Gujarat High Court
Special Land Acquisition vs Chaudhari Manibhai on 2 September, 2013
Author: Jayant Patel
Bench: Jayant Patel
SPECIAL LAND ACQUISITION OFFICERV/SCHAUDHARI MANIBHAI KANJIBHAI THROUGH ADMINISTRATOR CHAUDHARI NENJIBHAI SENDHABHAI....Defendant(s) C/FA/2293/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2293 of 2013 With FIRST APPEAL NO. 2294 of 2013 TO FIRST APPEAL NO. 2321 of 2013 With CIVIL APPLICATION NO.
8991 of 2013 In FIRST APPEAL NO. 2293 of 2013 TO CIVIL APPLICATION NO.
9019 of 2013 In FIRST APPEAL NO. 2321 of 2013 ================================================================ SPECIAL LAND ACQUISITION OFFICER & 1....Appellant(s) Versus CHAUDHARI MANIBHAI KANJIBHAI THROUGH ADMINISTRATOR CHAUDHARI NENJIBHAI SENDHABHAI....Defendant(s) ================================================================ Appearance:
MR DM JAYSWAL, AGP for the Appellant(s) No. 1 2 in FA NOS. 2293 to 2302 OF 2013 with CA Nos. 8991 to 9000 of 2013 MR HARDIK SONI, AGP for the Appellants No.1-2 in FA Nos. 2303 to 2311 of 2013 with CA Nos. 9001 to 9009 of 2013 MS MAITHILI MEHTA, AGP for Appellants No.1-2 in FA Nos. 2312 to 2321 of 2013 with CA Nos. 9010 to 9019 of 2013 MR AV PRAJAPATI, ADVOCATE for the Defendant(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 02/09/2013 ORAL COMMON ORDER (PER : HONOURABLE MR.JUSTICE JAYANT PATEL) (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) As all the Appeals arise from the common Judgment and the Award passed by the Reference Court, they are being considered simultaneously.
All the Appeals are directed against the Judgment and the Award passed by the Reference Court in Land Reference Cases No. 357 of 2006 to 384/A of 2006, whereby the Reference Court has awarded additional compensation of Rs.248/- per square meter + Solatium at the rate of 30 %, increase at the rate of 12 % and the interest as per Section 28 of the Land Acquisition Act (herein after referred to as the Act ).
The short fact of the case appears to be that for the project of Sujlam Suflam Spreading Canal, Section No.1 Mehsana, the land of village Solaiya, Taluka Mansa, District Gandhinagar, were to be acquired. The Notification under Section 4 of the Act was published on 17.8.2004. The notification under Section 6 of the Act was published on 10.11.2004. Thereafter the Award has been passed by the Special Land Acquisition Officer on 7.4.2005 whereby the Special Land Acquisition Officer awarded compensation at Rs.13/- per sq. meter plus the statutory benefit. As the original claimants/land owners were not satisfied with the compensation, they raised the dispute under Section 18 of the Act and demanded the compensation of Rs.500/- per sq. meter. Such disputes were referred to the Reference Court for adjudication being Land Reference Case Nos. 357 of 2006 to 384/A of 2006.
The Reference Court, at the conclusion of the Reference, passed the above referred Judgment and the Award. Under the circumstances, the present appeals before this Court by the Special Land Acquisition Officer and the Executive Engineer.
We have heard learned A.G.P., appearing in all the matters. We have also heard Mr. Prajapati, learned Counsel, who has appeared on behalf of the original claimants in all the Appeals upon the advance copy being served upon him. We have considered the Judgment and the reasons recorded by the Reference Court in the impugned Judgment. We have also considered the documentary evidence which have been made available by the learned Counsel appearing for both the sides for supporting their contentions.
It appears from the reasons recorded by the Reference Court, that the Reference Court was mainly guided by the fact that the location of the land in question at village Solaiya was adjacent to Mansa Town and, therefore, the Reference Court found that so far as Mansa is concerned, this Court in Appeal for the acquisition of the very project has assessed the market value of the land at Rs.373/- per sq. meter as per the decision in First Appeal No.3397 of 2009 and allied matters. The reference Court further found that the value of the land at Mansa Town would be higher in comparison to the land at village Solaiya even if the boundary is touching and, therefore, the Reference Court has made deduction of 30 % from the market value assessed for the land at Mansa and thereafter has assessed the market value at Rs.261/- per sq. meter, out of which as the amount of compensation at Rs.13/- per sq. meter was already awarded by the Special Land Acquisition Officer, the Reference Court has awarded the additional compensation at Rs.248/- per sq. meter.
