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Gujarat High Court · body

2018 DIGILAW 319 (GUJ)

Jyoti Warehousing v. State of Gujarat

2018-01-31

A.Y.KOGJE, AKIL KURESHI

body2018
JUDGMENT : AKIL KURESHI, J. 1. These petitions arise in substantially similar background. We may record facts as emerging from Special Civil Application No. 6034 of 2015. The petition has been filed by one Jyoti Warehousing Partnership Firm to challenge an order dated 17.12.2014 passed by the competent authority appointed for the purpose of the National Highways Act ['the said Act' for short] by which, he reviewed the earlier awards passed by the competent authority determining compensation payable to the landowners for the lands acquired for expansion of National Highway. Petitioner is the owner of land bearing Survey Nos. 1710, 1711, 1712 and 1713 of Village Aslali, Tal. Daskroi, Dist. Ahmedabad which became part of the T.P. Scheme number and were given Final Plot Nos. 19, 21 and 28. According to the petitioner, such lands were granted permission for nonagriculture use by the Revenue Authority by passing an order dated 19.07.1982. On such lands, the petitioner is doing business of renting godowns in the name of Jyoti Warehousing for which purpose, godowns have been constructed thereon. The lands were abutting on existing National Highway No. 8. For National Highway expansion, by converting existing four lane highway into six lane highway, portion of the petitioner's lands from said Survey Nos. 1710, 1711, 1712 and 1713 were required by the National Highway Authority. Notification under section 3A of the Act was published on 15.06.2012 for such purpose. The petitioner's objections were rejected by the authority on 28.08.2012. A declaration under section 3D of the Act was made by the Central Government and gazetted on 23.10.2012. 2. In view of such acquisition of the lands, the petitioner was entitled to be compensated as provided under section 3G of the Act. The competent authority appointed for such purpose, passed a detailed award on 30.03.2013, a copy of which tendered by the counsel for the petitioner is taken on record. The authority noted that the notification under section 3A of the Act was published on 25.06.2012 which is the date relevant for ascertaining the market value of the land for compensation. He took into account the Government jantri rates published on 25.06.2012 for stamp valuation purpose. He also desired to look into the sale instances of village Aslali executed before the date of notification of section 3A of the Act whenever available. He took into account the Government jantri rates published on 25.06.2012 for stamp valuation purpose. He also desired to look into the sale instances of village Aslali executed before the date of notification of section 3A of the Act whenever available. He noted that several parcels of lands were being acquired for which, he was called upon to determine the market value and pass an award of compensation. Some were agriculture lands. The rest were non-agriculture lands. He divided the nonagriculture lands into two main heads; lands which were constructed upon and those which were open lands. Of the constructed lands, he made three divisions; lands used for residential purpose, for office premises and for shops. He noted that the Government jantri rates were similarly bifurcated. He noted that all these jantri rates are in force since 18.04.2011 i.e. before the date of notification under section 3A of the Act. He was of the opinion that the market value of the lands under acquisition should be determined on the basis of comparable sale instances or the jantri rates depending on the nature of use of the land. He then proceeded to fix the market value of each plot of land under acquisition with brief reasons for his conclusions. With respect to the petitioner's land, he determined the market value at the rate of Rs. 15,000/- per sq.mtr. He noted that jantri rates for the lands in question were not prescribed. He, therefore, took into account jantri rates prescribed for lands adjacent to the lands under acquisition and took the average of non-agriculture commercial jantri rates. On the basis of such determination of the market value of the land, he awarded suitable compensation depending on the area of the land being acquired by the National Highway Authority. 3. It appears that the National Highway Authority had dispute about such methodology adopted by the competent authority for determining the compensation. A communication was therefore, sent by the Project Director of National Highway Authority to the competent authority on 08.02.2017 raising serious grievances about the award passed by the competent authority in favour of the petitioner. Such communication is not on record but, at our request, was placed by the learned AGP. The primary grievance of the authorities appears to be that the competent authority committed an error in evaluating the land under acquisition as constructed land. Such communication is not on record but, at our request, was placed by the learned AGP. The primary grievance of the authorities appears to be that the competent authority committed an error in evaluating the land under acquisition as constructed land. The stand of the National Highway Authority is that separate compensation is paid for damage to the construction. Compensating for land considering it to be constructed would amount to double compensation. 