Gujarat High Court
Shantaben Jivabhai vs State Of Gujarat on 9 May, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/MCA/605/2025 ORDER DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR RECALL) NO. 605 of
2025
In R/FIRST APPEAL NO. 4388 of 2019
With
R/MISC. CIVIL APPLICATION NO. 610 of 2025
In
R/FIRST APPEAL NO. 4391 of 2019
With
R/MISC. CIVIL APPLICATION NO. 614 of 2025
In
R/FIRST APPEAL NO. 4392 of 2019
With
R/MISC. CIVIL APPLICATION NO. 616 of 2025
In
R/FIRST APPEAL NO. 4393 of 2019
With
R/MISC. CIVIL APPLICATION NO. 633 of 2025
In
R/FIRST APPEAL NO. 4387 of 2019
With
R/MISC. CIVIL APPLICATION NO. 634 of 2025
In
R/FIRST APPEAL NO. 4390 of 2019
With
R/MISC. CIVIL APPLICATION NO. 636 of 2025
In
R/FIRST APPEAL NO. 4389 of 2019
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SHANTABEN JIVABHAI
Versus
STATE OF GUJARAT & ANR.
=============================================
Appearance:
MR SANJAY M AMIN(130) for the Applicant(s) No. 1
Mr. Akash Chhaya, Asst. GOVERNMENT PLEADER for the
Opponent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 09/05/2025
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE) Page 1 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined
1. The present applications are filed at the instance of the original appellants seeking recall of the order dated 09.09.2024 passed by this Court in First Appeal No.4387 of 2019 and allied matters.
2. We have heard learned advocate Mr. Nitin Amin appearing for the applicants and Mr. Akash Chhaya, learned Assistant Government Pleader has appeared on behalf of the respondents authorities. On the previous occasions, the matters were notified for hearing, whereby, the learned advocate for the applicants at the outset, has submitted that when the order was pronounced by this Court on 09.09.2024 along with a group of matters, it was held to be partly allowed. The case status details also reflected that the appeals were disposed of as partly allowed at the final hearing stage, however, the uploaded copy of the judgment reveals that the appeals were dismissed.
3. Noticing the aforesaid facts and having perused the order dated 09.09.2024 passed by us in the main captioned appeals, considering the grounds and submissions made by the learned advocate highlighting the merits of the case, we had re-heard the matter with the consent of the learned advocate for the respective parties. The record and proceedings were once again called for by this Court to re-appreciate the arguments of the learned advocate for the applicants.
4. Learned advocate Mr. Amin for the applicants has Page 2 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined submitted that this Court as well as Reference Court committed serious error in not considering the judgment of the Reference Court passed in Land Reference Case No.127 of 2005, which was produced on record at Exh.79. He has further submitted that the sale instance of the village Nana Gujariya was produced at Exh.78, which has been proved through the evidence of the purchaser of the said land viz. Sanatkumar Bamtani, who has been examined by the original claimants at Exh.77. He has further submitted that by accepting the aforesaid sale instance and the evidence of witness, the Reference Court in the case of Land Reference Case No.127 of 2005 has determined the market value of similarly situated acquired lands of same village at the rate of Rs.200/- to Rs.400/- per sq. mtrs. Despite the aforesaid argument being canvassed, this Court has refused to consider the case of enhancement of award amount to the tune of Rs.268/- per sq. mtrs. Learned advocate has invited our attention to the principles laid down by this Court in the case of State of Gujarat through Special Land Acquisition Officer vs. Amaji Mohanji Thakore reported in 2010(4) GLR 3589 and of the Hon'ble Supreme Court in the case of R. Sarangpani vs. Tahshildar, reported in (2011) 14 SCC
177. Learned advocate has submitted that this Court fell in error by holding that merely because the said exemplar was forming part of the same village may not be a relevant criteria as the sale instance produced on record at Exh.78 relates to a small size non agricultural plot which was subject to industrial use. Learned advocate has further submitted that the Court failed to appreciate the settled legal position as laid down by Page 3 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined the Hon'ble Supreme Court in the case of Thakarshibhai Devjibhai And Ors. vs Executive Engineer, Gujarat reported in AIR 2001 SCW 2417. By referring to the aforesaid decision, learned advocate has submitted that even if the distance between two classes of lands is there itself would not derogate factor to the claim of the claimants unless there are other materials to show that quality and potentiality of such lands are different and inferior. According to him, no evidence has been led on behalf of the State in this regard. He has further submitted that the largeness of acquired land has been taken into consideration by clubbing the acquired lands together, in fact the holding of each landowner are of small area. Thus, according to him, the reasons assigned by this Court of a small piece of land of sale instance relied upon being not comparable, is not tenable. The reliance was also placed on the decision of this Court in the case of Special Land Acquisition Officer vs. Ramanbhai Haribhai reported in 2001(3) GLH 655. He has further submitted that as against the aforesaid sale instance, the Court has taken into consideration Exh.92, which is an award passed by the Reference Court in Land Referenced Case Nos.11 of 2004 to 24 of 2004 in case of land acquired of the adjourning village Mota Gujariya. He has therefore submitted that once the sale instance of the same village is available and offers a higher value as compared to the land acquired of different villages then this Court ought to have considered the aforesaid sale instance for the purpose of determination of the additional amount of compensation. By making aforesaid submissions, learned advocate has urged to recall the order dated Page 4 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined 09.09.2024 passed by this Court in the captioned appeals and to enhance additional amount of compensation by taking into consideration the sale instance produced at Exh.78 and the award passed by the Reference Court has produced on record Exh.79 in respect of acquisition of same village.
