Gujarat Energy Transmission Corporation Ltd. vs Savitaben Shanabhai Parmar and Others

Jayant Patel, J.—In the group of First Appeals No. 1125/11 to 1140/11, Admit and Mr. Chirag Patel appears with Mr. Oza and waives notice for original claimants-Respondents herein.

As in all the appeals, common questions arise for consideration, they are being considered by this common judgment.

The short facts in the group of First Appeals No. 3379/09 to 3396/09 are that the lands at village Kumetha, Taluka Vaghodia were acquired for the purpose of Gujarat Energy Transmission Corporation Ltd. under the Land Acquisition Act (hereinafter referred to as ''the Act''). The Notification u/s 4 of the Act was published on 16.05.1991. Thereafter, the Notification u/s 6 of the Act was published on 02.01.1992 and the award was published by the Special Land Acquisition Officer u/s 11 of the Act, whereby he awarded compensation at Rs. 2.50 per square metre. As the claimants/land owners were not satisfied with the compensation, they raised the dispute u/s 18 of the Act which ultimately came to be referred to the Reference Court for adjudication being Land Reference Case Nos. 782 to 799 of 1993 and they demanded the compensation at Rs. 55/- per square metre of the lands in question. The Reference Court at the conclusion of the reference, awarded compensation at Rs. 45/- per square metre plus the statutory benefit of increase in the price u/s 23(1A) of the Act, solatium u/s 23(2) of the Act and interest u/s 28 of the Act. It is under these circumstances, the present appeals before this Court.

In the group of First Appeals No. 1125/11 to 1140/11, the relevant facts are that, the lands for the purpose of Gujarat Energy Transmission Corporation Ltd., Appellant herein, were acquired under the Land Acquisition Act of village Amaliya. The Notification u/s 4 of the Act was published on 01.03.1988 and the notification u/s 6 of the Act was published on 06.05.1989. The award was passed by the Special Land Acquisition Officer on 31.03.1990. He awarded compensation at Rs. 2/- per square metre. The original land owners/claimants were not satisfied with the compensation and they raised the dispute u/s 18 of the Act and initially demanded compensation at Rs. 8/- square metre and thereafter, enhanced the demand to Rs. 70/- square metre. The said dispute were referred to the Reference Court and the Reference Court at the conclusion of the reference, by the impugned award, granted compensation at Rs. 48/- per square metre plus the increase in the price u/s 23(1A) of the Act, solatium u/s 23(2) of the Act and interest u/s 28 of the Act. It is under these circumstances, the present appeal before this Court.

We have heard Mr. Sinha, learned Counsel appearing for the Appellant in the group of First Appeals No. 3379/09 to 3396/09 and Ms. Desai for the Appellant in First appeal Nos. 1125 to 1140/11. We have heard Mr. Patel for all the original claimants-original Respondents herein and Ms. Thakkar, learned AGP for the Special Land Acquisition Officer and State of Gujarat.

In the group of First Appeal for the acquisition of the land at village Kumetha is concerned, the perusal of the impugned judgment and the award of the Reference Court shows that the Reference Court has relied upon the earlier decision dated 10.05.2007 in Land Reference Case No. 963/90, whereby for the acquisition of the land at the very village Kumetha, compensation was awarded at Rs. 40/- per square metre. Thereafter, the Reference Court has considered the appreciation of Rs. 5/- and has awarded the compensation at Rs. 45/- per square metre.

Mr. Patel, learned Counsel appearing for the original claimants submitted that the decision upon which the Reference Court has relied upon in Land Reference Case No. 963/90 and allied matters has been confirmed by the learned Single Judge of this Court in the group of First Appeal No. 379/09 to First Appeal No. 388/09 decided on 06.03.2009. It has been therefore submitted that the appeals deserve to be dismissed.

Whereas, the learned Counsel for the Appellant contended that the Special Land Acquisition Officer had rightly passed the Award on the basis of the material available for sale instances and therefore, the award passed by the Reference Court is erroneous.

