C/FA/5759/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO.5759 of 2008 With CROSS OBJECTION NO.38 of 2008 In FIRST APPEAL NO.5759 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/- ===================================================== 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 =================================================== ADDITIONAL LAND ACQUISITION OFFICER & 1 Appellant(s) Versus RAJENDRAKUMAR JIVANLAL BAKSHI & 1....Defendant(s) =================================================== Appearance: MR ALKESH N. SHAH, AGP for Appellant(s) No.1-2 MR VIJAYN RAVAL, ADVOCATE for Defendant(s) No.1-2 =================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 18/02/2014 ORAL COMMON JUDGMENT (1) By this appeal under Section 54 of the Land Acquisition Act, 1894 (the Act) read with Section 96 of the Code of Civil Procedure, 1908, the appellants have challenged judgment and award dated 30.11.2007 passed by 2nd Additional Senior Civil Judge, Godhara in Land Acquisition Reference No.1 of 1998. Page 1 of 10 C/FA/5759/2008 JUDGMENT The respondents-original claimants have filed cross-objection and have claimed Rs.200/sq. mtr. as compensation. (2) The lands belonging to the respondents- original claimants situated at Village Halol, Dist. Panchmahals, were sought to be acquired for the public purpose of development of State Highway by the State Government. Notification under Section 4 of the Act was issued on 20.10.1994 followed by the declaration under Section 6 of the Act, which was made on 27.07.1995. Proceedings so initiated culminated into the award under Section 11(1) of the Act, which was made and declared by the Special Land Acquisition Officer on 30.09.1997 whereby he awarded Rs.5/sq. mtr., for agricultural land and Rs.35/sq. mtr., for non-agricultural land as compensation for the lands under acquisition. (3) Being dissatisfied with the amount of compensation so awarded by the Special Land Acquisition Officer, the respondents-original claimants raised a dispute as provided under Section 18 of the Act, which came to be referred to the Reference Court and the same was registered as Land Acquisition Reference No.1 of 1998. The appellants raised demand of Rs.200/ sq. Page 2 of 10 C/FA/5759/2008 JUDGMENT mtr. as compensation. After considering the evidence adduced before it and on appreciation of the same, the Reference Court, vide the impugned judgment and award determined the market value of the lands under acquisition at Rs.185/sq. mtr. and awarded Rs.150/sq. mtr., as additional compensation along with other statutory benefits under Sections 23(1A), 23(2) and 28 of the Act. (4) Being aggrieved by the judgment and award of the Reference Court, the State has preferred this appeal and the respondents-original claimants have filed cross-objection, as aforesaid. (5) Heard Mr.Alkesh Shah, learned Assistant Government Pleader for the appellant-State and Mr.Vijay N. Raval, learned counsel for the respondents-original claimants. (6) Learned Assistant Government Pleader for the appellants, relying upon the judgment and award of the Division Bench of this Court rendered in Cross-Objection No.213 of 2001 in First Appeal Nos.3988 to 3999 of 2001 dated 15.02.2002, contended that the lands which were acquired under the said acquisition being Survey Nos.265, 289/1 and 270 are adjoining to the lands belonging to the respondents-original claimants. It was further contended that taking the said Page 3 of 10 C/FA/5759/2008 JUDGMENT market value as determined by this Court as base, the respondents-original claimants would be entitled to 10% increase per year and therefore the respondents-original claimants would be entitled to Rs.115/Sq.Mtr. as compensation. It was, therefore, contended that the Reference Court has erred in determining the market value at the rate of Rs.185/sq. mtr. and has wrongly awarded Rs.150/sq. mtr. as additional compensation. 