Gulam Nabi Gulam Gawas Dead ... vs State Of Maharashtra Through The ...
2002 Latest Caselaw 715 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. This first appeal is directed against a dismissal of a reference under section 18 of the Land Acquisition Act, 1894 by the judgment of the learned Assistant Judge, Akola, delivered on 30th April, 1984. The lands in question bearing Survey No. 40 of mouza Akoli Khurd admeasuring five acres came to be acquired for the rehabilitation of displaced person from the project of the Punjabrao Krishi Vidyapeeth Agricultural University. A notification under section 4 of the Land Acquisition Act, 1894 was issued on 16th May, 1974. The declaration under section 6 of the Act was issued on 23rd September, 1976. The Award of the Land Acquisition Officer was made on 20th December, 1982. The original claimant made a claim on the basis of the market value of the land computed at the rate of Rs. 5,000/- per acre. In the Award, the Special Land Acquisition Officer granted to the original claimant compensation at the rate of Rs. 2,400/- per acre. In the reference under section 18 of the Land Acquisition Act, a claim at the rate of Rs. 10,000/- per acre came to be made. By the impugned judgment dated 30th April, 1984, the reference has been dismissed by the learned Assistant Judge, Akola. The judgment of the Reference Court is a common judgment delivered in a batch of references, each of which has been dismissed. The appellant, as already noted earlier, had made a claim before the Special Land Acquisition Officer for compensation on the basis of the market value of the land which, according to him, was Rs. 5,000/- per acre. Under the provisions of section 25 of the Land Acquisition Act, 1894, as they then stood, the appellants would be disentitled to claim in the reference compensation at the rate which was higher than what had been claimed in the Award proceedings. The provisions of section 25 came to be amended in 1984 and after the amendment, the only embargo that has now been imposed is that the maximum awarded by the Reference Court shall not be less than what has been awarded by the Collector in the acquisition proceedings. However, the learned Counsel for the appellant has fairly drawn the attention of this Court to the recent judgment of the Supreme Court in Airports Authority of India v. Satyagopal Roy and Ors., . The Supreme Court has held that section 25 is a substantive provision and in order that the benefit of the amended provision would enure to the claimant the acquisition should have commenced after 24-9-1984. In the present case, the acquisition having been commenced by the issuance of a notification under section 4 of the Act, on 16th May, 1974, the appellants would be disentitled to claim anything in excess of Rs. 5,000/- before the Reference Court. About this position, there is no dispute. None has been raised in the submissions, on this aspect.

2. Now coming to the merits of the claim for enhancement, it would be necessary to briefly advert to the evidence which was adduced before the Reference Court. On behalf of the appellants, the first witness who deposed in the case was Ghulam Abid, the son of the original appellant Ghulam Nabi. He deposed to the effect that there is a well situated in the field and that the canal of the Morna project passes through the field. The witness stated that two crops were being obtained during the Kharif and Rabi seasons respectively and about 15 acres of the field was under canal irrigation. The witness stated that vegetables were being grown in an area comprised of five acres and from the well water a wheat crop was being obtained to the extent of about ten acres. The witness claimed that a net profit of Rs. 2,000/- per acre was being made from the lands in question. Insofar as the location of the lands is concerned, the witness stated that the Akola Loni passes by the side of the field and that the Akola Washim Road is situated two fields away. The witness stated that the field was only one mile away from the city Kotwali of Akola and four to five furlongs from the octroi check post of Akola Municipality. The witness also stated that development had taken place in the locality even beyond his field and that a colony known as Gadge Nagar was two fields away from the field. According to him the market value of the land in the year 1974 would be between Rs. 15,000/- to Rs. 20,000/- per acre.

