Shankarbhai Ishwarbhai Patel vs Special Land Acquisition Officer and 1

R.M. Chhaya, J.—All these appeals u/s 54 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") are directed against the common judgment and award rendered in Land Reference Case Nos. 2132 of 1991 to 2136 of 1991 by the Assistant Judge, Mehsana dated 23.3.1995. Short facts arising out of these appeals are enumerated hereunder:-

1.1 The appellants are original owners of land bearing survey Nos. 119/1 part, 119/3, 119/4, 119/5, 119/6, 119/7, 124 part and 120 situated at Village Ambavpura, Taluka Kadi, District Mehsana. It appears from the record that respondent No. 2 -Oil and Natural Gas Commission through its authorised officer i.e. Deputy General Manager made a proposal on 28.1.1988 before the competent authority of the State of Gujarat for acquisition of the lands-belonging to the appellants for the public purpose of drilling. Negotiations failed and the lands belonging to the appellants were sought to be acquired by the State Government. The notification u/s 4 of the Act came to be published in the official gazette on 17.6.1989. Thereafter, the said notification was published in accordance with law at other places and the same was published in Gujarati daily - Gandhinagar Samachar and in English daily -Western Times on 22.8.1989 and thereafter, the same came to be published at the office of Talati and at site on 5.4.1990. After the said publication, a declaration as provided u/s 6 came to be published on 21.5.1990. It appears from the record that the said declaration was also published in accordance with law by the Land Acquisition Officer. The Land Acquisition Officer thereafter proceeded in accordance with law and after issuing notice as provided u/s 9 and after considering the claims raised by the appellants, passed an award as provided u/s 11(1) of the Act and declared the same on 30.3.1991, whereby the Land Acquisition Officer fixed the market value of the lands under acquisition at Rs. 3/- per sq. mtr.

1.2 The appellants, being aggrieved by the said award, lodged their objections before the Land Acquisition Officer and made a demand of Rs. 20/- per sq. mtr. The Land Acquisition Officer in turn referred the said Reference Applications to the Reference Court at Mehsana which came to be registered as Land Reference Case Nos. 2132 of 1991 to 2136 of 1991.

1.3 It appears from the record that the appellants produced documentary evidence more particularly the extracts of village form No. 7/12, copy of the award passed by the Reference Court in Land Reference Case Nos. 130 of 1990 to 132 of 1990 in respect to the lands acquired for the same purpose by the same acquiring body for the lands situated at Pansar, the adjoining village, wherein with reference to Section 4 notification having been published on 19.5.1983, the Reference Court has fixed the market value of the lands situated at Village Ambavpura i.e. the adjoining village as in the present appeals. The appellants have also relied upon the award passed by the Special Land Acquisition Officer dated 1.6.1988 and 19.1.1988 for the lands situated at village Chhatral and Pansar (Exh. 22 and 23). The appellants through one of the claimants-Babubhai Jivabhai Patel also gave oral evidence being Exh. 21.

1.4 It further appears from the record that as against this, the acquiring body i.e. ONGC has not adduced any documentary evidence. On behalf of the Special Land Acquisition Officer, its Deputy Mamlatdar has been examined. Except that, no evidence is led by the acquiring body or the Special Land Acquisition Officer.

1.5 The Reference Court by the impugned judgment and award dated 23.3.1995 has determined the market value at Rs. 12/- per sq. mtr. and has also granted statutory benefits under Sections 23(1)(A), 28 and 30. Being aggrieved by the aforesaid judgment and award, the original claimants have preferred these appeals.

Heard Mr. N.S. Shevade, learned advocate for the appellants, Ms. Trusha Mehta, learned AGP for respondent No. 1 - State and Mr. Pranav Trivedi, learned advocate for M/s. Trivedi & Gupta for respondent No. 2-acquiring body.

