Gujarat High Court
Kantibhai Somabhai vs Special Land Acquisition Officer on 27 September, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1659 of 2016
With
R/FIRST APPEAL NO. 639 of 2017
With
R/FIRST APPEAL NO. 1660 of 2016
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R/FIRST APPEAL NO. 1661 of 2016
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R/FIRST APPEAL NO. 1662 of 2016
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R/FIRST APPEAL NO. 1663 of 2016
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R/FIRST APPEAL NO. 1664 of 2016
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R/FIRST APPEAL NO. 1665 of 2016
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R/FIRST APPEAL NO. 1666 of 2016
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R/FIRST APPEAL NO. 1667 of 2016
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R/FIRST APPEAL NO. 1668 of 2016
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R/FIRST APPEAL NO. 1669 of 2016
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R/FIRST APPEAL NO. 1670 of 2016
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R/FIRST APPEAL NO. 1671 of 2016
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R/FIRST APPEAL NO. 1672 of 2016
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R/FIRST APPEAL NO. 1673 of 2016
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R/FIRST APPEAL NO. 1674 of 2016
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R/FIRST APPEAL NO. 1675 of 2016
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R/FIRST APPEAL NO. 1676 of 2016
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R/FIRST APPEAL NO. 1677 of 2016
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R/FIRST APPEAL NO. 1678 of 2016
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R/FIRST APPEAL NO. 1679 of 2016
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R/FIRST APPEAL NO. 1680 of 2016
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R/FIRST APPEAL NO. 1681 of 2016
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R/FIRST APPEAL NO. 1682 of 2016
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R/FIRST APPEAL NO. 1683 of 2016
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R/FIRST APPEAL NO. 1684 of 2016
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R/FIRST APPEAL NO. 1685 of 2016
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R/FIRST APPEAL NO. 1686 of 2016
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R/FIRST APPEAL NO. 1687 of 2016
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R/FIRST APPEAL NO. 1688 of 2016
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R/FIRST APPEAL NO. 1689 of 2016
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R/FIRST APPEAL NO. 2920 of 2016
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R/FIRST APPEAL NO. 2921 of 2016
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R/FIRST APPEAL NO. 2922 of 2016
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R/FIRST APPEAL NO. 2923 of 2016
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R/FIRST APPEAL NO. 2924 of 2016
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R/FIRST APPEAL NO. 2925 of 2016
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R/FIRST APPEAL NO. 2926 of 2016
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R/FIRST APPEAL NO. 2927 of 2016
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R/FIRST APPEAL NO. 2928 of 2016
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R/FIRST APPEAL NO. 2929 of 2016
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R/FIRST APPEAL NO. 2930 of 2016
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R/FIRST APPEAL NO. 2931 of 2016
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R/FIRST APPEAL NO. 2932 of 2016
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R/FIRST APPEAL NO. 2933 of 2016
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C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023
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R/FIRST APPEAL NO. 2937 of 2016
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R/FIRST APPEAL NO. 2938 of 2016
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R/FIRST APPEAL NO. 2939 of 2016
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R/FIRST APPEAL NO. 2940 of 2016
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R/FIRST APPEAL NO. 2980 of 2016
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R/FIRST APPEAL NO. 2981 of 2016
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R/FIRST APPEAL NO. 2982 of 2016
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R/FIRST APPEAL NO. 2983 of 2016
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R/FIRST APPEAL NO. 2984 of 2016
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R/FIRST APPEAL NO. 2985 of 2016
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R/FIRST APPEAL NO. 2987 of 2016
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R/FIRST APPEAL NO. 2988 of 2016
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R/FIRST APPEAL NO. 2989 of 2016
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R/FIRST APPEAL NO. 2990 of 2016
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R/FIRST APPEAL NO. 2992 of 2016
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R/FIRST APPEAL NO. 2993 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
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C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023
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4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KANTIBHAI SOMABHAI
Versus
SPECIAL LAND ACQUISITION OFFICER & 1 other(s)
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Appearance:
MS.SHIVANI V TRIVEDI(7225) for the Appellant(s) No. 1
MR ANKIT SHAH(6371) for the Defendant(s) No. 2
MR. JAYNEEL PARIKH, LD. AGP for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 27/09/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. All these first appeals emanate from the judgment and award passed by the learned Principal Senior Civil Judge, Gandhinagar dated 28.12.2015 in the Land Reference Case Nos.30 of 2013 to 60 of 2013, awarding additional amount of compensation of Rs.1732/- per square meter in respect of the lands situated interior to the road and Rs.1757/- in respect of the lands situated near the highway or are abutting the same, respectively over and above the compensation already awarded by the Special Land Acquisition Officer vide its order dated 30.06.2011.
2. In this group of appeals, both the original claimants and the Acquiring Body have assailed the impugned judgment and Page 4 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined award passed by the learned Principal Senior Civil Judge, Gandhinagar by filing separate first appeals, and since the challenge in all the first appeals is to the selfsame judgment and award, those were heard analogously and are being disposed of by this common judgment and order.
3. For the sake of convenience, the First Appeal No.1659 of 2016 is treated as the lead matter.
4. The facts, leading to the filing of the present appeal, are as under;
4.1 The lands of the claimants situated within the territory of Alampur-Lekawada of Gandhinagar District were acquired by the respondents for the purpose of construction of the Headquarter of BSF. The respondents have acquired the said lands after fulfilling, undertaking and completing all the necessary and requisite procedure as prescribed under the law.
4.2 The notification under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') was published in the Government Gazette on 18.06.2008 and, thereafter, subsequently, notification under Section 6 of the Act was published on 28.08.2009 and the Special Land Acquisition Officer passed an award under Section 11(1) of the Act on 30.06.2011 determining the market price of the lands at the rate of Rs.48/- and Rs.53/- per square meter in respect of the lands of the claimants which was acquired by the respondents. 4.3 Being aggrieved by and dissatisfied with the said award Page 5 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined passed by the Land Acquisition Officer, the original claimants have filed the land references, claiming compensation of Rs.10,000/- per square meter in respect of the lands acquired by the Government.
4.4 After considering oral as well as documentary evidences available on record, the learned Principal Senior Civil Judge, Gandhinagar partly allowed the land references of the claimants by awarding additional compensation of Rs.1732/- per square meter in respect of the lands situated interior to the road and Rs.1757/- per square meter for the lands situated near to the highway or are abutting the same respectively over and above the compensation already awarded by the Land Acquisition Officer vide its order dated 30.06.2011. The Reference Court also awarded interest at the rate of 12% per annum under Section 23(1)(a) of the Act from the date of issuance of Section 4 Notification, i.e., 18.06.2018 till the date of passing of award under Section 11 of the Act. The Reference Court also granted 30% solatium on the aforesaid additional amount of compensation under Section 23(2) of the Act. The Reference Court also awarded interest at the rate of 9% per annum over the aforesaid additional amount of compensation under Section 28 of the Act initially for the period of one year from the date of taking over the possession of the lands or from the date of passing of award under Section 11, i.e., 30.06.2011, whichever is earlier and thereafter at the rate of 15% per annum for rest of the period, i.e., till its realization.
4.5 Being aggrieved by and dissatisfied with the aforesaid Page 6 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined judgment and award, both the original claimants and the State Authority are here before this Court with the present batch of first appeals.
