Nadirsha Shapurji
Patel (D) by LRS. & Ors. Vs Deputy Collector & La & ANR.
WITH CIVIL APPEAL
NOS. 1061-1065 OF 2004
WITH CIVIL APPEAL NO.
1080 OF 2004
JUDGMENT
Dr. MUKUNDAKAM
SHARMA, J.
1.
By
this common judgment and order we propose to dispose of all the aforesaid
appeals which are connected and interrelated, as would be indicated from the
facts delineated hereinafter.
2.
By
issuing a notification under Section 4 of the Land Acquisition Act, 1894
[hereinafter referred to as "the Act"] on 21.02.1986, land connected
with the present appeals, situated at Village Mora, Taluka Choriyasi, District
Surat in the State of Gujarat, was proposed to be acquired for a public
purpose, viz., setting up a Gas Based Thermal Power Project belonging to
National Thermal Power Corporation [for short `NTPC']. Subsequent to the aforesaid
notification, a declaration under Section 6 of the Act was also issued by the
State Government, by issuing a notification dated 29.04.1986 in respect of the
said land. Possession of the said land was also taken over on 18.06.1986 and an
award was passed by the Land Acquisition Officer, determining market value of
the land and awarding compensation at ` 3.50 per square meter for the acquired
land.
3.
Aggrieved
by the compensation awarded by the Land Acquisition Officer, the appellants-claimants
filed applications under Section 18 of the Act seeking reference to the Court.
Consequent to the said prayer, reference was made to the District Court. The
Reference Court allowed the parties to present their evidence and on conclusion
of the trial, passed a judgment and order dated 25.07.1997 enhancing the market
value of the land and determining the compensation at ` 20 per square meter for
the acquired land. It is also to be noted at this stage that the Reference Court
further awarded interest at the rate of 9 per cent per annum for the first year
of taking over the possession of the land in the year 1986, and at 15 per cent
thereafter. The Reference Court also passed an order expressly recording that
the interest should not be calculated on solatium.
4.
Aggrieved
by the aforesaid judgment and order passed by the Reference Court, the
appellants-claimants filed appeals before the High Court under Section 54 of
the Act seeking enhancement of compensation. Cross-appeals were also filed by
the beneficiary, viz., NTPC. During the pendency of the said appeals in the
High Court, an interim order was also passed in Civil Application by staying payment
of the enhanced amount of compensation. Subsequently, when the appellants- claimants
filed applications, the order of stay was vacated and the land owners were
permitted to withdraw the entire amount deposited in Reference Court [inclusive
of cost and interest] without security in full and final settlement of the
claims.
5.
The
Division Bench of the High Court disposed of the aforesaid appeals by the
impugned common judgment and order dated 15.09.2000 in which it partly allowed
the First Appeal Nos. 5388-5408 of 1997 filed by the appellants-claimants and
determined the market value of the acquired land of Village Mora, Taluka
Choriyasi, District Surat on the relevant date, i.e., 21.02.1986, at the rate
of ` 22 per square meter. The High Court, however, specifically ordered that no
interest under Sections 28 and 34 of the Act on additional amount of
compensation received under Section 23(1-A) & Section 23(2) of the Act would
be paid to the claimants. By the same order, the High Court dismissed the First
Appeal Nos. 742-792 of 1998 filed by the respondents.
6.
The
appellants-claimants being aggrieved by the aforesaid judgment and order passed
by the High Court, filed Special Leave Petitions in this Court in which notices
were originally issued but subsequently, the delay in filing the Special Leave
Petition Nos. 21068-21070 of 2001 was condoned and leave was granted. So far as
the other connected Special Leave Petitions were concerned, in those petitions
also, leave was granted and accordingly all the petitions have been now
registered as appeals.
7.
We
heard learned counsel appearing for the parties when the matters were placed
before us for hearing their respective arguments. We also perused the entire
records of the case with the assistance of the counsel appearing for the
parties to which reference shall be made during the course of our discussion
and findings recorded by us.
8.
