(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. ADMIT. Learned counsel Mr. Saurabh Amin for the respondent No.1- original claimant and learned Assistant Government Pleader Ms.Moxa Thakkar for the respondent Nos.2 and 3 waive service of notice of admission.
2. Upon hearing the learned advocate Ms. Niyati Juthani with Mr. Meena for the appellant, learned advocate Mr. Saurabh Amin for the respondent No.1- legal heirs of the original claimant and learned Assistant Government Pleader Ms. Moxa Thakkar for respondent Nos.2 and 3, it appears that the present matter is part of the group of First Appeal No.1699 of 2012 and allied matters, which came to be decided on 5.7.2012, and as per the reasons recorded in the said judgment, following was the operative portion of the order:-
“11. In view of the aforesaid observations and discussion, it is observed and held that the original claimants shall be entitled to additional compensation at Rs.52/- per Sq. Mtr. Other benefits as awarded by the Reference Court under Sections 23(1-A) of the Act for increase in the price, solatium under Section 23(2) and interest under Section 28 of the Act, are by way of statutory consequences and hence, they are not required to be interfered with, save and except with the clarification that all such amount shall be available on the net amount of additional compensation at Rs.52/- per Sq. Mtr. The appeals are partly allowed to the aforesaid extent. The award of the Reference Court shall stand modified accordingly. No order as to costs.”
3. Present matter was left out of the said group because the original claimant had expired and his legal heirs were not brought on record.
4. Learned counsel for both the sides submit that the same order, as was passed in the aforesaid matters, may be passed. We may state that in the said matter, this Court has observed thus:-
“9. The aforesaid would lead us to examine as to whether the other evidence on record did exist before the Reference Court and consideration thereof. In our view, the reasons recorded by the Reference Court in not considering or rather discarding the evidence of the lease agreement produced in the evidence of the claimants, are that they are the lease agreement and therefore, the Reference Court has discarded the evidence. Further, the Reference Court has observed that the GIDC is a statutory body and it has to work as per the policy of the Government and therefore, if any amount is fixed on lease basis and rent is fixed, such cannot be treated as market price of the land and therefore, the Reference Court has not considered the said evidence for assessing the market value of the land. We find that such an approach on the part of the Reference Court is erroneous on the face of it inasmuch as when market value of any land is to be assessed, the basis would be the price prevailing of the property in the market. Rental income to be derived from the property would also be one of the factors to be considered for assessing the market value. If it is a matter where the other more reliable evidence is available, the Court may decline the consideration of the rental income of the property but if no other reliable evidence is available, the Reference Court may be required to consider the rental income of the land in question. In our view, except the consent award for acquisition of the land at the very village, no other evidence except the evidence of allotment of land at the very village by GIDC to various industrial entrepreneurs was credit-worthy. Further it is also required to be borne in mind that no property will have a rental income more than the market value of the land. It is bound to be less than the market value of the land. If evidence produced is taken into consideration of lease deed, it can be said that during the period 1993- 1994, lands were allotted by GIDC at Rs.60/- to Rs.80/- per Sq. Mtr. and if it is averaged out, such figure would come to Rs.70/- per Sq. Mtr. Evidence further shows that as per the said agreement, GIDC is to collect rental income only and roads and other basic infrastructural facilities are to be developed by the company or allottee. Therefore, it is not the case where GIDC after acquisition of the land has developed and created basic infrastructural facility for establishing any industry and thereafter has allotted the land. It is true that even if road and other facilities are to be made by entrepreneur, in any GIDC estate, GIDC may be required to make arrangement for other incidental facilities of an industry, may be electricity, drainage, etc. Keeping in view the said aspects, even if deduction is made of 30% from the aforesaid amount, figure would come to about Rs.49/- per Sq. Mtr. Further allotment by GIDC to GACL and Pushpa Polymers is in the year 1993-94 and therefore, if appreciation is considered at the rate of 10% per annum, such figure would come to Rs.54.9 and rounding would come to Rs.55/- As against the same, the Reference Court has assessed the market value at Rs.55.50 ps. per Sq. Mtr. Therefore, we find that the ultimate assessment of the market value of the land even if evidence is to be taken into consideration, would stand and to that extent, ultimate conclusion recorded by the Reference Court would not call for interference.
10. Learned counsel for the respondents-claimants is not in a position to dispute that the Reference Court after assessing the market value at Rs.55.50 ps. per Sq. Mtr. has not considered the aspect of compensation awarded at Rs.3.50 ps. per Sq. Mtr. by the Special Land Acquisition Officer and, therefore, has committed error in mentioning the amount of Rs.55.50 ps. per Sq. Mtr. as “additional compensation” instead of word, 'compensation'. It is an admitted position that the claimants have been awarded compensation at Rs.3.50 ps. per Sq. Mtr. by the Special Land Acquisition Officer as per the award. Therefore, if the finding of the Reference Court was that Rs.55.50 ps. per Sq. Mtr. was market value of the land, it could have awarded compensation at Rs.55.50 ps. per Sq. Mtr. or it could award net amount of compensation, i.e. Rs.55.50 - Rs.3.50 = Rs.52.00/- per Sq. Mtr. as additional amount of compensation. In the present case,in the operative portion, the Reference Court has mentioned Rs.55.50 ps. per Sq. Mtr. as additional amount of compensation. In our view, even if the finding of the Reference Court for assessing the market value of the land at Rs.55.50 ps. per Sq. Mtr. is maintained, the claimants would be entitled to additional compensation at Rs.52/- per Sq. Mtr. since amount of Rs.3.50 ps. per Sq. Mtr. has already been awarded as compensation by the Special Land Acquisition Officer. Therefore, the judgment and award of the Reference Court deserves to be modified to that extent only.”
The same view deserves to be taken in the present matter. Hence the following order:
5. It is observed and held that the original claimants shall be entitled to additional compensation at Rs.52/- per Sq. Mtr. Other benefits as awarded by the Reference Court under Sections 23(1-A) of the Act for increase in the price, solatium under Section 23(2) and interest under Section 28 of the Act, are by way of statutory consequences and hence, they are not required to be interfered with, save and except with the clarification that all such amount shall be available on the net amount of additional compensation at Rs.52/- per Sq. Mtr. The appeal is partly allowed to the aforesaid extent. The award of the Reference Court shall stand modified accordingly. No order as to costs.
ORDER IN CIVIL APPLICATION NO.8855 OF 2012:
In view of the order passed in the main First Appeal, present Civil Application would not survive and shall stand disposed of accordingly.
(JAYANT PATEL, J.) omkar (C.L. SONI, J.)