Kashiben Bhikabai and ors. Vs. Special Land Acquisition Officer and anr. - Court Judgment

Excerpt:
property - acquisition of land - compensation - determination of - land owners who initially claimed compensation at rs. 4/- sq. ft. entered into an agreement with a land corporation consenting to receive from corporation compensation at rs. 1.35 per sq. ft. authorizing it to deal with and complete the matter of acquisition and also agreeing not to stake their claim in the event of the government paying any enhanced compensation - land acquisition officer in its award divided land into four categories awarding compensation at different rates ranging from rs. 0.93 to 1.58 per sq. ft. - out of total 94 claimants 42 refused to abide by the agreement with the corporation which then filed a civil suit - high court permitted the said 42 claimants to withdraw only rs. 1.35 per sq. ft. from the award amount and excess directed not to be released till disposal of suit- except the 7 claimants rest out of 42 settled the matter with the corporation- corporation along with 35 claimants who executed the agreement, challenged the award before the reference court deposing that they would abide by the agreement- reference court awarded compensation at a uniform rate of rs. 3.71 per sq. ft. to be paid to the corporation in view of the deposition of the land owner- high court reduced compensation to rs. 1.88 per sq. ft. - out of 35 claimants 22 revoked their power of attorney given in favour of corporation and filing application for separating their slp - price of land fixed at rs. 2.00 per sq. ft. along with statutory solatium @ 30% - no additional compensation provided under section 23(1-a) of the land acquisition act - enhanced compensation payable to corporation as per agreement reserving the rights of claimants to recover the same from corporation if permissible in law. - madhya pradesh uchcha nyayalaya (khand nyaypeeth ko appeal) adhiniyam (14 of 2006)section 2 :[tarun chatterjee & h.l.dattu,jj] writ appeal delay of 589 days in filing - condonation of delay - statements made in application making out sufficient cause for delay delay condoned on condition of payment of costs. - relying upon the statement ofeach of the land owners in their reply as well as their deposition to the effectthat compensation awarded in excess of rs. this applicationstates, inter alia, that the agreement dated 16.12.1978 is under challengebefore the civil court of nadiad as being bad in law, unjust, unfair andagainst public policy. the highcourt discarded the first sale instance on the ground that the land sold by thesale deed was better located than the land under acquisition. 18. it would be seen that the reference court as well as the high courthave held that the claimants are bound by the agreement enter into bythem with the alc in view of the admissions made by them in theirreference applications and the statements made in the court.bhan, j.1. aggrieved by the judgment of the high court of gujarat in reducingthe compensation payable under the land acquisition act, 1894 andclaiming more, fair and equitable compensation for the acquired land theclaimants have come up in these appeals.2. on 15thmay, 1974 state of gujarat issued a notification undersection 4 of the land acquisition act, 1894 (hereinafter referred to as 'theact') for acquisition of 78 hectares, 32 acres and 54 sq. meters of land invillage gorva, which is situated within the limits of the municipalcorporation of baroda, gujarat, for the gujarat housing board. it waspublished in the official gazette on 8thaugust, 1974. notification undersection 6 of the act was issued on 12thjuly, 1977 and was published in thegazette on 21stjuly, 1977.3. there were 94 claimants whose land was notified for acquisitionunder the aforesaid notifications. they claimed compensation @ rs. 4/- persq. ft. before the land acquisition officer (for short 'the lao').4. the land owners entered into an agreement with arun landcorporation (for short 'the alc'), 36thappellant in the instant appeals. thisagreement reads, inter alia, as under:a) by virtue of these powers, thepartners of arun land corporation can givesuitable replies, give/cause to give writingson behalf of us and to complete this matterof acquisition and we all agree to it with ourconsent. b) it is the responsibility of thiscorporation to award us the price of thisland at the rate of rs. 1.35per sq. ft. c) if gujarat housing board awards anyamount in excess of the above and if arunland corporation receives such excessamount, we, the farmers do not have anykind of objection therein and we assign allsuch rights to this corporation.' 