5. Learned advocate Mr. Yatin Soni who appears on behalf of the original claimants has vociferously submitted that, in fact, total 31 land references have been filed by the claimants before the Reference Court those were decided by the learned Principal Senior Civil Judge, Gandhinagar by partly allowing the Land Reference Cases Nos.30 of 2013 to 60 of 2013 by passing judgment and award on 28.12.2015. As the awarded amount is much less than the amount claimed in the references, the original claimants, being aggrieved with the said judgment and award, preferred the present first appeals whereas the acquiring body is also aggrieved with the findings recorded and judgment delivered by the learned Principal Senior Civil Judge, Gandhinagar and, hence, they have also preferred the separate 31 first appeals and assailed the impugned judgment and award by raising manifold grounds. Learned advocate Mr. Soni has submitted that the lands in question which are acquired by the Acquiring Body are situated within the territorial jurisdiction of village Alampur and village Lekawada of Gandhinagar District. The acquired lands are situated adjacent to Gandhinagar-Chiloda State Highway. Learned advocate Mr. Soni has submitted that on Gandhinagar-Chiloda State Highway, immediately after crossing the bridge of Sabarmati River, on the left side of the highway, village Lekawada and thereafter immediately adjoining to village Lekawada, village Alampur is situated. In Page 7 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined short, both the villages, i.e,. Lekawada and Alampur have common boundaries. Learned advocate Mr. Soni has submitted that on the right side near the bridge of Sabarmati river on Gandhinagar-Chiloda Highway, village Palaj is situated. The boundary of village Palaj is adjacent to the boundary of village Chiloda. In the case on hand, the reference court has awarded compensation solely by putting reliance upon the resolutions of the Government of Gujarat containing that the lands of village Palaj were allotted for the purpose of construction of headquarter of the Indian Air Force. The copy of the said Government Resolution is produced vide Exh.30. Learned advocate Mr. Soni has submitted that the maps of the location of the said villages are already produced on record which clearly goes on to show that on the right side of the Gandhinagar-Chiloda State Highway, geographically location of village Palaj is found, whereas on the left side of the road, villages Lekawada and Alampur are situated. Therefore, it can safely be said that the Gandhinagar-Chiloda State Highway passes through the lands of villages Lekawada, Alampur and Palaj. Learned advocate Mr. Soni has further submitted that the acquired lands of villages Lekawada and Alampur were agricultural lands and situated near the Gamtal land of village and, therefore, the value of the said lands is on higher pedestal compare to land of village Palaj as the geographical location of the said acquired land was at a quite distance place and position and quality of the land is comparable. Learned advocate Mr. Soni has further submitted that the present land was acquired by the Government with the sole purpose to construct the headquarter of the BSF and a notification under Page 8 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined Section 4 was issued on 18.06.2008 and the notification under Section 6 was issued on 28.08.2009 and, thereafter, the Special Land Acquisition Officer passed an award on 30.06.2011 by awarding an amount of Rs.48/- and Rs.53/- per square meter respectively and, therefore, all the land owners have preferred total 31 land references claiming an amount of Rs.10,000/- per square meter as compensation.
6. Learned advocate Mr. Soni has submitted that to substantiate their claim, the claimants have examined three witnesses and to disprove the case of the claimants, the opponents have examined two witnesses and after considering and appreciating the materials available on record, the learned Judge has, in principle, put reliance upon the Resolution issued by the Government of Gujarat at the time of allotment of the land of Village Palaj for the purpose of construction of the headquarter of the Indian Air Force. Learned advocate Mr. Soni has further submitted that essentially he is making submissions for enhancement of the amount of compensation awarded by the learned Principal Civil Judge in the land references on three basic grounds viz. first that the resolution issued by the Government of Gujarat was produced vide Exh.30 wherein the land of village Palaj was acquired by the Government for the purpose of development of the infrastructure of the Air Force. The said land was acquired on 03.10.2003 at the rate of Rs.7200/- per square meter as per the resolution of Government of Gujarat, Road & Building Department. Learned advocate Mr. Soni has also submitted that the copy of the said resolution has been produced on Page 9 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined record and at the time of deciding the claim of the present claimants, the Hon'ble Court has put reliance upon the said government resolution. Learned advocate Mr. Soni has gone through the contents of the said Government Resolution and firmly submitted that it is clearly mentioned in the operative part of the resolution that the office of the Government has inspected and verified the position of the land and after considering all the relevant factors, the members of the Expert Committee opined that the land was uneven, far away from Gamtal, unused and majority of the lands were non-usable except few lands and considering the said ground position of the lands acquired by the Acquiring Body, the Government has reduced the rate of the lands considerably from Rs.7200/- to Rs.1811/- per square meter in the year 2008 by publishing a Government Resolution in the Government Gazette on 20.09.2008.
7. Learned advocate Mr. Soni has submitted that the said Government Resolution clearly goes on to show that at the time of allotment of the land to the Air Force in the year 2003, the Acquiring Body has fixed the price of the acquired land at Rs.7200/- per square meter. However, subsequently, considering the ground reality about the condition, situation and location of the land, the price of the land was reduced considerably from Rs.7200/- to Rs.1811/- per square meter. In short, the market price of the land of the said area was considered to be as Rs.7200/- per square meter provided the condition of the land would be fertile, clear, flat, close to Gamtal land and also developed in all aspects. He further Page 10 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined submitted that admittedly, the land which was acquired for the purpose of construction of the headquarter of the Air Force of village Palaj is not flat one, fertile, potential, irrigated and totally uneven land and the said fact is reflected from the body of contents of the Government Resolution, whereas in the present case, the condition of the acquired land was fertile and the applicants/farmers were used to take crop in all three seasons in a year, situated very close to Gamtal land, potential one, the surrounding area of the land is highly developed and geographically located very close to Gandhinagar-Chhiloda Highway. In short, the land acquired by the Acquiring Body is a qualitative, potential, developed and fertile one. The land of village Palaj seems to be new tenure land as several terms and conditions were mentioned in the resolutions. Learned advocate Mr. Soni has submitted that, therefore, considering the price value of the land of the claimants, the claimants are entitled to get amount of compensation at the rate of Rs.7200/- per square meter price as on 03.10.2003 and as per the settled proposition of law, they are also entitled to get 10% further reasonable rise per annum for the rest of the period from the year 2003 to 2008. In short, the claimants are entitled to get 50% rise which comes to Rs.10,800/- (Rs.7200 + 3600=10,800/-) per square meter. However, the claimants had demanded only Rs.10,000/- per square meter.
8. The second limb of arguments canvassed by learned advocate Mr. Soni is that at the time of considering the land reference cases of the claimants, the Hon'ble Court has Page 11 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined considered the government resolutions issued by the Government so far as village Palaj is concerned and geographically the location of village Palaj is found exactly on the opposite side of the villages Lekawada and Alampur. The Hon'ble Court has ordered to pay an amount of compensation of Rs.1780/- per square meter in respect of the lands which are situated interior to the road and at the rate of Rs.1810/- per square meter which are situated near the highways or are abutting the same respectively. Learned advocate Mr. Soni has vociferously submitted that admittedly, the land of village Palaj was acquired in the year 2003 and the amount of compensation was awarded as per the government resolution which came into effect from the year 2003. At the time of considering and appreciating the materials available on record, the learned Judge has passed an award on the strength of the same set of evidence available on record, but in fact, situation is altogether different in the present case. Here in the case on hand, as per the government resolution, the notification under Section 4 was published in the year 2008. Therefore, the claimants are entitled to get 10% reasonable rise per annum from the year 2003 to the date of notification issued under Section 4 of the Act as per the settled proposition of law as held by the Hon'ble Apex Court in numerous cases. Admittedly, notification was published in the year 2008 and, therefore, the claimants are entitled to get five years rise, i.e.,50% rise in the price of the acquired land which would come to Rs.2716.50 (Rs.1811+905.50=2716.50/). Learned advocate Mr. Soni has further submitted that it is also an admitted position of fact that the land of village Palaj which was acquired for the Page 12 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined purpose of development of the infrastructure of the headquarter of Air Force, the Acquiring Body had initially considered the market price of the value of the land at Rs.7200/- per square meter, but thereafter after verifying and scrutinizing the location, situation and quality of the land, they have come to the mature decision that the land of village Palaj is not fertile, flat one, far away from Gamtal and huge parcel of land is not used for the agricultural activities, whereas the position of the lands acquired in the village Lekawada and Alampur is quite contrary and the lands in question are found to be situated close to the highway and Gamtal. The Gandhinagar-Chiloda State Highway is a highly developoed area of the State capital and, therefore, huge number of commercial and residential buildings have been constructed on both the side of the Highway lands. Therefore, the commercial and residential potential value of the land is on much higher pedestal than the village Palaj and, therefore, the claimants are entitled to get 30% more amount on that ground also which would come to Rs.3531.45/- (Rs.2716.50+814.95= 3531.45).
