STATE OF GUJARAT Vs. GOVIND MAMAIYA

JUDGEMENT

(1.) Heard learned counsel for the parties. The matters came up before us today. Civil Applications Nos. 4276/98 to 4284/98 are on the Board, while the main First Appeals Nos. 5156/98 to 5164/98 are on the board for final hearing as a group matter at Item No. 28 of the Board of the First Appeals. The learned counsel for both the sides have submitted that instead of hearing and deciding the Civil Applications, main First Appeals itself may be heard and decided. Accordingly, appeals were taken up for final hearing along with the cross objections on request of both the sides. Since the Appeals are directed against the common judgment and order and Cross Objections therein, involve common questions, all these Appeals and Cross Objections are decided by this common judgment.

(2.) The dispute involved is about the amount of compensation in respect of the land and the trees standing thereon etc. acquired under the Land Acquisition Act pertaining to the village Mota Dadva, Taluka-Gondal, District-Rajkot. The land was sought to be acquired for Ishvaria Irrigation Scheme. Notice under Sec. 4 of the Act was issued on 13th October, 1983 and thereafter the notice under Sec. 6 of the Act was issued on 30th May, 1985. The Land Acquisition Officer passed an Award on 21st May 1986 in Land Acquisition case No. 109/83. Against this Award passed under Sec. 6 of the Act. Land Acquisition References were made and thus References Nos. 77/88 to 85/88 were decided on 7th October, 1997 by a common judgment and order passed by the learned Assistant Judge, Rajkot at Gondal. Against this common judgment and order dated 7th October, 1997 whereby 9 Land References, as above, have been decided, the State of Gujarat has preferred these 9 First Appeals and in each of these appeals, the claimants have filed their cross-objections numbered as above. The Land Acquisition Officer had determined the market value of the land, at the relevant time, at the rate of Rs. 110/- per Are and at Rs. 3-25 ps. instead of Rs. 2-50. The learned Judge on the basis of the material on the record, came to the conclusion that at least Rs. 150/- per Are compensation should have been awarded to the claimants. Accordingly, it was ordered that the claimants were entitled to get Rs. 40/- per Are as additional compensation for the acquired land. The learned Judge has considered all the relevant aspects including the submissions that in certain other Land References with reference to the land adjoining to the land in question in the same village, the 2nd Extra Assistant Judge, Gondal, awarded Rs. 150/- per Are to the claimants, and in some other Land References, a sum of Rs. 90/- per Are had been awarded and the factual position about the land in question being the adjoining land in the same village is not in dispute. So. far as the assessment of the market value of the land in question at the rate of Rs. 150/- per Are is concerned, there is no serious dispute, but the controversy is raised with regard to the award of compensation pertaining to the eucalyptus trees and that too particularly in Land References Nos. 77/88 and 78/88, wherein the compensation of Rs. 23,75,550/- and Rs. 23,300/- have been awarded for eucalyptus trees. The learned Government Pleader submitted that the claimants had examined only one witness in their favour while on behalf of the State Government, 5 witnesses were examined. He has taken us through the entire evidence and certain other documents i.e. Rojkam etc. In Reference Case No. 77/88, one Govindbhai Mamaiyabhai had been examined as witness no. 1, who has deposed that there were about 20,000 eucalyptus trees and these trees were about 6 years old with the height of 78 Mts. with the thickness of 1.5 Ft. to 2.00 Ft. He also deposed that the trees were useful and each and every tree could have fetched atleast Rs. 200/-. He also made reference to the Panchayat Patrak Ex-37 prepared by the District Panchayat on 11th March, 1984 and also made reference to the booklets showing the price for the eucalyptus trees. He has also deposed that there were other plants of lemon and various kinds of other fruits and for each such tree, he has stated that the price should have been atleast Rs. 200/-. In cross-examination, he has admitted that he had claimed compensation for 18,250 trees only in his application.

(3.) On behalf of the State one Kanaiyalal Maganlal who was a Surveyor was examined as Witness No. 1. He has stated that at the time when he went to survey the land in question, the land holders were also present since they were intimated. According to this witness, the trees were in a very bad condition and same could not be used even as fuel. He has stated in his cross-examination that they were of no use. He has stated, after looking into the record that there were about 25,000 eucalyptus trees; that he had no basis for saying that at the time of the survey, the applicants were present. One Bhavanbhai Thakarsibhai, District Agricultural Officer was also examined as Witness No. 2. He has deposed that the trees of Subaval and eucalyptus look identical and are of the same class, but the growth may not be similar. The growth of the trees depend upon the type of land, fertiliser and water. The eucalyptus trees in Saurashtra are generally of poor quality. The age of eucalyptus trees may be about 50 years and that of Subaval to be of 40 years. He has referred to Exs. 82 and 40 for the purpose of deciding the price of trees. He has deposed that he had not visited the spot, neither he had seen the trees in question. He has also stated that the rates of the trees of eucalyptus and Subaval which have been fixed by the Government are same all over the State The leaves of the eucalyptus may be useful in preparing medicines. The Deputy Executive Engineer Nanubhai Parbatbhai has been examined as Witness No. 3. He has deposed that when he had gone for Rojkam, trees were in rotten condition and only wet trees were there. The trees were not in good condition. In cross-examination he has stated that on 18th July, 1983, there were heavy rains and eucalyptus trees had submerged in water and the District Panchayat had prepared the Rojkam with regard to the loss sustained on account of the heavy rains and submerging of the trees. He has referred to Rojkam Ex. 37. He has admitted that he has no experience with regard to the cultivation of the trees of eucalyptus. The next witness is yet another Deputy Executive Engineer Devendra Trambaklal Gorasia. He has referred to Rojkam Ex. 86, in which the condition of trees has been mentioned. He has also deposed that when he had gone for Rojkam after three years, the trees were submerged in water and excess water was there because of dam. The fifth witness is Jadavbhai Bhagvanbhai Vora who was the concerned Deputy Collector at Rajkot during 1984 to 1986. He has stated that at that time on behalf of the Khatedars no objection was taken with regard to the compensation in respect of the land and trees etc. He has also stated that the construction which has been raised on the land in question and the wells etc. had been valued by the Deputy Executive Engineer and the costs of the trees of eucalyptus and Subaval and other trees were worked outon the basis of the Land Acquisition Manual. After taking into consideration the age of the trees, the diameter or circumference of the trees, the Award dated 21st May, 1986 was published. He has justified the amount of compensation and submitted that at the time of acquisition on objection was taken by the applicant regarding the price of the trees. He has admitted in cross-examination that the trees of eucalyptus which he had seen were two to five years old. He has agreed to the suggestion that the entire land was mentioned in the Notification under Sec. 4, dated 13th October, 1983. Agreement to sale regarding Survey No. 275 is dated 6th April 1981. He has also admitted his signature below Ex. 86. After considering the evidence as aforesaid, the learned Extra Assistant Judge, Rajkot at Gondal had passed the order dated 7th October, 1997.