R.M.S. Khandeparkar, J.
1. Heard at length the learned advocates for the parties. Perused the records as well as written submissions. We have also gone through the various statutory provisions referred to in the course of arguments as also all the decisions relied upon by the learned advocates in their oral as well as written submissions.
2. The appeal and the cross appeal arise from the award dated 23rd June, 1993 passed by the Reference Court of Raigad at Alibag in the Land Acquisition Reference No. 184 of 1986 which is a common award by which the Reference Court has disposed of 79 land acquisition reference cases. The appellants in First Appeal No. 455 of 1994 are the respondents in First Appeal No. 741 of 1995 and are hereinafter called as "the Government", and the appellants in First Appeal No. 741 of 1995 are the respondents in First Appeal No. 455 of 1994 and are hereinafter called as "the claimants".
3. The land acquisition proceedings under the Land Acquisition Act, 1894, hereinafter called as "the said Act", commenced with the publication of notification dated 3rd February, 1970 under Section 4 of the said Act followed by a declaration under Section 6 issued in the month of May, 1972. However, the said notification and the declaration were cancelled on 26th February, 1973 and fresh notification under Section 4 of the said Act came to be issued on 26th February, 1973 followed by declaration under Section 6 thereof on 11th December, 1975, proposing to acquire "all leasehold and other outstanding interests in the lands owned by the Central and the State Governments specified in the schedule appended to the said notification and which were occupied and used for manufacture of salt". The land referred to in the notification and the declaration bears Survey No. 205 and admeasurs 67 acres, 25 gunthas and 12 ares and is situated in the village Sheva, Taluka - Uran, District - Raigad. The notice under Section 9 of the said Act came to be issued on 31st October, 1983 which was replied by the claimants on 21st November, 1983. The award under Section 11 of the said Act came to be declared on 29th September, 1984 whereby the claimants were held to be not entitled for any compensation since the owner of the land in question is the Union of India. Meanwhile, the some of the claimants had filed Civil Suit No. 54 of 1984 against the Union of India and the State of Maharashtra in the District Court, Alibag, for a declaration that the claimants were the owners of the land and for injunction. Consequent to the declaration of award, the claimants preferred a reference application under Section 18 of the said Act on 12th November, 1984 which was registered as the Land Acquisition Reference No. 184 No. 1986. Meanwhile, on 9th October, 1984, the claimants had filed Writ Petition No. 4283 of 1984 challenging the notification and the award. The said writ petition was rejected on 5th/6th August, 1985. The Special Leave Petition No. 12620 of 1985 against the said order of dismissal of the writ petition was also dismissed by the Apex Court on 9th December, 1985. Thereafter, by an order dated 25th March, 1987, the reference court rejected the application for joinder of salt department of the Government of India as the party to the land acquisition proceedings. The same was challenged in the Writ Petition No. 2875 of 1987 which petition came to be disposed of by a consent order on 21st August, 1987 by which the Union of India was added as the party to the reference proceedings. By the common award dated 23rd June, 1993, the reference court held the claimants to be the owners of the land and granted compensation at the rate of Rs. 15,000/- per acre and Rs. 5,000/-per acre as the cost of construction along with the other statutory benefits. The matter came up in appeal before this Court filed by both the parties, i.e. by the claimants for enhancement of compensation and by the Government for quashing the award. On 26th July, 1994, an application was made for joinder of JNPT as the party to the proceedings in appeal. In the appeal, this Court granted stay of execution of the proceedings subject to the condition of depositing the entire amount of compensation awarded by the reference court. The said order was sought to be challenged in the Supreme Court by way of Special Leave Petition which came to be disposed of on 27th July, 1995 whereby the State Government was directed to deposit 1/4th of the amounts awarded by the reference court within three months and the claimants were permitted to withdraw the same against the security and at the same time, the JNPT was ordered to be impleaded as the party to the proceedings. The appeals before this High Court were disposed of by the common judgment dated 9th, 10th and 11th September, 1996 thereby holding that the ownership of land vested with the Union of India, however, the claimants to be given compensation on account of their occupation for long time and it was fixed at Rs. 12,000/- per acre in addition to Rs. 5,000/-per acre as cost of construction along with other statutory benefits. The matters were carried in appeal to the Apex Court which were disposed of by the order dated 14th February, 2002 setting aside the judgment of our High Court with direction to decide each matter separately in accordance with the law, while leaving the questions of law open to be raised by either parties. The review petition filed by the Government in relation to the said order of the Apex Court was rejected on 20th August, 2002.
4. It is the case of the claimants that the land in question is owned by the claimants and it does not belong to the Government. It is further their case that the claim of ownership was specifically made by them under the reply dated 21st as well as 25th November, 1983 and the contents of the said replies were sought to be made as part of the pleadings in the reference proceedings. The Village Extract No. VI discloses the claimants to be owners of the land and Jamin Kharda maintained by the Government supports their claim of ownership. It is their further case that the claimants had been carrying on business of salt manufacturing on the land in question for number of years and they were getting annual income of Rs. 1,00,000/-from the said land. The claimants and their predecessors had invested their funds for utilising the said land for the said business and the construction on the said land is sought to be valued at Rs. 50,000/-. The claimants, therefore, claim compensation of Rs. 1,53,09,016.72ps. It is their further case that the levy of ground rent does not make the Government to be the owner of the land. The salt manufacturing work was a private salt work carried out in their own land subject to the licence and other regulations applicable thereto. The owners of the salt work on the Government land were charged with assignment fee i.e. lease amount, and the owners of the salt work on their own land i.e. private land not owned by Government were not charged with such assignment fee or the lease amount. It is their further case that 7/12 extracts cannot be considered for deciding ownership of the land and relevant documents are the Village Extract No. VI, and Jamin Kharda which clearly disclosed the claimants to be owners of the land in question.
5. In the statement of claim before the reference court, the claimants had sought to reproduce their replies dated 21st and 25th November, 1983 in the pleadings before the Reference Court. In the reply dated 21st November, 1983, the claimants had specifically claimed that the land in question is an ancestral property of the claimants since more than 100 years and they are having their factory for manufacture of salt and the factory was being conducted in the said land since 1882. For the purpose of commencement and continuation of the said factory large amounts were spent to make the lands suitable for the said user and every year they were spending about Rs. 40,000/- to Rs. 50,000/- to keep the land in the condition suitable for salt manufacture. They had claimed the amount of Rs. 1,09,49,423/-for the land admeasuring 2,73,735.58 sq.meters at the rate of Rs. 40/- per sq.meter, besides Rs. 50,000/- for the value of structure, and Rs. 20,00,000/- for loss of business, and Rs. 1,80,000/- as compensation to the employees of the claimants, totalling to Rs. 1,31,79,423/-in addition to 15% solatium to the extent of Rs. 19,76,913.40 ps., and therefore, had claimed total compensation of Rs. 1,51,56,336.40ps. In reply dated 25th November, 1983, the claimants modified their claim regarding quantum of compensation and claimed the total amount of Rs. 1,53,09,016.72 ps. only.
6. On the other hand, it is the case on behalf of the Government that the ownership of the land in question vests in the Union of India and the same is revealed from the various statutory provisions, government resolutions issued from time to time, rules and regulations framed by the Government as well as the provisions in the Constitution of India and the Land Revenue Code. It was further case of the Government that the claimants were mere licensees and the licence was granted to the claimants for manufacture of salt and they were paying ground rent for the use of the land for manufacture of salt. The acquisition proceedings only related to the leasehold or other outstanding interests in the land and not to the ownership of land. The issue of ownership of land is, therefore, outside the scope of inquiry under Section 18 of the said Act in the facts and circumstances of the case. The licence granted in favour of the claimants after expiry thereof was renewed later on to remain in force till disposal of the Writ Petition filed by the claimants or till the completion of the land acquisition proceedings, whichever was earlier.
7. The records disclose that a rejoinder had been filed by the claimants in January, 1988 before the Reference Court. However, records nowhere disclose any amendment to the pleadings by the claimants. No contention is raised that the rejoinder should be treated as forming part of the pleadings, and rightly so, because the same cannot form part of the pleadings.
8. The Reference Court framed the following issues for trial:
(i) Whether the claimants prove that the amount of compensation granted by the Opponent is inadequate, improper and not as per the Sales Statistics in view of the situation location of the acquired land
(ii) Are the claimants entitled to claim enhanced compensation If yes, what quantum
(iii) What order and award
(iv) Whether the claimants prove ownership over the disputed land
(v) Whether the claimants prove that they are entitled for compensation on any other grounds as pleaded
9. The claimants examined four witnesses before the Reference Court, namely, (1) Mohammed Asgar, AW-1, (2) Sarfuddin, AW-2, (3) Jeevan Kulkarni, AW-3, and (4) Nathuram Deshmukh, AW-4. As far as the Government is concerned, no witness was examined, though various statutory provisions were placed on record and sought to be relied upon before the Reference Court.
