IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 322 of 2002 to FIRST APPEALNo 414 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE N.G.NANDI and Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------- KALABHAI GOPALBHAI Versus SPECIAL LAND ACQUISITION OFFICER -------------------------------------------------------------- Appearance: MR AJ PATEL for Appellants MR AD OZA, GP for Respondents in FA Nos. 322 to 368/2002 MS MANISHA LAVKUMAR, AGP for Respondents in FA Nos. 369 to 414/2002 -------------------------------------------------------------- CORAM : MR.JUSTICE N.G.NANDI and MR.JUSTICE J.R.VORA Date of decision: 09/05/2002 COMMON C.A.V.JUDGEMENT (Per : MR.JUSTICE J.R.VORA) 1. All these Appeals filed under Section 54 of the Land Acquisition Act, 1894 read with Section 96 of the Code of Civil Procedure, 1908 are directed against the common judgment and award dated 31st March, 2000 rendered by learned Second Jt. District Judge, Kheda at Nadiad, in Land Reference Cases No. 2201/94 (Main) with other 92 allied cases. 2. The chequered history of all these matters reveals that the Executive Engineer of Narmada Project for Main Canal had proposed to the State Government to acquire agricultural lands of village Sanadara, Taluka Thasara, Dist. Kheda for the purpose of construction of Narmada Main Canal. On scrutiny of the said proposal, State Government was satisfied that agricultural lands of village Sanadara were likely to be needed for the said public purpose. Accordingly, different Notifications under section 4(1) of the Land Acquisition Act, 1894 ("the Act" for short) were issued and published on different dates during the month February to June of 1990. Accordingly, the land owners were served with the notices and they had filed their objections against the proposed acquisition. After considering their objections, the Special Land Acquisition Officer had forwarded his report to the State Government as contemplated by Section 5A(2) of the Act. On consideration of the said report, State Government was satisfied that the lands which were specified in the different notifications issued under section 4(1) of the Act were needed for the public purpose of construction of Narmada Main Canal. Accordingly, different declarations under Section 6 of the Act were made and published in the Official Gazette as detailed in para 1 of the impugned judgment. Thereafter, the claimants were served with notices for determination of compensation. The Land Acquisition Officer by different awards awarded compensation to the claimants at the rate of Rs. 300 per Are. The claimants made applications in writing requiring Special Land Acquisition Officer to refer the matters to the Court for redetermination of compensation. Accordingly, references were made to the District Court, Kheda at Nadiad. The Reference Court on appreciation of evidence determined the market value of the acquired lands on the yield basis at the rate of Rs.1600/- per Are, vide judgment and award dated February 20, 1998, as against the claims of claimants for Rs.10,000/per Are. 3. Being aggrieved with the aforesaid judgment/award dated February 20, 1998, by learned Extra Asst. Judge, Kheda at Nadiad, claimants filed First Appeals No. 3558 to 3650/98. The State Government also filed Cross Objections in the above said First Appeals. Those First Appeals had been decided by the Division Bench of this Court (Coram: J.M. Panchal & M.H. Kadri, JJ) vide judgment and order dated 16th February, 1999. After hearing of the parties, this Court set aside the judgment/award and remanded the reference cases for redetermination of market value of the land acquired observing as under : "6. The learned counsel for the parties have prayed that detailed reasons be not given while passing this judgment which this court proposes to pass, lest the reasons may not affect adversely the interest of the parties concerned. Therefore, we do not propose to pass a detailed order, but would indicate reasons for passing this order in brief. All the parties agree that the conclusions reached by the Reference Court are unsustainable on settled principles of law and determination of compensation on yield basis is contrary to principle of law enunciated by the Supreme Court in Special Land Acquisition Officer, Davangera vs. P. Veerabhadarappa, AIR 1984 SC 174. On going through the impugned award, we find that determination of compensation is not made on legal, valid, reliable, acceptable and relevant evidence. The award is vitiated by error apparent on the face of the record and it is difficult for this Court to embark upon appreciation of evidence and come to a conclusion or