Gujarat High Court
State Of Gujarat & vs Heirs Of Deceased Bhanabhai Tapubhai & on 14 July, 2014
Author: Jayant Patel
Bench: Jayant Patel, Z.K.Saiyed
C/FA/5118/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 5118 of 2008
TO
FIRST APPEAL NO. 5126 of 2008
With
FIRST APPEAL NO. 5212 of 2008
TO
FIRST APPEAL NO. 5227 of 2008
With
FIRST APPEAL NO. 5318 of 2008
TO
FIRST APPEAL NO. 5328 of 2008
With
FIRST APPEAL NO. 5333 of 2008
TO
FIRST APPEAL NO. 5343 of 2008
With
FIRST APPEAL NO. 5471 of 2008
TO
FIRST APPEAL NO. 5478 of 2008
With
FIRST APPEAL NO. 5586 of 2008
TO
FIRST APPEAL NO. 5602 of 2008
With
FIRST APPEAL NO. 150 of 2009
With
FIRST APPEAL NO. 298 of 2009
TO
FIRST APPEAL NO. 318 of 2009
With
FIRST APPEAL NO. 503 of 2010
TO
FIRST APPEAL NO. 517 of 2010
With
FIRST APPEAL NO. 1435 of 2010
TO
FIRST APPEAL NO. 1445 of 2010
With
FIRST APPEAL NO. 5252 of 2010
TO
FIRST APPEAL NO. 5265 of 2010
With
FIRST APPEAL NO. 3689 of 2011
TO
FIRST APPEAL NO. 3691 of 2011
With
FIRST APPEAL NO. 3692 of 2012
Page 1 of 37
C/FA/5118/2008 JUDGMENT
TO
FIRST APPEAL NO. 3697 of 2012
With
FIRST APPEAL NO. 3698 of 2012
TO
FIRST APPEAL NO. 3699 of 2012
With
FIRST APPEAL NO. 3745 of 2012
TO
FIRST APPEAL NO. 3752 of 2012
With
FIRST APPEAL NO. 19 of 2014
TO
FIRST APPEAL NO. 20 of 2014
With
CROSS OBJECTION NO. 218 of 2011
In
FIRST APPEAL NO. 311 of 2009
With
CROSS OBJECTION NO. 4 of 2012
In
FIRST APPEAL NO. 313 of 2009
TO
CROSS OBJECTION NO. 6 of 2012
In
FIRST APPEAL NO. 5319 of 2008
With
CIVIL APPLICATION NO. 11614 of 2009
In
FIRST APPEAL NO. 5126 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
==============================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
Page 2 of 37
C/FA/5118/2008 JUDGMENT
4 Whether this case involves a substantial question
of law as to the interpretation of the
Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil
judge ?
==============================================================
STATE OF GUJARAT & 1....Appellant(s)
Versus
HEIRS OF DECEASED BHANABHAI TAPUBHAI &
1....Defendant(s)
==============================================================
Appearance:
MR DHAWAN JAYSWAL, AGP in FA Nos.5118/08 to 5126/08,
5318/08 to 5328/08, 5471/08 to 5478/08, 298/09 to 318/09,
503/10 to 517/10, 5252/10 to 5265/10, 3692/12 to 3697/12,
3745/12 to 3752/12, XOBJ No.6/12 & CA No.11614/09 for
State and its Officers
MR RAHUL DAVE, AGP in FA Nos.5212/08 to 5227/08, 5333/08
to 5343/08, 5586/08 to 5602/08, 150/09, 1435/10 to
1445/10, 3689/12 to 3691/12, 3698/12 to 3699/12, 19/14 to
20/14 and XOBJ No.5/12 for State and its Officers
MR NITIN M AMIN, MR AMAR MITHANI and MR VIMAL PATEL,
Advocates for Org. Claimants in appeals preferred by
State and its officers.
MR MD VAKIL and MR NISHANT LALAKIYA, Advocates for the
appellants in the appeals preferred by the original
claimants
==============================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 3, 4 & 14/07/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As in all the appeals, common questions arise for consideration and they relate to acquisition of the lands for the common project of Bhakharwad Page 3 of 37 C/FA/5118/2008 JUDGMENT Dam and the lands are also located in the adjoining villages, they are being considered simultaneously.
2. All the appeals arise from the respective common judgement and award passed by the Reference Court in the concerned Land Reference Cases, whereby compensations have been awarded for the respective lands. We may now consider the facts of each group of First Appeals.
3. The common facts are that in all groups of matters, the lands were acquired for the project of Bhakharwad Dam and the lands, which are subject matter of the present appeals, are located at Village Virdi or Village Matarvaniya or Village Bhakharwad, as the case may be.
4. The facts can be summarized groupwise as under: 4.1 In the group of First Appeal Nos. 5118/08 to 5826/08, the lands are located at village Virdi. The notification under section 4 of the Land Acquisition Act (hereinafter referred to as "the Act") was published on 12.08.1999. The notification under section 6 of the Act was published on 20.07.2000. Thereafter, the Award was passed on 02.02.2002 and the Special Land Acquisition Officer awarded compensation at Rs.400 per Are for nonirrigated land and Rs.700 per Are for irrigated land. As the claimants were not satisfied with the compensation, they Page 4 of 37 C/FA/5118/2008 JUDGMENT raised dispute under section 18 of the Act and such disputes were referred to the Reference Court for adjudication being Land Reference Cases Nos. 77/05 to 84/05 and 12/08. The Reference Court at the conclusion of the reference held the market price of the land at Rs.4300/ Are and awarded compensation accordingly plus statutory benefits under section 23(1A), solatium under section 23(2) and interest under section 28 of the Act. Under the circumstances, the State and its officers have preferred the present appeals for reduction of the amount of compensation.
