Gujarat High Court
State vs Hiraben on 21 March, 2011
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
Gujarat High Court Case Information System
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FA/928/1995 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 928 of 1995
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
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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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STATE
OF GUJARAT - Appellant(s)
Versus
HIRABEN
WIDOW OF PRABHASHANKERDEVSHANKER & 4 - Defendant(s)
=========================================================
Appearance :
MS
SACHI MATHUR, ASST.OVERNMENT PLEADER
for Appellant(s) : 1,
MR
BG PATEL for Defendant(s) : 1,
None for Defendant(s) : 2 - 4,
4.2.1, 4.2.2,4.2.3 - 5, 5.2.1,5.2.2
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CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 21/03/2011
ORAL
JUDGMENT
The challenge in this appeal is to the common judgment and award dated 31.3.1994 rendered by learned District Judge, Sabarkantha at Himatnagar in land reference case Nos.391 to 438 of 1988.
It further transpires that the appellant preferred First Appeal Nos.928 to 975 of 1995 challenging the aforesaid common judgment and award. However vide order dated 1.12.2010, this Court (Coram: Hon'ble Mr.Justice K.S.Jhaveri) observed that F.A. Nos.929 to 975 of 1995 contained petty claim i.e. below Rs.1 Lac and observed that since the amount involved in those appeals were less than Rs.1 Lac, those appeals were ordered to be dismissed without entering into the merits and with a direction that the said order would not be treated as a precedent. Thus, F.A.Nos.929 to 975 of 1995 came to be dismissed at admission stage, whereas the instant appeal (F.A.No.928 of 1995) came to be admitted.
The instant appeal arises from the common judgment and award rendered by the reference Court, particularly in L.A.R.No.403 of 1988. Certain open lands, together with superstructure thereon, situated in village Delvada, Tal.Khedbrahma came to be acquired for public purpose of Dharoi canal. The notification u/s.4 of the Land Acquisition Act ('the Act', for short) came to be published on 14.3.1974 and the corrigendum was published on 17.10.1974. The notification u/s.6 of the Act was published on 17.10.1974. The Special Land Acquisition Officer conducted inquiry for ascertaining the market value of the open land as well as of the superstructure, which came to be acquired. Since the area of the superstructure was different and, therefore, so far as the land reference case No.403 of 1988 is concerned, the Special Land Acquisition Officer offered Rs.9291/- towards the compensation of the superstructure of the appellants-claimants acquired. The Special Land Acquisition Officer offered the compensation regarding the non-agricultural land @ Rs.3 per sq.mtr., for common plot @ Rs.2 per sq.mtr. and for open land Re.1 per sq.mtr. All the claimants, including the claimant in L.A.R.No.403 of 1988 felt that the compensation offered to them was highly inadequate and insufficient and, therefore, they applied for references and their references were numbered and registered as L.A.R. Nos.391 to 438 of 1988. Before the reference Court, about the compensation for superstructure, the claimants claimed the compensation @ Rs.400/- per sq.mtr., whereas about the open land, the claimants claimed compensation @ Rs.75 to Rs.80 per sq.mtr.
Since all those reference cases arose out of a common award passed by the concerned Special Land Acquisition Officer as well as since the properties came to be acquired under common notification u/s.4 of the Act, the reference Court consolidated all those reference cases and common evidence was recorded. Before the reference Court, claimants examined claimant Vatabhai Becharbhai at Exh.24, claimant Natvarlal Kanjibhai at Exh.30, claimant Vajabhai Naranbhai examined at Exh.31, claimant Jasubhai Menkabhai examined at Exh.32 as well as claimants examined a private valuer, namely, Bhagwandas Kantilal Desai at Exh.33. No more witnesses were examined by the claimants. The claimants relied upon certain sale instances of nearby village Radhivad as well of Khedbrahma town. During the course of evidence of the valuer, examined by the claimants, valuation reports came to be produced. On behalf of the opponent - State (the appellant herein), Dy.Engineer, namely, Kantilal Shivram came to be examined at Exh.71 and during the course of his evidence, valuation reports came to be produced from Exhs.72 to 98 as well as of schedule of rate at Exh.99.
