Gujarat High Court
Gujarat Water Supply & Sewera-Ge Board vs Heirs Of Kantilal Bhikhabhai Patel & 2 on 3 August, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.B.Shah
C/FA/260/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 260 of 2010
With
CROSS OBJECTION NO. 116 of 2010
In
FIRST APPEAL NO. 260 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
================================================================
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 ?
================================================================
GUJARAT WATER SUPPLY & SEWERA-GE BOARD....Appellant(s)
Versus
HEIRS OF KANTILAL BHIKHABHAI PATEL & 2....Defendant(s)
================================================================
Appearance:
MR HS MUNSHAW, ADVOCATE for the Appellant(s) No. 1
MR DHAWAN JAYSWAL, ASST. GOVERNMENT PLEADER for the
Defendant(s) No. 3
MR KM SHETH, ADVOCATE for the Defendant(s) No. 1.1 - 1.6 , 2
Page 1 of 10
HC-NIC Page 1 of 10 Created On Wed Aug 05 01:35:21 IST 2015
C/FA/260/2010 JUDGMENT
================================================================
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 03/08/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) This appeal as well as crossobjections are filed against the judgment and award dated 06.04.2009 passed by the reference Court in L.A.R. No. 535 of 2008 whereby, the reference case was partly allowed and the original claimants were awarded additional compensation @ Rs.63/ per sq. metre for the acquired lands, over and above Rs.24/ per sq. metre awarded by the Land Acquisition Officer, along with interest and other statutory benefits.
2. The facts in brief are that the land bearing Revenue Survey No.1935 situated in Village Kadi, Taluka : Kadi, District Mahesana, was sought to be acquired by the State Government for the purpose of appellantBoard. The Notification u/s.4 of the Land Acquisition Act, 1894 (for short, "the Act") was published on 06.04.2004 and Declaration u/s.6 of the Act was made on 10.06.2005. The Land Acquisition Officer passed award u/s.11 of the Act on Page 2 of 10 HC-NIC Page 2 of 10 Created On Wed Aug 05 01:35:21 IST 2015 C/FA/260/2010 JUDGMENT 30.10.2006 determining compensation @ Rs.24/ per sq. metre for the acquired lands.
3. Being aggrieved by the award, the claimants raised dispute u/s.18 of the Act, which, ultimately, culminated into reference before the Court below. After considering the evidence on record, the reference Court partly allowed the reference as aforesaid. Hence, this appeal and cross objections.
4. Mr. H.S. Munshaw, learned counsel appearing for the acquiring body, contended that the reference Court has committed serious error in relying upon the award passed in LAR No.1205/1998 (Exh.32) and it ought to have relied upon the awards passed in LAR Nos.85/1989 and 07/2002 (Exhs. 28 & 29). He, therefore, submitted that the compensation awarded by the reference Court deserves to be reduced appropriately.
5. Mr. K.M. Sheth, learned counsel for the claimants, placed reliance upon a decision of this Court passed in F.A. No.5241/2008 dated 06.07.2015 wherein, the market value of land of Village : Nani Kadi has been fixed at Rs.75/ per sq. metre. He, therefore, submitted that the compensation Page 3 of 10 HC-NIC Page 3 of 10 Created On Wed Aug 05 01:35:21 IST 2015 C/FA/260/2010 JUDGMENT awarded to the claimants deserve to be enhanced appropriately after considering the rise in price for five years.
6. We have heard learned counsel for both the sides. In respect of the lands situated in Village : Nani Kadi, this Court has fixed the market value of land, vide judgment and order passed in F.A. No.5241/2008, which is reproduced hereunder;
"1. Present appeal has been filed against the judgment and award dated 07/03/2008 passed by the learned 9 th Additional Senior Civil Judge, Mahesana in Land Acquisition Reference Case No. 5360 of 2003, whereby, the reference was partly allowed and the appellant ONGC was ordered to pay additional compensation @ Rs.100/ per sq. mtr. over and above the amount awarded by the Special Land Acquisition Officer.
