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FA/1153/2002 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No.1153 of 2002
To
FIRST
APPEAL No.1172 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 ?
YES
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
=====================================================
SPECIAL
LAND ACQUISITION OFFICER - Appellant(s)
Versus
LILAVATIBEN
KODAR RANCHHOD & 4 - Defendant(s)
=====================================================
Appearance
:
MS MOXA THAKKAR, AGP for
Appellant(s) : 1,
MR MEHUL S SHAH for Defendant(s) : 1 - 5.
MR
SURESH M SHAH for Defendant(s) : 1 -
5.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 04/07/2011
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
As
all the appeals arise from the common judgment and order passed by
the Reference Court, they are being considered by this common
judgment.
The
relevant facts of the case are that for the project of Dadhod
Outside City Diversion Road, lands located at Dahod Kasba outskirts
of Dahod city within the municipal area were to be acquired under
the Land Acquisition Act, 1894 (hereinafter to be referred to as
‘the Act’). Notification under Section 4 of the Act was published on
11.10.1985 and notification under section 6 of the Act was published
on 05.09.1986. Thereafter award was passed by the Land
Acquisition Officer under section 11 of the Act on 26.06.1988
whereby, on account of different fertility, topography and location
of the lands, he awarded Rs.8/sq.mtr. for the fertile land,
Rs.6/sq.mtr. for Jirayat land and Rs.4/sq.mtr. for the other
remaining land. As the lands owners/original claimants were not
satisfied with the said compensations, they raised dispute under
section 18 of the Act and demanded compensation of Rs.70/sq.mtr. and
subsequently enhanced the demand to Rs.250/sq.mtr. All such
disputes were referred to the Reference Court for adjudication being
Land Acquisition Case Nos.283/89 to 304/89. The Reference Court, at
the conclusion of the references, awarded the additional
compensation at Rs.45/sq.mtr. with other statutory benefits of
increase in the market value, solatium and interest. It is under
these circumstances, the present group of appeals before this Court.
We
have considered the judgment and the reasons recorded by the
Reference Court as
well as
record and proceedings and we have also heard Ms.Moxa
Thakkar, learned A.G.P. for the appellants and Mr.Mehul Shah for the
original claimants/respondents.
The
perusal of the reasons recorded by the Reference Court show that the
main reasoning begins from Paragraph No.16 of the judgment and the
Reference Court has broadly discarded the evidence of sale
instances, including one which was produced at Exh.72 for the land,
admeasuring 534.38 sq. mtrs. wherein the price was of
Rs.93.156/sq.mtr., on the ground that such sale instance was for
non-agricultural land used for residential area. However, the
another pertinent aspect is that the
Reference Court,
while arriving at the finding for the additional compensation at
Rs.45/sq.mtr. has not elaborated the reasons for arriving at the
said figure of Rs.45/-sq.mtr. Therefore, we find that even if the
Reference Court was
to arrive at the figure of Rs.45/-sq.mtr. as the additional
compensation, it was expected from the
Reference Court to
examine the facts and figures as available, including the sale
instances or otherwise and thereafter to record the conclusion for
the quantum of the additional amount
of compensation. Unfortunately, the said aspect is not available in
the impugned judgment of the Reference Court.
However,
as the present appeals are continuous proceedings of the reference
to be adjudicated by the Reference Court and we have called for the
record and proceedings, we find that the only sale instance, which
could be considered for the purpose of tracing the market value of
the lands, is the document Exh.72 dated 20.06.1983, which is for the
land bearing Survey No.754/4 paiki and the area of which is
admeasuring 534.38 sq.mtrs. Another aspect is that the sale deed is
prior to the notification under section 4 of the Act in the
present case and, therefore, the same could be taken into
consideration by the Reference Court. We are inclined to observe the
aforesaid because there was no other satisfactory evidence either to
applying the yield method or of any other awards passed by any
competent court for the land of the adjoining area in the matter of
land acquisition. It is also required to be taken into consideration
that merely because the sale instances are of the lands, which are
non-agricultural lands, the same itself will not be a sufficient
ground to discard the evidence unless the Reference Court finds
that the sale instances are not of the lands of the comparable area.
