FA/442919/1996 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4429 of 1996 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 ? ========================================================= LAND ACQUISITION OFFICER - Appellant(s) Versus PATEL PARTHIBHAI LAXMANBHAI & 7 - Defendant(s) ========================================================= Appearance : Mr. Neeraj Soni, AGP for Appellant(s) : 1, MR TUSHAR MEHTA for Defendant(s) : 1 - 7. MR VIPUL S MODI for Defendant(s) : 1 - 2,4 - 8. - for Defendant(s) : 8, None for Defendant(s) : 8.2.1, 8.2.2, 8.2.3, 8.2.5, 8.2.6,8.2.7 ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 11/12/2008 ORAL JUDGMENT 1. Heard learned AGP Mr. Neeraj Soni for appellant Land Acquisitioln Officer, Palanpur, District Banaskantha and learned Advocate Mr. Shah for FA/442919/1996 2/10 JUDGMENT learned Advocate Mr. Tushar Mehta and learned Advocate Mr. Vipul Modi for respective respondents. 2. Through this appeal, appellant has challenged judgment given by the Reference Court in LR Case NO. 6 of 1984 Exh. 43 dated 31st July, 1995 wherein the Reference Court has partly allowed reference and it has been held that the applicants are entitled to receive the compensation at the rate of Rs.5.00 per square meter for the acquired land ad measuring 1 H- 63 Are-83 sq. mtrs. deducting received amount of award Rs.8463.50 ps. with running interest at 12 per cent per annum from date of publication of sec.4 notification 14.5.81 till the date of award and for the subsequent years, claimants shall be entitled to realize the interest over the afore mentioned accumulated amount at the rate of 15 per cent per annum till recovery. It has also been held that the applicants shall be entitled to solatium amount at the rate of 30 per cent over the principal land price of the acquired land and shall also be entitled to costs. 3. Learned AGP Mr. Niraj Soni for appellant submitted that the lands were acquired for the purpose of Chitrasani Check Dam situated in Taluka Palanpur, District Banaskantha and notification under section 4 of the Land Acquisition Act was published in the Government Gazette on 6th January, 1982 and thereafter, FA/442919/1996 3/10 JUDGMENT section 6 notification was published in the Gazette on 1st December, 1983. After taking into consideration various factors, Land Acquisition Officer has passed award on 17th February, 1984 awarding Rs.3.00 per square meter and thereafter, reference has been made and reference court has by award dated 31st July, 1995, enhanced amount from Rs.3.00 to Rs.5.00 per square meter. Learned AGP Mr. Soni submitted that the Reference Court has not assigned reason for increasing this amount from Rs.3.00 to Rs.5.00 per square meter. As per his submission, Reference Court has wrongly interpreted judgment in case of Land Acquisition Officer, Elurn etc. vs. Smt. Jasti Rohini and Anr., 1995 (2) SC 339 and decision of apex court in case of State of Haryana vs. Gurcharan Singh and etc., 1995(2) SC 345 without properly appreciating ratio laid down by apex court in those decisions. He submitted that the Reference Court has also committed an error in awarding solatium amount at the rate of 30 per cent over the principal amount of land price of acquired land. He submitted that the reference court has also committed an error in awarding interest at the rate of 12 per cent per annum from the date of notification under section 4 of the Land Acquisition Act till the date of award and thereafter 15 per cent till the date of recovery. He referred to the discussion made by the reference court in para 8 of award and FA/442919/1996 4/10 JUDGMENT submitted that it ought to have been appreciated by reference court that fertility of the acquired land was not so much as exaggerated on oath since the soil was sandy and it was not possible to take precious crop or cash crop. He further submitted that the reference court ought to have appreciated that looking to the other sale transactions of adjacent land, amount asked for by way of reasonable amount of compensation is much higher and hence it ought to have been appreciated. He also submitted that the reference court has also committed gross error in not appreciating challenge of the appellant as regards validity of the amount. He submitted that the appellant had examined Mr. Halani on oath at Exh. 28 before the reference court who was the then Deputy Collector Palanpur specially appointed as Land Acquisition Officer who has also challenged veracity of the version of the applicant's side contending inter alia that the amount of compensation claimed by applicants side is not reasonable but exaggerated one and therefore, he should not be