1. These petitions are filed under Article 226 and 227 of the Constitution of India against the judgment and order dated 28.3.2000 passed by the Gujarat Revenue Tribunal in Appeal No. TEN-AK-16/1984. Special Civil Application No. 7702 of 2000 is filed by the legal heirs of Shri KS Joravarsinhji Godji who claimed to be the Inamdar under the Bombay Inams (Kutch Area) Abolition Act, 1958 (hereinafter referred to as "the Act" for the sake of brevity). Main grievance amongst others raised by the petitioners in Special Civil Application No. 7702 of 2000 is to the effect that the petitioners were not given adequate compensation for uncultivated but cultivable lands and waste lands and open residential plots as per the market value under section 16 and 17 of the Act.
2. Special Civil Application No. 12116 of 2000 is filed by the State of Gujarat bringing forth the challenge that the Inamdar was not entitled to the benefit of compensation under the Land Acquisition Act and they were also not entitled to the other statutory benefits like solatium and interest under the said Act. For the sake of convenience, Petitioners in Special Civil Application No. 7702 of 2000 shall be referred to as "the Inamdars" and the petitioners in Special Civil Application No. 12116 of 2000 shall be referred to as "the State".
3. The facts of the case as noticed from the record are to the effect that the petitioners in Special Civil Application No. 7702 of 2000 claimed to be the Inamdars in respect of villages Mokha and Chhasra of Mundra Taluka, District Kutch. These villages were granted as Jagir to the petitioners' late father KS Godji by the ruler of Kutch under the sanad dated 27.3.1948 before the merger of the State of Kutch with the Union of India. This Jagir came to be abolished by virtue of the Bombay Inams (Kutch Area) Abolition Act, 1958 with effect from 30.12.1958. Therefore, Inamdars filed separate application under section 13 on 30th March, 1967 in prescribed form claiming compensation. Special Mamlatdar awarded sum of Rs.43600.14 ps for agricultural land and Rs.48.05 ps. per tree as market value of the trees. No compensation was however awarded for uncultivable waste lands and village site lands. It appears that thereafter, the Inamdars approached the Tribunal and the matter was remanded to the Special Mamlatdar on 4.11.1982 for giving adequate opportunities of hearing to the Inamdars and the Mamlatdar thereafter made order dated 23.4.1984 and did not make any change in his earlier order. The Inamdars thereafter again approached the Tribunal and the Tribunal by its order dated 24.6.88 gave some additional benefits. However, the Inamdars were not satisfied and, therefore, they filed Special Civil Application No. 194 of 1989 before this Court and this Court quashed and set aside the order dated 24.6.88 passed by the Tribunal and remanded matter for fresh disposal by order dated 8.11.1993 in light of the observations made in the judgment and order. In the said proceedings of Special Civil Application No. 194 of 1989, this Court had noted the following main submissions of the Inamdars :
For unbuilt village site lands, there is no provision made in section 13 of the Act, therefore, in view of the provisions of section 16, an application could be made by the petitioners for compensation which could be granted according to the method provided by section 23 and 24 of the Land Acquisition Act. In other words, for unbuilt village site, compensation will be payable at the market value of such property.
The lands of two villages which were not subject to assessment of revenue and, therefore, even as regards uncultivated but cultivable waste lands, compensation could not have been awarded only at the rate of three times the assessment of the land but ought to have been awarded at the market value. It is further recorded as a part of the contention that the attention of the tribunal was not directed to this aspect of the matter as to whether the lands of these two villages were subjected to assessment of revenue. The consequence if the lands were assessed to land revenue would be that they would squarely fall within sub-section 3(a) of section 13. However, if the lands of the village are not assessed at all, then, the question as to on what basis the compensation would be payable would arise. In other words, the question would arise as to whether compensation should be paid at market value in respect of such lands which are not assessed to land revenue. Entire aspect is required to be considered by the Tribunal which it may do in context of the contentions that may be canvassed on behalf of the petitioners and the relevant provisions of law.
Even though under the panchanama made by the Talati total number of trees was shown over 1300, inspection notes had shown only 126 trees. The Tribunal ought to have examined this discrepancy in its proper perspective which it failed to do.
The claim under the head of other properties about wells and stone quarry, but the tribunal has not taken into account that claim either for rejecting it or allowing it. It will be open for the petitioner to demonstrate before the Tribunal the validity of their claim on this count and the tribunal shall consider and decide the same in accordance with law.
