The State Of Maharashtra Through ... vs Gangadhar S/O Girmalappa Utge ...
2003 Latest Caselaw 937 Bom

JUDGMENT

A.B. Naik, J.

1. These four appeals - two by the claimants and two by the State of Maharashtra, challenging the common judgment and award passed by the learned Civil Judge, Senior Division, Latur in Land Acquisition Reference No. 176 and 177 both of 1986. The Land Acquisition Reference No: 176/ 1986 is filed by Shri Gangadhar Girmalappa Utge, the owner of the land Survey No.1, at Ausa proper, and Land Acquisition Reference No. 177/1986 by Shri Sidramappa Shankarappa Mitkari, the owner of the land Survey No: 188 situated at Ausa. Both the lands to the extent of 2H each, were acquired by the State, for construction of huts for dis-housed persons, by issuing a notification under section 4 of the Land Acquisition Act ( hereinafter referred to as " the Act"), on 11th March, 1980. After issuance of preliminary notification under section 4, declaration under section 6 was made on 25th September, 1980. The award came to be declared by the Special Land Acquisition Officer, Latur on 17th March 1982 awarding a sum of Rs. 43,500/-. The award was made was in respect of four different pieces of lands belonging to three different owners. The lands mentioned in the award are Survey Nos.1, 3/1, 3/2 and 188 .Survey No: 1 to the extent of 2 H ; Survey No.3/1 to the extent of 45 R, Survey No. 3/2 to the extent of 1 H 55R and Survey No.188 to the extent of 2H, making total 6H of lands were the subject-matter of the above-said award. ( The parties to these appeal) will be referred to as the " claimants" and "State" respectively).

2. The claimants not being satisfied with the a award amount, sought a reference under section 18 of the Act. The LAO on receipt of the application for reference, referred the matter to the Civil Court for determination of market value. Both the claimants raised identical pleas. The claimants in Land Acquisition Reference No: 176 /1986 contended that the Land survey No.1 admeasuring 19A 22 G situated at Ausa, came to be acquired for construction of huts, by issuing notification on 11th March, 1980. He stated that the possession was taken over from the claimants by the acquiring body some time in the year 1980. It is contended that the lands under acquisition are adjacent to Ausa city and situated towards North-south of the Ausa city, Kumarswamy Vidyalaya, Zilla Parishad Girls Schools, ST stand, are situated towards the south side of acquired land. It is stated that the west side of the acquired land is well-developed area. It is contended that the lands under acquisition are surrounded by Bazar and other markets. Ausa being Taluqa place, is a fast-growing town, having two Highways passing from the boundaries of the city. It is stated that the Government of Maharashtra prepared plan under the provisions of Maharashtra Regional and Town Planning Act and the entire land was reserved in the said plan for purpose of housing etc. The claimants stated that they have an intention to convert the land into non-agricultural use, but permission has not been accorded by the Competent Authority, on the ground that the lands have been reserved in the Plan. It is stated that the lands under acquisition have a non-agricultural potentiality and the LAO, without considering this aspect,has awarded compensation holding the same as an agricultural land. In fact, the claimants have claimed compensation on non-agricultural basis,that too on square foot basis. The claimants contended that the minimum rate prevailing on the date of notification was Rs. 5 per sq.foot and, accordingly, the claimants contended that they are entitled for compensation on sq.ft.basis. The claimants contended that 2 H (5A) land, if divided into square foot, it will come to 2,17,800 sq.ft. and deducting 1/3rd area for the purpose of development, the total land being utilization and available will be 1,52,400 sq.ft. The claimants, thus, claimed compensation at the rate of Rs. 5 per sq.ft. and claimed for total compensation of Rs. 7,62,000/-. As the LAO has awarded 16,675/-, they claimed, it is too inadequate and does not reflect the true and correct market value of the lands. It is stated contended that the claimants have withdrawn the amount so awarded by the LAO under protest and it is stated that the claimants are entitled for total amount of compensation of Rs. 7,45,625/-.

3. Sidramappa Mitkari, the claimant in Reference No: 177/1986 has filed the Claim Petition on the same averments, as made by his companion Shri Gangadhar Girdharappa Utge. He also claimed the same amount of compensation, as claimed by Shri Utge.

4. Both Claim Petitions were filed on 6th May 1982, before the learned Civil Judge, Senior Division, Latur.

5. The State of Maharashtra, the respondent, by filing say at Exh.7,contested the claim by accepting ownership of the lands, the area of the land acquired. But, denied that possession was taken in the year 1980, as contended by the claimants. It is stated that there is no development on the western side of the acquired lands. It is stated that all the Government and semi-Government Offices are situated far away from the acquired lands. The State denied the other contentions raised by the claimants. It is specifically contended that all the Offices mentioned by the claimants, are not in the vicinity of the acquired lands. It is contended that the LAO has taken into consideration all aspects and determined the market value which was quite proper, reasonable and reflect the true market value as prevailing on the date of notification. It is contended that on the date of notification, the lands were being used for agricultural purpose. It is stated that the LAO has taken into consideration the surrounding of the acquired lands and proper compensation was awarded. It is contended that the claimants are still using the un-acquired portion of the lands for agricultural purpose. It is denied that the acquired lands were having non-agricultural potentiality, as contended by the claimants. The State denied that the land was any time reserved under the Plan. It is contended that the claimants are not entitled for enhancement of the compensation. With these averments the State prayed for rejection of claims.