7. Learned counsel for the appellants further contended that as far as the nature, potentiality and the quality of the lands are concerned, the same are similar to the lands of the previous judgment of the Division Bench of this Court. It was, therefore, contended that the same has to be applied in its true letter and spirit as it is best comparable evidence available on record. It was further contended that even while determining the market price the Division Bench of this Court has considered the potentiality of the lands so acquired and therefore no separate or additional compensation should have been awarded by the Reference Court only because the lands under acquisition are non-agricultural lands. It was contended that the appeal be allowed and the cross-objection filed by the respondent-original claimants deserve to be dismissed. Page 4 of 10 C/FA/5759/2008 JUDGMENT 8. Per contra, learned counsel for the respondents-original claimants has contended that the lands in question are non-agricultural lands. It was contended that on appreciation of evidence on record the Reference Court ought to have determined the market value of the lands under acquisition at Rs.200/sq. mtr. It was further contended that considering the development of Halol, which is a Nagarpalika area, the Reference Court ought to have awarded Rs.200/sq mtr. It was therefore contended that the appeal filed by the State deserves to be dismissed and the cross- objection filed by the respondent-original claimants be allowed. No other and further submissions are made by learned counsel for the respective parties. 9. On perusal of the record and proceedings of the Reference Court, it appears that the original claimant was examined at Exh.14. The respondents- original claimants have also produced the revenue record in form of Village Form No.7/12 (at Exh.12). The respondents-original claimant have also produced on record the previous award passed in Land Acquisition Reference No.3 of 1998 dated 14.03.2005. Page 5 of 10 C/FA/5759/2008 JUDGMENT 10. It may be noted that the appellant-State has not adduced any oral evidence. 10. The Reference Court has, on appreciation of the evidence on record, considered the previous award wherein the market value was fixed at Rs.115/sq. mtr. The Reference Court has also noted that the lands under acquisition are situated in the Nagarpalika i.e. Halol and considering the fact that the lands are situated in a rapidly developed area, has considered the potentiality of the lands being commercial. The Reference Court has also considered that the lands under acquisition are situated in a developed area and comparing the market value of the adjacent land, which was acquired for similar purpose, has determined the market value of the lands under acquisition at Rs.185/sq. mtrs. the Reference Court has rightly considered the fact that the lands under acquisition in the present case are itself non-agricultural lands and taking the base of the market value of the adjacent land at Rs.115/sq. mtr. (for agricultural land) has determined the market value of the lands under acquisition (non-agricultural lands) at Rs.185/sq. mtr. The appellant has not led any evidence to show that though the lands are non- agricultural lands are of any inferior quality or that the geographical location of the lands under Page 6 of 10 C/FA/5759/2008 JUDGMENT acquisition is such that the same would affect adversely the market value. In light of these, therefore, on re-appreciation of the evidence on record, this Court is of the opinion that the Reference Court has committed no error in determining the market value of the lands under acquisition @ Rs.185/sq. mtr. 11. The respondents-original claimants have not brought on record any further evidence to show that the market value so determined by the Reference Court @ Rs.185/sq. mtr. is not the correct market value. On over all re-appreciation of the evidence this Court is of the opinion that the judgment and award impugned in this appeal deserves to be confirmed and the cross-objection filed by the respondent-original claimants deserve to be dismissed. 12. It is also appropriate to note Division Bench of this Court in First Appeal Nos.3988-3990 of 2001 have determined the market value of the lands acquired at Halol @ Rs.115/sq. mtr. Notification under Section 4 of the Act before the Division Bench was dated 28.09.1994 whereas in the instant case notification under Section 4 of the Act is dated 20.10.1994. Division Bench of this Court in the said appeals has observed thus: Page 7 of 10 C/FA/5759/2008 JUDGMENT “6. However, Shri Sheth, learned counsel for the respondents-claimants submitted that the claimtns were entitled for Rs.100/- per sq.mtr. in view of the aforesaid judgment of this Court. In fact, according to Mr.Sheth, the claimants would have been entitled for Rs.115/- per sq.mtr., because in the case before the Division Bench, the acquisition was