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2012 (1) GCD 790 (Guj)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice R.M. Chhaya
State of Gujarat & Anr.
Versus
Jayantbhai Chaturbhai Patel Son of Deceased
First Appeal No. 801 of 19921—Decided on 15/11/2011
Land Acquisition Act, 1894 (Central Act 1 of 1894) — Sections 4, 6, 11, 18, 23(1-A), 28, 30(1) and (2) and 34 — Acquisition of land — Possession taken over before notification under Section 4 of the Act — Grant of additional award fixing market value of land at Rs. 40/- per sq. mtrs. by Reference Court with interest from date of taking over possession and making deduction of 5% for new tenure land — Challenged as excess and not admissible — Finding of sustainability — Court considering the difference between market price of agricultural land and the market price of non-agricultural land, allowed the deduction at 30% and fixed the market price of land to Rs. 28 per sq. mtrs. — As the possession of land was taken over before notification under Section 4 of the Act Court applied the rental theory and allowed to calculate the amount of rental compensation of the Land @ 4.5% per annum from 1966 until 1983 and after 1984 untill notification under Section 4 of the Act published in year 2002 @ of 9% per annum on the property as prevailing then from time to time upto the date of award — However, interest after the date of award claimant held entitled to interest @ 15% P.a. for subsequent years till amount is paid — They also held entitled to Solatium under Section 23(2) of the Act, increase in the market value under Section 23(1-A) of the Act on the amount of compensation — Court held that claimant shall be entitled to interest on the amount of Solatium w.e.f. 19.9.2001 — Court accordingly modified the Judgment and award passed by Reference Court.
Held :
The nature or character of the land was agricultural land on the date when the Notification under Section 4 of the Act was published, cannot be deemed as non-agricultural land, nor can be identified as non-agricultural land, since, in any case, lawful permission for utilization of the land for non-agricultural purpose was not available on that date. Therefore, if the land was agricultural land, it was required for the Reference Court to consider the aspects of valuation of the land having character of agricultural land. [Para 9]
The price of the agricultural land shall be less by 30% as against the price of the non-agricultural lands. We are inclined to take same view. Under these circumstances, even if it is accepted that the market price of the land was arrived at by the Reference Court by making appropriate deduction of 33% after making comparison and consequently Rs. 40/- per sq. mtrs., additional deduction of 30% would be required to be made. 30% of Rs. 40/- would to Rs. 12/- per sq. mtrs., and consequently, net amount would come to Rs. 28/- per sq. mtrs., which can be reasonably assessed as the market value of the land on the date when the Notification under Section 4 of the Act was published. Hence, we find that the findings recorded by the Reference Court for assessing the market value exceeding Rs. 28/- per sq. mtrs., cannot be sustained and ultimate conclusion deserves to be modified accordingly. [Para 10]
Court find that it would be reasonable to award the compensation by applying the principles of rental compensation and not to award interest, since the distinguishing feature in the land acquisition matter is that the owner of the property is already to be benefited by the prevailing market value at the time when Notification under Section 4 of the Act is published. In the event the possession is taken over prior to the notification under Section 4 of the Act, and the compensation is to be fixed for the period prior to the Notification under Section 4, it would be reasonable to award compensation by considering the criteria of rental income or rental compensation, which would leave room for earning the appreciation by owner of the property, which ultimately to be realized taking the basis of the market value on the date of Notification under Section 4 of the Act. [Para 14 (40)]
Court find that it would be reasonable to calculate the amount of rental compensation at the rate of 4.5% per annum from 1966 until 1983 and after 1984 until the Notification under Section 4 of the Act was published in the year 2002, the rental compensation should be calculated at the rate of 9% per annum on the value of the property as prevailing then from time to time as stated hereinafter.
