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FA/1492/2007 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1492 of 2007
With
FIRST
APPEAL No. 1493 of 2007
With
CROSS
OBJECTION No. 7 of 2010
In
FIRST APPEAL No. 1492 of 2007
To
CROSS
OBJECTION No. 8 of 2010
In
FIRST APPEAL No. 1493 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS
JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
THE
SPECIAL LAND ACQUISITION OFFICER & 1 - Appellant(s)
Versus
THE
BHARUCH UDYOGNAGAR SANGH LIMITED - Defendant(s)
=========================================================
Appearance
:
MR
JANAK RAVAL, LD.ASST.GOVERNMENT PLEADER
for
Appellant(s) : 1 - 2.
MR PUSHPADATTA VYAS for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 11/07/2011
COMMON
ORAL JUDGMENT
By
way of present appeals, the appellants have challenged the legality
and validity of the judgment and award dated 30th April
2005 passed by the Joint District Judge and Fast Track Court No.2,
Bharuch in Land Reference Case Nos.161 and 162 of 1998, whereby the
Reference Court has partly allowed the said Reference Cases in
favour of the respondent-original claimant. As against the same, the
respondent-original claimant has also filed Cross Objection Nos.7
and 8 of 2010 challenging the legality and validity of the very
judgment and award to the extent that the Reference Court has not
allowed the claim/ Reference of the respondent herein for more than
Rs.100/- and at least for Rs.200/- with enhancement under different
heads.
The
facts in brief are that the competent authority under the Land
Acquisition Act made a proposal for acquisition of the lands
belonging to the respondent-original claimant. After following due
procedure, the land came to be acquired. Award came to be passed by
the competent authority fixing the amount of compensation. However,
being dissatisfied with the said award, the respondent-original
claimant raised dispute, by way of a Reference. The Reference Court
partly allowed the same by way of the impugned award. Hence, present
appeals as well as cross objections.
Mr.Janak
Raval, learned Assistant Government Pleader, for the appellants, has
submitted that the Reference Court has erred in granting Rs.1 lac
towards construction and tube-well, etc.; that in the year 1990 the
lands were acquired and at that time the notified area was not
developed and thus, the Reference Court has erred in awarding
additional compensation; that the Reference Court has failed to
appreciate the sale instances produced vide Exhibits 37 to 44 and
that the Reference Court has erred in relying upon the report of the
valuation of the year 1993. In view of aforesaid submissions, it is
prayed that present appeals may be allowed by setting aside the
impugned judgment and award.
As
against the same, Mr.Pushpadatta Vyas, learned advocate for the
respondent-original claimant, has submitted that the respondent was
entitled to minimum Rs.200/- per sq.mtr. or more with consequential
benefits; that the Reference
Court has erred in appreciating the fact to the extent that the
price of the similar land as per the record produced by the
appellant herein was more than Rs.100/- per sq.mtr. in the year 1987
to 1989; that the Reference Court has failed to appreciate that the
witness of the appellant failed to make him available for
cross-examination and, therefore, the version of the respondent
herein ought to have been believed. It is also submitted that so far
as the contentions raised by the appellant are concerned, the
Reference Court has after taking into consideration the relevant
aspects of the matter and appreciating the evidence on record come
to the impugned conclusion, which is just and proper to the extent
as aforesaid. In view of aforesaid, it is prayed that the appeals
filed by the appellant-State
may be dismissed and the cross-objections filed by the
respondent-original claimant may be allowed as prayed for.
Having
considered the rival contentions raised by the learned advocates for
the respective parties, averments made in the appeal memos,
cross-objections and the documentary evidence produced on record as
well as the impugned judgment and award, it transpires that the
Reference Court has after taking into consideration the report of
the valuer at Exhibit 33 and the value of construction in the year
1990 has rightly granted the amount of Rs.60,000/- towards
construction of office room, bore-well and pump-room, which was
about 40.80 sq.mtrs. as against the amount of about Rs.81,000/-.
Further, the Reference Court has after taking into consideration the
very report of the valuer at Exhibit 33 and taking into
consideration the fact that pipeline can be withdrawn from one place
and reinstalled at another place awarded the amount of Rs.40,000/-
as against the amount of Rs.2 lacs suggested by the valuer. Thus,
taking into consideration the overall aspects of the matter, it
transpires that the Reference Court has rightly awarded an amount of
Rs.1 lac towards construction and tube-well.
5.1
So
far as the contention of the respondent-original claimant that the
respondent ought to have been awarded an amount of Rs.200/- per
sq.mtr. is concerned, it is required to be noted that the Reference
Court has after taking into consideration the sale instance No.7
produced on record vide Exhibit 7 in respect of a big piece of land
situated nearby the lands in question, awarded an amount of Rs.100/-
per sq.mtr. qua the acquired lands. In fact and in reality, it is
pertinent to note that the Reference Court has erred in taking into
consideration the fact that the market value of the said land at the
relevant point of time was Rs.105.02 ps. and, therefore, the same
would have been considered for the lands in question, which were
acquired in the year 1988. Further, it is required to be noted that
the notification under Section 4 of the Land Acquisition Act was
published in the year 1990 and the market value of the nearby land as
aforesaid was Rs.105.02 ps. was fixed in the year 1988. Thus, the
Reference Court ought to have fixed the price of the lands in
question at Rs.105.02 ps. per sq.mtr. in the year 1988 and thereby,
the respondent-original claimant ought to have been 10% increase per
year, which comes to 20% since the notification under Section 4 was
published in the year 1990. Thus, the respondent-original claimant is
entitled to additional amount of Rs.21.04 ps. per sq.mtr. and total
Rs.126.04 ps. per sq.mtr. for the lands in question.
For
the foregoing reasons, present appeals fail and are, accordingly,
dismissed. No order as to costs.
The
cross-objections are hereby partly allowed. The respondent-original
claimant is entitled to additional
amount of Rs.21.04 ps. per sq.mtr. and total Rs.126.04
ps. per sq.mtr. for the lands in question. No order as to costs.
Award be drawn accordingly.
(K.S.
Jhaveri, J)
Aakar
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