(Per : HONOURABLE MR.JUSTICE C.L. SONI) 1. Appellants-claimants are in appeal against the judgment and award dated 24.10.2000 passed by Extra Assistant Judge, Mehsana in Land Acquisition Reference No.236 of 1996. The facts which are noticed from the record of the case are as under:-
2. Lands of the present appellants-claimants situated at village Siddhpur came to be acquired for the construction of Staff Quarters of Indian Oil Corporation. Notification under Section 4 of the Land Acquisition Act (for short, 'the Act') was published on 5.5.1987 and notification under Section 6 of the Act came to be published on 10.8.1987. Possession of the land was taken on 17.9.1987 by applying urgency clause. The Land Acquisition Officer passed award on 30.4.1988, awarding Rs.22/- per Sq. Mtr. for the land adjacent to the Highway and Rs.18/- per Sq. Mtr. for the land which is situated away from Highway. Aggrieved by the above-said award passed by the Land Acquisition Officer, the appellants-claimants requested the Land Acquisition Officer to raise reference under Section 18 of the Act. Before the Land Acquisition Officer, the appellants-claimants had already claimed Rs.100/- per Sq. Mtr.
2.1. Before the Reference Court, on behalf of claimants, one Ambaram Shivram Patel, appellant No.3 herein, was examined at Exh.16. In his deposition, the said witness has stated that the lands acquired were touching Ahmedabad- Delhi Highway and the same were irrigated land, they were taking three crops a year, there are about 10 to 12 banks in the village, the land is within the limits of Siddhpur Municipality, there are colleges, high schools, GIDC as also factories of Isabgul and all facilities at taluka level were available. This witness also produced on record copy of one judgment at Exh.15, which was in respect of adjacent village Rajpur, land of which was acquired for Kandla Bhatinda Pipeline. It is stated by the said witness that vide the said judgment, Rs.70/- per Sq. Mtr. Was awarded by the Reference Court. In his cross-examination, said witness has reiterated that the banks, colleges and other offices were situated within the limits of village and he has further stated that the market price of the land would be Rs.100/- per Sq. Mtr., as claimed by the claimants before the Reference Court. Claimants have also placed on record the extract of 7/12 form to establish three crops being taken a year from the acquired lands and also to establish that the lands were having irrigation facilities. Learned Reference Court, however, came to the conclusion that the claimants have not relied on any sale instance, claimants have also not relied on any evidence in respect to the yield and there is no supporting document produced by the claimants. Learned Reference Court has, then recorded that the only instance relied on by the claimants is of previous judgment in respect of the lands of village Rajpur, which, in view of the learned Judge, cannot be said to be a comparable instance for the purpose of assessing the market value of the land of the claimants. Learned Judge has come to the conclusion that considering the situation of the land of the claimants, there is lack of complete evidence so as to compare with the instance of the land for which there was previous judgment by the Reference Court, therefore, discarding the previous judgment on which reliance was placed, learned Judge came to the conclusion that there was no other evidence produced by the claimants and since the claimants have not come out with any positive evidence even to decide on the basis of annual yield of the lands, the claimants cannot be said to have proved their claim for additional amount of compensation for the acquired land. Appreciating the evidence of the claimants, learned Judge has come to the conclusion that the judgment upon which reliance is placed pertained to the lands of village Rajpur and the claimants being unaware of even the situation of village Rajpur and since there is no comparison, which can be made of the land of the claimants to the land of village Rajpur, learned Judge came to the conclusion that the claimants were not entitled to any additional compensation and confirmed the compensation fixed by the Land Acquisition Officer and ultimately dismissed the reference in toto by the impugned judgment and award.
