Widow Motibai Raghavji & 2 vs The State Of Gujarat Defendants

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2278 of 1987 To FIRST APPEAL No. 2300 of 1987 With FIRST APPEAL No. 376 of 1987 To FIRST APPEAL No. 399 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 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 ?

========================================================= WIDOW MOTIBAI RAGHAVJI & 2 - Appellant(s) Versus THE STATE OF GUJARAT - Defendant(s) ========================================================= Appearance :

MR PV HATHI for Appellant(s) in FA Nos.2278 to 2300 of 1998 and for the Respondents in FA Nos. 376 to 399 of 1987 MR SUNIT SHAH, GP in FA No.388/87 to FA 399/87 for the appellant & in FA Nos. 2290/87 to 2300/87 for the respondents; Mr. SATYAM CHAYYA, AGP in FA No.376/87 to FA 387/87 for the appellant & in FA Nos.

2278/87 to FA No. 2289/87 for the respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 29/03/2007 ORAL JUDGMENT

1. As both the group of First Appeals arise from the common judgment of the Reference Court, they are being considered by the common judgment.

2. It appears that after the proposal was moved for acquiring the land situated at village Lajai, Taluka Morbi, Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as 'the Act') was published on 18.12.1980. Thereafter, the Notification under Section 6 of the Act was published on 18.06.1981. The Land Acquisition Officer ultimately passed the Award and he fixed the market value of the Jirayat land @ Rs.80 per Are and for Bagayat land, it was fixed @ Rs.110 per Are. The original claimant being dissatisfied with the Award of the Land Acquisition Officer, preferred petition under Section 18 of the Act, which ultimately came to be referred to the Reference Court for adjudication and the Reference Court, after taking into consideration the evidence on record, at para 14, while dealing with the issue No.1, concluded as under:

“So it is therefore held that the amount of compensation awarded to the claimant is inadequate and the reasonable amount of compensation should be Rs. 30/- more per Are in respect of the land under irrigation as well as Jirayat land”

However, the learned Judge also considered the valuation of the Well and in the operative portion, it appears that the order is passed for awarding an additional amount of compensation @ Rs.30/- per Are, over and above the amount already awarded by the Land Acquisition Officer and he ordered 30% of solatium on the enhanced amount of compensation and also interest @ 9% per annum from the date of taking over of the possession for the first year and 15% interest per annum till the amount is deposited in the Court. For the valuation of the Well, 75% of the cost based on the report was also additionally granted as compensation. It is under these circumstances, the State has preferred First Appeal No.376 of 1987 to 399 of 1987, mainly for the reduction of the amount than the amount ordered by the Reference Court, whereas the original claimants have preferred First Appeal Nos.2278 of 1987 to First Appeal No.2300 of 1987 for enhancement of the amount of compensation.

3. Heard Mr. Sunit Shah, learned Govt. Pleader with Mr. Chhaya, learned AGP, for the State Government and Mr. P.V. Hathi with Mr. Sheth for the original claimants. Perused the R & P of the Reference Court.

4. The learned Government Pleader and the learned Asst. Government Pleader contended that the amount of compensation as ordered by the Reference Court by adding the valuation of 30% is more and deserves to be reduced.

5. Whereas Mr. Hathi, learned counsel appearing for the original claimants contended that the claimants would be entitled to receive more compensation than 30% in the operative portion. Mr.Hathi further contended that, as such, there is an apparent mistake in the operative portion of the Award of the Reference Court, inasmuch as in the reasoning, while dealing with issue No.1, the conclusion is recorded for additional amount of Rs.30/- per Are for irrigated and jirayat land, whereas in the operative portion, the Reference Court has mentioned 30% of the additional amount. He submitted that if 30% is counted, it would be less than Rs.30/- per Are and therefore, the compensation deserves to be awarded more than the amount ordered by the Reference Court, but in any case, would not be less than Rs.30/- per Are for both, bagayat as well as jirayat land.

