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2009 DIGILAW 628 (GUJ)

Lavjibhai Kuberbhai Patel v. State of Gujarat

2009-09-24

K.M.THAKER, M.S.SHAH

body2009
Judgment Mohit S. Shah, J.—In this petition, under Articles 226 and 227 of the Constitution, the petitioner has challenged the judgment and decree dated 3.12.2007 passed by the learned 3rd Additional Senior Civil Judge, Himmatnagar in Regular Civil Suit No. 226 of 2002 and has also prayed for a direction to the respondents to pay interest at the rate of 15% p.a. for late payment of compensation for acquisition of the petitioner’s land for the period from 16.4.1999 to 30.8.2002 and also for the period from 31.8.2002 till actual payment of interest. 2. The petitioner’s land bearing Revenue Survey No. 912 situate at Village Sarya, Taluka Modasa, District Sabarkantha was acquired for Mazum Irrigation Scheme. In the award in Land Acquisition Case No. 11 of 1980, according to the petitioner, the actual measurement of the acquired land was 2-95-43 sq. mts, but on account of typographical mistake, the award given by the Land Acquisition Officer indicating the measurement 2-07-41 sq. mts. with a result that there was short payment of compensation for 8802 sq. mts. 3. The petitioner applied for reference under Section 18 of the Land Acquisition Act, 1894 and the matter was referred to the District Court, Himmatnagar as Land Reference Case No. 3882 of 1989. In the said reference also, the petitioner was paid compensation for the land admeasuring 02-07-41 sq. mts. The petitioner had thereafter applied to respondent No. 3-Superintending Engineer, Himmatnagar Irrigation Scheme Circle for paying the petitioner compensation for the land admeasuring 8802 sq. mts of land. According to the petitioner, the reference is already allowed and the compensation amount is enhanced. However, since the petitioner had not received any compensation for the land admeasuring 8802 sq. mts. of Revenue Survey No. 912, the petitioner made an application to respondent No. 3-Superintending Engineer for giving compensation to the petitioner for the land admeasuring 8802 sq. mts. at the rate determined by the Reference Court in Land Acquisition Reference Case No. 3882 of 1989. On 15th March, 2002, respondent No. 3 paid the compensation of Rs. 2,19,000/- for the said land admeasuring 8802 sq. mts. at the rate determined by the Reference Court. The respondents calculated interest on the said amount for the period from 15.4.1982 to 15.4.1999 and paid the petitioner interest of the said period on 30.8.2002. In short, the petitioner was not paid interest for the period from 16.4.1999 upto 30.8.2002. 4. 2,19,000/- for the said land admeasuring 8802 sq. mts. at the rate determined by the Reference Court. The respondents calculated interest on the said amount for the period from 15.4.1982 to 15.4.1999 and paid the petitioner interest of the said period on 30.8.2002. In short, the petitioner was not paid interest for the period from 16.4.1999 upto 30.8.2002. 4. Since the petitioner was not paid interest for the said period of 16.4.1999 to 30.8.2002 inspite of the demand made by the petitioner, petitioner filed Regular Civil Suit No. 226 of 2002. In the said suit, the defence of the defendants/respondents herein was that the petitioner had given an undertaking to the Executive Engineer not to claim any interest for the period from 16.4.1999 to 30.8.2002 and that he was ready and willing to accept interest for the period from 15.4.1982 to 15.4.1999 which was paid to the petitioner on 30.8.2002. The petitioner has urged that the aforesaid undertaking could not bind the petitioner because the petitioner was compelled to give such undertaking on a stamp paper of Rs. 20 when the petitioner was informed that if such undertaking was not given, the petitioner will not be paid any interest - not even for the period from 15.4.1982 to 15.4.1999 - which was to the tune of Rs. 63,149/-. 5. The learned 3rd Additional Senior Civil Judge, Himmatnagar, by judgment and decree dated 3.12.2007, dismissed the suit after holding that the petitioner was bound by the undertaking at Exh.34 and therefore, the petitioner had no right to claim interest for the period from 16.4.1999 to 30.8.2002. 6. In response to the notice for final disposal issued on this petition, Mrs. V.S. Pathak, learned AGP, appears and opposes the petition. It is submitted that the petitioner has alternative remedy of filing an appeal against the decree passed by the Civil Court. In the alternative, it is submitted that since the petitioner had given undertaking at Exh.34 stating that the petitioner was voluntarily waiving his right to claim interest for the period from 16.4.1999, the petitioner cannot invoke equitable jurisdiction of this Court. 