Gujarat High Court
The Addl. Spl. Land Acq. Officer vs Ashwamegh (Sola) Co.Op.Ha.So.Limited on 6 February, 2023
Author: Sonia Gokani
Bench: Sonia Gokani
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 857 of 2018
With
R/FIRST APPEAL NO. 858 of 2018
With
R/FIRST APPEAL NO. 859 of 2018
With
R/FIRST APPEAL NO. 860 of 2018
With
R/FIRST APPEAL NO. 861 of 2018
With
R/FIRST APPEAL NO. 862 of 2018
With
R/FIRST APPEAL NO. 864 of 2018
With
R/FIRST APPEAL NO. 866 of 2018
With
R/FIRST APPEAL NO. 863 of 2018
With
R/FIRST APPEAL NO. 867 of 2018
With
R/FIRST APPEAL NO. 868 of 2018
With
R/FIRST APPEAL NO. 869 of 2018
With
R/FIRST APPEAL NO. 870 of 2018
With
R/FIRST APPEAL NO. 871 of 2018
With
R/FIRST APPEAL NO. 872 of 2018
With
R/CROSS OBJECTION NO. 145 of 2022
In
FIRST APPEAL NO. 858 of 2018
With
R/CROSS OBJECTION NO. 156 of 2022
In
FIRST APPEAL NO. 859 of 2018
With
R/CROSS OBJECTION NO. 146 of 2022
In
FIRST APPEAL NO. 860 of 2018
With
R/CROSS OBJECTION NO. 147 of 2022
In
Page 1 of 110
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C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023
FIRST APPEAL NO. 861 of 2018
With
R/CROSS OBJECTION NO. 148 of 2022
In
FIRST APPEAL NO. 863 of 2018
With
R/CROSS OBJECTION NO. 149 of 2022
In
FIRST APPEAL NO. 864 of 2018
With
R/CROSS OBJECTION NO. 150 of 2022
In
FIRST APPEAL NO. 866 of 2018
With
R/CROSS OBJECTION NO. 151 of 2022
In
FIRST APPEAL NO. 867 of 2018
With
R/CROSS OBJECTION NO. 152 of 2022
In
FIRST APPEAL NO. 868 of 2018
With
R/CROSS OBJECTION NO. 153 of 2022
In
FIRST APPEAL NO. 869 of 2018
With
R/CROSS OBJECTION NO. 154 of 2022
In
FIRST APPEAL NO. 870 of 2018
With
R/CROSS OBJECTION NO. 155 of 2022
In
FIRST APPEAL NO. 871 of 2018
With
R/FIRST APPEAL NO. 3297 of 2017
With
R/FIRST APPEAL NO. 3298 of 2017
With
R/CROSS OBJECTION NO. 93 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
==========================================================
THE ADDL. SPL. LAND ACQ. OFFICER & 2 other(s)
Versus
ASHWAMEGH (SOLA) CO.OP.HA.SO.LIMITED
==========================================================
Appearance:
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MS.
SHRUTI PATHAK, for the Appellant(s) No. 1,2,3
(MR H A SHAH)(6071) for the Defendant(s) No. 1
MR SHALIN MEHTA, SR. ADV. with J K GANDHI(7482) for the Defendant(s)
No. 1
RULE SERVED for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 06/02/2023
CAV JUDGMENT
1. Feeling aggrieved and dissatisfied by the impugned judgment and award dated 06.03.2017 passed by the learned Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad (hereinafter be referred to as "the Reference Court") in Land Reference Case No.8 of 2012, the appellants - State Authorities have preferred the aforesaid first appeals Page 3 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 under Section 54 of the Land Acquisition Act, 1894 (hereinafter for the sake of brevity and convenience be referred as "the Act") and Section 96 of the Civil Procedure Code, 1908 (hereinafter for the sake of brevity and convenience be referred as "the Code").
2. The claimants have also filed First Appeal Nos.3297 of 2017 and 3298 of 2017 and Cross-Objections challenging the very impugned judgment and award. Since the matters are arising out of the same judgment and award, they are heard analogously and are being disposed of by this common judgment.
Factual Matrix:-
3. Brief facts of the present case are as under:-
3.1 That appellant no.2-Executive Engineer made a proposal of acquiring the lands situated at Mauje Sola, Taluka: Dascroi, District: Ahmedabad for the public purpose i.e. for extension of the complex of this Court for the land bearing survey numbers 166/1, 166/2, 169, 170, 171/1, 171/2, 171/4, 220/1, 220/2, 220/3, 220/4, 220/5, 220/6, 220/7, 221, 222, 223/1, 223/2, 223/3, 224/1, 224/2, 253 admeasuring 83,152 square Page 4 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 meters situated abutting the Sarkhej - Gandhinagar Highway (S.G.Highway) where the Land Acquisition Officer awarded compensation of Rs. 550/- per square meter which were required to be considered by the Reference Court and accordingly, appellant no.1 had acquired the lands. The applications under Section 18 against the award passed for Phase-I was pending for the adjudication before the Reference Court. The notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter for the sake of brevity and convenience be referred as "the LA Act") was published on 04.02.2009 and notification under Section 6 of the LA Act was also published on 05.02.2010 and, thereafter, the impugned award under Section 11 of the LA Act came to be passed on 31.01.2012 by the Land Acquisition Officer in LAQ Case No.4 of 2009 whereby the Land Acquisition Officer awarded compensation for the acquired lands at the rate of Rs.1,080/-
per square meter.
3.2 Being aggrieved by the impugned award dated 31.01.2012, the claimants had preferred in all fifteen reference cases under Section 18 of the LA Act claiming compensation of Rs.45,000/- per square meter. Page 5 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 3.3 These lands are acquired for the public purpose and accordingly, a public notice was issued under Sections 4 and 6 of the LA Act and, considering the relevant factors i.e. location, fertility of the lands, crops prospect of the development of the village and the potency of acquiring land, Special Land Acquisition Officer decided the rate of compensation on the basis of average sale price or previous five years sale transactions.
3.4 Against such award of the Special Land Acquisition Officer, the original claimants preferred Land Reference Case No.8 of 2012 under Section 18 of the L.A. Act before the learned Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad.
Land Reference Cases & Award:-
4. The Reference Court in these group of reference cases was prayed to grant Rs. 45,000/- as market value per square meter in place of the award of compensation of Rs. 1,080/- per square meter. The claimants received interim compensation as per the award of the Collector which they accepted with Page 6 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 the objections.
4.1. The objections on behalf of the appellant - State had been filed at Exh. 8 on 04.07.2014 urging before the Reference Court that the market value would need to be determined on the basis of the neighbouring locality. The award being reasonable and proper, the claimants' applications deserved no entertainment. 4.2. The Reference Court framed the following issues vide Exh.9:-
"(1) Whether claimant proves that compensation awarded by the Spl. Land Acquisition Officer is inadequate and not proper?
(2) Whether claimant is entitled to get additional compensation, if yes, to what extent and amount?"
4.3. The findings of the Court are as follows:-
"(1) In the affirmative.
(2) As per final order."
4.4. The original and documentary evidence produced on behalf of the applicants- claimants are as follows:- Page 7 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
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original opponents, the documentary evidences produced were (i) copy of LAQ Case No. 4/09/744-745 by Town Planner (Exh. 182), (ii) copy of Assessment Report by Town Planning and Assessment Department, Ahmedabad (Exh. 183), (iii) copy Page 22 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 of Sales Plan (Exh. 184) and, (iv) copy of Schedule of Assessment of land, Town Planning and Assessment Department (Exh. 185).
4.6. The Court adjudicated both the issues jointly where the valuation report of the Government Valuer Mr. A.Y. Chhipa has been taken note of. The sale deed of Survey No. 202 of Village Sola registered at sr.no. 14098/2007 dated 18.02.2007 is made the basis for grant of compensation. 4.7. Taking note of the sale instance by way of registered sale deed executed between the Gujarat Tourism Corporation and US Company Pacifica Developers Private Limited, for the 9140 square meters of lands sold at the price of Rs. 22,87,00,000/-, which worked out to Rs. 25,021/- per square meter as the market rate. The sale price of Rs. 65,000/- per square meter for Vastrapur Town Planning Scheme and other details have been considered coupled with the fact that this is 200 to 300 meters away from the S.G.Highway road and therefore, the difference of location is taken note of. 4.8. On the basis of this limited discussion and the written Page 23 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 arguments of both the sides, the Court chose to give additional compensation of Rs. 21,000/- per square meter against the amount awarded by the Collector and the Land Acquisition Officer.
4.9. The operative order of the said reference as follows:-
"1. Claim of this reference is hereby allowed with cost.
2. Market value of the acquired lands, including Collector Award is arrived at Rs. 22,080/- per Sq. Mtr. and Acquiring Body is directed to pay additional compensation of Rs. 21,000/- per Sq. Mtr. with all statutory benefits to the claimants.
3. Award to be drawn accordingly."
4.10. On the strength thereof, the award has been drawn by the Reference Court.
Appeals:-
5. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 06.03.2017, the appellants preferred the present appeal and the respondents- original claimants have also preferred the cross appeals and cross objections.
Page 24 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 5.1. Some of the claimants have preferred First Appeal Nos.3297 and 3298 of 2017 before this Court for enhancement of the amount of compensation, which came to be admitted by the Division Bench of this Court on 02.11.2017.
6. This Court [Coram:- Mr. S.R.Brahmbhatt and Mr. A.G.Uraizee, JJ.] while admitting the First Appeal No. 857/2018 on 18.04.2018, passed the following order:-
"FIRST APPEAL NO. 857 of 2018:
ADMIT CIVIL APPLICATION NO. 1 of 2018:
Rule returnable on 18.06.2018. By way of ad interim relief, the award impugned shall remain stayed on the condition of the appellant depositing the entire amount of the award on or before eight weeks from today."
6.1. During the pendency of appeals, some of the claimants made a request for interim relief regarding the depositing of enhanced amount of compensation. This Court [Coram: Mr. R.M.Chhaya and Mr. Paresh Upadhyay, JJ.] vide order dated 16.12.2019 had rejected the interim relief claimed by the appellants by passing the following order:- Page 25 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 "1. Heard Ms. Manisha L. Shah, learned Government Pleader with Mr. Tirthraj Pandya, learned AGP for the applicant and Mr. Percy Kavina, learned Sr. Advocate assisted by Mr. J.K. Gandhi, learned advocate for the opponents.
2. Having heard the learned advocates appearing for the parties and considering the earlier order dated 18.04.2018 as well as the order passed in Misc.
Civil Application No.3/18 in F.A. No. 857 of 2018 dated 27.06.2018 as well as further order dated 19.02.2018 passed upon Misc. Civil Application No.3/18 in F.A. No. 857 of 2018, the fact remains that what is challenged by the applicant-appellant is the award under section
18. In facts of this case, the stay which is granted earlier on condition of depositing the entire amount of the award does not require any re-look as contended by Ms. Shah, learned Govt. Pleader. However, at the request of Ms. Shah, time to deposit the amount is granted for a period of eight weeks from today.
3. Civil Applications stand disposed of." 6.2. The matter travelled to the Apex Court challenging this rejection wherein in Civil Appeal Nos. 4506-4520 of 2021, the Apex Court passed the following order on 30.07.2021:-
"Leave granted.
These appeals take exception to the judgment and order dated 16.12.2019 passed by the High Court of Gujarat at Ahmadabad in FA Nos. 857- 864/2018 and FA No. 866-872/2018, rejecting the interim relief claimed by the appellant regarding depositing the enhanced compensation amount.
After hearing learned counsel for the parties, we are of the considered opinion that in the fact situation of the present case, the appellant shall Page 26 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 deposit 25% of the enhanced amount within six weeks from today.
The claimants would be entitled to withdraw that amount only after furnishing Bank Guarantee or solvent Security for the like amount, which is withdrawn by them, including an undertaking that they will abide by the final orders that may be passed in the appeal.
In other words, if the appeal filed by the appellant, which is pending before the High Court, succeeds and the claimants are directed to refund the amount, they may have to do so along with interest, as may be quantified by the High Court, while disposing of the appeal.
We are conscious of the fact that there was no formal application by the claimants for withdrawal of the amount, but in the peculiar facts of the present case and to avoid multiplicity of the proceedings, we have allowed the claimants to withdraw the amount that may be deposited by the appellant subject to fulfilling the conditions mentioned hitherto.
