FA/4069/2007 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4069 of 2007 To FIRST APPEAL No. 4072 of 2007 With FIRST APPEAL No. 4092 of 2007 To FIRST APPEAL No. 4095 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ============================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ============================================= SPL. LAQ OFFICER & 1 - Appellant(s) Versus AMRATBHAI SOMABHAI PATEL & 3 - Defendant(s) ============================================= Appearance : FIRST APPEAL Nos.4069/07 to 4072/07 MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS.SANGEETA VISHEN, ASSTT. GOVT. PLEADER for Appellants - Original Defendants MR AJ PATEL for Respondents-Claimants. FIRST APPEAL Nos.4092/07 to 4095/07 MR AJ PATEL for Appellants-Original Claimants. MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS.SANGEETA VISHEN, ASSTT. GOVT. FA/4069/2007 2 JUDGMENT PLEADER for Respondents. ============================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 11 /4 /2008 COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) 1. As all these First Appeals under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) are against one common judgment and award, they are being disposed of by this common judgment and order. As such First Appeals No.4092 of 2007 to 4095 of 2007 are the Cross Appeals filed by the original claimants. 2. First Appeals No.4069 of 2007 to 4072 of 2007 are filed by the appellants herein – original opponents i.e. Special Land Acquisition Officer as well as Executive Engineer, Gandhinagar under Section 54 of the Act challenging the common judgment and award dated FA/4069/2007 3 JUDGMENT 11.10.2006 passed by the learned Principal Senior Civil Judge, Gandhinagar passed in Land Acquisition Reference Nos.924/98 to 927/98 (Main L.A.R. No.924/98) by which the Reference Court directed the appellants to pay additional compensation to the respondents herein – original claimants at the rate of Rs.1,733/- per sq.mtr over and above the amount of compensation already awarded by the Special Land Acquisition Officer. 3. First Appeals No.4092/07 to 4095/07 are the Cross Appeals filed by the original claimants challenging the aforesaid common judgment and award dated 11.10.2006 passed by the learned Principal Senior Civil Judge, Gandhinagar, passed in Land Acquisition Reference Nos.924/98 to 927/98 (Main L.A.R. No.924/98) in not awarding the full compensation as prayed for i.e. at the rate of Rs.4,000/- per sq.mtr., and in awarding the additional compensation at the rate of Rs.1,733/- per sq.mtr only. Pursuant to the judicial order passed by this Court and these appeals are in fact Cross Appeals, these appeals FA/4069/2007 4 JUDGMENT were directed to be heard along with First Appeals No.4069/07 to 4072/07, and therefore, they are being disposed of with present group of First Appeals. 4. The claimants of Land Acquisition Reference Case No.924 of 1998 were the owners of land bearing Survey Nos.62, 64/4, 61, 64/2 situated at Village Sargasan, District Gandhinagar. Original claimants of Land Acquisition Reference Case No.925/98 were the owners of land bearing Survey No.63 situated at Village Sargasan. Original claimants of Land Acquisition Reference Case No.926/98 was the owner of land bearing Survey No.64/1 and original claimants of Land Acquisition Reference Case No.927/98 was the owner of land bearing Survey No.64/3 situated at Village Sargasan, District Gandhinagar. 4.1 The aforesaid lands were sought to be acquired and a Notification under Section 4 of the Act came to be issued on 20.5.1993. Thereafter Notification under Section 6 of the FA/4069/2007 5 JUDGMENT Act came to be published on 17.3.1994. The notices under Section 9(2) of the Act came to be issued and it appears from the award under Section 11 of the Act that the interested persons submitted their replies on 24.3.1994 and prayed for compensation at the rate between Rs.1,000/- to Rs.1,500/- per sq.mtr. The Special Land Acquisition Officer passed an award on 18.1.1996 in Land Acquisition Case No. 8 of 1991 determining the compensation in respect of the aforesaid lands by fixing Rs.17/- per sq.mtr., as the market value. 