JUDGMENT
Ravi R. Tripathi, J.
1. All these First Appeals are filed being aggrieved of the common judgment and award dated 7th February, 1989 passed in Land Acquisition Reference Case Nos. 478 of 1986 to 489 of 1986 by the learned Assistant Judge, Bharuch, whereby compensation at the rate of Rs. 660=00 per Are was awarded in place of Rs. 120=00 per Are awarded by the Land Acquisition Officer, along with 12% interest on the market value of the land for the period from the date of publication of the notification under section 4 of the Land Acquisition Act till the date of the award of the Collector or till the date of taking over possession, whichever is earlier. The learned Judge was pleased to hold that the claimant is entitled to 30% solatium on the market value and is also entitled to recover interest 9% per annum for the first year from the date of taking over possession and for the subsequent year, till the date of payment with running interest @ 15% per annum.
2. The facts of the case in nutshell are that the lands of the appellants situated within the revenue limits of Village Haldarva, Taluka and District : Bharuch, were acquired for the purpose of construction of canal in Ankleshwar Division for Narmada Project. Notification under section 4 of the Land Acquisition Act, 1894 was published in the Government Gazette on 27/09/1983 and notification under section 6 of the Act was published in the Government Gazette on 3/3/1984.
2.1 The Special Land Acquisition Officer (Narmada Project), Bharuch heard the claimants and on 30th April, 1986 awarded compensation at the rate of Rs. 120=00 per Are along with Rs. 2,595=00 towards damages on account of laying of pipelines in Block No. 71.
2.2 The claimants in the Land Acquisition Reference Cases, being aggrieved by and dissatisfied with the award of the Special Land Acquisition Officer, moved the District Court under section 18 of the Land Acquisition Act. The learned Assistant Judge, Bharuch, by the judgment impugned, partly allowed the Reference and awarded additional compensation as indicated in the Schedule to the judgment.
3. Mr. H.B. Shah, learned Advocate appearing for the appellants, original claimants, contended that the learned Judge, while considering the case of the claimants, under which they had claimed compensation Rs. 50,000=00 per Acre and in some cases, Rs. 60,000=00 per Acre, has failed to consider the sale instances, which were very relevant, being of the lands similar to that of the lands under acquisition and also of the period, very close to the period during which the lands under acquisition were acquired. He submitted that the learned Judge, while placing reliance on Exh. 12, `award’ dated 24th February, 1981, whereby compensation at the rate of Rs. 450=00 per Are was granted, was right. He was also right in considering 30% rise so as to reach the market value of Rs. 585=00 (Rs. 450=00 + 30% i.e. Rs. 135=00 = Rs. 585=00) on the date of the notification under section 4, in this case, that is, 27th September, 1983. He further submitted that the learned Judge was also right, but not fully, when he awarded only 25% rise to come to the figure of Rs. 731=00 (Rs. 585=00 + 25% i.e. Rs. 146=00 = Rs. 731=00) taking into consideration the potentiality of the land for non-agricultural use . He submitted that the rise of 25% given by the learned Judge is on lower side, but then, he submitted that as there was no material which could have been taken into consideration by the learned Judge to grant more than the rise granted by the learned Judge. He submitted that the learned Judge committed an error in deducting 10% to reach the real market value of Rs. 658=00 (Rs. 731=00 – 10% i.e. Rs. 73=00 = Rs. 658=00, Rounded Off = Rs. 660=00) on the ground of largeness of area under acquisition, after having granted rise of 30% on account of time lag and 25% on account of potentiality of the land for non-agricultural use. He submitted that the learned Judge has lost sight of the fact that while considering the aspect of largeness of area under acquisition, he ought to have taken into consideration the area of the land of each holder. He submitted that as is on the record, lands were acquired for construction of canal of Ankleshwar Division. He submitted that a judicial notice can be taken of the fact that very large area of lands was acquired, but then when it comes to consider the aspect of largeness of the land under acquisition by the Court, it has to take into consideration the holding of each owner. He submitted that in the present case, the details of area under acquisition of each holder are set out in the Land Reference Cases, which are produced by the learned Judge in paragraph 3 of the judgment. He submitted that from the perusal of the schedule incorporated in the judgment, area under acquisition has varied from 607 sq. mtrs. to 12444 sq. mtrs. He submitted that out of 12 Cases, only in two cases, the area under acquisition was in five digits while in all other cases, it was in four figures. He submitted that if the learned Judge had taken this aspect into consideration, he would not have misguided himself and would not have deducted 10% amount on the ground that total lands under acquisition were admeasuring 7 hectares. He vehemently submitted that the deduction on that ground is not only unwarranted, but is also untenable in law because such deduction is not permissible under law on this ground and hence, it is not just and proper. Mr. Shah relied upon a judgment dated 23rd December, 1998 of the Division Bench of this Court (Coram : Mr. Justice J.M. Panchal and Mr. Justice M.H. Kadri) in the matter of Officer on Spl. Duty (Land Acquisition) v. Bai Khadija D/o Mohmed Davji Through heirs, in First Appeal Nos. 170 to 193 of 1990 and First Appeal Nos. 2527 to 2551 of 1992. Mr. Shah relied upon the observations made by the Division Bench in paragraphs 17 and 18 of the said judgment, which read as under :
“17. As noted earlier, notification under section 4(1) of the Act in award Exh. 20 was published on July 8, 1976 and the notification under section 4(1) of the Act was published on October 20, 1977 in the present appeals and, therefore, there was a gap of one year and three months between publication of the two notifications. The Reference Court had given price rise of 15% for two years, but, in view of the above decision rendered in State of Gujarat v. Pirojsha P. Contractor (supra) that the relevant date for determination of compensation is the date of publication of the first notification, we hold that price rise of 20% should be given to the market value which was determined for agricultural lands by award Exh. 20 taking into consideration the gap of one year and three months between the two modifications. Therefore, the price rise of one year and three months would come to Rs. 90/- per Are. The market value of agricultural lands would thus come to Rs. 540/- as on the date of publication of notification under section 4(1) of the Act.
