0308 FA 1093/2012 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 1093/2012
1] The State of Maharashtra,
Through the Collector, Akola,
represented by Special Land
Acquisition Officer, Akola,
Tq. & District Akola (K.P.M.P.).
2] The Executive Engineer, Akola,
Patbhandhare Vibhag,
(Saravazonik), Akola,
Tq. & District - Akola. APPELLANTS
.....VERSUS.....
Savatram Ramprasad Mills, Akola,
A Unit for National Textile Corporation
(M.N.) Ltd., Subsidiary of National Textile
Corporation, A Government of India
Undertaking through its General
Manager, Wajirchand Mulkraj Kakkar,
Aged about 52 years, Occu: Service,
R/o. Akola, Tq. & District Akola. RESPONDE NT
Shri M.A. Kadu, AGP for appellants.
Shri A.S. Mahadia, counsel for respondent.
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0308 FA 1093/2012 2 Judgment
CORAM : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.
DATE : AUGUST 03, 2017. ORAL JUDGMENT :
This appeal takes an exception to the judgment and award passed by 3rd Joint Civil Judge (Sr.Dn.), Akola in L.A.C. No. 80/1998 on 02/02/2011.
2] Brief facts of the appeal, can be stated as follows:
Respondent is the owner of the plot bearing no. 39, Sheet No.27-A, situated at Akola. Out of this plot, appellant has acquired the area adm. 320 sq.mtrs. for the construction of bridge on river Morna, by virtue of the Notification issued under section 4(1) of the Land Acquisition Act (For short, "Act"). It was published in the local newspaper on 26/06/1997. Thereafter Notification under section 6 of the Act was issued on 18/08/1997. 3] Prior to that, the Collector, Akola had sent a letter to the respondent on 11/12/1996 giving a proposal for the purchase of the said land at the rate of Rs.2,320/- per sq.mtr.. Respondent herein had sent a reply to the said letter on 17/12/1996 showing ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 3 Judgment his readiness to sell the said piece of the land to the Collector at the ready reckoner price of Rs.4,640/- per sq.mtr.. By his letter dt. 01/01/1997, the Collector, Akola accepted the said rate of Rs.4,640/- per sq.mtr.. In response thereto, by the letter dated 04/01/1997, Respondent further informed the Collector that after obtaining the no objection and consent letter from its Head Office, the sale would be executed. In March-1997, on demand of appellant, possession of the said land was delivered by the respondent to the appellant.
4] After the Notification under section 4(1) of the Act was issued on 26/06/1997, respondent brought all these facts to the notice of SLAO, vide his letter dated 31/07/1997. After the Notification under section 6 of the Act was issued on 18/08/1997, respondent again brought these same facts to the knowledge of SLAO by letter dated 09/10/1997. However, the SLAO by his award, granted paltry compensation at the rate of Rs.260/- per sq.mtr.
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0308 FA 1093/2012 4 Judgment 5] Being aggrieved thereby, respondent approached the
Reference Court under section 18 of the Act, contending inter alia that when the offer was received from the Collector himself and that too accepting the rate of Rs.4,640/- per sq.mtr., the SLAO should not have reduced the said amount and granted paltry sum at the rate of Rs.260/- per sq.mtr. It was also contended that the SLAO has not taken into consideration the market value of the land in the vicinity despite the relevant material placed before him. According to respondent, the award was passed by the SLAO merely on surmises and without application of the mind, and therefore interference was warranted in the said award by enhancing the compensation at the rate of Rs.4,640/- per sq.mtr., which rate was accepted by the Collector, Akola also.
6] This petition came to be resisted by the appellant vide its written statement at Exh.16 submitting that correspondence between respondent and the Collector was a matter of record, hence needs no reply. It was submitted that the market value of the acquired land as per the prevailing market rates in the area can be Rs.4,640/- per sq.mtr. It was denied that the land was having ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 5 Judgment potential for residential purpose or it was situated in residential and commercial locality of rich class of persons. It was also denied that the Collector, Akola has accepted the market value of the land at the relevant time at the rate of Rs.4,640/- per sq.mtr.. It was submitted that the SLAO has considered all the relevant factors, including the six sale instances of the land executed within the period of 5 years prior to the Notification issued under section 4 of the Act. He has also considered the potentiality and situation of the land and thereafter arrived at the proper conclusion in respect of the price of the acquired land and has awarded the just and reasonable amount of compensation. Therefore, no interference was warranted therein.
7] On these respective pleadings of the parties, the Reference Court was pleased to frame the necessary issues for its consideration. In support of his case, respondent examined himself and proved on record the various correspondence exchanged between the respondent and the Collector, Akola, accepting the purchase price at the rate of Rs.4,640/- per sq.mtr. He was cross- examined on behalf of the appellant, but appellant chose not to lead ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 6 Judgment any oral or documentary evidence on record.
