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2024 DIGILAW 1591 (GUJ)

Amaratlal Jividas Patel v. State Of Gujarat

2024-07-22

PRANAV TRIVEDI, SUNITA AGARWAL

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JUDGMENT : (PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) 1. In this group of petitions, Special Civil Application No. 3384 of 2020 has been filed by the land holders for the relief that they be awarded compensation as per the Supplementary Award dated 08.05.2019 passed by the Special Land Acquisition Officer, ONGC under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 2. The connected Special Civil Application No. 6749 of 2020 has been filed by the ONGC, the acquiring body, to challenge the validity of the Government Resolution dated 04.04.2018 and 11.09.2018 with the assertion that the said resolutions are ultra vires the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Further challenge is to the Award dated 14.08.2018 passed by the respondent no.2, viz. the Special Land Acquisition Officer, ONGC, as also the Supplementary Award dated 08.05.2019 on the plea of being unreasonable, unconstitutional and illegal. 3. The facts relevant to decide the controversy at hand are that a consent term dated 11.01.2017 was entered into between the parties, viz. ONGC and the land holders. A Consent Award dated 14.08.2018 under Section 23A of the Gujarat Amendment Act, 2016 was published on 20.09.2018. As per the statement made in the Writ petition filed by the ONGC, it is an admitted fact of the matter that the land holders have been paid compensation under the Consent Award dated 14.08.2018 published on 20.09.2018. 4. It is stated in paragraph 4.5' of the Writ petition filed by the ONGC that in view of the communication dated 20.09.2018 received from the Special Land Acquisition Officer, ONGC, the Corporation had deposited the remaining amount of 20% as per the Consent Award dated 14.08.2018 vide letter dated 23.10.2018. However, on 05.07.2019, the Corporation (ONGC) had received a letter from the office of the Additional District Collector, Mehsana and again on 08.07.2019, a letter was received from the office of the Collector, Mehsana asking the ONGC to give consent for payment of additional amount of Rs. 4,20,97,374/-, for making the supplementary award on the ground that the land owners have demanded additional compensation as per the resolution dated 11.09.2018 passed by the Revenue Department, Government of Gujarat. 5. 4,20,97,374/-, for making the supplementary award on the ground that the land owners have demanded additional compensation as per the resolution dated 11.09.2018 passed by the Revenue Department, Government of Gujarat. 5. In response thereto, the communications dated 22.10.2019 and 22.11.2019 were sent to the Collector, Mehsana stating that the Corporation (ONGC) is not liable to pay any additional amount of compensation towards the market value demanded by the land holders, determined by the Special Land Acquisition Officer, as per the Government Resolution dated 11.09.2018. However, vide letter dated 23.12.2019, the Corporation has been served with the impugned Supplementary Award dated 08.05.2019 whereunder, additional compensation as per the Government Resolution dated 11.09.2019 was directed to be paid by the ONGC to the land holders. 6. It was vehemently argued by the Mr. Mihir Joshi, learned Senior counsel for the ONGC that the Special Land Acquisition Officer was denuded of the power to amend the Award dated 14.08.2018, which was essentially a consent award by applying the Government Resolution dated 11.09.2018, and the claim of the land holders was nothing but an afterthought. The attention of the Court is invited to the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Gujarat) Rules, 2017 to assert with the aid of Rule 9 contained in Chapter-III that the consent once given in the manner prescribed in Form VI before the competent officer, cannot be withdrawn by the land holders. 7. With the aid of Rule 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Gujarat) Rules, 2017 (for short "Gujarat Rules, 2017"), it is submitted by the learned Senior counsel appearing for the ONGC that when interested persons appear and produce their consent as required under Section 23A, the Collector shall make an agreement in Form XI. The amount of compensation agreed between the parties is required to be paid in accordance with the provisions of the Act as soon as the consent award is declared by the Collector. The 80% of the compensation amount shall have to be paid immediately to the interested persons. Rule 26 of the Gujarat Rules, 2017, relevant for our purposes, is extracted hereinbelow :- "26. The 80% of the compensation amount shall have to be paid immediately to the interested persons. Rule 26 of the Gujarat Rules, 2017, relevant for our purposes, is extracted hereinbelow :- "26. Consent Award :- During the course of enquiry under Section 21 of the Act, when interested persons appear and produce their consent as required under the provisions of section 23A the Collector shall pass the award and the interested persons shall make an agreement in Form - XI. The Collector shall execute the proceedings and thereby pronounce the award on basis of terms and condition of the consent agreement. The amount of compensation which is required to be paid in accordance with the provisions of the Act, necessary care shall be taken that lesser amount is not paid. As soon as the consent award declared by the Collector the 80% amount of compensation shall be made immediately to the interested persons." 