2410FA1183.10-Judgment 1/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 1183 OF 2010
APPELLANT :- Maharashtra Industrial Development
Ori.Deft.No.3 (On RA) Corporation having its office at Marol
Industrial Estate, Andheri East, Mumbai and
havnig its Regional Office at By Pass Road,
Amravati, through its Chief Executive
Officer.
...VERSUS...
RESPONDENTS :- 1) ig Jammanbai w/o Sk. Bahira, Since dead
Ori.Claimant No.1 through her legal representatives, 2,5,6,8 & 9.
(On RA)
2) Sk. Lalu Sk. Bahira, aged about 65 years,
occupation agriculture.
3) Sk. Bismilla Sk. Bahira Since dead through
legal representatives
i. Smt.Nazambee wd/o Sk. Bismilla, aged
about 57 years, occupation Household,
ii. Smt. Jaynabee wd/o Sk. Yunus, aged about
37 years, occupation Household, R/o
Ambejogai, Dist. Parbhani.
iii. Sk. Ibrahim s/o Sk. Bismilla, aged about 35
years, occupation Labourer,
iv. Sk. Shabbir s/o Sk. Bismilla, aged about 33
years, occupation Labourer,
v. Sk.Foriz s/o Sk. Bismilla, aged about 31
years, occupation Labourer,
vi. Sk. Shakil s/o Sk. Bismilla, aged about 30
years, occupation Labourer,
vii. Sk.Afroz s/o Sk. Bismilla, aged about 28
years, occupation Labourer,
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viii. Sk.Ishan s/o Sk. Bismilla, aged about 26
years, occupation Labourer,
4) Sk. Salim Sk. Bahira since dead through his
legal representatives,
a. Smt. Bibibai wd/o Sk. Salim, aged about 53
years, occupation Household,
b. Sk.Mehaboob s/o Sk. Salim, aged about
Adult, occupation Labourer,
c. Sk. Javed s/o Sk. Salim, aged about 30
ig years, occupation Labourer,
d. Sk. Akbar s/o Sk. Salim, aged about 25
years, occupation Labourer,
e. Sk.Ansaer s/o Sk. Salim, aged about 25
years, occupation Labourer,
5. Sk. Anis s/o Sk. Bahira, aged about 48 years,
occupation Agricjlturist,
6. Sk. Mohmmad s/o Sk. Bahira, ageda bout 50
years, occupation 50 years, occupation
Agriculture,
7. Sk.Ramzan Sk. Bahira, since dead through
his legal representatives,
i. Smt.Chhotibai wd/o Sk. Ramzan, aged about
57 years, occupation Household,
ii. Sk.Salman s/o Sk. Ramzan, aged about 37
years, occupation Labourer,
iii. Sk. Ismail s/o Sk. Ramzan, aged about 57
years, occupation Labourer,
iv. Smt.Jubedabee Sk. Subhan, aged about 33 yearrs,
occu. Household, R/o Chikhali, District
Buldhana.
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v. Sk.Husain s/o Sk. Ramzan, aged about 31
years, occupation Labourer,
vi. Smt. Saddobee w/o Sk. Chand, aged about
30 years, occupation Household, resident of
Shirpur, Taluka Malegaon, Dist. Washim.
8. Smt. Maidbee w/o Sk.Biram, aged about 60
years, occupation Household,
9. Smt.Chandbi w/o Sk. Chand, aged about 59
years, occupation Household,
ig All resident of Gawalipura, Akot Road,
Akola.
Ori.Deft.No.1 10. State of Maharashtra, through Collector,
Akola.
Ori.Deft. No.2 11. Collector Akola, District Akola.
Ori.Deft. No.3 12. Sub-Divisional Officer and Land Acquisition
Officer, Akola District Akola.
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Mr.Agnihotri, counsel h/f Mr. M.M.Agnihotri, counsel for the appellant.
None for the respondent Nos.1 to 9.
Mr. A.A.Madiwale, Asstt. Govt.Pleader for the respondent Nos.10 to 12.
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CORAM : SMT. VASANTI A NAIK &
KUM. INDIRA JAIN, JJ.
DATED : 24.10.2016 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this first appeal, the appellant-Maharashtra Industrial Development Corporation has challenged the judgment of the reference court dated 11/09/2009, partly allowing the reference application filed ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 4/14 by the respondents-claimants and directing the appellant-corporation to pay enhanced compensation at the rate of Rs.1,000/- per are (Rs.1,00,000/- per hectare) for their acquired land after deducting the amount that was already paid to the claimants towards compensation in terms of the award passed by the Special Land Acquisition Officer.
