(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As both the appeals arise from the common judgement and decree passed by the lower Court, they are being considered simultaneously.
2. First Appeal No.1873 of 2004 is directed against the judgement and decree of the trial Court, whereby the trial Court has partly decreed the suit by directing the Corporation – respondent herein to pay the compensation at the market value of Rs.250/- per sq. ft., with the interest at 12% p.a., from the date of taking over of the possession till realization of the decretal amount and the appellant is seeking enhancement of the amount at par with the claim made before the lower Court of Rs.1,500/- per sq. ft., as the compensation with interest thereon.
3. First Appeal No.2821 of 2004 is preferred by the Corporation against the very judgement and decree of the lower Court for reduction of the amount of compensation than decreed by the lower Court.
4. Herein after for the sake of convenience, since there are Cross Appeals, the parties shall be referred to as per their status before the lower Court namely; the plaintiff or the defendant, as the case may be.
5. The short facts are that the plaintiff is the original owner of the suit land in question and the respondent wanted to widen the road in Vadodara City known as Old Padra Road. Therefore, initially proposal was made for acquisition of the land admeasuring 945.96 sq. mtrs., out of the total land available of the plaintiffs. Thereafter, as the Corporation had financial difficulties in paying the compensation, the proposal for acquisition was dropped. In the year 1992, in spite of the dropping of the proposal for acquisition of the land, the officers of the defendant Corporation started widening the road without following prior procedure in law for acquisition of the land, by dumping the material over the land of the plaintiffs. Therefore, the plaintiff had preferred Regular Civil Suit No.1277/1992 for the declaration and perpetual injunction, restraining the respondent Corporation from taking action. It appears that in the said suit, the interim injunction was also granted. In spite of the injunction granted by the Civil Court in the said suit, officers of the Corporation proceeded further and the road was developed in part and, therefore, the plaintiff filed an application for breach of injunction under Order 39 Rule 2A of CPC against the officers of the Corporation. In the said proceedings, the purshis dated 24.4.1997 was filed on behalf of the Corporation that the area, which has gone in road-line shall be jointly measured and the compensation shall be paid after fixing the amount with deliberation and at the earliest the compensation shall be paid to the plaintiff or in alternative, if the plaintiff is desirous to get more FSI, the same shall also be fixed. It appears that thereafter, the process was undertaken for assessment of the compensation, but it was not finalized. The plaintiff thereafter amended the suit and added prayers for paying the compensation at the rate of Rs.1,500/- per sq. ft. On account of the amendment in the plaint, the suit was re-numbered as Special Civil Suit No.185/1999. The written statement was filed by the defendant and thereafter the evidence was led before the Court and ultimately the lower Court passed the above referred judgement and decree for awarding of compensation at Rs.250/- per sq. ft., with the interest as observed herein above. Under these circumstances, both the appeals before this Court.
6. We have heard Mr.Asim Pandya, learned Counsel for the original plaintiff and Mr.Nilesh Pandya, learned Counsel for the defendant Corporation. We have considered the judgement and reasons recorded by the learned Judge. We have also considered the record and proceedings.
7. The evidence on record shows the following position:-
(a) Initial proposal for acquisition of the land for road widening was for the area of 945.96 sq. mtrs., equivalent to 10178 sq. ft. (by rounding of the figure);
(b) The process of acquisition was undertaken, but the Corporation thereafter, due to financial difficulties had dropped the proposal. Consequently, the land in question admeasuring 945.96 sq. mtrs., (hereinafter referred to as the 'suit land') remained with the plaintiff;
(c) No procedure for acquisition of the land in accordance with the Bombay Provisional Municipality Act or under the Land Acquisition Act was followed before taking away the suit land for the purpose of the road by the Corporation;
(d) The Corporation started widening the road and thereby action for deprivation of the possession of the suit land was taken in the year 1992;
(e) In spite of the injunction granted by the lower Court against the officers of the Corporation, the injunction was not obeyed and the officers of the Corporation proceeded to widen the road in breach of the injunction by dumping the material, etc.
