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2012 DIGILAW 394 (GUJ)

Bhikhaji v. Special Land Acquisition Officer

2012-05-01

RAJESH H.SHUKLA

body2012
JUDGMENT : 1. The present group of First Appeals have been filed by the original claimants being aggrieved and dissatisfied with the judgment and award passed by the Learned Principal Senior Civil Judge, Gandhinagar in Land Acquisition Reference Nos.610 to 612 & 613 to 615 of 2009 dated 16.04.2009 on the grounds stated in the memo of Appeals. 2. The facts of the case briefly stated are that the land of the original claimants situated in the sim of Village : Jethlaj, Taluka : Kalol, District : Gandhinagar have been acquired for the purpose of Drilling Site No.S.A.E.S. after issuing notice under Sections 4 and 6 of the Land Acquisition Act dated 01.03.2000 and 06.06.2001 respectively. After completing the procedure, the Special Land Acquisition Officer awarded compensation at the rate of Rs.24/- per sq.mtrs. for the acquired land. Therefore, the original claimants have preferred Reference under Section 18 of the Act for enhancement of the compensation as they had already prayed to award Rs.1,000/- per sq.mtrs. of the land. The Learned Principal Sr. Civil Judge, Gandhinagar partly allowed the References and ordered that the claimants of Land Acquisition Reference Nos.610 to 612 of 2009 are entitled to get the amount of Rs.200/- (Rupees Two Hundred Only) per sq.mtrs. (Rs.224/- mines Rs.24/- as per award) as well as the claimants of Land Acquisition Reference Nos.613 to 615 of 2009 are entitled to get the amount of Rs.214.80 (Rupees Two Hundred Fourteen and Eighty paise Only) per sq.mtrs. (Rs.244.80 mines Rs.30/- as per award) along with interest @ 9% per annum for a period of one year and @ 15% per annum till realisation of the amount, which has been assailed in this First Appeals on the grounds stated in the memo of Appeal. 3. It is contended that though the Reference Court has determined the market value at the rate of Rs.280/- per sq.mtrs. as well as Rs.306/- per sq.mtrs. in respectively Reference, he has not awarded the compensation at that rate, which is erroneous. It is also contended that the amount of compensation, which has been arrived at by the Reference Court at the rate of Rs.280/- per sq.mtrs. as well as Rs.306/- per sq.mtrs. in respectively Reference with statutory benefit may be awarded and the development charges, which has been deducted, is erroneous. It is also contended that the amount of compensation, which has been arrived at by the Reference Court at the rate of Rs.280/- per sq.mtrs. as well as Rs.306/- per sq.mtrs. in respectively Reference with statutory benefit may be awarded and the development charges, which has been deducted, is erroneous. It is also contended that the lands of Village : Jethlaj are the agricultural land and the Court below has failed to appreciate that the land in question and the other land of same taluka are of same type of same village and, therefore, the question of deduction of development charges would not arise. It is, therefore, contended that the deduction of 20% development charges is unjustified and the Reference Court ought not to have deducted from the market value at the rate of Rs.280/- as well as Rs.306/- per sq.mtrs. in respectively Reference. Reliance is also placed on the judgment of the Hon'ble Apex Court in case of C.R. Nagaraja Shetty Vs. Special Land Acquisition Officer & Estate Officer & Anr. reported in AIR 2009 SC 2184 . 4. Learned counsel, Mr.Soni submitted that the land in question of the claimants are similarly situated to other lands of the same village, which has been acquired for the same purpose. Learned counsel, Mr.Soni, however, submitted that in respect of other land, which is of the same village acquired for the same purpose, no development charges have been deducted. For that purpose, he referred to the papers including, Exh.33 and submitted that the sale deed, Exh.33 is in respect of the land purchased by Arvind Mill and the value of the land is Rs.280/- per sq.mtrs. as well as Rs.306/- per sq.mtrs. in respectively Reference. Therefore, Reference Court has also accepted the said value, however, has erroneously made deduction of 20% i.e. Rs.56/- as well as Rs.61.20 in respectively Reference towards the development charges without any justification. Learned counsel, Mr.Soni, therefore, submitted that no development charges could be deducted as there is no other evidence or justification for the same. Learned counsel, Mr.Soni submitted that in fact, the land has already been developed and the entire deduction towards the development charges is erroneous. He has also referred to the papers including the paper book produced on record at Page No.137. Learned counsel, Mr.Soni submitted that in fact, the land has already been developed and the entire deduction towards the development charges is erroneous. He has also referred to the papers including the paper book produced on record at Page No.137. He has referred to the deposition of the Land Acquisition Officer and submitted that he has not seen the actual situation of the land in question and has without having idea made deduction towards the development charges. Learned counsel, Mr.Soni submitted that such deduction could be made where large area of the land is acquired and it would not be applicable to the small piece of lands. