Gujarat High Court
Whether Reporters Of Local Papers May Be ... vs Ramji Govind & 4 on 22 January, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2766/1996 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2766 of 1996
TO
FIRST APPEAL NO. 2769 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
================================================================
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 ?
STATE OF GUJARAT....Appellant(s)
Versus
RAMJI GOVIND & 4....Defendant(s)
Appearance:
MR ALKESH SHAH, Assistant Government Pleader for the Appellant(s) No.
MR MEHUL S SHAH, ADVOCATE for the Defendant(s) No. 1-5
CORAM:HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/01/2014
COMMON ORAL JUDGMENT
1. All these appeals are directed against the common judgment and award dated 20.04.1996 passed by learned 3rd Extra Assistant Judge, Gondal, Dist:
Page 1 of 12C/FA/2766/1996 JUDGMENT Rajkot, in Land Reference Case Nos.162 to 165 of 1984 and 168 of 1984. As the same set of evidence is relied upon and as the same contentions are raised in all these appeals, they are heard together and are hereby disposed of by this common judgment.
2. At the outset, it may be noted that First Appeal No.2766 of 1996 was preferred by the State challenging the judgment and award passed by learned 3rd Extra Assistant Judge, Gondal, Dist: Rajkot, in Land Reference Case No.162 of 1984. The said appeal was not entertained by the Division Bench of this Court (Coram:Hon'ble Mr.Justice Y.B.Bhatt & Hon'ble Mr.Justice C.K.Buch, as their Lordships then were) and was summarily dismissed on account of it being Petty claim vide order dated 13.02.1998.
3. The relevant facts arising out from these appeals are as under:-
That the lands belonging to the defendants- original claimants, situated at Village Jetpur, Tal:
Jetpur, Dist: Rajkot, were sought to be acquired by the State Government for the public purpose of improvement of Jetpur-Amarnagar Road. Notification under Section 4 of the Act was issued on 19.07.1979 followed by declaration under Section 6 of the Act dated 13.07.1982. The land acquisition proceeding so initiated, culminated into award under Section 11(1) of the Act, which was made and declared by the Special Land Acquisition Officer on 07.02.1984. The Page 2 of 12 C/FA/2766/1996 JUDGMENT Special Land Acquisition Officer awarded Rs.15/- per Sq.Mtr., (to the original claimants in Land Reference Case Nos.162 and 163 of 1984) Rs.18/- per Sq.Mtr., (to the original claimants in Land Reference Case No.164 of 1984) and Rs.12/- per Sq.Mtr., (to the original claimants in Land Reference Case Nos.165 of 1984 and 168 of 1984.)
4. Being dissatisfied with the amount of compensation so awarded by the Special Land Acquisition Officer, the original claimants filed references as provided under Section 18 of the Act, which came to be referred to the Reference Court and were registered as Land Reference Case Nos.162 to 165 of 1984 and 168 of 1984. After considering the evidence on record and upon submissions made by the respective parties, the Reference Court vide judgment and award dated 20.04.1996 partly allowed the references with proportionate costs and passed the following order:-
"The present Land Reference Cases are hereby partly allowed with proportionate costs.
The applicants of following Land Reference Cases are entitled to get the compensation of their land as under:-
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Sr. LRC Survey Amount awarded Amount Difference No. No. No. by LAO fixed
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1. 162/84 58 paiki Rs.15/- PSM Rs.45/- Rs.30/- PSM
2. 163/84 56 paiki Rs.15/- PSM Rs.30/- Rs.15/- PSM
3. 164/84 10/2 Rs.18/- PSM Rs.50/- Rs.32/- PSM
4. 165/84 47 paiki Rs.12/- PSM Rs.30/- Rs.18/- PSM
5. 168/84 55 paiki Rs.12/- PSM Rs.30/- Rs.18/- PSM
--------------------------------------------------------------
All the present applicants are also entitled for an Page 3 of 12 C/FA/2766/1996 JUDGMENT additional amount under Section 23(1)(a) and 23(2) of the Land Acquisition Act with interest at the rate of 9% p.a from the date of taking possession till one year and thereafter at the rate of 15% p.a till its realization.
