Gujarat High Court
Special Land Acquisition Officer vs Chandubhai Naranbhai Patel on 26 March, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/FA/2486/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2486 of 2010
SPECIAL LAND ACQUISITION OFFICER
Versus
CHANDUBHAI NARANBHAI PATEL
Appearance:
MR DHAWAN JAISWAL AGP for the PETITIONER(s) No. 1,2
MR MIHIR H PATHAK(5261) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 26/03/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 This appeal under Section 54 of the Land Acquisition Act, 1894 read with Section 96 of the Civil Procedure Code, 1908 is preferred by the appellant - original opponent against the judgment dated 30.03.2009 passed by the learned 6th Additional Senior Civil Judge and Special Judge [LAR], Ahmedabad Rural in L.A. Case No.419 of 1995 below Exh.36 whereby it is held that claimants / owners are entitled to get Rs.63/ per square meter as additional compensation for the land acquired in addition to Rs.2.40 granted Page 1 of 14 C/FA/2486/2010 ORDER by the Land Acquisition Officer and other permissible amounts.
1.1 Para 19 of the judgment dated 30.03.2009 reads as under:
"19 These Land Reference Cases are hereby partly allowed:
The claimants are entitled to get the amount of Rs.63.00 [Rupees sixty three only] per square meter for the acquired land as an Additional Compensation over and above the Compensation already awarded by the Land Acquisition Officer.
The claimants are also entitled to get increase at the rate of 12% p.a. From the date of Publication of Notification Under Section 4(1) of the Act i.e. 9/8/91 to the date of Award passed by the Land Acquisition Officer i.e. 30/10/93 as provided under Section 23 (IA) of the Act.
The Claimants are also entitled to get 30% Solatium and running interest at the rate of 9% p.a. For the period of one year from the date of taking over the possession of the Acquired land and thereafter at the rate of 15% p.a. on aggregated amou7nt i.e. Additional Awarded Amount, Solatium and 12% increase under Section 23 (1A) till the entire amount is fully paid or deposited.
The claimants shall pay necessary Court fees as per the Undertaking given by them Page 2 of 14 C/FA/2486/2010 ORDER subject to the decision of the Hon'ble Supreme Court.
The amount of compensation [excluding interest] to each claimants is shown in the Schedule separately supplied and attached with this order."
2 Notification under Section 4 of the Land Acquisition Act, 1894 [for short, `the Act, 1894'] was issued on 09.08.1991 for acquisition of land for construction of Narmada Canal. Thereafter, notice under Section 6 of the Act, 1894 was issued on 19.05.1992 and notices were served under Section 9 of the Act, 1894 and after hearing the claimants and officers, the award was declared on 30.11.1993 under Section 11 of the Act, 1894 whereby Rs.2.40 per square meter was awarded for the acquisition of land. The claimants / owners were aggrieved by the meager amount so awarded for the land acquired under Block Nos.70 and 75 each consist of 6616 and 6856 square meters respectively for th purpose of construction of Narmada Canal. The land Acquisition Officer has considered material Page 3 of 14 C/FA/2486/2010 ORDER produced on record and geographical location of the land acquired which was nearby Dholka town KhedaDholkaBagodara road and scope of further development in view of industrial units surrounding and situate in Dholka taluka. Besides, in crossexamination by learned D.G.P. of a witness further reveal that in the year 1991 irrigation facilities were available in the fields and some other documentary evidence, which included in adjoining villages Pisavada, Ambethi and Trasad and award was passed based on consent of the parties. By applying parameters as laid down by the Apex court and based on documentary evidence exhibited at 14 & 20 which were admitted. The learned Reference Court relied on the following documentary evidence:
[1] Exh.15 - Judgment in LAR No.587/95 of Dholka [2] Exh.16 - F.A. No.1439/2000 [3] Exh.17 - SLP No. 45174532/2000 [4] Exh.21 to 22 - Village Form No.7/12 [5] Exh.23 to 24 - Map The opponent Nos.1 and 2 have also produced following documentary evidence Page 4 of 14 C/FA/2486/2010 ORDER vide list Exh.28 which have been admitted in evidence:
[1] Exh.29 - Copy of Award.
[2] Exh.30 - Measurement.
