Gujarat High Court
Popatbhai vs Spl on 27 September, 2011
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
Gujarat High Court Case Information System
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FA/94/1994 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 94 of 1994
To
FIRST
APPEAL No. 96 of 1994
With
FIRST
APPEAL No. 102 of 1994
To
FIRST
APPEAL No. 106 of 1994
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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POPATBHAI
FULABHAI - Appellant(s)
Versus
SPL
LAND ACQUISITION OFFICER - Defendant(s)
=========================================================
Appearance
:
MR SANJAY M AMIN for
Appellant(s) : 1,
MS MATHUR AGP for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 25/02/2011
ORAL
JUDGMENT
First Appeal Nos.94 to 96 of 1994 arise out of common judgment and award rendered by Assistant Judge, Mehsana on 29.4.1993 in Land Reference Case Nos. 498 to 500 of 1990. First Appeal No.102 to 106 of 1994 arise out of the common judgment and award rendered by Assistant Judge, Mehsana on 28.4.1993 in Land Reference Case Nos. 504 to 508 of 1990. For the sake of convenience, First Appeal No.94 to 96 of 1994 shall be herein after referred to as first group of appeals and First Appeal Nos. 102 to 106 of 1994 shall be herein after referred to in this judgment as second group of appeals. Since both these groups of appeals involved common question of law, with the consent of both the sides, all these 8 (eight) appeals which are included in both these groups are heard together and are being disposed by this common judgment.
So far as the first group of appeals which arise out of impugned judgment and award rendered in reference Case No.498 to 500 of 1990 is concerned, the Notification under Section 4 of the Land Acquisition Act (for short 'the Act') was published on 5th January, 1984 and the Notification under Section 6 of the Act was published on 12.6.1986. Inquiry was conducted by Special Land Acquisition Officer and by award under Section 11 of the Act, the Special Land Acquisition Officer offered Rs.2 per Sq.Mtr., for the lands of the claimants which were situated in the outskirts of village: Kasanpura, Tal. Kadi, District: Mehsana. The appellants-claimants felt that amount offered by the Special Land Acquisition Officer was very less and meager. They preferred references and the reference Court registered the reference cases as Reference Case Nos.498 to 500 of 1990 and the appellants claimed the compensation of their lands acquired @ Rs.20 per sq.mtr. Before reference Court, the evidence of one of the appellants-claimants, namely, Vasudevbhai Narayanbhai came to be recorded. During the course of his evidence, he produced certain extracts of revenue records of the lands as well as produced bills showing sale of his crops at Exh.19 and Exh.20. The appellants-claimants also relied upon earlier award of the reference Court which came to be passed pursuant to the temporary acquisition of the same lands in Land Reference Case Nos. 235 to 239 of 1984 and the certified copy of the said award was produced at Exh.17. So far as opponent side is concerned, no oral or documentary evidence came to be produced by the opponent before the reference Court.
So far as the second group of appeals which arise out of impugned judgment and award rendered by the reference Court in Land Reference Case Nos.504 to 508 of 1990 is concerned, in the said cases, the lands of the appellants-claimants came to be acquired pursuant to the publication of the Notification under Section 4 of the Act dated 2.8.1984 and the Notification under Section 6 of the Act came to be published on 13.3.1986. In the proceedings under Section 11 of the Act, Special Land Acquisition Officer offered compensation @ Rs.2.75 paise per sq.mtr. The claimants of these reference cases felt that the amount offered by way of compensation was quite inadequate and meager and therefore, they preferred references which were numbered and registered as Land Reference Case Nos. 504 to 508 of 1990. Before the reference Court one of the appellants-claimants, namely, Prahladbhai Valjibhai, came to be examined at Exh.19. Extracts of revenue records of the lands which went in acquisition as well as sale bills of the crop came to be produced. The copy of earlier award passed by the reference Court in connection with temporary acquisition of the same lands was produced and relied upon. In the said matters, on behalf of the opponent, no oral or documentary evidence was produced.
