Gujarat High Court
Spl Land Acquisition Officer vs Rajput Chandanji Bhavanji on 18 December, 2023
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi, Samir J. Dave
NEUTRAL CITATION
C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1520 of 2011
With
R/FIRST APPEAL NO. 5629 of 2019
With
R/FIRST APPEAL NO. 5630 of 2019
With
R/FIRST APPEAL NO. 5631 of 2019
With
R/FIRST APPEAL NO. 5632 of 2019
With
R/FIRST APPEAL NO. 5633 of 2019
With
R/FIRST APPEAL NO. 5634 of 2019
With
R/FIRST APPEAL NO. 5635 of 2019
With
R/FIRST APPEAL NO. 5636 of 2019
With
R/FIRST APPEAL NO. 5637 of 2019
With
R/FIRST APPEAL NO. 5638 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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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 or any order made thereunder ?
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Page 1 of 32
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NEUTRAL CITATION
C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023
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SPL LAND ACQUISITION OFFICER & 1 other(s)
Versus
RAJPUT CHANDANJI BHAVANJI,
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APPEARANCE IN FIRST APPEAL NO.1520 OF 2011:
DR. POOJA ASHAR, ASST. GOVERNMENT PLEADER for the
Appellant(s) No. 1,2
MR AV PRAJAPATI(672) for the Defendant(s) No. 1
APPEARANCE IN FIRST APPEAL NOS.5629 TO 5638 OF 2019:
MR AV PRAJAPATI(672) for the APPELLANT(S)
DR. POOJA ASHAR, ASST. GOVERNMENT PLEADER FOR
DEFENDANT(S)
=====================================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 18/12/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI) [1] All these appeals filed under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act, 1894") read with Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") challenging the judgment and award passed by the Additional District and Sessions Judge (4th Fast Track Judge), Mahesana as well as Additional Senior Civil Judge, Mahesana, though in different Page 2 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined Land Acquisition Reference Cases, since it pertains to acquisition of agricultural lands of original claimants situated at Village - Dhamanva, Taluka - Visnagar, District - Mahesana, more or less having same date of Section 4 Notification, they are proposed to be disposed of by this common judgment and order.
[2] So far as First Appeal No.1520 of 2011 is concerned, it is filed by the State, being aggrieved by judgment and award passed by the Additional District and Sessions Judge (4th Fast Track Judge), Mahesana in Land Acquisition Reference No.313 of 2008, whereby the Reference filed by the respondent - original claimant therein challenging the determination of market value of his acquired land by the Land Acquisition Officer, though stated to be awarding compensation at the rate of Rs.13 per sq. mtr. (verifying it from the award passed by the Land Acquisition Officer, he awarded Rs.9.90 per sq. mtr.) of the agricultural land acquired of the respondent - claimant, claiming additional compensation Page 3 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined and the learned Judge enhanced it to Rs.230 per sq. mtr. as additional compensation bringing the market value of the acquired land to be Rs.243/- per sq. mtr.
[3] In First Appeal No.1520 of 2011, the lands of various Survey / Block numbers were notified to be acquired vide Notification dated 03.07.2004, whereby lands of the respondent - claimant in that appeal along with other claimants came to be acquired. Declaration under Section 6 of "the Act, 1894" came to be published in the Gazette on 18.01.2005. Land Acquisition Officer, pursuant to the acquisition proceedings under Land Acquisition Case No.17 of 2004, after considering various aspects, more particularly considering sale instance, out of very acquired land of Survey / Block Nos.270, 271 and 273 (paiki), 13128 sq. mtrs. of irrigated land came to be sold by one of the claimants by registered sale deed dated 20.02.2002 for a consideration of Rs.1,05,000/-, wherein part land of Survey / Block No.273 sold under the said sale instance. From remaining land, again part Page 4 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined of land of Survey / Block No.273 came to be acquired, whereas Survey / Block Nos.270 and 271 are adjoining lands to the land sold and it is also proposed to be acquired under the very same Section 4 Notification, though in the month of July, 2004. For determining the market value of the land, Land Acquisition Officer considered the said sale instance out of very acquired land nearly before two and half years prior to Section 4 Notification in this case. However, considering time gap between sale out of acquired land and Section 4 Notification in this case, Land Acquisition Officer increased the market value determined in the sale deed to the extent of 12% for two years and thus, he determined the market value of the land acquired at the rate of Rs.9.90 per sq. mtr.
