Gujarat High Court
State Of Gujarat vs Kamdaben Vinodbhai Gamit on 17 April, 2023
Bench: A.S. Supehia
C/FA/2390/2017 ORDER DATED: 17/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2390 of 2017
With
R/FIRST APPEAL NO. 2391 of 2017
With
R/FIRST APPEAL NO. 2392 of 2017
With
R/FIRST APPEAL NO. 2393 of 2017
With
R/FIRST APPEAL NO. 2394 of 2017
With
R/FIRST APPEAL NO. 2395 of 2017
With
R/FIRST APPEAL NO. 2396 of 2017
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STATE OF GUJARAT & 2 other(s)
Versus
KAMDABEN VINODBHAI GAMIT
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Appearance:
MR. JAY MEHTA, LD. ASST. GOVERNMENT PLEADER for the Appellant(s)
No. 1,2,3
MR NIKUNT K RAVAL(5558) for the Defendant(s) No. 1
VIDIT S SHARMA(7365) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 17/04/2023
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. This group of first appeals arise out of the judgment and
award dated 16th January, 2014 passed by the learned Principal
Senior Civil Judge, Vyara, District: Tapi in Land Reference Case
Nos.137 of 2012 to 147 of 2012, whereby the Reference Court
has awarded additional compensation of Rs.417/- per square
meter for the land acquired of village Kanpura, Taluka: Vyara,
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District: Tapi by the appellant-State for construction of Ukai
High Level Cantor Canal, for which, notification under Section
4 of the Land Acquisition Act was published on 17 th April, 2008
and notification under Section 6 of the Act was published on
19th February, 2009. The Land Acquisition Officer offered the
compensation at Rs.2800/- per ARE, i.e, Rs.28/- per square
meter for the acquired lands of the claimants. Being
aggrieved, the claimants filed the applications, which
culminated into reference proceedings. The claimants claimed
compensation at Rs.1000/- per square meter. After
appreciating the oral as well as the documentary evidence and
the law enunciated by the Apex Court as well as by this Court
in various decisions, the Reference Court has awarded an
additional amount of compensation at the rate of Rs.417/- per
square meter along with the statutory interest. The same has
given rise to the present first appeals.
2. Learned AGP Mr. Jay Mehta appearing for the acquiring
body has submitted that the Reference Court has fallen in error
in awarding the enhanced compensation without appreciating
the fact of quality of fertility of the acquired land as also the
development of the area. It is submitted that the Reference
Court has fallen in error in considering the sale deeds below
Exh.31 for granting the additional compensation. It is
submitted that the Reference Court should have ascertained
that the area of the sale instances relied upon by the claimants
was comprising of 97.52/- square meters in comparison to the
acquired land of 23,978/- square meters. Thus, it is submitted
that the impugned judgment and award may be quashed and
C/FA/2390/2017 ORDER DATED: 17/04/2023
set aside.
3. In response to the aforesaid submissions, learned
advocate Mr. Nikunt Raval appearing for the claimants has
submitted that the impugned order does not require any
interference since the amount of additional compensation as
awarded by the Reference Court is appropriately fixed and
awarded. Learned advocate Mr. Raval has submitted that, in
fact, there were six sale instances, on which, the claimants
have placed reliance and out of such sale instances, the lowest
one at Exh.31 dated 22nd May, 2005 is only being relied upon.
It is submitted that there were other sale instances which
showed the higher amount of sale of the lands of the very
same village, the same is not considered by the Reference
Court. While placing reliance on the Division Bench decision
dated 21st September, 2011 passed in First Appeal No.1134 of
2004 and allied matters, Mr. Raval has submitted that the
Reference Court has determined the additional compensation
by deducting 60% of the amount from the sale instance at
Exh.31. Thus, it is submitted that the impugned judgment and
award does not require any interference.
4. Lastly, it is submitted by learned advocate Mr. Raval that
in some of the judgments and awards being L.A.R. No.137 of
2012, L.A.R. No.138 of 2012, L.A.R. No.142 of 2012 and L.A.R.
