Gujarat High Court
Deputy General Manager vs Prajapati Mafabhai Vanabhai on 7 February, 2023
Bench: A.J.Desai
C/FA/612/2016 JUDGMENT DATED: 07/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 612 of 2016
With
R/FIRST APPEAL NO. 613 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI --Sd/--
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN --Sd/--
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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DEPUTY GENERAL MANAGER
Versus
PRAJAPATI MAFABHAI VANABHAI & 2 others
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Appearance:
MR AKSHAT KHARE(5912) for the Appellant(s) No. 1
MRS SUMAN KHARE(2226) for the Appellant(s) No. 1
MR. ADITYA D. DAVDA, AGP for the Defendant(s) No. 3
MR AV PRAJAPATI(672) for the Defendant(s) No. 1,2
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C/FA/612/2016 JUDGMENT DATED: 07/02/2023
CORAM: HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 07/02/2023
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN)
1. The present appeals have been filed under Section 54 of
the Land Acquisition Act, 1894 (hereinafter referred to as 'the
Act') against the common judgment and order dated 21 st
August, 2015 passed by the learned Principal Senior Civil
Judge, Mehsana in LAR no.3532 of 2003 and 3534 of 2003,
wherein the learned trial Court has awarded additional
compensation of an amount of Rs.85/- per sq. mtr. (excluding
Rs.30/- per sq. mtr. compensation awarded by the Special
Land Acquisition Officer from rate of Rs.118.47/- fixed by the
Court) with solatium @ 30% and 12% of incremental rate over
additional compensation and an interest @ 9% per annum for
the first year and 15% per annum for the remaining years on
the additional compensation amount.
2. It is the case of the appellant - ONGC that for its
artificial lift Sobasan PTYS, the appellant proposed a
permanent acquisition of the land of respondent nos.1 and 2
(original claimants) bearing Survey no.224 admeasuring 1587
sq. mtrs. Situated at village Hebuva, Taluka and District
Mehsana for the public purpose through the respondent no.3 -
Special Land Acquisition Officer of ONGC. In this regard, a
Notification under Section 4 of the Land Acquisition Act, 1894
C/FA/612/2016 JUDGMENT DATED: 07/02/2023
was published on 21st February, 1999 in the Government
Gazette and thereafter, declaration under Section 6 of the Act
was published on 23rd June, 1999. Thereafter, Special Land
Acquisition Officer has declared an award dated 22nd
February, 2001 passed in LAQ Case no.17 of 1998 u/s.11 of
the Act by awarding compensation of Rs.30/- per sq. mtr. For
the acquired land to the original claimants.
2.1 Being aggrieved from the compensation amount
awarded by Special Land Acquisition Officer, the original
claimants accepted the said awarded amount of compensation
under protest and have preferred Land Acquisition Reference
Case nos.3532 of 2003 & 3534 of 2003 before the learned
Principal Senior Civil Judge, Mehsana.
2.2 The original claimants claimed compensation of Rs.500/-
per sq. mtr. before the Reference Court. The said land was
already under temporary acquisition from 23 rd May, 1995 and
monthly rent was paid till 31st December, 2000.
3. Mr. Akshat Khare, learned advocate for the appellant
submitted that the Notification under Section 4 of the Act was
published on 21st February, 1999 and declaration of
permanent acquisition under Section 6 of the Act was made
on 23rd June, 1999.
4. It is also submitted that Special Land Acquisition Officer
has declared the award dated 22nd February, 2001 in LAQ
Case no.17 of 1998 by fixing compensation @ Rs.30/- per sq.
mtr. It is further submitted by Mr. Khare, learned advocate
C/FA/612/2016 JUDGMENT DATED: 07/02/2023
for the appellant that being aggrieved by the award in
reference, the applications were made by the claimants and
by the common judgment dated 21st August, 2015, the
additional compensation of an amount of Rs.85/- per sq. mtr.
(excluding Rs.30/- per sq. mtr. Compensation already awarded
by the Special Land Acquisition Officer from market rate of
Rs.118.47 fixed by the Court) with solatium @ 30% and 12%
of incremental rate over additional compensation and an
interest @ 9% per annum for the first year and 15% per
annum for the rest of the years on the additional
compensation amount was passed.
5. Mr. Khare, learned advocate for the appellant submitted
that the learned Reference Court relying on the decision of
this Court passed in First Appeal no.98 of 2014 of adjoining
village Kadvasan and had adopted the market rate of
Rs.118.47 per sq. mtr. But in actual market rate in First
Appeal no.98 of 2014 was fixed @ Rs.89.03 per sq. mtr. Mr.