After appreciating and evaluating the oral and documentary evidence adduced by both the sides, so also considering the submissions advanced on behalf of both the sides, the reference Court came to the conclusion that the sale instances of village Radhivad should be taken as a base for determining the market value of the open land acquired. Accordingly, the reference Court came to the conclusion that the amount offered by the Special Land Acquisition Officer by way of compensation of the open land was quite insufficient and inadequate and came to the conclusion that the claimants were entitled to recover just and fair compensation of their open land @ Rs.15 per sq.mtr. Regarding the compensation for superstructure, reference Court came to the conclusion that the claimants are entitled to get 20% rise in the amount already offered to them by the Special Land Acquisition Officer for their superstructure. This has given rise to this appeal.
Ms.Sachi Mathur, learned AGP for the appellant - State assailed the impugned judgment and award rendered by the reference Court and submitted that the reference Court committed serious error in relying upon the sale instance contained in the sale-deed, Exh.20, inasmuch as the sale transaction took place of the land, which was situated at village Radhivad and not in village Delvada itself. It is further submitted that to prove the sale instance, Exh.20, the claimants have neither examined the vendor nor the buyer of the property. It is, therefore, submitted that the reference Court erred in relying upon the sale-deed, Exh.20 and coming to the conclusion that the claimants were entitled to get more amount of compensation than what was offered to them.
6.1 Ms.Mathur, ld.AGP submitted that in the instant case on behalf of the opponent, Dy.Engineer came to be examined as witness, and through the Engineer, valuation reports were produced. In the impugned judgment and award, no cogent reasons are assigned by the reference Court as to why the evidence adduced by the opponent - State came to be discarded.
6.2 Ms.Mathur, ld.AGP submitted that so far as compensation for superstructure is concerned, the reference Court without assigning any reason, came to the conclusion that the claimants were entitled to get compensation for their superstructure, 20% higher than what was offered to them by the Special Land Acquisition Officer. It is submitted that as a matter of fact, at the time of inquiry, the Special Land Acquisition Officer had undertaken the exercise through the concerned Officer of the State Government to prepare relevant maps regarding the superstructure for determination of the market value and the said evidence was produced before the reference Court through the deposition of Dy.Engineer. The trial Court erred in not considering that evidence.
6.3 Ultimately, it is submitted that the appeal may be allowed.
Mr.B.G.Patel, learned advocate representing the respondents (original claimants) during the course of his submission supported the impugned judgment and award rendered by the trial Court. It is submitted that the trial Court rightly relied upon the sale-deed, Exh.20 while determining the market value of the property. It is submitted that considering the sale-deed, Exh.20, it contains the sale transaction took place in village Radhivad and the distance between village Delvada and village Radhivad is about 3 kms. By virtue of the sale-deed, Exh.20, the land admeasuring 108 sq.ft. came to be sold by its owner for Rs.500/- on 9.6.1969 and accordingly the rate per sq.ft. comes to Rs.4.20 ps. i.e. Rs.41.58 per sq.mtr. Mr.Patel, submitted that over and above the sale-deed, Exh.20, the claimants produced other sale-deeds at Exhs.21 to 23, Exhs.66 and 67, but the transactions contained in those sale-deeds were of Khedbrahma town and in the impugned judgment and award, the reference Court rightly discarded the evidence of sale transactions which took place in Khedbrahma town since Khedbrahma is taluka headquarter, having more facilities, whereas village Delvada is small village.
