Gujarat High Court
Nariman Darabsha Bhagwagar vs State Of Gujarat & on 18 February, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2699/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2699 of 2005
With
FIRST APPEAL NO. 2700 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ NARIMAN DARABSHA BHAGWAGAR,SINCE DECD.THRU HIS HEIR & L.R.....Appellant(s) Versus STATE OF GUJARAT & 1....Defendant(s) ================================================================ Appearance:
MR MEHUL S SHAH, ADVOCATE for the Appellant(s) No. 1 - 1.1 MR ALKESH SHAH, AGP for the Defendant(s) No. 1 NOTICE SERVED for the Defendant(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 18/02/2014 ORAL (COMMON) JUDGMENT
1. By these appeals under Section 54 of the Land Page 1 of 12 C/FA/2699/2005 JUDGMENT Acquisition Act, 1894 read with Section 96 of the Code of Civil Procedure, 1908, the appellants have challenged common judgment and award dated 11.08.2003 passed in Land Acquisition Reference Case Nos.164 and 165 of 1996 by learned 3rd Joint Senior Civil Judge, Godhara.
2. As the questions involved in these appeals are identical and similar and as the same set of evidence is adduced and relied upon by the Reference Court, these appeals were heard together and are hereby disposed of by this common judgment and order.
3. The lands belonging to the appellants-original claimants in these appeals situated at the outskirts of Village Halol, Dist: Panchmahals, were sought to be acquired for the public purpose of Halol diversion on Godhara-Vadodara road by the State Government.
Notification under Section 4 of the Act was issued on 21.07.1994 followed by the declaration under Section 6 of the Act, which was made on 27.04.1995. Proceedings so initiated, culminated into the award under Section 11(1) of the Act, which was made and Page 2 of 12 C/FA/2699/2005 JUDGMENT declared by the Special Land Acquisition Officer on 30.09.1996. The Special Land Acquisition Officer determined the market value of the lands (under acquisition) as under:-
Rs.50,000/- per Hector i.e. For irrigated Lands Rs.5/- per Sq.Mtr.
Rs.3.50/- per Sq.Mtr. For Non-irrigated Lands
4. Being dissatisfied with the amount of compensation so awarded by the Special Land Acquisition Officer, the appellants-original claimants raised a dispute as provided under Section 18 of the Act by filing an application dated 22.01.1996 (Exh:1) and raised demand of Rs.125/- to 150/- per Sq.Mtr., which came to be referred to the Reference Court and were registered as Land Acquisition Reference Case Nos.164 and 165 of 1996.
After considering the evidence on record, learned 3rd Joint Senior Civil Judge, Godhara, vide order dated 11.08.2003 determined the market value under the acquisition pertaining to the appellants-original claimants at the rate of Rs.115/- per Sq.Mtr., and awarded Rs.110/- per Sq.Mtr., as additional Page 3 of 12 C/FA/2699/2005 JUDGMENT compensation along with other statutory benefits under Sections 23(1-A), 23(2) and 28 of the Act.
5. Being aggrieved by the judgment and award of the Reference Court, the appellants-original claimants have preferred these appeals.
6. Heard Mr.Mehul S. Shah, learned counsel for the appellants-original claimants and Mr.Alkesh N. Shah, learned Assistant Government Pleader for the respondents.
7. Learned counsel for the appellants-original claimants relying upon the judgment and award of the Division Bench of this Court rendered in Cross- Objection No.213 of 2001 in First Appeal Nos.3988 to 3999 of 2001 dated 15.02.2002 (Exh:43), contended that the lands which were acquired under the said acquisition being Survey Nos.265, 289/1 and 270 are adjoining to the lands belonging to the appellants- original claimants. It was further contended that taking the said market value as determined by this Court as base, the appellants-original claimants would be entitled to 10% increase per year and Page 4 of 12 C/FA/2699/2005 JUDGMENT therefore, the appellants-original claimants would be entitled to Rs.144.60/- per Sq.Mtr., as compensation. It was, therefore, contended that the Reference Court has erred in determining the market value at the rate of Rs.115/- per Sq.Mtr., by awarding Rs.110/- per Sq.Mtr., as additional compensation.
8. Learned counsel for the appellants-original claimants further contended that as far as the nature, potentiality and the quality of the lands are concerned, the same are similar to the lands of the previous judgment of the Division Bench of this Court at Exh:43. It was, therefore, contended that the same has to be applied in its true letter and spirit as it is best comparable evidence available on record, and therefore, the appeals deserve to be allowed.
