Gujarat High Court
Patel Mahendrabhai Jaysinghbhai vs State Of Gujarat on 21 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/FA/1098/2023 JUDGMENT DATED: 21/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1098 of 2023
With
R/FIRST APPEAL NO. 1100 of 2023
With
R/FIRST APPEAL NO. 1101 of 2023
With
R/FIRST APPEAL NO. 1105 of 2023
With
R/FIRST APPEAL NO. 1111 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
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 ?
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PATEL MAHENDRABHAI JAYSINGHBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR MANISH S SHAH(5859) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MS SURBHI BHATI, AGP for Respondent State (in all matters)
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 21/03/2023
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NEUTRAL CITATION
C/FA/1098/2023 JUDGMENT DATED: 21/03/2023
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ORAL JUDGMENT
1. Heard learned Advocate Mr.Manish Shah for the appellants and learned AGP Ms.Surbhi Bhati for the respondent State.
2. Admit. Learned AGP waives service of notice of admission on behalf of the respondent State. With the consent of the learned Advocates for the parties, the present appeals are taken up for final disposal.
3. By way of these appeals, the appellants - original claimants challenge common judgement and award passed by the learned Principal Sr. Civil Judge, Modasa, District Aravalli dated 24.1.2017 in LARs No.17 to 21 of 2011 (main LAR No.17 of 2011) and common judgement and award passed by the learned Principal Sr. Civil Judge, Modasa, District Aravalli dated 29.9.2016 in LARs No.1815 to 1833 of 2010 and pray for enhancement of compensation awarded. The present appeals are filed in LARs No.17/2011 (FA No.1100/2023), No.19/2011 (FA No.1101/2023), No.20/2011 (FA No.1098/2023), No.21/2011 (FA No.1111/2023) and LAR No.18/2011 (FA No.1105/2023).
4. Facts as much as relevant for the purpose of deciding the present appeals are mentioned herein below:-
4.1. It would appear that the lands, which had been acquired for building a canal for the purpose of Lank Water Irrigation Scheme and whereas it would appear that Notification under Section 4 of the Land Acquisition Act (herein after referred to as "the Act") had been issued on 5.8.2008 and Notification under Section 6 of the Act had been issued on 30.7.2009. The Land Acquisition Officer had declared his award on 27.4.2010, whereby he had considered the Page 2 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023 NEUTRAL CITATION C/FA/1098/2023 JUDGMENT DATED: 21/03/2023 undefined value of the land at Rs.11/- per sq. mtr. Being aggrieved by the said award, the claimants had preferred the Land Acquisition Reference cases, which are referred to herein above and whereas vide the impugned judgement and award, the learned Reference Court had awarded Rs.110.20 per sq. mtr., i.e. actually Rs.99.20 per sq. mtr., as enhanced amount, as against the amount claimed by the present appellants at the rate of Rs.311.80 per sq. mtrs.
4.2. It would further appear that as against the above, the learned Reference Court i.e. the learned Principal Sr. Civil Judge, Bayad, District Aravalli in Land Acquisition Reference No.113 of 2013 to 121 of 2017 was considering lands acquired for the same project, of the same village and whereas vide judgement and award dated 9.7.2021, the learned Reference Court had awarded an amount of Rs.300/- per sq. mtr., and whereas it would appear that the said award has attained finality between the parties, more particularly the State Government having not challenged the said award before this Court and having disbursed the enhanced amount in favour of the claimants herein.
4.3. It appears that pursuant to the said decision being passed in case of lands situated in the same village, the appellants herein had preferred the appeals with applications for condoning delay and whereas this Court vide order dated 13.3.2023 had condoned the delay, subject to the condition that the claimants shall not claim any interest upon the enhanced compensation for the period of delay.
5. Learned Advocate Mr.Manish Shah on behalf of the appellants has limited his submission to placing reliance on the judgement dated 9.7.2021 with regard to the lands situated in the very same village and Page 3 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023 NEUTRAL CITATION C/FA/1098/2023 JUDGMENT DATED: 21/03/2023 undefined whereas learned Advocate would submit that since the learned Reference Court has fixed the market value of the acquired lands at Rs.300/- per sq. mtr., and since the same has been accepted by the State Government, therefore, the lands of the present appellants also being situated in the same village, the appellants are also entitled to the same enhancement.
