Gujarat High Court
Patel Karsan Kana vs State Of Gujarat on 31 January, 2024
Author: Biren Vaishnav
Bench: Biren Vaishnav
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C/FA/3287/2019 JUDGMENT DATED: 31/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3287 of 2019
With
R/FIRST APPEAL NO. 4423 of 2023
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4423 of 2023
With
R/FIRST APPEAL NO. 4422 of 2023
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4422 of 2023
With
R/FIRST APPEAL NO. 3288 of 2019
With
R/FIRST APPEAL NO. 3289 of 2019
With
R/FIRST APPEAL NO. 3291 of 2019
With
R/FIRST APPEAL NO. 3292 of 2019
With
R/FIRST APPEAL NO. 4424 of 2023
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4424 of 2023
With
R/FIRST APPEAL NO. 3293 of 2019
With
R/FIRST APPEAL NO. 3294 of 2019
With
R/FIRST APPEAL NO. 3295 of 2019
With
R/FIRST APPEAL NO. 3296 of 2019
With
R/FIRST APPEAL NO. 4425 of 2023
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4425 of 2023
With
R/FIRST APPEAL NO. 4426 of 2023
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4426 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Page 1 of 9
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL KARSAN KANA
Versus
STATE OF GUJARAT
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Appearance:
MR SANJAY M AMIN(130) for the Appellant(s) No. 1
MR KURVEN DESAI ASSISTANT GOVERNMENT PLEADER for the
Defendant(s) No. 1,2,3 (F.A. No.3287/2019, 4423/2023, 4422/2023,
3288/2019, 3289/2019)
MS POOJA ASHAR ASSISTANT GOVERNMENT PLEADER for the
Defendant(s) No. 1,2,3 (F.A. No.3292/2019, 4424/2023, 3293/2019,
3294/2019, 3291/2019)
MR AAKASH CHHAYA ASSISTANT GOVERNMENT PLEADER for the
Defendant(s) No. 1,2,3 (F.A. No.3295/2019, 3296/2019, 4425/2023,
4426/2023)
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 31/01/2024
COMMON ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
1. This group of Appeals is filed by the original claimants - land
owners, seeking enhancement of the award as against the
judgment and order dated 25.10.2017 passed by the learned Third
Additional Senior Civil Judge, Junagadh, in Land Reference Case
No.04 of 2003 and allied matters. By the said judgment and award,
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the Reference Court was pleased to award Rs.5,730/- per Are
(Rs.57.30 per Sq. Mtr.) for irrigated land and Rs.2,085/- per Are
(Rs.20.85 per Sq. Mtr.) for non-irrigated land as additional
compensation in exercise of powers conferred under Section 18 of
the Land Acquisition Act.
2. We have heard learned advocate Mr. Nitin Amin, who has
appeared on behalf of Mr. Sanjay Amin, learned advocate on
record for the appellants and learned Assistant Government
Pleader, who has appeared and assisted this Court on behalf of
the respondents.
3. Short facts, which arises for consideration from the records
of the case, are summarized as under:
3.1 The lands of the original claimants are situated in village:
Chandrawadi, Ta. Mendarada, District: Junagadh, which were
notified for acquisition for public purpose i.e. Chandrawadi Small
Irrigation Scheme. The intention to acquire these lands was
declared by the State Government by publishing Notification under
Section 4 of the Act on 03.10.1996. The said Notification was
followed by declaration of acquisition of land pursuant to issuance
of Notification under Section 6 of the Act. In all these Appeals,
Special Land Acquisition Officer had passed different awards in
respect of the acquired lands determining the market value of land
at Rs.520/- per Are for irrigated land and Rs.415/- per Are for non-
irrigated land.
3.2 As the claimants were dissatisfied with the aforesaid offers,
they have approached before the Reference Court under Section
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18 of the Act. The different Land Reference Cases came to be
registered and the Land Reference Case No.04 of 2003 was
considered as a lead case. The Reference Cases were
consolidated and the common evidence were recorded by the
Reference Court.