The
Chief Project Manager [GTPP], Delhi, made a proposal on 16.12.1985 to the State
Government for acquiring lands situated at the Village Mora, Taluka Choriyasi,
District Surat for the purpose of Gas Base Thermal Power Project for NTPC. The
said proposal was scrutinized by the State Government and upon being satisfied
by the same, a preliminary notification to acquire lands of the
appellants-claimants was issued under Section 4(1) of the Act which was
published in the Government Gazette on 21.02.1986. The Deputy Collector,
Choriyasi was appointed as Land Acquisition Officer for the aforesaid
acquisition proceeding, who after following usual procedure under Section 5 of
the Act, forwarded his report to the State Government as contemplated by
Section 5A(2) of the Act. Consequent thereto, the State Government issued a
declaration under Section 6 of the Act which was published in the Government
Gazette on 29.04.1986. The appellants- claimants thereafter appeared before the
Land Acquisition Officer and claimed compensation at the rate of ` 1,50,000 per
acre. The Land Acquisition Officer, after considering the records, passed his
award dated 18.01.1988 by dividing the acquired lands into three categories and
determining market value of the land in the following manner: 7 Acquired lands
situated at North of Surat-Hazira State Highway at the rate of ` 35,000 per
hectare, i.e., ` 3.50 per square meter. 7 Acquired lands situated towards South
of Surat-Hazira State Highway at the rate of ` 32,000 per hectare, i.e., `3.20
per square meter. 7 Acquired lands situated towards interior South of Surat-Hazira
State Highway at the rate of ` 30,000 per hectare, i.e., ` 3 per square meter. The
Land Acquisition Officer by his award determined the market value of Kharab
land, admeasuring 30 acre at the rate of 36 square meter at the rate ` 1 per
square meter.
9.
As
stated hereinbefore, reference cases were filed which were registered as Land
References Case Nos. 118-168 of 1988. All the said land reference cases were
consolidated and the parties led common evidences in the Reference Case No. 140
of 1988. Reference Court enhanced the market value of the land and determined
the same at the rate of `20 per square meter. The Reference Court also ordered
that additional compensation shall be paid to the complainants with solatium at
the rate of 30 per cent per annum on the aforesaid enhanced compensation and
also held that the claimants would be entitled to get 12 per cent additional
market value from the date of the notification under Section 4 of the Act,
i.e., from 21.02.1986 till 16.06.1986. The claimants were also held to be
entitled to get the interest at the rate of 9 per cent per annum for the first
year of taking over of possession of the land in the year 1986 and at the rate
of 15 per cent per annum thereafter, excluding the amount of solatiumI till the
realization of the amount by the claimants. In the said judgment, specific
orders were made by the Reference Court that no amount of interest shall be calculated
on the amount of solatium. Since some of the lands were admittedly of new
tenure lands, 5 per cent of the amount of award was deducted for the new tenure
lands.
10.
Appeals
were filed by both the appellants and the respondents before the High Court. So
far as the appeals of the appellants-claimants are concerned, their appeals were
partly allowed by enhancing the market value of the land and determining the
same at the rate of ` 22 per square meter. But the High Court did not grant
interest under Section 28 and 34 on additional amount of compensation under
Sections 23(1-A) and 23(2) of the Act and held further that no interest shall
also be paid on solatium whereas the appeals filed by the NTPC were dismissed
in entirety.
11.
The
present appeals are registered as against the aforesaid judgment and order of
the High Court. Learned counsel appearing on behalf of the appellants-claimants
primarily raised two issues during the course of hearing. The first submission
of the counsel appearing for the parties concerned the market value of the land
as determined by the courts below. According to them, in terms of the
documentary as also oral evidence on record, the market value of the land
should have been determined at least at the rate of ` 33 per square meter. The
next contention of the counsel appearing for the appellants- claimants was
regarding entitlement of appellants to payment of interest on additional amount
of compensation and solatium.
12.
12.