4.2 In the group of First Appeal Nos. 5212/08 to 5227/08, the lands are located at village Matarvaniya. The notification under section 4 of the Act was published on 20.09.1999. Thereafter, notification under section 6 of the Act was published and the award was passed on 02.02.2002 and the Special Land Acquisition Officer awarded compensation at Rs.400 per Are for nonirrigated land and Rs.700 per Are for irrigated land. The claimants raised disputes under section 18 of the Act and demanded additional compensation. Such disputes were referred to the Reference Court for adjudication being Land Reference Case No.34/03 to 49/03. The Reference Court at the conclusion of the reference held that appropriate market value for irrigated land would be Rs.3,707 per Are and for nonirrigated land, it would be Rs.2,780/ per Page 5 of 37 C/FA/5118/2008 JUDGMENT Are and out of the said amount as Rs.700/ was already awarded as compensation per Are for irrigated land, the net amount was awarded at Rs.3,007/ per Are for irrigated land. However in respect of land reference cases No.35/03, 37/03, 45/03 and 47/03, the reference court found that there were fruit bearing mango trees of the age of about 7 years and therefore, the reference court under took separate valuation on yield method and awarded additional compensation at Rs.9,45,580/ in land reference cases No.35/03, Rs.8,95,460/ in land reference case No.37/03, Rs.22,78,230/ in land reference case No.43/03 and Rs.14,84,030/ in land reference case No.42/03. In addition to the above, the reference court awarded increase in the market value under section 23(1A), solatium under section 23(2) of the Act and interest under section 28 of the Act. It is under these circumstances, the State and its officers have preferred appeal for reduction of the amount of compensation.
4.3 In the group of First Appeal Nos. 5318/08 to 5328/08, the lands are located at village Virdi. The notification under section 4 of the Act was published on 15.07.1999. The notification under section 6 of the Act was published on 07.09.2000. The award was passed under section 11 on 02.02.2002 and the Special Land Acquisition Officer awarded compensation at Page 6 of 37 C/FA/5118/2008 JUDGMENT Rs.400 per Are for nonirrigated land and Rs.700 per Are for irrigated land. The claimants raised the disputes and demanded more compensation. Such disputes were referred to the Reference Court for adjudication being Land Reference Case No.1/06 to 11/06. The Reference Court at the conclusion of the reference awarded compensation at the market price at Rs.4,300/ per Are and awarded compensation accordingly plus statutory benefits under section 23(1A), solatium under section 23(2) and interest under section 28 of the Act. Under the circumstances, the State and its officers have preferred the present appeals for reduction of the amount of compensation.
4.4 In the group of First Appeal Nos.5333 to 5343 of 2008, the lands are located at village Virdi. The notification under section 4 of the Act was published on 15.07.1999. The notification under section 6 of the Act was published on 07.09.2000. Thereafter, the award was passed under section 11 of the Act and the Special Land Acquisition Officer awarded compensation at Rs.400 per Are for nonirrigated land and Rs.700 per Are for irrigated land. The claimants raised the dispute under section 18 of the Act for additional compensation. Such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.51/03 to 61/03. The Reference Court at the conclusion of the Page 7 of 37 C/FA/5118/2008 JUDGMENT reference held the market price at Rs.4300 per Are and awarded compensation accordingly plus statutory benefit under section 23(1A), solatium under section 23(2) and interest under section 28 of the Act. Under the circumstances, the State and its officers have preferred First Appeals for reduction of the amount of compensation.
4.5 In the group of First Appeal Nos.5471 of 2008 to 5478 of 2008, the lands are located at Virdi. The Notification under Section 4 of the Act was published on 30th September, 1999. The Notification under Section 6 of the Act was published on 7.9.2000. Thereafter, the award was passed on 2.2.2002 and the Special Land Acquisition Officer awarded compensation for the Jirayat land (hereinafter referred to as "non irrigated land") at Rs.400/ per Are and for Bagayat land (hereinafter referred to as "irrigated land") at Rs.700/ per Are. To say in other words, Rs.4/ per sq. mtr., and Rs.7/ per sq. mtr., respectively. As the claimants were not satisfied with the compensation, they raised the dispute under Section 18 of the Act and such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.71 to 78 of 2003. The Reference Court, at the conclusion of the Reference, vide judgement and award dated 28.2.2008, declared the market price at Rs.4,300/ per Are i.e. Rs.43/ per sq. mtr., and the Reference Court awarded compensation Page 8 of 37 C/FA/5118/2008 JUDGMENT accordingly. Additionally, the Reference Court has also awarded statutory benefits under Section 23(1A) and Section 23(2) of the Act and interest under Section 28 of the Act. Under these circumstances, the State Government and its Officers have preferred the present appeals before this Court for reduction of the amount of compensation.
