Gujarat High Court
Shantaben Jivabhai vs State Of Gujarat on 9 May, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/MCA/605/2025 ORDER DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR RECALL) NO. 605 of
2025
In R/FIRST APPEAL NO. 4388 of 2019
With
R/MISC. CIVIL APPLICATION NO. 610 of 2025
In
R/FIRST APPEAL NO. 4391 of 2019
With
R/MISC. CIVIL APPLICATION NO. 614 of 2025
In
R/FIRST APPEAL NO. 4392 of 2019
With
R/MISC. CIVIL APPLICATION NO. 616 of 2025
In
R/FIRST APPEAL NO. 4393 of 2019
With
R/MISC. CIVIL APPLICATION NO. 633 of 2025
In
R/FIRST APPEAL NO. 4387 of 2019
With
R/MISC. CIVIL APPLICATION NO. 634 of 2025
In
R/FIRST APPEAL NO. 4390 of 2019
With
R/MISC. CIVIL APPLICATION NO. 636 of 2025
In
R/FIRST APPEAL NO. 4389 of 2019
=============================================
SHANTABEN JIVABHAI
Versus
STATE OF GUJARAT & ANR.
=============================================
Appearance:
MR SANJAY M AMIN(130) for the Applicant(s) No. 1
Mr. Akash Chhaya, Asst. GOVERNMENT PLEADER for the
Opponent(s) No. 1,2
=============================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 09/05/2025
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
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NEUTRAL CITATION
C/MCA/605/2025 ORDER DATED: 09/05/2025
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1. The present applications are filed at the instance of the
original appellants seeking recall of the order dated
09.09.2024 passed by this Court in First Appeal No.4387 of
2019 and allied matters.
2. We have heard learned advocate Mr. Nitin Amin appearing
for the applicants and Mr. Akash Chhaya, learned Assistant
Government Pleader has appeared on behalf of the
respondents authorities. On the previous occasions, the
matters were notified for hearing, whereby, the learned
advocate for the applicants at the outset, has submitted that
when the order was pronounced by this Court on 09.09.2024
along with a group of matters, it was held to be partly
allowed. The case status details also reflected that the appeals
were disposed of as partly allowed at the final hearing stage,
however, the uploaded copy of the judgment reveals that the
appeals were dismissed.
3. Noticing the aforesaid facts and having perused the order
dated 09.09.2024 passed by us in the main captioned appeals,
considering the grounds and submissions made by the learned
advocate highlighting the merits of the case, we had re-heard
the matter with the consent of the learned advocate for the
respective parties. The record and proceedings were once
again called for by this Court to re-appreciate the arguments
of the learned advocate for the applicants.
4. Learned advocate Mr. Amin for the applicants has
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C/MCA/605/2025 ORDER DATED: 09/05/2025
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submitted that this Court as well as Reference Court
committed serious error in not considering the judgment of
the Reference Court passed in Land Reference Case No.127 of
2005, which was produced on record at Exh.79. He has
further submitted that the sale instance of the village Nana
Gujariya was produced at Exh.78, which has been proved
through the evidence of the purchaser of the said land viz.
Sanatkumar Bamtani, who has been examined by the original
claimants at Exh.77. He has further submitted that by
accepting the aforesaid sale instance and the evidence of
witness, the Reference Court in the case of Land Reference
Case No.127 of 2005 has determined the market value of
similarly situated acquired lands of same village at the rate of
Rs.200/- to Rs.400/- per sq. mtrs. Despite the aforesaid
argument being canvassed, this Court has refused to consider
the case of enhancement of award amount to the tune of
Rs.268/- per sq. mtrs. Learned advocate has invited our
attention to the principles laid down by this Court in the case
of State of Gujarat through Special Land Acquisition
Officer vs. Amaji Mohanji Thakore reported in 2010(4)
GLR 3589 and of the Hon’ble Supreme Court in the case of
R. Sarangpani vs. Tahshildar, reported in (2011) 14 SCC
177. Learned advocate has submitted that this Court fell in
error by holding that merely because the said exemplar was
forming part of the same village may not be a relevant criteria
as the sale instance produced on record at Exh.78 relates to a
small size non agricultural plot which was subject to industrial
use. Learned advocate has further submitted that the Court
failed to appreciate the settled legal position as laid down by
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the Hon’ble Supreme Court in the case of Thakarshibhai
Devjibhai And Ors. vs Executive Engineer, Gujarat
reported in AIR 2001 SCW 2417. By referring to the
aforesaid decision, learned advocate has submitted that even
if the distance between two classes of lands is there itself
would not derogate factor to the claim of the claimants unless
there are other materials to show that quality and potentiality
of such lands are different and inferior. According to him, no
evidence has been led on behalf of the State in this regard. He
has further submitted that the largeness of acquired land has
been taken into consideration by clubbing the acquired lands
together, in fact the holding of each landowner are of small
area. Thus, according to him, the reasons assigned by this
Court of a small piece of land of sale instance relied upon
being not comparable, is not tenable. The reliance was also
placed on the decision of this Court in the case of Special
Land Acquisition Officer vs. Ramanbhai Haribhai
reported in 2001(3) GLH 655. He has further submitted that
as against the aforesaid sale instance, the Court has taken
into consideration Exh.92, which is an award passed by the
Reference Court in Land Referenced Case Nos.11 of 2004 to
24 of 2004 in case of land acquired of the adjourning village
Mota Gujariya. He has therefore submitted that once the sale
instance of the same village is available and offers a higher
value as compared to the land acquired of different villages
then this Court ought to have considered the aforesaid sale
instance for the purpose of determination of the additional
amount of compensation. By making aforesaid submissions,
learned advocate has urged to recall the order dated
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09.09.2024 passed by this Court in the captioned appeals and
to enhance additional amount of compensation by taking into
consideration the sale instance produced at Exh.78 and the
award passed by the Reference Court has produced on record
Exh.79 in respect of acquisition of same village.