2. Few facts giving rise to the appeal are stated thus :-
The respondent Nos.1 to 9 were the joint owners of field survey Nos.11, 138 and 12, admeasuring 2 hectares 68 are, 2 hectares 57 are and 4 hectares 74 are respectively. The appellant-corporation desired to acquire the said land and, therefore, the notification under section 32(2) of the Maharashtra Industrial Development Act, 1961 was published in the government gazette on 13/08/1992. The notification under section 32(1) of the Act was published on 01/06/1995. The respondents-claimants had filed their objection before the Land Acquisition Officer and had claimed compensation at the rate of Rs.50/-
per sq.ft. The Land Acquisition Officer passed an award on 30/03/1997 and held that the respondent-claimants were entitled to compensation at the rate of Rs.24,000/- per hectare for the land in survey Nos.11 and 138 and Rs.25,000/- per hectare for the land in survey No.12.
Compensation was also awarded for the mango, berry, neem trees that were standing on the acquired land. Being aggrieved by the grant of meager compensation, the respondents-claimants filed a reference that was registered as L.A.C. No.350 of 1997. By the said reference, the respondents-claimants sought compensation for their land at the rate of ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 5/14 Rs.50/- per sq.ft. The respondents-claimants also sought compensation for the wells, the servant quarters and cattle sheds and enhanced compensation for the mango, berry and neem trees.
3. The appellant-Corporation filed the written statement and denied the claim of the respondents-claimants. It was denied that the Land Acquisition Officer has granted meager compensation and that it was liable to be enhanced. It was denied that the acquired land was at a stones throw distance from village Yeota and village Kumbhari. It was denied that the Land Acquisition Officer failed to consider the rising prices of the agricultural lands after 1991. It was denied that the land had non agricultural potential and that the market value of the land was Rs.50/- per sq.ft. The appellant-corporation denied that the claimants were entitled to the compensation for the bands, the wells and the other construction on the land. The appellant-corporation sought for the dismissal of the reference.
4. After the written statement was filed, the reference court framed the issues and the claimants tendered the oral evidence of Manik Murumkar and Sheikh Mohammad, the power of attorney holder for the claimants. Certain sale deeds were also placed on record to substantiate the claim. The reference court, on an appreciation of the evidence on record, by the judgment dated 11/09/2009 partly allowed the reference filed by the respondents-claimants and directed the appellant-corporation to pay compensation to the claimants for their ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 6/14 acquired land at the rate of Rs.1,000/- per are, that is Rs.1,00,000/- per hectare. The reference court rejected the claim of the respondents-
claimants for additional compensation for the trees and compensation for the wells and bands. The appellant-corporation is aggrieved by the judgment of the reference court as according to the corporation, the reference court has granted the compensation to the respondents-
claimants on a higher side.
5. Shri Agnihotri, the learned counsel for the appellant, has submitted that for determining the market value of the land on the date of the notification under section 32(2) of the Act dated 13/08/1992, the reference court has relied on two sale deeds. It is stated that the sale deeds pertain to village Shivani and not to village Yeota, where the acquired lands are situated. It is stated that the reference court was not justified in relying on the sale deed at exhibit-33/3 whereby 5 are of land from village Shivani was sold on 13/08/1992 for a sum of Rs.50,000/-. It is stated that the acquired lands are situated at Yeota and the sale deed at exhibit-33/3 pertains to the sale of land at Shivani and the reference court could not have relied on the same for enhancing the compensation. It is stated that since the sale deed on which the reference court has relied for enhancing the compensation is not a sale deed in respect of land from the same village in which the acquired lands of the respondents-claimants are located, the judgment of the reference court is liable to be set aside.
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6. Shri Madiwale, the learned Assistant Government Pleader appearing on behalf of respondent Nos.10 to 12, states that the Special Land Acquisition Officer was justified in fixing the compensation of the land at the rate of Rs.24,000/- and Rs.25,000/- per hectare. It is stated that the reference court was not justified in enhancing the compensation. It is stated that in the circumstances of the case, this court may allow the appeal filed by the appellant-corporation as it appears that the grant of compensation at the rate of Rs.1,00,000/- per hectare is on a little higher side.
7. On hearing the learned counsel for the parties and on a perusal of the record and proceedings, it appears that the following points arise for determination in this first appeal :-
(I) Whether the reference court was justified in granting compensation at the rate of Rs.1,00,000/- per hectare and/or whether the compensation is liable to be reduced?(II) What order?
8. To answer the aforesaid points, it would be necessary to consider the evidence tendered by the respondents-claimants on record.