Learned AGP has submitted that this Court in respect of the land of the village located on the other side of Mansa Town, namely, for village Lodra as well as for village Rangpar, has assessed the market value at the lesser amount and for such purpose he relied upon the decision of this Court in First Appeal No.3030 of 2011, decided on 10.10.2011 and the another decision of this Court in First Appeal No.1898 of 2011 to 1942 of 2011, decided on 28.6.2011, in respect of the acquisition of the land at village Rangpar and at village Lodra. It was submitted that if the market value assessed by this Court in above referred decisions are considered, it can be said that the Reference Court has assessed the market price of the land substantially more and, therefore, there is a good ground to interfere in the Appeal and the compensation awarded by the Reference Court deserves to be revised.
Whereas, Mr. Prajapati, learned Counsel, appearing for the original claimants relied upon another decision of this Court in First Appeal No.3020 of 2011 and allied matters, decided on 5.10.2011, and submitted that in respect of the land located at village Itadra for the very project, this Court had relied upon the decision for acquisition of the land at Mansa in First Appeal No. 3397 of 1999 and allied matters and thereafter has considered the aspects of 30 % deduction for the land located at village adjacent to the municipal limit of Mansa and thereafter made further deduction of 10 % since village Itarda was located next to other villages. It was submitted that in the very decision of this Court in First Appeal No.3020 of 2011, this Court did record that as per the location, village Solaiya and Fatepura are located just adjacent to Mansa Town and the Itadra is located thereafter. He submitted that the present case pertains to the acquisition of the land at village Solaiya and, therefore, the market price assessed for the land at Mansa would be more comparable in contra-distinction to the land located for the other side of Mansa Town at village Lodra or at village Rangpar as sought to be canvassed on behalf of the appellants. He submitted that if the observation made by this Court in the decision in First Appeal No. 3020 of 20121 are considered, it cannot be said that the Reference Court has committed any error which may call for interference in the present Appeals.
In our view, there is considerable force in the contention raised by the learned Counsel for the original claimants, inasmuch as, in the decision of this Court in First Appeal No.3020 of 2011 and allied matters, in case of Deputy Collector v/s Rana Pruthvisinh Gobarji, decided on 5.10.2011, the acquisition of the land was at village Itarda, Taluka Mansa, District Gandhinagar, for the very project of Sujlam Suflam Spreading Canal. In the said case also, the notification under Section 4 was published on 17.8.2004 which is the same date in the present group of matters. Therefore, there is no difference in the date of the notification under Section 4. In the said matter, this Court at Para 10 to 14 observed thus -
As such we find that the Reference Court has committed error in relying upon another decision of the Reference Court for the acquisition of the lands at Village Rajpura, which is located at far distant place from Village Itadara, because in between Village Itadara to Rajpura, other Villages namely; Villages Fatehpura, Gulabpura and Bhimpura are located. If one is to find out the distance via Mansa, then also in between there are Villages Solaiya, Fatehpura and Mansa Towns located. Therefore, we find that the reliance placed by the Reference Court upon the decision for acquisition of the land for Village Rajpura was erroneous.
In view of the above, the nearest location could be considered for the purpose of assessing the market price as that of the Village/Town Mansa and the acquisition of the land at Mansa who also for the very project of 'Sujlam Suflam' Spreading Canal. Had it been a case where the appeals were before this Court where the judgement of the Reference Court in respect of the land acquisition for Mansa were relied upon, the matter would have been on a different footing and for different consideration, however, as recorded herein above, this Court has already decided those appeals being First Appeals No.3397 of 2009 and allied matters. Therefore, we find that the same would one of the most relevant aspects on the basis of which the market price can be considered of the land under acquisition in the present case. We may record that in the First Appeals No.3397 of 2009 and allied matters, this Court for the acquisition of the land at Mansa, which is a Taluka Town had recorded the reasons as under:-
4. The perusal of the judgement of the Reference Court and more particularly the reasons recorded by the Reference Court from para 20 onwards shows that the Reference Court has mainly relied upon the decision of the earlier Reference Court for acquisition of the land at Mansa for the purpose of ONGC project and the compensation awarded therein. The Reference Court has found that keeping in view the said aspect that the compensation awarded was of Rs.646.50, it would be just and proper to award the compensation at Rs.585/- per square metre and based on the same, after deducting Rs.25/- as compensation already awarded, the Reference Court awarded additional compensation at Rs.560/- per square metre plus the statutory benefits.
5. The learned AGP has submitted that merely because the Award in case of ONGC Project was accepted or that no appeal was preferred against the decision of the Reference Court, it cannot be said that there is no merit in the present appeals or that the judgement and the award of the Reference Court is not required to be interfered with. She relied upon the decision of the Division Bench of this Court in First Appeal No.4069/07 and allied matters decided on 11.04.2008 for acquisition project of village Sargasan of the same district, viz., Gandhinagar and she submitted that in spite of the fact that Sargasan is nearby to the periphery of Gandhinagar, which is a capital town, this Court has fixed the market value at Rs.231/- per square metre of the land of village Sargasan and therefore, she submitted that if the said aspect is taken into consideration, the compensation fixed by the Reference Court is on a higher side even if the appreciation is considered because of the time gap between the notification under section 4 of the Act in the case of acquisition of the land at Sargasan and the acquisition in question of the land at Mansa.
