DY. COLLECTOR, LAND ACQUISITION, GUJARAT & ANR. v. MADHUBAI GOBARBHAI & ANR.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. These appeals involving common questions of law and fact were taken up for hearing together -t and are being disposed of by this common judgment.

2Copy pinpoint2. The State of Gujarat issued diverse notifications for acquisition of a huge tract of lands for construction of a dam over a river known as 'Thebi'. The lands sought to be acquired were spread over in three villages, namely, Amreli, Baxipur and Giriya. Whereas villages Amreli and Baxipur are situated on the western side of river and within the municipal limit of the town of Amerli; village Giriya is on the eastern bank thereof and outside the municipal limit of the said town Amreli.

3Copy pinpoint3. Amreli is the headquarters of the District Amreli. It is a well developed town. A National Highway known as "Amreli - Chittal Road" passes through the town of Amreli. G

4Copy pinpoint4. The residents of the town enjoy the facilities of transportation, hospitals, schools, colleges,_telephone, etc. It is, "" however, admitted that the entire development has taken place on the eastern bank of the river and not on the western bank. The villages situate on the western bank, however, admittedly H

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A are wholly undeveloped. The lands under acquisition are • . agricultural lands. The land upon acquisition were to be submerged under water.

5Copy pinpoint5. The Land Acquisition Officer made three different awards for three different villages. 8

6Copy pinpoint6. For agricultural lands situate in village Baxipur, which are the subject matters of judgment and order dated 23.02.1998 passed in F.A. No. 3119/1997 and F.A. No. 3120/ 1997 and judgment and order dated 4.5.1999 passed in F.A. C Nos. 6184-6203/1995 and other connected appeals, compensation was awarded at the rate of Rs.75/- per square meter.

7Copy pinpoint7. Out of 350 land owners, however, only 156 land owners 0 filed applications for reference before the Collector in terms of Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as, "the said Act").

8Copy pinpoint8. The Reference Court awarded compensation calculating the market value thereof at the rate of Rs. 75/- per square meter in respect of lands situate in Baxipur village (western side of river Thebi), Giriya village (eastern side of river Thebi) and Amreli village (western side of river Thebi). So far as the lands situate within the Amreli town, which is within the municipal area and situate on the eastern side of the river comprising of residential and commercial area which was developed since 1984, are concerned; the Land Acquisition Officer awarded compensation at the rate of Rs.50/- per square meter in respect of agricultural lands, but the Reference Court and the High Court awarded compensation at the rate of G Rs.160/- per square meter of land. For the same area in respect of non-agricultural lands, the Land Acquisition Officer awarded compensation at the rate of Rs.150/- per square meter whereas the Reference Court as also the High Court awarded compensation at the rate of Rs.240/- per square meter.

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 535 ANR. v. MADHUBAI GOBARBHAI &ANR. [S.B. SINHA, J.] "'

9Copy pinpoint9. So far as acquisition of lands which are subject matter of C.A. No. 325-331/2000, situated in village Giriya are concerned; whereas the Land Acquisition Officer awarded compensation at the rate of Rs.12/- per square meter in respect of agricultural lands and Rs. 50/- per square meter in respect of non-agricultural lands, the Reference Court awarded compensation for both categories of land at the rate of Rs.400/ - per square meter, the High Court, however, while upholding > the said amount of compensation in respect of non-agricultural lands reduced the amount of compensation to Rs.300/- per square meter for agricultural lands. c

10Copy pinpoint10. Aggrieved by and dissatisfied with the aforementioned judgments, the State of Gujarat is before us. An appeal has also been filed by some of the claimants owning non-agricultural lands and raised constructions for use of the same as godown. D . 11. We may deal with the relevant facts and submissions made before us in each group separately.

GROUP -1

12Copy pinpoint12. With a view to appreciate the rival contentions of the E· parties, we may notice heretobelow the number of matters and the other relevant facts for our purpose which are involved in Group -I wherein compensation has been awarded at the rate ""' of Rs. 75/- per square meter F Group Total C.A. No. F.A. No. Notification Date No. matters Section 4 <i dated Judgment

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A 7 243-249/2000 269- 15.3.1990 4.5.1999 275/1997 11 250-260/2000 910- 15.3.1990 4.5.1999 920/1996 34 261-294/2000 1017- 15.3.1990 4.5.1999 B 1050/1996 7 295-301/2000 7-13/1997 20.9.1990 4.5.1999 2 302-303/2000 2358- 15.3.1990 4.5.1999 2359/1997 15 304-318/2000 1880- 10.12.1992 4.5.1999 c 1894/1997 6 319-324/2000 2061- 10.12.1992 4.5.1999 2066/1997 4 1 4090/2000 2546/1997 15.3.1990 4.5.1999 5 1 4091/2000 1166/1997 8.8.1990 4.5.1999 D

13Copy pinpoint13. We may, at the outset, also notice that the Reference .,. Court and High Court refused to take into consideration a large number of deeds of sale (Exh. 86 to 100) produced by the State inter alia relying on or on the basis of the decision of this Court E in P. Ram Reddy and Ors. v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors (1995) 2 sec 305, the same were not admissible in evidence. As for the purpose of proving the same, neither the vendor nor the vendee in respect of the said deeds of sale had F been examined. An application for adduction of additional evidence filed before us has been allowed.

14Copy pinpoint14. Mr. S.N. Shelati, learned Senior Counsel appearing on behalf of the State would submit:

G (i) The. Reference Court and the High Court committed a serious error in not exhibiting true copies of the Sale Deed (Exhs. 86 to 100) in view of the decision • of this Court in P. Ram Reddy and Ors. v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors. H

. (ii) The Reference Court and the High Court awarded a grossly high value towards compensation of the acquired lands by misapplying the principle of valuation and adopting a wrong method of valuation c and thus, committed a manifest error.