4. The petitioners, original landowners were supplied a copy of such communication dated 08.02.2014 calling for their response. They filed a detailed representation on 30.09.2014 strongly opposing any proposal for review. They contended that the competent authority had not committed any error. At any rate, there was no power of review by which any such so called error could be corrected. One such objection dated 30.03.2014 raised by a partner of one Jyoti Warehousing is supplied by the petitioners and is taken on record. 5. Ignoring such pleas of the petitioner, the competent authority passed impugned order dated 17.12.2014 revising the value of the land to Rs. 4150/- per sq.mtrs and re-determined the compensation on such basis. He treated the land as open land and compared with the jantri rates for the open land in the vicinity to come to such a conclusion. 6. It is this order which the petitioner has challenged in the present petition. With minor modification, facts are similar in all the cases. Appearing for the petitioner, learned counsel Mr. Amin contended that: (i) There was no error committed by the competent authority in passing the original award dated 30.03.2013. The petitioner's lands are not open lands. Petitioner has constructed godowns on such lands since long. The competent authority therefore had correctly treated such lands as constructed lands; (ii) The competent authority does not have power to review his own decision; (iii) Even if he had the power, the parameters of review being extremely narrow, he could not have re-appreciated the facts and come to different legal conclusion. In other words, at any rate, this was not an error apparent on the face of the record which could have been corrected in exercise of review powers even if he had the same; (iv) The award passed by the competent authority on 30.03.2013 was duly approved by the higher authority. In other words, at any rate, this was not an error apparent on the face of the record which could have been corrected in exercise of review powers even if he had the same; (iv) The award passed by the competent authority on 30.03.2013 was duly approved by the higher authority. Long after passing of the award, by a new incumbent exercise of substantive review powers, he could not have tampered with the award which was confirmed by the higher authority. (v) Counsel relied on the following decisions: In case of Patel Narshi Thakershi and ors vs. Pradyumansinghji Arjunsinghji reported in AIR 1970 SC 1273 in which, it was held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication; In case of Kalabharati Advertising vs. Hemant Vimalnath Narichania and ors reported in (2010) 9 SCC 437 in which, it was treated that: 12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction. (vide: Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar AIR 1965 SC 1457 ; and Harbhajan Singh v. Karam Singh & Ors., AIR 1966 SC 641 ). 13. In Patel Narshi Thakershi & Ors. v. Shri Pradyuman Singhji Arjunsinghji, AIR 1970 SC 1273 ; Maj. Chandra Bhan Singh v. Latafat Ullah Khan & Ors., AIR 1978 SC 1814 ; Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur (U.P.) & Ors., AIR 1987 SC 2186 ; State of Orissa & Ors. v. Commissioner of Land Records and Settlement, Cuttack & Ors., (1998) 7 SCC 162 ; and Sunita Jain v. Pawan Kumar Jain & Ors., (2008) 2 SCC 705 , this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction.” In case of Haryana State Industrial Development Corporation Limited vs. Mawasi and ors reported in (2012) 7 SCC 200 in which, it was observed that: “26. At this stage it will be apposite to observe that the power of review is a creature of the statute and no Court or quasijudicial body or administrative authority can review its judgment or order or decision unless it is legally empowered to do so... .. …” The Supreme Court further observed that while exercising review powers error apparent on the face of the record can be corrected. Roving inquiry or de novo inquiry in guise of review would not be permissible. 7. On the other hand, learned advocate Mr. Nanavati for the National Highway Authority and learned AGP Ms. Thakore for the Government opposed the petitions contending that original award suffered from serious errors which required to be corrected. They categorized such errors as clerical, typographical or arithmetical in nature for which, any quasi judicial authority would have inherent powers to correct. It was contended that the competent authority in the first award had wrongly treated the lands under acquisition as open lands. This aspect was elaborated by Shri Nanavti by pointing out that though the lands of the petitioners may have been occupied by various buildings, the building regulations required a certain margin to be left open on the front and on the sides. What the National Highway Authority has acquired is such open margin lands. Even as per the rules, the land owner could not have carried out any further construction. Such lands, therefore, must be compensated treating them as open lands. The competent authority therefore, committed a serious error in treating such lands as constructed lands. When such error was pointed out, the same was corrected by the impugned award. He also submitted that whenever land with superstructure is acquired, separate compensation for construction is already paid. Granting compensation as if the land is constructed would amount to double compensation. 