4.6 In the group of First Appeal Nos.5586 of 2008 to 5602 of 2008, the facts are that the lands are located at Bhakharwad. The Notification under Section 4 of the Act was published on 18.5.2000. The Notification under Section 6 of the Act was published on 7.9.2000. Thereafter, the award was passed under Section 11 of the Act and the Special Land Acquisition Officer awarded compensation for nonirrigated at Rs.400/ per Are and for irrigated land at Rs.700/ per Are. As the claimants were not satisfied with the compensation, they raised the disputes under Section 18 of the Act and demanded higher compensation. Such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.83 to 98 of 2003 and LRC No.29 of 2008. The Reference Court, at the conclusion of the Reference, declared the market price at Rs.4,300/ per Are i.e. Rs.43/ sq. mtr., and the Reference Court awarded compensation accordingly. Additionally, the Reference Court has also awarded statutory Page 9 of 37 C/FA/5118/2008 JUDGMENT benefits under Section 23(1A) and Section 23(2) of the Act and interest under Section 28 of the Act. Under these circumstances, the State Government and its Officers have preferred the present appeals before this Court for reduction of the amount of compensation.
4.7 In First Appeal No.150/09, the land is located at village Bhakharwad. The notification under section 4 of the Act was published on 30.09.1999. The notification under section 6 of the Act was published on 08.10.2000. Thereafter, the award was passed on 02.02.2002. The Land Acquisition Officer awarded compensation at Rs.400 per Are since the land was nonirrigated land. The claimant raised dispute for additional amount of compensation. The said dispute was referred to the Reference Court for adjudication being Land Reference Case No.65/05. The learned Reference Court at the conclusion of the reference declared that the additional market price of Rs.2,380/ per Are and accordingly awarded additional compensation plus increase in the value under section 23(1A), solatium under section 23(2) and interest under section 28A of the Act. Under the circumstances, the present appeal has been preferred by the State and its officers for reduction of the amount of compensation.
4.8 In the group of First Appeals No.298/09
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C/FA/5118/2008 JUDGMENT
to 318/09, the lands are located at village
Bhakharwad. The notification under section 4 of
the Act was published on 09.09.1999. The notification under section 6 of the Act was published on 20.07.2000. Thereafter, the award was passed under section 11 of the Act and the Special Land Acquisition Officer awarded compensation at Rs.400 per Are for nonirrigated land and Rs.700 per Are for irrigated land. The claimants raised disputes and demanded higher amount of compensation. Such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.12/06 to 31/06 and 28/08. The Reference Court, at the conclusion of the reference, declared market price at Rs.4,300 per Are and awarded compensation accordingly plus statutory benefit under section 23(1A), solatium under section 23(2) and interest under section 28 of the Act. Under the circumstances, the State and its officers have preferred the present appeals for reduction of the amount of compensation.
4.9 In the group of First Appeal Nos.503 of 2010 to 517 of 2010, the lands are located at Bhakharwad. The Notification under Section 4 of the Act was published on 21.10.1999. The Notification under Section 6 of the Act was published on 20.7.2000. Thereafter, the award was passed under Section 11 of the Act on 2.2.2000 and the Special Land Acquisition Officer Page 11 of 37 C/FA/5118/2008 JUDGMENT awarded compensation for nonirrigated at Rs.400/ per Are and for irrigated land at Rs.700/ per Are. As the claimants were not satisfied with the compensation, they raised the disputes under Section 18 of the Act. Such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.13 to 27 of 2008. The Reference Court, at the conclusion of the Reference, declared the market price at Rs.4,300/ per Are i.e. Rs.43/ sq. mtr., and the Reference Court awarded compensation accordingly. Additionally, the Reference Court has also awarded statutory benefits under Section 23(1A) and Section 23(2) of the Act and interest under Section 28 of the Act. Under these circumstances, the State Government and its Officers have preferred the present appeals before this Court for reduction of the amount of compensation.
4.10 In the group of First Appeal Nos.1435 of 2010 to 1445 of 2010, the lands are located at Bhakharwad. The Notification under Section 4 of the Act was published on 12.8.1999. The Notification under Section 6 of the Act was published on 19.7.2000. Thereafter, the award was passed under Section 11 of the Act on 16.3.2002 and the Special Land Acquisition Officer awarded compensation for nonirrigated at Rs.400/ per Are and for irrigated land at Rs.700/ per Are. As the claimants were not Page 12 of 37 C/FA/5118/2008 JUDGMENT satisfied with the compensation, they raised the disputes under Section 18 of the Act and demanded compensation of Rs.100/ to Rs.120/ per sq. mtr. Such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.1 to 11 of 2008. The Reference Court, at the conclusion of the Reference, declared the market price at Rs.4,300/ per Are i.e. Rs.43/ sq. mtr., and the Reference Court awarded compensation accordingly. Additionally, the Reference Court has also awarded statutory benefits under Section 23(1A) and Section 23(2) of the Act and interest under Section 28 of the Act. Under these circumstances, the State Government and its Officers have preferred the present appeals before this Court for reduction of the amount of compensation.
4.11 In the group of First Appeal No.5252/10 to 5265/10, the lands are located at village Bhakharwad. The notification under section 4 of the Act was published on 12.08.1999. The notification under section 6 of the Act was published on 20.07.2000. Thereafter, the award was passed on 13.09.2002 and the Special Land Acquisition Officer awarded compensation at Rs.400 per Are for nonirrigated land and Rs.700 per Are for irrigated land. The claimants raised disputes under section 18 of the Act and the said dispute were referred to the Reference Court for adjudication being Land Reference Case No.85/05 Page 13 of 37 C/FA/5118/2008 JUDGMENT to 98/05. The Reference Court declared the market price at Rs.4,000/ per Are plus statutory benefits under section 23 (1A), solatium under section 23 (2) and interest under section 28 of the Act. Under the circumstances, the State and its officers have preferred the present appeals for reduction of the amount of compensation.