The area in the present acquisition varies from 151 sq.mtrs. to 5059
sq.mtrs. and if the holding of each claimant is to be considered
vis-a-vis the area under acquisition, the land acquired of about 40%
of the claimants is not exceeding 700-800 sq.mtrs. Under these
circumstances, we find that it was a case to consider the sale
instances even after considering the character of the land of the
sale instance as non-agricultural land. At this stage, we may refer
to the decision of this Court in case of State of Gujarat,
Through Special Land Acquisition Officer & Anr., Vs. Amraji
Mohanji Thakore, reported in 2010 (3) G.L.H. 447 wherein there
was sale instance of more or less similar area and, therefore, the
court applied the principle of 30% deduction while comparing the
price of non-agricultural land but the relevant aspect is that in
the said decision this Court extracted the earlier view of this
Court in case of Sardar Sarovar Vs. Patel Haribhai Manilal,
in First Appeal No.2832 of 2006 to 2843 of 2006 decided on
09.07.2007 and it was recorded as under:
“14. Before
we proceed to examine the other aspects, we may profitably extract
the views of this Court (Coram: J.M.Panchal & Smt. Abhilasha
Kumari, J.J.) in the case of Sardar Sarovar Narmada Nigam
Limited v. Patel Haribhai Manilal (First Appeal No.2832 of 2006 to
2843 of 2006) decided on 9.7.2007.
In the said case, the sale
instances considered by the Special Land Acquisition Officer were not
proved and there was sale instance for allotment of the land by the
Government to Anarde Foundation and the land under acquisition was
also at Village Modhera. When the question arose for determination
of the market price of the land in question therein, for the purpose
of awarding compensation by the Reference Court, this Court observed
as under at paragraph 12 :-
“12. The
principles governing determination of market value of lands acquired
are well-settled. In Special Land Acquisition Officer,
Davangere v. P.Veerabhadrappa etc. etc. – AIR 1984 SC 774,
the Supreme Court has emphasized that the function of the Court in
awarding compensation under the Act is to ascertain the market value
of the land on the date of notification under Section 4(1) of the
Act. What is ruled therein is that the methods of valuation are (1)
opinion of experts, (2) the prices paid within a reasonable time in
bona fide transactions of purchase or sale of the lands acquired or
of the lands adjacent to those acquired and possessing similar
advantages and (3) a number of years’ purchase of the actual or
immediately prospective profits of the lands acquired. The Supreme
Court has cautioned that normally, the method of capitalizing the
actual or immediately prospective profits or the rent of a number of
years’ purchase should not be resorted to if there is evidence of
comparable sales or other evidence for computation of the market
value. Applying these principles to the facts of the instant case,
this Court finds that the claimants did not lead evidence of an
expert nor enhanced compensation was claimed on yield basis to
enable the Court to determine the market value of the lands
acquired. The only relevant pieces of evidence produced by the
claimants in the instant case are the sale-deeds relating to the
grant of Government lands to Anarde Foundation at Ex.13 and to Umiya
Kadva Patidar Trust at Ex.17 which will now be examined by this
Court.
Exhibit 13 is the order of
Collector, Mehsana, dated December 4, 1994, whereby land
admeasuring 501.66 sq.mts. forming part of Survey No.1119 of village
Modhera was granted to Anarde Foundation pursuant to an application
made by it for allotment of land for construction of office premises
for development programme which was undertaken by the said
Foundation in rural areas. A perusal of Ex.13 reveals that the land
allotted to Anarde Foundation vide order dated December 4, 1994, was
non-agricultural land. Initially, this land was allotted at the rate
of Rs.40/- per sq.mt. However, it was stipulated in the said order
that the market value of the land on the date of order, i.e.
