Gujarat High Court
Valkubhai Mamaiyabhai vs Deputy Collector Land Acquisition And ... on 9 May, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/MCA/604/2025 ORDER DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR RECALL) NO. 604 of
2025
In
R/FIRST APPEAL NO. 1391 of 2019
With
R/MISC. CIVIL APPLICATION NO. 606 of 2025
In
R/FIRST APPEAL NO. 939 of 2019
With
R/MISC. CIVIL APPLICATION NO. 607 of 2025
In
R/FIRST APPEAL NO. 936 of 2019
With
R/MISC. CIVIL APPLICATION NO. 608 of 2025
In
R/FIRST APPEAL NO. 1388 of 2019
With
R/MISC. CIVIL APPLICATION NO. 611 of 2025
In
R/FIRST APPEAL NO. 1392 of 2019
With
R/MISC. CIVIL APPLICATION NO. 613 of 2025
In
R/FIRST APPEAL NO. 937 of 2019
With
R/MISC. CIVIL APPLICATION NO. 615 of 2025
In
R/FIRST APPEAL NO. 1390 of 2019
With
R/MISC. CIVIL APPLICATION NO. 617 of 2025
In
R/FIRST APPEAL NO. 1389 of 2019
With
R/MISC. CIVIL APPLICATION NO. 635 of 2025
In
R/FIRST APPEAL NO. 938 of 2019
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VALKUBHAI MAMAIYABHAI
Versus
DEPUTY COLLECTOR LAND ACQUISITION AND
REHABILITATION IRRIGATION & ANR.
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NEUTRAL CITATION
C/MCA/604/2025 ORDER DATED: 09/05/2025
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Appearance:
MR SANJAY M AMIN(130) for the Applicant
MR. AKASH CHHAYA, AGP for the Opponent Nos. 1,2
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 09/05/2025
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. The present applications are filed by the original appellants seeking recall of the order dated 9 th September, 2024 passed by this Court in First Appeal no.936 of 2019 and allied matters.
2. We have heard Mr. Sanjay M. Amin, learned advocate for the applicants and Mr. Akash Chhaya, learned AGP, who has appeared on behalf of the respondent - State authorities.
3. At the outset, learned advocate for the applicants has invited our attention to the fact that the appeal was listed for final hearing on 15th July, 2024 and thereafter, the arguments were concluded on 16th July, 2024 and the matter was reserved on same day for judgment. On 6 th September, 2024 the appeal was notified for pronouncement of judgment, Page 2 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined which was postponed to 9th September, 2024 and in the operative order it was pronounced that the Court partly allowed the appeal at the final hearing stage. However, the copy of the aforesaid judgment, uploaded on 16 th January, 2025, reveals that the appeal is dismissed.
4. Noticing the aforesaid submission of the learned advocate for the appellants, we had gone through the record. From the record of the case status, it has transpired that appeal was partly allowed at the final hearing stage. For the reasons assigned in the order dated 9 th September, 2024, we had called-up on the respective parties to address the Court on merits and the matter was reheard with the consent of the respective parties and the R. & P. were called for, which has been received by this Court.
5. Learned advocate for the applicants had mainly submitted that the different exemplars were produced before the Reference Court, which include the exemplar of land acquired at village Bhatavavdi (Exh.31), the sale instances of the non-agriculture plot of village Nana Gujariya (Exh.29), various sale instances (Exhs.40 to 45) vide list produced by the respondent State Authorities at Exh.36. Apart from the Page 3 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined aforesaid sale instances, the respondent State authorities had also produced the map at Exh.46 reflecting the position of the acquired lands as against the aforesaid sale instances. 5.1 Learned advocate had further invited our attention to the findings and reasons recorded by the Reference Court to point-out that as against the market value of the Bagayat land fixed by the Special Land Acquisition Officer @ Rs.770/- per Are and Rs.550/- per Are of Jirayat lands, the Reference Court has awarded additional amount of compensation @ Rs.80/- per sq. mtr. in case of Bagayat land and Rs.85/- per sq. mtr. in case of Jirayat land. He had further pointed-out that the Reference Court has miserably failed to consider the best exemplar produced on record at Exh.29, though of different village of Nana Gujariya without appreciating the fact that in the cross-examination, the witness of the respondent - State authorities has admitted that both the lands of village Mota Gujariya and Nana Gujariya are submerged in the construction of the Dam. He has further pointed-out that both the villages share a common village boundary being adjoining to each other and therefore, by applying principles laid down by the Hon'ble Supreme Court in case of R. Saragapani Page 4 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined (dead) through Lrs. Vs. Special Tahsildar, Kurur - Dindigul Broad Gauge Line reported in (2011) 14 SCC 177, even the valuation of the non-agriculture land of small size plot can be treated as comparative exemplar for the purpose of determination of value of the agriculture land. He had invited our attention to the relevant observations whereby in the facts of the case, the Hon'ble Supreme Court has considered the value of small size non-agriculture land for the purpose of determination of value of the acquired agriculture land by applying 1/3rd deduction to the value of the non- agriculture land.