Khare, learned advocate for the appellant submitted that in
First Appeal no.98 of 2014, sale instance of land of village
Hebuva which was the village concerned in the said LAR case
nos.3532 of 2003 and 3534 of 2003 was taken into
consideration and in the sale deed market rate was Rs.95.72
per sq. mtr. and after deduction of 40% development charge,
the rate comes to Rs.57.55 as on 19 th June, 1990 and by
adding 10% for market price for 9 years i.e. date of Section 4
Notification 21.02.1999, the market rate will come to
Rs.109.13 per sq. mtr. and deducting Rs.30/- compensation
already awarded by Special Land Acquisition Officer from
109.13, the amount comes to Rs.79.13 per sq. mtrs. As such,
C/FA/612/2016 JUDGMENT DATED: 07/02/2023
there is a calculation mistake committed by the reference
Court to the extent of Rs.5/-, which is a nominal difference in
the amount of award, which is based upon the First Appeal
no.98 of 2014 and therefore, Mr. Khare, learned advocate
requests to allow the appeals by modifying the same to that
extent.
6. Mr. Prajapati, learned advocate for the respondent -
original claimants admits and fairly states that there is a
calculation mistake committed by the Reference Court in
calculating the award particularly to the extent of Rs.5/- only,
which is pointed-out by Mr. Khare, learned advocate for the
appellant and has conceded to that extent.
7. We have heard the submissions of learned advocates for
the respective parties. On perusing the R. & P. and award of
learned Principal Senior Civil Judge, Mehsana dated 28 th
February, 2015 particularly para no.20 thereof, it appears
that the learned trial Judge has relied upon the case of First
Appeal no.98 of 2014, wherein Rs.118.47 per sq. mtr. was
awarded out of which Rs.30/- was deducted as already been
paid as compensation and, therefore, lumpsum amount of
additional compensation shall be Rs.85/- per sq. mtr.
Therefore, the learned trial Judge has fixed the rate @ Rs.85/-
and opted to determine the compensation award @ Rs.85/- per
sq. mtr. by way of additional compensation for the acquired
land.
8. It also appears that in First Appeal no.98 of 2014 market
rate was fixed on the basis of sale instance of land of village
C/FA/612/2016 JUDGMENT DATED: 07/02/2023
Hebuva, which is on record at Exh.42 and in the said sale
deed market value of the land was determined as Rs.57.44 per
sq. mtr. as on 19th June, 1990. On perusing the said sale deed,
it appears that the land was sold @ Rs.95.72 sq. mtr. and after
deduction of development charges, it comes to Rs.57.44 and
by adding 10% of market price rise from the date of Section 4
Notification i.e. 21st February, 1999, market rate after 9 years
in 2008, it would come to Rs.109.13 (Rs.57.44 + Rs.51.69),
thereafter deducting Rs.30/- per sq. mtr. already awarded by
the Special Land Acquisition Officer, the additional
compensation would come to Rs.79.13, which can be rounded
of to Rs.80/- per sq. mtr. As such, the learned Reference
Court has awarded compensation of Rs.5/- in excess, which is
due to the mistake in calculation and such award therefore,
requires modification to that extent.
9. In the result, the present appeals succeeds and partly
allowed. The common judgment and order dated 21 st August,
2015 passed by the learned Principal Senior Civil Judge,
Mehsana in LAR no.3532 of 2003 and 3534 of 2003 is hereby
modified to the extent that the claimant shall be entitled to
get additional compensation of their acquired land @ Rs.80/-
per sq. mtr. with interest on the aggregate amount of
acquired land.
10. As regard to the interest, it is submitted by Mr. Khare,
learned advocate for the appellant that Special Leave to
Appeal no.26817 of 2018 is pending before the Hon'ble Apex
Court, wherein the Hon'ble Apex Court has passed an order
dated 12th October, 2018 regarding the stay of the
C/FA/612/2016 JUDGMENT DATED: 07/02/2023
proceedings on the point of interest u/s. 28 of the Act. It is
also submitted that the interest from the date of publication of
Notification under Section-4 is already been deposited before
the trial Court along with the compensation as awarded. In
this event, it is hereby ordered that in case, if the appellant
succeeds in aforesaid SLP, the appellant shall be entitled for
the refund of the amount of interest, whichever is paid in
accordance with the order of the Hon'ble Apex Court.
11. R. & P. be sent back to the concerned trial Court
forthwith.
Sd/-
(A.J.DESAI, J.)
Sd/-
(RAJENDRA M. SAREEN, J.)
AMAR RATHOD...
