Gujarat High Court
Valkubhai Mamaiyabhai vs Deputy Collector Land Acquisition And … on 9 May, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/MCA/604/2025 ORDER DATED: 09/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR RECALL) NO. 604 of
2025
In
R/FIRST APPEAL NO. 1391 of 2019
With
R/MISC. CIVIL APPLICATION NO. 606 of 2025
In
R/FIRST APPEAL NO. 939 of 2019
With
R/MISC. CIVIL APPLICATION NO. 607 of 2025
In
R/FIRST APPEAL NO. 936 of 2019
With
R/MISC. CIVIL APPLICATION NO. 608 of 2025
In
R/FIRST APPEAL NO. 1388 of 2019
With
R/MISC. CIVIL APPLICATION NO. 611 of 2025
In
R/FIRST APPEAL NO. 1392 of 2019
With
R/MISC. CIVIL APPLICATION NO. 613 of 2025
In
R/FIRST APPEAL NO. 937 of 2019
With
R/MISC. CIVIL APPLICATION NO. 615 of 2025
In
R/FIRST APPEAL NO. 1390 of 2019
With
R/MISC. CIVIL APPLICATION NO. 617 of 2025
In
R/FIRST APPEAL NO. 1389 of 2019
With
R/MISC. CIVIL APPLICATION NO. 635 of 2025
In
R/FIRST APPEAL NO. 938 of 2019
======================================
VALKUBHAI MAMAIYABHAI
Versus
DEPUTY COLLECTOR LAND ACQUISITION AND
REHABILITATION IRRIGATION & ANR.
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NEUTRAL CITATION
C/MCA/604/2025 ORDER DATED: 09/05/2025
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======================================
Appearance:
MR SANJAY M AMIN(130) for the Applicant
MR. AKASH CHHAYA, AGP for the Opponent Nos. 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)
1. The present applications are filed by the original
appellants seeking recall of the order dated 9 th September,
2024 passed by this Court in First Appeal no.936 of 2019 and
allied matters.
2. We have heard Mr. Sanjay M. Amin, learned advocate for
the applicants and Mr. Akash Chhaya, learned AGP, who has
appeared on behalf of the respondent – State authorities.
3. At the outset, learned advocate for the applicants has
invited our attention to the fact that the appeal was listed for
final hearing on 15th July, 2024 and thereafter, the arguments
were concluded on 16th July, 2024 and the matter was
reserved on same day for judgment. On 6 th September, 2024
the appeal was notified for pronouncement of judgment,
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which was postponed to 9th September, 2024 and in the
operative order it was pronounced that the Court partly
allowed the appeal at the final hearing stage. However, the
copy of the aforesaid judgment, uploaded on 16 th January,
2025, reveals that the appeal is dismissed.
4. Noticing the aforesaid submission of the learned
advocate for the appellants, we had gone through the record.
From the record of the case status, it has transpired that
appeal was partly allowed at the final hearing stage. For the
reasons assigned in the order dated 9 th September, 2024, we
had called-up on the respective parties to address the Court
on merits and the matter was reheard with the consent of the
respective parties and the R. & P. were called for, which has
been received by this Court.
5. Learned advocate for the applicants had mainly
submitted that the different exemplars were produced before
the Reference Court, which include the exemplar of land
acquired at village Bhatavavdi (Exh.31), the sale instances of
the non-agriculture plot of village Nana Gujariya (Exh.29),
various sale instances (Exhs.40 to 45) vide list produced by
the respondent State Authorities at Exh.36. Apart from the
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aforesaid sale instances, the respondent State authorities had
also produced the map at Exh.46 reflecting the position of the
acquired lands as against the aforesaid sale instances.