(iii) While making the award, the Reference Court as also the High Court failed to take into consideration the fact that the lands of village Baxipur being D . situated on western bank of river Thebi far from village Amreli as also the fact that geographic condition of the eastern bank of river Thebi is absolutely different vis-a-vis the lands situated on the western bank. Whereas the lands situated on the eastern bank are mostly converted into non- agricultural lands; the lands situated on the western bank of river Thebi are only agricultural lands and in that view of the matter it is impermissible in law to compare the lands situated on the western bank of the river with those on the eastern bank particularly when even no residential premises have been constructed thereon. The lands situated on the western bank of the river Thebi having not been converted into non-agriculture land and there being hardly any scope for any devel9pment and furthermore in view of the purpose for which acquisition has been made, namely, submergence of the land under water, the Reference Court as also the High Court must be held to have committed H

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A a serious error in comparing the lands with agricultural lands situated on the western bank with the non-agricultural lands situated on the eastern bank of the river Thebi.

(iv) The Land Acquisition Officer having considered the B comparable sales of agricultural lands both on the western bank and eastern bank as also sale of non-agricultural lands and having awarded compensation at the rate of Rs.350/- per Are for Jirayat and Rs.500/- per Are for irrigated lands and, c .thus, having considered all relevant factors, the same should not have been interfered with by the Reference Court as well as by the High Court.

(v) There being no reliable evidence of comparable instances or to show the actual yield from the land and, thus, the land holders having not been able to discharge the burden of proof, the amount of compensation awarded by the Land Acquisition Officer should be held to have been fair and adequate in view of the decisions of this Court in Special Land Acquisition Officer vs. Sidappa Tumari [1995 Supp. (2) SC 168 (Para 22).

(vi) The Reference Court and consequently the High Court without any material on record awarded > F compensation at the rate of Rs.75/- per square meter in respect of agricultural lands which admittedly are situated in an undeveloped area and, thus, committed a serious error of law.

G (vii) The Reference Court ought not to have disregarded the distance between the "Amreli - Chittal Road" and the village in question which is 1.5 kilometers to 2 kilometers and, thus, committed a serious error in relying upon the sale instances being Exhs.35 to H 40 which were in respect of the lands adjacent to

- ~ DY. COLLECTOR, LAND ACQUISITION, GUJARAT & ANR. v. MADHUBAI G03ARBHAI & ANR. [S.S. SINHA, J.] 539

"Amreli - Chittal Road" for the purpose of holding A that the amount of compensation awarded by the Land Acquisition Officer was unjustified.

(viii) Ignoring the distance of 1.5 to 2 kilometers (holding it to be of not much consequence by the High Court) B for the purpose of ascertaining the true market value of the land situated in an undeveloped area was wholly erroneous particularly in view of the fact that the witnesses examined on behalf of the respondents categorically stated that there was no likelihood that the said area would be developed c in future.

(ix) The High Court furthermore should not have failed to take into consideration the evidence of Jerambhai Devsinhbhai (Exh. 12) who had categorically admitted that except Oil Mills there was no other industry in village Amreli and there was neither any State High Way passing through the said village nor there was any railway connection. Even witness Bhagvandas had admitted that between the dam and Pratappura area there were no residential houses. Similarly witness Bharatbhai K.Mehta had admitted that he had purchased the land for his own purpose, namely professional and residential purpose. F (x) The Reference Court as also the High Court should not have relied upon the valuation report proved by Bhikhabhai Rami who in no uncertain terms had admitted that he had not seen any document in respect of surrounding lands and furthermore had G ' not taken into consideration the deeds of sale ... mentioned in the award and moreover there was neither any road facility available nor any residential house could 'be traced out and there was no possibility of any industrial development also on the H

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' • A western side of the river.

(xi) The Reference Court as also the High Court committed a serious error insofar as they failed to take into consideration that the land owners failed to discharge their burden to show that the land in B question had any potentiality of development.

15Copy pinpoint15. Mr. R.P. Bhatt learned Senior Counsel appearing on 1 behalf of the respondents, on the other hand, would submit:

c i. As upon perusal of the award made by the Land Acquisition Officer itself it would be evident that the entire area is a developed one and the land owners were progressive farmers, no infirmity can be said to have been committed in comparing non- D agricultural lands with agricultural lands particularly when in respect of the lands situated in one area he had granted compensation at the rate of Rs.50/ • - per square meter, there was absolutely no reason as to why the award at the rate of Rs.3.50 per square meter for non-irrigated lands and Rs.5/- per square meter for the irrigated lands should be awarded.

ii. For determining a just and fair amount of compensation, no sole decisive factor existed and each case was required to be considered on its own merit. However, when such determination can be made upon applying more than one factor, the appellate court should not have interfered therewith even if another view was possible. G iii. Location of a land although material keeping in view the fact that for all intent and purpose all the three " villages are part of one town, only because a part of the acquired land is situated at a distance of 1.5 to 2 kilometers, the sale instances in respect of H

: DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 541 ANR. v. MADHUBAI GOBARBHAI & ANR. [S.B. SINHA, J.] developed area can be applied subject of course A to such deduction as is applicable in respect thereof.

16Copy pinpoint16. Notifications for acquisition of different parcels of land were issued on diverse dates. B

17Copy pinpoint17. Indisputably the purpose of acquisition was construction of a dam over river Thebi. The lands acquired are situated in three villages. Nature of lands acquired was both agricultural and non-agricultural. Some are situated in the urban area which were well developed and some were not completely developed and mainly agricultural lands.

18Copy pinpoint18. The lands at Baxipur which are non-agricultural lands and situate on the Western bank of river Thebi, indisputably were agricultural lands. The purpose for their acquisition was that the said lands would be submerged in water.

19Copy pinpoint19. It is also not in dispute that various parts of the village Giriya and Amreli are within the municipal limits while only a portion of the lands situate in village Baxipur is within the municipal limit. E

20Copy pinpoint20. The parties hereto in support of their respective cases relied upon a large number of documents including deeds of sale. A large number of witnesses including some experts were examined in the matters. F

21Copy pinpoint21. We have noticed hereinbefore the reasonings of the Land Acquisition Collector; the Reference Judge as also the High Court for arriving at their respective opinions.