It is not the case of the Appellant that any party to the Sale Deed upon which the reliance was placed by the Special Land Acquisition Officer in the Award were examined to prove that there was a willing buyer and willing purchaser. Further, the sale instances is one of the method for assessment of the market price, but by now it is well settled that if there is a decision for assessment of the market price of the land at the very village or the nearby area of the same Court or the higher Court, the same can be considered as one of the valid base for assessment of the market price. Under the circumstances, if the reference Court has relied upon its earlier decision in respect of the acquisition of the land of the very village Kumetha, such an approach on the part of the Reference Court cannot be said to be erroneous.

Had it been a case where the decision upon which the reliance was placed by the Reference Court was modified by any higher forum and thereafter the compensation was reduced, it might stand on a different footing. In the present case, as contended by the learned Counsel for the claimants, the decision which has been relied upon by the Reference Court at paras 18 and 19, has been confirmed by the learned Single Judge of this Court in First Appeals No. 379 to 388/09, decided on 06.03.2009. We may record that the learned Single Judge in the above referred decision observed thus, relevant of which reads as under:

I have considered submissions made by both learned advocates. I have also perused impugned award as well as documentary evidence produced by both parties. Considering award in question, reference Court has come to conclusion that claimants are entitled for Rs. 4,00,000.00 per hectare, means Rs. 4 lacs is considered to be market price of land in question. Issues framed by reference Court were whether award made by land acquisition officer is not fair and adequate, if yes, what additional compensation the claimants are entitled to. Reference Court held that the compensation awarded by special land acquisition officer is not fair and adequate and, therefore, made award as aforesaid. Reference Court has examined comparability between two villages as aforesaid. Relevant discussion is made by reference Court at page 9, from para 10 to 12 which is quoted as under:

Issues No. 1 and 2:

Heard the learned Advocate Mr. J.B. Patel for the claimants, Learned Government Pleader Mr. R.N. Pandya for the opponents Nos. 1 and 2 and Mr. A.M. Desai, Ld. Advocate for the opponent No. 3.

Issues No. 1 and 2 both are bound co-related and, hence, they are discussed and decided together. Claimants herein have challenged land acquisition award passed in Compensation Case No. 85/85 and stated that the Land Acquisition Officer has not taken into consideration several factors, which are required to be considered while fixing price for compensation for the lands acquired and it is submitted that the whole base of the compensation, which land acquisition officer has based are several sale instances cited in award which are of previous years, which is not relevant on the date of notification u/s 4, which Land Acquisition Officer has considered as basis for the market price. It can be seen that sale instances have prompted Land Acquisition Officer to pass his decision on market price. It can be taken judicial notice of that after 1980, there are briskly hike in price of land and as the Baroda District, which is just adjoining Vadodara City, it can be well presumed that lands are bound to fetch more price. This aspect appears to have overlooked by the land acquisition Officer. It is true that the Narmada Canal Project is a Project for the benefit of public at large, and, therefore, future price hike and variation are required to be fixed on other count. In this case, though in the oral deposition, the claimant has stated several other factors regarding the crops from the agriculture but at the time of arguments, the Ld. Advocate for the claimant has relied upon Exh. 36 and Exh. 50. Exh. 36 is a certified copy of the judgment in LR Case No. 110/89 which was given by 2nd Extra Assistant Judge, Vadodara on 7.3.1996 wherein the Hon''ble 2nd Extra Assistant Judge, Vadodara has awarded a sum of Rs. 80,000.00 per hector towards actual market price of the acquired lands and in that case, the notification u/s 4 was published on 25.9.1985. Whereas, the claimants have relied on the judgment Exh. 50 in LR Case No. 543/90 given by the 8th Jt. Civil Judge (SD) Vadodara on 18.8.2004, wherein, the Hon''ble Court has awarded a sum of Rs. 4,00,000.00 per hector as actual market price.