5. Mr. Chhaya, learned Assistant Government Pleader appearing for the respondent State authority has placed reliance upon the order dated 09.09.2024 passed by this Court in the captioned appeals as well as findings and reasons assigned by the Reference Court in the impugned judgment and award and has urged this Court to not to entertain the present application seeking recall of the order dated 09.09.2024 passed in the captioned appeals.
6. Having heard the learned advocates for the respective parties and having re-examined the order dated 09.09.2024, in light of the submissions made by the learned advocates for the respective parties, we have closely re-examined the Record and Proceedings of the case in light of the submissions made by the learned advocate for the applicants. The three comparable instances available on record are indisputably the sale instance dated 14.3.2000 of small size non agricultural plot of same village Nana Gujariya (Exh.78), the judgment and award passed in LAR Case Nos.127 of 2005 to 147 of 2005 (Exh.79) and the judgment and award passed in LAR Case Nos.14 of 2005 to 24 of 2005 (Exh.92), for the purpose of determination of additional amount of compensation. The Page 5 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined aforesaid arguments canvassed by the learned advocate for the applicants has been dealt by us in the order dated 09.09.2024, however while considering the submission with regard to accepting the sale instance produced on record Exh.78 for the purpose of determination of the claim of enhancement erroneously, we have noted that the registered sale deed was executed on 14.03.2000 for consideration of Rs.43,200/- which would come to the rate of Rs.10.67 ps per sq. mtrs, by observing that the sale deed was in respect of 1 acres of land. However, on re-examination of the aforesaid sale deed at Exh.78, we realized that the sale deed was executed in respect of 53.34 sq. mtrs of the plot out of total area admeasuring acres 1.00 gunthas (4047 sq mtrs). Thus, the market value of aforesaid land as on the date of execution, which is 14.03.2000, for consideration of Rs.43,200/-, the sale was at the rate of Rs.810/- per sq. mtrs. Having noted so, while considering the issue of smallness of non agricultural plot as against the area of acquired lands for treating it as comparable exemplar, we had relied upon the broad principles laid down by the Hon'ble Supreme Court in the case of Chimanlal Hargovinddas vs Special Land Acquisition Officer reported in (1988) 3 SCC 751. According to us, to treat a comparable instance, two important criteria i.e. proximity from time angle and proximity from situation angle were required to be considered to arrive at such a conclusion. Admittedly, the aforesaid sale exemplar is forming part of the same village. As regards proximity in time of the acquired land is concerned, indisputably, the sale deed at EXH. 78 was executed on 14.3.2000. As against that, Page 6 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined the Notification under Section 4 of the Land Acquisition Act for acquisition of present set of lands was published on 18.1.2001, therefore the sale exemplar relied upon is prior in point of time, as against the Notification issued under Section 4 of the Act and both are of the same village. This brings us to the issue of the nature of lands. The instance relied upon by the original claimant indisputably relates to industrial use / residential small size plot of Gamtal area. Hence, we were of the view that the same cannot be treated as a comparable instance and had therefore, not found it was a case to consider for enhancement of compensation, by applying the principle of 1/3rd deduction as considered in the case of Amaji Mohanji Thakore (supra). However, in the present recall applications, learned advocate has invited our attention to the decision of the Hon'ble Supreme Court in the case of Deputy Collector vs. Madhubhai Gobarbhai, reported in (2009) 15 SCC 125 wherein, the sale instance of non agricultural land relied upon for acquisition of agricultural land has been considered by applying 1/3rd deduction. Our attention was also invited to the judgment of the Hon'ble Supreme Court in the case reported in Kazi Moinuddin Kazi Bashiroddin vs. The Maharashtra Tourism Development Corporation Limited., 2022 (14) Scale 490 wherein the Hon'ble Supreme Court has held that when the matter relates to payment of amount of compensation to the land losers, if at all two views are possible, the view that advances the cause of justice is always to be preferred rather than the other view, which may draw its strength only from technicalities. A similar view has also been taken by the Hon'ble Supreme Page 7 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined Court while considering the sale of small areas as against the larger area of acquired land by following the principle of 1/3rd deduction as well as deduction towards development, in the case of HP Housing Board vs. Bharat S. Negi and others reported in (2004) 2 SCC 184 which is subsequently followed in the case of R. Sarangapani vs. Tahsildar reported in (2011) 14 SCC 177 . In our opinion, on overall consideration of evidence brought on record and in light of the aforesaid principles laid down by the Hon'ble Supreme Court, more particularly, noticing the principle laid down in the case of Mehrawal Khewaji Trust(Regd) vs State Of Punjab & Ors reported in (2012) 5 SCC 432, where the Court has laid down that when there are more than one sale instance the highest price shall be taken into consideration and average method should not be applied and / or at the most 20% deduction to be considered in case of small plots, the present applications deserves consideration.
