Prabhatsinh Hemubha Rathod vs The Special Land Acquition ...
2022 Latest Caselaw 3862 Guj

     C/FA/1841/2018                                  ORDER DATED: 01/04/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1841 of 2018
                                    With
                       R/FIRST APPEAL NO. 1842 of 2018
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                 PRABHATSINH HEMUBHA RATHOD
                             Versus
          THE SPECIAL LAND ACQUITION OFFICER & 1 other(s)
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Appearance:
MR JINESH H KAPADIA(5601) for the Appellant(s) No. 1
MR MANRAJ BAROT, AGP for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                               Date : 01/04/2022

                                ORAL ORDER

1. Present batch of appeals under Section 54 of the Land Acquisition Act, 1894 ("the Act" for short) read with Section 96 of the Civil Procedure Code, 1908 ("the Code" for short) are preferred for enhancement of compensation awarded by the Reference Court in six different groups of land references in which the common evidence was recorded in Land Reference Case No.136 of 1999.

2. I have heard Mr.Jinesh Kapadia, learned advocate for the appellants and Mr.Manraj Barot, learned AGP for the respondents.

3. He further submits that coordinate bench of this Court by judgment dated 26.4.2017 passed in First Appeal

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No.206 of 2010 and connected appeals arising from the cognate group has partly allowed the appeals. Mr.Kapadia submits that six groups of LAR's were disposed of by the Reference Court by recording common evidence in LRC No.136 of 1999. He, therefore, urged that the present group of appeals may also be allowed in terms of the judgment of the coordinate bench of this Court.

4. Mr.Barot, learned AGP candidly submits, though he has very limited scope of opposing the appeals in view of the judgment of the coordinate bench which is emanated from LRC No.136 of 1999, that appropriate order may be passed.

5. I have considered the rival submissions.

6. The coordinate bench of this Court rendered the judgment in First Appeal No.206 of 2010 and connected matters reads as under.

"Present group of appeals have been filed under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') read with Section 96 of the Civil Procedure Code, 1908 being aggrieved with the impugned judgment and award passed by 3rd Additional Senior Civil

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Judge, Surendranagar (hereinafter referred to as 'the Reference Court') in Land Acquisition Reference case Nos.136 of 1999 (main) by the reference court dated 27.12.2007 partly allowing the reference for the enhancement of the amount of Rs.10.11 for non-irrigated land, Rs.13.20 for irrigated land and Rs.7.87 for Kharaba land.

2. The background of the facts briefly summarized is as follows:

2.1. The land of the appellant-original claimant has been acquired by the opponent no.2-Sardar Sarovar Narmada Nigam, Saurashtra Branches Limdi Canal Division. The notification under Section 4 has been issued on 28.10.1992 and 18.03.1993 and the notification under Section 6 of the Act has been issued on 07.07.1993 and the final notification under Section 6 has been issued on 29.01.1994. Thereafter, the Land Acquisition Officer has fixed the hearing under Section 9 of the Act and after hearing the claimants, has passed an award dated 24.01.1996 awarding the compensation of Rs.10.11 for non-irrigated land, Rs.13.20 for irrigated land and Rs.7.87 for Kharaba land.

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2.2 However, the appellant-original claimant being aggrieved has filed a reference under Section 18 of the Land Acquisition Act before the Reference Court. The Reference Court, in the respective LARs case, as stated above, including Land Acquisition Reference Case No.136/1999(main), had considered the material and evidence including the details with regard to the nature of land as well as other sale instances, maps and the judgment of the High Court in other lands situated nearby villages. The Reference Court, on appreciation of materials and evidence, partly allowed the reference awarding an additional compensation to the tune of Rs.10.11 paisa for non-irrigated land, Rs.13.20 paisa for irrigated land and Rs.7.87 paisa for Kharaba land.

