Chhaganbhai Kamabhai vs Deputy Collector And Land ...
2021 Latest Caselaw 1593 Guj

                C/FA/345/2021                               ORDER




               IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                           R/FIRSTAPPEALNO. 345 of 2021

                                       With
                            R/FIRSTAPPEALNO. 346 of 2021
                                       With
                            R/FIRSTAPPEALNO. 347 of 2021
                                       With
                            R/FIRSTAPPEALNO. 348 of 2021
                                       With
                            R/FIRSTAPPEALNO. 349 of 2021
==========================================================
                      CHHAGANBHAIKAMABHAI
                             Versus
    DEPUTYCOLLECTORANDLANDACQUISITIONANDREHABILITATIONIRRIGATION
                            OFFICER
==========================================================
Appearance:
MRKARTIKV DHADHAL(6131)for the Appellant(s)No. 1
MRNITINM AMIN(126)for the Appellant(s)No. 1
MRSANJAYM AMIN(130)for the Appellant(s)No. 1
for the Defendant(s)No. 1,2
MR. BHARATVYAS,ASSISTANTGOVERNMENTPLEADER/PP(99)for the Defendant(s)No.
3
==========================================================

 CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                  Date: 03/02/2021

                                   ORALORDER

1 All the first appeals since involved identical facts and law,

they are being decided by this common order.

2. The present first appeals have arisen from the judgment, order

and award passed by the learned Principal Senior Civil Judge,

Surendranagar in various land reference cases. The proceedings

under the Land Acquisition Act,1894 were initiated by publication

C/FA/345/2021 ORDER

of notification under Section 4 of the Land Acquisition Act

(hereinafter referred to as "the Act") on 10.05.2001 and the same

got completed with award on 21.04.2005.

3. Since the respondents awarded the amount of compensation

which was not acceptable to the appellants, they have preferred

reference under Section 18 of the Act to the District Court. After

the same being duly contested, the references ended in passing of

the judgment, order and award.

4. The main grievance on the part of the appellants is that till

May 2015, the references were pending for trial in the Court of

learned Principal Senior Civil Judge, Surendranagar and on

13.05.2015 the references were transferred to Court No.12 of the

learned Civil Judge. Once again on 23.01.2017 the references were

transferred to the Court of learned Principal Civil Judge,

Surendranagar. About this internal transfers, there were no notices

to the appellants or to their advocates. In February­2018, when the

learned advocates appearing for the appellants inquired about the

status of the references, it was realized that the Court had already

declared the Award in the month of December­2017 closing the

rights of the claimants.

5. According to the appellants there are evidences in the nature

C/FA/345/2021 ORDER

of sale deed of adjoining villages reflecting the mortgage price of

the acquired land which is much more than awarded in the

references by the reference Court. According to the appellants, the

land was not merely the agricultural land but the source of

livelihood which had been compulsorily acquired by the respondent

and if the true and correct market value of land is not awarded, it is

the permanent measured loss to the owner of the land. It is further

urged that from the year 2008 till 2017 the references were not

proceeded and all of a sudden the same have been decided.

6. This Court has heard learned advocate Mr. Amin appearing

for the appellants and the learned Assistant Government Pleader

for the respondents who has resisted these appeals.

7. This Court notices that in group of First Appeals being No.

2499 of 2018 and allied matters, this Court (Coram: Hon'ble Mr.

Justice J.B.Pardiwala) on 28.08.2018, in similar circumstances, had

remanded the appeals to the reference Court and request is made

by learned advocate Mr. Amin to avail the opportunity to the

appellants herein.

8. Having considered the submissions of both the sides and also

having regard to the facts which have been narrated in these

appeals, this Court is of the opinion that the appellants as claimants

C/FA/345/2021 ORDER

have been deprived by due opportunity for leading evidence which

could have had materially made difference in the quantum of

compensation. The Court cannot be oblivious of the fact that the

possession of the acquired land was taken in the year 1996 by the

respondents and the amount of compensation which has been

awarded by the reference Court is some meagre amount. The

appellants since have been deprived by the livelihood of the

acquisition of land, they must get the sufficient opportunity to

adduce necessary evidence which would also reflect upon the

prevalent market price. The Court is also supported by the order of

the Co­ordinate Bench where the Court has expressed that

receiving higher compensation from the Court of law would be the

only hope for the land holders who have loss their lands way back

in the year 1996.

9. Apt would be to refer to the Apex Court's observation in

relation to the land acquisition, of course in a different context to

insist to the request of the appellant, which is delivered in the case

of Special Land Acquisition Officer vs. Karigowda and Others ;

reported in (2010) 5 SCC 708 . The relevant paragraphs of the

same are as under:­

"26. The legislature in its wisdom has laid down the procedures

C/FA/345/2021 ORDER

and the guidelines which have to be adopted by the authorities concerned and subsequently by the Court of competent jurisdiction in regard to the acquisition of land and payment of compensation thereof. It is expected of the State to pay compensation expeditiously. Thus, it is obligatory on the part of the Court to follow the legislative intent in exercise of its judicial discretion. The legislative intent is of definite relevancy when the court is interpreting the law.

