The present two appeals have been filed by the appellants challenging the common judgment and award passed by the learned Asst. Judge, Bhrauch in Land Reference Case Nos. 25/81 to 37/81 dated 31.12.1982, (consolidated in Land Acquisition Reference Case No. 32/81) on the grounds stated in the memo of the appeals. First Appeal No. 1953 of 1983 arises out of Land Reference Case No. 26/81 and First Appeal No. 1715/83 arises out of Land Reference Case No. 32/81. 2. The facts of the case as narrated in the judgment are that the lands of the appellants were acquired pursuant to the proposal made to the Collector of Bhrauch by the Executive Engineer, Panchayat Division, for the purpose of construction of percolation tank. The lands are situated at Sultanpura, Taluka Jhagadia, Dist. Bharuch. Notification under sec. 4 of the Land Acquisition Act was issued on 29.3.1976 and published in the government gazette on 20.5.76. Thereafter the notification under sec. 6 of the Act was published in the government gazette on 28.7.1977 and after notices were served, the Land Acquisition Officer awarded compensation. Therefore, the references were made to the Reference Court by the claimants including the appellants herein by the aforesaid reference cases and the Reference Court, on the basis of the material and evidence, and after hearing both the sides, allowed the references and enhanced the compensation at the rate of Rs.
275 per Are by the impugned judgment and award, which is challenged in the present two First Appeals on the grounds mentioned therein, inter alia, that the Reference Court has failed to appreciate the material and evidence on record. It is specifically contended that the Reference Court has failed to consider that the land was having mango trees and there was a specific crop and the yield. It is also contended that the Reference Court has failed to consider the development around the nearby vicinity of the lands acquired which has been discussed in the impugned judgment.
3. Heard learned advocate Mr. Pandya for the appellants and learned AGP Mr. Ronak Raval for the respondent.
4. Learned advocate Mr. Pandya referred to the judgment of the Reference Court and emphasised that there was development and the land was situated just 1 km away from the Railway Station or the village site and it was at the outskirts of village Jhagadia. He further emphasised about the location and stated that the land is located near an industrial area, high school, Jain boarding and other educational institutions. Learned advocate Mr. Pandya submitted that even in 1980 when adjoining land was acquired for other purposes like construction of a hospital, the amount awarded was Rs. 40/sq.mtrs. or Rs. 30/sq.mtrs as per Land Reference Case Nos. 720 and 721 of 1986 decided by the Reference Court at Bharuch. The said judgment of the Reference Court has not been assailed and therefore on that basis the enhancement may be made in the compensation.
5. Learned advocate Mr. Pandya also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Bhag Singh and ors. v. Union Territory of Chandigarh, reported in AIR 1985 SC 1576. He has also referred to and relied upon the judgment of this Court reported in AIR 1985 Gujarat 200 to submit that the solatium has been awarded at the rate of 30% on excess or additional amount of compensation.
6. Learned AGP Mr. Raval, however, pointedly referred to the discussion in the impugned judgment of the Reference Court and submitted that the Reference Court has discussed in detail about all the aspects with regard to the industrial and other developments in the near vicinity of the lands in question. He submitted that the land in question was at the outskirts of the village, whereas the other land of which acquisition has been made for the hospital is in the locality. Further, he submitted that the land in question is in 'khadi' area. It has been also noted by the Reference Court that the building potentiality of this land cannot be equated with the building potentiality of the lands under acquisition in the other case. It was a discussion with regard to other land which was having the housing society and there was some sale deed executed which was relied upon and therefore it has been stated that it cannot be compared as the building potentiality of the land in question is not the same. There is a reference to the map, exh. 36, and it has beens specifically observed that 'khadi' is also shown in the map, exh. 36 that these lands cannot have any building potentiality since they abut on the khadi. He therefore submitted that it will reduce the value of the land and therefore having considered all the aspects the award has been made which is just and proper and the appeals may not be entertained.
7. In view of rival submissions, it is required to be considered whether the present First Appeals can be entertained or not.
8. As could be seen from the discussion in the impugned judgment of the Reference Court, the Reference Court has in fact considered the aspect of yield with reference to specific crops and also the potential development in the near vicinity. At the same time there is also a discussion referring to exh. 36 map in respect of the lands in question that it is a 'khadi' land where the building potentiality would be less. At the same time, there is development like a housing society as well as the high school, Jain boarding and other educational institutions. Admittedly, the railway station is just 1 km away though the land in question is stated to be at the outskirts of village Jhagadia. The reference made to other land, for which, the document has been produced at Exh.25 for the purpose of showing the potentiality is required to be considered in background of the relevant aspect. The society or the township of Jhagadia-Sultanpura, for which, the document is produced at Exh.25 is later point of time and it was for the society and, therefore, it cannot be compared for the purpose of deciding the market value of the land in question. The land in question which has been acquired is a khadi land with less building potentiality and therefore the Reference court has made a detailed discussion on this aspect that it will reduce the value of the land. At the same time, there is also a reference to the judgment of this Court in appeal in another reference case where this Court had fixed the compensation at Rs. 200 per guntha and relying on that the Reference Court has revised or enhanced the compensation at the rate of Rs. 275 per Are.
9. Therefore, considering the totality of the facts and all the relevant criteria which have to be considered in such matters under the Land Acquisition Act and keeping in view the principle of eminent domain which is well accepted by catena of judicial pronouncements of the Hon'ble Apex Court stating that the right to property or land may not be a fundamental right, but is an important right for which a person may be compensated though the lands have been acquired for any public purpose, it would be in fitness of things if the just compensation is awarded for any such acquisition. Therefore, though it is a land which may not have the building potentiality, admittedly, there is sufficient potentiality for development in the near vicinity. There is a reference to Land Reference Case Nos. 720 and 721/86 in respect of subsequent acquisition of lands for a hospital where the amount awarded is Rs. 30 or 40 per sq.mtr. There is no doubt that these acquisitions were later that is almost after 5 years and therefore even if it is considered as a broad indication, still, the same amount cannot be awarded. At the same time, it will require enhancement when it is compared to other cases that immediately within 5 years there is substantial revision or enhancement in the compensation.
10. Therefore, to strike a balance between the claim made by the claimants as well as the authority, it will be in the fitness of things if the amount of compensation is enhanced to Rs. 700 per Are instead of Rs. 275 per Are with proportionate increase in the corresponding amount of solatium which has been awarded which will be calculated by the respondent.
11. The present appeals, therefore, deserve to be partly allowed and accordingly stand allowed to the aforesaid extent.
(Rajesh H. Shukla, J.) (hn)