Gujarat High Court
Special Land Acquisition Officer & vs Rabari Menaben Gobarbhai & on 18 December, 2013
Author: Jayant Patel
Bench: Jayant Patel, Sonia Gokani
C/FA/2756/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2756 of 2013
With
FIRST APPEAL NO. 2757 of 2013
TO
FIRST APPEAL NO. 2766 of 2013
With
FIRST APPEAL NO. 2767 of 2013
TO
FIRST APPEAL NO. 2774 of 2013
With
FIRST APPEAL NO. 2775 of 2013
TO
FIRST APPEAL NO. 2783 of 2013
With
FIRST APPEAL NO. 2784 of 2013
TO
FIRST APPEAL NO. 2791 of 2013
With
FIRST APPEAL NO. 2792 of 2013
TO
FIRST APPEAL NO. 2799 of 2013
With
FIRST APPEAL NO. 2800 of 2013
TO
FIRST APPEAL NO. 2812 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MS JUSTICE SONIA GOKANI
================================================================
1 Whether Reporters of Local Papers may be allowed to see
Page 1 of 37
C/FA/2756/2013 JUDGMENT
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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SPECIAL LAND ACQUISITION OFFICER & 1....Appellant(s)
Versus
RABARI MENABEN GOBARBHAI & 1....Defendant(s)
================================================================
Appearance:
MR DHAWAN JAYSWAL, AGP for the Appellant(s) No. 1 - 2
MR AV PRAJAPATI, ADVOCATE for the Or. Claimants in FA Nos.
2756,2793,2794,2798,2805,2806,2807,2811,2812 of 2013
MR HITESH B PATEL AND MR YATIN SONI, ADVOCATES for Ori. Claimants
in FA Nos.2757, 2761 to 2762, 2765, 2767 to 2774, 2775 to 2783, 2784 to
2791, 2792, 2793, 2795 to 2797, 2799, 2802, 2803, 2806 to 2810 of 2013
MR MAJUR RAJGURU, ADVOCATE for Ori. Claimants in FA Nos. 2758,
2759, 2760, 2763, 2764, 2766, 2800,2801,2780 of 2013
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 16-17-18/12/2013
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As in all the appeals, common questions arise for compensation to be awarded for the common project of the very village Gojaria, they are being considered by this common judgement. Page 2 of 37
C/FA/2756/2013 JUDGMENT
2. In the group of First Appeal No.2756 of 2013 to First Appeal No.2766 of 2013, the facts are that for project on SIPU Yojana at Village Gojaria, the Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the 'Act') was published on 3.7.2004 and Notification under Section 6 of the Act was published on 18.1.2005. Thereafter, the award was passed by the Special Land Acquisition Officer under Section 11 of the Act on 28.2.2005 and he granted compensation of Rs.10.30 per sq. mtrs., plus statutory benefits. The original claimants/land owners, as were not satisfied with the compensation, raised the disputes under Section 18 of the Act and demanded compensation at Rs.700/- to Rs.800/- per sq. mtrs. Those disputes were referred to the Reference Court for adjudication being Land Reference Case No.577 of 2009 to 587 of 2009. The Reference Court, at the conclusion of the reference, awarded additional compensation at Rs.530/- per sq. mtrs., plus statutory benefits of increase under Section 23(1A), solatium under Section 23(2) and interest under Section 28 of the Act. Under these Page 3 of 37 C/FA/2756/2013 JUDGMENT circumstances, the present appeals before this Court.
3. In the group of First Appeal No.2767 of 2013 to First Appeal No.2774 of 2013, the facts are more or less same, inasmuch as the Notification under Section 4 of the Act was published on 3.7.2004, the Notification under Section 6 of the Act was published on 26.8.2004 and the award was published on 24.9.2004 and compensation awarded was of Rs.10.30 per sq. mtrs., plus statutory benefits, but the only distinguishing fact was that the compensation demanded by the original claimants/land owners by raising disputes under Section 18 of the Act was at Rs.800/- to Rs.1,000/- per sq. mtrs. Those disputes were referred to the Reference Court for adjudication being Land Reference Case No.569 of 2009 to 576 of 2009 and the Reference Court, at the conclusion of the reference, awarded the same amount of additional compensation with statutory benefits.
