State of Gujarat and Another vs Gadhiya Rajusinh Madhusinh

J.M. Panchal, J.—Admitted. Mr. Jitendra M. Patel, learned Counsel, waives service of notice on behalf of the claimant/claimants in each appeal. Having regard to the facts of the case,the appeals are taken up for final disposal today.

What is challenged in these appeals filed u/s 54 of the Land Acquisition Act, 1894 (''the Act'' for short) read with Section 96 of the Code of Civil Procedure, 1908, is the legality of common judgment and award dated January 9,2006, rendered by the learned 2nd Additional Senior Civil Judge and Judicial Magistrate, First Class, Himatnagar in Land Reference Case Nos. 1650 to 1851 of 1989, by which the claimants have been awarded additional compensation at the rate of Rs. 118/- per per sq.mt. for the constructed buildings acquired as well as additional compensation at the rate of Rs. 28/- per sq.mt. for their acquired open lands, over and above the compensation awarded to them at the rate of Rs. 1.75 Ps. per sq,mt. by the Special Land Acquisition Officer by his award dated March 5,1973.

A proposal was made to the State Government to acquire constructed buildings and lands appurtenant thereto the lands of village Musar, Taluka Idar, District Sabarkantha for the public purpose of Dharoi Jalagar Yojana. On scrutiny of the said proposal the State Government was satisfied that the constructed buildings and open lands appurtenant thereto of village Musar specified therein were likely to be needed for the said public purpose. Therefore, a Notification u/s 4(1) of the Act was issued which was published in the Official Gazette on April 1,1972. After publication of notification u/s 4(1) of the Act, necessary inquiry u/s 5A(2) of the Act was made by the Special Land Acquisition Officer and a report was submitted to the State Government. On the basis of the said report, the State Government was satisfied that the constructed buildings and open land appurtenant thereto of village Musar, which were specified in the Notification published u/s 4(1) of the Act were needed for the public purpose of Dharoi Jalagar Yojana. Therefore, a declaration u/s 6 of the Act was made, which was published in the Official Gazette on June 28,1972. The interested persons were thereafter served with notices for determination of compensation payable to them. The claimants appeared before the Special Land Acquisition Officer and claimed compensation at the rate of Rs. 50/ per sq.mt. for the acquired lands as well as Rs. 300/- per sq.mt. for the constructions made thereon. However, having regard to the materials placed before him, the Special Land Acquisition Officer by his award dated March 5,1973 offered compensation to the claimants at the rate of Rs. 1.75 Ps. per sq.mt. The claimants were of the opinion that the offer of compensation made by the Special Land Acquisition Officer was totally inadequate. Therefore, they submitted applications u/s 18 of the Act requiring the Special Land Acquisition Officer to refer their cases to the Court for the purpose of determination of just amount of compensation payable to them. Accordingly, the references were made to the District Court, Sabarkantha at Himatnagar, where they were numbered as Land Reference Case Nos. 1650 to 1851 of 1989.

On behalf of the claimants witness Rajusingh Madhusingh was examined at Exh.14. It may be mentioned that he was claimant in Land Acquisition Reference Case No. 1757 of 1989. The witness mentioned in his testimony that each claimant had constructed residential house etc. for his own purpose and incurred heavy expenditure. It was also mentioned by him that each claimant was deriving substantial income from the sale of agricultural produces which were being raised on the open lands. After mentioning that his village was fully developed, it was asserted by the said witness that the claimants were entitled to compensation at the rate of Rs. 400/- per sq.mt. so far as constructed buildings were concerned and at the rate of Rs. 50/- per sq.mt. for the open lands appurtenant to constructed buildings were concerned. According to this witness, reference applications were submitted by the respective claimant in the Office of Collector. In his cross-examination by the learned Counsel for the acquiring authorities, the suggestion made to him that only Kachha houses were constructed on the lands acquired was emphatically denied by him.

