Gujarat High Court
Dy vs Patel on 7 July, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
FA/1898/2011 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1898 of 2011
To
FIRST
APPEAL No. 1942 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE R.M.CHHAYA
=========================================================
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 ?
=========================================================
DY.
COLLECTOR & 1 - Appellant(s)
Versus
PATEL
JASHODABEN VITTHALBHAI - Defendant(s)
=========================================================
Appearance
:
MS
MOXA THAKKAR ASST. GOVERNMENT PLEADER
for
Appellant(s) : 1 - 2.
MR AV PRAJAPATI for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 28/06/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Admit.
2. Mr. Prajapati, learned counsel appears for all the original claimants-respondents herein and waives notice of admission. With the consent of the learned counsel appearing for both the sides appeals are finally heard.
3. The short facts of the case are that for the project of Sujlam Suflam Spreading Canal the lands at village Lodra were acquired under the Land Acquisition Act (hereinafter referred to as the 'Act'). Notification under section 4 of the Act was published on 17.08.2004. Notification under section 6 of the Act was published on 09.11.2004. The award under section 11 of the Act was published on 28.03.2005 whereby the Special Land Acquisition Officer awarded the compensation at Rs.16/- per sq mtr. The land owners/claimants were not satisfied with the compensation and they have raised dispute under Section 18 of the Act demanding compensation at Rs.1500/- per sq mtr. and the disputes were referred to the Reference Court for adjudication being Reference No.191 of 2006 to 198 of 2006, 212 of 2006 to 233 of 2006, 239 of 2006 to 252 of 2006 and 514 of 2006. The Reference Court ultimately at the conclusion of the reference awarded additional compensation of Rs.284 (Rs.300 minus Rs.16 already paid as per award). The Reference Court also awarded solatium at the rate of 30%, increase on the market value at the rate of 12% and interest as per section 28 of the Act by the impugned award dated 25.05.2009. It is under these circumstances the present appeals before this Court.
4. We have heard the learned Assistant Government Pleader Ms.Moxa Thakkar for the appellants and Mr.A.V.Prajapati, learned counsel appearing for the respondents/original claimants. We have considered the judgment and the reasons recorded by the Reference Court and we have also considered the map, the award and other relevant documents which have been made available to the Court by learned counsel appearing for both the sides at the time of hearing.
5. The perusal of the reasons recorded by the Reference Court for the assessment of the market price shows that the Reference Court has mainly relied upon the decision in Land Reference Case No.182 of 2006 by the Reference Court in respect of the land at Village Kharna, Tal:
Mansa wherein the Reference Court had awarded the compensation @ Rs.300 per sq mtr. It also appears that on behalf of the claimants other awards passed by the Reference Court in respect of village Mansa and other adjoining areas were produced. However, the Reference Court did not rely upon the same in view of the fact that at the relevant point of time they were challenged before the High Court and the matters were pending.
6. It may also be recorded that the Reference Court in the discussion at para:21 of the judgment declined to rely upon such awards of the Reference Court at village Pedhamali, Abasana and Gojaria on the ground that they were pertaining to the acquisition of land situated at a long distance in comparison to the location of land at village Lodra.
7. Learned Assistant Government Pleader during the course of hearing has relied upon decision of the acquisition of the land at village Rindrol located at distance of 5 km from village Lodra. She submitted that in the said matter also the Notification under section 4 of the Act was of the very date i.e. 17.08.2004 like the present matter and this Court awarded the additional compensation @ Rs.215 per sq mtr. She contended that as per the decision taken by this Court in case of First Appeal No.7666 of 1999 and allied matters this Court has taken view that when the distance is more in comparison to the distance of other village from the principal city there would be reduction of 5% in the valuation of the land. She submitted that therefore the same formula deserves to be applied in the present case since village Lodra is located at a distant place in comparison to village Rindrol, and, therefore, the award passed by the Reference Court deserves to be interfered with.
8. Whereas Mr.Prajapati, learned counsel appearing for the respondents-claimants contended that the position is otherwise, inasmuch as in his submission development of village Lodra is more than both the villages viz. Rindrol and Galathara. He submitted that if the basis is to be considered as that of village Rindrol then also there is bound to be more market value of the land located at village Lodra. He further submitted that as mentioned by the Special Land Acquisition Officer in his own award Lodra is a place located on the railway track plus there is Ayurvedic College, PTC College and one industry i.e. Vadilal Industry is also established, and, therefore, he submitted that if the said aspect is considered the appreciation in comparison to the price of the land at village Rindrol should be minimum 10% more and it in no case would be less then village Rindrol. He therefore submitted that it is a case where there is little scope for reduction of the compensation awarded by the Reference Court and not at par with the contentions raised on behalf of appellant by reducing 5% than the compensation awarded for village Rindol.
