KANJIBHAI HARIDAS PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Common award made by the Assistant Judge, Panchmahals at Godhra in Land Acquisition Reference No. 10 of 1982 to 20 of 1982 dated 3 1/12/1985 has been challenged by the appellants in this group of first appeals whereunder the reference court concerned has allowed the said references and has granted the additional amount of compensation including solatium and costs and interest at the rate of 4 % p.a. from the date of taking over the possession till the date of actual payment less the amount already received by the appellants. As per the impugned award, the reference court has granted Rs.190.00 per Are for Kyari lands and irrigated lands andRs.140.00 per Are for unirrigated Jarayat lands and Rs.100.00 per Are for the waste lands. The reference court has calculated compensation as per the decision in case of each of the claimants at this rate and the reference court has prepared tabular form in respect of the compensation payable to each of the claimants as per the details given in the tabular form attached to the judgment. The reference court has also declared that each of the appellants will be entitled to solatium at the rate of 15 per cent on the additional amount of compensation and they would also be entitled to interest on the additional amount of compensation from the date of taking of the possession till the payment is made at the rate of 4 per cent per annum. It was further directed by the reference court under the impugned award that the claimants whose lands were of new tenure shall have to be paid five per cent less on the additional amount of compensation being the Government share. All the said references were made by the Special Land Acquisition Officer at the instance of the appellants herein. All the said references were arising out of the award made by the special land acquisition officer, Dahod in Land Reference No. 74 of 1979 dated 8/03/1982 arising out of the common acquisition for common purpose i.e. Machhana Nala Dam Scheme and all the lands are of Nansalai, and are almost of the same quality and by consent of the parties, said references were disposed of by the reference court by common judgment. Reference No. 10 of 1982 was treated as the main reference and all the evidence has been recorded and received in that case. All the said references were arising out of the common acquisition . The facts leading to the present appeals, in brief, are to the effect that the State of Gujarat intended to erect a dam over Machhan river and plans were prepared and proposal was made to the Government and the Government accepted it and for that purpose, several lands were proposed to be acquired to create a reservoir which lands included were of village Nansalai, Sapoi Tandi and other small villages. The Government declared its intention of acquiring several survey numbers including the lands involved in the said references particularly described in the schedule attached to the judgment of the reference court and a notification under section 4 of the Land Acquisition Act was published in the Government Gazette on 25.4.1974. After issuance of the notices, notification under section 6 of the Land Acquisition Act was published in the Government Gazette on 28.4.1977. Notices under section 9 of the Act were also issued to various claimants and the claimants herein appeared before the Special Land Acquisition Officer and claimed compensation for their lands at the rate of Rs.500.00 per Are for Kyari lands, at a rate of Rs.325.00 per Are for Jarayat lands and at a rate of Rs.125.00 per Are for waste lands. It was the submission of the claimants that inspite of that, the special land acquisition officer made an award dated 8.3.1982 and awarded Rs.120.00 per Are for Kyari land, Rs.80.00 per Are in respect of Jarayat lands and Rs.1.00 per Are in respect of waste lands. It was the case of the claimants before the reference court that the special land acquisition officer ought to have awarded compensation as prayed for by them but the special land acquisition officer has not taken into consideration the fertility of the lands, the sale instances of the surrounding lands and has not considered the evidence produced by the claimants and, therefore, it was prayed by the claimants before the reference court that the compensation as prayed for by them should be awarded by allowing the said references. Before the reference Court, one witness Kanji Haridas Patel was examined at Exh. 10 who was the claimant in Land Acquisition Reference No. 18 of 1982. Except the said witness, no other witness has been examined by the claimants before the reference court. The appellants had not produced any documentary evidence before the reference court. The appellant has also not produced any documents in support of his deposition and whatever documents were produced before the Special Land Acquisition Officer are not produced and proved before the Reference Court, and, therefore, considering the evidence on record, the reference court has decided the matter and has awarded additional compensation in favour of the appellants under its award dated 31st December, 1985. On the basis of these facts, it was submitted by Mr. Amin, learned advocate for the appellants that the reference court has committed error in not considering the amendment made in the Land Acquisition Act, 1894 dated 2 4/09/1984 made effective from 30th April, 1982. He has also submitted that as per the said amendment, all the cases pending before any Court should be given the benefit of the amended Act and as per the amended Act, the appellants are entitled to have the solatium at the rate of 30 per cent and interest at the rate of 9 per cent per annum for the first year and at the rate of 15 % per annum from the date of taking over possession of the lands of the appellants. It was further submitted by him that as per section 23 [1A] of the Act, the appellants are entitled to have 12 per cent increase because in the instant case, section 4 notification was issued on 25/04/1974 whereas the award in question was given by the Special Land Acquisition Officer on 8/03/1982 and, therefore, the appellants are entitled to have 12 per cent increase on the market rate for the period from 24/04/1974 to 8/03/1982, per year. He also submitted that the reference court has awarded additional compensation contrary to the evidence which was led and produced before the special land acquisition officer. He has also submitted that the certificate of the Gram Sevak dated 7/03/1975 as well as the Additional Divisional Agriculture Officer about crop yields of the lands in question were produced but the same were not considered by the reference court. He has also submitted that the appellants have received award for raising the highest yields of crop from the land in question and for that, certificate issued by the agriculture department was very much there at Exh. 16 but the same was not considered by the reference court. He has further submitted that the reference court has also ignored two wells and the oil engine in survey no.183/1 and has not awarded any additional compensation to the claimants in that regard. According to his submission, the oral evidence of the appellant has also been ignored by the reference court. He has also submitted that the appellant has produced material evidence and the documents before the special land acquisition officer but the said record has been totally ignored by the reference court and in doing so, the reference court has committed an error. In short, it is his submission that the reference court has ignored the provisions of the amended Act as well as the oral and documentary evidence produced by the appellant before the special land acquisition officer and also before the reference court and, therefore, the award made by the reference court is required to be modified by enhancing the compensation awarded to the claimants.

(2.) On the other hand, learned AGP Mr. M.K.Patel appearing for the respondent has submitted that against the award made by the special land acquisition officer dated 8/03/1982, references were made by the special land acquisition officer before the reference court at the instance of the original claimant. He has submitted that the reference court not being the appellate court, was not in error in not considering the record which was produced by the appellant before the special land acquisition officer. According to him, unless and until the evidence produced before the special land acquisition officer and relied upon by the said officer is produced and proved before the reference court, the reference court cannot rely upon such evidence and therefore, reference court has not committed any error in that regard since the evidence produced before the special land acquisition officer was not produced and proved by the appellant before the reference court. He has further submitted in this case, the appellant has not produced and proved the evidence which was produced before the special land acquisition officer and, therefore, in absence of documents, the reference court was right in considering the admission on the part of the special land acquisition officer and was also right in granting additional compensation to the appellant claimant and in doing so, no error has been committed by the reference court and, therefore, according to him, these appeals are required to be dismissed.

(3.) We have considered the submissions made by the learned advocates for the parties. We have perused the impugned award made by the reference court. We have also perused the original record wherein the special land acquisition officer made the award dated 8/03/1982 and pursuant to the reference made by the special land acquisition officer at the instance of the claimants, reference court delivered the award in the reference. The contention raised by Mr. Amin that sufficient evidence has been produced and proved by the appellants before the special land acquisition officer but the same has not been taken into consideration by the reference court has been considered by this court in light of the observations made by the apex court in case of Chimanlal Hargovinddas versus Special Land Acquisition Officer, Poona and another reported in AIR 1988 SC 1652. The apex court has observed as under on page 1653 of the report: