Gujarat High Court
Raghavbhai vs State on 1 April, 2011
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
Gujarat High Court Case Information System
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FA/3853/2009 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3853 of 2009
To
FIRST
APPEAL No. 3857 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
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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 ?
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RAGHAVBHAI
HIRABHAI
Versus
STATE
OF GUJARAT & 1
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Appearance
:
MR KM SHETH for Appellant
MS
SHACHI MATHUR AGP for
Respondents
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CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 01/04/2011
ORAL
JUDGMENT
[1] All these appeals arise out of common impugned judgment and award dated 30.06.2006 rendered by the learned 2nd Additional Senior Civil Judge, Amreli in Land Reference Case Nos.37 of 1999 to 41 of 1999 (Land Reference Case No.40 of 1999 as main case) whereby the Reference Court awarded additional amount of compensation at the rate of Rs.82,250 per hector (Rs.8.22 paise per sq.mtr.). The Reference Court also awarded statutory increases namely additional interest at the rate of 12% per annum under Section 23(1A) of the Land Acquisition Act ("the Act" for short) as well as solecism at 30% as contemplated under Section 23(2) of the Act. The Reference Court awarded interest as provided under Section 28 of the Act.
[2] Certain agricultural lands situated in the outskirt of Village : Sukavla, Taluka : Babra, District : Amreli belonging to the appellants - claimants came to be acquired for public purpose of Nilavda Small Irrigation Project. The Notification under Section 4 of the Act was published on 14.02.1996 and the Notification under Section 6 was published on 27.06.1996. The Special Land Acquisition Officer conducted inquiry to determine just and fair amount of compensation in Land Acquisition Case No.3 of 1995 and declared his award on 05.12.1997 under Section 11 of the Act and offered compensation at the rate of Rs.1.15 paise per sq.mtr. The original claimants felt that the amount offered to them by way of compensation was very less and inadequate and, therefore, they applied for references. Their references were numbered and registered as Land Reference Case Nos.37 to 41 of 1999. All the five Reference Cases came to be consolidated and common evidence was recorded. After appreciating the evidence on record, the Reference Court passed the award on 20.02.2001 and awarded Rs.40.85 paise per sq.mtr by way of additional compensation. The respondents herein namely State of Gujarat and the Executive Engineer, Panchayat Irrigation, Amreli felt that the amount awarded by way of compensation was on higher side and excessive and, therefore, challenged the said order dated 20.02.2001 before this Court by preferring First Appeal Nos.4540 to 4545 of 2001. This Court vide common judgment and order dated 28.01.2002 allowed those appeals and remanded those Land Reference Cases to the concerned Reference Court permitting the respondent - State to adduce further evidence before the Reference Court. It was further directed that once respondent - State produces the additional evidence, the claimants were permitted to adduce additional evidence limited to the extent to the additional evidence to be produced by the respondent - State.
[2.1] After above referred Land Reference Cases came to be remanded to the Reference Court, the additional evidence was produced. After appreciating and evaluating the evidence already adduced by the parties and the additional evidence adduced by both the parties, pursuant to the above referred remand order passed by this Court, the Reference Court passed the impugned judgment and award dated 30.06.2006 whereby the additional amount of compensation was fixed at the rate of Rs.8.22 per sq.mtr. The claimants felt that the amount awarded by way of compensation to them was very less and inadequate in comparison to what they had claimed before the Reference Court the original claimants, therefore, preferred these appeals.
[3] Mr.K. M. Sheth, learned counsel for the appellants - claimants at the outset submitted that while remanding the Reference Cases back to the Reference Court, this Court vide judgment and order dated 20.01.2002 in First Appeal Nos.4540 to 4545 of 2001, no discussion on merits was made regarding sufficiency or insufficiency of the amount of compensation, but simply to enable the State to adduce further evidence in the form of certain revenue record, all these Reference Cases came to be remanded. It is submitted that in the first judgment dated 20.02.2001, the Reference Court had awarded additional amount of compensation ranging from Rs.30, Rs.32.60 to Rs.45 per sq.mtr and after remand, vide impugned judgment and award, the Reference Court awarded additional amount of compensation at the rate of Rs.8.22 per sq.mtr. It is submitted that the Reference Court committed serious error in appreciating the oral as well as documentary evidence adduced by the claimants. It is further submitted that there is no dispute that the lands belonging to the claimants which went into the acquisition were non-irrigated lands and, therefore, the claimants do not dispute the findings arrived at by the Reference Court that the agricultural operation conducted by the claimants in their agricultural lands solely depended upon the rain fall. Therefore, there is no dispute that the claimants used to take one crop per year. It is further submitted that even from the revenue record produced by the respondent - State pertaining to the lands of the claimants, the fact clearly emerges that till the possession of the lands came to be acquired i.e. till 20.07.1994, the crop namely cotton crop is shown as yield in the revenue record. Therefore, the fact clearly emerges that the acquired lands never remained uncultivated or as a waste land.
