(Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) This appeal under Section 54 of the Land Acquisition Act, 1894 is directed against the judgment and order dated 30.4.1988 of the learned Joint District Judge, Valsad at Navsari in Land Reference Case Nos.4 and 5 of 1979 for enhancement of compensation amount as the Reference Court disallowed the appellants' claim for additional compensation. The Cross Objections are directed against that part of the judgment and award of the Reference Court by which the respondents are directed to pay additional 15% solatium, over and above 15% solatium awarded by the Land Acquisition Officer.
2. The facts leading to filing of this appeal and Cross Objections, shortly stated, are as under :-
2.1 The Housing Commissioner, Gujarat Housing Board, Ahmedabad requested the Collector, Valsad by letter dated 8.11.1971 to acquire lands of Village Desra/Bilimora for the purpose of constructing a housing scheme for the Gujarat Housing Board. Accordingly, a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act ) was issued on 29.6.1972 for acquisition of the lands of the petitioners and others.
2.2 Section 4 notification was published on 29.6.1972 and notices under Section 4 were sent to the interested persons on 18.7.1972 inviting objections against the proposed acquisition. Thereafter, Section 6 notification was issued on 6.2.1975 and was published on 24.4.1975. The Special Land Acquisition Officer issued notices under Section 9 and invited claims for compensation. The claimants i.e. the appellants herein claimed compensation for the lands at the rate of Rs.15/- per sq. ft. i.e. Rs.161.40 ps. per sq. mtr. The Special Land Acquisition Officer in his award dated 12.9.1978 determined market value of the land at the rate of Rs.15/- per sq. mtr. for city survey No.3285 and Rs.12.50 per sq. mtr. for city survey No.3255. Rs.1/- per sq. mtr. was determined for the land of survey No.3286, as it was considered as margin cum road land. Possession of the lands was taken over by the Land Acquisition Officer on 26.9.1978.
2.3 The Land Acquisition Officer awarded compensation as well as solatium in respect of the aforesaid lands as under :-
Land Reference Case No. City Survey No. Rate awarded by the Land Acquisition Officer (Rs.) (per sq. mtr.) Area (in sq. mtrs.) Amount of Compensation (Rs.) Amount of Solatium (Rs.) 4 / 1979 3255 12.50 8416 1,05,125.00 15,768.75 3286 1.00 778 778.00 116.78 5 / 1979 3285 15.00 1769 26,535.00 3,989.25 3286 1.00 778 778.00 116.78 The appellants (claimants in Land Reference Case No. 4 of 1979) are related to each other, as appellant No.1 Fakirchand Zaverchand is the father of appellant Nos.3 to 6 and husband of claimant No.2 who died during pendency of the reference. The claimant of Land Reference Case No.5 of 1979 is the son of appellant No.1 and brother of the other appellants. Said reference was separately filed as the sole claimant therein Vasantlal Fakirchand had obtained his own share in the partition cum settlement which had taken place prior to the date of Section 4 notification. The present appeal arises from Land Reference Case No. 4 of 1979. We are not concerned with Land Reference Case No. 5 of 1979.
2.4 It appears that Land Reference Case Nos. 4 and 5 of 1979 were not taken up for hearing when the references in respect of the other lands acquired under the same notification under Section 4 (and the same notification under Section 6) were heard and decided by the Reference Court. Those references were dismissed by judgment and award dated 31.3.1984. Reference Case Nos. 4 and 5 of 1979 reached hearing in April 1988. By the judgment and award dated 30.4.1988, the Reference Court followed the aforesaid judgment dated 31.3.1984 and also gave its reasons for rejecting the appellants' claim for compensation at a higher rate. The Reference Court did, however, award additional 15% solatium, over and above solatium awarded by the Land Acquisition Officer at the rate of 15%, because the award came to be made after coming into force of the Amending Act 68 of 1984 with effect from 24.9.1984.
3. The claimants have filed the First Appeal for enhancement of the compensation amount and the Gujarat Housing Board has filed the Cross Objections challenging that part of the judgment and award by which additional solatium of 15% is awarded by the Reference Court, over and above 15% solatium awarded by the Land Acquisition Officer.
4. Mr Shirish Joshi, learned counsel for the appellants has challenged the judgment and award of the Reference Court mainly on the following grounds :-
(i) The appellants had made an application for reference under Section 18 of the Act and the reference was numbered as Land Acquisition Reference Case No.4 of 1979. The appellants are, therefore, entitled to make their own claim for higher compensation and such claim could not have been rejected on the ground that the claim made by the other land holders for higher compensation was rejected by the Reference Court by judgment and award dated 30.4.1984. It is submitted that in any view of the matter, the appellants are entitled to challenge before this Court the judgment and award of the Reference Court in their own Land Reference Case because this Court would not be bound by the judgment of the Reference Court in another Land Acquisition Reference merely because the lands in both the cases were covered by the same notifications under Sections 4 and 6 of the Act.
