Rajasthan High Court – Jodhpur
Lrs Of Sohan Prakash vs Sec., K.U.M.Samiti And Ors on 30 April, 2026
[2026:RJ-JD:18630]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Miscellaneous Appeal No. 1681/2007
1. Lrs Of Dhanraj S/o Shri Kistur Chand Mahajan (Kothari)
1/1 Shanti Lal S/o Dhan Raj Kothari, aged 54 years
1/2 Ashok S/o Shri Dhan Raj Kothari, aged 40 years
1/3 Mahendra S/o Shri Dhan Raj Kothari, aged 38 years
1/1to 1/3 are R/o Mukharjee Chowk, Kankroli District
Rajsamand.
1/4 Smt. Kesar Bai W/o Roshan Lal, aged 49 years, R/o Binol,
Tehsil and District Rajsamand.
1/5 Smt. Lad Devi W/o Kanhaiya Lal, aged 46 years R/o
Piplansi, Tehsil and District Rajsamand.
1/6 Smt. Pushpa Devi W/o Puran Chand Dhalawat, aged 44
years, R/o Kankroli, Tehsil and District Rajsamand
1/7 Smt. Munna Devi W/o Dilip Kumar Lodha, aged 42 years,
R/o Dhoinda, Tehsil and District Rajsamand
----Appellant
Versus
1. Secretary Krishi Upaj Mandi Samiti, Nathdwara Rajsamand
2. Land Acquisition Officer (SDO), Rajsamand
3. Learned District Judge, Rajsamand
----Respondents
Connected With
S.B. Civil Miscellaneous Appeal No. 297/2006
Smt Sushila W/o Chandra Kant Kumawat, aged 65 years R/o
Near Shashi Guest House, Bhilwara Road, Kankroli, District
Rajsamand
----Appellant
Versus
1. Secretary Krishi Upaj Mandi Samiti, Nathdwara Rajsamand
2. Land Acquisition Officer (SDO), Rajsamand
3. Learned District Judge, Rajsamand
----Respondent
S.B. Civil Miscellaneous Appeal No. 399/2006
Secretary, Krishi Upaj Mandi Samiti, Nathwara, District
Rajsamand
----Appellant
Versus
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1. Shanti Lal S/o Late Shri Dhanraj R/o Kankroli, District
Rajsamand.
2. Ashok S/o Late Shri Dhanraj R/o Kankroli, District Rajsamand.
3. Mahendra S/o Late Shri Dhanraj R/o Kankroli, District
Rajsamand.
Respondent Nos.1 to 3, all R/o Near Shrinath Temple Kankroli,
District Rajsamand
4. Smt. Kesar Bai W/o Shri Roshan Lal, R/o Binol Tehsil and
District Rajsamand
5. Smt. Lad Devi, W/o Shri Kanhaiya Lal, R/o Piplasi Tehsil and
District Rajsamand
6. Smt. Pushpa Devi W/o Shri Pooran Mal, R/o Piplasi Tehsil and
District Rajsamand
7. Smt. Munna Devi W/o Shri Dilip Kunwar, R/o Dhoinda Tehsil
and District Rajsamand
----Respondents
S.B. Civil Miscellaneous Appeal No. 670/2006
Secretary Krishi Upaj Mandi, Nathdwara, District Rajsamand
----Appellant
Versus
Smt. Sushila Bai W/o Chandra Kant Kumawat, R/o near Bust
Stand Kankroli Tehsil and District Rajsamand
----Respondent
S.B. Civil Miscellaneous Appeal No. 678/2006
1. Lrs Of Sohan Prakash S/o Narayan Lal Mahajan (Pagariya)
1/1 Smt. Mohan Devi W/o Shri Sohan Prakash, aged 80 years.
1/2 Satesh S/o Shri Sohan Prakash, aged 49 years.
1/3 Prakash S/o Sohan Prakash, aged 44 years.
1/4 Smt. Chandradevi (D/o Shri Sohan Prakash) W/o Kundanlal
Bafana, aged 58 years, R/o Near Railway Station Charbhuja
Road, Amet Tehsil Rajsamand, District Rajsamand.
1/5 Smt. Vidhya Devi (D/o Shri Sohan Prakash) W/o Shri
Shobhagmal Sethi, aged 53 years, R/o Near Alok School, Vakel
Colony, Sector No.11, Udaipur
1/6 Smt. Hemlata (D/o Shri Sohan Prakash) W/o Basant Kumar,
aged 24 years Nahar R/o Mahendragarh, Bhiwara, Rajasthan
----Appellant
Versus
1. Secretary Krishi Upaj Mandi Samiti, Nathdwara Rajsamand
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2. Land Acquisition Officer (SDO), Rajsamand
----Respondents
S.B. Civil Miscellaneous Appeal No. 1672/2006
Secretary, Krishi Upaj Mandi Samiti, Nathdwara, District
Rajsamand
----Appellant
Versus
Lrs Of Sohan Prakash
1. Smt. Mohini Bai W/o Late Shri Sohan Prakash Pagaria, R/o
Kankroli, District Rajsamand
2. Satish Chandra S/o Late Shri Sohan Prakash Pagaria, R/o
Kankroli, District Rajsamand
3. Prakash Chandra S/o Late Shri Sohan Prakash Pagaria, R/o
Kankroli, District Rajsamand
4. Smt. Hema Bai D/o Late Shri Sohan Prakash Pagaria, R/o
Kankroli, District Rajsamand
5. Smt. Chandra Bai D/o Late Shri Sohan Prakash Pagaria, R/o
Kankroli, District Rajsamand
6. Smt. Vidhya Bai D/o Late Shri Sohan Prakash Pagaria, R/o
Kankroli, District Rajsamand
----Respondent
For Appellant(s) : Mr. Dilip Kawadia
Mr. Pooshan
Ms. Nidhi Singhvi
For Respondent(s) : Mr. Dhanesh Saraswat
Mr. Shubham Modi
HON'BLE MR. JUSTICE SANDEEP SHAH
Judgment
Reportable
18/04/2026
1. Date of conclusion of arguments 18.04.2026
2. Date on which judgment was reserved 18.04.2026
3. Whether the full judgment or only the
operative part is pronounced: Full Judgment
4. Date of pronouncement 30.04.2026
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1. The present appeals have been filed by the land-owners
challenging the reference order dated 13.09.2004 passed by
learned District Judge, Rajsamand in Civil Miscellaneous Case
No.29/98 (Reference) and connected matters under Section 18 of
the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act
of 1894’ for brevity), whereby, though the rate of land per bigha
was not enhanced, the respondent- Krishi Upaj Mandi Samiti,
Nathdwara was directed to make the payment of solatium at the
rate of 30% additional amount along with interest. The amount
towards the value of land was not enhanced, which occasioned the
filings of appeals by the land-owners.
