Gujarat High Court
Special Land Acquisition Officer Unit 1 vs Parth Kaushikbhai Pandya Is Poa Of Jigar ... on 25 January, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2023
In R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2023
In R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 3 of 2023
In R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 4 of 2023
In R/FIRST APPEAL NO. 11 of 2023
With
R/CROSS OBJECTION NO. 222 of 2023
In
R/FIRST APPEAL NO. 11 of 2023
With
R/CROSS OBJECTION NO. 223 of 2023
In
R/FIRST APPEAL NO. 11 of 2023
With
R/FIRST APPEAL NO. 21 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2023
In R/FIRST APPEAL NO. 21 of 2023
With
R/CROSS OBJECTION NO. 221 of 2023
In
R/FIRST APPEAL NO. 21 of 2023
With
R/CROSS OBJECTION NO. 181 of 2023
In
R/FIRST APPEAL NO. 21 of 2023
With
R/CROSS OBJECTION NO. 224 of 2023
In
R/FIRST APPEAL NO. 21 of 2023
With
R/CROSS OBJECTION NO. 225 of 2023
Page 1 of 320
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NEUTRAL CITATION
C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024
undefined
In
R/FIRST APPEAL NO. 21 of 2023
With
R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2023
In R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2023
In R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2023
In R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2022
In R/FIRST APPEAL NO. 22 of 2023
With
R/CIVIL APPLICATION NO. 2321 of 2022
In
F/FIRST APPEAL NO. 28415 of 2022
With
R/CIVIL APPLICATION NO. 99 of 2023
In
F/FIRST APPEAL NO. 42671 of 2022
With
R/CIVIL APPLICATION NO. 100 of 2023
In
F/FIRST APPEAL NO. 42652 of 2022
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2023
In R/FIRST APPEAL NO. 21 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/FIRST APPEAL NO. 21 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2023
In R/FIRST APPEAL NO. 21 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2022
In R/FIRST APPEAL NO. 21 of 2023
Page 2 of 320
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NEUTRAL CITATION
C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
SPECIAL LAND ACQUISITION OFFICER UNIT 1
Versus
PARTH KAUSHIKBHAI PANDYA IS POA OF JIGAR ANANTBHAI DESAI
==========================================================
Appearance:
MR.KAMAL TRIVEDI, LD. ADVOCATE GENERAL with MR.VINAY VISHEN,
AGP with MR.PRANAV TRIVEDI, AGP for the Appellant(s) No. 1,2,3,4 in
FIRST APPEAL NO.11 OF 2023, CA 2 OF 2022, CA 2 OF 2023, CA 2 OF
2023, FIRST APPEAL NO.21 OF 2023 with connected CAs, FIRST APPEAL
NO.22 OF 2023 with connected Cas
MR RAJENDRAKUMAR G JOSHI(12690) for the Defendant(s) No. 1,3 in
FIRST APPEAL NO.11 OF 2023 with connected CAs, for the Respondent
no.7 in CA 1 OF 2023 in FA NO.11 of 2023, for the respondent no.2 (s) in
FIRST APPEAL NO.21 OF 2023 with connected CAs, for the appellant in
XOBJ NO.224 OF 2023 in FA 21 OF 2023
MR.MIHIR THAKORE, LD. SENIOR ADVOCATE with MR TARAK
DAMANI(6089) for the Defendant(s) No. 5 in FIRST APPEAL NO.11 OF 2023
with connected Civil Applications, for respondent no.7 in CA 2321 OF 2022,
for respondent no.5 in CA 99 OF 2023 and CA 100 OF 2023, for the
Page 3 of 320
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C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024
undefined
Respondent no.5 in FA 11 OF 2023, for the Respondent no.9 in CA 1 OF
2023 in FA NO.11/2023, for respondent no.7 in FA No.21 of 2023, for the
appellant in X-OBJ NO.225 OF 2023 in FA 21 OF 2023, for the respondent
no.5 in FIRST APPEAL NO.22 OF 2023 with connected CAs
MR.ASIM PANDYA, LD. SENIOR ADVOCATE for MR UDAYAN P
VYAS(1302) for the Respondent(s) No. 3 in CA 2321 OF 2022, for the
Respondent no.2 in CA 100 OF 2023, for the Respondent no.2 in FA 11 OF
2023, for the Respondent no.6 in CA 1 OF 2023 in FA 11 OF 2023, for the
Appellant in X-OBJ 222 OF 2023, for respondent no.3 in FA No.21 of 2023,
for the appellant in X-OBJ 221 OF 2023 in FA NO.21/2023
MR. PRAKASH K. JANI, LD. SENIOR ADVOCATE for SHIVANG P
JANI(8285) for the Defendant(s) No. 6 in CA 2321 OF 2022, for the
Respondent no.4 in CA 100 OF 2023, for the Respondent no.4 in FA 11 OF
2023, for the Respondent no.8 in CA 1 of 2023 in FA 11 OF 2023, for
respondent no.6 in FA No.21 of 2023, for the appellant in X-OBJ No.181 of
2023 in FA No.21 of 2023, for respondent no.4 in FIRST APPEAL NO.22 OF
2023 with connected CAs
MR. SAURABH AMIN, ADVOCATE for MR.CHINTAN POPAT for respondent
no.2, 4, 5 in CA 2321 OF 2022, for respondent no.2 and 3 in FA NO.22/2023
MR. NIRAV MAJMUDAR, ADVOCATE for MR.P.B.KHAMBHOLJA for the
APPLICANT in CA NO.2321/2022, CA 99/2023 and CA 100/2023, CA
NO.1/2023 in FA NO.11/2023, for the applicant in CA No.3 of 2022 in FA
NO.21/2023, for the applicant in CA No.3 of 2022 in FA NO.22/2023
MR. MEHUL S. SHAH, LD. SENIOR ADVOCATE for MR.P.H.GOHIL,
MR.VAIBHAV A. VYAS, ADVOCATES for the applicant in CA 4 / 2023 in FA
11/2023, for the applicant in CA No.3 of 2023 in FA NO.21/2023, for the
applicant in CA No.3 of 2023 in FA NO.22/2023
========================================= ===================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 25/01/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) ORDER IN FIRST APPEALS WITH CIVIL APPLICATIONS FOR ADDITIONAL EVIDENCE AND CIVIL Page 4 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined APPLICATIONS FOR STAY WITH CROSS-OBJECTIONS
1. The First Appeals are filed by the appellant - State challenging the judgement and order dated 05.03.2022 passed under Section 18 of the Land Acquisition Act, 1894 by the learned Reference Court, Baroda (20 th Senior Civil Judge at Vadodara), whereby, the rate of compensation under the respective land reference cases was increased from Rs.1914/-
per sq. mtr. to Rs.26,048/- per sq. mtr..
1.1 Cross-objections have been filed by the original claimants claiming that when their claim was for enhancement to the extent of Rs.65,000/- per sq. mtr., the order of the Reference Court in partly allowing the reference by enhancing the amount only to the extent of Rs.26,048/- was bad. The Cross-Objections have been filed for claiming an additional remaining amount of Rs.38,952/-.
2. The dispute in the present matters is pertaining to land bearing survey no.1/A/2 shown in City Survey part-B bearing Tika Nos.27/15, 27/16 and 27/17 situated near Lalbaug Crossing, Kasba, Vadodara admeasuring 1,28,073 sq. mtrs.
Page 5 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined equivalent to approximately 53 vighas and 17 vasa. The lands are now bearing new survey nos.371 and 372.
3. Brief facts leading to filing of these proceedings are as under:
3.1 The land in question came to be acquired by the State Government vide notification dated 09.02.2007 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred to as 'the Act' for short). For the acquisition of the said land, the State Government had invoked the urgency clause for the acquisition thereafter. By an award dated 11.12.2008, the Land Acquisition Officer awarded an amount at the rate of Rs.1904/- per sq. mtr. The claimants, aggrieved by the award sought reference under Section 18 of the Act.
3.2 Before the District Court, the claimants claimed an amount of Rs.65,000/- per sq. mtr. By a judgement and award dated 05.03.2022, the Reference Court at Vadodara, granted an amount of Rs.26,048/- per sq. mtr. holding that the market value of the land under acquisition will be Rs.26,048/- per sq. mtr. on the date of Section 4 notification which was published Page 6 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined on 09.02.2007. The Reference Court further granted amount of interest/rent/damages to the claimants from 29.11.1991 till 09.02.2007 at the rate of 15% on the ground that the State Government was in possession of the land from 29.11.1991.
The Reference Court further passed an order directing the State Authorities to pay interest at the rate of 12% from 09.02.2007 i.e. the date of Section 4 notification till the date of the award i.e. 11.12.2008. A further direction was issued to grant solatium at the rate of 30% on an additional amount of compensation granted to the claimants. Accordingly, the Land Reference Court directed the State Authorities to pay the following amounts:
i. Rs.2,96,16,76,212.00 by way of additional compensation at the rate of Rs.24,134/- per sq. mtr. i.e. Rs.26,048.00 - Rs.1914/-.
ii. Rs.65,15,68,766.64 by way of interest at the rate of 12% per annum on additional compensation under Section 23(1A) of the Act from 09.02.2007 i.e. date of Section 4 notification to 11.12.2008 i.e. date of award.Page 7 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
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iv. Rs.729,20,94,260.00 by way of interest / rent at the rate of 15% from 29.11.1991 i.e. date on which the State Authorities was alleged to have come into possession of the land in question for the period anterior to Section 4 notification.
In all, the total amount would be Rs.11,79,38,42,102.60.
v. Rs.26,65,50,859.00 was awarded by way of interest at the rate of 9% per annum on the additional compensation for the period of one year from 09.02.2007 (date of Section 4 notification), under Section 28 of the Act.
vi. Rs.666,37,74,477.00 by way of interest @ 15% per annum on the amount of additional compensation from
10.02.2008 till 17.02.2023 under proviso to Section 28 of the Act.
Page 8 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 3.3 In all, the Reference Court under Section 18 awarded an amount of Rs.1872,41,64,438.73.
3.4 These appeals were filed in November 2022 and the cross-objections too have also been filed by the claimants as aforesaid.
5. Mr. Kamal Trivedi, learned Advocate General assisted by Mr. Vinay Vishen and Mr.Pranav V. Trivedi, learned Assistant Government Pleaders on the appeal and on the applications for additional evidence filed by the State has made the following submissions:
I. Re: Reasons in brief, without prejudice to one another, which require the reconsideration of the whole matter:
1. There is an arithmetical error in calculating the amount of interest / rent at the rate of 15% per annum from 29.11.1991 to 09.02.2007, giving rise to the total of Rs.729,20,94,260.41 crores, since the correct amount (though not grantable) comes to the tune of Rs.673,78,13,382.00 Crores, which would have changed the final award amount to Page 9 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Rs.1,816,98,83,561.00 instead of the awarded sum of Rs.1,872,41,64,438.73.
2. In absence of any provision in this regard, the aforesaid interest at the rate of 15% per annum is highly excessive, since as per GR dated 18.06.1986, the said rate ought to have been @ 9% per annum and if the same had been calculated accordingly, then in that case, the aforesaid amount of interest / rent should have come to the tune of Rs.172,30,60,508 and not Rs.729,20,94,260.41 for the period from 29.11.1991 to 09.02.2007, with the result, final amount would come to the tune of Rs.659,55,97,916 instead of the awarded sum of Rs.1,872,41,64,438.73.
3. When it has been a concurrent finding of fact regarding the factum of possession of the subject land being with the Respondents-Claimants herein, right from the order dated 29.11.1991 of the GRT, order 21.03.1994 of the Trial Court, read with judgment dated 07.05.2002 of this Court and finally read with judgment dated 10.04.2006 of the Hon'ble Supreme Court, there was no question of grant of any interest/rent much less an amount of Rs.729,20,94,260.41 to the land owners, more particularly when, there is no finding to the contrary, on record.
4. When no evidence worth the name is on record to show as to from which date the State Government Page 10 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined came into possession of the subject land, there is no question of assuming the possession of the State Government in respect of the subject land and that too, with effect from the date of the order of GRT being 27.11.1991. At best, one could have presumed that the State Government might have come in possession of the subject land after rendition of the judgment of the Hon'ble Supreme Court on 10.04.2006.
5. Even otherwise, as per the judgment of the Hon'ble Supreme Court in case of R. L. Jain vs. DDA, reported in (2004) 4 SCC 79 - rel. para-16, the Reference Court is not authorised to grant any amount of interest / rent for the period anterior to the date of Section 4 Notification being 09.02.2007, in the present case. Further, even as per the said judgment, if Collector was to calculate such interest, then in that case, it ought to have been at the prevailing Bank rate, but not at 15% per annum in any event.
6. If the above-referred reason is accepted as well established proposition of law, then in that case, the entire amount of Rs.729,20,94,260.41 granted by the Ld. Reference Court ought be excluded from the total awarded sum, while giving rise to the figure of total compensation amount to the tune of Rs.487,25,37,408 instead of the awarded sum of Rs.1,872,41,64,438.73.
7. Pertinently, the Ld. Reference Court has committed Page 11 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined an error in not adopting the correct method of determination of the valuation of the subject land and has taken into account irrelevant considerations, while ignoring the genuine sale instance reflected in the Sale Deed dated 25.01.2005 at the rate of Rs.10,038.80 per sq.mtr., in respect of land bearing CT Survey No.139, admeasuring 1,992.27 sq.mtrs., located in the same area of the subject land i.e. Vadodara - Kasba, City Vadodara, which ought to have been adopted as base or norm.
8. Unfortunately, the Reference Court has totally ignored the factual position as regards the characteristics of the subject land, as reflected in the Valuation Report dated 30.03.2007 as well as and in the minutes dated 09.04.2007 of the District Land Price Committee i.e. DLPC and also referred to by the Collector in the Award dated 11.12.2008, as well as in the Map and Google Image of the subject land, submitted during the course of hearing, viz.
(i) Large tract of land admeasuring 1,22,718 sq. mtrs.
(ii) Being in the shape of the strip of land.
(iii) Having more depth rather than frontage, which is practically very minuscule portion, as compared to the entire long periphery of the subject land.
(iv) Lying low to the extent of 1.22 cubic mtrs. from surface of the main road, requiring filing up, Page 12 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined entailing huge expense for the same.
(v) Existence of water body admeasuring about 10 vighas.
(vi) Existence of railway track just adjacent to the entire strip of land on its southern side.
The aforesaid are the negative points or minus factors, diminishing the value of the land. This aspect of the matter ought to have been taken into consideration by the Reference Court by granting appropriate percentage of deduction towards development cost, varying between 25% to 75%, considering the aforesaid characteristics of the subject land, while comparing the same with smaller developed pieces of lands admeasuring 6125 sq.mtrs. of City Survey Nos.12 and 13 Paiki and admeasuring 1992.27 sq.mtrs. of CT Survey No.139.
9. Circular dated 23.09.2002 issued by the State Government laying down guiding principles for determining the valuation of the land, should not have been considered by the Ld. Reference Court, more particularly, when it categorically provides that the said principle would not apply in the matter of land acquisition. In fact, the objective behind the issuance of the said Circular was to fetch good price for the disposal of prime Government lands, by way of lease.
10. Thus, if one were to take into consideration all the aspects discussed hereinabove, which ought have Page 13 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined been taken into account by the Ld. Reference Court, then in that case, the fair and correct valuation of the subject land ought to have been as per the 'statement showing the fair valuation of the subject land', submitted on behalf of the Appellant State on 12.10.2023, during the course of hearing, a copy whereof is annexed herewith for ready reference. According to the said statement, total award amount comes to the tune of Rs.198,29,43,519/- instead of the awarded sum of Rs.1,872,41,64,438.73.
II. Re: Correct method of determining the valuation / market price of the land under the Act:
1. As per the settled legal position, market value of the land in question is to be determined with reference to the open market sale of comparable land in the neighbourhood, by a willing seller to a willing buyer, on or before the date of Section 4 Notification, as that would give a fair indication of market value. Thus, the larger tract of land like the subject land has to be compared with similar extent of land.
2. However, when another sale instance of a large extent of land is not available in the neighbourhood, then in that case, smaller plots of land in the vicinity may be taken into account, but after providing for appropriate percentage of deduction.Page 14 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
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3. In support of what is mentioned above, reliance is placed on the judgment of the Hon'ble Supreme Court in case of Union of India vs. Dyagala Devmma, reported in (2008) 8 SCC 485, while following one of its earlier celebrated judgments in case of Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Pune, reported in (1988) 3 SCC 751, inter-alia, observed in para-4 of the judgment as under:
"4. The following factors must be etched on the mental screen:
*** *** *** *** *** *** (6) The determination has to be made standing on the date line of valuation (date of publication of notification under sec.4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition Page 15 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of land.) *** *** *** (10) The most comparable instances out of the genuine instances have to be identified on the following considerations :
(i) Proximity from time angle
(ii) Proximity from situation angle *** *** *** (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-à-vis land under acquisition by placing the two in juxtaposition.
*** *** *** Plus factors Minus factors
1. Smallness of size. 1 Largeness of area.
.
2. Proximity to a road. 2 Situation in the interior . at a distance from the road.
3. Frontage on a road. 3 Narrow strip of land with . very small frontage compared to depth.
4. Nearness to developed 4 Lower level requiring the area. . depressed portion to be Page 16 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined filled-up.
5. Regular shape. 5 Remoteness from . developed locality.
6. Level vis-à-vis land 6 Remoteness from under acquisition. . developed locality.
7. Special value for an owner of an adjoining property to whom it may have some very special advantage.
*** *** *** "
III. Re: Incorrect method of determination of market price adopted by the Ld. Reference Court:
1. Incorrect method adopted by the Reference Court in the present case for arriving at the market price of the subject land at Rs. 26,048/- per sq. mtrs., as discernible in paras-23 & 24 @ pgs. 73 to 77 of the impugned Judgment; can be better explained step-
wise, as under:-
(i) Sale price of Rs.10,038.80 per sq. mtr. was available as reflected in the sale-deed dated 25.01.2005 in respect of land bearing City Survey No.139, admeasuring 1992.27 sq. mtrs. located in the city of Vadodara.
(ii) For determining the price of one another nearby land in City, bearing City Survey Nos.12 and 13, Page 17 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined admeasuring 6125.64 sq.mtr. for granting the same on lease; Town Planner, Vadodara, in his Valuation Report dated 07.09.2006, applied the above sale instance of Rs.10,038.80 per sq.mtr. as on 25.01.2005, by doubling the same to come to the figure of Rs.20,077.60 per sq.mtr. and then, adding 15% escalation thereto (i.e. Rs.4927.38) for the period from 25.01.2005 to 07.09.2006, as per Circular dated 23.09.2002 ; to come to the figure of Rs.25004.98 per sq.mtr. To this, further addition was made i.e. 25% for being on main road + 25% for frontage + 10% locational advantage, so as to arrive at the figure of Rs.43,000 per sq.mtr. for the aforesaid piece of land of 6125.64 sq.mtr. to be granted to the Corporation on lease basis.
(iii) Thereafter, in furtherance of the aforesaid Valuation Report of Town Planner, DLVC in its meeting dated 13.09.2006, applied the aforesaid price of Rs.25004.98 as base price to the said land of City Survey Nos.12 and 13, admeasuring 6125.64 sq.mtr., while accepting the said Valuation Report dated 07.09.2006, except for addition of 10% for location advantage; so as to arrive at the rounded figure of Rs.40,000 per sq.mtr.
(iv) The Reference Court in the instant matter, has applied the aforesaid rate of Rs.25004.98 per Page 18 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined sq.mtrs. determined in case of the land bearing City Survey Nos.12 and 13, admeasuring 6125.64 sq.mtrs. by adding thereto an escalation amount @ 10% for 5 months (i.e. from 13.09.2006 to 09.02.2007) for arriving at the figure of Rs.26,048 per sq.mtrs. with respect to the subject land, admeasuring 1,22,718 sq.mtrs.
2. The aforesaid exercise undertaken by the Ld. Reference Court can be further appreciated in tabular format as under:
(i) Rs.10,038.80 --- As on 25.01.2005 w.r.t.
per sq.mtr. comparable piece of
taken as base land bearing City
in case of a Survey No.139
Sale Deed admeasuring 1992.27
executed - sq.mtrs. and located
nearby the subject
land
(ii) Rs.20,077.60 --- i.e. By doubling the
per sq.mtr. aforesaid rate as per
Circular dated
23.09.2002 (which is
not applicable to land
acquisition).
(iii) Rs.4927.38 --- i.e. By adding 15%
per sq.mtr. rate of escalation for
the period of 20
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months (i.e. from
25.01.2005 to
07.09.2006) by the
Town Planner in his
aforesaid Valuation
Report dated
07.09.2006 .
(iv) Rs.25004.98 --- Total of the amounts
per sq.mtr. referred to at Sr.nos.
(ii) and (iii) above.
(v) Rs.1043 per --- An escalation amount
sq.mtr. at 10% for 5 months
(i.e. from 13.09.2006,
i.e. date of DLVC
meeting to
09.02.2007, i.e. date of
Section 4 Notification).
(vi) Rs.26048 per sq.mtr. i.e. [Sr.no.(iv) + Sr.no.(v) above].
3. Thus, the above referred method of doubling the rate as per Circular dated 23.09.2002 (not meant for land acquisition) and then of adding 15% rate of escalation, has been unknown phenomenon to determine the reasonable market price of the land under the Act. It should be on the basis of the Page 20 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined genuine sale instance/s to be identified, keeping in mind proximity of time angle and proximity of situation angle. Unfortunately, the Reference Court lost sight of the aforesaid important aspect by following incorrect method of determining the market price of the subject land.
IV. Re: Sale transaction relating to smaller extent of land, when can be taken into consideration and while doing so, what percentage of deduction should be provided towards development cost for the larger tract of land:
1. As aforesaid, if no sale instances of comparable land of large tract are available, then in that case, land transactions in respect of smaller extent of land could be taken into account, but only after making appropriate deductions towards the development of land by providing enough space for roads, sewers, drains, expenses involved in formation of layout, etc. The said deduction varies from 25% to 75%.
2. In support of what is stated hereinabove, reliance is placed on the judgment of the Hon'ble Supreme Court in the following cases
(a) L. Kamalamma (SMT) Dead by LRS and Others, reported in (1998) 2 SCC 385;Page 21 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
(b) Lal Chand vs. Union of India and Another, reported in (2009) 15 SCC 769;
(c) Union of India vs. Dyagala Devamma, reported in (2018) 8 SCC 485;
(d) Union of India vs Premlata reported in 2022 7 SCC 745;
(e) Mala and Others vs. State of Punjab and Others, reported in 2023 SCC OnLine SC 1005.
V. Re: What should be the yearly percentage of escalation amount to be added to the genuine sale instance of past date:
1. If past sale instances are adopted as norm or base for comparison purposes, then in that case, yearly escalation amount at the rate of 10% p.a. may be provided for the period upto the date of Section 4 Notification.
2. To buttress the above proposition, the reliance is placed on the judgment of the Hon'ble Supreme Court in case of Executive Engineer, Karnataka Housing Board vs. Land Acquisition Officer, reported in (2011) 2 SCC 246, wherein it was observed as under:Page 22 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined "10. ... The relevant date for determination of compensation in this case is 06.02.1992 and there is a gap of three years for which appropriate appreciation has to be provided for. Having regard to the fact that the acquired lands were within the municipal limits with considerable development potential, adopting a cumulative increase of 10% per annum for three years, would enable us to arrive at the market value as on 06.02.1992." .....
(Emphasis supplied).
3. In support of what is mentioned above, reliance is placed on the judgment of this Hon'ble Court in case of State of Gujarat through Special Land Acquisition officer vs. Amaji Mohanji Thakore, reported in 2010 Vol.4 GLR 3589 and relied upon by the Respondents-Claimants herein, wherein it was observed in para 31 as under:
"31. ... As observed earlier, the Notification under Section 4(1) of the Act in the present case is on 1.12.2005, i.e. at one year and six months later to the aforesaid period of valuation. It is by now well settled that for every year 10% rise by way of appreciation is to be considered, ..."
(Emphasis supplied).
VI. Re: Instances of valuation in the matter of grant of lease-hold rights (i.e. Exhibits 146 and 147), relied upon by the Respondents-Claimants:
1. Respondents - Claimants have relied upon Exh. 146 Page 23 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined in respect of land bearing Survey Nos.553 and 554, admeasuring 21,141 sq. mtrs. and 4038 sq. mtrs. and Exh.147, in respect of land bearing City Survey Nos.12 & 13, admeasuring 6125.64 sq.mtrs., whereby, valuation of smaller parcels of land was determined for the purpose of granting the same on lease basis to the 3rd parties. The said valuation was on a higher side, while following Circular dated 23.09.2002, which cannot be made applicable in the matter of land acquisition and hence, the said valuation rate of Rs.28,800/- per sq. mtr. determined in case of Exh.146 and Rs.40,000/- determined in case of Exh.147, cannot be made use of in the present matter.
2. Without prejudice to what is mentioned hereinabove, it is submitted that even otherwise, the said instances in terms of Exh.146 and Exh.147 cannot be pressed in service in the present case inasmuch as the both the leases have never been fructified and hence, the said valuations have just remained on paper only.
3. In the above connection, reliance is placed on the observations of Ld. Reference Court in the impugned judgment and order in regard to Exh.146 relating to lands bearing Survey Nos.553 and 554, admeasuring 21,141 sq. mtrs. and 4038 sq. mtrs, to the following effect.
"Price determined at Rs.28,000/- per sq.mtr.Page 24 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined as per the Minutes of Meeting dated 17.04.2000 of the District Land Price Committee (DLPC), was subject to the confirmation by the State Land Valuation Committee (SLVC), since the total value of the said lands was exceeding Rs.50 lakhs and that SLVC had not confirmed the minutes of the DLPC's meeting referred to above."
4. Similarly, reliance is placed on the following ground 't' in regard to Exh.147 relating to land bearing City Survey Nos.12 and 13, admeasuring 6125.64 sq.mtrs., which is set out hereunder:
" t. That the Ld. Reference Court has even otherwise committed a grave error in considering the minutes of the meeting dated 13.09.2006 in respect of City Survey Nos.12 & 13 situated at Vadodara Kasba, since the said land was to be granted to the Vadodara Municipal Corporation on the lease basis, which was never fructified and therefore, the valuation of the said land could not have been relied upon in determining."
5. Even whilst assuming without admitting that the aforesaid valuation arrived at in Exh.147, is required to be considered, as sought to be done by the Ld. Reference Court, for determining the market price of the subject land as on 09-02-2007, then in that case, how the said determination and application thereof to the subject land is highly incorrect and improbable, has already been discussed herein above.
Page 25 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined VII. Re: Instances of valuation based on 'auction -
transactions' (i.e. Exhibits 148-149), for granting land on lease-hold basis:
1. Respondents - Claimants have relied upon Exh.148 in respect of land bearing FP No.166 paiki, admeasuring 2,200 sq.mtrs. and Exh.149 in respect of land bearing FP No.549/1, admeasuring 5,556.00 sq.mtrs., whereby, valuation of smaller parcels of land was determined on the basis of auction transactions, giving rise to the value of Rs.40,200 per sq.mtr. and Rs.45,500 per sq.mtr., respectively for granting the said lands on lease basis.
2. Reference Court has rightly not accepted the aforesaid two instances for the reasons that the said lands were fully developed and covered under the Town Planning Scheme, wherein scheme was already implemented after making the provision for main road / other amenities etc. Whereas, the subject land is in one single unit and its area is very large and the major portion thereof does not abut the main road.
Furthermore, the said lands under Exhs.148 and 149 vis-à-vis subject land, are situated in different areas and, therefore, the same otherwise cannot be compared.
3. Without prejudice to what is mentioned hereinabove, it is pertinent to note that the auction sales do not furnish a safe guide for determination of market value Page 26 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined and therefore, the reliance as sought to be placed by the Respondents-Claimants on the said Exhs.148 and 149 is highly misplaced.
4. For the aforesaid proposition, the Appellant-State relies upon the judgment of the Hon'ble Supreme Court in case of Executive Engineer, Karnataka Housing Board vs. Land Acquisition Officer, reported in (2011) 2 SCC 246, wherein it was observed as under:
"6. We may deal with the last submission first. The standard method of determination of market value of any acquired land is by the valuer evaluating the land on the date of valuation (publication of notification under section 4(1) of the Land Acquisition Act, 1894
- `Act' for short) notification, acting as a hypothetical purchaser willing to purchase the land in open market at the prevailing price on that day, from a seller willing to sell such land at a reasonable price. Thus, the market value is determined with reference to the open market sale of comparable land in the neighbourhood, by a willing seller to a willing buyer, on or before the date of preliminary notification, as that would give a fair indication of the market value. A `willing seller' refers to a person who is not acting under any pressure to sell the property, that is, where the sale is not a distress sale. A willing seller is a person who knowing the advantages and disadvantages of his property, sells the property after ascertaining the prevailing market prices at the fair and Page 27 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined reasonable value. Similarly, a willing purchaser refers to a person who is not under any pressure or compulsion to purchase the property, and who, having the choice of different properties, voluntarily decides to buy a particular property by assessing its advantages and disadvantages and the prevailing market value thereof. Of course, unless there are indications to hold otherwise, all sale transactions under registered sale deeds will be assumed to be normal sales by willing sellers to willing purchasers. Where however there is evidence or indications that the sale was not at prevailing fair market value, it has to be ignored. But auction sales stand on a different footing. When purchasers start bidding for a property in an auction, an element of competition enters into the auction. Human ego, and desire to do better and excel other competitors, leads to competitive bidding, each trying to outbid the others. Thus in a well advertised open auction sale, where a large number of bidders participate, there is always a tendency for the price of the auctioned property to go up considerably. On the other hand, where the auction sale is by banks or financial institutions, courts, etc. to recover dues, there is an element of distress, a cloud regarding title, and a chance of litigation, which have the effect of dampening the enthusiasm of bidders and making them cautious, thereby depressing the price. There is therefore every likelihood of auction price being either higher or lower than the real market price, depending upon the nature of sale. As a result, courts are wary of Page 28 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined relying upon auction sale transactions when other regular traditional sale transactions are available while determining the market value of the acquired land. This Court in Raj Kumar V/s. Haryana State - 2007 (7) SCC 609, observed that the element of competition in auction sales makes them unsafe guides for determining the market value." (Emphasis supplied).
5. Even whilst assuming without admitting that valuation determined on the basis of auction transaction, can be considered for applying the same to the subject land, then in that case also, as held by the Hon'ble Supreme Court in the aforesaid case of Executive Engineer, Karnataka Housing Board (Supra), where an open auction - sale is the only comparable sale transaction available and that too, on account of proximity in situation and time, the price disclosed by such auction - sales may be relied upon with caution, but after providing for an appropriate deduction or cut of to offset the competitive hike in value. In the above-referred judgment, the Hon'ble Supreme Court provided for deduction of 20% of the auction price, so as to apply the same to the land under acquisition, in terms of para 7 of the said judgment, reading as under :
"7. ..... Therefore, we are left with only the auction - sale transactions. On the facts and Page 29 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined circumstances, we are of the view that a deduction or cut of 20% in the auction price disclosed by the relied upon auction transaction towards the factor of `competitive
- price hike' would enable us to arrive at the fair market price."
Thereafter, in the very judgment, the Hon'ble Supreme Court in para 10 provided for addition of cumulative increase of 10% per annum by way of escalation for three years covering the period upto the date of Section 4 Notification, in the following fashion:
"10. ...... Having regard to the fact that the acquired lands were within the municipal limits with considerable development potential, adopting a cumulative increase of 10% per annum for three years, would enable us to arrive at the market value as on 6-2-1992. By applying such increase, the market value as on 6-2-1992 will be Rs.4,92,460/- per acre."
Interestingly, the Apex Court while proceeding further in the very case, directed for a deduction of 40% towards the cost of development in para 11 of the judgment, reading as under:
"11. ... Having regard to the partial access to infrastructural facilities, we are of the view that a deduction of 40% towards cost of development would meet the ends of justice. ... On applying a cut of 40%, the rate per acre for the acquired land as on 6-2-1992 Page 30 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined would be Rs.2,95,476/- (rounded off to Rs.2,95,500)."
6. If one were to adopt the aforesaid exercise in the present case; the valuations referred to in the aforesaid Exhibits, would be reduced drastically. However, there is no question of undertaking the said exercise in the present matter, more particularly when, sale instance of 25.01.2005, located nearby the subject land is available, whereas, there is no proximity in situation between the lands in question in aforesaid Exhibits 148 and 149, on one hand and the subject land, on the other.
VIII. Re: The Act does not authorize the award of interest / rent prior to issuance of Notification under Section 4 of the Act
1. The Ld. Reference Court has committed a grave error in awarding interest from 29.11.1991, while considering the date of the Judgment i.e. 29.11.1991 rendered by Ld. GRT, as the date of acquiring the possession of the subject land. In law, the Ld. Reference Court had no jurisdiction to award rent / interest at the rate of 15% for the period anterior to the Section 4 Notification, as the same would travel beyond the provisions of the Act.
2. Pertinently, the Respondents by virtue of Exh.121 dated 05.08.2021 sought an amendment for insertion of a prayer seeking interest @ 9% for the first year Page 31 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined and 15% after the period of one year till the actual payment is made, on the ground that since so many years, the subject land has been in the possession of the Appellant State. However, the law does not permit so. Despite this, the Ld. Reference Court, vide its impugned judgment, has granted interest / rent unlike award of damages / compensation, which is otherwise sought to be canvassed by the other side.
3. For the aforesaid proposition, Appellant - State relies upon the following judgment of the Hon'ble Supreme Court in case of Union of India v. Budh Singh & Ors., reported in (1995) 6 SCC 233, it was held as under:
"5. ... Thus, it would be seen that the court has no power to impose any condition to pay interest in excess of the rate and manner prescribed by the statute as well as for a period anterior to the publication of Section 4(1) notification under the Act. ... ... Any possession otherwise would not be considered to be possession taken under the Act.". (Emphasis supplied).
4. Further reliance is placed on a judgment by a Larger Bench of the Hon'ble Supreme Court in case of R.L. Jain vs. EDA reported in (2004) 4 SCC 79, it was held as under:
"12. ... Clearly, the stage for taking possession under the aforesaid provisions would be reached only after publication of the notification under Sections 4(1) Page 32 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined and 9(1) of the Act. If possession is taken prior to the issuance of the notification under Section 4(1), it would not be in accordance with Section 16 or 17 and will be without any authority of law and consequently cannot be recognized for the purposes of the Act. For parity of reasons the words 'from the date on which he took possession of the land' occurring in Section 28 of the Act would also mean lawful taking a possession in accordance with Section 16 or 17 of the Act. The words 'so taking possession' can under no circumstances mean such dispossession of the owner of the land which has been done prior to publication of notification under Section 4(1) of the Act which is de hors the provisions of the Act." (Emphasis supplied).
Pertinently, in para 18 of the aforesaid judgment, the Hon'ble Supreme Court has expressed to the effect that it would be for the Collector to determine the rent or damages for use of the property to which the land owner may be entitled while determining the compensation amount payable to the land owner for the acquisition of the property. Thus, this aspect of the matter has nothing to do with the direction of the Ld. Reference Court in granting interest and that too, @ 15% per annum for the period anterior to the issuance of Section 4 Notification i.e. 09.02.2007.
5. Later, even the coordinate Division Bench of this Hon'ble Court, has followed the aforesaid view in its judgment in case of General Manager vs. Chaudhary Mahotbhai Hirabhai, reported in Page 33 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 2018 SCC OnLine Guj. 4618, while holding inter alia, as under:
"26. The judgement noted above, in clear terms, hold that no interest can be awarded either under Section 28 or 34 of the Act prior to publication of notification under Section 4(1) of the Act. If the possession of the land is taken over without authority of law, it would be open for the land owner to seek damages or compensation through ordinary civil remedy..."
(Emphasis supplied).
6. Similar view has taken by this Hon'ble Court in one another judgment dated 11.05.2018 in case of Project Manager, ONGC Limited vs. Deputy Collector, rendered in First Appeal Nos.919 and 920 of 2023.
7. Apart from what is mentioned above, the Appellant - State also relies upon the following judgments, taking similar view that no interest can be awarded for the period anterior to Section 4 Notification.
(i) Delhi Development (2009) 5 SCC 339 -
Authority v. Mahender rel. paras 7, 8 & 9 Singh & Anr.
(ii) Ratibhai Sambhubhai Patel Order dated v. Oil & Natural Gas 06.04.2018 in SLP Corporation Ltd. & Anr. No.37719-37720/ 2016 Page 34 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
8. It may be noted that what was claimed by the Respondent-Claimant before the Reference Court was, 'interest', as discussed above and not 'damages' or 'mesne profit', as was argued before this Court on behalf of the Respondents - Claimants during the course of hearing.
In view of the above, the Respondents-Claimants are not entitled to any amount much less an amount of Rs.729,20,94,260.00 by way of interest as awarded by the Reference Court.
9. So far as any amount towards 'damages' is concerned, the same is also not grantable inasmuch as, the Respondents-Claimants had neither claimed any damages before the Reference Court nor has proved any damages purported to have been sustained by them, whilst assuming without admitting that the State Government was in possession of the subject land right from 29.11.1991 to 09.02.2007.
10. Similarly, the Respondents-Claimants are not entitled to any amount by way of mesne profit in the absence of any adjudication of any of their claim for determination of any mesne profit as per the provisions of Order XX Rule 12 of Code of Civil Procedure.
IX. Re: In absence of any categorical finding on the Page 35 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined aspect of 'possession' of the subject land with the State Government, the Ld. Reference Court erred in taking the date of the judgment of Ld. GRT i.e. 29.11.1991 as the base, for the purpose of award of interest for the period commencing from the said date till the date of Section 4 Notification, i.e. 09.02.2007.
1. Nowhere in the entire record, the Respondents-
Claimants have referred to any date on which they were dispossessed by the Appellant State. In fact, for the first time, by virtue of Exhibit-121 dated 05.08.202, a prayer came to be inserted in the Reference Application, seeking the grant of interest, at the rate of 9% for the first year and 15% after the period of one year till the actual payment is made, on the alleged ground that since so many years, the subject land is in the possession of the Appellant State.
2. Even the Reference Court, in its impugned Judgment has not given any conclusive finding on the aspect regarding the date from which the Appellant State could be said to have come into possession of the subject land. In fact, the Reference Court has concluded in this behalf, while observing to the following effect that:
"Nothing has come on record to suggest the particular time period during which Page 36 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the Appellant State came in possession of the subject land"
3. On the contrary, right from the decision of the GRT dated 29.11.1991 upto the Judgment dated 10.04.2006 of the Hon'ble Supreme Court, it has been categorically held that the subject land was in the ownership and possession of the land owners, i.e. Respondents-Claimants. For ready reference, the following excerpts from the said judgment dated 29.11.1991 of the GRT are set out hereunder:
"17. ... The fact that the Appellant and his father had given the suit land to other persons under different agreements proves the possession of the Appellant. ... "
"18. In this respect, it is also pertinent to note that when the City Survey Officer was directed to make an inquiry about the suit land which was lying open, the City Survey Officer inquired from different departments viz. Police Department, P.W. Department and Military Department whether they were in possession of the suit land but vide letter dated 5-9-61 the City Survey Officer was informed by the Circle Officer that on inquiry he was informed that the Police Department, Military Department and the P.W. Department were not in possession of the suit land (Page 75 Batch 5). Thus, the say of the appellant that he was in possession of the suit land and he used to give out the suit land to others on hire for different purposes, must be believed. The State Govt. or any of its departments has never claimed any possession of the suit land for any purpose, nor the State Govt. has been Page 37 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined able to prove its ownership on the suit land. ...."
"22. ... The appellant proves his possession of the suit land by documentary evidence as well as by agreements executed in 1944 ..."
"25. ... Under the circumstances, the State Govt. has not produced the relevant documentary evidence on record, the appellant has produced documentary evidence which was available to him, he has also shown his possession and it is proved that the appellant is the owner of 53 Bigha 17 Vasa of open land in B-TikaNo.27/15, 27/16 and 27/17. Admittedly no other department or the State Govt. was in possession of this land when the inquiry was started, while the appellant has proved his possession on the disputed land. ... "
"26. Order:- Appeal is allowed. ... The Appellant is held to be owner and in possession of the disputed land admeasuring 53 Bigha 17 Vasa of B-Tika No.27/15, 27/16 & 27/17 of Vadodara city."