4.12 In First Appeals No.3689/12 to 3691/12, the lands are located at village Bhakharwad. The notification under section 4 of the Act was published on 12.08.1999. The notification under section 6 of the Act was published on 20.07.2000. Thereafter, the award was passed under section 11 of the Act on 02.02.2002 and the Special Land Acquisition Officer awarded compensation at Rs.700 per Are for irrigated land and Rs.400 per Are for nonirrigated land. The claimants raised the disputes under section 18 for additional amount of compensation and such disputes were referred to the Reference Court for adjudication being Land Reference Cases No.62/03 to 70/03. The Reference Court at the conclusion of the references, awarded additional compensation at Rs.300 per Are for irrigated land and Rs.200 per Are for nonirrigated land. Statutory benefits under section 23(1A) of the Act, solatium under section 23(2) of the Act and interest under section 28 of the Act. Under these circumstances, three original claimants of Land Reference Cases Nos. 68/03, 69/03 and 70/03 for Page 14 of 37 C/FA/5118/2008 JUDGMENT enhancement of compensation.
4.13 In the group of First Appeal Nos.3692 of 2012 to 3697 of 2012, the lands are located at Bhakharwad. The Notification under Section 4 of the Act was published on 12.8.1999. The Notification under Section 6 of the Act was published on 19.7.2000. Thereafter, the award was passed under Section 11 of the Act on 16.3.2002 and the Special Land Acquisition Officer awarded compensation for nonirrigated at Rs.400/ per Are and for irrigated land at Rs.700/ per Are. As the claimants were not satisfied with the compensation, they raised the disputes under Section 18 of the Act. Such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.62 to 67 of 2003. The Reference Court, at the conclusion of the Reference, awarded additional compensation at Rs.300/ per Are for irrigated land and Rs.200/ per Are for nonirrigated land. Additionally, the Reference Court has also awarded statutory benefits under Section 23(1A) and Section 23(2) of the Act and interest under Section 28 of the Act. Under these circumstances, the original claimants have preferred the present appeals for enhancement of the compensation.
4.14 In First Appeal Nos. 3698/12 to 3699/12,
the facts are that the lands are located at
Page 15 of 37
C/FA/5118/2008 JUDGMENT
village Matarvaniya. The notification under
section 4 of the Act was published on 01.07.1999. The notification under section 6 of the Act was published on 03.02.2000. The award was passed thereafter by the Special Land Acquisition Officer on 02.02.2002 and he awarded compensation at Rs.400 per Are for nonirrigated land and Rs.700 per Are for irrigated land. The claimants as were not satisfied with the compensation, they raised the disputes for additional compensation and the said disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.32/03 and 33/03. The Reference Court at the conclusion of the references, declared market price at Rs.1,000/ per Are for irrigated land and Rs.600/ per Are for non irrigated land. Out of the said amount, as Rs.400 per Are was already awarded as compensation for nonirrigated land and Rs.700 per Are for irrigated land, the reference Court awarded additional compensation at Rs.300 per Are for irrigated land and Rs.200 per Are for non irrigated land plus statutory benefit under section 23(1A) of the Act, solatium under section 23(2) of the Act and interest under section 28 of the Act. It is under these circumstances, the original claimants have preferred the present appeals for enhancement of the compensation.
4.15 In the group of First Appeal Nos.3745 of 2012 to 3752 of 2012, the lands are located at Page 16 of 37 C/FA/5118/2008 JUDGMENT Virdi. The Notification under Section 4 of the Act was published on 3.2.2000. The Notification under Section 6 of the Act was published on 18.1.2001. Thereafter, the award was passed under Section 11 of the Act on 16.3.2002 and the Special Land Acquisition Officer awarded compensation for nonirrigated at Rs.400/ per Are and for irrigated land at Rs.700/ per Are and Re.1/ per Are for waste land. As the claimants were not satisfied with the compensation, they raised the disputes under Section 18 of the Act. Such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.104 to 111 of 2003. The Reference Court, at the conclusion of the Reference, awarded additional compensation at Rs.300/ per Are for irrigated land and Rs.200/ per Are for nonirrigated land. Additionally, the Reference Court has also awarded statutory benefits under Section 23(1A) and Section 23(2) of the Act and interest under Section 28 of the Act. Under these circumstances, the original claimants have preferred the present appeals for enhancement of the compensation.
4.16 In the group of First Appeal Nos.19 of 2014 and 20 of 2014, the facts are that the lands are located at Matarvaniya. The Notification under Section 4 of the Act was published on 24.4.1999. The Notification under Section 6 of the Act was published on 3.2.2000. Thereafter, Page 17 of 37 C/FA/5118/2008 JUDGMENT the award was passed under Section 11 of the Act on 2.2.2002 and the Special Land Acquisition Officer awarded compensation for nonirrigated at Rs.400/ per Are and for irrigated land at Rs.700/ per Are. As the claimants were not satisfied with the compensation, they raised the disputes under Section 18 of the Act. Such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos.49 and 50 of 2006. The Reference Court, at the conclusion of the Reference, awarded additional compensation at Rs.200/ per Are. Additionally, the Reference Court has also awarded statutory benefits under Section 23(1A) and Section 23(2) of the Act and interest under Section 28 of the Act. Under these circumstances, the original claimants have preferred the present appeals for enhancement of the compensation.
