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General Manager & 1 vs Thakore Ishwar Hiraji &Defendants

High Court Of Gujarat|26 September, 2013
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 3413 of 2012 With FIRST APPEAL NO. 3414 of 2012 TO FIRST APPEAL NO. 3415 of 2012 With FIRST APPEAL NO. 3416 of 2012 TO FIRST APPEAL NO. 3417 of 2012 With FIRST APPEAL NO. 2891 of 2012 TO FIRST APPEAL NO. 2893 of 2012 With FIRST APPEAL NO. 2431 of 2012 TO FIRST APPEAL NO. 2432 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================ ================================================================ GENERAL MANAGER & 1 Appellant(s) Versus THAKORE ISHWAR HIRAJI & 1 Defendant(s) ================================================================ Appearance:
MR RITURAJ M MEENA, ADVOCATE for the Appellant(s) No. 1 - 2 MRAJPATEL, ADVOCATE for the Defendant(s) No. 1 MR DHAWAN JAYSWAL, AGP for Respondent No.1 in FA Nos.2891 to 2893 of 2012 MR HARDIK SONI, AGP for Respondent No.1 in FA Nos.2431 to 2432 of 2012 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 26/09/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As in all appeals common questions arise for acquisition of lands of Village : Bhimasan they are being considered simultaneously.
2. The first group of appeals being First Appeal No.3413 to 3415 of 2012 have been preferred by the acquiring body against the judgment and award passed by the Reference Court in Land Acquisition Reference Case Nos.535 to 537 of 2009, whereby the Reference Court has considered the gross amount of compensation at Rs.224/­ per sq.mtr., and based on the same has ordered for additional amount of compensation at Rs.212/­ per sq.mtr., plus statutory benefits of increase in the market value under Section 23(1­A) and solatium under Section 23(2) and the interest under Section 28 of the Land Acquisition Act (hereinafter referred to as ‘the Act’).
3. The second group of matters First Appeal Nos.3416 to 3417 of 2012 have been preferred against the judgment and award of the
whereby the Reference Court has considered amount of gross compensation at Rs.261.50 ps and consequently has ordered additional amount of compensation at Rs.232/­ per sq.mtr., plus statutory benefits of increase in the market value under Section 23(1­A), solatium under Section 23(2) and the interest under Section 28 of the Act.
4. We may also record that First Appeal Nos.2891 to 2893 of 2012 have been preferred by the original claimants against the very judgment of the Reference Court in Land Acquisition Reference Case Nos.535 to 537 of 2009 for enhancement of the compensation. Whereas the First Appeal Nos.2431 to 2432 of 2012 have been preferred by the original claimants against the judgment of the Reference Court in Land Acquisition Reference Case Nos.918 to 919 of 2009 for enhancement of the compensation.
5. We may record that for sake of convenience the parties shall be referred to as the acquiring body and the original claimants as the case may be.
6. The short facts of the case are that in first group of matters the lands at Village : Bhimasan were to be acquired under the Land Acquisition Act (hereinafter referred to as the ‘Act’ for short). The notification under Section 4 of the Act was published on 12.5.2000. The notification under Section 6 of the Act was published on 1.3.2001. Thereafter, the award was passed on 9.1.2001 under Section 9, whereby the Land Acquisition Officer awarded compensation at Rs.12/­ per sq.mtr. As the land owner / ori.claimants were not satisfied with the compensation they raised the dispute under Section 18 of the Act and demanded compensation at Rs.350/­ per sq.mtr. Such disputes were referred to the Reference Court for adjudication. The Reference Court at the conclusion of the reference assessed the market value at Rs.224/­ per sq.mtr., and accordingly passed the above referred judgment and the award. Under the circumstances the acquiring body has preferred appeals for reduction of the amount of compensation, whereas the original claimants have preferred the appeals for enhancement of the compensation.
7. In the second group of matters the acquisition of the land is at the very village, but the difference is that the notification under Section 4 of the Act was published on 19.3.2003 and notification under Section 6 of the Act was published on 26.10.2003 and the award under Section 9 was published on 5.12.2003. The Land Acquisition Officer awarded compensation at Rs.29.50 per sq.mtr. In the present case also the original claimants raised the dispute under Section 18 of the Act and demanded compensation at Rs.350/­ per sq.mtr. Such disputes were referred to the Reference Court for adjudication and the Reference Court at the conclusion of the references passed the above referred judgment and the award, whereby it assessed the market value and gross compensation at Rs.261.50 ps. per sq.mtr. Under the circumstances, the acquiring body has preferred appeals for reduction of the amount for compensation, whereas the original claimants have preferred appeals for enhancement of the compensation.
