial order dated 28.8.1989 in Special Civil Application No.2086 of 1988 and connected matters, directed the authorities to make references under Section 18 of the Act, the authorities, including the Land Acquisition Officer, were estopped from raising the plea of limitation. 4.2 The award dated 19.3.1982 of the Land Acquisition Officer was not a consent award. The Government Resolution dated 20.10.1989 was relied upon by the authorities in support of the said contention but that Resolution was not exhibited before the Reference Court. In any view of the matter, the said Resolution refers to the consent given by a few individuals and not by all of the landholders. Moreover, the said Resolution refers to the consent given by certain persons claiming to be representatives of the landholders not only for the lands in village Munshiwada (with which this group of appeals is concerned) but also for the lands in village Sayra. The Land Acquisition Officer had awarded compensation Rs.5000/- per Acre for non-irrigated land and Rs.7,000/per Acre for irrigated land, i.e. @ Rs.125/per Are for non-irrigated land and Rs.175/- per Are for irrigated land. The owners of the lands in village Sayra, which were acquired, got references made under Section 18 of the Act and, by the judgment and award dated 31.7.1983, the learned Assistant Judge of Sabarkantha at Himatnagar assessed the market value of the lands in village Sayra at Rs.500/- per Are instead of Rs.175/- per Are. If the award for the lands in village Sayra as well as the award for the lands in village Munshiwada were passed under the aforesaid Resolution dated 28.10.1989, the award for the lands in Sayra village would also have been a consent award, but no such plea was raised in the references or appeals in respect of the lands of village Sayra. 4.3 The market value determined by the Reference Court @ Rs.400/- per Are was inadequate and the amount was required to be substantially enhanced. 4.4 Even if any arithmetical mistake was found in the award of the Reference Court, no interference on that count was required to be made with the award of the Reference Court. The appropriate remedy would be for the Government to pursue the applications, if any, pending before the Reference Court. Contention (i): Plea of limitation. 5. Taking up the first contention regarding limitation urged by the learned Government Pleader, it may appear at the first blush that since the Land Acquisition Officer had made the award on 19.3.1982 and the reference applications were made by the claimants in February 1989, there was a delay of more than six years in filing the reference applications under Section 18 of the Act. Section 18 of the Act prescribes as under the period of limitation for making reference applications: "S.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 the 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: (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 Sec.12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire." 6. It is, of course, not the case of the authorities that the authorities had sent notices under Section 12 (2) of the Act to the claimants, but the learned Government Pleader submitted that since the claimants had accepted the amounts on 19.3.1982 and the payments were made in pursuance of the award dated 19.3.1982, the claimants must be attributed with the knowledge of the award and, therefore, the reference applications were required to be made within six weeks from the date of the award, i.e. in the first week of May, 1982. 7. In support of the above plea, Mr.Ambadan Ashiya, talati-cum-mantri of village Munshiwada, was examined before the Reference Court. The then talati-cum-mantri for the group gram panchayat for villages Volva, Munshiwada and Dariapur stated that he had identified the claimants before the Land Acquisition Officer at the time of payment of compensation to them on 19th and 20th March, 1982 and that they had put their signature/thumb mark acknowledging receipt of the amounts of compensation. In cross-examination, this witness stated that he was not aware as to what award was passed by the Land Acquisition Officer for acquisition of lands in village Munshiwada and as to when the Land Acquisition Officer made such award. He was also not aware as to whether the payments made on 19th and 20th March, 1982 were pursuant to any interim award or the final award. 8. On behalf of the claimants, Shri Narsinhbhai and Jayantibhai Bhikabhai Patel were examined as witnesses at Exh.13 and 122 in Reference Case No.906 of 1992 which was treated as the lead reference. It was deposed by Shri Jayantibhai Bhikabhai Patel (Exh.122) that the owners of the lands which were acquired from village Munshiwada were not given any notice under Section 12 (2) of the Act. He further stated that the land owners were neither informed about the award having been made nor a copy of the award nor summary thereof was given to any claimants. The claimants had neither given any consent nor entered into any agreement. The payments in question made to the claimants were by way of interim compensation @ 75%, but the claimants were not informed about the rate at which compensation was determined. It was for the first time in February, 1989 that the claimants came to know about the award having been made by the Land Acquisition Officer. Hence, the claimants made applications under Section 18 of the Act and thereafter the Deputy Collector made the references to the Court in 1992. 