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FA/3667/2009 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3667 of 2009
To
FIRST
APPEAL No. 3681 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MS.JUSTICE B.M.TRIVEDI
=========================================================
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 ?
=========================================================
STATE
OF GUJARAT & 1 - Appellant(s)
Versus
BACHUBHAI
GAMJIBHAI LAWAR & 2 - Defendant(s)
=========================================================
Appearance
:
MS
MOXA THAKKAR Ld. AGP for Appellant(s) : 1 - 2.
MR VIJAY N RAVAL
for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MS.JUSTICE B.M.TRIVEDI
Date
: 14/03/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. When
the Civil Application for fixing early date of hearing of these First
Appeals, is taken up for hearing, with the consent of the learned
counsel appearing for both the sides, the appeals are taken up for
final hearing.
2. As
all the appeals arise from the common judgment and award passed by
the Reference Court, they are being considered by this common
judgment.
3. The
short facts of the case are that for the project of Adalwada
Irrigation Scheme, the land at village Bhorva, Taluka Dhanpur was
acquired under the Land Acquisition Act (hereinafter referred to as
“the Act”). The notification under sec. 4 of the Act was
published on 4.3.2004, whereas, the notification under sec. 6 of the
Act was published on 27.5.2004. The award was passed on 15.1.2005 by
the Special Land Acquisition Officer and the compensation was
awarded. However, the said compensation was not satisfactorily to the
original land owners, raised dispute under sec. 18 of the Act, which
came to be referred to the Reference Court for adjudication. The
Reference Court, after hearing both the sides, awarded the
compensation at Rs. 35/- per sq. mtrs. plus statutory benefits of
solatium and increase of price as per Section 23(1-A) of the Act and
the interest as per the statutory requirement. It is under these
circumstances, the present appeals before this Court.
4. We
have heard learned AGP Ms Moxa Thakkar for the appellants and Mr.
V.N. Raval learned advocate for the original claimants.
5. It
is undisputed position that village Bhorva at which lands were
situated, is adjacent to village Adalwada. The lands were also
acquired for the very project at village Adalwada and for the said
lands also, the dispute was raised for compensation and the matters
carried up to this Court in the proceedings of First Appeal No.
2168/2010 and allied matters, which came to be decided by this Court
(Coram: Jayant Patel & Ms. Abhilasha Kumari, JJ) on 2.8.2010 and
as per the said decision, the compensation at Rs. 35/- per sq. meter
is confirmed by this Court.
6. We
may state that this Court in the above referred decision of First
Appeal No. 2168/2010 and allied matters, inter alia, observed that:
“4. The
only contention raised on behalf of the Special Land Acquisition
Officer by the learned Assistant Government Pleader is that the
Reference Court ought not to have relied upon the decision of other
Reference Court for acquisition of the land of Jalod taluka. He
submitted that unless evidence was there on record to show that the
present lands were just adjacent to the land of Reference Case No.
254 of 2004, in respect to the lands of Jalod Taluka, the reliance
placed is erroneous,therefore, it would be a case for remand of the
matter to the Reference Court for re-consideration.
5. The
examination of the said contention shows that it is not the only
matter where the Reference Court has not at all considered the other
aspects. In order to assess the valuation of the land,broadly, three
modes or the yardsticks are settled. One is of the sale instances,
the another is, if any award or compensation is fixed by the
competent Court in respect to the similar land or adjacent land and
the third is yield method. On the aspect of the sale instances, the
Reference Court has considered, but the said aspect is not given
weightage on the ground that there was no evidence which led to the
effect that there was voluntary sale and voluntary purchase and/or
fertility of the land for which, the sale instances were shown. The
sale deeds were also not produced. On the aspect of yield method, the
claim was of Rs.1,00,000/- per acre and the evidence, as was led on
behalf of the claimants, was to the effect that the annual
agricultural income from the land was Rs.1,00,00/- per acre per year.
Learned Judge, while appreciating the evidence,has not fully relied
upon the said aspects and has assessed yearly income of approximately
Rs.30,000/- per acre. Out of the said amount, 50% is deducted towards
expenses of the agriculture and net income assessed is Rs.15,000/-
per acre.