5.2 Learned advocate for the applicants had further invited our attention to the reasons assigned by this Court by not entertaining the captioned appeal and has submitted that the aforesaid contention has been raised by the applicants as recorded in para-3 of the order dated 9 th September, 2024 passed in the captioned appeal. However, this Court has not entertained the aforesaid submission by holding that the lands of adjoining village being acquired for the same project though being awarded higher compensation cannot be a ground to apply the same rate of compensation in case of Page 5 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined lands acquired from different villages. According to the learned advocate, the aforesaid reasoning of the Court is erroneous and against the principles laid down by this Court in case of Special Land Acquisition Officer Vs. Ramanbhai Haribhai, reported in 2001 (3) GLH 655 and of the Hon'ble Supreme Court in case of Thakersinhbhai Devjibhai reported in AIR SCW 2417.
5.3 Learned advocate for the applicant had further submitted that the Hon'ble Supreme Court has held that when the matter relates to payment of amount of compensation to the land losers and if two views are possible, in order to advance the cause of justice, the Court should always prefer the view, which may fulfill the object of the Act, which is to grant just and proper compensation to the affected landowners, whose lands are acquired for the public purpose. 5.4 Learned advocate had further invited our attention to the reasons assigned by this Court while upholding the approach of the Reference Court in referring to the comparable instances produced on record at Exhs.40 and 41 to be the best exemplar for the purpose of determination of Page 6 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined compensation. Learned advocate had submitted that this Court while passing the order dated 9 th September, 2024 failed to consider the legal position that the evidentiary value of the Land Acquisition Officer's award is in the nature of an offer and it cannot be read as evidence within the meaning of Section 2 of the Evidence Act.
6. This Court had called-upon the learned advocate to take us through the relevant sale instances as relied upon by the Reference Court at Exhs.40 and 41. While referring to the aforesaid documents, learned advocate had submitted that mere production of the photocopy of the sale instances cannot be treated as having been proved to be read as an evidence. He has therefore submitted that the order dated 9 th September, 2024 may kindly be recalled and the appeal preferred by the appellants may be allowed by enhancing the additional amount of compensation by treating the exemplar produced at Exh.29 to be a comparable sale instance.
7. Mr. Akash Chhaya, learned AGP for the respondent - State authorities had supported the findings and reasons assigned by the Reference Court as well as by this Court as recorded in its order dated 9th September, 2024 passed in the Page 7 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined captioned appeal.
8. Having heard the learned advocates appearing for the respective parties, we have re-examined the case by taking into consideration the aforesaid submissions of the learned advocate for the applicants in light of the relevant documents forming part of the original record. As rightly pointed-out by the learned advocate for the applicants, before the Reference Court the original claimants have examined the witness Valkubhai Mamaiyabhai, who is one of the claimants of LRC no.20 of 2005 at Exh.21 along with the documentary evidence. The details of which are reproduced as under :-
~:: Documentary Evidence ::~ Sr. Particular Exh.
no.
True copy of the Sale deed bearing 1 23 Registration no.104 of 2000 True copy of the Sale deed bearing 2 24 Registration no.47 of 2000 True copy of the Sale deed bearing 3 25 Registration no.114 of 2000 True copy of the judgment and award 4 29 passed in LRC no.127 of 2005 (Exh.32) True copy of the judgment and award 5 30 passed in LRC no.127 of 2005 (Exh.26) True copy of the judgment and award 6 31 passed in LRC no.127 of 2005 (Exh.123) Page 8 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined
9. As against the aforesaid evidence produced on record by the original claimants, the respondent State authorities has brought on record the following documentary evidence, the details of which are reproduced as under :-
~:: Documentary Evidence ::~ Sr. Particular Exh.
no.
