(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The State Government has filed this appeal calling in question legality of judgment and award dated 18.11.1988 passed by the learned Assistant Judge, Jamnagar in Land Acquisition Case No. 17 of 1982.
2. The appeal arises on peculiar factual background which can be noted as under:
The respondent claimant was the owner of the land bearing Survey No. 70 situated in the sim of village Galpadar, Taluka Kalavad. Said land of the respondent claimant was required for Laloi Small Irrigation Scheme in the year 1977. Land of the respondent claimant, however, though part of the said project, due to over sight, was not acquired. It is the case of the claimant and which the learned reference court accepted that without any acquisition proceedings, the Government Authorities took possession of his land ad measuring 6 Hector 86 Are 96 Square Meters along with other lands of agriculturists for which acquisition process was undertaken and irrigation project was implemented.
Eventually, the land acquisition officer issued notification under section 4(1) of the Land Acquisition Act, 1894 (“the Act” for short) on 6.7.1981. Sec. 6 notification was issued on 16.12.81 and the award was passed on 6.3.1983 awarding total compensation of Rs.17,174.60 ps.
The claimant, aggrieved by the inadequate compensation paid, sought reference. The reference court, by the impugned judgment and award dated 18.11.1988, partially allowed the reference. The learned Judge granted additional compensation for the land of Rs.34,348.00. He also awarded Rs.10,000.00 for the well situated in the land in question. Thus, by the impugned award, the claimants were awarded total compensation of Rs.44,348.00. The reference court also granted solatium at the rate of 30% on such additional compensation and awarded interest at the rate of 9 per cent and 15 per cent as provided under the Act. Operative portion of the award of the Tribunal reads as under:
“1. The applicant is entitled to get the additional compensation of Rs.44,348.00 (Rupees fourteefour thousands three hundreds fourtee eight rupees only ) with 30 per cent solatium as aforesaid.
2. The opponent is hereby ordered to pay the applicant said amount of compensation of Rs.44,348.00 along with 30 per cent solatium thereon.
3. The applicant is entitled to get 30 per cent solatium all through out minus the amount of solatium paid at the rate of 15per cent on the amount awarded by the special land acquisition officer.
4. The opponent shall also pay the interest to the applicant at the rate of 9 per cent from the dtd.
6.7.81 i.e. date of notification u/s. 4(1) of the said Act upto one year i.e.6.7.82 and thereafter at the rate of 15 per cent till the said amount is realized.
5. The opponent do pay the proportionate costs to the applicant.
6. The rest of the claim made by the applicant is hereby disallowed.”
To enhance the compensation for the land acquired, the reference court noticed that the land acquisition officer had calculated compensation at the rate of Rs.2500.00 per hector which was fixed for acquired land in the same vicinity but for which section 4(1) notification has been issued in the year 1977. The learned Judge, therefore, was of the opinion that such price fixation would not provided any comparison in the present case. The learned Judge noted that the claimants had produced sale instance of the land of the same village sold on 22.1.1981 at the rate of Rs.600.00 per bigha. Such sale deed was at Exh. 23. The reference Court also noted that there were subsequent sale instances of the year 1983-84 where lands of the same village were sold for the prices ranging from Rs.3000.00 to Rs.4000.00 per Bigha. Considering sharp increase in the land price in the region, learned Judge adopted figure of Rs.1000.00 per bigha for the acquired land in relation to date of section 4 notification i.e. 6.7.1981. The learned Judge thereafter formed an opinion that the land in question should be valued at Rs.7500.00 per hector.
3. Appearing for the State Government, learned Asstt. Government Pleader Ms. Moxa Thakkar submitted that the reference itself was not competent since the same was not sought in terms of section 18 of the Act within statutory period.
She further contended that there was no evidence of well in the land. Compensation towards the well therefore was not justified.
The counsel further submitted that fixing market value of the land at Rs.7500.00 per hector was excessive.