8. The submission, thus, is that once the terms of the agreement had been signed in Form XI as per Rule 26 of the Gujarat Rules, 2017, the interested persons, viz. the land holders could not have withdrawn their consent to seek for the amendment of the award for providing them the benefit of the Government Resolution dated 11.09.2018. The submission, thus, is that the determination made by the Special Land Acquisition Officer under the Supplementary Award dated 08.05.2019, communicated to the ONGC vide letter dated 04.07.2019 and 08.07.2019, is liable to be struck down. 9. Though in the Writ petition filed by the ONGC, various grounds have been raised to challenge the validity of the Government Resolutions dated 04.04.2018 and 11.09.2018, for making the consent award under Section 23A, being contrary to the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, but not much could be argued in that respect. Taking into account the consent terms signed by the parties in the Agreement dated 11.01.2017 in Form XI the consent award had been published on 20.09.2018. Pertinent is to note that there is complete silence in the Writ petition about the consent given by the ONGC to the draft award prepared on 14.08.2018, which was published on 20.09.2018. Taking into account the consent terms signed by the parties in the Agreement dated 11.01.2017 in Form XI the consent award had been published on 20.09.2018. Pertinent is to note that there is complete silence in the Writ petition about the consent given by the ONGC to the draft award prepared on 14.08.2018, which was published on 20.09.2018. Further, as per the statement made in paragraph 4.5' of the Writ petition filed by the ONGC, as noted hereinbefore, it is admitted that the compensation under the Consent Award dated 14.08.2018, published on 20.09.2018, had been paid to the land holders. 10. Before proceeding further, we may note that the Gujarat Amendment Act No.12 of 2016, which has been notified with the assent of the President in the Gujarat Government Gazette on 12.08.2016 to further amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in its application to the State of Gujarat. Section 4 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Gujarat Amendment) Act, 2016 (for short "Gujarat Amendment Act, 2016"), relevant for our purposes, is extracted hereinbelow :- "4. In the principal Act, after section 23, the following section shall be inserted, namely:- "23A. (1) Notwithstanding anything contained in section 23, if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the State Government, he may, without making further enquiry, make an award according to the terms of such agreement. (2) The determination of compensation for any land under sub-section (1) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act. (3) Notwithstanding anything contained in the Registration Act, 1908, no agreement made under sub-section (1) shall be liable to registration under that Act." 11. (3) Notwithstanding anything contained in the Registration Act, 1908, no agreement made under sub-section (1) shall be liable to registration under that Act." 11. Further, it may be noted that the Government Resolutions dated 04.04.2018 and 11.09.2018 had been issued by the State Government for easy implementation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, stating therein that the purpose of issuance of the Government Resolutions is to ensure not to give compensation lesser than the provisions of the Gujarat Amendment Act, 2016, notified on 15.08.2016. A perusal of the Government Resolution dated 04.04.2018 indicates that it refers to Section 23A inserted by Gujarat Amendment Act, 2016 in the original Section 23 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, wherein it is provided that when the land owners and the acquiring body have a consent over the land's measurement, type and compensation, the Land Acquisition Officer can make a consent award without making any further inquiry after execution of the model agreement. The agreement dated 11.01.2017 in Form XI, as required under Section 23A of the Gujarat Amendment Act, 2016 and Rule 26 of the Gujarat Rules, 2017, thus, can be referred as the model agreement signed by the interested parties, viz. the land holders. 