record a finding that the market value determined by the Reference Court is just, fair and reasonable. Moreover, the parties have filed three different applications seeking permission of the Court to lead additional evidence at appellate stage. By filing these applications, the claimants as well as the acquiring body propose to rely upon previous awards of reference Courts and judgment of the High Court in respect of similar lands, to enable the Court to determine market value of the acquired lands. Additional evidence also cannot be taken into consideration by the Court unless it is proved that the previous awards of the Court including judgments of the High Court, were rendered in respect of lands similar to the acquired lands. In Civil Application No. 982/99 filed by the Acquiring Body for permitting it to lead additional evidence, a prayer is also made to remit the matters to the reference Court to enable the parties to lead evidence and Mr. A.J. Patel, learned counsel for the claimants has stated at the Bar that the matters be remitted to the reference Court with liberty to all the parties to lead evidence afresh. On overall view of the matter, we are satisfied that this is a fit case to remit the matters to the Reference Court for redetermination of compensation after giving opportunity to all the parties to lead evidence in support of their respective cases. ............ The impugned award dated February 20, 1998 rendered by the learned 2nd Extra Assistant Judge, Kheda at Nadiad is hereby set aside. All the appeals are remitted to the Reference Court for redetermination of compensation in accordance with law. The parties will be entitled to lead evidence in support of their respective cases before the Reference Court and after hearing the parties, appropriate award redetermining compensation shall be passed by the Reference Court........... 4. Thus this Court set aside the judgment/award dated 20.2.1998 and remanded the reference cases for retrial and to decide the cases afresh. 5. Thereafter, parties were allowed to lead evidence and after hearing the parties, the learned Second Jt. District Judge, Kheda at Nadiad, vide order dated 31st March, 2000 by common judgment, came to the conclusion that the claimants in all cases are entitled to compensation at the rate of Rs. 1250/- per Are with consequential statutory benefits. 6. Being aggrieved with the impugned judgment dated 31.3.2000 of the Reference Court, the claimants have filed present First Appeals. 7. While remanding the cases in above mentioned First Appeals to the Reference Court, as said above, this Court in the order dated 16.2.1999, as aforesaid, observed that the references were decided on yield method and that was not sustainable method for determination of the market value and hence impugned order dated February 20, 1998 of the learned Second Extra Assistant Judge, Kheda at Nadiad, was set aside with liberty to the parties to adduce evidence afresh. 8. At retrial , the claimants side produced voluminous oral as well as documentary evidence while the State Government chosen not to adduce any evidence. Mainly the evidence which would be required to be discussed in these First Appeals which is produced by the claimants in the shape of oral evidence of Bhagwanbhai Trikamdas, Exh.190, who is one of the claimants, who deposed about the produce of his land and the other lands under acquisition. The next witness who was examined required to be discussed is Ashokbhai Chimanbhai Patel, Exh.200 who is Commission Agent, to whom one of the claimants had sold tobacco, to ascertain what was the price of the tobacco at the relevant time. The third witness examined at Exh.202 is Mr. Motibhai Somabhai Patel, an expert in agriculture who in his deposition, stated that he determined the market value of the land under acquisition on the yield basis and prepared a report which is at Exh.203. Another witness Balusinh Gulabsinh Gohil is at Exh.209, who was Talati-cum-mantri of the Revenue Department at village Lasundara and this witness produced Annewari Patrak at Exh. 210 regarding the produce of village Lasundara. It is pertinent to note that lands of village Lasundara were also acquired for the same purpose and attempt on behalf of the claimants is made that the lands of village Sanadara covered under the present acquisition are more fertile than the land of village Lasundara and, therefore, this witness is examined and Annewari Patrak of village Lasundara is produced and like wise witness Vijaykumar Trikamlal Patel examined at Exh. 211 who was Talati-cum-mantri of village Sanadara at relevant time and he produced Annewari Patrak i.e. Annual Crop Produce of village Sanadara, which is the subject matter of present acquisition. The Annewari Patrak produced by this witness is at Exh.212. In addition to this, State Government has adduced the relevant maps on record. The claimants have also placed copies of revenue record like Village Forms No. 7/12 and other Village Forms on record. 