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FA/1042/2009 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1042 of 2009
To
FIRST
APPEAL No. 1049 of 2009
With
CIVIL
APPLICATION No. 3048 of 2009
To
CIVIL
APPLICATION No. 3055 of 2009
=========================================================
EXECUTIVE
ENGINEER - Appellant(s)
Versus
SULEMAN
AHMED & 2 - Defendant(s)
=========================================================
Appearance
:
MS
SEJAL K MANDAVIA for
Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 20/03/2009
ORAL
ORDER
Heard
learned advocate Ms. SK Mandavia on behalf of appellant.
The
appellant Executive Engineer, road and building department, District
Panchayat, Bharuch original opponent no. 2 has challenged award
passed by Reference Court in LAR no. 213/90 to 220/90 exh 26 decided
on 31/3/2008. The Reference Court, Bharuch has awarded additional
amount of compensation in favour of respondent claimants and granted
market value at the rate of Rs. 1072/- per ARE together with market
price rise.
Learned
advocate Ms. Mandavia submitted that Reference Court has committed
gross error in considering previous award exh 14/1 because land
belonging to Valiya and in present case Siludi are too different not
having adjoining to each other and Valiya is taluka place and Siludi
village is far away from taluka headquarter, Valiya and situated on
extreme Western boundary of village. After leaving village Nandhan,
Dungari and Voida villages are situated there. She submitted that
Reference Court has committed gross error in awarding amount being
additional compensation in favour of respondent claimants i.e. Rs.
1072/- per ARE.
I
have considered submission made by learned advocate Ms. Madavia and
I have also perused award passed by Reference Court. Learned
advocate Ms. Mandavia prayed from page 25 where Reference Court has
referred that instant group of land reference cases, on behalf of
claimants, reliance is placed on previous award, passed in group of
L.A.R. Case no. 1057/2002 to 1067/2002, which copy is placed at mark
14/1 being previous award.
Thereafter,
she pointed out that both villages are not situated adjoining and
lands are not similar having potentiality and fertility. Therefore,
both lands are not comparable to each other and assessment made by
Reference Court is wrong and contrary to law which is required to be
interference. After considering aforesaid statement made by learned
advocate Ms. Mandavia, Shiludi is near to village Valiya, for that,
there is no dispute. The relevant observations made by Reference
Court in para 25 to 32 are quoted as under:
?S25. In the case
of second additional Special Land Acquisition Officer and others v/s
Chunilal Gangaram and others 1999 (2) G.L.R. Page 1357. It is held
by the Honourable High Court of Gujarat that
?S It is no more
res-integra that the decision of the reference court, given in
earlier case is a relevant and material piece of evidence for the
purpose of determining compensation to be awarded in other cases.??
26. Thus,
considering the principles laid down in the case of Land Acquisition
Officer V/s A. Krishnamurty, A.I.R. 1984 Orissa, the case of officer
on special duty (land acquisition) G.I.D.C., Amdavad Vs. Jamkuben
Kalidas Sodha (1992(1) G.L.H., 417 and the case of 2nd
Addl. Special Land Acquisition Officer & others V/s Chunilal
Gangaram & others (1999 (2) G.L.R., page 1357. It is settled
position of law that if, in that case, amount of compensation can be
awarded on the basis of the previous award.
In the instant
group of land reference cases, on behalf of the claimants, the
reliance is placed on previous award, passed in the group of L.A.R.
Case no. 1057/02 to 1067/02, the copy of which, is placed at mark
14/1. Mark 14/1 is the copy of the previous award, in respect of
the claimants’ land of the revenue boundary of village Valiya. No
doubt, considering the geographical map of Taluka Valiya, the
revenue boundary of Valiya, village Siludi is in Valiya Taluka, but
it is on extreme Western boundary of Valiya Taluka. Though, it is
settled position of law that in the absence of the sale instances,
the previous award in respect of the land, under acquisition of the
same village or adjoining village can be considered. If, the land,
under acquisition in the case on hand, and the land of the previous
award are comparable in respect of its geographical condition,
fertility and other aspect, having bearing on valuation of either
agricultural produce or lended property. Therefore, under normal
circumstances, if the revenue boundary of Valiya, and the land of
the previous award, in respect of the claimant’s land of the
revenue boundary of village Valiya would have been proved to be
comparable with the claimants’ land of present group of land
reference cases, the market value of the present claimants’ land
would have been assessed at par with that of the claimants’ land of
the revenue boundary of village Valiya. But here it is pertinent
to note that village Valiya is a Taluka Head quarters. Whereas,
village Siludi is far away from Taluka, after leaving village
Nardhari, Dungari and Voda.
