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2001 DIGILAW 691 (GUJ)

Punjabi Bhemaji Khant v. State of Gujarat

2001-09-12

B.C.PATEL, SHARAD D.DAVE

body2001
ORDER : B.C. Patel, J. This group of appeals was called out on 10.9.2001, and the appeals were heard for sometime. Before us the judgment rendered by the Division Bench against the impugned award was placed. Thereafter the appeals were adjourned at the request of the learned advocate for the appellants. Thereafter, on 11.9.2001, the matters were placed for hearing; However, learned advocate for appellants was not present when the matters were called out. Even today, in the first session, when these matters were called out, he was not present. Even in the second session, he has chosen not to remain present. Therefore, there is no alternative but to pass an order on merits. 2. These appeals are filed against the award made by Assistant Judge, Sabarkantha at Himmatnagar in Land Reference Cases No. 3876/89 to 3914/89 on 9th February, 1999. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred to as "the Act") was published on 26.6.73 for acquisition of land situated at village Pujarana Muvada, Taluka Malpur, Dist. Sabarkantha, for Vatrak Jalagar Yojna. After following the procedure under the Act, the Special Land Acquisition Officer awarded Rs. 3300/- per Acre for irrigated lands and Rs. 2200/- per Acre for non-irrigated lands. Against the impugned award made by the Special Land Acquisition Officer, Reference Applications were preferred being Land Reference Cases No. 3876 to 3914/89. On appreciation of evidence, Reference Court awarded compensation at the rate of Rs. 145/- per Are for non-irrigated lands and Rs. 117.50 per Are for irrigated lands. The State being aggrieved by the aforesaid award passed by the Reference Court, preferred First Appeals No. 2850/01 to 2874/01. It is required to be noted that the claimants being aggrieved by the said award, preferred First Appeals No. 4846/99 to 4877/99. Thus, it is clear that against the impugned award, the claimants as well as the State both have preferred appeals, and, the claimants' appeals were filed prior in time. When there are cross appeals, ordinarily, appeals are required to be heard and disposed of together by a common judgment. But in the instant case, it appears that before the Division Bench (Coram: J.N. Bhatt & Akshay Mehta, JJ), not only the Government Pleader but also Mr. When there are cross appeals, ordinarily, appeals are required to be heard and disposed of together by a common judgment. But in the instant case, it appears that before the Division Bench (Coram: J.N. Bhatt & Akshay Mehta, JJ), not only the Government Pleader but also Mr. G.M. Amin, learned advocate appearing for the claimants in the First Appeals filed by claimants as also in the appeals filed by the State argued for the respondents in the appeals filed by the State. The Court by judgment dated 9.7.2001 disposed of the appeals on merits. Copy of the judgment is also produced before us. In para 5 of the said judgment rendered in First Appeal No. 2850 to 2874/01, the Division Bench has pointed out as under. "During the course of submissions made before us, the entire documentary evidence as well as oral evidence were supplied and we were taken through them for the purpose of consideration of the merits and challenge against the awards in this group. After having considered the evidence on record, and the rival submissions advanced before us, and the relevant proposition of law, we are of the clear opinion that the fixing of the market price at the rate of Rs. 2/- per sq. mtr. in respect of the land under references could not be said to be unjust, unreasonable or excessive. The Reference Court has taken into consideration the various facts and circumstances relevant for the consideration of fixation of market price under Section 23 of the Act." In paras 6, 7 and 8 of the said judgment, the Division Bench considered the yield and pointed out as under. "6. The observations made by the Reference Court in relation to the appreciation of the evidence in paras (11) and (12), have been highlighted by both the sides and, therefore, it would not be necessary to repeat and reiterate the same since we agree with these observations. The respondents - original claimants have placed reliance on the evidence of one witness Gema Natha examined at exh. 102. He had purchased the agricultural land bearing Revenue Survey No. 68 of village Fansarel admeasuring 2 Acres and 20 gunthas for consideration of Rs. 62,500/-. The sale deed evidencing the transaction is produced by him at exh. 103. The documentary evidence produced at exh. 102. He had purchased the agricultural land bearing Revenue Survey No. 68 of village Fansarel admeasuring 2 Acres and 20 gunthas for consideration of Rs. 62,500/-. The sale deed evidencing the transaction is produced by him at exh. 103. The documentary evidence produced at exh. 103 by the claimants in the evidence of Gema Natha clearly goes to show that the rate of agricultural land of village Fansarel comes to Rs. 625/- per Are. The distance between the village Pujarani Muvada and Fansarel is about 4 K.M. It is also very clearly testified by him that the quality and fertility of the agricultural lands of both the villages are almost similar. 