4. In the group of First Appeal Nos.2775 to 2783 of 2013, the facts are common inasmuch as the date of Notification under Section 4 is 3.7.2004, date Page 4 of 37 C/FA/2756/2013 JUDGMENT of Notification under Section 6 is 26.8.2004 and the award was declared on 24.9.2004. The Special Land Acquisition Officer had awarded compensation at Rs.10.30/- per sq.mtrs for irrigated land and Rs.8.20/- per sq.mtrs for non-irrigated land. The demand for compensation was Rs.800/- per sq.mtrs and the disputes were referred to the Reference Court for adjudication in Land Reference Case Nos.543 to 551 of 2009 and the Reference Court, at the conclusion of the reference, awarded the same amount of additional compensation with the statutory benefits.
5. In the group of First Appeal Nos.2784 to 2791 of 2013, common facts are that the Notification under Section 4 was issued on 3.7.2004. The Notification under section 6 of the Act was published on 26.8.2004 and the award was passed on 24.9.2004 and the compensation awarded was of Rs.10.30/- per sq.mtrs for the irrigated land. But the dispute was raised under section 18 to get additional compensation at Rs.700/- or Rs.800/- per sq.mtrs and those disputes were referred to the Reference Court for adjudication in Land Acquisition Reference Case No.551 to 559 Page 5 of 37 C/FA/2756/2013 JUDGMENT of 2009. In this group also the Reference Court awarded the same amount of additional compensation at Rs.530/- per sq.mtrs plus the statutory benefits under section 23(1)(a), Solatium under section 23(2) and interest under Section 28 of the Act.
6. In the group of First Appeal Nos.2792 to 2799 of 2013 common facts are that the Notification under Section 4 was published on 3.7.2004 and the Notification under Section 6 was published on 26.8.2004 and the award was declared on 24.9.2004. The Special Land Acquisition Officer awarded compensation at Rs.10.30 ps per sq.mtrs for irrigated land. The disputes were raised demanding compensation at Rs.800/- per sq.mtrs. Such disputes were referred to the Reference Court for adjudication in Land Reference Case Nos.588 to 595 of 2009. The Reference Court, at the conclusion of the reference, awarded the same amount of compensation on the same statutory benefits.
7. In this group of First Appeal Nos.2800 to 2812 of 2013, the common facts are that the Notification under Section 4 was published on 3.7.2004. The Page 6 of 37 C/FA/2756/2013 JUDGMENT Notification under section 6 of the Act was published on 26.8.2004 and the award was passed on 24.9.2004 and the Land Acquisition Officer awarded compensation at Rs.10.30/- per sq.mtrs for irrigated land. But the demand for compensation under Section 18 was Rs.700/- or Rs.800/- per sq.mtrs and such disputes were referred to the Reference Court for adjudication in Land Reference Case Nos.596 to 607 of 2009 and Land Reference Case No. 922 of 2009. The Reference Court at the conclusion of the reference passed the award for the same amount of additional compensation with the statutory benefit under section 23(1)(a), 23(2) and interest under section 28 of the Act. Under the circumstance, the present appeals before this Court.
8. We have heard Mr. Jayswal, learned Assistant Government Pleader, appearing for State Authorities in all the appeals, Mr. Yatin Soni with Mr. Hitesh Patel, learned Advocates in First Appeal Nos.2757, 2761 to 2763, 2765, 2767 to 2774, 2775 to 2783, 2784 to 2791, 2792, 2793, 2795 to 2797, 2799, 2802, 2803, 2806 to 2810 of Page 7 of 37 C/FA/2756/2013 JUDGMENT 2013, for the original claimants, Mr. Mayur Rajguru, learned Advocate in First Appeal Nos. 2758, 2759, 2760, 2763, 2764, 2766, 2800,2801,2780 of 2013 for the original claimants and Mr. A.V. Prajapati, learned Advocate in First Appeal Nos.
