Gujarat High Court
Group General Manager vs Govindbhai Nanjibhai Patel & on 3 August, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri
C/FA/388/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 388 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GROUP GENERAL MANAGER....Appellant(s)
Versus
GOVINDBHAI NANJIBHAI PATEL & 1....Defendant(s)
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Appearance:
MR AJAY R MEHTA, ADVOCATE for the Appellant(s) No. 1
MR DHAWAN JAYSWAL ASST. GOVERNMENT PLEADER for the
Defendant(s) No. 2
MR SHITAL PATEL WITH MR A J PATEL, ADVOCATE for the Defendant(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
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C/FA/388/2010 JUDGMENT
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 03/08/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. This appeal is directed against the judgment and award dated 16.05.2008 passed by the reference Court in LAR No. 4890/2003 whereby, the reference was partly allowed and the claimants were awarded additional compensation @ Rs.100/ per sq. metre, over and above the compensation awarded by the Land Acquisition Officer, along with interest and other statutory benefits.
2. The facts in brief are that the lands situated in Village :
Adhraj, Taluka : Kadi, District : Mahesana were proposed to be acquired by the State Government for the public purpose of ONGC. The Notification u/s.4 of the Land Acquisition Act, 1894 (for short, "the Act") was published on 25.01.2000 and Declaration u/s.6 was made on 12.12.2000. The Land Acquisition Officer passed award u/s.11 granting compensation @ Rs.24/ per sq. metre for the acquired lands. Being aggrieved by the award, the claimants raised dispute, which culminated into reference before the Court below. After considering the evidence on record, the Page 2 of 8 HC-NIC Page 2 of 8 Created On Thu Aug 06 01:05:47 IST 2015 C/FA/388/2010 JUDGMENT reference Court partly allowed the reference, by way of impugned award. Hence, this appeal.
3. We have heard learned counsel for both the sides and perused the documents on record. In respect of lands situated in adjoining Village : Nani Kadi, this Court has fixed the market price, vide judgment and order passed in First Appeal No.5241/2008 dated 06.07.2015, which is reproduced hereunder for ready reference;
"1. Present appeal has been filed against the judgment and award dated 07/03/2008 passed by the learned 9th Additional Senior Civil Judge, Mahesana in Land Acquisition Reference Case No. 5360 of 2003, whereby, the reference was partly allowed and the appellant ONGC was ordered to pay additional compensation @ Rs.100/ per sq. mtr. over and above the amount awarded by the Special Land Acquisition Officer.
2. The facts in brief of the case are that the land situated at village: Nani Kadi, Tal.: Kadi, Dist.: Mahesana was acquired by the appellant ONGC for which, Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act for brevity) was published on 26/04/1999 and Section 6 Notification was published on 17/10/1999. Thereafter, award came to be passed by the competent authority fixing the amount of compensation @ Rs.24/ per sq. mtr. However, being dissatisfied with the award, the original claimants raised dispute by way of reference before the Court below. The reference Court, after appreciating the documents on record, partly allowed the Page 3 of 8 HC-NIC Page 3 of 8 Created On Thu Aug 06 01:05:47 IST 2015 C/FA/388/2010 JUDGMENT same by way of the impugned award. Hence, the present appeal.
3. The main contention raised by the learned advocate appearing for the appellant ONGC is that the acquisition is pertaining to the land situated at village: Nani Kadi for which Notification under Section 4 of the Act was published on 26/04/1999 and Section 6 Notification was published on 17/10/1999. The Special Land Acquisition Officer, after hearing the parties and following due procedure, awarded the amount of compensation @ Rs.24/ per sq. mtr., however, the Reference Court, relying upon the decision in Land Acquisition Reference Case No. 1205 of 1998, exh. 19, where Rs.30/ was awarded per sq. mtr. where, Section 4 Notification was published on 23/09/1984 whereas, in the case on hand, Section 4 Notification is issued on 26/04/1999, granted Rs.124/ per sq. mtr., which is erroneous, and even considering aforestated exh. 19 and considering 10% increase per year, Rs.75/ per sq. mtr. would be the reasonable compensation and Rs.124/ is as awarded by the Tribunal is on a much higher side and submitted that Rs.51/ per sq. mtr. would be the just and proper compensation over and above what was granted by the Special Land Acquisition Officer.
4. Per contra, the learned advocate appearing for the respondent relied upon the award passed in Land Acquisition Reference Case Nos. 5383 of 2003 and 5384 of 2003, which is not exhibited before the Reference Court. Relevant para 15 of same is extracted hereunder:
15. From the other side no iota of evidence is put on record revealing the facts as to on which date the claimants were served with the written intimation in regard with declaration of award coupled with the copy of award, so that the direct or the constructive knowledge of the claimant Page 4 of 8 HC-NIC Page 4 of 8 Created On Thu Aug 06 01:05:47 IST 2015 C/FA/388/2010 JUDGMENT regarding the point of limitation can be easily calculated. Equally acquiring agency has not disputed the point of limitation and hence, I have not dealt with the same nor any Issues to that effect is framed and settled accordingly.