No.146 of 2012, the State has accepted the judgment and
award, and if any order is passed in the present first appeal
altering the amount of additional compensation the same
would be in conflict with the compensation which is already
C/FA/2390/2017 ORDER DATED: 17/04/2023
accepted by the State Government. Thus, it is submitted that
the judgment and award may not be interfered with.
5. We have perused the impugned judgment and award. It
is not in dispute that for the land acquired by the appellant-
acquiring body at village Kanpura, Taluka: Vyara, District:
Tapi, Section 4 notification under the Act was issued on 17 th
April, 2008 and Section 6 notification was issued on 19 th
February, 2009. The acquisition of land culminated in
reference proceedings as recorded herein above. The
Reference Court, after appreciating the oral as well as the
documentary evidence, has awarded an additional
compensation of Rs.417/- for the acquired land.
6. The claimants, in support of their claim of Rs.1000/- per
square meter, has placed reliance on six sale instances of the
very same village, of which, the land is acquired.
7. The Reference Court has considered the sale instance at
Exh.15 dated 1st February, 2005 for non-agricultural land with
construction. The sale instance consists area of 148.65 square
meters and the value of such land of the said sale instance is
Rs.2018/- per square meter. The Reference Court has also
considered Exh.16, i.e, sale instance dated 8 th June, 2005 for
198.54 square meter of non-agricultural land with construction
and the value of the land per square meter as per the said
sale instance is 5036/- per square meter. Another sale
instance at Exh.17 is of 25 th February, 2005 for open non-
agricultural land consisting area of 94.33 square meters and as
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per the said sale instance, the value is 3350/- per square
meter. The next sale instance considered by the Reference
Court is at Exh.18 dated 27th July, 2006 for open non-
agricultural land comprising the area of 144.00 square meters
and the value of such land is 1044 per square meter. The
another sale instance considered by the Reference Court is
at Exh.31 dated 22nd May, 2005 comprising the area of 102.87
square meters at the value of Rs.856/- per square meter. The
last sale instance, on which, reliance is placed by the claimant
and considered by the Reference Court is at Exh.32 dated 17 th
January, 2007 comprising the area of 97.52 square meters and
the value of such land is Rs.1015/- per square meter.
8. Though the aforesaid six sale instances are considered,
however, while determining the final additional compensation,
the Reference Court has relied upon the sale instance at
Eh.31 which is having the lowest value of the land, i.e., Rs.856
per square meter. The said land is an open non-agricultural
land, for which, the sale instance has been executed and the
area is 102.87 square meters. The Reference Court,
thereafter, has deducted 60% towards smallness, development
and other factors and arrived at Rs.346/- per square meter and
granted 30% rise for the difference of period of sale deed and
Section 4 notification have valued a land at Rs.445 per square
meters. After deducting Rs.28/- already paid by the Special
Land Acquisition Officer under Section 11, an additional
compensation at Rs.417/- is awarded. The Trial Court, while
determining the additional compensation, has observed thus;
"23. Looking to the above mentioned case law as
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well as the evidenced on record, it is very clear that
the land under acquisition are within the municipal
limits of the Vyara Nagarpalika. Judicial notice is
taken of the same. Further, the lands under
acquisition are also abutting a National Highway and
a reasonable amount of development appears to
have been carried out. Looking to the evidences on
record inclusive of the sale deeds produced at
Exh.15, 16, 17, 18 and 31 and 32, it appears that
there is development in terms of roads, electricity
and water supply. The village can be said to be well
developed as being in the vicinity of a fully
developed city i.e. Vyara. However, there appears to
be scope for further development in terms of
development of roads, infrastructure etc. Therefore,
deduction for development charges would be
required to be made in the present case as well.
24. Sale deeds are produced on the record of the
proceedings, and are uncontroverted by the Ld.
Government Pleader on behalf of the State, since
the same are forming a part of Government records.