On behalf of the acquiring authorities, witness Kamleshbhai Jethabhai Rathod, who was then discharging duties as Deputy Collector, Land Acquisition and Rehabilitation, Dharoi Yojana, Himatnagar was examined at Exh.27. What was mentioned by the said witness before the court was that before determining the amount of compensation payable to the claimants, the Special Land Acquisition Officer had taken into consideration all the relevant factors and, therefore, the claimants were not entitled to enhanced compensation. According to this witness, the claimants were paid amount of compensation as determined by the Special Land Acquisition Officer by cheques dated March 6,1973, after which possession of the lands acquired was taken by the Government. The witness further stated that as per law, the claimants were required to file reference applications within a period of 42 days from the date of the award but the applications for reference were not filed within a period of 42 days by the claimants and were received by his office only on October 18,1989, which were subsequently forwarded to the Court. The witness claimed in his testimony that the reference applications submitted by the claimants were time barred and deserved to be dismissed. The witness referred to reference applications on the basis of which Land Acquisition Case Nos. 1263 to 1418 of 1989 were registered and claimed that in those cases also the reference applications were rejected as time barred by judgment dated March 31,2005 and, therefore, in the instant cases also the reference applications should be dismissed as time barred.

In his cross-examination by the learned Counsel for the claimants, it was admitted by him that he had reported for duty as Deputy Collector in the office of Dharoi Project only on March 18,1989 and that during the years 1972-73 he was prosecuting his studies. He also admitted that he had no personal knowledge regarding proceedings which were initiated for acquiring constructed buildings and the lands appurtenant thereto from village Musar in the years 1972-73-74. He further stated that it was mentioned in the record of the instant cases that all the claimants had accepted the payments. After looking to the record, the witness informed the Court that the award was made by the Special Land Acquisition Officer on March 5,1973 whereas reference applications were made on April 4,1973. According to him no particulars in his office were available to indicate as to when the reference applications dated April 4,1973 were received in his office nor any inward number was recorded while receiving the reference applications. The witness admitted that no other documentary evidence was available with him except the documents mentioned in list Exh.26 to show that the reference applications were time barred.

On behalf of the acquiring authorities another witness, namely, Mr.Kanaiyalal Pitambardas Gurjar, who was then discharging duties as Deputy Collector, Narmada Project Rehabilitation Scheme, Vadodara was examined at Eh.34. According to the witness he was discharging duties as Special Land Acquisition Officer, Dharoi Project from December 14, 1983 to October 12,1986. It was stated by him that before he reported for duty as Special Land Acquisition Officer, Dharoi Project on December 14, 1983 the reference applications on the basis of which Land Reference Cases Nos. 1654/89 to 1803/89 came to be registered were received on January 28, 1983. According to this witness,those reference applications were rejected by an order dated April 5, 1984 as they were found to be time barred. The order rejecting those applications as time barred is at Exh.35. The witness informed the Court that the particulars of applications for reference received in his office were entered in the Register and numbered. In his examination-in-chief the witness mentioned that no inward numbers nor work-sheet numbers of the employees concerned were entered in the register at the time of receipt of applications in the instant case and, therefore, he was of the opinion that the applications were of suspicious nature and were not genuine. The witness stated before the Reference Court that the applications for reference dated January 28,1983 were received in the office before he was transferred to the office at Himatnagar.

In his cross-examination by the learned Counsel for the claimants, the witness mentioned that he had not discharged duties in the office of Dharoi Project before December 14, 1983. According to him the record prior to the year 1983 was not available in the office and, therefore, he could not peruse the same. After looking to the contents of Exh.65, the witness mentioned that no date was mentioned below the order drawn on Exh.65. The witness admitted that no signatures were appended by any officer at the time of recording numbers of the reference applications received. The witness mentioned that by order Exh.35 in all 67 applications were rejected as time barred and admitted that before drawing order on Exh.35 none of the applicants or any one on their behalf was heard. The suggestion made by the learned Counsel for the claimants that the order passed below Exh.35 was never communicated to the claimants was denied by him. The suggestion made on behalf of the claimants that the consent mentioned in Exh.35 related to the lands but did not refer to the buildings acquired was admitted by him. It was also admitted by him that as no inward or outward register was produced, the award relating to the buildings acquired in the instant case was made on March 5, 1973. In cross-examination, he had to admit that the reference applications on the basis of which Land Reference Case No. 1650/89 was registered was dated April 4,1973. He also admitted that he had not rejected the applications dated April 4,1973 seeking references. The witness admitted that he had no personal knowledge regarding the buildings acquired in the instant case from village Musar. Though this witness had claimed in his examination-in-chief that he had rejected certain applications as time barred, he had to admit that applications dated April 4,1973 on the basis of which Land Reference Case No. 1650/89 was registered was not rejected by him.

