Gujarat High Court
Naginbhai vs Special on 6 October, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/6518/2010 35/ 35 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6518 of 2010
With
SPECIAL
CIVIL APPLICATION No. 13293 of 2010
To
SPECIAL
CIVIL APPLICATION No. 13325 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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NAGINBHAI
AMBALALBHAI PATEL - Petitioner(s)
Versus
SPECIAL
LAND ACQUISITION OFFICER & 2 - Respondent(s)
=========================================================
Appearance
:
MR
BS PATEL for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
2.
MRS MAUNA M BHATT for Respondent(s) : 2,
IN RESPECT TO SCA
NO. 6518 OF 2010 WITH SCA NO. 13293 TO 13302 OF 2010, MR AL SHARMA
AGP for Respondent(s) : 3,
IN RESPECT
TO SCA NO. 13303 TO 133313 OF 2010 MS JIRGA ZAVERI AGP FOR RESPONDENT
(S) : 3,
IN RESPECT
TO SCA NO. 13314 TO 13325 OF 2010 MR AMIT PATEL AGP FOR RESPONDENT
(S) : 3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 06/10/2010
ORAL
JUDGMENT
Heard learned advocate Mr. BS Patel on behalf of petitioners. The main SCA no. 6518/2010 filed by one petitioner Naginbhai Ambalalbhai Patel challenging award passed by 5th Additional District Court, Baroda in Land Reference case no. 46/2003 and other matters of 106 applicants. Therefore, subsequently one page petition was filed as permitted by this Court by order dated 22/9/2010. Therefore, except SCA no. 6518/2010, rest of matters are being one page petition.
Learned AGP Mr. AL Sharma is appearing on behalf of Special Land Acquisition Officer and learned senior advocate Mr. MR Bhatt with learned advocate Ms. MM Bhatt appearing for respondent no. 2. The affidavit in reply is filed by respondent no. 2 page 103 dated 15/7/2010. No rejoinder is filed by petitioner and no reply is filed by respondent no. 1. In group of petition, order passed by 5th Additional District Court at Baroda in Reference Application as per section 10 subsection 2 of Petroleum and Minerals Pipelines (Acquisition of Right of Users) Act, 1962 dated 15/5/2009 is under challenged in group petitions. The Additional District Court, Baroda has partly allowed an application made by petitioner. The market value of land belong to applicants acquired as right of users is fixed Rs. 7,25,000/- per Hector on the date of notification under section 3(1) of Act. The Competent Authority has been directed to give additional compensation of land acquired as Right of Users as per market value fixed by Additional District Court, Baroda along with interest at the rate of 6% per annum from date of application till realization of awarded amount. The applicants are directed to pay Court fees according to Court Fees Act on the additional amount of compensation as per this order on or before 30/6/2009. The deficit court fee is to be deducted from awarded amount if not paid earlier. The order regarding disbursement or otherwise will be made later.
The brief facts of present petition as per list of events are as under:
The petitioners are farmers and having land bearing survey no. 215, situated in sim of village Asoj, District Vadodara, admeasuring 0-27-62 HRA and respondent no. 1 who is Special Land Acquisition Officer of Indian Oil Corporation Limited (IOCL) Government undertaking and respondent no. 2 is Manager of IOCL. On 6/11/1999 Notification under section 3 of Petroleum and Minerals Pipelines (Acquisition of Right of Users) Act, 1962 had been issued. The notification under section 6 of Pipelines Act has been published on 21/3/2000 and respondent no. 1 and 2 had decided price of land per Hector Rs. 5,25,000/- for irrigated land and Rs. 3,90,000/- for non irrigated land considering Jantri price of village Asoj. Thereafter, petitioner with all farmers made an application for enhancement of compensation under section 10(2) of Petroleum Act before District Judge, Baroda. The sale deed with another Government Enterprise Company, copy of index shown as respondent no. 1 and 2 were paying rent in the year 2000 and award for land acquired under Land Acquisition Act, 1894 had been pointed out to District Court as table shown as under:
Year Notification/ award Annexure Village Reason (Type) Price (Rs.) Per Sq. Mtr.2002
G Asoj Sale deed 294/-
1995/2007 H Asoj Judgment 140/-
2000I Asoj Rent 400/-
2000J Alindra Rent 600/-
Learned advocate Mr. BS Patel submitted that in present group of petitions, Annexure A order passed by District Court, Baroda is under challenged on the ground it contrary to price/rent given by Company or fixed by Competent Court in other land Acquisition matters. Therefore, present petition is filed by petitioner. The petitioners have produced copy of order passed by Competent authority dated 13/9/2000 by way of draft amendment, which was allowed and annexed to Annexure K. Accordingly, prayer clause is also amended in para 10(AA). In amended prayer as referred above, petitioner demanded compensation at the rate of Rs. 10,50,000/- per Hector to the claimant.
