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Gujarat High Court · body

2010 DIGILAW 447 (GUJ)

State of Gujarat v. Patel Jayantilal Mohanlal

2010-09-24

H.B.ANTANI, JAYANT PATEL

body2010
Judgment Jayant Patel, J.—In all the matters, as common questions arise for consideration, they are being considered by this common judgement. 2. It may be recorded that in all the matters, the acquisition is for Narmada Yojana Unit No. 11 and the Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the ‘Act’) was common, published on 23.10.1992 and the Notification under Section 6 of the Act was published on 14.10.1993. The award under Section 11 of the Act is also common, published on 1.2.1996. All the lands are situated at Lakhtar District, Surendranagar. The Special Land Acquisition Officer awarded compensation of Rs. 3/- per sq. mtr., for irrigated land and Rs. 2/- per sq.mtr., for non-irrigated land. As the claimants were not satisfied with the compensation awarded by the Special Land Acquisition Officer, they raised the dispute and claimed the compensation of Rs. 50 per sq. mtr. The matter was thereafter referred to the Reference Court for adjudication. The Reference Court awarded the compensation as under :— (a) In the Group of First Appeal Nos. 216 to 236 of 2004, arising from the Land Reference Case No. 328 to 348 of 1997, the additional compensation has been awarded by the Reference Court at Rs. 18/- per sq. mtr., for the non-irrigated land and Rs. 27/- per sq. mtr., for irrigated land. (b) In the Group of First Appeal Nos. 544 to 563 of 2004, arising from the Land Reference Case No. 396 to 415 of 1997, the additional compensation has been awarded by the Reference Court at Rs. 18/- per sq. mtr., for the non-irrigated land, and there was no irrigated land. (c) In the Group of First Appeal Nos. 1568 to 1586 of 2006, arising from the Land Reference Case No. 1 to 19 of 1999, the additional compensation has been awarded by the Reference Court at Rs. 17.85 per sq. mtr., for the non-irrigated land and there was no irrigated land under acquisition. (d) In the Group of First Appeal Nos. 1627 to 1650 of 2007, arising from the Land Reference Case No. 140 to 153 of 1997, the additional compensation has been awarded by the Reference Court at Rs. 18/- per sq. mtr., for the non-irrigated land and there was no irrigated land. 3. (d) In the Group of First Appeal Nos. 1627 to 1650 of 2007, arising from the Land Reference Case No. 140 to 153 of 1997, the additional compensation has been awarded by the Reference Court at Rs. 18/- per sq. mtr., for the non-irrigated land and there was no irrigated land. 3. In all the matters, in addition to the aforesaid additional compensation, the Reference Court has awarded statutory benefits of 30% solatium, 12% increase and the interest as per the provisions of the Land Acquisition Act. It is under these circumstances, all the appeals before this Court. 4. We have heard Mr. Pujari and Mr. K.P. Raval, learned AGPs for the Appellant in the respective appeals and Mr. M.D. Vakil, learned Counsel for the original claimants in all the appeals. 5. Before we proceed to examine the other aspects, it deserves to be recorded that the very Reference Court, in respect of the very acquisition of the other lands located at Lakhtar, in Reference Case No. 306 of 1997 to 327 of 1997, after considering the material on record had assessed the market price of the land at Rs. 20/- per sq. mtr for non-irrigated land and as Rs. 2/- was already awarded as compensation by the Special Land Acquisition Officer, the additional compensation was awarded at Rs. 18/- per sq. mtr. The statutory benefits of 30% solatium, increase as per Section 23(1-A) and interest as per the provisions of the Act were also awarded. The said judgement and award of the Reference Court was challenged by the Appellant before this Court being First Appeals No. 3067 of 2001 to 2388 of 2001 and all the First Appeals, vide judgement and order dated 20.11.2002, came to be dismissed for the reasons recorded in the said decision. It would also be pertinent to note that this Court, in the above referred decision, recorded the reasons, thus, at paragraphs 7 to 14 as under :— “7. Having perused the oral evidence as well as documentary evidence led by the parties, the learned Judge came to the conclusion that an amount of Rs. 2/- per sq.mtr. warded by the L.A.O. for the lands of the land owners was too meagre and on the basis of tye yield system, in absence of any concrete material regarding sale instances, they would be entitled for at least Rs. 20/- per sq.mtr. 2/- per sq.mtr. warded by the L.A.O. for the lands of the land owners was too meagre and on the basis of tye yield system, in absence of any concrete material regarding sale instances, they would be entitled for at least Rs. 20/- per sq.mtr. Therefore, he