After appreciating, evaluating and scrutinizing the evidence on record in Land Reference Case Nos. 498 to 500 of 1990 by impugned common judgment and award, reference Court awarded the compensation to the appellants-claimants @ Rs.4 per sq.mtr.;whereas, in the land reference Case Nos. 504 to 508 of 1990, reference Court awarded the compensation to the appellants-claimants @ Rs.5.50 paise per sq.mtr. The appellants-claimants felt that the amount awarded by the reference Court was also less and inadequate and therefore, the respective appellants-claimants challenged the respective impugned judgment and award of the reference Court by preferring the above referred two groups of appeals before this Court.
Mr.Nitin M.Amin, learned counsel representing the appellants in both the groups of appeals submitted that in the impugned judgment and award rendered by the reference Court, the reference Court committed serious error in arriving at the conclusion that the appellants-claimants were entitled to recover the compensation of their lands acquired @ Rs.4 per sq.mtr. and Rs.5.50 per sq.mtr. respectively. Relying upon the evidence of the claimants adduced before the reference Court, it was submitted that their oral evidence clearly revealed that three crops were cultivated in a year by the claimants. The claimants have produced sale bills not only showing the yield of their lands but even the price they were fetching of sale of their crops. It is further submitted that according to the evidence of the claimants, after deducting reasonable expenses out of their agricultural income, they used to earn net Rs.8,000/- to Rs.9,000/- per annum and it was net agricultural income. It is further submitted that on behalf of the opponent, no rebuttal evidence is adduced to show to the reference Court that the facts narrated by the claimants in their deposition on oath were untrue. Mr.Amin, learned counsel, therefore, submitted that even if, the net annual income by way of agriculture is considered to be Rs.8,000/- per annum and applying multiplier of 10 divided by the area of the lands under acquisition, Rs.34.78 would be the amount per sq.mtr. to be awardable to the claimants by way of compensation. It is submitted that as against that in the instant case, the claimants only claimed the compensation @ Rs.20 per sq.mtr.
Mr.Amin, learned counsel for the appellants submitted that in the instant case, agriculture lands of the appellants-claimants of both the groups of appeals came to be temporarily acquired by the opponent-ONGC on 24.7.1981. The rental value assessed by Land Acquisition Officer and the compensation for temporary acquisition awarded to the claimants @ 45 paise per sq.mtr. was felt to be very less and inadequate and therefore, the appellants-claimants preferred reference cases which were numbered and registered as Land Reference Case No.235 to 239 of 1984 and the reference Court vide common judgment and award dated 18th February, 1993 fixed the compensation on the rental basis @ Rs.2 per sq.mtr. per annum. It is therefore submitted that in the instant case, the reference Court should have determined the just and fair amount of compensation on the basis of net rental value of the property went in acquisition which is usually known as rental value method. In support of such submission, Mr.Amin, learned counsel relied upon the case of Deputy Collector, Land Acquisition, Gujarat and Another V/s. Madhubhai Gobarbhai and Another reported in (2009) 15 SCC 125; wherein, regarding the rental value method, Hon'ble Apex Court held that the multiplier of 10 over the annual rental income and the computation of compensation accordingly would be the appropriate method.
Accordingly, Mr.Amin, learned counsel submitted that in the instant case the rental value was fixed by the competent reference Court in the year 1993 at Rs.2 per sq.mtr. per annum. The earlier award passed by the reference Court has attained the finality as neither the claimants challenged the said award for enhancement nor opponent side challenged the said award for reduction. Mr.Amin, learned counsel, therefore, submitted that in the instant case, the reference Court should have awarded the compensation on rental value method as held by Hon'ble Apex Court in Madhubhai Gobarbhai and Another (supra). It is submitted that in the instant case, since Rs.2 per sq.mtr. per annum was fixed as appropriate rent for the purpose of calculating the compensation for temporarily acquisition and the same lands subsequently came to be acquired permanently applying the multiplier of 10, the reference Court should have computed the just and fair amount of compensation @ Rs.20 per sq.mtr.
Mr.Amin, learned counsel for the appellants submitted that certain statutory increases contemplated under Section 23(1A) as well as 23(2) of the Act are integral part of amount of compensation. In the impugned judgment and award, the reference Court though awarded the interest in terms of Section 28 of the Act but it has not been specifically clarified that over and above the amount of compensation, the claimants were entitled to get statutory interest amount even on statutory increases. In support of such submission, reliance was placed in the case of Nagpur Improvement Trust V/s. Vasantrao and Others reported in (2002) 7 SCC 657.