9. The third bone of contention of the submissions made by learned advocate Mr. Soni is that at the time of leading evidence, the claimants have produced all the necessary and important evidences with a sole purpose to bring the actual price available within the territory of village Lekawada and Alampur and for that purpose, they have examined the government approved and registered agricultural land valuer vide Exh.48. The said valuer has submitted its report vide Page 13 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined Exh.41 and as per the evidence of the expert witness the price of the acquired land is determined as Rs.3484/- per square meter so far as village Alampur is concerned, whereas the value of the land so far as village Lekawada is concerned, the same is valued at Rs.3500/- per square meter. The said witness was cross-examined by the learned advocate for the opponents but could not be able to get any fruitful result and nothing adverse has been come on record in the cross- examination of the said witness. Learned advocate Mr. Soni has further submitted that at the time of leading evidence, the claimants have also produced the sale deeds of the agricultural lands situated within the vicinity of the land which clearly goes on to show that the price of the acquired land is on much higher valued than the awarded amount of the reference court but he has not put much emphasis upon the said set of evidence at the time of making submissions and submitted that on the strength of the above three different mode of calculations he has canvassed in his arguments, out of which, on any mode of calculation amount of compensation may be considered and adequate amount be awarded.
10. Learned advocate Mr. Soni has further submitted that it is also settled proposition of law that the claimants are entitled to get highest amount of compensation as per the comparable exemplar. Learned advocate Mr. Soni has also submitted that the government approved valuer has prepared a report after physically examining the condition and location of the land and prepared a very exhaustive report by considering each and every aspect of the land which was Page 14 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined directly connected with the market value of the land in question. The said report had been placed on record by examining him as a witness. It is clearly stated in the report that bore wells were found in the acquired lands and the claimants were cultivating the said land by getting water from the said bore wells and due to availability of water for 24x7 period, the claimants-appellants were yielding crops three times in a year by doing agricultural activities. The quality of the land is good and situated very close to developed commercial and residential areas. The lands is fertile one, potential and situated close to Gamtal village and also adjacent to the Highway. Learned advocate Mr. Soni has submitted that despite the fact that it is proved by the claimants by leading cogent, convincing and reliable evidence that bore wells and submersible pumps were situated in the said land, and for the purpose of preparing and maintaining the said assets, they have made huge expenditures and the bills of said expenditures were produced on record but the amount of compensation was not awarded on those heads. Learned advocate Mr. Soni has submitted that considering the above stated factual aspect, ground reality as well as settled proposition of law, the claimants are entitled for enhancement of the compensation as demanded and, therefore, the appeals filed by the claimants be partly allowed and as a consequential effect, appeals preferred by the Acquiring Authority be dismissed with exemplary cost.
11. In support of his submissions, learned advocate Mr. Soni has put reliance upon the following decisions;
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1) In the case of General Manager, ONGC Limited vs. Chamanji Kuberji, reported in 2013 (4) GLR 2769;
2) In the case of Thakarsibhai Devjibhai & Ors. vs. Executive Engineer, Gujarat & Anr., reported in AIR 2001 SC 2424;
3) In the case of Mahesh Dattatray Thirthkar vs. State of Maharashtra, reported in AIR 2009 SC 2238;
4) In the case of R. Saragapani (Dead) Thr. L. Rs. vs. Tahsildar, Karur-Dindigul Broadguage Line, reported in 2001 AIR SCW 6100;
5) In the case of The Special Land Acquisition Officer & Anr. vs. Sri Siddappa Omanna Tumari & Ors., reported in AIR 1995 SC 840;
6) In the case of Mehrawal Khewaji Trust vs. State of Punjab & Ors., reported in AIR 2012 SC 2721;
7) In the case of Bhikhaji vs. Special Land Acquisition Officer, reported in 2012 AIR CC 1835 (Guj. HC);
12. Learned advocate Ms. Shivani Trivedi who appears on behalf of the appellant-claimants in some of the appeals has submitted that the learned senior advocate has already covered almost all the points and canvassed arguments in a great detail and exhaustive manner by minutely reading each and every evidence available on record and, therefore, she Page 16 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined does not want to add anything further in her arguments. She has submitted that, in fact, the claimants have already produced the copy of the government resolutions pertaining to village Lekawada which was allotted to the Indian Coast Guard by awarding an amount of Rs.2135/- and also claimants have produced sale deeds of other lands exactly situated adjoining to the acquiring lands of the claimants wherein the executing parties have agreed upon certain amount and executed registered sale deed of the land. The market price mentioned in the said registered sale deeds are at much higher level than the amount awarded to the claimants. Not only that, those sale deeds were executed between the parties before the notification under Section 4 came to be issued and, therefore, the appeals are required to be allowed by enhancing the amount of compensation as the Hon'ble Court deems fit on the strength of the arguments canvassed by the learned senior advocate Mr. Soni as she is adopting all the contentions canvassed by learned advocate Mr. Soni.
13. Learned advocate Ms. Trivedi has further submitted that in the First Appeal No.2932 of 2016, during the pendency of the present group of first appeal, one Civil Application (For Direction) No.10791 of 2017 was preferred by the siblings of the appellants for seeking their part of amount of compensation from the awarded amount, in which, a Coordinate Bench of this Court has passed the following order on 10.10.2017;
"The present applicants now have been permitted to be joined as party respondents in the First Appeal.Page 17 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023
NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined The applicants have filed this application with following prayers:
"16A. This application be admitted and allowed.
16B. Your Lordships may pleased to direct Ld. Principal Senior Civil Judge, Gandhinagar to pay the proportionate amount as per the share of the present applicants to them as they are the legal owners.
16C. Any other relief that may be deemed just and proper may also be kindly granted."
During the course of submission, learned counsel for the parties have arrived at broad consensus without any prejudice to their contentions qua their respective claimant's right and entitlement for receiving compensation that two groups consisting two and three members respectively be permitted to receive 25%-25% of the 50% amount ordered to be disbursed and pursis be produced with affidavit-in- reply.
This shall not amounting to be adjudicating any right or entitlement of the parties and that will be subject to final outcome of the appeal in question.
Present application is accordingly allowed.
Both the parties i.e. applicants as well as respondent no.3 would receive 25% of the amount of 50% which is ordered to be disbursed vide order dated 29/12/2016. "
14. Learned advocate Ms. Trivedi has submitted that the said civil application has been disposed of by this Hon'ble Court, but in fact, as per the observations made by the Division Bench of this Court, the right or entitlement of the parties will be subject to the final outcome of the appeals in question. Therefore, at the time of deciding the present first appeals, if Page 18 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined identical nature of order is to be passed, in that event, parties would not have any objection.
