IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 5388 of 1997 to 5408 of 1997 with CROSS FIRST APPEALS NOS. 742 OF 1998 TO 792 OF 1998 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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 -------------------------------------------------------------- BAKULESH MADHUSUDAN Versus DY COLLECTOR & LAO -------------------------------------------------------------- Appearance: MRS KETTY A MEHTA for Petitioners Mr.V.M. Pancholi, AGP for Respondent No. 1 Mr. Kartik Thaker, for M/S TRIVEDI & GUPTA for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE D.P.BUCH Date of decision: 15/09/2000 COMMON C.A.V. JUDGMENT : (Per: Kadri, J.) 1. Appellants-original claimants have filed First Appeals Nos.5388 of 1997 to 5408 of 1997 under Section 54 of the Land Acquisition Act, 1894 ( to be referred to as "Act' for short) read with Section 96 of the Code of Civil Procedure, 1908, for enhancement of compensation by challenging common judgment and award dated July 25, 1997, rendered by the learned Assistant Judge, Surat, in Land Reference Cases Nos. 118 of 1988 to 168 of 1988. 2. First Appeals Nos.742 of 1998 to 792 of 1998 are filed by Acquiring Body, original opponent no.2, namely, National Thermal Power Corporation ('NTPC' for short), challenging the aforesaid common judgment and award. By impugned common judgment and award, learned Assistant Judge had determined market value of acquired lands of village Mora, Taluka: Choriyasi, District Surat, at the rate of Rs.20/- per sq.mtr as on February 21, 1986. 3. As common question of facts and law arise for our consideration, we propose to dispose of all these appeals by this common judgment. 4. Chief Project Manager (GTPP), Delhi, made a proposal on December 16, 1985, to the State Government for acquiring agricultural lands situated at village Mora, Taluka Choriyasi, District Surat, for the purpose of 'Gas Base Thermal Power Project' for NTPC. The said proposal was scrutinized by the State Government and preliminary notification to acquire lands of the claimants was issued under Section 4(1) of the Act which came to be published in the Government Gazette on February 21, 1986. Deputy Collector, Choriyasi, was appointed as Land Acquisition Officer for the above acquisition proceeding, who, after following usual procedure under Section 5 of the Act, had forwarded his report to the State Government as contemplated by Section 5A(2) of the Act. On consideration of the said report, the State Government, having satisfied that 230 Hectares of lands, out of which 138 Hectares of land belonged to Government whereas 92 Hectares were agricultural lands belonged to private owners of village Mora, which were specified in the notification published under Section 4(1) of the Act, were needed for the public purpose, made declaration under Section 6 of the Act which was published in the Government Gazette on April 29, 1986. Interested persons were, thereafter, served with notices under Section 9(3)(4) of the Act for determination of compensation. The claimants appeared before the Land Acquisition Officer and claimed compensation at the rate of Rs.1,50,000 per Acre, but, having regard to the materials placed before him, the Land Acquisition Officer made his award on January 18, 1988 by dividing acquired lands into three categories and offered compensation for (a) acquired lands situated at north of Surat-Hazira State Highway at the rate of Rs.35,000/- per Hectare, i.e. Rs.3.50 ps per sq.mtr. (b) acquired lands situated towards south of Surat-Hazira Highway at the rate of Rs.32,000/- per Hectare, i.e. Rs.3.20 ps per sq.mtr. (c) acquired lands situated towards interior south of Surat-Hazira State Highway, at the rate of Rs.30,000/per Hectare, i.e. Rs.3.00 ps per sq.mtr. The Land Acquisition Officer, by his award, offered compensation of Kharaba land, admeasuring 0 Hectare 30 Are 36 sq.mtr., at the rate of Rs.1.00 per sq.mtr. 5. The claimants were of the opinion that the compensation offered by the Land Acquisition Officer was inadequate. Therefore, they submitted applications in writing under Section 18 of the Act requiring the Land Acquisition Officer to refer the applications to the Court for determination of adequate compensation. Accordingly, references were made to the District Court, Surat, which were numbered as Land Reference Cases Nos. 118 of 1988 to 168 of 1988. All the land reference cases came to be consolidated and the parties led common evidence in Land Reference Case No.140 of 1988. In the applications, it was claimed that compensation offered by the Land Acquisition Officer for acquired lands was too low and the Land Acquisition Officer had not taken into consideration quality of land and various sale instances produced on behalf of the claimants. It was claimed that it was not proper for the Land Acquisition Officer to consider and compare saline lands which were acquired