22Copy pinpoint22. The learned Reference Judge, however, rejected the G deeds of sale produced by the acquiring authority inter alia on the premise that to prove the same neither, vendor or the vendee thereof had been examined. For the said purpose, it relied upon a decision of this Court in P. Ram Reddi v. Land Acquisition Officer, (Supra). The said decision of this Court, H

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"25. Section 51-A of the Land Acquisition Act seeks to make an exception to the aforementioned rule. c

26. In the acquisition proceedings, sale deeds are required to be brought on record for the purpose of determining market value payable to the owner of the land when it is sought to be acquired. D

27. Although by reason of the aforementioned provision the parties are free to produce original documents and prove the same in accordance with the terms of the rules of evidence as envisaged under the Indian Evidence Act, the LA Act provides for an alternative thereto by inserting the said provision in terms whereof the certified copies which are otherwise secondary evidence may be brought on record evidencing a transaction. Such transactions in terms of the aforementioned provision may be accepted in evidence. Acceptance of an evidence is not a term of art. It has an etymological meaning. It envisages exercise of judicial mind to the materials on record. Acceptance of evidence by a court would be dependent upon the facts of the case and other relevant factors. A piece of evidence in a given situation may be accepted by a court of law but in another it may not be.

28. Secticn 51-A of the LA Act may be read literally and . having regard to the ordinary meaning which can be attributed to the term "acceptance of evidence" relating to transaction evidenced by a sale deed, its admissibility in

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 543 ANR. v. MADHUBAI GOBARBHAI & ANR. [S.B. SINHA, J.]

evidente would be beyond any question. We are not oblivious of the fact that only by bringing a documentary evidence in the record it is not automatically brought on the record. For bringing a documentary evidence on the record, the same must not only be admissible but the contents thereof must be proved in accordance with law. B But when the statute enables a court to accept a sale deed on the records evidencing a transaction, nothing further is required to be ,done. The admissibility of a certified copy • of sale deed by·itself could not be held to be inadmissible as thereby a secondary evidence has been brought on c record without proving the absence of primary evidence. Even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof.This, however, would not mean that the contents of the transaction as evidenced by the registered sale deed 0 would automatically be accepted. The legislature advisedly has used the word "may". A dis_9retion, therefore, has been conferred upon a court to be exercised judicially i.e. upon taking into consideration the relevant factors. ' (See also Ranvir Singh and another v. Union of India, E [(2005) 12 sec 59 J. -

23Copy pinpoint23. In view of the aforementioned Constitution Bench decision we allowed an application filed by the appellant for placing additional documents on record by our order dated F 23.10.2008. We, therefore, are required to take into consideration the said transactions as well.

24Copy pinpoint24. The core question which arises for our consideration is what principles should be applied for determining the market value of the land. It is now a well settled principle of law that G the determination of the market value of the land acquired, indisputably would depend upon a large number of factors, nature and quality of the lands is one of them. The norms which are required to be applied for determination of the market value of the agricultural land and homestead land may be different H

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A In given cases location of land and in particular, closeness thereof from any road or high-way would play an important role for determination of the market value wherefor belting system may in appropriate cases have to be resorted to. The position of the land, particularly in rainy season, existence of any B building etc. also plays an important role. A host of other factors including development in and around the acquired land and/or the potentiality of the development will have a bearing on determination of the value of the land.

25Copy pinpoint25. Determination of the market value of the land may also depend upon the facts and circumstances of each case, amongst them, however, would be the price of land, amount of consideration mentioned in a deed of sale executed in respect of similarly situated land near about the date of issuance of Notification under Section 4( 1) of the Act ; in the absence of any such exemplars the market value can be determined on yield basis or in case of an orchard on the basis of number of fruit bearing trees. It is also well settled that for price ' determination purposes, the courts would be well advised to consider the positive and negative factors, as has been laid down by this Court in Viluben Jhalejar Contractor vs. State of Guj91.at [(2005) 4 sec 789]. namely :-

Positive factors Negative factors

(i) Smallness of size (i) Largeness of area , F (ii) proximity to a road (ii) situation in the interior at a distance from the road

G (iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth

(iv) lower level requiring the "' (iv) Nearness to developed area depressed portion to H

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 545 ANR. v. MADHUBAI GOBARBHAI & ANR. [S.B. SINHA, J.]

depressed portion to be filled up

(v) regular shape (v) Remoteness from developed locality

(vi) Level vis-a-vis land (vi) Some special under acquisition disadvantageous factors which would deter a purchaser

(vii) Special value for an c owner of an adjoining property to whom it may have some very special advantage.

26Copy pinpoint26. The Reference Judge as also the High Court had D proceeded to determine the market value inter alia relying upon ,. or on the basis of some deeds of sale ; valuation report; the circular letter issued by the Collector in regard to premium payable on conversion of land etc. E

27Copy pinpoint27. The Reference Court and the High Court while ign-C,ririg the deeds of sale whereupon reliance was placed by the State, for the reasons stated hereinbefore, principally relied upon a few deeds of sale. We shall take notice of some of them, .. namely, Exhibits 35, 36, 37, 38, 39 and 40. F

28Copy pinpoint28. It will also be beneficial to consider some of the documents upon which the State relied upon, they are Exhibits 86, 90 , 91 and 96.

29Copy pinpoint29. Criticisms advanced on behalf of the State in respect G of the deeds of sale whereupon the claimants relied are as under.

i. Exhibit 35 pertain to a non agricultural resident plot ; construction thereon is only upto plinth level ; it is H

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A situated in a municipal area ; it a very small plot and that is why it was not comparable.

ii. Exhibit 36 and 37 pertain to a non agricultural residential plots of land. They are situated by the B side of the highway and in the municipal area.

iii. Exhibit 38 relates to a non agricultural residential plot, comes under earthen dams area. It is outside the municipal area.

c iv. Exhibits 39 and 40 relate to non-agricultural residential plots of land. They touch Amreli-Chittal- Rajkot Highway and are in municipal area.

