FA/381820/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3818 of 2008 With FIRST APPEAL No. 3819 of 2008 To FIRST APPEAL No. 3822 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SPECIAL LAND ACQUISITION OFFICER (TOWN PLANNING) & 2 - Appellant(s) Versus VALI ADAM ASMAL BHAIJI - Defendant(s) ========================================================= Appearance : Mr. Sumit Shah, GP with Mr. Niraj Soni AGP for appellant Special Land Acquisition Officer (Town Planning)Unit No. 13, Bharuch. MR MM SAIYED for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 03/12/2008 ORAL JUDGMENT 1. Heard learned GP Mr. Sunit Shah with learned AGP FA/381820/2008 2/9 JUDGMENT Mr. Niraj Soni on behalf of appellant Special Land Acquisition Officer (Town Planning) Unit No.13, Bharuch and learned Advocate Mr. MM Saiyad for respondents claimants. 2. On 1st September, 2008, this group of appeals was admitted by this court while observing that the issue is squarely covered by the decision of First Appeal No. 3684/2007 and 3696/2007. 3. In this group of appeals, appellant has challenged award passed by Reference Court – Additional District Judge, FTC No. 4, Bharuch in Land Reference No. 2075/98 to 2080/98 dated 8th May, 2006 vide Exh. 23. Details of land belonging to respondents claimants which have been acquired are as under: Village/Block No. Village Bhersam, Taluka Vagra, District Bharuch Block No. 163, 162, 153, 156, 157, 169A,169B, 113 Purpose Bhersam Minor Canal Date of Sec. 4 notification 30.11.1999 Date of sec. 6 notificaiton 8.8.96 LAC No 32/96 Date of LAQ Award 31.12.1996 Amount awarded by LAQ Officer Rs.182/- per Are [Rs.18.20 per sq. mtr. Basis on which LAQ Officer awarded the amount Five years sale deed LRC No. 2075/98 to 2080/98 Date of Reference Court's award 8.5.2000 Amount claimed Rs.7500/- per Are [Rs.75/- per sq. mtr.] FA/381820/2008 3/9 JUDGMENT Village/Block No. Village Bhersam, Taluka Vagra, District Bharuch Block No. 163, 162, 153, 156, 157, 169A,169B, 113 Amount awarded by Reference Court Rs.37.50 ps. Basis on which reference Court awarded the amount Reliance is placed on amount awarded by Reference Court in LRC No. 2408/97 of village Vorasamni – Awarded Rs.32/- per sq. mtr. - Land acquired in the year 1996. 4. Learned AGP Mr. Soni submitted that the reference Court has wrongly awarded Rs.37.50 ps. Learned AGP Mr. Soni also submitted that the reference court ought to have considered adjoining village land which is neither claimant based or pleaded nor reference court has considered and, therefore, reference court has committed gross error in ignoring land of village Vorasamni and, therefore, award made by reference court is liable to be quashed and set aside. 5. On the other hand, learned Advocate Mr. Saiyad has submitted that the submission of learned AGP Mr. Soni is not correct because reference court has rightly examined matter by applying yield basis for arriving at market price of the land in question and relying upon paragraph 18 of award, submitted that reference court has considered map of Vagra Taluka and observed that the distance between village Bhersam and Vorasamni is only 2-3 km and lands of village Vora Samni were acquired in the year 1992 whereas lands of village Bhersam were acquired FA/381820/2008 4/9 JUDGMENT in the year 1995 and market price of the lands of village Vora Samni were fixed at Rs.32/- and considering all these aspects, reference court has fixed Rs.37.50 ps. And, therefore, accordingly claimants are entitled for Rs.37.50 as in other identical cases, court has earlier considered market price of Rs.37.50. 6. Considering submissions made by both learned advocates and also considering entire award made by reference court, more particularly para 18 of award and also considering decision relied upon by this court while admitting appeals, namely decision in First Appeal No. 3684/2007 and 3696/2007 given on 30.7.2007, it is clear that this question was examined by this court in detail and ultimately, this court has come to conclusion as under in para 5,6,7 of said decision as under: “5. After going through the oral as well as documentary evidence on record, the learned Judge held that the amount of compensation given by the Land Acquisition Officer is inadequate. As regards valuation of the land regarding the adjoining land, the learned Judge has held that as far as village Vora Sam and other villages are 3 k.m. Away from the present land in question and therefore, those judgments are not helpful or relevant in this behalf. The learned Judge has also held that the land of village Bhersam is a fertile land, however, as regards the valuation of land of other village is concerned, the said village is not nearby the land in question which is FA/381820/2008 5/9 JUDGMENT acquired and therefore, the said judgment will not be applicable in the present case. The learned Judge relying upon the report of the Valuer, ultimately awarded the amount of Rs.37.50 per sq.mtr. The learned Judge also granted solatium and interest as per the provisions of the Act. 6. I have heard learned AGP for the appellants and Mr.Y.N.Ravani, learned advocate for the original claimants in each appeal, at length and in great detail. This Court has also considered the paper book supplied by the learned counsels for the claimants, which includes oral as well as documentary evidence adduced by the parties before the Reference Court. This Court has gone through the judgment of Hon'ble Apex Court in the case of Special Land Acquisition, Davangere v. P.Veerabhadarappa, etc. etc., reported in AIR 1984 SC 774 (see para 7 on page 777), where the Hon'ble Apex Court has laid down that the function of the Court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under