Defence Estates Officer vs Shekhar Patwa

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2484 of 2015 With R/FIRST APPEAL NO. 3122 of 2014 With R/FIRST APPEAL NO. 3123 of 2014 With R/FIRST APPEAL NO. 3124 of 2014 With R/FIRST APPEAL NO. 3125 of 2014 With R/FIRST APPEAL NO. 3394 of 2014 With R/FIRST APPEAL NO. 3395 of 2014 With R/FIRST APPEAL NO. 1716 of 2015 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE V. B. MAYANI ========================================================== ========================================================== DEFENCE ESTATES OFFICER Versus SHEKHAR PATWA , CHAIRMAN ========================================================== Appearance:

MR DEVANG VYAS(2794) for the PETITIONER(s) No. 1 MR PY DIVYESHVAR(2482) for the PETITIONER(s) No. 1 MR GM AMIN(124) for the RESPONDENT(s) No. 1,2 MR SHIRISH GOHIL, ASSISTANT GOVERNMENT PLEADER for the Special Land Acquisition Officer ========================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE V. B. MAYANI Date : 25/02/2019 COMMON ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.M.CHHAYA)

1. All the appeals relate to the same land acquisition proceedings and the same award and therefore, all the appeals are heard together and are disposed of by this common judgment and order. First Appeal no.1716 of 2015 is preferred by one of the land owners and rest of the First Appeals have been preferred by the acquiring body – Union of India. All these appeals, under Section 54 of the Land Acquisition Act, 1894 read with Section 296 and Order XLIII of the Code of Civil Procedure, 1908, are directed against the common judgment and award rendered by the learned Principal Senior Civil Judge, Kalol in LAR Cases no.91 to 96 of 2013 and LAR Case no.64 of 2013, being the lead reference.

2. The facts, as narrated in First Appeal no.2484 of 2015, are taken as basis of this judgment and order. Various parcels of land situated at Villages Vadsar and Santej, Taluka Kalol, District Gandhinagar were acquired for the public purpose of Air Force Station and Army Requirement of Centre (National Defence purpose). The land acquisition procedure followed by the State can be enumerated as under:­

2.1 Record indicates that the Land Acquisition Officer determined the market value at Rs.30/­ per sq. mtr.

2.2 Record indicates that the land owners accepted the award under protest and thereafter, made a written application for Reference as provided under Section 18 to the Land Acquisition Officer and claimed Rs.3,000/­ per sq. mtr., which were referred to the Reference Court and the same came to be registered as Land Acquisition Reference case no.64 of 2013 before the learned Principal Senior Civil Judge at Kalol. The land owners relied upon the documentary evidence as under:­

2.3 The Union of India and the Special Land Acquisition Officer have produced the deposition of Bakulkumar Himmatlal Vaghela at Exh.25 and certified copy of the judgment rendered in Land Acquisition Reference no.21/1 dated 21.11.2013 passed by the learned Principal Senior Civil Judge & Additional Chief Judicial Magistrate Court, Kalol at Exh.25B.

2.4 Over and above the aforesaid documents, the original owners also examined one Pravinchandra at Exh.28 and Mahendrakumar at Exh.31. In addition to that, one Shekharbhai Patva, the appellant in First Appeal no.1716 of 2015 was examined. The acquiring body as well as the State Government filed a written statement at Exhs.7 and 8 respectively. The acquiring body also examined one Bakulkumar Himmatlal Vaghela at Exh.25 and Mr. Shreyas M. Patel, Defence Estate Officer. The acquiring body also adduced documentary evidence in form of village map of Vadsar at Exh.16 and Village Khatraj at Exh.17. The Reference Court, after appreciating the evidence adduced by the parties, considered the sale deed produced by the claimants relating to the land bearing survey no.573 of Village Vadsar dated 18.10.1997 and relying upon the judgment of the Hon'ble Apex Court in the case of Land Acquisition Officer and Mandal Revenue Officer Vs. Narasaiah, 2001 AIR SCW 867, considered that when the sale instance of the same village i.e. Vadsar is available, the same is a comparable instance and relied upon the same for determining the market price of the land under acquisition. The Reference Court, having come to such a conclusion, considered that the date of the sale deed at Exh.30 dated 20.10.1997 gave increase of 15% per year as there was gap of nearly one year and taking into consideration the overall evidence adduced by the claimants as well as the opponents, considered that both the lands are similar in nature and fixed the market price of the land under acquisition at Rs.520/­ per sq. mtr. and thus, awarded additional amount of Rs.490/­ per sq. mtr. and also granted other statutory benefits as provided under Section 23(i)(a) of the Act as well as the interest and solatium. Being aggrieved by the said judgment and award, the present appeals are filed.