2. The appeals have been filed by respondent- Krishi Upaj
Mandi Samiti against the same order, essentially challenging the
solatium part while asserting that at the date when the acquisition
proceeding was undertaken, there was no provision for solatium
which was introduced only later, on 24.09.1984. The appeals have
also been filed challenging the orders impugned passed by
Reference Court, alleging the filing of reference application being
time barred in accordance with the law of limitation as provided
under Section 18(2) of the Act of 1894 and thus the same could
not have been entertained.
Factual Matrix:-
3. Brief facts of the case are that the State Government issued
a notification under Section 4 of the Act of 1894 on 13.12.1979 for
the purpose of acquisition of land for establishment of Krishi Upaj
Mandi. Invoking the urgency clause, a notification under Section 6
read with Section 17 of the Act of 1894 was issued on 11.12.1980
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and thereafter, the possession of the land was taken from the
land-owners on 23.05.1981.
4. A draft award was subsequently prepared on 28.07.1986
with the specific condition that the same was sent for approval
before the learned District Collector. As per the note-sheets
available on record, the Collector approved the same on
05.11.1986 and thereafter, by way of order-sheet dated
17.02.1987, the draft award was directed to be treated as the
final award. The note-sheet dated 17.02.1987 reads as under:-
“i=koyh vkt is’k gqbZA ekeys esa fnukad 28-7-86 dks tkjh izLrkfor vokMZ dk
vuqeksnu Jheku dyDVj egksn; mn;iqj ds i= dz- F15/1(13) jktLo @
86@6631 fnukad 5-11-86 }kjk izkIr gks pqdk gSA vr% mDr vokMZ dks QkbZuy vokMZ
ekuk tkrk gS vokMZ dh jkf’k tek djkus ckcr Ñf”k mit e.Mh ukFk}kjk dks fy[kk
tkosAi=koyh ‘kqekj QSly gksdj uEcj ls de dh tkosA”
5. Post that on different dates, references were filed.
6. As per the averment made by respondent- Krishi Upaj Mandi
Samiti, the payments were deposited by respondent- Krishi Upaj
Mandi Samiti with the Land Acquisition Officer on 20.04.1988.
However, the fact remains that, as per the documents available on
record and the note-sheet in the case in hand, the payments were
received by the claimants at a much later date. Insofar as, the
claim of the legal representatives of Dhanraj is concerned, the
claim was approved by way of order dated 25.07.1992, whereby
directions were issued for releasing the amount subject to
submitting surety by them. Identically, in the case of Sushila Bai,
on an application filed on 11.07.1988, for receiving the amount
under protest, the order for releasing the amount was passed
much later, and that too on payment of surety.
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7. As per the averments made by the respondent- Krishi Upaj
Mandi Samiti, the reference application in the case of Lrs. of
Dhanraj being S.B. Civil Miscellaneous Civil Appeal No. 1681/2007
was filed on 19.09.1987. In case of Sushila being S.B. Civil
Miscellaneous Civil Appeal No.297/2006, the same was filed on
29.06.1988 and in the case of Lrs. of Sohan Prakash being S.B.
Civil Miscellaneous Appeal No. 678/2006, the same was filed on
20.07.1988.
8. It will be relevant to mention here that an issue arose as to
whether the sale deed, for the land in question, was void and in
violation of Section 42 of the Rajasthan Tenancy Act, 1955
(hereinafter referred to as ‘the Act of 1955’), as it then existed.
Consequently, a reference was made by the Land Acquisition
Officer by the State officials, and the payments were not released
to the claimants/land-owners despite the respondent- Krishi Upaj
Mandi Samiti having deposited the amount with the Land
Acquisition Officer.
9. Thus, references were made from both sides, and thereafter,
the Reference Court vide its award dated 13.09.2004, though did
not enhanced the amount as far as the value of land is concerned,
however, directed the payment of solatium along with the interest.
The same have been decided by a common judgment.
10. Being aggrieved against the same, three appeals have been
filed by the land-owners and three appeals have been filed by the
respondent- Krishi Upaj Mandi Samiti. Since, issues in all the
cases are common and order impugned is also common, all six
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appeals were heard together and are being decided by this
common order.
Arguments of learned counsel for the appellants-land
owners:-
11. Learned counsel, Mr. Dilip Kawadia, appearing for the
appellants-land owners submitted that the Land Acquisition Officer
has failed to consider that the valuation of land was to be
determined on the basis of the market value of the land as on the
date of issuance of the notification under Section 4 of the Act of
1894. He further asserted that, instead of considering the sale
deeds (Exhibits 1 to 4) placed on record, the Land Acquisition
Officer relied upon an alleged report of the Tehsildar, wherein the
rate of land was stated to be Rs. 10,452/- per bigha. He further
submitted that the report was neither exhibited nor was the
Tehsildar called in the witness box and thus the appellants were
denied the opportunity of cross-examine the Tehsildar to ascertain
the basis for valuing the land in question. He also contended that,
even if, the DLC rates were specified by the Tehsildar, such rates
could not be the sole basis for determining the market value of the
land and the same ought to be determined on the basis of sale
deeds of neighbouring land.
