Dwarkadas Alias Dwarkaprasad ... vs The State Of Maharashtra Through ...
2003 Latest Caselaw 227 Bom

JUDGMENT

D.S. Zoting, J.

1. Heard Mr. D.R. Bhadekar, the learned Counsel for the appellants and Mr. Vikhe Patil, the learned A.G.P. for the respondents, in both the appeals.

2. These are the two appeals preferred by the land owners whose lands have been acquired by the Government. Both these appeals arise out of the common Judgment and Award dated 29th July, 1988 passed by the Reference Court in L.A.R. No. 126/1983 and 133/1983 respectively, and, therefore, they are being disposed of by common judgment.

3. Facts relevant for the decision of these appeals may be briefly stated as under :-

The State of Maharashtra issued a notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) seeking to acquire the lands belonging to the claimants of village Tikhadi, Taluka -Kalamnuri, Dist. Parbhani, for a public purpose namely Upper Penganga Project, Isapur Reservoir, The notification was published in Maharashtra Government Gazette on 21.7.1977. The declaration under Section 6 of the Act was published in the Maharashtra Government Gazette on 17.4.1980 at page No. 1960 and 1961. The Special Land Acquisition Officer passed the award on 4.9.1982. He fixed the market value of the land at the rate of Rs. 44.16 per R. in the case of the claimants in L.A.R. No. 126/1983, whereas in the case of the claimants in L.A.R. No. 133/1983 he fixed the value of the land at the rate of Rs. 42.95 per R. In L.A.R. No. 126/1983, 1 Hectare 28 Rout of survey No. 2, situated at village Tikhadi. Taluka-Kalamnuri was acquired, whereas in L.A.R. No. 133/1983, 3 Hectares 91 R land out of survey No. 24/2 situated at village Tikhadi, Taluka Kalamnuri was acquired by the State of Maharashtra through Land Acquisition Officer respondent No. 2.

4. Aggrieved by the award, the claimants submitted application under Section 18 of the Act seeking enhancement of the market value in the reference application under Section 18 of the Act. They claimed that the market value at the relevant time of the notification under Section 4(1) of the Act was Rs. 10,000/- per acre.

5. A notice being served on the respondent State before the Reference Court, the learned A.G.P. put an appearance and resisted the claim.

6. In support of their case, the claimants examined themselves on oath. They did not adduce any more oral evidence. However, they produced the certified copy of one sale deed in support of the claim.

7. Reference Court on appreciation of evidence come to the conclusion that the market value of the acquired land was Rs. 12,500/- per Hectare. Accordingly the reference Court fixed the market value of the acquired lands of the claimants at the rate of Rs. 12,500/- per Hectare and awarded enhanced compensation of Rs. 9,500/- in L.A.R. No. 126/1983, whereas in L.A.R. No. 133/1983 enhanced compensation was awarded to the extent of Rs. 29.163/- alongwith solatium at the rate of 30% on the above amount as well as 12% per annum interest, from the date of the award.

8. Being dissatisfied with the quantum of compensation awarded by the reference Court, both the claimants in the above referred land references, preferred these appeals contending that the market value fixed by the reference Court is grossly inadequate ignoring the sale instances produced by the claimants. It is further contended that the compensation awarded by reference Court is less than the rates suggested by the Commissioner appointed by the Government, from the point of view of purchasing other lands of equivalent fertility and quality at other places. It is further contended that the reference Court has not considered the fertility of the acquired lands.

9. As against this, the learned A.G.P. has fully supported the judgment passed by the reference Court contending that the adequate compensation has been awarded taking into consideration the evidence produced by the claimants. It is further contended that the claimants are not entitled to get more compensation already awarded by the reference Court.

10. Taking into consideration the contentions raised by the parties, the problem which has surfaced in the present appeals, is centered on the valuation of the lands under the acquisition. It is to be noted that the notification under Section 4(1) of the Act was published on 30th April, 1977. Therefore, the market value existing at that time will have to be considered for the purposes of assessing the market value of the acquired area.

11. In Chimanlal v. Special Land Acquisition Officer, Poona , the Apex Court held :-

The Court, has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.

The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the other side can also produce the material and prove the same and that can also be taken into account for the purpose of ascertaining the market value of acquired land.

12. Thereby, it is settled law that the claimant is a plaintiff and the reference is an original proceeding to determine market value afresh. It is for the claimant to produce the material evidence for enhancement of the price of acquired land.

13. In the present case claimants have produced the evidence of only one sale instance. As against that evidence, the present respondent did not produce any evidence either oral or documentary.