15. Learned advocate Mr. Ankit Shah who appears on behalf of the original defendants-Acquiring Body has vociferously submitted that the judgment and award passed by the learned Reference Court is not just, fair, reasonable and based upon the sound principle of law and, hence, being aggrieved and dissatisfied with the said judgment and award, the acquiring body has also preferred separate appeals to assail the impugned judgment and award passed by the learned Reference Court. Learned advocate Mr. Shah has submitted that essentially the learned Principal Senior Civil Judge, Gandhinagar has put emphasis upon the government resolution issued by the Road & Building Department, Sachivalaya, Gandhinagar on 03.10.2003 for the purpose of acquiring the land for construction of the Headquarter of the Indian Air Force. Learned advocate Mr. Shah has submitted that, thereafter, subsequently on 20.08.2008, another resolution was passed by the Road & Building Department, Sachivalaya, Gandhinagar to fix the market price of the land of the Gandhinagar City except sector areas, and as per the said government resolution, the price of village Palaj situated on the bank of river Sabarmati on the southern side of the Gandhinagar-Chiloda National Highway No.8 was fixed at Rs.1630/- per square meter and Rs.1811/- per square meter respectively after considering and appreciating all the relevant factors of the land. Learned advocate Mr. Shah has submitted that for the purpose of acquiring the land to construct the Page 19 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined headquarter of the Indian Air Force, the land of village Palaj was acquired and for that purpose, a Government Resolution to fix the price was issued with certain conditions.
16. Learned advocate Mr. Shah has read the said conditions and submitted that it is stated in a very crystal terms that as per the Central Government Resolution dated 29.06.1988, the price of the land is required to be taken into count eight times more than the actual price and as per the development expenditure value of Rs.900/- per square meter was fixed but as per the language employed in the government resolution dated 29.06.1988, the said market value of development expendtirue requires to be multiplied eight times and if it is to be multiplied eight times, resultantly, the figure would come to Rs.7200/- per square meter. Learned advocate Mr. Shah has also submitted that it is clearly found out from the operative part of the resolution that, in fact, the prevailing price of the development expenditure of the said land is Rs.900/- per square meter, but as per condition and policy of the Central Government, the said amount was enhanced to Rs.7200/- by multiplying with eight the prevailing price of market value.. Therefore, the documents upon which reliance is being placed by the learned advocate for the claimants clearly goes on to show that the actual price of the land was prevailing at Rs.900/- at the relevant point of time and, therefore, the amount of compensation can be calculated considering the said price of Rs.900/- per square meter, in that event, 10% reasonable rise per annum is required to be given as per the settled proposition of law as the said land was allotted and price was fixed in the year 2003 and the present land was Page 20 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined acquired in the year 2008 and, therefore, it can safely be said that 50% rise of the said amount is require to be awarded. So, at the relevant point of time, the price of the land was Rs.900/- per square meter and after adding 50% rise, would come to Rs.1350/- per square meter (Rs.900 + 450=1350/-). In short, Rs.1350/- per square meter is required to be enhanced, whereas here in the case on hand, the reference court has awarded Rs.1732/- and Rs.1757/- respectively which is much higher amount than the actual market price prevailing at the relevant point of time.
17. Learned advocate Mr. Shah has further submitted that at the time of leading evidence, the claimants have produced certain sale-deeds executed between the parties of the land which was situated adjacent to the acquired land. Before learned advocate Mr. Shah would start to make any comment about the said submissions, the learned advocate Mr. Soni and learned advocate Ms. Trivedi had fairly conceded that they are not pressing their arguments upon the said set of evidence at this juncture and submitted that they have confined their arguments only upon the evidence pertaining to government resolution so far as amount of compensation awarded to the owners of the land of village Palaj is concerned. Therefore, learned advocate Mr. Shah has submitted that, in that event, as the learned advocates for the appellants have confined their arguments so far as award of compensation based upon the price value mentioned in the Government Resolution is concerned, he is making his stand clear that he is not making any submission to counter the grounds mentioned in the appeal memo so far as the market value of the land to Page 21 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined be determined on the basis of the sale-deeds executed between the parties for the ad-joining lands. Learned advocate Mr. Shah has submitted that learned advocate Mr. Soni has given three different mode and manner of calculation of the amount of compensation solely putting reliance upon the government resolution, wherein as per his claim, initially the price of the acquired land was determined at Rs.7200/- per square meter and, accordingly, the entire calculation was made, but it is clearly found out from the copy of the resolution that at the relevant point of time, the actual market value of the land acquired by the acquiring body was fixed to Rs.900/- per square meter and the said fact is expressly mentioned in a very categorical terms in the operative part of the resolution. Therefore, by adopting the said mythology, the calculation is required to be made and, accordingly, appeals preferred by the Acquiring Body are required to be allowed by dismissing the appeals preferred by the original claimants. Not only that, as per the judgment and award passed by the learned Principal Civil Judge, Gandhinagar, the Acquiring Body has already deposited the entire decretal amount along with accrued interest before the Trial Court, and out of which, 50% amount has already been withdrawn by the claimants. Therefore, after making appropriate calculation, rest of the amount is required to be given back to the Acquiring Body by allowing the first appeals preferred by the Acquiring Body and rejecting the appeals preferred by the claimants.
18. We have heard the learned advocates appearing for the parties and also gone through the record and proceedings. It Page 22 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined is found out from the record that the claimants have filed the references before the Reference Court under Section 18 of the Land Acquisition Act in the year 2013. As all the land references are belonging to villages Lekawada and Alampur, situated in the vicinity area, the Land Acquisition Officer has passed an order on the same day and, therefore, all those references have been directed to be tried together by consolidating it and the evidences were also laid in one matter by treating the Land Reference Case No.30 of 2013 as the lead matter. To prove their case, the claimants have been examined as the witnesses and two witnesses have been examined by the defendants.
19. We have gone through the record and proceedings and found that the original claimants and the defendants both have put heavy reliance upon certain government resolutions issued by the State of Gujarat for determining the value of the land acquired by the Acquiring Body. Both the parties have put heavily reliance upon the said resolutions wherein the land of village Palaj was acquired by the Government of Gujarat in the year 2003. It is vociferously submitted by the learned advocates for the claimants that copy of the map of the Gandhinagar District was already produced on record and it is clearly found out in the crystal manner from the map that Gandhinagar-Chiloda State Highway is passing through villages Palaj, Lekawada and Alampur and as per the geographical position of the land, the boundaries of villages Lekawada and Alampur are connected with each other, whereas the location of village Palaj is on the other side of the highway. It is the Page 23 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined specific case of the claimants that initially the price of Rs.7200/- per square meter was fixed by the Government of Gujarat so far as the value of the land of village Palaj is concerned. Thereafter, subsequently, an Expert Committee was constituted and after considering and appreciating the position of the lands, the members of the Expert Committee have come to the mature decision that the actual market price and value of the land of village Palaj is fixed at Rs.1811/- per square meter and, accordingly, Government Resolution was issued and notified in the Gazette. The copy of the said resolution was produced on record by way of evidence by the claimants and the said government resolution is part and parcel of the evidence available on record. We have gone through the contents of the said document and it is clearly mentioned in an unequivocal terms that in the operative part of the resolution that after considering and appreciating all the relevant factors of the land of village Palaj, the Expert Committee of the Government Body has come to the conclusion that the price of the land is fixed at Rs.1811/- per square meter. It is also an admitted position of fact that the land of village Palaj was acquired by the Acquiring Body for the purpose of making construction of the Head Quarter of the Indian Air Force, and for that purpose, a Government Notification has been issued in the year 2008. Therefore, the price of the land which was determined by the body of the Expert Committee so far as village Palaj is concerned, the value of the land of village Palaj was considered for the year 2003 when Section 4 notification was issued by the Acquiring Authority. Admittedly, here in the case on hand, the land was Page 24 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined acquired by the Acquiring Body for the purpose of making construction of the Head Quarter of the Border Security Force, and for that purpose, notification under Section 4 was issued in the year 2008. Admittedly, the Acquiring Body had commenced the acquiring proceedings in the year 2008. Therefore, the claimants-original owners whose lands were acquired by the Acquiring Body are entitled to get 10% reasonable rise for per annum as per the settled proposition of law enunciated by the Hon'ble Apex Court as well as our own High Court in catena of decisions. Admittedly, the Acquiring Body has acquired the land of village Palaj in the year 2003, determining the value of the land at Rs.1811/- per square meter and the present land was acquired in the year 2008. Therefore, accordingly, they are entitled to get 10% rise per annum, which would, for the period of five years, come to 50%. Therefore, in the simpliest manner, if the market value determined by the Expert Committee of the Government Body so far as village Palaj is concerned is to be adopted, in that event, 50% rise is required to be given to the claimants.
