Gujarat High Court
Special Land Acquisition Officer Unit 1 vs Parth Kaushikbhai Pandya Is Poa Of Jigar ... on 25 January, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2023
In R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2023
In R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 3 of 2023
In R/FIRST APPEAL NO. 11 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 4 of 2023
In R/FIRST APPEAL NO. 11 of 2023
With
R/CROSS OBJECTION NO. 222 of 2023
In
R/FIRST APPEAL NO. 11 of 2023
With
R/CROSS OBJECTION NO. 223 of 2023
In
R/FIRST APPEAL NO. 11 of 2023
With
R/FIRST APPEAL NO. 21 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2023
In R/FIRST APPEAL NO. 21 of 2023
With
R/CROSS OBJECTION NO. 221 of 2023
In
R/FIRST APPEAL NO. 21 of 2023
With
R/CROSS OBJECTION NO. 181 of 2023
In
R/FIRST APPEAL NO. 21 of 2023
With
R/CROSS OBJECTION NO. 224 of 2023
In
R/FIRST APPEAL NO. 21 of 2023
With
R/CROSS OBJECTION NO. 225 of 2023
Page 1 of 320
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In
R/FIRST APPEAL NO. 21 of 2023
With
R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2023
In R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2023
In R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2023
In R/FIRST APPEAL NO. 22 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2022
In R/FIRST APPEAL NO. 22 of 2023
With
R/CIVIL APPLICATION NO. 2321 of 2022
In
F/FIRST APPEAL NO. 28415 of 2022
With
R/CIVIL APPLICATION NO. 99 of 2023
In
F/FIRST APPEAL NO. 42671 of 2022
With
R/CIVIL APPLICATION NO. 100 of 2023
In
F/FIRST APPEAL NO. 42652 of 2022
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2023
In R/FIRST APPEAL NO. 21 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/FIRST APPEAL NO. 21 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2023
In R/FIRST APPEAL NO. 21 of 2023
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2022
In R/FIRST APPEAL NO. 21 of 2023
Page 2 of 320
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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 ?
==========================================================
SPECIAL LAND ACQUISITION OFFICER UNIT 1
Versus
PARTH KAUSHIKBHAI PANDYA IS POA OF JIGAR ANANTBHAI DESAI
==========================================================
Appearance:
MR.KAMAL TRIVEDI, LD. ADVOCATE GENERAL with MR.VINAY VISHEN,
AGP with MR.PRANAV TRIVEDI, AGP for the Appellant(s) No. 1,2,3,4 in
FIRST APPEAL NO.11 OF 2023, CA 2 OF 2022, CA 2 OF 2023, CA 2 OF
2023, FIRST APPEAL NO.21 OF 2023 with connected CAs, FIRST APPEAL
NO.22 OF 2023 with connected Cas
MR RAJENDRAKUMAR G JOSHI(12690) for the Defendant(s) No. 1,3 in
FIRST APPEAL NO.11 OF 2023 with connected CAs, for the Respondent
no.7 in CA 1 OF 2023 in FA NO.11 of 2023, for the respondent no.2 (s) in
FIRST APPEAL NO.21 OF 2023 with connected CAs, for the appellant in
XOBJ NO.224 OF 2023 in FA 21 OF 2023
MR.MIHIR THAKORE, LD. SENIOR ADVOCATE with MR TARAK
DAMANI(6089) for the Defendant(s) No. 5 in FIRST APPEAL NO.11 OF 2023
with connected Civil Applications, for respondent no.7 in CA 2321 OF 2022,
for respondent no.5 in CA 99 OF 2023 and CA 100 OF 2023, for the
Page 3 of 320
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Respondent no.5 in FA 11 OF 2023, for the Respondent no.9 in CA 1 OF
2023 in FA NO.11/2023, for respondent no.7 in FA No.21 of 2023, for the
appellant in X-OBJ NO.225 OF 2023 in FA 21 OF 2023, for the respondent
no.5 in FIRST APPEAL NO.22 OF 2023 with connected CAs
MR.ASIM PANDYA, LD. SENIOR ADVOCATE for MR UDAYAN P
VYAS(1302) for the Respondent(s) No. 3 in CA 2321 OF 2022, for the
Respondent no.2 in CA 100 OF 2023, for the Respondent no.2 in FA 11 OF
2023, for the Respondent no.6 in CA 1 OF 2023 in FA 11 OF 2023, for the
Appellant in X-OBJ 222 OF 2023, for respondent no.3 in FA No.21 of 2023,
for the appellant in X-OBJ 221 OF 2023 in FA NO.21/2023
MR. PRAKASH K. JANI, LD. SENIOR ADVOCATE for SHIVANG P
JANI(8285) for the Defendant(s) No. 6 in CA 2321 OF 2022, for the
Respondent no.4 in CA 100 OF 2023, for the Respondent no.4 in FA 11 OF
2023, for the Respondent no.8 in CA 1 of 2023 in FA 11 OF 2023, for
respondent no.6 in FA No.21 of 2023, for the appellant in X-OBJ No.181 of
2023 in FA No.21 of 2023, for respondent no.4 in FIRST APPEAL NO.22 OF
2023 with connected CAs
MR. SAURABH AMIN, ADVOCATE for MR.CHINTAN POPAT for respondent
no.2, 4, 5 in CA 2321 OF 2022, for respondent no.2 and 3 in FA NO.22/2023
MR. NIRAV MAJMUDAR, ADVOCATE for MR.P.B.KHAMBHOLJA for the
APPLICANT in CA NO.2321/2022, CA 99/2023 and CA 100/2023, CA
NO.1/2023 in FA NO.11/2023, for the applicant in CA No.3 of 2022 in FA
NO.21/2023, for the applicant in CA No.3 of 2022 in FA NO.22/2023
MR. MEHUL S. SHAH, LD. SENIOR ADVOCATE for MR.P.H.GOHIL,
MR.VAIBHAV A. VYAS, ADVOCATES for the applicant in CA 4 / 2023 in FA
11/2023, for the applicant in CA No.3 of 2023 in FA NO.21/2023, for the
applicant in CA No.3 of 2023 in FA NO.22/2023
========================================= ===================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 25/01/2024
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
ORDER IN FIRST APPEALS WITH CIVIL APPLICATIONS
FOR ADDITIONAL EVIDENCE AND CIVIL
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APPLICATIONS FOR STAY WITH CROSS-OBJECTIONS
1. The First Appeals are filed by the appellant - State
challenging the judgement and order dated 05.03.2022
passed under Section 18 of the Land Acquisition Act, 1894 by
the learned Reference Court, Baroda (20 th Senior Civil Judge
at Vadodara), whereby, the rate of compensation under the
respective land reference cases was increased from Rs.1914/-
per sq. mtr. to Rs.26,048/- per sq. mtr..
1.1 Cross-objections have been filed by the original
claimants claiming that when their claim was for
enhancement to the extent of Rs.65,000/- per sq. mtr., the
order of the Reference Court in partly allowing the reference
by enhancing the amount only to the extent of Rs.26,048/- was
bad. The Cross-Objections have been filed for claiming an
additional remaining amount of Rs.38,952/-.
2. The dispute in the present matters is pertaining to land
bearing survey no.1/A/2 shown in City Survey part-B bearing
Tika Nos.27/15, 27/16 and 27/17 situated near Lalbaug
Crossing, Kasba, Vadodara admeasuring 1,28,073 sq. mtrs.
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equivalent to approximately 53 vighas and 17 vasa. The lands
are now bearing new survey nos.371 and 372.
3. Brief facts leading to filing of these proceedings are as
under:
3.1 The land in question came to be acquired by the State
Government vide notification dated 09.02.2007 issued under
Section 4 of the Land Acquisition Act, 1894 (hereinafter to be
referred to as 'the Act' for short). For the acquisition of the
said land, the State Government had invoked the urgency
clause for the acquisition thereafter. By an award dated
11.12.2008, the Land Acquisition Officer awarded an amount
at the rate of Rs.1904/- per sq. mtr. The claimants, aggrieved
by the award sought reference under Section 18 of the Act.
3.2 Before the District Court, the claimants claimed an
amount of Rs.65,000/- per sq. mtr. By a judgement and award
dated 05.03.2022, the Reference Court at Vadodara, granted
an amount of Rs.26,048/- per sq. mtr. holding that the market
value of the land under acquisition will be Rs.26,048/- per sq.
mtr. on the date of Section 4 notification which was published
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on 09.02.2007. The Reference Court further granted amount
of interest/rent/damages to the claimants from 29.11.1991 till
09.02.2007 at the rate of 15% on the ground that the State
Government was in possession of the land from 29.11.1991.
The Reference Court further passed an order directing the
State Authorities to pay interest at the rate of 12% from
09.02.2007 i.e. the date of Section 4 notification till the date
of the award i.e. 11.12.2008. A further direction was issued
to grant solatium at the rate of 30% on an additional amount
of compensation granted to the claimants. Accordingly, the
Land Reference Court directed the State Authorities to pay
the following amounts:
i. Rs.2,96,16,76,212.00 by way of additional
compensation at the rate of Rs.24,134/- per sq. mtr. i.e.
Rs.26,048.00 - Rs.1914/-.
ii. Rs.65,15,68,766.64 by way of interest at the rate of
12% per annum on additional compensation under
Section 23(1A) of the Act from 09.02.2007 i.e. date of
Section 4 notification to 11.12.2008 i.e. date of award.
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iii. Rs.88,85,02,863.60 by way of solatium of 30% on
the amount of additional compensation under Section
23(2) of the Act.
iv. Rs.729,20,94,260.00 by way of interest / rent at the
rate of 15% from 29.11.1991 i.e. date on which the State
Authorities was alleged to have come into possession of
the land in question for the period anterior to Section 4
notification.
In all, the total amount would be Rs.11,79,38,42,102.60.
v. Rs.26,65,50,859.00 was awarded by way of interest
at the rate of 9% per annum on the additional
compensation for the period of one year from 09.02.2007
(date of Section 4 notification), under Section 28 of the
Act.
vi. Rs.666,37,74,477.00 by way of interest @ 15% per
annum on the amount of additional compensation from
10.02.2008 till 17.02.2023 under proviso to Section 28 of
the Act.
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3.3 In all, the Reference Court under Section 18 awarded an
amount of Rs.1872,41,64,438.73.
3.4 These appeals were filed in November 2022 and the
cross-objections too have also been filed by the claimants as
aforesaid.
5. Mr. Kamal Trivedi, learned Advocate General assisted by
Mr. Vinay Vishen and Mr.Pranav V. Trivedi, learned Assistant
Government Pleaders on the appeal and on the applications
for additional evidence filed by the State has made the
following submissions:
I. Re: Reasons in brief, without prejudice to one
another, which require the reconsideration of
the whole matter:
1. There is an arithmetical error in calculating the
amount of interest / rent at the rate of 15% per annum
from 29.11.1991 to 09.02.2007, giving rise to the total
of Rs.729,20,94,260.41 crores, since the correct
amount (though not grantable) comes to the tune of
Rs.673,78,13,382.00 Crores, which would have
changed the final award amount to
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Rs.1,816,98,83,561.00 instead of the awarded sum of
Rs.1,872,41,64,438.73.
2. In absence of any provision in this regard, the
aforesaid interest at the rate of 15% per annum is
highly excessive, since as per GR dated 18.06.1986,
the said rate ought to have been @ 9% per annum and
if the same had been calculated accordingly, then in
that case, the aforesaid amount of interest / rent
should have come to the tune of Rs.172,30,60,508 and
not Rs.729,20,94,260.41 for the period from
29.11.1991 to 09.02.2007, with the result, final
amount would come to the tune of Rs.659,55,97,916
instead of the awarded sum of Rs.1,872,41,64,438.73.
3. When it has been a concurrent finding of fact
regarding the factum of possession of the subject land
being with the Respondents-Claimants herein, right
from the order dated 29.11.1991 of the GRT, order
21.03.1994 of the Trial Court, read with judgment
dated 07.05.2002 of this Court and finally read with
judgment dated 10.04.2006 of the Hon'ble Supreme
Court, there was no question of grant of any
interest/rent much less an amount of
Rs.729,20,94,260.41 to the land owners, more
particularly when, there is no finding to the contrary,
on record.
4. When no evidence worth the name is on record to
show as to from which date the State Government
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came into possession of the subject land, there is no
question of assuming the possession of the State
Government in respect of the subject land and that
too, with effect from the date of the order of GRT
being 27.11.1991. At best, one could have presumed
that the State Government might have come in
possession of the subject land after rendition of the
judgment of the Hon'ble Supreme Court on
10.04.2006.
5. Even otherwise, as per the judgment of the Hon'ble
Supreme Court in case of R. L. Jain vs. DDA,
reported in (2004) 4 SCC 79 - rel. para-16, the
Reference Court is not authorised to grant any
amount of interest / rent for the period anterior to the
date of Section 4 Notification being 09.02.2007, in the
present case. Further, even as per the said judgment,
if Collector was to calculate such interest, then in that
case, it ought to have been at the prevailing Bank
rate, but not at 15% per annum in any event.
6. If the above-referred reason is accepted as well
established proposition of law, then in that case, the
entire amount of Rs.729,20,94,260.41 granted by the
Ld. Reference Court ought be excluded from the total
awarded sum, while giving rise to the figure of total
compensation amount to the tune of Rs.487,25,37,408
instead of the awarded sum of Rs.1,872,41,64,438.73.
7. Pertinently, the Ld. Reference Court has committed
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an error in not adopting the correct method of
determination of the valuation of the subject land and
has taken into account irrelevant considerations,
while ignoring the genuine sale instance reflected in
the Sale Deed dated 25.01.2005 at the rate of
Rs.10,038.80 per sq.mtr., in respect of land bearing
CT Survey No.139, admeasuring 1,992.27 sq.mtrs.,
located in the same area of the subject land i.e.
Vadodara - Kasba, City Vadodara, which ought to
have been adopted as base or norm.
8. Unfortunately, the Reference Court has totally
ignored the factual position as regards the
characteristics of the subject land, as reflected in the
Valuation Report dated 30.03.2007 as well as and in
the minutes dated 09.04.2007 of the District Land
Price Committee i.e. DLPC and also referred to by
the Collector in the Award dated 11.12.2008, as well
as in the Map and Google Image of the subject land,
submitted during the course of hearing, viz.
(i) Large tract of land admeasuring 1,22,718 sq.
mtrs.
(ii) Being in the shape of the strip of land.
(iii) Having more depth rather than frontage, which
is practically very minuscule portion, as
compared to the entire long periphery of the
subject land.
(iv) Lying low to the extent of 1.22 cubic mtrs. from
surface of the main road, requiring filing up,
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entailing huge expense for the same.
(v) Existence of water body admeasuring about 10
vighas.
(vi) Existence of railway track just adjacent to the
entire strip of land on its southern side.
The aforesaid are the negative points or minus
factors, diminishing the value of the land. This aspect
of the matter ought to have been taken into
consideration by the Reference Court by granting
appropriate percentage of deduction towards
development cost, varying between 25% to 75%,
considering the aforesaid characteristics of the
subject land, while comparing the same with smaller
developed pieces of lands admeasuring 6125 sq.mtrs.
of City Survey Nos.12 and 13 Paiki and admeasuring
1992.27 sq.mtrs. of CT Survey No.139.
9. Circular dated 23.09.2002 issued by the State
Government laying down guiding principles for
determining the valuation of the land, should not have
been considered by the Ld. Reference Court, more
particularly, when it categorically provides that the
said principle would not apply in the matter of land
acquisition. In fact, the objective behind the issuance
of the said Circular was to fetch good price for the
disposal of prime Government lands, by way of lease.
10. Thus, if one were to take into consideration all the
aspects discussed hereinabove, which ought have
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been taken into account by the Ld. Reference Court,
then in that case, the fair and correct valuation of the
subject land ought to have been as per the 'statement
showing the fair valuation of the subject land',
submitted on behalf of the Appellant State on
12.10.2023, during the course of hearing, a copy
whereof is annexed herewith for ready reference.
According to the said statement, total award amount
comes to the tune of Rs.198,29,43,519/- instead of
the awarded sum of Rs.1,872,41,64,438.73.
II. Re: Correct method of determining the valuation
/ market price of the land under the Act:
1. As per the settled legal position, market value of the
land in question is to be determined with reference to
the open market sale of comparable land in the
neighbourhood, by a willing seller to a willing buyer,
on or before the date of Section 4 Notification, as that
would give a fair indication of market value. Thus, the
larger tract of land like the subject land has to be
compared with similar extent of land.
2. However, when another sale instance of a large
extent of land is not available in the neighbourhood,
then in that case, smaller plots of land in the vicinity
may be taken into account, but after providing for
appropriate percentage of deduction.
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3. In support of what is mentioned above, reliance is
placed on the judgment of the Hon'ble Supreme Court
in case of Union of India vs. Dyagala Devmma,
reported in (2008) 8 SCC 485, while following one
of its earlier celebrated judgments in case of
Chimanlal Hargovinddas vs. Special Land
Acquisition Officer, Pune, reported in (1988) 3
SCC 751, inter-alia, observed in para-4 of the
judgment as under:
"4. The following factors must be etched on
the mental screen:
*** *** ***
*** *** ***
(6) The determination has to be made
standing on the date line of valuation (date of
publication of notification under sec.4) as if
the valuer is a hypothetical purchaser willing
to purchase land from the open market
and is prepared to pay a reasonable price
as on that day. It has also to be assumed
that the vendor is willing to sell the land at a
reasonable price.
(7) In doing so by the instances method, the
Court has to correlate the market value
reflected in the most comparable instance
which provides the index of market value.
(8) Only genuine instances have to be
taken into account. (Sometimes instances
are rigged up in anticipation of Acquisition
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of land.)
*** *** ***
(10) The most comparable instances out of
the genuine instances have to be identified on
the following considerations :
(i) Proximity from time angle
(ii) Proximity from situation angle
*** *** ***
(11) Having identified the instances
which provide the index of market value
the price reflected therein may be taken as
the norm and the market value of the land
under acquisition may be deduced by making
suitable adjustments for the plus and minus
factors vis-à-vis land under acquisition by
placing the two in juxtaposition.
*** *** ***
Plus factors Minus factors
1. Smallness of size. 1 Largeness of area.
.
2. Proximity to a road. 2 Situation in the interior
. at a distance from the
road.
3. Frontage on a road. 3 Narrow strip of land with
. very small frontage
compared to depth.
4. Nearness to developed 4 Lower level requiring the
area. . depressed portion to be
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filled-up.
5. Regular shape. 5 Remoteness from
. developed locality.
6. Level vis-à-vis land 6 Remoteness from
under acquisition. . developed locality.
7. Special value for an
owner of an adjoining
property to whom it may
have some very special
advantage.
*** *** *** "
III. Re: Incorrect method of determination of market
price adopted by the Ld. Reference Court:
1. Incorrect method adopted by the Reference Court in
the present case for arriving at the market price of
the subject land at Rs. 26,048/- per sq. mtrs., as
discernible in paras-23 & 24 @ pgs. 73 to 77 of the
impugned Judgment; can be better explained step-
wise, as under:-
(i) Sale price of Rs.10,038.80 per sq. mtr. was
available as reflected in the sale-deed dated
25.01.2005 in respect of land bearing City Survey
No.139, admeasuring 1992.27 sq. mtrs. located in
the city of Vadodara.
(ii) For determining the price of one another nearby
land in City, bearing City Survey Nos.12 and 13,
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admeasuring 6125.64 sq.mtr. for granting the
same on lease; Town Planner, Vadodara, in his
Valuation Report dated 07.09.2006, applied the
above sale instance of Rs.10,038.80 per sq.mtr. as
on 25.01.2005, by doubling the same to come to
the figure of Rs.20,077.60 per sq.mtr. and then,
adding 15% escalation thereto (i.e. Rs.4927.38)
for the period from 25.01.2005 to 07.09.2006, as
per Circular dated 23.09.2002 ; to come to the
figure of Rs.25004.98 per sq.mtr. To this, further
addition was made i.e. 25% for being on main
road + 25% for frontage + 10% locational
advantage, so as to arrive at the figure of
Rs.43,000 per sq.mtr. for the aforesaid piece of
land of 6125.64 sq.mtr. to be granted to the
Corporation on lease basis.
(iii) Thereafter, in furtherance of the aforesaid
Valuation Report of Town Planner, DLVC in its
meeting dated 13.09.2006, applied the aforesaid
price of Rs.25004.98 as base price to the said
land of City Survey Nos.12 and 13, admeasuring
6125.64 sq.mtr., while accepting the said
Valuation Report dated 07.09.2006, except for
addition of 10% for location advantage; so as to
arrive at the rounded figure of Rs.40,000 per
sq.mtr.
(iv) The Reference Court in the instant matter, has
applied the aforesaid rate of Rs.25004.98 per
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sq.mtrs. determined in case of the land bearing
City Survey Nos.12 and 13, admeasuring 6125.64
sq.mtrs. by adding thereto an escalation amount
@ 10% for 5 months (i.e. from 13.09.2006 to
09.02.2007) for arriving at the figure of Rs.26,048
per sq.mtrs. with respect to the subject land,
admeasuring 1,22,718 sq.mtrs.
2. The aforesaid exercise undertaken by the Ld.
Reference Court can be further appreciated in tabular
format as under:
(i) Rs.10,038.80 --- As on 25.01.2005 w.r.t.
per sq.mtr. comparable piece of
taken as base land bearing City
in case of a Survey No.139
Sale Deed admeasuring 1992.27
executed - sq.mtrs. and located
nearby the subject
land
(ii) Rs.20,077.60 --- i.e. By doubling the
per sq.mtr. aforesaid rate as per
Circular dated
23.09.2002 (which is
not applicable to land
acquisition).
(iii) Rs.4927.38 --- i.e. By adding 15%
per sq.mtr. rate of escalation for
the period of 20
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months (i.e. from
25.01.2005 to
07.09.2006) by the
Town Planner in his
aforesaid Valuation
Report dated
07.09.2006 .
(iv) Rs.25004.98 --- Total of the amounts
per sq.mtr. referred to at Sr.nos.
(ii) and (iii) above.
(v) Rs.1043 per --- An escalation amount
sq.mtr. at 10% for 5 months
(i.e. from 13.09.2006,
i.e. date of DLVC
meeting to
09.02.2007, i.e. date of
Section 4 Notification).
(vi) Rs.26048 per sq.mtr. i.e. [Sr.no.(iv) +
Sr.no.(v) above].
3. Thus, the above referred method of doubling the rate
as per Circular dated 23.09.2002 (not meant for land
acquisition) and then of adding 15% rate of
escalation, has been unknown phenomenon to
determine the reasonable market price of the land
under the Act. It should be on the basis of the
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genuine sale instance/s to be identified, keeping in
mind proximity of time angle and proximity of
situation angle. Unfortunately, the Reference Court
lost sight of the aforesaid important aspect by
following incorrect method of determining the market
price of the subject land.
IV. Re: Sale transaction relating to smaller extent of
land, when can be taken into consideration and
while doing so, what percentage of deduction
should be provided towards development cost for
the larger tract of land:
1. As aforesaid, if no sale instances of comparable land
of large tract are available, then in that case, land
transactions in respect of smaller extent of land could
be taken into account, but only after making
appropriate deductions towards the development of
land by providing enough space for roads, sewers,
drains, expenses involved in formation of layout, etc.
The said deduction varies from 25% to 75%.
2. In support of what is stated hereinabove, reliance is
placed on the judgment of the Hon'ble Supreme
Court in the following cases
(a) L. Kamalamma (SMT) Dead by LRS and
Others, reported in (1998) 2 SCC 385;
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(b) Lal Chand vs. Union of India and Another,
reported in (2009) 15 SCC 769;
(c) Union of India vs. Dyagala Devamma,
reported in (2018) 8 SCC 485;
(d) Union of India vs Premlata reported in
2022 7 SCC 745;
(e) Mala and Others vs. State of Punjab and
Others, reported in 2023 SCC OnLine SC
1005.
V. Re: What should be the yearly percentage of
escalation amount to be added to the genuine
sale instance of past date:
1. If past sale instances are adopted as norm or base for
comparison purposes, then in that case, yearly
escalation amount at the rate of 10% p.a. may be
provided for the period upto the date of Section 4
Notification.
2. To buttress the above proposition, the reliance is
placed on the judgment of the Hon'ble Supreme Court
in case of Executive Engineer, Karnataka Housing
Board vs. Land Acquisition Officer, reported in
(2011) 2 SCC 246, wherein it was observed as
under:
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"10. ... The relevant date for determination of
compensation in this case is 06.02.1992 and
there is a gap of three years for which
appropriate appreciation has to be provided
for. Having regard to the fact that the
acquired lands were within the municipal
limits with considerable development
potential, adopting a cumulative
increase of 10% per annum for three
years, would enable us to arrive at the
market value as on 06.02.1992." .....
(Emphasis supplied).
3. In support of what is mentioned above, reliance is
placed on the judgment of this Hon'ble Court in case
of State of Gujarat through Special Land
Acquisition officer vs. Amaji Mohanji Thakore,
reported in 2010 Vol.4 GLR 3589 and relied upon
by the Respondents-Claimants herein, wherein it was
observed in para 31 as under:
"31. ... 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, ..."
(Emphasis supplied).
VI. Re: Instances of valuation in the matter of grant
of lease-hold rights (i.e. Exhibits 146 and 147),
relied upon by the Respondents-Claimants:
1. Respondents - Claimants have relied upon Exh. 146
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in respect of land bearing Survey Nos.553 and 554,
admeasuring 21,141 sq. mtrs. and 4038 sq. mtrs. and
Exh.147, in respect of land bearing City Survey
Nos.12 & 13, admeasuring 6125.64 sq.mtrs.,
whereby, valuation of smaller parcels of land was
determined for the purpose of granting the same on
lease basis to the 3rd parties. The said valuation was
on a higher side, while following Circular dated
23.09.2002, which cannot be made applicable in the
matter of land acquisition and hence, the said
valuation rate of Rs.28,800/- per sq. mtr. determined
in case of Exh.146 and Rs.40,000/- determined in case
of Exh.147, cannot be made use of in the present
matter.
2. Without prejudice to what is mentioned hereinabove,
it is submitted that even otherwise, the said instances
in terms of Exh.146 and Exh.147 cannot be pressed in
service in the present case inasmuch as the both the
leases have never been fructified and hence, the said
valuations have just remained on paper only.
3. In the above connection, reliance is placed on the
observations of Ld. Reference Court in the impugned
judgment and order in regard to Exh.146 relating to
lands bearing Survey Nos.553 and 554, admeasuring
21,141 sq. mtrs. and 4038 sq. mtrs, to the following
effect.
"Price determined at Rs.28,000/- per sq.mtr.
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as per the Minutes of Meeting dated
17.04.2000 of the District Land Price
Committee (DLPC), was subject to the
confirmation by the State Land Valuation
Committee (SLVC), since the total value of
the said lands was exceeding Rs.50 lakhs and
that SLVC had not confirmed the minutes of
the DLPC's meeting referred to above."
4. Similarly, reliance is placed on the following ground
't' in regard to Exh.147 relating to land bearing City
Survey Nos.12 and 13, admeasuring 6125.64 sq.mtrs.,
which is set out hereunder:
" t. That the Ld. Reference Court has even
otherwise committed a grave error in
considering the minutes of the meeting dated
13.09.2006 in respect of City Survey Nos.12
& 13 situated at Vadodara Kasba, since the
said land was to be granted to the Vadodara
Municipal Corporation on the lease basis,
which was never fructified and therefore, the
valuation of the said land could not have been
relied upon in determining."
5. Even whilst assuming without admitting that the
aforesaid valuation arrived at in Exh.147, is required
to be considered, as sought to be done by the Ld.
Reference Court, for determining the market price of
the subject land as on 09-02-2007, then in that case,
how the said determination and application thereof to
the subject land is highly incorrect and improbable,
has already been discussed herein above.
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VII. Re: Instances of valuation based on 'auction -
transactions' (i.e. Exhibits 148-149), for granting
land on lease-hold basis:
1. Respondents - Claimants have relied upon Exh.148 in
respect of land bearing FP No.166 paiki, admeasuring
2,200 sq.mtrs. and Exh.149 in respect of land bearing
FP No.549/1, admeasuring 5,556.00 sq.mtrs.,
whereby, valuation of smaller parcels of land was
determined on the basis of auction transactions,
giving rise to the value of Rs.40,200 per sq.mtr. and
Rs.45,500 per sq.mtr., respectively for granting the
said lands on lease basis.
2. Reference Court has rightly not accepted the
aforesaid two instances for the reasons that the said
lands were fully developed and covered under the
Town Planning Scheme, wherein scheme was already
implemented after making the provision for main road
/ other amenities etc. Whereas, the subject land is in
one single unit and its area is very large and the
major portion thereof does not abut the main road.
Furthermore, the said lands under Exhs.148 and 149
vis-à-vis subject land, are situated in different areas
and, therefore, the same otherwise cannot be
compared.
3. Without prejudice to what is mentioned hereinabove,
it is pertinent to note that the auction sales do not
furnish a safe guide for determination of market value
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and therefore, the reliance as sought to be placed by
the Respondents-Claimants on the said Exhs.148 and
149 is highly misplaced.
4. For the aforesaid proposition, the Appellant-State
relies upon the judgment of the Hon'ble Supreme
Court in case of Executive Engineer, Karnataka
Housing Board vs. Land Acquisition Officer,
reported in (2011) 2 SCC 246, wherein it was
observed as under:
"6. We may deal with the last submission
first. The standard method of determination
of market value of any acquired land is by the
valuer evaluating the land on the date of
valuation (publication of notification under
section 4(1) of the Land Acquisition Act, 1894
- `Act' for short) notification, acting as a
hypothetical purchaser willing to purchase
the land in open market at the prevailing
price on that day, from a seller willing to sell
such land at a reasonable price. Thus, the
market value is determined with reference to
the open market sale of comparable land in
the neighbourhood, by a willing seller to a
willing buyer, on or before the date of
preliminary notification, as that would give a
fair indication of the market value. A `willing
seller' refers to a person who is not acting
under any pressure to sell the property, that
is, where the sale is not a distress sale. A
willing seller is a person who knowing the
advantages and disadvantages of his
property, sells the property after ascertaining
the prevailing market prices at the fair and
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reasonable value. Similarly, a willing
purchaser refers to a person who is not under
any pressure or compulsion to purchase the
property, and who, having the choice of
different properties, voluntarily decides to
buy a particular property by assessing its
advantages and disadvantages and the
prevailing market value thereof. Of course,
unless there are indications to hold
otherwise, all sale transactions under
registered sale deeds will be assumed to be
normal sales by willing sellers to willing
purchasers. Where however there is evidence
or indications that the sale was not at
prevailing fair market value, it has to be
ignored. But auction sales stand on a
different footing. When purchasers start
bidding for a property in an auction, an
element of competition enters into the
auction. Human ego, and desire to do better
and excel other competitors, leads to
competitive bidding, each trying to outbid the
others. Thus in a well advertised open auction
sale, where a large number of bidders
participate, there is always a tendency for the
price of the auctioned property to go up
considerably. On the other hand, where the
auction sale is by banks or financial
institutions, courts, etc. to recover dues,
there is an element of distress, a cloud
regarding title, and a chance of litigation,
which have the effect of dampening the
enthusiasm of bidders and making them
cautious, thereby depressing the price. There
is therefore every likelihood of auction price
being either higher or lower than the real
market price, depending upon the nature of
sale. As a result, courts are wary of
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relying upon auction sale transactions
when other regular traditional sale
transactions are available while
determining the market value of the
acquired land. This Court in Raj Kumar V/s.
Haryana State - 2007 (7) SCC 609, observed
that the element of competition in auction
sales makes them unsafe guides for
determining the market value." (Emphasis
supplied).
5. Even whilst assuming without admitting that
valuation determined on the basis of auction
transaction, can be considered for applying the
same to the subject land, then in that case also, as
held by the Hon'ble Supreme Court in the aforesaid
case of Executive Engineer, Karnataka
Housing Board (Supra), where an open auction -
sale is the only comparable sale transaction
available and that too, on account of proximity in
situation and time, the price disclosed by such
auction - sales may be relied upon with caution,
but after providing for an appropriate deduction or
cut of to offset the competitive hike in value. In the
above-referred judgment, the Hon'ble Supreme
Court provided for deduction of 20% of the auction
price, so as to apply the same to the land under
acquisition, in terms of para 7 of the said judgment,
reading as under :
"7. ..... Therefore, we are left with only the
auction - sale transactions. On the facts and
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circumstances, we are of the view that a
deduction or cut of 20% in the auction
price disclosed by the relied upon auction
transaction towards the factor of `competitive
- price hike' would enable us to arrive at the
fair market price."
Thereafter, in the very judgment, the Hon'ble
Supreme Court in para 10 provided for addition of
cumulative increase of 10% per annum by way of
escalation for three years covering the period upto
the date of Section 4 Notification, in the following
fashion:
"10. ...... Having regard to the fact that the
acquired lands were within the municipal
limits with considerable development
potential, adopting a cumulative increase
of 10% per annum for three years, would
enable us to arrive at the market value as on
6-2-1992. By applying such increase, the
market value as on 6-2-1992 will be
Rs.4,92,460/- per acre."
Interestingly, the Apex Court while proceeding
further in the very case, directed for a deduction of
40% towards the cost of development in para 11 of
the judgment, reading as under:
"11. ... Having regard to the partial access to
infrastructural facilities, we are of the view
that a deduction of 40% towards cost of
development would meet the ends of
justice. ... On applying a cut of 40%, the rate
per acre for the acquired land as on 6-2-1992
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would be Rs.2,95,476/- (rounded off to
Rs.2,95,500)."
6. If one were to adopt the aforesaid exercise in the
present case; the valuations referred to in the
aforesaid Exhibits, would be reduced drastically.
However, there is no question of undertaking the said
exercise in the present matter, more particularly
when, sale instance of 25.01.2005, located nearby the
subject land is available, whereas, there is no
proximity in situation between the lands in question in
aforesaid Exhibits 148 and 149, on one hand and the
subject land, on the other.
VIII. Re: The Act does not authorize the award of
interest / rent prior to issuance of Notification
under Section 4 of the Act
1. The Ld. Reference Court has committed a grave error
in awarding interest from 29.11.1991, while
considering the date of the Judgment i.e. 29.11.1991
rendered by Ld. GRT, as the date of acquiring the
possession of the subject land. In law, the Ld.
Reference Court had no jurisdiction to award rent /
interest at the rate of 15% for the period anterior to
the Section 4 Notification, as the same would travel
beyond the provisions of the Act.
2. Pertinently, the Respondents by virtue of Exh.121
dated 05.08.2021 sought an amendment for insertion
of a prayer seeking interest @ 9% for the first year
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and 15% after the period of one year till the actual
payment is made, on the ground that since so many
years, the subject land has been in the possession of
the Appellant State. However, the law does not
permit so. Despite this, the Ld. Reference Court, vide
its impugned judgment, has granted interest / rent
unlike award of damages / compensation, which is
otherwise sought to be canvassed by the other side.
3. For the aforesaid proposition, Appellant - State relies
upon the following judgment of the Hon'ble Supreme
Court in case of Union of India v. Budh Singh &
Ors., reported in (1995) 6 SCC 233, it was held as
under:
"5. ... Thus, it would be seen that the
court has no power to impose any condition
to pay interest in excess of the rate and
manner prescribed by the statute as well as
for a period anterior to the publication of
Section 4(1) notification under the Act. ...
... Any possession otherwise would not be
considered to be possession taken under the
Act.". (Emphasis supplied).
4. Further reliance is placed on a judgment by a Larger
Bench of the Hon'ble Supreme Court in case of R.L.
Jain vs. EDA reported in (2004) 4 SCC 79, it was
held as under:
"12. ... Clearly, the stage for taking
possession under the aforesaid provisions
would be reached only after publication
of the notification under Sections 4(1)
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and 9(1) of the Act. If possession is
taken prior to the issuance of the
notification under Section 4(1), it would not
be in accordance with Section 16 or 17 and
will be without any authority of law and
consequently cannot be recognized for the
purposes of the Act. For parity of reasons
the words 'from the date on which he took
possession of the land' occurring in Section
28 of the Act would also mean lawful taking a
possession in accordance with Section 16 or
17 of the Act. The words 'so taking
possession' can under no circumstances
mean such dispossession of the owner of
the land which has been done prior to
publication of notification under Section
4(1) of the Act which is de hors the
provisions of the Act." (Emphasis supplied).
Pertinently, in para 18 of the aforesaid judgment,
the Hon'ble Supreme Court has expressed to the
effect that it would be for the Collector to determine
the rent or damages for use of the property to which
the land owner may be entitled while determining the
compensation amount payable to the land owner for
the acquisition of the property. Thus, this aspect of
the matter has nothing to do with the direction of the
Ld. Reference Court in granting interest and that too,
@ 15% per annum for the period anterior to the
issuance of Section 4 Notification i.e. 09.02.2007.
5. Later, even the coordinate Division Bench of this
Hon'ble Court, has followed the aforesaid view in its
judgment in case of General Manager vs.
Chaudhary Mahotbhai Hirabhai, reported in
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2018 SCC OnLine Guj. 4618, while holding inter
alia, as under:
"26. The judgement noted above, in clear
terms, hold that no interest can be awarded
either under Section 28 or 34 of the Act prior
to publication of notification under Section
4(1) of the Act. If the possession of the
land is taken over without authority of
law, it would be open for the land owner
to seek damages or compensation
through ordinary civil remedy..."
(Emphasis supplied).
6. Similar view has taken by this Hon'ble Court in one
another judgment dated 11.05.2018 in case of
Project Manager, ONGC Limited vs. Deputy
Collector, rendered in First Appeal Nos.919 and
920 of 2023.
7. Apart from what is mentioned above, the Appellant -
State also relies upon the following judgments, taking
similar view that no interest can be awarded for the
period anterior to Section 4 Notification.
(i) Delhi Development (2009) 5 SCC 339 -
Authority v. Mahender rel. paras 7, 8 & 9
Singh & Anr.
(ii) Ratibhai Sambhubhai Patel Order dated
v. Oil & Natural Gas 06.04.2018 in SLP
Corporation Ltd. & Anr. No.37719-37720/
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8. It may be noted that what was claimed by the
Respondent-Claimant before the Reference Court
was, 'interest', as discussed above and not
'damages' or 'mesne profit', as was argued before
this Court on behalf of the Respondents - Claimants
during the course of hearing.
In view of the above, the Respondents-Claimants
are not entitled to any amount much less an amount
of Rs.729,20,94,260.00 by way of interest as awarded
by the Reference Court.
9. So far as any amount towards 'damages' is concerned,
the same is also not grantable inasmuch as, the
Respondents-Claimants had neither claimed any
damages before the Reference Court nor has proved
any damages purported to have been sustained by
them, whilst assuming without admitting that the
State Government was in possession of the subject
land right from 29.11.1991 to 09.02.2007.
10. Similarly, the Respondents-Claimants are not
entitled to any amount by way of mesne profit in the
absence of any adjudication of any of their claim for
determination of any mesne profit as per the
provisions of Order XX Rule 12 of Code of Civil
Procedure.
IX. Re: In absence of any categorical finding on the
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aspect of 'possession' of the subject land with
the State Government, the Ld. Reference Court
erred in taking the date of the judgment of Ld.
GRT i.e. 29.11.1991 as the base, for the purpose
of award of interest for the period commencing
from the said date till the date of Section 4
Notification, i.e. 09.02.2007.
1. Nowhere in the entire record, the Respondents-
Claimants have referred to any date on which they
were dispossessed by the Appellant State. In fact, for
the first time, by virtue of Exhibit-121 dated
05.08.202, a prayer came to be inserted in the
Reference Application, seeking the grant of interest,
at the rate of 9% for the first year and 15% after the
period of one year till the actual payment is made, on
the alleged ground that since so many years, the
subject land is in the possession of the Appellant
State.
2. Even the Reference Court, in its impugned Judgment
has not given any conclusive finding on the aspect
regarding the date from which the Appellant State
could be said to have come into possession of the
subject land. In fact, the Reference Court has
concluded in this behalf, while observing to the
following effect that:
"Nothing has come on record to suggest
the particular time period during which
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the Appellant State came in possession of
the subject land"
3. On the contrary, right from the decision of the GRT
dated 29.11.1991 upto the Judgment dated
10.04.2006 of the Hon'ble Supreme Court, it has been
categorically held that the subject land was in the
ownership and possession of the land owners, i.e.
Respondents-Claimants. For ready reference, the
following excerpts from the said judgment dated
29.11.1991 of the GRT are set out hereunder:
"17. ... The fact that the Appellant and his
father had given the suit land to other
persons under different agreements proves
the possession of the Appellant. ... "
"18. In this respect, it is also pertinent to
note that when the City Survey Officer was
directed to make an inquiry about the suit
land which was lying open, the City Survey
Officer inquired from different departments
viz. Police Department, P.W. Department and
Military Department whether they were in
possession of the suit land but vide letter
dated 5-9-61 the City Survey Officer was
informed by the Circle Officer that on inquiry
he was informed that the Police Department,
Military Department and the P.W.
Department were not in possession of the suit
land (Page 75 Batch 5). Thus, the say of
the appellant that he was in possession of
the suit land and he used to give out the
suit land to others on hire for different
purposes, must be believed. The State
Govt. or any of its departments has never
claimed any possession of the suit land for
any purpose, nor the State Govt. has been
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able to prove its ownership on the suit land.
...."
"22. ... The appellant proves his
possession of the suit land by documentary
evidence as well as by agreements executed
in 1944 ..."
"25. ... Under the circumstances, the State
Govt. has not produced the relevant
documentary evidence on record, the
appellant has produced documentary
evidence which was available to him, he has
also shown his possession and it is proved
that the appellant is the owner of 53 Bigha 17
Vasa of open land in B-TikaNo.27/15, 27/16
and 27/17. Admittedly no other department
or the State Govt. was in possession of this
land when the inquiry was started, while the
appellant has proved his possession on the
disputed land. ... "
"26. Order:- Appeal is allowed. ... The
Appellant is held to be owner and in
possession of the disputed land admeasuring
53 Bigha 17 Vasa of B-Tika No.27/15, 27/16 &
27/17 of Vadodara city."
4. Similarly, the judgment and order dated 21.03.1994
of the Trial Court in Special Civil Suit No.776 of 1992
filed by the Appellant-State challenging the aforesaid
order dated 29.11.1991 of the Ld. GRT, categorically
records to the effect that 'de-facto possession' or
'physical possession' of the subject land had been
that of the Respondents-Claimants right from the time
of their ancestors in the following words:
"પ્ર.વાદીના જણાવ્યા પ્રમાણે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છેઓનો તકરાર એવી છે તકરાર એવી છે તેઓનો તકરાર એવી છે
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કે તેઓનો તકરાર એવી છે , વાદી તકરારી જમીનના કદી કબ્જામાં હતા નહિ અને છે હતા નહિ અને છેહ અને તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે
પણ નહિ અને છેહ. તે તેઓનો તકરાર એવી છેમજ તૅઑ કદી તકરારી જમીનના માલિક પણ કદી તકરારી જમીનના માલિ ક પણ
હતા નહિ અને છેહ અને તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે પણ નહિ અને છેહ. તકરારી જમીન પ્ર.વાદીના
મૈ યે તેઓનો તકરાર એવી છેત વડી ો તકરાર એવી છેની માલિ કીની માલિ કીની હો તકરાર એવી છેવાની જણાવી સદર
જમીનનો તકરાર એવી છે પ્રત્યક્ષ કબ્જો ભોગવટો પ્ર કબ્જો તકરાર એવી છે ભો તકરાર એવી છેગવટો તકરાર એવી છે પ્ર.વાદીઓના મૈ યે તેઓનો તકરાર એવી છેત
વડી ો તકરાર એવી છેના સમયથીજ છે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છેમ જણાવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે . "
Similarly, the aforesaid judgment also records that
the land owners denied that the subject land was ever
in possession of Fatesinh Regiment or any other
Department of the State Government.