5. the land acquisition officer declared the award on 10thoctober,1980. he divided the land into four categories, viz., a, b, c and d anddetermined the compensation as under:category amount in rupees a 0.93 per sq. ft. (rs. 1 lakh per hectare)b 1.21 per sq. ft. (rs. 1.30 lakh per hectare)c 1.40 per sq. ft. (rs. 1.50 lakh per hectare)d 1.58 per sq. ft. (rs. 1.70 lakh per hectare)6. out of the total number of 94 claimants, 42 claimants refused to abideby the agreement. alc filed a suit being suit no. 156 of 1980 againstthem in the civil court. nadiad, which restrained the land acquisitionofficer from disbursing to these 42 claimants the amounts payable under theaward. an appeal was filed by the said 42 claimants to the high court.the high court permitted them to withdraw only rs. 1.35 per sq. ft. from theaward amount and the amount awarded in excess of rs. 1.35 per sq. ft. wasdirected not to be released till the disposal of the suit filed by the alc. thesaid suit is still pending. except for 7 claimants, the rest of the 42 claimants,who had challenged the agreement dated 16.12.1978 have settled the matterwith the alc. the pending suit is rebate able to the 7 claimants only.7. each of the 35 claimants who are before us abided by the agreementdated 16.12.1978 and received payment @ rs. 1.35 per sq. ft. between 10thoctober, 1980 to 30thnovember, 1980. as the claimants, including thosebefore us, were aggrieved by the award, reference was made under section18 of the act to the court. in each reference the alc was claimant no. 2.in the land reference applications, each of the claimants admitted that eachof them had executed the agreement dated 16.12.1978 in favour of the alc.similarly, the each of the claimants deposed before the reference court thatthey executed the agreement dated 16.12.1978 with the alc and abide bythe same.8. by a judgment and order dated 11thseptember, 1987 the extraassistant judge (hereinafter referred to 'the reference court') held that thespecial land acquisition officer had erroneously divided the lands into fourcategories as all the lands were contiguous and similarly situated and,therefore, compensation was required to be awarded at a uniform rate. onthe basis of the sale instances, the reference court fixed the market value ofthe land at rs. 4 lakhs per hectare and accordingly awarded compensation @rs. 4 lakhs per hectare, i.e., rs. 3.71 per sq. ft. relying upon the statement ofeach of the land owners in their reply as well as their deposition to the effectthat compensation awarded in excess of rs. 1.35 per sq. ft. should go to thealc, the reference court held that both the claimants are jointly entitled toget enhanced compensation and further ordered that:'the question of apportionment between thetwo claimants will not arise because theclaimant no. 1 in each reference case hastaken off hands from the enhanced amountof compensation by filing their reply andalso by giving oral deposition. thereforeamount be paid to claimant no. 2.'9. the state government filed 36 appeals through the land acquisitionofficer before the high court or gujarat challenging the aforesaid order ofthe reference court dated 11.9.1987. 35 claimants, who are before us,executed a general power of attorney empowering manibhai mangalbhaipatel, a partner of the alc, to file cross objections in the first appeal filedby the state, special leave petition in this court or lpa, review, revisionetc. either in this court or in the high court and to receive on their behalfthe compensation, interest and costs receivable in future from the specialland acquisition officer or from the courts or from the bank orgovernment treasury either in case or cheque or demand draft etc.. thealc filed cross objections to the said appeals.10. the high court of gujarat by the impugned judgment and orderreduced the price of the land in question to rs. 1.88 per sq. ft. instead ofrs. 3.71 as fixed by the reference court. order of the reference courtawarding solatium @ 30% under section 23(2) of the act was maintainedbut the additional amount under section 23(1a) of the act was disallowed.aggrieved against the aforesaid judgment and order of the high court thepresent appeals have been filed.11. out of the 35 claimants-appellants, 22 claimants-appellants filed anapplication for separating their petition for special leave. this applicationstates, inter alia, that the agreement dated 16.12.1978 is under challengebefore the civil court of nadiad as being bad in law, unjust, unfair andagainst public policy. that the applicants have specifically revoked thealleged power of attorney given to the alc vide lawyer notice dated27.2.1992. that the notice of revocation was