awarded. He also submitted that the reference court has also committed an error in not appreciating submission made before it by appellant that on account of construction of said dam, applicant's side held more water than they had in the past and further that conservation of humidity in sub soil has increased and on account of that, applicants have started taking peddy crop which FA/442919/1996 5/10 JUDGMENT was not possible in past and hence this surplus land is remaining useless and turned unproductive is not true and, therefore, that version of applicant side to that effect is not based upon reality of facts and, therefore, their claim is not genuine and hence they are not entitled to claim asked for. He referred to para 13 of award and submitted that in said para, reference court has, after going through relevant revenue record of 7/12 relating to acquired land S. No. 200 in possession of present applicant Parthibhai, it was observed that there is no any clear cogent evidence on the form of documents to suggest cultivation of acquired land through out the year and in light of those facts relating to high productivity rate of the crops being grown in the acquired land on applicants side are not hold truth and consequently, the assessment and consideration recorded by Land Acquisition Officer at the time of passing award that the acquired land is of the nature of Jirayat land without facility of irrigation and corroborated in the oral testimony on oath at Exh. 28 stands to reason and, therefore, in light of such observation made by reference court in para 13, reference court has committed error in passing award. In support of his submissions, learned AGP Mr. Soni has placed reliance on the decision in case of KANWAR SINGH AND OTHERS Versus UNION OF INDIA (1998) 8 SCC 136 and submitted that in the said FA/442919/1996 6/10 JUDGMENT decision, it was held that though bona fide sale transactions showing price paid on or near date of S. 4 notification for similar land with similar advantages well recognized, however, unless proved otherwise, situation and potentiality of land situated in two different villages would be different. He relied upon the Head Note A and B as under: “A. Land Acquisition and Requisition – Land Acquisition Act, 1894 – S. 23 – Market value of land – Comparable sale or award method – Relevance of price fetched in adjoining villages – Held, though bona fide sale transactions showing price paid on or near date of S. 4 notification for similar land with similar advantages well recognized, however, unless proved otherwise, situation and potentiality of land situated in two different villages would be different. Held, on facts, High Court finding unassailable that the situation and potentiality of land in the adjoining villages were higher compensation was paid, was different. B. Land Acquisition and Requisition – Land Acquisition Act – S. 23 – Market value – Comparable sale or award method – Final judgments in respect of comparable sales cannot be relied upon if they had been pursued on wrong point of law or inactively or disinterestedly pursued owing to negligence or connivance.” 4. I have considered submissions made by learned AGP Mr. Soni. I have also considered aforesaid decision of apex court relied upon by learned AGP Mr. Soni. I have also perused impugned award made by reference court. Reference Court has considered evidence of Land Acquisition Officer Exh. 28 and record of village form as well as panchanama Exh. 39 and sale transaction Exh. 40 and also considered that no irrigation facility FA/442919/1996 7/10 JUDGMENT is available to claimants' land and most of the acquired land was uneven land adjacent to Government waste land and there was no irrigation facility available. In para 21 of award, reference court has given reasoning for increasing Rs.3.00 to Rs.5.00 which is quoted as under: “21. So far as land price is concerned, the applicant side have claimed Rs.57400/- per hectare which is not considered by the Land Acquisition Officer looking to the market rates prevalent of such agricultural land. Amount of Rs.5000.00 per hectare fixed by the Land Acquisition Officer still considering case appears to be inadequate amount of compensation and therefore reasonable amount of sale of such agricultural land at the time of issuance of notification under sec. 4 of the Land Acquisition Act, i.e. Notification was published on 14.5.81, which is relevant rate for consideration of quantum of acquired land. Since there is no any specific clear and cogent evidence available, , the reasonably amount of compensaiton fixed at Rs.5.00 per sq. yard i.e. Rs.500.00 per are are appreciating all the