9. Learned Sr. Advocate Mr. A.J. Patel, on behalf of the appellants - claimants, in all these Appeals, contended that the Reference Court fell into error in relying upon the awards of village Vaghroli, situated in Thasra Taluka, wherein the High Court on filing the appeal by the State Government, being First appeal No. 27/86, confirmed the compensation at the rate of Rs. 1150/- per Are. It was also contended that the Reference Court fell into error in relying on the Awards of village Baladha in First Appeal No. 2880/98 of this Court and of village Menpura, in both the cases the compensation was confirmed by the High Court at the rate of Rs.1150/- per Are. Mr. Patel argued that though the lands acquired of village Baladha, Menpura and Vaghroli, are the lands acquired for the same purpose, vide Notifications under ection 4(1) of the Act in 1990 but in all these three cases this Court in First Appeals passed an award on consensus of the State Government and with the consent of the respective claimants. Mr. Patel cited some cases to advance the principle that awards and judgments rendered by consensus and consent of the parties, cannot be treated as precedent nor the same can be followed as such, as has been done by the Reference Court in the present case. Referring to said Awards of village Menpura, Vaghroli and Baladha, Mr.Patel contended that in all the three cases, this High Court recorded that the award were passed in respective cases by consent of the parties and were not to be treated as precedent. It is urged, therefore, that the Reference Court ought not to have taken into consideration the awards passed by the High Court with the consent of the parties as the same cannot be treated as a precedent. 10. Mr.Patel further urged that claimant Bhagwanbhai Trikmbhai Exh. 190 has deposed about the produce of his land, and in support, revenue entries are also produced. Mr. Patel further argued that vide Exh. 202, Motibhai Somabhai Patel, who is expert in agriculture and has qualification of Doctorate in Agriculture, through the yield of the crops, prepared the report in respect of the valuation of the land which is under acquisition. Valuation report is at Exh. 203 and accordingly on yield method having regard to the market value of the crop, which is being produced on land mostly of tobacco, millet, wheat, etc., the expert witness in his report fixed Rs. 41.20 ps as the market value per square meter of the acquired land. After deducting expenses, Mr. Patel argued further that the claimants are entitled to compensation atleast at the rate of Rs. 29 to 30 per sq. meter in view of the evidence of this expert and the claimant Motibhai Somabhai Patel; that the Reference Court, however, failed to appreciate this evidence produced by the claimants. As against this, no evidence at all was produced by the respondent State Government before the Reference Court. Mr. Patel further argued that almost in the same year, i.e. in 1990 lands of village Lasundara were acquired by the State Government for the same purpose i.e. for the Narmada Canal. It is argued that village Lasundara is situated at a distance of 8 to 10 Kms from village Sanadara which is subject matter of present acquisition. It was urged that for the lands of village Lasundara, this Court in First Appeal Nos. 4330/98 to 4501/98 vide order and judgment dated 7th May, 1999 (Coram : M.R. Calla & R.P.Dholakia, JJ), awarded Rs. 19/- per sq. meter as against Rs. 100 per sq. meter claimed by the claimants. In fact, these appeals were filed by the State Government against the award of Rs. 19/- per sq. meter by the Reference Court which was confirmed by this High Court vide above said judgment. The SLP filed in the Supreme Court was dismissed and so far as village Lasundara is concerned, Rs.19/- per sq. meter was finalised. Having based his arguments on this fact, Mr. Patel further urged that sufficient evidence was adduced before the Reference Court, which established that the lands of village Sanadara, which is the subject matter of the present acquisition were much more fertile than the lands acquired of village Lasundara, for which the market price was finally determined at the rate of Rs.19/- per sq.meter. Mr. Patel argued that at Exh. 209 Balusinh Gulabsinh Gohil and at Exh. 211 Vijaykumar Trikamlal Patel, Talati-cum-mandri