Let us first deal with the first issue which relates to determination of the
fair and reasonable market value of the land. In order to appreciate the rival
contentions of the parties, as to whether the market value of the land should
be determined at ` 33 per square meter as submitted by the counsel appearing
for the appellants- claimants or whether it should be determined at ` 22 per square
meter as held by the High Court, we have perused various documentary evidence
placed on record by the parties. The appellants produced various sale instances
which were considered by the High Court as Exhibits 102-I relating to Village
Kawas. The said sale instances were relied upon by the appellants and they were
executed between the years 1985-1988. The sale instances evidenced in Exhibits
102, 103 and 104 were found to have been executed prior to the date of issuance
of the notification under Section 4 of the Act, but at the same time it must
not be ignored that when the aforesaid three sale instances took place,
notification for the establishment of the aforesaid Gas Project was already in existence
(which was issued in the year 1984). Therefore, the aforesaid sale instances
also cannot be said to be a very safe guide for determining the market value of
the land. Besides, the said sale instances also relate to a very small tract of
land admeasuring only 58 square meter to 60 square meter. The said plots also
concern non- agricultural land. From the evidence adduced, it is also established
that the vendor in the aforesaid sale instances had first converted agricultural
lands into non- agricultural lands and divided them into small plots with a
view to earn profits and sell the said plots to different persons.
Consequently, the aforesaid sale deeds cannot be said to be a safe guide for
the purpose of determination of the market value of the present lands.
Therefore, we are of the opinion that the High Court was justified in keeping the
said sale deeds out of its consideration.
13.
The
appellants have also placed reliance on sale deed Exhibit No. 263 which was in
respect of land admeasuring 750 square feet for a consideration of Rs. 9,999/-.
The evidence adduced indicates that the vendee of the said sale deed was in
dire need of accommodation and, therefore, he purchased the same. That being
the consideration and since the said land is also a small piece of land, the
High Court and the Reference Court rightly did not took the same into
consideration.
14.
14.
Similarly, in so far as the sale deed Exhibit No. 144 is concerned, the same
relates to agricultural land of Survey No. 523 admeasuring 2 acre and 11 guntas
situated at village Ichhapore, which is a different village altogether. The
said sale deed also relates to a plot of land which was adjacent to the
vendees' own agricultural land and the agreement to sale was also not
registered and produced before the Reference Court. Besides, vendor and the vendee
in the said/same case are related to each other and, therefore, the aforesaid
sale deed also could not have been accepted by the High Court as reliable
evidence on the issue of determination of the market value of the land. The
Village Icchapore was also at a distance of two kilometers from the acquired
lands. There is no other evidence in the nature of any sale deed from the same Village
Mora wherein the acquired land was situated. The High Court held that the
aforesaid sale price of Exhibit No. 144 cannot be said to be the market value
for the acquired land for various reasons, viz., it was situated in a different
Village, and it relates to small portion of land (since no prudent purchaser
would have purchased large extent of lands on the basis of sale of small land
in open market). The High Court, however, held that a deduction of minimum
1/3rd from the price fixed for the lands covered in Exhibit No. 144 towards
development charges might be applied to ascertain the market value of the present
acquired lands. The High Court also held that Exhibit No. 144 has been executed
9 months after issuance of the notification under Section 4 of the Act. Having
held thus, the High Court after applying the formula for deduction of 1/3rd
amount from the rate mentioned in Exhibit No. 144, i.e., ` 33 per square meter,
the High Court determined the market value of the acquired land at ` 22 per
square meter.
15.
We
may at this stage also add that the said figure of ` 22 per square meter is the
amount determined as market value for lands of adjacent village Kawas by this
Court in Civil Appeal Nos. 11924-11934 of 1996 with respect of the acquisition
made by issuing notification under Section 4 of the Act on 15.12.1986.
16.
The
quality of acquired land is established from the evidence on record, wherein it
is stated that no agricultural operations were carried out in the said land and
that only grass, which was used as fodder for cattle, was grown in the said
land. It could not be established by the appellants-claimants that there was
any crop of wheat, cotton and jowar on the acquired lands. The only evidence
that has come to light is that some of the claimants were carrying on the business
of milk distribution and they were keeping cattle and were raiIsing grass on
acquired land for providing fodder to the cattle. The witnesses examined on behalf
of the respondents, however, clearly stated that the acquired lands were badly
damaged due to flood waters as the same were situated in low-lying area and
having an uneven level. Reliance was also placed on survey report Exhibit No.
