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Gujarat High Court · body

2019 DIGILAW 982 (GUJ)

Baldevbhai Bhagchand Kela v. State of Gujarat

2019-10-18

B.N.KARIA, R.M.CHHAYA

body2019
JUDGMENT : R.M. CHHAYA, J. 1. These appeals under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act" for sake of brevity) r/w Section 96 of the Code of Civil Procedure, 1908 are directed against the judgment and award dated 24.04.2007 passed by the learned Principal Senior Civil Judge, Palanpur in Land Acquisition Reference Case No. 2 of 2003. First Appeal No. 4816 of 2007 is filed by the land owners whereas First Appeal No. 5174 of 2007 is filed by the State Government. As both the appeals are directed against the same judgment and award and evidence is also the same, both the appeals were heard together and are disposed of by this common judgment and order. 2. The following noteworthy facts emerge from the record of these appeals. That the present acquisition pertains to a constructed premises being City Survey No. 11429, sheet no. 50 situated at Palanpur. The land acquired is a constructed property bearing Municipal Census Nos. 2/809, 2/810, 2/811, 2/812 and 2/812/1. The constructed property is at present occupied by the Police Authority and is in possession of the Superintendent of Police, Banaskantha. The total land acquired is comprising of area admeasuring 1105 sq mtr approximately, which consists of the constructed premises and open portion attached to the same. As per the record, the property belonged to erstwhile Ruler of Palanpur State and it was given on rent to the Home Department by erstwhile Ruler in the year 1949 at the monthly rent of Rs. 170/- and since the year 1949 the same is in occupation of the Superintendent of Police, Banaskantha. Description under land acquisition: 3. The land under acquisition was purchased by one Narendrakumar Chaturbhuj Maheshwari, Kamleshkumar Chaturbhuj Maheshwari and Ashaben Gordhankumar and First Appeal No. 4816 of 2007 is preferred by the heirs of the said owners. Land Acquisition Proceedings: 4. The Notification under Section 4 of the Act came to be published on 1.4.1980 and the same was amended by a further Notification under Section 4 on 22.09.1983. A declaration under Section 6 of the Act was made on 5.1.1984. Notice under Section 9(3)(4) of the Act was challenged by the owners by way of filing writ petitions being Special Civil Application Nos. 1535 of 1984 and 1536 of 1984. A declaration under Section 6 of the Act was made on 5.1.1984. Notice under Section 9(3)(4) of the Act was challenged by the owners by way of filing writ petitions being Special Civil Application Nos. 1535 of 1984 and 1536 of 1984. Both the writ petitions came to be dismissed vide judgment and order dated 11.01.1996 by this Court. Thereafter, the award came to be passed by the Land Acquisition Officer under Section 11 of the Act on 31.08.1998 whereby the Land Acquisition Officer determined the market value of the land at Rs. 150/- per sq mtr and determined the market value of the constructed property at Rs. 2,05,292/- and awarded a total compensation of Rs. 5,18,273/-. A notice under Section 12(2) was given to the land owners on 1.9.1998. The said notice was challenged by the owners by way of filing Special Civil Application Nos. 6786 of 1998 and 7738 of 1998. Both the petitions came to be dismissed by this Court vide judgment and order dated 26.12.2002. The owners thereafter preferred Reference application under Section 18 of the Act on 28.01.2003 only for survey no. 11429 and claimed enhanced compensation. A written statement was filed by the State at Exh. 25. The owners relied upon the following evidence: Exh. No. Particulars 28 Resolution of Committee 29 Application of Mulchand in Auction. 21 Deposition of Claimant. 44 Deposition of Hitendra Shah 48 Valution Report of Hitendra Shah The State Authority relied upon the following evidence on record: Exh. No. Particulars 57 Valuation Report of Dy. Town Planner. 64 Notice under Section 12(2). 67 List of documents. 69 Latter of Talati of service of notice under Section 12(2). 70 Deposition of Talati. 74 Assistant Collector’s letter with respect to sale instances of last five years. 77 Deposition of RTO 78 Deposition of Dy. Town Planner 79 Deposition of Dy. Executive Engineer. 4.1. The Reference Court determined the market price of the land acquired at Rs. 6500/- per sq ft. and while partly allowing the Reference Application awarded additional amount of Rs. 1,85,50,147/- and other statutory benefits. 4.2. Being aggrieved and dissatisfied with the same, land owners as well as State have preferred present appeals. 5. Heard Ms. Archana Acharya, learned advocate for the land owners/claimants in both the appeals and Ms. 6500/- per sq ft. and while partly allowing the Reference Application awarded additional amount of Rs. 1,85,50,147/- and other statutory benefits. 4.2. Being aggrieved and dissatisfied with the same, land owners as well as State have preferred present appeals. 