6. It may be recorded that for the very acquisition in respect of the land situated at village Nana Rampar in the adjoining area, while considering the appeal for enhancement of the compensation, in the proceedings of First Appeal Nos.546 of 1988 to 565 of 1988, decided by this Court on 26.03.2007, on the aspects of reduction of the amount of compensation as well as on the aspects of enhancement of compensation, the matter was considered by this Court and in the said matter, at paras 3,4,5,6, & 7, it was observed by this Court as under:

“3. It may be recorded that against the very Judgment and Award of the Reference Court, First Appeal Nos. 362/86 to 381/86 were preferred by the State for reduction of the amount of compensation. However, vide order dated 17.03.1986, the Division Bench of this Court(Coram: B.K.Mehta & I.C.Bhatt, J.J., as they then were) has dismissed the appeals but at preliminary hearing ex-parte and the learned counsel appearing for both the sides are on agreement on the point that no proceedings were carried before the higher forum against the order of the Division Bench of dismissing the Appeals of the State.

4. Mr. Hathi, learned counsel appearing for the appellants made strenuous efforts to contend that the amount of compensation for Jirayat land and for Super Bagayat land, as fixed by the Reference Court, is less and in his submission, the Reference Court ought to have relied upon the highest amount of the sale instances, as available on record and he submitted that if highest price as mentioned in the sale instances are considered, the appellants would be entitled to additional amount of Rs.15 per Are for Jirayat Land and additional amount of Rs.30 per Are for Bagayat land. He therefore submitted that this Court may order for enhancement of the compensation.

5. Whereas, Mr.Chhaya, learned AGP contended inter alia that on the aspects of compensation and fixing the price is concerned, such stands covered by the decision of the Division Bench in First Appeal Nos. 362/86 to 381/86. He therefore submitted that the appellants would not be entitled to any additional amount for Jirayat or Bagayat land and he further contended that a different view may not be taken by this Court than the earlier view taken by the Division Bench of this Court.

6. The examination of the said contention shows that in the order of the Division Bench of this Court dated 17.03.1986 in First Appeal No.362/86 and allied matters, the contention on behalf of the State were considered on the aspects of the market value and the Division Bench of this Court, after considering the contentions of the State keeping in view the sale instances, the proximity of the area and the nearby village of the sale instances from the date of the notification, found it proper to reject the contention of the State, including that on the aspects of compensation awarded for valuation of Wells.

7. Under these circumstances, I find that it would not be a case for taking a different view than the view taken by the Division Bench after considering the contention of the State, may be for reduction of the amount of compensation. Hence, the contention raised on behalf of the appellants by Mr.Hathi for higher amount of valuation or the market value of the land cannot be accepted.”

Same would be the situation for dealing with the contention of the State for reduction of the amount of compensation and for enhancement of the amount of compensation. However, the additional aspect of the mistake committed by th Reference Court in the reasoning and the operation portion deserves consideration.

7. As observed earlier, in the discussion of issue No.1, the conclusion is recorded by the Reference Court that the reasonable amount of compensation should be Rs. 30/- more per Are in respect of land under irrigation as well as jirayat. Whereas, in the operative portion of the order, Rs.30/- per Are is mentioned, but there is also typographical sign of “%”. Such appears to be an apparent typographical error, because the word is typed as Rs. 30%, but it should be correctly typed as Rs.30/-. Therefore, Mr.Hathi is right in submitting that Rs.30/- per Are should have been there in the operative portion of the order of the Reference Court. It has been further submitted by Mr.Hathi that as such the decrees are drawn by the Reference Court treating the increase of the amount of compensation of Rs.30/- for Jarayat as well as for Bhagayat. In any event, there appears to be typographical error on the part of Reference Court and hence, it deserves to be observed and declared that the Reference Court had awarded Rs.30/- per Are, as the additional amount of compensation over and above the amount awarded by the Land Acquisition Officer at the rate of Rs.80/- for Jirayat land and Rs.110/- for Bhagayat/irrigated land.