8. We have heard Mr.Rituraj Meena, learned counsel appearing for the ONGC – acquiring body in all appeals and Mr.Jayesh Patel, learned counsel appearing for Mr.A.J.Patel for the original claimants in all the appeals and the concerned learned AGP appearing for the Special Land Acquisition Officer in the respective matters. We have also considered the other relevant records including the judgment of the Reference Court and of this Court for acquisition of the land at Village : Jethalaj which has been considered by the Reference Court.
9. As such, it appears from the perusal of the judgment and the award passed by the Reference Court that the Reference Court has mainly relied upon the compensation awarded for acquisition of the land at Village ; Jethalaj and based on the same the Reference Court has awarded compensation. In the second group thereafter the Reference Court has considered the appreciation since there was a time gap in the notification under Section 4 in the matter of Village : Jethalaj and the acquisition in the present case. As such, if the Reference Court has relied upon the decision of the Reference Court for acquisition of the land in which comparison can be made, such an approach on the part of the Reference Court cannot be said to be erroneous.
10. Under these circumstances, we find that the reliance placed by the Reference Court for awarding of compensation in respect of the acquisition of land at Village : Jethalaj was not erroneous.
11. However, the learned counsel appearing for the acquiring body raised the contention that there is difference between village site of Jethalaj and village site of Bhimasan, land of which is under acquisition in the present case. It was, therefore, submitted that the Reference Court could not validly apply the same rate as was fixed for acquisition of the land at Village : Jethalaj. He submitted that there was error committed by the Reference Court which this Court may consider in the present appeals.
12. Whereas on behalf of the original claimants it was submitted by the learned counsel Mr.Patel that the evidence has come on record that the Village : Jethalaj and Village : Bhimasan are joining to each other and, therefore, as such no deduction was called for. He has further submitted that the judgment of the Reference Court for awarding compensation in respect of the land at Village : Jethalaj were carried before this Court in the proceedings of First Appeal No.3936 of 2010 and allied matters and the learned Single Judge of this Court vide order dated 1.5.2012 in the appeal preferred by the original owner – original claimants enhanced the compensation to Rs.280/­ per sq.mtr., for acquisition of the land at Village : Jethalaj. He, therefore, submitted that in view of the decision of this Court in the First Appeal No.3936 of 2010 the compensation awarded by the Reference Court may be enhanced as claimed in the appeal preferred by the original claimants.
13. We may first consider the contention about the location of village site of Bhimasan with village site of Jethalaj. The learned Judge at para­11 of the judgment by referring to the examination­in­chief and the cross­ examination of the witness examined on behalf of the Special Land Acquisition at Ex.19 has recorded that as per the said witness in the cross­examination it is admitted that Village : Bhimasan and Village : Jethalaj are adjoining village. Therefore, the boundaries of both the villages can be said to be touching to each other. Mere distance in the location of the village site would not make much difference for making comparison of the value of the land, since in respect of the Village : Jethalaj also the lands acquired were agricultural land and they were not forming part of village site, but were forming part of the revenue limit of Village ; Jethalaj. In our view the location of village site between two villages would not be of much relevance but the relevant aspect to be considered is the location of two agricultural land in the revenue limits, if the boundaries of both the villages are touching to one another. Once it is found that the boundaries of revenue limit of Village : Jethalaj is touching to Village : Bhimasan, comparison can be made for the purpose of assessing the market value of the land.
14. We have considered the judgment of the Reference Court for acquisition of the land at Village : Jethalaj and we have also considered the decision of this Court in the First Appeal Nos.3936 to 3941 of 2010 which arise from the decision of the Reference Court for compensation in respect of the land located at Village : Jethalaj. It appears that this Court had taken into consideration the location of the Village at Jethalaj as that adjoining to the boundary of Ahmedabad Urban Development Authority. It was also considered by this Court that there were sale instance for purchase of the land at Rs.280/­ per sq.mtr., by Arvind Mill in respect of the land at Village : Jethalaj. The valuer report for valuation of the land at Village : Jethalaj was also produced and considered by the Court but this Court relied upon the sale instance of Rs.280/­ and Rs.306/­ per sq.mtr., than the valuer report. Accordingly in First Appeal No.3936 of 2010 this Court found that appropriate amount of compensation should be Rs.280/­ per sq.mtr., and Rs.306/­ per sq.mtr., for acquisition of land at Village : Jethalaj.
15. The location of the land at Village : Jethalaj if considered in comparison to the location of the Village : Bhimasan it appears that after the boundary of Ahmedabad Urban Development Authorities are over Village : Jethalaj and its land are located and, thereafter, the land of Village : Bhimasan are located. One may say that between the boundary of Village : Bhimasan and boundary of Ahmedabad Urban Development Authority Village : Jethalaj and its land are located. Since the location of Village : Bhimasan is later to Village : Jethalaj, we find that even if the basis of the comparison are made with the lands located at Village : Jethalaj, appropriate deduction of 10% deserves to be made for the land located at Village : Bhimasan. As this Court has taken the view that the appropriate compensation for the land located at Village : Jethalaj should be Rs.280/­ per sq.mtr., we find that the same can be considered as the basis and thereafter on account of location of the land at Village : Bhimasan next to the land at Village :
Jethalaj 10% deduction deserves to be made. Consequently such amount would come to Rs.252/­ per sq.mtr., (Rs.280­Rs.28).
