The Special Land Acquisition ... vs Malek Rasulbhai Nizambhai
2023 Latest Caselaw 4200 Guj

      C/FA/1619/2017                               JUDGMENT DATED: 08/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1619 of 2017
                                    With
                       R/FIRST APPEAL NO. 1620 of 2017
                                    With
                       R/FIRST APPEAL NO. 1700 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

==========================================================

1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
           THE SPECIAL LAND ACQUISITION OFFICER, & 1 other(s)
                               Versus
                     MALEK RASULBHAI NIZAMBHAI
==========================================================
Appearance:
MR JAY TRIVEDI, AGP for the Appellant(s) No. 1,2
MR ANKUR KIRI, ADVOCATE for MR AV PRAJAPATI(672) for the
Defendant(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 08/06/2023

                         COMMON ORAL JUDGMENT

1. Heard learned AGP Mr. Jay Trivedi for the appellant-State and

C/FA/1619/2017 JUDGMENT DATED: 08/06/2023

learned Advocate Mr. Ankur Kiri for learned Advocate Mr. A.V. Prajapati

for the respondents.

2. Considering that the present first appeals relate to lands which have

been acquired from the very selfsame village for the very selfsame project

and whereas the Notifications under Sections 4 and 6 of the Land

Acquisition Act have also been issued almost at around the same time, this

Court, with consent of the parties, deems it appropriate to decide all the

three first appeals by the present common judgment.

3. Brief facts as much as are required for deciding these appeals are set

out herein below :

First Appeal Nos. 1619 of 2017 and 1620 of 2017 :

4. The above first appeals call into question common judgment and

award passed by the learned Principal Senior Civil Judge, Kadi, District

Mehsana in Land Acquisition Reference Case Nos. 1345 of 2013 and 1346

of 2013 dated 28.09.2016, which correspond to land bearing Survey Nos.

483/2, 483/1 and Survey No. 511 situated at village Agol, Taluka Kadi,

respectively. Notification under Section 4 of the Land Acquisition Act had

been issued on 31.01.2012 and Notification under Section 6 of the Land

Acquisition Act had been issued on 31.03.2012.

       C/FA/1619/2017                                JUDGMENT DATED: 08/06/2023




4.1     The Land Acquisition Officer had declared his award under Section

11 of the Land Acquisition Act on 28.02.2013, whereby the compensation

was directed to be paid at the rate of Rs.15.88ps per square meter. Being

aggrieved by the same and demanding compensation at the rate of Rs.

1,000/- per square meter, the respondents herein - original claimants had

preferred the references referred to hereinabove.

4.2 By way of the impugned award, the learned Reference Court had

declared the value of the land as Rs. 871.76ps per square meter i.e. awarding

an additional Rs. 855.88ps (rounded of at Rs.856/- per square meter). The

appellant-State being aggrieved by such award has preferred the above

numbered first appeals.

First Appeal No. 1700 of 2017 :

5. The above first appeal calls into question judgment and award passed

by the learned Principal Senior Civil Judge, Kadi, District Mehsana in Land

Acquisition Reference Case No. 1351 of 2013 dated 28.09.2016, which

correspond to land bearing Survey Nos. 897 and 899 paiki 2 situated at

village Agol, Taluka Kadi. Notification under Section 4 of the Land

Acquisition Act had been issued on 17.12.2011 and Notification under

Section 6 of the Land Acquisition Act had been issued on 28.02.2012. The

C/FA/1619/2017 JUDGMENT DATED: 08/06/2023

Land Acquisition Officer had declared his award under Section 11 of the

Land Acquisition Act on 28.02.2013, whereby the compensation was

directed to be paid at the rate of Rs.17.35ps per square meter. Being

aggrieved by the compensation granted by the Land Acquisition Officer and

and further claiming value of the land at the rate of Rs. 1,000/- per square

meter, the respondent herein - original claimant had preferred the above

numbered reference. By way of the impugned award, the learned Reference

Court had declared the value of the land at Rs. 861.02ps per square meter.