10. In the award dated 23rd June, 1993, the Reference Court arrived at the finding that the claimants have established their title to the land by documentary evidence in the form of sale deeds and other documents but the Government failed to produce any documentary evidence. The case of the Government is based solely on the statutory provisions. However, the Government failed to establish the same. The claimants are Shilotris, and therefore, have ownership right to the suit land. The Jamin Kharda is the record of rights and discloses the claimants to be the owners of the land and the land to be the private land. Licence Register and the Building Register maintained by the salt department disclose the claimants to be the owners of the land. The ground rent paid by the claimants is the land revenue and not the rent paid by the Lessee to the Lessor. The Government Resolution No. 5186 dated 12th July, 1887 and the Salt Manual disclose the ownership of the claimants in relation to the suit land.
11. The impugned award is sought to be challenged on various grounds by both the parties. As far as the Government is concerned, the challenge firstly relates to the absence of jurisdiction to the reference court to deal with the issue of ownership of the land in the absence of the same being subject matter of acquisition and secondly that the claimants have failed to establish any right to claim as well as the quantification of compensation. What has been acquired is the leasehold and other outstanding interests in the land described under the notification and declaration issued under the said Act. The challenge is also to the fixation of market value as well as the order relating to the grant of compensation. On the other hand, the challenge by the claimants relates to the inadequacy of the compensation. The matter, therefore, gives rise to the following points for determination:
(a) What was the subject matter of Reference under Section 18 of the said Act and consequently what was the scope of inquiry thereunder
(b) Whether the reference court erred in considering the issue of ownership of land in the facts and circumstances of the case
(c) Whether the claimants are the owners of any right in or to the land in question
(d) Whether the claimants are entitled for the compensation as awarded or otherwise
12. The government has sought to challenge the impugned award as being without jurisdiction, in the sense that the same is beyond the scope of inquiry under Section 18 of the said Act. It is sought to be contended on behalf of the Government that the subject matter of acquisition was merely the leasehold and other outstanding interests in the land and not the ownership of land as such and that the same is clear from the notification under Section 4 and the declaration under Section 6 of the said Act. Being so, the Reference Court could not have travelled beyond the scope of the land acquisition proceedings and could not have decided the issue of ownership and title to the land.
13. The learned Counsel appearing for the JNPT and the government have submitted that when the Government itself is the owner of the land, there cannot be any question of its acquisition and the provisions of the said Act are not attracted to such land except so far as the acquisition has proceeded to eliminate "other interest" existing in favour of any other person in such land. In the case in hand, since the acquisition was of limited interest i.e. leasehold and other outstanding interests, other than the ownership right, the reference court could not have proceeded to hold that the claimants were the owners as against the ownership right of the Government in the land. The acquisition in the case in hand is of limited interest, and therefore, the reference could not have travelled beyond the scope of what was sought to be acquired. The proceedings which the claimants can initiate under Section 18 of the said Act are always restricted to the subject matter of acquisition proceedings. In the case in hand, the subject matter of acquisition was leasehold interest or other interest of the claimants in the land in question and did not include the claim of ownership to the land.
14. The learned Counsel appearing for the claimants, on the other hand, submitted that in the case in hand, the Appropriate Government is the State Government which is apparent from the notification issued under Section 4 and the declaration issued under Section 6 of the said Act and the claim of ownership of land is by the Central Government and therefore, under no stretch of imagination, there was any bar for the reference court to deal with the issue of title in relation to the land in question. It is their further case that the said Act is a complete Code by itself and all the issues arising in the land acquisition proceedings can be adjudicated upon before the reference court. It is also their case that the objection to the jurisdiction of the reference court to deal with the issue of title is raised by JNPT and not by the Central Government which claims the ownership of the land. It is therefore their case that the JNPT has no locus standi to raise the said issue. In any case, it is their contention that the order of the Apex Court remanding the matter clearly specified that the reference Court had to decide all issues including the issue regarding the ownership claim and this is apparent from the observation therein that "the question whether the petitioners are owners of any right in the property and, if so, to what compensation, if any, are they entitled, are the questions open for determination in the reference preferred by them". According to the learned Counsel for the respondents, therefore, it is not open for the JNPT or the Government to raise objection at this stage and even otherwise, this Court is bound by the said order of the Apex Court.
15. The objection to the jurisdiction of the reference court to deal with the aspect of ownership issue is essentially based on the law laid down by the Apex Court in Sharda Devi v. State of Bihar and Anr. and Shyamali Das v. Illa Chowdhry and Ors. . The counsels for the parties have sought to rely upon the following decisions in support of rival contentions on this issue. Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors. , Dr. G.H. Grant v. The State of Bihar , The Government of Bombay v. Esufali Salebhai reported in 1909 Vol. XII Bom.LR 34, Laxmi Chand and Ors. v. Gram Panchayat, Kararia and Ors. , The Special Land Acquisition and Rehabilitation Officer, Sagar v. M.S. Seshagiri Rao and Anr. , The Deputy Collector, Calicut Division v. Aiyavu Pillay and Ors. reported in IX Indian Cases 341 (Madras High Court), Makhan Lal and Ors. v. Secretary of State , State of A.P. v. V. Sarma Rao and Ors. , and Kiran Tandon v. Allahabad Development Authority and Anr. , Tinsukla Development Corporation Ltd. v. State of Assam and Anr. reported in AIR 1961 Assam 133, Balaram Chandra v. State of U.P. , Sudhansu Sekhar Maity and Ors. v. State of West Bengal and Ors. State of Bombay v. Ali Gulshan , Meher Rusi Dalal v. Union of India and Ors. and Mr. Nusli N. Wadia and Ors. v. The State of Maharashtra and Ors. .
16. At the outset, the contention that the point about absence of jurisdiction to the reference court to deal with the issue of ownership claim has been raised for the first time by JNPT and not by the Government is to be rejected as being totally devoid of substance. The point has been raised by the Government also, and not only in appeal but was raised even before the reference court. Besides, the point raised goes to the root of the matter and relates to the jurisdiction of the reference court to deal with the issue in the undisputed facts and circumstances of the case.
17. The Apex Court in Sharda Devi's case (supra), after taking into consideration the scheme of the said Act, held that:
The power to acquire by the State the land owned by its subjects hails from the right of eminent domain vesting in the State which is essentially an attribute of sovereign power of the State. So long as the public purpose subsists, the exercise of the power by the State to acquire the land of its subjects without regard to the wishes or willingness of the owner of person interested in the land cannot be questioned.
While ruling as above, the Apex Court has made reference to two of its earlier decisions namely Scindia Employees' Union v. State of Maharashtra , and State of Maharashtra v. Sant Joginder Singh Kishan Singh (1995) Supp (2) SCC 475. Having ruled as above, the Apex Court further observed that:
The State does not acquire its own land for it is futile to exercise the power of eminent domain for acquiring rights in the land, which already vests in the State. It would be absurdity to comprehend the provisions of the Land Acquisition Act being applicable to such land wherein the ownership or the entirety of rights already vest in the State. In other words, the land owned by the State on which there are no private rights or encumbrances is beyond the purview of the provisions of the Land Acquisition Act. The position of law is so clear as does not stand in need of any authority for support.
The above ruling in Sharda Devi's case (supra) clearly reiterates the earlier decision of the Apex Court in Nusserwanji's case (supra). In the Nusserwanji's case (supra) the Apex Court had held that "if the Government has itself an interest in the land, it has only to acquire the other interests outstanding thereof so that it might be in a position to pass it on absolutely for public user", and further that "when Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition.
And ultimately, the law on the point was summed up as under:
To sum up, the State is not a "person interested" as defined in Section 3(b) of the Act. It is not a party to the proceedings before the Collector in the sense, which the expression "parties to the litigation" carries. The Collector holds the proceedings and makes an award as a representative of the State Government. Land or an interest in land pre-owned by the State cannot be the subject-matter of acquisition by the State. The question of deciding the ownership of the State or holding of any interest by the State Government in proceedings before the Collector cannot arise in the proceedings before the Collector [as defined in Section 3(c) of the Act]. If it was government land there was no question of initiating the proceedings for acquisition at all. The Government would not acquire the land, which already vests in it. A dispute as to the pre-existing right or interest of the State Government in the property sought to be acquired is not a dispute capable of being adjudicated upon or referred to the civil court for determination either under Section 18 or Section 30 of the Act.
