IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 1537 to 1542 of 1988 WITH FIRST APPEAL No. 1547 to 1552 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT and MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes 3. Whether Their Lordships wish to see the fair copy of the judgement? No 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? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- STATE OF GUJARAT Versus KHANT KANJI RANA -------------------------------------------------------------- Appearance : Mr. PG Desai, GP for Appellant in First Appeal No. 1537 & 1538 of 1988 Mr. LR Pujari, AGP for Appellant in First Appeal No. 1539 & 1540 of 1988 Mr. AJ Desai, AGP for Appellant in First Appeal No. 1541 & 1542 of 1988 MR PV HATHI for Respondent No. 1 in F.A. Nos. 1537 to 1542 of 1988 and Advocate for the Appellant in F.A. No. 1547 to 1552 of 1988 Mr. P.G.Desai, GP for the Res.in First Appeal No. 1547 & 1548 of 1988 Mr. L.R. Pujari, AGP for the Res. in First Appeal No. 1549 & 1550 of 1988 Mr. A.J. Desai, AGP for the Res. in First Appeal No. 1551 & 1552 of 1988 -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT and MR.JUSTICE J.R.VORA Date of decision: 18/12/97 ORAL COMMON JUDGEMENT: In this group of 12 Appeals under Section 54 of the Land Acquisition Act, 1894, we are called upon to consider and adjudicate upon as to whether the impugned common judgment and resultant awards for compensation to the original claimants for the acquisition of their lands in treating and taking as non-agricultural properties though in reality and admittedly, the lands of the original claimants are agricultural, and some of them are jirayat, and some of them are bagayat, and including some kharabha portions, by its common judgment, dated 30.3.1988, at the additional rate of Rs.20 per sq.yard setting aside the award of the Land Acquisition Officer dated 26.10.1981. 2. A conspectus of the material facts giving rise to the present group of Appeals is required to be narrated at this juncture hereunder: 3. The appellants in First Appeal Nos. 1547 of 1988 to 1552 of 1988 and the respondents in First Appeal Nos. 1537 to 1542 of 1988 are the original claimants, whose agricultural lands came to be acquired by the State of Gujarat pursuant to the Notification published in official gazette on 2.10.1980 under Section 4(1) of the LA Act followed by the publication of the Notification dated 5.12.1980 under Section 6(1) of the LA Act for the purpose in connection with Uben Irrigation Scheme. 4. The agricultural lands of the original claimants are situated in the outskirts of village Bhatgam. Some of the lands are irrigated and some of the lands are non-irrigated. The acquisition was done by observing requisite procedure by the Land Acquisition Officer concerned, including the report under Section 5(c) and under Section 9 of the Act. It is also noticed from the record and from Form No.12 that lands bearing Revenue Survey No. 154, 155 and 156 were non-irrigated lands, whereas lands bearing Survey Nos. 159 and 157 were irrigated lands and lands forming part of Survey No.156 was of Kharaba land. 5. All the acquired lands situated at village Bhatgam in Junagadh District were of old tenure lands. Village Bhatgam is at the distance about 15 kms from the Taluka headquarter and the nearest railway station is at the distance of 20 kms known as Veraval railway station. The total population of the village Bhatgam was about 2000 persons when the acquisition process commenced. 6. The Land Acquisition Officer, by his Award dated 2.10.1988 offered the compensation in respect of acquired land, at the rate of Rs. 90 per Are for non-irrigated land and Rs. 130 per Are for irrigated land, whereas he offered Re.1 per Are for kharabha land. He also awarded solatium at the rate of 15 per cent. No advance amount had been paid to the claimants. Pursuant to the award of the Land Acquisition Officer, he offered total amount of Rs.2,03,522.46ps in respect of acquired lands of the claimants under Section 11 of the LA Act. 7. Therefore, it can very well be visualised that the Land Acquisition Officer offered 0.90ps per Sq. meter in case of non-irrigated land, and Rs. 1.30ps per sq. meter in case of irrigated land, and Re.1 for kharabha land. 8. The claimants being dissatisfied by the award of the Land Acquisition Officer in respect of the acquired lands, six land reference cases came to be filed under Section 18 at the instance of the original claimants in the court. The District Court at Junagadh, registered the six Reference Cases under Section 18, which came to be forwarded by the Collector, being Land Reference Case Nos. 100/82 to 105/82 wherein an amount of Rs.40 per sq. yard came to be demanded by the claimants in Case No. 100/82, 102/82 and 102/82 whereas claimants in Reference Case Nos. 101/82, 104/82 and 105/82 made a claim of Rs. 57 per sq. meter. 9. The viva voce evidence led by the parties is consisted of following witnesses: 1. Mohan Kanjibhai - Exhibit 12 2. Sardulbhai Jivabhai - Exhibit 21 3. Ramji Jiva - Exhibit 23 4. Sangram Jiva -Exhibit 24 5. Gokal Nanji - Exhibit 25 6. Valjibhai Ghelabhai - Exhibit 27 7. Vallabh Vasaram - Exhibit 30 8. Premji Bijal - Exhibit 35 9. Dhirajlal Gobarbhai - Exhibit 37 10. Mulu Karshandas - Exhibit 38 11. Chandulal Dharmashi Jalawadiya - Exhibit 42 12. Sevantilal Popatlal Doshi - Exhibit 45 9. The Reference Court also placed reliance on the documentary evidence produced, at Exhibit, 29, and Exhibit 32. The sale instances prior to the date of the Notification under Section 4(1), which came to be gazetted, on 2.10.1980, and other documentary evidence to which reference will be made by us hereinafter as and when required, at the appropriate stage. 