HONOURABLE MR v. RD SPECIAL LAND ACQUISITION OFFICER & 1

2. We have heard learned Advocate Shri Devendra A. Patel for the appellants in First Appeal No. 3599 of 1995 and learned A.G.P. Ms. Moxa Thakkar for the respondents in First Appeal No.3599 of 1995 and for the appellants in First Appeal No.5137 and 5138 of 1995. Nobody has appeared for another claimant who is respondent in First Appeal No. 5138 of 1995.

3. Learned Advocate Shri Devendra Patel has submitted that the Reference Court has committed grave error in not considering the sale instances at Exh. 16 to Exh. 19 relied and proved by the claimants. As per his submission, the sale instances at Exh. 16 to Exh. 19 were in respect of the lands proximate to the lands acquired and were the best and relevant available evidence for determining the market price of the lands acquired. He would further submit that the above sale instances reflected FA/3599/1995 JUDGMENT the price of the lands at the relevant time of Rs.111/-, Rs.126/- per square meter. Out of the said sale instances, the sale instance for the price of Rs.111/- per square meter was dated

16.6.1970 and the second relevant sale instance was of date 21.7.1975, therefore, before the date of notification, highest price as per the sale instance was Rs.111/- per square meter which was required to be considered by the Reference Court. He would submit that when the above said best sale instances were available for the proximate lands, the Reference Court ought not to have considered and relied on the sale instance in respect of the land bearing Survey No. 150-1 ad-measuring 25 Gunthas sold on

3.5.1974 for the price of Rs.5000.00 per Guntha which was taken at Rs.8,000.00 per acre. He would further submit that taking the base of Rs.8000.00 per acre, the learned Judge considered the development of the surrounding area and fixed Rs.26,250.00 per acre which would be Rs.7.00 per square meter which is not reflecting the true and correct market value at the relevant time. Thus, as per his submission, the very basis taken by the Reference Court for fixing the market value of the land was not at all reliable and the sale instances produced by the claimants at Exh.16to 19 being reliable evidence, could not have been discarded by the Reference Court. As per his submission, the market value of Rs.111/- per square meter FA/3599/1995 JUDGMENT prevailing as in the year 1970 should have been taken as the basis and since the notification under section 4 of the Act was of the year 1973, 10 per cent increase every year is required to be considered so as to arrive at the correct market price as on 14.4.1973, which would come to Rs.144.30 ps. per square meter and from the said figure, deduction towards development charges to the extent of 50%and further deduction of 10% towards the smallness of the land of the above sale instance could be made which would come to Rs.86.58 ps. per square meter and deducting the said amount from Rs.144.30 per square meter, the market value of the land per square meter is required to be fixed at Rs.57.72. In respect of the sale instance of Rs.111.00, learned advocate Mr. Patel has submitted that as per the principle of law settled by Hon'ble the Supreme Court, sale instance of small size land if comparable can always be considered and if the facts of the case so demand, some deduction on the count of smallness of the land could be made. In fact, Mr. Patel strenuously pointed out that the lands acquired are in proximity to GIFT City of Gandhinagar and is within highly developed areas of Capital City of Gandhinagar and it was of very high potentiality with other lands in Gandhinagar. In support of the above said submissions, learned Advocate Mr. Patel has relied on the following authorities: FA/3599/1995 JUDGMENT (1) The Deputy Director, Land Acquisition v. Malla Atchinaidu & Ors., AIR 2007 SC 740. (2) Mahesh Dattatrey Thirthkar v. State of Maharashtra, AIR 2009 SC 2238. (3) Thakur Kuldeep Singh (D) Thr. LR & Ors. v. Union of India and Ors., AIR 2010 SC 1272. (4) Valliyammal and Anr. etc. v. Special Tahsildar (Land Acquisition) and another etc. AIR 2011 SC 2937. (5) Special Land Acquisition Officer & Anr. v. MK Rafiq Saheb, AIR 2011 SC 3178. (5) Atma Singh (died) through L. Rs. & Ors. v.State of Haryana & Anr., AIR 2008 SC 709.

