FA/1666/1988 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1666 of 1988 To FIRST APPEAL No. 1670 of 1988 With CIVIL APPLICATION (Stamp) No.10350 of 2008 In FIRST APPEAL No.1699 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 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 ? ====================================== VITHALBHAI KHEMABHAI PATEL AND OTHERS Versus STATE OF GUJARAT ====================================== Appearance : MR NK MAJMUDAR for Appellants. MS TRUSHA PATEL, AGP for Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 27/08/2008 ORAL JUDGMENT FA/1666/1988 2/9 JUDGMENT 1. In these appeals, the appellants have challenged judgment and order of Joint District Judge, Panchmahals at Godhra dated 20-1-1988 passed in Land Acquisition Reference No.7 of 1983 and prayed for enhancement of awarded amount which was granted by the trial Court. 2. The facts in brief, as emerging from record, are as under: 3. State of Gujarat intended to erect a dam over Machhan river in Jhalod taluka of Panchmahals district and for that purpose lands were proposed to be acquired, which included lands of village Nansalali, Sapoi Tandi. Notification under Section 4 of the Land Acquisition Act for said purpose was published in Government Gazette on 18-6-1974, while Notification under Section 6 of the Act was issued on 9-2-1977, which was published in Government Gazette on 3-3-1977. Notices under Section 9 of the Act were issued to the claimants and after following due process of law, Special Land Acquisition Officer awarded Rs.120/- per Are for Jirayat land and Re.1/- was granted for certain pieces of lands treating them as waste lands. Since the claimants were aggrieved by it, Special Land Acquisition Officer has preferred reference under Section 18 of the Land Acquisition Act before learned 2nd Joint District Judge, Panchmahals at Godhra. 4. The State appeared in all reference cases and filed written statements at various exhibit numbers by raising common grounds. It is FA/1666/1988 3/9 JUDGMENT averred in written statement that Special Land Acquisition Officer has passed consent award and, therefore, reference cases are not maintainable. It is also averred that award passed by Special Land Acquisition Officer is just and proper, which is based on the evidence produced by claimants, therefore, the same is not required to be interfered with. 5. After considering the evidence on record, reference Court allowed said reference cases and directed the opponent to deposit additional amount of compensation with 9% interest from the date of taking possession till payment. Being aggrieved by said order, the appellants- claimants have preferred this appeal to enhance the amount of compensation. 6. Heard Mr.N.K.Majmudar, learned advocate for the appellants and learned AGP for the respondent. 7. Learned advocate, Mr.Majmudar appearing for the appellants submitted that considering the sale instances, situation of the place etc., reference Court was required to award full amount in favour of the claimants. He also submitted that learned Judge has not appreciated sale instances properly and committed an error by not relying upon said sale instances. He, therefore, submitted that the order impugned herein is required to be modified by awarding full amount as claimed by the FA/1666/1988 4/9 JUDGMENT claimants. 8. On the other hand, learned AGP has supported the judgment of the reference Court. She has submitted that the amount granted by the reference Court is just and proper. She submitted that while passing impugned award, reference Court has considered all relevant documents and evidence on record and, therefore, the award impugned herein is not required to be interfered with by this Honourable Court. 9. I have considered the submissions made on behalf of the parties and also gone through the judgment of the trial Court and other relevant documents. While granting amount of compensation, reference Court has observed in paragraphs 12 and 15 to 19 of its judgment as under: “12. The state did not acquire the land of sampoi village only, but it acquired several lands of other villages, by name Raniyar, Nansalai and other cluster of villages. Those lands were acquired for submergence of Machan nala Dam and all those lands being located at the same place are of the same variety. The claimants of Raniyar (Kanbi) village had got made references to this court and judgment was delivered by this court in land reference cases nos.7/92 to 9/82. The judgment is produced at exh.98. If we look that judgment the claimants in those cases had relied upon the sale-transaction covered by exh.35, and also covered by exh.36 and it was found that those sale-instances were not available for comparison to those claimants as in these cases also. After considering the several evidences, this court has fixed FA/1666/1988 5/9 JUDGMENT compensation at a rate of Rs.190/- per are for Kyari land, Rs.140/- per are for non-irrigated Jarayat land and Rs.100/- per are for waste land. There is no reason why the present claimants also can not get compensation as fixed in the Judgment exh.98. In absence of any comparable sale-instance this court can legitimately relied upon its previous judgment in which the compensation had already been fixed. The sale-instance relied upon by the claimants are much subsequent to the issuance of the notification under section-4 of the land Acquisition Act. It is quite possible that because of the acquisition and erection of the Dam, The vendors might have fetched a higher returns. As increased in the price of the lands by virtue of the development effected by the acquisition cannot be taken into consideration while fixing the market value. The Notification issued in respect of Ranivar village's land covered by the Judgment exh.98 was dated 21-8-1975 while the notification in this case is dated 31-12-1974. Thus, it is within the same period and, therefore, also the price fixed in the exh.98 is applicable to the lands involved in these cases also. 15. Each of the claimants would be entitled to compensation as fixed by this court by Judgment exh.98 i.e. to say Rs.190/- per are for Kyari land, Rs.140/- per are non-irrigated Jarayat land, and Rs.140/- per are non-irrigate Jarayat land, and Rs.100/- per are for waste land. The compensation awarded by the special Land Acquisition Officer in respect of Kyari and Jarayat land is found to be inadequate and the compensation of Rs.1/- per are fixed for waste land is truly less. In absence of evidence put forth by the claimants, the fixation of the price of the lands in previous references can be relied by this court in respect of the similar type of lands. villages Raniyar, Sampoi, and other villages are in near FA/1666/1988 6/9 JUDGMENT vicinity and the lands of those villages have been acquitted for the same purpose. Hence, I fixed the compensation accordingly so far as the lands are concerned. Since the area of the land is not in dispute, the claimants would be entitled to compensation as aforesaid. The claimants would also be entitled to compensation in the form of solatium at a rate of Rs.30/- of the compensation awarded, as per the amended provisions of the Land Acquisition Act. The Government is entitled to deduct 5% of the compensation awarded as its share in respect of the new tenure lands as shown in the schedule attached to this Judgment. 