Looking to the same two sale deeds are for the
neighboring city of Vyara being sale deeds produced
at Exh.16 and 17, dated 08.06.2005 and
25.10.2005 respectively. The same, in this Court's
opinion cannot be taken into consideration since
they are of a fair more developed area within city
and also due to the fact of the sale deed produced
at Exh.16 being for land with construction. The said
two sale deeds therefore reflect the higher sale
price of Rs.5037/- per Sq. Mtr. (total sale
consideration of Rs.10,00,000/- for an area of
198.54 sq. mts.) and Rs.3350/- per sq. mtr. (total)
sale consideration of Rs.3,16,000/- for an area of
94.333 sq. mts) respectively, hence the same sale
deeds cannot form basis to ascertain the fair market
value of the lands acquisition. The rest of the sale
deeds produced at Exh.15, 18, 31 and 32 are of the
same area i.e. of the village Kanpura. The sale deed
produced at Exh.15 reflects price of Rs.2018/- per
sq. mtr. (total) sale consideration of Rs.3,00,000/-
for an area of 148.645 sq.mts) also cannot be taken
C/FA/2390/2017 ORDER DATED: 17/04/2023
into consideration since the same is for plot with
construction and therefore the same is also not
taken into consideration. However, the remaining
three sale deeds for open land. While the sale deed
at Exh.18 dated 27.07.2006 reflects purchase price
of Rs.1100/- per sq. mtr. (total) sale consideration of
Rs.1,58,400/- for an area of 144 sq. mts.) whereas
the sale deeds at Exh.32 dated 17.01.2007 and
Exh.31 dated 22.06.2005 reflect a price of Rs.1015/-
per Sq. Mtr (total) sale consideration of Rs.99,000/-
for an area of 97.52 sq. mts) and 856/- per sq. mtr.
(total) sale consideration Rs.88,100/- for an area of
102.87 sq.mts) respectively, of the three
aforementioned sale deeds, the sasle deed
produced at Exh.31 is of greater relevance, since
the same is, for an area close to the lands under
acquisition. Further the rates for purchase as
reflected in the same sale deed is also quite
reasonable, and of the sale deeds produced on
record appears to be most reasonable, and the
same is of reasonable time prior to the acquisition
proceeding, so the rates reflected cannot be
presumed to be improperly made up or exaggerated
due to acquisition or construction of canal and the
same is accordingly taken into consideration.
Therefore, the rate of Rs.856/- per sq. mtr reflected
in the sale deed dated 22.06.2005 is found to be
worth taking into consideration. In my view an
overall deduction of 60% is required to be made
from the said base rate towards two main factors,
one of the factor is of development charges and the
other factor shall be on account of the size of the
plots i.e. the lands in sale deed are smaller than the
area under acquisition, as also since the land in the
sale deed is developed land being residential.
Therefore, from the rate of Rs.856/- an amount of
60% is required to be deducted towards all the
aforementioned factors. Therefore, a base rate of
Rs.342/- per Sq. Mtr for the year 2005 i.e. found to
be reasonable. On the same a price increase of 10%
per year, in light of various precedents set by the
Hon'ble Supreme Court, has to be taken into
consideration for increase for a period of three years
C/FA/2390/2017 ORDER DATED: 17/04/2023
i.e. total increase of 30%. Therefore, the rate for the
year 2008 i.e. the year of which notification under
section 4 of the act was issued, would be 30%
increase on amount of Rs.342/- per sq. mtr. i.e.,
total basic rate can be considerate to be Rs.444.60/-
per sq. mtr. The same can be further rounded out to
an amount of Rs.445/- per sq. mtr. Therefore, the
basis rate of compensation and the fair market
value is to be set at Rs.445/- per sq. mtr. on the
basis of the aforementioned consideration. Hence, 1
fix the actual market price of the present acquired
lands at the rate of Rs.445/- per sq. mtr., which
would be just and proper in the interest of justice.
Therefore, after deducting the amount already paid
to the claimants vide award i.e, Rs.28/- per Sq. Mtr,
the claimants are entitled to get the amount of
additional compensation at the rate of Rs.417/- per
Sq. Mtr. for their acquired lands instead of the
amount as claimed by them. Hence, I decide issue
No.1 & 2 partly in the affirmative."