9. Learned counsel during the course of hearing has also made available to the Court the award passed by the Special Land Acquisition Officer for the land at Village: Rindrol. In case of the award of the land at village Rindrol, the Special Land Acquisition Officer has recorded that there is no bank facility, nor there is any college but while considering the potentiality of the land he has also mentioned that nearby the village Rindrol there is village Lodra which is a developed village located at a distance of 3 km. It is true that in the said case for the acquisition of land at Village Rindrol, he has awarded compensation at the rate of Rs.20 per sq mtr though Notification under section 4 of the Act was of the same date i.e. at par with village Lodra, but if the description and the potentiality of the land as considered by the Land Acquisition Officer in the award for the land at Village Rindrol in comparison to the description in the potentiality of the land located at village Lodra is considered, the potentiality is higher and more developed at village Lodra. Therefore while passing the award, it was required for the Special Land Acquisition Officer to award higher amount of compensation awarded for the acquisition of land at Village: Lodra. In view of the said peculiar circumstances we find that the additional contentions raised by the learned APP during the course of hearing that after considering the additional compensation confirmed by this Court for village Rindrol there may be proportionate reduction in the compensation keeping in mind the difference in the potentiality of the land found by the Special Land Acquisition Officer and consequently awarded compensation at the rate of Rs.16 as against Rs.20/- be considered, cannot be accepted.
10. It further appears that if there is comparison to the location and the development of the land at village Lodra in comparison to the village Rindrol, it can be said that the land located at village Lodra is having better potentiality. However, at the same time we can not lose sight of the important aspect that village Lodra is located at a distance of about 3 to 4 km more in comparison to village Rindrol which is located on the State Highway No.138 as appearing from the official map relied upon by the learned Assistant Government Pleader. Therefore if the distance alone is to be considered, there may be reduction of the price in comparison to the land at Village Rindrol but at the same time it further appears that the location of the land at village Lodra at railway station and at village Lodra there are Ayurvedic College and PTC College and also one industry. It appears that after taking into consideration the higher development and the potentiality by giving appreciation of 10%, the reduction for the distance is excluded, it would be just and proper to consider the appreciation at the rate of 5% in comparison to the land at village Rindrol.
11. The aforesaid facts take us to consider the decision of this Court in case of acquisition of the land at village Rindrol upon which reliance has been placed by learned Assistant Government Pleader. We may record that in First Appeal No.1325 of 2011 to 1330 of 2011 which have been decided with the group of First Appeal No.1304 of 2011 on 28.04.2011, this Court had observed thus;
"7. The perusal of the judgement of the Reference Court shows that the Reference Court has mainly relied upon its earlier decision in Land Reference Case Nos.410/06 to 461/06 for the acquisition of the land of village Mansa which is a taluka town wherein the additional compensation was fixed at Rs.560/- per square metre. After taking into consideration the said judgement, it has arrived at the compensation in the present matters. We may record that the very decision of the Reference Court in Land Reference Case No.410/06 to 461/06 has been carried in appeal being First Appeal No.3397/09 to 3349/09 and in the said decision, it has been observed thus-
"2. The short facts of the case are that lands located at village Mansa, Taluka Mansa were acquired under the Land Acquisition Act (hereinafter referred to as "the Act") for the project of Sujlam Suflam Irrigation Canal. The notification under section 4 of the Act was published on 26.08.2004 and the notification under section 6 of the Act was published on 12.01.2005. The Land Acquisition Officer had passed the award under section 11(1) of the Act and he had awarded the compensation at Rs.25/- per square meter. The claimants/land owners were not satisfied with the compensation and therefore, they raised dispute under section 18 of the Act demanding the compensation of Rs.800/- per square metre. The matters were referred to the Reference Court for adjudication and the Reference Court passed impugned judgement dated 30.06.2008, whereby the Reference Court has awarded the additional compensation of Rs.560/- per square metre plus statutory benefit under section 23(1-A), 23(2) and interest as per section 28 of the Act. It is under these circumstances, the present appeals before this Court.
