Yusufbhai Teherbhai Badri vs Surat Municipal Corporation
2022 Latest Caselaw 676 Guj

      C/SCA/2606/2016                             JUDGMENT DATED: 20/01/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 2606 of 2016
                                    With
              CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
               In R/SPECIAL CIVIL APPLICATION NO. 2606 of 2016
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 2608 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
===============================================================
1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

================================================================
                         YUSUFBHAI TEHERBHAI BADRI
                                   Versus
                        SURAT MUNICIPAL CORPORATION
===============================================================
Appearance:
MS KJ BRAHMBHATT(202) for the Petitioner(s) No. 1
MS VARSHA BRAHMBHATT(3145) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
===============================================================
    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 20/01/2022
                              ORAL JUDGMENT

[1] Rule. Learned advocate Mr. H.S.Munshaw waives service of

rule on behalf of respondent-corporation.

[2] This group of petitions are filed against the judgment and order

passed in Regular Civil Appeals by the 9th Additional District Judge,

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

Surat by which the compensation awarded under the provisions of

Bombay Municipal Corporation Act (for short "the Act") and the

interest calculated was called in question. By way of these writ

petitions, the judgment and order passed by the District Court in the

appeals filed both by claimants as well as acquiring body namely

Surat Municipal Corporation is challenged.

[3] The issue pertains to award of compensation to the petitioner

whose land was acquired for the purpose of widening of the road.

The corporation through its Commissioner had awarded the amount

of compensation, against which the Municipal Reference was

preferred by the petitioner and the Principal Senior Civil Judge, Surat

decided the reference.

[3.1] The reference was subject matter by separate appeals

preferred both by the claimants as well as the Surat Municipal

Corporation and by common judgment, the respective appeals came

to be decided. Each appeal filed by the claimant and the municipal

corporation was decided by a common judgment hence, the

petitioner has preferred two writ petitions, pertaining to the same

plot, part of which was taken up for the purpose of road widening.

All these petitions were heard jointly however, to avoid confusion,

separate orders are passed as per the property number.

[4] The present petitions pertains to property Ward No.7 Nondh

No.278/A/1/7/2 situated at Sufibaug, Station Road, Surat City, where

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

acquired land is admeasuring 190.8224 Sq.Mtrs to widen the

existing 50 feet road to 60 feet road by the Surat Municipal

Corporation under Section 210 read with Section 212(2) of the Act.

The commissioner on 10.12.2002 under Section 390 awarded the

compensation for the land is Rs.7689/- per sq.mtr.

[4.1] Thereafter, the petitioner filed Municipal Reference which was

partly allowed vide order dated 23.09.2010, whereby granted

additional compensation of Rs.6349.51 and hence total

compensation of Rs.14,038.51 per sq.mtr with interest at the rate of

15% per annum from the date of taking possession i.e. 01.03.2002

till realization of the same.

[4.2] Thereafter, against the aforesaid order, separate appeal filed

by both the claimant seeking enhanced compensation, rate of

interest, date of granting interest from the date of possession till

realization and Surat Municipal Corporation seeking reduction rate

of interest. In both the appeals, vide common judgment and order

dated 21.11.2015, the appeal preferred by the SMC was partly

allowed and reduced the rate of interest to 9% payable from the

date of order of Reference Court dated 23.09.2010, whereas the

appeal preferred by the petitioner is dismissed.

[4.3] Special Civil Application No.2606 of 2016 is filed by the

petitioner against the order passed in Regular Civil Appeal No.63 of

2010, whereas the Special Civil Application No.2608 of 2016 is filed

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

by the petitioner against the order passed in Regular Civil Appeal

No.78 of 2010.

[5] Learned advocate for the petitioner submitted that the lower

appellate Court has committed grave error by reducing the rate of

interest from 15% per annum awarded by the Reference Court to

9% per annum on the ground that it is excessive. it is submitted

that in a different proceedings regarding road widening The learned

Principal Senior Civil Judge, Surat vide judgment and order dated

29.09.2008 in Municipal Reference No.5 of 1997, awarded rate of

interest at 15% per annum and against the said award, the

respondent-Municipality has preferred Regular Civil Appeal No.30 of

2010, wherein the District Court at Surat reduced the rate of

interest at 12% per annum from 15% per annum. The SMC accepted

the said judgment and no further proceedings were filed by the SMC

against the said judgment. Hence, the petitioner is also entitled to

receive interest at least at the said accepted rate of interest being

12% by respondent-Municipality. It is submitted that the levy of

betterment charges is not only bad but unjust, improper,

unreasonable and erroneous inasmuch as widening of said already

existing 50 feet road to 60 feet road has not added any further air

and light facilities or appreciated value of remaining property of the

petitioner. On the contrary, with said widening the petitioner has

lost valuable property under compulsory acquisition. If has reduced

the property to be occupied, used and owned by the petitioner.