5. We have heard Mr.Jayswal as well as Mr.Dave, learned AGPs appearing for the State and its Officers in the respective appeals, Mr.Nitin Amin, Mr.Amar Mithani, and Mr.Vimal Patel, learned Counsel appearing for the original claimants in the respective appeals preferred by the State Government and its officers.
6. We have also heard Mr.M.D. Vakil and Mr.Nishant Lalakiya, learned Counsel for the appellants in the appeals preferred by the original claimants and we have also heard Mr.Jayswal and Mr.Dave, Page 18 of 37 C/FA/5118/2008 JUDGMENT learned AGPs appearing for the State and its Officers in the appeals preferred by the original claimants.
7. It appears to us that followings are the broad common facts: 7.1 All lands are acquired under the Act for the project on Bhakharwad Dam.
7.2 The lands acquired are either located at Village Virdi or at Village Matarvaniya or at Bhakharwad. Village Virdi, Village Matarvaniya as well as Bhakharwad are adjoining villages located in the periphery area of Bhakharwad Dam and as such the composition of the dam includes the lands located at the aforesaid all three villages.
7.3 The Notification under Section 4 in majority of the cases are published in September 1999, however, in some cases, they are published in 2000. Therefore, the market valuation may be required to be considered of the land in the year 1999 or in the year 2000, as the case may be.
7.4 The Special Land Acquisition Officer has found that all the lands of all the aforesaid three villages are more or less having same fertility, may be for irrigated land or non irrigated land and, therefore, the standard compensation for the value of the land is Page 19 of 37 C/FA/5118/2008 JUDGMENT awarded at Rs.700/ per Are for irrigated land and Rs.400/ per Are for nonirrigated land.
7.5 In certain cases, there were mango trees and other fruit bearing trees and, therefore, when the land with the trees, Special Land Acquisition Officer has awarded additional compensation for the trees. The same forms part of the award passed by the Special Land Acquisition Officer for the respective lands. The Special Land Acquisition Officer for the waste land has awarded compensation at Re.1/ per Are. In none of the groups, the subject matter is waste land.
8. After having considered the aforesaid broad common facts, perusal of respective judgements and awards of the Reference Court in the concerned groups of First Appeals show as under: 8.1 In the appeals preferred by original claimants being First Appeals Nos.3698/2012 to 3699/2012, FA Nos.3689/2012 to 3691/2012, FA Nos.3692/2012 to 3697/2012 and FA Nos.3745/2012 to 3752/2012, the Reference Court has assessed the market value at Rs.1,000/ per Are for irrigated land and Rs.600/ per Are for non irrigated and after deduction of the amount already awarded as compensation by the Special Land Acquisition Officer, an additional amount of compensation at Rs.300/ per Are for irrigated land and Rs.200/ per Are for nonirrigated land Page 20 of 37 C/FA/5118/2008 JUDGMENT have been awarded as compensation. The pertinent aspect is that the Reference Court has assessed the market value of the land at Rs.1,000/ per Are for the irrigated land and Rs.600/ per Are for nonirrigated land. The perusal of those judgement of the Reference Court shows that the claimants relied upon the earlier award passed by the Reference Court in respect of the adjoining land, wherein the market price assessed was Rs.4,300/ per Are. However, the Reference Court did not rely upon those decision, since the appeals were pending against those judgements. The Reference Court thereafter found that on behalf of the claimants, no satisfactory evidence is produced for the yield. Further on the basis of the record of the Special Land Acquisition Officer, wherein sale instances were referred to, Reference Court assessed the market price of the land at Rs.1,000/ per Are for irrigated land and Rs.600/ per Are for nonirrigated land. The aforesaid are the common facts in all appeals preferred by the original claimants, except in First Appeals No.19 and 20 of 2014 preferred by the original claimants. In First Appeal Nos.19 and 20 of 2014 preferred by the original claimants the Reference Court has assessed the market value of the irrigated land at Rs.900/ per Are and Rs.700/ per Are and after deduction of already awarded compensation by the Special Land Acquisition Officer, RS.200/ per Are was awarded as additional compensation plus the Page 21 of 37 C/FA/5118/2008 JUDGMENT statutory benefits.
8.2 In all other cases, where the State and its officers have preferred appeals against the judgement and award passed by the Reference Court, there are three types of views taken by the Reference Court in different matters. One is that the Reference Court has assessed the market value of the land based on the basis of sale instances for comparable land; second is that the Reference Court has assessed the market value of the land based on yield method, wherein on behalf of the original claimants, it was contended that they were cultivating the land for agricultural purposes and they used to receive income from the cultivation of the crops; the third view taken by the Reference Court is that for awarding compensation based on the yield method, but for the mango trees and fruit bearing trees. The Reference Court, in case of aforesaid second view, wherein yield method was applied, has considered the cultivation for agricultural purpose and capitalized value is arrived at by multiplying ten times, whereas in the third view for mango trees and other fruit bearing trees, compensation is awarded by multiplying 12 times and thereafter compensation has been awarded.
