IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 3887 of 2012 With CIVIL APPLICATION NO. 13656 of 2012 In FIRST APPEAL NO. 3887 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.H.WAGHELA and HONOURABLE MR.JUSTICE G.R.UDHWANI ================================================================
1 Whether Reporters of Local Papers may be allowed to see NO the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO judgment ?
4 Whether this case involves a substantial question of law as NO to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO ================================================================ BHARAT SANCHAR NIGAM LIMITED THROUGH PGMTD Appellant Versus SURAT PANJARAPOLE TRUST TRHOUGH TRUSTEES & 9 Defendant(s) ================================================================ Appearance:
MS ROOPAL R PATEL, ADVOCATE for the Appellant. DELETED for the Respondent(s) No. 4 MRS KETTY A MEHTA, ADVOCATE for the Respondent(s) No. 2 - 3 , 5 – 9 MR NIRAJ ASHAR, AGP for Respondent No.10 ================================================================ CORAM: HONOURABLE MR.JUSTICE D.H.WAGHELA and
HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 14/12/2012 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE G.R.UDHWANI)
1. Bharat Sanchar Nigam Limited for whom the lands in question were acquired for staff quarters and who was not a party before the Referral Court, is in appeal before this Court under Section 54 of the Land Acquisition Act read with Section 96 of the Code of Civil Procedure, questioning the judgment and award dated 31.12.2010 enhancing the compensation from Rs.150/ per sq.mtr to Rs.225/ per sq.mtr in Land Reference Case No.527 of 1987.
2. The contention raised by the appellant are that, despite the respondents No.1 to 9 having not adduced any substantial evidence and despite the Referral Court having declined to rely upon the evidence produced by the said respondents, and despite the fact that for the adjacent lands bearing Plot No.5/C and 5/D, this Court had confirmed the award of Rs.150/ per sq.mtr which fact was suppressed by the said respondents, the Referral Court materially erred in enhancing the compensation without any material or basis before it. It is also argued that, appellant being an affected party, ought to have been called upon by the Referral Court to defend the case, and since the award is made without hearing the appellant, it deserves to be set aside. It is also argued that the claimants had wasted a lot of time in the Referral Court, and despite the reference case having been filed in the year 1997, the evidence was adduced only in the year 2001, and thereafter it was kept pending for nine years for no fault of the appellant, the appellant could not have been saddled with interest. However, the Referral Court has awarded solatium at the rate of 30% and also awarded interest at the rate of 12% for the period from 13.11.1983 to 27.4.1987, and on this entire amount so arrived, awarded interest at the rate of 9% for first year from the date of taking over the possession and thereafter at the rate of 15% for the period until depositing the amount in the Court. In his submission, the interest so awarded by the Referral Court is on the higher side and the Referral Court ought to have exercised the discretion under Sections 28 and 34 of the Act.
3. After hearing the learned advocates for the parties and on perusal of the judgment and award in question, we find that substantially an evidence as to nonagricultural small plots was produced before the Referral Court, whereas the lands under acquisition were agricultural lands, and were sought to be included in Town Planning Scheme. The evidence before the Referral Court indicated the price range of such lands between Rs.150/ per sq.mtr and Rs.900/ per sq.mtr. The Referral Court, after considering the above position, appreciated the evidence before it, and found that the lands in question were partly surrounded by residential area, and as to potentiality of the land, the Referral Court relied upon the award made by acquiring authority under Section 11 of the Act, and found that there was a direct approach from the T.P.Road to the lands in question and residential locality, Housing Societies, Apartments, Cinema Hall, Civil Hospital, Medical College, ITI College, Engineering College, Fire Station of Surat Municipal Corporation were available within the immediate vicinity of the lands in question, and in the Map of Surat Urban Development Authority the land in question was sought to be included in the residential area and also in the Municipal Local Limits. On consideration of all the aforesaid relevant aspects, and on consideration of the fact that in the past three years, the land in the immediate vicinity were sold for the price of Rs.200/ per sq.mtr to Rs.900/ per sq.mtr, and on consideration of the fact that land was potential enough to be converted into nonagricultural land, a 50% rise for potential value of the land was given by the Referral Court. The Referral Court also found that initial burden of establishing the fact that the award made by the Collector was inadequate was on the claimants, and on the basis of above stated facts, that the award was inadequate. As per the decision rendered in the case of Special Land Acquisition Officer Vs. Siddappa Omanna Tumari reported in (1995) 2 SCC 168, once the claimant succeeds in proving that the amount determined under the award of the Collector was inadequate, the burden of proving the correctness of the award shifts on to the Collector who has to adduce sufficient evidence in that behalf to sustain such award. Thus, in absence of any further evidence adduced by the Collector, the Referral Court determined Rs.225/ per sq.mtr as price of the lands in question.
4. In view of the above discussion, we find that although the Referral Court did not accept the evidence adduced by the claimants in toto, it has drawn permissible inferences on the basis of material placed before it, and while partly relying upon such material and then appreciating the potential value of the land in question has rightly determined the price of the land in question at Rs.225/ per sq.mtr. In the above circumstances, it is misconceived to say that there was no evidence worth the name before the Referral Court. The reliance placed upon by appellant on the judgment and award confirmed by this Court vide its judgment and order dated 8.3.2010 in First Appeal No.1322 of 1988 in respect of adjacent land is misconceived on facts inasmuch as it is noticed on perusal of the said decision of this Court that the appellant had agreed to accept Rs.120/ per sq.mtr as price of land before the Land Acquisition Officer and the Referral Court has enhanced it to Rs.150/ per sq.mtr, and thus in the facts of that case, the High Court refused to enhance the compensation.
5. It is too late for the appellant to state that it ought to have been called upon by the Referral Court to defend the case, it being an affected party, inasmuch as the lands in question were acquired for the purpose of appellant and the appellant had knowledge of acquisition proceedings, and if interested, could have pursued the matter before the Referral Court.
6. The appellant has not pointed out as to how the claimants were responsible for the delay caused in conducting the case before the Referral Court and, therefore, the contention in that regard stands rejected.
7. As to grievance regarding interest, we find that the Referral Court has awarded interest as permissible under the provisions of the Act and we find no reason to interfere with the said aspect.
8. In view of what has been discussed above, we do not find any reason to interfere with the award made by the Referral Court. Hence, this appeal deserves to be dismissed in limine.
9. In view of the above discussion, the appeal fails and is dismissed in limine.
10. Civil Application also stands dismissed with no order as to costs.
(D.H.WAGHELA, J.) (G.R.UDHWANI, J.) syed/