18. In the Nusserwanji's case (supra), the Apex Court while referring to the decision of this High Court in the matter of Esufali Salebhai's case (supra) wherein it was held that the Government is not debarred "from acquiring and paying for the only outstanding interest merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compensation based upon the market value of the whole land, must be distributed among the claimants", observed that in the Esufali Salebhai's case (supra) the Government had claimed ownership of the land on which there stood buildings belonging to the claimants, and it was held that the Government was bound to acquire and pay only for the superstructure, as it was already the owner of the site.
19. In Esufali Salebhai's case (supra), this Court had held that the word 'land' in Section 3(a) of the said Act shows that the legislature intended to lump together in one single expression "land" several things or particulars, such as the soil, the buildings on it, any charges on it, and other interests in it, all which have a separate existence and are capable of being dealt with either in a mass or separately as the exigencies of each case arising under the Act may require. It was further held that "it is quite true that there can be no such thing as the compulsory acquisition of land, owned by and in occupation and control of the Crown. The Land Acquisition Act cannot apply to such lands, because all Crown lands being vested in the government, they are competent and free to devote any of those lands to a public purpose. It is a contradiction in terms to say that the government are compulsorily acquiring that which they have already acquired otherwise, both as to title and possession."
20. Nusserwanji's case (supra) made reference to yet another decision, and with approval and that was to Aiyavu Pillay's case (supra) wherein it was held by the Madras High Court that "it is, in my opinion, clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired under the Act but only for the acquisition of such interests in the land as do not already belong to Government.
21. The decision in Nussarwanji's case (supra) was reiterated by the Apex Court again in Brij Behari Sahai (Dead) Through LRs. and Ors. v. State of U.P. . It was clearly held that in Nussarwanji's case (supra), it was observed that "when the Government acquires lands under the provisions of the Land Acquisition Act, the Government acquires the sum total of all private interest subsisting in them to put them to a public purpose and that if the Government has itself an interest in the land it has to only acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user. Approval was also accorded to the view that the Land Acquisition Act does not contemplate or provide for the acquisition of any interest which already belongs to the Government in land which is being acquired under the Act, but only for the acquisition of such interests in the land as do not already belong to the Government, since there can be no acquisition by the Government of what already was its own." It was also ruled therein that under the scheme of the Act, it is the interests of the occupants which are ascertained and valued, and the Government is directed to pay the compensation fixed for them, and there is no valuation of the right of the Government to levy assessment on the lands and there is no award of compensation therefor. Under the Land Acquisition Act what is acquired is only the ownership over the lands or the inferior rights comprised therein and that the Government is not a person interested within the meaning of Section 3(b).
22. In Brij Behari Sahai's case (supra) the Apex Court had also referred with approval to its earlier decision in Dr. G.H. Grant's case (supra) wherein it was held that:
The Collector is not authorized to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have appeared before him.
23. In Meher Rusi Dalal's case (supra) the Apex Court clearly reiterated the decision in Sharda Devi's case (supra). In Balaram Chandra's case (supra), the Apex Court clearly ruled that the reference court cannot go behind the reference and give declaration that the notification under Section 4(1) and declaration under Section 6 of the said Act are null and void and illegal and that duty and power of the reference court are confined vis-a-vis the provisions contained under Sections 11, 18 and 20 to 23. It cannot traverse beyond its jurisdiction which is circumscribed under the provisions of the said Act.
24. The Apex Court in Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran and Anr. had held that the reference Court gets jurisdiction only if the matter is referred to it under Section 18 or 30 of the said Act by the Land Acquisition Officer and that Civil Court has got the jurisdiction and authority only to decide the objections referred to it and the reference Court cannot widen the scope of its jurisdiction or decide matters which are not referred to it. In State of Bihar and Anr. v. Kundan Singh and Anr. , it was held that the scope of the inquiry under Section 18(1) of the said Act is specifically indicated by the section itself and the objection which the Court can consider on a reference made to it under Section 18 may be either in respect of the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of compensation among different persons, and in dealing with the question about the amount of compensation, the Court may have to take into account the matters specified in Sections 23 and 24 of the said Act.
25. The Apex Court in Mohammed Hasnuddin's case (supra) held that "every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction and whether the jurisdiction of such tribunal is dependent on the existence of certain facts or circumstances. Its obvious duty is to see that these facts and circumstances exist to invest it with jurisdiction, and where a tribunal derives its jurisdiction from the statute that creates it and that statute also defines the conditions under which the tribunal can function, before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen". It was further held that in deciding the question of jurisdiction in a case of reference under Section 18 by the Collector to the court, the court is certainly not acting as a court of appeal, but it only discharges the elementary duty of satisfying itself that a reference which it is called upon to decide is a valid and proper reference according to the provisions of the Act under which it is made and that is a basic and preliminary duty which no tribunal can possibly avoid. This decision also is of no help to the claimant in canvassing their case.
26. In Shyamali Das's case (supra) the Apex Court held that the said Act is a complete code by itself and it provides for remedies not only to those whose lands have been acquired but also those who claim the awarded amount or any apportionment thereof. A Land Acquisition Judge derives its jurisdiction from the order of reference and it is bound thereby. Its jurisdiction is to determine adequacy or otherwise of the amount of compensation paid under the award made by the Collector. It is not within its domain to entertain any application of pro interesee suo or in the nature thereof. The decision is a complete answer to the contention sought to be raised on behalf of the claimants.
27. Evidently, therefore, the scope of inquiry in the reference proceedings under Section 18 of the said Act would depend upon the subject matter of acquisition. If the acquisition is related to the limited rights in the land without any reference to the ownership right in the property, certainly the question of dealing with the ownership issue to ascertain compensation on that count would not arise in the reference proceedings under Section 18 of the said Act. The reference under Section 18 of the said Act is essentially on account of dissatisfaction of the claimants about the award given by the Land Acquisition Officer. If the award does not relate to the subject of ownership of the land on the ground that the same has not been the subject matter of acquisition, the question of Reference Court going into the issue of title would not arise. It may be a different case where the subject matter of acquisition also includes ownership of land and the Land Acquisition Officer on account of lack of evidence on the part of the claimants to establish their right of ownership refuses to award any compensation on such claim. In such a case certainly the issue of ownership could be subject matter of reference. In a case where the notification under Section 4 and the declaration under Section 6 of the said Act do not include the subject matter of ownership of land, the question of Reference Court going into the said issue would not arise.
28. For the purpose of acquisition under the said Act, the term "land" has to be understood either in its entirety which would include all the interests in it or of some of the interests therein, depending upon the facts of each case. The land which already belongs to the Government cannot be a subject matter of acquisition under the said Act. Consequently, the land, wherein the government has subsisting ownership interest, though can also be subjected to acquisition proceedings, but to the extent of "other interest" existing in favour of 'others' who could be the "interested persons" within the meaning of the said expression under the said Act. It is pertinent to note that the term "Government" is not used in a restricted sense of referring it only to the Government which commences the acquisition proceedings under the said Act. In other words, irrespective of the fact whether the land belongs to the Central Government or the State Government, once it is the Government land, the same to the extent of ownership right, cannot be subject matter of acquisition under the said Act.
29. The learned Counsel appearing for the claimants however has sought to make differentiation between the land belonging to the Central Government and one belonging to the State Government while dealing with the aspect of need of initiating proceedings for acquisition of land for public purposes under the said Act and in that regard, attention was drawn to the definition of the expression "Appropriate Government" under Section 3(ee). The contention of the learned Counsel for the claimants is that the acquisition proceedings commences by a notification under Section 4 issued by the "Appropriate Government" and not by any "Government". Undoubtedly, Section 4(1) of the said Act clearly provides that the notification under the said Section has to be issued only when the Appropriate Government needs a particular land for a public purpose.