8. As observed earlier and more particularly in view of the reasons recorded by this Court in its order dated 20.03.2007 for the confirmation of the amount of compensation for the land situated at Village Nana Ranpar and as the Village Lajai is situated in the adjacent area and no other distinguishing feature are brought to the notice of this Court, the contention of the Government Pleader and the Assistant Government Pleader for reduction of the amount of compensation as well as the contention raised on behalf of the original claimant by Mr.Hathi for enhancement of the amount of compensation cannot be accepted and hence, they are rejected.

9. Mr.Hathi, learned Counsel appearing for the original claimant in the appeal for enhancement contended that in view of the decision of this Court dated 26.3.2007 in First Appeal No.546 of 1988 and others, the claimant would be entitled to solatium on the total amount of compensation, including the compensations awarded by both the Land Acquisition Officer as well as by the Reference Court. Mr.Chhaya, learned AGP is not in a position to dispute the proposition to the applicability of the view by this Court in the above referred decision.

10. If the said contention is examined in light of the observations made by this Court in the above referred decision, it appears that while dealing with the said contention, at para 10, 11, and 12, it was observed as under:-

“10. It may be recorded that in the decision of the Division Bench of the Court in in First Appeal No. 467/86, at para 15, while dealing with the said contention on the aspects of solatium inter alia observed as under:

“15. However, there is another contention raised by learned counsel for the appellant, which we must uphold. The Reference Court, after having determined the market value and while passing the consequential order as to solatium and interest has through oversight, error or inadvertence, directed the solatium to be paid to the claimants at the rate of 30% only on the enhanced amount. In this context, we must agree with learned counsel for the appellant that it is possible that this may be misconstrued in drawing up of the decree and in the computation of the total amount payable to the claimants, inasmuch as solatium is attributable not merely to the amount enhanced by the Reference Court under section 18, but it would be payable on the entire amount of compensation i.e. the amount payable under the award under section 11 as also the amount payable under section 18. No doubt, this apprehension of learned counsel for the appellant is justified, looking to the language used in the final order passed in the common judgment. Inasmuch as there is no controversy on the principle involved, and no objection has been raised by learned counsel for the respondent-State, we clarify, hold and direct that the solatium at the rate of 30% will be paid on the entire amount of compensation (which would include the amount of compensation under the award under section 11.) However, we may further clarify that by the word `compensation', we mean compensation attributable to the value of the lands paid on the basis of the prices determined by us, together with compensation in respect of other items such as palas, pipelines, wells etc.”

11. Similar view deserves to be taken in the present case on the very reasons as recorded by the Division Bench in the said decision.

12. Therefore, it is hereby held and directed that solatium at the rate of 30% will be paid on the entire amount of compensation (which would include the amount of compensation under the award under section 11). It is further clarified that by the word “compensation”, the Court means the compensation attributable to the value of the land paid on the basis of the prices determined by the Reference Court, together with the compensation with respect of other items, if any, including the well etc.”

11. Similar views deserve be taken in the present case on the basis of the very reasons recorded. Hence, it is hereby held and directed that the solatium at the rate of 30% will be paid on the entire amount of compensation (which would include the amount of compensation under the award under Section 11). It is further clarified that by the word 'compensation', the Court means 'the compensation attributable to the value of the land paid on the basis of the price determined by the Reference Court together with the compensation with respect to the other items, if any, including the well etc.

12. Mr.Hathi, learned Counsel appearing for the appellant/claimant lastly contended that on the basis of the decision of this Court in appeals, which came to be considered by this Court, including the First Appeal No.546 of 1988 and others decided on 26.3.2007, the claimant would be entitled to the additional amount of interest at the rate of 9% and 15%, as the case may be, on the amount of compensation as well as on the amount of solatium. It appears that as per the judgement and award of the Reference Court, the interest at the rate of 9% from the date of taking of the land together with the land for the first year and thereafter the interest at the rate of 15% per annum till the amount is deposited in the Court, is awarded. Therefore, so far as the awarding of the rate of interest is concerned, there is no dispute, but it appears that the contention of the learned Counsel is that such amount of rate of interest would apply to the amount of compensation as determined by this Court in the present proceedings and also the solatium at the rate of 30% on the principal amount of compensation (the amount awarded by the L.A.O. as well as by the Reference Court). It may be recorded that while considering the said aspects, this Court in the above referred decision dated 26.03.2007 had observed at para 14, 15 and 16 as under:-

