)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 4093 of 1998 to FIRST APPEALNo 4117 of 1998 with CROSS OBJECTIONS NO. 83 OF 1998 TO 107 OF 1998 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. -------------------------------------------------------------- GUJARAT HOUSING BOARD Versus JIVABHAI MADHABHAI CHAUDHARI -------------------------------------------------------------- Appearance: MRS KETTY A MEHTA for Petitioner Mr. A.J. Patel with Mr. Ghanshyam H. Amin and Saurabh H.Amin for the claimants. Mr.P.G. Desai, GP, for the State in First Appeals Nos.4096, 4094, 4095, 4097, 4098, 4106, 4107, 4108 of 1998 Mr.M.C. Jani, AGP, for the State in First Appeals Nos.4103, 4109 to 4117 of 1998 Mr.M.R. Raval, AGP, for the State in First Appeals Nos.4093, 4099, 4100, 4101, 4102, 4104, 4105, 4110, 4114 of 1998. -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.H.KADRI Date of decision: 24/02/99 COMMON ORAL JUDGMENT : (Per: Panchal. J.) 1. By means of filing these appeals under Section 54 of the Land Acquisition Act, 1894, read with Section 96 of the Code of Civil Procedure, 1908, the acquiring body i.e. Gujarat Housing Board, through its Executive Engineer, Ahmedabad, has challenged legality and propriety of the common judgment and award dated March 21, 1998, rendered by the learned Second Extra Assistant Judge, Ahmedabad (Rural), Mirzapur, in Land Acquisition Cases nos. 180 of 1992 to 204 of 1992. All the land reference cases were consolidated with Land Acquisition Case No.181 of 1992 which was treated as the main case and the parties had led common evidence therein. The lands which are subject matter of the present appeals were placed under acquisition pursuant to publication of notification on January 4, 1990, which was issued under Section 4(1) of the Land Acquisition Act, 1894. As common questions of fact and law are involved in the appeals and the cross objections filed therein, we propose to dispose of them by this common judgment. 2. The Executive Engineer, Housing Division No.3, Gujarat Housing Board, Ahmedabad, had, by his letter dated September 25, 1989, proposed to acquire agricultural lands of village Oganaj, Taluka Dascroi, District Ahmedabad,for the purpose of a scheme of residence which was floated by the Gujarat Housing Board. On scrutiny of the said proposal, the State Government was satisfied that the agricultural lands of village Oganaj were likely to be needed for the said purpose. Accordingly, notification under Section 4(1) of the Land Acquisition Act, 1894 ('Act' for short) was issued, which was published in the Government Gazette on January 4, 1990. Therein, the agricultural lands proposed to be acquired were specified. The land owners were served with notices under Section 4 of the Act and they had filed their objections against the proposed acquisition. After considering their objections, the Special Land Acquisition Officer had forwarded his report under Section 5A(2) of the Act to the State Government. On consideration of the said report, the State Government was satisfied that the lands of Oganaj which were specified in notification published under Section 4(1) of the Act, were needed for the purpose of scheme of residence which was floated by the Gujarat Housing Board. Therefore, declaration under Section 6 of the Act was made which was published in official gazette on March 11, 1991. Interested persons were, thereafter, served with notices under Section 9 of the Act for determination of compensation. Though notices were duly served upon the interested persons, they had not remained present before the Special Land Acquisition Officer. Having regard to the materials placed before him, the Special Land Acquisition Officer by his award dated December 10, 1991 offered compensation to the claimants at the rate of Rs.57 per sq.mtr. The claimants were of the opinion that offer of compensation made by the Special Land Acquisition Officer was inadequate. Therefore, they submitted applications in writing requiring the Special Land Acquisition Officer to refer the matter to the Court for the purpose of determination of compensation. Accordingly, reference were made to the Ahmedabad District Court (Rural), Mirzapur, Ahmedabad, which were numbered as Land Acquisition Cases Nos. 180 of 1992 to 204 of 1992. In the reference applications, the claimants mentioned that their agricultural lands which were acquired were highly fertile and as they were taking two to three crops in a year they were entitled to higher compensation. It was claimed that village Oganaj has got all the facilities such as electricity, water, etc and having regard to potentiality of the lands for building purposes they were entitled to compensation at the rate of Rs.350/- per sq.mtr. The Special Land Acquisition