Dismissed

Larsen and Toubro Ltd. v. Heirs of Shantiben Wd-O Kanjibhai Morarjibhai

Gujarat HC7 Aug 2018FA/2166/2015

Case brief

AI extract

What is this about?

The High Court dismissed two First Appeals filed by Larsen and Toubro Ltd challenging enhanced land compensation awards. The Court held that since the appellant was served notice but did not appear to oppose the reference, the claim of no hearing was unsustainable, and the appeals failed.

What did the court decide?

Both First Appeals dismissed; Record remanded to Land Reference Court.

Larsen and Toubro Ltd. Vs Heirs of Shantiben Wd-O Kanjibhai… — Land Acquisition | Gujarat HC (2018)

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C/FA/2166/2015 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2166 of 2015

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R/FIRST APPEAL NO. 2167 of 2015

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	NO
2	To be referred to the Reporter or not ?	NO
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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LARSEN AND TOUBRO LTD... Petitioner

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Versus

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HEIRS OF SHANTIBEN WD-O KANJIBHAI MORARJIBHAI & 10....

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Respondents

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Appearance:

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MR TEJASH SATTA, ADVOCATE WITH MR ANIP A GANDHI(2268) for the PETITIONER(s) No. 1

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FENIL D SHAH(7598) for the RESPONDENT(s) No. 1,10,2,3,4,6,8,9

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MR UTPAL M PANCHAL(1075) for the RESPONDENT(s) No. 1,10,2,3,4,6,8,9 MR RAKESH PATEL, AGP for the Respondent No.11

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RULE SERVED(64) for the RESPONDENT(s) No. 11,5,7

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 07/08/2018

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ORAL COMMON JUDGMENT

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1 Since the issues raised in both the captioned appeals are interrelated and the challenge is also to a selfsame award and decree

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C/FA/2166/2015 JUDGMENT

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passed by the Land Reference Court, those were heard analogously and are being disposed of by this common judgment and order.

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2 The First Appeal No.2166 of 2015 arises from a Land Reference Case No.56 of 1989, whereas the First Appeal No.2167 of 2015 arises from a Land Reference Case No.26 of 1991. Both the captioned First Appeals under Section 54 of the Land Acquisition Act are at the instance of the company for whose purpose, the land came to be acquired by the State authorities and is directed against the judgment, award and decree dated 22^nd March 2011 passed by the 6^th Additional Senior Civil Judge, Surat in Land Reference Case No.56 of 1989 and consolidated land Reference Case No.26 of 1991.

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3 It appears from the materials on record that the land of the original claimants came to be acquired as the appellant company wanted to put up construction of residential quarters for its employees. Compensation to the tune of Rs.15/- per sq. mtrs. came to be awarded in favour of the original claimants by the authorities concerned under Section 11 of the Land Acquisition Act. The original claimants, being dissatisfied with the amount of compensation determined, filed applications under Section 18 of the Land Acquisition Act before the Collector and prayed for a reference to the Civil Court concerned. This is how the two land reference cases came to be registered in the Court of the 6^th Additional Senior Civil Judge, Surat.

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4 The two land reference at the instance of the original claimants came to be partly allowed. The operative part of the judgment and award reads as under:

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“ – :: Final Order :: –

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C/FA/2166/2015 JUDGMENT

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(1) Present application of the applicants is partly allowed.

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(2) Moreover, I hold that as per provisions of Section-23 of the Land Acquisition Act, applicants in this case are entitled to receive compensation from the opponents in connection with their acquired land as per the market value of that entire land at Rs. 30/- (Rupees Thirty Only) per Sq. mtr.

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(3) Further, as per the provisions of Section – 23(2) of the Land Acquisition Act, I hold that the applicants are entitled to get from the opponents, the amount of solatium at the rate of 30% upon the amount of compensation being admissible to them as per market value of the property acquired.

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(4) Moreover, as per Section-23(1-A) of the Land Acquisition Act, I hold that the applicants are entitled to get from the opponents, the amount at the rate of 12% per annum on the amount of compensation being admissible to them as per market value, for the period commencing on 24/1/1986 being date of publishing of notification under Section—4 to 27/4/1987 being the date of award under Section—11.

