IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEALS Nos. 6184/95 to 6203/95, 5289/95 5290/96, 410/98 to 417/98, 2073/98 to 2078/98 And 1166/97; 269/97 to 275/97, 910/96 to 920/96, 1017/96 to 1050/96, 7/97 to 13/97, 2358/97 to 2359/97 And 2546/97; 989/98 to 995/98, 1880/97 to 1894/97 And 2061/98 to 2066/98. For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA and MISS JUSTICE R.M.DOSHIT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- DEPUTY COLLECTOR Versus LALUBHAI KESHAVBHAI -------------------------------------------------------------- Appearance: Mr.S.N.Shelat, learned Addl.Advocate General with Mr.P.G.Desai, learned G.P. for the appellants in First Appeals Nos.6184/95 to 6203/95, 269/97 to 275/97 989/97 to 995/97, 7/97 to 13/97, 2073/98 to 2078/98, 410/98 to 417/98. Mr.S.N.Shelat, learned Addl.Advocate General with Mr.L.R.Pujari, learned AGP for the appellants in First Appeal Nos.1017/96 to 1050/96, 1880/97 to 1894/97, 910/96 to 920/96. Mr.S.N.Shelat, learned Addl.Advocate General with Ms.Ami Yagnik, learned A.G.P. for the appellants in First Appeal Nos.2061/97 to 2066/97, 1116/97, 5289/96, 5290/96, 2358/97, 2359/97, 2546/97. Mr.Nitin M.Amin, Mr.Sanjay M.Amin, Mr. Y.S.Lakhani, Mr. P.C.Kavina, Mr.Gaurang Bhatt and Mr.M.D.Parikh for the respondents - claimants. Mr.P.J.Kanabar for added respondents Nos.2 and 3 in First Appeal No.272/97 -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA and MISS JUSTICE R.M.DOSHIT Date of decision: 04/05/99 C.A.V.COMMON JUDGEMENT (Per: M.R.CALLA,J) 1. This batch of 127 First Appeals is directed against the order passed in Land Reference Cases decided by the Assistant District Judge, Amreli on various dates with regard to the claimants of villages Amreli, Bakshipur and Giriya, whose lands had been acquired for "THEBI IRRIGATION SCHEME". In each and all these appeals before us, the learned counsel for appellants has challenged enhanced rate of compensation awarded by the Reference Court. Whereas all these Appeals relate to the lands acquired for the same Scheme and the matters involve identical questions based on the facts of each group in which the common orders were passed by the Court while deciding the Land Reference Cases, we propose to decide all these 127 First Appeals by this common Judgment and order. We have divided these Appeals into 14 groups in all with reference to the concerned village and the common order passed by the Reference Court in each of these fourteen groups. 1.1 At the very outset it was pointed out on behalf of the claimants (respondents) that in an identical case i.e. First Appeal No.3119/97 a Division Bench of this Court (Coram: Y.B.Bhatt and C.K.Buch,JJ) had already dismissed the Appeal summarily on 23.2.98 and, therefore, these Appeals may also be dismissed. However, Mr.S.N.Shelat, learned Addl.Advocate General, has submitted that the order dt.23.2.98 has not attained finality and that it was dismissed summarily and he urged that these matters may be heard separately. The contents of this order dt.23.2.98 are reproduced as under:- "CORAM: MR.JUSTICE Y.B.BHATT and MR.JUSTICE C.K.BUCH Date of Order: 23/2/98 ORAL ORDER Heard ld.counsel for the appellants. This appeal has been filed under Sec.54 of the Land Acq.Act read with Sec.96 of the C.P.Code by the State challenging the impugned award passed by the District Court under Sec.18 of the said Act. The impugned judgment, taken in it overall perspective, is in our opinion, not assailable. We agree with the assessment of the evidence on the part of the Reference Court, conclusions drawn therefrom and the findings of fact recorded. The Reference Court has relied upon its decision in a group of Land Acq.Cases decided under Sec.18 of the said Act, the judgment whereof is at Exh.11 in the record of the present reference. There is no dispute that it is a comparable instance. The only contention raised is that the location of two villages in question is different or that the same are located at some distance from each other. Only technically this may seem to be true, but that by itself does not make the same not comparable nor would it result in any appreciable difference so far as determination of the market value is concerned. This aspect has been dealt with in para-9 & 10 of the impugned judgment. Ld. counsel for the appellant is unable to assail the logic and reasoning of the Reference Court in this context. This appeal is, therefore, summarily dismissed. Sd/- (Y.B.BHATT,J) Sd/- (C.K.BUCH,J)" In the facts and circumstances of this case, we find that whereas the present Appeals listed before us have already been admitted, the same are required to be considered separately in detail on merits and, therefore, we have heard these matters in 14 classified groups and proceed to decide the same accordingly. 