2756,2793,2794,2798,2805,2806,2807,2811,2812 of 2013, for the original claimants.
9. We have considered the judgment and the reasons recorded by the Reference Court and we have also considered the relevant documentary evidence as well as other decisions of this Court, which have been made available by the learned counsel appearing for both the sides during the course of hearing.
10. We may, at the outset, record that the Reference Court has applied practically same reasonings in all the matters for the purpose of awarding compensation, and therefore, in the present judgment, we may not be required to deal with the facts of each group of matters separately and the common factor is that the date of the Notification is of the year 2004 and notification under Section 6 is also of the year Page 8 of 37 C/FA/2756/2013 JUDGMENT 2004. All the lands are located at village Gojaria and the acquisition is for the common project of SIPU Irrigation Scheme.
11. The perusal of the judgment of the Reference Court shows that the Reference Court has found that the report of the valuer examined as an expert at Exh.29 Shri Pravinchandra Keshavlal Desai with his report at Exh.31 is not proper since the valuer had not considered the important aspect of the earlier judgment of the Reference Court for acquisition of the land at village Gojaria and of village Samau. It also appears that for the purpose of ascertainment of the compensation, the Reference Court was mainly guided by the valuation fixed by the Valuation Committee for allotment of the land at village Gojaria through the District Collector to Telecom Department and based on the same, after making deduction of 40%, he has arrived at the figure for additional compensation by subsequently making addition of appreciation for two years and then has reached to the figure of assessment of the market value at Rs.540/- per sq.mtrs on the date of the Notification under Section 4 of the Page 9 of 37 C/FA/2756/2013 JUDGMENT Act.
12. Mr. Jayswal, learned Assistant Government Pleader has contended that village Gojaria is just located at a distance of 5 kms away from village Solaiya and for the acquisition of the land at village Solaiya, the disputes were raised for additional compensation and such disputes were referred to the Reference Court for adjudication. The State had preferred appeals being First Appeal No.2293 of 2013 and allied matters and this Court has confirmed the amount of compensation awarded by the Reference Court at Rs.248/- per sq.mtrs. He submitted that the date of Notification under Section 4 in those matters was also on 17.8.2004 and he submitted that if the aforesaid decision is taken into consideration, it can be said that Reference Court awarded additional compensation substantially higher than the market price. In his submission even if the appreciation is added and the market value is considered to the extent of 10% more in comparison to village Solaiya of the same taluka, on account of the development of village Gojaria, in comparison to village Page 10 of 37 C/FA/2756/2013 JUDGMENT Solaiya, the additional amount of compensation awarded by the Reference Court cannot be maintained. He, therefore, submitted that this Court may appropriately reduce the amount of additional compensation.
13. Whereas, learned counsel for the appellant raised the various contentions, which shall be dealt with later on but the principle contention was that, that there was already valuation report of expert body for the allotment of the land to Telecom Department by the District Collector. The Reference Court has rightly made the deduction of 40% and the figure arrived at by the Reference Court appears to be just and proper. It was submitted that when the sale instance for allotment of the land by the State Government to the Telecom Department of the Central Government was already available, it may not be required for this Court to consider the aspects of market value for the adjoining land either of village Solaiya or may be of taluka: Mansa, even if this Court has confirmed a particular amount of compensation or has assessed the market price and fixed the amount of additional compensation. Page 11 of 37
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14. In the submission of learned counsel for the original claimants, all the appeals are meritless and deserve dismissal.
15. We may first consider the aspects of consideration of the judgment for fixation of the amount of compensation by this Court for adjoining land. In the decision of this Court in First Appeal No.2293 of 2013 and allied matters for the acquisition of the land at village Solaiya, this Court has taken into consideration its earlier decision in First Appeal No.3020 of 2011 and allied matters for acquisition of the land at village Itadhara, Taluka: Mansa for the project of 'Sujlam Suflam Spreading Canal'.
