Gujarat High Court
Land Acquisition And Rehabiliation ... vs Kanbi Ravataji Lumbaji on 18 December, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 669 of 2019
With
R/CROSS OBJECTION NO. 218 of 2023
In
R/FIRST APPEAL NO. 669 of 2019
With
R/FIRST APPEAL NO. 670 of 2019
With
R/CROSS OBJECTION NO. 219 of 2023
In
R/FIRST APPEAL NO. 670 of 2019
With
R/FIRST APPEAL NO. 707 of 2019
With
R/CROSS OBJECTION NO. 217 of 2023
In
R/FIRST APPEAL NO. 707 of 2019
With
R/FIRST APPEAL NO. 710 of 2019
With
CIVIL APPLICATION NO. 1 of 2023
(FOR FIXING DATE OF HEARING)
In
R/FIRST APPEAL NO. 710 of 2019
With
R/CROSS OBJECTION NO. 216 of 2023
In
R/FIRST APPEAL NO. 710 of 2019
With
R/FIRST APPEAL NO. 810 of 2019
With
R/CROSS OBJECTION NO. 220 of 2023
In
R/FIRST APPEAL NO. 810 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI : Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
Page 1 of 35
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2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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LAND ACQUISITION AND REHABILIATION OFFICER
Versus
KANBI RAVATAJI LUMBAJI
=======================================================
Appearance:
MR JAYNEEL PARIKH AGP for the Appellant(s) No. 1,2
MR JINESH KAPADIA for MR MAHESH P PATEL(3381) for the
Defendant(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 18/12/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. As the issue involved in all these appeals are
common in nature, based upon the same set of
documents and evidences, all these appeals are
heard together and are being decided by this
common judgment. Therefore, First Appeal
No.710/2019 is considered as lead matter and facts
of said matter are considered while passing
present judgment.
2. All these appeals are directed against the
judgment and award dated 22.09.2017 passed by the
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learned Additional Senior Civil Judge, Deesa in
Land Acquisition Reference Nos.26 to 31 of 2005,
whereby the learned Judge has partly allowed those
cases and awarded additional compensation at the
rate of Rs.333.50 per sq.mtrs. along with solatium
and interest at the rate of 9%.
3. All the above cross objections have been filed by
the original claimants for enhancement of the
claim to the tune of Rs.160/- per sq.mtrs. in
additional to what has been given by the learned
Reference Court.
4. The brief facts leading to filing of the present
appeal are as under,
4.1 That the land of the original claimants
situated at Village : Lakhani, Taluka :
Deesa, District : Banaskantha, came to be
acquired for the public purpose of Spreading
Canal of Sujalam Safalam. Notification under
Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as "the Act" for
short) was issued on 30.06.2004 and
declaration under Section 6 of the Act was
made on 05.01.2005 and the same culminated
into the award under Section 11(1) of the
Act, which was made and declared by the Land
Acquisition Officer on 28.03.2005. The Land
Acquisition Officer by the said award
determined the market value of the land
acquired at Rs.8.50/- per sq.mtrs.
4.2 Being dissatisfied with the said award, the
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respondent along with other land owners
preferred an application as provided under
Section 18 of the Act and the same was
referred to the Reference Court at Deesa,
which came to be numbered as L.A.R Case
Nos.26 to 31 of 2005.
4.3 In the said reference, both the parties have
led oral as well as documentary evidence to
support their claim. The Reference Court,
after appreciation of the evidence on record,
partly allowed the reference application and
determined the market value of the land under
acquisition at Rs.333.50 per sq.mtr and also
awarded all statutory benefits as provided
under Sections 23(1)(a) and 23(2) of the Act.
4.5 Being aggrieved by the same, the appellant -
State has preferred these appeals and for
enhancement of the claim, the original
claimants have filed cross objections.
5. Heard learned AGP Mr. Jayneel Parikh for the
appellant - State and learned advocate, Mr. Jinesh
Kapadia for the respondent - original claimants.
6. Learned AGP Mr. Jayneel Parikh appearing for the
appellant - State has submitted that learned
Reference Court has not properly considered the
material and evidence available on record and
thereby committed an error in passing impugned
judgment and award and granting such compensation.