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(5) Further, I hold that as per provisions of section - 28 and 34 of Land Acquisition Act, the applicants of the present case are entitled to get interest at the rate of 9% per annum for the period of first year from the date on which they took possession of the acquired land and thereafter, interest at the rate of 15 % per annum for the period till such amount is deposited in the Court on total amount of compensation admissible as per aforesaid detail aggregating the amount of compensation admissible as per aforesaid details to applicants as per market value and amount of solatium determined at the rate of 30% and also on the admissible amount determined at the rate of 12 % for the period between 24/01/1986 to 27/04/1987, as per provision of section 23 (1-A) of Land Acquisition Act.

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C/FA/2166/2015 JUDGMENT

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(6) Further, I also hold that if in connection with the acquired land, any compensation, solatium, expense or interest in any form has been paid previously to applicants by the opponent, then, the opponent shall be entitled to get such amount as set-off out of the amount of compensation as ordered today as per the aforesaid detail.

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(7) Further, the opponent shall bear their respective expense and the opponent shall also bear legitimate expense incurred by the applicants.

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(8) Further, the applicant has given undertaking regarding Court Fees Stamp earlier. But, the applicant shall give undertaking again showing their willingness to pay necessary court fees and to comply with whatever order will be passed by the Hon'ble Supreme Court regarding payment of Court Fees Stamp in connection with the appeal pending before it.

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(9) Necessary award to be drawn as per aforesaid order.”

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5 Thus, it appears that the amount of compensation came to be enhanced from Rs.15/- per sq. mtrs. to Rs.30/- per sq. mtrs. I take notice of the fact that the judgment and award came to be pronounced on 22^nd March 2011. It is the case of the appellant herein that it had no idea about the land reference proceedings before the Civil Court concerned. In such circumstances, these two First Appeals came to be filed with delay of 1157 days. A Coordinate Bench of this Court, by order dated 14^th September 2015, condoned the delay of 1157 days in preferring the two First Appeals by imposing costs of Rs.25,000/- in each of the appeals.

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6 Mr. Tejas Satta, the learned counsel appearing for the appellant

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C/FA/2166/2015 JUDGMENT

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vehemently submitted that his client had no opportunity to say anything as regards the enhancement of the compensation. According to the learned counsel, his client had no idea or knowledge that the original claimants had preferred application under Section 18 of the Land Acquisition Act and the reference was forwarded by the Collector to the Civil Court at Surat. The submission is that the appellant was not given any opportunity of hearing in the matter. Mr. Satta, the learned counsel, in support of his submission that no opportunity of hearing was given to his client and the matter deserves to be remitted to the Land Reference Court, has placed reliance on the following decisions of the Supreme Court:

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[1] Union of India vs. Kolluni Remaiah [1994 (1) SCC 367]

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[2] Union of India vs. She Singh and others [1993 AIR SCW 701]

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[3] Neelagangabai vs. State of Karnataka [(1993) 3 SCC 617]

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[4] Krishi Upaj Mandi Samiti vs. Ashok Singhal and others [AIR 1991 SC 1320]

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[5] Uttar Pradesh Avas Evam Vikas Parishad vs. Gyan Devi [(1995) 2 SCC 326]

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7 In such circumstances referred to above, Mr. Satta prays that the judgment and award be quashed and the matter be remitted to the Court concerned for fresh hearing so that the appellant can put forward its case.

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8 Both these appeals have been vehemently opposed by Mr. Utpal Panchal, the learned counsel appearing for the original claimants i.e. the respondents herein. Mr. Panchal would submit that the appellant was, in

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C/FA/2166/2015 JUDGMENT

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fact, served with the notice issued by the Land Reference Court, but despite service of such notice, none appeared on behalf of the appellant company and opposed the land reference cases. In such circumstances, according to Mr. Panchal, it cannot be said that no opportunity of hearing was given to the appellant company. Mr. Panchal, in such circumstances, submits that there being no merit in both the First Appeals, the same be dismissed.

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9 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Land Reference Court committed any error in passing the impugned judgment and order.

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10 Both the First Appeals came to be admitted on 20^th October 2015. On the Civil Applications, the following order was passed:

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“ Rule returnable on 22.01.2016.

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Interim relief in terms of para 10(A) on condition that appellant shall deposit 100% awarded amount within 4 weeks.”

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11 Pursuant to the order passed by this Court dated 20^th October 2015 referred to above, in one of the appeals, an amount of Rs.6,61,788/- came to be deposited, and in the connected appeal, an amount of Rs.3,45,581/- came to be deposited with the Land Reference Court.

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12 Later, on 11^th February 2016, this Court passed the following order on the civil applications:

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“1. Though, Rule is served to the opponents, more particularly, original claimants, none appears on their behalf.