(ii) The Reference Court erred in not giving due weightage to the location of the acquired lands which were surrounded by the housing colonies even before issuance of Section 4 notification. The lands were included in the residential zone of the development plan for Bilimora Municipal area within the limits of which the lands were already included prior to issuance of Section 4 notification. The acquired lands are also close to Bilimora Chikhli Road. It is, therefore, vehemently submitted that the lands were already located in a well developed urban area of Bilimora Municipality but the Land Acquisition Officer determined the market value of the land only by considering them as agricultural lands.
(iii) The Reference Court grossly erred in not acting upon the sale instances produced by the appellants before the Reference Court, merely because the purchasers of these other lands gave opinion in their deposition about location of the appellants' lands being better than the lands of those purchasers. It is submitted that even if the opinion of such purchasers could not be considered for the purpose of assessing higher market value for the appellants' lands, at least the fact that the lands of those sale instances were purchased in 1971 1972 at the rate of Rs.7/- to Rs.17/- per sq. ft. i.e. Rs.80/- to Rs.187/- per sq. mtr. ought to have been accepted and the market value of the appellants' lands was required to be determined on that basis.
(iv) Reliance is placed on the documents produced with Civil Application No. 9384 of 2007 for additional evidence which was already filed in October 2003 and which was ordered to be heard with the present appeal.
(v) Reliance is also placed on the decision of the Apex Court in Sunder Vs. Union of India, AIR 2001 SC 3516 in support of the contention that the appellants are entitled to get interest under Section 28 of the Act on the additional amount of compensation as well as on the additional solatium.
5. On the other hand, Mr Nikunt Raval, learned AGP for the Land Acquisition Officer and Mr Saurin A Mehta, learned counsel for respondent No.2 Gujarat Housing Board have opposed the appeal and also submitted as under :-
5.1 The appellants have no right to produce the documents as additional evidence because the appellants had adequate opportunity of leading such evidence before the Reference Court. Strong reliance is placed on the decision of the Apex Court in Koyappathodi M. Ayisha Umma Vs. State of Kerala, AIR 1991 SC 2027 in support of the contention that when the appellants were not prevented from adducing the documents before the Reference Court, the appellants cannot be permitted to adduce additional evidence under Order 41, Rule 27 of CPC.
5.2 Reliance is also placed on the decision of the Apex Court in Special Land Acquisition Officer, Kheda Vs. Vasudev Chandrashankar, (1997) 11 SCC 218 and Viluben Jhalegar Contractor (D) by LRs Vs. State of Gujarat, AIR 2005 SC 2214 and particularly Para 19 in support of the contention that where the previous award in respect of adjacent land covered for the same notification had attained finality, the appellants are not entitled to get compensation at any higher rate.
Reliance is also placed on the decision of the Apex Court in (i) Bhim Singh Vs. State of Haryana, AIR 2003 SC 4382, (ii) Panna Lal Ghosh Vs. Land Acquisition Collector, (2004) 1 SCC 467, and (iii) Delhi Development Authority Vs. Bali Ram Sharma, AIR 2004 SC 4114, in support of the contention that only those sale instances should be relied upon which are for comparable lands in terms of location, area, category such as agricultural and non-agricultural etc. 5.3 The Reference Court rightly declined to determine the market value of the acquired lands on the basis of the sale instances relied upon by the claimants because the lands covered by the said sale instances are not comparable to the acquired lands. The sale instances were for the sale of very small parcels of non-agricultural lands admeasuring about 40 sq. mtrs. to 200 sq. mtrs. of land which were closer to the railway station, but the acquired lands are huge parcels of land admeasuring about 10961 sq. mtrs. in the aggregate and the acquired lands were agricultural lands on the date of issuance of Section 4 notification.
5.4 The Land Acquisition Officer had referred to the sale instances and after taking into consideration all the relevant factors had determined the market value of the acquired lands at the rate of Rs.15/- per sq. mtr., Rs.12.50 per sq. mtr. and Rs.1/- per sq. mtr. in respect of the concerned lands and therefore, there is no justification for interfering with the award of the Reference Court which has merely confirmed the award of the Land Acquisition Officer.
6. It is also vehemently submitted by the learned counsel for the respondents that the Reference Court erred in awarding additional solatium at the rate of 15%, over and above the solatium at the rate of 15% awarded by the Land Acquisition Officer. It is submitted that since the notifications under Sections 4 and 6 of the Act were issued in 1972 and 1975 respectively and the award of the Land Acquisition Officer under Section 11(1) of the Act was declared on 12.9.1978, the additional solatium could not have been awarded by the Reference Court.
It is, therefore, submitted that the appeal deserves to be dismissed and the Cross Objections deserve to be allowed.