16. In the said decision, this Court at paragraph 7 had observed inter alia as under:-
"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 Page 12 of 37 C/FA/2756/2013 JUDGMENT Court." (Emphasis supplied)
17. 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 the same was not brought to the notice of the Reference Court. The decision of the Reference Court for acquisition of land of village Solaiya in First Appeal No.2293 of 2013 and allied matters, is in any case later to the impugned award passed by the Reference Court which is on 9.8.2012. Therefore, two situations may arise. One is that since the judgment of this Court dated 2.9.2013 in First Appeal No.2293 of 2013 was not in existence on the date when the Reference Court passed the impugned awarded, there was no question of its considering the same. Second is that in view of the above referred observation of this Court, in First Appeal No.3020 of 2011, it can be said that the decision of this Court for fixation of the price of the land for any acquisition project in the nearby area can be taken into consideration. Under the Page 13 of 37 C/FA/2756/2013 JUDGMENT circumstances, the contention raised that this Court may not take into consideration the decision of the acquisition of the nearly land or decision of this Court for acquisition of the land at village Soliya in First Appeal No.2293 of 2013, cannot be accepted.
18. Mr. Soni, learned counsel appearing in some of the group of First Appeals made an attempt to contend that even if the decision of this Court for acquisition of land at village Solaiya were to be taken into consideration, such decision could be considered only if proper opportunity is given to the original claimants to show the distinction in the land of village Solaiya and the land of village Gojaria. Unless such an opportunity is given, the said decision for acquisition of the land at village Solaiya would lose its significance and, if considered, at this stage, would affect the rights of the original claimants.
19. In our view, the contention is misconceived inasmuch as this Court has not said in the above referred observation that the decision for fixation of the market price should be followed Page 14 of 37 C/FA/2756/2013 JUDGMENT in every case. But what is observed by this Court is that such decisions for the fixation of the market price of the adjoining area or the nearby villages can be considered. Therefore, it may be that after considering the judgment for fixation of the market price of the land of the nearby village, less weightage may be given but thereby it cannot be said that such decision cannot be considered at all.
20. The perusal of the map produced with the list of the documentary evidence at Exh.28 in the Land Reference Case Nos.182 to 190 of 2006 and Land Reference Case Nos. 353 of 2006 (First Appeal No. 2756 of 2013 and allied matters), shows that after the village Solaiya, there is village Amarpura, then Samau and then comes village Gojaria. Therefore, two villages are located in between, but, the pertinent aspect is that at the time when the Notification under Section 4 of the Act was issued, village Gojaria was falling in the area of Mansa taluka and so was village Solaiya. If the location of village Solaiya is considered, it is nearer to Mansa taluka town in comparison to village Gojaria. Be Page 15 of 37 C/FA/2756/2013 JUDGMENT that as it may, the facts remain that for acquisition of the land at village Solaiya, this Court has confirmed the additional compensation at Rs.248/- per sq.mtrs. If the distance from taluka town Mansa is considered with of village Gojaria, one may say that village Solaiya is better located since it is nearer to Mansa town in comparison to village Gojaria since the location of village Gojaria is after crossing two above referred villages from village Solaiya.
21. Under the circumstance, if the matter is considered as it is, based on the compensation fixed for acquisition of the land at village Solaiya, it can be said that the market value in the year 2004 would not be in any case less than Rs.248/- plus Rs.13/- (as awarded by the Special Land Acquisition Officer) in the case of village Solaiya, total amount of compensation comes to Rs.261/- per sq.mtrs.
