FA/3372/2006 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3372 of 2006 to FIRST APPEAL No. 3384 of 2006 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL HON'BLE SMT.JUSTICE ABHILASHA KUMARI ===================================================== 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 ? ===================================================== STATE OF GUJARAT - Appellant(s) Versus KALYANSANG NANUBHAI VALA & 1 - Defendant(s) ===================================================== Appearance : MR SS SHAH, GP for Appellant(s) (In FA 3372/06 to 3378/06) MS KRINA P CALLA AGP for Appellant(s) (In FA 3379/06 to 3384/06) NOTICE SERVED for Respondent-2. MR DJ CHAUHAN for Respondent(s)-Claimant(s) ===================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HON'BLE SMT.JUSTICE ABHILASHA KUMARI Date : 21/12/2006 FA/3372/2006 2/17 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) 1. Admitted. Mr.D.J.Chauhan, learned counsel, waives service of notice on behalf of the claimant/ claimants in each Appeal. Ms.Krina P.Calla, learned Assistant Government Pleader, states at the Bar that the interest of the appellant and that of the respondent No.2 is identical and is not in conflict at all. In view of the statement made at the Bar by the learned Assistant Government Pleader, this Court is of the opinion that it is not necessary for the appellant to effect service of notice of admission of these Appeals upon the respondent No.2. With the consent of the learned advocates for the parties, the Appeals are taken up for final disposal today. 2. What is challenged in these Appeals filed under Section 54 of the Land Acquisition Act, 1894 (“the Act” for short), read with Section 96 of the Code of Civil Procedure, FA/3372/2006 3/17 JUDGMENT 1908, is the legality of the common judgment and award dated September 30, 2004, rendered by the learned Second Joint Civil Judge (Senior Division), Surendranagar, in Land Reference Case No.41 of 1997 to Land Reference Case No.53 of 1997 by which, the claimants have been awarded in all compensation at the rate of Rs.29/- per sq.mt. for their acquired lands. 3. The Executive Engineer, Saurashtra Branch, Narmada Division No.2/5, Limbdi, proposed to the State Government to acquire the lands of village Sontha, Taluka: Limbdi, District: Surendranagar, for the public purpose of construction of Limbdi Branch of Narmada Canal. On perusal of the said proposal, the State Government was satisfied that the lands of village Sontha were likely to be needed for the said public purpose. Therefore, a Notification under Section 4(1) of the Act was issued, which was published in the official gazette on September 3, 1992. The land owners whose lands were FA/3372/2006 4/17 JUDGMENT proposed to be acquired were thereafter served with notices under Section 4 of the Act. On receipt of the notices, they opposed the proposed acquisition. After considering the their objections, a report was submitted by the Special Land Acquisition Officer to the State Government as contemplated by Section 5A(2) of the Act. On scrutiny of the said report, the State Government was satisfied that the lands of village Sontha which were specified in the notification published under Section 4 of the Act were needed for the public purpose of construction of Limbdi Branch of Narmada canal. Therefore, a declaration under Section 6 of the Act was made which was published in the official gazette on July 7, 1993. The interested persons were thereafter served with notices under Section 9 of the Act for determination of amount of compensation payable to them. The claimants appeared before the Special Land Acquisition Officer and claimed compensation at the rate FA/3372/2006 5/17 JUDGMENT of Rs.60,000/- per Acre, i.e. Rs.15/- per sq.mt. However, having regard to the materials placed before him, the Special Land Acquisition Officer, by his award dated December 13, 1995, offered compensation to the claimants at the rate of Rs.10,800/- per Hectare, i.e. Rs.1.08 ps. per sq.mt. The claimants were of the opinion that the offer of compensation made by the Special Land Acquisition Officer was highly inadequate. They, therefore, submitted applications under Section 18 of the Act requiring the Special Land Acquisition Officer to refer their cases to the Court for the purpose of determination of just amount of compensation payable to them. Accordingly, References were made to the District Court, Surendranagar, where they were registered as Land Reference Case No.41 of 1997 to Land Reference Case No.53 of 1997. It may be mentioned that before the Reference Court, the claim of the claimants was that they were entitled to compensation at the rate of FA/3372/2006 6/17 JUDGMENT Rs.75/- per sq.mt. 4. On behalf of the claimants, witness Kalyansinh Manubhai was examined at Ex.24. Over and above stating that the lands acquired were highly fertile, it was claimed by the said witness that each claimant was earning the net income of Rs.35,000/- to Rs.40,000/- per Vigha per year from the sale of agricultural produces such as cumin seeds, cotton, Jiru, etc. The witness further claimed that adjoining to his village Sontha, another village namely Patna was situated from which lands were acquired for the public purpose of construction of Limbdi Branch canal under the Narmada Project. The witness further mentioned that the lands of village Patna, which