5.1 It further appears that the learned Reference Court had declared the

value of the land as referred to hereinabove by relying upon an earlier

decision of the Reference Court dated 21.02.2015 where the amount of

compensation was awarded at the rate of Rs. 856/- per square meter for the

very selfsame village. It also appears that considering the difference of 45

days between the issuance of Section 4 Notification in the judgment relied

upon by the learned Reference Court in passing the impugned decision and

the Section 4 Notification in the instant case, the learned Reference Court

had directed deduction of Rs. 10.74ps. Thus, as per the impugned decision,

the claimant was directed to be entitled for additional payment of Rs. 844/-

per square meter i.e. (Rs. 871.76ps - 10.74ps - 17.35ps). The appellant-State

being aggrieved by such award has preferred the above numbered first

appeal.

C/FA/1619/2017 JUDGMENT DATED: 08/06/2023

6. Learned AGP Mr. Jay Trivedi on behalf of the appellant-State has

made various submissions assailing the impugned awards, but could not

overcome the unsurmountable hurdle of a decision of the Hon'ble Division

Bench of this Court dated 11.04.2023 passed in First Appeal No. 1316 of

2015 and allied matters, more particularly the said first appeals confirming

the judgment and award passed by the learned Reference Court dated

21.02.2015 which had been relied upon by the learned Reference Court in

passing the impugned awards.

7. On the other hand, learned Advocate Mr. Ankur Kiri for learned

Advocate Mr. A.V. Prajapati for the respondents would submit that the

learned Reference Court while passing the impugned awards had relied

upon the judgment and award dated 21.02.2015 passed by the very same

Reference Court with regard to lands acquired at Village Agol i.e. the very

village and for the purpose of constructing a canal by the Sardar Sarovar

Narmada Nigam Limited, i.e. the very same purpose for which the present

lands have also been acquired. Learned Advocate would submit that since

the Hon'ble Division Bench of this Court has confirmed the judgment and

award, relying upon which the impugned decisions have been passed and

whereas since it does not appear that the said decision has been challenged

before the Hon'ble Apex Court as on date, therefore observations in the

said decision being squarely applicable to the facts of the present cases,

C/FA/1619/2017 JUDGMENT DATED: 08/06/2023

therefore relying the said decision, the present first appeals may be

dismissed by this Court.

8. Considering the submissions made by the learned Advocates for the

parties and more particularly having regard to the fact that prima facie the

above referred judgment of the Hon'ble Division Bench appears to be

covering the issue in question, therefore this Court deems it appropriate to

decide these first appeals without any reference to Order 41 Rule 31 of the

Code of Civil Procedure.

9. Perusal of the impugned decisions would reveal that the learned

Reference Court has relied upon the reasoning adopted by the learned

Reference Court in passing judgment and award dated 21.02.2015 in Land

Acquisition Reference Cases No. 1458 of 2013 and allied cases. It also

appears that the very same decision has been confirmed by the Hon'ble

Division Bench of this Court vide decision dated 11.04.2023 in First Appeal

No. 1316 of 2015 and allied matters. Relevant observations of the Hon'ble

Division Bench, more particularly at Paragraph Nos. 5 to 8 being relevant

for the present purpose are reproduced hereinbelow for benefit.

"5. We have perused the evidence, which has been pointed out before this Court as well as considered the submissions advanced by learned advocates for the respective parties at length. The facts, as noted, with regard to the acquisition of land at Village-Agol, Taluka-Kadi, District-Mehsana, are not in

C/FA/1619/2017 JUDGMENT DATED: 08/06/2023

dispute. The fate of the First Appeals hinges on Exh.13 to 22, i.e. the sale instances dated 19.9.2011 on which the claimant placed reliance, which are four months prior to the date of publication of Section 4 Notification i.e. on 31.1.2012. The claimants, in support of their case, have placed reliance on such registered documents of very same village by which the lands have been purchased. Witness in support of such Sale Deeds has been examined below Exh.24 and it is not in dispute that all the Sale Deeds are registered Sale Deeds. As per the deposition of witness below Exh.24, such Sale Deeds, which are registered have been proved and, hence, the contention raised by the Land Acquisition Officer before the Reference Court of not proving the Sale Deeds, has been negatived by the Reference Court by examining the witness below Exh.23.

