(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. Mr.Keyur Gandhi, learned Counsel for Nanavati Associates for the appellant/acquiring body in First Appeal No.188 of 2003 to 211 of 2003 states that IBP Co. Limited is taken over by IOC and, therefore, he may be permitted to add the description of the appellant accordingly. Permission granted.
2. As all the matters arise from the common judgement and award passed by the Reference Court, they are being considered simultaneously. All the matters are directed against the judgement and award dated 22.7.2002 passed by the Reference Court in Land Acquisition Reference Cases No.2468 of 1996 to 2491 of 1996, whereby the Reference Court has awarded additional compensation at Rs.100/- per sq. mtrs., and has also awarded statutory benefits of additional compensation as per Section 23(1-A), solatium as per Section 23(2) and interest as per Section 28 of the Act.
3. The short facts are that for the construction of storage depot of Indian Oil Corporation, the lands at Village Sidhpur were to be acquired under Land Acquisition Act (hereinafter referred to as 'the Act'). The Notification under Section 4 of the Act was published on 28.6.1993.
Thereafter, the Notification under Section 6 of the Act was published and the award was passed by the Special Land Acquisition Officer, whereby he awarded compensation at Rs.10/- to Rs.13/- per sq. mtrs., inasmuch as Rs.10/- per sq. mtrs., was awarded to the lands, where there was no access or entry directly or even indirectly. He awarded Rs.11/- per sq. mtrs., to the land owners/claimants, where there was indirect entry to the land and he awarded Rs.13/- per sq. mtrs., to the claimants/owners of the land, where there was direct entry available from highway to the land. As the claimants were not satisfied with the award, they raised the dispute under Section 18 of the Act and initially demanded compensation at Rs.200/- per sq. mtrs., and subsequently amended the quantum of compensation to Rs.500/- per sq. mtrs. All disputes were referred to the Reference Court for adjudication being Land Reference Cases No.2468/96 to 2491/96. The Reference Court, at the conclusion of the reference, passed the aforesaid judgement and award, against which the acquiring body has preferred appeals for reduction of the compensation being First Appeal Nos.188 of 2003 to 211 of 2003, whereas the original claimants have preferred Cross Objections No.125 of 2012 to 148 of 2012 for enhancement of compensation.
4. We have heard Mr.Kayur Gandhi, learned Counsel for Mr.Nanavati Associates for Indian Oil Corporation (Acquiring Body), Mr.A.N. Patel, learned Counsel for the original claimants and Ms.Moxa Thakkar, learned AGP on behalf of the Special Land Acquisition Officer. Since there are cross objections, we may refer the appellant as acquiring body, and the claimants shall be described as 'original claimants', who are respondents herein in the appeal preferred by the acquiring body – IOC. Therefore, they shall, for the sake of convenience, be referred as 'original claimants'. We have considered the judgement and reasons recorded by the Reference Court. We have also considered the record and proceedings.
5. It appears that the Reference Court was justified in not relying upon the compensation awarded in respect of the acquisition of the land at Village Rajpur, which came to be granted by this Court in the proceedings of First Appeal No.3415 to 3418 of 2000, inasmuch as the lands in question were located within the limits of Sidhpur itself, which was a Taluka City at the relevant point of time, whereas the lands under acquisition in the said proceedings being First Appeal No.3415 of 2000 to 3418 of 2000 were located at Village Rajpur, altogether a different Village. It is not that such compensation granted in respect of the lands under difference acquisitions of the nearby village cannot at all be taken into consideration in every case, but such may be required to be considered, if there is no other evidence available before the Court for making comparison of the lands and for assessment of the market value thereof. Since, in the present case there are other evidences available for the value of the land at Sidhpur Taluka City itself, it could not be said that the Reference Court has committed error in not taking into consideration the compensation awarded for a different Village Rajpur at a distant place than Sidhpur Taluka City.
6. The aforesaid would take us to examine the aspects about the consideration of the evidences by the Reference Court for assessment of the market value of the land in question. One of the aspects, which has been taken into consideration by the Reference Court, is the document Exh. 22 for sale of the lands dated 3.7.1993, located at Village Sujanpur, just adjacent to boundary of Sidhpur City.
7. The learned Counsel for the appellant – acquiring body, did raise the contention that such document, even if the purchaser and seller are examined, could not have been considered by the Reference Court, since it was not only post Notification, but was also in order to see that undue benefit is procured in the present acquisition by showing higher market price of the adjoining area. He submitted that, therefore, the Reference Court has committed clear error in considering the said document Exh. 22 and consequently considering the market value in the said sale deed for the purpose of assessment of the market value of the land in question, whereas Mr.Patel, learned Counsel appearing for the original claimants submitted that the land, which was subject matter of the document Exh. 22, was in the just boundary area of Sidhpur Town and, therefore, the learned Judge has rightly taken into consideration the said aspects and no error has been committed.
