NEUTRAL CITATION
C/FA/1409/2019 JUDGMENT DATED: 11/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1409 of 2019
With
R/FIRST APPEAL NO. 1410 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MIHIRBHAI HARIVADAN JOSHI LH OF KAPILAGAURI D/O GOVINDLAL
CHHAGANLAL
Versus
SPECIAL LAND ACQUISITION OFFICER GANDHINAGAR
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Appearance:
MR SIRAJ R GORI(2298) for the Appellant(s) No. 1
MR AKASH CHHAYA, AGP for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 11/08/2023
ORAL JUDGMENT
1. Heard learned Advocate Mr.Siraj Gori on behalf of the appellant and learned AGP Mr.Akash Chhaya on behalf of the respondent State.
2. By way of these appeals, the appellant challenges the judgement and Page 1 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined order dated 27.2.2015 passed in Land Acquisition Reference No.969 of 1998 corresponding to First Appeal No.1409 of 2019 and Land Acquisition Reference No.928 of 1998 corresponding to First Appeal No.1410 of 2019. Since judgement is with regard to lands situated in the same village and whereas since the considerations, which weighed with the learned Reference Court were similar, this Court deems it appropriate to decide both the First Appeals finally by way of the present common judgement.
3. Facts which are relevant for the purpose of deciding the present First Appeals are enumerated herein below:-
First Appeal No.1409 of 2019 :-
3.1. This appeal concerns the land bearing Survey Nos.63 and 65 situated at Village Borij, Taluka and District Gandhinagar. The total area of land concerning the said Survey numbers is 35309 sq. mtrs. Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as "the Act" for short) had been issued on 20.12.1968, whereas an amended Notification under Section 4(1) of the Act had been again issued on 21.1.1969. The Notification under Section 6 of the Act was published on 25.4.1969. The Land Acquisition Officer had declared his award under Section 11 of the Act on 27.9.1971 awarding an amount of Rs.3,000/- per Hectare. It would be pertinent to mention here that while the original award had been declared in he year 1971, on account of certain intervening litigations before the learned Civil Court as well as before this Court as regard ownership of the land as well as against non-payment of compensation, ultimately the final award came to be declared by the Land Acquisition Officer on 21.3.1996 awarding a total amount of Page 2 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined Rs.10,592.70 for the total area, which would roughly translate to around Re.00.30 per sq. mtr. Being aggrieved by the amount awarded, the appellant - land owner had preferred Land Reference under Section 18 of the Act and whereas vide impugned judgement and order, the learned Reference Court being the Principal Sr. Civil Judge, Gandhinagar had enhanced the compensation payable to the tune of Rs.,9000/- per Hectare i.e. approximately Re.00.90 per sq. mtr. Being aggrieved by the impugned judgement and order, more particularly seeking enhancement of compensation, the appellant has preferred the afore-mentioned appeal.
First Appeal No.1410 of 2019 :-
3.2. This appeal concerns land bearing Survey Nos.32/1, 32/2 and 43 situated at Village Borij, Taluka and District Gandhinagar, admeasuring approximately 49573.99 sq. mtr. The Notification under Section 4 of the Act had been originally issued on 10.3.1965, which was amended vide Notification dated 25.3.1965 and whereas Notification under Section 6 of the Act came to be issued on 21.8.1965. As stated herein above, while the original award came to be published on 18.9.1971, on account of intervening litigations and upon direction of this Court as far as the said lands were concerned, award under Section 11 came to be declared by the Land Acquisition Officer on 21.3.1996 awarding a total compensation of Rs.11,187/-. The Land Acquisition Officer had awarded Rs.22.50 and Rs.20 for different parcels of land and whereas on an average the compensation was awarded at the rate of Re.00.20 per sq. mtr. Aggrieved by the award, the land owner had preferred Land Reference under Section 18 of the Act and whereas the Reference Court being the learned Principal Sr. Civil Judge, Gandhinagar vide Page 3 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined the impugned judgement and order had enhanced the compensation to the tune of Rs.67.50 per guntha for land bearing Survey Nos.32/1 and 32/2 and Rs.60 per guntha for land bearing Survey No.43. On an average, the increase works out to Re.00.65 and Re.00.60 per sq. mtr. Being aggrieved by the marginal increase, more particularly since the claim of the appellant was to be paid compensation at the rate of Rs.10/- per sq. mtr., the appellant has preferred the above numbered appeal.