Learned advocate Mr. Patel submitted that District Court, Baroda has committed gross error in not considering evidence which are on record and finding given by District Court, Baroda is baseless and perverse. He submitted that while deciding reference, District Court has not appreciated relevant provisions of section 10 subsection 3 and 4 of Petroleum Act. He submitted that as per Section 10 subsection 3(i)(ii)(iii), which required to be considered for compensation for removal of tress and standing crops, if any on the lands while exercising power under section 4, section 7 and section 8 and also to consider temporary severance of land under which pipeline has been laid from other lands belonging to or in occupation of such person or any injury to any other property whether movable or immovable or earning of such person caused in any other manner. Provided that in determination the compensation no account shall be taken of any structure or other improvement made in land after date of notification under subsection 1 of section 3.
He submitted that District Court, Baroda has not considered that the livelihood of petitioner is agriculture and petitioners are not having any alternative source of income. Therefore, it violates Article 19 of the Constitution of India. The order passed by District Court, Baroda is non Speaking Order and also it violates basic principles of Natural justice. Therefore, Article 14 of Constitution of India is violated by District Court, Baroda. The Jantri price has not been considered while deciding reference which is arbitrary and mutual understanding between claimant and respondent no. 1 and 2 can not be accepted as mutual understanding as it was between claimant of Dumad village and concern Land Acquisition Officer. Therefore, order passed by District Court, Baroda has suffers from patent irregularity and even otherwise, mutual understanding ought not be considered by District Court, where question of livelihood at large number of farmers are in trouble due to industrialization.
Learned advocate Mr. Patel also submitted that respondent no. 2 company, for thrice for digging work from date of notification upto 2004, has been used land in question and due to continuous digging work at the place upon land of petitioner, fertility of land has been reduced. Therefore, small or large cultivation is not possible due to said pipelines, even respondent no. 3 would not grant N.A. Permission to land. Hence, in future there will be a heavy irreparable loss caused to petitioner. Though, specific submission was made, same has not been considered by District Court. The table which has been given factual aspect which required to be considered under section 10 subsection 3 of Petroleum Act as mentioned in ground H which is also relevant, therefore, quoted as under:
(h) The petitioner submits that order at Annexure A to the petition is passed without considering Section 10(3) of the Petroleum Act and without considering the following table which manifest the factual aspect as submitted hereunder:
Year Notification/ award Annexure Village Reason (Type) Price(Rs) Per Sq. Mtrs 2002 G Asoj Sale deed 294/-
1995/2007 H Asoj Judgment 140/-
2002I Asoj Rent 400/-
1999/2009 A Asoj Judgment 72.50/-
Hence, in view of the aforesaid table, the order at Annexure A to the petition is arbitrary and in violation of articles 14 and 16 of the Constitution and the lowest rate of the land had been given to the claimants which is anytime unjust and improper and result of pick and choose policy.
Learned advocate Mr. Patel submitted that order passed by District Court, Baroda is arbitrary and violation of Article 14 and 19 of the Constitution of India and lowest rate of land has been given to claimants, which is unjust and improper and result of pick and choose policy accepted by District Court, Baroda. The rate of 6% interest per annum is quite low as compared to loan given by Nationalized Bank. The District Court, Baroda has not considered quantum of rent paid by respondent company to owners of land in the year 2000, which has been reflected in aforesaid table. Therefore, method of computation adopted by District Court, Baroda is contrary to decision of Apex Court in case of Koyappathodi M. Ayisha Umma Vs. State of Kerala reported in AIR 1991 SC 2027. The compensation, which has been worked out by District Court, Baroda is without any basis, 40% deduction has been carried out in market value of Rs. 11,62,000/- (as of year 2002) in para 22 of judgement, which is unjust, improper and arbitrary. By amending prayer clause, petitioners are demanding compensation at the rate of Rs. 10,50,000/- per Hector.