4. Similarly, the judgment and order dated 21.03.1994 of the Trial Court in Special Civil Suit No.776 of 1992 filed by the Appellant-State challenging the aforesaid order dated 29.11.1991 of the Ld. GRT, categorically records to the effect that 'de-facto possession' or 'physical possession' of the subject land had been that of the Respondents-Claimants right from the time of their ancestors in the following words:
"પ્ર.વાદીના જણાવ્યા પ્રમાણે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છેઓનો તકરાર એવી છે તકરાર એવી છે તેઓનો તકરાર એવી છે Page 38 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined કે તેઓનો તકરાર એવી છે , વાદી તકરારી જમીનના કદી કબ્જામાં હતા નહિ અને છે હતા નહિ અને છેહ અને તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે પણ નહિ અને છેહ. તે તેઓનો તકરાર એવી છેમજ તૅઑ કદી તકરારી જમીનના માલિક પણ કદી તકરારી જમીનના માલિ ક પણ હતા નહિ અને છેહ અને તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે પણ નહિ અને છેહ. તકરારી જમીન પ્ર.વાદીના મૈ યે તેઓનો તકરાર એવી છેત વડી ો તકરાર એવી છેની માલિ કીની માલિ કીની હો તકરાર એવી છેવાની જણાવી સદર જમીનનો તકરાર એવી છે પ્રત્યક્ષ કબ્જો ભોગવટો પ્ર કબ્જો તકરાર એવી છે ભો તકરાર એવી છેગવટો તકરાર એવી છે પ્ર.વાદીઓના મૈ યે તેઓનો તકરાર એવી છેત વડી ો તકરાર એવી છેના સમયથીજ છે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છેમ જણાવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે . "
Similarly, the aforesaid judgment also records that the land owners denied that the subject land was ever in possession of Fatesinh Regiment or any other Department of the State Government.
"... તકરારી જમીન કદી પણ ફતે તેઓનો તકરાર એવી છેલિસહ ં હતા નહિ અને છે રે તેઓનો તકરાર એવી છેજિજમે તેઓનો તકરાર એવી છે ન્ટના કબ્જે તેઓનો તકરાર એવી છે હો તકરાર એવી છેવાનું હતા નહિ અને છે કે તેઓનો તકરાર એવી છે સરકારના બીજા કો તકરાર એવી છેઈપણ ખાતાના કબ્જે તેઓનો તકરાર એવી છે હો તકરાર એવી છેવાની વાત ખરી નથી તે તેઓનો તકરાર એવી છેમ જણાવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે . ... .." .
Furthermore, the said judgment records the admission made by the land owners that the subject land was in the ownership and possession of the land owners and it was never in the possession and ownership of the State Government or its any other Department. At the same time, in the said judgment, the arguments advanced on behalf of the land owners were recorded by, inter alia, stating that Police Training School of SRP was on the land adjoining to the subject land and the possession of the subject land was never in possession of the State Government, in the following fashion:
"...ખરે તેઓનો તકરાર એવી છેખર અમો તકરાર એવી છે પ્ર. વાદીના માલિ કી અને તેઓનો તકરાર એવી છે કબ્જામાં હતા નહિ અને છે જે તેઓનો તકરાર એવી છે જમીન છે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છે ક્યારે તેઓનો તકરાર એવી છે ફતે તેઓનો તકરાર એવી છેલિસહ ં હતા નહિ અને છે રે તેઓનો તકરાર એવી છેજિજમે તેઓનો તકરાર એવી છે ન્ટ એન્ડ સરકારના કો તકરાર એવી છેઈ પણ ખાતાના નામે તેઓનો તકરાર એવી છે દાખ થયે તેઓનો તકરાર એવી છે ી નથી. આથી તકરારી જમીન અમો તકરાર એવી છે પ્ર. વાદીઓની માલિ કી અને તેઓનો તકરાર એવી છે કબ્જાની છે તેઓનો તકરાર એવી છે . ... ... ...Page 39 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined ... વાદીના અહિ અને છે1કારીઓ જે તેઓનો તકરાર એવી છેવા કે તેઓનો તકરાર એવી છે પો તકરાર એવી છે ીસે તેઓનો તકરાર એવી છે ટ્ રે તેઓનો તકરાર એવી છેહિ અને છેનગ ં હતા નહિ અને છે સ્કૂ ના હિ અને છેપ્રહિ અને છેન્સપા એન્ડ બીજાઓએ અમો તકરાર એવી છેને તેઓનો તકરાર એવી છે ગે તેઓનો તકરાર એવી છેરકાયદે તેઓનો તકરાર એવી છે સર અને તેઓનો તકરાર એવી છે ખો તકરાર એવી છેટી રીતે તેઓનો તકરાર એવી છે મજ ં હતા નહિ અને છે રુ થયે તેઓનો તકરાર એવી છે ી સ્કીમનું હતા નહિ અને છે બાં હતા નહિ અને છે1કામ કરતા અટકાવે તેઓનો તકરાર એવી છે ા જે તેઓનો તકરાર એવી છેથી અમો તકરાર એવી છેને તેઓનો તકરાર એવી છે ૧૧૩૨/૯૨ નો તકરાર એવી છે દાવો તકરાર એવી છે દાખ કરે તેઓનો તકરાર એવી છે ો તકરાર એવી છે અને તેઓનો તકરાર એવી છે પે તેઓનો તકરાર એવી છેહ ો તકરાર એવી છે વાદીની પો તકરાર એવી છે ીસ ટ્રે તેઓનો તકરાર એવી છેહિ અને છેનગ ં હતા નહિ અને છે સ્કૂ અને તેઓનો તકરાર એવી છે એસ.આર.પી. ગ્રુપ બને તેઓનો તકરાર એવી છે અમારી બાજુની સરકારી જમીનમાં હતા નહિ અને છે આવે તેઓનો તકરાર એવી છે ા છે તેઓનો તકરાર એવી છે . તકરારી જમીન કે તેઓનો તકરાર એવી છે જે તેઓનો તકરાર એવી છેનું હતા નહિ અને છે ક્ષ કબ્જો ભોગવટો પ્રે તેઓનો તકરાર એવી છેત્રફ્ળ ૧૩ ૧૩.૫ લાખ ચો ાખ ચો તકરાર એવી છે. ફૂટ થાય છે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છે ખુલ્ ી એન્ડ પડતર જમીનમાં હતા નહિ અને છે વાદી અરગ તે તેઓનો તકરાર એવી છેના કો તકરાર એવી છેઈ ખાતાએ કો તકરાર એવી છેઈ પણ વાપર કરવો તકરાર એવી છે હો તકરાર એવી છેય તો તકરાર એવી છે તે તેઓનો તકરાર એવી છે કાયદામાં હતા નહિ અને છે કબ્જો તકરાર એવી છે પડી શકાય નહિ અને છેહ. એવો તકરાર એવી છે વાપર માત્ર નીયર યુઝર છે તેઓનો તકરાર એવી છે અને તેઓનો તકરાર એવી છે હિ અને છેનયર યુઝરથી અમો તકરાર એવી છે પ્ર.વાદી અમારી માલિ કીની જમીનમાં હતા નહિ અને છેથી હિ અને છેડસ્પજે તેઓનો તકરાર એવી છેસ થતા નથી. કે તેઓનો તકરાર એવી છે જમીનનો તકરાર એવી છે કબ્જો તકરાર એવી છે ગુમાવતા નથી. અમો તકરાર એવી છે પ્ર. વાદી કહે તેઓનો તકરાર એવી છે વા પ્રમાણે તેઓનો તકરાર એવી છે તકરારી જમીન ખુલ્ ી અને તેઓનો તકરાર એવી છે હિ અને છેવશાળ ૧૩ જગ્યા છે તેઓનો તકરાર એવી છે . સદર જમીન અમારી માલિ કીની છે તેઓનો તકરાર એવી છે . અમો તકરાર એવી છે પ્ર.વાદીના કબ્જે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે . વાદી અગર તે તેઓનો તકરાર એવી છેના કો તકરાર એવી છેઈ ખાતાએ અમારી જમીનના થો તકરાર એવી છેડાક ભાગનો તકરાર એવી છે કો તકરાર એવી છેઈ ક્ષ કબ્જો ભોગવટો પ્રજિણક ઉપયો તકરાર એવી છેગ કયો તકરાર એવી છેB હો તકરાર એવી છેય તો તકરાર એવી છે તે તેઓનો તકરાર એવી છેવા ઉપયો તકરાર એવી છેગથી વાદીનો તકરાર એવી છે કબ્જો તકરાર એવી છે લિસદ્ધ થતો નથી થતો તકરાર એવી છે નથી. અમારી જમીનમાં હતા નહિ અને છે .વાદીએ વૃક્ષ કબ્જો ભોગવટો પ્રારો તકરાર એવી છેપણ કરે તેઓનો તકરાર એવી છે ા ની હકીકત ખરી નથી અને તેઓનો તકરાર એવી છે કાબુ નથી. અમારી જમીનમાં હતા નહિ અને છે વો તકરાર એવી છે ફે તેઓનો તકરાર એવી છે ાઈ લિબગ હિ અને છેવગે તેઓનો તકરાર એવી છેરે તેઓનો તકરાર એવી છે હો તકરાર એવી છેવાની હલિકકત ખરી નથી અને તેઓનો તકરાર એવી છે કાબુ નથી. તકરારી જમીન કસરત માટે તેઓનો તકરાર એવી છે , પરે તેઓનો તકરાર એવી છેડ માટે તેઓનો તકરાર એવી છે કે તેઓનો તકરાર એવી છે કો તકરાર એવી છેઈ સે તેઓનો તકરાર એવી છેલિ બ્રશે તેઓનો તકરાર એવી છેન માટે તેઓનો તકરાર એવી છે પો તકરાર એવી છે ીસે તેઓનો તકરાર એવી છે ખાતા કે તેઓનો તકરાર એવી છે એસ.આર.પી. ના જવાનો તકરાર એવી છે મારફતે તેઓનો તકરાર એવી છે ઉપયો તકરાર એવી છેગ થતો તકરાર એવી છે હો તકરાર એવી છેવાની વાત ખરી નથી. તકરારી જમીન કદી પણ વાદીના કબ્જે તેઓનો તકરાર એવી છે હો તકરાર એવી છેવાની ખરી નથી અને તેઓનો તકરાર એવી છે અમો તકરાર એવી છેને તેઓનો તકરાર એવી છે કાબુ નથી."
"મુદ્દાઓ ...
(૩) શું હતા નહિ અને છે વાદી પુરવાર કરે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે કે તેઓનો તકરાર એવી છે , તે તેઓનો તકરાર એવી છેઓ તકરારી જમીનનો તકરાર એવી છે માલિ કી હક્કે તેઓનો તકરાર એવી છે કાયદે તેઓનો તકરાર એવી છે સર કબ્જો તકરાર એવી છે 1રાવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે ?
...
ઉપરો તકરાર એવી છેક્ત મુદ્દાઓના હિ અને છેનણBયો તકરાર એવી છે નીચે તેઓનો તકરાર એવી છે પ્રમાણે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે .
(૩) ના. ...."
Ultimately, while answering Issue No.3 as to whether the State Government proves that it is in Page 40 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined possession of the subject land?, the Trial Court answered the same in 'No', after recording a categorical finding that it cannot be believed that the State Government was ever in possession of the subject land, in the following words:
"... પરં હતા નહિ અને છેતુ મુદ્દા નં હતા નહિ અને છે.૩ ને તેઓનો તકરાર એવી છે ાગે તેઓનો તકરાર એવી છે વળ ૧૩ગે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે ત્યાં હતા નહિ અને છે સુ1ી માલિ કી હક્કે તેઓનો તકરાર એવી છે કે તેઓનો તકરાર એવી છે પો તકરાર એવી છેતાને તેઓનો તકરાર એવી છે કબ્જો તકરાર એવી છે સો તકરાર એવી છે ં હતા નહિ અને છેપવામાં હતા નહિ અને છે આવ્યો તકરાર એવી છે હો તકરાર એવી છેય તે તેઓનો તકરાર એવી છે હક્કે તેઓનો તકરાર એવી છે વાદી આ જગ્યાનો તકરાર એવી છે કબ્જો તકરાર એવી છે 1રાવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છેવું હતા નહિ અને છે ક્યાં હતા નહિ અને છેય તે તેઓનો તકરાર એવી છેવો તકરાર એવી છે સાલિબત કરી શકયા નથી. આથી મુદ્દા નં હતા નહિ અને છે. ૨ -૩ નો તકરાર એવી છે જવાબ પણ નામાં હતા નહિ અને છે આપવામાં હતા નહિ અને છે આવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે . ... " (pg.66 in PB).
5. It may be noted that this Court, vide its judgment dated 07.05.2002 in FA Nos.969 of 1994, confirmed the aforesaid judgment of the Ld. Trial Court and while doing so, granted status quo as regards physical possession of the subject land, while recording the following statement made on behalf of the Respondents-Claimants, against the contrary version presented on behalf of Appellant-State.
"However, as per the submission of learned Senior Advocate Shri Vakharia and Shri Vakil appearing for the respondents, they are in possession."
6. The aforesaid judgment of this Court was further carried in appeal, wherein the Hon'ble Supreme Court, vide its judgment dated 10.04.2006, rendered in Civil Appeal No.7898-7900 of 2002, confirmed all the above-referred three judgments dated 29.11.1991 of the GRT, dated 21.03.1994 of the Trial Court and dated 07.05.2002 of this Court, while inter alia, Page 41 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined observing as under as regards the aspect of possession:
" ... The Tribunal also recorded a finding that respondent No.1 and his father had given the suit lands to other persons under different agreements which proved that possession over the lands in question. As against this, the State Government was unable to produce any satisfactory evidence to prove that any other Survey Number was acquired for the purposes of Fatehsinh Regiment. ...".
7. It is very important to note that against the specific and positive finding as regards possession of the subject land being with the Respondents-Claimants right upto 09.02.2007 when Section 4 Notification was issued, as concurrently arrived at by three different authorities and the Courts in hierarchy and finally confirmed by the Hon'ble Supreme Court, as discussed hereinabove; various pieces of documentary evidence referred to hereunder and relied upon by the Respondents-Claimants; pale into insignificance and cannot, by any stretch of imagination, be taken into account.
(i) Copy of Panchnama drawn on 06.09.1992 in Civil Appeal No.194/1992 (Exh.134),
(ii) Copy of plaint in Special Civil Suit No.776/1992 filed by the Appellant State (Exh.135),
(iii) Deposition of Commandant Mr. Malhar Rao in Page 42 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Special Civil Suit No.776/1992 (Exh.136),
(iv) Letter dated 28.05.2002 addressed by Superintendent of Land Records to Collector, Vadodara (Exh.150),
(v) Proposal dated 18.09.2006 and 25.09.2006 of the Commandant, SRPF, Vadodara to Special Land Acquisition Officer (Exh.183).
Under the circumstances, all the aforesaid documents would be of no avail to Respondents- Claimants to state something about the possession of the subject land, contrary to final findings as arrived at by the Hon'ble Court, in that behalf.
8. Further, it is not legally permissible to the Respondents-Claimants to contend that the concurrent finding of the authority and the Courts, duly confirmed by the Hon'ble Supreme Court and referred to above, was in respect of 'de jure possession' and not 'de facto possession'. It may be true that originally Section 37(2) inquiry was in respect of title qua the subject land, but what followed thereafter right from the orders of the Mamlatdar, Collector, and thereafter from the Ld. GRT to Hon'ble Supreme Court, was the controversy in respect of title as well as 'de facto possession' or 'physical possession', wherein the issue relating to physical possession was writ large, which was finally confirmed in favour of the Respondents-Claimants by the Hon'ble Supreme Court.
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9. Even otherwise, when one discusses about the 'title' to the land in question, the title holder is always deemed to be a de jure possessor and that, therefore, one does not necessarily discuss about de jure possession when the title is admitted. Therefore, under such circumstances whenever an issue of possession is referred, it is always about de facto possession or physical possession.
X. Re: Award of rent / interest by the Ld. Reference Court @ 15% interest prior to the date of Section 4 Notification Assuming without admitting that the Ld. Reference Court had jurisdiction to award rent / interest prior to the date of Section 4 Notification, then in that case also, the Ld. Reference Court has committed a grave error in awarding whopping interest @ 15%. The Ld. Reference Court ought not to have granted interest at such a huge rate, since the State Government has, vide Government Resolution dated 18.06.1986, prescribed the rate of interest in case of the acquisition of land with agreement to be @ 9% from the date of taking over of such possession.
XI. Re: Production of Additional Evidence under Order 41 Rule 27 Page 44 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
1. By virtue of Civil Application No. 3 of 2023, the Appellant State has proposed to produce 15 additional documents i.e. Annexures - A2 to A16. Out of the said 15 documents, the documents from Annexures - A2 to A9 are the public documents and have been directly or indirectly referred to in the land reference proceedings. Whereas, the documents from Annexures - A10 to A16, are the Agreements entered into between the land owners and third parties in respect of very subject land and therefore, have direct bearing upon the adjudication of the present appeal. These documents would not only enable this Hon'ble Court to pronounce the judgment, but would further the substantial cause in the captioned appeal.
For the aforesaid proposition, Appellant State relies upon the following judgments:
(i) Malayalam Plantations (2010) 13 SCC 487 -
Limited v. State of Kerala & rel. paras 12 to 20 Anr.
(ii) Uttaradi Mutt v. (2018) 10 SCC 484 -
Raghavendra Swami Mutt rel. paras 1, 2, 6, 8 to 12, 16
(iii) Sanjay Kumar Singh v. (2022) 7 SCC 247 -
State of Jharkhand rel. paras 1 to 2.2, 5, 7 to 11
(iv) Dashratbhai Jethabhai Patel (2022) 4 GLH 125 -
& Ors. v. State of Gujarat rel. paras 2 to 2.2, 7 to 7.2.4 & 9 to Page 45 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 10.4 XII. Re: Remand of the matter to learned Reference Court for reconsideration and a decision afresh.
As discussed hereinabove, the Ld. Reference Court has committed a grave error while not keeping in mind the rules evolved by this Hon'ble Court as well as the Hon'ble Supreme Court in the matter of determining the market price of the subject land. The Ld. Reference Court has neither given any deduction whatsoever which is otherwise a matter of rule, to be granted in case where the sale instance of a smaller land is to be applied to a larger extent of land. Further, the method adopted by the Ld. Reference Court in making the sale price double and further adding interest @ 15%, is inherently flawed. The findings recorded by the Ld. Reference Court are based on, no direct and relevant evidence and hence, the same unsustainable and unjustified and that the consequent decree passed by the Ld. Reference Court is liable to be reversed. Even otherwise, in the backdrop of additional evidence sought to be produced by the Appellant State, the same can only be appreciated, once the matter is remanded back to the Ld. Reference Court to consider the same and decide the case afresh For the aforesaid proposition, Appellant - State relies upon the following judgments:
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(i) Project Manager, ONGC CAV Judgment Limited v. Deputy Collector. dated 11.05.2018 in First Appeal No.919 of 2003 -
rel. paras 6 to 9
(ii) Gajanand & Ors v. State of (2012) 12 SCC Maharashtra & Anr. 286 - rel. paras 10 to 15
(iii) Mohan Kumar v. State of (2017) 4 SCC 92 -
Madhya Pradesh & Ors. rel. paras 18 to 20
(iv) Corporation of Madras & Anr. (2018) 9 SCC 445 v. M. Parthasarathy & Ors. - rel. paras 12 to 21
(v) General Manager, Oil & Oral Judgment Natural Gas Corporation dated 05.02.2014 Limited v. Sp. Land in First Appeal Acquisition Officer No.4182 of 2008.
(vi) General Manager, ONGC v. Oral Judgment
Patel Kanaiyalal Giridhardas dated 09.06.2015
in First Appeal
No.1724 of 2008.
XIII. Re: Appellants State's comments as regards non-
applicability of the Judgments cited by Ld. Senior Advocate Shri Mihir Thakore, on behalf of Respondents-Claimants:
On the aspect of grant of additional interest for a period prior to notification under Section 4(1) Page 47 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of the Act:
1. R.L. Jain (D) By Lrs. v. Delhi Development Authority, reported in (2004) 4 SCC 79.
The Respondents-Claimants have relied on paras 12 to 18 of the said judgment. Para 18 is sought to be relied heavily by the Respondents to contend that when possession is taken prior to the issuance of the preliminary notification, it will be just and equitable for the Collector to determine the rent or damages for use of the property while determining the compensation amount. First of all, it was not the case of the Respondents before the learned Reference Court that at any point of time they were seeking damages/rent in lieu of dispossession prior to issuance of preliminary notification. Infact, the Respondents by virtue of Exh.121 dated 05.08.2021 sought an amendment for insertion of a prayer seeking interest @ 9% for the first year and 15% after the period of one year till the actual payment is made, on the ground that since so many years, the subject land has been in the possession of the Appellant - State. Whereas, the said judgment categorically observes in Para 16, that a view taken in the matter of Asst. Commr. Gadag Sub-Division v.
Mathapati Basavannewwa, for granting an additional amount at 12 percent per annum from the date of taking possession, as incorrect view and upheld the Page 48 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined view taken in case of Special Tehsildar (LA) PWD Schemes v. M.A Jabbar, to be correct one, which held that claimant would not be entitled to additional sum for the period anterior to publication of notification under Section 4(1). Accordingly, the learned Reference Court has erred in awarding the interest at rate of 15% for the period anterior to Section 4 Notification. This apart, in Para 18 of the aforesaid judgment, the Hon'ble Supreme Court observes that where the landowner is dispossessed prior to issuance of notification under Section 4(1) of the Act, it is open for the landowner to recover the possession by taking appropriate legal proceedings. In this view of the matter, the said judgment would not be of any help to the Respondents.
2. Balwan Singh & Ors. v. Land Acquisition Collector & Anr., reported in (2016) 13 SCC 412.
3. Taher Khotoon & Ors. v. Revenue Divisional Officer/ Land Acquisition Officer & Ors., reported in (2014) 13 SCC 613.
4. Madishetti Bala Ramul (Dead) By Lrs. v. Land Acquisition Officer, reported in (2007) 9 SCC 650. In case of Balwan Singh (Supra), the Hon'ble Supreme Court after taking into note the earlier Page 49 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined judgments in case of Madishetti Bala Ramul v. Land Acquisition Officer, reported in (2007) 9 SCC 650 and Tahera Khotoon v. Land Acquisition Officer, directed to award additional interest by way of damages @ 15 % from the date when the claimants were dispossessed. It is submitted that the instant judgment is rendered by the two Ld. Judges and though it refers to the Judgment of R.L Jain (supra), it took the view other than what is expressed by three Ld. judges in R.L Jain's case (supra). In R.L Jain's case (supra), the Hon'ble Supreme Court has clearly held as under:
"12. ... Clearly, the stage for taking possession under the aforesaid provisions would be reached only after publication of the notification under Sections 4(1) and 9(1) of the Act. If possession is taken prior to the issuance of the notification under Section 4(1), it would not be in accordance with Section 16 or 17 and will be without any authority of law and consequently cannot be recognized for the purposes of the Act. For parity of reasons the words 'from the date on which he took possession of the land' occurring in Section 28 of the Act would also mean lawful taking a possession in accordance with Section 16 or 17 of the Act. The words 'so taking possession' can under no circumstances mean such dispossession of the owner of the land which has been done prior to publication of notification under Section 4(1) of the Act which is de hors the provisions of the Act."Page 50 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined (Emphasis supplied).
Therefore, all the three Judgments of the 2 Judge Bench, in respect of grant of 15 % additional interest runs contrary to the Judgment of the 3 Judge Bench in case of R.L Jain (supra), and thus, they would be of no avail to the Respondents. Even otherwise, on the facts, in all the three Judgments, there was an admitted date of dispossession of the claimants. Whereas, in the instant case, the aspect of 'title and possession' remained seriously disputed all throughout the earlier proceedings and it became final only after the Judgement of the Hon'ble Supreme Court on 10.04.2006.
On the aspect of interest on Aggregate Amount:
5. Sunder v. Union of India, reported in 2001 (7) SCC 211.
6. Gurpreet Singh v. Union of India, reported in 2006 (8) SCC 457.
The Respondents have relied upon the aforesaid judgements on the point that the person entitled to compensation awarded is also entitled to get interest on the aggregate amount including solatium. There is no dispute on the said proposition of law. The fundamental objections to the judgment and order of the ld. Reference Court are with regard to method adopted for determination the market value of the Page 51 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined subject land and the award of additional interest at the rate of 15% per annum for the period anterior to Section 4 Notification. As both, the method adopted for determination of market value and the award of additional interest are against the settled principles of law.
On the aspect of determination of market value by working out the average of price paid under different sale transactions :
7. Mehrawal Khewalji Trust & Ors. v. State of Punjab, reported in 2012 (5) SCC 432.
The Respondents have relied upon the aforesaid judgement to contend that for determination of the market value, the method of working out the average price paid under different sale transactions should not have been adopted. However, the said proposition is not absolute and the same can be discerned from the very judgment, in which, relevant portion of para 15 reads as under:
"15. In State of Punjab v. Hans Raj this Court has held that the method of working out the "average price" paid under different sale transactions is not proper and that one should not have, ordinarily recourse to such method..." Emphasis supplied In the instant case, the sale transactions Page 52 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined available were for smaller extent of land and therefore, the method adopted by the Land Acquisition Officer in averaging out these sale transaction cannot be faulted with.
On the question of Market Value
8. Major General Kapil Mehra & Ors. v. Union of India & Anr., reported in (2015) 2 SCC 262.
Firstly, this judgement was relied upon by the Respondents-Claimants to contend that the leasehold land can be considered as comparable land for determination of the market value of the freehold land with an addition of 20% to arrive at the value of freehold property. Secondly, while relying on paragraphs 29 to 32, 34, 36, 39, 40 (15) and 40 (16) of the aforesaid judgment, it was contended that in the case at hand, no such development would be required as the land would be used as parade ground and therefore, there is no question of deduction towards development. So far as the first contention is concerned, it is pertinent to make clear that the Exh.147 which was relied upon by the ld. Reference Court for determining the compensation had never been culminated into a transfer by lease. A challenge to this effect is also raised in Ground 't' ( in Appeal Memo, which is set out as under:
" t. That the Ld. Reference Court has even Page 53 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined otherwise committed a grave error in considering the minutes of the meeting dated 13.09.2006 in respect of City Survey Nos.12 & 13 situated at Vadodara Kasba, since the said land was to be granted to the Vadodara Municipal Corporation on the lease basis, which was never fructified and therefore, the valuation of the said land could not have been relied upon in determining."
Whereas, so far as the lease deeds at Exh.148 and Exh.149 referred to by the Ld. Reference Court are concerned, the ld. Reference court has rightly not accepted the said two instances for the reasons that the said lands were covered under the Town Planning Scheme, wherein scheme was already implemented after making the provision for main road / other amenities etc. Whereas, the subject land is in one single unit and its area is very large and major portion does not abut the main road. Furthermore, the said lands under Exhs.148 and 149 vis-à-vis subject land, are situated in different areas and, therefore, the same are otherwise not comparable. So far as, the contention regarding, no need to give any deduction towards development cost is concerned, the same is highly misplaced, in asmuch as, apart from the use of the subject land as parade ground, other uses such as roads, buildings and other facilities are presently in existence and further many such other uses are also in contemplation. It has Page 54 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined already been pointed out hereinbefore, that the Ld. Reference Court has ignored the factors pertaining to the characteristics of the subject land viz. (i) Large tract of land admeasuring 1,22,718 sq. mtrs., (ii) Being in the shape of the strip of land. (iii) Having more depth rather than frontage, which is practically very minuscule portion, as compared to the entire long periphery of the subject land. (iv) Low-lying to the extent of 1.22 cubic mtrs. from surface of the main road, requiring filing up, entailing expense for the same, (v) Existence of water body admeasuring about 10 vighas, (vi) Existence of railway track just adjacent to entire strip of land on its southern side, etc. Therefore, the contention that no development would be required as the subject land would only be used for the purposes of parade ground, is required to be rejected.
9. General Manager, Oil and Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel, reported in (2008) 14 SCC 745.
The Respondents-Claimants have relied upon this judgment which lays down the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands. In the said judgment, the Hon'ble Supreme Court held that since the acquisition was in rural area an escalation of 7.5 % per annum (i.e. half Page 55 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of the increase in market value of lands in urban/semi-urban areas which is about 10 to 15 %) over the 1987 price under Exh. 15 would be sufficient and appropriate to arrive at the market value of acquired lands. Therefore, given the facts of the present case, the same would not be applicable. Whereas, the Judgment cited on behalf of the Appellant - State, in case of Executive Engineer, Karnataka Housing Board vs. Land Acquisition Officer, reported in (2011) 2 SCC 246 (Judgment No. 10) - it has been observed as under:
"10. ... The relevant date for determination of compensation in this case is 06.02.1992 and there is a gap of three years for which appropriate appreciation has to be provided for. Having regard to the fact that the acquired lands were within the municipal limits with considerable development potential, adopting a cumulative increase of 10% per annum for three years, would enable us to arrive at the market value as on 06.02.1992." .....(Emphasis supplied).
Therefore, the aforesaid Judgment in case of Executive Engineer, Karnataka Housing Board (supra) would squarely be applicable, to the subject land being situated within the municipal limits of Vadodara city.
10. Ashok Kumar & Anr. v. State of Haryana, reported in (2016) 4 SCC 544.
Page 56 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined The Respondents have relied upon this Judgment to put forth the proposition of law that the Reference Court can always award higher compensation than that claimed by the claimants. There can be no qualm to the said proposition of law. The entire challenge is based on the method adopted by the Ld. Reference Court in determining the market value of the land while ignoring the vital factors which would have significant bearing upon the determination of market value.
Gujarat High Court Judgements for grant of 15% additional interest from date of possession till Section 4(1) of the Act:
11. Judgement dated 17.01.2020 in First Appeal No. 5828 of 2019 in case of heirs of Decd. Nagjibhai Valabhai v. Second Additional Special Land Acquisition Officer & Ors.
12. Judgement dated 20.08.2018 in First Appeal No. 1213 of 2016 in case of Heirs of Decd. Velabhai Valalbhai v. Second Additional Special Land Acquisition officer.
Both the aforesaid Judgements are rendered by Ld. Single Judges of this Hon'ble Court, while relying upon the Judgement in case of Balwan Singh (Supra), to grant additional interest by way of Page 57 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined damages at the rate of 15% per annum from the date of dispossession for the period prior to notification under Section 4 of the Act. For the reasons, already indicated hereinabove the Judgement in case of Balwan Singh (Supra) runs contrary to the three Judge Bench Judgment in R.L Jain's case (supra). Furthermore, even on facts of these judgements of this Hon'ble Court, the aspect of the dispossession was not disputed and there was a clear cut date of dispossession provided. It is pertinent to note that the Ld. Division Bench of this Hon'ble Court in case of General Manager vs. Chaudhary Mahotbhai Hirabhai, reported in 2018 SCC OnLine Guj. 4618 has rightly considered the three Judge Bench Judgment rendered in case of R.L.Jain (supra), in the following manner:
"26. The judgement noted above, in clear terms, hold that no interest can be awarded either under Section 28 or 34 of the Act prior to publication of notification under Section 4(1) of the Act. If the possession of the land is taken over without authority of law, it would be open for the land owner to seek damages or compensation through ordinary civil remedy..." (Emphasis supplied).
Similar view has taken by this Hon'ble Court in one another judgment dated 11.05.2018 in case of Project Manager, ONGC Limited vs. Deputy Collector, rendered in First Appeal Nos.919 and 920 Page 58 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of 2023. In this view of the matter, even the judgements of this Hon'ble Court would be of no help to the Respondents.
On the aspect of 'legal possession' and 'de facto possession':
13. Seksaria Cotton Mills Limited & Ors. v. State of Bombay, reported in (1953) 1 SCC 561.
14. Sadashiv Shyama Sawant (Dead) through Lrs. & Ors. v. Anita Anant Sawant, reported in (2010) 3 SCC 385.
The Respondents have relied upon the aforesaid Judgements to contend that all orders/judgments, right from Ld. GRT to the Hon'ble Supreme Court talk about legal possession of the Respondents- Claimants without de facto possession. Therefore, the same cannot be a ground for not granting rent/damages for a period prior to issuance of Section 4 Notification. At the outset, it is stated that one cannot have any qualm with the proposition laid down in the aforesaid Judgments of the Hon'ble Supreme Court. However, the same cannot be made applicable to facts obtained in the present matter. The Respondents-Claimants cannot be allowed to approbate and reprobate on the aspect of possession. All throughout the proceedings for title and possession, right from the Ld. GRT to the Hon'ble Page 59 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Supreme Court, the Respondents-Claimants have on top of their voice, claimed to be in the 'physical possession' of the subject land. The aspect of the physical possession of the Respondent-Claimants is widely discussed in the orders/judgements of all the foras and the same are highlighted in above Para - X of these submissions in detail, which would go to show that the contest between the Respondents and the Appellant - State all throughout before the different foras were in respect of 'physical possession' and not with respect to legal possession. It is now at the hindsight, it is sought to be canvassed otherwise, and that too, at this stage of the matter.
15. Order dated 23.01.2017 in Civil Appeal No. 834- 835 of 2017 in case of Baldevji Sakraji Thakor v. Group General Manager, ONGC & Anr. of the Hon'ble Supreme Court.
The Respondents-Claimants have also relied upon the aforesaid order passed by the Hon'ble Supreme Court, wherein it set-aside the order of the High Court and upheld the order of the ld. Reference Court awarding interest from the date of such possession was taken and handed over pursuant to the provisions of Section 35 of the Act. It is pertinent to note that in the said case, the possession was taken pursuant to the provisions of Section 35 of the Act, followed by possession receipt dated 13.03.1989 which embodied the terms and conditions on which Page 60 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined possession was handed over including the fixation of rent for the period of three years. In this background of facts, the ld. Reference Court awarded interest from the date of possession and directed that amount of rent already paid to the land-owners shall be adjusted. The relevant paragraph 6 of the said judgement is as under:
"6. Insofar as award of interest is concerned, from the "possession receipt"
dated 13.03.1989 emboding the terms and conditions subject to which possession was handed over by the landowner it is clear that such possession was taken and handed over pursuant to the provisions of Section 35 of the Act. The terms and conditions of handing over of possession including the fixation of rent, therefore, would remain in force for a period of three years. The Reference Court in its order dated 10.05.2013 took note of the above facts and while awarding interest from the date of possession as per the rates set out in Section 34 of the Act, had specifically directed that the amount of rent paid to the land-owners should be deducted therefrom.
7. We find no infirmity in the conclusion to the above effect as recorded by the learned Reference Court. Accordingly, we set aside the order of the High Court insofar as interest is concerned and restore the interest awarded by the Reference Court."
Page 61 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined First of all, such facts are not borne out in the present matter. Secondly, this Hon'ble Court had an occasion to consider the said order passed in Baldevji Sakraji Thakor's case, in case of General Manager vs. Chaudhary Mahotbhai Hirabhai, reported in 2018 SCC OnLine Guj. 4618, wherein, it was observed as under:
"30. We are not oblivion to the decision of the Supreme Court in case of Baldevji Shakraji Thakor (supra). It was a case in which the reference Court had awarded interest under Section 34 of the Act from the date of taking possession by the ONGC after adjusting the rent which might have been paid for the interregnum period. The reference Court issued direction making interest payable from the date of publication of Notification under Section 4 of the Act. The High Court modified this direction regarding interest. Upon further appeal, the Supreme Court restored the award of the reference Court in this respect. In case of Baldevji Shakraji Thakor (supra), the judgment of the three Judge Bench of the Supreme Court in case of R.L. Jain (supra) was not cited. At any rate, we do not discern the ratio laid down by the Supreme Court in case of Baldevji Shakraji Thakor (supra) that upon temporary occupation of the land under Section 35 of the Act by the ONGC, which, later on culminated into acquisition under Section 11 of the Act, interest would be payable on the Page 62 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined enhanced compensation from the date of possession.
31. We notice, that later on, the Supreme Court in case of Ratibhai Shambhubhai Patel Through POA Holder v. Oil and Natural Gas Corporation Ltd. in order dated 18.04.2018 passed in Civil Appeal arising out of SLP(C) No. 37719-37720 of 2016 provided that there shall be no interest prior to issuance of Notification under Section 4 of the Act even if the possession had been taken earlier. It was left open to the land owners to claim damages in appropriate proceedings."
In this view of the matter, neither on facts nor on the law, the order passed in Baldevji Sakraji Thakor's case would be helpful to the Respondents- Claimants.
On the aspect of production of additional evidence:
16. Union of India v. Ibrahim Uddin, reported in (2012) 8 SCC 148.
The Respondents-Claimants have relied upon this judgment to canvass their submission that if the Court can pronounce a Judgment on a material available on record, then application for additional evidence should be discarded. For the sake of repetition, it is stated that the Appellant - State has proposed to produce 15 additional documents i.e. Page 63 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Annexure A2 to A16. Out of the said 15 documents, the documents from A2 to A9 are the public documents and have been directly or indirectly referred to in the land reference proceedings. Whereas, the documents from Annexures A10 to A16 are the Agreements entered into between the land owners and third parties in respect of very subject land and therefore, have direct bearing upon the adjudication of this present appeal. These documents would not only enable this Hon'ble Court to pronounce the judgment, but would further the substantial cause in the captioned appeal. Therefore, in facts of the present case, the aforesaid judgement would be of no avail to the Respondents-Claimants.
XIV. Re: Appellant State's comments as regards non-applicability of the Judgments cited by Senior Advocate Shri P.K.Jani, on behalf of the Respondents - Claimants:
17. Chimanlal Hargovindas vs Sp. Land Acquisition Officer, Poona, reported in 1988(0) AIJEL- SC 5162 = (1988) 3 SCC 751 - relevant para - 1 to 15:
Infact, the aforesaid judgement very much applies to the facts of the present case. The said Judgement in its para - 4 (1 to 15), has laid down the principles for determining genuine sale price of a land, which a willing purchaser is prepared to pay to a Page 64 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined vendor, who is willing to sell at a reasonable price and that all such principles have been totally lost sight of by the Ld. Reference Court in the present case.
18. State of Gujarat, Through Sp. Land Acquisition Officer vs. Amaji Mohanji Thakore, reported in 2010(0) AIJEL - HC - 223782 = 2010(4) GLR 3589 - relevant para - 25 & 28:
In the aforesaid case, this Court had dealt with a case wherein, the market price of the nearby comparable piece of government land determined as per the provisions of the Act (and not as per the Government Circular dated 23.09.2002) in immediate past for allotting the same to an organization, was sought to be made applicable to the land under acquisition, located in the very village. This was opposed on behalf of the State Government on the ground that the market price determined by the Valuation Committee for allotting the government land, being on a higher side, cannot be relied upon by the Trial Court.
This Court rejected the said argument on the ground that such a dual stand on the part of the State Government is discriminatory and arbitrary, because the State Government cannot contend that if the State Government is to allot the land to any citizen or a body, higher price shall be fixed as the market price, whereas if the State Government is to acquire Page 65 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the land belonging to any citizen or any organization it shall pay less price.
In view of the above, the said judgment cannot be pressed in service at the behest of the Respondents - Claimants, more particularly for the following two reasons:
(a) In the above referred Judgement, District Valuation Committee had determined the market price of the comparable pieces of land for the purpose of sale (and not for the purpose of lease) at Rs. 65/- per sq.mt. vide order dated 21.09.1998 (pl. see para - 14 of the said Judgment) in favour of M/s Anarde Foundation and at Rs.160 per sq.mt vide order dated 16.10.1998 in favour of M/s Umiya Kadva Patidar Trust, which were sought to be made applicable to the land under acquisition vide Section- 4 notification dated 03.07.2004 for the purpose of 'Sujlam Suflam Spreading Canal'.
Whereas, in the present case, valuation of a piece of land bearing City Survey Nos. 12 & 13, admeasuring 6125.64 sq.mtrs. by the District Valuation Committee was determined for the purpose of granting the same on lease basis.
(b) In the aforesaid Judgment, District Valuation Page 66 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Committee had determined the genuine sale price in the year 1998 in the absence of a Government Circular dated 23.09.2002.
Whereas, in the present case the valuation of land bearing City Survey Nos. 12 & 13, admeasuring 6125.64 sq.mtrs of Vadodara City, was determined by the District valuation Committee by relying upon the aforesaid Circular, which is not applicable to the cases of land acquisition, but applicable to the lands to be granted on lease basis.
19. Sp. Land Acquisition Officer vs. Korigowda, reported in (2010) 5 SCC 708 - relevant para - 82:
The aforesaid judgment (more particularly paras
- 71,82 & 83) helps the Appellant - State rather than the Respondents - Claimants. In para 82, of the said judgment, it has been categorically observed as under:
"82 ... ... ... Comparable sales methods of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land which a willing purchase would pay for the acquired land if it has been sold in open market at the time of issue of notification under Section 4 of the Act. In Kantaben Manibhai Amin vs. Land Acquisition Officer, this Court also stated that latest sale instance clause to the date of Page 67 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined notification for acquisition of the land should be taken into consideration."
(Emphasis supplied) In the present case, as discussed in the foregoing paras of these written submissions, in both the documentary evidences relied upon by the Respondents - Claimants in terms of Exhibits 146 and 147, the past incidents were not of sale, but of lease, and over and above that, none of the said leases have ever been fructified.