The claim of solatium under section 30(2) and additional compensation under section 23(1)(A) as also interest under the provisions of the Land Acquisition Act was required to be decided by the Tribunal. Since the award was made on 23rd April, 1984 after the remand was made, the petitioners would be entitled to enhanced solatium as per the decision of Hon'ble the Apex Court in the case of Union of India vs. Raghubir Singh reported in AIR 1989 SC 1933. The Tribunal therefore ought to have considered the matter in light of the said decision of Hon'ble the Supreme Court and decided the claim of the petitioners as regards solatium. The claim of the petitioners under section 34 of the Land Acquisition Act for interest is also required to be considered by the Tribunal which it may do so in accordance with law.
4. It appears that while dealing with the above said contentions, the learned Single Judge at the relevant time had also simultaneously in respect of each contention given directions to the Tribunal to consider all contentions of the petitioners and for that purpose, the matter was remanded to the Tribunal for disposal in light of the observations made in the judgment and order passed in the said petition. It appears that the Inamdars then applied for amendment in the appeal before the Tribunal claiming compensation at the market value for lands instead of three times assessment of such lands and for compensation on other items and also for other benefits under the Act. Inamdars had also filed application for additional evidence. The Tribunal therefore thought it fit to remand the matter again to the Special Mamlatdar by granting amendment application as also the application for additional evidence and directed the Special Mamlatdar to give his finding and make report on the following points:
(i) to investigate from old records, including the old Kutch State Record, and decide as to whether the lands of the aforesaid two villages were subjected to land revenue assessment or not;
(ii) to decide whether the claim made by the applicants about unbuilt village site lands is substantiated by any documentary evidence;
(iii) to supply a copy of the Rojkam about the number of trees to the applicants and allowing opportunity to produce evidence about the number of trees as on the date of the abolition of the Inam;
(iv) to decide whether the other properties, like wells, quarries, etc. as claimed by the applicants are properties of the applicants which are eligible for compensation under the Act;
(v) to decide as to whether compensation in payable in consonance with the provisions of section 23(1) of the Land Acquisition Act , and if so to fix the compensation for the lands in question in accordance with law, for which by allowing the applicants to adduce evidence, if any, and further to allow the opponent State to produce evidence, if any, in rebuttal,if the special Mamlatdar come to the conclusion that compensation at market rate is compensation payable to the applicants accordingly in accordance with law."
5. After the matter was remanded to the tribunal by this Court and when the tribunal asked the Special Mamlatdar to make report after permitting the petitioners to lead the additional evidence, the Special Mamlatdar made his report on different claims as under:
Total uncultivated but cultivable lands came to be Acre 2339.17 Gunthas, to such lands, provisions of section13(3)(a) would not be applicable but the compensation at the market value will be required to be fixed as per section 16 of the Act. The market value fixed is Rs.1533 per acre total of which come to Rs.35,86,339.00 for Acre 2339.17 Gunthas of land.
For open residential unbuilt plots and for compensation as regards trees, the matter was left to the Tribunal.
For following other properties:
Sr.
No.
Name of village Description of the village Market value basses on the valuation report of the Government Recognized Expert Valuer Shri SH Vavadia.
Chhasra 10 wells 30,000.00 2 Mokha 5 wells 15,000.00 3 Chhasra One windmill 3,000.00 4 Chhasra Roads and path ways 1,22,138.00 5 Mokha (1) Roads and path ways 38,338.00 (2) Roads inside the village 19,542.00 6 Chhasra (1) One Main Pond 10,000.00 (2) Four small Ponds 20,000.00 7 Mokha Three small ponds 15,000.00 8 Chhasra Other items of the property 21,370.00 9 Mokha Other items of the property 5,450.00 Total compensation of Rs.3,39,838.00 was fixed.
As regards the income from the stone mines, the Mamlatdar recorded that it was As regards the income from the stone mines, the Mamlatdar recorded that it was Rs.392.50 ps. that is on 12.10.1958 but still left the matter to be decided by the Tribunal.
On receipt of the above said report from the Special Mamlatdar, the Tribunal then took up the original appeal being Appeal No. TEN-AK-16/1984 for deciding it finally. The Tribunal considered the following submissions made on behalf of the Inamdars and also heard the arguments of the learned Government Pleader on different claims of Inamdars. The Tribunal recorded its findings as under:
As regards the compensation of the lands held by the Butadars, Inamdars had no grievance about the compensation fixed at Rs.36,800.64 ps.
As regards compensation in respect of uncultivated but cultivable lands ad measuring Acre 2339.17 Gunthas, the Tribunal has not agreed with the opinion of the Mamlatdar and has held that the compensation was payable under section 13(3)(a) of the Act. For this finding, the Tribunal has recorded that all the lands in the Kutch area were subjected to assessment and even the Inamdars had also in their application asked for compensation at the rate of three times the assessment of the land. Therefore, compensation was required to be determined at the rate of three times the assessment of the land for the area in question.
