IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 1816 of 1998 with First Appeal No.1824 to 1827 of 1998; First Appeal No.1828 to 1836 of 1998; First Appeal No.1837 to 1845 of 1998 Cross with First Appeal No.5347 to 5355 of 1997 First Appeal No.5356 to 5364 of 1997 First Appeal No.5365 to 5369 of 1997 with Civil Applications Nos.11629 to 11651 of 1998 in First Appeals Nos. 5347 to 5369 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE M.H.KADRI ============================================================ 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? 1 to 5 : No -------------------------------------------------------------- KANTIBHAI ISHWARBHAI CHAMAR Versus SPEICAL LAND ACQUISITION OFFICER -------------------------------------------------------------- Appearance: FIRST APPEAL No 1816 of 1998 with First Appeal No.1824 to 1827 of 1998; First Appeal No.1828 to 1836 of 1998; First Appeal No.1837 to 1845 of 1998 Mr. A.J. Patel for the appellant-claimants Mr. U.A. Trivedi, AGP, for the State First Appeal No.5347 to 5355 of 1997 First Appeal No.5356 to 5364 of 1997 First Appeal No.5365 to 5369 of 1997 Mr. B.D. Desai, AGP, for the appellant-State Mr. A.J. Patel for the respondents Civil Applications Nos.11629 to 11651 of 1998 in First Appeals Nos. 5347 to 5369 of 1997 Mr.R.C. Jani for the applicants Mr. A.J. Patel for the claimants Mr.U.A. Trivedi & Mr. B.D. Desai, AGP, for respondent-State -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.H.KADRI Date of decision: 15/12/98 COMMON ORAL JUDGMENT : (Per: Kadri, J.) 1. First Appeals Nos. 5356 of 1997 to 5364 of 1997 with cross First Appeals Nos. 1837 of 1998 to First Appeals No.1845 of 1998 against the common judgment and award dated March 27, 1997 in Land Reference Cases Nos. 1338 of 1992 to 1346 of 1992, First Appeals Nos. 5365 of 1997 to 5369 of 1997 with cross First Appeals Nos. 1816 of 1998, 1824 to 1827 of 1998 against the common judgment and award dated July 2, 1997 in Land Reference Cases Nos. 1713 of 1992 to 1717 of 1992, whereas First Appeals Nos. 5347 of 1997 to First Appeals Nos.5355 of 1997 with cross First Appeals Nos. 1828 of 1998 to First Appeals Nos. 1836 of 1998 arise out of the common judgment and award dated July 2, 1997 in Land Reference Cases Nos. 1268 of 1992 to 1274 of 1992, 1287 of 1992 and Land Reference Case No. 1392 of 1994. The appeals are filed by the Land Acquisition Officer and the Acquiring Body, whereas and the cross Appeals are filed by the claimants under Section 54 of the Land Acquisition Act, 1894, ('Act' for short), read with Section 96 of the Code of Civil Procedure. The lands of the claimants situated in the village Piyaj, which are subject matter in First Appeals Nos.1837 of 1998 to First Appeals Nos. 1845 of 1998 and Cross First Appeals Nos.5356 of 19978 to First Appeals Nos. 5364 of 1997, came to be acquired for the public purpose, namely, main canal of Narmada Project, pursuant notification under Section 4(1) of the Act, published on August 27, 1990. After considering the objections of the persons interested, a report under Section 5(A)(2) of the Act was made and, thereafter, declaration under Section 6 of the Act was published on January 21, 1991. 2. The Land Acquisition Officer made award on January 30, 1992 and offered compensation for the acquired lands of the claimants at the rate of Rs.3.90 paise per sq.mtr. Before the Land Acquisition Officer, the claimants had claimed compensation for the acquired lands at the rate of Rs.50/per sq.mtr. The claimants, being dissatisfied with the award of the Land Acquisition Officer, filed application under Section 18 of the Act requiring the Land Acquisition Officer to refer the cases to the District Court. The said applications were referred by the Land Acquisition Officer to the District Court, Mehsana, which came to be numbered as Land Reference Cases Nos. 1338 of 1992 to 1346 of 1992. Before the Reference Court, the claimants claimed compensation at Rs.50 per sq.mtr for the acquired lands situated at village Piyaj. They contended that the acquired lands were irrigated and fertile and they used to raise three crops and earned net income of about Rs.15,000/- to Rs.17,000/- per bigha in a year. About the situation of village Piyaj, the claimants stated that village Piyaj is adjacent to village Borisana and village Pratappura. They claimed that the whole village was declared as industrial area, and many industrialists were trying to purchase lands of their village. In the application, they stated that village Pratappura was at a distance of 1.1/2 kms to 2 kms away and the boundaries of both the villages were touching each other. It was claimed that the lands of village Pratappura and the lands of village Piyaj were of same fertility. Opponents Nos. 1 and 2, being the Land Acquisition Officer and the Acquiring Body, filed their reply to the reference applications and contended that compensation awarded by the Land Acquisition Officer was adequate and the applications deserved to be dismissed. 