6. These appeals are vehemently contested by learned AGP Ms.Surbhi Bhati on behalf of the respondent State. Learned AGP would try and draw a distinction inasmuch as, according to the learned AGP, the appellants are required to prove by leading evidence that the lands, which were subject matter of Land Acquisition Reference No.113 of 2017 to 121 of 2017 and the lands of the present appellants had the same potentiality. Learned AGP would rely upon the decision of the Hon'ble Apex Court in case of Basant Kumar and Others Vs. Union of India and Others, reported in (1996) 11 SCC 542, more particularly paragraph 52, whereby Hon'ble Apex Court inter alia observed that the entire lands of the village should not have been treated as one unit and compensation should not have been determined on that basis. Learned AGP would submit that since nothing has been brought on record by the appellants that the lands which had been acquired in case of Land Acquisition Reference cases, which are relied upon by the appellants and the lands, which are belonging to the present appellants having similar potentiality and merely on the basis that both the lands belong to the same village, therefore, same consideration should not be applied to the lands in question.
7. As against the same, learned Advocate Mr.Shah for the appellants would submit that while it is undoubtedly true, more particularly as observed by the Hon'ble Apex Court, that merely because a land is part of the Page 4 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023 NEUTRAL CITATION C/FA/1098/2023 JUDGMENT DATED: 21/03/2023 undefined same village, the said land may not always claim equality with the other lands as regards the purpose of fixation of value, but since there are other circumstances, based upon which the value of the land could increase and, in any case, according to learned Advocate what had weighed with the Hon'ble Apex Court, more particularly as appearing from the said paragraph that the village in question was spread over a vast extent, admeasuring almost 1700 vigas of land. Learned Advocate would submit that the consideration which weighed with the Land Acquisition Officer, as regards a village having such a vast tracts of land may not be applied in the instant case, since the present case is with regard to a village, which is not at all comparable as regards vastness.
Furthermore, learned Advocate would submit that there is no difference between the lands which were subject matter of the judgement upon which the appellants are relying upon and the lands of the present appellants more particularly, according to learned Advocate, all the lands, which were subject matter of acquisition were agricultural jirayat lands and there was no difference whatsoever between the lands of the present appellants and the lands, which were subject matter of the judgement and order dated 9.7.2021.
7.1. Learned Advocate Mr.Shah would further submit that since the Notification under Section 4 had been issued in the present case on 5.8.2008 and whereas the Notification in case of LAR Nos.113 of 2017 to 121 of 2017 having been issued on 16.10.2004 and there being a time span of 3 years 9 months and 20 days between the Notification in case of the present appellants and the case which they are relying upon, therefore, the appellants are entitled for a 10% rise in the award of LAR Nos.113 to 121 of 2017, which comes to around Rs.114/- in total for the period of 3 years 9 months and 20 days. Learned Advocate would submit that all other entitlements Page 5 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023 NEUTRAL CITATION C/FA/1098/2023 JUDGMENT DATED: 21/03/2023 undefined upon the value of the lands being fixed at Rs.300/- per sq. mtr., may also be awarded to the present appellants.
8. Heard learned Advocates for the respective parties and perused the documents on record including the impugned judgement as well as the judgement relied upon by the appellants. In the considered opinion of this Court, the following issues arise for consideration by this Court:-
8.1. Whether the judgement and award passed by the learned Reference Court dated 9.7.2021 in LAR Nos.113 to 121 of 2017 was of a comparable instance ?
8.2. Whether the appellants would be entitled to the same enhancement as had been granted in case of the claimants in the said Land Acquisition Reference ?
8.3. What order ?
9. At the outset, it is required to be noted that while the fact of the judgement and award dated 9.7.2021 in LAR Nos.113 to 121 of 2017 not being challenged before this Court is not in dispute, it is also not in dispute that the amount in question i.e. the enhanced amount has already been paid by the State Government to the claimants. Under such circumstances, the only aspect, which requires consideration would be whether the lands, which were subject matter of the present Land Acquisition Reference cases and the lands, which were subject matter of the Land Acquisition Reference Nos.113 to 121 of 2017 are comparable instances. In this regard, it would be pertinent to mention that a perusal of the impugned decision would reveal that the lands, which had been acquired were for the purpose of constructing a canal and whereas the lands were contiguous to each other, more particularly for facilitating Page 6 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023 NEUTRAL CITATION C/FA/1098/2023 JUDGMENT DATED: 21/03/2023 undefined the construction of canal and all the lands in question were generally agricultural lands, more particularly situated in the same village, Demai.