As regards the open residential plots, the Tribunal relied on the sale instances of the same two villages and fixed the market value at Rs.4.00 per square yard for village Mokha and Rs.2.25 per square yard for village Chhasra and accordingly assessed the compensation.
As regards the compensation for trees, the Tribunal observed that though it was for the petitioners to lead evidence before the Mamlatdar as per the order passed by the High Court, still, the petitioners not led any evidence and, therefore, the Tribunal considering the different Panchkayas made, relied on the Panchkayas dated 12.1.1969 and held that 1330.00 trees were shown to be of more than 10 years of age in the said panchkayas and found it proper to award Rs.15.00 per tree as compensation.
So far as the other properties for which the Mamlatdar has assessed Rs.3,29,338.00 as compensation, the Tribunal did not thought it fit to alter the same.
SO far as the compensation for stone mines is concerned, the Tribunal took up Rs.132.00 as income for one year from the said mine and compensation for three years at Rs.652.00, though in the operative order, Rs.132.00 against the said claim is awarded.
The Tribunal also held that though the Inamdars claimed compensation in respect of the Harijanvas of Chhasra and Vada Land of village Mokha, no evidence was produced by them about their ownership of such land, therefore, no opinion was given by the Mamlatdar.
The Tribunal then decided to give benefit of solatium at the rate of 30 per cent and interest at the rate 9 per cent.
Special Mamlatdar was directed to declare award as stated above and to grant solatium @ 30% and also to grant interest at the rate of 9%. It was provided in the said order that if any amount was earlier paid, such amount shall be deducted while passing the order by the Special Land Acquisition Officer.
5. We have heard learned advocates for the parties in both the matters. Learned Advocate Ms. Ketty A. Mehta appearing for the Inamdars has made the following submissions :
The Claims Tribunal has committed grave error in holding that the Inamdars were entitled only to Rs.36800.00 as compensation in respect of the lands of Butadars. That the Inamdars were entitled to compensation for uncultivated cultivable lands of two villages ad-measuring 2339.77 acres as per the market value and the Tribunal was not justified in fixing the compensation of the said lands three times the assessment of lands applicable to the village. Likewise, she also submitted that in respect of the open residential plots in village Mokha and Chhasra, Inamdars were entitled to compensation at the rate of Rs.11.25 per square yards as reflected from the statement of rates at annexure F in respect of the village site lands in village Chhasra and Mokha. She submitted that if this rate is not to be granted then also, the rate of Rs.6.75 per square yard would have been made applicable which was the price reflected for the other sites in the said statement of rates. The Tribunal has committed grave error in assessing the compensation on the basis of the provisions of section 13(3)(a) of the Act instead of applying section 16 of the Act as per which the Inamdars were entitled to compensation at the market value. That the inam villages and inam lands were not subject to payment of any land revenue prior to 30.12.1958 and the assessment in respect of these lands under the Bombay Land Revenue Code came to be first applied with effect from 30.12.1958 and, therefore, the compensation in respect of these lands could not have been assessed and fixed on the basis of the assessment under the Bombay Land Revenue Code. That before the Mamlatdar, the evidence of the Government recognized Valuer Shri S.H. Vavadia who assessed the market value of the lands at Rs.1533 per acre totalling to Rs.35,86,339.00 was produced, same was not challenged and the same being the evidence before the Mamlatdar, same should have been the basis before the Tribunal and since the assessment under the Bombay Land Revenue Code was not applicable for determining the compensation of Inam lands, the tribunal ought not to have fixed and determined the compensation of the lands three times the assessment rates applicable to the village. As regards counting of trees, she has raised grievance that the tribunal has wrongly restricted the compensation for only 1337 trees though the evidence was available for 2123 trees. She also submitted that as regards other properties in Harijanvas, in Vada land, in other survey numbers the same was to the extent of 12705 square yards but the tribunal has not properly assessed the compensation and awarding of compensation of Rs.3,39,838.00 for such properties is very less compensation as against the entitlement of the Inamdars. Inamdars were entitled to all the rights in respect of mineral available in the mines in inam villages and the tribunal has gravely erred in assessing the compensation only at Rs.132.00. She submitted that Inamdars were also entitled to additional amount u/s. 23(1-A) and interest at the rate of 15% for further period after one year under the Land Acquisition Act.
6. Learned AGP Shri Rahul Dave has, in reply to the arguments advanced by the learned Advocate Mrs. K.A.Mehta as also for the petitioner-State in the petition filed by the State, made the following submissions :
Inamdars are not entitled to compensation on the basis of the market value as section 16 of the Act would have no application and the Tribunal has, therefore, not committed any error in fixing the compensation under section 13 of the Act.