4. Learned Advocate Mr. Patel has further submitted that the Reference Court has also committed error in not awarding the benefit of increase in the market value under section 23(1)-A of the Act. He submitted that though the Land Acquisition Officer passed award before the amendment of 1984, still, since the award of the Reference Court came to be passed on 31.8.1994 and since the appeal is also pending before this Court, the claimants would be entitled to the benefit of additional amount at the rate of 12 per cent per annum on the market value of the land. In support of the above said contention, learned Advocate Mr. Patel has relied on the following authorities: (1) Union of India and Anr. Versus Raghubir Singh (dead) by LRs etc. JT 1989 SC 427. (2) Union of India and Another versus Zora Singh FA/3599/1995 JUDGMENT and others, (1992) 1 SCC 673.

5. In reply to the above said submissions made by the learned Advocate for the claimant, learned AGP Ms. Moxa Thakkar has submitted that the Reference Court has committed an error in determining the market value while relying on the sale instance in respect of the land bearing Survey No.150-1 ad-measuring 25 Gunthas sold on

3.5.1974. Rs.800.00 per acre could not have been taken as base and Rs.250.00 per acre could not have been fixed for the purpose of determining the market value of the land in the context of the date of issuance of notification under section 4 of the Act. She would further submit that the sale instance at Exh. 16 to 19 produced by the claimants were of very small area and were not at all comparable sale instances for the purpose of determining the correct market value of the lands acquired. She would submit that the sale instance at Exh. 16 to 19 were in respect of the sale price derived from the auction and did not reflect the correct market value of the land on the date of notification under section 4 of the Act. She would further submit that the sale of the plots in public auction by the Government was for the purpose of construction of shops and residence and such sale instance could not be said to be comparable sale instances for the purpose of determining the market value of the lands under acquisition. She thus submitted that the FA/3599/1995 JUDGMENT Reference Court has not committed an error in not considering the sale instance at Exh. 16 to

6. As regards statutory benefits of additional increase in the market value of the land under section 23(1)-A of the Act claimed by the claimants, the learned A.G.P. has submitted that the claimants are not only not entitled for such claim but the Reference Court has also committed grave error in awarding solatium at the rate of 30% with interest at the rate of 9% and 15% per annum because the Land Acquisition Officer has passed award in the year 1978, long before the introduction of the amendment in the year 1984 for additional statutory benefits. She would submit that the case of the claimants would neither fall in the transitional provisions in the Land Acquisition (Amendment) Act, 1984 nor the case of the claimants can be said to have been covered by the provisions of section 23(2), 28 and 34 of the Land Acquisition Act. She would, thus, urge to dismiss First Appeal No. 3599 of 1995 and to allow the First Appeals filed by the State. Learned AGP has placed reliance on following authorities: (1) Union of India and others v. Filip Tiago De Gama of Vedem Vasco De Gama reported in AIR 1990 SC 981 (2) Karnal Improvement Trust v. Smt. Sumitra Devi (dead) by LRs & Ors. reported in AIR 2008 SC 1981. FA/3599/1995 JUDGMENT

7. On the question of assessment of market value of the land under acquisition, best comparable sale instance is always to be relied on. However, if there is already judgment of the reference court in respect of the land already acquired, of the same area or same village, due weightage is always required to be given on such judgment of the reference court to determine the market value. However, while determining the market value on the basis of such judgment of the reference court or even on the basis of the sale instance, difference between the dates of notification for the land under acquisition and for the lands already acquired is to be worked out for giving either increase or decrease in the value. In the present case, the Reference Court has before it the evidence of two awards of lands of two adjoining villages, one was in respect of village Lekavada and the another one of village Vavol in the District of Gandhinagar. The reference court has also available on record the evidence of sale instance in respect of the lands in the vicinity of the lands under acquisition. Reference Court, therefore, thought it fit not to consider the evidence of the earlier award in respect of village Lekavada and Vavol. The reference court was having the sale instance at Exh. 16 to 19 of the proximate land and also of the sale instance of the land bearing survey No. 150-1 ad-measuring 25 Gunthas which was sold out on 3.5.1974. The Reference FA/3599/1995 JUDGMENT Court discarded the evidence of sale instance at Exh.16 to 19 on the ground that those sale instances were of very small size of land and the sale of the land was in public auction for the purpose of shops and residence and, therefore, did not reflect the true and correct market value of the land. Learned Advocate Mr. Patel for the claimants has made very serious grievance for discarding the sale instance at Exh. 16 to 19 by the Reference Court and submitted that the reasoning given by the Reference Court for discarding such sale instance was contrary to the law laid down by the Hon'ble Supreme Court for the purpose of determining the market value. As per his submission, since the land bearing survey no. 150-1 was not at all comparable sale instance and since the sale instances of proximate land Exh. 16 to 19 though of small size and though sold in public auction were available, such sale instances were comparable sale instances and therefore there was no reason to discard such sale instances.

