Gujarat High Court
State vs Babubhai on 23 August, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
FA/4447/1999 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No.4447 of 1999
To
FIRST
APPEAL No.4450 of 1999
With
CIVIL
APPLICATION No.12266 of 2001
In
CROSS OBJECTION (STAMP NUMBER) No.145 of 2001
With
CIVIL
APPLICATION No.12267 of 2001
In
CROSS OBJECTION (STAMP NUMBER) No.148 of 2001
With
CIVIL
APPLICATION No.13061 of 2001
In
FIRST APPEAL No.4450 of 1999
With
CIVIL
APPLICATION No.431 of 2002
In
FIRST APPEAL No.4449 of 1999
With
CIVIL
APPLICATION No.1193 of 2002
In
FIRST APPEAL No.4449 of 1999
With
CIVIL
APPLICATION No.1280 of 2002
In
FIRST APPEAL No.4448 of 1999
With
CIVIL
APPLICATION No.2046 of 2001
In
FIRST APPEAL No.4447 of 1999
To
CIVIL
APPLICATION No.2049 of 2001
With
CROSS
OBJECTION (STAMP NUMBER) No.145 of 2001
In
FIRST APPEAL No.4447 of 1999
With
CIVIL
APPLICATION No.11155 of 2001
In
FIRST APPEAL No.4447 of 1999
To
CIVIL
APPLICATION No.11158 of 2001
With
CIVIL
APPLICATION No.11173 of 2001
In
FIRST APPEAL No.4447 of 1999
With
CIVIL
APPLICATION No.11768 of 2001
In
CIVIL APPLICATION No.11155 of 2001
To
CIVIL
APPLICATION No.11771 of 2001
With
CIVIL
APPLICATION No.430 of 2002
In
FIRST APPEAL No.4447 of 1999
With
CROSS
OBJECTION (STAMP NUMBER) No.148 of 2001
In
FIRST APPEAL No.4449 of 1999
With
CIVIL
APPLICATION No.11172 of 2001
In
FIRST APPEAL No.4449 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL Sd/-
HONOURABLE
MR.JUSTICE
R.M.CHHAYA Sd/-
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2
To
be referred to the Reporter or not ?
NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5
Whether
it is to be circulated to the civil judge ?
NO
=====================================================
STATE
OF GUJARAT & 2 - Appellant(s)
Versus
BABUBHAI
DUNGARBHAI GAJERA & 1 - Defendant(s)
=====================================================
Appearance
:
MR LR PUJARI,
AGP
for Appellant(s) : 1 - 3.
MR
GAURANG H BHATT for Defendant(s) : 1 -
2.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
And
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 23/08/2011
COMMON
CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE R.M.CHHAYA) The present appeals are filed under section 54 of the Land Acquisition Act, 1894 (hereinafter to be referred to as 'the Act') against common judgment and award passed under section 18 of the Act by learned Assistant Judge, Amreli dated 01.01.1999 in Land Reference Case Nos.106/94, 107/94, 108/94 and 110/94. The lands situated at Amreli have been acquired for the public purpose of "Thebi Irrigation Project" by the State of Gujarat. The notification, as contemplated under section 4 of the Act, was published on 13.09.1990 and section 6 notification was published on 01.08.1991. The Land Acquisition Officer, after following the procedure as contemplated under the Act, made and declared award under section 11 (1) of the Act on 14.09.1993. The Land Acquisition Officer under the said award, after considering the sale instances and evidence adduced before him awarded compensation of Rs.12/sq.mtr. for non-irrigated lands and Rs.20/sq.mtr. for irrigated lands and Rs.40/sq.mtr. for non-agricultural lands. As the original claimants were dissatisfied with the award, they raised the disputes as contemplated under section 18 of the Act, which were referred to District Court, Amreli and the same came to be registered as Land Reference Case Nos.106/94, 107/94, 108/94 and 110/94. The Reference Court passed an order of consolidation of all the references, considering Land Reference Case No.106/1994 as main reference. The Reference Court, after hearing the parties concerned, vide judgment and award dated 01.01.1999 allowed the said references and ordered to pay additional compensation of Rs.160/sq.mtr. in First Appeal No.4448 of 1999 (arising out of Land Reference Case No.107 of 1994) and Rs.240/sq.mtr. in First Appeal Nos.4447/1999, 4449/1999 and 4450/1999 (arising out of Land Reference Case Nos.106/1994, 108/1994 and 110/1994) to the claimants. Being aggrieved by the same, the present appeals as well as civil applications and cross-objections are preferred.
The relevant factual aspect relating to the aforesaid land references are enumerated as under:
Sr. No. Land Ref.