4. Heard learned Advocate Mr.Siraj Gori for the appellant, who would submit that the learned Reference Court had gravely erred in not considering the request for increase at the rate of Rs.10/- per sq. mtr., as regards both the lands. Learned Advocate would submit that the land in question had been acquired for the purpose of 'Capital Project', whereby the city of Gandhinagar was established as capital of the State of Gujarat. Learned Advocate would submit that as such, prior to the State of Gujarat being formed on 1.5.1960, there was no city of Gandhinagar in existence and whereas upon formation of the State, it was decided to establish a capital around 18 to 20 kms from the city of Ahmedabad. Learned Advocate would submit that lands of Village Borij i.e. the Village in question and other adjoining Villages had been acquired for the purpose of the capital project. Learned Advocate would submit that though the exact location of the land at present could not be stated with pinpoint accuracy and whereas from the cross-examination of the Land Acquisition Officer in the Reference proceedings, it becomes clear that the lands in question, more particularly lands bearing Survey Nos.63 and 65 were situated somewhere near the Secretariat and the Legislative Assembly i.e., according to the learned Advocate Mr.Gori, in the heart of the city. Learned Advocate would further draw the attention of this Court to the said cross-examination to submit that Sectors 20 and 21 of Page 4 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined Gandhinagar City as well as the old Secretariat and the New Secretariat as well as the Official Residences of the Governor, Chief Minister and other Ministers were all located in the land acquired for the 'Capital Project' in Village Borij.
4.1. Learned Advocate Mr.Gori would submit that the appellant, to show a comparable instance for deciding the market value of the land in question, had relied solely on a decision of a Division Bench of this Court in First Appeal No.125 of 1973 and allied matters dated 20.12.1973. Learned Advocate would submit that the said decision was concerning acquisition of lands, which were situated approximately 10 to 15 kms away from Gandhinagar, more particularly for the purpose of construction of Khodiyar - Gandhinagar road and for laying sewerage pipelines. The lands, according to the learned Advocate, were situated on the outskirt of Village Khoraj of Gandhinagar Taluka. Learned Advocate Mr.Gori would submit that the judgement was concerning six parcels of agricultural lands and whereas while the Reference Court had enhanced the compensation at varying rates i.e. Rs.2.50 per sq. yard for one Survey number, Rs.5 for two survey numbers, Rs.6 for three survey numbers, and Rs.12 for one survey number and whereas the Hon'ble Division Bench had enhanced rates to Rs.5/-, Rs.7/-, Rs.10/- and Rs.13.50. Learned Advocate would submit that while the lands were situated in a Village not being fairly developed, as could be made out from the judgement of the Hon'ble Division Bench, yet considering the potentiality of development and further more importantly considering the favourable rise in price on account of the 'Capital Project' coming up nearby, the Hon'ble Division Bench had awarded the above mentioned enhancement. Learned Advocate would submit, relying upon the observations of the Hon'ble Division Page 5 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined Bench, that if an enhancement is granted in compensation for land acquired approximately 15 kms from the city of Gandhinagar, and whereas the value of the land after enhancement stood between Rs.5 to Rs.13.50, then considering the very same yardstick a land which had been acquired for the 'Capital City Project' and which was located almost in the heart of the Capital City, ought to be granted compensation at least at the rate of Rs.10/- per sq. mtr., as prayed for by the appellant and whereas the increase from Re.00.30 to Re.00.90
- Re.00.20 to Re.00.60/Re.00.65 is valuing the land at nothing, but a pittance without taking into consideration the value the land would have fetched in the open market. Thus, submitting learned Advocate Mr.Gori would request this Court to enhance the compensation awarded to the tune of Rs.10/- per sq. mtr.
5. As against the submissions made by the learned Advocate for the appellants, learned AGP Mr.Akash Chhaya on behalf of the respondent State would submit that the learned Reference Court, after giving due consideration to all the aspects as raised by the appellants, has passed the judgement impugned. Learned AGP would further submit that even the judgement relied upon by the learned Advocate for the appellants, had also been considered by the learned Reference Court. Having regard to such submissions, learned AGP would submit that no error whatsoever has been committed by the learned Reference Court and whereas the present appeals may not be entertained by this Court.
6. Heard learned Advocates for the respective parties and perused the record and proceedings. The following issues arise for considered of this Court:-
1. Whether an error has been committed by the learned Reference Page 6 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined Court in fixing the market value of the lands based upon which the compensation was decided?