3. Before the Reference Court, on behalf of the claimants, one Amrutbhai Mulabhai Parmar was examined at Exh.11. On behalf of the opponents, Deputy Mamlatdar, Mr. Ishwarlal Madhvlal Patel, was examined at Exh.50. Witness Amrutbhai Mulabhai who was one of the claimants, described the situation of village Piyaj. He stated that village Pratappura is at the distance of 1 to 1.1/2 kms from village Piyaj and boundaries of both the villages are touching each other. It is stated that the lands of village Pratappura were acquired by Oil & Natural Gas Commission in the year 1982. The claimants of the acquired lands of village Pratappura had sought references against the award of the Land Acquisition Officer in the District Court which were numbered as Land Reference Cases Nos. 62/86 to 64/86 wherein the District Court had determined the market price of the acquired lands of village Pratappura at the rate of Rs.20 per sq.mtr. The witness deposed that the acquired lands of village Pratappura and the lands of village Piyaj were having same fertility. He stated that Kalol town is at a distance of 4 kms and is connected by a pucca tar road. The witness was searchingly cross examined by the learned advocate for the opponent with regard to situation and fertility of the acquired lands but this part of his evidence has gone unchallenged in cross examination. The witness examined by the opponents, namely, Ishwarlal Madhavlal Patel (Exh.50). in his oral evidence, admitted that village Borisana was situated in the industrial area. He claimed that no industry was established in village Piyaj and all the lands were agricultural lands and compensation awarded by the Land Acquisition Officer was just and adequate. In cross examination, the witness admitted that the acquiring body has not obtained any report of experts with regard to nature and fertility of the acquired lands. 4. Before the Reference Court, neither the claimants nor the opponents produced any sale instance. The claimants had produced previous awards of the acquired lands of village Borisana and village Pratappura for the determination of the market value of the acquired lands of village Piyaj. The Reference Court, after taking into consideration the evidence relating to the income derived by the claimants from the acquired lands and after referring to the previous awards of the Reference Court with regard to the acquired lands of village Borisana and village Pratappura, placed reliance on the award Exh.43 in respect of the acquired lands of village Pratappura, and determined the market value of the acquired lands of village Piyaj at Rs.20/- per sqmtr. The lands of village Pratappura which were subject matter of award Exh.43 were acquired for the ONGC and notification under Section 4 of the Act was published on 25.11.1982. The Land Acquisition Officer had awarded compensation of the acquired lands of village Pratappura at the rate of Rs.2/- per sq.mtr. The claimants of the acquired lands of village Pratappura had filed Land Reference Cases Nos.62/86 to 64/86 in the District Court, Mehsana. The learned Extra Assistant Judge, Mehsana, by judgment and award dated July 27, 1993, had determined the market value of the acquired lands of village Pratappura at Rs.20 per sq.mtrs. Relying upon the said award, the learned 4th Extra Assistant Judge determined the market value of the acquired lands of village Piyaj Rs.20/- per sq.mtr in Land Acquisition Case No.1338/92 to 1346/92 , giving rise to filing of the present appeals. 5. First Appeals Nos.1816 of 1998, with First Appeals Nos. 1824 of 1998 to 1827 of 1998 are filed by the original claimants, whereas First Appeals Nos.5365 of 1997 to 5369 of 1997 are filed by the State of Gujarat and the Acquiring Body, challenging the common judgment and award passed by the learned 4th Extra Assistant Judge, Mehsana, dated July 2, 1997, in Land Reference Cases No. 1713 of 1992 to 1717 of 1992. The lands of the claimants situated at Piyaj village, Taluka Kalol, came to be acquired pursuant to publication of notification issued under Section 4(i) of the Act, on August 22, 1990 for the public purpose, namely, main canal of Narmada Project. After considering the objections of the persons interest, a report under Section 5(A)(2) of the Act was made and, thereafter, declaration under Section 6 of the Act was published on April 10, 1991. The Land Acquisition