3. Heard Mr. P.Y. Divyeshwar, learned Central Government Counsel for Defence Estate Officer (Union of India), Mr. G.M. Amin, learned advocate for the original claimants and Mr. Shirish H. Gohil, learned Assistant Government Pleader on behalf of the Special Land Acquisition Officer and also perused the paper book supplied by the learned advocate for the appellant and also perused the original record and proceedings.

4. Mr. P.Y. Divyeshwar, learned Central Government Counsel has contended as under:­

4.1 That, the Reference Court has erroneously come to the conclusion that the land owners­ original claimants are entitled to additional compensation of Rs.490/­ per sq. mtr. and has failed to appreciate and considered the documents produced by the Special Land Acquisition Officer and the award in question.

4.2 It was contended that the award passed by the Special Land Acquisition Officer is reasonable and such award is passed based on cogent reasons and the Land Acquisition Officer, after taking into consideration the most comparable instance including the development in surrounding area, the sale of statistics of past year fertility of land and other relevant factors and more so, the sale instance of last 5 years and has determined the market value at Rs.30/­ per sq. mtr. which is the correct market value. It was therefore submitted that the impugned award passed by the Reference Court is erroneous.

4.3 It was also contended that no such sale instances have been produced which can be made basis of the determination of the market value, has wrongly appreciated by the Reference Court, which deserves to be modified by this Court in these appeals.

4.4 It was also contended that the Reference Court has failed to consider that there is no industry or business in the village and the main occupation of the land owners being agriculture, the market value cannot be compared with the one sale instance which is wrongly considered as comparable sale instance and the Reference Court has therefore wrongly relied upon the sale document and has wrongly determined the market value at Rs.520/­ per sq. mtr. On the aforesaid grounds, it was therefore contended that the appeals filed by the acquiring body deserve to be allowed and the market value, as fixed by the Land Acquisition Officer, deserves to be confirmed.

5. Mr. Shirish H. Gohil, learned Assistant Government Pleader for the Special Land Acquisition Officer has adopted the arguments made by Mr. P.Y. Divyeshwar, learned Central Government Counsel for the appellant – acquiring body and has submitted that the appeals being meritless deserve to be dismissed.

6. Per contra Mr. G.M. Amin, learned advocate for the original claimants has contended as under:­

6.1 That, the appeals filed by the acquiring body deserve to be dismissed outright.

6.2 Mr. Amin further submitted that on the contrary, the Reference Court has failed to consider the other piece of evidence, more particularly, the sale deed of block no.218 at Exh.14 dated 29.3.1997 for Village Vadsar and so also the copy of the sale deed at Exh.17 dated 3.10.1997 for Village Khatraj and sale deed at Exh.15 dated 3.10.1997 for the land situated at Village Khatraj, wherein highest price is Rs.652/­.

6.3 Mr. Amin contended that Village Khatraj and Village Vadsar are adjoining to each other and therefore, the Reference Court ought to have considered the document at Exh.17 to be the comparable instance and should have at least determined the market value accordingly.

6.4 Mr. Amin further relied upon the document at Exh.8 dated 6.8.2005 which is an order of price determination Committee, wherein the price of the land of Village Santej was fixed at Rs.700/­ per sq. mtr. Relying upon the deposition of the expert – Pravinchandra Keshavlal Desai at Exh.20 and the report of the Government approved valuer, it was contended by Mr. Amin that according to the expert opinion, the price of the land under acquisition on the date of Section 4 notification would be Rs.800/­ per sq. mtr. to Rs.1,000/­ per sq. mtr. and therefore, the

grounds, it was contended that the appeals filed by the acquiring body deserve to be dismissed being meritless and First Appeal no.1716 of 2015 filed by the original claimants deserves to be allowed by modifying the impugned judgment and award and modifying the market value of the land acquired accordingly.

7. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.

8. Having considered the contentions raised and the submissions made by the learned advocates appearing for the respective parties and upon re­appreciation of the evidence on record, it clearly appears that the Reference Court has rightly adopted one of the recognized method for determining the true and correct market value. If the plethora of documentary evidence relied upon by both the sides is examined, the claimants have mainly relied upon the sale instance. The claimants, in addition to that, have also relied upon the expert opinion at Exh.9 and the deposition of the Government approved valuer – Mr. P.K. Desai at Exh.20. Upon considering the said piece of evidence, in our opinion, the Reference Court has committed no error in applying the method of considering the sale instances for determination of the market value for the lands under acquisition.

9. Even upon re­appreciation of the evidence led by the acquiring body as well as the State Government, copy of the judgment and award of the Reference Court rendered in Land Acquisition Reference case nos.91 to 96 of 2013 at oral evidence at Exh.25 as well as the oral deposition of the Special Land Acquisition Officer – Pushpaben A. Ninama and the oral deposition of the Defence Estate Officer – Mr. Bakulkumar Himmatlal Vaghela at Exh.25, in our opinion, the Reference Court has rightly taken into consideration the most comparable sale instance on record instead of relying upon the earlier award passed by the Reference Court, wherein Section 4 notification is dated 27.11.1998.

10. Upon considering the oral deposition of the claimant – Mr. Shekhar Patva who is appellant in First Appeal no.1716 of 2015 before this Court and also considering the map of Village Vadsar and Village Santej Exhs.16 and 17, both the Villages are closely located geographically. The Reference Court has relied upon the sale instances Exhs.23 to 27 dated 15.10.1997 and 20.10.1997 for determination of the market value. Upon re­appreciation of the evidence, it clearly transpires that the lands under acquisition have proximity of development even though vast chunk of area is under acquisition for Air Force Station and for National Defence Purposes, evidence does indicate that around Village Vadsar and Village Santej even industrial development has taken place. In view of the same therefore, the contention raised by Mr. P.Y. Divyeshwar, learned Central Government Counsel that there is no development or that there is no potential for developing, deserves to be negatived. From the sale deeds which are relied upon by the claimants, the sale deeds dated 15.10.1997 and 20.10.1997 at Exhs.23 to 27 which are made the basis of determination of the market value has been, in opinion of this Court, is rightly considered by the Reference Court as most comparable instance. The Reference Court has also taken into consideration the factor that predominantly the lands under acquisition are situated at Village Vadsar and therefore, has rightly adopted the sale instance as most comparable instance. At this juncture, it would be appropriate to refer to the judgment of the Hon'ble Apex Court in the case of Union of India v. Raj Kumar Baghal Singh, (2014) 10 SCC 422, wherein the Hon'ble Apex Court has observed in Paragraph 10 as under:­ “10. It is well settled in determining compensation for acquired land, price paid in a bona fide transaction of sale by a willing seller to a willing buyer is adopted subject to such transaction being adjacent to acquired land, proximate to the date of acquisition and possessing similar advantages. Of course, there are other well known methods of valuation like opinion of experts and yield method. In absence of any evidence of a similar transaction, it is permissible to take into account transaction of nearest land around the date of notification under Section 4 of the Act by making a suitable allowance. There can be no fixed criteria as to what would be the suitable addition or subtraction from the value of the relied upon transaction. In Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and anr.

[4], this Court summed up the principle as follows:­ “4. The following factors must be etched on the mental screen:

(1)­(4)

(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of notifications under Section 6 and 9 are irrelevant).

(6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.

(7) In doing so by the instances method, the court has to correlate the market value reflected in the most comparable instance which provides the index of market value.

(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisition of land.)

