Gujarat High Court
Executive Engineer vs Patel Rugnathbhai Virchandbhai(Dec. ... on 15 October, 2019
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/784/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 784 of 2016
With
R/CROSS OBJECTION NO. 112 of 2016
In
FIRST APPEAL NO. 784 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
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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 or any
order made thereunder ?
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EXECUTIVE ENGINEER & 1 other(s)
Versus
PATEL RUGNATHBHAI VIRCHANDBHAI(DEC. THRU HIS HEIRS) & 4
other(s)
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Appearance:
MR MD RANA(694) for the Appellant(s) No. 2
MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1
MR ASIM PANDYA, SENIOR ADVOCATE with MR GAURAV VYAS(9855) for
the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5,2,3,4.1,4.2,4.3,4.4
GOVERNMENT PLEADER(1) for the Defendant(s) No. 5
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
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C/FA/784/2016 JUDGMENT
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
Date : 15/10/2019
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI)
1. The present first appeal is preferred by the appellants (original opponents) against the judgment and award dated 31.12.2015 passed in L.A.R. No.426 of 2006 by the learned Principal Senior Civil Judge, Patan.
2. The original applicants had filed the Cross Objections No.112 of 2016 in the first appeal in which the applicants had prayed for compensation of Rs.150/ per Sq.Mtr. as originally prayed for in L.A.R. No.426 of 2006.
3. By the said judgment and award, the Reference Court had granted additional compensation of Rs.86.75 ps per Sq.Mtr. to the original applicants. The appellants had acquired the land of the respondents bearing Survey No.503 admeasuring hectares 22414 Page 2 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT (22,414 Sq.Mtrs.) of Anavada Village, Taluka and District : Patan, for the purpose of erection of 66 KB SubStation and also for construction of staff colony. The competent authority granted Rs.6/ per Sq.Mtr. as compensation to the respondents. As against this, the respondents (original applicants) in this appeal filed L.A.R. No.426 of 2006 before the Court of Principal Senior Civil Judge, Patan and the said L.A.R. No.426 of 2006 was decided on 31.12.2015 by granting Rs.86.75 ps. as additional compensation to the original applicants.
4. Mr. Rituraj Meena, the learned counsel for the appellants has mainly submitted that the impugned judgment and award passed by the Reference Court is contrary to law and evidence on record. The learned Civil Judge has committed error in awarding additional compensation on higher side. The Reference Court has not taken into consideration the Page 3 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT oral evidence of the Executive Engineer in the right manner. The Reference Court has considered the previous order but the learned Judge should have taken into consideration and appreciated that the land situated in different villages and the land situated in Anavada Village is in interior part of the Patan city. The respondents herein have not proved by the cogent evidence that the land of the original applicants and land of Patan city were similarly situated. The learned Judge has not considered the size of the land acquired in this case as well as in the case of Patan city.
5. Mr. Meena has further submitted that future transaction cannot be taken into consideration while determining the price of the lands of the earlier notification. In this regard, he has cited decisions rendered in the case of Maya Devi (D) through L.Rs.
And Ors. vs. State of Haryana and Ors.,
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C/FA/784/2016 JUDGMENT
reported in AIR 2018 SC 645 and in the case of The General Manager, Oil and Natural Gas Corporation Ltd., vs. Rameshbhai Jivanbhai Patel and Ors., reported in JT 2008 (9) SC
480.
6. Now looking to the above referred judgments of Apex Court it appears that at the time of determining the market price of the land of particular village, the Hon'ble Supreme Court has held that the sale deed took place after the notification under Section 4 of the Act cannot be taken into consideration because whenever the notification under Section 4 is published then the higher price of the land acquired, the people may register the sale deed on a higher side and, therefore, the market price of land acquired may boost up. In this regard, the Hon'ble Apex Court has considered the sale deed registered afterwards the notification under Section 4 cannot be taken into consideration, but in Page 5 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT the present case the Reference Court has not taken into consideration the sale deed registered afterwards. But the Reference Court has taken into consideration the judgment of the Reference Court which has been rendered earlier then the impugned judgment and award. Therefore, these judgments are not helpful to the appellant.
7. Mr. Asim Pandya, the learned Senior Counsel appearing with Mr. Gaurav Vyas, the learned counsel for respondents No.1.1 to 1.5, 2, 3, and 4.1 to 4.5 has mainly submitted that the learned Reference Court has granted additional compensation of Rs.86.75 ps. per Sq.Mtr. but it is on the lower side. Moreover, the learned Reference Court has deducted 30% twice. From the comparable instances of the compensation produced on record, the compensation is not required to be deducted twice. He has submitted that the respondents herein are entitled for Page 6 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT compensation as per the comparable instance. The Reference Court has taken into consideration the oral evidence of the Executive Engineer in the right manner. The Reference Court has considered the previous order but should not have taken into consideration and appreciated that the land situated in the different villages and the Anavada village is situated in interior part of the Patan city, the respondents herein have not proved by leading cogent evidence that the land of the original applicants and lands as mentioned in the comparable instances of Patan city were similarly situated. The learned Judge has not considered the area of the land acquired in this case as well as in the case of those lands situated in Patan city.