The learned senior advocate Mr. MR Bhatt submitted that it is not case of Acquisition of land but merely acquired right of user in land in question. The contentions raised by petitioner's Advocate based on as if land in question is acquired by company. The petitioners are entitled to cultivate their land without damage caused to pipeline laying in land in question. He submitted that District Court has logically and rationally after application of mind considered exh 35, 41 and 42 and then works out reasonable market price while deducting 40% reduced for a period of three years as discussed in para 22 of Award. He also relied upon factual aspect as discussed and narrated in Affidavit in reply, by respondent company. He also raised contentions that this Court having very limited jurisdiction under Art. 227 of Constitution of India not to re-appreciate evidence which already appreciated by District Court, Baroda. He relied upon recent decision of Apex Court in case of State of Haryana & Ors Vs. Manoj Kumar reported in 2010 AIR SCW 1990, where para 22 to 29 are relied and relevant therefore, quoted as under:
22. The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the courts below work within the bounds of their authority.
23. More than half a century ago, the Constitution Bench of this court in Nagendra Nath Bora and Another V. Commissioner of Hilss Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
24.This Court placed reliance on Nagendra Nath's case in a subsequent judgment in Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895. The Court observed that jurisdiction conferred under Article 227 is not by any mens appellate in its nature of correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendent to be used to keep them within the bounds of their authority.
25.This Court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus Vs. Mohm. Mustaqim & Others (1983) 4 SCC 566 : (AIR 1984 SC 38).
This Court observed as under:-
The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority, and not to correct an error apparent on the face of the record, much less an error of law, for this case there was, in our opinion, no error on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. If will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.
26. This Court again clearly reiterated the legal position in Lamikant Revchand Bhojwani & Another Vs. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The court again cautioned that the High Court under Article 227 of the Constitution can not assume unlimited prerogative to correct all species of hardship or wrong decisions.
It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
27. A three Judge Bench of this Court in Rena Drego (Mrs). V. Lalchand Soni & Others (1998) 3 SCC 341 : (AIR 1998 SC 1990 : 1998 AIR SCW 1840) again abundantly made it clear that the High Court can not interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It can not correct mere errors of fact by examining the evidence and re-appreciating it.
28.In Virendra Kashinath Ravat & Another V. Vinayak N. Joshi & Others (1999) 1 SCC 47 : (AIR 1999 SC 162 : 1998 AIR SCW 3521) this Court held that the limited power under Article 227 can not be invoked except for ensuring that the subordinate courts function within its limits.
29. This Court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 can not be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merits.
As against that, affidavit in reply is filed by respondent no. 2, by one Mr. B. Arunkumar, Deputy General Manager of HR which annexed at page 103, para 3 to 6 are relevant therefore, quoted as under:
3. At the outset, I humbly submit that the petitioner has challenged the judgment rendered by the learned 5th Additional District Judge, Vadodara and has prayed for higher compensation. In this connection, I humbly submit that by the present petition, the petitioner seeks re appraisal of evidence, which has been undertaken by the learned District Judge. I humbly submit that in a petition under Articles 226 and 227 of the Constitution of India, such a request for re-appraisal of evidence is not maintainable and on this limited ground alone, the petition requires to be summarily rejected.
4. I submit that the subject land was acquired for 60 mts. right of user under Petroleum and Minerals Pipelines (Acquisition of Right of User) Act, 1962 (hereinafter referred to as, the PMP Act ) for laying of pipelines for evacuation of petroleum products from Gujarat Refinery to Marketing Terminal, Dumad. I submit that notification under Section 3(2) of the Act was published on 06/11/1999 and notification under section 6 was published on 21/3/2000. The Land Acquisition Officer, after considering the submissions as also considering the market value of the land, determined the same @ Rs. 2.72 lac per hector to Rs. 8.50 per hector. At the instance of the petitioner, Reference was made to the District Court. I submit that the District Court under the judgment dated 15/5/2009, enhanced the market value of the land to Rs. 7.25 lac per hector. I submit that as can be seen from the various sale instances analyzed by the District Court, the said Reference Court has arrived at finding of fact that the market value of the land, which was acquired for right of user, was Rs. 7.25 lac per hector on the date of the notification under Section 3(1) of the Act. It is also significant to submit that the District Court has also taken note of the fact that the competent authority had fixed the market value on the basis of Jantri of the concerned villages. The learned District Judge has analyzed the evidence, viz., other sale instances produced at Exh. 35, 41 and 42 and has thereupon held that the market value of the land should be fixed at Rs. 7.25 lac per hector. I submit that no error in the decision making process has been substantiated by the petitioner and therefore also, the petition may kindly not be entertained.
