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Amirbibi and ors. Vs. Special Land Acquisition Officer, Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 408 of 1975 with cross objections F.A. Nos. 732 and 308 to 311 of 1975
Judge
Reported inAIR1981Guj219; (1981)GLR590
ActsLand Acquisition Act, 1894 - Sections 23 and 28; Land Acquisition (Amendment and Validation) Act, 1967 - Sections 4(3)
AppellantAmirbibi and ors.
RespondentSpecial Land Acquisition Officer, Ahmedabad
Appellant Advocate A.M. Joshi, Adv.
Respondent Advocate J.R. Nanavati, Govt. Pleader,; P.V. Nanavati,; A.H. Meht
Excerpt:
- - uncompensated altogether and we must make our best endeavour to mete out justice to them, although we must be on guard while doing so, as our conclusion must be based on a broad basis and common sense inference. 28 of the principal act as well a, under s. 13 of 1967 is an additional provision for interest and that, is that whereas under section 28 the interest is to be given on the additional amount of compensation awarded by the court over the amount awarded by the collector, and hence it would include the market value as well as solatium......the concerned parcels of lands were situated in the villages of danilimda and vasna. the special land acquisition officer issued notices to the interested persons and after hearing them declared his award, by which he awarded compensation at the rate of rs. 6/- per sq. metre and solatium at the rate of 15 per cent and also awarded interest to the claimants. the claimants, being dissatisfied with the award, requested the special land acquisition officer, ahmedabad, to make a reference to the district court, ahmedabad (rural) at narol. the reference was accordingly made and the learned assistant judge at narol heard the reference cases, bearing nos. 11/73, 91113, 7/73, 8/73 and 10/73. 2. it appears from the record before us that the learned assistant judge disposed of l. a. case no......
Judgment:

Shukla, J.

1. The Government of Gujarat issued a notification under Section 4 of the Land Acquisition Act, dated 10-11961, which was published in the Gujarat Government Gazette dated 2-2-1961 for the purpose of acquiring certain lands for the purpose of laying down a circular road for Ahmedabad Municipal Corporation. The concerned parcels of lands were situated in the villages of Danilimda and Vasna. The Special Land Acquisition Officer issued notices to the interested persons and after hearing them declared his award, by which he awarded compensation at the rate of Rs. 6/- per sq. metre and solatium at the rate of 15 per cent and also awarded interest to the claimants. The claimants, being dissatisfied with the award, requested the Special Land Acquisition Officer, Ahmedabad, to make a reference to the District Court, Ahmedabad (Rural) at Narol. The reference was accordingly made and the learned Assistant Judge at Narol heard the Reference Cases, bearing Nos. 11/73, 91113, 7/73, 8/73 and 10/73.

2. It appears from the record before us that the learned Assistant Judge disposed of L. A. Case No. 11/73 by a separate judgment dated 23rd day of Oct., 1974 and disposed of the other Land Acquisition Cases, namely, 9/73, 7/73, 8/73 and 10/73 by a separate judgment dated 19th day of Oct., 1974. Being dissatisfied with the judgment dated 23rd Oct., 1974, the claimants in Land Acquisition Case No. 11/73 preferred First Appeal No. 408/75 and on behalf of the State Cross Appeal No. 732/75 is filed. In the Land Acquisition Cases Nos. 9/73, 7/73, 8/73, and 10/73, the First Appeals respectively 308/75, 309/75, 310/75 and 311/75 were preferred on behalf of the State whereas in all of them Cross Objections have been filed by the respective claimants. Since all these cases arose out of a common notification issued by the State, and also as it was the same acquisition proceedings, we are deciding all these appeals by this common judgment. Incidentally, the matters were heard also together by us.