6.1 In support of the aforesaid contention, reliance is placed on the various decisions of the Apex Court in
(i) K. Kamalajammanniavaru (Dead) by LRs Vs. Special Land Acquisition Officer, (1985) 1 SCC 582,
(ii) Union of India Vs. Raghubir Singh (Dead) by LRs, (1989) 2 SCC 754 and particularly Para 30, and
(iii) K.S. Paripoornan Vs. State of Kerala, (1994) 5 SCC 593.
In support of the contention that the solatium at the higher rate of 30% could be awarded only if the award of the Collector or award of the Reference Court is made between 30.4.1982 and 24.9.1984, it is submitted that since the award was made by the Collector prior to 30.4.1982 and the award of the Reference Court was made after 24.9.1984, the appellants are not entitled to get compensation at the rate of 30%.
7. Having heard the learned counsel for the parties, we first take up the submission made on behalf of the respondents that determination of market value and the quantum of compensation for the other lands acquired under the same notifications under Sections 4 and 6 of the Act became final with the judgment and awards dated 31.3.1984 (Exh.322) rendered by the Reference Court in Land Reference Case Nos. 3, 6 and 7 of 1979 and therefore, the Reference Court was justified in dismissing the claim of the appellants for enhancement of compensation amount. It is submitted that the compensation under Section 23(1) of the Act is to be assessed by determining the market value of the acquired lands as on the date of last publication of Section 4 notification (hereinafter referred to as the relevant date ). It is submitted that since the relevant date in the instant case was 29.6.1972 and it was also the relevant date in Land Reference Case Nos. 3, 6 and 7 of 1979 and all the lands were not only covered by the same notification under Section 4 but are also adjoining lands, the award made by the Reference Court in the above three references (i.e. Land Reference Case Nos. 3, 6 and 7 of 1979) is to be treated as the most relevant piece of evidence and therefore, neither the Reference Court, nor this Court sitting in appeal under Section 54 of the Act may go beyond the determination of market value made in the aforesaid judgment dated 31.3.1984 at Exh.322.
Strong reliance is placed by Mr Saurin Mehta for respondent No.2 on the following decisions of the Apex Court :-
(i) Special Land Acquisition Officer, Kheda Vs. Vasudev Chandrashankar, (1997) 11 SCC 218,
(ii) Bhim Singh Vs. State of Haryana, AIR 2003 SC 4382,
(iii) Panna Lal Ghosh Vs. Land Acquisition Collector, (2004) 1 SCC 467,
(iv) Delhi Development Authority Vs. Bali Ram Sharma, AIR 2004 SC 4114.
8. Mr Joshi for the appellant claimants has submitted that merely because the claimants in Land Reference Case Nos. 3, 6 and 7 of 1979 did not challenge the judgment and award dated 31.3.1984 before this Court, the appellants cannot be deprived of their right of appeal. The Reference Court while rendering the judgment and award dated 31.3.1984 decided the said references on the basis of the evidence which was led before the Reference Court in those proceedings. The present appellants were not party to the said references and therefore, the judgment and awards dated 31.3.1984 can never be considered as binding on the appellants either under the principle of res judicata or any other principle. It is further submitted that the appellants had led independent evidence of their own in the present reference cases and therefore, the Reference Court was bound to decide the matter on the basis of the evidence led before it in the present proceedings. Mr Joshi has, therefore, submitted that the Reference Court erred in considering itself as bound by the awards made in the previous references. It is submitted in the alternative that in any view of the matter, since the previous judgment and awards dated 31.3.1984 were never carried in appeal, this Court had no occasion to consider the question of adequacy of the rate of compensation and that the award made by the Reference Court can never be considered as binding on this Court.
9. Having heard the learned counsel for the parties on the aforesaid issue, we find considerable substance in the submission of Mr Joshi for the appellants that the record does not indicate as to for what reason the references made by the present appellants came to be separated from Land Reference Case Nos. 3, 6 and 7 of 1979 but there is no dispute about the fact that the present references were made within the period of limitation stipulated under Section 18 of the Act and that the present appellants had led their own evidence in the present references. Hence, if any distinguishing features were pointed out in the present references, the Reference Court would be bound to decide the same in accordance with law. However, this did not detain us any longer because whatever may be the fetters on the powers of the Reference Court, the decision rendered by the Reference Court in the previous three references cannot take away the powers of this Court for deciding the question of adequacy of the rate of compensation determined by the Land Acquisition Officer. This Court would certainly not be bound by the decision of the Reference Court in proceedings to which the present appellants were not parties. Of course the reasons which appealed to the Reference Court while rendering the judgment and awards on 31.3.1984 can certainly be looked into as the lands covered by those references were adjoining to the lands covered by the present appeal but the judgment and awards dated 31.3.1984 cannot preclude consideration of the appellants' case on merits.