3.3 Before the Reference Court, the original claimants have
urged for determining the compensation at the rate of Rs.6,250/-
per Are for irrigated land and Rs.2,500/- per Are for non-irrigated
land. In support of their claims, the original land owners have been
examined as witnesses and have also produced on record various
documentary evidence. During the course of hearing, reliance was
placed upon the earlier decision of the Reference Court being
Land Reference Case No.1467 of 1999 and allied matters, wherein
different parcel of lands of nearby villages were acquired for the
public purpose for construction of Naredi - Bodka - Piplana Road.
In the aforesaid group of matters, the Notification under Section 4
was published by the State Government on 12.09.1994. The
Reference Court upon appreciation of evidence in the aforesaid
group of matters, had determined the market value of the irrigated
land at the rate of Rs. 8,900/- per Are and in case of non-irrigated
land, at the rate of Rs.6,680/- per Are. While appreciating the
aforesaid decision, though the Reference Court was of the view
that Reference Cases required consideration, however, noticing
the fact that the original claimants have restricted their claims of
lesser value, the Reference Court refused to apply the aforesaid
decision in the facts of the case. By the impugned judgment and
award, the Reference Court has proceeded to fix the market value
of the irrigated land at the rate of Rs.5,730/- per Are and in case of
non-irrigated land, Rs.2,085/- per Are. Hence, these First Appeals
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at the instance of the original claimants.
4. Learned advocate on record for the appellants and the
learned Assistant Government Pleader appearing for the
respondents have at the outset invited our attention to the relevant
observations of the Reference Court and have submitted that
though the purshish was filed at Exhibit 84 by the Executive
Engineer, Panchayat Irrigation Division, Junagadh, on 06.09.2017
before the Reference Court expressing their agreement to accept
the value of land at the rate as determined in earlier decision of the
Reference Court in Land Reference Case No.1467 of 1999 and
allied matters, merely on the ground that the claim was restricted
to lesser value, the Reference Court has refused to apply the
aforesaid value in the facts of the present case. Learned advocate
Mr. Amin for the appellants has placed reliance upon decision of
the Hon'ble Supreme Court in the case of Ashok Kumar Vs.
State of Haryana reported in (2016)4 SCC 544 and has urged this
Court to allow these Appeals accordingly.
5. Having heard the learned advocates on record for the
respective parties and having perused the impugned judgment and
award and considering the submissions made by the learned
advocates, the only question which falls for consideration in the
present group of Appeals is whether the original claimants are
entitled for enhancement of the award amount in light of earlier
decision of the Reference Court.
6. Indisputably, the lands of the original claimants have been
acquired for the public purpose. The respondent has declared on
purshish before the Reference Court to consider the market value
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of the lands in question as determined in the case of lands
acquired in Naredi - Bodka - Piplana Road Scheme. The said
purshish has been tendered on record at Exhibit 84. It transpires
from the bare perusal of the contents of the said purshish that the
award passed by Reference Court in the aforesaid matters of
acquisition, has been accepted by the State Government and as
per market value determined by the Reference Court, the
compensation has also been paid to the affected land owners of
the said matters.
7. On close reading of the impugned judgment and award as
recorded in para 20, it is evident that Section 4 Notification in the
aforesaid Land Reference Cases was issued on 12.09.1994,
whereas in the present case, the Notification under Section 4 was
issued on 03.10.1996. In such circumstances, the original
claimants - appellants herein are entitled for enhancement of the
award by applying 10% rise for every year. In fact, further reading
of the observations of the Reference Court indicates that the
market value of the land in question was accordingly computed at
the rate of Rs.10,759/- per Are in case of irrigated land and
Rs.8,023/- per Are in case of non-irrigated land. However, the
Reference Court has restrained itself from awarding higher
compensation by noticing restricted claims raised by the original
claimants for the amount of Rs.6,250/- per Are in case of irrigated
land and Rs.2,500/- per Are in case of non-irrigated land.
8. This approach of the Reference Court is against the settled
position of law as laid down by the Hon'ble Supreme Court in the
case of Ashok Kumar (Supra), the relevant observations of the
Hon'ble Supreme Court are reproduced as under:
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"9. In Bhag Singh and Others v. Union Territory of
Chandigarh2, this Court held that there may be situations
where the amount higher than claimed may be awarded to
the claimant. The Court observed -
"3. ... It must be remembered that this was not a
dispute between two private citizens where it would be
quite just and legitimate to confine the claimant to the
claim made by him and not to award him any higher
amount than that claimed though even in such a case
there may be situations where an amount higher than
that claimed can be awarded to 1 (2010) 11 SCC 665 2
(1985) 3 SCC 737 the claimant as for instance where
an amount is claimed as due at the foot of an account.