V. Bharatbhai, PW-7, purchaser of the land under Exhibit 40, stated that the purchase of the plot by him was for a special purpose, namely - i.e. for professionai and residential purposes.

30Copy pinpoint30. The Land Acquisition Officer in his Award noticed the position and place of the land sought to be acquired in the following words:-

"Details of land to be acquired.

The lands of survey number 1007 to 1046 as shown at Sr. No.1 to 28 of the statement of award are cultivable land • F situated on west of Thebi river far away from Amreli, near the limits of Baxipur. These land as shown in statement Jirayat dry and Jirayat irrigated, which is black and fe11ile giving 2 crops on monsoon and winter.

G The land proposed to be acquired is of old and new sharat. Amreli town is the head quarter of Amreli District, is a railway station, S.T. Buses are ravaging throughout the year. The population of Am re Ii is near about 1, 10,000 which consist mainly of Patel, Bania, Brahmins, Weavers etc who H ·are progressive farmers. There are industries of oil mills,

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 547 ANR. v. MADHUBAI GOBARBHAI & ANR. [S.B. SINHA, J.]

land weaving etc." A

31Copy pinpoint31. In the said Award, summary of sales of agricultural lands was prepared, which read:-

"Summary of considerable sales of agricultural lands B Sales of western bank Sale of eastern bank

Survey Acres Date of Price of 1 Survey Acres Date of Sale No. . sale 1 are · No. Sale 1 are

991 308 21/5/85 785-25 37/37/2 6.20 6/6/85 307-69 c 1063 2.38 13/12/85 381-00 29 0.24 23nt87 1041-66

949 2.28 15/4/87 426.00 33/AB 1.11 2/3/89 3882.35 D 1063 1.13 3/2/89 754-71 33/AB 1.10 3/3/89 3880.00

Looking to these sales of agricultural lands Rs.350/- for Jirayat and Rs.5000/- for irrigated lands for 1 Are are seems to be reasonable for the lands of Western b·ank of E river Thebi. Looking of these sales and the rise in price of land Rs.2000/- and Rs.3000/- for lands for 1 Are are seems to be reasonable but the geographical copdition of eastern bank is quite different as most of the land are converted into non-agricultural lands and is either F - populated or nearly populated area, is situated on Amreli, Chittal State highway. Looking to all these factors it is not possible to compare the land of western bank with land of eastern bank. No lands are converted into non-agriculture and then is no habitation in the western bank of river Thebi. G Whilst there are many non-agriculture land and habitation increases day by day. More over many lands of eastern bank are converted into non-agriculture, which were proposed to be acquired. Hence it seems neces§_ary to discuss about sales of non-agricultural plotting too as the H

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A land of eastern bank are situated on Amreli, Chittal, Rajkot Highway and nearer to these and a statement of sales of non-agricultural lands has been taken from the Kasba Talati Amreli which is appending as statement number K- 2 Discussions of these sales are narrated here below." B

32Copy pinpoint32. Our attention was further drawn to the fact that admittedly there was no development on the western side of the river. Our attention has further been drawn to the evidence of PW-1, Jerambhai. who is one of the claimants. He admitted that in the village form, which he had produced, it has not been shown that two crops are grown and that he did not maintain any account or balance sheet of the receipt of the crop grown. He furthermore accepted that there was nc railway connecting the village with any big city. It was also admitted that not any State highway passes through Amreli and except oil mills, there were no other industries.

33Copy pinpoint33. The claimants examined one of the experts, namely • Bhikhubhai as PW-9, who admitted that he had examined deeds of sale pertaining to residential land only and not pertaining to agricultural lands. He furthermore admitted that the Land Acquisition Officer had taken into consideration figures of five years' sale transactions in his Award. In his deposition he stated:-

"(4) I know that Amreli is backward for Industrial purpose and as per my say Industrial Development has been started. It is true that on the western side of river nothing is there. Moreover for the purpose of going towards west side, no road facility is available. As per my say acquired land is residential purpose land. I have enquired from the town planning office. It is true that" in this area no residential houses traced out. In the year 1972, in Amereli town planning has been endorsed and this fact I know very well. The facts stated in column no.9 in Exh. H

f DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 549 ANR. v. MADHUBAI GOBARBHAI & ANR. [S.B. SINHA, J.)

78, which is mentioned considering sale transaction."

34Copy pinpoint34. On behalf of the State one Ramniklal was examined as DW-1, He was a Deputy Executive Engineer (Thebi Irrigation). He has not only deposed that the acquired land is situated outside the Amreli Municipality but according to him they are situated at a distance of about 1 Yi km. - 2 km. from Amreli-Chittal road. Whereas the residential area, according to him, was on the eastern side, on the western side of the river Tebi there was no residence. He further stated that no State highway is passing through Amreli and also that railway is not c connected with big city.

35Copy pinpoint35. Shri Kaushik who was·examined on behalf of the State , as DW-2 and had been serving the State as a Deputy District Development Officer, in his deposition admitted:- D

"I have awarded compensation at the rate of Rs.150/- per sq. mt. for Agriculture land and which is likely to be developed. The compensation awarded at the rate of Rs.50/- per sq. mt. has been awarded fully and compensation at the rate of Rs.150/- per sq. mt. has been calculated after deducting price of road (way) in the case of not taking possession road, then in such cases, I have awarded compensation at the rate of Rs.1/- which is token " and deduction of road was being deducted in such case where possession of road has been handed over. Generally for the purpose of converting land into not- , agriculture purpose, the claimant has to left (sic for leave) 40 to 43% land."

36Copy pinpoint36. It appears that the High Court had mixed up the Awards G made in respect of the lands situated on the Eastern side of 1he River with that of the Western Side.