Besides this, nothing more is required to be said in these appeals.
We request the High Court to take up the pending appeals for final hearing expeditiously and preferably dispose of the same by end of June, 2022, considering the fact that the compensation amount involved is quite substantial and if the appeals fail and the State is required to pay the amount, it would be an additional burden on the State exchequer towards interest for delayed payment.
The appeals are disposed of in the above terms.
Pending applications, if any, shall stand disposed of."Page 27 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 6.3. Eventually, all these matters came to be placed before this Court for final hearing.
7. The essential thrust of submissions and resistance on the part of the State is the distance of the sale exemplar from the said land being 1100 square meters and the very purpose of acquisition, according to the State, is different than what was there when the Pacifica purchased the land from the Gujarat Tourism Corporation and yet 22 times enhancement, in no manner, can be justifiable, more particularly, when neither Mr. Chhipa is examined nor any methodology as convincing to anyone is on record.
Oral & Written Submissions of Ld. Government Pleader:-
8. We have extensively heard Ms.Manisha Shah, learned Government Pleader assisted by Ms. Shruti Pathak appearing for the appellants and Mr.Shalin Mehta, learned senior counsel assisted by Mr.J. K. Gandhi and Mr. Pinank Raiyani, learned counsels appearing for the respondents.
9. Ms.Shah, learned Government Pleader appearing for the Page 28 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 appellants has submitted that impugned judgment and order passed by the Reference Court is without any cogent reasons and the entire amount of compensation is enhanced to the extent of 22 times solely on the basis of a single sale instance. She has further strenuously added that the reference application preferred by the claimants were time barred under Section 18 of the LA Act and the Special Land Acquisition Officer has awarded the compensation vide order dated 31.01.2012, despite such glaring aspect and the Reference Court has also awarded additional compensation, which is on a higher side. While referring to the award of the Special Land Acquisition Officer, she has submitted that the Special Land Acquisition Officer has considered the entire spectrum of factors while fixing the rate of the land. She has submitted that at the time of cross-examination, the witness of the claimants stated that he had no evidence to show that he was taking crops three times in a year and also has not kept the account of income and expenses and has no evidence regarding the potentiality of the land. She has submitted that the Special Land Acquisition Officer has awarded adequate compensation and there is no reason for enhancing the said amount. She has submitted that considering the quality of Page 29 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 fertility of the acquired lands as also the development of the area, the Special Land Acquisition Officer passed the impugned award and taken into consideration the market price prevailing at the time of issuance of the Notification under Section 4 of the LA Act and revenue records, which are required to be considered for determination of the market value of the acquired land. She has urged that the claimants demanded higher amount, though they have not substantiated their requests with documentary evidence to determine the price of the land. She has submitted that the Reference Court awarded compensation relying on sale instance for the year 2007, however, it appears that the said sale instance is only for the lands admeasuring 9140 square meters, whereas, the lands in question under acquisition was 83152 square meters and, therefore, 75% deduction is required in the case of smallness and largeness of the lands, as per the decision of the Apex Court in the case of Chandrashekar (D) By Lrs. Versus Land Acquisition Officer, reported in (2012) 1 SCC
390. She has submitted that the necessary pre-conditions for applying the previous award are not fulfilled as indicated time and again by the Apex Court in various decisions. Page 30 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 9.1. Ms.Shah, learned Government Pleader, while referring to the evidence of the Deputy Collector, Ahmedabad at Exhibit 181, has submitted that the Deputy Collector stated that for the purpose of determination of value of the land, the valuation reports of the Town Planner, Sales Plan and Sale Deeds etc. have been taken into consideration. The Reference Court has erred, according to her, in considering the sale deed of the year 2007, which was entered into between the Gujarat Tourism Corporation and Pacifica Developers Pvt. Ltd @ Sola Project Development Company. She pointed out a difference between the two parcels of lands which according to her is quite significant. She has submitted the chart which demonstrated distinguishing features between the lands acquired in the present proceedings and the sale instance relied upon by the Reference Court:-
Particulars Sale deed relied Subject land under upon by Reference acquisition Court Parties to Gujarat tourism Sale Transactions between the Sale Corporation Ltd. And different parties as there Deeds Pacifica Developers are several parcels of lands.
(Sola Project) Ltd.
Area of 9140 square meters 83152 square meters large land small parcel parcel Page 31 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Location Abutting Sola Situated behind the High Highway, Opp. Sola Court premises and Civil Hospital surrounded by residential (situated on main societies highway) Date of 18.12.2007 2005-2009 transaction Town Draft Town Planning Draft Town Planning Planning Scheme No. 28 at Scheme No. 43 (Sola) Scheme Sola - Gota - No. Chandlodiya
Survey No. Survey No.202, F.P. Survey Nos. 166/1, 166/2, No.72/1, Moje: Sola, 170, 171/1, 171/2, 171/4, Taluka: Dascroi 220/1, 220/2, 220/3, 220/4, 220/5, 220/6, 220/7, 221, 222, 223/1, 223/2, 223/3, 224/1, 224/2, 252, 253 at Moje: Sola, Taluka: Dascroi.
Taluka Dascroi (Now Dascroi (Now Ghatlodiya) Ghatlodiya) Type of Non-Agriculture Non-Agriculture -
land (Commercial) Residential purpose qua
survey Nos.166/1, 166/2,
222 paike, 224/1. The other
survey numbers were
agricultural lands
On relying upon the said chart, she has submitted that there is a vast difference in the nature, location and area of the lands on which reliance is placed by the original claimants and the sale instance on which reliance is placed is situated at a distance of approximately 600 to 700 meters away from the acquired lands. She has submitted that from the deposition of the Chief City Planner, Ahmedabad Municipal Corporation at Page 32 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Exhibit 175, it appears that the said officer has stated in his examination-in-chief that the distance between the land situated in T.P. Scheme No.28 and the present land in question is 1100 meters. It is submitted by Ms.Shah, learned Government Pleader that the Reference Court has committed an error in estimating Rs.22,080/- on the grounds that (i) the land of the sale instance relied upon was a transaction for commercial purpose entered into by a foreign country, (ii) the distance and vicinity of the acquired land is completely ignored; (iii) the location of the acquired land and the land of the sale instance being different is not taken into consideration, (iv) the area of the acquired land is 9 times larger than the sale instance of the land, (v) the sale instances of similar and adjoining parcel of land are not taken into consideration at all and (vi) no justification/reasoning for placing reliance upon sole sale instance ignoring the entire evidence produced on record. She has submitted that the claimants have not produced any documentary evidence which would demonstrate the fact that there are similarities between the land acquired and the sale instances which are to be relied upon for the purpose of determination of compensation would be for the proximity to the acquired land.Page 33 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 9.2. It is submitted by Ms.Shah that the sale instances for a small parcel of land cannot be taken into consideration for comparing and determining the value of the land and admittedly the sale instance relied upon by the Reference Court is for the land admeasuring 9140 square meters whereas the acquired land admeasures 83152 square meters. It is pleaded that the settled proposition of law enunciated by the Hon'ble Apex Court in various decisions is to the effect that the valuation of large area of agricultural or undeveloped land cannot be determined on a sale transaction of a smaller piece of developed land and the Hon'ble Apex Court has held in various decisions that the price fetched for a small piece of land cannot be compared with the larger piece of land. It is also her submission that the Reference Court ought to have appreciated the fact that all other parcels of land except survey nos.166/1. 166/2, 222P, 2224/1 were agricultural lands, however, compensation applicable to Non-Agricultural land at Rs.1080/- per square meter was awarded for all the lands and, therefore, to all the lands, the compensation applicable to the Non Agricultural land could not have been awarded. She has submitted that the Reference Court has Page 34 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 awarded an exorbitant amount without verifying the details and documentary evidence and jantri rates of 2011 were produced on record at Exhibit 163 and the amount of compensation awarded is higher than the jantri rates of 2011. 9.3. It is her say that the Respondents claimants have placed reliance upon the valuation reports of the valuer Mr. A.Y. Chhipa which would be of no consequences as the said valuer has not been examined by the claimants in support of their evidence and to prove the valuation reports, mere production of the valuation reports would also be of no consequences as it is a settled principles of law that for the purpose of admissibility of expert evidence under Section 45 of the Evidence Act, firstly, the expert has to be heard and his evidence should be based on reliable principles and cogent reasoning. According to him,the valuation report suggests that the same does not bear any reasoning and findings and moreover, the valuer is not examined in the present case. It is also submitted that as per Section 67 of the Evidence Act, a document is required to be proved in the manner as provided under Sections 45 and 47 of the LA Act or by internal proof afforded by its own contents. Several reports given by valuer Page 35 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Mr. A. Y. Chippa, tentative exhibits are given which would be otherwise not admissible as evidence and valuers report if placed reliance upon, needs to be proved and mere production of valuers report would not be sufficient and the author of the document is required to step into the witness box to prove the said document.
9.4. According to Ms.Shah, learned Government Pleader as far as the documentary evidence in the form of minutes of the meeting dated 01.07.2009 of the District Valuation Committee relied upon by the original claimants is concerned, the same was with respect to the land allotted to the Honourable Judges of the Gujarat High Court. Reliance upon the said minutes of the meeting is erroneous and completely misplaced as the nature and location of the said land was different to the lands acquired. Furthermore, these lands form part of different town planning scheme than the present lands in question i.e. scheme no.28 and 29 which are situated near S. G. Highway, whereas, the acquired lands are situated at different locations and cannot form a basis for any comparison. The claim of the claimants for enhancement of compensation relying on the said documents is solely unjustified and even the claimants Page 36 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 have not examined any witness in support of the documents. It is submitted by Ms.Shah, learned Government Pleader that the index of the lands situated at Moje: Vastrapur, Thaltej, Chandlodiya, Vadaj etc. are thoroughly misplaced as there is no nexus or similarities between these lands and the acquired lands as these lands are situated at a substantial distance from the land in question and nothing is on record to establish that these lands are comparable to the lands in question. The claimants have examined Kaushikbhai Patel in support of their claim at Exhibit 178, however, the said witness does not have any information regarding the acquired land with regard to the nature of land and even he is not aware about the distance between the land purchased by Pacifica Company and the acquired land.
9.5. It is submitted by Ms.Shah that the claimants have examined one of the claimants Narendrabhai Dahyabhai Patel at Exhibit 13, who has categorically stated in his examination- in-chief that the land is surrounded by the residential bungalows and in his cross-examination, he accepted the sale transaction between Tourism Corporation Gujarat Ltd and Pacifica Developer, however, he did not know regarding the Page 37 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 survey numbers or T.P. scheme. She has submitted that the determination of value of the land cannot be done unless necessary relevant comparable sale instance is considered. A large area of land will have to be developed by incurring necessary expenditures for development and, therefore, necessary deductions will have to be made while determining value of land. But in the present case, for such large parcel of land no deductions are made by the reference court while determining compensation.
9.6. Ms.Shah, learned Government Pleader has further submitted that all the parcels of lands were agricultural lands barring four survey numbers and yet, entire compensation is given for NA land. It is a settled law that reductions have to be made with respect to the development charges when the acquired land is a large chunk of land and is undeveloped and appropriate deduction between 20% to 75% is required to be made for the purpose of determination of valuation. 9.7. In support of her submissions, Ms.Shah, learned Government Pleader has relied upon the following decisions.
(1) Brig. Sahib Singh Kalha and others Vs. Amritsar Improvement Trust and others, Page 38 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 (1982) 1 SCC 419;
(2) Special Land Acquisition Officer and another Vs. Sidappa Omanna Tumari and others, 1995 Supp. (2) SCC 168;
(3) Land Acquisition Officer & Sub-Collector, Gadwal Vs. Sreelatha Bhoopal (Smt) and another, (1997) 9 SCC 628;
(4) State of Maharasthra Vs. Damu S/o. Gopinath Shinde and others, (2000) 6 SCC 269;
(5) Kasturi and others Vs. State of Haryana, (2003) 1 SCC 354;
(6) Land Acquisition Officer, Kammarapally Village, Nizamabad District A.P., (2003) 12 SCC 334;
(7) Ramesh Chandra Agrawal Vs. Regency Hospital Limited and others, (2009) 9 SCC 709; (8) Andhra Pradesh Housing Board Vs. K. Mahohar Reddy, (2010) 12 SCC 707;
(9) Kolkata Metropolitan Development Authority Vs. Gobinda Chandra Makal and another, (2011) 9 SCC 207;
(10) Chandrashekar and others Vs. Land Acquisition Officer and another, (2012) 1 SCC 390;
(11) Bhupal Singh and others Vs. State of Haryana, (2015) 5 SCC 801;
9.8. Learned Government Pleader has therefore, urged that the appeals filed by the State Authorities are required to be allowed and First Appeal Nos.3297 of 2017 and 3298 of 2017 Page 39 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 and the Cross-Objections filed by the claimants deserve to be dismissed.
