Gujarat High Court
Special vs Lilavatiben on 4 July, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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FA/1153/2002 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No.1153 of 2002
To
FIRST
APPEAL No.1172 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL Sd/-
HONOURABLE
MR.JUSTICE R.M.CHHAYA Sd/-
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To
be referred to the Reporter or not ?
NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5
Whether
it is to be circulated to the civil judge ?
NO
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SPECIAL
LAND ACQUISITION OFFICER - Appellant(s)
Versus
LILAVATIBEN
KODAR RANCHHOD & 4 - Defendant(s)
=====================================================
Appearance
:
MS MOXA THAKKAR, AGP for
Appellant(s) : 1,
MR MEHUL S SHAH for Defendant(s) : 1 - 5.
MR
SURESH M SHAH for Defendant(s) : 1 -
5.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 04/07/2011
COMMON
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) As all the appeals arise from the common judgment and order passed by the Reference Court, they are being considered by this common judgment.
The relevant facts of the case are that for the project of Dadhod Outside City Diversion Road, lands located at Dahod Kasba outskirts of Dahod city within the municipal area were to be acquired under the Land Acquisition Act, 1894 (hereinafter to be referred to as 'the Act'). Notification under Section 4 of the Act was published on 11.10.1985 and notification under section 6 of the Act was published on 05.09.1986. Thereafter award was passed by the Land Acquisition Officer under section 11 of the Act on 26.06.1988 whereby, on account of different fertility, topography and location of the lands, he awarded Rs.8/sq.mtr. for the fertile land, Rs.6/sq.mtr. for Jirayat land and Rs.4/sq.mtr. for the other remaining land. As the lands owners/original claimants were not satisfied with the said compensations, they raised dispute under section 18 of the Act and demanded compensation of Rs.70/sq.mtr. and subsequently enhanced the demand to Rs.250/sq.mtr. All such disputes were referred to the Reference Court for adjudication being Land Acquisition Case Nos.283/89 to 304/89. The Reference Court, at the conclusion of the references, awarded the additional compensation at Rs.45/sq.mtr. with other statutory benefits of increase in the market value, solatium and interest. It is under these circumstances, the present group of appeals before this Court.
We have considered the judgment and the reasons recorded by the Reference Court as well as record and proceedings and we have also heard Ms.Moxa Thakkar, learned A.G.P. for the appellants and Mr.Mehul Shah for the original claimants/respondents.
The perusal of the reasons recorded by the Reference Court show that the main reasoning begins from Paragraph No.16 of the judgment and the Reference Court has broadly discarded the evidence of sale instances, including one which was produced at Exh.72 for the land, admeasuring 534.38 sq. mtrs. wherein the price was of Rs.93.156/sq.mtr., on the ground that such sale instance was for non-agricultural land used for residential area. However, the another pertinent aspect is that the Reference Court, while arriving at the finding for the additional compensation at Rs.45/sq.mtr. has not elaborated the reasons for arriving at the said figure of Rs.45/-sq.mtr. Therefore, we find that even if the Reference Court was to arrive at the figure of Rs.45/-sq.mtr. as the additional compensation, it was expected from the Reference Court to examine the facts and figures as available, including the sale instances or otherwise and thereafter to record the conclusion for the quantum of the additional amount of compensation. Unfortunately, the said aspect is not available in the impugned judgment of the Reference Court.
However, as the present appeals are continuous proceedings of the reference to be adjudicated by the Reference Court and we have called for the record and proceedings, we find that the only sale instance, which could be considered for the purpose of tracing the market value of the lands, is the document Exh.72 dated 20.06.1983, which is for the land bearing Survey No.754/4 paiki and the area of which is admeasuring 534.38 sq.mtrs. Another aspect is that the sale deed is prior to the notification under section 4 of the Act in the present case and, therefore, the same could be taken into consideration by the Reference Court. We are inclined to observe the aforesaid because there was no other satisfactory evidence either to applying the yield method or of any other awards passed by any competent court for the land of the adjoining area in the matter of land acquisition. It is also required to be taken into consideration that merely because the sale instances are of the lands, which are non-agricultural lands, the same itself will not be a sufficient ground to discard the evidence unless the Reference Court finds that the sale instances are not of the lands of the comparable area. The area in the present acquisition varies from 151 sq.mtrs. to 5059 sq.mtrs. and if the holding of each claimant is to be considered vis-a-vis the area under acquisition, the land acquired of about 40% of the claimants is not exceeding 700-800 sq.mtrs. Under these circumstances, we find that it was a case to consider the sale instances even after considering the character of the land of the sale instance as non-agricultural land. At this stage, we may refer to the decision of this Court in case of State of Gujarat, Through Special Land Acquisition Officer & Anr., Vs. Amraji Mohanji Thakore, reported in 2010 (3) G.L.H. 447 wherein there was sale instance of more or less similar area and, therefore, the court applied the principle of 30% deduction while comparing the price of non-agricultural land but the relevant aspect is that in the said decision this Court extracted the earlier view of this Court in case of Sardar Sarovar Vs. Patel Haribhai Manilal, in First Appeal No.2832 of 2006 to 2843 of 2006 decided on 09.07.2007 and it was recorded as under:
"14. Before we proceed to examine the other aspects, we may profitably extract the views of this Court (Coram: J.M.Panchal & Smt. Abhilasha Kumari, J.J.) in the case of Sardar Sarovar Narmada Nigam Limited v. Patel Haribhai Manilal (First Appeal No.2832 of 2006 to 2843 of 2006) decided on 9.7.2007.
