Bombay High Court
The State Of Maharashtra Through ... vs Shashikant Bhagwant Jadhav And ... on 8 August, 2003
Bench: B Marlapalle, P Kakade
JUDGMENT
B.H. Marlapalle
1.The Regional Development Plan for Aurangabad was sanctioned vide notification dated 20th March, 1971 by the Government of Maharashtra and it was amended by notification dated 30th October, 1972 and 3rd February, 1973. By a notification dated 4th May, 1973 the Government of Maharashtra was pleased to appoint the City and Industrial Development Corporation of Maharashtra Ltd. (CIDCO) as the Special Planning Authority for the Aurangabad new township under section 40(1)(b) read with section 113 of the Maharashtra Regional and Town Planning Act, 1966 (the MRTP Act, for short). The CIDCO carried out survey and prepared a draft proposal for the development plan by publishing it in the Maharashtra Government Gazette dated 24th May, 1973 as per the provisions of section 40 (3) (d) of the MRTP Act and the same was approved by the State Government. It approached the Collector, Aurangabad vide letter dated 8th May, 1985 with a request to initiate the land acquisition proceedings under the Land Acquisition Act, 1984 (Land Acquisition Act, for short) read with section 126 of the MRTP Act and, in turn, the Collector entrusted the proposal to the Land Acquisition Officer vide his letter dated 29th May, 1985. A notification under section 6 of the Land Acquisition Act read with section 126 (4) of the MRTP Act was submitted to the Collector for his approval, which was granted by the Collector on 29th September, 1986. The said notification was published in the Government Gazette dated 1st January, 1987 and in the local newspapers at Aurangabad on 1st January, 1987 (Aurangabad Times) and 3rd January, 1987 (Daily Lok Vijay).
2.Notices were served on the land owners under section 9(3) of the Land Acquisition Act on or about 10th June, 1987 and, in reply, they had submitted their claim for compensation at the rate of Rs.10/- per square foot on or about 22nd June, 1987 and the said claim was supported by ten sale instances in respect of the lands in the neighbouring areas. Award at Exhibit-46 came to be passed by the Land Acquisition Officer on 14th December, 1988 and the compensation at the rate of Rs.1,20,000/- per hectare (Rs.48,000/- per Acre), which come to about Rs.1.20 Ps. per square foot, was granted in respect of the following lands from village Satara, which were part of the development plan.
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Gat No. Area in hectares
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21 ...... 4.96 122
...... 3.70 123
...... 0.98 124/1
...... 7.78
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3. We are concerned with the land in Gat No. 121 and 122 of village Satara, in these appeals. The compensation amount was paid on or about 21st December, 1988 and possession of the land was handed over on the same day. While receiving the compensation amount, under protest, the claimants submitted applications for higher compensation at the rate of Rs.30/- per square foot. The claims were received by the Reference Court on 7th March, 1989 and they came to be registered as L.A.R. Nos. 27 to 32 of 1989. The Reference Court clubbed all these six References together and by a common award dated 6th April, 1993 granted compensation at the rate of Rs.5/per square foot with interest under section 28 of the Acquisition Act. Being aggrieved by the higher compensation granted by the common order, the State Government, along with CIDCO, has filed First Appeal Nos.347 to 352 of 1993 and the claimants, on the other hand, have filed Appeal Nos. 450 of 1994, 762 of 1997, 364 of 1998 and 96 of 2003. The claimants stated that once the Reference Court had arrived at the market price of the subject land at the rate of Rs.20/- per square foot, it ought to have deducted about 30% amount towards development charges and fixed the net compensation payable at the rate of Rs.14/ per square foot rather than fixing the compensation at 1/4th of the market value determined by the Reference Court and that too without giving any reasons. The challenge by the claimants, thus, is to the limited extent on this point alone viz. whether it was permissible for the Reference Court to bring down the compensation payable to them to 25% of the market price determined by it.