5. Heard Ms. Archana Acharya, learned advocate for the land owners/claimants in both the appeals and Ms. Lavkumar Shah, learned Government Pleader assisted by Shri Tirthraj Pandya, learned Assistant Government Pleader for the State in both these appeals. Both the learned advocates for the parties have taken to this Court to the factual matrix arising in these appeals and Ms. Archana Acharya, learned advocate as well as Ms. Lavkumar Shah, learned Government Pleader have also submitted the written submissions, which are taken on record and are specifically dealt with. Submission of learned advocate for the land owners/claimants 6. It was contended by Ms. Acharya, learned advocate that land under acquisition is situated in the center of Palanpur City and in a commercial area. According to Ms. Acharya, rate per sq ft. is Rs. 4000/-. It was further contended by Ms. Acharya that adjacent land was given on lease for Rs. 4000/- per sq ft. and sale price was Rs. 5000/- per sq ft. It was further contended by Ms. Acharya that the land under acquisition also consists of constructed property over 5000 sq ft. which includes construction and valuable Saag wood is used and the said property is being used as police station. Ms. Acharya relying upon the deposition of one of the appellant Jayprakash at Exh. 21 contended that the name of the land owner is recorded in the property card and land acquired was purchased for commercial purpose and is at present being used as a police station. Mr. Acharya reiterated that the land is situated in the center of city and adjacent land wherein Commercial Complex is developed by the Municipality was leased out at rental of Rs. 4000/- to Rs. 5000/- per sq ft. It was contended that as per the deposition of the said witness, price of the subject property is Rs. 6 crore. Ms. Acharya further relying upon the same contended that there is water connection, light connection, telephone line on the subject property and on the southern side of the land acquired there is 100 ft. wide road. It was contended that as per the deposition of the said witness, price of the subject property is Rs. 6 crore. Ms. Acharya further relying upon the same contended that there is water connection, light connection, telephone line on the subject property and on the southern side of the land acquired there is 100 ft. wide road. It was also contended that facilities like bus station, railway station, office of the Nagarpalika, vegetable market, town hall, Victoria library and General Hospital along with children's and woman's hospital are situated near the land under acquisition. Ms. Acharya further relying upon Exhibit 28 - the Resolution of the Local Authority which relates to the auction of the plots of lower ground floor by the Municipality and has contended that as per the said Resolution lease rental is Rs. 4000/- per sq ft. Ms. Acharya further relying upon Exh. 29 which also relates to the auction purchase and has contended that the price of the land under acquisition would comes to Rs. 5000/- per sq fit. Ms. Acharya further relying upon the documents on record at Exhs. 32 to 34 and 36 and reiterated that the price of the land under acquisition would be Rs. 5000/- sq fit. Ms. Acharya further relying upon the documentary evidence at Exh. 39 to 42 and further contended that even without prejudice to the contention raised by the owners even if 50% of the aforesaid amount is considered, same comes to Rs. 2500/- per sq ft. and if the price of construction as on 1998 is considered the same comes to Rs. 500/- per sq ft. Ms. Acharya further contended that owners have established that the valuation of the property of the land acquired in the year 1983-84 was Rs. 2,60,62,000/- relying upon the deposition of the valuer Shri Hitendra Shah at Exh. 44. Ms. Acharya also relying upon the document at Exhs. 48 to 54 and has contended that relevant material has not been appreciated by the Reference Court in its true prospective while determining the market value. Ms. Acharya further contended that considering the evidence on record as well as municipal record for the year 1989, 1994, 1995 etc., the price of the land under acquisition would comes to Rs. 2,60,62,000/- even in the year 1983-84 relying upon the document at Exhs. 44, 48 to 54. Ms. Ms. Acharya further contended that considering the evidence on record as well as municipal record for the year 1989, 1994, 1995 etc., the price of the land under acquisition would comes to Rs. 2,60,62,000/- even in the year 1983-84 relying upon the document at Exhs. 44, 48 to 54. Ms. Acharya further contended that the valuation report of the expert valuer is based on his personal visit to the site and therefore, the Reference Court ought not to have deducted 65% of the market value of the assessment without assigning any reason and it was therefore, contended that impugned judgment and award is bad in law. 6.1. Ms. Acharya further contended that the land