20. At this juncture we would like to quote some of the observations made by the Hon'ble Apex Court in the case of Maya Devi vs. State of Haryana & Anr., reported in 2018 (2) SCC 474 wherein the Hon'ble Apex Court has held thus;
"6. So far as the first contention is concerned, the sale deed relied upon by the appellants/claimants dated 27.12.1988 is post notification. Sub-section (1) of Section 23 of the Act provides that the compensation to be awarded shall be determined by the reference court, based upon the market value of the acquired land at the date of the publication of the Page 25 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined notification under Section 4(1). In Kolkata Metropolitan Development Authority v. Gobinda Chandra Makal and Anr. (2011) 9 SCC 207, it was held that the relevant date for determining the compensation is the date of publication of the notification under Section 4(1) of the Act in the Gazette. In para (34), it was held as under:-
"34. One of the principles in regard to determination of the market value under Section 23(1) is that the rise in market value after the publication of the notification under Section 4(1) of the Act should not be taken into account for the purpose of determination of market value. If the deeming definition of "publication of the notification" in the amended Section 4(1) is imported as the meaning of the said words in the first clause of Section 23(1), it will lead to anomalous results. The owners of the lands which are the subject-matter of the notification and neighbouring lands will come to know about the proposed acquisition, on the date of publication in the Gazette or in the newspapers. If the giving of public notice of the substance of the notification is delayed by two or three months, there may be several sale transactions in regard to nearby lands in that period, showing a spurt or hike in value in view of the development contemplated on account of the acquisition itself."
Applying the ratio of the above decision, we are of the view that the post notification instances cannot be taken into consideration for determining the compensation of the acquired land.
7. So far as the contention regarding deduction at the rate of 67.5% for development charges is concerned, the exemplar relied upon by the High Court dated 26.05.1983 was for a small extent of land of 9 marlas which was sold for Rs.25,500/-. The transaction relates to the period which is about 56 months prior to the notification under Section 4 of Page 26 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined the Act and the High Court adopted the rate of escalation at 10% and calculated the value at Rs.6,64,887/-. Considering the fact that the acquired land required for development and that the property covered under the exemplar was for a small extent of 9 marlas of land, the High Court applied maximum deduction at 67.5% and calculated the compensation to be paid at Rs.2,19,413/- per acre.
8. In Haryana State Agricultural Market Board and Anr. v. Krishan Kumar and Ors. (2011) 15 SCC 297, this Court has held that "if the value of small developed plots should be the basis, appropriate deductions will have to be made therefrom towards the area to be used for roads, drains, and common facilities like park, open space, etc. Thereafter, further deduction will have to be made towards the cost of development, that is, the cost of leveling the land, cost of laying roads and drains, and the cost of drawing electrical, water and sewer lines."
9. Observing that the development charges for development of particular plot of land could range from 20% to 75%, in Lal Chand v. Union of India and Another (2009) 15 SCC 769, in paras (13), (14) and (20), this Court held as under:
"13. The percentage of 'deduction for development' to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated.
14. The 'deduction for development' consists of two components. The first is with reference to the area required to be utilised for developmental works and the second is the cost of the development works.Page 27 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023
NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined .........
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 unauthorised 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." The same principle was reiterated in Andhra Pradesh Housing Board v. K. Manohar Reddy and Ors. (2010) 12 SCC 707.
10. In a catena of judgments, this Court has taken the view to apply one-third deduction towards the development charges. After referring to various case laws on the question of deduction for development, in Major General Kapil Mehra and Ors. v. Union of India and Anr. (2015) 2 SCC 262, this Court held as under:
"35. Reiterating the rule of one-third deduction towards development, in Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Land Acquisition Officer (2012) 7 SCC 595, this Court in para 19 held as under: (SCC pp. 606-07) "19. In fixing the market value of the acquired land, which is undeveloped or underdeveloped, the courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. In Kasturi v. State of Haryana (2003) 1 SCC 354 the Court held: (SCC pp. 359-60, para 7) '7. ... It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or Page 28 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for road and other civic amenities to develop the land so as to make the plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; maybe the land is situated in the midst of a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurredin developing the area also varies.....................There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, maybe in some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracts are acquired, as in this case, for development purpose.' The rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P. (2003) 10 SCC 525, V. Hanumantha Reddy v. Land Acquisition Officer (2003) 12 SCC 642, H.P. Housing Board v.
Bharat S. Negi (2004) 2 SCC 184 and Kiran Tandon v. Allahabad Development Authority (2004) 10 SCC 745."(emphasis in original)
36. While determining the market value of the acquired land, normally one-third deduction i.e. 33 1/3% towards development charges is Page 29 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined allowed. One-third deduction towards development was allowed in Tehsildar (LA) v. A. Mangala Gowri (1991) 4 SCC 218, Gulzara Singh v. State of Punjab (1993) 4 SCC 245, Santosh Kumari v. State of Haryana (1996) 10 SCC 631, Revenue Divl. Officer and LAO v. Sk. Azam Saheb (2009) 4 SCC 395, A.P. Housing Board v. K. Manohar Reddy (2010) 12 SCC 707, Ashrafi v. State of Haryana (2013) 5 SCC 527 and Kashmir Singh v. State of Haryana (2014) 2 SCC 165.
37. Depending on the nature and location of the acquired land, extent of land required to be set apart and expenses involved for development, 30% to 50% deduction towards development was allowed in Haryana State Agricultural Market Board v. Krishan Kumar (2011) 15 SCC 297, Director, Land Acquisition v. Malla Atchinaidu (2006) 12 SCC 87, Mummidi Apparao v. Nagarjuna Fertilizers & Chemicals Ltd. (2009) 4 SCC 402 and Lal Chand v. Union of India (2009) 15 SCC 769.
38. In few other cases, deduction of more than 50% was upheld. In the facts and circumstances of the case in Basavva v. Land Acquisition Officer (1996) 9 SCC 640, this Court upheld the deduction of 65%. In Kanta Devi v. State of Haryana (2008) 15 SCC 201, deduction of 60% towards development charges was held to be legal. This Court in Subh Ram v. State of Haryana (2010) 1 SCC 444, held that deduction of 67% amount was not improper. Similarly, in Chandrashekar v. Land Acquisition Officer (2012) 1 SCC 390, deduction of 70% was upheld."