Oral & Written Submissions for and on behalf of Original Claimants:-
10. Mr.Shalin Mehta, learned senior counsel assisted by Mr.J.K. Gandhi and Mr. Pinank Raiyani, learned counsels appearing for the respondents has contended that the land admeasuring 83152 square meters acquired for the purpose of expansion of the High Court complex and the Special Land Acquisition Officer has awarded Rs.1,080/- per square meters under Section 11 of the L.A Act. He has submitted that the claimants claimed compensation to the tune of Rs.45,000/- per square meters by relying upon the sale instance of the year 2007 before the Reference Court and the land admeasuring 9140 square meters of the government owned land situated on S. G. Highway (Northern - Eastern side of the High Court) sold at the rate of Rs.25,021/- per square meters to the U.S. based company vide registered sale deed dated 18.12.2007. 10.1. It is submitted by Mr.Mehta, learned senior counsel that considering the said sale instance, the Reference Court has Page 40 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 held the market value to the tune of Rs.22,080/- per square meters by assigning reason that the land in question is situated 300 meters away from the S. G. Highway. He has submitted that 23% deduction made on account of distance of 300 meters from the Highway is unreasonable and contrary to the scheme of the LA Act. It is submitted that the sale instance relied upon and the land in question both are similarly situated land and hence, the principle of "no deduction" ought to have been applied. Mr.Mehta, learned senior counsel has submitted that 15% increase granted on account of difference of time (13 months) between the sale exemplar and the land in question amounts to Rs.4,065/-, however, the Reference Court has granted Rs.3,753/- counting difference of time to be 12 months.
10.2. Mr.Mehta, learned senior counsel appearing for the respondents has further submitted that the claimants have produced three sale instances and the Reference Court, while relying upon one of the sale instances executed between the Gujarat Tourism Department and Pacifica Developers Limited, enhanced the compensation to Rs.22,080/- per square meters from Rs.1080/- per square meters, which is awarded by the Page 41 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Special Land Acquisition Officer. He has additionally urged that so far as the contention of the appellants with regard to non-acceptance of the evidence by the Reference Court is concerned, the appellants produced four evidence in reference to the proceedings i.e. (i) letter of Town Planner at Exhibit 182, (ii) Valuation Report of the acquired lands by the Town Planning and Valuation Department at Exhibit 183, (iii) Sales Plan at Exhibit 184 and (iv) Statement of details of the lands in question at Exhibit 185.
10.3. According to the learned Senior Counsel the award of the Special Land Acquisition Officer is entirely based on the valuation report of the Town Planning and Valuation Department. It is submitted that in support of the valuation report, the Town Planning Officer has considered 47 sale instances of surrounding lands of the same village and out of those 47 sale instances, by averaging sale consideration of 10 sale instances, the Town Planning Officer has determined the value of the acquired land at Rs.1,080/- per square meter. It is further submitted that it is pertinent to note that neither those sale instances were produced before the Reference Court nor the Town Planning Officer has determined and/or examined Page 42 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 the market value and hence, the award of the Special Land Acquisition Officer based on the documents at Exhibit 182 to 185 cannot be read as an evidence.
10.4. It is also submitted that the award of the Special Land Acquisition Officer is merely an offer and sale transactions referred to in the award cannot be relied upon implicitly if the claimants resist the claim by adducing evidence before the Reference Court and since reference is an original proceedings, the parties are required to establish their claim by adducing independent evidence before the Reference Court. Mr.Mehta, learned senior counsel submitted that the burden to establish the inadequacy of the compensation is on the claimants, however, in the present case, the claimants have discharged their burden by adducing sale deeds and adjoining village and by examining the witness in respect of the sale deed dated 18.12.2007 whereby a parcel of land nearby the land in question was sold at the rate of Rs.25,021/- per square meters and the appellants have failed to produce any independent material to substantiate the amount of compensation determined in the impugned award. He has submitted that the claimants have produced three sale Page 43 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 instances before the Reference Court, out of which, one sale instance is of the same village (Sola), which is taken into consideration for determining the market value of the acquired land.
10.5. It is submitted by Mr.Mehta that at the time of acquisition, the acquired lands were covered under the Town Planning Scheme No.43 and were put under the Residential Zone - 2 as classified under the Gujarat Development Control Regulations (GDCR). Moreover, no agricultural activities were being done on the acquired lands at the relevant time and the land of which the sale instance was placed under Residential Zone - 1. He has submitted that in both the zones, commercial development is permissible. It is also submitted that the evidence on record clearly reveals that both the lands are similarly situated in view of the fact that both the lands were open and flat lands and at the time of acquisition, the acquired lands were connected with all essential amenities such as water, drainage, electricity supply, telephone line and roads and hence, it fall within the purview of the term 'developed land' and no further efforts were required for putting the acquired lands into construction for either Page 44 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 commercial or residential purpose. It is also submitted that the market value must be determined keeping in view the various factors including proximity to the developed area and the road etc. and in case of agricultural land, non-agricultural potentiality is required to be considered while determining the amount of compensation.
10.6. He has submitted that such attempt on the part of the appellants in drawing distinction on the basis of the status of the acquired land in the revenue records is fallacious and what is required to be considered is the actual position of the land. So far as the distance of the acquired lands from Sarkhej
- Gandhinagar Highway is concerned, Mr.Mehta, learned senior counsel has submitted that the acquired lands are 300 meters away from the Highway and for this reason, the Reference Court has applied 23% deduction from the market value of the relied upon sale instances and such unjust deduction for mere proximity of 300 meters from the Highway is under challenge in the appeals and cross objections preferred by the original claimants, when both the lands were similarly situated having similar potentiality. Page 45 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 10.7. Learned counsel has submitted that considering the fact that the acquisition was for expansion of the Gujarat High Court Complex (more particularly, for establishment of the Gujarat State Judicial Academy), the acquired lands were possessed with the special advantage of being situated at calm and peaceful area. With regard to difference in Floor Space Index is concerned, Mr.Mehta, would urge that permissible FSI is 1.8 in Residential Zone - 1, whereas, permissible FSI is 1.2 in Residential Zone - 2 and hence, the difference between both the Zones is 0.6. It is submitted that such difference is of no significance since the GDCR provides for purchase of additional FSI and developer can purchase the additional FSI to the difference of 0.6. He has submitted that with regarding to difference in FSI being determinate factor to differentiate the lands is misconceived since the infrastructure raised on the acquired lands has not utilized the permissible FSI i.e .1.2 and, therefore, question of extra expense towards purchase of additional FSI would not arise. He has submitted that in Village : Sola, permission to construct the tallest residential building within the city (i.e. 31 floors) is granted on the land falling under the Residential Zone - 2 and there are several multi-storied commercial Page 46 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 buildings constructed as on date on the lands of the same village, in nearby vicinity of the acquired lands falling under Residential Zone - 2.
10.8. According to the scheme of the Act, the claimants are entitled to get best compensation for the land since the sale deeds are under valued and can never reflect the actual value of the land. The Counsel submits that in the present case, the acquired lands had enough potential to be utilized for the purpose of which the exemplar land was sold with minimum price or no efforts towards its development since the lands were open and flat and connected with all the essential amenities. He has submitted that so far as the contention of the appellants with regard to value of the relied upon sale exemplar is concerned, the same cannot be relied upon being a rate obtained from ready reckon. It is submitted that at the relevant point of time, in view of the circular dated 09.05.2007, the Stamp Duty Department made necessary changes / amendments for valuation of the property for the purpose of collecting stamp duty on the registration of the sale deeds. In case of the relied upon sale exemplar dated 18.12.2007, in compliance of the said circular, the valuation Page 47 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 certificate of the property was obtained from the Collector, Stamp Duty Department and subsequently, the said circular quashed by this Court vide order dated 03.03.2014 passed in Writ Petition (PIL) No.10 of 2013.
10.9. Learned senior counsel pointed out that the claimants have relied upon the sale consideration entered into between the parties of the sale deed dated 18.12.2007 and not on the valuation certificate of the Collector, Stamp Duty Department and, therefore, such contention raised on the part of the appellants is of no relevance. He has submitted that the claimants have produced three sale exemplars of Village:
Sola, Vastrapur and Bodakdev, out of which, the Reference Court has taken into consideration a sale instance of Village:
Sola whereby 9140 square meters of government owned land situated on S. G. Highway sold at the rate of Rs.25,021/- per square meters to U.S. based company. He has submitted that the potentiality of the acquired land can be taken into consideration at the stage of reference and even at the stage of appeal proceedings before the Higher Courts.
10.10. Even on the date of publication of notification under Page 48 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Section 4, the potentiality of the acquired land as per the version of the Respondents was much higher since it is abutting the relevant and prestigious institutions like High Court of Gujarat, Civil Hospital and Medical College. It is submitted that the Reference Court, while making such deduction, has completely failed to consider the most relevant factor which is required to be considered i.e. future potentiality of the acquired land. He has submitted that the impugned order dated 06.03.2017 passed by the Reference Court requires interference on the aforesaid counts and hence, the amount of compensation granted to the claimants may be enhanced at appropriate rate as deemed fit by this Court in the facts and circumstances of the present case.
10.11. Mr.Mehta, learned senior counsel appearing for the respondents has relied upon the following decisions:
(1) Bhagwathula Samanna and others Vs. Special Tehsildar and others, (1991) 4 SCC 506; (2) State of Punjab and another Vs. Hans Raj (dead) and others, (1994) 5 SCC 734;
(3) Major Pakhar Singh Atwal and others Vs. State of Punjab and others, (1995) Supp. (2) SCC 401;
(4) Thakarsibhai Devjibhai and others Vs. Page 49 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Executive Engineer and others, (2001) 9 SCC 584;
(5) Subh Ram and others Vs. State of Haryana and another, (2010) 1 SCC 444;
(6) Udho Dass Vs. State of Haryana and others, (2010) 12 SCC 51;
(7) Anjani Molu Desai Vs. State of Goa and another, (2010) 13 SCC 710;
(8) Trishla Jain and another Vs. State of Uttaranchal and another, (2011) 6 SCC 47; (9) Gujarat Mineral Development Corporation Vs. Special Land Acquisition Officer, 2018 AIR CC 655;
(10) U. P. Awas Evam Vikash Parishad Vs. Asha Ram (D) Thr. Lrs. and others in Civil Appeal No.337 of 2021 dated 23.03.2021;
(11) Ramrao Shankar Tapase Vs Maharashtra Industrial Development Corporation and others, (2022) 7 SCC 563;
(12) Bharat Sanchar Nigam Limited Vs. M/s.
Nemichand Damodardas and another in Civil Appeal No.3478 of 2022 dated 11.07.2022; 10.12. Mr.Mehta, learned senior counsel has strenuously urged that in view of the aforesaid facts and decisions of the Apex Court, the appeals and cross objections filed by the claimants deserve to be allowed and the amount of compensation requires to be enhanced and the appeals filed by the State Authorities deserve to be dismissed. Page 50 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023
11. On thus hearing the rival submissions of Learned Senior Counsels on both the sides and taking into consideration entire gamut of facts with the evidence, no significant changes would be desirable in the judgement and Award passed by the Reference Court.