5.1 Learned advocate had further invited our attention to
the findings and reasons recorded by the Reference Court to
point-out that as against the market value of the Bagayat land
fixed by the Special Land Acquisition Officer @ Rs.770/- per
Are and Rs.550/- per Are of Jirayat lands, the Reference Court
has awarded additional amount of compensation @ Rs.80/- per
sq. mtr. in case of Bagayat land and Rs.85/- per sq. mtr. in
case of Jirayat land. He had further pointed-out that the
Reference Court has miserably failed to consider the best
exemplar produced on record at Exh.29, though of different
village of Nana Gujariya without appreciating the fact that in
the cross-examination, the witness of the respondent – State
authorities has admitted that both the lands of village Mota
Gujariya and Nana Gujariya are submerged in the
construction of the Dam. He has further pointed-out that both
the villages share a common village boundary being adjoining
to each other and therefore, by applying principles laid down
by the Hon’ble Supreme Court in case of R. Saragapani
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(dead) through Lrs. Vs. Special Tahsildar, Kurur –
Dindigul Broad Gauge Line reported in (2011) 14 SCC
177, even the valuation of the non-agriculture land of small
size plot can be treated as comparative exemplar for the
purpose of determination of value of the agriculture land. He
had invited our attention to the relevant observations whereby
in the facts of the case, the Hon’ble Supreme Court has
considered the value of small size non-agriculture land for the
purpose of determination of value of the acquired agriculture
land by applying 1/3rd deduction to the value of the non-
agriculture land.
5.2 Learned advocate for the applicants had further invited
our attention to the reasons assigned by this Court by not
entertaining the captioned appeal and has submitted that the
aforesaid contention has been raised by the applicants as
recorded in para-3 of the order dated 9 th September, 2024
passed in the captioned appeal. However, this Court has not
entertained the aforesaid submission by holding that the lands
of adjoining village being acquired for the same project
though being awarded higher compensation cannot be a
ground to apply the same rate of compensation in case of
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lands acquired from different villages. According to the
learned advocate, the aforesaid reasoning of the Court is
erroneous and against the principles laid down by this Court
in case of Special Land Acquisition Officer Vs.
Ramanbhai Haribhai, reported in 2001 (3) GLH 655 and of
the Hon’ble Supreme Court in case of Thakersinhbhai
Devjibhai reported in AIR SCW 2417.
5.3 Learned advocate for the applicant had further
submitted that the Hon’ble Supreme Court has held that when
the matter relates to payment of amount of compensation to
the land losers and if two views are possible, in order to
advance the cause of justice, the Court should always prefer
the view, which may fulfill the object of the Act, which is to
grant just and proper compensation to the affected
landowners, whose lands are acquired for the public purpose.
5.4 Learned advocate had further invited our attention to
the reasons assigned by this Court while upholding the
approach of the Reference Court in referring to the
comparable instances produced on record at Exhs.40 and 41
to be the best exemplar for the purpose of determination of
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compensation. Learned advocate had submitted that this
Court while passing the order dated 9 th September, 2024
failed to consider the legal position that the evidentiary value
of the Land Acquisition Officer’s award is in the nature of an
offer and it cannot be read as evidence within the meaning of
Section 2 of the Evidence Act.
6. This Court had called-upon the learned advocate to take
us through the relevant sale instances as relied upon by the
Reference Court at Exhs.40 and 41. While referring to the
aforesaid documents, learned advocate had submitted that
mere production of the photocopy of the sale instances cannot
be treated as having been proved to be read as an evidence.
He has therefore submitted that the order dated 9 th
September, 2024 may kindly be recalled and the appeal
preferred by the appellants may be allowed by enhancing the
additional amount of compensation by treating the exemplar
produced at Exh.29 to be a comparable sale instance.
7. Mr. Akash Chhaya, learned AGP for the respondent –
State authorities had supported the findings and reasons
assigned by the Reference Court as well as by this Court as
recorded in its order dated 9th September, 2024 passed in the
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captioned appeal.
8. Having heard the learned advocates appearing for the
respective parties, we have re-examined the case by taking
into consideration the aforesaid submissions of the learned
advocate for the applicants in light of the relevant documents
forming part of the original record. As rightly pointed-out by
the learned advocate for the applicants, before the Reference
Court the original claimants have examined the witness
Valkubhai Mamaiyabhai, who is one of the claimants of LRC
no.20 of 2005 at Exh.21 along with the documentary evidence.
The details of which are reproduced as under :-
~:: Documentary Evidence ::~
Sr.
Particular Exh.
no.