1.2 Before we take up each group of the Appeals as under, it may be mentioned that on behalf of the appellants as well as claimants certain cases have been cited before us and we find it appropriate to refer to the general principles which have been decided in these cases which we find to be relevant for the purposes of the cases at hand, as have been referred to by the learned counsel for the parties before us. (i) In case of Tarlochan Singh v. State of Punjab, reported in JT 1995(2) SC 91, it was held that sale transactions of small extents of land are absolutely and totally irrelevant and cannot form the basis to determine the compensation. (ii) In case of P.Ram Reddy V. Land Acquisition Officer, Hyderabad, reported in JT 1995(1) SC 593 it was held that while considering the market value fetched by sale of small extents, the Court has to consider the allowances to be made which distinguish the acquired land from the retail plots sold. (iii) In the case of Land Acquistion officer, Chittoor v. L.Kamalamma, reported in AIR 1998 SC 781, it was held that in case of acquisition of large chunks of land, the sale transactions in respect of small extent of land can be relied upon but only after making appropriate deductions and further that when a land is acquired, which has the potentiality of being developed into an urban land, merely because some portion of it abuts the main road, higher rate of compensation should be paid while in respect of the lands on the interior side compensation should be at lower rate, may not stand to reason because when sites are formed those abutting the main road may have its advantages as well as disadvantages. Many a discerning customer may prefer to stay in the interior and far away from the main road and may be willing to pay reasonably higher price for that site. One cannot rely on the mere possibility so as to indulge in a meticulous exercise of classification of the land when the entire land was acquired in one block and, therefore, classification of the same into different categories does not stand to reason. (iv) In the case of Union of India v. Mangatu Ram, reported in AIR 1997 SC 2704, the question as to whether the belting is necessary was answered by the Supreme Court, ofcourse in the circumstances of the case before the Supreme Court, to the effect that when a large extent of land under acquisition comprises of lands of several persons and some lands are abutting the main road and some lands are in the interior, the same would not have the uniform rate of market value. Necessarily, reasonable demarcation/ classification should be made before determination of the compensation. (v) In the case of Union of India v. A.Ajit Singh, reported in AIR 1997 SC 2669, the Supreme Court has observed in para 5 that the High Court in the judgment has noted that the lands are situated in the developed area and are very near to the developed localities belonging to the private parties and Government. Therefore, it possesses the potential value for use for building purposes. The determination of the market value on the basis of such consideration was not vitiated by any error of principle. (vi) In the case of Special L.A.O., Karnataka Housing Board v. P.M. Malappa, reported in AIR 1997 SC 3661, it has been held that the determination of compensation should be based on the potential value of the land existing as on the date of the Notification and not after subsequent developments had taken place. (vii) In the case of Karan Singh v. Union of India, reported in AIR 1997 SC 3889 it has been held that, for the purpose of determination of the market value of the acquired land in case of absence of evidence on transaction of sale of land on or few days before Notification under S.4, under certain conditions, post- notification transactions of sales of lands can be relied upon in determining the value of the acquired land. However, it must be shown by reliable evidence that there was no upward rise in price of land during period of issue of notification and date of sale transaction and further that the award or judgment of the Court may be made the basis for determining value of acquired land, if such judgment or award is previous to Notification under S.4. In para 5 of the Judgment it has been observed that sale of land on or about the issue of notification under S.4 of the Act is stated to be the best piece of