30. The term "Appropriate Government" has been defined in Section 3(ee) of the said Act to mean that in relation to the acquisition of land for the purpose of Union, Central Government and in relation to acquisition of land for other purposes the State Government. The definition of the "Appropriate Government" in Section 3(ee) nowhere relates to the ownership of land. It relates to the "purpose" for which the acquisition is sought to be made. When the land is sought to be acquired for the purpose of Union, in those cases the Appropriate Government to take initial decision about the need of the land for public purpose will be the Central Government and in cases of any other purpose, the Appropriate Government to take decision in that regard would be the State Government. Being so, the Section 3(ee) of the said Act has no reference to the ownership of the land which is required to be acquired under the said Act, and hence, the said definition of the expression "Appropriate Government" can be of no help to the claimants to contend that once the land belongs to the Central Government then the State Government who initiates the acquisition proceedings by issuing notification under Section 4 of the said Act, the jurisdiction of the reference court would not be barred to deal with the issue of title of the property as the claim of ownership of land is by the Central Government and not by the Appropriate Government. Undoubtedly, the term "appropriate government" is used in the said Act referring to the government which commences and conducts the land acquisition proceedings under the said Act. It makes no difference as far as the issue of ownership of land as such. It is to be noted that though in relation to the procedure for acquisition of land under the said Act from the issuance of notification declaring intention to acquire the land till the approval of the award by the government, the term used is the "appropriate government", on conclusion of such proceedings, the end result of acquisition as provided under Section 16 is that the land so acquired "...thereupon vests absolutely in the Government.". The vesting of land acquired under the said Act is in the "government" and it is not specified as to whether it is in the State Government or Central Government, nor it is restricted to the appropriate government. The term 'government" has not been defined under the said Act. The General Clauses Act, 1897, Sec. 3(23) defines the term "government' to include both the Central Government and any State Government. Therefore, the ownership of land acquired or to be acquired can be either of the Central Government or any State Government, it does not make any difference. The arguments based on the said term "appropriate government" sought to be advanced are of no help to the claimants.
31. Referring to Sharda Devi's case (supra), it was sought to be contended on behalf of the claimants that the same is per incurium inasmuch as that it has proceeded to approve Mohammad Wajeeh Mirza v. Secretary of State for India in Council reported in AIR 1921 Oudh 31 as well as Esufali Salebhai's case (supra) when both the decisions are contrary to each other. The contention is totally devoid of substance. While Esufali Salebhai's case (supra) ruled that the Government is not barred from acquiring and paying for the only outstanding interest merely because the said Act, which primarily contemplates all interests as held outside Government, directs that the entire compensation based upon the market value of the whole land, must be distributed among the claimants, the decision in Mohammad Wajeeh Mirza's case (supra) was on the point that the question of title arising between the Government and other claimants cannot be settled by a Judge in a reference under Section 18 of the said Act.
32. In the case in hand, it is not in dispute that the notification and the declaration under Sections 4 and 6 respectively of the said Act were in relation to the leasehold and other limited interest in the land and not in relation to the ownership right in the land in question. Being so, there was no occasion either for the Land Acquisition Officer or for the Reference Court to deal with the aspect of title of the land or the issue of ownership of the land. Once the title of the property or ownership of the land is beyond the scope of the acquisition, one fails to understand how it can form subject matter of dispute before the reference court. The reference under Section 18 of the said Act, as it is well settled, can be only of the dispute pertaining to the subject matter of acquisition. In the case in hand, subject matter of acquisition being limited and restricted to the leasehold rights and other outstanding interests, other than ownership right in the land, neither the Collector had occasion to refer such issue for adjudication nor it was referred and for the same reasons also the reference court could not have exceeded its jurisdiction and assumed jurisdiction to deal with the issue of title of ownership of the property. The government, therefore, is justified in contending that the issue of ownership is beyond the scope of powers under Section 18 of the said Act in the facts and circumstances of the case in hand.
33. The claimants' counsel however has drawn our attention to the order of the Apex Court dated 9th December, 1985. The said order reads thus:
The Special Leave Petitions are dismissed, but we may observe that the question whether the petitioners are owners of any right in the property and, if so, to what compensation, if any, are they entitled, are the questions open to the determination in the references preferred by them. The Court disposing of the references will do so without being influenced or fettered by any observations made in these matters so far as those observations bear upon the questions to be decided by it.
34. Apparently, the said order left all the issues open to be decided by the reference court in accordance with the provisions of law. The observation which reads "the question whether the petitioners are owners of any right in the property", obviously meant that the reference court was required to determine all the questions which arose for decision in the reference proceedings including the question as to whether the claimants are the owners of any right in the property. Would it mean and include right of ownership of the land ? It is to be noted that the expression used in the order is "owners of any right" and not to the effect "owners of property". Both the expressions "owners of any right in the property" and "owners of the property" do not carry the one and the same meaning. While in the former case it would mean a claim of any right in the property, in the latter case, it would mean claim of ownership right in the property. The expression "ownership right" is different from the expression "owner of any right in the property". Being so, the order by itself nowhere directed to decide the issue of ownership of the property. On the contrary, the order specifically directed to consider the rights in the land. The rights may obviously include ownership right also. But it would depend upon the facts and circumstances of each case. When the law on the point is well settled to the effect that the scope of inquiry in a proceeding under Section 18 of the said Act is limited to the extent of subject matter of acquisition and it does not include the issue of ownership of the land when such an interest is not subjected to acquisition, the directions issued under the said order, under no stretch of imagination, can be construed to include the direction to the reference court for adjudication of the issue of ownership, as it would virtually amount to read the said order contrary to the law laid down by the Apex Court in Nassurwanji's case (supra), Seshagiri Rao's case and Dr.G.H.Grant's case (supra), which decisions were delivered much prior to the said order, and those were reiterated in Sharda Devi's, Brij Behari Sahai as well as in Shyamali Das's cases (supra).
35. At this stage, it is also necessary, and at the cost of repetition, to take note of certain facts and events which occurred after the order dated 9th December, 1985 (supra) of the Apex Court. Pursuant to the remand, the matter proceeded before the reference court and after disposal of the reference, the matter came up before this Court and those appeals were also disposed of and the matter was again carried before the Apex Court and while disposing those appeals by the order dated 14th February, 2002, it was held that since the High Court had not dealt with the cases individually and separately, the same were being sent back to the High Court for fresh decision. While remanding the matter, it was clearly observed that "We, therefore, set aside the order and judgment under challenge and send the cases back to the High Court to decide each matter separately in accordance with law, leaving the question of law open to be raised by either of the parties." (Emphasis supplied). In other words, the Apex Court has clearly held that all the questions of law are kept open to be decided by this Court in the appeals. The question of law would definitely include the point relating to the jurisdiction of the reference court to deal with the subject of ownership or title to the property more particularly in the undisputed facts and circumstances of the case, wherein the acquisition in terms of notification under Section 4 and the declaration under Section 6 of the said Act related only to leasehold and other outstanding rights in the property and not the ownership rights.
36. Referring to the observations in the order of this Court in the Writ Petition No. 4283 of 1984 dated 5th/6th August, 1985 wherein it was stated that "the claim made by the petitioners qua the ownership of the lands and compensation claimed on that count could be effectively agitated in the reference proceedings pending before the Civil Court", it is sought to be argued on behalf of the claimants that the reference court had no option but to decide the issue of ownership of the land. It is true that the said order of this Court did observe that the question of ownership of the land could be considered in the reference proceedings. In our considered opinion, however, the said expression cannot have the effect of amending the provisions of the Land Acquisition Act particularly comprised under Sections 18 to 28A which deal with the scope of inquiry in the reference proceedings pursuant to the application under Section 18 thereof, nor the same can override the decisions of the Apex Court in Nussarwanji's case (supra) as well as Dr.G.H.Grant's case (supra) and Sheshagiri Rao's case (supra), which were subsequently reiterated in Sharda Devi's case (supra) as well as Brij Behari Sahai's case (supra). Besides, the order of the High Court was substituted by the order of Apex Court dated 9th December, 1985, quoted above, which clearly directed the reference court to dispose of the matter without being influenced by any of the observations made in the matter.
37. Bare perusal of the notification which was issued under Section 4 and the declaration under Section 6 of the said Act clearly discloses that it was in relation to the leasehold and other outstanding interests of persons in the lands of Central and State Government bearing survey numbers specified in the schedule to the notification. Obviously, therefore, the notification clearly excluded the issue of ownership of the land as it already belonged to the Government and the acquisition was restricted to the leasehold and other outstanding interests of persons in such land. In these circumstances, therefore, the observation of the Apex Court in the order dated 9th December, 1985 to the effect that "the question whether the petitioners are owners of any right in the property" cannot be misconstrued to mean that the reference court was duty bound to deal with the issue of ownership of the land. The scope of reference was restricted to find out whether the claimants are owners of any right in the property meaning thereby whether the claimants have leasehold or other outstanding interests in the property, other than the ownership right. It should not be forgotten that the order of the Apex Court was passed in the proceedings arising out of the reference under Section 18 of the said Act.
