Bharat Petroleum Corporation ... vs State Of Gujarat
2021 Latest Caselaw 16667 Guj

     C/FA/933/2020                              ORDER DATED: 25/10/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 933 of 2020
                               With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
                           NO. 1 of 2021
                In R/FIRST APPEAL NO. 933 of 2020
==========================================================
              BHARAT PETROLEUM CORPORATION LIMITED
                              Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
MR MITUL K SHELAT(2419) for the Appellant(s) No. 1
Ms. ASMITA PATEL, AGP for the Defendant(s) No. 1
MR KM SHETH(838) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 3
==========================================================

 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 25/10/2021

                            ORAL ORDER

1. The appeal is admitted by Coordinate Bench of this Court vide order dated 27.02.2020.

2. By way of the present appeal, the present appellant has challenged the order dated 05.10.2019 passed in Land Acquisition Reference Case No. 5 of 2008 below Exh.14 whereby the learned Principal Senior Civil Judge, Anand partly allowed the reference preferred by the original claimant and enhanced the amount of compensation to Rs. 124.28 from Rs.36 per sq. meter along with 12% interest from the date of Section 4 Notification till the date of award or the possession land acquired was taken over whichever is earlier, 30% solatium and interest at the rate 9% from the date of taking over the possession of the land for the first year and at the rate

C/FA/933/2020 ORDER DATED: 25/10/2021

of 15% for rest of the period till the date of actual payment is made.

3. By consent of all the advocates appearing for the parties, the appeal is taken up for final hearing and is being decided today finally. All the learned advocates for the contesting parties i.e. learned advocate Mr. Mitul Shelat for the appellant, learned advocate Mr. K.M. Sheth for the claimant and learned AGP Ms. Asmita Patel for the respondent - State are in agreement that the documents which are there on record are sufficient to adjudicate the issue in question and there is no necessity to call for Record and Proceedings or to prepare paper-book of the documents produced before the Trial Court and therefore, the appeal is being decided only on the basis of the documents which are produced on record by the appellant and are not disputed by the respondents.

4. The brief facts of the case are as under:-

(1) That the land bearing Survey No.307/2, admeasuring 1518 Sq. Meters and Survey No.307/3 admeasuring 4553 Sq. Meters situated at Village Thamana, District: Anand was acquired by the Respondent No.3 for the purpose of construction of Pumping Station for Bharat Oman Refineries Limited under the provisions of the Land Acquisition Act, 1894 ("the Act").

 C/FA/933/2020                                 ORDER DATED: 25/10/2021



          (2)       That the relevant facts in respect of the

publication of the Notifications leading to the declaration of award and filing of reference are as below:-

           Sr.      Notification                           Date
           No.
           1.       Notifications under Section 4          17.02.2005
           2.       Notifications under Section 6          16.01.2006
           3.       Award Passed by the Collector          20.11.2007
           4.       Date of filing of Reference            03.12.2007


          (3)       The Collector awarded a sum of Rs.36/- per Sq.

Meter as compensation in accordance with the provisions of the Land Acquisition Act, 1894. The Claimant has claimed enhancement of compensation at the rate of Rs.500/- per Sq. Meter.

(4) That oral evidence was lead on behalf of the Claimant along with documentary evidence. That deposition of one Narayan K. Muchar along with documentary evidence was adduced by the original Opponent No.1. Deposition of Jeganathan I. and Sanabhai Himmatsinh Chauhan along with documentary evidence was also adduced by the Appellant.

(5) That other than the above (4), the original claimant opted not to lead any oral or documentary

C/FA/933/2020 ORDER DATED: 25/10/2021

evidence.

(6) That the Learned Judge concluded the hearing of the Land Reference Cases on 05.10.2019 and the judgment was made available on 11.12.2019. The decree was drawn on 19.12.2019. However, the judgment is stated to have been delivered on 05.10.2019 which in fact was the date on which the arguments were concluded before the Reference Court.

(7) The learned Judge, by the impugned judgment, has been pleased to allow the Reference of the Claimant and has determined the market value of the land in reference at Rs.124.28 per Sq. Meter as against the market value of Rs.36/- per Sq. Meter determined in terms of the award. The learned Judge has awarded additional compensation at the rate of Rs.88.28 per Sq. meter. The learned Judge has further awarded interest @ 12% from date of Notification under Section 4 till the date of the award or the possession having been taken, whichever is earlier; solatium along with proportionate interest under Section 23 (2) and 9% interest for the first year from the date of taking possession and 15% interest till the date of payment under Section 28.