20. Haren J. Doshi vs. Pradaprai Gaurishankar Trivedi, reported in 2018 (0) AIJEL - HC 239236 - relevant paras - 9 to 12:
The aforesaid judgement of this Hon'ble Court does not apply to the facts of the present case, since what was considered in para - 9 of the said case was the applicability of the clause (aa) of Order 41 Rule 27 of CPC, while keeping in mind the fact that in the said judgement, the applicant attributed subsequent knowledge of the documents produced by way additional evidence on the basis that the applicant got the information about the said documents from his lawyer, since the said documents were part of the files lying in his office (i.e. lawyer's office).
Apart from what is mentioned above, this Hon'ble Court had reached a conclusion in para - 12 of the aforesaid judgment that the documents Page 68 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined produced by way of additional evidence in the said case, were not germane to the issue and not necessary for pronouncing the Judgment.
In the present case, all the 15 additional documents sought to be produced by the Appellant - State are germane to the issue and necessary for pronouncing the judgment.
21. Sirajudheen vs. Zeenath, reported in 2023 (0) AIJEL - SC 70437 - relevant para - 9 & 14.
The aforesaid judgement of the Hon'ble Supreme Court is not applicable to the present case since, the concerned Hon'ble High Court in that case, had remanded the suit to the Trial Court, without coming to the decision that the findings recorded by the Trial Court were unsustainable and unjustified.
Whereas, the facts of the present case are totally different from those obtaining in the aforesaid judgement. In the present case, only evidence on the basis of the whole impugned Judgement and Award of the Ld. Reference Court proceeds, is Exh. 147, which is, as discussed hereinabove, not an evidence worth considering and on the other hand, there is ample evidence on record as well as additional evidence sought to be produced on record by the Appellant State, to establish that the whole matter is either required to be decided afresh by this Hon'ble Page 69 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Court or alternatively by the Ld. Reference Court on remand as per the provisions of Order 41 Rule 23-A of Civil Procedure Code.
Whereas as regards the admissibility of additional evidence, the Hon'ble Supreme Court in para-8 of the aforesaid Judgment, has observed as under:
"8. As observed and held by this Court in A. Andiswamy Chettiar v. A. Subburaj Chettiar [(2015) 17 SCC 713], the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."
(Emphasis supplied) Thus, this part of the aforesaid Judgment, in fact, favours the Appellant - State, more particularly in the matter of admissibility of its additional evidence.
XV. Re: Conclusion:
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1. In light of the aforesaid discussion, it is very clear that the impugned common Judgment and Award of the Ld. Reference Court suffers from multiple vices as demonstrated in the foregoing paragraphs of the Written Submissions, whereupon the findings recorded therein, are unsustainable and unjustified and consequently, the same deserve to be modified, failing which, quashed and set aside.
Additional evidence sought to be produced by the Appellant-State is not only germane and relevant to the controversy in question, but the same would definitely enable this Hon'ble Court to pronounce the judgment and that apart, the same deserves to be taken into consideration for a substantial clause.
2. In view of the above, this Hon'ble Court may be pleased to allow the Civil Application Nos.2 and 3 of 2023 filed by the Appellant - State in its F.A.No.11 of 2023, and such other Civil Applications filed in F.A.Nos.21 and 22 of 2023, seeking leave of this Hon'ble Court to permit the production of additional evidence and after considering the same, be further pleased to allow the captioned appeals, while modifying the said impugned Judgment and Award of the Ld. Reference Court by, inter-alia, holding that the correct rate of the subject land should be Rs.6,100/- per sq.mtr., arrived at on the basis of past sale instance of 25.01.2005 of Rs.10,038.80 per Page 71 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined sq.mtr., instead of Rs.26,048/- per sq.mtr. arrived at by the Ld. Reference Court and the final award amount should be to the tune of Rs.198,29,43,589.00 as per the "Statement showing fair valuation of the subject land", submitted on 12.10.2023 on behalf of the Appellant State during the course of hearing , instead of the final awarded sum of Rs.1872,41,64,438.73 as on 17.02.2023. The statement reads as under:
3. Alternatively, this Court may be pleased to quash and set aside the said impugned Judgment and Award of the Reference Court and to remand the matter back to the Reference Court, for reconsideration of the entire controversy afresh, within a particular time-limit, while permitting the Appellant - State to produce the additional documents which are sought to be produced before this Hon'ble Court along with its Civil Applications referred to above, before the Reference Court.
4. This Court may be pleased to reject the cross- objections filed by the Respondents - Claimants, seeking the enhancement in the rate of market price of the subject land from Rs.26,048/- per sq.mtr. to Rs.65,000/- per sq.mtr., in light of what is discussed hereinabove.
6. Mr. Mihir Thakore, learned Senior Advocate appears Page 72 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined with Mr. Tarak Damani, learned advocate for the defendant no.5 in the First Appeal and in the concerned cross-objections and Mr. Prakash Jani, learned Senior Advocate appears with Mr. Shivang P. Jani for some of the respondents in the First Appeal and in the Cross-objections. Learned Senior Counsels too have filed an extensive paperbook of written submissions.
The submissions are reproduced as under:
The Appellants have challenged the impugned judgment and order passed by the Ld. Reference Court mainly on two counts/grounds:
I. That the Reference Court has wrongly awarded interest @ 15% per annum from the date of possession i.e. 29.11.1991 till Section 4 notification, on the ground that possession had been with the Respondents and the law does not permit granting of such interest.
II. That the compensation granted of Rs.
26,048/- is very high and not as per the prevailing market value.Page 73 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
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1. ISSUE OF INTEREST FROM THE DATE OF TAKING OVER POSSESSION TILL NOTIFICATION:
a. Firstly, what the learned Reference Court has granted is not interest but the rent / damages/ compensation / mesne profit to the Claimants in respect of possession of the subject matter of land taken from 29.11.1991 till the notification under Section 4 of the Act, 1894 issued by the State Government dated 29.02.2007.
b. As far as granting of interest is concerned, under the Act the same is provided under Sections 23(1)(a), 28 and 34 . The rent / compensation granted by the Ld. Reference Court from the date physical possession is certainly with the State is not granted under Page 74 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Section 23 or 28 or 34 of the Act, which would be evident from the facts and law discussed below as well as in the impugned judgement and order.
c. The Claimants state that the Ld. Reference Court has found that the acquiring body was in possession of the entire parcel of land from 29.11.1991. On 29.11.1991, Gujarat Revenue Tribunal in a proceeding under Section 37 of the Gujarat Land Revenue Code, 1879 which provision is in relation to procedure for establishing ownership of a private party. In the said proceedings, on 29.11.1991, Gujarat Revenue Tribunal has held that the Claimants are the owners of the land and they are in legal possession of land. However, even as per the admission of acquiring body and its officers and other contemporaneous records, the Claimants have established that the acquiring body was in actual/physical possession of land from 29.11.1991 and prior thereto.
Page 75 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined d. For the purpose of establishing the fact, that all throughout, at least from the year 1960, the physical possession has been with the Appellants, the following documents in the Paper Book clearly show and establish the same:
Sr. Particulars Page
Relevant Description of
No Nos.
Pages / the Document
. inParas of
Paper the
Book
Documen
t
1. Order dated 365 to @ 368 The said paras
07.04.1980 373 (last clearly show
passed by Exh. para), @ that Fatehsinh
the learned 132 369 last 2 Regiment had
Deputy lines of been in
Collector, para 1, @ Physical
Vadodara. 370 Para Possession of
4, @ 371 the subject
Land.
2. Order dated 374 to @ 379 Survey no. 371
14.05.1983 382 Para 10, & 372 were
passed by Exh. @ 380 part of the
the District 133 final order acquisition
Collector, carried out for
Vadodara. Fatehsinh
Regiment and
the State is the
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owner of the
said Land.
3. Panchnama 383 to @ 385, Clearly shows
dated 395 387, 388, that the
06.09.1992 Exh. 391, 392, Physical
carried out 134 394 (Note Possession of
in Civil (Typed on the the subject
Appeal No. copy top) Land is with
194 of 1992. given SRP and also
during shows the
hearin different
g) activities like
Parade ground,
Hockey ground,
Arms and
ammunition
storage and
other purposes
for which the
subject Land
was being used
by the State.
4. Special Civil 20 to Paras 1, The State in its
Suit No. 776 28 2(b), 2, 8, pleading,
of 1992 filed 9, 11, 12 admits that
by the State and the Physical
Government prayers @ Possession of
page 27 the subject
para 19(a) Land is with
& (b) SRP and also
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shows the
different
activities like
Parade ground,
Hockey ground,
Arms and
ammunition
storage and
other purposes
for which the
subject Land
was being used
by the State.
5. Deposition 407 to Paras 2, 3, The deponent
dated 419 4, 5, 6, 7, in the Suit
15.01.1994 Exh. 9 admits that the
of 136 Physical
Commandan (Typed Possession of
t Mr. Malhar copy the subject
Rao in given Land has been
Special Civil during with the State
Suit No. hearin for last many
776 of 1992 g) years and also
mentions with
regard to
different
activities being
carried out by
the State on
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the said Land.
6. Letter dated 567 to Para 2 @ By the said
22.05.2002 569 567 Letter, it is
of AGP, HC Exh. evident that
to Secretary 180 the value of the
Legal subject Land is
Department more than Rs.
200 crores and
Physical
Possession is
with the State.
7. Letter dated 524 to Para 2 @ By the said
28.05.2002 525 524 Letter, it is
by SLR to evident that
Collector. the value of the
subject Land is
more than Rs.
200 crores and
Physical
Possession is
with the State.
8. SLP No. 570 to Ground By the said
16273 - 611 5(A) @ Letter, it is
16275 of Exh. page 575, evident that
2002 dated 181 5(C) & the value of the
08.08.2002 5(D) @ subject Land is
page 576, more than Rs.
Para 3 @ 200 crores and
page 595 Physical
Possession is
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with the State.
9. Letter dated 617 to Para 1, 3, By the said
18.09.2006 621 4, 6, 8, 9 Letter, the
by Senapati Senapati
to Collector requests the
Collector to
invoke urgency
clause under
the Act and
legally acquire
the said Land
and ensure
that the
physical
possession of
the State is not
disturbed.
10. Letter dated 616 By the said
25.09.2006 Letter, the
by Senapati Senapati
to Learned requests the
Collector Collector to
invoke urgency
clause under
the Act and
legally acquire
the said Land.
11. Letter dated 615 By the said
25.09.2006 Letter, the
by Senapati Senapati
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to Learned requests the
Collector Collector to
invoke urgency
clause under
the Act and
legally acquire
the said Land.
12. Award dated 96 to @ 103 The subject
11.12.2008 111 Second land is a N/A
Exh. last para Land and is
131 onwards being utilised
for non-
agriculture
purpose by the
acquiring body
for last any
years.
It is submitted that from the aforesaid
documentary evidence which are of the record of the acquiring body and the state government, it is clearly established that the acquiring body was in possession of the land atleast since prior to 29.11.1991. Admittedly, the subject land was used as parade ground for SRP, hockey ground, basketball ground, shooting range, helipad for landing of Page 81 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Dignitaries by helicopter and also arms and ammunitions were being stored in the said land and thereby no outsider was even allowed to enter without permission and having security check which is clear and evident from the above documents.
e. As far as the ownership of the land is concerned, admittedly, Late Mr. Mahendra Desai had been litigating from the year 1960 and it is only when the order dated 29.11.1991 was passed by the Learned GRT, the legal ownership was held to be that of Late Mr. Mahendra Desai and his family. The following are the documents which establishes that the legal ownership and legal possession was of Late Mr. Mahendra Desai and his Family:
Sr. Particulars Page Relevant
No Nos. Pages / Paras
. in of the
Paper Document
Book
1. Order dated 1 to 19 @ para 13, 16,
29.11.1991 17, 18, 25
passed by learned [@ Page 18
(Para 25) it
GRT
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has been held
that from
documentary
evidence,
possession is
that of Late
Mahendra Desai
and his family]
2. Judgment and 29 - @ Page 45
decree dated 75 (Issue No. 3), @
21.03.1994 below Page 50 bottom,
Special Civil Suit Page 51, Page
No. 776 of 1992 63 bottom till
Page 65
3. Order dated 76 - @ Page 88
07.05.2002 88
passed by this
Hon'ble Court
below First Appeal
No. 969 of 1994
4. Order dated 89 - @ Page 95 (Top
10.04.2006 95 para)
passed by the
Hon'ble Supreme
Court
f. From the above documents as shown above in
para e, it is clearly established that the legal ownership was held to be that of Late Mahendra Desai and his family and thereby, even the legal possession would belong to Page 83 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined them. But as far as physical possession is concerned, from the documents shown in para d, it clearly establishes that the physical possession, at least from the year 1960, has been with the Appellants. Furthermore, the Appellant-State in all its pleadings, be it Civil Suit, First Appeal or SLP, everywhere they have stated that the physical possession of the subject Land is with the State Government and thereby, the Respondents herein seek to rely on Section 58 of the Indian Evidence Act, 1872, which states that the facts admitted need not be proved. As the ownership of Late Mahendra Desai has been established by the order of Ld. GRT dated 29.11.1991, and on the other hand, physical possession of the State is established from catena of documents as referred to in para d above, at least from 1960 and thereby, the Ld. Reference Court, while passing the impugned order has granted rent / damages/ mesne profit, from 29.11.1991.
g. Law in respect of physical possession and Page 84 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined legal possession:
i. Para 1211 and 1212 Volume 35 Halsbury's Laws of England.
The same distinguishes between de-
facto possession and legal possession - A person may have legal possession but that does not mean he has de-facto possession/physical possession.
ii. 1953 (1) SCC 561 in the matter between Seksaria Cotton Mills LTD and Others V/S State of Bombay.
Relevant paras 18 to 20.
iii. 2010 (3) SCC 385 in the matter between Sadashiv Shyama Sawant (Dead) V/S Anita Anant Sawant.
Relevant paras 1, 18 to 23 .
h. Law in respect of rent / damages to be paid from the date of physical possession till Section 4 notification under the Act:
i. 2004 (4) SCC 79 R. L. Jain V/S
Dehli Development Authority.
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Relevant Para 18.
ii. 2007 (9) SCC 650 Madishetti Bala
Ramul V/S Land Acquisition Officer.
Relevant paras 11 to 20.
iii. 2014 (13) SCC 613 Tahera Khotoon V/S Regional Division Officer. Relevant Paras 9 to 15.
Here the Hon'ble Supreme Court directed State Government to pay rent / damages @ rate of 15% from 01.01.1938 till date of issuance of notification i.e. 10.01.1996.
iv. 2016 (13) SCC 412 Balwan Singh V/S Land Acquisition Collector.
Relevant paras 2 to 4.
v. Civil Appeal Nos. 834-835 of
2017 (arising out of SLP (C) Nos.
32680-32681 of 2015) dated
23.01.2017 in the matter between Baldevji Sakraji Thakor V/S Group General Manager, ONGC. Relevant paras 6 and 7.
Page 86 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined vi. First Appeal No. 1213 of 2016 , Gujarat High Court dated 20.08.2018 in the matter Heirs of Deceased Velabhai Valabhai V/S Second Additional Land Acquisition Officer. Relevant paras 3.7 to 6.
vii. First Appeal No. 5828 of 2019 , Gujarat High Court dated 17.01.2020 in the matter Heirs of Deceased Nagjibhai Valabhai V/S Second Additional Land Acquisition Officer. Relevant paras 2 to 7.
i. The Reference Court, while passing the impugned order, has granted rent / damages to the Respondents herein @ rate of 15% from the date of physical possession which is considered to be the date on which the legal ownership of Late Mahendra Desai and his Family had been declared i.e. 29.11.1991. All the judgments referred to in above para 'h', clearly lays down the ratio that the land owner is entitled to get rent or damages for use and Page 87 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined occupation for the period the Government retains the possession of the property. Taking into consideration the said aspect, from the documents relied upon in above Para 'd' clearly establish that the physical possession has been with the State Government even prior to 1991 but then also the Ld. Reference Court has only granted the rent / damages @ rate of 15% only from 29.11.1991.
j. The State Government has relied upon the judgments in the case of Budh Singh & Ors.
(supra), R.L. Jain (supra) and Mahender Singh (supra). These judgments only lay down the proposition that under Section 23, 28 & 34 of the Act, no interest can be awarded prior to date of notification under Section 4.
This principle is self-evident from the said provisions themselves. These judgments do not lay down that no damages/rent/mesne profit can be granted from date of taking possession to the date of section 4 notification. The 3 judge bench judgment referred to in para h(i) Page 88 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined as well as relied upon by the State Government above clearly lays down the principle that damages can be awarded for the period prior to Section 4 notification (para 18 of 2004 (4) SCC 79). In view of this, the judgments relied upon by the State has no application to the issues arising herein.
k. It is submitted that in the facts of the present case, the Reference Court has granted the rental amount at the rate of 15% on the total amount that is consistent with the Supreme Court judgements. In view of this, it is submitted that the documentary record which is in custody of government and acquiring body conclusively establishes that the Appellants-acquiring body were in possession of the land prior to Section 4 notification and therefore, the Reference Court has rightly awarded amount by way of rent/damages to the Claimants following the judgements of Hon'ble Supreme Court.
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2. ISSUE WITH REGARD TO MARKET VALUE OF THE SUBJECT LAND:
a. The Appellants of the First Appeal had not produced any documentary evidence in opposition to the claims made by the Claimants in the reference proceedings. It is submitted that the Appellants have not disputed the existence of the documents produced by the Claimants nor the contents of the documents were disputed by the Appellants before the Reference Court.
b. Before the Reference Court, the Claimants had produced as many as 29 documents in support of their case. However, for the purpose of determining the market value of the land under acquisition at the date of publication of the notification under section 4(1) of the Land Acquisition Act, 1894, the Respondents/Claimant had relied on the following four documents :
Sr. Particulars Rate Page No.
No. in Rs.
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1. Land Price committee 28,000 122 to 128
Report dated 17.04.2000 /- Exh. 146
in respect of nearby (Relevant
Survey nos. 553 and Sr. No. 17
554 admeasuring 21414 @ Page
square meters and 4038 126)
square meters given on
lease to Welcome Hotel
for 30 years.
2. Minutes of meeting of 40,000 129 to 146
District Land Valuation /- Exh. 147
Committee dated (Relevant
13.09.2006 in respect of Sr. No. 20
market value of Land of @ Page
City Survey nos. 12 and 143)
13 admeasuring about
6125.64 square meters
given on lease to VMC
for parking for 30 years.
3. Lease deed for a period 40,200 146 to 167
of 99 years dated /- Exh. 148
24.05.2007 executed by
VMC for nearby Plot No.
166 admeasuring 2200
square meters
4. Lease deed for a period 45,500 168 to 188
of 99 years dated /- Exh. 149
24.05.2007 executed by
VMC for nearby Plot No.
549/1 admeasuring 5556
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square meters
Note: The Appellant/State has produced circular dated 23.09.2002 before this Hon'ble High Court (Page-114 of Paperbook) for the 1 s t time. In the said circular, the Chief Town Planner of State has stated that land area above 1500 sq. meter is to be considered as big plot.
c. Admittedly, the land acquisition officer while passing the award dated 11.12.2008 (at Page
96), in the said award at page 104, has stated that looking at the documents provided and looking at the potentiality of the land, the market value of the land is approximately Rs.
20,790/-, and even according to his own personal opinion, the market value of the land is Rs. 10,000/-, yet while passing the impugned award, the market value has been considered as only Rs. 1914/-, solely on the basis of the opinion given by the District Land Valuation Committee.
d. It is submitted that in the present case, date of issuance of Section 4 notification is Page 92 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 09.02.2007. It is submitted tha t document Exh.
146 dated 17.04.2000 (@ 122, relevant page
126) shows that the District Valuation Committee of Vadodara had fixed the valuation of the land in the same area at Rs. 28,000/-
per sq. meter. It is sub mitted that if the valuation of the land in the same area was Rs.
28,000/- per sq. meter as per the report of the District Valuation Committee consisting of government officers, the valuation of the present land on 9th February, 2007 will be on a higher side in as much as nearly after 6 years 10 months, the present lands are acquired. It is submitted that if flat rate increase of 15% is considered, then, Rs.
28,000/- value of land would be worth at least Rs. 56,000/-. It is submitted that having regard to the sale instance of the year 2000 i.e. Exh.
146, the value of the land in the present case on 09.02.2007 will be at least Rs. 56,000/- as against the same the Ld. Reference Court has awarded Rs. 26,048/- per sq. meter.
Page 93 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Admittedly as per the settled position of law, in an urban area 10% to 15% annual rise in the valuation of land is the norm.
e. It is submitted that in the same area, Vadodara Municipal Corporation had given the open parcel of land by way of lease of 99 years with other stipulations. It is submitted that lease deed entered into between Vadodara Municipal Corporation and private party in public auction is shown to be Rs. 40,200/- in one case (Exh. 148 @ page 147 Paperbook). It is submitted that another lease agreement dated 24.05.2007 (Document Exh. 149 @ page 168 Paperbook) shows that Vadodara Municipal Corporation had given the land by way of lease of 99 years for Rs. 45,500/- per sq. meter. It is submitted that bot h the aforesaid lands were to be developed and those lands did not have the same advantage of location as the present land under acquisition. Additionally, lease is not the transfer of title and thereby, a lessee does not get the same amount of right which Page 94 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined an owner of the land would have. An owner of the land is in a better position than the one who has the lease hold right. In the present case, on 09.02.2007, which is the date of notification under section 4 and which date and event is quite proximate to the above two lease agreements dated 24.05.2007 shows that land was given at Rs. 40,200/- and Rs. 45,500/-
per sq. meter. In view of the aforesaid, by no stretch of imagination, it can be contended by the Appellant that amount of Rs. 26,048/- as awarded to the claimant by Reference Court is on a higher side. It is submitted that the subject matter of the land which is acquired is already fully developed and on the national highway. It has the best of the location in the city of Vadodara. Across the road, there is a palace of Maharaja and museum and all important locations of city of Vadodara are in proximate connection with the present land.
Railway station of Vadodara and bus stand of Vadodara and main lands of Vadodara are Page 95 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined hardly at a distance of 500 meters.
Additionally, the entire land is fully developed and no amount of expenditure in terms of putting any infrastructural cost is required.
Since the entire acquired land has been in possession of the state reserve police for decades and thereby no amount of any deduction of any area of land for creating roads or other infrastructure is required. It is submitted that for the foregoing reasons, having regard to the documentary evidence at Exh. 146, 147, 148 and 149, it is submitted that amount awarded by Reference Court determining the value of the land at Rs.
26,048/- is on a lower side.
f. The documents provided below Exhibits 147, 148 and 149 respectively (at Page Nos. 118, 147 and 168 respectively), also clearly evidences the fact that the market value of those nearby lands were assessed to be Rs.
43,000/-, Rs. 40,200/- and Rs. 45,500/-
respectively, which the Ld. Reference Court Page 96 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined has failed to consider while passing the impugned order. The market value of the subject land is far higher than the compensation granted by the Ld. Reference Court and admittedly the Respondents herein had sought for Rs. 65,000/- per square meters as compensation and as against that only Rs.
26,048/- has been granted and thereby the cross objections hav e also been filed for Your Lordships consideration for the purpose of seeking of enhancement in compensation.
g. It is submitted that the Ld. Reference Court has relied upon the document Exh. 147 dated 13.09.2006. The same pertains to grant of land by State Government for a period of 30 years to Vadodara Municipal Corporation for planning of traffic. It is stated that the above land and the land under acquisition are in one locality/one Kasba. It is submitted that Ld. Reference Court deducted an amount at the rate of 25% of the wide frontage of the area.
The Reference Court further deducted amount Page 97 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined at the rate of 25% of advantage of location and arrived at amount of Rs. 25,004.98/- and thereafter, gave increase of 4.17 % for five months and thereby, arrived at the figure of Rs. 26,048 per sq. meter.
h. It is submitted that it is the case of the Appellant that method of arriving at the valuation of the land as per the government circular dated 23.09.2009 will not be applicable in the case where the State Government acquires land of private parties under the Land Acquisition Act, 1894. It is the case of the Appellant that the effect of circular dated 23.09.2009 is that when the State Government gives its land by way of sell or lease and thereby the formula as per circular dated 23.09.2009 will not be applicable when the State Government acquires the land of citizen under the Land Acquisition Act, 1894.
It is submitted that the aforesaid stand of the State Government is held to be not acceptable by the Division Bench of this Hon'ble Court in Page 98 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined a judgment reported in 2010 (4) GLR 3589, relevant paragraphs are 21, 25 & 28 .
i. It is submitted that in view of the principles as laid down by the Division Bench of Gujarat High Court in the above judgment, it is not open on the part of the State Government and its officers to contend that for the purpose of giving the land to the citizen owned by the State Government, formula and procedure and principle as laid down in the circular dated 23.09.2009 would apply and while taking the land of the citizen under the Compulsory Acquisition of Land Acquisition, the valuation method as prescribed by the State Government in its circular dated 23.09.2009 will not apply.
It is submitted that in the instant case, the Ld. Reference Court has relied upon the price fixed for the lease to be entered into between State of Gujarat and Vadodara Municipal Corporation of the land which is in the same city and in the same locality. It is submitted that while granting the land, to Vadodara Page 99 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Municipal Corporation for a period of 30 years, valuation committee had followed the principle of circular 23.09.2009. In view of the foregoing reasons, it is submitted that award of the Ld. Reference Court determining the price of the subject matter of the land at Rs.
26,048/- on the basis of a document which is entered into between State of Gujarat and Vadodara Municipal Corporation cannot be faltered in any manner.
j. As far as the issue with regard to the market value of land is concerned and as to how the same is required to be computed / calculated, in respect of the same the law is very well settled and enumerated by the Hon'ble Supreme Court in catena of decisions. The Respondents herein most respectfully wishes to rely on the following decisions of the Hon'ble Supreme Court:
i. 2008 (14) SCC 745 in the matter of General Manager, ONGC V/S Rameshbhai Jivanbhai Patel & Others. The relevant Page 100 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined paragraphs are 10 to 17.
ii. 2016 (4) SCC 554 in the matter of
Ashokkumar & Others V/S State of
Haryana. The relevant paragraphs are 6 to 12.
iii. 2015 (2) SCC 262 in the matter of Major General Kapil Mehra & Others V/S Union Of India & Others. The relevant paragraphs are 10 to 40.
k. The Appellants while arguing on the issue of market value has argued that the market value of a small land cannot be compared as to that of a larger parcel of land. Admittedly, the documents relied upon by the Respondents for the purpose of determining the market value i.e. the documents with regard to Exhibit 147 the land size is 6125.64 square meters, Exhibit 146 the land size is 21414 square meters and 4038 square meters, Exhibit 148 land size is 2200 square meters whereas Exhibit 149 the land size is 5556 square meters (as per Page 101 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined circular dated 23.09.2002, any land above 1500 sq meters is a l arge land). The documents that the Respondents had relied upon for the purpose of determining the market value, if the average of the said rate is also considered the same would be almost to the tune of Rs. 42,000/-. Furthermore, even if the argument of the Appellants is considered that the land in question is much larger than the lands which are taken for comparison, in that scenario the Hon'ble Supreme Court in the case of Sajan V/S State of Maharashtra and Others reported in 2020 (14) SCC 139 (relevant para nos. 13 to 16) has held that the deduction in large portion of land should be done taking into consideration the deduction towards development and the deduction has to be carried out on the basis of the purpose of acquisition for which the land is being acquired. Admittedly, in the present case the subject land has been acquired for the purpose of parade ground and the Page 102 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined development had already been undertaken long back and thereby there is no reason for any deductions. Even if it is assumed that any deduction is required than also for the purpose of development of ground and other activities for the police, wherein the maximum deduction that would be required would be maximum of 15% to 20%. And thereby even if the said deduction is done from the average market value available, the compensation awarded by the learned Reference Court is less compared to the available market value.
l. The Appellants had also contended that the leasehold price or auction price should not be considered when the sale price is available.
Admittedly, no sale price of any such comparable land or any such proper land is available which can be compared. The land acquisition officer while passing the award had relied on one such sale instance, wherein he himself in his own opinion was not satisfied with the land taken in comparison, whereby he Page 103 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined had awarded Rs. 1914/-. Wherein according to Jantri value the rate was Rs. 6300/-, according to the land acquisition officer the rate according to the document supported was more than Rs. 20,000/- whereas as per the opinion of the land acquisition officer himself the market value of the land was at least Rs.
10,000/-. From the documents available on record it is clear and evident that there was no comparable sale which was available and thereby the four documents in respect of the long term leasehold rights were relied upon.
The Hon'ble Supreme Court in the case of Kapil Mehra V/S Union of India reported in 2015 (2) SCC 262 in paragraphs 21 to 24 has discussed the issue with regard to freehold vis-à-vis leasehold market value, in paragraphs 25 to 28 they have discussed the issue with regard to deduction towards competitive bidding. If the same ration is applied to this case then 20% has to be added to the market value of the leasehold land and Page 104 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 20% has to be deducted towards competitive bidding from the available market value of the leasehold land. In view thereof, adding and deducting would make the market value to be the same. The ratio laid done by the Hon'ble Supreme Court in matter of Kapil Mehra is squarely and directly applicable in the facts of the present case.
m. As far as the issue with regard to the grant of interest under Section 23, 28 & 34 are concerned, the same is very well settled by the five Judges bench of the Hon'ble Supreme Court in the cases of Sunder V/s. Union of India reported in 2001 (7) SCC 211 & in the mater of Gurpreet Singh V/s. Union of India reported in 2006 (8) SCC 457. The said decisions have further been relied upon in the case of Mehrawal Khewalji Trust & Ors. V/s.
State of Punjab reported in 2012 (5) SCC
432. n. The above stated facts and the settled position of law clearly enumerates that the Ld. Page 105 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Reference Court has awarded less compensation than the available market value and the Reference Court has wrongly not considered the documents below Exhibits 146, 148 & 149.
3. ISSUE WITH REGARD TO PRODUCTION OF ADDITIONAL EVIDENCE (ORDER 41 RULE 27, CPC) a. It is submitted that the appellants had filed the First Appeal before this Hon'ble Court against the judgment and award of Reference Court dated 05.03.2022. It is submitted that the First Appeals filed by the Appellants were not filed within the period of limitation. It is submitted that the Appellants did not file any application for placing additional evidence on record at the time of filing of the First Appeals. It is submitted that later on, the Appellants moved an application for placing certain Page 106 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined documents by way of additional evidence.
The Appellants had produced the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 to place the additional evidence on record. It is submitted that application to produce additional evidence in the first appeal may not be granted by this Hon'ble Court as the documents sought to be produced by the Appellants were within the exclusive custody of the Appellants. It is further submitted that the documents sought to be produced by way of additional evidence were in the knowledge of the Appellants and it is not the case of the Appellants that they could not find out those documents during the pendency of Reference Case. It is submitted that application for production of additional evidence may not be granted by this Hon'ble Court as the application filed by the Appellants do not satisfy any of the criteria established for grant of the application.
Page 107 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined b. The Appellants after filing of the present Appeal have filed two applications under the provisions of Order 41 Rule 27 of the Code of Civil Procedure, 1908 seeking to bring on record additional evidence. The provision under which the said applications has been filed is Order 41 Rule 27(b), which states that "(b) the Appellate Court requires any document to be produce or any witness to be examine to enable it to pronounce judgment, or for any other substantial cause...." .
c. Before dealing with the documents sought to be produced by the Appellants the law as settled by the Hon'ble Supreme Court in catena of decisions on the said issue is required to be considered so that the same can be applied while considering the documents. The decisions that the Respondents herein seeks to rely upon are:
i. 2012 (8) SCC 148 in the matter of Union of India V/S Ibrahim Uddin and Another. The relevant Page 108 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined paragraphs are 36 to 52 .
ii. 2022 (7) SCC 247 in the matter of
Sanjaykumar Singh V/S State of
Jharkhand. The relevant
paragraphs are 7 and 8.
d. This is not for the first time that the
Appellants have been seeking to produce additional documents at such a stage. Even when First Appeal No. 969 of 1994 was pending before this Hon'ble Court for consideration, in the same also the State had moved an application which was rejected.
The same was also challenged along with the final order before the Hon'ble Supreme Court. The Hon'ble Supreme Court while passing the final Order dated 10.04.2006 at Page 90 (PB) last paragraph and page 91 first two paragraphs has dealt with the same and has found no error in the approach of the Hon'ble High Court .
e. Without prejudice to the rights and contentions of the Respondents-Claimants Page 109 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined that the application for additional evidence is not liable to be granted, it is submitted by the Respondents that even after considering the application for placing additional evidence on record and even after granting the said application, the final conclusion as arrived at by the Reference Court in determining market value of the land is in no way going to be affected or changed in any manner for the grounds and reasons as set out hereinbelow. The Appellants have sought for production of the below mentioned documents as additional evidence:
Sr. Annex Particulars of Annex. Page No in no. in in Addl. PB PB Evid.
8 A-2 Government Resolution @ 112 -
bearing No. LAQ-1084- 113 525-GH dated 18.06.1986 9 A-3 Circular bearing No. 5114 @ 114 dated 23.09.2002 - 117 3 A-4 Order dated 21.03.1994 @ 29 - passed by the Civil Court 75 Page 110 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined in Special Civil Suit No. 776 of 1992. 15 A-5 Valuation report dated @ 189 30.03.2007 of the Town - 194 Planning Officer in respect of the land in question. 16 A-6 Minutes of meeting dated @ 195 09.04.2007 of DLPC - 196 determining the market value of the Land in question. 1 A-7 Order dated 29.11.1991 @ 1 - passed by the Gujarat 19 Revenue Tribunal in Appeal No. TEN.A.A 36/90. 10 A-8 Valuation report dated @ 118 - 07.09.2006 of the Town 121 planning Officer. 6 A-9 Section 4 notification in @ 95A respect of land in - 95B question. 17 A-10 Agreement of sale dated @ 197 20.05.1988 - 207F 18 A-11 Development agreement @ 208 dated 06.06.1992. - 217F 19 A-12 Agreement of sale dated @ 218 07.10.2000 - 235H 20 A-13 Agreement of sale dated @ 236 07.12.2019 - 243 21 A-14 Agreement of sale dated @ 244 Page 111 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 14.12.2019 - 250 22 A-15 Agreement of sale dated @ 251 14.12.2019 - 257 23 A-16 Agreement of sale dated @ 258 14.12.2019 - 263A
f. The Respondents-Claimants seeks to deal with the above-stated documents in seriatim hereunder:
i. The document produced by the Appellant at Page 112 of the Paperbook is Government Resolution dated 18.06.1986. It is submitted that Government Resolution dated 18.06.1986 is in no way relevant for the purpose of deciding the present controversy. The said Resolution is in relation to the rate of interest which is to be paid by the state government in relation to taking possession of the land for temporary purpose by way of rent and the interest to be paid thereon, wherein the possession is being taken by private arrangement/agreement/negotiation. It is Page 112 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined submitted that Government Resolution refers to the amendment in the Land Acquisition Act, 1894 which has come into effect from 24.09.1894. It is submitted that the State Government by the said Government Resolution has now fixed rate of interest on the land to be acquired by way of private negotiation at 9% from the date possession is taken. It is submitted that first paragraph of the said resolution clearly states that it is in relation to the acquisition of land by way of private negotiation. It is submitted that the aforesaid resolution has no application in any manner to the facts of the present case, which is taken over by invoking urgency clause.
ii. The Appellant has heavily relied upon the Circular dated 23.09.2002 issued by Chief Town Planner Gujarat at Gandhinagar. By relying upon the said circular and in particular, two lines of last Page 113 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined paragraphs, the Appellants would contend that guidelines and principles and formula for determining the market value of the land as laid down in the said circular will not apply with respect to the land which are to be acquired. It is submitted that the Appellants by referring to these last lines of last paragraphs of the circular would contend that principles governing determination of the market value of the land as referred to will not apply with respect to the land to be acquired under the Act, 1894. It is submitted that the aforesaid contention of the state government has been squarely dealt with and rejected by this Hon'ble Court in the judgment reported in 2010 (4) GLR 3589. The reference of which is made in earlier paragraphs. It is submitted that a State cannot have two standards of determination of valuation of land. It is submitted that while granting the land to Page 114 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the citizens by way of sale or lease, if the state government is to follow the principles and formula of determination of market value as laid down in the circular dated 23.09.2002, the very State cannot be permitted to contend that it will not apply and follow the same principles while taking the land of the citizens by way of compulsory acquisition under the Act, 1894. It is submitted that State and its authorities cannot have one standard to sell the land and another standard to purchase the land from the citizens. It is submitted that such approach on the part of the state government is deprecated by the Division Bench of this Hon'ble Court in the judgment reported in 2010 (4) GLR 3589. It is submitted that in view of the principle as laid down by the Hon'ble Division Bench, the last two lines of the circular dated 23.09.2002 which says that the formula as referred to in the circular Page 115 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined dated 23.09.2002 will not apply to the land acquisition proceedings will no longer survive. It is submitted that as a necessary corollary to this, the very same principles as are made applicable for determining the value of the land under the circular dated 23.09.2002 will apply to the lands which are acquired by the State Government under the provisions of the Land Acquisition Act, 1894.
iii. It is submitted that that the Appellants have placed on record the valuation report dated 07.09.2006 (@ Page 118 PB). It is submitted that Planning and Valuation Department Office at Vadodara had fixed the value of City Survey no.
12/13 in Vadodara city which is a land in proximity with the subject land. The State Government appointed valuation committee at Vadodara office had fixed the price of land at Rs. 43,000/- per sq. meter for giving it to Vadodara Municipal Page 116 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Corporation. Thus, the owner of the land which was state government agreed to part with the land by way of lease at Rs.
43,000/- to another local government body namely Vadodara Municipal Corporation for establishing traffic booth, even then, valuation was fixed at Rs. 43,000/-. It is submitted that the said valuation done by the government appointed officers who are members of valuation committee is accepted and acted upon and the said decision is neither changed nor set aside so far. It is submitted that when the said base is relied upon by the reference court to arrive at the market value of the land at Rs. 26,048/- , the Appellant-State government is contending that their own order of determining Rs. 43,000/-
valuation which acted upon and so far not changed is not to be relied upon on the ground that the principles and formula relied upon while determining the Page 117 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined valuation of the land is erroneous. It is submitted that such strange argument to the effect that the state government's own order is not right is being argued only to see that a citizen is denied the rightful claim to obtain compensation of deprivation of his property which should be consistent with market value. It is submitted that such submissions made by the appellant may not be accepted by this Hon'ble Court.
iv. The Appellants have placed on record the proceedings of the meeting of the valuation committee dated 30.03.2007 and its approval by the District Valuation Committee on 09.04.2007. These documents are at page 189 and 195 of the Paperbook. With respect to the aforesaid documents, it is submitted that special land acquisition officer addressed the letter to the town planner of Vadodara on 22.03.2007 seeking the valuation of the Page 118 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined land in question. It is stated that in view of the letter of Special Land Acquisition Officer dated 22.03.2007, the Town Planning Officer-Town Planner, Vadodara determined the price of the land at Rs.
2586/-. It is submitted that District Land Price Committee met on 09.04.2007 and after taking into consideration the valuation of Town Planner further reduced the valuation of the land in question and fixed the value of the land at Rs. 1914/-
per sq. meter. It is submitted that Land Acquisition Officer received this report and had made reference of this report of the District Valuation Committee in its draft of the award. It is stated that the draft of the award was sent to the approver. The state government while giving approval to the draft of Land Acquisition Officer had conveyed to the Land Acquisition Officer vide letter dated 28.07.2008 to the effect that Land Page 119 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Acquisition Officer should delete the reference of the valuation made by the land price committee and by the town planner and should state in its award that the decision regarding valuation of the land is of the Land Acquisition Officer. It is submitted that aforesaid details are discernible in the a ward of the Land Acquisition Officer dated 11.12.2008 (@ Page 96 of PB). These details are @ page
103. It is submitted that the aforesaid sequence of events clearly shows that what was told by t he state government to the Land Acquisition Officer not to disclose the proceedings of the District Valuation Committee of determining valuation of the land at Rs. 1914/- is now sought to be produced on record by way of additional evidence. It is submitted that Hon'ble Supreme Court in the judgment reported in 2010 (5) SCC 708 (relevant para 82) have held that when comparable Page 120 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined sale methods of valuation is available, the valuation prepared by the expert is not to be considered. It is submitted that in view of the above proposition of law as laid down by the Hon'ble Supreme Court, the valuation prepared by the Town Planner and further reduced by the District Valuation Committee has no evidentiary value in any manner. It is further submitted that the aforesaid details show that how in a casual manner, Land Acquisition Officer to whom important task of offering compensation is conferred which is to be determined on the basis of market value of the land. This case reflects that how in such carefree manner, the citizens' rights of determination of fair market value of the land are being determined.
V. It is submitted that in view of the aforesaid, the documents produced at Page 184 and 195 dated 30.02.2007 & Page 121 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 09.04.2007 have no evidentiary value in any manner.
vi. It is submitted that the appellants have placed on record, six private agreements entered into by the family members of the deceased who are the Claimants or the deceased. It is submitted that by these agreements, some of the family members have transferred their entitlements in favour of other persons by agreeing to accept particular amount of consideration.