4.2 Being aggrieved and dissatisfied with the aforesaid award of the Special Land Acquisition Officer dated 18.1.1996 determining the market value of the lands in question at Rs.17/- per sq.mtr., the original claimants submitted the reference applications under Section 18 of the Act which were referred to the District Court, Ahmedabad (Rural) and were numbered as Land Acquisition Reference Nos.476/98 to 480/98. It appears that thereafter the District Court, FA/4069/2007 6 JUDGMENT Gandhinagar, came to be established and Village Sargasan was included within the jurisdiction of Gandhinagar District and therefore all the aforesaid reference cases came to be transferred to District Court, Gandhinagar, and they were renumbered as Land Acquisition Reference Nos.924/98 to 927/98, and all the aforesaid reference cases were consolidated and heard together. The Reference Court recorded the evidence as common evidence of all the aforesaid land reference cases in main Land Acquisition Reference No.924/98. The original claimants prayed the compensation at Rs.4,000/- per sq.mtr., with respect to the lands in question. Written statement came to be filed on behalf of the appellants herein – original opponents at Exh.12. It was contended on behalf of the Special Land Acquisition Officer in the written statement that the award of the Special Land Acquisition Officer awarding the compensation at the rate of Rs.17/- per sq.mtr., is just and proper and reasonable and the same is considered after taking into consideration all the relevant FA/4069/2007 7 JUDGMENT factors i.e. fertility of land and sale deed of last five years. It was also submitted that the claimants have not produced any documentary evidence at the time of acquisition of lands. 4.3 On behalf of the claimants, the following documentary evidences came to be produced. (i) Original copies of extract of Village Form No.7/12 of Survey Numbers of Village Vavol at Mark 16/1 to 16/5. (ii) Certified copy of the judgment delivered by the Civil Judge (S.D.), Gandhinagar in L.A.R. No.6/04 & 36/04 of Village Dholakuva at Exh.41. (iii) Xerox copy of the notice given by Shri H.B.Patel to Executive Engineer, Gandhinagar at Exh.43. (iv) Certified copy of the judgment of Hon'ble Gujarat High Court at Exh.44. FA/4069/2007 8 JUDGMENT (v) Xerox copy of the letter of Special Land Acquisition Officer at Exh.42. (vi) Government Resolution showing the Sector-wise market value of the lands for the year 2001-2002-2003 at Exh.45. (vii) Map showing the development plan by GUDA at Exh.46. (viii) Certified copy of auction made by District Collector for plots at Exh.47. (ix) Certified copy of the judgment delivered by Civil Judge (S.D.), Gandhinagar in L.A.R. No.839/98 of Village Vavol at Exh.48. (x) Certified copy of order passed by the Collector, Gandhinagar regarding sanction of auction dated 5.2.1986 at Exh.57. (xi) Certified copy of order passed by the FA/4069/2007 9 JUDGMENT Collector, Gandhinagar regarding sanction of auction dated 24.2.1986 at Exh.58. (xii) Certified copy of order passed by the Collector, Gandhinagar regarding sanction of auction dated 27.7.86 at Exh.59. (xiii) Certified copy of Government Resolution showing the market value fixed by the Government for residential area of Gandhinagar for the period from 1.4.2002 to 31.3.2003 at Exh.60. (xiv) Certified copy of Government Resolution showing the market value fixed by the Government for residential area of Gandhinagar for the period from 1.4.1998 to 31.2.1999 at Exh.61. (xv) Certified copy of Government Resolution dated 29.11.1999 regarding allotment of land for info city, Gandhinagar at Exh.62. FA/4069/2007 10 JUDGMENT (xvi) Certified copy of the Resolution passed by the R&B Department, Gandhinagar regarding allotment of land to the Institute of Electronic & Incoming Technology at Exh.63. (xvii) Certified copy of the order passed by the Collector regarding auction of Plot No.199 situated at Sector 21, Gandhinagar at Exh.64. 