11.1. Learned counsel further submitted that the Land
Acquisition Officer acted beyond his jurisdiction in declaring the
sale deeds placed on record as void. He further submitted that,
even assuming that as per Section 42 of the Act of 1894 a
fragment could not be sold, the Land Acquisition Officer failed to
consider that the sellers had sold their entire share in the
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property, and therefore, the embargo of Section 42 of the Act of
1894 would not apply. It was further asserted that, assuming that
the sale could not have been effected, it was beyond the domain
of the Land Acquisition Officer to declare the same as void, and
only the original seller could have raised an objection regarding
validity of the sale deed. He further asserted that it was not a case
where the State Government had declared the sale as void and
taken possession of the land. In that view of the matter, the
determination of the value of land, based upon the alleged report
of the Tehsildar, while not relying upon the sale deeds, wherein
the valuation of land was shown to be Rs.26,660/- per bigha, is
without any justifiable basis.
11.2. Learned counsel further asserted that, though the
learned Reference Court has framed various issues, however,
without assigning any reasons while deciding issue No.1, the
Reference Court has considered the rate fixed by the Tehsildar as
the market value of the land and failed to consider that the report
was neither exhibited nor placed on record in the proceedings.
Thus, no reliance could had been placed on such report. He further
argued that on its own, the Reference Court has held that since
the land was fragmented by way of the sale deeds, reliance upon
which was placed by the appellants, the valuation shown therein
cannot be considered. He asserted that fragmentation of land
would make no difference to its value. Learned counsel further
submitted that the potentiality of the land and the location of the
land have also not been considered, inasmuch as, the same was
situated on the Kankroli-Bhilwara Highway and was within the
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Municipal limits adjoining the abadi area. He further asserted that
the potentiality of the land was an important factor to be
considered by the learned Land Acquisition Officer as well as the
Reference Court.
11.3. For the purpose of determining the valuation of the land
and for valuation of fragmented portions of the land, learned
counsel relied upon the judgment passed by the Hon’ble Apex
Court in the case of “Bhagwathula Samanna & Ors. vs.
Special Tahsildar and Land Acquisition Officer,
Visakhapatnam Municipality” reported in (1991) 4 SCC 506,
to fortify the stand that comparable sale deeds are a key factor in
determining the market value of the land. Learned counsel further
relied on the judgment passed by the Hon’ble Apex Court in the
case of “Krishi Utpadan Mandi Samiti Sahaswan District
Badaun through its Secretary vs. Bipin Kumar and Ors.”
reported in (2004) 2SCC 283 and thus prayed for enhancement
of the award while calculating the value of the land at Rs.26,660/-
per bigha in each of the cases. He further referred to his
pleadings, wherein, the appellants had confined the relief, as far
as the enhancement of the value of the land is concerned, to
Rs.26,660/- per bigha only.
Arguments by learned counsel for the respondent-Krishi
Upaj Mandi Samiti:-
12. On the other hand, learned counsel, Mr. Dhanesh Saraswat
for the respondents- Krishi Upaj Mandi submitted that, as far as
the valuation of the land is concerned, the same has rightly been
calculated by the learned Reference Court while relying upon the
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report of the Tehsildar, which though was not exhibited, however,
the same was placed before the Land Acquisition Officer. Learned
counsel further submitted that in case of fragmentation, the sale
was void, and in view of specific provisions of Section 42 of the
Act of 1955, as it then existed, the learned Land Acquisition
Officer as well as the learned Reference Court have rightly held
that the valuation of land as shown in the sale deeds cannot be a
determining or even a guiding factor.
12.1. As regards to the reference filed by the land owners,
counsel raised a preliminary objection that the reference was filed
beyond the period of limitation as provided under Section 18(2) of
the Act of 1894. He submitted that, assuming the case of
petitioner falls under Sub-Section 2(b) of Section 18 of the Act of
1894, even then the reference was filed beyond a period of six
weeks from the date of deposit of the acquisition amount by the
respondent- Samiti. He further asserted that provisions of Section
5 of the Limitation Act, 1963 do not apply to reference
applications under Section 18 of the Act of 1894, and therefore,
the reference was wrongly entertained, as the same was beyond a
period of limitation, inasmuch as, the reference was not filed
within a period of six weeks of the date of receipt of the
compensation amount. He further asserted that the language of
Section 18(2)(b) of the Act of 1894, insofar as, the requirement of
notice from the Collector under Section 12(2) of the Act of 1894,
has to be understood with reference to the date of receipt of
compensation. He thus contends that the reference itself could not
be entertained.
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12.2. In the second limb of argument, learned counsel for
respondent, Mr. Dhanesh Saraswat, submitted that with regard to
solatium and interest awarded by Reference Court, the provisions
with regard to awarding of solatium came into force on
24.09.1984 whereby Section 23 of the Act of 1894 was amended.
Prior to that, there was no provision for awarding of solatium. He
submitted that since possession was taken way back in the year
1981 and the notification under Section 4 of the Act of 1894 was
issued way back in the year 1979, the amended provisions cannot
be made applicable to the case in hand. He thus prayed for
quashing the impugned order dated 13.09.2004 passed by
Reference Court in all the cases.
Arguments on behalf of learned counsel for the appellants-
land owners in rejoinder:-
13. In rejoinder, learned counsel for the appellants/land-owners
submitted that, as far as the payment of solatium part is
concerned, the law in that regard is no longer res integra and has
been settled by a judgment passed by the Hon’ble Apex Court in
the case of “Bhag Singh & Ors. vs. Union Territory of
Chandigarh“, reported in 1985 (3) SCC 737, wherein it has
been held that this amendment provisions of law with regard to
payment of solatium would apply to all pending proceeding, also
and would not be confined to proceeding where the award has
been passed, but even to cases wherein, appeals are pending
before the Reference Court or even the High Court.
13.1. He further relied upon the judgment passed by learned
Apex Court in the case of “Panna Lal Ghosh vs. Land
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[2026:RJ-JD:18630] (12 of 28) [CMA-1681/2007]Acquisition Collector” reported in (2004) 1 SCC 467, wherein
it was held that the amendment with regard to amendment of
percentage of solatium would be applicable even to pending
proceedings. He further asserted that since the award was issued
much later, i.e. somewhere in the year 1986 whereas the
amendment came into force in the year 1984, the proceedings
were pending and solatium has rightly been ordered to be paid by
the Reference Court.