Case No. Survey No. of Land acquired Village Status of land
01. 106/94
126, 127 Amreli Agricultural
02. 107/94 50, 46 Amreli Agricultural
03. 108/94 47 Amreli Agricultural
04. 110/94 49 Amreli Agricultural At the outset, it may be noted that for the very public purpose i.e. Thebi Irrigation Project, the appellants have acquired large chunk of lands falling within the catchment area of the said scheme by different notifications, which were subject matter of appeals before this Court and ultimately also before the Apex Court. The Apex Court in the case of Deputy Collector, Land Acquisition, Gujarat & Anr. Vs. Madhubhai Gobarbhai & Anr., (2009) 15 SCC 125 has determined the market value of the lands of village Baxipur, Giriya as well as Amreli.
Heard Mr.L.R.Pujari, learned Assistant Government Pleader for the appellants, and Mr.Gaurang Bhatt, learned counsel for the respondents-original claimants.
Mr.Pujari, relying upon the judgment of the Apex Court in the case of Deputy Collector, Land Acquisition, Gujarat & Anr. (supra), contended that the lands under acquisition would fall under Group-II, as per the aforesaid judgment and, therefore, the respondents-original claimants would be entitled to compensation of Rs.125/sq.mtr. Mr.Pujari further relied upon a sketch, which was produced at the time of hearing in order to contend that all survey numbers would fall within Group-II. It was further submitted that as per the judgment of the Apex Court the lands, which are situated at Amreli would fall under Group-II as the same are away from Amreli town.
As against this, learned counsel Mr.Bhatt appearing on behalf of the respondents-original claimants pointed out that as per the judgment of Apex Court in the case of Deputy Collector, Land Acquisition, Gujarat & Anr. (supra), the Apex Court has considered the geographical location of the lands under acquisition. It was further submitted that the Apex Court has, while dividing the lands under acquisition in three groups, has held in Paragraph Nos.4 and 5 that the lands which fall within Western side of River Thebi fall within Group-I, whereas lands which are situated in Eastern side of River Thebi i.e. of Village Giriya would fall within Group-II and lands of Amreli which are in the developed area would fall within Group-III. It was, therefore, submitted that the lands in question of the original claimants would fall under Group-III, as per the aforesaid judgment of the Apex Court.
We have examined the copies of the pleadings relied upon and submitted by both sides.
On perusal of map, we find that all the land under acquisition are situated on the Eastern side of River Thebi and are situated in a developed area just adjoining to aerodrome in Amreli town.
The Reference Court has relied upon the previous award passed by the Reference Court in Land Reference Case No.6 of 1996 (Exh.19) relating to the acquisition for the same purpose in which case section 4 notification was published on 15.03.1990 and has fixed the market value by awarding the compensation of Rs.160/sq.mtr. for land bearing Survey Nos.50 and 46 treating it to be non-agricultural lands and Rs.240/sq. mtr. for land bearing Survey Nos.47, 49, 126 and 127 treating it to be non-agricultural lands even though they were agricultural lands.
The Apex Court in the case of Deputy Collector, Land Acquisition, Gujarat & Anr. (supra) has observed thus:
"2.
The State of Gujarat issued diverse notifications for acquisition of a huge tract of lands for construction of a dam over a river known as `Thebi'. The lands sought to be acquired were spread over in three villages, namely, Amreli, Baxipur and Giriya. Whereas villages Amreli and Baxipur are situated on the western side of river and within the municipal limit of the town of Amerli; village Giriya is on the eastern bank thereof and outside the municipal limit of the said town Amreli. Amreli is the headquarters of the District Amreli. It is a well developed town. A National Highway known as "Amreli - Chittal Road" passes through the town of Amreli. The residents of the town enjoy the facilities of transportation, hospitals, schools, colleges, telephone, etc.
3. It is, however, admitted that the entire development has taken place on the eastern bank of the river and not on the western bank. The villages situate on the western bank, however, admittedly are wholly undeveloped. The lands under acquisition are agricultural lands. The land upon acquisition were to be submerged under water.
4. The Land Acquisition Officer made three different awards for three different villages. For agricultural lands situate in village Baxipur, which are the subject matters of judgment and order dated 23.02.1998 passed in F.A. No.3119/1997 and F.A. No.3120/1997 and judgment and order dated 4.5.1999 passed in F.A. Nos.6184-6203/1995 and other connected appeals, compensation was awarded at the rate of Rs.75/- per square meter. Out of 350 land owners, however, only 156 land owners filed applications for reference before the Collector in terms of Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as, "the said Act"). The Reference Court awarded compensation calculating the market value thereof at the rate of Rs. 75/- per square meter in respect of lands situate in Baxipur village (western side of river Thebi), Giriya village (eastern side of river Thebi) and Amreli village (western side of river Thebi).