4.4 On behalf of all the claimants one Shri Vikrambhai Somabhai Patel came to be examined on oath at Exh.17. It is to be noted that the said Vikrambhai Somabhai Patel who came to be examined on behalf of all the claimants is one of the claimant in Land Acquisition Reference No.924/98. The said Vikrambhai Somabhai Patel was also cross-examined by the learned Government Pleader on behalf of the State. 4.5 On behalf of the acquiring body and the State, one Asvinkumar Bholanath Jani came to be FA/4069/2007 11 JUDGMENT examined at Exh.24. The Special Land Acquisition Officer was also examined at Exh.27. On behalf of the State and the acquiring body, the following documentary evidences came to be produced. (i) Exh.28 Map of Village Sargasan. (ii) Exh.29 Award of Special Land Acquisition Officer of Village Sargasan. (iii) Exh.30 Award of Special Land Acquisition Officer of Village Vasana, Hadmatiya-Vavol-Sargasan. (iv) Exh.31 Xerox copy of judgment of Hon'ble High Court of Gujarat in First Appeal No.704 to 729/93 dated 14.9.94. (v) Exh.32 Xerox copy of judgment of Hon'ble High Court of Gujarat in First Appeal No.580/95 to 595/95 dated 16.2.95. (vi) Exh.33 Xerox copy of judgment delivered by Assistant District Judge, Ahmedabad (Rural) in L.A.R. No.195/78. FA/4069/2007 12 JUDGMENT (vii) Exh.34 Xerox copy of judgment delivered by learned Civil Judge (S.D.), Gandhinagar of Village Adalaj in L.A.R. No.442 to 444/98 and letter of Government dated 5.7.2005. (viii) Exh.35 Xerox copy of judgment delivered by learned Civil Judge (S.D.), Gandhinagar of Village Pundrasan in L.A.R. No.705/98 and letter of Government dated 4.6.2005. (ix) Exh.36 Xerox copy of judgment delivered by learned Civil Judge (S.D.), Gandhinagar of Village Ridrol in L.A.R. No.707/98 to 716/98 and letter of Government dated 18.8.2005. (x) Exh.37 Xerox copy of opinion of Special Land Acquisition Officer under Law Officers Rules 132 in L.A.R. Nos.6 and 36/04 of dated 1.6.2005. 4.6 The Reference Court framed the issues at Exh.14 and thereafter after having heard the learned advocates appearing on behalf of both the parties and considering the oral and documentary evidence on record oral as well documentary FA/4069/2007 13 JUDGMENT passed the impugned common judgment and award dated 11.10.2006 determining the market value of the lands in question at the rate of Rs.1,750/- per sq.mtr., ( 100 times more than the award passed by the Special Land Acquisition Officer) and deducting Rs.17/- per sq.mtr., awarded by the Special Land Acquisition Officer, passed an award directing the appellants to pay additional compensation to the claimants at the rate of Rs.1,733/- per sq.mtr., with all other statutory benefits available under the Act. 4.7 Being aggrieved and dissatisfied with the impugned common judgment and award, the Special Land Acquisition Officer and the Executive Engineer on behalf of the State have preferred First Appeals No.4069/07 to 4072/07. The original claimants have also preferred Cross Appeals being First Appeals No.4092/07 to 4095/07 challenging the impugned judgment and award passed by the Reference Court in not awarding the compensation at the rate of Rs.4,000/- per sq.mtr. FA/4069/2007 14 JUDGMENT 5. Shri Kamal B.Trivedi, learned Advocate General with Ms.Sangeeta Vishen, learned Assistant Government Pleader has appeared on behalf of appellants of First Appeals No.4069/07 to 4072/07. Shri A.J.Patel, learned advocate has appeared on behalf of original claimants and the appellants of First Appeals No.4092/07 to 4095/07. 