9. In our view, in the appeals preferred on behalf of the original claimants, in all impugned judgements, the Reference Court has just Page 22 of 37 C/FA/5118/2008 JUDGMENT discarded the aspect of earlier award passed by the Reference Court for the adjoining lands on the ground that State has carried the matter in appeals before the High Court and the appeals were pending before the High Court. Even if it is considered that the Reference Court was justified in not relying upon the earlier awards in Land Reference Cases for the adjoining lands, then also it was required for the Reference Court to undertake the exercise independently for the assessment of the market value. We are not at all satisfied with the reasons recorded by the Reference Court for the assessment of the market value at Rs.1,000/ per Are for Rs.900/ per Are, since there are no proper reasons recorded by the Reference Court for arriving at the conclusion for assessment of the market value at Rs.1,000/ per Are for irrigated land. Same situation would arise for arriving at the decision by the Reference Court for assessment of the market value for nonirrigated land based on the assessment of market value of irrigated land at Rs.1,000/ per Are.
10. It is by now settled that the basis of the evidence, if found reliable, should be the sale instance of the nearby land or a comparable sale instances for the adjoining land. If the evidences for sale instances are not satisfactorily demonstrated before the Court, the Court may be required to consider the evidence Page 23 of 37 C/FA/5118/2008 JUDGMENT for previous awards passed for acquisition of the land in the very village or very city or adjoining village or adjoining city. It is true that for assessment of the market value yield method could also be one of the criteria, but while awarding compensation, if the aforesaid two evidences are available for sale instances and/or for previous awards, Court may not go for assessment of the market value on yield basis. Even otherwise also if the Court has to consider the yield method, there should be satisfactory evidence demonstrated before the Court that a particular amount of yield by way of net income was being derived at out of the cultivation or by growing of trees or otherwise. It is only thereafter the Court may be required to undertake the process of assessment of the market value based on yield method.
11. After taking into consideration the aforesaid broad aspect if we now consider the evidences led on behalf of the original claimants for yield method, we find that there is more reliable pieces of evidences for sale instances of the nearby lands. As per the evidences on record, it has transpired that there were four sale instances as under:
Sr. Date of Area (sq. Amount Rate per Sale mtr.) (Rs.) sq. mtr.
1 20.5.1999 5666 3,40,000 Rs.60/
2 20.5.1999 8094 2,18,000 Rs.27/
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3 09.07.1999 8903 3,30,000 Rs.37/
4 17.7.1999 8994 3,00,000 Rs.33/
12. The aforesaid sale instances are proved by the evidence of Ramesh Trikar Kamani, who was examined at Exh.12 in LRC No.34/2003. The said evidence gets support with the evidence of Kala Laxman, one of the claimants, who was examined at Exh.13 and as per him, the sale instances are of nearby lands. He has further deposed that the land under acquisition is having similar fertility and having potentiality for developing mango, orchid. There is also supporting evidence of Dharamsinh Tavji, who was examined at Exh. 14 for proving the aforesaid sale instances. On behalf of the claimants, one Savji Karsan Davdariya was examined as their witness at Exh. 25 and he has disposed that in the year 1999 for irrigated land, the price of the land was about Rs.1,25,000/ per Vigha approximately. For the sale instances of the land admeasuring 8903 sq. mtr., by document Exh.21 he has deposed that he was present at the time when the sale was entered into and the seller and purchaser had voluntarily entered into transaction of sale of the agricultural lands. In the crossexamination of the said witness, he has not been materially contradicted. In view of the aforesaid evidences, it can be said that the sale instance for the aforesaid agricultural land at Rs.37/ per sq. mtr., for the land admeasuring 8903 by Page 25 of 37 C/FA/5118/2008 JUDGMENT sale deed dated 9.7.1999 has been duly proved.
13. The another sale instance is of Rs.33/ per sq. mtr. On 17.7.1999. The date of the Notification under Section 4 of the Act is in September 1999 and nearby period. If the highest sale instance for the recent past is considered, it would be for Rs.37/ per sq. mtr. Under these circumstances, it appears that for the assessment of the market value at the rate of Rs.37/ per sq. mtr., if the Reference Court has relied upon the sale instance of the nearby land, which is duly proved, it may not be said that any error has been committed. It is also proved on record that all the lands covered under acquisition are having similar fertility and similar potentiality, may be located at Village Virdi or at village Matarvaniya or at village Bhakharwad.
On behalf of the claimants, the evidence is also led having common features when the claim for compensation is based on sale instances. It has come on record that those sale instance, duly proved at Rs.37/ per sq. mtr., is for irrigated land.
14. So far as nonirrigated land is concerned, the Reference Court has found that the difference in the market value will be less by 25%, whereas the Special Land Acquisition Officer has found the difference of about 40%, inasmuch as for the irrigated land, he has awarded compensation at Page 26 of 37 C/FA/5118/2008 JUDGMENT Rs.700/ per Are, whereas for nonirrigated land, he has awarded compensation at Rs.400/ per Are and, therefore, the difference would roughly come to about 40%. There is no specific evidence led on behalf of the claimants to show the difference in the market value between irrigated and non irrigated. We find that the deduction made by the Reference Court at the rate of 25% is much lower in comparison to the difference found by the Special Land Acquisition officer while awarding compensation, but at the same time it also appears to us that the difference so found by the Special Land Acquisition Officer between irrigated land and nonirrigated land is also very high. Considering the facts and circumstances, we find that it would be appropriate to make deduction at the rate of 30% for nonirrigated land in comparison to irrigated land. The amount if calculated for 30% deduction, it would come to Rs.11.10 and if rounded off, it would come to Rs.11/ and if deducted from Rs.37/, the net amount would come to Rs.26/ per sq. mtr., as against Rs.27.80/ per sq. mtr. (Rs.2,780/ per Are) for non irrigated land.
