Special Laq Officer, Deputy ... vs Rambhai Lalabhai ...
2022 Latest Caselaw 5 Guj

       C/FA/855/2009                                ORDER DATED: 03/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 855 of 2009
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        SPECIAL LAQ OFFICER, DEPUTY COLLECTOR & 1 other(s)
                              Versus
        RAMBHAI LALABHAI (DEC'DTHRO'HEIRS & LRS) & 1 other(s)
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Appearance:
MS. DIVYANGNA JHALA, ASSISTANT GOVERNMENT PLEADER(1) for the
Appellant(s) No. 1,2
DS AFF.NOT FILED (R)(71) for the Defendant(s) No. 2
MR DINESH V SHAH(6568) for the Defendant(s) No.
1.2,1.3,1.4,1.5,1.6,1.8,1.9
NOTICE SERVED BY DS(5) for the Defendant(s) No. 1.1,1.7
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
           and
           HONOURABLE MR. JUSTICE SAMIR J. DAVE

                              Date : 03/01/2022

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

The present appeal preferred by the Land Acquisition Officer under section 54 of the Land Acquisition Act, 1894 read with section 96 of the Code of Civil Procedure, 1908, is directed against common judgment and award dated 5th May, 2000 passed by learned Civil Judge (Senior Division), Surat, in Land Reference Cases No. 38 of 1993 and other reference cases, in so far as the said common judgment and award pertains to the Land Reference Case No. 38 of 1993.

2. The Reference Court partly allowed the reference in question alongwith other reference cases awarding compensation at the enhanced rate of Rs. 25 per sq.mtrs., further granting the benefit of solatium etc..

3. The land bearing Survey No. 239 admesuring 1 Hec. 13 Are and 16 sq.mtrs. situated at village Gaviar, Surat belonging to the respondent

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claimant came to be acquired alongwith other parcels of land under the provisions of the Land Acquisition Act, 1894 for the public purpose of extension of airport at Dumas, Surat. Notification under section 4 of the Act of the Land Acquisition Act (hereinafter referred to as 'the Act') was published on 28.12.1989 whereas notification under section 6 of the Act came to be published on 1.12.1990. The Land Acquisition officer declared his award under section 11 of the Act on 30.12.1992 awarding Rs. 3.50. Rs. 6, Rs. 8 and Rs.10 depending upon the category of the lands against the amount of compensation at Rs. 200/- per sq.mtr. demanded by the claimants.

3.1 The aggrieved claimant respondent herein with other claimants whose lands were also acquired under the same notification, made reference under section 18 of the Act. The Reference court passed the impugned judgment and award and awarded Rs. 25/- per sq.mtrs. with other benefits as per the operative directions in the award. It appears that reference case No. 38 of 1993 to which the present First Appeal corresponds, was the main Reference case in the group of reference cases decided as per the common judgment and award.

4. While in the memorandum of appeal, various grounds are raised to call in question the judgment and award of the Reference Court and the enhanced rate of compensation awarded, in course of the hearing, learned Assistant Government Pleader Ms. Divyangna Jhala was fair to submit before the court that the very common judgment and award was subject matter of challenge by the State before this Court in group of Appeals which culminated into judgment dated 11.8.2011 in Special Land Acquisition Officer, Deputy Collector and other vs. Parbhubhai Hirabhai and other being First Appeal No. 498 of 2003 to First Appeal No. 512 of

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2003.

4.1 Learned advocate Mr. Dinesh Shah appearing for the respondents claimants could not dispute the above position of law emanating from record, nor was he in a position to submit that the aforesaid judgment dated 11.8.2011 in the rest of the reference cases have been modified or further challenged.

5. It could be thus noticed that in deciding the group of said First Appeals, reference case No. 38 of 1993 was not dealt with. In another words, the present appeal is a left out case amongst the group of cases decided as above by this court on 11.8.2011.

5.1 The reading of the judgment of this court in aforesaid cognate group of Appeals show that the Court in detail considered the common judgment and award of the reference court to notice as observed in para 7 and elsewhere in the judgment, that reference court relied on Exh. 36 and Exh. 37 respectively, which were the award in relation to acquisition of land situated at village Magdalla alongwith the map at Exh. 42. The distance of village Magdalla is 2 k.m. from the land in question, noted by the court. It was observed that the Reference Court was justified in relying on the said decision of village Magdalla alongwith other relevant details to award the compensation. The court took view that the decision of the reference court at Exh. 37 in awarding compensation for acquisition of land at village Magdalla, deserved to be applied for the purpose of determination of compensation in the present case also.

