IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2338 of 1998 With CROSS OBJECTION No. 277 of 1999 In FIRST APPEAL No. 2338 of 1998 For Approval and Signature:
HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= STATE OF GUJARAT & 2 - Appellant(s) Versus GOVARDHANKUMAR KRISHNAKUMAR- SINHJI - Defendant(s) ========================================================= Appearance :
GOVERNMENT PLEADER for Appellant(s) : 1 - 3. None for Defendant(s) : 1, NANAVATI & NANAVATI for Defendant(s) : 1.2.1,1.2.2 ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE C.L. SONI Date : 13/08/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE C.L. SONI)
1. The first appeal is at the instance of State and its authorities against the judgment and award dated 29.11.1997 passed by learned Extra Assistant judge, Panchmahal at Godhra(herein after referred to as the 'Reference Court')in L.A.R Case No. 270 of 1988, whereby the Reference Court partly allowed the reference of the respondents-claimants and granted additional compensation to the claimants at the rate of Rs.
163 per Sq. Meter. The Reference Court also ordered the appellants to pay additional amount at the rate of 12 per cent per annum on the market value of the land under Section 23(1-A), solatium under Section 23(2) and interest under Section 28 of the Land Acquistion Act 1894 (for short the 'Act') at the rate of 9 Per Annum for the first year and at the rate of 15 per cent per annum for subsequent period till realization. The claimants since dissatisfied with the additional compensation, have filed Cross Objection which are heard and decided with the appeal.
2. Facts, in brief, as can be noticed from the record of the case are as under.
2.1 The lands of the claimants situated in Santrampur town, were sought to be acquired for the purpose of project of 'Kadana Reservoir'. Notification under Section 4 of the Act was published on 03.05.1984. Notification under Section 6 of the Act was published on 03.01.1985. Corrigendum to notification under Section 6 of the Act was published on 23.07.1987. The claimants had demanded compensation at the rate of 250 Per Sq. Meter before the Land Acquisition Officer. However, Land Acquisition officer declared award for the compensation at the rate of Rs. 30,000/- Per Hector(Rs.3 Per Sq. Meter) in the Land Acquisition Case No. 20 of 1983. The award was declared on 03.11.1987.
2.2. Since, the claimants were not satisfied with the amount of compensation by the Land Acquisition officer, they made application under Section 18 of the Act to the Land Acquisition officer for referring the dispute to the Reference Court. Before the Reference Court, the reference of the claimants was registered as L.A.R. Case No. 2718/1988. Before the reference Court, the order of Deputy Collector for holding the land as non agricultural land was produced and it was contended that the issue about the land in question being non-agricultural land was finally decided and considering the land as non-agricultural land, the compensation should be awarded to the claimants. The claimants also adduced evidence of sale instances of other lands. The claimants also relied on earlier judgment and award at Exhibit 53 which was in respect of adjoining land to the lands acquired, wherein the market value was determined at Rs. 225 per Sq. Meter. The Reference Court, however, did not consider the said judgment and award on the ground that the appeal against the said award was pending before this Court, and the judgment and award at Exhibit 53 was not final and conclusive.
2.3. The reference Court considered the sale transaction at Exhibit 17, which was of the year 1977 wherein sale price was Rs.144.00 Per Sq. Meter. In 1979, the land in this area was sold at Rs. 200.00 Per Sq. Meter, the said land was then sold at Rs. 30,000.00/- in the year 1985 at the rate of RS. 250.00 per Sq. Meter. Reference Court, therefore, observed that the land situated in the area would have fetched at least Rs. 250.00 per Sq. Meter but the Reference Court took into consideration the necessity of other development charges and ultimately, decided to deduct 1/3rd from the above said price of Rs. 250.00 Per Sq. Meter and assessed Rs.
166.00 per Sq. Meter as the market value of the land.
3. We have heard learned advocates for the parties.
4. Learned AGP Ms. Moxa Thakkar has sumitted that the Reference Court has committed grave error in considering and relying on the sale transaction exhibit 17 which was not at all a comparable sale instance for the purpose of compensation for the land acquired. She would submit that there were other comparable sale instances available on record as per which the sale price was around Rs 143.00 per Sq. Meter and if the deduction against the development charges was to be applied, the market value for the land was required to be assessed at Rs. 100.00 or 110.00 per Sq. Meter. She further submitted that even if price was to be considered at Rs. 250.00 per Sq. Meter, the Reference Court has also committed an error in deducting only 1/3rd towards development charges. Considering the location of the land, more charges were required to be deducted for the development of the land and therefore, as per her submission, at least 50 per cent was required to be deducted from the price of the land at Rs. 250.00 per Sq. Meter. She would further submit that the Reference Court having already found that comparing to other lands of which the sale instances were cited, the lands acquired were not of equal quality but was uneven and slopy land and to make comparable land, huge amount was required to be spent. She thus, submitted that the market value assessed by the Reference Court at Rs. 166.00 Per Sq. Meter was on higher side. She, therefore, urged that the award passed by the Reference Court is required to be interfered with and the market value assessed by the Reference Court is required to be reduced.
