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FA/4910/2008 10/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4910 of 2008
With
FIRST
APPEAL No. 4911 of 2008
To
FIRST
APPEAL No. 4914 of 2008
With
CIVIL
APPLICATION No. 11981 of 2008
To
CIVIL
APPLICATION No. 11985 of 2008
=========================================================
SPECIAL
LAND ACQUISITION OFFICER & 1 - Appellant(s)
Versus
SAMJUBEN
KOHYAJI KHANT - Defendant(s)
=========================================================
Appearance
:
MR
NEERAJ SONI AGP for
Appellant(s) : 1 - 2.
MR SHETH for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 13/10/2008
ORAL
ORDER
1. Heard
learned advocate Mr.Neeraj Soni for the appellants and learned
advocate Mr.Sheth for respondent in each appeal.
2. In
the present appeals, the appellants have challenged the award passed
by Reference Court – 5th additional Senior Civil Judge,
Ahmedabad Rural, District Court at Mirzapur in Land Acquisition Case
No.169 to 174 of 2004 dated 2.5.2007. The Reference Court has awarded
compensation of Rs.39/- per sq. mtr. for the acquired land as an
additional compensation over and above the compensation already
awarded by the Land Acquisition Officer.
3. Learned
AGP Mr.Soni raised contention that Reference Court has committed
gross error in considering the sale instance of the land for the
period 1996 to 2000 but, Section – 4 notification is dated
28.11.2000. The Reference Court should not rely upon the earlier
decision where the notification under Section 4 was dated 30.1.1991
and therefore, the Reference Court has not properly appreciated the
sale instance in light of earlier notification which was prior in
point of time. Accordingly, the Reference Court has committed error
in deciding the compensation of Rs.39/- per sq. mtr. He relied upon
the decision of Apex Court in case of Shaji Kuriakose and Anr. v.
Indian Oil Corporation Ltd and others reported in (2001) 7 SCC 650,
more particularly Para.3 of the said decision and according to him,
the Apex Court has considered the comparable sales method of
valuation is preferred than other method of valuation of land such
as capitalisation of net income method or expert opinion method. The
Apex Court has also considered that comparable sales method of
valuation is preferred because it furnishes the evidence for
determination of the market value of the acquired land at which a
willing purchaser would pay for the acquired land if it had been sold
in the open market at the time of issue of notification under Section
4 of the Act. He also raised contention that learned Judge ought to
have seen that while passing the award under Section 11 of the Act,
the Special Land Acquisition Officer has taken into account 28 sale
instances of same village i.e. Amarajina Muvada and ultimately,
relied upon sale instance in respect of Survey No.861/1 paiki 746,
747, 921 and 879/2. He also raised contention that Exh.22 recently
relied by Reference Court where claimant has produced the award /
judgment in case of Land Acquisition Case No.3 of 1995 passed in
respect of same village and in that case, Section -4 notification was
issued on 30.1.1991. He also submitted that Reference Court is
supposed to record the reasoning if different view is taken from one
taken by authority below. He relied upon the decision of Apex Court
in case of ONGC Ltd. v. Sendhabhai Vastram Patel and others reported
in 2005 (6) SCC 454. Therefore, according to him, the Reference Court
has not properly appreciated the documentary evidence produced by
appellants on record.
4. Learned
advocate Mr.Sheth opposing the submissions made by learned AGP
Mr.Soni submitted that Reference Court has rightly examined the
matter and rightly relied upon the earlier decision given by
Reference Court and for that, according to him, no error is committed
by Reference Court. Therefore, he submitted that appeals are required
to be dismissed. He has also placed reliance on the decision of Apex
Court in case of Bhim Singh and others v. State of Haryana and anr.
Reported in AIR 2003 SC 4382 and the decision of this Court in case
of Kanjibhai Haridas Patel & ors. v. State of Gujarat reported in
2003 (1) GLR 689.
5. I
have considered the submissions made by learned advocates for the
respective parties and also perused the award passed by Reference
Court. It is necessary to be considered the undisputed facts between
the parties as referred in Para.10, which is quoted as under :
?S10. I
have heard the argument of ld. Advocate for the applicant at length
and also heard the argument of ld. DGP and the ld. Advocate for the
opponent No.2 respectively. I have also carefully gone through the
pleadings and evidence on record. On scrutinizing the contents of the
pleading and evidence adduced by the parties and documentary evidence
produced on record, it appears that the following facts are not in
dispute between the parties :
1. The
claimant were the owners of the land acquired by the State
Government.