22. It was next contended by the learned counsel for the claimants that when the valuation report for allotment of the land by the District Collector to the Telecom Department was available, the same can be treated as a sale Page 16 of 37 C/FA/2756/2013 JUDGMENT instance and no bona fide could be doubted of the transaction, since it was by the State Government to the Central Government. He submitted that the expert body i.e. the Valuation Committee of the State Government had assessed the market value at Rs.750/- per sq.mtrs for the land admeasuring 1000 sq.mtrs and such could be said as the best evidence of the sale instance of the land at the very village Gojaria which is prior to two years from the date of Notification under Section 4 of the Act. Learned Judge in view of the decision of this Court in the case of State of Gujarat through Spl.Land Acquisition Office and Anr. vs. Amaji Mohamji Thakore reported in 2010(3) GLH 447 has rightly assessed the market value of the land under acquisition.
23. It was also contended that in addition to the valuation made by the Valuation Committee of the State Government for allotment of the land to the Telephone Department, the valuer Mr.Pravinchandra Keshavlal Desai, who is a Government approved valuer, was also examined at Exhibit 30 and in his deposition, he has produced the valuation report dated May 11, 2009, wherein Page 17 of 37 C/FA/2756/2013 JUDGMENT he assessed the market value of the land at Rs.521/- per sq.mtr. It was submitted that the learned Judge has discarded the valuer's report in the impugned judgment, but as per him, this Court can consider the evidence of the valuer for the purpose of considering the market value. In the submission of Mr.Soni, as against the market value assessed by the valuer at Rs.521/- per sq.mtr., the Reference Court has awarded an amount of Rs.530/- per sq.mtr. and, therefore, it cannot be said that the compensation awarded is on higher side.
24. We may first consider the valuation report as referred to in the order of the Collector for allotment of land to the Telephone Department. We may also clarify that there cannot be any different view than the view taken by this Court in the case of State of Gujarat (supra) for consideration of the valuation made by the Government valuer for allotment of the land to any citizen. However, before we further consider the decision of this Court in the case of State of Gujarat (supra), it would be necessary to consider the facts of the present case and the Page 18 of 37 C/FA/2756/2013 JUDGMENT evidence on record. The order for allotment of land was produced together with the deposition of original claimant's witness at Exhibit 66 and Rameshkumar Mithabhai Patel was examined as a witness, who was functioning as the Town Planner in Mehsana. As per him, the Valuation Committee had made the valuation of the land on July 30, 2002 at Rs.750/- per sq.mtr. However, the contents of the valuation report or the opinion of the Valuation Committee and the criteria on the basis of which the valuation was made by the Valuation Committee, has not come on record and the only reference is made in the order of the Collector for meeting of the Valuation Committee dated July 30, 2002, for valuation of the land at Rs.750/- per sq.mtr. Under the circumstances, before full weightage is given, all material aspects on the basis of which the valuation has been made by the Valuation Committee have not come on evidence. The second aspect is that the area is 1000 sq.mtrs. only, as against the acquisition under consideration in the present case. The list and details of area under acquisition in each case show that about 66% to Page 19 of 37 C/FA/2756/2013 JUDGMENT 67% acquisition of land is more than 1000 sq.mtr. and not only that but out of the same, in majority of cases, they are above 2000 sq.mtrs. and out of the same about 1/3rd is more than 3000 sq.mtrs. to 4000 sq.mtrs. If the largest area is considered under acquisition, it may be about five times than the land allotted to the Telephone Department and the lowest area exceeds 1000 sq.mtrs., may be about 2000 sq.mtrs. Therefore, we find that it would be appropriate to apply the principle of averaging out the area and, hence, roughly it can be said that the area in question may be around 2.5 times in comparison to the area allotted by the Collector to the Telephone Department. The aforesaid aspects may assume importance when the Court is to consider the deduction to be made under the head of smallness and largeness of the area after taking into consideration the valuation of the Valuation Committee.
