STATE OF BOMBAY Vs. CHATRABHUJ NENSHI

JUDGEMENT

(1.) This appeal is directed against an order made by the District Judge Kutch in Land Acquisition Reference No. 1 of 1958 awarding a total compensation of Rs. 1 20 94 to the respondent for acquisition of a piece of land bearing Survey No. 910 situate on the BhachauRahapar Road in Kutch District. The land belonged to the respondent which is a Limited Company carrying on business inter alia of ginning cotton and it was taken possession of by the Government of Kutch on 19 November 1949 under an arrangement that some other land suitable for the requirements of the respondent would be given by the Government of Kutch to the respondent in exchange for the land so taken over. At this time the Land Acquisition Act 1894 was in force in Kutch but no notification under sec. 4(1) was issued by the Government of Kutch in respect of the land and no proceedings were adopted under the Act for acquisition of the land. The possession of the land was taken by the Government of Kutch for construction of the State Guest House and the Court house for the Subordinate Judge at Bhachau and these buildings were constructed on the land after possession of the land was taken though no steps were taken to vest the title to the land in the Government of Kutch either by a conveyance from the respondent or by acquisition. It appears that the Government of Kutch was not in a position to give to the respondent in exchange equivalent land acceptable to the respondent and the arrangement upon which the land was originally taken order by the Government of Kutch therefore fell through but by this time the Government of Kutch had already constructed buildings on the land and the Government of Kutch therefore issued a notification under sec. 6 of the Act declaring that the land was needed for a public purpose. The notification directed the Deputy Collector in charge of the Eastern Sub-division under sec. 7 to take order for acquisition of the land. The Deputy Collector accordingly issued the necessary notices under sec. 9 and after holding the prescribed inquiry made an award dated 22nd April 1957 under sec. 11 determining the true area of the land as 6 acres and 35 1/2 gunthas and awarding as and by way of compensation Rs. 585-44 nP for the land valuing it as agricultural land and Rs. 3 828 for the well and pipeline in the land and Rs. 662/as 15 per cent solatium under sec. 23(2) making in all an aggregate sum of Rs. 5 75 nP. The respondent was dissatisfied with this award and he therefore applied to the Deputy Collector to make a reference and the Deputy Collector accordingly made a reference to the District Court under sec. 18 of the Act. The respondent raised a two-fold objection against the award in the Reference. The first objection was as regards the measurement of the band. The respondents contention was that the true area of the land was 8 acres and 28 gunthas and not 6 acres and 35 1/2 gunthas as sound by the Deputy Collector. This contention was however given up at the hearing of the Reference and the true area of land was accepted as 6 acres and 35 1/2 gunthas. The other objection was to the amount of compensation both in respect of the land as also in respect of the well and pipeline. But so far as the well and pipeline were concerned no evidence was led on behalf of the respondent to show that the valuation of Rs. 3 828 made by the Overseer of the Public Works Department was erroneous and the learned District Judge therefore negatived the objection in so far as it related to the amount of compensation in respect of the well and pipeline. The objection as to the amount of compensation in respect of the land was. however found by the learned District Judge to be well-founded. The respondent had claimed before the Deputy Collector compensation at the rate of Rs. 6/per square yard on the basis that the land was a building-site but the Deputy Collector had proceeded to award compensation on the basis that the land was agricultural land. The same claim of Rs. 6/per square yard was repeated before the learned District Judge and it was contended that the rate of Rs. 6 per square yard represented the market value of the land on the date of the notification under sec. 6 on the basis of the land being a building-site and since there was no notification under sec. 4(1) the respondent was entitled to claim compensation on the basis of the market value of the land on the date of the notification under sec. 6. It was not disputed on behalf of the State that the respondent was entitled to compensation on the basis of the market value of the land at the date of the notification under sec. 6 and the learned District Judge after considering the evidence on record came to the conclusion that the market value of the land at the date of the notification under sec. 6 should be taken to be Rs. 3/per square yard and on that basis the learned District Judge awarded compensation of Rs. 1 0 0 for the land. Adding to this the amount of compensation in respect of the well and pipeline and 15 per cent solatium the learned District Judge came to the conclusion that the respondent was entitled to claim Rs. 1 20 94 as compensation and he accordingly made an order awarding the said amount as compensation together with interest thereon at the rate of 6 per cent per annum from 1st February 1955 being the date of the notification under sec. 6 and proportionate costs. The State thereupon preferred the present appeal in this Court.