285 on behalf of the respondents which indicates and describes the acquired
lands as badly damaged lands due to flooding of the river Tapti and the entry
of sea water. Paragraph 3.3 of the aforesaid survey report also indicates that
a number of nullhas existing in the area get slightly topped due to tidal
effect and as the acquired land used to be flooded with water from the sea, therefore,
it was also not possible to raise any agricultural crop except for growing
grass in the said land. Another witness, viz., Vimalchandra Jeshmal Kotari,
examined on behalf of the respondent, also deposed that acquired land was
uneven and water had stagnated on the same. He also deposed that when he first
visited the acquired land in July, 1986 he even found it very difficult to walk
on certain portions of the land. He has clearly stated in his evidence that the
acquired land was low level land and water from sea use to enter the land at
the time of tide and, therefore, water had stagnated on acquired lands. His
evidence also establishes the fact that said leveling work was required to be
done in the acquired land and that a total amount of ` 76,86,280 was spent only
for leveling the land. He also deposed that because of the presence of
sulphates and nitrates in the soil of acquired lands, special precautions were
required to be taken while erecting the foundation of the project. It is well- established
that the expenditure was incurred solely by the respondents in leveling the
lands. The respondents also too took special care in erecting the foundation of
thermal power station which was established there due to availability of water,
electricity and HPJ Gas pipeline.
17.
Having
considered the aforesaid evidence on record, we are of the opinion that the
market value of the acquired land as determined by the High Court is just and reasonable
and the same could be accepted as reasonable compensation for the land which
was acquired by the State Government for establishment of the aforesaid thermal
project. Therefore, the contentions of the counsel appearing for the appellants
for increase in the market value of the land are found to be without any basis
and the same are rejected.
18.
On
the second issue which was raised regarding the payment of interest on solatium
and additional amount of compensation, reliance was placed by the counsel appearing
for the parties in the case of Sunder v. Union of India reported at (2001) 7
SCC 211; Gurpreet Singh v. Union of India reported at (2006) 8 SCC 457 and Land
Acquisition Officer & Asstt. Commissioner & Anr v. Shivappa Mallappa
Jigalur & Ors reported at JT 2010 (7) SC 475.
19.
In
the case of Sunder (supra), this Court in paragraph 23 has stated thus:- "23....We
make it clear that the compensation awarded would include not only the total
sum arrived at as per sub- section (1) of Section 23 but the remaining sub-sections
thereof as well. It is thus clear from Section 34 that the expression "awarded
amount" would mean the amount of compensation worked out in accordance with
the provisions contained in Section 23, including all the sub-sections
thereof." In paragraph 24, the Court further held as follows:-
"The proviso to
Section 34 of the Act makes the position further clear. The proviso says that
"if such compensation" is not paid within one year from the date of
taking possession of the land, interest shall stand escalated to 15% per annum
from the date of expiry of the said period of one year "on the amount of
compensation or part thereof which has not been paid or deposited before the
date of such expiry". It is inconceivable that the solatium amount would
attract only the escalated rate of interest from the expiry of one year and
that there would be no interest on solatium during the preceding period. What
the legislature intended was to make the aggregate amount under Section 23 of
the Act to reach the hands of the person as and when the award is passed, at
any rate as soon as he is deprived of the possession of his land. Any delay in
making payment of the said sum should enable the party to have interest on the
said sum until he receives the payment. Splitting up the compensation into
different components for the purpose of payment of interest under Section 34
was not in the contemplation of the legislature when that section was framed or
enacted."
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
The
aforesaid decision came for consideration before this Court in the case of
Gurpreet Singh case [supra] and in paragraph 54 of the said judgment the
Constitutional Bench of this Court held thus: -" One other question also
was sought to be raised and answered by this Bench though not referred to it.
Considering that the question arises in various cases pending in courts all
over the country, we permitted the counsel to address us on that question. That
question is whether in the light of the decision in Sunder, the awardee/decree-
holder would be entitled to claim interest on solatium in execution though it
is not specifically granted by the decree. It is well settled that an execution
court cannot go behind the decree. If, therefore, the claim for interest on
solatium had been made and the same has been negatived either expressly or by
necessary implication by the judgment or decree of the Reference Court or of
the appellate court, the execution court will have necessarily to reject the
claim for interest on solatium based on Sunder on the ground that the execution
court cannot go behind the decree. But if the award of the Reference Court or
that of the appellate court does not specifically refer to the question of
interest on solatium or in cases where claim had not been made and rejected
either expressly or impliedly by the Reference Court or the appellate court,
and merely interest on compensation is awarded, then it would be open to the
execution court to apply the ratio of Sunder and say that the compensation awarded
includes solatium and in such an event interest on the amount could be directed
to be deposited in execution. Otherwise, not. We also clarify that such interest
on solatium can be claimed only in pending executions and not in closed executions
and the execution court will be entitled to permit its recovery from the date of
the judgment in Sunder (19-9- 2001) and not for any prior period. We also
clarify that this will not entail any reappropriation or fresh appropriation by
the decree-holder. This we have indicated by way of clarification also in
exercise of our power under Articles 141 and 142 of the Constitution of India
with a view to avoid multiplicity of litigation on this question."