The opponents are hereby directed to deposit the amount of award after deduction of 1/3rd amount within a period of 3 months from the date of this order, but the opponents are entitled to deduct the amount which is already paid to the applicants by way of compensation etc. The opponents shall pay the proportionate cost for the additional amount of compensation awarded to the claimants and the claimants shall bear the proportionate cost for the amount of claim which has been disallowed.
Award be drawn accordingly."
5. Being aggrieved by the judgment and award of the Reference Court, the State has preferred this group of appeals.
6. Heard Mr.Alkesh Shah, learned Assistant Government Pleader for the appellants and Mr.Mehul Shah, learned counsel for the defendants-original claimants in all these appeals. Have perused the record and proceedings of the Reference Court and have also gone through the impugned judgment and award.
7. Learned Assistant Government Pleader has vehemently submitted that very basis of awarding Rs.45/- and Rs.30/- per Sq.Mtr., for different parcels of the lands which were acquired by the State Government, is erroneous. He, further relying upon the oral as well as the documentary evidence laid by the appellants, submitted that the Reference Court has merely relied upon its earlier award and has applied the same mechanically. He further submitted that having come to the conclusion that the lands in Page 4 of 12 C/FA/2766/1996 JUDGMENT question are situated away from Jetpur city, the Reference Court has wrongly considered previous award as comparable instance and has wrongly appreciated the geographical location as well as the situation of the lands (under Acquisition) and has awarded excessive compensation at the rate of Rs.45/- and 30/- per Sq.Mtr., in these group of appeals.
8. Learned Assistant Government Pleader further pointed out that in First Appeal No.2442 of 1996 and allied appeals related to the lands which are near the vicinity of the lands (under acquisition) in these appeals, the market value has been fixed as per the geographical location of the lands i.e. Rs.48/- per Sq.Mtr., for the lands which were nearer to the highway and Rs.40/- per Sq.Mtr., for the lands which were interior to the road. It is further submitted that the lands of the original claimants are similarly situated to the lands of the aforesaid appeals. It is further contended that in the aforesaid group of appeals Notification under Section 4 of the Act was issued on 22.11.1981, whereas in the instant case, Section 4 Notification is issued on 19.07.1979. In view of the aforesaid, even if the market value is based upon the judgment rendered by this Court in the case of State of Gujarat Vs. Patel Bai Nanduben Jiva in First Appeal No.2442 of 1996 to First Appeal No.2445 of 1996 by applying principle of reverse deduction of 10% per year, the value of the lands (under Acquisition) would be less than what is Page 5 of 12 C/FA/2766/1996 JUDGMENT determined by the Reference Court by way of the impugned judgment and award.
9. Learned Assistant Government Pleader also candidly submitted that the aforesaid judgment is followed by this Court in First Appeal No.2814 of 1996 and allied matter, which was also for the lands situated at Jetpur. Therefore, he submitted that the present appeals are required to be at least partly allowed and the impugned judgment and award needs to be modified at least to that extent.
10. Per contra, Mr.Mehul Shah, learned counsel for the defendants-original claimants has supported the impugned judgment and award and contended that even if, the judgment rendered by this Court in First Appeal No.2442 of 1996 and allied matters has relied upon, no further reduction is necessary as there is gap of only two years between the Notification of Section 4 of the Act and considering the geographical location of the lands (under Acquisition), potentiality of the lands in question and considering all relevant aspects, the Reference Court has rightly awarded Rs.45/- and Rs.30/- per Sq.Mtr., to the original claimants and therefore, the appeals are merit-less and the same deserve to be dismissed.
11. No other and further submissions are made by learned counsel for the parties.
Page 6 of 12C/FA/2766/1996 JUDGMENT
12. Upon considering the submissions made by learned counsel for the parties and on perusal of the record and proceedings, more particularly, the award passed by the Land Acquisition Officer, it transpires that the lands (under Acquisition) are situated near Jetpur and has recorded by the Land Acquisition Officer in his award that the lands (under Acquisition) are situated on the Southern of Jetpur city at a distance of 1 km. Mainly considering the sale instances of the year 1977 and 1978, the land Acquisition Officer has determined the market value as indicated hereinabove.
13. The original claimants have also produced the copies of the Sale Deed as well as the copy of the N.A.Order, more particularly, Survey No.58/Part, which is one of the land (under Acquisition) and have also relied upon the previous award at Exh:31 rendered by the Reference Court in Land Reference Case No.133 of 1987 and other cognate applications. The original claimants have also examined the witness Laljibhai Manjibhai in order to prove the document Exh:35. The State Government has also examined Shri Rameshkumar Fulchandbhai Sangani at Exh:39, who was the Mamlatdar working in the office of the Special Land Acquisition Officer, Rajkot.