8. Mr. Pandya has submitted that in view of the judgment of a Coordinate Bench of this Court dated 3.5.2019 in First Appeals Page 7 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT Nos.1066 to 1069 of 2015, the claimants are entitled to get compensation on the basis of the comparable instance of the acquisition of the land situated near Ranki Vav, Taluka :
Patan wherein the Coordinate Bench of this Court has awarded compensation at the rate of Rs.192.50 ps per Sq.Mtr. If the said amount is proportionately reduced considering the geographical dissimilarity, the amount is required to be reduced by 30% (Rs.192.50 -
30% = Rs.134.75 ps). Further, since there is a time gap of one year between the two notifications, at best 10% reduction can be applied for determining the market value of the lands of the claimants. Thus, the amount would come to Rs.121.275 per Sq.Mtr. This is one method of determining the market value of the claimant's land.
9. He has submitted that the second method of determining the market value of the claimant's land is on the basis of 10% Page 8 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT escalation in the price of the land in respect of the land acquired for the North Gujarat University on 23.5.1987. This formula is also an accepted formula applied to by the Apex Court in various judgments. For calculating the amount on the basis of this method, the base year of 1987 is required to be excluded. Therefore, for each year from 1988 upto the year 1995 when the lands of the claimants were acquired in the present case, 10% escalation will have to be added in the amount of Rs.100/ decided by the Apex Court in the acquisition of land for North Gujarat University. Considering the geographical distance between the land acquired for the North Gujarat University and the land of the claimant's, 30% deduction can be made which would come to Rs.70/ per Sq. Mtr. Applying 10% escalation in Rs.70/ from the year 1988 upto year 1995 (07 years), Rs.49/ will have to be added in Rs.70/. Therefore Rs.70/ plus Rs.49/ will come to Rs.119/ per Page 9 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT Sq.Mtr. In fact, the Apex Court has in ONGC's case reported in 2008 (14) SCC 745 has held that the escalation should not be a simple or flat escalation but it should be a compound escalation. Therefore, for the first year interest of Rs.10/ would be added in the principal amount, in the next year Rs.11/ in the third year Rs.12.1, so on and so forth. Thus, it would come to Rs.194/ per Sq. Mtr.
10. He has submitted that in either of the contingencies, the amount of Rs.92.75 ps awarded by the Reference Court to the claimant's is highly inadequate and cannot be termed as just compensation. In fact, the claimants deserve to be granted full compensation claimed by them, that is Rs.150/ per Sq.Mtr.
11. We have gone through the impugned judgment and award. The learned Reference Court has observed in para 22 and 23 as regards the calculation of the additional compensation of Page 10 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT Rs.86.75 ps. per sq.mt. The learned Reference Court has considered the comparable instance of L.A.R. No.830 to 833 of 2006 decided on 31.3.2010 by that Court, in which, the land of Patan city had been acquired. The notification under Section 4 of the Land Acquisition Act as regards the land of Anavada village bearing Revenue Survey No. 503 was published on 29.9.1995, whereas the notification under Section 4 of the Act as regards the land of L.A.R. Nos.830 to 833 of 2006 was published on 29.8.1996 and, therefore, there was time difference of about one year in the publication of the notifications under Section 4 of the Act. Moreover, it is observed that Anavada Village is hardly one and half kilometer away from the Patan city and, therefore, the comparable instance was considered upon the above mentioned L.A.R. of Patan city. The Reference Court had considered Rs.211/ as market value but the market value had been deducted by 30% Page 11 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT as the Anavada is rural area, whereas the Patan city has municipality and after calculation, Rs.147.50 was considered as market value and thereafter 10%, i.e. Rs.15/ was deducted as there is a time gap of one year between the publication of the two notifications under Section 4 of the said Act. Thereafter, the learned Reference Court in para23 has observed that the above mentioned grant of Rs.211/ as market value was challenged before the High Court. Moreover, in the L.A.R. No.830 to 833 of 2006 the Court has considered the judgment of the Apex Court in the case of North Gujarat University in which, the Apex Court has granted Rs.100/ as market value and, therefore, the learned Reference Court has considered the said fact and deducted 30% again and thereafter came to the market value of Rs.92.75 ps, out of which Rs.6/, which is originally granted by the competent Court, was deducted and, therefore, Rs.86.75 is Page 12 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT considered as additional compensation.
