(Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. In present appeal, the acquisition of the land is at Village Dela and the Notification under Section 4 of the Land Acquisition Act, (hereinafter referred to as 'the Act' for short) was published on 3.7.2004 and the Notification under Section 6 of the Act was published on 28.8.2004. It may also be recorded that the land has been acquired for the project of 'Sujlam Suflam' Spreading Canal. It appears that the Special Land Acquisition Officer passed the award on 27.9.2004 and awarded compensation at Rs.7.80 per sq. mtrs. Since the claimant/original owner was not satisfied with the compensation, he raised the dispute, which ultimately came to be referred to the Reference Court for adjudication. The Reference Court, at the conclusion of the reference, by the impugned judgement and award, granted compensation at Rs.440/ per sq. mtrs., being additional compensation plus increase in the price as per Section 23(1A) of the Act, statutory benefit of interest and solatium. It is under these circumstances, the present appeal before this Court.
2. By consent of the parties the matter is taken up for hearing.
3. We have also heard Mr.Niraj Asar, learned AGP for the appellant and Mr.Prajapati for the respondent in the present appeal.
4. On consensus of the parties following order is passed.
5. We may, at the outset, record that in the very Village Dela, the learned Single Judge of this Court (Coram: H.K. Rathod, J.), in First Appeal No.4327 of 2009, decided on 24.11.2009, had an occasion to consider the question of awarding compensation of Rs.480/ per sq. mtrs., by Reference Court, wherein the acquisition of the land at the very Village was made for the same project. In the case before the learned Single Judge, the Notification under Section 4 of the Act was published on 25.7.2005 and the award was published on 23.11.2005 by the Special Land Acquisition Officer and the compensation awarded by the Special Land Acquisition Officer was Rs.8.74 and the Reference Court had awarded the compensation at Rs.480/ per sq. mtrs., against which the appeal was preferred by the State. In the said decision, the learned Single Judge observed at paragraphs 5 and 6 as under: “5. I have considered submissions made by both learned advocates and also perused award passed by Reference Court, Mehsana. The land of original claimant is situated at village Dela, Taluka & District – Mehsana was acquired for purpose of “Sujlam Suflam' Spreading Canal. Section4 notification is dated 25.7.2005 and Section6 notification is dated 27.10.2005. The Land Acquisition Officer has awarded Rs.8.74 per sq. mtr., against which reference was made by claimant Before Reference Court, demand was made by claimant at Rs.1000/ per sq. mtr. The appellants have filed written statement vide Exh.6 against reference and raised contentions that claimant is not entitled any additional amount of compensation because they have denied claim of claimant as to potential value, fertility of land and growth etc. On behalf of claimant, one Bhagwanbhai Dalsangbhai Chaudhari was examined at Exh.16, village form No.7/12 is produced by claimant vide Exh.11, Exh.12 is the certificate dated 3.4.2008 issued by village accountant, TalaticumMantri, Exh.13 is the certificate dated 3.4.2008 issued by village accountant, Talaticum Mantri of village Dela. The claimant has relied upon Exh.14 order passed by District Collector, Mehsana. Thereafter, issues have been framed vide Exh.7 and Issue Nos.1 and 2 have been decided together by Reference Court. The appellants have not produced any evidence on record before Reference Court. In present case, claimant has not relied upon sale instance for getting market price or to determine market value of land. That no sale instances have been produced by appellants before Reference Court. The Reference Court has considered Exh.13, a certificate dated 3.4.2008 and thereafter, reasoning has been given by Reference Court in Para.12, relevant portion is quoted as under:
“Considered the order dated 2.5.2003 – Exh.14 it is seen that, as per decision taken at the meeting of District Valuation Committee held on 11.1.2001 land bearing Block No.1660 is allotted for construction of office as well as staff quarters of Central Excise and Customs, Government of India, Mahesana therefore, in my opinion the present claimants are also entitled to get compensation at the rate of Rs.1111/ per sq. mtr. of land, as notification under Section 4 of the Act is published on 25.7.2005 i.e. there is time gap of 4 years and 6 months and 14 days i.e. 04 years. It goes without saying that, all the lands under reference are acquired for public purpose i.e. public utility, hence, the parity between land allotted for other purpose cannot be made visavis land allotted / acquired