5. I submit that reliance on the sale instances at Annexures G, H, I and J is wholly misplaced. I submit that under the PMP Act, the land is not acquired or transferred on outright basis, but only right of user is acquired. The concerned owner/petitioner would be entitled to carry on the cultivation without damaging the pipelines laid under the land. I submit that in support of the assertions. The petitioner has mainly relied upon the four sale instances. These sale instances are not comparable in view of the following reasons:-
(a) Sale Instances at Annexure G:-
This document is with regard to the sale of a small piece of land, viz 1580 sq. mtr. for a consideration of Rs. 4,64,500/-. The said sale is dated 07/02/2002 whereas Section 3(1) notification in the instance case is of 1999 and therefore, not comparable. Further, the said transaction is with regard to outright sale of the land whereas in the instance case, only right of user has been acquired. It is further submitted that the plot of land purchased by M/s. IBP is on the road side whereas the present lands for ROU are in the interior area adjacent to village Asoj/Dumad at a distance of more than half Km apart.
(b)Sale instance at Annexure- H:-
This is a copy of judgment rendered by the learned 6th Additional Senior Civil Judges(SD) at Vadodara in Land Reference Cases Nos. 1170/1998 and connected cases. In those cases, notification under section 6 of the Land Acquisition Act was published on 06/03/1996. The land was acquired for the purpose of construction of new Terminal Station for truck loading facility. Under the said acquisition, 448 acres of land was acquired under the land acquisition process. The said lands are not in immediate proximity of the ROU lands. Further the purpose of acquisition in the said reference proceedings was for permanent use and land for industrial /commercial purpose (NA purpose) whereas in the present case, only right of user permission has been taken and the land continues to be used by the concerned farmers of agricultural purposes.
(c) Instance at Annexure I:-
The transaction quoted as per Index II is for transfer of land by way of lease between two private individuals in respect of very small piece of land admeasuring 560 sq. ft. The said instance is not comparable as in the said instance, there was transfer by way of lease whereas in the instance case, only ROU permission has been taken. Further the said instance is of 24.10.2001 whereas in the present case, notification under section 3(1) was issued in the year 1999.
(d) Instance at Annexure J:-
The transaction quoted as per Index II is regarding lease for small piece of land. The said transaction is entered into between GIDC and one Private Limited Company for rent @ Rs. 6 per sq. mtr. per annum. The said instance is absolutely not applicable since the lands of GIDC are in possession of the lessee whereas in the case of ROU, land owner and can be utilized for agricultural purpose.
6. I submit that all the sale instances have been duly considered by the District Court while rendering the stated judgments.
The competent authority has passed an award on 13/9/2000, which is at page 91 exh 31, Annexure K while exercising power under section 10 of Petroleum Act and in matter of payment of compensation for land in relation to operation to be carried out under section 7, Section 8 and Section 9 of Petroleum Act. The purpose or introduction is relevant, therefore, quoted as under:
Introduction:-
Gujarat Refinery based at Vadodara is a unit of Indian Oil Corporation Ltd engage in refining the crude oil and marketing various petroleum products like M. S. (Motor Spirit), H.S.D. (High Speed Diesel), L.P.G. (Liquefied Petroleum Gas), (A.T.F.) Aviation Turbine Fuel, S.K. (Superior Kerosene), etc. Gujarat Refinery has planned to shift its tank farm to village Dumad to de-congest its loading operation and also from the safety and security point of view. For this purpose, it was found necessary to lay underground cross country petroleum product pipelines up to take farm for transportation and storage of petroleum products to shift for truck loading and wagon loading facilities in Dumad at Vadodara Savli High way.
In pursuance of Clause (a) of Section 2 of said Act, I have been authorized to perform the functions of the Competent authority under the said Act within the territory of the State of Gujarat by Central Government vide their Notification No. S. O. 1343 dated 15th May 1999 published on the page 3037 of the Gazette of India Part II Section 3(II).
The Right of User in Land (hereinafter referred as ROU) of village Asoj, Taluka Vadodara, District Vadodara of Gujarat State as described in schedule A has been acquired for Gujarat Refinery (IOCL Vadodara) for laying underground cross country petroleum pipelines for transportation of various petroleum products to Dumad Tank Farm at village Dumad of Taluka & District Vadodara.
