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FA/57/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 57 of 2010
To
FIRST
APPEAL No. 72 of 2010
=========================================================
STATE
OF GUJARAT & 1 - Appellant(s)
Versus
YAKUB
ISMAIL YUSUF DASU - Defendant(s)
=========================================================
Appearance
:
MR
P. K. JANI GOVERNMENT PLEADERN with Mr. U. A. Trivedi Add. GP
for
Appellant(s) : 1 - 2.
MR MM SAIYED for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 15/02/2010
ORAL
ORDER
Heard
learned Government Pleader Mr. PK Jani with learned Add. GP Mr.
Umesh Trivedi on behalf of appellant, learned advocate Mr. MM Saiyed
appearing for respondent claimants.
The
appellant has challenged award passed by Reference Court in Land
Acquisition Reference cases no. 2749/98 to 2764/98 exh 65 decided on
8/8/2008. The Reference Court, Bharuch has awarded Rs. 27.50ps in
Land Acquisition case no. 95/96 being an additional amount of
compensation over and above awarded by Land Acquisition Officer.
Learned
Add. GP Mr. Trivedi submitted that lands of original claimants
situated at village Sarod, Taluka Jambusar District Bharuch for a
purpose of construction of Sarod minor canal. The section 4
notification is dated 14/12/1995 and section 6 notification is dated
23/3/1996. The Land Acquisition Officer has passed an award in Land
Acquisition case no. 95/96 on 28/7/1997 awarded Rs. 2.20ps per sqmt.
Against which, claimants have aggrieved and filed references u/s 18
of Land Acquisition Act. The Reference Court has passed an award on
8/8/2008 vide exh 65 which is challenged by appellant State.
He
submitted that Reference Court has committed gross error in not
considering sale transaction of last five years, which were
considered by Land Acquisition Officer. The claimants have not
produced any genuine documents to prove or to show that they are
entitled more compensation. He submitted that it is a duty of
claimants to prove that their lands are more valuable than
compensation awarded by Land Acquisition officer.
He
submitted that Reference Court has committed an error in relying
upon exh 57. There is nothing on record to show that lands referred
in exh 57 is similar to that of land in present reference.
Therefore, same can not be relied.
He
also raised contention that Reference Court has not given cogent
reason why Reference Court has differ with award passed by Land
Acquisition Officer. The best method is to consider sale instances
and best evidence to prove is what a willing purchaser would pay for
land under acquisition. The market value is price property may fetch
in open market if sold by willing seller unaffected by special needs
of particular purchaser.
He
also submitted that village Nodhana is also nearby village and vide
exh 29 previous award in respect to village Nodhana was produced on
record. Even though, same has been ignored by Reference Court
relying upon map exh 64. He submitted that map exh 64 which was
produced on record not giving correct and clear detail about nearby
village Nodhana and Kavli and also not include survey number which
has been acquired in present acquisition by State Government.
Therefore,
he submitted that land belonging to claimants must have to be nearby
either village Kavli or Nodhana. That part must have to be properly
considered by Reference Court, but that aspect has not been taken
into account by Reference Court. According to him, Reference Court
has committed gross error in awarding an additional amount of
compensation in favour of claimant while relying upon exh 57
previous award of village Kavli. Except that no other submission is
made by learned Add. GP Mr. Trivedi before this Court.
Learned
advocate Mr. Saiyed appearing for respondent claimants submitted
that before Reference Court, none was examined by appellant being a
rebuttal evidence of claimants. He also submitted that before
Reference Court, no detailed map produced by appellant in respect to
village Nodhana and Kavli.
He
also submitted that no such contention raised by appellant before
Reference Court that in comparison to nearby village Kavli, in fact,
village Nodhana is very near to village Sarod. Therefore, that
aspect has been rightly not considered by Reference Court.
According to him, village Nodhana is having distance about 4
kilometer from village Sarod and village Kavli is having two
kilometer distance from village Sarod. That has been clear from map
exh 64 which has been rightly relied upon by Reference Court and
also there is difference of 14 days in publication of section 4
notification. In respect to Land Acquisition case no. 99/96,
section 4 notification is dated 30/11/1995 and in respect to facts
of present case, section 4 notification is dated 14/12/1995. So,
difference in respect to section 4 notification between two village
i.e. Sarod and Kavli are only 14 days.
Learned
advocate Mr. Saiyed submitted that Reference Court has rightly
relied upon exh 57, for that, otherside has not produced rebuttal
evidence on record and Reference Court has rightly relied upon
evidence of claimant. Therefore, no error is committed by Reference
Court which would require interference by this Court.