for public utilities. So in view of the case of Special Land Acquisition Officer Bharuch v/s. Motibhai Mohanbhai (1997 (1) GLH 773 wherein it is held that market value of the land is determined by taking into consideration the amount awarded in respect of the earlier land acquired in the adjoining village some years before and increasing the said amount by 10% for each year by way of appreciation from the date of the said award till the notification under section 4 published in respect of the land in question. Thus claimants are entitled to get Rs.271.04 ps. (Rs.1111 + 111.10 = Rs.1222.10 + Rs.122.21 = Rs.1344.31 + Rs.134.43 = Rs.1478.78 + Rs.147.87 = Rs.1626.65) as against that they have been paid Rs.8.74 per sq. mtr. obviously claimants are entitled to get additional compensation of Rs.1617.91 per sq. mtr. as market value, however, considering the fact that, the land acquired are lying 500 mtrs. Away from MehsanaVisnagar Highway Road and village Dela is lying 4 km. away from Mehsana District Headquarter and the lands allotted by order dated 2.5.2003 Exh.14 was not allotted for public purpose and the said land was non agricultural land whereas the land acquired were agricultural land, if 30% (after deducting 50% towards NA factor and 20% towards distance factor) of the price arrived at herein above then the claimants would be entitled to get Rs.485.37 ps. hence, the claimants are entitled to get additional compensation of Rs.485.37 per sq. mtr. against the amount of Rs.1000/ claimed by them. The said figure of Rs.485.37 is rounded to Rs.480 for the sake of arithmetical convenience, hence, I answer Issue No.1 in affirmative and Issue No.2 as per finding recorded herein above.”
6. In view of above reasoning given by Reference Court and considering distance between village Dela and Mehsana of about 4 km. and Exh.14 which was considered by Reference Court dated 2.5.2003 where land was not allotted for public purpose and said land was nonagricultural land, whereas the lands acquired were agricultural lands, therefore, 30% price of land is worked out after deducting 50% towards NA factor and 20% towards distance factor and on that basis, Reference Court has rightly come to conclusion that claimant is entitled Rs.480/ against claim of Rs.1000/. Accordingly, the Reference Court has awarded Rs.480/ per sq. mtr. being an additional amount of compensation in favour of claimant. The contentions raised by learned AGP Mr.Sharma cannot be accepted because no evidence was produced on record by appellants and no one was examined by appellants before the Reference Court. Therefore, Reference Court has rightly relied upon evidence of claimant Exh.16 and also considered certificate Exh.12 and Exh.13 and also the order dated 2.5.2003 at Exh.14 and also the difference of purpose for acquiring the land in question and after deducting 50% towards NA factor and 20% towards distance factor, rightly awarded additional amount of compensation of Rs.480/ per sq. mtr. in favour of claimant. For that, the Reference Court has not committed any error which requires interference by this Court. Therefore, there is no substance in present first appeal. Accordingly,present first appeal is dismissed.”
6. In view of the aforesaid decision of the learned Single Judge of this Court, the contention has been raised by the learned Counsel appearing for the respondent – claimant that for Village Dela in respect to the acquisition of the same project the compensation of Rs.480/ per sq. mtrs., awarded for acquisition vide Notification under Section 4 of the Act dated 25.7.2005, if confirmed by this Court, no further appreciation of the facts would be required and this Court may take the same view as has been taken by the learned Single Judge in the above referred matter. It was also submitted that as per his information, the decision of the learned Single Judge has not been carried by the State before the higher forum i.e. Hon'ble Supreme Court. It was also submitted that if, in the very Village the acquisition has taken place for the same project, one land owner is paid the compensation of Rs.480/ per sq. mtrs., save and except the deduction, as may be available, in view of the Notification in the present case under Section 4 of the Act published one year prior to the said land acquisition, there may not be any further deduction of the amount, otherwise it would create anomalous situation. It was submitted it is on account of the fact that the compensation amount was less than Rs.10 lac, the matter was listed before the learned Single Judge and as the subject matter of the present matter is exceeding Rs.10 lac, the matter is placed before this Division Bench. It was, therefore, submitted that this Court may confirm the order passed by the Reference Court by dismissal of the appeal.