4. The land in Gat No. 121, admeasuring 4 hectares 97 Ares was originally owned by one Shri B.N.Jadhav when the development plan for the new township was published on 24th May, 1973. Whereas, the land admeasuring 3 hectares 70 Ares from Gat No. 122 was owned by Shri Shahare. Shri Jadhav, the owner of land Gat No. 121, had submitted a representation on 1st January, 1979 to CIDCO requesting for dereservation of the same and the said request was turned down by reply dated 14th/ 16th February, 1979 (Exhibit-38/3). Subsequently, the said land in Gat No. 121 was purchased by four different persons, who were claimants in L.A.R. No. 27 of 1989, 28 of 1989, 30 of 1989 and 32 of 1989, with their equal individual share of 1 hectare and 24 Ares. On the other hand, the land in Gat No. 122 was purchased by the claimants in L.A.R. No. 29 of 1989 and 31 of 1989 in the year 1986 i.e. just prior to the notification published in the gazette on 1st January, 1987 under section 126 (4) of the MRTP Act. The claimants in L.A.R. No. 29 of 1989 and L.A.R. No. 31 of 1989 had equal share i.e. 1 hectare 85 Ares, each. It appears that the claimant in L.A.R. No. 31 of 1989 Shri Baba Bhand, alongwith three others, had also obtained N.A. permissions from the Tahsildar, Aurangabad and divided the land in number of plots for sale. The N.A. permissions have been brought on record at Exhibits-86 and 90.
5. On behalf of the claimants three witnesses were examined viz. P.W.1 Shri W.T.Kshirsagar (Exhibit-14) for himself in L.A.R. No. 32 of 1989 and as a power of attorney for claimants in L.A.R. Nos.28 of 1989 and L.A.R. No. 30 of 1989, P.W.2 Shri Baba Bhand (Exhibit-40) for himself in L.A.R.No. 31 of 1989 and as power of attorney for claimants in L.A.R. No. 29 of 1989 and P.W.3 Shri S.K.Waghose (Exhibit-41) for himself in L.A.R. No. 27 of 1989. The Land Acquisition Officer Shri D.G.Bhalerao was examined as D.W.1 at Exhibit-45 and on behalf of CIDCO, for whom the land was acquired, D.W.2 Shri D.N.Upadhye (Exhibit-55) was examined. The claimants had relied upon the two sale instances in respect of land in Gat No. 40 and 41 of village Satara which was acquired for the ring road project and the rate was paid at Rs.9.30 ps. per square foot pursuant to the compromise decree passed on 28th January, 1988 though the acquisition proceedings had started in the year 1978. On the basis of the notice dated 12th March, 1992 (Exhibit-35) issued by the Commissioner of Aurangabad Municipal Corporation, the claimants had stated that the subject land was part of the Corporation area and, therefore, they were entitled for market price as applicable to the land in urban/ corporation area. They had also relied upon the valuation report at Exhibit-25/1 and 26/1 dated 13th April, 1992 received from the Sub- Registrar, Aurangabad. In any case they had claimed that the subject land had urban potential and they were entitled for a compensation at the rate of Rs.30/- per square foot.
6. It was further stated that the subject land in Survey No. 121 and 122 was utilised for construction of residential tenements of middle income group and from one Acre of land 65 tenements, sold at Rs. 50,000/- each, were constructed on the basis of the booklets published by CIDCO. It was contended by them that the subject land was in the neighbourhood of the land in Gat Nos. 40 and 41 of village Satara and they were entitled for the market value thrice the market value paid to that land, by way of compromise decree before the Reference Court, as that acquisition pertained to the year 1978. Map at Exhibit-15 was placed before the Reference Court in support of the contentions that the land in Gat Nos. 40 and 41 was adjoining the subject land. The sale instances at Exhibits-29 and 30 pertained to the said land subsequent to the compromise decree. Similarly, sale instances at Exhibit-27 and Exhibit-28 were also relied upon from the same gat numbers.
7. The Land Acquisition Officer (D.W.1), on the other hand, stated that the claimants, by their written representation dated 22nd June, 1987, had claimed compensation at the rate of Rs.10/- per square foot and in support of this claim they had submitted in all ten sale instances, but of small plots. He had independently collected sale instances and found two of them to be relevant. He, thus, prepared a chart of 12 sale instances (Exhibit-48) and also submitted a map at Exhibit-47 showing the locations of the lands of sale instances relied upon by the claimants and by himself. He stated that the claimants in L.A.R. No. 31 of 1989 and 27 of 1989 were granted N.A. Permission under section 44 of the Maharashtra Land Revenue Code but he was doubtful whether the Tahsildar had such powers. He also stated that he did not take these N.A. permissions into account while determining the market value and on the basis of the N.A. permissions the subject lands were divided into 90 and 85 plots, respectively, with each plot admeasuring 2000 square feet. D.W.2 Shri Upadhye brought on record all the sale instances referred to by the Land Acquisition Officer in his award and submitted one more map at Exhibit-56 and he supported the compensation amount fixed by the Land Acquisition Officer at Rs.1,20,000/- per hectare.