It is submitted that in fact, despite issuance of
the notice upon the original claimants, they have
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not raised any grievance and/or objections and,
hence, they may not be permitted at this juncture
to raise such claim. It is submitted that though
the original claimants have failed to lead
evidence on record with regard to the fertility of
the lands, agricultural production, expenses
thereof, the learned Judge has passed impugned
order in absence of any concrete material, that
too, merely on the basis of the production of the
revenue record i.e. 7/12 extract, which is
required to be interfered with. It is submitted
that the impugned judgment and award came to be
passed by the learned Judge only on the strength
of oral statements of the original claimants and
there was no supporting evidence to that effect
and thus, the learned Judge has committed an error
while passing impugned judgment and award. It is
submitted that the learned Judge has committed an
error while relying upon the documents produced at
Exhs.45 to 51 as those set of documents are not
properly dealt with by the learned Judge while
passing impugned award. It is submitted that the
Land Acquisition Officer has taken into
consideration the geography of the concerned lands
as well as considered various sale transactions in
the concerned area, however, the said aspect has
not been properly considered by the learned Judge
and thereby committed an error in granting
additional compensation. It is, therefore, urged
that the appeals filed by the State be allowed as
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prayed for and the cross objections filed by the
original claimants be rejected.
7. On the other hand, learned advocate, Mr. Jinesh
Kapadia appearing for the original claimants has
tendered paper book containing relevant documents,
more particularly to Page No.22 of the said paper
book, which is the Valuation Report dated
20.05.2004 of the District Land Valuation
Committee produced at Exh.40 and heavily relied
upon and referred to Clause - 11 and submitted
that for the land bearing Survey No.152 pk.
admeasuring 2000 Sq.Mtrs. of land situated in the
sim of Village : Lakhani, earlier the District
Valuation Committee had fixed an amount of
Rs.400/- per Sq.Mtrs. of land, which was 10%
enhanced considering the price rise in the land
and fixed at Rs.570/-. It is submitted that in
fact, the aforesaid report of the District
Valuation Report is dated 20.05.2004, which is
prior to issuance of the Notification issued under
Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as "Act of 1894). It is
submitted that the lands owned by the original
claimants are situated in developed area and,
hence as per the report of the District Valuation
Committee, the learned Judge ought not to have
deducted 40% amount from the actual amount of
compensation at Rs.570/- relying upon the decision
of this Court in case of Sardar Sarovar Narmada
Nigam Ltd. delivered in First Appeal Nos.2832 to
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2843 of 2006 decided on 09.07.2007. It is
submitted that the lands owned by the original
claimants are irrigated lands and the original
claimants are taking three crops during the year
including commercial crop and, hence, they are
entitled for the compensation as per the report of
the District Valuation Committee. In support of
the said contention, learned advocate has drawn
our attention towards the Village Form No.7/12
produced at Exhs.16-20 as well as the electricity
bill produced at Exhs.21-23 produced along with
the paper book.
8. Learned advocate submitted that the Reference
Court has awarded additional compensation of
Rs.330.50 solely putting reliance upon the
documents produced at Exhs.40 & 41 i.e. the report
of the District Valuation Committee, village :
Lakhani dated 20.05.2004, wherein it is
specifically stated that the price of the land of
land bearing Survey No.152 pk. has been evaluated
and fixed at Rs.510/- per sq.mtr. Learned advocate
further submitted that the said Sujalam Safalam
Canal passes through land bearing Survey Nos.153 &
211 pk. and the said lands are situated adjacent
to the land owned by the original claimants, which
is acquired by the acquiring body. Learned
advocate has taken us through the map of the
village produced on record and submitted that from
the said map, aforesaid fact is clearly found out
and at the time of considering and evaluating the
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market price of the said land, the Reference Court
has rightly considered the fact of the case.
Learned advocate submitted that the land, which
was acquired by the acquiring body was small
parcel of the land situated within well developed
area and the said fact is found out from the
documents available on record and at the time of
appreciating the evidence, the Reference Court has
put reliance upon the decision of this Court in
case of Sardar Sarovar Narmada Nigam Ltd.
delivered in First Appeal Nos.2832 to 2843 of 2006
and deducted 40% from the said amount but the
factual aspect involved in the said case is quite
different than the case on hand. Here in this case
on hand, the land, which was acquired by the
acquiring body, is in fully developed area and,
therefore after acquiring the said land, the
Government need not have to spend money for its
development, whereas the land, which was acquired
by the acquiring body in the reported decision as
stated above was open land and for the purpose of
development of the same of the surrounding area,
the Government will have to wait for certain year
and has to incur huge investment for its
development. Learned advocate, therefore,
submitted that at the time of considering and
evaluating and appreciating the evidence available
on record, the Reference Court has come to a
conclusion that considering the location of the
acquired land, 40% deduction is required to be
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made, whereas the facts of the case on hand is
altogether different. It is, therefore, humbly
urged that 20% deduction is required to be done
instead of 40% and accordingly, impugned judgment
and award be modified and additional compensation
may be awarded.