Authorities on the subject:-
12. Before adverting to the facts, law on the subject shall need to be discussed at this juncture. In the case of Brig. Sahib Singh Kala (supra), the Apex Court has held and observed in paragraph no.3 as under:-
"3. As to point No. (2), a few facts must be stated. An area of 269 kanals and 9 marlas out of a total area of 118.5 acres had been acquired. The Collector based the award on the 'belting' principle and classified the acquired area into two belts, namely, 'A' and B'. An area measuring 48 kanals and 18 marlas abutting the roads on three sides to a depth of karams was classified as belt 'A' and the remaining 200 kanals 11 marlas as belt 'B'. The land acquired is situate undoubtedly in the vicinity of a developed locality, but is itself undeveloped, although it is bounded by 4 roads. The 45 bungalows and 5 factories which the claimants speak, are, as the High Court observes, situate outside the acquired area. Extensive as it is, it has to be Page 51 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 plotted out into small house sites with amenities. These amenities will consist of roads, drainage, lighting and so on, and roads will require space and laying of roads will mean expenditure. The High Court, while upholding a cut of 33 per cent, of the market value in one case and 20 per cent in the other towards the cost of development, as made by the Tribunal, observes:
For the purpose of converting the big plot into small plots, it would be necessary to provide roads, parks etc. The benefit of such roads and parks etc. would accrue to the plot holders without payment of any extra price. In other words, the price of the land under roads and parks etc. would be included in the price of the smaller plots made out of the big one. It is in this background that while assessing the market price of the acquired area measuring 269 kanals 9 marlas, the Tribunal applied the 20 per cent, cut on the price otherwise assessed....
It is a well settled principle of valuation that where there is a large 45 area of undeveloped land under acquisition, provision has to be made for providing the minimum amenities of town life such as water connections, well laid-out roads, drainage facility, electric connections etc. The process necessarily involves deduction of the cost of factors required to bring the undeveloped lands on a par with the developed lands. An extent of 20 per cent of the total land acquired is normally taken as a reasonable deduction for the space required for roads. This is apart from the cost of laying roads themselves and the cost of providing other amenities like electricity, water, underground drainage etc. In Tribeni Devi and Ors. v. Collector of Ranchi the Court allowed a deduction of 33-1/3 per cent, towards the cost of development. The cost of development may range from 20 to 33 per cent. depending on the nature of the land, its Page 52 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 situation and the stage of development etc. The Tribunal had before it material on which it directed a cut of 33 per cent, of the market value in one and 20 per cent in the other. It cannot be said that the aforesaid deductions were arbitrary or unreasonable having regard to the fact that the land acquired is an undeveloped area and the award of the Tribunal is based on the 'belting' principle."
12.1. In the case of Sidappa Omanna Tumari (supra), the Apex Court was considering the question of importance of report of expert and substantiation of the same with cogent evidence at the time of seeking additional compensation has held and observed in paragraphs no.13, 14, 15 and 17 as under:-
"13. Where the court has to determine the market value of large extents cf acquired agricultural lands, it may not be desirable to be guided on the price fetched by sale of small extents of agricultural lands as the possibility of genuine agriculturists buying such small extents for their cultivation purposes is, rather remote and it may not also be desirable to determine the market value of the acquired agricultural lands on the basis of value fetched by sales of small extents agricultural land even if they had been purchased for building purposes, for that would involve the consideration of too many imponderables. However, if sale deed or agreement to sell relating to the small extent of land on the basis of which the market value of the large extent of the agricultural land has to be determined is a portion of the acquired Page 53 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 agricultural land itself or other land in its close proximity, it may be made the basis for determining the market value of the acquired large extent of agricultural land out has to be done when there is satisfactory evidence of the absence of sales or agreements to sell of bigger extents of land pertaining to the acquired land or other lands in the vicinity of the acquired land. Even then, the price fetched or to be fetched by such small extents of land has to be made the basis for determining the market value of the larger extents of acquired agricultural lands, all material factors which would reduce the value of the larger extents of acquired land as on the date it was notified for acquisition must necessary be taken into account, for it is Well-known as. is held by this Court in the Collector of Lakhimpur v. Bhuban Chandra Dutta, [1972] 4 SCC 236. that when a large area of land under acquisition is the subject matter, it cannot fetch the price at the rate at which smaller plot of plots are sold. One aspect, which however, should weigh is that determination of the value of large extents of acquired lands on the basis of the prices fetched by smaller plots must be a matter of last resort and should be adopted when there is no possibility of determining the market value of acquired lands on the basis of comparable transactions of larger extents.
14. Therefore, where a sale deed or an agreement to sell relating to a small extent of land is produced by the claimant, in the enquiry held for determination of compensation payable for his large extent of land, the Court is not always bound to determine the market price of such large extent of acquired land on the basis of the price fetched or to be fetched by small extent of land covered by such sale deed or agreement to sell.
15. It has become a matter of common Page 54 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 occurrence with the claimants who seek enhanced compensation for their acquired lands from court to produce the reports of valuation of their lands in court purported to have been prepared by the experts. No doubt, courts can act on such expert evidence in determining the market value of the acquired lands, but the court having regard to the fact that experts will have prepared the valuation reports produced in the court and will depose in support of such reports, at the instance of the claimants, must with care and caution examine such reports and evidence given in support thereof. Whenever valuation report made by an expert is produced in court, the opinion on the value of the acquired land given by such expert can be of no assistance in determining the market value of such land, unless such opinion is formed on relevant factual data or material, which is also produced before the court and proved to be genuine and reliable, as any other evidence. Besides, if the method of valuation of acquired land adopted by the expert in his report is found to be not in consonance with the recognised methods of valuation of similar lands, then also, the opinion expressed in his report and his evidence, can be of no real assistance to the court in determining the market value of the acquired land. Since the exercise which will have been done by the expert in arriving at the market value of the land in his report on the basis of factual data bearing on such valuation, will be similar to that to be undertaken by the court in determining me market value of the acquired land, it can no doubt receive assistance from such report, if it is rightly done and the data on which the report is based is placed before the court and its authenticity is established.
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 Page 55 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 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." 12.2. In the case of Sreelatha Bhoopal (Smt) (supra), the Apex Court while considering small piece of land with the larger piece of land has held and observed thus:-
"4. The High Court has relied upon Ex. A-4 the sale wherein related to a small piece of land, and accordingly confirmed the market value @ Rs. 20.00 per sq. yd. It is now well settled legal position that small pieces of land cannot offer the same market value when a large tract of land is purchased in an open market by a willing and prudent purchaser. It is settled legal position that the Court has to put itself in the armchair of a prudent purchaser and put the question to itself whether the land in the given circumstances, would fetch the same market value as is likely to be determined by the Court when small piece of land would be offered for sale. Unfortunately, the High Court has not adopted that principle; it has merely proceeded to rely upon sale deed relating to a small piece of land. We have gone through the award of the Collector. The Collector referred to various sale deeds and ultimately he relied upon a sale transaction and held that the lands in the sale deed at Sl. No. 120, pertaining to survey No. 854, which fetched the rate of Rs. 4,519-77 as on the date of the sale, namely, 27.12.1978 was comparable one. The Land Acquisition Officer noted that the lands therein were converted into non-agricultural lands and the lands in question still remained to be agricultural lands and were Page 56 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 adjacent to Gadwal Town. Under these circumstances, he awarded the market value at the rate of Rs. 8,000.00 per acre. It is settled legal position that the burden is on the claimant to prove by adducing acceptable evidence for higher compensation. Having rejected Ex. A-4 relied on by the High Court, though the award of Land Acquisition Officer is not evidence stricto sensu with a view to do substantial justice. We looked into it and considered the material collected therein. Having regard to the state of evidence and large extent of the land in question as also and the facts, we think that the appropriate market value would be Rs. 20,000.00 per acre and would be just and reasonable compensation.
5. The appeal is accordingly allowed. The order of the reference Court as confirmed by the High Court is set aside. Instead, the award shall be substituted by Rs. 20,000.00 per acre with usual solatium at the rate of 30 Per Cent and interest on enhanced compensation at the rate of 9 Per Cent per annum from the date of taking possession to the date of payment of such enhanced compensation and at the rate of 15 Per Cent thereafter till deposit of enhanced compensation into the Court."
12.3. In the case of Damu S/o. Gopinath Shinde (supra), the Apex Court has highlighted importance of examining the expert as a witness and observed in paragraph no.40 as under:-
"40. Exh. 64 is only the opinion of the Asstt. State Examiner of Documents. From that description alone, it cannot be gathered whether his office would fall within the purview of sec.Page 57 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 293 of the Code. Hence, without examining the expert as a witness in Court, no reliance can be placed on Exh. 64 alone."
12.4. In the case of Kasturi (supra), the Apex Court compared, for the purpose of evaluating compensation, large tract of area vis-a-vis small parcel of land to hold and observe in paragraphs no.7, 16 and 17 as under:-
"7. It is not debated that sale transaction covered by Exbt. P-7 relates to a small plot and the land in question acquired is about 84 acre. This land comprising of large area is not developed although it has potential value for residential and commercial purposes. In order to develop this land, roads were to be laid, provisions for drainage was to be made and certain area was to be earmarked for other civic amenities. Thus, after leaving the area in the land required for the purposes mentioned above, plots were to be made for residential and commercial purposes by incurring expenditure for other developmental works, such as providing electricity, water, etc. The acquired land is not small plot located in such a way that no other development was required at all and it could be utilized as it is as a developed building site. It is well-settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3 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 roads and other civic amenities to develop the land so as to make the plots for the residential or Page 58 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 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; may be 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 incurred in developing the area also varies. A claimant who claims that his land is fully developed and nothing more is required to be done for developmental purposes, must show on the basis of evidence that it is such a land and it is so located. In the absence of such evidence, merely saying that area adjoining his land is developed area, is not enough particularly when the extent of the acquired land is large and even if a small portion of the land is abutting the main road in the developed area, does not give the land character of a developed area In 84 acres of land acquired even if one portion on one side abuts the main road, the remaining large area where planned development is required, needs laying of internal roads, drainage, sewer, water, electricity lines, providing civic amenities etc. However, in cases of some land where there are certain advantages by virtue of the developed area around, may help in reducing the percentage of cut to be applied, as the developmental charges required may be less on that account. 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, may be in some cases it is more than 1/3 and in some cases less than 1/3. 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 Page 59 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 when vast tracts are acquired, as in this case, for development purpose.
16. In that case deduction was not given on the ground that even in the vast area there may be land, which is fully developed having all amenities and situated in an advantageous position; if smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communication, etc., then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
17. In the present case the situation is entirely different. The area acquired is not a small area; it was not developed; may be it had some advantages; a small portion of the large tract was abutting the main road; it was also not the case that any smaller area within the large tract of land acquired was fully developed having all facilities as in the case of Bhagwathula Samanna (supra). The appellants herein did not establish that the entire area of 84 acres of land acquired was fully developed having all the facilities such as roads, drains, sewers, water, electricity lines and civic amenities. In order to convert the land into plots for the purpose of construction of residential and commercial buildings certain area was to be earmarked for the above mentioned purposes in accordance with the law governing in the matter of creating layouts in addition to incurring of expenditure for the development area. Hence the claim of the appellants that there should have been no deduction out of the compensation amount determined for the entire area acquired is unsustainable. May be the acquired land with potentiality for construction of residential and commercial buildings had some advantages, which aspect is taken note of by the High Court in giving cut of only 20% as against 1/3 normal Page 60 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 deduction.
12.5. In the case of Nookala Rajamallu (supra), the Apex Court also dealt with the very aspect to hold and observe in paragraphs no.6, 7 and 8 thus:-
"6. Where large area is the subject matter of acquisition, rate at which small plots are sold cannot be said to be a safe criteria. Reference in this context may be made to few decisions of this Court in The Collector of Lakhimpur v. Bhuban Chandra Dutta (AIR 1971 SC 2015), Prithvi Raj Taneja (dead) by Lrs. v. The State of Madhya Pradesh & Am. (AIR 1977 SC 1560) and Smt. Kausalya Devi Bogra and Ors. etc. V/s. Land Acquisition Officer, Aurangabad & Anr. (AIR 1984 SC 392).
7. It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating Court to make comparison of the prices paid for small plots of lands. However, in such cases necessary deductions/ adjustments have to be made while determining the prices.
8. In the case of Suresh Kumar V/s. Town Improvement Trust, Bhopal (AIR 1989 SC 1222) in a case under the Madhya Pradesh Town Improvement Trust Act, 1960 this Court held that the rates paid for small parcels of land do not provide a useful guide for determining the market value of the land acquired. While determining the market value of the land acquired it has to be correctly determined and paid so that there is neither unjust enrichment Page 61 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 on the part of the acquirer nor undue deprivation on the part of the owner. It is an accepted principle as laid down in the case of Vyricherla Narayana Gajapatiraju V/s. Revenue Divisional Officer, Vizagapatam (AIR 1939 PC
98) that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to receive from the willing purchaser. While considering the market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded.
