(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) As all the appeals arise from the common judgement and award of the reference court, they are being considered by this common judgement.
Short facts are that the land situated at village Lakhtar, Surendranagar district were to be acquired for providing plot to the poor persons, under the Land Acquisition Act (hereinafter referred to as 'the Act'). The notification under section - 4 of the Act was published on 16.05.1986 and the notification under section - 6 of the Act was published on 28.9.1986. The award was passed by the Special Land Acquisition Officer and he granted compensation at Rs.6,000/- per acre of the land in question. As the claimants were not satisfied with the compensation, they raised dispute and claimed amount of compensation at Rs.100/- per Sq.mtr. The matter was referred to the Reference Court for adjudication. The Reference Court, at the conclusion, passed judgement and award whereby the Reference Court awarded compensation at Rs.12,000/- per acre by fixing market value per acre at the relevant date. Under these circumstances, the present appeals before this Court.
We may record that First Appeal Nos. 777 of 1997 and 778 of 1997 have been preferred by the State contending that the amount of compensation would be less than what is ordered by the Reference Court whereas the original Claimants have preferred First Appeal Nos. 527 of 1997 and 528 of 1997 for enhancement of the compensation contending that they are entitled to the additional compensation and contended that the Learned Judge ought to have granted compensation at Rs.32,000/- per acre.
We have heard Mr. G.M.Amin, learned counsel appearing for the claimants in the respective appeals. We have heard Mr.K.L.Pandya, learned A.G.P. for the State and the Special Land Acquisition Officer in the respective appeals. We have considered the judgement and reasons recorded by the Reference Court and we have also considered the Record and Proceedings of the Reference Court.
Perusal of the impugned judgement and award of the Reference Court shows that the Reference Court was mainly guided by the award passed in the year 1981 for the acquisition of the other land at Lakhtar wherein the compensation awarded was Rs.5,800/- per acre and the rounding at Rs.6,000/- per acre. The Reference Court found that as in the present case the acquisition was of the year 1986 and the amount of investment in the Government securities would have been doubled, the Reference Court has awarded the compensation by doubling aforesaid amount of Rs.6,000/- i.e. Rs.12,000/-.
It was submitted by the learned counsel for the claimants that the contents of the award could not have been considered by the Reference Court unless such award was proved and therefore, the Reference Court has committed an error in considering the award passed in the year 1981 which was, of course, considered by the Special Land Acquisition Officer, but no weightage was given at the relevant time.
Whereas Mr. Pandya, learned A.G.P. appearing for the state submitted that talati was examined for supporting the case of the Special Land Acquisition Officer and therefore, it was not a case where no evidence was produced on behalf of the Special Land Acquisition Officer and therefore, the reference Court, was within its power to consider the same.
We find that the award was already there on record and in the support thereof, witness Maheshkumar, Talati, was also examined at Exh.48. The contents of the award could be considered by the Reference Court but what weightage to be given is an another aspect which can be separately considered. It is not in dispute that the earlier award that was passed by the Reference Court in the year 1981 and compensation was awarded for Rs.5,800/- but was not considered by the Special Land Acquisition Officer while passing the award in the present case. The Learned Judge, thereafter, has found that location of the land was nearby the road and therefore, it was comparable land for the purpose of awarding compensation, which could not have been ignored by the Special Land Acquisition Officer for passing the award in the present acquisition proceedings. Therefore, we cannot accept the contention of learned Advocate Mr. Amin that the contents of the award in the acquisition proceedings is not at all to be considered by the Court. But, the matter does not end there. The further aspect which was required to be considered by the Court was as to whether the said award for granting compensation at Rs.5,800/- per acre from the period of 1981 was accepted by the land owner or there was any in dispute raised by the claimants. Therefore, unless such evidence or any material was produced before the Court on record, it could not be conclusively said that the compensation of Rs.5,800/- per acre awarded in the year 1981 by the Special Land Acquisition Officer could be a valid base for assessing the market value of the land by the Reference Court. In the present case, even if the lands were located in the nearby vicinity, in addition to the aforesaid aspect of awarding of the compensation at Rs.5,800/- per acre for the acquisition in the year 1981 by the Special Land Acquisition Officer, it was required for the Court to consider the other evidence for the market value of the land.