10. We may now deal with the decisions relied upon by the learned counsel for respondent No.2 on the above contention.
11. Special Land Acquisition Officer, Kheda Vs. Vasudev Chandrashankar, (1997) 11 SCC 218 was a case in which the notification under Section 4 of the Act was published on 14.8.1986, the land acquisition officer offered compensation at the rate of Rs.250/- per are and the Reference Court enhanced the rate to Rs.2,500/- per are which was affirmed by this Court in appeal and the matter was carried before the Apex Court.
The Apex Court observed that in another award of the Reference Court relating to the same village, the land was acquired by notification dated 3.5.1979 and the Reference Court awarded compensation at the rate of Rs.2,100/- per are. The land acquisition officer did not carry the matter in appeal and thus, the award became final. The lands in question are also situate in the same village but on different survey numbers and some of the claimants were the claimants in the earlier acquisition as well and therefore, due to the time lag of 8 years, the Reference Court awarded the compensation at the rate of Rs.2,500/- per are.
Thus, the land acquisition officer was party to both the references and therefore, having acquiesced into the award of the Reference Court determining compensation at the rate of Rs.2,100/- per are for acquisition of the lands in the same village in 1979, it was not open to him not to accept the above rate as the basis for determining compensation for lands in the same village acquired in 1986.
It was in the above context, that the Apex Court observed that it is now settled legal position that the award of the Reference Court relating to the same village of the similar land possessed of same quantity of land and potential offers a comparable base for determination of the compensation. The case before the Apex Court did not involve a controversy which is sought to be raised in the present appeal whether the claimants who were not party to the previous award of the Reference Court which was never challenged in appeal, could be prepared from arguing before the higher court against inadequacy of compensation determined by the land acquisition officer merely on the ground that both the lands were covered by the same notification under Section 4 of the Act.
12. Reliance is also placed by the learned counsel for respondent No.2 on the decision in Bhim Singh Vs. State of Haryana, AIR 2003 SC 4382, in support of the contention that where the compensation for the lands in the same village was determined in previous judgments, the Reference Court or the High Court cannot take sale instances into account while fixing the compensation in the subsequent case. It is submitted that the best method would be to look at the earlier judgments and awards and not to the sale instances.
In the above case, the State of Haryana had acquired large areas for development of Gurgaon since 1983. The acquisition in question in the appeal before the Apex Court arose out of Section 4 notification issued on 20.4.1990. Since the claimants were dissatisfied with the amounts awarded by the Land Acquisition Officer, in all 152 references were filed wherein common evidence was led and common questions of law were argued. The Reference Court determined compensation at the rate of Rs.265/- per sq. yard. The State of Haryana challenged the awards of the Reference Court on the ground that the compensation was excessive. The claimants prayed for further enhancement. The High Court noted that the Reference Court had relied upon earlier judgments in respect of earlier acquisitions for the same purpose and made appropriate adjustments after considering the previous acquisition of the year 1987, whereas the present acquisition related to the year 1990. Hence, the compensation determined by the High Court in which previous awards at the rate of Rs.212/- per sq. yard was raised to Rs.265/- per sq. yard. The High Court also noted that the said rate was also approved by the Apex Court and therefore, the High Court adopted the said rate with suitable increase in view of passage of time rather than relying upon the sale instances. The above view of the High Court was challenged before the Apex Court by contending that the Apex Court should look into the sale instances which would show that the price of the land would come over to Rs.500/- per sq. yard. Dealing with the above submission, the Apex Court observed that in many of the sale instances the price is inclusive of price of the structures standing on the land. Even otherwise, when compensation has already been fixed by the High Court in earlier proceedings and when in one such proceeding this Court has already approved the rate fixed then in our view the best method would be to look at the earlier judgments and awards.
Therefore, the High Court cannot be faulted for having fixed compensation on the basis of earlier judgments.
The facts in the instant case are not the same. The previous award dated 31.3.1984 for the other lands was never carried in appeal before this Court and therefore, this Court is not required to follow any earlier judgment which was rendered by the Reference Court which is subordinate to this Court. For the first time, this Court is called upon to determine market value of the lands acquired by Section 4 notification dated 29.6.1972 and therefore, the above judgment will have no applicability.
13. Reliance is also placed on the decision of the Apex Court in Panna Lal Ghosh Vs. Land Acquisition Collector, (2004) 1 SCC 467 (Para 5) in support of the contention that the most reliable way to determine the market value of a piece of land acquired under the Act is to rely on the sale instances of the portion of the same land as has been acquired or adjacent lands made shortly before or after the Section 4 notification. It is submitted that the principle would apply with greater force when the award is made by the Reference Court for adjacent lands covered by the same Section 4 notification. In the said case, reliance was placed by the appellant claimants on an award in another acquisition proceedings relating to the land which was 150 ft. away from the lands in question and the Reference Court had awarded compensation of Rs.1,00,000/- per acre. The High Court chose not to rely on the said documents as no evidence was led to show that both lands were similar in nature having potential similarity. The Apex Court also found that the document which the appellants was relying on related to the land which was 3 ft. higher than the acquired land and that the two lands were not proved to be comparable in nature and potentiality. The Apex Court, therefore, confirmed the judgment of the High Court which disallowed the appellants' claim for enhancement of the compensation.