6. Shri Kamal Trivedi, learned Advocate General appearing on behalf of the State has vehemently submitted that the Reference Court has materially erred in determining the market price of the lands in question at the rate of Rs.1,750/- per sq.mtr., and thereafter has committed an error in awarding the compensation at the rate of Rs.1,750/- per sq.mtr. It is submitted that the Reference Court has materially erred in relying upon the judgment and award passed by the Reference Court dated 7.5.2005 passed in Land Reference Cases No.6/04 and 36/04 with respect to the lands situated at Village FA/4069/2007 15 JUDGMENT Dholakuva produced at Exh.41. It is submitted that the award passed in reference cases with respect to Village Dholakuva could not have been relied upon by the Reference Court in view of the fact that being aggrieved and dissatisfied with the said judgment and award the State has preferred First Appeals No.3615/05 and 3616/05 and the said appeals are admitted by this Court and are pending for final hearing. It is submitted that even otherwise looking to the distance between Village Dholakuva and Village Sargasan, the lands situated at Village Dholakuva cannot be said to be a comparable instance and therefore also the judgment and award with respect to Village Dholakuva could not have been relied upon by the Reference Court while determining the compensation/market price at the rate of Rs.1,750/- per sq.mtr. It is submitted that the Reference Court while passing the impugned judgment and award has solely relied upon the judgment and award passed in reference application with respect to the lands of Village Dholakuva produced at Exh.41. It is submitted FA/4069/2007 16 JUDGMENT that no other evidence has been relied upon by the Reference Court in the impugned judgment and award granting the compensation at the rate of Rs.1,750/- per sq.mtr. 6.1 Shri Kamal Trivedi, learned Advocate General appearing on behalf of the State and the acquiring body has submitted that though the other evidences were available on record which were produced on behalf of the State at Exhs.29, 30, 31, 32 and 48 which can be said to be comparable instances, the Reference Court has not dealt with and considered the same at all. It is submitted that the said evidences were relating to comparable lands i.e. land adjoining and/or in the vicinity of the lands acquired and the Reference Court has erred in not referring the same. It is submitted that with respect to the lands of Village Vavol, just adjacent to the lands in question and where the acquisition was ad-measuring 1,81,504 sq.mtr., and with respect to the Notification under Section 4 dated 7.7.1983, the Division Bench of this Court in FA/4069/2007 17 JUDGMENT First Appeals No.704/93 to 729/93 vide judgment and order dated 14.9.1994 has determined the market price of the land at Village Vavol at Rs.50/- per sq.mtr., and considering 10% rise for every year, the market price of the land in question would come to Rs.180/- per sq.mtr. It is further submitted that even another Division Bench of this Court in First Appeals No.580/95 to 595/95 vide judgment and order dated 16.2.1995 has determined the market price of the land at Village Vavol which is just adjacent to the land in question at Rs.50/- per sq.mtr. It is submitted that the said judgment and order is with respect to the Notification under Section 4 of the Act dated 19.2.1981 and the acquisition was with respect to 2,14,433 sq.mtrs. of land. It is submitted that considering the same and giving 10% rise for every year, the market price of the land in question would come to Rs.158/- per sq.mtr. 6.2 It is further submitted that even with respect to the land situated at Village Vavol FA/4069/2007 18 JUDGMENT i.e. land which is adjacent to the land in question, the very Reference Court has by judgment and award dated 16.2.2005 in L.A.R. Nos.839/98 to 841/98, 311/98 & 332/98 to 336/98 has awarded the compensation at the rate of Rs.210/- per sq.mtr. It is submitted that Section 4 Notification with respect to the said land ad-measuring 53,962/- sq.mtr. situated at Village Vavol (just adjacent to the land in question) was dated 13.8.1992 and Section 4 Notification so far as the land in question is concerned has been issued on 20.5.1993, and considering 10% rise per year, the market price of the land in question would come to Rs.231/- per