5. So far as the lands situate within the Amreli town, which is within the municipal area and situate on the eastern side of the river comprising of residential and commercial area which was developed since 1984, are concerned; the Land Acquisition Officer awarded compensation at the rate of Rs.50/- per square meter in respect of agricultural lands, but the Reference Court and the High Court awarded compensation at the rate of Rs.160/- per square meter of land. For the same area in respect of non-agricultural lands, the Land Acquisition Officer awarded compensation at the rate of Rs.150/- per square meter whereas the Reference Court as also the High Court awarded compensation at the rate of Rs.240/- per square meter.
FOR GROUP-I
34. The High Court, however, proceeded on the basis that although the acquired lands were situated on one side of the river, in view of the fact that entire acquired land was to be submerged, no justification can be made in regard to the nature of the land. The High Court held (in our opinion wrongly) that distance of a few kilo meters from the Amreli town would not matter. The High Court furthermore opined that the lands in village Baxipur were also fertile and thus no discrimination can be made. For the said purpose the High Court relied upon the Awards made in the earlier case exhibited as Exhibits 68 and 73 in terms whereof compensation @ Rs.75/- per sq. meter was paid.
35. The variation in the price of the land within a few years is a matter of great significance. It is true that no single factor would be decisive for the purpose of arriving at the market value of the land. But in a case of this nature a holistic view is required to be taken.
36. It is, in our opinion, wholly improper to forget the distinction between the agricultural land and the non-agricultural land. Even in the same area, value of the agricultural land and the non-agricultural land may be considerably different. For the said purpose, existence of the road; railway station; airport; schools; colleges; hospitals etc. play an important role.
37. It is not a case where the developed area and the undeveloped area or for that matter non agricultural and agricultural lands are merely divided by a road. It is also not a case where the entire area is known and treated to be one and the same, although a part of it may be governed by the Panchyat and the other part comes within a municipal area.
38. It stands admitted that the acquired lands for all intent and purport is divided into two parts. The eastern part and only a small part of the western side is within the municipal area and the other, consisting of agricultural lands, is outside the municipal area. It furthermore stands admitted that the town has developed only on eastern side of the river and agricultural lands are situated on the western side in which there is even no residential house.
48. It is on the aforementioned factual backdrop and legal principles governing grant of compensation, the market value of the lands situate within Group-1 is required to be determined. The lands are purely agricultural lands. There were no buildings; there was no residential use; there was no factory. No development had taken place nor was any development expected in immediate future. The lands were acquired only for the purpose of submergence. It had thus even no building potentiality. We, therefore, are of the opinion that in view of the materials brought on record, the valuation of the land should be determined at Rs.50/- (Rupees Fifty only) per square meter.
FOR GROUP-II
82. So far as deeds of sale pertaining to the years 1988 and 1989 are concerned, the same were executed more than three years prior to the date of acquisition. However, in respect of the deeds of sale pertaining to Survey No. 89, in view of the under-valuation of the lands sold, the Collector fixed the same at the rate of Rs.125/- per sq. mtr. Furthermore, the Collector himself has fixed the premium of Rs.300/- per sq. mtr. for conversion from agricultural land to non-agricultural land. Although the same by itself would not be a safe criterion for determining the market value, we are of the opinion that both of them may form the basis for arriving at a reasonable conclusion.
83. For the aforementioned purpose, this Court must keep in mind that the distance of the lands sought to be acquired apart from other factors from the Highway also plays an important role. Evidence has been brought on record to show that some lands, which are the subject matter of the sale deeds on which reliance has been placed by the claimants, are situated at a distance of 1.5 to 4 kms from the Highway. In that view of the matter, it would, in our opinion, be safe to arrive at the market value as on the date of acquisition for the non-agricultural lands at Rs.250/- per sq. mtr. So far as the agricultural lands are concerned, even if they had the potentiality of being converted into a non-agricultural lands as on the date of notification, they were agricultural lands albeit in a developed area. The valuation thereof may be determined at 50% of the developed land, that is, at Rs. 125/- per sq. mtr.
FOR GROUP-III
96. Keeping in view the ratio laid down in the aforementioned decisions as also the materials placed on record, we are of the opinion that the amount of compensation for the lands acquired in this matter arrived at by the High Court, that is, Rs.240/- per sq. mtr. for non-agricultural land and Rs.160/- sq. mtr for agricultural land does not warrant any interference on our part. The High Court, in this regard, has adopted the correct approach particularly in view of the fact that the lands in question are not only situated within a developed area but being situated near Aerodrome, Schools, Hospitals, etc. the market value thereof could not have been determined at a lesser rate.