37Copy pinpoint37. We may now notice the deeds of sale whereupon the State had relied upon. H

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38Copy pinpoint38. Ext. 86 is in respect of a deed of sale relating to Survey No.991which is adjacent to Survey No.103-A in terms whereof only 0. 77 per sq. meter of land was determined as the market value. It was also placed on record that the vendor Lalubhai Keshavbhai is one of the claimants before us. However, it B appears from Ext. 90 which is a deed of sale dated 7th January, 1987 relate to the land which is adjacent to Survey • No.999 K from a perusal whereof it appears that the market value was Rs.1.85 per sq. mt. The subject matter of the said deed of sale is the land situated near nana Ankadira village c road near to the acquired land at the western side of the river.

39Copy pinpoint39. Ext. 96 is the deed of sale dated 22nd June, 1989, appertaining to Survey No. 1043 P; from a perusal whereof it would appear that the market value of the land was Rs. 2.08 per sq. meter. Ext. 98 is the deed of sale dated 21st April, 1990 D which is in respect of Jiyarat land situated on the eastern side of the river adjoining Amreli municipal area. The market value of the same comes to Rs.8.41 per sq. met. Ext. 99 is a deed of sale dated 27th September, 1990 appertaining to Survey No.1047/1 and adjacent to Survey No.1031 & 1046 is t:3agayat E land, which is stated to be situated near the acquired land on the western side of the river and down stream of earthen dam, the market value of which was Rs.2.50 per sq. met. .

40Copy pinpoint40. The High Court, however, proceeded on the basis that although the acquired lands were situated on one side of the river, in view of the fact that entire acquired land was to be submerged, no justification can be made in regard to the nature of the land. The High Court held (in our opinion wrongly) that distance of a few kilo meters from the Amreli town would not matter. •

41Copy pinpoint41. The High Court furthermore opined that the lands in village Baxipur were also fertile and thus no discrimination can be made. For the said purposeihe High Court relied upon the Awards made in the earlier case exhibited as Exhibits 68 and I'

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 551 ANR. v. MADHUBAI GOBARBHAI &ANR. [S.B. SINHA, J.]

.. 73 in terms whereof compensation @ Rs.75/- per sq. meter A .. was paid .

42Copy pinpoint42. The variation in the price of the land within a few years is a matter of great significance. It is true that no single factor would be decisive for the purpose of arriving at the market value B of the land. But in a case of this nature a holistic view is required to be taken. It is, in our opinion, wholly improper to forget the distinction between the agricultural land and the non agricultural land. Even in the same area, value of the agricultural ,. land and the non-agricultural land may be considerably different. For the said purpose, existence of the road ; railway station ; c airport; schools ; colleges ; hospitals etc. play an important role. It is not a case where the developed area and the undeveloped area or for that matter non agricultural and agricultural lands are merely divided by a road. It is also not a case where the entire area is known and treated to be one and the same, although a D part of it may be governed by the Panchyat and the other part comes within a municipal area. It stands admitted that the acquired lands for all intent and purport is divided into two parts. / The eastern part and only a small part of the western side is within the municipal area and the other, consisting of agricultural E lands, is outside the municipal area. It furthermore stands admitted that the town has developed only on eastern side of the' river and agricultural lands are situated on the western side in which there is even no residential house. F

43Copy pinpoint43. In a case of this nature, indisputably different criterion and norms are required to be adopted for determination of the · market value.

44Copy pinpoint44. Before us learned counsel for the parties have relied upon a large number of decisions. We may notice some of G them

45Copy pinpoint45. This Court in Union of India v. Pramod Gupta, [ (2005) . " 12 SCC 1 J, on the question of determination of market value opined:- H

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A "24. While determining the amount of compensation payable in respect of the lands acquired by the State, the market value therefor indisputably has to be ascertained. There exist different modes therefor.

25. The best method, as is well known, would be the B amount which a willing purchaser would pay to the owner of the land. In absen9e of any direct evidence, the court, however, may take recourse to various other known methods. Evidences admissible therefor inter alia would • be judgments and awards passed in respect of c acquisitions of lands made in the same village and/or neighbouring villages. Such a judgment and award, in the absence of any other evidence like the deed of sale, report of the expert and other relevant evidence would have only evidentiary value. D

26. Therefore, the contention that as'the Union of India was a party to the said awards would not by itself be a ground to invoke the principles of res judicata and/or estoppel. Despite such awards it may be open to the Union of India E to question the entitlement of the respondent claimants to the amount of compensation and/or the statutory limitations in respect thereof. It would also be open to it to raise other contentions relying on or on the basis of other materials brought on record. It was also open to the appellant to F contend that the lands under acquisition are not similar to the lands in respect whereof judgments have been delivered. The area of the land, the nature thereof, advantages and disadvantages occurring therein amongst others would be relevant factors for determining the actual market value of the property although such judgments/ G aw?rds, if duly brought on record, as stated hereinbefor~. would be admissible in evidence."

It was further opined :-

H "36. Yet again in Ras Behari Manda/ v. Raja Jagadish

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 553 ANR. v. MADHLJBAI GOBARBHAI & ANR. [S.B. SINHA, J.] -1: Chandra Deo Dhauba/ Deb the Patna High Court A reiterated the presumption that the lessor retains all the rights in mines and quarries. It also noticed the decision of the House of Lords in Great Western R/y. Co. v. Carpal/a United China Clay Co. Ltd.wherein a grant reserving minerals was held to exclude a deposit of china B clay despite the fact that the same was found near the surface." .. It was also held that:-

"8. In V. Hanumantha Reddy v. Land Acquisition Officer c & Manda/ R. Officer the law is stated in the following terms: (SCC p. 645, para 5)

"It is now a well-established principle of law that the land abutting the national highway will fetch far more higher price than the land lying interior."

This Court further opined :-

"84. It is also trite to state that the market value of agricultural land is lower than that of the land suitable for commercial purposes. (See Om Prakash v. Union of India.)