9.1. It also requires to be noted that insofar as the lands, which were subject matter of judgement and award dated 9.7.2021 were all agricultural lands, and whereas from the perusal of the entire judgement, it does not appear that there was any additional circumstances, which had weighed with the Court for fixing valuation of the lands in question. It would appear that while the learned Reference Court has inter alia discussed with regard to lands situated in adjoining villages, where the value had been fixed by the learned Reference Court and whereas it is after such discussion that the learned Reference Court had valued the lands in question at the rate of Rs.300/- per sq. mtr. It would also be pertinent to mention here that the entire judgement does not reflect any special circumstances, which has weighed with the Court in enhancing the compensation. Considering the said scenario, more particularly having regard to the fact that there was no material as considered by the learned Reference Court in the judgement and award dated 9.7.2021, which led to enhanced valuation of the lands in question, and whereas since the category of lands, in both the cases i.e. the lands in the present Reference case and the lands in the Reference case upon which the learned Advocate for the appellants has relied, which was decided by 9.7.2021, are the same i.e. agricultural lands and having regard to the fact that both the lands are situated in the very same village and furthermore, also having regard to the fact that there is no special circumstances, which has weighed with the learned Reference Court while passing the decision which has been relied upon by the learned Advocate for the appellants and since it appears that there is no difference as regards the potentiality and the Page 7 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023 NEUTRAL CITATION C/FA/1098/2023 JUDGMENT DATED: 21/03/2023 undefined value of both the lands, therefore, in the considered opinion of this Court, the consideration that weighed with the learned Reference Court in passing the judgement and award dated 9.7.2021 are also required to be applied mutatis mutandis the impugned judgement and award under challenge before this Court.
9.2. Insofar as the submission made by learned AGP relying upon the decision of the Hon'ble Apex Court in case of Basant Kumar and Others (supra), whereby the Hon'ble Apex Court has inter alia observed that the entire lands of a village should not be treated as one unit and compensation should not be determined on the said basis. It would appear that such a submission may not be countenanced, more particularly since from the discussion as above, it would appear that the lands are contiguous to eather other, more particularly as noted herein above, except discussing with regard to lands belong to adjacent village, the learned Reference Court has not mentioned any special circumstances, insofar as the present lands are concerned. Again at this stage, it would be relevant to refer to the observations of the Hon'ble Apex Court in case of Mohammad Raofuddin Vs. Land Acquisition Officer, reported in (2009) 14 SCC 367. Paragraphs 10, 11, and 14 of the said decision being relevant for the present purpose are being reproduced herein below for benefit:-
"10. One of the principles for determination of the market value of the acquired land would be the price an interested buyer would be willing to pay if it is sold in the open market at the time of issue of Notification under Section 4 of the Act. But finding a direct evidence in this behalf is not an easy exercise and, therefore, the Court has to take recourse to other known methods for arriving at the market value of the land acquired.
11. One of the preferred and well accepted methods adopted for working out the market value of the land in acquisition cases is the comparable sales method. The comparable sales i.e. the lands sought to be compared Page 8 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023 NEUTRAL CITATION C/FA/1098/2023 JUDGMENT DATED: 21/03/2023 undefined must be similar in nature and potentiality. Again, in the absence of sale deeds, the judgments and awards passed in respect of acquisition of lands, made in the same village and/or neighbouring villages can be accepted as valid piece of evidence and provide a sound basis to determine the market value of the land after suitable adjustments with regard to positive and negative factors enumerated in Sections 23 and 24 of the Act. Undoubtedly, an element of some guess work is involved in the entire exercise.
12 and 13 ***
14. Thus, comparable sale instances of similar lands in the neighbourhood at or about the date of Notification under Section 4(1) of the Act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a land owner.Nevertheless, while ascertaining compensation, it is the duty of the Court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it."