The provisions of the Bombay Land Revenue Code were applicable to all the Inam villages. And when it comes to grant of compensation, the assessment of compensation could only be under the provisions of the Bombay Land Revenue Code and, therefore, the Tribunal has come to the correct finding that the provisions of the Bombay Land Revenue Code were applicable for the purpose of making assessment for the payment of compensation to the Inamdars and as per the rates prevailing for the concerned villages, the Tribunal has rightly awarded three times the assessment of land as compensation.
Inamdars were not entitled to solatium under the provisions of the Land Acquisition Act, 1894. The Tribunal has committed grave error in granting solatium by applying the provisions of the Land Acquisition Act. Solatium could be made available only to the land losers under the provisions of the Land Acquisition Act. The Inamdars could never be considered to be the land losers under the Land Acquisition Act. In view of this, the Tribunal committed grave error not only in granting the solatium but also in awarding interest at the rate of 9 per cent under the provisions of the Land Acquisition Act.
The claim of the Inamdars for interest at the rate of 15 per cent for the subsequent period under the Land Acquisition Act cannot be accepted. Inamdars are not entitled to claim any such interest at the rate of 15 per cent under the Land Acquisition Act.
The Tribunal has rightly discarded the report of the Valuer Shri SH Vavadia as the same could not have been considered to be the legal evidence for the purpose of determining the compensation. The valuer was not cross examined nor any witness on behalf of the Government was also examined, therefore, since the valuer's report was not proved, same could not be read as evidence, therefore, the Tribunal has rightly ignored and discarded the report of the valuer.
The Tribunal has committed grave error in awarding compensation for 1337 trees though it had already come on record that only 138 trees were actually found on the lands.
The compensation for uncultivated but cultivable lands ad-measuring Acre 2339.17 Gunthas could be only under section 13 of the Act, and, therefore, the Tribunal has rightly assessed the compensation at 3 Times the assessment under the Bombay Land Revenue Code.
The Tribunal committed grave error in awarding Rs.3,39,838.00 for the other properties because there was no cogent evidence on record as regards the particulars of the other properties and in fact, the Inamdars had no claim towards the other properties except the Inam lands. The compensation awarded for the open residential plots in two villages, Mokha and Chhasra was on the basis of comparable sale instances as reflected from the statement of rates at Annexure-F. Since the evidence was already available with the Tribunal,the Tribunal granted compensation at the rate of Rs.4/- for village Mokha and at the rate of Rs.2.25 for village Chhasra. In fact, for Mokha village, the Tribunal has granted the compensation at the higher rate which is required to be reduced so as to bring down at Rs.2.25 per square yard as reflected in the above statement at Annexure-F.
The Tribunal has also committed grave error in awarding Rs.50/- as compensation per tree. At the relevant time, it was decided to award compensation at the rate of Rs.48.75 ps. per tree, then, with the increase of trees, the Tribunal has also increased the rate of compensation which was not permissible. Thus, on both the counts, as regards counting of more trees and awarding of more compensation for the trees, the tribunal has committed error. Under the circumstances, the petition filed by the State is required to be allowed and the petitioner filed by the Inamdars is required to be dismissed and the order passed by the Tribunal is required to be modified in so far as it relates to granting of compensation in respect of open residential plots in village Mokha, compensation awarded for the trees and the compensation for the other properties and awarding of solatium and interest on compensation.
7. Before I deal with the rival contentions of the parties, I may refer some of the relevant provisions of the Act which are reproduced herein below :
2.(1)(ii) "Butadar" means a person who holds heritable and transferable right in land, and who is in possession thereof on payment of land revenue or rent;
2(1)(ix)"inam"
means a tenure commonly known in Kutch as Girasdari Mulgiras, Jagiri, Bhayati, Chakariat, Danodi, Dharmada, Kherati, Varduka, Kamipasa or by other name (including service inam but not including the tenure on which land is held for service as revenue or police patel) under a grant or recognition as a grant.
4. Abolition of inams and sub-inams and rights and incidents in respect thereof.- Notwithstanding anything in any usage, custom, settlement, grant agreement, sanad or in any decree or order of a Court, or in any law for the time being applicable to any inam in Kutch, with effect on and from the appointed day -
(a) all inams and sub-inams shall be and are hereby abolished, and
(b) save as expressly provided by or under this Act, all rights legally subsisting on the said day in respect of the grant or recognition as a grant of such inams or sub-inams and all other incidents of such inams or sub-inams (including any right to hold office or any liability to render service appearing to any inam or sub-inam)shall be and are hereby extinguished.