were previously acquired, were similar in all respects to the lands acquired in the instant case, including fertility, and the claimants were entitled to enhanced compensation on the basis of the previous award of the Reference Court relating to the FA/3372/2006 7/17 JUDGMENT lands of village Patna. The witness produced previous award of the Reference Court relating to the lands of village Patna at Ex.100. The witness further stated that the previous award of the Reference Court relating to the lands of village Patna was confirmed by the High Court and produced a simple copy of the judgment of the High Court rendered in First Appeal No.1580 of 2001 at Ex.101. Though this witness was cross-examined at length by the learned counsel for the appellants, nothing substantial could be elicited nor the assertion made by the witness that the lands which were acquired previously from village Patna were similar to the lands acquired in the instant case could be demonstrated to be untrue. 5. On behalf of the acquiring authorities, witness Pravinkumar Popatlal Patel, who was the Land Acquisition Officer, was examined at Ex.91. The witness mentioned in his examination-in-chief that he had taken into FA/3372/2006 8/17 JUDGMENT consideration all the relevant factors before determining the market value of the lands acquired in the instant case and therefore, the claimants were not entitled to enhanced compensation. However, in cross- examination, the witness admitted that the lands which were acquired in the instant case from village Sontha were irrigated lands and that the boundaries of villages Sontha, Patna and Devalia were common. The witness further admitted that the lands which were acquired from village Patna were just adjoining the lands acquired in the instant case. It was also admitted by him that the sale-deeds produced by him relating to the lands of village Sontha were with regard to non-irrigated lands. It was also admitted by him that each claimant in the instant case was raising crop of cotton, Jiru etc. and was earning good amount. It may be stated that on behalf of the appellants, reliance was placed on sale- deeds relating to the lands of this very FA/3372/2006 9/17 JUDGMENT village which were produced at Ex.80 to Ex.84. 6. On appreciation of evidence adduced by the parties, the Reference Court was of the opinion that the previous award of the Reference Court relating to the lands of village Patna was a relevant piece of evidence and furnished good guidance for the purpose of determining the market value of the lands acquired in the instant case. The learned Judge concluded that the sale-deeds produced by the appellants at Ex.80 to Ex.84 were not relevant for the purpose of determining the market value of the lands acquired in the instant case because they were relating to the non-irrigated lands and the transactions were not reliable as they were entered into between the real sister and brother. In the ultimate analysis, the Reference Court has awarded compensation to the claimants at the rate of Rs.29/- per sq.mt. by the impugned award giving rise to the abovenumbered Appeals. FA/3372/2006 10/17 JUDGMENT 7. This Court has heard Ms.Krina P.Calla, learned Assistant Government Pleader for the appellants and Mr.D.J.Chauhan, learned counsel for the claimants. This Court has also considered the Record and Proceedings of the case received by the Court pursuant to order dated November 21, 2006. 8. Though witness Kalyansinh Nanubhai could not substantiate his claim that each claimant was earning the net income of Rs.35,000/- to Rs.40,000/- per Vigha per year from the sale of agricultural produces, there is no manner of doubt that the lands acquired in the instant case were irrigated lands. This fact stands proved by the contents of 7/12 Extracts produced by the claimants on the record of the case. The record does not indicate that the claimants had claimed enhanced compensation either on the basis of yield or on the basis of comparable sale instances. What was relied upon by the claimants in support of their claim for enhanced compensation was the previous award FA/3372/2006 11/17 JUDGMENT of the Reference Court relating to the lands of village Patna. The said award was produced by the claimants at Ex.100. A perusal of Ex.100 makes it evident that the lands of village Patna, Taluka: Dhandhuka, District: Ahmedabad, were acquired for the purpose of construction of Limbdi Branch Canal of Narmada Project pursuant to publication of two notifications issued under Section 4(1) of the Act in the official gazette on September 24, 1992 and October 21, 1993. Therein, the Special Land Acquisition Officer had offered compensation to the claimants at the rate of Re.00.90 ps. per sq.mt. to the claimants whose lands were acquired pursuant to the notification issued under Section 4(1) of the Act dated September 24, 1992, whereas the claimants, whose lands were acquired pursuant to notification issued under Section 4(1) of the Act dated October 21, 1993, were offered compensation at the rate of Re.00.60 ps. per sq.mt. Feeling aggrieved, the claimants had FA/3372/2006 12/17 JUDGMENT sought References. Accordingly, References were made to the District Court, Ahmedabad (Rural) where they were registered as Land Acquisition Case Nos.2538 of 1996 to 2555 of 1996. Therein, on behalf of the claimants, witness Ratnabhai Popatbhai Bharwad