97. Now we shall deal with the question of the amount payable for acquisition of 21 godowns and the land on which they stand in Survey No.43/5A-1. Out of the total area of 4250 mtrs of land, 2972 sq. mtrs. is agricultural land and 1278 sq. mtrs. is non-agricultural land on which the godowns have been constructed. Commercial complexes were constructed on it in the year 1984. Respondents have constructed 6 big godowns and 15 small godowns. The amount of rent of the godowns has been brought on record. Respondents have claimed compensation under various Heads, namely, price of the land, loss suffered due to recovery of rent for 2 years of godowns, loss for construction for deep-well, watchman quarter, etc."
The Apex Court has considered different awards passed for acquisition of lands for the very public purpose i.e. "Thebi Irrigation Project" pertaining to the lands of Village Baxipur, Village Giriya as well as Amreli. The Apex Court has considered the geographical location of the lands so acquired for the determination of its market value. The Apex Court while determining the market value, has considered that the lands situated on the Western side of river Thebi are wholly undeveloped and are agricultural lands and, therefore, treating the lands situated on the Western side of river Thebi of village Baxipur as well as Giriya have been grouped as Group-I and has determined the market value of such lands at Rs.50/sq.mtr. Similarly, the Apex Court has considered the geographical location of the lands of Village Giriya situated on the Eastern side of river Thebi and held that the lands of Village Giriya situated on Western side of river Thebi are developed lands with infrastructural facilities like highway are more valuable lands and has considered that there are non-agricultural as well as agricultural lands but in a developed area and has grouped them as Group-II and has fixed the market value of such lands falling under Group-II at Rs.125/sq.mtr. for agricultural lands and Rs.250/sq.mtr. for non-agricultural lands. Similarly, considering the geographical location of lands falling within Amreli and taking into consideration the fact that the lands situated within Amreli are within the municipal limit hence, situated in the Eastern side comprising of residential and commercial area which are already developed since 1984 are grouped as lands falling within Group-III and as been determined the market value of those lands at Rs.160/sq.mtr. for agricultural lands and Rs.240/sq.mtr. for non-agricultural lands.
On examining the lands under acquisition in these appeals, more particularly the map, we find that lands under acquisition are situated in Amreli adjacent to aerodrome and other residential as well as commercial properties.
Hence, keeping in view the ratio laid down by the Apex Court in the case of Deputy Collector, Land Acquisition, Gujarat & Anr. (supra), lands under acquisition would fall under Group-III as the same are situated on the Eastern side of river Thebi in Amreli.
We have also noted that in the judgment of Deputy Collector, Land Acquisition, Gujarat & Anr. (supra) while fixing the market value of the lands falling under Group-III at Rs.160/sq.mtr., the Apex Court had considered the land acquisition proceedings wherein section 4 notifications were published varying from 08.08.1990 to 05.06.1993 and, therefore, in the case under consideration the claimants shall be entitled to the same amount of compensation as awarded by the Apex Court.
Consequently, therefore, as far as the respondents-original claimants of First Appeal No.4448 of 1999 are concerned, the appeal is dismissed.
As far as rest of the appeals being First Appeal Nos.4447/1999, 4449/1999 and 4450/1999 are concerned, the same are partly allowed. The original claimants in those appeals would be entitled to compensation of Rs.160/sq. mtr. along with other statutory benefits as awarded by the Reference under Sections 23(1A), 23(2) and 28 of the Act and the same are not interfered with, save and except to the extent that on account of reduction of principal amount of compensation such amount shall get proportionally reduced. Hence, the impugned judgment and award of the Reference Court shall stand modified accordingly.
In view of the above, the civil applications and cross-objections filed by the respondents-original claimants in these appeals are disposed of.
In the facts and circumstances of the case, there shall be no order as to costs. Registry to place a copy of this judgment in all the connected matters.
Sd/-
[JAYANT PATEL,J] Sd/-
[ R.M.CHHAYA, J] After the pronouncement of the judgment, the learned counsel for the original claimants prays that the authorities may be directed to deposit the amount of compensation, if not deposited fully. Hence, considering the facts and circumstances, the amount of compensation, if not deposited with the Reference Court, shall be deposited within a period of 08 (eight) weeks from the receipt of the judgment of this court.
Sd/-
[JAYANT PATEL,J] Sd/-
[ R.M.CHHAYA, J] *** Bhavesh* Top