acquired is situated in a prime location of the city and has relying upon the cross examination of the Land Acquisition Officer at Exh. 77 and has reiterated that it is situated in the center of city and the entire area is commercial and is near to 100 ft. road with facilities like bus station, railway station, telephone line etc. It was therefore, contended that the material before the Reference Court has not been considered and appreciated in its true prospective while passing the impugned judgment and award. It was further contended that land acquired is in reasonable good location surrounding by the developed areas having civic amenities and facilities and further development activities were also going in a nearby areas and while determining the market value of the land under acquisition relevant factors such as existing geographical situation of the land, existing use of land already available advantage like proximity to national or state highway or road, market value of the other lands situated in same locality/village/area or adjacent or very near the acquired land is not considered. Ms. Acharya further relying upon the documentary evidence at Exh. 28 to 36 and contended that land under acquisition would be valued at Rs. 4000/- per sq ft. 6.2. Ms. Acharya further contended that the valuation made by the Town Planner is incorrect. It was further contended that in the year 1983-84, there was no town planning scheme in Palanpur and the price of the land as well as construction as determined by the Town Planning Officer is very less. It was contended that Land Acquisition Officer has not taken any evidence as to where the properties at Exhs. It was further contended that in the year 1983-84, there was no town planning scheme in Palanpur and the price of the land as well as construction as determined by the Town Planning Officer is very less. It was contended that Land Acquisition Officer has not taken any evidence as to where the properties at Exhs. 74, 75 and 76 are situated and authorities have not examined any member or officers and therefore, award is passed on the basis of document at Exhs. 74 and 75 as well as the Land Committee Report at Exh. 76 without examining any member of the said committee. Referring to the evidence of the Town Planning Officer at Exh. 78, it was contended that witness has admitted in his evidence that the compensation is determined on the basis of the case papers available at the office of the Collector and that he has considered the property which is situated at far distance from the property under acquisition. Ms. Acharya referring to the letter of Town Planner at Exh. 57 as well as report at Exh. 58 contended that auction of land does not refer to any fact pertaining to the sale instances and auction of the lands adjacent to the subject property. Ms. Acharya also contended that rate of construction as brought on record by Exhs. 59 & 60 is without any support. Referring to the evidence of Deputy Engineer at Exh. 79, it was contended by Ms. Acharya that the same is based on the SOR (Scale of Rate) and the consideration like fact that it is used as police station even as on today and that there is pakka construction with Saag wood, is not at all considered. Ms. Acharya further submitted that since 1984 to 1991 there was no construction carried out on the land under acquisition and no evidence are made to determine the market value of the land in the year 1983-84 and even no valuation as per the market value has been done or inquired into. 6.3. Ms. Acharya also further contended that State has never examined any witness to show that market value of the property is reduced because of occupancy of the State and hence reduction of market value because of the occupation of State is totally bad in law and never so evaluated in the award at Exh. 63. 6.3. Ms. Acharya also further contended that State has never examined any witness to show that market value of the property is reduced because of occupancy of the State and hence reduction of market value because of the occupation of State is totally bad in law and never so evaluated in the award at Exh. 63. Referring to the sale instance produced by the State at Exh. 75, it was further contended by Ms. Acharya that said property was originally belonged to Nawab of Palanpur and refugees who came from Pakistan were staying in the said property and upon Karar Lekh dated 24.07.1972, it was given on a meager amount considering the weak financial condition and other factors and therefore, the said price cannot be considered while determining the market value of the land under acquisition. 