Neither must be considered as acting under any compulsion. The value of the land is not to be estimated as its value to the purchaser. But similarly this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion man always be taken into consideration for what it is worth. Section 23 of the Act enumerates the matters to be considered in determining compensation. The first criteria to be taken into consideration is the market value of the land on the date of the publication of the notification u/s. 4(1). Similarly, Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining the compensation. A safeguard is provided in Section 25 of the Act that the amount of compensation to be awarded by the Court shall not be less than the amount awarded by the Collector u/s. 11. Value of the potentiality is to be determined on such materials as are available and without indulgence in any fits of imagination.
Impracticability of determining the potential value is writ large in almost all cases. There is bound to be some amount of guess work involved while determining the potentiality. 12.6. Importance of expert's evidence and its evaluations has Page 62 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 been discussed in the case of Ramesh Chandra Agarwal (supra) where the Apex Court held and observed in the following manner :-
"16. The law of evidence is designed to ensure that the Court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the Court's knowledge. Thus, cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:-
(i) that the expert must be within a recognized field of expertise
(ii) that the evidence must be based on reliable principles, and
(iii) that the expert must be qualified in that discipline.
(See Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 Edn., Cambrdige University Press, p. 178.)
20. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, Page 63 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly V/s. Dr. Sukumar Mukherjee, SCC p.249, para 34).
12.7. Requirement of percentage of deductions for the development is at length considered in the case of Andhra Pradesh Housing Board (supra) by the Apex Court where it held as under:
"21. In Lal Chand V/s. Union of India & Anr., reported at [JT 2009 (11) SC 490 : 2009 (15) SCC 769], this Court while determining the rate at which development charges may be deducted, held : (SCC pp. 779-80, paras 13-14 & 20-22)
"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 lay out 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....
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20. Therefore the deduction for the 'development factor' to be made with reference to the price of a small plot in a developed lay out, to arrive at the cost of undeveloped land, will be for more than the deduction with reference to the price of a small plot in an unauthorized private lay out 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.
21. Even among the layouts formed by DDA, the percentage of land utilized for roads, civic amenities, parks and play grounds may vary with reference to the nature of layout -whether it is residential, residential- cum-commercial or industrial; and even among residential layouts, the percentage will differ having regard to the size of the plots, width of the roads, extent of community facilities, parks and play grounds provided.
22. Some of the layouts formed by statutory Development Authorities may have large areas earmarked for water/sewage treatment plants, water tanks, electrical sub-stations etc. in addition to the usual areas earmarked for roads, drains, parks, playgrounds and community/ civic amenities. The purpose of the aforesaid examples is only to show that the 'deduction for development' factor is a variable percentage and the range of percentage itself being very wide from 20% to 75%.
22. It is, therefore, implicit from the aforesaid discussion of case law and precedent that whatever could be deducted towards development charges for developing a particular plot of land could range between 20 per cent to 75 per cent. This is a very wide bracket, no doubt, but an appropriate deduction befitting Page 65 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 the situation, location and the nature of the land justifying the deduction made could be arrived at upon estimation of all the aforesaid factors. If the land is already developed and could be used as a commercial/residential plot, what should be deducted would be in the lower side whereas if development is to be made, like filling up of the land, providing of roads, sewage and other civic amenities, etc., the range of the deduction could be higher.
12.8. In the case of Kolkata Metropolitan Development Authority (supra), the Apex Court has held and observed in paragraphs no.32 to 36 as under:-
"32. Sub-section (1) of Section 23 provides the compensation to be awarded shall be determined by the Reference Court, based upon the market value of the acquired land at the time of publication of the notification under section 4 sub-section (1). The first respondent contends that the `date of publication of notification under section 4(1)' is statutorily defined in section 4(1) (that is the last of the dates, out of the dates of publication of the notification in the official gazette, publication of the notification in two daily newspapers circulating in that locality of which at least one shall be in regional language, and public notice of the substance of such notification being given at convenient places in the locality), and therefore the said words refer to 16.11.2000 as the date of publication of notification under section 4(1) of the LA Act.
33. Section 6 was amended in 1984 providing that no declaration under section 6 in respect of any land covered by a notification under section 4(1) shall be made after the expiry of one year Page 66 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 from the date of publication of the notification under section 4(1). In that context, to avoid any confusion as to what would be the date of publication of the notification under section 4(1), section 4(1) was also amended to clarify the position and it was provided that "the last of the dates of such publication and giving of such public notice being herein referred to as the date of publication of the notification". But the words `publication of the notification under section 4(1)' occurring in the first clause of section 23(1) have different meaning and connotation from the use of the said words in sections 4(1) and 6 of the LA Act. Prior to the 1984 amendment of section 4, the words "publication of notification under section 4(1)"
in section 23(1) referred to the date of publication of the notification in the official Gazette. Even after the amendment of section 4(1), the said words in section 23(1) continue to have the same earlier meaning. We may briefly indicate the reasons for our said conclusion.
34. One of the principles in regard to determination of 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. 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 Page 67 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 contemplated on account of the acquisition itself.
35. If the words `publication of the notification' in section 23(1) (clause firstly) should be construed as referring to the last of the dates of publication and public notice, and the date of public notice in the locality is to be considered as the date of publication, the landowners can legitimately claim that the sales which took place till the date of public notice should be taken into account for the purpose of determination of compensation, leading to disastrous results. Let us give two illustrations :
Illustration A : The market value of the acquired land on 13.9.2000 is Rs.1,00,000 per acre. A notification under section 4(1) is published in the gazette on 13.9.2000 and in two newspapers on 14.9.2000. But the public notice in the locality is given only two months later on 16.11.2000. As the land owners in the area come to know about the proposed acquisition and consequential expectations of development in the area, developers and speculators enter the arena and start buying neighbouring lands leading to steep increase in prices.
Consequently several sales takes place in October 2000 at rates ranging from Rs.1.5 lakhs to Rs.2 lakhs per acre. If 16.11.2000 should be taken as the date of publication of the notification under section 4(1), the land owners can legitimately contend that the sale deeds executed in October 2000, being prior to the `date of publication of the preliminary notification' should be taken note of for the purpose of determining the compensation. That would result in compensation being determined between Rs.1,50,000 to Rs.2 lakhs per acre even though the market rate as on 13.9.2000 which is the date of publication of the notification was only Rs.1,00,000.
Page 68 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Illustration B : When large tracts of lands are acquired and the preliminary notification dated 13.9.2000 is published in the Gazette on 13.9.2000 and in the newspapers on 14.9.2000, but public notice of the substance is delayed by more than two months and is given on 16.11.2000, there will be ample time for unscrupulous land owners of acquired lands to create evidence of higher market value by managing nominal sale/s in regard to some neighbouring land which is not the subject of acquisition at a price of Rs.2,00,000/- as against the market price of Rs.1,00,000/- and thereby cause a huge loss to the state.
36. The same words used in different parts of a statute should normally bear the same meaning. But depending upon the context, the same words used in different places of a statue may also have different meaning. [See: Justice G.P. Singh's Principles of Statutory Interpretation - 12th Edition - Pages 356-358]. The use of the words `publication of the notification' in sections 4(1) and 6 on the one hand and in section 23(1) on the other, in the LA Act, is a classic example, where the same words have different meanings in different provisions of the same enactment. The words `publication of the notification under section 4 sub-section (1), are used in section 23(1) for fixing the relevant date for determination of market value. The words "the last of the date of such publication and giving of such public notice being hereinafter referred to as the publication of the date of notification" in section 4(1) and the words `one year from the date of the publication of the notification" in the first proviso to section 6, refer to the special deeming definition of the said words, for determining the period of one year for issuing the declaration under section 6, which is counted from the date of `publication of the notification'. Therefore the context in which the words are used in sections 4(1) and 6, Page 69 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 and the context in which the same words are used in section 23(1) are completely different. In section 23(1), the words "the date of publication of the notification under section 4(1)" would refer to the date of publication of the notification in the gazette. Therefore, '13.9.2000' will be the relevant date for the purpose of determination of compensation and not 16.11.2000.
12.9. In the case of Chandrashekar and others (supra), the Apex Court has held and observed in paragraphs No.16, 18 and 21 as under:-
"16. From the afore-stated deliberations, the following inferences emerge:
Firstly, that the acquired land is a large chunk of land measuring 144 acres.
Secondly, the acquired land owned by the appellants was un-irrigated agricultural land, surrounded on all sides by similar lands, and as such, unquestionably undeveloped land.
Thirdly, the exemplar sale deed dated 30.12.1983, was in respect of a small piece of land measuring 2400 square feet (40' x 60' = 2400 square feet).
Fourthly, the exemplar sale deed dated 30.12.1983, constituted sale of a developed site. And fifthly, the exemplar sale deed dated 30.12.1983, was executed 1 year 7 months and 17 days, after the publication of the preliminary notification on 13.5.1982.
18. In the process of consideration hereinafter, Page 70 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 we have referred to all the judgments relied upon by the learned counsel for the appellants, as well as, some recent judgments on the issue concerned:
(i) In Brigadier Sahib Singh Kalha & Ors. V/s.
Amritsar Improvement Trust & Ors., (1982) 1 SCC 419, this Court opined, that where a large area of undeveloped land is acquired, provision has to be made for providing minimum amenities of town-life. Accordingly it was held, that a deduction of 20 percent of the total acquired land should be made for land over which infrastructure has to be raised (space for roads etc.). Apart from the aforesaid, it was also held, that the cost of raising infrastructure itself (like roads, electricity, water, underground drainage, etc.) need also to be taken into consideration. To cover the cost component, for raising infrastructure, the Court held, that the deduction to be applied would range between 20 percent to 33 percent. Commutatively viewed, it was held, that deductions would range between 40 and 53 percent.
(ii) Noticing the determination rendered by this Court in Brigadier Sahib Singh Kalha's case (supra), this Court in Administrator General of West Bengal V/s. Collector, Varanasi, (1988) 2 SCC 150, upheld deduction of 40 percent (from the acquired land) as had been applied by the High Court.
(iii) In Chimanlal Hargovinddas V/s. Special Land Acquisition Officer, Poona & Anr., (1988) 3 SCC 751, while referring to the factors which ought to be taken into consideration while determining the market value of acquired land, it was observed, that a smaller plot was within the reach of many, whereas for a larger block of land there was implicit disadvantages. As a matter of illustration it was mentioned, that a large block of land would first have to be Page 71 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 developed by preparing its lay out plan. Thereafter, it would require carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers (during which the invested money would remain blocked).
Likewise, it was pointed out, that there would be other known hazards of an entrepreneur. Based on the aforesaid likely disadvantages it was held, that these factors could be discounted by making deductions by way of allowance at an appropriate rate, ranging from 20 percent to 50 percent. These deductions, according to the Court, would account for land required to be set apart for developmental activities. It was also sought to be clarified, that the applied deduction would depend on, whether the acquired land was rural or urban, whether building activity was picking up or was stagnant, whether the waiting period during which the capital would remain locked would be short or long; and other like entrepreneurial hazards.
(iv) In Land Acquisition Officer Revenue Divisional Officer, Chottor V/s. L. Kamalamma (Smt.) Dead by LRs. & Ors., (1998) 2 SCC 385, this Court arrived at the conclusion, that a deduction of 40 percent as developmental cost from the market value determined by the Reference Court would be just and proper for ascertaining the compensation payable to the landowner.
(v) In Kasturi and others V/s. State of Haryana, (2003) 1 SCC 354, this court opined, that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation should be deducted, depending upon the location, extent of expenditure involved for development, the area required for roads and other civic amenities etc. It was also opined, that appropriate deductions could be Page 72 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 made for making plots for residential and commercial purposes. It was sought to be explained, that the acquired land may be plain or uneven, the soil of the acquired land may be soft and hard, the acquired land may have a hillock or may be low lying or may have deep ditches. Accordingly, it was pointed out, that expenses involved for development would vary keeping in mind the facts and circumstances of each case. In Kasturi's case (supra) it was held, that normal deductions on account of development would be 1/3rd of the amount of compensation. It was however clarified that in some cases the deduction could be more than 1/3rd and in other cases even less than 1/3rd.
(vi) Following the decision rendered by this Court in Brigadier Sahib Singh Kalha's case, this Court in Land Acquisition Officer, Kammarapally Village, Nizamabad District, A.P. V/s. Nookala Rajamallu & Ors., (2003) 12 SCC 334, applied a deduction of 53 percent, to determine the compensation payable to the landowners.
