Lh Of Patel Kodarbhai Virambhai vs State Of Gujarat
2021 Latest Caselaw 18442 Guj

      C/FA/3782/2021                                    ORDER DATED: 15/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 3782 of 2021

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                       LH OF PATEL KODARBHAI VIRAMBHAI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR MANISH S SHAH(5859) for the Appellant(s) No. 1
MR MANRAJ BAROT, AGP Defendant(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                                Date : 15/12/2021
                                 ORAL ORDER

1. Heard Mr.MS Shah, learned advocate for the appelant and Mr.Manraj Barot, learned advocate for the respondents.

2. Admit. Mr.Manraj Barot, learned AGP waives service of notice of admission on behalf of respondents.

3. The appeal is taken up for hearing forthwith as the issue involved in the appeal is covered by the decision of Co-ordinate Bench of this Court.

4. The present appeal is filed under Section 54 of the Land Acquisition Act, 1854 read with Section 96 of the Code of Civil Procedure challenging the legality and validity of the impugned judgment and decree passedn Land Reference Case No.789 of 2010 passed by the learned Principal Senior Civil Judge, Modasa.

C/FA/3782/2021 ORDER DATED: 15/12/2021

5. Mr.Manish Shah, learned advocate for the appellant submits that the Co-ordinate Bench of this Court in First Appeal No.483 of 2019 on 1.2.2019 has enhanced the compensation in respect of land reference Case No.781 of 2010, which was decided along with the Reference Case No.781 of 1010 and other allied Reference Case by common judgment and order. He, therefore, urges that the present appeal is squarely covered by the decision of the Co-ordinate Bench of this Court. Hence, the same may be disposed of accordingly.

6. Mr.Manraj Barot, learned AGP has supported the impugned judgment and order. He submits that the Reference Court has examined the issue and passsed the order after proper application of mind. He, therefore, submits that the impugned judgment and order does not warrant interference.

7. In this appeal, the Co-ordinate Bench of this Court has passed the order in First Appeal No.483 of 2019 on 1.2.2019 in respect of Land Reference Case No.781 of 2010 which was one of the matters of the group decided along with Land Reference Case No.789 of 2010. The judgment is reproduced in its entirety as under:

"1. The present appeal is filed under Section 54 of the Land Acquisition Act, 1854 read with Section 96 of the Code of Civil Procedure challenging the legality and validity of the impugned judgment and decree passed below Exhibit 57 in Land Reference Case No.781 of 2010

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passed by the learned Principal Senior Civil Judge, Modasa.

2. The case of the appellant is that the land belonging to the appellant of Village Aakrund, Taluka Dhansura, came to be acquired under the provisions of the Land Acquisition Act, (hereinafter referred to as the "Act") for public purpose of 'Sujlam Safalam Spreading Canal' and in that context, a Notification under Section 4 of the Act came to be issued on 22.11.2004 and declaration under Section 6 of the Act also made to be published on 11.03.2005. The land acquisition officer declared an award on 29.06.2005 awarding compensation for an amount of Rs.8/- per sq.mtr. i.e. Rs.800/- per Are, which was found to be very meager. As a result of this, the land references along with other land owners came to be submitted by the present appellant under Section 18 of the Act and the relevant reference of the present appellant came to be registered as LAR No. 781 of 2010 for claiming an amount of Rs.492/ per sq.mtr. The Reference Court after examining the material on record was pleased to enhance the amount of compensation and ordered to pay as per the rate of Rs.125/ per sq.mtr., by way of additional compensation and thereby, the present appellant's case is also decided by granting the aforesaid amount by the impugned award dated 31.03.2016 and it is this impugned award which is made the subject matter of the present first appeal before this Court.

3. Learned advocate Mr. Manish Shah appearing on behalf of the appellant - original claimant has submitted that the lands which have been acquired is a nearby place of Village Khilodiya, in which First Appeals have been preferred against the original award and the said appeals were registered as First Appeal No. 1334 of 2015 to First Appeal No. 1338 of 2015 wherein, the cases were remanded back to reconsider the cases based on the award which has been passed in adjacent villages. As a result of this, the remand case was then considered and the appellant had relied upon the award previously passed in LAR No. 831 of 2010 and by producing the same before the Reference Court, it was contended that Village Khilodiya is a nearby place just 3 kms., away from the acquired land and against the said order, in past with respect to that land, the Government has not preferred any appeal further. Learned advocate Mr. Shah has further relied upon the decision of the Division Bench of this Court delivered in First Appeal No. 946 of 2014 and allied matters and has submitted that looking to the proximity of the area, same amount is to be awarded in case of the present appellant also. It was pointed out that the land in question has been acquired for this very object for which other adjacent

