IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2336 of 2007 With CROSS OBJECTION No. 110 of 2008 In FIRST APPEAL No. 2336 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 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 ?
========================================================= DABHI BALWANTSINH VISAJI Appellant(s) Versus SPECIAL LAQ OFFICER & 2 Defendant(s) ========================================================= Appearance :
MR YATIN SONI for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1, MR AJAY R MEHTA for Defendant(s) : 2, DELETED for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE C.L. SONI Date : 21/06/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal as well as cross objection arise from the judgment and award passed by the reference court in Land Reference Case No.17/02, whereby the reference court has awarded additional compensation at Rs.327/ plus statutory benefit under section 23 (1A), 23(2) and interest as per section 28 of the Land Acquisition Act (“the Act” for short).
2. The short facts are that for the project of ONGC, lands were to be acquired under the Act at village Pethapur. The notification under section 4 of the Act was published on 29.06.1999. The notification under section 6 was published on 31.08.2000. The Special Land Acquisition Officer thereafter assessed the market value and awarded Rs.26 per square metre as compensation with statutory benefits of increase in the price under section 23(1A) of the Act, solatium under section 23(2) of the Act and interest under section 28 of the Act from the date of the notification under section 4 of the Act and for the period prior to the notification under 4 of the Act, from the date of taking possession of the land, it was observed in the award that the party shall abide by the terms and conditions of the agreement for payment of the rent after the date of taking over of the possession until the notification under section 4 of the Act. As the claimants were not satisfied with the compensation, they raised the dispute under section 18 of the Act and the said dispute ultimately came to be referred to the reference court for adjudication being Land Reference Case No.17/02. The reference court at the conclusion of the reference passed the above
3. The respondent ONGC has also filed cross objection for reduction of the amount of compensation.
4. We have heard the learned counsel appearing for the appellant Mr.Yatin Soni and Mr. Valmik Vyas for Mr.Ajay Mehta for ONGC and Mr.Dave, learned AGP for Special Land Acquisition Officer.
5. The perusal of the judgment of the reference court and more particularly the discussions at paragraph 16 of the judgment shows that the reference court was mainly guided by the compensation awarded for acquisition of the land at village Vavol in Land Reference Case No.892/98 pertaining to the acquisition of the year 1992 and thereafter, has considered the appreciation at the rate of 10% p.a. and has awarded compensation.
6. The learned counsel for the appellant Mr.Soni has relied upon the decision of this Court in the case of Popatbhai Vithalbhai Patel and others Vs. Special Land Acquisition Officer and another in First Appeal No.3152/05 and allied matters dated 14.09.2011 which arose from the very Land Acquisition Case No.892/98, considered and relied upon by the reference court in the present case, and it was submitted that in the appeal this Court has enhanced the compensation for the land situated at village Vavol to Rs.325 per square metre instead of Rs.178 being additional compensation awarded by the reference court in the said case. He submitted that therefore, the basis for assessment of the market value has to be Rs.325 per square metre in the year 1992 for the land of village Vavol and thereafter, appreciation at the rate of 10% p.a. is to be considered and the compensation is to required to be enhanced accordingly.
7. Whereas Mr.Vyas, learned counsel appearing for ONGC submitted that the decision in First Appeal No.3152/05 has no applicability inasmuch as in his submission Vavol is located at a distant place and therefore, cannot be compared with the land at village Pethapur and therefore, he submitted that the reference court has also committed error in relying upon the decision of the another reference court for acquisition of the land at village Vavol. The learned counsel further submitted that the land under acquisition at Pethapur could be compared with the lands at village Kolavada which were also acquired in the year 1997 and the disputes were raised for claiming higher compensation and those disputes were decided by the Reference Court in LAR Nos.616/98 to 630/98 and the additional compensation was fixed at Rs.149 per square metre. He submitted that against the said decision, the matter was carried before this Court and this Court reduced the compensation to Rs.141 per square metre and in his submission, if the aforesaid basis is taken into consideration, the compensation awarded by the reference court deserves to be reduced.