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in case of Kasturi Vs. State of Haryana, reported in AIR 2003 SC 202 and he has emphasised the observations that "In absence of other evidence mere fact that area adjoining land of claimant is fully developed area - Not sufficient to not make the deduction - Particularly when extent of acquired land is large". Learned counsel, Mr.Soni, therefore, submitted that there might be various factors, which may have to be taken into consideration while applying such deduction from the compensation for the development charges. He has also referred to and relied upon the judgment in case of C.R. Nagaraja Shetty Vs. Special Land Acquisition Officer & Estate Officer & Anr. reported in AIR 2009 SC 2184 and submitted that in some cases, it may be one-third or less than one-third. 5. Learned AGP Ms.Trusha Mehta, however, referred to the evidence of Land Acquisition Officer and submitted that he has categorically stated that the claimants were called and they were asked to submit evidence for the purpose of deciding the market value of the land and they could have not produced any documentary evidence with regard to the yield or sale of any agricultural produce in the Agricultural Produce Market. Learned AGP submitted that though the claimants were claiming that they have been doing agriculture operation with new advance technology using pesticides and other and, therefore, the land was fertile and the yield was hired, no evidence was produced. Similarly, no evidence has been produced that there is any industrial development or GIDC around the land in question. Learned AGP submitted that though the claimants were claiming that they have been doing agriculture operation with new advance technology using pesticides and other and, therefore, the land was fertile and the yield was hired, no evidence was produced. Similarly, no evidence has been produced that there is any industrial development or GIDC around the land in question. Therefore, learned AGP submitted that as there is admittedly no such development suggesting even potentiality for the development, the impugned judgment and award of the Reference Court cannot be said to be erroneous. Learned AGP has also referred to and relied upon the same judgment and submitted that the development charges for the purpose of prospective development is permissible and it cannot be said that there is no justification for such development. 6. In view of these rival submissions, it is required to be considered whether the present appeals can be entertained or not and the impugned judgment and award calls for any interference. 7. The moot point for the determination is whether the Reference Court has considered the relevant criteria for the purpose of arriving at market value of the land in question. Further, having arrived at market value at the rate of Rs.280/- per sq.mtrs. as well as Rs.306/- per sq.mtrs. in respectively Reference considering all the relevant aspects whether the deduction of 20% towards the development charges was justified. As could be seen from the impugned judgment and award as well as relevant material and record, the land acquired is for the ONGC Drilling Site in the Gandhinagar district. The Land Acquisition Officer in his deposition has stated about the development though he has also stated that no evidence was produced by the claimant with regard to the yield or that the land was fertile. In fact, as could be seen from the record including the sale deed as well as other record of the Sub-Registrar Office, the evidence with regard to the sale instance has been produced on record particularly in respect of the land purchased by Arvind Mill at the rate of Rs.280/- per sq.mtrs. as well as Rs.306/- per sq.mtrs. in respectively Reference. There is list produced on record, which is an index of such document of the same village at Exhs.20-36. as well as Rs.306/- per sq.mtrs. in respectively Reference. There is list produced on record, which is an index of such document of the same village at Exhs.20-36. Similarly, the revenue record as well as the details of the land acquired by the ONGC for its project referred to the nature of land as jirayat and the Reference Court has also discussed on this aspect. For the purpose of arriving at market value, the sale instance of the surrounding properties have been considered based on sale instances at Exhs.22-36. There is a reference to the report of the registered Valuer, one Shri P.K. Desai. He has given the report with regard to the land in question