{"id":87542,"date":"2008-10-13T00:00:00","date_gmt":"2008-10-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/special-vs-samjuben-on-13-october-2008"},"modified":"2018-08-06T05:59:08","modified_gmt":"2018-08-06T00:29:08","slug":"special-vs-samjuben-on-13-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/special-vs-samjuben-on-13-october-2008","title":{"rendered":"Special vs Samjuben on 13 October, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Special vs Samjuben on 13 October, 2008<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/4910\/2008\t 10\/ 12\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 4910 of 2008\n \n\nWith\n\n\n \n\nFIRST\nAPPEAL No. 4911 of 2008\n \n\nTo\n\n\n \n\nFIRST\nAPPEAL No. 4914 of 2008 \n\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 11981 of 2008\n \n\nTo\n\n\n \n\nCIVIL\nAPPLICATION No. 11985 of 2008\n \n \n=========================================================\n\n \n\nSPECIAL\nLAND ACQUISITION OFFICER & 1 - Appellant(s)\n \n\nVersus\n \n\nSAMJUBEN\nKOHYAJI KHANT - Defendant(s)\n \n\n=========================================================\n\n \n\nAppearance\n: \nMR\nNEERAJ SONI AGP  for\nAppellant(s) : 1 - 2. \nMR SHETH for Defendant(s) :\n1, \n=========================================================\n\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\nCORAM\n\t\t\t\t: \n\t\t\t\t\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nHONOURABLE\n\t\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\t\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 13\/10\/2008 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mr.Neeraj Soni for the appellants and learned
\nadvocate Mr.Sheth for respondent in each appeal.\n<\/p>\n
2.\tIn
\nthe present appeals, the appellants have challenged the award passed
\nby Reference Court – 5th additional Senior Civil Judge,
\nAhmedabad Rural, District Court at Mirzapur in Land Acquisition Case
\nNo.169 to 174 of 2004 dated 2.5.2007. The Reference Court has awarded
\ncompensation of Rs.39\/- per sq. mtr. for the acquired land as an
\nadditional compensation over and above the compensation already
\nawarded by the Land Acquisition Officer.\n<\/p>\n
3.\tLearned
\nAGP Mr.Soni raised contention that Reference Court has committed
\ngross error in considering the sale instance  of the land for the
\nperiod 1996 to 2000 but, Section – 4 notification is dated
\n28.11.2000. The Reference Court should not rely upon the earlier
\ndecision where the notification under Section 4 was dated 30.1.1991
\nand therefore, the Reference Court has not properly appreciated the
\nsale instance in light of earlier notification which was prior in
\npoint of time. Accordingly, the Reference Court has committed error
\nin deciding the compensation of Rs.39\/- per sq. mtr. He relied upon
\nthe decision of Apex Court in case of Shaji Kuriakose and Anr. v.
\nIndian Oil Corporation Ltd and others<\/a> reported in (2001) 7 SCC 650,
\nmore particularly Para.3 of the said decision and according to him,
\nthe Apex Court has considered the comparable sales method of
\nvaluation is preferred  than other method of valuation of land such
\nas capitalisation of net income method or expert opinion method. The
\nApex Court has also considered that comparable sales method of
\nvaluation is preferred because it furnishes the evidence for
\ndetermination of the market value of the acquired land at which a
\nwilling purchaser would pay for the acquired land if it had been sold
\nin the open market at the time of issue of notification under Section
\n4 of the Act. He also raised contention that learned Judge ought to
\nhave seen that while passing the award under Section 11 of the Act,
\nthe Special Land Acquisition Officer has taken into account 28 sale
\ninstances of same village i.e. Amarajina Muvada and ultimately,
\nrelied upon sale instance in respect of Survey No.861\/1 paiki 746,
\n747, 921 and 879\/2. He also raised contention that Exh.22 recently
\nrelied by Reference Court where claimant has produced the award \/
\njudgment in case of Land Acquisition Case No.3 of 1995 passed in
\nrespect of same village and in that case, Section -4 notification was
\nissued on 30.1.1991. He also submitted that Reference Court is
\nsupposed to record the reasoning if different view is taken from one
\ntaken  by authority below. He relied upon the decision of Apex Court
\nin case of ONGC Ltd. v. Sendhabhai Vastram Patel and others reported
\nin 2005 (6) SCC 454. Therefore, according to him, the Reference Court
\nhas not properly appreciated the documentary evidence produced by
\nappellants on record.\n<\/p>\n
4.\tLearned
\nadvocate Mr.Sheth opposing the submissions made by learned AGP
\nMr.Soni submitted that Reference Court has rightly examined the
\nmatter and rightly relied upon the earlier decision given by
\nReference Court and for that, according to him, no error is committed
\nby Reference Court. Therefore, he submitted that appeals are required
\nto be dismissed. He has also placed reliance on the decision of Apex
\nCourt in case of Bhim Singh and others v. State of Haryana and anr.