9. As far as the claimants' case that they were not served with notice under Section 12 (2) of the Act is concerned, there is no dispute about that factual aspect. Therefore, the question of applying the proviso (b) to sub-section (2) of Section 18 does not arise. The only question is whether the authorities have shown that the claimants were present or were represented before the Land Acquisition Officer at the time when he made the award. The award is said to have been made on 19.3.1982. The claimants do not dispute having received the amounts of compensation on 19th and 20th March, 1982. However, they pleaded ignorance of the factum of the award having been made and the payments having been made pursuant to the final award. Ordinarily, one would attribute to a claimant receiving payment of compensation for acquisition of his land, knowledge of the award made by the Land Acquisition Officer, but in the facts of the present case, it transpires that at the time of taking possession also, the Land Acquisition Officer had made payment of 25% of the compensation and on 19th and 20th March, 1982 another 75% of the compensation was paid. It is, therefore, possible to accept the claimants' version that interim compensation was paid by the authorities at the time of taking over possession of the land, and, similarly, another interim compensation was paid to them on 19th and 20th March, 1982. Since two views are possible and the Reference Court which had the benefit of observing the demeanour of the witnesses has held that the claimants were not aware of the final award having been made by the Land Acquisition Officer on 19th and 20th March, 1982 when they accepted payments, we are not inclined to disturb that finding of the Reference Court. 10. In view of the above discussion, the authorities have not succeeded in satisfying the ingredients of either clause (b) or clause (a) of the proviso to sub-section (2) of Section 18 of the Act. 11. The above aspects are also required to be appreciated in the context of the petitions which were filed by the claimants in the year 1988 for the following reliefs:- "The Hon'ble Court be pleased to issue a writ of mandamus.....directing the respondents, their agents and servants to allot agricultural lands as per the policy laid down by the Government forthwith; The Hon'ble Court be pleased to issue a writ of mandamus.....directing the respondents to make a reference under Section 18 of the Land Acquisition Act and for getting enhanced compensation under the provisions of the Act." 11.1 In the memo of the above petitions, the claimants had heavily relied upon the Government Resolution dated 11.6.1979 providing for a scheme for rehabilitation and resettlement of the persons affected by acquisition of lands for Majum Irrigation Scheme covering the lands in villages Munshiwada, Sayra and other villages. The petitioners' grievance was that, under the aforesaid scheme, some of the landholders were given lands but the other landholders were not given such alternative land and, therefore, the authorities were guilty of discriminatory treatment. This appeared to be the major grievance in the aforesaid petitions and there was also additional prayer that the compensation awarded to the petitioners was inadequate and, therefore, the authorities be directed to make a reference for enhancement of the compensation amount. 11.2 In response to a query from the Court, the learned Government Pleader stated that no affidavit-in-reply was filed in the said petition but, when the petition reached hearing, the Division Bench of this Court (Coram: Hon'ble P.K.Gokulakrishnan, CJ and Hon'ble R.A.Mehta, J.) passed the following order on 28.8.1989:- " The learned counsel for the petitioners in all the petitions states that the petitioners are interested only in a reference under Section 18 of the Land Acquisition Act and such contentions which can be raised in such a reference. On behalf of the respondents, Mr.G.D.Bhatt, the learned Assistant Government Pleader, states that the respondents are agreeable to make the reference under Section 18 of the Land Acquisition Act if the petitioners move the Land Acquisition Officer for such reference within 15 days from today. In view of these rival statements, the petitioners are directed to make applications for reference within a period of 15 days from today to the Land Acquisition Officer and the Land Acquisition Officer is directed to make references to the appropriate court at the earliest. Letter of the Additional Collector (Irrigation) dated 23rd August, 1989 is taken on record. It is made clear that it would be open to the petitioners to raise all contentions which are available to them under Section 18 of the Act and no other contentions. In view of these directions, the learned counsel for the petitioners withdraws these petitions. These petitions are dismissed as withdrawn. Notices discharged. Sd/- P.R.Gokulakrishnan, C.J. 28.8.89. Sd/- R.A.Mehta, J." 11.3 It is thus clear that at the hearing before this Court, the authorities did not raise any plea about the limitation for making reference applications having expired. On the contrary, it was specifically stated on behalf of the authorities (the respondents in those petitions) that they were agreeable to making references under Section 18 of the Act if the petitioners move the Land Acquisition Officer for such references within 15 days. The case of the claimants is that since they had already made the applications in February 1989, it was not necessary to make fresh applications after 28.8.1989 and that is why the Land Acquisition Officer did make references to the District Court, Sabarkantha. 