published in 'gujarat samachar', a gujarati daily published from baroda on 3.3.1992. that theinterests of the applicants were in conflict with that of alc and in view ofthe same, it is essential in the interest of justice to separate their petitions forspecial leave to appeal of the applicants and they be permitted to berepresented by another advocate of their choice. the alc has contested theapplications filed by the claimants on several grounds.12. two points arise for consideration in these appeals. the first point isfor the determination of the fair compensation payable to the claimants/alcfor the land acquired. on this point, the interest of the alc and otherclaimants including 22 claimants, who have filed the application forseparating their special leave petition, is common. the second point is theinter se dispute between the 22 claimants-appellants who have filed theapplications for separating their special leave petition and the alc in whosefavour they have transferred their right to get compensation over and abovers. 1.35 per sq. ft.13. on the first point after going through the evidence it is seen that theclaimants had relied upon three instances of sale. the first was the sale ofsurvey no. 8 of village gorwa in which the agreement to sell was executedon 25.6.1972. the land was agreed to be sold at the rate of rs. 3.50 persq.ft to the housing society. the sale deed was to be executed within sixmonths after obtaining the necessary permissions from the stategovernment. because of the said condition the actual sale deed wasexecuted in the year 1979. next sale instance relied upon was in respect ofsurvey no. 9. the sale deeds are exs. 71 to 75 dated 30.11.1973, 1.12.1973,4.12.1973, 5.12.1973 and 6.12.1973 respectively. the land was sold at therate of rs. 2.38 per sq. ft. the third sale instance relied upon was for theland situated within the abadi deh of village gorwa executed on 5thdecember 1973 which was sold at the rate of rs. 7 per sq. ft. the highcourt discarded the first sale instance on the ground that the land sold by thesale deed was better located than the land under acquisition. moreover, theparties to the sale did not expect the sale to be completed within a short timeand this factor must have been taken into consideration for fixing a pricehigher than the prevailing price. the third sale deed was excluded as thesame was situated in the abadi area.14. the high court accepted the second instance, where the land was soldfor rs. 2.38 per sq. ft. but reduced it by rs. 0.50 paise per sq. ft. it was heldthat at the first instance the land had been agreed to be sold to datta landcorporation for rs. 1.88 per sq. ft. which later on sold the same to the jaysatyanarayan co-operative housing society at rs. 2.38 per sq. ft. the highcourt reduced the price by rs. 0.50 per sq. ft. because datta landcorporation did not need the land and transaction entered into by them wasspeculative in nature. the consideration paid to datta land corporation wasreduced from the sale price of rs. 2.38 per sq. ft., thus fixing the marketvalue of the land at rs. 1.88 per sq. ft. we are unable to agree with theview taken by the high court on the second instance of sale. there was nojustification for reducing the payment which had been made to datta landcorporation. once the sale price of rs. 2.38 per sq. ft. is accepted to be theprice prevailing in december 1973 then it could not be reduced by the sumpaid to the intermediary in whose favour the first agreement to sell had beenexecuted. the price of the land could not be reduced on the ground thatintermediary after having agreed to purchase the land at rs. 1.88 per sq. ft.had later sold the land to the vendee at rs. 2.38 per sq. ft. on making aprofit of rs. 0.50 paise per sq. ft.15. the price of rs. 3.50 per sq. ft. which was the agreed sale price forsurvey no. 8 in the first sale instance cannot be accepted for the simplereasons that the land in survey no. 8 (first sale instance) and the land in thesurvey no. 9 (second sale instance) are adjoining to each other. the sale inthe second sale instance was in december, 1973 and the prevailing price atthat time was rs. 2.38 per sq. ft. therefore, the price of the ad joint landon 25thjune, 1972 in survey no. 8 could not have been rs. 3.50 sq. ft. thesame seems to be highly exaggerate 1. as the parties did not expect the saledeed to be completed within a short time, they must have taken this factorinto consideration while fixing the price at a higher rate than the prevailingprice. the agreements to sell were of 1972 whereas the sale deeds wereexecuted in the year 1979. the third sale instance which was of the abadiland was rightly