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

Despite the said glaring fact, the respondent Municipality committer

error by levying Betterment Charges that too at the rate of Rs.200/-

per sq.mrt on the remaining property and therefore, the trial Court

properly observed and directed to return said Betterment Charges

with interest to the petitioner. However, in absence of any evidence

being adduce qua any benefits to have accrued to the petitioner by

said acquisition by the respondent Municipality, the Appellate Court

has committed error by giving finding that under section 216(2) of

Act, the respondent Municipality is entitled to recover Betterment

Charges. Said findings is without any evidence on record of the case

and erroneous and therefore the impugned Judgment requires

requires to be quashed and set aside. The lower Appellate Court has

failed to appreciate that the property of the petitioner is already on

existing 50 feet road and out of it some portion came to be acquired

by the respondent Municipality for the purpose of widening the said

existing road further by 10 feet i.e. making 50 feet road to 60 feet.

[5.1] It is submitted that the appellate court has committed error in

not interfering with the market value fixed by the Trial court on the

ground that the market value of the property as calculated earlier @

Rs.14038.51 per sq. m. Is close (near about)amount to market value

shown in Government Jantri @ Rs.15000/per sq/m. That the Trial

Court has taken market value @ Rs.13150.81 per sq. m. As per 1

sale instance and has added Rs.887.70 per sq.m. towards

construction cost for arrivıng at compensation amount. That the

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

appellate Court has erred in holding that the trial court has fixed

market value of property @ Rs.14038.51 Ps. Sq. m. In fact it iss the

amount of total compensation of property arrived at by fixing

market value of land: @ Rs.13150.81 per sq. m. Plus construction

cost of RS.887.70 per sq.m.. It is rightly held that Government Jantri

rate at Rs.15,000/per sq.m. is proper, adequate and reasonable for

fixing market value of said property, the appellate court has

committed error in holding that Market value fixed by Trial Court @

Rs.14038.51 is close to market value shown in Government Jantri.

The Trial Court has fixed market value of said property at

Rs.13150.81 only.

[6] With regards to the interest awarded by the appellate Court at

the rate of 9%, learned advocate for the petitioner has referred to

judgment in Regular Civil Appeal No.30 of 2010, where the appellant

is the Surat Mahanagarpalika and in this judgment, the Appellate

Court has reduced the interest rate awarded by the Reference Court

from 15% to 12% and that the interest rate of 12% was accepted by

the Surat Municipal Corporation and therefore, in the present case,

where the interest rate is reduced to 9% by the appellate Court from

what was awarded by the Reference Court at 15%, is required to be

interfered with.

[7] As against this learned advocate for the respondent-corporation

submits that compensation determined by the SMC is as per market

value of the property and the same is fair and reasonable. The SMC

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

has also considered the compensation taking into consideration all

requisite aspects like sale instance and locality of the acquired

property. The SMC has acquired the land for the public purpose and

therefore the award passed by the SMC is passed taking into

consideration public interest at large. The SMC has further stated

that the petitioner has been benefited by the acquisition of the land

ventilation of the petitioner's property is increased. Not only that,

but the petitioner has been benefited many other facilities therefore

the petitioner not entitled to recover betterment charges from the

amount of compensation and therefore betterment charge

recovered by the petitioner is according to law hence the petitioner

is not entitled to recover betterment charges from the respondent.

[8] The Court has considered the submissions made by learned

advocates and perused the documents placed on record. The first

issue raised before this Court in the petitions during the course of

arguments is that the petitioner has not been given adequate

compensation as the compensation awarded does not contain the

component of compensation towards the existing construction on

the land which was acquired for the road widening.

[9] The other question which is raised is with regards to reduction

in the rate of interest by the appellate forum from 15% awarded in

the Municipal Reference to 9% awarded by the Appellate Court.

    C/SCA/2606/2016                                         JUDGMENT DATED: 20/01/2022



[10]   In   the      present   case,     the     details   regarding        acquisition

proceedings and the compensation awarded at various stages are

already recorded in the preceding paras.

[11] The acquisition was proposed under Section 210 read with

Section 212 of the Act and after following due procedure, an award

was passed by the Commissioner under Section 390 of the Act.