10. The Reference Court upon the assessment of the evidence led before it, after hearing the rival versions, partly allowed the References and enhanced the amount of compensation at additional rate of Rs. 20 per sq. yard in respect of acquired lands categorising, and treating all parcels of lands under acquisition as if they were non-agricultural properties, and also awarded the benefit emanated from the provisions of Section 23(1-A) of the LA act with interest and cost. 11. Being dissatisfied by the award recorded by the District Court at Junagadh, in the aforesaid group of Land Reference Cases, both the parties have come up before us challenging the legality and validity of the common judgment and awards in respect of the acquired lands by filing six appeals by each side, the numbers whereof we have indicated hereinbefore. That is how, we have taken up the entire group of 12 appeals for adjudication by a common judgment for the simple reason that the common questions are involved against the common judgment. 12. Learned Assistant Government Pleader Mr. A.J. Desai has raised following contentions for our consideration: (1) That the Reference Court has committed serious illegality in treating and tying the lands in the entire group of matters as non-agricultural one whereas, in reality the acquired lands were agricultural at the relevant time. (2) That the Reference Court has not followed the permissible legal principles and aspects in making the assessment of market value of the acquired lands. (3) That the Reference Court has also committed illegality in granting the benefit of the provisions of Section 23(1-A) of the LA Act. (4) That the reliance placed by the Reference Court on two sale instances, is not only misplaced but is not merited, for the simple reason that they were not in respect of agricultural lands and, therefore, it was contended that they were not comparable sale instances. 13. The learned Advocate Mr. Hathi while appearing for the original claimants, has countenanced the aforesaid contentions and has contributed following contentions and submissions in course of marathon hearing before us. (1) That the Reference Court has rightly treated the acquired lands as non-agricultural lands for the purpose of making assessment of market value, and resultant compensation to the claimants. He has submitted that the acquired lands have been put to use for the purpose of establishment of a township, in view of the fact that the erst while Bhatgam came to be submerged because of Uben Irrigation Project. It is in this context, he submitted that though character of the acquired lands is of agricultural, could be taken as non-agricultural for the purpose of assessment of market value and compensation as there were building potentialities, and they were acquired for the purpose of establishment of a township. Thus, he has tried to justify the approach adopted by the Reference Court. (2) That the Reference Court has assessed the market value of the acquired lands higher but has not given effect to that because some of the claimants made claim at the rate of 40 per sq. yard, and three claimants made claim at the rate of Rs. 57 per sq. yard. In other wards, it was vehemently contended that the Reference Court ought not to have taken the claim of the amount incorporated in the reference as a market value. Thus, he has also criticised the approach of the Reference Court. (3) That the sale instances at Exhibits 29 and 32 are rightly relied on by the Reference Court inasmuch as they came to be executed prior to the date of Notification of the acquired land like that, 2.10.80 and proving them upon the evidence of one of the vendors or vendee. (4) That the amount of compensation awarded by the Reference Court is on lower side and is required to be upwardly revised in the light of the sale instances placed on record and in absence of any other documentary evidence on the part of the acquiring authority. 14. Both sides have also placed reliance on number of authorities to which also reference will be made by us at the appropriate stage hereinafter. 15. LA Act is designed to empower the government to compulsorily acquire lands including the building for the public purpose upon giving the amount of just and reasonable amount of compensation to the affected parties. Therefore, the LA Act itself remained on the statute book for beyond a century, is indeed, providing statutory provisions for the acquisition of lands for public purpose and for companies. It can very well be seen from the aim and object of the preamble of the LA Act that it is devised and designed: (i) to amend the law for the acquisition of land needed for public purposes and for Companies, and (ii) to determine the amount of just and reasonable compensation to be paid on account of such acquisition. This is in short, the claim and the deceleration of the L.A. Act. We, at this juncture, do not propose to divulge further examination and meticulous exercise insofar as objects and aims of the L.A. Act are concerned. 16. The mechanism for acquisition of the land is provided in the L.A. Act. The acquisition machinery and procedure are elaborately incorporated in Part-II in Sections 4 to 17. After undergoing the aforesaid statutory exercise, the government or the authority concerned is empowered to acquire lands for the public purposes. 