2. The
land in question are situated in the sim of village Amraji na Muvada,
Tal. Dahegam, Dist. Ahmedabad.
3. The
State Government has acquired the land for public purpose i.e. for
the construction of Narmada canal.
4. The
State government had published the notification under Section 4 on
28.11.2000 and under Section 6 on 18.5.2001.
5. The
owners as well as the interested persons were served with the notices
under Section 9 of the Act by Land Acquisition Officer.
6. The
Land Acquisition Officer has fixed the value of the land for the
compensation at Rs.5.25 per square meter in respective cases by his
award dated 14.5.2003.
7. The
claimant had filed their objection against it and requested to refer
the case under Section 18 of the Land Acquisition Act.
8. This
Court has jurisdiction to entertain the present reference.?S
6. The
Reference Court has considered the copy of index which is at Exh.33
to 39 but, the facts mentioned in the copy of award and further they
relied upon the copy of map, exh.40 and on perusal of the same, it
transpires that earlier Survey Number of same village which was
acquired earlier and the acquired survey number of the present case
is adjoining to each other. This is the relevancy to be considered by
the Reference Court while considering the index, Exh.33 to 39 and the
map, Exh.40 which proved the facts that earlier award passed by
Reference Court in respect to the adjoining land of the same village.
Exh.22 is the award of Reference Court rendered in Reference Case
No.3 of 1995 which has been relied upon by Reference Court in which
the Reference Court has considered that earlier award passed by the
Reference Court after considering the evidence on record and fixed
the price at Rs.23/- per sq. mtr. as a total compensation, against
which no appeal was preferred by the opponents against the judgment
and award of the Reference court. The Reference Court has also
considered the different date of notification of Section 4 in
Reference Case No.3 of 1995, Section-4 notification is dated
30.1.1991 and in present case, same is dated 28.11.2000. Therefore,
both the notifications were published on the different date but, for
the same purpose. The deposition of the claimant suggests that
earlier acquired land of village Amraji na muvada and acquired land
of present case are just adjoining to each other and there is no
minor distance amongst them and from the copy of map produced by
either side. Therefore, the Reference Court has examined the matter
and relevant observations are made in Para.13 to 18, which are quoted
as under :
?S13. I
have gone through the above cited judgment in which judgment the
Hon’ble High Court has very clearly established that ?Smarket value
of the land is determined by taking into consideration by the amount
awarded in respect of the similar land acquired in adjoining village
some years before than in that case increase in the amount by 10%
p.a. For each year by way of application’ which means that if there
is a time lag between the notification, then in that case the land
owners whose land is subsequently acquired are entitled to get
reasonable rise in the price. Now in view of the verdict of the
judgment and considering the fact that in the present case there is a
time gap of only 10 years and nine months. In my view the present
claimant are also entitled to get reasonable rise to certain extent
in the price. It appears from the award that the compensation awarded
by the Special Land Acquisition Officer is highly inadequate. Thus
looking to the locations of the acquired land, its fertility, the
purpose for which the lands are acquired, the date of publication of
notification under Section 4 and the judgment passed by the Reference
Court in other Reference cases of same village, and also considering
the deposition of the witness, I assess the market value of the land
in question at the rate of Rs.44.25 per sq. mtr. for the acquired
land and as the Land Acquisition Officer has already awarded Rs.5.25
per sq. mtr. to the present claimants in respective cases and
therefore, according to my opinion, the fair and just amount of
Rs.39.00 per sq. mtr. as additional compensation should be awarded
then it will meet the end of justice and hence I award Rs.39.00 as
additional compensation.
14. In
view of the decision given by the Hon’ble Bombay High Court in a case
of Jashvantbhai v. Government of Goa reported in AIR 1987 Bombay
pg.214 that ?Sthe amended provision of the Section 23(1A) is
applicable to all cases pending in any forum on 30.4.82 and the
claimant is entitled to recover 12% of the market value in addition
to the enhanced rate of interest and a solatium for the period
commencing from the date of notification u/s.4(1) of the Act till the
date of takingover the possession or the date of award whichever is
earlier??. Thus, in view of this verdict, I am of the opinion that
the present claimants are entitled to get the additional compensation
u/s 23(1A) of the Act at the rate of 12% of the market value in
addition to the enhanced rate of interest and solatium for the period
commencing from the date of notification u/s 4(1) of the Act till the
date of takingover the possession or the date of award whichever is
earlier.