9. Learned advocate, Mr. Kapadia has put reliance
upon following decisions,
(1) judgment delivered by this Court in case of
Sardar Sarovat Narmada Nigam Ltd. Vs. Patel
Haribhai Manilal, reported in 2007 JX(Guj)
734 (i.e. First Appeal Nos.2832-2843/2006
decided on 09.07.2007);
(2) judgment delivered by this Court in case of
State of Gujarat Through Special Land
Acquisition Office & Anr., Vs. Amaji Mohanji
Thakore, reported in 2010 (3) GLH 447;
(3) judgment of the Hon'ble Supreme Court in case
of Trishala Jain & Anr. Vs. State of
Uttaranchal & Anr., reported in (2011) 6 SCC
47;
10. Referring to the decisions delivered by this
Court, it is submitted that in the aforesaid
decisions, this Court, after considering the
report of the District Land Valuation Committee,
has fixed the valuation of 2000 Sq.Mtr. Government
land of Lakhani village at the rate of Rs.570/-
per Sq.mtrs. and directed to award compensation
accordingly, which in the facts of the present
case, the appellants have been denied to award. It
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is, therefore, urged that the amount of
compensation is required to be re-determined and
is required to be enhanced and, hence, the first
appeals filed by the State may be rejected and the
cross objections filed by the original claimants
be allowed accordingly by modifying the impugned
judgment and award by reducing the deduction from
40% to 20% and thereby directed the authority to
make the payment of remaining amount.
11. We have heard learned advocates appearing for the
parties and also gone through the documents
produced along with the memo of appeal as also
record and proceedings.
12. The facts of the case, which are undisputed, are
that the land of the original claimants came to be
acquired for the public purpose of Spreading Canal
of Sujalam Safalam by following necessary
procedure as required under the law, that too, by
issuing Notification under Section 4 of the Act on
30.06.2004 and declaration under Section 6 of the
Act on 05.01.2005 and, thereafter on appreciation
of evidence available on record, the Land
Acquisition Officer by the said award determined
the market value of the land acquired at Rs.8.50/-
per sq.mtrs. Against which, the original claimants
have filed LAR Case Nos.26 to 31 of 2005 before
the Reference Court at Deesa, where after hearing
the parties and after considering the material
available on record, the Reference Court partly
allowed the references and determined the market
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value of the land under acquisition at Rs.333.50
per sq.mtr. Against the said judgment and award,
the State of Gujarat has preferred appeals for
quashment of the impugned judgment and award,
whereas the original claimants have filed cross
objection for enhancement of the claim.
13. At this stage, this Court would like to put
reliance upon the decisions upon which reliance
has been put reliance.
13.1 This Court in a decision in case of Patel Haribhai
Manilal (supra) has observed in Paragraph No.15 as
under,
"15. The principles governing determination of
market value of lands acquired are well-
settled. In Special Land Acquisition
Officer, Davangere v. P.Veerabhadrappa etc.
etc. - AIR 1984 SC 774, the Supreme Court
has emphasized that the function of the
Court in awarding compensation under the Act
is to ascertain the market value of the land
on the date of notification under Section
4(1) of the Act. What is ruled therein is
that the methods of valuation are (1)
opinion of experts, (2) the prices paid
within a reasonable time in bona fide
transactions of purchase or sale of the
lands acquired or of the lands adjacent to
those acquired and possessing similar
advantages and (3) a number of years'
purchase of the actual or immediately
prospective profits of the lands acquired.
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The Supreme Court has cautioned that
normally, the method of capitalizing the
actual or immediately prospective profits or
the rent of a number of years' purchase
should not be resorted to if there is
evidence of comparable sales or other
evidence for computation of the market
value. Applying these principles to the
facts of the instant case, this Court finds
that the claimants did not lead evidence of
an expert nor enhanced compensation was
claimed on yield basis to enable the Court
to determine the market value of the lands
acquired. The only relevant pieces of
evidence produced by the claimants in the
instant case are the sale-deeds relating to
the grant of Government lands to Anarde
Foundation at Ex.13 and to Umiya Kadva
Patidar Trust at Ex.17 which will now be
examined by this Court."
13.2 This Court in a decision in case of Amaji Mohanji
Thakore (supra) has observed as under,
"20. It is, therefore, submitted that such
valuation made by the Valuation Committee
can be a valid basis for the Reference Court
in deciding the valuation of the land for
the purpose of awarding compensation,
subject to any change in the nature of the
land, character etc. It was, therefore,
submitted that the contention raised by the
learned Addl. Government Pleader may not be
accepted.
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21. In any welfare State, Government cannot have
a dual stand for the same subject. If the
land of a citizen is to be acquired,
Government has to pay the market price of
the land as per the provisions of the Act.