The geographical features of land shows that it is a large village situated as Baroda Savali State Highway and land of those village is black cotton soil/ Goralu, in which major crops grown are Tobacco and Cotton. The type of land is Jarayat. This village is covered under Vadodara Uraban Development Authority's Geographical Limit. This village is situated 15 km away from Taluka headquarter and is on the Vadodara Savali State Highway. It is 1 km away from nearest Pilol Railway Station on Vadodara Godhra Broad Gauge line. The total population of this village is 3000. In demographic feature of village major caste composition are Patel, Harijans, Gohils, Patanwadias. This village is having primary and secondary schools and private and Government Hospitals. This village is also having all basic amenities like Electricity, Drinking water and Telephone lines. Milk Co operative Societies and other Co-operative Societies are contributing to the development of the village. Some of land of this village is irrigated. The farmers those who have raised objection were given opportunity being heard in person. Thereafter, it has been decided by Competent authority. In respect to trees crops and other damages as execution work has not yet started actual damage could not be assessed but at the time of execution, Acquiring body will have to compensate damage caused to trees, crops and other properties. In respect to ownership right, there is no controversy between parties. On behalf of Acquiring Body, Engineer In charge of this project remained present during proceeding of hearing and Company has made no representation and agreed that it will accept compensation decided by Competent authority as per legal provision. The valuation of land has been determined for compensation as discussed by Competent authority page 97 item no. 13 as under:
13. VALUATION OF LAND (DETERMINATION OF COMPENSATION) The Sub section 4 of Section 10 of Petroleum and Minerals pipeline (Acquisition of Right of User in Land) Act, 1962 deals with the compensation payable for obtaining the ROU in land. As per this provision, the compensation is to be considered at 10% of market value of the land for Acquisition of ROU in land. The market value further to be determined on date of notification under Section 3(i) of the said Act. The compensation so determined is payable by Gujarat Refinery (IOCL, Vadodara) to whom the ROU has been vested by Government of India while issuing notification under Section 6(i) of the said Act.
There are number of ways to determine market value of the land. But following 4 methods are mainly used for determining the market value of the land. (1) On the basis of rental value. (2) On the basis of multiples of land revenue. (3) On the basis of net income or yield. (4) On the basis of registered sale instances. Rental value will not give us correct picture as land revenue had been fixed long back. Net income or basis of yield can provide good base for determining the market value of the land, but it is found that farmers are not habituated to maintain exact record input and output. In the hearing also, the farmers could not produce the exact data of the yield per acre and the income they are generating out of it. Again, if at all it is taken a base, it is likely that market value may differ from crop to crop and from farmer to farmer. So it may again create confusion. Usually for the determination of market value, the method of collecting registered sale deeds/ instances is very popular but at the same time it is found that people have tendency to save stamp duty by undervaluing the land. To overcome this problem, Government of Gujarat has fixed the village wise proposed land value for different categories of land. To great extent it gives correct picture of market value of land.
Average of 5 year registered sale statistics prepared and submitted by village Talati shows Rs. 1,19,128 rate per hector for non irrigated land. While Jantri (schedule of rates fixed by the Government of Gujarat for the purpose of Stamp Duty) for the village Asoj shows rate of Rs. 5,25,000/- for irrigated land Rs. 3,90,000 for non irrigated land near the village.
As per the schedule of rate entire land of the village is divided into three broad categories.
Category No. 1 Proposed Rate Per sq. mtr A. Main Village Land 90 B. Area adjacent to main 70 village C. For non agricultural plots 150 Category No. 2 Proposed Rate Per Hector A. Irrigated land close to village 5,25,000 B. Irrigated land far from village 4,90,000 C. Remaining non irrigated land 4,55,000 Category No. 3: Proposed Rate per Hector A. Non irrigated land close to village. 3,90,000 B. Non irrigated land far from village. 3,60,000 C. Remaining non irrigated land. 3,30,000 It
is found that the proposed land value fixed by Government in the form of Jantri it is highest among other data available for determining market value of land. So the value of Jantri has been taken as a base of market value after thorough thinking.
In light of aforesaid factual back ground as narrated by this Court from order passed by Competent authority, following conclusion has been arrived by Competent authority in para 14 page 100, is quoted as under:
14. IN CONCLUSION:-
I THEREFORE DECLARE UNDER SECTION 10 OF THE SAID ACT THAT:
A. The area finally notified under Section 6(i) of the said Act be treated as the area of the land for acquisition of ROU for the purpose of awarding compensation.
B. The amount of compensation, payables for each survey number are computed and shown in Schedule B attached herewith. The amount payable for each such number is rounded to be higher fifty for convenience of payment and accounting.
C. The total amount of compensation for land against ROU in village Asoj of Taluka and District Vadodara is Rs. 2,07,400 (Rupees two lakhs seven thousand four hundred only) as shown in Schedule B attached herewith.
D. The AB (i.e. Gujarat Refinery) will have to deposit the amount of compensation in account of competent authority within 21 days of this award. As shown in the schedule B. E. The competent authority reserves the right to alter any of the content regarding survey number or area of land or the amount to be paid as compensation or any other matter based on facts as are detected or brought to notice after declaration of awards.