In the said case, the sale instances considered by the Special Land Acquisition Officer were not proved and there was sale instance for allotment of the land by the Government to Anarde Foundation and the land under acquisition was also at Village Modhera. When the question arose for determination of the market price of the land in question therein, for the purpose of awarding compensation by the Reference Court, this Court observed as under at paragraph 12 :-
"12. The principles governing determination of market value of lands acquired are well-settled. In Special Land Acquisition Officer, Davangere v. P.Veerabhadrappa etc. etc. - AIR 1984 SC 774, the Supreme Court has emphasized that the function of the Court in awarding compensation under the Act is to ascertain the market value of the land on the date of notification under Section 4(1) of the Act. What is ruled therein is that the methods of valuation are (1) opinion of experts, (2) the prices paid within a reasonable time in bona fide transactions of purchase or sale of the lands acquired or of the lands adjacent to those acquired and possessing similar advantages and (3) a number of years' purchase of the actual or immediately prospective profits of the lands acquired. The Supreme Court has cautioned that normally, the method of capitalizing the actual or immediately prospective profits or the rent of a number of years' purchase should not be resorted to if there is evidence of comparable sales or other evidence for computation of the market value. Applying these principles to the facts of the instant case, this Court finds that the claimants did not lead evidence of an expert nor enhanced compensation was claimed on yield basis to enable the Court to determine the market value of the lands acquired. The only relevant pieces of evidence produced by the claimants in the instant case are the sale-deeds relating to the grant of Government lands to Anarde Foundation at Ex.13 and to Umiya Kadva Patidar Trust at Ex.17 which will now be examined by this Court.
Exhibit 13 is the order of Collector, Mehsana, dated December 4, 1994, whereby land admeasuring 501.66 sq.mts. forming part of Survey No.1119 of village Modhera was granted to Anarde Foundation pursuant to an application made by it for allotment of land for construction of office premises for development programme which was undertaken by the said Foundation in rural areas. A perusal of Ex.13 reveals that the land allotted to Anarde Foundation vide order dated December 4, 1994, was non-agricultural land. Initially, this land was allotted at the rate of Rs.40/- per sq.mt. However, it was stipulated in the said order that the market value of the land on the date of order, i.e. December 4, 1994, would be one which would be determined by the Deputy Town Planner and the price so determined would be considered to be relevant market value. The record reveals that the market value of the land allotted to Anarde Foundation was determined at Rs.65/- per sq.mt., which is quite evident from the order dated September 21, 1998, passed by the Collector, Mehsana, produced at Ex.14.
The other sale instance relied upon by the claimants is to be found at Ex.17, which relates to sale of Government land to Umiya Kadva Patidar Trust. Exhibit 17 further shows that the Collector passed an order in this regard on October 16, 1998 and the market value of the land admeasuring 186 sq.mts. of part of Survey No.1245 of village Modhera, Taluka: Becharaji, was determined at the rate of Rs.160/- per sq.mt. On re-appreciation of evidence on the record, this Court finds that the notification under Section 4(1) of the Act in the instant case was published in the official gazette on July 27, 1995, whereas the sale instance at Ex.17 regarding allotment of Government land to Umiya Kadva Patidar Trust was effected after publication of said notification and therefore, post notification instance should not be taken into consideration while determining the market value of the lands acquired as it is common knowledge that the prices of lands in the vicinity would escalate after the notification under Section 4(1) of the Act is published."
15. Further in the very decision, when the Court had to consider the market value, keeping in view the sale instances of the allotment of the land by the Government to the aforesaid Trust, it was observed, thus, at paragraphs 17 and 18 :-
"17.In the ultimate analysis, this Court is of the opinion that the allotment of land vide order dated December 4, 1994, produced at Ex.13 passed by the Collector, Mehsana, is the only relevant piece of evidence which would enable the Court to determine the market value of the acquired lands. It is well-settled that for determination of compensation for a large area, rate fixed for smaller plot can be taken into consideration when there is absence of other material evidence (See: Ravinder Narain and another v. Union of India (2003)4 SCC 481).
