FA/1068/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1068 of 2008 To FIRST APPEAL No. 1072 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD ========================================= = 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 ? ========================================= = THE STATE OF GUJARAT THRO THE DY. COLLECTOR AND ANOTHER Versus AALA NATHUBHAI AND OTHERS ========================================= =Appearance : MS TRUSHA K PATEL, ASSTT GOVERNMENT PLEADER for the Appellants MR VIMAL M PATEL for the Defendants ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD Date : 02/07/2008 COMMON ORAL JUDGMENT The present First Appeal Nos. 1068 of 2008 to 1072 of 2008 are listed on final hearing board today and are heard finally. 1. The present First Appeals are filed challenging the judgment and award dated 25.4.2006 passed by the Principal Civil Judge, Veraval in Land Reference Case No.66 of 2005 to 70 of 2005 granting compensation at the rate of Rs.2329 per Are deducting FA/1068/2008 2/5 JUDGMENT Rs.350/- per Are as awarded by the Land Acquisition Officer. 2. The facts in brief are that the land in question is situated at village Chikhli, Taluka Una, District Junagadh, which is owned by the original claimants, who are respondents herein. The said lands have been acquired for public purpose for the Scheme known as “Panch Piplav Bharti Niyantran Yojna”. For the purpose of acquisition, the State Government has issued Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”). The said Notification was published on the Notice Board on 25.8.1998 and in the Official Gazette on 2.10.1998. Thereafter, the Notification under Section 6 was published on 25.3.1999. The Land Acquisition Officer after issuing Notice to the original claimants has passed an Award dated 14.3.2001 in Land Acquisition Case No.25 of 1998 granting compensation at the rate of Rs.350/- per Are in respect of Jirayat land. The said Award is on record at Exh.18 before the Trial Court. 3. From the documents produced at Exh.31 to 36, the Notice under Section 12(2) of the said Act was served on the claimants on 19.7.2003. Thereafter, the original claimants have filed Reference on 7.8.2003 under Section 18 of the said Act seeking enhancement of the compensation granted by the Land Acquisition Officer. The claimants have mainly relied on the previous Award dated 3.1.2007 passed in Land Reference Case No.13 of 2003 to 27 of 2003 of the same village Chikhli granting compensation at Rs.2,700/- per Are for piyat land and Rs.2,025/- per Are for barat land. In the said land reference case, the Notification under Section 4 of the said Act was issued on 18.2.1997 and the Award by Land Acquisition Officer was passed on 4.1.1998. Further, the Section Officer, Revenue Department, State of Gujarat vide letter dated 21.8.2000 has instructed Special Land Acquisition Officer to implement the Award dated 3.1.2007 passed by the Trial Court. The said communication and the award is produced at Exh.13 before the Trial Court. FA/1068/2008 3/5 JUDGMENT 4. The grant of the compensation as per the aforesaid Award was objected before the Trial Court by the appellants by filing objections dated 15.2.2005 at Exh.6. The Respondents before the Trial Court have examined Mr. Aalabhai Nathubhai i.e. claimant in LRC No.66 of 2005 at Exh.14. The appellants have examined Mr. Lalabhai Kuberbhai Kharadi, the Deputy Mamlatdar, Junagadh at Exh.38. 5. After considering the material on record and the above contentions, the Principal Civil Judge, Veraval partly allowed the Reference filed by the respondents by passing a judgment and award dated 25.4.2006 granting compensation at Rs.2,329/- per Are deducting Rs.350/- per Are already awarded by Land Acquisition Officer. Further, the Trial Court has also set aside the direction given regarding deduction of 5% towards premium in respect of land, which are in the nature of new tenure land. It is this judgment and award dated 25.4.2006, which is challenged in the present appeal. 6. Having heard the learned advocates appearing for the respective parties, the judgment and award dated 25.4.2006 requires no interference, in view of the fact that while granting the compensation, the Trial Court has relied upon the previous award dated 3.1.2007 passed in Land Reference Case Nos. 13 of 2003 to 27 of 2003 of the same village Chikhli. The Notification under Section 4 in Land Reference Case Nos.13 of 2003 to 27 of 2003 was issued on 18.2.1997 and the award was passed by the Land Acquisition Officer on 4.1.1998 relating to the land situated at village Chikhli. In the present case, the Notification under Section 4 was published in the Notice Board on 25.8.1998. Therefore, there is a difference of 18 months between the date of the Notification issued in Land Reference Case No. 13 of 2003 to 27 of 2003 and the date of the Notification issued in the present case. 7. The learned advocate appearing for the respondent has relied upon the decision of the Division Bench of this Court in the case of FA/1068/2008 4/5 JUDGMENT Dy.General Manager, ONGC Vs Chaturji Lalaji & others reported in 1998(1) GLR 130 contending that ordinarily rise of 10% per annum may be considered by way of appreciation of land. In this context, it is submitted that considering the period of 18 months in issuing the Notification in the present case, the claimants are entitled to 10% increase per year and accordingly, for a period of 18 months, the claimant would be entitled to rise of 15% on the amount awarded in Land Reference Case No.13 of 2003. Considering the ratio laid down in 1998(1) GLR 130, the Trial Court was justified in granting compensation at Rs.2,329/- per Are, i.e. Rs.2,025/- per Are (Compensation granted in LRC No.13 of 2003 to 27 of 2003) plus Rs.304/- per Are (15% increase considering 18 months' difference in issuance of Notification under Section 4 of the said Act). 8. The reliance is also placed on a decision given by the Hon'ble Supreme Court in the case of Abdul Mannan and others Vs State of West Bengal, reported in AIR 1996 SC 905 wherein it is held that the deduction of 5% towards Government share is clearly ultra vires of the power under Section 43 of the Bombay Tenancy & Agricultural Lands Act, 1948. It is also held that the owner under Section 23(1) of the said Act, is entitled to the full compensation of the market value prevailing as on the date of the publication of the Notification under Section 4(1) of the said Act. The said decision of the Hon'ble Supreme Court has been followed by the Division Bench of this Court in the decision reported in 1998(1)GLR 130. In view of the said decisions, the Trial Court has set aside the direction to deduct 5% towards Government's share in judgment and award dated 25.4.2006, which is challenged in the present Appeal. The Trial Court having considered the said aspect, I find no reason to interfere in light of the decision cited in support of the said contentions. 9. In view of the reasons given hereinabove, I find no justification to interfere with the judgment and award dated FA/1068/2008 5/5 JUDGMENT 25.4.2006 passed in Land Reference Case No.66 of 2005 to 70 of 2005. Accordingly, the appeals are dismissed. The record and proceedings is directed to be sent back to the Trial Court. (BHAGWATI PRASAD, J.) omkar