STATE OF GUJARAT v. Malek Sajan,rajkot — 1998 DIGILAW 485 (GUJ)

S. K. KESHOTE, J. ( 1 ) AS this group of Appeals has arisen from the common judgment and award of the IInd Extra Assistant Judge, Rajkot District at Gondal made on 1st August, 1991 and pertains to one and the same land acquisition Notification under Sec. 4 of the land Acquisition Act, 1894, the same are being taken up for hearing together and are being disposed of by this common order. ( 2 ) THE award challenged in this case is of 1st August, 1991 and the Appeals were filed before this Court on 4th April, 1992. After filing of these Appeals, they have come up for admission before this Court after more than six years. The learned counsel for the appellant urged that these Appeals were barred by 131 days and this Court has taken long time to dispose of the applications for condonation of delay and that is the reason that these Appeals have come up for admission after so many years. From the proceedings of this case, I find that after filing of the Appeals, the applications for condonation of delay have been placed in the Court for orders after more than two years and some months. After 13th July, 1994, the matter has come. up on the Board on 29th April 1997, i. e. , about three years. I do not find anything on the record as to for what reasons and grounds the registry has not placed those applications in the Court for orders for such a long time. Not only this, after 24th April, 1997, the Civil Applications for condonation of delay, were placed in the Court on 17. 1. 1998. So at all these stages, delay in listing of the matters is there. ( 3 ) THE lands of the respondent-claimants situated in the sim of village Jogapipali (Dhoridhar), Taluka Jam-Kandorna of Rajkot District were notified to be acquired for fofal Irrigation Scheme under the provisions of the Land Acquisition Act, 1894. The notification under Sec. 4 of the Act, 1894 was published in the Government Gazette on 22. 2. 1973 and the Notification under Sec. 6 was published on 6. 9. 1973. After following the necessary procedure prescribed under the Act, 1894, the Land Acquisition Officer, under its award dated 29th March, 1975 awarded compensation to the claimants- respondents at the rate of Rs. 2. 1973 and the Notification under Sec. 6 was published on 6. 9. 1973. After following the necessary procedure prescribed under the Act, 1894, the Land Acquisition Officer, under its award dated 29th March, 1975 awarded compensation to the claimants- respondents at the rate of Rs. 60/- per are for non irrigated lands and at the rate of Rs. 80/- per are for irrigated lands. The claimants-respondents feeling dissatisfied with this award prayed for making of the reference under Sec. 18 of the Act, 1894 to the Civil Court which was granted and the Civil Court, under the impugned award, relying on the previous decision, has awarded the compensation to the appellants therein at the rate of rs. 100/- per are for non irrigated lands and at the rate of Rs. 130/- per are for irrigated lands. In addition to the award of the amount of compensation, the Reference Court appears to have also awarded compensation for well to the claimants. Hence these appeals before this Court by the appellant. ( 4 ) THE learned counsel for the appellant made threefold contentions in these Appeals. Firstly, it is contended that the award of compensation for the well as awarded to some of the claimants-respondents in these matters is contrary to the well settled proposition of law as laid down by the Apex Court. It is next contended that the Reference Court has blindly relied on its previous decision. It has not considered the fact that while relying on the decision of earlier reference it has to evaluate the facts regarding distances between two lands which are the subject matter of the previous decision and the subject matter of the present case, the fertility of the land and other antecedents and surrounding circumstances. Lastly, it is contended that the Reference Court has committed serious illegality in awarding interest on solatium. ( 5 ) I have given my thoughtful considerations to the submissions made by the learned counsel for the appellant. ( 6 ) OUT of these five appeals, I find that in three Appeals, the amount of additional compensation allowed with solatium by the Reference Court is less than Rs. 20,000/ -. In view of the two Division Bench decisions of this Court, namely (i) in the case of Special land Acquisition Officer vs. Shantaben, Chhitubhais widow and Ors. ( 6 ) OUT of these five appeals, I find that in three Appeals, the amount of additional compensation allowed with solatium by the Reference Court is less than Rs. 20,000/ -. In view of the two Division Bench decisions of this Court, namely (i) in the case of Special land Acquisition Officer vs. Shantaben, Chhitubhais widow and Ors. , in Civil application No. 7876 of 1997 and allied matters, decided on 10. 9. 1997, and (ii) in the case of State of Gujarat vs. Patel Pujabhai Nathabhai, in Civil Application No. 8700 of 1997 in First Appeal No. 2579 of 1997, and allied matters decided on 21. 4. 1998 these three Appeals deserve no admission. Be that as it may, as in the two Appeals, the amount of additional compensation with solatium awarded by the Reference Court is more than rs. 20,000/-,the merits of the matter have to be gone into. The Reference Court has enhanced the amount of compensation as awarded by the Land Acquisition Officer relying on its previous decision which has been given in respect of the lands which have been acquired for the same purpose and situated in village Bhadra. A copy of the previous judgment has been submitted on the record of this Reference before the Civil Court at Ex. 17. Under that award, the compensation has been awarded at the rate of Rs. 130/- per are for irrigated lands and at the rate of Rs. 100/- per are for non irrigated lands. It has come on the record of the Reference Court that the sim of village Jogapipli (Dhoriadhar) and that of village Bhadra touch each other. It has also come on the record in evidence that the land of both these villages are similar in quality. The lands of the agriculturists belonging to village Bhadra were also acquired for the fofal Irrigation Scheme. Relying on the evidence of the claimants produced in the Reference Court the aforesaid facts have been taken. As against the evidence which has been produced by the claimants and accepted by the Reference Court, the appellant has neither examined any witness nor has produced any documentary, evidence. In the previous case, the Land Acquisition Officer awarded compensation to the claimants therein at the rate of Rs. 80/- per are for irrigated lands and rs. As against the evidence which has been produced by the claimants and accepted by the Reference Court, the appellant has neither examined any witness nor has produced any documentary, evidence. In the previous case, the Land Acquisition Officer awarded compensation to the claimants therein at the rate of Rs. 80/- per are for irrigated lands and rs. 60/= per are for non irrigated lands