Desai Mangibhai Dhirabhai vs State of Gujarat and Another

J.C. Upadhyaya, J.—All these appeals arise out of common judgment and award rendered by learned 6th Addl. Senior Civil Judge, Himmatnagar in Land Reference Case No. 6/1996 to 22/1996 dated 27.4.2007; whereby, the reference Court fixed the market value of the open plots under acquisition @ Rs. 45 per sq.mtr.

There is no dispute that the open plots under acquisition were converted into N.A. Plots which were situated in residential area at village: Bhadresar, Tal. Idar, District: Sabarkantha. The plots came to be acquired for the public purpose of Guhai Jalagr Yojana. The Notification u/s 4 of the Land Acquisition Act (herein after referred to as ''the Act'') came to be published on 29.9.1992 and Notification u/s 6 of the Act came to be published on 1.5.1993. The Land Acquisition Officer delivered his award u/s 11 of the Act on 28.2.1994 and offered the compensation @ Rs. 5 per sq.mtr. The claimants felt that the amount by way of compensation which came to be offered was less and quite inadequate and therefore, they preferred reference cases; wherein, they claimed the compensation @ Rs. 400/- per sq.mtr.

Before the reference Court, the evidence of one of the claimants, namely, Virsangbhai Prabhuji Desai, was recorded. No other witness was examined. On behalf of the opponents, one S.P. Bhagora came to be examined. The claimants by way of documentary evidence produced the copies of certain sale deeds from Exh.45 to Exh.49, and the certified copy of award rendered by Addl. District Judge, Sabarkantha, Himmatnagar in Land Reference Case No. 1180/1988 and allied matters came to be produced at Exh.53. Reference Court evaluated and examined the oral and documentary evidence on record and came to the conclusion that the comparable sale instances produced by the claimants were of the same village. However, sale instances produced at Exh.46 to Exh.49 contained the transactions which took place after the publication of the Notification u/s 4 of the Act. The reference Court took into consideration the comparable sale instances at Exh.45; wherein, the transactions took place on 26.11.1982 which was much prior to the date of the Notification u/s 4 of the Act.

Reference Court observed that in the same village: Bhadresar by virtue of sale transaction Exh.45, 73.39 Sq. Mtr. plot came to be sold at the consideration of Rs. 9,500/-, meaning thereby, the plot fetched Rs. 129/- per sq.mtr. The reference Court then considered the comparable award Exh.53; wherein, along with other agricultural lands, one of the claimants, who preferred Land Reference Case No. 1267 of 1988, had lost his residential open plot in the said acquisition and the reference Court fixed Rs. 100/- per sq.mtr. as price of the open plot. However, in the impugned judgment and award, the reference Court observed that the applicants did not produce any evidence to show that said plot and the plots in the comparable award were similar. Ultimately, the reference Court calculated the amount of compensation @ of Rs. 45/- per sq.mtr. Being aggrieved and dissatisfied with the compensation awarded by the reference Court, original claimants preferred these appeals and claimed enhancement of the compensation in all Rs. 145/- per sq.mtr. and accordingly, the Court fees were paid.

Mr.R.K. Mansuri, learned Counsel representing the Appellants submitted that the reference Court erred in not relying upon the comparable award Exh.53; whereby, one open plot ad-measuring 64 sq.mtr. was acquired and the said plot was situated in the same village and the reference Court awarded the compensation @ 100/- per sq.mtr. Mr. Mansuri, learned Counsel submitted that in the said case, the Notification u/s 4 was issued on 20.3.1986 whereas, in the cases on hand, the Notification u/s 4 of the Act issued on 29.9.1992. It is, therefore, submitted that as a matter of fact, the claimants are entitled to get enhancement and if it is calculated @ 10% per annum and considering the difference of 6 years, the amount would come much more than the amount claimed by the claimant but since the claimants have restricted their claim of compensation @ 145/- per sq.mtr., their claim of additional amount of compensation @ Rs. 100/- per sq.mtr. (Rs. 100 per sq.mtr. Claimed plus additional amount Rs. 45/- per sq.mtr. awarded by the reference Court) and therefore, it is submitted that correct market value of the plots under acquisition should have been fixed @ Rs. 145/- per sq.mtr.

Mr. Mansuri, learned Counsel submitted that the comparable award Exh.53 was challenged by the State Government before this Court and it is submitted that so far as the amount of compensation which came to be fixed by the reference Court in Land Reference Case No. 1267/1988 came to be upheld by this Court vide order dated 12.2.2004 rendered in First Appeal No. 1905 to 1918/1993 and allied appeals. Mr. Mansuri passed on copy of the said judgment rendered by this Court on 12.2.2004. Accordingly, it is submitted that the comparable award Exh.53 so far as the residential open plots situated in the same village is concerned, came to be confirmed by this Court. It is, therefore, submitted that his appeals may be allowed and the Appellants shall be held to be entitled to claim compensation @ Rs. 145/- per sq.mtr. less the amount already fixed by the reference Court (Rs. 145 - Rs. 45).

Ms. Mathur, learned AGP representing the Respondent-State vehemently opposed these appeals and submitted that considering the impugned judgment and award rendered by reference Court, the reference Court did take into consideration the comparable award Exh.53 and the same was made base for arriving at a decision of just and fair amount of compensation. It is submitted that, however, the reference Court has rightly observed that the claimants failed to prove that the open plot which came to be acquired of the same village by Notification u/s 4 of the Act in the year 1986 and the disputed plots involved in these appeals are identical and similar. It is submitted that in absence of such evidence, the reference Court was perfectly right in awarding the compensation @ Rs. 45/- per sq.mtr.