Section 4(1) and the methods of valuation may be: (1) opinion of experts; (2) the prices paid within a reasonable time in bona fide transaction of purchase or sale of the lands acquired or of the lands adjacent to those acquired and possessing similar advantages; and (3) a number of years' purchase of the actual or immediately prospective profits of the lands acquired. What is emphasised in the said decision is that normally, the method of capitalising the actual or immediately prospective profits or the rent of a number of years' purchase should not be resorted to if FA/381820/2008 6/9 JUDGMENT there is evidence of comparable sales or other evidence for computation of the market value. For the guidance of courts in the country, it is laid down that yield method can be resorted to only when no other method is available. Applying the principles laid down in the above quoted decision to the facts of the present case, this Court finds that the Reference Court was not justified in determining the market value of the lands acquired on yield basis more particularly when the evidence in the form of previous award of the Reference Court relating to the lands of village Vagra was available on record. The previous award of the Reference Court relating to the lands of village Vagra is produced by the claimants indicates that the lands of village Vagra were acquired for public purpose of ONGC project pursuant to publication of notification issued under Sec.4 of the Act in the official gazette at the relevant time. Therein, the Special Land Acquisition Officer had awarded compensation to the claimants at the rate of Rs.7/- per sq.mtr. Feeling aggrieved, the claimants had sought references and accordingly, the references were made to the District Court, Bharuch where they were numbered as L.A.R. Nos.1282 of 1990 to 1291 of 1990. In those cases, witness Musabhai Umarji Patel was examined at Exh.96 whereas another witness Hanumanbhai Ishwarbhai Patel was examined at Exh.103 and witness Omprakash Dahyabhai Pandya was examined at Exh.109. Further, the claimants had also examined Raisang Babubhai Makwana at Exh.119 and witness Ramanbhai Punajbai Vankar was examined at Exh.125. On behalf of the FA/381820/2008 7/9 JUDGMENT Acquiring authorities, witness Parsottambhai Haribhai Chotaliya was examined at Exh.135. On appreciation of the evidence adduced by the parties, the Reference Court by judgment and award dated 10th Jan.2002 awarded additional amount of compensation to the claimants at the rate of Rs.31/- per sq.mtr. Thus, those claimants were awarded compensation at the rate of Rs.38/- per sq.mtr. 7. As observed earlier, it was asserted by witness claimant Hitendrabhai Patel that the lands of Village Vagra and the lands acquired in the instant cases were situated near each other. It was also claimed by him that the lands acquired from Village Vagra were similar in all respects to the lands acquired in the instant case. This assertion was neither challenged by the Acquiring Authorities nor proved to be untrue. Under the circumstances, this Court is of the opinion that the previous award of the Reference Court relating to the lands of Village Vagra would furnish good guidance for the purpose of determining the market value of the lands acquired in the instant cases from Village Saran. It is well settled that the previous award of the Reference Court relating to the lands of a village, which has attained finality, can be taken into consideration as a good guidance for the purpose of determining the market value of similar lands acquired subsequently from the adjoining village. The record further shows that the previous award of the Reference Court relating to the lands of Village Vagra, which was rendered in Land Reference Case Nos.1282 to 1291 of 1990, was subjected to challenge in First Appeal Nos.1942 to FA/381820/2008 8/9 JUDGMENT 1951 of 2003 and cognate matters and that the High Court by judgment (Coram: J.M.Panchal, J. (as he was then) & Abhilasha Kumari, J.) in the matters of Dy.General Manager vs. Heirs of deceased Ratanbhai Karsanbhai decided on 19.6.2006 upheld the same. The fact that the previous award of the Reference Court relating to the lands of Village Vagra has attained finality cannot be disputed by the learned counsel for the appellants. Therefore, the claimants were justified in placing reliance upon the same for the purpose of claiming enhanced compensation. There is a general consensus between the learned counsels for the parties that on the basis of the previous award relating to the lands of Village Vagra, as confirmed by the High Court, the claimants would be entitled to compensation, in all, at the rate of Rs.40.23/- per square metre. Thus, this Court does not find any merits in the appeals and, therefore, the appeals are liable to be dismissed.” 7. Considering the observations made by this court in first appeal as referred to above in para 5.6 and 7, according to my opinion, claims tribunal has rightly examined matter while arriving at market price considering earlier award passed by reference court and confirmed by this court, therefore, no error has been committed by reference court in awarding market price Rs.37.50 ps. to respondents claimants being additional amount over and above amount awarded by land acquisition officer, therefore, contentions raised by learned AGP Mr. Soni cannot be accepted and same are, therefore, FA/381820/2008 9/9 JUDGMENT rejected. Claimants are entitled for market price Rs.37.50 over and above amount awarded by Land Acquisition Officer, therefore, all appeals are dismissed. Registry of this Court is directed to draw decree immediately. (H.K. Rathod,J.) Vyas