Gujarat High Court
Gujarat Industrial Development ... vs Ibrahim Ismail Panchbhaya & on 2 May, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/FA/3915/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3915 of 2010
TO
FIRST APPEAL NO. 3919 of 2010
With
FIRST APPEAL NO. 3921 of 2010
With
FIRST APPEAL NO. 3923 of 2010
TO
FIRST APPEAL NO. 3926 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the NO
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation NO
of the Constitution of India or any
order made thereunder ?
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GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION
THROUGH....Appellant(s)
Versus
IBRAHIM ISMAIL PANCHBHAYA & 1....Defendant(s)
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Appearance:
MR RD DAVE, ADVOCATE for the Appellant(s) No. 1
MR MM SAIYED, ADVOCATE for the Defendant(s) No. 1
MS MEGHA CHITALIYA AGP for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 02/05/2017
ORAL JUDGMENT
1. The present group of First Appeals has been filed under Section 54 of the Land Acquisition Act, 1894 Page 1 of 16 HC-NIC Page 1 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT (hereinafter referred to as the 'the Act') read with Section 96 of the Civil Procedure Code, 1908 being aggrieved with the impugned judgment and award passed by the Additional District Judge, Bharuch (hereinafter referred to as 'the Reference Court') in respective Land Acquisition References on the grounds stated in these appeals.
2. The brief facts of the case are that the lands of the original claimants situated at Village :
Sarangpur, Taluka : Ankleshwar, District : Bharuch have been acquired by the Special Land Acquisition Officer at the instance of GIDC (acquiring body). The notifications under Sections 4 and 6 of the Act were published on 11.06.1981 and 29.12.1983 respectively. The Special Land Acquisition Officer passed his award under Section 9 of the Act on 26.07.1984 of Rs.240/ per Are for the acquired land. Against which, the original claimants made reference before the Reference Court under Section 18 of the Act. The Reference Court on the basis of the material and evidence and after hearing learned advocates appearing for the respective parties granted additional compensation of Rs.775 per Are together with solatium under Section 23(2) Page 2 of 16 HC-NIC Page 2 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT of the Act as stated in detail in the judgment.
3. Therefore, the present First Appeals have been preferred by the GIDC (acquiring body) challenging the said award by the Reference Court on the grounds stated in the memo of appeal. It is contended that the claimants have not led evidence nor any sale instance in support of the claim is proved. Therefore, it has been contended that the burden of proof was on the claimants by leading evidence to prove their case. It is contended that as per Section 102 of the Evidence Act, as they have not discharged their burden, the award is erroneous. It is also contended that the Court below was not justified in treating the Exh.30 as ready reckoner and has failed to appreciate relevant evidence. It is also contended that the Court below has failed to appreciate that proximity of village by itself cannot be the sole factor and cannot always be a comparable for the purpose of arriving at market value and for determination of the just compensation.
4. Heard learned advocate, Shri R.D. Dave for the appellant, learned advocate, Shri M.M. Saiyed for the respondentoriginal claimants and learned AGP Page 3 of 16 HC-NIC Page 3 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT Ms.Megha Chitaliya for the respondentLand Acquisition Officer in all matters.
5. Learned advocate, Shri Dave referred to the background of the facts and also the judgment of the Reference Court in LAR Case Nos.1151 to 1162 of 1990 (Main LAR Case No.1151/1990). He pointedly emphasized the observation made in Para Nos.11 and 12 of the judgment and submitted that the reference is made to earlier judgment of the Hon'ble Division Bench of the High Court in First Appeal Nos.927 to 1033 of 1990. Learned advocate, Shri Dave submitted that based on that, market value of the land of the claimants has been assessed referring to Village : Gadkhol. He submitted that as the award for the land of Village : Gadkhol is at the rate of Rs.790 per ARE, the assessment has been made for the land of the original claimant's Village : Sarangpur. Learned advocate, Shri Dave submitted that Village : Pirana and Gadkhol are adjacent to Ankleshwar, which is highly developed area and, therefore, the market value is fixed taking into consideration the development and the utility. However in the present case, the land is not so situated adjacent Page 4 of 16 HC-NIC Page 4 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT or in near vicinity of the developed area. He submitted that Reference Court has failed to consider the relevant criteria, potential development and other advantages. He therefore submitted that relevant criteria for fixing higher value or the market value will have to be considered and those relevant criteria are not applicable in the facts of the case. He, therefore, submitted that the award of the Reference Court is erroneous and in disregard to the relevant criteria for deciding the market value for the purpose of compensation. He submitted that the Reference Court has not considered the previous award which could be the basis for the assessment of the market value.