8. The Reference Court had framed issues at Exhibit-1 on 20th July, 1991 in L.A.R. No. 32 of 1989 and the same issues were treated to be the common issues in all the References. CIDCO had filed an application at Exhibit-43 under section 50(2) of the Acquisition Act seeking permission to implead as Respondent No. 2 in view of the fact that the Land Acquisition Officer was arrayed as the sole respondent. The said application, submitted on 21st November, 1992, though resisted, was allowed by the Reference Court and the CIDCO was allowed to lead evidence. The court noted the emphasis placed by the claimants on the sale instances at Exhibits-81 and 82 as well as the N.A. permission at Exhibit-90. The learned Judge also ventured to visit the subject land on 20th March, 1993 and placed his notes of inspection at Exhibit-93. He noticed that about 60 tenements were constructed out of one acre of land and each tenement was admeasuring about 18 Square meters built up area and valued at Rs.42,000/-. The Court noted that one tenement occupied land admeasuring 40 square meters.
9. In the impugned award the following findings have been recorded by the Reference Court:
(a) The subject lands were located within the municipal corporation area with effect from 4th December, 1982, on the basis of the public notice dated 12th March, 1992 issued by the Aurangabad Municipal Corporation in the local newspapers at Exhibit-35. Reliance in this regard was also placed on the N.A. permissions granted by the Tahsildar on 6th of April, 1987 in respect of the land in Gat No. 122 and the evidence of Shri Bhalerao at Exhibit-45.
(b) The subject land was notified as part of the development plan with effect from 24th May, 1973 and a period of ten years had expired on 23rd May, 1983; the claimant Shri W.T.Kshirsagar (P.W.1) had issued notice under section 127 of the MRTP Act to CIDCO; D.W.2 Shri Upadhye had admitted the receipt of such a notice; and notification was published on 22nd January, 1987 under section 126 (4) of the MRTP Act after about 3 to 4 years from the date of notice under section 127.
(c) By relying upon a decision of this Court in the case of "Sant Jogindra Sing V/s State of Maharashtra" [1989 Mh.L.J. 819] the notification issued on 22nd January, 1987 could not have the effect of entitling the authorities to acquire the land under the provisions of the MRTP Act and they could have proceeded for acquisition under the Land Acquisition Act.
(d) The notification under section 126 (4) of the MRTP Act, having been published after a lapse of three years from issuance of notice under section 127 of the MRTP Act, was bad in law and as such the entire acquisition would be illegal and void. (e) The market value could not be determined on the basis of the date of the notification under section 126 (4) of the MRTP Act i.e. 22nd January, 1987 and by relying upon the decision in the case of "Ujjain Vikas Pradhikaran etc. etc. V/s Rajkumar Johri and others, etc. etc." the market value was required to be determined as on 22nd January, 1990.
(f) The sale deeds at Exhibits-78 and 79, submitted in L.A.R. Nos. 29 of 1989 and 31 of 1989, purchased by the claimants in Gat No. 122, could not be considered for determining the market value.
10. The Reference Court, to our utmost surprise, discarded the evidence of the claimants as well as the Land Acquisition Officer and CIDCO for determining the market value. Instead, it got carried away by its inspection visit and by accepting Rs.42,000/- as the market price of each tenement it concluded to hold that the actual costs of construction would come to Rs.18,000/- per tenement for a built up area of 180 square feet and the balance amount Rs.24,000/- was treated to be the land costs and by deducting an amount of 40% towards the development charges, it concluded that the plot of 400 square feet was sold for Rs.14,400/- i.e. at the rate of Rs.36/- per square feet but as on the date of deposit i.e. 24th February, 1993. It further proceeded to reduce the land price so as to appropriate it as on 22nd January, 1990 and held that the land price could be fixed at Rs.20/- per square foot as on 22nd January, 1990. By further relying upon the decision in the case of Ujjain Vikas Pra..... (supra) it held that only 1/4th of Rs. 20/- was required to be granted as the market price as in March, 1990 and awarded accordingly, in respect of the subject land.
11. Shri Bajaj, the learned counsel appearing for the State Government and CIDCO, submitted that the impugned award suffers from errors manifest on the face of the record and it is in utter disregard to the provisions of sections 23 and 24 of the Land Acquisition Act. He further submitted that the land price was required to be determined as on the date of the notification i.e. 22nd January, 1987 and not as on 22nd January, 1990 or on the date of inspection. The Reference Court had no powers to proceed in devising its own formula when both the parties had adduced oral as well as documentary evidence in support of their respective claims on the basis of comparable sale instances. It was not permissible in law for the Reference Court to shift the date for fixation of the market value from 22nd January, 1987 to 22nd January, 1990 and, in any case, there was no evidence in support of the Reference Courts findings that a purchase notice under section 127 of the MRTP Act was served on CIDCO by the claimant (PW1). It was also urged before us that the claimants in L.A.R. Nos. 29 of 1989 and 31 of 1989 had themselves purchased the entire land in Gat No. 122, admeasuring 3 hectares 70 Ares for an amount of Rs.80,000/-, as was evident from the sale deeds at Exhibits-78 and 79 in the year 1987 and that was the best evidence for determining the market value of the subject land as on 1st January, 1987. In support of this contention reliance has been placed on the decision of the Supreme Court in the case of "Special Tahsildar Land Acquisition Vishakapatnam V/s A. Mangala Gowri (Smt.)" .
