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FA/4164/2006 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No.4164 of 2006
to
FIRST
APPEAL No.4173 of 2006
For
Approval and Signature:
HON'BLE
MR.JUSTICE J.M.PANCHAL
HON'BLE
SMT.JUSTICE ABHILASHA KUMARI
=========================================================
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 ?
==========================================================
GENERAL
MANAGER & 1 - Appellant(s)
Versus
RABARI
JAMABHAI SENDHABHAI - Defendant(s)
==========================================================
Appearance:
MS
KRINA P. CALLA, AGP, for Appellants (IN FA:4164/06 to 4168/06
MS
TANUJA KACHCHHI, AGP, for Appellants (IN FA:4169/06 to 4173/06
MR
ASHOK V PRAJAPATI, for Respondent(s)-Claimant(s)(IN ALL FIRST
APPEALS)
==========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.M.PANCHAL
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 13/11/2006
ORAL
JUDGMENT
(Per : HON’BLE MR.JUSTICE J.M.PANCHAL)
Admitted.
Mr.Ashok V.Prajapati, learned counsel, waives service of notice on
behalf of the claimant/ claimants in each Appeal. Having regard to
the facts of the case, all these Appeals are taken up for final
disposal today.
By
filing these Appeals under Section 54 of the Land Acquisition Act,
1894 (?Sthe Act?? for short), read with Section 96 of the Code of
Civil Procedure, 1908, the appellants have challenged the legality
of common judgment and award dated July 1, 2005, rendered by the
learned Joint District Judge, 3rd Fast Track Court,
Patan, in Land Acquisition Reference Case No.13/2004 to 22/2004, by
which, the claimants are awarded additional amount of compensation
at the rate of Rs.45/- per sq.mt. over and above the amount of
compensation awarded to them by the Special Land Acquisition Officer
vide award dated November 21, 2003, at the rate of Rs.4.50 ps. per
sq.mt., for their acquired lands.
A
proposal was received by the State Government to acquire the lands
of village Vansa, Taluka: Harij, District: Patan, for the public
purpose of construction of Narmada canal. On scrutiny of the said
proposal, the State Government was satisfied that the lands of
village Vansa were likely to be needed for the said public purpose.
Therefore, a Notification under Section 4(1) of the Act was issued,
which was published in the official gazette on April 5, 2002. The
land owners were served with notices who had opposed the proposed
acquisition. After considering their objections, a report was
submitted by the Special Land Acquisition Officer to the State
Government as contemplated by Section 5A(2) of the Act. On
consideration of the said report, the State Government was satisfied
that the lands of village Vansa which were specified in the
Notification published under Section 4 of the Act were needed for
the public purpose of construction of Narmada canal. Therefore, a
declaration under Section 6 of the Act was made which was published
in the official gazette on June 29, 2002. The interested persons
were thereafter served with notices under Section 9 of the Act for
determination of amount of compensation payable to them. The
claimants appeared before the Special Land Acquisition Officer and
claimed compensation at the rate of Rs.200/- per sq.mt. However,
having regard to the materials placed before him, the Special Land
Acquisition Officer, by his award dated November 21, 2003, offered
compensation to the claimants at the rate of Rs.4.50 ps. per sq.mt.
The claimants were of the opinion that the offer of compensation
made by the Special Land Acquisition Officer was highly inadequate.
Therefore, they filed applications under Section 18 of the Act
requiring the Special Land Acquisition Officer to refer the matters
to the Court for the purpose of determination of just amount of
compensation payable to them. Accordingly, References were made to
the District Court, Patan, where they were numbered as referred to
above.
On
behalf of the claimants, witness Mr.Ramsinh Sumersinh Darbar was
examined at Ex.19. Over and above stating that the lands acquired
were highly fertile and that each claimant was earning the net
income of Rs.45,000/- to Rs.55,000/- per Vigha per year from the
sale of agricultural produces, the witness produced previous award
of the Reference Court relating to the lands of village Modhera at
Ex.17 in support of the claim of the claimants for enhanced
compensation. The witness also produced the previous award of the
Reference Court relating to the lands of village Chandroda at Ex.18
in support of the claim for enhanced compensation. Further, the
witness produced the sale-deeds relating to the lands of village
Harij vide Ex.36 to 38 to support the claim for enhanced
compensation.