8. As such so far as the acquisition of the land at village Kolavada is concerned, no such evidence was brought before the reference court by the respondent and therefore, if the matter is to be examined strictly on the basis of the evidence produced by the parties, the instance of acquisition at Kolavada and the compensation awarded for such purpose cannot be taken into consideration. Apart from the above, even if it is considered for the sake of examination that since this Court has decided the matter in respect of payment of compensation for the land acquired at village Kolavada, the decision of this Court is required to be considered, then also, it does appear that the acquisition in the present case is in the year 1999 whereas the acquisition for the land at village Kolawada was in the year 1987, roughly 12 years prior to the acquisition in the present case. It is hardly required to be stated that the development during the period of 12 years would be altogether different, more particularly in the case where the lands are located in the nearby area of the capital city of Gandhinagar. Had it been a case where no other evidence is available for the comparable land and the compensation fixed thereon, it might stand on different footing, but in the present case the evidence is available for the acquisition made and compensation awarded for the land of village Vavol which is of the year 1992, roughly by the difference of about 6 years and more. Therefore, we find that even otherwise also it would not be reasonable or appropriate to rely upon the compensation fixed for acquisition of the land at village Kolavada. Consequently, the decision upon which reliance is placed by the learned counsel cannot be taken into consideration and even if considered, does not deserve to be considered for the purpose of fixing the amount of compensation of the land under acquisition.
9. The aforesaid would lead us to examine the evidence available on record which is for the acquisition of the land at village Vavol. It is true that the reference court has relied upon the compensation awarded for the acquisition of the land at village Vavol by the another reference court in Land Acquisition Case No.892/98 and it is undisputed position that the boundary of village Vavol as well as the boundary of village Pethapur, the acquisition in the present case, both are touching to the limits of Gandhinagar city. However, perusal of the judgment of this Court in Popatbhai Vithalbhai Patel (supra) shows that this Court enhanced the amount of compensation because the reference court in that case did not distinguish the various parcels of the land and location of the land at village Vavol and had only relied upon the compensation fixed for the land at village Vavol in earlier matter being Land Acquisition Case No.214/84. We may also refer to the decision of this court in the said judgment. For ready reference, the relevant is at paras 8 to 10, which reads as under “8. It appears from the record that the earlier decision for acquisition of the land at village Vavol in which Notification under section 4 of the Act was published in the year 1977 was produced at Exhibit 46 in Land Acquisition Case No. 214 of 1984 and other allied matters.
9. The discussion for arriving at the market value of the land for the purpose of awarding compensation are issue nos. 1 to 3 in the said decision at Exhibit 46. The whole area which was under acquisition in the said case could broadly be divided into two parts though all lands were located at village Vavol. One was pertaining to the land located towards village Vavol and another was located towards Gandhinagar city and in between there is Railway track. Taking into consideration the said aspect, the Reference Court, in the said decision awarded compensation at Rs.80/ per sq. mtr. to the land on one side of the Railway track towards Vavol village, whereas the land located from Railway track towards Gandhinagar, and more particularly sectors no. 13, 14 and 15, the Reference Court found the valuation more and, therefore, awarded compensation at Rs.130/ per sq.mtr. It is an admitted position that the aforesaid decision of the Reference Court was carried before this Court in the proceedings of these appeals being First Appeal No. 969 of 1986 and allied matters and the Division Bench of this Court vide judgment dated 21.10.2002, confirmed the decision of the Reference Court and dismissed the appeals preferred by the Special Land Acquisition Officer.
