Gujarat High Court
C/Fa/508/2017 Cav Judgment vs Special Land Acquisition Officer & on 4 August, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, A.Y. Kogje
C/FA/508/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 508 of 2017
With
FIRST APPEAL NO. 522 of 2017
TO
FIRST APPEAL NO. 523 of 2017
With
FIRST APPEAL NO. 525 of 2017
With
FIRST APPEAL NO. 21 of 2017
TO
FIRST APPEAL NO. 370 of 2017
With
FIRST APPEAL NO. 1113 of 2017
TO
FIRST APPEAL NO. 1385 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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 ?
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HC-NIC Page 1 of 55 Created On Sat Aug 05 00:14:36 IST 2017
C/FA/508/2017 CAV JUDGMENT
GUJARAT MINERAL DEVELOPMENT CORPORATION LTD.....Appellant(s)
Versus
SPECIAL LAND ACQUISITION OFFICER & 1....Defendant(s)
Appearance:
MR KM PATEL Senior Advocate with MR PREMAL R JOSHI, Advocate for the
Appellant(s) No. 1
MR RUTVIJ OZA AGP for the Defendant(s) No.1
MR MAHINDRA R ANAND Senior Advocate with MS ARCHANA U AMIN & MR
HIMANSHU J AMIN, Advocates for the Defendant(s) No.2-2.3, 2.5-2.14
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 04/08/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) The present judgment shall govern two sets of First Appeals, each set consisting of individual First Appeal, which are all directed against the judgment and award dated 07.05.2016 rendered by the learned Principal Senior Civil Judge, Bhavnagar, in the land reference cases pertaining to the acquisition in Villages Malpur, Thordi, Rampar, Taluka Ghoga, District Bhavnagar. All the references were disposed of by common judgment and award. However, all the contentions and averments between the rival parties are similar. Hence on account of commonality of the subject matter, these First Appeals arising out of the impugned judgment and award dated 07.05.2016 are taken up for hearing and final disposal together with the consent of all the parties.
2 Out of two sets of First Appeals, First Appeals No.1113 to Page 2 of 55 HC-NIC Page 2 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT 1385 of 2017 are filed by the claimants and First Appeals No.508 of 2017, 522 of 2017, 523 of 2017, 525 of 2017, and First Appeals No.21 to 370 of 2017 are filed by the acquiring body, viz. GMMDC.
3 The facts necessary for disposal of these appeals are as under:
3.1 On 02.09.2003, the Land Acquisition Officer published Notification under section 4 of the Land Acquisition Act, 1894 for the purpose of acquiring lands of Village Malpar, Taluka Ghoga, District Bhavnagar, for the purpose of GMMDC. As the said lands had reserve deposits of lignite, which is an important mineral used as fuel in various industries, Notifications under section 6 of the Land Acquisition Act in this connection were issued on 25.02.2004 and acquisition awards under Section 11 of the Act by the competent officer were passed on 20.02.2006.
3.2 Dissatisfied with the compensation awarded by the Land Acquisition Officer, which is Rs.14.50 per sq meter for Jirayat land and Rs.18/ per sq meter for bagayat land, the claimants preferred reference.
In the reference under Section 18 of the Act before the Reference Court, initially the claim of the claimants was Rs.62.5 per sq. meter. Thereafter, by causing amendment, it was enhanced to Rs.1000/ per sq. meter for irrigated land and Rs.1064/ per sq meter for nonirrigated land.
3.3 The Reference Court by its judgment and award dated 30.12.2013 was pleased to enhance the market price by Rs.4/ which comes to Rs.18/ per sq meter for nonirrigated land and Rs.22/ per sq meter for irrigated land.
Page 3 of 55HC-NIC Page 3 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT 3.4 Being aggrieved by the market price, thus fixed by the Reference Court, the claimants preferred First Appeal No.1460 of 2014 and allied appeals before this Court. As the claimants raised demand for adducing additional evidence, with the consent of the GMMDC, First Appeal came to be disposed of by remanding the case to the Reference Court to reconsider the issue after the claimants are permitted to adduce additional evidence.
4 It appears that upon remand, the additional evidence was led by the claimants in the form of oral deposition by one witness at Exh.95, one expert witness (oral deposition), viz. former Geologist in Government service as an expert at Exh.104, four documents being Exhibits 81, 82, 83 and 84, which pertain to fixing of price by District Valuation Committee. On behalf of the GMMDC, Assistant Manager of the Corporation was examined as a witness.
5 After recording all the additional evidence, the learned Principal Senior Civil Judge, Bhavnagar proceeded to declare the award, whereby the price fixed by the learned Civil Judge was Rs.60/ per sq meter for both irrigated and nonirrigated lands in addition to the price fixed on 20.02.2006.
6 Heard Mr. M.R.Anand, learned Senior Advocate assisted by Ms. Archana Amin, learned advocate for the claimants, and Mr. K.M.Patel, learned Senior Advocate assisted by Mr. Premal R. Joshi, learned advocate for GMMDC. Learned Senior Advocate Mr. Anand for the claimants submits that the market value fixed by the Reference Court is quite inadequate and submits that the Reference Court ought to have considered the market value of the land at Rs.110/ per sq meter. He submits that the claim of the claimants to fix the market value at Page 4 of 55 HC-NIC Page 4 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT Rs.150/ is based on the documentary evidence which is in the form of report of the District Valuation Committee which is dated 01.07.1998, where the value of the adjoining land of Block No.93 is fixed at Rs.116/ per sq. meter. Mr.Anand also relied upon the report of the District Valuation Committee with respect to its meeting dated 20.07.2015, which was for the adjoining village Budhel and the price determined is Rs.160/ per sq meter.
7 Mr. M.R.Anand, learned Senior Advocate for the claimants submitted that the price fixed is also inadequate, if it is compared with the order dated 20.02.2002 passed by the Collector (Exh.83), wherein price of the land bearing Survey No.215/3 is determined at Rs.171/ per sq meter. He also relied upon the valuation fixed by the Valuation Committee on 20.02.1996 for Survey No.135 of Village Malpar (Exh.84), whereby the price fixed was at Rs.110/ per sq meter. He submits that considering the difference of period between 1996 and 2003, the value would definitely be more than Rs.150/ per sq meter.
7.1 Learned Senior Advocate Mr.Anand for the claimants extensively relied upon the report Exh.100 of the expert, who was examined vide Exh.104 on behalf of the claimants. It is submitted that this witness was indeed an expert in the field as he had discharged his duties as Geologist with the Government itself and therefore, his evidence and the report ought to have been given sufficient weightage by the Reference Court. He submits that considering the report of the expert, lignite deposit under the lands sought to be acquired was huge to the tune of 84.88 lac MT from which the GMMDC is expected to earn money which is in astronomical figures. Therefore, considering the profit that is going in the way of the Government, the claim of the claimants fixed at the rate of Rs.150/ is not only reasonable, but is Page 5 of 55 HC-NIC Page 5 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT minimal, if the figures are to be compared. Mr.Anand further submits that if the Government and GMMDC are to enrich themselves out of the lands belonging to the claimants, then the claimants are entitled to fair treatment and that fair treatment will only materialize if the price of the land is fixed at Rs.150/ per sq meter. He further submits that if the expert's report is to be believed, then over and above deposits of lignite, another mineral, namely, bentonite is also found from the land sought to be acquired, which is also to be extracted by the GMMDC and the GMMDC is to get commercial value for such extract.
7.2 Mr. M.R.Anand, learned Senior Advocate submits that in absence of any evidence led by GMMDC to challenge the evidence of the claimants, the Reference Court ought to have relied upon the evidence of claimants to arrive at just, fair and reasonable market value of the land in question at Rs.150 sq. meters.
7.3 Mr. M.R.Anand, learned Senior Advocate submitted that the case of the claimants is supported by the evidence and he referred to the evidence recorded on behalf of the claimants vide Exh.24 to contend that the evidence relied upon by the Land Acquisition Officer on the sale deeds of the year 1999 of Village Khadsalia is inappropriate as Village Khadsalia is located at more than 20 KMs from the lands in question. The crossexamination of witness at Exh.24 would indicate the distance as well as the fact that the lands which were the subject matter of the sale deeds were much smaller in area.
7.4 To support his contention about the reason for acquisition and the potentiality of the land to justify acquisition, Mr.Anand referred to Exh.43 being oral evidence of the representative of GMMDC emphasizing that it was incumbent upon the State to assess valuation of Page 6 of 55 HC-NIC Page 6 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT the lands which are having deposits of lignite. From this deposition, he has also indicated that the land has potential for development considering its proximity to the National Highway, proximity to well developed city of Bhavnagar and the potentiality of development of industries in and around on account of existence of Alang Ship Breaking Yard.
7.5 Thereafter, Mr. M.R.Anand, learned Senior Advocate has taken this Court to the report of the Expert Geologist at exhibits 105 and
106. Relying upon this report he has submitted that potentiality of the land which is full of lignite deposits is very high and that the Government and the GMMDC are likely to earn tremendous profits and hence it would be reasonable to assess the lands in question at rates higher than what was done by the Land Acquisition Officer and the Reference Court. He submits that considering the fact that the report consists of the facts and figures from the GMMDC itself, such report must be accepted in its entirety and must be made a basis for arriving at marketable value of the land. According to this report, earning per hectare of GMMDC is to be estimated, ranging from 2.6 crores to Rs.3.38 crores. Such a figure is based on mining plan approved by the Government Department. In such a situation it is reasonable for the claimants to expect better appreciation of their lands.
7.6 Mr. M.R.Anand, learned Senior Advocate submits that even the valuation of the land made by the District Valuation Committee is also an important and reliable piece of evidence. He submits that the constituent members of such Valuation Committee are invariably the Government officers. Therefore, at least the Government and GMMDC cannot disregard such report. According to him market value, thus, indicated in the documentary evidence at Exhibits 81 to 84 should be the Page 7 of 55 HC-NIC Page 7 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT relevant consideration for fixing the market value.