9.3. Now, considering the law laid down by the Hon'ble Apex Court in case of Mohammad Raofuddin (supra), it would appear that in absence of any sale deed judgement and award passed in respect of the acquisition of the lands made in the same village or nearby villages can be accepted as a valid piece of evidence, which provides a sound basis to determine market value of the land. In the instant case, it would appear that the lands, which had been acquired in the same village for albeit for a different purpose had been valued by the Reference Court at the rate of Rs.300/- per sq. mtrs., as against Rs.6/- per sq. mtrs., awarded by the Land Acquisition Officer. It would be to this Court absolutely unfair not to rely upon the said decision and grant the same benefit as regards land acquired in the very village, albeit for a different purpose. Again as observed by the Hon'ble Apex Court, the method of relying upon the judgements and award passed in respect of acquisition of lands made in the same village is a valid piece of evidence to determine the market value of the land. Thus, while it is true that in case of Basant Kumar (Supra), the Page 9 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023 NEUTRAL CITATION C/FA/1098/2023 JUDGMENT DATED: 21/03/2023 undefined Hon'ble Apex Court has inter alia observed that the entire lands in the village could not be treated as one unit, underline consideration as found in the judgement being that the different lands situated in the same village would not command same market values. The lands abutting main road or national highway fetch higher market value and as the location goes backward, market value of interior land would be less even for same kind of land. In the instant case, as noticed, in the decision of the learned Reference Court in LAR No.113/2017 dated 9.7.2021, the learned Reference Court has while determining the value of the land not fixed the market value based upon any special circumstances like the land being nearer or abutting main road or national highway etc. Under such circumstances, in the considered opinion of this Court, the law laid down by the Hon'ble Apex Court in case of Basant Kumar (supra) would not advance the cause of the respondent.
10. Having regard to the above discussion and conclusion, the following orders are passed :-
10.1. That the market value of the lands is enhanced from Rs.110.20 per sq. mtr. to Rs.300/- per sq. mtr., (in LAR Nos.17, 18, 19, 20 and 21 of 2011 - FA Nos.1100, 1101, 1098, and 1111 of 2023) i.e. the appellants would be entitled to additional compensation of Rs.189.80 per sq. mtr. (i.e. Rs.300/- per sq. mtr. minus Rs.110.20 per sq. mtr.).
10.2. The appellants are entitled to an additional amount at the rate of 12% per annum on such market value for the period from the date of the publication of the Notification under Section 4 of the Act to the date of the award of the Collector of the date of taking possession of the lands, whichever is earlier in view of Section 23 (1-A) of the Act.Page 10 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023
NEUTRAL CITATION C/FA/1098/2023 JUDGMENT DATED: 21/03/2023 undefined 10.3. It is further ordered that the claimants are also entitled, in additional to the market value of the land, to a sum of 30% on such market value, in consideration of compulsory nature of the acquisition in view of Section 23(2) of the Act along with interest.
10.4. It is further ordered that the claimants are also entitled for the simple interest at the rate of 9% per annum for the first year from the date on which possession is taken of the lands to the date of payment into Court on the additional amount of compensation and 15% per annum after expiry of such first year till payment is made on the additional amount of compensation in view of Section 28 of the Act.
10.5. The appellants are also entitled to 10% rise in the amount of award between the period from 16.10.2004 i.e. from the date of Notification under Section 4 of the Act in Land Acquisition Reference Nos.113 to 121 of 2017 to 5.8.2008 i.e. the date on which Notification under Section 4 of the Act in the Land Acquisition Reference cases, which were the subject matter of the issue in the impugned decision i.e. for 3 years 9 months and 20 days, which comes to Rs.114/-per sq. mtr., in LAR Nos.17, 19, 20 and 21 of 2011. In short, Rs.300/- per sq. mtr. plus Rs.114/- per sq. mtr., which comes to Rs.414/- per sq. mtr.. Since Rs.110.20/- per sq. mtr., has already been paid, net amount comes to Rs.303.80 per sq. mtr., in LAR Nos.17, 18, 19, 20 and 21 of 2011 and Rs.300/- per sq. mtr. plus Rs.124/- per sq. mtr., which comes to Rs.424/- per sq. mtr. Therefore, the appellants would be entitled to an additional amount at the rate of Rs.303.80 per sq. mtr., respectively more particularly such amount of compensation to be awarded to the appellants bereft the interest from the date of award in question i.e. 24.1.2017 till the date of filing of the First Appeals.
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11. The respondents are directed to deposit the additional enhanced amount within a period of 12 weeks from the date of receipt of this order. With these observations and directions, the present appeals stand disposed of as allowed.
Sd/-
(NIKHIL S. KARIEL,J) V.V.P. PODUVAL Page 12 of 12 Downloaded on : Sun Sep 17 22:53:34 IST 2023