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Gujarat High Court · body

2016 DIGILAW 1346 (GUJ)

Project Manager v. Spl. Land Acq. Officer

2016-07-18

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present appeals are filed by the appellant-original opponent No. 2 ONGC being aggrieved with the impugned judgment and order in Land Acquisition Reference Case Nos. 720/86, 721/86, 722/86 & 723/86, respectively, by the 2nd Jt. District Judge, Ahmedabad (Rural) at Mirzapur dated 4.11.1988 allowing the reference partly filed by the claimants awarding additional compensation as stated in detail in the judgment. 2. Learned advocate Ms. Kalpana Brahmbhatt referred to the papers and the impugned judgment and submitted that as it transpires from the background of facts, the claimants are owners of the land as stated in detail in their respective land acquisition cases which are situated in the sim of Village Adalaj, Taluka Gandhinagar. The possession of the land in question was taken by the appellant-ONGC on 11.3.1971 by private negotiation. However, thereafter, as the land was required, the Project Manager, ONGC, Ahmedabad proposed, vide letter dated 17.5.1982, for acquisition of the land in question. Therefore, the notification under sec. 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') came to be published in the Official Gazette on 16.12.1982. Thereafter notification under sec. 6 of the Act was published on 2.6.1983 and after following the procedure the land was acquired and compensation was awarded. 3. The Special Land Acquisition Officer, ONGC, Ahmedabad, on the basis of necessary material including the sale instances of the village from the Talati of Village Adalaj, fixed the market value of the land acquired at the rate of Rs. 500/- and the award came to be passed dated 10.10.1983. However, the claimants in the respective land reference cases preferred references for enhancement of compensation and by the impugned judgment in the aforesaid Land Reference Cases, the references came to be allowed partly granting enhancement as stated in detail in the impugned judgment in the respective land reference cases vide the judgment and order dated 4.11.1988 by the 2nd Jt. District Judge, Ahmedabad (Rural) at Mirzapur. 4. It is against this judgment granting enhancement of compensation at the rate of Rs. 25 per sq.mt., the present appeals are preferred by the appellant ONGC challenging the same referring to the aspect of temporary acquisition of land by mutual agreement and understanding for which the rent was paid to the land owners and also emphasizing that the provisions of sec. 25 per sq.mt., the present appeals are preferred by the appellant ONGC challenging the same referring to the aspect of temporary acquisition of land by mutual agreement and understanding for which the rent was paid to the land owners and also emphasizing that the provisions of sec. 23(1A) for compensation would apply in respect of possession of the land acquired permanently as per sec. 4 of the Act. 5. Learned advocate Ms. Brahmbhatt submitted that sec. 23(1A) would have application in respect of possession of the land taken pursuant to the acquisition proceedings under the Act after following the procedure and it would not have any application for temporary acquisition before such land acquisition proceedings were initiated. In other words, learned advocate Ms. Brahmbhatt submitted that the claim made by the claimants that the possession could be said to be taken away from 1971 when it was taken by mutual understanding and therefore while deciding the date of possession it should be reckoned from 1971 is misconceived. She emphasised that temporary acquisition of the land in lieu of rent is totally different. She submitted that for temporary acquisition of land for a limited period the rent or compensation is paid to the respective owners and therefore the word possession which has been referred to in the Act particularly in sec. 23(1A) would necessarily have a reference to acquisition of land and possession thereof pursuant to the procedure under sec. 4 of the Act. 6. Learned advocate Ms. Brahmbhatt referred to sec. 23(1A) of the Act and submitted that it refers to "in addition to the market value, the Court shall award an amount calculated at the rate of 12% per annum on such market value for the period from the date of publication of notification under sec. 4 .......... the date of taking possession of the land, whichever is earlier." She submitted that the possession of the land pursuant to private negotiation cannot be said to be acquisition as contemplated under sec. 4 & 6 of the Act. Therefore, this provision would not apply till the possession was taken over pursuant to the acquisition proceedings after issuance of notification under sec. 4 of the Act. She also referred to sec. 16 and submitted that it refers to taking over possession. She submitted that as sec. 16 provides for taking the possession as contemplated under sec. Therefore, this provision would not apply till the possession was taken over pursuant to the acquisition proceedings after issuance of notification under sec. 4 of the Act. She also referred to sec. 16 and submitted that it refers to taking over possession. She submitted that as sec. 16 provides for taking the possession as contemplated under sec. 11 of the Act, it would imply that there has to be an acquisition pursuant to the notification under sec. 4 & 6 of the Act. Learned advocate Ms. Brahmbhatt also referred to sec. 28 of the Act which provides for interest on the excess compensation. The interest could be calculated from the date of possession which may not be considered as possession taken pursuant to private negotiation in 1971. 