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FA/1671/2007 2/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1671 of 2007
To
FIRST
APPEAL No. 1686 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 ?
=========================================
STATE
OF GUJARAT AND ANOTHER
Versus
RAMABHAI
MAGANBHAI AND ANOTHER
=========================================
Appearance :
MR
SS SHAH, GP with MS TK PATEL, AGP for the Appellants
MR KM SHETH
for Defendant(s) : 1,
DS AFF.NOT FILED (R) for Defendant(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 29/08/2008
COMMON
ORAL JUDGMENT
1. By
way of this appeal, the appellant ? State has challenged the
judgment and award of the Reference Court dated 10.09.2004 in L.A.
Case Nos.641 to 656 of 1998, whereby compensation of Rs.32.80 per sq.
mtr. was granted over and above the compensation already awarded by
the Special Land Acquisition Officer.
2. The
brief facts, as emerging from record, are as under:-
2.1 The
lands of the original claimants situated at village Hathijan, Tal.:
Dahegam, Dist.: Gandhinagar was acquired for the purpose of Narmada
Yojna Main Canal under the Narmada Project. Notification under
Section 4 of the Land Acquisition Act, 1894 was published on
28.01.1994, whereas Notification under Section 6 of the Act was
published on 29.01.1996. After following due procedure, the Special
Land Acquisition Officer, by his award dated 31.03.1997, awarded
compensation @ Rs.25,000/- per Hector for non-irrigated land and
Rs.37,500/- per Hector for irrigated land as against the claim of
Rs.1,00,000/- per Vigha, i.e. Rs.62/- approximately per sq. mtr. made
by the claimant.
2.2 Being
aggrieved by aforesaid award of Special Land Acquisition Officer, the
original claimants preferred References under Section 18 of the Act.
The said References were heard by the learned 2nd Extra
Assistant Judge & Special Judge (L.A.R.), Ahmedabad (Rural), who
vide his judgment and award dated 10.09.2004 was pleased to award
compensation @ Rs.32.80 per sq. mtr., over and above the compensation
already awarded by the Special Land Acquisition Officer for the
acquired land. Being aggrieved by it, the appellants herein have
filed these appeals.
3. Heard
Ms.Trusha Patel, learned AGP appearing for the appellants and learned
advocate Mr.K.M.Sheth appearing on behalf of the respondent No.1
4. Learned
AGP Ms.Patel submitted that Special Land Acquisition Officer had
granted Rs.2.70 inspite of that, the Reference Court has by granted
Rs.25.30 additional compensation per sq. mtr. and thereby a mistake
is committed by the Reference Court while passing impugned award.
She submitted that even if earlier award is accepted, even then
amount awarded is on higher side. In the present case, Section 4
notification was published on 28.01.1994 and there is a gap of 2
years and 4 months and therefore, the claimants are entitled to
increase of 23.3%. She invited attention of the Court to paragraph
Nos.8 and 9 of the award, which read as under:-
?S8. Applicants have
produced relevant documents like 7 an 12 and evidence of the sale
transaction of last 5 years. The map of the village is also
produced. Opponent side has examined their office bearer. Now it is
well settled that if the land of the same village were previously
acquired then 10% rise for each year should be given to the land
owners. There is judgment of Gujarat High Court reported in 39/1
G.L.R. page No.1130 in which following ratio is held.
?S(A) Land
Acquisition Act (1 of 1894), S.23 Determination of compensation award
made by the High Court in respect of acquisition of land in the same
village taken as a guide ? Appreciation in the value of land @ 10%
per annum accepted. Award modified accordingly. (See. Para 8).??
Second Authority is
1992(1) G.L.H. 417 in which it is held that:-
?Sthe main anxiety of
the authority or the Court should be to ascertain and find out the
fair and just amount of value of the land under acquisition. The
mandate of section 23 of the Act is to see that the affected person
in an acquisition proceedings is placed in the same position, as far
as possible, as he would have been, had there been no acquisition.??
9. The both judgment
clearly applies to present case and applicants are entitled to 10%
rise per year. Now the land of village Bahiyal which is also in
picture in present case, were acquired in 1991 in Land Acquisition
Case No.8/90, 9,90, 10,90. The applicants in previous cases had
preferred references and ultimately, Court awarded Rs.25.30 ps.
additional compensation per sq. mtr. In my view according to settled
position, the previous award is guide for present case. The copy of
previous award produced in this matter. In previous case
notification was published on 29/9/91 whereas in the present case,
Notification under Section 4 was published on 28/1/94 according to
learned advocate there is 3 years difference between date of
notification.??
5.
The learned AGP submitted that in the present case, the Reference
Court has awarded additional amount of Rs.28 over and above the
amount awarded by the Special Land Acquisition Officer and amount
awarded by earlier award of Rs.25.30 and increase of Rs.23.3% even
if increase of Rs.6.52 is given, the total amount that can be awarded
for irrigated lands comes to Rs.34.52 and therefore, the amount of
Rs.36.55 is required to be reduced.
8. In
above view of the matter, the claimants will be entitled to in all
Rs.30.77 additional amount for the irrigated lands. It is clarified
that if there are non-irrigated lands, the claimants of the
non-irrigated lands will get only Rs.23.02. The appeals are allowed
to the aforesaid extent. Rest of the award of the References Court
is not disturbed. No costs.
(K.S.Jhaveri,
J.)
*Shitole
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