13.2. As regards the objection with regard to limitation is
concerned, learned counsel placed reliance upon the judgment
passed by the Hon’ble Apex Court in the case of “Bhagwan Das
& Ors. vs. State of Uttar Pradesh” reported in 2010 (3) SCC
545, wherein while dealing with both the clauses i.e. Clause 18(1)
and 18(2) of the Act of 1894, the Hon’ble Apex Court has held
that not only the knowledge of award but also the details of award
were required to be known, and only thereafter, the period of
limitation would commence. He further asserted that in the
present case, neither notice under Section 12(2) of the Act of
1894 was received by the appellants nor any details with regard to
the award specified and even the compensation has been paid
much later to them. He thus submitted that, the reference was
within the period of limitation and the objection raised by the
counsel for respondent- Samiti is without any basis, and the
appeals filed by them deserve to be quashed and set aside.
Analysis:-
14. Heard learned counsel for the parties and perused the
material available on record.
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15. Prior to embarking upon further discussion of the case in
hand, four issues arise for adjudication in the present case. The
same are as under:-
(1) Whether the valuation of the land made by the Land
Acquisition Officer and the Reference Court was justified,
considering the impact of Section 42 of the Act of 1955?
(2) Whether the report filed by the Tehsildar, which has not been
exhibited, could form a reasonable basis for determining the
valuation of land, if not so, how the market value was to be
determined?
(3) Whether the reference proceedings were barred by limitation
as provided under Section 18(2) of the Act 1894?
(4) Whether the amendment in Section 23 of the Act of 1894
with regard to payment of solatium and the amount provided
thereunder would be applicable to the case in hand?
Issue No.1:-
16. As far as the issue No.1 is concerned, admittedly the sale
deeds placed on record by the appellants, being Exhibit Nos.1 to 4
which are dated even prior to issuance of Section 4 notification,
specify the valuation of the land to be around Rs.26,660/- per
bigha. The appellants have confined their prayer for enhancement
of valuation of land to that extent only. No contrary document has
been produced to show that the valuation was wrongly arrived at
or that the market value of land or the neigbouring land was
totally different from that reflected in the exhibited documents.
Further, it is not at all disputed that the land in question is
situated on the Highway and is also adjacent to the abadi land.
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17. The Land Acquisition Officer as well as Reference Court have
not considered the valuation based upon the sale deeds by holding
the sale deed to be void being violative of Section 42 of the Act of
1955 as it then was. Section 42 of the Act of 1955, at the relevant
time, was as under:-
“42. General restrictions on sale, gift & bequest-
The sale, gift or bequest by a Khatedar tenant of his
interect in the whole or part of his holding shall be void, if-
(a) it is not of a survey number except when the area of
the survey number so sold, gifted or bequeathed is in excess of
the minimum area prescribed for the purpose of sub-section (1)
of section 53 in which case also the area not transferred shall not
be fragment:
Provided that this restriction shall not apply if the area so
transferred becomes merged into a contiguous survey number:
Provided further that this restriction shall not apply if the
sale, gift or bequest is of the entire interest of a tenant in the
survey number:
1
[Provided also that the State Government or any
authority or officer empowered by the State Government in this
behalf may exempt by general or special order and subject to
such conditions as may be specified, the sale, gift or bequest for
industrial, residential or commercial purposes, from this
restrictions.]
(b) such sale, gift or bequest is by a number of a
Scheduled Caste in favour of a person who is not a member of
the Scheduled Caste, or by a member of a Scheduled Tribe in
favour of a person who is not a member of the Scheduled Tribe.
18. What would be interesting is that, at the relevant time, one
more provision was existing and has not at all been considered by
both the Courts below, namely Section 42-A of the Act of 1955,
which provides as under:-
“42-A. Declaration as valid of sale, gift and bequest- Where
any sale, gift or bequest made by a Khatedar tenant of his
interest in the whole or part of his holding before the
commencement of the Rajasthan Tenancy (Amendment) Act,
1978 (Rajasthan Act 11 of 1978) was void on account of
contravention of any of the provisions of clause (a) of section
42, such sale, gift or bequest may be declared to be valid by the
Collector or any authority authorised by the State Government in
this behalf, on an application made to it or him in the prescribed
manner and on the payment of the prescribed fee, within 1[Four
years] of the commencement of the Rajasthan Tenancy
(Amendment) Act, 1981. Provided that-
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(a) Such sale, gift or bequest was otherwise legally valid
and in conformity with the provisions of the laws for the time
being in force except those contained in clause (a) of section 42;
(b) the parties to the sale, gift or bequest comply with all
the terms and conditions as may be prescribed by the rules or by
any special or general order;
(c) the payment is made of such premium or penalty as
may be prescribed;
(d) the applicant undertakes to pay urban assessment
levied at such rate and in accordance with such manner as may
be prescribed.]”
19. A bare perusal of Section 42 of the Act of 1955 reveals that,
for the purpose of sale to be void, it is mandatory on the part of
the authority to show that the land in question was not a part of
survey number and that the area which was sold was less than the
minimum area prescribed under Section 53(1) of the Act of 1955.
Further, there is an embargo on fragmentation, however, the
proviso clarifies that such restriction would not apply if the area so
transferred is merged into a contiguous survey number or if the
tenant has transferred by way of sale, gift or bequest, his entire
interest in the survey number.
20. Thus, it was, in the first instance the duty of the State
Government to show that the land was not part of survey or that it
was less than the area prescribed under Section 53 of the Act of
1955, which deals with division of holdings, or that the area
transferred was not merged into a contiguous survey number, or
that the entire interest of the tenant had not been sold.
21. A bare perusal of the sale deeds, Exhibit Nos. 1 to 4 reveals
that all the areas were contiguous and were sold as far as the part
of share of co-tenants (seller is concerned). Thus, the embargo of
Section 42 of the Act of 1955 would not apply to the case in hand.