27. As stated
hereinbefore that village Valiya is the Taluka Head Quarters.
Whereas, village Siludi is a small village, situated at the extreme
Western boundary of Valiya Taluka, far away from the Head
Quarters, and a judicial notice can be taken that Valiya being a
Taluka Head Quarters, having some inherent facility, in respect of
the marketing and transport etc. Therefore, even, if, productivity
wise, the land of the Taluka Head Quarters are at par with that of
agricultural land of an interior village i.e. Siludi in the instant
case, and the farmers of the interior village Siludi, are getting
same quantity per acre agricultural produce, as well as
agricultural land is reasonably lower than the market price of the
agricultural produce, and the agricultural land of Taluka Head
Quarters Valiya. Under the aforesaid circumstances, though,
village Siludi is in Valiya Taluka itself but the market price of
the agricultural land of village Siludi cannot be assessed at par
with that of the agricultural land of Taluka Head Quarters Valiya.
28. No doubt, in
the instant group of land reference cases, on behalf of the
claimants, the reliance has been placed on the previous award, mark
14/1, passed in the group of land reference case No. 1057/02 to
1067/02, passed by the learned Joint District Judge, and Presiding
Officer, 4th F.T.C., Bharuch. Wherein, the learned Jt.
District Judge, and Presiding Officer, 4th F.T.C.,
Bharuch was pleased to assess the market value of the claimants’
land, situated in the revenue boundary of village Valiya, at the
rate of Rs. 1820/- per ARE. But, as under section 23 of the ?Ssaid
Act??, the compensation has to be assessed on the date of
publication of notification, under section 4 of the said Act. The
date of issuance of the notification, under section 4 of the said
Act is material, for assessing the compensation. In the previous
award, passed by the learned Jt. District Judge, and Presiding
Officer, 4th F.T.C., Bharuch in L.A.R. Case no. 1057/02
to 1067/02 (mark 14/1). The notification, under section 4 of the
?Ssaid Act??, was published on 26/7/90. Whereas, the
notification, under section 4 of the ?Ssaid Act’, for acquiring
the present claimants’ land has been published in the Govt. gazette
on 6/10/1988 i.e. 1-year-9-months & 20 days i.e. about 21.5
months earlier than the publication of notification, under section
4 of the ?Ssaid Act?? of the claimants’ land of L.A.R. Case no.
1057/02 to 1067/02 (mark 14/1). Therefore, in the considered
opinion of this Court, if, the market price rise value of the
present claimants’ land is assessed at the rate of is considered at
the 12% p.a. (inconformity with Section 23(1-A) of the ?Ssaid
Act??) less than the assessed the market value of the claimant’s
land of the L.A.R. Case no. 1057/02 to 1057/02, the end of the
justice will be served.
29. As the market
value of the claimants’ land of L.A.R. Case No. 1057/02 to 1067/02
(mark 14/1) has been assessed at Rs. 1820/- per ARE, on the date of
publication of the notification, under section 4 of the ?Ssaid
Act?? i.e. on 26/7/90 as the notification, under section 4 of the
?Ssaid Act??, for acquiring the present claimants’ land has been
published on 6/10/88 i.e. about 21.5 months earlier than the
publication of the notification, under section 4 of the said Act,
for acquiring the claimants’ land of mark 14/1, 78.5% of Rs. 1820/-
comes to Rs. 1428=70 ps. i.e. Rs. 1429/- per ARE on the date of
publication of notification, under section 4 of the ?Ssaid Act.??
30. Further, as
stated hereinbeofre that village Siludi is far away from Taluka
Head Quarters Valiya, and is situated on the extreme Western
boundary of village Valiya Taluka, after leaving village Nardhari,
Dungari and Voda, and it is a small village. In the considered
opinion of this Court, if the market value of the present
claimants’ land is assessed at 80% of the assessed market value of
the claimants’ land of mark 14/1, the end of the justice will be
served. As on the basis of the previous award mark 14/1, in
respect of the claimants’ land of revenue boundary of village
Valiya, the market value of the present claimants’ land on the date
of publication of notification, under section 4 of the said Act has
been assessed at Rs. 1429/- per ARE, 80% of Rs. 1429/- comes to Rs.