9. The Reference Court has also placed reliance on the
judgment of the Division Bench of this Court dated 21 st
September, 2011 passed in First Appeal No.1134 of 2004. The
Division Bench, on an analogous issue, has held thus;
"4. In our view, the approach on the part of the
Reference Court of discarding the sale instances on
a mere ground that they were pertaining to non-
agricultural land cannot be countenanced. It is by
now well settled that if a comparison is to be made
in the market value of the agricultural land with the
non-agricultural land it may attract reduction in the
price but to say that since the sale instances are of
nonagricultural lands the same cannot be
considered, in our view, is erroneous and we find
that it was required to be considered by the
Reference Court.
5. The aforesaid takes us to the examination of
the sale instances produced on behalf of the
claimants at Exh.30 and Exh.31 (which are wrongly
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typed in the impugned judgment as Exh.40 and
Exh.41). The first sale instance Exh.30 is dated
21.04.1989 and the another is dated 28.01.1988.
Since the sale instance dated 21.04.1989 is of the
recent past, inasmuch as the notification under
Section 4 of the Act in the present case has been
published on 01.06.1989, the same should be taken
into consideration for the purpose of considering
the market value of the lands in question. The
perusal of the document at Exh.30 of the said sale
instance shows that the consideration is Rs.37,000/-
and the area of the land is admeasuring 268-30-50
sq.mtrs., if rounded off, 269 sq.mtrs. Therefore, per
sq.mtr. the price would come to Rs.137/-. However,
it appears that in the impugned judgment the
Reference Court has wrongly mentioned as
Rs.115/sq.mtr. It further appears from the sale deed
at Exh.30 that the land was located at Kalol Co-
operative Housing Society Limited and it was the
full-fledged developed society and nearby the plot
the construction of the other houses were also there
and the said aspect is apparent from the boundary
shown of the plot. It has also come in evidence
before the Reference Court in the cross-
examination of the original claimants that the
claimants had admitted that the lands are located
at 2 Kms. distance from Kalol. Such would show that
the lands, though located in the revenue limits of
Kalol, are slightly away from the city limit and
though may be adjacent to the land of Kalol Co-
operative Housing Society Limited. The another
aspect is that the sale instance, upon which reliance
has been placed on behalf of the claimants by
showing the document at Exh.30 is of the area of
269 sq.mtrs., whereas the acquisition in the present
case, even if considered in individual holding of the
each claimant, it is in any case more than 12-13
times. Considering the aforesaid we find that in any
case for non-agricultural factor the deduction would
be required to be made of 30% and further the
deduction would be required to be made keeping in
view the small size of the plot and acquisition of the
larger area and the development already made of
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the lands forming part of the sale instance as
against the development of the lands to be made
which are under acquisition. Under the
circumstances, we find that it would be appropriate
to make deduction of 60% from the sale instance so
as to find out approximate market value of the land.
Further 60% of Rs.137/- would come to Rs.82.20
and if deducted from Rs.137/- net amount would
come to Rs.55/sq.mtr. Out of the said amount,
amount of Rs.6/sq.mtr. has already been awarded
as compensation. Under the circumstances, the
claimants would be entitled to the additional
compensation at Rs.49/sq.mtr., if round off, it would
be Rs.50/sq.mtr. As against the same, the
Reference Court has awarded compensation at
Rs.7/sq.mtr. Under the circumstances, the
judgment and award of the Reference Court would
be required to be modified accordingly."
10. Thus, in the considered opinion of this Court, we do not
find that the impugned judgment and awards suffers from any
infirmity, but is in fact, in conformity with the law enunciated
by this Court. It is also not in dispute that in some of the land
reference cases being L.A.R. No.137 of 2012, L.A.R. No.138 of
2012, L.A.R. No.142 of 2012 and L.A.R. No.146 of 2012, the
State Government has accepted the award and is
unchallenged.
11. Under the circumstances and in light of the aforesaid
analysis, all the first appeals fail and are hereby dismissed.
Record & Proceedings to be sent back to the concerned trial
court. No order as to costs.
(A. S. SUPEHIA, J)
(DIVYESH A. JOSHI,J)
VAHID