12. Shri Shelke, the learned counsel for the claimants has, on the other hand, supported the determination of the market price at Rs.20/- per square foot as on 22nd January, 1990 and submitted that once the said price was determined it was not permissible for the Reference Court to reduce the same to 1/4th and fix the market price payable to the claimants at Rs. 5/- per square foot, though it was permissible for the Reference Court to allow deductions of about 30%. In short, it was submitted by him that once the market price, as on 22nd January, 1990, was fixed at Rs.20/- per square foot, by giving a deduction of 30% for development, the Reference Court ought to have fixed the market price at the rate of Rs.14/- per square foot. He also submitted that the Reference Court had rightly shifted the date from 22nd January, 1987 to 22nd January, 1990 for determining the market price.
13. Amongst all the claimants, only P.W.1 had stated, in his examination-in-chief, regarding the purchase notice in the following words:
"Acquisition proceedings were not effected till 1983, since 1973. In November, 1983 when six months were lapsed beyond 10 years, I gave notice to the Government for claiming my property rights, on the acquired land Gat No. 121 and thereafter started laying plots as per my choice in the acquired Gat No. 121."
In his cross examination, he admitted:
"I have not produced notice given to Government in the year 1983 about six months after lapse of ten years".
Such a notice, admittedly, was not brought on record by any of the parties. There is no proof of service of such a notice. Mere acceptance by D.W.2 Shri Upadhye, in his cross-examination that a copy of the said communication was received by CIDCO, would not be sufficient for the Reference Court to hold that such a notice was indeed served and the provisions of section 127 of the MRTP Act, regarding lapsing of reservation, had taken effect. In the case of "Municipal Corporation of Greater Bombay V/s Dr. Hakimwadi Tenants Association and others" the Supreme Court has stated regarding the scheme of section 127 of the MRTP Act, thus:
"According to the plain reading of section 127 of the Act, it is manifest that the question whether the reservation has lapsed due to the failure of the Planning Authority to take any steps within a period of six months of the date of service of the notice of purchase as stipulated by section 126, is a mixed question of fact and law. It would therefore be difficult, if not well nigh immpossible, to lay down a rule of universal application. It cannot be posited that the period of six months would necessarily begin to run from the date of service of a purchase notice under section 127 of the Act. The condition prerequisite for the running of time under section 127 is the service of a valid purchase notice."
14. The decision of this Court in the case of Sant. Jogindra Sing (supra) fell for consideration before the Apex Court in the case of "State of Maharashtra and another V/s Sant Joginder Sing Kishan Singh and others" and it was held that failure to make award within a period of two years from the date of declaration under section 126 (4) of the MRTP Act would not result in the lapsing of the notification and the provisions of section 11A of the Land Acquisition Act were not applicable. The decision of this Court was ultimately set aside.
15.In the case of "Ujjain Development Authority" (supra) the notification issued under section 4 of the Land Acquisition Act was annulled on the ground that the statutory precondition had not been complied with for the scheme to operate. However, the Supreme Court thought it appropriate to allow the appeal and the acquisition to remain subject, however, to the condition that the notification under section 4(1) of the Act, issued in 1985, shall be deemed to be one dated January 1, 1988 and the market value of the land for the acquisition shall be determined with reference to that date i.e. 1st January, 1988. By no stretch of imagination this decision of the Apex Court could be held to be applicable to the case at hand. There was nothing on record before the Reference Court to show that prior to the gazette published on 1st January, 1987 the notification under section 126 (4) of the MRTP Act was ever published in respect of the subject land. The Reference Court committed a manifest error in law by applying the decision of "Ujjain Development Authority" (supra) and shifting the date for determination of the market value from 22nd January, 1987 to 22nd January, 1990.