[4] The Land Acquisition Officer declared his award determining the said market value of the acquired land in Land Acquisition Case No.17 of 2004 dated 28.02.2005. Though, the impugned judgment and award in First Appeal No.1520 of 2011 refers the date of Land Acquisition Officer Page 5 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined award to be 24.09.2004, appears to be incorrect as in the said village there were different 4 land acquisition cases, whereby different parcels of land came to be acquired and 4 different awards came to be passed by the Land Acquisition Officer in respect thereof. Though records and proceedings does not contain copy of award passed under Section 11 of "the Act, 1894" by the Land Acquisition Officer, learned Assistant Government Pleader provided the copy thereof and which is not disputed by the learned advocate representing the respondent - claimant herein.
[5] Lands of Survey / Block Nos.230, 270 (paiki), 271 (paiki), 273 (paiki), 274, 232, 276, 231 and 275 were notified under Section 4 of "the Act, 1894" to be acquired for the public purpose for construction of Sujlam Suflam Spreading Canal, chain No.194.08 to 194.60 kilometers. [6] From the judgment and award impugned in this First Appeal No.1520 of 2011, it appears that claimant therein filed Land Reference Case No.313 of 2008, whereas other Page 6 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined claimants of different lands notified under the same Notification filed Reference Cases being LAR Nos.782 to 788 of 2009 (Old Nos. being LAR Nos.718 to 724 of 2004). However, aggrieved by judgment and award rendered in LAR Nos. 782 to 788 of 2009, two of the claimants (LAR Nos. 783 and 784 of 2009) preferred First Appeal Nos.5634 and 5635 of 2019 respectively in delay, which after condonation of it came to be admitted by the Court. Thus, lands notified for acquisition under Land Acquisition Case No.17 of 2004 before the Land Acquisition Officer, two of the claimants have preferred aforesaid appeal being First Appeal Nos. 5634 and 5635 of 2019 for enhancement of the compensation as learned Additional Senior Civil Judge, Mahesana, by his impugned judgment and award dated 09.04.2012 in LAR Nos. 782 to 788 of 2009, awarded additional compensation of Rs.97.10 per sq. mtr., bringing market value of the land to be Rs.107 per sq. mtr., for enhancement of it, if not at a higher rate at least at the rate of 243 per sq. mtrs, as granted by the claimants of the very same Section 4 Notification in LAR No.313 of 2008, Page 7 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined which was determined by the learned Reference Court prior to the decision impugned in these two appeals. [7] Lands of very same village again notified to be acquired vide Notification under Section 4 of "the Act, 1894"
dated June, 2004 (as exact date is not coming out from the award), the Land Acquisition Officer, after considering the objections as also various documents, determined the market price for the lands under acquisition of Survey / Block Nos.
306, 309(paiki), 307 (paiki), 310 (paiki), 314 (paiki), 315, 313 and 321 to be Rs.9.90 per sq. mtrs of the very same village - Dhamanva under Land Acquisition Case No.18 of 2004, by his award under Section 11 of "the Act, 1894" dated 27.9.2004. Being aggrieved by the award passed by the Land Acquisition Officer, original claimants preferred Reference before the Court and the learned 4th Additional Senior Civil Judge, Mahesana, vide his judgment and order dated 09.04.2012 passed in LAR Nos.654 to 662 of 2009, awarded Rs.97.10 as additional compensation bringing market price for the land acquired to be Page 8 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined Rs.107 per sq. mtr. Being aggrieved by said judgment and award passed by the Reference Court, the claimants have preferred different appeals being Appeal Nos.1466 of 2022, 5632 of 2019, 1464 of 2022, 1422 of 2022, 5633 of 2022, 1476 of 2022, 5630 of 2019 and 5631 of 2019, out of which, number of appeals filed in the year 2022 were not provided to the Court, while hearing the connected appeal, those appeals could not be ordered to be tagged and notified for the purpose of hearing before the Court. However, the appeals filed in the year 2019 have been notified along with First Appeal No.1520 of 2011, as ordered by this Court.