evidence for determining the market value of the acquired land. In absence of such evidence contemporaneous transactions in respect of lands which had similar advantages and disadvantages would be the good piece of evidence for determining the market value of the acquired land. In case the same is also not available, the other transaction of land having similar advantages nearer to the date of notification under S.4 of the Act would guide in determining the market value of acquired land. (viii) In the case of Special Deputy Collector v. Kurra Sambasiva Rao, reported in AIR 1997 SC 2625, it was held that, what is fair and reasonable and adequate market value is always a question of fact depending on the evidence adduced, circumstantial evidence, and probabilities arising in each case. The guiding star or the acid test would be whether a hypothetical willing vendor would offer the lands and a willing purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions prevailing in the open market in the locality in which the acquired lands are situated as on the date of the notification under S.4(1) of the Act; but not an anxious buyer dealing at arm's length with throw away price, nor facade of sale or fictitious sales brought about in quick succession or otherwise to inflate the market value. The Judge should sit in the arm chair of the said willing buyer and seek an answer to the question whether in the given set of circumstances as a prudent buyer he would offer the same market value which the court proposed to fix for the acquired lands in the available market conditions. It was also held that sale transaction in respect of acquired land to which the claimant himself is a party is the best evidence and sale transactions of neighbouring lands are also relevant. (ix) In the case of Jai Prakash v. Union of India, reported in AIR 1997 SC 2237, it was held that higher compensation given for lands situated in neighbouring villages is not a ground to claim same compensation. High Court fixing compensation after considering all relevant facts, no interference was required. (x) In the case of Mehta Ravindrarai Ajitrai v. State of Gujarat, reported in AIR 1989 SC 2051 while considering the question of relevancy of sale of adjacent land for the purpose of determining the market value, it was held that agreement of sale five months after S.4 Notification could not be ignored when there was no sharp or speculative rise in price after acquisition. We may point out that while considering each group of the matters hereinafter, we have kept in mind the relevant principles to which we have made a brief reference, as above and have decided the matters applying these principles on the facts and circumstances and the material available in each of the cases. 2. First Appeals Nos.6184/95 to 6203/95 (20 in all) relating to village Amreli are directed against the common order dt.6.5.95 passed in 20 Land Reference cases i.e. main Land Reference Case No.171/93 with 163/93 to 170/93, 172/93 to 181/93, 183/93 (20 in all). For acquisition of the lands concerned in these cases, the Notification under S.4 of the Land Acquisition Act (herein-after referred to as 'the Act') was issued on 15.3.90, the Notification under S.6 was issued on 11.7.91 and the Award was passed by the Land Acquisition Officer on 23.7.93 granting the compensation to the claimants at the rate of Rs.3.50 Ps. per sq.mt. and Rs.5/- per sq.mt. The claimants felt aggrieved and presented Land Reference Cases under S.18 of the Act demanding compensation at the rate of Rs.200/- per sq.mt. The Reference Court, in these cases, has held that the claimants were entitled to the compensation at the rate of Rs.75/- per sq.mt. 2.1 While assailing the Reference Court's common order dt.6.7.95 in these Appeals, it has been submitted that the land in question situated at a distance of 1 to 2 Kms. from the western bank of village Thebi was not comparable with the land concerned in the sale instances cited by the claimants, which pertain to the land near Chital Road of Amreli city. The land near to Chital Road of Amreli City is fully developed land in a posh area of Amreli city. The land, which has been acquired, is situated on the western bank of river Thebi while the land of the instances relied upon by the claimants is on the eastern bank, which is a fully developed area. There is no scope of development of the land on the western bank. It has also been submitted that in this case the acquisition is for a large area as against the sale instances cited by the claimants, which were of small plots. Reference was made to