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Furthermore, a bare reading of Section 42-A of the Act of 1955
shows that, even if, a sale is made and the same is declared as
void, then too, the Khatedar-seller still has a right to regularize
such sale upon payment of penalty/premium. The above-
mentioned provision has not at all been considered by the Courts
below while disregarding the sale deeds and treating them as
void.
22. Needless to emphasize that declaration of a sale of a third
person to be void was beyond the scope and jurisdiction of the
proceedings undertaken by the Land Acquisition Officer or the
Reference Court. Such an observation made is ex-facie beyond
jurisdiction and cannot be acted upon. It is thus clear that the
observation made by the Reference Court as well as the Land
Acquisition Officer with regard to the sale being void, and not
relying upon the valuation shown in the sale deed is ex-facie
illegal and cannot be countenanced. The issue is decided
accordingly.
Issue No.2:-
23. As regards the issue no.2 is concerned, firstly, the report of
the Tehsildar is not available on record and secondly, assuming the
same was available on record, then too, the document was not
exhibited ever in either of the three proceedings. The claimants
appeared in the witness-box and got documents exhibited. The
respondent- Samiti also got its officers examined and the
documents were also exhibited. However, the report of the
Tehsildar was never exhibited nor did the Tehsildar appeared in
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[2026:RJ-JD:18630] (17 of 28) [CMA-1681/2007]
the witness-box to show as to what was the basis for determining
the rate of the land, be it the DLC rate or the market value. The
language of the report, as quoted in the order impugned, does not
refer to co-relating the rate of the land with the market value of
the adjacent land or comparing it with any other sale deed. Thus,
simply based upon the report of the Tehsildar, the rate could not
had been determined more particularly, when the land in question
was adjacent to the abadi and for which the municipal board has
submitted a valuation report, which was exhibited by the
appellants as Exhibit-8.
24. Needless to emphasize that as far as the market value of the
land is concerned, the Hon’ble Apex Court in the case of “Jaw
Ajee Nagnatham vs. Revenue Divisonal Officer, Adilabad &
Ors.” reported in (1994) 4 SCC 595, has already held that the
prevailing market rate, as on the date of the notification under
Section 4 of the Act of 1984, would be relevant and the reference
to the sale deeds on the same land or neighborhood land or
similar advantages and features executed between willing vendor
and willing vendee will be a relevant criteria for determining the
market value. It was further observed that, DLC rate cannot be
the sole criteria for determining the market value of the land in
question. Furthermore, the Hon’ble Apex Court in the case of
Krishi Utpadan Mandi Samiti (supra) has rather dealt with the
issue of valuation being made as per the DLC rate and held that
such a valuation is clearly erroneous and the basis for determining
the market value has to be sale deeds of comparable land. It has
further been observed that the potentiality of the land has to be
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considered for determining the market value. The Hon’ble Apex
Court has held as under:-
“7. It has been held by this Court in the case of Jawajee
Nagnatham v. Revenue Divisional Officer [(1994) 4 SCC 595] that
market value under Section 23 of the Land Acquisition Act, 1894
cannot be fixed on the basis of a basic valuation register
maintained by the registering authority for collection of stamp
duty. Therefore, the reliance by the Reference Court on the
values of land fixed by the District Magistrate for stamp duty
purposes is clearly erroneous. For the purposes of the Land
Acquisition Act the market value must be determined on the basis
of sale deeds of comparable lands. In this case the Land
Acquisition Officer had taken note of one such sale deed where
the price was Rs 15.37 per sq yard. The Reference Court also had
before it the sale deed by which the respondent purchased a
portion of the acquired land. As stated above, the sale deed was
for Rs 15.40 per sq yard. Section 92 of the Evidence Act
precludes a party from leading evidence contrary to the terms of
a written document. It was, therefore, not open to the
respondent to urge that, even though his sale deed showed a
price of Rs 15.40 per sq yard the real market value was Rs 120
per sq yard. To permit a party to so urge would be to give a
premium to dishonesty. Parties who undervalue their documents,
for purpose of payment of stamp duty, cannot be allowed to then
claim that their own documents do not reflect the correct market
value. Therefore, as per sale instances of the comparable lands,
the market value, on dates of sales, were in the region of Rs
15.37 to Rs 15.40 per sq yard.
8. However, there is evidence of high potentiality. The
increase of 15% given by the High Court cannot, therefore, be
said to be unreasonable. Of course, the 15% increase has to be
on Rs 15.40 which is the figure shown in the sale deed. It cannot
be on Rs 120 as wrongly taken by the High Court. The High Court
also erred in considering only three years’ increase whereas in
fact there is four years’ difference between the respondent’s sale
deed and the acquisition proceedings. Thus taking an increase of
60% over the price of Rs 15.40 per sq yard, the value comes to
Rs 24.64 per sq yard. We, accordingly, set aside the orders of the
Reference Court and the High Court and fix the value at the rate
of Rs 24.64 per sq yard. The respondent will also be entitled to
solatium and other statutory benefits under the Land Acquisition
Act, 1894. ”
25. Furthermore, the Hon’ble Apex Court in the case of
“Thakarsibhai Devjibhai & Ors. vs. Executive Engineer,
Gujarat & Ors.” reported in (2001) 9 SCC 584 had held that
the acquisition being of a large area of land and the rate being
determined for a small area cannot be faulted with when the
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acquisition might be for a large area and the area becomes large
when clubbed together. The Hon’ble Apex Court has held as
under:-
“12. As we have said above the High Court fell into error by
reducing the quantum of compensation on this basis. The
reduction has been made for two reasons, one, that the present
acquisition is of larger area and second, the distance between the
land under acquisition and in Ext. 16 is about 5 km. With
reference to question of acquisition being of a larger area, the
error is, when we scan we find for the acquisition of each
landowner, it could not be said that the acquisition is of a large
area. Largeness is merely when each landholder’s land is clubbed
together then the area becomes large. Each landowner’s holdings
are of small area. Even otherwise, visioning in line with the
submission for the State we find Ext. 16 is about two hectares of
land which cannot be said to be of a small piece of land. So far as
the other question of distance between the two classes of lands is
concerned, that by itself cannot derogate the claim of the
claimant unless there are some such other materials to show that
quality and potentiality of such land is inferior. However, distance
between the land under Ext. 16 and the present land, even if
they are 5 km apart, would not be relevant, the relevancy could
be, their distances from Viramgam town. We find, as per the map
produced by the State, the present acquired land is about 3 km
away from it, while the land under Ext. 16 is about 2 km away
from it. This difference is not such as to lead to reduce the rate of
compensation, specially on the facts of this case. In the present
case, as we have recorded above, it has been found that the
quality including potentiality of land between Ext. 16 and the
present one are similar. No evidence has been led on behalf of
the State to find any difference between the two. In view of this,
the inference drawn by the High Court for reducing the
compensation by Rs 10 per sq m cannot be sustained. ”
26. Furthermore, the potentiality of the land with regard to it
being on the national highway and further being part of Municipal
limit and close by abadi area has not at all been considered by
both the authorities. The Hon’ble Apex Court in the case of
Bhagwathula Samanna (supra) has considered that aspect and
held that sale considerations, including the potentiality of land are
relevant factors for determining the valuation of the land, and held
as under:
“11. The principle of deduction in the land value covered by the
comparable sale is thus adopted in order to arrive at the market(Uploaded on 30/04/2026 at 08:46:10 AM)
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[2026:RJ-JD:18630] (20 of 28) [CMA-1681/2007]value of the acquired land. In applying the principle it is
necessary to consider all relevant facts. It is not the extent of the
area covered under the acquisition which is the only relevant
factor. Even in the vast area there may be land which is fully
developed having all amenities and situated in an advantageous
position. If smaller area within the large tract is already
developed and suitable for building purposes and have in its
vicinity roads, drainage, electricity, communications etc. then the
principle of deduction simply for the reason that it is part of the
large tract acquired, may not be justified.