6. The issue, which requires deliberation by this Court is whether the Reference Court has fallen in error or not in considering sale instances, which are prior to four months of issuance of Notification under Section 4 of the Act. It is not the case of the acquiring body, either before this Court or before the Reference Court, that the Sale Deeds which are entered prior to four months from the publication of Section 4 Notification are in any manner, executed only for the purpose of defeating the price of acquisition or for claiming enhanced compensation. No evidence is led before the Reference Court that such Sale Deeds are only entered in order to frustrate the compensation awarded by acquiring body and, hence, while examining the judgment and award of the Reference Court in First Appeals, we cannot delve into such question of fact, which is raised before this Court, in absence of any contention raised before the Reference Court in this regard. Thus, in our opinion, sale instances is the best evidence which has been precisely relied by the Reference Court for determining the amount of compensation.

7. With regard to second aspect of discarding evidence of the judgment and award dated 12.3.2012 passed in Land Acquisition Reference Case No.1280 to 1292 of 2003 relating to the land acquired of the very same village, this Court has perused the said award. Bare perusal of the award reveals that

C/FA/1619/2017 JUDGMENT DATED: 08/06/2023

while placing reliance on the earlier award passed in Land Acquisition Reference Case No.1280 of 2003 to 1292 of 2003, which was decided by the judgment and award dated 19.2.2008, for the lands which have been acquired of the very same village, the Section 4 Notification was published on 7.12.1999. In the said case, being Land Acquisition Reference No.939 of 2009 to 961 of 2009, which has been decided by judgment dated 12.3.2012, Section 4 Notification was published on 1.6.2005. In juxtaposition to the aforesaid notifications to the Notification issued in the present case under Section 4 of the Act on 31.1.2012, it can be noticed that there is a time gap of eleven years and seven years respectively from the Notification dated 31.1.2012 and the publications of Notification dated 7.12.1999 and 1.6.2005. At this stage, it would be apposite to refer to the observations made by the Apex Court in the case of Ramjibhai Jivanbhai Patel (supra), wherein Supreme Court has held thus:-

"12. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisition), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on-sale transactions/acquisitions precedes the subject acquisition by only a few years, that is upto four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the `rate' of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase."

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8. The Apex Court has categorically held that normally recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisition), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood, such method is reasonably safe. However, there has to be gap of four to five years while placing reliance on such transactions and beyond that it would be unsafe, even if it relates to a neighbouring land. Thus, the judgment on which the acquiring body has placed reliance, pertains to such acquisition of land for which Section 4 Notification has been issued on 7.12.1999. The Reference Court has while placing reliance on the judgment of the Apex Court in the case of Ramjibhai Jivanbhai Patel (supra) and, in other judgments, on a similar issue, has precisely discarded the evidence of the judgments and award on which reliance has been placed by the acquiring body. Thus, the only evidence which was available before the Reference Court was that of sale instances Exh.13 to 22 and, accordingly, Reference Court has considered average rate of Rs.945/- per sq.mtr. and deducted 10% from the said amount i.e. Rs.94.50 and accordingly, fixed an amount of Rs.850.50 per sq.mtr., for deciding the value of acquired land on the substratum of date of sale deeds. After determining the said amount, Reference Court has thereafter granted requisite statutory interest, which we do not find faulty or inappropriate and, hence, we are of the considered opinion that the judgment and award passed by the Reference Court does not suffer from any infirmity or illegality, which would require interference by this Court. Hence, the First Appeals fails and the same are dismissed. Record and Proceedings be sent back to the concerned Court forthwith."

10. Considering the above observations of the Hon'ble Division Bench

and also considering that the said decision has not been challenged by the

appellant-State till date and also having regard to the fact that the said

C/FA/1619/2017 JUDGMENT DATED: 08/06/2023

decision confirms a judgment, based upon which the present impugned

awards have been passed, in the considered opinion of this Court, no case

is made out by the appellant-State for interference. Hence, these appeals are

disposed of as dismissed.

11. The learned Reference Court is directed to release the balance

amount as and when such an application is made by the respondents-

claimants.

(NIKHIL S. KARIEL,J) BDSONGARA