It is undisputed fact that LAQ No.: 935/96M proceeded with for which necessary notification under Section 4 is duly published. The claimants are claiming Rs.1000=00 and Rs.110=00 respectively per square meter as a market value as against that they have been paid Rs.18=50 paise per square meter, which obviously appears very unfair and unjust compensation which does not call any additional evidence to discharge the initial burden of proof as to how the amount paid by the land acquisition officer being unfair, simply for the reason that if we go to purchase handkerchief of cotton one has to spent minimum Rs.15/ per square meter. As against that the claimants before me have lost their valuable piece of land against their desire. It is out experience that day by day price of the agriculture land is going up at a rocket speed against fast falling purchasing power of money there is an acute scarcity of the agricultural land with this back ground the entire matter is required to be evaluated. The claimants have placed evidence on the point of potentially of their land by stating their land is having irrigation facilities for which revenue abstract is put on record. Learned Advocate M/s. Patel have put up great weight on previous judgment. So it is needless to discuss the potential evidence in detail. It is further stated that judgment of the same Village Nani Kadi (Jaydevpura) is produced at Exh.: 14 where under the market value is assessed to the extent Page 5 of 8 HC-NIC Page 5 of 8 Created On Thu Aug 06 01:05:47 IST 2015 C/FA/388/2010 JUDGMENT of Rs.30=00 per square meter for which a preliminary notification is dated 23.09.1984 whereas corresponding one is dated 23.04.1999, thus, there is a clear time gap of 14 years and 07 months i.e. 15 years. Under the previous judgment the market value of the land was determined to extent of Rs.30=00 Ps. Per square meter; so where the claimants are not coming with the sale transaction the market value is fixed under the previous judgment same village to the extent of Rs.30=00 per square meter. The same can be taken as base for awarding compensation in the present reference also. So year to year 10% price rise should be awarded as the material factor for considering the market value prevalent on the date of publication of notification under Section 4 of the Act for which a case of Special Land Acquisition Officer Vs. Motibhai Mohanbhai reported in 1997 (2) GLH:
773. So considering the time gap the claimants are entitled to get Rs.125=24 paise as market value as against that they have been paid Rs.18=50 Paise, per square meter, so the claimants are clearly entitled to get additional compensation of Rs.106=74 per square meter, which figure can be rounded off as Rs.107=00 per sq. mt, for the sake of convenience. It is pertinent to note here that, the claimant of LAR No. 5384/03 has claimed compensation at the rate of Rs.110=00 only, therefore, he is entitled to get additional compensation of Rs.92=00 (Rs.110=00 less Rs.18=50 received) only, as this Court cannot award more compensation that, what is claimed by the claimant in the reference application.
5. We have heard the learned advocates for the respective Page 6 of 8 HC-NIC Page 6 of 8 Created On Thu Aug 06 01:05:47 IST 2015 C/FA/388/2010 JUDGMENT parties and perused the documents on record. The document, which is sought to be relied upon by the learned advocate appearing for the respondents is not exhibited before the Reference Court. We are of the opinion that merely because the appellant ONGC has not challenged the same before the appropriate forum, the same is not binding to us. In the facts of the case, keeping in mind 10% increase per year, the contention of the learned advocate appearing for the appellant is required to be considered and if it is considered, Rs.75/ per sq. mtr. would be the just compensation. The Special Land Acquisition Officer has awarded Rs.24/ per sq. mtr. and hence, in view of the aforesaid, the respondents are entitled for additional compensation @ Rs.51/ per sq. mtr.
6. For the foregoing reasons, present appeal is hereby partly allowed and it is held that the respondents are entitled to additional compensation @ Rs. 51/ per sq. mtr.
i.e. Rs.75/ in total. It is further held that the interest is awarded from the date of award under Section 11. The excess amount lying with the Reference Court shall be refunded to the appellant. No order as to costs."
4. Since the acquired lands are situated adjoining to Village : Nani Kadi and have the same potentiality, the aforesaid decision could be considered as comparable for assessing the market price of acquired lands. In that case, the Notification u/s.4 was published on 26.04.1999 whereas, in the present case, it was published on 25.01.2000. Therefore, there shall be an appreciation of 05% in the market price of acquired lands. However, since Page 7 of 8 HC-NIC Page 7 of 8 Created On Thu Aug 06 01:05:47 IST 2015 C/FA/388/2010 JUDGMENT the claimants have not filed any crossobjections, the compensation awarded by the reference Court is not disturbed. Insofar as the rate of interest is concerned, the same shall be payable from the date of award passed u/s.11 of the Act. The appeal stands allowed to the aforesaid extent. No order as to costs. R & P, if lying here, be sent to the reference Court concerned forthwith.
(K.S.JHAVERI, J.) (G.B.SHAH, J.) Pravin Page 8 of 8 HC-NIC Page 8 of 8 Created On Thu Aug 06 01:05:47 IST 2015