12. The national highway runs very near to the proposed Port
Trust colony. The lands acquired already for the South Eastern
Railway Staff Quarters lie to the southern side of the land under
acquisition. The town planning trust road runs on the northern
side of the land under acquisition. The colony is in the fast
developing part of the municipal town. The plot of Ac. 1.68 cents
in Survey No. 2/2A acquired for the formation of the diversion
road is adjacent to built-in area. The land involved in these cases
is of even level and fit for construction without the necessity of
levelling or reclamation. The High Court has itself concluded on
the evidence that the lands covered by the acquisition are located
by the side of the National Highway and the Southern Railway
Staff Quarters with the town planning trust road on the north.
The neighbouring areas are already developed ones and houses
have been constructed, and the land has potential value for being
used as building sites. Having found that the land is to be valued
only as building sites and having stated the advantageous
position in which the land in question lies though forming part of
the larger area, the High Court should not have applied the
principles of deduction. It is not in every case that such deduction
is to be allowed. Where the acquired land is in the midst of
already developed land with amenities of roads, electricity etc.,
the deduction in the value of the comparable land is not
warranted.”
27. Thus, the determination of the market value of the land by
the learned Courts below, based upon the report of the Tehsildar,
while ignoring the valuation of a land as ascertained by the
comparable sale deeds was faulty and the appellants are rather
entitled for enhancement of the compensation while determining
the valuation of land at the rate of Rs.26,660/- per bigha, for
which, comparable sale deeds have already been placed on record
by the land-owners/appellants.
Issue No.3:-
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[2026:RJ-JD:18630] (21 of 28) [CMA-1681/2007]
28. As far as issue no.3 is concerned, it will be relevant to quote
Section 18 of the Act of 1894, which provides as under.
“18. Reference to Court.- (1) Any person interested who has not
accepted the award may, by written application to the Collector,
require that the matter be referred by the Collector for the
determination of the Court, whether his objection be to the
measurement of the land, the amount of the compensation, the
persons to whom it is payable, or the apportionment of the
compensation among the persons interested.
(2) The application shall state the grounds on which objection to
the award is taken:
Provided that every such application shall be made,-
(a) if the person making it was present or represented
before the Collector at the time when he made his award, within
six weeks from the date of the Collectors award;
(b) in other cases, within six weeks of the receipt of the
notice from the Collector under section 12, sub-section (2), or
within six months from the date of the Collectors award,
whichever period shall first expire.”
29. A bare perusal of the award in question will reveal that the
appellants were not even present when the award was passed and
rather the award in question was only a proposed award, which
was later approved by the Collector on 05.11.1986, which is clear
from the note-sheet dated 17.02.1987, as quoted supra. Thus, the
case in hand does not fall under Section 18(2)(a) and rather falls
under Section 18(2)(b) of the Act of 1894. As far as Section 18(2)
(b) of the Act of 1894 is concerned, though the respondent-
Samiti had stated that they had deposited the amount before the
Land Acquisition Officer on 20.04.1988, therefore, the date of
knowledge of the award has to be treated as 20.04.1988.
However, the facts of the case, as stated supra, will reveal that
since the respondent- Samiti itself was of the view that the sale
deed exhibited by appellants were void, they had objected to the
disbursement of the amount to the appellants and had also
submitted a reference before the Reference Court.
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[2026:RJ-JD:18630] (22 of 28) [CMA-1681/2007]
30. As stated supra, the amount of compensation was dispatched
to some of the appellants in the month of November, 1988 and to
some in the year 1992 and that too after giving an undertaking
that they shall refund the amount in case order is reversed during
the proceeding of the reference. Meaning thereby, the amount was
disbursed much after filing of the reference proceedings.
Admittedly, no notice under Section 12(2) of the Act of 1894 was
sent by the Collector to the appellants prior to filing of the
reference and thus, in absence of the notice in question or
payment of amount of award, the issue of limitation for filing a
reference does not arise in the case in hand, more particularly,
when the reference proceedings were initiated way back in the
month of June 1987 and in some cases in the month of June
1988.