It is submitted that these agreements by family members of decea sed are dated 28.05.1988, 06.06.1992, 07.10.2000, 07.12.2019 and 14.12.2019 and same are at Page Nos. 197, 208, 218, 236, 244, 251 and 258 of Paperbook from Sr. Nos. 17 to
23. It is submitted that out of these six family agreements, three agreements are prior to the year 2000, much before the judgment of Hon'ble High Court of Gujarat and Hon'ble Supreme Court of India. The Page 122 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined judgment of the Hon'ble Supreme Court finally rejected the assertion of the state government that state is the owner of the land came to be rejected on 10.04.2006. It is submitted that entitlement of the Claimants prior to 2006 was under the consideration before the Hon'ble High Court of Gujarat and thereafter, before the Hon'ble Supreme Court. With respect to the agreement in the year 2019 entered into between some family members, it is submitted that as held by the Hon'ble Supreme Court of India that for the purpose of determining the market value of the land which is acquired under the provisions of the Land Acquisition Act, 1894, relevant date for determining market price of the land is the date of the notification issued under section 4 of the Land Acquisition Act, 1894. It is stated that in the present case, Section 4 notification came to be issued on Page 123 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 09.02.2007 and therefore, market value for the purpose of awarding compensation to the Claimants has to be the transactions of a willing buyer and a willing seller on 09.02.2007 and/or around that time. It is submitted that for the foregoing reasons, no reliance can be placed upon the agreements produced by the Appellant which are from Sr. Nos. 17 to 23 as there is no proximate connection of any of the agreement to the date of section 4 notification. Furthermore the documents of the year 2019, clearly stipulates that as the litigations have been on-going for long and there seems no likely end to it soon and thereby the same was a distress sale and thereby also no reliance can be placed on the said documents.
g. Looking at the above documents, it is clear and evident that the Appellants had ample opportunity to produce all the above Page 124 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined documents before the Learned Reference Court barring last 4 agreements which otherwise are also not relevant. The Appellant deemed it fit and appropriate not to produce the same before the Ld. Reference Court but now with an oblique intention of getting the matter remanded back on the basis of the fact that these documents were not considered is wanting to produce additional documents at this belated stage.
h. Taking into consideration the contents of the above documents and taking into consideration the settled position of law as enumerated in the decisions relied upon, the general principle is that the Appellate Court should not travel outside the records of the Lower Court and in the exceptional circumstances if the Court is wanting to travel, the test which is required to be considered is as to whether or not the Appellate Court requires the said evidences Page 125 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined sought to be adduced, to enable it to pronounce judgment or for any other substantial cause. Admittedly, looking at all above documents as mentioned in para 6e.
and reasons given in para 6f. above, none of the said documents can be said to be positively falling within the test as required to be undertaken. The documents on record itself are sufficient for this Hon'ble court to pronounce the judgment without taking into consideration the additional documents sought to be produced by the Appellants and thereby the Civil applications filed by the Appellants seeking for production of additional evidence required to be dismissed with cost.
4. ISSUE WITH REGARD TO REMAND OF APPEALS TO THE LD. REFERENCE COURT:
a. The Appellant-State, during their arguments had stated that in view of the production of Additional Evidence, as the same were not Page 126 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined made available with the Reference Court while passing the impugned Judgment and Order and thereby, the Appeals are required to be remanded back to be decided afresh taking into consideration the additional evidence provided by the Appellant-State.
b. Firstly, in view of what is stated in para no.
6 hereinabove, the applications preferred by the Appellant-State for production of additional evidence, deserve to be dismissed.
If for any reason, it is assumed that Your Lordships are granting the applications preferred by the Appellant-State for production of Additional Evidence, in that case also, Your Lordships be pleased to consider the fact that the complete record is available for Your Lordships kind consideration, furthermore, the parties have dealt in detail with all those documents and have made submissions with regard to the same before Your Lordships and thereby, Your Lordships may consider those document Page 127 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined and pass the the final order and thereby also, this is not a case of remand.
c. As far as the documents produced in additional evidences are concerned, no further oral evidence is required to be led with regard to the said documents and thereby, either Your Lordships will consider those documents and interpret them or Your Lordships, taking into consideration the submission on the part of the Respondents will disallow the applications and ignore the said documents and thereby also, this is not a case which deserves to be remanded back for fresh consideration.
d. Your Lordships may also consider the plight on the part of the Respondents whereby, the Respondents, for more than last 6 decades, are running from pillar to post, firstly, to establish their ownership rights and thereafter, to receive compensation. As the government was claiming to be an owner of the subject Land and thereby, in the year Page 128 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 1960, the Respondents were constrained to file proceedings under Section 37 of the Bombay Land Revenue Code for being declared as owners, wherein the Respondents eventually succeeded in the year 1991 and the said order attained finality only in the year 2006, when the 1991 order was upheld by the Hon'ble Supreme Court. Thereafter, once the order was passed in favor of the Respondents by the Hon'ble Supreme Court, the Appellant-State by invoking urgency clause under the Act, in the year 2007 started acquisition proceedings wherein in the year 2008, an award for a meagre amount of Rs. 1914 per square meter was passed and ultimately, the impugned Order came to be passed in the year 2023. The Respondents from 2008 till 2023 have been waiting to get / receive rightful compensation.
e. There has been a long-standing dispute / litigation with respect to the said Land, Page 129 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined which the Appellant-State and the Respondents have been involved in, for more than last 6 decades and thereby also, it is neither in the interest of the State nor in the interest of the Respondents for the matter to be remanded back for fresh consideration.
f. In this regard, the Respondents herein, seek to rely upon a decision of Hon'ble Supreme Court in the matter of Sirajudheen v/s Zeenath reported in 2023 (0) AIJEL-SC 70437, wherein the Respondents herein seek to rely upon para nos. 9 and 11.2 of the same.
g. In view of the above, this is not a case which deserves to be remanded back.
5. CROSS-OBJECTIONS:
a. The Respondents have filed Cross Objections in these appeals under Order XLI Rule 22 of the Code of Civil Procedure, 1908. It is submitted that the Claimants had demanded an amount of Rs. 65,000/- per sq. meter Page 130 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined before the Reference Court. The Reference Court has awarded an amount of Rs. 26,048/-
to the Claimants. It is submitted that for the remaining amount of Rs. 38,952/-, the Claimants have filed Cross Objections. It is submitted that the Claimants are entitled to full amount of Rs. 65,000/- as the exemplars of highest market value should be considered while deciding the amount of compensation.
b. This Hon'ble Court may consider that the lease value of a land and sale value of a land has a vast difference since the leased land would remain with the original owner and after completion of lease period, the land can be transferred by the owner the way the owner wants i.e. sell, lease, rent and/or mortgage the property. Per contra, the land once sold shall not provide any future benefits/interest to the original owner.
Therefore, the market value of a property for sale is higher than the market value of a Page 131 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined property for lease. Hence, the original Claimants are entitled for the enhanced compensation @ Rs. 65,000/- per sq. meter instead of Rs. 26,048/- per sq. meter as granted by the learned Reference Court.
c. The Reference Court failed to consider the oral and documentary evidences submitted by opponent no. 1 and 3 (the objectors) in its true spirit and sense.
d. The Reference Court has failed to appreciate that while moving the proposal for acquisition of the land in question to the government Exh. 183, the commandant categorically indicated that the possession of the land in question is with the government and therefore, the Reference Court ought to have granted compensation to the land owners from the date of possession even prior to the date of date of the order of the GRT i.e. prior to 29.11.1991.
e. The Reference Court ought to have appreciated that a separate suit is not Page 132 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined required to be filed for claiming compensation in respect of possession held by the government of the land in question prior to notification under section 4 of the Land Acquisition Act, 1894 as the said relief is required to be given to the land owners in the reference proceedings itself otherwise the land owners will be ousted from lodging the claim for compensation for possession prior to the notification under section 4 of the Land Acquisition Act, 1894 on the premise of Order II Rule 2 of the Code of Civil Procedure, 1908.
f. The Reference Court has failed to consider the evidence produced at Exh. 146, Exh, 147, Exh. 148 and Exh. 149 for determining the market value of the land in question which unequivocally indicate that the market value of the land in acquisition ought not to have been fixed below Rs. 40,000/- per sq. meter in any case.
g. The Reference Court has committed an error Page 133 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of law in taking into consideration an instance of lease of land by Municipal Corporation for 30 years for the purpose of determining the market value of land in acquisition as it is neither an instance of sale nor the land is of private ownership as in the present case and therefore the Reference Court ought to have fixed the market value of the land in question much more higher than the market value fixed on the basis of the transaction of lease.
h. The Reference Court has failed to appreciate the deposition Exh. 136 of the Commandant wherein it is specifically deposed by the Commandant that the government is in possession of the land in question and therefore, the compensation ought to have been given to the land owners from the date of possession of the government.
i. The Reference Court has erred in law in granting additional compensation under section 23 (1A) of the Land Acquisition Act, Page 134 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 1894 at the rate of 12% per annum from the date of notification under section 4 of the Land Acquisition Act, 1894 till the date of award instead of granting additional compensation at the rate of 12% per annum from the date of possession till the date of award.
j. The Reference Court has erred in law in granting interest under Section 28 of the Land Acquisition Act, 1894 on the excess amount determined as compensation payable to the land owners wrongly construing the date of possession of the land as the date of notification under section 4 of the Land Acquisition Act, 1894 till the excess amount is deposited in the court instead of granting interest from the date of actual possession of the land being dated prior to section 4 notification under the Land Acquisition Act, 1894 till the excess amount is deposited in the court.Page 135 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
7. Essentially, for the purposes of deciding the issue in the appeals and the cross-objections, the appellant - State has challenged the judgement and order of the Reference Court broadly making submissions on two counts; one, that the compensation granted of Rs.26,048/- per sq. mtr. is very high and not as per the prevailing market rate. These submissions have been sub-classified on the correctness / incorrectness of the method of determining the valuation / market price of the land in question. On the question of the sale transaction relating to a smaller extent of land and the percentage of deduction that should be provided towards development cost including the rate at which the yearly percentage of escalation amount that could be added. The other link as a branch of this challenge also includes the error, in the perception of the State in relying upon instances of valuation in the matter of grant of leasehold rights viz. Exhs. 146 and 147 and instances of valuation based on "auction transactions" at Exhs. 148 and
149. 7.1 In the perception of the State, the Reference Court has wrongly awarded interest at 15% per annum from the date of possession i.e. 29.11.1991 till Section 4 notification. As a Page 136 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined branch of this submission, it is the case of the State Government that the Act does not authorize the award of interest / rent prior to issuance of notification under Section 4 of the Act; that in absence of any categorical finding on the aspect of 'possession' of the subject land, the Reference Court has committed an error as taking 29.11.1991 as the base for the purposes of awarding interest as the subject land continued to be in possession of the claimants till the date of Section 4 notification.
7.2 While arguing the appeal, production of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was also pressed into service by the State by producing additional evidence in form of public documents at Annexures A2 to A9 which were indirectly referred in the Land Reference proceedings and various agreement of sale Annexures A10 to A16 entered into between the land owners and third parties for the subject land to assail the reference and the method of valuation arrived at including the question of grant of rent / interest @ of 15% prior to the date of notification under Section 4. These documents were pressed into service to seek remand of the matter for a fresh Page 137 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined reconsideration before the Land Reference Court.
7.3 The learned counsels for the respective parties have, as is evident from the copious written submissions filed which are set out herein above, would indicate that citations have been relied upon on the points raised to support their submissions.
7.4 Before we proceed to discuss and analyze the issues that arise for our consideration, it will be in the fitness of things to give a brief history of the subject land, as produced in the paper book, which is as under:
Sr. Pg.
No. Date Particulars No. in
Paper-
Book
1. -- Subject Land:
Originally Late Shri
Mahendrakumar Purshottambhai
Desai and his forefather were
having the land bearing Survey
No.1/A/2 shown in the City Survey Part-B, bearing Tika Nos.27/15, 27/16 and 27/17), situated near Lalbaug Crossing, Kasba, Page 138 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Vadodara, admeasuring 1,28,073 sq.mtr., equal to approximately 53 Vighas and 17 Vasa ('the subject land' for short), which was in the possession of Late Mahendrakumar Purshottambhai Desai. The subject land is popularly known as 'Police Parade Ground'. The same was later convened into Survey Nos.371 and 372. Note:
1 Vigha = 2378 sq. mtrs.
1 Vasa = 119 sq. mtrs.
2. 01.06.1964 Considering the dispute with regard to the ownership of the subject land, the Ld. Collector was pleased to assign the inquiry of the subject land under Section 37(2) of the Bombay Land Revenue Code.
Note:
(i) Accordingly, a report was submitted by the Asst. Collector stating the ownership of the subject land is that of the State of Gujarat.
(ii) Pursuant thereto, the Ld. Page 139 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Collector had suo motu examined the report and directed a fresh report to be undertaken, whereupon, a fresh report was submitted on 31.11.1996
reiterating the earlier report.
(iii) The said report was carried upto the learned Gujarat Revenue Tribunal ('GRT', for short) by Mahendrakumar Purshottambhai Desai and ultimately everything was remanded back to the Asst.
Collector for fresh consideration.
3. 07.04.1980 The Asst. Collector, Vadodara had adjudicated the claims of the State of Gujarat over the subject land and was pleased to hold that the subject land was of the ownership of the State of Gujarat.
4. 14.051983 Shri Mahendrakumar Purshottambhai Desai had challenged the aforesaid order dated 07.04.1980 before the District Collector, Vadodara, who was pleased to reject the appeal filed by Shri Mahendrakumar Purshottambhai Desai and uphold the above order dated 07.04.1980 passed by the Asst. Collector, Vadodara.
Page 140 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
5. -- Shri Mahendrakumar Purshottambhai Desai filed an Appeal No.TEN.AA.36 of 1990 before the GRT.
6. 18.06.1986 The State Government issued a 112 (Addl.Evide Government Resolution bearing nce) No.LAQ-1084-525-GH, inter-alia, amending the rate of rent at 9% per annum in place of 4.5%, towards rent for the period from the date on which the possession of the land has been taken, till the payment under the provisions of the erstwhile Land Acquisition (Amendment) Act, 1984.
Though the grant of such rent for the period of possession taken prior to the issuance of a notification under Section-4 of the Land Acquisition Act, 1894 does not fall within the jurisdiction of the Ld. Reference Court; the same has been awarded in the present case and that too, at 15% in the impugned Judgment and Order.
7. 20.05.1988 During the pendency of the 197(Addl.Evide to aforesaid dispute, an Agreement nce) 207F for Sale was executed by Mahendrabhai Purshottambhai Desai for himself and as Power of Page 141 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Attorney of his family members as well as in the capacity of Karta of his HUF, in favour of one Dharmendra Jamnadas Shah at the rate of Rs.2.90 per sq. feet i.e. Rs.31.21 per sq.mtr. in respect of the subject land, at the material time.
8. 29.11.1991 The learned GRT, vide its judgment 1 (Addl.Evide and order, allowed the aforesaid nce) Appeal and held that the subject land was in possession, occupation and ownership of the Appellant -
Shri Mahendrakumar
Purshottambhai Desai, while
setting aside the orders passed by the Collector and Assistant Collector, holding the said land to be of the State Government.
9. 06.06.1992 Shri Mahendrakumar 208(Addl.Evide to Purshottambhai Desai for himself nce) 217F and as Power of Attorney holder of his family members as well as Karta of his HUF, executed a Development Agreement in favour of (i) Bholabhai Ramjibhai Patel and (ii) Kantibhai Premjibhai Patel, for developing the subject land at Page 142 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the rate of Rs.20 per sq.mtr.
10. 15.08.1992 Appellant State filed a Writ Petition being SCA No.6428 of 1992, inter-alia, challenging the above-referred judgment and order dated 29.11.1991 of the learned GRT passed in Appeal No.36/1990.
11. 27.11.1992 In addition to the above, the 20 Appellant State being aggrieved by the above referred judgment and order dated 29.11.1991, also filed Special Civil Suit No.776/1992 before the 3rd Joint Civil Judge (S.D.), Vadodara. By virtue of the said Suit, the State Government prayed for following reliefs:
(a) to declare the judgment and
order dated 29.11.1991
passed by the Gujarat
Revenue Tribunal in Appeal
No.36/90 was bad in law,
illegal and without
jurisdiction and not binding
to the appellant-plaintiff and, therefore, the same may be quashed;
Page 143 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined (b) to declare that the suit property described in para 1 of the plaint be of the ownership of the State Government and it was in occupation and user of the State Government; and (c) to declare that the defendants and their associate persons, contractors or developers have no right, title or interest or authority to enter into suit land and further to issue permanent injunction restraining them from carrying on any further construction activity on the suit land and passed such order or orders as may be deemed fit by the court.
12. 17.04.1993 This Hon'ble Court rejected the above-referrred writ petition being SCA No.6428 of 1992 filed by the Appellant State, on the ground of the Appellant State having filed the Special Civil Suit referred to above Page 144 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined for the same cause, with a direction for expeditious hearing of the said Special Civil Suit No.776 of 1992 of the State.
13. 21.03.1994 The Ld. 3rd Joint Civil Judge (S.D.), 29 (Addl.Evide Vadodara, vide its judgment and nce) decree, dismissed the aforesaid Special Civil Suit No.776 of 1992, filed by the State Government, while holding that the State Government had failed to prove that it had the possession of the suit land, either on the basis of ownership or on the basis of physical possession. This was done by the learned Trial Court after having taking into consideration, evidence on record including oral as well as documentary evidence viz. Panchnama dated 06.09.1992 (Exh.134), and Deposition dated 15.01.1994 of Commandant General Mr. Malharrao Balvantrao Sonavane (Exh.136).
14. 12.05.1994 Being aggrieved by the aforesaid judgment and decree dated 21.03.1994, the State Government preferred First Appeal Page 145 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined No.969/1994 before this Hon'ble Court.
15. 31.10.1995 The above-named Shri Mahendrakumar Purshottambhai Desai passed away.
16. 07.10.2000 Agreement for sale was executed 218 (Addl.Evide to by the daughters of nce) 235H Mahendrakumar Purshottambhai Desai in favour of one Shri Champalal Javantraj Sheth, agreeing to sell their 50% share in the subject land for total sale consideration of Rs.1,70,000/-, which may give rise to the rate of Rs.265.47 per sq.mtr.
17. 07.05.2002 This Hon'ble Court vide its CAV 76 Judgment, confirmed the judgment and decree dated 21.03.1994 passed by the learned 3rd Joint Civil Judge (S.D.), while dismissing the above-referred First Appeal of the State Government, and granting status-quo for three months as regards the suit land.
18. 08.08.2002 The State Government preferred SLP No. (Civil) No. 16273-16275 of Page 146 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 2002 which was later numbered as Civil Appeal No.7898-7900 of 2002 before the Hon'ble Supreme Court of India, challenging the aforesaid CAV Judgment dated 07.05.2002 of this Hon'ble Court.
19. 23.09.2002 The State Government issued a 114 (Addl.Evide Circular No.5114, laying down the nce) procedure and principles for determining the land valuation. As per the said Circular, after collecting the sale deeds of last five years made in respect of the lands situated within the vicinity of 1.5 to 2 kms., sale prices thereof should be taken into account by doubling the same in case of developed areas and in case of other areas, it would be made 1 ½ times. Furthermore, it also came to be provided that there should be an yearly escalation of 15% for the developed areas and 10% for the other areas.
Note:
(i) The aforesaid Government Circular categorically provides that the provision for doubling or making 1½ times, the basic price, 117 Page 147 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined would not apply for determining the valuation under the land acquisition proceedings and the yearly escalation would be restricted to 10% for such lands.
(ii) The said Circular is in
operation even as on today.
20. 10.04.2006 The Hon'ble Supreme Court, vide 89
its Judgment, partly allowed the aforesaid Appeal in favour of the State Government to the extent of
2 Vighas 5 Vasas of land of new Survey Nos.398/1 and 398/2 (given in lieu of old Survey Nos.371 and
372) out of total 1,28,073 sq. mtrs.
of the subject land, leaving the remainder land admeasuring 1,22,718 sq. mtrs. to be in the ownership and possession of the Respondents, while confirming the findings recorded by the Ld. Trial Court as well as by this Hon'ble Court, being based on evidence on record.
21. 07.09.2006 Valuation Report was prepared by 118 (Addl.Evide Town Planner, Vadodara, nce) determining the market value of land of City Survey Nos. 12 and 13, admeasuring 6125.64 sq. mtrs at Page 148 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the rate of Rs. 43,000/- per sq. mtrs. and the same was submitted to the Collector, for the purpose of 121 granting the same on lease basis for 30 years.
The aforesaid exercise was done after having taken into consideration the sale deed dated 25.01.2005, as referred to at Sr.No. 8 in a table contained in a statement attached to the said Valuation Report, with respect to the rate of market value of nearby land of City Survey No. 139 admeasuring 1992.29 sq. mtrs.
being at Rs. 10,038 per sq. mtr. as on 25.01.2005 and doubling the same as per the aforesaid Circular dated 23.09.2002, and then, calculating 15% yearly escalation, for reaching the figure of Rs.25,004.98 per sq. mtrs. To this amount, there was further addition of 25% for the said land of City Survey Nos.12 and 13 being on the main road, 25% towards frontage and 10% for location advantage, giving rise to the figure of Rs.
Page 149 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 43,000 per sq. mtrs.
22. 13.09.2006 The Minutes of Meeting of the 129 @ District Land Valuation Committee 143 (DLVC) headed by the District (Exh.1
47) Collector, were prepared, as per which, the market value of land of City Survey Nos.12 and 13, admeasuring about 6125.64 sq.mtrs. located at station area was fixed at Rs.40,000 per sq.mtr., for the purpose of granting lease thereof in favour of Municipal Corporation. This was done after having taken into account the aforesaid Valuation Report dated 07.09.2006 of the Town Planning Officer, prepared on the basis of the above referred Government Circular dated 23.09.2002, except for the addition of 10% for location advantage.
23. 25.01.2007 State Government issued a 95-A & Notification in a daily newspaper 09.02.2007 (Addl.Evide under Section 4(1) of the Land nce) Acquisition Act, 1894 ('the said Act' for short), notifying that the subject land, bearing City Survey No.1/A/2 admeasuring about 1,22,718 sq.mtrs. situated near Page 150 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Lalbaug Crossing, Vadodara is required for Police Training School. The said notification was notified in the Government offices on 09.02.2007, and the same has been considered for the purpose of the Award.
24. 22.03.2007 The State Government issued a Notification under Section 6 of the Act inter-alia, declaring that the subject land is required for public purpose.
25. 30.03.2007 Valuation Report came to be 189(Addl.Evide submitted by Town Planner, Town nce) Planning & Valuation Department, Vadodara, determining the price of the subject land at Rs.2586/- per sq.mtr., after having taken into consideration the description / 193 situation of the subject land admeasuring 1,22,718 sq.mtrs.
including its low lying position and frontage as well as 14 different sale deeds as per the statement attached therewith.
26. 09.04.2007 District Land Price Committee 195 (Addl.Evide ("DLPC" for short) held its meeting nce) Page 151 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined and drew minutes thereof, determining the price of the subject land as per SOR, at Rs.1914 per sq.mtr., after reducing the price of Rs.2586 per sq.mtr.
determined in the aforesaid
Valuation Report dated
30.03.2007; in view of the subject land - (i) being in the shape of a strip of land, (ii) having more depth rather than the frontage, (iii) lying low to the extent of 1.22 cubic mtr. from the surface of the main road, and (iv) requiring filling up, entailing expenses for the same.
27. 11.12.2008 An award under Section 11 of the 96 said Act came to be made, awarding an amount to the tune of Rs.33,33,15,552/- calculated at the rate of Rs.1914/- per sq.mtr. to the land owners.
28. 20.02.2009 Land owners filed Land Reference Case Nos.35, 37 and 55 of 2009 under Section 18 of the said Act, interalia, praying for:
(a) To quash the price Page 152 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined determined at the rate of Rs.1914 per sq.mtr. and declare it to be Rs.65000/- per sq.mtr. (b) To declare 30% solatium on the compensation amount, and (c) 12% increment. (d) Over and above the aforesaid amount, to declare 9% interest from the date of possession upto 1 year and thereafter 15% interest till the amount of compensation is disbursed. 29. 07.12.2019 Agreement for sale was executed 236 (Addl.Evide to by the heirs of Mamtaben w/o nce) 243
Dilipbhai Upadhyay (daughter of Mahendra Purshottambhai Desai), assigning their 1/7th right in the subject land for receiving further compensation and other benefits pursuant to the land acquisition proceedings w.r.t. the land in question in favour of (i) Amarbhai Ramanbhai Patel i.e. Respondent Page 153 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined No.4 in the captioned appeal and
(ii) Sushilaben Rajendrakumar Barot i.e. Respondent No.5 in the captioned appal for total consideration of Rs.20 crores, which would give rise to the rate of Rs.11,408/- per sq. mtr.
30. 14.12.2019 Agreement for sale was executed 244 (Addl.Evide to by the daughter of the above nce) 250 named Mahendra Purshottambhai Desai, i.e. Samtaben w/o Kaushikbhai Bhalchandra, assigning her 1/7th right in the subject land for receiving further compensation and other benefits pursuant to land acquisition proceedings w.r.t. the subject land in favour of (i) Amarbhai Ramanbhai Patel i.e. Respondnet No.4 in the captioned appeal and
(ii) Sushiolaben Rajendrakumar Barot i.e. Respondent No.5 in the captioned apepal for total consideration of Rs.20 crore, which would give rise to the rate of Rs.11,408/- per sq.mtr.
31. 14.12.2019 Agreement for sale was executed 251 (Addl.Evide to by the daughter of Mahendra Page 154 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined nce) Purshottambhai Desai, i.e. Kinnari 257 w/o Umeshbhai Gunwantbhai, assigning her 1/7th right in the subject land for receiving further compensation and other benefits pursuant to land acquisition proceedings w.r.t. the subject land in favour of (i) Amarbhai Ramanbhai Patel i.e. Respondent No.4 in the captioned appeal and
(ii) Sushilaben Rajendrakumar Barot i.e. Respondent No.5 in the captioned appeal for total consideration of Rs.20 crores, which would give rise to the rate of Rs.11,408/- per sq. mtr.
32. 14.12.2019 Agreement for sale was executed 258 (Addl.Evide to by the son of Mahendra nce) 263-A Purshottambhai Desai i.e. Alark Mahendrabhai Desai in favour of
(i) Amarbhai Ramanbhai Patel i.e. Respondent No.4 in the captioned appeal and (ii) Sushilaben Rajendrakumar Barot i.e. Respondent No.5 in the captioned appeal, agreeing to assign his 1/7 th right / share in the subject land for total consideration of Rs.55 crores, Page 155 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined which may give rise to the rate of Rs.31,373/- per sq. mtr.
33. 05.03.2022 Learned Reference Court at 1 (FA) Vadodara, rendered its Judgment, raising the rate of compensation from Rs. 1914/- per sq.mtr. as provided under the Award dated 11.12.2008, to Rs.26,048.00/- per sq.mtr., with respect to the subject land, admeasuring 1,22,718 sq.mtrs. This was done, after taking into account the aforesaid minutes of the meeting dated 13.09.2006 of the District Valuation Committee (Sr.No.22 above), inter-alia, deciding the valuation of City Survey Nos.12 and 13 Paiki, admeasuring about 6125.64 sq.mtrs. situated at station area at Vadodara (Kasba), by applying the rate of market value of another nearby land of City Survey No. 139, admeasuring about 1992.29 sq. mtrs., and ultimately directed the State Authorities to grant the following amounts to the claimant:
(i) Rs.296,16,76,212.00 by way of additional (i.e. excess) Page 156 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined compensation at the rate of Rs.24,134/- per sq.mtrs. (i.e. Rs.26,048.00 - Rs.1914.00 per sq.mtr.), under Section 23(1) of the Act.
Note: The Ld. Reference Court calculated the aforesaid amount with 76-77 respect to the subject land, (FA) by applying the base rate of Rs.25004.98 per sq.mtr.
applicable to the nearby land of City Survey Nos.12 and 13, admeasuring 6125.64 sq.mtr., as determined by DLVC in its meeting held on 13.09.2006, while further adding thereto, an escalation amount @ 10% for 5 months (i.e. from 13.09.2006 to 09.02.2007) being to the tune of Rs.1043 per sq.mtr., totalling to Rs.26,048 per sq.mtr (i.e. Rs.25,004.98 per sq.mtr. plus Rs.1043 per sq.mtr.).
(ii) Rs.65,15,68,766.64 by way of interest at the rate of 12% p.a. on additional compensation under Section 23(1A) of the Act from 09.02.2007 i.e. date of Section 4 Notification to 11.12.2008 i.e. Date of Award.
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(iii) Rs.88,85,02,863.60 by way of solatium of 30% on the amount of additional compensation under Section 23(2) of the Act on the above referred market value of the land in question.
(iv) Rs.729,20,94,260.00 by way of interest / rent at the rate of 15% from 29.11.1991 i.e. the date on which the State Authority was alleged to have come into possession of the land in question to 09.02.2007 i.e the date of Section 4 Notification, i.e. for the period anterior to Section 4 Notification.
__________________ Rs.1179,38,42,102.65
(v) Rs.26,65,50,859.00, by way of interest @ 9% p.a. on the additional compensation for the period of one year from 09.02.2007 i.e. date of Section 4 Notification, under Section 28 of the Act.
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(vi) Rs.666,37,71,477.00, by way of interest @ 15% p.a. on the amount of additional compensation from 10.02.2008 till date i.e. 17.02.2023, under the proviso to Section 28 of the Act.
__________________ Rs.1872,41,64,438.73 __________________
34. 11.11.2022 Appellant - State Government filed the captioned appeals.
35. 06.04.2023 This Hon'ble Court passed an order and admitted the captioned appeals.
7.5 Before we proceed to appreciate the judgement and award of the Reference Court, it shall be worthwhile to reproduce hereinbelow the translated version of the relevant paragraphs of the award. The same read as under:
"(19) The judgements of Hon'ble Supreme Court and Hon'ble High Court produced on behalf of the applicants were perused. The principle established in the judgements was perused. As discussed above, it is also admitted on behalf of the Page 159 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined respondents that the acquired land is situated in the prime location of Vadodara.The award under section 11 for acquisition of the aforesaid land was passed on 11/12/2008, wherein compensation was ordered to be paid at the rate of Rs. 1914/- per sq. m. for the aforesaid land.
The applicant has stated in his application and in the affidavit at Exh. No. 130 that as per the Jantri of the land, rate of the jantri of Rs. 6300/- per sq.m. has been applied to the the land in suit. As the order was passed against the Government, Superintendent of Land Records cum Consolidation Officer, Vadodara, has given opinion to approach Supreme Court against the judgement of Hon'ble High Court of Gujarat vide his letter no. C.T.S./Vashi/1434/2002 dated 28/05/2002 addressed to District Collector and stated that the land in suit is situated in the middle of Vadodara and its price is approximately 200 crore rupees. In view of the documents produced on behalf of the applicants and the award under the section 11, it is stated that jantri rate is Rs. 6300/- per sq.m. The Land Acquisition Officer has stated in his opinion that, "In view of different evidences produced by the land owner and potentiality of the land under the acquisition, market price of the land under acquisition is Rs. 20790/- (Rupees Twenty Thousand Seven Hundred Ninety only)."
"Under these circumstances, in my opinion, market price of the acquired land can be considered to be Rs. 10,000/- per sq.m." In view of the aforesaid fact and documents produced on behalf of the applicant, compensation paid to the applicants at the rate of Rs. 1914/- per sq.m. can be considered to be less.Page 160 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined (20) If the documents relied upon by the applicants for the enhancement of the compensation for the acquired land are taken into account, sale/lease deeds adduced vide Exh. No. 146 to 149 have been relied upon. The applicant states in the examination-in-chief that the land acquired as per compensation case no. 18/2006 is situated in Kasba area of Vadodara. The Deputy Town Planner assessed the prevailing market price of the land bearing Vadodara Kasba Revenue Survey Nos. 553, 554 paiki, admeasuring 21414, 4038 sq.m. (Land C) situated near the aforesaid acquired land on 17/04/2000. In this regard, meeting of the Land Price Committee was convened under the Chairmanship of the Collector, Vadodara, on 17/04/2000. The meeting of the Land Price Committee consisting of (1) Collector, Vadodara - Chairman, (2) District Development Officer, Vadodara- Member, (3) Deputy Town Planner, Vadodara - Member, (4) Resident Deputy Collector, Vadodara - Member, and (5) Deputy Collector, Land Reforms, Vadodara, was convened on 17/04/2000 and market price of Rs. 28000/- per sq.m. was unanimously fixed for the Kasba, Vadodara. The minutes of meeting of the Land Price Committee dated 17/04/2000 was recorded.
The copy of aforesaid minutes of the meeting is produced vide Exh. No. 146. The market price of the land prevailing on 17/04/2000 mentioned at sr. no. 17 above Vadodara Kasba in the aforesaid minutes was fixed. The applicant has relied upon the aforesaid evidence for obtaining compensation of the acquired land. The land mentioned above Vadodara Kasba of which price was fixed by Land Price Committee and the acquired land of the applicant are situated at Kasba, Vadodara. The distance between aforesaid lands is 2 kilometers. Both lands can be used for non-agricultural Page 161 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined purpose. But, the difference between them is that the acquired land of the applicant is situated on Rajmahel Road in the middle of Vadodara and in the developed area, whereas the aforesaid land of which price was assessed by Land Price Committee is situated in the under developed area. Despite that, Land Price Committee fixed market price of Rs. 28,000/- per sq.m. prevailing as on 17/04/2000 in view of continuous increase in the demand of the land due to relentless development of Vadodara city. The land of the applicant acquired in accordance with compensation case no. 18/2006 was acquired vide notification dated 09/02/2007 under section 4. Therefore, there is a gap of 6 years, 9 months and 24 days between 17/04/2000 and 09/02/2007. As per guidelines laid down by Hon'ble Supreme Court and Hon'ble Gujarat High Court regarding annual price increase in the market price, for the period between aforesaid dates, considering annual 35% price increase in the developed cities i.e. in the urban area, the applicant can fetch more market price of the acquired land than as demanded in his application.
If the document at Exh. No. 146 is taken into account, it is regarding the meeting of Land Price Committee convened on 10/04/2000. If sr. no. 17 in the minutes of meeting is taken into account, it is regarding agenda no. 21 (Hotel Welcome) bearing Vadodara Kasba Revenue Survey Nos. 553, 554 paiki, admeasuring 21414, 4038 sq.m. land (Land C). In this case, Deputy Town Planner has assessed price of Rs. 27,600/- per sq.m. The Land Price Committee unanimously fixed price at the rate of Rs. 28,000/- (Rupees Twenty Eight Thousand Only) per sq.m. As total price is more than 50 lakh rupees, the price shall have to be fixed after placing the same before the Land Price Committee Page 162 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of the State Government. In view of the same, minutes of the meeting of the Land Price Committee of the State Government has not been produced. Under these circumstances, it does not become clear as to whether the same is approved by the Committee of the State Government or not. Therefore, present document cannot be taken into account for fixing market price of the acquired land.
The applicant has further stated in the examination-in-chief that Vadodara Mahanagar Palika advertised in the daily newspaper for leasing the land, admeasuring 2200.00 sq.m., out of 3200.00 sq.m., bearing Vibhag 4, Vasana, T.P. Scheme No. 15, Final Plot No. 166, belonging to Vadodara Municipal Corporation, for 99 years, and accordingly, its auction was conducted on 08/02/2007. In the aforesaid auction, the highest bid was Rs. 40,200/- per sq.m. and highest bidder was Avenue Super Mart Pvt. Ltd. Therefore, Vadodara Municipal Corporation decided to lease the aforesaid land for 99 years. The aforesaid company paid Rs. 8,84,40,000/- (Rupees Eight Crore Eighty Four Lakh Forty Thousand) towards the amount of the premium at the rate of Rs. 40,200/- per sq.m. for the land admeasuring 2200.00 sq.m. Therefore, Vadodara Municipal Corporation executed lease deed no. 4527 on 24/05/2007 in favour of Prakash Pachisiya, residing at Mumbai, on behalf of Avenue Super Mart Pvt. Ltd., for 99 years. The aforesaid deed was registered in the office of Sub-Registrar, Vadodara, Gorva. The certified copy of the same is produced vide Exh. No. 148. The transaction of lease deed for 99 years is bonafide and genuine. The transaction of having leased out for 99 years has taken place in the auction on 08/02/2007.
Page 163 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined However, the land in question in Land Acquisition Case No. 18/2006 has been acquired vide the notification dated 09/02/2007 under Section 4 of the Act. Thus, the aforesaid transaction of leasing and the Notification under Section 4 pertain to the same time period. The land under acquisition is situated in the central part of Vadodara city and in the most developed area of the city. Whereas, the land stated in the aforesaid Lease Deed as being conveyed on 99 year lease basis is situated in Vasna area. It is located in close proximity of their land and it is located in an under- developed area. Had the stated land been sold through a public auction, Vadodara Municipal Corporation could have fetched a price higher by one and half to two times than the rate of Rs.40,000/- per square meter. The construction and commercial potentiality of the land under acquisition is much higher than the aforesaid land. Therefore, in their Land Acquisition Applications, the applicants have demanded compensations at the rate of Rs.65,000/- per square meter, which should be rendered to them along with all the benefits entitled under the Land Acquisition Act.
During the Examination-in-Chief, the applicants have further stated that, the land out of Final Plot No. 549/1 was situated in T.P. Scheme -1 of Akota Part-3 under the Vadodara Municipal Corporation. The Vadodara Municipal Corporation had published an advertisement in the newspaper for conveying the land measuring 5556.00 square meter out of the stated final plot on 99 year lease basis. The auction took place on 09/02/2007, wherein a company, named M/s. Avenue Super Mart Pvt. Ltd., participated and bid the price of Rs.45,500/- per square meter for a lease of 99 Page 164 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined years, which came to be sanctioned by the Vadodara Municipal Corporation. Pursuant to that, the aforesaid company had rendered the amount of premium, i.e. Rs.25,27,98,000/- (Rupees twenty five crore twenty seven lakh ninety eight thousand), in full. The stated transaction took place on 08/02/2007. It is a bonafide and genuine transaction. The transaction dates to the period of the impugned Notification under Section 4. On receiving the above mentioned premium amount, the Vadodara Municipal Corporation executed a Lease Deed for a period of 99 years in favor of M/s. Super Mart Pvt. Ltd. through Prakash Pachisiya, residing at Mumbai, which has been registered before the Sub Registrar, Akota, Vadodara -3 at Sr.No. 4903 and a copy thereof is produced at Exhibit 149. Akota area is located at a distance of about one kilometer from the land under acquisition. The type of the land stated in the aforesaid Lease Deed and the land under acquisition is same. But, geographically and considering potentiality of construction, their land is situated in the middle of Vadodara city and is located in the most developed area of the city. Whereas the land stated in the aforesaid Lease Deed is situated in an under-developed area. Therefore, the market-price of their land under acquisition is two times more than the stated land. Had the stated land been conveyed through a Public Auction, Vadodara Municipal Corporation was likely to fetch a price much higher than Rs.45,000/- per square meter. Therefore, in their Land Acquisition Reference, the applicants had demanded compensation at the rate of Rs.65,000/- per square meter, which is just and reasonable and the same should be rendered to them with all the benefits entitled under the Land Acquisition Act.
Page 165 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined (21) Among the documents relied on by the applicants, one is the Lease Deed executed by Vadodara Municipal Corporation for conveying the land, through the Public Auction dated 08/02/2007, on a lease of 99 years and having area of 3200 square meter out of the Final Plot No. 166 in T.P. Scheme No.15, in favor of M/s. Avenue Super Mart Pvt. Ltd. which is registered with the Office of Sub Registrar, Vadodara, Gorva Branch on 24/05/2007 and produced in the case at Exhibit 148. The other document relied on is the Lease Deed executed by Vadodara Municipal Corporation for conveying the land, through the Public Auction dated 09/02/2007, on a lease of 99 years and having area of 5556 square meter out of the Final Plot No. 548/1 in T.P. Scheme No.1, in favor of M/s. Avenue Super Mart Pvt. Ltd. which is registered with the Office of Sub Registrar, Vadodara, on 24/05/2007 and produced in the case at Exhibit 149. The documentary evidences have been produced. Learned Advocate for the applicants has submitted that, as the present documents are related to the period when the Notification under Section 4 came to be published, it has been urged to calculate the Market-Price accordingly.