[Para 14 (41)]
It is hereby observed and directed that the original claimants/land owners shall be entitled to the additional compensation at the rate of Rs. 28/- per sq. mtrs. The original claimants shall also be entitled to solatium under Section 23(2) of the Act, increase in the market value under Section 23(1-A) of the Act on the aforesaid amount of compensation. It is also further observed and directed that the original claimants shall be entitled to the interest under Section 28 of the Act on the aforesaid amount of compensation and the solatium but the interest on the solatium shall be w.e.f. 19.9.2001 [Para 17]
It is further observed and directed that the original claimants shall be entitled to the rental compensation at the rate of 9% per annum on the price of Rs. 25/- per sq. mtrs., of the land in question and such amount of compensation at the rate of 9% p.a., shall be payable from the date of taking over possession of the land on 18.2.1978 until the award is passed under Section 11 of the Act i.e. 27.12.1983. Additionally, the original claimants after the date of the award shall be entitled to the interest on the aforesaid amount of rental compensation at the rate of 9% p.a., for the first year and for the subsequent year 15% p.a., until the amount is paid to the original claimants and/or deposited with the Court, whichever is earlier.
[Para 18]
Jayant Patel, J.—As both the appeals arise from the common judgement, they are being considered simultaneously.
2. Both the appeals are directed against the judgement and award passed by the Reference Court in Land Reference Case Nos. 63/84 and 64/84, whereby the Reference Court has awarded additional compensation of Rs. 2,56,086.10 in Land Reference Case No. 63/84 and Rs. 67,96,327.50 in land Reference Case No. 64/84 and has additionally awarded interest under Section 28 of the Act with the observation of making it applicable from the date on which the possession was taken over of the land in question.
3. The short facts are that the lands for the project Sukhi, Unit-I, Baroda were to be acquired at Village Alikherva of Taluka Sankheda, District Baroda under the Land Acquisition Act (hereinafter referred to as the ‘Act’ for short). There were two parcels of land; one was land bearing Survey No. 206, admeasuring 53 Are and 64 sq. mtrs., whereas another parcel of the land was bearing Survey No. 207, admeasuring 13 hectare, 66 Are and 83 sq. mtrs. The possession of the land in contemplation of the proceedings under land acquisition by way of agreement was taken over on 18.2.1971. The Notification under Section 4 of the Act was published on 13.9.1979. The Notification under Section 6 of the Act was published on 2.7.1981. The award was passed under Section 11 of the Act on 27.12.1983 and the Special Land Acquisition Officer awarded compensation at Rs. 2/- per sq. mtrs. As the claimants were not satisfied with the compensation awarded by the Special Land Acquisition Officer, they raised dispute under section 18 of the Act and demanded compensation of Rs. 60/- per sq. mtrs. The Reference Court, at the conclusion of the references, awarded the compensation by fixing the market value of the land at Rs. 40/- per sq mtrs., and thereafter awarded additional compensation. The reference Court has also calculated the amount of additional compensation by making deduction of 5% for the land bearing Survey No. 206 on the ground that it was new tenure land. The Reference Court declined the benefits of increase under Section 23(1-A) of the Act to the original claimants, but the Reference Court awarded interest from the date of taking over the possession and not from the date of Notification under Section 4 of the Act or the award. Under these circumstances, the present appeals before this Court.
4. We have heard Mr. Soni, learned AGP for the appellant in both the appeals and Mr. S.N. Shelat, learned Sr. Counsel appearing with Mr. Majmudar for the respondents – original claimants and their legal heirs. We have considered the record and proceedings. We have gone through the judgement and reasons recorded by the Reference Court.
5. The first aspect, which may be required to be considered in the present matter, is the assessment of the market value of the land in question. The perusal of the judgement and the reasons recorded by the Reference Court and more particularly Paragraphs 27 to 31 of the impugned judgement shows that the Reference Court has mainly relied upon the earlier award passed by the Reference Court for acquisition of the land for ST Depot at the very village and the decision of the same was produced at Exh. 38. We find that if the Reference Court has relied upon the fixation of the compensation in respect of the land of the nearby area, which came to be acquired earlier, such approach on the part of the Reference Court cannot be said to be erroneous, since the said aspect can be considered as one of the most relevant and vital circumstances for assessment of the market value of the land.
6. We have considered the said documents at Exh. 38 namely the decision of the Reference Court for acquisition of the land in Reference Case Nos. 27 and 28 of 1981. The perusal of the said judgement shows that the Notification under Section 4 of the Act in that case was published on 15.3.1977, but the area under acquisition was admeasuring 1 acr
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