Photocopy of the sale deed bearing 1 registration no.147 of 1997 of village 40 Mota Gujariya Photocopy of the sale deed bearing 2 registration no.148 of 1997 of village 41 Mota Gujariya Photocopy of the sale deed bearing 3 registration no.382 of 2004 of village 42 Mota Gujariya Photocopy of the sale deed bearing 4 registration no.139 of 2005 of village 43 Mota Gujariya Photocopy of the sale deed bearing 5 registration no.554 of 2003 of village 44 Mota Gujariya Photocopy of the sale deed bearing 6 registration no.87 of 1996 of village 45 Nana Gujariya Copy of the award of LAQ no.32 of 1999 passed by the Special Land Acquisition 7 47 Officer and the copy of the map reflecting the sale instance.
10. Thus, the reference Court, upon appreciation of the Page 9 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined aforesaid sale instances and the reliance placed on the earlier awards passed by the Reference Court, as recorded earlier by us in the order dated 9 th September, 2024 passed in the captioned appeal, the reference Court has discarded the evidence at Exh.31, which was the award passed in the case of Village Bhatavavdi by holding that no evidence is produced by the claimants to establish the distance between two villages i.e. Bhatavavdi and Mota Gujariya. Further, the reference Court has refused to take into consideration the sale deeds produced on record at Exh.29 by noting that the aforesaid sale instances pertains to the small size non-
agriculture plot, which was subject to industrial use and belongs to a different village viz. Nana Gujariya. At the same time, the sale instances produced on record by the claimants at Exhs.23 to 25 has also not been accepted by the Reference Court by noting that the said sale instances pertains to land of village Nana Gujariya and Umariyadi. Thus, the reference Court has mainly focused on the evidence produced by the respondent State authorities. On comparison of the sale instances produced on record from Exhs.40 to 46, the Reference Court has found the sale instance of village Mota Gujariya produced at Exhs.40 and 41 being part of the same Page 10 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined village, to be treated as the best exemplar for the purpose of determination of actual market value of the lands acquired.
11. Noticing the aforesaid findings and reasoning of the reference Court, this Court while passing the order dated 9 th September, 2024 was convinced with the aforesaid findings and reasoning. However, this Court has committed error in not noticing the fact that what was produced on record was merely the true copy of the photocopy of the sale instances, which were relied upon by the Special Land Acquisition Officer while passing the award under Section 11 of the Act.
12. This led us to revisit the evidence of the witness viz. Hemantbhai Dalubhai Patel examined on behalf of the respondent - State Authorities at Exh.37. On close appreciation of the evidence of the aforesaid witness and his cross-examination, applying the principles laid down by this Court in the case of Special Land Acquisition Officer Vs. Ratilal Narsinhbhai Patel reported in 1982 (2) GLR 755 and of the Hon'ble Supreme Court in case of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer reported in (1988) 3 SCC 751, we find that merely because Page 11 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined the true copy of the photocopy of the sale instance has been exhibited, it cannot be read as an evidence within the meaning of Section 2 of the Evidence Act, as the respondent State authorities have failed to prove its contents by examining the witnesses in this regard. Even otherwise as held by the Hon'ble Supreme Court, the Court cannot accept the award of Land Acquisition Officer as an evidence for the purpose of valuation of land unless the same is produced and proved before the Court. Hence, this Court has fell in error while upholding the aforesaid findings and reasons assigned by the reference Court and not entertaining the appeal of the original claimants.