7. In support of these submissions learned advocate Ms. Brahmbhatt referred to the judgment of the Hon'ble Apex Court reported in AIR 2001 SC 2951 in the case of Siddappa Vasappa Kuri and Anr. v. Special Land Acquisition Officer and Anr. It has been emphasized. "It is, as we see it, clear from Section 23(1A) that the starting point for the purposes of calculating the amount to be awarded thereunder, at the rate of 12 per centum per annum on the market value, is the dated of publication of the Section 4 notification. The terminal point for the purpose is either the date of the award or the date of taking possession, whichever is earlier. In the present case, possession of the land having been taken prior to the publication of the Section 4 notification, that terminal is not available. The only available terminal is the date of the award...." Therefore, where the possession of the land was taken on 1st June 1977 and the notification under sec. 4(1) in relation to the said land was issued thereafter on 8th March 1991, the owners were entitled to additional compensation under sec. 23(1A) from the date of sec. 4 notification, namely, 8th March 1991 to the date of award, namely, 6th February 1992. The owners were not entitled to additional compensation from the date on which the possession was taken, i.e., 1st June 1977 to the date on which section 4 notification was issued. 8. Learned advocate Ms. Brahmbhatt also referred to the observations in the judgment and submitted that the court below has committed an error in awarding Rs. The owners were not entitled to additional compensation from the date on which the possession was taken, i.e., 1st June 1977 to the date on which section 4 notification was issued. 8. Learned advocate Ms. Brahmbhatt also referred to the observations in the judgment and submitted that the court below has committed an error in awarding Rs. 25 making enhancement from Rs. 5 to 25 per sq.mt. She submitted that there was no material and as it has been observed that it is difficult for want of sufficient evidence to ascertain the earning which the claimants might have earned from the land acquired. It was submitted that the method of capitalising the income from the acquired land on the strength of agricultural produce and the price could not have been assessed without any material. Learned advocate Ms. Brahmbhatt however submitted that reliance is placed on the certified copy of the two judgments at exh. 15 and 20 which was given by the Asst. Judge, Ahmedabad (Rural) where the compensation was awarded at the rate of Rs. 25 per sq.mt. However, she tried to submit that the situation of the land in those cases cannot be compared and even after making some observations the court has awarded enhancement to the tune of Rs. 25 per sq.mt., which is erroneous. 9. Learned advocate Shri Bhatt for the respondents claimants however referred to the papers and submitted that the land in question is situated in Village Adalaj and it is near to the highway and therefore on the basis of the two other judgments with regard to the similar land the award has been made on the same line. He submitted that the land in another case for which the judgment at exh. 15 and 20 is relied upon were situated at a distance of 2-3 fields from the acquired land and therefore it was in vicinity of the present land which has been acquired though they fall in the sim of different villages. He emphasised the observations made in the judgment that Adalaj is situated on the national highway and the acquired lands are at a distance of 2-3 fields from the village for which acquisition is made and compensation has been awarded as per the judgment exh. 15 & 20. He emphasised the observations made in the judgment that Adalaj is situated on the national highway and the acquired lands are at a distance of 2-3 fields from the village for which acquisition is made and compensation has been awarded as per the judgment exh. 15 & 20. He, therefore, submitted that the court below has assessed the property while making the enhancement on overall consideration of the material and evidence including the value of the land in near vicinity. 10. Learned advocate Shri Bhatt also referred to the cross-objection to support his contentions with regard to the part of the interest and the claim under sec. 23(1A) of the Act. He submitted that the provisions of sec. 23(1A) oblige the court that the amount calculated at the rate of 12% p.a. on such market value has to be awarded for the period commencing from the date of publication of the notification under sec. 4 or the date of taking possession of the land, whichever is earlier. Learned advocate Shri Bhatt emphasised the latter part "the date of taking possession of the land, whichever is earlier". He submitted that admittedly the possession of the land in question has been taken over since 1971 pursuant to the negotiation and therefore this provision would apply for the purpose of calculation and it cannot be said that this would not be attracted as the possession was not as contemplated under sec. 4 and 6 of the Act. He submitted that the submission that possession for the purpose of sec. 23(1A) has to be considered from the date of acquisition of the land pursuant to the notification under sec. 4 is misconceived as it has also been provided 'from taking possession of the land whichever is earlier'. He, therefore, submitted that the legislature has used this provision