Mr. Shevade, learned advocate for the appellants has taken this Court through the impugned judgment and award. Mr. Shevade contended that the Reference Court has erred in coming to the conclusion that the market value of the land in question is Rs. 12/- per sq. mtr., inasmuch as, having relied upon the previous award passed by the Reference Court, no increase is. considered by the Reference Court as in the award relied upon, Section 4 notification was dated 19.5.1983, whereas in the instant case, Section 4 notification is 17.6.1989. Mr. Shevade, therefore, submitted that even if the conservative view is taken and 10% rise is given instead of 12%, the claimants would be entitled to compensation at the rate of Rs. 22/- per sq. mtr. Mr. Shevade, however, candidly submitted that- as the appellants in their Reference Applications have raised a demand of Rs. 20/- per sq. mtr., at least the Reference Court ought to have awarded compensation at the rate of Rs. 20/- per sq. mtr. Mr. Shevade also relied upon the other two awards passed by the Special Land Acquisition Officer at Exhs.22 and 23 and submitted that considering the aforesaid two awards, wherein one of it is a consent award, the price of the land under acquisition on the reckoning date i.e. as on the date of Section 4 notification in the present case would be more than what has been claimed by the appellants. It is, therefore, submitted that the Reference Court has misapplied the previous award. It is contended that considering the fact that the previous award at Exh. 20 is of the adjoining Village Pansar, wherein the lands were acquired for the same purpose for the same acquiring body, even if that is taken as the best example for determination of market value, the claimants are entitled to at least Rs. 20/- per sq. mtr. as per their Reference Applications. It is submitted that the appellants have lost their valuable lands and the Reference Court has, while correctly applying the best piece of evidence in conclusion, wrongly awarded Rs. 12/- per sq. mtr. instead of Rs. 20/- per sq. mtr. It is, therefore, submitted that the appeals deserve to be allowed in toto.

Per contra, Ms. Trusha Mehta, learned AGP for respondent No. 1 - State has supported the impugned judgment and award. Though no specific plea has been raised by the learned AGP, it was contended that Ambavpura is a small village with scarce facility of public amenities and considering its geographical location which is away from highway, the Land Acquisition Officer has considered all relevant factors while passing the judgment and award and the Reference Court has also given appropriate findings to the effect that the market value of the lands in question is Rs. 12/- per sq. mtr. It is, therefore, contended that the appeals are devoid of any merits and the same deserve to be dismissed.

Mr. Pranav Trivedi, learned advocate for respondent No. 2 - acquiring body has also supported the impugned judgment and award. Mr. Trivedi submitted that there is no error in the findings arrived at by the Reference Court and the appeals deserve to be dismissed.

No other or further contentions are raised by any of the learned advocates appearing for the respective parties.

The Court has considered the submissions made by the learned advocates appearing for the respective parties. The Court has also perused the original record and proceedings of the Reference Court and also taken into consideration the impugned judgment and award.

On perusal of the award passed by the Land Acquisition Officer, while coming to the conclusion that the market value of the land under acquisition is Rs. 3/- per sq. mtr., the Land Acquisition Officer has considered the geographical location of village Ambavpura and has also considered the sale instances.

On perusal of the evidence on record, it appears that one of the claimant - Babubhai Jivabhai Patel has been examined at Exh. 21. The said witness has deposed that population of village Ambavpura is approximately 2000 to 2500. It has also been deposed by the said witness that there is Government hospital, high schools, building of the Gram Panchayat, water works, street lights, cooperative societies, cooperative milk societies, facilities of telephone and has also further deposed that the village Ambavpura is well connected with pakka roads. It has also been deposed by the said witness that Kalol which is a Taluka headquarter is at a distance of 7 kms., whereas Chhatral is at a distance of 1.5 to 2 kms. where GIDC is situated. The said witness has further deposed that the land under acquisition is at a distance of 500 mtr. from Chhatral GIDC. He has also deposed that in the year 1984, the lands situated at Chhatral were acquired for the purpose of establishment of industrial estate by Gujarat Industrial Development Corporation at Rs. 16.75 per sq. mtr. by way of a consent award. The said witness has also deposed that there are about 200 factories in the GIDC, out of which, 20 are big industries. The witness has also deposed that in case the acquisition by the respondent No. 2, market value was fixed at Rs. 21/- per sq. mtr. by the Land Acquisition Officer. He has also stated that the land under acquisition is very fertile and in a year, three crops are yield. In cross-examination, it is found that nothing is brought out by the State Government.

