State Of Gujarat & 1 ­ Defendants

1. The present First Appeals have been preferred by the appellant­original claimants being aggrieved and dissatisfied with the impugned judgment and award rendered in Land Reference Cases No.21 to 41 of 2003 (Main Land Acquisition Case No.32/2003) on the grounds mentioned in the memo of appeal inter alia that the Court below has erred in relying upon the award passed by the Land Acquisition Officer under Section 11 of the Land Acquisition Act dated 25.11.2002. It is contended that the Court below has erred in awarding Rs.16/­ per Sq.Mtrs. though the market price is Rs.50/­. It is, therefore, contended that the Court below has failed to appreciate the material and evidence on record. It is also contended that the Court below has failed to appreciate that the price list of the food grains given by the Agricultural Produce Market Committee, Palanpur, where the food grains were sold by the appellant­original claimants has not been taken into consideration. It is contended that the Court below ought to have considered the fertility and productivity of the land and on that basis, the compensation ought to have been considered on the ground that the agricultural land, which has been acquired, was fertile land and it had the potentiality and yield, which is relevant for the purpose of deciding the value of the land.

2. Heard learned counsel, Mr.Chetan Pandya for the appellant­original claimant and learned AGP Mr.Ronak Raval for the respondents.

3. Learned counsel, Mr.Chetan Pandya submitted that the land of the original claimants have been acquired for the purpose of Mukteshwar Jalashay Yojana and the canals under the said scheme, for which, notification under Sections 4 and 6 have been issued and ultimately, the Land Acquisition Officer declared his award under Section 11 of the Land Acquisition Act dated 25.11.2002. However, learned counsel, Mr.Pandya submitted that the Land Acquisition Officer has referred to the sale instances of other lands, which may not be a proper valuation. He submitted that for the purpose of stamp duty and various other reasons, the values in the document of the sale instances may be shown less than the actual price. He, therefore, submitted that the sale instances relied upon would not indicate that the correct market price. Learned counsel also submitted that the objections, which have been filed pursuant to the notice under Section 9(3)(4) have not been considered. Learned counsel, Mr.Pandya strenuously submitted that the land, which has been acquired, is fertile land with a very good yield with irrigation facilities and three different crops were taken in different season, which has also been stated in the revenue record. He, therefore, submitted that considering the yield and the fertility/productivity of the land, market price should have been decided at the rate of Rs.5.00 lacs per hectare. He submitted that as stated by the witnesses including the original claimants in the deposition at Exh.9, the land acquired for the Mukteshwar Jalashay Yojana are situated in near

which have also been acquired for the same purpose. He submitted that in respect of the land acquired of Village : Kodram, the judgment and award of the Reference Court has been produced in Land Reference Case No.13/2003 to 20/2003, which was carried before this Court by the Government by way of Appeal being First Appeal No.4012 to 4025 of 2008 and this Court has declined to interfere with the said award of the Reference Court, where the price of the land has been decided and the award at Rs.4.00 lacs per hectare i.e. Rs.40/­ per sq.mtrs. He submitted that First Appeal No.4697 to 4709 of 2008 filed by the State, which is produced at Exh.46 would clearly suggest that the market value cannot be less than Rs.4.00 lacs per hectare i.e. Rs.40/­ per sq.mtrs. Learned counsel, Mr.Pandya has submitted that the land is fertile and it is on the near vicinity of Village : Kodaram and Vasana, for which, the award has been made, which should also be made applicable.

4. Learned AGP Mr.Raval, however, stated that the submissions made by the learned counsel, Mr.Padnya with regard to the claim based on the compensation with regard to other village cannot be accepted. Learned counsel, Mr.Raval submitted that Village : Kodram has potential development and, therefore, considering such relevant aspect, the price has been decided whereas the land in question cannot be compared with the land of Village : Kodram. He submitted that the claimants have not produced any evidence with regard to the agricultural crops though it is claimed that three crops have been taken but there is no evidence on record. Similarly, he submitted that there is a reference to the sale of the agricultural produce in the Agricultural Produce Market Committee but no evidence has been produced. Therefore, he submitted that without any proof or any material and evidence, the compensation cannot be made on the same footing as Kodram. He submitted that the Reference Court has discussed in detailed about these aspects. He referred to the discussion of the Reference Court with regard to the sale instance in the nearby village including Vadgam and submitted that the claimants have accepted the award in respect of other village like Sedhani, Kodrama etc., at the rate of Rs.2.00 lacs per hector. He, therefore, submitted that the reliance cannot be placed only one aspect or one instance when there are other set of evidence including the sale instance of similar land in nearby vicinity. He submitted that there is industrial development around and, therefore, the potentiality of the development is required to be considered. He, therefore, submitted that the present Appeals may not be entertained.

