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FA/1302/2002 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No.1302 of 2002
To
FIRST
APPEAL No.1305 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL Sd/-
HONOURABLE
MR.JUSTICE
R.M.CHHAYA Sd/-
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2
To
be referred to the Reporter or not ?
NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5
Whether
it is to be circulated to the civil judge ?
NO
=====================================================
DY.
COLLECTOR &
LAND
ACQUISITIO & REHABILITATION & 1 – Appellant(s)
Versus
H
M UPADHYAYA – Defendant(s)
=====================================================
Appearance
:
MR LR PUJARI, AGP for Appellant(s)
: 1 – 2.
MR BD KARIA for Defendant(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 23/08/2011
COMMON
CAV JUDGMENT
(Per
: HONOURABLE MR.JUSTICE R.M.CHHAYA)
The present group of
appeals are filed under section 54 of the Land Acquisition Act, 1894
(hereinafter to be referred to as ‘the Act’) against common judgment
and award passed under section 18 of the Act by learned Assistant
Judge, Amreli dated 26.06.2001 in Land Reference Cases No.36/1997,
37/1997, 58/1997 and 59/1997. The lands situated at village Giriya,
Tal. & Dist. Amreli have been acquired for the public
purpose of “Thebi Irrigation Project” by the State of
Gujarat. The notification, as contemplated under section 4 of
the Act, was published on 14.04.1995 and section 6 notification was
published on 28.09.1995. The Land Acquisition Officer, after
following the procedure as contemplated under the Act, made and
declared award under section 11(1) of the Act on 13.01.1997. The
Land Acquisition Officer under the said award, after considering the
sale instances and evidence adduced before him awarded compensation
of Rs.8/sq.mtr. for non-irrigated lands and Rs.12/sq.mtr. for
irrigated lands. As the original claimants were dissatisfied with
the award, they raised the disputes as contemplated under section 18
of the Act, which were referred by the Land Acquisition Officer to
District Court, Amreli and the same came to be registered as
Land Reference Case Nos.36/1997, 37/1997, 58/1997 and 59/1997. The
Reference Court passed an order of consolidation of the four
references, considering Land Reference Case No.36/1997 as main
reference. The Reference Court, after hearing the parties concerned,
vide judgment and award dated 26.06.2001 allowed the said references
and ordered to pay additional compensation of Rs.300/sq.mtr. i.e.
Rs.300/sq.mtr. over and above the amount awarded by the Land
Acquisition Officer determining the market value of the lands
acquired as Rs.308/sq.mtr. for non-irrigated lands and
Rs.312/sq.mtr. for irrigated lands. Being aggrieved by the same, the
present appeals are preferred.
The relevant factual
aspect relating to the four land references are enumerated as under:
Sr. No.
Land Ref.
Case No.
Survey of Land acquired
Village
01.
36/97
99 P.
Giriya
02.
37/97
99 P.
Giriya
03.
58/97
96/18
Giriya
04.
59/97
96/20
Giriya
At the outset, it may
be noted that for the very public purpose i.e. Thebi Irrigation
Project, the appellants have acquired large chunk of lands falling
within the catchment area of the said scheme by different
notifications, which were subject matter of appeals before this
Court and ultimately also before the Apex Court. The Apex Court in
the case of Deputy Collector, Land Acquisition, Gujarat &
Anr. Vs. Madhubhai Gobarbhai & Anr., (2009) 15 SCC 125 has
determined the market value of the lands of village Baxipur, Giriya
as well as Amreli.
Heard Mr.L.R.Pujari,
learned Assistant Government Pleader for the appellants, and
Mr.B.D.Karia, learned counsel for the respondents-original
claimants.
Mr.Pujari, relying
upon the judgment of the Apex Court in the case of Deputy
Collector, Land Acquisition, Gujarat & Anr. (supra),
contended that the lands in question of four survey numbers, which
are acquired by notification dated 14.04.1995, would fall under
Group-I, as per the aforesaid judgment and, therefore, the
respondents-original claimants would be entitled to additional
compensation of Rs.50/sq.mtr. It was further submitted that even in
case of lands, which are covered under the aforesaid judgment are
within the same vicinity of Village Giriya have been awarded
Rs.50/sq.mtr. Mr.Pujari further relied upon a sketch, which was
produced at the time of hearing in order to contend that all the
four survey numbers would fall within Group-I. It was further
submitted that as per the judgment of the Apex Court the lands,
which are situated at Village Giriya and which are away from Amreli
would fall under Group-I and, therefore, it was contended that all
the respondents would fall under Group-I and are entitled to
compensation at Rs.50/sq.mtr. only.