3. Reliance was sought to be placed on a sale instance relating in the present case to a field bearing Survey No. 30. The sale instance was of 15th December, 1972 and under the sale transaction land to the extent of two acres comprised in the aforesaid survey number was sold at and for a consideration of Rs. 15,000/- per acre. The vendor, Shaikh Hamza, deposed in evidence. His evidence was to the effect that the field in question in the sale instance had black cotton soil and that the lands at Akoli Khurd (the lands in acquisition) were somewhat of an inferior nature. The witness produced the relevant extract from the index register relating to the said transaction. The witness stated that there was a strip of 100 feet between his field and the road and that houses had been constructed on that strip of land almost fifteen years ago. He adverted to the fact that a layout had been prepared thereon by several persons and plots within the layout had been sold in order to give way to the construction of houses. The witnesses stated that on the date of his deposition Survey No. 30 was within the Municipal area and was duly provided with electric and water connections.

4. The evidence before the Reference Court was recorded in the month of April, 1984. For the purpose of determining the claim for enhancement of compensation what was relevant was the market value of the lands on 16th May, 1974 when the notification under section 4 was issued. The sale instance which was produced in support of the claim for enhancement was of Survey No. 30 in respect of which the sale transaction had taken place on 15th December, 1972. The total extent of the lands was two acres and, therefore, of an area less than half the lands in acquisition. Survey No. 40 under acquisition admeasured five acres. The second aspect which would merit emphasis is that the vendor, whose lands were sold in the sale instance, categorically stated that the lands under acquisition were inferior to his lands comprised in Survey No. 30. The next important aspect which would merit emphasis is that the sale instance is about two years prior to the notification under section 4. The Court will also have to consider the distance between the lands in the sale instance and Survey No. 40 which was under acquisition.

5. C.W. 1 stated that the agricultural field, Survey No. 30 was separated from the field under acquisition by one other field. In the course of his cross-examination the witness stated that Survey No. 40, which was under acquisition, was on the Western side of the Akola-Washim Road and that there were two other fields bearing Survey Nos. 43 and 44 between his field and the Akola Washim Road. The witness also deposed to the fact that there is an agricultural farm on the Eastern side of the Washim Road. This statement of C.W. 1 has to be read in juxtaposition with the evidence of C.W. 3, who was the owner of Survey No. 43 besides being the claimant in Land Acquisition Case No. 16 of 1983. He stated that the field at Survey No. 30, which had been sold by Shaikh Hamza, was three fields away from his own field and that the field bearing Survey No. 30 was 300 feet away from the Washim Road. C.W. 4 refers to the existence of a Government Farm admeasuring about 200 acres. The Reference Court has adverted to the existence of the Government owned agricultural farm on the Eastern side of the Washim Road. The lands in dispute were situated on the Western side of the road.

6. The sale instance dated 15th December, 1972 was, in my view, of a considerable probative value, though as would be noted shortly hereafter, relevant adjustments would have to be made in respect of variation in some of the circumstances in respect of the sale instance, which have been already noted. The sale instance was proximate in point of time and was prior to the notification under section 4. There would in fact be some escalation in price between the date of the sale instance and the notification under section 4. The lands in the sale instance are situated in geographical proximity to the lands under acquisition. C.W. 1 deposed to the fact that there was only one field between Survey No. 40 and Survey No. 30. The learned Assistant Government Pleader urged that this may not be quite accurate because the evidence of C.W. 3 would show that there were three fields situated between Survey No. 30 and his field being Survey No. 43 and the Akola-Washim Road was at a distance of 300 feet from the field bearing Survey No. 30. Even if the evidence of C.W. 1 which is to the effect that there was only one field separating the land comprised in the sale instance and the land under acquisition is not entirely accurate and as the learned A.G.P. would point out there were two or three fields in between that, in my view, would not detract from the position that these lands were situated in close geographical proximity with each other. Therefore, the sale instance is material circumstance which ought to have been borne in mind by the Reference Court. Now it does appear that the lands in the sale instance were superior to the land under acquisition. Moreover, the lands in the sale instance were almost half the size of the land under acquisition and, therefore, a corresponding reduction in the market rate in respect of the lands comprised in the sale instance would have to be made. On the other hand, there would be an escalation in prices since the sale instance and till the notification under section 4. The question that would arise for consideration is as to the extent to which the rate which is reflected in the sale instance would have to be revised to account for these factors.