12. However, it may further be noted that the incentives provided in the Government Resolution dated 04.04.2018 are with a view to avoid any dissatisfaction amongst the land holders in the matter of making of the consent award. The language employed in the Government Resolution dated 04.04.2018 makes it evident that the incentives provided therein, such as "Protsahan Valtar" (Incentive Compensation) was with a view to bring the land holders on board to give away their lands for the projects of public purpose. The Government Resolution dated 04.04.2018 provides that the Government has declared that when farmers are giving their private lands for public purpose, an additional amount of 25% of the market value shall be paid as "Protsahan Valtar" and the compensation amount under the consent award shall be paid in accordance with the formula given in the table extracted therein. The Government Resolution dated 04.04.2018 provides that the Government has declared that when farmers are giving their private lands for public purpose, an additional amount of 25% of the market value shall be paid as "Protsahan Valtar" and the compensation amount under the consent award shall be paid in accordance with the formula given in the table extracted therein. A comparison of regular award and consent award has been given in the table, which indicates that in case of consent given by the farmers/land holders, "Protsahan Valtar" of 25% of the market value is to be paid to the land holders apart from the other elements such as Market value multiplied by factor 2 in case of the land of the rural area and 100% solatium. It further clarifies that 25% of additional "Protsahan Valtar" on the original compensation amount shall be payable once and it shall not be multiplied by the factor and before declaring the consent award, the written consent from the acquiring body is required to be taken. 13. As there is a complete silence in the Writ petition by the ONGC about the consent having been given by it as an acquiring body to the Award dated 14.08.2018, published on 20.09.2018, we do not find any reason to attach any illegality to the consent award dated 14.08.2018, declared on 20.09.2018 under which the compensation amount had already been paid to the land holders as per the statement made by the ONGC. The only question remains is about the correctness of the Supplementary Award dated 08.05.2019 prepared by the Special Land Acquisition Officer, ONGC, communicated through letters dated 04.07.2019 and 08.07.2019. 14. Before entering into the implications of the Government Resolution dated 11.09.2018, which is the bone of contention of the ONGC, we may go through the Supplementary Consent Award dated 08.05.2018, which is in two parts. The first part of the Supplementary Award records that after taking possession of the land as per the consent agreement dated 11.01.2017, 80% of the amount of compensation had been paid to the land holders by the ONGC on the said date and thereafter, the process for obtaining permission for Consent Award vide letter dated 19.02.2018 to the Collector, Mehsana had been initiated, whereafter the Consent Award was pronounced on 20.09.2018, after which 20% of the remaining compensation had been paid to the land holders. However, the interest on the remaining 20% of the amount of compensation, which was paid after the declaration of the consent award dated 20.09.2018, had not been included in the award, though it was required to be paid to the land holders. The statutory interest under Section 80 of the Act' 2013 at the rate of 9% on the remaining 20% amount for the first year and 15% for the remaining period has, thus, been held payable to the land holders. The Special Land Acquisition Officer records that the demand made by the land holders for payment of the statutory interest on the remaining 20% amount is admissible as per the Rules and being reasonable, is liable to be allowed. 15. Taking note of this part of the Supplementary Award dated 08.05.2019, suffice it to say that the consent agreement in Form XI dated 11.01.2017 was a model agreement, which determines the rate of compensation, market value payable to the land holders as agreed by the ONGC. The Government Resolution dated 04.04.2018 had been issued as a clarification to provide incentives to the land holders who gave away their private lands on consent in accordance with the provisions of Section 23A of the Gujarat Amendment Act, 2016 and Rule 26 of the Gujarat Rules, 2017. The Government Resolution dated 04.04.2018 further clarifies that the market value of the land shall be decided as per Section 26 of the Land Acquisition Act, 2013 and that the interim compensation to the tune of 80% shall be paid to the land holders at the time of taking possession. For the remaining 20%, which was to be paid after completion of the legal procedure for declaration of the consent award under Section 23A, payment of the statutory interest from the date of taking possession till the date of making payment at the rate of 9% and 15% under Section 80 of the Act, 2013, cannot be said to be illegal, inasmuch as, it was incumbent upon the acquiring body to pay interest of the unpaid compensation amount from the date of taking of possession of the land in question till the date of payment under the consent award. In fact, the interest amount was required to be computed and added in the consent award. 16. In fact, the interest amount was required to be computed and added in the consent award. 