5. Liability of inam villages and lands held as inam or sub-inam to payment of land revenue.- Subject to the other provisions of this Act,all inam villages, inam lands and sub-inam lands shall be, and are hereby made, liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder and accordingly the provisions therein relating to unalienated land shall apply to all such villages and lands.
10. All public roads etc., situate in inam village or inam land to vest in Government.- All public roads, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, creeks below high watermark, and all standing and flowing water and all unbuilt village site lands, all waste lands, all uncultivated lands (excluding lands used for building or other non agricultural purposes) and pasture lands,mines and minerals, whether discovered or not and whether being worked or not, and all quarries which are situate within the limits of any inam village or inam land shall, except in so far as any rights of any person other than the inamdar may be established in or over the same and except as may otherwise be provided by any law for the time being in force, vest in, and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of, the State Government and all rights held by an inamdar in such property shall be deemed to have been extinguished, and it shall be lawful for the Collector subject to the general or special orders of the State Government to dispose of them as he deems fit, subject always to the right of way and other rights of the public or of individuals legally subsisting.
Explanation. - For the purposes of this section, land shall be deemed to be uncultivated if it has not been cultivated for a continuous period of three years immediately before the appointed day.
11. Rights to trees. - The right to trees specially reserved under the Indian Forest Act, 1927 (XVI of 1927) or any other law for the time being in force, except those the ownership of which has been transferred by the State Government and nothing in this Act shall be in any affect the rights of the State Government to apply the provisions of the Indian Forest Act, 1927 (XVI of 1927) as in force in the State of Gujarat to forests in an inam village or inam land.
13. Compensation to other inamdars. - (1) An inamdar, to whom the provisions of section 12 do not apply shall be entitled to compensation in accordance with the provisions of the next succeeding sub-sections.
(2) In the case of land in respect of which a butadar is entitled to the rights of an occupant under section 7, the inamdar shall be entitled to compensation equivalent to three times the full assessment leviable on such land.
(3) If the Inamdar proves to the satisfaction of the Collector that he had any right or interest in any property referred to in section 10, he shall be entitled to compensation as follows:-
(a) if the property in question is waste, or uncultivated but is cultivable land, or pasture land, the amount of compensation shall not exceed three times the assessment of the land;
Provided that, if the land has not been assessed,the amount of compensation shall not exceed such amount of assessment as whole be leviable in the same village on the same extent of similar land used for the same purpose;
(b) if if the property in question is land over which the public has been enjoying or has acquired a right of way, or any individual has an easement, the amount of compensation shall not exceed the amount of annual assessment leviable in the village for uncultivated land in accordance with the rules made under the Code or if such rules do not provide for the levy of such assessment such amount as in the opinion of the Collector shall be the market value of the right or interest held by the claimant;
(c) if there are any trees for structure on the land, the amount of compensation shall be the market value of such trees or structures, as the case may be;
(d) in the case of minerals the amount of compensation shall be equivalent to the average of the annual income received by the inamdar in respect of minerals during the three years immediately preceding the appointed day.
Explanation. - For the purpose of this section the "market value" shall mean the value as estimated in accordance with the provisions of section 23 and 24 of the Land Acquisition Act, 1894 (I of 1894), in so far as the said provisions may be applicable.
16. Method of awarding compensation for abolition, etc., of rights of other persons in property.- (1) If any person is aggrieved by the provisions of this Act, as abolishing, extinguishing or modifying any of his rights to, or interest in property, and if compensation for such abolition, extinguishment or modification has not been provided for in the foregoing provisions of this Act, such person may apply to the Collector for compensation.
(2) The application under sub-section (1) shall be made to the Collector in the prescribed form, within the prescribed period. The Collector shall, after holding a formal inquiry in the manner provided by the Code make an award determining the compensation in the manner and according to the method provided in section 23 and section 24 of the Land Acquisition Act, 1894 (1) of 1894).
(3) Nothing in this section shall entitle any person to compensation on the ground that any inam land, which was wholly or partially exempt from payment of land revenue, has been under the provisions of this Act, made subject to the payment of full assessment in accordance with the provisions of the Code.
16A.
Extension of time for making application for compensation.- (1) Notwithstanding anything contained in the Gujarat Land Tenures Abolition Laws (Amendment) Act,1965, (Guj. 23 of 1965) the period for making an application for compensation under section15 or 16 is hereby extended upto the end of March, 1967 and accordingly any person claiming compensation under section 12, 13 or 16 may make an application therefor to the Collector before the end of March, 1967.
