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FA/3506/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3506 of 2008
With
CROSS
OBJECTION (Stamp) No.79 of 2005
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SPL.LAQ
OFFICER AND ANOTHER
Versus
VALIBHAI
S/O RASULBEN AND ANOTHER
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Appearance
:
MS TRUSHA PATEL, AGP for
Appellant(s) : 1 - 2.
None for Defendant(s) : 1, 1.2.1, 1.2.2,
1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.2.8, 1.2.9, 1.3.1, 1.3.2, 1.3.3,
1.3.4, 1.3.5, 1.3.6, 1.3.7,1.3.8
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 07/08/2008
ORAL
ORDER
1. By
way of this appeal, the appellants have challenged judgment and award
dated 27-2-2002 passed by 2nd Extra Assistant Judge and
Special Judge (LAR), Ahmedabad Rural in Land Acquisition Case
Nos.640/1995 to 652/1995, whereby additional compensation of Rs.79
per sq.mtr. was awarded over and above the amount awarded by Special
Land Acquisition Officer.
2. By
filing Cross-Objections claimants have claimed that they should have
been awarded interest from the date on which the possession of the
land was acquired and not from the date of publication of
notification issued under Section 4 of the Act and that they should
also have been awarded interest on the amount awarded under Section
23 (1-A) of the Act.
3. At
the outset it is submitted that the issue involved in this appeal
would be squarely
covered by the decision of Division Bench of this
Court dated 10th May 2007 passed in First Appeal No.3101
of 2004 and allied matters, wherein this Court has observed as under:
?S8. The
contention that in view of considerable distance between the lands
acquired from Village: Telav and the lands acquired from Village:
Shela, the previous award of the Reference Court relating to the
lands of Village: Shela should not have been relied upon by the
Reference Court for the purpose of determining the market value of
the lands acquired from Village: Telav, cannot be accepted. On
appreciation of the evidence adduced by the parties, the Reference
Court has held in paragraph 23 of the impugned award that there is a
very little distance between Village: Telav and Village: Shela. On
re-appreciation of the evidence adduced by the parties, this Court is
of the opinion that the finding recorded by the Reference Court that
last survey number of the lands acquired from Village: Telav was just
adjoining the first survey number of the lands acquired from Village:
Shela is eminently just and could not be demonstrated to be erroneous
by the learned Assistant Government Pleader. It is well to remember
that the canal constructed under Narmada Project is coming from
Village: Godhavi to Village: Shela after which it is entering into
Village: Telav, which means that the lands acquired from Village:
Telav were situated quite near the lands of Village: Shela. Relevancy
of the previous award of the Reference Court relating to the lands of
Village: Shela stands firmly established by the testimony of witness
Momin Gulam Ahemad, who was examined on behalf of the claimants at
Exhibit 41. It was asserted by this witness in his testimony that the
lands of Village: Telav were adjoining to the lands of Village:
Shela. It was also mentioned by the said witness that even Village:
Sanand was situated just near the lands, which were acquired from
Village: Telav. This assertion made by the witness for the claimants
could hardly be disputed by the Acquiring Authorities during the
course of cross examination of this witness. On appreciation of the
evidence adduced before it, the Reference Court has made following
pertinent observations in paragraph 31 of the impugned judgment:
Thus,
the evidence on record indicates that the lands which were subject
matter of previous awards of Shela, as discussed hereinabove, are in
the vicinity and in reasonable proximity to the lands acquired in the
present case. As observed earlier, a fertility and yield is also
similar, but at the same time the advantage which the village Shela
has got is also having same type of advantage to the village Telav
because from the middle of the village Telav, Surkhej-Sanand Viramgam
highway is passing and Sanand Railway Station and market Yard is only
1 km away from Telav and therefore there is also development in
village Telav and also considering the fact that there is a Scheme of
Sephrani bungalows and biggest water park viz. Goyal Water World, the
Telav has also same type of advantage and considering this type of
advantage its potential value can be considered and can be placed on
the same footing as of Shela and therefore in my opinion reliance can
be placed on the award of the village Shela which is also based on
the judgment of village Godhavi confirmed by the Hon’ble High court.
As discussed hereinabove, village Shela is just adjoining to the
Surkhej-Viramgam highway and also considering the fact that the
boundaries of village Shela and Telav are touching to each other and
considering the fact that Viramgam highway is passing from the middle
of the Telav and therefore in all these circumstances I am of the
opinion that it is required to place reliance on the previous award
of village Shela for the purpose of determination of the market value
of the land acquired in the present case.??
The
learned Assistant Government Pleader could not point out to this
Court as to how the findings recorded by the Reference Court in
paragraph 31, which are quoted above, are erroneous.