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C/FA/2166/2015 JUDGMENT

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2. Learned advocate Mr.Tejas Satta appearing for learned advocate Mr.A.A. Gandhi for the applicant states at bar that order dated 20.10.2015 passed by this Court has been complied with and the amount awarded by the learned trial Judge has been deposited with the concerned trial Court.

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3. In light of this position, order dated 20.10.2015 is hereby made absolute till final disposal of appeal. The trial Court is directed to invest the amount deposited by the applicant in cumulative F.D.R. initially for a period of two years and thereafter, the same shall be renewed from time to time till final disposal of appeal. In case of difficulty, original claimants will be at liberty to apply for suitable modification, if so required.

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4. In view of the above, the present applications stand disposed of. Rule is made absolute accordingly.”

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13 Let me now look into the findings recorded by the Court below so as to answer the only argument canvassed by the learned counsel as regards no opportunity of hearing being given to the appellant. The Land Reference Court, in para 2 of its judgment, has observed as under:

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“(2) Looking to the record of both the present applications, it appears that, as Opponent No.1 was issued notice in respect of both the applications, Ld. A.G.P. appeared on his behalf and separate written reply has been filed on his behalf in both the applications vide Exhibit-6. Both the written replies are almost similar. Looking to the details of both the replies, it appears that, he has denied the prayer of the applicants regarding further compensation by his reply and contended that, the award passed in favour of the Opponent is legal, proper and sufficient. As this award has been passed considering the proper grounds, he has mostly denied the facts of the applications of the applicants regarding further compensation.

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As far as the question of Opponent No.2 is concerned, as an application was filed to join Opponent No.2 as party, the Opponent No.2 was issued Notice at Exhibit-14. Thereafter, the Opponent No.2 was

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C/FA/2166/2015 JUDGMENT

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served the notice dated: 08/03/2004 without exhibit number at the relevant time. But, no one has appeared on his behalf. However, looking to the record, no order has been passed below his application for joining the party. But, looking to the record of this case, it is clearly found that, the Opponent No.2 has been intimated about above notice invariably and he has been provided opportunity to appear and make submission. Moreover, looking to the provisions of Land Acquisition Act, the acquiring body is required to be intimated about the notice for giving them opportunity to make submissions, but no provisions regarding joining party is provided in this act. Looking to the ingredients of section-20, as it is necessary that, they shall be provided opportunity to make submissions in reference to the application of the applicant, they have been served the notice though they have not been joined as party. Considering the same, they have been given opportunity to make submissions by this court in reference to the present application of compensation, but no one has appeared on their behalf or even a reply has also not been filed.'

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14 Thus, the findings recorded by the Court below make it abundantly clear that although notice was served upon the appellant, yet the appellant did not remain present before the Land Reference Court and oppose the reference.

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15 As the learned counsel appearing for the appellant disputed the findings recorded by the Land Reference Court, the Record and Proceedings was called from the Registry of this Court and the same was examined by me in presence of all the learned counsel. The examination of the Record and Proceedings would reveal that there is a stamp of the company with signature of an official duly acknowledging the receipt of the notice issued by the Court. In such circumstances, there is no further scope for the appellant to argue that no opportunity of hearing was given.

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C/FA/2166/2015 JUDGMENT

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16 I take notice of the fact that the acquisition is of the year 1989. It has been by now almost thirty years. But, unfortunately, the claimants have not received a single penny towards the compensation.. This is something very disturbing. The claimants hail from poor strata of society.

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17 I do not think any debate is necessary so far as the proposition of law that no person should be condemned unheard is concerned. However, the facts of this case are otherwise. If a party is given an opportunity, but such opportunity is not availed of, then such party cannot complain that no opportunity of hearing was given. In such circumstances, none of the decisions of Supreme Court referred to above are helpful to the appellant in any manner.

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18 In view of the above, no case is made out for remand and fresh hearing of the land reference cases.

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19 In the result, both the First Appeals fail and are hereby dismissed.

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20 The Registry shall send back the Record and Proceedings to the Land Reference Court at the earliest.

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(J.B. PARDIWALA, J.)

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CHANDRESH

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Larsen and Toubro Ltd. v. Heirs of Shantiben Wd-O Kanjibhai Morarjibhai

Case brief

What is this about?

What did the court decide?

Larsen and Toubro Ltd. v. Heirs of Shantiben Wd-O Kanjibhai Morarjibhai

Case brief

What is this about?

What did the court decide?

What the court decided

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