sq.mtr. It is submitted that the said judgment and award has been produced at Exh.48. It is submitted that, in spite of the aforesaid comparable instances with respect to Village Vavol and the said lands are just adjacent to the acquired land in question, still the Reference Court has not referred to and dealt with and has not relied upon the same, and relying upon the judgment and award passed in reference case with FA/4069/2007 19 JUDGMENT respect to Village Dholakuva which is far away, the Reference Court has awarded the compensation at the rate of Rs.1,750/- per sq.mtr. Thus, it is submitted that the vital documentary evidences produced at Exh.31, 32 and 48 have not been considered and dealt with by the Reference Court. 6.3 Shri Kamal Trivedi, learned Advocate General has submitted that on the other hand the claimants have relied upon the upset price or on the market value of the smaller plots situated in developed area of Gandhinagar Township, either acquired for commercial purpose or residential purpose which is totally misplaced inasmuch as when the market value of the comparable lands in terms of size, situation and characteristic is available, then in that case, there is no question of considering the market value of a smaller plot for determining the market value of the bigger plot by allowing deduction of 20% to 30%. The learned Advocate General has relied upon the decision of the Hon'ble Supreme Court RAVINDRA NARAIN VS. UNION OF INDIA reported in FA/4069/2007 20 JUDGMENT (2003) 4 SCC 481 (para 7) and PRITHVI RAJ TANEJA (DEAD) BY LRS. VS. THE STATE OF MADHYA PRADESH AND ANOTHER reported in (1977) 1 SCC 684 (para 6), it is submitted that the decision in both the cases are of a larger bench. It is submitted that as held by the Hon'ble Supreme Court in the aforesaid decisions, the rates fixed for smaller plots cannot be the basis to award the compensation for the acquisition of a larger area. 6.4 It is also further submitted that there arises no question of comparing the smaller plots of land situated in various sectors i.e. developed areas of Gandhinagar Township as held by this Court vide its judgment and order dated 14.9.1994 in First Appeal No.1983 of 1992 and others (Exh.31). 6.5 It is submitted that the claimants have relied upon the sale instances and the upset price and/or the auction price with respect to the smaller plots by relying documentary FA/4069/2007 21 JUDGMENT evidences at Exh.45, 47, 57, 58, 59 & 60 which are of the smaller plots ad-measuring 131.25 sq.mtr. to 200 sq.mtr., and with respect to the plots situated within Gandhinagar Township itself in Sector 16 and Sector 21 and that too with respect for commercial purpose. It is submitted that the distance between the lands/plots situated within Sector 16 and Sector 21 and that of Village Sargasan is of 2 ½ km., and in between there are so many sectors and even the sectors which were just nearer to Village Sargasan i.e. Sector 4 where even not developed. Therefore even the upset price/market price with respect to the smaller plots situated within Sector 16 and Sector 21 relied upon by the claimants cannot be said to be comparable sale instances at all. Therefore there is no question even considering the same and even after appropriate deduction ranging between 20% to 50%. It is further submitted that even the aforesaid aspect has been considered by the Division Bench of this Court in First Appeal No.1983 of 1992 Exh.31 and the Division Bench of this Court has FA/4069/2007 22 JUDGMENT specifically held that the sale instances in respect of developed small plots in Sectors 11, 16, 21 and 22 cannot be relied upon and the same cannot be said to be comparable sale instances. It is submitted that therefore even the decision of the Division Bench relied upon on behalf of the claimants PATEL BHAGABHAI SHAMALBHAI VS. THE THIRD SPECIAL LAND ACQUISITION OFFICER, reported in 1991(1) GLR 613 cannot be made applicable. 