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CASE NO.: Appeal (civil)  173 of 2004

PETITIONER: G.M., O.N.G.C. Ltd.                                              

RESPONDENT: Sendhabhai Vastram Patel & Ors.                          

DATE OF JUDGMENT: 08/08/2005

BENCH: Ashok Bhan & S.B. Sinha

JUDGMENT: J U D G M E N T with C.A. Nos. 174-181, 1986 - 2012,  2144-2146 of 2004 and 687-689 of 2005  

S.B. SINHA, J :

       These appeals involving common questions of law and fact were  taken up for hearing together and are being disposed of by this common  judgment.

       The representative fact of the matter, however, is being noticed from  Civil Appeal No. 173 of 2004.

       The lands situated inter alia in villages Santhal, Memadpur, Saduthla  and Balol were acquired by the State of Gujarat for the purpose of use  thereof by the Appellant.

       A notification under Section 4 of the Land Acquisition Act (for short  "the Act") was issued on 31.7.1986.  In terms of Section 6 of the Act, the  declaration was issued on 29.12.1987.  Upon service of notice upon the  claimants, the Land Acquisition Collector made an award in terms of  Section 11 of the Act.  In doing so, several deeds of sale executed between  1981 and 1982 in respect of lands adjoining some of the villages were taken  into consideration and market value of the land was determined at the rate of  Rs. 1.55 per sq. m.  The claimants \026 Respondents did not accept the said  award and prayed for a reference to the Civil Court.  Such a reference having  been made the Reference Court purported to be relying on or on the basis of  judgments dated 30th October, 1996 and 10th November, 1996 passed by 4th  Extra Assistant Judge  and 2nd Extra Assistant Judge, Mahesana respectively  in L.A. R. Case No. 1349/92 and 1314/92 passed an award computing the  amount of compensation at the rate of Rs. 10/- per sq. m.

       The Appellant herein was not impleaded as a party in the Reference  Court.  It had, thus, no opportunity also to adduce any evidence either before  the Land Acquisition Collector or before the Reference Court.  It preferred  appeals before the High Court being aggrieved by and dissatisfied with the  said judgment and award passed by the Reference Court.   

       A contention raised by the Appellant before the High Court inter alia  was that the Reference Judge acted illegally and without jurisdiction in  passing the said judgment solely on the basis of the deposition of one  Sendhabhai Vastaram Patel who alleged that the agricultural lands which he  and others had been cultivating were of high fertility and three crops in a  year were grown therein.  The witness further alleged that the village was  well-developed.  He further contended that the lands of one Govindhbhai  Ambaram was acquired for the Appellant wherein compensation at the rate  of Rs. 10/- per sq. m. was awarded.  It was argued that the Reference Court  was bound to consider the deeds of sale relied upon by the Land Acquisition

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Collector in his Award.

       A Division Bench of the Gujarat High Court rejected the said  contentions stating that the Reference Court had not committed any error of  law in taking into consideration the evidence adduced by the said witness.  It  was held:

"It appears that after the evidence, another  judgment was pointed to the Reference Court for  which there is a reference in the impugned  judgment in para 15.  The lands covered under that  reference cases were situated in the sim of village  Santhal and Kasalpura and the Reference Court  awarded Rs. 10/- per sq. mtrs.  In the instant case,  the lands are situated at village Santhal.  In view of  this evidence, we find no substance in the appeals  and appeals are dismissed."

       Aggrieved, the Appellants are before us.

       Mr. Ashwani Kumar, learned senior counsel appearing on behalf of  the Appellant inter alia would contend that the High Court committed a  serious error in passing the impugned judgment insofar as it failed to take  into consideration that the Reference Court committed a mistake in relying  on the sole testimony of a witness and ignoring the deeds of sale which were  produced before the Land Acquisition Collector.  It was pointed out that the  appeals were filed against Award Nos. 2571 of 1993 and 2573 of 1993 and  in that view of the matter, the Reference Court could not have acted only on  the basis thereof.

       The Appellant was a person aggrieved and the appeal under Section  54 of the Act was maintainable at its instance.  In the said appeal, the High  Court was bound to consider both factual and legal aspects involved therein  and not only an error of law.

