(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Appeal is admitted.
2. Learned advocate, Mr.Vijay N. Raval who appeared in response to our notice dated 9.2.2012 on behalf of respondents, waived notice of admission of the appeal.
3. In the facts and circumstances of the case, after dispensing with filing of paper book, we take up this appeal for hearing forthwith.
4. The appeal is filed by the State and its authorities challenging the judgment and award dated 15.9.2009 passed by the learned 5th Additional Senior Civil Judge, Godhara in Land Reference Case No.112 of 2005.
5. By notification under Section 4(1) of the Land Acquisition Act issued on 1.8.2002, the appellants initiated proceedings for acquisition of 54 Are and 74 mtrs. of land out of Survey No.22/1 and 24 belonging to the present opponents. The Land Acquisition Officer passed his award on 12.5.2003 awarding compensation @ Rs.80,000/- per Hector i.e. Rs.8/- per sq. mtrs. The land owners dissatisfied with the award passed by the Land Acquisition Officer, challenged the same before the District Court. Their Land Reference Case No.112 of 2005 came to be decided by the impugned judgment of the Reference Court. The learned Judge awarded additional compensation @ Rs.147/- per sq. mtrs. He also granted other benefits such as additional amount under Section 23(1a) of the Act and solatium under Section 23(2) of the Act in addition to statutory interest on such enhanced compensation.
6. It is this award that the State has challenged in the present appeal.
7. Prima facie finding that the Reference Court had granted enhancement of the compensation without assigning any reasons or indicating the basis on which such revision was allowed, on 9.2.2012 we had issued notice passing following order :
" Learned Assistant Government Pleader for the applicants submitted that the Reference Court has granted enhancement in the compensation without assigning any reason or without indicating any basis for such revision in the market value of the land.
NOTICE returnable on 23rd February 2012.
Direct Service is permitted."
8. We have heard learned AGP, Ms.Moxa Thakker for the appellant and learned advocate, Mr.Vijay N. Raval for the claimants.
9. Learned AGP, Ms.Moxa Thakker submitted that the Reference Court has granted substantial revision in the compensation payable to the claimants without assigning any reasons or even indicating any basis on which such revision was granted.
10. On the other hand, learned advocate, Mr.Raval submitted that the claimants had produced cogent evidence in support of their claim. The learned Judge had taken into account award of the Reference Court dated 18.4.2009 in which lands under acquisition were situated in the nearby village and were acquired by the notification issued under Section 4 of the Act on the same day i.e. on 1.8.2002. He, therefore, submitted that whatever be the minor omissions in the award of the Reference Court, the claimants should not be made to suffer for the same.
11. Having heard learned counsel for the parties and having perused the documents on record, from the award of the Reference Court, we are unable to find any reasons why the learned Judge was persuaded to enhance the compensation from Rs.8/- per sq. mtrs. granted by the Land Acquisition Officer to Rs.155/- per sq. mtrs. The learned Judge has given no reasons for such conclusion. The learned Judge recorded that the claimants failed to produce any cogent and convincing evidence in respect of their income (from the land in question) and the irrigation facilities available to them for the purpose of agriculture. He, therefore, observed that the compensation demanded @ Rs.400/- per sq. mtrs. was very high and the claimants were not entitled to such enhancement.
12. While saying so, the learned Judge granted enhancement of Rs.147/- per sq. mtrs. over and above what was awarded by the Land Acquisition Officer by determining the market value of the land @ 155/- per sq. mtrs. To do so, the learned Judge observed as under :
"Jalubhai Somabhai Maliwad have been cross-examined by learned DGP Mr.P. L. Gandhi for the opponents, but nothing has come on record from the said cross-examination. Moreover then opponents have either adduced any oral evidence or furnished any concrete documentary evidence land assessed. Therefore, I answer issue No.1 in affirmative and I am of the opinion that the true market value of the acquired land should be determined at the rate of Rs.155/- (rupees one hundred fifty five only) per square meter and the claimants are entitled for the same. The claimants are entitled to additional compensation at the rate of Rs.147/- (rupees one hundred forty seven only) per square meter and solatium and interest thereupon. I answer issue No.2 accordingly and pass the following final order in the interest of larger justice."
13. Except for the above portion reproduced, the learned Judge has given no reasons for granting the enhancement in the compensation. We are afraid the comments of the learned Judge cannot be seen as sufficient reasons for awarding compensation to the claimants.
14. If there was any basis in which the learned Judge was persuaded to grant such revision, same has not been referred in his order.
15. It may be that the claimants had placed reliance on award in case of land situated in nearby vicinity. However, before basing his conclusion on such award, the learned Judge had to undertake the exercise of comparing the relevant features of both the acquisitions such as the date of Section 4(1) notification, the situation of the lands in question, respective advantages and disadvantages which the lands carried and such other relevant factors. Without any reference and without even comparing two parcels of the lands, the learned Judge could not have proceeded to revise the compensation payable to the claimants.
16. Under the circumstances, the impugned judgment and award is set aside. The proceedings are remanded to the Reference Court for fresh consideration and disposal in accordance with law. This may be done expeditiously and preferably within six months from the date of receipt of the copy of this order.
17. With the above directions, the first appeal is allowed and disposed of.
(AKIL KURESHI, J.) (C.
L. SONI, J.) (vipul) Top