8] Hence, on appreciation of the entire evidence produced before it, the Reference Court was pleased to hold that if the Collector, Akola has offered the market price at the rate of Rs.4,640/- per sq.mtr. to the acquired piece of land, then that being the price of ready reckoner and that being the offer from the Acquiring Body , the compensation needs to be awarded at the same rate. Accordingly, the Reference Court has enhanced the amount of compensation to Rs.4,640/- per sq.mtr. and further allowed the solatium of 30% with interest of 15 % per annum.
9] This judgment of the reference court is challenged in the present appeal by learned AGP by submitting that the rate of Rs.4,640/- per sq.mtr. was offered by the Collector, Akola, only as a purchase price and it cannot be the rate on which the compensation can be awarded, especially when the amount of compensation is awarded with 30% solatium and 15% per annum of interest thereon. It is urged that if this rate of Rs.4,640/- per sq.mtr. was ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 7 Judgment offered by the Collector, Akola on the basis of the ready reckoner, then the law is fairly well settled that the rates in ready reckoner cannot be the only foundation for fixing the amount of compensation. Hence, according to learned AGP for appellant, the very foundation of the judgment of the Reference Court being not correct, interference is warranted in the impugned judgment and award of the Reference Court, especially having regard to the fact that the amount of compensation is enhanced multi-fold, as a result of further award of 30% solatium and 15% per annum interest, which could never have been the intended price of the acquired land by the Collector, Akola himself.
10] Per contra, learned counsel for the respondent-claimant has supported the impugned judgment by submitting that the rate of Rs.4,640/- per sq.mtr. was offered by the Collector, Akola himself on the basis of the proposal submitted to him by the Acquiring Body i.e. P.W.D. Akola. Now the State Government cannot resile from the said proposal. Moreover, though the respondent had given the consent for the acquisition of the land at that rate and also handed over the possession of the said land, it was not proper on the part of ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 8 Judgment the appellant to initiate the acquisition proceedings. It is submitted that once the appellant has initiated the acquisition proceeding under Land Acquisition Act, 1894, then 30% solatium and 12% per annum interest, which are statutorily provided under the Act, respondent becomes entitled to get the same. Hence, according to him, no interference is warranted in the impugned judgment and award of the Reference Court.
11] On these rival submissions advanced before me by learned AGP and learned counsel for respondent, the only point which arises for my determination, is whether the Reference Court was justified in enhancing the amount of compensation to Rs.4,640/- per sq.mtr., mainly on the count that the Collector has offered to purchase the acquired land at that rate? 12] The factual aspects of this case are not in the realm of dispute and otherwise also they are sufficiently proved on record through the documentary evidence. Even in the written statement filed by the appellant to the Reference Petition, appellant has ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 9 Judgment submitted that the correspondence exchanged between the Collector, Akola and the respondent is a matter of record and hence no reply was necessary to challenge the same. Thus it is a matter of record that the Collector, Akola has by his letter dated 11/12/1996 (A-1) sought the consent of the respondent for selling the acquired land for the purpose of construction of bridge over Morna river. The no objection and consent letter for the same was sought from the respondent on or before 18/12/1996. There is a letter issued by respondent accordingly on 17/12/1996, which is marked as A2, wherein it was stated that the rate of Rs.2,320/- per sq.mtr. which was proposed by the Collector, Akola for purchase of the land was not proper and it was not accepted by the respondent. However, it was submitted that the rate of Rs.4,640/- per sq.mtr., which was given to the land at Ward No.30/2, Sr. No.4 to Sawatram, would be acceptable to respondent and they were waiting for the appropriate response from the Collector. The relevant extract of ready reckoner rates of Nagar Parishad, Akola was also enclosed with the said letter.
13] In response to this letter, the Collector, Akola has sent a
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0308 FA 1093/2012 10 Judgment
reply dated 01/01/1997 marked as (A4), wherein it was categorically stated that on the basis of the proposal submitted by the Executive Engineer, P.W.D. Akola, it was decided to acquire the area of 3015 sq.mtr. and the market price of the said area as per the Government ready reckoner rate, will be at the rate of Rs.4,640/- per sq.mtr. It was further stated that the Collector was accordingly ready to purchase the plot of the respondent, after obtaining no objection and consent letter from the respondent on or before 04/01/1997. The letter dated 04/01/1997 issued by the respondent vide (A5) goes to show that they had sent this proposal of the Collector to their Head Office immediately and informed that on the receipt of the approval from the Head Office, it would be informed to the Collector.