On
behalf of the appellants, witness Mr.Bhaleshkumar Alkhabhai Asari,
who was the Land Acquisition Officer, was examined at Ex.23 whereas
Mr.Yogendrakumar Jawaharlal Gupta, who was the Deputy Executive
Engineer, was examined at Ex.31. Mr.Yogendrakumar Jawaharlal Gupta
produced the previous award of the Reference Court relating to the
lands of village Roda for the purpose of consideration of the Court.
On
appreciation of evidence adduced by the parties, the Reference Court
was of the opinion that the previous awards as well as the
sale-deeds produced by the parties were relevant for the purpose of
determining the market value of the lands acquired in the instant
case from village Vansa. On the basis of documents produced by th
parties, the Reference Court has awarded additional amount of
compensation to the claimants at the rate of Rs.45/- per sq.mt. by
the impugned award giving rise to the above numbered Appeals.
This
Court has heard Ms.Krina P.Calla with Ms.Tanuja Kachchhi, learned
Assistant Government Pleaders, for the appellants as well as
Mr.Ashok V.Prajapati, learned counsel appearing for the claimant/
claimants in each Appeal, at great length and in detail. This Court
has also considered the documentary evidence as well as oral
evidence adduced by the parties before the Reference Court.
From
the record of the case, it is evident that the claimants had relied
upon the previous awards of the Reference Court relating to the
lands of village Modhera and village Chandroda, which were produced
at Exs.17 and 18 respectively. The testimony of witness Mr.Ramsinh
Sumersinh Darbar recorded at Ex.19 would indicate that no reliable
and satisfactory evidence could be adduced to establish that the
lands of village Modhera and lands of village Chandroda, which were
acquired earlier, were similar in all respects to the lands acquired
in the instant case. Further, the testimony of witness
Mr.Yogendrakumar Jawaharlal Gupta, examined on behalf of the
appellants, would indicate that the lands which were previously
acquired from village Modhera were situated at a distance of about
40 kms. away from the lands acquired from village Vansa whereas the
lands of village Chandroda which were previously acquired by the
Government were situated at a distance of about 20 kms. away from
the lands acquired from village Vansa. In view of great distance at
which the lands acquired in the instant case were situated from the
lands of village Modhera and village Chandroda, this Court is of the
opinion that the previous awards relating to the lands of village
Modhera and village Chandroda could not have been made basis for the
purpose of determining the market value of the lands acquired in the
instant case.
Further,
the cross examination of the witness for the claimants would
indicate that agricultural operations were dependent upon rainy
waters and rainy season was completely irregular. The record further
shows that the lands acquired from village Vansa were situated near
desert of Kutchh and therefore, the claim made by witness Mr.Ramsinh
Sumersinh Darbar, that the lands acquired were highly fertile and
that each claimant was earning Rs.45,000/- to Rs.55,000/- per Vigha
per year from the sale of agricultural produces, becomes highly
doubtful.
As
the lands acquired from village Vansa were not comparable to the
lands which were previously acquired from village Modhera and
village Chandroda, this Court is of the opinion that the Reference
Court was not justified in placing reliance on those awards for the
purpose of determining the market value of the lands acquired from
village Vansa. Similarly, the sale-deeds produced by the witness for
the claimants relating to the lands of village Harij could not have
been taken into consideration for the purpose of determining the
market value of the lands acquired from village Vansa for the simple
reason that they were relating to non-agricultural lands whereas in
the instant case, agricultural lands were acquired. Further, those
sale-deeds related to small areas of land compared to the vast area
acquired in the instant case. Therefore, this Court is of the firm
opinion that the Reference Court was also not justified in placing
reliance on the sale-deeds relating to the lands of village Harij
for the purpose of determining the market value of the lands
acquired from village Vansa.