5. In reply, learned advocate Mr. Saurin Shah for Nanavati and Nanavati, learned Advocates for the claimants has submitted that the lands acquired were having great potentiality for future development. In fact, the probable use and utility of the land was lucrative because the surrounding lands in proximity were already put to great development for residence as well as for commercial purpose. Mr. Shah would submit that the Reference Court has committed grave error in discarding the evidence of earlier judgment and award at Exhibit 53 on the ground that the appeal against the said judgment was pending before this Court. Mr. Shah pointed out that since the lands covered under the award at Exhibit 53 were adjacent and proximate to the lands acquired, the Reference Court could not have discarded the best available evidence on the ground that the appeal was pending before this Court. Mr. Shah further pointed out that the lands in respect of which the sale instances were relied were from Godhra- Bhagol area, whereas the lands under acquisition and covered under Exhibit 53 both are near to Station and main market and located in the same area. Mr. Shah drew the attention of the Court to Exhibit 44, which is the Map and pointed out that the lands acquired are in close proximity and touching the boundaries of lands, which were covered under Exhibit 53. Mr.Shah thus, submitted that the evidence at Exhibit 53 was the best reliable evidence for the purpose of assessing the market value of the land acquired. Mr. Shah further submitted that it was at the time of deciding the reference appeal against the award at Exhibit 53 was pending but thereafter the said award has reached to its finality by the decision of Hon'ble Supreme Court in the case of Viluben Jhaleja Contractor Vs. State of Gujarat reported in 2005(4) SCC, Page 789. He produced on record the copy of the said judgment and pointed out that the Hon'ble Supreme Court has fixed the market value of the lands in the said case at Rs.
160.00 Per Sq. Meter for the large plots and at Rs. 175 Per Sq. Meter for the small plots. He further submitted that in the case before the Hon'ble Supreme Court, the notification under section 4 of the Act was issued on 15.07.1979 whereas the notification under Section 4 of the Act in the present case was issued on 03.05.1984. Mr. Shah, therefore, urged that since notification in earlier case was 5 years prior in time to the notification in the present case, the market value of the land acquired in the present case is required to be fixed by giving increase at the rate of 10 per cent every year by way of appreciation in the price of the land and compensation on this basis, is required to be awarded to the claimants.
6. We have perused the record of the case and we have also closely seen the Map at Exhibit 44. We find from the Map that land in question bearing City Survey No. 847 is part of Revenue Survey No.
373. The other City Survey Numbers which were covered under Exhibit 53 were also part of Revenue Survey No.373, therefore, the lands under acquisition as also the lands covered under Exhibit 53 were from Revenue Survey No. 373 and their boundaries are common. We also find from the evidence of witness that like the lands which were acquired earlier and lands under acquisition were also having great potentiality for future development. Therefore, the best comparable and available evidence before the Reference Court was the earlier award at Exhibit 53. The Reference Court could not have discarded such evidence on the ground that the appeal was pending against the award before this Court. The sale instances considered by the Reference Court could not have been relied by it when the evidence of earlier award at Exhibit 53 was very much available.
7. Now when, the award at Exhibit 53 has reached to finality by virtue of decision of Hon'ble Supreme Court, we are of the opinion that the evidence of award at Exhibit 53 can be considered for the purpose of assessing the market value of the land in the present case.
8. As pointed out by learned advocate Mr. Shah, since there is time gap of about 5 years between two notifications as stated above, the market value will be required to be assessed by giving 10 per cent increase every year by way of appreciation in the market value fixed by Hon'ble Supreme Court at Rs. 160 Per Sq. Meter for the large plots in the case of Viluben Jhaleja Contractor(Supra). We, accordingly take the base figure at Rs. 160 Per Sq. Meter and give increase of 10 per cent every year for 5 years to assess the market value of the land acquired in the present case. The market value would thus come to Rs. 240.00 per Sq. Meter. We thus assess and fix the market value in the present case at Rs.
240.00 per Sq. Meter. In view of the above, the appeal, is required to be dismissed and the Cross Objections filed by the claimants are required to be partly allowed. The Reference Court has already awarded additional compensation of Rs.
163.00 per Sq. Meter. Deducting the additional compensation awarded by the Reference Court of Rs.163.00 per Sq. Meter and also deducting the amount awarded by the Land Acquisition Officer of Rs. 3.00 per Sq. Meter from Rs. 240 per Sq. Meter, the claimants will now be entitled to additional amount of compensation of Rs.74.00 per Sq. Meter. On the additional amount of compensation, the claimants shall be entitled to increase at the rate of 12 Per cent under Section 23(1-A), and solatium at the rate of 30 per cent under Section 23(2)of the Act. The claimants shall also entitled to interest under Section 28 of the Act at the rate of 9 per cent for the first year and at the rate of 15 per cent per annum for subsequent years till the amount is paid or deposited in the Court whichever is earlier. However, such interest shall be available as per the decision of Hon'ble Supreme Court in the case of Sunder Vs. Union of India, reported in 2004, 7 SCC Page 211 and Gurpreet Singh Vs. Union of India, reported in 2006 8 SCC Page 457 with effect from 19.09.2001 till the same is either paid or deposited in the Court whichever is earlier.
9. In the result, the appeal is dismissed and the Cross Objections are partly allowed. The claimants are held entitled for additional amount of compensation at the rate of Rs. 74 Per Sq. Meter.
10. The claimants are also held entitled to increase on the additional amount of compensation at the rate of 12 per cent per annum under Section 23(1-A) and solatium at the rate of 30 per cent under Section 23(2) of the Act.
11. On the additional amount of compensation, the claimants shall be entitled to interest at the rate of 9 per cent for the first year from the date of taking of possession and at the rate of 15 per cent per annum for the subsequent years till it is paid or deposited in the Court whichever is earlier. So far as, the interest on the increased amount under Section 23(1-A) of the Act and on solatium is concerned, the claimants shall be entitled to interest at the rate of 9 per cent for the first year w.e.f 19.09.2001 and at the rate of 15 per cent per annum for subsequent years till it is paid or deposited in the Court whichever is earlier. The judgment and award of the Reference Court shall stand modified and the decree shall be drawn accordingly.
(Jayant Patel, J.) Braj.
(C.L. Soni, J.)