17. In the event of any dissatisfaction to the owners of the lands or the claimants by the award of the Land Acquisition Officer recorded under Section-11 has the remedy, which is prescribed in Section 18 in Part-III. Part-III as such deals with the provisions relatable to the court and procedure drawn in Section 18(2) read with Section 20(a). Part-IV deals with apportionment of compensation, but, we are not concerned in the present group of Appeals, whereas Part-V makes provisions for effecting payment to the concerned claimants. 18. Insofar as the aforesaid question, in context, is concerned, we are called upon to determine and adjudicate upon, as to whether the assessment of the market value of the acquired land and resultant amount of compensation awarded to the respondents claimants, by its common judgment and award, requires modification, alteration and, if yes, downwardly or upwardly, in view of the six appeals filed by the claimants and the six appeals filed by the acquiring authority - state of Gujarat. It is, therefore necessary, first to examine the material evidence emerging from the record and the submissions for the purpose of ascertaining as to whether the assessment of market value made by the Land Acquisition officer or the determination of the market value as a common rate of amount claimed in the references by the claimants, is legal, valid or justified or not. With a view to ascertaining the merits of the appeals and the challenges against them, we have gone through dispassionately, the testimonials, schemes and the documentary evidence relied on by the parties and emerging from the record, and have given long patient hearing to the learned advocates appearing in this group of 12 appeals. 19. The Land Acquisition Officer while awarding an amount of compensation at the rate of 0.90ps per sq. meter for non-irrigated land, and Rs. 1.30 per sq.meter in case of irrigated land, and Re.1 per sq.meter in respect of kharabha land came to be quashed by the Reference Court and substituted the amount of compensation, treating all the acquired lands as non-agricultural lands at the rate of Rs. 20 per sq.meter which is directly under challenge before us in this group of 12 appeals. 20. Before we divulge and deal with the rival submissions raised before us, which are hereinabove and also the host of the case laws relied on, we deem it expedient and appropriate to articulate the following aspects, which have remained, unchallengeable & unquestionable. (1) The acquired lands are situated at the outskirts of village Bhatgam. (2) The nature and the character of the acquired lands is falling in three categories, viz. (i) irrigated, (ii) non-irrigated and (iii) waste land (kharabha land). (3) The acquired lands are in the area of undeveloped region. In other words, at the time of acquisition of the lands, the said parcels of lands were in undeveloped state. (4) The acquired lands are admittedly agricultural lands. Some of them are irrigated (bagayat land) and some of them are non-irrigated (jirayat land) and part of them are also waste land (kharabha land). 21. It is noticed that the Land Acquisition Officer has placed reliance on the revenue record and the evidence, awarded an amount of compensation for the acquisition of the land into three categories: (i) The acquiring authority like State of Gujarat has not led any evidence before the Reference Court in terms of sale instances. (ii) Two sale instances are relied on by the original claimants which are admittedly not in respect of agricultural properties and despite that they came to be exhibited as comparable sale instances by the Reference Court. (iii) The lands covered by the sale instances produced at Exhibits 29 and 32 are, no doubt, prior to the date of the notification under Section 4(1) of the L.A.Act, insofar as, the acquired lands are concerned. Therefore, they could be considered for the purpose of adjudicating upon the controversy between the parties, provided they are comparable and similarity is shown, which is not the factual scenario in the present group of appeals. 22. No convincing reason is assigned by the Reference Court as to why a common yardstick and formula is applied for compensation to all the categories of the land. 23. Apart from the fact that the lands covered by the sale instances at Exhibits 29 and 32 are of different character like that in respect of NA lands. They do not seem to be in the proximity of the lands acquired in the present case. Therefore, there is no dispute about the fact that the purpose, location, type, category, extent and what not. There is no similarity which would constitution a legally comparable evidence for determining just and reasonable amount of market value and resultant compensation as contemplated by the provisions of Section 23 of the LA Act. 24. The Reference Court has seriously committed error in placing reliance on the sale instances at Exhibits 29 and 32 for the reasons, which we have hastened to add hereinafter: (i) Exhibit - 29 is in respect of non-agricultural land and sale deed Exhibit - 29 is in respect of NA land and at the consideration of Rs.97 per sq. meter whereas the land covered under the sale deed is situated at the distance about 3 to 4 kms and again very important aspect is it is in respect of only small extent of 104 sq. meter. Exhibit 29 is dated 