Officer, Gujarat Housing Board, Ahmedabad, contested the reference applications by filing common written statement Exh.13 whereas the present appellant, i.e. Gujarat housing Board, Ahmedabad, contested reference applications by filing common written statement Exh.14. In the replies, it was averred that in view of the situation of the lands acquired as well as prevailing market value of the lands situated nearby, compensation determined and offered by the Special Land Acquisition Officer was just and, therefore, the reference application should be dismissed. It was stated therein that village Oganaj was not fully developed and as most of the lands acquired were fallow lands, the claimants were not entitled to higher compensation. What was claimed in the reply was that the provisions of Urban Land (Ceiling & Regulation) Act, 1976 were applicable to the acquired lands and as the lands acquired had no building potentiality at all, the reference applications should be dismissed. It was also mentioned in the reply that over-head electricity line was passing through most of the acquired lands as well as ONGC had also laid underground pipelines and, therefore, the claimants were not entitled to higher compensation. Upon rival assertions made by the parties, necessary issues for determination were raised by the Reference Court. In order to substantiate the claim advanced in the reference applications, the claimants examined (1) Jivabhai Madhabhai Chaudhari, Exh.81, (2) Bhikhubhai R. Rami, who was Civil Engineer and Government Approved Valuer, and who had prepared his valuation report, Exh.81/A, (3) Dashratbhai S. Patel, Exh.83, and (4) Rameshbhai Sakabhai Patel, Exh.84. On behalf of Executive Engineer, Housing Division No.III, Gujarat Housing Board, Ahmedabad, witness Priyavadan Natwarlal Parikh was examined at Exh.147. Witness Jivanbhai Madhabhai Chaudhari, in his deposition, narrated survey numbers regarding which reference were sought by him as owners as well as power of attorney holders of other owners. The witness stated before the Court that the lands of village Oganaj were even and fertile and the irrigation facility was also available because of canal. The witness claimed that his acquired lands were abutting on Oganaj-Gota road. The witness stated that to east of his acquired lands, there was residential colony known as "Mahatma Gandhi Vasahat" which was built by the Gujarat Slum Clearance Board, and there were about 3000 flats in the said colony. The witness mentioned in his deposition that about 10,000 people were residing in that colony and the colony had facilities of shopping center, school, dispensary, tar roads, telephone, water works, temple, derasar, etc. The witness further stated in his evidence that the acquired lands were placed in the residential zone by the Ahmedabad Urban Development Authority and the municipal bus service run by the Corporation was available upto village Oganaj. The witness stated that to the south of the acquired lands, there was Gota-Oganaj road and just adjoining road, there was farm house belonging to one Bhavna Construction and just near the said farm house, there was another farm house belonging to one Mr.C.K. Patel. It was claimed by the said witness that near those two farm houses, there was a petrol pump and by the side of the petrol pump, there was Hide & Ride Hotel which was adjoining Umiya Mata Campus. The witness claimed that just adjoining Umiya Mata Campus, Bhagwat Vidyapith is situated and adjoining to the said Vidyapith, Sola Civil Hospital is situated and immediately thereafter, there is a building in which Gujarat High Court is established. The witness asserted in his deposition that the High Court building was at a distance of 1/2 to 3/4 kms. from his acquired lands. The witness further claimed in his deposition that to the north of his acquired lands, there was Bhangda Club which was at a distance of two fields and behind Bhangra Club, there was a scheme of farm houses floated by one N.G. Patel who had divided his lands into several plots and each plot was being sold at the rate of Rs.600/- per sq.mtr at the time of publication of notification under Section 4(1) of the Act. The witness stated that just adjoining the farm houses of Mr. N.G. Patel, there was Sterling Club and Green Wood Club, wherein also, farm houses were developed in an area admeasuring 1000 bigha. According to the witness, to the east of the acquired lands, there was sim of village Gota wherein 150 show rooms of granite and marbles were established as well as there were other shops also. The witness claimed that Gota was being considered as biggest centre in Gujarat for marble and granite business. The witness informed the Court that just near the marble shops, there was Silver Oak Club and