2. Whether the judgement passed by the learned Reference Court calls for any interference ?
3 What should be the final relief ?
6.1. My answer to the above issues are as follows:-
1. In affirmative
2. In affirmative
3. As per final order.
Issues No.1 and 2 :-
6.2. Since both the Issues No.1 and 2 are inter-related, this Court deems it appropriate to discuss the same conjointly. At the outset, this Court seeks to rely upon the observations of the Hon'ble Apex Court in case of Chimanlal Hargovindas Vs. Special Land Acquisition Officer, Pune and Ors., reported in (1988) 3 SCC 751, wherein the Hon'ble Apex had laid down the principles which have to be kept in mind by a Court while deciding the valuation of the land under acquisition. Paragraph No.4 of the said decision being relevant for the present purpose is reproduced herein below for benefit:-
"4. The following factors must be etched on the mental screen:Page 7 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023
NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined (1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to suit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under sec. 4 of the Land Acquisition Act (dates of Notifications under secs. 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 sec. 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.
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(8) only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land).
(9) Even post notification 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.
(l0) 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 vis-a-vis land under acquisition by placing the two in juxtaposition.
(12) A balance-sheet 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 there after 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:
Plus factors Minus factors
1. smallness of size. 1. largeness of area.
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NEUTRAL CITATION
C/FA/1409/2019 JUDGMENT DATED: 11/08/2023
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2. proximity to a road. 2. situation in the interior at a
distances from the Road.
3. frontage on a road. 3. narrow strip of land with very
small frontage compared to
death.
4. nearness to developed area. 4. lower level requiring the
depressed portion to be filled
up.
5. regular shape. 5. remoteness from developed
locality.
6. level vis-a-vis land under 6. some special
acquistion. Disadvantageous factor which
would deter a purchaser.
7. special value for an owner
of an adjoining property to
whom it may have some very
special advantage.
(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 l000 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 approx. between 20% to 50% 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 Page 10 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined 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 looked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own facts 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."
6.3. While the Hon'ble Apex Court has inter alia laid down, insofar as relatable to the facts of the case, that the most comparable instance, which provides the index of market value has to be taken into account and whereas in the instant case, the only instance which had been relied upon by the claimant/appellant before the learned Reference Court as well as before this Court is an earlier decision of the Hon'ble Division Bench in an appeal against a decision of the learned Reference Court with regard to the land situated at Village Khoraj. In this regard, this Court would rely upon the observations of the Hon'ble Apex Court in case of ONGC Limited Vs. S. V. Patel, reported in (2005) 6 SCC 454, paragraph 11 being relevant for the present purpose is reproduced herein below for benefit :-
"11. While determining the amount of compensation payable in respect of the lands acquired by the State, indisputably, the market value therefor has to be ascertained. Although, there exist different modes for arriving at market value for the land acquired; the best method, however, as is well- known would be the amount which a willing purchaser of the land would pay to the owner of the land as may be evidenced by deeds of sale. In absence of any direct evidence on the said point, the court may take recourse to other methods; viz. judgments and awards passed in respect of acquisitions of lands made in the same village and / or neighbouring villages. Such a judgment and award in absence of any other evidence like deed of sale, report of expert and other relevant evidence, however, would have only evidentiary value."Page 11 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023
NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined 6.4. Again, the Hon'ble Apex Court in case of Mohammad Raofuddin Vs. Land Acquisition Officer, reported in (2009) 14 SCC 367 had inter alia reiterated the above proposition with certain additional observations. Paragraph 11 of the said decision is reproduced herein below for benefit:-
"11. One of the preferred and well accepted methods adopted for working out the market value of the land in acquisition cases is the comparable sales method. The comparable sales i.e. the lands sought to be compared must be similar in nature and potentiality. Again, in the absence of sale deeds, the judgments and awards passed in respect of acquisition of lands, made in the same village and/or neighbouring villages can be accepted as valid piece of evidence and provide a sound basis to determine the market value of the land after suitable adjustments with regard to positive and negative factors enumerated in Sections 23 and 24 of the Act. Undoubtedly, an element of some guess work is involved in the entire exercise."
6.5. From a conjoint reading of the observations of the Hon'ble Apex Court, it would appear that while there may be different mode for arriving at the market value of the land acquired, in absence of any other direct evidence, the Court is empowered to take into consideration judgements and awards passed in respect of acquisition of lands in the same village or in nearby village. It is also observed more particularly in the later decision that such judgements and awards passed in respect of acquisition of land provide a sound basis to determine market value of the land and whereas the Court is empowered to make suitable adjustments with regard to positive and negative factors as enumerated in Section 23 and Section 24 of the Land Acquisition Act. Again the Hon'ble Apex Court has further clarified that some amount of guess work would be involved in the entire exercise.