16. The Special Land Acquisition Officer, while declaring the Consent Award dated 14.08.2018 has skipped the requirement of Rule 26 of the Gujarat Rules, 2017 for making the consent award, which has been rectified by declaring the land holders being eligible for the statutory interest of 9% and 15% on the remaining 20% of the agreed compensation, which was paid after declaration of the consent award dated 20.09.2018. No error can be attached to the said computation made by the Special Land Acquisition Officer. The land holders are held entitled to the interest amount computed accordingly under the Supplementary Award dated 08.05.2019 prepared by the Special Land Acquisition Officer ONGC, Unit-2, Mehsana. 17. Coming to the second part of the Supplementary Award, which is the calculation of the compensation at the rate of Rs.1998/- per sq. mtr. by applying the Indexation Formula, we may go through the Government Resolution dated 11.09.2018, which provides to consider Indexation Formula while declaring the award under the Gujarat Amendment Act, 2016. Opening paragraph of the Government Resolution dated 11.09.2018 states that it has been issued for the purpose of easy implementation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and with a purpose to not to give compensation lesser than the provisions of the Gujarat Amendment Act, 2016, notified on 15.08.2016. 18. The second paragraph of the said Resolution refers to the methodology to decide the market value under Section 26 of the Land Acquisition Act, 2013, which has three components in the alternative :- (1) Value decided for Registered Sale Deed/Agreement to Sale/Deed under Stamp Act, 1889 (Jantri Value) Or (2) Value of the similar land situated in near vicinity or village Or (3) Amount decided with consent for private land acquisition. 19. It is further stated therein that the highest value amongst the above three methods shall be considered to decide the compensation amount. Further, the Resolution speaks of the requirement of application of Factor 2 as per the provisions of Section 26(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and the resolution of the department dated 29.07.2016. The compensation amount, thus, was to be computed in accordance with the statement made in the Government Resolution dated 11.09.2018. 20. The compensation amount, thus, was to be computed in accordance with the statement made in the Government Resolution dated 11.09.2018. 20. The last paragraph of the said Government Resolution, relevant for the controversy, is to be extracted hereinunder :- "Apart from the above facts, for the purpose of important projects of the government where possession of the land is required compulsorily, the Government was considering to apply Indexation Formula declared by the Income Tax Department, Government of India on the Jantri Rates-2011 to decide the compensation amount. Accordingly, the farmers who decide to give their land under consent award as per the resolution dated 4.4.2018 and where the acquiring body is agreeable to pay compensation after applying indexation formula, in those cases indexation formula is required to be applied on Jantri Value of 2011." 21. A reading of the said paragraph indicates that in case of important projects of the Government where possession of the land is required compulsorily, the Government has considered to apply Indexation Formula declared by the Income Tax Department on the Jantri rates of 2011 to decide the compensation amount. It further provides that in case of the land holders who decide to give their land under the consent award as per the resolution dated 04.04.2018 and where the acquiring body is agreeable to pay compensation after applying Indexation Formula, in those cases, Indexation Formula is required to be applied on the Jantri value of 2011. 22. A careful reading of the aforesaid paragraphs further makes it clear that the application of the Indexation Formula for the purpose of computation of the compensation amount is stated to be added, apart from the other factors stated in the Government Resolution dated 11.09.2018 about the methodology to decide the market value and application of Factor 2 for the rural area land as per Section 26(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 23. It is, thus, evident that application of Indexation Formula on Jantri value of 2011 is also one of the incentives given by the State Government for the purpose of important projects of the Government where possession of the land is required compulsorily. 23. It is, thus, evident that application of Indexation Formula on Jantri value of 2011 is also one of the incentives given by the State Government for the purpose of important projects of the Government where possession of the land is required compulsorily. The Special Land Acquisition Officer, thus, was required to take into account the Indexation Formula as per the Government Resolution dated 11.09.2018 before declaration/publication of the Award on 20.09.2018, inasmuch as, the Government Resolution dated 11.09.2018 is in the nature of clarification to the Government Resolution dated 04.04.2018. All benefits under the Government Resolution dated 04.04.2018 read with Government Resolution dated 11.09.2018 were required to be taken into account in the Consent Award published on 20.09.2018 in view of the requirement of Rule 26 of the Gujarat Rules, 2017, which clearly states that necessary care shall be taken that lesser amount is not paid to the land holders. 