7. We have once again given thoughtful consideration to the submissions made by learned advocates for the respective parties. We do not agree with the proposition advanced by the learned advocate for the appellant that since the lands are situated in the same village, it has to be accepted as the comparable instance for determination of additional compensation. On the contrary the law laid down by the Hon'ble Supreme Court in the case of Madhubhai Gobarbhai (supra) it is held that even if the land is of one village, the entire village is not to be given one compensation. The Courts are expected to take holistic approach and take Page 8 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined into consideration relevant factors before treating a sale exemplar as comparable. The Hon'ble Supreme Court in the facts of the case has identified the purpose of acquisition, potentiality of development and nature of land as relevant factors to be applied for the purpose of identifying the sale exemplar as a comparable instance. Considering the aforesaid legal position in light of the evidence on record, we are of the view that though sale instance produced at EXH. 78 which has been proved and established through the evidence of witness examined at EXH. 77 and read as evidence in the LAR case no.127 of 2005 ( EXH.79), in absence of any sale deeds of same village, the aforesaid sale instance though being non agricultural small sized plot for industrial purpose requires to be treated as best exemplar available on record as against the reference court award of agricultural lands of adjoining village of Mota Gujariya (EXH. 92). Hence, we are inclined to recall the order dated 09.09.2024 passed by this Court in captioned appeals.
8. From the schedule of acquired lands in LAR Case No. 11 of 2004 to 24 of 2004 , it is apparent that the area of lands vary from 15.18 sq. mtrs to 440.35 sq. mtrs, whereas the area of sale instance at EXH.78 is 53.34 sq. mtrs. Considering the aforesaid facts, in light of the principles laid down by the Hon'ble Supreme Court in the case of Mehrawal Khewaji (supra), we are of the view that applying 1/3rd deduction towards development of the surrounding Gamtal area, it would be appropriate to deduct 1/3rd towards the value of the sale instance at Exh.78. Even otherwise, the lands acquired Page 9 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined are to be utilized for the purpose of construction of reservoir and are to be submerged. Therefore, there is no expense to be incurred towards development of the acquired land. Hence, market value of the land is determined at a rate of Rs.268/- per sq. mtrs. as claimed by the original claimants.
9. For the foregoing reasons, the present applications are allowed. The order dated 09.09.2024 passed by this Court dismissing the First Appeals is hereby recalled. The captioned appeals stands partly allowed to the extent by enhancing the additional amount of compensation by applying 1/3rd deduction to the value of sale instance produced on record at Exh.78 by treating it as best comparable exemplar available on record. Hence, market value of the land is determined at a rate of Rs.268/- per sq. mtrs. as claimed. The original claimants are entitled to all statutory benefits as awarded by the Reference Court on such entire amount of compensation. In light of the fact that the appeal has been allowed, the respondent State Authorities are directed to deposit the enhanced amount of compensation after deducting the amount received towards award passed under section 11 of the Act and additional amount received pursuant to the award passed by the Reference Court. The aforesaid amount is directed to be deposited with the Reference Court preferably within a period of three months from the date of receipt of this order. In case of amount being deposited, and on appropriate orders being passed by the Reference Court with regard to disbursement of amount of compensation, the Registry shall verify the Court fees as against the amount of Page 10 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025 NEUTRAL CITATION C/MCA/605/2025 ORDER DATED: 09/05/2025 undefined compensation awarded before proceeding with the disbursement of the award amount in favour of the claimants. Registry is directed to send back the Record and proceedings of the case to the concerned court forthwith.
sd/-
(BIREN VAISHNAV, J) sd/-
(NISHA M. THAKORE,J) RATHOD KAUSHIKSINH Page 11 of 11 Uploaded by RATHOD KAUSHIKSINH JILUSINH(HC00957) on Thu May 15 2025 Downloaded on : Thu May 15 22:18:03 IST 2025