7.7 In support of his contentions, Mr. Anand has referred to the following judgments:
[i] To support his contention that reliance can be placed on the valuation report rather than undertaking exercise of guess estimate. In this context he relied on a decision of the Supreme Court in the case of Rajesh Valel Puthuvalil and another Vs. Inland Waterways Authority of India and another, reported in (2014) 16 SCC 394, wherein in para 4 it is held that, "4. Admittedly, the total area of the building was 758 Sq. ft. and the Land Acquisition Officer awarded a sum of Rs.1,43,430/ towards value of structure. No records were produced to show as to how the said valuation was made by the respondents. In the Reference Court the appellants herein/claimants took out a Commission to fix the value of the building and the Commissioner was assisted by AW2 a retired Assistant Executive Engineer who valued the building and prepared Ext.C3 Valuation Report and Ext.C4 Plan. Ext.C1 and C2 are Mahazar prepared by the Commissioner and his Report respectively. The value of the building was assessed at Rs.4,93,000/ and as the building was 12 years old, depreciation was calculated and after deduction the net value was arrived at Rs.4,45,000/ and the Reference Court accepted the same. The High Court held that having regard to the cost of construction of the building in the year 1997 the value of construction fixed by the Reference Court is on the higher side and refixed the value of the building at Rs.3,50,000/ on guess estimate. In the facts of the case, we find force in the submission of the learned counsel for the appellants that guess estimate is not warranted when material evidence in the shape of Ext.C3 Valuation Report is available on record. As already seen, there is no rebuttal Page 8 of 55 HC-NIC Page 8 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT evidence adduced by the respondents insofar as the valuation of the building is concerned and the High Court committed error in resorting to guess estimate for reducing the value of the building and the impugned judgment in this regard is liable to be set aside."
[ii] Mr.Anand relied on the decision of the Supreme Court in the case of Punjaji Gopalji and others Vs. Special Land Acquisition Officer and others, reported in (2016) 13 SCC
84. The said decision is relied upon for the purpose of emphasizing the importance of expert opinion in fixing the market value of the land in question. Paras 8 to 12 of the said judgment are relevant and read as under:
"8. The other two relevant document are the report of the Chief Architect and Town Planner, Roads & Buildings Department dated 11th September, 2002 which was submitted to the Special Land Acquisition Officer in response to the latter authority's query made by letter dated 22nd July, 2002 (Exhibit 26). In the said report, the Chief Architect and Town Planner had mentioned that the minimum market value of the land in question would be Rs.2,000/ per square meter. On being asked to justify the assessment of the value of the land made by him at Rs.2,000/ per square meter, a letter dated 16th November, 2002 (Exhibit 32) was issued giving reasons i.e. the location of the land; the facilities available; the potentiality of the lands; and also the fact that for adjacent areas covered by Sector 1 and 2 of Infocity the land price fixed for allotment for residential purpose was between Rs.3,060/ and Rs.3,340/ per square meter. Though the learned counsel for the appellants landowners has sought to rely on another Resolution of the State Authority for allotment of about 100 acres of land near River Sabarmati to the Indian Air Force at the rate of Rs.7,200/ per square meter, we do not consider it proper to take into account the said document as the same was not a part of the proceedings before the Reference Court and the prayer before the High Court to take the same on record had remained Page 9 of 55 HC-NIC Page 9 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT unanswered. That apart, the said Resolution being dated 3rd October, 2003 is subsequent to the Section 4 Notification in the present case.
9. Even going by the Government Resolution dated 16th March, 2001; the report of the Chief Architect and Town Planner dated 11th September, 2002 and subsequent letter dated 16th November, 2002 we do not see how the Reference Court can be faulted in relying on the said documents in determining the value of the land at Rs.3,500/ per square meter. The aforesaid rate i.e. Rs.3,500/ per square meter is, in fact, substantially borne out from the letter of the Chief Architect and Town Planner dated 16th November, 2002 (Exhibit 32) insofar as the reference in the said letter to the rate of allotment for land in Sector 1 and 2 of Infocity is concerned. The price of acquisition mentioned in Exhibits 72/74 also lends credence to the above quantification.
10. The above apart, what cannot be ignored is that from the evidence of witness No.2 examined on behalf of the Land Acquisition Officer it is clear and evident that the rates of allotment of the 192.5 acres of land to the Infocity, which formed the basis of the order of the High Court, were concessional rates. This is a fact that has also been acknowledged by the High Court in the impugned order. In fact, the High Court had thought it proper to grant enhancement at the rate of onethird (1/3rd) of the market price on the said account.
11. We do not see how the High Court, on the reasons assigned, could have refused to consider the aforesaid vital evidence on record and instead rely on the rates of allotment of land in the Infocity. The rates of allotment mentioned earlier are strikingly disproportionate to the market value thereof at a mere glance, irrespective of the evidence forthcoming on this score, details of which have also been noticed. The aforesaid being the sole basis of the High Court's order and the other evidence on record being what has been noticed above, we are of the view that the basis on which the High Court had come to the conclusion that the value of the land should be Rs.770/ per square meter is plainly unacceptable. Going Page 10 of 55 HC-NIC Page 10 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT by the materials on record as stated above and the opinion of the Chief Architect and Town Planner and also the fact that the rates of allotment of Infocity land are concessional rates we are of the view that the High Court was not justified in reversing the compensation determined by the Reference Court. Accordingly, insofar as the compensation is concerned, we deem it proper to set aside the order of the High Court and restore the compensation awarded by the learned Reference Court.
12. We must, however, add herein that the valiant attempt on the part of the learned counsel for the Special Land Acquisition Officer to salvage the order of the High Court, even it be partially, by seeking the "standard deduction" of onethird (1/3rd) from the price of Rs.2,000/ per square meter mentioned in the report of the Chief Architect and Town Planner dated 11th September, 2002 cannot have our approval and the determination of the rate of compensation above is not as per any specific exemplar but has been found to be reasonable on a cumulative consideration of the materials on record. Viewed thus, the reliance placed by the learned counsel on the decision of this Court in Radha Mudaliyar v. Special Tahsildar (Land Acquisition), Tamil Nadu Housing Board [(2010) 13 SCC 384] is not appropriate."
[iii] For the purpose of potentiality of the land being relevant consideration, Mr.Anand relied on decision of the Supreme Court in the case of Atma Singh (dead), through LRs and others Vs. State of Haryana and another, reported in (2008) 2 SCC 568, wherein in para 5 it is held that, "5. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its Page 11 of 55 HC-NIC Page 11 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like, water, electricity, possibility of their further extension, whether near about Town is developing or has prospect of development have to be taken into consideration. See Collector V. Dr.Harisingh Thakur, Raghubans Narain Sing V. U.P. Govt. and Administrator General, W.B. V. Collector, Varanasi. It has been held in Kausalya Devi Bogra V. Land Acquisition Officer and Suresh Kumar V. Town Improvement Trust that failing to consider potential value of the acquired land is an error of principle."
He also drew attention of this Court to paras 14 and 15 of the judgment in the case of Atma Singh (supra), which read as under:
"14. The reasons given for the principle that price fetched for small plots cannot form safe basis for valuation of large tracks of land, according to cases referred to above, are that substantial area is used for development of sites like laying out roads, drains, sewers, water and electricity lines and other civic amenities. Expenses are also incurred in providing these basic amenities. That apart it takes considerable period in carving out the roads making sewers and drains and waiting for the purchasers. Meanwhile the invested money is blocked up and the return on the investment flows after a considerable period of time. In order to make up for the area of land which is used in providing civic amenities and the waiting period during which the capital of the entrepreneur gets locked up a deduction from 20% onward, depending upon the facts of each case, is made.
15. The question to be considered is whether in the Page 12 of 55 HC-NIC Page 12 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT present case those factors exist which warrant a deduction by way of allowance from the price exhibited by the exemplars of small plots which have been filed by the parties. The land has not been acquired for a Housing Colony or Government Office or an Institution. The land has been acquired for setting up a sugar factory. The factory would produce goods worth many crores in a year. A sugar factory apart from producing sugar also produces many byproduct in the same process. One of the byproducts is molasses, which is produced in huge quantity. Earlier, it had no utility and its disposal used to be a big problem. But now molasses is used for production of alcohol and ethanol which yield lot of revenue. Another byproduct begasse is now used for generation of power and press mud is utilized in manure. Therefore, the profit from a sugar factory is substantial. Moreover, it is not confined to one year but will accrue every year so long as the factory runs. A housing board does not run on business lines. Once plots are carved out after acquisition of land and are sold to public, there is no scope for earning any money in future. An industry established on acquired land, if run efficiently, earns money or makes profit every year. The return from the land acquired for the purpose of Housing Colony, or Offices, or Institution cannot even remotely be compared with the land which has been acquired for the purpose of setting up a factory or industry. After all the factory cannot be set up without land and if such land is giving substantial return, there is no justification for making any deduction from the price exhibited by the exemplars even if they are of small plots. It is possible that a part of the acquired land might be used for construction of residential colony for the staff working in the factory. Nevertheless where the remaining part of the acquired land is contributing to production of goods yielding good profit, it would not be proper to make a deduction in the price of land shown by the exemplars of small plots as the reasons for doing so assigned in various decisions of this Court are not applicable in the case under consideration."
[iv] Mr.Anand, learned Senior Advocate thereafter referred to a decision of the Supreme Court in the case of Wave Industries Page 13 of 55 HC-NIC Page 13 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT Private Limited Vs. Avtar Singh and others, reported in (2011) 14 SCC 745, and drew attention of this Court to paras 12, 13, 14 and 15, which read as under:
"12. In Lai Chand V/s. Union of India, (2009) 15 SCC 769, the Court indicated that percentage of deduction for development to be made for arriving at market value of large tracts of undeveloped agricultural land with potential for development can vary between 20 % and 75 % of the price of developed plots and observed:
(SCC pp.779 & 780, para 14 & 20) "14. The 'deduction for development' consists of two components. The first is with reference to the area required to be utilized for developmental works and the second is the cost of the development works....
20. Therefore the deduction for the 'development factor' to be made with reference to the price of a small plot in a developed layout, to arrive at the cost of undeveloped land, will be for more than the deduction with reference to the price of a small plot in an unauthorized private layout or an industrial layout. It is also well known that the development cost incurred by statutory agencies is much higher than the cost incurred by private developers, having regard to higher overheads and expenditure.
13. In Subh Ram V/s. State of Haryana, this Court held as under:
(SCC 45152, paras 2425) "24. Deduction of "development cost" is the concept used to derive the "wholesale price" of a large undeveloped land with reference to the "retail price" of a small developed plot. The difference between the value of a small developed plot and the value of a large undeveloped land is the "development cost". Two factors have a bearing on the quantum (or percentage) of deduction in the "retail price" as development cost.
Firstly, the percentage of deduction is decided with Page 14 of 55 HC-NIC Page 14 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT reference to the extent and nature of development of the area/layout in which the small developed plot is situated. Secondly, the condition of the acquired land as on the date of preliminary notification, whether it was undeveloped, or partly developed, is considered and appropriate adjustment is made in the percentage of deduction to take note of the developed status of the acquired land.