From the record, it appears that while passing the award, all

necessary provisions of law were complied with and there is no

challenge in so far as procedural aspect is concerned.

[12] The Municipal Reference was filed by the claimants on the

ground of inadequate compensation calculated by the

Commissioner while passing the award. The Municipal Reference

was partly allowed enhancing the compensation by taking into

consideration the evidence in the form of sale deeds of surrounding

areas and additional compensation was granted. Alongwith the

compensation, the reference Court also decided upon the rate of

interest by calculating the same at the rate of 15% from the date of

taking of possession. Being aggrieved by the judgment and order of

the Municipal Reference Court, both the Municipal Corporation and

the claimants preferred Regular Civil Appeals. The Surat Municipal

Corporation challenged the judgment and order of the reference

Court for awarding higher rate of interest at the rate of 15% per

annum, whereas the claimants preferred the appeal for not granting

the adequate compensation. Both the appeals were dealt by the

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

appellate forum jointly. While allowing the appeal of the corporation

reduced the rate of interest from 15% to 9%, whereas dismissed the

appeal of the claimants maintaining the compensation awarded by

the Municipal Reference Court.

[13] The Commissioner had awarded compensation of Rs.7689/- per

sq.mtr. The Municipal Reference Court considered the evidence on

record and come to the conclusion that the compensation is

required to be awarded is to be Rs.14038.51 per sq.mtr, thereby

granted additional compensation of Rs.6349.51. The Municipal

Reference Court also granted the compensation with rate of interest

of 15% from the date of taking over the possession i.e. from

01.03.2002. In the appeal, the appellate forum maintained the

compensation at the rate of Rs.14,038.51 per sq.mtr, but reduced

the rate of interest to 9% and that too payable from the date of

order of the reference Court i.e. from 23.09.2010.

[14] The Court first deals with the compensation arrived at by the

Reference Court and confirmed by the appellate Court. The

Municipal Commissioner had considered the rate of compensation

by considering the value of the land at Rs.7689 per sq.mtr.. While

challenging such value of the land, the claimants had produced on

record evidence in the form of sale deeds of nearby areas and

claimed that value of the land ought to have been considered at

Rs.23000 per sq.mtr. and in this regard, three sale instances were

placed on record. Over and above, the sale instances, the market

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

rate fixed by the Jantri (Annual Statement of Rates) was also placed

on record which indicated the market price of the land in the area to

be 15000 sq.mtr. The Government Jantri of the property situated in

city survey No.278/A/1/7/3 was placed on record vide mark 3/13.

[15] Thereafter, by relying the decision of the Supreme Court,

proceeded to hold that every kind of land is required to be

compensated, accepted the principal of compensating the claimant

for the purpose of construction and accepted an amount of

Rs.887.70 per sq.mtr as compensation for the construction.

However, inspite of considering the Jantri rate at the rate of 15000

per sq.mtr., the Reference Court proceeded to consider

compensation at the rate of Rs.13,150.81 to be appropriate rate of

compensation by placing reliance on sale instances which was

produced vide mark 3/8.

[16] The logic for treating Rs.14,038.51 per sq.mtr,, to be adequate

compensation by considering the sale instances and adding the

compensation for existing construction to be adequate as it is

coming to Rs.14,038.51 per sq.mtr. which is the figure very near to

the Jantri price fixed by the Government at the rate of 15000/- per

sq.mtr. This in the opinion of the Court is an error which has crept

in. In the opinion of the Court, the Government Jantri placed on the

record would reflect the true and correct market value as against

the sale instances which were also placed by the petitioner on

record. There is nothing brought on record by the corporation to

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

contend that the reliance on the sale instances would be more

appropriate than the market rate as per the Government Jantri and

therefore, the logic placed by the Reference Court in considering the

value as per the sale instances, adding the cost of construction per

sq.mtr and holding such valuation being near to the Government

fixed Jantri would actually result in not considering the component

of the compensation towards existing construction which otherwise

was treated at the rate of Rs.887.70 per sq.mtr.