7.1 Mr.Patel, ld.advocate for the respondents submitted that public utilities, public facilities and infrastructures, which were available at the relevant time in village Delvada were almost similar to those available in village Radhivad. Even population wise, there was no large difference. As per the sale instance, Exh.20, which took place in the year 1969, the land which came to be sold, fetched consideration @ Rs.41.58 ps. per sq.mtr., whereas in the instant case, the notification u/s.4 of the Act came to be published in the year 1974 i.e. after about more than 4 years from the date of the sale transaction and, therefore, considering the 10% rise p.a., the amount of compensation, which the reference Court should have determined, should have been more than Rs.41.58 ps., but in the instant case, relying upon the sale instance, Exh.20 of the year 1969, the reference Court determined the amount of compensation @ Rs.15 per sq.mtr. i.e. approximately three times less than the sale instance. It is, therefore, submitted that in the instant case, when the reference Court did not grant compensation at the same rate as per sale instance, Exh.20 or even more than that, the submissions advanced on behalf of the appellants that in absence of examination of either vendor or buyer of the land contained in the sale instance, Exh.20, the reference Court should have discarded said evidence, cannot be accepted.
7.2 Mr.Patel, ld.advocate for the respondents further submitted that though the claimants had examined expert witness to substantiate their case that they were entitled to recover just and fair amount of compensation @ Rs.75 to Rs.80 per sq.mtr. and the reference Court did not rely upon the evidence of said expert witness. Moreover, on behalf of the opponent, though Dy.Engineer came to be examined, but as admitted by said witness, he had no personal knowledge whatsoever regarding the acquisition procedure and one Mr.K.S.Patel had the knowledge about the acquisition proceedings and the appellant - State did not examine said witness.
7.3 In the aforesaid background, Mr.Patel, ld.advocate for the respondents submitted that the appeal may be dismissed.
I have examined the record and proceedings in context with the submissions made by the rival sides.
The only short question that involves in this appeal is as to whether the reference Court committed any error in relying upon the sale-deed, Exh.20 or not. There is no dispute that property of the respondents - claimants, which came to be acquired, is situated in Village Delvada, Tal.Khedbrahma. It has come in evidence as well as in the impugned judgment and award, the reference Court specifically observed that no previous sale instance of village Delvada was available. In the result, the claimants produced the copies of sale instances of village Radhivad as well as of Khedbrahma town from Exhs.20 to 23 and Exhs.66 and 67. Exh.20 is sale instance of village Radhivad and the remaining sale instances are of Khedbrahma town. Considering the sale instance produced at Exh.20, it transpires that land situated in village Radhivad, admeasuring 108 sq.ft. came to be sold for Rs.500 by the registered sale-deed dated 9.6.1969. Accordingly, the per sq.mtr. rate would be Rs.41.58 ps. The remaining sale instance of Khedbrahma town produced by the claimants rightly came to be discarded by the reference Court by assigning cogent and convincing reasons that Khedbrahma is taluka headquarter whereas Delvada is a small town of Tal.Khedbrahma. It has come in evidence that the distance between Delvada and Radhivad is approximately 3 kms. It has also come in evidence that the public facilities and other infrastructures available in both the villages are almost similar. In the above backdrop, the reference Court relied upon the sale instance, Exh.20.
Before the reference Court, the claimants examined witness Bhagwandas Desai at Exh.33, who was a valuer and was examined by the claimants in capacity as expert witness, who produced relevant valuation reports. The evidence of this witness Bhagwandas, examined by the claimants rightly came to be discarded by the reference Court by assigning cogent and convincing reasons that though according to this witness, he visited the site in the year 1976, but he prepared his valuation report in 1983 i.e. about 6 - 7 years after his visit. Moreover, the reference Court observed that according to the evidence of the expert witness, in the year 1976, when he visited the site, he had prepared his kachha note, which was not produced by this witness at the time of his evidence.
10.1 The appellant - State before the reference Court examined Dy.Engineer, namely, Kantilal Patel at Exh.71. Through his reports, the valuation reports from Exhs.72 to 98 came to be produced as well as the schedule of rate, Exh.99 was produced. In the impugned judgment and award, the reference Court, at length, evaluated the evidence of this witness examined by the appellant - State and came to the conclusion that the documents, which this witness produced, namely, the valuation reports came to be prepared by Mr.K.N.Patel, the then Dy.Engineer and to prove the contents of those documents, the appellant - State did not examine Mr.K.N.Patel as their witness.