25. The percentage of deduction (development cost factor) will be applied 'fully where the acquired land has no development. But where the acquired land can be considered to be partly developed (say for example, having good road access or having the amenity of electricity, water, etc.) then the development cost (that is, percentage of deduction) will be modulated with reference to the extent of development of the acquired land as on the date of acquisition. But under no circumstances, will the future use or purpose of acquisition play a role in determining the percentage of deduction towards development cost. [Emphasis supplied] "
14. However, in Atma Singh's case, the Court, while considering challenge to the fixation of market value of land acquired for a sugar factory, held that deduction of 10% would be reasonable. Paragraphs 15 and 16 of the judgment, which contain the reasons for this conclusion are reproduced below:
"15. The question to be considered is whether in the present case those factors exist which warrant a deduction by way of allowance from the price exhibited by the exemplars of small plots which have been filed by the parties. The land has not been acquired for a housing colony or government office or an institution. The land has been acquired for setting up a sugar factory. The factory would produce goods worth many crores in a year. A sugar factory apart from producing sugar also produces many byproducts in the same process. One of the byproducts is molasses, which is produced in huge quantity. Earlier, it had no utility and its disposal used to be a big problem. But now molasses is used for production of alcohol and ethanol which yield lot of Page 15 of 55 HC-NIC Page 15 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT revenue. Another byproduct begasse is now used for generation of power and press mud is utilized in manure. Therefore, the profit from a sugar factory is substantial. Moreover, it is not confined to one year but will accrue every year so long as the factory runs. A housing board does not run on business lines. Once plots are carved out after acquisition of land and are sold to public, there is no scope for earning any money in future. An industry established on acquired land, if run efficiently, earns money or makes profit every year. The return from the land acquired for the purpose of housing colony, or offices, or institution cannot even remotely be compared with the land which has been acquired for the purpose of setting up a factory or industry. After all the factory cannot be set up without land and if such land is giving substantial return, there is no justification for making any deduction from the price exhibited by the exemplars even if they are of small plots. It is possible that a part of the acquired land might be used for construction of residential colony for the staff working in the factory. Nevertheless, where the remaining part of the acquired land is contributing to production of goods yielding good profit, it would not be proper to make a deduction in the price of land shown by the exemplars of small plots as the reasons for doing so assigned in various decisions of this Court are not applicable in the case under consideration.
16. Having regard to the entire facts and circumstances of the case, we are of the opinion that a deduction of 10% from the market value of the land, which has been arrived at by the High Court would meet the ends of justice. Therefore, the market value of the acquired land for the purpose of payment of compensation to the landowners has to be assessed at `. 1,08,000 per acre.
15. In our view, the ratio of Atma Singh's case deserves to be invoked in these appeals because the Respondents' land was acquired for a sugar factory. In other words, it will be appropriate to allow a deduction of 10% by way of development charges."
[v] Mr.Anand, learned Senior Advocate thereafter referred too Page 16 of 55 HC-NIC Page 16 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT a decision of the Supreme Court in the case of Digamber and others Vs. State of Maharashtra and others, reported in (2013) 14 SCC 406, and drew attention of this Court to para 20, which reads as under:
"20. The sale instances in relation to the small residential plots covered in the sale deeds Exhs. 2021 are situated in the same area, which sales were prior to the issuance of the preliminary notification i.e. before 14.06.1990 and it has similar topographical and physical characteristics and the fact is that the land of the appellants is acquired for the purpose of industrial development, which has got the potentiality for development of the land as industrial estate and to carve out industrial plots in it. That the acquisition of the land is for commercial purpose should be the relevant criteria for determining the market value by both the Land Acquisition Officer and reference Court placing reliance upon the sale instances even in relation to small plots of land, though it is shown from the records that the acquired land on the date of notification is an agricultural land. But the acquired land has got non agricultural potentiality as the said land was proposed by the District Collector after identifying the land for acquisition and stated that it is suitable for the purpose of industrial development. Therefore, the principles laid down at para 16 of Sabhia Mohammed Yusuf Abdul Hamid Mulla's case and the principles laid down in Viluben Jhalejar Contractor's case referred to supra laid down the criteria for determination of the market value of the acquired land."
[vi] On the point of deduction towards development charge, Mr.Anand has relied on the judgment of the Supreme Court in the case of Anjani Molu Dessai Vs. State of Goa and another, reported in (2010) 13 SCC 710, and drew attention of this Court to paras 6 and 16, which read as under:
Page 17 of 55HC-NIC Page 17 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT "Basis of compensation awarded.
6. The Land Acquisition Collector has relied upon two sale transactions in his award to arrive at the market value of the acquired lands. The first is a Sale Deed dated 30.8.1989 relating to sale of 2055 square meter of land in survey No.83 which is situated at a distance of 200 m. from the acquired lands which was sold at the rate of Rs.43.80 per square meter. The Award states that the land sold under the deed dated 30.8.1989 is a developed bharad type of land with approach road.
Therefore it is similar to the acquired lands. The description of the land and the extent of the land sold, make it clear that what was sold was an orchard land and not a residential plot. To arrive at the market value of the acquired land, the Land Acquisition Collector deducted 45% from the sale price of Rs.43.80 per square meter towards `development cost', i.e. providing approach roads and open spaces, expenses relating to development work, conversion charges etc. He thus arrived at the value of the undeveloped plot as Rs.24 per square meter. As there was a gap of 23 months between the date of the said sale and the date of preliminary notification in this case, the Collector provided a cumulative increase at the rate of 14.5% per annum over the said Rs.24/ to arrive at the market value as on 30.7.1991 as Rs.32.24 per square meter."
"16. The Land Acquisition Collector however committed a serious error in deducting 45% from the sale price disclosed by the Sale Deed dated 30.8.1989 towards the cost of development. It is well settled that deduction for development cost has to be made only where the value of a small residential / commercial / industrial plot of land in a developed layout is made the basis for arriving at the market value of a nearly large tract of undeveloped agricultural land. Where the land sold under the relied upon sale deed and the acquired lands are both are of similar nature (as in this case where both are bharad lands) the question of making any deduction towards development cost to arrive at the cost of `undeveloped land' would not arise. Such a deduction would have been necessary if the sale deed Page 18 of 55 HC-NIC Page 18 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT relied upon related to a developed residential or commercial plot. Therefore, we are of the view that the Land Acquisition Collector was not justified in making 45% deduction from the price disclosed by the Sale Deed dated 30.8.1989."
[vii] On the same point Mr.Anand relied on Supreme Court decision in the case of Bhagwathula Samanna and other Vs. Special Tahsildar and Land Acquisition Officer, Visakhapatnam Municipality, Visakhapatnam, reported in (1991) 4 SCC 506, wherein paras 12 and 13 are relied on, which read as under:
"12. The national highway runs very near to the proposed Porttrust colony. The lands acquired already for the South Eastern Railway Staff Quarters lie to the southern side of the land under acquisition. The town planning trust road runs on the northern side of the land under acquisition. The colony is in the fast developing part of the municipal town. The plot of Ac. 1.68 cents in Survey No. 2/2A acquired for the formation of the diversion road is adjacent to builtin area. The land involved in these cases is of even level and fit for construction without the necessity for levelling or reclamation. The High Court has itself concluded on the evidence that the lands covered by the acquisition are located by the side of the National Highway and the southern railway staff quarters with the town planning trust road on the north. The neighbouring areas are already developed ones and houses have been constructed, and the land has potential value for being used as building sites. Having found that the land is to be valued only as building sites and stated the advantageous position in which the land in question lies though forming part of the larger area, the High Court should not have applied the principles of deduction. It is not in every case that such deduction is to be allowed. Where the acquired land is in the midst of already developed land with amenities of roads, electricity etc., the deduction in the value of the comparable land is not warranted.Page 19 of 55
HC-NIC Page 19 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT
13. The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land. If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted. With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other amenities and is adjacent to a developed colony and in such circumstances it is possible to utilize the entire area in question as house sites. In respect of the land acquired for the road, the same advantages are available and it did not require any further development. We are, therefore, of the view that the High Court has erred in applying the principle of deduction; and reducing the fair market value of land from Rs. 10 per sq. yard to Rs. 6.50 paise per sq. yard. In our opinion, no such deduction is justified in the facts and circumstances of these cases. The appellants, therefore, succeed."
8 On behalf of Gujarat Minerals and Mines Development Corporation Limited, Mr.K.M. Patel, learned Senior Advocate submits that the Land Acquisition Officer has determined the market price which is just and proper by taking into consideration all the relevant factors existing at the time of issuance of Notification under section 4 of the Land Acquisition Act. He submits that even after order of remand by this Court in the previous round of appeals, the claimants have not been able to produce on record enough evidence to justify the market value fixed by the Reference Court. The evidence which is produced in the form of documents vide Exhibits 81 to 84 pertains to the lands which are not at Page 20 of 55 HC-NIC Page 20 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT all comparable with the lands which are under acquisition. He submits that the evidence of the Expert Geologist recorded by the Reference Court is of no help for the purpose of assessing the market value of the land. He submits that the entire report is to demonstrate the potentiality of excavation of lignite from the lands under acquisition, which in any case, cannot be termed to be of the ownership of the claimants as under
the provisions of the Bombay Land Revenue Code, minerals under the land are to be considered as the property of the State. Therefore, however rich the deposit of lignite and whatever be the projected earning from such mining activity, it can never be a consideration relevant for assessing the market value of the lands in question.
8.1 It is submitted that though by virtue of the amendment in the Acquisition Act, the claimants are permitted to amend and enhance their claim, but still their claim at Rs.1000/ per sq. meter for irrigated land and Rs.1064/ per sq meter for nonirrigated land before the Land Acquisition Officer, initially would necessarily indicate the price prevailing at the relevant point of time as no claimant would be expected to register a claim which will always be at higher side than the prevailing market rate. Mr.K.M. Patel, learned Senior Advocate therefore, submits that the Reference Court has been completely carried away by the projections made under the report of the expert to arrive at the market value of Rs.60/ per square meter.
8.2 It is submitted that the judgment of the Reference Court deserves to be interfered with inasmuch as there is a discrepancy in the judgment itself as it is not clear whether the market value assessed for the land in acquisition is Rs.60/ per square meter or is it an additional amount of Rs.60/ per square meter over and above what is awarded by Page 21 of 55 HC-NIC Page 21 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT the Land Acquisition Officer.
8.3 In support of his contention he relied upon the judgment in the case of Shawal Singh (D), through LRs Vs. Land Acquisition Collector, HP and another, reported in A.I.R. 2016 SC 5548, and drew attention of the Court to paras 6 and 7, which read as under:
"[6] From the order of the Reference Court, which is available on record, we find that the claimant in support of his claim of higher compensation had brought on record several sale deeds showing transactions between the rate of Rs.8,500/ and Rs.50,000/ per kanal. The Reference Court on consideration of the aforesaid exemplars had recorded a finding that the sale deeds in question were for very small areas ranging from 5 marlas to 1 kanal 3 marlas and that such lands had been purchased for the purposes of construction of private houses. The Reference Court had also recorded a finding that Exhibit P12, Exhibit P14, Exhibit P16 and Exhibit P20 cited by the claimant himself show that the said transaction was at the rate of near about Rs.20,000/ per kanal. Though the basis on which the Reference Court had declined enhancement of the compensation has been disagreed with by the High Court and higher compensation, as already noticed, has been awarded by the High Court, the aforesaid findings of fact remain undisturbed. The fact that the exemplar sale deeds were for small plots and the acquisition in the present case is of a large area measuring 98 kanals and 2 marlas cannot be disputed. Coupled with the above is the settled position in law that in respect of a large area acquired for a housing colony suitable deductions have to be made. The same has not been taken into account by the High Court in awarding the higher compensation of Rs.23,115/ per kanal, a fact that must go into the process of determination of the quantum awardable.
