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Babubhai Khusaldas Gandhi and ors. Vs. the Special Land Acquisition Officer, Corporation, Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal Nos. 1028 and 1033 of 1960
Judge
Reported inAIR1967Guj264; (1968)0GLR85
ActsLand Acquisition Act, 1894 - Sections 8, 11, 12, 18, 19, 20 and 21
AppellantBabubhai Khusaldas Gandhi and ors.
RespondentThe Special Land Acquisition Officer, Corporation, Ahmedabad
Appellant Advocate S.K. Zaveri, Adv. in F.A. No. 1033 of 1960 for; A.V. Mody and;
Respondent Advocate B.R. Sompura, Asst. Govt. Pleader in F.A. Nos. 1028 and 1033 of 1960
Excerpt:
property - jurisdiction - sections 8, 11, 12, 18, 19 and 21 of land acquisition act, 1894 - land acquired for extension of hospital - plot x measured 7278 sq. yards but special land acquisition officer stated in its award measuring it as 7580 sq. yards - lower court found that real area was 7278 sq. yards deducted additional amount on 302 sq. yards wrongly awarded by special land acquisition officer - appeal filed - lower court had no jurisdiction to inquire into question of area - under section 12 true area of land would be final and as concluded between special land acquisition officer and person interested - in absence of inherent jurisdiction defect cannot be cured by acquiescence - held, order of lower court set aside and order of special land acquisition officer restored. - - ..........extension of lallubhai gordhandas hospital at maninagar. the notification under section 4 of the land acquisition act, 1894 (hereinafter referred to as the act) was issued in respect of both the cases on 7-12-1955. final plot no. 106 of maninagar town planning scheme of which the lands acquired for sub plots is a fairly large final plot as shown by sketch exh. 36 and is divided into many sub plots. of these the sub plots which are acquired are sub plot no. 43 which was the subject matter of compensation case no. 8/58 (first appeal no. 1033/60) and sub plot nos. 132 and 133 which were the subject matter of compensation case no. 154/60 (first appeal no. 1028/60) . the sub plot no. 43 measures 7278 sq. yds. but has been stated in the award of the special land acquisition officer as.....
Judgment:

Sarela, J.

(1) These two appeals are directed against the judgment and order dated 15th March 1960 of the learned Joint Judge, Ahmedabad. The learned Judge was deciding by that judgment two compensation cases Numbers 8 and 154 of 1958 which were heard by him together. By the above order the learned Judge awarded the claimant in compensation case No. 8 of 1958 an additional amount of Rs. 2741.50 (including solatium) and the claimant in compensation case No. 154/58 an additional amount of Rs. 1780-50 (including solatium). Both the claimants have come in appeal. First Appeal No. 1033/60 is by the claimant in compensation case No. 8/1958 and the first appeal No. 1028/60 is by the claimant in compensation case No. 154/58. Both these appeals have been argued together as the evidence in respect of both the cases was led in the lower Court only in one case namely compensation case No. 8/58 and both these appeals will, therefore, be disposed of by this common judgment.

(2) The lands acquired in both the cases are sub plots of final plot No. 106 of Maninagar Town Planning Scheme No. 4. They were acquired for the extension of Lallubhai Gordhandas Hospital at Maninagar. The notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued in respect of both the cases on 7-12-1955. Final plot No. 106 of Maninagar Town Planning Scheme of which the lands acquired for sub plots is a fairly large final plot as shown by sketch Exh. 36 and is divided into many sub plots. Of these the sub plots which are acquired are sub plot No. 43 which was the subject matter of compensation case No. 8/58 (first appeal No. 1033/60) and sub plot Nos. 132 and 133 which were the subject matter of compensation case No. 154/60 (first appeal No. 1028/60) . The sub plot No. 43 measures 7278 sq. Yds. But has been stated in the award of the Special Land Acquisition Officer as measuring 7580 sq. Yds. On this difference a point of law arises to which we shall refer later. Sub plots Nos.132 and 133 measure 753 and 799 sq. yds. respectively in all 1552 sq. yds. Before the Special Land Acquisition Officer the claimants in both the cases claimed compensation for these lands at the rate of Rs. 10 per sq yd. The Special Land Acquisition Officer awarded Rs. 4/- per sq yd for sub plots Nos. 132 and 133. The claimants sought a Reference in the District Court under Section 18 of the Act in respect of the amount of compensation so awarded. The claim made before the District Court was also at the rate of Rs. 10/- per sq yd for sub plots Nos. 132 and 133 and at the rate of Rs. 8/- for sub plot no. 43. The learned Joint Judge who decided the cases awarded by his judgment and order above mentioned a rate of Rs. 4.50 per sq yd for sub plot No. 43 and Rs. 6.50 per sq. yd for such plots Nos. 132 and 133. There was a corresponding award for the statutory solatium. In respect of sub plot No. 43, the lower Court made a further order in respect of its area. In the award of the Special Land Acquisition Officer the area of this sub plot is mentioned as 7580 sq. yds. The lower Court found that it was in fact 7278 sq yds that is 302 sq yds less. Therefore, out of the additional amount of compensation awarded by the lower Court that Court deducted the amount in respect of 302 sq yds which in its view had been wrongly awarded by the Special Land Acquisition Officer to the claimant of sub plot No. 43. Against these orders of the lower Court the claimants have come to appeal.