Any Party aggrieved by this award, pertaining to the amount of compensation shall have an option to apply to district judge as per provisions of Sub section 2 of the Section 10 of the said Act.
The total compensation which has been worked out by Competent authority comes to Rs. 2,07,400/- to Rs. 5,25,000/- after considering categories wise for land against ROU in village Asoj and Taluka and District Baroda as shown in Schedule (B) attached with order. The petitioners are aggrieved by aforesaid order passed by Competent authority and approach to District Court, Baroda under section 10 subsection 2 of Petroleum Act. After considering submission made by respective parties, District Court, Baroda has considered in detailed demand made by petitioner about Rs. 10,00,000/- per Hector and also considered oral evidence led by both side and also considered documentary evidence produced by both parties including sale deed of relevant period. The District Court, Baroda has considered exh 35 being a copy of award passed by Special Land Acquisition Officer 1, Baroda in Compensation Case no. 2/95/Dumad dated 6/8/1998 and exh 41 and 42. The index no. II and copy of sale deed of Block no. 192 of Moje Asoj.
The District Court, Baroda has appreciated documents exh 35 being award as referred above and on that basis market price or value of land, which was in dispute has been decided. For that, detailed reasoning is given by District Court, Baroda in para 19 and 20 which are quoted as under:
19. While going through the award produced at Exh. 35, it can be said that this is the most relevant document for fixing market value of the land under dispute. The land under dispute are also situated at Dumad Village, Tal and Dist. Vadodara and the award produced at Exh 35 is of land situated at Dumad village, Tal. and Dist. Vadodara.
The land of disputed award and land of ward Exh. 35 are situated on Vadodara Savli State high way and in the near vicinity. The fertility and quality of the land is also similar in nature and therefore, the market value fixed by the special Land acquisition officer as per Award Exh 35 can be taken as base for fixing market value of the land of disputed award. Secondly, the Acquiring body of the land is Indian Oil Corporation, Vadodara and acquiring body of disputed land is also IOC Ltd. The award has been passed on the basis of the mutual understanding of land owners and IOC ltd. Hence, when the acquiring body, IOC had consented to fix the market value of land of Dumad @ Rs. 7,62,000/- per Hector in the year 1998 and in that case, a Notification under Section 3(1) was published in the year 1995. So, it can be said that the market value fixed by Special Land Acquisition Officer on the basis of the mutual understanding by the land owners and acquiring body was 23/11/1995. Therefore, when Rs. 7,62,000/- per Hector, then it can be said that the market value of the land of villages Manjusar, Asoj, Alindra and Sisva was also Rs. 7,62,000/- per Hector.
20. As per the award Exh. 35, the market value of the land on 23rd November, 1995 was Rs. 7,62,300/- including 30% solatium as per Section 23(i)(a) of the Land Acquisition Act, 1994. But, the rate fixed by the Special Land Acquisition Officer on the basis of the mutual understanding of the parties was including 30% consolation and 12% interest for first year as per the provisions of Section 23(2) and 23(1-A). So, while fixing the market value on the date of 23rd November, 1995, it is necessary to deduct 40% from the said price; and therefore, if it is computed in this way the market value on 23rd November 1995 could be Rs. 4,58,000/- per Hector; but the land of disputed award was acquired for ROU in the year 1995, that is, after 4 years. Hence, as per the settled principles for fixing market value. It is necessary to give appreciation of the rate @ 10% per year; and therefore, it is computed in this way; the market value on 05.11.1999 could be Rs. 7,62,000/-. So, on the basis of the award produced at Exh 35, the market value of the land disputed award would also be Rs. 7,62,000/- on the date of notification under section 3(1) of the Act.
The further discussion relying upon exh 35 is in para 23 and 24 of award, which are quoted as under:
23. Thus as pet the award produced at Exh 35, the market value of the land for the villages of the disputed award can be fixed as Rs. 7,64,000/-
per Hector for the period of November 1999 and on the basis of the sale deed produced at Exh 41, the market value of the land of villages of disputed award would be Rs. 7.00 Lacs per Hector. Therefore, the average market value is fixed as per the market value fixed on the basis of the documents Exh 35 and 41, which would be just and proper. So, on that basis, it can be said that average market value of the land of villages of disputed award would be Rs. 7,25,000/- per Hector in November, 1999, that is on the date of notification under section 3(1) of the Act.