[7] The decision of this Court in Mehrawal Khewaji Trust (Registered), Faridkot and others (supra) with regard to highest rate of comparable sales is subject to Page 22 of 55 HC-NIC Page 22 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT certain well defined and well understood exceptions apart from the necessity of proving such sales to be bona fide as indicated in the decisions of this Court. The extent of the area transferred would certainly be a relevant factor which issue stands concluded by findings of fact recorded by the learned Reference Court."
8.4 In support of his contention Mr.K.M. Patel, learned Senior Advocate submits that small pieces of land for which transaction has taken place and the value that is fixed under such transaction of small land can never be considered as reliable for fixing the market rate of large tracts of land which are falling under acquisition.
8.5 On the same point, learned Senior Advocate Mr.K.M. Patel relied on another decision of the Supreme Court in the case of Karnataka Urban Water Supply and Drainage Board and others Vs. K.S. Gangadharappa and another, reported in (2009) 11 SCC 164 and drew attention of the Court to paras 6 to 9, which read as under:
"6. The basic stand of the appellants is that no basis has been indicated by the High Court to determine the value at Rs.4,00,000/ per acre. It is pointed out that Exhs. P4 and P5 were small plots of land measuring about 30' x 50' and cannot provide a foundation for determination of the market value. Learned counsel for the respondent on the other hand supported the judgment of the High Court contending that though the price paid in respect of small plots of land may not provide a foundation but it can be taken note of and after making adjustments for development the same can provide such a foundation.
7. "12. It is (a) trite proposition that prices fetched for small plots cannot form safe bases for valuation of large tracts of land as the two are not comparable properties. The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its Page 23 of 55 HC-NIC Page 23 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued does not admit of and is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of hypothetical lay out could with justification be adopted, then in valuing such small, laid out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land required for the formation of roads and other civil amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc. are to be made. In Sahib Singh Kalha v. Amritsar Improvement Trust [1982 (1) SCC 419] this Court indicated that deductions for land required for roads and other developmental expenses can, together, come up to as much as 53 per cent. But the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the "retail" price of land and the latter the "wholesale" price.
** **
14. ... What is to be estimated therefrom is the
"wholesale" price of land. In Bombay Improvement Trust v. Mervanji Manekji Mistry, C.J. Suggested a simple rule:
(AIR pp. 42223) '... Valuation cases must be dealt with just as much from the point of view of the hypothetical purchase as of the claimant. The valuation itself must often be more or less a matter of guesswork. But it is obviously wrong to fix upon a valuation which, judged by everyday principles, no purchaser would be likely to give.
.... I have always been adverse to elaborate hypothetical calculations which are no more likely to lead to a fair conclusion than far simpler methods. But, in any event, no harm can be done by testing a conclusion arrived at in one way by a conclusion arrived at in another.... A Page 24 of 55 HC-NIC Page 24 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT very simple method of valuing land wholesale from retail prices is to take anything between one and half one third, according to circumstances, of the expected gross valuation, as the wholesale price."
(emphasis in original)
8. "16. '6. Where (a) large area is the subject matter of acquisition, rate at which small plots are sold cannot be said to be a safe criterion. Reference in this context may be made to three decisions of this Court in The Collector of Lakhimpur v. Bhuban Chandra Dutta, Prithvi Raj Taneja Vs. State of MP and Kausalya Devi Bogra V. Land Acquisition Officer.
7. It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating Court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices.
8. In Suresh Kumar v. Town Improvement Trust, in a case under the Madhya Pradesh Town Improvement Trusts Act, 1960 this Court held that the rates paid for small parcels of land do not provide a useful guide for determining the market value of the land acquired. While determining the market value of the land acquired it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. It is an accepted principle as laid down in the case of Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam (AIR 1939 P.C. 98) that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to receive from the willing purchaser. While considering the market value, disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must be disregarded alike; neither must be considered as acting under any compulsion. The value of the land is not to be estimated as its value to the Page 25 of 55 HC-NIC Page 25 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT purchaser. But similarly this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion may always be taken into consideration for what it is worth. Section 23 of the Act enumerates the matters to be considered in determining compensation. The first criterion to be taken into consideration is the market value of the land on the date of the publication of the notification under Section 4(1). Similarly, Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining the compensation. A safeguard is provided in Section 25 of the Act that the amount of compensation to be awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. Value of the potentiality is to be determined on such materials as are available and without indulgence in any fits of imagination. Impracticability of determining the potential value is writ large in almost all cases. There is bound to be some amount of guess work involved while determining the potentiality.
9. It can be broadly stated that the element of speculation is reduced to minimum if the underlying principles of fixation of market value with reference to comparable sales are made:
[i] when sale is within a reasonable time of the date of notification under Section 4(1);
[ii] it should be a bona fide transaction;
[iii] it should be of the land acquired or of the land adjacent to the land acquired; and [iv] it should possess similar advantages."
10. It is only when these factors are present, can it merit a consideration as a comparable case (See The Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty (AIR 1959 SC 429).
These aspects have been highlighted in Ravinder Narain and Anr. V. Union of India, SC pp. 48384, para 610.
17. The deduction to be made towards development Page 26 of 55 HC-NIC Page 26 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT charges cannot be proved in any straitjacket formula. It would depend upon the facts of each case.
9. It is right as contended by learned counsel for the respondents that deductions can be made for development. But the deductions have to be made from some definite figure. In the instant case the High Court has not indicated any basis but has come to an abrupt conclusion that the claim of the owners for enhancement has to be accepted but not for Rs.9,00,000/ per acre as claimed but at Rs.4,00,000/ per acre. Market value has a definite concept and it cannot be evaluated without any foundation or basis."
8.6 On the point of deduction towards development charge in such cases, sale deeds of smaller pieces of land, if found reliable and sufficient can be utilised for the purpose of arriving at market value of large tracts of land. In this connection Mr.K.M. Patel, learned Senior Advocate relied on a decision of the Supreme Court in the case of K. Vasundara Devi Vs. Revenue Divisional Officer (LAO), reported in (1995) 5 SCC 426. He laid emphasis on paras 3 and 5 of the said decision, which read as under:
"3. Shri K. Madhava Reddy, the learned senior counsel for the appellant placing reliance on Vijay Kumar Moti Lal Vs. State of Maharashtra, [(1981)2 SCC 719] and Special Land Acquisition Officer, Vishakapatnam vs. Smt. A. Mangala Gowri, [(1991) 4 SCC 218] contended that this Court had upheld deduction of uniform rate of 1/3rd is required for developmental charges. The High Court, therefore, was not right in deducting 40% of value towards developmental charges. We think that the contention is not wellfounded. The High Court has noticed in its judgment thus :
"However, as the sales under Exs. X1 to X3 are for very small extents when compared to the lands under acquisition and the acquisition is meant for the Page 27 of 55 HC-NIC Page 27 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT housing scheme of housing board, necessary deduction will have to be given for developmental charges and also for taking into consideration the sales which are for smaller plots while considering the fixation of market value for the lands under acquisition which are in a large extent."
"5. In Bhagwathula Samanna and Others Vs. Special Tahsildar and Land Acquisition Officer, Vishakapatnam Municipality, [AIR 1992 SC 2298], this Court had held that since lands are in developed area, no deduction towards developmental charges be made. In Vijay Kumar Motil Lal's and Mangal Gauri case [supra], the only question was regarding deduction for developmental charges. Sales relating to smaller pieces of land when found to be germane Gujarat High Court deducted 60% of the value, this Court in M/s. Hasanali Khanbhai & Sons & others Vs. State of Gujarat [ (1995) 5 SCC 422], upheld the deduction of 60% by the High Court. When genuine and reliable sale deeds of small extents were considered to determine market value, the same will not form sole basis to determine market value of large tracts of land. Sufficient deduction should be made to arrive at the just and fair market value of large tracts of land. In that view of the law, we are of the considered opinion that ratio in the cases in which it was dealt with only about deduction of developmental charges of undeveloped large extent of land does not render any assistance in deciding the principle followed by the High Court in this matter. In view of the judgment of this Court in Administrator General of West Bengal's case [1988) 2 SCC 150] (supra] and all subsequent decisions, we do not think that it is a proper case for interference."
8.7 On the same point, Mr. K.M.Patel, learned Senior Advocate relied on para 5 of decision of the Supreme Court in the case of Hasanali Khanbhai & Sons and others Vs. State of Gujarat, reported in (1995) 5 SCC 422, which reads as under:
"5. It is seen that when a large track of land of 7 acres and 28 gunthas was purchased by the claimant owners in 1956 at Rs.251 per acre, in 1960 when the notification was issued what would be the reasonable and probable price which a reasonable prudent purchaser would offer when a large track of land is offered for sale in open market. In this Page 28 of 55 HC-NIC Page 28 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT case, neighbouring land was sold at the rate of Rs.960/ per acre in 1960 as against the price which is paid in 1956 at the rate of Rs.251/ per acre. In 1956, he himself valued and assessed the land that it has potentiality at the rate of Rs. 251/ per acre. It is settled law that instead of proceeding on the feats of imagination the Court has to sit in the armchair of a prudent purchaser and then consider whether a prudent purchaser would be willing to purchase such a large extent of land and if so at what price. In this case, having considered the situation of the land being far away from the outer municipal limits though situated near about the railway line, that itself would be a factor to be taken into consideration in determining the market value. Added to that, there is a possibility to impose statutory restrictions to develop the lands for building purposes. No prudent purchaser would hazard to purchase such large extent of land at the rates when small extents of lands are sold in plots. True that the purchasers hazarded to purchase lands in the neighbouring survey numbers and have taken grave risk. But it would not be safe guide to adopt the same price offered by them. Considered from this perspective and from the totality of facts on record, we are of the view that the High Court was well justified in deducting 60% of the value and giving Rs. 4/ per sq. yard. Accordingly, we do not find any justification warranting interference. The appeal is dismissed but in the circumstances, with no costs."
9 Heard learned Senior Advocates for the parties and perused record of the case in the form of documentary evidence, including paper books, various exhibits, etc. 9.1 Further, after remand of the First Appeals by this Court, following are the documentary evidence adduced by the claimants and appreciated by the learned Reference Court.