12. We have considered the facts and circumstances of the case, submissions of the learned counsel for the respective parties, the impugned judgment and award of the Reference Court as well as the judgment of a Coordinate Bench of this Court delivered on 3.5.2019 in First Appeals No.1066 to 1069 of 2015.
13. The Reference Court has considered the comparable instance of the nearby land acquired by the Government. The Reference Court has considered the instance of the lands in connection with which it rendered judgment and award in L.A.Rs. Nos.830 to 833 of 2006, as comparable instance in which, Rs.211/ was considered as market value and thereafter 30% were deducted twice; once considering the city area consisting of municipality and rural area and second time 30% were deducted considering the judgment of Page 13 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT Apex Court in the case of North Gujarat University. Mr. Rituraj Meena, the learned counsel has fairly accepted that 30% is not required to be deducted twice.
14. We have considered the judgment of a Coordinate Bench of this Court rendered in First Appeals Nos.1066 to 1069 of 2015, in the case of Superintendent Archaeologist vs. Patel Harilal Khodidas Patel and Ors. The decision in the above mentioned appeals arising from L.A.Rs. Nos.830 to 833 of 2006 has been taken into consideration by the learned Reference Court for deciding the market price as instance. In the above mentioned judgment, a Coordinate Bench of this Court in paragraphs 10 to 14 has observed thus ;
"10. Upon reappreciating the evidence in form of previous award at Exh.33, it deserves to be noted that in the said case, Section 4 notification was issued on 23.5.1987 for the public purpose of North Gujarat University, which relates to the lands situated at Village Samalpati. As the record indicates, Samalpati was a Village adjacent to Patan town when the lands were so acquired. As per the record, the Collector Page 14 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT determined the market value of those lands at Rs.1.50 per sq. mtr. The Reference Court, in the said case, determined the market value of the lands so acquired at Rs.109.30 per sq. mtr. for agricultural lands and Rs.184/ for nonagricultural lands. The record indicates that the price so determined by the Reference Court was subject matter of First Appeal no.2513 of 2002 and allied matters before this Court and this Court determined the market value of the lands so acquired at Rs.60/per sq. mtr. For agricultural lands and Rs.78/per sq. mtr. for nonagricultural lands. The judgment of this Court came to be challenged before the Hon'ble Apex Court and the Hon'ble Apex Court determined the market value of all types of land at Rs.100/per sq. mtr.
11. Even for the lands situated at Village Samalpati which were acquired for the campus of North Gujarat University, the Hon'ble Apex Court in the case of Patel Jathabhai Punajbhai Vs. North Gujarat University & Anr., 2015 (1) Scale 696, has observed thus in Paragraphs 3, 4, 6 and 8, which reads as under:
"3. It is not in dispute that around the land in question, development has already been made. Nearby to the land in question are colleges like Polytechnic, Arts, Science and Commerce. On the Eastern side of the land is the State Highway DeesaPatanChanasmaViramgam and on Southern side of the road is the road to enter Patan city. Railway station is also nearby. On the Western side in the nearby area are bus stand, T.V. relay centre, Telephone and telegraph head office.
4. In short, the land is surrounded by housing societies, indusreference zone, offices, college campus, roads, bus service, other transport facilities and marketing facilities. G.I.D.C. is hardly 500 meters away from the acquired land which forms part of Municipal area, hence, it was contended that the area is virtually a part of Patan Municipality for all purposes. The agricultural land possesses high potentiality to be used for residential and commerce purposes. The High Court has found Page 15 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT out that the area touches the extended limits of Patan city. Reliance has been placed on Ex.D87 and D88, the sale deeds of the area at 500 meters of distance where the land was sold on 10.12.1985 at the rate of Rs.239.20 per sq.m., after applying 10% increase on the date of notification under Section 4, the market value of nonagricultural land comes to Rs.275.08 per sq.m. and on the strength of sale deed Ex.D88, the price would come to Rs.184.04 per sq.m. It was also submitted that the highest consideration fetched in the exemplar sale deed ought to have been taken into consideration for determining the just compensation.
6. In the instant case, the Land Acquisition Officer, Reference Court as well as the High Court, in the peculiar facts and circumstances of the case, have determined the compensation on the basis of price of the land at per sq.m. The area in question is not within the municipal limits but adjacent to the extended limits of Patan municipality. The fact that various educational institutions, houses, railway station, bus stands and other offices are in close vicinity and the entire land has the potentiality like that of nonagricultural land on the date of notification under Section 4 of the Act, is not disputed.
8. In our view, we have to consider the sale instances available for the third group of matters. In the peculiar facts and circumstances, it would have been appropriate to deduct approximately 30% of the amount for development etc. Further deduction for determining the valuation of the land was not called for. In our opinion, it would be appropriate and just to award compensation at the rate of Rs.100/ per sq.m. for entire land."