Firstly, we would consider the oral evidence of the respondents-
claimants. The respondents-claimants had examined Sheikh Mohammad, their power of attorney holder, on their behalf. Sheikh Mohammad is not only the power of attorney holder for the other ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 8/14 claimants, but is a claimant himself. Sheikh Mohammad stated in his evidence that the compensation awarded by the Special Land Acquisition Officer was on a very lower side. It was stated by Sheikh Mohammad in his examination-in-chief that the acquired land had great non-agricultural potential and the land was situated in the proximity of Municipal Corporation area of Akola City. It was stated that the claimants used to take dry as well as irrigated crops from the land. It was stated that wells were situated in the acquired lands and there was enough water in the wells for cultivation. It is stated that the lands were surrounded by the sugarcane zone. Sheikh Mohammad deposed about the two sale deeds that were executed in respect of land in village Shivani. It was stated that as per the lands that were sold by the sale deeds at exhibit-33/2 and 33/3, it could be proved that the market value of the land of the claimants was very high. Sheikh Mohammad mentioned about the sale deeds dated 08/05/1984 and 11/02/1991.
By the first sale deed of the year 1984, 3 acres of land from village Shivani was purchased by Haji Lal for a sum of Rs.4,65,000/-. It was stated that by the second sale deed dated 11/02/1991, 5 are of land was sold at Rs.50,000/-. Sheikh Mohammad relied on these sale deeds and further stated that the lands of claimants were superior than the lands that were sold by the aforesaid sale deeds. Sheikh Mohammad sought compensation for the bands and the wells. Apart from Sheikh Mohammad, the claimants examined Manik Murumkar. Manik Murumkar stated in his evidence that he had purchased 5 are of land from Trimbak Pande for a consideration of Rs.50,000/-. Manik ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 9/14 Murumkar placed a certified copy of the sale deed on record. Manik Murumkar stated that the distance between the land that he had purchased and the land of the respondents-claimants was only 500 meters. It is stated that the market value of the land of the respondents-claimants was more than the land that was purchased by him. In the cross-examination, Manik Murumkar denied the suggestion that he had purchased the land at Shivani at a higher rate and that the distance between the acquired land and the land purchased by him was not as per his statement in his examination-in-chief. There is nothing in the cross-examination of Manik Murumkar to falsify the case in his examination-in-chief.
9. Apart from the oral evidence of Manik Murumkar and Sheikh Mohammad, the respondents-claimants had tendered two sale deeds on record. Both the sale deeds are exhibited and marked as exhibits-33/2 and 33/3. The sale deed at exhibit-33/2 pertains to 3 acres of land from village Shivani that was purchased by Haji Lal for a consideration of Rs.4,65,000/- on 08/05/1984. Exhibit-33/3 is the certified copy of the sale deed by which Manik Murumkar had purchased 5 are of land from village Shivani for a consideration of Rs.50,000/-. The reference court has relied only on exhibit-33/3 to enahance the compensation and has discarded the sale deed at exhibit-
33/2 solely on the ground that the sale deed was executed in the year 1984 and did not have any proximity of time, with the notification issued under section 33(2) of the Act on 13/08/1992. The only reason ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 10/14 for discarding the sale deed at exhibit-33/2 is that it was executed about seven years earlier. We do not find that the reference court was justified in discarding the sale deed at exhibit-33/2, dated 08/05/1984 solely on the ground that it was executed before the issuance of the notification dated 13/08/1992. The sale deeds executed after the issuance of a notification cannot be considered while determining the market value of the land, however, the sale deeds that are executed earlier in point of time could be considered while determining the market value. Market value of the land is that value which a willing purchaser is ready to offer to the willing seller. We have to consider the market value as on 13/08/1992. Since the subsequent sale deeds cannot be considered as they could be fictitiously created just for seeking enhanced compensation, it would always be safer to consider the old sale deeds and then determine the compensation by adding the appreciation value as it is a matter of common knowledge that the prices of the properties would not normally dwindle. It is well settled that old awards and sale deeds in respect of the lands that are situated in the near vicinity of the acquired land could always be considered for determining the compensation by considering the market value of the land as on date of which they are executed and further adding the appreciation value, to the same. Normally, the appreciation is to the extent of 7½% or 10% every year. It was necessary for the reference court to have considered the sale deed at exhibit-33/2 to determine the market value of the land when the claimants had only produced two sale deeds and the appellant-corporation had produced none. It is a ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 11/14 well settled that the market value of the land could be determined either by the income capitalization method or comparable sale instances. There is no evidence for determining the market value of the land on the basis of income capitalization method. Hence, the reference court has rightly applied the other method for determining the market value of the land i.e. on the basis of the comparable sale deeds. We have already recorded herein above that the reference court was not justified in discarding the sale deed at exhibit-33/2 on the ground that it was executed at an earlier point of time. Now it would be necessary to consider whether the sale deeds are the sale deeds of comparable land. The sale deeds at exhibits-33/2 and 33/3 are in respect of the land that is situated at a distance of only 500 meters from the land of the respondents-claimants. It is the evidence of the witnesses examined on behalf of the claimants that the land of the respondents-claimants is superior and also possesses non-agricultural potential. The sale deed at exhibit-33/2 shows that the land admeasuring 3 acres was sold for a consideration of Rs.4,65,000/- on 08/04/1984. If the land that is situated only 500 meters away from the land of the claimants could fetch Rs.4,65,000/- for 3 acres on 08/05/1984, it is difficult to follow as to how similar agricultural land could fetch only a sum of Rs.24,000/-
or Rs.25,000/- per hectare as on 13/08/1992. It would be necessary to hold that 1 acre of land was valued at more than Rs.1,50,000/- as on 08/05/1984. If that be the price of the land that was situated nearly 500 meters away from the land of the respondents-claimants, the respondents were entitled to more compensation than that was ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 12/14 determined by the reference court. Though the claimants had filed a cross-appeal, we have dismissed the same for want of prosecution. We were not inclined to allow the appeal filed by the claimants in the entirety and, therefore, the appeal would have been dismissed to certain extent. Hence, we dismissed the appeal filed by the claimants bearing First Appeal No.534 of 2010 for want of prosecution, as the appeal could not have been partly dismissed in the absence of the appellant in view of the provisions of Order XLI Rule 17 of the Code of Civil Procedure.