6.4. Ms. Acharya also further contended that while determining the market value of said property, the Reference Court has not considered prime location of the property acquired and the price determined by the Reference Court, is highly unjust and unreasonable and the same deserves to be enhanced as prayed for in the appeal. Mr. Acharya also contended that land owners have invested huge amount in repairing, developing and constructing of the said property and according to Ms. Acharya the price of the property acquired admeasuring 11898 sq ft, however which includes constructed property of about 5000 sq ft. would be Rs. 2,60,62,000/- and over and above the same, considering the date of Section 4 Notification being 8.1.1981, would be entitled to statutory benefits including benefits under Section 23(1A) and interest under Section 23 of the Act and has contended that over and above amount awarded by the Reference Court, the land owners would be entitled to further amount of Rs. 5,74,17,553/-. 6.5. Ms. Acharya further contended that Land Acquisition Officer has not considered matters which are to be considered as provided under Section 23 of the Act and no evidence or even in form of statement or inquiry has been made by the Land Acquisition Officer as provided under Sections 9, 10 and 11 of the Act. 6.6. Ms. 5,74,17,553/-. 6.5. Ms. Acharya further contended that Land Acquisition Officer has not considered matters which are to be considered as provided under Section 23 of the Act and no evidence or even in form of statement or inquiry has been made by the Land Acquisition Officer as provided under Sections 9, 10 and 11 of the Act. 6.6. Ms. Acharya also contended that the appellants were never served with the notice under Section 9(3)(4) of the Act and copy of the award was not received and the notice under Section 12(2) of the Act was stayed by this Court, the Reference Application is filed within six months and the same is within the period of limitation. Relying upon the deposition of the Talati - Mulajibhai Jitabhai at Exh. 70, it was contended by Ms. Acharya that even after the stay was vacated by this Court, no notice was served. Ms. Acharya lastly submitted that appellants have purchased the property on 3.7.1972 and except Rs. 5,18,273/-, the land owners have received no compensation since 1984 and therefore, the appellants are put to serious loss and prejudice. Along with the written submission, Ms. Acharya has also produced two sketch and one photocopy of the Karar Lekh relating to the survey no. 11430. On the aforesaid ground, Ms. Acharya, therefore, contended that the appeal filed by the land owners be allowed and the compensation be enhanced and appeal filed by the State Government being merits less deserves to be dismissed. 7. Per contra, Ms. Shah, learned Government Pleader has also taken to this Court to the factual matrix arising out of these appeals has referred to whole set of evidence adduced by the land owners as well as set of record. Ms. Shah referring to the statement at Exh. 25 contended that the Reference Court has not considered the relevant evidence adduced by the State Authority. 7.1. Ms. Shah referring to the written statement at Exh. 25 also contended that even though specific contention of limitation was taken by the State, Reference Court has not even framed the issue of limitation. Ms. Shah also contended that relevant material adduced by the acquiring body has not been considered and the it was contended that the Reference Court has wrongly considered the evidence of Hitendra Shah at Exh. 44. Referring to the same, it was contended by Ms. Ms. Shah also contended that relevant material adduced by the acquiring body has not been considered and the it was contended that the Reference Court has wrongly considered the evidence of Hitendra Shah at Exh. 44. Referring to the same, it was contended by Ms. Shah that valuation made by the learned Valuer is based upon the valuation fetched in the auction price in the year 1995. Relying upon the judgment of the Hon'ble Supreme Court in the case of Maya Devi (Dead) Through Legal Representative and others vs. State of Haryana and Another reported in (2018) 2 SCC 474 , Ms. Shah contended that the incident after the issuance of Section 4 Notification cannot be considered while determining the market value. Ms. Shah contended that in the case on hand, Section 4 Notification is dated 22.09.1983 and as per the deposition of the Hitendra Shah at Exh. 44, the same valuation relates to the year 1995. Ms. Shah contended that the Reference Court has not taken any decision on the limitation aspect and has not considered several sale instances which was adduced as evidence. Ms. Shah contended that the valuation report of the Town Planning Officer at Exh. 57, the evidence in the form of Assistant Collector letter at Exh. 74 deposition of Town Planning Officer at Exh. 78 and the deposition of Executive Engineer at Exh. 79 has not considered at all and impugned award is based only on the valuation report which is based on the lease transaction of the municipality of the year 1995 and has decided the Reference. Ms. Shah further contended that even though there was ample evidence on record, the Reference Court without assigning any reason has not considered the relevant material on record and has taken