was examined at Ex.35 whereas on behalf of the acquiring authorities, (1) witness Savjibhai Laljibhi Patel was examined at Ex.36, (2) witness Karansinh Mathurbhai was examined at Ex.57 and (3) witness Pallaviben Ghanshyambhai was examined at Ex.47. After considering the evidence adduced by the parties, the Reference Court, by judgment and award dated December 28, 1999, awarded compensation to the claimants at the rate of Rs.28/- and Rs.29/- per sq.mt. respectively as the dates of notification issued under Section 4(1) of the Act were different. Exhibit 101 indicates that the award of the Reference Court dated December 28, 1999, rendered in Land Acquisition Case No.2538 of 1996 and other cognate matters was FA/3372/2006 13/17 JUDGMENT challenged by the acquiring authorities before the High Court but the High Court, by judgment dated April 4, 2001, confirmed the rate of compensation determined by the Reference Court. It is well-settled that a previous award of the Reference Court relating to the lands of a village which has attained finality can be taken into consideration as a good piece of evidence for the purpose of determining the market value of similar lands acquired from the adjoining village. As observed earlier, the assertion made by the witness for the claimants that the lands which were acquired from village Patna were similar in all respects to the lands acquired in the instant case could not be assailed on behalf of the appellants. Therefore, this Court is of the opinion that the Reference Court was justified in placing reliance upon the previous award of the Reference Court relating to the lands of village Patna for the purpose of determining the market value FA/3372/2006 14/17 JUDGMENT of the lands acquired in the instant case. 9. The contention raised on behalf of the appellants that the sale-deeds produced by the appellants at Ex.80 to Ex.84 should have been relied upon by the Reference Court for the purpose of determining the market value of the lands acquired in the instant case and therefore, the impugned award should be set aside, has no merits. It may be mentioned that except Ex.80, Ex.81 to Ex.84 are in respect of non-irrigated lands. Thus, the lands which were subject matter of Ex.81 to Ex.84 are not comparable to the lands acquired in the instant case. Further, Ex.80 was in respect of Bagayat lands and was sold at a consideration of Rs.2,500/- per Acre. However, as held by the Reference Court, the transaction on the face of it is not reliable because the transaction was entered into between the real sister and brother and therefore, tendency to show lesser price in the sale-deed with a view to obliging the Vendee and to avoid stamp duty does not FA/3372/2006 15/17 JUDGMENT stand ruled out. The Reference Court has given cogent and convincing reasons for not acting upon Ex.80 to Ex.84 for the purpose of determining the market value of the lands acquired in the instant case. They are to be found in paragraphs 15 and 16 of the impugned award with which this Court fully concurs. Under the circumstances, the impugned award is not liable to be set aside on the ground that Ex.80 to Ex.84 were not properly considered by the Reference Court while determining the market value of the lands acquired in the instant case. However, there is no manner of doubt that in the instant case, notification under Section 4(1) of the Act was published in the official gazette on September 3, 1992, whereas the notification issued for acquiring the lands from village Patna was published in the official gazette on October 21, 2993. Thus, what was relied upon by the claimants was the award rendered in respect of notification which was later in point of FA/3372/2006 16/17 JUDGMENT time than the publication of notification under Section 4 of the Act in the instant case. It is well-settled that if there is time-gap between the notifications issued under Section 4(1) of the Act, normally, the claimants would be entitled to reasonable rise in price of lands at the rate of 10% p.a. Similarly, if post-notification award is relied upon, this Court is of the opinion that appropriate deduction at the rate of 12% should be made in order to arrive at correct market value of the lands acquired earlier. On the facts and in the circumstances of the case, this Court is of the opinion that the claimants in all would be entitled to Rs.25/- per sq.mt. as compensation for their acquired lands. To this extent, the Appeals filed by the appellants will have to be allowed. 10. For the foregoing reasons, all the Appeals partly succeed. The judgment and award dated September 30, 2004, rendered by the learned Second Joint Civil Judge (Senior Division), FA/3372/2006 17/17 JUDGMENT Surendranagar, in Land Reference Case No.41 of 1997 to Land Reference Case No.53 of 1997, awarding in all compensation to the claimants at the rate of Rs.29/- per sq.mt. is hereby modified and it is held that the claimants in all would be entitled to compensation at the rate of Rs.25/- per sq.mt. for their acquired lands. The other benefits which have been conferred by the impugned award are not interfered with at all and are hereby confirmed. The Appeals are allowed to the extent indicated hereinabove. There shall be no orders as to costs. The Registry is directed to draw decree in terms of this judgment immediately. (J.M.Panchal, J.) (Smt.Abhilasha Kumari, J.) (sunil)