(2) Where an application for compensation made by any person before the commencement of the Gujarat Land Tenures Abolition Laws (Amendment) Act,1965 (Guj. 23 of 1965) was not admitted by the Collector, such person shall also be entitled to make an application under sub-section (1).
(3) On receipt of an application under sub-section (1), the Collector shall admit the same and all the provisions of this Act shall apply to the application as if it were an application made within the period prescribed under section 15, as the case may be, section 16;
Provided that if the Collector refuses to admit such application, the applicant may make an appeal to the State Government against the order of the Collector within the period of three months from the date of the order and the State Government may pass such order thereon as it may deem fit.
16B.
Further extension of time for making application for compensation.- (1) Notwithstanding the expiry of the period, specified in section 16A for making an application for compensation under section 15 or 16, any person claiming compensation under section 12,13 or 16 may make an application therefor to the Collector before the end of September, 1968.
(2) Where an application for compensation made by any person before the commencement of the Bombay Inams (Kutch Area) Abolition (Amendment) Act,1967 (Guj. 10 of 1967) was not admitted by the Collector, such person shall also be entitled to make an application under sub-section (1).
(3) On receipt of an application under sub section(1), the Collector shall admit the same and all the provisions of this Act shall apply to the application as if it were an application made within the period prescribed under section 15 or as the case may be under section 16.
Provided that if the Collector refuses to admit such application, the applicant may make an appeal to the State Government against the order of the Collector within a period of three months from the date of the order and the State Government may pass such order thereon as it deem fit.
17. Provisions of Land Acquisition Act, 1894, applicable, to award. - Every award made under section 15 or 16 shall be in the form prescribed in section 26 of the Land Acquisition Act,1894, (I of 1894) and the provisions of the said Act shall, so far as may be apply to the making of such awards.
8.In light of the provisions of the Act, it appears that the Tribunal has not committed any error in coming to the conclusion that the compensation for the lands ad-measuring Acre 2339.17 Gunthas which is stated to be uncultivated but cultivable waste land could be fixed and determined by applying the provisions of section 13(3)(a) of the Act. The Tribunal has recorded in its order that the provisions of the Bombay Land Revenue Code for the purpose of assessment were already in force even in respect of the lands of Kutch area. In fact, after the abolition of the Inams, all the lands in question were subjected to assessment under the Bombay Land Revenue Code. Not only this but the Inamdars themselves had asked for compensation at three times the assessment of the land and not as per the market value under any other provisions. Therefore, even if the Inamdars were granted these very lands by the erstwhile Ruler as Inams and exempted them from payment of revenue, that by itself would not make the lands in question not subject to the provisions of the Bombay Land Revenue Code. Section 13(3)(a) clearly provides that the amount of compensation in respect of such uncultivated but cultivable lands or waste lands shall not exceed three times the assessment of land. Proviso to this sub section further provides that if the land has not been assessed,the amount of compensation shall not exceed such amount of assessment as whole be leviable in the same village on the same extent of similar land used for the same purpose. Therefore, even if the Inamdars were exempted from assessment of the lands held by them, or even if the lands of Inamdars were not assessed, the compensation was still required to be fixed on the basis of assessment of the other similar kind of lands in the village and the compensation is not to exceed the said amount of assessment. It is nowhere provided that if there is no assessment of lands, compensation shall be payable at the market value by resorting to proviso of section 23 and 24 of the Land Acquisition Act. In this very section, clause (c) of sub section (3) provides for fixation of compensation at the market value for the trees or the structure on the land. Thus, compensation on the basis of the market value is to be fixed only for the trees and structure on the land and not for the uncultivated but cultivable lands or other waste lands. At this stage, reference to section 16 of the Act is also required to be made because relying on Section 16, Mrs. Mehta, learned counsel for the Inamdars has vehemently urged that such compensation for such land is required to be fixed on the basis of market value under the provisions of section 23 and 24 of the Land Acquisition Act. Section 16 of the Act, as already reproduced, provides for fixation of compensation for any person who is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights or interest in the property and if the compensation of abolition of such right makes such person entitled, may apply to the Collector for compensation and in that case, the Collector may make award determining compensation in the manner and according to the method provided in section 23 and 24 of the Land Acquisition Act. This Section nowhere provides for determination of compensation for the lands of Inamdars. At this stage, it is also required to be noted that the Inamdars had in fact made an application under section 13 and rightly so because the compensation to the Inamdars is to be dealt with as per section 13 of the Act only. Therefore, the contention advanced by the learned counsel Mrs. Mehta for the Inamdars that the Inamdars were entitled to compensation for their above said lands by applying the provisions of section 16 of the Act on the basis of market value cannot be accepted.
