R.M. Doshit, J.
1. These two appeals preferred under Section 54 of the Land Acquisition Act, 1894 arise from the judgment and order dated 3rd December, 1997 passed by the learned Asst. Judge, Nadiad, in Land Acquisition Case No. 140/88. The appellant in First Appeal No. 952/1998 is the Gujarat Housing Board, the acquiring body (hereinafter referred to as 'the Board'). The appellant in First Appeal No. 1848/98 is one Manibhai Mangalbhai, the constituted attorney of the land owners.
2. The subject-matter of these appeals are the lands bearing Survey Nos. 167, 168, 169, 173, 174/1, 175/1 and 175/2 admeasuring 32509 sq.mtrs. situated at Village Chaklasiparty, Taluka Nadiad, District Kheda (hereinafter referred to as 'the acquired lands). The said lands were proposed to be acquired by the Board for a housing scheme. The preliminary notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was published in the Official Gazette of the Government of Gujarat on 21st February, 1980. Declaration made under Section 6 of the Act was published in the Official Gazette on 30th April, 1981.
3. The acquired lands originally belonged to one Babarbhai Jethabhai and Natubhai Jethabhai. It is the claim of the appellant that the said Babarbhai Jethabhai and Natubhai Jethabhai had, on 15th July, 1977, executed an agreement for sale in favour of the appellant. The appellant had then made part payment of Rs. 20,000/- to the said Babarbhai Jethabhai and Natubhai Jethabhai. Pursuant to the said agreement for sale, the said Babarbhai Jethabhai and Natubhai Jethabhai had, on 29th March, 1978, given power-of-attorney to the appellant. After initiation of acquisition proceedings the said Babarbhai Jethabhai and Natubhai Jethabhai gave irrevocable power-of-attorney to the appellant on 12th February, 1981 for a consideration of Rs. 4,06,000/-. The appellant, thus, represented the owners Babarbhai Jethabhai and Natubhai Jethabhai in the land acquisition proceedings as their constituted attorney. Under the award made by the Land Acquisition Officer the appellant had received compensation in the sum of Rs. 9,22,317.48 paise for the acquired lands. He claimed a further compensation of Rs. 31,20,967.52 paise before the Reference Court.
4. The Land Acquisition Officer declared the award on 29th September, 1982. The Land Acquisition Officer considered the location of the acquired lands vis-a-vis the Ahmedabad-Mumbai railway line, the Nadiad-Dakor road and the Nadiad-Anand State Highway. It was noted that a proposed 60 ft. TP wide road passed through the acquired lands. The lands in the area around the acquired lands were developed for residential purpose. The acquired lands, though were agricultural lands, had potential for development for residential purpose. The Land Acquisition Officer also considered the value of the lands sold in the vicinity at the relevant time and the distinguishing factors of individual pieces of land. The Land Acquisition Officer also considered the award made with respect to the lands bearing Survey Nos. 363 and 364 acquired in the year 1979 for the purpose of Nadiad-Petlad road. After considering the materials on record, the Land Acquisition Officer determined the market value of the acquired lands to be Rs. 24 per sq.mtr. Against the claim for the well and other construction, the Land Acquisition Officer awarded a sum of Rs. 15,000/-. The appellant was also awarded statutory increase, the solatium and the interest.
5. Feeling aggrieved by the market value determined by the Land Acquisition Officer, the appellant applied for a reference as envisaged by Section 18 of the Act. Accordingly, the aforesaid Land Acquisition Reference was made to the District Court, Kheda. The Land Acquisition Reference was heard and decided by the learned Asst. Judge. The appellant claimed that the market value of the acquired lands was Rs. 100/- per sq.mtr. The learned Asst. Judge has enhanced the market value of the acquired lands to Rs. 70 per sq.mtr. as on 21st February, 1980. The learned Asst. Judge has though awarded solatium as envisaged by Section 23(2) of the Act, she did not award interest over the amount of solatium. The appellant has also been awarded statutory increase of 12% and the statutory interest at the rate of 9% and 15%.
6. Feeling aggrieved, the Board has preferred the above First Appeal No. 952/98 and the owners of the acquired lands have preferred the above First Appeal No. 1848/98 through their abovenamed constituted attorney.