"... તકરારી જમીન કદી પણ ફતે તેઓનો તકરાર એવી છેલિસહ ં હતા નહિ અને છે રે તેઓનો તકરાર એવી છેજિજમે તેઓનો તકરાર એવી છે ન્ટના કબ્જે તેઓનો તકરાર એવી છે
હો તકરાર એવી છેવાનું હતા નહિ અને છે કે તેઓનો તકરાર એવી છે સરકારના બીજા કો તકરાર એવી છેઈપણ ખાતાના કબ્જે તેઓનો તકરાર એવી છે હો તકરાર એવી છેવાની
વાત ખરી નથી તે તેઓનો તકરાર એવી છેમ જણાવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે . ... .." .
Furthermore, the said judgment records the
admission made by the land owners that the subject
land was in the ownership and possession of the land
owners and it was never in the possession and
ownership of the State Government or its any other
Department. At the same time, in the said judgment,
the arguments advanced on behalf of the land owners
were recorded by, inter alia, stating that Police
Training School of SRP was on the land adjoining to
the subject land and the possession of the subject
land was never in possession of the State
Government, in the following fashion:
"...ખરે તેઓનો તકરાર એવી છેખર અમો તકરાર એવી છે પ્ર. વાદીના માલિ કી અને તેઓનો તકરાર એવી છે કબ્જામાં હતા નહિ અને છે
જે તેઓનો તકરાર એવી છે જમીન છે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છે ક્યારે તેઓનો તકરાર એવી છે ફતે તેઓનો તકરાર એવી છેલિસહ
ં હતા નહિ અને છે રે તેઓનો તકરાર એવી છેજિજમે તેઓનો તકરાર એવી છે ન્ટ એન્ડ સરકારના
કો તકરાર એવી છેઈ પણ ખાતાના નામે તેઓનો તકરાર એવી છે દાખ થયે તેઓનો તકરાર એવી છે ી નથી. આથી તકરારી
જમીન અમો તકરાર એવી છે પ્ર. વાદીઓની માલિ કી અને તેઓનો તકરાર એવી છે કબ્જાની છે તેઓનો તકરાર એવી છે .
... ... ...
NEUTRAL CITATION
C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024
undefined
... વાદીના અહિ અને છે1કારીઓ જે તેઓનો તકરાર એવી છેવા કે તેઓનો તકરાર એવી છે પો તકરાર એવી છે ીસે તેઓનો તકરાર એવી છે ટ્ રે તેઓનો તકરાર એવી છેહિ અને છેનગ ં હતા નહિ અને છે સ્કૂ ના
હિ અને છેપ્રહિ અને છેન્સપા એન્ડ બીજાઓએ અમો તકરાર એવી છેને તેઓનો તકરાર એવી છે ગે તેઓનો તકરાર એવી છેરકાયદે તેઓનો તકરાર એવી છે સર અને તેઓનો તકરાર એવી છે
ખો તકરાર એવી છેટી રીતે તેઓનો તકરાર એવી છે મજ
ં હતા નહિ અને છે રુ થયે તેઓનો તકરાર એવી છે ી સ્કીમનું હતા નહિ અને છે બાં હતા નહિ અને છે1કામ કરતા અટકાવે તેઓનો તકરાર એવી છે ા
જે તેઓનો તકરાર એવી છેથી અમો તકરાર એવી છેને તેઓનો તકરાર એવી છે ૧૧૩૨/૯૨ નો તકરાર એવી છે દાવો તકરાર એવી છે દાખ કરે તેઓનો તકરાર એવી છે ો તકરાર એવી છે અને તેઓનો તકરાર એવી છે પે તેઓનો તકરાર એવી છેહ ો તકરાર એવી છે
વાદીની પો તકરાર એવી છે ીસ ટ્રે તેઓનો તકરાર એવી છેહિ અને છેનગ ં હતા નહિ અને છે સ્કૂ અને તેઓનો તકરાર એવી છે એસ.આર.પી. ગ્રુપ બને તેઓનો તકરાર એવી છે
અમારી બાજુની સરકારી જમીનમાં હતા નહિ અને છે આવે તેઓનો તકરાર એવી છે ા છે તેઓનો તકરાર એવી છે . તકરારી
જમીન કે તેઓનો તકરાર એવી છે જે તેઓનો તકરાર એવી છેનું હતા નહિ અને છે ક્ષ કબ્જો ભોગવટો પ્રે તેઓનો તકરાર એવી છેત્રફ્ળ ૧૩ ૧૩.૫ લાખ ચો ાખ ચો તકરાર એવી છે. ફૂટ થાય છે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છે
ખુલ્ ી એન્ડ પડતર જમીનમાં હતા નહિ અને છે વાદી અરગ તે તેઓનો તકરાર એવી છેના કો તકરાર એવી છેઈ ખાતાએ
કો તકરાર એવી છેઈ પણ વાપર કરવો તકરાર એવી છે હો તકરાર એવી છેય તો તકરાર એવી છે તે તેઓનો તકરાર એવી છે કાયદામાં હતા નહિ અને છે કબ્જો તકરાર એવી છે પડી શકાય
નહિ અને છેહ. એવો તકરાર એવી છે વાપર માત્ર નીયર યુઝર છે તેઓનો તકરાર એવી છે અને તેઓનો તકરાર એવી છે હિ અને છેનયર
યુઝરથી અમો તકરાર એવી છે પ્ર.વાદી અમારી માલિ કીની જમીનમાં હતા નહિ અને છેથી
હિ અને છેડસ્પજે તેઓનો તકરાર એવી છેસ થતા નથી. કે તેઓનો તકરાર એવી છે જમીનનો તકરાર એવી છે કબ્જો તકરાર એવી છે ગુમાવતા નથી.
અમો તકરાર એવી છે પ્ર. વાદી કહે તેઓનો તકરાર એવી છે વા પ્રમાણે તેઓનો તકરાર એવી છે તકરારી જમીન ખુલ્ ી અને તેઓનો તકરાર એવી છે
હિ અને છેવશાળ ૧૩ જગ્યા છે તેઓનો તકરાર એવી છે . સદર જમીન અમારી માલિ કીની છે તેઓનો તકરાર એવી છે . અમો તકરાર એવી છે
પ્ર.વાદીના કબ્જે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે . વાદી અગર તે તેઓનો તકરાર એવી છેના કો તકરાર એવી છેઈ ખાતાએ અમારી
જમીનના થો તકરાર એવી છેડાક ભાગનો તકરાર એવી છે કો તકરાર એવી છેઈ ક્ષ કબ્જો ભોગવટો પ્રજિણક ઉપયો તકરાર એવી છેગ કયો તકરાર એવી છેB હો તકરાર એવી છેય તો તકરાર એવી છે
તે તેઓનો તકરાર એવી છેવા ઉપયો તકરાર એવી છેગથી વાદીનો તકરાર એવી છે કબ્જો તકરાર એવી છે લિસદ્ધ થતો નથી થતો તકરાર એવી છે નથી. અમારી
જમીનમાં હતા નહિ અને છે .વાદીએ વૃક્ષ કબ્જો ભોગવટો પ્રારો તકરાર એવી છેપણ કરે તેઓનો તકરાર એવી છે ા ની હકીકત ખરી નથી
અને તેઓનો તકરાર એવી છે કાબુ નથી. અમારી જમીનમાં હતા નહિ અને છે વો તકરાર એવી છે ફે તેઓનો તકરાર એવી છે ાઈ લિબગ હિ અને છેવગે તેઓનો તકરાર એવી છેરે તેઓનો તકરાર એવી છે
હો તકરાર એવી છેવાની હલિકકત ખરી નથી અને તેઓનો તકરાર એવી છે કાબુ નથી. તકરારી
જમીન કસરત માટે તેઓનો તકરાર એવી છે , પરે તેઓનો તકરાર એવી છેડ માટે તેઓનો તકરાર એવી છે કે તેઓનો તકરાર એવી છે કો તકરાર એવી છેઈ સે તેઓનો તકરાર એવી છેલિ બ્રશે તેઓનો તકરાર એવી છેન માટે તેઓનો તકરાર એવી છે
પો તકરાર એવી છે ીસે તેઓનો તકરાર એવી છે ખાતા કે તેઓનો તકરાર એવી છે એસ.આર.પી. ના જવાનો તકરાર એવી છે મારફતે તેઓનો તકરાર એવી છે ઉપયો તકરાર એવી છેગ
થતો તકરાર એવી છે હો તકરાર એવી છેવાની વાત ખરી નથી. તકરારી જમીન કદી પણ
વાદીના કબ્જે તેઓનો તકરાર એવી છે હો તકરાર એવી છેવાની ખરી નથી અને તેઓનો તકરાર એવી છે અમો તકરાર એવી છેને તેઓનો તકરાર એવી છે કાબુ નથી."
"મુદ્દાઓ
...
(૩) શું હતા નહિ અને છે વાદી પુરવાર કરે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે કે તેઓનો તકરાર એવી છે , તે તેઓનો તકરાર એવી છેઓ તકરારી જમીનનો તકરાર એવી છે
માલિ કી હક્કે તેઓનો તકરાર એવી છે કાયદે તેઓનો તકરાર એવી છે સર કબ્જો તકરાર એવી છે 1રાવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે ?
...
ઉપરો તકરાર એવી છેક્ત મુદ્દાઓના હિ અને છેનણBયો તકરાર એવી છે નીચે તેઓનો તકરાર એવી છે પ્રમાણે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે .
(૩) ના. ...."
Ultimately, while answering Issue No.3 as to
whether the State Government proves that it is in
NEUTRAL CITATION
C/FA/11/2023 CAV JUDGMENT DATED: 25/01/2024
undefined
possession of the subject land?, the Trial Court
answered the same in 'No', after recording a
categorical finding that it cannot be believed that the
State Government was ever in possession of the
subject land, in the following words:
"... પરં હતા નહિ અને છેતુ મુદ્દા નં હતા નહિ અને છે.૩ ને તેઓનો તકરાર એવી છે ાગે તેઓનો તકરાર એવી છે વળ ૧૩ગે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે ત્યાં હતા નહિ અને છે સુ1ી માલિ કી હક્કે તેઓનો તકરાર એવી છે
કે તેઓનો તકરાર એવી છે પો તકરાર એવી છેતાને તેઓનો તકરાર એવી છે કબ્જો તકરાર એવી છે સો તકરાર એવી છે ં હતા નહિ અને છેપવામાં હતા નહિ અને છે આવ્યો તકરાર એવી છે હો તકરાર એવી છેય તે તેઓનો તકરાર એવી છે હક્કે તેઓનો તકરાર એવી છે વાદી આ
જગ્યાનો તકરાર એવી છે કબ્જો તકરાર એવી છે 1રાવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે તે તેઓનો તકરાર એવી છેવું હતા નહિ અને છે ક્યાં હતા નહિ અને છેય તે તેઓનો તકરાર એવી છેવો તકરાર એવી છે સાલિબત કરી શકયા
નથી. આથી મુદ્દા નં હતા નહિ અને છે. ૨ -૩ નો તકરાર એવી છે જવાબ પણ નામાં હતા નહિ અને છે આપવામાં હતા નહિ અને છે
આવે તેઓનો તકરાર એવી છે છે તેઓનો તકરાર એવી છે . ... " (pg.66 in PB).
5. It may be noted that this Court, vide its judgment
dated 07.05.2002 in FA Nos.969 of 1994, confirmed
the aforesaid judgment of the Ld. Trial Court and
while doing so, granted status quo as regards physical
possession of the subject land, while recording the
following statement made on behalf of the
Respondents-Claimants, against the contrary version
presented on behalf of Appellant-State.
"However, as per the submission of learned
Senior Advocate Shri Vakharia and Shri Vakil
appearing for the respondents, they are in
possession."
6. The aforesaid judgment of this Court was further
carried in appeal, wherein the Hon'ble Supreme
Court, vide its judgment dated 10.04.2006, rendered
in Civil Appeal No.7898-7900 of 2002, confirmed all
the above-referred three judgments dated 29.11.1991
of the GRT, dated 21.03.1994 of the Trial Court and
dated 07.05.2002 of this Court, while inter alia,
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observing as under as regards the aspect of
possession:
" ... The Tribunal also recorded a finding
that respondent No.1 and his father had
given the suit lands to other persons
under different agreements which proved
that possession over the lands in question.
As against this, the State Government was
unable to produce any satisfactory
evidence to prove that any other Survey
Number was acquired for the purposes of
Fatehsinh Regiment. ...".
7. It is very important to note that against the specific
and positive finding as regards possession of the
subject land being with the Respondents-Claimants
right upto 09.02.2007 when Section 4 Notification
was issued, as concurrently arrived at by three
different authorities and the Courts in hierarchy and
finally confirmed by the Hon'ble Supreme Court, as
discussed hereinabove; various pieces of documentary
evidence referred to hereunder and relied upon by the
Respondents-Claimants; pale into insignificance and
cannot, by any stretch of imagination, be taken into
account.
(i) Copy of Panchnama drawn on 06.09.1992 in
Civil Appeal No.194/1992 (Exh.134),
(ii) Copy of plaint in Special Civil Suit
No.776/1992 filed by the Appellant State
(Exh.135),
(iii) Deposition of Commandant Mr. Malhar Rao in
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Special Civil Suit No.776/1992 (Exh.136),
(iv) Letter dated 28.05.2002 addressed by
Superintendent of Land Records to Collector,
Vadodara (Exh.150),
(v) Proposal dated 18.09.2006 and 25.09.2006 of
the Commandant, SRPF, Vadodara to Special
Land Acquisition Officer (Exh.183).
Under the circumstances, all the aforesaid
documents would be of no avail to Respondents-
Claimants to state something about the possession of
the subject land, contrary to final findings as arrived
at by the Hon'ble Court, in that behalf.
8. Further, it is not legally permissible to the
Respondents-Claimants to contend that the
concurrent finding of the authority and the Courts,
duly confirmed by the Hon'ble Supreme Court and
referred to above, was in respect of 'de jure
possession' and not 'de facto possession'. It may be
true that originally Section 37(2) inquiry was in
respect of title qua the subject land, but what
followed thereafter right from the orders of the
Mamlatdar, Collector, and thereafter from the Ld.
GRT to Hon'ble Supreme Court, was the controversy
in respect of title as well as 'de facto possession' or
'physical possession', wherein the issue relating to
physical possession was writ large, which was finally
confirmed in favour of the Respondents-Claimants by
the Hon'ble Supreme Court.
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9. Even otherwise, when one discusses about the 'title'
to the land in question, the title holder is always
deemed to be a de jure possessor and that, therefore,
one does not necessarily discuss about de jure
possession when the title is admitted. Therefore,
under such circumstances whenever an issue of
possession is referred, it is always about de facto
possession or physical possession.
X. Re: Award of rent / interest by the Ld.
Reference Court @ 15% interest prior to the date
of Section 4 Notification
Assuming without admitting that the Ld. Reference
Court had jurisdiction to award rent / interest prior
to the date of Section 4 Notification, then in that case
also, the Ld. Reference Court has committed a grave
error in awarding whopping interest @ 15%. The Ld.
Reference Court ought not to have granted interest
at such a huge rate, since the State Government has,
vide Government Resolution dated 18.06.1986,
prescribed the rate of interest in case of the
acquisition of land with agreement to be @ 9% from
the date of taking over of such possession.
XI. Re: Production of Additional Evidence under
Order 41 Rule 27
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1. By virtue of Civil Application No. 3 of 2023, the
additional documents i.e. Annexures - A2 to A16. Out
of the said 15 documents, the documents from
Annexures - A2 to A9 are the public documents and
have been directly or indirectly referred to in the land
reference proceedings. Whereas, the documents from
Annexures - A10 to A16, are the Agreements entered
into between the land owners and third parties in
respect of very subject land and therefore, have
direct bearing upon the adjudication of the present
appeal. These documents would not only enable this
Hon'ble Court to pronounce the judgment, but would
further the substantial cause in the captioned appeal.
For the aforesaid proposition, Appellant State relies
upon the following judgments:
(i) Malayalam Plantations (2010) 13 SCC 487 -
Limited v. State of Kerala & rel. paras 12 to 20
Anr.
(ii) Uttaradi Mutt v. (2018) 10 SCC 484 -
Raghavendra Swami Mutt rel. paras 1, 2, 6, 8
to 12, 16
(iii) Sanjay Kumar Singh v. (2022) 7 SCC 247 -
State of Jharkhand rel. paras 1 to 2.2,
5, 7 to 11
(iv) Dashratbhai Jethabhai Patel (2022) 4 GLH 125 -
& Ors. v. State of Gujarat rel. paras 2 to 2.2,
7 to 7.2.4 & 9 to
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10.4
XII. Re: Remand of the matter to learned Reference
Court for reconsideration and a decision afresh.
As discussed hereinabove, the Ld. Reference Court
has committed a grave error while not keeping in
mind the rules evolved by this Hon'ble Court as well
as the Hon'ble Supreme Court in the matter of
determining the market price of the subject land. The
Ld. Reference Court has neither given any deduction
whatsoever which is otherwise a matter of rule, to be
granted in case where the sale instance of a smaller
land is to be applied to a larger extent of land.
Further, the method adopted by the Ld. Reference
Court in making the sale price double and further
adding interest @ 15%, is inherently flawed. The
findings recorded by the Ld. Reference Court are
based on, no direct and relevant evidence and hence,
the same unsustainable and unjustified and that the
consequent decree passed by the Ld. Reference Court
is liable to be reversed. Even otherwise, in the
backdrop of additional evidence sought to be
produced by the Appellant State, the same can only
be appreciated, once the matter is remanded back to
the Ld. Reference Court to consider the same and
decide the case afresh
For the aforesaid proposition, Appellant - State relies
upon the following judgments:
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(i) Project Manager, ONGC CAV Judgment
Limited v. Deputy Collector. dated 11.05.2018
in First Appeal
No.919 of 2003 -
rel. paras 6 to 9
(ii) Gajanand & Ors v. State of (2012) 12 SCC
Maharashtra & Anr. 286 - rel. paras
10 to 15
(iii) Mohan Kumar v. State of (2017) 4 SCC 92 -
Madhya Pradesh & Ors. rel. paras 18 to
(iv) Corporation of Madras & Anr. (2018) 9 SCC 445
v. M. Parthasarathy & Ors. - rel. paras 12 to
(v) General Manager, Oil & Oral Judgment
Natural Gas Corporation dated 05.02.2014
Limited v. Sp. Land in First Appeal
Acquisition Officer No.4182 of 2008.
(vi) General Manager, ONGC v. Oral Judgment
Patel Kanaiyalal Giridhardas dated 09.06.2015
in First Appeal
No.1724 of 2008.
XIII. Re: Appellants State's comments as regards non-
applicability of the Judgments cited by Ld.
Senior Advocate Shri Mihir Thakore, on behalf
of Respondents-Claimants:
On the aspect of grant of additional interest for
a period prior to notification under Section 4(1)
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of the Act:
1. R.L. Jain (D) By Lrs. v. Delhi Development
Authority, reported in (2004) 4 SCC 79.
The Respondents-Claimants have relied on paras
12 to 18 of the said judgment. Para 18 is sought to be
relied heavily by the Respondents to contend that
when possession is taken prior to the issuance of the
preliminary notification, it will be just and equitable
for the Collector to determine the rent or damages
for use of the property while determining the
compensation amount. First of all, it was not the case
of the Respondents before the learned Reference
Court that at any point of time they were seeking
damages/rent in lieu of dispossession prior to
issuance of preliminary notification. Infact, the
Respondents by virtue of Exh.121 dated 05.08.2021
sought an amendment for insertion of a prayer
seeking interest @ 9% for the first year and 15%
after the period of one year till the actual payment is
made, on the ground that since so many years, the
subject land has been in the possession of the
Appellant - State. Whereas, the said judgment
categorically observes in Para 16, that a view taken
in the matter of Asst. Commr. Gadag Sub-Division v.
Mathapati Basavannewwa, for granting an additional
amount at 12 percent per annum from the date of
taking possession, as incorrect view and upheld the
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view taken in case of Special Tehsildar (LA) PWD
Schemes v. M.A Jabbar, to be correct one, which held
that claimant would not be entitled to additional sum
for the period anterior to publication of notification
under Section 4(1). Accordingly, the learned
Reference Court has erred in awarding the interest
at rate of 15% for the period anterior to Section 4
Notification. This apart, in Para 18 of the aforesaid
judgment, the Hon'ble Supreme Court observes that
where the landowner is dispossessed prior to
issuance of notification under Section 4(1) of the Act,
it is open for the landowner to recover the possession
by taking appropriate legal proceedings. In this view
of the matter, the said judgment would not be of any
help to the Respondents.
2. Balwan Singh & Ors. v. Land Acquisition
Collector & Anr., reported in (2016) 13 SCC
3. Taher Khotoon & Ors. v. Revenue Divisional
Officer/ Land Acquisition Officer & Ors.,
reported in (2014) 13 SCC 613.
4. Madishetti Bala Ramul (Dead) By Lrs. v. Land
Acquisition Officer, reported in (2007) 9 SCC
In case of Balwan Singh (Supra), the Hon'ble
Supreme Court after taking into note the earlier
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judgments in case of Madishetti Bala Ramul v.
Land Acquisition Officer, reported in (2007) 9 SCC
650 and Tahera Khotoon v. Land Acquisition
Officer, directed to award additional interest by way
of damages @ 15 % from the date when the claimants
were dispossessed. It is submitted that the instant
judgment is rendered by the two Ld. Judges and
though it refers to the Judgment of R.L Jain (supra),
it took the view other than what is expressed by
three Ld. judges in R.L Jain's case (supra). In R.L
Jain's case (supra), the Hon'ble Supreme Court has
clearly held as under:
"12. ... Clearly, the stage for taking
possession under the aforesaid
provisions would be reached only after
publication of the notification under
Sections 4(1) and 9(1) of the Act. If
possession is taken prior to the
issuance of the notification under
Section 4(1), it would not be in accordance
with Section 16 or 17 and will be without
any authority of law and consequently
cannot be recognized for the purposes
of the Act. For parity of reasons the
words 'from the date on which he took
possession of the land' occurring in
Section 28 of the Act would also mean
lawful taking a possession in accordance
with Section 16 or 17 of the Act. The
words 'so taking possession' can under
no circumstances mean such
dispossession of the owner of the land
which has been done prior to
publication of notification under
Section 4(1) of the Act which is de
hors the provisions of the Act."
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(Emphasis supplied).
Therefore, all the three Judgments of the 2
Judge Bench, in respect of grant of 15 % additional
interest runs contrary to the Judgment of the 3 Judge
Bench in case of R.L Jain (supra), and thus, they
would be of no avail to the Respondents. Even
otherwise, on the facts, in all the three Judgments,
there was an admitted date of dispossession of the
claimants. Whereas, in the instant case, the aspect of
'title and possession' remained seriously disputed all
throughout the earlier proceedings and it became
final only after the Judgement of the Hon'ble
Supreme Court on 10.04.2006.
On the aspect of interest on Aggregate Amount:
5. Sunder v. Union of India, reported in 2001 (7)
SCC 211.
6. Gurpreet Singh v. Union of India, reported in
2006 (8) SCC 457.
The Respondents have relied upon the aforesaid
judgements on the point that the person entitled to
compensation awarded is also entitled to get interest
on the aggregate amount including solatium. There is
no dispute on the said proposition of law. The
fundamental objections to the judgment and order of
the ld. Reference Court are with regard to method
adopted for determination the market value of the
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subject land and the award of additional interest at
the rate of 15% per annum for the period anterior to
Section 4 Notification. As both, the method adopted
for determination of market value and the award of
additional interest are against the settled principles
of law.
On the aspect of determination of market value
by working out the average of price paid under
different sale transactions :
7. Mehrawal Khewalji Trust & Ors. v. State of
Punjab, reported in 2012 (5) SCC 432.
The Respondents have relied upon the aforesaid
judgement to contend that for determination of the
market value, the method of working out the average
price paid under different sale transactions should
not have been adopted. However, the said
proposition is not absolute and the same can be
discerned from the very judgment, in which, relevant
portion of para 15 reads as under:
"15. In State of Punjab v. Hans Raj this
Court has held that the method of working
out the "average price" paid under
different sale transactions is not proper
and that one should not have, ordinarily
recourse to such method..." Emphasis
supplied
In the instant case, the sale transactions
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available were for smaller extent of land and
therefore, the method adopted by the Land
Acquisition Officer in averaging out these sale
transaction cannot be faulted with.
On the question of Market Value
8. Major General Kapil Mehra & Ors. v. Union of
India & Anr., reported in (2015) 2 SCC 262.
Firstly, this judgement was relied upon by the
Respondents-Claimants to contend that the leasehold
land can be considered as comparable land for
determination of the market value of the freehold
land with an addition of 20% to arrive at the value of
freehold property. Secondly, while relying on
paragraphs 29 to 32, 34, 36, 39, 40 (15) and 40 (16)
of the aforesaid judgment, it was contended that in
the case at hand, no such development would be
required as the land would be used as parade ground
and therefore, there is no question of deduction
towards development. So far as the first contention is
concerned, it is pertinent to make clear that the
Exh.147 which was relied upon by the ld. Reference
Court for determining the compensation had never
been culminated into a transfer by lease. A challenge
to this effect is also raised in Ground 't' ( in Appeal
Memo, which is set out as under:
" t. That the Ld. Reference Court has even
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otherwise committed a grave error in
considering the minutes of the meeting
dated 13.09.2006 in respect of City Survey
Nos.12 & 13 situated at Vadodara Kasba,
since the said land was to be granted to
the Vadodara Municipal Corporation on
the lease basis, which was never fructified
and therefore, the valuation of the said
land could not have been relied upon in
determining."
Whereas, so far as the lease deeds at Exh.148
and Exh.149 referred to by the Ld. Reference Court
are concerned, the ld. Reference court has rightly not
accepted the said two instances for the reasons that
the said lands were covered under the Town Planning
Scheme, wherein scheme was already implemented
after making the provision for main road / other
amenities etc. Whereas, the subject land is in one
single unit and its area is very large and major
portion does not abut the main road. Furthermore,
the said lands under Exhs.148 and 149 vis-à-vis
subject land, are situated in different areas and,
therefore, the same are otherwise not comparable.
So far as, the contention regarding, no need to give
any deduction towards development cost is
concerned, the same is highly misplaced, in asmuch
as, apart from the use of the subject land as parade
ground, other uses such as roads, buildings and other
facilities are presently in existence and further many
such other uses are also in contemplation. It has
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already been pointed out hereinbefore, that the Ld.
Reference Court has ignored the factors pertaining to
the characteristics of the subject land viz. (i) Large
tract of land admeasuring 1,22,718 sq. mtrs., (ii)
Being in the shape of the strip of land. (iii) Having
more depth rather than frontage, which is practically
very minuscule portion, as compared to the entire
long periphery of the subject land. (iv) Low-lying to
the extent of 1.22 cubic mtrs. from surface of the
main road, requiring filing up, entailing expense for
the same, (v) Existence of water body admeasuring
about 10 vighas, (vi) Existence of railway track just
adjacent to entire strip of land on its southern side,
etc. Therefore, the contention that no development
would be required as the subject land would only be
used for the purposes of parade ground, is required
to be rejected.
9. General Manager, Oil and Natural Gas
Corporation Ltd. v. Rameshbhai Jivanbhai Patel,
reported in (2008) 14 SCC 745.
The Respondents-Claimants have relied upon
this judgment which lays down the mode of
determining the market value by providing
appropriate escalation over the proved market value
of nearby lands. In the said judgment, the Hon'ble
Supreme Court held that since the acquisition was in
rural area an escalation of 7.5 % per annum (i.e. half
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of the increase in market value of lands in
urban/semi-urban areas which is about 10 to 15 %)
over the 1987 price under Exh. 15 would be sufficient
and appropriate to arrive at the market value of
acquired lands. Therefore, given the facts of the
present case, the same would not be applicable.
Whereas, the Judgment cited on behalf of the
Appellant - State, in case of Executive Engineer,
Karnataka Housing Board vs. Land Acquisition
Officer, reported in (2011) 2 SCC 246 (Judgment
No. 10) - it has been observed as under:
"10. ... The relevant date for determination
of compensation in this case is 06.02.1992
and there is a gap of three years for which
appropriate appreciation has to be
provided for. Having regard to the fact
that the acquired lands were within
the municipal limits with considerable
development potential, adopting a
cumulative increase of 10% per annum
for three years, would enable us to
arrive at the market value as on
06.02.1992." .....(Emphasis supplied).
Therefore, the aforesaid Judgment in case of
Executive Engineer, Karnataka Housing Board
(supra) would squarely be applicable, to the subject
land being situated within the municipal limits of
Vadodara city.
10. Ashok Kumar & Anr. v. State of Haryana,
reported in (2016) 4 SCC 544.
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The Respondents have relied upon this Judgment
to put forth the proposition of law that the Reference
Court can always award higher compensation than
that claimed by the claimants. There can be no qualm
to the said proposition of law. The entire challenge is
based on the method adopted by the Ld. Reference
Court in determining the market value of the land
while ignoring the vital factors which would have
significant bearing upon the determination of market
value.
Gujarat High Court Judgements for grant of 15%
additional interest from date of possession till
Section 4(1) of the Act:
11. Judgement dated 17.01.2020 in First Appeal No.
5828 of 2019 in case of heirs of Decd. Nagjibhai
Valabhai v. Second Additional Special Land
Acquisition Officer & Ors.
12. Judgement dated 20.08.2018 in First Appeal No.
1213 of 2016 in case of Heirs of Decd. Velabhai
Valalbhai v. Second Additional Special Land
Acquisition officer.
Both the aforesaid Judgements are rendered by
Ld. Single Judges of this Hon'ble Court, while
relying upon the Judgement in case of Balwan Singh
(Supra), to grant additional interest by way of
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damages at the rate of 15% per annum from the date
of dispossession for the period prior to notification
under Section 4 of the Act. For the reasons, already
indicated hereinabove the Judgement in case of
Balwan Singh (Supra) runs contrary to the three
Judge Bench Judgment in R.L Jain's case (supra).
Furthermore, even on facts of these judgements of
this Hon'ble Court, the aspect of the dispossession
was not disputed and there was a clear cut date of
dispossession provided. It is pertinent to note that
the Ld. Division Bench of this Hon'ble Court in case
of General Manager vs. Chaudhary Mahotbhai
Hirabhai, reported in 2018 SCC OnLine Guj. 4618
has rightly considered the three Judge Bench
Judgment rendered in case of R.L.Jain (supra), in the
following manner:
"26. The judgement noted above, in clear
terms, hold that no interest can be
awarded either under Section 28 or 34 of
the Act prior to publication of notification
under Section 4(1) of the Act. If the
possession of the land is taken over
without authority of law, it would be
open for the land owner to seek
damages or compensation through
ordinary civil remedy..." (Emphasis
supplied).
Similar view has taken by this Hon'ble Court in
one another judgment dated 11.05.2018 in case of
Project Manager, ONGC Limited vs. Deputy
Collector, rendered in First Appeal Nos.919 and 920
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of 2023. In this view of the matter, even the
judgements of this Hon'ble Court would be of no help
to the Respondents.
On the aspect of 'legal possession' and 'de facto
possession':
13. Seksaria Cotton Mills Limited & Ors. v. State of
Bombay, reported in (1953) 1 SCC 561.
14. Sadashiv Shyama Sawant (Dead) through Lrs. &
Ors. v. Anita Anant Sawant, reported in (2010)
3 SCC 385.
The Respondents have relied upon the aforesaid
Judgements to contend that all orders/judgments,
right from Ld. GRT to the Hon'ble Supreme Court
talk about legal possession of the Respondents-
Claimants without de facto possession. Therefore, the
same cannot be a ground for not granting
rent/damages for a period prior to issuance of
Section 4 Notification. At the outset, it is stated that
one cannot have any qualm with the proposition laid
down in the aforesaid Judgments of the Hon'ble
Supreme Court. However, the same cannot be made
applicable to facts obtained in the present matter.
The Respondents-Claimants cannot be allowed to
approbate and reprobate on the aspect of possession.
All throughout the proceedings for title and
possession, right from the Ld. GRT to the Hon'ble
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Supreme Court, the Respondents-Claimants have on
top of their voice, claimed to be in the 'physical
possession' of the subject land. The aspect of the
physical possession of the Respondent-Claimants is
widely discussed in the orders/judgements of all the
foras and the same are highlighted in above Para - X
of these submissions in detail, which would go to
show that the contest between the Respondents and
the Appellant - State all throughout before the
different foras were in respect of 'physical
possession' and not with respect to legal possession.
It is now at the hindsight, it is sought to be canvassed
otherwise, and that too, at this stage of the matter.
15. Order dated 23.01.2017 in Civil Appeal No. 834-
835 of 2017 in case of Baldevji Sakraji Thakor v.
Group General Manager, ONGC & Anr. of the
Hon'ble Supreme Court.
The Respondents-Claimants have also relied
upon the aforesaid order passed by the Hon'ble
Supreme Court, wherein it set-aside the order of the
High Court and upheld the order of the ld. Reference
Court awarding interest from the date of such
possession was taken and handed over pursuant to
the provisions of Section 35 of the Act. It is pertinent
to note that in the said case, the possession was
taken pursuant to the provisions of Section 35 of the
Act, followed by possession receipt dated 13.03.1989
which embodied the terms and conditions on which
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possession was handed over including the fixation of
rent for the period of three years. In this background
of facts, the ld. Reference Court awarded interest
from the date of possession and directed that amount
of rent already paid to the land-owners shall be
adjusted. The relevant paragraph 6 of the said
judgement is as under:
"6. Insofar as award of interest is
concerned, from the "possession receipt"
dated 13.03.1989 emboding the terms and
conditions subject to which possession was
handed over by the landowner it is clear
that such possession was taken and
handed over pursuant to the provisions of
Section 35 of the Act. The terms and
conditions of handing over of possession
including the fixation of rent, therefore,
would remain in force for a period of three
years. The Reference Court in its order
dated 10.05.2013 took note of the above
facts and while awarding interest from the
date of possession as per the rates set out
in Section 34 of the Act, had specifically
directed that the amount of rent paid to
the land-owners should be deducted
therefrom.
7. We find no infirmity in the conclusion to
the above effect as recorded by the learned
Reference Court. Accordingly, we set aside
the order of the High Court insofar as
interest is concerned and restore the
interest awarded by the Reference Court."
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First of all, such facts are not borne out in the
present matter. Secondly, this Hon'ble Court had an
occasion to consider the said order passed in Baldevji
Sakraji Thakor's case, in case of General Manager vs.
Chaudhary Mahotbhai Hirabhai, reported in 2018
SCC OnLine Guj. 4618, wherein, it was observed as
under:
"30. We are not oblivion to the decision of
the Supreme Court in case of Baldevji
Shakraji Thakor (supra). It was a case in
which the reference Court had awarded
interest under Section 34 of the Act from
the date of taking possession by the ONGC
after adjusting the rent which might have
been paid for the interregnum period. The
reference Court issued direction making
interest payable from the date of publication
of Notification under Section 4 of the Act.
The High Court modified this direction
regarding interest. Upon further appeal, the
Supreme Court restored the award of the
reference Court in this respect. In case
of Baldevji Shakraji Thakor (supra), the
judgment of the three Judge Bench of
the Supreme Court in case of R.L.
Jain (supra) was not cited. At any rate,
we do not discern the ratio laid down by
the Supreme Court in case of Baldevji
Shakraji Thakor (supra) that upon
temporary occupation of the land under
Section 35 of the Act by the ONGC,
which, later on culminated into
acquisition under Section 11 of the Act,
interest would be payable on the
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enhanced compensation from the date
of possession.
31. We notice, that later on, the Supreme
Court in case of Ratibhai Shambhubhai
Patel Through POA Holder v. Oil and
Natural Gas Corporation Ltd. in order dated
18.04.2018 passed in Civil Appeal arising
out of SLP(C) No. 37719-37720 of 2016
provided that there shall be no interest
prior to issuance of Notification under
Section 4 of the Act even if the possession
had been taken earlier. It was left open to
the land owners to claim damages in
appropriate proceedings."
In this view of the matter, neither on facts nor
on the law, the order passed in Baldevji Sakraji
Thakor's case would be helpful to the Respondents-
Claimants.
On the aspect of production of additional
evidence:
16. Union of India v. Ibrahim Uddin, reported in
(2012) 8 SCC 148.
The Respondents-Claimants have relied upon
this judgment to canvass their submission that if the
Court can pronounce a Judgment on a material
available on record, then application for additional
evidence should be discarded. For the sake of
repetition, it is stated that the Appellant - State has
proposed to produce 15 additional documents i.e.
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Annexure A2 to A16. Out of the said 15 documents,
the documents from A2 to A9 are the public
documents and have been directly or indirectly
referred to in the land reference proceedings.
Whereas, the documents from Annexures A10 to A16
are the Agreements entered into between the land
owners and third parties in respect of very subject
land and therefore, have direct bearing upon the
adjudication of this present appeal. These documents
would not only enable this Hon'ble Court to
pronounce the judgment, but would further the
substantial cause in the captioned appeal. Therefore,
in facts of the present case, the aforesaid judgement
would be of no avail to the Respondents-Claimants.
XIV. Re: Appellant State's comments as regards
non-applicability of the Judgments cited by
Senior Advocate Shri P.K.Jani, on behalf of the
Respondents - Claimants:
17. Chimanlal Hargovindas vs Sp. Land Acquisition
Officer, Poona, reported in 1988(0) AIJEL- SC
5162 = (1988) 3 SCC 751 - relevant para - 1
to 15:
Infact, the aforesaid judgement very much
applies to the facts of the present case. The said
Judgement in its para - 4 (1 to 15), has laid down the
principles for determining genuine sale price of a
land, which a willing purchaser is prepared to pay to a
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vendor, who is willing to sell at a reasonable price and
that all such principles have been totally lost sight of
by the Ld. Reference Court in the present case.
18. State of Gujarat, Through Sp. Land Acquisition
Officer vs. Amaji Mohanji Thakore, reported in
2010(0) AIJEL - HC - 223782 = 2010(4) GLR
3589 - relevant para - 25 & 28:
In the aforesaid case, this Court had dealt with
a case wherein, the market price of the nearby
comparable piece of government land determined as
per the provisions of the Act (and not as per the
Government Circular dated 23.09.2002) in immediate
past for allotting the same to an organization, was
sought to be made applicable to the land under
acquisition, located in the very village. This was
opposed on behalf of the State Government on the
ground that the market price determined by the
Valuation Committee for allotting the government
land, being on a higher side, cannot be relied upon by
the Trial Court.
This Court rejected the said argument on the
ground that such a dual stand on the part of the State
Government is discriminatory and arbitrary, because
the State Government cannot contend that if the
State Government is to allot the land to any citizen or
a body, higher price shall be fixed as the market
price, whereas if the State Government is to acquire
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the land belonging to any citizen or any organization
it shall pay less price.
In view of the above, the said judgment
cannot be pressed in service at the behest of the
Respondents - Claimants, more particularly for the
following two reasons:
(a) In the above referred Judgement, District
Valuation Committee had determined the market
price of the comparable pieces of land for the
purpose of sale (and not for the purpose of
lease) at Rs. 65/- per sq.mt. vide order dated
21.09.1998 (pl. see para - 14 of the said
Judgment) in favour of M/s Anarde Foundation
and at Rs.160 per sq.mt vide order dated
16.10.1998 in favour of M/s Umiya Kadva
Patidar Trust, which were sought to be made
applicable to the land under acquisition vide
Section- 4 notification dated 03.07.2004 for the
purpose of 'Sujlam Suflam Spreading Canal'.
Whereas, in the present case, valuation of a
piece of land bearing City Survey Nos. 12 & 13,
admeasuring 6125.64 sq.mtrs. by the District
Valuation Committee was determined for the
purpose of granting the same on lease basis.
(b) In the aforesaid Judgment, District Valuation
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Committee had determined the genuine sale
price in the year 1998 in the absence of a
Government Circular dated 23.09.2002.
Whereas, in the present case the valuation of
land bearing City Survey Nos. 12 & 13,
admeasuring 6125.64 sq.mtrs of Vadodara City,
was determined by the District valuation
Committee by relying upon the aforesaid
Circular, which is not applicable to the cases of
land acquisition, but applicable to the lands to
be granted on lease basis.
19. Sp. Land Acquisition Officer vs. Korigowda,
reported in (2010) 5 SCC 708 - relevant para -
82:
The aforesaid judgment (more particularly paras
- 71,82 & 83) helps the Appellant - State rather than
the Respondents - Claimants. In para 82, of the said
judgment, it has been categorically observed as
under:
"82 ... ... ... Comparable sales methods of
valuation is preferred because it furnishes
the evidence for determination of the
market value of the acquired land which a
willing purchase would pay for the
acquired land if it has been sold in open
market at the time of issue of notification
under Section 4 of the Act. In Kantaben
Manibhai Amin vs. Land Acquisition
Officer, this Court also stated that latest
sale instance clause to the date of
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notification for acquisition of the land
should be taken into consideration."
(Emphasis supplied)
In the present case, as discussed in the
foregoing paras of these written submissions, in both
the documentary evidences relied upon by the
Respondents - Claimants in terms of Exhibits 146
and 147, the past incidents were not of sale, but of
lease, and over and above that, none of the said
leases have ever been fructified.
20. Haren J. Doshi vs. Pradaprai Gaurishankar
Trivedi, reported in 2018 (0) AIJEL - HC
239236 - relevant paras - 9 to 12:
The aforesaid judgement of this Hon'ble Court
does not apply to the facts of the present case, since
what was considered in para - 9 of the said case was
the applicability of the clause (aa) of Order 41 Rule
27 of CPC, while keeping in mind the fact that in the
said judgement, the applicant attributed subsequent
knowledge of the documents produced by way
additional evidence on the basis that the applicant
got the information about the said documents from
his lawyer, since the said documents were part of the
files lying in his office (i.e. lawyer's office).
Apart from what is mentioned above, this
Hon'ble Court had reached a conclusion in para - 12
of the aforesaid judgment that the documents
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produced by way of additional evidence in the said
case, were not germane to the issue and not
necessary for pronouncing the Judgment.
In the present case, all the 15 additional
documents sought to be produced by the Appellant -
State are germane to the issue and necessary for
pronouncing the judgment.
21. Sirajudheen vs. Zeenath, reported in 2023 (0)
AIJEL - SC 70437 - relevant para - 9 & 14.
The aforesaid judgement of the Hon'ble
Supreme Court is not applicable to the present case
since, the concerned Hon'ble High Court in that case,
had remanded the suit to the Trial Court, without
coming to the decision that the findings recorded by
the Trial Court were unsustainable and unjustified.