24. However, the only issue left before us is about the consent of the acquiring body, i.e. ONGC, which was required to be taken to apply the Indexation Formula under the Government Resolution dated 11.09.2018. As this has not been done in the Consent Award declared on 20.09.2018, it seems that the land holders filed an application to include the said aspect for making a Supplementary Award. At this stage, the acquiring body (ONGC) seeks to withdraw the consent given by it to the Award dated 14.08.2018, published on 20.09.2018, which cannot be permitted. From this point of view as well, the ONGC cannot be permitted to challenge the Consent Award dated 14.08.2018, published on 20.09.2018, under which the compensation amount has been paid to the land holders. 25. However, the ONGC is not agreeable to the Indexation Formula applied by the Special Land Acquisition Officer in the Supplementary Award dated 08.05.2019, which was brought into force vide Government Resolution dated 11.09.2018 on the premise that the consent award under Section 23 of the Gujarat Amendment Act, 2013 was prepared on 14.08.2018 and the ONGC had deposited the remaining 20% of the compensation amount vide letter dated 23.10.2018. 26. It further seems from the record that the Indexation Formula could not be included in the Consent Award dated 14.08.2018, which was sent to the ONGC and published on 20.09.2018. The Indexation Formula was notified after preparation of the consent award dated 14.08.2018. 26. It further seems from the record that the Indexation Formula could not be included in the Consent Award dated 14.08.2018, which was sent to the ONGC and published on 20.09.2018. The Indexation Formula was notified after preparation of the consent award dated 14.08.2018. In the interregnum, between the date from the preparation of the consent award, i.e. 14.08.2018 and publication of the same on 20.09.2018, the Government Resolution dated 11.09.2018 came into force, which seems to have not been applied by the Special Land Acquisition Officer as the draft award was already prepared and sent to the ONGC, i.e. the acquiring body for obtaining their consent. 27. For the above discussion, though we are of the opinion that the Indexation Formula was required to be applied after the notification of the Government Resolution dated 11.09.2018, as one of the incentives provided by the State Government for avoiding any dispute for compulsory acquisition of the private land through consent for important projects of the Government, however, no infirmity can be attached to the consent award dated 14.08.2018, published on 20.09.2018, for not applying the Indexation Formula notified by the Government Resolution dated 11.09.2018. For this reason, we find that in absence of the consent of the acquiring body (ONGC), the Supplementary Award dated 18.05.2019 for payment of additional amount of compensation by applying the Indexation Formula to the Jantri value of 2011, cannot be implemented. 28. With the above, the challenge to the Supplementary Award dated 08.05.2019 prepared by the Special Land Acquisition Officer, ONGC, Unit-2, Mehsana is liable to be sustained to the above extent only. 29. Both the petitions filed by the land holders as well as the ONGC are allowed in part with the above observations, holding that :- i. The land holders are entitled for the interest amount computed under the Supplementary Award dated 08.05.2019 at the rate of 9% on the remaining 20% amount of compensation for the first year and 15% for the remaining period, till the date of payment of the said amount. ii. However, the remaining amount of compensation determined under the Supplementary Award dated 08.05.2019 by applying Indexation Formula to the price of Jantri Rates-2011 is not payable by the ONGC or the land holders are not entitled for the said additional amount of compensation determined under the Supplementary Award dated 08.05.2019. iii. ii. However, the remaining amount of compensation determined under the Supplementary Award dated 08.05.2019 by applying Indexation Formula to the price of Jantri Rates-2011 is not payable by the ONGC or the land holders are not entitled for the said additional amount of compensation determined under the Supplementary Award dated 08.05.2019. iii. The interest computed under the Supplementary Award dated 08.05.2019 shall be deposited forthwith by the ONGC and be paid to the land holders within a period of four weeks from the receipt of the copy of this order by the office of the Collector, Mehsana (Special Land Acquisition Officer, Unit-2, Mehsana) 30. Both the petitions are allowed in part. Connected Civil Application would not survive and shall stand disposed of.