16. Now, coming to the issue of non-agriculture permissions obtained by two of the claimants, admittedly, such permissions were obtained after the section 126 (4) notification was published and the authority who granted such permissions failed to notice the steps taken for acquisition by the Land Acquisition Officer. There is no notice issued to SALO/ CIDCO before the N.A. order was passed and this was no necessary because the land was already under acquisition for CIDCO. In L.A.R. No. 32 of 1989 copies of the communication dated 18th August, 1988/ 6th September, 1988 addressed by the Assistant Collector, Aurangabad to the following individuals, were brought on record: (1) Laxman Ganpatrao Jagtap (2)Prakash Kachru Jagtap; (3)Raosaheb Rangnathrao Borade; (4)Jaisingh Buwasaheb Naumou; (5)Ashok Shridharrao Kedare; (6) Baba Sanduba Bhand; (7)Bhaskar Sahebrao Kedare; (8)Shridhar Deorao Kedare; (9)Murlidhar Uttamrao Kedare. It stated that the orders passed by the Tahsildar (N.A.), Collectorate, Aurangabad bearing No.RB/ DESK-II/ NAA/ ABAD/ 3687/87 and RB/ DESK.II/ NAA/ABAD/ CR 3688/87 dated 6th April, 1987 were set aside and an amount of Rs.8,502.50 Ps. each be refunded to Shri Laxman Jagtap and to Shri Babu Sanduba Bhand, respectively. In view of this communication, the N.A. permissions at Exhibits-86 and 90 could not have been relied upon by the Reference Court, more so when the said N.A. permissions were cancelled before the award was passed on 24th March, 1988. The finding recorded by the Reference Court that the subject land was non-agriculture is, thus, unsustainable as it overlooked the fact that the illegal orders of N.A. permission, were subsequently cancelled by the Additional Collector.
17. The public notice issued by the Municipal Corporation, Aurangabad on 12th March, 1992 (Exhibit-35) had no relevance for deciding whether the subject land was within the municipal corporation area. This notice was applicable for the limited purpose for recovery of property tax for the year 1991-92 in respect of the residential tenements. When the subject land was acquired as on 21st December, 1988, even as per the claimants, it did not fall within the corporation limits of Aurangabad though the acquisition proceedings were initiated by following the provisions of MRTP Act read with the Land Acquisition Act. When the evidence on record so apparently proved that the subject lands were outside the corporation area, the finding recorded by the Reference Court, by relying upon the public notice dated 12th March, 1992, is far fetched and such a finding could be rightly called as perverse. Even as at present the entire land of village Satara is not under the Aurangabad Municipal Corporation limits, which fact has not been disputed, before us. The claimants reliance on the sale instance at Exhibit-81 and 82 also cannot be considered. Exhibit-81 is sale instance in respect of a plot admeasuring 3000 Sq.ft. from Gat No. 346 of village Satara. The sale consideration amount was Rs.32,000/and the sale deed is registered on 20th June, 1989. Similarly, the sale instance at Exhibit-82 pertained to a plot of land, admeasuring 2000 Sq.ft. from the very same gat No. 346. The sale consideration amount is Rs. 38,000/- and the sale deed is registered on 1st June, 1990. Such sale instance of small plot of land cannot be held to be a comparable sale instance.
18. The reliance of the claimants on the valuation certificate at Exhibits-25/1 and 26/1, in support of their claim for higher compensation, cannot be considered in view of the law laid down in the case of "U.P. Jal Nigam, Lucknow through its Chairman and another V/s Kalra Properties (P) Ltd., Lucknow and others" . The burden to prove such a claim fell entirely on them and it was required to be supported by comparable sale instances. We may, in this regard, usefully refer to the decision in the case of "State of U.P. and another V/s Rajendra Singh" .
19. The determination of market price is governed by the provisions of Section 23 of the Land Acquisition Act and the factors stated therein are required to be taken into consideration. At the same time, the developments that have taken place, when the reference was being decided, cannot be considered. The purpose for which the land was acquired cannot form a basis for determining the market price in view of the bar under section 24 (Fifthly) of the Land Acquisition Act. The Reference Court was required to decide the applications for higher compensation strictly within the ambit of sections 23 and 24 of the Land Acquisition Act and it did not have the power to innovate a reasonable method by taking into consideration the developments that were noticed on the date of inspection. The method invented by the Reference Court in determining the market price is not only speculative in nature but, in fact, it suffers from conjectures and surmises. It is evident that the Reference Court treated itself as a Writ Court. When the parties had placed on record evidence of comparative sale instances the Reference Court ought to have considered the said evidence and set out reasons for not considering the same. The methodology adopted by the Reference Court could not be sustained when the comparable sale instances were placed on record through the evidence of Land Acquisition Officer (DW1) as well as Shri Upadhye (DW2). If these sale instances could not be called as comparable sale instances, the Reference Court was required to record reasons therefor. In the evidence of Shri Upadhye (DW2) the sale instances at Exhibits-78 and 79 were relied upon and the Reference Court failed to give reasons why the same could not be treated as comparable sale instances, more so when they were in respect of the very same land in Gat No.122 purchased by PW2 and other claimants in L.A.R. Nos. 29 of 1989 and 31 of 1989. The appropriation method adopted by the Reference Court also does not have any supporting evidence and the Reference Court has only imagined the construction price as well as the land price. For all these reasons the market price at Rs.36/- per square foot, as arrived at in 1993 and reduced to Rs.20/- per square foot, as on 1st January, 1990, by the Reference Court, cannot be sustained and the same is hereby discarded.