Ultimately, Mr.Amin, learned counsel for the appellants submitted that both these groups of appeals may be allowed.
Per contra, Ms.Mathur, learned AGP representing the respondents vehemently opposed both these two groups of appeals and submitted that the amount of compensation awarded by reference Court is just and proper. There was no need for the reference Court to award the compensation as claimed by the appellants-claimants. It is submitted that in the impugned judgment and award, the reference Court has assigned cogent reasons for not accepting the claim of the appellants that their net annual income from the agriculture was Rs.8000/- to Rs.9000/- per annum. It is submitted that except the bare words of the claimants, there was no evidence in support of such claim, namely, no books of accounts were produced nor any cogent documentary evidence was produced showing the exact net annual income from the agriculture.
So far as the claim of the appellants-Claimants to award compensation on rental value method is concerned, it is submitted that there is no dispute that the agricultural lands of the appellants-claimants were initially temporarily acquired by the ONGC and earlier point of time, in the relevant reference cases, the reference Court had determined the compensation for temporary acquisition @ Rs.2 per sq.mtr. per annum. However, it is submitted that so far as these groups of appeals are concerned, the method adopted by the reference Court cannot be found fault with and the reference Court has rightly determined the just and fair amount of compensation at the rate of Rs.4 pr sq.mtr.
Ultimately, it is submitted that both these groups of appeals deserve dismissal.
I have perused the record and proceedings in context with the submissions advanced by the rival side.
At the outset, it is pertinent to note that as admitted by both the sides, the lands of the claimants were initially temporarily acquired. For the purpose of awarding compensation for temporary acquisition of their lands, Special Land Acquisition Officer offered 45 paise by way of rent per sq.mtr. per annum. The claimants felt that the amount offered by way of compensation for temporary acquisition of their lands was quite inadequate and less and therefore, preferred reference cases which were numbered and registered as Reference Case Nos. 235 to 239 of 1984. In the common judgment and award dated 18.2.1993, the reference Court enhanced the amount of compensation and the rental value of the lands temporarily acquired was fixed at Rs. 2 per sq.mtr. per annum. Before the reference Court, the claimants relied upon said earlier judgment and award passed by the reference Court. Bare perusal of the impugned judgment and award rendered by the reference Court would reveal that the reference Court did not touch this evidence and the reference Court determined the amount of compensation @ Rs.4 per sq.mtr. simply on the basis of assumption and presumption and on the basis of evidence adduced by the claimants regarding their net annual agricultural income. To put it differently, the reference Court ascertained the amount of compensation on the basis of the method known as capitalization. The rental value method which was also pressed into service by the claimants was not at all discussed in the impugned judgment and award.
In ordinary circumstances, the appellate Court would have remanded the matter to the trial Court for decision afresh since the important aspect of the evidence adduced by the party has not been touched by the trial Court. But considering the nature of the litigation and on the available material on record, when it is possible for the first appellate Court to determine the just and fair amount of compensation on rental value method, this Court, instead of remanding the old matter to the reference Court, shall determine the amount of just and fair compensation.
As stated above, so far as the amount of compensation claimed by the claimants on the basis of net agricultural annual income is concerned, it becomes clear that according to evidence of the claimants, after deducting reasonable amount towards the cost, the net annual agricultural income was Rs.8,000/- to Rs.9,000/-. To meet with such evidence, the opponent did not adduce any oral or documentary evidence. It is true that the claimants did not produce any documentary evidence showing their agricultural income. However, they did produce certain bills showing the sale of their crops. According to claimants by adopting the method of capitalization for ascertaining the just and reasonable amount of compensation, if Rs.8,000/- per annum is taken as base and applying multiplier of 10 divided 1 vigha, equivalent to 2300 sq.mtr. area of the land, which went in acquisition, according to the claimants, the compensation would have been Rs.34.78 sq.mtr per year.
Keeping the said aspect in the background and reverted back to the another method, which the claimants relied upon, namely, the rental value method, in the instant case, there cannot be any dispute by the either side that the same lands were initially temporarily acquired and competent reference Court determined the amount of compensation for the temporarily acquisition @ Rs.2 per sq.mtr. per annum. Thus, necessary data which are required for the rental value method in the instant case were already available on record. The previous award passed by the reference Court has attained the finality in the sense that nothing is submitted that the said previous award came to be challenged for enhancement either by the claimants or for reduction by the respondent. So, in the instant case, there was no need for the reference Court to determine the rent of the acquired land. That was already decided earlier by the competent reference Court itself.