(3) At the hearing of these appeals, Mr. S.K. Zaveri, the learned advocate who argued for the appeals on behalf of the claimants, made only two submissions. One submission was that the lower Court committed an error of law and exceeded its jurisdiction in inquiring into the area of sub plot No. 43 under acquisition and determining it be less than the area determined by the Land Acquisition Officer. The other was that the lower Court was in error in not relying on the instances relating to the market value proved before it and in not awarding to the claimants a rate of at least Rs. 7/- in respect of sub plot No. 43 and Rs. 8-50 paise in respect of sub plots Nos. 132 and 133.

(4) To appreciate the first submission some relevant facts needs be stated. The Special Land Acquisition Officer gave his award on 30-10-1957. In Para 3 of that award which is at Exth. 2 he has mentioned the actual area of the lands under acquisition as verified by the District Inspector of Land Reforms, Ahmedabad. In respect of the area of sub plot No. 43 under acquisition the area stated is 7580 sq yds. In the last para of that award which sets out what he declares to be the award he states that the true area of the lands under acquisition is stated thereunder and under it the land of sub plot No. 43 under acquisition is stated to be 7580 sq. Yds. Thereafter the amount of compensation is set out at the rate of Rs. 4/- per sq yd in respect of sub plot No. 43 and the amount awarded is on the basis that the area under acquisition is 7580 sq yds. The claimants sought a Reference. In that Reference they asked for higher compensation. The Collector in submitting his statement given under Section 19 of the Act to the Court has given the extent of the land as 7580 sq yds (Exh. 5). This statement was submitted on 31-12-1957. After the statement was submitted in respect of sub plot No. 43 the claimants filed a statement for claim which is at Exh. 12 and therein they claimed for the lands under acquisition a higher rate of compensation, atleast Rs. 8 per sq yd. There was no statement filed by the Special Land Acquisition Officer. It appears that while this case was pending before the lower Court a sketch was prepared on 16-4-1958 jointly by the representative of the acquiring department and the revenue surveyor. In the statement attached to that sketch which is Ex. 38, the area under acquisition from sub plot No. 43 is stated to be 7278 sq yds. This was the first indication that the Special Land Acquisition Officer was taking a different stand from the award in respect of the true area under acquisition. This sketch with the attached statement was produced in the Court for the first time on 24-11-1959 by a list Exh. 23. The claimants' advocate by an endorsement thereon dated 4-3-1960 stated that there was no objection to the sketch being exhibited. On that very day oral evidence appears to have commenced in the lower Court. The claimant Permanand Maneklal (Exh. 35) who is concerned with the sub plot was examined on that day and in cross-examination he was asked about this measurement and he stated that he did not dispute the fact that on a joint measurement the area of the land was found to be 7278 sq yds. On these facts the lower Court had stated in its judgment (para 3) as under:-

'Although under the Land Acquisition Officer's award compensation for sub plot No. 43 part is awarded on the basis of its area being 7580 sq yds the map and the joint measurement report at Exh. 38 show that the true area of that plot which has been acquired for the project in question, is only 7278sq yds and this position is not challenged by claimant Parmanand in the course of his evidence at Exh.35.'