Government cannot contend that it shall not
pay the market price, since as per the Act
it is obligatory on the part of the
Government or the acquiring Body to pay the
market price as per the provisions of the
Act. Similarly when the Government is to
allot the land to the citizen or any
organization, may be for private or public
purpose, it has to be the market price,
unless the allotment is for a specific
public purpose or by way of a separate
class, where a specific concession in the
market price is made permissible. In any
case, where the reduction of the market
price for a specific rate is made
permissible, such would be lesser than the
market price. These cases where the
concession or reduction is to be made, would
not exceed the market price. Therefore, it
is clear that unless the land is allotted at
a concessional price, in normal
circumstances when the Government is to
allot the land to its citizen or to any
body, the price would be the market prices
to be fixed by the competent authority by
the Government. Hence, we cannot countenance
the stand on the part of the learned Addl.
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Government Pleader that if the Government is
to allot the land to any citizen or a body,
higher price shall be fixed as the market
price, whereas if the Government is to
acquire the land belonging to any citizen or
any organization, it shall pay lesser price
of the land. To say in other words, if the
Government is to allot 'A' land belonging to
it to any citizen or to any organization, it
will charge 'B' price, but if the very 'A'
land is belonging to the citizen and the
Government is to acquire under the Land
Acquisition Act, the Government shall pay
price lesser than the 'B' price to the
citizen or the organization. If such is
permitted, in our view, it would result into
discriminatory and arbitrary approach on the
part of the State Government, which cannot
be countenanced by the constitutional Court
in a welfare State. As observed earlier, if
the very 'A' land is acquired belonging to
the citizen by the Government, the
Government would be required to pay the
price, in any case, not less than 'B' price
and to be more specific, Government would be
required to pay the price, in any case, not
lesser than the price fixed by it for the
purpose of allotment of the land to any
citizen or organization, of course, subject
to the change in the nature and character of
the land, if any.
22. Even if the matter is to be examined in
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light of the aspect as to whether the price
determined by the competent authority of the
Government for allotment of the government
land to any citizen or organization can be
said as in exercise of statutory power or
authority of the statute or not, it appears
that the provisions of the Land Revenue Code
are clear. Section 62 under the Bombay land
Revenue Code, 1879 (hereinafter referred to
as 'Code') reads as under :-
"Section 62. Unoccupied land may be
granted on conditions.- It shall be
lawful for the Collector subject to
such rules as may from time to time be
made by the State Government in this
behalf, to require the payment of a
price for unalienated land or to sell
the same by auction and to annex such
conditions to the grant as he may deem
fit, before permission to occupy is
given under section 60. The price (if
any) paid for such land shall include
the price of the Government right to
all trees not specially reserved under
the provisions of section 40 and shall
be recoverable as an arrear of land
revenue."
23. Rule 37 of Gujarat Land Revenue Rules
(hereinafter referred to as the 'Rules')
provides for manner of disposal of
agricultural land, whereas rule 42 provides
for disposal of the land for building and
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other purposes. Rule 37 and Rule 42 read as
under:-
"37. Survey numbers how to be disposed of.-
(1) Any unoccupied survey number not
assigned for any special purpose may,
at the Collector's discretion, be
granted for agricultural purposes to
such person as the Collector deems fit,
either upon payment of a price fixed by
the collector, or without charge, or
may be put up to public auction and
sold subject to his confirmation to the
highest bidder.
(2) In the case of such grants an agreement
in Form F shall ordinarily be taken
from the person intending to become the
occupant.
(3) When the land is granted on inalienable
tenure the clause specified in Form I
shall be added to the agreement.
(4) When the land is granted on impartible
tenure an agreement in Form F(1), and,
when it is also granted in alienable
tenure an agreement in Form I(1), shall
ordinarily be taken from the person
intending to become the occupant.
(5) The declaration below the agreement
shall be subscribed by at least one
respectable witness and by the patel
and village accountant of the village
in which the land is situate."
42. Disposal of land for holding and other
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purposes.- Unoccupied land required of
suitable for building sites or other
non- agricultural purpose shall
ordinarily be sold after being laid out
in suitable plots by action to the
highest bidder whenever the Collector
is of opinion that there is a demand
for land for any such purpose, but the
Collector may in his discretion,
dispose of such land by private
arrangement, either upon payment of a
price fixed by him or without charge,
as he deems fit."
24. The aforesaid shows that as per Rule 37 an
unoccupied land can be granted for
agricultural purpose to any person by the
Collector and such grant of the land can be
either upon the price fixed by the Collector
or by public auction and can be without
charge also. In the same manner Rule 42
provides that the land can be allotted for
non-agricultural purpose by the Collector to
the highest bidder unless the Collector in
his discretion decides to dispose of the
land by private arrangement, either upon the
price fixed by him or without charge.