In the aforesaid factual background, if Madhubhai Gobarbhai case (supra) is considered, then it transpires that so far as godown which went into acquisition in said case was concerned, the High Court had determined the amount of compensation applying rental value method by applying multiplier of 10 over the annual income of the godown. Considering para 89 in the said judgment, it transpires that so far as the value of the godown was concerned, the yearly rent was found to be Rs.1,04,000/- and the reference Court had applied multiplier of 20 but the High Court had reduced said multiplier to 10 and Hon'ble Apex Court in para-99 in the said judgment confirmed the view taken by the High Court.
Para-99 reads as under:
We are in agreement with the view that for extent of land on which the godowns stand, separate compensation need not be paid when compensation with respect to rental income is being paid for the godowns. The High Court by reason of the impugned judgment has granted compensation inter alia applying the multiplier of 10 over the annual income. The approach of the High Court is correct. In Airports Authority of India v. Satyagopal Roy and Ors., it was held that: (SCC p.530, para 8) "8. It is settled law that in evaluating the market value of the acquired property, namely, land and building or the land with fruit-bearing trees standing thereon, value of both is to be determined not as separate units but as one unit. Therefore, it would be open to the Land Acquisition Officer or the Court either to assess the land with all its advantages and fix the market value thereof on the basis of comparable sale instances. In case where comparable sale instances are not available and where there is reliable and acceptable evidence on record of the annual income, market value could be assessed and determined on the basis of net annual income multiplied by appropriate multiplier for its capitalization."
Thus, applying ratio laid down by the Hon'ble the Apex Court in Madhubhai Gobarbhai case (supra) in the instant case, the just and appropriate amount of compensation to be awarded to the appellants-claimants would be @ Rs.20 per sq.mtr. As stated above, in the instant case, the rent of the lands of the claimants had already been determined by the competent Court and according to the competent reference Court, the rent was fixed @ Rs.2 per sq.mtr. per annum. Applying the multiplier of 10, the total comes to 20 (Rs.2 multiplier x 10).
An apprehension is ventilated by Mr.Amin, learned Counsel for the appellants that in the impugned judgment and award, the reference Court though awarded statutory increases as contemplated under Section 23(1A) and 23(2) of the Act, it has not been specifically averred that such statutory increases are integral parts of the compensation and the appellants-claimants are entitled to the interest as contemplated under Section 28 of the Act not only on the principal amount of compensation but even on such statutory increases. In support thereof, reliance was placed in the case of Sunder V/s. Union of India reported in (2001) 7 SCC 211 and upon the case of Nagpur Improvement Trust V/s. Vasantrao and others reported in (2002) 7 SCC 657. In Nagpur Improvement Trust's Case (supra) in the discussion in para-29, the Apex Court referred Sunder's Case (Supra) and held that the claimants are entitled to interest even on the statutory increases and observed that the question now stands concluded by the authoritative pronouncement by Hon'ble Apex Court in Sunder's Case and held that claimant is entitled to interest on the amount of compensation worked out in accordance with the provision of Section 23 of the Land Acquisition Act including all the sub-sections thereof. Meaning thereby, sub-section (1), (1A) and (2) of Section 23. When such is the situation in this judgment, it is hereby clarified that the appellants-claimants shall be entitled to the interest as awarded by the reference Court under Section 28 of the Act on the principal amount of compensation worked out on the rate of Rs.20 per sq.mtr. as well as on the statutory increases like solatium under Section 23(2) as well as addition of 12% under Section 23(1A) of the Act. However, the amount already awarded by the reference Court in both these groups of appeals shall have to be deducted.
For the foregoing reasons, both these groups of appeals are allowed. Impugned judgments and awards rendered by the reference Court are hereby modified and the appellants-claimants shall be entitled to recover the compensation of their lands under acquisition @ Rs.20 per sq.mtr. They are also entitled to recover running interest under Section 28 of the Act as detailed in above para No.21 in this judgment. However, the amount already awarded by the reference Court shall have to be deducted. There shall be no order as to costs.
(J.C.UPADHYAYA, J.) (ashish) Top