Ms. Mathur, learned AGP further submitted that reference Court has taken into consideration the statutory amounts which the claimants were entitled to claim u/s 23(1A), 23(2) of the Act and even the running interest came to be awarded in light of the provisions contained u/s 28 of the Act. In that view of the matter, it is, therefore, submitted that all these appeals may be dismissed.

At the outset, perusing the impugned judgment and award rendered by the reference Court, it transpires that reference Court took into consideration the comparable sale instances as well as the comparable award, certified copy of which was produced before the reference Court at Exh.53. Comparable sale instances were produced from Exh.45 to 49. However, so far as the sale transactions involved in the sale instances produced from Exh.46 to 49 are concerned, these transactions took place after the date of Notification u/s 4 of the Act. So far as the Exh.45 sale instance is concerned, an open plot situated in the same village came to be sold on 26.11.1982 at the valuation of Rs. 9,500/-, the said plot was admeasuring 73.39 sq.mtr. and accordingly, price was fixed @ Rs. 129/- per sq.mtr. The said sale transaction took place almost 10 years prior to the date of Notification in the instant case u/s 4 of the Act.

So far as the comparable award Exh.53 is concerned, it transpires that certain agricultural lands as well as the residential open plot situated in the same village i.e. Bhadresar came to be acquired by virtue of the publication of Notification u/s 4 of the Act on 20.3.1986. In the said group of land reference cases, so far as the land reference Case No. 1264/1988 was concerned, the open plot situated in the village itself of the claimant of said land reference case was acquired. Perusing para 11 of the certified copy of the comparable award Exh.53, it transpires that the reference Court fixed the amount of compensation @ Rs. 100/- per sq.mtr. Further, it would be fruitful to note that while arriving at such conclusion, said reference Court relied upon the very sale transaction which took place on 26.11.1982 (the copy of sale deed produced in the instant case at Exh.45) the said open plot was admeasuring 64 sq.mtr. The reference Court, however, came to the conclusion that the claimants in the instant case failed to show that their open plots which went into acquisition were identical and similar to the open plot for which the land reference case No. 1264/1988 was filed.

Re-appreciating and reevaluating the evidence on record in the context of observation made by the reference Court in the impugned judgment, this Court is of the opinion that the reference Court committed error in arriving at the conclusion that the claimants were entitled to get compensation of their open plots @ Rs. 45/- per sq.mtr. It is pertinent to note that the open plot for which land reference Case No. 1267/1988 was filed, the said open plot was situated in the very village itself. It is further pertinent to note that pursuant to the publication of the Notification u/s 4 of the Act dated 20.3.1986, said plot was acquired; whereas, in the instant case, the Notification u/s 4 of the Act came to be published on 29.9.1992. Under such circumstances, the reference Court failed to consider this vital aspect of the matter that there was gap of 6 years between the two events. Furthermore, the award passed by the reference Court in Land Reference Case No. 1267/1988 and other allied matters came to be challenged by the State by preferring group of appeals bearing First Appeal No. 1905 to 1918 of 1993 and allied matters and all those appeals came to be disposed of by this Court by common judgment and order dated 12.2.2004. Perusing the copy of said judgment passed on by Mr. Mansuri, learned Counsel for the Appellants and more particularly, considering the para-6 in the said judgment, this Court took into consideration the amount of compensation determined by the reference Court in Land Reference Case No. 1267 of 1988 and observed that in said case, the reference Court had awarded Rs. 100/- per sq.mtr. for a small piece of land ad-measuring 64 sq.mtr. and this Court did not find any reason to interfere with the award passed by the reference Court. Thus, the compensation which came to be fixed for the open plot situated in the same village by the reference Court @ Rs. 100/- per sq.mtr. came to be upheld by this Court.

In above view of the matter, it can safely be said that in the impugned judgment and award, the reference Court committed error in coming to the conclusion that the claimants were entitled to get compensation of their open plots acquired in this case @ Rs. 45/- per sq.mtr. The Appellants-claimants in the instant appeals claimed that they are entitled to receive compensation @ 145/- per sq.mtr. less the amount already awarded by the reference Court. Reference Court awarded the compensation @ Rs. 45/- per sq.mtr. and therefore, the claimants in these appeals claimed Rs. 100/- per sq.mtr. as additional amount of compensation. Considering facts and circumstances of the case and more particularly, considering the fact regarding the size of the land acquired in the year 1986 and the facts and circumstances of the instant case, it would be in the interest of justice if Appellants-claimants are awarded compensation @ Rs. 140 per sq.mtr. of their open plots which went in the acquisition. Reference Court awarded the compensation @ Rs. 45/- per sq.mtr. and therefore, the claimants are entitled to recover the additional amount of compensation @ Rs. 95/- per sq.mtr.

Appeals are accordingly deserve to be partly allowed. The additional amount of compensation which the claimants are entitled to recover shall be paid to them @ Rs. 95/- per sq.mtr. with all statutory benefits available to the Appellants-claimants as per Section 23(1A), Section 23(2) of the Land Acquisition Act on the additional amount of compensation. The Appellants-claimants shall be entitled to interest as provided u/s 28 of the Act.

For the foregoing reasons, the appeals are partly allowed with no order as to costs.