thereafter there were several factories and shops etc. The witness claimed that, between his acquired lands and sim of village Oganaj, there were about eight to ten housing societies. The witness told the court that in village Oganaj, facilities of telephone, shopping center, school, cooperative societies, etc. were available. The witness stated before the court that for the purpose of valuing the acquired lands, the claimants had approached Mr. B.R. Rami who was Government Approved Valuer and as per the report of the valuer, the market value of the acquired lands was Rs.310 per sq.mtr. The witness further produced the consent award rendered in Land Acquisition Case No.19 of 1994 in relation to the lands which were acquired for Gujarat High Court building at Exh.82 which indicated that the claimants therein were paid compensation at the rate of Rs.251/- per sq.mtr. The witness stressed that the acquired lands were fully developed and the lands were being sold at the rate of Rs.1000 to Rs.1200 per sq.mtr in the year 1998. The witness also stated in his deposition that Slum Clearance Board had plotted the lands which were auctioned. According to this witness, the trustees of Shubh Mangalam Swetamber Moorti Pujak Jain Trust had applied for allotment of land in the year 1988 and the Slum Clearance Board had allotted a piece of land to the said Trust at the rate of Rs.156 per sq.mtr. which was 50% of the market value, as it was being allotted to a trust. The order by which the said Trust was allotted the land was produced by the witness at Exh.76. The witness also produced document Exh.77 by which lands belonging to one Bhikhiben were permitted to be converted from new tenure lands to old tenure lands by the competent authority and the market value assessed by the State Government was at Rs.480 per sq.mtr. The witness further produced another document at Exh.78 which indicated that Nishaben Chaudhary was allotted Survey No.271 of village Sola by the State Government at the rate of Rs.400/- per sq.mtr. The witness claimed that distance between the acquired lands and the land allotted to Nishaben Chaudhary was about 1 k.m. This witness also produced certified copy of sale index at Exh.79 which indicated that Madhabhai Hirabhai of village Sola had sold his land at the rate of Rs.239 per sq.mtr. The witness stated that the land sold by Madhabhai Hirabhai was at a distance of about 1 km. from the acquired lands and both the lands were similar and having same potentiality. The witness also produced another document atExh.80 which showed that Mohanbhai Khembhai Patel of village Jagatpur had sold Survey No.73 belonging to him to Hastinapur Cooperative Housing Society at the rate of Rs.1160/- per sq.mtr and according to the witness the land sold by Mohanbhai was at a distance of 1/2 km. from the acquired lands. In respect of the land belonging to Mohanbhai also, the witness claimed that both the lands were similar and having the same potentiality. According to the witness, determination of compensation by the Special Land Acquisition Officer was inadequate and he claimed that the claimants were entitled to compensation at the rate of Rs.350/- per sq.mtr. During his cross examination, the witness admitted that the acquired lands were purchased by him in the year 1982-83 at the rate of Rs.60/- per sq.mtrs. We may state that, though the witness had shown willingness to produce sale deeds on record, those sale deeds were not produced during the course of hearing of the reference applications. The witness admitted that the acquired lands were in agricultural zone and as the lands were acquired by the Gujarat Housing board, the same were placed in the residential zone. The witness stated in his cross examination that, as the acquired lands were placed in the residential zone, provisions of Urban Land (Ceiling and Regulation) Act, 1976 were applicable. In cross examination of this witness, it came out that the total measurement of the acquired lands was about 2 to 2.1/2 lakhs sq.yards. The witness also stated that, in the revenue record, it was not mentioned as to which crop was being raised on which land. The witness admitted that the ONGC had laid pipelines which were passing through the acquired lands. He also admitted that high-tension electric line was also passing through some of the acquired lands. The witness stated that in the year 1985, he had shown his willingness to sell land at the rate of Rs.85/- per sq.yard. The witness denied the suggestion that he had sold his lands to one Jitendra Dalal at the rate of Rs.12.77 ps per sq.mtr. Witness Bhikhubhai R. Rami informed the Court that he was Government Approved Valuer and had experience of about 18 years in valuing the properties. He stated before the Court that valuation