6. In support of the claim, the claimants have examined in all five witnesses. Both claimants namely, Gangadhar Utge and Sidramappa Mitkari stepped into the witness box. They have also examined three attesting witnesses of the sale deeds, which they have produced. The claimants, in addition to the sale deeds ( Exhs. 26, 28 and 34), have also produced on record, the extract of Development Plan at Exh. 32. The application filed by the claimants for withdrawal of the amount under protest. They also filed the details of Survey No. 1 on Development Plan at Ausa. The claimants also produced the Panchnama of taking possession of the land at Exh. 20, certificate from Administrator, Municipal Council, Ausa, certifying that the lands are reserved under the Plan. Further the claimants have produced a communication from the Town Planner, Osmanabad, addressed to the Chief Officer, Municipal Council, Ausa, regarding the approximate market value of the lands. It is stated in that certificate, the approximate market value of the land will be Rs. 20 per sq.metre. The claimants also produced on record, the judgment delivered by the learned Civil Judge, Sr.Dn. Latur in LAR No: 27/1984 which pertains to Land Survey No.3/1 & 3/2 which were acquired for the same purpose, and that too by the same notification and also by the same award passed by the LAO. This Claim Petition was decided earlier i.e. on 12.8.1988 by the same learned Judge who decided the present references under appeal. The claimants, relied on this judgment whereby the learned Civil Judge has determined the market value of Survey No.3/1 and 3/2 at the rate of Rs. 2 per sq.ft.

7. On the basis of the pleadings, the learned Civil Judge has framed issues and considering the evidence that is produced by the claimants, he came to be conclusion that the market value of the acquired land on the date of acquisition was Rs. 4 per sq.ft. and, accordingly, by the judgment and order dated 15.12.1988, allowed the claim and granted compensation of the land at Rs. 4 per sq.ft. In addition he has granted 30 per cent solatium, 15% interest on enhanced compensation from the date of award till the realisation. He further granted 12 per cent increase under section 23(1A) of the Act. The learned Civil Judge further granted 8 Per cent rental compensation on the total market value from the date of notification till realisation of the amount.

8. Feeling aggrieved by the said judgment and award passed by the learned Civil Judge S.D. Latur, the claimants as well as the State of Maharashtra approached this Court by filing appeals. First Appeal No: 62 and 62 both of 1990 are filed by the claimants; whereas First Appeal No: 462 and 462 of 1993 are filed by the State.

9. I heard all the four appeals together and I propose to dispose of the same by this judgment, which will govern all four appeals.

10. Shri Mahesh Patil, learned Advocate instructed by Shri U K Patil, for the claimants contended before me that the learned Civil Judge has accepted the claim of the claimants that the lands under acquisition having non-agricultural potentiality and should have granted compensation at the rate of Rs. 5 sq.ft., instead of 4 sq.ft. The learned Advocate submitted that the lands under acquisition are situated in developed area or nearer to it. The land surrounded by several Government Offices and other commercial establishments and almost entire land is being used for non-agricultural use. The learned Advocate submitted in past some portion of the lands was acquired by the government for construction of offices. That shows that the land is situated in a prima locality of Ausa. he further submitted that the land having nonagricultural potentiality has been amply proved and, therefore, there was no justification whatsoever for the learned Civil Judge to restrict the market value at Rs. 4 per sq.ft. when the claimants have amply demonstrated that the prevalent market value on the date of acquisition was Rs. 5 or more per sq.ft. In fact, in the trial Court an attempt was made by filing an application for amendment of the Claim Petition seeking compensation at Rs. 10 per sq.ft. though it was rejected by the learned Civil Judge. It is submitted that this shows that the claimants have restricted their claim to Rs. 5/-, which is approximately half the rate than the prevailing market value. Therefore, it is contended that the learned Civil Judge should have granted compensation at Rs. 5 per sq.ft. He submitted that three sale instances which are produced on record and proved by examining the attesting witnesses to show that the prevailing market rate of the land having non-agricultural potentiality was much more than what is claimed by the claimants. Therefore, he submitted that having accepted the claim made by the claimants about non-agricultural potentiality, the learned Judge should have allowed the claim in toto. He further submitted that the lands are situated in such an important place, in fact, there was no necessity to deduct 1/3rd are from the total lands. The learned Judge has not also taken into consideration the rising prices of the land. He , therefore, submitted that the claimants have amply proved before the trial Court and before this court also that they are entitled for the compensation at the rate of Rs. 5 per sq.ft., though not more. The learned Advocate in support of his submissions, has relied on the following judgments of the Apex Court and this Court. The judgments so relied on, are : 1) ; Krishi Utpadan Mandi Samiti vs. K N Munshi and another 2) ; Ravinder Narain and another v. Union of India 3) ; Krishi Utpadan Mandi Samiti vs. Malik Sartaj Wali Khan and another 4) Thkarsibhai Devjibhai vs. Executive Engineer 5) JT 2001 Supp (1) SC 585 6) Judgment of this Court Osman Khan s/o Abdul Majid Khan and another v. State of Maharashtra .

11. Shri N B Khandare, learned AGP not only opposed the contentions of the learned Advocate for the claimants, but also challenged the merit of the judgment, as State has filed independent appeals, challenging the determination of market value as determined by the learned trial Judge. I will record his submissions, which are also for the challenge to the validity of the order and reply to the contentions of the learned Advocate for the claimants.