Officer made award on January 30, 1992 and offered compensation for the acquired land of the claimants at the rate of Rs.3.90 paise per sq.mtr. The claimants had claimed compensation at the rate of Rs.50/per sq.mtr. Therefore, the claimants, being dissatisfied with the award of the Land Acquisition Officer, filed applications under Section 18 of the Act requiring the Land Acquisition Officer to refer the cases to the District Court. The said applications were referred by the Land Acquisition Officer to the District Court, Mehsana, which came to be numbered as Land Reference Cases Nos. 1713 of 1992 to 1717 of 1992. Before the Reference Court, the claimants claimed compensation at Rs.50 per sq.mtr for the acquired lands situated at village Piyaj. Before the Reference Court, the claimant of Land Reference Case No.1716 of 1992 Sakraji Visaji Thakore was examined at Exh.11. He described the acquired lands as irrigated lands and having more fertility, out of which the agriculturists were taking three crops in a year and were earning Rs.15,000/ to Rs.17,000/- per bigha per year. With regard to the situation and locality of village Piyaj,, he stated that the village was having facility of electricity and was connected with other villages by pucca tar roads. He claimed that village Piyaj was included in the industrial area and Kalol town was situated at a distance of 4 k.m. It was stated that village Borisana was at a distance of 2 k.m. whereas village Pratappura was at a distance of 1.1/2 k.m. He claimed that village boundaries of villages Pratappura and Borisana and village Piyaj were touching each other and the lands of all the three villages were having similar fertility. During the oral evidence, he produced award Exh.43 of the acquired lands of village Pratappura. He also produced the award of Land Reference Cases Nos.1338 of 1982, 1346 of 1992, which are subject matter under challenge in First Appeals Nos. 1338 of 1998 to 1346 of 1998. Before the Reference Court, the award dated 27.3.1997 was mainly relied upon for the purpose of determination of compensation of the acquired lands of village Piyaj. The evidence of this witness with regard to fertility of the acquired lands and situation of the acquired lands of village Piyaj was not challenged by the opponents. On behalf of the opponents, namely, Acquiring Body and Land Acquisition Officer, the Deputy Mamlatdar, Shri Shankerbhai, was examined at Exh.48. According to this witness, the Land Acquisition Officer after taking into consideration the sale transaction which had taken place prior to five years of issuance of Section 4 notification had awarded Rs.3.90 per sq.mtr as compensation of the acquired land. He claimed that no industrial development had taken place at village Piyaj and the people of village Piyaj were mainly dependant on the agricultural income. In cross examination, the witness admitted that village Piyaj was situated at distance of 5 km. from Kalol town. The witness even though was serving as Deputy Mamlatdar showed his ignorance that the boundaries of villages of Pratappura, Borisana and Piyaj were touching each other. 6. In this group of the Land Reference Cases also, the claimants mainly relied upon the previous award of the Reference Court of the acquired lands of village Pratappura and Borisana and award pased in Land Reference Cases Nos.1338 of 1992 to 1346 of 1992 relating to acquired lands of village Piyaj to which reference is already made in the earlier part of the judgment. The Reference Court, after taking into consideration the previous award of the Reference Court relating to acquired lands of village Pratappura Exh.43 and award in Land Reference Cases Nos. 1338 to 1346 of 1992 determined the market value of the acquired lands of village Piyaj at Rs.20 per sq.mtr, giving rise to filing of these appeals by the claimants, the State of Gujarat and the Acquiring Body. 7. First Appeals Nos.1828 of 1998 to 1836 of 1998 are filed by the original claimants, whereas First Appeals Nos.5347 of 1997 to 5355 of 1997 are filed by the State of Gujarat and the Acquiring Body, challenging the common judgment and award passed by the learned 4th Extra Assistant Judge, Mehsana, dated July 2, 1997, in Land Reference Cases No. 1268/92 to 1274/91, 1287/92 and 1392/94. The lands of the claimants situated at village Piyaj, Taluka Kalol, came to be acquired pursuant to notification issued under Section 4 of the Act, which was published on May 24, 1990, for the public purpose, namely, main canal of Narmada Project. After considering the objections of the persons interest, a report under Section 5(A)(2) of the Act was made and, thereafter, declaration under Section 6 of the Act