as what it has been awarded by the said officer in the present case. This fact goes to show and establish that the Land Acquisition Officer has also considered these two lands to be of same fertility, quality and within reasonable proximity of distance. On the record of the Reference Court, no evidence has been adduced from the side of the respondent to show that the lands in dispute are inferior in quality than the lands situated in village Bhadra in respect to which award Ex. 17 has been made by the Civil Court. The learned Reference Court has not committed any illegality in drawing inference of the fact that the lands which were subject matter of the previous decision and which are subject matter of these appeals are of similar quality on the basis of admitted fact that the Land Acquisition Officer in both the cases has assessed and awarded same price. The learned counsel for the appellant does not dispute that the previous decision is a relevant and material piece of evidence and it can be taken into consideration for the purpose of assessing just, adequate and reasonable amount of ompensation to be paid to the claimants. In view of this position of law, the factual position as borne out from the uncontroverted evidence produced by the claimants and in view of the fact that the Land Acquisition Officer himself assessed the same price of the lands in both the matters, the reliance placed by the Reference Court on its previous decision to assess just, adequate and reasonable amount of compensation to be paid to the claimants-respondents cannot be said to be illegal or arbitrary. The award cannot be said to be perverse or arbitrary on the face of it which calls for interference of this court. After reading the award impugned in these Appeals, I am satisfied that the reference Court while relying on its previous decision, has kept in mind, the necessary factors which are to be taken care of. The award cannot be said to be perverse or arbitrary on the face of it which calls for interference of this court. After reading the award impugned in these Appeals, I am satisfied that the reference Court while relying on its previous decision, has kept in mind, the necessary factors which are to be taken care of. The lands of the two villages were acquired for the same purpose and the Land Acquisition Officer has also assessed the same value for both the lands and the Reference Court has rightly reached to the conclusion to award to the claimants-respondents in this case, the compensation at the rate at which it was assessed by the Civil Court in its previous award Ex. 17. ( 7 ) SO far as the other two contentions raised by the learned counsel for the appellant are concerned, it is suffice to say that the learned counsel for the appellant does not dispute that as per the earlier law as it stood, the Reference Court was within its competence to award compensation for well also. The development of this law is no doubt there and the Apex Court in the year 1997 has held that the compensation for well could not be awarded in the Land Acquisition Reference cases. Similar is the legal position with respect to awarding the interest on solatium. The law as it stands today no doubt supports this contention made by the learned counsel for the appellant, but this court cannot be oblivious of the fact that this award has been passed in the year 1991 and these Appeals even were not listed for admission for all these years. In the year 1991, when the award has been passed by the Reference Court, the law as it stood, permitted it to grant compensation for the well as well as to award interest on solatium. It is a different matter that these appeals were lying pending in this Court for admission. Otherwise, in case in the year 1991 or 1992, the Appeals would have been admitted, then certainly much before the later decision of the Apex Court having been pronounced, these appeals would have been decided by this Court and in the presence of law as it would have existed at the relevant time, no interference would have been made in the award. Interference in this matter on these two grounds is also not called for. The Notification under Sec. 4 of the Act, 1984, is of the year 1972 and final award has been passed by the civil Court in the year 1991. Taking into consideration the fact that this acquisition is of 26 years back and coupled with the fact that these Appeals were not listed for admission by the appellant, possibility of execution of the award by the respondent-claimants and realization of the amount of additional compensation cannot be overruled. On these grounds also, no interference is called for in these Appeals. The learned counsel for the appellant, on being asked by the Court, is unable to say that the award has not been executed so far. The claimants are the agriculturists and their only land has been taken for the public purpose and it is difficult to accept and believe that for such a long time, they will wait for execution of the award. Filing of the Appeals do not automatically act as stay of the operation of the award. Reference in this respect may have to the provisions of order XXXXI, Rule 5 of the Civil Procedure Code, 1908, which provides that the Appeal shall not operate as a stay of proceedings under a decree or order appealed from, except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. However, this rule empowers the appellate Court to stay the execution of decree made for sufficient cause. In these appeals, the appellants have not filed any application for stay of execution of the impugned decree. No such civil application is there on the record of these Appeals nor any such civil applications have been brought to my notice by the learned counsel for the appellant. Even if on these two grounds the Appeals are allowed and the amount of compensation in these three Appeals is reduced, I have my own reservations whether the state Government will be in a position to recover that amount from the respondents-claimants. Even if on these two grounds the Appeals are allowed and the amount of compensation in these three Appeals is reduced, I have my own reservations whether the state Government will be in a position to recover that amount from the respondents-claimants. Recovery of difference of amount of additional compensation in the case of acceptance of these Appeals even if may be there but the costs thereof to the government would be much more than the amount of difference. ( 8 ) TAKING into consideration the totality of the facts of this case, I do not consider it to be even in the interest of the appellant to admit these three Appeals for consideration on two grounds raised by the learned counsel for the appellant. The claimants-respondents would have forgotten about this litigation long back on account of inaction or omission on the part of the appellant not to get these Appeals listed for admission for all these years and the same would have made the claimants to believe that the award impugned has attained finality by now. ( 9 ) JN the result all these Appeals fail and the same are dismissed. .