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2022 DIGILAW 1076 (GUJ)

Late Zenabhai Nathabhai Since Decd. Through His Heirs And Legal Representatives v. North Gujarat University Through The Registrar

2022-09-27

A.S.SUPEHIA

body2022
JUDGMENT : 1. The present Civil Revision Applications emanate out of common judgment and award. Since a short issue is involved in the applications, they are heard and decided analogously by this common judgment and order. 2. It is painful to notice that even after passage of more than 35 years, the dispute between the claimants and the acquiring body is not laid at rest. 3. The disputes stem out of the notification issued under section 4 of the Land Acquisition Act, 1894 (for short “the Act") in the year 1987 declaring an intention to acquire the subject land along with other parcels of land for the purpose of establishing Head Quarter of North Gujarat University at Village Samalpati and Village Matarvadi of Taluka Patan of the then District Mahesana (now Patan district). 4. There are various proceedings inter se between the claimants as well as the acquiring body, which I would not like to refer at length since the Coordinate Bench of this Court in the judgment dated 07.05.2019 passed in Civil Revision Application No.547 of 2018 and allied matters, has referred to the facts and the earlier proceedings between the parties. 5. So far as the acquisition of the land proceedings and the award passed by the Reference Court are concerned, the same has become final till the Apex Court, however, the issue with regard to the payment of enhanced market value under the provisions of section 23 (1-A) of the Act, only remains to be examined, that too at the time of execution proceedings, which have been initiated by the claimants before the court below. 6. Learned Senior Advocate Mr.H.M.Parikh with learned Advocate Mr.Mehul Rathod appearing on behalf of the claimants have submitted that the impugned order dated 30.11.2019 passed by Principal Senior Civil Judge, Patan, below Exh.1 in LAR Execution Nos.34 of 2012 to 56 of 2012 has committed an error by fixing and awarding an amount, as stated in the final order, by excluding the period from September, 1988 to 10.08.1994, which was required to be awarded as per the provisions of Section 23(1-A) of the Act. It is submitted that it was not open for the Reference Court to exclude such period, once the award has become final till the Apex Court on the objection raised by the acquiring body, and if at all the acquiring body was aggrieved by such observations in the original award, it should have preferred an appeal against the final award passed by the Reference Court, however, neither in such proceedings nor before this Court or the Apex Court any contention is raised by the acquiring body that the claimants are not be entitled for the enhanced market amount of the land under the provisions of Section 23(1-A) of the Act for the period from 1988 to 1994, which is calculated @ 12% per annum. 7. It is contended that the Reference Court was alive to the issue of payment of additional compensation @12 under the provisions of section 23(1-A) of the Act and accordingly has awarded the aforesaid amount from the date of notification dated 23.05.1987 to award 04.09.1996. 8. Learned advocates appearing for the claimants have submitted that the dispute only pertains to the observations made in Paragraph No.10 of the impugned order which specifies the period i.e. from September, 1988 to 10.08.1994 for paying the amount. It is further submitted that pursuant to the interim orders passed by this Court while further staying the award passed by the Reference Court, all the claimants were paid an amount of Rs.21/-, which was paid to the claimants by including the aforesaid period from 1988 to 1994 and hence, for the rest of the additional compensation, the court below should not have excluded such period since the same would be contrary to the interim orders passed by this Court. Hence, it is submitted that the impugned order may be quashed and set aside to the extent that it denies the additional compensation under the provisions of section 23(1-A) of the Act for the period from September, 1988 to 10.08.1994. 9. Hence, it is submitted that the impugned order may be quashed and set aside to the extent that it denies the additional compensation under the provisions of section 23(1-A) of the Act for the period from September, 1988 to 10.08.1994. 9. Finally, it is submitted that as per the provisions of Section 23(1-A) of the Act the explanation to sub-section (1-A) to section 23 of the Act refers “any period or periods during which the proceedings for the acquisition of the land” were held-up on account of any stay or injunction by the order of any Court which shall be excluded, however, in the present case it is asserted by them that the acquisition of the land was not stayed by any of the courts below. 