6. Whereas Mr.Soni, learned counsel appearing for the original claimants-respondents herein submitted that the decision of this Court was not before the Reference Court and in his submission, as the Award of the Reference Court for the land at city Mansa was already accepted, the Reference Court was not wrong in relying upon the said decision for the purpose of fixing the compensation. He submitted that if the valuation of the Government valuer is considered, the price may be much higher in comparison to the same lesser amount is fixed as the market price by the Reference Court as per the reasons recorded therein. Therefore, he submitted that the Reference Court has rightly awarded the compensation.
7. We may record that the aspect of valuation made by the Government Valuer is concerned, the same is not accepted or relied by the Reference Court and there is no cross appeal by the claimants/respondents herein. Therefore, the original claimants cannot press in service the aspect which has not been accepted by the Reference Court. Further, it is by now well settled that if there is decision of this Court on the aspect of fixation of price of the land for any other acquisition project in the nearby area, the same can be taken into consideration by this Court even if such was not brought to the notice of the Reference Court.
8. We may record that the acquisition in question is at Mansa which is a taluka town, but in Gandhinagar district. Gandhinagar is a district as well as capital town of Gujarat State. Sargasan is just at a nearby distance of 8-10 kms from Gandhinagar. If for the acquisition project of village Sargasan any decision is taken by this Court for fixation of price, it will be the relevant aspect and even if it is not brought to the notice of the Reference Court at the relevant point of time when the appeals are to be considered and decided by us, the same can be taken into consideration. Hence, we cannot accept the objection raised by the learned counsel for the appellant.
9. The perusal of the decision of this Court in the First Appeal No.4069 of 2007 for the acquisition project of the land at village Sargasan shows that the notification under section 4 in that case was dated 20.05.1993 and the market price upheld by this Court is at Rs.231 per square metre. In the present case, as observed earlier, the notification under section 4 is dated 26.08.2004. Therefore, there is roughly a time gap of about 11 years between the notification in the case of land acquisition for the land at village Sargasan and the present acquisition. It is by now well settled that in normal circumstances, the appreciation could be considered at the rate of 10% p.a. and if such aspect is considered, for 11 years, the amount of appreciation would come to Rs.254/- + Rs. 231/-, as the price was fixed in the year 1993, it would come to Rs.485/- per square metre if the matter is considered as it is.
10. However, the aspect of distinction between location of land at village Sargasan near to the capital city of Gandhinagar and the aspect of location of the land at Mansa, which is a taluka town, deserves to be considered. The distance between Gandhinagar city and Mansa is stated to be approximately 20 kms. We find that there is full development of Gandhinagar capital city and it cannot be at par with Mansa which is a taluka town. Even if Sargasan is considered as suburb area of Gandhinagar capital city, then also, there will be substantial difference in the price in comparison to the price of the land at Mansa. It appears to us that even if the difference is considered between suburb of capital city in comparison to the taluka town, the normal deduction can be made at the rate of 30%.
However, after considering the said deduction, the aspect of development for Mansa is also required to be considered. If 30% deduction is considered of Rs.485/-, Rs.145/- would be required to be deducted and consequently the net amount would come to Rs.339/-. We find that since Mansa is a taluka town, 10% additional benefit by way of appreciation of the price of the land may be available since in Taluka town there will be basic infrastructure of road, light and other developments. If the amount of 10% is added being Rs.34/-, the said amount would come to Rs.373/- per square metre being the market price of the land in question, out of which, the amount of Rs.25/- has already been awarded as compensation and if the said amount is deducted, the net amount of additional compensation would come to Rs.348/- per square metre. Under the circumstances, the judgement and the award passed by the Reference Court for granting additional compensation exceeding Rs.348/- per square metre deserves to be quashed and set aside.
The aforesaid shows that the market price of the land in the year 2004 located at Mansa Town was assessed at Rs.373/- per sq. mtrs. But at the same time, we need to keep in mind the material difference between the location of the land in a Town and a Village. As per the view taken by this Court in First Appeal No.2794 of 2009 and allied matters for the acquisition of the lands at Brahmanvada, whose boundaries were just touching to Unja Town it was found that there will be minimum difference in value of 30% if the land is located within the Municipal area or a Town and the land of the adjacent village whose boundaries are touching the Municipal limits and to say in other words, the valuation of the lands of the adjacent village outside the Municipal area, whose boundaries are touching the Municipal limits would be 30% less.