29.8.79. Therefore, it is prior to the date of the Notification under Section 4(1) which came to be gazetted on 2.10.1980. The vendor Ghalabhai of the land under sale deed - Exhibit 29 is examined as support witness No.1 at Exhibit 27. Therefore, reliance was placed by the claimants which came to be exhibited by the Reference Court. Similarly, the reliance came to be placed on the sale instance produced at Exhibit 32. The characteristics of the land covered under the Exhibit 32 sale deed must be noted, at this juncture. Of course, the vendee of the said parcel of plot or land Valjibhai Vasram was examined at Exhibit 30. Therefore, it is a legal evidence, which can be considered. But, the question which requires to be considered is as to whether at the relevant time, the parcel of land covered under the sale instance - Exhibit 32 could be said to be comparable. In this context, it may be noted that it is also a transaction in respect of a small parcel of land, admeasuring not more than 125 sq. meters. It is in respect of non-agricultural land. Of course, the amount of consideration in such sale instances was Rs. 65 per sq. meter. Again, an important thing, which requires to be noticed seriously is the distance of the said land from the acquired land. It is borne out succinctly from the record of the present case that the distance between the two is 4 to 5 kms. The Reference Court while examining the aforesaid sale instances, has made observations in the judgment, particularly, in para 19. We have gone through the entire impugned common judgment. 25. After having examined the aforesaid aspects and factual scenario emerging from the record of the present case and after having heard the learned advocates appearing for the parties, we have to raise our hands in helplessness and to plead our inability to accept the findings recorded by the Reference Court in fixing lumpsum amount of Rs. 20 per sq. yard ignoring the quality, type and nature of acquired lands, and in our opinion, the sale instances, which came to be led by the claimants and which came to be accepted by the Reference Court, is not proper, appropriate, and also illegal in the light of the celebrated principles of law which have been propounded, settled and explored by catena of judicial pronouncements and we would also refer the case laws hereinafter at appropriate stage. 26. It is very clear from Section 23 of the LA Act is very material for the simple reason that it prescribes the aspect, which need to be taken into consideration while fixing the amount of compensation to be awarded for the land acquired under the LA Act. It enumerates various matters to be considered in computing compensation. We, therefore, deem it necessary to have a close look into it. 23. Matters to be considered in determining compensation:- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into considers:- First, the market - value of the land at the date of the publication of the (notification under Section4, sub-section (1)]; secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the declaration under Section 6 and the time of the Collector's taking possession of the land. [(1-A) In addition to the market value of the land, as above provided, the Court shall in every award an amount calculated at the rate of twelve per centum per annum on such market-value for the period commencing on and from the date of the publication of the notification under Section-4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation:- In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order or any court shall be excluded.] (2) In addition to the market-value of the land, as above provided, the Court shall in every case award a sum of [thirty per centum] on such market-value, in consideration of the compulsory nature of the acquisition. 27. It can be very well seen from the aforesaid provisions of Section-23 that the determination of the market value of the land, the focus must be, on the date of the publication of the Notification under Section 4(1) of the Act. In other words, it is mandated that the market value of the land for the purpose of compensation has to be assessed at the date of the publication of the said Notification. The resultant damages on account of the acquisition of the land in one or other way suffered by the claimants are also required to be considered in computing the compensation in view of the provisions of Section 23. Section-23 enumerates the principles of compensation, whereas Section-24 of the LA Act prescribes the factors and the aspects which should not be taken into consideration and which should be neglected in determining the compensation. When the compulsory acquisition of land is directed or obtained, it is statutorily provided that the certain matters should be neglected in determining the compensation. It would, therefore, be material to have a glance at the statutory provisions of such aspects incorporated in Section 24 of the Act which reads as under: 24. Matters to be neglected in determining compensation.- But the Court shall not take into consideration -- first the degree of urgency which has led to the acquisition; secondly, any disinclination of the person interested to part with the land acquired; thirdly, any damage sustained by him which, if caused by a private person, would not render such person liable to a suit; fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under Section 6, by or in consequence of the use to which it will be