was published on November 7, 1990. The Land Acquisition Officer made award on January 31, 1991 and awarded compensation for the acquired lands of the claimants at the rate of Rs.3.90 paise per sq.mtr. The claimants had claimed compensation at the rate of Rs.50/per sq.mtr. Therefore, the claimants, being dissatisfied with the award of the Land Acquisition Officer, filed applications under Section 18 of the Act requiring the Land Acquisition Officer to refer the cases to the District Court. The said applications were referred by the Land Acquisition Officer to the District Court, Mehsana, which came to be numbered as Land Reference Cases Nos. 1268/92 to 1274/91, 1287/92 and 1392/94. Before the Reference Court, the claimants claimed compensation at Rs.50 per sq.mtr for the acquired lands situated at village Piyaj. Before the Reference Court, the claimant of the Land Acquisition Case no.1274 of 1992, namely, Jivaji Chelaji Thakore, was examined at Exh.12. It was stated by the witness that the acquired lands were irrigated and fertile lands and they used to take crops three times in a year. He emphatically stated that he used to get net income out of the agricultural crop at Rs.15,000/- to Rs.17,000/- per bigha per year. With regard to the facilities prevailing at the village, he stated that the village was having electricity facility and was connected by tar roads to all villages and was included in the industrial area. He claimed that the taluka town of Kalol was situated at a distance of 4 k.m. from village Piyaj, and village Piyaj is situated at a distance of 3 k.m. from the National Highway. He also stated that the boundaries of villages Pratappura, Borisana and Piyaj were touching each other and the lands of three villages were having the same fertility. During the oral evidence, he produced the earlier awards of acquired lands of village Borisana and Pratappura and claimed that the acquired lands which were subject matter of those awards were having the same fertility as compared to the acquired lands of village Piyaj. He also produced earlier award of the Reference Court dated March 2, 1997 passed in Land Reference Cases Nos. 1338/92 to 1346/92 which are subject matter of First Appeals Nos. 1837 to 1845 of 1998. During cross examination, no material was brought out so as to dislodge the testimony of this witness. On behalf of the acquiring body, the Deputy Mamlatdar, who was working under the Special Land Acquisition Officer, Narmada Project-18, Bhagwanbhai Shankerbhai, was examined at Exh.42. He stated that the Land Acquisition Officer had made his award on the basis of the sale transactions which had taken place prior to five years of the date of issuance of Section 4 notification and had rightly determined the market price of the acquired lands at Rs.3.90 per sq.mtr. In cross examination, he stated that he was not aware whether the acquired lands of village Piyaj were situated at a distance of 5 k.ms from town Kalol. 8. In this group of references also, the claimants mainly relied upon the previous awards of the Reference Court, relating to the acquired lands of village Borisana and Pratappura, and the award of the District Court, Mehsana, of the same village Piyaj rendered in Land Acquisition Case No.1338 of 1992 to 1346 of 1982. The Reference Court, after relying upon the award Exh.43 of acquired lands of village Pratappura and the earlier award in Land Refernece Case Nos. 1338 to 1346 of 1992 of village Piyaj, determined the market value of the acquired lands of village Piyaj at Rs.20/- per sq.mtr, which has given rise to filing of these appeals by the State of Gujarat and Acquiring Body and the claimants. 9. Civil Applications Nos. 11629 of 1998 to 11651 of 1998 have been filed by the Acquiring Body, namely, Executive Engineer, Construction Division, Narmada Canal, Ahmedabad, for production of additional evidence, which were ordered to be heard with main matters and therefore they are also being disposed of by this judgment. 10. As common questions of law and facts are involved in these three groups of First Appeals, by consent of the learned advocates in these appeals we propose to dispose of the same by this common judgment. 