[8] Again lands of Survey / Block Nos.328, 327 and 329 notified to be acquired of the very same Village- Dhamanva for the very same purpose, for which, Notification under Section 4 of "the Act, 1894" came to be issued in June, 2004 (though no exact date is given therein), which was numbered as Land Acquisition Case No.19 of 2004 before the Land Acquisition Officer. That, the Land Acquisition Officer, after considering the objections and various aspects, again Page 9 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined determined the market value of the land under acquisition in that case at the rate of Rs.9.90 per sq. mtr. vide his award dated 27.09.2004. The claimants, being aggrieved by the award passed by the Land Acquisition Officer, made Reference to the concerned Court for the purpose of enhancement of compensation for the lands acquired. The Reference Cases filed by the claimants therein came to be numbered as LAR Nos.663 to 665 of 2009 and the learned 4 th Additional Senior Civil Judge, Mahesana, vide judgment and award dated 09.04.2012, ordered to pay additional compensation at the rate of Rs.97.10 per sq. mtr. to the claimants therein bringing market price of the lands acquired to be Rs.107 per sq. mtr. Being aggrieved thereby, the claimants preferred First Appeal Nos.1426 of 2022, 5629 of 2019 and 1433 of 2022. As stated hereinabove, number of the appeals preferred by the claimants in the year 2022 were not provided to the Court and therefore, they were not ordered to be notified for hearing along with present group of appeals. However, out of three appeals preferred by the claimants, one was filed in the year 2019 Page 10 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined being First Appeal No.5629 of 2019 and that was ordered to be heard along with First Appeal No.1520 of 2011. [9] Again lands of very same village bearing Survey / Block Nos.362(paiki), 363 and 366 were notified to be acquired under Section 4 Notification and Notification under Section 4 came to be issued in the month of June, 2004 (though no exact date is mentioned in the award) for the very same purpose and of the very same village under Land Acquisition Case No.20 of 2004. After considering the objections and following procedure prescribed under "the Act, 1894", the Land Acquisition Officer determined the compensation for the lands acquired at the rate of Rs.9.90 per sq. mtr. Being aggrieved by the same, the claimants therein filed Reference under Section 18 of "the Act, 1894", which were numbered as Land Acquisition Reference Nos.2093 to 2095 of 2009 for enhancement of the compensation. The learned 4 th Additional Senior Civil Judge, Mahesana, vide his judgment and award dated 09.04.2012, determined the additional compensation at Page 11 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined the rate of Rs.97.10 per sq. mtr, bringing the market price for the lands acquired at the rate of Rs.107 per sq. mtrs. Being aggrieved by the same, again for the purpose of enhancement of the compensation, the claimants therein preferred First Appeal Nos.5636 to 5638 of 2019, which have been ordered to be notified and heard with the main appeal being First Appeal No.1520 of 2011.
[10] Thus, for the lands of Village - Dhamanva, Taluka
- Visnagar, though notified for the purpose of acquisition on different dates, the gap in between two Notifications appears to be very marginal (in few days) and it has been acquired for the very same purpose; it would be profitable to determine all these appeals together. However, the appeals preferred by some of the claimants in the year 2022, could not be notified for want of information supplied by the learned advocate representing the claimants, this Court proposes to determine the aforesaid appeals notified before it. Page 12 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023
NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined [11] Since Mr. Ashok Prajapati, learned advocate appears for the original claimants in all these group of appeals, either he may be respondent in First Appeal No.1520 of 2011 or appellant in other appeals, he is heard at length. [12] So far as First Appeal No.1520 of 2011 is concerned, according to the submission of learned advocate for the respondent - claimant, it was first decided by the Division Bench of this Court vide judgment and order dated 03.08.2015, however, the respondent - claimant, being aggrieved and dissatisfied with the same, filed Special Leave Petition (Civil) Diary No.42443 of 2019 before the Supreme Court. However, vide judgment dated 10.02.2020, the Supreme Court remitted the matter to this Court to decide afresh in accordance with law, as agreed by the parties, whilst setting aside the aforesaid judgment and order of High Court. Therefore, the said appeal is being heard afresh in accordance with law. [13] Mr. Ashok Prajapati, learned advocate for the respondent - claimant therein vehemently submitted that the Page 13 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined compensation awarded by the Land Acquisition Officer as also enhanced by the Reference Court is inadequate and doesn't represent the true and correct market value of the land. Therefore, not only the appeal filed by the State challenging the impugned judgment and award in First Appeal No.1520 of 11 is required to be modified and also compensation is required to be enhanced to the extent of Rs.500 per sq. mtr. as it has been done in the cases of acquisition of lands of other nearby villages. He has vehemently submitted that appeals preferred by the claimants is also required to be allowed and compensation therein is also required to be enhanced. He has vehemently submitted that not only First Appeal No.1520 of 2011 is required to be dismissed, rest of the appeals are required to be allowed and compensation if not enhanced at the rate of Rs.500 per sq. mtr, it should be at par with the compensation awarded in the award for the lands of very same village, which is impugned in First Appeal No.1520 of 2011 at the rate of Rs.243 per sq. mtr. For claiming enhanced compensation, he has relied on the judgment passed Page 14 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined by this Court dated 23.08.2019 in First Appeal Nos.2513 to 2533 of 2011, wherein compensation at the rate of Rs.500 per sq. mtr. came to be awarded for the lands acquired of Village
- Vasai for the very public purpose of Sujlam Suflam Spreading Canal vide Notification dated 03.07.2004 i.e. of the nearby date in this case. According to his submission, Village
- Vasai is also, if not adjoining, a nearby village and considering permissible deduction about the situation of land and the advantages / shortcomings available to both of the villages, suitable reduction/increase be permitted and appeals be allowed.