6. Learned advocate, Shri Saiyed for the respondents original claimants has submitted that there is no pleadings that two lands are different. He submitted that there is no evidence that both the lands of Village : Sarangpur and Village : Gadkhol are not similarly situated. Learned advocate, Shri Saiyed submitted that the land in question is situated on the road from Ankleshwar to Rajpipla and Railway Station is just 3 kms. away, meaning Page 5 of 16 HC-NIC Page 5 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT thereby, the land in question is also adjacent and in near vicinity of Ankleshwar. He, therefore, submitted that reference made to Gadkhol or Pirana cannot be said to be erroneous. Learned advocate, Shri Saiyed submitted that it is not that the land is less developed than Village : Galkhod or Pipana. He referred to the background and submitted that this land is also adjoining to both villages. He emphasized that the acquisition of the land is also for the same purpose of GIDC and, therefore, the judgment and order of the Reference Court cannot be said to be without considering the relevant criteria or the evidence as sought to be canvassed. Learned advocate, Shri Saiyed referred to and relied upon the judgment of the High Court in case of State of Gujarat Vs. Maganbhai Kodarbhai Suthar delivered in First Appeal Nos.2210 to 2219 of 2001 vide judgment dated 24.07.2006 ( = 2006 JX (Guj) 275) and submitted that it has been discussed about the justification of sale instance of similar type of land and of the same village. However he submitted that same village would not be the only criteria if the land or the nature of the land is more similarly to the Page 6 of 16 HC-NIC Page 6 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT adjacent village where the land is acquired for the same purpose. He submitted that entire land of 23 villages near to road have been acquired and, therefore, the submission about the earlier sale instance cannot be relied upon as it refers to the acquisition of the land, which was interior for the purpose of ONGC. He also submitted that if the land situated is adjacent to other village, it will also be relevant. He has also referred to the judgment of the High Court in case of General Manager, ONGC Ltd. Vs. Chamanji Kuberji & Ors., reported in 2013 (4) GLR 2769 and submitted that as observed, when the land is situated by the side of highway, the market value on comparison of adjacent village could be considered, which has been confirmed in the Appeal before the High Court. He, therefore, submitted that the present Appeals may not be entertained. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Thakarsibhai Devjibhai & Ors. Vs. Executive Engineer, Gujarat & Anr., reported in (2001) 9 SCC 584. He submitted that the land acquired near to the town within the distance of 5 Kms. would be relevant and, Page 7 of 16 HC-NIC Page 7 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT therefore, the present Appeals may not be entertained.
7. In view of these rival submissions, it is required to be considered whether the present group of First Appeals deserves consideration.