8. We find that it is not a matter where the Reference Court has only considered the said document Exh. 22 and has arrived at the market value, but from the reasons recorded by the Reference Court, it appears that the Reference Court has also taken into consideration the documents Exh.10 to 13 for sale of the lands at Sidhpur itself and thereafter has assessed the market value of the land. In our view, when the evidence was already available before the Reference Court for the sale instances of the land at Sidhpur itself, the Reference Court could have given more weightage to those documents for sale of the land at Sidhpur, instead of the sale instances of the land of the adjacent Village, which was, in any case, after the Notification under Section of the Act. It is hardly required to be stated that the market price of the adjoining land of the adjacent village may be required to be taken into consideration, if there is no other evidence available or rather reliable evidence available for market value of the land located at the very city or the town, but in the present case the evidence was available for the sale instances of the land at Sidhpur itself and, therefore, the learned Judge ought to have given more weightage to the sale instances of the land at Sidhpur, which was not outside the boundary of Sidhpur Town.
9. We may record that the attempt was made by the learned Counsel for the appellant to contend that only relevant extract of the Index were produced at Exh. 10 to 13 for showing the sale instances of the claimants. It was, therefore, submitted on behalf of the appellant – acquiring body that the Court may not rely upon such documents. The examination of the contention raised on behalf of the appellant is to be considered, keeping in view the aspect that on behalf of the opponent – acquiring body, no evidence whatsoever has been led to show otherwise. Further, we find that the other sale instances, which have come on record are post Notification and could also be said as of a different land for which the reliance cannot be placed for assessing the market value of the land. Under these circumstances, we find that the contention raised does not deserve to be accepted.
10. It is undisputed position that as per the documents at Exh. 10 to 13, transactions of sale for the land at Sidhpur itself have come on record. Exh. 10 is for sale of the land admeasuring 51 sq. mtrs., bearing Survey No.1256 and in the said Exh., it has also been mentioned that the land is N.A., and open land. If the area is considered with the price mentioned in the document, it would come to Rs.380/- per sq.
mtrs., on 2.7.1992. Further, the document Exh.11 shows that the same was in a margin land admeasuring 67.77 sq. mtrs., bearing City Survey No.3295 for Rs.20,000/- and the date of the deed is 7.9.1992 and, therefore, the price would come to Rs.280/- per sq. mtrs. The document Exh.12 shows that for the land admeasuring 61.95 sq. mtrs., bearing City Survey No.1893 the consideration paid was of Rs.30,000/- on 10.9.1992 and accordingly the price would come to Rs.490/- per sq. mtrs. In our view all the aforesaid sale instances are relevant for the purpose of consideration of the market price, inasmuch as they are approximately one year prior to the Notification and, therefore, it could not be said that they were executed by the parties in order to enable the owners of the land to earn any undue benefits as sought to be canvassed on behalf of the appellant – acquiring body. As such the most comparable sale instance from amongst the aforesaid available documents could be the sale instance dated 2.7.1992 for the land admeasuring 51.13 sq. mtrs., and the reason being that the same was having revenue survey number in addition to the city survey number. It is hardly required to be stated that if the land is bearing city survey number, the same would be within the city, but if the revenue survey number is also there, it may be on the outer area of the city, but within Revenue limits of the city. Further the lands in question are bearing revenue survey number and, therefore, it can be considered with the sale instance at Exh.10, which is for a portion of the sale of the land bearing survey number. If the only instance is considered the price could be said as Rs.380/- per sq. mtrs., of the land, which has been sold on 2.7.1992.
11. The attempt made by the learned Counsel for the appellant – acquiring body that the minimum amount as mentioned in another sale deed dated 7.9.1992, wherein the per sq. mtrs. price comes to Rs.280/- may be considered, in our view, cannot be countenanced for the simple reason that the matter cannot be segregated as sought to be canvassed merely because the lower price is available. As such, if the sale instances are to be considered Court may take into consideration the highest sale instance available, but if the contention is further considered, at the most it may be accepted to averaging out the prices of such transactions of the land. If all the three transactions are considered, average price would come to Rs.384/-. As against the same, as observed earlier by us, Rs.380/- is the price mentioned in the document Exh.10. Therefore, we find it proper to proceed on the basis that the price of the lands, which are subject matter of the aforesaid documents Exh.10 to 13, could be considered as Rs.380/- per sq. mtrs.