20. The land under acquisition, and covered by the common award dated 14th December, 1988, admeasured 17 hectares 42 Ares and when such a large tract of land is acquired, the price for the same could not be fixed on the basis of sale instances pertaining to the small tracts of land even if it had urban potential. The Land Acquisition Officer had, therefore, rightly discarded the ten sale instances submitted before him by the claimants. In the map at Exhibit-47, submitted through his evidence along with the award, it has been clearly pointed out that the sale instances relied upon by the claimants were of the period much prior to the date of acquisition, they were in respect small tracts of lands located at a distance of more than 2 Kms. away. The claimants, while discharging their burden, had placed reliance on the sale instances from the land in Gat Nos. 40 and 41 of Satara village. These sale instances cannot be accepted as comparable sale instances for the reasons that the land covered under them is located at a distance of about 3 to 4 Kms. and the price determined was on the basis of a compromise, as arrived before the Reference Court in a pending reference. The work of the ring road was completed from either sides and only, at a particular spot (in Gat No. 40 and 41), the land acquisition was in dispute and the authorities were under tremendous pressure to complete the remaining patch in a time bound schedule. The Collector, therefore, decided to accept a compromise and pay the price of Rs.9.30 Ps. per square foot. This market price has not been accepted for any other land which was acquired for the ring road in 1978 and even the Reference Court has not followed the said price in respect of the other lands acquired for the ring road project. The sale instances could not be termed as a bonafide or normal transaction between a genuine buyer and seller.
21. The subject land was located outside the Municipal Corporation area, there was no development for residential buildings and it is located at a distance of 4 Kms. away from the main Jalna road as well as N-3 and N-4 sectors. PW1, in his own depositions, before the Reference Court stated, thus:
"My acquired land is about 4 Kms. to north of village Satara towards Corporation area" "On 3.1.1987 there was no development in my acquired plot. It is true that joint measurement was effected after fresh application of my land in 1987, June, 22. It is true that SLAO considered the sale instances of Mr. Borade and Mr. Baba Bhand while deciding the rate of compensation. It is true that the plots of Borade and Bhand stand situated adjacent to my survey number." The sale deed at Exhibit-27 was in respect of land admeasuring 18 Ares out of Gat No. 41 and the sale instance at Exhibit-28 was in respect of land admeasuring 20 Ares out of Gat No. 40 and both the sale instances were on account of the compromise deed (Exhibit-29 and 30) as arrived before the Reference Court. The other sale instances, submitted by the claimants before the Land Acquisition Officer, were placed on record through the evidence of DW2 and which could be shown in the chart below:
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Exhibit Survey/Gat Area Date Location No.
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59 45 600 Sq.ft. 06.07.1988 Garkheda
60 186/1 600 Sq.ft. 21.08.1987 Satara
61 120 1435 Sq.ft. 11.08.1986 Satara
62 90 600 Sq.ft. 18.01.1984 Satara
63 90 600 Sq.ft. Nil Satara
64. 125 3000 Sq.ft. 07.02.1989 Satara
65 125 3000 Sq.ft. 05.02.1987 Satara
66 125 3000 Sq.ft. 09.02.1987 Satara
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22.There are other sale instances on record which pertained to bigger plots of land and their comparable statement is, as under:
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Exh. Gat No. Area Price Date Location No. Acres-Gunthas
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67 124/1 02 - 00 Rs.10,000/- 22.05.1987 Satara (80 Ares)
68 124/1 02 - 06 Rs.32,000/- 04.06.1984 Satara (86 Ares)
69 124/1 02 - 06 Rs.32,000/- 05.06.1984 Satara (86 Ares)
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23. It was pointed out by CIDCO before the Reference Court that PW2 Baba Bhand, alongwith other claimants in L.A.R. No. 31 of 1989 and Shri Laxman Ganpatrao Jagtap, along with other claimants in L.A.R. No. 29 of 1989, had purchased the total land under acquisition from Gat No. 122 with equal share for a total of Rs.80,000/- vide sale deeds at Exhibit-78 and 79. Each of them got to their share land admeasuring 1 hectare 85 Ares and this share price was Rs.40,000/- as on 16th December, 1986 i.e. fifteen days prior to the date of notification under section 126 (4) of the MRTP Act. CIDCO, therefore, by relying upon the decision in Mangalas case (supra) had pleaded before the Reference Court, and with equal force before us, that the sale instances at Exhibits-78 and 79 were the most comparable sale instances for determination of the market value of the land in Gat No. 121 as well. The following observations of the Court in Mangalas case are relevant:
"It is settled by catena of decisions that the market value postulated in section 23(1) of the Act designed to award just and fair compensation for the lands acquired. The word "market value" would postulate price of the land prevailing on the date of the publication of the notification under section 4(1). This Court repeatedly laid the acid test that determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sail or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence."