12. Shri Khandare, submitted that the LAO while passing the award has determined the compensation considering the land as agricultural lands, as on the date of notification the lands were used for agricultural purpose and actually they were under cultivation of the claimants. He submitted that the award passed by the LAO by considering the lands as agricultural lands, hence the learned Civil Judge should not have considered the claim of the claimants for compensation on the basis of non-agricultural and should not have awarded compensation on square foot basis. He submitted that on the date of notification and thereafter, part of the lands were, in fact, was used as agricultural land. Even after acquisition, the remaining land of the claimants is under cultivation. This aspect has not been considered by the learned Civil Judge. He submitted non-agricultural potentiality has to be established by the claimants by leading evidence to that effect. He submitted that the nature of the land at the time of acquisition is to be considered in determining and awarding compensation and the future use of land cannot be taken into consideration in determining the compensation. Basically, all lands are agricultural lands. Mere statement of the claimants that they were intended to covert the land into non-agricultural use, cannot be considered while awarding the compensation. He submitted that the learned Civil Judge was not called upon to decide the market value of the land on non-agricultural basis as the LAO assessed the said lands as agricultural lands, as the lands which were acquired on the date of notification and even at the time of taking possession the land, as a matter of fact, were under cultivation and being used for agricultural purpose. This aspect, it appears, is not taken taken into consideration by the learned Civil Judge. He further submitted that the claimants on whom burden lies to prove that the award passed by the LAO does not reflect true and correct market value of the agricultural lands, have failed to discharge the burden. Shri Khandare submitted that if the award passed by the LAO is considered, then it will reveal that the LAO has taken into account the sale instances of agricultural lands and the claimants have not produced any evidence before the LAO to demonstrate that on the date of notification the lands are being utilized for non-agricultural purpose and lands in vicinity were being sold on square foot basis. As the claimants were contending that the lands are non-agricultural lands, then they must prove it. He submitted that under the provisions of the Maharashtra Land Revenue Code, 1966, unless permission to convert an agricultural land into non-agricultural land is accorded by the Competent Revenue Authority, the lands cannot be considered as non-agricultural and cannot be used for any non-agricltural purpose. He submitted that on oral statement of the claimants that they had applied for conversion of the land into non-agricultural, cannot be relied as no documentary proof is produced by them before the reference Court. The purpose for acquisition may be indicative of the fact that the lands under acquisition have non-agricultural potentiality. But on this fact alone, the Court cannot come to the conclusion in awarding compensation on sq.ft. basis. He submitted that the three sale instances which are brought on record by the claimants pertain to small pieces of plots which cannot be a guiding factor to determine the market value. He submitted that where a large area is subject-matter of acquisition the price at which small plots are sold cannot be said to be a safe criteria. He submitted that all the three sale instances are not of the plots which are in the vicinity of the acquired lands or part of acquired land. He submitted that all the three plots are situated in the city having separate municipal numbers that indicates those plots were within the municipal area and assessed by the Municipal Council for taxes. He, therefore, submitted that the claimants have failed to establish that they are entitled for compensation on the basis of non-agricultural potentiality. He submitted that heavy burden lies on the claimants to establish the inadequacy of the compensation awarded by the LAO. The three sale instances, in fact, are not helpful to the claimants to justify their demand nor they reflect the true and correct market value of the lands. He submitted that all these three sale instances got proved by the claimants by examining attesting witnesses; however, neither vendor nor vendee was examined by the claimants. In such a situation, it cannot be accepted a safe guide to accept the sale deeds as it is, because, it is not brought on record under what the circumstances the sale deeds were executed, whether the sale deeds are executed by a willing seller and purchased by willing purchaser. Shri Khandare, pointed out from the evidence that one of the vendees has purchased open plot which was adjacent to his own house and more probably some more price might have been paid by the vendee who purchased the plot. He, therefore, submitted that this circumstance makes that sale instance inapplicable for comparison. He submitted that the claimants have not produced any evidence to show that the plots which were sold has similar advantages, availability of the amenities etc.in relation to the acquired land and in absence of all such evidence he submitted that the claimants are not entitled for enhanced compensation from the Civil Court.He submitted the sale deeds which are produced are not adjacent to or in the vicinity of the acquired lands. The plots were admittedly situated in the residential locality and away from the acquired lands. The evidence shows that the said plots were having municipal numbers and they can be utilized for construction of houses etc. immediately. He submitted that the claimants though accepted that some portion of their own land was acquired previously by the Government, but they have not produced any evidence about that acquisition.

13. The learned AGP when confronted with the judgment in LAR No: 27/1984 at Exh.24 wherein land Survey No.3/1 and 3/2 was acquired for the same purpose for which the present lands under appeal, are acquired and a common award was passed in respect of all three lands by the LAO and the claimant i.e. owner of Survey No. 3/1 and 3/2 sought a reference under section 18 of the Act and, on reference, the learned Civil Judge, Senior Division has determined the compensation at the rate of Rs. 2 per sq.ft. The learned AGP was not able to make any submission regarding this judgment produced on record by the claimants. I enquired from the learned AGP whether the State has challenged the judgment at Exh. 24, by filing an appeal, to which the learned AGP has no satisfactory answer and he could not make any positive statement in that behalf. Be that as it may. He submitted that the judgment is brought on record by the claimants and the lands covered by Exh. 24 is part and parcel of the same notification and the award. The learned Civil Judge who decided the claim has granted Rs. 2 pr sq.ft. Incidentally, the learned Civil Judg Sr.Dn.Latur ( Shri B T Narvade) who has decided the LAR No: 27/1984 has also decided the references which are subject -matter of the appeals before me. (Exh. 24) was decided on 12th August,1988 and the present references were decided on 15.12. 1988 i.e.within four months. But the learned Judge while deciding the Reference Nos. 176 and 177 has not at all referred to the judgment delivered by him on 12.8.1988 in LAR No: 27/1984. The certified copy of the said judgment was produced by the claimants themselves. Therefore, Shri Khandare, submitted that granting compensation at the rate of Rs. 4 per sq.ft. to the present claimants was uncalled for, as the claimants have produced on record the judgment of the learned Judge, he should have considered it as a piece of evidence. Though the learned AGP contended that that judgment also cannot be utilised in this appeals as both the lands were agricultural lands on the date of notification and the same should have been considered while awarding the compensation. As the State has accepted the award passed in LAR No: 27/1984 and has not challenged the award, I will have to consider the evidentiary value of the said judgment as, in my opinion, the said judgment is relevant for determining the market value of the lands as, admittedly, all the three lands were subject-matter of same notification, same award, but the references were decided separately within a period of about 4 months. This position is accepted. The reference of the judgment, I will consider at proper stage.