[3] Exh.31 - Demand Statement. [4] Exh.32 - Five years sale deed. [5] Exh.33 - Copy of award No.6/91"
3 That against the demand of Rs.100/ per square meter by the claimants in juxtaposition to award passed by the Land Acquisition Officer, who awarded Rs.2.48 per square meter, the Reference Court also relied on the decisions of the Apex Court for determining of market value of the land, criteria for enhancement of compensation, powers conferred upon the Reference Court by considering parameters laid down by the Apex Court and the relevant date of publication of notification under Section of the Act on 19.09.1991 in L.A.R. Case No.587 of and comparing the above fact with the case on hand where also notification was issued on 09.08.1991, the basis for determination of value was arrived at Rs.100 per square meter. The Reference Court further Page 5 of 14 C/FA/2486/2010 ORDER weighed with the deposition of the witnesses and their crossexamination the fact about industrial development, residential societies, chance for nonagricultural development and radius of more than 8 to 10 kms qua distance with taluka place, etc. Even though fact remains that village Ambethi of the subject reference was not part of Dholka Town, but amount was reduced to Rs.63 per square meter.
4 The contention of the learned AGP about common oral judgment dated 16.03.2007 passed in First Appeal Nos.1504 of 2007 to 1517 of 2007 in the case of village Valthera of Taluka Dholka in reference case No.L.A. Case Nos.295 to 307 of 1996 where the compensation was awarded at Rs.22 per square meter would apply in the facts and circumstances of the case as the distance of Ambethi and village Valthera is about 8 to 10 kms from Dholka. It is also submitted that the Land Acquisition Officer was justified in awarding compensation at Rs.2.40 per square meter based on Page 6 of 14 C/FA/2486/2010 ORDER material available before him and admittedly the land was situated in Rural area having no scope of further development in the near future. 5 Having perused the entire record of the appeal in the context of submissions made by learned AGP and the award of Land Acquisition Officer and Reference Court, we find that comparison was drawn by the learned Reference Court qua the award of the adjoining village Trasad and even reduced market value per square meter in view of topography of the village Ambethi. The Reference Court in Para 13 of the judgment gave reasoning and findings for enhancing amount of award, relevant portion of which is reproduced hereunder:
"13 ......
As against this ld. Advocate for the claimants Shri S.G.Patel has orally argued that they have proved the fact that village Ambethi and Dholka is adjoining to each other and further from the map it is also provided that the last survey number of village Ambethi was acquired. Further, Page 7 of 14 C/FA/2486/2010 ORDER the population is around 3000 people and the farmers were earning Rs.4000000 per vigha per year as net agriculture income. It is further argued that the national highway is passing nearer to the acquired land of village Ambethi and wooden shop, factories, residential societies, Kalikund Temple, Rice mills etc. are situated nearer to village Ambethi and further the acquired land is situated nearer to the Gamtal land and village is just situated 3.5 km. away from Dholka. Now, from the deposition of the witnesses and from the cross examination of the witness of the claimants and more particularly the fact stated during the deposition regarding the industrial development, various shops, residential societies, Kalikund Temple which is famous temple etc. were just near to the acquired land seems that there is a chance for non agriculture development and therefore naturally the price of the non agriculture land is always high upto three to four times than the agriculture and residential as well as economical development has often taken place and further the distance of 2 to 3 mk. Between two villages can not be considered as more distance because the area of each taluka place are surrounded at a radius of more than 8 to 10 km. and therefore it is prayed to award Rs.100.00 per sq. mtr.
Now, considering the arguments advanced by both the side it is clear and undisputed fact that village Ambethi is situated just adjoining to village Dholka but at the same time it is also required to be noted the fact that Dholka is a taluka place while the Village Ambethi is a small village and naturally the village is not having such facilities which are available Page 8 of 14 C/FA/2486/2010 ORDER to taluka place like S.T. Facilities, various colleges for education railway facilities etc. it is also required to be noted the fact that infact the acquired land is situated in village Ambethi is just adjoining to the acquired land of Dholka which seems that the village land is starting from the acquired land of this case and it also shows like the land is acquired from Dholka because the survey number of Dholka is adjoining to the present survey number and therefore the facilities available tot he land of Dholka naturally should also available to the acquired adjoining land of Ambethi. Infact only the revenue survey number of acquired land is of village Ambethi but it seems like a survey number of taluka Dholka. Further, here at this stage it is required to be noted the fact that in this era of globalization period when the economical development is being increased broadly and the prices of real estates are touching to the highest level and it is also required to be noted the fact that the World is now became small by way of communication and by way of even transportation and therefore 3 to 4 km. distance amongst the two villages is not a major point and in this circumstances for determination of the price of acquired land of village Ambethi, all these factors are also required to be considered. It is also required to be kept in mind that it was compulsory acquisition while determining the price of the acquired land of village Ambethi. Further, it is pertinent to note that the other side has failed to produce any other evidence on record upon which court can rely. They only relied upon the various documentary evidence which I have already discussed earlier. Further, the witness of the Page 9 of 14 C/FA/2486/2010 ORDER claimants has admitted that in the acquired land of village Ambethi, the irrigation facility was available by borewell.