5. In view of these rival submissions, it is required to be considered whether the impugned award of the Reference Court calls for any interference or not.

6. It is well accepted that while considering the aspect of compensation, the relevant criteria or the aspects like the nature of land, situation of land, development or the potential land or potential development of the land are required. The sale instances of the land in near vicinity and/or the award made in respect of the similar land in near vicinity is also required to be considered. As discussed above on one hand, learned counsel, Mr.Pandya has made submission emphasizing on the aspect of the productivity/yield of the land contending that the land was fertile and, therefore, the compensation should be on higher side at the rate of Rs.40.00 per sq.mtrs. He has also referred to the award in respect of Village : Kodram to justify the claim contending that the land in question is similarly situated like Village : Kodram and, therefore, these aspects have not been considered or appreciated. He has submitted that the sale instance of the land in near vicinity like Sendhani or Kodram do not reflect the correct price for various reasons. He has also submitted about First Appeal No.4012 to 4025 of 2008, where this Court had declined to interfere with the award of the Reference Court awarding Rs.40 per sq.mtrs. in respect of the land of Village : Kodram.

7. At the same time, there are sale instances in respect of the same village or other Village : Sendhani and Kodram and in the near vicinity, where the value is shown less. Assuming that the sale instance and the document suggesting the value of the land do not indicate the correct value or the market price but it certainly gives the indication with regard to the based in an around the area. Further, if the sale instances of the nearby village are available, it cannot be overlooked altogether. Moreover, there are specific instances where the claimants of the land in the same village or other village like Sendhani etc. have accepted the compensation at the rate of Rs.2.00 lacs per hectare i.e. Rs.20/­ per sq.mtrs. that is half then claim made by the learned counsel based on the land of Village : Kodram. Therefore, the moot question, which is required to be considered is whether the land in question is similarly situated or so identical that such claim can be based on the basis of the award in respect of the land of Village : Kodram. If the situation of the land is considered, it is not in dispute that the land of Village : Kodram has more potentiality for the development. Further, it is near to the main road or the national highway and there is other prospective of development, which is not the case in the land in question. Further, though the claimants in their evidence particularly deposition of witnesses including the claimant at Exh.9 itself has stated about three crops or fertility of the land etc., the evidence has not been placed on record. This Court while considering the present First Appeals had tried to verify the records and as could be seen from the records, Village Form No.7/12 and other records, which are produced, same clearly suggest that the land has been fertile, which gives the yield, however, the details are not coming forth as it should have been. For example, the crop is shown as Juvar­Bajara and also there is no evidence that whether it was having any irrigation facility. Therefore, even if it is assumed that the land was having a yield, it certainly has to be considered with reference to the nature of crop and other factors like irrigation facilities. The claim for other crops and sale before the Agricultural Produce Market Committee is also made and what was the nature of realization from sale different agricultural produce is also evident. Therefore, though the claim for the compensation at the rate of Rs.40/­ per sq.mtrs. may not be believed but as it is evident from the discussion at­least in the impugned award of the Reference Court itself that some of the claimants, whose lands have been acquired of Village : Sendhani and other nearby vicinity, have accepted the compensation at the rate of Rs.4.00 lacs i.e. Rs.40/­ per sq.mtrs is also required to be considered and the compensation cannot be less than even that amount. The judgments, which have been referred to as well as entire material and evidence on record would therefore justify the claim of the appellant­original claimants that at­ least compensation should have been at the rate of Rs.20/­ per sq.mtrs. (Rs.2.00 lacs per hectare) like other instances, where the claimants have accepted. Therefore, considering the aforesaid relevant aspects, material and evidence and also relevant criteria for the purpose of deciding the price of the land based on criteria like sale instance of nearby land, nature of land, situation of land, potential development in an around and also previous award or the compensation awarded in near vicinity, the Court is of the opinion that the judgment and award of the Reference Court cannot be sustained awarding Rs.16/­ per sq.mtrs. when it has discussed about other instances awarding Rs.2.00 lacs per hectare i.e. Rs.20/­. Therefore, the present first appeals deserve to be allowed.

8. In the circumstances, the impugned judgment and award rendered in Land Acquisition Reference No.21 to 41 of 2003 by the Learned Principal Senior Civil Judge, Palanpur dated 13.05.2011 is hereby modified to the extent that instead of Rs.1,60,000/­ per hectare i.e. Rs.16/­ per sq.mtrs., the original claimants are entitled to Rs.2,00,000/­ per hectare i.e. Rs.20/­ per sq.mtrs. for the acquired land along with interest at the rate of 10% from the date of notification and till realization. Accordingly, the present First Appeals stand allowed to the aforesaid extent.

9. The Record & Proceedings are ordered to be transmitted to the Reference Court at the earliest for further steps to be taken by the Reference Court.

Sd/­

(RAJESH H.SHUKLA, J.)

/patil