into consideration the material which relates to 12 years after the date of Section 4 Notification and has fixed the market value. Ms. Shah contended that facts clearly reveals that since 1949 the acquiring body is in possession of the constructed property as well as land which is acquired and it was therefore, contended that the impugned award is based on total non application of mind and same is based on non germane material and relevant material on record, is not at all considered. Ms. Ms. Shah, therefore, contended that impugned judgment and award deserves to be quashed and set aside by allowing the appeal filed by the State and the price determined by the Land Acquisition Officer be confirmed and the appeal filed by the land owners being merit less, deserves to be dismissed. 8. No other and further submissions have been made by the learned advocates for the respective parties. 9. Before reverting to the submissions made by the learned advocates for the respective parties, it would be appropriate to state that the evidence which was adduced by the claimants as well as State, the land owners have examined one Shri Jayprakash B Kela at Exh. 21 wherein it is stated that the award passed by the Land Acquisition Officer is on a lower side and wrong. It is stated that the claimant had purchased the said land admeasuring 11898 sq. ft. by way of registered sale deed on 03.07.1972. The said land was purchased for commercial purpose and same is being used for police station. The subject land is situated in the center of city. He has further deposed on oath that in this case, earlier awards came to be passed on 31.08.1998, which is though not served upon the claimants, in which, the price determined is very less and trivial. It is further stated that section 4 notification was published on 01.04.1980, corrigendum section 4 notification was published on 22.03.1983 and section 6 notification was published on 04.01.1984, which was published on 05.01.1984 in the official gazette. He has further stated that the claimants had filed writ petitions before the Gujarat High Court which came to be dismissed by different orders and the interim relief granted therein, was also vacated. The deponent has further stated that the land which is acquired is situated in the prime business area where, the market price for lease land is Rs. 4,000/- and accordingly, the price of the land comes to Rs. 6 crore. It is further stated that in the nearby areas of the land in question, the sale price is not below Rs. 5,000/- per sq. ft., however, some times, in the sale deed, the price is shown less. However, if the market value is considered as per the specifications of the municipality, it cannot be considered below Rs. 5,000/- per sq. ft. 5,000/- per sq. ft., however, some times, in the sale deed, the price is shown less. However, if the market value is considered as per the specifications of the municipality, it cannot be considered below Rs. 5,000/- per sq. ft. The claimants are ready and willing to produce relevant evidence for the same. The price of the property is Rs. 6 crore and the claimants are required to be paid the said price. It is further stated that near to the acquired property, there is a hospital, which is the prime hospital of Banaskantha, which is situated in a prime business area, where, the municipality has effected lease for first floor where, the price per sq. ft. was Rs. 4,000 to 5,000/-. In his cross-examination, this witness has denied the suggestion that the construction is not a century old; and that they had not incurred expenses towards repairing; that no market existed at the relevant time when the land was acquired and the same was not developed, it is also denied that the price of the land was quite less. He has also denied that though they were served with section 9 notice, they did not remain present. He has specifically denied that for making reference under section 18, which should be within 6 months from the date of award and within 6 weeks from the date of receipt of section 12(2) notice, however, when attempt was made to serve the copy of the award dated 31.08.1998 and section 12(2) notice dated 09.09.1998, the same was refused. It is denied that the application was made beyond the prescribed period of limitation. 