1. The present First Appeals are directed against the judgment and award rendered in Land Acquisition Reference Nos.3497 & 3498 of 2003 by the Learned 3rd Additional Sr. Civil Judge, Mahesana dated 09.01.2008 on the grounds stated in the memo of Appeal inter alia that the Reference Court has erred in appreciating the material and evidence on record. It is also contended that the reliance placed by the Reference Court in Land Acquisition Reference No.3226/2003 is erroneous and the said judgment relied upon has been challenged in the Appeal and the appeal has been allowed.
2. Heard learned counsel appearing for the respective parties.
3. Learned counsel, Mr.Marshall pointedly referred to the material and evidence including the judgment and award and submitted that the Reference Court has erred in observing that the sale instances of the surrounding village may be considered. He submitted that the reliance has been placed on the judgment of the Reference Court being Land Acquisition Reference No.3226 to 3229 of 2003, however, the same has been accepted by this Court in First Appeal and, therefore, it could not be the basis for the present award. Learned counsel, Mr.Marshall submitted that there is no discussion with regard to the nature of the land, yield of the land and situation of the land. He submitted that the reliance is placed only on the previous award in Land Acquisition Reference No.3226/2003. He submitted that the comparison of the land with the adjoining village and on the basis thereof, the assessment has been made adding 10% is erroneous. Learned counsel, Mr.Marshall submitted that if the sale deed of the sale instance of the same village are available then there is no need for comparing the sale instance of the adjoining village. He submitted that in fact if the sale instances are considered to be one of the criteria then the sale instance of the land of the same village ought to have been considered and there was no need for considering the sale instance of the neighbouring village. Learned counsel, Mr.Marshall submitted that that lands have been acquired in the present case in respect of the land of Village : Kasalpur, Taluka & District : Mehsana for the purpose of G.G.S./C.T.F. Project. He submitted that the land acquired of Village : Santhal referred in Land Acquisition Reference Nos.3226 to 3229 of 2003 cannot be considered as comparable, therefore, the Reference Court has erroneously discussed and relied upon such previous award. Learned counsel, Mr.Marshall submitted that even the said judgment of the Reference Court in that case has been assailed and challenged in the Appeal, which has been overlooked and, therefore, learned counsel, Mr.Marshall submitted that the Reference Court itself has observed with regard to the acquisition of the land and the judgment for the lands situated in Kasalpur and it has also been observed that the land in question is on MehsanaJotana Road and it is 1213 Kms. away from Mehsana. There is specific observation and finding that there is no factory or market in Village : Kasalpur. He submitted that the claimants have not produced any evidence regarding the cultivation or the yield. He, therefore, submitted that the market value of the land in question has been arrived at on the basis of the aforesaid award in case of land of Santhal village on the ground that the land of Kasalpur is adjoining to Village : Santhal and on that basis, it has arrived at the value at the rate of Rs.16.47 adding 10% increase in the price per year and on that basis, the compensation at the rate of Rs.47/ is awarded, which is not just and proper. Again learned counsel, Mr.Marshall submitted that there is no discussion about the similarity between the land of Santhal and Kasalpur with regard to the nature of the land. He submitted that there is no discussion with regard to other relevant criteria and, therefore, the impugned judgment and award is erroneous. He has referred to and relied upon the judgment in case of Hirabhai & Ors. Vs. Land Acquisition OfficercumAssistant Commissioner, reported in (2010) 10 SCC 492 and submitted that as observed in this judgment, the evidence of comparable sale how it can be considered. Learned counsel, Mr.Marshall submitted that if there is no evidence regarding the nature of quality of the land with reference to the yield etc., it could not be relied upon. Learned counsel, Mr.Marshall has referred to and relied upon the deposition of witnesses including Dinesh at Exh.19 and submitted that he has admitted that though there are sale instance of Village : Kasalpur, no evidence has been produced by producing any sale deed. Learned counsel, Mr.Marshall submitted that in fact, some of the sale deeds are for the sale instances showing the value at Rs.3 or 4 per sq.mtrs. and, therefore, it may not have been produced. He has also referred to other evidence in the form of village form, which has been placed on record.