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land is acquired and it has been pointed out that the judgment and award dated 13.10.2014, this Court has enhanced the amount of compensation to pay Rs.210/- per sq.mtr., While canvassing the submission, learned advocate Mr. Shah has further submitted that in so far as the lands which are situated in village Aakrund 5 is concerned, it is the fast developing area, surrounded by educational institution, surrounded by Agricultural Produce Market Committee and there is a huge quarry mining operation in Village Dhansura and Vadagam. Hence, the land which has been cquired has got its own significance and potential value. With respect to Village Khilodiya, the amount of compensation is determined atRs.204/- for non irrigated land and this amount has not been challenged by the respondent - State and, therefore, since the land belonging to the appellant is also adjacent, there is hardly any reason to deviate.

3.1. Learned advocate Mr. Shah has further relied upon the decision dated 11.09.2018 passed in First Appeal No. 3276 of 2018 and has pointed out that relying upon earlier decision, even the co-ordinate Bench has also considered the request and enhanced the compensation and as such by applying the principle of sameness, the same order be passed which has been passed by the coordinate Bench of this Court and by producing the xerox copy of the said judgment, learned advocate Mr. Shah has requested to grant the relief as prayed for in the present appeal.

 4. To    meet     with   the   stand    taken    by  learned
 advocate      for   the appellant,    Mr.   Bhargav Pandya,

learned AGP appearing for the respondent - State has examined the papers and had candidly submitted that there is a decision of the coordinate Bench which has taken note of previous orders as well and there appears to be no distinguishable material to deviate from the proposition laid down by the co-ordinate Bench. However, with a view to oppose, a contention is raised that the Reference Court has examined all the issues and the order is passed after proper application of mind and, therefore does not call for any interference.

5. Having heard the learned advocates for the respective parties and having gone through the material on record, undisputedly it is reflecting that relying upon the previous decisions, the co-ordinate Bench of this Court in an order dated 11.09.2018 in First Appeal No. 3276 of 2018 has taken a particular decision which deserves to be considered as the surrounding of the Village, the land acquired of the appellant is valuable, having good potential and the nearby village is at

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very small distance. It has been pointed out that even the land belonging to the appellant has also been acquired for this very project, As a result of this, it appears that the case is squarely covered by the earlier pronouncement which has been given after hearing both the sides. Accordingly, a case appears to have been made out by the appellant.

6. In the wake of the aforesaid situation which is prevailing on record, with respect to the acquired lands of village Khilodiya for which the Reference Court has awarded Rs.204/- (210.6) for open land and the said village is situated just at a distance of 3 Kms., only from the village Aakrund and the land was acquired for this very project, the Court is of the opinion that the same amount of compensation to the present appellant is also entitled and this is more so in view of the fact that the aforesaid order is not carried out any further by the respondent - State.

7. Resultantly, for the reasons stated above, the present appeal is allowed in part, and it is held that the claimants shall be entitled to the compensation at the rate of Rs.210/-per sq.mtr., (in all) with all other statutory benefits which may be available to the claimants under the provisions of the Act as awarded by the Reference Court in the impugned award. Accordingly, the impugned award dated 31.03.2016 passed in Land Reference Case No. 781 of 2010 is hereby modified to the aforesaid extent. The First Appeal is partly allowed with no order as to costs."

8. Mr.Barot, learned AGP could not dispute the fact that the Land Reference Case No.789 of 2010 was part of the group of Land Reference Case No.781 of 2010, which was decided by the Co-ordinate Bench of this Court.

9. In view of the above, I am of the considered opinion that the decision of Co-ordinate Bench of this Court in First Appeal No.483 of 2019 passed on 1.2.2019, is applicable to the present case on all four.

10 Resultantly, for the reasons stated above, the present appeal is allowed in part, and it is held that the

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claimants shall be entitled to the compensation at the rate of Rs.210/-per sq.mtr., (in all) with all other statutory benefits which may be available to the claimants under the provisions of the Act as awarded by the Reference Court in the impugned award. Accordingly, the impugned award dated 31.03.2016 passed in Land Reference Case No. 789 of 2010 is hereby modified to the aforesaid extent. The First Appeal is partly allowed with no order as to costs."

(A.G.URAIZEE, J) ALI