December 4, 1994, would be one which would be determined by the
Deputy Town Planner and the price so determined would be considered
to be relevant market value. The record reveals that the market
value of the land allotted to Anarde Foundation was determined at
Rs.65/- per sq.mt., which is quite evident from the order dated
September 21, 1998, passed by the Collector, Mehsana, produced at
Ex.14.
The
other sale instance relied upon by the claimants is to be found at
Ex.17, which relates to sale of Government land to Umiya Kadva
Patidar Trust. Exhibit 17 further shows that the Collector passed an
order in this regard on October 16, 1998 and the market value of the
land admeasuring 186 sq.mts. of part of Survey No.1245 of village
Modhera, Taluka: Becharaji, was determined at the rate of Rs.160/-
per sq.mt. On re-appreciation of evidence on the record, this Court
finds that the notification under Section 4(1) of the Act in the
instant case was published in the official gazette on July 27, 1995,
whereas the sale instance at Ex.17 regarding allotment of Government
land to Umiya Kadva Patidar Trust was effected after publication of
said notification and therefore, post notification instance should
not be taken into consideration while determining the market value
of the lands acquired as it is common knowledge that the prices of
lands in the vicinity would escalate after
the notification under Section 4(1) of the Act is published.”
15. Further in the very decision,
when the Court had to consider the market value, keeping in view the
sale instances of the allotment of the land by the Government to the
aforesaid Trust, it was observed, thus, at paragraphs 17 and 18 :-
“17.In
the ultimate analysis, this Court is of the opinion that the
allotment of land vide order dated December 4, 1994, produced at
Ex.13 passed by the Collector, Mehsana, is the only relevant piece
of evidence which would enable the Court to determine the market
value of the acquired lands. It is well-settled that for
determination of compensation for a large area, rate fixed for
smaller plot can be taken into consideration when there is absence
of other material evidence (See: Ravinder Narain and
another v. Union of India (2003)4 SCC 481).
Therefore, this Court proposes to consider effect of Ex.13. As
noticed earlier, the order allotting land dated October 16, 1998
(Ex.17) cannot be considered since it was passed after the issuance
of the notification under Section 4 of the Act in the present
acquisition proceedings. Exhibit 13, which is the order regarding
grant of Government land to Anarde Foundation indicates that the
lands which were subject matter of grant were non-agricultural
lands. Moreover, the piece of land was small compared to the
acquired lands. Therefore, appropriate deductions will have to be
made on account of the fact that the acquired lands in the instant
case were agricultural lands and large tracts of lands were
acquired.
It
is a settled principle of law that where the acquired lands are
agricultural lands, their valuation would differ to a considerable
extent from the lands which are non-agricultural lands and that
where a large area of land is subject matter of acquisition, certain
deductions will have to be made if the market price of the acquired
lands has to be determined on the basis of rate fixed for small
plots. Moreover, some amount will have to be deducted towards
development charges. After
making deductions on the above counts, the market value of the lands
acquired will have to be determined. Keeping the above principles in
mind, this Court is of the opinion that interest of justice would be
served if 40% from the market price of the land which was subject
matter of sale vide Ex.13 as on December 4, 1994, is deducted under
the heads of smallness of plot, non-agricultural land and
development charges collectively while determining the market value
of the lands acquired in the instant cases. The market value of the
land granted vide order dated December 4, 1994, has been determined
at Rs.65/- per sq.mt. After deducting 40% from this amount, the
amount that comes is Rs.39/- per sq.mt. The said sale took place
vide order dated December 4, 1994, whereas the notification under
Section 4 of the Act for the acquisition of lands of village Modhera
was published on July 27, 1995. Therefore, there is a gap of about
six months between the two. If 5% rise in price of land is given,
the amount comes to Rs.41/- per sq.mt. which is the total amount of
compensation to which the claimants are entitled. Thus, this Court
is of the opinion that the claimants would be entitled to
compensation at the rate of Rs.41/- per sq.mt. and not at the rate
of Rs.54.57 ps. per sq.mt. as held by the Reference Court.
