2009 Supreme(Guj) 553

2010 (2) GCD 1284 (Guj) (DB)
Hon’ble Mr. Justice Mohit S. Shah
Hon’ble Mr. Justice K.M. Thaker
Anilbhai Rasiklal Shah & Ors.
Versus
Special Land Acquisition Officer & Anr.
First Appeal No. 1646 of 19981—Decided on 07/10/20092

Point in Issue :
Whether appellants in the case are entitled to enhanced rate of compensation as claimed by them.

Headnote:Head Note :

       Land Acquisition Act, 1894 (Central Act 1 of 1894) — Sections 54, 4, 5, 6, 18, 23 and 28 — Bombay Tenancy and Agricultural Lands Act, 1948 — Section 43 — Land acquisition — Demand of compensation at enhance rate — Scope — Finding of — Appellant claimants have demanded addition compensation at the rate of Rs. 40 per sq. mt. whereas reference Court has allowed compensation at a much lower rate block wise — Court while taking into account the relevant details of various sale instances and earlier awards for determining the market price of lands in question held that market price of lands in question except kharaba land can be fixed at Rs. 15.00 per sq. mt. it fixed price of Kharaba land at Rs. 5.00 per sq. mt. — Court however refused for deduction of 5% Government share from award amount in view Apex Court decision — Apex Court has held that provisions of Section 43 of Act of 1948 is not applicable in case of compulsory acquisition of land — Court however allowed solatium and additional amount of payment @ 12% on additional market value — Court directed reference Court to calculate the total amount of compensation to be awarded to appellants as directed.

       Held :

       Thus, upon taking into account the above discussed features, the relevant details of the various sale instances and the earlier awards obtaining on record, it emerges that Exh.203 and 209 provide sufficient guideline and base for determining the market price for lands in question. Court is conscious of the conclusions recorded by the Court regarding Exh.203. However, as mentioned above the Court missed to notice and overlooked certain relevant aspects and features attached to Exh.203. Further, it also emerges, upon taking into account the said sale instances Exh. Nos.203 and 209 (reflecting the market price of Rs. 24.30 and Rs. 8.00, prevailing at the relevant time) that with appropriate adjustments as regards the rates/price mentioned in the said documents, it would emerge that the market value of the land in Mahemdabad town in 1981 would range between Rs. 13.00 to Rs. 16.28. Therefore, we are of the view that considering all attending facts and circumstances of present case the market price for the lands in question, of course excluding the Kharaba land, can be fixed at Rs. 15.00 per sq. mt. [Para 20]

       It emerges from the material that the private Kharaba lands were being put to use by the land owners for pre and post crop reaping operations and for storage of equipment and the yield and that therefore, such lands enjoyed certain utility value for the land owners engaged in agricultural operations. In this view of the matter, we are of the view that in the facts of the present case and in light of the material on record and on considering the extent of Kharaba land (as compared to other acquired lands) compensation at some reasonable rate deserves to be allowed and on overall consideration of relevant aspects discussed earlier, we are inclined to fix Rs. 5.00 ps per sq. mt. as the price for Kharaba land. Thus, the price for Kharaba land is fixed accordingly. [Para 21]

       In view of the provisions of the Act vis-a-vis the provisions under Section 43 of the Bombay Tenancy & Agricultural Lands Act, 1948, it is not permissible to make any deduction from the market value because when the State exercises its power of eminent domain and compulsorily acquires the land, any question of sanction under Section 43 does not arise and therefore, any deduction from the market value would not be permissible. Thus, in Court view, the Reference Court was not right or justified in directing 5% deduction from the awarded amount. Hence, the said direction is hereby set aside.

        [Para 23]

       Since the reference proceedings were pending before the Reference Court at the time when the amendment in Sections 23 and 28 of the Act were effected, the appellants will be entitled for solatium at the rate of 30% under and as per Section 23(2) of the Act on the said additional market value only after adjusting amounts awarded/paid or deposited earlier. [Para 25]

       The appellants will also be entitled for the additional payment at the rate of 12% on the additional market price only i.e. on that portion of the rate fixed by this judgment which is above the price fixed earlier and is arrived at after adjusting the amounts awarded/paid or deposited earlier as per the directions in the impugned judgment, from the date of Notification under Section 4 to the date of award or the date of taking over possession, whichever is earlier. [Para 27]