6.6. Having regard to the principles as observed by the Hon'ble Apex Page 12 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined Court, this Court would now consider the impact of the decision of the Hon'ble Division Bench as regards the lands in question. It would appear that the land in question before the Division Bench was situated at Village Khoraj, which is not the village in which the present lands are situated, nor could be stated to be an adjoining village. The distance between the lands in question and the lands with regard to the decision of the Hon'ble Division Bench, as noted by the Division Bench itself, would be around 15 kms. Now, as regards the Notification, it would appear that in the instant case, Notification under Section 4 had been issued in the year 1969 in respect of First Appeal No.11409 of 2019 and the same had been issued in the year 1965 in respect of First Appeal No.1410 of 2019 and the Notification under Section 6 had been issued in the year 1969 and 1965 respectively. The Land Acquisition officer had published his award in the year 1971 in both the cases. As far as the case before the Division Bench is concerned, Notification under Section 4 had been issued in the year 1967 with regard to six parcels of land and in the year 1969 with regard to seven parcels of land and Notification under Section 6 was issued in the year 1968-69 and award had been published in the year 1971. Thus, it would appear that there is proximity in terms of the time when the Notifications under Section 4 and Section 6 as well as the award under Section 11 of the Act were published.
6.7. It would appear that in the present case, the Land Acquisition Officer had fixed the market value at approximately paise 30 (Re. 0.30) per sq. mtr., with regard to First Appeal No.1409 of 2019 and paise 20 (Re.0.20) per sq. mtrs., with regard to First Appeal No.1410 of 2019. Learned Reference Court had enhanced the amount to paise 90 (Re.0.90) per sq. mtr., as regards First Appeal No.1409 of Page 13 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined 2019 and paise 60 (Re.0.60) per sq. mtr., as regards First Appeal No.1410 of 2019. As against the same, in the case before the Division Bench, the Land Acquisition Officer had fixed a meagre compensation, which had been enhanced by the learned Reference Court at the rate of Rs.2.50, Rs.5, Rs.6, and Rs.12 for various parcels of lands. The Division Bench had enhanced the same by Rs.5, Rs.6, Rs.7, Rs.10 and Rs.13.50. At this stage, it would pertinent to note that since no other comparable instance, including sale deed of the relevant point of time, etc., had been produced by the parties before the Land Acquisition Officer or the learned Reference Court as the case may be. It would appear that the judgement of the Division Bench referred to above was the judgement of the Division Bench and whereas this Court would try and analyze whether the same could be treated to be a comparable instance.
6.8. As far as the area of land is concerned, smallest parcel of land as regards the land in question before the Division Bench was admeasuring 1148 sq. mtr., i.e. relatable land bearing Survey No.75 and the biggest parcel of land was admeasuring 4672 sq. mtr., i.e. land bearing Survey No.74. As against the same, the land concerning First Appeal No.1409 of 2019 is admeasuring 35309 sq. mtr., and land concerning First Appeal No.1410 of 2019 would be admeasuring 49573.99 sq. mtr.
6.9. From the above comparison it would appear that while there is proximity in terms of the time when the Notifications under Section 4, Section 6 and award Section 11 had been passed with regard to the lands before the Division Bench and the present lands, whereas insofar as the area of the land is concerned, the lands in the present case are approximately eight to ten times larger in area than the area Page 14 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined of the land, which had been considered by the Division Bench.
6.10. Again it would be pertinent to mention that the Hon'ble Division Bench had observed, as regards the price of the lands increasing on account of the capital project, which observation has been emphatically relied upon by the learned Advocate Mr.Gori for the appellants. The Division Bench had observed that "although there is no evidence to show what was the increase in the market value of the lands in the locality between May 1962 and the date of the first acquisition notification, viz. 31.8.1967, we would appropriately take into account the pre-eminent circumstance that a capital project was earlier planned in the year 1960 and was being executed about this time at a good speed so as to near completion in 1969 February. We are conscious of the fact that Gandhinagar which was to be the capital of Gujarat at the time was at a distance of about 10 to 15 kms., from the area of the lands under acquisition. However, the very fact that a capital is springing up at a good speed hardly at a distance of 10 to 15 Kms, would boost up the prices of lands situated in the area in question."