3. We have heard Ms.Thakkar, learned AGP for the appellant and Mr.Yatin Soni, learned counsel has appeared for all the original claimants/respondents herein.
4. The perusal of the judgement of the Reference Court and more particularly the reasons recorded by the Reference Court from para 20 onwards shows that the Reference Court has mainly relied upon the decision of the earlier Reference Court for acquisition of the land at Mansa for the purpose of ONGC project and the compensation awarded therein. The Reference Court has found that keeping in view the said aspect that the compensation awarded was of Rs.646.50, it would be just and proper to award the compensation at Rs.585/- per square metre and based on the same, after deducting Rs.25/- as compensation already awarded, the Reference Court awarded additional compensation at Rs.560/- per square metre plus the statutory benefits.
5. The learned AGP has submitted that merely because the Award in case of ONGC Project was accepted or that no appeal was preferred against the decision of the Reference Court, it cannot be said that there is no merit in the present appeals or that the judgement and the award of the Reference Court is not required to be interfered with. She relied upon the decision of the Division Bench of this Court in First Appeal No.4069/07 and allied matters decided on 11.04.2008 for acquisition project of village Sargasan of the same district, viz., Gandhinagar and she submitted that inspite of the fact that Sargasan is nearby to the periphery of Gandhinagar, which is a capital town, this Court has fixed the market value at Rs.231/- per square metre of the land of village Sargasan and therefore, she submitted that if the said aspect is taken into consideration, the compensation fixed by the Reference Court is on a higher side even if the appreciation is considered because of the time gap between the notification under section 4 of the Act in the case of acquisition of the land at Sargasan and the acquisition in question of the land at Mansa.
6. Whereas Mr.Soni, learned counsel appearing for the original claimants-respondents herein submitted that the decision of this Court was not before the Reference Court and in his submission, as the Award of the Reference Court for the land at city Mansa was already accepted, the Reference Court was not wrong in relying upon the said decision for the purpose of fixing the compensation. He submitted that if the valuation of the Government valuer is considered, the price may be much higher in comparison to the same lesser amount is fixed as the market price by the Reference Court as per the reasons recorded therein. Therefore, he submitted that the Reference Court has rightly awarded the compensation.
7. We may record that the aspect of valuation made by the Government Valuer is concerned, the same is not accepted or relied by the Reference Court and there is no cross appeal by the claimants/respondents herein. Therefore, the original claimants cannot press in service the aspect which has not been accepted by the Reference Court. Further, it is by now well settled that if there is decision of this Court on the aspect of fixation of price of the land for any other acquisition project in the nearby area, the same can be taken into consideration by this Court even if such was not brought to the notice of the Reference Court.
8. We may record that the acquisition in question is at Mansa which is a taluka town, but in Gandhinagar district. Gandhinagar is a district as well as capital town of Gujarat State. Sargasan is just at a nearby distance of 8-10 kms from Gandhinagar. If for the acquisition project of village Sargasan any decision is taken by this Court for fixation of price, it will be the relevant aspect and even if it is not brought to the notice of the Reference Court at the relevant point of time when the appeals are to be considered and decided by us, the same can be taken into consideration. Hence, we cannot accept the objection raised by the learned counsel for the appellant.
9. The perusal of the decision of this Court in the First Appeal No.4069 of 2007 for the acquisition project of the land at village Sargasan shows that the notification under section 4 in that case was dated 20.05.1993 and the market price upheld by this Court is at Rs.231 per square metre. In the present case, as observed earlier, the notification under section 4 is dated 26.08.2004. Therefore, there is roughly a time gap of about 11 years between the notification in the case of land acquisition for the land at village Sargasan and the present acquisition. It is by now well settled that in normal circumstances, the appreciation could be considered at the rate of 10% p.a. and if such aspect is considered, for 11 years, the amount of appreciation would come to Rs.254/- + Rs. 231/-, as the price was fixed in the year 1993, it would come to Rs.485/- per square metre if the matter is considered as it is.