It was further opined :-

"87. The courts will also have to take into consideration the enormity of the financial implication of enhancement in view of the size of the land acquired for a particular project.". ' In Ranvir Singh v. Union of India, [(2005) 12 SCC 59], G this Court opined as under :- " "22. Concededly, the High Court in its impugned judgment did not place any reliance whatsoever upon the sale instances whereupon strong reliance has been placed by H

p. 554 Copy page pinpoint

A the parties solely on the ground that neither the vendors ~

nor the vendees thereof had been examined as witnesses. It has also not placed any reliance upon any other judgment or award filed by the parties. The High Court while arriving at the said finding evidently took into - B consideration the law as it then stood. The correctness of the decisions wherein the aforementioned view had been taken was doubted and the matter was referred to a larger Bench."

Referring to Cement Corporation (supra), it was opined c that the High Court was required to consider the deeds of sale in their proper perspective for determining the market value of the acquired land."

In Karimbanakkal Su/aiman (Dead) by L.Rs. v. Special D Tahsildar for K.A.K.P.l.P., [(2004) 13 SCC 643], this Court held: ~

"These factors have been taken into consideration by the High Court in fixing the land value. Moreover, the land acquired was agricultural land and it was acquired for the E purpose of an irrigation project. There is nothing on record to show that the land had any commercial value or future potentialities. We do not think that the land value fixed is too low to be interfered with by this Court."

F In Vi/uben Jha/ejar Contractor v. State of Gujarat, [(2005) • 4 SCC 789], this Court opined that :-

"24. The purpose for which acquisition is made is also a relevant factor for determining the market value. In Basavva v. Sp/. Land Acquisition Officer deduction to the G extent of 65% was made towards development charges. " ~

In Basant Kumar v. Union of India, [ (1996) 11 SCC 542 ], this Court has opined that even if the entire land is of one H

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 555 ANR. v. MADHUBAI GOBARBHAI & ANR. [S.B. SINHA, J.]

_. village all the persons cannot be given same compensation, stating:-

".... It has been firmly settled law by beadroll of decisions of this Court that the Judge determining the compensation under Section 23(1) should sit in the armchair of a willing prudent purchaser in an open market and see whether he would offer the same amount proposed to be fixed as market value as a willing and prudent buyer for the same or similar land, i.e., land possessing all the advantageous features and to the same extent. This test should always be kept in view and answered affirmatively, taking into consideration all relevant facts and circumstances. If feats of imagination are allowed to sway, he outsteps his domain of judicial decision and lands in misconduct amenable to disciplinary law... " D

46Copy pinpoint46. It has categorically been held that ordinarily the entire village should not be treated as one unit as 'even in the same village, no two lands command the same market value' as potentially, the fact that land abutting a National Highway or road would command a higher market value vis-a-vis the land E situated at a location which is not so situated.

47Copy pinpoint47. Potential development and/or likelihood of development are also the factors which have been considered to be relevant by this Court in Kanwar Singh v. Union of India, [(1998) 8 SCC 136 ] observing:- F

"8. So far as the first argument that the appellants ought to have been given the same rate of compensation which was given to the claimants of the adjoining village is concerned, the amount of compensation for the land G acquired depends 011 the market value of land on the date immediately before the notification under Section 4 of the Act or when same land is acquired and offer of compensation is made through an award. Whether such an offer of compensation represents the market value of H

p. 556 Copy page pinpoint

A the land on the date of notification under Section 4 of the .. Act, has to be determined on the basis of evidence produced before the Court. The claimants have to prove and demonstrate that the compensation offered by the Collector is not adequate and the same does not reflect B the true market value of the land on the date of notification under Section 4 of the Act. This could only be done by the claimants by adducing evidence to the effect that on the relevant date, the market value of the land in question was such at which the vendor and the vendee (buyer and seller) • were willing to sell or purchase the land. The consideration c in terms of price received for land under bona fide transactions on the date or preceding the date of notification issued under Section 4 of the Act generally shows the market value of the acquired land and the market value of the acquired land to be assessed in terms of those transactions. Sale instances showing the price fetched for similar land with similar advantages under bona fide transaction of sale at or near about the issue of notification under Section 4 of the Act is well recognized to be the appropriate evidence for determining the market value of the acquired land."

48Copy pinpoint48. It was opined that the amount of compensation should not be awarded based on the market value of the land determined for a neighbouring village.

49Copy pinpoint49. In State of Maharashtra v. Basantibai Mohan/a/ Khetan, [(1986) 2 SCC 516] referring to capitalization method for determining the value of the land, it was opined:

"... In order to appreciate this ground of objection, it is G necessary to examine whether the classificatiot'! of the land under the Act into the land in municipal area and the land in rural area for purposes of determining the amount . payable on acquisition is bad. It is not denied that the land in municipal area commands various advantages which H

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 557 ANR. l. MADHUBAI GOBARBHAI & ANR. [S.S. SINHA, J.) ... A are not available in the case of land in rural areas."

50Copy pinpoint50. Situation of the land and particularly the area in which it is situated is indisputably a relevant factor. We, however, do not mean to suggest that only because the land is situated within the jurisdiction of a Gram Panchayat by itself would go to show B that the value of the lands sought to be acquired cannot under any circumstance be compared with the land situate within the jurisdiction of municipality. There may be a case where the ... lands situated on one side of the road was within the Gaon Sabha and the other side within the municipality. It is also not a case where the area is known as one and the same area c although divided by a road and are under different jurisdictions. {See also Satish & Ors. vs. State of U.P. & Ors. [(2009) 9 SCALE 632] and National Thermal Power Corporation Ltd. vs. Mahesh Dutta & Ors. [(2009) 9 SCALE 591]} D

51Copy pinpoint51. It is furthermore beyond any doubt or dispute that ) building potentiality of the land acquired would also be a relevant consideration.

52Copy pinpoint52. However, the purpose for which the land is sought to E be. acquired would also assume some significance.

53Copy pinpoint53. It is on the aforementioned factual backdrop and legal principles governing grant of compensation, the market value k of the lands situate within Group-1 is required to be determined. F

54Copy pinpoint54. The lands are purely agricultural lands. There were no buildings; there was no residential use; there was no factory. No development had taken place nor was any development expected in immediate future. The lands were acquired only for the purpose of submergence. It had thus even no building G potentiality.