5.2 It was on the following considerations the court observed in Parbhubhai Hirabhai (supra) that the compensation determined for lands at village Magdalla as per Exh. 37 would represent fair market

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value of the lands in instant cases,

"The perusal of the decision of the Reference Court in respect of the acquisition of the lands at Village Magdalla - Exh. 37 shows that there were substantial developments at Village Magdalla. However, while awarding compensation, Reference Court in that case had distinguished the market price on the basis of the location of the land inasmuch as for those lands located near to the main highway, the market price was fixed at Rs.22/- per sq. mtrs., whereas for lands which were located nearer to highway the market price was fixed at Rs.20/- per sq. mtrs. The reasons recorded by the Reference Court in the said decision also shows that the nearby lands, under acquisition in that case, the factories of Kribhco, ONGC, L & T, Reliance Company, etc., were located. No such evidence has come on record in the present case, keeping in view the aspect of about 2 kms from Village Magdalla for the lands at Gaviyar, we find that the bottom price fixed for the nearer lands at Rs.20/- per sq. mtrs., taking into consideration the compensation for lands at Village Magdalla and thereby to assess the fair market value of the lands."

5.3 In Exh. 37 decision of Magdalla, the notification under section 34 was issued on 24.12.1989. The gap of 7 years in respect of the land at village Magdalla and in respect of the land involved in the said cases, was considered by the court to reckon the same for appreciation at the rate of 10% per annum for 7 years. It needs no reiteration that ratio of 10% is to be applied for the purpose of counting enhancement in the compensation from the base date which may be applied as determinative for the compensation in another case.

5.4 Following was observed in para 12,

"The another distinguishing feature is that the Notification under Section 4 of the Act in that case for the acquisition of the land at Village Magdalla was published on 16.8.1982, whereas the Notification under Section 4 of the Act in the present case is on 28.12.1989. Therefore, there is a time gap of seven years, for which the appreciation will be required to be considered. If Rs.20/- is considered as the basis and the appreciation is considered at the ratio of 10% per annum for seven years, such would come to Rs.14/- and total Rs.34/- per sq. mtrs., being the market price of the lands. As against the same, it appears that the Reference Court by the impugned judgment has assessed the value at Rs.25/- per sq. mtrs. Therefore, the judgment and award of the Reference Court to that extent deserves modification."

5.5 The aspect of distance of the land under acquisition from the highway, was also considered by the court in Parbhubhai Hirabhai

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(supra),

"We have considered the award passed by the Land Acquisition Officer and the perusal of the award shows that the Land Acquisition Officer has awarded different compensations from Rs.6 to Rs.10 on the ground that the lands located on the State Highway, the compensation was fixed at Rs.10/- per sq. mtrs., whereas for the lands located interior to the highway, but with the availability of access the compensation was fixed at Rs.8/- per sq. mtrs., and for the lands, where there was no access available, the Land Acquisition Officer had awarded compensation at Rs.6/- per sq. mtrs. We find that the distinction as was borne in mind by the Land Acquisition Officer was a relevant aspects and no evidence has come on record showing the contrary position in the deposition of the claimants or otherwise. Even otherwise also, it can hardly be accepted that the valuation of the lands, located on the highway would be the same in comparison to the valuation of the lands, located in the interior area from the highway. Normally the valuation of the lands, located on the highway would be higher in comparison to the lands, located in the interior side of the highway. In same way, the valuation of the lands, which have access to the highway will be more in comparison to the lands for which there is no access to the highway or otherwise."

5.6 The court enhanced the market value of the lands depending upon its location interior or otherwise from the highway discussing the same in para 16 and 17 of the said decision, to be applied in common in the present case also,

"16. As observed earlier for the lands, which are located on the highway or adjacent to the highway, the Land Acquisition Officer has already awarded compensation at Rs.10/- per sq. mtrs. Therefore, we find that the market value of those lands can be considered as Rs.34/- per sq. mtrs., as per the calculation made and the reasons recorded herein above. However, so far as the lands, located in the interior part from the highway and for which the Land Acquisition Officer has awarded compensation at Rs.8/- per sq. mtrs., if the proportionate deduction is made in the figure of Rs.34/-, it would come to Rs.27.20 and if rounded of, it would be Rs.28/- per sq. mtrs.