(22) Both the above mentioned documents are the deeds executed by the municipal corporation in favor of M/s. Avenue Super Mart. The subject lands of the deeds are situated in Akota and Vasna, respectively, whereas the acquired land belongs to Kasba area. Thus, the lands of the produced documents and the land under acquisition belong to different areas. Both the lands, i.e. that of Exhibit 148 and 149, are the final plots of T.P. Schemes. Though the acquired land is used for non-agriculture purpose for many years, it is an uninterrupted strip of 53 Veegha and 18 Vasa, i.e. Page 166 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined a single unit having measuring 122718 square meter. It is a huge parcel of land. Perusing the award under Section-11, the whole or most of the part of the acquired land cannot be considered as 'situated on a main road'. A Final Plot in a T.P. Scheme is a plot finalized after deduction for easement, roads etc. Therefore, it cannot be equated with the acquired land. Moreover, the land under acquisition and the land conveyed by the municipal corporation on lease basis are situated in different areas. Considering all these facts, these documents cannot be helpful in determining the market price of acquired land.
(23) In the affidavit of the evidence at Exhibit 147, the applicants have, relying on the Entry No.20 dated 13/09/2006, submitted before the District Land Valuation Committee that, the case of acquisition of the land measuring 6125.64 sq.mtr. at Taluka and District Vadodara City, Mauje Vadodara (Kasba) City Survey No. 12 and 13 and situated adjoining the lands of the applicant, was referred to the District Committee for determining the Market Price as the land was to be acquired by the municipal corporation, on a lease of 30 years, for the purpose traffic management. In the committee meeting, i.e. meeting of the District Land Valuation Committee, dated 13/09/2006, the Market Price was determined, unanimously, at Rs.40,000/- per square meter. The lands of the stated City Survey no. 12 and 13 and the land in question are located in a close proximity and prospect and potentiality of development for both the parcels of lands are equal. The minutes of the District Valuation Committee dated 13/09/2006 is produced at Exhibit 147. Perusing Entry No.20 of the minutes of meeting dated 13/09/2006, it emerges that;
Page 167 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined For determining current Market Price of the land admeasuring 6125.64 square meter out of Taluka and District Vadodara, Mauje Vadodara Kasba City Survey No. 12 and 13 to be acquired on 30 years' lease basis for the purpose of traffic management.
(a) In the case on hand, the following facts have been discussed in detail.
Sr. Panch Average Jantri Rate Rate
Kyas Sell determined
Price by the Town
Planner
1 - - Rs.5300/- Rs.43000/-
per sq.mtr. per sq. mtr.
Date:
07/09/2006
A copy of Panch-Kyas is not received along with the case papers.
Generally, Jantri Rates reflect a price lower than the price actually prevailing.
Price Evaluation:
Sr. Description of Sell Price Remark Rs. per Sq.
Mtr.
1 Sell price of the 25004.98 Sell
considered sell Transaction
transaction no.8
2 Increase in the 25004.98 25% increase
sell price to be + 6251.25 entitled to the
appropriated ---------------- land for its
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NEUTRAL CITATION
C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024
undefined
31256.22 location of
cross road
frontage
31256.22 25% increase
+ 7814.06 entitled to the
---------------- land under
39070.28 evaluation for
its
advantageous
location
3 Any decrease in ---------------
the likely sell
price
4 Price arriving 39070.28 Rs. per Sq.
after increase - Mtr.
decrease
5 Price determined Rs. 40000/- Per Square
unanimously Meter
(c) The current Market Price of the land, to be acquired on 30 years' lease basis for the purpose of traffic management, measuring 6125.64 square meter out of Taluka and District Vadodara, Mauje Vadodara Kasba City Survey No. 12 and 13 is determined at Rs.40,000/- (Rupees fourty thousand) per square meter.
Considering the facts, the price has been determined on the basis of the Sale Deed. In the Sale Deed, the selling price is shown as Rs.25,004.98 square meter, wherein an increase of 25%, i.e. Rs.6,251.24 per sq. mtr. has been shown as entitlement for its wide frontage to the cross roads and 25% increase, i.e. Rs.7814.06 per square meter, has been shown as entitlement for its Page 169 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined advantageous location and thus, arrived at the market price of Rs.39070.28 per square meter. Thereafter, Rs.40,0000/- per square meter has been determined as the Market Price, unanimously.
The stated land and the land under present acquisition belong to one area, i.e. Kasba of Vadodara city. These facts have been admitted by the Respondents in their cross-examination. But, upon considering a copy of the award under section 11 with respect to the land acquired, it has been considered that the entry gate is situated on the main road, but it is recorded that the depth of the land is about three to four times with respect to its width. Whereas, the land of the deed which is relied upon has a wide frontage of cross roads and therefore, twenty five percent surplus has been given. The area of the land of the deed produced is 6125.64 Sq.M., whereas, total area of the land acquired is 122718 Sq.M. (53 Bigha 18 Vasa). Considering the said facts, while determining a market value of the land bearing such a large area, valuation of the whole area cannot be done on the same scale. Therefore, in the valuation of the land shown in the deed produced, surplus of twenty five percent for the wide frontage of cross roads and twenty five percent for location advantage has been added and it appears appropriate to consider the selling price as Rs.25,004.98 per Sq.M. by determining the market value of the land acquired. Thus, it appears appropriate to consider the original selling price of Rs.25,004.98 as mentioned in Entry No.20 of the District Land Valuation Committee shown in the Exhibit-147.
(24) The minutes of the District Land Valuation Committee is dated 13/09/2006. Whereas, the notification under section 4 with respect to the Page 170 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined disputed land acquired vide Acquisition Compensation Case No.18/2006 has been published on 09/02/2007. The difference between the above two is of about 4 months 26 days. As per the numerous decisions of the High Court, price rise at the rate of ten percent per annum can be applied while determining market price of the land. In view of the same, considering the price rise at the rate of 4.17 percent for the period of five months, adding the amount of Rs.1043 per Sq.M. in Rs.25,004.98 per Sq.M., the market price of the land can be considered Rs.26048 per Sq.M. and accordingly, as the applicants are entitled to get the compensation for the land, the decision of Point No.1 is in affirmative.
(25) The applicants state that, they are entitled to get the compensation with effect from the time of possession of the land and that, the respondents have been in possession of the said acquired land for many years and they are entitled to claim interest on the amount of the compensation with effect from that time. Whereas, the respondents have refused the fact that the Government / respondents had possession of the land earlier. The applicants have produced copies of the documents pertaining to the earlier Court proceedings as a documentary evidence to state that the Government had already been in possession of the land. In the cross-examination of Shri Anil Jesangbhai Patel conducted under the affidavit of his evidence vide Exhibit-189, he has accepted the fact that, upon examining a certified copy of the panchnama of Exhibit-134, he states that, a panchnama has been drawn for the facts that, the Government has the possession and there are wire fencing, various large grounds and a construction erected on it. Upon examining a copy of Special Page 171 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Suit No.776/1992 produced vide Exhibit-135, he states that, the said suit was filed by the Government against Mahendrakumar and his heirs. He states it to be true that, it has been recorded in the suit that, the land bearing City Survey No.1/Kh/ 2, Tika No.27/15, 27/16, 27/17, Part-B of city survey map of Vadodara City, admeasuring 128073 Sq.M., i.e. about 53 Bigha 17 Vasa is a subject- matter of this suit and the said property is owned and occupied by the Government. As per the original draft dated 1912 of Hajimali mentioned in paragraph-B, the said land was registered in the name of Tharav Police Chowki etc. of Government Regiment in the Government records and the whole land had never been owned or occupied by the respondent No.1. As the said land was owned and occupied by the Government, it was used for Fatesingh Regiment. It has been stated in the plaint that, the said land was registered in the name of and occupied by the Government. Further, in the old survey numbers of these lands, Exhibit- 137 is panipatrak and copy of the panipatrak is from 1901 to 1903. Column 4 in it shows the name of owner as Desai Sureshbhai Narbheram and column 5 shows Fatesingh Regiment against the name and caste of agriculturist. He has stated it to be true that, the deposition given in Special Suit No.776/1992 produced vide Exhibit-136 is of Malharrao Balwantray Sonvane, Retired Commander, State Reserve Police Force, Vadodara. In his examination-in-chief, he has stated that the acquired land in question have been occupied since 01/05/1940. He has stated it to be true that, the Government had filed an appeal in the Supreme Court challenging the order of the Gujarat High Court and in the said appeal, the Government submitted an affidavit and in the said SLP No.16273/2002 and 16275/2002, the Government Page 172 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined stated that, "the market price of the land in question is more than Rs.200 crore and it is occupied by the Government for Police Training School." By instituting a suit vide Special Suit No.776/1992 in the Vadodara Court, it has been stated that the said acquired land has been owned and occupied by the Government for a period of more than 100 years. It is true that, upon being shown Exhibit-150, I state that, the Superintendent, Land Records cum Consolidation Officer, Vadodara sent a letter vide letter No. CTS / Vashi / 1434 / 2002 dated 28/05/2002 to the District Collector, Vadodara stating that, the land in question from the times of Vaodara State was used and occupied by Fatesingh Regiment and the same is presently occupied by S.R.P. Group No.1. In the fax message received from the Assistant Government Pleader, it is stated that the land in question has been occupied by the Government for 70 years. Further, considering a copy of the panipatrak of Exhibit-137, it is stated that the land is occupied by Fatesingh Regiment. Considering all the facts, it can be believed that the said acquired land is occupied by the respondents from the earlier times. The applicants in their affidavit of evidence have stated that the acquired land has been occupied by the Government since 1895 and sought a compensation from that time. On the basis of the above mentioned evidence, it can be believed that the acquired land has been occupied by the respondents for many years, but exact period of occupancy by the respondents has not come on record.
(26) The acquired land was sought on lease for the purpose of making a hotel on it on 23/09/1960, following which, Mahendrakumar P. Desai, the father of the applicants submitted an objection on Page 173 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 26/11/1962 and from then, the legal proceedings with respect to the land in question was initiated by the applicants.
Upon sending the objection to the City Survey Office, Vadodara, it was informed on 19/02/1963 that the acquired land is owned and occupied by the Government. The Assistant Collector passed an order dated 01/06/1964 and held that, the said land was ancestral property of the father of the applicants. The Collector suo motu set aside the order of the Assistant Collector and ordered revision. Thereafter, the Assistant Collector, Vadodara passed the order dated 30/11/1966 stating that the said land was a part of parade ground and owned by the Government.
In the Appeal No.4/1967 filed by the father of the applicants challenging the said order, an order dated 09/08/1968 was passed against the father the applicants. The father of the applicants filed an appeal vide Appeal No.137/1968 before Gujarat Revenue Tribunal. Gujarat Revenue Tribunal remanded it to the Assistant Collector, Vadodara after carrying out revision with respect to some points on 11/07/1969. In the said case No.37(2) and 2/73, the Collector, Vadodara passed an order on 07/06/1980 rejecting the demand of the father of the applicants. The acquired land was held to be owned by the Government and Fatesingh Regiment as a part of Fatesingh Regiment. The father of the applicants filed an appeal vide Appeal No.15/1981 in the Court of the Collector and the same was dismissed on 14/05/1983 and it was held that the acquired land of Fatesingh Regiment includes 371 and 372 and that it was owned by the Government. Aggrieved by the said order, the father of the applicants filed an appeal vide Appeal No. T.E.N.A. Page 174 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 36/90 before Gujarat Revenue Tribunal and on 29/11/1991, the appeal was allowed and the said acquired land was held to be of private ownership. But the said land had already been occupied by the Government and challenging the said order, the Government filed SCA No.6428/92 in the High Court of Gujarat. The Judgment with respect to the said acquired land came in favour of the father of the applicants and therefore, after carrying out procedure under the Urban Land (Ceiling and Regulations) Act, a permission as per section 21(1) for construction of residential houses was obtained on 29/06/1992. When he went to the site to start the process of construction, the Government stopped him and told that the land is occupied by the Government.
Thereafter, the father of the applicants filed a suit against the Commander, S.R.P. Group No.1, Government, Principal Training School etc. and sought a relief to restrain the respondents or their Officers from preventing him to carry out construction work on the said land. The Civil Judge granted interim injunction. But, since the said land was occupied by the Government, the father of the applicant was not allowed to enter in the acquired land. Civil Appeal No.194/1992 was filed before the District Judge by the government, wherein the order of Exhibit - 5 was set aside. Thereafter, the father of the applicant filed Civil Revision Application No.1341/1992 in the Hon'ble High Court and the Special Civil Suit No.776/1992 was filed by the State in the Civil Court, Vadodara. The suit was tried and an order dated 21/03/1993 was passed in favour of the applicants. The State filed First Appeal No.969/1994 in the Hon'ble High Court against the same. In this regard, the order was passed on 07/05/2002 against the State and Page 175 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the order was kept in abeyance for three months considering the possession of the State on the land. Thereafter, the State filed Civil Application No.7898/7900-2002 in the Hon'ble Supreme Court against the Hon'ble Gujarat High Court, wherein the land was held to be the ancestral land of the applicants and the order was passed on 10/04/2006 in favour of the applicants.
(27) Among the judgments of the Hon'ble Supreme Court and the High Court produced on behalf of the applicants, following judgments have been produced with respect to the entitlement for getting interest from the time when the respondent took over possession of the acquired land. If the same are considered, it appears that (1) in the judgment in Supreme Court Civil Appeal No.1867/2009, 2016 (0) A.I.G.E.L.S.C. 58071 Balwansing vs. Land Acquisition Collector, the order was passed by the Hon'ble Supreme Court to pay an additional interest at the rate of 15% per annum from 01/07/1984 when the State took over the possession of the land till 02/09/1993, which was the date of notification as per Section 4(1) of the said Act. (2) in the judgment in Supreme Court Civil Appeal No.7175/2013, 2013 (0) A.I.G.E.L.S.C. 57514 Tehrakhatun Vs. Land Acquisition Officer, the order was passed to pay the interest at the rate of 15% per annum to the applicants as rent/damages from 01/01/1938, date of the possession, till 10/01/1996, the date of notification as per Section 4(1) of the said Act. (3) in the judgment in Supreme Court Civil Appeal No.2693/2007, 2007 (0) A.I.G.E.L. S.C. 39434 Madi Shetty Balaramul vs. Land Acquisition Officer, the order was passed to pay an additional interest at the rate of 15% per annum from 16/03/1979 to 22/12/1991. (4) in the judgment in Supreme Court Page 176 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Civil Appeal No.1213/2016 Heirs of Decd. Ghelabhai Valabhai vs. Second Additional Special Land Acquisition Officer, the order was passed to pay the interest at the rate of 15% per annum from the date of taking over possession from the applicant to the date of notification as per Section 4(1) of the said Act, i.e. from 01/07/1984 to 02/09/1993. (5) in the judgment in Gujarat High Court First Appeal No.5828/2019 Heirs of Decd. Nagjibhai Valabhai Vs. Second Additional Special Land Acquisition Officer, the order was passed to pay the additional interest at the rate of 15% per annum from the date of taking over possession from the applicants to the date of notification as per Section 4(1) of the said Act, i.e. from 01/07/1984 to 02/09/1993. In the same manner, in the judgments in (6) 2020 (0) A.I.G.E.L. - S.C. - 2769 Merabhai Bhagwanbhai Vs. Second Additional Special Land Acquisition Officer, (7) 2011 (0) A.I.G.E.L. - H.C. - 226303 State of Gujarat Vs. Jayantbhai Chaturbhai Son of Deceased, (8) A.I.R. 1989 Bombay 9 At Nagpur State of Maharashtra and Ors. Vs. Nanabh Rathod and Ors., the orders have been passed to pay additional interest from the date of possession.
(28) Considering the aforesaid facts, there was a dispute between the State and the father of the applicants for many years with respect to the right of ownership of the acquired land. The Appeal No. T.E.N.A. 36/90 before the Gujarat Revenue Tribunal was allowed on 29/11/1991 and the acquired land was held as the land of private ownership. The said order has been upheld. Thereafter, permissions were sought to construct residential houses after carrying out the procedure under the Urban Land (Ceiling and Regulation) Act. Even after getting the permission, the State Page 177 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined prevented Decd. Mahendrakumar Desai from performing action. Considering the said facts, legal proceedings had been going on between the State and Decd. Mahendrakumar P. Desai since 1960 with respect to the ownership of the land. However, for the first time, Decd. Mahendrakumar P. Desai was held as the owner in the appeal before the Gujarat Revenue Tribunal. Thereafter, it has been held upto Hon'ble Supreme Court that Decd. Mahendrakumar P. Desai and his heirs have the ownership right. Even after this, the possession of the acquisition has not been evicted by the respondent/State and Decd. Mahendrakumar P. Desai has been prevented from doing construction work. In such a situation, since the possession was kept by the State till the date of publication of the notification for land acquisition as per section 4, i.e. 09/02/2007 after 29/11/1991, the date of judgment in favour of Mahendrakumar P. Desai in the Appeal No. T.E.N.A. 36/90 before the Revenue Tribunal, the applicants are entitled for the additional interest/rent for that period as per the aforementioned judgments of the Hon'ble Supreme Court. Therefore, the reply to the Issue No.2 is affirmative. Thus, as the reply to the Issue No.1 to 3 is affirmative, the following final order is passed.
// Final Order // (1) The reference applications of the applicants vide L.A.R. No.37/2009, 35/2009 and 55/2009 are partly allowed.
(2) The respondent is ordered to consider the market value of Rs.26,048/-, in words Rs. Twenty Six Thousand and Forty Eight only/-, per squaremeter for the acquired land (area 122718 Sq.m.) of City Survey No.1-A/2, Tika Page 178 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined No.27/15-16-17 near the Lalbaug Fatak in Vadodara city. [The order is passed that, the amount shall be paid with interest at the rate of 9% for the first year from the date of notification under Section - 4, i.e. from09/02/2007 and at the rate of 15% per annum thereafter till the amount is deposited.] (Amendment has been done as per the order with Exhibit - 210.) The amount paid earlier to the applicants shall be deducted from the aforesaid amount.
(3) With respect to the said reference applications, as per Section - 23(1-A) of the Land Acquisition Act, the applicants are entitled to recover from the respondent an additional amount at the rate of 12% per annum apart from the amount determined for the period between 09/02/2007, the date of notification under section - 4 of the Land Acquisition Act and 11/12/2008, the date of award under Section -
11.(4) The solatium amount at the rate of 30% on the additional compensation shall be paid to all the applicants.
(5) Further, the applicants are also entitled to receive from the respondent the cost borne by the applicants in the respective reference applications.
(6) The applicants are entitled to get additional interest/rent at the rate of 15% per annum on the total amount from the date of possession by the respondent i.e. from 29/11/1991 to the date of notification under Section - 4 for the acquired land, i.e. 09/02/2007.
Page 179 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined (7) The distribution of the additional amount shall be done among the parties as per the order in the Reference No.16/2010 filed on behalf of the Stateon the basis of the decree passed in the Special Civil Suit No.516/2008.
(8) After calculating the admissible amount, its statement shall be kept with this order, which shall be considered as the part of the order. Further, the copy of this judgment shall be kept in all the cases.
(9) The award shall be drawn as per the order.
(10) The said order shall be kept in Land Reference Case No.37/2009."
7.6 On a perusal of the judgement and award of the Reference Court, it is borne out that while assessing the market value of the land in question, it had before it four sets of comparable instances for fixation of the price of the subject land. They were as under:
I. Exh.146 was the minutes of the meeting dated 17.04.2000 of the District Land Price Committee in respect of nearby land bearing survey no.553 and 554 admeasuring about 2141 sq.mtrs. and 4038 sq.mtrs.
respectively at Vadodara Kasba. It was in context of granting of the said lands on lease basis to welcome Page 180 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined group hotel. The price came to be determined at Rs.28,000/- per sq. mtr. The Reference Court did not take this instance into account for determining the price of the subject land as the minutes of the meeting of the District Land Price Committee was not confirmed by the State Land Valuation Committee.
II. At Exh. 147 was an instance where land bearing CPS Nos.12 and 13 admeasuring 6125.64 sq. mtr.
located in station area in the City of Vadodara, was granted on a lease basis for 30 years to the Corporation for traffic planning. The price of the land as per the minutes of the meeting dated 13.09.2006 came to be determined at Rs.40,000 per sq. mtr. For this purpose, what was considered was the sale price of Rs.10,038.80 per sq. mtr. Of one another comparable piece of land bearing CTS No.139 admeasuring 1992.27 sq. mtrs. as per its sale deed dated 25.01.2005. Thereafter, in accordance with various factors referred to in the government circular dated 23.09.2002 the price was determined at Rs.40,000/-.
Page 181 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined III. At Exh.148 was an instance of an auction of land bearing FP No.166 admeasuring 2200 sq. mtr. located at Vasana. In the auction held on 08.02.2007, the leasehold price of the land was fixed at 40,200 per sq. mtr. The lease-deed was 24.05.2007. The Trial Court did not accept the said price as the Town Planning Scheme was already implemented, wherein, after making the provisions for the main road, the final plot numbers were given, whereas, as per the reference court, the subject land was one single unit with a large area and the Trial Court believed that it cannot be expected that the whole land was on the main road.
IV. The Trial Court for the same reasons as Exh.158 did not accept the instance of the leasehold price of an auction held on 09.02.2007 of a final plot admeasuring 5556 sq. mtr. located at Akota whose leasehold price was fixed at Rs.45,500 per sq. mtr.
7.6 What is therefore evident is that of the four yardsticks available before the Trial Court to determine the price of the subject land vis-a-vis a comparable land, the Trial Court only Page 182 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined accepted Exh.147 which was a case where City Survey No.12 and 13 admeasuring 6125.64 sq. mtr. land located in the station area was taken into account for determining the price of the subject land.
7.7 The exercise undertaken by the learned Reference Court from the relevant paragraphs of the judgement, for determining the valuation rate of Rs.26048/- per sq. mtr. to be applied to the subject land was as under:
I. A sale deed dated 25.01.2005 in respect of land bearing City Survey No.139 admeasuring 1992.27 sq. mtrs. was available.
II. In order to determine the price of another nearby land in the City, bearing City Survey Nos.12 and 13 admeasuring 6125.64 sq. mtrs. for granting the same on the lease, the Town Planner in his valuation report dated 07.09.2006 applied the sale instance of Rs.10,038.80 per sq. mtr. of the sale deed dated 25.01.2005. The instance of Rs.10,038.80 was doubled to Rs.20,077.60 per sq. mtr. 15% escalation i.e. Rs.4927.38 was added for the Page 183 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined period from 25.01.2005 to 07.09.2006. This was done as per the circular dated 23.09.2002 sought to be produced by way of additional evidence. The figure of Rs.25,004.98 per sq. mtr. was arrived at. Though the sale instance made further additions of 25% each for being on the main road and on the frontage and 10% locational advantage to arrive at a figure of Rs.43,000/-, the Trial Court only took Rs.25004.98 as a base price admeasuring 6125.64 sq. mtrs. and applied the price of Rs.25004.98 as the base price.
III. By adding an escalation amount @ 10% for five months from 13.09.2006 to 09.02.2007, the Trial Court arrived at a figure of Rs.26048 per square meters as the enhanced compensation for the subject land. This methodology adopted by the Reference Court is the bone of contention as far as the parties are concerned for arriving at the market value of the subject land.
8. Reasoning assigned by the Reference Court by relying on the document Ex. 147 dated 13.09.2006 indicates that the Reference Court had deducted an amount at the rate of 25% Page 184 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of the wide frontage of the area. A further amount at the rate of 25% of advantage of location was deducted to arrive at a figure of Rs.26,048/-. Even if we were to accept the argument of the State Government that the circular dated 23.09.2002 was not applicable then we must follow the decision of the Division Bench of this court in the case of Amaji Mohanji Thakore (supra). Paras 21, 25 and 28 of the decision in the said case read as under:
"21.In any welfare State, Government cannot have a dual stand for the same subject. If the land of a citizen is to be acquired, Government has to pay the market price of the land as per the provisions of the Act. Government cannot contend that it shall not pay the market price, since as per the Act it is obligatory on the part of the Government or the acquiring Body to pay the market price as per the provisions of the Act. Similarly when the Government is to allot the land to the citizen or any organization, may be for private or public purpose, it has to be the market price, unless the allotment is for a specific public purpose or by way of a separate class, where a specific concession in the market price is made permissible. In any case, where the reduction of the market price for a specific rate is made permissible, such would be lesser than the market price. These cases where the concession or reduction is to be made, would not exceed the market price. Therefore, it is clear that unless the land is allotted at a concessional price, in normal circumstances when the Government is to allot the land to its citizen or to Page 185 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined any body, the price would be the market prices to be fixed by the competent authority by the Government. Hence, we cannot countenance the stand on the part of the learned Addl. Government Pleader that if the Government is to allot the land to any citizen or a body, higher price shall be fixed as the market price, whereas if the Government is to acquire the land belonging to any citizen or any organization, it shall pay lesser price of the land. To say in other words, if the Government is to allot 'A' land belonging to it to any citizen or to any organization, it will charge 'B' price, but if the very 'A' land is belonging to the citizen and the Government is to acquire under the Land Acquisition Act, the Government shall pay price lesser than the 'B' price to the citizen or the organization. If such is permitted, in our view, it would result into discriminatory and arbitrary approach on the part of the State Government, which cannot be countenanced by the constitutional Court in a welfare State. As observed earlier, if the very 'A' land is acquired belonging to the citizen by the Government, the Government would be required to pay the price, in any case, not less than 'B' price and to be more specific, Government would be required to pay the price, in any case, not lesser than the price fixed by it for the purpose of allotment of the land to any citizen or organization, of course, subject to the change in the nature and character of the land, if any.
22.Even if the matter is to be examined in light of the aspect as to whether the price determined by the competent authority of the Government for allotment of the government land to any citizen or organization can be said as in exercise of statutory power or authority of the statute or not, it appears Page 186 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined that the provisions of the Land Revenue Code are clear. Section 62 under the Bombay land Revenue Code, 1879 (hereinafter referred to as 'Code') reads as under :-
"Section 62. Unoccupied land may be granted on conditions.- It shall be lawful for the Collector subject to such rules as may from time to time be made by the State Government in this behalf, to require the payment of a price for unalienated land or to sell the same by auction and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under section 60. The price (if any) paid for such land shall include the price of the Government right to all trees not specially reserved under the provisions of section 40 and shall be recoverable as an arrear of land revenue."
25.In the present matters, we are not required to examine the aspect of exercise of the powers by the Collector without charge or by private negotiation for disposal of the land for agricultural or non- agricultural purpose, therefore, no discussion is required on the said aspect, but the in the present matter, the aspect of power with the Collector for disposal of the land upon the payment of the price to be fixed by him (other than concessional charge) is to be taken into consideration. If the collector has to allot the land as per Section 62 read with Rule 37 or Rule 42 of the Rules, the same shall be at the price to be fixed by him. He has to determine the price of such land before taking decision for allotment of the land. In the case of Ghunshabhai Govindbhai Pancholi v State of Gujarat and Anr., reported in 1995(1) GLH, 792, the question arose Page 187 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined for consideration about the fixation of the price by the Collector under Section 62 of the code read with Rule 37 of the rules and this Court observed that the Collector has the authority to fix the price to be paid for the land which he grants to a person for agricultural purpose and such price has to be fair, reasonable and just and should not be arbitrary or whimsical and he has also to take into consideration the submissions or the material, which may be submitted by the allottee or the person, who is to be allotted the land. Therefore, it is not possible to accept the contention of the learned Additional Government Pleader that when a price is fixed by the Collector for allotment of the land to any citizen or organization under the Bombay Land Revenue Code read with the Rules, such action for fixation of the price is not in exercise of the statutory powers. Be it noted that the Collector has to exercise the power subject to general orders of the State Government for the mode and manner of fixation of the valuation and the Collector, therefore, while fixing the market price has to take into consideration the view of an expert body, which is the Valuation Committee and thereafter to take final decision. Therefore, it is not a matter where the exercise of the power by the Collector is not in discharge of the statutory function for fixation of the market price. At this stage, it may also be recorded that even under the provisions of Bombay Tenancy and Agricultural Lands Act, 1948, more particularly Section 43 of the said Act, while granting permission to transfer the land, which is held by the agriculturist, who was originally allotted the land as agricultural tenant under the said Act, has to exercise the power for grant of permission upon payment of the premium. At the time when the premium is to be fixed the marked price of the land is to be Page 188 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined ascertained by the Valuation Committee of the Government and the opinion is to be considered by the Collector of the valuation made. Therefore, it is not possible for us to accept the contention of the learned Addl. Government Pleader that the valuation made by the Valuation Committee of the Government of the nearby land for the purpose of allotment of the land to any citizen by the Collector cannot be taken into consideration by the Reference Court. Under these circumstances, the contention of the learned Addl. Government Pleader deserves to be rejected, therefore, rejected."
8.1 The Division Bench accepted the standard or a yardstick of an instance of a piece of land where the valuation made by the valuation committee of the government for the fixation of the price for allotment of land at the very village by way of a sale instance or price fixed by the government should be accepted. It is not open for the State Government to contend that for the purpose of giving the land to the citizens owned by the State Government, formula and procedure and principle as laid down in the circular dated 23.09.2002 would apply and while taking the land of the citizens under compulsory acquisition the valuation method as prescribed by the State Government in its circular dated 23.09.2002 will not apply. The law cited by the State in the case of Dyagala Page 189 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Devamma (supra) cannot be disputed so also the decisions cited at the bar by the State on the question of deductions to be made. Paras 7 to 22 of Dayagala Devamma (supra) read as under:
"7. By the impugned judgment, the High Court dismissed the appeal filed by the appellant- Railways and partly allowed the cross objections filed by the landowners and enhanced the compensation to Rs.15,97,200/ per acre. The High Court, upheld the market value determined by the Reference Court i.e. Rs.21,29,600/ per acre but reduced the deduction towards developmental charges from 50% to 25% and accordingly worked out the compensation "at the rate of Rs.15,97,200/ per acre". It is against this judgment, the appellant Railways felt aggrieved and filed the present appeals by way of special leave before this Court.
8. Heard Mr. Vikramjit Banerjee, learned Additional Solicitor General for the appellantUOI and Mr. B. Adinarayana Rao, learned senior counsel for the respondents.
9. Mr. Vikramjit Banerjee, learned Additional Solicitor General appearing for the appellant while assailing the legality and correctness of the impugned judgment essentially made two submissions. In the first place, learned ASG contended that the High Court erred in further enhancing the compensation at Rs.15,97,200/ per acre. According to him the compensation determined by the Reference Court payable at the rate of Rs.10,64,800/ per acre was just, legal Page 190 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined and proper and, therefore, it did not call for any further enhancement.
10. In the second place, learned ASG urged that having placed reliance on exemplar Sale Deed (Ex P18) for determining the market value, the Reference Court rightly deducted 50% towards development charges, whereas the High Court erred in deducting 25% towards developmental charges.
11. According to learned ASG, the High Court ought to have appreciated that there were three distinguishing factors appearing from the exemplar sale deed (Ex.P18). Due to these three factors, deduction of 50% towards developmental charges from the market value was called for. These factors are, First, Sale Deed (Ex.P18) was for a very small piece of land (19 Guntas=1/2 acre); Second, the land which was the subject matter of ExP18 had a peculiar site because it was situated facing two roads one on the east side and other on the north side; and Third, it was a developed land.
12. It was, therefore, urged that so far as the land in question is concerned, the same did not have these factors and, therefore, the Reference Court rightly considered it proper to deduct 50% towards developmental charges from the market value which was worked out on the basis of Sale Deed (Ex.P18). It was urged that the High Court without assigning any reasons much less cogent reasons erred in reducing developmental charges from 50% to 25% from the market value. Learned ASG, therefore, prayed for restoration of the award of the Reference Court in place of impugned judgment of the High Court.Page 191 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
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13. Per contra, learned senior counsel for the respondents (landowners) supported the impugned judgment and contended that it does not call for any interference and hence the appeals deserve to be dismissed.
14. The question arises for consideration in these appeals is whether the High Court was justified in deducting 25% towards developmental charges from the market value of the land in question against 50% deduction made by the Reference Court. In other words, having regard to the facts and circumstances of the case, whether the Reference Court was justified in deducting 50% from the market value of the land or whether the High Court was justified in deducting 25%.
15. Before we examine the facts of this case, it is necessary to take note of general principles of law on the subject in question which are laid down by this Court in several cases and some of which were also cited at the Bar by the learned counsel for the parties. Indeed, if we may say so, law on the several issues urged herein by the learned counsel for the parties is already settled by this Court and what has varied in its application depends on the facts of each case.
16. In Chimanlal Hargovinddas vs Special Land Acquisition Officer, Poona & Anr. (1988) 3 SCC 751, this Court dealt with the question as to how the Court should determine the valuation of the lands under acquisition and what broad principle of law relating to acquisition of land under the Act should be kept in consideration to determine the proper market value of the acquired land.Page 192 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
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17. In Para 4 of the judgment, this Court laid down as many as 17 principles, which are reproduced below for perusal:
"(1) to (4)........................................
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of notifications under Sections 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisition of land.) (9) Even postnotification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.Page 193 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined (10) The most comparable instances out of the genuine instances have to be identified on the following considerations:
(i) proximity from time angle,
(ii) proximity from situation angle. (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis àvis land under acquisition by placing the two in juxtaposition.
(12) A balancesheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
Plus factors Minus factors
1. smallness of 1. largeness of area size
2. proximity to a 2. situation in the Page 194 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined road interior at a distance from the road
3. frontage on a 3. narrow strip of land road with very small frontage compared to depth
4. nearness to 4. lower level developed area requiring the depressed portion to be filled up
5. regular shape 5. remoteness from developed locality
6. level visàvis 6. some special land under acquisition disadvantageous factor which would deter a purchaser
7. special value for an owner of an adjoining property to whom it may have some very special advantage (15) The evaluation of these factors of course depends on the facts of each case.
There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or Page 195 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense."
18. These principles are invariably kept in mind by the Courts while determining the market value of the acquired lands (also see Union of India vs. Raj Kumar Baghal Singh)
19. In addition to these principles, this Court in several cases have laid down that Page 196 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined while determining the true market value of the acquired land especially when the acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. It has also been consistently held that at what percentage the deduction should be made varies from 10% to 86% and, therefore, the deduction should be made keeping in mind the nature of the land, area under acquisition, whether the land is developed or not and, if so, to what extent, the purpose of acquisition, etc. It has also been held that while determining the market value of the large chunk of land, the value of smaller pieces of land can be taken into consideration after making proper deduction in the value of lands especially when sale deeds of larger parcel of land are not available. This Court has also laid down that the Court should also take into consideration the potentiality of the acquired land apart from other relevant considerations. This Court has also recognized that the Courts can always apply reasonable amount of guesswork to balance the equities in order to fix a just and fair market value in terms of parameters specified under Section 23 of the Act. (See Trishala Jain & Anr. Vs. State of Uttaranchal & Anr., and Vithal Rao & Anr. Vs. Special Land Acquisition Officer)
20. Keeping in mind the aforementioned principles, when we take note of the facts of the case at hand, we find that firstly, the land acquired in question is a large chunk of land (101 acres approx.); Secondly, it is not fully developed; Thirdly, the respondents Page 197 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined (landowners) have not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; Fourthly, exemplar relied on by the respondents, especially Ex.P18 pertains to very small pieces of land (19 guntas); Fifthly, the three distinguishing features noticed in the land in sale deed (Ex.P18) are not present in the acquired land.
21. It was for the aforementioned reasons, in our opinion, the Reference Court was justified in making deduction of 50% towards developmental charges from the market value. The High Court, in our opinion, did not assign any good reason as to why and on what basis, it considered proper to make deduction towards developmental charges at the rate of 25% in place of 50%.
22. This Court has held in Trishala Jain's case (supra) that it depends upon the facts of each case to decide for determination of the market value of the land as to what percentage should be adopted for deduction. In our opinion, the reasons mentioned above were rightly made basis by the Reference Court to support the deduction of 50%."
8.2 The Apex Court while laying down these principles and setting out illustrative and not exhaustive factors observed that these were general guidelines to be applied with understanding informed with common sense. The reasonings of the Reference Court as evident from reading paragraph no.
23 of the order/award indicate that these very guiding Page 198 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined principles have been taken care of by arriving at a figure of Rs.26048/- and not accepting the entire figure of Rs.43,000/-
of the land instance relied upon. The Reference Court has considered minus factor of the largeness of the land, narrowness, some discount of it being at an interior etc and made the discounts or deductions necessary. Reading of the decision in the case of Rameshbhai Jivanbhai Patel (supra), the Hon'ble Supreme Court has held that increase in land prices depends on four factors namely situation of the land, nature of development in the surrounding area, availability of land for development and demand for land in the area. An increase of 10% to 15% in the market value in urban areas is an accepted principle.
8.3 At this stage, we may also profitably refer to the decision of the Apex Court in the case of Kapil Mehra (supra). While reiterating the principles of determining a reasonable market value which the acquired lands are capable of fetching, the Apex Court has accepted the fact that where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood or about the date of notification under section 4(1), other sale instances as well as other evidences Page 199 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined have to be considered. Reading the award of the Land Reference Court, which is under challenge before us, we find that while considering the report of the valuation committee in context of the lease hold price for determination of the market value of the subject land, the reference court did make suitable adjustments having regard to various positive and negative factors vis-a-vis the land under acquisition and the comparable instance by placing the two in juxtaposition.
Though the reference court had only taken ex. 147 into consideration, which had an instance of price fixation at Rs.43,000/-, this court has before it exs. 146, 148 and 149 too.
The land size of ex. 147 was 6125.64 sq. mtrs. At ex. 146, the land size was 21414 sq. mtrs and 4038 sq.mtrs. At Ex. 148, land size was 2200 sq. mtrs whereas the land size of ex. 149 was 5556 sq. mtrs. If the circular dated 23.09.2002 is read, any area exceeding 1500 sq. mtrs is classified to be a large tract of land. Considering the decision in the case of Kapil Mehra (supra), particularly para 18-20, thereof would indicate that for ascertaining the market value of the acquired land, lease hold lands are the comparable instances and in context of the subject land if these several lease hold instances are seen, the prices have a marginal variation. The Page 200 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined average of the instances would be Rs.42,000/- and if minus factors of the largeness of the land is considered for comparison, appropriate deduction is made to work out the market value at Rs.26,048/- per sq. mtr. The objection of the State that a lease hold instance cannot be used as a comparable instance is negatived. True, that in auction sales the element of competition makes them unsafe guides for determining the market value and therefore the reference court has not taken into consideration the documentary evidence of the auction sales at Exs. 148 and 149.
8.4 When we consider the average price arrived at by the Reference Court at Rs.26,048/-, the record of the land acquisition proceedings indicate that the jantri value was Rs.63000/- the true value was Rs.20,000/- and the value assessed safely could be Rs.10,000/- per sq. mtr. Therefore, to award just Rs.1914/- per sq. mtr. was apparently an error.
9. On the issue of deductions we find that the deductions have been made to arrive at a lower market value of the subject land viz-a-viz the price governing the land at Ex. 147.
The stand of the state is that appropriate deductions for or Page 201 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined towards development of the land by providing enough space for roads etc. are not made and the deduction varies from 25% to 75%. Relevant paragraphs in the decisions relied upon are cited which are as under:
(a) In case of Land Acquisition Officer vs. L. Kamalamma (SMT) Dead by LRS and Others, reported in (1998) 2 SCC 385, it was observed as under:
"6. ... Further when no sales of comparable land was available where large chunks of land had been sold, even land transactions in respect of smaller extent of land could be taken note of as indicating the price that it may fetch in respect of large tracts of land by making appropriate deductions such as for development of the land by providing enough space for roads, sewers, drains, expenses involved in formation of a lay out, lump sum payment as also the waiting period required for selling the sites that would be formed." (Emphasis supplied).
(b) In case of Lal Chand vs. Union of India and Another, reported in (2009) 15 SCC 769, it was held as under:
"13. The percentage of 'deduction for development' to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price Page 202 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the lay out in which the exemplar plots are situated."
"15. The Development Authority will also incur considerable expenditure for development of undeveloped land into a developed layout, which includes the cost of levelling the land, cost of providing roads, underground drainage and sewage facilities, laying waterlines, electricity lines and developing parks and civil amenities, which would be about 35% of the value of the developed plot. The two factors taken together would be the `deduction for development' and can account for as much as 75% of the cost of the developed plot."
(Emphasis supplied)
(c) Further reliance is placed on the judgment of the Hon'ble Supreme Court in case of Union of India vs. Dyagala Devamma, reported in (2018) 8 SCC 485, wherein, it was observed as under:
"19. In addition to these principles, this Court, in several cases have laid down that while determining the true market value of the acquired land especially when the acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. ... ... ... It has also been held that while determining the market value of large chunk of land, the value of smaller pieces of land can be taken into consideration after making proper deduction in the value of lands especially when sale deed Page 203 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of large parcel of land are not available.... ... " (Emphasis supplied).
"21. It was for the aforementioned reasons, in our opinion, the Reference Couurt was justified in making deduction of 50% towards developmental charges from the market value. The High Court, in our opinion, did not assign any good reason as to why and on what basis, it considered proper to make deduction towards developmental charges @ 25% in place of 50%. " (Emphasis supplied).