25. Another aspect would be the distance factor and the location of the land under acquisition and the location of the land, which is allotted to the Telephone Department. As per the sketch, Page 20 of 37 C/FA/2756/2013 JUDGMENT it is apparent from the order of the Collector also that the land allotted to the Telephone Department is a part of village site of village Gojaria, whereas the lands under acquisition are located outside the village site at a distance of about one kilometre away from the boundary of the village site, but within the revenue limits of village Gojaria. It is hardly required to be stated that there would be difference in the market value of the land located inside the village site and outside the village site and the reason being that the basic infrastructural facilities as that of roads, streetlights, etc. may be available over the land located inside the village site, whereas such facilities would not be available at a place where only agricultural lands are located. Therefore, it can reasonably be considered that the market value of the land located outside the village site would be at least 15% less in comparison to the land located inside the village site. Further, in any case, the distance factor may assume importance for the purpose of appropriate deduction to be made. If one considers the distance as per the sketch, it Page 21 of 37 C/FA/2756/2013 JUDGMENT is about a kilometre away, but if one considers by the location of the field, there are about six to seven Survey Numbers of the agricultural lands located in between the land which has been allotted to the Telephone Department and the land under acquisition. Mr.Soni is right in his submission that near to the land under acquisition, GIDC Estate is located and the said aspect is also reflected from the map shown of Gojaria village. Therefore, we find that the distance factor if is minus but considered with plus factor of location of the land nearby GIDC Estate, no deduction may be called for distance factor. The claimant could have led evidence for the price fixed by the GIDC for allotment of the land to the person to whom the land has been allotted by the GIDC, but no such evidence is produced. Therefore, we find that such aspects of the location of the GIDC Estate at the most would help the claimant to get reduction under the head of distance factor nullified for the purpose of assessment of the market value.
26. We may now consider the decision of this Court in the case of State of Gujarat (supra). In Page 22 of 37 C/FA/2756/2013 JUDGMENT the said case there were two valuation reports for allotment of different parcels of the land by the Collector; one was for Rs.224/- per sq.mtr. and another was for Rs.800/- sq.mtr., but the Reference Court had relied upon the valuation report of the allotment of the land for Rs.224/- per sq.mtr. Further, the area allotted was one hectare i.e. 10,000 sq.mtrs. and the facts before the Court were that no deduction was required to be made under the head of smallness or largeness of the acquisition since the allotment of the land was for 10,000 sq.mtrs. With the said distinction in mind, if one further considers the valuation report, the additional deduction may be called for in the present case than as was considered by this Court in the above referred decision in the case of State of Gujarat (supra). The deduction for N.A. factor to the extent of 30% as was held by this Court in the aforesaid decision will, in any case, be required to be considered for finding out the market value.
27. As observed by us hereinabove, the full details of the method and manner of valuation of the land have not come on record. However, even Page 23 of 37 C/FA/2756/2013 JUDGMENT if the contention is considered for the sake of examination, the valuation report is for Rs.750/- per sq.mtr., out of which 30% would be required to be deducted towards N.A. factor plus 15% would be required to be deducted towards location of the land outside the village site. Further additional deduction of 15% would be appropriate taking into consideration the largeness and smallness. In all, such deduction would be 60% to the valuation of the land allotted to the Telephone Department. Such amount of 60% would come to Rs.450/- per sq.mtr. and if deduction from Rs.750/- per sq.mtr. is made, the net amount would come to Rs.300/- per sq.mtr. The aforesaid was the valuation in the year 2002, whereas the acquisition was in the year 2004 and, therefore, appreciation if considered at 20%, the amount would come to Rs.360/- per sq.mtr., after the criteria of valuation report made for allotment of land to Telephone Department is considered.
28. As such the Reference Court has discarded the valuation report of Mr.Prakashchandra K. Desai examined at Exhibit 30 on the ground that the said valuer has not taken into consideration Page 24 of 37 C/FA/2756/2013 JUDGMENT the compensation awarded by the Reference Court for acquisition of the land at village Gojaria, where the present lands are located. A contention was raised by the learned counsel for the original claimant that when in the subsequent reasonings recorded by the Reference Court in the impugned judgment, the said decision for acquisition of the land of village Gojaria and the compensation awarded therein 14 years back was found unreliable, merely because the valuer has not considered the said aspect, the Reference Court was not right in discarding the valuer's report.