“14. It may be recorded that the Division Bench in its First Appeal No.467 of 1986 did observe at paras 16 & 17 as under:

“16. A further contention raised by learned counsel for the appellant also requires to be accepted in the context of the interest payable on the amount in question. Here also, we find that the Reference Court has in its final order directed payment of interest at the rate of 9% p.a. on "the enhanced amount". Obviously, this is an error which requires to be rectified. We accordingly hold and direct that the interest would be payable on the entire amount of the compensation and not merely on the amount enhanced by the award under section 18, and that such interest would be at the rate of 9% p.a. for the first year starting from the date of handing over possession, and at the rate of 15% p.a. for the period thereafter upto the date of payment or deposit in court.

17. It was further submitted by learned counsel for the appellant that the claimants are entitled to interest not merely on the market value of the lands, but are also entitled to interest on solatium. In support of his contention, learned counsel for the appellant relied upon a decision of the Supreme Court in the case of Naraiandas Jain v. Agra Nagar Mahapalika, reported in 1991 (4) SCC 212. No doubt, this plea raised on behalf of the appellant is supported by observation made in para 7 of the said decision. There cannot be any controversy that para 7 of the said decision does lay down that the solatium follows automatically the market value of the lands acquired, and that the spirit of the provision as to compensation includes the award and solatium, and that therefore, interest would also accrue on the solatium part of the award. However, in a subsequent decision of the Supreme Court in the case of Yadavrao P. Pathade v. State of Maharashtra, reported in JT 1996 (2) SC P. 240, a contrary view has been explicitly expressed and consequently, the prior view expressed by the Supreme Court in the case of Naraindas Jain (supra) is impliedly overruled. In fact, in the latter decision referred to hereinabove namely; Yadavrao P. Pathade v. State of Maharashtra, an earlier and contrary view taken in another Supreme Court decision namely, Periyar & Pareekalli Rubber Limited, reported in 1991 (1) SC 450, has been specifically considered and specifically overruled. In view of the decision in the case of Yadavrao P. Pathade (supra), learned counsel for the appellant was unable to sustain this contention any further.”

15. However subsequently, in the above decision of the Apex Court in the case of Sundar (Supra), the constitutional bench of the Apex Court has taken a different view than the view taken by the Apex Court in its earlier decision in the case of Yadavrao P. Pathade (supra), and ultimately, the Apex Court has laid down that the person entitled to the compensation awarded is also entitled to get the interest on the aggregate amount including solatium. No other decision of the Apex Court in this regard is brought to the notice of this Court by the advocate of either side, including the learned AGP. As present matters have remained pending and at the time they are finally heard, the law is changed, the benefit would be available to the present appellants.

16. Under the above, the only conclusion would be that the interest would be payable on the entire amount of compensation and solatium and not only on the mere amount enhanced by the Award of the Reference Court under Section 18 of the Land Acquisition Act and such interest would be @ 9% p.a. for the first year starting from the date of handing over of the possession and @ 15% for the period thereafter, upto the date of payment deposited in the Court. Hence ordered accordingly.”

13. Similar views deserve to be taken in the present case, however, as in the present case the rate of interest for the first year and for the subsequent period are already ordered at the rate of 9% and 15% respectively by the Reference Court, it deserves to be further clarified and ordered on the basis of the same reasons that such interest at the rate of 9% or 15%, as the case may be, would accrue over the amount of compensation as awarded by the Land Acquisition Officer plus compensation awarded by the Reference Court and the solatium on the aforesaid both the amounts of compensation. Hence, ordered accordingly.

14. In the result, First Appeal Nos.376 of 1987 to 399 of 1987 preferred by the State Government shall stand dismissed for reduction of compensation than the amount of compensation awarded by the Reference Court. However, First Appeal Nos.2278 of 1987 to 2300 of 1987 shall stand partly allowed to the aforesaid extent. No order as to costs. Decree accordingly.

30.3.2007 (Jayant Patel, J.) vinod