"Exhibit 81 Town Planning and Valuation Department Bhavnagar Branch Office of the Deputy Town Planning Officer, (Jr.) Bhavnagar, Bahumali Bhavan, Annexe Building, Block no. F7, Bhavnagar.
Tel. no. 423546 Page 29 of 55 HC-NIC Page 29 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT No.Ret/Ghogha/45Lot / 830 Dt. 2 /07/ 98 9 To, .... illegible....
Subject : About assessment of the demanded land of Odedra Hanubhai Fula and others for the purpose of flats illegible.....
..
of Block no. 93 paiki City Survey no. / CTC no. ..... At - Malpar - Taluka -
Ghogha District - Bhavnagar .
Valuation Date : 010798
Reference : [1] Your application no. 561/98 dtd. 130498
[2] Resolution no. JMN/3997/83/A dtd. 150498
of Revenue Department.
[3] Meeting of the Committee of District Level held
on 010798.
It is to state in continuation of the aforementioned subject that, on considering the place, condition, shape, area / frontage, level, locality and the surrounding, usage as well as the sale which could be comparable regarding the market value of the disputed land of City Survey Block 93 on C.S. no. at Malpar, Tal. Ghogha, ....illegible....
as on 010798 has been estimated as Rs. 110.00 (Rupees One Hundred Ten only) per square meter. The area of this land is about 202.00 square meters.
One copy each of the Site Plan and Sale Deed is enclosed with the said matter of this office ...illegible.... the original record is returned.
The said valuation has been finalized in the meeting of District Level Committee held on 010798 framed vide reference No.2 Enclusure : As above Sd/ illegible Deputy Town Planner (Jr.) Bhavnagar Copy To.
Superintendent, City Survey for information. Deputy Town Planning Officer, Saurashtra Zone, ...illegible....Page 30 of 55
HC-NIC Page 30 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT Exhibit 82 No. jamin/4/board corporation/2285/2014 Collector Office, Revenue Branch, Bhavnagar.
Date. 30/06/2014 Sub: To grant land to Bharat Sanchar Nigam Limited for the purpose of telephone exchange and staff quarters.
Land admeasuring 200000 Square Meter paiki Survey No. 106 of moje Budhel, TalukaBhavnagar.
Read : [1] Proposal produced vide Letter No. B2/II/GEN/MEETING/36 of General Manager, Telecom, DistrictBhavnagar dated 4/11/99.
[2] Report of Mamladar, Bhavnagar vide letter no. jamin/vashi/658/2000 dated 7/3/2000.
[3] Resolution of Revenue Department, Government of Gujarat vide No. BHRJ/1099/2390/K dated 15/1/2000 [4] Order of this office vide no. jamin4/438/2000 dated 18/3/2000 [5] Resolution of Revenue Department, Government of Gujarat vide No. BHRJ/2000000/MR17/K dated 10/08/2001 [6] Letter No. B235/Budhel/33 of Assistant General Manager, Telecom, DistrictBhavnagar dated 4/6/2002 [7] Letter of this office vide no. jamin /4/BN/illegible dated 14/10/2013 [8] Challan produced vide letter no. plg435/land corr/2013 14/56 of Assistant General Manager, Bharat Sanchar Nigam Limited, Bhavnagar dated 13/03/2014 :: Order : :
Entry was made by local officers of Telecom Department after reading proposal under reference(1) to grant land to different telecom circle of Bhavnagar District for Telephone Exchange and staff quarters. Order to grant land of Government wasteland bearing Survey No. 106 paiki 2000.00 Square Meter moje Budhel, Taluka Bhavnagar to Telephone Exchange was read. Favourable Report under reference no. (2) received after procedure of inspection by Page 31 of 55 HC-NIC Page 31 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT Mamlatdar was perused. Resolution under reference no. (3) was perused as per provision of Government. Advance possession of land bearing Survey No. 106 paiki 200000 Square Meter moje Budhel of TalukaBhavnagar has been handed over vide order of this office.
Provision has been made vide resolution under reference no. (5) to hand over advance possession of land of rural area to telephone exchange for the purpose of telephone exchange, etc. As per census of the year 1991, policy has made that the villages having population of less than 10, 000 shall allot 1000/ Square Meter land at the flat rate of Rs. 25 per Square Meter. Accordingly, more than 2000 Square Meter land is to be allotted at the rate prevailing when possession is taken. As this demand is for 200000 Square Meter land, the land is to be allotted after recovering the price of land as decided by District Valuation Committee. The assessed price of Rs. 160/ per Square Meter has been decided in District Valuation Committee dated 20/07/2005 for the land in question. Accordingly, Total price of Rs. 3,20,000/ is to be recovered for total land admeasuring 200000 Square Meter.
In the procedure to recover price as decided by District Valuation Committee, Bharat Sanchar Nigam Limited, Bhavnagar has raised issue of making payment at the rate of Rs. 25/ per Square Meter to the concerned village as population of this village is less than 10,000 in 1991 and paid Rs. 50,000/ at the rate of Rs. 25/ per Square Meter vide challan dated 2/4/2003. After reviewing the policy of Government to grant land, meeting in connection with this demand was convened with officers of Corporation to make payment of price of land to District Valuation Committee and as they agreed to make delayed payment of land with interest, demand statement has been given to pay the price of land.
In the meeting convened to assess the price of land in question on 20/07/2005, price of Rs. 160/ per Square Meter has been assessed. Accordingly, total price of Rs. 3,20,000/ is to be recovered from Corporation for the land admeasuring 200000 Square Meter. In the procedure to recover price of this land, Rs. 50,000/ has been paid vide challan dated 2/4/2003. After deducting the paid amount, Rs. 2,70,000/ was to be recovered from the Corporation up to 23/12/2005 whereas Corporation has paid Rs. 1,35,000/ vide challan dated 20/8/2007 and Rs. 1,35,000/ dated 25/11/08. Thus, fixed price of the land has been recovered. As it was stated to pay delayed price of this land, total Rs. 73588/ including Rs. 20,594/ of Rs. 52,994/ from 23/12/2005 to 20/8/2007, Rs. 1,35,000/ from 20/8/2007 to 25/11/2008 and to pay amount of conversion tax at Rs. 6/ per Square Meter vide letter of this office dated 14/10/2013, the applicant Corporation has paid due amount of Rs. 85,588/ of this case vide challan of amount of Rs. 7,71,374/ of Telephone Exchange Page 32 of 55 HC-NIC Page 32 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT which was paid together dated 12/3/2014. This challan and yadi have been produced vide a letter dated 13/03/2014 and the said challan has been received after verification of Treasury Branch, Bhavnagar.
As per order of this office under aforesaid perused reference no. (3), as possession price of advance possessed land has been paid to government, by virtue of powers vested and provisions to grant government land, order is passed to grant land bearing Survey No. 106 paiki 200000 Square Meter land of moje Budhel, Taluka Bhavnagar to Bharat Sanchar Nigam Limited for the purpose of telephone exchange and staff quarters subject to following conditions and conditions of new and undivided and restriction of sale.
Conditions : [1] As the land allotted for ancillary work of telephone exchange and staff quarter vide this order, the same cannot be used for any other purpose without prior permission and in case of not having requirement of this land, the same shall be returned to Revenue Department.
[2] The land in question has been allotted on new, undivided and restriction of sale conditions and this can cannot be converted in name of anyone by lease, mortgage, gift or any other way without prior permission.
[3] The Corporation shall have to get admeasured this allotted land at their own cost through DILR, Gandhinagar vide this order.
[4] The corporation shall have to maintain boundary marks after erecting boundary marks at their own cost.
[5] Construction on this land is to be carried out subject to construction rules of earthquake and construction rules of bodies of local government in such a way that rules of Urban Development may not be breached.
[6] To hand over advance possession of land, the land alongwith building shall be undertaken by government in such a way that conditions to hand over advance possession of land of this order and condition or conditions of this order may not be breached.
[7] As land in question has been granted on new and undivided condition, sanad in prescribed format shall have to be obtained from Mamlatdar, Bhavnagar within 30 days after making payment of stamp duty and registration fee as per Circular No. STP/2000000/2052/h.1 of Revenue Department, Gandhinagar dated 1/4/2000.
Page 33 of 55 HC-NIC Page 33 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT Dispatched by Sd/ [P.K.Solanki] Sd/ illegible Collector Chitnis to Collector Bhavnagar District Bhavnagar Bhavnagar To, The General Manager, Bharat Sanchar Nigam Ltd., CTO Building, Panvadi, Bhavnagar. Copy Forwarded : [1] Executive Magistrate, Bhavnagar. to be complied as following order [a] To make entry in concerned record of the village as per
this order and to send the certified evidences to this office.
[b] To send the matter to D.I.L.R. along with the necessary evidences of the village office for the measurement of land and rectification of record.
[c] To carry out the procedure at the concerned village office after the final measurement is received from the D.I.L.R. Bhavnagar.
[2] D.I.L.R. Bhavnagar.
for carrying out the measurement of the alloted land and for rectification of record.
[3] Deputy Collector, Bhavnagar.
[4] District Development Officer, Bhavnagar.
[5] Taluka Development Officer, Bhavnagar.
[6] Talati - cum - Mantri, Budhel.
Copy forwarded with complements :
Section Officer,
Revenue Department, A Branch,
Secretariat, Gandhinagar.