[Emphasis provided]
24. More recently, in the case of "Ravinder Narain and another V/s Union of India" the issue of determination of market price fell for consideration before the Apex Court and the principles therefor were reiterated by referring to the earlier decisions in the case of "The Collector of Rakhimpur V/s Bhuban Chandra Dutta" , "Prathvi Raj Taneja (dead) by L.Rs. V/s State of Madhya Pradesh and another" and "Smt. Kausalya Devi Bogra and others etc. V/s Land Acquisition Officer, Aurangabad" to confirm the proposition that where a large area of the land is the subject matter of acquisition, the rate at which small plots are sold cannot be sought to be a safe criteria. In para 7 of the said judgment, the Court noted even the exceptional circumstances, as under: "It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating Court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions/ adjustments have to be made while determining the prices."
25. From the map at Exhibit-47 it is clear that the land in Gat No. 121 is bounded towards the south by the railway line and towards the north by the land in Gat Nos. 54, 53 and 50 and towards its eastern side the land in Gat Nos. 124, 125 and 126 is located. The sale instances at Exhibit-67, 68 and 69 pertained to the land located in Gat No. 124 and in each sale instances the land covered was 2 Acres plus. The transaction in Exhibits-68 and 69 was registered on 4th/ 5th June, 1984 whereas the transaction in Exhibit-67 has been registered on 22nd May, 1987 i.e. about four months later from the date of publication of the notification under section 126 (4) of the MRTP Act in respect of the subject land. In addition to the sale instances at Exhibits-78 and 79, these three sale instances at Exhibit-67 to 69 were comparable sale instances and more particularly the sale instance at Exhibit-67. It is, thus, clear that though the claimants failed to discharge their burden for bringing on record the comparable sale instances, the acquiring bodies had certainly placed on record these sale instances at Exhibits-67 to 69 and 78 and 79 as comparable sale instances in respect of the land located in Gat Nos. 124 and 122 and that too pertaining to the period very close to the date of notification under section 126 (4) of the MRTP Act. In the case of Ravinder Narain (supra), by referring to the earlier decision in the case of "The Special Land Acquisition Officer, Bangalore V/s T. Adinarayan Setty" the Supreme Court observed in para No. 9, as under, regarding the comparable sale instances:
"9. It can be broadly stated that the element of speculation is reduced to minimum if the underlying principles of fixation of market value with reference to comparable sales are made:
(i) when sale is within a reasonable time of the date of notification under section 4(1);
(ii) it should be a bonafide transaction;
(iii) it should be of the land acquired or of the land adjacent to the land acquired; and
(iv) it should possess similar advantages.
The ratio so laid down is squarely applicable to the sale instances at Exhibits 67, 78 and 79. It was faintly tried to suggest by PW2, in his evidence before the Reference Court, that though the sale deeds at Exhibits-78 and 79 were signed in December, 1986 the transaction was finalised in the year 1983-84 itself and, therefore, the price stated therein could not be relied upon for fixing the market value of the subject land. By reading the said documents it is nowhere reflected that the same transaction was finalised in 1983-84 or there was any agreement for sale entered into between the parties. This oral statement is nothing short of a cover-up and was made by way of an afterthought to support the claim.