6.6 Shri Kamal Trivedi, learned Advocate General has also relied upon the recent decision of the Hon'ble Supreme Court in LUCKNOW DEVELOPMENT AUTHORITY VS. KRISHNA GOPAL LAHOTI AND OTHERS reported in (2008) 1 SCC 554 with respect to the difference between a developed area and an area having potential value, which is yet to be developed. It is submitted that as held and observed by the Hon'ble Supreme Court that an area which is developed or adjacent to 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 FA/4069/2007 23 JUDGMENT when vast tracts were acquired for development purpose. 6.7 Shri Kamal Trivedi, learned Advocate General has submitted that, on perusal of the deposition of the lone witness examined on behalf of claimants one Shri Vikrambhai Somabhai Patel (Exh.17), the State Government's witnesses Shri Ashwinkumar Bholanath Jani (Exh.24) and Shri Ahmed Hussain Malvat (Exh.27), the following aspects have emerged. (i) The claimants have not produced any evidence as regards yield or fertility of the land in question or the crop which has been taken from the land in question. Nothing is on record whether the claimants were carrying on agriculture activities with scientific method or using seeds and fertilizer of high value. (ii) Distance between the lands in question of Sargasan Village and the lands of Village FA/4069/2007 24 JUDGMENT Dholakuva is about 4 to 5 kms. (iii) Distance between the lands in question and the Village Sargasan is about 2.0 km. (iv) Lands in question is not on Gandhinagar Sarkhej Highway. Survey Nos. 61, 62, 63 of the lands in question are located about 800 mtrs. away, whereas Survey Nos.64/1 to 64/4 are 500 mtrs. away from the said highway. (v) Even at the time of the recording of oral evidence in the matter in December 2005, the lands in question are not located in Gandhinagar Township, there are no facilities like roads, drainage, water, light etc. (vi) The actual Gandhinagar Township is at a distance of 3 to 4 kms. away from the lands in question. 6.8 It is also further submitted that it is factually incorrect on the part of the claimants FA/4069/2007 25 JUDGMENT to contend that there were no sale instances of the lands situated in the vicinity of the land in question, just prior to the issuance of Section 4 Notification dated 20.5.1993 with respect to the lands in question. It is submitted that the Statement “C” annexed to the award dated 25.7.1996 (Exh.15) of Land Acquisition Officer clearly shows at Serial Nos.9 to 13 that there were sale transactions in respect of surrounding lands during the period from 1991 to 1992 at the rates varying from Rs.15.88 to Rs.17.21 per sq.mtrs. 6.9 Shri Kamal B.Trivedi, learned Advocate General has also relied upon the following decisions: (i) SPECIAL LAND ACQUISITION OFFICER, BYDA, BAGALKOT VS. MOHD.HANIF SAHIB reported in AIR 2002 SC 1558. (ii) KASTURI AND OTHERS VS. STATE OF HARYANA reported in (2003) 1 SCC 354. FA/4069/2007 26 JUDGMENT (iii) V.HANUMANTHA REDDY (DEAD) BY LRS. VS. LAND ACQUISITION OFFICER AND MANDAL R.OFFICER reported in AIR 2004 SC 1185. (iv) EXECUTIVE DIRECTOR VS. SARAT CHANDRA BISOI AND ANOTHER reported in (2000) 6 SCC 326. 6.10 Relying upon the aforesaid various decisions of the Hon'ble Supreme Court as well as relying upon the judgment and order dated 14.9.1994 passed by the Division Bench of this Court in First Appeals No.704 to 729 of 1993 which is produced at Exh.31; the judgment and order dated 16.2.1995 of the Division Bench of this Court in First Appeals No.580 to 595 of 1995 at Exh.32 and the judgment and award passed by the Reference Court dated 16.2.2005 by the very Reference Court in L.A.R. Nos.839/98 to 841/98 and others which is produced at Exh.48, and by making above submissions, learned Advocate General has requested to allow the present appeals by submitting that at the most the market price of the acquired lands in question can be FA/4069/2007 27 JUDGMENT considered at Rs.231/- per sq.mtr. It is also submitted that in view of the above the First Appeals filed by the claimants for enhancement of the amount