5. Mr. Chhaya, learned Assistant Government Pleader
appearing for the respondent State authority has placed
reliance upon the order dated 09.09.2024 passed by this
Court in the captioned appeals as well as findings and reasons
assigned by the Reference Court in the impugned judgment
and award and has urged this Court to not to entertain the
present application seeking recall of the order dated
09.09.2024 passed in the captioned appeals.
6. Having heard the learned advocates for the respective
parties and having re-examined the order dated 09.09.2024,
in light of the submissions made by the learned advocates for
the respective parties, we have closely re-examined the
Record and Proceedings of the case in light of the submissions
made by the learned advocate for the applicants. The three
comparable instances available on record are indisputably the
sale instance dated 14.3.2000 of small size non agricultural
plot of same village Nana Gujariya (Exh.78), the judgment and
award passed in LAR Case Nos.127 of 2005 to 147 of 2005
(Exh.79) and the judgment and award passed in LAR Case
Nos.14 of 2005 to 24 of 2005 (Exh.92), for the purpose of
determination of additional amount of compensation. The
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aforesaid arguments canvassed by the learned advocate for
the applicants has been dealt by us in the order dated
09.09.2024, however while considering the submission with
regard to accepting the sale instance produced on record
Exh.78 for the purpose of determination of the claim of
enhancement erroneously, we have noted that the registered
sale deed was executed on 14.03.2000 for consideration of
Rs.43,200/- which would come to the rate of Rs.10.67 ps per
sq. mtrs, by observing that the sale deed was in respect of 1
acres of land. However, on re-examination of the aforesaid
sale deed at Exh.78, we realized that the sale deed was
executed in respect of 53.34 sq. mtrs of the plot out of total
area admeasuring acres 1.00 gunthas (4047 sq mtrs). Thus,
the market value of aforesaid land as on the date of execution,
which is 14.03.2000, for consideration of Rs.43,200/-, the sale
was at the rate of Rs.810/- per sq. mtrs. Having noted so,
while considering the issue of smallness of non agricultural
plot as against the area of acquired lands for treating it as
comparable exemplar, we had relied upon the broad
principles laid down by the Hon’ble Supreme Court in the
case of Chimanlal Hargovinddas vs Special Land
Acquisition Officer reported in (1988) 3 SCC 751.
According to us, to treat a comparable instance, two
important criteria i.e. proximity from time angle and proximity
from situation angle were required to be considered to arrive
at such a conclusion. Admittedly, the aforesaid sale exemplar
is forming part of the same village. As regards proximity in
time of the acquired land is concerned, indisputably, the sale
deed at EXH. 78 was executed on 14.3.2000. As against that,
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the Notification under Section 4 of the Land Acquisition Act
for acquisition of present set of lands was published on
18.1.2001, therefore the sale exemplar relied upon is prior in
point of time, as against the Notification issued under Section
4 of the Act and both are of the same village. This brings us to
the issue of the nature of lands. The instance relied upon by
the original claimant indisputably relates to industrial use /
residential small size plot of Gamtal area. Hence, we were of
the view that the same cannot be treated as a comparable
instance and had therefore, not found it was a case to
consider for enhancement of compensation, by applying the
principle of 1/3rd deduction as considered in the case of
Amaji Mohanji Thakore (supra). However, in the present
recall applications, learned advocate has invited our attention
to the decision of the Hon’ble Supreme Court in the case of
Deputy Collector vs. Madhubhai Gobarbhai, reported in
(2009) 15 SCC 125 wherein, the sale instance of non
agricultural land relied upon for acquisition of agricultural
land has been considered by applying 1/3rd deduction. Our
attention was also invited to the judgment of the Hon’ble
Supreme Court in the case reported in Kazi Moinuddin Kazi
Bashiroddin vs. The Maharashtra Tourism Development
Corporation Limited., 2022 (14) Scale 490 wherein the
Hon’ble Supreme Court has held that when the matter relates
to payment of amount of compensation to the land losers, if at
all two views are possible, the view that advances the cause of
justice is always to be preferred rather than the other view,
which may draw its strength only from technicalities. A
similar view has also been taken by the Hon’ble Supreme
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Court while considering the sale of small areas as against the
larger area of acquired land by following the principle of 1/3rd
deduction as well as deduction towards development, in the
case of HP Housing Board vs. Bharat S. Negi and others
reported in (2004) 2 SCC 184 which is subsequently
followed in the case of R. Sarangapani vs. Tahsildar
reported in (2011) 14 SCC 177 . In our opinion, on overall
consideration of evidence brought on record and in light of
the aforesaid principles laid down by the Hon’ble Supreme
Court, more particularly, noticing the principle laid down in
the case of Mehrawal Khewaji Trust(Regd) vs State Of
Punjab & Ors reported in (2012) 5 SCC 432, where the
Court has laid down that when there are more than one sale
instance the highest price shall be taken into consideration
and average method should not be applied and / or at the
most 20% deduction to be considered in case of small plots,
the present applications deserves consideration.