1143=20 ps i.e. Rs. 1143/- per ARE. Therefore, the market price of
present claimants’ land on the date of publication of notification,
under section 4 of the ?Ssaid Act?? i.e. 6/10/88 has been
assessed at Rs. 1143/- per ARE.
31. As stated
hereinbefore the market value of the present claimants’ land on the
basis of the previous award mark 14/1, having been assessed at Rs.
1143/- per ARE, but the Spl. LAO having awarded only Rs. 71/- per
ARE, certainly, it can be said that the market price assessed by
the Spl. LAO is unreasonably low. In the result, I answer issue
no. 1 in the affirmative.
32. As the market
price of the claimants’ land on the date of publication of
notification, under section 4 of the ?Ssaid act?? has been at Rs.
1143/- per ARE but the Spl. LAO had awarded only Rs. 71/- per ARE,
the claimants are entitle to get additional market value at the
rate of Rs. 1072/- per ARE, hence, I answer issue no. 2
accordingly.??
In
view of reasoning given by Reference Court and considering
submissions made by learned advocate Ms. Mandavia, the Reference
Court has rightly worked out difference and distance between village
Shiludi and Valiya. However, Reference Court has also considered
previous award at mark 14/1 have been assessed at Rs. 1,143/- per
ARE but special land acquisition officer has awarded only Rs. 71 per
ARE certainly in light of previous award, amount which has been
fixed by Special Land Acquisition officer is apparently
unreasonable. Therefore, Reference Court has considered
notification u/s 4 and after considering previous award exh 14/1 in
respect to claimants’ land of revenue boundary of village Valiya,
market value of present claimants’ land from date of publication of
notification u/s 4 of said Act has been assessed Rs. 1429/- per ARE,
out of 80% of Rs. 1429/- comes to Rs. 1143.20 ps per ARE. Therefore,
market price of present claimant’s land on date of publication of
notification u/s 4 of said Act on 6/10/1988 has been assessed at Rs.
1143/- per ARE. The difference is between notification in respect
to previous award and in respect to present case is also considered
by Reference Court in para 33, which is quoted as under:
?S33. Section
23(1-A) of the Land Acquisition Act provides that:-
?SIn addition to
the market value of the land as above stated, the Court shall in
every case award an amount, calculated at the rate of 12% p.a. on
such market value for the period, commencing on and from the date
of the publication of the notification, under section 4(1) of the
Land Acquisition Act in respect of such land to the date of award
of the Collector or the date of taking the possession of the land
whichever is earlier.??
In the instant
group of land reference cases, as neither party has placed any
evidence on record as to when the possession of the land, under
acquisition was taken from the claimants, under section 23(1-A) of
the ?Ssaid Act??. The claimants are entitle to get market price
rise at the rate of 12% p.a. from the date of publication of
notification, under Section 4 of the ?Ssaid Act?? i.e. 6/10/88
till the date of award i.e. 21/9/89, for a period of 11-months and
15-days i.e. for a period of 11.5-moths.
Section 23(2) of
the Land Acquisition Act provides that :-
?SIn addition to
the market value of the land as above, provided, the Court shall
in every case award a sum of 30% of such market value in
consideration of the compulsory nature of acquisition.?? Therefore,
the claimants are entitle to get an additional 30% amount of
compensation by way of solatium, as provided, under Section 23(2)
of the ?Ssaid Act.??
The
Reference Court has considered that Section 4 notification is dated
6/10/1988 and section 4 notification in respect to previous award is
21/9/1989, only eleven months fifteen days difference are there i.e.
how Reference Court has calculated amount of Rs. 1072/- market price
rise has been fixed per ARE in respect to LAR no. 213/1990 to
220/1990.
According
to my opinion, reasoning which has been given by Reference Court can
not consider to be arbitrary or baseless and perverse. On the
contrary Reference Court has rightly analyzed market price of land
in question and rightly considered previous award passed by
Reference Court, Bharuch, for that, according to my opinion,
Reference Court has not committed any error which would require
interference by this Court. Therefore, contention raised by learned
advocate Ms. Mandavia can not be accepted hence, rejected.
Hence,
there is no substance in present appeal. Accordingly, present
appeal is dismissed. No order on civil applications.
(H.K.RATHOD,
J)
asma
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