(f) The purshis was filed on 24.4.1997 on behalf of the Corporation that they shall pay the compensation for the land going in road after the joint measurement.
(g) After the purshis, the Commissioner of the Municipal Corporation, as per the proposal dated 19.1.1998 (Exh. 123) moved to the Standing Committee for fixation of the price by the Deputy Town Planner for the area of the land admeasuring 945.96 sq. mtrs., and to pay the compensation as per the price fixed;
(h) The Standing Committee approved the proposal on 31.1.1998;
(i) The plaintiffs filed purshis (Exh. 62) on 8.5.1997 stating that the declaration made on behalf of the defendant by the Commissioner is not as per the understanding, but it was agreed that the market price of the land and the solatium as per law will also be paid;
(j) The Town Planning Department of the Corporation assessed the market value of the land as per the report (Exh. 124) and assessed the value at Rs.2,919/- per sq. mtrs., as per the report dated 16.1.1998, which would come approximately to Rs.271/- per sq. ft.;
(k) The Corporation has addressed a letter (Exh.
144), stating that after valuation of the land, if the consent is granted by plaintiff, appropriate action shall be taken;
(l) The joint measurement was undertaken on 10.6.1997 as per the sketch (Exh. 220) and the same shows that the area for road widening belonging to the plaintiff shown in the red colour admeasures 945.96 sq. mtrs.;
(m) The Corporation has not paid the market price assessed by its own Town Planning Department at Rs.2,919/- per sq. mtrs.
In view of the aforesaid position, we have now to consider the contentions raised by the learned Counsel appearing for both the sides.
8. The first contention raised by Mr.Nilesh Pandya, learned Counsel appearing for the Corporation is that the actual area as per the document (Exh. 220) occupied for the road is only 97.87 + 56.12 sq. mtrs., i.e. the area where there was tar spread over or the area covered by the tar road was only that much, total admeasuring 153.99 sq. mtrs., and it was not 945.96 sq. mtrs., and, therefore, it was submitted that until that aspect was finalized, the Court ought not to have passed the decree or in alternative, it was submitted that this Court may find that the compensation to be awarded would be only for the area of 153.99 sq. mtrs., and not 945.96 sq. mtrs.
9. In our view, the said contention is falsified by the record of the Corporation itself, which has been produced. Further the same is not Item No.3 for understanding the map, by foot-note it has been specifically mentioned that the area covered by the red colour in the map is to be acquired for the purpose of road-line. The internal composition of various parcels of different City Survey numbers are mentioned. Further in the red colour, the total measurement
56.12 sq. mtrs., would at the most show that the tar is over that area, but thereby, it cannot be said that the area of the road, of 945.96 sq. mtrs., is to curtailed to 153.99 sq. mtrs. In our view, the sketch (Exh. 220), is by way of joint measurement by the Surveyor, Shri P.B. Chauhan as mentioned in the map and the same shows that for the purpose of road widening or by way of road- line the area of various parcels of City Survey numbers belonging to plaintiff, included in the said portion of the road admeasures 945.96 sq.
mtrs. The contention, if further tested, would also be falsified by the record of the Corporation, inasmuch as, as taken note by us in the earlier paragraph, that the Commissioner of the Corporation had forwarded the proposal (Exh. 123) to the Standing Committee for payment of compensation of the area admeasuring 945.96 sq. mtrs. The aforesaid proposal is in response to the purshis and the declaration filed and made before the Court. The said proposal was accepted by the Standing Committee on 31.1.1998. Therefore, it cannot be heard from the Corporation to contend that the actual area is less than 945.96 sq. mtrs., and to be more specific 153.99 sq. mtrs. Further, thereafter the proposal has been made for assessment of the market value and the report of the Town Planning Department of the Corporation (Exh. 124) also shows the area as that of 945.96 sq. mtrs. As recorded earlier, the Corporation entered into correspondence calling upon the consent of the plaintiff for further action to pay the compensation of that particular area. Therefore, it appears to us that the contention is on a non-
existent premise and can also be said as misconceived by giving wrong interpretation to the document at Exh. 220. Under these circumstances, the contention deserves to be rejected, hence rejected.