25. In the present matters, we are not required
to examine the aspect of exercise of the
powers by the Collector without charge or by
private negotiation for disposal of the land
for agricultural or non-agricultural
purpose, therefore, no discussion is
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required on the said aspect, but the in the
present matter, the aspect of power with the
Collector for disposal of the land upon the
payment of the price to be fixed by him
(other than concessional charge) is to be
taken into consideration. If the collector
has to allot the land as per Section 62 read
with Rule 37 or Rule 42 of the Rules, the
same shall be at the price to be fixed by
him. He has to determine the price of such
land before taking decision for allotment of
the land. In the case of Ghunshabhai
Govindbhai Pancholi v State of Gujarat and
Anr., reported in 1995(1) GLH, 792, the
question arose for consideration about the
fixation of the price by the Collector under
Section 62 of the code read with Rule 37 of
the rules and this Court observed that the
Collector has the authority to fix the price
to be paid for the land which he grants to a
person for agricultural purpose and such
price has to be fair, reasonable and just
and should not be arbitrary or whimsical and
he has also to take into consideration the
submissions or the material, which may be
submitted by the allottee or the person, who
is to be allotted the land. Therefore, it is
not possible to accept the contention of the
learned Additional Government Pleader that
when a price is fixed by the Collector for
allotment of the land to any citizen or
organization under the Bombay Land Revenue
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Code read with the Rules, such action for
fixation of the price is not in exercise of
the statutory powers. Be it noted that the
Collector has to exercise the power subject
to general orders of the State Government
for the mode and manner of fixation of the
valuation and the Collector, therefore,
while fixing the market price, the Collector
has to take into consideration the view of
an expert body, which is the Valuation
Committee and thereafter to take final
decision. Therefore, it is not a matter
where the exercise of the power by the
Collector is not in discharge of the
statutory function for fixation of the
market price. At this stage, it may also be
recorded that even under the provisions of
Bombay Tenancy and Agricultural Lands Act,
1948, more particularly Section 43 of the
said Act, while granting permission to
transfer the land, which is held by the
agriculturist, who was originally allotted
the land as agricultural tenant under the
said Act, has to exercise the power for
grant of permission upon payment of the
premium. At the time when the premium is to
be fixed the marked price of the land is to
be ascertained by the Valuation Committee of
the Government and the opinion is to be
considered by the Collector of the valuation
made. Therefore, it is not possible for us
to accept the contention of the learned
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Addl. Government Pleader that the valuation
made by the Valuation Committee of the
Government of the nearby land for the
purpose of allotment of the land to any
citizen by the Collector cannot be taken
into consideration by the Reference Court.
Under these circumstances, the contention of
the learned Addl. Government Pleader
deserves to be rejected, therefore,
rejected.
26. The reliance placed upon the decision of the
Apex Court in the case of Jawajee Nagnatham
v. Revenue Divisional Officer, Adilabad,
A.P. And Others, reported in (1994) 4 SCC,
595; in the case of Land Acquisition Officer
Eluru and Ors. v. Jasti Rohini (Smt.)and
Anr., reported in 1995(1) SCC, 717, are for
the view that the fixation of the valuation
in the valuation register for the stamp Act
purpose cannot form as a basis for
determination of the market value. Such is
not the fact situation in the present case.
27. The Apex Court in the case of Lal Chand v.
Union of India, reported in (2009) 15 SCC,
769 on the contrary at paragraph 44 has
observed as under:-
"44. One of the recognised methods for
determination of market value is with
reference to the opinion of experts.
The estimation of market value by such
statutorily constituted Expert
Committee, as expert evidence can
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therefore form the basis for
determining the market value in land
acquisition cases, as a relevant piece
of evidence. It will be however open to
either party to place evidence to
dislodge the presumption that may flow
from such guideline market value. We,
however, hasten to add that the
guideline market value can be a
relevant piece of evidence only if they
are assessed by the statutorily
appointed Expert Committees, in
accordance with the prescribed
procedure."
31. Taking into consideration the aforesaid, if
the market value is assessed, it appears
that the valuation is on 10.5.2004 of
Rs.200/- per sq. mtrs., for non-agricultural
land allotted by the District Collector by
the Valuation Committee. Therefore, it can
be said that on that day, for agricultural
land at the same Village Kherwa, the price
would be 30% less i.e. Rs.60/- less and the
net valuation would be of Rs.140/- (Rs.200/-
minus Rs.60/-) as on 10.5.2004. As observed
earlier, the Notification under Section 4(1)
of the Act in the present case is on
1.12.2005, i.e. at one year and six months
later to the aforesaid period of valuation.
It is by now well settled that for every
year 10% rise by way of appreciation is to
be considered, but as in the present case
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the period is of one year and six months,
such appreciation would be 15%, which would
come to Rs.21.75/- (rounded off - Rs.22/-).
Therefore, if appreciation of Rs.22/- is
considered with the valuation of Rs.140/-,
it would come to Rs.162/- per sq. mtr.,
being the market price of the land in
question on the date of the Notification.