In support of their claim for enhanced compensation the claimants produced before the Reference Court judgment of the High Court in First Appeal Nos. 859 to 884 of 1984, which indicated that the buildings and lands were acquired from adjoining village Nakod pursuant to publication of notification issued u/s 4(1) of the Act in the Official Gazette on September 14, 1972 and the High Court had awarded compensation to the claimants at the rate of Rs. 150/- per sq.mt. for houses which are constructed with bricks and limes.

On appreciation of evidence adduced by the parties, the Reference Court was of the opinion that the reference applications submitted by the claimants were not time barred. According to the Reference Court the judgment of the High Court awarding compensation to the claimants, whose constructed houses were acquired from village Nakod, was a relevant piece of evidence for the purpose of determining the market value of the constructed houses and lands acquired in the instant case. Placing reliance on the said judgment, the Reference Court has awarded additional compensation to the claimants at the rate of Rs. 118/- per sq.mt. for their acquired constructed houses as well as Rs. 28/- per sq.mt. for open lands by the impugned award, giving rise to the above numbered appeals.

This Court has heard Ms. Mini Nair, learned Assistant Government Pleader for the appellants and Mr. J.M. Patel, learned Counsel for the claimants at length and in great detail. This Court has also considered the paper book supplied by the learned Counsel for the claimants, which includes oral as well as documentary evidence adduced by the parties before the Reference Court.

The contention that the references were time barred and, therefore, the judgment impugned in the appeals should be set aside has no substance. The evidence of the witnesses examined by the appellants, which is reproduced earlier, makes it more than clear that no cogent and reliable evidence could be adduced by the appellants to establish that the reference applications were submitted in the office of the Special Land Acquisition Officer in the year 1988. It is relevant to notice that none of the applications dated April 4,1973 produced by the claimants was signed by any officer of the appellants at all, nor any inward number was indicated thereon. It is relevant to notice that these applications were forwarded by Deputy Collector, Land Acquisition and Rehabilitation, Dharoi Project, Himatnagar to the Court on October 18,1988. Before forwarding those applications to the Court on October 18,1988 no order was passed on most of the applications by the appellants rejecting those applications as time barred. No inward Register or outward Register relating to the year 1973 could be produced before the Court by the appellants,nor the concerned Deputy Collector, who was discharging duties in the office in the year 1973 could be examined by the appellants. It is relevant to notice that witness Rajusinh Madhusinh, who was examined on behalf of the claimants at Exh.14, was cross-examined in detail. However,the statement made by him that the reference applications were made by the claimants on April 4,1973 was not challenged on behalf of the appellants at all, nor it was suggested to him that applications dated April 4,1973 were presented in the office in the year 1988 after the period of limitation was over. What is relevant to notice is that from the testimony of witness Kamleshbhai Jethabhai Rathod examined by the appellants at Exh.27 it becomes evident that in the year 1972-73 he was prosecuting his studies and had no personal knowledge at all about the proceedings initiated for acquiring constructed houses and lands from village Musar. The said witness could not produce any inward or outward register relating to the year 1973 in support of the claim of the appellants that the reference applications were time barred, nor the said witness could produce any inward or outward Register to establish his claim that the applications were received in his office in the year 1988. It is relevant to notice that the appellants could not examine the officer, who was discharging duties in the year 1988 and witness Kamleshbhai Jethabhai Rathod had deposed before the Court only on the basis of certain unwarranted inferences and assumptions made by him. Similarly, witness Kanaiyalal Pitambardas Gurjar examined by the appellants at Exh.34 could not produce evidence to show that all the reference applications, on the basis of which Land Reference Case Nos. 1654 to 1803 of 1989 were registered, were dismissed by the Deputy Collector as time bared. His evidence would indicate that he was serving in the office from December 14, 1983 to October 12,1986 but could not produce any order of any officer rejecting all the applications dated April 4, 1973 submitted by the claimants as time barred. As noticed earlier, this witness in his cross examination has admitted that reference applications dated April 4, 1973 on the basis of which Land Reference Case No. 1650/89 and others were registered were not rejected by him at all. The witness had produced record at Exh.35 which was relating to acquisition of agricultural lands of village Musar. The claim advanced on behalf of the appellants that the applications for reference made by the claimants were rejected in the year 1984 could not be substantiated at all.