"22. This Court has held in Trishala Jain case that it depends upon the facts of each case to decide for determination of the market value of the land as to what percentage should be adopted for deduction. In our opinion, the reasons mentioned above were rightly made basis by the Reference Court to support the deduction of 50%." (Emphasis supplied).
(d) In case of Union of India vs Premlata reported in 2022 7 SCC 745, the Hon'ble Supreme Court in paras 17 and 18, observed as under:
"17. ... As such, the High Court has not assigned any good reason as to why and on what basis, it considered proper to make deduction towards development charges @ 33.33% (1/3rd deduction). The High Courrt has not at all considered the relevant factors while making an appropriate deduction towards development charges."
(Emphasis supplied).
"18. Therefore, considering the relevant factors on the appropriate deduction towards Page 204 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined development charges as per the law laid down by this Court in the aforesaid decisions ... we find that firstly, the land acquired in question is a large extent of land (45 ha. 89 R); secondly it was an agricultural land not fully developed; thirdly, the land owner having not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; and fourthly, exemplars relied upon by the landowner, especially Exts. 91 to 93 pertains to very small plots / parcels of land and that too, in respect of small plots which were developed and converted to non-
agricultural use and the distinguishing features noticed in the land in sale deeds, Ests. 91 to 93 are not present in the acquired land, we are of the firm view that the deduction towards development charges at 1/3rd as deduced by the High Court can be said to be on a lower side. Considering the aforesaid facts and circumstances and the relevant factors, we are of the opinion that if 40% deduction is ordered to be made towards development charges, it can be said to be an appropriate deduction towards development charges in the facts and circumstances of the case. (Emphasis supplied).
(e) Also in case of Mala and Others vs. State of Punjab and Others, reported in 2023 SCC OnLine SC 1005, it was held as under:
"11. The next submission made by Mr. Patwalia with regard to the one third cut imposed by the High Court has also hardly any force. The High Court after determining the market value of the lands acquired at Rs.3000/- per marla, has deducted one third amount therefrom towards the Page 205 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined development charges taking into consideration the settled legal position. It is well settled position of law that while determining the deduction for development charges, the courts should keep in mind the nature of land, area under acquisition, whether the land is developed or not, if developed to what extent, the purpose of acquisition etc. Though, it is true that while determining the market value of large chunk of land, the value of smaller pieces of land could be taken into consideration, however, after making appropriate deduction in the value of lands or setting apart land required for carving out roads, leaving open spaces, plotting out smaller plots etc. The percentage of deduction or the extent of area required to be set apart has to be assessed by the courts having regard to the size, shape, situation, user etc. of the lands acquired. It is essentially a kind of guess work the courts are expected to undertake." (Emphasis supplied).
10. In the case of Sajan vs. State of Maharashtra and others [(2020) 14 SCC 139], it has been held that the deduction in large portion of land should be done taking into consideration the deduction towards development and deduction has to be carried out on the basis of the purpose of acquisition for which the land is acquired. When we discuss the issue of possession it is clear that the land is acquired for police parade ground and there already is development on Page 206 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined land like existence of equipment etc and not that should suggest that development is needed therefore there is no reason for deduction. A maximum deduction of 15% to 20% is required and as the working figure shows from the compensation so awarded is that the compensation awarded by the Reference Court is less compared to the available market value.
10.1 It will be apt to reproduce paragraphs no. 29 to 40 of the decision in the case of Kapil Mehra (supra) which deals with the yardstick of deduction towards development.
"29. The High Court has deducted 40% from the average price to equalize the factor of the market value of a small plot of land as compared to large area of land acquired and the figure works out to Rs.22,460.25. High Court has also deducted one third towards development cost and determined the market value of the acquired land at Rs.14,974/- per sq. yard.
30. Appellants contend that the rate of deduction as applied by the High Court was highly excessive as the acquired lands are situated in the area already developed and have all potential for development. It is submitted that the Court repeatedly held that in assessing the compensation payable in respect of lands which had the potential for housing or commercial purposes, normally 20% of the assessed value of the land is deducted, Page 207 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined depending on the nature of the land, its location, extent of expenditure involved for development and the land required for roads and other civic amenities etc. and while so, thumb rule of 331/3% or one third cut on development cost cannot be used in a situation when the exact development cost has been established through evidence. The appellants rely upon the documents issued by Executive Engineer (Annexure P-5) to contend that the cost of development of Vasant Kunj is only Rs.330/- per Sq. Yard.
31. Mr. Amarendra Sharan, learned Senior Counsel appearing for the respondents contended that in forming a lay out by Delhi Development Authority or any statutory authority, 40% of the land area is to be deducted for formation of roads, drains, parks and other civic amenities and further 35% is to be deducted towards development cost for forming the lay out, levelling the road, construction of drainage and erection of electricity lines etc. It was submitted that deduction for development on both the components worked out to 70-75% and the High Court was not justified in making standard deduction of one third. It was further submitted that if a suitable deduction is made, the compensation awarded by the High Court seems to be excessive and prayer for suitable reduction of the award is made.
32. While making one third deduction towards development cost, the learned single Judge did not keep in view the two essential components of deduction for development. Deduction for development consists of two components:- firstly, appropriate deduction to be made towards the area required to be utilized for roads, drains and common facilities like parks etc.; secondly, further deduction to be made towards the cost of Page 208 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined development, that is cost of levelling the land, cost of laying roads and drains, erection of electrical poles and water lines etc. For deduction of development towards land and development charges, the nature of development, conditions and nature of the land, the land required to be set apart under the Building Rules for roads, sewerage, electricity, parks, water supply etc. and other relevant circumstances involved are required to be considered.
33. In Haryana State Agricultural Market Board And Anr. vs. Krishan Kumar And Ors., (2011) 15 SCC 297, it was held as under:
"10. It is now well settled that if the value of small developed plots should be the basis, appropriate deductions will have to be made therefrom towards the area to be used for roads, drains, and common facilities like park, open space, etc. Thereafter, further deduction will have to be made towards the cost of development, that is, the cost of leveling the land, cost of laying roads and drains, and the cost of drawing electrical, water and sewer lines."
34. Consistent view taken by this Court is that one third deduction is made towards the area to be used for roads, drains, and other facilities, subject to certain variations depending upon its nature, location, extent and development around the area. Further, appropriate deduction needs to be made for development cost, laying roads, erection of electricity lines depending upon the location of the acquired land and the development that has taken place around the area.
35. Reiterating the rule of one third deduction towards development, in Sabhia Mohammed Yusuf Page 209 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Abdul Hamid Mulla (Dead) by Lrs. and Ors. vs. Special Land Acquisition Officer and Ors., (2012) 7 SCC 595, this Court in paragraph 19 held as under:-
"19. In fixing the market value of the acquired land, which is undeveloped or underdeveloped, the courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land in acquired. In Kasturi vs. State of Haryana (2003) 1 SCC 354) the Court held:
(SCC pp. 359-60, para 7) "7... It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd 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 road and other civic amenities to develop the land so as to make the plots for 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 Page 210 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined area also varies. A claimant who claims 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 the area adjoining his land is a 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 the character or a developed area. In 84 acres of land acquired even if one portion on one sides 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, it 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 1/3rd and in some cases less than 1/3rd. 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 Page 211 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 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." (emphasis supplied) The rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P. ((2003)10 SCC 525, V. Hanumantha Reddy v.
Land Acquisition Officer, (2003) 12 SCC 642, H.P. Housing Board v. Bharat S. Negi (2004) 2 SCC 184 and Kiran Tandon v. Allahabad Development Authority. (2004)10 SCC 745"
36. While determining the market value of the acquired land, normally one third deduction i.e. 331/3% towards development charges is allowed. One third deduction towards development was allowed in Special Tehsildar, L.A. Vishakapatnam vs. Smt.A. Mangala Gowri, (1991) 4 SCC 218; Gulzara Singh & Ors. vs. State of Punjab & Ors., (1993) 4 SCC 245; Santosh Kumari & Ors. vs. State of Haryana, (1996) 10 SCC 631; Revenue Divisional Officer-cum-LAO vs. Shaik Azam Saheb etc., (2009) 4 SCC 395; A.P. Housing Board vs. K. Manohar Reddy, (2010)12 SCC 707; Ashrafi & Ors. vs. State of Haryana & Ors., (2013) 5 SCC 527 and Kashmir Singh vs. State of Haryana & Ors., (2014) 2 SCC 165.
37. Depending on nature and location of the acquired land, extent of land required to be set apart and expenses involved for development, 30% to 50% deduction towards development was allowed in Haryana State Agricultural Market Board and Anr. vs. Krishan Kumar and Ors. (2011) 15 SCC 297; Deputy Director Land Acquisition vs. Page 212 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Malla Atchinaidua And Ors. AIR 2007 SC 740; Mummidi Apparao (Dead by LR) vs. Nagarjuna Fertilizers & Chemical Ltd., AIR 2009 SC 1506; and Lal Chand vs. Union of India and Anr. (2009) 15 SCC 769.
38. In few other cases, deduction of more than 50% was upheld. In the facts and circumstances of the case in Basavva (Smt.) And Ors. v. Spl. Land Acquisition Officer And Ors., (1996) 9 SCC 640, this Court upheld the deduction of 65%. In Kanta Devi & Ors. vs. State of Haryana And Anr., (2008) 15 SCC 201, deduction of 60% towards development charges was held to be legal. This Court in Subh Ram & Ors. vs. State of Haryana & Anr., (2010) 1 SCC 444, held that deduction of 67% amount was not improper. Similarly, in Chandrasekhar (dead) by L.Rs. and Ors. vs. LAO & Anr., (2012) 1 SCC 390, deduction of 70% was upheld.
39. We have referred to various decisions of this Court on deduction towards development to stress upon the point that deduction towards development depends upon the nature and location of the acquired land. The deduction includes components of land required to be set apart under the building rules for roads, sewage, electricity, parks and other common facilities and also deduction towards development charges like laying of roads, construction of sewerage.
40.Rule of one third deduction towards development appears to be the general rule. But so far as Delhi Development Authority is concerned, or similar statutory authorities, where well planned layouts are put in place, larger land area may be utilized for forming layout, roads, parks and other common amenities. Percentage of deduction for development of land to be made in DDA or similar Page 213 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined statutory authorities with reference to various types of layout was succinctly considered by this Court in Lal Chand vs. Union of India & Anr. (2009) 15 SCC 769 and observing that the deduction towards the development range from 20% to 75% of the price of the plots, in paras 13 to 22, this Court held as under:-
"13. The percentage of "deduction for development" to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated.
14. The "deduction for development" consists of two components. The first is with reference to the area required to be utilized for developmental works and the second is the cost of the development works. For example, if a residential layout is formed by DDA or similar statutory authority, it may utilize around 40% of the land area in the layout, for roads, drains, parks, playgrounds and civic amenities (community facilities), etc.
15. The development authority will also incur considerable expenditure for development of undeveloped land into a developed layout, which includes the cost of leveling the land, cost of providing roads, underground drainage and sewage facilities, laying water lines, electricity lines and developing parks ands civil amenities, which would be about 35% of the value of the developed plot. The two factors taken together would be the Page 214 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined "deduction for development" and can account for as much as 75% of the cost of the developed plot.
16. On the other hand, if the residential plot is in an unauthorized private residential layout, the percentage of "deduction for development" may be far less. This is because in an unauthorized layout, usually no land will be set apart for parks, playgrounds and community facilities. Even if any land is set apart, it is likely to be minimal. The roads and drains will also be narrower, just adequate for movement of vehicles. The amount spent on development work would also be comparatively less and minimal. Thus the deduction on account of the two factors in respect of plots in unauthorized layouts, would be only about 20% plus 20% in all 40% as against 75% in regard to DDA plots.
17. The "deduction for development" with reference to prices of plots in authorized private residential layouts may range between 50% to 65% depending upon the standards and quality of the layout.
18. The position with reference to industrial layouts will be different. As the industrial plots will be large (say of the size of one or two acres or more as contrasted with the size of residential plots measuring 100 sq. m to 200 sq m), and as there will be very limited civic amenities and no playgrounds, the area to be set apart for development (for roads, parks, playgrounds and civic amenities) will be far less; and the cost to be incurred for development will also be marginally less, with the result the deduction to be made from the cost of an industrial plot may range only Page 215 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined between 45% to 55% as contrasted from 65% to 75% for residential plots.
19. If the acquired land is in a semi-developed urban area, and not an undeveloped rural area, then the deduction for development may be as much less, that is, as little as 25% to 40%, as some basic infrastructure will already be available. (Note: The percentages mentioned above are tentative standards and subject to proof to the contrary.
20. Therefore the deduction for the "development factor" to be made with reference to the price of a small plot in a developed layout, to arrive at the cost of undeveloped land, will be far more than the deduction with reference to the price of a small plot in an unauthorized private layout or an industrial layout. It is also well known that the development cost incurred by statutory agencies is much higher than the cost incurred by private developers, having regard to higher overheads and expenditure.
21. Even among the layouts formed by DDA, the percentage of land utilized for roads, civic amenities, parks and playgrounds may vary with reference to the nature of layout- whether it is residential , residential- cum- commercial or industrial; and even among residential layouts, the percentage will differ having regard to the size of the plots, width of the roads, extent of community facilities, parks and playgrounds provided.
22. Some of the layouts formed by the statutory development authorities may have large areas earmarked for water/sewage treatment plants, water tanks, electrical Page 216 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined substations, etc. in addition to the usual areas earmarked for roads, drains, parks playgrounds and community/civic amenities. The purpose of the aforesaid examples is only to show that the "deduction for development"
factor is a variable percentage and the range of percentage itself being very wide from 20% to 75%." Lal Chand's case deals with acquisition of lands by DDA under the Rohini Residential Housing Scheme where 40% deduction was made towards the land area to be utilized for laying down of roads, drains etc. Further deduction of 35% of the value of the developed plot towards cost of levelling the land, cost of providing roads, underground drainage, laying down water lines, electricity lines was made."
11. The argument of the learned Advocate General that the Reference Court has ignored the factors pertaining to the characteristics of the land, namely, a large tract of land admeasuring 1,22,718 sq.mtrs, being in a shape of strip, having more depth rather than frontage and low-lying pale into insignificance where the documentary as well as oral evidence which are set out to consider the question of possession indicate factors and amenities which exist on site such as walking tract, climbing poles, football ground and sports facilities etc. Page 217 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 11.1 In fact, the Reference Court, if at all, not finding fault with the award, has erred on the safer side in not blindly following the yardstick of the comparable instance but discounting and then adding for passage of time. What is, therefore, evident from the analysis of the exercise undertaken by the Reference Court for determining the value of Rs.26,048/- per sq.mtrs, which we have in the earlier part of this judgement explained does indicate that the parameters set out for determination of the market value after deductions appropriate considering the nature of land, its location etc., have been made and the base price of Rs.25,004.98 and escalation amount for five months i.e. from 13.09.2006 to 09.02.2007 for arriving at a figure of Rs.26,048/- per sq.mtrs is rightly considered.
12. We may, at this stage also consider the cross objections filed by the claimants who had demanded Rs.65,000/- per sq.mtrs and have lodged their objections. They are, therefore, entitled to an additional amount of Rs.38,952/-. While discussing the concept of average pricing in juxtaposition with comparable instances of all 4 lands in question, what is evident is that even while dealing in auction-sale comparable Page 218 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined instances, the property is to fetch a maximum average of Rs.43,000/- which is lower than the demand. Moreover, the base average taking into all land deals comes to Rs.40,000/-
and considering the limitation of location etc., and after appropriate deductions, the figure arrived at of Rs.26,048/-
cannot be faulted. The claim of Rs.65,000/- as compensation or the claim for therefore an additional amount of Rs.38,952/-
is grossly exaggerated.
13. Whether the land Reference Court could have awarded interest from 29.11.1991 prior to the issuance of the Notification u/s. 4 of the Act, the other incidental question directly connected would be whether the Reference Court in absence of "possession" committed an error in taking the GRT Judgement date as the base for awarding interest for the period commencing from 29.11.1991. Could the Reference Court arrive at a finding that the claimants were deprived of their physical possession and the relevant date of 29.11.1991 was apt. Before we decide these issues, a brief revisit of the history of litigation of the claimants is inevitable.
13.1 The subject land originally belonged to Late Shri Page 219 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Mahendrakumar Purshottambhai Desai. The new survey numbers were Survey No. 371 and 372. From the impugned judgement, what is culled out is that the ancestors of late Mahendrabhai Desai were holding 138 vighas 19 vasa of land, out of which, the following three parcels of land were acquired in the following proceedings:
1. Land Acquisition case proceedings No.4196 for 23 acres and 12 gunthas.
2. Land Acquisition proceedings Case No. 4142 for 21 acres and 39 gunthas.
3. Land Acquisition proceedings Case No. 4153 for 3 acres and 36 gunthas.
13.2 So, in all 49 acres and 7 gunthas or 85 vighas and 1 vasa was acquired by government and the subject land, balance, according to the claimants is in possession of the government too.
13.3 The chronology of dates and history would indicate the litigation history.
23.09.1960 : One Jayant Patel made an application to Page 220 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the Collector, seeking the subject land for the purpose of construction and development of hotel.
26.11.1962 : Late Mahendrabhai Desai on becoming aware of this made an application to the Collector by filing objections. The claim was adjudicated under Sec.37(2) of the Bombay Land Revenue Code.
Reading of Sec.37(2) indicates that the adjudication of the claim is with regard to property or any right by a person against government. In other words, the dispute of possession or claim was against the government since 1960.
19.02.1963 : The claim was rejected by the City Survey Officer informing the claimants of the land being in possesion of government.
12.08.1963 : The Collector assigned the inquiry to Mamlatdar, Vadodara, which was then on 17.02.1964, transferred to the Assistant Collector, Vadodara.
01.06.1964 : Order of Collector holding that Page 221 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Mahendrabhai was the owner.
09.09.1964 : On the order being taken in revision, the order dated 01.06.1964 was set aside and the proceedings were remanded to the Assistant Collector.
30.11.1966 : In remand proceedings, it was held that Mahendrabhai could not prove his ownership.
09.08.1968 : When carried in Appeal, the Collector dismissed the Appeal.
11.07.1969 : The GRT on a challenge remanded the matter to be considered afresh.
07.04.1980 : On remand, the Deputy Collector, Vadodara, held that the subject land was of the ownership of State of Gujarat.
14.05.1983 : Appeal of Mahendrabhai was rejected.
29.11.1991 : The GRT allowed the appeal of the Page 222 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined claimant Mahendrabhai and held that the subject land was in possession and occupation and ownership of Shri Mahendrabhai Desai.
13.4 In context of this, the State, through the Advocate General, vehemently submitted by placing reliance on this judgement of the Tribunal, pressed into service by way of additional evidence that the possession was with the claimant and therefore, award of interest / rent / damages prior to the issuance of Sec.4 notification was clearly erroneous.
However, this assertion solely based on the observation of the order of GRT dated 29.11.1991 has to be interpreted by considering the surrounding factors which would help us to consider and decide whether the Reference Court is right in granting interest at the rate of 15% from 29.11.1991 i.e. prior to notification under Sec.4 of the Act.
13.5 Apart from the litigation on the revenue side on the issue of legal possession, after the order of the Gujarat Revenue Tribunal when Mahendrabhai obtained permission to develop the land, he was prevented to enter into the land. This prompted him to file a Regular Civil Suit No. 1131 of 1992 Page 223 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined before the Civil Court, Vadodara, against the SRP seeking an injunction not to restrain him from carrying out any construction activity on the said land. Interim injunction was granted. Aggrieved by the injunction, State filed Civil Appeal No. 194 of 1992, wherein, a Panchnama was direcdted to be drawn. The Panchnama is at Exh.134 in the reference proceedings which indicate that the possession is with the Government. The Panchnama is dated 06.09.1992.
Mahendrabhai, on being aggrieved by the order in Civil Appeal No. 194 of 1992 preferred Civil Revision Application No. 1341 of 1992.
13.6 The judgement and order dated 29.11.1991 of the Gujarat Revenue Tribunal was challenged by the State Government by filing a Special Civil Suit No. 776 of 1992, where it was prayed that the judgement of the Gujarat Revenue Tribunal be declared as illegal and without jurisdiction. A further declaration was prayed to declare that the suit property be of the ownership of the State Government.
13.7 Special Civil Application No. 6428 of 1992 was also filed Page 224 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined by the State challenging the order of the Gujarat Revenue Tribunal which however was dismissed on the ground that since the State has already preferred the aforesaid Special Civil Suit No. 776 of 1992, the suit be decided expeditiously.
By a judgement and decree dated 21.03.1994, the learned 3 rd Joint Civil Judge (S.D.), Vadodara dismissed the suit filed by the State Government holding that the State Government has failed to prove that it had possession of the suit land either on the basis of ownership or on the basis of physical possession.
The decree of the trial court is also sought to be produced by way of additional evidence before us.
13.8 First Appeal No. 969 of 1994 was preferred by the State Government challenging the decree. This court by a CAV judgement dated 07.05.2002 confirmed the decree of the trial court. However, while dismissing the appeal, on a request made on behalf of the State Government the status quo granted by the first appellate court was extended for a period of three months. On 08.08.2002, the State preferred an SLP which was later numbered as Civil Appeal No. 7898-7900 of 2002 challenging the judgement of the High Court. On 10.04.2006, the Hon'ble Supreme Court dismissed the SLP.
Page 225 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined The plaint filed in the civil suit, the order dated 21.03.1994 passed by the civil court, the order of the Hon'ble Supreme Court dated 10.04.2006 by which the appeal of the state was dismissed are at exs.135, 138 & 139 respectively before the reference court. The copy of the panchnama and the plaint are at Ex. 134 & 135 respectively.
13.9 This in short is the litigation that went on between the state and the ancestors of the claimant with regard to title, ownership and possession of the subject lands. The learned Advocate General by relying upon the observations made by the Gujarat Revenue Tribunal in its order dated 29.11.1991 which is sought to be produced as additional evidence and the extracts of the order in the First Appeal has submitted that the case of the State Government that it had possession of the subject land was neither proved in the civil suit filed by the state challenging the order of the GRT after recording a categorical finding that the stand of the state in the suit cannot be believed. This finding was confirmed in first appeal as well as in the civil appeal before the Apex Court as both appeals confirmed the order of the trial court.
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14. On the other hand, Mr. Mihir Thakore, learned Senior Advocate had relied upon the various documents produced during the course of the proceedings in an inquiry under section 37(2) of the Bombay Land Revenue Code as well as in the civil suit at the hands of the state which attained finality which indicate that atleast right from the year 1960, the possession was with the state government.
15. We therefore have to adopt a course of checks and balances in considering whether the reference court was right in its perception of granting interest from 29.11.1991 till the date of Section 4 notification i.e. upto 09.02.2007. Before discussing the position of law on this issue, we may analyse the documents produced before the reference court which were part of the litigation between the parties. They are as under:
(a) At Ex. 132 is a copy of the order dated 07.04.1980 passed by the learned Deputy Collector, Vadodara.
Reading the relevant paragraphs of the document would indicate that the physical possession of the land was with one Fatesinh Regiment.
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(b) At Ex. 133, is the order of the District Collector, Vadodara dated 14.05.1983. Para 10 of the order indicates that the subject land being Survey Nos. 371 and 372 were part of the acquisition carried out for the Fatesinh Regiment and the possession was with the state government.
(c) At Ex. 134, is the panchnama drawn on 06.09.1992 in Civil Appeal No. 194 of 1992. Briefly recollecting, it is a panchnama drawn in the appeal filed by the State against an order of injunction granted in favour of late Mahendra Desai to the effect that he be not restrained from entering the land. Reading of the panchnama, a typed copy of which was produced and which Mr. Thakore read out before us, clearly indicates that the physical possession of the subject land was with the SRP where different activities were carried out and that there was a parade ground, a hockey ground and arms and ammunition storage depot which clearly proved the physical possession of the State.
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(d) Copy of the plaint of the State in Special Civil Suit No. 776 of 1992 which challenged the order of GRT is at Ex. 135. The pleadings of the plaint indicate that the state has admitted the fact that the physical possession of the land was with the state and it confirmed the averments as in the panchnama.
(e) At Ex. 136 was a deposition of the Commandant Mr. Malhar Rao who deposed on behalf of the State in the civil suit on 15.01.1994. Reading of that deposition indicates that the physical possession of the land was with the State for last many years where different activities were carried out. When the deposition is read, there is a clear indication that the land in question since 1980 was being used by the State Reserve Police and there is a Police Training School (PTS), a parade ground where there are equipment for undertaking physical training etc.
(f) At Ex. 180 is a letter dated 22.05.2002 of the Assistant Government Pleader of the State addressed to the Secretary, Legal Department in context of the First Page 229 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Appeal which was dismissed. The letter when read and we quote, opines as under:
"I am of the opinion that as the interest of the State regarding this case is considerable (i.e. the land is valued at more than Rs.200 crores approximately) and measures 53 vighas and 17 vasas i.e. 1,28,073 sq. mtrs in the prime area of Vadodara city and also the fact that more than 70 years land is used by the State Reserve Police (previously by the Fatesinh Regiment during Maharja of Baroda's time) this is a fit case for filing SLP before the Supreme Court of India."
The letter therefore clearly indites the state inasmuch as it is evident from the letter that the value of the land is more than Rs.200 crores and the physical possession is with the State.
(g) At Ex. 150 is the letter dated 28.05.2002 by the Superintendent of Land Records to the Collector in context of the First Appeal quoting the letter of the Assistant Government Pleader reiterating what the letter of 22.05.2002 suggests.
(h) At Ex. 181 is the memo dated 08.08.2002 of the Page 230 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined civil appeal filed by the State before the Apex Court.
Ground 5(A) of the memo reads as under:
"(A) That from time immemorial, the suit land was never in possession or ownership of respondent no.
1. As per the record, the land in question was in possession of Fatehsinh Regiment and is now in the onerous possession of government Police Training School and SRP, Group-I. The possession of the said suit land was never in the hands of respondent or any other private party. Grounds 5(C) and (D) read as under:
(C) That the High Court failed to appreciate that the history of the case originates from 1912 and since then the land in dispute admittedly remained in ownership and possession of Gaekwad Regiment. Thereafter, in the exclusive use and possession of SRP Group and Government Training School.
(D) That the courts below have failed to appreciate the oral evidence of several witnesses of the appellants.... which clearly show and prove beyond doubt that actual possession of the suit land was never with the respondents - defendants and was always with the plaintiffs.
(i) At Ex. 183 is the letter of the Commandant to the Collector dated 18.09.2006. The letter indicates that in the subject land the training school is functional since Page 231 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 1962 and therefore for its expansion there is a need for atleast 40 to 50 acres of land and in all the need is for 135 acres of land. Therefore, there is an additional need to acquire 85 acres. That a request be made for acquisition of additional land by invoking urgency clause as there are underground magazines and if private parties are handed over possession, it would lead to endangering security of the public as the establishment will have to move out of the land.
15.1 From the aforesaid narrative in the documentary evidences which are on record, it is clearly established that the possession of the land prior to 29.11.1991 was with the state and the land is being used as a parade ground, hockey ground, basketball ground, shooting range, helipad for landing of dignitaries etc. 15.2 The question of ownership in the chequered history of the litigation was for the first time proved by virtue of the order dated 29.11.1991 passed by the Gujarat Revenue Tribunal which was confirmed right upto the Apex Court which order is at Ex. 139. That the ownership of the Page 232 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined ancestors of the claimants was established and legal possession would therefore belong to them. However, on record are the documents produced by the state itself which admittedly prove the fact of the physical possession being with the state government and therefore when for the first time it was by the order of the GRT that ownership of the claimants has been established, we see no error in granting rent/interest with damages by the reference court in choosing the date i.e. 29.11.1991 as the relevant date for the purpose of granting such benefit.
16. The concept of physical possession and legal possession has been discussed during the course of his submissions by Mr. Thakore, learned Senior Counsel. A distinction is made between de facto possession and dejure possession. A person may have legal possession (de jure possession) but it may not necessarily mean that he has physical possession (de facto possession). In the case of Seksaria Cotton Mills Ltd.
(supra) paras 18-20 read as under:
"18. The only question therefore is whether there was physical delivery to Dwarkadas Khetan. In one sense, there can be no doubt about that. The goods left the Mills' premises, the property in them had Page 233 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined passed and when Dharsi Moolji refused to receive them they were handed over to Dwarkadas Khetan and not taken back to the Mills. Dwarkadas Khetan asked the Mills what he should do with them, and in the end he placed them in the Dady Seth godown. In any ordinary understanding of the term it would be clear that the goods had been physically delivered to Dwarkadas Khetan. But the learned High Court Judges do not appear to have concerned themselves with the question of actual physical possession because they say:-
"It would not be true to say, and the record amply bears it out, that this godown belonged to Dwarkadas Khetan. Even if Dwarkadas Khetan had control over the godown, the control was exercised on behalf of and as the agent of the Mills."
19. Therefore, the test of the sort of possession which they had in mind was not the control over the goods. But that has always been regarded as one of the tests of physical or de facto possession. Lancelot Hall distinguishing between possession in law and possession in fact says that "possession in the popular sense denotes a state of fact of exclusive physical control". See his treatise on Possessory Liens in English Law, page 2. See also Pollock and Wright in their Essay on Possession in the Common Law, page 119. Drawing the same distinction they say that "physical possession" may be generally described by stating that -
"when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or Page 234 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined land occupied by him, or in some receptacle belonging to him and under his control."
This would seem exactly to meet the case of Dwarkadas Khetan.
20. Possession is an ambiguous term. The law books divide its concept into two broad categories, (1) physical possession or possession in fact and (2) legal possession which need not coincide with possession in fact. The offending form with which we are concerned draws the same broad line. But even on the factual side of the border niceties creep in and so the possession of a servant is called custody rather than possession. But what of an agent ? If a man lives abroad over a period of years and leaves his house and furniture in charge of an agent who has the keys of the house and immedi- ate access to and physical control over the furniture, it would be difficult to say that the agent was not in physical possession. It is true the legal possession would continue to reside in the owner but the actual physical possession would surely be that of the agent. And so with a del credere agent, because such a person is the agent of the seller only up to a point. Beyond that he is either a principal or an agent of the buyer. This distinction was discussed by one of us in the Nagpur High Court in Kalyanji Kuwarji v. Tirkaram Sheolal(1) and was accepted by the Madras High Court in Kandula -Radhakrishna Rao v. The Province of Madras(2)."
16.1 So also in the case of Sadashiv Shyama Sawant (supra) which deals with the concept of legal and physical possession, paras 1 and 18 -23 read as under:
Page 235 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined "18. As noticed above, the views of the High Courts differ about maintainability of suit for possession by the landlord under Section 9 of 1877 Act in respect of property let out to the tenant who has been dispossessed forcibly by a third party.
That language of Section 6(1) of the Act and first paragraph of Section 9 of 1877 Act is exactly identical admits of no doubt. The key words in Section 6(1) are "dispossessed" and "he or any person claiming through him". A person is said to have been dispossessed when he has been deprived of his possession; such deprivation may be of actual possession or legal possession. Possession in law follows right to possession. The right to possession, though distinct from possession, is treated as equivalent to possession itself for certain purposes.
19. In Halsbury's Laws of England (Fourth Edition, page 617 - para 1111), `physical and legal possession' is distinguished as under:
" `Possession' is a word of ambiguous meaning, and its legal senses do not coincide with the popular sense. In English law it may be treated not merely as a physical condition protected by ownership, but as a right in itself. The word "possession" may mean effective, physical or manual control, or occupation, evidenced by some outward act, sometimes called de facto possession or detention as distinct from a legal right to possession... ...
`Possession' may mean legal possession: that possession which is recognized and protected as such by law. The elements normally characteristic of legal possession are an Page 236 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined intention of possessing together with that amount of occupation or control of the entire subject matter of which it is practically capable and which is sufficient for practical purposes to exclude strangers from interfering. Thus, legal possession is ordinarily associated with de facto possession; but legal possession may exist without de facto possession, and de facto possession is not always regarded as possession in law. A person who, although having no de facto possession, is deemed to have possession in law is sometimes said to have constructive possession."
20. Pollock and Wright in their classic work, `An Essay on Possession in the Common Law' (1888 Edition, page 27) explained the nature of possession, inter alia, as follows:
"Right to possess or to have legal possession. This includes the right to physical possession. It can exist apart from both physical and legal possession; it is, for example, that which remains to a rightful possessor immediately after he has been wrongfully dispossessed. It is a normal incident of ownership or property, and the name of `property' is often given to it....
Right to possess, when separated from possession, is often called `constructive possession.' The correct use of the term would seem to be coextensive with and limited to those cases where a person entitled to possess is (or was) allowed the same remedies as if he had really been in possession....".Page 237 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
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21. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word "dispossessed" in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression "any person claiming through him"
would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant.
22. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant.
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23. The view of Calcutta High Court that where the tenant was forcibly ejected from the land by the third party, it may reasonably be held that landlord has also been dispossessed is the correct view. We find ourselves in agreement with the view of Bombay, Patna, Pepsu and Rajasthan High Courts and hold, as it must be, that there is nothing in Section 6 of the Act to bar a landlord from suing a trespasser in possession even when, at the date of dispossession, the property is in actual occupation of a tenant entitled to possession. The views expressed by Madras High Court in Veeraswami Mudali1 and (Kanneganti) Ramamanemma5 and by Nagpur Judicial Commissioner in the case of Ramchandra do not lay down the correct law."
16.2 From the documents on record, it is evident that it was reasonable for the Reference Court to arrive at a finding of fact that the physical possession of the subject land being already with the State, the claimants were entitled to interest/ rent/damages prior to the date of section 4 notification.
17. Now whether such interest/rent/damages was legally sustainable is a question that needs to be considered. Both the learned counsels for the respective parties have cited judgements on the question for and against. The decision in the case of R.L. Jain (supra) was cited by the Advocate Page 239 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined General to submit that the Reference Court committed a grave error in awarding interest from 29.11.1991 as in law it had no jurisdiction to do so. While referring to the decision in the case of R.L. Jain (supra), the learned Advocate General relied on paragraphs no. 12 -16 of the judgement. The same read as under:
"12. The expression "the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited" should not be read in isolation divorced from its context. The words "such possession" and "so taking possession" are important and have to be given meaning in the light of other provisions of the Act. "Such compensation" would mean the compensation determined in accordance with other provisions of the Act, namely, Sections 11 and 15 of the Act which by virtue of Section 23(1) mean market value of the land on the date of notification under Section 4(1) and other amounts like statutory sum under sub-section (1-A) and solatium under Sub-section (2) of Section 23. The heading of Part II of the Act is Acquisition and there is a sub- heading "Taking Possession" which contains Sections 16 and 17 of the Act. The words "so taking possession" would therefore mean taking possession in accordance with Sections 16 or 17 of the Act. These are the only two Sections in the Act which specifically deal with the subject of taking possession of the acquired land. Clearly the stage for taking possession under the aforesaid provisions would be reached only after publication of the notification under Sections 4(1) and 9(1) of Page 240 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the Act. If possession is taken prior to the issuance of the notification under Section 4(1) it would not be in accordance with Sections 16 or 17 and will be without any authority of law and consequently cannot be recognised for the purposes of the Act. For the parity of reasons the words "from the date on which he took possession of the land" occurring in Section 28 of the Act would also mean lawful taking of possession in accordance with Sections 16 or 17 of the Act. The words "so taking possession"
can under no circumstances mean such dispossession of the owner of the land which has been done prior to publication of notification under Section 4(1) of the Act which is de hors the provisions of the Act.
13. In Union of India v. Budh Singh (supra) after analysis of the provisions of the Act the Bench arrived at the following conclusions:
"The parameter for initiation of the proceedings is the publication of the notification under Section 4(1) of the Act in the State Gazette or in an appropriate case in District Gazette as per the local amendments. But the condition precedent is publication of the notification under Section 4(1) in the appropriate gazette. That would give legitimacy to the State to take possession of the land in accordance with the provisions of the Act. Any possession otherwise would not be considered to be possession taken under the Act."
14. In Shri Vijay Cotton & Oil Mills (supra), the precise question raised here namely whether in a case where the possession is taken prior to the Page 241 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined issuance of notification under Section 4(1) of the Act, interest can be awarded in accordance with Sections 28 or 34 of the Act was not examined and the only issue examined was whether in an appeal which has been preferred by the State Government challenging the quantum of compensation awarded by the District Judge it is open to the High Court to award interest to the claimant even though he had not preferred any appeal or cross objection for the said purpose. It is well settled that a decision as an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made therein. (See Krishena Kumar v. Union of India, AIR 1990 SC 1782, Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38 and M/s. Orient Paper and Industries Ltd. & Anr. v. State of Orissa AIR 1991 SC 672). Shri Vijay Cotton & Oil Mills (supra) is therefore not an authority for the proposition that where possession is taken before issuance of notification under Section 4(1), interest on the compensation amount could be awarded in accordance with Section 34 of the Act with effect from the date of taking of possession.
15. Similar view has been taken in a recent decision by a Bench of two Judges in Smt. Lila Ghosh vs. State of West Bengal J.T. 2003 (9) SC 23 and the reasons given there in para 16 of the Report are being reproduced below:
"19. Even though the authority in Shree Vijay Cotton & Oil Mills Ltd. appears to support the claimants, it is to be seen that apart from mentioning sections 28 and 34, no reasons have been given to justify the award of interest from a date prior to commencement Page 242 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of acquisition proceedings. A plain reading of section 34 shows that interest is payable only if the compensation which is payable, is not paid or deposited before taking possession. The question of payment or deposit of compensation will not arise if there is no acquisition proceeding. In case where possession is taken prior to acquisition proceedings a party may have a right to claim compensation or interest. But such a claim would not be either under section 34 or section 28. In our view interest under these sections can only start running from the date the compensation is payable. Normally this would be from the date of the award. Of course, there may be cases under section 17 where by invoking urgency clause possession has been taken before the acquisition proceedings are initiated. In such cases, compensation, under the Land Acquisition Act, would be payable by virtue of the provisions of section 17. As in cases under section 17 compensation is payable, interest my run from the date possession was taken"
16. In this connection it will be apposite to refer to Sub-section (1A) of Section 23 of the Act which enjoins payment of an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4(1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. There are two decisions of this Court, wherein same controversy arose namely, whether the Page 243 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined claimant would be entitled to additional sum at the rate of twelve per centum on the market value where possession has been taken over prior to publication of notification under Section 4(1). In Special Tehsildar (LA) PWD Schemes Vijaywada v. M.A. Jabbar AIR 1995 SC 762 which has been decided by a Bench of two Judges (K. Ramaswamy and Mrs. Sujata V. Manohar, JJ) it was held that claimant would not be entitled to this additional sum for the period anterior to publication of notification under Section 4(1). However in Assistant Commissioner, Gadag, Sub- Division, Gadag v. Mathapathi Basavanewwa & Ors. AIR 1995 SC 2492 also decided by a two-Judge Bench (K. Ramaswamy and B.L. Hansaria, JJ) it was held that even though notification under Section 4(1) was issued after taking possession of the acquired land the owners would be entitled to additional amount at twelve per cent per annum from the date of taking possession though notification under Section 4(1) was published later. For the reasons already indicated, we are of the opinion that the view taken in Special Tehsildar is legally correct and the view to the contrary taken in Assistant Commissioner, Gadag (supra), is not in accordance with law and is hereby overruled."
18. The Apex Court by a three-judge bench judgement considered the issue at hand and held that even if section 4 notification was issued after taking possession of the acquired lands, the claimant would not be entitled to the additional sum for the period anterior to the publication of section 4 notification. Reliance was also placed on a decision of the Page 244 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Apex Court in the case of Buddhsinh (supra) and in the case of Chaudhary Mohanbhai Hirabhai (supra) to submit that it was open for the claimant to seek damages through any other civil remedy. We need to read the judgement of the larger bench which is even relied upon by the counsel for the respondent claimants. Mr. Thakore would press into service paragraph no. 18 of the decision in the case of R.L. Jain (supra) which reads as under:
"18. In a case where the land owner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the government merely takes possession of the land but the title thereof continues to vest with the land owner. It is fully open for the land owner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the land owner for the acquisition of the property. The provision of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate maybe awarded."Page 245 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 18.1 Reading of the paragraph would indicate that the Apex Court has observed that where possession is taken over prior to issuance of a preliminary notification, it will be just and equitable that the Collector may also determine rent or damages of the property to which the land owner is entitled to while determining compensation. Section 48 of the Land Acquisition Act, 1894 supports this proposition. The decision in the case of Madishetti Bala Ramul (supra) of which paragraphs no. 11-20 read as under, indicates that the decision of the larger bench was discussed and on facts the court found that the claimant was entitled to additional sum when the state continued to be in possession of the land despite abatement of the proceedings under the Act.