We do not see how this judgment is relevant for the purpose of deciding the question whether this Court can examine the matter without being hampered by the judgment of the Reference Court rendered on 31.3.1984.
14. Mr Mehta for the acquiring body also relied on the decision of the Apex Court in Delhi Development Authority Vs. Bali Ram Sharma, AIR 2004 SC 4114, wherein notification under Section 4 of the Act was issued for acquiring vast lands of three villages for planned development of Delhi. The market value of one piece of land covered by the notification was fixed by the Apex Court. The land which was subject matter of the appeal before the Apex Court was also covered under the same notification and was also found to be comparable. It was in these facts that the Apex Court held that the market value of the lands in question cannot be more than what was earlier fixed by the Apex Court.
Obviously when the market value of one comparable piece of land under the same Section 4 notification is determined by the Apex Court, the market value of another comparable piece of land covered by the same notification cannot be higher. However, as has been pointed out repeatedly hereinabove, this Court had no occasion to consider the question of determining the market value for any of the lands covered by Section 4 notification in question and therefore, this Court would certainly go into the question of adequacy of the rate of compensation for the appellants' lands. It of course goes without saying that if any enhancement of compensation is granted in this appeal now, the claimants in Land Reference Case Nos. 3, 6 and 7 of 1979 decided on 31.3.1984 would obviously not be entitled to claim any such enhancement because the awards in their case had become final in the year 1984. But the converse would not be true that the market value determined by the Reference Court in the case of other claimants would be binding on this Court while hearing the appeal under Section 54 of the Act.
15. In view of the above discussion, we see no merit in the preliminary objection raised by Mr Saurin Mehta for respondent No.2 Gujarat Housing Board that the appellants herein are not entitled to claim any amount of compensation higher than the rate at which compensation was paid by the Reference Court to the owners of the other lands which were covered by the same Section 4 notification.
16. Coming to the merits of this appeal, we find it strange that the Reference Court did not accept the relevance of the sale instances relied upon by the present appellants on the ground that the purchasers of the other lands had not seen the lands under acquisition in the present case in the same town and therefore, their opinion about two parcels of land being comparable cannot be accepted. It is true that such opinion of the purchasers of the other lands cannot be the determining factor but that would not mean that the Reference Court should refuse to consider the location of the lands covered by those sale instances and the lands under acquisition which are undisputedly in the same town. The map of Bilimora town was before the Reference Court and the oral evidence of the appellants, particularly, Fakirchand Zaverchand at Exh.167 clearly highlighted the fact that the lands in question were surrounded by the housing co-operative societies. This statement made on oath was not challenged in the cross-examination. Appellant No.1 had also stated in his deposition that the acquired lands are situate in Goharbaug area of Bilimora within the municipal limits of Bilimora and are on the north of the Bilimora Chikhli Vansada Highway, popularly known as the Chikhli road. The acquired land is only 500 ft. (i.e. less than 50 mtrs.) from the said State Highway and that there is an access from the acquired lands to the State Highway which is being used by the pedestrians as well as vehicles for the last about 30 years. The case of the appellants was in fact accepted even by the Land Acquisition Officer as in the following terms in the award dated 12.9.1978 of the Land Acquisition Officer :-
As regards the development in the vicinity of the land under acquisition, it could be said that as the lands are included within the Municipal Limits of Bilimora the development in the area is progressing gradually, few housing societies have come up in the surroundings while on Chikhli road there is some commercial development and few industries have also come up in the area. However, considerable area of the land is surroundings of the lands under acquisition is still vacant. But the area towards Railway station on west and in the vicinity of S.T.Depot has already developed with housing societies, commercial activities, etc.
For Bilimora a development plan has been prepared under the provisions of the Bombay Town Planning Act, 1954 and this plan is also sanctioned by Government and has also come into force under the Act. According to the zoning proposals of the sanctioned development plan, the lands under acquisition are included in the residential zone. Also a 40' wide North South road taking off from Chikhli road and running towards the eastern side of the block of land under acquisitions in proposed in the development plan. Another 40' wide east-west road is proposed towards the northern boundary of the block of the land under acquisition in the development plan. The northern portion of the block of land under acquisition out of city survey No.3253P, 3254P and 3255P of Bilimora under acquisition is reserved for school, play ground and municipal housing in the sanctioned development plan. Therefore, if the lands under acquisition are to be utilized for the purpose for which they are required in the present case, suitable variation shall have to be made in the sanctioned development plan of Bilimora.