10. The next aspect to be considered is the assessment of the market value of the land on the relevant date. It is true that the plaintiff is deprived of the possession of the land in the year 1992, but the agreement on the part of the defendant Corporation to pay the market price is in the year 1997 as per the purshis filed. It also appears that the Corporation by forwarding the proposal to the Standing Committee as well as by the report of the T.P. Department dated 16.1.1998 took it as if the market price to be assessed and paid was as of the year 1997. The valuation is also made of the suit land prevailing in the year 1997 by the Town Planning Department of the Corporation. In the written statement filed by the defendant Corporation to the amended plaint at paragraph 7, it has been stated that the Corporation is agreeable to pay the amount as per the rate fixed by the Deputy Town Planning at Rs.2,919/- per sq. mtrs. This shows that the valuation for compensation for the land in question was to be paid as prevailing in the year 1997 of the suit land. Even the parties had led the evidence for the prevailing valuation in the year 1997 of the suit land.
11. The examination of the aspect for assessment of the market price of the suit land in the year 1997 shows that the nearby land of the plaintiff the Town Planning and Valuation Department of the State Government vide report dated 15/17-7-1997 for the purpose of allotment of the land to the original owner whose land was acquired and allotted to Vaccine Institute has assessed the market value of the land bearing Survey No.249 and in the said report, it has been observed that the market value of the land allotted to the Vaccine Institute, could be said as Rs.3,200/- per sq. mtr., as against the Town Planning Department of the Corporation assessed the market value of Rs.4,250/- per sq. mtrs. Therefore, it shows that the Town Planning Department of the Corporation has assessed the market value at Rs.4,250/- of the land allotted to the Vaccine Institute, whereas the Town Planning and Valuation Department of the State Government assessed the value of the land at Rs.3,200/- per sq. mtrs. Between the aforesaid two valuations, we find it proper to give more weightage to the valuation made by the Town Planning and Valuation Department of the State Government which is higher body of experts at State level for the assessment of the market value of the land bearing Survey No.249 for the land allotted to Vaccine Institute. Hence, it can be said that the land bearing Survey No.249, allotted to the Vaccine Institute, was having market value of Rs.3,200/- per sq. mtrs. Apart from the aforesaid aspects the compilation of the very report of the Town Planning and Valuation Department of the State Government shows that after arriving at the figure of Rs.3,979/- of the land, 20% deduction is considered for the assessment of the market value, since the said land was located on the internal road and there was no appropriate entry/access from the main road. As against the same, the land of the plaintiffs is located on Old Padra Road, which is a main road and, therefore, it can be said as better located than the land allotted to Vaccine Institute, even if it had approach road to the main road. Had the land of Vaccine Institute had any approach road to the main road, the Valuation Department would not have reduced 20%, but there is additional benefit available to the suit land, inasmuch as the land is located on the main road itself. Therefore, after taking the base of Rs.3,200/-, we find that the suit land, as is located on the main road, will have 30% more value than the land allotted to Vaccine Institute for which the valuation is made by the Valuation Department of the State Government. Accordingly, Rs.960/- is required to be added to the aforesaid figure of Rs.3,200/- and consequently, the amount would come to Rs.4,160/- per sq. mtrs., as the market value after taking into consideration the valuation made by the State Government for Vaccine Institute.