       While determining the amount of compensation payable in respect of  the lands acquired by the State, indisputably, the market value therefor has  to be ascertained.  Although, there exist different modes for arriving at  market value for the land acquired; the best method, however, as is well- known would be the amount which a willing purchaser of the land would  pay to the owner of the land as may be evidenced by deeds of sale.  In  absence of any direct evidence on the said point, the court may take recourse  to other methods; viz. judgments and awards passed in respect of  acquisitions of lands made in the same village and / or neighbouring  villages.  Such a judgment and award in absence of any other evidence like  deed of sale, report of expert and other relevant evidence, however, would  have only evidentiary value.   

       The Reference Court, it is trite, has to apply the comparable sales  method as also the situation of the land which is to be appreciated upon  considering the question as to whether acquired land is similar to any land  sold in the vicinity.

       In Shaji Kuriakose and Another Vs. Indian Oil Corpn. Ltd. and Others  [(2001) 7 SCC 650], this court observed:

"3. It is no doubt true that courts adopt comparable  sales method of valuation of land while fixing the  market value of the acquired land. While fixing the  market value of the acquired land, comparable  sales method of valuation is preferred than other  methods of valuation of land such as capitalisation  of net income method or expert opinion method.  Comparable sales method of valuation is preferred

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because it furnishes the evidence for determination  of the market value of the acquired land at which a  willing purchaser would pay for the acquired land  if it had been sold in the open market at the time of  issue of notification under Section 4 of the Act.  However, comparable sales method of valuation of  land for fixing the market value of the acquired  land is not always conclusive. There are certain  factors which are required to be fulfilled and on  fulfilment of those factors the compensation can be  awarded, according to the value of the land  reflected in the sales. The factors laid down inter  alia are: (1) the sale must be a genuine transaction,  (2) that the sale deed must have been executed at  the time proximate to the date of issue of  notification under Section 4 of the Act, (3) that the  land covered by the sale must be in the vicinity of  the acquired land, (4) that the land covered by the  sales must be similar to the acquired land, and (5)  that the size of plot of the land covered by the sales  be comparable to the land acquired. If all these  factors are satisfied, then there is no reason why  the sale value of the land covered by the sales be  not given for the acquired land. However, if there  is a dissimilarity in regard to locality, shape, site or  nature of land between land covered by sales and  land acquired, it is open to the court to  proportionately reduce the compensation for  acquired land than what is reflected in the sales  depending upon the disadvantages attached with  the acquired land\005."

[See also P. Ram Reddy and Others Vs. Land Acquisition Officer,  Hyderabad Urban Development Authority, Hyderabad and Others, (1995) 2  SCC 305 and Panna Lal Ghosh and Others vs. Land Acquisition Collector  and Others \026 (2004) 1 SCC 467].

       The Reference Court, in our opinion, committed a serious error in  passing the judgment solely relying on or on the basis of the testimony of a  witness ignoring the deeds of sale which were produced before the Land  Acquisition Collector.  If the Reference Court intended to differ with the  opinion of the Land Acquisition Collector, it was bound to assign sufficient  and cogent reasons therefor.  From a bare perusal of the judgment and award  passed by the Reference Judge, it is evident that he had relied upon the  purported award made in L.A. R. Case No. 1349/92 and 1314/92.  It is true  that before the Reference Court, the learned Additional Public Prosecutor  made a statement that the said judgments have attained finality and no  appeal had been preferred thereagainst and as such the same could be taken  as the good guidance for the purpose of determining the actual value of the  acquired lands; but as has been noticed hereinbefore, the said statement had  wrongly been made as appeals had been preferred thereagainst.  The High  Court, in our opinion, thus, did not pose unto itself a correct question so as  to arrive at a correct conclusion on fact and, thus, misdirected itself in law.   In determining the amount of compensation, the Reference Court as also the  High Court was bound to take into consideration the well-settled principles  of law and the factors enumerated in Section 23 of the Act.

       Instances of sale in respect of the similar land situated in the same  village and / or neighbouring villages should have been taken as guiding  factors by the Reference Judge as also by the High Court.  In absence of any  better evidence, the Reference Judge as also the High Court could have  made addition in the sale prices for the land as evidenced by the said deeds  of sale.

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       In Viluben Jhalejar Contractor (Dead) By Lrs. vs. State of Gujarat  [(2005) 4 SCC 789], this Court held :                  "18. One of the principles for determination of the  amount of compensation for acquisition of land would be  the willingness of an informed buyer to offer the price  therefor. It is beyond any cavil that the price of the land  which a willing and informed buyer would offer would  be different in the cases where the owner is in possession  and enjoyment of the property and in the cases where he  is not.  