9. For residential plots, contention of the learned counsel for the Inamdars is that the Tribunal ought to have awarded Rs.11.25 per square yard. It is required to be noted that the Tribunal has relied on the best available comparable sale instances. For the lands of village Mokha, the Tribunal has applied Rs.4.00 per square yard. If we look at the statement of rates at annexure F which is relied on by Mrs. Mehta, the sale at item no.4 for village Mokha is found to be at the rate of Rs.11.25 ps. Per square yard, however, no reference to registered sale deed nor any kind of document is mentioned. What is mentioned is that the land was purchased by the purchaser to make his own land rectangular and the land is stated to be subject to the court case between the grand father of the purchaser and another person. Therefore, this sale instance does not reveal the real value of the land. In respect of Mokha village, we have another instance at item no.3 where the rate per square yard is found to be Rs.6.75 ps. but it is in respect of Vada Land which is not comparable instance. Likewise, at item no.5 also, rate is Rs.6.75 ps. but it was also in respect of Vada Land. Comparable sale instance of Mokha village in respect of which registered sale deed was executed on 12.6.1956 is found at item no.11 where the rate is stated to be Rs.2.25 ps. per square yard. The Tribunal seems to have given more amount than Rs.2.25 per square yard perhaps taking the average between Rs.2.25 ps. to Rs.6.75 ps. In my view, therefore, no change in such rate for village Mokha is called for.
As regards the rate of Rs.2.25 per square yard for residential open plot of village Chhasra, 2 sale instances are available at annexure F. One is at the rate of Rs.2.25 per square yard and in the second, rate per square yard is not stated but it is stated in the last column that the property consisted of old ruined house [khandar] and sold for Rs.1000.00 on ad.hoc basis. Therefore, no concrete sale instance except the sale instance at item no.1 is available and that is at Rs.2.25 ps. Therefore, the Tribunal has rightly adopted said rate and applied to residential open plot of village Chhasra and no interference is called for applying the said rate of Rs.2.25 per square yard in respect of residential open plot ad-measuring 67729 square yard of village Chhasra.
10. Coming the next contention of learned counsel for the Inamdars is that the Tribunal has committed grave error in awarding compensation only for 1337 trees and in applying only Rs.50.00 as compensation per tree. Learned AGP has replied that the Inamdars had not adduced any other evidence as regards trees, therefore, what was earlier fixed in the first panchkayas, the Inamdars were only entitled for 126 trees at the rate of Rs.48.25 ps. From the record, it appears that out of three Panchkayas, the tribunal thought it fit to rely on the Panchkayas dated 12.1.1969 and came to the conclusion that the trees of the age of more than 10 years were required to be considered. The Tribunal found that 1337 trees were of the age of more than 10 years and the tribunal adopted this figure. The Tribunal applied Rs.50.00 per tree for fixing the compensation. This rate applied by the tribunal is on the basis of the market value of the tree at the relevant time and the number of trees taken is on the basis of the panchkayas dated 12.1.1969. The Inamdars have not adduced any evidence to prove that they were entitled to more compensation. In view of the above, I do not find that any interference is called for on this finding reached by the Tribunal.
11. As regards the contention of learned counsel Mrs. Mehta that there is no proper evaluation of compensation for the other properties, same cannot be accepted in view of the fact that the Mamlatdar has, in his report, clearly described all the other properties in villages to which the Inamdars could claim compensation. All these other properties stated by the Mamlatdar in his report include wells, wind mills, road and path ways, road of village, main ponds, small ponds and other small properties. Report of the Mamlatdar was found by the Tribunal as reliable and there was no other evidence produced by the Inamdar to challenge this part of the report of the Mamlatdar. Neither Mrs. Mehta learned counsel for the Inamdars nor the learned AGP for the State could point out any other evidence so as to make any alteration either of decrease or increase in the compensation in respect of the said other properties, therefore, finding of the Tribunal in respect of the other properties and awarding Rs.3,39,838.00 for the same is also not required to be disturbed.
12. As regards compensation of Rs.132.00 for rights of mines fixed by the Tribunal, it is required to be noted that in this very order, the tribunal at one stage took Rs.132.00 as the yield for one year but ultimately decided Rs.652.00 as compensation towards the rights in respect of the amounts of Inamdars. It is required to be stated that the Mamlatdar has taken note of the income in respect of mines in his report stating that for the years from 1951 to 1956, average income from the mining was Rs.392.00 to Rs.448.44 ps. per year. However, so far as the Inamdars are concerned, they have not produced any evidence disputing such figure or to establish that the Inamdars were entitled to more amount of compensation in respect of the mines. In absence of any other evidence, what was discussed by the Tribunal in its order that Rs.652.00 is required to be fixed for compensation in respect of mines is required to be accepted. Therefore, instead of Rs.132.00, fixed for rights in respect of mines, Inamdars would now be entitled to Rs.652.00.