Whereas, the facts of the present case are totally
different from those obtaining in the aforesaid
judgement. In the present case, only evidence on the
basis of the whole impugned Judgement and Award
of the Ld. Reference Court proceeds, is Exh. 147,
which is, as discussed hereinabove, not an evidence
worth considering and on the other hand, there is
ample evidence on record as well as additional
evidence sought to be produced on record by the
Appellant State, to establish that the whole matter is
either required to be decided afresh by this Hon'ble
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Court or alternatively by the Ld. Reference Court on
remand as per the provisions of Order 41 Rule 23-A
of Civil Procedure Code.
Whereas as regards the admissibility of
additional evidence, the Hon'ble Supreme Court in
para-8 of the aforesaid Judgment, has observed as
under:
"8. As observed and held by this Court
in A. Andiswamy Chettiar v. A. Subburaj
Chettiar [(2015) 17 SCC 713], the
admissibility of additional evidence does
not depend upon the relevancy to the issue
on hand, or on the fact, whether the
applicant had an opportunity for adducing
such evidence at an earlier stage or not,
but it depends upon whether or not the
appellate court requires the evidence
sought to be adduced to enable it to
pronounce judgment or for any other
substantial cause. It is further observed
that the true test, therefore is, whether
the appellate court is able to
pronounce judgment on the materials
before it without taking into
consideration the additional evidence
sought to be adduced."
(Emphasis supplied)
Thus, this part of the aforesaid Judgment, in
fact, favours the Appellant - State, more particularly
in the matter of admissibility of its additional
evidence.
XV. Re: Conclusion:
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1. In light of the aforesaid discussion, it is very
clear that the impugned common Judgment and
Award of the Ld. Reference Court suffers from
multiple vices as demonstrated in the foregoing
paragraphs of the Written Submissions, whereupon
the findings recorded therein, are unsustainable and
unjustified and consequently, the same deserve to be
modified, failing which, quashed and set aside.
Additional evidence sought to be produced by the
Appellant-State is not only germane and relevant to
the controversy in question, but the same would
definitely enable this Hon'ble Court to pronounce the
judgment and that apart, the same deserves to be
taken into consideration for a substantial clause.
2. In view of the above, this Hon'ble Court may be
pleased to allow the Civil Application Nos.2 and 3 of
2023 filed by the Appellant - State in its F.A.No.11 of
2023, and such other Civil Applications filed in
F.A.Nos.21 and 22 of 2023, seeking leave of this
Hon'ble Court to permit the production of additional
evidence and after considering the same, be further
pleased to allow the captioned appeals, while
modifying the said impugned Judgment and Award of
the Ld. Reference Court by, inter-alia, holding that
the correct rate of the subject land should be
Rs.6,100/- per sq.mtr., arrived at on the basis of past
sale instance of 25.01.2005 of Rs.10,038.80 per
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sq.mtr., instead of Rs.26,048/- per sq.mtr. arrived at
by the Ld. Reference Court and the final award
amount should be to the tune of Rs.198,29,43,589.00
as per the "Statement showing fair valuation of the
subject land", submitted on 12.10.2023 on behalf of
the Appellant State during the course of hearing ,
instead of the final awarded sum of
Rs.1872,41,64,438.73 as on 17.02.2023. The
statement reads as under:
3. Alternatively, this Court may be pleased to
quash and set aside the said impugned Judgment and
Award of the Reference Court and to remand the
matter back to the Reference Court, for
reconsideration of the entire controversy afresh,
within a particular time-limit, while permitting the
Appellant - State to produce the additional documents
which are sought to be produced before this Hon'ble
Court along with its Civil Applications referred to
above, before the Reference Court.
4. This Court may be pleased to reject the cross-
objections filed by the Respondents - Claimants,
seeking the enhancement in the rate of market price
of the subject land from Rs.26,048/- per sq.mtr. to
Rs.65,000/- per sq.mtr., in light of what is discussed
hereinabove.
6. Mr. Mihir Thakore, learned Senior Advocate appears
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with Mr. Tarak Damani, learned advocate for the defendant
no.5 in the First Appeal and in the concerned cross-objections
and Mr. Prakash Jani, learned Senior Advocate appears with
Mr. Shivang P. Jani for some of the respondents in the First
Appeal and in the Cross-objections. Learned Senior Counsels
too have filed an extensive paperbook of written submissions.
The submissions are reproduced as under:
The Appellants have challenged the impugned
judgment and order passed by the Ld.
Reference Court mainly on two
counts/grounds:
I. That the Reference Court has wrongly
awarded interest @ 15% per annum from
the date of possession i.e. 29.11.1991 till
Section 4 notification, on the ground that
possession had been with the Respondents
and the law does not permit granting of
such interest.
II. That the compensation granted of Rs.
26,048/- is very high and not as per the
prevailing market value.
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In view thereof, we will deal the issue with
regard to awarding of interest from the date of
taking over possession and the issue of
quantum of compensation separately.
1. ISSUE OF INTEREST FROM THE DATE OF
TAKING OVER POSSESSION TILL
NOTIFICATION:
a. Firstly, what the learned Reference Court has
granted is not interest but the rent /
damages/ compensation / mesne profit to
the Claimants in respect of possession of the
subject matter of land taken from 29.11.1991
till the notification under Section 4 of the Act,
1894 issued by the State Government dated
29.02.2007.
b. As far as granting of interest is concerned,
under the Act the same is provided under
Sections 23(1)(a), 28 and 34 . The rent /
compensation granted by the Ld. Reference
Court from the date physical possession is
certainly with the State is not granted under
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Section 23 or 28 or 34 of the Act, which would
be evident from the facts and law discussed
below as well as in the impugned judgement
and order.
c. The Claimants state that the Ld. Reference
Court has found that the acquiring body was in
possession of the entire parcel of land from
29.11.1991. On 29.11.1991, Gujarat Revenue
Tribunal in a proceeding under Section 37 of
the Gujarat Land Revenue Code, 1879 which
provision is in relation to procedure for
establishing ownership of a private party. In
the said proceedings, on 29.11.1991, Gujarat
Revenue Tribunal has held that the Claimants
are the owners of the land and they are in
legal possession of land. However, even as per
the admission of acquiring body and its
officers and other contemporaneous records,
the Claimants have established that the
acquiring body was in actual/physical
possession of land from 29.11.1991 and prior
thereto.
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d. For the purpose of establishing the fact, that
all throughout, at least from the year 1960,
the physical possession has been with the
Appellants, the following documents in the
Paper Book clearly show and establish the
same:
Sr. Particulars Page
Relevant Description of
No Nos.
Pages / the Document
. inParas of
Paper the
Book
Documen
t
1. Order dated 365 to @ 368 The said paras
07.04.1980 373 (last clearly show
passed by Exh. para), @ that Fatehsinh
the learned 132 369 last 2 Regiment had
Deputy lines of been in
Collector, para 1, @ Physical
Vadodara. 370 Para Possession of
4, @ 371 the subject
Land.
2. Order dated 374 to @ 379 Survey no. 371
14.05.1983 382 Para 10, & 372 were
passed by Exh. @ 380 part of the
the District 133 final order acquisition
Collector, carried out for
Vadodara. Fatehsinh
Regiment and
the State is the
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owner of the
said Land.
3. Panchnama 383 to @ 385, Clearly shows
dated 395 387, 388, that the
06.09.1992 Exh. 391, 392, Physical
carried out 134 394 (Note Possession of
in Civil (Typed on the the subject
Appeal No. copy top) Land is with
194 of 1992. given SRP and also
during shows the
hearin different
g) activities like
Parade ground,
Hockey ground,
Arms and
ammunition
storage and
other purposes
for which the
subject Land
was being used
by the State.
4. Special Civil 20 to Paras 1, The State in its
Suit No. 776 28 2(b), 2, 8, pleading,
of 1992 filed 9, 11, 12 admits that
by the State and the Physical
Government prayers @ Possession of
page 27 the subject
para 19(a) Land is with
& (b) SRP and also
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shows the
different
activities like
Parade ground,
Hockey ground,
Arms and
ammunition
storage and
other purposes
for which the
subject Land
was being used
by the State.
5. Deposition 407 to Paras 2, 3, The deponent
dated 419 4, 5, 6, 7, in the Suit
15.01.1994 Exh. 9 admits that the
of 136 Physical
Commandan (Typed Possession of
t Mr. Malhar copy the subject
Rao in given Land has been
Special Civil during with the State
Suit No. hearin for last many
776 of 1992 g) years and also
mentions with
regard to
different
activities being
carried out by
the State on
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the said Land.
6. Letter dated 567 to Para 2 @ By the said
22.05.2002 569 567 Letter, it is
of AGP, HC Exh. evident that
to Secretary 180 the value of the
Legal subject Land is
Department more than Rs.
200 crores and
Physical
Possession is
with the State.
7. Letter dated 524 to Para 2 @ By the said
28.05.2002 525 524 Letter, it is
by SLR to evident that
Collector. the value of the
subject Land is
more than Rs.
200 crores and
Physical
Possession is
with the State.
8. SLP No. 570 to Ground By the said
16273 - 611 5(A) @ Letter, it is
16275 of Exh. page 575, evident that
2002 dated 181 5(C) & the value of the
08.08.2002 5(D) @ subject Land is
page 576, more than Rs.
Para 3 @ 200 crores and
page 595 Physical
Possession is
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with the State.
9. Letter dated 617 to Para 1, 3, By the said
18.09.2006 621 4, 6, 8, 9 Letter, the
by Senapati Senapati
to Collector requests the
Collector to
invoke urgency
clause under
the Act and
legally acquire
the said Land
and ensure
that the
physical
possession of
the State is not
disturbed.
10. Letter dated 616 By the said
25.09.2006 Letter, the
by Senapati Senapati
to Learned requests the
Collector Collector to
invoke urgency
clause under
the Act and
legally acquire
the said Land.
11. Letter dated 615 By the said
25.09.2006 Letter, the
by Senapati Senapati
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to Learned requests the
Collector Collector to
invoke urgency
clause under
the Act and
legally acquire
the said Land.
12. Award dated 96 to @ 103 The subject
11.12.2008 111 Second land is a N/A
Exh. last para Land and is
131 onwards being utilised
for non-
agriculture
purpose by the
acquiring body
for last any
years.
It is submitted that from the aforesaid
documentary evidence which are of the record
of the acquiring body and the state
government, it is clearly established that the
acquiring body was in possession of the land
atleast since prior to 29.11.1991. Admittedly,
the subject land was used as parade ground
for SRP, hockey ground, basketball ground,
shooting range, helipad for landing of
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Dignitaries by helicopter and also arms and
ammunitions were being stored in the said
land and thereby no outsider was even allowed
to enter without permission and having
security check which is clear and evident from
the above documents.
e. As far as the ownership of the land is
concerned, admittedly, Late Mr. Mahendra
Desai had been litigating from the year 1960
and it is only when the order dated 29.11.1991
was passed by the Learned GRT, the legal
ownership was held to be that of Late Mr.
Mahendra Desai and his family. The following
are the documents which establishes that the
legal ownership and legal possession was of
Late Mr. Mahendra Desai and his Family:
Sr. Particulars Page Relevant
No Nos. Pages / Paras
. in of the
Paper Document
Book
1. Order dated 1 to 19 @ para 13, 16,
29.11.1991 17, 18, 25
passed by learned [@ Page 18
(Para 25) it
GRT
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has been held
that from
documentary
evidence,
possession is
that of Late
Mahendra Desai
and his family]
2. Judgment and 29 - @ Page 45
decree dated 75 (Issue No. 3), @
21.03.1994 below Page 50 bottom,
Special Civil Suit Page 51, Page
No. 776 of 1992 63 bottom till
Page 65
3. Order dated 76 - @ Page 88
passed by this
Hon'ble Court
below First Appeal
No. 969 of 1994
4. Order dated 89 - @ Page 95 (Top
10.04.2006 95 para)
passed by the
Hon'ble Supreme
Court
f. From the above documents as shown above in
para e, it is clearly established that the legal
ownership was held to be that of Late
Mahendra Desai and his family and thereby,
even the legal possession would belong to
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them. But as far as physical possession is
concerned, from the documents shown in para
d, it clearly establishes that the physical
possession, at least from the year 1960, has
been with the Appellants. Furthermore, the
Appellant-State in all its pleadings, be it Civil
Suit, First Appeal or SLP, everywhere they
have stated that the physical possession of the
subject Land is with the State Government and
thereby, the Respondents herein seek to rely
on Section 58 of the Indian Evidence Act,
1872, which states that the facts admitted
need not be proved. As the ownership of Late
Mahendra Desai has been established by the
order of Ld. GRT dated 29.11.1991, and on the
other hand, physical possession of the State is
established from catena of documents as
referred to in para d above, at least from 1960
and thereby, the Ld. Reference Court, while
passing the impugned order has granted rent /
damages/ mesne profit, from 29.11.1991.
g. Law in respect of physical possession and
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legal possession:
i. Para 1211 and 1212 Volume 35
Halsbury's Laws of England.
The same distinguishes between de-
facto possession and legal
possession - A person may have
legal possession but that does not
mean he has de-facto
possession/physical possession.
ii. 1953 (1) SCC 561 in the matter
between Seksaria Cotton Mills LTD
and Others V/S State of Bombay.
Relevant paras 18 to 20.
iii. 2010 (3) SCC 385 in the matter
between Sadashiv Shyama Sawant
(Dead) V/S Anita Anant Sawant.
Relevant paras 1, 18 to 23 .
h. Law in respect of rent / damages to be paid
from the date of physical possession till
Section 4 notification under the Act:
i. 2004 (4) SCC 79 R. L. Jain V/S
Dehli Development Authority.
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Relevant Para 18.
ii. 2007 (9) SCC 650 Madishetti Bala
Ramul V/S Land Acquisition Officer.
Relevant paras 11 to 20.
iii. 2014 (13) SCC 613 Tahera
Khotoon V/S Regional Division
Officer. Relevant Paras 9 to 15.
Here the Hon'ble Supreme Court
directed State Government to pay
rent / damages @ rate of 15% from
01.01.1938 till date of issuance of
notification i.e. 10.01.1996.
iv. 2016 (13) SCC 412 Balwan Singh
V/S Land Acquisition Collector.
Relevant paras 2 to 4.
v. Civil Appeal Nos. 834-835 of
2017 (arising out of SLP (C) Nos.
32680-32681 of 2015) dated
23.01.2017 in the matter between
Baldevji Sakraji Thakor V/S Group
General Manager, ONGC. Relevant
paras 6 and 7.
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vi. First Appeal No. 1213 of 2016 ,
Gujarat High Court dated
20.08.2018 in the matter Heirs of
Deceased Velabhai Valabhai V/S
Second Additional Land Acquisition
Officer. Relevant paras 3.7 to 6.
vii. First Appeal No. 5828 of 2019 ,
Gujarat High Court dated
17.01.2020 in the matter Heirs of
Deceased Nagjibhai Valabhai V/S
Second Additional Land Acquisition
Officer. Relevant paras 2 to 7.
i. The Reference Court, while passing the
impugned order, has granted rent / damages to
the Respondents herein @ rate of 15% from
the date of physical possession which is
considered to be the date on which the legal
ownership of Late Mahendra Desai and his
Family had been declared i.e. 29.11.1991. All
the judgments referred to in above para 'h',
clearly lays down the ratio that the land owner
is entitled to get rent or damages for use and
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occupation for the period the Government
retains the possession of the property. Taking
into consideration the said aspect, from the
documents relied upon in above Para 'd'
clearly establish that the physical possession
has been with the State Government even prior
to 1991 but then also the Ld. Reference Court
has only granted the rent / damages @ rate of
15% only from 29.11.1991.
j. The State Government has relied upon the
judgments in the case of Budh Singh & Ors.
(supra), R.L. Jain (supra) and Mahender
Singh (supra). These judgments only lay
down the proposition that under Section 23, 28
& 34 of the Act, no interest can be awarded
prior to date of notification under Section 4.
This principle is self-evident from the said
provisions themselves. These judgments do not
lay down that no damages/rent/mesne profit
can be granted from date of taking possession
to the date of section 4 notification. The 3
judge bench judgment referred to in para h(i)
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as well as relied upon by the State Government
above clearly lays down the principle that
damages can be awarded for the period prior
to Section 4 notification (para 18 of 2004 (4)
SCC 79). In view of this, the judgments relied
upon by the State has no application to the
issues arising herein.
k. It is submitted that in the facts of the present
case, the Reference Court has granted the
rental amount at the rate of 15% on the total
amount that is consistent with the Supreme
Court judgements. In view of this, it is
submitted that the documentary record which
is in custody of government and acquiring
body conclusively establishes that the
Appellants-acquiring body were in possession
of the land prior to Section 4 notification and
therefore, the Reference Court has rightly
awarded amount by way of rent/damages to the
Claimants following the judgements of Hon'ble
Supreme Court.
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2. ISSUE WITH REGARD TO MARKET VALUE
OF THE SUBJECT LAND:
a. The Appellants of the First Appeal had not
produced any documentary evidence in
opposition to the claims made by the
Claimants in the reference proceedings. It is
submitted that the Appellants have not
disputed the existence of the documents
produced by the Claimants nor the contents of
the documents were disputed by the
Appellants before the Reference Court.
b. Before the Reference Court, the Claimants had
produced as many as 29 documents in support
of their case. However, for the purpose of
determining the market value of the land
under acquisition at the date of publication of
the notification under section 4(1) of the Land
Acquisition Act, 1894, the
Respondents/Claimant had relied on the
following four documents :
Sr. Particulars Rate Page No.
No. in Rs.
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1. Land Price committee 28,000 122 to 128
Report dated 17.04.2000 /- Exh. 146
in respect of nearby (Relevant
554 admeasuring 21414 @ Page
square meters and 4038 126)
square meters given on
lease to Welcome Hotel
for 30 years.
2. Minutes of meeting of 40,000 129 to 146
District Land Valuation /- Exh. 147
Committee dated (Relevant
market value of Land of @ Page
City Survey nos. 12 and 143)
13 admeasuring about
6125.64 square meters
given on lease to VMC
for parking for 30 years.
3. Lease deed for a period 40,200 146 to 167
of 99 years dated /- Exh. 148
24.05.2007 executed by
VMC for nearby Plot No.
166 admeasuring 2200
square meters
4. Lease deed for a period 45,500 168 to 188
of 99 years dated /- Exh. 149
24.05.2007 executed by
VMC for nearby Plot No.
549/1 admeasuring 5556
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square meters
Note: The Appellant/State has produced circular
dated 23.09.2002 before this Hon'ble High Court
(Page-114 of Paperbook) for the 1 s t time. In the
said circular, the Chief Town Planner of State
has stated that land area above 1500 sq. meter is
to be considered as big plot.
c. Admittedly, the land acquisition officer while
passing the award dated 11.12.2008 (at Page
96), in the said award at page 104, has stated
that looking at the documents provided and
looking at the potentiality of the land, the
market value of the land is approximately Rs.
20,790/-, and even according to his own
personal opinion, the market value of the land
is Rs. 10,000/-, yet while passing the impugned
award, the market value has been considered
as only Rs. 1914/-, solely on the basis of the
opinion given by the District Land Valuation
Committee.
d. It is submitted that in the present case, date of
issuance of Section 4 notification is
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09.02.2007. It is submitted tha t document Exh.
146 dated 17.04.2000 (@ 122, relevant page
126) shows that the District Valuation
Committee of Vadodara had fixed the valuation
of the land in the same area at Rs. 28,000/-
per sq. meter. It is sub mitted that if the
valuation of the land in the same area was Rs.
28,000/- per sq. meter as per the report of the
District Valuation Committee consisting of
government officers, the valuation of the
present land on 9th February, 2007 will be on
a higher side in as much as nearly after 6
years 10 months, the present lands are
acquired. It is submitted that if flat rate
increase of 15% is considered, then, Rs.
28,000/- value of land would be worth at least
Rs. 56,000/-. It is submitted that having regard
to the sale instance of the year 2000 i.e. Exh.
146, the value of the land in the present case
on 09.02.2007 will be at least Rs. 56,000/- as
against the same the Ld. Reference Court has
awarded Rs. 26,048/- per sq. meter.
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Admittedly as per the settled position of law,
in an urban area 10% to 15% annual rise in the
valuation of land is the norm.
e. It is submitted that in the same area, Vadodara
Municipal Corporation had given the open
parcel of land by way of lease of 99 years with
other stipulations. It is submitted that lease
deed entered into between Vadodara Municipal
Corporation and private party in public
auction is shown to be Rs. 40,200/- in one case
(Exh. 148 @ page 147 Paperbook). It is
submitted that another lease agreement dated
24.05.2007 (Document Exh. 149 @ page 168
Paperbook) shows that Vadodara Municipal
Corporation had given the land by way of lease
of 99 years for Rs. 45,500/- per sq. meter. It is
submitted that bot h the aforesaid lands were
to be developed and those lands did not have
the same advantage of location as the present
land under acquisition. Additionally, lease is
not the transfer of title and thereby, a lessee
does not get the same amount of right which
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an owner of the land would have. An owner of
the land is in a better position than the one
who has the lease hold right. In the present
case, on 09.02.2007, which is the date of
notification under section 4 and which date
and event is quite proximate to the above two
lease agreements dated 24.05.2007 shows that
land was given at Rs. 40,200/- and Rs. 45,500/-
per sq. meter. In view of the aforesaid, by no
stretch of imagination, it can be contended by
the Appellant that amount of Rs. 26,048/- as
awarded to the claimant by Reference Court is
on a higher side. It is submitted that the
subject matter of the land which is acquired is
already fully developed and on the national
highway. It has the best of the location in the
city of Vadodara. Across the road, there is a
palace of Maharaja and museum and all
important locations of city of Vadodara are in
proximate connection with the present land.
Railway station of Vadodara and bus stand of
Vadodara and main lands of Vadodara are
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hardly at a distance of 500 meters.
Additionally, the entire land is fully developed
and no amount of expenditure in terms of
putting any infrastructural cost is required.
Since the entire acquired land has been in
possession of the state reserve police for
decades and thereby no amount of any
deduction of any area of land for creating
roads or other infrastructure is required. It is
submitted that for the foregoing reasons,
having regard to the documentary evidence at
Exh. 146, 147, 148 and 149, it is submitted
that amount awarded by Reference Court
determining the value of the land at Rs.
26,048/- is on a lower side.
f. The documents provided below Exhibits 147,
148 and 149 respectively (at Page Nos. 118,
147 and 168 respectively), also clearly
evidences the fact that the market value of
those nearby lands were assessed to be Rs.
43,000/-, Rs. 40,200/- and Rs. 45,500/-
respectively, which the Ld. Reference Court
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has failed to consider while passing the
impugned order. The market value of the
subject land is far higher than the
compensation granted by the Ld. Reference
Court and admittedly the Respondents herein
had sought for Rs. 65,000/- per square meters
as compensation and as against that only Rs.
26,048/- has been granted and thereby the
cross objections hav e also been filed for Your
Lordships consideration for the purpose of
seeking of enhancement in compensation.
g. It is submitted that the Ld. Reference Court
has relied upon the document Exh. 147 dated
13.09.2006. The same pertains to grant of land
by State Government for a period of 30 years
to Vadodara Municipal Corporation for
planning of traffic. It is stated that the above
land and the land under acquisition are in one
locality/one Kasba. It is submitted that Ld.
Reference Court deducted an amount at the
rate of 25% of the wide frontage of the area.
The Reference Court further deducted amount
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at the rate of 25% of advantage of location and
arrived at amount of Rs. 25,004.98/- and
thereafter, gave increase of 4.17 % for five
months and thereby, arrived at the figure of
Rs. 26,048 per sq. meter.
h. It is submitted that it is the case of the
Appellant that method of arriving at the
valuation of the land as per the government
circular dated 23.09.2009 will not be
applicable in the case where the State
Government acquires land of private parties
under the Land Acquisition Act, 1894. It is the
case of the Appellant that the effect of circular
dated 23.09.2009 is that when the State
Government gives its land by way of sell or
lease and thereby the formula as per circular
dated 23.09.2009 will not be applicable when
the State Government acquires the land of
citizen under the Land Acquisition Act, 1894.
It is submitted that the aforesaid stand of the
State Government is held to be not acceptable
by the Division Bench of this Hon'ble Court in
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a judgment reported in 2010 (4) GLR 3589,
relevant paragraphs are 21, 25 & 28 .
i. It is submitted that in view of the principles as
laid down by the Division Bench of Gujarat
High Court in the above judgment, it is not
open on the part of the State Government and
its officers to contend that for the purpose of
giving the land to the citizen owned by the
State Government, formula and procedure and
principle as laid down in the circular dated
23.09.2009 would apply and while taking the
land of the citizen under the Compulsory
Acquisition of Land Acquisition, the valuation
method as prescribed by the State Government
in its circular dated 23.09.2009 will not apply.
It is submitted that in the instant case, the Ld.
Reference Court has relied upon the price
fixed for the lease to be entered into between
State of Gujarat and Vadodara Municipal
Corporation of the land which is in the same
city and in the same locality. It is submitted
that while granting the land, to Vadodara
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Municipal Corporation for a period of 30
years, valuation committee had followed the
principle of circular 23.09.2009. In view of the
foregoing reasons, it is submitted that award
of the Ld. Reference Court determining the
price of the subject matter of the land at Rs.
26,048/- on the basis of a document which is
entered into between State of Gujarat and
Vadodara Municipal Corporation cannot be
faltered in any manner.
j. As far as the issue with regard to the market
value of land is concerned and as to how the
same is required to be computed / calculated,
in respect of the same the law is very well
settled and enumerated by the Hon'ble
Supreme Court in catena of decisions. The
Respondents herein most respectfully wishes
to rely on the following decisions of the
Hon'ble Supreme Court:
i. 2008 (14) SCC 745 in the matter of
General Manager, ONGC V/S Rameshbhai
Jivanbhai Patel & Others. The relevant
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paragraphs are 10 to 17.
ii. 2016 (4) SCC 554 in the matter of
Ashokkumar & Others V/S State of
Haryana. The relevant paragraphs are 6
to 12.
iii. 2015 (2) SCC 262 in the matter of Major
General Kapil Mehra & Others V/S Union
Of India & Others. The relevant
paragraphs are 10 to 40.
k. The Appellants while arguing on the issue of
market value has argued that the market value
of a small land cannot be compared as to that
of a larger parcel of land. Admittedly, the
documents relied upon by the Respondents for
the purpose of determining the market value
i.e. the documents with regard to Exhibit 147
the land size is 6125.64 square meters, Exhibit
146 the land size is 21414 square meters and
4038 square meters, Exhibit 148 land size is
2200 square meters whereas Exhibit 149 the
land size is 5556 square meters (as per
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circular dated 23.09.2002, any land above
1500 sq meters is a l arge land). The
documents that the Respondents had relied
upon for the purpose of determining the
market value, if the average of the said rate is
also considered the same would be almost to
the tune of Rs. 42,000/-. Furthermore, even if
the argument of the Appellants is considered
that the land in question is much larger than
the lands which are taken for comparison, in
that scenario the Hon'ble Supreme Court in
the case of Sajan V/S State of Maharashtra
and Others reported in 2020 (14) SCC 139
(relevant para nos. 13 to 16) has held that
the deduction in large portion of land should
be done taking into consideration the
deduction towards development and the
deduction has to be carried out on the basis of
the purpose of acquisition for which the land
is being acquired. Admittedly, in the present
case the subject land has been acquired for
the purpose of parade ground and the
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development had already been undertaken
long back and thereby there is no reason for
any deductions. Even if it is assumed that any
deduction is required than also for the purpose
of development of ground and other activities
for the police, wherein the maximum deduction
that would be required would be maximum of
15% to 20%. And thereby even if the said
deduction is done from the average market
value available, the compensation awarded by
the learned Reference Court is less compared
to the available market value.
l. The Appellants had also contended that the
leasehold price or auction price should not be
considered when the sale price is available.
Admittedly, no sale price of any such
comparable land or any such proper land is
available which can be compared. The land
acquisition officer while passing the award had
relied on one such sale instance, wherein he
himself in his own opinion was not satisfied
with the land taken in comparison, whereby he
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had awarded Rs. 1914/-. Wherein according to
Jantri value the rate was Rs. 6300/-, according
to the land acquisition officer the rate
according to the document supported was
more than Rs. 20,000/- whereas as per the
opinion of the land acquisition officer himself
the market value of the land was at least Rs.
10,000/-. From the documents available on
record it is clear and evident that there was no
comparable sale which was available and
thereby the four documents in respect of the
long term leasehold rights were relied upon.
The Hon'ble Supreme Court in the case of
Kapil Mehra V/S Union of India reported in
2015 (2) SCC 262 in paragraphs 21 to 24
has discussed the issue with regard to freehold
vis-à-vis leasehold market value, in
paragraphs 25 to 28 they have discussed the
issue with regard to deduction towards
competitive bidding. If the same ration is
applied to this case then 20% has to be added
to the market value of the leasehold land and
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20% has to be deducted towards competitive
bidding from the available market value of the
leasehold land. In view thereof, adding and
deducting would make the market value to be
the same. The ratio laid done by the Hon'ble
Supreme Court in matter of Kapil Mehra is
squarely and directly applicable in the facts of
the present case.
m. As far as the issue with regard to the grant of
interest under Section 23, 28 & 34 are
concerned, the same is very well settled by the
five Judges bench of the Hon'ble Supreme
Court in the cases of Sunder V/s. Union of
India reported in 2001 (7) SCC 211 & in the
mater of Gurpreet Singh V/s. Union of India
reported in 2006 (8) SCC 457. The said
decisions have further been relied upon in the
case of Mehrawal Khewalji Trust & Ors. V/s.
State of Punjab reported in 2012 (5) SCC
432.
n. The above stated facts and the settled position
of law clearly enumerates that the Ld.
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Reference Court has awarded less
compensation than the available market value
and the Reference Court has wrongly not
considered the documents below Exhibits 146,
148 & 149.
3. ISSUE WITH REGARD TO PRODUCTION OF
ADDITIONAL EVIDENCE (ORDER 41 RULE
27, CPC)
a. It is submitted that the appellants had filed
the First Appeal before this Hon'ble Court
against the judgment and award of
Reference Court dated 05.03.2022. It is
submitted that the First Appeals filed by the
Appellants were not filed within the period
of limitation. It is submitted that the
Appellants did not file any application for
placing additional evidence on record at the
time of filing of the First Appeals. It is
submitted that later on, the Appellants
moved an application for placing certain
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documents by way of additional evidence.
The Appellants had produced the application
under Order XLI Rule 27 of the Code of Civil
Procedure, 1908 to place the additional
evidence on record. It is submitted that
application to produce additional evidence in
the first appeal may not be granted by this
Hon'ble Court as the documents sought to be
produced by the Appellants were within the
exclusive custody of the Appellants. It is
further submitted that the documents sought
to be produced by way of additional evidence
were in the knowledge of the Appellants and
it is not the case of the Appellants that they
could not find out those documents during
the pendency of Reference Case. It is
submitted that application for production of
additional evidence may not be granted by
this Hon'ble Court as the application filed by
the Appellants do not satisfy any of the
criteria established for grant of the
application.
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b. The Appellants after filing of the present
Appeal have filed two applications under the
provisions of Order 41 Rule 27 of the Code
of Civil Procedure, 1908 seeking to bring on
record additional evidence. The provision
under which the said applications has been
filed is Order 41 Rule 27(b), which states
that "(b) the Appellate Court requires any
document to be produce or any witness to be
examine to enable it to pronounce judgment,
or for any other substantial cause...." .
c. Before dealing with the documents sought to
be produced by the Appellants the law as
settled by the Hon'ble Supreme Court in
catena of decisions on the said issue is
required to be considered so that the same
can be applied while considering the
documents. The decisions that the
Respondents herein seeks to rely upon are:
i. 2012 (8) SCC 148 in the matter of
Union of India V/S Ibrahim Uddin
and Another. The relevant
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paragraphs are 36 to 52 .
ii. 2022 (7) SCC 247 in the matter of
Sanjaykumar Singh V/S State of
Jharkhand. The relevant
paragraphs are 7 and 8.
d. This is not for the first time that the
Appellants have been seeking to produce
additional documents at such a stage. Even
when First Appeal No. 969 of 1994 was
pending before this Hon'ble Court for
consideration, in the same also the State had
moved an application which was rejected.
The same was also challenged along with the
final order before the Hon'ble Supreme
Court. The Hon'ble Supreme Court while
passing the final Order dated 10.04.2006 at
Page 90 (PB) last paragraph and page 91
first two paragraphs has dealt with the same
and has found no error in the approach of
the Hon'ble High Court .
e. Without prejudice to the rights and
contentions of the Respondents-Claimants
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that the application for additional evidence
is not liable to be granted, it is submitted by
the Respondents that even after considering
the application for placing additional
evidence on record and even after granting
the said application, the final conclusion as
arrived at by the Reference Court in
determining market value of the land is in no
way going to be affected or changed in any
manner for the grounds and reasons as set
out hereinbelow. The Appellants have sought
for production of the below mentioned
documents as additional evidence:
Sr. Annex Particulars of Annex. Page
No in no. in
in Addl. PB
PB Evid.
8 A-2 Government Resolution @ 112 -
525-GH dated 18.06.1986
9 A-3 Circular bearing No. 5114 @ 114
dated 23.09.2002 - 117
3 A-4 Order dated 21.03.1994 @ 29 -
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in Special Civil Suit No.
776 of 1992.
15 A-5 Valuation report dated @ 189
30.03.2007 of the Town - 194
Planning Officer in
respect of the land in
question.
16 A-6 Minutes of meeting dated @ 195
09.04.2007 of DLPC - 196
determining the market
value of the Land in
question.
1 A-7 Order dated 29.11.1991 @ 1 -
Revenue Tribunal in
Appeal No. TEN.A.A
36/90.
10 A-8 Valuation report dated @ 118 -
planning Officer.
6 A-9 Section 4 notification in @ 95A
respect of land in - 95B
question.
17 A-10 Agreement of sale dated @ 197
20.05.1988 - 207F
18 A-11 Development agreement @ 208
dated 06.06.1992. - 217F
19 A-12 Agreement of sale dated @ 218
07.10.2000 - 235H
20 A-13 Agreement of sale dated @ 236
07.12.2019 - 243
21 A-14 Agreement of sale dated @ 244
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14.12.2019 - 250
22 A-15 Agreement of sale dated @ 251
14.12.2019 - 257
23 A-16 Agreement of sale dated @ 258
14.12.2019 - 263A
f. The Respondents-Claimants seeks to deal
with the above-stated documents in
seriatim hereunder:
i. The document produced by the Appellant
at Page 112 of the Paperbook is
Government Resolution dated
18.06.1986. It is submitted that
Government Resolution dated 18.06.1986
is in no way relevant for the purpose of
deciding the present controversy. The said
Resolution is in relation to the rate of
interest which is to be paid by the state
government in relation to taking
possession of the land for temporary
purpose by way of rent and the interest to
be paid thereon, wherein the possession is
being taken by private
arrangement/agreement/negotiation. It is
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submitted that Government Resolution
refers to the amendment in the Land
Acquisition Act, 1894 which has come into
effect from 24.09.1894. It is submitted
that the State Government by the said
Government Resolution has now fixed rate
of interest on the land to be acquired by
way of private negotiation at 9% from the
date possession is taken. It is submitted
that first paragraph of the said resolution
clearly states that it is in relation to the
acquisition of land by way of private
negotiation. It is submitted that the
aforesaid resolution has no application in
any manner to the facts of the present
case, which is taken over by invoking
urgency clause.
ii. The Appellant has heavily relied upon the
Circular dated 23.09.2002 issued by
Chief Town Planner Gujarat at
Gandhinagar. By relying upon the said
circular and in particular, two lines of last
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paragraphs, the Appellants would contend
that guidelines and principles and formula
for determining the market value of the
land as laid down in the said circular will
not apply with respect to the land which
are to be acquired. It is submitted that the
Appellants by referring to these last lines
of last paragraphs of the circular would
contend that principles governing
determination of the market value of the
land as referred to will not apply with
respect to the land to be acquired under
the Act, 1894. It is submitted that the
aforesaid contention of the state
government has been squarely dealt with
and rejected by this Hon'ble Court in the
judgment reported in 2010 (4) GLR
3589. The reference of which is made in
earlier paragraphs. It is submitted that a
State cannot have two standards of
determination of valuation of land. It is
submitted that while granting the land to
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the citizens by way of sale or lease, if the
state government is to follow the
principles and formula of determination of
market value as laid down in the circular
dated 23.09.2002, the very State cannot
be permitted to contend that it will not
apply and follow the same principles while
taking the land of the citizens by way of
compulsory acquisition under the Act,
1894. It is submitted that State and its
authorities cannot have one standard to
sell the land and another standard to
purchase the land from the citizens. It is
submitted that such approach on the part
of the state government is deprecated by
the Division Bench of this Hon'ble Court
in the judgment reported in 2010 (4) GLR
3589. It is submitted that in view of the
principle as laid down by the Hon'ble
Division Bench, the last two lines of the
circular dated 23.09.2002 which says that
the formula as referred to in the circular
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dated 23.09.2002 will not apply to the
land acquisition proceedings will no
longer survive. It is submitted that as a
necessary corollary to this, the very same
principles as are made applicable for
determining the value of the land under
the circular dated 23.09.2002 will apply to
the lands which are acquired by the State
Government under the provisions of the
Land Acquisition Act, 1894.
iii. It is submitted that that the Appellants
have placed on record the valuation
report dated 07.09.2006 (@ Page 118
PB). It is submitted that Planning and
Valuation Department Office at Vadodara
had fixed the value of City Survey no.
12/13 in Vadodara city which is a land in
proximity with the subject land. The State
Government appointed valuation
committee at Vadodara office had fixed
the price of land at Rs. 43,000/- per sq.
meter for giving it to Vadodara Municipal
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Corporation. Thus, the owner of the land
which was state government agreed to
part with the land by way of lease at Rs.
43,000/- to another local government body
namely Vadodara Municipal Corporation
for establishing traffic booth, even then,
valuation was fixed at Rs. 43,000/-. It is
submitted that the said valuation done by
the government appointed officers who
are members of valuation committee is
accepted and acted upon and the said
decision is neither changed nor set aside
so far. It is submitted that when the said
base is relied upon by the reference court
to arrive at the market value of the land at
Rs. 26,048/- , the Appellant-State
government is contending that their own
order of determining Rs. 43,000/-
valuation which acted upon and so far not
changed is not to be relied upon on the
ground that the principles and formula
relied upon while determining the
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valuation of the land is erroneous. It is
submitted that such strange argument to
the effect that the state government's own
order is not right is being argued only to
see that a citizen is denied the rightful
claim to obtain compensation of
deprivation of his property which should
be consistent with market value. It is
submitted that such submissions made by
the appellant may not be accepted by this
Hon'ble Court.
iv. The Appellants have placed on record the
proceedings of the meeting of the
valuation committee dated 30.03.2007 and
its approval by the District Valuation
Committee on 09.04.2007. These
documents are at page 189 and 195 of the
Paperbook. With respect to the aforesaid
documents, it is submitted that special
land acquisition officer addressed the
letter to the town planner of Vadodara on
22.03.2007 seeking the valuation of the
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land in question. It is stated that in view
of the letter of Special Land Acquisition
Officer dated 22.03.2007, the Town
Planning Officer-Town Planner, Vadodara
determined the price of the land at Rs.
2586/-. It is submitted that District Land
Price Committee met on 09.04.2007 and
after taking into consideration the
valuation of Town Planner further reduced
the valuation of the land in question and
fixed the value of the land at Rs. 1914/-
per sq. meter. It is submitted that Land
Acquisition Officer received this report
and had made reference of this report of
the District Valuation Committee in its
draft of the award. It is stated that the
draft of the award was sent to the
approver. The state government while
giving approval to the draft of Land
Acquisition Officer had conveyed to the
Land Acquisition Officer vide letter dated
28.07.2008 to the effect that Land
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Acquisition Officer should delete the
reference of the valuation made by the
land price committee and by the town
planner and should state in its award that
the decision regarding valuation of the
land is of the Land Acquisition Officer. It
is submitted that aforesaid details are
discernible in the a ward of the Land
Acquisition Officer dated 11.12.2008 (@
Page 96 of PB). These details are @ page
103. It is submitted that the aforesaid
sequence of events clearly shows that
what was told by t he state government to
the Land Acquisition Officer not to
disclose the proceedings of the District
Valuation Committee of determining
valuation of the land at Rs. 1914/- is now
sought to be produced on record by way of
additional evidence. It is submitted that
Hon'ble Supreme Court in the judgment
reported in 2010 (5) SCC 708 (relevant
para 82) have held that when comparable
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sale methods of valuation is available, the
valuation prepared by the expert is not to
be considered. It is submitted that in view
of the above proposition of law as laid
down by the Hon'ble Supreme Court, the
valuation prepared by the Town Planner
and further reduced by the District
Valuation Committee has no evidentiary
value in any manner. It is further
submitted that the aforesaid details show
that how in a casual manner, Land
Acquisition Officer to whom important
task of offering compensation is conferred
which is to be determined on the basis of
market value of the land. This case
reflects that how in such carefree manner,
the citizens' rights of determination of fair
market value of the land are being
determined.
V. It is submitted that in view of the
aforesaid, the documents produced at
Page 184 and 195 dated 30.02.2007 &
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09.04.2007 have no evidentiary value in
any manner.
vi. It is submitted that the appellants have
placed on record, six private agreements
entered into by the family members of the
deceased who are the Claimants or the
deceased. It is submitted that by these
agreements, some of the family members
have transferred their entitlements in
favour of other persons by agreeing to
accept particular amount of consideration.
It is submitted that these agreements by
family members of decea sed are dated
28.05.1988, 06.06.1992, 07.10.2000,
07.12.2019 and 14.12.2019 and same are
and 258 of Paperbook from Sr. Nos. 17 to
23. It is submitted that out of these six
family agreements, three agreements are
prior to the year 2000, much before the
judgment of Hon'ble High Court of Gujarat
and Hon'ble Supreme Court of India. The
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judgment of the Hon'ble Supreme Court
finally rejected the assertion of the state
government that state is the owner of the
land came to be rejected on 10.04.2006. It
is submitted that entitlement of the
Claimants prior to 2006 was under the
consideration before the Hon'ble High
Court of Gujarat and thereafter, before
the Hon'ble Supreme Court. With respect
to the agreement in the year 2019 entered
into between some family members, it is
submitted that as held by the Hon'ble
Supreme Court of India that for the
purpose of determining the market value
of the land which is acquired under the
provisions of the Land Acquisition Act,
1894, relevant date for determining
market price of the land is the date of the
notification issued under section 4 of the
Land Acquisition Act, 1894. It is stated
notification came to be issued on
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09.02.2007 and therefore, market value
for the purpose of awarding compensation
to the Claimants has to be the
transactions of a willing buyer and a
willing seller on 09.02.2007 and/or around
that time. It is submitted that for the
foregoing reasons, no reliance can be
placed upon the agreements produced by
to 23 as there is no proximate connection
of any of the agreement to the date of
section 4 notification. Furthermore the
documents of the year 2019, clearly
stipulates that as the litigations have been
on-going for long and there seems no
likely end to it soon and thereby the same
was a distress sale and thereby also no
reliance can be placed on the said
documents.
g. Looking at the above documents, it is clear
and evident that the Appellants had ample
opportunity to produce all the above
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documents before the Learned Reference
Court barring last 4 agreements which
otherwise are also not relevant. The
Appellant deemed it fit and appropriate not
to produce the same before the Ld.