of village Lasundara and Sanadara respectively were examined as witnesses in the Reference Court. They produced Annewari Patraks at Exh. 210 and 212 of village Lasundara and Sanadara respectively. Comparison of Annewari Patraks of both the villages i.e. Sanadara and Lasundara has been placed for the perusal of this court in the paper book and according to Mr. Patel, the land of village Sanadara is more than two times fertile than the land of village Lasundara. It was argued that the Annewari Patraks denote the rich production of crop in a year at village Sanadara. The base year is 1990-91 and, therefore it was urged that while Rs.19/- per sq.meter is determined for the village Lasundara, claimants of village Sanadara are entitled to have the market rate fixed two times more than what had been fixed and determined for Lasundara. It was vehemently urged by Mr. Patel that the village Lasundara might be at the distance of 8 to 10 Kms from village Sanadara. Mr.Patel contended that it is the fertility of the land which is material and not the distance. For this reliance is placed on the decision of this Court in the matter of COLLECTOR OF PANCHMAHALS vs. DESAI KESHAVLAL PANALAL, reported in 1969 (10) GLR 931, wherein this Court has held that when the fertility of the land is similar than the distance of two furlongs or some miles, would not make difference in assessing the market value of the land. Mr. Patel also relied upon the decision of the Apex Court in the matter of The STATE OF MADRAS vs. A.M. NANJAN, reported in AIR 1976 SC 651 in support of his argument that the distance between the lands is not material. It was urged therefore that it is not the distance which is material but the fertility of land which is required to be taken into consideration. It was urged that the Reference Court did not even touch this issue for the appreciation though there was voluminous evidence on record. 11. Mr. Patel lastly contended that the evidence of expert is the best method to evaluate the market price of the land and for this he relied upon the decision of the Apex Court in the matter of THE SPECIAL LAND ACQUISITION OFFICER vs. SRI SIDDAPPA OMANNA TUMARI, reported in AIR 1995 SC 840, wherein in para 17, the Supreme Court observed that when a report of an expert is got produced by the claimant before the Court giving market value of the acquired lands, the court may, choose to act upon such report if the same is based on authenticity. Mr. Patel also relied upon the decision of the Apex Court in the matter of THAKARSINBHAI DEVJIBHAI VS. EXECUTIVE ENGINEER, GUJARAT, reported in 2001 AIR SCW 2417, wherein the Supreme Court has observed that distance between similarly situated lands and presently acquired lands was not relevant. It was argued that earlier in First Appeals Nos. 3558 to 3650 of 1998, this Court remanded the matter to the Reference Court for deciding afresh and in the last direction this Court permitted the parties to adduce evidence and as such the evidence of expert and the fertility of the land was got produced by the claimants, which was not considered by the Reference Court and on the contrary, the Reference Court merely relied upon the awards of this Court pertaining to village Vaghroli, Baladha and Menpura wherein all these three cases, this High Court specifically observed that none of these cases shall be treated as precedent because award was passed by consent. Ultimately, it was urged that on the evidence on record, the claimants be awarded at least Rs. 29/- to 30/- per sq. meter as compensation for the acquisition of their lands. 14. On the other hand, learned AGP Ms. Manisha Lavkumar on behalf of the State firstly drew our attention to para 6 of the judgment in First Appeal Nos. 3558 to 3650/98 and argued that it is clear from the observation that the Court was pleased to remand the matter because the market value was arrived at by yield method and according to this court, the yield method was not legal and valid method to arrive at the market value. It was urged that this Court relied upon the decision of the Apex Court in the matter of SPECIAL LAND ACQUISITION OFFICER DAVANGERE vs. P. VEERABHADARAPPA, reported in AIR 1984 SC 774, wherein the Supreme Court has disapproved the method of evaluating the market value through yield basis. Learned AGP further contended that the opinion of the expert is solely based on the yield method to arrive at market price of the land. It was urged that what was disapproved by this Court was again resorted to by the claimants in some other shape and, therefore, in view of the decision of the Apex Court and the observations of this Court while remanding the matters to the Reference Court, the evidence of expert solely based on yield method, suffers from basic infirmity and cannot be relied upon. It was also urged that an attempt on behalf of the claimants to show that the land of village Sanadara is more fertile than the land of Lasundara is also futile because Lasundra is at the distance of 15 Kms from Sanadara and cannot be taken as base for arriving at market price for the lands of village Sandara. It was urged that the lands of village Lasundara cannot be said to be comparable/similarly situated land to the lands of village Sanadara because of the distance of 15 kms in between two villages. 