K. S. Joravarsinhji Godji v. STATE — 1993 DIGILAW 515 (GUJ)

R. K. ABICHANDANI, J. ( 1 ) THE petitioners seek to challenge the decision of the Gujarat revenue Tribunel dated 24th June, 1988 in Appeal No. TEN. A. K. 16/84 in so far as it disallows the claims of the petitioners. ( 2 ) ADMITTEDLY, the petitioners are inamdars, who by "sanad" dated 27th March, 1948 were granted the villages of Chhasra and Mokha, The inam came to be a bolished by the provisions of the Bombay Inams (Kutch Area) Abolition Act, 1958 ( hereinafter referred to as the "act"), The petitioners filed seperate applications under Sec. 13 of the Act on 30th March, 1967 in the prescribed form claiming compensation of Rs. 2,76,020. 95 for each of them under various heads. The Special Mamaltdar awarded a sum of Rs. 43,600. 14ps for agricultural land in which cultivators had butadars and a sum of Rs. 48. 75ps as market value of trees. No compensation was awarded for cultivable waste lands and village site lands. It appears that thereafter the tribunal had remanded the matter on 4. 11. 1982 as adequate opportunity of hearing was not given to the claimants. The mamaltdar thereafter made an order dated 23rd April, 1984, by which, he virtually repeated the earlier award. The petitioners preferred an appeal before the tribunal and the tribunal partly allowing the appeal, awarded compensation equal to three times the assessment granted for cultivable and uncultivated waste lands under Sec. 13 (1) (iii) instead of one time assessment and raised the sum of Rs. 554. 44ps awarded by the mamaltdar to Rs. l,963. 33ps. The Tribunal further ordered that the compensation for 300 acres of "gauchar" lands at the rate of Rs. 1. 50 per acre be paid after proper verification. The compensation for 126 trees was awarded at the rate Rs. 50/ and the sum of Rs. 48. 75 was raised to Rs. 6,300/. Compensation for plots No. 1 and 2 at Village Mokha and plot no. 1 at Village Chhasra, over which the public had rights, was ordered to be paid at the rate of Rs. 1. 50 per acre. No compensation was paid for other plots. Solatium was awarded at the rate of 15% on the market value of trees and on no other item. 1 at Village Chhasra, over which the public had rights, was ordered to be paid at the rate of Rs. 1. 50 per acre. No compensation was paid for other plots. Solatium was awarded at the rate of 15% on the market value of trees and on no other item. Interest at the rate of 12% per annum under the amended provisions of Sec. 23 (1a) of the Land acquisition Act which was claimed was not allowed. The enhanced rate of solatium at 30% under the amended provisions of Sec. 23 (2) of the Land Acquisition Act and interest at the rate of 9% under Sec. 34 of he Act were ordered not 10 be paid till the decision of the Constitutional Bench of Honble Supreme Court was rendered as envisaged in the decision of the Supreme Court, in Munnalal Shivdin Jaiswal vs. State of Maharashtra reported in AIR 1986 SC p. 1896. It was provided that the Deputy Collector shall pass the supplementary award on merits if necessary after the decision was rendered. Thus, the qucs ion of additional interest on solatium was left to the mamlatdar who would make a secondary award after the decision of the Honble Supreme Court, in a matter not connected with these proceedings which involve similar questions, was rendered. ( 3 ) THE learned counsel for the petitioners urged that the petitioners were entitled to get compensation at market value in respect of the unbuilt village site lands which would include buildings, plots and open sites. He submitted that the tribunal had ignored the material evidence on record which had a bearing on the nature of the plots in respect of which the compensation was claimed on the ground that they were unbuilt village site lands. It appears that the tribunal has simply looked at a survey map of DILR for rejecting the claim of the petitioners in respect of village site plots. Once the land was granted by the Ex-ruler by way of inam it was for the inamdars to fix the village site and the correct position may not emerge from the survey map of DILR. The inamdars did lead the evidence to show that certain plots were village site plots and they examined Sardarsinh prabhatsinh Jadeja, who had stated in his deposition that the plot Nos. The inamdars did lead the evidence to show that certain plots were village site plots and they examined Sardarsinh prabhatsinh Jadeja, who had stated in his deposition that the plot Nos. 1 to 34 were situated in the village site and were used for residential purposes. He had referred 10 the fact that it was within the powers of the inamdars to enlarge the village site. The tribunal has totally ignored the important evidence of Sardarsinh Jadeja which had a direct bearing on the question as to whether the lands referred to by the petitioners were village site lands or not. It will be for the tribunal to examine this question in details and ascertain as to whether any of the lands claimed by the petitioners were unbuilt village site lands, which vested in the State Government under the provision of Sec. 10 of the act. For unbuilt village site lands, there is no provision made in 13 of the Act and therefore in view of the provisions of Sec. 16, an application could be made by the petitioners for compensation which would be granted in the manner and according to the method provided by Sections 23 and 24 of the Land Acquisition Act, 1894. In other words, for unbuilt village site, compensation will be payable at the market value of such property. ( 4 ) IT was then contended by the learned counsel appearing for the petitioners that the lands of these two villages 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 appears that the attention of the tribunal was not directed towards 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 square 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. The consequence if the lands were assessed to land revenue would