FA/1941/1997 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1941 of 1997 To FIRST APPEAL No. 1955 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 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 ? ========================================================= SURAJBEN WD/O BHIKHABHAI MADHAVBHAI & 2 - Appellant(s) Versus SPECIAL LAND ACQUISITION OFFICER & 2 - Defendant(s) ========================================================= Appearance : MR PR THAKKAR for Appellant(s) : 1 - 3. None for Defendant(s) : 1 – 3. MR SUNIT SHAH, LD. GP FOR STATE IN FA NOS.1941 TO 1945 OF 1997 AND MR SATYAM CHHAYA, AGP FOR STATE IN FA NOS.1946 TO 1955 OF 1997 ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 09/04/2007 ORAL JUDGMENT 1. All the first appeals arise from the judgement FA/1941/1997 2/15 JUDGMENT and award passed by the Reference Court dated 10.6.1996 in Land Reference Case No.280 of 1988 to 289 of 1988, whereby the reference cases have been dismissed. 2. Heard the learned Counsel appearing for the appellants, Mr.Thakkar and Mr.Sunit Shah, learned G.P. with Mr.Satyam Chhaya, learned AGP for the respondent State. 3. The learned Counsel appearing for both the sides are on agreement on the point that the facts of the present appeals are the same as they were considered by this Court in the proceedings of First Appeals No.1986 of 1997 to 1999 of 1997 decided on 3.4.2007. The learned Counsel appearing for both the sides also confirm the position that the land is situated in the same Village Abhol as which was the case in the aforesaid group of First Appeals. The notification under Section 4 was also published on the same date and the claims were also the same. FA/1941/1997 3/15 JUDGMENT 4. It may be recorded that this Court in the said decision for the land at Village Abhol in respect of whom the notification under Section 4 of the Act was published on 8.9.1983, observed as under:- 7. If the evidence is considered, as was produced by the claimants in the proceeding before the Reference Court, it appears that as per the claimants, it was sufficient for establishing that the yield, if considered with the capitalisation method, the market value could be about Rs.6/- per sq. mtr. for non-irrigated land and for irrigated land, in any case, 25% rise in the market value deserves to be given as per the view taken by the Division Bench in the above decision. Therefore, it would be roughly about Rs. 7.50 Ps. per sq. mtr. It does appear from the record that the document at Exh. 25, which is a Certificate of Padra Taluka Khedut Cooperative Cotton Ginning Society Ltd., is pertaining to the period of 1981- FA/1941/1997 4/15 JUDGMENT 1982 and 1984-1985 and not of the year 1996 as only considered by the Reference Court in the said decision. Even on the aspects of average cultivation, it is shown as that of about 22 to 25 quintal as per the Certificate issued by the Assistant Director of Agriculture dated 11.03.1996. It is true that the said Certificate was of the year 1996. However, on the basis of the average cultivation figure of 1996, the Reference Court could have considered the approximate cultivation during the period of 1983 for the purpose of arriving at the approximate yield of the land in question. If the conservative figure is considered of 20 quintal of cotton of Rs.600/- per quintal as against the conservative price of cotton of Rs.600/- per quintal and if the expenses are considered of Rs.6,000/- per hectare, the Reference Court could have decided the matter on the basis of the capitalised value of the land, in the event the other evidence of sale instances or other reliable evidence FA/1941/1997 5/15 JUDGMENT for assessing the market value of the land was not available. However, it appears to the Court that it may not be necessary for this Court to re-appreciate and conclude the question on the aspects of yield method in view of the declaration made on behalf of the claimant of restricting their claim at par with the view taken by the Division Bench in the above referred decision in case of the very village, subject to the reduction @ 10% per year. 8. On the aspects of valuation of the land under the acquisition, as assessed by the Reference Court and its confirmation thereof by the Division Bench to that extent, it appears that there is no dispute that the decision of the Division Bench in the proceedings of First Appeal No.1330 of 2003 was pertaining to similar