10. If the aforesaid aspect is considered with the impugned judgment and, more particularly reasons recorded by the Reference Court, it appears that the Reference Court has committed an error in treating the land under acquisition at par with land located on one side of the Railway track towards Vavol village and did not consider the important aspect that the lands in the present case are located on the other side of the Railway track towards Gandhinagar city. Under these circumstances, the Reference Court ought to have considered the base for considering the market value and the consequential compensation awarded for the land located on the other side of the Railway track towards Gandhinagar. The lands in the present case are located near sector nos. 4 and 5 of Gandhinagar city, whereas the land in the earlier matter, in respect of which the acquisition was in the year 1977 were located towards sector nos. 13, 14 and 15. It appears from the map which is produced on record that the lands in question are on the same side of Railway track towards Gandhinagar city though all the lands are of village Vavol. Therefore, we find that there is non application of mind on the part of the Reference Court in not considering the basis of awarding compensation by Reference Court in earlier matter at Rs.130/ per sq. mtr. and it has erroneously considered the base at Rs.80/ per sq. mtr.”
10. The aforesaid shows that it is on account of the land under acquisition in that case, having being located on one side of the railway track towards Gandhinagar city, this court found that the basis was to be taken into consideration as that of Rs.130 per square metre and not Rs.82 square metre as was considered by Reference Court and therefore, thereafter taking the basis at Rs.130 per square metre keeping at par with the other lands acquired earlier for which the compensation was awarded in respect of the land located on one side of the railway track towards Gandhinagar city, the compensation was enhanced to Rs.325 per square metre. In the present case, if the basis is to be considered by distinguishing the parcels of land on their location towards Gandhinagar city, the appellant would not be entitled to the benefit thereof since the land at village Pethapur which is under acquisition are in any case located on the other side of railway track not facing Gandhinagar city but towards Mansa side. Therefore, we find that the enhancement as was considered by this Court in the above referred decision in the case of Popatbhai Vithalbhai Patel (supra), cannot be made as a valid ground for enhancement of the compensation in respect of the land under acquisition at village Pethapur which is in the present case.
11. Mr.Soni, learned counsel appearing for the appellant attempted to rely upon the decision of the Apex Court in the case of Mehrawal Khewaji Trust (Regd.) Faridkot vs. State of Punjab 2012 AIR SCW 2822 and contended that whenever there are various comparable instances, the highest value is to be considered. In his submission, the highest value for the land at village Vavol is Rs.325 per square metre being the compensation fixed for the acquisition of the year 1982 as per the above referred decision in the case of Popatbhai Vithalbhai Patel (supra) and therefore, it was submitted that the compensation deserves to be enhanced.
12. The Apex Court in the case of Mehrawal Khewaji Trust (Regd.) Faridkot at paragraph 15 observed thus “15) It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bona fide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation.”
13. In the above referred decision of the Apex Court, the observations were made in a case where there were different Sale Deeds pertaining to different transactions relied upon. Such is not the fact situation in the present case. Further, if the lands are located in the same manner, possibly the question of considering the highest value may arise. But in the present case, as observed by us hereinabove, the land under acquisition are located on one side of the railway track not facing Gandhinagar city, but towards Mansa and such being the situation, the reliance placed is ill founded and of no help to the original claimants/appellants.
14. If the location of the land is taken into consideration, being on the other side of the railway track than that of facing Gandhinagar city, it cannot be said that the reference court has committed any error in taking the basis of the land located at village Vavol and compensation awarded for such purpose by the reference court in Land Reference Case No.892/96.
15. However, Mr.Vyas, learned counsel appearing for the respondent submitted that there is substantial distance between village Vavol and village Pethapur and therefore, in his submission, the reliance by the reference court upon the decision for acquisition of the land at village Vavol was erroneous.
16. No evidence is brought to our notice for showing the exact distance between village Vavol and village Pethapur. Further, it is a fact and the said aspect is apparent from the map produced that the boundary of village Pethapur is touching to Gandhinagar city and so is in case of the boundary of village Vavol which is touching the Gandhinagar city. No evidence is produced to our notice to show that the development in Pethapur was lesser in comparison to village Vavol.