7. We have once again given thoughtful consideration to the
submissions made by learned advocates for the respective
parties. We do not agree with the proposition advanced by the
learned advocate for the appellant that since the lands are
situated in the same village, it has to be accepted as the
comparable instance for determination of additional
compensation. On the contrary the law laid down by the
Hon’ble Supreme Court in the case of Madhubhai
Gobarbhai (supra) it is held that even if the land is of one
village, the entire village is not to be given one compensation.
The Courts are expected to take holistic approach and take
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into consideration relevant factors before treating a sale
exemplar as comparable. The Hon’ble Supreme Court in the
facts of the case has identified the purpose of acquisition,
potentiality of development and nature of land as relevant
factors to be applied for the purpose of identifying the sale
exemplar as a comparable instance. Considering the aforesaid
legal position in light of the evidence on record, we are of the
view that though sale instance produced at EXH. 78 which has
been proved and established through the evidence of witness
examined at EXH. 77 and read as evidence in the LAR case
no.127 of 2005 ( EXH.79), in absence of any sale deeds of
same village, the aforesaid sale instance though being non
agricultural small sized plot for industrial purpose requires to
be treated as best exemplar available on record as against the
reference court award of agricultural lands of adjoining
village of Mota Gujariya (EXH. 92). Hence, we are inclined to
recall the order dated 09.09.2024 passed by this Court in
captioned appeals.
8. From the schedule of acquired lands in LAR Case No. 11 of
2004 to 24 of 2004 , it is apparent that the area of lands vary
from 15.18 sq. mtrs to 440.35 sq. mtrs, whereas the area of
sale instance at EXH.78 is 53.34 sq. mtrs. Considering the
aforesaid facts, in light of the principles laid down by the
Hon’ble Supreme Court in the case of Mehrawal Khewaji
(supra), we are of the view that applying 1/3rd deduction
towards development of the surrounding Gamtal area, it
would be appropriate to deduct 1/3rd towards the value of the
sale instance at Exh.78. Even otherwise, the lands acquired
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are to be utilized for the purpose of construction of reservoir
and are to be submerged. Therefore, there is no expense to be
incurred towards development of the acquired land. Hence,
market value of the land is determined at a rate of Rs.268/-
per sq. mtrs. as claimed by the original claimants.
9. For the foregoing reasons, the present applications are
allowed. The order dated 09.09.2024 passed by this Court
dismissing the First Appeals is hereby recalled. The captioned
appeals stands partly allowed to the extent by enhancing the
additional amount of compensation by applying 1/3rd
deduction to the value of sale instance produced on record at
Exh.78 by treating it as best comparable exemplar available
on record. Hence, market value of the land is determined at a
rate of Rs.268/- per sq. mtrs. as claimed. The original
claimants are entitled to all statutory benefits as awarded by
the Reference Court on such entire amount of compensation.
In light of the fact that the appeal has been allowed, the
respondent State Authorities are directed to deposit the
enhanced amount of compensation after deducting the
amount received towards award passed under section 11 of
the Act and additional amount received pursuant to the award
passed by the Reference Court. The aforesaid amount is
directed to be deposited with the Reference Court preferably
within a period of three months from the date of receipt of
this order. In case of amount being deposited, and on
appropriate orders being passed by the Reference Court with
regard to disbursement of amount of compensation, the
Registry shall verify the Court fees as against the amount of
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compensation awarded before proceeding with the
disbursement of the award amount in favour of the claimants.
Registry is directed to send back the Record and proceedings
of the case to the concerned court forthwith.
sd/-
(BIREN VAISHNAV, J)
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
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