12. The attempt was made by Mr.Asim Pandya, learned Counsel appearing for the plaintiffs to submit that as per the valuation made by the Government approved Valuer of the plaintiff, the market value was assessed at Rs.1,200/- per sq. ft., and if not Rs.1,200/-, at least, Rs.600/- per sq. ft. and consequently, it would be, in any case, Rs.6,456/- per sq. mtrs., and, therefore, he submitted that the reliance may not be placed upon the valuation made for the land allotted to Vaccine Institute. We are not inclined to accept the said contention for two reasons; one is that the Valuer, Mr.P.M. Mehta, who has given the valuation certificate at Exh.179 is not examined as witness, enabling the other side to cross- examine him; and second reason is that in his valuation report, he has initially assessed the value at Rs.1,200/- per sq. ft., and for the remaining land he has assessed the value at Rs.600/- per sq. ft. The remaining land was also to remain as on the road itself. Therefore, in view of the aforesaid ambiguity, we are not inclined to rely upon the valuation report of the Valuer produced on behalf of the plaintiffs. It is hardly required to be stated that the Court, between the valuation made by the registered Valuer and the valuation made by the Valuation Department of the State Government, would give more weightage to the valuation made by the Valuation Department of the State Government, unless strong and convincing circumstances are shown to the Court for position otherwise. Concerning to the other evidence produced on record, we find that any valuation or the transaction pertaining to the sale of the land of the nearby area or even of the adjacent area after the relevant date of 1997 i.e. the date on which the purshis was submitted, would not be of much importance, nor the reliance can be placed upon such documents unless a concluded transaction is entered into and willing buyer and purchaser are examined. Hence, we find that appropriate assessment of the market value of the land in question can be made at Rs.4,160/- per sq. mtrs., and accordingly, per sq. ft., it would come to Rs.386.61 and if rounded off, it would be Rs.387/- per sq. ft. of the suit land.
13. It was contended by Mr.Nilesh Pandya, learned Counsel appearing for the defendant Corporation that the plaintiff would not be entitled to any solatium at the market price, as may be fixed by the Court. In his submission, the understanding was to pay market price and, therefore, at the most, market price and not beyond the said amount. He submitted that the solatium was not agreed to be paid and the lower Court has also rightly not granted and, therefore, the said part of the judgement and decree of the lower Court may not be interfered with.
14. As such on the aspect of deprivation of the land, if considered as it is, there is deprivation of the land by the defendant without due process of law. If the matter is considered within the four corners of law, there may be room for additional amount also, but as the plaintiff has restricted the case by treating the action of taking over of the land as compulsory acquisition and thereby has demanded solatium only, we leave at that stage. Had the land been acquired under Land Acquisition Act, the Corporation could not have avoided the liability to pay solatium on the market price as may be fixed. Further, even under the Land Acquisition Act, when award is by consent, there would be calculation of solatium too. Solatium, as such, is towards compulsory deprivation of the property through lawful procedure. When the plaintiff was deprived of the possession and there was treatment at par with compulsory acquisition, we do not find any reason to deprive the plaintiff from his entitlement to get solatium. On the contrary, the entitlement of the solatium or an amount equivalent to solatium deserves to be granted, keeping in view the peculiar circumstances that the land was initially to be acquired and the proposal was sent but it was dropped at the later stage. Further, had the land been acquired under the Land Acquisition Act, there would be not only the liability to pay market price, but there would also be additional amount over the market price as per Section 23(1-A) of the Act at the rate of 12% per annum and solatium under Section 23(2) of the Land Acquisition Act. As against the same, the claim is made by the plaintiff at the rate of 30% for solatium or the amount claimed is at par with the amount available as solatium under Land Acquisition Act. The additional aspect is that under the Land Acquisition Act, there is deprivation of the possession after following procedure in accordance with law namely; from the date of Notification under Section 4 of the Act until the award is passed unless emergency clause is applied, whereas in the present case, apart from the aspect of no procedure in accordance with law was followed for taking possession of the land, the possession has been taken over in spite of the prohibitory injunction of the competent Court. Possibly, having realized the said aspect the Corporation agreed to pay the market price by way of compensation. Therefore, when the compensation is to be treated as for deprivation of the possession of the land, it would be both the market price and the amount equivalent to solatium for compulsory deprivation of the land. Therefore, we find that the plaintiff would be entitled to the amount equivalent to the amount of solatium. We are conscious of the fact that the acquisition is not under the Land Acquisition Act and solatium has been expressly provided only under the Land Acquisition Act, but we cannot ignore the aspect that if the State or instrumentality of the State is to deprive the ownership and property of any citizen by through the process of law, there would be liability to pay market price and the solatium. In the present case, the Instrumentality of the State like defendant Corporation, has deprived of the plaintiff without due process of law, the ownership and possession of the land, therefore, there is no reason not to apply the principles of payment of compensation at par with the Land Acquisition Act, though such may also leave room,as observed earlier, for larger amount for the deprivation of the land without following due process of law. Under these circumstances, we find that it would be reasonable to award amount equivalent to solatium to the plaintiff on the market value as assessed herein above.