And then after the learned Judge increased the rate of market value in respect of this sub plot from Rs. 4/- to Rs. 4.50 paise, the total amount of compensation was determined on the basis of its 7278 sq yds and adjustment in respect of the amount payable was made on that basis. Now, Mr. Zaveri states that in view of the admissions of the claimant before the lower Court, it was not possible for him to urge that the acquired area was in fact 7580 sq yds and not 7278 sq yds as stated by the lower Court but he urged that the lower Court had no jurisdiction to inquire into the question of area and to hold that the area was less than that mentioned in the award of the Special Land Acquisition Officer. In doing so, the lower Court according to him, was acting in excess of jurisdiction.

(5) The submission of Mr. Zaveri on this point are these. The District Court when deciding the case on a Reference under Section 18 of the Act was acting as a Court of special jurisdiction. As such Court its powers and duties are those defined by the statute under which it exercises those powers and it has no inherent powers independent of the provisions of that statute. Under the provisions of the Act an award of the Land Acquisition Officer as to area is final unless challenged by the person interested. The Special Land Acquisition Officer or the Government are not persons interested and cannot therefore challenge that part of the award. If so, the scope of the inquiry before the lower Court is limited to what is objected to in the application for a Reference. The question of area of the land under acquisition does not arise for inquiry on the Reference made in this case and therefore the Court cannot go into that question and must proceed on the basis that the area of the land under acquisition was the area set out by the Special Land Acquisition Officer in his award.

(6) In support of these submissions Mr. Zaveri has invited our attention to three authorities but before we consider these authorities it would be convenient to examine these submission in the light of the relevant provisions of the Act. The notification under Section 4 of the Act was issued, we have earlier, stated, on 7-12-1955. The declaration under Section 6 of the Act was made on 19-12-1955 as stated in the award of the Special land Acquisition Officer and in the statement sent to the Court by the Collector under Section 19. After the declaration the Collector was directed under Section 7 to take order for the acquisition of the land, In this case, it appears that the Special Land Acquisition Officer was appointed the Collector under Section 3 Clause (c) of the Act. Section 8 of the Act provides that the Collector shall there upon cause the land to be marked out. He shall also cause it to be measured, and if no plan has been made thereof, a plan to be made of the same. Therefore, this section imposes on the Collector, here the Special Land Acquisition Officer, the duty to cause the land to be marked out and measured. It must be assumed that this was done. Section 9 provides for issue of a public notice so that the claims to compensation by interested in the land to be acquired may be made to the Collector. Sub-section (2) of that section sets out what matters the claimants are entitled to place before the Collector , and one of the matters is 'there objections (if any) to the measurements made under Section 8'. We do not have before us any material as to what was the measurement was made under Section 9 by the claimants. But we have here the fact that in the award that was made under Section. 11 the true area of the land under acquisition, so far as concerns sub plot. 43, is stated to the 7580 sq.yds. Section 11 requires the Collector to hold an inquiry into the objections, if any, which any person interested has stated pursuant to the notice given under Section 9 to the measurements made under Section 8 and to the value of the land at the date of the publication of the notification under Section 4 and into the respective interest of the persons claiming compensation. Section 11 further requires him to make an award under his hand of

'(i) the true area of the land:

(ii) the compensation which in his opinion should be allowed for the land and

(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether, nor not they have respectively appeared before him'.

Therefore the Collector is required under Section 11 to make an award of the true area of the land and in the present case his award in respect of the true area of the land was that it was 7580 sq.yds. Now section 12 provides, so far as material, that such award shall except as hereinafter provided be final and conclusive evidence as between the Collector and the persons interested of the true area and value of the land and the apportionment of the compensation among the persons interested. Therefore, so far as the true area of the land with which we are concerned, the award is final between the Collector and the persons interested except as hereinafter provided. That provision in Section 18, . That section entitles any person interested who has not accepted the award to require by a written application to the Collector that the matter be referred to the Court by him for the determination of the Court whether his objection be as to the measurement of the land, the amount of compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested. The section clearly specifies four different kinds of objections and those objections can be taken by 'any person interested who has not accepted the award'. It is obvious that the Collector cannot fall within the expression 'any person interested who has not accepted the award'. Sections 8,9,11 and 12, to which reference has been made, indicate that the person interested is other than the Collector and that is also clear from the definition of the expression 'persons interested' in clause (b) of Section 3. Therefore, the Collector cannot make a reference to the District Court about the true area of the land under acquisition. The claimants as persons interested could make the reference. In this case the reference was made as to the amount, of compensation. Now when the claimants ask for a Reference, the Collector is required by section 19 to send to the Court his statement setting out the information on the various points covered by Clauses (a) (b) (c) and (d) of sub-section (1) of Section 19, Clause (a) requires the information to be given inter alia of the extent of the land. Here the extent was stated by the Collector as 7580 sq.yds. The only other sections which require to be noticed are Sections 20 and 21. Under Section 20 of the Court has to cause a notice specifying the day on which the Court will proceed to determine the objection to the served on the applicant, on all person interested in the objection and if the objection is in regard to the area of the land or to the amount of compensation on the Collector, and Section 21 provides that the scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection. Section 18 to 21 read together, therefore, go to show that the scope of the inquiry before the Court in a Reference made under Section 18 and 19 is to consider the objections made by the persons interested under Section 18 and no more. The scope of that inquiry cannot be enlarged by others putting forward contentions not relevant to a reference under Section 18 on any of the points covered by it or those who cannot file a reference under Section 18 such as the Collector cannot in view of Sections 20 and 21 call for an inquiry that the court should go into the matter outside the objections raised in the Reference. Even a person who had applied for a Reference cannot go beyond the objections raised by him in his application for the Reference. This being the position, on a plain reading of the relevant provisions of the Act, the lower court was not competent to inquire into the objections relating to the true area of the land or to after the award as to the area. As to the true area of the land the award would, in view of Section 12, be final and conclusive evidence as between the Collector and the person interested.