38. Much stress was also sought to be laid on Section 9 notice and the provisions of Section 9(1) of the said Act. The Section 9(1) speaks of public notice to be issued inviting claims for compensation for all interests in the lands. Similarly, Sub-section (2) of Section 9 requires individual notices requiring them to disclose their claim in respect of all types of interests. It is the contention on behalf of the claimants that all types of interests would mean the interest of ownership. There can hardly be any quarrel about this proposition. However, whether in a given case such interest would also mean the interest of ownership or not will depend upon the facts of that case. As it does not prohibit the Government to acquire limited interest in the land already belonging to the Government, in such cases the question of entertaining the claim of ownership by interested persons could not arise at all. The interested persons in such cases cannot enlarge the scope of jurisdiction of the reference court under the said Act. Such interested persons cannot seek adjudication of their claim of ownership right in the land in such proceedings because the scope of adjudication depends upon the subject matter of acquisition. The provisions of Section 9 notice and the notice issued thereunder therefore are of no help to the claimants to contend that the jurisdiction of the reference Court in the case in hand would extend to decide the issue of ownership of land. Query in the notice under Section 9 as to what is the interest that is claimed or what is the compensation that is claimed by the claimants would not enlarge the scope of the inquiry in the reference proceedings and such queries would obviously relate to the subject matter of the acquisition.
39. The contention about the lack of locus standi to JNPT to raise the point in question is totally devoid of substance. Undisputedly, the JNPT has been joined as the party by consent and further that the consent was given because ultimately the JNPT is the beneficiary of the land acquired by the Government. Undisputedly, the JNPT was not made party during the course of reference proceedings before the reference court and they are joined at the appellate stage. On having been joined, the Apex Court has specifically observed in its order dated 14th February, 2002 that all the issues of law were kept open for consideration and the point which is sought to be raised on behalf of the JNPT is obviously the question of law which goes to the root of the matter as it relates to the question of ownership of the land.
40. It is also sought to be contended on behalf of the claimants that the said Act is a complete Code and therefore, the reference court while dealing with the matter arising out of the land acquisition would have ample power to deal with the issue of ownership. The attention was sought to be drawn to a decision of the Privy Council in (Rai) Pramatha Nath Mullick Bahadur v. Secretary of State as well also Shyamali Das's case (supra) of the Apex Court, Mohammed Hasnuddin v. State of Maharashtra . It can hardly be disputed that the said Act is a complete Code by itself. However, at the same time, the Privy Council in Pramatha Nath's case (supra) had clearly held that the jurisdiction of the court under the said Act is a special one and is strictly limited by the terms of Section 18, 20 and 21. It only arises when a specific objection has been taken to the Collector's award and it is confined to a 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. Even the question of measurement raised for the first time three years after references were duly made by Collector cannot be gone into such cases. The decision, rather than assisting the claimants, clearly rules to the contrary.
41. The said Act undoubtedly is a complete code by itself. It also provides remedies for all the claims arising out of acquisition of the land. All claims arising out of acquisition of the land, however, would depend upon the subject matter of acquisition. If the acquisition is of all the interests in the land, certainly it would include issue of ownership and that would also be the subject matter of the award by the Land Acquisition Officer and consequently the subject matter of the reference under Section 18 of the said Act. However, in cases where the land already belongs to the Government and therefore the acquisition which is sought is of only limited interest, the subject matter of the award would be restricted to such limited interest in the land. It would not include the issue of ownership right and for the same reason, the scope of the reference under Section 18 of the said Act would be to that extent, de hors the ownership right. In a case where the acquisition is only of leasehold and other outstanding interests other than the ownership right, the reference court would not be entitled to deal with the issue of ownership or title to the property.
42. In fact, the law on this point is well settled and was abundantly clarified in Nussarwanji's case (supra) and this was known to the claimants as undisputedly the claimants have filed Suit No. 54 of 1994 in that regard after commencement of the acquisition proceedings. It is, therefore, too late for the claimants to contend that the ownership issue ought to have been dealt with by the reference court.
43. In our considered opinion, there was no specific direction by the Apex Court that the reference court shall deal with the issue of title or ownership right in the property. Besides that, the law on the point is very clear to the effect that the scope of inquiry in the reference proceedings under Section 18 of the said Act depends upon the subject matter of the acquisition and in the case in hand it does not include the ownership of the land in question. The law on the point being consistently reiterated by the Apex Court as above, the contentions sought to be raised in that regard on behalf of the claimants are to be rejected.
44. A doubt was sought to be raised as to what would happen in the cases where the Government merely acquires limited interests in the land inspite of the fact that the land belongs to a private individual. Will such individual be without any remedy in such a case ? In our considered opinion, such a situation cannot arise at all and even if the Government proceeds to acquire limited interests in the land inspite of the fact that the land belongs to a private party, the proceedings would not result in the consequences contemplated under Section 16 of the said Act, and obviously therefore, the proceedings could be challenged by approaching the appropriate forum in an appropriate proceeding. However, it is not necessary to deal with such hypothetical situations. The law, as has been seen above, is well settled on the point in issue and the same squarely negatives the contentions sought to be raised on behalf of the claimants.
45. It is also sought to be argued on behalf of the claimants that there is no claim by the State Government that the land belongs to it. The claim in that regard is made only by the Central Government. Considering the provisions of Section 37 of the Land Revenue Code, 1879 and the provisions of the Constitution of India, such a claim is not permissible to be entertained by the Central Government. The contention is totally devoid of substance. The issue as to whether the land belongs to Union of India or the State Government can be a subject for dispute, if any, between the Central Government and the State Government. It is not for the strangers to raise the said issue. Undisputedly, the State Government has not claimed any right to the land in question. But at the same time, undisputedly, the salt works were established in the marshy land. Undisputedly, the licence for manufacture of salt was granted by the Salt Department of the Central Government. Undisputedly, the claimants were beneficiaries of such licences. Considering the law discussed above and the various decisions including those of the Apex Court and the Privy Council, needless to say that the issue of ownership of the land cannot be gone into in the reference proceedings in the facts and circumstances of the case. Besides, undisputedly, the salt works in question were opened prior to 1820 i.e. prior to coming into force of 1879 Land Revenue Code and long before the Government of India Act, 1935. Considering various provisions of law including the Section 37 of 1879 Code and considering the decisions of the Apex Court in Mundra Salt's case (supra), the Government's claim of ownership of land can hardly be disputed and certainly not in the reference proceedings. As regards the claim of ownership of Central Government, there is no such dispute between the State Government and the Central Government.
46. The above discussion clearly answers the first two questions for determination. Since, in the facts and circumstances of the case, the reference court could not have dealt with the issue of ownership of the land, the findings given by the reference court on this issue cannot be sustained and are liable to be set aside, being beyond the jurisdiction of the reference court.
47. Having held that the reference court could not have dealt with and adjudicated upon the claim of ownership of land in the matter in hand, for the reasons stated above, it would be necessary to consider as to whether, apart from the claim of ownership, any other claim was putforth by the claimants in the reference application under Section 18 of the said Act. In other words, it would be necessary to ascertain whether the claimants are the owners of any other right in or to the land in question.
48. Perusal of the pleadings clearly discloses that the claimants had claimed compensation essentially on the basis of their claim of ownership of land and not otherwise. Of course, there is also a claim made on account of loss of business and towards the compensation to the employees of the claimants and the value of the structures. The reference court on the analysis of the evidence on record had awarded the compensation as market value of the land as well as the value of the construction of the structures in the property. Once we come to the finding that the claimants are not entitled to claim ownership of land and the reference court could not have adjudicated upon the said issue, the impugned award to the extent it grants compensation on the basis of the claim of ownership by the claimants will have to be set aside, without going into the merits of the case and solely on the ground that it is beyond jurisdiction of the reference court, and for the same reason, of the appellate court while dealing with the matter arising out of the application under Section 18 of the said Act, as in the case in hand the subject matter of acquisition did not include the ownership rights in the land in question.