[14] He has also relied on a decision rendered by the Division Bench of this Court vide judgment dated 19.03.2021 in First Appeal Nos. 1796 to 1802 of 2017, 1836 to 1843 of 2017, 1846 to 1858 of 2017 and 2850 of 2017, submitted that this Court, despite the market value determined to be Rs.107 per sq. mtr. for the lands of Village - Dhadhusan, Taluka - Visnagar for the very same date of Section 4 Notification to be Page 15 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined 03.07.2004 and lands acquired for the very same purpose, enhanced the compensation and determined the market price of the lands to be Rs.500 per sq. mtr. and even for village - Dhadhusan, which is also nearby village to Village - Dhamanva, lands of which are acquired in the present case. [15] Relying on the decision in the case of Mehrawal Khewaji Trust (Registered), Faridkot and others Versus State of Punjab and others reported in (2012) 5 SCC 432, more particularly para -17 thereof, it is submitted that as per the general rule, highest of the exemplars has to be considered and accepted, when the land is being compulsorily acquired 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. He has also relied on a decision in the case of Union of India Vs. Harinder Pal Singh & Ors reported in (2005) 12 SCC 564, for a proposition that for acquisition of land in five different villages, sale instance in adjoining village taking into Page 16 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined consideration similarity of the acquired lands abandoning the belting system and awarding compensation at uniform rate irrespective of their nature or quality approved by the Supreme Court and therefore, judgments and orders of this Court referred to hereinabove in the case of Village - Dhadhusan as also Vasai, being different villages, the compensation awarded therein being Rs.500 per sq. mtr. be awarded to the claimants and appeal be allowed to that extent preferred by the claimants and appeal preferred by the State for reduction of compensation be rejected. He has further, relying on a decision in the case of Thakarsibhai Devjibhai and Others Versus Executive Engineer, Gujarat and Another reported in (2001) 9 SCC 584, submitted that mere distance between two acquired lands of different villages, if similar in quality including its potentiality, should not deter the Court from awarding same compensation, even if, distance is of to be 5 km. in between them.