14. It may be noted that Mr.Mehul Shah, learned counsel for the original claimants has rightly relied upon the judgment rendered by this Court (Coram:
Page 7 of 12C/FA/2766/1996 JUDGMENT Jayant Patel, J.) in First Appeal No.2442 of 1996 to 2445 of 1996, which relate to the lands, which were acquired for similar public purpose by the State Government, which are situated very near to the lands (under Acquisition) in the instant case.
15. Considering the evidence on record, this Court (Coram: Jayant Patel, J.) has observed thus in First Appeal No.2442 of 1996 and allied matters:
"5. It appears that the basic distinction between the agricultural land and non-agricultural land is lost sight of by the Reference Court while fixing the market price of the land in question. At this stage, it would be worthwhile to refere to the decision of the Apex Court in case of Kasturi v. State of Haryanaýý, reported in AIR 2003 SC, 202 and more particularly the observations made at para 7 as under:-
S7. It is not debated that sale transaction covered by Exbt. P-7 relates to a small plot and the land in question acquired is about 84 acre. This land comprising of large area is not developed although it has potential value for residential and commercial purposes. In order to develop this land, roads were to be laid, provisions for drainage was to be made and certain area was to be earmarked for other civic amenities. Thus, after leaving the area in the land required for the purposes mentioned above, plots were to be made for residential and commercial purposes by incurring expenditure for other developmental works, such as providing electricity, water, etc. The acquired land is not small plot located in such a way that no other development was required at all and it could be utilized as it is as a developed building site. It is well-settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3 amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for roads and other civic amenities to develop the land so as to make the plots for the residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; may be the land is situated in the midst of a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurred in developing the area also varies. A claimant who claims Page 8 of 12 C/FA/2766/1996 JUDGMENT that his land is fully developed and nothing more is required to be done for developmental purposes, must show on the basis of evidence that it is such a land and it is so located. In the absence of such evidence, merely saying that area adjoining his land is developed area, is not enough particularly when the extent of the acquired land is large and even if a small portion of the land is abutting the main road in the developed area, does not give the land character of a developed area. In 84 acres of land acquired even if one portion on one side abuts the main road, the remaining large area where planned development is required, needs laying of internal roads, drainage, sewer, water, electricity lines, providing civic amenities etc. However, in cases of some land where there are certain advantages by virtue of the developed area around, may help in reducing the percentage of cut to be applied, as the developmental charges required may be less on that account. There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, may be in some cases it is more than 1/3 and in some cases less than 1/3. It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracts are acquired, as in this case, for development purpose.ýý Therefore, as such in a normal course 1/3rd deduction may be required to be made, however, in the case before the Apex Court, it was ultimately found by the Apex Court, as observed in para 14, as under:-
S14. On facts and in the light of the legal position emerging from the various decisions referred to above, it is not possible for us to say that cut of 20% adopted by the learned single Judge as affirmed by the Division Bench in the impugned judgment is wrong or unsustainable. It appears to us having regard to facts and circumstances of the case that the High Court has applied cut of 20% as against the normal 1/3 deduction. We find that the High Court was right and justified in doing so.ýý
6. It does not come on record as to whether sale instances were for the non-agricultural land for commercial purpose of that residential purpose, but it appears from the deposition of the claimants that on the adjoining portion of the land residential houses are situated on the northern side and on the southern side the sari factories are situated. Therefore, considering the facts and circumstances I find that in any case, the difference between the market value of the agricultural land and non-
agricultural land would be less by 20% for agricultural land. It is hardly required to be stated that if the agricultural land is Page 9 of 12 C/FA/2766/1996 JUDGMENT to be converted into non-agricultural use, common plot, internal road and other space is required to be excluded and the net area, over which the structure may be permissible as per the building bye-laws would be available and such net land may be sold by the person after conversion for non-agricultural use. Therefore, the price as may be prevailing in the market would be as that of non-agricultural portion of the land which, in any case, would not be the same or at par with the agricultural land. Therefore, considering the basic distinction of the sale instances, as they were available before the Reference Court of the non-agricultural land and the land under acquisition was an agricultural land, the prices were required to be treated as less by 20%. The Reference Court has found that for the land under acquisition situated nearby the road, the market value is Rs.60/- per sq. mtrs., whereas interior to the road the market value is fixed at Rs.50/- per sq. mtrs. Both the findings are based on the sale instances and the price valuation for non- agricultural and not for agricultural land. If 20% reduction is considered, the price for such land would be reduced to Rs.48/- per sq. mtrs., for the land situated nearby road and Rs.40/- per sq. mtrs., for the land situated interior to the road. Out of the said amount, if the amount as ordered by the Land Acquisition Officer are excluded, the net effect would be as under:-
Sr. Land Ref. No. Amount awarded Additional No. by L.A.O. Of compensation per. sq. mtr. after deduction
1. 72/87 Rs.18/- Rs.30/-
2. 78/87 Rs.20/ Rs.28/
3. 82/87 Rs.10/ Rs.30/
4. 133/87 Rs.15/ Rs.25/ The other aspects of award passed by the Reference Court for solatium and interest do not deserve to be interfered with, but the same shall get proportionately reduced due to reduction in the amount of compensation.