\nReported in AIR 2003 SC 4382 and the decision of this Court in case
\nof Kanjibhai Haridas Patel & ors. v. State of Gujarat<\/a> reported in
\n2003 (1) GLR 689.\n<\/p>\n
5.\tI
\nhave considered the submissions made by learned advocates for the
\nrespective parties and also perused the award passed by Reference
\nCourt.  It is necessary to be considered the undisputed facts between
\nthe parties as referred in Para.10, which is quoted as under :\n<\/p>\n
?S10.\t\tI
\nhave heard the argument of ld. Advocate for the applicant at length
\nand also heard the argument of ld. DGP and the ld. Advocate for the
\nopponent No.2 respectively. I have also carefully gone through the
\npleadings and evidence on record. On scrutinizing the contents of the
\npleading and evidence adduced by the parties and documentary evidence
\nproduced on record, it appears that the following facts are not in
\ndispute between the parties :\n<\/p>\n
1.\tThe
\nclaimant were the owners of the land acquired by the State
\nGovernment.\n<\/p>\n
2.\tThe
\nland in question are situated in the sim of village Amraji na Muvada,
\nTal. Dahegam, Dist. Ahmedabad.\n<\/p>\n
3.\tThe
\nState Government has acquired the land for public purpose i.e. for
\nthe construction of Narmada canal.\n<\/p>\n
4.\tThe
\nState government had published the notification under Section 4 on
\n28.11.2000 and under Section 6 on 18.5.2001.\n<\/p>\n
5.\tThe
\nowners as well as the interested persons were served with the notices
\nunder Section 9 of the Act by Land Acquisition Officer.\n<\/p>\n
6.\tThe
\nLand Acquisition Officer has fixed the value of the land for the
\ncompensation at Rs.5.25 per square meter in respective cases by his
\naward dated 14.5.2003.\n<\/p>\n
7.\tThe
\nclaimant had filed their objection against it and requested to refer
\nthe case under Section 18 of the Land Acquisition Act.\n<\/p>\n
8.\tThis
\nCourt has jurisdiction to entertain the present reference.?S<\/p>\n
6.\tThe
\nReference Court has considered the copy of index which is at Exh.33
\nto 39 but, the facts mentioned in the copy of award and further they
\nrelied upon the copy of map, exh.40 and on perusal of the same, it
\ntranspires that earlier Survey Number of same village which was
\nacquired earlier and the acquired survey number of the present case
\nis adjoining to each other. This is the relevancy to be considered by
\nthe Reference Court while considering the index, Exh.33 to 39 and the
\nmap,  Exh.40 which proved the facts that earlier award passed by
\nReference Court in respect to the adjoining land of the same village.