allowed all the Reference cases partly and awarded Rs. 20/- per sq.mtr. in all, instead of Rs. 100/- per sq.mtr. claimed by the claimants by his common judgment and award dated 20th January, 2001. The learned Judge also held that the claimants were entitled to recover solatium at the rate of 30% per annum on the amount of additional compensation from the opponents and they were required to pay interest at the rate of 9% per annum to the claimants from the date of taking over possession of the lands and thereafter at the rate of 15% per annum till realisation of the amount awarded by way of compensation. The learned Judge also held that the claimants were entitled to recover 12% increase in addition to the market value of the lands from the date of the publication of the notification under Section 4(1) o the Act in respect of the said lands to the date of the award or the date of taking over possession of the land whichever is earlier as provided under Section 23(IA) of the Act. 6. Though the acquiring body i.e. Executive Engineer, Saurashtra Narmada Canal Division, and the Special Land Acquisition Officer were different, surprisingly, they have jointly filed all these appeals in their individual capacity. It may be stated that the award has to be ultimately satisfied by the State of Gujarat and if the award is not challenged by the State, then the said award would become final. In our considered opinion, the present Appellant No. 1 Special Land Acquisiton Officer and Appellant No. 2 Executive Engineer, Saurashtra Narmada Canal Division could not have filed all these appeals in their individual capacity. Be that as it may. On merits also, we do not find any substance in all these appeals. Therefore, we have not dismissed all these appeals on this ground alone. 7. Ms. Be that as it may. On merits also, we do not find any substance in all these appeals. Therefore, we have not dismissed all these appeals on this ground alone. 7. Ms. Devani, the learned Assistant Government Pleader appearing for the Appellant No. 1 Special Land Acquisition Officer has taken us through the entire impugned judgment and award passed by the learned Judge and the reasons assigned in it and submitted that the learned Judge has committed grave error in discarding the sale instances produced at exhs. 73 to 78 of nearby lands which were almost of similar period of 1989 to 1993 where the lands were sold by private owners around Rs. 2/per sq.mtr. She therefore, submitted that the L.A.O. has rightly awarded Rs. 2/- per sq.mtr. for the lands which were acquired in the year 1992. She further submitted that when sale instances were very much available for the correct adjudication of the price of the land, then it was not open for the learned Judge to take into consideration the yield basis for determining the price of the land. 8. In our considered opinion, Ms. Devani is very much right in submitting that ordinarily when there are sale instances, then they should have been relied upon. But on facts of these cases, we are not inclined to interfere with the impugned award passed by the learned Judge for the reason that there was a sale instance at exh.15 whereby the Telephone Department of the Central Government purchased the nearby land at the rate of Rs. 150/- per sq.mtr. in January, 2000. That means, after more than 7 years of the acquisition of the lands in question in the instant case. It is true that the lands were sold between 1989 to 1992 at the rate of Rs. 2/- per sq.mtr., but that was a private transaction entered into between private parties and in the instant case, neither seller nor purchaser has come forward to depost in favour of the authority. As against that, there is a sale transaction at exh.15 which shows that in the year 2000, the land was sold at Rs. 150/- per sq.mtr. 9. 2/- per sq.mtr., but that was a private transaction entered into between private parties and in the instant case, neither seller nor purchaser has come forward to depost in favour of the authority. As against that, there is a sale transaction at exh.15 which shows that in the year 2000, the land was sold at Rs. 150/- per sq.mtr. 9. In the case of Deputy General Manager, ONGC vs. Chaturji Lalaji and others reported in 1998 (1) GLR 130 , the Division Bench of this Court has held that appreciation in the value of land at the rate of 10% per annum to be accepted. Thus, there is a binding decision of this Court on this point. If we consider exh.1 5, sale instance of nearby land, which was sold at the rate of Rs. 150/- in January, 2000, then it cannot be said that the amount of Rs. 20/- per sq.mtr. awarded by the learned Judge was in any way wrong. If we go downward in calculation of 10%, then it would be little more than Rs. 20/-. However, according to us, Rs. 20/- per sq.mtr. award is reasonable, therefore, we would not like to interfere with such finding recorded by the learned Judge. 