13. The State has made serious grievance about awarding of solatium at the rate of 30% and interest at the rate of 9% by the Tribunal on the ground that the provisions of the Land Acquisition Act has no application. On the other hand, learned Advocate for the Inamdars has submitted that the Tribunal has also committed error in not awarding further 15% interest as provided in the Land Acquisition Act for the subsequent years and not granting increase in compensation under section 23(1)-A of the Land Acquisition Act. I have already discussed above that the Inamdars were entitled to compensation for uncultivated but cultivable lands ad-measuring A.2339.17 G.as per section 13(3)(a) of the Act and not as per the provisions of section 23 and 24 of the Land Acquisition Act. However, at the same time, the compensation awarded at the market value for residential open plot of 2 villages i.e.Mokha and Chhasra is not disturbed. The compensation for the trees assessed at market value is also not disturbed. Therefore, compensation for market value for the above could be said to be the compensation awarded as per section 23 and 24 of the Land Acquisition Act because for such compensation, the provision is already made in section 16(2) and sec. 13(3)(c). To clarify in a better way, the compensation for residential plots Rs.47548.00 for Mokha village and Rs.1,52,390.00 for Chhasra village can be said to have been awarded under section 16 of the Act, as per sec. 23 and 24 of the Land Acquisition Act and compensation of Rs.66500.00 for trees can be said to have been awarded under section 13(3)(c) of the Act, as per sec. 23 and 24 of the Land Acquisition Act. In view of the above, the Tribunal could not have awarded solatium at the rate of 30% on entire compensation awarded by it except the compensation for open residential plots for two villages and for the trees. The Inamdars shall not be entitled to solatium at the rate of 30 per cent on the compensation for uncultivated but cultivable lands A.2339.17 Gunthas, compensation of Rs.36,800.00 in respect of the land of Butadars, compensation of Rs.3,39,838.00 in respect of other properties and in respect of the compensation of Rs.652.0 for rights of mines. As regards the award of interest, claim of Inamdars for interest at the rate of 15 per cent for subsequent years cannot be accepted because the interest at the rate of 15% can be awarded only by the reference court under the provisions of the Land Acquisition Act in respect of the additional compensation granted by it over and above the compensation granted by the Collector under the Land Acquisition Act. The provisions of section 28 and section 34 of the Land Acquisition Act have got no application to the orders passed by the competent authorities and the Tribunal under the Act. Therefore, claim for interest at the rate of 15% cannot be accepted. As regards the contention on behalf of Inamdars for giving benefit under section 23(1)(A) of the Land Acquisition Act, the benefit under the said section can only be made available to the claimants whose lands are acquired under the Land Acquisition Act. Therefore, such claim of the Inamdars is rejected. However, since Tribunal in its discretion has granted simple interest at the rate of 9%, the same is not required to be disturbed.
In view of the above, the petition filed by the Inamdars being Special Civil Application No. 7702 of 2000 is required to be dismissed except that the Inamdars will be entitled to Rs.652/- instead of Rs.132/- in respect of the rights of mines and the petition filed by the State being Special Civil Application No. 12116 of 2000 is required to be partly allowed.
In the result, Special Civil Application No.7702 of 2000 filed by the Inamdars is dismissed. Special Civil Application No. 12116 of 2000 is partly allowed.It is held and declared that the Inamdars shall not be entitled to solatium at the rate of 30% on the amounts of compensation awarded by the Tribunal, except on the compensation awarded of Rs.47548.00 and Rs.1,52,390.00 for open residential plots of two villages namely Mokha and Chhasra and on compensation of Rs.66,500.00 in respect of trees. Thus, the order passed by the Tribunal in so far as it awarded solatium at the rate of 30 per cent for the compensation of Rs.36,800.00 for two villages of Butadars, for uncultivated but cultivable lands ad-measuring A.2339.17 G. and for compensation of Rs.3,39,838.00 in respect of the other properties and for Rs.132/- for the rights of mines, is hereby quashed and set aside. The Mamlatdar shall now workout the compensation to be given to the Inamdars in light of this judgment and order and shall pass award for compensation after deducting the amount if any paid to the Inamdars towards compensation. Mamlatdar shall complete the above said process within three months from the receipt of the copy of this judgment and order. Rule in Special Civil Application No. 7702 of 2000 stands discharged with no order as to costs. Rule in Special Civil Application No. 12116 of 2000 is made absolute to the extent indicated above with no order as to costs.
(C.L.
Soni,J.) an vyas Top