be that they would square 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. The 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 the law. ( 5 ) THE third contention of the learned counsel for the petitioners was as regards the compensation for trees. It appears, as per the record that copy of the inspection notes which were prepared by the Spl. Mamaltdar were not given to the petitioners and reliance same to be placed on such notes in flagrant violation of principles of natural justice. Even though, under the panchnama made by the talati, total number of trees was shown over 1300, the inspection notes had shown only 126 trees. The tribunal ought to have examined his discrepancy in its proper perspective which it failed to do. It will be open to the petitioners to demonstrate before the tribunal the number of trees existing at the relevant lime in respect of which they may be entitled to get compensation. ( 6 ) IT appears that there was claim under the head 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 to 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. ( 7 ) THE Tribunal has instead of deciding the question of additional interest and solatium, left the matter for a supplementary award. The tribunal ought to have itself decided the question in accordance with law. Mere pendency of a matter involving such question before the Supreme Court was no ground for the tribunal to defer the decision on the question. The tribunal ought to have itself decided the question in accordance with law. Mere pendency of a matter involving such question before the Supreme Court was no ground for the tribunal to defer the decision on the question. There was obviously no stay against the proceedings or giving of an award on solatium or additional interest and the tribunal refused to exercise its jurisdiction by not deciding these issues and simply deferring them for the Mamaltdar to give a supplementary award. ( 8 ) IT appears that the award was made by the Mamaltdar on 23rd April, 1982 came to be set aside by the Tribunal and the date of that award could not have been taken into account by the tribunal in deciding as to whether the proceedings were pending or not. Since the award dated 3rd March, 1982 was set aside by the Tribunal. The proceedings were obviously pending before the mamaltdar, until the fresh award came to be made on 23rd April, 1982. By the transitional provisions contained in Sec. 30 of the Land acquisition (Amendment) Act, 1984, it was provided that the provisions of sub-section (1-A) of Section "23 of the principal Act, as inserted by clause (a) of Section 15 of the. amendment Act shall apply and shall be deemed to have applied also to and in relation to every proceeding for the acquisition of land under the principal Act pending on 30th april, 1982 in which no award had been made by the collector before that date. In the instant case, since the award of the mamaltdar dated 3rd March, 1982 was set aside the proceedings were in fact pending on 30th April,1982 and therefore, the provisions of section 23 (1 A) of the Land Acquisition Act were applicable. The Tribunal ought to have considered this aspect in light of the above legal position and assessed the market value wherever payable in consonance with the provisions of Section 23 (1a) of the Land acquisition Act. The Tribunal ought to have considered this aspect in light of the above legal position and assessed the market value wherever payable in consonance with the provisions of Section 23 (1a) of the Land acquisition Act. ( 9 ) AS provided by Section 30 (2) of the Land Acquisition (Amendment) Act, 1984 the provision of sub-section (2) of Section 23 and Sec 28 of the Principal Act, as amended by clause (b) of Section 15 and Section 18 of the Amendment Act respectively, shall apply, and shall be deemed to have applied also to, and in relation to, any award made by the collector or Court in appeal, against any such award under the provisions of the principal act later than 30th April, 1982 and before the commencement of the amended Act. In union of India vs. Raghubir Singh reported in AIR 1989 Supreme Court p. 1933, the supreme Court has held that there can be no doubt that the benefit of the enhanced solatium is intended by Section 30 (2) of the amended Act in respect of an award made by the Collector between 30th April, 1982 and 24th September, 1984. As noticed above, in the instant case the award was made on 23rd April, 1984 by the Mamaltdar. Thus, the petitioners would be entitled to the benefit of the enhanced solatium, on the ratio of the decision in Union of India vs. Raghubir singh (supra ). The tribunal ought to consider this matter in light of the said ratio of the decision of the Supreme Court and decide the claim of the petitioners as regards solatium on that footing. ( 10 ) IT appears that the tribunal has awarded interest on delayed payment only at the rate of 6 per cent per annum. However, the claim of the petitioner at an enhanced rate of interest in light of the provisions of Section 34 of the Land Acquisition Act as amended is required to be considered by the Tribunal which it may do in accordance with law. ( 11 ) THE grievance of the petitioner is that the delayed payment of interest is made in cash instead of adopting the mode of payment prescribed by Section 24 of the Act. It would be open for the petitioners to agitate this point before the Tribunal for its consideration and decision. ( 11 ) THE grievance of the petitioner is that the delayed payment of interest is made in cash instead of adopting the mode of payment prescribed by Section 24 of the Act. It would be open for the petitioners to agitate this point before the Tribunal for its consideration and decision. ( 12 ) IN view of the above discussion, the matter will have to be remanded to the tribunal for disposal in light of the observations made in this judgment and in accordance with law. Rule is made absolute accordingly with no order as to costs. .