15. Further
more, in a case of Bhagsing v/s Union Territory, Chandigarh reported
in AIR 1985 SC 1576, the Hon’ble Apex Court of the Country has very
clearly given the verdict that ?Sthe amended provision of Section
23(2) is applicable to all proceedings relating to compensation
pending on the date of commencement of the amended act or filed
subsequent thereto whether before the L.A. Collector or before the
Court or the Hon’ble High Court or even before the Hon’ble Supreme
Court?? and further more in a case of Govindbhai Dajibhai v/s.
Special Land Acquisition Officer and others reported in AIR 1995
Gujarat 200 the Hon’ble Gujarat High Court has very clearly held that
the ?Sclaimant are entitled to solatium u/s. 23(2) of the Act at the
rate of 30% on the excess amount awarded by the Court??. Thus in
view of these decision, I am of the opinion that the claimant of the
present cases are also entitled to solatium u/s.23(2) of the Act at
the rate of 30% on the excess amount awarded.
16. The
claimants are also entitled to get interest on aggregate amount of
compensation including solatium in view of the judgment reported in
2002 (2) GLH 435 in the case of Special Land Acquisition Officer v/s.
Kodarbhai Jenabhai and others in which the Hon’ble High Court of
Gujarat has held relying on the judgment by Apex Court in case of
?SSundar v/s. Union of India (2001, SOL case No.551) that ?Sonce it
is held as it inevitably must be that the solatium provided for under
Section 23(2) of the Act forms an integral and statutory part of the
compensation awarded to a landowner, then from the plain terms of
Section 28 of the act, it would be evident that the interest is
payable on the compensation awarded and not merely on the market
value of the land. Indeed the language of S.28 does not even remotely
refer to market value alone and in terms talks of compensation or the
sum equivalent thereto. The interest awardable under Section 28
therefore would include within its ambit both the market value and
the statutory solatium. It would be thus evident that the provisions
of section 28 in terms warrant and authorize the grant or interest on
solatium as well?? and hence the person entitled to the compensation
awarded in also entitled to get interest on the aggregate amount
including solatium and therefore, in view of the judgment of the Apex
Court the claimants are entitled to get interest on solatium.
17. The
claimants are also entitled to get the interest at the rate of 9%
p.a. For the period of one year fro the date of taking over the
possession of the acquired land and thereafter at the rate of 15%
p.a. Till the amount is fully paid or deposited. Therefore, I answer
issue No.1 and 2 accordingly.
18. In
view of my findings on the above issue Nos.1 and 2 and reasons
recorded therein, the present Land Reference Cases deserve to be
allowed partly and the claimants are entitled to reserve compensation
at Rs.73.00 per sq. mtr. as total market value and as the land
acquisition officer has already awarded compensation of Rs.5.25 per
sq. mtr. and therefore, the present claimants are only entitled to
receive compensation of Rs.39.00 per sq. mtr. as additional
compensation. Thus, the applicants succeed in the matter and as such
they are entitled to get the relief and award as directed in the
final order hereunder and therefore, in answer to Issue No.3, in the
result, I propose to pass the final order as follows:??
7. The
Reference Court has considered the market value of the land as
determined by taking into consideration by the amount awarded in
respect of the similar land acquired in adjoining village some years
before than in that case increase in the amount by 10% p.a. for each
year by appreciation which means that if there is a time lag between
the notification, then in that case the land owners whose land is
subsequently acquired are entitled to get reasonable rise in the
price. Therefore, the Reference Court has assessed the market value
of the land in question @ 44.25 per square meter for the acquired
land and Land Acquisition Officer has already awarded Rs.5.25 per sq.
mtr. to the present claimant in respective cases. Therefore, after
adjusting the aforesaid amount, the Reference Court has considered
Rs.39/- per sq. mtr. as an additional compensation which should be
awarded which would meet the end of justice.