Section 18 of the Act inter alia provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. As per Sub-section (2) of the said Section, the application has to contain the ground on which objection to the award is taken. What is relevant to notice is that Section 19 requires that the Collector has to forward statement to the court as required by the said Section. In making the reference, the Collector has to state for the information of the Court the situation and the extent of the land with particulars of any tress, buildings or standing crops thereon etc. As noticed earlier, the reference applications dated April 4,1973 were never rejected as time barred nor any inward or outward Register could be produced by the appellants either relating to the year 1973 or the year relating to 1988. Under the circumstances, the conclusion drawn by the Reference Court that the reference applications were filed within time cannot be regarded as erroneous. It is relevant to notice that the reference applications which were submitted by the claimants on April 4,1973 were allowed to remain un-attended in the office of the concerned officer and were forwarded to the Court for the first time in the year 1988. It is obvious that in view of the provisions of the Act, the appellants are liable to be saddled with interest and, therefore, in order to avoid liability and cover up lapses, a contention was raised by the appellants that the reference applications were time barred. On re-appreciation of evidence adduced by the appellants, this Court finds that the reference applications were not time barred at all. Cogent and convincing reasons have been recorded by the Reference Court for the purpose of coming to the conclusion that the reference applications submitted by the claimants were not time barred. Those reasons are to be found in paragraph Nos. 7 to 11 of the impugned judgment, with which this Court fully concurs. Under the circumstances, the plea raised by the learned Counsel for the appellants that the reference applications were time barred and, therefore, the impugned award should be set aside, cannot be accepted and is hereby rejected.

The second contention raised by the learned Counsel for the appellants that the Reference Court committed error in not taking into consideration the extracts produced by the appellants before the Land Acquisition Officer indicting sale transactions which had taken place during last five years in the village Musar has also no substance and cannot be accepted. In Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and Another, t is held that Reference u/s 18 of the Act to the Court is not an appeal and material relied on by the Acquisition Officer in his award cannot be relied upon unless the same is produced and proved. What is ruled by the Supreme Court in the said decision is that the award of the Land Acquisition Officer cannot be treated as a Judgment of the trial court, open or exposed to challenge before the Court hearing the Reference because it is merely an offer made by the Land Acquisition Officer and the material utilized by him for making valuation cannot be utilised by the Court unless produced and proved before it. According to the Supreme Court it is not the function of the Court to sit in appeal against the award, approve or disapprove its reasoning or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court. Applying the principles laid down by the Supreme Court in the above quoted decision to the facts of the instant case, this Court finds that material relied on by the Land Acquisition Officer in his award was neither relied upon by any of the witnesses examined by the appellants nor produced and proved before the Reference Court. Therefore, the Reference Court was not expected to refer to the same while determining the market value of the constructed houses and lands acquired in the instant case. On the facts and in the circumstances of the case, this Court is of the opinion that the impugned award is not liable to be interfered with on the ground that the material relied on by the Special Land Acquisition Officer in his award was not taken into consideration by the Reference Court.