Reference Court but now with an oblique
intention of getting the matter remanded
back on the basis of the fact that these
documents were not considered is wanting to
produce additional documents at this belated
stage.
h. Taking into consideration the contents of the
above documents and taking into
consideration the settled position of law as
enumerated in the decisions relied upon, the
general principle is that the Appellate Court
should not travel outside the records of the
Lower Court and in the exceptional
circumstances if the Court is wanting to
travel, the test which is required to be
considered is as to whether or not the
Appellate Court requires the said evidences
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sought to be adduced, to enable it to
pronounce judgment or for any other
substantial cause. Admittedly, looking at all
above documents as mentioned in para 6e.
and reasons given in para 6f. above, none of
the said documents can be said to be
positively falling within the test as required
to be undertaken. The documents on record
itself are sufficient for this Hon'ble court to
pronounce the judgment without taking into
consideration the additional documents
sought to be produced by the Appellants and
thereby the Civil applications filed by the
Appellants seeking for production of
additional evidence required to be dismissed
with cost.
4. ISSUE WITH REGARD TO REMAND OF
APPEALS TO THE LD. REFERENCE COURT:
a. The Appellant-State, during their arguments
had stated that in view of the production of
Additional Evidence, as the same were not
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made available with the Reference Court
while passing the impugned Judgment and
Order and thereby, the Appeals are required
to be remanded back to be decided afresh
taking into consideration the additional
evidence provided by the Appellant-State.
b. Firstly, in view of what is stated in para no.
6 hereinabove, the applications preferred by
the Appellant-State for production of
additional evidence, deserve to be dismissed.
If for any reason, it is assumed that Your
Lordships are granting the applications
preferred by the Appellant-State for
production of Additional Evidence, in that
case also, Your Lordships be pleased to
consider the fact that the complete record is
available for Your Lordships kind
consideration, furthermore, the parties have
dealt in detail with all those documents and
have made submissions with regard to the
same before Your Lordships and thereby,
Your Lordships may consider those document
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and pass the the final order and thereby
also, this is not a case of remand.
c. As far as the documents produced in
additional evidences are concerned, no
further oral evidence is required to be led
with regard to the said documents and
thereby, either Your Lordships will consider
those documents and interpret them or Your
Lordships, taking into consideration the
submission on the part of the Respondents
will disallow the applications and ignore the
said documents and thereby also, this is not
a case which deserves to be remanded back
for fresh consideration.
d. Your Lordships may also consider the plight
on the part of the Respondents whereby, the
Respondents, for more than last 6 decades,
are running from pillar to post, firstly, to
establish their ownership rights and
thereafter, to receive compensation. As the
government was claiming to be an owner of
the subject Land and thereby, in the year
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1960, the Respondents were constrained to
file proceedings under Section 37 of the
Bombay Land Revenue Code for being
declared as owners, wherein the
Respondents eventually succeeded in the
year 1991 and the said order attained
finality only in the year 2006, when the 1991
order was upheld by the Hon'ble Supreme
Court. Thereafter, once the order was
passed in favor of the Respondents by the
Hon'ble Supreme Court, the Appellant-State
by invoking urgency clause under the Act, in
the year 2007 started acquisition
proceedings wherein in the year 2008, an
award for a meagre amount of Rs. 1914 per
square meter was passed and ultimately, the
impugned Order came to be passed in the
year 2023. The Respondents from 2008 till
2023 have been waiting to get / receive
rightful compensation.
e. There has been a long-standing dispute /
litigation with respect to the said Land,
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which the Appellant-State and the
Respondents have been involved in, for more
than last 6 decades and thereby also, it is
neither in the interest of the State nor in the
interest of the Respondents for the matter to
be remanded back for fresh consideration.
f. In this regard, the Respondents herein, seek
to rely upon a decision of Hon'ble Supreme
Court in the matter of Sirajudheen v/s
Zeenath reported in 2023 (0) AIJEL-SC
70437, wherein the Respondents herein
seek to rely upon para nos. 9 and 11.2 of
the same.
g. In view of the above, this is not a case which
deserves to be remanded back.
5. CROSS-OBJECTIONS:
a. The Respondents have filed Cross Objections
in these appeals under Order XLI Rule 22 of
the Code of Civil Procedure, 1908. It is
submitted that the Claimants had demanded
an amount of Rs. 65,000/- per sq. meter
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before the Reference Court. The Reference
Court has awarded an amount of Rs. 26,048/-
to the Claimants. It is submitted that for the
remaining amount of Rs. 38,952/-, the
Claimants have filed Cross Objections. It is
submitted that the Claimants are entitled to
full amount of Rs. 65,000/- as the exemplars
of highest market value should be
considered while deciding the amount of
compensation.
b. This Hon'ble Court may consider that the
lease value of a land and sale value of a land
has a vast difference since the leased land
would remain with the original owner and
after completion of lease period, the land
can be transferred by the owner the way the
owner wants i.e. sell, lease, rent and/or
mortgage the property. Per contra, the land
once sold shall not provide any future
benefits/interest to the original owner.
Therefore, the market value of a property for
sale is higher than the market value of a
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property for lease. Hence, the original
Claimants are entitled for the enhanced
compensation @ Rs. 65,000/- per sq. meter
instead of Rs. 26,048/- per sq. meter as
granted by the learned Reference Court.
c. The Reference Court failed to consider the
oral and documentary evidences submitted
by opponent no. 1 and 3 (the objectors) in its
true spirit and sense.
d. The Reference Court has failed to appreciate
that while moving the proposal for
acquisition of the land in question to the
government Exh. 183, the commandant
categorically indicated that the possession
of the land in question is with the
government and therefore, the Reference
Court ought to have granted compensation
to the land owners from the date of
possession even prior to the date of date of
the order of the GRT i.e. prior to 29.11.1991.
e. The Reference Court ought to have
appreciated that a separate suit is not
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required to be filed for claiming
compensation in respect of possession held
by the government of the land in question
prior to notification under section 4 of the
Land Acquisition Act, 1894 as the said relief
is required to be given to the land owners in
the reference proceedings itself otherwise
the land owners will be ousted from lodging
the claim for compensation for possession
prior to the notification under section 4 of
the Land Acquisition Act, 1894 on the
premise of Order II Rule 2 of the Code of
Civil Procedure, 1908.
f. The Reference Court has failed to consider
the evidence produced at Exh. 146, Exh,
147, Exh. 148 and Exh. 149 for determining
the market value of the land in question
which unequivocally indicate that the market
value of the land in acquisition ought not to
have been fixed below Rs. 40,000/- per sq.
meter in any case.
g. The Reference Court has committed an error
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of law in taking into consideration an
instance of lease of land by Municipal
Corporation for 30 years for the purpose of
determining the market value of land in
acquisition as it is neither an instance of
sale nor the land is of private ownership as
in the present case and therefore the
Reference Court ought to have fixed the
market value of the land in question much
more higher than the market value fixed on
the basis of the transaction of lease.
h. The Reference Court has failed to appreciate
the deposition Exh. 136 of the Commandant
wherein it is specifically deposed by the
Commandant that the government is in
possession of the land in question and
therefore, the compensation ought to have
been given to the land owners from the date
of possession of the government.
i. The Reference Court has erred in law in
granting additional compensation under
section 23 (1A) of the Land Acquisition Act,
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1894 at the rate of 12% per annum from the
date of notification under section 4 of the
Land Acquisition Act, 1894 till the date of
award instead of granting additional
compensation at the rate of 12% per annum
from the date of possession till the date of
award.
j. The Reference Court has erred in law in
granting interest under Section 28 of the
Land Acquisition Act, 1894 on the excess
amount determined as compensation payable
to the land owners wrongly construing the
date of possession of the land as the date of
notification under section 4 of the Land
Acquisition Act, 1894 till the excess amount
is deposited in the court instead of granting
interest from the date of actual possession
of the land being dated prior to section 4
notification under the Land Acquisition Act,
1894 till the excess amount is deposited in
the court.
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7. Essentially, for the purposes of deciding the issue in the
appeals and the cross-objections, the appellant - State has
challenged the judgement and order of the Reference Court
broadly making submissions on two counts; one, that the
compensation granted of Rs.26,048/- per sq. mtr. is very high
and not as per the prevailing market rate. These submissions
have been sub-classified on the correctness / incorrectness of
the method of determining the valuation / market price of the
land in question. On the question of the sale transaction
relating to a smaller extent of land and the percentage of
deduction that should be provided towards development cost
including the rate at which the yearly percentage of escalation
amount that could be added. The other link as a branch of
this challenge also includes the error, in the perception of the
State in relying upon instances of valuation in the matter of
grant of leasehold rights viz. Exhs. 146 and 147 and instances
of valuation based on "auction transactions" at Exhs. 148 and
149.
7.1 In the perception of the State, the Reference Court has
wrongly awarded interest at 15% per annum from the date of
possession i.e. 29.11.1991 till Section 4 notification. As a
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branch of this submission, it is the case of the State
Government that the Act does not authorize the award of
interest / rent prior to issuance of notification under Section 4
of the Act; that in absence of any categorical finding on the
aspect of 'possession' of the subject land, the Reference Court
has committed an error as taking 29.11.1991 as the base for
the purposes of awarding interest as the subject land
continued to be in possession of the claimants till the date of
Section 4 notification.
7.2 While arguing the appeal, production of additional
evidence under Order 41 Rule 27 of the Code of Civil
Procedure was also pressed into service by the State by
producing additional evidence in form of public documents at
Annexures A2 to A9 which were indirectly referred in the
Land Reference proceedings and various agreement of sale
Annexures A10 to A16 entered into between the land owners
and third parties for the subject land to assail the reference
and the method of valuation arrived at including the question
of grant of rent / interest @ of 15% prior to the date of
notification under Section 4. These documents were pressed
into service to seek remand of the matter for a fresh
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reconsideration before the Land Reference Court.
7.3 The learned counsels for the respective parties have, as
is evident from the copious written submissions filed which
are set out herein above, would indicate that citations have
been relied upon on the points raised to support their
submissions.
7.4 Before we proceed to discuss and analyze the issues that
arise for our consideration, it will be in the fitness of things to
give a brief history of the subject land, as produced in the
paper book, which is as under:
Sr. Pg.
No. Date Particulars No. in
Paper-
Book
1. -- Subject Land:
Originally Late Shri
Mahendrakumar Purshottambhai
Desai and his forefather were
having the land bearing Survey
No.1/A/2 shown in the City Survey
Part-B, bearing Tika Nos.27/15,
27/16 and 27/17), situated near
Lalbaug Crossing, Kasba,
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Vadodara, admeasuring 1,28,073
sq.mtr., equal to approximately 53
Vighas and 17 Vasa ('the subject
land' for short), which was in the
possession of Late
Mahendrakumar Purshottambhai
Desai. The subject land is
popularly known as 'Police Parade
Ground'. The same was later
convened into Survey Nos.371 and
Note:
1 Vigha = 2378 sq. mtrs.
1 Vasa = 119 sq. mtrs.
2. 01.06.1964 Considering the dispute with
regard to the ownership of the
subject land, the Ld. Collector was
pleased to assign the inquiry of the
subject land under Section 37(2) of
the Bombay Land Revenue Code.
Note:
(i) Accordingly, a report was
submitted by the Asst. Collector
stating the ownership of the
subject land is that of the State of
Gujarat.
(ii) Pursuant thereto, the Ld.
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Collector had suo motu examined
the report and directed a fresh
report to be undertaken,
whereupon, a fresh report was
submitted on 31.11.1996
reiterating the earlier report.
(iii) The said report was carried
upto the learned Gujarat Revenue
Tribunal ('GRT', for short) by
Mahendrakumar Purshottambhai
Desai and ultimately everything
was remanded back to the Asst.
Collector for fresh consideration.
3. 07.04.1980 The Asst. Collector, Vadodara had
adjudicated the claims of the State
of Gujarat over the subject land
and was pleased to hold that the
subject land was of the ownership
of the State of Gujarat.
4. 14.051983 Shri Mahendrakumar
Purshottambhai Desai had
challenged the aforesaid order
dated 07.04.1980 before the
District Collector, Vadodara, who
was pleased to reject the appeal
filed by Shri Mahendrakumar
Purshottambhai Desai and uphold
the above order dated 07.04.1980
passed by the Asst. Collector,
Vadodara.
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5. -- Shri Mahendrakumar
Purshottambhai Desai filed an
Appeal No.TEN.AA.36 of 1990
before the GRT.
6. 18.06.1986 The State Government issued a 112
(Addl.Evide
Government Resolution bearing
nce)
No.LAQ-1084-525-GH, inter-alia,
amending the rate of rent at 9%
per annum in place of 4.5%,
towards rent for the period from
the date on which the possession of
the land has been taken, till the
payment under the provisions of
the erstwhile Land Acquisition
(Amendment) Act, 1984.
Though the grant of such rent for
the period of possession taken
prior to the issuance of a
notification under Section-4 of the
Land Acquisition Act, 1894 does
not fall within the jurisdiction of
the Ld. Reference Court; the same
has been awarded in the present
case and that too, at 15% in the
impugned Judgment and Order.
(Addl.Evide to
aforesaid dispute, an Agreement
nce) 207F
for Sale was executed by
Mahendrabhai Purshottambhai
Desai for himself and as Power of
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Attorney of his family members as
well as in the capacity of Karta of
his HUF, in favour of one
Dharmendra Jamnadas Shah at the
rate of Rs.2.90 per sq. feet i.e.
Rs.31.21 per sq.mtr. in respect of
the subject land, at the material
time.
8. 29.11.1991 The learned GRT, vide its judgment 1
(Addl.Evide
and order, allowed the aforesaid
nce)
Appeal and held that the subject
land was in possession, occupation
and ownership of the Appellant -
Shri Mahendrakumar
Purshottambhai Desai, while
setting aside the orders passed by
the Collector and Assistant
Collector, holding the said land to
be of the State Government.
(Addl.Evide to
Purshottambhai Desai for himself
nce) 217F
and as Power of Attorney holder of
his family members as well as
Karta of his HUF, executed a
Development Agreement in favour
of (i) Bholabhai Ramjibhai Patel
and (ii) Kantibhai Premjibhai Patel,
for developing the subject land at
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the rate of Rs.20 per sq.mtr.
10. 15.08.1992 Appellant State filed a Writ
Petition being SCA No.6428 of
1992, inter-alia, challenging the
above-referred judgment and order
dated 29.11.1991 of the learned
GRT passed in Appeal No.36/1990.
11. 27.11.1992 In addition to the above, the 20
Appellant State being aggrieved by
the above referred judgment and
order dated 29.11.1991, also filed
Special Civil Suit No.776/1992
before the 3rd Joint Civil Judge
(S.D.), Vadodara. By virtue of the
said Suit, the State Government
prayed for following reliefs:
(a) to declare the judgment and
order dated 29.11.1991
passed by the Gujarat
Revenue Tribunal in Appeal
No.36/90 was bad in law,
illegal and without
jurisdiction and not binding
to the appellant-plaintiff and,
therefore, the same may be
quashed;
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(b) to declare that the suit
property described in para 1
of the plaint be of the
ownership of the State
Government and it was in
occupation and user of the
State Government; and
(c) to declare that the
defendants and their
associate persons,
contractors or developers
have no right, title or interest
or authority to enter into suit
land and further to issue
permanent injunction
restraining them from
carrying on any further
construction activity on the
suit land and passed such
order or orders as may be
deemed fit by the court.
12. 17.04.1993 This Hon'ble Court rejected the
above-referrred writ petition being
SCA No.6428 of 1992 filed by the
Appellant State, on the ground of
the Appellant State having filed the
Special Civil Suit referred to above
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for the same cause, with a
direction for expeditious hearing of
the said Special Civil Suit No.776
of 1992 of the State.
13. 21.03.1994 The Ld. 3rd Joint Civil Judge (S.D.), 29
(Addl.Evide
Vadodara, vide its judgment and
nce)
decree, dismissed the aforesaid
Special Civil Suit No.776 of 1992,
filed by the State Government,
while holding that the State
Government had failed to prove
that it had the possession of the
suit land, either on the basis of
ownership or on the basis of
physical possession. This was done
by the learned Trial Court after
having taking into consideration,
evidence on record including oral
as well as documentary evidence
viz. Panchnama dated 06.09.1992
(Exh.134), and Deposition dated
15.01.1994 of Commandant
General Mr. Malharrao Balvantrao
Sonavane (Exh.136).
14. 12.05.1994 Being aggrieved by the aforesaid
judgment and decree dated
21.03.1994, the State Government
preferred First Appeal
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No.969/1994 before this Hon'ble
Court.
15. 31.10.1995 The above-named Shri
Mahendrakumar Purshottambhai
Desai passed away.
16. 07.10.2000 Agreement for sale was executed 218
(Addl.Evide to
by the daughters of
nce) 235H
Mahendrakumar Purshottambhai
Desai in favour of one Shri
Champalal Javantraj Sheth,
agreeing to sell their 50% share in
the subject land for total sale
consideration of Rs.1,70,000/-,
which may give rise to the rate of
Rs.265.47 per sq.mtr.
17. 07.05.2002 This Hon'ble Court vide its CAV 76
Judgment, confirmed the judgment
and decree dated 21.03.1994
passed by the learned 3rd Joint Civil
Judge (S.D.), while dismissing the
above-referred First Appeal of the
State Government, and granting
status-quo for three months as
regards the suit land.
18. 08.08.2002 The State Government preferred
SLP No. (Civil) No. 16273-16275 of
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2002 which was later numbered as
Civil Appeal No.7898-7900 of 2002
before the Hon'ble Supreme Court
of India, challenging the aforesaid
CAV Judgment dated 07.05.2002 of
this Hon'ble Court.
19. 23.09.2002 The State Government issued a 114
(Addl.Evide
Circular No.5114, laying down the
nce)
procedure and principles for
determining the land valuation. As
per the said Circular, after
collecting the sale deeds of last
five years made in respect of the
lands situated within the vicinity of
1.5 to 2 kms., sale prices thereof
should be taken into account by
doubling the same in case of
developed areas and in case of
other areas, it would be made 1 ½
times. Furthermore, it also came to
be provided that there should be
an yearly escalation of 15% for the
developed areas and 10% for the
other areas.
Note:
(i) The aforesaid Government
Circular categorically provides that
the provision for doubling or
making 1½ times, the basic price, 117
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would not apply for determining
the valuation under the land
acquisition proceedings and the
yearly escalation would be
restricted to 10% for such lands.
(ii) The said Circular is in
operation even as on today.
20. 10.04.2006 The Hon'ble Supreme Court, vide 89
its Judgment, partly allowed the
aforesaid Appeal in favour of the
State Government to the extent of
2 Vighas 5 Vasas of land of new
Survey Nos.398/1 and 398/2 (given
in lieu of old Survey Nos.371 and
372) out of total 1,28,073 sq. mtrs.
of the subject land, leaving the
remainder land admeasuring
1,22,718 sq. mtrs. to be in the
ownership and possession of the
Respondents, while confirming the
findings recorded by the Ld. Trial
Court as well as by this Hon'ble
Court, being based on evidence on
record.
21. 07.09.2006 Valuation Report was prepared by 118
(Addl.Evide
Town Planner, Vadodara,
nce)
determining the market value of
land of City Survey Nos. 12 and 13,
admeasuring 6125.64 sq. mtrs at
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the rate of Rs. 43,000/- per sq.
mtrs. and the same was submitted
granting the same on lease basis
for 30 years.
The aforesaid exercise was done
after having taken into
consideration the sale deed dated
25.01.2005, as referred to at
Sr.No. 8 in a table contained in a
statement attached to the said
Valuation Report, with respect to
the rate of market value of nearby
admeasuring 1992.29 sq. mtrs.
being at Rs. 10,038 per sq. mtr. as
on 25.01.2005 and doubling the
same as per the aforesaid Circular
dated 23.09.2002, and then,
calculating 15% yearly escalation,
for reaching the figure of
Rs.25,004.98 per sq. mtrs. To this
amount, there was further addition
of 25% for the said land of City
Survey Nos.12 and 13 being on the
main road, 25% towards frontage
and 10% for location advantage,
giving rise to the figure of Rs.
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43,000 per sq. mtrs.
22. 13.09.2006 The Minutes of Meeting of the 129
@
District Land Valuation Committee
(DLVC) headed by the District (Exh.1
47)
Collector, were prepared, as per
which, the market value of land of
City Survey Nos.12 and 13,
admeasuring about 6125.64
sq.mtrs. located at station area
was fixed at Rs.40,000 per sq.mtr.,
for the purpose of granting lease
thereof in favour of Municipal
Corporation. This was done after
having taken into account the
aforesaid Valuation Report dated
07.09.2006 of the Town Planning
Officer, prepared on the basis of
the above referred Government
Circular dated 23.09.2002, except
for the addition of 10% for location
advantage.
23. 25.01.2007 State Government issued a 95-A
&
Notification in a daily newspaper
09.02.2007
(Addl.Evide under Section 4(1) of the Land
nce)
Acquisition Act, 1894 ('the said
Act' for short), notifying that the
subject land, bearing City Survey
No.1/A/2 admeasuring about
1,22,718 sq.mtrs. situated near
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Lalbaug Crossing, Vadodara is
required for Police Training
School. The said notification was
notified in the Government offices
on 09.02.2007, and the same has
been considered for the purpose of
the Award.
24. 22.03.2007 The State Government issued a
Notification under Section 6 of the
Act inter-alia, declaring that the
subject land is required for public
purpose.
(Addl.Evide
submitted by Town Planner, Town
nce)
Planning & Valuation Department,
Vadodara, determining the price of
the subject land at Rs.2586/- per
sq.mtr., after having taken into
consideration the description / 193
situation of the subject land
admeasuring 1,22,718 sq.mtrs.
including its low lying position and
frontage as well as 14 different
sale deeds as per the statement
attached therewith.
26. 09.04.2007 District Land Price Committee 195
(Addl.Evide
("DLPC" for short) held its meeting
nce)
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and drew minutes thereof,
determining the price of the
subject land as per SOR, at
Rs.1914 per sq.mtr., after reducing
the price of Rs.2586 per sq.mtr.
determined in the aforesaid
Valuation Report dated
30.03.2007; in view of the subject
land - (i) being in the shape of a
strip of land, (ii) having more
depth rather than the frontage, (iii)
lying low to the extent of 1.22
cubic mtr. from the surface of the
main road, and (iv) requiring filling
up, entailing expenses for the
same.
27. 11.12.2008 An award under Section 11 of the 96
said Act came to be made,
awarding an amount to the tune of
Rs.33,33,15,552/- calculated at the
rate of Rs.1914/- per sq.mtr. to the
land owners.
28. 20.02.2009 Land owners filed Land Reference
Case Nos.35, 37 and 55 of 2009
under Section 18 of the said Act,
interalia, praying for:
(a) To quash the price
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determined at the rate of
Rs.1914 per sq.mtr. and
declare it to be Rs.65000/-
per sq.mtr.
(b) To declare 30% solatium on
the compensation amount,
and
(c) 12% increment.
(d) Over and above the aforesaid
amount, to declare 9%
interest from the date of
possession upto 1 year and
thereafter 15% interest till
the amount of compensation
is disbursed.
29. 07.12.2019 Agreement for sale was executed 236
(Addl.Evide to
by the heirs of Mamtaben w/o
Dilipbhai Upadhyay (daughter of
Mahendra Purshottambhai Desai),
assigning their 1/7th right in the
subject land for receiving further
compensation and other benefits
pursuant to the land acquisition
proceedings w.r.t. the land in
question in favour of (i) Amarbhai
Ramanbhai Patel i.e. Respondent
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No.4 in the captioned appeal and
(ii) Sushilaben Rajendrakumar
Barot i.e. Respondent No.5 in the
captioned appal for total
consideration of Rs.20 crores,
which would give rise to the rate of
Rs.11,408/- per sq. mtr.
30. 14.12.2019 Agreement for sale was executed 244
(Addl.Evide to
by the daughter of the above
named Mahendra Purshottambhai
Desai, i.e. Samtaben w/o
Kaushikbhai Bhalchandra,
assigning her 1/7th right in the
subject land for receiving further
compensation and other benefits
pursuant to land acquisition
proceedings w.r.t. the subject land
in favour of (i) Amarbhai
Ramanbhai Patel i.e. Respondnet
No.4 in the captioned appeal and
(ii) Sushiolaben Rajendrakumar
Barot i.e. Respondent No.5 in the
captioned apepal for total
consideration of Rs.20 crore, which
would give rise to the rate of
Rs.11,408/- per sq.mtr.
31. 14.12.2019 Agreement for sale was executed 251
(Addl.Evide to
by the daughter of Mahendra
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w/o Umeshbhai Gunwantbhai,
assigning her 1/7th right in the
subject land for receiving further
compensation and other benefits
pursuant to land acquisition
proceedings w.r.t. the subject land
in favour of (i) Amarbhai
Ramanbhai Patel i.e. Respondent
No.4 in the captioned appeal and
(ii) Sushilaben Rajendrakumar
Barot i.e. Respondent No.5 in the
captioned appeal for total
consideration of Rs.20 crores,
which would give rise to the rate of
Rs.11,408/- per sq. mtr.
32. 14.12.2019 Agreement for sale was executed 258
(Addl.Evide to
by the son of Mahendra
nce) 263-A
Purshottambhai Desai i.e. Alark
Mahendrabhai Desai in favour of
(i) Amarbhai Ramanbhai Patel i.e.
Respondent No.4 in the captioned
appeal and (ii) Sushilaben
Rajendrakumar Barot i.e.
Respondent No.5 in the captioned
appeal, agreeing to assign his 1/7 th
right / share in the subject land for
total consideration of Rs.55 crores,
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which may give rise to the rate of
Rs.31,373/- per sq. mtr.
33. 05.03.2022 Learned Reference Court at 1
(FA)
Vadodara, rendered its Judgment,
raising the rate of compensation
from Rs. 1914/- per sq.mtr. as
provided under the Award dated
11.12.2008, to Rs.26,048.00/- per
sq.mtr., with respect to the subject
land, admeasuring 1,22,718
sq.mtrs. This was done, after
taking into account the aforesaid
minutes of the meeting dated
13.09.2006 of the District
Valuation Committee (Sr.No.22
above), inter-alia, deciding the
valuation of City Survey Nos.12
and 13 Paiki, admeasuring about
6125.64 sq.mtrs. situated at
station area at Vadodara (Kasba),
by applying the rate of market
value of another nearby land of
City Survey No. 139, admeasuring
about 1992.29 sq. mtrs., and
ultimately directed the State
Authorities to grant the following
amounts to the claimant:
(i) Rs.296,16,76,212.00 by way
of additional (i.e. excess)
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compensation at the rate of
Rs.24,134/- per sq.mtrs. (i.e.
Rs.26,048.00 - Rs.1914.00
per sq.mtr.), under Section
23(1) of the Act.
Note: The Ld. Reference
Court calculated the
aforesaid amount with 76-77
respect to the subject land, (FA)
by applying the base rate of
Rs.25004.98 per sq.mtr.
applicable to the nearby land
of City Survey Nos.12 and 13,
admeasuring 6125.64
sq.mtr., as determined by
DLVC in its meeting held on
13.09.2006, while further
adding thereto, an escalation
amount @ 10% for 5 months
(i.e. from 13.09.2006 to
09.02.2007) being to the tune
of Rs.1043 per sq.mtr.,
totalling to Rs.26,048 per
sq.mtr (i.e. Rs.25,004.98 per
sq.mtr. plus Rs.1043 per
sq.mtr.).
(ii) Rs.65,15,68,766.64 by way of
interest at the rate of 12%
p.a. on additional
compensation under Section
23(1A) of the Act from
09.02.2007 i.e. date of
Section 4 Notification to
11.12.2008 i.e. Date of
Award.
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(iii) Rs.88,85,02,863.60 by way of
solatium of 30% on the
amount of additional
compensation under Section
23(2) of the Act on the above
referred market value of the
land in question.
(iv) Rs.729,20,94,260.00 by way
of interest / rent at the rate of
15% from 29.11.1991 i.e. the
date on which the State
Authority was alleged to have
come into possession of the
land in question to
09.02.2007 i.e the date of
Section 4 Notification, i.e.
for the period anterior to
Section 4 Notification.
__________________
Rs.1179,38,42,102.65
(v) Rs.26,65,50,859.00, by way
of interest @ 9% p.a. on the
additional compensation for
the period of one year from
09.02.2007 i.e. date of
Section 4 Notification, under
Section 28 of the Act.
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(vi) Rs.666,37,71,477.00, by way
of interest @ 15% p.a. on the
amount of additional
compensation from
10.02.2008 till date i.e.
17.02.2023, under the
proviso to Section 28 of the
Act.
__________________
Rs.1872,41,64,438.73
__________________
34. 11.11.2022 Appellant - State Government filed
the captioned appeals.
35. 06.04.2023 This Hon'ble Court passed an
order and admitted the captioned
appeals.
7.5 Before we proceed to appreciate the judgement and
award of the Reference Court, it shall be worthwhile to
reproduce hereinbelow the translated version of the relevant
paragraphs of the award. The same read as under:
"(19) The judgements of Hon'ble Supreme Court
and Hon'ble High Court produced on behalf of the
applicants were perused. The principle established
in the judgements was perused. As discussed
above, it is also admitted on behalf of the
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respondents that the acquired land is situated in
the prime location of Vadodara.The award under
section 11 for acquisition of the aforesaid land was
passed on 11/12/2008, wherein compensation was
ordered to be paid at the rate of Rs. 1914/- per sq.
m. for the aforesaid land.
The applicant has stated in his application
and in the affidavit at Exh. No. 130 that as per the
Jantri of the land, rate of the jantri of Rs. 6300/- per
sq.m. has been applied to the the land in suit. As
the order was passed against the Government,
Superintendent of Land Records cum Consolidation
Officer, Vadodara, has given opinion to approach
Supreme Court against the judgement of Hon'ble
High Court of Gujarat vide his letter no.
C.T.S./Vashi/1434/2002 dated 28/05/2002
addressed to District Collector and stated that the
land in suit is situated in the middle of Vadodara
and its price is approximately 200 crore rupees. In
view of the documents produced on behalf of the
applicants and the award under the section 11, it is
stated that jantri rate is Rs. 6300/- per sq.m. The
Land Acquisition Officer has stated in his opinion
that, "In view of different evidences produced by
the land owner and potentiality of the land under
the acquisition, market price of the land under
acquisition is Rs. 20790/- (Rupees Twenty
Thousand Seven Hundred Ninety only)."
"Under these circumstances, in my opinion,
market price of the acquired land can be
considered to be Rs. 10,000/- per sq.m." In view of
the aforesaid fact and documents produced on
behalf of the applicant, compensation paid to the
applicants at the rate of Rs. 1914/- per sq.m. can be
considered to be less.
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(20) If the documents relied upon by the
applicants for the enhancement of the
compensation for the acquired land are taken into
account, sale/lease deeds adduced vide Exh. No.
146 to 149 have been relied upon. The applicant
states in the examination-in-chief that the land
acquired as per compensation case no. 18/2006 is
situated in Kasba area of Vadodara. The Deputy
Town Planner assessed the prevailing market price
of the land bearing Vadodara Kasba Revenue
Survey Nos. 553, 554 paiki, admeasuring 21414,
4038 sq.m. (Land C) situated near the aforesaid
acquired land on 17/04/2000. In this regard,
meeting of the Land Price Committee was
convened under the Chairmanship of the Collector,
Vadodara, on 17/04/2000. The meeting of the Land
Price Committee consisting of (1) Collector,
Vadodara - Chairman, (2) District Development
Officer, Vadodara- Member, (3) Deputy Town
Planner, Vadodara - Member, (4) Resident Deputy
Collector, Vadodara - Member, and (5) Deputy
Collector, Land Reforms, Vadodara, was convened
on 17/04/2000 and market price of Rs. 28000/- per
sq.m. was unanimously fixed for the Kasba,
Vadodara. The minutes of meeting of the Land
Price Committee dated 17/04/2000 was recorded.
The copy of aforesaid minutes of the meeting is
produced vide Exh. No. 146. The market price of
the land prevailing on 17/04/2000 mentioned at sr.
no. 17 above Vadodara Kasba in the aforesaid
minutes was fixed. The applicant has relied upon
the aforesaid evidence for obtaining compensation
of the acquired land. The land mentioned above
Vadodara Kasba of which price was fixed by Land
Price Committee and the acquired land of the
applicant are situated at Kasba, Vadodara. The
distance between aforesaid lands is 2 kilometers.
Both lands can be used for non-agricultural
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purpose. But, the difference between them is that
the acquired land of the applicant is situated on
Rajmahel Road in the middle of Vadodara and in
the developed area, whereas the aforesaid land of
which price was assessed by Land Price Committee
is situated in the under developed area. Despite
that, Land Price Committee fixed market price of
Rs. 28,000/- per sq.m. prevailing as on 17/04/2000
in view of continuous increase in the demand of the
land due to relentless development of Vadodara
city. The land of the applicant acquired in
accordance with compensation case no. 18/2006
was acquired vide notification dated 09/02/2007
under section 4. Therefore, there is a gap of 6
years, 9 months and 24 days between 17/04/2000
and 09/02/2007. As per guidelines laid down by
Hon'ble Supreme Court and Hon'ble Gujarat High
Court regarding annual price increase in the
market price, for the period between aforesaid
dates, considering annual 35% price increase in
the developed cities i.e. in the urban area, the
applicant can fetch more market price of the
acquired land than as demanded in his application.
If the document at Exh. No. 146 is taken into
account, it is regarding the meeting of Land Price
Committee convened on 10/04/2000. If sr. no. 17 in
the minutes of meeting is taken into account, it is
regarding agenda no. 21 (Hotel Welcome) bearing
paiki, admeasuring 21414, 4038 sq.m. land (Land
C). In this case, Deputy Town Planner has assessed
price of Rs. 27,600/- per sq.m. The Land Price
Committee unanimously fixed price at the rate of
Rs. 28,000/- (Rupees Twenty Eight Thousand Only)
per sq.m. As total price is more than 50 lakh
rupees, the price shall have to be fixed after
placing the same before the Land Price Committee
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of the State Government. In view of the same,
minutes of the meeting of the Land Price
Committee of the State Government has not been
produced. Under these circumstances, it does not
become clear as to whether the same is approved
by the Committee of the State Government or not.
Therefore, present document cannot be taken into
account for fixing market price of the acquired
land.
The applicant has further stated in the
examination-in-chief that Vadodara Mahanagar
Palika advertised in the daily newspaper for leasing
the land, admeasuring 2200.00 sq.m., out of
3200.00 sq.m., bearing Vibhag 4, Vasana, T.P.
Scheme No. 15, Final Plot No. 166, belonging to
Vadodara Municipal Corporation, for 99 years, and
accordingly, its auction was conducted on
08/02/2007. In the aforesaid auction, the highest
bid was Rs. 40,200/- per sq.m. and highest bidder
was Avenue Super Mart Pvt. Ltd. Therefore,
Vadodara Municipal Corporation decided to lease
the aforesaid land for 99 years. The aforesaid
company paid Rs. 8,84,40,000/- (Rupees Eight
Crore Eighty Four Lakh Forty Thousand) towards
the amount of the premium at the rate of Rs.
40,200/- per sq.m. for the land admeasuring
2200.00 sq.m. Therefore, Vadodara Municipal
Corporation executed lease deed no. 4527 on
24/05/2007 in favour of Prakash Pachisiya, residing
at Mumbai, on behalf of Avenue Super Mart Pvt.
Ltd., for 99 years. The aforesaid deed was
registered in the office of Sub-Registrar, Vadodara,
Gorva. The certified copy of the same is produced
vide Exh. No. 148. The transaction of lease deed
for 99 years is bonafide and genuine. The
transaction of having leased out for 99 years has
taken place in the auction on 08/02/2007.
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However, the land in question in Land
Acquisition Case No. 18/2006 has been acquired
vide the notification dated 09/02/2007 under
Section 4 of the Act. Thus, the aforesaid
transaction of leasing and the Notification under
Section 4 pertain to the same time period. The land
under acquisition is situated in the central part of
Vadodara city and in the most developed area of
the city. Whereas, the land stated in the aforesaid
Lease Deed as being conveyed on 99 year lease
basis is situated in Vasna area. It is located in close
proximity of their land and it is located in an under-
developed area. Had the stated land been sold
through a public auction, Vadodara Municipal
Corporation could have fetched a price higher by
one and half to two times than the rate of
Rs.40,000/- per square meter. The construction and
commercial potentiality of the land under
acquisition is much higher than the aforesaid land.
Therefore, in their Land Acquisition Applications,
the applicants have demanded compensations at
the rate of Rs.65,000/- per square meter, which
should be rendered to them along with all the
benefits entitled under the Land Acquisition Act.
During the Examination-in-Chief, the
applicants have further stated that, the land out of
Final Plot No. 549/1 was situated in T.P. Scheme -1
of Akota Part-3 under the Vadodara Municipal
Corporation. The Vadodara Municipal Corporation
had published an advertisement in the newspaper
for conveying the land measuring 5556.00 square
meter out of the stated final plot on 99 year lease
basis. The auction took place on 09/02/2007,
wherein a company, named M/s. Avenue Super
Mart Pvt. Ltd., participated and bid the price of
Rs.45,500/- per square meter for a lease of 99
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years, which came to be sanctioned by the
Vadodara Municipal Corporation. Pursuant to that,
the aforesaid company had rendered the amount of
premium, i.e. Rs.25,27,98,000/- (Rupees twenty five
crore twenty seven lakh ninety eight thousand), in
full. The stated transaction took place on
08/02/2007. It is a bonafide and genuine
transaction. The transaction dates to the period of
the impugned Notification under Section 4. On
receiving the above mentioned premium amount,
the Vadodara Municipal Corporation executed a
Lease Deed for a period of 99 years in favor of M/s.
Super Mart Pvt. Ltd. through Prakash Pachisiya,
residing at Mumbai, which has been registered
before the Sub Registrar, Akota, Vadodara -3 at
Sr.No. 4903 and a copy thereof is produced at
Exhibit 149. Akota area is located at a distance of
about one kilometer from the land under
acquisition. The type of the land stated in the
aforesaid Lease Deed and the land under
acquisition is same. But, geographically and
considering potentiality of construction, their land
is situated in the middle of Vadodara city and is
located in the most developed area of the city.
Whereas the land stated in the aforesaid Lease
Deed is situated in an under-developed area.
Therefore, the market-price of their land under
acquisition is two times more than the stated land.
Had the stated land been conveyed through a
Public Auction, Vadodara Municipal Corporation
was likely to fetch a price much higher than
Rs.45,000/- per square meter. Therefore, in their
Land Acquisition Reference, the applicants had
demanded compensation at the rate of Rs.65,000/-
per square meter, which is just and reasonable and
the same should be rendered to them with all the
benefits entitled under the Land Acquisition Act.
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(21) Among the documents relied on by the
applicants, one is the Lease Deed executed by
Vadodara Municipal Corporation for conveying the
land, through the Public Auction dated 08/02/2007,
on a lease of 99 years and having area of 3200
square meter out of the Final Plot No. 166 in T.P.
Scheme No.15, in favor of M/s. Avenue Super Mart
Pvt. Ltd. which is registered with the Office of Sub
Registrar, Vadodara, Gorva Branch on 24/05/2007
and produced in the case at Exhibit 148. The other
document relied on is the Lease Deed executed by
Vadodara Municipal Corporation for conveying the
land, through the Public Auction dated 09/02/2007,
on a lease of 99 years and having area of 5556
square meter out of the Final Plot No. 548/1 in T.P.
Scheme No.1, in favor of M/s. Avenue Super Mart
Pvt. Ltd. which is registered with the Office of Sub
Registrar, Vadodara, on 24/05/2007 and produced
in the case at Exhibit 149. The documentary
evidences have been produced. Learned Advocate
for the applicants has submitted that, as the
present documents are related to the period when
the Notification under Section 4 came to be
published, it has been urged to calculate the
Market-Price accordingly.
(22) Both the above mentioned documents are the
deeds executed by the municipal corporation in
favor of M/s. Avenue Super Mart. The subject lands
of the deeds are situated in Akota and Vasna,
respectively, whereas the acquired land belongs to
Kasba area. Thus, the lands of the produced
documents and the land under acquisition belong
to different areas. Both the lands, i.e. that of
Exhibit 148 and 149, are the final plots of T.P.
Schemes. Though the acquired land is used for
non-agriculture purpose for many years, it is an
uninterrupted strip of 53 Veegha and 18 Vasa, i.e.
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a single unit having measuring 122718 square
meter. It is a huge parcel of land. Perusing the
award under Section-11, the whole or most of the
part of the acquired land cannot be considered as
'situated on a main road'. A Final Plot in a T.P.
Scheme is a plot finalized after deduction for
easement, roads etc. Therefore, it cannot be
equated with the acquired land. Moreover, the land
under acquisition and the land conveyed by the
municipal corporation on lease basis are situated in
different areas. Considering all these facts, these
documents cannot be helpful in determining the
market price of acquired land.
(23) In the affidavit of the evidence at Exhibit 147,
the applicants have, relying on the Entry No.20
dated 13/09/2006, submitted before the District
Land Valuation Committee that, the case of
acquisition of the land measuring 6125.64 sq.mtr.
at Taluka and District Vadodara City, Mauje
Vadodara (Kasba) City Survey No. 12 and 13 and
situated adjoining the lands of the applicant, was
referred to the District Committee for determining
the Market Price as the land was to be acquired by
the municipal corporation, on a lease of 30 years,
for the purpose traffic management. In the
committee meeting, i.e. meeting of the District
Land Valuation Committee, dated 13/09/2006, the
Market Price was determined, unanimously, at
Rs.40,000/- per square meter. The lands of the
stated City Survey no. 12 and 13 and the land in
question are located in a close proximity and
prospect and potentiality of development for both
the parcels of lands are equal. The minutes of the
District Valuation Committee dated 13/09/2006 is
produced at Exhibit 147. Perusing Entry No.20 of
the minutes of meeting dated 13/09/2006, it
emerges that;
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For determining current Market Price of
the land admeasuring 6125.64 square
meter out of Taluka and District
Vadodara, Mauje Vadodara Kasba City
Survey No. 12 and 13 to be acquired on
30 years' lease basis for the purpose of
traffic management.
(a) In the case on hand, the following facts
have been discussed in detail.
Sr. Panch Average Jantri Rate Rate
Kyas Sell determined
Price by the Town
Planner
1 - - Rs.5300/- Rs.43000/-
per sq.mtr. per sq. mtr.
Date:
07/09/2006
A copy of Panch-Kyas is not received
along with the case papers.
Generally, Jantri Rates reflect a price
lower than the price actually prevailing.
Price Evaluation:
Sr. Description of Sell Price Remark
Rs. per Sq.
Mtr.
1 Sell price of the 25004.98 Sell
considered sell Transaction
transaction no.8
2 Increase in the 25004.98 25% increase
sell price to be + 6251.25 entitled to the
appropriated ---------------- land for its
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31256.22 location of
cross road
frontage
31256.22 25% increase
+ 7814.06 entitled to the
---------------- land under
39070.28 evaluation for
its
advantageous
location
3 Any decrease in ---------------
the likely sell
price
4 Price arriving 39070.28 Rs. per Sq.
after increase - Mtr.
decrease
5 Price determined Rs. 40000/- Per Square
unanimously Meter
(c) The current Market Price of the
land, to be acquired on 30 years' lease
basis for the purpose of traffic
management, measuring 6125.64 square
meter out of Taluka and District
Vadodara, Mauje Vadodara Kasba City
Survey No. 12 and 13 is determined at
Rs.40,000/- (Rupees fourty thousand)
per square meter.
