Gujarat High Court
General Manager Ongc vs Patel Kanaiyalal Girdhardas & on 9 June, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.B.Shah
C/FA/1724/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1724 of 2008
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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GENERAL MANAGER ONGC....Appellant(s)
Versus
PATEL KANAIYALAL GIRDHARDAS & 1....Defendant(s)
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Appearance:
MR AJAY R MEHTA, ADVOCATE for the Appellant(s) No. 1
MR AV PRAJAPATI, ADVOCATE for the Defendant(s) No. 1
RULE SERVED BY DS for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Page 1 of 7
C/FA/1724/2008 JUDGMENT
Date : 09/06/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of this First Appeal the appellant has challenged the judgment and order of the Presiding Officer, 3rd Fast Track Judge, Mehsana at Mehsana in Land Acquisition Reference NO. 525 of 2006
2. The lands situated at village Kaiyal, Taluka Kadi, District Mehsana were acquired for the purpose of drill site No. NNED by the appellant. Notification under section 4 of the Land Acquisition Act was published on 8th August 2005 and declaration under section 6 of the Act was published on 24th January 2006. The Land Acquisition Officer, after issuing notice to the claimants and after hearing the claimants and considering the evidence led by the claimants, has passed an award awarding compensation at the rate of Rs 12-00 per sq. mtr. Being aggrieved by the award of the Land Acquisition officer, the claimants had sought references before the District Court claiming compensation at the rate of Rs 2000/- per sq mtr.
3. The Reference Court has concluded that the market value of the land should be Rs 190/- and therefore the claimants were entitled to additional compensation at the rate of Rs 178/- per sq. mtr (Rs 12-00+178-00=Rs190-00) with solatium at 30% additional market value @ 12% and interest at 9% p.a from the date of taking possession till one year and thereafter at the rate of 70% p.a till its realization on all these amounts. It is against the said Page 2 of 7 C/FA/1724/2008 JUDGMENT award the present Appeal has been filed.
4. Learned counsel for the appellant has contended that the Reference Court has come to the conclusion that the claimants would be entitled to additional compensation @ Rs 178/- per sq. mtr over and above Rs 12-00 awarded by the Land Acquisition officer, but there is no evidence or supporting evidence in this behalf.
5. Learned counsel for the respondent Mr. Prajapati was not in a position to show any of the sale instance or award which is sought to be recorded in para 11. In view of the above the trial court has committed error in relying to the references which is not on record and hence the award is required to be quashed and set aside and the same is remanded back to the trial court.
In this regard para 11 which is in vernacular language and english translated version of the same reads as under:
(11) As I have discussed above, no such sale deed has been produced for the applicant showing the fact that the land has been sold at the rate of Rs.2,000/- per 1 sq. meter. No trustworthy documentary evidence has been produced for the government showing that it may have been sold at the rate of only Rs.12/-
per 1 sq. meter or even less than it. Under the circumstances, in order to fix reasonable value of the disputed land, this court has to rely only upon the earlier judgments. The judgments which have been produced are of Jagudan village, Hebuva village and Laxmipura village of Kadi taluka. I have discussed above regarding all these three judgments.