11. In Subh Ram and Others v. State of Haryana and Anr. (2010) 1 SCC 444, the deduction of 67% was held to be not improper. In the case in hand, the High Court applied deduction at 67.5% which in our considered view is on the higher side. In the facts Page 30 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined and circumstances of the present case and considering that the exemplar dated 26.05.1983 was for a small extent of land and that the acquired land has to be developed for construction of warehouse, we deem it appropriate to apply one-third deduction and deducting one-third that is Rs.2,21,629/- from Rs.6,64,887/-, the compensation to be awarded is arrived at Rs.4,43,258/- per acre.
12. The impugned judgment is modified and the appellants/claimants are entitled to get enhanced compensation of Rs.4,43,258/- payable with all statutory benefits. The appeals are partly allowed. It is made clear that the appellants/claimants shall not be entitled to claim interest for the period of delay in preferring the appeals from the review."
21. We have verified and scrutinized the record and proceedings and it is clearly found out that at the time of delivering the judgment and assigning findings, the learned Judge has heavily put reliance upon the decision rendered by the Expert Committee of the Government Body and the Government Resolution issued by the Government of Gujarat, Road & Building Department dated 03.10.2003. We have found that the learned Principal Senior Civil Judge, Gandhinagar has considered the evidence available on record in true spirit and proper perspective, but has fallen in error solely on the ground that the government resolution issued by the Government of Gujarat, Road & Building Department on 20.08.2008 for the purpose of determining the market price of the land situated within the notified area of Gandhinagar City except the sector area and the price of the land was fixed at Rs.1630/- per square meter and Rs.1811/- per square meter respectively.
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22. Prima facie, it seems that the said government resolution was issued in the year 2008 and, therefore, the Learned Judge has put reliance upon the price mentioned in the said resolution and, accordingly, the award was passed. However, at the time of passing the order, the learned Judge has not considered the factual aspect of the matter that the said Government Resolution was issued in the year 2008 for the land which was acquired by the Government of Gujarat (Acquiring Body) in the year 2003, whereas in the present case, the situation is altogether different that Section 4 notification was issued on 18.06.2008 and Section 6 notification was issued on 28.08.2009 and, therefore, the claimants are entitled to get 50% reasonable rise of five years long gap between the issuance of two set of different notifications issued on different dates as per the ratio laid down in Maya Devi (supra). It is also found out from the evidence available on record that prices of the lands have been escalated after the Acquiring Body has acquired the land. Therefore, we are of the opinion that the claimants are entitled to get amount of compensation from the date of issuance of Section 4 notification.
23. We have gone through the record and proceedings and also considered the arguments canvassed by the learned advocates for the rival parties. Learned advocate Mr. Soni who appears on behalf of the original claimants has canvassed his arguments essentially putting emphasis on three different major counts. Firstly that the claimants are entitled to get amount as per the Government Resolutions issued by the Road Page 32 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined & Building Department, Government of Gujarat 03.10.2003 and 22.09.2008 and it is clearly stated in the operative part of the resolution that the price of the land of village Palaj which was situated in the vicinity area of village Lekawada and village Alampur was considered to be Rs.7200/- per square meter and the price of the said land was determined in the year 2003 and, thereafter after lapse of five years section 4 notification was issued by the Government of Gujarat in the year 2008 and, therefore, considering the settled proposition of law, 10% reasonable rise per annum is required to be given and as the difference between the two notifications is more than five years, 50% rise is required to be given and, accordingly, he has determined Rs.10,800/- per square meter and submitted that the claimants have sought only 10,000/- per square meter. However, after making said submissions, learned advocate Mr. Soni has submitted that he is not putting much emphasis upon the said set of arguments at this juncture. Learned advocate Mr. Soni has alternatively argued that as the quality, condition and situation of the land of villages Lekawada and Alampur is quite different and better one, the claimants are entitled to get 30% more amount as per the settled proposition of law.
24. Learned advocate Mr. Soni has put much emphasis upon second limb of arguments and vociferously submitted that one Shri Om Prakash Pandya, a Government Approved Agricultural Valuer was examined by the claimants. The said witness has deposed in a very categorically terms that he has personally paid visit to the said villages and after considering and Page 33 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined appreciating the position and situation of the lands and after adopting the basic and requisite mode of calculation to calculate the actual market value of the land acquired by the Acquiring Body, he has determined the value of the land considering various factors of the property by adopting latest technical method to calculate the price of the land and, accordingly, evaluated the price of the land. The said witness was an expert witness and by adopting all the latest technology and different modes of calculation of the price of the land, has determined the value of the land. The defendants have extensively made cross-examination of the said witness but could not be able to get any fruitful result on the basis of which it can be said that the evidence of the said witness can be brushed aside or can be said to be non-believable or non- trustable. Learned advocate Mr. Soni has further submitted that not only that, along with this, the claimants have produced certain other set of evidence which clearly goes on to show that the price of the land has been more than Rs.10,800/- per square meter at the relevant point of time. Learned advocate Mr. Soni after canvassing the said arguments has submitted that the Hon'ble Court can consider either mode of the calculation and, accordingly, the amount of compensation awarded by the learned Principal Senior Civil Judge, Gandhinagar is required to be enhanced.
25. We have gone through the record and proceedings as well as evidence available on record. We have also considered the arguments canvassed by the learned advocates for the rival parties. We have also gone through the Government Page 34 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined Resolution issued by the State of Gujarat in the year 2008. it is an admitted position of fact that the Government has acquired the land of village Palaj in the year 2003 for the purpose of making construction of the Headquarter of the Air Force. The Acquiring Body has fixed the price of the acquired land at Rs.7200/- per square meter, but subsequently, considering the ground reality of the matter as well as condition, location and situation of the land, an Expert Committee was constituted by the Government with a sole purpose to ascertain the actual market value of the said land at the relevant point of time. The Expert Committee has considered almost all aspects directly or indirectly connected with the market value of the land and considered the price value of the land at Rs.1811/- per square meter by reducing it from Rs.7200/- per square meter, and on the strength of the said Expert Committee's report, Government Resolution was issued and, thereafter, subsequently, amount of compensation was awarded to the claimants concerned. The Government Resolution issued by the State of Gujarat was published in the Government Gazette in the year 2008. As the said land was acquired in the year 2003 and as per the condition mentioned in the said Government Resolution that the effect of the resolution would be started to be counted from the date of issuance of notification under Section 4. Admittedly, the land was acquired in the year 2003 and Government Resolution based upon the Expert Committee's report was issued in the year 2008, whereas in the present case, notification under Section 4 was published in the Government Gazette on 18.06.2008 and, thereafter, notification under Section 6 was published on Page 35 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined 28.08.2009. The learned Reference Court has put heavily reliance upon the wording of the said Government Resolutions and emphatically opined that the claimants are entitled to get compensation at the rate of market value fixed by the Expert Committee and on the strength of the which Government Resolution was issued in the year 2008 as the present land was acquired in the year 2008. Therefore, as per the market value determined by the Government in the Government Resolution, the claimants are entitled to get amount of compensation as per the market value fixed in the Government Resolution. It is an admitted position of fact that the land upon which reliance is being placed by the learned Reference Court was in fact acquired in the year 2003 and based upon the report of the Expert Committee, Government Resolution was issued by the State of Gujarat in the year 2008, whereas in the present case, as stated above, notification under Section 4 was issued in the year 2008 and, therefore, as per the settled proposition of law, the claimants are entitled to get 10% rise per annum as there was difference of five years between the issuance of two notifications and, therefore, the claimants are entitled to get 10% rise which after multiplying with five, would come to 50% rise than the actual market value mentioned in the Government Resolution. Therefore, we deem it fit that the claimants are entitled to get 50% rise in the price of the acquired land which would come to Rs.2716.50/- per square meter.