for the purpose of sec. 23 which in turn would suggest taking of possession by whatever means. Learned advocate Shri Bhatt therefore submitted that even if the possession of the land in question is taken pursuant to private negotiation, the possession is said to have been taken and therefore it would relate back to 1971 for the purpose of sec. 23(1A) of the Act. He therefore submitted that sec. 23(1A) would be applicable and the benefit under sec. 23(1A) of the Act. He therefore submitted that sec. 23(1A) would be applicable and the benefit under sec. 23(1A) cannot be denied on such a ground that possession has to be only from the date of notification under sec. 4 of the Act. 11. Learned advocate Shri Bhatt also referred to the papers and submitted that the submissions with regard to enhancement are misconceived referring to the situation of the land and therefore it may not be justified. Similarly, he has stated that as referred to in sec. 23, the interest has to be calculated from the date of taking over possession, meaning thereby, even the possession by private negotiation in 1971. He also referred to sec. 28 of the Act. 12. In view of these rival submissions, it is required to be considered whether the present appeals deserve consideration. 13. As discussed hereinabove, on appreciation of the material and evidence, the reference court has enhanced the compensation from Rs. 5 to Rs. 25, relying upon other two sale instances and the judgment in respect of the land situated in near vicinity. Now, the present land in question is situated at Village Adalaj which is near to the national highway. Other two lands the acquisition of which was also a subject matter of litigation and the judgments exh. 15 and 20 also refer to the land in near vicinity inasmuch as they are just two fields away though for the purpose of sim of the village it could have been described as falling in the sim of another village. Therefore, while considering the aspect of compensation and the situation of the land with nearness of the highway if the court below has awarded Rs. 25 by way of enhancement it cannot said to be erroneous. In fact, the reasons recorded by the court below for enhancement of compensation from Rs. 5 to Rs. 25 is just and proper and as this court is in broad agreement with the reasons recorded and the conclusion arrived at, it does not call for any interference. 14. However, the submissions which have been made referring to sec. 23(1A) of the Act for the purpose of application of such benefit has to be considered. The submissions made by learned advocate Shri Bhatt with much emphasis on the aspect of "possession" is required to be considered. 14. However, the submissions which have been made referring to sec. 23(1A) of the Act for the purpose of application of such benefit has to be considered. The submissions made by learned advocate Shri Bhatt with much emphasis on the aspect of "possession" is required to be considered. It is not in dispute that the possession of the land in question was taken over by private negotiation on 11.3.1971. However, at the same time, the rent or compensation for the temporary acquisition has also been paid. Therefore, for the purpose of sec. 23(1A) whether the possession given pursuant to private negotiation in the year 1971 would be considered or whether the possession taken over pursuant to the acquisition proceedings after the notification under sec. 4 has to be considered. 15. A close look at the provisions of sec. 16 r/w sec. 23(1A) would clearly suggest that what is referred to in sec. 16 referring to the aspect of possession clearly suggest that after the award is made under sec. 11, the possession of the land could be taken meaning thereby the possession taken pursuant to the proceedings under the Act after the notification under sec. 4 of the Act is issued. Therefore, though the possession is said to have been taken but possession taken pursuant to private negotiation for a limited period or limited interest cannot be considered as taking over possession as contemplated under sec. 16 under the Act. Therefore, in order to consider the benefit under sec. 23(1A), the possession which has been considered or the date of possession has to be reckoned from the land acquisition proceedings pursuant to sec. 4 of the Act. In fact, sec. 23(1A) clearly provides that the court shall award an amount calculated at the rate of 12% p.a. on such market value for the period commencing on and from the date of publication of notification under sec. 4. However, much emphasis given by learned advocate Shri Bhatt referring to the latter part which provide that it could also be from the date of taking possession of the land whichever is earlier to suggest that possession is taken over on 11.3.1971 and therefore that date should be reckoned is misconceived. Admittedly, the possession of the land was taken pursuant to private negotiation in 1971 for which rent or compensation for temporary acquisition is paid. Admittedly, the possession of the land was taken pursuant to private negotiation in 1971 for which rent or compensation for temporary acquisition is paid. Therefore, both temporary acquisition of the land or limited rights over the land is totally different from acquisition of the land pursuant to the notification under sec. 4 and 6 of the Act. 16. However, much emphasis given by learned advocate Shri Bhatt referring to the latter part which provide that it could also be from the date of "taking possession of the land whichever is earlier" to suggest that it should be reckoned from the date of taking over possession, that is, 11.3.1997, irrespective of the date of notification under sec. 4 of the Act, is misconceived. As discussed above, this issue has been considered by the Hon'ble Apex Court and is squarely covered by the observations of the Hon'ble Apex Court in the judgment in the case of Siddappa Vasappa Kuri and Anr. (supra) as referred to and quoted hereinabove. Therefore, the date of possession has to be reckoned from the date of notification under sec. 4 of the Act for the purpose of compensation under sec. 23(1A). 