Exhibit No. 83
No. Land/4/2062/2012
Collectorate,
Revenue Branch,
Bhavnagar,
Date:01/01/2013
Page 34 of 55
HC-NIC Page 34 of 55 Created On Sat Aug 05 00:14:36 IST 2017
C/FA/508/2017 CAV JUDGMENT
Sub: To grant land under Narmada based Mahi Pipeline Yojana Government Waste Land admeasuring 53,823.00 Sq.M. bearing survey No. 215/3 paiki situated at Moje Budhel village of Bhavnagar Taluka Read: [1] The General Manager (C.), Sardar Sarovar Canal based Water Supply Yojana Proposal Letter No. PB/Land Acquisition/Budhel/1522 dated 07/10/99 [2] Mamlatdar, Bhavnagar (Rural)'s Letter No. Land/Vashi/1188/2000 dated 05/05/2000 and Letter No. Land/1357/01 dated 12/10/01 and Letter No. Land/2191/01 dated 07/12/01 [3] This office order no. Land/4/49/02 dated 18/01/2002 [4] This office letter no. Land/4/5573/05 dated 25/09/06, Letter No. Land/4/6540/05 dated 04/01/06 and Letter No. Land/4/1185/06 dated 20/03/06 [5] Revenue Department of Government, Gandhinagar's resolution no. JMN/542005/3185/A dated 22/12/06 [6] Original challan and copy of tax and cess produced by Senior Manager, Gujarat Water Infrastructure Limited, Barvala (Ghe), Taluka Barvala (Ghe), District Ahmedabad vide Letter No. GWIL/Budhel/Revenue/493 dated 17/10/07 and Letter No. G.V.E.L. /PBN.C.4/Budhel/1517 dated 26/09/12 :: O R D E R:: [1] The government waste land admeasuring 53,823.00 sq. m. bearing survey no. 215/3 paiki situated at Moje Budhel village of Bhavnagar Taluka and Bhavnagar District has been demanded for water tanks, pump house, quarters, etc. under Narmada based Mahi Pipeline Yojana vide proposal letter mentioned under reference (1). Mamlatdar, Bhavnagar was informed to produce report after inquiry in respect of demanded land. As demanded land was found open and without any encroachment vide letters mentioned under reference (3), Competent Authority, Gujarat Water Infrastructure Limited, Bhavnagar demanded advance possession of the said land vide its letter no. J.S.Budhel/Vallabhipur1/01 dated 08/10/01. If advance possession is given to the board for the works of Narmada based Mahi pipeline yojana, the board gave consent to pay interest at the rate of Page 35 of 55 HC-NIC Page 35 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT 12% on the price decided by District Valuation Committee for the period from the date of handing over of advance possession till actual date of payment. As per order dated 18/01/02 passed by this office (mentioned under reference (3)) in this regard and in accordance with provisions of revenue department's resolution no. JMN/3994/575/G dated 21/01/98, order was passed to hand over advance possession to Manager (C), Sardar Sarovar Canal based Water Supply Yojana, Gandhinagar subject to the conditions mentioned in the order. In this connection, advance possession of the land was handed over by Mamlatdar, Bhavnagar (Rural) on 20/02/02.
[2] With regard to demanded land of applicant company, as opinion of Chief Executive Officer, Bhavnagar Area Development Authority, Bhavnagar was obtained by this office's letter no. Land/4/2843/06 dated 03/07/06, it has been stated vide its letter no. BADA/Tek/2/06/Vashi/534/06 dated 28/06/06 that out of land bearing survey no. 215/3 situated at Budhel, about acre 2 guntha i.e. 8,094.00 sq.m. land is to be deducted for D.P. Road.
[3] As assessment of land in question was made, price of the land in question was assessed at Rs. 171/ per sq.m. on the basis of market value on 20/02/02 by District Valuation Committee in its meeting held on 20/07/05. Accordingly, as total price of demanded land admeasuring 53,823.00 sq.m. was Rs. 92,03,733/, land of which possession was given in advance, was finalized in the state level land valuation committee vide this office's order dated 18/01/02 and after obtaining approval orders of the government in respect of granting land to General Manager, Sardar Sarovar Canal based Water Supply Yojana Unit, Gandhinagar, proposal was forwarded to the Revenue Department of the Government vide letters mentioned under reference (5).
[4] In connection with aforesaid proposal, vide resolution dated 22/12/06 of Revenue Department of Government, State Level Valuation Committee has decided rate of Rs. 205/ per sq.m. in its meeting dated 09/03/06 for granting land to Gujarat Water Infrastructure Ltd., Bhavnagar for Narmada/Mahi pipeline yojana. Accordingly, price of the demanded land admeasuring 53,823.00 sq.m. is Rs. 1,10,33,715/ (Rupees One Crore Ten lakh Thirty Three Thousand Seven Hundred Fifteen Only). Gujarat Water Infrastructure Ltd. has acquired the possession of the land at the said price on 20/02/02. Hence, on the condition to recover interest at the rate of 8% (eight percent) from 20/02/02 till payment of money by applicant company and after recovering misc. taxes and as per provisions of department's resolution no. 1970/45 dated 17/10/47 and resolution no. LND/3956/75117/B dated 07/08/56 and subject to conditions of prevailing orders and on the condition that new Page 36 of 55 HC-NIC Page 36 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT indivisible land cannot be sold and as per recurring development yojana of Bhavnagar Area Development Authority, as land admeasuring 53,823.00 in question was to be transferred for D.P. Road, the same is granted on the condition of leaving it open permanently for the construction of the road as per rules and regulations of Bhavnagar Area Development Authority.
[5] The State Level District Valuation Committee has decided the price of the land in question at Rs. 205/ per sq.m. in its meeting held on 09/03/06. Accordingly, Senior Manager, Gujarat Water Infrastructure Ltd., Bhavnagar was informed vide this office's letter dated 13/01/07 to pay Rs. 1,10,33,715/ (One Crore Ten Lakh Thirty Three Thousand Seven Hundred Fifteen Only) price of the demanded land admeasuring 53,823.00 sq.m., amount along with interest at the rate of 8% for the period from 20/02/02 i.e. date of advance possession till payment of price, conversion tax of Rs. 16,14,690/ (Sixteen Lakh Fourteen Thousand Six Hundred Ninety only) @ Rs. 30/ per sq.m. for government land admeasuring 53,823.00/ to be granted for nonagricultural purpose, and assessment of nonagriculture and other taxes and cess from 2001 2002 to current revenue year as applicant company was handed over possession of land in question from 20/02/02. Therefore, applicant company paid Rs. 1,10,33,715/ (One Crore Ten Lakh Thirty Three Thousand Seven Hundred Fifteen Only) as price of possession in State Bank of Saurashtra, Treasury Branch, Bhavnagar through challan no. x dated 31/08/07 vide its application dated 17/10/07 mentioned under reference (6) and produced copy of original challan.
[6] Though frequent correspondence was made with applicant company in respect of payment of (1) interest amount of Rs. 48,20,227/ due to delay in payment of possession price, (2) conversion tax Rs. 16,14,690/ and (3) land revenue and tax and cess Rs. 1,65,909/, aforesaid amount has not been paid by applicant company. Therefore, demand application of the said company was filed vide this office's letter dated 23/11/10. Thereafter, as demanded land was required during drought, applicant company showed its willingness vide its letter no. GWI/land/439 dated 24/08/12 to pay due amount to Gujarat Water Infrastructure Company and requested to reopen its application. Considering re opened application dated 24/08/12 of applicant company, applicant company was informed to pay interest amount of Rs. 48,20,227/ due to delay in payment of possession price, (2) conversion tax of Rs. 16,14,690/ and (3) land revenue, tax and cess Rs. 1,65,909/ vide this office's letter no. Land/4/1773/12 dated 24/08/2012, applicant company paid total amount of Rs. 64,34,917/ including (1) interest amount of Rs. 48,20,227/ due to delay in payment of possession price, (2) conversion tax of Rs. 16,14,690/ vide challan no. x dated 03/09/2012 and (3) land revenue, tax and cess Rs. 2,20,404/ on Page 37 of 55 HC-NIC Page 37 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT 10/09/2012 in State Bank of India, Treasury Branch, Bhavnagar vide its application mentioned under reference (7). The copy of original challan and receipt have been produced.
[7] An order has been passed to hand over the advance possession of the land sought by the applicant Company subject to the conditions laid down in the order of this office dated 4/1/2006, read at 3. Hence necessary orders are required to be passed to grant the land in possession as per Rules.
It is hereby ordered to grant Government waste land bearing Survey No. 215/3 Paiki of Mauje Budhel village, Taluka Bhavnagar, District Bhavnagar, admeasuring 53823 Sq. mts. to Gujarat Water Infrastructure Limited, Bhavnagar, for the purpose of Narmada based Mahi Pipeline Scheme, with direction to recover the following taxes and cess with specific conditions mentioned hereunder, and on conditions to keep the said land open or make it open for construction of road on permanent basis as per the Rules of Bhavnagar Area Development Authority, as the said land admeasuring 53823 Sq. Mts. is covered under D.P. Road as per reformed development scheme of Bhavnagar Area Development Authority and with condition to measure the said land within one month, which is handed over on advance possession as per order dated 18/01/2002 read at Sr. No.3 and subject to prevailing orders and provisions of Resolution No 1970/45 dated 17/10/1947 and Resolution No. LND/3956/75117/B dated 07/08/1956 of the Revenue Department of Government on new undivided and restricted tenure.
Sr. Land Granted Non Local Education As per
No. agricultural fund cess periodical
Survey Area
assessment amendments
Number Sq. mts.
from
1 Survey No. 53,82300 807300 403700 605500 1/8/2012
215/3 Paiki
Conditions:
[1] Without prior permission of this office, Gujarat Water
Infrastructure Limited shall not utilize the land allotted by this order, except for water resources and its ancillary work.
[2] The land in question is granted subject to the new, undivided restricted tenure condition. Therefore, it cannot be transferred to any one by way of lease, mortgage, gift or by any other way,without prior permission.
[3] The measurement of the land in question shall have to be carried out through DILR, Bhavnagar, after paying the measurement Page 38 of 55 HC-NIC Page 38 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT fees and the permanent boundary marks of the land in possession shall have to be maintained.
[4] The instructions and provisions issued by the Government from time to time about granting the Government land shall be followed.
[5] If the land in question is granted according to new and individual condition, the sanad in prescribe proforma in this regard shall have to be obtained withing 30 days from the Mamlatdar, Bhavnagar (Rural) after paying necessary stamp duty and registration fees as per the Government Circular of the Revenue Department, No. STP1020002052. H. 1 dated 01/04/2002.
[6] At the time of any type of Breach of condition, the Collector can acquire the land under the control of the Government without paying any compensation.
Dispatched Sd/ (V.P.Patel)
(Sd/) (Illegible) Collector
Chitnis to Collector Bhavnagar District
Bhavnagar Bhavnagar
To,
Senior Manager,
Gujarat Water Infrastructure Ltd.
At. Barvala (Ghe), Dist. Ahmedabad.
Copy forwarded to:
[1] District Development Officer, Bhavanagar.
[2] Deputy Collector, Bhavanagar,
For information.
[3] Mamlatdar, Bhavanagar (Rural)
After implementation of the order and after making entry in the village record office, the certified village record should be sent and,...
1 In accordance with this order, if any amount is to be recovered from the Gujarat Water Infrastructure Ltd., that amount along with other taxes shall have to be recovered and its proof shall have to be produced to this office for its record.
2 The procedure of panchnama of handing over the possession to the concerned regarding the granted land admeasured in exact feet shall be completed within 30 days, as per the Government Resolution of Revenue Department, No. JMM/3984/1615/A dated 27/03/84 and Resolution No. JMN/3982/50828/A dated Page 39 of 55 HC-NIC Page 39 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT 24/04/1981 and the procedure should be undertaken to issue Sanad of the allotted land in prescribed proforma to Gujarat Water Infrastructure Ltd.
Exh84
No. Jamin423412003 Collector Office,
Revenue Branch
Bhavnagar
Sub : To obtain permission for sale of new tenure land liable for premium for non agricultural industrial purpose.