of 1989 whereas in the instant case, the acquisition is of 1994. However, as the claimants had initially claimed only Rs.100/- per Sq.Mtr., before the Land Acquisition Officer. Therefore, Rs.100/- per Sq.Mtr. Should have been awarded by the Reference Court. He, therefore, submitted that their cross objections be allowed and they should be awarded remaining additional amount of Rs.27.70 ps. Per Sq.Mtr. in all Rs.100/- per Sq.Mtr. 7.This was strongly objected by Shri Sen. Ld.AGP, submitted that mere difference of 5 years in issuance of notification under Section 4 would not entitle the claimants to claim remaining additional sum of Rs.27.70 ps. Per sq.mtr. However, Shri Sheth Ld. Counsel for the claimants relied upon the Division Bench judgment of this Court in the case of Special Land Acquisition Officer, Bharuch Vs. Motibhai Mohanbhai reported in 1997(2) GLH 773 and the judgment of this Hon'ble Court in the case of Deputy General Manager, ONGC Vs. Chaturji Lalaji & Others reported in GLR 39(1) 130 and submitted that the claimants are entitled for grant of 10% increase per annum. 8.There is lot of force in the submission made by Mr.Sheth, learned Counsel for the respondent-claimants. His submission is duly supported by the aforesaid 2 judgments of the Division Bench of this Court in Motibhai Mohanbhai's Case (Supra) and Chaturji Lalaji's Case (Supra). 9.In fact, relying upon the judgment of the Division Bench of this case in Motibhai Mohanbhai (Supra), the Division Bench of this Court (Coram: M.R.Calla & D.H.Waghela,JJ.) by its judgment dated 29.03.2001 allowed the cross objections and award additional Rs.36/- per Sq.Mtr. 10. In view of the above, while dismissing the first Appeal filed by the appellants, we have no option but to allow the cross objections and taking 10% increase, it would definitely come much more to Rs.100/- per Sq.Mtr. but the claimants had restricted their claim to Rs.100/- per Sq.Mtrs. before the land Acquisition Office, and therefore, we cannot grant more than what was claimed by claimants before the Land Acquisition Officer. However, they are entitled Rs.100/- per Sq.Mtr. Thus, they are entitled for remaining additional sum of Rs.27.70 per Sq.Mtr. for the lands which were acquired by the impugned Page 8 of 10 C/FA/5759/2008 JUDGMENT notification. Thus, in all, the respondent-claimants are entitled to Rs.100/- per Sq.Mtr. for the lands which were acquired under the impugned notification. 11. In view of the above discussions, all the above appeals filed by the appellants fail and are hereby dismissed with costs whereas the aforesaid cross- objections filed by the respondents-claimants succeed to the extent that all the respondents-claimants are entitled to be paid in all Rs.100/- per Sq.Mtr. instead of Rs.72.32 per Sq.Mtr. award by the Land Acquisition Officer and the Reference Court. The cross-objections are partly allowed with costs. All the consequential benefits and stationary benefits including interest on solatium under Section 23(1) of the Land Acquisition Act and other consequences shall follow regard to all other items under consideration. Decree be drawn accordingly.“ 13. The aforesaid judgment relates to agricultural land situated at Halol. On re- appreciation of the evidence, this Court is of the opinion that the Reference Court has considered all vital factors and has rightly determined the market value of the lands under acquisition being non-agricultural lands at Rs.185/sq. mtr. and has thus rightly awarded Rs.150/sq. mtr. as additional compensation along with statutory benefits under Sections 23(1A), 23(2) and 28 of the Act. 14. In light of the aforesaid therefore, the present appeal deserves to be dismissed and is hereby dismissed. Cross-objection are also meritless and is hereby dismissed. Judgment and award dated 30.11.2007 passed by 2nd Additional Senior Civil Judge, Godhara in Land Acquisition Page 9 of 10 C/FA/5759/2008 JUDGMENT Reference No.1 of 1998 stands confirmed. Decree be drawn accordingly. Appellants shall deposit the remaining amount of compensation, if not deposited, within a period of 04 (four) weeks from the date of receipt of this judgment. Parties to bear their own costs. 15. Registry is directed to send the record and proceedings to the Reference Court forthwith. 16. Registry is also directed to place a copy of this order in the connected matter. Sd/- (R.M.CHHAYA, J) *** Suchit/Bhavesh Page 10 of 10