15. One aspect deserves to be taken note of is that as such the relevant year is 1992 during which plaintiff was deprived of the possession of the land in question. Therefore, one might say that the market value is to be assessed as prevailing in the year 1992 and not 1997 as considered earlier. Such aspect can be looked into from two different angles; one is that if the market value is to be assessed as that of the year 1992, there should be proper evidence led by the parties for assessment of the market value in the year 1992. Such question may arise, had both the party been treated as entitlement of the market price during the period of 1992. As observed earlier, both the parties to the proceedings have treated the market price to be paid on the date when the purshis was filed. Such is apparent not only from the purshis, but is also appearing from the conduct of the Corporation at the later stage by the resolution of the Standing Committee and the valuation assessed by the Town Planning Department and further correspondence and above referred statement made by defendant Corporation for readiness to pay the price of 1997 as assessed by the Town Planner. Therefore, it can, as observed earlier, be said that the relevant date to be applied for the assessment of the market price could be the year in which the purshis was filed i.e. 1997. The second aspect is that after the assessment of the market price in the year 1997 of the suit land, if the matter is further examined to trace the value of the land in the year 1992 by going back for five years, one may be required to apply 10% deduction on a reducing balance method since by now it is well settled that the normal appreciation in the market value of the land would be not less than 10%. Applying the said principle to the amount of Rs.387/- per sq. ft., there will be deduction of about 45 to 48% towards the span of five years. After assessment of such market value in the year 1992 if the interest is to be considered and awarded, it would be 9% for the first year and at the rate of 15% per annum for the subsequent year. Then, in that case, such amount would, in the year 1995, be substantially higher than the market price assessed in the year 1997 by us. Consequently, the Corporation would be required to pay higher amount to the plaintiff. Under these circumstances, we have found that in view of the express understanding by the parties to the proceedings and subsequent conduct thereafter, it would be reasonable to consider the basis of market price as in the year 1997 than that of 1992, i.e., the year in which the plaintiff was deprived of the possession of the land.
16. It appears from the judgement of the lower Court that the interest is awarded from the year 1992 till realization at the rate of 12% per annum, but we find that such an approach would not be in conformity with the principles of payment of compensation as per the Land Acquisition Act. If the market value is assessed in the year 1997, the interest could not be considered from 1992. Under the circumstances, we find it appropriate to apply the same principles by taking guiding effect as provided under the Land Acquisition Act when any citizen is deprived of his property under the Land Acquisition Act. Hence, appropriate interest would be 9% per annum for the first year and 15% per annum for the subsequent year until the amount is paid or deposited with the lower Court, whichever is earlier.
17. In view of the aforesaid observations and discussions, it is held that the plaintiffs would be entitled to recover the amount of Rs.39,38,886/- (Rs.387/- per sq. ft., x 10178 sq. ft.) + Rs.11,81,665/- (30% of the earlier amount) total Rs.51,20,551/- with interest at the rate of 9% per annum for the first year from 24.4.1997 (the date on which the purshis was filed on behalf of the Corporation before the lower Court at Exh. 57) and at the rate of 15% per annum for the subsequent year until the amount is actually paid and/or deposited with the lower Court.
18. It appears that the trial Court has committed error in quantifying the lawyer’s fee in the decree. Therefore, we find it appropriate to quantify the cost at Rs.25,000/- being the cost of the lower Court and Rs.25,000/- being the cost for both the appeals.
19. The respondent Corporation shall pay the amount as per the aforesaid order minus the amount already paid within a period of two months from the date of the receipt of the present judgement and order.
20. The cost of the plaintiffs to be borne by the Corporation as quantified herein above. First Appeal No.1873 of 2004 shall stand partly allowed to the aforesaid extent. First Appeal No.2821 of 2004 shall stand dismissed.
(Jayant Patel, J.) (C. L. Soni, J.) vinod