It has been submitted before me for the State that the award passed by special acquisition officer should be taken into Page 3 of 7 C/FA/1724/2008 JUDGMENT perusal. But, in the case of The Officer on Special Duty, Land Acquisition Ahmedabad V/s. Gordhanbhai Bhalabhai Patel, reported in 1983 GLH, Page No. 136, it has been held that the award passed by Acquisition Officer is not bound to the Reference Court; because, the Reference Court is originally having civil jurisdiction. Therefore, discussing and deliberating the evidences de novo which have been recorded before the court, value of the land has to be decided. Under the circumstances, if the present Acquisition Officer has made any observation, it is not bound to the Reference Court. Such submission has been made before me that the Acquisition Officer has fixed the price on the basis of deeds of five years and therefore also, interference is necessary. But, no evidence has been produced before this court regarding the fact as to sale deeds of which five years have been taken into consideration. It has been also submitted that no evidence has been produced regarding the fact as to how much the applicant himself was exactly earning from the land and therefore also, the income as stated by the applicant cannot be taken into consideration. This submission is also not agreeable; because, as discussed above, one is not supposed to maintain any account of agricultural income. Practically, it is also not possible for farmer. On the other hand, this court is competent to note that value of rupee is decreasing day by day and prices of essential commodities are increasing. Under the circumstances, value of land are also increasing. If the same is taken into consideration, at this stage, the court is also competent to take a judicial note that in order to save stamp duty, people execute sale deeds of very low prices than the actually paid amount of consideration. On the other hand, in the case of State of Page 4 of 7 C/FA/1724/2008 JUDGMENT Madras V/s. A. M. Manjan and others, reported in 1996 (SC) Page No. 4473, the Hon'ble Supreme Court has held that if the award passed by the competent court is proper in view of comparison, the earlier award can be accepted to decide value of surrounding lands of that particular land. In the same way, in the case of Special Land Acquisition Officer, Kheda V/s. Shantilal Jivabhai Patel reported in 1993(2) G.L.R., Page No. 1289, the Hon'ble Gujarat High Court has held that value of the land which was prevailing before the date of notification of Sec.4 should be taken into consideration. Similarly, in the case of 2nd Additional Land Acquisition Officer V/s. Chunilal, reported in 1992(2) G.L.R., Page No. 1357, the Hon'ble Gujarat High Court has held that the judgment given by Reference Court in earlier case can be considered important evidence to decide value of land in the following cases. In this judgment, the Hon'ble Gujarat High Court has also observed that when outskirt of land of the earlier judgment and the acquired land is common, there is nothing objectionable if the earlier judgment is taken into consideration with respect to the lands of common outskirt.
Considering principles of the aforesaid judgment, in order to decide reasonable market value of the present disputed lands, I believe it necessary and essential to note that no such judgment of earlier Reference Court has been produced in which surrounding lands of the present disputed lands have been acquired. But, as I have discussed above the judgments regarding lands of Laxmipura village of Kadi taluka and Jagudan village of Mehsana taluka, considering other circumstances and other facts, that judgment definitely becomes helpful to decide the vlaue in the present case.
Page 5 of 7C/FA/1724/2008 JUDGMENT Though I have discussed above in detail, even at the cost of repetition, I feel it necessary to note that Jagudan village is also situated on Mehsana-Ahmedabad highway road; whereas, the village Kaiyal where the present lands have been acquired is also situated on Mehsana- Ahmedabad highway. The present disputed lands are irrigated fertile lands, Ahmedabad is nearer than Mehsana, there is a factory nearby, an oil mill is situated and all types of facilities are available in the village. This land has been compulsorily acquired. Not only this, but as discussed about judgment of Laxmipura village of Kadi taluka, the applicant has admitted in the said case that rain fall is irregular. In the present case, the land is fertile and irrigation is available. The applicant himself cultivates valuable crop like lemon. Considering all the circumstances, this court precisely believes that in the case of Jagudan village, the Land Reference Court has awarded rate of Rs.185/- per sq. meter vide its order dated 30/4/2007 which was the notification of the year 1999. Whereas, in the present case, the notification has been issued in the year 2004. In that way, the rate amounts to Rs.280/- which would be considered very excessive. Whereas, in the case of LAR No. 251/99 to 259/99, rate of per sq. meter has been decided Rs.63/- by the Land Reference Court vide its order dated 9/8/2002 and notification in this case was issued in 1995 and accordingly, considering 10% annual increase in 2004, the rate amount to Rs.112/- in the year 2004. But, those lands are less fertile in comparison to disputed lands and they are far from highway. Considering these facts, that rate would be considered very less for the present lands. But, considering rate of both these lands, it would be reasonable in all ways to award rate of Rs.190/- per sq. meter for the disputed land. Therefore, it Page 6 of 7 C/FA/1724/2008 JUDGMENT is held that in connection with the issue No.2, the applicant is entitled to get rate of Rs.190/- per sq. meter for the disputed land.
6. From the above it is clear that there is no sale instance or award on record. The Tribunal has proceeded on mere assumptions and presumptions. The award is made without any concrete evidence. Learned counsel for the respondent Mr. Prajapati is not in a position to show any award on record in favour of the respondent. On this ground alone it would be proper to remand the matter to the Tribunal.
7. Accordingly the impugned award is quashed and set aside. The matter is remanded to Tribunal for reconsideration and a decision afresh. Appeal is allowed accordingly with no order as to costs. R & P shall be sent back forthwith.
8. At this stage Mr. Mehta for the appellant states that the complete amount is withdrawn contrary to the order of this Court. However, solvent surety is given which will continue.
(K.S.JHAVERI, J.) (G.B.SHAH, J.) mary Page 7 of 7