report would normally be prepared having regard to sale instances of nearby lands, potentiality of land to be valued, etc. He produced valuation report prepared by him at Exh.82. He claimed that he had personally visited the acquired lands of village Oganaj and had assessed the value of the acquired lands at Rs.310 per sq.mtr. as on March 31, 1990, which was the date on which notification issued under Section 4(1) of the Act was published. The witness deposed before the Court that before valuing the acquired lands, he had taken into consideration sale deeds of nearby lands as well as other relevant documents including the consent award rendered in respect of the lands which were acquired for the High Court building wherein the rate of lands indicated was Rs.251 per sq.mtr. The witness stated before the Court that, over and above the compensation which was paid to the claimants at the rate of Rs.251 per sq.mtr. in case of acquisition of lands for High Court building, the claimants were also paid incentive at the rate of 35%. During his cross examination, this witness denied suggestion made on behalf of the acquiring body that there was no development in village Oganaj in the year 1990-91 or that no society was situated near the lands acquired. This witness also stated in his deposition that the acquired lands were at a distance of 1/2 k.m from Gandhinagar-Sarkhej Highway. Witness Dashratbhai S. Patel, who was examined at Exh.73, stated in his deposition that Survey No.464 was sold by him to Naranbhai Shamalbhai and Ratibhai by deed dated March 28, 1987 for a consideration of Rs.1,31,600.00 and the land sold was agricultural land. He produced certified copy of sale index relating to the said sale at Exh.62 which indicated that he had sold his land at the rate of Rs.239 per sq.mtr. In his cross examination, this witness stated that survey No.464 which was sold by him had well in it and the land was even. He also admitted in his evidence that survey No.464 was situated near Sola village and was abutting on Sola-Vadaj main road. Witness Rameshbhai S. Patel, Exh.84, was Sarpanch of village Oganaj. This witness also claimed in his deposition that Gota Chokdi was most developed place on Ahmedabad-Gandhinagar highway. According to this witness, the lands which were acquired for the High Court building were waste lands and lands acquired for the High Court building belonged to Jayantibhai Naranbhai, Kanubhai Naranbhai and Lalbhai Naranbhai. The witness in his cross examination admitted that distance between Gota Chokdi and Sola Chokdi was about 3 kms. The witness Priyavadan Natwarlal Parikh who was examined on behalf of the Executive Engineer, Housing Division No.3, Ahmedabad, stated in his deposition that, when the proceedings were initiated to acquire the lands in question, at that time, there were buildings constructed by the Slum Clearance Board and there was only one club, namely, Bhangda Club. According to this witness, there were no societies between the acquired lands and Sola cross roads. The witness informed the Court that the building of Gujarat High Court was on south at a distance of about 2.1/2 to 3 kms. According to this witness, no development had taken place near the acquired lands, and most of the development had taken place on south of the acquired lands. This witness stated before the court that the acquired lands were in agricultural zone and the lands could not have been put to any other use except that of agricultural. The witness admitted in his evidence that in the residential colony constructed by the Slum Clearance Board, there are facilities like tar road, gutter, street light, water, etc and the Slum Clearance Board had given a plot admeasuring 100 sq.mtrs to Shubh Mangalam Swetamber Moorti Pujak Jain Trust at basic rate. This witness in his evidence produced certified copy of sale indexes at Exh.86 to 140 to establish that the claimants were not entitled to higher compensation. In his cross examination, the witness stated that the ONGC had laid pipeline only in Survey No.74 of village Gota and in no other land. What was admitted by him was that the Gujarat housing Board normally acquire that land to which facilities like electricity, water, municipal bus service, approach road, etc. are available. This witness also stated in his cross examination that in the residential colony known as "Mahatma Gandhi Vasahat" all essential facilities were available and the acquired lands were adjoining the said colony. The witness further informed the Court that, normally, the Gujarat Housing Board proposes to construct buildings at such a place where there is immediate demand for the same. 3. On appreciation of evidence led by the parties, the Reference Court held that the lands of villages Sola, Gota, and