14] It is a matter of record that in pursuance of this negotiation relating to purchase price, the possession of the said plot was handed over by the respondent to the Collector in March 1997. Despite that, the Notification under section 4(1) of the Act came to be issued on 26/06/1997. Hence, on 31/07/1997 vide letter (A6), the respondent brought all these facts to the notice of ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 11 Judgment the SLAO, further in forming that after obtaining sanction from their Head Office, they will be proceeding with the sale of the plot. Thereafter again another letter dated 09/10/1997 was sent (A7) by Respondent to the SLAO, again bringing all these facts to his notice, enclosing therewith the correspondence exchanged and further submitting that they are ready to the suggested rate offered by the Collector of Rs.4,640/- per sq.mtr..
15] It appears that, thereafter also, SLAO proceeded with acquisition proceedings and passed the award granting compensation at the rate of Rs.260 per sq.mtr.. 16] In the backdrop of these admitted facts, one has to appreciate the submission advanced by learned AGP. According to learned AGP, the law is fairly well settled, as laid down in the landmark decision of the Hon'ble Apex Court in the case of Jawajee Nagnatham -Vs- Revenue Divisional Officer, Adilabad, A.P. and others, (1994) 4 Supreme Court Cases 595, categorically holding that, "Basic Valuation Register had no evidentiary value and it had no ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 12 Judgment statutory base, therefore the entries in the Basic Valuation Register cannot form the basis to enhance the market value". It was held that, "Such Basic Valuation Register cannot be the evidence to determine the market value and therefore in determining the market value, the court has to take into account one of the 3 recognized methods to determine the market value and those three methods are (i) opinion of the experts; (ii) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages; and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired".
17] Learned AGP has further relied upon the judgment of the Apex Court in the case of U.P. Jal Nigam, Lucknow -Vs- Kalra Properties (P) Ltd. Lucknow and others, (1996) 3 Supreme Court Cases 124 and also the judgment of the Hon'ble Apex Court in the case of Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun
-Vs- Bipin Kumar and another, (2004) 2 SCC 283 and DDA and others -Vs- Joginder S. Monga and others, (2004) 2 Supreme Court Cases 297, wherein the law laid down in the abovesaid ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 13 Judgment decision of the Jawajee Nagnatham was approved and further confirmed by the Hon'ble Supreme Court and it was held that, "The instructions issued by the Government for determination of market value on the basis of Basic Valuation Register were illegal". 18] Thus, submission of learned AGP is that as the rate quoted by the Collector, Akola was on the basis of the Basic Valuation Register and if that rate is not approved by the Hon'ble Apex Court to form the basis for determining the market value of the acquired land, then the Reference Court has committed an error in accepting the said rate without adhering to any of the three methods for determination of the market value of the acquired land. It is submitted by learned AGP that except the correspondence exchanged between the Collector and the respondent, no other evidence was adduced by the respondent to prove the actual market price of the land, like, the relevant sale instances or evidence to prove their income from acquired land to determine the market value on the basis of capitalization method. Hence, according to him, the judgment of the reference court accepting the market value which was offered by the Collector on the basis of the Basic ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 14 Judgment Valuation Register, needs to be set aside.
19] Per contra, learned counsel for the respondent has relied upon the judgment of this court in the case of Fulchand Biharilal Rawat -Vs- State of Maharashtra and another, 2008 (3) ALL MR 734, wherein on the basis of identical facts, it was held that, "the Acquiring Body cannot resile from the proposal made earlier and the negotiation price which was arrived at". In the facts of the said case also, it was the Acquiring Body which has sent the proposal for acquisition of land and on negotiation, the price was set at Rs.50,000/- per acre. The Government was also moved for making budgetary provision for that. Subsequently however, the Notification u/s.4(1) of the Act was issued and the proceedings for acquisition were initiated under the Act. The LAO after holding inquiry, passed an award and granted compensation at the rate of Rs.30,000/- per hector. The land owner, being aggrieved by the said award sought a reference. The Reference Court after recording the evidence of the land owner granted compensation at the rate of Rs.50,000/- per Acre which was the agreed rate after negotiation. When the matter reached to this court, similar arguments were ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 15 Judgment advanced to submit that as the relevant methods for determination of the market price were not followed by the Reference Court and merely on the basis of the offer made by the Collector, the compensation was determined at the rate of Rs.50,000/- per Acre, the said compensation being not determined properly, needs to be reduced.
20] However, this argument was rejected by this court, holding that if the Collector had issued the certificate about the price of the land being Rs.50,000/- per Acre and had also negotiated the sale price with the owner and sent a proposal to Government to acquire the land at the rate of Rs.50,000/- per Acre and the Government has accepted the proposal and even sanctioned the amount and made the financial provision, then the Acquiring Body cannot resile from this position, consequently the Government cannot also resile from it. Accordingly it was held that the Reference Court has considered the evidence properly and awarded the compensation at the rate of Rs.50,000/- per Acre with the solatium and interest.