18. In view of the above
discussion, the Appeals will have to be partly allowed by holding
that the claimants in the instant cases would be entitled to
compensation in all at the rate of Rs.41/- per sq.mt. and to that
extent, the Award rendered by the Reference Court will have to be
modified.”
16. The aforesaid shows two
aspects; one is that the sale instance or the price at which the
Government has allotted the land can be taken into consideration by
the Reference Court at the time of assessing the market value for the
purpose of awarding compensation under the Act, and the second is the
deduction to be made keeping in view the size of the plot allotted by
the Government and the land under acquisition, the nature of use, the
locality and other factors namely; that agricultural use,
non-agricultural use and others. It is true that in the said case,
this Court found it proper to deduct 40% of the amount from the price
at which the Government had allotted the land to the said Trust, but
it appears that certain aspects, which did not arise for
consideration in the said matter, do arise for consideration in the
present group of matters, which shall be dealt with hereinafter.”
We find
that the observations made in the above referred decision would
squarely apply to the facts of the present case keeping in view
that 60% of the lands under acquisition are of a much larger
area and only 40% of the lands under acquisition are not exceeding
about 700-800 sq.mtrs. Therefore, if the aforesaid sale
instance at Exh.72 is taken into consideration and 40% deduction is
made in the said sale price of Rs.93/sq.mtr. (rounded figure), 40%
of the said amount would come to Rs.37.20/sq.mtr., which if deducted
from Rs.93/sq.mtr. the net figure would come to Rs.55.80/sq.mtr. and
if rounded off it would come to Rs.56/sq.mtr. It is also required to
be taken into consideration that as observed earlier in respect of
60% of the lands, which are under acquisition, the area is much
larger and, therefore, in addition to the deduction of N.A.
factor area is the difference between agricultural and
non-agricultural lands, the additional deduction would be required
to be made qua the large difference of the size of the lands, which
are to be acquired and the size of the plot which is referred to in
the sale instance. Therefore, we find that considering the facts and
circumstances out of the amount of Rs.56/sq.mtr. there should be
additional deduction of 20% towards the size difference of the
plots and if the largest plot is considered, it is about 9-10 times
more than the area of the land shows in the sale deed. So 20% of the
said amount would come to Rs.11.20/sq.mtr. and if deducted from
Rs.56/- it would come to Rs.44.80/- and if the said figure is
rounded off, it would come to Rs.45/sq.mtr. As against the same the
Reference Court has awarded Rs.45/sq.mtr. as the additional
compensation. Under the circumstances, we find that the decision of
the Reference Court for awarding Rs.45/sq.mtr. as the additional
compensation for the land in question, which is having best quality
viz. fertile land, could not be said as erroneous.
However,
the same cannot be the additional compensation for the lands which
are classified as Jirayat land and the land of the other remaining
category for which the Special Land Acquisition Officer, on account
of the distinguishing character and the fertility of the land, has
awarded compensation at Rs.6/sq.mtr. for Jirayat land and
Rs.4/sq.mtr. for the other remaining land. We have gone through the
award passed by the Special Land Acquisition Officer and even in the
judgment or in the evidence there is no material produced on behalf
of the claimants to show that the character of all the lands was the
same and in spite of the said aspect, the Special Land Acquisition
Officer has awarded different amount of compensation. Under these
circumstances, we find that the distinction in the nature of the
lands viz. fertile land or Jirayat land or remaining land could not
have been ignored by the Reference Court
and the said aspect is required to be taken into consideration for
the purpose of deciding the additional compensation.