In view of the above sets of discussion, I am of the view that the present claimants are entitled to get reasonable raise in the price of the acquired land as the claimants have proved the equal fertility and production compared to the acquired land of Dholka and it is the fact that Ambethi is situated just nearer to Dholka and as discussed hereinabove in detail the acquired land of present case is adjoining to the earlier acquired land of Dholka as per the Map produced on record, there is a chance and possibility for non agriculture development but at the same time it is also required to be noted the fact that Dholka is a taluka place and therefore the price awarded to the land owners of Dholka can not be considered as the price of the acquired land of Ambethi and therefore taking into consideration this point if the total price of Dholka is reduced to certain extent then I assess the market value of the land in question at the rate of Rs.65.40 per square meter for the acquired land as per the Land Acquisition Officer has already awarded Rs.2.40 per square meter to the present claimants in respective cases and therefore, according to my opinion, the fair and just amount of Rs.63.00 per square meter as additional compensation should be awarded than it will meet the end of justice and hence I Award Rs.63.00 per additional compensation".Page 10 of 14 C/FA/2486/2010 ORDER
5.1 That based on decisions of the Apex Court with regard to entitlement of the claimants to get 12% market value in addition to the enhanced rate of interest and solatium u/Sec. 23(1A) for the period commencing from the date of notification under Section 4(1) of the Act and other such statutory benefits and interest towards compensation under Section 23(2) of the Act held in paras 14 to 17 as under:
"14 In view of the decision given by the Hon'ble Bombay High Court in a case of Jashvantbhai V/s. Government of Goa reported in AIR 1987 Bombay Pg. 214 that "the amended provision of the Section 23(1A) is applicable to all cases pending in any forum on 30/4/82 and the claimant is entitled to recover 12% of the market value in addition to the enhanced rate of interest and a solatium for the period of the Act till the date of taking over the possession or the verdict, I am of the opinion that the present claimants are entitled to get the additional compensation under Section 23 (1A) of the Act at the rate of 12% of the market value in addition to the enhanced rate of interest and solatium for the period commencing from the date of Notification under Section 4(1) of the Act till the date of taking over the possession to the date of award whichever is earlier.Page 11 of 14 C/FA/2486/2010 ORDER
15 Further more, in a case of Bhagsing V/s. Union Territory, Chandigarh reported in AIR 1985 SC Pg. 1575, the Hon'ble Apex Court of the Country has very clearly given the verdict that "the amended provision of Section 23(3) is applicable to all proceedings relating to compensation pending on the date of commencement of the amended act or filed subsequent thereto whether before the L.A. Collector of before the Court or the Hon'ble High Court or even before the Hon'ble Supreme Court" and further more in a case of Govindanbhai reported in AIR 1995 Gujarat Pg. 200 the Hon'ble Gujarat High Court has very clearly held that the "claimant are entitled to solatium U/s.23(2) of the Act at the rate of 30% on the excess amount awarded by the Court".
Thus is view of these decisions, I am of the opinion that the claimant of the present cases are also entitled to solatium Under Section 23(2) of the Act at the rate of 30% on the excess amount awarded by the Court". Thus, in view of these decisions, I am of the opinion that the claimant of the present cases re also entitled to solatium Under Section 23(2) of the Act at the rate of 30% on the excess amount awarded.
16 The claimants are also entitled to get interest on aggregate amount of compensation including solatium in view of the judgment reported in 2002(2) GLH pg. 435 in the case of Special Land Acquisition Officer vs. Kodarbhai Jenabhai & Others in which the Hon'ble High Court of Gujarat has held relying on the judgment by Apex Court in the case of "Sundar V/s. Union of India (2001 SOL Case Page 12 of 14 C/FA/2486/2010 ORDER No.551) that "once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the act forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of S 28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions section 28 in terms warrant and authorize the grant of interest on solatium as well" and also entitled to get interest on the aggregate amount including solatium and therefore in view of the judgment of the Apex Court the claimants are entitled to get interest on solatium.
17 The claimant are also entitled to get the interest at the rate of 9% p.a. for the period of one year from the date of taking over the possession of the acquired land and thereafter at the rate of 15% p.a. till the amount is fully paid or deposited. Therefore I answer issue No.1 & 2 accordingly."
6 In view of the above, we are in complete agreement with the view taken by the learned 6th Additional Senior Civil Judge and Special Judge Page 13 of 14 C/FA/2486/2010 ORDER [LAR], Ahmedabad Rural vide judgment dated 30.03.2009 in awarding Rs.63/ per square meter additional compensation over and above the compensation already awarded by the Land Acquisition Officer. Further, the rate of interest awarded by the Reference Court is also in consonance with the statutory provisions. Therefore, we are not inclined to interfere with the impugned judgment dated 30.03.2009 rendered by the Reference Court.
In absence of any merit, this appeal is dismissed.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) P. SUBRAHMANYAM Page 14 of 14