15. Learned AGP drew the attention to the maps produced before the Reference Court and argued that the lands of village Vaghroli, village Baladha, village Menpura, village Salun and village Sandehli are contiguous land within the radius of short distance amongst them. These villages situated around village Sanadara, undoubtedly can be taken to be similarly situated to the land of village Sanadara. It was urged that though in the awards passed for the lands of village Vaghroli, Baladha and Menpura, being consent awards, may not be taken into consideration, but at the same time, the award passed by the Land Acquisition Officer may be taken into consideration, and for this, learned AGP relied upon some decisions. Learned AGP further argued that for the lands of these villages which are contiguous including Sanadara, the Land Acquisition Officer granted Rs. 3 per sq. meter and therefore it is evident that the claimants are not entitled to the more amount than what is granted for the lands of the above villages which are similarly situated. It was argued that though the Reference Court had no advantage to consider the decision in regard to village Salun and Sandheli because when the Reference Court decided the matters by impugned order, the First Appeals in respect of lands of village Salun and Sandheli were pending before this court and now for the lands of village Salun which is only 2 to 3 Kms away from the land under the present acquisition, this Court in First Appeal No. 6009 to 6035/98 vide its order dated 21st of December, 2001 (Coram: B.C. Patel and S.D. Dave, JJ) approved the market price at the rate of Rs. 16 per sq. meter while for the lands of village Sandheli, which is 2 to 3 Kms away from village Sanadara, which is subject matter of the present acquisition, this Court in First Appeals No. 1432/99 to 1493/99, approved the market price for the lands of village Sandheli at the rate of Rs. 18 per sq. meter. It was therefore urged that Lasundara not being the comparable instance, the rests are being nearer and similarly situated lands, if any upward revision of market price is considered proper, then, the upward revision cannot be more than Rs.16/- per sq. meter. 16. All these First Appeals came up for admission hearing on 22.2.2002 before the Division Bench (Coram: B.J. Shethna & N.G. Nandi, JJ) and the Appeals were admitted. 17. Having regard to the contentions raised on both the sides, the question which is posed before this Court is whethr the market price fixed by the Reference Court at Rs. 12.50 per sq. meter is just and reasonable and if any upward revision is required, then to what extent? In view of the contentions raised and the voluminous evidence produced on behalf of the appellants, this is an exceptional case wherein the principles of determining the market price in Land Reference Cases is required to be restated. 18. Heavy burden of proof is cast upon the claimants to prove by cogent and adequate evidence that the amount awarded by the Land Acquisition Officer is not adequate and reasonable. This burden is undoubtedly, to adduce relevant and material evidence to establish that the acquired lands are capable of fetching higher market value than the amount awarded by the Land Acquisition Officer/reference court. Needless it is to say that the object of inquiry in a Reference under section 18 of the Act is to bring on record the price which the land under acquisition was capable of fetching in the open market as on the date of the Notification under Section 4(1) of the Act. It is necessary to assess always the relative situation of the acquired land, the nature of the land, its suitability and even the use of the land on the date of the Notification under section 4(1) of the Act. The special distinctive feature if the land possessed, is also the relevant factor, to be taken into consideration in determining the market value. There cannot be two views that all these are the questions of fact. Therefore, the paramount duty of the courts of fact