The lands under acquisitions are situated within the Munitipal Limits of Bilimora in the vicinity of housing societies, commercial developments, industries, etc.
17. The above findings in the award of the Land Acquisition Officer more than substantiate the appellants' case that the lands are included within the municipal limits of Bilimora and that the lands are included in the residential zone of the development plan for Bilimora town prepared under the Bombay Town Planning Act, 1954. The fact that the housing societies have come up in the surrounding area and there is some commercial development and a few industries have also come up shows that the appellants' lands certainly had high market value and the land acquisition officer as well as the Reference Court erred in not considering the appropriate market value of the acquired lands merely on the ground that they were agricultural lands and were not converted into non-agricultural lands. The land acquisition officer also erred in discounting the market value of the acquired lands on the ground that considerable areas of lands surrounding the lands under acquisition are still vacant. The very fact that the Gujarat Housing Board selected the acquired lands which are surrounded by Housing Societies (as is also clear from the map placed before us), and that the Housing Board acquired the lands for constructing the houses not for the low income groups but for the people in the higher income group of Rs.7,000/- to Rs.18,000/- (in the year 1972) are sufficient to show high potential market value of the acquired lands on the date of publication of the notification under Section 4. The Housing Board had, thus, selected the acquired lands for construction of the houses for the income groups which were not low income groups.
18. In the aforesaid background, we are required to consider the sale instances which were relied upon by the appellants before the Reference Court and also the sale instances which are produced before us along with Civil Application No.9384 of 2007 for additional evidence.
19. The sale deed dated 11.5.1971 was for the open land admeasuring 765 sq. ft. bearing revenue survey No.454/2 which was sold for Rs.5,500/-, that is, at the rate of Rs.7.10 per sq. ft. i.e. about Rs.80/- per sq. mtr. The above sale deed was produced at Exh.353 along with the deposition of witness Mohanbhai Kuberbhai Patel at Exh.351. Similarly by sale deed at Exh.357 dated 10.2.1972, land admeasuring 1469 sq. ft. in revenue survey No.445/A-2 paiki was sold for consideration of Rs.12,000/-, that is, at the rate of Rs.8.70 per sq. ft. i.e. about Rs.90 per sq. mtr. The aforesaid sale instances of 11.5.1971 and 10.2.1972 were certainly relevant as the date of last publication of Section 4 notification in the instant case was 29.6.1972. As far as the location of the above lands is concerned, considering the fact that the acquired land bears revenue survey Nos. 457, 458 and 459 and the above sale instances are for the lands bearing revenue survey Nos. 454/2 and 455/2, they are quite nearby. We, therefore, find considerable substance in the submission made by the learned counsel for the appellants that the Reference Court grossly erred in not accepting the above sale instances as relevant both from the point of view of proximity of time and proximity of distance.
20. Mr Mehta for the Gujarat Housing Board, however, vehemently submitted that the aforesaid parcels of land were small pieces of non-agricultural lands and therefore, the market value of the acquired lands cannot be considered as Rs.80/- or Rs.90/- per sq. mtr. at which rate the above small parcels of land were sold.
21. It is true that the acquired lands were not converted into non-agricultural lands but the lands were already included in the residential zone of the development plan for the Bilimiora Municipality area under the Town Planning Act and the acquired lands were already surrounded by housing colonies and other commercial developments even before issuance of Section 4 notification. Hence, we would proceed on the basis of the principle enunciated by the Apex Court in several decisions that if the sale instances are in respect of smaller parcels of developed non-agricultural lands and the acquired lands are large tracts of vacant lands, appropriate deduction would have to be made.
22. In this connection, we may refer to the decision of the Apex Court in Viluben Jhalejar Contractor (D) by LRs. Vs. State of Gujarat, AIR 2005 SC 2214, wherein the Apex Court set out the positive factors as well as the negative factors to be taken into account for determining the compensation and observed as under :-
19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered.
20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under :
Positive factors Negative factors
(i) smallness of size
(i) largeness of area
(ii) proximity to a road
(ii) situation in the interior at a distance from the road
(iii) frontage on a road
(iii) narrow strip of land with very small frontage compared to depth
(iv) nearness to developed area
(iv) lower level requiring the depressed portion to be filled up
(v) regular shape
(v) remoteness from developed locality
(vi) level vis-a-vis land under acquisition
(vi) some special disadvantageous factors which would deter a purchaser
(vii) special value for an owner of an adjoining property to whom it may have some very special advantage.
21. Whereas a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price.
23. In Atma Singh (Dead) through LRs Vs. State of Haryana, (2008) 2 SCC 568, the Apex Court has also referred to several decisions on the question of deductions to be made on account of the fact that sale instances relied upon for ascertaining the market value related to sale of small pieces of land.