9. Learned Assistant Government Pleader supported the impugned judgment and award and submitted that the Reference Court has correctly appreciated the evidence on record and no interference is called for by this Court in its appellate jurisdiction.
10. No other and further submissions are made by Page 5 of 12 C/FA/2699/2005 JUDGMENT learned counsel for the respective parties.
11. On perusal of the record and proceedings of the Reference Court, it appears that the original claimants were examined at Exh:13. It further appears that the appellants-original claimants have relied upon the map at Exh:21 to show that the lands which were acquired under the Land Acquisition Reference case Nos.164 and 165 of 1996 are adjacent to the lands (under acquisition). The appellants-original claimants have also produced the village Form 7/12 at Exhs:22 and 23 of the lands which are under acquisition in the present case. The appellants- original claimants have also produced village form 7/12 at Exhs:24 to 31, which relate to the lands which were subject matter of First Appeal Nos.3988 of 2001 and allied appeals before this Court.
12. The appellants-original claimants have also relied upon by the certificate of Halol Nagarpalika at Exh:33 to buttress their claims with the lands pertaining to Survey Nos.263 and 264 are within the limitation of Halol Nagarpalika and also to prove Page 6 of 12 C/FA/2699/2005 JUDGMENT that there is residential zone to the east and agricultural zone to the west of by-pass road. The appellants-original claimants have also produced on record the award passed by the Land Acquisition Officer by application at Exh:41. The appellants- original claimants have also produced the judgment of the Division Bench of this Court dated 15.02.2002 in First Appeal Nos.3988 of 2001 and allied appeals and cross-objections at Exh:43. The appellants-original claimants have further adduced the evidence in form of previous award passed in Land Acquisition Reference Case Nos.166 to 177 of 1996, against which First Appeal Nos.3988 of 2001 and allied appeals and cross objections were filed at Exh:48.
13. Over and above that, the appellants-original claimants have also produced the extracts of 7/12 at Exhs:49 to 51 for the lands pertaining to the lands, which were subject matter of First Appeal Nos.3988 of 2001 and allied appeals and cross-objections before this Court at Exh:43.
14. The respondents have not led any oral evidence. Page 7 of 12
C/FA/2699/2005 JUDGMENT 15. The Reference Court after considering the
judgment of the Division Bench of this Court in First Appeal Nos.3988 to 3999 of 2001 has also recorded that the judgment of the Division Bench has become final and it has not been challenged by the respondents and has come to the conclusion that the potentiality of the lands is similar, and therefore, relying upon the judgment of the Division Bench of this Court, the Reference Court determined the market value of the lands at the rate of Rs.115/- per Sq.Mtr.
16. Considering the submissions made by learned counsel for the appellants-original claimants and on perusal of the record as well as the judgment of the Division Bench of this Court rendered in First Appeal Nos.3988 to 3999 of 2001 dated 15.02.2002, Mr.Shah, learned counsel for the appellants contended that Section 4 Notification in the case, which was considered by the Division Bench of this Court was dated 29.09.1984, wherein the Court has determined the market value of the lands at the rate of Rs.100/- Page 8 of 12
C/FA/2699/2005 JUDGMENT per Sq.Mtr.
17. On re-appreciation of the evidence on record, more particularly, the previous award passed by the Reference Court at Exh:48 against which the appeals were preferred being Cross-Objections No.212 to 23 of 2001 with First Appeal No.3988 to 3990 of 2001, Division Bench of this Court (Exh:43), it appears that the date of Section 4 Notification considered by the Division Bench of this Court was published on 28.09.1994. The Division Bench of this Court in the case of First Appeal Nos.3988 to 3999 of 2001 has observed thus:
"6. However, Shri Sheth, learned counsel for the respondents-claimants submitted that the claimtns were entitled for Rs.100/- per sq.mtr. in view of the aforesaid judgment of this Court. In fact, according to Mr.Sheth, the claimants would have been entitled for Rs.115/- per sq.mtr., because in the case before the Division Bench, the acquisition was of 1989 whereas in the instant case, the acquisition is of 1994. However, as the claimants had initially claimed only Rs.100/- per Sq.Mtr., before the Land Acquisition Officer. Therefore, Rs.100/- per Sq.Mtr. Should have been awarded by the Reference Court. He, therefore, submitted that their cross objections be allowed and they should be awarded remaining additional amount of Rs.27.70 ps. Per Sq.Mtr. in all Rs.100/- per Sq.Mtr.