13. This brings us to the issue of determination of the amount of compensation in light of Exh.29 as relied upon by the original claimants. In absence of any comparable sale instance left-out, the only best exemplar available on record is the sale instance produced on record at Exh.29 of adjoining village Nana Gujariya. We have reconsidered the arguments of the learned advocate for the applicants and the findings and reasons assigned by this Court not entertaining the captioned first appeal for the findings and reasons assigned by us, we Page 12 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined still find that the sale instance of the land produced on record at Exh.29 belongs to different village Nana Gujariya. The bare reading of the contents of the aforesaid sale deed clearly goes to suggest that out of 1 Acre of the land, which is 4047 sq. mtr. of land, the sale deed was executed in respect of part of the aforesaid parcel of land i.e. to the extent of 53.34 sq. mtr. as against which the total sale consideration of Rs.43,600/- was agreed. The comparison of date of execution of sale deed indicates that the said sale deed was executed on 14 th March, 2000, whereas the Notification under Section 4 of the Land Acquisition Act declaring the intention to acquire the lands in the present case was issued on 17th/30th August, 2000. Even comparing the date of Section 4 Notification as against the date of sale instances relied upon at Exh.29, there is hardly a difference of six months' time. Thus, we have tried to appreciate the aforesaid sale instance by considering the proximity in the situation of the land as well as the timeline in order to determine the market value of the lands acquired. Admittedly, the sale instance relied upon at Exh.29 pertains to a small size non-agriculture plot subject to industrial use, which is admeasuring 53.34 sq. mtr. only as against the acquired agricultural lands of adjoining village of Mota Page 13 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined Gujariya, the area of such acquired lands varies from 71.26 Are to 639.41 Are. Considering the fact that the aforesaid both the villages share village boundaries and are adjoining to each other and the proximity of distance as can be gathered from the map produced on record at Exh.46, we are inclined to accept the said sale instance at Exh.29 to be treated as the comparable instance for the purpose of determination of the market value of the lands acquired.
Having held so, the issue of determination of the additional amount of compensation is required to be looked into. Considering the principle laid down by the Hon 'ble Supreme Court in case of Thakarsinhbhai Devjibhai (Supra), we are of the view that the distance between the two classes of lands in the facts of the case, may not be derogative for the claim put forward by the claimants, more particularly, in absence of any contradictory material being brought on record by the respondent State Authorities to show that the quality and potentiality of such land is inferior as recorded earlier, no evidence has been brought on record on behalf of the State to establish such facts on record.
14. Noticing the holding of the land owners of the respective Page 14 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined acquired lands, it cannot be said that the sale instance produced on record at Exh.29 can be ignored on the ground of smallness of the land. Again, no evidence has been brought on record to suggest that the distance between the two villages would be derogative to the claim by establishing that the quality and potentiality of the land varied. 2001 (3) GLH Page 655 - Land Acquisition Officer Vs. Ramanbhai Haribhai).
15. Thus, considering the ratio of the judgment of Hon 'ble Supreme Court in case of R. Saragapani (dead) thrugh Lrs. Vs. Specaial Tahsildar, Kurur - Dindigul Broadguage Line reported in (2011) 14 SCC 177, applying the principle of 1/3rd deduction in case of sale exemplar of non-agriculture land, the market value of the land of village Nana Gujariya as established on record at Exh.29, whereby the land was sold for an amount of Rs.43,200/- of plot area of 53.34 sq. mtr., which is Rs.810/- per sq. mtr., we are of the view that the original claimants shall be entitled to the 1/3 rd of the aforesaid amount which comes to Rs.268.00 ps. per sq. mtr.
16. For the reasons recorded, we hereby allow the present Page 15 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined applications and recall the order dated 9 th September, 2024 passed in First Appeal no.1391 of 2019 and allied matters. The First Appeal stands partly allowed to the extent of enhancing additional compensation by applying 1/3 rd deduction to the value of the sale instance of Exh.29. Hence, market value of the land is determined at the rate of Rs.268/- per sq. mtr. as claimed.
17. For the foregoing reasons, the original claimants are entitled to all statutory benefits as awarded by the Reference Court on such entire amount of compensation. In light of the fact that the appeal has been allowed, the respondent State Authorities are directed to deposit the enhanced amount of compensation after deducting the amount received towards award passed under Section 11 of the Act and additional amount received pursuant to the award passed by the Reference Court. The aforesaid amount is directed to be deposited with the Reference Court preferably within a period of three months from the date of receipt of this order. In case of amount being deposited, and on appropriate orders being passed by the Reference Court with regard to disbursement of amount of compensation, the Registry shall verify the Court Page 16 of 17 Uploaded by AMAR RATHOD(HC01074) on Thu May 15 2025 Downloaded on : Thu May 15 22:16:19 IST 2025 NEUTRAL CITATION C/MCA/604/2025 ORDER DATED: 09/05/2025 undefined fees as against the amount of compensation awarded before proceeding with the disbursement of the award amount in favour of the claimants. With these observations, present applications stand allowed. R. & P. be sent back forthwith.
(BIREN VAISHNAV, J.) (NISHA M. THAKORE, J.) AMAR RATHOD...
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