4. On the other hand, learned counsel Shri Mehul Shah for the claimant opposed the appeal contending that the possession of the land was taken away in the year 1977, right upto July, 1981 when section 4(1) notification was published, the claimants were deprived of use of the land without any compensation. He therefore submitted that even if there are minor calculation error noticed in the award passed by the reference court, same should be ignored.
5. Having heard the learned Counsel for the parties and having perused the evidence on record, few thing emerge as undisputed. Firstly that in case of other lands of the same area, acquisition proceedings were initiated by issuance of section 4 notification in the year 1977 whereas in the present case, section 4 notification was issued on 6.1.1981. In that view of the matter, the learned Judge was justified in not adopting the market value of the land acquired previously. He was required to assess market value of the land on the date of Notification under Section 4 of the Act. We may recall that the Land Acquisition Officer granted compensation at the rate of Rs.2500.00 per Hector as was given in earlier acquisition without any modification despite there being gap of nearly 4 years between the two acquisitions.
6. On the other hand, the claimant had produced sale deed dated 22.1.1981 wherein one acre of land was sold for Rs.1500.00. Learned Judge also found that there were sale instances of 1983 and 1984 where lands of the same village were sold for Rs.3000.00 and Rs.4000.00 respectively.
7. The learned Judge discarded the evidence produced by the Government. In our opinion, rightly so, since the Talati cum Mantri of village Galpadar had produced sale instances of the lands which were sold in the year 1971 to 1977. Such sale instance, therefore, could not be considered in close proximity to the present land acquisition proceedings.
8. In view of the above evidence on record, the reference court was pleased to grant some increase over and above the sale instance dated 22.1.1981. It is of course true that the learned Judge having fixed the market value of the land at the rate of Rs.1000.00 per bigha and having adopted the conversion of 6 and quarter bigha per Hector, erroneously adopted the value of Rs.7500.00 per hector. However, had this been considerable difference between the two, we might have interfered with such erroneous computation. In the present case, however, we notice that the land acquisition pertained to the period of 1981. More than 30 years have passed in-between. Even after granting for minor error in the computation adopted by the reference court, difference is not significant. We are, therefore, not inclined to interfere only for correction of such error.
9. With respect to the existence of well in question, the reference court found sufficient evidence to this effect, we do not see any reason to take a different view. In addition to the oral testimony of the claimant, he had also produced documents to show that he had taken loan from the Bank to dig well in his field.
10. With respect to the question of possession, the reference court noted that the entire irrigation project was being implemented in the year 1977, work order were also granted at the relevant time. It was on the basis of this evidence that the reference court believed that the possession of the present land also must have been taken in the year 1977. The claimant in his deposition Exh. 26 stated that his land out of Sr. NO. 70 was part of irrigation lake and had thus been submerged. He showed that the possession of the land was taken over in the year 1977 itself. Thus, it becomes clear that though no formal acquisition proceedings were initiated, the land of the claimant formed part of the irrigation scheme as submerged area. Without the claimant losing possession of the land, the irrigation project could not have been completed. In absence of contrary reliable evidence, we are not inclined to disturb this finding of fact also.
11. Before closing we may notice that the Reference Court in the impugned award provided that the claimant shall receive interest at the rate of 9% per annum from 6.7.1981 i.e. the date on which notification under section 4(1) of the Act was published for a period of one year and thereafter at the rate of 15% till the amount is actually realized.
In the present case, we may recall that Reference Court in the impugned judgement had come to the conclusion that possession of the land was already taken over by the Government long before issuance of notification under Section 4(1) of the Act. This finding we have upheld in the present appeal also. Question therefore, would arise as to how to regulate the entitlement of the land loser, possession of whose land was taken away without issuance of notification under the Land Acquisition Act.
12. In case of Smt. Lila Ghosh(dead) through LR v. State of West Bengal reported in AIR 2004 Supreme Court 288, two Bench Judge of the Apex Court observed that a plain reading of section 34 shows that interest is payable only if the compensation which is payable is not paid or deposited before taking possession. It was further observed that the question of payment or deposit of compensation will not arise if there is no acquisition proceeding. In case where possession is taken prior to acquisition proceedings, a party may have a right to claim compensation or interest. But such a claim would not be either under Section 34 or Section 28 of the Act.