14. As regards the said sale instance relied upon by the claimants, claimant. Jagannath deposed in L.A.R. No. 133/1983 that, one person sold 2 acres 34 gunthas land to one Kanhaba for a consideration of Rs. 24,000/- and, therefore, relying on the said sale instance, they claimed that the market value of their land should be fixed at that rate i.e. Rs. 10,000/-approximately per acre. It is to be noted that the said land purchased under the sale deed referred to above is situated at Parda, whereas the acquired lands are situated at Tikhadi which is about 2 to 3 kms. away from the land which is subject matter of the said sale deed. The copy of the sale deed is placed on record which clearly shows that the said sale deed is executed in the year 1981, whereas the lands of the claimants were acquired in the year 1977. Thus, the sale instances relied upon by the claimants pertains to post notification period. It is to be noted that market value prevailing at the relevant time of the notification under Section 4 of the Act will have to be assessed and the post notification sale instances that too of four years period subsequent to the notification under Section 4 of the Act that too relating to the lands at a distance of 3 kms from the acquired area cannot and does not reflect the true market value at the date of the notification under Section 4 of the Act and, therefore, said sale instances is of no avail to the claimants to prove their cases. However, the learned Counsel for the appellants submitted that claimants Dwarkadas owns lands at Tikhadi and at other adjoining villages namely Gadibori, Jawalka, Parda and his lands situated at Gadibori were also acquired by the Slate of Maharashtra for the same project under the notification under Section 4 of the Act issued in the year 1974 and he received compensation at the rate of Rs. 6,000/- per acre. He made statement on oath to that effect in his deposition Exh. 18. Not only this, but the learned Counsel for the appellants in support of his submissions has filed the certified copy of the judgment in L.A.R. No. 274/1984 dated 1st November, 1990 passed by the reference Court fixing market value of the lands of the present appellants at the rate of Rs. 6,000/- per acre. It is to be noted that in the said L.A.R. No. 274/1984, both the appellants were the petitioners. The learned Counsel for the appellants under such circumstances, further submits that the compensation in the present cases should not be less than at the rate of Rs. 6.000/- per acre on the basis of the judicial determination of the market value in previous judgment referred to above.

15. In support of his contentions, he has placed reliance on Collector Bilaspur v. Lachhman and Ors. ., and State of Orissa v. Rajendra Panda and Ors. . The Division Bench of the Orissa High Court in the above referred case, held that the previous judgment between the same parties being the judicial determination of the market value of the similar land of the neighbourhood of the acquired lands furnish a good guide in determining the market price of the acquired lands and the rates at which the compensation awarded in the previous judgment between the same parties would be highly probable rates as the land acquired in those cases and in the present case were similarly situated and were acquired under the same notification and for the same purposes.

16. The facts of the present cases are identical with that of the case referred to in the decision given by the Orissa High Court. As already stated, the previous judgment is between the same parties. The land acquired in the previous judgment were for the same project and the said notification under Section 4 of the Act, acquiring the said land is prior to the notification issued in the present matter. Under such circumstances, in view of the provisions of Section 43 read with Section 11 of the Indian Evidence Act the judgment between the same parties as regards the market value given in previous judgment would be highly probable rates in determining the market value of the lands of the claimants. Therefore, I hold that the appellants are entitled to get the compensation for the acquired lands at the rate of Rs. 6,000/- per acre. The learned Judge has awarded the compensation at the rate of Rs. 5,000/- per acre. Adopting, the rate of Rs. 6.000/- i.e. Rs. 15,000/- per hectare, the market value of 1 H. 28 R of land of the claimant in L.A.R. No. 126/1983 comes to the extent of Rs. 19.200/-. The claimant has already received Rs. 6,500/- as awarded by the Land Acquisition Officer, therefore, he is entitled to get enhanced compensation of Rs. 12,700/-. In L.A.R. No. 133/1983, 3 N. 91 R land is acquired. The total market value at the rate of Rs. 15,000/- per hectare would come to Rs. 58,650/-, The claimant has already received Rs. 19,312/- as awarded by the Land Acquisition Officer, therefore, he is entitled to get enhanced compensation of Rs. 39,338/-. Both the claimants are also entitled to get solatium at the rate of Rs. 30% and 12% interest excess on the enhanced compensation from the date of the award as already held by the reference Court.

17. In the result, both the appeals deserves to be allowed partly by modifying the Judgment and Award passed by the reference Court. Accordingly, the claimant in L.A.R. No. 126/1983 is entitled to enhance compensation of Rs. 12,700/- from the respondents State.

18. The claimant in L.A.R. No. 133/1983 is entitled to enhanced compensation of Rs. 39,338/- from the respondents State.

19. Both the claimants are entitled to get solatium at the rate of 30% on the enhanced amount of compensation. They are also entitled to get 12% interest per 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), to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier as per the provisions of Section 23(1A) of the Land Acquisition Act, 1894.

20. Both the appeals are partly allowed with proportionate costs from the respondents State.