Land located at Moje Malpar, Ta. Ghogha, block no. 135 measuring acre 4 - 00 guntha.
Read: [1] Demand application of applicant Mr. Anopsinh Dolatsinh etc dated 19/9/94.
[2] Proposal of Deputy Collector, Bhavnagar bearing no. Jamin/Vashi/625/95, dated 3/5/95 [3] Proposal sent to the Government with letter of this office bearing No. Jamin2/2647/95, dated 29/5/95 [4] Sanction resolution of the Revenue Department of the Government bearing no. NaShaJ/2795/1146/J, dated 5/10/95.
[5] Letter of the Revenue Department of the Government bearing no. NaShaJ/2795/1146/J, dated 11/2/99 [6] Challan No. 39 dated 11/10/99, Challan no.8 dated 23/10/99 and Challan no.25, dated 4/12/99 submitted with application dated 30/12/99 of Harjivanbhai Trikambhai, resident of Bhavnagar, power of attorney holder of applicant Anopsinh Dolatsinh etc. [7] Letter of the Revenue Department of the Government bearing No. NaShaJ/2795/1146/J, dated 7/3/2003.
[8] A.G. objection raised during office inspection of the year 19992000 by A.G. Ahmedabad.
[9] (I) Challan no. 4043 dated 5/7/2002 produced vide letter no. (illegible) dated 6/9/2002 (ii) Challan no. (illegible) produced vide letter no. (illegible) dated 29/10/02 (iii) Challlan no. 3913 Page 40 of 55 HC-NIC Page 40 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT produced vide letter no. (illegible) dated 20/3/2003 of the General Manager, District Industry Center, Bhavnagar.
[10] Reports sent to the Government by the letters of this office (i) No. Jamin4/1804/2003 and (ii) No. Jamin4/1804/2003 dated 7/6/2003.
[11] Letter of the Revenue Department of the Government bearing No. (illegible)/2795/1146/J, dated 18/7/2003.
Tenure holder Shri Anopsinh Dolatsinh etc. have made application vide reference no.1 to get permission for sale of land for non agricultural industrial purpose for the land registered in account no. 39 having new and undivided tenure located in block no. 135 at Moje Maplur of Ghogha taluka of Bhavnagar district measuring acre 631 guntha paiki acre 4 - 00 guntha. For this demand, the Deputy Collector of Bhavnagar submitted proposal with the letter under reference no.2. This land in question was granted to Lt. Dolatsinh Narsang, father of the said person by the Deputy Collector, Bhavnagar vide order dated 20/6/70 for agricultural purpose as new and undivided tenure. Entry no. 284 dated 5/9/70 was made in the village record regarding the same and the land is registered in the names of the applicants jointly vide inheritance entry no. 530, dated 12/7/90. As per the demand of the applicant, if permission is granted to sell the land for non agricultural industrial use of LPG Gas refilling plant, no adverse effect would be caused and the applicant is willing to pay whatever price of the land fixed by the government and therefore positive opinion was given to grant permission. Therefore, proposal was sent to the Revenue Department of the Government vide the letter of this office under reference no. 3 regarding the same as per the provisions of the resolutions of the Government dated 16/3/82 and 17/9/84 to give permission after recovering 70 percent premium for the land.
Pursuant to said demand, it was decided with respect to the proposal sent to the government vide the sanction resolution of the Revenue Department under reference no.4 that permission can be granted to sell the land possessed by the present occupant and applicant of this case Mr Anopsinh Dolatsinh and others as new and undivided tenure located in Block no.135 of Moje Malpar, Ta. Ghogha, measuring acre 4 00 guntha for non agricultural industrial purpose of LPG Gas Refilling Plant by passing formal order by this office after recovering Rs. 44,517/ per acer or the amount decided on the date of order by Deputy Town Planner, whichever is higher for the 70 percent premium.
As per the condition of the sanction, as value of land was assessed through the Deputy Town Planner, Bhavnagar on the date of order, it Page 41 of 55 HC-NIC Page 41 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT was intimated vide his letter no. (illegible)Ghogha/251, dated 28/2/96 that the price of this land is Rs. 10000 per square meter. The applicant was informed vide the letter of this office bearing no. Jamin2/1784/96 dated 20/3/96 to pay Rs. 11,33,160/ as 70 percent premium of Rs. 16,18,80000 calculated as Rs. 10000 per square meter for total 16,18800 square meter of the land. The applicant raised objection for the price of land and made representation to reduce the price of the land. As per the report sent to the government, the government had reconsidered the price of land vide letter of the Revenue Department of the Government under reference no.5 and it was clarified that price should be recovered at the rate of Rs. 55 per square meter as decided by District Evaluation Committee and that interest should be recovered at the rate of 12% from the time the price of the land was decided by the District Evaluation Committee till the recovery of the same.
As per price decided by the letter of the government under reference no.5, the applicant was intimated vide letter of this office bearing no. Jamin4/4/822/99, dated 25/5/99 to pay Rs. 6,23,23800 as premium amount of 70% of total Rs. 8,90,34000 for total 16,18800 square meter of land. Therefore, with the application under reference no.6 the applicant produced challan no. 39 dated 11/10/99 for Rs. 2,00,00000, challan no.8 dated 23/10/99 for Rs. 2,00,00000 and challan no. 25 dated 4/12/99 for Rs. 2,23,238/, amounting to total Rs. 6,23,23800 paid in S.B.S. Treasury branch, Bhavnagar. As the applicant was informed by this office to deposit Rs. 2,55,52800/ as the interest for late payment of the premium at the interest rate of 12%, the applicant made representation at various levels of the government and submitted to waive the interest amount. In the meantime, the following objections were raised during inspection carried out in May 1999 for the land revenue (receipt) of this office by A.G. Ahmedabad.
[1] As the applicant started non agricultural use of the land in question from 18/7/96, Rs. 6,475/ as forty fold amount of non agricultural assessment should be recovered.
[2] The market price of the land in question was assumed as Rs. 55/ on 28/2/96, if 20% rise is counted for each year, the total amount comes to Rs. 11,33,16000 at the rate of Rs. 10000 for 70% premium amount. Out of which Rs. 6,23,23800 paid, should be given as set off and the remaining premium amount of Rs, 5,09,922 00/ should be recovered.
[3] Interest amount of Rs. 2,55,52800 should be recovered as interest for late payment of premium.
The government has rejected the demands of applicants for waiving Page 42 of 55 HC-NIC Page 42 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT of interest vide a letter of government read at Sr. No.7. In the procedure to recover the amount of Rs.55528/ of delayed premium from applicants, upon consent given by the applicant to pay the amount of interest from the amount of subsidy granted by District Industries Centre, Bhavnagar, as per letter by The General Manager, District Industries Centre, Bhavnagar vide Sr. No.9, the amount of Rs.160000/ vide Challan No.4046 dated 01/08/2002 and the amount of Rs.80000/ vide Challan No.3926 dated 27/10/2002 and the amount of Rs.15528/ vide Challan dated 15/01/2003, aggregating to 255528/ is paid to the government by Transfer Credit.
The particular of the payment made to the government by the applicant towards payable amount of premium Rs.623238/ and interest amount of Rs.255528/ accrued thereon due to late payment, and all details of A.G. Audit Objection read with Sr. No.10, a report issued by government by letters of this office read with Sr. No.11, a letter of government, as the said applicant has paid the amount of premium with interest thereon as per permission of the government, a guidance has been forwarded by the government that there is no objection to pass a formal order relating to permission to sell.
Therefore, the permission is hereby granted to sell the land admeasuring Acre - 4, Gunthas - 00 out of the land held on new and restricted tenure of Block No.135 of Moje: Malpar, Taluka: Ghogha belonged to joint account of Anopsinh Dolatsinh etc. to M/s. Welcome L.P.G. Bottling Pvt. Ltd. for NonAgricultural Use of L.P.G. Gas Refilling Plot for Industrial Purpose subject to conditions of the resolution and conditions mentioned hereunder.
Conditions:
[1] This permission is granted only for the restrictions of new tenure, therefore, the permission under other prevailing laws / rules / orders or any other permission which is required to be taken as per rules, shall have to be taken separately.
[2] The land in question is released from the restrictions of new tenure and the applicant / possession shall hold the said land for non agricultural use under old tenure for N.A. Purpose. Permission under Section - 65, 66 of Bombay Land Revenue Code shall have to obtained from the Competent Authority as per rules.
[3] The applicant shall have to deposit the amount of either market price paid recently or actual market price of the land in question, whichever is higher, to the Government [4] The said permission is granted subject to the permission from Page 43 of 55 HC-NIC Page 43 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT A.G. Objection by Account General, Ahmedabad and the applicant shall have to pay the amount stipulated by audit objection, if any, to the government and there shall be no objection / dispute relating to it.
[5] The order shall be implemented only after undertaking - cum
- declaration executed before Mamlatdar to abide by the aforesaid conditions and government rules prevailing from time to time.
[6] On breach of the said condition(s), the said land with construction standing thereon shall be vested unto the government without any compensation.
Certified by: Sd/(K.A. Patel)
Chitnis to Collector Collector
Bhavnagar Bhavnagar District
Bhavnagar
To,
Anopsinh Dolatsinh through
P.O.A. Holder
Chauhan Harjibhai Trikambhai
Welcome House,
Vadva Nehra Road, Bhavnagar
Copy to:
The Mamlatdar, Ghogha
The Dy. Collector, Bhavnagar
The D.D.O., Bhavnagar
The T.D.O., Ghogha
The Talati - cum - Mantri, Malpar, Ta. Ghogha Forwarded with Complements to:
The Section Officer Revenue Department, J Branch Sachivalaya, Gandhinagar."
9.2 Thus, the above documents are no doubt authentic material of office of the District Collector, Bhavnagar, which contain minutes of District Valuation Committee and head note of each of the exhibit reveal purpose for which such a decision was taken determining market value Page 44 of 55 HC-NIC Page 44 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT of the land.
Exh.81 reveals that the land was required for the purpose of constructing flats and as on 01.07.1998 value of the land is Rs.110.
Exh.82 reveals that the land was required for the purpose of telephone exchange and staff quarters of Bharat Sanchar Nigam Limited and as on 20.07.2005 value of the land is Rs.160.
Exh.83 reveals that the land was required for the purpose of Narmada based Mahi Pipeline Yojana and as on 20.02.2002 value of the land is Rs.171.
Exh.84 reveals that the land was required for obtaining permission for sale of new tenure land liable for premium for nonagricultural industrial purpose and as on 28.02.1996 value of the land is Rs.100.