10. Be that as it may, from the evidence tendered by the claimants, it is apparent that the market value of the land of the claimants was more than Rs.1,00,000/- per hectare. We find that the reference court has unduly deducted the amount to the extent of 90% towards development as the land was agricultural land. The reference court has made a reference to the sale deed at exhibit-33/3, on which it had relied, for making huge deduction for development, as 5 are of land was sold in village Shivani for Rs.50,000/-. If the land sold by exhibits-33/2 and 33/3 were also agricultural lands, we fail to gauge as to how the reference court could have deducted the amount towards development. The reference court was not justified in making the deduction to the extent of 90% for the reasons stated in para-21 of the judgment of the reference court. In fact, deduction could not have been made by the reference court at all, as the lands sold by exhibits-33/2 and 33/3 were agricultural lands and when the sale deeds of ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 13/14 agricultural lands are considered while determining the market value of the acquired agricultural land, there is no question of making any deductions. It is apparent from the sale deed at exhibit-33/2 that 3 acres of land at village Shivani, that was only 500 meters away from the acquired land, was sold for a consideration of Rs.4,65,000/- on 08/05/1984. As per the law laid down by the Hon'ble Supreme Court, there would be an appreciation in the value of land at 10% per annum for every subsequent year. It would be worthwhile to refer to the judgments of the Hon'ble Supreme Court, reported in AIR 2002 SC 1558 (Special Land Acquistion Officer v. Mohd. Hanif Sahib Bawa Sahib), (2008) 14 SCC 745 (General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel and another) and 2011 (4) Mh.L.J. 179 (State of Maharashtra v. Shantaram Govind Tandel and others) in this regard. If the land situated at a distance of 500 meters from the acquired land could fetch almost Rs.1,50,000/- for 1 acre in May, 1984, it would be necessary to add 10% every year to the said value for about 8 years as the notification under section 33(2) of the Act was issued in this case on 13/08/1992.
If the land was valued in the year 1984 at Rs.1,50,000/- per acre, the same would have been valued at Rs.3,75,000/- per hectare. If we add 10% for the 8 subsequent years, the approximate escalation could be computed at Rs.3,00,000/-. If the amount of escalation is added to the amount of Rs.3,75,000/- that was the market value of 1 hectare of land in May, 1984, the approximate value of 1 hectare of land on the date of the section 33(2) notification, would be nearly Rs.6,75,000/-. Thus, it ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:35:10 ::: 2410FA1183.10-Judgment 14/14 is apparent that the market value of the land of the respondents-
claimants could have been Rs.6,75,000/- per hectare on 13/08/1992, without deduction. Hence, it cannot be said that the grant of compensation at the rate of Rs.1,00,000/- per hectare for the acquired land is on the higher side. Though we find that the sale deed at exhibit-
33/3 could also be relied upon, more weightage needs to be granted to the sale deed at exhibit-33/2 as by the said sale deed a larger tract of land was sold and by the sale deed at exhibit-33/3 a small portion of the land was sold and we are concerned in this case with a large tract of land and not a small plot. In the circumstances of the case, on a reading of the oral and documentary evidence on record, we are firmly of the view that it would not be possible to allow the appeal filed by the appellant-corporation and set aside the order of the reference court on the ground that the compensation awarded by the reference court is on a higher side.
11. For the reasons aforesaid, we dismiss the appeal filed by the appellant-corporation with no order as to costs.
JUDGE JUDGE
KHUNTE
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