7. No doubt, it will be interesting to mention that the date of notification in the present case under Section 4(1) of the Act is important, which is 26/6/1973 whereas the date of sale in relation to the sale deed at exh. 103 is 29/11/1994. Thus, there is a gap of 21 (Twenty One) years between the acquisition of the land and the transaction of sale evidenced by exh. 103. It is in this context that the Reference Court has not seriously considered it for the purpose of fixing the market price under the land acquisition. The answer given by the Reference Court is quite justified and we are in full agreement. Therefore, the submission made by learned A.G.P. is required to be rejected. "8. It is also very clear from the evidence of the claimant witness Pujabhai, examined at exh. 99 that the acquired agricultural lands were yielding good crops. It is borne out from the evidential testimony at exh. 99 that the Groundnut crop is of 35 Maunds per Vigha and Tuver is about 35 Maunds per Vigha and Adad is about 40 Maunds per Vigha. It is also very clearly testified by him that they were growing agricultural crops of Groundnut, 55 Maunds of Wheat per Vigha and 50 Maunds of Cotton per Vigha. No doubt, the witness has made slight exaggeration which has excluded the consideration by the Reference Court. It is clearly mentioned in the impugned judgment that the Reference Court has taken very reasonable approach in fixing the market price by employing the capitalisation method of the agricultural land acquired by the appellant. No doubt, the witness has made slight exaggeration which has excluded the consideration by the Reference Court. It is clearly mentioned in the impugned judgment that the Reference Court has taken very reasonable approach in fixing the market price by employing the capitalisation method of the agricultural land acquired by the appellant. It is also manifested that the same is in consonance with the principle laid down by this Court in State of Gujarat v. Patel Narvatlal Khodidas, reported in 1995 (1) GLH (UJ) 17. It must be remembered that for the determination of the market price contemplated under Section 23 of the Act, the various methods are available and agricultural yield of the lands under reference is one of the methods which is required to be capitalised incomes of celebrated principle of law which is processed by the Reference Court. Apart from that, the other material aspects also are kept in mind and finally, the Reference Court has fixed the market price at Rs. 2/- per Sq. Mtr. and other statutory benefits. No doubt, in respect of the statutory benefits, there is a dispute about the percentage and the provisions in this regard would be dealt with by us hereinafter." Attention of the Court was also invited to the group of appeals being First Appeal Nos. 7746/99 to 7714/99 and in para 9 the Court has dealt with it in detail. The Division Bench in para 9 of the said judgment further observed as under. "However, fixation of market price in the present group is Rs. 2/- per sq. mt. whereas in that group ( F.A. Nos. 7746 to 7814/99, wherein notification was published under Section 4 on 16th January, 1975), the market price is Rs. 4/per sq. mt. and the appeals against that order came to be dismissed and it has become final." The Division Bench by a judgment and order dated 15.9.99 has observed in para 10 of the judgment in First Appeal Nos. 2850/01 to 2874/01 dated 9.7.2001 while allowing the appeals partly held that the market value of the agricultural land of village Kidiad on the relevant date i.e. publication of notification under Section 4(1) is Rs. 4/- per sq. mt. 2850/01 to 2874/01 dated 9.7.2001 while allowing the appeals partly held that the market value of the agricultural land of village Kidiad on the relevant date i.e. publication of notification under Section 4(1) is Rs. 4/- per sq. mt. Thus, after hearing the claimants as well as the State, the Division Bench disposed of the First Appeals preferred by the State and therefore, the judgment of the trial court has merged in the judgment of the appellate court. 3. Had it been the case that the appeals were summarily dismissed even in presence of the other side or appeals were dismissed summarily in the absence of the other side or was dismissed for non-prosecution, the situation would have been different because then, in such situation, it cannot be said that the judgment was delivered after hearing both the sides. The other side had no occasion to place his case before the Court. In this group, the claimants preferred appeals being First Appeal Nos. 4846/99 to 4877/99. It is thereafter the State has preferred the appeals. When the appeals of the State were heard first, the Court considered the arguments of both the sides and it was open for the learned advocate to point out that his appeals are pending and therefore, the Court should wait for his appeals as claimants are claiming more amount. But possibly realising that no injustice is caused, the learned advocate may not have thought it proper to point out to the Court. We are sure that if he would have pointed out, the Division Bench, either would have called for the appeals or would have adjourned the matters and would not have disposed of the matters. What is observed by Division Bench in para No.1 makes it clear that the learned advocate for the claimant requested to take up the matters. The Division Bench in para-1 stated as under. "This is a group of 25 Appeals under Section 54 of the Land Acquisition Act, 1894 (for short "the Act"). The appellant in all these appeals is the State of Gujarat and common questions are involved, arising out of common judgment. Upon the joint request, the entire group is taken up simultaneously for determination and adjudication and the entire group is being disposed of by this common judgment." 