(9) Even post­notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.

(10) The most comparable instances out of the genuine instances have to be identified on the following considerations:

(i) proximity from time angle,

(ii) proximity from situation angle.

(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis­à­vis land under acquisition by placing the two in juxtaposition.

(12) A balance­sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.

(13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.

(14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:

(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.

(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself.

(17) These are general guidelines to be applied with understanding informed with common sense.”

Again in Viluben Jhalejar Contractor (D) by LRs. vs. State of Gujarat [5], it was observed:­ “24. The purpose for which acquisition is made is also a relevant factor for determining the market value. In Basavva v. Special Land Acquisition Officer, (1996) 6 SCC 640, deduction to the extent of 65% was made towards development charges.

25. In Bhagwathula Samanna, (1991) 4 SCC 506, it has been held: (SCC pp. 510­11, para 11) “11. The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land. In applying the principle it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition which is the only relevant factor. Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position. If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications, etc. then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.”

26. In L. Kamalamma, (1998) 2 SCC 385, this Court held: (SCC p. 387, para “6) ... Ext. B­30 is a sale deed dated 9­8­1976, the transaction having taken place prior to eight months from the issue of the preliminary notification for acquisition of land in the present case. Having found that the piece of land referred in Ext. B­30 is situated very close to the lands that are acquired under the notification in question the Reference Court and the High Court relied upon the said document and, in our view, rightly. Further when no sales of comparable land were available where large chunks of land had been sold, even land transactions in respect of smaller extent of land could be taken note of as indicating the price that it may fetch in respect of large tracts of land by making appropriate deductions such as for development of the land by providing enough space for roads, sewers, drains, expenses involved in formation of a layout, lump sum payment as also the waiting period required for selling the sites that would be formed.”

27. In Administrator General of W.B.

v. Collector, (1988) 2 SCC 150, deduction to the extent of 53% was allowed.

28. In K.S. Shivadevamma v. Asstt. Commr. and Land Acquisition Officer, (1996) 2 SCC 62, it was held: (SCC p.

65, para 10) “10. It is then contended that 53% is not automatic but depends upon the nature of the development and the stage of development. We are inclined to agree with the learned counsel that the extent of deduction depends upon development need in each case. Under the Building Rules 53% of land is required to be left out. This Court has laid as a general rule that for laying the roads and other amenities 33­1/3% is required to be deducted. Where the development has already taken place, appropriate deduction needs to be made. In this case, we do not find any development had taken place as on that date. When we are determining compensation under Section 23(1), as on the date of notification under Section 4(1), we have to consider the situation of the land development, if already made, and other relevant facts as on that date. No doubt, the land possessed potential value, but no development had taken place as on the date. In view of the obligation on the part of the owner to hand over the land to the City Improvement Trust for roads and for other amenities and his requirement to expend money for laying the roads, water supply mains, electricity etc., the deduction of 53% and further deduction towards development charges @ 33­ 1/3%, as ordered by the High Court, was not illegal.”

29. In Hasanali Khanbhai & Sons v. State of Gujarat (1995) 5 SCC 422 and Land Acquisition Officer v. Nookala Rajamallu, (2003) 12 SCC 334 : (2003) 10 Scale 307, it has been noticed that where lands are acquired for specific purposes deduction by way of development charges is permissible.

30. We are not, however, oblivious of the fact that normally one­third deduction of further amount of compensation has been directed in some cases. (See Kasturi v. State of Haryana, (2003) 1 SCC 354, Tejumal Bhojwani v. State of U.P., (2003) 10 SCC 525, V. Hanumantha Reddy v. Land Housing Board v. Bharat S. Negi, (2004) 2 SCC 184 and Kiran Tandon v. Allahabad Development Authority, (2004) 10 SCC 745.)