7. This was strongly objected by Shri Sen. Ld.AGP, submitted that mere difference of 5 years in issuance of notification under Section 4 would not entitle the claimants to claim remaining additional sum of Rs.27.70 ps. Per sq.mtr. However, Shri Sheth Ld. Counsel for the claimants relied upon the Division Bench judgment of this Court in the case of Special Land Acquisition Officer, Bharuch Vs. Motibhai Mohanbhai reported in 1997(2) GLH 773 and the judgment of this Hon'ble Court in the case of Deputy General Manager, ONGC Vs. Chaturji Lalaji & Others reported in GLR 39(1) 130 and submitted that the claimants are entitled for grant of 10% increase per annum.Page 9 of 12
C/FA/2699/2005 JUDGMENT
8. There is lot of force in the submission made by Mr.Sheth, learned Counsel for the respondent-claimants. His submission is duly supported by the aforesaid 2 judgments of the Division Bench of this Court in Motibhai Mohanbhai's Case (Supra) and Chaturji Lalaji's Case (Supra).
9. In fact, relying upon the judgment of the Division Bench of this case in Motibhai Mohanbhai (Supra), the Division Bench of this Court (Coram: M.R.Calla & D.H.Waghela,JJ.) by its judgment dated 29.03.2001 allowed the cross objections and award additional Rs.36/- per Sq.Mtr.
10. In view of the above, while dismissing the first Appeal filed by the appellants, we have no option but to allow the cross objections and taking 10% increase, it would definitely come much more to Rs.100/- per Sq.Mtr. but the claimants had restricted their claim to Rs.100/- per Sq.Mtrs. before the land Acquisition Office, and therefore, we cannot grant more than what was claimed by claimants before the Land Acquisition Officer. However, they are entitled Rs.100/- per Sq.Mtr. Thus, they are entitled for remaining additional sum of Rs.27.70 per Sq.Mtr. for the lands which were acquired by the impugned notification. Thus, in all, the respondent-claimants are entitled to Rs.100/- per Sq.Mtr. for the lands which were acquired under the impugned notification.
11. In view of the above discussions, all the above appeals filed by the appellants fail and are hereby dismissed with costs whereas the aforesaid cross-objections filed by the respondents-claimants succeed to the extent that all the respondents-claimants are entitled to be paid in all Rs.100/- per Sq.Mtr. instead of Rs.72.32 per Sq.Mtr. award by the Land Acquisition Officer and the Reference Court. The cross- objections are partly allowed with costs. All the consequential benefits and stationary benefits including interest on solatium under Section 23(1) of the Land Acquisition Act and other consequences shall follow regard to all other items under consideration. Decree be drawn accordingly."
18. On re-appreciation of the evidence, it appears with respect that there is typographical error in date of Section 4 Notification in para-2 of the judgment rendered by the Division Bench of this Court. It further appears that the lands, which were acquired in the previous award at Exh:48, confirmed Page 10 of 12 C/FA/2699/2005 JUDGMENT by the Division Bench of this Court by the judgment and order at Exh:43 were situated on the outskirts of Halol village and the lands were almost adjacent to to the lands under acquisition.
19. On re-appreciation of the evidence, this Court is of the opinion that the Reference Court has correctly considered it to be the best comparable instance. It transpires that the date of Section 4 Notification of the lands, which were acquired by the respondents, which were subject matter of previous award Exh:48 confirmed by the Division Bench at Exh:43 was 28.09.1994 whereas Section 4 Notification in the instant case is dated 21.07.1994. It therefore, transpires that Section 4 Notification in the instant case is more than two months prior to Section 4 Notification, which was subject matter of previous award Exh:48 confirmed by the Division Bench of this Court in First Appeal Nos.3988 to 3989 of 2001. In light of the above facts, the appellants are not entitled to more compensation than what is awarded by the Reference Court.
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C/FA/2699/2005 JUDGMENT
20. On re-appreciation of the evidence, this Court is of the opinion that considering the said evidence correctly and also taking into considering its potentiality of the development and geographical location of the lands (under acquisition), the Reference Court has committed no error in determining the market value of the lands at the rate of Rs.115/- per Sq.Mtr. and in awarding Rs.110/- per Sq.Mtr., as additional compensation along with statutory benefits under the Act.
21. In light of the aforesaid, present appeals are merit less and the same deserve to be dismissed and are hereby dismissed. Parties to bear their own costs. Registry is directed to send back the Record and Proceedings to the Reference Court forthwith.
(R.M.CHHAYA, J.) Suchit Page 12 of 12