5. Learned advocate Mr. Mitul K. Shelat for the appellant submitted that the learned Judge has committed an error by

C/FA/933/2020 ORDER DATED: 25/10/2021

shifting the burden in respect of value of land upon the present appellant as the original claimant failed to produce sufficient and cogent evidence in respect of fair valuation of the land. He submitted that the claimant has failed to establish the claim for enhancement of compensation by leading any evidence in respect of his land, instead of rejecting the claim for enhancement by considering the fact that the claimant could not produce any evidence in support of his claim. The learned Judge has by adopting the extraneous method not prescribed under the law enhanced the compensation.

6. Learned advocate for the applicant has submitted that the learned Judge by applying the arbitrary and illegal method for determining the compensation added 10% on the market value determined on the date of Section 4 Notification till the date of award. The aforesaid method is not in consonance with the scheme of the Act as the Act requires that the market value is required to be determined on the date of publication of Section 4 Notification and cannot travel beyond the date of Section 4 Notification.

7. Learned advocate Mr. Shelat for the applicant further submitted that even arithmetically the determination of enhanced market value is not correct. He further submitted that Section 4 Notification was issued in the year 2005 whereas the award was declared in the year 2007. Assuming without admitting the fact that the method of 10% increase in the value

C/FA/933/2020 ORDER DATED: 25/10/2021

of land is to be applied for the said period then also the market value of the land would not come to Rs.124.28. Therefore, even arithmetically also valuation of land is erroneous.

8. He further submitted that the learned Judge has failed to consider the following admitted facts which are emerging from the record of the proceedings:-

1. That on the date of issuance of Section 4 Notification, the area of land acquired was just recently constituted as village in the year 2003 whereas Section 4 Notification was issued in the year 2005.

2. The land situated in the village is not connected with any State or National Highway.

3. The Village Thamana is also stated to be at distance of 4 k.m. away from Taluka: Umreth.

4. There was no development in an around the village.

5. There is no industrial development around the lands acquired.

9. Learned advocate Mr. Shelat submitted that though aforesaid facts are very much on record, the learned Court below did not apply its mind in respect of the aforesaid aspect and by adopting some extraneous method has proceeded with the land reference case awarded the enhancement as per the judgment.

C/FA/933/2020 ORDER DATED: 25/10/2021

Therefore, the same deserves to be quashed and set aside.

10. Learned advocate Mr. K.M. Sheth for claimant vehemently opposed the submissions of learned advocate Mr. Mitul Shelat. However, from the record he could not point out that either the learned Judge has adopted the right approach while computing the amount of enhancement or that the evidence in respect of the grievance raised by the learned advocate Mr. Shelat was dealt by the court below.

11. At this stage, learned advocate Mr. Shelat submitted that if the matter is remanded back, keeping the contentions of both the sides open and without any rights and prejudice to any sides, in that case interest of justice would be served. However, it was submitted by both the learned advocates that some time frame may be given for Court below to hear and decide the land reference case, once it is remanded back to the concerned Court.

12. Having heard the learned advocates for the parties and having perused the judgment as well as considering the fact that the learned advocate Mr. Sheth could not point out from the judgment that any evidence in respect of what is stated in the foregoing paragraphs in respect of valuation of land acquired has been adduced and also considering the fact that the learned Judge below has carried out the valuation of the land in a manner which is not in consonance with the scheme of the Act and also having considered the fact that the

C/FA/933/2020 ORDER DATED: 25/10/2021

arithmetically also even if the aforesaid scheme adopted by learned Judge is applied then also such valuation cannot be said to be just and proper. The present appeal is required to be partly allowed by remanding back the matter to the concerned Reference Court. An order dated 05.10.2019 passed in Land Acquisition Reference Case No. 5 of 2008 by the Principal Senior Civil Judge, Anand is hereby quashed and set aside for adjudicating it afresh within a period of 18 months from today.

13. It is clarified that this Court has not gone into the merits of the matter.

14. The Court below shall provide an opportunity of hearing to all the parties and proceed with the matter in accordance with law. The aforesaid exercise is expected to be completed within a period of 18 months from today. With the aforesaid observations, the impugned order is quashed and set aside. The Appeal is allowed in the aforesaid terms.

15. In view of disposal of main appeal, connected civil application does not survive. Hence, Civil Application stands disposed of.

16. Amount deposited by the present appellant along with interest be remitted back to the present appellant within a period of 6 weeks from today, on an application being made by the applicant to the Registry of this Court.

                                                   (NIRZAR S. DESAI,J)





          C/FA/933/2020                 ORDER DATED: 25/10/2021


VARSHA DESAI