land of the very village Abhol. The Notification under Section 4 of the Act in the case before the Division Bench was dated 25.01.1989 and it FA/1941/1997 6/15 JUDGMENT is also not in dispute that the Division Bench in the said decision found that Rs. 1300/- per Area (Rs.13/- per sq.mtr.) was the market value of the land in the year 1989 and 25% increase for irrigated land was given and therefore, the Division Bench found the market value for irrigated land @ Rs. 1625/- per Are (Rs. 16.25 ps per sq. mtr.). Therefore, it appears that as per the view taken by the Division Bench of this Court in the above referred decision for village Abhol for acquisition pursuant to the Notification under Section 4 of the Act dated 25.01.1989, Rs.13.00 per sq. mtr. was found as market value for non-irrigated land and Rs.16.25 per sq. mtr. was found as market value for irrigated land for village Abhol. 9. It is by now well settled that for arriving at the market value based on the sale instances or based on the price fixed and confirmed by the higher forum, 10% FA/1941/1997 7/15 JUDGMENT appreciation per year in the market value can be considered. In the same manner for the present case, the reduction in valuation can be considered @ 10% per year from the Notification dated 25.01.1989 to 08.09.1983. 10.Mr. Thakkar, learned counsel appearing for the claimant also conceded before the Court that if 10% reduction is considered as per the settled legal position, then the the claimants are agreeable with the prices fixed by the Division Bench of this Court in respect of the very village as per the above referred decision. 11.Even otherwise also, the principles of application of 10% appreciation can equally apply in the reverse direction for reduction, if the Court is to fix the market value of the land during the earlier period, subject to any other cogent and reliable evidence to the contrary. There is no other evidence on record and the reason FA/1941/1997 8/15 JUDGMENT being that the sale instances which were produced by the claimant before the Reference Court were only extract of the index and neither the purchaser nor the vendor were examined. Not only that, but the said sale instances upon which the reliance was placed before the Reference Court was pertaining to the land situated in different village and not the very village Abhol. 12.Under these circumstances, the reduction of 10% per year in the market value can be reasonably considered by this Court in the present case. If the period is counted between 25.01.1989 to 08.09.1983 in the reverse direction, roughly, there was a gap of 5½ years and therefore, the market value of the land deserves to be reduced than the market value fixed on 25.01.1989 by 55%, taking 10% ever year reduction in the reverse direction for the earlier period. Same principle can be applied for irrigated FA/1941/1997 9/15 JUDGMENT as well as non-irrigated land. 13.As a result thereof, if out of the amount of Rs.13/- per sq. mtr., reduction of 55% equivalent to Rs.7.15ps. per sq.mtr. is excluded, the net valuation would come to Rs.5.85Ps. per sq. mtr. for non-irrigated land. Similarly, if out of Rs.16.25Ps. per sq. mtr., 55% equivalent to Rs.8.93Ps. is excluded, the value would come to Rs.7.32Ps. per sq. mtr. on the date when the notification under Section 4 was published on 08.09.1983. Therefore, it appears that the market value of the non-irrigated land was Rs.5.85Ps. per sq.mtr. and Rs.7.32Ps. per sq.mtr. and the rounded figure would be Rs.7.30Ps. per sq. mtr. for irrigated land. As against the said market value of the non- irrigated and irrigated land, the Land Acquisition Officer has assessed the value of the land at the rate of Rs.0.85Ps. per sq. mtr. for non-irrigated land. If the amount already paid as per the Award of the FA/1941/1997 10/15 JUDGMENT Land Acquisition Officer is excluded based on the aforesaid market value, it appears that the appellant would be entitled to the compensation @ Rs.5/- per sq. mtr. for the non-irrigated land and Rs.6/- per sq. mtr. for irrigated land. 14.It may be that while hearing the First Appeal, if the Reference Court has not properly considered certain material or documents on record, and if this Court finds it necessary, it may exercise the judicial discretion for remanding the matter to the Reference Court. However, if the record can be re-appreciated and the decision can be rendered by the Appellate