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Gujarat High Court

Superintendent Archaeologist vs Patel Harilal Khodidas Patel on 3 May, 2019

Author: R.M.Chhaya

Bench: R.M.Chhaya, S.H.Vora

          C/FA/1066/2015                                        JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 1066 of 2015
                                       With
                           R/FIRST APPEAL NO. 1067 of 2015
                                       With
                           R/FIRST APPEAL NO. 1068 of 2015
                                       With
                           R/FIRST APPEAL NO. 1069 of 2015

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE R.M.CHHAYA

and

HONOURABLE MR.JUSTICE S.H.VORA

==========================================================

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 ?

==========================================================
                   SUPERINTENDENT ARCHAEOLOGIST
                                Versus
                PATEL HARILAL KHODIDAS PATEL & 1 other(s)
==========================================================
Appearance:
MS TRUSHA K PATEL(2434) for the Appellant(s) No. 1
MR AMIT C NANAVATI(1384) for the Defendant(s) No. 1,1.1,1.2,1.3,1.4
MR TIRTHRAJ PANDYA, ASSISTANT GOVERNMENT PLEADER for the
Special Land Acquisition Officer
RULE SERVED(64) for the Defendant(s) No. 2
==========================================================

    CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA


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       C/FA/1066/2015                                               JUDGMENT



        and
        HONOURABLE MR.JUSTICE S.H.VORA

                        Date : 03/05/2019
                        ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied with the judgment and award dated 31.3.2010 passed by the Reference Court in Land Acquisition Reference nos.830 of 2006 to 833 of 2006, the appellant - acquiring body has preferred these appeals under Section 54 of the Land Acquisition Act, 1894 read with Section 96 of the Code of Civil Procedure, 1908.

2. All the appeals relate to the same land acquisition proceedings and the evidence is common and all the appeals are heard together and are disposed of by this common judgment and order.

3. The facts as narrated in First Appeal no.1066 of 2015 are taken as basis of this judgment.

3.1 That, the lands belonging to the respondents ­ original owners were acquired for the public purpose of developing the area around Rani Ki Vav (Ranki Vav) by the appellant. The appellant undertook the following procedure:­ Page 2 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT Section 4 notification was 29.8.1996 issued Section 6 notification was 4.11.1997 issued Award under Section 11 was 8.10.1999 passed 3.2 The Land Acquisition Officer, by the award dated 8.10.1999, determined the market value of the lands of the respondents - original owners acquired at Rs.6/­ per sq. mtr.

3.3 As the respondents - land owners were not satisfied with the award, they filed application for Reference as provided under Section 18 of the Act, which was referred to the Reference Court as Land Acquisition Reference nos.830 of 2006 to 833 of 2006 and claimed Rs.250/­ per sq. mtr.

3.4 The respondents ­ original owners examined one of the original land owners - Bhargav Harilal Patel at Exh.28 in Land Acquisition Reference no.832 of 2006. The land owners also relied upon the documentary evidence of village form no.7/12 being Exhs.29 to 32 and also relied upon the previous award of the lands acquired for North Gujarat University in Land Acquisition Reference no.246 of 2001 at Exh.33. The State Government examined the Deputy Collector - Mr. Anil Chaudhary at Page 3 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT Exh.32 and the appellant and the State Government relied upon the documentary evidence being Exhs.35 to 40. As per the record, Exhs.35, 36 and 37 were Sammatipatrak; whereas, Exhs.38 and 39 were papers pertaining to Regular Civil Suit no.156 of 1999 and Exh.40 was the chart showing the sale instances. The Reference Court, after appreciating the evidence on record, considered the previous award at Exh.33 passed in Land Acquisition Reference no.246 of 2001 as the most comparable instances and did not believe the other documentary evidence especially produced by the appellant and the State Government and considering the fact that neither vendor nor purchaser have been examined, the sale deeds came to be discarded by the Reference Court. The Reference Court, after appreciating the evidence on record, determined the market value of the land under acquisition at Rs.211/­ per sq. mtr. and thus, partly allowed the Land Acquisition Reference and awarded Rs.205/­ per sq. mtr. additionally. Being aggrieved by the said judgment and award, the acquiring body has preferred these appeals.

4. Heard Ms. Trusha K. Patel, learned Central Government Counsel for the appellant, Mr. Amit C. Nanavati, learned advocate for the original Page 4 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT land owners and Mr. Tirthraj Pandya, learned Assistant Government Pleader for the Special Land Acquisition Officer.

5. Ms. Trusha K. Patel, learned Central Government Counsel for the appellant has contended as under:­ 5.1 That, the Reference Court has wrongly considered the previous award at Exh.33 to be a comparable instance. It was contended that as per the certificate issued by the Chief Officer, Patan Nagarpalika at Exh.42, the distance between Ranki Vav and the University is about 3.75 kms. and therefore, the Reference Court has wrongly believed the previous award at Exh.33 to be the comparable instance.