16. In view of the aforesaid observations and discussion, we find that appropriate gross amount of compensation for the land in question should be Rs.252/­ per sq.mtr., and not Rs.224/­ as held by the Reference Court. Of course out of the said amount since Rs.12/­ per sq.mtr., is already awarded by the Special Land Acquisition the net amount of additional compensation would be Rs.240/­ per sq.mtr., in cases of First Appeal Nos.3413 to 3415 of2012 with First Appeal Nos.2891 to 2893 of 2012.
17. The other benefit awarded by the Reference Court are by way of statutory nature. So far as increase in the market value under Section 23(1­A) and solatium under Section 23(2) of the Act to which we are not inclined to interfere, save and except to the observation that on account of the increase in the principal amount the additional compensation at Rs.240/­ per sq.mtr., such amount of statutory benefit shall get proportionately enhanced.
18. In the second group of matter of First Appeal Nos.3416 to 2417 of 2012 so far as the value of the land at Rs.252/­ per sq.mtr., in the year 2000, the same reasoning would be applicable as observed earlier, but the only distinguishing feature is that the notification under Section 4 of the Act has been published in the present case on 19.3.2003 and, therefore, there is difference of about 03 years in the notification under Section 4 of the Act. Accordingly the appreciation at the rate of 10% per annum would be required to be considered and such amount would come to 30% i.e. Rs.75/­ more and if added with Rs.252/­ the total amount would come to Rs.327/­ per sq.mtr. Out of which the amount of Rs.29.50 ps. per sq.mtr., is already awarded is compensation, hence additional amount of compensation would come to Rs.297.50 ps. per sq.mtr., as against gross compensation awarded by the Reference Court at Rs.261.50 ps. per sq.mtr., and net additional amount of compensation at Rs.232/­ per sq.mtr. Under the circumstances, the judgment and award of the Reference Court in the Land Reference Case Nos.918 to 919 of 2009 would be required to be modified.
19. The other benefits for increase in the market value under Section 23(1­A), solatium under Section 23(2) are by way of statutory in nature to which we are not inclined to interfere save and except with the observations that on account of increase in the principal amount of compensation such amount shall proportionately get enhanced.
20. In both the group of First Appeals Reference Court has awarded interest under Section 28 of the Act from the date of notification under Section 4 or from the date of taking over possession, whichever is earlier. However, it appears from the statement made by Mr.Meena on behalf of the acquiring body as well as by Mr.Patel on behalf of the original claimants that prior to the present acquisition proceedings the possession of the land was with the ONGC on account of temporary acquisition and subsequently also the rental compensation was being paid. Mr.Patel, learned counsel appearing for the original claimants admitted that until issuance of notification under Section 4 of the Act, rental compensation has been paid. Under these circumstances so far as that part of the award passed by the Reference Court is concerned, we find that it would be appropriate to award interest under Section 28 of the Act from the date of notification under Section 4 of the Act and not from the date of taking over of the possession.
21. In view of the aforesaid observations and discussion and that the original claimants in the group of First Appeal Nos.3413 to 3415 of 2012 with First Appeal Nos.2819 to 2893 of 2012 would be entitled for additional compensation at Rs.240/­ with statutory benefit, increase in the market value under Section 23(1­A), solatium under Section 23(2) and the interest under Section 28 of the Act, but from the date of notification under Section 4 of the Act.
22. It is also held that original claimants in First Appeal Nos.3416 to 3417 of 2012 with First Appeal Nos.2431 to 2432 of 2012 would be entitled to the compensation at Rs.297.50 with statutory benefit of increase in the market value under Section 23(1­A) and solatium under Section 23(2) and the interest under Section 28 of the Act, but from the date of notification under Section 4 of the Act. Considering the facts and circumstances the additional amount of compensation as per the present judgment if not deposited shall be deposited within a period of 08 weeks from date of receipt of the order of this Court.
23. The Appeals of the acquiring body being First Appeal Nos.3413 to 3415 of 2012 with First Appeal Nos.3416 to 3417 of 2012 shall stand dismissed. The First Appeal Nos.2891 to 2893 of 2012 with First Appeal Nos.2431 to 2432 of 2012 shall stand allowed to the aforesaid extent. Considering the facts and circumstances no order as to costs.
(JAYANT PATEL, J.) KKS (Z.K.SAIYED, J.)
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Judges
  • Jayant Patel
  • Z K Saiyed
Advocates
  • Mr Rituraj M Meena