I
have considered submission made by both learned advocates and I have
perused award passed by Reference Court. Before Reference Court,
Land Acquisition Officer has awarded Rs. 2.20ps per sqmt against
claim of claimants Rs. 70/-. The appellant has filed reply before
Reference Court vide exh 6. Thereafter, issues have been framed by
Reference Court vide exh 4. On behalf of claimant one Yakub Ismail
Yusuf Dasu exh 13, one Rameshchandra Bhaskar Rao Secretary of APMC
exh 22 were examined and vide exh 23, price list was produced on
record for a period 1991-92 to 1999-2000. The documentary evidence
vide exh 34 to exh 54, village form 7/12 was produced on record and
vide exh 55 village form no. 16 also produced in respect to village
Sarod. Thereafter, evidence of Yakub Ismail Yusuf Dasu has been
considered by Reference Court. The claimants have proved before
Reference Court that their lands are having potential value,
fertility and utility and they were getting various crops from
agricultural land in all three seasons and they were earning from
agricultural land. This facts have been discussed by Reference
Court in para 8 while deciding issue no. 1, 2 and 3.
The
claimant was cross examined by appellant. The advocate of claimant
has relied upon previous award in respect to village Kavli and both
village are nearby village means adjoining Simada and lands
belonging to both villages are having similar potential value and
fertility. In previous award of village Kavli, in land reference
case no. 2424/98 exh 57, Rs. 30/- has been awarded as an additional
amount of compensation and there is a difference of 14 days between
section 4 notification of village Sarod and village Kavli. On
behalf of appellant, reliance is placed on record that village
Nodhana is near to village Sarod and in Land Reference case no.
1098/1993 exh 29 previous award relied, where Rs. 10.80ps has been
awarded as market price of lands acquired by State Government.
The
submissions made by both learned advocates have been considered by
Reference Court and thereafter considering evidence of claimants. No
oral evidence led by appellant. According to map exh 64, Reference
Court has considered previous award of village Kavli exh 57 because
according to Reference Court, village Kavli is more nearer to
village Sarod in comparison to village Nodhana. This finding is
given by Reference Court on the basis of evidence of claimant and
there is no rebuttal evidence produced by appellant and contention
which has been raised by learned Add. GP Mr. Trivedi to the effect
that map exh 64 is not specifically covered survey number which was
acquired by State Government in respect to village Sarod.
Therefore, previous award of village Nodhana exh 29 is wrongly not
relied by Reference Court because near village is to be considered
on the basis of survey number which was acquired and not to consider
entire village.
This
submission made before this Court not made by appellant before
Reference Court, otherwise, Reference Court must have to consider
such technical submission while deciding references. The Reference
Court has considered that village Kavli is very near to village
Sarod in comparison to village Nodhana. Accordingly, amount awarded
by Land Acquisition Officer has been deducted from Rs. 30/- and an
additional amount comes to Rs. 27.50/-. On that basis, an
additional amount of compensation per sqmt Rs. 27.50 has been
awarded with all other consequential statutory benefits.
According
to my opinion, contention which has been raised by learned Add. GP
Mr. Trivedi can not be accepted because such submission was not made
at all before Reference Court. The appellant has not produced any
rebuttal evidence before Reference Court. The appellant has not
produced entire map covering village Sarod and village Nodhana and
village Kavli before this Court. The map which was produced by
claimant exh 64 i.e. in respect to village Sarod only which has been
rightly relied by Reference Court because it has not been objected
by appellant before Reference Court.
Therefore,
Reference Court has not committed any error while relying upon exh
57 previous award of village Kavli which is near to village Sarod
and difference of 14 days in respect to section 4 notification of
village Sarod and Kavli has been properly considered by Reference
Court. On that basis, an additional amount of compensation has been
worked out after deducting amount awarded by Land Acquisition
Officer can not consider to be erroneous finding. On the contrary,
Reference Court has rightly examined matter based on legal evidence
and appellant has not produced any rebuttal evidence means there is
no map produced by appellant before Reference Court against map exh
64 produced by claimants. The finding given by Reference Court can
not consider to be baseless and perverse. The reasoning given by
Reference Court is with application of mind and in absence of
evidence from other side appellant, Reference Court has rightly
examined matter based on legal evidence. For that, no interference
is required by this Court.
Hence,
there is no substance in present group of appeal, all appeals are
dismissed. No order as to costs. Decree is to be drawn immediately.
The
acquisition made by State Government in present case is of 1995,
more than 15 years have passed. The claimants are not able to
received any amount of compensation from appellant. Therefore, in
interest of justice on being request made by learned advocate Mr.
Saiyed, it is directed to appellant to deposit entire awarded
amounts together with costs and interest with all consequential
statutory benefits before Reference Court, Bharuch within a period
of two months from the date of receiving copy of this order. After
realizing said amounts from appellant, it is directed to Reference
Court, Bharuch to pay such amount, which are available to each
respondent by A/c payee cheque in their name after proper
verification.
(H.K.RATHOD,
J)
asma
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