3 and 4. xx xx xx

5. In First Appeal No. 408/75, the claimants have also assailed the decision of the learned trial Judge by which he claim for injurious affection. The claimants submit that the learned trial Judge erred in holding that they were not entitled to any damages (that is to say compensation) for the severance of their lands. They have claimed Rs. 3/- per sq. metre as severance charges. The only evidence led by the claimants, is the deposition of Abdulrehman Haji (Ext. 24) who deposed that Rs. 3/- per for sq. metre has been claimed injurious affection for severance. The learned trial Judge observe in his judgment while discussing Point No. 5 that except for the bare word of the claimant No. 4, Abdulrehman Haji, there is no evidence to show the precise nature and extent of the injurious affection. He also observed that there is no evidence that the margin was required to be kept under the rules framed under the Land Revenue Code. Consequently, he disallowed in his claim for injurious affection. The learned Government Pleader, Mr. Nanavati, fairly accepted that on account of the splitting up of the claimants' lands on account of the laying down of the road Brought the acquired lands in question there would certainly be injurious affection, but his argument was that it was for the claimants to prove the extent of injurious affection and that if the claimants have chosen not to do so, it would not be open to the Court to enter into the field of conjecture in determining the extent of injurious affection. We have considered the argument of Mr. Nanavati and he is right when he submits that if the claimants had examined an expert, he could have given us an idea about the extent of the depreciation in value which the remaining land is likely to suffer on account of injurious affection. But it cannot be gainsaid that even if the expert had been examined, he would have to enter into guesswork to reach a precise opinion about the extent of severance. The value ~of the expert's evidence is that it assists the Court in reaching a particular conclusion where technical assistance is necessary. However, it cannot be laid down as a rule of law that where expert assistance is not available and where a reasonable guess can be made from whatever evidence there is on record, the Court would be precluded from doing so only because the expert evidence is not led in a particular case. We have perused a certified copy of the sketch which is to be found at Ext. 67. It dis. closes that the proposed road splits up the claimants' land bearing Survey No. 376 into two parts - and we further find that both of them are rendered deshaped. The southern piece is triangular in shape while the northern piece acquires an awkward shape, It also appears that a large chunk from the claimants' land is acquired and the resultant two pieces are comparatively of very small size. The consequent injurious affection would consist of the fact that the remaining two pieces will have a reduced salability in the market. In view of the fact that 'the land does not remain a compact and a composite block, the potentiality of its residential and commercial development would also be affected. Now, so far as the potential harm to the claimants is concerned, even for an expert it would remain a guess as there cannot be an instance to provide guidance. In such ' cases, necessarily the injurious affection is required to be estimated on individual basis and a search for a guideline from an instance would be a futile at-tempt as indeed no instance can be found for a loss or damage which stands on a peculiar and special footing. In such circumstances, we are of the view that damage suffered by the claimants cannot go: uncompensated altogether and we must make our best endeavour to mete out justice to them, although we must be on guard while doing so, as our conclusion must be based on a broad basis and common sense inference. We are, therefore, on the opinion, having taken the pros and cons of the questions into account, that if we allow the claimants the compensation for injurious affection to the extent of Rs. 2/per sq. metre, it would serve the purpose. The market value of the acquired land is reached on the basis of the instances and now our estimate of the injurious affection to the remaining portion works out at less than 1/6th of it and it appears to us that seeing from this point of view also our estimate is fair and reasonable.

6 to 11. xx xx xx

12. Before we conclude the judgment, we have to consider the last but an important question about the claim of interest at the rate of six per cent under Act No. 13 of 1967, which was raised by the learned Advocate for the claimants before the learned Judge but which the learned Judge, for the reasons recorded by him in his judgment rejected. It was argued on behalf of the claimants that the claimants were entitled to the interest, besides the interest to be awarded under S. 28 of L. A. Act, the additional six per cent interest under Section 4(3) of the L. A. Act, Act No. 13 of i967. In order to appreciate this argument, which was raised on behalf of the claimants, it is necessary to have before 'us the full text of S. 4(3) of the L A. Act, Act No. 13 of t967, which runs as under:-

'(3) Where acquisition of any particular land covered by a notification under sub6ection (1) of S. 4 of the principal Act, published before the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, is or has been made in pursuance of any declaration under Section 6 of the principal Act, whether made before or after such commencement, and such declaration is or has been made after the expiry of three years from the date of publication of such notification, there shall be paid simple interest, calculated at the rate of six per cent per annum, on the market value of such land. as determined under Section 23 of the principal Act, from the date of expiry of the said period of three years. to the date of tender of payment of compensation awarded by the Collector for the acquisition of such land: 'Provided that no such interest shall be payable for any period during which the proceedings for the acquisition of any land were held up on account of stay or injunction by order of a Court.' 'Provided further that nothing in this sub-section shall apply to the acquisition of any land where the amount of compensation has been paid to the persons interested before the commencement of this Act'.'