49. After framing of the issues, recording of evidence commenced before the reference court on 29th November, 1988. In the course of testimony of Mohammed Asgar, AW-1, it was stated by him that the salt work known as "Ghatacha Agar" is situate in Survey No. 205 admeasuring 67 acres, 25 gunthas and 12 annas, and as per his information derived from the Jamin Kharda, the said salt work had been in existence since 1820, and the said salt work came to his family by virtue of the sale deeds obtained by his predecessors from 1881 to 1905. He did not get the original sale deeds but certified copies thereof were produced and the same were exhibited at Exhibit Nos.29 to 45, while claiming that all those documents are the documents of title. The witness further deposed that the land in question was purchased by Vallabhdas Shivji, their predecessor from the official assignee under the Sale Deed dated 3rd August, 1881 and from whom, a part of the property i.e. Agar Ghatacha was purchased by Mohammed Abdulla Haji Mukri Bhaiji, the great grandfather of AW-1 Mohammed Asgar by the Sale Deed dated 8th August, 1882. Similarly, a portion of the land was purchased by his great grandfather from Nathya Kamlya Thakur by Sale Deed dated 23rd October, 1882, so also the piece of land was purchased from Dadu Kamlya Mhatre by Deed of 20th February, 1883, and further from Bhagwan Kacher Gautu Thakur by the Sale Deed dated 5th February, 1886. These Sale Deeds are produced as Exhibits 29, 30, 31, 32 and 33, respectively. The great grandfather of the witness also purchased the land from Joma Undir Mhatra on 9th February, 1886 (Exhibit-34). Further on 1st October, 1886, he purchased the land from Bamu Rama Patil being Exhibit 35. So also the land was purchased on 26th February, 1886 from Ajam Balumiya Shaikh Bhai Thakur, who had purchased the same from Kalu Bhoir, which is Exhibit -36. The brother of grandfather of the witness purchased the land from Kalya Mahad Thakur and Levu Kathadi Valkya Thakur by Sale Deed dated 7th October, 1890, which is Exhibit-37. Further the purchase was made by the brother of grandfather of the witness on 6th October, 1890 from Kanu Janu Thakur under Exhibit-38. The great grandfather of the witness also purchased the land from Muka Gavanu Thakur on 29th March, 1901 under Exhibit - 39. Under the Sale Deed dated 22nd January, 1904, the brother of the grandfather acquired the land from Laxman Dhondya Thakur, which is Exhibit - 40. On 25th July, 1904, the brother of grandfather purchased the land from Bama Undir Bhoir and his son Balu, which is Exhibit-41, and on the same day from Bapu Rama Thakur by deed Exhibit-42. On 15th December, 1904, brother of grandfather purchased the land from Ladagi Ayal Tukaraym Gorya Madhavi and her sons, Exhibit-43. By the Sale Deed dated 1st February, 1905, brother of grandfather purchased the land from Damodar Narayan Shet, which is Exhibit-44, and by the Sale Deed dated 17th February, 1905, brother of grandfather purchased the land from Balumiya Shaikh Bhai and one another, which is Exhibit-45. It was further stated by the witness that Exhibit-41 onwards disclosed consent of the Salt Department for the sale of land by the respective vendors. He further stated the Exhibit-47 is a letter from Collector (Salt Revenue) dated 28th October, 1910 addressed to Mohammed Amin Mohammed Abdulla Bhaiji, the grandfather. He further deposed that the endorsement in the Exhibit-48 i.e. letter addressed by the Collector of Kolaba to Tahsildar/Mahalkari, Uran, disclosed receipt of purchase price and actual delivery of possession of the land of 21 acres and 20 gunthas to the grand father of the witness. It has further stated that Kabulayat dated 10th February, 1911 ( Exhibit-49 ) executed by the Collector of Kolaba in favour of his grand father disclosed payment of price of Rs. 8/- per acre for the said land. He has further stated that the other documents disclosed the permission granted to the grand father to carry out construction activities for making the land suitable for manufacture of salt. Jamin Kharda of Ghatacha Agar Salt Work which started in the year 1820 disclosed the purchase of land from the Collector of Revenue in the year 1929 and showed the salt work to be private one and also makes reference to the Gift Deed. Jamin Kharda clearly refers to Survey No. 205 of Sheva. He claimed that the land beneath the salt work belongs to the claimants. He further stated that the earlier notification of 1970 issued under the provisions of the Land Acquisition Act clearly referred to the acquisition of land and the salt work. He has further stated that the ground rent was being paid by the claimants at the time of issuance of permission in lieu of land revenue and the salt department used to recover ground rent as per the government circular. He has further stated that there had been acquisition of land of other salt work situated at Chembur for the National Highway and compensation was paid to the owners of the lands. Exhibit 123 is the award of one of such lands which belonged to Shri Kanga. Yet another land from Saint Anton Agar was acquired on payment of compensation to Abdul Latif Mohd. Bhaiji which included compensation for the land. The land of Shri Bhave situated in the village of Sonkhar was also acquired for Sion-Panvel Road and compensation was awarded to Shri Bhave and the award in that regard is at Exhibit 126. It is further stated by the deponent that the claimants had been paying income tax for the income derived from the acquired land between the period from 1970-71 to 1983-84. He has further stated that the Mutation Entry No. 679 in respect of Survey No. 205 discloses gift of land in favour of his father and the gift deed in respect thereof is at Exhibit-89. The mutation extracts are at Exhibit-145. He has further stated that there was a chowky in the land in question and building register in respect of the said chowky discloses the land to be belonging to Shilotries. Copies of various government documents disclose the ownership of land to be in favour of the claimants and it was for the first time in the year 1983 that the ownership of the land was claimed by the Government through the salt department. The witness admitted that the salt works 'Ghatacha Agar' was established in the year 1820 and that till 1882 his ancestors were not concerned at all with the said salt works. It was also specified that the claimants were laying claim of title on the basis of the conveyances (Exhs.30 to 45) executed between 1882 to 1905. It was further stated that his grandfather Mohamad Amin had two brothers viz. Haji Mohamad and Mohamed Ismail. The name of the father of his grandfather was Mohamed Abdulla and one Haji Mukri Bhaiji was latter's father. His great grandfather Mohamad Abdulla was the purchaser in the conveyances evidenced at Exhs.30 to 35 and Exh.39. The purchaser of Exh.36 was one Balumiya who was not their ancestor and that they were not claiming any title on the basis of the conveyance produced at Exh.36. It is further admitted that the witness did not know how many sons his grandfather's brother Haji Mohamad had. He did not know whether Ajam Mohamad Bang was the son of Haji Mohamad. The fact that the name of the purchaser in Exh.40 was recorded as Ajam Mohamad Bang Valled Haji Mohamad was also admitted while confirming that the documents show that Ajam Mohamad Bang was the son of Haji Mohamad, but that he had no personal knowledge about it, and that he had never tried to collect information about the identity of the said person. It was confirmed that Exh.89 which is a gift deed does not mention how the donor Mohamad Amin had acquired the property stated to have been gifted by him. Further, it was also admitted that between 1882 and 1985 salt was manufactured in the Salt Work under a licence granted by the Salt Department, and that he had no personal knowledge about the entries made in the record of rights for the period prior to 1985. He did not attempt to collect the record of rights for the period prior to 1985. The fact that the claimants or their ancestors were never required to pay land assessment to the Revenue Department was also admitted by the witness, though it was sought to be claimed that some documents between 1882 and 1905 disclosed that his predecessors i.e. great grand father used to pay land revenue, and that there had been reference in Exhs.34 to 37 that land revenue was payable in respect of the land conveyed by those conveyances. It was also admitted that the witness did not make any inquiry to ascertain how and when the vendors of the conveyances Exhs.30 to 45 had acquired title, if any, to the lands which were conveyed thereunder.
50. Sarfuddin Mohammed Aga, AW-2, has stated in his testimony that he was serving in Fatmabai Binta Nakhoda Mohammed Amin Roge Religious and Charitable Trust and the said Trust owned salt works known as "Hira Agar" at Trombay, and the land of Hira Agar was acquired by Railways as well as by State Government for Sion-Panvel Road and compensation was paid to the Trust amounting to Rs. 11,262/-. It was for the land admeasuring 2.34 gunthas that the Trust had filed the reference for enhancement of compensation wherein the compensation was enhanced to Rs. 66,000/- and all these facts were revealed from the Audit Report and the Balance Sheet of the Trust.
51. Shri Jeevan Narayan Kulkarni, AW 3, was examined as the Valuer of the property and he has deposed about valuation of the property. Though the witness AW-3 has deposed to have evaluated the market value of the land, loss of income, etc. in the course of recording of testimony, he has clearly admitted that he did not consider any sale instance for the purpose of ascertaining the market value of the land. He has further claimed that he has made valuation on the assumption that each one of the claimants in all these references was full and absolute owner of the salt works as well as the land beneath it. He has admitted that he had no knowledge about the actual expenditure incurred in converting the land suitable for salt manufacturing work. He has also admitted that he had not received any specific information regarding the income from the salt work from the claimants, nor the claimants had furnished any documentary evidence in that regard. He has further admitted that the claimants did not show him any books of account and he was not at all aware whether such books of account were maintained. He had further admitted that it was his hypothetical estimate based on which the valuation report was prepared. He has also admitted that he did not examine any deed of title of the claimants to the property in question.