10. Per contra, learned advocate Mr.Gandhi has submitted that the acquiring body can raise the objection with regard to the calculation of the amount, as envisaged under section 23(1-A) of the Act even during the execution proceedings. He has referred to the explanation below sub-section (1-A) of section 23 of the Act and has submitted that if any stay is granted by the Court in the proceedings, even on a single parcel of land, the same shall operate in cases of other lands which are acquired by the acquiring body for the same purpose. In support of his submission, he has placed reliance on the judgment in the case of State of Maharastra and Ors. vs. Moti Ratan Estate & Anr., (2019) 8 SCC 552 . Thus, it is submitted that the impugned order is appropriately passed by denying the additional compensation for the period from September, 1988 to 10.08.1994. 11. So far as the submission advanced by the learned advocates appearing for the claimants, with regard to the payment of Rs.21/- per sq.mtr. to the claimants pursuant to the interim order passed by this Court by considering the entire period, it is submitted that the same cannot be pressed since it was an interim order. CONCLUSION: 12. 11. So far as the submission advanced by the learned advocates appearing for the claimants, with regard to the payment of Rs.21/- per sq.mtr. to the claimants pursuant to the interim order passed by this Court by considering the entire period, it is submitted that the same cannot be pressed since it was an interim order. CONCLUSION: 12. The issue raised in the present proceedings is only confined to the payment of additional amount of the market value of the land as stipulated in Section 23(1-A) of the Act, which reads as under: “23(1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market-value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation. —In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.” 13. After all the proceedings are finalized between the parties, the claimants filed the execution proceedings being LAR Execution Nos.34 of 2012 to 56 of 2012 for claiming the amount as per the original judgment and award, which has been confirmed by this Court as well as the Apex Court. By the impugned order dated 30.11.2019 passed in the aforesaid execution proceedings, the court below has awarded an amount of Rs.12,64,85,573/-. 14. Further, in Paragraph No.10 of the impugned order, the court below has observed that the claimants would not be entitled to any amount under the provisions of section 23(1- A) of the Act for the period from September, 1988 to 10.08.1994. 14. Further, in Paragraph No.10 of the impugned order, the court below has observed that the claimants would not be entitled to any amount under the provisions of section 23(1- A) of the Act for the period from September, 1988 to 10.08.1994. A plain and simple reading of the provisions of section 23(1-A) of the Act suggests that in addition to the market value of the land, as provided in the said section, the court shall, in every case, award an amount calculated @ 12% per annum on such market value for the period commencing on and from the date of publication of the notification under section 4, sub-section (1) of the Act, in respect of such land to the date of award of the Collector or the date of taking possession of the land, whichever is earlier. 15. The issue raised in the present proceedings hinges on the explanation provided below sub-section (1-A) of Section 23 of the Act. It is the case of the acquiring body that the claimants are not entitled to the additional amount as per the provisions of sub-section (1-A) of the Act since during the proceedings there was stay in operation on such proceedings by this Court in some other parcel of land, which was acquired by the same acquiring body. 16. On a specific query raised by this Court to the learned advocate appearing on behalf of the acquiring body to show as to whether there was any stay on the proceedings of the acquisition of land which are subject matter of the execution proceedings, it is reported that there was no stay operating on the proceedings on the acquisition land, however, it is informed that this Court in another parcel of land, which was acquired by the very same body for the very same purpose, in a writ petition being Special Civil Application No.2774 of 1988 vide order dated 03.06.1988 granted interim injunction restraining the respondents from taking possession of the land. It is also not in dispute and an admitted fact that in the present proceedings, no stay was in operation on the “acquisition of land”, however, in one of the writ petitions with regard to one of the claimants i.e. legal heirs of deceased Yusufbhai Noormohmad Nandliya, this Court had granted interim stay with regard to “possession of land”. It is also not in dispute and an admitted fact that in the present proceedings, no stay was in operation on the “acquisition of land”, however, in one of the writ petitions with regard to one of the claimants i.e. legal heirs of deceased Yusufbhai Noormohmad Nandliya, this Court had granted interim stay with regard to “possession of land”. However, this Court is not apprised of any order passed under section 23(1-A) of the Act, as to whether the benefit was granted or denied. Be that as it may. It appears that in the execution proceedings the court below has construed the expression “with regard to the proceedings for the acquisition of land”, as