[16] He has further submitted that the judgments and orders of this Court, which are relied on by him for seeking Page 17 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined enhancement of compensation to the tune of Rs.500 per sq. mtr., since appeal is preferred before the Supreme Court, hearing of these appeals is requested to be deferred. No other contentions are raised by him. On the aforesaid contentions, he submitted that the appeal preferred by the State be dismissed and appeals preferred by the claimants be allowed. [17] As against that, learned Assistant Government Pleader Dr. Pooja Ashar, vehemently submitted that there cannot be any two different rate of compensation for the lands acquired of very same village, that too nearby, one determining it at the rate of Rs.243 per sq. mtr. and for others at the rate of Rs.107 per sq. mtr., as determined by the Court. It is submitted by the learned AGP that there is no evidence led by the claimants to show that lands of Village - Vasai or Dhadhusan are similar in every respect and they are adjoining. As such, those awards were never placed for consideration before the Reference Court and here also it has not been brought on record by recognized mode, they may not be considered for that reason also. However, it is further Page 18 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined submitted that those two villages, determination of market value therein by the Reference Court or the High Court relied on, fall in a different taluka at all, though for the very same public purpose as it is a public purpose of constructing canal passing through so many villages, Section 4 Notification maybe of the very same day, a market price determined at the entry point of the canal and to the end point of the canal, which is running into kilometers, maybe Notification under Section 4 is published on the very same day for a whole stretch, no one compensation can be awarded for the different villages for the land situated in different Talukas or Districts. [18] It is further submitted that reliance placed on the decision rendered in First Appeal Nos.2513 to 2533 of 2011 is misplaced as judgment rendered in said appeals is stayed by an order dated 03.07.2023 by the Supreme Court and therefore, reliance placed by the claimants praying for compensation at the rate of Rs.500 per sq. mtr., which is awarded for Village - Vasai, Taluka - Vijapur, is misplaced as it is already stayed. Reliance placed on the decision of this Court in First Appeal Page 19 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined Nos.1796 to 1802 of 2017 and other connected appeals also cannot be relied on as the operation of the said judgment and order dated 19.03.2021 is ordered to be stayed by the Supreme Court in Special Leave Petition (Civil) No.11671 to 11699 of 2023, where claimants have also preferred cross Special Leave Petition (Civil) No.14749 to 14823 of 2023. [19] Referring to the deposition of the claimant at Exhibit -10, it is submitted that Villages - Dhamanva and Padhariya are having common boundary and though claimant stays at Village - Padhariya, he owns land at Village - Dhamanva. As such, in the deposition correct Land Acquisition Case No.17 of 2004 is referred and date of Section 4 Notification is referred to be 24.06.2004. Therefore, it is submitted that what is recorded in the impugned judgment and award with regard to date of Section 4 Notification, all the lands of Village - Dhamanva have come to be acquired, maybe under different Land Acquisition Cases, date of Section 4 Notification in all these appeals appears to be same. It is further submitted that in the deposition before the Court, the Page 20 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined respondent - claimant in First Appeal No.1520 of 2011 has stated about similarity of lands in between Village - Padhariya and Dhamanva and nothing more. It is further submitted that land acquired is at least 4 kilometer interior to the public road and there is no industrial area even surrounding village, the lands acquired have no even non-agricultural potentiality when claimants have not claimed compensation based thereon, learned Judge could not have enhanced the compensation. [20] Drawing attention of the Court to the impugned judgment and award, it is submitted that the claimants have relied on previous awards at Exhibits - 15, 16 and 27, rendered in Land Acquisition Reference Nos. 44 to 59 of 2008 in respect of Village - Dharusana, Land Acquisition Reference Nos.65 to 70 of 2008 in respect of lands acquired of Village - Kherva and Land Acquisition Reference Nos.329 to 332 of 2008 in respect of Village - Padhariya, whereby Reference Court determined the market price for the lands acquired at the rate of Rs.257, 271 and 243 per sq. mtr. respectively. However, according to submission of learned AGP, since lands of Village Page 21 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined
- Padhariya and lands of Village - Dhamanva, which are acquired, are having common boundary even according to the submission of claimants, the learned Judge relied on previous award Exhibit - 27 rendered in Land Acquisition Reference No.329 to 332 of 2008 arising from the acquisition of lands of Village - Padhariya, as it was also having nearly similar date of Section 4 Notification being 03.07.2004. Market value determined therein is awarded by the learned Judge relying on the same.