As such the claimants have produced two documents; one was of sale instance at Exh. 44 wherein the land was located in the village side, but the same appears to have been rightly discarded by the Learned Judge on the ground that it was adjacent land purchased by the owner. Further, it appears that the land of a village site cannot be fully compared with the agricultural land which is under acquisition. Moreover, there was additional evidence available and produced on behalf of the claimants by examining Somabhai Mohanbhai who had entered into an agreement to sell for his land in the year 1984 at the price of Rs.75,000/- for the land admeasuring 2 acre 38 gunthas and it can roughly be said to be 3 acre. If the agreement to sell is considered as it is, it can be said that the same was for sale at Rs.25,000/- per acre in the year 1984 but it has come on record that the said agreement to sell has not culminated into the actual sale inasmuch as the sale deed was not executed based on sale but rather the same was canceled subsequently. Therefore, under these circumstances, the price referred to in the agreement to sell cannot be given weightage at par with the price for a concluded sale. The perusal of the said agreement to sell, also shows that it was not registered agreement to sell but was unregistered document. The circumstances resulting into the cancellation of the agreement to sell have not clearly come on record, which may enable the Court to examine as to whether the sale was canceled on account of higher fixation of the price or otherwise.
Under these circumstances, we find it appropriate to make deduction in the price of the land referred in the agreement to sell. Further, as the deduction is to be made and the agreement has not resulted into the concluded sale, the time gap of 1984 to 1986 should not be given any extra weightage for the purpose of appreciation. Considering the facts and circumstances, we find it appropriate to deduct 25 % in the price of the land referred to in the agreement to sell and accordingly, appropriate price of the land could be assessed at Rs.18,750/- per acre on the date when the notification under section
- 4 of the Act was published. If the aforesaid evidence and the assessment made of the price is taken into consideration, market value assessed by the Reference Court of the land in question at Rs.12,000/- per acre cannot be sustained.
In view of the aforesaid observations and discussion, we find that the claimants shall be entitled to the compensation at Rs.18,750/- per acre as compensation of the land under acquisition. Consequently, after deducting amount of compensation already paid at the rate of Rs.6,000/- per acre by the Special Acquisition Officer, additional amount of the compensation shall be Rs.12,750/- per acre.
On the aspect of statutory benefits available to the land owner, if the Reference Court has already awarded increase in price at the rate of 12% and solatium at the rate of 30% and interest at the rate of 15% as per the provisions of under Section 23(1-A), 23(2) and 28 of the Act, no interference is called for However, Mr Amin, learned counsel appearing for the original claimants, further contended that the claimants would also be entitled for the interest and solutium in view of the additional amount of the compensation, in view of the decision of the Apex Court in case of Sunder V. Union of India reported in 2001(7) SCC 211. The contention of Mr. Amin was that the claimants would be entitled to interest on solutium from the date of acquisition i.e.1986 and it may not be restricted to from 19.09.2001 i.e. date on which the Apex Court delivered the judgement in case of Sunder V. Union of India reported in 2001(7) SCC 211.
In our view, the contention of Mr.Amin stands convered by the decision of the Apex Court in case of Iyasamy and another V. Special Tehsildar, Land Acquisition reported at (2010)10 SCC 464, whereby the Apex Court has taken the view that the interest would be available from the date of the judgement in Sunder case i.e. 2004 and not prior thereto. At this stage, we may also refer to the decision of this Court in case of Special Land Acquisition Officer, Dy. Collector V. Parbhubhai Hirabhai in First Appeal No.498 of 2003 and allied matters decided on 10.08.2011. In the said decision, this Court observed at Para - 21, 22 and 23 as under:
"21. Mr.Patel, learned Counsel appearing for the original claimants, contended that in the impugned award of the Reference Court, no interest has been specifically granted by the Reference Court on the amount of solatium under Section 23(2) and increase under Section 23(1-A) of the Act. Therefore, he submitted that such amount be specifically awarded by this Court.