7. Mr. Amin, learned Advocate for the petitioner, has submitted that the respondents had never disputed the factual aspect that the actual area of the petitioner’s land was 29543 sq. mts., but compensation was initially paid only for 20741 sq. 7. Mr. Amin, learned Advocate for the petitioner, has submitted that the respondents had never disputed the factual aspect that the actual area of the petitioner’s land was 29543 sq. mts., but compensation was initially paid only for 20741 sq. mts and thus, no compensation was paid for the land admeasuring 8802 sq. mts. Having realized the mistake, the respondents paid an amount of Rs. 2,19,000/- with interest of Rs. 63,149/- on 30.8.2002. Hence, the petitioner was entitled to claim interest for the entire period upto 30.8.2002 and there was no reason for the petitioner not to claim interest for the period from 16.4.1999 till the date of payment. It is further submitted that the petitioner’s land was acquired in the year 1980 and for 22 years the petitioner did not get the full compensation for the entire land. Hence, the petitioner has already waited for 29 years for getting his legitimate dues. Therefore, the petitioner may not be now required to file an appeal for getting his legitimate dues as filing of the appeal before the District Court and thereafter, before this Court will consume decades and the petitioner is already aged 73 years and is a poor and illiterate agriculturists. Hence, this court may exercise extraordinary discretionary writ jurisdiction in the peculiar facts of the case. 8. Having heard the learned advocates for the parties and in view of the facts highlighted on behalf of the petitioner in preceeding paragraphs, we are of the view that when there is no dispute about the fact that the petitioner was paid compensation for 2-07-41 sq. mts of land only on 30.8.2002 for which the acquisition was made in the year 1980 and possession was also taken at the relevant time and in view of passage of 29 years and looking to the petitioner’s age of 73 years and particularly since no disputed question of fact on the basic issue involved in the petition are raised, we are not inclined to relegate the petitioner for filing the appeal before the District Court. It is true that when a party gives an undertaking to the Government authority, due credit should be given to such undertaking and this Court will not immediately or readily accept the case of the petitioner-plaintiff that the undertaking was not given voluntarily. It is true that when a party gives an undertaking to the Government authority, due credit should be given to such undertaking and this Court will not immediately or readily accept the case of the petitioner-plaintiff that the undertaking was not given voluntarily. However, in the peculiar facts of the case, we find that there was no reason for the petitioner to waive his right to claim interest from 16.4.1999 till the date of payment as the land was already acquired in the year 1980 for the irrigation scheme and he was not paid compensation for 22 years for a part of the acquired land being the land admeasuring 8802 sq. mts. The Superintendent Engineer had accepted the fact that no compensation was paid for the said portion of land. The compensation thus having been paid only on 30.8.2002 as per the order dated 15.3.2002 passed by the Superintendent Engineer the petitioner was entitled to get interest at the rate of 15% p.a. on the amount of compensation being Rs. 2,19,000/- for the period from the date of taking over possession of the land till the date of payment on the principal amount of compensation for the land admeasuring 8802 sq. mts. We are conscious of the fact that when there is uncertainty or doubt about the party’s right, the party may agree to waive his part of claim so that the other side may give him other part of the claim. However, in the facts of the instant case, nothing is pointed out on behalf of the respondents as to what uncertainty or doubt was there about the petitioner’s claim for compensation for the land admeasuring 8802 sq. mts. 9. In view of the above discussion, we allow the petition and direct respondent Nos.2 and 3 to calculate the interest payable to the petitioner on the amount of compensation for the land admeasuring 8802 sq. mts. for the period from 16.4.1999 to the date of payment i.e. 30.8.2002. This shall be complied with by the respondent Nos.2 and 3 within one month from the date of receipt of certified copy of this judgment. Rule is made absolute.