2. The facts in brief of the case are that the land situated at village: Nani Kadi, Tal.: Kadi, Dist.: Mahesana was acquired by the appellant ONGC for which, Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act for brevity) was published on 26/04/1999 and Section 6 Notification was published on 17/10/1999. Thereafter, award came to be passed by the competent authority fixing the amount of compensation @ Rs.24/ per sq. mtr. However, being dissatisfied with the award, the original claimants raised dispute by way of reference before the Court below. The reference Court, after appreciating the documents on record, partly allowed the Page 4 of 10 HC-NIC Page 4 of 10 Created On Wed Aug 05 01:35:21 IST 2015 C/FA/260/2010 JUDGMENT same by way of the impugned award. Hence, the present appeal.
3. The main contention raised by the learned advocate appearing for the appellant ONGC is that the acquisition is pertaining to the land situated at village: Nani Kadi for which Notification under Section 4 of the Act was published on 26/04/1999 and Section 6 Notification was published on 17/10/1999. The Special Land Acquisition Officer, after hearing the parties and following due procedure, awarded the amount of compensation @ Rs.24/ per sq. mtr., however, the Reference Court, relying upon the decision in Land Acquisition Reference Case No. 1205 of 1998, exh. 19, where Rs.30/ was awarded per sq. mtr. where, Section 4 Notification was published on 23/09/1984 whereas, in the case on hand, Section 4 Notification is issued on 26/04/1999, granted Rs.124/ per sq. mtr., which is erroneous, and even considering aforestated exh. 19 and considering 10% increase per year, Rs.75/ per sq. mtr. would be the reasonable compensation and Rs.124/ is as awarded by the Tribunal is on a much higher side and submitted that Rs.51/ per sq. mtr. would be the just and proper compensation over and above what was granted by the Special Land Acquisition Officer.
4. Per contra, the learned advocate appearing for the respondent relied upon the award passed in Land Acquisition Reference Case Nos. 5383 of 2003 and 5384 of 2003, which is not exhibited before the Reference Court. Relevant para 15 of same is extracted hereunder:
15. From the other side no iota of evidence is put on record revealing the facts as to on which date the claimants were served with the written intimation in regard with declaration of award coupled with the copy of award, so that the direct or the constructive knowledge of the claimant Page 5 of 10 HC-NIC Page 5 of 10 Created On Wed Aug 05 01:35:21 IST 2015 C/FA/260/2010 JUDGMENT regarding the point of limitation can be easily calculated. Equally acquiring agency has not disputed the point of limitation and hence, I have not dealt with the same nor any Issues to that effect is framed and settled accordingly.
It is undisputed fact that LAQ No.: 935/96M proceeded with for which necessary notification under Section 4 is duly published. The claimants are claiming Rs.1000=00 and Rs.110=00 respectively per square meter as a market value as against that they have been paid Rs.18=50 paise per square meter, which obviously appears very unfair and unjust compensation which does not call any additional evidence to discharge the initial burden of proof as to how the amount paid by the land acquisition officer being unfair, simply for the reason that if we go to purchase handkerchief of cotton one has to spent minimum Rs.15/ per square meter. As against that the claimants before me have lost their valuable piece of land against their desire. It is out experience that day by day price of the agriculture land is going up at a rocket speed against fast falling purchasing power of money there is an acute scarcity of the agricultural land with this back ground the entire matter is required to be evaluated. The claimants have placed evidence on the point of potentially of their land by stating their land is having irrigation facilities for which revenue abstract is put on record. Learned Advocate M/s. Patel have put up great weight on previous judgment. So it is needless to discuss the potential evidence in detail. It is further stated that judgment of the same Village Nani Kadi (Jaydevpura) is produced at Exh.: 14 where under the market value is assessed to the extent Page 6 of 10 HC-NIC Page 6 of 10 Created On Wed Aug 05 01:35:21 IST 2015 C/FA/260/2010 JUDGMENT of Rs.30=00 per square meter for which a preliminary notification is dated 23.09.1984 whereas corresponding one is dated 23.04.1999, thus, there is a clear time gap of 14 years and 07 months i.e. 15 years. Under the previous judgment the market value of the land was determined to extent of Rs.30=00 Ps. Per square meter; so where the claimants are not coming with the sale transaction the market value is fixed under the previous judgment same village to the extent of Rs.30=00 per square meter. The same can be taken as base for awarding compensation in the present reference also. So year to year 10% price rise should be awarded as the material factor for considering the market value prevalent on the date of publication of notification under Section 4 of the Act for which a case of Special Land Acquisition Officer Vs. Motibhai Mohanbhai reported in 1997 (2) GLH:
773. So considering the time gap the claimants are entitled to get Rs.125=24 paise as market value as against that they have been paid Rs.18=50 Paise, per square meter, so the claimants are clearly entitled to get additional compensation of Rs.106=74 per square meter, which figure can be rounded off as Rs.107=00 per sq. mt, for the sake of convenience. It is pertinent to note here that, the claimant of LAR No. 5384/03 has claimed compensation at the rate of Rs.110=00 only, therefore, he is entitled to get additional compensation of Rs.92=00 (Rs.110=00 less Rs.18=50 received) only, as this Court cannot award more compensation that, what is claimed by the claimant in the reference application.