4. Learned counsel, Mr.Prajapati has referred to the impugned award and has tried to submit that the Reference Court has considered the relevant aspects and has also relied upon the previous award in case of land of Village : Santhal. He submitted that Village : Santhal and Village : Kasalpur in the present case are adjoining village and, therefore, reliance placed on the previous award is just and proper. He submitted that the aspect of fertility, location etc. has been considered and, therefore, it cannot be said that the judgment is erroneous without considering such aspects. Learned counsel, Mr.Prajapati submitted that as observed in the judgment, the land in the present case of Village : Kasalpur is adjoining to Village : Santhal as it has been observed in the impugned award of the Reference Court. He submitted that in fact, Kasalpur, Santhal, Balol are all adjoining village. He submitted that the observations made in the award of the Reference Court that the claimant has not led sufficient evidence is erroneous as Village Form No.7/12 has been produced. Further, learned counsel, Mr.Prajapati has also referred to the judgment of the Reference Court in Land Acquisition Reference No.3642 to 3645 of 2003 and the observations made there in referring to the judgment of the High Court in First Appeal No.3658/2001 dated 18.01.2002, wherein the it has been observed that “It is known that the price of all the commodities are increasing every year. The price of land is also increasing every year. Even the Apex Court in several cases has pointed that 10% increase should be given per year while determining the market price.” Therefore, learned counsel, Mr.Prajapati submitted that when the lands of agriculturist are acquired, they are required to pay adequate compensation.
5. In view of the rival submissions, it is required to be considered whether the present First Appeals can be entertained or not.
6. As it is evident from the material and evidence and the observations in the impugned award of the Reference Court, there is no doubt that the Reference Court has relied upon the previous award in Land Acquisition Reference No.3226 to 3229 of 2003. However, there is specific observation in the impugned award of the Reference Court itself in the present case that Village : Kasalpur is 1213 Kms. away from Mehsana and it is on interior side. Therefore as rightly submitted that the reliance placed on the land acquired of Village : Santhal could not have been the basis for compensation. It is well accepted that the relevant criteria for deciding such market value are nature of land, situation of land, yield and prospect for potential development. The Hon'ble Apex Court in case of General Manager, Oil & Natural Gas Corporation Limited Vs. Rameshbhai Jivanbhai Patel & Anr., reported in (2008) 14 SCC 745 has clearly observed that increase in the land prices depends upon the various factor, which have been discussed in the said judgment.
7. Reliance placed on the previous award has been material and the litigation before this Hon'ble Court and, therefore, it could not have been followed. Further, there is another judgment of this Court delivered in First Appeal No.5621/2008 dated 23.12.2010 (Coram : K.S. Jhaveri, J.), wherein it has considered the acquisition of the land of Village : Jotana of Mehsana taluka, which is adjoining village. This Court after considering the judgment of the Reference Court, which has been referred in the said judgment has accepted the market value of the land in that case at Rs.44 per sq.mtrs. In the facts of the present case, the Reference Court has taken the market value and awarded additional compensation at the rate of Rs.44.20 and after considering the amount, which has been awarded, it has been rounded off Rs.247, which has not been discussed. Therefore, considering the totality of the facts and circumstances of the case and also the judgment of the Reference Court in other cases as well as the judgment of this Court as referred to hereinabove, the market value can be taken at Rs.44 and the claimants would be entitled to additional compensation at the rate of Rs.44.
8. In the circumstances, the impugned judgment and award passed by the Learned 3rd Additional Sr. Civil Judge, Mahesana in Land Acquisition Reference FA/2798/2008 10/10 JUDGMENT Nos.3497 & 3498 of 2003 dated 09.01.2008 is hereby modified to the extent that instead of compensation at the rate of Rs.47/ per sq.mtrs., the original claimants are entitled to Rs.44/ per sq.mtrs. over and above the amount of compensation already awarded by the Special Land Acquisition Officer. It is also clarified that the claimants would be entitled to other statutory benefits under the law. Accordingly, the present appeals stand allow party to the aforesaid extend.
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(RAJESH H.SHUKLA, J.)