"11. In R.L. Jain (D) By L.Rs. v. DDA and Others [(2004) 4 SCC 79], a three-Judge Bench of this Court, opined :
"11. In order to decide the question whether the provisions of Section 34 of the Act regarding payment of interest would be applicable to a case where possession has been taken over prior to issuance of notification under Section 4(1) of the Act, it is necessary to have a look at the scheme of Page 246 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the Land Acquisition Act. Acquisition means taking not by voluntary agreement but by authority of an Act of Parliament and by virtue of the compulsory powers thereby conferred. In case of acquisition the property is taken by the State permanently and the title to the property vests in the State"
12. Noticing the provisions of the Act it was held that possession can be taken over only after an award is made. It was observed :
"Section 17 is in the nature of an exception to Section 16 and it provides that in cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1), take possession of any land needed for a public purpose and such land shall thereupon vest absolutely in the Government, free from all encumbrances. The urgency provision contained in Section 17(1) can be invoked and possession can be taken over only after publication of notification under Section 9(1) which itself can be done after publication of notification under Sections 4(1) and 6 of the Act. Even here in view of sub-section (3-A) the Collector has to tender 80 per cent of the estimated amount of compensation to the persons interested/entitled thereto before taking over possession. The scheme of the Act does not contemplate taking over of possession prior to the issuance of notification under Section 4(1) of the Act and if possession is taken prior to the said notification it will be dehors the Act. It is for Page 247 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined this reason that both Sections 11(1) and 23(1) enjoin the determination of the market value of the land on the date of publication of notification under Section 4(1) of the Act for the purpose of determining the amount of compensation to be awarded for the land acquired under the Act"
It was furthermore held :
"12. The expression the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited should not be read in isolation divorced from its context. The words such compensation and so taking possession are important and have to be given meaning in the light of other provisions of the Act. Such compensation would mean the compensation determined in accordance with other provisions of the Act, namely, Sections 11 and 15 of the Act which by virtue of Section 23(1) mean market value of the land on the date of notification under Section 4(1) and other amounts like statutory sum under sub- section (1-A) and solatium under sub-section (2) of Section 23. The heading of Part II of the Act is Acquisition and there is a sub-heading Taking Possession which contains Sections 16 and 17 of the Act. The words so taking possession would therefore mean taking possession in accordance with Section 16 or 17 of the Act. These are the only two sections in the Act which specifically deal with the subject of Page 248 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined taking possession of the acquired land. Clearly, the stage for taking possession under the aforesaid provisions would be reached only after publication of the notification under Sections 4(1) and 9(1) of the Act. If possession is taken prior to the issuance of the notification under Section 4(1) it would not be in accordance with Section 16 or 17 and will be without any authority of law and consequently cannot be recognised for the purposes of the Act. For parity of reasons the words from the date on which he took possession of the land occurring in Section 28 of the Act would also mean lawful taking of possession in accordance with Section 16 or 17 of the Act. The words so taking possession can under no circumstances mean such dispossession of the owner of the land which has been done prior to publication of notification under Section 4(1) of the Act which is dehors the provisions of the Act."
It was observed :
"18. In a case where the landowner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the Government merely takes possession of the land but the title thereof continues to vest with the landowner. It is fully open for the landowner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector Page 249 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined may also determine the rent or damages for use of the property to which the landowner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provisions of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded."
13. Yet again in Lila Ghosh (Smt.) (Dead) Through L.R. Tapas Chandra Roy etc. v. State of West Bengal etc. [(2004) 9 SCC 337], this Court held :
"19. Even though the authority in Shree Vijay Cotton & Oil Mills Ltd. appears to support the claimants, it is to be seen that apart from mentioning Sections 28 and 34, no reasons have been given to justify the award of interest from a date prior to commencement of acquisition proceedings. A plain reading of Section 34 shows that interest is payable only if the compensation, which is payable, is not paid or deposited before taking possession. The question of payment or deposit of compensation will not arise if there is no acquisition proceeding. In case where possession is taken prior to acquisition proceedings a party may have a right to claim compensation or interest. But such a claim would not be either under Section 34 or Section 28. In our view interest under these Sections can only start running from the date the compensation is payable. Normally this would be from the date of the Award. Of course, there may be cases under Section 17 where by invoking urgency clause possession has bean taken before the Page 250 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined acquisition proceedings are initiated. In such cases, compensation, under the Land Acquisition Act, would be payable by virtue of the provisions of Section 17. As in cases under Section 17 compensation is payable interest may run from the date possession was taken. However, this case does not fall into this category."
14. In this case, however, the appellants herein were dispossessed pursuant to a notification which for one reason or other could not be given effect to. Another notification under Section 4 of the Act had to be issued. The said notification was held to be not invalid. The State put forward the claim in respect of a portion of a property which it could not do. Possession must be obtained under a valid notification.
15. The Land Acquisition Officer took possession of the land on the basis of a notification which did not survive. Respondent could not have continued to hold possession of land despite abatement of the proceeding under the 1984 Act. It was directed to be decided by the High Court upon a reference made by the Collector in terms of Section 30 of the Act. The State, therefore, itself realized that its stand in regard to the ownership of 3 acres and 5 guntas of land was not correct. It, therefore, had to issue another notification having regard to the provisions contained in the Land Acquisition (Amendment) Act, 1984. Whereas the High Court may be correct in interpreting the question of law in view of the decision of this Court, but the same would not mean that Appellants would not get anything for being remaining out of possession from 1979 to 1991.
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16. Mrs. Amareshwari relied upon Section 25 of the Act which is as under :
"25. Amount of compensation awarded by court not to be lower than the amount awarded by the Collector.The amount of compensation awarded by the court shall not be less than the amount awarded by the Collector under section 11."
17. Section 25 of the Act merely prohibits that total amount of the award granted by the Collector cannot be reduced. Section 25 which has undergone an amendment in the year 1984, thus, merely lays down that the amount of compensation awarded by the reference court shall not be less than the amount awarded by the Collector, and in no circumstances the amount awarded by the Collector can be reduced. What is an award is a total sum and not the ingredients contained therein. An award made by the Collector is in the form of an offer. It is in that sense only that the amount contained therein cannot be reduced.
18. It is not the case of the appellants that the total amount of compensation stands reduced. If it had not been, we fail to understand as to how Section 25 will have any application in the instant case. Furthermore, Section 25 being a substantive provision will have no retrospective effect. The original award was passed on 08.02.1981, Section 25, as it stands now, may, therefore, not have any application in the instant case.
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19. In Land Acquisition Officer-cum-DSWO, A.P. v. B.V. Reddy and Sons [(2002) 3 SCC 463], this Court opined that Section 25 being not a procedural provision will have no retrospective effect, holding :
"6. Coming to the second question, it is a well- settled principle of construction that a substantive provision cannot be retrospective in nature unless the provision itself indicates the same. The amended provision of Section 25 nowhere indicates that the same would have any retrospective effect. Consequently, therefore, it would apply to all acquisitions made subsequent to 24-9-1984, the date on which Act 68 of 1984 came into force. The Land Acquisition (Amendment) Bill of 1982 was introduced in Parliament on 30-4-1982 and came into operation with effect from 24- 9-1984"
20. In the peculiar facts and circumstances of the case, although the proper course for us would have to remand the matter back to the Collector to determine the amount of compensation to which the Appellants would be entitled for being remained out of possession since 1979, we are of the opinion that the interest of justice would be met if this appeal is disposed of with a direction that additional interest @ 15% per annum on the amount awarded in terms of award dated 02.01.1999 for the period 16.03.1979 till 22.12.1991, should be granted, which, in our opinion, would meet the ends of justice."
Page 253 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 18.2 In the case of Tahera Khotoon (supra) reading paras 9- 15 which are reproduced as under, it is borne out that finding that the possession of the property was already with the Municipal Corporation prior to the date of notification i.e. from 01.01.1938 till 10.01.1996, the Apex Court directed the State Government to pay rent/damages at the rate of 15% on the compensation awarded. This court in First Appeal No. 1213 of 2016 considering the decisions of the Apex Court in paragraphs no. 3.7-6, held that a direction is necessary to award additional interest by way of damages.
"9.Now the remains to be considered and decided by us is whether the appellants are entitled for rent or damages from the date they were dispossessed till the date of preliminary Notification.
10.In support of the assertion, Shri. Shetty, learned Senior Counsel for the appellants has brought to out notice the observation made rendered by this Court in the case of R.L. Jain (D) by LRs. V. DDA & Others, 2004 (4) ALD 25 (SC)=(2004) 4 SCC 79 and also in the case of Madishetti Bala Ramul (D) by LRs. V. Land Acquisition Officer, (2007) 9 SCC 650.
11. In the first case, this court after considering the submission that is canvassed by the land loser/(s) though it fit to remand the matter to the LAO to determine the rent or damages for use of the property by the land owner/(s) are entitled while Page 254 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined determining the compensation amount payable to the land owner/(S) acquisition of the property.
12. In the latter decision of the court instead of remanding the matter to the LAO thought it fit to award 15% interest to the land loser/(s) from the date they were dispossessed till the date of preliminary Notification.
13.Keeping in view the peculiar facts and circumstances of the case, we are of the opinion that the exercise that has been done by this Court in the case of Madishetti Bala Ramul (D) by LRs's case (supra), requires to be adopted.
14. In the instant case, it is not in dispute nor is can be disputed by either side that the property in dispute was in possession of the Warangal Municipal Committee. In fact the said Municipal Committee had developed the aforesaid land in to a park. Since there was a dispute among the owners of the land with the Municipal Committee, the Municipal Committee had sought the assistance of the State Government to acquire the property and to hand over the same to the Municipal Committee for use and development.
15.It is also not in dispute that the Municipal Committee was in possession of the aforesaid property right from 01.01.1938 till the notification was issued by the State Government on 10.01.1996. Keeping in view the observations made by this Court in Madishetti Bala Ramul, we direct, the State Government to pay rents/damages at the rate of 15% on the compensation awarded from the date the land owners were dispossessed, namely, from 01.01.1938 till the date of issuance of the preliminary notification i.e. 10.01.1996. The Page 255 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined calculations shall be made by the State Government as expeditiously as possible and disburse the aforesaid amount to the appellants as early as possible, at any rate, within three months from the date of receipt of copy of this order."
18.3 This was so done in light of the decision of the Apex Court in the case of Balwan Singh (supra) which noticing the decisions on the issue in paras 2-4 held as under:
"2. Noticing the above position, this Court in the case of Madishetti Bala Ramul (dead) by Lrs. Vs. Land Acquisition Officer reported in (2007) 9 SCC 650, took the view that it may not be proper to remand the matter to the Collector to determine the amount of compensation to which the appellants therein would be entitled for the period during which they remained out of possession and hence, in the interest of justice, this Court directed that additional interest at the rate of 15% per annum on the amount awarded by the Land Acquisition Collector, shall be paid for the period between the date of dis-possession and the date of Notification under Section 4(1) of the Act.
3. The said view was followed by this Court in the case of Tahera Khatoon & Ors. Vs. Revenue Divisional Officer/Land Acquisition Officer & Ors. Reported in (2014) 13 SCC 613.
4. Following the above view taken by this Court, these appeals are disposed of directing the respondents to award additional interest by way of damages, at the rate of 15% per annum for the period between 1.7.1984, the date when the Page 256 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined appellants were dis-possessed till 2.9.1993, the date of Notification under Section 4(1) of the Act."
18.4 This case law therefore indicates that though the decision of the Apex Court in the case of R.L. Jain (supra) was pressed into service by the State, the concept of awarding interest/rent and or damages at the rate of 15% from the date of physical possession is not foreign and a land owner is entitled to get rent or damages for use and occupation of the property. Records produced before the Reference Court though indicate that the State Government was in possession of the land even prior to 1991, the Reference Court has only granted rent/damages at the rate of 15% from 29.11.1991. In light of this therefore, the award of such interest at the rate of 15% prior to the date of the publication of the notification in light of a categorical finding based on the assessment of documentary evidence including the additional evidence produced on record having been proved, no fault can be found with the directions issued by the Reference Court on this aspect too.
19. The other ground on which the award is challenged is Page 257 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined that in absence of any provision interest at the rate of 15% per annum is highly excessive. Reliance was placed on a Government Resolution dated 18.06.1986 which is sought to be produced by way of additional evidence to submit that at best the rate ought to have been at 9% per annum. As per the State, if the interest is calculated at 9% per annum, the same will come to Rs.172,30,60,508/- and not Rs.729,20,94,260.41 for the period from 29.11.1991 to 09.02.2007 with the result that the final amount will come to Rs.659,55,97,916/- instead of the awarded amount of Rs.1,872,41,64,438.73.
20. As far as reliance placed on Government Resolution dated 18.06.1986 is concerned, apparently reading of the resolution indicates that it deals with a situation where acquisition is by consent. The resolution therefore clearly will not apply in the facts of this case. Even, with regard to the grant of interest, as rightly submitted by Mr. Thakore, learned Senior Advocate with Mr. P.K Jani, learned Senior Advocate, the framework of interest is well set out under the provisions of Sections 23, 28 and 34 of the Act. For this purpose, the decision of Apex Court in the case of Sunder (supra) is relevant. Paragraph no. 1, 14, 15, 20-23, 26 & 27 read as Page 258 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined under:
"1. The question referred to this Bench of five Judges is a simple one. Is the State liable to pay interest on the amount envisaged under Section 23(2) of the Land Acquisition Act, 1894 (for short 'the Act')? The sum contemplated in the aforesaid sub-section can conveniently be called "solatium"
as that expression has been used plentifully in almost all land acquisition proceedings in India. The reference of the aforesaid question to this larger Bench was necessitated on account of a seeming conflict as between the decision of a three Judge Bench of this Court in Union of India vs. Shri Ram Mehar and ors. {1973(1) SCC 109} on the one hand and a few later decisions of co-equal Benches of this Court on the other hand.
14. Question of payment of interest would arise only when the compensation is not paid or deposited on or before the date of taking possession of the land. It is inequitable that the person who is deprived of the possession of the land, on account of acquisition proceedings is not given the amount which law demands to be paid to him, any delay thereafter would only be to his detriment. There must be a provision to buffet such iniquity. It is for the purpose of affording relief to the person who is entitled to such compensation when the payment of his money is delayed that the provision is made in Section 34 of the Act. That section is extracted below:
"34. Payment of Interest.- When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of Page 259 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited.
Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry."
15. When the court is of opinion that Collector should have awarded a larger sum as compensation the court has to direct the Collector to pay interest on such excess amount. The rate of interest is on a par with the rate indicated in Section 34. This is so provided in Section 28 of the Act which is extracted below:
"28. If the sum which, in the opinion of the court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into court.
Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be Page 260 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry."
20. We may now see whether exclusion of the factor "any disinclination of the person interested to part with the land acquired" from being considered as part of the compensation indicated in Section 24 of the Act would be of any aid for excluding solatium from the purview of interest accrual process. No doubt what is intended under Section 23(2) is additional to the market value of the land and "in consideration of the compulsory nature of the acquisition". But it cannot be equated with any damage caused on account of "any disinclination of the person to part with the land acquired."
21. It is apposite in this context to point out that during the enquiry contemplated under Section 11 of the Act the Collector has to consider the objections which any person interested has stated pursuant to the notice given to him. It may be possible that a person so interested would advance objections for highlighting their disinclination to part with the land acquired on account of a variety of grounds, such as sentimental or religious or psychological or traditional etc. Section 24 emphasises that no amount on account of any disinclination of the person interested to part with the land shall be granted as compensation. That aspect is qualitatively different from the solatium which the legislature wanted to provide "in Page 261 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined consideration of the compulsory nature of the acquisition".
22. Compulsory nature of acquisition is to be distinguished from voluntary sale or transfer. In the latter, the landowner has the widest advantage in finding out a would-be buyer and in negotiating with him regarding the sale price. Even in such negotiations or haggling normally no landowner would bargain for any amount in consideration of his disinclination to part with the land. The mere fact that he is negotiating for sale of the land would show that he is willing to part with the land. The owner is free to settle terms of transfer and choose the buyer as also to appoint the point of time when he would be receiving consideration and parting with his title and possession over the land. But in the compulsory acquisition the landowner is deprived of the right and opportunity to negotiate and bargain for the sale price. It depends on what the Collector or the Court fixes as per the provisions of the Act. The solatium envisaged in sub-section (2) "in consideration of the compulsory nature of the acquisition" is thus not the same as damages on account of the disinclination to part with the land acquired.
23. In deciding the question as to what amount would bear interest under Section 34 of the Act a peep into Section 31(1) of the Act would be advantageous. That sub-section says:
"On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the Page 262 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined contingencies mentioned in the next sub- section."
The remaining sub-sections in that provision only deal with the contingencies in which the Collector has to deposit the amount instead of paying it to the party concerned. It is the legal obligation of the Collector to pay "the compensation awarded by him" to the party entitled thereto. We make it clear that the compensation awarded would include not only the total sum arrived at as per sub- section (1) of Section 23 but the remaining sub-sections thereof as well. It is thus clear from Section 34 that the expression "awarded amount" would mean the amount of compensation worked out in accordance with the provisions contained in Section 23, including all the sub-sections thereof.
26. We think it useful to quote the reasoning advanced by Chief Justice S.S. Sandhawalia of the Division Bench of the Punjab and Haryana High Court in State of Haryana vs. Smt. Kailashwati and ors. (supra).
"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 Page 263 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well."
27. In our view the aforesaid statement of law is in accord with the sound principle of interpretation. Hence the person entitled to the compensation awarded is also entitled to get interest on the aggregate amount including solatium. The reference is answered accordingly."
21. Discussing the provisions of Sections 28 and 34 of the Act, the Apex Court has considered the decision of a Division Bench of Punjab & Haryana High Court where it was held that 'once it is held as it inevitably must be that the solatium provided under Section 23(2) of the Act forms an integral and statutory part of the compensation awarded to a land owner, 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 Section 28 does not even remotely refer to the market value alone and in terms talks of compensation of the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit, both the market value and the statutory solatium.' The Page 264 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Apex Court therefore held that a claimant is entitled to compensation awarded and is also entitled to get interest on the aggregate amount including solatium.
22. In the case of Gurpreet Singh (supra), the Apex Court has held as under:
"28. Going by this principle and for the moment keeping out the scheme of the Land Acquisition Act, it appears to us that on payment or deposit of the amount awarded by the Collector in terms of Section 11 read with Section 31 of the Act, the claimant cannot thereafter claim any interest on that part of the compensation paid to him or deposited for the payment to him once notice of deposit is given to him. Thereafter, when the reference court enhances the compensation with consequential enhancement in solatium and interest under Section 23(1A) of the Act and further awards interest on the enhanced compensation in terms of Section 28 of the Act, the claimant/decree holder can seek an appropriation of the amounts deposited pursuant to that award decree, only towards the enhanced amount so awarded by the reference court. While making the appropriation, he can apply the amount deposited, first towards the satisfaction of his claim towards interest on the enhanced amount, the costs, if any, awarded and the balance towards the land value, solatium and the payment under Sections 23 (1A) of the Act and if, there is a shortfall, claim that part of the compensation with interest thereon as provided in Section 28 of the Act and as covered by the award decree. Once the sum enhanced by the Page 265 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined reference court, along with the interest is deposited by the State, there will be no occasion for the claimant/awardee to seek a reopening of the amount awarded by the Collector, substituted by the amount awarded by the reference court and seek to have a re- appropriation of the amount towards what is due. Same would be the position in a case where the amount awarded by the reference court, including the interest is deposited, but the amount is further enhanced in appeal by the High Court. Again, the same principle would apply. The principle would continue to apply when the Supreme Court awards further enhancement in a further appeal to that Court. But if after the award by the reference court the amount is not deposited by the State, interest would run on the compensation in terms of Section 28 of the Act on that amount as provided in Section 28. The same would be the position regarding the enhancement given in appeal by the High Court and in the enhancement given in appeal by the Supreme Court. The mandate of Section 34 and Section 28 that interest would run from the date the Collector takes possession till the particular amount is deposited as provided in those sections ensures that the claimant is recompensed adequately. Section 28 ensures such recompense at each stage of enhancement of compensation.
29. Let us now consider the scheme of the Land Acquisition Act, 1894 as amended by the Land Acquisition (Amendment) Act 68 of 1984. After the publication of the preliminary notification under Section 4 of the Act and after hearing of objections, a declaration has to be made under Section 6 of the Act. The Collector is then to take the order for acquisition from the Appropriate Page 266 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Government or the officer authorized in that behalf by the Government. After completing the formalities contemplated and the enquiry made in terms of Section 11 of the Act, the Collector has to make an award indicating the true area of the land, the compensation which in his opinion should be allowed for the land and the apportionment of the compensation among the persons known or believed to be interested in the land. In making the award, the Collector shall be guided by Sections
23 and 24 dealing with matters to be considered in determining the compensation and matters to be excluded in determining the compensation as enjoined by Section 15 of the Act. Under Section 12 of the Act, the award becomes final as between the Collector and the persons interested and the Collector is to give notice of his award to persons interested. On making the award, the Collector may take possession of the land in terms of Section 16 of the Act. Under Section 31, on making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by the contingencies referred to in Section 31 itself. Under Section 34 of the Act, when the amount of compensation awarded is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per cent per annum from the time of taking possession till it shall have been paid or deposited. But if the compensation or any part thereof is not paid within a period of one year from the date on which possession is taken, interest is payable at the rate of fifteen per cent per annum from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been Page 267 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined paid or deposited before the date of such expiry. It is relevant to notice that on payment of the amounts thus due, the award made by the Collector stands satisfied.
30. A person interested, who is not satisfied with the amount of compensation awarded by the Collector is entitled to receive the amount under protest and could apply to the Collector requiring him to refer the matter to the Court in terms of Section 18 of the Act. The Collector is then to make a statement to the Court and the Court is entitled to fix the compensation subject to Section 25 of the Act which provides that the amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11 of the Act. In fixing the compensation, the Court shall have regard to the matters referred to in Sections 23 and 24 of the Act. Under Section 26, every award shall be deemed to be a decree within the meaning of Section 2(2) of the Code of Civil Procedure and every reasoned award shall be deemed to be a judgment as defined in Section 2(9) of the Code of Civil Procedure. Under Section 27 of the Act, every award made by the Court shall also contain directions regarding the costs incurred in the proceedings in Court, the costs of the claimant found entitled to enhancement, normally to be borne by the Collector. Under Section 28 of the Act, the Court which has awarded compensation in excess of the sum which the Collector did award as compensation, may direct that the Collector shall pay interest on such excess at the rate of nine per cent per annum from the date on which he took possession of the land to the date of payment of such excess into Court. The proviso enjoins the Page 268 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Court to direct that where such excess or any part thereof is paid into Court after the expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per cent per annum, shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court after the date of such expiry. Two aspects require to be noted. One is that the interest is payable only on the excess amount of compensation awarded by the reference court and the second is that interest on the enhanced amount awarded is payable from the date of taking possession at the rate of 9% per annum for the first year after taking possession and thereafter at 15% per annum till the deposit of the excess is made. This clearly indicates that there is no scope for the re-opening of the appropriation already made pursuant to the award. The other significant factor is that the award should specify the amount awarded as market value of the land separately and the other amount, if any, awarded under other heads of Section 23(1).
31. Under Section 54 of the Act, a person, still not satisfied with the decree of enhancement in his favour on the reference under Section 18 of the Act, has a right to file an appeal to the High Court and from the decision of the High Court in such an appeal, an appeal to the Supreme Court. If one were to go by the definition of 'Court' occurring in Section 3(d) of the Act, Section 28 providing for payment of interest on excess compensation may not apply to an appeal under Section 54 of the Act on the excess, if any awarded by the High Court or in subsequent appeal by the Supreme Court. But when in an appeal under Section 54 of the Act, the Page 269 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined appellate court further enhances the compensation, it awards the compensation that the reference court ought to have awarded and so understood, Section 28 of the Act may be applied at the appellate stage. If the expression 'Court' used in Section 28 of the Act is understood in the generic sense, (on the basis that the context otherwise requires it), the result would be the same. The other provision relevant to be noted is Section 53 of the Act which makes the Code of Civil Procedure applicable to all proceedings before the Court under the Act save in so far as the provisions of the Code are found to be inconsistent with anything contained in the Act. Section 54 also does not keep out the Code, but makes the appeal under it subject to the provisions of the Code applicable to appeals from original decrees.
32. In the scheme of the Act, it is seen that the award of compensation is at different stages. The first stage occurs when the award is passed. Obviously, the award takes in all the amounts contemplated by Section 23(1) of the Act, Section 23(1A) of the Act, Section 23(2) of the Act and the interest contemplated by Section 34 of the Act. The whole of that amount is paid or deposited by the Collector in terms of Section 31 of the Act. At this stage, no shortfall in deposit is contemplated, since the Collector has to pay or deposit the amount awarded by him. If a shortfall is pointed out, it may have to be made up at that stage and the principle of appropriation may apply, though it is difficult to contemplate a partial deposit at that stage. On the deposit by the Collector under Section 31 of the Act, the first stage comes to an end subject to the right of the claimant to notice of the deposit and Page 270 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined withdrawal or acceptance of the amount with or without protest.
33. The second stage occurs on a reference under Section 18 of the Act. When the reference Court awards enhanced compensation, it has necessarily to take note of the enhanced amounts payable under Section 23(1), Section 23(1A), Section 23(2) and interest on the enhanced amount as provided in Section 28 of the Act and costs in terms of Section 27. The Collector has the duty to deposit these amounts pursuant to the deemed decree thus passed. This has nothing to do with the earlier deposit made or to be made under and after the award. If the deposit made, falls short of the enhancement decreed, there can arise the question of appropriation at that stage, in relation to the amount enhanced on the reference.
36. Can a claimant or decree holder who has received the entire amount awarded by the reference court or who had notice of the deposit of the entire amount so awarded, claim interest on the amount he has already received merely because the appellate court has enhanced the compensation and has made payable additional compensation? We have already referred to Order XXI and Order XXIV of the Code to point out that such a blanket re-opening of the transaction is not warranted even in respect of a money decree. Section 28 of the Act indicates that the award of interest is confined to the excess compensation awarded and it is to be paid from the date of dispossession. This is in consonance with the position that a fresh re-appropriation is not contemplated or warranted by the scheme of the Act. But if there is any shortfall at any stage, the Page 271 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined claimant or decree holder can seek to apply the rule of appropriation in respect of that amount, first towards interest and costs and then towards the principal, unless the decree otherwise directs.
37. In Sunder Vs. Union of India [2001 Suppl. (3) S.C.R. 176], this Court posed the question, what is meant by "the compensation" awarded. The Court concluded, "We make it clear that the compensation awarded would include not only the total sum arrived at as per sub- Section (1) of Section 23 but the remaining sub-Sections thereof as well. It is thus clear from Section 34 that the expression "awarded amount" would mean the amount of compensation worked out in accordance with the provisions contained in Section 23, including all the sub-Sections thereof."
38. This shows that there is no distinction made between land value and solatium on the one hand and the interest awardable on the other, under Section 23(1A) of the Act. It is on this sum that the interest under Section 34 of the Act is awarded and if it were a reference, awarded under Section 28 of the Act, in addition to costs, if any. Thus, the award by the Collector and the deemed decree passed on reference contain the components of compensation and interest in the first and interest and costs in the second.
44. Section 34 of the Act fastens liability on the Collector to pay interest on the amount of compensation determined under Section 23(1) with interest from the date of taking possession till date Page 272 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined of payment or deposit into the court to which reference under Section 18 would be made. On determination of the excess amount of compensation, Section 28 empowers the court, if it was enhancing the compensation awarded by the Collector, to award interest on the sum in excess of what the Collector had awarded as compensation. The award of the court may also direct the Collector to pay interest on such excess or part thereof from the date on which he took possession of the land to the date of payment of such excess into court at the rates specified thereunder. The Court Stated:
"In other words, Sections 34 and 28 fasten the liability on the State to pay interest on the amount of compensation or on excess compensation under Section 28 from the date of the award and decree but the liability to pay interest on the excess amount of compensation determined by the Court relates back to the date of taking possession of the land to the date of the payment of such excess into the court."
45. The Court concluded:
"12. It is clear from the scheme of the Act and the express language used in Sections 23(1) and (2), 34 and 28 and now Section 23(1-A) of the Act that each component is a distinct and separate one. When compensation is determined under Section 23(1), its quantification, though made at different levels, the liability to pay interest thereon arises from the date on which the quantification was so made but, as stated earlier, it relates back to the date of taking possession of the land till the date of deposit of interest on such excess compensation into Page 273 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the court The liability to pay interest is only on the excess amount of compensation determined under Section 23(1) and not on the amount already determined by the Land Acquisition Officer under Section11 and paid to the party or deposited into the Court or determined under Section 26 or Section 54 and deposited into the court or on solatium under Section 23(2) and additional amount under Section 23(1-A).""
23. For the reasons therefore, we hold that the amount awarded which includes interest at the rate of 15% per annum so computed is just and proper and in accordance with the framework provided so under the Act.
24. We note that while discussing the evidence on record, we have considered the additional evidence brought by the appellant which otherwise was not forming part of the Reference Court. Documents from A-2 to A-9 are documents which are public documents and which even otherwise form part of or were referred to in the documentary evidence which was otherwise on record. Order 41 Rule 27 of the Code of Civil Procedure, 1908 which deals with production of additional evidence in the appellate court indicates that a party to an appeal shall not be entitled to produce additional Page 274 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined evidence, whether oral or documentary in the appellate court but if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or the appellate court requires any document to be produced to enable it to pronounce its judgement or for any other substantial cause, the appellate court may allow such evidence.
25. As far as the order dated 21.03.1994 passed by the Civil Court in the Special Civil Suit No. 776 of 1992 is concerned, the plaint is already on record vide Ex. 135 and therefore in appreciating the question of possession, this court would be better equipped if the original order in the civil proceedings and the additional evidence wherein the order of the Tribunal in the very suit was under challenge are permitted to be considered by this court. As far as Section 4 notification, the valuation report, the resolutions dated 18.06.1986 and circular dated 23.09.2002 are concerned, we note that no prejudice will be caused if the Section 4 notification is permitted to be adduced as additional evidence. As far as the Page 275 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined circular dated 23.09.2002, the valuation report dated 07.09.2006 and 30.03.2007 and the minutes of the meeting dated 09.04.2007 are directly or indirectly being referred to and relied upon in the relevant exhibits produced before this court. Therefore, in light of the provisions of sub-clause (b) of Order 27 Rule 1 it will enable this court to pronounce its judgement and also advance substantial cause and there is no necessity to remand the proceedings as such documents referred to hereinabove were relied upon in the exhibits originally so produced before the trial court. The contention of the respondents with regard to these documents as far as A-2 to A-9 are concerned, opposing production of additional evidence, is not accepted. Documents sought to be brought on record from A-10 to A-16 namely agreements of sale dated 20.05.1988, 07.10.2000, 07.12.2019, 14.12.2019 are agreements of sale to third parties which in no manner can be of any assistance for the purposes of pronouncing the judgement with regard to the market value of the land or the quantum of compensation. So also the development agreement dated 06.06.1992 need not be brought on record by way of additional evidence. We therefore partly allow the application for bringing additional evidence on record and Page 276 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined consider these documents namely Annexures A-2 to A-9 which we have while advancing reasons in deciding the issues raised before this court.
26. An additional argument has been raised by the State that there is an arithmetical error in calculating the amount of interest/rent at the rate of 15% per annum from 29.11.1991 to 09.02.2007 giving rise to the total of Rs.729,20,94,260.41 since the correct amount comes to the tune of Rs.673,78,13,382/- which would have changed the final award amount to Rs.1,816,98,83,561/- instead of the awarded sum of Rs.1,872,41,64,438.73. A statement along with the memo of the first appeal has been pressed into service which reads as under:
Statement I showing the additional compensation awarded by the Civil Court, Vaoddara alongwith arithmetical viz-a-viz correct figure Sr L.R. Case City Area of Additi 12% 30% Inter Aggreg As per As per Total Amount .N no. Surv Land onal additi soalti est/ ate para para 6.1 o. ey under Comp onal um on Rent Amount 6.1 of of the No. Acquisi ensati intere marke Fro of the Judgment tion on on st u/s t m Compe Judge , Interest Sq. mtr award 23(1- value 29/1 nsation ment, @ 15% ed by A) (As 1/19 (5+6+7 Intere (from the from per u/ 91 +8) st @ 10.02.200 Court date s to 9% 8 to at at u/s 23(2)) 09/0 for 17.02.202 Rs.24 4 to 2/20 the 3) 134/- date 07 first per at (15 year sq.mtr award %) from Page 277 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined (i.e. (22 Sectio Rs.26, month n-4 048.0 s) Notifi 0- cation Rs.19 (From
14) 09.02.
(As 2007)
per u/
s 23)
1 2 3 4 5 6 7 8 9 10 11
1 37/2009 1-A/2 122718 29616 65156 88850 729, 1179,3 26655 666,37,71 1872,41,64,43
35/2009 76212 8767 2864 20,9 8,42,10 0859 ,477.00 8.73
55/2009 4,26 2.65
0.41
6737 112395 26655 666,37,71 1816,98,83,56 8133 61225 0859. ,477 1 82 1
27. The argument of the learned Advocate General appears to be erroneous. The statement when perused would indicate that the interest calculated by the appellant to highlight an arithmetical error is only on the additional compensation awarded of Rs.24,134/- and not the total compensation of Rs.26,048/- which includes the amount of Rs.1,914.00 which was initially awarded to the claimants.
28. Cross objections have been filed and before we decide the same, the state has produced a chart showing the fair valuation of the subject land which is as under:
Statement showing fair valuation of the subject land Available Sale Instance on record, which Rs.10,038.80 per sq.mtr. as per Sale Deed should be applied to the subject land dated 25.01.2005 (pg.118 in PB) in respect Page 278 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
----- of land bearing City Surrvey No.139 admeasuring 1,992.27 sq. mtrs., located in Vadodara-Kasba, City Vadodara, 09.02.2007 (pg.95A in PB) located at Date of Section 4 Notification in respect of Vadodara-Kasba, City of Vadodara.
subject land -----
Amount of escalation @ 10% for the period from 25.01.2005 to 09.02.2007 (25 months) Rs.2,161.51 per sq. mtr.
-----
Total rate of valuation ------ Rs.12,200.31 per sq.mtr. (i.e. Rs. 10,038.80 per sq.mtr. + Rs.2,161.51 per sq. mtr.) Amount towards 50% deduction from the Rs.6,100.15 per sq. mtr. aforesaid rate of valuation, so as to app the same to the larger tract of land like subject land -----
Net valuation rate which may be applied to Rs.6,100.15 per sq. mtr. (Rs * 0.12, 200.3) the subject land ----- sq.mtr. -Rs.6,100.15 per sq.mtr.
Rs.4,186.15 per sq. mtr. (i.e. Rs.6,100.15 Difference in the rate i.e. net valuation rate per sq. mtr. - Rs. 1,914.00 per sq. mtr.)
- the rate determined as per Section 11 Award, for working out the amount of Additional Compensation -----
Chart indicating the working of very plausible amount payable towards compensation for the subject land on the basis of the aforesaid details Sr L.R. Case City Area of Additi 12% 30% Inter Aggreg As per As per Total Amount .N no. Surv Land onal additi soalti est/ ate para para 6.1 o. ey under Comp onal um on Rent Amount 6.1 of of the No. Acquisi ensati intere marke Fro of the Judgemen tion on on to st u/s t m Compe Judge t, Interest Sq. mtr be 23(1- value 29/1 nsation ment, @ 15% worke A) (As 1/19 (5+6+7 Intere (from d out from per u/ 91 +8) st @ 10.02.200 at date s to 9% 8 to Rs.41 at u/s 23(2)) 09/0 for 17.02.202 86.15 4 2/20 the 3) per 07 first sq.mtr (15 year . %) from Sectio n-4 Notifi cation (From 09.02.
2007) 1 2 3 4 5 6 7 8 9 10 11 1 37/2009 1-A/2 122718 51371 11301 15411 0.00 780848 46234 11558609 1982943589 35/2009 5955. 7510 4787 253 436 00 55/2009 7 Page 279 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
29. It is the contention of the state that the chart indicates the working of a very plausible amount payable towards compensation. Working of the chart indicates that accepting Rs.10,038/- as the sale price to be applied to the subject land after adding 10% escalation of Rs.2161.51, the total valuation arrived at is Rs.12,200.31. 50% deduction from the aforesaid value is pressed into service as it is a large tract of land being in the shape of a strip of land having more depth rather than frontage, lying low, existence of a water body and a railway track. Perusal of the award indicates that the Reference Court has deducted 25% each on account of the land being on the interiors, keeping that it was a large tract and therefore the assessment for a smaller tract of land cannot apply and keeping these parameters in view, came to a figure of Rs.25,004.98. Reading the award indicates that since the valuation committee's minutes were dated 13.09.2006, whereas the Section 4 notification was of 09.02.2007, there was a difference of 4 months and 26 days. Annual escalation of 10% could be applied and pro-rata escalation was worked out at 4.17% at Rs.1043/- to arrive at the figure of Rs.25,004.98 which in our opinion is just and proper.
Page 280 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
30. Mr. Prakash Jani, learned Senior Advocate has argued the cross objections and submitted that the claimant's demand for an amount of Rs.65,000/- was just and proper. The possession of the land was with the government since long even prior to the Tribunal dated 29.11.1991 and even otherwise if exs. 146-149 are taken into consideration, the minimum that could be fixed was in the range of Rs.40,000 to 45,000 per sq.mtr. Compensation therefore ought to have been enhanced. He also would reiterate the submissions made by learned Senior Advocate Mr. Mihir Thakore and rely on the following decisions:
(a) Chimanlal Hargovinddas vs. Special Land Acquisition Officer reported in 1988(0)-AIJEL-SC-5162;
(b) General Manager, ONGC vs. Rameshbhai Jivanbhai Patel reported in 2008(0)-AIJEL-SC-42139;
(c) Mehrawal Khewaji Trust (Regd.) Faridkot vs. State of Punjab reported in 2012(0)-AIJEL-SC-51154;
(d) State of Gujarat Through Special Land Acquisition Officer vs. Amaji Mahanji Thakore reported in 2010(0)-
AIJEL-HC-223782;
Page 281 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
(e) Special Land Acquisition Officer vs. Karigowda and Others reported in 2010(5)-SSC-708;
(f) Haresh J. Doshi vs. Prataprai Gaurishanker Trivedi reported in 2018(0)-AIJEL-HC-239236;
(g) Sirajudheen vs. Zeenath reported in 2023(0)-AIJEL-
SC-70437.
31. We have assessed the evidence on record from the perception of the land reference court's reasoning. While four instances were put forth before the trial court as comparable sale instances for arriving at a figure of Rs.25,004.98, what is evident is that the reference court considered ex. 147 wherein the sale deed dated 25.01.2005 for 6125 sq. mtrs of land was the base price. Based on the decisions pressed into service by the learned counsel for the respondent claimants, on the issue of assessment of market value, deduction towards development charges, escalations that may be taken into account and on the assessment of evidence on the question of possession being with the State, we have given our imprimatur on the fixation of Rs.25,004.98 and we see no reason why the claim based on the cross objections be accepted. True it is that even the cross objectors -
Page 282 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined respondent had reservations on the additional evidence that is produced, however, perusal of the order concerning production of additional evidence, though the cross objectors would submit that the evidence which is sought to be brought on record was known to the appellant, was within the exclusive custody of the appellant and it is not their case that they could not find out these documents. We have considered these documents namely annexures A-2 to A-9, they being public documents and were already referred to in the documents already on record and which have enabled us to pronounce the judgement and therefore even the contention of the learned counsel for the respondents that these not be taken into consideration need not be accepted. As is evident from the case in Malayalam Plantation (supra), when such documents are official records which if proved would enable the appellate court to pronounce the judgment and do full, complete and effective justice to the parties enabling the court to answer the subject matter, in our opinion there are sufficient ground for permitting to bring such documents by way of additional evidence.
32. For the aforesaid reasons therefore the appeals and the Page 283 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined connected cross objections are dismissed. Civil application for bringing additional evidence is partly allowed. Civil Applications for stay also stand disposed of. Notices are discharged.
CIVIL APPLICATIONS 2321/2022, 99/23 & 100/23
1. These are Civil Applications filed by one Mukesh Jamnadas Shah and Another. Mr. Nirav Majmudar, learned advocate appearing with Mr. P.B. Khambolja, learned advocate for the applicants has submitted that the applicants may be granted leave to file first appeals against the order of the learned 20th Senior Civil Judge, Vadodara dated 05.03.2022 in Land Reference Nos. 37 of 2009 and others. He states that he adopts the arguments advanced by Mr. Mehul Shah, learned Senior Advocate appearing in the Civil Applications for joining party.
Civil Applications No. 3/2022 in FA No. 21 of 2023, 1/2023 in FA No. 11 of 2023, 3/2023 in FA No. 22 of 2023, 4/2023 in FA 11 of 2023 for joining party Page 284 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined
2. Civil Applications No. 3/22 & 1/23 have been filed by one Mukesh Jamnadas Shah and Another for being impleaded as party respondents in the respective main first appeals whereas Civil Applications No. 3 & 4 of 2023 have been filed by one Shankar Keshavlal Patel for being impleaded as party in the respective appeals.