3. Therefore, being aggrieved with the judgment and award of the Reference Court, the present appeal has been preferred by the appellant- original claimant making the claim for enhancement to the tune of Rs.200 on the ground stated in the memo of Appeal.

4. Heard learned advocate Shri Jenish Kapadia for the appellant and learned AGP Shri P P Banaji

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for the respondents.

5. Learned advocate Shri Kapadia has referred to the background of the case and also pointedly referred to the judgment of the Reference Court and submitted that the Reference Court has failed to appreciate the relevant aspect as well as the award passed in respect of the land situated of the same village Wadhwan and also in the near vicinity. He submitted that the Reference Court has not considered the aspect of potential development and the judgment of the High Court. He referred to the papers and submitted that reliance has been placed on Exh.76 as well as Exh.89. He submitted that Exh.76 refers to the Land Acquisition Reference Case No.22 of 1994 regarding the land of village Wadhwan itself. However, he submitted that much reliance is placed on Exh.89 by the Reference Court referring to the land of Village Wadhwan which acquired earlier. He also referred to the details and the market price and the judgment of the High Court of Gujarat. He, therefore, submitted that the court below has tried to consider the judgment of the High Court reported in 2007 (3) GLR 2280 -Vasudev Chunilal Pancholi vs Land Acquisition Officer, though it has not been cited or relied upon by either side. He further

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submitted that it has referred to cultivation of a land cultivated much earlier in the year 1979. He submitted that the Reference Court has failed to consider the material produced by the claimants with regard to the acquisition of the land in 1990 of the land situated in Wadhwan itself. He therefore, submitted that it would be more relevant to consider the value of the land as on 1990 of the same village Wadhwan as a basis for the purpose of arriving at the value for the enhancement in the compensation. He pointedly referred to the award in the year 1990 and submitted that even in the year 1990, the valuation of the land in Wadhwan village itself is expected at Rs.45, 50 and 55 depending upon the relevant criteria like distance and situation of the land. He again referred to Exh.76 and submitted that this has not been appreciated by the Reference Court. He submitted that if it has been considered as a basis, and thereafter 10% is added in respect of the land in question acquired in the present case, it would lead to a reasonable and just compensation. He further submitted that if the value of the irrigated land is considered, it would be just and proper. On that basis, the value of the non irrigated land could be considered little less. He submitted that Exh.89 refers to the land of village Dudhrej where the

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valuation has been assessed at Rs.110 which has also not been appreciated. He submitted that, in fact, the value of the land situated at Wadvan itself could have been considered for the purpose of the valuation of the land in the present case and it could have arrived at the proper valuation which has not been done. He, therefore, submitted that present appeal may be allowed. He has referred to and relied upon the judgment of the Hon'ble Apex Court reported in 2001 2 GLH 583.

6. Learned AGP Shri Banaji, however, submitted that while considering the compensation, the distance between two class of land itself cannot be the criteria for deciding the claim. He submitted that distance between the two lands would not be relevant or the sole criteria. He, therefore, submitted that the appropriate order may be passed allowing the appeal for enhancement based on the assessment made for the valuation of the land of Wadhwan itself in another case referring to Exh.76.

7. Learned AGP Shri Banaji referred to the papers and tried to submit that the lower court is bound by the precedent. He submitted that the

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judgment of the High Court with regard to the valuation of the land of the same village is bounding, and therefore, the Reference Court has considered the judgment of the High Court of Gujarat reported in 2007 3GLR 2280 for the purpose of valuation of the land. He submitted that if it is 1979 proposing increase could be made which has been discussed in the impugned judgment in para 20. He, therefore, submitted that the judgment of the Reference Court is just and proper as it has considered relevant criteria. He has also submitted that while deciding the valuation of the land, the relevant criteria has to be seen not only qua the distance, but also the situation, location or the potential development of the land is required to be considered.