(2.) The learned Advocate General appearing on behalf of the State advanced broadly two contentions in support of the appeal. The first was a contention of a preliminary nature and it raised a question of same importance. The contention was that under the machinery provided by the Land Acquisition Act for determination of compensation for acquisition of land compensation could be determined only on the basis of the market value of the land at the date of the notification under sec. 4(1) and the learned District Judge was therefore in error in awarding compensation on the basis of the market value of the land at the date of the notification under sec. 6. The learned District Judge it was argued should have held that since in the present case there was no notification under sec. 4(1) it was not possible to determine the amount of compensation payable for the land under the machinery of the Land Acquisition Act and the Reference should therefore have been rejected by the learned District Judge. The second contention was directed to the merits of the case and it was urged that even if the learned District Judge was in the absence of notification under sec. 4(1) entitled to award compensation on the basis of the market value of the land at the date of the notification under sec. 6 the compensation awarded by the learned District Judge was not at all justified by the evidence on record and as a matter of fact there was no satisfactory evidence which would entitle the respondent to claim higher compensation than that awarded by the Deputy Collector. This second contention would become necessary to be considered only if the first contention were decided against the State but in our opinion the first contention is well-founded and it is therefore not necessary to go into the evidence for the purpose of deciding the validity of the second contention. Let us examine the first contention.

(3.) In order to appreciate this contention it is necessary to examine briefly the scheme as appearing from the various provisions of the Act. The preamble of the Act shows that it is an Act to amend the law for the acquisition of land needed for public purposes and for Companies and for determining the amount of compensation to be made on account of such acquisition. Part I of the Act contains sections of a preliminary nature dealing with subjects such as extent and commencement and definitions. Then comes Part II which is headed Acquisition and which sets out the procedure to be followed in effecting acquisition of land. The first step which is required to be taken is the issue of a notification under sub-sec. (1) of sec. 4. That sub-section provides that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the Official Gazette. On the issue of the notification under sec. 4(1) steps are taken to enter upon and survey the land and take all other actions necessary to decide whether the land is fit for the purpose for which it is needed and in that connection sec. 5A provides that any person interested in the land may within thirty days after the issue of the notification object to the acquisition of the land. Every objection under sec. 5A is required to be made to the Collector in writing and that section enacts that the Collector shall after hearing all objections and after making such further inquiry if any as he thinks necessary submit the case for the decision of the appropriate Government together with a report containing his recommendations on the objections and the decision of the Government on the objections shall be final. Sec. 6 then provides for the issue of a notification declaring that the land is needed for a public purpose or for a Company. The notification under sec. 6 is made conclusive evidence that the land is needed for a public purpose or for a Company as the case may be and sec. 7 declares that on such notification being issued the appropriate Government shall direct the Collector to take order for acquisition of the land. Sec. 8 requires the Collector to cause the land to be marked out measured and planned and sec. 9 says that the Collector shall then cause public notices to be given to persons interested in the land stating that the Government intends to take possession of the land and that claims to compensation for all interests in the land may be made to him. Sec. 10 empowers the Collector to require and enforce the making of statements as to names of persons possessing interest in the land and the nature of such interest with the object of enabling the Collector to make a proper award determining compensation to be paid for acquisition of the land and apportioning such compensation amongst persons interested in the land. Sec. 11 is a little important and we would prefer to set it out in full rather than give a mere gist of it in our own words. That section runs as follows:-