17.However, so far as the lands, located much interior and for which as per the award of the Land Acquisition Officer, there was no access available, we find that the Land Acquisition Officer had made deduction excessively in comparison to the deduction ought to have been made. If for the lands interior to the highway, the Land Acquisition officer had given deduction of 20% i.e. Rs.8/- as against Rs.10/- (for the land located on the highway), such deduction, in any case, could not have exceeded even for the lands, for which there was no access to the highway, but it appears that the Land Acquisition Officer has made deduction of 25% by awarding compensation at Rs.6/- per sq. mtrs., which, in our view, was excessive. Further the learned Counsel for the appellants - original claimants is right in submitting that if the purpose of the acquisition is considered, the same is for aerodrome wherein every location may not have the access to the highway and if the matter is considered on the basis of the fertility, there will not be substantial difference in the fertility of the land. Under these circumstances, we find that instead of deduction of 25% in the value of the lands, located in the interior of highway, appropriate deduction could have been 15% and

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accordingly, such figure may come to Rs.6.80 in comparison of Rs.8/- for the lands, located in the interior area of highway. Thereafter, if Rs.34/- is taken as basis for the lands, for which compensation is awarded at Rs.10/- per sq. mtrs., the market value of the lands in question proportionately would come to Rs.23.12 ps., per sq. mtrs., and if rounded off, it would come to Rs.24/- per sq. mtrs."

5.7 In Parbhubhai Hirabhai (supra), the court finally classified the lands into three categories, extracting the relevant paragraphs,

"(1) First would be the land for which the compensation has been calculated at Rs.34/- per sq. mtrs., Rs.10/- shall be deducted as the compensation already paid and the net amount of additional compensation would be of Rs.24/- per sq. mtrs.,

(2) For those lands; whereas for the lands for which the Special Land Acquisition Officer has awarded compensation at Rs.8/- per sq. mtrs., the gross amount of compensation shall be Rs.28/- per sq.mtrs., and the net amount of additional compensation shall be Rs.20/- per sq.mtrs. ;

(3) So far as the remaining lands are considered, the claimants shall be entitled for gross compensation of Rs.24/- per sq. mtrs., and after deduction of Rs.6/- per sq. mtrs., the net amount of additional compensation shall be of Rs.18/- per sq.mtrs., but in a case, where the actual compensation has been paid at Rs.3.50 per sq. mtrs., such persons would be entitled to the additional compensation at Rs.20.50 per sq. mtrs. Hence, we order accordingly.""

5.8 Having laid down as aforesaid by applying relevant considerations and criteria for determination of acquisition compensation, the court accepted the submission on behalf of the original claimants that the reference court had not specifically granted interest on the amount of solatium under section 23(2) as well as for increase under section 23 (1- A) of the Act. In that regard the court referred to the decision in Gujarat Industrial Development Corporation v. Patel Bhagwanbhai Bhimjibhai (FA No.805 of 1994 and allied matters) in which view was taken that interest on solatium under section section 23(2) as well as for increase under section 23 (1-A) of the Act could be available from 19 th September, 2001 onwards. Therefore, while upholding common judgment and award of the Reference Court, the Court modified the judgment and award to the extent of awarding interest from 19 th September, 2001 till the actual payment.

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6. Hence, we find that the same modification shall have to be applied and applies in the present matter. Therefore, it is ordered that the original claimants shall also be entitled to the interest under Section 23(2) of the Act and increase under Section 23(1-A) of the Act from 19 th September, 2001 onwards until the amount is actually paid or deposition with the Court.

7. As the present case arises from the said common judgment and award which is upheld and modified as above in Parbhubhai Hirabhai (supra) and book no distinction on facts whatsoever, the present appeal is liable to be disposed of with modification in the impugned judgment and award as directed by the court in Prabhubhai Hirabhai (supra) that the respondents claimants shall be entitled to get the interest on the solatium amount under section 23(2) as well as for increase under section 23 (1-A) of the Act from 19th September, 2001 onwards till the amount is actually paid or deposited with the Court. While upholding the impugned judgment and award of the Reference Court with the modification, the appeal stands disposed of.

Record and proceedings shall be sent back to the court concerned.

(N.V.ANJARIA, J)

(SAMIR J. DAVE,J) C.M. JOSHI