Therefore, this Court proposes to consider effect of Ex.13. As noticed earlier, the order allotting land dated October 16, 1998 (Ex.17) cannot be considered since it was passed after the issuance of the notification under Section 4 of the Act in the present acquisition proceedings. Exhibit 13, which is the order regarding grant of Government land to Anarde Foundation indicates that the lands which were subject matter of grant were non-agricultural lands. Moreover, the piece of land was small compared to the acquired lands. Therefore, appropriate deductions will have to be made on account of the fact that the acquired lands in the instant case were agricultural lands and large tracts of lands were acquired.
It is a settled principle of law that where the acquired lands are agricultural lands, their valuation would differ to a considerable extent from the lands which are non-agricultural lands and that where a large area of land is subject matter of acquisition, certain deductions will have to be made if the market price of the acquired lands has to be determined on the basis of rate fixed for small plots. Moreover, some amount will have to be deducted towards development charges. After making deductions on the above counts, the market value of the lands acquired will have to be determined. Keeping the above principles in mind, this Court is of the opinion that interest of justice would be served if 40% from the market price of the land which was subject matter of sale vide Ex.13 as on December 4, 1994, is deducted under the heads of smallness of plot, non-agricultural land and development charges collectively while determining the market value of the lands acquired in the instant cases. The market value of the land granted vide order dated December 4, 1994, has been determined at Rs.65/- per sq.mt. After deducting 40% from this amount, the amount that comes is Rs.39/- per sq.mt. The said sale took place vide order dated December 4, 1994, whereas the notification under Section 4 of the Act for the acquisition of lands of village Modhera was published on July 27, 1995. Therefore, there is a gap of about six months between the two. If 5% rise in price of land is given, the amount comes to Rs.41/- per sq.mt. which is the total amount of compensation to which the claimants are entitled. Thus, this Court is of the opinion that the claimants would be entitled to compensation at the rate of Rs.41/- per sq.mt. and not at the rate of Rs.54.57 ps. per sq.mt. as held by the Reference Court.
18. In view of the above discussion, the Appeals will have to be partly allowed by holding that the claimants in the instant cases would be entitled to compensation in all at the rate of Rs.41/- per sq.mt. and to that extent, the Award rendered by the Reference Court will have to be modified."
16. The aforesaid shows two aspects; one is that the sale instance or the price at which the Government has allotted the land can be taken into consideration by the Reference Court at the time of assessing the market value for the purpose of awarding compensation under the Act, and the second is the deduction to be made keeping in view the size of the plot allotted by the Government and the land under acquisition, the nature of use, the locality and other factors namely; that agricultural use, non-agricultural use and others. It is true that in the said case, this Court found it proper to deduct 40% of the amount from the price at which the Government had allotted the land to the said Trust, but it appears that certain aspects, which did not arise for consideration in the said matter, do arise for consideration in the present group of matters, which shall be dealt with hereinafter."
We find that the observations made in the above referred decision would squarely apply to the facts of the present case keeping in view that 60% of the lands under acquisition are of a much larger area and only 40% of the lands under acquisition are not exceeding about 700-800 sq.mtrs. Therefore, if the aforesaid sale instance at Exh.72 is taken into consideration and 40% deduction is made in the said sale price of Rs.93/sq.mtr. (rounded figure), 40% of the said amount would come to Rs.37.20/sq.mtr., which if deducted from Rs.93/sq.mtr. the net figure would come to Rs.55.80/sq.mtr. and if rounded off it would come to Rs.56/sq.mtr. It is also required to be taken into consideration that as observed earlier in respect of 60% of the lands, which are under acquisition, the area is much larger and, therefore, in addition to the deduction of N.A. factor area is the difference between agricultural and non-agricultural lands, the additional deduction would be required to be made qua the large difference of the size of the lands, which are to be acquired and the size of the plot which is referred to in the sale instance. Therefore, we find that considering the facts and circumstances out of the amount of Rs.56/sq.mtr. there should be additional deduction of 20% towards the size difference of the plots and if the largest plot is considered, it is about 9-10 times more than the area of the land shows in the sale deed. So 20% of the said amount would come to Rs.11.20/sq.mtr. and if deducted from Rs.56/- it would come to Rs.44.80/- and if the said figure is rounded off, it would come to Rs.45/sq.mtr. As against the same the Reference Court has awarded Rs.45/sq.mtr. as the additional compensation. Under the circumstances, we find that the decision of the Reference Court for awarding Rs.45/sq.mtr. as the additional compensation for the land in question, which is having best quality viz. fertile land, could not be said as erroneous.