(vii) In V. Hanumantha Reddy (Dead) by LRs. V/s. Land Acquisition Officer & Mandal R. Officer, (2003) 12 SCC 642, this Court examined the propriety of compensation determined as payable to the land loser by the High Court. The Reference Court had determined the market value of developed land at Rs.78 per sq. yard. The Reference Court then applied a deduction of 1/4th to arrive at Rs.58 per sq. yard as the compensation payable. The High Court however concluded, that compensation at Rs.30 per sq. yard would be appropriate (this would mean a deduction of approximately 37 percent, as against market value of developed land at Rs.78 per sq. yard). This Court having made a reference to Kasturi's case (supra) did not find any infirmity in the order passed by the High Court. In other words, deduction of 37 percent was approved by this Court.
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(viii) In para 21 of the judgment in Viluben Jhalejar Contractor (Dead) by LRs. V/s. State of Gujarat, (2005) 4 SCC 789, it was held that for development, i.e., preparation of lay out plans, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers, and on account of other hazards of an entrepreneur, the deduction could range between 20 percent and 50 percent of the total market price of the exemplar land.
(ix) In Atma Singh (Dead) through LRs & Ors. V/ s. State of Haryana and Anr., (2008) 2 SCC 568, this Court after making a reference to a number of decisions on the point, and after taking into consideration the fact that the exemplar sale transaction was of a smaller piece of land concluded, that deductions of 20 percent onwards, depending on the facts and circumstances of each case could be made.
(x) In Lal Chand V/s. Union of India & Anr., (2009) 15 SCC 769, it was held that to determine the market value of a large tract of undeveloped agricultural land (with potential for development), with reference to sale price of small developed plot(s), deductions varying between 20 percent to 75 percent of the price of such developed plot(s) could be made.
(xi) In Subh Ram & Ors. V/s. State of Haryana & Anr., (2010) 1 SCC 444, this Court opined, that in cases where the valuation of a large area of agricultural or undeveloped land was to be determined on the basis of the sale price of a small developed plot, standard deductions ought to be 1/3rd towards infrastructure space (areas to be left out for roads etc.) and 1/3rd towards infrastructural developmental costs (costs for raising infrastructure), i.e., in all 2/3rd (or 67 percent).
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(xii) In Andhra Pradesh Housing Board V/s. K. Manohar Reddy & Ors., (2010) 12 SCC 707, having examined the existing case law on the point it was concluded, that deductions on account of development could vary between 20 percent to 75 percent. In the peculiar facts of the case a deduction of 1/3rd towards development charges was made from the awarded amount to determine the compensation payable.
(xiii) In Special Land Acquisition Officer & Anr. V/s. M.K. Rafiq Sahib, (2011) 7 SCC 714, this Court after having concluded, that the land which was subject matter of acquisition was not agricultural land for all practical purposes and no agricultural activities could be carried out on it, concluded that in order to determine fair compensation, based on a sale transaction of a small piece of developed land (though the acquired land was a large chunk), the deduction made by the High Court at 50 percent, ought to be increased to 60 percent.
21. It is essential to earmark appropriate deductions, out of the market value of an exemplar land, for each of the two components referred to above. This would be the first step towards balancing the differential factors. This would pave the way for determining the market value of the undeveloped acquired land on the basis of market value of the developed exemplar land.
12.10. How the fair market value of acquired land is to be determined is decided in case of in the case of Bhupal Singh and others (supra) by the Apex Court:-
"18. Law on the question as to how the Court is Page 75 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 required to determine the fair market value of the acquired land is fairly well settled by several decisions of this Court and remains no more res integra. This Court has, inter alia, held that when the acquired land is a large chunk of undeveloped land having potential and was acquired for residential purpose then while determining the fair market value of the lands on the date of acquisition, the appropriate deductions are also required to be made.
19. It is apposite to take note of some of the decisions of this Court on the issue relevant for the disposal of these appeals:
19.1In Brig. Sahib Singh Kalha & Ors. v.
Amritsar Improvement Trust & Ors., (1982) 1 SCC 419, this Court opined that where a large area of undeveloped land is acquired, provision has to be made for providing minimum amenities of town life. Accordingly, it was held that a deduction of 20% of the total acquired land should be made for land over which infrastructure has to be raised (space for roads, etc.). Apart from the aforesaid, it was also held that the cost of raising infrastructure itself (like roads, electricity, water, underground drainage, etc.) needs also to be taken into consideration. To cover the cost component for raising infrastructure, the Court held that the deduction to be applied would range between 20% to 33%. Commutatively viewed, it was held, that deductions would range between 40% and 53%. 19.2In Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona & Anr. (1988) 3 SCC 751 while referring to the factors which ought to be taken into consideration while determining the market value of the acquired land, it was observed that a smaller plot was within the reach of many whereas for a larger block of land there were implicit disadvantages. As a matter of illustration, it was mentioned that a large Page 76 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 block of land would first have to be developed by preparing its layout plan. Thereafter, it would require carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers (during which the invested money would remain blocked). Likewise, it was pointed out that there would be other known hazards of an [pic]entrepreneur. Based on the aforesaid likely disadvantages it was held that these factors could be discounted by making deductions by way of allowance at an appropriate rate ranging from 20% to 50%. These deductions, according to the Court, would account for land required to be set apart for developmental activities. It was also sought to be clarified that the applied deduction would depend on, whether the acquired land was rural or urban, whether building activity was picking up or was stagnant, whether the waiting period during which the capital would remain locked would be short or long; and other like entrepreneurial hazards.
19.3In Kasturi & Ors. v. State of Haryana, (2003) 1 SCC 354, this Court opined that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation should be deducted depending upon the location, extent of expenditure involved for development, the area required for roads and other civic amenities, etc. It was also opined that appropriate deductions could be made for making plots for residential and commercial purposes. It was sought to be explained that the acquired land may be plain or uneven, the soil of the acquired land may be soft or hard, the acquired land may have a hillock or may be low-lying or may have deep ditches. Accordingly, it was pointed out that expenses involved for development would vary keeping in mind the facts and circumstances of each case. In Kasturi case, it was held that normal Page 77 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 deductions on account of development would be 1/3rd of the amount of compensation. It was, however, clarified that in some cases the deduction could be more than 1/3rd in other cases even less than 1/3rd.
19.4In Lal Chand v. Union of India & Anr., (2009) 15 SCC 769, it was held that to determine the market value of a large tract of undeveloped agricultural land (with potential for development), with reference to sale price of small developed plot(s), deductions varying between 20% to 75% of the price of such developed plot(s) could be made.
19.5In A.P. Housing Board v. K. Manohar Reddy & Ors., (2010) 12 SCC 707, having examined the existing case law on the point it was concluded that deductions on account of development could vary between 20% to 75%. In the peculiar facts of the case, a deduction of 1/3rd towards development charges was made from the awarded amount to determine the compensation payable.
19.6In Special Land Acquisition Officer & Anr. v. M.K. Rafiq Saheb, (2011) 7 SCC 714, this Court after having concluded that the land which was the subject-matter of acquisition was not agricultural land for all practical purposes and no agricultural activities could be carried out on it, concluded that in order [pic]to determine fair compensation, based on a sale transaction of a small piece of developed land (though the acquired land was a large chunk), the deduction made by the High Court at 50%, ought to be increased to 60%.
20. After taking note of the aforesaid cases and placing reliance upon the principles laid down therein, this Court in Chandrashekar and Others, (supra) observed as under: (SCC pp.399- 400, paras 20-22) Page 78 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 "20. It is essential to earmark appropriate deductions out of the market value of an exemplar land, for each of the two components referred to above. This would be the first step towards balancing the differential factors. This would pave the way for determining the market value of the undeveloped acquired land on the basis of market value of the developed exemplar land.
21. As far back as in 1982, this Court in Brig. Sahib Singh Kalha case held, that the permissible deduction could be up to 53%. This deduction was divided by the Court into two components. For the "first component" referred to in the foregoing paragraph, it was held that a deduction of 20% should be made. For the "second component", it was held that the deduction could range between 20% to 33%. It is therefore apparent that a deduction of up to 53% was the norm laid down by the Court as far back as in 1982. The aforesaid norm remained unchanged for a long duration of time, even though, keeping in mind the peculiar facts and circumstances emerging from case to case, different deductions were applied by this Court to balance the differential factors between the exemplar land and the acquired land. Recently however, this Court has approved a higher component of deduction.
22. In 2009 in Lal Chand case and in 2010 in A.P. Housing Board case it has been held that while applying the sale consideration of a small piece of developed land, to determine the market value of a large tract of undeveloped acquired land, deductions between 20% to 75% could be made. But in 2009 in Subh Ram case, this Court restricted deductions on account of the "first component" of development, as also, on account of the "second component" of development to 33% each. The aforesaid Page 79 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 deductions would roughly amount to 67% of the component of the sale consideration of the exemplar sale transaction(s)."
21. Keeping the aforesaid principles in mind, we have perused the evidence in these cases. It is not in dispute that the acquisition of land in question was made in the year 1977 and it was for a large chunk of undeveloped agriculture land. It is also not in dispute that it was for construction of "residential purpose". It is further not in dispute that the appellants did not file any sale deed in evidence in support of their case to prove the fair market value of the acquired land. All that they adduced was an oral evidence of some witnesses to prove the potentiality of the lands by showing its location, proximity to the main road which was passing in the area and named some industries and hospitals operating in the nearby areas of the acquired lands etc."
12.11. That very aspect of market value in the case of Bhagwathula Samanna (supra) is considered by the Apex Court to hold and observe thus:-
"11. The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land. In applying the principle it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition, the only relevant factor. Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position. lf smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications etc. Page 80 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
13. The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land. If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted. With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other amenities and is adjacent to a developed colony and in such circumstances it is possible to utilise the entire area in question as house sites. In respect of the land acquired for the road, the same advantages are available and it did not require any further development. We are, therefore, of the view that the High Court has erred in applying the principle of deduction; and reducing the fair market value of land from Rs. 10 per sq. yard to Rs. 6.50 paise per sq. yard. In our opinion, no such deduction is justified in the facts and circumstances of these cases. The appellants, therefore, succeed.
12.12. The decision of Major Pakhar Singh Atwal (supra),by the Apex Court also covers the very issue of fair market price and the manner of its determination while acquiring the land thus:-
Page 81 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 "5. If we Have regard to the above rival contentions, the facts and circumstances of this case do not permit our interference with the order under appeal. It is now settled law that the award is an offer and whatever amount was determined by the Collector is an offer and binds the Improvement Trust. However, the Collector also is required to collect the relevant material and award compensation on the basis of settled principles of determination of the market value of an acquired land. The Improvement Trust, therefore, cannot go behind the award made by the Collector. Reference is not an appeal. It is an original proceeding. It is for the claimants to seek the determination of proper compensation by producing sale deeds and examining the venders or the vendees as to passing of consideration among them, the nearness of the lands sold to the acquired lands, similarly of the lands sold and acquired and also by adduction of other relevant and acceptable evidence. In this case, for the Court under Sec. 18 of the Act the Tribunal is constituted.
Therefore, if the claimants intend to seek higher completion to the acquired land. the burden is on them to establish by proof that the compensation granted by the Land Acquisition Officer is inadequate and they arc entitled to higher compensation. could be established only by adduction of evidence of the comparable sale transactions of the land acquired or the lands in the neighbourhood possessed of similar potentiality or advantages. Unfortunately, in this case, no witness had been examined in proof of the prevailing market value of the lands or in the neighbourhood, Only mutation entries were relied upon. They are inadmissible evidence and cannot be relied upon. No doubt, in the award itself, the Land Acquisition Officer referred to the sale transactions. Since the Land Acquisition Officer is an authority under the Act, he collected the evidence to determine the compensation as an offer. Though that award Page 82 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 may be a material evidence to be looked into, but the sale transactions referred to therein cannot be relied upon implicitly, if the party seeking enhancement resists the claim by adducing evidence independently before the Court or the Tribunal. In this case, since no steps were taken to place the sale transaction referred in the award, they cannot be evidence. So they can neither be relied upon nor can be looked into as evidence."