12. As per the evidence on record, the Reference Court has therefore rightly considered the previous award at Exh.33 to be the comparable instance.
13. The facts indicate that in the case on hand, Page 16 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT Section 4 notification is dated 29.8.1996. The evidence also shows that the lands under acquisition in the case on hand are situated within Patan town around an ancient monument which is of a great historical importance. Even though the distance from the lands acquired for North Gujarat University being Exh.33 and the lands in the case on hand at a distance of more than 1 km. even as per the deposition of the Special Land Acquisition Officer at Exh.32, the lands under acquisition were lands of a town; whereas, the lands which were acquired for the North Gujarat University were situated at the adjoining Village and therefore, the contention raised by Ms. Trusha Patel, learned Central Government Counsel for the appellant as well as Mr. Tirthraj Pandya, learned Assistant Government Pleader for the Special Land Acquisition Officer to the effect that the geographical location, potentiality of development and fertility of lands are different, does not deserve any merit. On the contrary, the lands under acquisition have greater potentiality of development and are situated within the developed town. The appellant as well as the Special Land Acquisition Officer have not adduced any evidence, which can be relied upon and can be considered as a comparable instance and the Reference Court has therefore rightly relied upon the previous award at Exh.33 as comparable instance to arrive at the market value being just and adequate compensation. The record indicates that the gap between the date of Section 4 notification in the previous award at Exh.33 and the case on hand is 9 years and 3 months. Taking the base price of the lands acquired for the North Gujarat University at Rs.100/per sq. mtr., the respondents - land owners would be entitled to an increase in price by 92.5% and therefore, the market price of the lands under acquisition would come to Rs.192.50 per sq. mtr. Upon reappreciation of the evidence at Exhs.35 to 40 and 42, it is clear that the appellant as well as the Special Land Acquisition Officer have failed to prove the same.
14. It is no doubt true that the Reference Court has committed an error in calculating the effect of escalation based upon the market value as determined by the Hon'ble Apex Court in the case on hand acquired by the North Gujarat University Page 17 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT and as observed hereinabove, the market price of the lands under acquisition would come to Rs.192.50 per sq. mtr. The Reference Court, though has correctly determined the market value as determined by the Hon'ble Apex Court in the case of North Gujarat University, has committed an error in calculation only in determining the market value of the lands under acquisition in the case on hand at Rs.211/per sq. mtr. and as observed hereinabove, the correct market value of the lands under acquisition based upon the previous award at Exh.33 would come to Rs.192.50 per sq. mtr."
15. In view of above, the Coordinate Bench of this Court has considered the judgment of the Apex Court in the case of North Gujarat University and thereafter come to the conclusion that the market price of the land should be Rs.192.50 ps. per Sq.Mtr. The learned Reference Court has deducted 30% again considering the above mentioned decision of the Apex Court. But at the same time, the Coordinate Bench of this Court has considered the same decision of the Apex Court and has come to the conclusion after calculating that Rs.192.50 ps. is the market value.
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16. In view of the above mentioned criteria, the comparable instance is considered for the land of Ranki Vav and the market value fixed is Rs.192.50 ps. There is one year difference between the publication of the notifications under Section 4 of the Land Acquisition Act as the notification in the comparable instance of Ranki Vav is in the year 1996, whereas in the case on hand, the said notification is published in the year 1995 and, therefore, 10% i.e. Rs.19.25 ps. requires to be deducted and, therefore, it will come to Rs.173.25 ps., out of which, 30% is required to be deducted as considering the city and municipality area and rural area. Therefore, 30% of Rs.173.25 ps comes to Rs.51.97 ps rounded to Rs.52/ which is required to be deducted from Rs.173.25 ps. which will come to Rs.121.25 ps. as market value, out of which, originally Rs.6/ has been granted by the competent authority and, therefore, the original applicants are Page 19 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021 C/FA/784/2016 JUDGMENT entitled to additional compensation of Rs.115.25 ps. per Sq.Mtr.
17. In view of the above facts and circumstances of the case, the appeal filed by the appellants has no merit and deserves to be dismissed. Hence the same is dismissed.
18. The Cross Objections filed by the original applicants, respondents herein, is partly allowed and the original applicants - respondents herein, are entitled to additional compensation of Rs.115.25 ps. per Sq.Mtr., in addition to Rs.6/ per Sq.Mtr. granted by the competent authority with available legal benefits. The Cross Objections is thus, disposed of.
(J. B. PARDIWALA, J) (VIRESHKUMAR B. MAYANI, J) K.K. SAIYED Page 20 of 20 Downloaded on : Sat Feb 20 06:02:32 IST 2021