6. The
formula applied for capitalist value is 10
times of the annual income,therefore, the learned Judge has found
that the market value would be considered as Rs.1,50,000/- per acre.
If the said finding of the learned Judge is considered per sq.meter,
the value of the land would be Rs.40 per sq.meter. It is in addition
to the aforesaid finding, the learned Judge has relied upon the order
of the Reference Court in Reference Case No. 254 of 2004 in respect
to the other agricultural land of Jalod Taluka, wherein the
additional compensation awarded was Rs.35/-. The pertinent aspect is
that, as stated by the learned Assistant Government Pleader, the said
decision of the Reference Court in Reference Case No.254 of 2004 has
been confirmed by this Court
in First Appeal No. 4073 of 2007 and allied
matters vide order dated 17.8.2007. Another
aspect which is required to be taken note of is that the Notification
under Section 4 of the Act in that case was published on 22.1.2001
and the additional compensation awarded was Rs.35 per sq.meter. If
the appreciation, at the rate of 10% per annum, is considered from
the date of the Notification under Section 4 of the Act, in that case
and the date of the Notification under Section 4 of the Act in the
present case, it would be approximately 30% more since there is a gap
of about 3 years in between. In spite of the same, the learned Judge
has not considered the appreciated value and has taken the base as
was granted
on the basis of the valuation assessed in
the year 2001 at Rs.35/- per sq.meter. Under these circumstances, we
find that the contention that unless the land of Taluka Jalod, which
was subject matter of Reference Case No.254 of 2004 was adjacent to
the land in question,the Reference Court could not have relied upon
the decision of the earlier award passed in respect to the land of
Taluka Jalod, which would not only lose its importance but
considering the case in either way, may be on the basis of the yield
method or may be on the basis of the compensation fixed for similar
land,it is not possible to accept the contention that the additional
compensation awarded can be said to be unfair or improper.”
7. For
the reasons recorded by the reference Court is considered in light of
the aforesaid observations made by this Court for acquisition of the
lands at village Adalwada, it is not possible for us to take a
different view.
8. The
attempt was made by the learned AGP for the appellant to contend that
there was distance of about 60 kilometers from the land which was
covered in Land Reference Case No. 254 of 2004, pertaining to Jhalod
Taluka, which is considered as a basis by the Reference Court in the
present matter.
9. We
may record that the similar contention came to be raised by the
learned AGP in respect of the acquisition of lands for the same
project at village Nalu in the proceedings of First Appeal No.
5244/2010 and allied matters, decided on 25.2.2011. It may be
recorded that village Nalu is on the otherside of village Adalwada
and in the said group of First Appeal No. 5244/2010, while dealing
with the said contention, this Court observed, thus:
“9.We
are araid such can be considered in view of the aforesaid decision of
this Court. Same fact situation prevailed in the earlier matter of
First Appeal No. 2168 of 2010 and even though there was distance of
about 60 kilometers from the land covered by Reference case No. 254
of 2004, this Court accepted the compensation for the land of village
Adalwada having found that no error has been committed by the
Reference Court. On the contrary, if the appreciation is to be
considered as it is, as observed in the above referred judgment and
reproduced hereinabove, it could be 30% more in comparison to the
land located at Taluka Jhalod, whereas,
such appreciation was not given by the Reference Court in the said
matter for the land at village Adalwada and such has also not been
given in the present matter. Therefore, even if that aspect is
considered, it would not lead us to take a different view than the
view taken in First Appeal No. 2168 of 2010 and allied matters.”
10. The
same view deserves to be taken in the present matters. It appears
that the reference Court has
awarded compensation of Rs. 35/- per sq. meter at par
with the view taken by this Court and, therefore, all the appeals are
meritless and, therefore, dismissed. Considering the facts and
circumstances of the case, there shall be no order as to costs.
11. In
view of the order passed in the main First Appeal, Civil Application
No. 3120 of 2011 would not survive and shall stands disposed of
accordingly.
(JAYANT
PATEL, J.)
(Ms.
B.M. TRIVEDI, J.)
mandora/
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