12.13. Difference in determination of valuation of larger piece of land vis-a-vis smaller one is examined in Thakarsibhai Devjibhai (supra), by the Apex Court and it held and observed in paragraphs no.8 and 12 as under:-
"8. Heard learned counsel for the parties, as against reduction, Learned counsel for the claimants strongly relied on Ex. 16 as the land covered under it is of the same village, similarly situated and the acquisition of which was prior than the present acquisition, hence there is no justification for the High Court to reduce the quantum of compensation from Rs. 58/- per sq. mtr. to Resection 48/-per sq. mtr. The submission is, this reduction by 25% is also not sustainable as High Court reduced it by treating the present acquisition being for a large chunk of land in contrast to the land which is covered under Ex. 16. The submission is, it is not large qua each land holder, it becomes large only if all the land of all the land holders are clubbed together, hence the reduction on this count is not justified.
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 Page 83 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 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, 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.
12.14. In decision of Subh Ram (supra), the Apex Court has held and observed in paragraph no.25 as under:-Page 84 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 "25. The percentage of deduction (development cost factor) will be applied fully where the acquired land has no development. But where the acquired land can be considered to be partly developed (say for example, having good road access or having the amenity of electricity, water etc.), then the development cost (that is percentage of deduction) will be modulated with reference to the extent of development of the acquired land as on the date of acquisition. But under no circumstances, the future use or purpose of acquisition will play a role in determining the percentage of deduction towards development cost."
12.15. In the case of Udho Dass (supra), the Apex Court has held and observed in paragraphs no.16, 19 and 24 with regard to potency of land as under:-
"16. Although, in the present matter, sale instances around or near abouts the date of Notification of the present acquisition are available yet these cannot justify or explain the potential of a particular piece of land on the date of acquisition as the potential can be recognized only some time in the future and it is open to a landowner claimant to contend that the potential can be examined first at the time of the Section 18 Reference, the first Appeal in the High Court or in the Supreme Court in appeal as well. We must also highlight that Collectors, as agents of the State Government, are extraordinarily chary in awarding compensation and the land owners have to fight for decades before they are able to get their due. We take the present case as an example.
19. In this view of the matter, we are of the opinion that a landowner is entitled to say that if the compensation proceedings continued over a Page 85 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 period of almost 20 years as in the present case, the potential of the land acquired from him must also be adjudged keeping in view the development in the area spread over the period of 20 years if the evidence so permits and cannot be limited to the near future alone.
24. In the case before us, admittedly the land was acquired in the year 1990, had great potential value, and has been completely urbanized as huge residential complexes, industrial areas and estates and a huge education city have come up in the last ten or fifteen years. Moreover, insofar land which is to be used for residential purposes is concerned, a plot away from the main road is often of more value, as the noise and the air pollution alongside the arterial roads is almost unbearable. It is also significant that the land of Jamalpur Kalan was touching the rear side of the ECE factory and the High Court had granted compensation of Rs.250/- per square yard for the acquisition of the year 1992. We have also seen the site plan to satisfy ourselves and find that the land acquired from Jamalpur Kalan and the present land share a common boundary behind the ECE factory. The belting system in the facts of the present case would thus not be permissible.
12.16. In the case of Ramrao Shankar Tapase (supra), the Apex Court has held and observed the need of deduction of development cost charges in paragraphs no.29, 30 and 31 as under:-
"29. Now, so far as the submission on behalf of the claimants that the lands in question were acquired for the industrial corporation and were to be used for the industries/commercial purpose and accordingly the compensation should have been paid is concerned, what is Page 86 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 required to be considered is that the lands in question were agricultural lands. Even for the purpose of industrial use and/or industries, the corporation is required to incur the expenditure towards its development and therefore the development charges would have to be deducted while determining the compensation. However, in the present case, the development charges are not deducted. Even otherwise, the future use of the acquired land cannot be the main criteria to determine the compensation for the lands acquired.
30. In the case of Hookiyar Singh (supra), it is observed and held that while determining the compensation, the future use of the land is not the relevant consideration.
31. In the case of Subh Ram (supra), it is observed and held that the purpose of acquisition is also a relevant factor. However, the said observation may not apply in all cases and all circumstances as the general rule is that the landowner is being compensated for what he has lost and not with reference to the purpose of acquisition. It is further observed and held that the purpose of acquisition can never be a factor to increase the market value of the acquired land.
13. The elaborate submissions canvassed by the learned counsels on both the sides on the strength of the materials on record and the decisions cited at par shall lead to the findings as recorded hereinafter and being guided by the aforementioned legal position, we would opine that the error of facts on the part of Reference Court is only minimal. Page 87 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Additional grant of compensation whether justifiable:-
14. Taking firstly into consideration valiant endeavor of the appellant-State Authorities in seriously challenging the judgment and award questioning the grant of compensation by the Tribunal where the enhancement of the compensation is to the extent of 22 times on the basis of single sale instance, it is a matter of record that much grievance is made with regard to the additional compensation awarded by the Reference Court on the contention that no evidence was led by the claimant before the Reference Court and the Special Land Acquisition Officer had considered the entire gamut of facts while fixing the rate of land at the rate of Rs. 1,080/- per square meter. It is also an emphasis that he had many sale instances while so deciding and four of the survey numbers were still not converted into non-agricultural lands. The purpose of acquisition of the land for extension of High Court Building is also distinguished to huge absence of justification to enhance the amount by 22 times.
15. Upon close examination of the material evidence which Page 88 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 has come on record in the form of documentary evidence as also oral evidence of claimant Mr. Kasturbhai Patel cross examination of sole witness and the evidence of the appellant
-State, Reference Court has rightly arrived at the findings by analyzing the evidence and awarding cogent reasons in support thereof. The land has been acquired for public purpose for constructing Gujarat State Judicial Academy and additional amenities/building for the High Court. Of course, burden is placed upon the original claimants as they approached the Reference Court challenging the amount of compensation, however, onus of the State Authority is not less to establish before the Reference Court as well as before this Court in appeals, fair market value and adequacy of compensation granted.
15.1. We need to take note of the fact from record that the acquiring body had not sufficiently adduced documentary evidence with regard to the sale exemplar of the Town Planning Scheme No. 29 of Village Sola. Only evidence is of oral deposition of Talati-cum-Mantri/ Deputy Mamlatdar. From the material adduced on record, the amount awarded by Page 89 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 the Special Land Acquisition Officer is rightly held to be erroneous by the Reference Court when it considered the detailed submissions of the acquiring body and chose to award additionally the sum of Rs. 21,000/- to the amount awarded by the Special Land Acquisition Officer. This Court cannot be oblivious of the evidence which has come on record that the development in terms of infrastructure of Hospital, Commercial Buildings and other substantial developments around the land acquired for the Gujarat State Judicial Academy existed. Presence of Sola Government Hospital, Sola Bhagvat Vidhyapith, the High Court itself, restaurants, party plots, cinema on the cross roads and many other commercial buildings from google map further vindicate this aspect firmly. 15.2. The claimants have examined one Kasturbhai Patel in respect of the claim, who did not have the information regarding the acquired land with regard to the nature of land and he also was not aware about the distance between the land purchased by the Pacifica Developers Ltd. and the acquired land. His not being aware of the Survey Number or the TP Scheme Number in relation to the sale transaction between the Gujarat Tourism Corporation Limited and the Page 90 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Pacifica Developers Ltd. could hardly be a reason for this Court to overlook this sale exemplar. Furthermore, commercial transaction of sale exemplar is not the distinguishing characteristics to deny the benefits of the said sale exemplar in case of acquired land which also bear the similar potentiality.
15.3. This Court also needs to take into consideration the prevalent rate of jantri value in TP Scheme No. 29 which also, at the relevant point of time, was higher than the amount which has been determined by the Special Land Acquisition Officer. Reference is also needed to the fact that the first notification issued for the land acquired for the purpose of constructing the High Court Building was in the year 2004 and earlier for which the reference is still pending before the Reference Court,and the original claimant had made a claim for Rs. 5,000/- per square meter. That surely cannot be made the basis as urged by learned Government Pleader because much water has flown thereafter and the amount of developments that have taken place in and around this area and the manner in which prices of the land have shot up substantially, it shall need to be held that the Reference Page 91 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Court, in consonance with the settled principles of law has chosen to finalize the award and while so doing requisite evidence, oral as well as documentary are taken into consideration. The Reference Court has placed reliance on the best comparable instance for determination of market price which is on the very S.G.Highway and at the nearer distance. 15.4. The sale exemplar relied upon by the original claimants undoubtedly is the sole sale exemplar which is of a small area of land admeasuring 9140 square meters which had been sold at the rate of Rs. 25,021/- per square meter to the US based company by a registered sale deed dated 18.12.2007. The Reference Court while calculating the amount of compensation has held the market value to the tune of Rs. 22,080/- per square meter. It has made the deduction on account of the distance of 300 meters from the highway by reducing from the sale price 23% of the amount and it also made 15% increase on account of difference of time of 12 months after the sale instance (Rs. 3,753/-) (which according to the original claimant, ought to have been of 13 months i.e. Rs. 4,065/- between the transaction of sale exemplar and the land in question.) Page 92 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 15.5. As the period of 13 months is not being completed from the date of sale exemplar of Pacifica till the date of acquisition for the purpose of construction of additional amenities for the High Court, while giving rise of 15% and calculation of 13 months instead of 12 months as pleaded by the original claimants, is not finding favour with this Court and therefore, no change in that regard is desirable. The calculation therefore would be as follows:-
Relied upon sale instance dated 18.12.2007:- 25,021/- +Time difference (12 months) 15%:- 3,753/-
__________ 28,774/-
15.6. It emerges from the record that the original claimants have produced three sale instances and the reliance is placed by the Reference Court of the sale instance executed between the Gujarat Tourism Department and the Pacifica Developers Ltd. and rightly so considering the proximity of area as it is from the very area of Sola where the said land is situated and thereby, the enhancement of the compensation is to the tune of Rs. 22,080/- per square meter from Rs. 1,080/- per square meter.Page 93 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023
C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 15.7. The Town Planning Officer had considered 47 sale instances of the land of the Sola Village, he had averaged the sale consideration of 10 sale instances and on the strength thereof, the Town Planning Officer had determined the value of the acquired land at Rs. 1,080/- per square meter. The award of the Special Land Acquisition Officer being an offer in sale transactions referred to, may not be relied upon if the claimants resist the claim by adducing the evidence before the Reference Court.
15.8. The reliance of the appellant on the four sets of evidence
(i) letter of Town Planner (Exh. 182), (ii) Valuation Report of the acquired lands by the Town Planning and Valuation Department (Exh. 183), (iii) Sales Plan (Exh. 184), and (iv) Statement of details of the lands in question (Exh. 185) on close examination of these evidences, in our opinion, they are not found potent enough to brush aside the sound and logical reasonings given by the Reference Court in determining the additional value of the land except the deduction at the rate of 23% for the distance of 300 meters from the S.G.Highway. Page 94 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 15.9. It is also to be noted that the sale instance was of a road which is abutting the main Sarkhej-Gandhinagar Highway (S.G.Highway) whereas, the land acquired for the purpose of Gujarat State Judicial Academy is around 300 meters. away from the S.G.Highway. The distance of the acquired land from the S.G.Highway is only about 300 meters. 23% deduction from the market value of the relied upon sale instance is only on account of this distance of about 300 meters which has been severely challenged and which, according to us, deserves to be reduced to only 7%.
15.10. Noticing the settled principle of law and the parameters, all requisite amenities of the town life like water connection, well laid down road, drainage facility, electricity connection, etc. are at par with the sale instance which, in fact, touches the S.G.Highway. Considering the development and also the further possibility of development where the flyovers and acquisition for more lanes of road are on the way, this deduction of 23%, in our opinion, being on a higher side, it needs to be reduced to the extent of 7% only.