[21] Drawing attention of the Court to the judgment of this Court rendered in First Appeal Nos.1545 to 1557 of 2010 dated 17.03.2011, it is submitted that previous award passed by the Reference Court Exhibit -27, which is relied on by the claimants, came to be challenged by the State and this Court allowed the appeal partly and reduced the compensation determining additional compensation to be Rs.107 per sq. mtr. for the lands acquired of Village - Padhariya. Not only that, according to her submission, even belated challenge to the same before the Supreme Court by the claimants therein came Page 22 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined to be dismissed, not only on the ground of delay but also on merits as it is clear from the order rendered in Special Leave Petition (Civil) Diary No.27005 of 2019. Learned AGP has also submitted that even the judgment rendered in First Appeal Nos.761 to 765 of 2011, which is relied on by this Court in First Appeal No.1545 of 2010 for determination of market value of land of village - Padhariya, challenge to the same by the claimants has also met with the very same fate. She has further submitted that mere pendency of proceedings before the Supreme Court on the previous orders of this Court relied on by the present claimant, though no proper procedure is followed to bring on record, is no ground to defer the hearing which is already concluded, more particularly, when those judgments and orders have been stayed by the Supreme Court and appeals are pending, they cannot be pressed into service by the claimant. Therefore, it is submitted that appeal filed by the State being First Appeal No.1520 of 2011 be partly allowed and compensation be reduced bringing the market value of the land to be Rs.120 per sq. mtr. as it has been done by this Page 23 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined Court and even confirmed by the Supreme Court. She has further submitted that since the appeals preferred by the original claimants, though belatedly, having no scope for further enhancement as the Reference Court has already awarded additional compensation of Rs.107 over and above the compensation awarded by the Land Acquisition Officer, those appeals preferred by the claimants be dismissed. [22] Having heard the learned advocates appearing for the parties and going through the impugned judgments and awards as also records and proceedings and the precedents relied on it, this Court is called upon to determine the market value of the lands of Village - Dhamanva, which have been acquired for the public purpose of construction of Sujlam Suflam Spreading Canal, for which, Section 4 Notification has come to be issued on 24.06.2004 / 03.07.2004. [23] Examining the impugned judgment and award in First Appeal No.1520 of 2011, it is very clear that claimant himself has relied on a previous award vide Exhibit - 27, being judgment and award in Land Acquisition Reference Page 24 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined Nos.329 to 332 of 2008 in respect of lands acquired of Village
- Padhariya, which is claimed to be adjoining to Village - Dhamanva and date of Section 4 Notification is also similar, that can be considered to be a reliable exemplar for determination of the market value of the lands acquired of Village - Dhamanva. So long as under the said judgment and award, market value of the lands was determined at the rate of Rs.243 per sq. mtr, it was relied by the claimants as also by the learned Judge therein and an award came to be passed in Land Reference Case No.313 of 2008, which is determined on 31.03.2009. However, when appeal came to be filed challenging the said impugned judgment and award and compensation is reduced, when the previous award relied on at Exhibit -27 rendered in Land Acquisition Reference Nos.329 to 332 of 2008 by way of First Appeal No.1545 to 1548 of 2008, it came to be reduced awarding additional compensation at the rate of Rs.107 per sq. mtr, the claimants started singing different tune in these appeals.
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NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined [24] First of all considering the previous award Exhibit - 27 passed in respect of Village - Padhariya, determining the market price of the land under acquisition as on 03.07.2004 being date of Section 4 Notification, final market value of the land is determined by the High Court to be Rs.120 per sq. mtr. and the said order is also confirmed by the Supreme Court, that too, in an appeal filed at the instance of claimants dismissed, not only on the ground of delay but on merit as well, there is no reason to delve deep into the case. Hence, impugned judgment and award passed in Land Acquisition Reference No.313 of 2008 against which First Appeal No.1520 of 2011 is filed, is required to be allowed and compensation is required to be reduced to that extent.
[25] However, considering the submissions of learned advocate for the claimants who pray for enhancement of compensation based on other awards as referred to hereinabove in the case of Village - Dhadhusan as also Vasai, not only situated in different talukas, those judgments and orders passed by this Court have come to be stayed by the Supreme Court, Page 26 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined the claimants cannot rely on the same for determination of market value of the lands under acquisition. Not only that, those judgments and awards have not been brought on record as per permissible mode. Despite the same, when those previous awards even rendered by this Court determining the higher compensation, of course four different villages which are far way from the land under consideration and no case pleaded in the pleadings or the evidence led before the Reference Court, when operation of those judgments and orders is stayed by the Supreme Court, it is of no help to the claimants.