10. However, the aspect of distinction between location of land at village Sargasan near to the capital city of Gandhinagar and the aspect of location of the land at Mansa, which is a taluka town, deserves to be considered. The distance between Gandhinagar city and Mansa is stated to be approximately 20 kms. We find that there is full development of Gandhinagar capital city and it cannot be at par with Mansa which is a taluka town. Even if Sargasan is considered as suburb area of Gandhinagar capital city, then also, there will be substantial difference in the price in comparison to the price of the land at Mansa. It appears to us that even if the difference is considered between suburb of capital city in comparison to the taluka town, the normal deduction can be made at the rate of 30%. However, after considering the said deduction, the aspect of development for Mansa is also required to be considered. If 30% deduction is considered of Rs.485/-, Rs.145/- would be required to be deducted and consequently the net amount would come to Rs.339/-. We find that since Mansa is a taluka town, 10% additional benefit by way of appreciation of the price of the land may be available since in Taluka town there will be basic infrastructure of road, light and other developments. If the amount of 10% is added being Rs.34/-, the said amount would come to Rs.373/- per square metre being the market price of the land in question, out of which, the amount of Rs.25/- has already been awarded as compensation and if the said amount is deducted, the net amount of additional compensation would come to Rs.348/- per square metre. Under the circumstances, the judgement and the award passed by the Reference Court for granting additional compensation exceeding Rs.348/- per square metre deserves to be quashed and set aside.
11. The other part of benefit awarded by the Reference Court being statutory benefit of solatium, increase in the price and interest as per the provisions of sections 23(1A), 23(2) and 28 of the Act are not required to be interfered with except to be clarified that on account of the reduction of the principal amount of compensation, such statutory benefit shall proportionately get reduced.
In view of the aforesaid observations and discussions, the impugned judgement and award passed by the Reference Court for awarding compensation exceeding Rs.348/- per square metre being additional compensation is quashed and set aside and it is clarified that the benefits awarded by the Reference Court under sections 23(1A), 23(2) and 28 of the Act are not interfered with but with the clarification that the same shall proportionately get reduced on account of the reduction of the principal amount of compensation."
8. Therefore, as observed in the above referred judgement, the amount of Rs.560/- which was fixed as the additional compensation is modified to Rs.348/- per square and the judgment and the award of the Reference Court in Land References Case No.410/06 to 461/06 is set aside so far as it relates to awarding the additional compensation exceeding Rs.348/- per square metre for the acquisition of the land at Mansa.
9. It is an admitted position that the Mansa is a Taluka City whereas the land in question in the impugned judgement are located at village Galathara and Ridrol. This Court had an occasion to consider the difference in the price between the land located at Taluka City area and the land located at the village whose boundary is upto to the city of a Taluka Town in First Appeals No.2794 of 2009 and allied matters and in the said decision, it was observed thus -
"7. In both the matters, the Reference Court has lost sight of the important aspect that Unjha is a municipal area whereas Brahmanwada is a gram panchayat area. In a case where the valuation is made of the land which is falling in the municipal area, it cannot be compared at para with the land situated at village area even if the boundary of municipal area and the boundary of the said village area may be touching to one another. The reason is that there would be basic difference in the infrastructural facilities and the amenities in the municipal area in comparison to the gram panchayat area. For municipal area, there will be facilities of water, light, transportation, road, school, etc., which may not be available in the gram panchayat area. Further, even if it is considered that since the area is adjacent to each other, there was more development in gram panchayat area, which is adjacent to the municipal area, it appears to us that if it is to be examined for the purpose of tracing the appropriate valuation, such valuation will be minimum 30% less in comparison to the value of the land in the municipal area. It appears that the Reference Court has totally lost sight of the said aspect and has considered the valuation of the land at par with Unjha which is a municipal area. The learned counsel for the original claimants is also not in a position to show any evidence to the contrary save and except that the village of Brahmanwada is touching to Unjha city. In our view, would not make much difference as observed earlier and the difference of valuation by 30% at least would continue even after the boundary of the village attached to the municipal area since the basic difference of various facilities and infrastructure and development between the municipal area and the gram panchayat area would continue.
8. In view of the aforesaid observations and discussions in the group of First Appeal No.2794/09, as the valuation of the land is assessed by the Reference Court at Rs.468/-, it will have to be reduced by 30% and such amount would come to Rs.140.40 and if deducted from Rs.468/-, it would come to Rs.327.60 out of which, the amount at the rate Rs.18/- per square metre has already been awarded as compensation. Therefore, the net amount would come to Rs.309.60 per square metre being the additional amount of compensation.