32. If the impugned judgement and order of the
Reference Court is examined in light of the
aforesaid observations and discussions, it
appears to us that there is no error
committed by the Reference Court in relying
upon the price fixed for allotment of the
land for Water Works Project to the local
authority, but the Reference Court has
committed error in not considering the
aspect that the valuation as was made of the
land in question on 10.5.2004 and the said
valuation is to be considered, keeping in
view the principles, as observed herein
above and the Reference Court has also
totally lost sight of in not considering the
deduction to be made in the nature of the
land allotted for non-agricultural purpose
and the acquisition of agricultural land in
the present case. In our view if the
principles after considering the nature of
the agricultural and non-agricultural land
is considered, as observed earlier, the
appropriate market valuation of the land
would be Rs.162/- per sq. mtrs. As against
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the same, the Land Acquisition Officer has
awarded compensation at Rs.18/- per sq.
mtrs. Therefore, the claimants - respondents
would be entitled for additional
compensation of Rs.144/- per sq. mtrs.,
whereas the Reference Court has awarded
additional compensation of Rs.280/- per sq.
mtrs. Therefore, the judgement and award of
the Reference Court deserves to be quashed
and set aside for awarding additional
compensation exceeding Rs.144/- per sq.
mtrs.
13.3 The Hon'ble Supreme Court in a decision in case of
Trishala Jain (supra) has observed as under,
17. On examination of the present appeals, the
following common questions arise for
consideration of this Court:
I. Whether or not the belting system ought
to have been applied for determination
of fair market value of the acquired
land?
II. What should be the just and fair market
value of the acquired land on the date
of issuance of notification under
Section 4 of the Act?
III. Whether in the facts and circumstances
of the present case there ought to be
any deduction after determining the
fair market value of the land?
IV. What compensation and benefits are the
claimants entitled to?
39. The law with regard to applying the
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principle of deduction to the determined
market value of the acquired land is quite
consistent, though, of course, the extent of
deduction has varied very widely depending
on the facts and circumstances of a given
case. In other words, it is not possible to
state precisely the exact deduction which
could be made uniformly applicable to all
the cases. Normally the rule stated by this
Court consistently, in its different
judgments, is that deduction is to be
applied on account of carrying out
development activities like providing roads
or civic amenities such as electricity,
water etc. when the land has been acquired
for construction of residential, commercial
or institutional projects. It shall also be
applied where the sale instances (exemplars)
relate to smaller pieces of land and in
comparison the acquisition relates to a
large tract of land. In addition thereto,
deduction can also be applied on account of
wastage of land.
40. This Court in the case of Land Acquisition
Officer, Kammarapally Village v. Nookala
Rajamallu [(2003) 12 SCC 334], had also
observed that it is advisable to apply some
deduction on account of exemplars of plots
of smaller size relied upon by way of
evidence by the parties. This is the normal
rule stated by the Court but is not free of
exceptions. Similarly, it is neither
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possible nor appropriate to stricto sensu
define a class of cases where the Court
would not apply any deduction. This again
would be dependant upon the facts and
circumstances of a given case.
42. 20. This Court in the case of Bhagwathula
Samanna & Ors v. Special Tahsildar & Land
Acquisition Officer, [(1991) 4 SCC 506],
stated that it is permissible to take into
account of exemplars of even small developed
plots for determining value of a large tract
of land acquired, if the latter is also
fully developed with all facilities
requiring little or no further development.
In the facts and circumstances of that case
the Court felt that it was not appropriate
to resort to deduction of 1/3rd value of the
comparable sale instances as development
charges.
43. The Court reiterated the general rule that
if market value of a large property is to be
fixed on the basis of a sale transaction for
smaller property, a deduction is to be made
taking into consideration the expenses
required for development of that larger
tract and make smaller plots within that
area and held as under :
"7. In awarding compensation in acquisition
proceedings, the Court has necessarily
to determine the market value of the
land as on the date of the relevant
Notification. It is useful to consider
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the value paid for similar land at the
material time under genuine
transactions. The market value
envisages the price which a willing
purchaser may pay under bona fide
transfer to a willing seller. The land
value can differ depending upon the
extent and nature of the land sold. A
fully developed small plot in an
important locality may fetch a higher
value than a larger area in an
undeveloped condition and situated in a
remote locality. By comparing the price
shown in the transactions all variables
have to be taken into consideration.
The transaction in regard to smaller
property cannot, therefore, be taken as
a real basis for fixing the
compensation for larger tracts of
property. In fixing the market value of
a large property on the basis of a sale
transaction for smaller property,
generally a deduction is given taking
into consideration the expenses
required for development of the larger
tract to make smaller plots within that
area in order to compare with the small
plots dealt with under the sale
transaction. This principle has been
stated by this Court in Tribeni Devi's
case (supra).