15. Under these circumstances, if the market value is to be assessed of the land under acquisition for irrigated land, it would be Rs.3,700/ per Are and for nonirrigated land, it would be Rs.2,600/ per Are.
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16. The learned Counsel appearing for the original claimants contended that if the yield method is applied, there is evidence for showing that the capitalized value of the land would be Rs.4,300/ per Are for irrigated land and such view has been elaborately discussed by the Reference Court in the judgement in LRC No.71/2003 to 78/2003, which is the subject matter of First Appeal No.5471 of 2008 to 5478 of 2008. It was submitted that wherever the Reference Court has applied yield method for cultivable lands, which were irrigated, the market value based on yield method is assessed at Rs.4,300/ per Are. It was also submitted that the Special Land Acquisition Officer, in the award in addition to the compensation for the land, has awarded compensation for fruit bearing trees and plantations, but the valuation assessed is on a very lower side between fruit bearing trees and other trees. It was submitted that as against the same for the mango or orchid trees, in the group of First Appeals No.5212 of 2008 to 5227 of 2008 arising from LRC Nos.34/2003 to 49/2003, evidence was led on behalf of the original claimants about the income derived from mango trees and the Reference Court has accepted the said evidence for the land over which the mango trees were available and accordingly capitalized value is arrived at by applying multiplier of 12. It was submitted by the learned Counsel for the Page 28 of 37 C/FA/5118/2008 JUDGMENT concerned original claimants that the said compensation based on yield method may not be interfered with by this Court.
17. Whereas, the learned AGP submitted that there should be standard criteria for assessment of the market value. It may be that the agriculturist who have grown trees, including mango trees, they may get additional compensation for the trees, but such compensation for the trees is already awarded by the Special Land Acquisition Officer as per the Government Resolution and, therefore, no additional amount of compensation should be awarded for the trees, including mango trees. Learned AGP further submitted that there is no sufficient and reliable evidence for the yield derived out of the cultivation of the irrigated land and the same is nothing but an exaggerated version of the cultivation, which has been erroneously accepted by the Reference Court. It was submitted that the original claimants would be entitled to only the difference in the valuation of the land as additional compensation in comparison to the valuation assessed by the Special Land Acquisition Officer.
18. We have considered the entire evidence led on behalf of the claimants for proving the income derived out of the cultivation. We have also considered the evidence led on behalf of the claimants for the income from the mango trees. In Page 29 of 37 C/FA/5118/2008 JUDGMENT our view the Reference Court has committed error in relying upon such evidence, which could not be said as sufficient to assess the market value. No evidence is produced on behalf of the claimants to show that a particular quantity of crop was sold by them out of cultivation and the money realized therefrom. The only evidence produced is of the area of agricultural land, the price of the product prevailing, and Village Form No.7 and 12. It is hardly required to be stated that the agricultural operations in any agricultural land and the income to be derived therefrom is dependent upon so many circumstances. Merely because the irrigation facility is available, it is not that in every case the crop would be available to the fullest satisfaction. It may result into less yield or no yield, if any change in whether or due to other natural circumstances, adversely affecting the growth of the crops. If the proof of income derived by way of sale of the product in the market committee or otherwise are produced, it may stand on a different footing and different consideration, but in absence thereof, it may not be possible for the Court to assess the actual income being derived from the agricultural operations. Further, the Court in a given case, may be required to undertake such exercise provided the other evidence for sale instance is not available. As observed by us herein above, the other reliable piece of sale instance for a Page 30 of 37 C/FA/5118/2008 JUDGMENT comparable land is available and is duly proved. Further, no material whatsoever for the actual income derived by way of vouchers or the bills for the products sold by concerned agriculturists or the claimants was produced. Therefore, same situation would arise in the assessment of the mango crops or the land over which mango trees were located. If the trees are fruit bearing trees, it may be that the concerned claimants owners might have waited for some times to develop the land until the trees would reach the age of bearing fruits. If the trees are grown the owners may have higher income in comparison to the normal agricultural land cultivation, but it cannot be two times or three times than the normal income of the agriculturists as assessed by the Reference Court. In our view, if the yield method for assessment of the market value is at Rs.43/ per Are is considered in comparison to Rs.37/ per Are based on sale instance, the valuation will be more by about 16%, which, in our view, cannot be accepted and it would be appropriate to assess the market value based on sale instances, which would be at Rs.3,700/ per Are for irrigated land and Rs.2,600/ per Are for nonirrigated land as per the observation made herein above.