24. The applicants have also relied on other documents evidence including the Index No. 2 of some lands. But, most of the documents are related to industrial plots or non agricultural lands; and therefore, according to me, the most relevant and reliable documents are only Exh. 35, 41 and 42. So except theses documents, there is no need to consider other documentary evidence for fixing the market value of the land under disputed award.
The documents, which have been relied by petitioners including index no. 2 of same land but according to District Court, Boroda most of documents related to industrial plots or non agricultural land. Therefore, District Court, Baroda has appreciated documents from award exh 35, 41 and 42. In respect to contention raised by learned advocate Mr. Patel that District Court, Baroda has not properly appreciated provision made under section 10 subsection 3(i)(ii)(iii), where compensation is required to be paid or calculation is necessary for damages of crops, trees and construction etc. The relevant discussion made in para 27 and 28 which are quoted as under:
27. As per the provisions of the Act, the District Judge has jurisdiction to pass appropriate order regarding compensation only after the award of competent authority. In this case, the competent authority has only awarded compensation of land acquired as Right of Users. It is also mentioned in the award that the work of laying pipeline etc has not yet started. Therefore, the compensation for damages of crops, trees, constructions, etc, will be determined later. Hence, in this reference, there is no need to consider regarding the compensation about the damages to the crop, etc.
28. It is also contended by the applicants that the competent authority has not given damages of crops and more than twice the work of laying pipe line etc. has been made in the land of the applicants. But such type of contentions can be treated as irrelevant to decide these Reference Applications due to the aforesaid reasons.
In light of aforesaid reasoning given by District Court, Baroda enhancing compensation Rs. 7,25,000/- while keeping in mind exh 35, 41 and 42. The demand of Rs. 10,00,000/- per Hector made by petitioner is not accepted by District Court, Baroda. For that, reasons have been given by District Court that most of documents produced by petitioners undertaking index no. II of same land but they are related to industrial plot or non agricultural land which was not comparable land. Therefore, market price or valuation of land in question has been considered by District Court, Baroda after considering relevant documents exh 35, 41 and 42. The Market Value of land in question is required to be considered on the basis of date of notification issued by Central Government i.e. 6/11/1999. Any subsequent documents suggested market price or value of nearby land could not be taken into account because any subsequent documents from 6/11/1999 then it was necessary to deduct at least 40% from base price while considering documents of sale deed produced at exh 42 which is of 2002. Therefore, contention raised by learned advocate Mr. Patel that 40% deduction is not proper can not be accepted because detailed reasons have been given in para 22 of Award while considering sale deed dated 7/2/2002 where per Hector price fixed Rs. 11,60,000/-. After deducting 40% keeping in mind three years difference between two transactions date of notification dated 6/11/1999 then Market value of land in question comes to at least more than Rs. 7,00,000/- per Hector in November, 1999.
Therefore, contention raised by learned advocate Mr. Patel can not be accepted and District Court, Baroda has rightly awarded amount of compensation instead of fixing market price or value different from each land of different villages because respondent no. 2 company having right of User of land which has been acquired under Notification dated 6/11/1999 are situated in near vicinity and having equal fertility and quality. Therefore, District Court, Baroda has fixed same market value of all lands of five villages. For that, also District Court, Baroda has not committed any error.
In short, compensation which has been worked out by Competent Authority has been rightly enhanced while considering exh 35, 41 and 42 to Rs. 7,25,000/-. The District Court Baroda has also rightly rejected demand made by petitioner claiming Rs. 10,00,000/- amount of value of land in question per Hector because there was no justification or relevant documents produced by petitioner before District Court, Baroda which established market value of land in question Rs. 10,00,000/-. Because in the year of February 2002, per Hector market value or price has been fixed Rs. 11,60,000/- but this being a case of 6/11/1999. Therefore, 40% deduction 10% reduced for each year is necessary from base price, which has been properly calculated by District Court. In absence of cogent evidence, not produced by petitioners before District Court, Baroda, according to my opinion, District Court Baroda has rightly decided matter for determining compensation of land in question where notification under section 3 was published on 6/11/1999.
Now, it is necessary to consider section 10 subsection 3(i)(ii)(iii), which is quoted as under:
10. Compensation (1) (Where in the exercise of the power conferred by section 4, section 7 or section 8 by person, any damage, loss or injury is sustained by any person interested in the land under which the pipeline is proposed to be, or being, or has been laid, the Central Government, the State Government or the Corporation as the case may be, shall be liable to pay compensation to such person for such damage, loss or injury, the amount of which shall be determined by the competent authority in the first instance.
(2) If the amount of compensation determined by the competent authority under sub section (1) is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge.
