Research › Search › Judgment

Gujarat High Court · body

2004 DIGILAW 673 (GUJ)

STATE OF GUJARAT v. HEIRS OF MOHANBHAI K PATEL

2004-10-01

D.H.WAGHELA, R.K.ABICHANDANI

body2004
D. H. WAGHELA, J. ( 1 ) THIS group of appeals and the cross-objections filed therein arise from the common judgment and order in several land reference cases, the main case being Land Reference Case No. 685 of 1988, whereby additional compensation was awarded for the lands acquired from the adjoining survey numbers within the municipal limits of Gondal town. The lands were acquired for the purpose of construction of quarters for State Reserve Police. The relevant notification under section 4 of the Land Acquisition Act, 1894 (for short, "the Act") was published on 30. 4. 1981 and 23. 7. 1981 and the notification under section 6 of the Act was published on 24. 4. 1984. The Land Acquisition Officer made common award dated 3. 4. 1986 awarding compensation at the rates varying from Rs. 7. 50 to Rs. 11. 00 per sq. mtr. for different parcels of land covered by eleven different cases. Upon references being preferred under section 18 of the Act, the Court has, by the impugned judgment, awarded compensation at the rates of Rs. 65/- and Rs. 75/- with deduction of 1/3rd amount. ( 2 ) IT is the case of the claimants that the compensation awarded to them was inadequate and the prevailing market prices of the lands were not properly determined insofar as the potentiality, fertility, price of the surrounding lands and the instances of sale of comparable lands were not properly taken into consideration. The Court has, in the impugned judgment, relied upon the documents at Exs. 23, 24 and 25 as also the documents at Exs. 36, 37 and 38 relating to the lands bearing survey No. 112 which was acquired as the basis for fixing the market price at about Rs. 65/- to Rs. 75/- per sq. mtr. The Court observed: "it is an established principle of law that the market price of the lands are increasing day by day and this well-founded factual assumption could be rebutted only by adducing satisfactory evidence to the contrary. The Court can take into consideration the purpose for which the land is acquired and for which the land is being used in future". It is held that the lands bearing survey Nos. The Court can take into consideration the purpose for which the land is acquired and for which the land is being used in future". It is held that the lands bearing survey Nos. 110, 109, 104 and 103 are situated at some distance from the land bearing survey No. 112, but keeping in mind the increasing market price of the land and fast development, it can be said that other land would be developed in future. Since upon conversion of the land to non-agricultural use one-third of the land was likely to be lost for the purpose of public use in future, one-third deduction was ordered from the market price. The only other aspect in controversy is regarding separate compensation at Rs. 10,000/- awarded for each well. It is noted in the impugned judgment that the area of the acquired land is not fully developed, that the claim of Rs. 150/- per sq. mtr. was not established, that sufficient deductions should be made in fixing proper market price of the large parcels of land, that the lands are situated after kharaba (waste) land situated towards northern side of the land bearing survey No. 1 (sic) and that most of the lands were situated in an interior area behind the existing S. R. P. quarters. ( 3 ) IT was submitted by the learned Advocate General, appearing for the appellant-State, that the sale instances of small plots of the same land evidenced by Exs. 36, 37 and 38, which were relied upon for fixing the market price, were in fact agreements to sale executed just before the notification under section 4 of the Act and were apparently created for the purpose of showing higher market price of the lands. He submitted that even as the lands were within the municipal limits of Gondal, they were agricultural lands far from the main area and main roads of the town. That the residential area near the lands in question was a backward area. It was also submitted that the other transactions of sale relied upon by the claimants were in respect of small plots of developed societies and the sale deeds or agreements to sale in respect of the plots of the same land under acquisition were void under section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948. ( 4 ) IT was submitted by the learned advocate Mr. ( 4 ) IT was submitted by the learned advocate Mr. Hathi on behalf of the original claimants that the four instances of sale of the parts of the same land were duly proved and even disregarding the well known wide fluctuations in the market price of the land in the years 1977 to 1981, the price at which the local authorities had sold or put up for sale the plots of land in the adjoining residential society provided a good and reliable indicator of the prevailing market price. He also submitted that the lands in question were proposed to be converted to non-agricultural use and the proceedings were initiated as early as in 1967. The efforts in that regard were given up by forbears of some of the claimants due to harassment and bureaucratic approach of the revenue authorities. However, the fact remained that within 100 metres of the land bearing survey No. 112, across the road, are fully developed residential societies and potential of the lands for non-agricultural use could not be disputed. He further submitted that the valuation report, according to which the market price was assessed at Rs. 40/- in the year 1977, and the assessment orders passed on that basis (Ex. 62 and 63) could not be disregarded. It was, therefore, submitted that the market price of the lands in question was required to be fixed at around Rs. 100/per sq. mtr. and the cross-objections were required to be partly allowed in view of the compulsory nature of acquisition. ( 5 ) THERE is no doubt about the fact that the Land Acquisition Officer had taken into consideration 23 sale instances in fixing the market price at the rates varying from Rs. 7. 