3. We have heard learned advocates for the appellants-claimants as also for the respondent acquiring body as also learned Assistant Government for the State Government. Learned advocate for the appellants has submitted that the lands of the appellants-claimants were situated near National Highway and for all purposes, the land of the appellants could be said to be within the developed area. He pointed out that surrounding to the land of the appellants, there were banks, industrial area and other facilities of taluka place were available. He has also argued that the lands of the appellants were irrigated and the appellants were taking three crops a year, therefore, in no circumstances, Reference Court could have ignored the potentiality of the land and even if no instance was to be considered, then considering the potentiality of the land, learned Reference Court ought to have awarded additional amount by way of compensation to the appellants-claimants. Learned advocate has further argued that learned Reference Court has also committed serious error in discarding the evidence of previous judgment relied on by the appellants claimants. He pointed out that previous judgment was most reliable evidence so as to assess the compensation in the case of the appellants, because the compensation awarded by way of previous judgment was in respect of village Rajpur which was within the Municipal limits of Siddhpur. He pointed out that the land of village Rajpur was only at the distance of 1.5 km. from the land of the present appellants and therefore, learned Reference Court ought not to have discarded the evidence of previous judgment in respect of Rajpur village where the compensation is awarded at the rate of Rs.70/- per Sq. Mtr. He has taken us to the copy of the said judgment and pointed out that the only difference is about the date of issuance of notifications under Section 4 of the Act. There is time gap of about 2 years between notification in the present case and notification in the case of land of village Rajpur. He submitted that in the case of the land of village Rajpur, Reference Court awarded Rs.70/- per Sq. Mtr. against the claim of Rs.120/- per Sq. Mtr. after deducting 40% towards development charges relying on the judgment of the Hon'ble Supreme Court. He, therefore, submitted that since Rs.70/- per Sq. Mtr. was arrived at after deducting 40% of the amount, in the case of the lands of village Rajpur and since the difference of notifications between two villages is of two years, by some reduction, in the case of the appellants, the appellants can be awarded reasonable additional amount of compensation.
4. As against the above-said arguments advanced by learned advocate for the appellants, learned advocate Mr. Dipen Shah for the acquiring body has submitted that learned Reference Court has not committed any error in discarding the instance of previous judgment relied on by the appellants. He submitted that the lands of village Rajpur were part of the developed area of Siddhpur and since in that case, looking to the overall situation and location of the lands as also the potentiality of the said lands, its market price was fixed by the learned Reference Court. He pointed out that the land in the present case cannot be compared with the lands of village Rajpur. The land in Rajpur village being away from the land of the appellants, therefore, learned Reference Court has rightly discarded the previous judgment relied on by the appellants-claimants. Learned advocate has further pointed out that since the claimants have failed to establish the potentiality of the land, learned Reference Court has rightly not assessed the value of the land on the basis of the yield method and since the appellants-claimants had not produced any cogent evidence in support of their claim, learned Reference Court has not committed any error in confirming the assessment of the value done by the Land Acquisition Officer. Learned advocate Shri Shah has also relied on the judgment of Supreme Court in the case of Chandrashekhar (Dead) By LRs and other Vs. Land Acquisition Officer and Another reported in (2012) 1 SCC 390, to point out that deduction towards development for the land in question even if the judgment in the case of Rajpur village is to be relied on, cannot be at the rate of 40%. He has pointed out that for the development of the land in the present case, expenses would be on much higher side because considering the situation of the land in question, deduction as done in the case of Rajpur village for the development purpose cannot be straightway applied in the case of the land of the appellants. From the said judgment, learned advocate has pointed out the categories laid down by the Hon'ble Supreme Court for deduction towards development and urged that looking to the situation of the lands of the appellants, various factors as provided in para 19.1, 19.2 and elaborately explained and discussed in para 33 and 34, are required to be considered. He, therefore, submitted that even if the instance of the previous judgment to be relied in the case of the appellants-claimants, then also, deduction towards development charges to the extent of around 67% is required to be made.
5. Learned Assistant Government Pleader Ms. Moxa Thakkar appearing for the State while adopting the arguments of learned advocate Mr. Dipen Shah, has submitted that since the appellants- claimants have failed to produce on record any comparable instance so as to assess the value of the land of the claimants. She submitted that the claimants have failed to produced on record any evidence in respect of potentiality of the land and the learned Judge has, therefore, rightly come to conclusion that there was no evidence on the side of the appellants-claimants to decide the compensation on the basis of yield method. She also submitted that the previous judgment was in the case of Rajpur village, which was far away from the land of village of the appellants and since there was no other instance for comparison of the value of the land of the appellants produced by the appellants-claimants, the learned Reference Court has rightly confirmed the award passed by the Land Acquisition Officer.