4. The appellant in all these appeals is the State of Gujarat and common questions are involved, arising out of common judgment. Upon the joint request, the entire group is taken up simultaneously for determination and adjudication and the entire group is being disposed of by this common judgment." 4. Where a decree of the trial court is carried in appeal and the appellate court disposes of the appeal after a contested hearing, the decree to be executed is the decree of the appellate court and not of the trial court. The Apex Court in the case of M/s. Gojer Brothers (P) Ltd. v. Shri Ratanlal Singh [ AIR 1974 SC 1380 ] pointed out what the Privy Council stated on the subject. The Privy Council also adopted the statement contained in the judgment of the Tudball, J., to this effect: "When the Munsif passed the decree it was open to the plaintiff or the defendant to accept that decree or to appeal. If an appeal is preferred, the final decree is the decree of the Appellate Court of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final in the cause between the parties." Thus, when the decree of the Court of first instance is confirmed by the High Court and the latter decree is confirmed by the Privy Council the decree capable of execution is the decree of the Privy Council. In para 18, the Court pointed out as under. "The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of appellate Court is that in such cases the decree of the trial Court is merged in the decree of the appellate Court. In course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like Revisions and even to proceedings before quasi-judicial and executive authorities." The Apex Court was examining the effect of Section 17D of the West Bengal Premises Tenancy (Second Amendment) Act, 1969. In para 32, the Apex Court pointed out as under. "In the instant case the subject-matter of the suit and the subject-matter of the appeal were identical. In para 32, the Apex Court pointed out as under. "In the instant case the subject-matter of the suit and the subject-matter of the appeal were identical. The entire decree of the trial court was taken in appeal to the first appellate court and then to the High Court. The appellate order also shows that the appeal after being heard on merits, was dismissed with the modification that the respondent should vacate the premises by the end of January, 1970. The decree of the High Court dated January 8, 1969, reads thus : "It is ordered and decreed that the decree of the court of appeal below be and the same is hereby affirmed and this appeal dismissed subject to this that the defendant appellant, having duly filed the stipulated undertaking, through his learned Advocate, is allowed time till the end of January, 1970, for vacating the disputed premises and delivering up quiet and peaceable possession thereof to the decree-holder respondent on condition that the said defendant appellant deposits in the trial court, to the credit of the decree-holder respondent, within two months from this date, the outstanding arrears, if any, on account of rents or mesne profits, as the case may be, and also goes on depositing, in the same court to the same credit, month by month, regularly, according to the English calendar, within the 15th of the next succeeding month according to the same calendar, a sum of Rs. 175/(Rupees one hundred and seventy five) per month, on account of current rents or mesne profits. "And it is further ordered that in the event of the said defendant's failure to make any of the above deposits, this decree shall become executable at once." "We, are accordingly of the opinion that the decree of the trial court dated November 24, 1958 merged in the decree of the High Court dated January 8, 1969. Since the decree of the High Court was passed after the commencement of the West Bengal Premises Tenancy (Amendment) Act 1968, that is to say after August 26, 1967, section 17D of the Act of 1956 can have no application and therefore the decree of the High Court which is the only decree to be executed cannot be set aside under that section." 5. Whether an order can be said to be an order made by the appellate authority or not? Whether an order can be said to be an order made by the appellate authority or not? The Apex Court in the case of State of Orissa & others v. Krishna Stores [ (1997) 3 SCC 246 ] in para 8 pointed out as under. "In the present case the appeals have been rejected under Rule 49(1). This is clearly a rejection at the initial stage of filing of an appeal which is defective. Such rejection is before the appeal is taken up for consideration by the appellate authority. An order rejecting the appeal on the ground that it is not in the specified form or that all the requirements of the form are not fully complied with cannot be considered an appellate order within the meaning of Rule 80. Rule 49(1) clearly provides that such summary rejection can take place after giving the appellant an opportunity to rectify the defects. This is not a rejection or dismissal of an appeal after hearing the appellant on merit. Such an order would not qualify as an appellate order under Rule 80. The purpose of a revision by the Commissioner suo motu is to ensure that the assessee is correctly assessed relating to his tax liability. If there is an appellate authority which has considered the assessment order then the