Considering the facts, the price has been
determined on the basis of the Sale Deed. In the
Sale Deed, the selling price is shown as
Rs.25,004.98 square meter, wherein an increase of
25%, i.e. Rs.6,251.24 per sq. mtr. has been shown
as entitlement for its wide frontage to the cross
roads and 25% increase, i.e. Rs.7814.06 per square
meter, has been shown as entitlement for its
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advantageous location and thus, arrived at the
market price of Rs.39070.28 per square meter.
Thereafter, Rs.40,0000/- per square meter has
been determined as the Market Price, unanimously.
The stated land and the land under present
acquisition belong to one area, i.e. Kasba of
Vadodara city. These facts have been admitted by
the Respondents in their cross-examination. But,
upon considering a copy of the award under section
11 with respect to the land acquired, it has been
considered that the entry gate is situated on the
main road, but it is recorded that the depth of the
land is about three to four times with respect to its
width. Whereas, the land of the deed which is
relied upon has a wide frontage of cross roads and
therefore, twenty five percent surplus has been
given. The area of the land of the deed produced is
6125.64 Sq.M., whereas, total area of the land
acquired is 122718 Sq.M. (53 Bigha 18 Vasa).
Considering the said facts, while determining a
market value of the land bearing such a large area,
valuation of the whole area cannot be done on the
same scale. Therefore, in the valuation of the land
shown in the deed produced, surplus of twenty five
percent for the wide frontage of cross roads and
twenty five percent for location advantage has been
added and it appears appropriate to consider the
selling price as Rs.25,004.98 per Sq.M. by
determining the market value of the land acquired.
Thus, it appears appropriate to consider the
original selling price of Rs.25,004.98 as mentioned
in Entry No.20 of the District Land Valuation
Committee shown in the Exhibit-147.
(24) The minutes of the District Land Valuation
Committee is dated 13/09/2006. Whereas, the
notification under section 4 with respect to the
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disputed land acquired vide Acquisition
Compensation Case No.18/2006 has been
published on 09/02/2007. The difference between
the above two is of about 4 months 26 days. As per
the numerous decisions of the High Court, price
rise at the rate of ten percent per annum can be
applied while determining market price of the land.
In view of the same, considering the price rise at
the rate of 4.17 percent for the period of five
months, adding the amount of Rs.1043 per Sq.M. in
Rs.25,004.98 per Sq.M., the market price of the
land can be considered Rs.26048 per Sq.M. and
accordingly, as the applicants are entitled to get
the compensation for the land, the decision of Point
No.1 is in affirmative.
(25) The applicants state that, they are entitled to
get the compensation with effect from the time of
possession of the land and that, the respondents
have been in possession of the said acquired land
for many years and they are entitled to claim
interest on the amount of the compensation with
effect from that time. Whereas, the respondents
have refused the fact that the Government /
respondents had possession of the land earlier. The
applicants have produced copies of the documents
pertaining to the earlier Court proceedings as a
documentary evidence to state that the
Government had already been in possession of the
land. In the cross-examination of Shri Anil
Jesangbhai Patel conducted under the affidavit of
his evidence vide Exhibit-189, he has accepted the
fact that, upon examining a certified copy of the
panchnama of Exhibit-134, he states that, a
panchnama has been drawn for the facts that, the
Government has the possession and there are wire
fencing, various large grounds and a construction
erected on it. Upon examining a copy of Special
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Suit No.776/1992 produced vide Exhibit-135, he
states that, the said suit was filed by the
Government against Mahendrakumar and his heirs.
He states it to be true that, it has been recorded in
the suit that, the land bearing City Survey No.1/Kh/
2, Tika No.27/15, 27/16, 27/17, Part-B of city
survey map of Vadodara City, admeasuring 128073
Sq.M., i.e. about 53 Bigha 17 Vasa is a subject-
matter of this suit and the said property is owned
and occupied by the Government. As per the
original draft dated 1912 of Hajimali mentioned in
paragraph-B, the said land was registered in the
name of Tharav Police Chowki etc. of Government
Regiment in the Government records and the whole
land had never been owned or occupied by the
respondent No.1. As the said land was owned and
occupied by the Government, it was used for
Fatesingh Regiment. It has been stated in the
plaint that, the said land was registered in the
name of and occupied by the Government. Further,
in the old survey numbers of these lands, Exhibit-
137 is panipatrak and copy of the panipatrak is
from 1901 to 1903. Column 4 in it shows the name
of owner as Desai Sureshbhai Narbheram and
column 5 shows Fatesingh Regiment against the
name and caste of agriculturist. He has stated it to
be true that, the deposition given in Special Suit
No.776/1992 produced vide Exhibit-136 is of
Malharrao Balwantray Sonvane, Retired
Commander, State Reserve Police Force, Vadodara.
In his examination-in-chief, he has stated that the
acquired land in question have been occupied since
01/05/1940. He has stated it to be true that, the
Government had filed an appeal in the Supreme
Court challenging the order of the Gujarat High
Court and in the said appeal, the Government
submitted an affidavit and in the said SLP
No.16273/2002 and 16275/2002, the Government
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stated that, "the market price of the land in
question is more than Rs.200 crore and it is
occupied by the Government for Police Training
School." By instituting a suit vide Special Suit
No.776/1992 in the Vadodara Court, it has been
stated that the said acquired land has been owned
and occupied by the Government for a period of
more than 100 years. It is true that, upon being
shown Exhibit-150, I state that, the
Superintendent, Land Records cum Consolidation
Officer, Vadodara sent a letter vide letter No. CTS /
Vashi / 1434 / 2002 dated 28/05/2002 to the
District Collector, Vadodara stating that, the land
in question from the times of Vaodara State was
used and occupied by Fatesingh Regiment and the
same is presently occupied by S.R.P. Group No.1.
In the fax message received from the Assistant
Government Pleader, it is stated that the land in
question has been occupied by the Government for
70 years. Further, considering a copy of the
panipatrak of Exhibit-137, it is stated that the land
is occupied by Fatesingh Regiment. Considering all
the facts, it can be believed that the said acquired
land is occupied by the respondents from the
earlier times. The applicants in their affidavit of
evidence have stated that the acquired land has
been occupied by the Government since 1895 and
sought a compensation from that time. On the basis
of the above mentioned evidence, it can be believed
that the acquired land has been occupied by the
respondents for many years, but exact period of
occupancy by the respondents has not come on
record.
(26) The acquired land was sought on lease for the
purpose of making a hotel on it on 23/09/1960,
following which, Mahendrakumar P. Desai, the
father of the applicants submitted an objection on
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26/11/1962 and from then, the legal proceedings
with respect to the land in question was initiated
by the applicants.
Upon sending the objection to the City Survey
Office, Vadodara, it was informed on 19/02/1963
that the acquired land is owned and occupied by
the Government. The Assistant Collector passed an
order dated 01/06/1964 and held that, the said land
was ancestral property of the father of the
applicants. The Collector suo motu set aside the
order of the Assistant Collector and ordered
revision. Thereafter, the Assistant Collector,
Vadodara passed the order dated 30/11/1966
stating that the said land was a part of parade
ground and owned by the Government.
In the Appeal No.4/1967 filed by the father of
the applicants challenging the said order, an order
dated 09/08/1968 was passed against the father the
applicants. The father of the applicants filed an
appeal vide Appeal No.137/1968 before Gujarat
Revenue Tribunal. Gujarat Revenue Tribunal
remanded it to the Assistant Collector, Vadodara
after carrying out revision with respect to some
points on 11/07/1969. In the said case No.37(2) and
2/73, the Collector, Vadodara passed an order on
07/06/1980 rejecting the demand of the father of
the applicants. The acquired land was held to be
owned by the Government and Fatesingh Regiment
as a part of Fatesingh Regiment. The father of the
applicants filed an appeal vide Appeal No.15/1981
in the Court of the Collector and the same was
dismissed on 14/05/1983 and it was held that the
acquired land of Fatesingh Regiment includes 371
and 372 and that it was owned by the Government.
Aggrieved by the said order, the father of the
applicants filed an appeal vide Appeal No. T.E.N.A.
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36/90 before Gujarat Revenue Tribunal and on
29/11/1991, the appeal was allowed and the said
acquired land was held to be of private ownership.
But the said land had already been occupied by the
Government and challenging the said order, the
Government filed SCA No.6428/92 in the High
Court of Gujarat. The Judgment with respect to the
said acquired land came in favour of the father of
the applicants and therefore, after carrying out
procedure under the Urban Land (Ceiling and
Regulations) Act, a permission as per section 21(1)
for construction of residential houses was obtained
on 29/06/1992. When he went to the site to start
the process of construction, the Government
stopped him and told that the land is occupied by
the Government.
Thereafter, the father of the applicants
filed a suit against the Commander, S.R.P. Group
No.1, Government, Principal Training School etc.
and sought a relief to restrain the respondents or
their Officers from preventing him to carry out
construction work on the said land. The Civil Judge
granted interim injunction. But, since the said land
was occupied by the Government, the father of the
applicant was not allowed to enter in the acquired
land. Civil Appeal No.194/1992 was filed before the
District Judge by the government, wherein the
order of Exhibit - 5 was set aside. Thereafter, the
father of the applicant filed Civil Revision
Application No.1341/1992 in the Hon'ble High
Court and the Special Civil Suit No.776/1992 was
filed by the State in the Civil Court, Vadodara. The
suit was tried and an order dated 21/03/1993 was
passed in favour of the applicants. The State filed
First Appeal No.969/1994 in the Hon'ble High
Court against the same. In this regard, the order
was passed on 07/05/2002 against the State and
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the order was kept in abeyance for three months
considering the possession of the State on the land.
Thereafter, the State filed Civil Application
No.7898/7900-2002 in the Hon'ble Supreme Court
against the Hon'ble Gujarat High Court, wherein
the land was held to be the ancestral land of the
applicants and the order was passed on 10/04/2006
in favour of the applicants.
(27) Among the judgments of the Hon'ble
Supreme Court and the High Court produced on
behalf of the applicants, following judgments have
been produced with respect to the entitlement for
getting interest from the time when the respondent
took over possession of the acquired land. If the
same are considered, it appears that (1) in the
judgment in Supreme Court Civil Appeal
No.1867/2009, 2016 (0) A.I.G.E.L.S.C. 58071
Balwansing vs. Land Acquisition Collector, the
order was passed by the Hon'ble Supreme Court to
pay an additional interest at the rate of 15% per
annum from 01/07/1984 when the State took over
the possession of the land till 02/09/1993, which
was the date of notification as per Section 4(1) of
the said Act. (2) in the judgment in Supreme Court
Civil Appeal No.7175/2013, 2013 (0) A.I.G.E.L.S.C.
57514 Tehrakhatun Vs. Land Acquisition Officer,
the order was passed to pay the interest at the rate
of 15% per annum to the applicants as
rent/damages from 01/01/1938, date of the
possession, till 10/01/1996, the date of notification
as per Section 4(1) of the said Act. (3) in the
judgment in Supreme Court Civil Appeal
No.2693/2007, 2007 (0) A.I.G.E.L. S.C. 39434 Madi
Shetty Balaramul vs. Land Acquisition Officer, the
order was passed to pay an additional interest at
the rate of 15% per annum from 16/03/1979 to
22/12/1991. (4) in the judgment in Supreme Court
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Civil Appeal No.1213/2016 Heirs of Decd.
Ghelabhai Valabhai vs. Second Additional Special
Land Acquisition Officer, the order was passed to
pay the interest at the rate of 15% per annum from
the date of taking over possession from the
applicant to the date of notification as per Section
4(1) of the said Act, i.e. from 01/07/1984 to
02/09/1993. (5) in the judgment in Gujarat High
Court First Appeal No.5828/2019 Heirs of Decd.
Nagjibhai Valabhai Vs. Second Additional Special
Land Acquisition Officer, the order was passed to
pay the additional interest at the rate of 15% per
annum from the date of taking over possession
from the applicants to the date of notification as
per Section 4(1) of the said Act, i.e. from
01/07/1984 to 02/09/1993. In the same manner, in
the judgments in (6) 2020 (0) A.I.G.E.L. - S.C. -
2769 Merabhai Bhagwanbhai Vs. Second
Additional Special Land Acquisition Officer, (7)
2011 (0) A.I.G.E.L. - H.C. - 226303 State of Gujarat
Vs. Jayantbhai Chaturbhai Son of Deceased, (8)
A.I.R. 1989 Bombay 9 At Nagpur State of
Maharashtra and Ors. Vs. Nanabh Rathod and Ors.,
the orders have been passed to pay additional
interest from the date of possession.
(28) Considering the aforesaid facts, there
was a dispute between the State and the father of
the applicants for many years with respect to the
right of ownership of the acquired land. The Appeal
No. T.E.N.A. 36/90 before the Gujarat Revenue
Tribunal was allowed on 29/11/1991 and the
acquired land was held as the land of private
ownership. The said order has been upheld.
Thereafter, permissions were sought to construct
residential houses after carrying out the procedure
under the Urban Land (Ceiling and Regulation) Act.
Even after getting the permission, the State
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prevented Decd. Mahendrakumar Desai from
performing action. Considering the said facts, legal
proceedings had been going on between the State
and Decd. Mahendrakumar P. Desai since 1960
with respect to the ownership of the land.
However, for the first time, Decd. Mahendrakumar
P. Desai was held as the owner in the appeal before
the Gujarat Revenue Tribunal. Thereafter, it has
been held upto Hon'ble Supreme Court that Decd.
Mahendrakumar P. Desai and his heirs have the
ownership right. Even after this, the possession of
the acquisition has not been evicted by the
respondent/State and Decd. Mahendrakumar P.
Desai has been prevented from doing construction
work. In such a situation, since the possession was
kept by the State till the date of publication of the
notification for land acquisition as per section 4,
i.e. 09/02/2007 after 29/11/1991, the date of
judgment in favour of Mahendrakumar P. Desai in
the Appeal No. T.E.N.A. 36/90 before the Revenue
Tribunal, the applicants are entitled for the
additional interest/rent for that period as per the
aforementioned judgments of the Hon'ble Supreme
Court. Therefore, the reply to the Issue No.2 is
affirmative. Thus, as the reply to the Issue No.1 to
3 is affirmative, the following final order is passed.
// Final Order //
(1) The reference applications of the applicants
vide L.A.R. No.37/2009, 35/2009 and 55/2009 are
partly allowed.
(2) The respondent is ordered to consider the
market value of Rs.26,048/-, in words Rs.
Twenty Six Thousand and Forty Eight only/-,
per squaremeter for the acquired land (area
122718 Sq.m.) of City Survey No.1-A/2, Tika
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No.27/15-16-17 near the Lalbaug Fatak in
Vadodara city. [The order is passed that, the
amount shall be paid with interest at the rate of
9% for the first year from the date of notification
under Section - 4, i.e. from09/02/2007 and at the
rate of 15% per annum thereafter till the
amount is deposited.] (Amendment has been
done as per the order with Exhibit - 210.)
The amount paid earlier to the applicants shall be
deducted from the aforesaid amount.
(3) With respect to the said reference
applications, as per Section - 23(1-A) of the Land
Acquisition Act, the applicants are entitled to
recover from the respondent an additional
amount at the rate of 12% per annum apart from
the amount determined for the period between
09/02/2007, the date of notification under
section - 4 of the Land Acquisition Act and
11/12/2008, the date of award under Section -
(4) The solatium amount at the rate of 30% on
the additional compensation shall be paid to all
the applicants.
(5) Further, the applicants are also entitled to
receive from the respondent the cost borne by
the applicants in the respective reference
applications.
(6) The applicants are entitled to get additional
interest/rent at the rate of 15% per annum on
the total amount from the date of possession by
the respondent i.e. from 29/11/1991 to the date of
notification under Section - 4 for the acquired
land, i.e. 09/02/2007.
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(7) The distribution of the additional amount
shall be done among the parties as per the order
in the Reference No.16/2010 filed on behalf of the
Stateon the basis of the decree passed in the
Special Civil Suit No.516/2008.
(8) After calculating the admissible amount, its
statement shall be kept with this order, which
shall be considered as the part of the order.
Further, the copy of this judgment shall be
kept in all the cases.
(9) The award shall be drawn as per the order.
(10) The said order shall be kept in Land
Reference Case No.37/2009."
7.6 On a perusal of the judgement and award of the
Reference Court, it is borne out that while assessing the
market value of the land in question, it had before it four sets
of comparable instances for fixation of the price of the subject
land. They were as under:
I. Exh.146 was the minutes of the meeting dated
17.04.2000 of the District Land Price Committee in
respect of nearby land bearing survey no.553 and 554
admeasuring about 2141 sq.mtrs. and 4038 sq.mtrs.
respectively at Vadodara Kasba. It was in context of
granting of the said lands on lease basis to welcome
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group hotel. The price came to be determined at
Rs.28,000/- per sq. mtr. The Reference Court did not
take this instance into account for determining the price
of the subject land as the minutes of the meeting of the
District Land Price Committee was not confirmed by the
State Land Valuation Committee.
II. At Exh. 147 was an instance where land bearing
CPS Nos.12 and 13 admeasuring 6125.64 sq. mtr.
located in station area in the City of Vadodara, was
granted on a lease basis for 30 years to the Corporation
for traffic planning. The price of the land as per the
minutes of the meeting dated 13.09.2006 came to be
determined at Rs.40,000 per sq. mtr. For this purpose,
what was considered was the sale price of Rs.10,038.80
per sq. mtr. Of one another comparable piece of land
bearing CTS No.139 admeasuring 1992.27 sq. mtrs. as
per its sale deed dated 25.01.2005. Thereafter, in
accordance with various factors referred to in the
government circular dated 23.09.2002 the price was
determined at Rs.40,000/-.
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III. At Exh.148 was an instance of an auction of land
bearing FP No.166 admeasuring 2200 sq. mtr. located at
Vasana. In the auction held on 08.02.2007, the
leasehold price of the land was fixed at 40,200 per sq.
mtr. The lease-deed was 24.05.2007. The Trial Court did
not accept the said price as the Town Planning Scheme
was already implemented, wherein, after making the
provisions for the main road, the final plot numbers were
given, whereas, as per the reference court, the subject
land was one single unit with a large area and the Trial
Court believed that it cannot be expected that the whole
land was on the main road.
IV. The Trial Court for the same reasons as Exh.158
did not accept the instance of the leasehold price of an
auction held on 09.02.2007 of a final plot admeasuring
5556 sq. mtr. located at Akota whose leasehold price
was fixed at Rs.45,500 per sq. mtr.
7.6 What is therefore evident is that of the four yardsticks
available before the Trial Court to determine the price of the
subject land vis-a-vis a comparable land, the Trial Court only
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accepted Exh.147 which was a case where City Survey No.12
and 13 admeasuring 6125.64 sq. mtr. land located in the
station area was taken into account for determining the price
of the subject land.
7.7 The exercise undertaken by the learned Reference Court
from the relevant paragraphs of the judgement, for
determining the valuation rate of Rs.26048/- per sq. mtr. to be
applied to the subject land was as under:
I. A sale deed dated 25.01.2005 in respect of land
bearing City Survey No.139 admeasuring 1992.27 sq.
mtrs. was available.
II. In order to determine the price of another nearby
land in the City, bearing City Survey Nos.12 and 13
admeasuring 6125.64 sq. mtrs. for granting the same on
the lease, the Town Planner in his valuation report dated
07.09.2006 applied the sale instance of Rs.10,038.80 per
sq. mtr. of the sale deed dated 25.01.2005. The instance
of Rs.10,038.80 was doubled to Rs.20,077.60 per sq.
mtr. 15% escalation i.e. Rs.4927.38 was added for the
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period from 25.01.2005 to 07.09.2006. This was done as
per the circular dated 23.09.2002 sought to be produced
by way of additional evidence. The figure of
Rs.25,004.98 per sq. mtr. was arrived at. Though the
sale instance made further additions of 25% each for
being on the main road and on the frontage and 10%
locational advantage to arrive at a figure of Rs.43,000/-,
the Trial Court only took Rs.25004.98 as a base price
admeasuring 6125.64 sq. mtrs. and applied the price of
Rs.25004.98 as the base price.
III. By adding an escalation amount @ 10% for five
months from 13.09.2006 to 09.02.2007, the Trial Court
arrived at a figure of Rs.26048 per square meters as the
enhanced compensation for the subject land. This
methodology adopted by the Reference Court is the bone
of contention as far as the parties are concerned for
arriving at the market value of the subject land.
8. Reasoning assigned by the Reference Court by relying
on the document Ex. 147 dated 13.09.2006 indicates that the
Reference Court had deducted an amount at the rate of 25%
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of the wide frontage of the area. A further amount at the rate
of 25% of advantage of location was deducted to arrive at a
figure of Rs.26,048/-. Even if we were to accept the argument
of the State Government that the circular dated 23.09.2002
was not applicable then we must follow the decision of the
Division Bench of this court in the case of Amaji Mohanji
Thakore (supra). Paras 21, 25 and 28 of the decision in the
said case read as under:
"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
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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. 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 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
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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."
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
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
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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 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 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
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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 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."
8.1 The Division Bench accepted the standard or a yardstick
of an instance of a piece of land where the valuation made by
the valuation committee of the government for the fixation of
the price for allotment of land at the very village by way of a
sale instance or price fixed by the government should be
accepted. It is not open for the State Government to contend
that for the purpose of giving the land to the citizens owned
by the State Government, formula and procedure and
principle as laid down in the circular dated 23.09.2002 would
apply and while taking the land of the citizens under
compulsory acquisition the valuation method as prescribed by
the State Government in its circular dated 23.09.2002 will not
apply. The law cited by the State in the case of Dyagala
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Devamma (supra) cannot be disputed so also the decisions
cited at the bar by the State on the question of deductions to
be made. Paras 7 to 22 of Dayagala Devamma (supra) read
as under:
"7. By the impugned judgment, the High
Court dismissed the appeal filed by the appellant-
Railways and partly allowed the cross objections
filed by the landowners and enhanced the
compensation to Rs.15,97,200/ per acre. The
High Court, upheld the market value determined
by the Reference Court i.e. Rs.21,29,600/ per
acre but reduced the deduction towards
developmental charges from 50% to 25% and
accordingly worked out the compensation "at
the rate of Rs.15,97,200/ per acre". It is
against this judgment, the appellant Railways
felt aggrieved and filed the present appeals by way
of special leave before this Court.
8. Heard Mr. Vikramjit Banerjee, learned
Additional Solicitor General for the
appellantUOI and Mr. B. Adinarayana Rao, learned
senior counsel for the respondents.
9. Mr. Vikramjit Banerjee, learned
Additional Solicitor General appearing for the
appellant while assailing the legality and
correctness of the impugned judgment
essentially made two submissions. In the first
place, learned ASG contended that the High
Court erred in further enhancing the
compensation at Rs.15,97,200/ per acre.
According to him the compensation
determined by the Reference Court payable at
the rate of Rs.10,64,800/ per acre was just, legal
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and proper and, therefore, it did not call for any
further enhancement.
10. In the second place, learned ASG
urged that having placed reliance on exemplar
Sale Deed (Ex P18) for determining the
market value, the Reference Court rightly
deducted 50% towards development charges,
whereas the High Court erred in deducting 25%
towards developmental charges.
11. According to learned ASG, the High
Court ought to have appreciated that there
were three distinguishing factors appearing from
the exemplar sale deed (Ex.P18). Due to
these three factors, deduction of 50%
towards developmental charges from the market
value was called for. These factors are, First, Sale
Deed (Ex.P18) was for a very small piece of land
(19 Guntas=1/2 acre); Second, the land
which was the subject matter of ExP18 had a
peculiar site because it was situated facing
two roads one on the east side and other on the
north side; and Third, it was a developed land.
12. It was, therefore, urged that so far as the land
in question is concerned, the same did not
have these factors and, therefore, the
Reference Court rightly considered it proper to
deduct 50% towards developmental charges from
the market value which was worked out on the
basis of Sale Deed (Ex.P18). It was urged that the
High Court without assigning any reasons much
less cogent reasons erred in reducing
developmental charges from 50% to 25% from
the market value. Learned ASG, therefore,
prayed for restoration of the award of the
Reference Court in place of impugned
judgment of the High Court.
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13. Per contra, learned senior counsel for
the respondents (landowners) supported the
impugned judgment and contended that it
does not call for any interference and hence the
appeals deserve to be dismissed.
14. The question arises for consideration in these
appeals is whether the High Court was justified in
deducting 25% towards developmental charges
from the market value of the land in
question against 50% deduction made by the
Reference Court. In other words, having
regard to the facts and circumstances of the
case, whether the Reference Court was
justified in deducting 50% from the market
value of the land or whether the High Court was
justified in deducting 25%.
15. Before we examine the facts of this
case, it is necessary to take note of general
principles of law on the subject in question
which are laid down by this Court in several
cases and some of which were also cited at the Bar
by the learned counsel for the parties. Indeed, if
we may say so, law on the several issues
urged herein by the learned counsel for the parties
is already settled by this Court and what has varied
in its application depends on the facts of each case.
16. In Chimanlal Hargovinddas vs Special
Land Acquisition Officer, Poona & Anr. (1988) 3
SCC 751, this Court dealt with the question as to
how the Court should determine the valuation
of the lands under acquisition and what broad
principle of law relating to acquisition of land
under the Act should be kept in
consideration to determine the proper market
value of the acquired land.
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17. In Para 4 of the judgment, this Court laid
down as many as 17 principles, which are
reproduced below for perusal:
"(1) to (4)........................................
(5) The market value of land under
acquisition has to be determined as on
the crucial date of publication of the
notification under Section 4 of the Land
Acquisition Act (dates of notifications
under Sections 6 and 9 are irrelevant).
(6) The determination has to be made
standing on the date line of valuation (date
of publication of notification under Section 4)
as if the valuer is a hypothetical purchaser
willing to purchase land from the open
market and is prepared to pay a
reasonable price as on that day. It has
also to be assumed that the vendor is willing
to sell the land at a reasonable price.
(7) In doing so by the instances method, the
court has to correlate the market
value reflected in the most comparable
instance which provides the index of market
value.
(8) Only genuine instances have to be
taken into account. (Sometimes
instances are rigged up in anticipation of
acquisition of land.) (9) Even postnotification
instances can be taken into account (1)
if they are very proximate, (2) genuine
and (3) the acquisition itself has not
motivated the purchaser to pay a higher
price on account of the resultant
improvement in development prospects.
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(10) The most comparable instances out
of the genuine instances have to be
identified on the following considerations:
(i) proximity from time angle,
(ii) proximity from situation angle. (11)
Having identified the instances which
provide the index of market value the
price reflected therein may be taken
as the norm and the market value of
the land under acquisition may be deduced
by making suitable adjustments for the plus
and minus factors vis àvis land under
acquisition by placing the two in
juxtaposition.
(12) A balancesheet of plus and minus
factors may be drawn for this purpose and the
relevant factors may be evaluated in
terms of price variation as a prudent
purchaser would do.
(13) The market value of the land under
acquisition has thereafter to be
deduced by loading the price reflected in the
instance taken as norm for plus factors
and unloading it for minus factors.
(14) The exercise indicated in clauses
(11) to (13) has to be undertaken in a
common sense manner as a prudent man of
the world of business would do. We may
illustrate some such illustrative (not
exhaustive) factors:
Plus factors Minus factors
1. smallness of 1. largeness of area
size
2. proximity to a 2. situation in the
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road interior at a distance
from the road
3. frontage on a 3. narrow strip of land
road with very small
frontage compared
to depth
4. nearness to 4. lower level
developed area requiring the
depressed portion to be
filled up
5. regular shape 5. remoteness from
developed locality
6. level visàvis 6. some special
land under acquisition
disadvantageous factor
which would deter a
purchaser
7. special value
for an owner of
an adjoining
property to whom it
may have some very
special advantage
(15) The evaluation of these factors of
course depends on the facts of each case.
There cannot be any hard and fast or
rigid rule. Common sense is the best
and most reliable guide. For instance,
take the factor regarding the size. A
building plot of land say 500 to 1000 sq. yds.
cannot be compared with a large tract or
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block of land of say 10,000 sq. yds. or more.
Firstly while a smaller plot is within the reach
of many, a large block of land will
have to be developed by preparing a
lay out, carving out roads, leaving open
space, plotting out smaller plots, waiting
for purchasers (meanwhile the invested
money will be blocked up) and the
hazards of an entrepreneur. The factor
can be discounted by making a deduction by
way of an allowance at an appropriate
rate ranging approximately between 20
per cent to 50 per cent to account for
land required to be set apart for carving
out lands and plotting out small plots.
The discounting will to some extent also
depend on whether it is a rural area
or urban area, whether building activity
is picking up, and whether waiting
period during which the capital of the
entrepreneur would be locked up, will be
longer or shorter and the attendant
hazards.
(16) Every case must be dealt with on its own
fact pattern bearing in mind all these
factors as a prudent purchaser of land in
which position the judge must place himself.
(17) These are general guidelines to be
applied with understanding informed
with common sense."
18. These principles are invariably kept in mind
by the Courts while determining the market value
of the acquired lands (also see Union of
India vs. Raj Kumar Baghal Singh)
19. In addition to these principles, this
Court in several cases have laid down that
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while determining the true market value of the
acquired land especially when the acquired
land is a large chunk of undeveloped land,
it is just and reasonable to make appropriate
deduction towards expenses for development
of acquired land. It has also been
consistently held that at what percentage
the deduction should be made varies from
10% to 86% and, therefore, the deduction should
be made keeping in mind the nature of the land,
area under acquisition, whether the land is
developed or not and, if so, to what extent,
the purpose of acquisition, etc. It has also
been held that while determining the
market value of the large chunk of land, the value
of smaller pieces of land can be taken into
consideration after making proper deduction
in the value of lands especially when sale
deeds of larger parcel of land are not available.
This Court has also laid down that the Court
should also take into consideration the
potentiality of the acquired land apart from
other relevant considerations. This Court has
also recognized that the Courts can always
apply reasonable amount of guesswork to
balance the equities in order to fix a just and fair
market value in terms of parameters specified
under Section 23 of the Act. (See Trishala Jain
& Anr. Vs. State of Uttaranchal & Anr., and
Vithal Rao & Anr. Vs. Special Land Acquisition
Officer)
20. Keeping in mind the aforementioned
principles, when we take note of the facts of the
case at hand, we find that firstly, the land
acquired in question is a large chunk of land
(101 acres approx.); Secondly, it is not fully
developed; Thirdly, the respondents
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(landowners) have not filed any exemplar
sale deed relating to large pieces of land sold in
acres to prove the market value of the
acquired land; Fourthly, exemplar relied on by
the respondents, especially Ex.P18 pertains to
very small pieces of land (19 guntas); Fifthly,
the three distinguishing features noticed in
the land in sale deed (Ex.P18) are not
present in the acquired land.
21. It was for the aforementioned reasons,
in our opinion, the Reference Court was justified
in making deduction of 50% towards developmental
charges from the market value. The High Court, in
our opinion, did not assign any good reason
as to why and on what basis, it considered
proper to make deduction towards developmental
charges at the rate of 25% in place of 50%.
22. This Court has held in Trishala Jain's
case (supra) that it depends upon the facts of each
case to decide for determination of the
market value of the land as to what
percentage should be adopted for deduction.
In our opinion, the reasons mentioned above
were rightly made basis by the Reference Court to
support the deduction of 50%."
8.2 The Apex Court while laying down these principles and
setting out illustrative and not exhaustive factors observed
that these were general guidelines to be applied with
understanding informed with common sense. The reasonings
of the Reference Court as evident from reading paragraph no.
23 of the order/award indicate that these very guiding
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principles have been taken care of by arriving at a figure of
Rs.26048/- and not accepting the entire figure of Rs.43,000/-
of the land instance relied upon. The Reference Court has
considered minus factor of the largeness of the land,
narrowness, some discount of it being at an interior etc and
made the discounts or deductions necessary. Reading of the
decision in the case of Rameshbhai Jivanbhai Patel (supra),
the Hon'ble Supreme Court has held that increase in land
prices depends on four factors namely situation of the land,
nature of development in the surrounding area, availability of
land for development and demand for land in the area. An
increase of 10% to 15% in the market value in urban areas is
an accepted principle.
8.3 At this stage, we may also profitably refer to the decision
of the Apex Court in the case of Kapil Mehra (supra). While
reiterating the principles of determining a reasonable market
value which the acquired lands are capable of fetching, the
Apex Court has accepted the fact that where definite material
is not forthcoming either in the shape of sales of similar lands
in the neighbourhood or about the date of notification under
section 4(1), other sale instances as well as other evidences
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have to be considered. Reading the award of the Land
Reference Court, which is under challenge before us, we find
that while considering the report of the valuation committee
in context of the lease hold price for determination of the
market value of the subject land, the reference court did make
suitable adjustments having regard to various positive and
negative factors vis-a-vis the land under acquisition and the
comparable instance by placing the two in juxtaposition.
Though the reference court had only taken ex. 147 into
consideration, which had an instance of price fixation at
Rs.43,000/-, this court has before it exs. 146, 148 and 149 too.
The land size of ex. 147 was 6125.64 sq. mtrs. At ex. 146, the
land size was 21414 sq. mtrs and 4038 sq.mtrs. At Ex. 148,
land size was 2200 sq. mtrs whereas the land size of ex. 149
was 5556 sq. mtrs. If the circular dated 23.09.2002 is read,
any area exceeding 1500 sq. mtrs is classified to be a large
tract of land. Considering the decision in the case of Kapil
Mehra (supra), particularly para 18-20, thereof would
indicate that for ascertaining the market value of the acquired
land, lease hold lands are the comparable instances and in
context of the subject land if these several lease hold
instances are seen, the prices have a marginal variation. The
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average of the instances would be Rs.42,000/- and if minus
factors of the largeness of the land is considered for
comparison, appropriate deduction is made to work out the
market value at Rs.26,048/- per sq. mtr. The objection of the
State that a lease hold instance cannot be used as a
comparable instance is negatived. True, that in auction sales
the element of competition makes them unsafe guides for
determining the market value and therefore the reference
court has not taken into consideration the documentary
evidence of the auction sales at Exs. 148 and 149.
8.4 When we consider the average price arrived at by the
Reference Court at Rs.26,048/-, the record of the land
acquisition proceedings indicate that the jantri value was
Rs.63000/- the true value was Rs.20,000/- and the value
assessed safely could be Rs.10,000/- per sq. mtr. Therefore,
to award just Rs.1914/- per sq. mtr. was apparently an error.
9. On the issue of deductions we find that the deductions
have been made to arrive at a lower market value of the
subject land viz-a-viz the price governing the land at Ex. 147.
The stand of the state is that appropriate deductions for or
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towards development of the land by providing enough space
for roads etc. are not made and the deduction varies from
25% to 75%. Relevant paragraphs in the decisions relied
upon are cited which are as under:
(a) In case of Land Acquisition Officer vs. L.
Kamalamma (SMT) Dead by LRS and Others,
reported in (1998) 2 SCC 385, it was observed as
under:
"6. ... Further when no sales of comparable
land was available where large chunks of land
had been sold, even land transactions in
respect of smaller extent of land could be
taken note of as indicating the price that it
may fetch in respect of large tracts of land by
making appropriate deductions such as
for development of the land by providing
enough space for roads, sewers, drains,
expenses involved in formation of a lay
out, lump sum payment as also the
waiting period required for selling the
sites that would be formed." (Emphasis
supplied).
(b) In case of Lal Chand vs. Union of India and
Another, reported in (2009) 15 SCC 769, it was
held as under:
"13. The percentage of 'deduction for
development' to be made to arrive at the
market value of large tracts of undeveloped
agricultural land (with potential for
development), with reference to the sale price
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of small developed plots, varies between
20% to 75% of the price of such developed
plots, the percentage depending upon the
nature of development of the lay out in which
the exemplar plots are situated."
"15. The Development Authority will also
incur considerable expenditure for
development of undeveloped land into a
developed layout, which includes the cost of
levelling the land, cost of providing roads,
underground drainage and sewage facilities,
laying waterlines, electricity lines and
developing parks and civil amenities, which
would be about 35% of the value of the
developed plot. The two factors taken
together would be the `deduction for
development' and can account for as much as
75% of the cost of the developed plot."
(Emphasis supplied)
(c) Further reliance is placed on the judgment of the
Hon'ble Supreme Court in case of Union of India
vs. Dyagala Devamma, reported in (2018) 8 SCC
485, wherein, it was observed as under:
"19. In addition to these principles, this
Court, in several cases have laid down that
while determining the true market value of
the acquired land especially when the
acquired land is a large chunk of undeveloped
land, it is just and reasonable to make
appropriate deduction towards expenses for
development of acquired land. ... ... ... It
has also been held that while
determining the market value of large
chunk of land, the value of smaller pieces
of land can be taken into consideration
after making proper deduction in the
value of lands especially when sale deed
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of large parcel of land are not available....
... " (Emphasis supplied).
"21. It was for the aforementioned reasons,
in our opinion, the Reference Couurt was
justified in making deduction of 50%
towards developmental charges from the
market value. The High Court, in our
opinion, did not assign any good reason as to
why and on what basis, it considered proper
to make deduction towards developmental
charges @ 25% in place of 50%. " (Emphasis
supplied).
"22. This Court has held in Trishala Jain case
that it depends upon the facts of each case to
decide for determination of the market value
of the land as to what percentage should be
adopted for deduction. In our opinion, the
reasons mentioned above were rightly
made basis by the Reference Court to
support the deduction of 50%." (Emphasis
supplied).
(d) In case of Union of India vs Premlata reported in
2022 7 SCC 745, the Hon'ble Supreme Court in
paras 17 and 18, observed as under:
"17. ... As such, the High Court has not
assigned any good reason as to why and
on what basis, it considered proper to
make deduction towards development
charges @ 33.33% (1/3rd deduction). The
High Courrt has not at all considered the
relevant factors while making an appropriate
deduction towards development charges."
(Emphasis supplied).
"18. Therefore, considering the relevant
factors on the appropriate deduction towards
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development charges as per the law laid
down by this Court in the aforesaid decisions
... we find that firstly, the land acquired in
question is a large extent of land (45 ha. 89
R); secondly it was an agricultural land not
fully developed; thirdly, the land owner
having not filed any exemplar sale deed
relating to large pieces of land sold in acres
to prove the market value of the acquired
land; and fourthly, exemplars relied upon by
the landowner, especially Exts. 91 to 93
pertains to very small plots / parcels of
land and that too, in respect of small plots
which were developed and converted to non-
agricultural use and the distinguishing
features noticed in the land in sale deeds,
Ests. 91 to 93 are not present in the acquired
land, we are of the firm view that the
deduction towards development charges
at 1/3rd as deduced by the High Court can
be said to be on a lower side. Considering
the aforesaid facts and circumstances and the
relevant factors, we are of the opinion that if
40% deduction is ordered to be made
towards development charges, it can be
said to be an appropriate deduction
towards development charges in the facts
and circumstances of the case. (Emphasis
supplied).
(e) Also in case of Mala and Others vs. State of
Punjab and Others, reported in 2023 SCC
OnLine SC 1005, it was held as under:
"11. The next submission made by Mr.
Patwalia with regard to the one third cut
imposed by the High Court has also hardly
any force. The High Court after determining
the market value of the lands acquired at
Rs.3000/- per marla, has deducted one
third amount therefrom towards the
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development charges taking into
consideration the settled legal position. It is
well settled position of law that while
determining the deduction for
development charges, the courts should
keep in mind the nature of land, area
under acquisition, whether the land is
developed or not, if developed to what
extent, the purpose of acquisition etc.
Though, it is true that while determining the
market value of large chunk of land, the value
of smaller pieces of land could be taken into
consideration, however, after making
appropriate deduction in the value of lands or
setting apart land required for carving out
roads, leaving open spaces, plotting out
smaller plots etc. The percentage of
deduction or the extent of area required to be
set apart has to be assessed by the courts
having regard to the size, shape, situation,
user etc. of the lands acquired. It is
essentially a kind of guess work the courts
are expected to undertake." (Emphasis
supplied).
10. In the case of Sajan vs. State of Maharashtra and
others [(2020) 14 SCC 139], it has been held that the
deduction in large portion of land should be done taking into
consideration the deduction towards development and
deduction has to be carried out on the basis of the purpose of
acquisition for which the land is acquired. When we discuss
the issue of possession it is clear that the land is acquired for
police parade ground and there already is development on
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land like existence of equipment etc and not that should
suggest that development is needed therefore there is no
reason for deduction. A maximum deduction of 15% to 20% is
required and as the working figure shows from the
compensation so awarded is that the compensation awarded
by the Reference Court is less compared to the available
market value.
10.1 It will be apt to reproduce paragraphs no. 29 to 40 of the
decision in the case of Kapil Mehra (supra) which deals with
the yardstick of deduction towards development.
"29. The High Court has deducted 40% from the
average price to equalize the factor of the market
value of a small plot of land as compared to large
area of land acquired and the figure works out to
Rs.22,460.25. High Court has also deducted one
third towards development cost and determined
the market value of the acquired land at
Rs.14,974/- per sq. yard.
30. Appellants contend that the rate of deduction
as applied by the High Court was highly excessive
as the acquired lands are situated in the area
already developed and have all potential for
development. It is submitted that the Court
repeatedly held that in assessing the compensation
payable in respect of lands which had the potential
for housing or commercial purposes, normally 20%
of the assessed value of the land is deducted,
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depending on the nature of the land, its location,
extent of expenditure involved for development and
the land required for roads and other civic
amenities etc. and while so, thumb rule of 331/3%
or one third cut on development cost cannot be
used in a situation when the exact development
cost has been established through evidence. The
appellants rely upon the documents issued by
Executive Engineer (Annexure P-5) to contend that
the cost of development of Vasant Kunj is only
Rs.330/- per Sq. Yard.
31. Mr. Amarendra Sharan, learned Senior Counsel
appearing for the respondents contended that in
forming a lay out by Delhi Development Authority
or any statutory authority, 40% of the land area is
to be deducted for formation of roads, drains, parks
and other civic amenities and further 35% is to be
deducted towards development cost for forming
the lay out, levelling the road, construction of
drainage and erection of electricity lines etc. It was
submitted that deduction for development on both
the components worked out to 70-75% and the
High Court was not justified in making standard
deduction of one third. It was further submitted
that if a suitable deduction is made, the
compensation awarded by the High Court seems to
be excessive and prayer for suitable reduction of
the award is made.
32. While making one third deduction towards
development cost, the learned single Judge did not
keep in view the two essential components of
deduction for development. Deduction for
development consists of two components:- firstly,
appropriate deduction to be made towards the area
required to be utilized for roads, drains and
common facilities like parks etc.; secondly, further
deduction to be made towards the cost of
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development, that is cost of levelling the land, cost
of laying roads and drains, erection of electrical
poles and water lines etc. For deduction of
development towards land and development
charges, the nature of development, conditions and
nature of the land, the land required to be set apart
under the Building Rules for roads, sewerage,
electricity, parks, water supply etc. and other
relevant circumstances involved are required to be
considered.