6.11. Having regard to the said observation, it has been submitted by the learned Advocate for the appellants that if there has been a boost in the price of lands situated 10 to 15 kms away more particularly on account of the capital project, then the value of the land which was situated in the heart of the capital project would itself have to be given an appropriate increase. As against the same, in the considered opinion of this Court, what would be relevant to compare would be along with the observation, the potentiality of the land in question as compared to the potentiality of the land as was being considered by the Division Bench. It would appear that from the lands, which were Page 15 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined considered by the Division Bench, while material with regard to potentiality of the land, etc., had been placed before the Division Bench, no such material has been produced either before the learned Reference Court or before this Court. Under such circumstances, it would appear that for the purpose of comparison, the land which had the least development potential, from amongst the lands which were being considered by the Division Bench ought to be taken as a bench mark. Again it would be relevant to mention here that neither in the decision of the learned Reference Court, nor in the decision of the Division Bench, this Court finds any discussion with regard to any substantial development, which had taken place in the vicinity of either of the lands i.e. the present lands and the lands which were being considered by the Division Bench. Again as far as village Khoraj is concerned, at the relevant point of time, the population of the village was around 5000 and whereas though no details have been given as regards the population of the village in question i.e. village Borij, but as noted herein above, relying upon some guess work, it would appear that a figure of 5000 would be a reasonable indicator as regards the population of the village in question also. Furthermore, as regards village Bhorij i.e. the present village while there is no indicator as regards development, which had taken place in the village it would also appear that as noted by the Division Bench no development in the village Khoraj and except for an improvised tea stall and some shops situated in Survey No.58/A/2/A. The development as noted by the Division Bench was near Khodiyar Railway Station, which was approximately 3 kms away from the village Khoraj and whereas the development was in the nature of about 10 to 12 shops, including hotel and grocery shops and some residential premises near Khodiyar Railway Station. The only bench Page 16 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined mark as appear from the decision of the Division Bench is the fact of proposed Khodiyar-Gandhinagar road passing adjacent to some of the lands in question. Again what would be pertinent to note is that there was a railway line passing in the vicinity and whereas the same would have its own negative effect as regards the potentiality of the land. It would also be relevant to state here that while the learned Reference Court relying upon the decision of the Division Bench, had inter alia observed that on such basis i.e. on the basis of the increase in price which would occur on account of the capital project coming up price of the land would have been escalated, yet at the same time the learned Reference Court has not given any cogent reason as to why the lands which were otherwise in the heart of acquisition namely the land situated between the Secretariat and Legislative Assembly should be valued on such a low price. Furthermore, as far as the judgement of the Division Bench is concerned, the Division Bench was concerned 7 different parcels of land the relevant details of the market value fixed by the learned Reference Court and the market value pursuant to the enhancement by the High Court are produced herein below in a tabular form:-
Notification under Section 4 dated 31.08.1967 Sr. Survey No. Measurement Award by By High Ref. Court Court 1 58/A/2/A 20.80 6 10.00 2 73/1 43.68 6 7.00 3 74/1 4672 6 10.00 4 76 04520 5 7 5 75 1448 5 7 6 58/A/2/A 2523 12 13.50 Notification under Section 4 dated 30.12.1969 1 85 3116 2.50 5 Page 17 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined 6.12. As noted herein above, Survey No.85 from the judgement appears to be the land having the least potential, more particularly the land situated around two or three fields away from the proposed Khodiyar - Gandhinagar Road. It is also mentioned in the decision that while Survey Nos.73, 76 and 75, which are on the proposed Khodiyar - Gandhinagar Road have been valued at Rs.7/-, considering that Survey No.85 is removed by two - three fields from the proposed road and also considering that Survey No.85 as the benefit of first acquisition to some extent, the Division Bench had enhanced the market value of Survey No.85 from Rs.2.50 to Rs.5/- per sq. mtr. Now, comparing the potential of the land in question, it would appear that to an extent, there was no much difference between the present lands and land at Survey No.85, while the Hon'ble Division Bench has granted some enhancement on account of the proposed Khodiyar-Gandhinagar Road being nearby, similarly the fact of the present land being in the heart of the acquisition project would also be required to be taken into consideration. As it is, there is no development in or around Survey No.85 and as far as the village itself is concerned, the development was in the nature of a couple of