Gujarat High Court
Spl.Laq vs Noorjaha on 26 August, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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FA/3436/1998 8/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3436 of 1998
With
CROSS
OBJECTION No. 33 of 2001
With
CIVIL
APPLICATION No. 9736 of 2010
In
FIRST APPEAL No. 3436 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SPL.LAQ
OFFICER & 1 - Appellant(s)
Versus
NOORJAHA
AMIRALI SAIYAD - Defendant(s)
=========================================================
Appearance :
GOVERNMENT
PLEADER for
Appellant(s) : 1 - 2.MS SEJAL K MANDAVIA for Appellant(s) : 2,
MR
AJ PATEL for Defendant(s) : 1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 26/08/2010
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) With the consent of the learned advocates appearing for both the sides, main appeal itself with the cross objection as well as civil application are taken up for final hearing.
Short facts of the case appear to be are that for the acquisition of the land at Village: Thasara for establishing Narmada Canal Residential Colony, Notification under Section 4 of the Land Acquisition Act (herein after referred to as 'the Act') was published on 27.10.1989. The Notification under Section 6 of the Act was published on 10.8.1990. The Land Acquisition Officer after hearing the claimant passed the award dated 25.1.1991 under Section 11 of the Act; whereby, he granted compensation at Rs.650 per Are. The claimants were not satisfied with the compensation awarded and therefore they raised the dispute which ultimately came to be referred to the Reference Court for adjudication. The land owner / original claimant prayed for compensation at Rs.15,000/- per Are of the land and Rs.12,000/- per mango trees, Rs.5,000/- per ucaliptus tree, Rs.500/- per Ambali tree and Rs.500/- for Almond Tree total Rs.18000/- per Are. The Reference Court ultimately passed the judgment and award dated 3rd December, 1997; whereby, it awarded compensation and assessed the market value of the land at Rs.1,920/- per Are and the compensation already paid was to be given set off. The Reference Court also awarded solatium but without interest. The Reference Court also awarded 12% rise increase under Section 23(1A) of the Act but without interest. Additionally, the Reference Court awarded interest @ 9% and 15% p.a. as per the statutory provision from the date of taking over of the possession until the actual payment is realized. It is under these circumstances that the present appeal before this Court has been preferred by the Special Land Acquisition Officer Acquiring Body being First Appeal No.3436 of 1998.
We may also record that the original claimant has preferred the Cross Objection being No.33 of 2001 claiming the additional compensation of Rs.1,000/- more per Are in comparison to the compensation awarded by the reference Court. To say in other words, the compensation prayed by the original claimant in the Cross objection is on the basis of the market value of the land at Rs.2,920/- per Are.
We have heard Mr.Pandya, learned AGP appearing for the Special Land Acquisition Officer / Acquiring Body and Mr.Jayesh Patel for Mr.A.J.Patel for the original claimant.
We have considered the evidence on record contained in the paper book. We have also gone through the judgment and the award passed by the Reference Court.
It appears from the reasons recorded by the Reference Court and evidence on record that for acquisition of another agricultural land at the very village: Thasara by Gujarat Industrial Development Corporation (For the sake of convenience it shall be referred to as 'GIDC') pursuant to the Notification under Section 4 of the Act, the consent award was passed under the Act and in the said consent award, price was fixed at Rs.1,482 per Are. No evidence has been led on behalf of the Special Land Acquisition Officer before the Reference Court for showing that the nature of the land was different either by fertility or the location or otherwise. Under these circumstances, the valuation assessed of the agricultural land of the very village could validly be taken into consideration for the purpose of assessing the market value of the land by the Reference Court and the same was in-fact considered by the Reference Court. However, it appears that the Reference Court has deducted 10% of the amount from the valuation which was fixed in the above referred award in respect to the acquisition made by GIDC. The reason given by the Reference Court in the impugned judgment is that the price was fixed with consent and therefore, in a matter of consent, award 10% deduction would be appropriate. We find that such an approach on the part of the Reference Court is erroneous in as much as there is no basis for making deduction of 10% without there being any proper valid reason for the material on record. On the contrary, it appears from the perusal of the consent award vide clause No.7 that the amount of Rs.1,482/- is fixed as the market value inclusive of solatium and the additional compensation. Such aspect is totally lost sight of by the Reference Court while relying upon the consent award in respect of the acquisition of the land by GIDC for industrial estate. Therefore, it appears to us that if Rs.1,482/- is taken as the basis by relying upon the consent award, 30% solatium would be required to be deducted which would be approximately Rs.444/- therefore, valuation would come to Rs.1,040/-. Out of the said amount, if 12% is further reduced for 3 years i.e. from the date on which the notification under Section 4 of the Act was published on 21.2.1984, whereas the date of the handing over possession is 17.1.1987, hence for the first year, such reduction would come to Rs.124/- therefore, the net amount would be Rs.916/-, for the second year, reduction @ 12% would come to Rs.109 therefore, the net amount would be Rs.807/-, for the third year 12% would come to Rs.96/- therefore, consequently, net amount would be Rs.711/- for the purpose of rounding of the figure and keeping in view that there was gap of about 1 month less, in the said span of 3 years, Rs.715/- can be considered as valuation ascertained in the consent award excluding the solatium and the additional increase @ 12% per annum under Section 23(1A) of the Act. It is an admitted position that the said award was passed in respect to the land for which, the Notification under Section 4 of the Act was published on 21.2.1984; whereas, in the present case, notification has been published on 27.10.1989, therefore, it is after 5 years and 8 months, for the present acquisition, the notification under Section 4 of the Act has been published.