(7) Turning now to the authorities, the first case to which our attention, has been invited by Mr. Zaveri is British India steam Navigation Co. V Secretary of State for India, (1911) ILR 38, Cal 230. In that case there was an acquisition for the commissioners of Port of Calcutta, the Land Acquisition Collector awarded certain sums to the claimants. The claimants asked for Reference on the ground that the award of the Collector was very much less than the proper amount. When the matter came up before the Special Land Acquisition Judge it was urged on behalf of the secretary of State that the matter be remitted to the Collector with a direction that he should proceed according to law or that the offer made by the Collector be recast, modified or reduced. The case of the Secretary of State was that the Land Acquisition Collector had unreasonably awarded amounts far in excess of what should have been awarded. The question for consideration was whether the Land Acquisition Judge had jurisdiction at the instance of the Secretary of State to cancel or modify the award of the Collector as to compensation or to remit the proceedings back to the Collector for decision. Their Lordships said:

'In our opinion, there is no room for controversy that the Court of the Land Acquisition Judge is a Court of Special Jurisdiction, the powers and duties of which are defined by the statute, and that there is no foundation for the contention to forward on behalf of the Secretary of State that a Court of this description can be legitimately invited to exercise inherent powers so as to assume jurisdiction over matters not intended by the legislation to be comprehended within the scope of the enquiry before it'.

'The scope of the reference made at the instance of a claimant under section 18 of the Land Acquisition Act is manifestly of a strictly limited character. If the contention of the learned Counsel for the Secretary of State were well-founded, we would have to hold in substance that a reference under Section 18 may be made at the instance not merely of the claimant but also, of the Secretary of State. It follows indisputably, however from an examination of the earlier sections of the Land Acquisition act and especially of sections 9,10, and 11 that the expression 'any person interested' in section 18 does not include the Secretary of State'.

'Section 18 and other sections which follow it make it reasonably plain that the question of the legality of the acquisition or the improperly of the award of the Collector were not intended by the Legislature to form the subject of inquiry by the Land Acquisition Judge at the instance of the Secretary of State. The reference is obtained by the claimant, the objections he can urge against the award of the Collector are specified in sub-section (i) of section 18, Under section 20, the scope of the inquiry is restricted to a consideration of the interests of the persons affected by the objection'.

Therefore, their Lordships held that the questions which was sought to be raised before the learned Land Acquisition Judge at the instance of the Secretary of State was manifestly a question which as a Court of Special Jurisdiction he was not competent to try. This authority therefore lays down that the Court of the land Acquisition Judge is a Court of Special Jurisdiction, its powers and duties are those defined by the statue, here the Land Acquisition Act, it has no inherent powers de hors the provisions of that statute, that the question of modification in the award in favour of the Collector cannot be raised by the Collector in a Reference made under section 18 and on that reference the scope of the inquiry is limited to the objections raised and cannot be enlarged by those who have not filed their objections or cannot file any. The next case to which our attention has been invited is the decision of the Privy Council in Pramatha Nath v Secretary. Of State . In that case the claimant being dissatisfied with the amount awarded asked for a Reference to the Land Acquisition Judge. In the application for the reference his objection was as to the amount of compensation in respect of the Land under acquisition. He raised no objection as to the area of the land. The Reference has made and after it had been pending with the Land Acquisition Judge for a considerable time the claimant raised an objection before the learned Judge as regards the measurement, contending that in fact the area was larger than stated in the award. It was held that the objection could not be entertained. Their Lordships said that:-