" 55. We, therefore, are of the opinion that in view of the materials brought on record, the valuation of the land should be determined at Rs.50/- (Rupees Fifty only) per square meter. H

p. 558 Copy page pinpoint

A GROUP- II

56Copy pinpoint56. This batch of appeals (7 in all) relate to the claimants' lands adjoining villages Giriya, Baxipura and limits of Amreli town and the same are directed against the common judgment and order dt. 4.5.1999 passed in First Appeal Nos. 989/98 to 8 995/98 arises out main Land Reference Case No. 1/96 with consolidated Land Reference Cases Nos. 1/96 and 82/95 to 87/95 (7 in all) main Land Reference Case being No. 1/96. In these cases, the Notification under Section 4 was published in the daily news paper on 29.11.92 and 30.11.92, the same C was notified in the Gazette on 10.12. 92 and was affixed at the concerned places on 14.12.92 followed by Notification under S. 6 published on 18.2.93 in the Gazette and in the news paper on 20.2.93 and the same was affixed at the concerned places on 24.2.93. D

57Copy pinpoint57. In Survey No. 89 of Village Giriya, lands of 153 la~ holders were acquired. The Special Land Acquisition Officer published the Award on 23.2.95 awarding compensation at the rate of Rs. 12/- per sq. mtr. (Rs. 1200/- per Are) for Bagayat E land and Rs. 8/- per sq. mtr. (Rs. 800/- per Are) for Jirayat land and Rs.50/- per sq. mtr. for non-agricultural land. Out of that 153 claimants, 132 claimants have not filed any reference under ~~ection 18 of the Act and accepted the award of Rs.50/- per sq. mtr. awarded by the Land Acquisition Officer. Being F aggrieved by and dissatisfied with the said Award, some of the claimants applied for reference of their cases in terms of Section 18 of the Act stating that they are entitled to • compensation at the rate of Rs. 1000/per sq. mtr. References thereinto were made by the District Collector.

58Copy pinpoint58. The Reference Court decided all these references by its common order dt. 9.1.98 awarding compensation at the rate of Rs. 400/- per sq.mt. with other benefits. The amount of compensation in respect of agricultural lands was reduced to Rs.300/- per square meter by the High Court while making a H distinction between the agricultural lands and non-agricultural

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 559 ANR. v. MADHUBAI GOBARBHAI & ANR. [S.S. SINHA, J.]

lands. A

59Copy pinpoint59. Indisputably, there are 18 cases pending before the Reference Court. In case of neghbouring non-agriculture Survey No. 82 of village Giriya there were 23 claimants, 5 of them had not prayed for reference under Section 18 of the-Act. Reference 8 Court awarded Rs.75/- per sq. mtr.. to 18 claimants and they accepted the same.

60Copy pinpoint60. In these cases the lands of the claimants are situated adjoining the villages Giriya, Baxipura and limits of Amreli town. Their lands have also been acquired for the 'THEBI IRRIGATION C PROJECT'. On behalf of the claimants 7 witnesses were examined and the Department had examined 3 witnesses. The claimants' witness No. 1 Gunvantbhai Vallabhbhai has stated that the land bearing S. No. 90/1 is situated on the eastern side of Amreli Rajkot road and land S. No. 89 is also on the same o direction touching the land of S. No. 90/1. According to this witness, land bearing S. No. 91 is situated on the western side of the road touching the road side. The lands of S. No .. 90/1 and 91 are situated on the east and west side of the said Amreli-Rajkot Highway respectively and land S. No. 89 is also E- on the eastern side touching the land of S.No. 91. The ReferEl_nce Court referred to the Map (Exh. 39) and noted that the land bearing S. No. 44 touches on its southern side the land bearing S. No. 91 which is on the western side of the road and land bearing S. No. 39 touches S. No. 43 being on the same F direction. The land of S. No. 39 pertains to 'Surya Garden' Hotel and for which the District Collector has ordered to pay premium @ Rs. 300/- per square meter for conversion thereof for use as non-agricultural purposes from agricultural purposes. All these three Survey Numbers are in the one line and on the western _side of the Highway. According to the Geographic~! G situation, on the other side of the road i.e. to say the eastern , side of the road, the land bearing S. No. 51 is just opposite the land of S. No. 39 and on the eastern side the land earmarked for building an Aerodrome being S. No. 51; while H

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A S. No. 44 touches the border of the Aerodrome land S. No. 51 .. going towards northern side of S. No. 44. The land of S. No. 91 is adjacent to it and at the same time on the western side of S. No. 44 is S. No. 50 and S. No. 49 and the border of land of S. No. 50 touches the land of S. No. 89 to some extent. Thus, 8 the lands bearing S. No. 39 and 51 ('Surya Garden" Hotel) and lands of Aerodrome are situated respectively on the opposite side of the Road. S. No. 4~ touches the border of the acquired , land of S. No. 91. On the western side of S. No. 43, there are lands of S. Nos. 41and42 and the land of S. No. 38 touches the southern side of S. No. 41. Thus the Geographical situation of all these Survey Numbers show that these lands are around the acquired land.

61Copy pinpoint61. P.W. No. 1 Gunvantbhai Vallabhbhai deposed in regard to the particulars of the same Survey Numbers around the acquired land. He has stated that the award for the land bearing S. No. 43 is at the rate of Rs. 275/- per sq.mt.. S. No. 43 touches the border of the said Amreli-Rajkot road, which is also clear from the Map Exh. 39. The land bearing S. No. 40 is, however, on the interior side of the road for which the amount of compensation awarded is at the rate of Rs. 70/- per sq.mt. According to this witness, some other lands bearing S. Nos. 41, 43/5, 40/4, 43/2 and 43/4 were also acquired and for these lands the Land Acquisition officer had awarded compensation at the rate of Rs. 150/- per sq. mt. This witness furttiermore stated that the land of S. No. 39 touches the road and just opposite to the land of the Aerodrome, where the "Surya Garden" Hotel is situated and for this land the Town Planning Department had also assessed the value at the rate of Rs. 217/ - vide letter dt. 16.10.92. He also stated that the land of S. No. G 39 is a new tenure land and to convert this land for Non Agriculture purposes the Collector, Amreli fixed the premium of Rs. 300/- per sq. mtr. by a Circular letter dated 27.11.1992, marked as Exh. 46. According to him, even in cases of some . other S. No. viz. S. No. 56, which is only 300 mis. away from H the acquired land by a Registered Sale Deed No. 900 dt.