11. The principle of deduction in the land
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value covered by the comparable sale is
thus adopted in order to arrive at the
market value of the acquired land. In
applying the principle it is necessary
to consider all relevant facts. It is
not the extent of the area covered
under the acquisition, the only
relevant factor. Even in the vast area
there may be land which is fully
developed having all amenities and
situated in an advantageous position.
If smaller area within the large tract
is already developed and suitable for
building purposes and have in its
vicinity roads, drainage, electricity,
communications etc. then the principle
of deduction simply for the reason that
it is part of the large tract acquired,
may not be justified.
13. The proposition that large area of land
cannot possibly fetch a price at the
same rate at which small plots are sold
is not absolute proposition and in
given circumstances it would be
permissible to take into account the
price fetched by the small plots of
land. If the larger tract of land
because of advantageous position is
capable of being used for the purpose
for which the smaller plots are used
and is also situated in a developed
area with little or no requirement of
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further development, the principle of
deduction of the value for purpose of
comparison is not warranted."
44. It is thus evident from the above enunciated
principle that the acquired land has to be
more or less developed land as its developed
surrounding areas, with all amenities and
facilities and is fit to be used for the
purpose for which it is acquired without any
further expenditure, before such land could
be considered for no deduction. Similarly
the sale instances even of smaller plots
could be considered for determining the
market value of a larger chunk of land with
some deduction unless, there was
comparability in potential, utilisation,
amenities and infrastructure with hardly any
distinction. On such principles each case
would have to be considered on its own
merits.
45 This Court, depending on the facts and
circumstances of each given case, has taken
the view that deduction on account of
expenses of development of the sites could
vary from 10% to 86.33% depending on the
nature of the land, its situation, the
purpose and stage of development. Reference
can be made to the cases of K.S.
Shivadevamma v. Assistant Commissioner and
Land Acqusition Officer, Ram Piari v. Land
Acquisition Collector (LA), Chimanlal
Hargovinddas v. Special Land Acquisition
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Officer, Poona and Hasanali Walimchand v.
State of Maharashtra.
49. The learned Counsel for the claimants relied
upon the judgment of this Court in the case
of Atma Singh v. State of Haryana, to
contend that even if exemplars of small
plots are tendered in evidence, the
deduction cannot be more than 10%. He
contended that the Reference Court as well
as the High Court both have fallen in error
of law in applying the deduction of 20% and
33.33% respectively. In this judgment, this
Court clearly observed that the price
fetched for small plots cannot form safe
basis for valuation of large tracts of land
as substantial area is used for development
of sites by providing various facilities for
which expenses are also incurred; such
amount, which normally would vary from 20%
onwards depending upon the facts of each
case, should be deducted.
50. However, in that case the land had been
acquired for setting up a sugar factory
which, for its efficient running, may also
require part of the land to be used for
construction of residential colonies for the
staff working in the factory. The sugar
factory that was sought to be constructed on
the acquired land was to carry on its
business to make profits. The Court noticed
that earlier the by-products of a sugar
factory like molasses were treated as waste
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and its disposal itself was a problem.
However, with the passage of time and
scientific developments, such by- products
are being used for production of Alcohol and
Ethanol which added to the profits. It was
in these circumstances that Court was of the
view that it was not a case for higher
deduction and discounted only 10% from the
determined market value of the acquired
land. Thus the claimants cannot derive any
advantage to contend that there should not
be any deduction in this case. Reliance by
them was also placed upon the judgment of
this Court in the case of Charan Dass v.
Himachal Pradesh Housing & Urban Development
Authority.
51. In Charan Dass case, the Court was concerned
with the question that whether deduction of
40% from the market value determined by the
High Court towards development charges was
justified or not. This Court held that where
the acquired land falls in the amidst of an
already developed land with amenities of
roads, electricity etc., deduction on this
account may not be warranted. At the same
time it also held that where all civic and
other amenities are yet to be provided to
make the land suitable for building purposes
or when under the local building regulations
setting apart some portion of the lands for
sanctioning common facilities is mandatory,
an appropriate deduction may be justified.
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Referring to the facts of that case, this
Court permitted deduction of 30% as
development charges from the market value of
the land.
14. We have considered the ratio laid down and the
principle enunciated in the aforesaid decisions.