[3.1] Mr.Sheth, learned counsel submitted that out of the claimants, only one claimant Nathabhai Govindbhai came to be examined before the Reference Court and considering his evidence, he categorically stated that he used to cultivate the cotton crop in his land and yield was approximately 700-800 Kg. per Bigha. It is submitted that though claimants produced necessary bills showing the sale of their agricultural product at Exs.15, 16, 21 to 24, but the Reference Court did not take into consideration the said documentary evidence merely on technical ground. However, the Reference Court relied upon the price index of cotton produced at Exs.69 and 70 and considering the price index at Ex.69 issued by a reliable institutions like market yard, in the year 1994-1995, the price of the cotton was Rs.152 per 20 Kg. The price index Ex.70 may not be relevant as the price of the cotton in the price index at Ex.70 pertains to the year 1995-1996 i.e. subsequent to the date of taking over the possession of the lands from the claimants. It is, therefore, submitted that in presence of such clear and cogent evidence on record, in the impugned judgment and award, the Reference Court erred in coming to the conclusion that the claimants used to earn Rs.3000 per Bigha and again deducting 50% towards agricultural costs and observing that the net income per Bigha would be Rs.1500 and accordingly the Reference Court came to the conclusion that the claimants were entitled to recover additional amount of compensation at the rate of Rs.8.22 paise per sq.mtr. Therefore, it is submitted that the appeals may be allowed and just and fair amount of compensation may be awarded to the appellants - claimants.
[4] Per-contra Ms.Shachi Mathur, learned AGP for the respondents supported the impugned judgment and award rendered by the Reference Court. It is submitted that perusal of the impugned judgment and award rendered by the Reference Court suggests that the Reference Court adopted the method of capitalization. However, while offering the compensation to the claimants, the Special Land Acquisition Officer referred certain sale instances, but the Reference Court did not consider the said evidence. It is submitted that in the impugned judgment and award itself, the Reference Court observed that since the Reference Court was adopting method of capitalization to determine the just and fair amount of compensation, the Reference Court was required to raise certain inference and guess work. It is further submitted that though the claimant Nathabhai in his oral evidence stated that he used to grow cotton crop in his land and the yield was 700-800 Kg. per Bigha, but in support of such evidence, no cogent proof is produced. It is further submitted that Nathabhai in his cross-examination clearly admitted that he does not know as to what is the agricultural produce in the lands of other claimants. The claimants did not examine other claimants. It is, therefore, submitted that when the claimants, thus, did not adduce cogent and clear evidence, there is no reason to enhance the amount of compensation in these appeals. It is, therefore, submitted that these appeals may be dismissed.
[5] I have examined Record and Proceedings in contents with the submissions advanced by the Reference Court. There is no dispute that initially, the Reference Court after examining the evidence produced before it by both the sides passed the award on 20.02.2001 and awarded additional amount of compensation at the rate ranging from Rs.30.64 paise per sq.mtr to Rs.40.85 paise per sq.mtr. There is no dispute that the said judgment and award of the Reference Court came to be challenged by the respondents herein before this Court by preferring First Appeal Nos.4540 to 4545 of 2001. This Court vide common judgment and order dated 28.01.2002 allowed those appeals and remanded those Land Reference Cases back to the Reference Court permitting the respondents herein to adduce additional evidence as well as permitting the appellants - claimants herein to adduce additional evidence confined to whatever additional amount that may be produced by the respondents herein. Thereafter, all these Reference Cases were retried by the Reference Court. The additional evidence came to be produced before the Reference Court. The Reference Court in the impugned judgment and award came to the conclusion that except adopting the method of capitalization to determine the just and fair amount of compensation, no other relevant evidence was adduced namely comparable award or comparable sale instances. Ms.Mathur, learned AGP though submitted that while fixing the amount of compensation under Section 11 of the Act, the Special Land Acquisition Officer considered certain sale instances. However, there is no dispute that no such sale-deeds or copies thereof came to be produced before the Reference Court. When such is the situation, in absence of any evidence to this effect, it cannot be said that the Reference Court committed error in not considering the sale instances.