[17] The compensation for the existing construction has to be

awarded is a settled position of law and is not disputed by the

respondent-corporation. The reason for awarding such

compensation obviously is because the individual who losses his

portion of land for the purpose of road widening will also have to

loose construction on which such individual would have made some

investment. Not only that, but having reduced such investment to

"Zero", will also have to make further investment to make over loss

of construction area for which again an individual have to make

investment in monetary terms. Therefore, separate compensation

for the loss of construction over the land acquired for road widening

is an acceptable norm. The only issue is that on one hand, the

Municipal Reference Court as well as Appellate Court considered this

principal, but adding some cost only to the value of the land arrived

at on the basis of sale instance No.1 and by adding these two

figures, accepted the total compensation to be adequate since it

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

was near to the Government Jantri. The Jantri Exh.3/13 would only

consist of the value of open land and would not consist of the

enhanced compensation of the land on the basis of the construction

existing on such land and therefore, though principally the

compensation calculated by the Reference Court and the Appellate

Court may appear to be within the frame work, but cannot be

treated to be a adequate compensation. The Court therefore, holds

that adequate compensation is reacquired to be considered at

Rs.15000/- plus Rs.887.70 per sq.mtr, which is the value of the

construction on the land and total value of the land the construction

is 15,887.70 per sq.mtr. and therefore, the petitioner is entitled to

additional compensation of Rs.1849.19 per sq,mtrs.

[18] With regards to the argument for the rate of interest, the Court

has taken into consideration the issue of interest in two aspects. The

first being the rate of interest and other being the date from which

such rate of interest is to be calculated. In so far as the rate of

interest is concerned, the Reference Court has awarded the rate of

15% interest from the date of taking the possession which was

reduced by the appellate Court to 9%. Not only that, the appellate

Court has also made the rate of interest applicable from the date of

order of the Reference Court i.e. from 23.09.2010.

[19] The only submission made by the petitioner is that the

respondent-corporation in one of the proceedings of similar kind of

acquisition for road widening has accepted the award of the

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

Appellate Court, which has reduced the interest from 15% per

annum to 12% per annum and therefore, in the present case, the

interest rate of 9% granted by the appellant Court may not be

enhanced to at the rate of 15% as granted by the Reference Court,

but at least should be increased to 12%. The proceedings under the

BPMC Act are governed by the separate statute which is different

from the provisions of Land Acquisition Act, where the rate of

interest is provided under the acquisition itself. The proceedings of

acquisition under the BPMC Act will have to be governed by the

Code of Civil Procedure as provided for under Section 434. Section

434 of the Gujarat Provincial Municipal Corporation Act provides for

application of Civil Procedure Code and Sub-Section 2 provides for

application of the same to all other matters for which no specific

provision has been made under this Act which shall be governed by

such Rules, as the State Government may from time to time make

after consultation with the High Court. There is no provision with

regards to the interest in GPMC however, Section 34 of the CPC

would apply which provides for the rate of interest, not exceeding

6% per annum. However, as the corporation is not challenging the

rate of interest as prescribed by the appellate Court, the Court is not

inclined to interfere with to change the rate of interest. On the

challenge made by the claimants to enhance the rate of interest

from 9% to 12% or 15%, no interference is called for in so far as the

rate of interest is concerned.

C/SCA/2606/2016 JUDGMENT DATED: 20/01/2022

[20] With regards to the aspect of period of applicability of the rate

of interest, the relevant date, as per the opinion of the Court, would

be the date on which the possession is taken over which, in the

instant case is 01.03.2002 till the date of taking of possession. The

reason for interfering to the limited extent is the Reference Court

has granted the rate of interest from the date of taking the

possession by assigning cogent reasons however, when the

appellate Court reduced the period from the date of taking over the

possession to the date on which the Reference Court had

pronounced the judgment and order dated 23.09.2010, no reasons

had been adduced in doing so and therefore, by maintaining the

judgment and order in this regard by the Reference Court, this Court

is of the view that the rate of interest of 9% may be applicable from

the date of taking over of possession. The petitioner is therefore

entitled to receive additional compensation of the Rs. 1849.19/- with

interest at the rate of 9% from the date of taking of possession of

the lands of petitioner.

[21] The respondent corporation has made a feeble attempt to

argue that the nomenclature in the petition indicates the petition

being filed under Art.227 of Constitution of India and therefore the

scope of interference for this Court is limited. in view of the

discussion in the foregoing paras it is apparent that the Judgment

and Order of the Appellate Court is final and there is no statutory

provision to agitate the grievance. moreover, the error is committed

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by the subordinate Court where on one hand has accepted on

record the evidence of Govt Jantri to decide the market value but

does not take the same in consideration while giving weightage to a

sale instance. therefore the court deems it fit to interfere.

[22] With the aforesaid extent, the petitions stand allowed. Rule is

made absolute to the aforesaid extent.

[23] In view of the order passed in the main matter, the Civil

Application No.1 of 2019 in Special Civil Application No.2606 of

2016 does not survive. Hence, the Civil Application stands

disposed of.

(A.Y. KOGJE, J) SIDDHARTH