at Village : Jethlaj. It appears that the limits of Ahmedabad Municipal Corporation is also adjoining to this village. Therefore, this village : Jethlaj is having the benefit of vicinity of developing area under the Ahmedabad Municipal Corporation and Ahmedabad Urban Development Authority. This witness has assessed the market value at the rate of Rs.600/- per sq.mtrs. At the same time, the submission made by learned counsel, Mr.Marshal as well as learned counsel, Ms.Brahmbhatt that the evidence of such registered valuer at Exh.38 may not be accepted at the face value as he would be interested in showing inflected rate or higher value cannot be accepted. Even it is assumed that the said private Registered Valuer may have tendency to show on little higher side still as a registered valuer, he has to justify his assessment, for which, he has to consider the relevant aspects and it is not in dispute that the land of Village : Jethlaj is in near the vicinity of the land covered by AUDA. There is all around potential development, which cannot be overlooked. Further the specific sale instance at Exhs.20-36 and in particularly the sale instance of Arvind Mill producing the land at the rate of Rs.280/- as well as Rs.306/- per sq.mtrs. in respectively Reference cannot be said to be higher side or erroneous. 8. Therefore, once having arrived at market value of the land in question at the rate of Rs.280/- as well as Rs.306/- per sq.mtrs. in respectively Reference, the Reference Court has proceeded for deduction towards the development charges, which is required to be appreciated and considered whether there is any justification or not. 8. Therefore, once having arrived at market value of the land in question at the rate of Rs.280/- as well as Rs.306/- per sq.mtrs. in respectively Reference, the Reference Court has proceeded for deduction towards the development charges, which is required to be appreciated and considered whether there is any justification or not. For that purpose, on going through the record and material on record, it is evident that the land in question of Village : Jethlaj is situated near to the land covered under AUDA. Therefore, the lands covered under AUDA has potentiality for the development and in fact, the development is also referred to in the judgment of the Reference Court. Therefore, the land in question has also a potentiality for the development as it is near vicinity of such land covered by AUDA and there may not be sufficient evidence for the yield of the land, which has been used and merely because the bills for the sale of such agricultural crops in the Agricultural Produce Market Committee is not produced, it cannot be presumed that the lands are not fertile and it has no yield. In fact, though it is an agricultural land situated in near vicinity of the developing area, it will have a more potentiality both for appreciation of the price and also the development. Therefore, if the relevant criteria for the assessment of the market value of the land are considered then the method of considering the yield is one of the method but it has also to be considered in background of other relevant criteria like the development in the near vicinity and the potential development of the land in question. The registered valuer in his evidence at Exh.38 has discussed on this aspect, which may not be accepted at its face value but it can give indication with regard to the potentiality development in the near vicinity. It is required to be mentioned that according to this valuer, the assessment of the value is Rs.600/- per sq.mtrs., whereas the claim is for Rs.280/- per sq.mtrs. as well as Rs.306/- per sq.mtrs. in respectively Reference based on the actual sale instances, which have been registered with the authorities by registered sale deed. Therefore, in light of the evidence about the sale instance at Exhs.20-36 and particularly the purchase of the land by Arvind Mill at the rate of Rs.280/- per sq.mtrs. as well as Rs.306/- per sq.mtrs. in respectively Reference based on the actual sale instances, which have been registered with the authorities by registered sale deed. Therefore, in light of the evidence about the sale instance at Exhs.20-36 and particularly the purchase of the land by Arvind Mill at the rate of Rs.280/- per sq.mtrs. as well as Rs.306/- per sq.mtrs. in respectively Reference itself suggest that the assessment of the value is just and proper. Again when there is all around development in the near vicinity and the situation of the land is near to or adjacent to land covered by the AUDA has definitely advantage. Therefore, the deduction of 20% towards the development charges without any potentiality or actual evidence for such development or the expenses for the development would not justify. The Hon'ble Apex Court in both judgments, which have been referred to by learned counsel, Mr.Soni has made observations that the development charges could be permissible deduction