Here was a claim made by the appellants against the
State Government for compensation for acquisition of
their land and under the law, the State was bound to
pay to the appellants compensation on the basis of the
market value of the land acquired and if according to
the judgments of the learned single Judge and the
Division Bench, the market value of the land acquired
was higher than that awarded by the Land Acquisition
Collector or the Additional District Judge, there is no
reason why the appellants should have been denied
the benefit of payment of the market value so
determined. To deny this benefit to the appellants
would tantamount to permitting the State Government
to acquire the land of the appellants on payment of
less than the true market value. There may be cases
where, as for instance, under' agrarian reform
legislation, the holder of land may, legitimately, as a
matter of social justice with a view to eliminating
concentration of land in the hands of a few and
bringing about its equitable distribution, be deprived of
land which is not being personally cultivated by him or
which is in excess of the ceiling area with payment of
little compensation or no compensation at all, but
where land is acquired under the Land Acquisition Act,
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1894, it would not be fair and just to deprive the holder
of his land without payment of the true market value
when the law, in so many terms, declares that he shall
be paid such market value. ..."
10. In Krishi Utpadan Mandi Samiti v. Kanhaiya Lal, this
Court held that under the amended provisions of Section 25
of the Act, the Court can grant a higher compensation than
claimed by the applicant in his pleadings -
"17. Award being in this case between the dates
30.1982 and 24.09.1984 and as per the Union of India
and Anr. v. Raghubir Singh (Dead) by LRs. etc. (Supra),
the amended provisions would be applicable under
which there is no restriction that award could only be
upto the amount claimed by the claimant. Hence High
Court order granting compensation more than what is
claimed cannot be said to be illegal or contrary to the
provisions of the Act. Hence the review itself, as is
confined for the aforesaid reasons, has no merit."
11. Further, in Bhimasha v. Special Land Acquisition Officer
and others4, a three-Judge bench reiterated the principle in
Bhag Singh (supra) and rejected the contention that a higher
compensation than claimed by the owner in his pleadings
cannot be awarded by the Court. In that case, the High Court
had concluded that although the market price of the land was
Rs 66,550/- per acre, since the appellant had only claimed
compensation at the rate of Rs. 58,500/- per acre in his
pleadings, therefore he could only be awarded compensation
limited to his claim. This Court, while reversing the decision
of the High Court, awarded the petitioner the market value,
i.e., Rs. 66,550/- per acre thereby holding that the award
would not be limited to the claim made by him.
12. In the case of the appellants herein, it is an admitted
position that the properties do not abut the national highway.
Admittedly, it is situated about 375 yards away from the
national highway and it appears that there is only the narrow
Nahan Kothi Road connecting 4 (2008) 10 SCC 797 the
properties of the appellants to the national highway.
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Therefore, it will not be just and proper to award land value of
Rs.250/- per square yard, which is granted to the property in
adjoining village. Having regard to the factual and legal
position obtained above, we are of the considered view that
the just and fair compensation in the case of appellants
would be Rs. 200/- per square yard."
9. In light of the aforesaid legal position, we find force in the
submissions of the learned advocates on record. The impugned
judgment and award of the Reference Court is hereby modified to
the extent that the market value of the lands in question is fixed at
the rate of Rs.10,769/- per Are in case of irrigated land and
Rs.8,083/- per Are in case of non-irrigated land. Accordingly, the
appellants are held entitled to all the statutory benefits.
10. Let enhanced amount of compensation be paid and
deposited by the respondents before the Nazir of the concerned
Reference Court within a period eight weeks from the date of
receipt of this order. The Reference Court is thereafter, directed to
disburse the amount by issuing cheque drawn in name of
appellants - claimants subject to due verification of the identity of
each of the original claimants. The amount, which may be
deposited before the Nazir of the concerned Reference Court may
be disbursed after adjusting the deficit Court fees, if any.
11. With this observation, present Appeals succeed and are
hereby allowed.
(BIREN VAISHNAV, J)
(NISHA M. THAKORE,J)
Y.N. VYAS