the deposition of Ramniklal Bachhubhai Exh.80 in support of the case that the acquired land is situated outside the municipal limits of Amreli at a distance of 1 to 2 Kms. from Amreli and Chital Road and that the lands acquired are of agricultural lands. Reference was made to sale deeds Exhs.86 to 100. That potentiality of the land situated on the eastern bank of the river Thebi is much more in comparison to the lands situated on the western bank. It has also been submitted that the evidence of Bharat Kantilal Exh.47 and sale instance Exh.40 and that of Bhimji Rami Exh.77 and the Valuation Report Exh.78 could not be relied upon. The Reference Court has erred in appreciating the evidence. 2.2 So far as the location of the land is concerned, there is no dispute that it is situated on the western bank of river Thebi and outside the municipal limits of Amreli but it is also established at the same time from the evidence of Ramniklal Bachhubhai Exh.80, Add. Assistant Engineer of Amreli on behalf of the appellant that the acquired land was only one and half to two Kms. from Amreli-Chital Road. Merely because he has stated that there was no possibility of development of this area, it cannot be accepted that the land in question, which is so near to the Amreli, is not likely to develop. Amreli is a District Head Quarter with various District Offices, modern facilities such as Schools, colleges, medical services roads and telephones etc. The Reference Court has also noted that the State Highway is passing through Amreli and it is connected with all sort of transportation facilities with cities like Ahmedabad and Bombay and Amreli District cannot be aid to be a backward District. In such cases, the mere location on the other bank of the river would not make a very significant difference, more particularly when the distance from the land concerned in the sale instances, relied upon by the claimants, is as short as 1 to 2 Kms. Instances are not lacking in which our own High Court and the Supreme Court has also considered the sale deed documents in respect of the lands situated within 10 Kms. area of the lands under acquisition situated in other villages to be relevant for the purpose of determining the value of the land under acquisition. There is no evidence on record to show that the Dam, which is being constructed on river Thebi, is only at a distance of half Km. from Chital road and this fact has been confirmed by the appellant's witness Ramniklal Bachhubhai in his cross-examination at page 419 of the paper book. The witness Bhikabhai Rami Exh.77, who was examined by the claimants and who had proved the Valuation Report Exh.78, has been working as Government approved Valuer for last 15 years and he has stated that before preparing the Valuation Report Exh.78, five earlier sale deeds of the lands situated nearby the land under acquisition, as also the aspects of future development of the land under acquisition, has been scrutinised by him and the eligibility for compensation of the land under acquisition has been found to be at Rs.100/- per sq.mt. He has also taken into consideration the sale deeds of land transactions for the year 1988 to 1990 while preparing the Valuation Report Exh.78 and we do not find any reason to disbelieve this witness who is a Government Approved Valuer and whose testimony has remained untrammeled. May be that the market value in case of small plots in a developed area is more than that in the case of the acquisition of a large area, but that by itself cannot be a decisive factor to ignore the market value of identical land in the areas in the vicinity. On behalf of the appellants, reference has been made to Exhs.86 to 100. No competent witness was examined to prove the sale instances through these documents and it stands concluded on the basis of the judgment of the Supreme Court in the case of Mehta Ravindrarai Ajitrai v. State of Gujarat, reported in AIR 1989 SC 2051 that unless conversant and competent witness is examined to prove the sale instances, such sale deeds cannot be taken into consideration. As against it, the claimants had examined the concerned witnesses in support of the sale instances through the sale deeds relied upon by them. On the basis of these documents it is clear that the lands were sold at the rate of Rs.150/- to Rs.488/- per sq.mt. with reference to Exhs.35 to Exh.40 during the period 1988 to 1990. It is also clear from the evidence that the agricultural lands of other farmers was acquired for this very Scheme and the compensation was granted at the rate of Rs.50/- per sq.mt. in