As against this,
learned counsel Mr.Karia appearing on behalf of the
respondents-original claimants pointed out that as per the judgment
of Apex Court in the case of Deputy Collector, Land Acquisition,
Gujarat & Anr. (supra), the Apex Court has considered the
geographical location of the lands under acquisition. It was further
submitted that the Apex Court has, while dividing the lands under
acquisition in three groups, has held in Paragraph Nos.4 and 5
that the lands which fall within Western side of River Thebi fall
within Group-I, whereas lands which are situated in Eastern side of
River Thebi i.e. of Village Giriya would fall within Group-II
and lands of Amreli which are in the developed area would fall
within Group-III. It was, therefore, submitted that the lands in
question of the original claimants would fall under Group-II, as per
the aforesaid judgment of the Apex Court.
We have heard learned
counsel for both the sides and have also examined the record and
proceedings.
On
perusal of map (Exh.18), we find that lands bearing Survey No.99
paiki are situated on the Eastern side of River Thebi, whereas
Survey Nos.96/18 and 96/20 are situated on the Western side of River
Thebi.
On
perusal of the award passed under section 11 of the Act by the Land
Acquisition Officer (Exh.17), we find that the Land Acquisition
Officer has considered 10 sale instances of the different survey
numbers of Village Giriya and has also considered the previous
awards, relating to the same public purpose of “Thebi
Irrigation Project”, passed under the provisions of the Act
being Land Reference Case No.10 of 1991 (wherein section 4
notification was published on 19.11.1990) and Land Reference Case
No.15 of 1992 (wherein section 4 Notification was published on
14.02.1992) and on the basis of the same, after considering the
valuation submitted by the acquiring body, has come to the
conclusion that the market value of the lands under acquisition is
Rs.800/Are i.e. Rs.8/sq.mtr. for non-irrigated lands and Rs.1200/Are
i.e. Rs.12/sq.mtr. for irrigated lands.
The Reference Court
has relied upon the previous award passed by the Reference Court in
Land Reference Case No.3 of 1997 relating to the acquisition for the
same purpose in which case section 4 notification was published on
12.10.1993 (Exh.23) and has fixed the market value by awarding the
additional compensation of Rs.300/sq.mtr.
The Apex Court in the
case of Deputy Collector, Land Acquisition, Gujarat & Anr.
(supra) has observed thus:
“2. The State of Gujarat issued
diverse notifications for acquisition of a huge tract of lands for
construction of a dam over a river known as `Thebi’. The lands sought
to be acquired were spread over in three villages, namely, Amreli,
Baxipur and Giriya. Whereas villages Amreli and Baxipur are
situated on the western side of river
and within the municipal limit of the town of Amerli; village Giriya
is on the eastern bank thereof and outside the municipal limit of the
said town Amreli. Amreli is the headquarters of the District Amreli.
It is a well developed town. A National Highway known as
“Amreli – Chittal Road” passes through the town of Amreli.
The residents of the town enjoy the facilities of
transportation, hospitals, schools, colleges, telephone, etc.
3. It is, however, admitted that the entire
development has taken place on the eastern bank of the river and not
on the western bank. The villages situate on the western bank,
however, admittedly are wholly undeveloped. The lands under
acquisition are agricultural lands. The land upon acquisition were to
be submerged under water.
4. The Land Acquisition Officer made three
different awards for three different villages. For agricultural lands
situate in village Baxipur, which are the subject matters of judgment
and order dated 23.02.1998 passed in F.A. No.3119/1997 and F.A.
No.3120/1997 and judgment and order dated 4.5.1999 passed in F.A.
Nos.6184-6203/1995 and other connected appeals, compensation was
awarded at the rate of Rs.75/- per square meter. Out of 350 land
owners, however, only 156 land owners filed applications for
reference before the Collector in terms of Section 18 of the Land
Acquisition Act, 1894 (hereinafter referred to as, “the said
Act”). The Reference Court awarded compensation calculating the
market value thereof at the rate of Rs. 75/- per square meter in
respect of lands situate in Baxipur village (western side of river
Thebi), Giriya village (eastern side of river Thebi) and Amreli
village (western side of river Thebi).
5. So far as the lands situate within the Amreli
town, which is within the municipal area and situate on the eastern
side of the river comprising of residential and commercial area which
was developed since 1984, are concerned; the Land Acquisition Officer
awarded compensation at the rate of Rs.50/- per square meter in
respect of agricultural lands, but the Reference Court and the High
Court awarded compensation at the rate of Rs.160/- per square meter
of land. For the same area in respect of non-agricultural lands, the
Land Acquisition Officer awarded compensation at the rate of Rs.150/-
per square meter whereas the Reference Court as also the High Court
awarded compensation at the rate of Rs.240/- per square meter.