7. The Reference Court rejected the sale instance and the claim for enhancement principally by noting that on the Eastern side of the Washim Road there was a Government agricultural farm, whereas the lands which were in question were situated on the Western side of the road and away from the road. The learned trial Judge was of the view that there was no evidence to show that the lands in question had any potentiality for being converted into non-agricultural use. The Court held that there was no concrete evidence to show that residential localities had come up adjoining any of the fields in question. The fact that the limits of the Municipal Council had been recently extended would not necessarily be reflective of the position in 1974. The Court noted that C.W. 7 who was a witness from the town planning department was unable to state the year in which the Municipal limits had been extended. Insofar as the sale instance was concerned, the Reference Court held that the evidence of C.W. 11 showed that the lands comprised in Survey No. 30, which formed the sale instance, were within the Municipal limits. This assessment of the evidence by the Reference Court, in my view, is not appropriate for the reason that what C.W. 11, who had sold Survey No. 30, stated in the course of his cross-examination which took place on 20th April, 1984 was that the lands were now within Municipal limits. The witness stated that between the field and the road there was a strip of 100 feet in which houses have been constructed almost 15 years ago. This aspect of the evidence has not been appreciated by the Reference Court. Moreover, in assessing the potentiality for the development of the land in May 1974 when the notification under section 4 was issued the Reference Court has not considered the evidence of C.W. 1 who stated that the field was only about one mile away from the city Kotwali of Akola and four to five furlongs from the octroi naka of Akola Municipal Council. Even if this is reflective of the position on the date on which the evidence was tendered, this in my view would not detract from the potentiality of the land on the date when the notification under section 4 was issued. The purpose of the notification under section 4 was in fact for the rehabilitation of persons displaced in the project of the Punjabrao Krishi Vidyapeeth-Agricultural University. The evidence of all the witnesses who deposed in the case is sufficient to indicate that even in the year 1974 the lands in question had a substantial potential for non-agricultural use. The entire appreciation of the evidence by the Reference Court is flawed.

8. The view which I am inclined to take is supported by a judgment of a learned Single Judge of this Court in F.A. No. 181 of 1984. The lands in question involved in the aforesaid first appeal were comprised in Survey No. 32/2 of Akoli Khurd and the claimant before the Court was the claimant in Land Acquisition Case No. 27 of 1983 which was also disposed of by the common judgment delivered on 30th April, 1984 which is impugned in these proceedings. The lands were acquired under the same notification. The learned Single Judge came to the conclusion that the Reference Court had erred in holding that the lands did not have a potential for non-agricultural use on the date of the notification under section 4. This Court noted that it had been brought on record that the sale instance indicated the trend of market prices. Though the land acquired was not within Municipal limits, it had been brought on record that it was situated at a distance of two miles from the city Kotwali and was abutting the National High Way. It had also come on record that residential localities had developed at a distance of four furlongs from the land in acquisition. Having regard to all these circumstances, it was held that the land had a sufficient potentiality for non-agricultural use. In the circumstances, the order of the Reference Court came to be set aside and compensation at the rate of Rs. 5,000/- per acre together with solatium and interest came to be awarded under the judgment of this Court in the first appeal.

9. This judgment of the learned Single Judge was followed by another learned Single Judge (Mr. Justice D.K. Deshmukh) in F.A. No. 9 of 1986. The aforesaid first appeal related to land comprised in Survey No. 35 and the claimants there were the claimants in Land Acquisition Case No. 18 of 1983, in which also the Reference Court had dismissed the reference by the common judgment dated 30th April 1984, which is impugned in these proceedings. D.K. Deshmukh, J., followed the earlier decision of this Court which had accepted the claim for compensation at the rate of Rs. 5,000/- per acre. In First Appeal 9 of 1986, however the claim was restricted to an amount of Rs. 12,000/-. These decisions, in my view and with respect, lay down the correction position with which I concur.