for Reliance Industries Limited at the rate of Rs.30,000/per Hectare for the purpose of determination of market value of present acquired lands. It was further claimed that government land admeasuring 138 Hectare 46 Are 43 sq.mtr of village Mora was sold at the rate of Rs.450/- per Are, which was not at all taken into consideration by the Land Acquisition Officer while offering market price of acquired lands. It was further claimed by the claimants that the same lands were placed under acquisition for the purpose of Gujarat Electricity Board by notification under Section 4(1) of the Act dated April 16, 1984, and the said acquisition was canclled and no intimation about cancellation of notification was given to the claimants and, therefore, the claimants were entitled to compensation from the date of first notification and the Land Acquisition Officer should have considered this fact and should have granted interest from that date. It was further pleaded that the Land Acquisition Officer ought to have considered existence of GIDC Industrial Zone, Hazira Ship Yard, Port Complex, ONGC, GSPLS, KRIBHCO Industries, Larsen & Toubro Industrial Complex which indicated that the whole area was declared as industrial zone and the Land Acquisition Officer should have considered existence of those industries and the development which was in existence prior to date of notification under Section 4(1) of the Act. It was further pleaded that village Mora was included in Hazira Area Development Authority (HADA) and present acquired lands were placed in the residential zone and that aspect was not taken into consideration by the Land Acquisition Officer for fixing market price of acquired lands. The claimants, further, pleaded that area where present acquired lands were situated was fast developing and many industries and residential premises of the Housing Board had also come up, which aspect was not taken into consideration by the Land Acquisition Officer. The claimants further stressed that, because of acquisition, they had become landless and had suffered heavy financial loss. It was claimed that the Land Acquisition Officer should have fixed market price of Karabha land on par with other acquired lands. It was further claimed that the Land Acquisition Officer had erred in relying upon report of NTPC and L & T by holding that acquired land was of low level and its fertility was badly affected because of tides and flood waters of sea and river Tapti. The claimants, further, stated that finding of the Land Acquisition Officer that acquired lands were away from Hazira-Surat State Highway and were 3 to 5 feet below the sea level was totally wrong. It was claimed that all acquired lands were having high fertility and were of even level. The claimants, in the reference applications, had claimed compensation at the rate of Rs.3750 per Are for their acquired lands. It was, further, stated that family members of the claimants, whose lands were acquired, were not taken in service by NTPC or were not provided facility on priority basis in allotment of shops in the township of NTPC and another benefits. 6. The Land Acquisition Officer filed written statement at Exh.6, inter alia, contending that all the materials placed before him were properly appreciated before fixing market price of acquired lands. It was, further, averred that the Land Acquisition Officer had considered all the sale instances, situation of acquired lands and had properly divided lands into three categories, considering the distance from the State Highway as well as nearness to the sea-shore and Tapti river. It was averred that the claimants had made exaggerated claim in the reference applications. Compensation offered by the Land Acquisition Officer was just and adequate and, therefore, applications be dismissed with costs. 7. Appellant-NTPC filed written statement at Ex.10, inter alia, contending that it was not correct that market price of the lands in vicinity of acquired lands was Rs.254.50 ps per sq.mtr or that the claimants were entitled to claim compensation at the rate of Rs.250 per sq.mtr. It was contended that sale instance of Survey No.650 of village Hazira was 15 kms away from acquired lands and, therefore, the Land Acquisition Officer was justified in not taking into consideration said sale instance for fixing market price of acquired lands. It was further contended that sale instances relied upon by the Land Acquisition Officer were comparable with present acquired lands. It was admitted by the Acquiring Body that notification issued for acquisition of GEB was not cancelled, but, for that, the NTPC cannot be held responsible for the period prior to date of notification issued for the purpose of NTPC. It was denied that there was development of GIDC Industrial Zone, Hazira Ship Yard, Port Complex, ONGC, GSPLS, KRIBHCO Industries, Larsen & Toubro Industrial Complex in the vicinity of acquired lands at the time of issuance of notification under Section 4(1) of the Act. It was contended that acquired lands were in low lying area and were affected by tides and monsoon water. It was further averred that the claimants had accepted the amount awarded by the Land Acquisition Officer without protest and, therefore, the claimants were not entitled to file applications under Section 18 of the Act and, hence, the applications be dismissed with costs. 