8. In view of the rival submissions it is required to be considered whether the present appeals deserve consideration or not. It could be seen from the judgment of the Reference Court that the relevant material has been placed on record for the purpose of guidance to arrive at the valuation of the land situated at Wadhwan. Reliance is placed on Exh.76 where the value of the land has been taken as stated above Rs. 45, 50 and 55 depending upon the nature of the land.

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Therefore reliance is placed by the Reference Court on a judgment of the High Court reported in 2007 3GLR 2280 referring to the acquisition made earlier way back in 1979 is misconceived. It is required to be stated that the reliance could be placed on such a judgment as a guidance but at the same time it cannot be the sole basis coupled with the fact that when the material is available with regard to the same village where the acquisition has taken place subsequently it could be relied upon. It is also required to be stated that Exh.76 refers to the acquisition of the land of the same village Wadhwan where the value of the land is taken at Rs. 45, 50 and 55 and also depending upon the nature of land ought to have been considered as a guidance. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in (2008) 14 SCC 745 referring to the same aspect about the valuation of the land where it has been observed:

"As per the trend in nineties, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best

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be only around half of it, that is about 5% to 7.5% per annum."

The Hon'ble Apex Court has also made the observation that increase in the land price depend upon the factors like situation of land, nature of development in surrounding areas, availability of the land for development in the area and demand for land in the area. Therefore, the Reference Court has not given any justification for not considering the aforesaid criteria for the purpose valuation of the land in the present case. It is required to be stated that, the lands of the same village Wadhwan and Dudhrej are in close proximity to the developed town Surendranagar. If the village Dudhrej which is at the outskirt of Surendranagar and nearer to the developed town Surendranagar, the village Wadhwan is also not far from the developed town Surendranagar. Therefore, the value of the land even at Wadhwan in another case in 1990 is taken at Rs.45, 50 and 55 then there is no justification for the Reference Court to make the assumption in respect of the land situated in Wadhwan itself on the basis of value of land in the year 1979 relying upon the aforesaid judgment reported in 2007 3GLR 2280. In fact, the Reference Court has overlooked the aforesaid

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aspect of potential development which is one of the relevant criteria as well as the criteria considered by the Hon'ble Apex Court in a judgment reported in (2008) 14 SCC 745. In other words, the aspect of potential development, which is one of the relevant criteria has to be considered together with the proximity of land with the developed town with further chances of potential development and infrastructure facility. Therefore, if the value of the land situated at Wadhwan itself is taken at the rate of Rs. 45, 50 and 55 in the year 1990 itself, it would have been based on the relevant criteria of development or the potential development, which could be a guidance for the purpose of arriving at the proper valuation of the land of village Wadhwan itself which is acquired in the year 1992. Therefore, if 10% is added to the value of the land which is taken at Rs.55 in the year 1990, further 11 rupees would be added which would come to Rs.66 per sq. meter for the purpose of acquisition of the land situated at Wadhwan itself in the year 1992. Similarly, same method could be made applicable qua the non-irrigated land and Kharaba land where the value of the land were taken at Rs.50 and 45 respectively, and thereafter, 10% is required to be added every year i.e. for two years it would come to Rs.60.5 and

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Rs.54.45 for non-irrigated land and Kharaba land respectively. Thus, it would be a just and fair compensation if the value of the land acquired in the year 1992 is considered on the basis of the valuation of the land acquired in the year 1990 of the same village Wadhwan as stated above.

9. Therefore, the present First Appeals accordingly stands allowed partly to the aforesaid extent. Decree be drawn accordingly."

7. In view of the above, since as emerging from paragraph 4 of the impugned award that common evidence was recorded in LRC No.136 of 1999 and this Court in the aforesaid judgment has partly allowed the appeals, present group of appeals are partly allowed in terms of the judgment dated 26.4.2017 rendered in First Appeal No.206 of 2010 and connected appeals. It is expected of the respondents to deposit the amount of compensation in terms of the judgment in the Reference Court within a period upto 31.7.2022.

(A.G.URAIZEE, J) H.M. PATHAN