26. For the purpose of coming to the aforesaid conclusion, at this juncture, we would like to quote certain observations Page 36 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined made by the Hon'ble Apex Court as well as our own High Court in the decisions relied upon by the learned advocate appearing for the claimants.
27. In the case of Thakarshibhai Devjibhai (supra), it is held by the Hon'ble Apex Court that if the distance of the two villages from where the land was acquired is nearby from the same headquarter and if any decision is already being taken in respect of the land pertaining to any of the two villages, in that event, the basic principle of mode of calculation adopted in the earlier decision would also require to be adopted in the subsequent proceedings in respect of the land acquired by the Acquiring Body subsequently. The observations made by the Hon'ble Apex Court in para-12 are as under;
"12. As we have said above the High Court fell into error by reducing the quantum of compensation on this basis. The reduction has been made for two reasons, one that the present acquisition is of larger area and the second the distance between the land under acquisition and Ex. 16 is about 5 kms. With reference to question of acquisition being of a larger area, the error is, when we scan we find for the acquisition of each land owner, It could not be said that the acquisition is of a large area. Largeness is merely when each land holders land is clubbed together then the area becomes large. Each landowners holdings are of small area. Even otherwise visioning in the line with submission for the State we find Ex. 16 is about two hectares of land which cannot be said to be of small piece of land. So far the other question of distance between the two classes of lands, that by itself cannot derogate the claim of the claimant unless there are some such other materials to show that quality and potentiality of such land is inferior. However, Page 37 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined distance between the land under Ex. 16 and the present land even if they are 5 kms. apart would not be relevant, the relevancy could be, their distances from the Viramgam town. We find, as per map produced by the State the present acquired land is about 3 kms. away from it, while the land under Ex. 16 is about two kilometers away from it. This difference is not such to lead to reduce the rate of compensation, specially on the facts of this case. In the present case, as we have recorded above, it has been found that the quality including potentiality of land between Exh. 16 and the present one are similar. No evidence has been led on behalf of the State to find difference between the two. In view of this, the inference drawn by the High Court for reducing the compensation by Rs. 10/- per sq. mtr. cannot be sustained."
28. In the case of General Manager, ONGC Ltd. (supra), this High Court in paras-4, 6,9 and 11 held as under;
"4.1 Mr. Soni further contended that once the initial burden is discharged, the onus shifts on the other side. In the case before us, the onus shifted to the appellant but the appellant failed to produce any evidence showing that the assertion of the witness examined on behalf of the claimants was wrong.
6. After hearing the learned counsel for the parties and after going through the materials on record, we agree with Mr. Mehta, the learned advocate appearing on behalf of the appellant, that the initial burden is upon the claimants to prove that the amount awarded by the Special Land Acquisition Officer was inadequate and it is also the duty of the claimants to prove the actual market value. However, the law is now well settled that even if the initial burden is upon a particular party, in the course of the trial, once some evidence is adduced in discharge of the initial burden, the onus consequently shifts to the respondents to produce evidence to show that the assertion of the witness Page 38 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined examined on behalf of the plaintiff was wrong. In the case before us, as already pointed out, the witness examined on behalf of the claimants has in detail described the location of the land which is at a distance of 4 to 5 kms from Pethapur, and has also asserted that the claimants used to take three crops in a year and that the modern facilities for cultivation are available to the claimants. Although some suggestions were given to the said witness that those assertions are wrong, the sole witness for the appellant-ONGC has admitted that modern facilities of cultivation are available with the claimants. He further admitted that he did not actually see the acquired lands and he was giving the oral evidence by only reading the award. Such being the admission of the sole witness examined on behalf of ONGC, we cannot rely upon his assertion regarding the nature of land and in such situation, we are left with no other alternative but to believe the evidence given by the witness examined on behalf of the claimants which has remained uncontroverted. It is well-settled law that unless the evidence adduced by the witness for the party upon whom the onus lies is found to be incorrect from his own deposition or otherwise inherently impossible, a Court should not generally disbelieve such version in the absence of any contrary evidence given by the opponent. In the case before us, the version of the claimant is also supported by the certificates given by the Talati-cum-Mantri, which are exhibited and no suggestion was given that those were not genuine and were fabricated ones or that the contents thereof was not true. If any such assertion was made, the claimants were then further required to bring the author of the certificates; but in the absence of even any suggestion in this regard, there was no necessity of producing the author of the certificate, more particularly, when there is no other evidence to the contrary. The claimants having discharged the initial burden, it was for the State or the Appellant, to produce some evidence showing that the assertion of the PW- 1 was wrong or that the land in question was in any respect inferior to the Page 39 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined one in respect of the adjoining village for which value has been assessed at Rs. 353/- per sq. mtr."
9. In the absence of any cogent evidence produced by the acquiring body or the State showing that the assertion of the claimants is false, we are left with no other alternative but to believe the evidence adduced on behalf of the referring claimants.
11. In the cases before us, both the parties have led evidence on the question of valuation of the land in question. The appellant who is a party to the judgment in respect of the land of the adjoining village (whereas the claimants are not) had some responsibility to explain that the quality of the land involved therein was better than the one which is the subject-matter of the present litigation. Thus, the abstract doctrine of burden of proof does not help the appellant when the initial burden has been discharged by the claimants."
29. In the case of Mahesh Dattaray Tirthkumar (supra), the Hon'ble Apex Court has held in paras-27,28, 30 and 34 as under;
"27. We now turn to the issue of sufficiency of evidence adduced by the appellant to prove its claim of enhancement of compensation. It is a well- established proposition of law that the burden of proving the true market value of acquired property is on the State that has acquired it for a particular purpose (See Land Acquisition Officer & Mandal Revenue Officer v. V. Narasaiah, (2001) 3 SCC 530). It appears from the record that the State had only produced a valuers' report of a government engineer in order to substantiate its claim of market value, whereas the claimant has produced a valuation report and sale transaction from which it will appear that the claimant has successfully proved the market value of the acquired property as determined by the Reference Court. Therefore, it can be legitimately Page 40 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined concluded that the burden of proving inadequacy of the amount which lay on the claimant was successfully discharged by him.
28. In Special Land Acquisition Officer v. Sidappa Omanna Tumari & Ors. (1995 Supp (2) SCC 168) it was held that a report of an expert for establishing the market value can be acted upon by the Court if "relevant factual data or material which constituted basis for the report is also produced and the same is proved to be genuine and reliable and the method adopted by the expert is found to be recognized and correct." In this appeal, the report of the engineer engaged by the appellant to prove the market value of the acquired property, is based on his personal visit to the site of the acquired property, the map drawn by him after taking the measurements of the acquired property and the valuation report made by him after deducting the cost of depreciation. The valuer of the appellant has also submitted a map as well as the cost of depreciation report and the valuation report. He has also given details of the date of his visit to the said property in 1985. Further, it is not disputed that he has used the PWD practice and standard engineering norms while deciding the value of the acquired property. All these factors seem to make the valuation of the expert valuer worthy of credence, as per the ratio of the above- stated case.
30. It is clear that the High Court has completely overlooked the lack of evidence in support of the contentions of the Respondent and the conclusion of the High Court is backed only by assertions rather than by acceptable reasoning based on proper appreciation of evidence. This being the case, the order of the High Court cannot be sustained, as held in the case of Othayath Lekshmy Amma & Anr. v. Nellachinkuniyil Govindan Nair & Ors. ((1990) 3 SCC
374). We are thus inclined to accept the contention of the appellant that the High Court has relied merely on suggestions made by the State-
Respondent in cross-examinations, when they have Page 41 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined failed to derive any admissions on the basis of these suggestions.