[6] The Reference Court in para-19 of the impugned judgment and award discussed the evidence of the claimant Nathabhai examined by the appellants - claimants. It is true that as per the evidence of Nathabhai, he deposed that he used to cultivate cotton crop in his land and yield per Bigha of land of cotton crop was 700 - 800 Kg. It is also true that the said claimant Nathabhai in his evidence admitted that he does not know about the quantity of the cotton crop used to be cultivated by other claimants in their lands. Under such circumstances, it becomes clear that regarding the lands of other claimants about quantity of the production of cotton crop and cultivation thereof, the claimants did not examine any witnesses. It is also true that the lands of the claimants were non-irrigated lands and, therefore, the agricultural operation solely depended upon the rain fall. Thus, it can safely be said that the claimants used to take only one crop per year. Moreover, considering the revenue record produced by both the parties, it becomes clear that the lands of the claimants never remained uncultivated. When such is the situation, it can safely be said that all the claimants used to grow and cultivate the cotton crop in their lands. The claimants produced certain bills showing sale of cotton at Exs.15 and 16. The Reference Court examining both the bills, observed the relevant year in both these bills was not legible. Even the Reference Court found overwriting in the name in whose favour the bills were issued. Over-and-above this, both these bills came to be produced on behalf of the claimants before the Reference Court pursuant to the list of documents at Ex.10 and even in the list, no year of the issuance of these bills came to be described. The claimants also produced two more bills, but they were of the year 1995 - 1996. The Reference Court rightly discarded those bills as admittedly the actual and physical possession of the acquired lands were taken from the claimants on 24.07.1994. The claimants then produced price index at Exs.69 and 70 from a market yard by examining the witness Arunbhai Jivanbhai at Ex.68. Considering the evidence of Arunbhai Jivanbhai, he happened to be Clerk-Cum-Inspector in Babra Agricultural Produce Market Yard Committee and through his evidence, the price index came to be produced. As per Ex.69 in the year 1994 - 1995, the price of the cotton per 20 Kg. was Rs.552. The Reference Court observed that this evidence cannot be doubted since the evidence was forthcoming from a reliable institution. However, the Reference court rightly discarded the price index at Ex.70 of the year 1995 - 1996 as the possession of the acquired lands have already been taken in the year 1994 and, therefore, the question of any cultivation in the acquired lands in the year 1995 - 1996 does not arise. After this much of discussion, the Reference Court on the basis of the inferences and guess work observed that the claimants by selling cotton crop used to earn Rs.3000 per Bigha. The Reference Court, while coming to such conclusion, failed to appreciate the evidence adduced by the parties in its true perspective. The evidence of the claimant Nathabhai if considered qua his own land then he deposed that he used to cultivate 700 - 800 Kg. of cotton per Bigha. It is true that regarding quantity of cultivation of cotton by other claimants, he pleaded his ignorance, but as stated above, the lands of the other claimants did not remain un-cultivated. The revenue record discloses that all the claimants used to cultivate cotton crop in their lands. The Reference Court also took into consideration the evidence of Clerk-Cum-Inspector of the Market Yard as well as price index at Ex.69 by observing that the said evidence was reliable and trustworthy. When such is the situation, the evidence adduced by the claimants cannot be said to be either insufficient or inadequate. It is further pertinent to note that it is neither the case of claimants nor it is the allegation of the respondents that the claimants used to maintained up-to-date books of accounts and the claimants suppressed such evidence.
[7] In the above view of the matter, this Court is of the opinion that the observation made by the Reference court that the claimants used to earn Rs.3000 as gross income per Bigha seems to be erroneous. However, re-examining, re-appreciating and re-evaluating the oral as well as documentary evidence adduced by both the parties, this Court is of the opinion that the average cultivation of cotton crop per year cannot be said to be less than 450 Kg. per Bigha. Considering overall evidence regarding the price of the cotton crop per quintal in the year 1994 -1995 and considering Rs.20 per Kg. as price then it can safely be said that the claimants used to earn Rs.9000 per Bigha by cultivating cotton crop. The Reference Court did not commit error in coming to the conclusion that the average expenditure which the claimants used to incur can be said to 50% of their gross income. Thus, deducing 50% from Rs.9000 the net income comes to Rs.4500 per Bigha. Now to convert it into per sq.mtr income and if Rs.4500 are divided by 2300 sq.mtr (1 Bigha equivalent to 2300 sq.mtr.), it comes to Rs.1.96 per sq.mtr and considering the capitalization method applying multipliers of 10% as applied by the Reference Court, it comes to Rs.19.60 paise. The claimants are, therefore, entitled to get just and fair amount of compensation at the rate of Rs.19.60 paise per sq.mtr. They have already been offered Rs.1.15 paise per sq.mtr and, therefore, they are entitled to recover additional amount of compensation at the rate of Rs.18.45 paise per sq.mtr. Thus, these appeals, therefore, deserve to be partly allowed accordingly.
[8] For the foregoing reasons, these appeals are partly allowed. The impugned judgment and award dated 30.06.1996 rendered by the learned 2nd Additional Senior Civil Judge, Amreli in Land Reference Case Nos.37 to 41 of 1999 stands modified and it is hereby ordered that the appellants - claimants are entitled to recover additional amount of compensation at the rate of Rs.18.45 per sq.mtr. The other statutory increases namely the interest at the rate of 12% per annum as provided under Section 23(1A) of the Land Acquisition Act and the solecism as provided under Section 23(2) of the Act as well as running interest as contemplated under Section 28 of the Act as awarded by the Reference Court is not interfered with, but such statutory increases shall be calculated on the additional rate of compensation at the rate of Rs.18.45 per sq.mtr. There shall be no order as to costs. Registry is directed to send back the Record & Proceedings to the concerned Reference Court, immediately. Appellate award to be drawn up accordingly.
[ J. C. UPADHYAYA, J. ] vijay Top