9. Whereas, in the group of First Appeal No.1732/10, as the valuation is fixed at Rs.455/- per square metre, amount of 30% required to be reduced would come to Rs.136.50 and the net amount would come to Rs.318.50 out of which, as the amount of Rs.18/- per square metre has already been awarded as compensation, the additional amount of compensation would come to R.300.50. The other benefits which are awarded by the Reference Court are in the nature of statutory benefits and therefore, they are not required to be interfered with save and except to the extent that on account of the reduction of the principal amount of compensation, such amount would proportionately get reduced."
10. As per the view taken by this Court in the above referred decision, there will be minimum difference of 30% in comparison to the value of the land in city area which is a taluka town just adjacent to the boundary of village area. In the above referred case for acquisition of land at Mansa, the market price assessed was at Rs.373/- and therefore, if 30% is deducted, it would come to Rs.112/- and therefore, the net price would come to Rs.261/- per square metre for village Galathara. We may record that as per the revenue map which has been made available by the learned AGP during the course of the hearing shows that the location of village Galathara and the revenue limits of village Galathara is touching to revenue limits of Mansa. Under the circumstances, the valuation of the land at village Galathara can be assessed at Rs.261/- per square metre out of which Rs.10/- has already been awarded as compensation by the Special Land Acquisition Officer. Consequently, the net amount would come to Rs.251/- per square metre.
11. Under the circumstances, for the acquisition of the land located Galathara which is comprising of the group of First Appeals No.1304 to 1323 of 2011, the market price is required to be fixed accordingly and consequently, the net amount of compensation.
12. The aforesaid leads us to examine the question of assessment of the market price for village Ridrol. Since the boundary of village Ridrol is touching to village Galathara, it can reasonably be said that between Mansa and village Ridrol, there is in between village Galathara. Therefore, the land at village Ridrol cannot be said as located at par with the land of village Galathara, but it can be said that after Galathara is crossed, the land at village Ridrol would come. Under the circumstances, keeping in view the distances of village Ridrol, we find that even if the valuation made of village Galathara is taken into consideration, there would be further deduction of 10% of the amount in the market price. Therefore, out of the amount of Rs.261/- which was assessed as the market price of the land of village Galathara, 10% would come to Rs. 26/- and the net amount would come to Rs.235/- per square metre being the market price of the land in question. As the amount of Rs.20/- has been paid as additional compensation as per the Award of the Special Land Acquisition Officer, the net amount would come to Rs.215/- and if rounded, would come to Rs.215/- per square metre."
(Emphasis supplied)
12. The pertinent aspect is that as per the aforesaid view expressed by this Court in para:12 of the above referred decision, the assessment of the market value of the land at village Rindrol was made at Rs.235/- per sq mtr and as Rs.20 was already awarded by way of compensation, the additional amount was fixed at Rs.215/- per sq mtr as the additional compensation. If the basis is considered as of Rs.235/- and the appreciation is considered at the rate of 5% it would come to Rs.11.75 and if rounded off it would come to Rs.12/- per sq mtr. The said 5% if added to the principal amount of Rs.235 such figure would come to Rs.247 per sq mtr being the market price of the land. There is no time gap between the Notification under section 4 of the Act of both the cases i.e. for the acquisition of the land at village Rindol and acquisition of the land in the present case, and, therefore, the said figure if considered and thereafter the amount of compensation already awarded by the Special Land Acquisition Officer is considered and excluded, the net additional amount of compensation come to Rs.231 per sq mtr. Under the circumstances the judgment and the award passed by the Reference Court deserves to be modified accordingly and the judgment and award passed by the Reference Court for awarding compensation exceeding Rs.235 deserves to be set aside. The other benefits awarded by the Reference Court of solatium, increase in the market value and the interest are in the nature of statutory benefits and, therefore, they are not required to be interfered with save and except to the extent that on account of reduction of the principal amount of compensation, such benefits shall be proportionately get reduced.
13. In view of the aforesaid observations and discussion, the judgment and award of the Reference Court for awarding additional compensation exceeding Rs.231 per sq mtr is quashed and set aside. The judgment and the award of the Reference Court so far as granting benefits of the solatium, increase in the market value and the interest as per the Act are not required to be interfered with save and except to the extent that such benefits would be available only on the principal amount of additional compensation at Rs.231 per sq mtr.
14. The amount of compensation if not deposited shall be deposited as per the judgment and order of this Court within a period of 8 weeks from the date of receipt of writ of this Corut.
15. Appeals are partly allowed. Considering the facts and circumstances there shall be no order as to costs. Decree accordingly.
(JAYANT PATEL, J.) (R.M.CHHAYA, J.) Amit Top