27. Keeping in view the scheme of the Act, it will not be appropriate either to apply the rule of strict construction or too liberal construction to its provisions. The Act has a unique purpose to achieve, i.e. fulfillment of the various purposes (projects) to serve the public interest at large, for which the land has been acquired under the provisions of this Act by payment of compensation. The power of compulsive acquisition has an inbuilt element of duty and responsibility upon the State to pay the compensation which is just, fair and without delay. Thus, it will be appropriate to apply the rule of plain interpretation to the provisions of this Act."

9.1. Apt would be refer to the decision of rendered in the case of

Ambya Kalya Mhatre (Dead) Through Lrs. and others vs. State

of Maharashtra; reported in (2011) 9 SCC 325. The relevant

paragraphs are as under:­

"27. A landowner, particularly a rural agriculturist, when he loses the land may not know the exact value of his land as on the date of the notification under section 4(1) of the Act. When he seeks reference he may be dissatisfied with the quantum of compensation but may not really know the actual market value. Many a time there may not be comparable sales, and even the courts face difficulty in assessing the compensation. There is no reason why a land owner who has lost his land, should not get the real market value of the land and should be restricted by technicalities to some provisional amount he had indicated while seeking the reference. As noticed above, the Act does not require him to

C/FA/345/2021 ORDER

specify the quantum and all that he is required to say is that he is not satisfied with the compensation awarded and specify generally the grounds of objection to the award. Under the scheme of the Act, it is for the court to determine the market value.

28. The compensation depends upon the market value established by evidence and does not depend upon what the land owner thinks is the value of his land. If he has an exaggerated notion of the value of the land, he is not going to get such amount, but is going to get the actual market value. Similarly if the land owner is under an erroneous low opinion about the market value of his land and out of ignorance claims lesser amount, that can not be held against him to award an amount which is lesser than the market value. When the Act does not require the land owner to specify the amount of compensation, but he voluntarily mentions some amounts, and subsequently, if the market value is found to be more than what was claimed, the land owner should get the actual market value. We fail to see why the land owner should get an amount less than the market value, as compensation. Consequently, it follows that if the land owner seessk amendment of his claim, he should be permitted to amend the claim as and when he comes to know about the true market value. When the Act is silent in regard to these matters, to impose any condition to the detriment of an innocent and ignorant land owner who has lost his land, would be wholly unjust.

29. The Collector making the offer of compensation on behalf of the state is expected to be fair and reasonable. He is required to offer compensation based on the market value. Unfortunately Collectors invariably offer an amount far less than the real market value, by erring on the safer side, thereby driving the land owner first to seek a reference and prove the market value before the reference court and then approach the High Court and many a time this Court, if he does not get adequate compensation. In most land acquisitions, the land acquired is the only source of his livelihood of the land owner. If the compensation as offered by the Collector is very low, he cannot buy any alternative land. By the time he fights and gets the full market value, most of the amount would have been spent in litigation and living expenses and the price of lands would have

C/FA/345/2021 ORDER

appreciated enormously, making it impossible to buy an alternative land. As a result, the land owner seldom has a chance of acquiring a similar land or an equal area of similar land. It would be adding insult to injury, if the land owner should be tied down to a lesser value claimed by him in the reference application, even though he was not required by law to mention the amount of compensation when seeking reference. The Act contemplates the land owner getting the market value as compensation and no technicalities should come in the way of the land owner getting such market value as compensation.

30. It is relevant to notice the definition of land in section 3(a) of the Act. It provides that

3.(a) the expression "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.

31. Therefore when the Act refers to acquisition of `land', the reference is not only to land but also to land, building, trees and anything attached to the earth. In the absence of any restriction in section 18 of the Act, and the respective roles assigned by the Act to the Land Acquisition Collector and the Reference Court in the context of making a reference and determining the compensation, we are of the view that once the reference is made in regard to amount of compensation, the Reference Court will have complete jurisdiction to decide the compensation for the land, buildings and trees and other appurtenances. The Reference Court will also have the power to entertain any application for increasing the compensation under whatever head. The fact that the landowner had sought increase only in regard to the land in the application for reference, will not come in the way of the landowner seeking increase even in regard to trees or structures, before the Reference Court. "

10. Resultantly, all these appeals are ALLOWED. The matters are

remanded to the reference Court below for fresh consideration on

merits where the appellants would be given the fullest opportunity

to lead oral as well as documentary evidences in support of the

C/FA/345/2021 ORDER

contentions including for establishing the quantum of

compensation. The Court below shall complete this exercise within

a period of SIX MONTHS from the date of receipt of copy of writ of

this order.

(BIRENVAISHNAV,J) BIMAL