\nExh.22 is the award of Reference Court rendered in Reference Case
\nNo.3 of 1995 which has been relied upon by Reference Court in which
\nthe Reference Court has considered that earlier award passed by the
\nReference Court after considering the evidence on record and fixed
\nthe price at Rs.23\/- per sq. mtr. as a total compensation, against
\nwhich no appeal was preferred by the opponents against the judgment
\nand award of the Reference court. The Reference Court has also
\nconsidered  the different date of notification of Section 4 in
\nReference Case No.3 of 1995, Section-4 notification is dated
\n30.1.1991 and in present case, same is dated 28.11.2000. Therefore,
\nboth the notifications were published on the different date but, for
\nthe same purpose. The deposition of the claimant suggests that
\nearlier acquired land of village Amraji na muvada and acquired land
\nof present case are just adjoining to each other and there is no
\nminor distance amongst them and  from the copy of map produced by
\neither side. Therefore, the Reference Court has examined the matter
\nand relevant observations are made in Para.13 to 18, which are quoted
\nas under :\n<\/p>\n
?S13.\t\tI
\nhave gone through the above cited judgment in which judgment the
\nHon’ble High Court has very clearly established that ?Smarket value
\nof the land is determined by taking into consideration by the amount
\nawarded in respect of the similar land acquired in adjoining village
\nsome years before than in that case increase in the amount by 10%
\np.a. For each year by way of application’ which means that if there
\nis a time lag between the notification, then in that case the land
\nowners whose land is subsequently acquired are entitled to get
\nreasonable rise in the price. Now in view of the verdict of the
\njudgment and considering the fact that in the present case there is a
\ntime gap of only 10 years and nine months. In my view the present
\nclaimant are also entitled to get reasonable rise to certain extent
\nin the price. It appears from the award that the compensation awarded
\nby the Special Land Acquisition Officer is highly inadequate. Thus
\nlooking to the locations of the acquired land, its fertility, the
\npurpose for which the lands are acquired, the date of publication of
\nnotification under Section 4 and the judgment passed by the Reference
\nCourt in other Reference cases of same village, and also considering
\nthe deposition of the witness, I assess the market value of the land
\nin question at the rate of Rs.44.25 per sq. mtr. for the acquired
\nland and as the Land Acquisition Officer has already awarded Rs.5.25
\nper sq. mtr. to the present claimants in respective cases and
\ntherefore, according to my opinion, the fair and just amount of
\nRs.39.00 per sq. mtr. as additional compensation should be awarded
\nthen it will meet the end of justice and hence I award Rs.39.00 as
\nadditional compensation.\n<\/p>\n
14.\t\tIn
\nview of the decision given by the Hon’ble Bombay High Court in a case
\nof Jashvantbhai v. Government of Goa reported in AIR 1987 Bombay
\npg.214 that ?Sthe amended provision of the Section 23(1A) is
\napplicable to all cases pending in any forum on 30.4.82 and the
\nclaimant is entitled to recover 12% of the market value in addition
\nto the enhanced rate of interest and a solatium for the period
\ncommencing from the date of notification u\/s.4(1) of the Act till the
\ndate of takingover the possession or the date of award whichever is
\nearlier??. Thus, in view of this verdict, I am of the opinion that
\nthe present claimants are entitled to get the additional compensation
\nu\/s 23(1A) of the Act at the rate of 12% of the market value in
\naddition to the enhanced rate of interest and solatium for the period
\ncommencing from the date of notification u\/s 4(1) of the Act till the
\ndate of takingover the possession or the date of award whichever is
\nearlier.\n<\/p>\n
15.\t\tFurther
\nmore, in a case of Bhagsing v\/s Union Territory, Chandigarh reported
\nin AIR 1985 SC  1576, the Hon’ble Apex Court of the Country has very
\nclearly given the verdict that ?Sthe amended provision of Section
\n23(2) is applicable to all proceedings relating to compensation
\npending on the date of commencement of the amended act or filed
\nsubsequent thereto whether before the L.A. Collector or before the
\nCourt or the Hon’ble High Court or even before the Hon’ble Supreme
\nCourt?? and further more in a case of Govindbhai Dajibhai v\/s.
\nSpecial Land Acquisition Officer and others reported in AIR 1995
\nGujarat 200 the Hon’ble Gujarat High Court has very clearly held that
\nthe ?Sclaimant are entitled to solatium u\/s. 23(2) of the Act at the
\nrate of 30% on the excess amount awarded by the Court??. Thus in
\nview of these decision, I am of the opinion that the claimant of the
\npresent cases are also entitled to solatium u\/s.23(2) of the Act at
\nthe rate of 30% on the excess amount awarded.\n<\/p>\n
16.\t\tThe
\nclaimants are also entitled to get interest on aggregate amount of
\ncompensation including solatium in view of the judgment reported in
\n2002 (2) GLH 435 in the case of Special Land Acquisition Officer v\/s.