9.3 Learned Reference Court has treated all the cases as a group and Land Reference Case No.197 of 2007 was taken as base and evidence led therein was treated as common for all land reference cases. As per the award dated 20.02.2006 passed under Section 11 of the Act, 1894, Land Acquisition Officer awarded Rs.14:50 per square meter for Jirayat land and Rs.18.00 per square meter for bagayat land. The Reference Court recorded contentions of claimant about cultivating land and annual yield of crop was on three different occasions. The villages are very connected having transport facilities with main district place Bhavnagar, which is not more than 8 to 10 kms. away. That surrounding areas are developed having industry and very fertile lands, and claimants Page 45 of 55 HC-NIC Page 45 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT used to receive Rs.50,000 to Rs.60,000 per year after deducting expenses from one Bigha of land. Thus, along with the above documents it was claimed that they were entitled for Rs.1,000/ per square mater towards compensation and other statutory benefits under the Act.
9.4 The Reference Court also recorded objections of GMMDC, which denied any such annual income of claimants from the agricultural yield and award passed by the Land Acquisition Officer was defended on the ground that it has taken into consideration 5 years of average sale based on sale deeds of surrounding villages. After framing the issues learned Reference Court has found that compensation awarded by the Land Acquisition Officer was not fare and adequate and additional compensation was awarded. For both the types of land viz. Bagayat and Jirayat by fixing Rs.60.00 per square meter in addition to the valuation of land determined on 28.02.2006 by the Land Acquisition Officer.
9.5 Learned Reference Court has carefully gone through Exhs.81 to 84 and report of Valuation Officer and noticed that value of minerals in the land acquired cannot be the criteria and cross examination of Ashok Satubha of his affidavit Exh.95 revealed that all the documents presented before the Reference Court were not brought on the record earlier and after discussing parameters based on judicial pronouncements viz. valuation of the land on the date of publication of notification, while taking over possession the damage that may cause to the standing crop or trees / plantation, damages to movable and immovable properties at the time of taking over possession and other factors like change of residence or place of business of the person whose land is acquired and incidental damages, types of land acquired and other such circumstances, including existing IOC plant at isolated place Page 46 of 55 HC-NIC Page 46 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT and deposition of Land Acquisition Officer vide Exh.24 along with sale deeds of the area ultimately found that earlier valuation of the land acquired was on the lower side and it deserves to be enhanced.
9.6 Learned Reference Court considered the following decisions of the Apex Court:
[a] Gafar v. Moraadbad Development Authority [AIR 2007 SCW 5372] wherein the Apex Court held that the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate.
[b] Mahesh Dattatray Thirthkar v. State of Maharashtra [AIR 2009 SC 2238] wherein also similar view, as above, was taken and such burden of proof in civil cases is that of `balance of probability' and not that of "beyond reasonable doubt".
[c] Koyappathodi M. Ayisha Umma v. State of Kerala [AIR 1991 SC 2027] wherein the Apex Court held that the methods of valuation to be adopted in ascertaining the market value of the land as on the date of the notification are; [i] opinion of experts; [ii] the price paid within a reasonable time in bonafide transaction of the purchase or sale of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages; and [iii] a number of years purchase of the actual or immediately prospective profits of the lands acquired.
[d] Viluben Jhalejar Contractor v. State of Gujarat [AIR 2005 SC 2214] wherein the general criteria was discussed about market value is ordinarily the price of the property may fetch in the open Page 47 of 55 HC-NIC Page 47 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT market if sold by willing seller unaffected by the special needs of a particular purchase. The positive and negative factors considered therein were reproduced as under:
Positive factors [i] Smallness of size, [ii] Proximity to road, [iii] Frontage on a road, [iv] nearness to developed area, [v] Regular shape; [vi] Level visavis land under acquisition, [vii] Special value for an owner of an adjoining property to whom it may have some very special advantage.
Negative factors [i] Largeness of area, [ii] Situation in the interior at a distance from the road, [iii] Narrow strip of land with very small frontage compared to depth, [iv] Lower level requiring the depressed portion to be filled up, [v] Remoteness from developed locality, [vi] Some special disadvantageous factors which would deter a purchaser.
[e] Karnataka Urban Water Supply and Drainage v. K.S.Gangadharappa [(2009)11 SCC 164] the Apex Court considered even comparable sales method for valuation of land while fixing the market value of the acquired land while fixing the market value of the acquired land, etc. The factors which merit consideration as comparable sales are as under:
It can broadly be stated that the elements of speculation is reduced to minimum if the underlying principles of fixation of market value with references to comparable sales are made;
[i] when the sale is within a reasonable time of the date of issuance of notification under Section4; [ii] it should be a Page 48 of 55 HC-NIC Page 48 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT bonafide transaction; [iii] it should be of the land acquired or of the land adjacent to the lands acquired; and [iv] it should possess similar advantages.
9.7 In addition to the above, the Apex Court in the case of Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona & Ors. [AIR 1988 SC 1652] in para 4 of the judgment considered that while disposing of reference, the following factors must be etched on the mental screen. Para 4 reads as under:
"4. The following factors must be etched on the mental screen:
[1] A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court.
[2] So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before 535 it. It is not the function of the Court to suit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court.
[3] The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
[4] The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
[5] The market value of land under acquisition has to be determined as on the crucial date of publication of the Page 49 of 55 HC-NIC Page 49 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT notification under sec. 4 of the Land Acquisition Act (dates of Notifications under secs. 6 and 9 are irrelevant).
[6] The determination has to be made standing on the date line of valuation (date of publication of notification under sec.
4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
[7] In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
[8] only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land).
[9] Even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
[l0] The most comparable instances out of the genuine instances have to be identified on the following considerations:
[i] proximity from time angle, [ii] proximity from situation angle.
[11] Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors visavis land under acquisition by placing the two in juxtaposition.
[12] A balancesheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
[13] The market value of the land under acquisition has there after to be deduced by loading the price reflected in the Page 50 of 55 HC-NIC Page 50 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT instance taken as norm for plus factors and unloading it for minus factors.
Plus factors Minus factors
1 Smallness of size 1 largeness of area
2 Proximity to a road 2 situation in the interior at a distance
from the road.
3 frontage on a road3 narrow strip of land with very small frontage compared to depth.
4 nearness to developed 4 lower level requiring the depressed
area. portion to be filled up.
5 regular shape. 5 remoteness from developed locality
6 level visavis land 6 some special disadvantageous factors
under acquisition which would deter a purchaser.
7 special value for an
owner of an adjoining
property to whom it
may have some very
special advantage.
[14] The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
[15] The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l000 sq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands Page 51 of 55 HC-NIC Page 51 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards.
[16] Every case must be dealt with on its own facts pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.
[17] xxx"
9.7 The Reference Court has not only applied the above criterion and considered all evidence surfaced on the record after remand of the case and it was also found that all villages were within the vicinity of Bhavnagar and distance was not more than 10 to 12 kms. and the Urban Development authority of Bhavnagar had jurisdiction over the land. The Reference Court by applying the well settled criteria for determination of value of the land, including opinion of Valuation Committee of the District Collector, Planning Authority, and opinion of expert, the amount awarded by enhancing Rs.60.00 per square meter of the land.
9.8 It also appears from the record that earlier Exh. 29 to Exh.38 viz. copies of sale deed for villages Malpar ranging from 29.04.1999 to 26.06.2003 were placed on record for various revenue survey numbers having different measurements of the land which also included small piece of land of 102 square meters to 32,381 square meters and price of land per square meter varies from Rs.6 to Rs.80 per square meter. Exh.81 to Exh.84 placed on record after remand of the appeals by the High Court and appreciated by the trial court are about allotment of the land by the Government authority for the purposes specified therein and reliance placed upon such authentic government Page 52 of 55 HC-NIC Page 52 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT documents by learned trial Judge cannot be said to be contrary to law. Of course, purpose of acquiring the land is not to be gone into by the Reference Court under Section 24 of the Land Acquisition Act for determination of value of the land and opinion of an expert about deposit of minerals and valuation thereof is not the only criteria on which market value of the land can be determined. But certainly such opinion can be taken into consideration along with other factors as stated in the cases of Viluben Jhalejar Contractor [supra] and Karnataka Urban Water Supply and Drainage Board and others [supra]. Further, the lands acquired of the villages have commercial potential for development and industrial growth.
9.9 The decisions relied on by Mr. M.R.Anand, learned Senior Advocate for the claimant and Shri M.K.Patel, learned Senior Advocate for GMMDC, the appellant aggrieved by the order of the Reference Court in support of their contention are well settled principles of law, but at the same time no straight jacket formula is available that in no case valuation of small pieces of land is to be ignored or not to be taken into consideration. As we are not inclined to apply any principle of deduction since we are in conformity with the reasonings of learned Reference Court about determination of market value of the land acquired and agreeing with the law laid down in the cases of Rajesh Valel Puthuvalil & Another [supra], Punjaji Gopalji and others [supra], Atma Singh [dead], through Lrs. and others [supra], Wave Industries Private Limited [supra], Digamber and others [supra], Anjani Molu Dessai [supra], Bhagwathula Samanna and others [supra] as relevant paragraphs extracted and emphasised in earlier part of the judgment are self explanatory and need no detailed discussion in view of well reasoned award passed by the learned Reference Court taking into consideration all relevant evidence and law laid down in the above judgment.Page 53 of 55
HC-NIC Page 53 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT 9.10 Likewise, decisions relied on by Mr. K.M.Patel, learned Senior Advocate for GMMDC in the cases of Shawal Singh [D], through Lrs. [supra], Karnataka Urban Water Supply and Drainage Board and others [supra], K. Vasundra Devi [supra], Hasanali Khanbhai & Sons and others [supra], to which even reference is also made by learned trial court and criterion laid down therein and further, enhancement is in violation of principles of determination of market value of the land, no material is available, we are in respectful agreement with the same, but for the reasons stated by us and considering Exh.81 to Exh.84, we are of the considered opinion that judgment and award dated 07.05.2016 passed by the learned Principal Senior Civil Judge, Bhavnagar is just and proper and no interference is called for by this Court.
11 In view of the above discussion, all these appeals filed by the claimants and the acquiring body viz. GMMDC fail and are hereby dismissed.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) At this stage, Mr. Premal Joshi, learned advocate for GMMDC states that 50% of the awarded amount is already deposited and 50% amount is yet to be paid to the claimants and requests to stay this order for a period of 3 weeks. Considering the facts and circumstances of the case, the request to stay this order for 3 weeks is rejected.
(ANANT S.DAVE, J.) Page 54 of 55 HC-NIC Page 54 of 55 Created On Sat Aug 05 00:14:36 IST 2017 C/FA/508/2017 CAV JUDGMENT (A.Y. KOGJE, J.) pvv Page 55 of 55 HC-NIC Page 55 of 55 Created On Sat Aug 05 00:14:36 IST 2017