31. Reference Court has rightly dealt with the issue of limitation
and decided the same in favour of the land-owners. The Judgment
relied upon by the counsel for appellants in the case of
“Bhagwan Das & Ors. vs. State of Uttar Pradesh” (supra)
decides the issue wherein the Hon’ble Apex Court has held that it
is not only the knowledge of award but the details of the award
being given to the land-owners, which is mandatory for
determining the starting point of period of limitation. The Hon’ble
Apex Court has held as under:-
“18. Clause (b) of the proviso to Section 18 requires a person
interested who has not accepted the award, to make an
application to the Collector requiring him to refer the matter for
determination of the court, within six weeks of the receipt of the
notice from the Collector under Section 12(2) or within six
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[2026:RJ-JD:18630] (23 of 28) [CMA-1681/2007]first expires, if he or his representative was not present before
the Collector at the time of making of the award.
19. The reason for providing six months from the date of the
award for making an application seeking reference, where the
applicant did not receive a notice under Section 12(2) of the Act,
while providing only six weeks from the date of receipt of notice
under Section 12(2) of the Act for making an application for
reference where the applicant has received a notice under Section
12(2) of the Act is obvious. When a notice under Section 12(2) of
the Act is received, the landowner or person interested is made
aware of all relevant particulars of the award which enables him
to decide whether he should seek reference or not. On the other
hand, if he only comes to know that an award has been made, he
would require further time to make enquiries or secure copies so
that he can ascertain the relevant particulars of the award.
20. The term “date of the Collector’s award” occurring in clause
(b) of the proviso, has been interpreted by this Court in several
cases. We may refer to a few of them.
21. In Harish Chandra Raj Singh v. Land Acquisition Officer this
Court held : [AIR pp. 1503-04, paras 5-6]“5. … Therefore, if the award made by the Collector is in law
no more than an offer made on behalf of the Government to
the owner of the property then the making of the award as
properly understood must involve the communication of the
offer to the party concerned. That is the normal requirement
under the contract law and its applicability to cases of award
made under the Act cannot be reasonably excluded. Thus
considered the date of the award cannot be determined
solely by reference to the time when the award is signed by
the Collector or delivered by him in his office; it must involve
the consideration of the question as to when it was known to
the party concerned either actuallyor constructively. If that
be the true position then the literal and mechanical
construction of the words ‘the date of the award’ occurring in
the relevant section would not be appropriate.
6. There is yet another point which leads to the same
conclusion. If the award is treated as an administrative
decision taken by the Collector in the matter of the valuation
of the property sought to be acquired it is clear that the said
decision ultimately affects the rights of the owner of the
property and in that sense, like all decisions which affect
persons, it is essentially fair and just that the said decision
should be communicated to the said party. The knowledge of
the party affected by such a decision, either actual or
constructive, is an essential element which must be satisfied
before the decision can be brought into force. Thus
considered the making of the award cannot consist merely in
the physical act of writing the award or signing it or even
filing it in the Office of the Collector; it must involve the
communication of the said award to the party concerned
either actually or constructively. If the award is pronounced
in the presence of the party whose rights are affected by it it
can be said to be made when pronounced. If the date for the
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[2026:RJ-JD:18630] (24 of 28) [CMA-1681/2007]and it is accordingly pronounced on the date previously
announced the award is said to be communicated to the said
party even if the said party is not actually present on the
date of its pronouncement. Similarly if without notice of the
date of its pronouncement an award is pronounced and a
party is not present the award can be said to be made when
it is communicated to the party later. The knowledge of the
party affected by the award, either actual or constructive,
being an essential requirement of fair play and natural
justice the expression ‘the date of the award’ used in the
proviso must mean the date when the award is either
communicated to the party or is known by him either
actually or constructively. In our opinion, therefore, it would
be unreasonable to construe the words ‘from the date of the
Collector’s award’ used in the proviso to Section 18 in a
literal or mechanical way.”
22. In State of Punjab v. Qaisar Jehan Begum [AIR 1963 SC
1604] this Court reiterated the principles stated in Harish
Chandra Raj Singh [AIR 1961 SC 1500] and further held as
follows: (Qaisar Jehan Begum case [AIR 1963 SC 1604] , AIR p.
1607, para 5)
“5. … It seems clear to us that the ratio of the decision in
Harish Chandra case [AIR 1961 SC 1500] is that the party
affected by the award must know it, actually or
constructively, and the period of six months will run from the
date of that knowledge. Now, knowledge of the award does
not mean a mere knowledge of the fact that an award has
been made. The knowledge must relate to the essential
contents of the award. These contents may be known either
actually or constructively. If the award is communicated to a
party under Section 12(2) of the Act, the party must be
obviously fixed with knowledge of the contents of the award
whether he reads it or not. Similarly when a party is present
in court either personally or through his representative when
the award is made by the Collector, it must be presumed
that he knows the contents of the award. Having regard to
the scheme of the Act we think that knowledge of the award
must mean knowledge of the essential contents of the
award.”
23. In Parsottambhai Maganbhai Patel v. State of Gujarat
[(2005) 7 SCC 431] and in SAIL v. SUTNI Sangam [(2009) 16
SCC 1] the aforesaid principles were followed and reiterated by
this Court.
24. When land is acquired and an award is made under Section
11 of the Act, the Collector becomes entitled to take possession
of the acquired land. The award being only an offer on behalf of
the Government, there is always a tendency on the part of the
Collector to be conservative in making the award, which results in
less than the market value being offered.
25. Invariably, the land-loser is required to make an application
under Section 18 of the Act to get the market value as
compensation. The land-loser does not get a right to seek
reference to the civil court unless the award is made. This means
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[2026:RJ-JD:18630] (25 of 28) [CMA-1681/2007]
that he can make an application seeking reference only when he
knows that an award has been made.
26. If the words six months from the “date of the Collector’s
award” should be literally interpreted as referring to the date of
the award and not the date of knowledge of the award, it will lead
to unjust and absurd results. For example, the Collector may
choose to make an award but not to issue any notice under
Section 12(2) of the Act, either due to negligence or oversight or
due to any ulterior reasons. Or he may send a notice but may not
bother to ensure that it is served on the landowner as required
under Section 45 of the Act. If the words “date of the Collector’s
award” are literally interpreted, the effect would be that on the
expiry of six months from the date of award, even though the
claimant had no notice of the award, he would lose the right to
seek a reference. That will lead to arbitrary and unreasonable
discrimination between those who are notified of the award and
those who are not notified of the award.