(3) The competent authority or the District Judge while determining the compensation under sub section (1) or subsection (2) as the case may be, shall have due regard to the damage or loss sustained by any person interested in the land by reason of -
(i)the removal of trees of standing crops, if any, on the land while exercising the power under section 4, Section 7 and 8;
(ii) the temporary severance of the land under which the pipeline has been laid from other lands belong, to or in the occupation of, such person; or
(iii)any injury to any other property, whether movable or immovable, or the earnings of such person caused in any other manner;
In view of above referred provisions, learned advocate Mr. Patel rightly emphasized that no compensation has been awarded by District Court, Baroda for damage cause to crops, trees, construction etc. He submitted this aspect has been also considered by Competent authority page 96 para 7 whereas execution work has not yet started, actual damages could not be assessed but at the time of execution, Acquiring body will have to compensate damage caused to trees, crops and other properties. Therefore, right to receive compensation under section 10 subsection 3(i)(ii)(iii) has been kept open by Competent authority in its order dated 13/9/2000. Similarly that aspect has been also kept open by District Court, Baroda on the ground that work of laying pipelines etc is not yet started. Therefore, it will be determined later on. At this stage, while deciding references, there is no need to consider regarding compensation about damages caused to crops, trees, construction etc. The contention raised by petitioner that more than thrice work of laying pipelines etc has been made in land of applicants but no compensation has been worked out by Competent authority as well as District Court, Baroda. For that, it is open for petitioner to claim compensation for damages caused to crops, trees, construction etc and also damage caused to fertility of land is being reduced and also small or large cultivation is not possible due to said pipelines, which is adversely affect in granting N. A. Permission in favour of petitioners to land in question and in future also there will be heavy irreparable loss cause to petitioners.
According to my opinion, in light of observation made by Competent authority in item no. 7 as referred above and as discussed by District Court in para 27 and 28 as referred above, as and when work of laying pipelines etc has been completed, thereafter, it is open for petitioner to claim compensation for damages cause to crops, trees, construction, fertility of land and other damages or injury to any other property whether movable or immovable or construction of in any other manner by filing necessary application before Competent authority as required under section 10 subsection 1 of Petroleum Act. If petitioners are aggrieved by such order of competent authority, then it is open for petitioner to approach District Court, Baroda under section 10 subsection 2 of Petroleum Act claiming compensation as required under section 10 subsection 3(i)(ii)(iii) as referred above. This part has been kept open by this Court which can be claimed by petitioner after completion of work of laying pipelines in the land in question by respondent no.
2. According to my opinion except liberty is given by this Court, both authorities i.e. Competent Authority and District Court have rightly examined matter. The District Court has rightly enhanced amount of compensation while considering exh 35, 41 and 42 as referred above and detailed reasons have been given by District Court, Baroda and after deducting 40% amount of market price of land arrived in the year 2002 it comes to Rs. 11,60,000/- exh 42 of sale deed produced by petitioner before District Court, Baroda. The District Court, Baroda has rightly considered date of notification 6/11/1999 and deducting 40% from Rs. 11,60,000/- then remaining amount comes to Rs. 7,25,000/- which has been rightly awarded being compensation for land in question where right of use has been acquired. The District Court, Baroda has also rightly rejected claim of Rs. 10,00,000/- per Hector demanded by petitioner because there was no sufficient evidence or cogent evidence produced by petitioner before District Court, Baroda. Therefore, District Court, Baroda has not committed any error in deciding reference by award dated 15/5/2009 and finding of fact which has been decided by District Court, Baroda is found to be legal and valid and can not consider to be baseless and perverse finding given by District Court, Baroda. This Court can not re-appreciate evidence which appreciated by District Court, Baroda while exercising power under Art. 227 of Constitution of India as per recent decision of Apex Court in case of State of Haryana & Ors Vs. Manoj Kumar reported in 2010 AIR SCW 1990 as per observation made in para 22 to 29 as referred above.
Hence, there is no substance in present group of petitions except keeping right open or liberty in favour of petitioners to claim compensation as required under section 10 subsection 3 as referred above for damage cause to crops, trees and construction or any kind of damage to movable and immovable properties of petitioners and earning of such person cause in any other manner by filing necessary separate application before Competent authority under section 10 subsection
1. Thereafter, petitioners are not satisfied then to approach District Court, under section 10 subsection 2 of Petroleum Act claiming compensation as per section 10 subsection 3 (i)(ii)(iii). Except that, there is no substance in present petition filed by petitioners. Therefore, each petition is accordingly dismissed subject to aforesaid liberty given by this Court.
(H.K.RATHOD, J) asma Top