13. It was contended that according to this provision, if notification under Section 4 is published before Act No. 13 of '1967.and notification under S. 6 has been published after the expiry of three years from the date of p0blication of notification Under -Section 4 of the principal Act, interest calculated at the rate of six per cent must be Paid on the market value of such land as determined under S. 23 of the principal Act. It also lays down that such interest has to be paid from the date of expiry of the said period of three years until the date of payment of compensation. In other words, the claimants claim that they are entitled to the interest simultaneously under S. 28 of the principal Act as well a, under S. 4(3) of Act No. 13 of 1967. There is a proviso to Section 4(3) that no such interest shall be payable for any period during which the Proceedings for acquisition of land were hold up on account Or Stay Of injunction by order of a Court but that proviso is not relevant for our purpose. Similarly, there is also Proviso that nothing in this Sub-section, namely 4 (3) Shall apply to the a0quisition of any land where the amount of compensation has been paid to the persons interested before the commencement of this Act, namely Act No. 13 of 19.67, but that proviso is also not relevant for our purpose. The learned trial Judge took the view that the amendment on which the claimants relied was not an amendment to Section 34 of the L. A. Act (or for that matter to S. 28 of the L. A. Act). The learned Judge was of the further view that Act No. 13 of 1967 was enacted for the purpose of validating certain acquisitions and that therefore the provisions in the Act relating to interest were not general provisions for awarding interest in all the cases, but they were to apply only in those cases wherein inquisitors stood validated by Act No. 13 of 1967. The learned trial Judge observed in his judgment: 'In. my view under S. 4(3) of the Act No. 13 of 1967 interest at 6 per cent provided in it has to be given only in cases of acquisition which are validated under the said Act. If the legislature intended to award interest at 6 per cent as provided in Section 4, sub-clause (3) of the Act No. 13 of 1967 the legislature would have amended Section 34 accordingly but it is not so'. With respect. we are unable to agree with the view taken by the learned trial Judge. The perusal of the Act No. 13 of 1967 makes the intention of the Legislature clear. What the Legislature intended was. to validate certain, acquisitions as provided in Section 4 of the same Act and at the same time to give special interest at the rate of six per cent per annurm because of ' the delayed effect given to those acquisitions. The learned Judge missed the point that even the present acquisition proceedings stood validated by the provisions of this Act and but for them they would have been challenged. So, the learned Judge ought to have allowed the interest under S. 4(3) of the Act even under the view which he took of the, matter. it is necessary to bear in mind that the provisions regarding interest under Section 28 of the principal Art and those of Section 4(3) of Act No. 13 of 1967 operate under different sets of circumstances. Section 28 is a general provision dealing with the question of interest in all acquisitions. Section 28 is modified by the Gujarat Amendment, but the amendment is no demand for our present discussion because it deals with only the rate of interest. Under S. 28 the interest is required -to be paid from the date on which the possession of the land was taken to the date of the payment is Court, whereas the interest which is required to be paid under s. 4(3) of Act No. 13 of 1967 is from a period after the expiry of three years from the date of the publication of notification tinder S. 4 till the period of payment or tender of payment. It is also necessary to consider that Act No. 13 of 1967 was passed to meet with the situations arising on account of undue delay in the publication of subsequent notifications and on that' account certain acquisitions having upon rendered illegal by the Supreme Court. ft appears that when a special effect was sought to be given as specified under ill provisions of S. 4 of the Act, in, order to validate certain acquisitions despite delay, the provision about interest was incorporated in order to compensate such delay and therefore it is difficult to assure that the provision of S. 4(3) of Act No. 13 of 1967 was introduced in lieu of S. 28 of the principal Act. But its effect must be to provide additional interest as; specified therein to the concerned claimants for those cases wherein acquisitions stood validated by the provisions of the Act. One additional position must also be considered as it supports our view that S. 4(3) of Act No. 13 of 1967 is an additional provision for interest and that, is that Whereas under Section 28 the interest is to be given on the additional amount of compensation awarded by the Court over the amount awarded by the Collector, and hence it would include the market value as well as solatium. under S. 4(3) of the Act ,No. 13 of 1967, the interest is to be calculated at the rate of six per cent per annum on the market value of such l1and alone which would exclude solatium and such other compensation which may be given as for example for injurious affection. The claimants in 1~'irst Appeal No. 408i75 and the claimants-respondents who have lodged their Cross Objections in First Appeals Nos. 308/75, 309/75, 31O/75, and 311/75 must be awarded interest as provided in Section 4(3) of Act No. 13 of 1967 over and above the interest which they are entitled to get at (he rate of 4 1/2 per cent under S. 28. We may incidentally mention that it is not in dispute that all the pre-conditions which are required to exist for the application of Section, 4 (3) of Act No. 13 of 1967 are present in the present cases.

14. Ordered accordingly.


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