8. As could be seen from the background of the facts as well as the judgment and award of the Reference Court, which has been referred to by both the sides at length, the acquisition of the land of Village : Sarangpur is for the same purpose of establishment of GIDC estate as it was in case of Village : Piraman and Village : Gadkhol. Reference Court on appreciation of material and evidence and after considering the evidence has enhanced the compensation taking the market value of the land at Rs.775/ per ARE. Again it has also considered the judgment of the Hon'ble Division Bench of the High Court in First Appeal Nos.927 to 1033 of 1990 and has also considered the fact that the Hon'ble Division Bench had modified the compensation at the rate of Rs.790/ per Are on the basis of said judgment and considering the revenue boundary of Village : Gadkhol, it was also acquired for the extension of GIDC and the boundary of Village : Page 8 of 16
HC-NIC Page 8 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT Sarangpur are adjoining to each other as relied upon in the judgment of the Hon'ble Division Bench for awarding compensation at the rate of Rs.775/ per ARE. The acquisition of the land in question of Village : Sarangpur is for the same purpose at the instance of GIDC and acquisition of land of Village : Gadkhol and Piraman were also for the same purpose of GIDC. As discussed, the revenue boundary of Village : Gadkhol and Sarangpur are adjoining to each other. Further the reliance placed by learned advocate, Shri Dave with much emphasizing that Ankleshwar is a developed area or the town and the proximity of Village : Gadkhol and Piraman is not comparable with the land under acquisition in case of Sarangpur referring to the map to suggest that the proximity of the land of Village : Sarangpur is not on the same footing as that of Village : Piraman with the developed area of Ankleshwar and, therefore, the award may not be made on the same basis, is required to be considered. He has tried to emphasis on the aspect of geographic location, potential development and also distance from the developed area of Ankleshwar. On the other hand, learned advocate, Page 9 of 16 HC-NIC Page 9 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT Shri Saiyed has again stated that as the revenue boundary of Village : Gadkhol and Sarangpur are so adjoining and therefore, it would be taken on the same footing for the purpose of proximity to develop the area or the potentiality. The moot question is whether the land in question of Village : Sarangpur can be said to have proximity to the developed area of Ankleshwar and whether it can be said to be comparable with the land acquired of Village : Piraman and Gadkhol. As discussed, there might be some variation with regard to some distance or other features. While considering the market value of the land under acquisition, relevant criteria of potentiality, proximity to the developed area, development in an around the land in question with infrastructure like road, Railway Station, transport facility are relevant. In the facts of the case, there may be some distance while considering the geographical location of two villages and the land acquired but it cannot be overlooked that the land is acquired for the same purpose by GIDC and both villages are adjacent. There may be some difference with regard to the exact distance with developed town of Page 10 of 16 HC-NIC Page 10 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT Ankleshwar. Assuming that geographic location of the land in question of Village : Sarangpur and the land of Village : Piraman may have some variation like variation in the distance, location etc., the fact remains that it has been acquired for the same purpose of GIDC, which would imply that it would also have similar potentiality as well as proximity with road and transport facility suggestive of the potential development. It is in this circumstance, the observations have been made by the Hon'ble Division Bench of the High Court in First Appeal Nos.927 to 1033 of 1990, where it has been observed, "As noted earlier, there was heavy pressure on the lands of villages Piraman and Gadkhol due to industrial activities which had taken place in the surrounding villages. Vast lands of different villages surrounding towns of Bharuch and Ankleshwar were acquired by the Gujarat Industrial Development Corporation for establishment of industrial estate in this area.
Therefore, the Court can presume that, day by day, there was increase of price of lands of villages surrounding both the towns."
9. Therefore it is well settled that previous judgment and award or the judgment of the Court in Page 11 of 16 HC-NIC Page 11 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT land acquisition cases determining the market value of the land in near vicinity of the land acquired would provide good guidance. Further the Hon'ble Apex Court in a judgment in case of Thakarsibhai Devjibhai & Ors. Vs. Execute Engineer, Gujarat & Anr., reported in (2001) 9 SCC 584 has clearly made observation that if the lands are similar then distance between two land would not itself lead to change in the market value. Similarly in the judgment of the Hon'ble Division Bench of the High Court in case of Special Land Acquisition Officer, Bharuch Vs. Motibhai Mohanbhai, reported in 1997 (2) GLH 773, it has also been observed that the market value of the land is determined by taking into consideration the amount awarded in respect of similar land acquired in joining village. Thus it would be broad indicative or the guideline for the purpose of arriving at the market value for the land in question. In the facts of the case, whether two lands are acquired for the same purpose of GIDC and the revenue boundaries are adjoining even if there is some variation in distance in the topography, it would be considered as the Page 12 of 16 HC-NIC Page 12 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT guideline for the purpose of assessment of the market value.