22. On the aforesaid aspects, we have already considered the matter in the case of Gujarat Industrial Development Corporation v. Patel Bhagwanbhai Bhimjibhai (FA No.805 of 1994 and allied matters), decided on 7.7.2011 and we have taken the view that such interest on solatium under Section 23(2) and increase under Section 23(1-A) would be available from 19th September, 2001 onwards. We may record that in the said decision, it was observed at para 13 to 15 as under:-
"13. We may record that on the aspects of entitlement of interest, the position is settled by the Apex Court in the case of Sunder Vs. Union of India, reported at (2001) 7 SCC 211 and also the another decision of the Apex Court in the case of Patel Joitaram Kalidas and ors. Vs.Special Land Acquisition Officer and anr. reported at (2007) 2 SCC 341. In the case of Sunder (supra), the Apex Court has observed at paragraph 24 as under:
"The proviso to Section 34 of the Act makes the 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 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 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."
14. Therefore, the liability to pay interest would get attracted. However, in the case of Iyasamy and another Vs.Special Tehsildar, Land Acquisition reported at (2010)10 SCC 464, the Apex Court on the aspects of interest on solatium observed that as the matter was pending before the High Court, the claimants would be entitled for the benefit of the decision of the Apex Court in the case of Sunder (supra) from 19.09.2001, but shall not be entitled to the interest on solatium for the period prior to 19.09.2001.
15. Considering the facts and circumstances, we find that the said ratio can be made applicable to the present case since the appeal has remained pending before this Court even after 19.09.2001 and the decision is being rendered today. Same situation would prevail for the entitlement of the interest on the amount payable under section 23(1-A) on the principal amount of compensation but as per the above referred decision of the Apex Court, such would also be the entitlement for the interest from 19.09.2001 and not prior thereto. Hence, we find that the said aspect is required to be clarified to the aforesaid extent for entitlement of the interest under section 28 of the Act."
23. Hence, we find that similar view deserves to be taken in the present matter on the said aspect. Therefore, it is further ordered that the original claimants shall also be entitled to the interest as per Section 28 of the Act on the solatium under Section 23(2) of the Act and increase under Section 23(1-A) of the Act from 19th September, 2001 onwards until the amount is actually paid or deposition with the Court."
We find that similar view deserves to be taken in the present case, inasmuch as the claimants could be entitled for the interest as per the section 28 of the Act on the solatium under Section 23(2) of the Act and increase under Section 23(1-A) of the Act from 19th September, 2001 onwards until the amount is actually paid or deposition with the Court.
Hence, it is observed and directed that the Claimants would be entitled to compensation for the land in question at Rs.18,750/- per acre with increase in the price. The claimants shall also be entitled for increase in the market value as per Section 23(1-A) of the Act. The claimants shall also entitled to solutium under Section 23(2) of the Act. However, so far as the interest under Section 28 of the Act is concerned, the claimants would be entitled to the interest on the principal amount of compensation with the statutory benefits. Further, the interest on the solatium under Section 23(2) of the Act and increase under Section 23(1-A) of the Act from 19th September, 2001 onwards until the amount is actually paid or deposition with the Court.
The Judgement and award of the Reference Court stands modified to the aforesaid extent. First Appeal No. 777 of 1997 with First Appeal No. 778 of 1997 shall stand dismissed. First Appeal No. 527 and First Appeal No. 528 shall stand allowed to the aforesaid extent. Considering the facts and circumstances of the case, there shall be no order as to costs.
(JAYANT PATEL, J.) (C.L.SONI,J) *f.kazi Top