FOR GROUP-I
34. The High Court, however, proceeded on the
basis that although the acquired lands were situated on one side of
the river, in view of the fact that entire acquired land was to be
submerged, no justification can be made in regard to the nature of
the land. The High Court held (in our opinion wrongly) that distance
of a few kilo meters from the Amreli town would not matter. The High
Court furthermore opined that the lands in village Baxipur were also
fertile and thus no discrimination can be made. For the said purpose
the High Court relied upon the Awards made in the earlier case
exhibited as Exhibits 68 and 73 in terms whereof compensation @
Rs.75/- per sq. meter was paid.
35. The variation in the price of the land within
a few years is a matter of great significance. It is true that no
single factor would be decisive for the purpose of arriving at the
market value of the land. But in a case of this nature a holistic
view is required to be taken.
36. It is, in our opinion, wholly improper to
forget the distinction between the agricultural land and the
non-agricultural land. Even in the same area, value of the
agricultural land and the non-agricultural land may be considerably
different. For the said purpose, existence of the road; railway
station; airport; schools; colleges; hospitals etc. play an important
role.
37. It is not a case where the developed area
and the undeveloped area or for that matter non agricultural and
agricultural lands are merely divided by a road. It is also not a
case where the entire area is known and treated to be one and the
same, although a part of it may be governed by the Panchyat and the
other part comes within a municipal area.
38. It stands admitted that the acquired lands
for all intent and purport is divided into two parts. The eastern
part and only a small part of the western side is within the
municipal area and the other, consisting of agricultural lands, is
outside the municipal area. It furthermore stands admitted that the
town has developed only on eastern side of the river and agricultural
lands are situated on the western side in which there is even no
residential house.
48. It is on the aforementioned factual backdrop
and legal principles governing grant of compensation, the market
value of the lands situate within Group-1 is required to be
determined. The lands are purely agricultural lands. There were no
buildings; there was no residential use; there was no factory. No
development had taken place nor was any development expected in
immediate future. The lands were acquired only for the purpose of
submergence. It had thus even no building potentiality. We,
therefore, are of the opinion that in view of the materials brought
on record, the valuation of the land should be determined at Rs.50/-
(Rupees Fifty only) per square meter.
FOR GROUP-II
82. So far as deeds of sale pertaining to the
years 1988 and 1989 are concerned, the same were executed more than
three years prior to the date of acquisition. However, in respect of
the deeds of sale pertaining to Survey No. 89, in view of the
under-valuation of the lands sold, the Collector fixed the same at
the rate of Rs.125/- per sq. mtr. Furthermore, the Collector himself
has fixed the premium of Rs.300/- per sq. mtr. for conversion from
agricultural land to non-agricultural land. Although the same by
itself would not be a safe criterion for determining the market
value, we are of the opinion that both of them may form the basis for
arriving at a reasonable conclusion.
83. For the aforementioned purpose, this Court
must keep in mind that the distance of the lands sought to be
acquired apart from other factors from the Highway also plays an
important role. Evidence has been brought on record to show that some
lands, which are the subject matter of the sale deeds on which
reliance has been placed by the claimants, are situated at a distance
of 1.5 to 4 kms from the
Highway. In that view of the matter, it would, in our opinion, be
safe to arrive at the market value as on the date of acquisition for
the non-agricultural lands at Rs.250/- per sq. mtr. So far as the
agricultural lands are concerned, even if they had the potentiality
of being converted into a non-agricultural lands as on the date of
notification, they were agricultural lands albeit in a developed
area. The valuation thereof may be determined at 50% of the developed
land, that is, at Rs. 125/- per sq. mtr.
FOR GROUP-III
96. Keeping in view the ratio laid down in the
aforementioned decisions as also the materials placed on record, we
are of the opinion that the amount of compensation for the lands
acquired in this matter arrived at by the High Court, that is,
Rs.240/- per sq. mtr. for non-agricultural land and Rs.160/- sq. mtr
for agricultural land does not warrant any interference on our part.
The High Court, in this regard, has adopted the correct approach
particularly in view of the fact that the lands in question are not
only situated within a developed area but being situated near
Aerodrome, Schools, Hospitals, etc. the market value thereof could
not have been determined at a lesser rate.
97. Now we shall deal with the question of the
amount payable for acquisition of 21 godowns and the land on which
they stand in Survey No.43/5A-1. Out of the total area of 4250 mtrs
of land, 2972 sq. mtrs. is agricultural land and 1278 sq. mtrs. is
non-agricultural land on which the godowns have been constructed.
Commercial complexes were constructed on it in the year 1984.
Respondents have constructed 6 big godowns and 15 small godowns. The
amount of rent of the godowns has been brought on record. Respondents
have claimed compensation under various Heads, namely, price of the
land, loss suffered due to recovery of rent for 2 years of godowns,
loss for construction for deep-well, watchman quarter, etc.”