True copy of the Sale deed bearing
1 23
Registration no.104 of 2000
True copy of the Sale deed bearing
2 24
Registration no.47 of 2000
True copy of the Sale deed bearing
3 25
Registration no.114 of 2000
True copy of the judgment and award
4 29
passed in LRC no.127 of 2005 (Exh.32)
True copy of the judgment and award
5 30
passed in LRC no.127 of 2005 (Exh.26)
True copy of the judgment and award
6 31
passed in LRC no.127 of 2005 (Exh.123)Page 8 of 17
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9. As against the aforesaid evidence produced on record by
the original claimants, the respondent State authorities has
brought on record the following documentary evidence, the
details of which are reproduced as under :-
~:: Documentary Evidence ::~
Sr.
Particular Exh.
no.
Photocopy of the sale deed bearing
1 registration no.147 of 1997 of village 40
Mota Gujariya
Photocopy of the sale deed bearing
2 registration no.148 of 1997 of village 41
Mota Gujariya
Photocopy of the sale deed bearing
3 registration no.382 of 2004 of village 42
Mota Gujariya
Photocopy of the sale deed bearing
4 registration no.139 of 2005 of village 43
Mota Gujariya
Photocopy of the sale deed bearing
5 registration no.554 of 2003 of village 44
Mota Gujariya
Photocopy of the sale deed bearing
6 registration no.87 of 1996 of village 45
Nana Gujariya
Copy of the award of LAQ no.32 of 1999
passed by the Special Land Acquisition
7 47
Officer and the copy of the map
reflecting the sale instance.
10. Thus, the reference Court, upon appreciation of the
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aforesaid sale instances and the reliance placed on the earlier
awards passed by the Reference Court, as recorded earlier by
us in the order dated 9 th September, 2024 passed in the
captioned appeal, the reference Court has discarded the
evidence at Exh.31, which was the award passed in the case
of Village Bhatavavdi by holding that no evidence is produced
by the claimants to establish the distance between two
villages i.e. Bhatavavdi and Mota Gujariya. Further, the
reference Court has refused to take into consideration the
sale deeds produced on record at Exh.29 by noting that the
aforesaid sale instances pertains to the small size non-
agriculture plot, which was subject to industrial use and
belongs to a different village viz. Nana Gujariya. At the same
time, the sale instances produced on record by the claimants
at Exhs.23 to 25 has also not been accepted by the Reference
Court by noting that the said sale instances pertains to land of
village Nana Gujariya and Umariyadi. Thus, the reference
Court has mainly focused on the evidence produced by the
respondent State authorities. On comparison of the sale
instances produced on record from Exhs.40 to 46, the
Reference Court has found the sale instance of village Mota
Gujariya produced at Exhs.40 and 41 being part of the same
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village, to be treated as the best exemplar for the purpose of
determination of actual market value of the lands acquired.
11. Noticing the aforesaid findings and reasoning of the
reference Court, this Court while passing the order dated 9 th
September, 2024 was convinced with the aforesaid findings
and reasoning. However, this Court has committed error in
not noticing the fact that what was produced on record was
merely the true copy of the photocopy of the sale instances,
which were relied upon by the Special Land Acquisition
Officer while passing the award under Section 11 of the Act.
12. This led us to revisit the evidence of the witness viz.
Hemantbhai Dalubhai Patel examined on behalf of the
respondent – State Authorities at Exh.37. On close
appreciation of the evidence of the aforesaid witness and his
cross-examination, applying the principles laid down by this
Court in the case of Special Land Acquisition Officer Vs.
Ratilal Narsinhbhai Patel reported in 1982 (2) GLR 755
and of the Hon’ble Supreme Court in case of Chimanlal
Hargovinddas Vs. Special Land Acquisition Officer
reported in (1988) 3 SCC 751, we find that merely because
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the true copy of the photocopy of the sale instance has been
exhibited, it cannot be read as an evidence within the
meaning of Section 2 of the Evidence Act, as the respondent
State authorities have failed to prove its contents by
examining the witnesses in this regard. Even otherwise as
held by the Hon’ble Supreme Court, the Court cannot accept
the award of Land Acquisition Officer as an evidence for the
purpose of valuation of land unless the same is produced and
proved before the Court. Hence, this Court has fell in error
while upholding the aforesaid findings and reasons assigned
by the reference Court and not entertaining the appeal of the
original claimants.