In the aforementioned situation, the reference Court came to the conclusion that except considering the comparable sale instance, Exh.20, no other option was available. In the impugned judgment and award, the reference Court then proceeded to appreciate the evidential value of the sale-deed, Exh.20 and observed that the sale instance took place in the year 1969 and the public utilities and other necessary infrastructures, were almost similar in Delvada as well as Radhivad and the distance between the two villages was about 3 kms. Both the villages were of Tal.Khedbrahma. As per the sale instance, Exh.20, in the year 1969, the property came to be sold @ Rs.41.58 ps. per sq.mtr. In the instant case, the notification u/s.4 of the Act, came to be published in the year 1974. Thus, there was a gap of time of more than 4 years. Mr.Patel, ld.advocate for the respondents submitted that as a normal practice, when the sale instance is prior to the time of the date of the notification u/s.4 of the Act, 10% rise p.a. is calculated, and on the basis of that formula, it is submitted that the reference Court should have awarded the just and fair amount of compensation @ more than Rs.41.58 ps.per sq.mtr. In context of this submission, if the observations made by the reference Court in the impugned judgment and award is considered, the reference Court determined the amount of compensation at the additional rate of Rs.15 per sq.mtr. and not at the rate contained in the sale-deed, Exh.20. In the aforesaid backdrop, the submission advanced on behalf of the appellant - State that in absence of examining either vendor or the buyer of the property contained in the sale-deed, Exh.20, the reference Court should not have relied upon said sale-deed, is required to be appreciated.
There cannot be any dispute that to prove the essential fact that any sale transaction relied upon by any party was a free transaction without any sort of compulsion, the evidence of either the vendor or the purchaser is required. In the instant case, admittedly neither the vendor nor the buyer of the property contained in the sale-deed, Exh.20 has been examined. As discussed above in this judgment, though the reference Court considered the sale instance, Exh.20, as base to determine the just and fair amount of compensation, yet, the reference Court did not award the compensation at the same rate i.e. Rs.41.58 per sq.mtr. or considering the gap of more than 4 years, more amount by way of compensation, but in the instant case, though the reference Court considered the sale instance, Exh.20 as the base for determining the just and fair amount of compensation, yet, the reference Court virtually granted the compensation, which comes to approximately 1/3rd the amount at which the sale instance, Exh.20 came to be entered into. The reference Court awarded the additional amount of compensation @ Rs.15 per sq.mtr. Thus, considering the peculiar facts and circumstances of the instant case, when the reference Court faced the situation that neither the evidence of expert examined by the claimant was found to be acceptable nor the evidence of the witness examined by the appellant - State was found to be acceptable, and the reference Court was left only with the evidence of sale instance, Exh.20, this Court finds that the reference Court did not commit any error or any illegality in arriving at the conclusion that the claimants were entitled to recover the additional amount of compensation @ Rs.15 per sq.mtr..
Regarding the superstructure on the acquired land, as stated earlier, so far as L.A.R.No.403 of 1988 is concerned, the Special Land Acquisition Officer offered Rs.9291/- by way of compensation. In the impugned judgment and award, the reference Court examined this aspect of the matter and again examined the overall evidence adduced by both the sides and came to the conclusion that 20% increase in the amount of compensation offered by the Special Land Acquisition Officer was desirable and accordingly fixed the market rate of the superstructure by adding 20% in the estimated cost in column No.6 in the schedule of rate produced at Exh.99. Considering the facts and circumstances of the case, so also the reasonings assigned by the reference Court in arriving at such conclusion, the just and fair compensation determined by the reference Court regarding the superstructure cannot be said to be excessive or at the higher side.
In light of the above discussions, this Court is of the opinion that the appeal lacks merits and deserves dismissal.
For the foregoing reasons, the appeal stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(J.C.UPADHYAYA, J.) (binoy) Top