19. However, for the land over which fruit bearing trees are grown or the mango trees are grown, the situation would be different. The assessment Page 31 of 37 C/FA/5118/2008 JUDGMENT made by the Reference Court based on the yield of mango trees is again without there being any satisfactory evidence for sale of the mangoes in the market by the concerned claimants. It may be that higher income may be derived from the sale of the mangoes in comparison to other crops but even if such income is considered the market value of the land would not be 200% to 400% of the land as assessed by the Reference Court. If the valuation arrived at by the Reference Court is considered for the land, bearing mango trees, it is ranging from 200% to 400% in comparison to the normal value of the irrigated and non irrigated land. Considering the facts and circumstances, we find that if the land having fruit bearing trees other than mango trees, it may have more valuation by 10%. We are inclined to take such view because neither in the evidence of the agriculturists, who were cultivating the land for taking normal crops, nor in the evidence of the claimants having mango trees or other trees any reliable material is produced for the exact or actual income derived at during the preceding year by sale of the agricultural products or any fruits or mangoes. Hence, we find it proper to rationalize the same by applying appreciation of 10% for the other fruit bearing trees and appreciation of 20% for the land having trees bearing mangoes. Hence, for the land where trees were in existence, as per the award of the Special Land Acquisition Officer Page 32 of 37 C/FA/5118/2008 JUDGMENT at the time of acquisition, the market value would be Rs.37/ plus Rs.3.70 (10%) more i.e. Rs.40.70, whereas for the land bearing trees of mango, it would be Rs.37/ plus Rs.7.40 (20%) more i.e. Rs.44.40, both can be rounded off at Rs.41/ and Rs.45/ per sq. mtr. (Rs.4,100/ per Are and Rs.4,500/ per Are) respectively.
20. In view of the aforesaid observation and discussion it can be summarized as under: (1) In respect of all the lands which are acquired in the month of September or nearby period of two months earlier than that or two months latter to it for irrigated land the compensation shall be Rs.3700/ per Are, out of which as Rs.700/ per Are is already awarded as compensation, Rs.3000/ per Are shall be the additional amount of compensation. In cases where such lands are nonirrigated land the market value is assessed at Rs.2600/ per Are, out of which Rs.400/ per Are is already awarded as compensation. The net additional amount of compensation for such nonirrigated land would be Rs.2200/ per Are. It is further observed and held that if any of the land may be irrigated or nonirrigated was having fruit bearing trees as per the award of the Special Land Acquisition Officer other than mango trees, for irrigated land such amount of compensation shall be Rs.4100/ per Are, out of which as Rs.700/ per Page 33 of 37 C/FA/5118/2008 JUDGMENT Are is already awarded as compensation, those claimants would be entitled to additional compensation of Rs.3400/ per Are. In the event as per the award of Special Land Acquisition Officer such irrigated lands were having fruit bearing trees including mango trees or only mango trees, the compensation would be Rs.4500/ per area, out of which as Rs.700/ per Are is already awarded as compensation those claimants would be entitled to Rs.3800/ per Are as additional compensation.
(2) In the event the lands were nonirrigated lands, but any fruit bearing trees were in existence at the time of award as per the award of the Special Land Acquisition Officer for those lands compensation shall be Rs.2860/ per Are, out of which as the amount of Rs.400/ per Are is already awarded as compensation the original claimants shall be entitled to additional compensation at Rs.2460/ per Are. In the event as per the award of the Land Acquisition Officer on such nonirrigated lands there were mango trees with other fruit bearing trees or only mango trees then the compensation would be Rs.3120/ per Are, out of which Rs.400/ per area is already awarded as compensation. The claimants would be entitled to Rs.2720/ per Are as additional compensation. It is further observed and clarified that the aforesaid additional compensation shall be in addition to the Page 34 of 37 C/FA/5118/2008 JUDGMENT compensation already awarded by the Special Land Acquisition Officer in the award for fruit bearing trees or for mango trees as the case may be.
(3) In the case where notification under Section 4 of the Act is published in February, 2000 the concerned land owners/original claimants would be entitled to 5% more as additional compensation in comparison to the aforesaid cases where the notification under Section 4 was published in September, 1999 or two months prior to or two months latter to September, 1999. The aforesaid direction shall apply proportionately to the respective category of the land may be irrigated or nonirrigated, may be with the fruit bearing trees as per the award or fruit bearing trees including mango trees or only mango trees as the case may be.
(4) The other benefits awarded by the Reference Court are for the benefit under Section 23(1A), solatium under Section 23(2) of the Act and the interest under Section 28 of the Act to which we are not inclined to interfere, save and except with the clarification that the respective original claimants shall be entitled to the aforesaid statutory benefits on the basis of the aforesaid principal amount of additional compensation as held by us hereinabove for the respective category of the land.
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21. The aforesaid shall be the situation in respect of all the original claimants. However, so far as original claimants of Land Reference Case No.12 of 2008 (First Appeal No.5126 of 2008) is concerned, there is dispute raised for entitlement by one Babubhai V. Taraiya by preferring Civil Application No.11614 of 2009. In respect of any of the other original claimants of the present group of the matters no such dispute is raised for entitlement of the compensation by any person. Hence for the original claimants of Land Reference Case No.12 of 2008 (First Appeal No.5126 of 2008), the Reference Court shall disburse the amount of additional compensation with the statutory benefits, only after the aspect of entitlement of the compensation is finalized by the Reference Court. On that aspect the Reference Court will adjudicate and shall finally decide the person entitle for compensation and the disbursement shall be thereafter.
22. The concerned Special Land Acquisition Officer for the acquiring body as the case may be would undertake the calculation as per the present Judgment and/or order for the amount payable as additional compensation with the statutory benefits and after deduction of the amount already deposited with the Reference Court the balance amount of compensation shall be deposited Page 36 of 37 C/FA/5118/2008 JUDGMENT within a period of two months from the receipt of the judgment and order of this Court.
23. All the appeals as well as crossobjections are disposed of accordingly.
24. Civil Application No.11614 of 2009 shall also stand disposed of accordingly.
(JAYANT PATEL, J.) (Z.K.SAIYED, J.) vinod/bjoy/kks Page 37 of 37