7. Whereas, the learned AGP Mr.Asar is not in a position to make any statement as to whether the above referred decision of the learned Single judge has been carried by the State Government before the Apex Court or not. It was submitted by Mr.Asar, learned AGP that even if the boundaries of Village Dela may be touching to Mehsana City, it cannot be said that the same price would be there or that no such difference would be there as considered by the Reference Court in the impugned judgement. It was submitted that the area, which is included in the Municipal locality would stand on a different footing than the area, which is under the control of Village Panchayat. The basic facilities would be different and the said aspect is not considered by the learned Single Judge in the above referred matter and, therefore, this Court may consider.
8. It was also submitted that the deduction, which has been done by the Reference Court based on the sale instances for allotment of the Government land is not sufficient and the compensation awarded is on higher side and, therefore, this Court may reduce the quantum of compensation. It was, therefore, submitted that the error has been committed by the Reference Court and this Court may allow the appeal.
9. It does appear that the acquisition of the land in the present case is in the same Village Dela. Therefore, there is no dispute on the aspect that the land in question is not located at Village Dela. It also appears that for the very Village Dela, in respect to which the acquisition took place as per the Notification under Section 4 of the Act published on 25.7.2005, the Reference Court had awarded compensation of Rs.480/ per sq. mtrs., in the Land Reference Case No.209 of 2008 and the same has been confirmed by this Court in the above referred First Appeal No.4327 of 2009. In such situation the parity can be traced if the subject is the same, but the point, which could not arise for consideration before the learned Single Judge, cannot be said as concluded. At the same time, this Court has to keep in mind that if the acquisition of the land is at the very Village and in one matter a particular amount of compensation is fixed and confirmed by this Court (learned Single Judge), it would not create an anomalous situation resulting into less compensation to others, whose appeals were not placed before the learned Single Judge at the relevant point of time due to the Rules of business of this Court. We are conscious of the fact that the view of the learned Single Judge is not binding fully to the Division Bench of this Court and it is open to the Division Bench of this Court to take a different view for the valid reasons if the circumstances so demand. 10.It appears to us that unless there are basic aspects, which, if not considered by the learned Single Judge, can be taken into consideration by the Division Bench for taking a different view, but merely because a particular contention could be argued and was not argued should not result into reopening the aspects of the assessment of the valuation of the land, which has been confirmed by the learned Single Judge of this Court. Having considered the aforesaid, the matter of the present case may further be required to be considered.
11. The contention raised by the learned AGP for reduction of the valuation by considering the aspects of locality in the urban area available within the limits of Mehsana Municipality and within the limits of Gram Panchayat of Dela, in our view, if considered, may result into reopening the aspects, which are already considered and concluded by the learned Single Judge in the above referred decision and more particularly the observations made at paragraph 5 reproduced herein above. Therefore, we are not inclined to undertake the exercise of reassessment of the valuation of the land, keeping in view the location, when the said aspect is already considered by the learned Single Judge and who has concurred with the view taken by the Reference Court.
12. However, the other aspects of proportionate reduction in comparison to the difference as was found by the Special Land Acquisition Officer while passing the award and the aspects of deduction of the amount of compensation already awarded by the Special Land Acquisition Officer from the price fixed by the Reference Court deserves consideration. It is an admitted position that for the land, which was subject matter of First Appeal No.4327 of 2009, the Special Land Acquisition Officer had awarded compensation at Rs.8.74 per sq. mtrs., and the Reference Court had awarded compensation of Rs.480/ per sq. mtrs., as additional compensation. The reasoning recorded by the Reference Court shows that the price of Rs.480/ is fixed by the Reference Court on the date of the Notification under Section 4 of the Act keeping in view the sale instances of allotment of the land by the Government for a public purpose.