\nKodarbhai Jenabhai and others in which the Hon’ble High Court of
\nGujarat has held relying on the judgment by Apex Court in case of
\n?SSundar v\/s. Union of India (2001, SOL case No.551) that ?Sonce it
\nis held as it inevitably must be that the solatium provided for under
\nSection 23(2) of the Act forms an integral and statutory part of the
\ncompensation awarded to a landowner, then from the plain terms of
\nSection 28 of the act, it would be evident that the interest is
\npayable on the compensation awarded and not merely on the market
\nvalue of the land. Indeed the language of S.28 does not even remotely
\nrefer to market value alone and in terms talks of compensation or the
\nsum equivalent thereto. The interest awardable under Section 28
\ntherefore would include within its ambit both the market value and
\nthe statutory solatium. It would be thus evident that the provisions
\nof section 28 in terms warrant and authorize the grant or interest on
\nsolatium as well?? and hence the person entitled to the compensation
\nawarded in also entitled to get interest on the aggregate amount
\nincluding solatium and therefore, in view of the judgment of the Apex
\nCourt the claimants are entitled to get interest on solatium.\n<\/p>\n
17.\t\tThe
\nclaimants are also entitled to get the interest at the rate of 9%
\np.a. For the period of one year fro the date of taking over the
\npossession of the acquired land and thereafter at the rate of 15%
\np.a. Till the amount is fully paid or deposited. Therefore, I answer
\nissue No.1 and 2 accordingly.\n<\/p>\n
18.\t\tIn
\nview of my findings on the above issue Nos.1 and 2 and reasons
\nrecorded therein, the present Land Reference Cases deserve to be
\nallowed partly and the claimants are entitled to reserve compensation
\nat Rs.73.00 per sq. mtr. as total market value and as the land
\nacquisition officer has already awarded compensation of Rs.5.25 per
\nsq. mtr. and therefore, the present claimants are only entitled  to
\nreceive compensation of Rs.39.00 per sq. mtr. as additional
\ncompensation. Thus, the applicants succeed in the matter and as such
\nthey are entitled to get the relief and award as directed in the
\nfinal order hereunder and therefore, in answer to Issue No.3, in the
\nresult, I propose to pass the final order as follows:??\n<\/p>\n
7.\tThe
\nReference Court has considered the market value of the land as
\ndetermined by taking into consideration by the amount awarded in
\nrespect of the similar land acquired in adjoining village some years
\nbefore than in that case increase in the amount by 10% p.a. for each
\nyear by appreciation which means that if there is a time lag between
\nthe notification, then in that case the land owners whose land is
\nsubsequently acquired are entitled to get reasonable rise in the
\nprice. Therefore, the Reference Court has assessed the market value
\nof the land in question @ 44.25 per square meter for the acquired
\nland and Land Acquisition Officer has already awarded Rs.5.25 per sq.
\nmtr. to the present claimant in respective cases. Therefore, after
\nadjusting the aforesaid amount, the Reference Court has considered
\nRs.39\/- per sq. mtr. as an additional compensation  which should be
\nawarded which would meet the end of justice.\n<\/p>\n
8.\tAfter
\nconsidering the observations made by Reference Court as well as
\nconsidering the submissions made by both the learned advocates,
\naccording to my opinion, the Reference Court has rightly examined the
\nmatter while keeping in mind the earlier award in Reference Case No.3
\nof 1995 and also rightly considered the index, Exh.33 to 39 and the
\nmap, Exh.40  and come to conclusion that earlier survey number of the
\nsame village which was acquired earlier and acquired survey number of
\nthe present case is adjoining to eachother. Therefore, the reasonable
\nrise has been rightly given by the Reference Court and for that, the
\nReference Court has not committed any error which requires
\ninterference by this Court.\n<\/p>\n
8.1\tRecently,
\nthe Apex Court has taken the view in case of Jivabhai Ambalal &
\nOrs. v. Special L.A.Q. And Ors reported in 2008 (3) GCD 1885 (SC).
\nRelevant observations of the aforesaid decision are in Para.3 and 4
\nwhich are quoted as under :\n<\/p>\n
?S3.\tFor
\ndetermining the market value, the Reference Court relied on its own
\njudgment and award dated 3.12.1999 in regard to acquisition of
\nsimilar lands for the same purpose in the same village under previous
\nNotification dated 2.1.1986, which had attained finality. In that
\ncase, the collector had awarded Rs.2.50 per sq.m and the Reference
\nCourt increased it by Rs.52 per sq.m thus awarding Rs.54.50 per sq.m.