31. In University of Agricultural Sciences v. Balanagouda, whereupon Mr Ranjit Kumar placed strong reliance, the Court noticed that if the acquisition is made for agricultural purpose, question of development thereof would not arise; but if the sale instance was in respect of a small piece of land whereas the acquisition is for a large piece of land, although development cost may not be deducted, there has to be deduction for largeness of the land and also for the fact that these are agricultural lands. In that view of the matter, deduction at the rate of 33% made by the High Court was upheld. It may not, therefore, be correct to contend, as has been submitted by Mr. Ranjit Kumar, that there cannot be different deductions, one for the largeness of the land and another for development costs.”

11. While considering the judgment of the Hon'ble Apex Court in the case of Chimanlal Hargovinddas vs. Special Land Acquisition Officer, (1988) 3 SCC 751, considering all the relevant factors which are considered by the Hon'ble Apex Court in the case of Union of India (supra) and in facts of this case, the Reference Court has rightly relied upon the sale deed dated 20.10.1997 relating to block no.573 of Village Vadsar. The evidence on record does indicate that the State or the acquiring body has not raised any contention to the effect that the lands are not similar or that there are any other factors which would require any deduction in the market value while taking into consideration the sale price of the comparable sale instance and it is also the case of any party that the lands acquired are different type and different location and on the contrary, upon re­ appreciation of the said evidence, it clearly establishes that the Reference Court has taken into consideration all relevant and crucial factors and has rightly determined the market value of the land under acquisition. All the contentions raised by Mr. P.Y. Divyeshwar, learned Central Government Counsel deserves to be negatived.

12. Similarly, considering the contentions raised by Mr. Amin for enhancement of the compensation awarded by the Reference Court, if appreciated, in opinion of this Court, when sale instance which is within the proximity of the date of Section 4 notification under consideration and more particularly, of the same Village is available on evidence, the said piece of evidence is the best comparable evidence instead of relying upon the opinion of an expert. The contention raised by Mr. Amin that so far as the claimants had also relied upon the sale instance of Village Khatraj is concerned, the same also deserves to be negatived. Firstly, though Villages Khatraj and Vadsar are nearby villages, the evidence show that the value of the land at Village Vadsar is higher than Village Khatraj. Even if according to the evidence adduced by the claimants, the land situated at Village Vadsar is as such in residential and economic zone and is also near to the boundary of AUDA and therefore, the Reference Court has rightly held that when the sale instance of the land which is acquired is available on record, the same has to be relied and in opinion of this Court, it is the best piece of evidence as most comparable sale instance even considering the land under acquisition from location point of view and geographically as per the map of both the Villages and Section 4 notification, majority of the lands are situated at Village Vadsar. Even considering the oral deposition of the original claimant – appellant of First Appeal no.1716 of 2015 is concerned, their lands are situated at Village Vadsar. He has also averred in his oral deposition that it has potential of residential development and even plans for such potential development were prepared. He has further deposed in his oral deposition that the lands sold by Mahendra Ambalal Shah to Arvind Mills Ltd. by sale deed dated 15.10.1997 is very near to the lands belonging to the original claimant situated at Village Vadsar and has further stated that his lands are more fertile and are more prominently located. In light of the oral deposition of the evidence led by the appellant of First Appeal no.1716 of 2015 itself, the contention raised by Mr. G.M. Amin, learned advocate for the land owners as well as the appellant in First Appeal no.1716 of 2015 that the Reference Court ought to have relied upon the sale instance of Village Khatraj while determining the market value of the land under acquisition, deserves to be negatived. Upon overall re­appreciation of the evidence on record, all the contentions raised by the learned Central Government Counsel as well as the Assistant Government Pleaders deserves to be negatived and the impugned judgment and award deserves to be confirmed. Similarly, the contentions raised on behalf of the appellant of First Appeal no.1716 of 2015 also deserve to be negatived.

13. Resultantly, First Appeal no.2484 of 2015 and First Appeals no.3122 to 3125 of 2014, 3394 of 2014 and 3395 of 2014 filed by the acquiring body fail and are hereby dismissed and First Appeal no.1716 of 2015 filed by the original claimant is also dismissed and the impugned judgment and award rendered by the Reference Court is hereby confirmed. However, there shall be no order as to costs as far as these appeals are concerned.

(R.M.CHHAYA, J) MRP (V. B. MAYANI, J)