10. Above this, there is an authentic oral evidence led on behalf of the claimant side and as per the oral evidence of Muljibhai Harjibhai at exh. 13, the lands which were acquired were fertile and there was a facility of irrigation from check dams and they used to take two crops in a season, one in monsoon and another in winter. From the sale of crops like cotton, Jeera, Bajra, wheat etc. they used to earn Rs. 12000/- to Rs. 14000/- per year as net profit, which would come to about Rs. 22000/- to Rs. 24000/- in a year. This evidence of the claimant given on oath has not at all been shaken in his cross-examination and the way in which the claimant has deposed, we are not prepared to discard his evidence which was rightly relied upon by the learned Judge. It may be stated that the learned Judge has taken into consideration the early income at the rate of Rs. 14000/- per year only and by deducting 50% agricultural costs, he had come to the conclusion that they would be entitled to at least Rs. 20/- per sq.mtr. and not Rs. It may be stated that the learned Judge has taken into consideration the early income at the rate of Rs. 14000/- per year only and by deducting 50% agricultural costs, he had come to the conclusion that they would be entitled to at least Rs. 20/- per sq.mtr. and not Rs. 2/per sq.mtr. which is awarded by the L.A.O. Thus, he awarded additional sum of Rs. 18/- per sq.mtr. to the claimants. 11. In view of the above discussion, we do not find any substance or merit in all these appeals and accordingly all these appeals are hereby dismissed with costs. 12. In the instant case, the respondents claimants have not filed cross objections, but in view of the judgment of the Constitutional Bench of the Hon’ble Supreme Court of India in the case of Sunder vs. Union of India reported in 2001(7) SCC 211 , the respondents claimants would be entitled to get the interest on the amount awarded under Sections 23(2) and 23(1)(A) of the Land Acquisition Act and they are also entitled to get 12% interest towards difference on the amount so awarded under Sections 23(2) and 23(1)(A) of the Land Acquisition Act. Accordingly, while dismissing all these appeals, the appellants are directed to pay the same to the respondent claimants at the earliest and not later than 3 months from the date of receipt of the certified copy of the judgment and Award. 13. Award be drawn accordingly. 14. Learned Advocate Mr. Vakil appearing for the respondents-original claimants inall these appeals, has sought permission before effetive hearing to withdraw the cross-Appeal Nos. 36 to 57 of 2001. Accordingly, they are dismissed as withdrawn before effective hearing.” 6. The aforesaid shows that for the very acquisition and the other lands located at the very city Lakhtar, the additional compensation awarded by the Reference Court under Land Acquisition Act at Rs. 18/- per sq. mtr., for the non-irrigated land has been confirmed by another Division Bench of this Court and the cross-objections were also withdrawn and they were dismissed as withdrawn. 7. It may also be recorded that against the above referred decision of this Court in First Appeal No. 3067 of 2001 and allied matters, the Special Land Acquisition Officer and others had carried the matter before the Apex Court being Civil Appeal No. 9702 – 9723 of 2007 and the leave was granted. 7. It may also be recorded that against the above referred decision of this Court in First Appeal No. 3067 of 2001 and allied matters, the Special Land Acquisition Officer and others had carried the matter before the Apex Court being Civil Appeal No. 9702 – 9723 of 2007 and the leave was granted. However, vide order dated 27.4.2010 of the Apex Court, the Special Leave Petitions and the Appeals are dismissed. The aforesaid goes to show that the view taken by this Court has not been interferred with by the Apex Court and the legal position prevails accordingly. 8. The another pertinent aspect is that in the judgement and the award of the Reference Court, which is impugned in the present group of appeals on behalf of the claimants, the above earlier referred decision of the Reference Court in Land Reference Case No. 306 to 327 of 1997 was relied upon and the Reference Court has also recorded the said aspect in the impugned judgement. The same can be traced by way of an example at paragraph 14 in the decision of the Land Reference Case No. 327 of 1997 to 348 of 1997, which is impugned in one of the Groups of First Appeals No. 16 of 2004 and allied matters. 9. The learned AGPs appearing for the appellant have not been able to show any distinguishing circumstances, which may call for a different view than the view taken by the earlier Bench of this Court in respect of the other lands located at the very city for the very acquisition. 