While noticing various decisions laying down that the market value may be reduced by 33%, the Apex Court referred to the decision in Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, (1988) 3 SCC 751 indicating that the deduction can be made at an appropriate rate ranging approximately 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. The Apex Court also referred to three other cases decided between 1995 and 2004 wherein the land was acquired for planned development of Delhi or for housing boards and deduction of 33% was applied. The Apex Court then enunciated the following principles in Para 14 of the judgment :-
14. The reasons given for the principle that price fetched for small plots cannot form safe basis for valuation of large tracts of land, according to cases referred to above, are that substantial area is used for development of sites like laying out roads, drains, sewers, water and electricity lines and other civic amenities. Expenses are also incurred in providing these basic amenities. That apart it takes considerable period in carving out the roads making sewers and drains and waiting for the purchasers. Meanwhile the invested money is blocked up and the return on the investment flows after a considerable period of time. In order to make up for the area of land which is used in providing civic amenities and the waiting period during which the capital of the entrepreneur gets locked up a deduction from 20% onward, depending upon the facts of each case, is made.
In Para 15 of the judgment, the Apex Court further held that the purpose and the body for which the lands are acquired is also relevant: whether the acquisition is for setting up a factory or for a public body like the Housing Board. A housing board does not run on business lines. Once plots are carved out after acquisition of land and are sold to public, there is no scope for earning any money in future. An industry established on acquired land, if run efficiently, earns money or makes profit every year. The return from the land acquired for the purpose of housing colony, or offices, or institution cannot even remotely be compared with the land which has been acquired for the purpose of setting up a factory or industry.
24. Having seen the above decisions of the Apex Court, we find that when the sale instances which are relied upon for determining the market value of the acquired lands are for comparable lands but the acquired lands are not developed as compared to the lands covered by the sale instances, appropriate deduction is to be made. In the facts and circumstances of the case, considering the fact that the lands in question were within the municipal limits and surrounded by housing colonies but not yet shown to have been converted into non-agricultural lands and are large in area being 10961 sq. mtrs. as against smaller pieces of land covered by the sale instances and also north portion of the block of the land under acquisition was sloping and was low lying by 2 ft. when compared to south portion of the block, we are of the view that interests of justice would be served if 40% deduction is made and the market value of the acquired lands within the municipal limits is assessed at 60% of the market value of smaller non-agricultural lands which would work out to approximately Rs.48/- per sq. mtr. for city survey No.3285.
However, the Land Acquisition Officer determined slightly lesser market value for the land bearing city survey No.3255 (Rs.12.50 per sq. mtr.) on the ground that the said land had narrow width as compared to the land bearing city survey No.3285 (Rs.15/- per sq. mtr.). Hence, we determine the market value of the land bearing survey No.3255 at Rs.40/- per sq. mtr.
25. We may note at this stage that for the land bearing city survey No.3286, the Land Acquisition Officer awarded compensation at the rate of only Rs.1/- per sq. mtr. on the ground that the said land is in the form of long and narrow strip of land with frontage on south on kachcha road.
If the said lands were to be treated as an independent separate parcel of land, the reasoning indicated by the land acquisition officer might be considered as valid, but it cannot be overlooked that survey Nos. 3286, 3255 and 3285 are parts of the same block of land and belonged to the common owners/ members of the same family and therefore, the value of survey No.3286 cannot be reduced to the extent of 1/15th of the market value of city survey No.3285. Considering the fact that the claimants themselves had claimed compensation for land bearing survey No.3286 at about one third the rate of compensation for land bearing survey No.3255, we determine the market value of the land bearing city survey No.3285 admeasuring 788 sq. mtrs. falling under the share of the appellants at Rs.15/- per sq. mtr.
26. At this stage, we may also note the submission of Mr Mehta for the acquiring body that the Land Acquisition Officer had also considered the sale instances reflecting lower market value in respect of the sale instances during the period between 7.6.1969 and 30.11.1971. We are, however, not inclined to consider the said submission because no oral or documentary evidence was led by the Land Acquisition Officer and reliance was only placed on the award dated 12.9.1978 of the Land Acquisition Officer. We also find from the map that while the acquired lands of the appellants had access to the road on the north and Kachcha road on the south, the lands covered by the sale instances relied upon by the Land Acquisition Officer in the award did not have any such direct access to a public road.
27. In view of the above discussion, the market value of the appellants' lands acquired under Section 4 notification published on 29.6.1972 and Section 6 notification published on 24.4.1975 is determined as under :-
Survey No. Area of the appellants' lands (in sq. mtr.) Rate claimed by the appellants (per sq. mtr.) Rate awarded by the Land Acquisition Officer Rate determined by this Court
(a)
(b)
(c)
(d)
(e) 3255 8416 Rs.161.40 Rs.12.50 Rs.40.00 3286 778 Rs.53.80 Rs.