7. In view of the above, the impugned judgement and award of the Reference Court are modified by fixing the compensation at the rate of Rs.48/- per sq. mtrs., in place of Rs.60/- per sq. mtrs.
and Rs.40/- per. sq. mtrs., in place of Rs.50/- per sq. mtrs., for the respective lands as referred to hereinabove and conseuqent reduction in the solatium, interest etc."
16. In the impugned judgment and award, the Reference Court has awarded Rs.45/- per Sq.Mtr., for the land being Survey No.58/part, which is related to First Appeal No.2766 of 1996, whereas in other case i.e. Reference Court has awarded Rs.30/- per Sq.Mtr.
Page 10 of 12C/FA/2766/1996 JUDGMENT 17. In the case of First Appeal No.2442 of 1996
Section 4 Notification was published on 26.11.1991. In similar factual scenario, this Court has awarded Rs.48/- per Sq.Mtr., for the lands, which were situated nearby the road and Rs.40/- per Sq.Mtr., for the lands, which were situated interior to the road. It may also be noted that First Appeal No.2442 of 1996 and allied appeals were filed against the common judgment and award at Exh:31, therefore, the judgment rendered by this Court, whereby the market value is fixed at Rs.48/- per Sq.Mtr., which were situated nearby the road and Rs.40/- per Sq.Mtr, which were situated interior to the road is best comparable instance for the present case also.
18. On basis of the evidence on record and as per the description of the lands (under Acquisition), which is culled out from the award passed by the Land Acquisition Officer, it transpires that the lands bearing Survey No.58/part belonging to Ramjibhai Govind and others, is situated nearby the road whereas other lands, which are situated interior part.
19. Considering the gap of two years as far as the issuance of the Notification under Section 4 of the Act is concerned, by applying reverse deduction of 10% per year for 2 years, the market value for the land bearing Survey No.58/Part would therefore, be Rs.36/- per Sq.Mtr. [Rs.45-Rs.9.60 (rounded figure)].
Page 11 of 12C/FA/2766/1996 JUDGMENT Applying the same principle, price for the lands
bearing Survey Nos.56/part, 47/part and 55/part would be as such Rs.32/- per Sq.Mtr. (Rs.40-Rs.8), and therefore, in absence of any appeal and/or cross- objections by the original claimants, the market value determined by the Reference Court @ Rs.30/- per Sq.Mtr., deserves to be confirmed
20. In view of the aforesaid, no interference is called for in First Appeal Nos.2767 to 2769 of 1996 and the said appeals are hereby dismissed and the judgment and award rendered in Land Reference Case Nos.163, 165 and 168 of 1984 stand confirmed. First Appeal No.2766 of 1996 is partly allowed and the impugned judgment and award of the Reference Court passed in Land Reference Case No.162 of 1984 is modified by fixing the compensation at the rate of Rs.36/- per Sq.Mtr., in place of Rs.45/- per Sq.Mtr., with consequent reduction in the solatium interest and other statutory benefits etc. No order as to costs. Decree be drawn accordingly.
21. Registry is directed to send back the Record and Proceedings of these appeals forthwith to the Reference Court.
(R.M.CHHAYA, J.) Suchit Page 12 of 12