14. The learned AGP further submitted that the claimants are not at all entitled for the benefit of Section 23(1A) of the Act as amended in 1984 as the notification and the award was issued and passed prior to the commencement of amended Land Acquisition Act. The learned AGP submitted that the claimants are not at all entitled to 12% increase on the total market value from the date of notification till the date of the award. He submitted that this part of the order will have to be set aside by applying the law laid down by the Apex Court in K.S. Paripoornan vs. State of Kerala; . Shri Khandare learned AGP has placed reliance on the following judgments of the Apex Court : 1) Kamlabai Jageshwar Joshi vs. State of Maharashtra State of Punjab vs. Jagirsingh. 3) Special land Acquisition Officer, Dharvad vs. Tazer Hanifbee. 4) Krishi Utpadan Mandi Samiti vs. Malik Sartaj Khan . 5) Kasturi and others vs. State of Haryana .

15. He submitted that on the totality of the circumstances and the evidence brought on record by the claimants, the claimants fail to establish that they are entitled to the compensation at Rs. 5/- per sq.ft.

16. In reply to the submissions made by the learned AGP, the learned Advocate for the claimants contended that the rate fixed for small plots in the same vicinity can be a basis for fixation of rate for large area acquired. He submitted there is no absolute prohibition for doing so. He submitted, in such cases, the Court has to take into consideration the well-established parameters, such as: 1) Whether the sale is within reasonable time of the date of notification u/s 4 of the Act. 2) It should be bona fide transaction; 3) It should be of the ;land acquired or of the land adjacent to the land acquired (underline is mine); 4) It should have similar advantages.

17. For this purpose, he relied on the judgment of the Apex Court in Ravinder Narain vs. Union of India and Krishi Utapadan Mandi Samiti vs. K N Munshi and Thakarsibhai Deojibhai and others vs. Executive Engineer Gujarat and others .

18. On the basis of the above-said contentions, two points arise for my consideration ; (i) whether the claimants establish that the market value of the acquired land on the date of notification was Rs. 5/per sq.ft. and; (ii) whether the claimants are entitled for the benefit of Section 23(1A) of the Act.

19. Before discussing and analysing the evidence on record, I will take up the second point first as in the admitted facts, it can be disposed of at the threshold itself. Section 4 notification was issued on 11th March, 1980 and the award came to be passed on 17th March, 1982. The bill to amend the Land Acquisition Act was introduced in the House of the People on 30th April,1982 and the Land Acquisition Amendment Act, 68 of 1984 came into force from 26th September, 1984. Section 23(1A) reads thus: 23(1A): In addition to the market value of the land, as above provided, the court shall in every case award an amount calculated at the rate of twelve percentum pr annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier."

20. The question whether the claimants whose lands were acquired prior to the commencement of the Land Acquisition Amendment Act, 64 of 1984 fell for consideration before the Apex Court and the Constitution Bench of the Apex Court in KS Paripoornans ( supra) case, while interpreting Section 30 of the Act of 64 of 1984 i.e transitional provision ruled that the proceedings which commenced prior to 30th April,1982 and the award is not made by the Collector in those proceedings before 30th April,1982 the provisions of Section 23(1A) even though reference is pending in the Civil Court. From the undisputed dates in the present proceedings, the petitioners case fell outside the scope of Section 23(1A) as interpreted by the Apex Court. Therefore, in my judgment, the learned Civil Judge has fell into an error in awarding 12 % increase from the date of notification to the date of the order. In my judgment, therefore, the same cannot be upheld. Paripoornans case (supra), is applicable to the case at hand and applying the law as it is the contention of the learned Assistant Government Pleader is to be upheld. The Apex Court held thus:

"74. If subsection (1-A) of Section 23 is construed in the light of the provisions contained in sub-section (1) of Section 30 of the amending Act there is no escape from the conclusion that Section 23(1A), by itself, has no application to proceedings which had commenced prior to the enactment of the amending Act and the applicability of the said provision to pending proceedings is governed exclusively by sub-section (1) of Section 30 of the amending Act. A perusal of sub-section (1) of Section 30 of the amending Act shows that it divides the proceedings for acquisition of land which had commenced prior to the date of the commencement of the amending Act into two categories, proceedings which had commenced prior to 30-4-1982 and proceedings which had commenced after 30-4-1982. While clause (a) of Section 30(1) deals with proceedings which had commenced prior to 30-4-1982, clause (b) deals with proceedings which commenced after 30-4-1982. By virtue of clause (a), Section 23(1A) has been made applicable to proceedings which had commenced prior to 30-41982 if no award had been made by the Collector in those proceedings before 30-4-1982. It covers (1) proceedings which were pending before the Collector on 30-4-1982 wherein award was made after 30-4-1982 but before the date of the commencement of the amending Act, and (ii) such proceedings wherein award was made by the Collector after the date of the commencement of the amending Act. Similarly Section 30(1)(b) covers (i) proceedings which had commenced after 30-4-1982 wherein award was made prior to the commencement of the amending Act, and (ii) such proceedings wherein award was made after the commencement of the amending Act. It would thus appear that both the clauses (a) and (b) of subsection (1) of Section 30 cover proceedings for acquisition which were pending on the date of the commencement of the amending Act and to which the provisions of Section 23(1A) have been made applicable by virtue of Section 30(1). If Section 23(1A), independently of Section 30(1), is applicable to all proceedings which were pending on the date of the commencement of the amending Act, clauses (a) and (b) of Section 30(1) would have been confined to proceedings which had commenced prior to the commencement of the amending Act and had concluded before such commencement because by virtue of Section 15 the provisions of Section 23(1A) would have been applicable to proceedings pending before the Collector on the date of commencement of the amending Act. There was no need to so phrase Section 30(1) as to apply the provisions of Section 23(1A) to proceedings which were pending before the Collector on the date of the commencement of the amending Act. This only indicates that but for the provisions contained in Section 30(1) Section 23(1A) would not have been applicable to proceedings pending before the Collector on the date of commencement of the amending Act.