12. Looking to the aforesaid stand of the State Government before this Court in the above petitions wherein the petitioners had initially prayed for grant of alternative land, and since the Government agreed to make references as indicated above, the Government is estopped from raising the plea of limitation. That apart, in view of the earlier discussion as regards inability of the Government to satisfy the Court about applicability of either of the clauses in the proviso to sub-section (2) of Section 12 of the Act, we do not accept the plea that the applications for references were made after the period of limitation had expired. Contention (ii): Was the LAO's Award a consent award? 13. Coming to the second contention that the award made by the Land Acquisition Officer on 19.3.1982 was a consent award, the only material sought to be relied upon by the learned Government Pleader is the Resolution dated 20.8.1981 issued by the Irrigation Department, which states that a meeting was held wherein representatives of Sabarkantha District Panchayat, Modasa Taluka Panchayat, Sarpanchs of Volva group gram panchayats, Sarpanchs of village Sayra and Members of the Advisory Committee for Rehabilitation were present and that certain decisions were taken at the said meeting. On perusal of the record, we do not find that a copy of the said Resolution dated 20.8.1981 was exhibited. The resolution refers to some consensus amongst one representative of the District Panchayat, one representative of the Taluka Panchayat, Sarpanchs of two villages and seven persons stated to be members of Majum Irrigation Scheme Rehabilitation Advisory Committee and two residents of Munshiwada, fixing compensation for acquisition of lands as per the following formula:- Rate of compensation Group A. Group B. other villages Non-irrigated Rs.4,500/- Rs.3,800/- land per acre per acre Irrigated Rs.6,000/- Rs.5,000/- land per acre acre Waste land Rs.100/- per acre (Rs.40/- per Are) The schedule to the said Resolution specifies Munshiwada as the only village falling in Group A, and 11 other villages, including villages Sayra and Volva, as falling in Group B. 14. When the aforesaid Resolution was relied upon before the Reference Court, the Reference Court held that the consent given by the two residents of the village Munshiwada cannot be applied to the other lands. The learned Government Pleader fairly stated that apart from the two residents of village Munshiwada, the claimants in this group of appeals had not given any such consent. Moreover, if the Resolution were intended to embody the consensus for determining the rate of compensation for all the lands acquired for Majum Irrigation Project, the lands in village Sayra were also covered by the said Resolution. But, when the owners of the lands from village Sayra had made reference applications, the authorities did not raise the plea that the award passed by the Land Acquisition Officer for the lands in village Sayra was a consent award. The judgment and award dated 31st July, 1987 passed by the learned Assistant Judge, Sabarkantha at Himatnagar in Land Reference Case No.42 of 1985 has been strongly relied upon by the claimants and on perusal of the said judgment we find that no such plea about the consent award was raised on behalf of the authorities. It is true that the notification under Section 4 of the Act for acquisition of the lands in village Sayra was published on 20.10.1983, but it is necessary to note that possession of the said lands was already taken on 17.3.1983 and we find that the lands in village Sayra as well as the lands in village Munshiwada were acquired for the purpose of Majum Irrigation Scheme. In the aforesaid background, we are not in a position to accept the plea of the learned Government Pleader and the learned Assistant Government Pleader that the award made by the Land Acquisition Officer on 19.3.1982 was a consent award. Contention (iii): Rate of Compensation. 15. Coming to the third contention urged by the Government Pleader about the amount determined by the Reference Court as the market value of the lands in question, we find that there is some substance in the submissions made on behalf of the Government that, when it came to consideration of the question whether the award in question was a consent award, the claimants submitted that since the Government Resolution was not exhibited and otherwise also, the Government Resolution was not binding on the claimants, the classification of the lands as set out in the Schedule to the Resolution cannot be permitted to be relied upon by the claimants. Admittedly both the villages are on banks of the same river - the village Sayra is on one side of river Majum and the village Munshiwada is on the other bank of river Majum. 16. Apart from reference to the aforesaid Resolution and the oral evidence of the talati-cum-mantri referring to the aforesaid classification of lands in village Munshiwada and Sayra as "A" category and "B" category lands, no evidence is led by the claimants to show that the lands in village Munshiwada are more fertile than those in village Sayra. We are, therefore, not inclined to accept the finding given by the Reference Court that the lands in village Munshiwada have to be treated as having greater market value than the lands in village Sayra. In this view of the matter, the assessment made