16. The claimants in claim petition no.7 of 1983 claim that there had been two wells in survey no.173 and 185. The wells were kaccha wells for which they claim compensation at rate of Rs.10000/- per each well. It may be noted that there is no reliable evidence land or produced by the claimants. The claimants have produced the valuation report of D.B.Dalal, Engineer and Registered valuer at exh.30. when Mahendralal cross examined, he had to admit that this valuation was given by D.B.Dalal on the date given by him as on 4-3-1986 during the pendency of these references. D.B.Dalal is not examined before this court and the valuation given by him on the present day prices can not be utilised for fixing the price of the well. Special Land Acquisition Officer did not allow the price of the well as he included the price in the price of the land itself. This method adopted by the Special Land Acquisition Officer has caused loss to the claimants. The claimants claim Rs.10000/- for kachha well and Rs.20000/- for pakka well. In absence of any evidence, the some price has to be fixed and in my view the kachha well should be priced at Rs.5000/- and the pakka well should be priced at Rs.10000/-. FA/1666/1988 7/9 JUDGMENT The claimants in land reference case no.7/83 therefore, would be entitled to Rs.10000/- for two kachha wells. 17. The claimants in claim petition no.11/83 had a kachha well in their lands and, therefore, they are also entitled to additional compensation of Rs.5000/- over and above the price of the lands. The claimants in claim petition no.13/83 Mahendralal Desai and others had one pakka well in survey no.143 and one kachha well in survey no.140/A. Those claimants would be entitled to Rs.10000/- for pakka well and Rs.5000/- for kachha well in addition to the price of the lands awarded to them. 18. The claimants in claim petition no.10/83 claimed compensation of Rs.5500/- each for their houses in their land, but as declared by them by a separate pursish that they had a ready received the compensation in respect of those houses and, therefore, their claim is not to be allowed. Similarly the claimants in claim petition no.11 of 1983 had their houses in their lands acquired by the State in which the compensation had already received Rs.8500/- in cash and since they did not claim any more compensation that the claim has not to be allowed in these petition. There is no evidence to show the nature of these houses and and hence, the compensation is found to be adequate. 19. The claimants in claim petition no.13 of 1983 Mahendralal Desai and others had three pakka houses in land survey no.140/A for which they claim compensation in the sum of Rs.45000/-. The claimant Mahendralal has produced an abstract from the register maintained by the Executive Engineer, Jhalod at exh.106. This abstract is not challenged or disputed by the state and is proved that pakka houses tile roofing and also covered with CGI tile FA/1666/1988 8/9 JUDGMENT roofing. Mahendralal Desai admitted in cross-examination that he was permitted to carry away the super-structure out of which he has prepared other houses. He gave to the court no data about the materials of the super-structure that he has taken away and left the court only to arbitrary assessment. When the respondent state admits the instance of the houses and when they do not pay the claim to the claimants, the claimants would be entitled to compensation in respect of damages suffered by them by any of loss of demobilizes, and the dis-construction of the materials at the time of shifting. Only roof tiles, tiles, doors and windows can be shifted and the other materials shall have to be left as destroyed. In my view, Mahendralal Desai has to be given 50% price of the houses which he has put at Rs.45000/-, even making allowances for shifting charges and reconstruction caused to Mahendralal Desai cannot get more than Rs.22500/- being 50% of price claimed by them. The state has examined no witnesses nor produced any record to show the nature of the houses and, therefore, the evidence given by of the houses and, therefore, the evidence given by Mahendralal has to be accepted. However, the price of the materials that he has taken away to be adjusted and therefore, claimant Mahendralal in claim petition no.13 of 1983 would be entitled to Rs.22500/- similarly, the claimant Dhirajlal in claim petition no.13 of 1983 had a kachha house in his land survey no.140/A. We presume that this claimant Dhirajlal Keshavlal and others also had utilised 50% of the materials from his kachha house as admitted by Mahendralal Desai and, therefore, these claimants are entitled to an additional compensation of Rs.10000/- being the 50% value of the kachha house.” FA/1666/1988 9/9 JUDGMENT 10. Accordingly, after considering the evidence on record, reference Court has passed the impugned award by awarding additional amount of compensation. In my view, the amount awarded by the reference Court is just and proper and the same is not required to be interfered with. I am in complete agreement with the reasonings given and finding arrived at by the reference Court while passing impugned order. No other evidence is shown to me to take a contrary view. In view of above discussion, these appeals are devoid of any merits and I do not find any reason to interfere with the impugned judgment. 11. For the reasons stated herein above, the appeals deserve to be dismissed and the same are dismissed with no order as to costs. Since the appellant of First Appeal No.1669 of 1988 has expired, learned advocate for the appellant has preferred Civil Application (Stamp) No.10350 of 2008 to bring heirs of deceased appellant on record. However, since the main appeal is already disposed of, Civil Application (Stamp) No.10350 of 2008 would not survive and the same is also disposed of. (K.S.Jhaveri, J.) *malek