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0308 FA 1093/2012 16 Judgment 21] According to learned AGP, however, in this reported
case, there was evidence led by the claimant, of two witnesses showing that his land was in residential zone and has a potentiality of conversion and therefore on the basis of that evidence, it was held that the market price of the said acquired land would come to Rs.54,000/- per Acre and it was held that the price offered by the Acquiring Body at the rate of Rs.50,000/- per Acre being below it, the compensation awarded at the said rate was proper. Moreover, it is submitted that in the said case, the proposal for acquisition of land at the rate negotiated was already sent to the Government and it was accepted by the Government. Not only that, financial provision was also made by sanctioning the amount. In this case, it is submitted that no such proposal was sent by the Collector to the Government and there was no financial provision made for it. 22] In my considered opinion, however this submission cannot be accepted as admittedly in this case, the proposal was initiated by the Collector, at the instance of the Acquiring Body. After the negotiation, the Collector has accepted to the rate of Rs.4,640/- per sq.mtr. and on that acceptance respondent has also ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 17 Judgment acted and sought approval and sanction from its Head Office. Not only that, respondent had also handed over the possession of the land to the appellant, even before the issuance of Notification under section 4 of the Act. In such situation, now the appellant cannot resile from its proposal.
23] Moreover, in the instant case, the evidence of the respondent about the potentiality of the acquired portion of the land is not at all seriously challenged. His evidence goes to show that the acquired plot is situated in the heart of the city of Akola and this plot is having potential value for residential purpose. His evidence further proves that the area where his plot is situated is a busy residential and commercial locality and the rich class of persons reside in the vicinity of the plot in question and therefore respondent has claimed the enhancement of compensation at the rate of Rs.4,640/- per sq.mtr.. There is absolutely no searching cross-examination of the respondent on this aspect. The suggestion put to him that the said plot is under the flood affected zone and therefore the price as per the ready reckoner was not applicable to the said plot is denied by him. Surprisingly the suggestion is put to ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 18 Judgment him in cross-examination that at the time of acquisition, the rate of plot situate adjacent to Tilak Road and touching Tilak Road was Rs.4,640/- as per the ready reckoner.
24] Thus, the evidence of Respondent about the potentiality, location and situation of the acquired plot has remained unchallenged on record. As a matter of fact, at the relevant time, the market price of the said plot really appears to be high and hence in the Basic Valuation Register its rate was Rs.4,640/- per sq.mtr.. That appears to be the reason why the Collector, Akola has accepted the said price, after negotiation. Otherwise he would not have done so. Moreover, if it was not acceptable, then the Collector would not have taken over possession of the plot before initiating acquisition proceedings. 25] It is also pertinent to note that, if according to appellant, the market price of the acquired plot can be only as decided by the SLAO, at the rate of Rs.260/- per sq.mtr., then some evidence should have been adduced by the appellant to that effect. ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 :::
0308 FA 1093/2012 19 Judgment At least the SLAO, who has determined the said price, should been examined to prove the sale instances on which he has relied in his award. For that matter, those sale instances also could have been produced by the appellant by examining the witnesses. Not a single witness is examined by Appellant to show that market price of the plot at the relevant time cannot be Rs.4,640/- per sq.mtr. In such situation, and in the absence of any contra evidence produced by the appellant, I do not find that Reference Court has committed any error, particularly in the facts and circumstances of the present case, to assess the compensation at the rate of Rs.4,640/- per sq.mtr. which was also, the rate as per the proposal accepted by the Collector himself.
26] As regards the grievance raised by learned AGP that now the respondent is held entitled not only to the purchase price at the rate of Rs.4,640/- per sq. mtr. but also to other statutory benefits like 30% solatium, 15% per annum interest and 12% additional component and hence amount of compensation payable to Respondent becomes exorbitant. In my considered opinion, this submission is devoid of merits as the Appellant proceeded for ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 ::: 0308 FA 1093/2012 20 Judgment acquisition of the land under the Act even after the negotiations relating to fixing of purchase price were completed and accordingly possession was also delivered by the Respondent. Hence, all the provisions of the Act relating to solatium and interest become applicable. Therefore, the grievance raised on that point also cannot be accepted.
27] The net result, therefore, is that, appeal holds no merits, hence stands dismissed.
28] At this stage, learned counsel for respondent seeks permission to withdraw the amount of compensation which is deposited in the court.
29] Learned AGP, however seeks time of 12 weeks in order to enable him to approach the Hon'ble Supreme Court against the judgment of this court.
30] Learned counsel for respondent opposes the grant of stay to the operation of this judgment and order. ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 :::
0308 FA 1093/2012 21 Judgment 31] However, considering the legal issue involved in this
appeal, it is always desirable to give some opportunity to the the appellant herein, to take necessary recourse to the higher forum. Therefore, stay is granted to the execution of this judgment and award for a period of 12 weeks.
JUDGE Yenurkar ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 00:52:18 :::