factors affecting case of the applicants' side in tobe and in lesser amount of compensation would adversely afect to the applicants legal rights and hence the above price is held to be reasonable market price on the date of issuance of preliminary notification u/s.4 of the LA Act i. e. 14.5.81 and the applicants side entitled to that amount compensation from the opponents side, which is not paid to them and hence, the claim of the applicants side is held genuine and they are held entitled to surplus amount of compensation along with 30 per cent amount solacium and interest rate from the date of taking possession or issuance of the preliminary notification as the case may be and consequently, rest of the claim advanced by the applicants' side appears to be exaggerated one FA/442919/1996 8/10 JUDGMENT and it is held unreasonable and without reasonable proof of such claim and hence the applicants side is held not entitled to the amount towards the future loss of land to be kept vacant for want of economic holding which is claimed to the tune of Rs.80000.00 corresponding amount of compensation towards the loss of trees is claim Rs.10,000.00 and in the memo of reference amount is stated to be Rs.5050.00 in that regard, so far as genuine amount of compensation of the standing trees are concerned, they are already decided making observation by this court and, therefore, the applicants side who is awarded reasonably and fair amount price of the agricultural land by the Government, they are not entitled to claim any amount towards fruits of standing trees to be available in future and, therefore, the applicant side is held entitled to only the market price of the land at the rate of Rs.5.00 per sq. mt., and therefore, rest of the claims of the applicants is held exaggerated one to which the applicant side is not entitled to and consequently issue no.1 and 2 are held in affirmative in view of the above terms of findings of this Court, and hence, following order is passed.” 5. Reference Court has considered preliminary notification under sec. 4 of the Act dated 14.5.81 and held that the applicant side is entitled to that amount of compensation from opponent side which is not paid to them and, therefore, held that claim of applicant is genuine and they are entitled to surplus amount of compensation along with 30 per cent amount of solatium and interest rate from the date of taking over possession on issuance of preliminary notification as the case may be and consequently est of the claim was held to be exaggerated and unreasonable by reference court FA/442919/1996 9/10 JUDGMENT and, therefore, it was held that claimants are not entitled for the same as considered above.Therefore it was claimants were held entitled to only the market price of the land at the rate of Rs.5.00 per sq. mt., and therefore, rest of the claims of the applicants is held exaggerated one to which the applicant side is not entitled to and consequently issue no.1 and 2 were answered accordingly by reference court. Reference Court has held that claimants are not entitled to the amount towards the future loss of land to be kept vacant for want of economic holding which is claimed to the tune of Rs.80000.00 corresponding amount of compensation towards the loss of trees is claim Rs.10,000.00 and in the memo of reference amount is stated to be Rs.5050.00 in that regard. Reference Court has also held that so far as genuine amount of compensation of the standing trees are concerned, they are already decided making observation by this court and, therefore, the applicants side who is awarded reasonably and fair amount price of the agricultural land by the Government, they are not entitled to claim any amount towards fruits of standing trees to be available in future. However, considering entire discussion, reference court has come to the conclusion that some reasonable increase must have to be given to the claimant , instead of Rs.3/-, Rs.5.00 must have to be given to claimant and according to my opinion, reference FA/442919/1996 10/10 JUDGMENT court has rightly examined matter and there is no much enhancement granted by reference court. It is merely an enhancement of Rs.2.00 per square meter given by reference court and reference court has not granted relief as prayed for by claimants and, therefore, according to my opinion, contention raised by learned AGP Mr. Soni cannot be accepted and hence same are rejected. According to my opinion, view taken by reference court cannot be considered to be unreasonable or arbitrary, therefore, there is no substance in this appeal and therefore,same is hereby dismissed with no order as to costs. (H.K. Rathod,J.) Vyas