75. Merely because sub-section (1) of Section 30 only refers to award made by the Collector while sub-section (2) of Section 30 also refers to an award made by the Court as well as the order passed by the High Court or the Supreme Court in appeal against such award does not mean that Section 23(1A) was intended to have application to all proceedings which were pending before the civil Court on the date of the commencement of the amending Act. The difference in the phraseology in sub-sections (1) and (2) of Section 30 only indicates the limited nature of the retrospectivity that has been given to provisions contained in Section 23(1A) under Section 30(1) as compared to that given to the provisions of Sections 23(2) and 28 under Section 30(2). The limited scope of the retrospectivity that has been conferred in respect of Section 23(1A) under sub-section (1) of Section 30 does not lend support to the contention that the scope of such retrospectivity should be enlarged by reading such further retrospectivity into the provisions of Section 23(1A). For the reasons aforementioned we are of the view that in relation to proceedings which were initiated prior to the date of the commencement of the amending Act Section 23(1-A) would be applicable only to those cases which fall within the ambit of clauses (a) and (b) of subsection (1) of Section 30 of the amending Act. In this context it is also necessary to bear in mind the rule of statutory construction that even where a statute is clearly intended to be to some extent retrospective, it is not to be construed as having a greater retrospective effect than its language renders necessary. (See Halsburys Laws of England, 4th Edn., Vol. 44, para 924.) There is, therefore, no scope for extending the ambit of retrospective operation of subsection (1-A) of Section 23 beyond the limits specified in Section 30(1) of the amending Act so as to apply it to all proceedings initiated prior to the date of coming into force of the amending Act which were pending before the civil Court on reference under Section 18 of the principal Act irrespective of the date on which the award was made by the Collector. For the reasons aforementioned we are unable to subscribe to the view taken in Zora Singh that sub-section (1-A) of Section 23 would apply to all proceedings pending in the reference Court on the date of commencement of the amending Act irrespective of the date on which award was made by the Collector. In our opinion, the provisions of Section 23(1A) of the principal Act and Section 30(1) of the amending Act have been correctly construed in Filip Tiago to mean that the obligation to pay additional amount in respect of proceedings initiated before the date of commencement of the amending Act is confined to the matters covered by clauses (a) and (b) of sub-section (1) of Section 30 of the amending Act and we endorse the said view.

80. For the reasons aforementioned it must be concluded that in respect of acquisition proceedings initiated prior to date of commencement of the amending Act the payment of the additional amount payable under Section 23(1-A) of the Act will be restricted to matters referred to in clauses (a) and (b) of sub-section (1) of Section 30 of the amending Act. (bold is mine) Zora Singh insofar as it holds that the said amount is payable in all cases where the reference was pending before the reference Court on 24-9-1984, irrespective of the date on which the award was made by the Collector, does not lay down the correct law."

21. Accordingly I set aside that part of the order of the learned Civil Judge Sr.Dn. where he has granted 12 % increase on the total market value from the date of notification till date of the award.

22. Coming to the first point for that purpose I will have to consider the evidence produced by the claimants. Both the claimants stepped into the witness box to substantiate their claim. Claimant -Sidramappa Mitkari has been examined as witness No.1, for the claimant ;and claimant Gangadhar Utge examined as witness No.5. Other three witnesses are attesting witnesses to the three sale instances. The sale deeds which are produced on record and has been proved by the attesting witnesses are Exhs. 26,28 and 34. On the basis of these three sale deeds, the claimants want that their lands should be assessed for compensation on non-agricultural basis and they should be awarded compensation as such, as per the value of the lands/ plots covered by the sale instances. The claimants also filed judgment of the learned Civil Judge Sr.Dn. in LAR No: 27/1984 to which I have made a reference in earlier part of the judgment. Apart from these documents to establish market value, the claimants also brought on record, the copy of the award dated 17th March 1982 which is at Exh.13;7/12 extract of the acquired land which are Exh.15 and 16 respectively. The extract of the town plan as Exh. 31 and 32 and 37. Besides these, the claimants have also brought on record certain correspondence / certificate issued by the Town Planner ,Osmanabad and the Chief Officer, Municipal Council, Ausa; and the Panchanama of taking possession of the land dated 6th May 1981. The documents such as, Panchnama and the correspondence and the certificate issued by the Municipal council, are not at all relevant to determine the market value of the acquired land. Hence I discard those documents from my consideration. It is not out of place to mention that the State has not led any evidence nor produced any documents in its support.