As such
if the distinction is considered as it is there has to be a
proportionate deduction in the compensation of Rs.45/sq.mtr. taking
into consideration the amount of Rs.6/sq.mtr. and Rs.4/sq.mtr. as
awarded by the Special Land Acquisition Officer for the Jirayat and
other remaining lands after taking the basis of the fertile land for
which the Special Land Acquisition Officer has awarded the
compensation at Rs.8/sq.mtr. and the proportionate deduction thereof
but Mr.Shah learned Counsel appearing for the original
claimants/respondents contended that all the lands were located
within Dahod and, therefore, if this Court has already reduced the
price towards N.A. factor and the valuation of the agricultural land
has further reduced on account of the difference of size of the sale
instances and the lands under acquisition, the said aspect would not
assume much importance since all the lands are within Dahod city. He
further submitted that therefore, this Court may not further
distinguish the land for the purpose of additional compensation.
We find
that the aspect of inclusion of all the lands in municipal area is
one of the positive characters which is required to be taken into
consideration while distinguishing the market value of the lands
viz. fertile, Jirayat and other remaining lands but, at the same
time, it cannot be said in absolute that even if the lands are
located within the municipal area, the value of Jirayat and
other remaining lands would be the same or at par with the fertile
land. Therefore, keeping in view the peculiar circumstances that all
lands are located within the municipal area, we find that the
difference as was made by the Special Land Acquisition Officer
between the fertile and Jirayat lands and other remaining land can
be reduced @ 50% and the amount of additional compensation can be
decided. If the difference between the fertile and Jirayat lands is
reduced to 50%, proportionately such amount for Jirayat land would
come to Rs.39.37/sq.mtr., if rounded off it would come to
Rs.40/sq.mtr. taking the basis of Rs.7/sq.mtr. as against
Rs.6/sq.mtr. assessed by the Special Land Acquisition Officer after
considering the base of Rs.8/sq.mtr. for the fertile land. In the
same manner if the different is proportionately to be considered for
the other remaining land it would come to Rs.28.12/sq.mtr. and if
rounded off it would come to Rs.28/sq.mtr. taking the base of
Rs.5/sq.mtr. as against Rs.4/sq.mtr. assessed by the Special Land
Acquisition Officer after considering the base of Rs.8/sq.mtr. for
the fertile land. Under the above circumstances, the judgment and
award of the Reference Court would be required to be modified.
As
regards the other benefits awarded by the Reference Court of the
increase in the market value, solatium and interest are concerned,
they are all statutory in nature and, therefore, the same are not
required to be interfered with, save and except to the extent that
all such amount shall get proportionately reduced on account of
reduction of the principal amount of compensation in respect of
Jirayat and other remaining lands but there will not be any change
for the fertile land wherein the compensation is fixed at
Rs.45/sq.mtr.
In view
of the above discussion, the judgment and award passed by the
Reference Court, so far as awarding additional compensation of
Rs.45/sq.mtr. for the fertile land is concerned, the same is not
interfered with. However, the judgment and award of the
Reference Court so far it relates to awarding additional
compensation for the Jirayat and other remaining lands exceeding
the amount of Rs.40/sq.mtr. and Rs.28/sq.mtr. is quashed and set
aside and it is declared that the additional compensation for
Jirayat land shall be Rs.40/sq.mtr. and for other remaining land
shall be Rs.28/sq.mtr. Other statutory benefits would also be
available to the lands owners on the aforesaid principal amount of
compensation as awarded by the Reference
Court with the proportionate reduction thereof.
Appeals
are partly allowed to the aforesaid extent. Considering the facts
and circumstances, there shall be no order as to costs.
Learned
advocate for the respondents-claimants submitted that the
compensation, if not deposited, may be directed to be deposited
within some time. Considering the facts and circumstances,
if the compensation is not deposited as per the present judgment and
order, the same shall be deposited within a period of 08 (eight)
weeks from the receipt of copy of this judgment.
Sd/-
[JAYANT
PATEL,J]
Sd/-
[
R.M.CHHAYA, J]
***
Bhavesh*
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