29. It is true that the valuer has not considered the compensation awarded for acquisition of the land at village Gojaria and the Reference Court in the subsequent reasons has found that the decision of the Reference Court for compensation for acquisition of land at village Gojaria was 14 years back and, therefore, could not be relied upon, but at the time when the Court gives weightage to the opinion of any expert, the matter cannot be examined on the ground as sought to be canvassed by Mr.Soni. The Page 25 of 37 C/FA/2756/2013 JUDGMENT judicial scrutiny in the expert's opinion in the matter of giving weightage to the expert's opinion would be whether the expert who has given opinion has taken all care and caution and has undertaken all necessary steps before giving opinion or not. Such degree of taking caution and necessary steps would be more in comparison to an ordinary person who is not an expert in the field. It is with that vision one has to scan the expert's opinion and thereafter, to give due weightage, if required. Had it been a case where the expert had considered the decision and did not rely upon for valid reasons, the decision of the Reference Court for acquisition of the land at village Gojaria and had not relied upon the same by valid reasons, the matter would have been different, but in the present case, neither the claimants who requested the valuer to submit the report have supplied the information nor has the valuer undertaken any exercise to visit the revenue office to find out the compensation awarded, if any, for any acquisition of the land at the very village. In the cross-examination, the said witness-valuer has stated that he has Page 26 of 37 C/FA/2756/2013 JUDGMENT not undertaken the valuation in presence of Talati or Sarpanch and it has also stated that at the time when the valuation was undertaken, he has not mentioned 'Aanavari'/ yield of the land. Had he visited the revenue office, possibly he would have known the yield over the land in question so as to calculate the return or to undertake the capitalization method for the market value.
30. Further, in the valuation report, there is no separate reference for the location of the property that nearby GIDC Estate is located. He has stated in the examination-in-chief that he had visited the place. Had he visited the said place, possibly the said important aspect ought not to have been missed by him. Further, even in the map of the village and revenue limits of Gojaria, there is specific identification of the land of GIDC Estate. Not only that but as an expert for the purpose of valuation, the valuer ought to have found out the price at which GIDC had located the land in the said estate. No such effort is made, nor such material is found out by him to get the information about such aspect and Page 27 of 37 C/FA/2756/2013 JUDGMENT consequently to consider the market value of the land. Under these circumstances, we find that the report given by the valuer, Shri Desai cannot be relied upon as an expert opinion for the purpose of getting support of the market value of the land. Hence, the ultimate conclusion recorded by the Reference Court for the report of the valuer as not reliable or should not be relied upon cannot be said to be erroneous on the ground as sought to be canvassed by the learned Counsel for the appellants. Hence, we find that the material of valuation report would be of no help to the claimants for asserting or showing that the market value of the land was Rs.521/- per sq. mtrs.