23. The claimants have relied, for determination of compensation on comparable sale method. The reference Court and for that matter, the High Court in appeal has to bear in mind the following four aspects: 1) Whether the sale is within reasonable time of the date of notification u/s 4(1)(2) It should be bona fide transaction. 3) It should be of the land acquired or of the adjacent to the land acquired 4) It should possess similar advantages.

24. It is only when these factors are present, it can merit consideration as comparable one. So far as the first two categories are concerned, I will find out whether the three sale instances qualify these requirement. The first sale deed which is relied on by the claimants is Exh.26 ; the sale deed dated 23rd March, 1978- One Shakuntalabai Karbhari purchased a plot of land 33 x 33 ft. for consideration of Rs. 3,000/- ( approximately Rs. 2.75 per sq.ft.). The sale deed describes the boundaries and the situation. The second sale deed is at Exh.28 one Bhalchandra Digambar Kale by sale deed dated 13.12.1980 purchased a plot of land admeasuring 60 x 60 for a consideration of Rs. 10,000/- ( approximately Rs. 2.77 per sq.ft.) and the last sale deed is Exh.34 -Tulsidas Chavan has purchased a plot of 25 x 25, on 2nd December, 1978 for consideration of Rs. 1500/(approximately Rs. 2 per sq.ft.). As stated above, all these sale deeds are proved by the claimants by examining attesting witnesses. All the sale deeds complies condition Nos. 1 and 2 noted above. From the description of the property mentioned in the sale deed it is clear that the plots sold are not situated near or in the vicinity of the acquired lands nor it is from the same acquired land. I will have to refer to the description of the property sold vide these two sale deeds. Exh. 26 is dated 23rd March 1978. The sale deed is of Plot having area of 1089 sq.ft. ( 33 x 33). The situation of the plot has been mentioned in the sale deed which reads ; On East :House of Govinrao Sardeshmukh ; On west, Government open land; on South, Government road and; North ; Government road and nali. Out of consideration of Rs. 3000/-, Rs 351/- were paid by the vendee to the vendor before executing the sale deed and the balance consideration of Rs. 2649 was to be paid before the Sub-Registrar. As the claimants have not examined the vendor and the vendee, therefore, the contents of the documents are not proved. The execution is proved by examining the attesting witness. The content of the sale deed says that the vendor was in need of money for education and accordingly, the said plot is sold. From the record, the price which can be accepted will be only Rs. 2649 as the claimants have not examined any witness to show whether Rs. 351 were paid to the owner or not. The approximate rate comes to roundabout 2 per sq.ft. But this sale deed cannot be made applicable because from the description mentioned in the document the plot is subjected to municipal taxation. The Municipal Council has given Revision Register No. 2323 and this plot had advantage of two roads- on South and North side and open Government place on the west.

25. Then comes Exh. 34 i.e. sale deed dated 2nd of December 1978 whereby one Tulsidas Rangnath Chavan , has purchased a plot of 25 x 25 from and out of House No. 203 for Rs. 2500. The description of the property as described in the sale deed said that on east, the house of the vendee, on west, the road, on south the house of Shri Shivram Rangnath Chavan and in the North public well and the open place. Though the sale deed states that the consideration is R. 2500/- out of that, Rs. 1500 were paid to the vendor by the vendee prior to execution of the sale deed and remaining amount of Rs. 1000 was paid at the time of execution of the sale deed. From the contents of the sale deed , it appears that the plot which is purchased by Tulshiram Chavan is adjacent to his own house and the said plot is sold for the family necessity and for raising funds for the business. From the he contents of both the sale deeds referred to above, I have to find out whether the sale deeds can be taken into consideration to determine the market value of the acquired land. The claimants have not established that these two plots are adjacent to or in the vicinity of the acquired land. Both the claimants nor the attesting witnesses, namely, Vishwanath Gadde,Dinkar Fattepurkar, Murlidhar Sonwalkar, have stated about the location of the plots sold and the acquired land. Only general statement is made by reference to approximate distance which is not a safe criteria to consider whether the plots are near or in the vicinity of the acquired lands. Having considered the evidence of these three attesting witnesses, it is not established that whether these plots are within the vicinity of or near the acquired lands.