5.2 Ms. Patel, relying upon the deposition of the Special Land Acquisition Officer at Exh.32 and the table indicating the details of sale deed which was considered by the Special Land Acquisition Officer at Exh.40, contended that the Reference Court has failed to appreciate the evidence adduced by the appellant and has wrongly determined the market value of the land under acquisition at Rs.211/­ per sq. mtr.

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C/FA/1066/2015 JUDGMENT 5.3 Ms. Patel further contended that the Reference Court has also not examined the difference of of geographical location of the lands acquired under the previous award at Exh.33 and the lands under acquisition in the present appeals and without examining the geographical location, potentiality of development, fertility and such relevant factors, has straightway adopted the market value of the lands acquired for the purpose of North Gujarat University under the previous award and committed an obvious error. It was further contended that even while taking the base of the price as determined by the Reference Court in previous award at Exh.33, the Reference Court has given more rise than required. It was contended that the gap between Section 4 notification in the instance case and the date of Section 4 notification in case of the lands acquired for the North Gujarat University is not properly calculated and the Reference Court has committed an error in giving effect to the same and on that ground alone, it was contended that the impugned judgment and award being erroneous, deserves to be quashed and set aside by allowing the appeals.

6. Mr. Tirthraj Pandya, learned Assistant Government Pleader for the Special Land Acquisition Officer has adopted the arguments Page 6 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT made by Ms. Trusha K. Patel, learned Central Government Counsel for the appellant.

7. Per contra, Mr. Amit C. Nanavati, learned advocate for the original land owners has supported the impugned judgment and award. It was contended that the Tribunal has rightly adopted the previous award at Exh.33 to be the most comparable instance and has rightly determined the value of the land under acquisition at Rs.211/­ per sq. mtr. It was also contended that the Reference Court has rightly appreciated the evidence on record and on the principle of just compensation, has rightly determined the market value of the lands under acquisition at Rs.211/­ per sq. mtr.

7.1 Mr. Nanavati further contended that the appellant as well as the State Government has not proved the sale instance relied upon by them, more particularly at Exhs.35 to 40. It was also contended that the lands acquired for the public purpose of North Gujarat University were situated at the adjoining Village Samalpati; whereas, the lands under acquisition are within the limits of Patan town and are more valuable. It was further contended that thus, the Reference Court has committed no error in determining the market Page 7 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT value of the lands under acquisition at Rs.211/­ per sq. mtr. It was also contended that the potentiality of development in and around the lands under acquisition is far higher and greater than the lands which were acquired for the purpose of North Gujarat University. It was further contended that when the lands were acquired for the purpose of North Gujarat University, Village Samalpati was adjoining village; whereas, the lands under acquisition are very much part of Patan town with historical importance, which enhanced the potentiality of development and according to Mr. Nanavati, the Reference Court ought to have determined the market value of the lands under acquisition at Rs.250/­ per sq. mtr. as claimed by the land owners. It was therefore contended that the appeals, being merit­less, deserve to be dismissed.

8. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.

9. We have considered the submissions made and have also perused the record and proceedings. Upon considering the oral deposition of one of the claimants at Exh.28 as well as the other documentary evidence produced by the land owners at Exhs.29 to 32 being Village Form Page 8 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT no.7/12, the Reference Court has not relied upon the same while determining the market value of the lands under acquisition. The land owners had adduced further documentary evidence by way of previous award for the lands acquired by a notification dated 23.5.1987 for the purpose of North Gujarat University situated at Village Samalpati being Exh.33. Even considering and re­appreciating the evidence led by the appellant as well as the Special Land Acquisition Officer, the extracts of the chart of sale instances, more particularly at Exh.42 is also not rightly considered by the Reference Court as a comparable instance as admittedly no vendor or the purchaser have been examined. Upon re­ appreciating the evidence on record, the Reference Court, on one comparable instance, namely, the previous award at Exh.33 and upon reappreciation of the evidence as a whole led by the parties before the Reference Court, we find that the Reference Court has committed no error in considering the previous award at Exh.33 to be the comparable instance.

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, Page 9 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT 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 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:­ Page 10 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT "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 Deesa­ Patan­Chanasma­Viramgam 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, industrial 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 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 Page 11 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT 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 Page 12 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT instance.

13. The facts indicate that in the case on hand, 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 Page 13 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT 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 and as observed hereinabove, the market price of the lands under acquisition would come to Rs.192.50 per Page 14 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019 C/FA/1066/2015 JUDGMENT 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. The appeals are therefore partly allowed to the aforesaid extent. The impugned judgment and award stands modified to the aforesaid extent only. The Reference Court shall refund the amount as per this judgment to the appellant forthwith. However, there shall be no order as to costs in these appeals.

(R.M.CHHAYA, J) (S.H.VORA, J) MRP Page 15 of 15 Downloaded on : Mon Jul 01 01:22:58 IST 2019