10. We may mention that apart from the sale instances of Rs. 150/- to the Telecom Department as referred to by the earlier Bench of this Court in the above referred judgement, the perusal of the judgement of the Reference Court also shows that it came on record by way of evidence on behalf of the original claimants that GIDC had allotted the land in the very city Lakhtar in the Industrial Estate at Rs. 100/- per sq. 100/- per sq. It is true that in the matter of allotment of the land for industrial estate after acquisition, GIDC might have incurred expenses of developing infrastructure as that of water, roads, electricity, etc., but even if a substantial deduction is made on that aspects by way of about 50% to 60%m it would not lead to a situation where a difference would be there on the aspect of assessment of valuation of less than Rs. 30/- per sq. mtr., for irrigated land and Rs. 20/- per sq. mtr., for non-irrigated land. 11. It is true that the above referred decision of this Court, which was not interferred with by the Apex Court was pertaining to the non-irrigated land and was for additional compensation of Rs. 18/- per sq. mtr., for non-irrigated land taking the value or the price at Rs. 20/- per sq. mtr., of such land and the question was not before the earlier Bench pertaining to the valuation or the additional compensation for irrigated land, but at the same time, the difference of the price between the irrigated land and non-irrigated land was borne in mind by the Special Land Acquisition Officer at the time when the award was passed can be taken into consideration. It is undisputed position that the Special Land Acquisition Officer, for non-irrigated land, has fixed the price of 2/3rd in comparison to the price of irrigated land. To say in other words, he has fixed the price at Rs. 3/- per sq. mtr., for irrigated land, whereas for the non-irrigated land, he has fixed the price at Rs. 2/- per sq. mtr. If the same difference and rational is applied for assessment of the price of irrigated land on the premise that for non-irrigated land, the price would be Rs. 20/- per sq. mtr., and consequently, the additional compensation would be Rs. 18/- per sq. mtr., the price of irrigated land would come to Rs. 30/- per sq., mtr., and the additional compensation would be Rs. 27/- per sq. mtr., since Rs. 3/- per sq. mtr., has already been awarded by the Special Land Acquisition Officer for irrigated land. Therefore, it appears to us that the said aspects should not detain us further for the assessment of the valuation to be attributed for irrigated land. We may also record that, except in the group of First Appeal Nos. mtr., since Rs. 3/- per sq. mtr., has already been awarded by the Special Land Acquisition Officer for irrigated land. Therefore, it appears to us that the said aspects should not detain us further for the assessment of the valuation to be attributed for irrigated land. We may also record that, except in the group of First Appeal Nos. 216 of 2004 to 236 of 2004, in all other cases, the land is non-irrigated land only. 12. No cross-objections have been filed in the present group of appeals, therefore, the said aspect is not required to be considered at all in the present matter. 13. No other contention has been raised. 14. In the result, the judgement and award of the Reference Court for awarding the additional compensation at Rs. 18/- per sq. mtrs. , or Rs. 17.85 sq. mtrs., as the case may be, in the concerned Reference Cases for the non-irrigated land and Rs. 27/- per sq. mtr., for irrigated land deserve to be confirmed and are confirmed accordingly. The other statutory benefits as awarded by the Reference Court in the concerned judgements are for 30% solatium and for increase as per Section 23(1-A) of the Act and the interest as per the statutory provisions of the Act, hence, no interference is called for on the said aspects and deserves to be confirmed. 15. In view of the aforesaid observations and discussions, all appeals fail. Hence, dismissed with cost to be paid by the appellant to the respondents – original claimants in addition to the amount of compensation as per the judgement and award of the Reference Court and such cost shall be paid within six weeks from today by depositing the same with the Reference Court. 16. It is observed that in some of the matters, if it is reported to the Reference Court that any of the original claimants have expired, then in that case, the Reference Court before actual disbursement of the amount shall verify the succession of the original claimants and the compensation shall be paid to the successor or the authorised legal representative of the original claimants by ‘Account Payee’ cheque. 17. All appeals are disposed of accordingly. The Record and Proceedings be returned to the Reference Court.