discarded by the high court.16. from the map shown to us we find that the acquired land is not faraway from survey nos. 8 and 9. the total distance between the two may notbe more than 60 to 70 yds from each other. keeping in these factors inview, we are of the opinion that the prevailing market price in the firstweek of december, 1973 of the acquired land was rs. 2.38 per sq. ft. inmay 1974 when the notification under section 4 was issued the price mayhave been little higher than rs. 2.38 per sq. ft. as rapid development wastaking place in and around the area where the land under reference wassituated. land comprising in survey no. 8 which was sold measured 2800sq. yds. keeping in view the fact that large areas of land do not fetch thesame price as the small piece of land and a large amount is required to bespend for developing the land we fix the price of land at rs. 2.00 per sq. ft.instead of rs. 1.88 per sq. ft. thus enhancing the compensation by rs. 0.12paise per sq. ft. the claimants would be entitled to statutory solatium @30% as has been held by a constitution bench of this court in union ofindia and anr. v. raghubir singh (deed) by lrs. ect. : [1989]178itr548(sc) as the award of the reference court was made after the coming intoforce of the amendments introduced by the amending act of 1984.17. counsel appearing for the claimants contended that the claimantswould be entitled to an addition compensation @ 12% as provided undersection 23(1a) of the act. this contention cannot be accepted in view of abench decision of this court in union of india and ors. v. filip tiago degama of vedem vasco de gama, : (1990)1scc277 which held thatadditional compensation under section 23(1a) of the act would not beavailable to a claimant in which the acquisition proceedings commenced andthe award was made by the collector prior to april 30, 1982. if thecollector made the award before 30th april, 1982 then the additional amountunder section 23(1a) cannot be awarded. the pendency of the acquisitionproceedings on 30thapril, 1982 before the collector was essential forattracting the benefit under section 23(1a) of the act. it was held:'entitlement of additional amount provided undersection 23(1-a) depends upon pendency of acquisitionproceedings as on april 30, 1982 or commencement ofacquisition proceedings after that date. section 30 sub-section 1(a) provides that additional amount providedunder section 23(1-a) shall be applicable to acquisitionproceedings pending before the collector as on april 30,1982 in which he has not made the award before thatdate. if the collector has made the award before thatdate then, that additional amount cannot be awarded.section 30 sub-section (1)(b) provides that section 23(1-a) shall be applicable to every acquisition proceedingscommenced after april 30, 1982 irrespective of the factwhether the collector has made an award or not beforeseptember 24, 1984. the final point to note is thatsection 30 sub-section (1) does not refer to court awardand the court award is used only in section 30 sub-section (2).'no judgment taking a contrary view to the above-referred case was citedbefore us. accordingly, it is held that the appellants would not be entitled tothe additional compensation provided under section 23(1a) of the act.18. it would be seen that the reference court as well as the high courthave held that the claimants are bound by the agreement enter into bythem with the alc in view of the admissions made by them in theirreference applications and the statements made in the court. claimants hadaccepted that they had entered into an agreement to transfer their interest inthe compensation payable over and above rs. 1.35 per sq. ft. in favour of thealc. they had specifically stated that the amount of compensation overand above rs. 1.35 per sq. ft. be paid to the alc. we are not opining onthis matter as this might prejudice the rights of the parities in suit no. 156 of1980 between the alc and the seven claimants in the civil court at nadiad.the 22 claimants-appellants who have asked for separating their interest didnot contest the right of the alc to get the higher amount of compensation asper agreement either before the reference court or before the high court.no material has been placed before us to record a finding tot he contrary. keeping these facts in view, we direct that the enhanced amount be paid tothe alc, reserving the rights that the claimants to recover the same from thealc, if permissible in law, on taking recourse to an appropriate proceedingsin a court of competent jurisdiction in accordance with law.19. the appeals are partly allowed in the above terms. no order as tocosts.