8. The Reference Court consolidated all the reference cases and the parties had led common evidence in Land Reference Case No.140 of 1988, which was treated as main Land Reference Case. On the basis of rival assertion of the parties, the Reference Court framed common issues at Exh.12. The claimants, in support of their claim of enhanced compensation, examined following witnesses:- I. Maganbhai Nathabhai Patel Exh.21 II. Thakorebhai Mathabhai Patel Exh.84 III Jagdishbhai Rambhai Patel Exh.165 IV Rameshbhai Bhagabhai Patel Exh.259 V Harkishanbhai Icchhubhai Patel Exh.261 VI Ful Mohmed Ismail Exh.262 VII Jahagir Jamshedji Bhathena Exh.264 VIII Jaikishandas Nagarji Patel Exh.268 IX Yogeshbhai Mapabhai Patel Exh.269. The claimants produced certified copies of 7/12 extracts of acquired lands vide Exh.151, 174 to 250, sale deeds at Exh.102 to Exh.142, Exh.143 and Exh.144, reference to which shall be made at the appropriate stage. Award of the Land Acquisition Officer was produced at Exh.22. The claimants had also produced development map at Exh.88 issued by HADA. 9. On behalf of the appellant-NTPC, following witnesses were examined. I Vimalchandra Jeshmal Kotari, Senior Manager ( O & M ) - Civil of NTPC, at Exh.288 II Deputy Manager (Personnel & Admn.), Mr. Sivastian Joseph, at Exh.297 III Executive Training Personnel Mr. Dhuratai Seshalapati Rao, at Exh.307 IV Avdheshkumar Srikrishna Chandra Sharma, Engineer, Construction Division of NTPC, at Exh.314. The appellants produced survey report at Exh.285; copies of letter written by Deputy General Manager, Mr. J.N. Sinha, to the Secretary, Revenue Department, dated January 24, 1990, at Exh.295; award of Land Acquisition Officer with regard to lands of village Mora which was acquired for GIDC by issuance of notification dated March 4, 1986 at Exh.315; and award of Land Acquisition Officer in respect of lands acquired for GIDC for village Hazira by notification issued on February 12, 1987 at Exh.316. 10. The Reference Court, on appreciation of oral as well as documentary evidence produced by the parties, deduced that sale deeds relied upon by the claimants were not relevant and comparable for the purpose of determination of market value of present acquired lands. The Reference Court further deduced that sale deeds Exh.102 to 130 were in respect very small area of non-agricultural lands. The Reference Court further deduced that sale deed Exh.144, which was in respect of land bearing Survey No.523, admeasuring 2 Acre 11 Gunthas, situated at village Ichhapore, was not genuine sale transaction, because vendor Jaikishandas Exh.268 had admitted in his cross examination that the said land was sold to pay up dues of his debtors and for some personal expenses and vendee, Dineshchandra Shankerlal Patel, was his close relative and he was also in need of land and said Dineshchandra Shankerlal Patel had paid price of land as demanded by him. The Reference Court was of the opinion that survey report Exh.285 indicated that acquired lands were useful and beneficial to NTPC for establishment of thermal power station as water, electricity and road facilities and H.B.J. gas pipeline were available for establishment of said thermal power station. The Reference Court discarded different categorisation of acquired lands as done by the Land Acquisition Officer in his award. The Reference Court deduced that, in earlier acquisition of village Kawas, the Court at Surat had passed various awards, more particularly the award related to lands of village Kawas which were acquired for the purpose of Hazira Industrial Colony by the GIDC, notification of which under Section 4(1) of the Act was published in the year 1988 and the Reference Court at Surat had determined market value of acquired lands of village Kawas at the rate of Rs.25/per sq.mtr. against which the original claimants had filed appeals in the High Court of Gujarat and the High Court of Gujarat had enhanced determination of market value of acquired lands of village Kawas at the rate of Rs.33/per sq.mtr. The Reference Court further observed that the State Government and Acquiring Body had preferred appeals in the Supreme Court, being Civil Appeals Nos.11924 of 1996 to 11934 of 1996 arising from SLP (C) Nos. 18 of 1995 to 69 of 1995 wherein the Supreme Court had reduced amount of compensation to Rs.22/- per sq.mtr. after deducting 1/3rd from the amount of determination of market value under the head of development charges. The