On perusal of the impugned judgment and award, it appears that the reliance is placed for on the previous award passed in Land Reference Case Nos. 130 of 1990 and allied matters, whereby the Reference Court has awarded Rs. 10/- per sq. mtr. to the claimants as the market value of the land under acquisition situated at village Pansar (Exh. 20). The Reference Court has also come to the conclusion that the award passed by the Special Land Acquisition Officer for the lands acquired at village Chhatral can also be relied upon. It appears that according to the aforesaid awards at Exhs.22 and 23, the price was determined at Rs. 16.75 per sq. mtr. and Rs. 21/- per sq. mtr. respectively. It is found that the Reference Court having relied upon the yield method also, after applying 16 multiplier, came to the conclusion that in all probabilities, the value of the land would be more than Rs. 16/- per sq. mtr. and has conclusively came to the conclusion that the amount of compensation awarded by the Land Acquisition Officer at Rs. 3/- per sq. mtr. is less, however, has determined the market value of the lands under acquisition at Rs. 12/- per sq. mtr.

On inquiry it was found that the award at Exh. 20 has not been challenged by the acquiring body. It is also an admitted position that the acquiring body or the Special Land Acquisition Officer has not adduced any other evidence.

Considering the submissions made by the respective parties and on perusal of the impugned judgment and award, this Court is of the opinion that the previous award i.e. Exh. 20 has been rightly relied upon by the Reference Court as also in opinion of this Court, the same is best piece of evidence as village Pansar is the adjoining village, wherein the lands were acquired for the same purpose by the same acquiring body. On perusal of the aforesaid award, the geographical location as well as the surrounding development as it exist then is almost similar to that of village Ambavpura i.e. the lands under acquisition and considering the said issue as well as the other issues, the Reference Court has determined the market price at Rs. 12/- per sq. mtr. It, therefore, transpires that the Reference Court has rightly relied upon the previous award Exh. 20. However, while applying the same, the Reference Court has not considered the fact that in the judgment and award Exh. 20, Section 4 notification was dated 19.5.1983, whereas in the instant case, Section 4 notification is dated 17.6.1989. It, therefore, goes without saying that the price of 1983 and the price of 1989 would be different, showing upward trend.

The Hon''ble Supreme Court in the case of Om Prakash (D) by Lrs. and Others Vs. Union of India (UOI) and Another, has observed thus:-

In the circumstances, the High Court was justified in working out the fair market value of the lands in question on the basis of Rs. 16,750/- per bigha as on 30-10-1963. The High Court noticed that in several judgments of this Court escalation at different and varying rates i.e. 6% per annum from 1959 to 1965, @ 10% per annum for every year from 1966 to 1973 and @ 12% per annum from 1975 had been considered to be reasonable increase to arrive at the fair market value, assuming that the pace of escalation during this period was normal for the entire period from 1959 onwards. Since no material was placed on record to show that there was any abnormality during the period, the High Court applied the same principle to the facts and circumstances before it, and accepted increase of 10% every year progressively from 1963 to 1973 and thereafter @ 12% every year progressively up to the date of acquisition. The High Court noticed in the judgment that if escalation is allowed on this basis, the fair market value would be Rs. 1,28,889/- per bigha. In case progressive increase is allowed @ 10% for the entire period, the amount will work out to Rs. 1,08,397/- per bigha. Allowing appreciation @ 12% for every year, not cumulatively, but at a flat rate of 12% per annum from 1963 to 1983, the amount would work out to Rs. 56,112/- per bigha. The High Court in its judgment under appeal pointed out that the market value of Rs. 16,750/- per bigha fixed in the case of Dharambir and others v. Union of India was not in respect of commercial land but only of agricultural land. That the market value of agricultural land is much lower than that of land suitable for commercial purposes, is trite. After having worked out the market value of the lands on various bases and keeping in view the fact that between 8-12-1982 and 2-6-1983, the lands in question had at least some commercial potentiality, the High Court decided that the fair market value of all categories of lands situated in the villages in question as on the date of acquisition should be fixed at Rs. 82,255/- per bigha.

At this juncture, it would be advantageous to refer to the Division Bench of this Court in the case of O.N.G.C. Ltd. Vs. Speicial Land Acquisition Officer has observed thus: -