33. In Haryana State Agricultural Market Board
And Anr. vs. Krishan Kumar And Ors., (2011) 15
SCC 297, it was held as under:
"10. It is now well settled that if the value of
small developed plots should be the basis,
appropriate deductions will have to be made
therefrom towards the area to be used for
roads, drains, and common facilities like park,
open space, etc. Thereafter, further deduction
will have to be made towards the cost of
development, that is, the cost of leveling the
land, cost of laying roads and drains, and the
cost of drawing electrical, water and sewer
lines."
34. Consistent view taken by this Court is that one
third deduction is made towards the area to be
used for roads, drains, and other facilities, subject
to certain variations depending upon its nature,
location, extent and development around the area.
Further, appropriate deduction needs to be made
for development cost, laying roads, erection of
electricity lines depending upon the location of the
acquired land and the development that has taken
place around the area.
35. Reiterating the rule of one third deduction
towards development, in Sabhia Mohammed Yusuf
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Abdul Hamid Mulla (Dead) by Lrs. and Ors. vs.
Special Land Acquisition Officer and Ors., (2012) 7
SCC 595, this Court in paragraph 19 held as
under:-
"19. In fixing the market value of the acquired
land, which is undeveloped or
underdeveloped, the courts have generally
approved deduction of 1/3rd of the market
value towards development cost except when
no development is required to be made for
implementation of the public purpose for
which land in acquired. In Kasturi vs. State of
Haryana (2003) 1 SCC 354) the Court held:
(SCC pp. 359-60, para 7)
"7... It is well settled that in respect of
agricultural land or undeveloped land
which has potential value for housing or
commercial purposes, normally 1/3rd
amount of compensation has to be
deducted out of the amount of
compensation payable on the acquired
land subject to certain variations
depending on its nature, location, extent
of expenditure involved for development
and the area required for road and other
civic amenities to develop the land so as
to make the plots for residential or
commercial purposes. A land may be
plain or uneven, the soil of the land may
be soft or hard bearing on the
foundation for the purpose of making
construction; may be the land is situated
in the midst of a developed area all
around but that land may have a hillock
or may be low-lying or may be having
deep ditches. So the amount of expenses
that may be incurred in developing the
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area also varies. A claimant who claims
that his land is fully developed and
nothing more is required to be done for
developmental purposes, must show on
the basis of evidence that it is such a
land and it is so located. In the absence
of such evidence, merely saying that the
area adjoining his land is a developed
area, is not enough, particularly when
the extent of the acquired land is large
and even if a small portion of the land is
abutting the main road in the developed
area, does not give the land the
character or a developed area. In 84
acres of land acquired even if one
portion on one sides abuts the main
road, the remaining large area where
planned development is required, needs
laying of internal roads, drainage,
sewer, water, electricity lines, providing
civic amenities, etc. However, in cases
of some land where there are certain
advantages by virtue of the developed
area around, it may help in reducing the
percentage of cut to be applied, as the
developmental charges required may be
less on that account. There may be
various factual factors which may have
to be taken into consideration while
applying the cut in payment of
compensation towards developmental
charges, may be in some cases it is more
than 1/3rd and in some cases less than
1/3rd. It must be remembered that there
is difference between a developed area
and an area having potential value,
which is yet to be developed. The fact
that an area is developed or adjacent to
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a developed area will not ipso facto
make every land situated in the area
also developed to be valued as a
building site or plot, particularly when
vast tracts are acquired, as in this case,
for development purpose." (emphasis
supplied)
The rule of 1/3rd deduction was reiterated
in Tejumal Bhojwani v. State of U.P.
((2003)10 SCC 525, V. Hanumantha Reddy v.
Land Acquisition Officer, (2003) 12 SCC
642, H.P. Housing Board v. Bharat S.
Negi (2004) 2 SCC 184 and Kiran Tandon v.
Allahabad Development Authority. (2004)10
SCC 745"
36. While determining the market value of the
acquired land, normally one third deduction i.e.
331/3% towards development charges is allowed.
One third deduction towards development was
allowed in Special Tehsildar, L.A. Vishakapatnam
vs. Smt.A. Mangala Gowri, (1991) 4 SCC
218; Gulzara Singh & Ors. vs. State of Punjab &
Ors., (1993) 4 SCC 245; Santosh Kumari & Ors. vs.
State of Haryana, (1996) 10 SCC 631; Revenue
Divisional Officer-cum-LAO vs. Shaik Azam
Saheb etc., (2009) 4 SCC 395; A.P. Housing Board
vs. K. Manohar Reddy, (2010)12 SCC 707; Ashrafi
& Ors. vs. State of Haryana & Ors., (2013) 5 SCC
527 and Kashmir Singh vs. State of Haryana &
Ors., (2014) 2 SCC 165.
37. Depending on nature and location of the
acquired land, extent of land required to be set
apart and expenses involved for development, 30%
to 50% deduction towards development was
allowed in Haryana State Agricultural Market
Board and Anr. vs. Krishan Kumar and Ors. (2011)
15 SCC 297; Deputy Director Land Acquisition vs.
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Malla Atchinaidua And Ors. AIR 2007 SC 740;
Mummidi Apparao (Dead by LR) vs. Nagarjuna
Fertilizers & Chemical Ltd., AIR 2009 SC 1506;
and Lal Chand vs. Union of India and Anr. (2009)
15 SCC 769.
38. In few other cases, deduction of more than 50%
was upheld. In the facts and circumstances of the
case in Basavva (Smt.) And Ors. v. Spl. Land
Acquisition Officer And Ors., (1996) 9 SCC 640,
this Court upheld the deduction of 65%. In Kanta
Devi & Ors. vs. State of Haryana And Anr., (2008)
15 SCC 201, deduction of 60% towards
development charges was held to be legal. This
Court in Subh Ram & Ors. vs. State of Haryana &
Anr., (2010) 1 SCC 444, held that deduction of 67%
amount was not improper. Similarly, in
Chandrasekhar (dead) by L.Rs. and Ors. vs. LAO &
Anr., (2012) 1 SCC 390, deduction of 70% was
upheld.
39. We have referred to various decisions of this
Court on deduction towards development to stress
upon the point that deduction towards development
depends upon the nature and location of the
acquired land. The deduction includes components
of land required to be set apart under the building
rules for roads, sewage, electricity, parks and other
common facilities and also deduction towards
development charges like laying of roads,
construction of sewerage.
40.Rule of one third deduction towards
development appears to be the general rule. But so
far as Delhi Development Authority is concerned,
or similar statutory authorities, where well planned
layouts are put in place, larger land area may be
utilized for forming layout, roads, parks and other
common amenities. Percentage of deduction for
development of land to be made in DDA or similar
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statutory authorities with reference to various
types of layout was succinctly considered by this
Court in Lal Chand vs. Union of India & Anr. (2009)
15 SCC 769 and observing that the deduction
towards the development range from 20% to 75%
of the price of the plots, in paras 13 to 22, this
Court held as under:-
"13. The percentage of "deduction for
development" to be made to arrive at the
market value of large tracts of undeveloped
agricultural land (with potential for
development), with reference to the sale price
of small developed plots, varies between 20%
to 75% of the price of such developed plots,
the percentage depending upon the nature of
development of the layout in which the
exemplar plots are situated.
14. The "deduction for development" consists
of two components. The first is with reference
to the area required to be utilized for
developmental works and the second is the
cost of the development works. For example,
if a residential layout is formed by DDA or
similar statutory authority, it may utilize
around 40% of the land area in the layout, for
roads, drains, parks, playgrounds and civic
amenities (community facilities), etc.
15. The development authority will also incur
considerable expenditure for development of
undeveloped land into a developed layout,
which includes the cost of leveling the land,
cost of providing roads, underground
drainage and sewage facilities, laying water
lines, electricity lines and developing parks
ands civil amenities, which would be about
35% of the value of the developed plot. The
two factors taken together would be the
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"deduction for development" and can account
for as much as 75% of the cost of the
developed plot.
16. On the other hand, if the residential plot
is in an unauthorized private residential
layout, the percentage of "deduction for
development" may be far less. This is because
in an unauthorized layout, usually no land will
be set apart for parks, playgrounds and
community facilities. Even if any land is set
apart, it is likely to be minimal. The roads and
drains will also be narrower, just adequate for
movement of vehicles. The amount spent on
development work would also be
comparatively less and minimal. Thus the
deduction on account of the two factors in
respect of plots in unauthorized layouts,
would be only about 20% plus 20% in all 40%
as against 75% in regard to DDA plots.
17. The "deduction for development" with
reference to prices of plots in authorized
private residential layouts may range between
50% to 65% depending upon the standards
and quality of the layout.
18. The position with reference to industrial
layouts will be different. As the industrial
plots will be large (say of the size of one or
two acres or more as contrasted with the size
of residential plots measuring 100 sq. m to
200 sq m), and as there will be very limited
civic amenities and no playgrounds, the area
to be set apart for development (for roads,
parks, playgrounds and civic amenities) will
be far less; and the cost to be incurred for
development will also be marginally less, with
the result the deduction to be made from the
cost of an industrial plot may range only
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between 45% to 55% as contrasted from 65%
to 75% for residential plots.
19. If the acquired land is in a semi-developed
urban area, and not an undeveloped rural
area, then the deduction for development may
be as much less, that is, as little as 25% to
40%, as some basic infrastructure will already
be available. (Note: The percentages
mentioned above are tentative standards and
subject to proof to the contrary.
20. Therefore the deduction for the
"development factor" to be made with
reference to the price of a small plot in a
developed layout, to arrive at the cost of
undeveloped land, will be far more than the
deduction with reference to the price of a
small plot in an unauthorized private layout or
an industrial layout. It is also well known that
the development cost incurred by statutory
agencies is much higher than the cost
incurred by private developers, having regard
to higher overheads and expenditure.
21. Even among the layouts formed by DDA,
the percentage of land utilized for roads, civic
amenities, parks and playgrounds may vary
with reference to the nature of layout-
whether it is residential , residential- cum-
commercial or industrial; and even among
residential layouts, the percentage will differ
having regard to the size of the plots, width of
the roads, extent of community facilities,
parks and playgrounds provided.
22. Some of the layouts formed by the
statutory development authorities may have
large areas earmarked for water/sewage
treatment plants, water tanks, electrical
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substations, etc. in addition to the usual areas
earmarked for roads, drains, parks
playgrounds and community/civic amenities.
The purpose of the aforesaid examples is only
to show that the "deduction for development"
factor is a variable percentage and the range
of percentage itself being very wide from 20%
to 75%." Lal Chand's case deals with
acquisition of lands by DDA under the Rohini
Residential Housing Scheme where 40%
deduction was made towards the land area to
be utilized for laying down of roads, drains
etc. Further deduction of 35% of the value of
the developed plot towards cost of levelling
the land, cost of providing roads,
underground drainage, laying down water
lines, electricity lines was made."
11. The argument of the learned Advocate General that the
Reference Court has ignored the factors pertaining to the
characteristics of the land, namely, a large tract of land
admeasuring 1,22,718 sq.mtrs, being in a shape of strip,
having more depth rather than frontage and low-lying pale
into insignificance where the documentary as well as oral
evidence which are set out to consider the question of
possession indicate factors and amenities which exist on site
such as walking tract, climbing poles, football ground and
sports facilities etc.
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11.1 In fact, the Reference Court, if at all, not finding fault
with the award, has erred on the safer side in not blindly
following the yardstick of the comparable instance but
discounting and then adding for passage of time. What is,
therefore, evident from the analysis of the exercise
undertaken by the Reference Court for determining the value
of Rs.26,048/- per sq.mtrs, which we have in the earlier part
of this judgement explained does indicate that the parameters
set out for determination of the market value after deductions
appropriate considering the nature of land, its location etc.,
have been made and the base price of Rs.25,004.98 and
escalation amount for five months i.e. from 13.09.2006 to
09.02.2007 for arriving at a figure of Rs.26,048/- per sq.mtrs
is rightly considered.
12. We may, at this stage also consider the cross objections
filed by the claimants who had demanded Rs.65,000/- per
sq.mtrs and have lodged their objections. They are, therefore,
entitled to an additional amount of Rs.38,952/-. While
discussing the concept of average pricing in juxtaposition with
comparable instances of all 4 lands in question, what is
evident is that even while dealing in auction-sale comparable
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instances, the property is to fetch a maximum average of
Rs.43,000/- which is lower than the demand. Moreover, the
base average taking into all land deals comes to Rs.40,000/-
and considering the limitation of location etc., and after
appropriate deductions, the figure arrived at of Rs.26,048/-
cannot be faulted. The claim of Rs.65,000/- as compensation
or the claim for therefore an additional amount of Rs.38,952/-
is grossly exaggerated.
13. Whether the land Reference Court could have awarded
interest from 29.11.1991 prior to the issuance of the
Notification u/s. 4 of the Act, the other incidental question
directly connected would be whether the Reference Court in
absence of "possession" committed an error in taking the GRT
Judgement date as the base for awarding interest for the
period commencing from 29.11.1991. Could the Reference
Court arrive at a finding that the claimants were deprived of
their physical possession and the relevant date of 29.11.1991
was apt. Before we decide these issues, a brief revisit of the
history of litigation of the claimants is inevitable.
13.1 The subject land originally belonged to Late Shri
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Mahendrakumar Purshottambhai Desai. The new survey
numbers were Survey No. 371 and 372. From the impugned
judgement, what is culled out is that the ancestors of late
Mahendrabhai Desai were holding 138 vighas 19 vasa of land,
out of which, the following three parcels of land were
acquired in the following proceedings:
1. Land Acquisition case proceedings No.4196 for 23
acres and 12 gunthas.
2. Land Acquisition proceedings Case No. 4142 for 21
acres and 39 gunthas.
3. Land Acquisition proceedings Case No. 4153 for 3
acres and 36 gunthas.
13.2 So, in all 49 acres and 7 gunthas or 85 vighas and 1 vasa
was acquired by government and the subject land, balance,
according to the claimants is in possession of the government
too.
13.3 The chronology of dates and history would indicate the
litigation history.
23.09.1960 : One Jayant Patel made an application to
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the Collector, seeking the subject land for the purpose of
construction and development of hotel.
26.11.1962 : Late Mahendrabhai Desai on becoming
aware of this made an application to the Collector by
filing objections. The claim was adjudicated under
Sec.37(2) of the Bombay Land Revenue Code.
Reading of Sec.37(2) indicates that the adjudication of
the claim is with regard to property or any right by a person
against government. In other words, the dispute of possession
or claim was against the government since 1960.
19.02.1963 : The claim was rejected by the City
Survey Officer informing the claimants of the land being
in possesion of government.
12.08.1963 : The Collector assigned the inquiry to
Mamlatdar, Vadodara, which was then on 17.02.1964,
transferred to the Assistant Collector, Vadodara.
01.06.1964 : Order of Collector holding that
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Mahendrabhai was the owner.
09.09.1964 : On the order being taken in revision, the
order dated 01.06.1964 was set aside and the
proceedings were remanded to the Assistant Collector.
30.11.1966 : In remand proceedings, it was held that
Mahendrabhai could not prove his ownership.
09.08.1968 : When carried in Appeal, the Collector
dismissed the Appeal.
11.07.1969 : The GRT on a challenge remanded the
matter to be considered afresh.
07.04.1980 : On remand, the Deputy Collector,
Vadodara, held that the subject land was of the
ownership of State of Gujarat.
14.05.1983 : Appeal of Mahendrabhai was rejected.
29.11.1991 : The GRT allowed the appeal of the
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claimant Mahendrabhai and held that the subject land
was in possession and occupation and ownership of Shri
Mahendrabhai Desai.
13.4 In context of this, the State, through the Advocate
General, vehemently submitted by placing reliance on this
judgement of the Tribunal, pressed into service by way of
additional evidence that the possession was with the claimant
and therefore, award of interest / rent / damages prior to the
issuance of Sec.4 notification was clearly erroneous.
However, this assertion solely based on the observation of the
order of GRT dated 29.11.1991 has to be interpreted by
considering the surrounding factors which would help us to
consider and decide whether the Reference Court is right in
granting interest at the rate of 15% from 29.11.1991 i.e. prior
to notification under Sec.4 of the Act.
13.5 Apart from the litigation on the revenue side on the issue
of legal possession, after the order of the Gujarat Revenue
Tribunal when Mahendrabhai obtained permission to develop
the land, he was prevented to enter into the land. This
prompted him to file a Regular Civil Suit No. 1131 of 1992
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before the Civil Court, Vadodara, against the SRP seeking an
injunction not to restrain him from carrying out any
construction activity on the said land. Interim injunction was
granted. Aggrieved by the injunction, State filed Civil Appeal
No. 194 of 1992, wherein, a Panchnama was direcdted to be
drawn. The Panchnama is at Exh.134 in the reference
proceedings which indicate that the possession is with the
Government. The Panchnama is dated 06.09.1992.
Mahendrabhai, on being aggrieved by the order in Civil
Appeal No. 194 of 1992 preferred Civil Revision Application
No. 1341 of 1992.
13.6 The judgement and order dated 29.11.1991 of the
Gujarat Revenue Tribunal was challenged by the State
Government by filing a Special Civil Suit No. 776 of 1992,
where it was prayed that the judgement of the Gujarat
Revenue Tribunal be declared as illegal and without
jurisdiction. A further declaration was prayed to declare that
the suit property be of the ownership of the State
Government.
13.7 Special Civil Application No. 6428 of 1992 was also filed
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by the State challenging the order of the Gujarat Revenue
Tribunal which however was dismissed on the ground that
since the State has already preferred the aforesaid Special
Civil Suit No. 776 of 1992, the suit be decided expeditiously.
By a judgement and decree dated 21.03.1994, the learned 3 rd
Joint Civil Judge (S.D.), Vadodara dismissed the suit filed by
the State Government holding that the State Government has
failed to prove that it had possession of the suit land either on
the basis of ownership or on the basis of physical possession.
The decree of the trial court is also sought to be produced by
way of additional evidence before us.
13.8 First Appeal No. 969 of 1994 was preferred by the State
Government challenging the decree. This court by a CAV
judgement dated 07.05.2002 confirmed the decree of the trial
court. However, while dismissing the appeal, on a request
made on behalf of the State Government the status quo
granted by the first appellate court was extended for a period
of three months. On 08.08.2002, the State preferred an SLP
which was later numbered as Civil Appeal No. 7898-7900 of
2002 challenging the judgement of the High Court. On
10.04.2006, the Hon'ble Supreme Court dismissed the SLP.
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The plaint filed in the civil suit, the order dated 21.03.1994
passed by the civil court, the order of the Hon'ble Supreme
Court dated 10.04.2006 by which the appeal of the state was
dismissed are at exs.135, 138 & 139 respectively before the
reference court. The copy of the panchnama and the plaint are
at Ex. 134 & 135 respectively.
13.9 This in short is the litigation that went on between the
state and the ancestors of the claimant with regard to title,
ownership and possession of the subject lands. The learned
Advocate General by relying upon the observations made by
the Gujarat Revenue Tribunal in its order dated 29.11.1991
which is sought to be produced as additional evidence and the
extracts of the order in the First Appeal has submitted that
the case of the State Government that it had possession of the
subject land was neither proved in the civil suit filed by the
state challenging the order of the GRT after recording a
categorical finding that the stand of the state in the suit
cannot be believed. This finding was confirmed in first appeal
as well as in the civil appeal before the Apex Court as both
appeals confirmed the order of the trial court.
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14. On the other hand, Mr. Mihir Thakore, learned Senior
Advocate had relied upon the various documents produced
during the course of the proceedings in an inquiry under
section 37(2) of the Bombay Land Revenue Code as well as in
the civil suit at the hands of the state which attained finality
which indicate that atleast right from the year 1960, the
possession was with the state government.
15. We therefore have to adopt a course of checks and
balances in considering whether the reference court was right
in its perception of granting interest from 29.11.1991 till the
date of Section 4 notification i.e. upto 09.02.2007. Before
discussing the position of law on this issue, we may analyse
the documents produced before the reference court which
were part of the litigation between the parties. They are as
under:
(a) At Ex. 132 is a copy of the order dated 07.04.1980
passed by the learned Deputy Collector, Vadodara.
Reading the relevant paragraphs of the document would
indicate that the physical possession of the land was
with one Fatesinh Regiment.
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(b) At Ex. 133, is the order of the District Collector,
Vadodara dated 14.05.1983. Para 10 of the order
indicates that the subject land being Survey Nos. 371
and 372 were part of the acquisition carried out for the
Fatesinh Regiment and the possession was with the state
government.
(c) At Ex. 134, is the panchnama drawn on 06.09.1992
in Civil Appeal No. 194 of 1992. Briefly recollecting, it is
a panchnama drawn in the appeal filed by the State
against an order of injunction granted in favour of late
Mahendra Desai to the effect that he be not restrained
from entering the land. Reading of the panchnama, a
typed copy of which was produced and which Mr.
Thakore read out before us, clearly indicates that the
physical possession of the subject land was with the SRP
where different activities were carried out and that there
was a parade ground, a hockey ground and arms and
ammunition storage depot which clearly proved the
physical possession of the State.
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(d) Copy of the plaint of the State in Special Civil Suit
No. 776 of 1992 which challenged the order of GRT is at
Ex. 135. The pleadings of the plaint indicate that the
state has admitted the fact that the physical possession
of the land was with the state and it confirmed the
averments as in the panchnama.
(e) At Ex. 136 was a deposition of the Commandant
Mr. Malhar Rao who deposed on behalf of the State in
the civil suit on 15.01.1994. Reading of that deposition
indicates that the physical possession of the land was
with the State for last many years where different
activities were carried out. When the deposition is read,
there is a clear indication that the land in question since
1980 was being used by the State Reserve Police and
there is a Police Training School (PTS), a parade ground
where there are equipment for undertaking physical
training etc.
(f) At Ex. 180 is a letter dated 22.05.2002 of the
Assistant Government Pleader of the State addressed to
the Secretary, Legal Department in context of the First
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Appeal which was dismissed. The letter when read and
we quote, opines as under:
"I am of the opinion that as the interest of the State
regarding this case is considerable (i.e. the land is
valued at more than Rs.200 crores approximately)
and measures 53 vighas and 17 vasas i.e. 1,28,073
sq. mtrs in the prime area of Vadodara city and
also the fact that more than 70 years land is used
by the State Reserve Police (previously by the
Fatesinh Regiment during Maharja of Baroda's
time) this is a fit case for filing SLP before the
Supreme Court of India."
The letter therefore clearly indites the state
inasmuch as it is evident from the letter that the value of
the land is more than Rs.200 crores and the physical
possession is with the State.
(g) At Ex. 150 is the letter dated 28.05.2002 by the
Superintendent of Land Records to the Collector in
context of the First Appeal quoting the letter of the
Assistant Government Pleader reiterating what the letter
of 22.05.2002 suggests.
(h) At Ex. 181 is the memo dated 08.08.2002 of the
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civil appeal filed by the State before the Apex Court.
Ground 5(A) of the memo reads as under:
"(A) That from time immemorial, the suit land was
never in possession or ownership of respondent no.
1. As per the record, the land in question was in
possession of Fatehsinh Regiment and is now in the
onerous possession of government Police Training
School and SRP, Group-I. The possession of the
said suit land was never in the hands of respondent
or any other private party. Grounds 5(C) and (D)
read as under:
(C) That the High Court failed to appreciate
that the history of the case originates from
1912 and since then the land in dispute
admittedly remained in ownership and
possession of Gaekwad Regiment. Thereafter,
in the exclusive use and possession of SRP
Group and Government Training School.
(D) That the courts below have failed to
appreciate the oral evidence of several
witnesses of the appellants.... which clearly
show and prove beyond doubt that actual
possession of the suit land was never with the
respondents - defendants and was always
with the plaintiffs.
(i) At Ex. 183 is the letter of the Commandant to the
Collector dated 18.09.2006. The letter indicates that in
the subject land the training school is functional since
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1962 and therefore for its expansion there is a need for
atleast 40 to 50 acres of land and in all the need is for
135 acres of land. Therefore, there is an additional need
to acquire 85 acres. That a request be made for
acquisition of additional land by invoking urgency clause
as there are underground magazines and if private
parties are handed over possession, it would lead to
endangering security of the public as the establishment
will have to move out of the land.
15.1 From the aforesaid narrative in the documentary
evidences which are on record, it is clearly established that
the possession of the land prior to 29.11.1991 was with the
state and the land is being used as a parade ground, hockey
ground, basketball ground, shooting range, helipad for
landing of dignitaries etc.
15.2 The question of ownership in the chequered history of
the litigation was for the first time proved by virtue of the
order dated 29.11.1991 passed by the Gujarat Revenue
Tribunal which was confirmed right upto the Apex Court
which order is at Ex. 139. That the ownership of the
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ancestors of the claimants was established and legal
possession would therefore belong to them. However, on
record are the documents produced by the state itself which
admittedly prove the fact of the physical possession being
with the state government and therefore when for the first
time it was by the order of the GRT that ownership of the
claimants has been established, we see no error in granting
rent/interest with damages by the reference court in choosing
the date i.e. 29.11.1991 as the relevant date for the purpose
of granting such benefit.
16. The concept of physical possession and legal possession
has been discussed during the course of his submissions by
Mr. Thakore, learned Senior Counsel. A distinction is made
between de facto possession and dejure possession. A person
may have legal possession (de jure possession) but it may not
necessarily mean that he has physical possession (de facto
possession). In the case of Seksaria Cotton Mills Ltd.
(supra) paras 18-20 read as under:
"18. The only question therefore is whether there
was physical delivery to Dwarkadas Khetan. In one
sense, there can be no doubt about that. The goods
left the Mills' premises, the property in them had
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passed and when Dharsi Moolji refused to receive
them they were handed over to Dwarkadas Khetan
and not taken back to the Mills. Dwarkadas Khetan
asked the Mills what he should do with them, and
in the end he placed them in the Dady Seth
godown. In any ordinary understanding of the term
it would be clear that the goods had been
physically delivered to Dwarkadas Khetan. But the
learned High Court Judges do not appear to have
concerned themselves with the question of actual
physical possession because they say:-
"It would not be true to say, and the record amply
bears it out, that this godown belonged to
Dwarkadas Khetan. Even if Dwarkadas Khetan had
control over the godown, the control was exercised
on behalf of and as the agent of the Mills."
19. Therefore, the test of the sort of possession
which they had in mind was not the control over
the goods. But that has always been regarded as
one of the tests of physical or de facto possession.
Lancelot Hall distinguishing between possession in
law and possession in fact says that "possession in
the popular sense denotes a state of fact of
exclusive physical control". See his treatise on
Possessory Liens in English Law, page 2. See also
Pollock and Wright in their Essay on Possession in
the Common Law, page 119. Drawing the same
distinction they say that "physical possession" may
be generally described by stating that -
"when a person is in such a relation to a thing
that, so far as regards the thing, he can
assume, exercise or resume manual control of
it at pleasure, and so far as regards other
persons, the thing is under the protection of
his personal presence, or in or on a house or
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land occupied by him, or in some receptacle
belonging to him and under his control."
This would seem exactly to meet the case of
Dwarkadas Khetan.
20. Possession is an ambiguous term. The law
books divide its concept into two broad categories,
(1) physical possession or possession in fact and (2)
legal possession which need not coincide with
possession in fact. The offending form with which
we are concerned draws the same broad line. But
even on the factual side of the border niceties
creep in and so the possession of a servant is called
custody rather than possession. But what of an
agent ? If a man lives abroad over a period of years
and leaves his house and furniture in charge of an
agent who has the keys of the house and immedi-
ate access to and physical control over the
furniture, it would be difficult to say that the agent
was not in physical possession. It is true the legal
possession would continue to reside in the owner
but the actual physical possession would surely be
that of the agent. And so with a del credere agent,
because such a person is the agent of the seller
only up to a point. Beyond that he is either a
principal or an agent of the buyer. This distinction
was discussed by one of us in the Nagpur High
Court in Kalyanji Kuwarji v. Tirkaram Sheolal(1)
and was accepted by the Madras High Court
in Kandula -Radhakrishna Rao v. The Province of
Madras(2)."
16.1 So also in the case of Sadashiv Shyama Sawant
(supra) which deals with the concept of legal and physical
possession, paras 1 and 18 -23 read as under:
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"18. As noticed above, the views of the High
Courts differ about maintainability of suit for
possession by the landlord under Section 9 of 1877
Act in respect of property let out to the tenant who
has been dispossessed forcibly by a third party.
That language of Section 6(1) of the Act and first
paragraph of Section 9 of 1877 Act is exactly
identical admits of no doubt. The key words
in Section 6(1) are "dispossessed" and "he or any
person claiming through him". A person is said to
have been dispossessed when he has been deprived
of his possession; such deprivation may be of actual
possession or legal possession. Possession in law
follows right to possession. The right to possession,
though distinct from possession, is treated as
equivalent to possession itself for certain purposes.
19. In Halsbury's Laws of England (Fourth Edition,
page 617 - para 1111), `physical and legal
possession' is distinguished as under:
" `Possession' is a word of ambiguous
meaning, and its legal senses do not coincide
with the popular sense. In English law it may
be treated not merely as a physical condition
protected by ownership, but as a right in
itself. The word "possession" may mean
effective, physical or manual control, or
occupation, evidenced by some outward act,
sometimes called de facto possession or
detention as distinct from a legal right to
possession... ...
`Possession' may mean legal possession: that
possession which is recognized and protected
as such by law. The elements normally
characteristic of legal possession are an
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intention of possessing together with that
amount of occupation or control of the entire
subject matter of which it is practically
capable and which is sufficient for practical
purposes to exclude strangers from
interfering. Thus, legal possession is
ordinarily associated with de facto
possession; but legal possession may exist
without de facto possession, and de facto
possession is not always regarded as
possession in law. A person who, although
having no de facto possession, is deemed to
have possession in law is sometimes said to
have constructive possession."
20. Pollock and Wright in their classic work, `An
Essay on Possession in the Common Law' (1888
Edition, page 27) explained the nature of
possession, inter alia, as follows:
"Right to possess or to have legal possession.
This includes the right to physical possession.
It can exist apart from both physical and legal
possession; it is, for example, that which
remains to a rightful possessor immediately
after he has been wrongfully dispossessed. It
is a normal incident of ownership or property,
and the name of `property' is often given to
it....
Right to possess, when separated from
possession, is often called `constructive
possession.' The correct use of the term
would seem to be coextensive with and
limited to those cases where a person entitled
to possess is (or was) allowed the same
remedies as if he had really been in
possession....".
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21. A landlord by letting out the property to a
tenant does not lose possession as he continues to
retain the legal possession although actual
possession, user and control of that property is
with the tenant. By retaining legal possession or in
any case constructive possession, the landlord also
retains all his legal remedies. As a matter of law,
the dispossession of tenant by a third party is
dispossession of the landlord. The word
"dispossessed" in Section 6(1) must be read in this
context and not in light of the actual possession
alone. If a tenant is thrown out forcibly from the
tenanted premises by a trespasser, the landlord has
implied right of entry in order to recover
possession (for himself and his tenant). Similarly,
the expression "any person claiming through him"
would bring within its fold the landlord as he
continues in legal possession over the tenanted
property through his tenant.
22. As a matter of fact, on plain reading
of Section 6(1), it is clear that besides the person
who has been dispossessed, any person claiming
through him can also file a suit seeking recovery of
possession. Obviously, a landlord who holds the
possession through his tenant is competent to
maintain suit under Section 6 and recover
possession from a trespasser who has forcibly
dispossessed his tenant. A landlord when he lets
out his property to the tenant is not deprived of his
possession in the property in law. What is altered is
mode in which the landlord held his possession in
the property inasmuch as the tenant comes into
physical possession while the landlord retains
possession through his tenant.
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23. The view of Calcutta High Court that where
the tenant was forcibly ejected from the land by the
third party, it may reasonably be held that landlord
has also been dispossessed is the correct view. We
find ourselves in agreement with the view of
Bombay, Patna, Pepsu and Rajasthan High Courts
and hold, as it must be, that there is nothing
in Section 6 of the Act to bar a landlord from suing
a trespasser in possession even when, at the date
of dispossession, the property is in actual
occupation of a tenant entitled to possession. The
views expressed by Madras High Court in
Veeraswami Mudali1 and (Kanneganti)
Ramamanemma5 and by Nagpur Judicial
Commissioner in the case of Ramchandra do not
lay down the correct law."
16.2 From the documents on record, it is evident that it was
reasonable for the Reference Court to arrive at a finding of
fact that the physical possession of the subject land being
already with the State, the claimants were entitled to interest/
rent/damages prior to the date of section 4 notification.
17. Now whether such interest/rent/damages was legally
sustainable is a question that needs to be considered. Both
the learned counsels for the respective parties have cited
judgements on the question for and against. The decision in
the case of R.L. Jain (supra) was cited by the Advocate
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General to submit that the Reference Court committed a
grave error in awarding interest from 29.11.1991 as in law it
had no jurisdiction to do so. While referring to the decision in
the case of R.L. Jain (supra), the learned Advocate General
relied on paragraphs no. 12 -16 of the judgement. The same
read as under:
"12. The expression "the Collector shall pay the
amount awarded with interest thereon at the rate
of nine per centum per annum from the time of so
taking possession until it shall have been so paid or
deposited" should not be read in isolation divorced
from its context. The words "such possession" and
"so taking possession" are important and have to
be given meaning in the light of other provisions of
the Act. "Such compensation" would mean the
compensation determined in accordance with other
provisions of the Act, namely, Sections 11 and 15 of
the Act which by virtue of Section 23(1) mean
market value of the land on the date of notification
under Section 4(1) and other amounts like
statutory sum under sub-section (1-A) and solatium
under Sub-section (2) of Section 23. The heading of
Part II of the Act is Acquisition and there is a sub-
heading "Taking Possession" which
contains Sections 16 and 17 of the Act. The words
"so taking possession" would therefore mean taking
possession in accordance with Sections 16 or 17 of
the Act. These are the only two Sections in the Act
which specifically deal with the subject of taking
possession of the acquired land. Clearly the stage
for taking possession under the aforesaid
provisions would be reached only after publication
of the notification under Sections 4(1) and 9(1) of
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the Act. If possession is taken prior to the issuance
of the notification under Section 4(1) it would not
be in accordance with Sections 16 or 17 and will be
without any authority of law and consequently
cannot be recognised for the purposes of the Act.
For the parity of reasons the words "from the date
on which he took possession of the land" occurring
in Section 28 of the Act would also mean lawful
taking of possession in accordance with Sections 16
or 17 of the Act. The words "so taking possession"
can under no circumstances mean such
dispossession of the owner of the land which has
been done prior to publication of notification
under Section 4(1) of the Act which is de hors the
provisions of the Act.
13. In Union of India v. Budh Singh (supra) after
analysis of the provisions of the Act the Bench
arrived at the following conclusions:
"The parameter for initiation of the
proceedings is the publication of the
notification under Section 4(1) of the Act in
the State Gazette or in an appropriate case in
District Gazette as per the local amendments.
But the condition precedent is publication of
the notification under Section 4(1) in the
appropriate gazette. That would give
legitimacy to the State to take possession of
the land in accordance with the provisions of
the Act. Any possession otherwise would not
be considered to be possession taken under
the Act."
14. In Shri Vijay Cotton & Oil Mills (supra), the
precise question raised here namely whether in a
case where the possession is taken prior to the
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issuance of notification under Section 4(1) of the Act,
interest can be awarded in accordance with Sections
28 or 34 of the Act was not examined and the only
issue examined was whether in an appeal which
has been preferred by the State Government
challenging the quantum of compensation awarded
by the District Judge it is open to the High Court to
award interest to the claimant even though he had
not preferred any appeal or cross objection for the
said purpose. It is well settled that a decision as an
authority for what it actually decides. What is of
the essence in a decision is its ratio and not every
observation found therein nor what logically
follows from the various observations made
therein. (See Krishena Kumar v. Union of India,
AIR 1990 SC 1782, Municipal Corporation of Delhi
v. Gurnam Kaur, AIR 1989 SC 38 and M/s. Orient
Paper and Industries Ltd. & Anr. v. State of
Orissa AIR 1991 SC 672). Shri Vijay Cotton & Oil
Mills (supra) is therefore not an authority for the
proposition that where possession is taken before
issuance of notification under Section 4(1), interest
on the compensation amount could be awarded in
accordance with Section 34 of the Act with effect
from the date of taking of possession.
15. Similar view has been taken in a recent
decision by a Bench of two Judges in Smt. Lila
Ghosh vs. State of West Bengal J.T. 2003 (9) SC 23
and the reasons given there in para 16 of the
Report are being reproduced below:
"19. Even though the authority in Shree Vijay
Cotton & Oil Mills Ltd. appears to support the
claimants, it is to be seen that apart from
mentioning sections 28 and 34, no reasons
have been given to justify the award of
interest from a date prior to commencement
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of acquisition proceedings. A plain reading
of section 34 shows that interest is payable only
if the compensation which is payable, is not
paid or deposited before taking possession.
The question of payment or deposit of
compensation will not arise if there is no
acquisition proceeding. In case where
possession is taken prior to acquisition
proceedings a party may have a right to claim
compensation or interest. But such a claim
would not be either under section
34 or section 28. In our view interest under
these sections can only start running from the
date the compensation is payable. Normally
this would be from the date of the award. Of
course, there may be cases under section
17 where by invoking urgency clause
possession has been taken before the
acquisition proceedings are initiated. In such
cases, compensation, under the Land
Acquisition Act, would be payable by virtue of
the provisions of section 17. As in cases
under section 17 compensation is payable,
interest my run from the date possession was
taken"
16. In this connection it will be apposite to refer to
Sub-section (1A) of Section 23 of the Act which
enjoins payment of an amount calculated at the
rate of twelve per centum per annum on such
market value for the period commencing on and
from the date of the publication of the notification
under Section 4(1), in respect of such land to the
date of the award of the Collector or the date of
taking possession of the land, whichever is earlier.
There are two decisions of this Court, wherein
same controversy arose namely, whether the
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claimant would be entitled to additional sum at the
rate of twelve per centum on the market value
where possession has been taken over prior to
publication of notification under Section 4(1). In
Special Tehsildar (LA) PWD Schemes Vijaywada v.
M.A. Jabbar AIR 1995 SC 762 which has been
decided by a Bench of two Judges (K. Ramaswamy
and Mrs. Sujata V. Manohar, JJ) it was held that
claimant would not be entitled to this additional
sum for the period anterior to publication of
notification under Section 4(1). However
in Assistant Commissioner, Gadag, Sub- Division,
Gadag v. Mathapathi Basavanewwa & Ors. AIR
1995 SC 2492 also decided by a two-Judge Bench
(K. Ramaswamy and B.L. Hansaria, JJ) it was held
that even though notification under Section
4(1) was issued after taking possession of the
acquired land the owners would be entitled to
additional amount at twelve per cent per annum
from the date of taking possession though
notification under Section 4(1) was published later.
For the reasons already indicated, we are of the
opinion that the view taken in Special Tehsildar is
legally correct and the view to the contrary taken
in Assistant Commissioner, Gadag (supra), is not in
accordance with law and is hereby overruled."
18. The Apex Court by a three-judge bench judgement
considered the issue at hand and held that even if section 4
notification was issued after taking possession of the acquired
lands, the claimant would not be entitled to the additional sum
for the period anterior to the publication of section 4
notification. Reliance was also placed on a decision of the
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Apex Court in the case of Buddhsinh (supra) and in the case
of Chaudhary Mohanbhai Hirabhai (supra) to submit that it
was open for the claimant to seek damages through any other
civil remedy. We need to read the judgement of the larger
bench which is even relied upon by the counsel for the
respondent claimants. Mr. Thakore would press into service
paragraph no. 18 of the decision in the case of R.L. Jain
(supra) which reads as under:
"18. In a case where the land owner is
dispossessed prior to the issuance of preliminary
notification under Section 4(1) of the Act the
government merely takes possession of the land
but the title thereof continues to vest with the land
owner. It is fully open for the land owner to recover
the possession of his land by taking appropriate
legal proceedings. He is therefore only entitled to
get rent or damages for use and occupation for the
period the government retains possession of the
property. Where possession is taken prior to the
issuance of the preliminary notification, in our
opinion, it will be just and equitable that the
Collector may also determine the rent or damages
for use of the property to which the land owner is
entitled while determining the compensation
amount payable to the land owner for the
acquisition of the property. The provision
of Section 48 of the Act lend support to such a
course of action. For delayed payment of such
amount appropriate interest at prevailing bank rate
maybe awarded."
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18.1 Reading of the paragraph would indicate that the Apex
Court has observed that where possession is taken over prior
to issuance of a preliminary notification, it will be just and
equitable that the Collector may also determine rent or
damages of the property to which the land owner is entitled to
while determining compensation. Section 48 of the Land
Acquisition Act, 1894 supports this proposition. The decision
in the case of Madishetti Bala Ramul (supra) of which
paragraphs no. 11-20 read as under, indicates that the
decision of the larger bench was discussed and on facts the
court found that the claimant was entitled to additional sum
when the state continued to be in possession of the land
despite abatement of the proceedings under the Act.
"11. In R.L. Jain (D) By L.Rs. v. DDA and
Others [(2004) 4 SCC 79], a three-Judge Bench of
this Court, opined :
"11. In order to decide the question whether
the provisions of Section 34 of the Act
regarding payment of interest would be
applicable to a case where possession has
been taken over prior to issuance of
notification under Section 4(1) of the Act, it is
necessary to have a look at the scheme of
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the Land Acquisition Act. Acquisition means
taking not by voluntary agreement but by
authority of an Act of Parliament and by
virtue of the compulsory powers thereby
conferred. In case of acquisition the property
is taken by the State permanently and the
title to the property vests in the State"
12. Noticing the provisions of the Act it was held
that possession can be taken over only after an
award is made. It was observed :
"Section 17 is in the nature of an exception
to Section 16 and it provides that in cases of
urgency, whenever the appropriate
Government so directs, the Collector, though
no such award has been made, may, on the
expiration of fifteen days from the publication
of the notice mentioned in Section 9(1), take
possession of any land needed for a public
purpose and such land shall thereupon vest
absolutely in the Government, free from all
encumbrances. The urgency provision
contained in Section 17(1) can be invoked and
possession can be taken over only after
publication of notification under Section
9(1) which itself can be done after publication
of notification under Sections 4(1) and 6 of
the Act. Even here in view of sub-section (3-A)
the Collector has to tender 80 per cent of the
estimated amount of compensation to the
persons interested/entitled thereto before
taking over possession. The scheme of the Act
does not contemplate taking over of
possession prior to the issuance of notification
under Section 4(1) of the Act and if
possession is taken prior to the said
notification it will be dehors the Act. It is for
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this reason that both Sections
11(1) and 23(1) enjoin the determination of
the market value of the land on the date of
publication of notification under Section
4(1) of the Act for the purpose of determining
the amount of compensation to be awarded
for the land acquired under the Act"
It was furthermore held :
"12. The expression the Collector shall pay
the amount awarded with interest thereon at
the rate of nine per centum per annum from
the time of so taking possession until it shall
have been so paid or deposited should not be
read in isolation divorced from its context.
The words such compensation and so taking
possession are important and have to be
given meaning in the light of other provisions
of the Act. Such compensation would mean
the compensation determined in accordance
with other provisions of the Act,
namely, Sections 11 and 15 of the Act which by
virtue of Section 23(1) mean market value of
the land on the date of notification
under Section 4(1) and other amounts like
statutory sum under sub- section (1-A) and
solatium under sub-section (2) of Section 23.