8. The competent authority therefore, committed a serious error in treating such lands as constructed lands. When such error was pointed out, the same was corrected by the impugned award. He also submitted that whenever land with superstructure is acquired, separate compensation for construction is already paid. Granting compensation as if the land is constructed would amount to double compensation. 8. As noted earlier, the law settled by series of judgments of Supreme Court is that power of review is creature of the statute and no Court or quasi judicial body or administrative authority can review its own judgment or order or decision unless it is legally empowered to do so. In absence of any such powers, either specifically vested or can be by necessary implications deduced, the quasi judicial authority cannot exercise substantive review powers. The power to correct typographical, clerical or arithmetical error always inheres in an authority but not the power of substantive review which will enable him to correct an error of law or of facts. Even substantive review powers are ordinarily hedged by limitations as in case of Order 47 Rule 1 of CPC which would enable the Court or the authority to review its order or judgment on an error apparent on the face of the record. Even when therefore there is substantive review power vested by a statute in an authority or Court, the same can be exercised not for a detailed inquiry and passing a fresh order or judgment based on re-appreciation of the materials on record. First question therefore that calls for consideration is whether the competent authority acting under section 3G of the Act had power of substantive review of its own decision on merits? If the answer to this question is in the negative, subsequent question would be is this a case of a pure typographical, arithmetical or clerical error which could be corrected in exercise of inherent powers? 9. Adverting to the first question, the said Act contains detailed provisions for acquisition of lands for the purpose of National Highway Authority the determination of compensation and such related issues. Under section 3A of the Act, the Central Government would, in appropriate cases, declare its intention to acquire certain private lands for national highways. Under section 3C, any person whose land is likely to be acquired could raise objections. Under section 3A of the Act, the Central Government would, in appropriate cases, declare its intention to acquire certain private lands for national highways. Under section 3C, any person whose land is likely to be acquired could raise objections. Under sub-section (1) of section 3D, the Central Government, where no objection has been received or after disposing of the objection if received, would declare acquisition of land by issuing a notification. Thereupon the land would vest absolutely in the Government. Section 3G of the Act pertains to determination of amount payable as compensation and reads as under: “3G. Determination of amount payable as compensation.—(1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority. (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under sub-section (1), for that land. (3) Before proceeding to determine the amount under subsection (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. (4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land. (5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration: (a) the market value of the land on the date of publication of the notification under section 3A; (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land; (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.” 10. Under sub-section (1) of section 3H the amount so determined would be deposited by the Central Government in the manner prescribed with the competent authority. In terms of section 3E of the Act, once the amount determined under section 3G is deposited, as required under sub section (1) of section 3H, the competent authority may require the land owner to handover possession of the land so acquired. 11. Section 3-I of the Act provides that the competent authority shall have, for the purposes of the said Act, all the powers of a civil court while trying a suit under the code of Civil Procedure in respect of the following matters: “(a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) reception of evidence on affidavits; (d) requisitioning any public record from any court or office; (e) issuing commission for examination of witnesses.” 12. Section 3J provides that nothing in the Land Acquisition Act, 1894 shall apply to acquisition under the said Act. 13. It can thus be seen that sections 3A to 3J of the Act provide detailed provisions for acquisition of the land by the Central Government for the National Highways. Section 3J provides that nothing in the Land Acquisition Act, 1894 shall apply to acquisition under the said Act. 13. It can thus be seen that sections 3A to 3J of the Act provide detailed provisions for acquisition of the land by the Central Government for the National Highways. These provisions are substantially different from the acquisition provisions contained in the Land Acquisition Act, 1894 and by virtue of section 3J it has been clarified that nothing contained in the Land Acquisition Act, 1894 would apply to the acquisition under the said Act. 14. Section 3G provides a detailed procedure for determination of the amount of compensation to be paid for the land acquired. It also provides for the mechanism for raising dispute about any such determination. Sub section (7) of