9.1. The land owners have further examined Hitendra Shah - Valuer at Exh. 44 and has relied upon the documentary evidence being Resolution of Committee at Exh. 28, application of Mulchand at Exh. 29 and Valuation Report of Hitendra Shah at Exh. 48. The resolution of Committee confirms the auction of plots of lower ground floor only. The auction purchaser shall not have any rights over the terrace and can make construction over the terrace and also give on lease. Hitendra Shah, in his deposition exhibit 44 has stated that the valuation report is based on his personal visit to site and drawing map after due measurement. The auction purchaser shall not have any rights over the terrace and can make construction over the terrace and also give on lease. Hitendra Shah, in his deposition exhibit 44 has stated that the valuation report is based on his personal visit to site and drawing map after due measurement. It is further stated that he has adopted standard engineering norms for deciding the market value, It is further stated that report is authenticated and reliable. In his cross-examination, this witness has stated that it is true that he has determined the approx value however he has estimated the same as per the SOR of the Government. He has further stated that it is true that he did not know that on the day when the valuation was done the property was vacated or not. It is further stated that the construction, which was valued at, would be weakened gradually. He has denied the suggestion that the valuation which he has done is not as per the auction price of the Municipality and was unnecessary and wrong. He has stated that the auction held by the Municipality was for vacant and physical possession. He has further deposed that he did not know that there was any sale deed for the same price as was determined by him in the Palanpur City; he had made the valuation on the basis of the market price and as per the SOR of the Government. Consideration by the Reference Court: 10. Reference Court has framed two issues at Exh. 12. (1) Whether compensation awarded by the Special Land Acquisition Officer is inadequate? and (2) If yes, what amount should be paid as additional amount of compensation? It can be seen from the impugned award that while deciding the issues whether the compensation granted by the Land Acquisition Officer was inadequate or not. The Reference Court has referred to Exhs. 78 and 79 i.e. deposition of Dy. Town Planner and deposition of Deputy Executive Engineer. However has not referred to any other evidence either adduced by the land owners or State. While determining the second issue to the effect that what should be amount paid as additional amount nothing noted that the evidence of Hitendra Shah the witness examined by the original claimant at Exh. 44 and the valuer report at Exh. However has not referred to any other evidence either adduced by the land owners or State. While determining the second issue to the effect that what should be amount paid as additional amount nothing noted that the evidence of Hitendra Shah the witness examined by the original claimant at Exh. 44 and the valuer report at Exh. 48 at page 254, the Reference Court has noted that in the said report learned Valuer has relied upon the lease transaction of municipality of the year 1995 and by giving deduction of 35%, has determined the issue no. 2 to the effect that what should be additional amount of compensation. Conclusion: 11. Having regard to the based on which the price is determined by the Land Acquisition Officer, it would be appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of Maya Devi (Dead) Through Legal Representative and others (supra). The Hon'ble Supreme Court in para 5 has observed thus: "5. So far as the first contention is concerned, the sale deed relied upon by the appellant claimants dated 27.12.1988 is post notification. Sub-section (1) of Section 23 of the Act provides that the compensation to be awarded shall be determined by the reference Court, based upon the market value of the acquired land at the date of the publication of the notification under Section 4(1). In Kolkata Metropolitan Dev. Authority vs. Gobinda Chandra Makal, it was held that the relevant date for determining the compensation is the date of publication of the notification under Section 4(1) of the Act in Gazette. In para 34, it was held as under: "34. One of the principles in regard to determination of the market value under Section 23(1) is that the rise in market value after the publication of the notification under Section 4(1) of the Act should not be taken into account for the purpose of determination of market value. If the deeming definition of "publication of the notification" in the amended Section 4(1) is imported as the meaning of the said words in the first clause of Section 23(1), it will lead to anomalous results. The owners of the lands which are the subject-matter of the notification and neighbouring lands will come to know about the proposed acquisition, on the date of publication in the Gazette or in the newspapers. The owners of the lands which are the subject-matter of the notification and neighbouring lands will come to know about the proposed acquisition, on the date of publication in the Gazette or in the newspapers. If the giving of public notice of the substance of the notification is delayed by two or three months, there may be several sale transactions in regard to nearby lands in that period, showing a spurt or hike in value in view of the development contemplated on account of the acquisition itself."] Applying the ratio of the above decision, we are of the view that the post