It is by now well settled that the rise of market value by way of appreciation is to be considered at the rate of 10% per annum; whereas, the Reference Court has committed an error in treating such rise at 8% per annum. If 10% rise is taken into consideration then rise would be 57% higher than the valuation of the land ascertained earlier in the year 1984. 57% rise of Rs.715/- would come to Rs.407. Therefore, the valuation in the year 1989 of the land would be total Rs.1,122/-. If the aforesaid amount is rounded of, it would be Rs.1125/-. As against the same, the assessment made by reference Court is at Rs.1,920/- which appears to be erroneous.
Learned counsel appearing for the original claimant did raise the contention that after the acquisition of the land by GIDC in the year 1984, it has allotted the land at Rs.33/- per sq.mtrs. to the various industries for establishing the industrial estate. He submitted that Rs.33/- is taken into consideration, the valuation shall be Rs.3,300/- per Are. It is also contended that the land is not sold by GIDC to the industrial enterprises but is given on lease basis therefore, the submission was that if the said aspect was taken into consideration, the valuation based on the consent award would be too less therefore, it was submitted that the reference Court has committed an error in assessing the market value and the compensation is required to be awarded as prayed in the cross objection.
Even if the contention is taken into consideration for the sake of examination, it appears that price of industrial land after deduction of the road, common facilities and after creation of an infrastructure cannot be treated at par with acquisition of agricultural land. In normal circumstances, even if the land is to be developed by establishing the industrial estate, there will be reduction of about 30% and thereafter the net land would be available by way of plotting. Further, in industrial estate, basic infrastructure like drainage, water supply, electricity are also to be made available. Such expenses are also taken into consideration, if the parity is to be traced with the land alloted by GIDC on lease basis. No such facts and figures are available on record nor any evidence was led before the reference Court. Therefore, it appears that the contention of giving parity to the present land after the land alloted by GIDC in an industrial estate cannot be accepted. Hence, the contention deserves to be rejected.
There was no other evidence available on record before the reference Court for any other sale instances or yield method. It is true that evidence was led to the effect that in the nearby area, industrial estate has been established by GIDC and the said factum is an admitted position in as much as GIDC has established the industrial estate in the same village: Thasara. Therefore, keeping in view the said aspect, we find that instead of Rs.1,125/- as the market value, 5% additional increase may be considered. Then the said figure would come to approximately Rs.55/-. Hence, the just and proper market value would be Rs.1,180/- per Are.
In view of the aforesaid observation and discussion, the fixation of the market value by Reference Court at Rs.1,920/- is erroneous therefore, it deserves to be modified. Hence, the finding to that effect for assessment of market value exceeding Rs.1,180/- deserves to be quashed and set aside. We find that appropriate market value of the land under acquisition would be Rs.1,180/- per Are.
It was contended by the learned counsel appearing for the original claimant that the interest has not been awarded on the solatium by the Reference Court and the interest has also not been awarded on 12% increase by the Reference Court. He submitted that there is an ex-facie error committed by the Reference Court which may be interfered with by this Court in the appellate jurisdiction.
An examination of the said contention shows that at para Nos. 4 & 5 of the operative portion, language has been used by the Reference Court without interest but the same is for the purpose of calculating the amount of solatium @ 30% on the market value assessed and for considering the increase @12% as per Section 23(1A) of the Act. In para 6 of the operative portion, the Reference Court has already awarded interest @ 9% for the first year and 15% for second year from the date of taking over of the possession until the amount is realized. It is on account of the aforesaid operative para Nos. 4,5, and 6 of the operative portion of the award that the misconception has been created.
We find that in any land reference case, once the reference Court takes the view and a particular amount is fixed as market value, the deduction may be available on the amount already paid by way of compensation to the land owner as per the award by the Special Land Acquisition Officer. So far as solatium @ 30% and the increase @ 12% as per Section 23(1A) of the Act is concerned, the same is by way of statutory consequence and it must follow in any award passed by the Reference Court in normal circumstances. If the said amount has remained unpaid, the interest would consequently follow. Therefore in order to clarify the position, we find it appropriate to order that :
(A) The market value of the land shall be Rs.1,180/- per Are but the compensation already paid shall be given set off.
(B) Additionally, the claimant would be entitled to increase as per Section 23(1A) and would also be entitled to the solatium @ 30% as per Section 23(2) of the Act.
(C) The claimant shall also be entitled to interest @ 9% for the first year and 15% for the subsequent years on all the amount unpaid from the date of taking over the possession until the amount is actually paid and/or deposited, whichever is earlier.
The judgment and the award passed by the Reference Court shall stand modified to the aforesaid extent. Appeal is partly allowed to the aforesaid extent. Cross objection shall also stand disposed of accordingly.
Order in Civil Application 9736 of 2010 In view of the order passed in the First Appeal, Civil Application would not survive and shall stand disposed of accordingly.
The compensation as ordered earlier shall be deposited within 8 (eight) weeks from today.
(JAYANT PATEL, J.) (BANKIM.N.MEHTA, J.) (ashish) Top