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 561 ANR. v. MADHUBAI GOBARBHAI & ANR. [S.B. SINHA, J.] ~ 11.5.92, land was sold out at the rate of Rs. 690/- per sq. mtr. A and that lands being S. Nos. 34 and 4019, which are about 200 meters from the land in question i.e. plot Nus. 10, 17, 18, 60 and 6 were also sold out at a high price.

62Copy pinpoint62. The order of the Reference Court was challenged by B the appellants before the High Court mainly on the following grounds:-

"(a) The Reference Court ought to have believed the deposition of D.W. No. 1 examined at Exh. 69, who had passed the award Exh. 38 becaase he had taken into c consideration sale instances for 5 years and because he had passed the Award Exh. 38 looking to the market value as per the sale instances of village Giriya in the list of the 5 years sale instances at Exh. 35; D (b) That the Reference Court had erred in holding that S. Nos. 90/1 and 91 are likely to be converted into non agricultural lands;

(c) It was argued with reference to the deposition of D.W. No. 2 at Exh. 71 that as per the copy of the sale deed Exh. E 72 the said land ad measuring 1000 sq.mts. was sold for Rs. 18500/- on 2.11.88, that means at the rate of Rs. 18.5 per sq. mt. and this price at which the land was purchased by the claimants should be considered to be the best evidence and that this should form the acid test for the purpose of determining the rate at which the compensation should be awarded."

63Copy pinpoint63. In regard to geographical situation of the lands and whether the lands are in developed area or in the vicinity of the developed area, the High Court opined:- • "13.15 We have considered the entire evidence in this case in its entirety and have also gone through the analysis of the evidence, as has been made by the Reference H

p. 562 Copy page pinpoint

A Court. It is clearly borne out that the lands acquired in these cases are of S. No. 91 (in Land Refer!'lnce Case Nos. 82/ 95, 83/95 and 84/95), S. No. 89 (in Land Reference Cases Nos. 85/95, 86/95 and 87/95) and S. No. 90/1 (in Land Reference Case No. 1/96). So far as the geographical B situation of these lands and as to whether these lands are in developed area or in the vicinity of the developed area is concerned, we find that the evidence, which has come from both the sides, is not at much variance inasmuch as the lands are on the eastern er western side of the Amreli- c Rajkot Highway and also as per the Map Exh. 39. The lands of various S. Nos. , to which the reference has been made herein-above, are all situated in a developed area and the same are around the acquired land. If the lands of various S. Nos. around the acquired land are developed, there is no reason to say that the acquired lands are not D comparable with the lands of various S. Nos. such as S. Nos. 38, 39, 40, 41, 42, 43, 44, 49, 50, 51 and 56. The ' situation of 'Surya Garden Hotel' in S. No. 39 and the existence of godowns for Scoters and residential premises between the acquired lands of the claimants and the 'Surya E Garden Hotel' is also established. Similarly the situation of the Cement Factory between the lands of S. Nos. 39 and 91 is also made out. The deposition with regard to the municipality pavilion, land of Aerodrome, houses etc. on the eastern side of the road alongwith residential ' F houses also cannot be disbelieved. Thus in absence of any effective and specific cross-examination with regard to the development of the area in question, it cannot be disbelieved that the lands around th~ acquired lands are developed area. In the judgment itself at page 20 the G Reference Court has recorded as under:-

"There is no cross-examination with respect to the .. development of area and therefore there is nothing to disbelieve the say of the witness that the area nearby H acquired lands are not developed."

DY. COLLECTOR, LAND ACQUISITION, GUJARAT & 563 ANR. v. MADHUBAI GOBARBHAI & ANR. [S.B. SINHA, J.]

It appears that the word "not" before the word 'developed" A -I: is a mistake typographical or otherwise and on that basis no argument could be built up to say that the lands nearby ' the acquired lands are not developed.

13.16 The depositions with regard to the acquired lands B that it has wells, pacca houses and the trees, the details of which have been mentioned hereinabove, has remained untrammeled in the cross-examination of P.W.No. 1. All these details do add to the quality of the acquired land for " the purpose of fixing the rate at which the compensation is to be given. The case that lands of S. No. 89, which have c been acquired, are non agricultural lands and the acquired lands of S. Nos. 90/1 and 91 are likely to be converted as non agricultural land has also remained intact. Even D.W. No. 1, who has been claimed as a star witness on behalf of the Department by the appellants, has admitted that lands of S. Nos. 90/1 and 91 are iikely to be converted into non agricultural lands. The lands of both these S. Nos.,90 and 90/1 are also surrounded by non agricultural lands and are in posh locality near Amreli township. Even if a land is not a non agricultural land, if the same is surrounded by non agricultural lands and the same is likely to be converted into non agricultural land as per the say of the Land Acquisition Officer himself, it is certainly an important and relevant factor for the purpose of fixing the rate at which \ the compensation is to be awarded at par or with close proximity with the rate in respect of non agricultural land. D.W. No. 2, who was examined by the Department, has also admitted that going further towards Amreli town, there are godowns, show room of Bajaj Scooter, Jalaram Commercial Complex, Meghnath commercial Centre, and G Surya Garden Hotel etc. He has also. admitted that area around this land are most developed and posh area of Amreli City and further that the lands of S. Nos. 90 and 91 "' are situated near the above S. No. 43. D.W. No. 3, who was examined at Exh. 73 by the Department, had sold out H

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