FA/2914/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2914 of 2008 To FIRST APPEAL No. 2930 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 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 ? ====================================== SPECIAL LAQ OFFICER AND OTHERS Versus HURIBEN WD/O ALI MUSA ABRAHAM ====================================== Appearance : MR SS SHAH, GOVERNMENT PLEADER with MS TRUSHA PATEL, AGP for Appellants. MS RENU SINGH for MR YN RAVANI for Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/08/2008 COMMON ORAL JUDGMENT 1. By way of these appeals, the appellants have challenged judgment and award dated 31-12-2004 passed by learned Civil Judge (S.D.), Bharuch in Land Acquisition Reference Nos.113 to 134 of 1997, whereby FA/2914/2008 2/6 JUDGMENT said reference cases were partly allowed and the claimants are held entitled to get Rs.1770/- per Are as additional amount of compensation and orders regarding solatium and interest were also made. 2. The facts in brief, as emerging from record, are as under: 3. Lands of original claimants situated in the sim of village Kurchan, Taluka-Amod, District – Bharuch were acquired for the purpose of construction of Tanchha Sub Minor Canal under Narmada Project. For that purpose, Notification under Section 4 of the Land Acquisition Act was published on 4-6-1992 and Notification under Section 6 of the Act was published on 22-3-1995. After following due process of law, Special Land Acquisition Officer awarded compensation at the rate of Rs.270/- per Are by his award dated 30-8-1995. Being aggrieved by aforesaid award of Special Land Acquisition Officer, claimants have preferred References under Section 18 of the Land Acquisition Act. While deciding said reference cases, after considering the evidence on record and after hearing both the sides, learned Senior Civil Judge (S.D.), Bharuch has observed as under in paragraph 10 of the judgment: “10. So far as exh.15-previous award is concerned, those have been passed for the lands acquired, which were situated nearby 1.5 to 2 km. from the acquired land, therefore, that award is relevant for the determination of the value of the land under references. Learned 3rd Jt.Civil Judge (S.D.), Bharuch was pleased to award Rs.1000/- per ARE and difference between the notification under Sec.4 of the Act, is for the period of six years. So far as the price rise is concerned, the Honourable Gujarat High Court and Honourable Apex Court has time and again held that 10% price rise would be just and proper. But learned Advocate FA/2914/2008 3/6 JUDGMENT Shri Parmar for the claimants brought to my notice recent reported case, wherein the Honourable Supreme Court has awarded aggregate and progressive rise, Therefore, naturally the potentiality of the lands under the case before the Honourable Supreme Court would be the higher than the lands under references. But it is not in dispute that the difference between notification under Section 4 between present references of previous award is 6 years, meaning thereby the difference is more than for 3 years, and hence, if the progressive price rise at the rate of 10% is given, it would be just and proper. In view of the above discussion, I am of the opinion that the claimants are entitled for Rs.1770/- per ARE inclusive of progressive prise rise at the rate of 10% alongwith consequential benefit under the Land Acquisition Act. Hence, I answer issue No.1 & 2 accordingly.” 4. In view of above observations, reference Court partly allowed said reference cases and held the claimants entitled to received Rs.1770/- per Are as additional amount of compensation by the impugned judgment. Being aggrieved by it, the appellants have filed this appeal. 5. Heard Ms.Trusha Patel, learned AGP appearing for the appellants and learned advocate, Ms.Renu Singh for the respondents. 6. Learned AGP, Ms.Patel appearing for the appellants submitted that while granting additional compensation, learned Judge has failed to appreciate that the claimants could not prove that compensation awarded by Special Land Acquisition Officer is inadequate and improper. She also submitted that while granting additional amount as compensation, learned Judge has committed an error by considering FA/2914/2008 4/6 JUDGMENT progressive rise in the price of the lands at 10% and compensation should have been awarded at flat rate. She, therefore, submitted that judgment and award of the reference Court may be quashed and set aside. 7. On the other hand, learned advocate, Ms.Renu Singh appearing for the respondents supported the judgment of the Reference Court and submitted that this Court being appellate Court may not reverse the finding of the Reference Court in view of decision of the Apex Court in the case of OM PRAKASH (DEAD) BY LRS. AND OTHERS v. UNION OF INDIA AND ANOTHER reported in (2004) 10 SCC 627, wherein it is held as under in paragraph 11: “11. In the circumstances, the High Court was justified in working out the fair market value of the lands in question on the basis of Rs. 16,750/- per bigha as on 30-10-1963. The High Court noticed that in several judgments of this Court escalation at different and varying rates i.e. 6% per annum from 1959 to 1965, @ 10% per annum for every year from 1966 to 1973 and @ 12% per annum from 1975 had been considered to be reasonable increase to arrive at the fair market value, assuming that the pace of escalation during this period was normal for the entire period from 1959 onwards. Since no material was placed on record to show that there was any abnormality during the period, the High Court applied the same principle to the facts and circumstances before it, and accepted increase of 10% every year progressively from 1963 to 1973 and thereafter @ 12% every year progressively up to the date of acquisition. The High Court noticed in the judgment that if escalation is FA/2914/2008 5/6 JUDGMENT allowed on this basis, the fair market value would be Rs.1,28,889/- per bigha. In case progressive increase is allowed @ 10% for the entire period, the amount will work out to Rs. 1,08,397/- per bigha. Allowing appreciation @ 12% for every year, not cumulatively, but at a flat rate of 12% per annum from 1963 to 1983, the amount would work out to Rs. 56,112/- per bigha. The High Court in its judgment under appeal pointed out that the market value of Rs. 16,750/- per bigha fixed in the case of Dharambir and others v. Union of India was not in respect of commercial land but only of agricultural land. That the market value of agricultural land is much lower than that of land suitable for commercial purposes, is trite. After having worked out the market value of the lands on various bases and keeping in view the fact that between 8-12-1982 and 2-6-1983, the lands in question had at least some commercial potentiality, the High Court decided that the fair market value of all categories of lands situated in the villages in question as on the date of acquisition should be fixed at Rs. 82,255/- per bigha.” 8. I have considered the submissions made on behalf of the parties and also gone through the judgment of the reference Court and other relevant documents. In my view, reference Court has rightly relied upon earlier award while awarding amount of compensation by computing progressive rise at 10% and the same is in accordance with the decision of the Apex Court in Om Prakash and Others (supra). Therefore, the view taken by the reference Court is just and proper and the same is not required to be interfered with. No other evidence is shown to me to take a contrary view. FA/2914/2008 6/6 JUDGMENT 9. For the reasons stated herein above, these appeals deserve to be dismissed and the same are dismissed with no order as to costs. (K.S.Jhaveri, J.) /malek