3. As far as Civil Applications No. 3/22 and 1/23 are concerned, the submissions made by Mr. Mehul Shah, learned Senior Advocate in the leave to appeal in the main appeals are common.
4. Mr. Mehul Shah, learned Senior Counsel appearing with Mr. Vaibhav Vyas, learned advocate for the applicants would submit that in the year 2007 the applicants had filed Special Civil Suit No. 521 of 2007 praying for compensation to be granted to the applicants in view of the fact that the applicants have interest in the parcel of land. Negotiations took place between the parties and by a pursis dated 28.02.2012 the suit was withdrawn. He would invite the court's attention to the Memorandum Of Understanding (MOU) to submit that an understanding was arrived at Page 285 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined between the parties. During the pendency of the suit, the SRP approached the Hon'ble Supreme Court by filing Special Leave Petition challenging the order dated 27.08.2007 which was admitted. Rival claimants had filed proceedings before the Supreme Court. It was the case of the applicants that since the MOU was vitiated they filed restoration proceedings of the civil suit which was rejected by an order dated 14.08.2014.
4.1 Special Civil Application No. 14157 of 2014 was filed challenging the order of the trial court. During the pendency of the petition, the Apex Court by virtue of an order dated 26.04.2017 in Civil Appeal No. 3224 of 2010 directed the Civil court to decide the Special Civil Suit and the Land Reference expeditiously. One Jayantibhai Ramdas Patel in Special Leave Petitions No. 26400-26401 of 2012 prayed for deletion in the suit which prayer was allowed by the Apex Court. Since the civil suit was sought to be restored, and the order rejecting the application was a subject matter of challenge before this court, the land reference court by passing the impugned order lost sight of the fact that one of the claimants had already preferred an execution petition to which the present Page 286 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined applicants have lodged objection. Mr. Shah, learned Senior Counsel would submit that the present applicants ought to have been made parties in the land reference proceedings and if the compensation is adjudicated, it would cause prejudice to the applicants. He would rely on Section 53 of the Code of Civil Procedure in context of a dispute regarding ancestral property.
5. Mr. Asim Pandya, learned Senior Advocate appearing with Mr. Udayan Vyas, in application for Leave to Appeal would oppose the application on the ground that neither of the applications for leave to appeal are maintainable as they cannot be said to be persons interested. He would submit that once the suit was unconditionally withdrawn and the attempt to seek recall or review of the order had failed even upto the Hon'ble Supreme Court, the applicants are not entitled to seek Leave to Appeal. These facts have not been disclosed by the applicants in the Civil Applications and therefore the applications for leave to appeal and joining party are wholly misconceived. Reference court had not decided the issue of compensation where the applicants were parties and the high court as an appellate court could not Page 287 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined expand the scope of the original reference.
5.1 Mr. Pandya would submit that there was an abandonment of proceedings in various fora as is evident from a chart which is produced by learned counsel for the respective respondents in the present applications. He would submit that the applicants have approached by way of these applications which is nothing but gross abuse of process of law. Even otherwise the land acquisition act is a self contained code, and no applications for impleadment in such proceedings are maintainable. He would rely on a decision in the case of Muthavalli of Sha Madhari Diwan Wafk S.J. Syed Zakrudeen vs. Syed Zindasha [2009 (12) SCC 280].
6. In Civil Applications No. 3/23 and 4/23 the contention of the applicant is that he is having interest in the share of the land of which the original claimants are well aware. It is their case that as set out in the written brief, reproduced hereinbelow, that was produced during the course of hearing that Late Shri Mahendrakumar Purshottam Desai had bequeathed certain portion of land in favour of one Jayantibhai Ramdas Patel. From the chronology of dates Page 288 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined reproduced hereinbelow, it was their case that they were proper and necessary parties to the appeal in light of the civil suits filed inter se as set out in the brief note.
29.11.1991 Late Shri Mahendrakumar Purshottamrai Desai had initiated revenue proceedings against the authorities of the State Government with regard to the land in quesiton. The said revenue proceedings ultimately culminated into an order dated 29.11.1991 passed by the Gujarat Revenue Tribunal, whereby it was held that 53 Vighas and 18 Vasa land was belonging to the ownership of Shri Mahendrakumar Purshottamrai Desai.
21.3.1994 State Government preferred Special Civil Suit No. 776 of 1996 in the Court of Learned Civil Judge (Senior Division), Vadodara, whereby the above referred order passed by the Tribunal dated 29.11.1991 was challenged and it was prayed to declare that the land belonged to the State Government. The said Civil Suit came to be dismissed by the Learned Trial Court by judgment and order dated 21.3.1994.
7.5.2002 State Government preferred First Appeal No. 969 of 1994 before the Honourable High Court. The First Appeal as came to be dismissed on 7.5.2002.
Page 289 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 1.4.2006 Against the said order dated 7.5.2002 State Government preferred Civil Appeal before the Honourable Supreme Court, which came to be partly allowed, whereby the Honourable Supreme Court held that, out of 53 Vighas and 18 Vasa of land, 2 Vighas and 5 Vasa land was acquired by the State Government.
Thus, out of the total land admeasuring 128073 Sq.Mtr. (53 Vighas and 18 Vasa), excluding 5355 Sq.Mtr. (2 Vighas and 5 Vasa), the remaining land i.e. 122718 Sq.Mtr. came to the share of grandfather of the plaintiffs.
25.1.2007 The said land i.e. 122718 Sq.Mtr. came to be acquired by the State Government for public purpose by Notification dated 25.1.2007. Preliminary award of Rs. 23 crore came to be passed by the Land Acquisition Officer, out of which 81.90% share i.e. Rs. 19,23,68,564/- was received by one Jayantibhai Ramdas Patel. Land Reference Case No. 18 of 2006 was filed by Jayantibhai Ramdas Patel, seeking enhancement of compensation.
Details as regards how Jayantibhai Ramdas Patel came to be granted 81.90% share is stated as under:-
22.8.1995 On 22.8.1995 late Shri Mahendrakumar Page 290 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Purshottamrai Desai had executed a Will in favor of Jayantibhai Ramdas Patel.
Jayantibhai Ramdas Patel filed Probate Application No. 224 of 2001, which came to be allowed by the Civil Court, Vadodara and issued Probate Certificate in his favour.
2.9.2004 In the year 2003, heirs of Mahendrakumar Purshottamrai Desai filed Probate Revocation Application No. 23 of 2003, which came to be partly allowed and the Probate Certificate came to be revoked by order dated 2.9.2004.
28.5.2007 Jayantibhai Ramdas Patel filed Review Application No.169 of 2006 against the heirs of Mahendrakumar Desai, wherein the parties entered into amicable settlement, whereby it was agreed that 81.90% share of the amount of compensation would go to Jayantibhai Ramdas Patel and 18.10% would go to the heirs of Mahendrakumar Desai. Accordingly, consent decree came to be passed on 7.5.2007. Since there was some clerical error in the decree, Review Application No. 89 of 2007 was filed, wherein consent order came to be passed on 28.5.2007.
Thus, 81.90% share in the amount of compensation came in the favor of Jayantibhai Ramdas Patel.
Page 291 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 9.4.2007 Thereafter, Jayantibhai Ramdas Patel filed Special Civil Suit No.116 of 2007 against all the heirs of late Shri Mahendrakumar Purshottamrai Desai. In the said Special Civil Suit as well, the parties entered into compromise. Accordingly, consent decree came to be passed on 9.4.2007.
Thus, the heirs of Mahendrakumar Desai did not have any objection against the share of Jayantibhai Ramdas Patel, as all of them knew that Mahendrakumar Desai had executed a Will in favor of Jayantibhai Ramdas Patel on his own free will. The said order and decree has attained finality as there is no challenge to the same.
Thus, the issue regarding 81.90% share in the amount of compensation in the favor of Jayantibhai Ramdas Patel had attained finality.
2008 Thereafter, in view of the increase in the price of land, just with a view to frustrate the claim of Jayantibhai Patel in the amount of compensation payable in LRC No: 18 of 2006 and to pressurize him to enter into compromise, though the fathers of the plaintiffs had entered into a settlement with the heirs of Mahendrakumar Desai, on the basis whereof consent decree came to be passed, which has attained finality, two grandsons of Mahendrakumar Desai preferred Special Civil Suit No. 516 of 2008 Page 292 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined In the said Civil Suit, the plaintiffs had prayed for a declaration to the effect that the minor plaintiffs No. 1 and 2 have their 18.51% share or as may be determined by the Learned Trial Court in the land in question admeasuring 1,22,718 sq.mtr. It was further prayed for a declaration that, the plaintiffs have their right in the amount of compensation of the said land which was acquired by the State Government and in connection with which Land Reference No. 18 of 2006 was pending. Accordingly, it was prayed to divide the share as per the entitlement of the plaintiffs in their favor. It was further prayed for a declaration that, the grandfather of the plaintiffs namely Mahendrakumar Desai did not have any legal right to execute a will, since the suit land was a coparcener property. Accordingly, it was prayed to hold that only the plaintiffs and original defendants No. 5 to 12 and their heirs as well as defendant No. 18 to 23 are entitled to 100% share in the amount of compensation. It was further prayed to declare and hold that the orders/ decree, wherein the plaintiffs were not a party, which were passed by the Learned Civil Judge (Senior Division) Vadodara in Special Civil Suit No. 116 of 2007 and Review Application No. 169 of 2006 as well as the order passed in Review Application No. 89 of 2007, as null and void.
Page 293 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined It was further prayed to declare that, the defendant No. 1 namely Jayantibhai Ramdas Patel did not have any right to the amount of compensation on the basis of the consent decree passed, on the basis of settlement arrived at between the parties, in the proceedings of Special Civil Suit No. 116 of 2007 and Review Application No. 169 of 2006 as well as in Review Application No. 89 of 2007 filed by the original defendants No. 5 to 7. It was further prayed to direct the defendant No. 1 (Jayantibhai) to re-deposit the amount of Rs. 19,23,68,564/- to the Treasury of the Government, which the defendant No. 1 had received in Reference Case No.18 of 2006 on the basis of a Will dated 22.8.1995, wherein the defendant No. 1 had obtained probate in Probate Application No. 224 of 2001, which was revoked in the Probate Application No.23 of 2003 or in the alternative to pass a decree for recovery of the said amount from defendant No.1 with 12% interest to be paid to the share of the coparceners. It was lastly prayed to pass a permanent injunction restraining the defendant No. 1 from withdrawing the amount of compensation from the defendant No. 2 to 4 in Land Reference Case No.18 of 2006 and that the defendants No. 2 to 4 may be restrained from making payment of the said amount of compensation to the defendant No. 1.
Page 294 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 20.1.2021 The plaintiffs achieved their target by filing the said Civil Suit, in as much as, the original defendant No. 1 - Jayantibhai Ramdas Patel was pressurized to enter into consent terms dated 20.1.2021, whereby he has waived his right to additional amount of compensation to be payable in Land Reference Case. Consent terms are at Page Nos. 42 to 67. Accordingly, LRC No. 36 of 2009 came to be withdrawn by Jayantibhai Patel. The said order of withdrawal is challenged by the applicant before this Honourable Court by filing Special Civil Application No. 1392 of 2022, which is admitted by this Honourable Court vide order dated 7.3.2022 and is pending final hearing.
20.1.2021 On the basis of the said consent terms, consent decree came to be passed by the Learned Trial Court vide order dated 20.1.2021.
* Being aggrieved by and dissatisfied with the said consent decree, the applicant was constrained to approach this Honourable High Court by way of filing the First Appeal and as the applicant was not a party to the said Civil Suit, the applicant had preferred Civil Application seeking Leave to Appeal.
9.12.2022 The said Civil Application for leave to appeal came to be dismissed by this Honourable Court vide Page 295 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined order dated 9.12.2022 with cost of Rs. 5,00,000/- (Page No. 91 to 163). However, while dismissing the said Civil Application this Honourable Court has observed that if the applicant has an cause to pursue, he can take his own recourse under the law and he would know in what way to pursue the same without this court needing to spell the same out explicitly.
9.12.2022 Applicant filed SLP against the order dated 9.12.2022 which came to be dismissed by the Honourable Supreme Court vide order dated 3.7.2023, particularly having regard to the fact that the High Court has stated that the petitioner can have recourse under law in respect of the grievances that he has sought.
The Details with regard to the right and interest of the applicant in the amount of compensation to be received by Jayantibhai Ramdas Patel is stated as under:
25.7.2008 The applicant had entered into a detailed agreement with Jayantibhai Ramdas Patel, wherein the amount of sale consideration of the land between them was fixed as Rs. 30 Crores. The amount of Rs. 20 Crores was already paid to Jayantibhai Patel by the applicant herein.
Accordingly, it was agreed that, from the amount of Page 296 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined compensation received in LRC No. 18 of 2006, whatever excess amount of compensation is received by Jayantibhai Patel, the same shall be paid to the applicant herein.
2017 As Jayantibhai Ramdas Patel appeared to be not acting in consonance with the above referred agreement dated 25.7.2008 entered between him and the applicant and as the present applicant was being kept in the dark with respect to the proceedings going on before the various Courts and as Jayantibhai Patel was trying to act against the said agreement dated 25.7.2008, the applicant had preferred a Civil Suit No.372 of 2017, wherein it was prayed that in view of the settlement agreement dated 25.7.2008 executed between the applicant (plaintiff therein) and the defendant therein, the defendant No. 1 - Jayantibhai Ramdas Patel is not entitled to receive the amount of compensation to the extent of 81.90% as per consent decree passed in Special Civil Suit No.116 of 2007, with respect to the land in question but the plaintiff is entitled to receive the said compensation to the extent of 81.90% and that the said amount be paid to the plaintiff and the amount of compensation should not be released in favor of the defendants or any other person. It was further prayed to declare that the Jayantibhai Patel defendant No.1 is bound to act in accordance with the agreement dated 25.7.2008. It is pertinent to Page 297 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined note that in the said Special Civil Suit, all the heirs of late Shri Mahendra Parshottamrai Desai, including the fathers of the original plaintiffs of Special Civil Suit No. 516 of 2008, are also subsequently joined as defendants. (Page No. 78 to
90) 6.1 Mr. Asim Pandya, learned Senior Advocate who would adopt similar contentions as in the case of applications for leave to appeal would submit that the MOU relied upon by the applicants which was a subject matter of challenge in First Appeal No. 7674 of 2021 was decided against the applicants which again is not brought on record by the applicants.
7. Mr. Tarak Damani, learned advocate appearing for the original claimants would rely on a decision of the Apex Court in the case of Prayag Upnivas Awas Evam Nirman Sahahkari Samiti Ltd. vs. Allahabad Vikas Pradhikaran [AIR 2003 SC 2302] and in the case of Muthavalli of Sha Madhari Diwan Wafk S.J. Syed Zakrudeen vs. Syed Zindasha [2009 (12) SCC 280] to oppose the application.
8. Having conjointly considered the submissions of learned Page 298 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined counsel of the respective parties in the applications for leave to appeal and the applications for joining party, the chart tendered by the learned counsel Mr. Udayan Vyas for the respondents in the respective applications needs to be reproduced as under:
Civil Suit Proceedings under Land acquisition Act Date Proceedings Status Date Proceedings Status Suit bearing Withdrawn The Applicants Objections Special Civil Suit uncondition had filed rejected.
25/10/ no: 521 of 2007 ally by the 12/07 objections under 2007 was filed by plaintiffs on /2007 Section 9 of Partners of 28/02/2012. the Land Reliable Acquisition Construction Co. Act, 1894 viz. Dharmendra before Special Jamnadas Shah & Land Acquisition Mukesh Jamnadas Officer. Shah (Applicants herein) against 11 The Applicants Dismissed defendants have preferred on including Jayantilal Special Civil 02/02/200 Ramdas Patel & 25/04 Application: 9 qua the Special Officer /2008 6686 of 2008 applicants Land Acquisition. challenging the . 22/09/ Exhibit 5 Dismissed order dated 2008 application filed 4/12.2.2007- 04/12/200 seeking interim 2008 of the 9 disposed injunction in Special Land of finally. Special Civil Acquisition Suit:521 of 2007, Officer, Circle 1, was dismissed Vadodara through a detailed whereby the order Objections filed by Applicants Appeal from Dismissed were rejected by Order as not the SpLAO, (AO/12/2009) was pressed. Circle 1, preferred against Vadodara. the order of Page 299 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined rejecting the 11/02 The Applicants Disposed Interim Injunction /2010 have preferred of on Application in Diary Civil Appeal 26/04/201 SCS/521/2007 No: No. 3156 of 7, dated 22/09/2008. 4671/ 2010 The said AO was 2010 challenging the 04/05/201 not pressed by order dated 7, Applicants and 02/02/2009 SCS/521/2 same was (where the 007 is disposed of with petition stood deleted direction to the dismissed qua from the Trial court to the applicants) order as decide the suit in wrongly proceedings SCA/6686/2008 mentioned expeditiously. before the . 01/11/ An application Dismissed Hon'ble Apex seeking recall of on Court. 2012 order dated 14/08/2014 08/02 Original Dismissed 28/02/2012 /2010 Plaintiffs have as through which the Diary withdrawn Civil Withdraw Special Civil No. Appeal No. n on Suit: 521 of 2007 4171/ 3279 of 2010 03/04/201 was 2010 pending before 2 unconditionally the Hon'ble withdrawn, was Supreme Court. filed. Along with The said Civil the said Recall Appeal/3279/2 Application, an 010 was application preferred seeking against the condonation of order of delay of 7 months SCA/6686/2008 (Approx.) was also dated preferred. 04/12/2009 11/09/ SCA/14157/2014 Dismissed which was a 2014 was filed by a final order. challenging the reasoned Hence, the Civil order dated judgment Appeal No. 3156 14/08/2014 on of 2010 which
whereby delay 17/03/2023. was against the condonation order dated application was 2/2/2009 would rejected by the not survive as trial court. the order dated Notice was issued 2/2/2009 stood in merged in the SCA/14157/2014 final order dated without granting 4/12/2009.
any interim relief. 14/05 The Dismissed
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This /2010 reference court
SCA/14157/2014. has rejected an No interim application filed relief/stay was by the applicants granted by this in LAR/35/2009 Hon'ble Court in with a prayer to that petition. join them as party 02/05/ SPECIAL LEAVE Dismissed respondent. The 2023 on PETITION (CIVIL) said application 02/05/2023 was rejected Diary No(s).
vide order Exb.
15500/2023 has 11 in
LAR/35/2009.
been preferred
13/01 The Dismissed
against the order
/2011 Hon'ble High
dated 17/03/2023 Court of Gujarat
has dismissed
in
the petition
SCA/14157/2014. bearing
SCA/10033/201
0 challenging
the order dated
14/05/2010
passed by
reference court
in LAR/35/2009.
09/12 The Dismissed
/2011 Hon'ble High
Court of Gujarat
has dismissed
the
LPA/347/2011
preferred
against the
order dated
13/01/2011 in
SCA/10033/2010
.
01/12 The
/2015 application
seeking recall of
the order dated
03/04/2012
passed by the
Hon'ble
Supreme Court
in Civil Appeal/
3279/2010 was
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dismissed.
04/04 An application Dismissed
/2022 seeking review on
of the order 07/04/202
dated 2
05/03/2022 in
LARs 37, 35 &
55/2009 was
preferred by
Applicants.
__/ Objections are Pending
08/20 filed by Mukesh
22 J. Shah & Anr. in
Special
Execution
(L.A.R.) No. 19
of 2022 - the
execution
application
filed by Rakesh
M. Desai
01/09 Hon'ble Dismissed.
/2022 Supreme Court
has dismissed
the modification
MA in
CA/3156/2010
seeking
modification of
order dated
04/05/2017.
One more MA
being Diary No.
1144 of 2023
was filed
seeking
modification of
order dated
01/09/2022. The
said application
is disposed of as
withdrawn on
10/04/2023.
15/09 Civil Pending
/2022 Application No.
2321/2022
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(Seeking Leave
to Appeal) in
First Appeal/
23/12 28415/2022
/2022 against the LARs
37/2009 is filed.
Civil
Application No.
23/12 99/2023
/2022 (Seeking Leave
to Appeal) in
F/First Appeal/
42671/2022
against the
LARs 35/2009
is filed.
Civil
Application No.
100/2023
(Seeking Leave
to Appeal) in
F/First Appeal/
42652/2022
against the
LARs 55/2009
is filed.
CA/3/2022 Pending
23/12 (FOR JOINING
/2022 PARTY) In
R/FA/21/2023
is filed by
23/12 Mukesh J. Shah
/2022
CA/3/2022
(FOR JOINING
PARTY) In
R/FA/22/2023
06/01 is filed by
/2023 Mukesh J. Shah
CA/1/2023
(FOR JOINING
PARTY) In
R/FA/11/2023
is filed by
Mukesh J. Shah
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8.1 What is evident from reading the chart is that as far as Mukesh Jamnadas Shah is concerned, in the civil suit proceedings, application to seek recall and restoration was dismissed on 14.08.2014 and even the petition namely Special Civil Application No. 14157 of 2014 was dismissed by a reasoned order which was challenged before the Apex Court and which was withdrawn to file civil suits which are pending adjudication before this court.
8.2 On the front of the land acquisition proceedings, the applicants had filed objections under Section 9 of the Land Acquisition Act before the Special Land Acquisition Officer which were rejected on 12.07.2007. Special Civil Application No. 6686 of 2008 was preferred challenging the order of the Land Acquisition Officer which was dismissed on 02.02.2009.
Civil Appeal No. 3156 of 2010 was filed challenging the order of the High Court which was disposed of on 26.04.2017. Civil Appeal No. 3279 of 2010 which was preferred against the order of Special Civil Application No. 6686 of 2008 did not survive. On 14.05.2010, an application which was filed for Page 304 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined being joined as parties in Land Reference No. 35 of 2009 was also dismissed. Challenge to this order failed inasmuch as Special Civil Application No. 10033 of 2010 was dismissed.
Letters Patent Appeal against the order of the learned Single Judge too were dismissed. From the chart therefore it is apparent that the proceedings initiated by the applicants in context of the present land acquisition proceedings in the civil court as well as before the land acquisition courts had attained finality which are not even disclosed by the applicants in the applications for being joined and/or seeking leave to appeal.
8.3 It will be apt to reproduce the timeline of the proceedings as set out in the table from the affidavit-in-reply filed by respondent no. 6 in Civil Application No. 1 of 2023.
"6. The following emerges from the above- narrated proceedings time-line.
1. The Applicants had filed Special Civil Suit No. 521 of 2007 which was unconditionally withdrawn by the Applicants on 28/2 / 2012 The order dated 28/2/2012 clearly stated that the Applicants were made aware by the learned trial judge regarding the consequences of the unconditional Page 305 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined withdrawal. The Opponents herein had also raised 2 objections to the said withdrawal and contents of the pursis have not admitted.
2. Moreover, the Applicants have withdrawn Civil Appeal No. 3279 of 2010 preferred against order dated 04/12/2009(final order in the SCA) passed in Special Civil Application No. 6686 of 2008. The said petition was filed challenging the rejection of the Objections filed by the Applicants under Section 9 of the Land Acquisition Act, 1894.
3. The withdrawal of Civil Appeal No. 3279 of 2010 was sough to be restored by recalling the withdrawal order. The saic application for recall was dismissed by the Hon'ble Apex Court on 01/12/2015. Therefore, the law does not permit to re-adjudicate the issues which are consciously abandoned/withdrawn and not permitted to be re-opened by the highest court of the nation.
4. It is relevant to state that the applicants have preferred Civil Application for Joining Party in FA/21/2023 arising out from LAR/37/2008. The said First Appeal is preferred by the State of Gujarat. This clearly indicates that the applicants having failed in establishing any rights in any of the proceedings till date, try to join the lis for oblique motive by filing frivolous applications. It is apt to refer to the observation made by the Hon'ble High Court of Delhi, in the case of Awaneesh Chandra Jha V. Anil Prasad Nanda, CS(os) / 161 / 2022 dated 04/07/20222, "A court is not a casino for a litigant to place a bet masquerading as a legal claim; and to Page 306 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined later withdraw from the proceedings if he finds he has a losing-hand. No legal proceedings may be initiated by a litigant by way merely of a gamble as if placing a wager, from which the litigant may conveniently withdraw at any time, if matters are not going his way. A court is a forum for laying serious, bona-fidé claims, even if they turn-out to be legally untenable or meritless upon conclusion of the process. A court is not a place for fraudulent game-playing by dishonest litigants, to attempt to get judicial imprimatur for false claims. This derives from the inexorable, immutable and overarching principle that fraud or fraudulent conduct in a court of law vitiates all curial proceedings." In the present case, the applicants have not only withdrawn their suit proceedings but also the proceedings filed pursuant to the rejection of their application under section 9 of the Land Acquisition Act, 1894. Therefore, the captioned leave to appeal may be dismissed with exemplary cost.
7. Not succeeded in any application seeking impleadment filed in the Land Reference Proceedings:
The Applicants were well-aware about all the proceedings which were filed in connection with the land in question. In fact, the applicants have preferred two applications in LARs to join the land reference. The same have been dismissed by the Hon'ble High Court of Gujarat as well as Hon'ble Supreme Court of India. These facts are completely supressed by the applicants in the captioned application.Page 307 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
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8. Order passed in review application not challenged so far and the fact suppressed in the application to leave to appeal:
The Applicants have preferred an application seeking review ( a third party review application) of the order dated 5/3 / 2022 in land reference cases which is also the impugned order in captioned proposed First Appeal. The said application was disposed of with clear observations that the Applicants do not have any locus to file any application in the Land Acquisition Proceedings. The said order and the findings have not been challenged by the applicant before any competent forum through appropriate legal proceeding. Review application by the parties to the original judgment and decree and review application by third party stand on different footings. A third party if aggrieved by any judgment or decree he has two options namely filing a review application and application for leave to appeal. If the third party chooses to file review application, he cannot thereafter file a leave to appeal. The applicant is required to challenge the order passed in review application by appropriate proceeding. Both remedies are incongruous to the settled law.
9. No rights or interest of the Applicants would be prejudicially affected:
Arguendo, assuming without admitting, that the Agreement to Sell dated 20/05/1988 creates some right or interest in favour of the Applicants, in that case, upon crystallising such rights and interests from competent court by filing appropriate legal proceedings, if available, the Applicants can recover the amount from concerned parties. Therefore, the Applicants cannot be considered in any manner prejudicially affected by the Page 308 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Award/Order dated 05/03/2022. Even otherwise the applicant had unsuccessfully moved the reference court under Sections 18 or 30 of the Land Acquisition Act, 1894 where land reference cases against the award dated 31/12 / 2008 were pending and did not succeed till the Hon'ble Supreme Court. In fact, the issue with regards to joining the reference is already decided against the applicant by the Hon'ble High Court of Gujarat in SCA/10033/2010 as well as LPA / 347 / 2011 and also in SCA/6686/2008 and by Hon'ble the Supreme Court in CA/3156/2010 and CA/3279/2010. Hence, the applicant cannot through the captioned application, resurrect the issue which has already attained finality.
10. Suppression of material and relevant facts by the Applicants:
The suppression of material and relevant facts disentitles the Applicants to get any relief in Leave to Appeal.
a. The Applicants have not even stated the facts regarding withdrawal of Civil Appeal no. 3279 of 2010 and various other proceedings where same prayers have been sought. More particularly, Hon'ble Apex Court has passed an order on 01/09/2022 in MA/1178/2022 in CA / 3156 / 2010 wherein the application seeking inter alia, stay on disbursement was dismissed This fact has not been stated in the captioned application though the captioned application was filed on 15/9 / 2022 i.e. after the said order of the Apex Court. The applicants have not stated all relevant facts and produced all the relevant documents. It is trite law that the equitable and discretionary jurisdiction may not be exercised in favor of the litigant who has suppressed or stated Page 309 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined incorrect facts. The captioned application falls in the realm of equitable and discretionary jurisdiction. Therefore, the principles enunciated by the Hon'ble Apex Courts with reference to equitable and discretionary jurisdiction vis a vis conduct of the parties apply in the present proceeding. In a catena of Judgments Hon'ble the Apex Court held that, the High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. (emphasis supplied.) [Kindly Refer: Prestige Lights Limited V. State Bank of India reported in 2007 (8) SCC 449] In a case of Minaxi Bhatt V. State of Gujarat (LPA/454/2013), Division Bench of this Hon'ble Court has observed that, the principle which can be deduced from the above referred decisions is that the party who seeks relief from the High Court in exercise of its equitable jurisdiction under Article 226 of the Constitution of India must come with all bona fides, must make true, candid and full disclosure of all the relevant facts. Its conduct must be above board. There should be no attempt by a party to mislead the Court. The petitioner is under an obligation to collect all material facts with due care and attention and he will not be Page 310 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined heard to say that facts were not within his knowledge although the same could have come to his knowledge had he taken due care and had made efforts to find them out. The High Court will be fully justified in declining exercise of extraordinary jurisdiction in favour of a party who is guilty of suppressio veri and suggestio falsi or who makes an attempt to mislead the Court. (emphasis supplied.) The above observations though made in the context of a petition under Article 226 of the Constitution they apply to every discretionary power exercised by this court whether under civil, criminal or special jurisdiction. The applicants have suppressed by not stating that they have unsuccessfully tried to join the LAR / 35 / 2011 which was dismissed by the Reference Court as well as this Hon'ble Court.
The order dated 13/1 / 2011 in SCA/10033/2010 attained finality as the LPA / 347 / 2011 filed against the said order was dismissed (for default) in 9/12 / 2011 .
11. Abuse of Process of Law:
The applicants are guilty of suppression of material facts, approaching courts and authorities with uncleaned hands, re- agitation of similar issues in simultaneous proceedings. Hence, the facts indicate that this application is nothing but a gross abuse of process of law. It is trite law that abuse of court process creates a factual scenario where a party is pursuing the same matter by two court process. In the present case, the applicants have preferred multiple proceedings before multiple fora seeking similar relief. Just to provide the lists of the proceedings filed wherein stay on Page 311 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined disbursement of amount or stay the implementation of order dated 05/03/2022 is sought, 1. Review Application before learned Trial Court, 2. Application for recalling of the Order dated 26/04/2017 before Hon'ble Apex Court, 3. Objections filed in Special Execution proceedings filed by Respondent no.3 before learned Trial Court. It is trite law that re- agitation/multiple-litigations on the basis of spurious claim and for same relief is gross abuse of process of law. Therefore, such abuse of process needs to be curbed by dismissing the Leave to Appeal in limine with exemplary cost. [Please refer to Advocate General, State of Bihar versus M.P. Kair Industries AIR 1980 SC 946 para 7,10,12; Hindustan Zinc Ltd versus Vijay Singh & Co 1994(1) GLR 161 para 26,28; R. Sadagopan versus K Rajaiah 2009 ILR (Kant) 3302 (para 17,18)]
12. In response to paragraph no. 1 of the application, I state that the contents therein are formal in nature and hence, I do not have any comments to offer. I state that the applicants are neither necessary nor proper party in the land acquisition proceedings.
13. In response to paragraph no. 2 of the application, I deny the facts stated therein. I state that from the very inception, the contents of the withdrawal Purshish filed by applicants herein, was not admitted. In fact, in the order dated 28/2 / 2012 in SCS / 521 / 2007 , it is clearly recorded by the learned Court that I have taken objection to the said withdrawal. Therefore, it is not only incorrect but misleading to state that ...in view of an understanding having been arrived at, the suit was withdrawn... I categorically deny the Page 312 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined contents stated therein.
14. In response to paragraph no. 3 of the application, I deny the facts stated therein. I state that the applicants so as to misled the court provides completely incorrect facts as much as it mentions "Respondent no. 9 herein had approached the Hon'ble Supreme Court by way of a Special Leave Petition, challenging the Order of the Hon'ble High Court of Gujarat dated 27.08.2007 in Special Civil Application 20703/2007, which came to be admitted and was converted to Civil Appeal 3224 of 2010". I state that Respondent no. 9 of the present application is 'Commander' State Reserve Police Force Juth- 1'. I further state that I have accessed the status report of Civil Appeal No. 3224 of 2010 from the website of Hon'ble Supreme Court, the said Civil Appeal was filed by one Jayanti Ramdas Patel challenging common order dated 04/12/2009 passed in SCA/2923/2009 and SCA/1592/2009 by this Hon'ble Court. A copy of the status report of Civil Appeal No. 3224 of 2010 is annexed as Annexure - R2.
15. In response to paragraph no. 4 of the application, I deny the facts stated therein. I state that between 2014 to 2022, the applicants have not pursued the Special Civil Application 14157 of 2014. In fact, no interim relief has been granted in favour of the applicants in the said petition by this Hon'ble Court. Therefore, it is safe to state that the pendency of the said petition cannot be pleaded as ground to file the captioned application seeking leave to appeal. It is relevant to state that on 17/03/2023, SCA 14157 of 2014 has been dismissed. A copy of Page 313 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined the order is annexed as Annexure - R3.
16. In response to paragraph no. 5 - 11 of the application, I deny the facts stated therein. I state that most of the facts stated therein are contrary to the orders passed by the Hon'ble Supreme Court and/or misleading. As stated, the applicants have preferred Civil Appeal No. 3279 of 2010 against the order dated 04/12/2009 passed in SCA/6689/2008 (arising out of rejection of Section 9 application) before the Hon'ble Supreme Court. The said appeal was withdrawn on 3/4 / 2012 The applicants thereafter filed an application seeking recall of the order of withdrawal dated 3/4 / 2012 The said recall application was dismissed by the Hon'ble Supreme Court on 1/12 / 2015 The applicants have wilfully and deliberately supressed these facts. I further state that the applicants have filed Miscellaneous Application in Civil Appeal No. 3156 of 2010, on 1/9 / 2022 Hon'ble Supreme Court was pleased to dismiss the said application. The applicants have not supplied the said order passed by the Hon'ble Supreme Court. This also shows the malafide and oblique intention of the applicants. I state that the deletion of Special Civil Suit no. 521 of 2007 from order dated 26/04/2007 was already agitated unsuccessfully by the applicants before the Hon'ble Supreme Court. It is therefore, not permissible under the law to agitate the grievance which has already attained finality."
9. As far as applications for joining party by Shankarbhai Keshavlal Patel are concerned, the claim of being parties Page 314 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined interested in the compensation is on the basis of an MOU dated 25.07.2008 as an assignee of rights of one Jayanti Ramdas Patel. From the arguments made on behalf of respondents no. 6 & 7 of the connected applications, it is evident that the will of Shri Mahendra Desai was forged. Even after passing of an award by the Land Acquisition Officer the applicants did not come forth to claim compensation. A suit was filed in the year 2014 where too the MOU was never mentioned. A leave to appeal was filed against the concerned decree in Civil Suit No. 516 of 2008 which this court by an order dated 09.12.2022 rejected. A Division Bench of this court in Civil Application No. 1826 of 2021 in First Appeal No. 7674 of 2021 at the hands of the applicant categorically mentioned that it was a clear design on the part of said Jayantibhai Ramdas Patel in context of the proceedings and it will be apt to reproduce paragraphs no. 13 to 15 of the order in the civil application.
"13. This appears to be a clear design on the part of Mr.Jayantibhai Ramdas Patel who per-force has gone out of the compromise by saying that he will not be asking for any share while introducing possibly on his behalf, the opponent Nos.21 and 24 in the original suit. It is also noteworthy that the Division Bench of this Court had directed in Special Page 315 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined Civil Application No.1592 of 2009 and allied matters the deposit of the entire amount which had been given to him by the Land Acquisition Officer. However, out of that Rs.33 Crore that he received, only Rs.2 Crore had been thereafter deposited by him because of the Apex Court's order. When he challenged the said decision of this Court in Civil Appeal No.3224 of 2010, the Apex Court stayed the order of the Division Bench and directed the suit to be proceeded within a period of six months. Unfortunately, in that suit the compromise had been arrived at where the choice possibly between the family was of devil or the deep sea and hence, it has permitted him to retain the amount which he had with him as there is no mention of such amount which otherwise he was directed to be refunded and we have confirmed this aspect from the senior advocate, Mr.Asim Pandya. After his retaining this amount, 70% share has been taken by the two outsiders whom the plaintiffs themselves have allowed to enter because of their political clout. On noticing actual purport of such action, the Court is much at pain to note that this litigation of number of years is stretched beyond imagination by those who are court birds and such protracted litigation has capacity to tire the genuine litigants who then fall prey to such temptation of ending the disputes as has happened in the instant case. It is though ostensibly a genuine and permissible compromise under the law. On reading between the lines, prima facie, it seems to be the attempt largely to wriggle out of the clutches of such elements, possibly born out of misery, helplessness and frustration as no light of justice at the end of long tunnel of litigation probably was visible. However, the applicant being that cause, essentially, he surely is not the party which deserves any entertainment to allow him the Page 316 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined leave to prefer appeal and question the decree. If he has any cause to pursue, he can take his own recourse under the law and he would know in what way to pursue the same without this court needing to spell the same out explicitly.
14. Resultantly, this application is rejected in view of the foregoing discussion with the cost of Rs.5,00,000/- (Rupees Five Lakh Only) which shall be paid to the heirs of late Mr.Mahendrakumar Purshottambhai Desai.
15. None of the findings and observations shall prejudice the right of the litigants nor would they shall come in the way of the parties in pending litigation."
9.1 This therefore shows the intention of the applicants to revive a proceeding which had otherwise attained finality even without showing the litigation in the leave to appeal.
Even otherwise as held by the Apex Court in the case of Muthavalli of Sha Madhari Diwan Wafk S.J. Syed Zakrudeen (supra), of which paras 11 & 12 are as under, that the Land Acquisition Act is a self contained code.
"11. `The Act' is a self-contained code. It not only provides for the mode and manner in which the acquisition proceedings are initiated but also the mode and manner in which the proceedings for making an award as also the mode and manner in which an application for reference by a person dissatisfied therewith is to be made.Page 317 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024
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12. A reference may be prayed for by a person interested in the proceeding. Ordinarily, he should be a party to the proceedings for making an award. He has to file an application for making a reference before the Collector of the District within the time specified thereunder. Such an application must be in writing and the reference to the civil court which may be prayed for before the Collector would be in regard to his objection as regards measurement of land, the amount of compensation, the person to whom it is payable or the apportionment of the compensation amongst the persons interested. The Reference was made only in respect of the amount of compensation. No reference has been made in regard to the right of persons to whom it was payable or apportionment of compensation amongst the persons interested. The claim of the first respondent has been noticed by us. He has laid his claim on the title of the property. He has prayed for proper and effective implementation of the decree passed by a civil court. He alleged mismanagement of the Wakf property by the first appellant."
9.2 The applicants cannot claim a right on the basis of the MOU which is no document in the eye of law and the conduct of the applicants become apparent that according to them if the MOU was in existence since 25.07.2008, the applicants did not raise any claim on the basis of the MOU and they filed a separate land reference being Land Reference No. 36 of 2009 which was subsequently withdrawn. They then filed a separate proceeding namely Special Civil Application No. Page 318 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined 1392 of 2022 where the court on 04.02.2022 held as under:
"In this Special Civil Application, the Memorandum of Understanding dated 25.7.2008 (Notarized copy) has been tendered under which it is stated that deceased Mahendrakumar Parshottambhai Desai and the assignor were the owner of the land and the assignee had financially helped the assignor in installments as stated in Paragraph 4A of the said Memorandum of Understanding and the assignor was supposed to reimburse the same from the compensation amount of Rs.19,23,67,000/- which the assignor had taken from the assignee from time to time. Prima facie, this document would fall within the four corners of Clause (e) of Sub-Section 1 of Section 19 of the Registration Act, 1908. As to whether the said document would attract the stamp duty under the Gujarat Stamp Act,1958 under Schedule-I and if so, what would be the stamp duty, has to be ascertained. Hence, we direct Notice to Mr.K.M.Antani, learned Assistant Government Pleader, who is on the virtual Court.
Learned counsel appearing for the petitioner shall serve a copy of the Special Civil Application along with all annexures to the learned Assistant Government Pleader.
Re-list this matter on 14.2.2022"
9.3 The order dated 09.12.2022 passed by the Division Bench of this court in Civil Application No. 1826 of 2021 which also took note of suppression of material facts Page 319 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024 NEUTRAL CITATION C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024 undefined regarding the proceedings in which the MOU was not even referred to by the applicants, was challenged before the Apex Court. On 03.07.2023, the Apex Court dismissed the SLP, however, cost of Rs.5 lakhs was set aside.
10. All these reasons indicate that these applications filed at the instance of the applicants either to seek permission for leave to appeal and/or for joining party are nothing but attempts to have a piece of the pie in terms of enhanced compensation and therefore an attempt to join and/or seek leave to appeal.
11. For all the above reasons, these applications being applications for leave to appeal as well as joining party stand rejected. No costs. Notices are discharged.
(BIREN VAISHNAV, J) (MAUNA M. BHATT,J) DIVYA Page 320 of 320 Downloaded on : Tue Jan 30 20:34:57 IST 2024