1. Though served none is present for respondent No.2. Learned AGP Mr. Banaji is present for respondent No.1.
2. Present Appeal has been filed by the appellant – Oil & Natural Gas Corporation Ltd. (ONGC) – original opponent No.2 being aggrieved with the impugned judgment and award rendered in Land Acquisition Reference No.129 of 2001 by the Reference Court (2nd Additional Senior Civil Judge, Kheda at Nadiad) dated 4.12.2007 on the grounds taken in the memo of the Appeal.
3. It is contended in the memo that the Court below has failed to appreciate material evidence on record. It is contended that the Court below has erred in observing that the claimants are entitled to get increase upon price upto 12% per annum from the date of acquisition or till the date of award. It is also contended that the Hon'ble Apex Court has held that the increase of 10% per year has not been granted that too in Rural areas. Therefore, it is contended that the impugned judgment and award is erroneous and present Appeal may be allowed.
4. Learned senior advocate Mr. Marshall for the appellant has referred to the impugned judgment and award and pointedly referred the observation made in para 15.A of the judgment and submitted that as observed by the Reference Court, the judgment given in L.R. Case No.131 of 2004 was exorbitant awarding Rs.108/ per Sq. Mtr. He submitted that there is no discussion of the nature of the land. Learned senior counsel Mr. Marshall also submitted that the comparison of value of the land in adjoining village is without any justification. He submitted that the Court below has proceeded on that basis for making assessment of the market value of the land and has also awarded the increase upon the price at the rate of 12% p.a. which is not legal. Learned senior counsel Mr. Marshall has also submitted that if the sale deeds of the land of the same village are produced then there is no need for other similar land acquired in nearby neighbouring villages. There are sale instances of the land. In the same village, reliance on other sale instances of other neighbouring village would not be justified. Learned senior counsel Mr. Marshall also submitted that if the sale instances of the same village are available, it would render a good evidence and it would not require any guess work. Learned senior counsel Mr. Marshall submitted that the Reference Court has referred the judgment of the High Court in First Appeal No.141 of 1999, where the judgment of the Reference Court has been confirmed. However, he submitted that the village Mahij is 5 to 6 Km. interior from National Highway and therefore, it cannot be compared with the land of village Bareja. He submitted that the Reference Court, after discussing, has awarded Rs.40/ per Sq. Mtr. but thereafter, has added 10% increase which is erroneous. Learned senior counsel Mr. Marshall submitted that both the lands cannot be compared as they are not comparable at all. He referred the judgment of Division Bench and submitted that the similar issue has been considered with regard to the situation of land near highway and away from highway and it was with regard to the acquisition of land of village Bareja which was near Highway and the land was acquired for AhmedabadBombay National Highway. He, therefore, submitted that after considering the situation of the land as well as nature of the land, the compensation has been awarded which is not applicable to the facts of the present case. Learned senior counsel Mr. Marshall submitted that there is no evidence with regard to any yield of any agricultural operation or potential development and therefore, 10% increase which has been given mechanically is contrary to the observations made by the Hon'ble Apex Court in judgment reported in the case of General Manager, Oil and Natural Gas Corporation Limited Vs. Rameshbhai Jivanbhai Patel and Another reported in 2008(XIV) SCC 745.
5. Learned senior counsel Mr. Marshall submitted that the observation made by the Hon'ble Apex Court in the case of Hirabhai and Others Vs. Land Acquisition OfficerCum Assistant Commissioner reported in (2010) 10 Supreme Court Cases 492 and submitted that the Hon'ble Apex Court has made observation that though the land may be situated just to 2 or 3 Km. away but when no definite evidence regarding nature and/or quality of land, is available, it was not found to be comparable with the land acquired.