10. Therefore the Hon'ble Apex Court has in a judgment in case of Mahesh Dattatray Thirthkar Vs. State of Maharashtra, reported in AIR 2009 SC 2238 has observed, "Proximity to develop urbanized area needs to be necessarily considered, while deciding on the compensation to be paid for acquisition of land, on the basis of evidence available. Where there is evidence to show that acquired property is situated near Highway and the State has not given any evidence to rebut this contention, the Court cannot overlook the proximity of the acquired property to a developed area, and the High Court cannot set aside the order of the Reference Court merely on grounds of minor inconsistencies and technicalities. The compensation provision of the Act is in the nature of a welfare stipulation and thus the State Government must be just and fair to those whose land it acquires."
11. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Bhag Singh & Ors. Vs. Union Territory of Chandigarh, reported in AIR 1985 SC 1576, wherein it has made observation with regard to the payment of fair compensation for the land acquired and the Page 13 of 16 HC-NIC Page 13 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT obligation of the State to pay such compensation.
12. In the facts of the case, as discussed hereinabove, judgment of the Hon'ble Division Bench in First Appeal Nos.927 to 1033 of 1990 has been referred to while considering the adquacy of the compensation in case of the acquisition of the land of Village : Piraman. The Hon'ble Division Bench after considering relevant aspect has reduced the compensation and modified to Rs.790/ per Are. Learned advocate, Shri Saiyed has also stated that the judgment of the Reference Court may be modified and reduced on the same line following the judgment of the Hon'ble Division Bench. Thus in principle, it has been accepted that the High Court on appreciation of evidence modified and reduced the award of the Reference Court to Rs.790/ per Are for Village : Piraman. In the facts of the case, even if it is accepted for the sake of argument much emphasis by learned advocate, Shri Dave that Village : Piraman and the land under acquisition of Village : Umarwada are not identical or exactly similarly situated even then, as stated above it would serve as a guideline as the acquisition for the same purpose Page 14 of 16 HC-NIC Page 14 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT of GIDC estate suggesting potentiality with some development and infrastructure would justify. The submission made by learned advocate, Shri Saiyed that the judgment and award of the Reference Court may be modified on the same line as in case of Village : Piraman.
13. The Hon'ble Division Bench in a judgment in First Appeal Nos.927 to 1033 of 1990 while considering the submission has considered the potential development of Village : Piraman, distance from Ankleshwar and it has been observed that, "It is well settled legal principle that previous judgments and awards of the Reference Court, if they relate to similarly situated adjacent lands and have become final provide good guidance in determining the market value of the lands acquired subsequently. There is no doubt that, a judgment of a court in a land acquisition case determining the market value of a land in the vicinity of the acquired lands even though not inter partes, could be admitted in evidence either as an instance or one from which the market value of the acquired land could be deduced or inferred."
14. Further it has also been observed, "Vast lands of different villages surrounding towns of Bharuch and Ankleshwar Page 15 of 16 HC-NIC Page 15 of 16 Created On Wed Aug 16 13:42:13 IST 2017 C/FA/3915/2010 JUDGMENT were acquired by the Gujarat Industrial Development Corporation for establishment of industrial estate in this area."
15. It has also been observed, "Therefore, the Court can presume that, day by day, there was increase of price of lands of villages surrounding both the towns."
16. Therefore having regard to the submissions and considering the location, potential development as well as minor details pointed out by both sides, particularly, by learned advocate, Shri Dave pointing out as to how it is not identical with Piraman, the interest of justice would be served if the judgment and award of the Reference Court is modified on the same way as the Hon'ble Division Bench confining it to Rs.675/.
17. In the circumstances, the present First Appeal stand allowed partly. The impugned judgment and award of the Reference Court is hereby modified and the compensation awarded by the Reference Court is reduced to Rs.675/ instead of Rs.775/. Decree to be drawn accordingly.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 16 of 16 HC-NIC Page 16 of 16 Created On Wed Aug 16 13:42:13 IST 2017