13. It is also an admitted position that the Reference Court has fixed the price at Rs.480/ per sq. mtrs. When the price was fixed at Rs.480/ per sq. mtrs., the additional amount of compensation would not be the same, but it was required for the Reference Court to deduct the amount of Rs.8.74 per sq. mtrs., which was awarded in that case and thereafter to grant additional compensation. Whereas the reasoning recorded in the said matter by the Reference Court was on the basis that out of the price of Rs.1626.65 per sq. mtrs., the Reference Court deducted Rs.8.74 per sq. mtrs., and calculated the amount at Rs.1,617.90 per sq. mtrs., and thereafter by giving further deduction of 70% the figure is arrived at Rs.479.70 and rounded off at Rs.480/ per sq. mtrs. The aforesaid, in our view, can be said to be an apparent error on the part of the Reference Court. If the Reference Court has assessed the price, may be by rounding off the figure at Rs.480/ per sq. mtrs., it was required for the Reference Court to give set off of the amount already fixed as compensation by the Special Land Acquisition Officer and thereafter to award the net compensation. Unfortunately, such contention appears to have not been raised before the learned Single Judge by the learned AGP, who appeared before the learned Single Judge and consequently it can be said that the learned Single Judge had no occasion to consider the said aspect. If the said aspect, which appears to be an error apparent on the face of record committed by the Reference Court is not considered in the above referred decision of the learned Single Judge, we find that such deserves to be considered in the present case. Therefore, the price as may be fixed by the Court for the land under acquisition, even if considered, while passing the order for additional compensation, the amount already paid by the Special Land Acquisition Officer is required to be given set off in the present case.
14. The another aspect which, of course, did not arise at all for consideration before the learned Single Judge, but arises in the present case for consideration before us, is difference in the price assessed by the Special Land Acquisition Officer while passing the award. It appears that the Special Land Acquisition Officer for the land in question has awarded Rs.7.80 per sq. mtrs., as compensation, whereas in the above referred case, which was subject matter of First Appeal No.4327 of 2009, the Special Land Acquisition officer has awarded compensation of Rs.8.74 per sq. mtrs. Even if Rs.480/ per sq. mtrs., is taken as a basis being the price of the land, keeping in view the difference as was borne in mind by the Special Land Acquisition Officer and such aspect, if considered, the price of the land in comparison to Rs.480/ per sq. mtrs., for the year 2005, would come to Rs.428.37 per sq. mtrs., and if rounded off, it would come to Rs.428/ per sq. mtrs., whereas the Reference Court has awarded Rs.440/ per sq. mtrs.
15. In view of the observations, the price of the land would be Rs.428.37 per sq. mtrs., but it appears that the Reference Court had deducted the amount of the compensation paid by the Special Land Acquisition Officer from the gross figure of Rs.1,626.65 as referred to hereinabove. Out of the aforesaid price, of Rs.428.37 per sq. mtrs., the amount of Rs.7.80 has been paid as the compensation by Special Land Acquisition Officer. Therefore, the net amount would come to Rs.420.57 per sq. mtrs., as additional compensation. If the said figure is rounded off in view of the peculiar circumstances of the case that while calculation of the gross price on the basis of the sale instances for allotment of the Government land, the Reference Court had deducted the amount of Rs.7.80 per sq. mtrs., as referred to hereinabove it would be just and proper to round off the figure at Rs.421/ per sq. mtrs. Such amount of Rs.421/ per sq. mtrs., would be additional amount of compensation as was required to be fixed by the Reference Court. As against the same, the Reference Court has awarded the amount of compensation of Rs.440/ per sq.
mtrs., as additional compensation. Therefore, the judgement and award passed by the Reference Court deserves to be modified to that extent.
16. So far as the other benefits awarded by the Reference Court for increase in the price under Section 23(1A) of the Act and solatium under Section 23(2) of the Act and interest under Section 28 of the Act are concerned, they are all statutory benefits and the order passed by the Reference Court is not required to be interfered with on the said aspects, save and except that in view of the reduction of the principal amount of additional compensation at Rs.421/ per sq. mtrs., such amount shall proportionately get reduced.
17. Hence, the judgement and decree of the Reference Court so far as awarding compensation exceeding Rs.421/ per sq. mtrs., as additional compensation is quashed and set aside. Consequently, the claimant would be entitled to the additional compensation at Rs.421/ per sq. mtrs. In addition to the above, the claimant shall also be entitled to the benefits of additional increase under Section 23(1A) of the Act, solatium at the rate of 30% under Section 23(2) of the Act and the interest as per Section 28 of the Act. The other observations made by the Reference Court for no deduction of the new tenure land is not required to be interfered with.
18. The appeal is partly allowed to the aforesaid extent. No order as to costs. Decree accordingly.
(D.H.WAGHELA, J.) (Z.K.SAIYED, J.) kks