[26] Furthermore, if the award passed by the Land Acquisition Officer is seen, he determined the market value of the lands under acquisition based on best exemplar being sale deed itself, that too, of the part of very acquired land, which came to be sold by one of the claimants nearly two and a half years prior to date of Section 4 Notification in the present cases and considering it even 12% increase for nearly 2 years in the market value of the lands added to the sell price by the Page 27 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined Land Acquisition Officer, which comes to Rs.9.90 per sq. mtr., it requires no further inquiry into the determination of market value. As coming out from the award, lands of Survey / Block Nos. 270, 271 and 273 (paiki), admeasuring 13128 sq. mtrs of irrigated land, came to be sold by registered sale deed dated 20.02.2002 for an amount of Rs.1,05,000/-. As such, said sale deed has not been brought on record, though in view of Section 51A of "the Act, 1894", production of certified copy of sale deed even without examining vendor or vendee would be admissible in evidence. Even determination of market value of the lands under acquisition cannot go beyond Rs.10 per sq. mtr. and it has already been awarded Rs.107 per sq. mtr additional, there is no scope left for any interference, that too, in absence of appeal preferred by the State in respect of judgments and awards which are challenged by the claimants for the purpose of enhancement of compensation. However, we have neither relied on value shown in the sale deed nor award passed by Land Acquisition Officer is taken into consideration on that aspect for determination of these appeals. Page 28 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023
NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined [27] Reliance placed on the decision of the Supreme Court by the learned advocate for the claimants, there is no quarrel on the principle enunciated therein, however the said decisions are not applicable in the facts and evidence brought before the Court by the claimants in this case. Reliance placed in the case of Mehrawal Khewaji Trust (Registered), Faridkot and others (Supra), precedent that highest of exemplar is to be considered in the cases of more than one sale transactions which is not the case here. At the same time, there is not the case here that for the lands under acquisition of very Village - Padhariya, more than one previous awards are before the Court, that too, of the same date of Section 4 Notification so as to consider even highest value of exemplar. The decision in the case of Union of India Vs. Harinder Pal Singh & Ors. (Supra) relied on is also of no help to the claimants for the simple reason that if lands of five different villages contiguous in nature and having all the similar advantages, the comparable sales method adopted therein for determination of Page 29 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined market value at a uniform rate may be approved by the Court. Reliance placed on the decision in the case of Thakarsibhai Devjibhai and Others (Supra) is also no help to the claimants for the simple reason that for the quality and potentiality of the land acquired, there is no evidence led before the Court so as to claim compensation based on previous award in the case of far away other villages of different Talukas and therefore, there is no quarrel with regard to principle enunciated therein. Therefore, the said judgment cannot be pressed into service by the claimants for seeking higher compensation. [28] However, in the present case there are no sale instances, despite availability, that too, of the acquired lands of one of the claimants i.e. claimant of First Appeal No.5634 of 2019 produced before the Court for the determination of the market value of the lands under acquisition. At the same time, previous award passed by the Reference Court pressed into service by claimants and relied on by the learned Judge for determination of market value came to be interfered with by Page 30 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined the higher forum and compensation is reduced and if that compensation is awarded by the Reference Court, coupled with the fact that the said judgment rendered in Appeal by the High Court is even confirmed on merit by the Supreme Court, we see no reason to interfere with the appeals preferred by the claimants being First Appeal Nos.5629 to 5638 of 2019. However, with a view to see the uniformity in the market price of the lands under acquisition as on the date of Section 4 Notification in a previous award relied on by the High Court, a market value is determined at the rate of Rs.120 per sq. mtr., the additional compensation is required to be suitably modified so as to bring in conformity with market price of Rs.120 per sq. mtr.
[29] The appeals being First Appeal Nos.5629 to 5638 of 2019, therefore, partly allowed to the extent that instead of Rs.97.10 to be paid to the claimants as additional compensation, the respondent - State is hereby directed to pay additional compensation at the rate of Rs.110.10 per sq. mtr Page 31 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023 NEUTRAL CITATION C/FA/1520/2011 CAV JUDGMENT DATED: 18/12/2023 undefined with permissible statutory benefits under the law. No other part of the judgment and award is interfered with except stated above. Difference of market price determined hereinabove is required to be paid with statutory benefits since additional compensation at the rate of Rs.97.10 per sq. mtr. is deposited, acquiring body is required to deposit only the difference as determined hereinabove.
[30] However, we allow the appeal being First Appeal No.1520 of 2011 to the extent that market value of the lands under acquisition would be Rs.120 per sq. mtr. of Village - Dhamanva as on the date of Section 4 Notification to be 26.04.2004 /03.07.2004. If any higher amount is paid than the market value determined by this Court, the claimants are directed to refund the same within a period of three months from today.
(UMESH A. TRIVEDI, J.) (SAMIR J. DAVE,J.) Lalji Desai Page 32 of 32 Downloaded on : Mon Dec 18 20:51:01 IST 2023