However, the same cannot be the additional compensation for the lands which are classified as Jirayat land and the land of the other remaining category for which the Special Land Acquisition Officer, on account of the distinguishing character and the fertility of the land, has awarded compensation at Rs.6/sq.mtr. for Jirayat land and Rs.4/sq.mtr. for the other remaining land. We have gone through the award passed by the Special Land Acquisition Officer and even in the judgment or in the evidence there is no material produced on behalf of the claimants to show that the character of all the lands was the same and in spite of the said aspect, the Special Land Acquisition Officer has awarded different amount of compensation. Under these circumstances, we find that the distinction in the nature of the lands viz. fertile land or Jirayat land or remaining land could not have been ignored by the Reference Court and the said aspect is required to be taken into consideration for the purpose of deciding the additional compensation.
As such if the distinction is considered as it is there has to be a proportionate deduction in the compensation of Rs.45/sq.mtr. taking into consideration the amount of Rs.6/sq.mtr. and Rs.4/sq.mtr. as awarded by the Special Land Acquisition Officer for the Jirayat and other remaining lands after taking the basis of the fertile land for which the Special Land Acquisition Officer has awarded the compensation at Rs.8/sq.mtr. and the proportionate deduction thereof but Mr.Shah learned Counsel appearing for the original claimants/respondents contended that all the lands were located within Dahod and, therefore, if this Court has already reduced the price towards N.A. factor and the valuation of the agricultural land has further reduced on account of the difference of size of the sale instances and the lands under acquisition, the said aspect would not assume much importance since all the lands are within Dahod city. He further submitted that therefore, this Court may not further distinguish the land for the purpose of additional compensation.
We find that the aspect of inclusion of all the lands in municipal area is one of the positive characters which is required to be taken into consideration while distinguishing the market value of the lands viz. fertile, Jirayat and other remaining lands but, at the same time, it cannot be said in absolute that even if the lands are located within the municipal area, the value of Jirayat and other remaining lands would be the same or at par with the fertile land. Therefore, keeping in view the peculiar circumstances that all lands are located within the municipal area, we find that the difference as was made by the Special Land Acquisition Officer between the fertile and Jirayat lands and other remaining land can be reduced @ 50% and the amount of additional compensation can be decided. If the difference between the fertile and Jirayat lands is reduced to 50%, proportionately such amount for Jirayat land would come to Rs.39.37/sq.mtr., if rounded off it would come to Rs.40/sq.mtr. taking the basis of Rs.7/sq.mtr. as against Rs.6/sq.mtr. assessed by the Special Land Acquisition Officer after considering the base of Rs.8/sq.mtr. for the fertile land. In the same manner if the different is proportionately to be considered for the other remaining land it would come to Rs.28.12/sq.mtr. and if rounded off it would come to Rs.28/sq.mtr. taking the base of Rs.5/sq.mtr. as against Rs.4/sq.mtr. assessed by the Special Land Acquisition Officer after considering the base of Rs.8/sq.mtr. for the fertile land. Under the above circumstances, the judgment and award of the Reference Court would be required to be modified.
As regards the other benefits awarded by the Reference Court of the increase in the market value, solatium and interest are concerned, they are all statutory in nature and, therefore, the same are not required to be interfered with, save and except to the extent that all such amount shall get proportionately reduced on account of reduction of the principal amount of compensation in respect of Jirayat and other remaining lands but there will not be any change for the fertile land wherein the compensation is fixed at Rs.45/sq.mtr.
In view of the above discussion, the judgment and award passed by the Reference Court, so far as awarding additional compensation of Rs.45/sq.mtr. for the fertile land is concerned, the same is not interfered with. However, the judgment and award of the Reference Court so far it relates to awarding additional compensation for the Jirayat and other remaining lands exceeding the amount of Rs.40/sq.mtr. and Rs.28/sq.mtr. is quashed and set aside and it is declared that the additional compensation for Jirayat land shall be Rs.40/sq.mtr. and for other remaining land shall be Rs.28/sq.mtr. Other statutory benefits would also be available to the lands owners on the aforesaid principal amount of compensation as awarded by the Reference Court with the proportionate reduction thereof.
Appeals are partly allowed to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs.
Learned advocate for the respondents-claimants submitted that the compensation, if not deposited, may be directed to be deposited within some time. Considering the facts and circumstances, if the compensation is not deposited as per the present judgment and order, the same shall be deposited within a period of 08 (eight) weeks from the receipt of copy of this judgment.
Sd/-
[JAYANT PATEL,J] Sd/-
[ R.M.CHHAYA, J] *** Bhavesh* Top