Once,
the two previous awards relied upon by the claimants and the
sale-deeds relating to the lands of village Harij are taken out of
consideration, the Court is left with the previous award of village
Roda for the purpose of determining the market value of the lands
acquired in the instant case. It may be mentioned that the previous
award of the Reference Court relating to the lands of village Roda
is relied upon by the appellants themselves and it is the case of
the appellants that the market value of the lands acquired in the
instant case should be determined on the basis of said previous
award. Therefore, the said previous award will have to be taken into
consideration for the purpose of determining the market value of the
lands acquired in the instant case.
The
previous award of the Reference Court relating to the lands of
village Roda is produced at Ex.32. It indicates that the lands of
village Roda, Taluka: Harij, District: Mehsana, were acquired for
public purpose of Dharoi Canal Project pursuant to publication of
Notification issued under Section 4(1) of the Act in the official
gazette on January 4, 1993. Therein, the Special Land Acquisition
Officer had awarded compensation to the claimants at the rate of
Rs.1.95 ps. per sq.mt. though the claim of the claimants was for
Rs.30/- per sq.mt. Therefore, the claimants had sought References.
Accordingly, References were made to the District Court, Mehsana,
where they were registered as Land Acquisition Reference
Nos.2586/1996 to 2602/1996. The Reference Court, by judgment and
award dated August 27, 2001, awarded additional amount of
compensation to the claimants at the rate of Rs.16/- per sq.mt.
During the course of hearing of the Appeals, Ms.Krina P.Calla,
learned Assistant Government Pleader, has produced xerox copy of
judgment of the High Court dated April 1, 2005, delivered by the
Division Bench in First Appeals No.3216/2004 to 3226/2004 with First
Appeals No.845/2005 to 850/2005, for perusal of the Court. It
indicates that the award of the Reference Court rendered in Land
Acquisition Reference Nos.2586/1996 to 2602/1996 was challenged by
the Special Land Acquisition Officer before the High Court and the
High Court, by its judgement dated April 1, 2005, reduced the amount
of compensation payable to the claimants of village Roda to Rs.12/-
in all. Thus, on the basis of the previous award of the Reference
Court, as modified by the High Court, relating to the lands of
village Roda, this Court is of the opinion that the claimants in the
instant case would be entitled to compensation at the rate of
Rs.12/- per sq.mt.
The
record further shows that Notification under Section 4(1) of the Act
for acquiring the lands of village Roda was published in the
official gazette on January 4, 1993, whereas in the instant case,
Notification for acquiring the lands of village Vansa was published
in the official gazette on April 5, 2002. Thus, there is no manner
of doubt that there was a gap of about ten years between publication
of Notifications issued under Section 4(1) of the Act for acquiring
the lands from the two villages. The Supreme Court has laid down in
catena of reported decisions that if there is time gap between
publication of Notifications issued under Section 4(1) of the Act,
the claimant would be entitled to reasonable rise in price of lands
at the rate of 10% p.a. If rise in price at the rate of 10% p.a. is
granted to the claimants in the instant case, this Court is of the
opinion that the claimants would be entitled to compensation at the
rate of Rs.24/- per sq.mt. in all. The above discussion would
indicate that the claimants are entitled to compensation at the rate
of Rs.24/- per sq.mt. in all and not at the rate of Rs.49.50 ps. per
sq.mt. as held by the Reference Court. The Appeals filed by the
State Government will have to be accordingly allowed.
For
the foregoing reasons, the Appeals partly succeed. The common
judgment and award dated July 1, 2005, rendered by the learned Joint
District Judge, 3rd Fast Track Court, Patan, in Land
Acquisition Reference Case No.13/2004 to 22/2004, awarding
compensation to the claimants at the rate of Rs.49.50 per sq.mt. in
all is hereby modified and it is held that the claimants would be
entitled to compensation in all at the rate of Rs.24/- per sq.mt.
for their acquired lands. The other benefits granted by the impugned
award are not interfered with at all and are hereby confirmed. The
Appeals are accordingly partly allowed. There shall be no orders as
to costs. The Registry is directed to draw the decree in terms of
this Judgment as expeditiously as possible.
(J.M.Panchal,
J.)
(Smt.Abhilasha
Kumari, J.)
(sunil)
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