The last contention that judgment of the High Court relating to acquisition of houses and lands from village Nakod should not have been relied upon for the purpose of enhancing compensation payable to the claimants and, therefore, the impugned award should be set aside is also devoid of merits. It is relevant to notice that during the course of hearing of reference applications the claimants had produced the judgment of the High Court rendered in First Appeal Nos. 859 to 884 of 1984 for consideration of the Reference Court because according to the claimants it was a relevant piece of evidence for the purpose of determining market value of the houses and lands acquired from village Musar. It deserves to be mentioned that witness Rajusinh Madhusinh, who was examined on behalf of the claimants, asserted in his testimony recorded before the Reference Court that the distance between his village Musar and village Nakod was about one and half kilometer. It was also mentioned by the said witness that for Dharoi Reservoir Project, lands and buildings were acquired from village Nakod and that judgment of the High Court rendered with reference to lands and buildings acquired from village Nakod was a relevant piece of evidence. What was claimed by the said witness was that on the basis of the judgment of the High Court, the claimants were entitled to get compensation at the rate of Rs. 400/- per sq.mt. for constructed houses and Rs. 50/- per sq.mt. for open lands. Though this witness was cross-examined at length by the learned Counsel for the appellants, the abovementioned statements made by him in his examination-in-chief were not controverted at all and were allowed to go unchallenged. Therefore, this Court is of the opinion that the Reference Court did not commit any error in placing reliance on the decision of the High Court relating to compensation paid to the claimants whose constructed houses and lands situated at village Nakod were acquired for the purpose of determining market value of the buildings and lands acquired in the instant case. The judgment of the High Court was produced by the claimants at Exh.22. It indicates that pursuant to publication of Notification issued u/s 4(1) of the Act, which was published in the Official Gazette on September 14, 1972, the houses and open lands of village Nakod, Taluka Idar were acquired as they were coming under submergence due to construction of Sabarmati Reservoir. By award dated July 15,1974, the Special Land Acquisition Officer had offered compensation to the claimants at the rate of Rs. 1.80 Ps. per sq.mt. for new tenure lands and Rs. 2/- per sq.mt. for old tenure lands. Feeling dissatisfied with the said offer, the claimants had sought references. Accordingly references were made to the District Court, which were registered as Land Acquisition Case Nos. 12/76, 14/76 etc. On the basis of the evidence adduced by the parties therein the Reference Court had awarded compensation to the claimants at the rate of Rs. 130/- per sq.mt. for the houses, which were built of cement and bricks and Rs. 100/- per sq.mt. for the houses built of lime and bricks. Feeling aggrieved by the determination of compensation made by the Reference Court, the claimants had filed First Appeal Nos. 859 to 884 of 1984 for enhancement of compensation. The High Court by judgment dated October 3,1997 held that the claimants were entitled to compensation at the rate of Rs. 150/- per sq.mt. for the acquired houses which were built of bricks and cement whereas the claimants, who had constructed their houses with bricks and limes, were entitled to compensation at the rate of Rs. 120/- per sq.mt. Mr.J.M.Patel, learned Counsel for the claimants, has stated at Bar that the judgment dated October 3, 1997 rendered in First appeal Nos. 859 to 884 of 1984 has attained finality as the same was not challenged by the acquiring authorities before higher forum. The statement made at the Bar by the learned Counsel for the claimants is not disputed by the learned Assistant Government Pleader for the appellants. On the facts and in the circumstances of the case, this Court is of the opinion that the Reference Court did not commit any error in placing reliance upon the judgment of the High Court for the purpose of determining market value of the houses and lands acquired in the instant case. The calculation of compensation made by the Reference Court, which is found payable to the claimants, is not demonstrated to be erroneous.

The above discussion makes it evident that this Court does not find any substance in any of the three contentions raised on behalf of the appellants. Further the Schedule attached to the impugned award indicates that in some of the cases the Reference Court had awarded compensation of Rs. 9701/-, Rs. 8968/-, Rs. 8805/- etc. and,therefore, some of the appeals filed are liable to be dismissed on the ground of smallness of the claim involved therein. On over all view of the matter, this Court finds that a just award is passed by the Reference Court and no ground is made out by the learned Counsel for the appellants to interfere with the same in the instant appeals. The appeals, therefore, which are devoid of merit, deserve to be dismissed.

For the foregoing reasons, all the appeals fail and are dismissed. There shall be no orders as to costs. The Registry is directed to draw decree in terms of this judgment, immediately.