9. On
re-appreciation of the evidence adduced by the parties, this Court is
of the opinion that the Reference Court was justified in placing
reliance upon the previous award of the Reference Court relating to
the lands of Village: Shela for the purpose of determining the market
value of the lands acquired in the instant cases. It is well settled
that previous award of the Reference Court relating to the lands of a
village, which has attained finality, can be relied upon for the
purpose of determining market value of similar lands acquired from
the adjoining village.
On
re-appreciation of the evidence adduced by the parties, this Court is
of the opinion that the correct findings of facts have been recorded
in paragraph 31 of the judgment, with which this Court fully concurs.
10. The
contention that no development had taken place in Village: Telav and,
therefore, the previous award of the Reference Court relating to the
lands of Village: Shela should not have been made the basis for the
purpose of determining the market value of the lands acquired from
Village: Telav, is devoid of merits. It may be stated that the
witness for the claimants has stated in terms that his Village: Telav
at the relevant point of time was fully developed and had facilities
such as; telephone, primary schools, high schools, dairy, cooperative
societies, agricultural cooperative societies, etc. What was asserted
by the witness was that in his village, biggest water-park of Asia
was situated and that the lands were plotted for the purpose of
residences. It was mentioned by the witness that Village: Telav was
situated at a distance of 1 Kilometre away from Sanand Railway
Station whereas the market-yard was also at a distance of 1 Kilometre
away from the village. The assertion made by the witness that the
lands of Village: Telav were costly than the lands of Village: Shela
could not be disputed by the Acquiring Authorities during the course
of his cross-examination. Thus, there is no manner of doubt that the
lands acquired from Village: Telav had potential value and could have
been used either for industrial purpose or commercial purpose or
residential purpose. Once the potentiality of the lands situated at
Village: Telav is taken into consideration, the compensation awarded
to the claimants at the rate of Rs.85/- per square metre on the basis
of the previous award of the Reference Court relating to the lands of
Village: Shela wherein the claimants were awarded compensation at the
rate of Rs.85/- per square metre, cannot be considered to be on
higher side so as to warrant interference of this Court in the
present group of appeals.
11. It
may be stated that though ample opportunity was afforded to the
Acquiring Authorities to adduce the evidence to refute the claim made
by the claimants, no evidence was led to establish that the claimants
were not entitled to enhanced compensation on the basis of the
previous award of the Reference Court relating to the lands of
Village: Shela. Except producing indexes indicating the instances of
sale, which had taken place in the last five years, no evidence could
be produced by the Acquiring Authorities to meet the case advanced by
the claimants. Though the witness examined on behalf of the Acquiring
Authorities stated that the relevant factors were taken into
consideration by the Special Land Acquisition Officer before
determining the market value of the lands acquired from Village:
Telav, relevancy of the particulars mentioned in the indexes could
not be stated or proved by the said witness.
12. On
re-appreciation of the evidence adduced by the parties, this Court is
of the opinion that correct findings of facts have been recorded by
the Reference Court to which well-settled principles of law have been
applied. The lengthy judgment running into roughly 31 pages has dealt
with each and every aspect of the matter and rightly determined the
market value of the lands acquired from Village: Telav. The learned
Assistant Government Pleader could not persuade this Court to take a
view different than the one taken by the Reference Court on
appreciation of the evidence adduced before it. Therefore, the
appeals, which lack merits, deserve to be dismissed.
13. Coming
to the Cross Objections filed by the claimants, this Court finds that
the claim made by the claimants that they should have been awarded
interest from the date of taking over possession of the acquired
lands, which is prior to the date of publication of notification
issued under Section 4(1) of the Act cannot be accepted in view of
the decision of the Supreme Court in R.L.Jain (D) by L.R. vs.
D.D.A. & Ors., AIR 2004 SC 1904.
However,
the claim advanced by the claimants in their Cross-Objections that
they should have been awarded interest on the amount found payable
under Section 23(1-A) of the Act deserves to be upheld in view of the
decision rendered in Sunder vs. Union of India, 2001 (3) G.L.H.
446 wherein the Supreme Court has held that the person
entitled to compensation awarded is also entitled to get interest on
the aggregate amount including solatium. Therefore, the
Cross-Objections filed by the claimants will have to be accepted in
part.
14. For
the foregoing reasons, all the appeals fail and are dismissed. The
Cross Objections filed by the claimants are accepted in part and it
is held that the claimants would be entitled to get interest on the
aggregate amount including the amount awarded under Section 23(1-A)
of the Act. There shall be no orders as to costs. The Registry is
directed to draw decree in terms of this judgment immediately.??
4. Since
matter of same group was decided by this Court vide judgment dated
10-5-2007 passed in First Appeal No.3101 of 2004, this appeal will
also be governed by the observations made in said order.
Accordingly, this appeal is dismissed. However, Cross-Objections
filed by the claimants are partly allowed by holding that the
claimants will be entitled to get interest on the aggregate amount
including the amount awarded under Section 23 (1-A) of the Act. There
shall be no order as to costs.
(K.S.Jhaveri,
J.)
*malek
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