Oganaj are situated adjoining each other and the documents produced on behalf of the claimants as well as acquiring body established that the acquired lands were situated nearby Gandhinagar-Sarkhej Highway and were touching Oganaj-Gota road. The Reference Court concluded that, as neither vendor nor vendee nor scribe of any sale deed was examined, the sale indexes produced on behalf of the acquiring body were neither relevant nor comparable for the purpose of determining the market value of the acquired lands. The Reference Court held that previous award rendered in Land Acquisition Case No.1020 of 1986 which was produced at Exh.154 by the Special Land Acquisition Officer, Gujarat Housing Board, Ahmedabad, was not relevant, as, in that case, notification under Section 4(1) of the Act was published in the year 1982 and the land in respect of which the said award was rendered was situated far away from the acquired lands and the land was touching Sarkhej-Gandhinagar Highway. According to the Reference Court valuation report prepared by Mr.Rami who was Government Approved Valuer, was relevant, which indicated that market value of the acquired lands at the relevant time was Rs.310/- per sq.mtr. The Reference Court further deduced that the sale instance produced by the claimants at Exh.79 was also relevant for the purpose of determining the market value of the acquired lands and the said document indicated that the land was sold at the rate of Rs.239 per sq.mtr in May 1987. The Reference Court also placed reliance on deposition of witness Dashratbhai S. Patel for the purpose of relying on the deed which was produced at Exh.79. According to the Reference Court, consent award made in respect of the lands acquired for the new High Court building was also relevant for the purpose of determining the market value of the acquired lands. The Reference Court took into consideration overall development which had taken place near the acquired lands and held that the acquired lands had potentiality of being used for building purpose. In the ultimate decision, the Reference Court held that the claimants were entitled to compensation at the rate of Rs.240/- per sq.mtr by the impugned award giving rise to the present appeals and the cross objections. We may state that the Reference Court has also given direction in the operative portion of the order to deduct 5% government share in case of new tenure lands. 4. Mrs. K.A. Mehta, learned counsel for the appellant submitted that, the previous award rendered in Land Acquisition Case No.1020 of 1986 delivered by the learned Second Joint District Judge, Ahmedabad (Rural),Mirzapur, and produced at Exh.154, as well as letter written by the ONGC to Gujarat Housing Board which was produced at Exh.145 and copy of map of AUDA showing the situation of the acquired lands which was produced at Exh.146 ought to have been relied on by the Reference Court and the Court should not have awarded compensation to the claimants more than Rs.57/- per sq.mtr. The learned counsel for the appellant stressed that copy of the letter of the Gujarat Slum Clearance Board along with its annexures produced at Exh.148 as well as certified copies of indexes of sale deeds of comparable lands produced at Exh.86 to 91 and Exh.93 to 140 as well as copy of village form No.7/12 produced at Exh.92 to 93, would indicate that the claimants were not entitled to higher compensation than what was awarded by the Special Land Acquisition officer and, therefore, the reference applications ought to have been dismissed by the Reference Court. It was highlighted by the learned counsel for the appellant that the lands in question were not developed lands at all nor facilities like business, school, post-office were available and as the lands were in agricultural zone for number of years and were converted into residential zone at the instance of the Gujarat Housing board, the claimants should not have been awarded compensation at the rate of Rs.240/- per sq.mtr. According to the learned counsel, the Reference Court failed to consider the important question that the lands in question were in Urban Agglomeration of Ahmedabd City and were covered by the provisions of Urban Land (Ceiling & Regulation) Act,1976, and, therefore, the claimants could not have sold the lands and would not be able to get market value of the lands admeasuring more than 1000 sq.mtrs which was the ceiling limit and, therefore, the market value should not have been assessed by the Reference Court at the rate of Rs.240/- per sq.mtr. It was asserted on behalf of the appellant that no cogent evidence was led by the claimants to establish rise in price of the lands nor it was established that there was any development on Sarkhej-Gandhinagar Highway and, therefore,