26. From the cross-examination of Vishwanath, it is clear that the plot which is sold has some additional material on the plot and he has stated that no separate price was paid for the stones and material lying on it. He accepted that there is high demand to the small plots than the big plots. As I discard the sale deed proved by Shri Dinkar Fattepurkar( Exh. 28), it is not necessary for me to consider the evidence because the sale deed was executed after Section 4 notification. Even assuming for the time being that these sale deed can be considered as comparable one, but this witness is not at able to establish whether the plot purchased and the acquired land is in the vicinity. The last witness Murlidhar Sonwalkar who proved Exh. 34, accepts in the presence of the sub-Registrar that a sum of Rs. 1000 was paid. Though the suggestion is put to him in cross-examination that the land under acquisition was being cultivated at the time of notification, he accepted that the plot sold by him was very convenient to the purchaser as it was adjacent to his house. He also accepted that the price of the small plots are more as compared to the big plots. He also accepted that the plot conveyed vide Sale deed Exh. 34 was at very convenient place and nearer to the market place on both the sides of this plot, there is main road, there are shops of different kinds. Considering this aspect brought on record by the claimants, these two sale instances having special features cannot be considered to be comparable one because it does not fulfil category Nos. 3 and 4. Hence I discard the sale-deeds. Even with these drawback if one has to consider those sale instances for determining the market value, the average price comes within the range of Rs. 2 per sq. ft. only. Now, it remains for me to consider the judgment of the learned Civil Judge in LAR No: 27/1984. From the judgment at Exh. 24, it is clear that the land Survey No.3/1 admeasuring 45R and 3/2 admeasuring 1 H 55R came to be acquired for construction of road and extension of Abadi of Ausa town. The word "Abadi" means " residential". It is not disputed that the award Exh. 13 covers these two lands also and the lands of the claimants under these appeals. The claimant Maula in LAR No: 27/1984 Exh. 24 had 1/3rd share in the both the lands. Both the lands taken together i.e. Survey No. 3/1, 3/2 comes to 2 H. As all the lands including the land under these appeals were acquired by the Government by issuing notification u/s 4 on 11th March, 1980 the award came to be passed on 17th March, 1982 wherein the LAO has granted total compensation to all the 6H of land amounting to Rs. 43,500/- including the solatium he has calculated the amount at Rs. 50,025; though the claimants have not produced any reliable evidence to indicate that the compensation that was granted by the learned Civil Judge in LAR No: 27/84 was inadequate or does not reflect true market value. In fact, the submission which is made by the learned AGP that the land which was acquired on the date of notification was being utilised as an agricultural land and to establish this fact, the learned AGP relied on the 7/12 extract at Exhs. 15 and 16 which shows that till 1981-82 the lands were under cultivation. In fact, the learned Judge should have awarded compensation on the basis considering the lands as an agricultural land. I would have certainly accepted the contention of the learned AGP provided the Government has challenged the judgment and order passed by the learned Civil Judge Sr.Dn. Latur in LAR No: 27/1984 where the land covered by the same notification and award was subject-matter. Having accepted the valuation made by the learned Civil Judge in respect of land Survey No.3/1 and 3/2, in my judgment, this judgment in LAR No: 27/1984 becomes relevant to determine the market value of the land. Whether the judgment in land acquisition matters can be considered as relevant for the purpose of determining the market value of the acquired land on the date of notification is no more res integra in view of the judgment in the case of Land Acquisition Officer City Improvement Trust vs. H. Narayanaiah .

27. The only relevant observation of the Apex Court for the purpose of determining the market value on the basis of the judgment rendered in the land acquisition matters though the Apex Court was considering the provisions of City of Bangalore Improvement Act, 1945 and Mysore Land Acquisition Act, 1894 ;but the Apex court has an occasion to consider the relevancy of the judgment produced in evidence. From the statements of fact referred to in para no.24 onwards, it reveals that an application was filed under O 41 R 27 before the Karnataka High Court where the appeals were pending by producing the judgment of the land acquisition proceedings in some other matters. The Apex Court considered the validity of the order of the High Court and considering the provisions of Section 42 and 43 of the Evidence Act, the Apex Court said that these judgments were relevant and can be considered to determine the market value. The Apex Court observed thus:

"26. It is apparent that section 43 enacts that judgments other than those falling under sections 40 to 42 are irrelevant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act". An obvious instance of such other provision is a judgment falling under section 13 of the Evidence Act. The illustration to section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may be relevant.

27. In Special Land Acquisition Officer, Bombay v. Lakhamsi Ghelabhai,(1) Shelat J, held that judgments not inter partes, relating to land acquired are not admissible merely because the land dealt with the judgment was situated near the land of which the value is to be determined. It was held there that such judgments would fall neither under section 11 nor under section 13 of the Evidence Act. Questions relating to value of particular pieces of land depend upon the evidence in the particular case in which those facts are proved. They embody findings or opinions relating to facts in issue and investigated in different cases. The existence of a judgment would not prove he value of some piece of land not dealt within at all in the judgment admitted in evidence. Even slight differences in situation can, sometimes, cause considerable differences in value. We do not think it necessary to take so restrictive a view of the provisions of Sections 11 anti 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizuddin v. State of Andhra Pradesh,(1) a bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case. ( underlines are mine).

28. Having considered the law declared by the Apex Court, I am of the view that the judgment at Exh.24, being relevant can be considered to determine the market value of the acquired lands as this is the only piece of evidence on record worth consideration. The land which was subject-matter of reference was also 2 H land. This land was also covered by the same notification and also by the said award but only difference was that the judgments were delivered by the learned Civil Judge at different dates. It is surprising to me that though the judgment is produced on record and exhibited, the learned Judge has not taken care to refer this document in his judgment. When same learned Judge in respect of the part of land which is acquired has determined the market value at Rs. 2 per sq. ft., as such, there is no valid reason why this judgment is not made applicable to these references also. I, therefore, find considerable force in the contention of the learned learned AGP that though the judgment was produced on record, the learned Judge has not considered the same. In my judgment, Exh. 24 will be relevant and has to be considered to determine the market value the principles that are applicable for comparable sale instances can be made applicable to the judgments of the Civil Court in respect of the part of the land acquired by the said notification and subjected to same award. Therefore, in my judgment, the land Survey Nos.3/1 and 3/2 are adjacent to the land belonging to the present claimants. Both had similar advantages and applying that principle, in my judgment, the judgment at Exh.24 will have to be made applicable in determining the market value of the acquired land, as it complies Condition No.3 in Para 23 ( supra). The learned Judge has totally ignored this document. Therefore, in my judgment, Exh. 24 is the best piece of evidence to determine the market value. As this judgment has become final as no appeal has been filed, it is accepted by the State which indicate that the State has accepted the market value to determine by the learned Civil Judge in respect of the lands which are subject-matter of the same acquisition and, therefore, as the claimants have not produced any reliable evidence to justify their claim that they are entitled for compensation at Rs. 5 per sq.ft. In my judgment, the claimants have failed to establish the market value of the acquired land at the time of acquisition was Rs. 5 per sq.ft. In my judgment, the land which is acquired for construction of huts has non-agricultural potentiality and the lands are being used for construction of huts for dishoused persons of the lands, namely, Survey No.1, 3/1 3/2 and 188 are adjacent to each other and in the vicinity of each other, acquired for the same purpose. The possession is also taken on the same date and having all advantages similar in all respect. Therefore, the judgment ( Exh. 24) can be considered as a base for determining the market value. As the said judgment was not considered by the learned civil Judge, I am of the view that the learned Judge has fell into error in not considering the judgment which is produced on record by the claimants and determining compensation at Rs. 4/per sq.ft.