12. The transaction in question at Exh.10 is in the year 1992, whereas the acquisition in the present case is in the year 1993. Therefore, there is roughly difference of about one year from the date of the document at Exh. 10 and the Notification under Section 4 of the Act. Under these circumstances, the appreciation at the rate of 10% per annum would be required to be considered. Accordingly, if the amount of Rs.38/- (10%) is added to the aforesaid figure of Rs.380/-, it would come to Rs.418/- and it could be said that Rs.418/- would be the market price of the land, which is the subject matter of the document at Exh.10 in June 1993. It appears from the map – Exh. 18, which is part of the record that the land in question is located at the boundary of Sidhpur City, whereas the land, which is the subject matter of the document at Exh,10 is bearing not only Revenue Survey number, but is also bearing City Survey number. Even if it is considered on the basis of the revenue survey number, it appears that the land, which is subject mater of the document at Exh.10 is near to Sidhpur main City, whereas the land in question is on the outskirt area of the City of Sidhpur. Therefore, the distance factor is required to be considered. In view of the fact that the land in question is on the outskirt of City Area, rather bordering on the border of Sidhpur Town, we find it proper to make the deduction of 10% towards distance factor of Rs.41/- and consequently the net amount would come to Rs.377/- per sq. mtrs. It also appears from the document at Exh. 10 and even if the size is considered of the document at Exh.11 and 12, they are for a very small portion of the land namely; from 51 sq. mtrs. to 67 sq. mtrs., and 61 sq. mtrs., in any case, not exceeding 70 sq. mtrs. As against the same, the land under acquisition is of 1,16,183 sq. mtrs. Under these circumstances, it appears to us that since the huge area of land is under acquisition as against the size of the land for which the sale instances have come on record, it would be appropriate to make deduction of 50% from the aforesaid amount of Rs.377/-. If the deduction is made of 50%, the net amount would come to Rs.188.50 and if rounded off, it could be said as Rs.188/- per sq. mtrs., and such could be termed as the price of the land on the bordering area of Sidhpur, provided they are non-agricultural land. It is an admitted position that the lands under acquisition are agricultural lands and not non- agricultural lands, though in the periphery area the land may be non-agricultural land. In considering the aspect of N.A., factor, deduction towards Road, Common Plot, etc., are required to be considered, and such would call for deduction of 25%. Further, there would also be expenses for conversion of the land from agricultural to non-agricultural, including that of conversion tax premium, if any, etc. Therefore, under these circumstances, we find it proper to apply deduction of 33% towards N.A., factor from the aforesaid figure of Rs.188/- and 33% of the aforesaid amount would come to Rs.62.04 and if rounded off, it would come to Rs.62/- per sq. mtrs. After deduction of the said amount, the net amount would come to Rs.126/- per sq. mtrs. Such, in our view, can be assessed as market value of the land in question at the time when the Notification under Section 4 of the Act was published.
13. The Special Land Acquisition Officer has assessed the market value of different parcel of the lands as recorded earlier into three categories; (1) for the land for which there was no access for road available and for such type of land he has awarded compensation at Rs.10/- per sq. mtrs.;
(2) for the land for which there was indirect access or way available to the land, he has awarded Rs.11/- per sq. mtrs.; and (3) for the land for which there was access to road available, he has awarded compensation at Rs.13/- per sq. mtrs. Under these circumstances, if the basis is taken of Rs.13/- per sq. mtrs., at the highest in comparison to the aforesaid market value assessed by us at Rs. 126/- per sq. mtrs., those claimants who have been awarded compensation at Rs.13/- per sq. mtrs., would be entitled to additional compensation at Rs.113/- per sq. mtrs., as against Rs.100/- awarded by the Reference Court. However, so far as the original claimants, who have been awarded compensation at Rs.11/- per sq. mtrs., we find that such market value of such land would be less than those lands, which are having direct access/way from the road and, therefore, we find it proper to assess the value at Rs.120/- per sq. mtrs. As Rs.11/- per sq. mtrs., has already been awarded as compensation, they would be entitled to get an additional compensation at Rs.109/- per sq. mtrs., as against Rs.100/- per sq. mtrs., awarded by the Reference Court. However, so far as the lands, which are not having any access to road/way, the market value of the said lands will be further less than the lands, which are having indirect way/access. Under these circumstances, we find it proper to assess the market value of those land at Rs.110/- per sq. mtrs. Out of the said amount, as Rs.10/- per sq. mtrs., has already been awarded as compensation, those claimants would be entitled to the additional compensation at Rs.100/- per sq. mtrs., which, of course, has already been awarded by the Reference Court.
14. In view of the aforesaid observations and discussion, the award passed by the Reference Court would be required to be modified to the aforesaid extent.
15. In view of the aforesaid observations and discussion, it is held that (1) the original claimants, who have been awarded compensation at Rs.13/- per sq. mtrs., would be entitled to additional compensation at Rs.113/- per sq. mtrs.; (2) the original claimants, who have been awarded compensation at Rs.11/- per sq. mtrs., by the Special Land Acquisition Officer would be entitled to the additional compensation at Rs.109/- per sq. mtrs., and (3) the original claimants, who have been awarded compensation at Rs.10/- per sq. mtrs., by the Special land Acquisition Officer, would be entitled to the additional compensation of Rs.100/- per sq. mtrs. The judgement and award of the Reference Court to the aforesaid extent shall stand modified accordingly. The other benefits awarded by the Reference Court are by way of statutory consequence namely; increase in the market price as per Section 23(1-A); solatium as per Section 23(2) and interest as per Section 28 of the Act and, therefore, no interference is called for.
16. Hence, the appeals preferred by the appellant/acquiring body being First Appeal Nos.188 to 211 of 2003 are dismissed. Cross Objections preferred by the original claimants being Cross Objection Nos.125 to 148 of 2012 shall stand allowed to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs.
(Jayant Patel, J.) (C. L. Soni, J.) vinod