respect of agricultural lands and Rs.150/- per sq.mt. in respect of non agricultural lands. The only argument, which has been raised against it is that this land in respect of which compensation was granted at the rate of Rs.50/- and Rs.150/- per sq.mt. is situated in a developed area whereas the land under acquisition in this case is outside the municipal limits and it is on account of the difference of important location that this example could not be made use of by the claimants in their favour. Once it has come on the evidence that the land acquired in the instant case is situated only at a distance of about one and half to two Kms., the fact of such a short distance would not render the two lands to be wholly uncomparable. The Reference Court has dealt with this question in detail and has observed that these lands are also situated within the radius of Amreli city and further that the prices, which are increasing from 1988-89 onwards, have also to be taken into consideration at the time of deciding the rate/price. Notification in respect of the lands acquired was made under S.4 in the year 1990, there is large scale increase (in percentage wise) of prices of land day by day, there are possibilities of the development of Amreli city and simply because the National Highway is not passing through from or no direct rail facilities are there, it cannot be said that no development is likely to take place. The Reference Court has also observed that three times difference has been kept between the price of the agricultural and non agricultural land per sq.mt. In some of the cases, in which the compensation for agricultural land has been granted at the rate of Rs.50/per sq.mt. and Rs.150/- per sq.mt. for non agricultural land, are of the year 1988 whereas in this case the Notification under S.4 was issued in 1990 and even the Departmental witness No.2 i.e. Kaushik Maganlal, Deputy Colector, Exh.101 has admitted in his cross-examination that the documents of sale instances are of dates earlier than the date of the issue of the Notification under S.4 in this case. We find that the Reference Court had on analysis of the evidence as a whole and also noticing that the approved Government Valuer, who was examined as a witness, had found that the agricultural land in question was worth Rs.100/- per sq.mt. and for the land on the other bank of the river the compensation had been paid at the rate of Rs.50/per sq.mt., has fixed the rate at Rs.75/- per sq.m.t in these cases and on the basis of the consideration of the evidence in its entirety, it cannot be said that the rate fixed by the Reference Court is unjustifiable or excessive and, therefore, in the opinion of this Court, the order passed by the Reference Court does not warrant any interference. 3. First Appeals Nos.5289/96 and 5290/96 ( 2 in all) relating to village Pratap Pura (Amreli Rural) are directed against the order passed by the Reference Court in main Land Reference Case No.1/94 with Land Reference Case No.2/94 (2 in all) on 12.8.96. In these cases, the Notification under S.4 was issued on 20.1.90 followed by the Notification under S.6 dated 11.6.91. The Land Acquisition Officer passed the Award on 23.7.93 awarding compensation at the rate of Rs.3.50 Ps. per sq.mt. The claimants felt aggrieved and presented the cases under S.18 for land reference claiming compensation at the rate of Rs.100/- per sq.mt. with other statutory benefits. The Reference Court passed the common order deciding both the References on 12.8.96 holding that the claimants were entitled to the compensation at the rate of Rs.75/- per sq.mt. 3.1 In these Appeals the Reference Court's order has been challenged on the ground that the order should not have been passed on the basis of Exh.20 following the judgment reported in 1995(1) G.L.R.1 (State of Gujarat v. Gobar Rupa) and that the Reference Court ought to have considered the facts and the evidence of the land related to Exh.20 and that the two lands are different. 3.2 We find that in this case, no oral evidence has been adduced on behalf of any of the sides. The reliance was placed on documentary evidence only i.e. the previous Award Exh.20 in Land Reference Cases Nos.163/93 to 183/93 dated 6.5.95 and Exh.24 which consist of Village Form Nos.VII-XII and the Valuation Report of concerned sale transaction. Besides this, the claimants have presented a Purshish Exh.21 praying that they have no objection if they are also paid the compensation at the rate of Rs.75/- per sq.mt. as was awarded in the Land Reference Case Nos.163/93 to 183/93. The reference Court has noted