stipulated in the explanation below sub-section (1-A) of section 23 of the Act as “the proceedings with regard to the stay in further proceedings after the acquisition of land” and “stay on possession”. The court below has fallen in error in interpreting the true intention and purport of the expression provided in the explanation to sub-section (1-A) of Section 23 of the Act. 17. It is not in dispute that the interim order granting such additional compensation of Rs.21/- per sq.mtr. for the entire payment has become final up to the Apex Court and the acquiring body has never sought any clarification in this regard. It is not open for the acquiring body to raise objection, on the amount which is to be awarded under the provisions the sub-section (1-A) of section 23 of the Act in an execution petition. The statue specifically declares that the Reference Court, while passing the final award has to consider the provisions of section 23(1-A) of the Act, including the explanation, which is actually done by the Reference Court while passing the original award. No objection is raised by the acquiring body at the same time and also in subsequent proceedings and hence, in wake of such undisputed fact, the objection raised in this regard is hit by doctrine of estoppel. 18. All the aspects, with regard to awarding of compensation, including the interest part has to be clarified during the proceedings, either before the Reference Court or in further proceedings before this Court or the Supreme court. 18. All the aspects, with regard to awarding of compensation, including the interest part has to be clarified during the proceedings, either before the Reference Court or in further proceedings before this Court or the Supreme court. In case the acquiring body is aggrieved by the fixation of period and the awarding of amount under the provisions of section 23(1-A) of the Act at the time of passing the award, it should be challenged before the higher forum. Once the award of the Reference Court with regard to such fixation remains unquestioned, and has been finalized in all proceedings, the acquiring body cannot be allowed to raise any objection subsequently in the executing proceedings. In the present case, the acquiring body has chosen to raise such objection when the claimants had filed the execution proceedings seeking compensation emanating from the award, which has become final by the Apex Court. The claimants have been waiting to enjoy the fruit of their litigation since 1987 and for all these years, the acquiring body did not think it fit to clarify the aspect with regard to the grant of additional compensation under section 23(1-A) of the Act. 19. The impugned order is tainted with non-application of mind on the aspects of law and facts so far it directs to exclude the period from 1988 to 1994 for the purpose of calculating the amount under the provision of section 23(1-A) of Act. 20. Thus, the impugned order dated 30.11.2019 passed by Principal Senior Civil Judge, Patan, below Exh.1 in LAR Execution Nos.34 of 2012 to 56 of 2012 is modified to the extent that the claimants shall be entitled to the amount as determined under the provisions of section 23(1-A) of the Act for the period from September, 1988 to 10.08.1994 as per the directions issued in the original award, while deciding the reference. So far as the grant of interest for the amount for the aforesaid period is concerned, the same shall be paid as per the directions issued by the Reference Court in Paragraph No.5 of the award. 21. Necessary exercise shall be undertaken by the acquiring body and rest of the amount shall be paid to the claimants within a period of three months from the date of receipt of the order. 22. 21. Necessary exercise shall be undertaken by the acquiring body and rest of the amount shall be paid to the claimants within a period of three months from the date of receipt of the order. 22. After the aforesaid directions are issued, learned advocate Mr.Gandhi has submitted that they have to secure the payment from the State Government and only after the said amount is paid by the State Government, the acquiring body will be able to disburse the amount to the claimants. 23. Under the circumstances, the State Government is directed to disburse/pay such amount to the acquiring body within a period of 02 (two) months and on receipt of such amount, the acquiring body shall pay the same to the claimants with a further period of 02 (two) months. In any case, it is directed that the payment of the amount, as ordered by this Court, shall not be delayed for more than a period of 04 (four) months from the date of receipt of the writ of the order of this Court and shall be paid within such period, failing which such amount shall further carry an interest @ 6% per annum, over and above the interest paid/awarded by the Reference Court. Accordingly, all the Civil Revision Applications are allowed. 24. After the aforesaid order was dictated, learned advocate Mr.Gandhi has prayed for staying of the aforesaid directions, the same is not acceded to since the claimants are unnecessarily dragged in further proceedings and are waiting since long for their compensation.