section 3G requires the competent authority as well as the arbitrator before whom any dispute may have been raised to take into consideration various factors while determining the market value of the land and other issues related to determination of compensation to be paid for acquisition. None of these provisions substantially or even by necessary implication clothe the competent authority with the power of substantive review. If at all, section 3-I of the Act contains a negative indication where the competent authority is vested with the powers of a Civil Court trying the suit under the Code of Civil Procedure for limited purposes viz. for summoning and enforcing the attendance of the person on examining him on oath, requiring discovery production of any document, reception of evidence on affidavits, requisitioning any public record from any court or office and issuing commission for examination of witnesses. The power of review flowing from Order 47 Rule 1 of CPC is conspicuously absent. We have no hesitation in coming to conclusion that the competent authority does not have power of substantive review. The statute does not invest him with any such power. Such power by necessary implication cannot be readily inferred. 15. Despite this conclusion, we are conscious that the authority would nevertheless have inherent power of procedural review and hence the second question we had raised at the outset viz whether in the present case the exercise of powers by the competent authority can be seen as exercise of procedural review and not substantive review. 15. Despite this conclusion, we are conscious that the authority would nevertheless have inherent power of procedural review and hence the second question we had raised at the outset viz whether in the present case the exercise of powers by the competent authority can be seen as exercise of procedural review and not substantive review. In this context, we may recall, the competent authority in the original award dated 30.03.2013 had assessed the market value of the land at Rs. 15,000/- per sq.mtrs basing his compensation on the jantri rates of nearby lands which were non-agriculture constructed lands. The National Highway Authority disputed this position and brought such dispute to the notice of the competent authority under a communication dated 08.02.2014 addressed by the Project Officer. 31.01.2018 16. Perusal of such communication dated 08.02.2014 from the Project Director of National Highway Authority to the competent authority and Special Land Acquisition Officer would show that in such communication, it was only one objection raised to the computation of compensation payable to the land owners. Such objection was that the National Highway Authority is already paying separate rates for structures as per the valuation certified by the R & B department of the State. Therefore awarding compensation for the acquired land treating it as land with construction amounts to dual payment in many cases. In other words, the objection of the National Highway Authority was that the assessment of the value of the land is being done on the basis that the land is constructed land and at the same time, the National Highway Authority is made to pay separately for the superstructure, if it also comes within acquisition. Along with this communication, the authority had enclosed various documents including the opinion of the Stamp Valuation Officer in which he opined that if there is a non-agriculture plot of land partially covered under construction, the constructed area would be valued accordingly whereas the open land would be valued separately. The authority had also annexed the opinion of the legal adviser dated 28.03.2012 in which, he had expressed no opinion that there is no restriction under the law against the competent authority reviewing his own decision if new facts are brought to his notice subsequent to his passing of the award. The authority had also annexed the opinion of the legal adviser dated 28.03.2012 in which, he had expressed no opinion that there is no restriction under the law against the competent authority reviewing his own decision if new facts are brought to his notice subsequent to his passing of the award. In fact, the opinion went on to suggest that the competent authority in the interest of justice and for payment of adequate compensation to the land losers, could revisit his own decision and decide the matter afresh on actual facts by making suitable amendments in the award already passed. 17. The land owners had raised objection to the competent authority amending his award. We have taken on record one such objection dated 30.09.2014 raised by one of the partners of Jyoti Warehousing. In such objection, the objector had raised a specific issue of the power of the competent authority to review his own decision. He pointed out that the award was passed after by parte hearing and the same was also approved by the Central Government. 