8. After
considering the observations made by Reference Court as well as
considering the submissions made by both the learned advocates,
according to my opinion, the Reference Court has rightly examined the
matter while keeping in mind the earlier award in Reference Case No.3
of 1995 and also rightly considered the index, Exh.33 to 39 and the
map, Exh.40 and come to conclusion that earlier survey number of the
same village which was acquired earlier and acquired survey number of
the present case is adjoining to eachother. Therefore, the reasonable
rise has been rightly given by the Reference Court and for that, the
Reference Court has not committed any error which requires
interference by this Court.
8.1 Recently,
the Apex Court has taken the view in case of Jivabhai Ambalal &
Ors. v. Special L.A.Q. And Ors reported in 2008 (3) GCD 1885 (SC).
Relevant observations of the aforesaid decision are in Para.3 and 4
which are quoted as under :
?S3. For
determining the market value, the Reference Court relied on its own
judgment and award dated 3.12.1999 in regard to acquisition of
similar lands for the same purpose in the same village under previous
Notification dated 2.1.1986, which had attained finality. In that
case, the collector had awarded Rs.2.50 per sq.m and the Reference
Court increased it by Rs.52 per sq.m thus awarding Rs.54.50 per sq.m.
In this case, the Reference Court held that the market value for the
land acquired in 1989, should be determined with reference to the
market value determined with reference to the acquisition of
2.1.1986, by increasing the value by 10% per year. However, the
Reference Court made a mistake in assuming that the amount awarded in
respect of the acquisition in 1986 was Rs.52/- per sq.m instead of
Rs.54.50 per sq.m. It also wrongly calculated the increase for only
two years, though the gap was more than three years. The reference
court thus calculated the market value as Rs.62.50 per sq.m by taking
the base rate as Rs.52 and adding Rs.10.50 towards 20% escalation.
The High Court held that as there was no evidence to show that there
was an annual increase in market value by 10%, there was no need to
interfere with the determination of market value. It however modified
the award of the reference court, in regard to interest.
4. This
Court, in General Manager, ONGC vs. Rameshbhai Jivanbhai Patel (Civil
Appeal No.5192 of 2002 decided on 31.7.2008) has accepted that
generally there is an annual increase of 10% to 15% in the market
value of lands in urban and semi-urban areas and 5% to 7.5% in the
market value of lands in rural areas. In this case, as the acquired
land as per evidence was hardly at a distance of 7 km from Karol, and
8 km from Gandhinagar and about 1 km from a residential township, it
has to be treated as semi-urban area. If the market value is to be
calculated in accordance with principles in Rameshbhai Jivanbhai
Patel (Supra) by applying a cumulative rate of 10% per annum for
three years over the market value of Rs.54.50 in 1986, the market
value will be Rs.72.60 per sq.m. However, as the appellants have
restricted their claim to Rs.71/- per sq.m before the High Court, we
increase the compensation from Rs.62.50 per sq.m to Rs.71 per sq.m.??
9. Learned
AGP Mr.Niraj Soni has placed reliance in case of Shaji Kuriakose and
anr. v. Indian Oil Corporation Ltd and others reported in (2001) 7
SCC 650 wherein the Apex Court has observed that however considering
the comparable Sales Method of valuation of land for fixing the
market value of the acquired land is not always conclusive. There are
certain factors which are required to be fulfilled and on fulfillment
of those factors, the compensation can be awarded according to
valuation of the land reflected in the sales. The Apex Court has
considered certain factors that sale must be a genuine transaction;
that the deed must have been executed; that the land covered by the
sale must be in the vicinity of the acquired land and that the land
covered by the sales must be similar to the acquired land and that
the size of plot of the land covered by the sales be comparable to
the land acquired. Therefore, looking to the facts of this case, the
method which has been adopted by the Reference Court cannot be
considered to unreasonable in light of facts that index and map both
have been considered which established that earlier land which was
acquired is completely adjoining land to the present case where the
land has been acquired. Therefore, according to my opinion, aforesaid
judgment is not helpful to the learned AGP Mr.Soni. Therefore,
according to my opinion, no error is found from the record and
reasoning given by the Reference Court cannot be considered to be
perverse and baseless. Therefore, there is no substance in the
present appeals. Accordingly, present appeals are dismissed.
10. As
the First Appeal Nos.4910 to 4914 of 2008 are dismissed, no order is
necessitated in Civil Application Nos.11981 to 11985 of 2008.
Accordingly, Civil Application Nos.11981 to 11985 are disposed of.
(H.K.RATHOD,J.)
(vipul)
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