notification instances cannot be taken into consideration for determining the compensation of the acquired land." 11.1. In the instant case, upon re-appreciation of the evidence, the deposition of Hitendra Shah at Exh. 44, it is quite clear that the learned valuer has not taken into consideration the valuation of the land acquired as on the date of Section 4 Notification who has considered and based the report on lease price of Palanpur Municipality which was fetched in the public auction in the year 1995 i.e. post Section 4 Notification and therefore, the impugned award is based on consideration of the price which prevailed in the year 1995 i.e. post Notification. Even though, there was plethora of evidence on record adduced by the parties. Therefore, the impugned award itself is based on the wrong consideration of the material which is not relevant as on the date of Section 4 Notification. The contention raised by the learned advocate for the land owners before this Court are as such not taken by the land owners before the Reference Court. Considering the application filed by the land owners at Exh. 1 and Exh. 16, the land owners have claimed that the constructed property is of the valuation of Rs. 4,50,000/- and the land would be valued at Rs. 5000/- per sq ft. Exh. 28 the Resolution dated 12.02.1995 passed by the Standing Committee of the Palanpur Municipality which shows the determination of the lease price is post Section 4 Notification. Similarly, the valuation report at Exh. 48 as well as deposition of Hitendra Shah, learned Valuer has referred to auction based upon the said Resolution of Standing Committee even in the para 6 of his examination in chief and the price determined by the learned valuer and the report at Exh. Similarly, the valuation report at Exh. 48 as well as deposition of Hitendra Shah, learned Valuer has referred to auction based upon the said Resolution of Standing Committee even in the para 6 of his examination in chief and the price determined by the learned valuer and the report at Exh. 48 is thus based on the lease price post Section 4 Notification. On further re-appreciation of evidence in the form of valuation report at Exh. 49 which relates to land acquired i.e. City Survey No. 11429 and 11430, Sheet No. 50 and Municipal House No. 21809, 21810, 21811, 21812 and 21812/1 has clearly mentioned that as per the Municipal record shops in the shopping center were given on lease in the year 1995 and on that basis has determined the valuation of the land in question. 12. As observed herein above, the other evidence adduced by the land owners as well as State is not dealt with by the learned Reference Court including the fact of position of land in question as on the date of Section 4 Notification. The map as well as photographs which are relied upon by Ms. Acharya, learned advocate for the land owners are not forming part of the evidence on record. Thus, it clearly appears that learned Reference Court has not considered the evidence on record and has passed the entire impugned award based upon the valuation report and the deposition of the valuer at Exhs. 48 to 54 and Exh. 44 (deposition of Mr. Hitendra Shah) respectively and has deducted 65% of the valuation and has determined the market value of the land under acquisition being 35% of the valuation of the property. Thus, the Reference Court has failed to consider the other relevant evidence on record. 13. It is also pertinent to note that the proceedings initiated for acquisition of land and building in question was challenged by the land owner by filing Special Civil Application Nos. 1535 of 1984 and 1536 of 1984, which came to be dismissed vide judgment and order dated 11.01.1996. Thereafter, again two writ petitions being Special Civil Application Nos. 6786 of 1998 and 7738 of 1998 were preferred by the owners, which came to be dismissed on 26.12.2002. Therefore, from 1984 to 11.1.1996 the further proceedings under the Land Acquisition Act were stayed by this Court. As pointed out by Ms. Thereafter, again two writ petitions being Special Civil Application Nos. 6786 of 1998 and 7738 of 1998 were preferred by the owners, which came to be dismissed on 26.12.2002. Therefore, from 1984 to 11.1.1996 the further proceedings under the Land Acquisition Act were stayed by this Court. As pointed out by Ms. Acharya, learned advocate for the land owners that interim relief was granted by this Court in Special Civil Application No. 6786 of 1998 on 1.9.1998 and Special Civil Application No. 6786 of 1998 and Special Civil Application No. 7738 of 1998 came to be dismissed on 26.12.2002. As pointed by Ms. Acharya and as per the record, the appeals were disposed of vide order dated 10.08.2015 on a statement made by learned Assistant Government Pleader that Government has decided to give land in question back to the original owners. However, the land was not given back, and on review application being filed i.e. MCA No. 2385 of 2015 the appeals were revived. 