5. We have heard the learned advocates for the Page 7 of 10 HC-NIC Page 7 of 10 Created On Wed Aug 05 01:35:21 IST 2015 C/FA/260/2010 JUDGMENT respective parties and perused the documents on record.
The document, which is sought to be relied upon by the learned advocate appearing for the respondents is not exhibited before the Reference Court. We are of the opinion that merely because the appellant ONGC has not challenged the same before the appropriate forum, the same is not binding to us. In the facts of the case, keeping in mind 10% increase per year, the contention of the learned advocate appearing for the appellant is required to be considered and if it is considered, Rs.75/ per sq. mtr. would be the just compensation. The Special Land Acquisition Officer has awarded Rs.24/ per sq. mtr. and hence, in view of the aforesaid, the respondents are entitled for additional compensation @ Rs.51/ per sq. mtr.
6. For the foregoing reasons, present appeal is hereby partly allowed and it is held that the respondents are entitled to additional compensation @ Rs. 51/ per sq. mtr. i.e. Rs.75/ in total. It is further held that the interest is awarded from the date of award under Section 11. The excess amount lying with the Reference Court shall be refunded to the appellant. No order as to costs."
6. In the aforesaid decision, the acquired lands are situated in Village : Nani Kadi, Taluka : Kadi and the Notification u/s.4 of the Act was published on 26.04.1999.
In this case, the acquired lands are situated in Village Kadi, which is adjacent to Village : Nani Kadi and therefore, the aforesaid decision could be taken as the basis for assessing the market value of acquired lands.
Page 8 of 10
HC-NIC Page 8 of 10 Created On Wed Aug 05 01:35:21 IST 2015
C/FA/260/2010 JUDGMENT
7. In this case, the Notification u/s.4 of the Act was published on 06.04.2004 and therefore, by considering appreciation of 10% every year for the 05 year period between the Section4 Notifications, the total rise would come to Rs.37.50 per sq. metre. Therefore, the claimants shall be entitled for total compensation of Rs.112.50 [75 + 37.50] per sq. metre, which is rounded off to Rs.113/, for the acquired lands.
8. The reference Court has awarded compensation @ Rs.87/ per sq. metre [Rs.63/ plus Rs.24/ awarded by Land Acquisition Officer] for the acquired lands. Hence, the claimants shall be entitled for additional compensation of Rs.26/ per sq. metre for the acquired lands.
9. For the foregoing reasons, the appeal is dismissed whereas, crossobjections are partly allowed. The impugned judgment and award is modified to the extent that the market value of acquired lands is assessed at Rs.113/ per sq. metre, as against Rs.87/ assessed by the reference Court and the original claimants shall be entitled for additional compensation @ Rs.26/ per sq. metre for the acquired lands. Rest of the impugned judgment and award remains unaltered. Both the appeal as well as cross Page 9 of 10 HC-NIC Page 9 of 10 Created On Wed Aug 05 01:35:21 IST 2015 C/FA/260/2010 JUDGMENT objections stand disposed of accordingly. Records and proceedings, if lying here, be sent to the reference Court concerned forthwith.
(K.S.JHAVERI, J.) (G.B.SHAH, J.) Pravin Page 10 of 10 HC-NIC Page 10 of 10 Created On Wed Aug 05 01:35:21 IST 2015