26. The subject land was under reservation right from the beginning of 1973 and this reservation certainly put restrictions on its marketability. When the total acquisition was over 17 hectares the market value cannot be determined on per square foot or per square meter basis. In the case of "Smt. Kamalabai Jageshwar Joshi and others V/s State of Maharashtra and others" , 62.5 Acres land was acquired for the extension of the south-eastern railway station. The award passed by the Land Acquisition Officer granted compensation at the rate of Rs.250/- per Acre and the Reference Court enhanced the compensation to Rs.2000 per Acre. On further appeal a Division Bench of this Court enhanced the compensation to Rs.7,000/- per Acre. Dissatisfied with the enhancement the claimants had approached the Apex Court and claimed compensation at the rate of Rs.4/- per square yard. While turning down the claim for enhancement it was held that enhancement could not be granted on the basis of sale deeds relating to small extent of agricultural lands purchased on square foot basis and such sale instances would offer no reasonable basis to further increase the compensation. Similar view was reiterated in the case of "Pitambar Hemlal Badgujar (dead) by L.Rs. and others V/s Sub-Divisional Officer, Dhule and another" .
27. In the case of "Hasanali Khanbhai & Sons and others V/s State of Gujarat" , while dealing with the principles to be kept in mind for determining the valuation of land acquired for public purposes the Apex Court stated thus:
"3. ... ... The court should eschew aside feats of imagination but occupy the armchair of a prudent, willing but not too anxious, purchaser and always ask the question as to what are the prevailing conditions and whether a willing purchaser would as a prudent man in the normal market conditions offer to purchase the acquired land at the rates mentioned in the sale deeds. After due evaluation taking all relevant and germane facts into consideration, the Court must answer as to what would be the just and fair market value. ... ..."
27A. It is also pertinent to keep in mind that the claimants were not the agriculturists who had lost the only source of income. They were the speculators, who purchased the subject land after it was reserved in the development plan way back in 1973. By their acts, they have demonstrated that they wanted to make money by selling small size plots which could have been permissible only if the land was released from the reservation. When the notification was issued under section 126 (4) of the MRTP Act, it was a fallow land and it was not generating any income. Its reservation for the development plan had also clamped restrictions on its marketability as well as market price.
28. The Land Acquisition Officer, in his award (Exhibit-46), has considered the submissions made by all the claimants in Gat Nos. 121 and 122 as well as the contentions of CIDCO and examined the sale instances relied upon. He noticed that the land in Gat Nos. 66 and 14 of Satara village, Survey No. 8/1 and 12 of village Shahanurwadi and Survey No. 19/3, 15/2 and 19/2 was located far away from the subject land and the sale instances pertained to the year 1983-84. On the other hand, the sale instances of the land in Gat No. 130, admeasuring 98 Ares (2 Acres and 18 Gunthas) was sold for Rs.45,000/- on 9th December, 1986; thus, indicating the sale value at Rs.45,918/- per hectare. This land is situated about 1 Km. away towards the southern side of the railway line. He further noticed that land in Survey No. 51/1 of village Garkheda was purchased by Jai Durge Housing Society on 6th April, 1984 at the rate of Rs.1,00,000/- per hectare and the land covered in the sale instance was 1 Acre and it is located at a distance of more than 3/4th of Km. He considered these two as comparable sale instances and the date of notification being 1st January, 1987 thought it fit to determine the market value of the subject land at Rs. 1,20,000/- per hectare. If this determination is compared with the sale instance at Exhibits-67, 78 and 79, one would reasonably hold that the Land Acquisition Officer had granted excess compensation but the scheme of section 25 of the Land Acquisition Act does not permit the Reference Court or the Court of Appeal to grant compensation amount less than awarded by the Land Acquisition Officer. The parameters and obtaining circumstances considered by the Land Acquisition Officer are in keeping with the scheme of section 23 of the Land Acquisition Act and the compensation rate determined at Rs.1,20,000/- per hectare cannot be said to be undervalued though, (by taking into consideration the principle that the best comparable sale instance could be in respect of the same land by the very same claimants), the market value could have been determined at less rate than awarded by the Land Acquisition Officer. Thus, the claim for higher compensation, beyond the rate granted by the Land Acquisition Officer and on the basis of per square foot/ square meter could not have been entertained by the Reference Court. The award passed by the Reference Court fails on all counts and it deserves to be quashed and set aside by confirming the compensation amount granted by the Land Acquisition Officer.
29. We, therefore, allow the appeals filed by the State being First Appeal Nos. 347 of 1993, 348 of 1993, 349 of 1993, 350 of 1993, 351 of 1993 and 352 of 1993 and dismiss the First Appeal Nos. 450 of 1994, 762 of 1997, 364 of 1998 and 96 of 2003. The impugned award dated 6th April, 1993 is hereby quashed and set aside and the compensation granted by the Land Acquisition Officer at the rate of Rs.1,20,000/- per hectare vide his award dated 14th December, 1988 is hereby confirmed. Costs in cause.