Now, considering the facts and circumstances and evidence on records, the opponents have relied on the judgment in First Appeal No. 2151 to 2168 of 2005 dtd. 4.8.2005 given by the Hon''ble High Court of Gujarat at Ahmedabad, and the said appeals were filed by aggrieving the judgment given by the 5th Jt. Civil Judge, (SD) Vadodara on 30.11.2002 in LR Case No. 165 to 182 of 1983 and in that case, the notification u/s 4 was published on 18.6.1981. Now, looking to the evidence produced by the claimant''s side Exh. 50 which is a copy of the judgment in LR Case No. 499/90 to 550/90 dtd. 18.8.2004, and in that case, the Notification u/s 4 was published on 20.8.1986 whereas in the present case, the notification u/s 4 was published on 16.1.1986. So, the evidence Exh. 50 is required to be taken into consideration for fixing the actual market price of the present LR Case Cases, as there is only two months span of time which is there in the notification u/s 4 of both the cases. So, it is more relevant to take into consideration Exh. 50 than Exh. 36 in fixing the actual market price of the acquired lands.

Considering the evidence on record, it can be said that the market value of the land of village Kumetha at the time of acquisition and before acquisition was more than the amount claimed by the claimants. This ratio is also laid down by the Hon''ble High Court of Gujarat in the pronouncement reported in the case of Special Land Acquisition Officer and Another Vs. Shantibhai Jivabhai Patel, and it is held that "the market value be considered by the authority of the Court concerned, which is as on the date of publication of notification u/s 4 of the Land Acquisition Act, 1894.

The Ld. Advocate for the claimants has argued that the Land Acquisition Officer could have considered the reasonable amount in award though he has not done so and he has calculated merely on the basis of surmises on certain sale transactions of low prices therefore, compensation awarded to claimants are inadequate. The value of the property increases year by year. If the land acquisition officer might have considered inflation and increasing prices of the properties, then, he might have taken correct approach while fixing the actual market price in respect to the property acquired. Though he has not done so, and awarded compensation merely on the basis of surmises, which is not correct. Hence, the compensation awarded to the claimants are inadequate.

The learned Government Pleader Mr. R.N. Pandya has argued that the claimant had accepted compensation without protest. Learned Advocate Mr. J.B. Patel on behalf of the claimants has relied that while referring reference claimants to the Court, special land acquisition officer has produced appendix with every application fixing detailed information about award. In that appendix, special land acquisition officer himself has mentioned that claimants have accepted compensation under protest. Moreover, in case of illiterate farmers whose lands were acquired, it is the duty of the land acquisition officer that they should ask farmers and write protest about compensation. Nowhere in land acquisition Act, it is mentioned that compensation showed be accepted in writing the farmers have write to take oral protest. That above view is held by Hon''ble High Court in 1979 (2) GLR 79. That the opponents have not produced any documentary evidence to show that claimants have not accepted compensation under protest. In their written statement also, opponents have not mentioned anything about protest. And the Hon''ble Court has not framed any issue regarding protest only oral evidence of the protest, the land acquisition officer is not sufficient to decide whether claimants have accepted compensation under the protest. Opponents have not examined land acquisition officer, who has declared the award and paid compensation and, therefore, plea raised by the opponents that claimants have accepted compensation without protest is not considered. And, therefore, issues No. 1 is decided in affirmative.

Considering all the above facts and evidence on record, it is to be noted that the land of village Dumad is situated nearby village Kumetha and the acquired lands of both the villages are same in all nature and considering the fertility and potentiality of the acquired land of both the villages, so if I fix actual market price of the acquired lands, of village Kumetha at Rs. 4,00,000.00 per hector, then, it will serve purpose and also met ends of justice.