17. The contention raised in Cross Objection No. 87 of 2006 that the court below has committed an error in holding that the claimants are not entitled to additional compensation under sec. 23(1A) is misconceived. The submission made by learned advocate Shri Bhatt referring to the averments in the Cross Objection reflecting about the aspect of delay and/or the so-called slow movement by ONGC to highlight the conduct would not be of any help. The submission made by learned advocate Shri Bhatt that the Land Acquisition Act is an ex-proprietary legislation and therefore it may be considered while deciding the aspect of enhancement of compensation and the entitlement of benefit under sec. 23(1A) is required to be considered in background of the facts. 18. As discussed above, on overall consideration of the facts as well as in view of the fact that the Land Acquisition Act is an ex-proprietary legislation necessary compensation has been awarded. While considering the aspect of compensation the courts have to be guided by well-settled principles and the statutory provisions like the Land Acquisition Act and the Rules made thereunder. As discussed above, on overall consideration of the facts as well as in view of the fact that the Land Acquisition Act is an ex-proprietary legislation necessary compensation has been awarded. While considering the aspect of compensation the courts have to be guided by well-settled principles and the statutory provisions like the Land Acquisition Act and the Rules made thereunder. As discussed above, temporary acquisition of the land or a limited right over the land pursuant to private negotiations operate in different spheres for which a separate procedure is provided under the rules and acquisition of the land pursuant to notification under sec. 4 and 6 of the Act refer to acquisition of the land itself subject to the procedure including compensation. Therefore, while considering the compensation for the purpose of acquisition of the land under the Land Acquisition Act after following the procedure under sec. 4 and 6 of the Act necessarily has to have a reference to the statutory provision of the Act including sec. 23(1A) and 16. Section 23(1A) specifically refers to the aspect of possession pursuant to the notification under sec. 4 of the Act implying that it refers to acquisition of the land as per the procedure after issuance of notification under sec. 4 of the Act which is a permanent acquisition of land for which compensation has to be calculated as provided therein. Again, sec. 23(1A) obliges the court as the word "shall" has been used to calculate additional benefit at a stipulated rate from the date of possession after acquisition of the land following the procedure of sec. 4 and the notification under sec.4 of the Act. Therefore, it refers to permanent acquisition of the land after following the procedure under the Land Acquisition Act, i.e., sec. 4 and 6 notification under the Act. The aspect of possession, therefore, has to be considered with reference to permanent acquisition of land after following the procedure under the Land Acquisition Act. Section 16 also refers to and indicate that after the award is made the possession could be taken which again indicate with regard to acquisition of the land pursuant to sec. 4 and 6 of the Act. 19. The reference to sec. Section 16 also refers to and indicate that after the award is made the possession could be taken which again indicate with regard to acquisition of the land pursuant to sec. 4 and 6 of the Act. 19. The reference to sec. 23(1A) made by learned advocate Shri Bhatt that whichever date is earlier for the purpose of possession is with reference to possession taken for permanent acquisition of the land after following the procedure under the Act. In other words, it does not refer to possession taken temporarily pursuant to private negotiation. Therefore, the submissions made by learned advocate Shri Bhatt referring to Cross Objection No. 87/2006 cannot be readily accepted that the date of possession should be reckoned as from 9.3.1971. 20. The present First Appeals filed by the appellant-ONGC, therefore, stand allowed partly to the extent of interest awarded at the rate of 9% p.a. from date of possession reckoned from the date of notification under sec. 4 of the Act. Therefore, the judgment and award awarding interest @ 9% p.a. from 11.3.1971 taking it as the date of possession is hereby quashed and set aside. However, as discussed above, the interest can be awarded @ 9% p.a. from the date of possession under the Land Acquisition Act pursuant to the notification under sec. 4 of the Act as the date of possession on 10.10.1983. 21. Thus, the aforesaid First Appeals Nos. 682 to 685 of 1995 filed by the appellant ONGC stand allowed partly to the aforesaid extent only and the challenge made in the appeal against enhancement is not accepted. 22. Similarly, Cross Objection No. 87 of 2006 filed by the claimants also deserves to be dismissed in light of the discussion made hereinabove in the First Appeals.