Commissioner cannot suo motu revise the order. The department would then have to follow the procedure laid down for challenging the appellate order. When, however, an appeal is not accepted for consideration at all because of defects there is no question of the department being required to follow the procedure laid down for challenging such an order. Rule 80, when it refers to the Commissioner exercising a suo motu power of revision in respect of orders other than appellate orders, clearly contemplates an appellate order which has considered the original assessment order on merit in some form or the other. An order rejecting an appeal at the stage of filing cannot be considered as an appellate order in the context of Rule 80." The Apex Court in para 14 considered the decision of the Apex Court in the case of M/s. Gojer Brothers (P) Ltd. v. Shri Ratanlal Singh (supra) and pointed out as under. "The respondent strongly relied upon a decision of this Court in Gojer Brothers Pvt. Ltd. v. Ratan Lal Singh (1975 [1] SCR 394). "The respondent strongly relied upon a decision of this Court in Gojer Brothers Pvt. Ltd. v. Ratan Lal Singh (1975 [1] SCR 394). In that case a decree for possession in favour of the plaintiff was passed by the Munsif's court. It was confirmed in appeal and the second appeal was dismissed by the High Court. The court said that the judgment of an inferior court if subjected to an examination by the superior court ceases to have existence in the eye of law and is treated as being superceded by the judgment of the superior court. In other words the judgment of the inferior court loses its identity by its merger with the judgment of the superior court. This was clearly a case where at each stage the appeal was decided on merit. It has no relevance here. The other case relied upon by the respondent is of Sheodan Singh v. Daryao Kunwar ( AIR 1966 SC 1332 ). In that case the trial court had decided two suits having common issues on merit. There were two appeals therefrom. One of them was dismissed on the ground of limitation and the other on account of default in printing. With the result that the trial court's decision stood confirmed. This Court said that the decisions of the appeal court will be res judicata as the appeal court must be deemed to have heard and finally decided the matter. The entire controversy before the court related to the application of the doctrine of res judicata." 6. In the case of Kunhayammed v. State of Kerala [ AIR 2000 SC 2587 ], the Apex Court examined the question of merger. In para 12, the Apex Court pointed out as under. "The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. When decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way whether the decree of order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view." Thus, it is very clear that where an appeal is filed against the order made by the Court and the higher forum examining the appeal modifies, reverses or affirms the decision, the decision of the subordinate forum namely the trial court would merge in the decision of the appellate forum and it is the latter which subsists, remains operative and that is capable of enforcement in the eye of law. 7. Subject matter before the Division bench was the increased amount of compensation. The State was agitating that the Reference Court, in the facts of the case, looking to the evidence on record, could not have increased the amount of compensation that was awarded by Special Land Acquisition Officer under his award. The claimants knew that their appeals were pending for higher amount than that was awarded by Reference Court. The learned advocate for the claimants participated actively in the proceedings contending that the amount awarded is proper. He did not urge before the Court that he is claiming higher amount than what is awarded by Reference Court. Even if appeals were not filed, law permits to raise cross objection and, even that was not done. The learned advocate for the claimants participated actively in the proceedings contending that the amount awarded is proper. He did not urge before the Court that he is claiming higher amount than what is awarded by Reference Court. Even if appeals were not filed, law permits to raise cross objection and, even that was not done. In view of the fact that the State was agitating against higher amount that was awarded and, after hearing both the sides, i.e. claimants and the State, the Division Bench arrived at a conclusion that the amount awarded is just, proper and in accordance with law, then the order of the High Court would operate. There is no question of further increase in view of what Division Bench ordered. Thus on the same issue when higher forum in appeal after hearing the concerned parties has rendered the decision, it is that decision in existence. The Reference Court's award merges in the judgment of the Division Bench. 8. No doubt, the appellants could have made their grievance before the Division Bench while the matters were being heard. Even if the appeals were not filed, by filing cross-objections, the appellants could have made their grievance. But it seems that they kept mum at the relevant time and waited for the decision. Now, after the judgment is acquiesced in, it is not open to say that irrespective of the fact that appeals were heard on merits after hearing the State as well as the claimants, these appeals should be entertained. That cannot be accepted and therefore, these appeals are dismissed. Appeals dismissed.