'The jurisdiction of the courts under this Act is a special one and is strictly limited by the terms of these sections. It only arises when a specific objection has been taken to the Collector's award and it is confined to the consideration of that objection. Once therefore it is ascertained that the only objection taken is to the amount of compensation, that alone is the 'matter' referred, and the Court has no power to determine or consider anything beyond it'.

Therefore, even the claimant cannot go beyond the objection raised under section 18 and cannot call for an enquiry into it. In the words of the Privy Council the Court has no power to determine or consider anything beyond the objection raised in the application under section 18. The only other case to which our attention has been invited is the decision of the Supreme Court in Kanakarathamma v State of Andhra Pradesh : [1964]6SCR294 . That was a case a reference was made by the Collector to the Court under Section 30 of the Act in respect of apportionment of compensation between different persons claiming to be interested and entitled thereto. During the hearing of that Reference the claimants appear to have put forward a case of inadequacy of the compensation and the District Court went into that question without any objection being raised by the Government Pleader. In appeal to the High Court the State contended that the District Court had no jurisdiction to consider the quantum of compensation in the absence of a Reference on the point. It was contended on behalf of the claimants before the High Court that by reason of the failure of the Sate to raise a plea before the lower Court as to the absence of a reference the State must be deemed to have waived the point. The High Court accepted this argument upon the view that this was not the case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived. In appeal to the Supreme Court their Lordships after referring to the provisions of sections 18 and 19 of the Act observed as under:

'Thus the matter goes to the Court only upon a reference made by the Collector . It is only after such a reference is made that the Curt is empowered to determine the objections made by a claimant to the award. Section 21 restricts the scope of the proceedings before the Court to consideration of the contention of the persons affected by the objection . These provisions thus leave no doubt that the jurisdiction of the Court arises solely on the basis of a reference made to it. No doubt, the Land Acquisition Officer has made a Reference under Section 30 of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the various claimants. Such a reference would certainly not invest the Court with the jurisdiction to consider a matter not directly connected with it. It is really not a mere technicality for as pointed out by the Privy Court in Nusserwanjee Pestonjee v Meer, Mynoodeen Khan Wullud Meer Sudroodeem Khan Bahadoor, (1854-57) 6 Moo ind Appellant 134 at P. 155 (PC), wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein, it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction and if they are not complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does no arise. This was, therefore, a case of lack of inherent jurisdiction and the failure of the State to object to the proceedings before the Court on the ground of an absence of reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defects cannot be waived nor can be cured by acquiescence'.

It is therefore clear from the provisions of the Act earlier discussed and the authorities just referred to that the court had in this case no jurisdiction to determine the question or true area of the land under acquisition and to decide that the area was not 7580 square yards as stated in the award of the Special Land Acquisition Officer but was 7278 square yards. Mr. Sompura, the learned Assistant Government Pleader argued firstly that the lower Court had really determined the total amount of compensation, which it was competent to do on the reference, and that the determination of the area was incidental to the question of the total amount of compensation and secondly that in this case the area as found by the lower Court was accepted by the claimant in his deposition to be correct and therefore, the Court was proceeding on agreement between the parties as to the true area f the land and this, it had jurisdiction to do. It is not possible to accept either of these submissions. The question of area is a question separately set out in section 18. The fact that what the lower court ultimately did was to adjust the total amount of compensation does not alter the nature of the question that it tried. The nature of the question that it tried is clear from the observations of the learned Joint Judge in para 3 of his judgment which have been earlier quoted in this judgment and that question was as to the true area of the land. It is the trail of this question which affected the total amount of compensation. As for the submission that the area was accepted by the claimant in his deposition it is enough to refer to the observations of the Supreme court in the last mentioned case that when there is absence of inherent, jurisdiction the defect cannot be cured by acquiescence. For these reasons, that part of the lower Court's order which alter the area in respect f sub Plot No. 43 will have to be set aside and in respect of the area the award of the Special land Acquisition Officer will have to be restored.

(8) Order accordingly.


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