50 to Rs. 11/- per sq. mtr. and the sale instances comparable in terms of area, size of the plot, agricultural use and the dates of sale were not available. However, such instances as were remotely comparable showed transactions at the rates varying from Rs. 7. 92 to Rs. 41. 60 per sq. mtre. A small plot of land of 75. 65 sq. mtres. in the nearby residential area of Bhagwatipara, which was converted to non-agricultural use in 1962, appeared to have been sold on 6. 4. 1981 at Rs. 66/- per sq. mtr. 7. 92 to Rs. 41. 60 per sq. mtre. A small plot of land of 75. 65 sq. mtres. in the nearby residential area of Bhagwatipara, which was converted to non-agricultural use in 1962, appeared to have been sold on 6. 4. 1981 at Rs. 66/- per sq. mtr. The parcels of land under acquisition were measured in Hectres and Ares and running into thousands of square metres and yet compensation for the irrigated agricultural land was awarded in terms of rates per sq. mtre. apparently because the lands are in the vicinity of residential area. However, the sale deeds at Exs. 36, 37 and 38 in respect of small plots of the same lands are just agreements to sell small plots admeasuring 250 to 418 sq. mtrs and were made as if the lands were converted to non-agricultural use and were made a few months before publication of the notification under section 4 and, therefore, they were not reliable pieces evidence for arriving at the proper market price. The agreement to sell dated 10. 10. 1980 at Ex. 33 is in respect of a part of the land bearing survey No. 112/3 itself and purported to sell the land at Rs. 75,000/- per "vigha" which is equivalent to 2378. 32 sq. mtrs. Accordingly, the land with better frontage and of higher value was agreed to be sold by some of the claimants themselves six months before the acquisition at the rate of approximately Rs. 30/- per sq. mtr. in contemplation of it being permitted to be converted to non-agricultural use. Therefore, on the basis of this piece of evidence produced and relied upon by the claimants themselves, compensation could not have been claimed at higher rates. ( 6 ) IT was, however, contended on behalf of the claimants that fixation of higher market price or upset price by the municipality in respect of small plots in the adjoining residential area as evidenced by Exs. 22, 24, 25, and 28 and the sale instances of other agricultural lands where sale of agricultural lands at lower rates was disapproved for the purpose of stamp duty provided a good basis for fixing higher market price of the lands in question. He relied upon the judgment of the Supreme Court in THAKARSIBHAI DEVJIBHAI AND OTHERS v. EXECUTIVE ENGINEER, GUJARAT [ AIR 2001 SC 2424 ] to submit that even distance of 2 kms. He relied upon the judgment of the Supreme Court in THAKARSIBHAI DEVJIBHAI AND OTHERS v. EXECUTIVE ENGINEER, GUJARAT [ AIR 2001 SC 2424 ] to submit that even distance of 2 kms. from developed area cannot by itself derogate from the potentiality of the land in question and largeness of the lands under acquisition cannot be considered by clubbing together holding of each claimant. Relying upon the judgment of the Supreme Court in BHAGWATHULA SAMANNA AND OTHERS v. SPECIAL TAHSILDAR AND LAND ACQUISITION OFFICER, VISAKHAPAPTNAN MUNICIPALITY [ air 1992 SC 2298 ], it was submitted that even in the vast area there may be land which is fully developed having all amenities and can be situated in an advantageous position. If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications etc. then the principle of deduction simply for the reason that it is part of the large tract acquired may not be justified. The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not an absolute proposition and in given circumstances it would be permissible to take into account the price fetched by small plots of land if the land is capable of being used for the purpose for which the smaller plots are used. In the facts of that case, however, it was satisfactorily shown on the evidence on record that the land had facilities of road and other amenities and was adjoining to a developed colony, which is not the case in the present appeals. It was also submitted, relying upon a judgment of this Court in UDAYAN GIRIJAPRASAD and OTHERS v. THE SPECIAL LAND ACQUISITION OFFICER [1976 (17) G. L. R. 668] that the admissions made by the claimants with regard to the market price of the acquired property under the Wealth Tax Act could be taken as substantive piece of evidence. As against that, in the facts of the present cases, as admitted by the claimants in the deposition at Ex. 45, the valuation report by a registered valuer was got prepared at the instance of the claimants for the taxation purposes years after the acquisition, apparently with the impact of reducing the tax liability as revealed by the assessment orders dated 26. 