31. Apart from the above, it further appears that it is an admitted position that the location of the land is at Village Gojaria, which is a village of Mansa Taluka, District Gandhinagar at the time when Notification under Section 4 of the Act was published. Mansa being a Taluka Town in normal circumstances, development of Mansa would be more in comparison to a village of such Taluka having population of about 15000 persons. Such Page 28 of 37 C/FA/2756/2013 JUDGMENT aspect is also reported by the valuer in the valuation report as well as the said aspect is reflected from the map and the other details submitted on behalf of the claimants, and it is so mentioned in the award of the Special Land Acquisition Officer. Mansa is located at 18 kms away from village Gojaria, where the lands in question are located. The lands at Mansa were also acquired by the Notification under Section 4 of the Act dated 26.8.2004 and in such acquisition, awards were passed by the Special Land Acquisition Officer and he had awarded compensation at Rs.25/- per sq. mtrs., and in the said matter also the land owners - original claimants had raised the dispute under Section 18 of the Act and had demanded compensation at Rs.800/- per sq. mtrs., and the Reference Court had awarded compensation at Rs.560/- per sq. mtrs. The State Government, through the Special Land Acquisition Officer, had carried the matter in First Appeal No.3397 of 2009 and allied matters, which came to be decided by this Court vide order dated 28.4.2011 and this Court ultimately found that for Mansa, the market value Page 29 of 37 C/FA/2756/2013 JUDGMENT should be Rs.373/- per sq. mtrs., but as in the said case, the amount of Rs.25/- per sq.mtrs., was already awarded as compensation, this Court confirmed additional compensation at Rs.348/- per sq. mtrs. We may record that in the said decision also, the valuation report was submitted for the valuation of the land, but was not accepted by the Reference Court and the Reference Court had assessed the market value thereafter. This Court, in the above referred decision, for acquisition of the land at village Mansa, observed from paragraphs 4 to 10 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 Page 30 of 37 C/FA/2756/2013 JUDGMENT 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 Page 31 of 37 C/FA/2756/2013 JUDGMENT 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 810 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 Page 32 of 37 C/FA/2756/2013 JUDGMENT 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 Page 33 of 37 C/FA/2756/2013 JUDGMENT 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.
32. Therefore, the resultant effect is that for Taluka Town of Mansa in the year of 2004, for acquisition, this Court has assessed the market value at Rs.373/- per sq. mtrs., but the distinguishing aspect, as observed by the Court in the above referred decision at paragraph 10 was that since Mansa was a Taluka Town, 10% appreciation was considered in the market value in comparison to market value arrived at for the land at Rs.339/- per sq. mtrs. As such, it cannot be gainsaid that the market value of Taluka Town would be more or that the market value of Gojaria of Mansa taluka would be less. As observed by us earlier, normally it would be little less in comparison to the market value of the land of Taluka Town. As referred to herein above for Mansa Taluka Town, the market value was assessed at Rs.373/- per sq. mtrs., in a case where the Notification under Section 4 was Page 34 of 37 C/FA/2756/2013 JUDGMENT published on 26.8.2004. Further as per the discussion made by us after considering the valuation made by the Valuation Committee for the allotment of the land to the Telephone Department, the market value has been arrived, of the land in question, at Rs.360/- per sq. mtrs. If the principle of little less in comparison to the market value of Mansa Town is considered, it can be said that appropriate market value of the land in question would be Rs.360/- per sq. mtrs., which would be, in any case, a little less than Rs.373/- as assessed by this Court in the above referred decision for acquisition of the land at Mansa, which is Taluka Town.
33. Mr.Soni, learned Counsel appearing for the original claimants in majority of the matters, contended that the decision of this Court for acquisition of the land at Mansa in First Appeal No.3397 of 2009 is carried before the Hon'ble Apex Court and he submitted that the SLP is pending. However, he fairly conceded that the judgement is not stayed.
34. Under these circumstances, we find that if the judgement in First Appeal No.3397 of 2009 is Page 35 of 37 C/FA/2756/2013 JUDGMENT not stayed, this Court can take into consideration the decision while deciding the other matters.
35. The other benefits granted by the Reference Court for the increase in market price under Section 23(1A), solatium under Section 23(2) and the interest under Section 28 of the Act are by way of statutory consequence, with which, we are not inclined to interfere, but with the observations that on account of the reduction of the principal amount of additional compensation, such amount would get proportionately reduced.
36. In view of the aforesaid observations and discussion, the judgement and award passed by the Reference Court for awarding compensation, exceeding Rs.360/- per sq. mtrs., is quashed and set aside. It is held that the original claimants/land owners would be entitled to the additional compensation at Rs.360/- per sq. mtrs. The original claimants shall also be entitled to increase in the market value under Section 23(1A), solatium under Section 23(2) and interest under Section 28 of the Act on the aforesaid principal amount of additional compensation. Page 36 of 37
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37. All the appeals are partly allowed to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs.
(JAYANT PATEL, J.) (MS SONIA GOKANI, J.) vinod/sudhir/akar Page 37 of 37