18. We may recall, in the letter dated 08.02.2014 the Project Director of National Highway Authority had raised one issue with respect to the awards passed by the competent authority namely of the compensation being paid for lands with superstructure which is valued as such and for which, the National Highway Authority is also required to pay separately for the loss of damage to the superstructure. The Land Acquisition Officer while passing his fresh awards however, seems to have, as explained by the counsel Shri Nanavati, reviewed the original awards on two grounds; one was the ground already raised by the Project Director in the said letter dated 08.02.2014 and the other ground was that the land may be as such fully developed and occupied by construction to the extent permissible under the building laws, nevertheless, if it is only the open portion of the land which may fall in the margin compulsorily required to be kept open as per the building regulation is acquired, should the landowner be compensated on the basis of valuation of the constructed land or open land? These aspects do not clearly emerge from the review order but have to be culled out. Review order merely states that the land under acquisition was open land but was compensated at the rate of constructed land. These aspects do not clearly emerge from the review order but have to be culled out. Review order merely states that the land under acquisition was open land but was compensated at the rate of constructed land. The petitioner has in the petition clarified that his land is fully developed and occupied by construction upto the limit provided by the building regulations. These regulations required certain portion of the land as open. But this does not mean that the acquired land should be treated as open land. The respondents have not filed reply to oppose these factual averments. The communication dated 08.02.2014 which is the basis for the review, as noted, however raise another aspect namely, a construction when acquired is compensated separately. Therefore it would be a mistake to compensate land occupied by such construction as constructed land, but should be treated as open land for compensation. 19. Both issues require detailed arguments, examination and discussion before final conclusion can be arrived at. Both the issues are open to debate. The landowners would of course argue that the compensation to be awarded for the land acquired by the National Highway Authority would be on the basis of the valuation depending on the character of the land. If the land happens to be constructed land, the valuation should be adopted accordingly. If in the process of acquiring portion of the land, any part of the superstructure is damaged or destroyed, there are statutory provisions for compensating the owner thereof. The question is, even if the compensation is to be altered, should the land compensation be adjusted or should the compensation for superstructure be withdrawn or adjusted. We are not called upon to decide these legal questions. We are only referring them to arrive at our ultimate conclusion that the corrections carried out by the Land Acquisition Officer were not in the nature of clerical, typographical or arithmetical errors. Equally debatable issue is of valuation of the open land acquired by the National Highway Authority. We are not called upon to decide these legal questions. We are only referring them to arrive at our ultimate conclusion that the corrections carried out by the Land Acquisition Officer were not in the nature of clerical, typographical or arithmetical errors. Equally debatable issue is of valuation of the open land acquired by the National Highway Authority. If the land itself is fully developed and, construction to the maximum permissible limit as per the building laws is carried out but what is acquired by the National Highways Authority is only the margin area of the land which is kept open, could the National Highway Authority argue that the valuation of the land should be adopted as if it is open land or are the landowners correct in contending that such land forms part of the plot of land which is fully developed with construction and therefore should be compensated at the rate as the land under construction and not as open land? Once again, we are not called upon to answer this question. Inevitable conclusion that we have reached therefore is that the Land Acquisition Officer by passing fresh awards was not exercising powers of mere arithmetical, clerical or typographical error. He was exercising power of substantive review which power he did not possess. 20. For multiple reasons therefore, the impugned orders must be set aside. To summarize, the Land Acquisition Officer exercised review powers which he did not have without reference to delay and laches and by expanding the scope of even the issue raised by the National Highway Authority of the communication dated 08.02.2014. 21. In the result, the impugned awards dated 17.12.2014 are set aside. Resultantly, original awards dated 30.03.2013 are restored. 22. It was argued on behalf of the respondents that the Land Acquisition Officer had committed serious error in passing the original awards. Even if the respondents were of the opinion that legal errors were committed the remedy lied in seeking reference before the Arbitrator in terms of sub-sections (5) and (6) of section 3G of the Act and not by seeking review before the same authority. Now that the position has been clarified in this judgment, it would be open for the National Highway Authority to pursue its remedies in law. 23. Now that the position has been clarified in this judgment, it would be open for the National Highway Authority to pursue its remedies in law. 23. Nothing stated in this judgment will prevent the Arbitrator from deciding the issues that may arise during the course of arbitral proceedings if so raised by the aggrieved party. All petitions are allowed to the above extent and disposed of accordingly.