34.Further, the inconsistency pointed out in the testimony of the expert valuer is that he stated in the cross- examination that it is necessary for valuation of the acquired property to consider the type of material used in the construction of the same and the place from which the materials were procured and in the examination-in-chief, he agreed that he did not see any report regarding the same. These statements are, however, not contradictory. While it might be necessary for the valuer to consider the abovementioned factors in the process of his valuation, it is not necessary for him to rely on the report of another person with regard to the same. He, being an expert in his field, can rely on his own knowledge, experience and judgment to come to conclusions regarding these aspects of the acquired property. Thus, the testimony of the expert valuer is not rendered discredited on this ground."
30. In R. Saragapani (supra), the Hon'ble Supreme Court in para-16 held thus;
"16. Adverting to the arguments of the learned senior counsel on the issue of fixing market value of the trees, we find that while the Reference Court had relied upon reports dated 7.11.1992 and 20.11.1992 of Shri P. Nagarajan, Agricultural Development Officer and the Court Commissioner for the purpose of recording a finding that as on the date of notification under Section 4(1) of the Act, the age of the trees could be 8 to 9 years and in due course even the flowering trees would become fruit bearing trees and yield income for next 60 to 70 years. The High Court totally ignored the two reports and fixed market value of young trees by treating the same as timber. Learned senior counsel for the respondent could not put forward any tangible argument as to why the report of an expert should not be relied upon for the Page 42 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined purpose of fixing value of the trees with reference to their expected yield. Therefore, we are convinced that the High Court committed an error by upsetting the view taken by the Reference Court on the issue of market value of the trees."
31. In Siddappa Omanna Tumari (supra), the Hon'ble Apex Court, in para-17, has held as under;
"17. Therefore, when a report of an expert is got produced by a claimant before the court giving market value of the acquired lands, the court may, choose to act upon such report for determination of the amount of compensation payable for the acquired lands, if the data or the material on the basis of which such report is based is produced before the court and the authenticity of the same is made good and the method of valuation adopted therein is correct."
32. In Mehrawal Kheraji Trust (supra), it is held by the Hon'ble Supreme Court as under;
"15. It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bona fide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the Page 43 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined authority/court for fixing fair compensation."
33. Lastly, in the case of Bhaikhaji (supra), this High Court, in para-3, has held thus;
"3. It is contended that though the Reference Court has determined the market value at the rate of Rs.280/ per sq.mtrs. as well as Rs.306/ per sq.mtrs. in respectively Reference, he has not awarded the compensation at that rate, which is erroneous. It is also contended that the amount of compensation, which has been arrived at by the Reference Court at the rate of Rs.280/ per sq.mtrs. as well as Rs.306/ per sq.mtrs. In respectively Reference with statutory benefit may be awarded and the development charges, which has been deducted, is erroneous. It is also contended that the lands of Village : Jethlaj are the agricultural land and the Court below has failed to appreciate that the land in question and the other land of same taluka are of same type of same village and, therefore, the question of deduction of development charges would not arise. It is, therefore, contended that the deduction of 20% development charges is unjustified and the Reference Court ought not to have deducted from the market value at the rate of Rs.280/ as well as Rs.306/ per sq.mtrs. in respectively Reference. Reliance is also placed on the judgment of the Hon'ble Apex Court in case of C.R. Nagaraja Shetty Vs. Special Land Acquisition Officer & Estate Officer & Anr. reported in AIR 2009 SC 2184."
34. At the time of canvassing his arguments, learned advocate Mr. Soni has put much emphasis upon the wordings employed by the Land Acquisition Officer at the time of passing the award under Section 11 of the Land Acquisition Act. Learned advocate Mr. Soni has submitted that the Special Page 44 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined Land Acquisition Officer, in its award, has described the position and situation of the land and it is clearly stated in the award that the land was an agricultural land, flat one and the claimants were yielding the crops of cotton, rice, castor, millet, sorghum and vegetables so far as villages Lekawada and Alampur is concerned. Therefore, the position of the land of villages Lekawada and Alampur is quite different and distinct than the village Palaj and, therefore, the claimants are entitled to get an additional amount of compensation of 30% so far as quality and potentiality of the land is concerned. It is clearly stated by the body of the Expert Committed in the operative part of the resolution that the condition and position of the land of village Palaj is not upto the mark and they have described that the said land is not flat one, fertile, far away from Gamtal land. Per contra, learned advocate Mr. Shah has submitted that it is clearly stated by the Land Acquisition Officer that there was distance of more than 2 k.m. between the village and the location of the land which was acquired by the Acquiring Body. The population of the village is not much more. There was no any big industrial and business activities being carried out in the said village and, therefore, it cannot be said that the acquired land was in a developed village. Not only that, the location of the land is exactly on the opposite direction of village Palaj and as per the evidence produced by the claimants themselves that certain boundaries of village Palaj are touching with village Alampur. Therefore, by no stretch of imagination, it can be said that the condition, quality and location of villages Lekawada and Alampur are different than the village Palaj.
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35. We have verified the record and proceedings and we have also gone through the evidence available on record. We have also verified the map produced by the parties and after verifying and scrutinizing the said material available on record, we have jumped to the conclusion that as the location of villages Lekawada and Alampur is close to village Palaj and prima facie it seems that the position of the lands are identical in nature and very close to each other, therefore, same price which is mentioned in the Government Resolution issued in the year 2008, i.,e Rs.1811/- per square meter is required to be awarded but considering the potentiality, condition and situation of the land, we are of the opinion that the claimants are not entitled to get 30% further rise on that basis.
36. In view of the aforesaid discussion and as per the ratio laid down by the Hon'ble Apex Court in the decisions, referred to above, we are of the opinion that the judgment and award passed by the learned Reference Court is required to be modified by enhancing the amount of compensation. Thus, we are of the opinion that the claimants are entitled to get compensation of Rs.1811/- per square with 50% rise (10% rise per annum from the year 2003 to 2008). Accordingly, the claimants are entitled to get total compensation of Rs.2716.50/- per square meter [Rs.1811+905.5 (50% rise)=2716.50/-]. The Acquiring Body is hereby directed to calculate the amount of compensation at Rs.2716.50 per square meter, and after making appropriate calculation, shall deposit the amount of compensation before the learned Reference Court after deducting the amount which has already Page 46 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023 NEUTRAL CITATION C/FA/1659/2016 CAV JUDGMENT DATED: 27/09/2023 undefined been withdrawn by the original claimants.
37. We make it clear that so far as First Appeal No.2932 of 2016 is concerned, one Civil Application No.10791 of 2017 was preferred by the siblings of the appellants for seeking their part of compensation from the awarded amount wherein the Coordinate Bench of this Court has passed an order on 10.10.2017 specifically stating that the parties have arrived at broad consensus without any prejudice to their contentions qua their respective claimant's right and entitlement to get 25% each from the 50% amount which was ordered to be disbursed. Learned advocate for the claimants of First Appeal No.2932 of 2016 has stated that his clients have no objection if the remaining amount of compensation would also be ordered to be disbursed in the same manner as stated in the order dated 10.10.2017 passed in Civil Application No.10791 of 2017. Accordingly, the learned Reference Court is directed to disburse the remaining amount of compensation in equal proportion in favour of the claimants upon proper verification so far as First Appeal No.2932 of 2016 is concerned.
38. With the aforesaid observations, the appeals filed by the original claimants are hereby partly allowed. Consequently the appeals filed by the State Authorities are hereby dismissed. Record and Proceedings be sent back to the concerned trial court forthwith.
(ASHUTOSH SHASTRI, J) (DIVYESH A. JOSHI,J) VAHID Page 47 of 47 Downloaded on : Wed Sep 27 20:47:34 IST 2023