1.00 Rs.15.00
28. As far as the appellants' claim of additional increase under Section 23(1A) is concerned, this claim cannot be granted because the Collector's award under Section 11(1) was made on 12.9.1978 i.e. long prior to 30.4.1982 and therefore, in view of the provisions of Section 30(1) of the Amending Act 68 of 1984, the appellants are not entitled to get any additional increase under sub-section (1A) of Section 23 inserted by the above Amending Act which came into force on 24.9.1984. It has also been so held by the Apex Court in Karnal Improvement Trust Vs. Sumitra Devi (Smt.) (Dead) by LRs, (2008) 12 SCC 423.
29. That takes us to the question of additional solatium under sub-section (2) of Section 23. Mr Mehta for the acquiring body Gujarat Housing Board submitted that since neither the award of the Collector nor the award of the Reference Court was made between 30.4.1982 and 24.9.1984, the appellants are not entitled to get any additional solatium by virtue of the amended provisions of sub-section (2) of Section 23. Reliance is placed on the decisions in (i) Union of India Vs. Raghubir Singh (Dead) by LRs, (1989) 2 SCC 754 (Paras 30 to 34), (ii) K.
Kamalajammanniavaru (Dead) by LRs Vs. Special Land Acquisition Officer, (1985) 1 SCC 582, and (iii) K.S.
Paripoornan Vs. State of Kerala, (1994) 5 SCC 593.
30. The submission, however, cannot be accepted. In several decisions, the Apex Court has considered the distinction between sub-section (1) and (2) of Section 30 of the Amending Act 68 of 1984 and has held that the solatium at the rate of 30% of the compensation amount under sub-section (2) of Section 23 read with sub-section (2) of Section 30 of the Amending Act is payable even in cases where the award of the Collector was made prior to 30.4.1982 and the award of the Reference Court is made after 24.9.1984.
The decision in Panna Lal Ghosh Vs. Land Acquisition Collector, (2004) 1 SCC 467 clinches the issue in favour of the appellants. In the said case, the award of the Collector was made in October 1974. The reference under Section 18 of the Act was pending before the learned Assistant Judge during the period between 30.4.1982 and 29.9.1984. The Reference Court made the award in the year 1985.
Following the decisions in Union of India Vs. Filip Tiago De Gama of Vedem Vasco De Gama, AIR 1990 SC 981 and in K.S. Paripoornan Vs. State of Kerala, AIR 1995 SC 1012, the Apex Court held that the enhanced solatium would apply even to a case pending before the Reference Court at the time when the Amending Act came into force. The Apex Court also held that the provision of solatium is mandatory and cannot be done away with.
31. In view of the aforesaid judgment of the Apex Court, the contention of the acquiring body Gujarat Housing Board must be rejected and therefore, the Cross Objections deserve to be dismissed.
32. Coming to the question of interest, in Pannalal Ghosh (supra), the Apex Court held that in cases where the reference under Section 18 was pending before the Reference Court as on the date of coming into force of the Amending Act (24.9.1984) the solatium is to be paid at the rate of 30% under Section 23(2) of the Act and the interest at the rate of 9% is also payable under Section 28 of the Act.
33. In the result, this appeal arising from Land Reference Case No. 4 of 1979 is partly allowed. The respondents shall pay the appellants, within three months from the date of receipt of a certified copy of this judgment, compensation for acquisition of the land bearing survey No.3255 admeasuring 8416 sq. mtrs. at the rate of Rs.40/- per sq. mtr. and compensation for acquisition of the land bearing survey No.3286 admeasuring 778 sq. mtrs. at the rate of Rs.15/- per sq. mtr. with 30% solatium under sub-section (2) of Section 23 as amended by Amending Act 68 of 1984.
The respondents shall also pay the appellants interest on the additional amounts of compensation and solatium awarded under this judgment for the following periods :-
(i) For the period from 27.9.1978 upto 23.9.1984 (Since possession was taken over on 26.9.1978) 6% per annum
(ii) From 24.9.1984 till the date of payment 9% per annum (as per the judgment of the Apex Court in Panna Lal Ghosh (supra) It is clarified that the appellants are not entitled to any additional amount under sub-section (1A) of Section 23 of the Land Acquisition Act, 1894.
It is also clarified that whatever amounts the appellants have been paid pursuant to the award of the Land Acquisition Officer and also the award of the Reference Court shall be adjusted against the amounts payable under this judgment.
35. At this stage, Mr Mehta for the Gujarat Housing Board prays for stay of operation of the judgment for a period of two months in order to have further recourse in accordance with law.
Mr Joshi for the appellants opposes the request.
Since the respondents are granted three months time to comply with the directions given in this judgment, it is not necessary to stay the operation of this judgment.
(MOHIT S. SHAH, J.) (K.M.
THAKER, J.) mrpandya Top