16. Again, this Court needs to recognize the fact that the Page 95 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 original claimants have discharged the burden by adducing the sale deeds of adjoining village and by examining the witness in respect of the sale deeds which were executed on 18.12.2007 whereby the parcel of the land was sold at the rate of Rs. 25,021/- per square meter, as against which, the appellant has not been able to point out anything contrary by any independent material to refute the same. 16.1. The acquired lands were covered under the Town Planning Scheme No. 43 at the time of acquisition and they were under the Residential Zone-2 classified under the Gujarat Development Control Regulations (GDCR). The sale instance was also given of the Residential Zone-1 and in both zones, the commercial development was permissible. Both the lands are almost similarly situated where there are open and flat lands and the acquired lands were connected with all amenities of water, drainage, electricity supply, telephone lines etc. They surely can be termed as developed lands where no further development was necessary for putting up construction, commercial or residential. 16.2. We also need to bear in mind that the acquired land Page 96 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 possessed an advantage of being away from the constant traffic. The Floor Space Index (FSI) permissible under the Residential Zone-1 is 1.8 whereas under Residential Zone-2 it is 1.2. The difference is of course of 0.6 FSI. The difference in FSI as was the determining factor to differentiate the land, the GDCR also allows the purchase of additional FSI. Distance from the Highway and Deduction of Development Cost Charges:-
17. Yet another contention which has been raised is in relation to the development and betterment charges to be deducted from the awarded amount which also deserves consideration along with the distance of the land from the main Highway where the Sale exemplar is situated. Overwhelming evidence would make us notice that the land situated in the area of Sola Village were already developed and the water and electricity facilities as well as those of the road connectivities were existing prior to the date of notification.
17.1. This Court is conscious of the decision of Viluben Page 97 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 Jhalejar Contractor (supra) where the Apex Court has held that the amount of compensation cannot be ascertained with mathematical accuracy and comparable instance shall need to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two position. The positive and negative factors are as under:-
Positive Factors Negative Factors
(i) smallness of size (i) largeness of area
(ii) proximity to a road (ii) situation in the interior at a
distance from the road
(iii) frontage on a road (iii) narrow strip of land with
very small frontage compared
to depth
(iv) nearness to developed (iv) lower level requiring the
area depressed portion to be filled
up
(v) regular shape (v) remoteness from developed
locality
(vi) level vis-`-vis land under (vi) some special
acquisition disadvantageous factors which
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would deter a purchaser
(vii) special value for an
owner of an adjoining
property to whom it may have
some very special advantage.
This has been reiterated by the Apex Court in case of Mahanti Devi vs. Jaiprakash Associates Ltd. [2016 SCC OnLine HP 4271].
17.2. At this stage, we need to also deal with the contention of the learned Government Pleader that the cost of development and betterment charges ought to have been deducted from the awarded amount. It is not in dispute that in various decisions which have determined the principles for determination of the market value of the acquired land, the Court has taken into consideration the requirement of deduction to be made for the purpose of development cost charges.
17.3. We need to, at this stage, bear in mind the fact that the land in question is situated in Sola village where it is termed Page 99 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 technically as a village because of the nomenclature given to it years ago, however, the area is fully developed area with all possible amenities as specified herein above much prior to the date of the notification. The contention on the part of the appellant of the need to deduct the development and betterment charges therefore, cannot not be countenanced. 17.4. The Apex Court in case of Kasturi (supra), had opined and held in respect of the agricultural land or undeveloped land which would have a potential value for housing or commercial purposes that normally 1/3rd amount of compensation should be deducted depending upon its nature, location, extent of expenditure involved for development and the area required for roads and other civic amenities etc. The possibility of acquired land to be plain or uneven, the soil of the land being soft or hard or it having a hillock or low-lying or having deep ditches. The normal deduction on account of the development is held to be 1/3rd of the amount of compensation and somewhere it could be more than 1/3rd also.
17.5. In case of Lal Chand (supra), for a large track of Page 100 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 underdeveloped agricultural land with potential for development and with reference to sale price of small developed plot, deductions have been varied between 20% to 75% of the prices of such developed plots. 17.6. In case of Andhra Pradesh Housing Board (supra), the Court deducted 1/3rd towards the development charges from the awarded amount to determine the compensation payable whereas in case of M.K.Rafiq Saheb (supra), noticing that the subject matter of acquisition was not agricultural land, to determine the fair compensation based on the sale transactions of a smaller piece of developed land, the deduction made by the High Court was increased to 60% instead of 50%.
18. The sale exemplar relied upon by the original claimants is surely higher than the jantri value and is comparatively the smaller area acquired by the land acquisition officer. At the same time, we cannot overlook the fact that there are 16 survey numbers of different owners which have been acquired and if different parcels of lands of different owners are taken into consideration, it is comparatively a smaller chunk of land Page 101 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 than the sale exemplar relied upon by the claimants. Therefore, the argument advanced on the part of the appellant does not find favour with this Court. 18.1. The Apex Court however, after taking note of all these decisions, in case of Bhagwathula Samanna (supra), has held that it is not the extant of area covered under acquisition the only relevant factor, even in vast area, there may be lands which have been fully developed having all amenities and situated at an advantageous position. If smaller area within the large track is already developed and suitable for building properties and have in its vicinity roads, drainage, electricity connection, etc. then the principle of deduction simply for that reason that it is a part of large track acquired, may not be justified. The Court also further held that the proposition that large area of land cannot possibly fetch a price at the same rate at which the small plots are sold, is not absolute proposition and in a given circumstances, it would be permissible to take into account the price fetched by the small plot of land. If the larger track of land, because of advantages position, is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed Page 102 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 area, with the little or no requirement of further development, the principle of deduction of the value for the purpose of comparison is not warranted.
18.2. Applying this principle, it can be very well said that here is also a case where more than 67 small plots have been acquired to give a larger chunk for the purpose of building the Gujarat State Judicial Academy. The sale exemplar is of a smaller area purchased by a US based Company for the purpose of Gujarat State Tourism Corporation whereas the larger area consisting of the small plots of land are away only by 300 mtrs. from the S.G.Highway and is situated in the same advantageous position and capable of being used for the purpose, for which, the smaller plots are used. They are also situated in a developed area with little or no requirement of further development. Hence, the principle of deduction of the value for the purpose of comparison would not be warranted.
19. There is a satisfactory evidence brought on record to substantiate the factum of the facilities of the road and other amenities in relation to the area acquired. We, therefore, are of the firm view that insistence on the part of the State for Page 103 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 applying the principle of deduction and reduction of the fair market value and adequacy of compensation of the acquired land is not justifiable. Valiant attempts made by learned Government Pleader for reduction of the market value by deduction of development cost charges find no favour of this Court and on the basis of decisions discussed on record, it can be held that the Reference Court has committed no error in adopting the approach it has done while passing the award. 19.1. We are also not in agreement with the State when it insists on the compensation to be paid for the agricultural land rather than non-agricultural land on the ground that all the parcels of land were agricultural land barring four survey numbers. These areas were already developed and by the time the notification was issued, it was no longer being used as the agricultural land. As mentioned herein above, there were Hospitals, Commercial Buildings and substantial development in and around the area. Even if the people had not started using this for commercial purposes, this surely would have fetched the substantial market value, the determination of which by the Reference Court, is in accordance with the settled principle of law.
Page 104 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 19.2. We also cannot ignore the fact that at the relevant point of time, there was a circular dated 09.05.2007 where the Stamp Duty Department had made necessary amendments for valuation of the property for the purpose of the Stamp Duty Calculation on the registration of the sale deed. The valuation certificate of the property was obtained from the Collector, Stamp Duty Department on 18.12.2007 which, of course, was quashed by this Court in Writ Petition No. 10 of 2013 vide order dated 03.03.2014. However, what is important is the sale consideration entered into between the parties of the sale deed dated 18.12.2007.
20. We would be in agreement with the submissions made for and on behalf of the State by learned Government Pleader that the sale instances since are of different Town Planning Schemes than the Scheme Nos. 28 and 29 situated near S.G.Highway, those sale exemplar would not form the basis for comparison for enhancing the compensation further to the extent of Rs.45,000/- per square meter. Therefore, in absence of any similarities between the lands sought to be depended upon and acquired land, cross appeals of the original Page 105 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 claimants deserve no sustainance except the extent of reduction to the tune of 7% from 23% on account of distance from the S.G.Highway. For the purpose of insistence on the part of the original claimants to insist on the grant of amount of Rs. 45,000/- per square meter, we find no justification at all for such enhanced claim in absence of any justifiable material and evidence for the purpose thereof. For awarding compensation, there cannot be any straightjacket formula and each case shall have to be examined on the strength of its own merit.
20.1. The Reference Court has after considering the oral as well as documentary evidences produced before it, passed this common judgment and award fixing the market value of land acquired at Rs. 20,000.00 per acre with 30% solatium on the market value and further the additional market value in terms of Section 23(1A) of the Land Acquisition Act and the interest was awarded is at the rate of 9%.
Conclusion:-
21. For the reasons stated above, we do not find any error Page 106 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 committed by the Reference court while determining the market value of acquired lands except on the aspect of deduction as discussed hereinabove and the same is legal, just and proper. There is no merits in this group of appeals filed by the State and no interference is required under Section 54 of the Act read with Section 96 of the Code. Hence, present appeals stands dismissed. The judgment and award passed by the learned Reference Court in the respective group of appeals is hereby confirmed except the aspect of deduction of 23%.
21.1. Resultantly, the First Appeals being 857/2018, 858/2018, 859/2018, 860/2018, 861/2018, 862/2018, 864/2018, 866/2018, 863/2018, 867/2018, 868/2018, 869/2018, 870/2018, 871/2018 and 872/2018 preferred by the State are not entertained whereas, the Cross Objections being 145/2022, 156/2022, 146/2022, 147/2022, 148/2022, 149/2022, 150/2022, 151/2022, 152/2022, 153/2022, 154/2022, 155/2022 and 93/2018 and First Appeals being 3297/2017 and 3298/2017 preferred by the original claimants are allowed to the extent of modifying the award passed by the Reference Court deducting the market value at 7% instead Page 107 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 of 23%. The calculation of which is as follows:-
Market Value of the sale instance:- 28,774/-
- 7% to be deducted (28,774*7%):- 2014.18/-
__________ Market value of the acquired land:- 26,759.82/-
21.2. We find that for this substantial reduction to the tune of 23%, there does not appear to be any reasonings much less the convincing grounds for this to be estimated to Rs. 22,080/-
per square meter in aggregate, however, noting the location of the present land in question which is 200 to 300 meters away from the S.G.Highway, in our opinion, even for the purpose of residence and an advantage that the land would have attached to the land, for deciding the market value of acquiring land compare to the land of Pacifica Developers Pvt. Ltd, the reduction by no means can be more than 7%.
22. From the foregoing discussion and analysis, we deem it fit to interfere with the impugned judgment and order passed by the Reference Court only to this limited extent. We are of the considered opinion that the Reference Court has not committed any error while passing the impugned judgment and award except the deduction of 23% which we reduce to Page 108 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023 C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023 7% and, therefore, the same deserves to be confirmed accordingly and the appeals filed by the appellants deserve to be dismissed and the cross objections as well as the first appeals filed by the original claimants deserve to be allowed to the aforementioned extent.
23. It is submitted by learned Government Pleader that pursuant to the directions of the Apex Court in Civil Appeal Nos. 4506-4520 of 2021 dated 30.07.2021, the 25% of the amount of award directed by the Reference Court has been already deposited with the Reference Court which had been permitted to be withdrawn either by furnishing the bank guarantee or the solvent security.
23.1. According to learned advocate Mr. Raiyani, eight of the original claimants have withdrawn the amount by furnishing the solvent security, details of which are in the table below. For rest of them, he has no idea.
No. First Appeal preferred by the Amount withdrawn by
claimant the claimant
1. First Appeal No. 857/2018 100% of 25%
2. First Appeal No. 858/2018 85% of 25%
3. First Appeal No. 859/2018 100% of 25%
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C/FA/857/2018 CAV JUDGMENT DATED: 06/02/2023
4. First Appeal No. 860/2018 50% of 25%
5. First Appeal No. 866/2018 100% of 25%
6. First Appeal No. 868/2018 90% of 25%
7. First Appeal No. 871/2018 100% of 25%
8. First Appeal No. 872/2018 100% of 25%
24. Be that as it may, the remaining amount of
compensation, as directed by this Court, with all statutory benefits, shall be deposited with the Reference Court within a period of sixteen (16) weeks from the receipt of copy of this order. The same once deposited, the concerned Court shall disburse it in favour of the original claimants through National Electronic Funds Transfer (NEFT) unless some direction from the Apex Court is obtained.
25. In view of the dismissal of the main appeals, the connected Civil Applications stand disposed of.
(SONIA GOKANI, J) (HEMANT M. PRACHCHHAK,J) Bhoomi Page 110 of 110 Downloaded on : Wed Feb 08 20:45:22 IST 2023