6. In view of the submission, it is required to be considered as to whether present appeal be entertained or not.
7. It transpires from the discussion of the impugned judgment and also the submissions made by the learned senior counsel, the main thrust of the arguments is with regard to the comparison of land in question of village Mahij with the land of village Bareja. Another facet of the argument of the addition of 10% per year referring to the judgment of the Hon'ble Apex Court reported in 2008(XIV) SCC 745. Therefore, the point for determination is whether there is any justification for adding 10% per year keeping in view of the observation made by the Hon'ble Apex Court reported in 2008(XIV) SCC 745; second, whether the comparison made for arriving at market value of the land in question of village Mahij with the land of village Bareja is justified. It is evident from the discussion made by the Reference Court in its judgment that the award made at the rate of Rs.108/ was exorbitant. Similarly, the judgment in Land Reference Case Nos.375 of 1994 to 400 of 1994 in respect of the land of village Bareja was challenged by way of First Appeal No.1431 of 1991 and this Court has confirmed the judgment of the Reference Court making an award of Rs.64/ per Sq. Mtr. It was submitted that in the impugned judgment of the Reference Court, there is also discussion about the date of Notification issued under Section 4 of the Act dated 22.4.1990. It was submitted that in case of acquisition of land in question of village Mahij, it was later on. Further, the Reference Court itself has made observation that in case of land of village Bareja, it has been acquired for the purpose of National Highway, is adjacent to AhmedabadBombay National Highway, whereas the land of village Mahij is interior to the Highway. Therefore, the Reference Court has fixed the compensation at Rs.40/ per Sq. Mtr. It may be noted that the village Mahij is in the interior part and away from the Highway, therefore, the Reference Court has rightly considered Rs.40/ per Sq. Mtr. for the land in question acquired for village Mahij instead of comparing it and putting at par with the land of village Bareja. Thus, the Reference Court has consciously sliced down the compensation from Rs.64/ to Rs.40/ for the land acquired in the present case of village Mahij. Both the lands are agricultural lands and when they are in near vicinity, comparison for the purpose of guidance could be made to the exact location or situation and the prospects for development etc., which has been considered by the Reference Court.
8. Another facet of the submissions with regard to 10% addition is required to be considered in light of the judgment of Hon'ble Apex Court reported in 2008(XIV) 745. The Hon'ble Apex Court in this judgment referring to this aspect made observation that :
“Primarily, the increase in land prices depends on four factors – situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semiurban areas, where the development is faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate, as compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year...........
Therefore, if the increase in market value in urban/semi urban is about 10 to 15% p.a., the corresponding increases in rural areas would at best be only around half of it, that is about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. “
9. It is further observed that :
”Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisition), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the reliedonsale transactions/acquisitions precedes the subject acquisition by only a few years, that is upto four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the ‘rate’ of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.”
10. The Hon'ble Apex Court has in this judgment further elaborated on the aspect and has observed that “therefore, if the percentage to be added with reference to previous acquisitions/sale transactions is 10% per annum, the percentage to be deducted to arrive at a market value with reference to future acquisitions/sale transactions should not be 10% per annum, but much more. The percentage of standard increase becomes unreliable. Courts should therefore avoid determination of market value with reference to subsequent/future transactions.”
11. It is, therefore, upon observation that the escalation should be considered in the manner considering the cumulative rate which has been discussed in para 19 of this judgment. It has observed that cumulative rate should applicable.
12. In these circumstances, the Court is of the opinion that submission made by the learned senior counsel Mr. Marshall that adding addition 10% for all the years is erroneous and contrary to the observation made in this Judgment. Therefore, instead of 10% cumulative effect of 7.5% could have been considered as the land in question is in interior part of the village and it was not a land abutting on the highway or land in township or cities. Therefore, as it was in interior part of the rural area, 7.5% increase would be taken per year on cumulative method. It would come to Rs.50/ per Sq. Mtr. Therefore, present appeal deserves to be partly allowed to the aforesaid extent. Accordingly, present appeal stands partly allowed.
13. The impugned judgment and award of the Reference Court awarding Rs.68/ per Sq. Mtr. in respect of the land in question of village Mahij Dist. Kheda is hereby quashed and set aside and is substituted at the rate of Rs.50/ per Sq. Mtr as stated above from the date of acquisition of the land. The respondent No.2 claimant is also entitled to other benefit like statutory benefits under the Act. Accordingly, present Appeal stands allowed partly to the aforesaid extent. Record and Proceedings is ordered to be sent back to the Reference Court forthwith for taking further steps in the matter.
(RAJESH H. SHUKLA, J.) ynvyas