11. Learned counsel for the claimants, Mr. A.J. Patel, has submitted that the Reference Court was not justified in not awarding adequate compensation of the acquired lands to the claimants. He, further, submitted that, as per the previous award Exh.43 in respect of the lands of village Pratappura which were acquired in the year 1982, the Reference Court had awarded compensation at Rs.20/- per sq.mtr and if appropriate increase in price of lands had been considered, the claimants would have been entitled to compensation at the rate of Rs.40/per sq.mtr. In this connection, it is submitted by the learned counsel for the claimants that the claimants have, therefore, restricted their claims in these appeals at the rate of Rs.40/- per q.mtr. for the acquired lands. The learned counsel for the claimants has submitted that the Division Bench of this High Court (Coram: Y.B. Bhatt & C.K. Buch, JJ.), in the group of First Appeals Nos.2523, 2524, 2526, 2528, 2529, 2531 to 2534 of 1997, decided on April 23, 1998, has determined the market price of the acquired lands of village Borisana at the rate of Rs.70/per sq.mtr, but as the claimants of these First Appeals had restricted their claim to Rs.50/-, the High Court has awarded Rs.50/- per sq.mtr to the claimants as compensation for the acquired lands of village Borisana. He submitted that the notification under Section 4(1) of the Act in the above First Appeals was published in the Government Gazette on September 7, 1989, and the lands of village Borisana were acquired for the public purpose, i.e. Kalol-Medaadaraj Road. The learned counsel, therefore, stressed that the judgment of the Division Bench of this High Court (Coram: Y.B. Bhatt & C.K. Buch, JJ.), in the group of First Appeals Nos.2523, 2524, 2526, 2528, 2529, 2531 to 2534 of 1997, provides 'good guidance' for determining the market value of the lands of village Piyaj as the village Borisana and the village Piyaj are situated adjoining each other and notifications under Section 4(1) of the act were also issued in near proximity of time. He has further stressed that the lands of village Borisana and village Piyaj are having same fertility and distance between village Piyaj and village Borisana is of 2 to 3 kms. The learned counsel for the claimants, therefore, submitted that the compensation awarded by the Reference Court is inadequate looking to the previous award of the Reference Court and the judgment of the High Court and, hence, the market value of the acquired lands should be determined at Rs.40/- per sq.mtr and the appeals of the claimants may be allowed and the State appeals may be dismissed. 12. The learned Assistant Government Pleaders, Mr. U.A. Trivedi and Mr. B.D. Desai, on the other hand, submitted that the Reference Court erred in placing reliance on the previous award Exh.43 in determining the market price of the acquired lands of village Piyaj. It is submitted by the learned counsels for the Government that the lands of village Pratappura and village Piyaj were not of similar fertility and village Pratappura was nearer to Kalol town and, therefore, the Reference Court ought not to have placed reliance on the earlier award Exh.43 for determining the market price of the acquired lands of village Piyaj. It is further stressed by the learned counsel for the Government that no industrial development had taken place in the surrounding areas of village Piyaj and the acquired lands were agricultural lands and, therefore, the Reference Court ought to have determined the market price of the acquired lands as agricultural lands and it should not have taken into consideration the potentiality of the lands. The learned counsel for the Government stressed that the compensation awarded by the Land Acquisition Officer was just and adequate as he had taken into consideration all the materials placed on record while determining market price of the acquired land of village Piyaj at Rs.3.90 paise per sq.mtr. The learned counsel for the Government further stressed that the claimants had failed to lead cogent and reliable evidence before the Reference Court and, therefore, the Reference Court erred in enhancing the amount of compensation to Rs.20 per sq.mtr. The learned counsel for the Government submitted that the market value determined by the Reference Court of the acquired lands was highly excessive and, therefore, the appeals filed by the State Governmentmay be allowed and the appeals filed by the claimants for enhancing compensation may be dismissed. 13. It is settled legal principle that previous judgments and awards of the Reference Court, if they relate to similarly situated adjacent lands and which has become final provide good guidance in determining the market value of the land acquired subsequently. There is no doubt that, a judgment of a court in a land acquisition case determining the market value of a land in the vicinity of the acquired lands even though not inter partes, could be admitted in evidence either as an instance or one from which the market value of the acquired land could be deduced or inferred. For a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, it must have been a previous judgment of court and as an