Reference Court had determined market value of present acquired lands of village Mora, relying upon the judgment of the Supreme Court rendered in Civil Appeals nos.11924 of 1996 to 11934 of 1996 at the rate of Rs.20/- per sq.mtr. The Reference Court had extended statutory benefits under Sections 23(1-A) and 23(2) of the Act, in favour of the original claimants, which has given rise to filing of these appeals by the appellants-claimants as well as the Acquiring Body. 11. Learned counsel, Mrs. Ketty A.Mehta, appearing for the claimants, learned advocate Mr. Kartik Thakar, for M/s. Trivedi & Gupta, appearing for the Acquiring Body, learned Assistant Government Pleader Mr. V.M. Pancholi, appearing for the State Government, have taken us through the entire voluminous record produced before the Reference Court. 12. Learned counsel for the original claimants submitted that determination of market value by the Reference Court at the rate of Rs.20/- per sq.mtr. was based on mere conjectures and the Reference Court had erred in deducting development charges. Learned counsel for the claimants contended that sale deeds Exh.102, 103, and 104 were in all respects comparable instances, which reflected market price of lands under the said sale deeds at the rate of Rs.68.47 per sq.mtr. and the said sale deeds were executed in near proximity of time of issuance of notification under Section 4(1) of the Act. The learned counsel for the original claimants further submitted that acquired lands were having potentiality because in the year 1984 same lands were placed under acquisition for the purpose of Gujarat Electricity Board and the said notification was not cancelled. Learned counsel for the claimants further submitted that due to potentiality of lands, same lands were again placed under acquisition for the purpose of NTPC, which showed that lands had potentiality and the said lands were suitable for establishment of gas-based thermal power station and the said lands had other facilities like water, electricity, road and gas pipeline. Learned counsel for the claimants further submitted that lands of village Mora and adjoining villages of Kawas, Icchapore, etc were placed in Hazira Town Development Scheme, 1985, which aspect was not taken into consideration by the Reference Court while determining market value of present acquired lands. Learned counsel for the claimants further submitted that acquired lands were having industrial potentiality as, in the nearby locality, ONGC, Reliance Industries, L & T, and KRIBHCO had established their industrial units. Learned counsel for the claimants further stressed that Survey Report Exh.285 indicates that acquired lands were more suitable to establish gas-based thermal power station because of existing facilities of Surat-Hazira road, high tension electricity supply and H.B.J. gas pipeline. Learned counsel for the claimants contended that the Reference Court had erred in deducting 5% for acquired lands which were new tenure lands in view of the reported decision of the Supreme Court in the case of State of Maharashtra vs. Babu Govind Gavate, reported in AIR 1996 Supreme Court 904 and, therefore, the appeals filed by the claimants be allowed. 13. Mr. Kartik Thaker, learned counsel for the Acquiring Body, submitted that determination of market value by the Reference Court at the rate of Rs.20/- per sq.mtr was based on no evidence as the Reference Court had already discarded sale instances relied on by the claimants and, therefore, there was no material available before the Reference Court for determination of market value and, therefore, the reference applications ought to have been dismissed. Learned counsel for the acquiring body further submitted that acquired lands were highly uneven and having no potentiality because due to flood, waters of river and sea, the lands had become marshy and having no fertility and the said lands were lying idle since last many years as deposed by the witnesses examined by the Acquiring Body. Learned counsel for the Acquiring Body emphathetically submitted that acquired lands were lying in fallow wherein no crops were raised and grass was grown because of water stagnation and due to tide of sea which was just near the acquired lands. Learned counsel for the Acquiring Body further submitted that, for acquired lands belonged to the State Government, market value was fixed at Rs.4.50/- per sq.mtr. and, therefore, the Reference Court had erred in awarding compensation of private acquired lands to the claimants at the rate of Rs.20/per sq.mtr. Learned counsel for the Acquiring Body further submitted that, for lands situated in village Ichhapore which were acquired in 1982 for KRIBHCO, the High Court had determined market value at the rate of Rs.12/- per sq.mtr and, therefore also, determination of market value at the rate of Rs.20/- per sq.mtr was highly excessive and the appeals filed by the claimants be