52. Shri Nathuram Govind Deshmukh, AW 4, has deposed that he had been working as Secretary for 28 years of Uran Bhag Salt Manufacturing and Marketing Co-operative Society Limited, Uran. He has deposed that the salt works owners i.e. Shilotris of those salt works, had given the salt works known as "Fakichi Agurli", "Sheokhada", "Mujghar" and "Shilotri Shenva" for a period of 10 years to the said Society and he was supposed to supervise the salt work and the activities therein and also to maintain accounts and day to day administration of the society. The society used to call for tenders for salt work and the highest bidder used to be entrusted work of manufacture of salt. He has further stated that all the salt works in which the society was manufacturing salt were taken on lease by the society, after obtaining necessary permission from the Salt Department and salt manufacturing business was carried out by the members of the society during 1971 to 1981 and the 1981 to 1991. He has further deposed that the society did not have any document to show how much ground rent was paid to the Salt Department. His testimony was recorded on 20th September, 1990.
53. In addition to the testimony of four witnesses, the claimants have also relied upon the testimonies of the claimants and the witnesses recorded in other reference cases in support of their case and they include the testimony of Ardreshwar Hormasgi Bhivandiwala, witness No. 1 for the claimant in L.A.R.No.113 of 1986, that of Shri Kaikoba Dosabhai Dongriwala, witness No. 2 for the claimant in L.A.R.No.113 of 1986 as well as the witness in L.A.R.No.184 of 1986 and that of Shri Balaram Kala Kadu, witness No. 1 for the claimant in L.A.R.No.409 of
54. Shri Ardeshire Hormasji Bhiwandiwalla, who was examined as AW-1 in Land Acquisition Reference No. 113 of 1986 had stated in his testimony in that case that he had filed 5 to 6 land reference cases in relation to his land used for salt manufacturing. He had been in the salt business since 1940 which was started by his father in the year 1870. He had been looking after the business after the death of his brother which occurred in 1940. He was responsible for starting Uran Sheva Karanja Salt Shilotris Syndicate which was to lookafter the manufacture of salt and deal with the Government. He had been the President of the said Syndicate for about 15 years. Since the times of Peshwas or Portuguese, the Salt Manufacturers were called as the "Shilotris". They were agriculturists and salt manufacturers. Most of the salt works at Uran were owned by Shilotris together with the land except one or two which were leased out by the Government. He had taken on lease the three salt works. Neither the Portuguese nor the British had ever disputed the rights of Shilotris over the salt works and over the ownership of the land. The land revenue was collected by the British from Shilotris as the government revenue. Thereafter, it was handed over to the Salt Department for administrative purposes and they collected revenue in the form of moundage which was equal to 3 to 4 pies per mound of salt. About 15 salt works were belonged to him and they were acquired by the family of the witness by way of private purchase, Court auction, sale by liquidator and sale by the Government. Neither himself nor his father had relinquished their land in favour of the Government at any time and the Government all throughout understood them as Shilotris as the owners of the salt works and the land underneath it. The order passed by the Collector of Kolaba dated 2nd March, 1928 shows that the land belongs to Shilotris as the owners thereof. It pertains to "Gawakhalcha Salt Work". After the salt work was suppressed, the land being sold by them for agricultural purposes. As there was 7/12 extract for other land, there was a document "Jamin Kharda" for the salt lands. The land was acquired for construction of road by the Salt Department as well as by the Indian Air Force on payment of compensation and nobody had disputed their proprietary rights in the salt land acquired for the said purpose. He had been cultivating agricultural land at Uran, in respect of which he had to pay assessment. Some salt works were started prior to 1870 and some construction was done after getting the licence for manufacture of salt. The Government also had made some construction on the Government salt works. He had no evidence to show that Rs. 5,00,000/-were received by him by way of compensation for acquisition of the said land. He had purchased 5 salt works by private purchase for which he had produced the sale deeds. Every transaction in respect of the salt works required permission from the Collector of Salt Department and he had received those permissions, however, the same were not filed on record. He has denied the suggestion that he could not produce such permission because it was never given to him by the Government. He has further admitted that all the lands in 79 land reference cases are Khajan or Marshy lands but he has not aware as to whether those lands were accordingly shown in the revenue records. He had transferred his salt land to the Salt Department for the purpose of administration for getting the licence for manufacture of salt. He had applied to the Salt Department for getting the licence for manufacture of salt, and if the private person wanted to start salt pan in his land, he had to relinquish occupancy right in favour of the Government before applying for licence.
55. The testimony of Kaikoba Dosabhai Dongriwala recorded in the Land Acquisition Reference No. 113 of 1986, reveals that he is a Solicitor though has not been practicing as Advocate. He is Shilotrew and salt manufacturer and active member of Bombay Salt Merchants and Shilotrews Association and Rai Murdha Chote Shilotrew Sangh. In 1957, his father had filed an application to the Salt Department along with the two other partners to construct salt work in the Village Diwa in Thane District and after receipt of the permission from the Collector, 295 acres of land in the Village Diwa were transferred in the revenue records to his mutation entry to the name of the Central Government. The Mutation Entry No. 614 of village Diwa is the same one. After the construction of Salt Works necessary licence for manufacture of salt was issued, and in Kabjedar column the Salt Department was shown while excluding their names from the 7/12 extracts. After cancellation of the licence in July, 1962, the Salt Department resisted the reversion of land to them. However, after correspondence in 1966, the Salt Commissioner, Jaipur, issued direction to the Collector of Thana to transfer 295 acres of the land in their names and thereafter regular mutation entry was carried out in respect of the said land. Till date, they were in possession of the land and were paying the land revenue assessment. He has admitted that for the purpose of grant of licence for salt manufacturing, the land has to be converted and made suitable for salt work purposes and for that purpose, the land has to be transferred in the name of the Central Government in accordance with the provisions of law. However, in the facts stated by him, their ownership right in respect of the land was re-transferred to them. He has further stated that until 1884 in Uran, Shilotries were defined as natives and proprietors of the soil with unrestricted rights of tilling the same and the said rights were inheritance and without any restriction over the rights of alienation. While enumerating the various distinguishing features between the private salt work and the government salt work, he has stated that the ownership of the private salt work can be devolved upon the heirs as well as to the assignees while the government salt work lessee has no such right. According to him, all Shilotris salt works were classified as private salt works and Jamin Kharda was a register maintained by the Salt Department. One of the columns in the Jamin Kharda describes tenure and ownership of land on which the salt work is situated. According to the witness, Jamin Kharda specifically states the details of the salt land and the salt work including the year of opening of the salt work, year of first survey, names of the Shilotris and other owners of the salt works, the total area contained in the salt works including what portions are under the pans, khajina, tapavanis and platforms. The Jamin Kharda also mentions licence number and duration of the licence. It also contains a column in respect of any encroachment made in the salt works. He has referred to the two judgments of the Bombay High Court. One in Dadabhai Jahangarji v. Rambhau Bhimbhau reported in 11 Bombay High Court Reporter sometime in 1864 and the other one in Manubhai Amrutlal Sheth v. The Government of Maharashtra delivered by the Bombay High Court in 1967, oftenly referred to the Chandivali case. However, no copies of the judgment were produced nor the correct citations were disclosed. In the cross-examination, the witness has stated that he was giving the evidence in all the reference matters as expert witness and his expertise is in the two fields, one as salt manufacture and another as legal expert. He had not brought to the Court the document to show that he is owner of the salt works. According to him, the word "Shilotri" was defined in the Regulation No. 1808 and it was not defined in any other enactment. He had no copy of the order of the Salt Department, Jaipur, issuing directions to the Collector, Thane, to retransfer the land to them. He did not have any certified copy thereof. He did not have in his possession any order of regrant of the land to them. He was not in a position to produce any document regarding the salt manufacture in the five salt works that he had claimed to have acquired.
56. The testimony of Balaram Kala Kadu recorded in the Land Acquisition Reference No. 409 of 1986, a copy of which is exhibited in the case in hand, refers to the witness being in the business of salt manufacture from the age of 17 years, and he had constructed two Agars viz. Ganesh Sonari and Siddhi Vinayak, first one in the year 1963-64 and another one in the year 1983-84, respectively. Both the Agars were owned by villagers and he was paid remuneration for the construction. His testimony is essentially regarding the nature of operation of salt works and in no way concerns with the ownership issue. It is essentially in relation to the claim of compensation for the construction carried out for making the land suitable for having salt pans for the purpose of manufacture of salt.