The Apex Court has considered different awards passed for acquisition
of lands for the very public purpose i.e.
“Thebi Irrigation Project” pertaining to the lands of
Village Baxipur, Village Giriya as well as Amreli. The Apex Court has
considered the geographical location of the lands so acquired for the
determination of its market value. The Apex Court while determining
the market value, has considered that the lands situated on the
Western side of river Thebi are wholly undeveloped and are
agricultural lands and, therefore, treating the lands situated on the
Western side of river Thebi of village Baxipur as
well as Giriya have been grouped as Group-I and has determined the
market value of such lands at Rs.50/sq.mtr. Similarly, the Apex Court
has considered the geographical location of the lands of Village
Giriya situated on the Eastern side of river Thebi and held that the
lands of Village Giriya situated on Western side of river Thebi are
developed lands with infrastructural facilities like highway are more
valuable lands and has considered that there are non-agricultural as
well as agricultural lands but in a developed area and has grouped
them as Group-II and has fixed the market value of such
lands falling under Group-II at Rs.125/sq.mtr. for agricultural
lands and Rs.250/sq.mtr. for non-agricultural lands. Similarly,
considering the geographical location of lands falling within Amreli
and taking into consideration the fact that the lands situated within
Amreli are within the municipal limit hence, situated in the Eastern
side comprising of residential and commercial area which are already
developed since 1984 are grouped as lands falling within Group-III
and as been determined the market value of those lands at
Rs.160/sq.mtr. for agricultural lands and Rs.240/sq.mtr. for
non-agricultural lands.
On examining the
lands under acquisition in these appeals, more particularly the map
at Exh.18, we find that lands bearing Survey Nos.96/18 and 96/20 of
Village Giriya are situated on the Western side of river Thebi,
whereas Survey No.99 part of Village Giriya are situated on the
Eastern side of river Thebi i.e.
in a developed area near the State Highway Road.
Hence, keeping in
view the ratio laid down by the Apex Court in the case of Deputy
Collector, Land Acquisition, Gujarat & Anr. (supra), lands
bearing Survey Nos.96/18 and 96/20 of Village Giriya would fall
under Group-I as the same are situated on Western side of river
Thebi, whereas Survey No.99 part of Village Giriya would fall under
Group-II as the same are situated on the Eastern side of river
Thebi.
It may be noted that
in the judgment of Deputy Collector, Land Acquisition, Gujarat &
Anr. (supra) while fixing the market value of the lands falling
under Group-I at Rs.50/sq.mtr., the Apex Court had considered the
land acquisition proceedings wherein section 4 notifications were
published varying from 08.08.1990 to 05.06.1993, whereas in the
instant case, section 4 notification is of dated 14.04.1995 and,
therefore, as decided by this Court in the case of The Special
Land Acquisition Officer, Bharuch Vs. Motibhai Mohanbhai, 1997
(2) G.L.H. 773, the opponents/ claimants would be entitled to
increase in price for two years @ 10% p.a. and, therefore, in First
Appeal Nos.1302-1303/2002 the respondents/original claimants shall
be entitled to compensation @ Rs.60/sq.mtr. (i.e. Rs.50/- plus
Rs.10/-). Similarly, as per the aforesaid judgment of the Apex Court
while determining the market value for the lands falling under
Group-II, wherein notification under section 4 was published on
10.12.1992, the respondents/ original claimants, who fall within
Group-II, would also be entitled to increase in market value by 10%
p.a. for two years and, therefore, the respondents/original
claimants of First Appeal Nos.1304-1305/2002 shall be entitled to
compensation at Rs.150/- (i.e. Rs.125/- plus Rs.25/-). Other
statutory benefits, as awarded by the Reference Court under section
23(1A), 23(2) and 28 of the Act, are not required to be interfered
with, save and except to the extent that on account of reduction of
principal amount of compensation, such benefits shall get
proportionately reduced. Hence, the impugned judgment and award of
the Reference Court shall stand modified accordingly.
In the result, the
appeals are partly allowed to the aforesaid extent and in the facts
and circumstances of the case, there shall be no order as to costs.
Registry to
place a copy of this judgment in all the connected matters. Registry
is also directed to send back the original record and proceedings to
the Reference Court.
Sd/-
[JAYANT
PATEL,J]
Sd/-
[
R.M.CHHAYA, J]
After
the pronouncement of the judgment, the
learned counsel for the original claimants prays that the authorities
may be directed to deposit the amount of compensation, if not
deposited fully. Hence, considering the facts and circumstances, the
amount of compensation, if not deposited with the Reference Court,
shall be deposited within a period of 08 (eight) weeks from the
receipt of the judgment of this court.
Sd/-
[JAYANT
PATEL,J]
Sd/-
[
R.M.CHHAYA, J]
***
Bhavesh*
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