10. The attention of the Court has been, however, drawn to a judgment dated 7th October, 1996 of another learned Single Judge (Mr. Justice B.U. Wahane) in First Appeal No. 146 of 1985. The aforesaid first appeal related to the lands covered by the same notification. The lands therein were comprised in Survey No. 43 of Akoli Khurd. The Reference Court had rejected the claim for enhancement on the ground that the claimant had not produced the crop statement to show that the field had been harvested twice every year. The Reference Court noted that no evidence had been produced to show that the market value of the land was Rs. 6,000/- per acre. Though reliance was placed on an index register (Exhibit 26), this Court noted in its judgment dated 7th October, 1996 that the index register pertained to the year 1982. Moreover, the field which had been sold in the year 1982 was of a much superior quality and was a post sale transaction. These were the reasons which weighed with this Court in rejecting the first appeal against the judgment of the Reference Court. The reasons which weighed with this Court have been referred to in some detail because they would show that the facts of the First Appeal (F.A. No. 146/85) which was decided by this Court on 7th October, 1996 were clearly distinguishable.

11. Be that as it may, I have considered the evidence which has been adduced on behalf of the original claimant in these proceedings, in considerable detail in order to consider as to whether a case for enhancement has been made out. Having heard the learned Counsel and for the reasons already indicated, I am of the view that the appellants have established their case for enhancement. The learned Assistant Judge has error in dismissing the claim for enhancement.

12. Insofar as the quantum of enhancement is concerned, as already noted, the sale instance of 15th December, 1972 reflects a market rate of Rs. 15,000/- per acre. The appellants cannot in any event claim compensation in excess of Rs. 5,000/- per acre, since in view of the provisions of section 25 of the Act, as they then stood and which are applicable, the appellants would not be entitled to claim in excess of what was claimed before the Land Acquisition Officer. This Court in First Appeal No. 181 of 1984 has awarded compensation at the rate of Rs. 5,000/- per acre to the lands comprised in Survey No. 32/2. The lands in Survey No. 32/2 are better located than the lands bearing Survey No. 40 which form the subject matter of this first appeal. The judgment of the learned Single Judge dated 1st March, 1995 in First Appeal No. 181 of 1984 shows that the land in Survey No. 32/2 was abutting the National HighWay. Those lands are in close proximity to the sale instance dated 15th December, 1972 than the land in acquisition in the present case. As already noted earlier, the lands under acquisition were inferior to the land in the sale instance and were almost twice the area thereof. Considering all the facts and circumstances of the case, including the previous decisions of this Court, I am of the view that it would be appropriate to Award compensation at the rate of Rs. 4,500/- per acre in respect of Survey No. 40 which forms the subject matter of this first appeal.

13. Accordingly, this first appeal shall stand allowed and the order of the learned Assistant Judge dated 30th April, 1984 shall stand quashed and set aside insofar as it dismisses the reference filed by the appellants herein, being Land Acquisition Case No. 17 of 1983. There shall accordingly be an order to the effect that the appellants shall be entitled to enhanced compensation computed on the basis of the market value of Survey No. 40 being Rs. 4,500/- per acre. As already noted earlier, the appellants had been awarded compensation at the rate of Rs. 2,400/- per acre by the Land Acquisition Officer. The appellants would be entitled to an enhancement in the aforesaid terms.

14. The Award in the present case was made on 20th December, 1982. Having regard to the judgment of the Supreme Court in Union of India v. Raghuvir Singh, 1989(2) S.C.C. 751, the appellants would be entitled to solatium at the enhanced rate of 30% on the market value under section 23(2) of the Land Acquisition Act, 1894. The appellants would also be entitled to the benefit of the provisions of section 23(1-A) of the Act. Insofar as interest is concerned, the appellant would be entitled to the benefit of the provisions of section 28 of the Land Acquisition Act. Furthermore, in view of the recent judgment of the Supreme Court in Sundar v. Union of India, 2001(7) S.C.C. 211, the appellants would be entitled to interest on the market value inclusive of solatium. The first appeal is allowed in aforesaid terms.