The heading of Part II of the Act is Acquisition
and there is a sub-heading Taking Possession
which contains Sections 16 and 17 of the Act.
The words so taking possession would
therefore mean taking possession in
accordance with Section 16 or 17 of the Act.
These are the only two sections in the Act
which specifically deal with the subject of
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taking possession of the acquired land.
Clearly, the stage for taking possession under
the aforesaid provisions would be reached
only after publication of the notification
under Sections 4(1) and 9(1) of the Act. If
possession is taken prior to the issuance of
the notification under Section 4(1) it would
not be in accordance with Section 16 or 17
and will be without any authority of law and
consequently cannot be recognised for the
purposes of the Act. For parity of reasons the
words from the date on which he took
possession of the land occurring in Section
28 of the Act would also mean lawful taking of
possession in accordance with Section 16 or
17 of the Act. The words so taking possession
can under no circumstances mean such
dispossession of the owner of the land which
has been done prior to publication of
notification under Section 4(1) of the Act
which is dehors the provisions of the Act."
It was observed :
"18. In a case where the landowner is
dispossessed prior to the issuance of
preliminary notification under Section 4(1) of
the Act the Government merely takes
possession of the land but the title thereof
continues to vest with the landowner. It is
fully open for the landowner to recover the
possession of his land by taking appropriate
legal proceedings. He is therefore only
entitled to get rent or damages for use and
occupation for the period the Government
retains possession of the property. Where
possession is taken prior to the issuance of
the preliminary notification, in our opinion, it
will be just and equitable that the Collector
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may also determine the rent or damages for
use of the property to which the landowner is
entitled while determining the compensation
amount payable to the landowner for the
acquisition of the property. The provisions
of Section 48 of the Act lend support to such a
course of action. For delayed payment of such
amount appropriate interest at prevailing
bank rate may be awarded."
13. Yet again in Lila Ghosh (Smt.) (Dead) Through
L.R. Tapas Chandra Roy etc. v. State of West
Bengal etc. [(2004) 9 SCC 337], this Court held :
"19. Even though the authority in Shree Vijay
Cotton & Oil Mills Ltd. appears to support the
claimants, it is to be seen that apart from
mentioning Sections 28 and 34, no reasons
have been given to justify the award of
interest from a date prior to commencement
of acquisition proceedings. A plain reading
of Section 34 shows that interest is payable
only if the compensation, which is payable, is
not paid or deposited before taking
possession. The question of payment or
deposit of compensation will not arise if there
is no acquisition proceeding. In case where
possession is taken prior to acquisition
proceedings a party may have a right to claim
compensation or interest. But such a claim
would not be either under Section
34 or Section 28. In our view interest under
these Sections can only start running from
the date the compensation is payable.
Normally this would be from the date of the
Award. Of course, there may be cases
under Section 17 where by invoking urgency
clause possession has bean taken before the
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acquisition proceedings are initiated. In such
cases, compensation, under the Land
Acquisition Act, would be payable by virtue of
the provisions of Section 17. As in cases
under Section 17 compensation is payable
interest may run from the date possession
was taken. However, this case does not fall
into this category."
14. In this case, however, the appellants herein
were dispossessed pursuant to a notification which
for one reason or other could not be given effect to.
Another notification under Section 4 of the Act had
to be issued. The said notification was held to be
not invalid. The State put forward the claim in
respect of a portion of a property which it could not
do. Possession must be obtained under a valid
notification.
15. The Land Acquisition Officer took possession of
the land on the basis of a notification which did not
survive. Respondent could not have continued to
hold possession of land despite abatement of the
proceeding under the 1984 Act. It was directed to
be decided by the High Court upon a reference
made by the Collector in terms of Section 30 of the
Act. The State, therefore, itself realized that its
stand in regard to the ownership of 3 acres and 5
guntas of land was not correct. It, therefore, had to
issue another notification having regard to the
provisions contained in the Land Acquisition
(Amendment) Act, 1984. Whereas the High Court
may be correct in interpreting the question of law
in view of the decision of this Court, but the same
would not mean that Appellants would not get
anything for being remaining out of possession
from 1979 to 1991.
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16. Mrs. Amareshwari relied upon Section 25 of the
Act which is as under :
"25. Amount of compensation awarded by
court not to be lower than the amount
awarded by the Collector.The amount of
compensation awarded by the court shall not
be less than the amount awarded by the
Collector under section 11."
17. Section 25 of the Act merely prohibits that total
amount of the award granted by the Collector
cannot be reduced. Section 25 which has
undergone an amendment in the year 1984, thus,
merely lays down that the amount of compensation
awarded by the reference court shall not be less
than the amount awarded by the Collector, and in
no circumstances the amount awarded by the
Collector can be reduced. What is an award is a
total sum and not the ingredients contained
therein. An award made by the Collector is in the
form of an offer. It is in that sense only that the
amount contained therein cannot be reduced.
18. It is not the case of the appellants that the total
amount of compensation stands reduced. If it had
not been, we fail to understand as to how Section
25 will have any application in the instant case.
Furthermore, Section 25 being a substantive
provision will have no retrospective effect. The
original award was passed on 08.02.1981, Section
25, as it stands now, may, therefore, not have any
application in the instant case.
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19. In Land Acquisition Officer-cum-DSWO, A.P. v.
B.V. Reddy and Sons [(2002) 3 SCC 463], this
Court opined that Section 25 being not a
procedural provision will have no retrospective
effect, holding :
"6. Coming to the second question, it is a
well- settled principle of construction that a
substantive provision cannot be retrospective
in nature unless the provision itself indicates
the same. The amended provision of Section
25 nowhere indicates that the same would
have any retrospective effect. Consequently,
therefore, it would apply to all acquisitions
made subsequent to 24-9-1984, the date on
which Act 68 of 1984 came into force. The
Land Acquisition (Amendment) Bill of 1982
was introduced in Parliament on 30-4-1982
and came into operation with effect from 24-
9-1984"
20. In the peculiar facts and circumstances of the
case, although the proper course for us would have
to remand the matter back to the Collector to
determine the amount of compensation to which
the Appellants would be entitled for being
remained out of possession since 1979, we are of
the opinion that the interest of justice would be
met if this appeal is disposed of with a direction
that additional interest @ 15% per annum on the
amount awarded in terms of award dated
02.01.1999 for the period 16.03.1979 till
22.12.1991, should be granted, which, in our
opinion, would meet the ends of justice."
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18.2 In the case of Tahera Khotoon (supra) reading paras 9-
15 which are reproduced as under, it is borne out that finding
that the possession of the property was already with the
Municipal Corporation prior to the date of notification i.e.
from 01.01.1938 till 10.01.1996, the Apex Court directed the
State Government to pay rent/damages at the rate of 15% on
the compensation awarded. This court in First Appeal No.
1213 of 2016 considering the decisions of the Apex Court in
paragraphs no. 3.7-6, held that a direction is necessary to
award additional interest by way of damages.
"9.Now the remains to be considered and decided
by us is whether the appellants are entitled for rent
or damages from the date they were dispossessed
till the date of preliminary Notification.
10.In support of the assertion, Shri. Shetty, learned
Senior Counsel for the appellants has brought to
out notice the observation made rendered by this
Court in the case of R.L. Jain (D) by LRs. V. DDA &
Others, 2004 (4) ALD 25 (SC)=(2004) 4 SCC 79
and also in the case of Madishetti Bala Ramul (D)
by LRs. V. Land Acquisition Officer, (2007) 9 SCC
11. In the first case, this court after considering the
submission that is canvassed by the land loser/(s)
though it fit to remand the matter to the LAO to
determine the rent or damages for use of the
property by the land owner/(s) are entitled while
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determining the compensation amount payable to
the land owner/(S) acquisition of the property.
12. In the latter decision of the court instead of
remanding the matter to the LAO thought it fit to
award 15% interest to the land loser/(s) from the
date they were dispossessed till the date of
preliminary Notification.
13.Keeping in view the peculiar facts and
circumstances of the case, we are of the opinion
that the exercise that has been done by this Court
in the case of Madishetti Bala Ramul (D) by LRs's
case (supra), requires to be adopted.
14. In the instant case, it is not in dispute nor is
can be disputed by either side that the property in
dispute was in possession of the Warangal
Municipal Committee. In fact the said Municipal
Committee had developed the aforesaid land in to a
park. Since there was a dispute among the owners
of the land with the Municipal Committee, the
Municipal Committee had sought the assistance of
the State Government to acquire the property and
to hand over the same to the Municipal Committee
for use and development.
15.It is also not in dispute that the Municipal
Committee was in possession of the aforesaid
property right from 01.01.1938 till the notification
was issued by the State Government on
10.01.1996. Keeping in view the observations made
by this Court in Madishetti Bala Ramul, we direct,
the State Government to pay rents/damages at the
rate of 15% on the compensation awarded from the
date the land owners were dispossessed, namely,
from 01.01.1938 till the date of issuance of the
preliminary notification i.e. 10.01.1996. The
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calculations shall be made by the State
Government as expeditiously as possible and
disburse the aforesaid amount to the appellants as
early as possible, at any rate, within three months
from the date of receipt of copy of this order."
18.3 This was so done in light of the decision of the Apex
Court in the case of Balwan Singh (supra) which noticing the
decisions on the issue in paras 2-4 held as under:
"2. Noticing the above position, this Court in the
case of Madishetti Bala Ramul (dead) by Lrs. Vs.
Land Acquisition Officer reported in (2007) 9 SCC
650, took the view that it may not be proper to
remand the matter to the Collector to determine
the amount of compensation to which the
appellants therein would be entitled for the period
during which they remained out of possession and
hence, in the interest of justice, this Court directed
that additional interest at the rate of 15% per
annum on the amount awarded by the Land
Acquisition Collector, shall be paid for the period
between the date of dis-possession and the date of
Notification under Section 4(1) of the Act.
3. The said view was followed by this Court in the
case of Tahera Khatoon & Ors. Vs. Revenue
Divisional Officer/Land Acquisition Officer & Ors.
Reported in (2014) 13 SCC 613.
4. Following the above view taken by this Court,
these appeals are disposed of directing the
respondents to award additional interest by way of
damages, at the rate of 15% per annum for the
period between 1.7.1984, the date when the
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appellants were dis-possessed till 2.9.1993, the
date of Notification under Section 4(1) of the Act."
18.4 This case law therefore indicates that though the
decision of the Apex Court in the case of R.L. Jain (supra)
was pressed into service by the State, the concept of awarding
interest/rent and or damages at the rate of 15% from the date
of physical possession is not foreign and a land owner is
entitled to get rent or damages for use and occupation of the
property. Records produced before the Reference Court
though indicate that the State Government was in possession
of the land even prior to 1991, the Reference Court has only
granted rent/damages at the rate of 15% from 29.11.1991. In
light of this therefore, the award of such interest at the rate of
15% prior to the date of the publication of the notification in
light of a categorical finding based on the assessment of
documentary evidence including the additional evidence
produced on record having been proved, no fault can be found
with the directions issued by the Reference Court on this
aspect too.
19. The other ground on which the award is challenged is
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that in absence of any provision interest at the rate of 15%
per annum is highly excessive. Reliance was placed on a
Government Resolution dated 18.06.1986 which is sought to
be produced by way of additional evidence to submit that at
best the rate ought to have been at 9% per annum. As per the
State, if the interest is calculated at 9% per annum, the same
will come to Rs.172,30,60,508/- and not Rs.729,20,94,260.41
for the period from 29.11.1991 to 09.02.2007 with the result
that the final amount will come to Rs.659,55,97,916/- instead
of the awarded amount of Rs.1,872,41,64,438.73.
20. As far as reliance placed on Government Resolution
dated 18.06.1986 is concerned, apparently reading of the
resolution indicates that it deals with a situation where
acquisition is by consent. The resolution therefore clearly will
not apply in the facts of this case. Even, with regard to the
grant of interest, as rightly submitted by Mr. Thakore, learned
Senior Advocate with Mr. P.K Jani, learned Senior Advocate,
the framework of interest is well set out under the provisions
of Sections 23, 28 and 34 of the Act. For this purpose, the
decision of Apex Court in the case of Sunder (supra) is
relevant. Paragraph no. 1, 14, 15, 20-23, 26 & 27 read as
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under:
"1. The question referred to this Bench of five
Judges is a simple one. Is the State liable to pay
interest on the amount envisaged under Section
23(2) of the Land Acquisition Act, 1894 (for short
'the Act')? The sum contemplated in the aforesaid
sub-section can conveniently be called "solatium"
as that expression has been used plentifully in
almost all land acquisition proceedings in India.
The reference of the aforesaid question to this
larger Bench was necessitated on account of a
seeming conflict as between the decision of a three
Judge Bench of this Court in Union of India vs. Shri
Ram Mehar and ors. {1973(1) SCC 109} on the one
hand and a few later decisions of co-equal Benches
of this Court on the other hand.
14. Question of payment of interest would arise
only when the compensation is not paid or
deposited on or before the date of taking
possession of the land. It is inequitable that the
person who is deprived of the possession of the
land, on account of acquisition proceedings is not
given the amount which law demands to be paid to
him, any delay thereafter would only be to his
detriment. There must be a provision to buffet such
iniquity. It is for the purpose of affording relief to
the person who is entitled to such compensation
when the payment of his money is delayed that the
provision is made in Section 34 of the Act. That
section is extracted below:
"34. Payment of Interest.- When the
amount of such compensation is not paid or
deposited on or before taking possession of
the land, the Collector shall pay the amount
awarded with interest thereon at the rate of
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nine per centum per annum from the time of
so taking possession until it shall have been
so paid or deposited.
Provided that if such compensation or
any part thereof is not paid or deposited
within a period of one year from the date on
which possession is taken, interest at the rate
of fifteen per centum per annum shall be
payable from the date of expiry of the said
period of one year on the amount of
compensation or part thereof which has not
been paid or deposited before the date of
such expiry."
15. When the court is of opinion that Collector
should have awarded a larger sum as compensation
the court has to direct the Collector to pay interest
on such excess amount. The rate of interest is on a
par with the rate indicated in Section 34. This is so
provided in Section 28 of the Act which is extracted
below:
"28. If the sum which, in the opinion of
the court, the Collector ought to have
awarded as compensation is in excess of the
sum which the Collector did award as
compensation, the award of the Court may
direct that the Collector shall pay interest on
such excess at the rate of nine per centum
per annum from the date on which he took
possession of the land to the date of payment
of such excess into court.
Provided that the award of the Court
may also direct that where such excess or any
part thereof is paid into Court after the date
of expiry of a period of one year from the date
on which possession is taken, interest at the
rate of fifteen per centum per annum shall be
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payable from the date of expiry of the said
period of one year on the amount of such
excess or part thereof which has not been
paid into Court before the date of such
expiry."
20. We may now see whether exclusion of the
factor "any disinclination of the person interested
to part with the land acquired" from being
considered as part of the compensation indicated
in Section 24 of the Act would be of any aid for
excluding solatium from the purview of interest
accrual process. No doubt what is intended
under Section 23(2) is additional to the market value
of the land and "in consideration of the compulsory
nature of the acquisition". But it cannot be equated
with any damage caused on account of "any
disinclination of the person to part with the land
acquired."
21. It is apposite in this context to point out that
during the enquiry contemplated under Section 11
of the Act the Collector has to consider the
objections which any person interested has stated
pursuant to the notice given to him. It may be
possible that a person so interested would advance
objections for highlighting their disinclination to
part with the land acquired on account of a variety
of grounds, such as sentimental or religious or
psychological or traditional etc. Section
24 emphasises that no amount on account of any
disinclination of the person interested to part with
the land shall be granted as compensation. That
aspect is qualitatively different from the solatium
which the legislature wanted to provide "in
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consideration of the compulsory nature of the
acquisition".
22. Compulsory nature of acquisition is to be
distinguished from voluntary sale or transfer. In
the latter, the landowner has the widest advantage
in finding out a would-be buyer and in negotiating
with him regarding the sale price. Even in such
negotiations or haggling normally no landowner
would bargain for any amount in consideration of
his disinclination to part with the land. The mere
fact that he is negotiating for sale of the land would
show that he is willing to part with the land. The
owner is free to settle terms of transfer and choose
the buyer as also to appoint the point of time when
he would be receiving consideration and parting
with his title and possession over the land. But in
the compulsory acquisition the landowner is
deprived of the right and opportunity to negotiate
and bargain for the sale price. It depends on what
the Collector or the Court fixes as per the
provisions of the Act. The solatium envisaged in
sub-section (2) "in consideration of the compulsory
nature of the acquisition" is thus not the same as
damages on account of the disinclination to part
with the land acquired.
23. In deciding the question as to what amount
would bear interest under Section 34 of the Act a
peep into Section 31(1) of the Act would be
advantageous. That sub-section says:
"On making an award under section 11, the
Collector shall tender payment of the
compensation awarded by him to the persons
interested entitled thereto according to the
award, and shall pay it to them unless
prevented by some one or more of the
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contingencies mentioned in the next sub-
section."
The remaining sub-sections in that provision only
deal with the contingencies in which the Collector
has to deposit the amount instead of paying it to
the party concerned. It is the legal obligation of the
Collector to pay "the compensation awarded by
him" to the party entitled thereto. We make it clear
that the compensation awarded would include not
only the total sum arrived at as per sub- section (1)
of Section 23 but the remaining sub-sections
thereof as well. It is thus clear from Section 34 that
the expression "awarded amount" would mean the
amount of compensation worked out in accordance
with the provisions contained in Section 23,
including all the sub-sections thereof.
26. We think it useful to quote the reasoning
advanced by Chief Justice S.S. Sandhawalia of the
Division Bench of the Punjab and Haryana High
Court in State of Haryana vs. Smt. Kailashwati and
ors. (supra).
"Once it is held as it inevitably must be that
the solatium provided for under Section
23(2) of the Act forms an integral and
statutory part of the compensation awarded
to a landowner, then from the plain terms
of section 28 of the act, it would be evident
that the interest is payable on the
compensation awarded and not merely on the
market value of the land. Indeed the language
of S.28 does not even remotely refer to
market value alone and in terms talks of
compensation or the sum equivalent thereto.
The interest awardable under Section
28 therefore would include within its ambit
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both the market value and the statutory
solatium. It would be thus evident that the
provisions of Section 28 in terms warrant and
authorise the grant of interest on solatium as
well."
27. In our view the aforesaid statement of law is
in accord with the sound principle of
interpretation. Hence the person entitled to the
compensation awarded is also entitled to get
interest on the aggregate amount including
solatium. The reference is answered accordingly."
21. Discussing the provisions of Sections 28 and 34 of the
Act, the Apex Court has considered the decision of a Division
Bench of Punjab & Haryana High Court where it was held that
'once it is held as it inevitably must be that the solatium
provided under Section 23(2) of the Act forms an integral and
statutory part of the compensation awarded to a land owner,
then from the plain terms of Section 28 of the Act, it would be
evident that the interest is payable on the compensation
awarded and not merely on the market value of the land.
Indeed, the language of Section 28 does not even remotely
refer to the market value alone and in terms talks of
compensation of the sum equivalent thereto. The interest
awardable under Section 28 therefore would include within its
ambit, both the market value and the statutory solatium.' The
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Apex Court therefore held that a claimant is entitled to
compensation awarded and is also entitled to get interest on
the aggregate amount including solatium.
22. In the case of Gurpreet Singh (supra), the Apex Court
has held as under:
"28. Going by this principle and for the moment
keeping out the scheme of the Land Acquisition
Act, it appears to us that on payment or deposit of
the amount awarded by the Collector in terms
of Section 11 read with Section 31 of the Act, the
claimant cannot thereafter claim any interest on
that part of the compensation paid to him or
deposited for the payment to him once notice of
deposit is given to him. Thereafter, when the
reference court enhances the compensation with
consequential enhancement in solatium and
interest under Section 23(1A) of the Act and
further awards interest on the enhanced
compensation in terms of Section 28 of the Act, the
claimant/decree holder can seek an appropriation
of the amounts deposited pursuant to that award
decree, only towards the enhanced amount so
awarded by the reference court. While making the
appropriation, he can apply the amount deposited,
first towards the satisfaction of his claim towards
interest on the enhanced amount, the costs, if any,
awarded and the balance towards the land value,
solatium and the payment under Sections 23 (1A)
of the Act and if, there is a shortfall, claim that part
of the compensation with interest thereon as
provided in Section 28 of the Act and as covered by
the award decree. Once the sum enhanced by the
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reference court, along with the interest is
deposited by the State, there will be no occasion
for the claimant/awardee to seek a reopening of the
amount awarded by the Collector, substituted by
the amount awarded by the reference court and
seek to have a re- appropriation of the amount
towards what is due. Same would be the position in
a case where the amount awarded by the reference
court, including the interest is deposited, but the
amount is further enhanced in appeal by the High
Court. Again, the same principle would apply. The
principle would continue to apply when the
Supreme Court awards further enhancement in a
further appeal to that Court. But if after the award
by the reference court the amount is not deposited
by the State, interest would run on the
compensation in terms of Section 28 of the Act on
that amount as provided in Section 28. The same
would be the position regarding the enhancement
given in appeal by the High Court and in the
enhancement given in appeal by the Supreme
Court. The mandate of Section 34 and Section
28 that interest would run from the date the
Collector takes possession till the particular
amount is deposited as provided in those sections
ensures that the claimant is recompensed
adequately. Section 28 ensures such recompense at
each stage of enhancement of compensation.
29. Let us now consider the scheme of the Land
Acquisition Act, 1894 as amended by the Land
Acquisition (Amendment) Act 68 of 1984. After the
publication of the preliminary notification
under Section 4 of the Act and after hearing of
objections, a declaration has to be made
under Section 6 of the Act. The Collector is then to
take the order for acquisition from the Appropriate
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Government or the officer authorized in that behalf
by the Government. After completing the
formalities contemplated and the enquiry made in
terms of Section 11 of the Act, the Collector has to
make an award indicating the true area of the land,
the compensation which in his opinion should be
allowed for the land and the apportionment of the
compensation among the persons known or
believed to be interested in the land. In making the
award, the Collector shall be guided by Sections
23 and 24 dealing with matters to be considered in
determining the compensation and matters to be
excluded in determining the compensation as
enjoined by Section 15 of the Act. Under Section
12 of the Act, the award becomes final as between
the Collector and the persons interested and the
Collector is to give notice of his award to persons
interested. On making the award, the Collector
may take possession of the land in terms of Section
16 of the Act. Under Section 31, on making an
award under Section 11, the Collector shall tender
payment of the compensation awarded by him to
the persons interested entitled thereto according to
the award, and shall pay it to them unless
prevented by the contingencies referred to
in Section 31 itself. Under Section 34 of the Act,
when the amount of compensation awarded is not
paid or deposited on or before taking possession of
the land, the Collector shall pay the amount
awarded with interest thereon at the rate of nine
per cent per annum from the time of taking
possession till it shall have been paid or deposited.
But if the compensation or any part thereof is not
paid within a period of one year from the date on
which possession is taken, interest is payable at the
rate of fifteen per cent per annum from the date of
expiry of the said period of one year on the amount
of compensation or part thereof which has not been
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paid or deposited before the date of such expiry. It
is relevant to notice that on payment of the
amounts thus due, the award made by the Collector
stands satisfied.
30. A person interested, who is not satisfied with
the amount of compensation awarded by the
Collector is entitled to receive the amount under
protest and could apply to the Collector requiring
him to refer the matter to the Court in terms
of Section 18 of the Act. The Collector is then to
make a statement to the Court and the Court is
entitled to fix the compensation subject to Section
25 of the Act which provides that the amount of
compensation awarded by the Court shall not be
less than the amount awarded by the Collector
under Section 11 of the Act. In fixing the
compensation, the Court shall have regard to the
matters referred to in Sections 23 and 24 of the
Act. Under Section 26, every award shall be
deemed to be a decree within the meaning of
Section 2(2) of the Code of Civil Procedure and
every reasoned award shall be deemed to be a
judgment as defined in Section 2(9) of the Code of
Civil Procedure. Under Section 27 of the Act, every
award made by the Court shall also contain
directions regarding the costs incurred in the
proceedings in Court, the costs of the claimant
found entitled to enhancement, normally to be
borne by the Collector. Under Section 28 of the
Act, the Court which has awarded compensation in
excess of the sum which the Collector did award as
compensation, may direct that the Collector shall
pay interest on such excess at the rate of nine per
cent per annum from the date on which he took
possession of the land to the date of payment of
such excess into Court. The proviso enjoins the
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Court to direct that where such excess or any part
thereof is paid into Court after the expiry of a
period of one year from the date on which
possession is taken, interest at the rate of fifteen
per cent per annum, shall be payable from the date
of expiry of the said period of one year on the
amount of such excess or part thereof which has
not been paid into Court after the date of such
expiry. Two aspects require to be noted. One is that
the interest is payable only on the excess amount of
compensation awarded by the reference court and
the second is that interest on the enhanced amount
awarded is payable from the date of taking
possession at the rate of 9% per annum for the first
year after taking possession and thereafter at 15%
per annum till the deposit of the excess is made.
This clearly indicates that there is no scope for the
re-opening of the appropriation already made
pursuant to the award. The other significant factor
is that the award should specify the amount
awarded as market value of the land separately and
the other amount, if any, awarded under other
heads of Section 23(1).
31. Under Section 54 of the Act, a person, still not
satisfied with the decree of enhancement in his
favour on the reference under Section 18 of the
Act, has a right to file an appeal to the High Court
and from the decision of the High Court in such an
appeal, an appeal to the Supreme Court. If one
were to go by the definition of 'Court' occurring
in Section 3(d) of the Act, Section 28 providing for
payment of interest on excess compensation may
not apply to an appeal under Section 54 of the Act
on the excess, if any awarded by the High Court or
in subsequent appeal by the Supreme Court. But
when in an appeal under Section 54 of the Act, the
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appellate court further enhances the compensation,
it awards the compensation that the reference
court ought to have awarded and so
understood, Section 28 of the Act may be applied at
the appellate stage. If the expression 'Court' used
in Section 28 of the Act is understood in the
generic sense, (on the basis that the context
otherwise requires it), the result would be the
same. The other provision relevant to be noted
is Section 53 of the Act which makes the Code of
Civil Procedure applicable to all proceedings
before the Court under the Act save in so far as the
provisions of the Code are found to be inconsistent
with anything contained in the Act. Section 54 also
does not keep out the Code, but makes the appeal
under it subject to the provisions of the Code
applicable to appeals from original decrees.
32. In the scheme of the Act, it is seen that the
award of compensation is at different stages. The
first stage occurs when the award is passed.
Obviously, the award takes in all the amounts
contemplated by Section 23(1) of the Act, Section
23(1A) of the Act, Section 23(2) of the Act and the
interest contemplated by Section 34 of the Act. The
whole of that amount is paid or deposited by the
Collector in terms of Section 31 of the Act. At this
stage, no shortfall in deposit is contemplated, since
the Collector has to pay or deposit the amount
awarded by him. If a shortfall is pointed out, it may
have to be made up at that stage and the principle
of appropriation may apply, though it is difficult to
contemplate a partial deposit at that stage. On the
deposit by the Collector under Section 31 of the
Act, the first stage comes to an end subject to the
right of the claimant to notice of the deposit and
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withdrawal or acceptance of the amount with or
without protest.
33. The second stage occurs on a reference
under Section 18 of the Act. When the reference
Court awards enhanced compensation, it has
necessarily to take note of the enhanced amounts
payable under Section 23(1), Section
23(1A), Section 23(2) and interest on the enhanced
amount as provided in Section 28 of the Act and
costs in terms of Section 27. The Collector has the
duty to deposit these amounts pursuant to the
deemed decree thus passed. This has nothing to do
with the earlier deposit made or to be made under
and after the award. If the deposit made, falls short
of the enhancement decreed, there can arise the
question of appropriation at that stage, in relation
to the amount enhanced on the reference.
36. Can a claimant or decree holder who has
received the entire amount awarded by the
reference court or who had notice of the deposit of
the entire amount so awarded, claim interest on
the amount he has already received merely
because the appellate court has enhanced the
compensation and has made payable additional
compensation? We have already referred to Order
XXI and Order XXIV of the Code to point out that
such a blanket re-opening of the transaction is not
warranted even in respect of a money
decree. Section 28 of the Act indicates that the
award of interest is confined to the excess
compensation awarded and it is to be paid from the
date of dispossession. This is in consonance with
the position that a fresh re-appropriation is not
contemplated or warranted by the scheme of the
Act. But if there is any shortfall at any stage, the
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claimant or decree holder can seek to apply the
rule of appropriation in respect of that amount,
first towards interest and costs and then towards
the principal, unless the decree otherwise directs.
37. In Sunder Vs. Union of India [2001 Suppl. (3)
S.C.R. 176], this Court posed the question, what is
meant by "the compensation" awarded. The Court
concluded,
"We make it clear that the compensation
awarded would include not only the total sum
arrived at as per sub- Section (1) of Section
23 but the remaining sub-Sections thereof as
well. It is thus clear from Section 34 that the
expression "awarded amount" would mean
the amount of compensation worked out in
accordance with the provisions contained
in Section 23, including all the sub-Sections
thereof."
38. This shows that there is no distinction made
between land value and solatium on the one hand
and the interest awardable on the other,
under Section 23(1A) of the Act. It is on this sum
that the interest under Section 34 of the Act is
awarded and if it were a reference, awarded
under Section 28 of the Act, in addition to costs, if
any. Thus, the award by the Collector and the
deemed decree passed on reference contain the
components of compensation and interest in the
first and interest and costs in the second.
44. Section 34 of the Act fastens liability on the
Collector to pay interest on the amount of
compensation determined under Section 23(1) with
interest from the date of taking possession till date
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of payment or deposit into the court to which
reference under Section 18 would be made. On
determination of the excess amount of
compensation, Section 28 empowers the court, if it
was enhancing the compensation awarded by the
Collector, to award interest on the sum in excess of
what the Collector had awarded as compensation.
The award of the court may also direct the
Collector to pay interest on such excess or part
thereof from the date on which he took possession
of the land to the date of payment of such excess
into court at the rates specified thereunder. The
Court Stated:
"In other words, Sections 34 and 28 fasten
the liability on the State to pay interest on the
amount of compensation or on excess
compensation under Section 28 from the date
of the award and decree but the liability to
pay interest on the excess amount of
compensation determined by the Court
relates back to the date of taking possession
of the land to the date of the payment of such
excess into the court."
45. The Court concluded:
"12. It is clear from the scheme of the Act
and the express language used in Sections
23(1) and (2), 34 and 28 and now Section
23(1-A) of the Act that each component is a
distinct and separate one. When
compensation is determined under Section
23(1), its quantification, though made at
different levels, the liability to pay interest
thereon arises from the date on which the
quantification was so made but, as stated
earlier, it relates back to the date of taking
possession of the land till the date of deposit
of interest on such excess compensation into
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the court The liability to pay interest is only
on the excess amount of compensation
determined under Section 23(1) and not on
the amount already determined by the Land
Acquisition Officer under Section11 and paid
to the party or deposited into the Court or
determined under Section 26 or Section
54 and deposited into the court or on solatium
under Section 23(2) and additional amount
under Section 23(1-A).""
23. For the reasons therefore, we hold that the amount
awarded which includes interest at the rate of 15% per annum
so computed is just and proper and in accordance with the
framework provided so under the Act.
24. We note that while discussing the evidence on record,
we have considered the additional evidence brought by the
appellant which otherwise was not forming part of the
Reference Court. Documents from A-2 to A-9 are documents
which are public documents and which even otherwise form
part of or were referred to in the documentary evidence which
was otherwise on record. Order 41 Rule 27 of the Code of
Civil Procedure, 1908 which deals with production of
additional evidence in the appellate court indicates that a
party to an appeal shall not be entitled to produce additional
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evidence, whether oral or documentary in the appellate court
but if the court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been admitted
or the party seeking to produce additional evidence
establishes that notwithstanding the exercise of due diligence,
such evidence was not within his knowledge or the appellate
court requires any document to be produced to enable it to
pronounce its judgement or for any other substantial cause,
the appellate court may allow such evidence.
25. As far as the order dated 21.03.1994 passed by the Civil
Court in the Special Civil Suit No. 776 of 1992 is concerned,
the plaint is already on record vide Ex. 135 and therefore in
appreciating the question of possession, this court would be
better equipped if the original order in the civil proceedings
and the additional evidence wherein the order of the Tribunal
in the very suit was under challenge are permitted to be
considered by this court. As far as Section 4 notification, the
valuation report, the resolutions dated 18.06.1986 and
circular dated 23.09.2002 are concerned, we note that no
prejudice will be caused if the Section 4 notification is
permitted to be adduced as additional evidence. As far as the
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circular dated 23.09.2002, the valuation report dated
07.09.2006 and 30.03.2007 and the minutes of the meeting
dated 09.04.2007 are directly or indirectly being referred to
and relied upon in the relevant exhibits produced before this
court. Therefore, in light of the provisions of sub-clause (b) of
Order 27 Rule 1 it will enable this court to pronounce its
judgement and also advance substantial cause and there is no
necessity to remand the proceedings as such documents
referred to hereinabove were relied upon in the exhibits
originally so produced before the trial court. The contention
of the respondents with regard to these documents as far as
A-2 to A-9 are concerned, opposing production of additional
evidence, is not accepted. Documents sought to be brought
on record from A-10 to A-16 namely agreements of sale dated
20.05.1988, 07.10.2000, 07.12.2019, 14.12.2019 are
agreements of sale to third parties which in no manner can be
of any assistance for the purposes of pronouncing the
judgement with regard to the market value of the land or the
quantum of compensation. So also the development
agreement dated 06.06.1992 need not be brought on record
by way of additional evidence. We therefore partly allow the
application for bringing additional evidence on record and
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consider these documents namely Annexures A-2 to A-9 which
we have while advancing reasons in deciding the issues raised
before this court.
26. An additional argument has been raised by the State
that there is an arithmetical error in calculating the amount of
interest/rent at the rate of 15% per annum from 29.11.1991 to
09.02.2007 giving rise to the total of Rs.729,20,94,260.41
since the correct amount comes to the tune of
Rs.673,78,13,382/- which would have changed the final award
amount to Rs.1,816,98,83,561/- instead of the awarded sum of
Rs.1,872,41,64,438.73. A statement along with the memo of
the first appeal has been pressed into service which reads as
under:
Statement I showing the additional compensation awarded by the Civil Court,
Vaoddara alongwith arithmetical viz-a-viz correct figure
Sr L.R. Case City Area of Additi 12% 30% Inter Aggreg As per As per Total Amount
.N no. Surv Land onal additi soalti est/ ate para para 6.1
o. ey under Comp onal um on Rent Amount 6.1 of of the
No. Acquisi ensati intere marke Fro of the Judgment
tion on on st u/s t m Compe Judge , Interest
Sq. mtr award 23(1- value 29/1 nsation ment, @ 15%
ed by A) (As 1/19 (5+6+7 Intere (from
the from per u/ 91 +8) st @ 10.02.200
Court date s to 9% 8 to
at at u/s 23(2)) 09/0 for 17.02.202
Rs.24 4 to 2/20 the 3)
134/- date 07 first
per at (15 year
sq.mtr award %) from
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(i.e. (22 Sectio
Rs.26, month n-4
048.0 s) Notifi
0- cation
Rs.19 (From
14) 09.02.
(As 2007)
per u/
s 23)
1 2 3 4 5 6 7 8 9 10 11
1 37/2009 1-A/2 122718 29616 65156 88850 729, 1179,3 26655 666,37,71 1872,41,64,43
35/2009 76212 8767 2864 20,9 8,42,10 0859 ,477.00 8.73
55/2009 4,26 2.65
0.41
6737 112395 26655 666,37,71 1816,98,83,56
8133 61225 0859. ,477 1
27. The argument of the learned Advocate General appears
to be erroneous. The statement when perused would indicate
that the interest calculated by the appellant to highlight an
arithmetical error is only on the additional compensation
awarded of Rs.24,134/- and not the total compensation of
Rs.26,048/- which includes the amount of Rs.1,914.00 which
was initially awarded to the claimants.
28. Cross objections have been filed and before we decide
the same, the state has produced a chart showing the fair
valuation of the subject land which is as under:
Statement showing fair valuation of the subject land
Available Sale Instance on record, which Rs.10,038.80 per sq.mtr. as per Sale Deed
should be applied to the subject land dated 25.01.2005 (pg.118 in PB) in respect
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----- of land bearing City Surrvey No.139
admeasuring 1,992.27 sq. mtrs., located in
Vadodara-Kasba, City Vadodara,
09.02.2007 (pg.95A in PB) located at
Date of Section 4 Notification in respect of Vadodara-Kasba, City of Vadodara.
subject land -----
Amount of escalation @ 10% for the period
from 25.01.2005 to 09.02.2007 (25 months) Rs.2,161.51 per sq. mtr.
-----
Total rate of valuation ------ Rs.12,200.31 per sq.mtr. (i.e. Rs. 10,038.80
per sq.mtr. + Rs.2,161.51 per sq. mtr.)
Amount towards 50% deduction from the Rs.6,100.15 per sq. mtr.
aforesaid rate of valuation, so as to app the
same to the larger tract of land like subject
land -----
Net valuation rate which may be applied to Rs.6,100.15 per sq. mtr. (Rs * 0.12, 200.3)
the subject land ----- sq.mtr. -Rs.6,100.15 per sq.mtr.
Rs.4,186.15 per sq. mtr. (i.e. Rs.6,100.15
Difference in the rate i.e. net valuation rate per sq. mtr. - Rs. 1,914.00 per sq. mtr.)
- the rate determined as per Section 11
Award, for working out the amount of
Additional Compensation -----
Chart indicating the working of very plausible amount payable towards
compensation for the subject land on the basis of the aforesaid details
Sr L.R. Case City Area of Additi 12% 30% Inter Aggreg As per As per Total Amount
.N no. Surv Land onal additi soalti est/ ate para para 6.1
o. ey under Comp onal um on Rent Amount 6.1 of of the
No. Acquisi ensati intere marke Fro of the Judgemen
tion on on to st u/s t m Compe Judge t, Interest
Sq. mtr be 23(1- value 29/1 nsation ment, @ 15%
worke A) (As 1/19 (5+6+7 Intere (from
d out from per u/ 91 +8) st @ 10.02.200
at date s to 9% 8 to
Rs.41 at u/s 23(2)) 09/0 for 17.02.202
86.15 4 2/20 the 3)
per 07 first
sq.mtr (15 year
. %) from
Sectio
n-4
Notifi
cation
(From
09.02.
2007)
1 2 3 4 5 6 7 8 9 10 11
1 37/2009 1-A/2 122718 51371 11301 15411 0.00 780848 46234 11558609 1982943589
35/2009 5955. 7510 4787 253 436 00
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29. It is the contention of the state that the chart indicates
the working of a very plausible amount payable towards
compensation. Working of the chart indicates that accepting
Rs.10,038/- as the sale price to be applied to the subject land
after adding 10% escalation of Rs.2161.51, the total valuation
arrived at is Rs.12,200.31. 50% deduction from the aforesaid
value is pressed into service as it is a large tract of land being
in the shape of a strip of land having more depth rather than
frontage, lying low, existence of a water body and a railway
track. Perusal of the award indicates that the Reference
Court has deducted 25% each on account of the land being on
the interiors, keeping that it was a large tract and therefore
the assessment for a smaller tract of land cannot apply and
keeping these parameters in view, came to a figure of
Rs.25,004.98. Reading the award indicates that since the
valuation committee's minutes were dated 13.09.2006,
whereas the Section 4 notification was of 09.02.2007, there
was a difference of 4 months and 26 days. Annual escalation
of 10% could be applied and pro-rata escalation was worked
out at 4.17% at Rs.1043/- to arrive at the figure of
Rs.25,004.98 which in our opinion is just and proper.
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30. Mr. Prakash Jani, learned Senior Advocate has argued
the cross objections and submitted that the claimant's
demand for an amount of Rs.65,000/- was just and proper. The
possession of the land was with the government since long
even prior to the Tribunal dated 29.11.1991 and even
otherwise if exs. 146-149 are taken into consideration, the
minimum that could be fixed was in the range of Rs.40,000 to
45,000 per sq.mtr. Compensation therefore ought to have
been enhanced. He also would reiterate the submissions
made by learned Senior Advocate Mr. Mihir Thakore and rely
on the following decisions:
(a) Chimanlal Hargovinddas vs. Special Land Acquisition
Officer reported in 1988(0)-AIJEL-SC-5162;
(b) General Manager, ONGC vs. Rameshbhai Jivanbhai
Patel reported in 2008(0)-AIJEL-SC-42139;
(c) Mehrawal Khewaji Trust (Regd.) Faridkot vs. State
of Punjab reported in 2012(0)-AIJEL-SC-51154;
(d) State of Gujarat Through Special Land Acquisition
Officer vs. Amaji Mahanji Thakore reported in 2010(0)-
AIJEL-HC-223782;
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(e) Special Land Acquisition Officer vs. Karigowda and
Others reported in 2010(5)-SSC-708;
(f) Haresh J. Doshi vs. Prataprai Gaurishanker Trivedi
reported in 2018(0)-AIJEL-HC-239236;
(g) Sirajudheen vs. Zeenath reported in 2023(0)-AIJEL-
SC-70437.
31. We have assessed the evidence on record from the
perception of the land reference court's reasoning. While four
instances were put forth before the trial court as comparable
sale instances for arriving at a figure of Rs.25,004.98, what is
evident is that the reference court considered ex. 147 wherein
the sale deed dated 25.01.2005 for 6125 sq. mtrs of land was
the base price. Based on the decisions pressed into service by
the learned counsel for the respondent claimants, on the issue
of assessment of market value, deduction towards
development charges, escalations that may be taken into
account and on the assessment of evidence on the question of
possession being with the State, we have given our
imprimatur on the fixation of Rs.25,004.98 and we see no
reason why the claim based on the cross objections be
accepted. True it is that even the cross objectors -
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respondent had reservations on the additional evidence that is
produced, however, perusal of the order concerning
production of additional evidence, though the cross objectors
would submit that the evidence which is sought to be brought
on record was known to the appellant, was within the
exclusive custody of the appellant and it is not their case that
they could not find out these documents. We have considered
these documents namely annexures A-2 to A-9, they being
public documents and were already referred to in the
documents already on record and which have enabled us to
pronounce the judgement and therefore even the contention
of the learned counsel for the respondents that these not be
taken into consideration need not be accepted. As is evident
from the case in Malayalam Plantation (supra), when such
documents are official records which if proved would enable
the appellate court to pronounce the judgment and do full,
complete and effective justice to the parties enabling the
court to answer the subject matter, in our opinion there are
sufficient ground for permitting to bring such documents by
way of additional evidence.
32. For the aforesaid reasons therefore the appeals and the
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connected cross objections are dismissed. Civil application for
bringing additional evidence is partly allowed. Civil
Applications for stay also stand disposed of. Notices are
discharged.
CIVIL APPLICATIONS 2321/2022, 99/23 & 100/23
1. These are Civil Applications filed by one Mukesh
Jamnadas Shah and Another. Mr. Nirav Majmudar, learned
advocate appearing with Mr. P.B. Khambolja, learned
advocate for the applicants has submitted that the applicants
may be granted leave to file first appeals against the order of
the learned 20th Senior Civil Judge, Vadodara dated
05.03.2022 in Land Reference Nos. 37 of 2009 and others. He
states that he adopts the arguments advanced by Mr. Mehul
Shah, learned Senior Advocate appearing in the Civil
Applications for joining party.