It is found out that the principles governing
determination of market value of lands acquired
are well- settled and at the time of determination
of the compensation, the Hon'ble Supreme Court
issued certain directions as regard the the
methods of valuation to be considered i.e. (1)
opinion of experts, (2) the prices paid within a
reasonable time in bonafide transactions of
purchase or sale of the lands acquired or of the
lands adjacent to those acquired and possessing
similar advantages and (3) a number of years'
purchase of the actual or immediately prospective
profits of the lands acquired. Therefore valuation
made by the Valuation Committee can be a valid
basis for the Reference Court in deciding the
valuation of the land for the purpose of awarding
compensation, subject to any change in the nature
of the land, character etc. If the impugned
judgment and order of the Reference Court is
examined in light of the aforesaid observations
and discussions, it appears to us that there is no
error committed by the Reference Court in relying
upon the price fixed for allotment of the land for
the public purpose of Spreading Canal of Sujalam
Safalam, but the Reference Court has committed
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error in not considering the aspect that the
valuation as was made of the land in question on
20.05.2004 and the said valuation is to be
considered, keeping in view the principles, as
observed herein above and the Reference Court has
also totally lost sight of in not considering the
deduction to be made in the nature of the land
allotted for non-agricultural purpose and the
acquisition of agricultural land in the present
case.
15. From the facts of the case, as stated above, it is
found out that it is the case of the original
claimants that the Valuation Committee has fixed
the valuation of the Government land on
20.05.2004, whereas the Notification under Section
4 of the Act was published on 30.06.2004 i.e.
after the fixation of the valuation of the land by
the Valuation Committee and, hence, they are
entitled for additional compensation, for which,
reliance is put upon the decision of this Court in
case of Patel Haribhai Manilal (supra) as well as
in case of Amaji Mohanji Thakore (supra) and
though the aforesaid facts have been pointed out
before the Reference Court, it has not been
considered and 40% deduction was made instead of
20@, which the original claimants are entitled
for. We have gone through the record and
proceeding and found out that the Reference Court
has considered the report dated 20.05.2004 of the
Valuation Committee. It is found out that the
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Reference Court has correctly evaluated the the
report of the Valuation Committee but at the time
of considering the amount, 40% amount is deducted
from the said amount mentioned in the report
solely on the count that in identical matter in
case of Sardar Sarovar Narmada Nigam Ltd.
delivered in First Appeal Nos.2832 to 2843 of
2006, the Division Bench of this Court has
deducted 40% amount from the price fixed by the
competent authority. It is found out from the
record that in the said matter, the acquired land
was situated in outskirt of the city area, whereas
the present land, which is acquired by the
acquiring body, is situated within the center of
the city and as per the evidence led by the
original claimants, surrounding and vicinity area
of the acquired land is well developed area and in
future, the Government need not have to spend any
amount for the development of the said area,
therefore, basic price value of the said land is
on higher side, therefore, the deduction is
required to be made 20% instead of 40%. We have
gone through the record and proceedings and found
out that the land, which was acquired by the
acquiring body, is small plot and situated within
the center of the city, therefore, we are of the
opinion that the original claimants are entitled
for 20% deduction instead of 40% deduction.
16. We have considered the report of the District
Valuation Committee, village : Lakhani dated
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20.05.2004 produced on record at Exhs.40 & 41
i.e. as well as the Map of village produced on
record. It is found out from the aforesaid
documents that the price of the land of land
bearing Survey No.152 pk. has been evaluated and
fixed at Rs.510/- per sq.mtr. and Sujalam Safalam
Canal passes through land bearing Survey Nos.153 &
211 pk. and the said lands are situated adjacent
to the land owned by the original claimants. It is
also found out from the record that the lands
owned by the original claimants are situated
within well developed area, which would reduce the
expenditure behind the development and, therefore
after acquiring the said land, the Government need
not have to spend money for its development. Thus
considering the above facts of the case on hand,
the original claimants are entitled for deduction
of 20% instead of 40%, which has been done in the
present case.
17. At this stage, it is pertinent to note that we
have also gone through the impugned judgment and
award passed by the learned Reference Court
including the finding given and conclusion arrived
at by the learned Reference Court and found that
except deduction of 40% instead of 20%, there is
no error committed by the learned Reference Court,
which would require interference from this Court.
Hence, rest of the impugned judgment and award
remain unaltered.
18. Therefore in view of the aforesaid observations
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made, First Appeals filed by the State of Gujarat
are hereby dismissed. Whereas Cross Objections
filed by the original claimants are allowed as
prayed for. Therefore, the impugned judgment and
award dated 22.09.2017 passed by the learned
Additional Senior Civil Judge, Deesa in Land
Acquisition Reference Nos.26 to 31 of 2005 is
hereby modified to the extent that instead of
compensation at Rs.333.50, which is already
awarded by the Reference Court, the original
claimants are entitled to get additional
compensation at Rs.160/- per Sq.Mtr i.e. total
compensation at Rs.493.50. Rest of the observation
and direction would remain unaltered. Decree to be
drawn accordingly. Record & Proceedings are sent
back forthwith.
19. Connected application, if any, stands disposed of.
Sd/-
(ASHUTOSH SHASTRI, J.)
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