6. Having heard learned advocates for the parties and having perused the record of the case, we are of the view that considering the evidence on record, it was not a case of total rejection of the reference by the Reference Court. The appellants-claimants have already produced on record the extract of 7/12 form to establish that the lands of the appellants were having potentiality and were having irrigation facility. From the evidence of the claimants, it also appears that the lands of the appellants were situated touching Ahmedabad- Delhi Highway. It has also come on record that the lands of the appellants were surrounded by banks, schools and the village was having all other facilities which the taluka level town is having. Even if such evidence of the claimants was not to be considered, then also, the claimants had produced on record the judgment rendered by the Reference Court in respect of the lands of village Rajpur, which is only at the distance of 1.5 km. from the land in question. In the case of Rajpur village, notification under Section 4 of the Act was issued on 26.4.1989 and notification under Section 6 was issued on 18.7.1989. It is found from the judgment in the case of the lands of village Rajpur that lands of individual farmers were small in area but in all, lands of 44 farmers came to be acquired and total land of Rajpur village was very big chunk of land. Learned Reference Court in the said case, however, considering the aspect of deduction of expenses towards development, decided to deduct 40% of the amount towards development charges after fixing the value of the land at Rs.120/- per Sq. Mtr. We find that the lands in the present case and the lands of Rajpur village were situated on two different sides of Siddhpur Municipal limits. Only difference is that one is on eastern side of Siddhpur and other one is on western side. Lands of both villages are near to above-stated Highway. As regards development of the land, we find that the same ratio of deduction of development charges would apply to both the lands. Therefore, we do not see any reason as to why the judgment in the previous case should not be relied on in the case of the appellants-claimants. Deduction of development charges depends upon the facts of each case though in the judgment relied on by learned advocate Mr.
Dipen Shah, the Hon'ble Supreme Court has laid down categories for deduction of the development charges, which can go upto 75% in a particular case. But, the same formula cannot be applied in all cases. In our case, as stated above, the instance of the land of village Rajpur could be said to be comparable instance and since in the said case, learned Reference Court has already decided to deduct 40% of the amount towards development charges, we would also like to follow the same formula. However, looking to the difference between the period of notifications under Section 4 of the Act issued in both the cases, we are of the opinion that in the present case, while adopting Rs.70/- per Sq. Mtr. arrived at by the learned Reference Court in previous judgment, we would deduct therefrom 10% for each year on the count that notification in present case under Section 4 of the Act was issued two years prior to the notification under Section 4 in the case of Rajpur village. Thus, deducting 20% from Rs.70/- per Sq. Mtr., it would come to Rs.56/- per Sq. Mtr. However, as pointed out by learned advocate Mr. Dipen Shah that the lands of Rajpur village were having better location and having better potentiality of development, land in the present case requires some more deduction, because it is on the western side of Siddhpur, we think it proper to further deduct Rs.6/- per Sq. Mtr. as the land is on western side of village Siddhpur. The Land Acquisition Officer has kept difference of Rs.4/- between the land touching highway and inside/ away from highway. Adopting the same formula, while arrive at Rs.50/- per Sq. Mtr. as value of the land, we provide that Rs.50/- per Sq. Mtr. will be for the lands touching or adjacent to highway and Rs.45/- per Sq. Mtr. for the lands inside/ away from the highway. Meaning thereby we arrive at Rs.50/- per Sq. Mtr. for the lands which are Highway touch and Rs.45/- per Sq. Mtr. for the lands which are inside Highway or away from Highway.
7. In view of the above, this appeal is partly allowed. Judgment and order of the Reference Court is quashed and set aside. We hold that the appellants-claimants are entitled to additional amount of compensation at the rate of Rs.28/- per Sq. Mtr. for Highway touch lands and Rs.27/- per Sq. Mtr. for the lands which are inside or away from the Highway. The appellants-claimants shall also be entitled to other statutory benefits available to them under the Act, like solatium, additional amount under Section 23(1-A) of the Act. We also order that appellants-claimants shall be entitled to interest at the rate of 9% per annum for one year from the date of taking possession of the land and at the rate of 15% per annum after expiry of one year till payment is made on the additional amount awarded by us, on solatium and on additional amount under Section 23(1-A) of the Act.
Record and Proceedings are ordered to be sent back.
Sd/-
(AKIL KURESHI, J.) omkar Sd/-
(C.L. SONI, J.)