12. 1991 at Exs. 45, the valuation report by a registered valuer was got prepared at the instance of the claimants for the taxation purposes years after the acquisition, apparently with the impact of reducing the tax liability as revealed by the assessment orders dated 26. 12. 1991 at Exs. 62 and 63. As for the deduction of one-third of the market price on account of difference between the market price of plots in fully developed residential area and the agricultural land, it has to be noted that, even after such deduction, the compensation awarded by the impugned judgment exceeds Rs. 38/- per sq. mtr. in all cases. ( 7 ) AS against the above submissions on behalf of the claimants, the learned Advocate General relied upon the judgment of the Supreme Court in O. JANARDHAN REDDY and OTHERS v. THE SOL. DY. COLLECTOR. L. A. UNIT IV, LMD, KARIMNAGAR [ JT 1994 (6) SC 366] to submit that irrigation wells cannot have a value apart from the value of agricultural land itself. Therefore, costs of irrigation wells of agricultural lands cannot form the basis for awarding compensation for such irrigation wells independently of the compensation awardable for the agricultural lands for the benefit of which such wells existed. That, this Court has also taken similar view in HARBHAM VIKRAMSINH v. STATE OF GUJARAT [ 1998 (4) GCD 3213 ] wherein it is held that when the entire parcel of land under acquisition has been considered, assesed and valued as bagayat land, the claimants may not be entitled to an additional amount for wells. It has been held by the Supreme Court in UNION OF INDIA v. RAM PHOOL AND ANOTHER [ (2003) 10 SCC 167] that sale price in respect of a small bit of transaction would not be the determinative factor for deciding the market value of a vast stretch of land. ( 8 ) IT is recently held by the Supreme Court in VIRENDER SINGH AND OTHERS v. UNION OF INDIA [ air 2003 SC 2493 ] that it would be unsafe to place reliance on the sale deeds executed by the claimants just before acquisition for arriving at the market value of the land in question. ( 8 ) IT is recently held by the Supreme Court in VIRENDER SINGH AND OTHERS v. UNION OF INDIA [ air 2003 SC 2493 ] that it would be unsafe to place reliance on the sale deeds executed by the claimants just before acquisition for arriving at the market value of the land in question. In KASTURI AND OTHERS v. STATE OF HARYANA [ air 2003 SC 202 ], it is held that prices fetched for small plots cannot be the basis for valuation of large tracts of land and conversion of land into plots for the purpose of residential or commercial use required expenditure for developmental works. Merely saying that area adjoining the land is developed area is not enough particularly when the extent of the acquired land is large and only a small portion of the land is abutting the main road. However, in cases of some land where there are certain advantages by virtue of the developed area around, the percentage of cut to be applied as developmental charges required may be less on that account. ( 9 ) IN view of the aforesaid settled position of law and the above discussion of facts in evidence, the appeals are required to be allowed and no substance could be found in the cross-objections of the original claimants. Basing the market value on the agreement to sale at Ex. 33 in respect of the lands which are assigned highest value all throughout, the market price of the lands bearing survey Nos. 112/2 and 112/3 is fixed at Rs. 30/- per sq. mtr; whereas the market price of the lands of the rest of the survey numbers is fixed at Rs. 27. 50 per sq. mtr. after considering potentiality, vicinity of the residential societies, prevailing market prices of small residential plots in the areas and the status of the lands in question as irrigated bagayat lands with wells. The order to pay compensation at the rate of Rs. 10,000/- for each well in the lands bearing survey Nos. 112/2, 112/3, 109/3 and 103/3 is set aside. Accordingly, the respondent claimants shall be entitled to compensation at Rs. 30/- per sq. mtr. in respect of the acquired lands of survey Nos. 112/2 and 112/3 in Land Reference Cases Nos. 683/88, 684/88, 685/88, 686/88, 687/88 and 688/88 and in the remaining LRC Nos. 112/2, 112/3, 109/3 and 103/3 is set aside. Accordingly, the respondent claimants shall be entitled to compensation at Rs. 30/- per sq. mtr. in respect of the acquired lands of survey Nos. 112/2 and 112/3 in Land Reference Cases Nos. 683/88, 684/88, 685/88, 686/88, 687/88 and 688/88 and in the remaining LRC Nos. 7/87, 79/87, 80/87, 81/87 and 15/87 the compensation shall be at the rate of Rs. 27. 50 per sq. mtr. The additional amount of compensation shall be worked out after deducting the amount awarded by the Land Acquisition Officer in respect of the same lands. The claimant respondents shall be entitled to additional amounts under Sections 23 (1-A) and 23 (2) of the Act with interest at the rate of 9% p. a. from the date possession was taken, for a period of one year, and, at the rate of 15% p. a. for the period thereafter till realization with proportionate cost. The impugned order dated 30. 4. 1996 shall stand modified to the aforesaid extent. The cross-objections are rejected with no order as to costs. AT this stage, the learned counsel for the respondents requested that operation of the aforesaid order may be stayed for a period of three months. We do not find any justification for granting that request and hence it is rejected. .