but it has to have reference to actual evidence and the expenses made for the purpose of such development in the area, which has the effect of the development in the entire area. In the instant case, the land is so situated near to the other lands covered in the AMC or AUDA with potentiality for the development and actually, there is some development and when there is actual some development, the deduction towards the development charge would not be permissible. In any case, such deduction without any evidence with regard to the instances for the development would not be justified. The development charges could be deducted provided there are any such expenses for the development of the entire area made by the authorities. This land is not covered in the AMC or AUDA and, therefore, it should not be any justification for any kind of such deduction though it may have the benefit of development in the near vicinity. 9. A useful reference can be made to the observations of the judgment of the C.R. Nagaraja Shetty (supra), wherein the Hon'ble Apex Court has made following observations :- "8. The High Court has directed the deduction of Rs.25/- per square feet. Unfortunately, the High Court has not discussed the reason for this deduction of Rs.25/-per square feet nor has the High Court relied on any piece of evidence for that purpose. The High Court has directed the deduction of Rs.25/- per square feet. Unfortunately, the High Court has not discussed the reason for this deduction of Rs.25/-per square feet nor has the High Court relied on any piece of evidence for that purpose. It is true that where the lands are acquired for public purpose like setting up of industries or setting up of housing colonies or other such allied purposes, the acquiring body would be entitled to deduct some amount from the payable compensation on account of development charges, however, it has to be established by positive evidence that such development charges are justified. The evidence must come for the need of development contemplated and the possible expenditure for such development. We do not find any such discussion in the order of the High Court. As if this is not sufficient, when we see the judgment of the Principal Civil Judge (Sr. Division), Bangalore, Rural District, Bangalore in Reference proceedings, we find that there is no deduction ordered for the so-called development charges. We are, therefore, not in a position to understand as to from where such development charges sprang up. The Learned Counsel appearing on behalf of the respondents was also unable to point out any such evidence regarding the proposed development. We cannot ignore the fact that the land is acquired only for widening of the National Highway. There would, therefore, be no question of any such development or any costs therefor. All that the acquiring body has to achieve is to widen the National Highway. There is no further question of any development. We again, even at the cost of repetition, reiterate that no evidence was shown before us in support of the plea of the proposed development. We, therefore, hold that the High Court has erred in directing the deduction on account of the developmental charges at the rate of Rs.25/- per square feet out of the ordered compensation at the rate of Rs.75/- per square feet. We set aside the judgment to that extent." 10. It is in these circumstances, the present appeals deserve to be allowed only to the extent of 20% deduction of the development charges because the actual market value of the land, which has been assessed at the rate of Rs.280/- as well as Rs.306/- per sq.mtrs. We set aside the judgment to that extent." 10. It is in these circumstances, the present appeals deserve to be allowed only to the extent of 20% deduction of the development charges because the actual market value of the land, which has been assessed at the rate of Rs.280/- as well as Rs.306/- per sq.mtrs. in respectively Reference deserves to be accepted and the compensation deserves to be enhanced to that extent. 11. In the circumstances, the impugned judgment and award passed by the Learned Principal Senior Civil Judge, Gandhinagar in Land Acquisition Reference Nos.610 to 612 & 613 to 615 of 2009 dated 16.04.2009 is hereby quashed and set aside only to the extent of deduction of 20% amount towards the development charges. Therefore, the appellants-original claimants Land Acquisition Reference Nos.610 to 612 of 2009 are entitled to get total amount of Rs.280/- per sq.mtrs. (Rs.224/- awarded by the Reference Court + 20% development charges deducted by the Reference Court i.e. Rs.56/-) and the appellants-original claimants of Land Acquisition Reference Nos.613 to 615 of 2009 are entitled to get total amount of Rs.306/- per sq.mtrs. (Rs.244.80 awarded by the Reference Court + 20% development charges deducted by the Reference Court i.e. Rs.61.20). The present First Appeals stand allowed accordingly to the above extent. Appeal allowed.