7. Mr. Bhalja has assailed the judgment of the court below. He has submitted that considering the other sale instances, the price of the acquired lands ought to have been fixed at Rs. 100 per sq.mtr. He has also submitted that the learned Asst. Judge has erred in not awarding interest over the amount of solatium payable to the appellant. He has submitted that the sale instances relied upon by the court below indicated the price at Rs. 100 per sq.mtr. However, the same has been reduced to Rs. 70 per sq.mtr. for the only reason that the acquired lands were some 300 feet away from the Nadiad-Anand Highway. He has also assailed the direction that the appellant shall not be entitled to interest over the amount of solatium. In support of his arguments Mr. Bhalja has relied upon the judgment of the Hon'ble Supreme Court in the matter of Sunder v. Union of India : AIR2001SC3516 ; and of Thakarsibhai Devjibhai and Ors. v. Executive Engineer, Gujarat and Anr. : AIR2001SC2424 .
8. Mr. Mehta has contested the Appeal preferred by the land owners and has also assailed the price of Rs. 70 per sq.mtr. determined by the learned Asst. Judge. He has submitted that the sale instances relied upon before the court below were in respect of small pieces of non-agricultural land with a frontage on the highway, whereas the lands acquired in the present case made a large compact piece of agricultural undeveloped land. In the submission of Mr. Mehta, the learned Asst. Judge ought to have allowed 30% deduction as development cost while determining market value of the lands acquired. He, however, concedes that the appellant is entitled to interest at the statutory rate over the amount of solatium also. In support of his submissions, Mr. Mehta has relied upon the judgments of the Hon'ble Supreme Court in the matters of Ahad Brothers v. State of M.P. and Anr. : AIR2005SC355 ; and of Viluben Jhalejar Contractor (D) by LRs. v. State of Gujarat : AIR2005SC2214 .
9. In the matter of Sunder (supra), the Hon'ble Supreme Court has held that the solatium is the amount awarded Sin consideration of the compulsory nature of the acquisition. The amount of solatium shall also carry interest as stipulated in the Act.
10. In the matter of Thakarsibhai Devjibhai and others (supra) the Hon'ble Supreme Court has considered the factors which are relevant for the purpose of determination of the market value. The Hon'ble Court has held that where holding of each landholder in the acquired area is small, there is no justification for clubbing together the individual holdings, treating them as a large area, differentiating them from similar land thereby and then applying a lower market value to such holdings. It has also been held that the distance between two lands would not by itself lead to a change in their respective market value. However, other distances, such as distance between acquired land and the nearest town providing educational, business, industrial and institutional facilities, could be relevant when deciding market value.
11. In the matter of M/s. Ahad Brothers (supra) the Hon'ble Supreme Court has held that the reference Court as well as the High Court were right in holding that, the land acquired, though was an agricultural land, was not being used as agricultural land and it had potential for purposes of creating building sites. It, however, held that, the courts below committed an error in not giving any deduction towards developmental charges.... It would be just and appropriate to deduct 30% towards developmental charges out of the amount of compensation payable to the appellant @ Rs. 2 per sq.ft. In the matter of Viluben Jhalejar Contractor (supra) the Hon'ble Supreme Court has considered the factors which shall affect the price of the land viz. size, proximity to a road, frontage on a road, distance from developed area, regular shape, natural contours, etc.