14. Upon considering the aforesaid facts and impugned judgment and award, the learned Reference Court has committed an error in considering the evidence which relates to post Section 4 Notification and has also committed an error in not considering the evidence on record. The land owners are entitled to adequate compensation, however the same has to be determined as per the evidence on record and in accordance with law. The Hon'ble Supreme Court in the case of Chimanlal Hargovindas vs. Special Land Acquisition Officer, 1 Poona and Another (1988) 3 SCC 751 has laid down principles on which the market value of the land under acquisition is to be determined and has observed thus: "4. The following factors must be etched on the mental screen: (1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. (2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court. (3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under S. 4 of the Land Acquisition Act (dates of Notifications under Ss. 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under S. 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. (7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value. (8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of land.) (9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (Sometimes instances are rigged up in anticipation of Acquisition of land.) (9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (10) The most comparable instances out of the genuine instances have to be identified on the following considerations: (i) proximity from time angle (ii) proximity from situation angle. (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:- Plus Factors Minus Factors 1. Smallness of size. 1. Largeness of area. 2. Proximity to a road 2. Situation in the interior at a distance from the road. 3. Frontage on a road 3. Narrow strip of land with very small frontage compared to depth. 4. Nearness to developed area 4. lower level requiring the depressed portion to be filled up 5. Regular shaaape 5. Remoteness from developed locality. 6. Level vis-à-vis land under acquisition 6. Some special disadvantageous factor which would deter a purchaser 7. Special value for an owner of an adjoining property to whom it may have some very special advantage. (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say 10000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction byway of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense." The Reference Court has not kept in mind the principle laid down by the Hon'ble Supreme Court in the case of Chimanlal Hargovindas (supra) and even though there was other evidence, has relied upon the price of the year 1995 that too for the shops which were leased out by the municipality and has not taken into consideration the factors relevant for determination of price. 15. Upon considering the observations made by the learned Reference Court even though other evidence was there, the Reference Court has failed to consider the same. 15. Upon considering the observations made by the learned Reference Court even though other evidence was there, the Reference Court has failed to consider the same. Even at the cost of repetition, it deserves to be noted that land owners are entitled to adequate compensation and such compensation is to be determined in accordance with law based upon the evidence on record and the manner in which the Reference Court has determined the compensation, is not in accordance with law. The market value to be determined as it existed on the date of Section 4 Notification and same cannot be based on market price which existed post Section 4 Notification. In light of the aforesaid facts and the pending litigations, the contention raised by the land owners that the considerable time has passed, though correct in fact of this case, as the Reference Court has not determined the market value in accordance with law, this Court has left with no alternative but to quash and set aside the impugned judgment and award and remand back the proceedings. 16. In such peculiar facts and circumstances, therefore, this court deems it fit to quash and set aside the impugned judgment and award dated 24.04.2007 passed by the learned Principal Senior Civil Judge, Palanpur in Land Acquisition Reference Case No. 2 of 2003 and remand back the proceedings of land Reference Case No. 2 of 2003 to the learned Reference Court. The Reference Court shall re-hear the parties from the stage of argument and after considering the evidence on record, pass fresh judgment and award. Such exercise shall be completed not later than 31.01.2020. Both the parties are at liberty to take all available contentions before the learned Reference Court. Both the parties shall cooperate with the Reference Court in disposal of the Reference Case as early as possible. Record and proceedings be transmitted to the Reference Court forth with. With this, both these appeals are allowed to the aforesaid extent.