19. Market value is ordinarily the price the property may  fetch in the open market if sold by a willing seller  unaffected by the special needs of a particular purchase.  Where definite material is not forthcoming either in the  shape of sales of similar lands in the neighbourhood at or  about the date of notification under Section 4(1) or  otherwise, other sale instances as well as other evidences  have to be considered.  

20. The amount of compensation cannot be ascertained  with mathematical accuracy. A comparable instance has  to be identified having regard to the proximity from time  angle as well as proximity from situation angle. For  determining the market value of the land under  acquisition, suitable adjustment has to be made having  regard to various positive and negative factors vis-‘-vis  the land under acquisition by placing the two in  juxtaposition. The positive and negative factors are as  under:

Positive factors                        Negative factors (i) smallness of size   (i) largeness of area

(ii) proximity to a road        (ii) situation in the interior at a  distance from the road

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

(iv) nearness to developed area (iv) lower level requiring  the depressed portion to  be filled up

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

(vi) level vis-‘-vis land under acquisition     (vi) some  special disadvantageous factors which would deter a  purchaser

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

21. Whereas a smaller plot may be within the reach of  many, a large block of land will have to be developed  preparing a layout plan, carving out roads, leaving open  spaces, plotting out smaller plots, waiting for purchasers  and the hazards of an entrepreneur. Such development  charges may range between 20% and 50% of the total  price."

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       It was further observed :  

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

       Furthermore, the High Court was not correct in dismissing the first  appeal preferred by the Appellants herein in such a slip shod manner.  We  are, therefore, not in agreement with the reasonings of the High Court.

       Despite our findings aforementioned, we are of the opinion that these  are not fit cases calling for interference in exercise of our discretionary  jurisdiction under Article 136 of the Constitution of India.

       The lands acquired in District Mehsana in different civil appeals is as  under: S.No. Civil Appeal No. Area in sq. mtr. 1. 2144-2146 of 2003  7895 in village Santhal 2. 173-175 of 2004 7874 in village Santhal 3. 176-180 of 2004 10404 in village Memadpur 4. 687-689 of 2005 8267 in village Saduthla 5. 1986-2012 of 2004 81281 in village Balol

       Most of the Appellants are not represented before us evidently  because the amount of compensation granted in their favour is not sufficient  for them to contest these cases before us.  Only in one of the cases, Mr.  Aniruddha P. Mayee, has appeared to represent the Respondents.  Even in  that case the enhanced amount of compensation is about Rs. 15000/-.   

       The financial implication of these matters involves only a few  thousand rupees in each case.  In these cases, the Appellants have already  deposited 50% of the amount awarded by the High Court and presumably,  the Respondents have already withdrawn that amount.  Even if we had set  aside the impugned judgment and remit the matter back to the High Court,  the Appellants as also the Respondents would have to spend a huge amount  on litigation.   

       Even otherwise, we might have directed that the amount withdrawn  by the Respondents may not be refunded to the Appellants.  Even from that  angle, the amount involved in these proceedings is not such which would  warrant this Court to exercise its discretionary jurisdiction.

       It is now well-settled that the High Courts and the Supreme Court  while exercising their equity jurisdiction under Articles 226 and 32 of the  Constitution as also Article 136 thereof may not exercise the same in  appropriate cases.  While exercising such jurisdiction, the superior courts in  India even may not strike down a wrong order only because it would be  lawful to do so.  A discretionary relief may be refused to be extended to the  Appellant in a given case although the Court may find the same to be

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justified in law.  [See S.D.S. Shipping (P) Ltd. Vs. Jay Container Services  Co. (P) Ltd. and Others, (2003) 9 SCC 439]

       A similar view has been taken by this Court in a large number of  decisions including High Court of Judicature at Bombay through Registrar  and Another Vs. Brij Mohan Gupta (Dead) through LRs. and Another  [(2003) 2 SCC 390], N.K. Prasada Vs. Government of India and Others  [(2004) 6 SCC 299, para 26], Inder Parkash Gupta Vs. State of J&K and  Others [(2004) 6 SCC 786, para 42] and Board of Control For Cricket in  India and Another Vs. Netaji Cricket Club and Others [(2005) 4 SCC 741,  para 102].

       Furthermore, this Court, with a view to do complete justice to the  parties, would be entitled to pass any appropriate order in terms of Article  142 of the Constitution of India by referring to exercise its jurisdiction in a  given case in equity or by implementing the doctrine of social justice.

       For the reasons aforementioned, these appeals are dismissed with  aforementioned observations.  There shall, however, be no order as to costs.