21.
Subsequent
to the aforesaid Constitutional Bench decision of this Court, a Division Bench
of this Court in Land Acquisition Officer & Asstt. Commissioner & Anr v.
Shivappa Mallappa Jigalur & Ors [supra] after referring to the aforesaid
decisions held and observed as follows in paragraph 13:-
"The decision
in Gurpreet Singh, thus, actually enlarged the scope of execution proceeding,
in a certain way, on the basis of the decision in Sunder. Coming now to the passage
specially relied upon by Mr. Hegde, we do not have the slightest doubt that the
reference to "closed executions" does not mean cases in which the
main proceeding arising from the landowner's claim for enhanced compensation
remains pending before the civil court or at the appellate stage. It may
sometimes happen, as illustrated by this case that the award of the Collector
or the decree of the civil court is put to execution and payments are made in terms
of the award or the decree of the civil court and in that sense the award or
the decree is satisfied. Nevertheless, an appeal against the award or the
decree of the civil court may still remain pending either before the High Court
or even before this Court. In appeal, the superior court may enhance the compensation
which would lead to enhancement of solatium and consequently the interest on
the additional amounts of compensation and solatium. In such a situation, the
landowner/claimant would be bound to go back to the execution court for realisation
of the additional amounts in terms of the modified decree. In such cases, the
execution proceedings cannot be deemed to be closed and neither was it the intent
of the observations in paragraph 54 of the decision in Gurpreet Singh.
22.
However,
in the present appeals, the impugned judgment and order against which these
appeals are filed would reveal that the prayer for payment of interest on solatium
was specifically made and the same was rejected by the High Court. But in so
far as the market value of the land is concerned, the High Court passed an order
of enhancement and the said enhanced amount came to be deposited by the
Respondents after passing of the order in the case of Sunder [supra]. Being
aggrieved by the said judgment and order of fixation of market value of the
land as also against the rejection of the prayer for payment of interest on
solatium, these appeals have been filed. Three of such appeals were barred by limitation
but by express orders passed by this Court, the delay in filing the said three
appeals was condoned. We have not been shown any conclusive proof to come to the
decision that the execution cases were closed. On the other hand, the enhanced
amount was deposited by the Respondent after the date of decision in Sunder and
since the present appeals were entertained by this court, and in the facts and
circumstances of the present appeals, we would hold that the appellants herein
be provided with the benefit of the decision laid down by the Constitutional
Bench as stated, particularly in paragraph 54 of Gurpreet Singh case [supra].
We have passed the order for payment of interest on solatium also, taking into
consideration the view of the High Court for rejection of the claim for
interest on solatium holding that no such interest is payable in terms of the
decision of the Supreme Court in the case of State of Maharashtra vs. Maharau
Srawan Hatkar, reported in Judgment Today 1995 (2) S.C. 583. Subsequent to the
aforesaid decision this Court has rendered the verdict in Sunder (supra) and
the Constitution Bench decision in Gurpreet Singh (supra), carving out an
exception by making the claimant entitled to interest on solatium on certain
conditions.
23.
Considering
the factors in to, and in the peculiar facts and circumstances of the present appeals,
we direct for the payment of interest on solatium to the appellants herein in terms
of the decision of the Constitution Bench in GurpreetI Singh [supra] i.e., from
the date of the Judgment in Sunder[supra] from September 19, 2001 to the date
of deposit of the entire amount in the execution court.
24.
Accordingly,
appeals stand disposed of in terms of the discussion and observations made
hereinabove, but we leave the parties to bear their own costs.
............................................J
[Dr. Mukundakam Sharma ]
............................................J
[ Anil R. Dave ]
New
Delhi,
November
19, 2010.
Back