8. We may, at this stage, refer some judgments of the Hon'ble Supreme Court. (a) In Atma Singh (died) through L. Rs. & Ors. v.State of Haryana & Anr., (supra), the Hon'ble Supreme Court has held that the exemplars of small plots cannot be discarded when the exemplars of large pieces of land are not available. They could, therefore, be used for FA/3599/1995 JUDGMENT determining the market value of the lands under acquisition. In the facts of that case, Hon'ble Supreme Court has confirmed the view taken by the High Court for deduction of 10 per cent from the market value of the small size of land. (b) In case of Mahesh Dattatrey Thirthkar v. State of Maharashtra,(supra), the Hon'ble Supreme Court has held that the proximity to developed urbanized area needs to be necessarily considered while deciding on the compensation to be paid for acquisition of land, on the basis of evidence available. From the said judgment, observations in para 37 are required to be reproduced. They are, therefore, reproduced as under: “37. Finally, it is pertinent to note that the appellants have correctly brought out the opinion of this Court in the case of Suresh Kumar v. Town Improvement Trust (supra) and Bhag Singh v. Union of India (supra). The former case clearly lays down that proximity to develop urbanized area needs to be necessarily considered, while deciding on the compensation to be paid for acquisition of land, on the basis of evidence available. The High Court seems to have ignored that based on the evidence put forth before it by the appellant, the acquired property is situated near Osmanabad-Latur Road and Aurangabd-Solapur Highway, and the Respondent has not given any evidence to rebut this contention. Thus, the High Court has overlooked the proximity of the acquired property to a developed area. Further, while this Court clearly cautioned against taking up of "technical pleas to defeat a just claim to FA/3599/1995 JUDGMENT enhanced compensation" under the Act in Bhag Singh v. Union of India (supra), the High Court set aside the order of the Reference Court merely on grounds of minor inconsistencies and technicalities. It seemed to have disregarded the fact that the compensation provision of the Act is in the nature of a welfare stipulation and thus the State Government must be just and fair to those whose land it acquires. It is not just and fair to deprive the owner of any property without payment of its true market value, especially when the law provides that the same shall be paid.” (c) In Thakur Kuldeep Singh (D) Thr. LR & Ors. v. Union of India and Ors.,(supra), Hon'ble Supreme Court has observed in para 6: “6. Sections 23 and 24 of the Act speak about the matters to be considered and to be neglected in determining compensation. Let us consider whether the appellants are entitled to higher compensation than that of the one fixed by the High Court or Union of India is justified in seeking reduction of the market value/compensation for the acquired land. While fixing compensation, it is the duty of the Land Acquisition Collector as well as the Court to take into consideration the nature of the land, its suitability, nature of the use to which the lands are sought to be acquired on the date of notification, income derived or derivable from or any other special distinctive feature which the land is possessed of, the sale transactions in respect of land covered by the same notification are all relevant factors to be taken into consideration in determining the market value. It is equally to consider the suitability of neighbourhood lands as FA/3599/1995 JUDGMENT are possessed of similar potentiality or any advantageous features or any special characteristics available. The Land Acquisition Collector as well as the Court should always keep in their mind that the object of assessment is to arrive at a reasonable and adequate market value of the land. While doing so, imagination should be eschewed and mechanical assessment of evidence should be avoided. More attention should be on the bona fide and genuine sale transactions as guiding star in evaluating the evidence. The relevant factor would be that of the hypothetical willing vendor would offer for the land and what a willing purchaser of normal human conduct would be willing to buy as a prudent man in normal market conditions prevailing in the open market in the locality in which the acquired lands are situated as on the date of notification under Section” (d) In Valliyammal and Anr. etc. v. Special Tahsildar (Land Acquisition) and another etc. (supra), in para 14, Hon'ble Supreme Court has considered the earlier judgment in case of Shaji Kuriakose v. Indian Oil Corporation, reported in