18. Witness Balubhai Desaibhai Patel Exh. 21 had deposed that many industries in villages Gadkhol and Piraman had started prior to publication of notification under section 4(1) of the Act. The evidence of this witness was not challenged during the cross-examination by the appellant. Therefore, it becomes evident that the industrial activities had already started in both the villages prior to publication of notification under section 4(1) of the Act. It is a settled legal principle that in ascertaining market value of the acquired land, potentiality is to be taken into consideration. There is ample evidence on record of this case that prior to issuance of notification under section 4(1) of the Act, various industries were already established in the villages and G.I.D.C. had acquired vast tracts of lands of different villages in the surrounding area of Ankleshswar town. Therefore, looking to the potentiality of the acquired lands, in our opinion, 40% rise deserves to be given to the amount of Rs. 540/-. Adding 40% rise of potentiality of the acquired lands, the total amount have given rise of potentiality at 40%, some amount will have to be deducted towards the development of the lands, which would normally be 1/3rd of the amount of 40%. We have given rise of Rs. 216/- towards potentiality and therefore, an amount of Rs. 72/= will have to be deducted towards development charge of the land in question. Deducting the amount of 1/3rd i.e. Rs. 750 – 72/-, in our view, = Rs. 684/- would be the market value of the acquired lands of villages Gadkhol and Piraman can be ascertained at Rs. 684/-, which is rounded-up at the figure of Rs. 685/- per Are i.e. Rs. 6.85 ps. per Sq.mt. Therefore, ascertainment of market value of the acquired lands by the Reference Court at Rs. 765/- per Are deserves to be modified and we hold that the market value of the acquired lands on the date of publication of notification under section 4(1) of the Act i.e. 20th October, 1977 was Rs. 685/- per Are.”
The learned Advocate submitted that in this view of the matter, if the higher claim of the claimants was not found acceptable by the learned Judge, there was no reason for the aforesaid deduction.
4. Mr. A.D. Oza, learned Government Pleader, supported the judgment and award of the learned Judge and submitted that deduction of 10% from the figure arrived at on the basis of the amount of compensation, awarded by the `award’ dated 24th February, 1981, was just and proper. The learned Judge has rightly taken into consideration the aspect of largeness of the area under acquisition. He submitted that it is an accepted principle that when the area under acquisition is large, sale instances or award for land of small area, are to be considered only after certain deductions to reach to the actual market value. Mr. Oza did not support his submissions by any decision. The submission of Mr. Oza is right, but then, what is required to be taken into consideration is that the `largeness of area’ should be appreciated with reference to each land owner.
5. In view of the decision of the Honourable Apex Court in the matter between Thakarsibhai Devjibhai & Ors. v. Executive Engineer, Gujarat & Anr., reported in 2001(2) G.L.H. 583, it is clear that the question o largeness of the area under acquisition is to be determined with reference to each land owner. The Honourable Apex Court has observed that the acquisition may be that of large piece of land, but then, while considering the question of compensation, one has to scan the acquisition of each land owner. Thus, the Court has to take into consideration the area under acquisition of each individual holder. In view of the clear position of law, the learned Judge is not correct in making deduction of 10%. Hence, the said deduction is quashed and set aside.
5.1 In the result, all the First Appeals are partly allowed. It is directed that the claimants shall get compensation at the rate of Rs. 731=00 per Are (Rs. 450=00 + 30% i.e. Rs. 135=00 = Rs. 585=00 + 25% i.e. Rs. 146=00 = Rs. 731=00) instead of Rs. 660=00 per Are. It is clarified that the claimants will be entitled to all other `statutory benefits’ under the law. It is also clarified that the claimants will be entitled to interest on the solatium amount also at the rate of 12% from the date of notification. No order as to costs.