shops and a temporary tea shop located at Survey No.58/A/ 2, whereas the nearest development was approximately 3 kms away near Khodiyar Railway Station. It would also appear that considering above aspect, though there are no other indicators as regards the potential of the land in question, but considering the fact that the Division Bench in the decision with regard to lands acquired around the same period of time and also relying upon the fact of a capital city coming up at good speed had enhanced the value of the land, therefore, the approximate market value of the lands in question would be required to be taken into account most probable Page 18 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined comparable instance, i.e. instance of land bearing Survey No.85 in the array of lands which had been acquired insofar as the issue had been dealt with by the Division Bench. Again at the cost of repetition it requires to be noted that while the learned Reference Court was of the opinion that the valuation of the land was on the lower side i.e. according to the learned Reference Court, the Acquisition Officer had valued the land at ¼ th of its price, yet it also would be required to be stated that there is no discussion in the judgement as to how learned Reference Court has come to such a figure. To this Court, it would appear that when potentiality of the lands are to be treated to have increased on account of a capital project coming at least 15 kms away from the location of that land than the land, which is situated in the middle of capital city project also should have been given due and proper weightage. Under such circumstances, in the considered opinion of this Court, since it would appear that the land bearing Survey No.85 is the land which is the most comparable instance amongst the lands, which were subject matter before the Hon'ble Division Bench, therefore, this Court deems it appropriate to fix the market value of the present lands, comparing the value of the land fixed for Survey No.85. Again, it would be required to be mentioned that the Division Bench had granted Rs.5/- per sq. yard as market value of the land and since it appears that a sq. yard is approximately 0.83 sq. mtr., and since the area of the land in the instant case has been measured in sq. yard all along, and since it would appear that an approximate increase of 17% (20% - rounded off) is to be given on Rs.5/- fixed by the Division Bench of this Court, therefore, this Court fixes the value of the land at the rate of Rs.6/- per sq. mtr.
6.13. It would also be required to be stated here that since there is no Page 19 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined differentiating factor as found in the decision of the Reference Court as regards the value of land concerning First Appeal No.1410 of 2019 being valued at approximately paise 25 per sq. mtr., as compared to the land concerning First Appeal No.1409 of 2019 being valued at paise 30 per sq. mtr., therefore, this Court deems it appropriate to fix the market value for both the lands of the present appeals at Rs.6/- per sq. mtr. Having regard to the discussion herein above, the decision of the learned Reference Court is modified to the extent of declaring that the appellants would be entitled to the market value of the land concerning both the First Appeal is fixed at Rs.6/- per sq. mtr.
6.14. Hence, the appellants of First Appeal No.1409 of 2019 would be entitled to an additional compensation of Rs.5.70 per sq. mtr., i.e. Rs.6/- minus paise 30 as awarded by the learned Reference Court and the appellants of First Appeal would be entitled to an additional compensation of Rs.5.80 per sq. mtr., i.e. Rs.6/- minus paise 20 as awarded by the learned Reference Court. Issues No.1 and 2, thus, are answered accordingly.
Issue No.3 :-
7. Having regard to the discussion, observations and findings as noted herein above, it is directed that the appellants of both the First Appeals would be entitled to enhanced compensation with 12% p.a., from the date of Notification under Section 4 of the Act till the date of Notification under Section 6 of the Act. The appellants of First Appeal No.1409 of 2019 is entitled to the enhanced compensation from 21.8.1965 till the date of taking over possession of the land in question i.e. 22.4.1968 with 12% p.a., along with 30% solatium. From 22.4.1968 Page 20 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023 NEUTRAL CITATION C/FA/1409/2019 JUDGMENT DATED: 11/08/2023 undefined up to 29.4.1969 i.e. the first year after taking over possession, the appellants would be entitled to 9% p.a., on the aggregate amount and thereafter 15% p.a., till the date of disbursement.
7.1. Similarly, in First Appeal No.1410 of 2019 the appellants would be entitled to additional amount of interest at the rate of 12% p.a., from 30.1.1969 till the date of taking over the possession with 30% solatium and whereas for one year after the possession had been taken over, the appellants would be entitled to amount of interest at the rate of 9% p.a., on the aggregate amount and thereafter at the rate of 15% p.a., till the date of disbursement. The respondents are directed to deposit the enhanced amount along with all the additions with the learned Reference Court within a period of eight weeks from the date of receipt of this order.
7.2. Both First Appeals are allowed to the aforesaid extent accordingly. Record and Proceedings be transmitted to the learned Trial Court forthwith.
(NIKHIL S. KARIEL,J) V.V.P. PODUVAL/BDSONGARA Page 21 of 21 Downloaded on : Sun Sep 17 01:07:28 IST 2023