27. Unless the procedure under the Act is fair, reasonable and
non-discriminatory, it will run the risk of being branded as being
violative of Article 14 as also Article 300-A of the Constitution of
India. To avoid such consequences, the words “date of the
Collector’s award” occurring in proviso (b) to Section 18 requires
to be read as referring to the date of knowledge of the essential
contents of the award, and not the actual date of the Collector’s
award.
28. The following position therefore emerges from the
interpretation of the proviso to Section 18 of the Act:
(i) If the award is made in the presence of the person interested
(or his authorised representative), he has to make the application
within six weeks from the date of the Collector’s award itself.
(ii) If the award is not made in the presence of the person
interested (or his authorised representative), he has to make the
application seeking reference within six weeks of the receipt of
the notice from the Collector under Section 12(2).
(iii) If the person interested (or his representative) was not
present when the award is made, and if he does not receive the
notice under Section 12(2) from the Collector, he has to make
the application within six months of the date on which he actually
or constructively came to know about the contents of the award.
(iv) If a person interested receives a notice under Section 12(2)
of the Act, after the expiry of six weeks from the date of receipt
of such notice, he cannot claim the benefit of the provision for six
months for making the application on the ground that the date of
receipt of notice under Section 12(2) of the Act was the date of
knowledge of the contents of the award.
29. A person who fails to make an application for reference within
the time prescribed is not without remedy. It is open to him to
make an application under Section 28-A of the Act, on the basis
of an award of the court in respect of the other lands covered by
the same acquisition notification, if there is an increase. Be that
as it may.
30. When a person interested makes an application for reference
seeking the benefit of six months’ period from the date of
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[2026:RJ-JD:18630] (26 of 28) [CMA-1681/2007]
knowledge, the initial onus is on him to prove that he (or his
representative) was not present when the award was made, that
he did not receive any notice under Section 12(2) of the Act, and
that he did not have the knowledge of the contents of the award
during a period of six months prior to the filing the application for
reference. This onus is discharged by asserting these facts on
oath. He is not expected to prove the negative. Once the initial
onus is discharged by the claimant/person interested, it is for the
Land Acquisition Collector to establish that the person interested
was present either in person or through his representative when
the award was made, or that he had received a notice under
Section 12(2) of the Act, or that he had knowledge of the
contents of the award.
31. Actual or constructive knowledge of the contents of the
award can be established by the Collector by proving that the
person interested had received or drawn the compensation
amount for the acquired land, or had attested the
mahazar/panchnama/proceedings delivering possession of the
acquired land in pursuance of the acquisition, or had filed a case
challenging the award or had acknowledged the making of the
award in any document or in statement on oath or evidence. The
person interested, not being in possession of the acquired land
and the name of the State or its transferee being entered in the
revenue municipal records coupled with delay, can also lead to an
inference of constructive knowledge. In the absence of any such
evidence by the Collector, the claim of the person interested that
he did not have knowledge earlier will be accepted, unless there
are compelling circumstances not to do so.”
32. The issue is no longer res integra in view of the authoritative
judgment given by the Hon’ble Apex Court as well as the language
of the provisions of Section 18(2) of the Act of 1894. In the
present case, thus, the reference was rightly filed within the
period of limitation and though has not been elaboratedly dealt
with by the Reference Court, however, perusal of the record as
well as filing of reference by the respondents themselves and
raising of objection with regard to payment of compensation to
the land-owners, as also considering the fact that no notice under
Section 12(2) of the Act of 1894 was given nor any pleadings have
been made in this regard, the Reference Court has rightly treated
the reference within the period of limitation.
Issue No.4:-
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[2026:RJ-JD:18630] (27 of 28) [CMA-1681/2007]
33. As far as the issue of solatium is concerned, firstly the
language of the amendment under Section 23 of the Act of 1894
itself is clear to show that the amendment has been given limited
effect retrospectivity and even otherwise, the issue is no longer
res integra in view of the judgment passed by the Hon’ble Apex
Court in the case of “Bhag Singh vs. Union Territory of
Chandigarh (supra)” as well as the judgment passed by the
Hon’ble Apex Court in the case of “Panna Lal Ghosh (supra)”
wherein it has been held that the said amendment would apply
even to pending appeals. In the present case, admittedly, the
proposed award was passed in the year 1986 and prior to that the
amendment had came into force in the year 1984, itself providing
for 30% solatium as well as additional 12% per annum payment
as interest. In view of the same, the order dated 13.09.2004
passed by the Reference Court cannot be faulted with to the
extent of award of solatium and interest is concerned.
Conclusion:-
34. In view of the findings given, qua the issues in hand, the
order dated 13.09.2004 passed by the Reference Court is not
disturbed to the extent of awarding solatium and interest.
However, as far as the valuation of the land is concerned, the
finding given on issue No.1, by the Reference Court, is quashed
and set aside. Respondent – Samiti is directed to make the
payment of compensation to the appellants while calculating the
valuation of land at the rate of Rs.26,660/- per bigha and not
Rs.10,453/- per bigha within a period of three months from the
date of passing of this order. The land-owners shall additionally be
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[2026:RJ-JD:18630] (28 of 28) [CMA-1681/2007]
entitled for interest at the rate of 9% per annum from the date of
proposed award i.e. 28.07.1986 upon the difference of amount of
the valuation of land so determined and the amount determined
earlier, and at the rate of 12% per annum from today till the date
of actual payment. The appeals filed by the respondent- Samiti
being S.B. Miscellaneous Appeal Nos.399/2006, 670/2006 and
1672/2006 being devoid of merits are dismissed. Appeals filed by
land-owners being S.B. Civil Miscellaneous Appeal Nos.
1681/2007, 678/2006 and 297/2006 are allowed in above-
mentioned terms.
35. The record of the Courts below be sent back forthwith.
36. All pending applications, if any, shall stand disposed of.
37. No order as to cost.
(SANDEEP SHAH),J
14-19-charul/-
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