Court, normally, the exercise of the discretion for remand may not be required. Further, it is true that the development of the subsequent order of the Reference Court in respect to the land situated in the very village based on the notification of the year 1989, its confirmation thereof by this Court, are of FA/1941/1997 11/15 JUDGMENT later date, but they are pending the present First Appeals before this Court. It also appears that acquisition is of the year 1983, the references are of the year 1988, the decision of the Reference Court is of the year 1996, and the appeals are of the year 1997, and therefore, roughly about 19 years time has passed even after the Reference. Therefore, it would be just and proper not to exercise the discretion for remand of the matter, but to decide the appeal after re-appreciation of the evidence and the material available on record so as to put an end to the litigation by curtailing the delay. It may also be recorded that the learned Advocate appearing for both the sides have also contended that it may not be necessary for this Court to remand the matter and the Court may fix the valuation as it may find it proper, considering the facts and circumstances of the case. FA/1941/1997 12/15 JUDGMENT 15.In view of the above observations and discussions, it is hereby observed and directed that the appellant/orig. Claimant/land owner would be entitled to the additional compensation towards the market value of the land @ Rs.5/- per sq. mtr. for non-irrigated land and Rs.6/- per sq. mtr. for irrigated land. 16.On the aspects of solatium @ 30% is concerned, the law is settled by now and therefore, it is hereby observed and directed that the claimant/appellant/land owner would be entitled to the solatium @ 30% as per Section 23(2) of the Act and additional amount @ 12% p.a. under Section 23(1 A) on the basis of the aforesaid additional compensation @ Rs.5/- per sq.mtr. for non-irrigated land and Rs.6/- per sq. mtr. for irrigated land. 17.It is further observed and directed that the claimant shall also be entitled to the FA/1941/1997 13/15 JUDGMENT interest @ 9% for the first year and 15% for the subsequent years on the additional amount of compensation, including the solatium and the increase under Section 23(1A) of the Act from the date of taking over of the possession, until the amount is deposited and/or paid, whichever is earlier. 18.Appeals are partly allowed. There shall be cost in proportion to the additional amount ordered in the present appeals. Decree accordingly.” 5. Similar is the situation in the present case, except that the judgement in respect of the other matters which were considered in earlier group of First Appeals are not placed in the present proceedings. In my view, the above referred decision can be made as the basis for the purpose of awarding compensation and if the same yard-sticks are applied on the legal positions prevailing and as were considered by this Court in the above referred group, the FA/1941/1997 14/15 JUDGMENT present claimants would be entitled to the amount of compensation. 6. Hence, the following order:- (a) In view of the above observations and discussions, it is hereby observed and directed that the appellant/orig. Claimant/land owner would be entitled to the additional compensation towards the market value of the land @ Rs.5/- per sq. mtr. for non-irrigated land and Rs.6/- per sq. mtr. for irrigated land. (b) On the aspects of solatium @ 30% is concerned, the law is settled by now and therefore, it is hereby observed and directed that the claimant/appellant/land owner would be entitled to the solatium @ 30% as per Section 23(2) of the Act and additional amount @ 12% p.a. under Section 23(1 A) on the basis of the aforesaid additional compensation @ Rs.5/- per sq.mtr. for non-irrigated land and Rs.6/- per sq. mtr. for irrigated land. FA/1941/1997 15/15 JUDGMENT (c) It is further observed and directed that the claimant shall also be entitled to the interest @ 9% for the first year and 15% for the subsequent years on the additional amount of compensation, including the solatium and the increase under Section 23(1A) of the Act from the date of taking over of the possession, until the amount is deposited and/or paid, whichever is earlier. 7. Appeals are partly allowed. There shall be cost in proportion to the additional amount ordered in the present appeals. Decree accordingly. 9.4.2007 (Jayant Patel, J.) vinod