8th February, 2006
12. We have perused the judgment and the record. The above-referred Babarbhai Jethabhai, Natubhai Jethabhai and their sisters Bai Dhuli and Bai Ichha had, on 29th March, 1978, given a power-of-attorney to the appellant in connection with the acquisition proceedings of the acquired lands. No reference to the alleged banakhat of 15th July, 1997 had been made in the said power-of-attorney. One another power-of-attorney in respect of the acquisition proceedings of the acquired lands was given to the appellant on 12th February, 1981. In the said power-of-attorney also no reference had been made with respect to the alleged banakhat or alleged payment made to the land-owners. It appears that a further power-of-attorney was given to the appellant on 22nd August, 1991 with respect to the reference and further litigation in connection with the aforesaid land acquisition proceedings. For the first time in the said power-of-attorney a reference has been made to the banakhat dated 15th June, 1977 and payment of a sum of Rs. 20,000/- made to the aforesaid Babarbhai Jethabhai and Natubhai Jethabhai. It was further stated that the owners had sold the land to the appellant on 12th February, 1981. Nevertheless, in view of Section 43 of the Tenancy Act, no mutation was made in favour of the appellant. It shall not be out of place to mention here that no sale deed was ever executed in favour of the appellant. On perusal of the above referred documents and the recitals made therein, to us, it appears that on 12th February, 1981 the owners of the acquired lands transferred the acquired lands in favour of the appellant by giving him an irrevocable power-of-attorney for consideration. Thus, the power-of-attorney was given to the appellant to camouflage the transfer of the property in the acquired lands in contravention of the Transfer of Property Act, Bombay Stamp Act, Registration Act, and also the Tenancy Act. [There cannot be a valid transfer of property by giving a power-of-attorney]. As stated in the aforesaid power-of-attorney dated 22nd August, 1991, the Board had not acquired the entire land Survey Nos. 173 and 174/1. Some 1900 sq.mtrs of land remained unacquired. The possession of the said land was restored to the owners on 6th February, 1981. By the said power-of-attorney, the appellant was authorized to convert the said 1900 sq.mtrs. of land as an old tenure land to get non-agricultural permission; and to develop the said piece of land.
13. It is evident that the acquired lands were situated within the urban agglomeration of the town of Nadiad and came within the residential zone under the Town Planning Scheme. The lands surrounding the acquired lands were fast developing as residential sites. A proposed 60' wide T.P. Road passed through the acquired lands and severed the same into two parts. Several sale instances were relied upon by either party. Amongst the said sale instances, the learned Asst. Judge has selected one particular sale with respect to the land Survey No. 160 sold in the year 1972 at a price of Rs. 58 per sq.mtr. Considering the said sale price as a standard and the peculiarities attached to the land Survey No. 160, and the annual 10% price appreciation, the learned Asst. Judge has fixed the price of the acquired lands at Rs. 70 per sq.mtr. as on 21st February, 1980.
14. The learned Asst. Judge has not assigned any reason why the particular land Survey No. 160 sold as far back as in the year 1972 was selected to arrive at the market value of the acquired lands or why the other sale instances had not been considered by the learned Judge. We find that, as recorded hereinabove, several sale instances were present before the Land Acquisition Officer and before the court below. The land Survey No. 160 was a small piece of non-agricultural land having frontage on the Nadiad-Anand State Highway. In presence of several sale instances which were before the court, which were more within the comparable range, we are of the opinion that, the learned Asst. Judge has erred in relying upon one particular sale instance of land Survey No. 160. The Land Acquisition Officer had considered some 78 sale instances which were on record. They were sales made during the period from the year 1975 to 1980 i.e. nearer to the relevant time, where the price ranged from Rs. 5 to Rs. 396 per sq.mtr. No explanation for the extremely high price or the extremely low price has come on record. It should, however, be noted that those sales were in respect of small plots of non-agricultural lands. Some of them had the frontage either on the state highway or on one or the other major road while the acquired lands are situated some 200 mtrs. away from Nadiad-Dakor road. It is also away from the Nadiad-Anand State Highway. Considering the location of the acquired lands, it appears that the average price prevalent in the said area during the year 1979 was Rs. 40 per sq.mtr. i.e. for small plots admeasuring few hundred sq.mtrs of non-agricultural lands. The acquired lands made one large compact piece of agricultural, undeveloped land situated away from the highway and the major roads. In our view, the learned Assistant Judge has failed to consider these vital diminutive peculiarities of the acquired lands. She has also failed to make deduction towards development charges. The learned Assistant Judge has also overlooked the fact that the acquired lands were covered under the Town Planning Scheme and a proposed T.P. Road cut through the acquired lands.
15. In view of the above discussion, we are of the opinion that the learned Asst. Judge has grossly erred in fixing the price of the acquired lands at Rs. 70 per sq.mtr. Compared to the available sale instances, the price of Rs. 24 per sq.mtr. fixed by the Land Acquisition Officer was reasonable and adequate. The said price did not require to be enhanced further.
16. For the aforesaid reasons the judgment and award dated 3rd December, 1997 passed by the learned Asst. Judge in Land Acquisition Case No. 140/88 is quashed and set aside. The award of the Land Acquisition Officer made on 29th September, 1982 is restored. The First Appeal No. 952/98 is accordingly allowed with cost. The First Appeal No. 1848/98 is dismissed with cost.