17. Under these circumstances, the compensation fixed and awarded in the recent past for acquisition of the land which is located in the nearby area could be considered as a valid base by the reference court and therefore, we find that it is not possible to accept the contention of the learned counsel for ONGC that the value or the compensation for the acquisition of the land at village Pethapur should be lesser than the compensation for the acquisition of the land at village Vavol being the different market value or the lesser market value. After taking the base of the compensation fixed for the acquisition of the land at village Vavol, the reference Court has considered the time gap between notification under section 4 in the case of acquisition of the land at village Vavol and acquisition of the land in the present case and has considered appreciation at the rate of 10% p.a. which is by now well settled so far as the period prior to 2000 is concerned. Under these circumstances, we find that the reference court has not committed any error in assessing the market value and fixing the compensation of the land in question.
18. Mr.Soni, learned counsel contended that if the enhanced compensation fixed by this Court at Rs.325 per square metre for the acquisition of the land at village Vavol is considered, in the case of Popatbhai Vithalbhai Patel (supra) and thereafter if the deduction is made of 10% or 20%, as the case may be, for the acquisition in the present, the claimants would be agreeable.
19. We find that if the decision upon which the reliance is placed is ill founded, the question of considering the said aspect would not arise.
20. Mr.Soni also attempted to rely upon the valuer's report which was produced before the reference court vide exhibit 18 and he contended that as per the valuer's report, the assessment of the land was at Rs.800 per square metre whereas the compensation is on much lower side and therefore, this Court may consider.
21. As such, the reference court has not relied upon the valuer's report for assessment of the compensation. Further, reliance upon the valuers report is one of the aspect to be considered for assessment of the market value of the land but such question may arise only if the court has no other more reliable evidence available on record. In a case where the compensation is to be fixed by the reference court under the Act, various methods are available; one is the yield method, another is the sale instance and the third is the compensation fixed of the nearby land by the Court. In case of last one, viz., when the compensation is fixed by the court on the basis of the compensation awarded for nearby land, such is one of the best piece of evidence which could be considered and has been rightly considered by the reference court for fixing the amount of compensation. Therefore, under these circumstances, if the reference court has not considered the valuer's report for assessing the market value of the land, we find that such approach on the part of the reference court could not be said to be erroneous since the decision of the another reference court in respect of the compensation for the adjoining land or the nearby land was already available and such were of comparable acquisition and the compensation fixed thereof. Therefore, the contention of the learned counsel for the appellant fails.
22. The other benefits awarded by the reference court for increase in the amount of compensation under section 23(1A) of the Act and solatium under section 23(2) of the Act are the statutory benefits and therefore, have been rightly granted by the reference court and no interference is called for. Even on the aspect of interest under section 28 of the Act is concerned, the claimants are entitled to the interest as per the provisions of the statute but the learned counsel appearing for the respondent made the grievance that the interest should not have been from the date of taking over of the possession but should be from the date of notification under section 4 of the Act, whichever is earlier because as per ONGC, the possession was taken as back as in the year 1983 under the agreement and the rent was being paid.
23. In our view such evidence has come on record under the written deposition on behalf of th respondent (exhibit 23). There is no contradiction in the crossexamination. The evidence shows that the rental amount is paid by ONGC to the claimants. Therefore, the fixation of the compensation and the liability to pay the interest would be from the date of the notification under section 4 of the Act, because the possession was already taken over and the rent was also paid by ONGC to the owner of the land. Hence, it appears that the reference court has committed error in awarding interest from the date of taking over of the possession which is prior to the notification under section 4 of the Act. Hence, it would be appropriate to grant interest on the amount of compensation and the increase in the price under section 23(1A) of the Act and solatium under section 23(2) of the Act from the date of taking notification under section 4 of the Act which is 29.06.1999 for the first year at the rate of 9% p.a. and for the subsequent year at the rate of 15% p.a. until the amount of compensation together with the statutory benefits are paid and/or deposited with the Court.
24. In view of the aforesaid observations and discussion, the appeal No.2336/07 is dismissed. Cross Objection No.110/08 is allowed to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs.
(JAYANT PATEL, J.) (C.L. SONI, J.) *bjoy