Now, if we go through the judgment as aforesaid, it would be clear that in earlier matters, the notification u/s 4 of the said Act was issued on 27-5-1982 whereas notification u/s 4 of the said Act has been issued in the present matters on 10-10-1985. This would mean that there is a gap of more than 3 years. The amount fixed as market value by the Hon''ble the Supreme Court at Rs. 38/- can be rounded off of Rs. 40/- a, it can be said that the market value of the land at village Heduva Hanumanth should be treated to be at Rs. 40 per sq. meter in the year 1982. It is well settled that there would be an increase of Rs. 10% in the market value of lands every year. Since in the earlier matters, notification u/s was issued no 27-5-1982 and since more than 3 years have been passed thereafter, one can reasonably consider an increase by 40% (4 x 10). If the market value of the lands at village Heduva Hanumanth in 1982 is treated to be Rs. 40/- per sq. meter, then considering 10% increase per year, the total increase would come to Rs. 16/- per sq. meter. In other words, the market value of the land at village Heduva Hanumanth in the year 1985 will be more than market value of the land at village Heduva Hanumanth in the year 1982. To be more clear, if the market value of the land at Palvasana can be fixed at Rs. 38/- per sq. meter, then by adding Rs. 16/-, the market value of the land at village Heduva Hanumanth in the year 1988 can be fixed at 54/- per sq. meter (Rs. 38 + 16).

Similarly, Division Bench of this Court in case of State of Gujarat and Another Vs. Amaji Mohanji Thakore, , wherein the Division Bench came to the conclusion that every year 10% rise by way of appreciation is to be considered while determining the market value. In addition to the aforesaid principle, it has come on evidence that after the lands were acquired for the purpose of GIDC, about 200 factories have come up at Village Chhatral which is also adjoining and very near to the lands under acquisition and therefore, because of such geographical location and proximity to the area of development, this land has assumed semi urban nature and on this count also, the appellants would be entitled to more amount than what has been awarded by the Reference Court in the impugned judgment and award. As aforesaid, having rightly come to the conclusion that the best method is to rely upon the previous award, as Reference Court has erred in not giving appropriate rise to the market price determined by the previous award Exh. 20 considering the time gap of almost six years of the date of reckoning i.e. Section 4 notification. Mr. Trivedi, learned advocate for the acquiring body has not been able to point out whether Exh. 20 has been challenged before this Court.

Considering the aforesaid set of circumstances as per the evidence on record as well as the decisions of the Hon''ble Supreme Court as well as this Court, the market value for the lands under acquisition can be based upon the previous award Exh. 20. However, considering the fact that Section 4 notification in the reference at Exh. 20 was dated 19.5.1983, considering 10% rise, the same would come to Rs. 22/- per sq. mtr. However, in the instant case, as observed above, as the claimants have claimed only Rs. 20/- per sq. mtr. as compensation in the Reference Applications, the appellants cannot now enhance the claim.

In the result, the appeals deserve to be accepted. The market value of the land in question would be Rs. 22/- per sq. mtr., but in the facts and circumstances arising out of these appeals, the appellants would be entitled to only Rs. 20/- per sq. mtr.

The appellants are also entitled to statutory benefits under Sections 23(1)(A), 28 and 30 as the Reference Applications were pending even on the date on which the case of Sunder Vs. Union of India, was decided. It may, however, be noted that recently the Hon''ble Supreme Court in the case of Iyasamy and Another Vs. SPL. Tahsildar, Land Acquisition, has decided that the claimants would be entitled to interest on solatium from the date on which the Hon''ble Supreme Court decided the case of Sunder (supra), wherein it has been observed thus:-

The learned counsel for Appellants in Civil Appeal Nos. 1760-1761/04 are also claiming interest on solatium and additional compensation as the impugned order of the High Court was pronounced prior to judgment in Sunder Vs. Union of India, . Since the present appeal was pending before this court, therefore, the ratio of Sunder v. Union of India would entitle the appellants to receive interest on solatium u/s 23(2) and additional compensation u/s 23(1A) in terms of the said decision. It was decided in Gurpreet Singh Vs. Union of India (UOI), that such interest can be claimed only from the date of the judgment in Sunder (supra) i.e. 19.9.2001. Therefore, the appellants in the Civil Appeal Nos. 1760-1761/04 shall be entitled to such interest for the period after 19.9.2001, not the period prior to the same.

Hence, it is clarified that the appellants would be entitled to the benefit of interest of solatium from 19.9.2001, the date on which the case of Sunder (supra) was decided. For the foregoing reasons, the appeals are allowed in the above terms. The impugned judgment and award stands modified accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. Additional amount shall be deposited by the respondents within a period of 8 (eight) weeks from the date of receipt of the present judgment and order of this Court. Registry is directed to send back the record and proceedings to the Reference Court. Registry is further directed to place a copy of this judgment and order in connected matters.