The map shows that the boundaries of the lands at Mansa are touching the three villages namely; Gulabpura, Fatehpura and Solaiya and thereafter, there is location of Village Itadara, where the lands in question are situated. Therefore, further deduction would be called for for the assessment of the market value of the land at Village Itadara. After the deduction of the value at the rate of 30% from the value arrived at by this Court in respect of the acquisition of the land at Town Mansa, we find that the Village Itadara is not located on the State Highway and in view of the details given in the award that there is no potentiality of the development for non-agricultural purpose, further deduction of 10% would be required to be made.
In view of the aforesaid, 30% of Rs.373/- would come to Rs.111.90, if rounded off, it would be Rs.112/-. The net amount would come to Rs.261/- plus further deduction of 10% of Rs.26.10, if rounded off, it would be Rs.26/-. Consequently, the net amount would be Rs.235/- being the market value of the land. Out of the said amount, Rs.19/- has already been awarded as compensation by the Special Land Acquisition Officer. Hence, additional amount of compensation would come to Rs.216/- per sq. mtrs. Under the circumstances, the judgement and award passed by the Reference Court for exceeding additional amount of compensation of Rs.216/- per sq. mtrs., deserves to be quashed and set aside. Hence, order accordingly. As in both the groups of appeals, all the lands are located at the very village Itadara and the common reasonings are adopted, the same situation will prevail in both the groups of appeals.
The aforesaid shows that this Court did record that the distance via Mansa to Itodara shows that in between there is village Solaiya, which in the present case, Fatepura and Mansa town. Not only that, but again at the above referred Para 13, it has been recorded that the boundaries of the land at Mansa are touching to three villages, namely, Gulabpur, Fatepura and Solaiya and village Itadra was located thereafter. The aforesaid makes it clear that the boundary of village Solaiya is touching to Mansa town. It was further observed by this court at above referred Para 12 that as per the view taken by this Court in First Appeal No.2794 of 2009 and allied matters, for the acquisition of the land at Brahmanvada whose boundaries were touching to Unjha Town, there would be minimum difference in the value of 30% if the land is located within the municipal area or the town and the land of the adjacent village whose boundaries are touching to municipal limit and and accordingly, it was observed that the value of the land of adjacent the village outside the municipal area whose boundaries are touching to the municipal limit would be 30% less. Exactly, the same has been done by the Reference Court while passing the impugned Judgment. In the present case, the lands are located at village Solaiya and the boundaries are touching to Mansa Municipal limits. Therefore, if one has to trace the market value of the land located at village Solaiya after taking into consideration the basis of the market value, of the land of Mansa Town or municipal limit, it would call for deduction of 30% which has been done by the Reference Court. Since we are not required to consider the value of the land located after one village touching to the municipal limit like that of Itadara which was the subject matter in the above referred First Appeal, that aspect would not be relevant in the present Appeals. In our view, taking into consideration the above referred decision of this Court, it cannot be said that the Reference Court has committed any error.
The reliance placed upon the another decision of this Court in First Appeal No. 3030 of 2011 for the land located at village Rangpar and the another decision of this Court dated 28.6.2011 in First Appeal No.1898 of 2011 for the land located at village Lodra, if considered with the map (Exh.45) which was produced on record, it appears that those villages are located on the opposite side of Mansa Town. Not only that, but there are other villages located between the boundaries of Mansa and the boundaries of Lodra. Same is the position so far as village Ranpar is concerned. Had it been the case where there were no comparable decisions before the Reference Court or of this Court for awarding of compensation in respect of the other adjacent land, such decision upon which the reliance has been placed by the learned AGP might assume importance. However, when for the nearest land the decision of this Court is available, as referred to herein above in First Appeal No.3020 of 2011, we do not find that any different view deserves to be taken than as was taken in the decision of the First Appeal No. 3020 of 2011, except by keeping in view the distinction that the boundary of village Solaiya is touching to the municipal limit of Mansa and thereafter Itadar is located.
The other benefits awarded by the Reference Court are by way of statutory consequences, inasmuch as the solatium, increase in the market price and the interest are provided by the statute on the principal amount of compensation for which even otherwise also no interference is called for.
In view of the above, we find that it cannot be said that the Reference Court has committed an error in awarding additional compensation at Rs.248/- per sq. meter and in awarding statutory benefit of solatium under Section 23(2), increase in the market price under Section 23(1)(A) and the interest under Section 28(A) of the Act.
Hence, all the Appeals are meritless. They deserve to be dismissed and accordingly dismissed. Considering the facts and circumstances, no order as to costs.
ORDER IN CIVIL APPLICATIONS NO. 8991 TO 9019 OF 2013:
In view of the dismissal of the concerned First Appeals, Civil Applications would not survive. Hence, all the Civil Applications are disposed of.
(Jayant Patel, J.) (Z. K. Saiyed, J.) SAS Page 15 of 15