\nIn this case, the Reference Court held that the market value for the
\nland acquired in 1989, should be determined with reference to the
\nmarket value determined with reference to the acquisition of
\n2.1.1986, by increasing the value by 10% per year. However, the
\nReference Court made a mistake in assuming that the amount awarded in
\nrespect of the acquisition in 1986 was Rs.52\/- per sq.m instead of
\nRs.54.50 per sq.m. It also wrongly calculated the increase for only
\ntwo years, though the gap was more than three years. The reference
\ncourt thus calculated the market value as Rs.62.50 per sq.m by taking
\nthe base rate as Rs.52 and adding Rs.10.50 towards 20% escalation.
\nThe High Court held that as there was no evidence to show that there
\nwas an annual increase in market value by 10%, there was no need to
\ninterfere with the determination of market value. It however modified
\nthe award of the reference court, in regard to interest.\n<\/p>\n
4.\tThis
\nCourt, in General Manager, ONGC vs. Rameshbhai Jivanbhai Patel (Civil
\nAppeal No.5192 of 2002 decided on 31.7.2008) has accepted that
\ngenerally there is an annual increase of 10% to 15% in the market
\nvalue of lands in urban and semi-urban areas and 5% to 7.5% in the
\nmarket value of lands in rural areas. In this case, as the acquired
\nland as per evidence was hardly at a distance of 7 km from Karol, and
\n8 km from Gandhinagar and about 1 km from a residential township, it
\nhas to be treated as semi-urban area. If the market value is to be
\ncalculated in accordance with principles in Rameshbhai Jivanbhai
\nPatel (Supra) by applying a cumulative rate of 10% per annum for
\nthree years over the market value of Rs.54.50 in 1986, the market
\nvalue will be Rs.72.60 per sq.m. However, as the appellants have
\nrestricted their claim to Rs.71\/- per sq.m before the High Court, we
\nincrease the compensation from Rs.62.50 per sq.m to Rs.71 per sq.m.??\n<\/p>\n
9.\tLearned
\nAGP Mr.Niraj Soni has placed reliance in case of  Shaji Kuriakose and
\nanr. v. Indian Oil Corporation Ltd and others reported in (2001) 7
\nSCC 650 wherein the Apex Court has observed that however considering
\nthe comparable Sales Method of valuation of land for  fixing the
\nmarket value of the acquired land is not always conclusive. There are
\ncertain factors which are required to be fulfilled and on fulfillment
\n of those factors, the compensation can be awarded according to
\nvaluation of the land reflected in the sales. The Apex Court has
\nconsidered certain factors that sale must be a genuine transaction;
\nthat the deed must have been executed; that  the land covered by the
\nsale must be in the vicinity of the acquired land and that the land
\ncovered by the sales must be similar to the acquired land and that
\nthe size of plot of the land covered by the sales be comparable to
\nthe land acquired.  Therefore, looking to the facts of this case, the
\nmethod which has been adopted by the Reference Court cannot be
\nconsidered to unreasonable in light of facts that index and map both
\nhave been considered which established that earlier land which was
\nacquired is completely adjoining land to the present case where the
\nland has been acquired. Therefore, according to my opinion, aforesaid
\njudgment is not helpful to the learned AGP Mr.Soni. Therefore,
\naccording to my opinion, no error is found from the record and
\nreasoning given by the Reference Court cannot be considered to be
\nperverse and baseless. Therefore, there is no substance in the
\npresent appeals. Accordingly, present appeals are dismissed.\n<\/p>\n
10.\tAs
\nthe First Appeal Nos.4910 to 4914 of 2008 are dismissed, no order is
\nnecessitated in Civil Application Nos.11981 to 11985 of 2008.
\nAccordingly, Civil Application Nos.11981 to 11985 are disposed of.\n<\/p>\n
(H.K.RATHOD,J.)
\n(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Special vs Samjuben on 13 October, 2008 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-87542","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nSpecial vs Samjuben on 13 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/special-vs-samjuben-on-13-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Special vs Samjuben on 13 October, 2008 - 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