29. Applying the market value as determined by the learned Civil Judge in LAR No: 27/1984 I hold that the market value of lands belonging to claimants will be at the rate of Rs. 2 per sq.ft.

30. As I accept the judgment LAR No: 27/1984 it is not necessary for me to refer all the judgments which are cited by both the learned Advocates in support of their respective contentions. From the evidence on record, it is clear that the lands under acquisition has non-agricutural potentiality; it is on the outskirts of Ausa city and, therefore, in my judgment, it is not necessary to refer to all those authorities referred by the learned Advocate as it will unnecessarily burden my judgment. The principles enunciated and approved can be accepted in the present case also. Admittedly the claimants have relied only on the three sale instances which I have discussed above and the judgment Exh.24. In my judgment, the judgment Exh.24, is only relevant to determine the market value of the acquired land. The claimants have not established that their land being Survey No. 1 and 188 is superior or has some extra advantage than the lands of the claimant Maula in LAR No: 27/1984 which were acquired in the same notification and by common award dated 17th March 1982, I accept the piece of evidence of Exh.24, coupled with three sale instances with all drawbacks as indicated earlier I hold that the claimants are entitled to the compensation @ Rs. 2 per sq.ft. even though the land on the date of acquisition was under cultivation but in view of the judgment of the Civil Court (Exh.24) which is accepted by the State, the State cannot deny same value to the claimants.

31. The claimants in their claim Petition filed before the Court have stated that the total land is 10A ( 4H) i.e. -5A each ( i.e. 2 H) they have calculated the area on the basis of sq.ft. which together comes to 4,35,000( each 2,17,800), deducting 1/3 area as per the claim Petition , the area for awarding compensation comes to 1,52,480. The claimant have claimed compensation for this area i.e. 1,52,480, the claimants have not established that the market rate on the date of notification was Rs. 5 per sq.ft. and as I determined the market value at Rs. 2 per sq.ft. accordingly, each claimant is entitled for the compensation of the total land ( plottable area) of 1,52,460. The claimants then entitled to the compensation at the rate of Rs. 2 /per sq.ft. which will come to Rs. 3,04,920/-. On this amount the claimants are entitled to 30% solatium which will come to Rs.10,164; hence the total compensation to be paid will be Rs.3,15,084/-. The claimants have withdrawn Rs. 16,675/- as per the award dated 17.3.1982. This amount has to be deducted from Rs.3,15,084/-. The total then comes to Rs. 2,98,410/-. On this amount, the claimants are entitled for interest under section 28 of the Act. The learned trial Judge has awarded 15% interest uniformly on the enhanced compensation, which is contrary to Section 28 of the Act. As the possession of the lands is taken on 16.5.1981 (Per Exh. 20). The interest is to be calculated from this date. Granting of 15% uniform rate of interest is set aside. I hold that for first year from 16.5.1981, the claimants are entitled to interest at the rate of nine per cent and thereafter at the rate of 15 per cent till the realisation. As in these appeals, the claimants have withdrawn the amount as per the judgment and order of the Civil Court, the amount of interest is to be calculated by the executing Court, in these terms. Accordingly, the judgment and order passed by the learned Civil Judge S.D. Latur in LAR 176 and 177 both of 1986 is set aside and modified, as indicated below:

   

A) The claimant in LAR No.176/86 is entitled to the compensation i.e. 
 a)  Market value at the rate of Rs. 2 per sq.ft. for land 1,52,460 sq.ft.   ..Rs. 3,04,920
b)  Solatium u/s 23 at the rate of 30%..                                                     Rs. 1,01,164 
                                                                                                                  --------------------
                                                                                                 TOTAL....   Rs.3,15,084 

 

(From Exh.20 -Panchnama the possession is taken on 6.5.1982, which will be be date for awarding interest u/s 28 of the Act... {To be calculated by the Executing Court} 
 

B) Claimant in LAR No: 177/1986 as per Table (A). 
 

32. The appeals filed by the State of Maharashtra being First Appeal Nos. 462 and 463 both of 1993 allowed with proportionate cost.
 

33. The First Appeal Nos. 62 and 63 both of 1990 filed by the claimants dismissed, with no orders as to costs.
 

34. The claimants have filed Civil application challenging the order passed by the Executing court on 18th August, 1989. As I have set aside the judgment and order passed by the learned Civil Judge in LAR No. 176 and 177 of 1986 the order passed by the Executing court will have to be also set aside and declared invalid. Accordingly, both Civil Applications stands disposed of.
 

35. Needless to mention that the excess amount which is received by the claimants pursuant to the judgment and order passed by the learned civil Judge S.D. Latur in LAR No; 176 and 177 of 1986 and consequent order passed by the Executing Court in that respect the claimants are directed to refund that amount received by them to the State Government within three months from today, with nine percent interest from the date on which they have received the said amount till the date of payment to the State Government. 36.Order accordingly.