13. This brings us to the issue of determination of the
amount of compensation in light of Exh.29 as relied upon by
the original claimants. In absence of any comparable sale
instance left-out, the only best exemplar available on record is
the sale instance produced on record at Exh.29 of adjoining
village Nana Gujariya. We have reconsidered the arguments of
the learned advocate for the applicants and the findings and
reasons assigned by this Court not entertaining the captioned
first appeal for the findings and reasons assigned by us, we
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still find that the sale instance of the land produced on record
at Exh.29 belongs to different village Nana Gujariya. The bare
reading of the contents of the aforesaid sale deed clearly goes
to suggest that out of 1 Acre of the land, which is 4047 sq.
mtr. of land, the sale deed was executed in respect of part of
the aforesaid parcel of land i.e. to the extent of 53.34 sq. mtr.
as against which the total sale consideration of Rs.43,600/-
was agreed. The comparison of date of execution of sale deed
indicates that the said sale deed was executed on 14 th March,
2000, whereas the Notification under Section 4 of the Land
Acquisition Act declaring the intention to acquire the lands in
the present case was issued on 17th/30th August, 2000. Even
comparing the date of Section 4 Notification as against the
date of sale instances relied upon at Exh.29, there is hardly a
difference of six months’ time. Thus, we have tried to
appreciate the aforesaid sale instance by considering the
proximity in the situation of the land as well as the timeline in
order to determine the market value of the lands acquired.
Admittedly, the sale instance relied upon at Exh.29 pertains to
a small size non-agriculture plot subject to industrial use,
which is admeasuring 53.34 sq. mtr. only as against the
acquired agricultural lands of adjoining village of Mota
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Gujariya, the area of such acquired lands varies from 71.26
Are to 639.41 Are. Considering the fact that the aforesaid
both the villages share village boundaries and are adjoining to
each other and the proximity of distance as can be gathered
from the map produced on record at Exh.46, we are inclined
to accept the said sale instance at Exh.29 to be treated as the
comparable instance for the purpose of determination of the
market value of the lands acquired.
Having held so, the issue of determination of the
additional amount of compensation is required to be looked
into. Considering the principle laid down by the Hon ‘ble
Supreme Court in case of Thakarsinhbhai Devjibhai
(Supra), we are of the view that the distance between the two
classes of lands in the facts of the case, may not be derogative
for the claim put forward by the claimants, more particularly,
in absence of any contradictory material being brought on
record by the respondent State Authorities to show that the
quality and potentiality of such land is inferior as recorded
earlier, no evidence has been brought on record on behalf of
the State to establish such facts on record.
14. Noticing the holding of the land owners of the respective
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acquired lands, it cannot be said that the sale instance
produced on record at Exh.29 can be ignored on the ground of
smallness of the land. Again, no evidence has been brought on
record to suggest that the distance between the two villages
would be derogative to the claim by establishing that the
quality and potentiality of the land varied. 2001 (3) GLH
Page 655 – Land Acquisition Officer Vs. Ramanbhai
Haribhai).
15. Thus, considering the ratio of the judgment of Hon ‘ble
Supreme Court in case of R. Saragapani (dead) thrugh Lrs.
Vs. Specaial Tahsildar, Kurur – Dindigul Broadguage
Line reported in (2011) 14 SCC 177, applying the principle
of 1/3rd deduction in case of sale exemplar of non-agriculture
land, the market value of the land of village Nana Gujariya as
established on record at Exh.29, whereby the land was sold
for an amount of Rs.43,200/- of plot area of 53.34 sq. mtr.,
which is Rs.810/- per sq. mtr., we are of the view that the
original claimants shall be entitled to the 1/3 rd of the aforesaid
amount which comes to Rs.268.00 ps. per sq. mtr.
16. For the reasons recorded, we hereby allow the present
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applications and recall the order dated 9 th September, 2024
passed in First Appeal no.1391 of 2019 and allied matters.
The First Appeal stands partly allowed to the extent of
enhancing additional compensation by applying 1/3 rd
deduction to the value of the sale instance of Exh.29. Hence,
market value of the land is determined at the rate of Rs.268/-
per sq. mtr. as claimed.
17. For the foregoing reasons, 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
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fees as against the amount of compensation awarded before
proceeding with the disbursement of the award amount in
favour of the claimants. With these observations, present
applications stand allowed. R. & P. be sent back forthwith.
(BIREN VAISHNAV, J.)
(NISHA M. THAKORE, J.)
AMAR RATHOD…
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