13. In case of R.L. Jain(D) by Lrs. v. D.D.A. and others reported in AIR 2004 Supreme Court 1904, three Judge bench of the Apex Court opined that in a case where the landowner is dispossessed prior to the issuance of notification under Section 4(1) of the Act, the Government merely takes possession of the land but the title continues to vest with the landowner. It is fully open for the landowner to recover the possession of the land by taking appropriate legal proceedings. He is therefore, only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. It was further observed that where possession is taken prior to the issuance of the preliminary notification, it would be just and equitable that the Collector may also determine the rent or damages for use of the property to which the landowner is entitled.
14. In subsequent decision in case of Madishetti Bala Ramul (Dead) by Lrs. v. Land Acquisition Officer reported in (2007) 9 Supreme Court Cases 650, two Judge Bench of the Apex Court was dealing with a situation where the Land Acquisition Officer had taken possession on the basis of notification which had subsequently lapsed and second notification was thereafter, issued. It was observed that the respondent acquiring body could not have continued to hold possession of the land despite abatement of the proceeding under the Land Acquisition Act. In that view of the matter, for the interregnum period ,the Apex Court provided that :
“20. In the peculiar facts and circumstances of the case, although the proper course for us would have to remand the matter back to the Collector to determine the amount of compensation to which the Appellants would be entitled for being remained out of possession since 1979, we are of the opinion that the interest of justice would be met if this appeal is disposed of with a direction that additional interest @ 15% per annum on the amount awarded in terms of award dated 02.01.1999 for the period 16.03.1979 till 22.12.1991, should be granted, which, in our opinion, would meet the ends of justice.”
15. In a recent decision in case of Special Land Acquisition Officer v. Karigowda and others reported in (2010) 5 Supreme Court Cases 708, Division Bench of the Apex Court referring to and relying on decision in case of R.L. Jain(D) by Lrs. (supra) and observed as under “101 As is evident from the above dictum of the Court, despite dispossession, the title continues to vest in the land owners and it is open for the land owners to take action in accordance with law. Once notification under Section 4 (1) of the Act has been issued and the acquisition proceedings culminated into an award in terms of Section 11, then alone the land vests in the State free of any encumbrance or restriction in terms of provisions of Section 16 of the Act. The Court, in situations where possessions has been taken prior to issuance of notification under Section 4(1) of the Act, can direct the Collector to examine the extent of rent or damage that the owners of land would be entitled to the provisions of Section 48 of the Act would come to aid and the Court would also be justified in issuing appropriate direction. This was the unequivocal view expressed by the Court in R.L. Jain case (supra) as well. This legal question is no more open to controversy and stands settled by this Court. We would follow the view taken and accept the contention of the appellant- State that the Reference Court as well as the High Court could not have granted any interest under the provisions of the Act, for a date anterior to the issuance of Notification under Section 4 of the Act. However, following the dictum of the Bench, we direct the Collector to examine the question of payment of rent/damages to the claimants, from the period when their respective lands were submerged under the back water of the river, till the date of issuance of the Notification under Section 4(1) of the Act, from which date, they would be entitled to the statutory benefits on the enhanced compensation.”
16. The case is an old one. The land loser has been granted certain interest but no compensation anterior to Section 4(1) notification. In totality of facts and circumstances of the case, we would not like to modify the decree. We clarify that formula adopted by the Reference Court may not be strictly in conformity with the view expressed by the Apex Court in above noted decisions and statutory interest flowing from sections 28 and 34 of the Land Acquisition Act, may not be available to a landowner when the land's possession may have been taken over before issuance of Section 4(1) of the Act for such period. However, his right to seek rent or compensation for the period during which possession of the land was retained by the Government is well recognized.
17. In above facts, the appeal is dismissed with costs.
18. R&P to be transmitted to the trial court immediately.
(Akil Kureshi,J.) (C.L. Soni,J.) an vyas/raghu