dismissed and the appeals filed by the Acquiring Body be allowed. Learned counsel for the Acquiring Body submitted that, when the Reference Court had disregarded all the sale transactions produced by the claimants, there was no other alternative left to the Reference Court but to reject the reference applications filed by the claimants by upholding the compensation awarded by the Land Acquisition Officer. Learned Assistant Government Pleader, Mr. V.M. Pancholi, has adopted arguments advanced by learned counsel for the Acquiring Body. 14. Before dealing with the contentions of learned advocates for both the parties, it is necessary to appreciate the evidence on record. Claimants witness No.1, Maganbhai Nathabhai Patel, Exh.21, did not appear before the Reference Court for cross examination and, therefore, his evidence is of no importance and the Reference Court had rightly rejected his evidence. Claimant witness No.2, Thakorebhai Nathabhai Patel, Exh.84, had described situation of acquired lands. As per his evidence, present lands were previously acquired in the year 1984 for the purpose of Gujarat Electricity Board. However, the said acquisition was never cancelled but, in the year 1986, acquisition proceeding was again initiated and present acquired lands were notified for the purpose of establishment of thermal power station by notification under Section 4(1) of the Act on February 21, 1986. The witness deposed that acquired lands were situated near Hazira-Surat State Highway and Magdalla Bridge was situated near acquired lands, which connected village Kawas with Sachin and Palsan. His evidence indicated that village Kawas was situated at a distance of 2 kms from acquired lands. He also deposed that, before issuance of notification of present acquired lands, railway line was already laid for KRIBHCO plant which was nearer to acquired lands. He stated that the said railway line was extended upto Gothan Railway Station. The witness, during his deposition, produced sale deeds Exh.102 to Exh.142. The witness deposed that village Mora was having facilities of bank, post office, high tension electricity, gas pipeline and irrigation. In cross examination, the witness deposed that high quality of grass was grown on acquired lands which was used as fodder for their cattle. Evidence of this witness does not establish that, except grass and low quality crops, such as juwar, crops of good quality were grown on the acquired lands. 15 Claimants' witness, Rameshbhai Bhagabhai Patel, Exh.259, deposed that government land, which was placed under acquisition, was at low lying area and was uneven. He deposed that, before the Land Acquisition Officer, they had claimed compensation at the rate of Rs.1,50,000/- per Acre, but, after gathering evidence in nature of sale deeds, and after having realised that their lands were likely to fetch more price, had claimed enhanced compensation at the rate of Rs.10 lakhs per Acre. He deposed that, when notification of present acquired lands was published, KRIBHCO, ONGC, L & T, ESSAR, and Reliance Industries had already established their units in Hazira Industrial Township. He deposed that they were raising crops of cotton, wheat, juwer and grass on acquired lands. In cross examination, the witness admitted that crop of cotton was raised on acquired lands during years 1980-1982 and since 1982 no crop of cotton was raised on acquired lands. He, further, admitted that in between 1982-1986, no crops of wheat and juwar were raised on acquired lands and only high quality of grass was grown on acquired lands which was mainly used for tethering cattle. 16 To prove sale transactions, the claimants had examined Harkishanbhai Icchhubhai Patel, Exh.261. He deposed that he was owner of land bearing Survey No.42, situated at village Kawas. He further deposed that he also owned lands bearing Survey Nos.613 to 615 of village Icchapur. He deposed that he had converted his land situated at village Kawas into non-agricultural use and the same was, thereafter, divided into plots each admeasuring 14 ft x 45 ft. He claimed that each plot was sold at Rs.4000/-. During his deposition, he proved sale deeds Exh.102 to 130 for sale of plots to different persons. In cross examination, the witness admitted that lands of village Kawas were falling under residential zone in the development plan. The witness admitted that he divided his lands into plots in the year 1984-85 and the land was converted into N.A. use in the year 1985-86. 17 Claimants' witness No.6, Ful Mohmed Ismail, at Exh.262, deposed that he had purchased plot admeasuring 750 sq.ft for residential purpose from Champabhai Narayan Modi and had paid consideration of Rs.9999/-. He further deposed that the Deputy Collector had imposed penalty for not showing correct market price of document of sale and correct price was assessed by the Deputy Collector at Rs.14840/- instead of Rs.9999/-. The witness