57. On going through the entire evidence recorded in the form of testimony as well as copies of testimony of the witnesses in other cases and the documents produced by the claimants and the witnesses, it is apparent that the claim of the claimants throughout has been of ownership of the land and there has been no other claim made for the purpose of claiming compensation under the said Act. There has been no claim of leasehold rights by the claimants in relation to the land wherein the leasehold interest or other outstanding interest have been acquired. In fact, apart from the ownership claim, no other right or interest is either pleaded or established by the claimants. The entire evidence on record relates to the claim of ownership rights in the land described in the schedule to the notification and the declaration. Once we hold that the said issue of ownership is outside jurisdiction of the reference court as the same is not the subject matter of acquisition, the question of awarding compensation on the basis of the said claim does not arise at all. Hence, the award to the extent of grant of Rs. 15,000/- per acre by the reference court as compensation for the land is to be set aside.
58. It is to be noted that merely because the parties lead evidence on a particular point which does not arise for consideration, either on account of absence of pleadings in that regard or on account of the same being beyond the scope of inquiry or on account of absence of jurisdiction of the court hearing the matter, it is not permissible to consider such evidence and to pronounce judgment on such issue which is beyond the scope of inquiry or beyond the jurisdiction of the court or which does not arise for consideration in the absence of pleadings by the parties on such point.
59. It is also to be noted that there is no dispute between the parties that the land in question is a marshy land wherein the salt work was carried out. It is settled position in law that unless the claimant proves his claim and title over any such marshy land where the salt work is being carried out, the land is deemed to be that of the Government and this point is well settled by the decision of the Apex Court in Union of India and Anr. v. Mundra Salt and Chemical Industries and Ors. reported in (2001) 1 SCC 222. It is true that the learned Counsel appearing for the claimants have sought to differentiate the decision in Mundra Salt's case, while contending that the question of title of Union of India in the said case was admittedly with reference to the period after the enforcement of Constitution of India, and that it was held by the Apex Court that after the Government of India Act, 1935, and in any case after the Constitution of India, Section 37 of the Bombay Land Revenue Code, 1879 would have no application for the claim by Union, whereas in the case in hand, the Union of India has made its claim on the basis of Section 37 of the Bombay Land Revenue Code, 1879, even though such claim has arisen much after the enforcement of the Constitution of India. Besides the title over the land in question could not be that of the Union of India, and the State Government has not laid any claim of title to the land in question. For the reasons stated above, the said issue cannot be gone into in this matter. Even otherwise, the contention is devoid of substance. The observation which is said to have been made in paragraph 15 of the judgment of the Apex Court in Mundra Salt's case (supra) was in the facts and circumstances where the transfer of land in favour of the private party was pursuant to a Sanad issued by the Government and such transfer was consequent to the sale on 22nd May, 1952, much after the enforcement of the Constitution of India. The facts of the case disclosed that the purchase of land was by auction in the year 1952. It was the contention on behalf of the Government that it was merely a lease or licence of the land to be used only for manufacture of salt without any right of transfer. It was the contention on behalf of the Mundra Salt that there was a grant which clearly disclosed that the purchaser had acquired the land absolutely. In the background of those facts, the Apex Court had made observations in paragraph 15 of its judgment to the effect that the question of ownership could not be decided with reference to Section 37 of the 1879 Code. This decision in Mundra Salt's case (supra) is of no help to the claimants to contend that well settled general proposition of law which has been reiterated by the Apex Court in the paragraph 12 of its decision has no application to the facts of the case in hand.
60. It was repeatedly sought to be contended that the Government has not produced any documentary evidence in support of its title to the land. As already stated above, since the issue of ownership of the land was not within the ambit or scope of the jurisdiction of the reference court, failure on the part of the Government to produce documentary evidence of its title to the land is of no consequence. In any case, it is always for the claimants to establish their right with reference to the claim made by them in the reference application and no amount of failure on the part of the Government would enure to the benefit of the claimants to establish their claim. Even failure on the part of the Government to establish its right to property cannot ipso facto confer title to the land upon the claimants.
61. It is also sought to be contended that in some cases, the Union of India has accepted the claim of ownership and has paid the compensation for acquisition of their land even though such land was used for manufacture of salt. Merely because in specific cases, the Government has accepted the claim of ownership of certain persons, it cannot lead to a conclusion that in each and every case, the land utilised for manufacture of salt could or should also be a private property. It was not brought on record by the claimants under what circumstances, the Government had accepted the ownership of the private persons in respect of those lands. Even assuming that the Government had accepted such claim of private ownership, that itself will not be a criteria to decide the issue of ownership of land claimed by the claimants in respect of the land in question, primarily because it is beyond jurisdiction of the reference court to decide the same, and the same is essentially to be decided on the basis of materials to be produced on record by the claimants in appropriate proceedings before appropriate forum.
62. It is not in dispute that the manufacture of salt in the said land was carried out pursuant to the licence granted by the authority and but for the licence, no salt could have been manufactured. It is also not in dispute that the licence which was granted for manufacture of salt expired on 30th June, 1983. Undoubtedly, the licence was renewed later on which was to be in force till the disposal of the writ petition or till the possession in the acquisition proceedings was taken over, whichever was to be earlier. In any case, therefore, the licence has come to an end consequent to the completion of the land acquisition proceedings.
63. As regards the compensation towards the value of structures in the land, the claimants have examined the witnesses including the Valuer Shri Jeevan Kulkarni, AW-3. In this regard, the impugned award nowhere discloses any basis for arriving at the figure of Rs. 5,000/- per acre in relation to the value of the structures in the land. The testimony of the Valuer nowhere discloses any material which could be made the basis for awarding any compensation for the alleged construction of the salt pans. The claimants have also claimed the expenditure of Rs. 50,000/- per year towards the maintenance of construction. However, apart from mere claim in that regard, there is no evidence produced in respect of any such expenditure. To substantiate any such claim, it was necessary for the claimants to lead evidence in support of their claim for compensation for the construction activity, if any, in the salt works. Once it is established that the operation of the salt works was purely on licence basis, the question of awarding compensation under the said Act in that regard consequent to the termination of such licence does not arise. As rightly pointed out by the learned advocate for the Government, the licence itself included a clause regarding absence of any right for compensation on account of termination of licence. Being so, no fault could have been found with the Land Acquisition Officer for declaring Nil compensation to the claimants.
64. As regards the claim on account of loss of business, apart from mere claim in that regard by the claimants and their witnesses, no evidence at all has been led regarding the income from the property, the actual expenditure incurred for manufacture of salt, etc. Unless, the claimant leads necessary evidence regarding the income and expenditure in relation to manufacture of salt, it cannot be said that the claimant has been able to establish his claim of loss of business on account of acquisition proceedings.
65. The fall-out of the above discussion is that, as regards the point for determination relating to the scope of enquiry under Section 18 of the said Act, the same would depend upon the subject matter of acquisition as revealed from the notification under Section 4 read with the declaration under Section 6 and the award under Section 11 of the said Act. In the case in hand, the subject matter of acquisition being the leasehold rights and other interests, excluding the ownership rights of the Government in the land in question, the scope of the inquiry in the reference proceedings in question was restricted to those rights excluding the ownership rights in the land. The finding of the reference court that the ownership of land is that of the claimants is therefore beyond the scope of the enquiry and hence the same cannot be sustained. As regards the claim of the claimants i.e. whether the claimants are the owners of any rights in the land in question, they have utterly failed to establish their claim and apart from the claim of ownership, no other claim having been canvassed and established, they have failed to establish their right to claim compensation on account of acquisition of the limited rights in the said land. Their pleadings do not disclose any claim for any other right in the land in question. Their licence to operate salt works having come to an end, the question of granting any compensation to the claimants does not arise.
66. We, therefore, find no substance in the claim of the claimants as regards the ownership of land or any other right in the land. Hence, the impugned award passed by the Reference Court in Land Acquisition Reference No. 184 of 1986 cannot be sustained and is liable to be quashed and set aside. The First Appeal No. 455 of 1994 therefore succeeds and accordingly is hereby allowed. The impugned award to the extent it relates to the Land Acquisition Reference No. 184 of 1986 is hereby quashed and set aside. The Application filed by the claimants under Section 18 of the said Act in Land Acquisition Reference No. 184 of 1986 is hereby dismissed. The First Appeal No. 741 of 1995 is hereby dismissed.
67. In the facts and circumstances of the case, there shall be no order as to costs.