Civil Applications No. 3/2022 in FA No. 21 of 2023,
1/2023 in FA No. 11 of 2023, 3/2023 in FA No. 22 of
2023, 4/2023 in FA 11 of 2023 for joining party
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2. Civil Applications No. 3/22 & 1/23 have been filed by one
Mukesh Jamnadas Shah and Another for being impleaded as
party respondents in the respective main first appeals
whereas Civil Applications No. 3 & 4 of 2023 have been filed
by one Shankar Keshavlal Patel for being impleaded as party
in the respective appeals.
3. As far as Civil Applications No. 3/22 and 1/23 are
concerned, the submissions made by Mr. Mehul Shah, learned
Senior Advocate in the leave to appeal in the main appeals
are common.
4. Mr. Mehul Shah, learned Senior Counsel appearing with
Mr. Vaibhav Vyas, learned advocate for the applicants would
submit that in the year 2007 the applicants had filed Special
Civil Suit No. 521 of 2007 praying for compensation to be
granted to the applicants in view of the fact that the
applicants have interest in the parcel of land. Negotiations
took place between the parties and by a pursis dated
28.02.2012 the suit was withdrawn. He would invite the
court's attention to the Memorandum Of Understanding
(MOU) to submit that an understanding was arrived at
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between the parties. During the pendency of the suit, the SRP
approached the Hon'ble Supreme Court by filing Special
Leave Petition challenging the order dated 27.08.2007 which
was admitted. Rival claimants had filed proceedings before
the Supreme Court. It was the case of the applicants that
since the MOU was vitiated they filed restoration proceedings
of the civil suit which was rejected by an order dated
14.08.2014.
4.1 Special Civil Application No. 14157 of 2014 was filed
challenging the order of the trial court. During the pendency
of the petition, the Apex Court by virtue of an order dated
26.04.2017 in Civil Appeal No. 3224 of 2010 directed the Civil
court to decide the Special Civil Suit and the Land Reference
expeditiously. One Jayantibhai Ramdas Patel in Special Leave
Petitions No. 26400-26401 of 2012 prayed for deletion in the
suit which prayer was allowed by the Apex Court. Since the
civil suit was sought to be restored, and the order rejecting
the application was a subject matter of challenge before this
court, the land reference court by passing the impugned order
lost sight of the fact that one of the claimants had already
preferred an execution petition to which the present
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applicants have lodged objection. Mr. Shah, learned Senior
Counsel would submit that the present applicants ought to
have been made parties in the land reference proceedings and
if the compensation is adjudicated, it would cause prejudice to
the applicants. He would rely on Section 53 of the Code of
Civil Procedure in context of a dispute regarding ancestral
property.
5. Mr. Asim Pandya, learned Senior Advocate appearing
with Mr. Udayan Vyas, in application for Leave to Appeal
would oppose the application on the ground that neither of
the applications for leave to appeal are maintainable as they
cannot be said to be persons interested. He would submit
that once the suit was unconditionally withdrawn and the
attempt to seek recall or review of the order had failed even
upto the Hon'ble Supreme Court, the applicants are not
entitled to seek Leave to Appeal. These facts have not been
disclosed by the applicants in the Civil Applications and
therefore the applications for leave to appeal and joining
party are wholly misconceived. Reference court had not
decided the issue of compensation where the applicants were
parties and the high court as an appellate court could not
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expand the scope of the original reference.
5.1 Mr. Pandya would submit that there was an
abandonment of proceedings in various fora as is evident from
a chart which is produced by learned counsel for the
respective respondents in the present applications. He would
submit that the applicants have approached by way of these
applications which is nothing but gross abuse of process of
law. Even otherwise the land acquisition act is a self
contained code, and no applications for impleadment in such
proceedings are maintainable. He would rely on a decision in
the case of Muthavalli of Sha Madhari Diwan Wafk S.J.
Syed Zakrudeen vs. Syed Zindasha [2009 (12) SCC 280].
6. In Civil Applications No. 3/23 and 4/23 the contention of
the applicant is that he is having interest in the share of the
land of which the original claimants are well aware. It is their
case that as set out in the written brief, reproduced
hereinbelow, that was produced during the course of hearing
that Late Shri Mahendrakumar Purshottam Desai had
bequeathed certain portion of land in favour of one
Jayantibhai Ramdas Patel. From the chronology of dates
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reproduced hereinbelow, it was their case that they were
proper and necessary parties to the appeal in light of the civil
suits filed inter se as set out in the brief note.
29.11.1991 Late Shri Mahendrakumar Purshottamrai
Desai had initiated revenue proceedings against
the authorities of the State Government with
regard to the land in quesiton. The said revenue
proceedings ultimately culminated into an order
dated 29.11.1991 passed by the Gujarat Revenue
Tribunal, whereby it was held that 53 Vighas and
18 Vasa land was belonging to the ownership of
Shri Mahendrakumar Purshottamrai Desai.
21.3.1994 State Government preferred Special Civil Suit No.
776 of 1996 in the Court of Learned Civil Judge
(Senior Division), Vadodara, whereby the above
referred order passed by the Tribunal dated
29.11.1991 was challenged and it was prayed to
declare that the land belonged to the State
Government. The said Civil Suit came to be
dismissed by the Learned Trial Court by judgment
and order dated 21.3.1994.
7.5.2002 State Government preferred First Appeal No. 969
of 1994 before the Honourable High Court. The
First Appeal as came to be dismissed on 7.5.2002.
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1.4.2006 Against the said order dated 7.5.2002 State
Government preferred Civil Appeal before the
Honourable Supreme Court, which came to be
partly allowed, whereby the Honourable Supreme
Court held that, out of 53 Vighas and 18 Vasa of
land, 2 Vighas and 5 Vasa land was acquired by the
State Government.
Thus, out of the total land admeasuring
128073 Sq.Mtr. (53 Vighas and 18 Vasa), excluding
5355 Sq.Mtr. (2 Vighas and 5 Vasa), the remaining
land i.e. 122718 Sq.Mtr. came to the share of
grandfather of the plaintiffs.
25.1.2007 The said land i.e. 122718 Sq.Mtr. came to be
acquired by the State Government for public
purpose by Notification dated 25.1.2007.
Preliminary award of Rs. 23 crore came to be
passed by the Land Acquisition Officer, out of
which 81.90% share i.e. Rs. 19,23,68,564/- was
received by one Jayantibhai Ramdas Patel. Land
Reference Case No. 18 of 2006 was filed by
Jayantibhai Ramdas Patel, seeking enhancement of
compensation.
Details as regards how Jayantibhai Ramdas Patel
came to be granted 81.90% share is stated as
under:-
22.8.1995 On 22.8.1995 late Shri Mahendrakumar
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Purshottamrai Desai had executed a Will in favor of
Jayantibhai Ramdas Patel.
Jayantibhai Ramdas Patel filed Probate Application
No. 224 of 2001, which came to be allowed by the
Civil Court, Vadodara and issued Probate Certificate
in his favour.
2.9.2004 In the year 2003, heirs of Mahendrakumar
Purshottamrai Desai filed Probate Revocation
Application No. 23 of 2003, which came to be
partly allowed and the Probate Certificate came to
be revoked by order dated 2.9.2004.
28.5.2007 Jayantibhai Ramdas Patel filed Review Application
No.169 of 2006 against the heirs of
Mahendrakumar Desai, wherein the parties
entered into amicable settlement, whereby it was
agreed that 81.90% share of the amount of
compensation would go to Jayantibhai Ramdas
Patel and 18.10% would go to the heirs of
Mahendrakumar Desai. Accordingly, consent
decree came to be passed on 7.5.2007. Since there
was some clerical error in the decree, Review
Application No. 89 of 2007 was filed, wherein
consent order came to be passed on 28.5.2007.
Thus, 81.90% share in the amount of
compensation came in the favor of Jayantibhai
Ramdas Patel.
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9.4.2007 Thereafter, Jayantibhai Ramdas Patel filed Special
Civil Suit No.116 of 2007 against all the heirs of
late Shri Mahendrakumar Purshottamrai Desai. In
the said Special Civil Suit as well, the parties
entered into compromise. Accordingly, consent
decree came to be passed on 9.4.2007.
Thus, the heirs of Mahendrakumar Desai did
not have any objection against the share of
Jayantibhai Ramdas Patel, as all of them knew that
Mahendrakumar Desai had executed a Will in favor
of Jayantibhai Ramdas Patel on his own free will.
The said order and decree has attained finality as
there is no challenge to the same.
Thus, the issue regarding 81.90% share in the
amount of compensation in the favor of Jayantibhai
Ramdas Patel had attained finality.
2008 Thereafter, in view of the increase in the price of
land, just with a view to frustrate the claim of
Jayantibhai Patel in the amount of compensation
payable in LRC No: 18 of 2006 and to pressurize
him to enter into compromise, though the fathers
of the plaintiffs had entered into a settlement with
the heirs of Mahendrakumar Desai, on the basis
whereof consent decree came to be passed, which
has attained finality, two grandsons of
Mahendrakumar Desai preferred Special Civil Suit
No. 516 of 2008
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In the said Civil Suit, the plaintiffs had prayed
for a declaration to the effect that the minor
plaintiffs No. 1 and 2 have their 18.51% share or as
may be determined by the Learned Trial Court in
the land in question admeasuring 1,22,718 sq.mtr.
It was further prayed for a declaration that, the
plaintiffs have their right in the amount of
compensation of the said land which was acquired
by the State Government and in connection with
which Land Reference No. 18 of 2006 was pending.
Accordingly, it was prayed to divide the share as
per the entitlement of the plaintiffs in their favor. It
was further prayed for a declaration that, the
grandfather of the plaintiffs namely
Mahendrakumar Desai did not have any legal right
to execute a will, since the suit land was a
coparcener property. Accordingly, it was prayed to
hold that only the plaintiffs and original defendants
No. 5 to 12 and their heirs as well as defendant No.
18 to 23 are entitled to 100% share in the amount
of compensation. It was further prayed to declare
and hold that the orders/ decree, wherein the
plaintiffs were not a party, which were passed by
the Learned Civil Judge (Senior Division) Vadodara
in Special Civil Suit No. 116 of 2007 and Review
Application No. 169 of 2006 as well as the order
passed in Review Application No. 89 of 2007, as
null and void.
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It was further prayed to declare that, the
defendant No. 1 namely Jayantibhai Ramdas Patel
did not have any right to the amount of
compensation on the basis of the consent decree
passed, on the basis of settlement arrived at
between the parties, in the proceedings of Special
Civil Suit No. 116 of 2007 and Review Application
No. 169 of 2006 as well as in Review Application
No. 89 of 2007 filed by the original defendants No.
5 to 7. It was further prayed to direct the
defendant No. 1 (Jayantibhai) to re-deposit the
amount of Rs. 19,23,68,564/- to the Treasury of the
Government, which the defendant No. 1 had
received in Reference Case No.18 of 2006 on the
basis of a Will dated 22.8.1995, wherein the
defendant No. 1 had obtained probate in Probate
Application No. 224 of 2001, which was revoked in
the Probate Application No.23 of 2003 or in the
alternative to pass a decree for recovery of the said
amount from defendant No.1 with 12% interest to
be paid to the share of the coparceners. It was
lastly prayed to pass a permanent injunction
restraining the defendant No. 1 from withdrawing
the amount of compensation from the defendant
No. 2 to 4 in Land Reference Case No.18 of 2006
and that the defendants No. 2 to 4 may be
restrained from making payment of the said
amount of compensation to the defendant No. 1.
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20.1.2021 The plaintiffs achieved their target by filing the
said Civil Suit, in as much as, the original
defendant No. 1 - Jayantibhai Ramdas Patel was
pressurized to enter into consent terms dated
20.1.2021, whereby he has waived his right to
additional amount of compensation to be payable in
Land Reference Case. Consent terms are at Page
Nos. 42 to 67. Accordingly, LRC No. 36 of 2009
came to be withdrawn by Jayantibhai Patel. The
said order of withdrawal is challenged by the
applicant before this Honourable Court by filing
Special Civil Application No. 1392 of 2022, which is
admitted by this Honourable Court vide order
dated 7.3.2022 and is pending final hearing.
20.1.2021 On the basis of the said consent terms, consent
decree came to be passed by the Learned Trial
Court vide order dated 20.1.2021.
* Being aggrieved by and dissatisfied with the said
consent decree, the applicant was constrained to
approach this Honourable High Court by way of
filing the First Appeal and as the applicant was not
a party to the said Civil Suit, the applicant had
preferred Civil Application seeking Leave to
Appeal.
9.12.2022 The said Civil Application for leave to appeal came
to be dismissed by this Honourable Court vide
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order dated 9.12.2022 with cost of Rs. 5,00,000/-
(Page No. 91 to 163). However, while dismissing
the said Civil Application this Honourable Court
has observed that if the applicant has an cause to
pursue, he can take his own recourse under the law
and he would know in what way to pursue the same
without this court needing to spell the same out
explicitly.
9.12.2022 Applicant filed SLP against the order dated
9.12.2022 which came to be dismissed by the
Honourable Supreme Court vide order dated
3.7.2023, particularly having regard to the fact that
the High Court has stated that the petitioner can
have recourse under law in respect of the
grievances that he has sought.
The Details with regard to the right and interest of
the applicant in the amount of compensation to be
received by Jayantibhai Ramdas Patel is stated as
under:
25.7.2008 The applicant had entered into a detailed
agreement with Jayantibhai Ramdas Patel, wherein
the amount of sale consideration of the land
between them was fixed as Rs. 30 Crores. The
amount of Rs. 20 Crores was already paid to
Jayantibhai Patel by the applicant herein.
Accordingly, it was agreed that, from the amount of
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compensation received in LRC No. 18 of 2006,
whatever excess amount of compensation is
received by Jayantibhai Patel, the same shall be
paid to the applicant herein.
2017 As Jayantibhai Ramdas Patel appeared to be not
acting in consonance with the above referred
agreement dated 25.7.2008 entered between him
and the applicant and as the present applicant was
being kept in the dark with respect to the
proceedings going on before the various Courts
and as Jayantibhai Patel was trying to act against
the said agreement dated 25.7.2008, the applicant
had preferred a Civil Suit No.372 of 2017, wherein
it was prayed that in view of the settlement
agreement dated 25.7.2008 executed between the
applicant (plaintiff therein) and the defendant
therein, the defendant No. 1 - Jayantibhai Ramdas
Patel is not entitled to receive the amount of
compensation to the extent of 81.90% as per
consent decree passed in Special Civil Suit No.116
of 2007, with respect to the land in question but
the plaintiff is entitled to receive the said
compensation to the extent of 81.90% and that the
said amount be paid to the plaintiff and the amount
of compensation should not be released in favor of
the defendants or any other person. It was further
prayed to declare that the Jayantibhai Patel
defendant No.1 is bound to act in accordance with
the agreement dated 25.7.2008. It is pertinent to
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note that in the said Special Civil Suit, all the heirs
of late Shri Mahendra Parshottamrai Desai,
including the fathers of the original plaintiffs of
Special Civil Suit No. 516 of 2008, are also
subsequently joined as defendants. (Page No. 78 to
90)
6.1 Mr. Asim Pandya, learned Senior Advocate who would
adopt similar contentions as in the case of applications for
leave to appeal would submit that the MOU relied upon by the
applicants which was a subject matter of challenge in First
Appeal No. 7674 of 2021 was decided against the applicants
which again is not brought on record by the applicants.
7. Mr. Tarak Damani, learned advocate appearing for the
original claimants would rely on a decision of the Apex Court
in the case of Prayag Upnivas Awas Evam Nirman
Sahahkari Samiti Ltd. vs. Allahabad Vikas Pradhikaran
[AIR 2003 SC 2302] and in the case of Muthavalli of Sha
Madhari Diwan Wafk S.J. Syed Zakrudeen vs. Syed
Zindasha [2009 (12) SCC 280] to oppose the application.
8. Having conjointly considered the submissions of learned
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counsel of the respective parties in the applications for leave
to appeal and the applications for joining party, the chart
tendered by the learned counsel Mr. Udayan Vyas for the
respondents in the respective applications needs to be
reproduced as under:
Civil Suit Proceedings under Land
acquisition Act
Date Proceedings Status Date Proceedings Status
Suit bearing Withdrawn The Applicants Objections
Special Civil Suit uncondition had filed rejected.
25/10/ no: 521 of 2007 ally by the 12/07 objections under
2007 was filed by plaintiffs on /2007 Section 9 of
Partners of 28/02/2012. the Land
Reliable Acquisition
Construction Co. Act, 1894
viz. Dharmendra before Special
Jamnadas Shah & Land Acquisition
Mukesh Jamnadas Officer.
Shah (Applicants
herein) against 11
The Applicants Dismissed
defendants
have preferred on
including Jayantilal
Special Civil 02/02/200
Ramdas Patel &
25/04 Application: 9 qua the
Special Officer
/2008 6686 of 2008 applicants
Land Acquisition.
challenging the .
22/09/ Exhibit 5 Dismissed order dated
2008 application filed 4/12.2.2007- 04/12/200
seeking interim 2008 of the 9 disposed
injunction in Special Land of finally.
Special Civil Acquisition
Suit:521 of 2007, Officer, Circle 1,
was dismissed Vadodara
through a detailed whereby the
order Objections filed
by Applicants
Appeal from Dismissed
were rejected by
Order as not
the SpLAO,
(AO/12/2009) was pressed.
Circle 1,
preferred against
Vadodara.
the order of
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rejecting the 11/02 The Applicants Disposed
Interim Injunction /2010 have preferred of on
Application in Diary Civil Appeal 26/04/201
SCS/521/2007 No: No. 3156 of 7,
dated 22/09/2008. 4671/ 2010
The said AO was 2010 challenging the 04/05/201
not pressed by order dated 7,
Applicants and 02/02/2009 SCS/521/2
same was (where the 007 is
disposed of with petition stood deleted
direction to the dismissed qua from the
Trial court to the applicants) order as
decide the suit in wrongly
proceedings SCA/6686/2008 mentioned
expeditiously. before the .
01/11/ An application Dismissed Hon'ble Apex
seeking recall of on Court.
order dated 14/08/2014 08/02 Original Dismissed
28/02/2012 /2010 Plaintiffs have as
through which the Diary withdrawn Civil Withdraw
Special Civil No. Appeal No. n on
Suit: 521 of 2007 4171/ 3279 of 2010 03/04/201
was 2010 pending before 2
unconditionally the Hon'ble
withdrawn, was Supreme Court.
filed. Along with The said Civil
the said Recall Appeal/3279/2
Application, an 010 was
application preferred
seeking against the
condonation of order of
delay of 7 months SCA/6686/2008
(Approx.) was also dated
preferred. 04/12/2009
11/09/ SCA/14157/2014 Dismissed which was a
2014 was filed by a final order.
challenging the reasoned Hence, the Civil
order dated judgment Appeal No. 3156
14/08/2014 on of 2010 which
whereby delay 17/03/2023. was against the
condonation order dated
application was 2/2/2009 would
rejected by the not survive as
trial court. the order dated
Notice was issued 2/2/2009 stood
in merged in the
SCA/14157/2014 final order dated
without granting 4/12/2009.
any interim relief. 14/05 The Dismissed
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This /2010 reference court
SCA/14157/2014. has rejected an
No interim application filed
relief/stay was by the applicants
granted by this in LAR/35/2009
Hon'ble Court in with a prayer to
that petition. join them as
party
02/05/ SPECIAL LEAVE Dismissed
respondent. The
2023 on
PETITION (CIVIL) said application
02/05/2023
was rejected
Diary No(s).
vide order Exb.
15500/2023 has 11 in
LAR/35/2009.
been preferred
13/01 The Dismissed
against the order
/2011 Hon'ble High
dated 17/03/2023 Court of Gujarat
has dismissed
in
the petition
SCA/14157/2014. bearing
SCA/10033/201
0 challenging
the order dated
14/05/2010
passed by
reference court
in LAR/35/2009.
09/12 The Dismissed
/2011 Hon'ble High
Court of Gujarat
has dismissed
the
LPA/347/2011
preferred
against the
order dated
13/01/2011 in
SCA/10033/2010
.
01/12 The
/2015 application
seeking recall of
the order dated
03/04/2012
passed by the
Hon'ble
Supreme Court
in Civil Appeal/
3279/2010 was
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dismissed.
04/04 An application Dismissed
/2022 seeking review on
of the order 07/04/202
05/03/2022 in
LARs 37, 35 &
55/2009 was
preferred by
Applicants.
__/ Objections are Pending
08/20 filed by Mukesh
22 J. Shah & Anr. in
Special
Execution
of 2022 - the
execution
application
filed by Rakesh
M. Desai
01/09 Hon'ble Dismissed.
/2022 Supreme Court
has dismissed
the modification
MA in
CA/3156/2010
seeking
modification of
order dated
04/05/2017.
One more MA
being Diary No.
1144 of 2023
was filed
seeking
modification of
order dated
01/09/2022. The
said application
is disposed of as
withdrawn on
10/04/2023.
15/09 Civil Pending
/2022 Application No.
2321/2022
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(Seeking Leave
to Appeal) in
First Appeal/
23/12 28415/2022
/2022 against the LARs
37/2009 is filed.
Civil
Application No.
23/12 99/2023
/2022 (Seeking Leave
to Appeal) in
F/First Appeal/
42671/2022
against the
LARs 35/2009
is filed.
Civil
Application No.
100/2023
(Seeking Leave
to Appeal) in
F/First Appeal/
42652/2022
against the
LARs 55/2009
is filed.
CA/3/2022 Pending
23/12 (FOR JOINING
/2022 PARTY) In
R/FA/21/2023
is filed by
23/12 Mukesh J. Shah
/2022
CA/3/2022
(FOR JOINING
PARTY) In
R/FA/22/2023
06/01 is filed by
/2023 Mukesh J. Shah
CA/1/2023
(FOR JOINING
PARTY) In
R/FA/11/2023
is filed by
Mukesh J. Shah
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8.1 What is evident from reading the chart is that as far as
Mukesh Jamnadas Shah is concerned, in the civil suit
proceedings, application to seek recall and restoration was
dismissed on 14.08.2014 and even the petition namely Special
Civil Application No. 14157 of 2014 was dismissed by a
reasoned order which was challenged before the Apex Court
and which was withdrawn to file civil suits which are pending
adjudication before this court.
8.2 On the front of the land acquisition proceedings, the
applicants had filed objections under Section 9 of the Land
Acquisition Act before the Special Land Acquisition Officer
which were rejected on 12.07.2007. Special Civil Application
No. 6686 of 2008 was preferred challenging the order of the
Land Acquisition Officer which was dismissed on 02.02.2009.
Civil Appeal No. 3156 of 2010 was filed challenging the order
of the High Court which was disposed of on 26.04.2017. Civil
Appeal No. 3279 of 2010 which was preferred against the
order of Special Civil Application No. 6686 of 2008 did not
survive. On 14.05.2010, an application which was filed for
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being joined as parties in Land Reference No. 35 of 2009 was
also dismissed. Challenge to this order failed inasmuch as
Special Civil Application No. 10033 of 2010 was dismissed.
Letters Patent Appeal against the order of the learned Single
Judge too were dismissed. From the chart therefore it is
apparent that the proceedings initiated by the applicants in
context of the present land acquisition proceedings in the civil
court as well as before the land acquisition courts had
attained finality which are not even disclosed by the
applicants in the applications for being joined and/or seeking
leave to appeal.
8.3 It will be apt to reproduce the timeline of the
proceedings as set out in the table from the affidavit-in-reply
filed by respondent no. 6 in Civil Application No. 1 of 2023.
"6. The following emerges from the above-
narrated proceedings time-line.
1. The Applicants had filed Special Civil Suit
No. 521 of 2007 which was unconditionally
withdrawn by the Applicants on 28/2 / 2012
The order dated 28/2/2012 clearly stated that
the Applicants were made aware by the
learned trial judge regarding the
consequences of the unconditional
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withdrawal. The Opponents herein had also
raised 2 objections to the said withdrawal and
contents of the pursis have not admitted.
2. Moreover, the Applicants have withdrawn
Civil Appeal No. 3279 of 2010 preferred
against order dated 04/12/2009(final order in
the SCA) passed in Special Civil Application
No. 6686 of 2008. The said petition was filed
challenging the rejection of the Objections
filed by the Applicants under Section 9 of the
Land Acquisition Act, 1894.
3. The withdrawal of Civil Appeal No. 3279 of
2010 was sough to be restored by recalling
the withdrawal order. The saic application for
recall was dismissed by the Hon'ble Apex
Court on 01/12/2015. Therefore, the law does
not permit to re-adjudicate the issues which
are consciously abandoned/withdrawn and
not permitted to be re-opened by the highest
court of the nation.
4. It is relevant to state that the applicants
have preferred Civil Application for Joining
Party in FA/21/2023 arising out from
LAR/37/2008. The said First Appeal is
preferred by the State of Gujarat. This clearly
indicates that the applicants having failed in
establishing any rights in any of the
proceedings till date, try to join the lis for
oblique motive by filing frivolous applications.
It is apt to refer to the observation made by
the Hon'ble High Court of Delhi, in the case of
Awaneesh Chandra Jha V. Anil Prasad Nanda,
CS(os) / 161 / 2022 dated 04/07/20222, "A
court is not a casino for a litigant to place a
bet masquerading as a legal claim; and to
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later withdraw from the proceedings if he
finds he has a losing-hand. No legal
proceedings may be initiated by a litigant by
way merely of a gamble as if placing a wager,
from which the litigant may conveniently
withdraw at any time, if matters are not going
his way. A court is a forum for laying serious,
bona-fidé claims, even if they turn-out to be
legally untenable or meritless upon
conclusion of the process. A court is not a
place for fraudulent game-playing by
dishonest litigants, to attempt to get judicial
imprimatur for false claims. This derives from
the inexorable, immutable and overarching
principle that fraud or fraudulent conduct in a
court of law vitiates all curial proceedings." In
the present case, the applicants have not only
withdrawn their suit proceedings but also the
proceedings filed pursuant to the rejection of
their application under section 9 of the Land
Acquisition Act, 1894. Therefore, the
captioned leave to appeal may be dismissed
with exemplary cost.
7. Not succeeded in any application seeking
impleadment filed in the Land Reference
Proceedings:
The Applicants were well-aware about all the
proceedings which were filed in connection with
the land in question. In fact, the applicants have
preferred two applications in LARs to join the land
reference. The same have been dismissed by the
Hon'ble High Court of Gujarat as well as Hon'ble
Supreme Court of India. These facts are completely
supressed by the applicants in the captioned
application.
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8. Order passed in review application not
challenged so far and the fact suppressed in the
application to leave to appeal:
The Applicants have preferred an application
seeking review ( a third party review application)
of the order dated 5/3 / 2022 in land reference
cases which is also the impugned order in
captioned proposed First Appeal. The said
application was disposed of with clear observations
that the Applicants do not have any locus to file any
application in the Land Acquisition Proceedings.
The said order and the findings have not been
challenged by the applicant before any competent
forum through appropriate legal proceeding.
Review application by the parties to the original
judgment and decree and review application by
third party stand on different footings. A third
party if aggrieved by any judgment or decree he
has two options namely filing a review application
and application for leave to appeal. If the third
party chooses to file review application, he cannot
thereafter file a leave to appeal. The applicant is
required to challenge the order passed in review
application by appropriate proceeding. Both
remedies are incongruous to the settled law.
9. No rights or interest of the Applicants would be
prejudicially affected:
Arguendo, assuming without admitting, that the
Agreement to Sell dated 20/05/1988 creates some
right or interest in favour of the Applicants, in that
case, upon crystallising such rights and interests
from competent court by filing appropriate legal
proceedings, if available, the Applicants can
recover the amount from concerned parties.
Therefore, the Applicants cannot be considered in
any manner prejudicially affected by the
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Award/Order dated 05/03/2022. Even otherwise the
applicant had unsuccessfully moved the reference
court under Sections 18 or 30 of the Land
Acquisition Act, 1894 where land reference cases
against the award dated 31/12 / 2008 were pending
and did not succeed till the Hon'ble Supreme
Court. In fact, the issue with regards to joining the
reference is already decided against the applicant
by the Hon'ble High Court of Gujarat in
SCA/10033/2010 as well as LPA / 347 / 2011 and
also in SCA/6686/2008 and by Hon'ble the
Supreme Court in CA/3156/2010 and
CA/3279/2010. Hence, the applicant cannot
through the captioned application, resurrect the
issue which has already attained finality.
10. Suppression of material and relevant facts by
the Applicants:
The suppression of material and relevant facts
disentitles the Applicants to get any relief in Leave
to Appeal.
a. The Applicants have not even stated the
facts regarding withdrawal of Civil Appeal no.
3279 of 2010 and various other proceedings
where same prayers have been sought. More
particularly, Hon'ble Apex Court has passed
an order on 01/09/2022 in MA/1178/2022 in
CA / 3156 / 2010 wherein the application
seeking inter alia, stay on disbursement was
dismissed This fact has not been stated in the
captioned application though the captioned
application was filed on 15/9 / 2022 i.e. after
the said order of the Apex Court. The
applicants have not stated all relevant facts
and produced all the relevant documents. It is
trite law that the equitable and discretionary
jurisdiction may not be exercised in favor of
the litigant who has suppressed or stated
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incorrect facts. The captioned application
falls in the realm of equitable and
discretionary jurisdiction. Therefore, the
principles enunciated by the Hon'ble Apex
Courts with reference to equitable and
discretionary jurisdiction vis a vis conduct of
the parties apply in the present proceeding.
In a catena of Judgments Hon'ble the Apex
Court held that, the High Court is exercising
discretionary and extraordinary jurisdiction
under Article 226 of the Constitution. Over
and above, a Court of Law is also a Court of
Equity. It is, therefore, of utmost necessity
that when a party approaches a High Court,
he must place all the facts before the Court
without any reservation. If there is
suppression of material facts on the part of
the applicant or twisted facts have been
placed before the Court, the Writ Court may
refuse to entertain the petition and dismiss it
without entering into merits of the matter.
(emphasis supplied.) [Kindly Refer: Prestige
Lights Limited V. State Bank of India reported
in 2007 (8) SCC 449] In a case of Minaxi
Bhatt V. State of Gujarat (LPA/454/2013),
Division Bench of this Hon'ble Court has
observed that, the principle which can be
deduced from the above referred decisions is
that the party who seeks relief from the High
Court in exercise of its equitable jurisdiction
under Article 226 of the Constitution of India
must come with all bona fides, must make
true, candid and full disclosure of all the
relevant facts. Its conduct must be above
board. There should be no attempt by a party
to mislead the Court. The petitioner is under
an obligation to collect all material facts with
due care and attention and he will not be
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heard to say that facts were not within his
knowledge although the same could have
come to his knowledge had he taken due care
and had made efforts to find them out. The
High Court will be fully justified in declining
exercise of extraordinary jurisdiction in
favour of a party who is guilty of suppressio
veri and suggestio falsi or who makes an
attempt to mislead the Court. (emphasis
supplied.)
The above observations though made in the
context of a petition under Article 226 of the
Constitution they apply to every discretionary
power exercised by this court whether under
civil, criminal or special jurisdiction.
The applicants have suppressed by not stating
that they have unsuccessfully tried to join the
LAR / 35 / 2011 which was dismissed by the
Reference Court as well as this Hon'ble Court.
The order dated 13/1 / 2011 in
SCA/10033/2010 attained finality as the LPA /
347 / 2011 filed against the said order was
dismissed (for default) in 9/12 / 2011 .
11. Abuse of Process of Law:
The applicants are guilty of suppression of
material facts, approaching courts and
authorities with uncleaned hands, re-
agitation of similar issues in simultaneous
proceedings. Hence, the facts indicate that
this application is nothing but a gross abuse
of process of law. It is trite law that abuse of
court process creates a factual scenario
where a party is pursuing the same matter by
two court process. In the present case, the
applicants have preferred multiple
proceedings before multiple fora seeking
similar relief. Just to provide the lists of the
proceedings filed wherein stay on
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disbursement of amount or stay the
implementation of order dated 05/03/2022 is
sought, 1. Review Application before learned
Trial Court, 2. Application for recalling of the
Order dated 26/04/2017 before Hon'ble Apex
Court, 3. Objections filed in Special Execution
proceedings filed by Respondent no.3 before
learned Trial Court. It is trite law that re-
agitation/multiple-litigations on the basis of
spurious claim and for same relief is gross
abuse of process of law. Therefore, such
abuse of process needs to be curbed by
dismissing the Leave to Appeal in limine with
exemplary cost. [Please refer to Advocate
General, State of Bihar versus M.P. Kair
Industries AIR 1980 SC 946 para 7,10,12;
Hindustan Zinc Ltd versus Vijay Singh & Co
1994(1) GLR 161 para 26,28; R. Sadagopan
versus K Rajaiah 2009 ILR (Kant) 3302 (para
17,18)]
12. In response to paragraph no. 1 of the
application, I state that the contents therein
are formal in nature and hence, I do not have
any comments to offer. I state that the
applicants are neither necessary nor proper
party in the land acquisition proceedings.
13. In response to paragraph no. 2 of the
application, I deny the facts stated therein. I
state that from the very inception, the
contents of the withdrawal Purshish filed by
applicants herein, was not admitted. In fact,
in the order dated 28/2 / 2012 in SCS / 521 /
2007 , it is clearly recorded by the learned
Court that I have taken objection to the said
withdrawal. Therefore, it is not only incorrect
but misleading to state that ...in view of an
understanding having been arrived at, the
suit was withdrawn... I categorically deny the
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contents stated therein.
14. In response to paragraph no. 3 of the
application, I deny the facts stated therein. I
state that the applicants so as to misled the
court provides completely incorrect facts as
much as it mentions "Respondent no. 9 herein
had approached the Hon'ble Supreme Court
by way of a Special Leave Petition,
challenging the Order of the Hon'ble High
Court of Gujarat dated 27.08.2007 in Special
Civil Application 20703/2007, which came to
be admitted and was converted to Civil
Appeal 3224 of 2010". I state that Respondent
no. 9 of the present application is
'Commander' State Reserve Police Force Juth-
1'. I further state that I have accessed the
status report of Civil Appeal No. 3224 of 2010
from the website of Hon'ble Supreme Court,
the said Civil Appeal was filed by one Jayanti
Ramdas Patel challenging common order
dated 04/12/2009 passed in SCA/2923/2009
and SCA/1592/2009 by this Hon'ble Court. A
copy of the status report of Civil Appeal No.
3224 of 2010 is annexed as Annexure - R2.
15. In response to paragraph no. 4 of the
application, I deny the facts stated therein. I
state that between 2014 to 2022, the
applicants have not pursued the Special Civil
Application 14157 of 2014. In fact, no interim
relief has been granted in favour of the
applicants in the said petition by this Hon'ble
Court. Therefore, it is safe to state that the
pendency of the said petition cannot be
pleaded as ground to file the captioned
application seeking leave to appeal. It is
relevant to state that on 17/03/2023, SCA
14157 of 2014 has been dismissed. A copy of
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the order is annexed as Annexure - R3.
16. In response to paragraph no. 5 - 11 of
the application, I deny the facts stated
therein. I state that most of the facts stated
therein are contrary to the orders passed by
the Hon'ble Supreme Court and/or
misleading. As stated, the applicants have
preferred Civil Appeal No. 3279 of 2010
against the order dated 04/12/2009 passed in
SCA/6689/2008 (arising out of rejection of
Section 9 application) before the Hon'ble
Supreme Court. The said appeal was
withdrawn on 3/4 / 2012 The applicants
thereafter filed an application seeking recall
of the order of withdrawal dated 3/4 / 2012
The said recall application was dismissed by
the Hon'ble Supreme Court on 1/12 / 2015
The applicants have wilfully and deliberately
supressed these facts. I further state that the
applicants have filed Miscellaneous
Application in Civil Appeal No. 3156 of 2010,
on 1/9 / 2022 Hon'ble Supreme Court was
pleased to dismiss the said application. The
applicants have not supplied the said order
passed by the Hon'ble Supreme Court. This
also shows the malafide and oblique intention
of the applicants. I state that the deletion of
Special Civil Suit no. 521 of 2007 from order
dated 26/04/2007 was already agitated
unsuccessfully by the applicants before the
Hon'ble Supreme Court. It is therefore, not
permissible under the law to agitate the
grievance which has already attained
finality."
9. As far as applications for joining party by Shankarbhai
Keshavlal Patel are concerned, the claim of being parties
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interested in the compensation is on the basis of an MOU
dated 25.07.2008 as an assignee of rights of one Jayanti
Ramdas Patel. From the arguments made on behalf of
respondents no. 6 & 7 of the connected applications, it is
evident that the will of Shri Mahendra Desai was forged. Even
after passing of an award by the Land Acquisition Officer the
applicants did not come forth to claim compensation. A suit
was filed in the year 2014 where too the MOU was never
mentioned. A leave to appeal was filed against the concerned
decree in Civil Suit No. 516 of 2008 which this court by an
order dated 09.12.2022 rejected. A Division Bench of this
court in Civil Application No. 1826 of 2021 in First Appeal No.
7674 of 2021 at the hands of the applicant categorically
mentioned that it was a clear design on the part of said
Jayantibhai Ramdas Patel in context of the proceedings and it
will be apt to reproduce paragraphs no. 13 to 15 of the order
in the civil application.
"13. This appears to be a clear design on the part
of Mr.Jayantibhai Ramdas Patel who per-force has
gone out of the compromise by saying that he will
not be asking for any share while introducing
possibly on his behalf, the opponent Nos.21 and 24
in the original suit. It is also noteworthy that the
Division Bench of this Court had directed in Special
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Civil Application No.1592 of 2009 and allied
matters the deposit of the entire amount which had
been given to him by the Land Acquisition Officer.
However, out of that Rs.33 Crore that he received,
only Rs.2 Crore had been thereafter deposited by
him because of the Apex Court's order. When he
challenged the said decision of this Court in Civil
Appeal No.3224 of 2010, the Apex Court stayed the
order of the Division Bench and directed the suit to
be proceeded within a period of six months.
Unfortunately, in that suit the compromise had
been arrived at where the choice possibly between
the family was of devil or the deep sea and hence,
it has permitted him to retain the amount which he
had with him as there is no mention of such
amount which otherwise he was directed to be
refunded and we have confirmed this aspect from
the senior advocate, Mr.Asim Pandya. After his
retaining this amount, 70% share has been taken
by the two outsiders whom the plaintiffs
themselves have allowed to enter because of their
political clout. On noticing actual purport of such
action, the Court is much at pain to note that this
litigation of number of years is stretched beyond
imagination by those who are court birds and such
protracted litigation has capacity to tire the
genuine litigants who then fall prey to such
temptation of ending the disputes as has happened
in the instant case. It is though ostensibly a
genuine and permissible compromise under the
law. On reading between the lines, prima facie, it
seems to be the attempt largely to wriggle out of
the clutches of such elements, possibly born out of
misery, helplessness and frustration as no light of
justice at the end of long tunnel of litigation
probably was visible. However, the applicant being
that cause, essentially, he surely is not the party
which deserves any entertainment to allow him the
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leave to prefer appeal and question the decree. If
he has any cause to pursue, he can take his own
recourse under the law and he would know in what
way to pursue the same without this court needing
to spell the same out explicitly.
14. Resultantly, this application is rejected in view
of the foregoing discussion with the cost of
Rs.5,00,000/- (Rupees Five Lakh Only) which shall
be paid to the heirs of late Mr.Mahendrakumar
Purshottambhai Desai.
15. None of the findings and observations shall
prejudice the right of the litigants nor would they
shall come in the way of the parties in pending
litigation."
9.1 This therefore shows the intention of the applicants to
revive a proceeding which had otherwise attained finality
even without showing the litigation in the leave to appeal.
Even otherwise as held by the Apex Court in the case of
Muthavalli of Sha Madhari Diwan Wafk S.J. Syed
Zakrudeen (supra), of which paras 11 & 12 are as under, that
the Land Acquisition Act is a self contained code.
"11. `The Act' is a self-contained code. It not only
provides for the mode and manner in which the
acquisition proceedings are initiated but also the
mode and manner in which the proceedings for
making an award as also the mode and manner in
which an application for reference by a person
dissatisfied therewith is to be made.
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12. A reference may be prayed for by a person
interested in the proceeding. Ordinarily, he should
be a party to the proceedings for making an award.
He has to file an application for making a reference
before the Collector of the District within the time
specified thereunder. Such an application must be
in writing and the reference to the civil court which
may be prayed for before the Collector would be in
regard to his objection as regards measurement of
land, the amount of compensation, the person to
whom it is payable or the apportionment of the
compensation amongst the persons interested. The
Reference was made only in respect of the amount
of compensation. No reference has been made in
regard to the right of persons to whom it was
payable or apportionment of compensation
amongst the persons interested. The claim of the
first respondent has been noticed by us. He has
laid his claim on the title of the property. He has
prayed for proper and effective implementation of
the decree passed by a civil court. He alleged
mismanagement of the Wakf property by the first
appellant."
9.2 The applicants cannot claim a right on the basis of the
MOU which is no document in the eye of law and the conduct
of the applicants become apparent that according to them if
the MOU was in existence since 25.07.2008, the applicants
did not raise any claim on the basis of the MOU and they filed
a separate land reference being Land Reference No. 36 of
2009 which was subsequently withdrawn. They then filed a
separate proceeding namely Special Civil Application No.
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1392 of 2022 where the court on 04.02.2022 held as under:
"In this Special Civil Application, the
Memorandum of Understanding dated 25.7.2008
(Notarized copy) has been tendered under which it
is stated that deceased Mahendrakumar
Parshottambhai Desai and the assignor were the
owner of the land and the assignee had financially
helped the assignor in installments as stated in
Paragraph 4A of the said Memorandum of
Understanding and the assignor was supposed to
reimburse the same from the compensation amount
of Rs.19,23,67,000/- which the assignor had taken
from the assignee from time to time. Prima facie,
this document would fall within the four corners of
Clause (e) of Sub-Section 1 of Section 19 of the
Registration Act, 1908. As to whether the said
document would attract the stamp duty under the
Gujarat Stamp Act,1958 under Schedule-I and if so,
what would be the stamp duty, has to be
ascertained. Hence, we direct Notice to
Mr.K.M.Antani, learned Assistant Government
Pleader, who is on the virtual Court.
Learned counsel appearing for the petitioner
shall serve a copy of the Special Civil Application
along with all annexures to the learned Assistant
Government Pleader.
Re-list this matter on 14.2.2022"
9.3 The order dated 09.12.2022 passed by the Division
Bench of this court in Civil Application No. 1826 of 2021
which also took note of suppression of material facts
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regarding the proceedings in which the MOU was not even
referred to by the applicants, was challenged before the Apex
Court. On 03.07.2023, the Apex Court dismissed the SLP,
however, cost of Rs.5 lakhs was set aside.
10. All these reasons indicate that these applications filed at
the instance of the applicants either to seek permission for
leave to appeal and/or for joining party are nothing but
attempts to have a piece of the pie in terms of enhanced
compensation and therefore an attempt to join and/or seek
leave to appeal.
11. For all the above reasons, these applications being
applications for leave to appeal as well as joining party stand
rejected. No costs. Notices are discharged.
(BIREN VAISHNAV, J)
(MAUNA M. BHATT,J)
DIVYA