Considering aforesaid observations made by reference Court for deciding matter, reference Court has come to conclusion that village Dumad is situated near village Kumetha and acquired land of both villages are same in nature considering fertility and potentiality of acquired land of both villages and, therefore, reference Court has made award in question as aforesaid. According to my opinion, reference Court has rightly examined issue and has rightly considered facts which are on record and finding given by reference Court cannot be considered to be baseless and/or perverse but, according to my opinion, same are quite cogent and convincing and, therefore, matter does not require any interference of this Court. Therefore, there is no substance in this group of appeals and same are required to be dismissed.

The learned Counsel for the Appellants has not able to show any distinguishing circumstance which may lead this Court to take a different view on the aspects of valuation of the land as fixed by the Reference Court and confirmed by this Court. Another pertinent aspect is that Land Reference Case No. 963/90, which has been relied upon by the Reference Court in the impugned judgment, the notification u/s 4 of the Act was of the year 1986, whereas the compensation was awarded and confirmed by this Court is at Rs. 40 per square metre and in the present case, the notification u/s 4 of the Act is in the year 1991 and therefore, if the time gap between the notification u/s 4 of the Act in the present case is considered, the appreciation granted by the Reference Court is only Rs. 5/- per square metre which by no stretch of imagination can be said to be excessive. We are inclined to take the same view in view of the peculiar circumstance that the land owners/original claimants have not challenged the decision of the Reference Court against the appreciation granted in the impugned judgment. Hence, the compensation awarded by the Reference Court cannot be said to be in any manner, erroneous, so far as the principal amount is concerned.

In respect of the acquisition of the land at village Amaliya is concerned, the perusal of the judgment of the Reference Court shows that it has relied upon its earlier decision in Land Reference Case Nos. 942 to 959 of 1990 for the acquisition of the land at village Amaliya and the compensation awarded at Rs. 40/- per square metre. Same is the situation even in the present group inasmuch as the said decision of the Reference Court in Land Reference Case Nos. 942 to 959 of 1990 is also confirmed by the learned Single Judge of this Court being group of First Appeal No. 3528 to 3539 of 2008 decided on 03.09.2009. We may record that in the said First Appeals, learned Single Judge did rely upon the earlier decision for acquisition of the land at village Kumetha and Amaliya (Amaliya and Amaliyara are the same) and ultimately, found no substance in the appeals and dismissed the appeals. Under the circumstances, reliance placed by the Reference Court in the impugned judgment upon its earlier decision in Land Reference Case Nos. 942 to 959 of 1990 cannot be said to be erroneous. Further, as observed earlier, if the time gap between the notification u/s 4 of the Act in Land Reference Case Nos. 942 to 959 of 1990 and notification u/s 4 of the Act in the present case is considered, in that case the notification u/s 4 of the Act was published in 1986 whereas in the present case, the notification u/s 4 of the Act was published in the year 1988. Therefore, as against the difference of two years between the said notification, even if normal principle of appreciation at the rate of 10% p.a. is considered, the appreciation awarded by the Reference Court at Rs. 8/- per square metre and total Rs. 48/- per square metre by arriving at the market value of the land cannot be said to be erroneous out of which the Reference Court has already reduced the amount of Rs. 2/- per square metre which was the compensation awarded.

Ms. Desai, learned Counsel appearing for the Appellant in the present group raised the similar and same contention as raised by Mr. Sinha by relying upon the award passed by the Special Land Acquisition Officer and the sale instances. However, in view of the reasons recorded by us in the earlier paragraphs, the said contentions cannot be accepted and therefore, the same is rejected.

The other benefits awarded by the Reference Court are statutory benefits and would follow in normal circumstances and therefore, the said part of the judgment of the Reference Court in both the groups of appeals in any case are not required to be interfered with.

In view of the aforesaid observations and discussions, all the appeals are meritless and therefore, dismissed. Considering the facts and circumstances, there shall be no order as to costs.

If the amount as per the judgment and award of the Reference Court together with the cost and interest if not deposited, shall be deposited with the Reference Court within six weeks from today and it is clarified that in view of the present judgment, the claimants/original land owners would be entitled to the compensation as per the present judgment. R and P be returned to the Reference Court.