Govind Kanu Madhavi (Since ... vs The Spl. Land Acquisition Officer
2004 Latest Caselaw 518 Bom

JUDGMENT

P.V. Kakade, J.

1. This appeal arises out of the judgment dated 6.1.1988 passed by the Civil Judge, Sr.Divn., Alibag in L.A.R. No. 62 of 1982.

2. Heard learned counsel for the appellant claimant as well as the learned A.G.P. for the State.

The Special land Acquisition, Metro Centre No. 1, Panvel, Dist. Raigad Acquired lands for New Bombay Project admeasuring 8330 sq. mtrs. from Survey Numbers belonging to the claimant for which notification under Section 4 of the Land Acquisition Act (hereinafter referred to as "the said Act") came to be issued on 3.2.1970. The awarded rate of compensation was Rs. 3/- for Survey No. 44/3 and Rs. 5/- for Survey No. 45/5. The award came to be passed on 18.6.1981. The claimant filed reference under Section 18 of the Act making grievance that the market price awarded by the Special Land Acquisition Officer (hereinafter referred to as "the S.L.A.O.") was unreasonable and inadequate considering the N.A. potentiality, capitalization and sale instances. Therefore, he claimed compensation at the rate of Rs. 10/ per sq.mtr. and also claimed additional compensation under different counts contemplated under the said Act. The opponent State opposed the reference denying the claim of the claimant. The learned Trial Judge settled the issues and adjudicated the dispute on merits and came to the conclusion that proper and fair market price of the impugned land was Rs. 7/- per sq.mtr. He also awarded additional components under the Act i.e. compensation under Section 23(1-A), 23(2) and under Section 28 of the Act and award came to be passed. It was also directed that since the claimants where the tenants in the suit property, they were entitled to 60% of the decretal amount and residue was to go to the landlord i.e. the Trust. Hence, the claimant filed appeal inter-alia submitting that proper market rate of the impugned property was Rs. 30/- per sq.mtr. and hence the appeal.

On the other hand, the State has come in appeal stating that the award passed by the learned Trial Judge was exorbitant and, therefore, the order is required to be quashed as the award of the S.L.A.O. was proper.

3. At the outset, it may be noted that it is an admitted position that the lands in question are from village Kalundre, Tal. Panvel, Dist. Raigad and were acquired for New Bombay Metro Project alongwith several other lands from several adjoining villages for the development of New Bombay Project to facilitate establishment of new city consisting of commercial, residential and industrial township. The claimant has led his evidence including the evidence of witness Shri Kulkarni, the expert valuer, whose report and the map are also on record. As against this, the State has led absolutely no evidence either documentary or oral in order to rebutt the evidence of the claimant. While adjudicating the reference, the learned Trial Judge has referred to the evidence of sale deed which has come on record through the claimant's evidence alongwith expert valuer's report As can be seen from the record, the learned Trial Judge has put reliance on the expert valuer's opinion and report, which dhows that the value of the land is assessed on the basis of several sale instances of adjoining lands as well as location, situation and infrastructural facilities available on the land as on the date of notification. The report Exh.19 shows that the Bombay-Pune National Highway is at the distance of 300 meters from the land and Panvel railway station is at about 1500 meters, M.S.E.B. colony is about 1000 meters, the old Panvel Municipal limit is at 300 meters and Palaspa commercial complex is at 400 metes away from the acquired lands.It is also a plain land and requires no filling and, therefore, considering the facilities available and the particular individual characteristic, emphasize was given to the land's N. A. potentiality. The report also shows that the CIDCO, for whose use the impugned land was acquired, had sold undeveloped land in the same village at the rate of Rs. 75/- per sq.mtr. It is significant to note that this evidence was not challenged on behalf of the state and, therefore,, the learned Trial Judge was of the view that the situation of the land and surrounding area which was narrated to and shown in the map as well as report of the expert valuer, were required to be accepted and, therefore, he came to the conclusion that it was necessary to increase the rate of compensation as the rate granted by the S.L.A.O. was inadequate. Taking into account all these things, the learned Trial Judge was of the view that the fair market price of the land was Rs. 7/- per sq.mtr. and accordingly passed the award.

4. In this regard, I must note that the Division Bench of this Court had occasion in several appeals to determine the value of the lands involved in the New Bombay Metro Project. In First Appeal No. 754 of 1986 alongwith other appeals, which came to be disposed of by the Division Bench of this Court (Puranik & Maharir, JJ) on 25.2.1993, the lands involved were situated within the municipal limits of Panvel and kamothe. After considering the material which had come on record including the earlier awards made in the year 1966, the learned Division Bench divided the lands into several groups depending upon vicinity of the respective lands to the National Highway No. 4 as well as other infrastructural facilities and came to the conclusion that the lands in question were of the fair market price within the range between Rs. 18/- to Rs. 25/- per sq.mtr. Another group of appeals by First Appeal No. 382 of 1984 had come up before another division Bench of this Court (Shah & Kotwal, JJ.) which were disposed of in the year 1987 and the areas involved therein was from villages Kamothe, Kalaboli, Asudgaon and Panvel and other villages and it was observed by the Division Bench that it was not in dispute that the said lands involved in the appeal were located on Bombay-Pune National Highway where the lands were acquired had N.A. Potentiality and had become centre of local trade and commerce. In the recent ruling, the Division Bench in First Appeal No. 757 of 2003 (F.I. Rebello & S. R. Sathe, JJ.), dated 31.3.2004 has also accepted the said ratio laid down by the earlier judgments of the Division Bench noted above and have come to the conclusion that the market value for the impugned lands to be fixed on the basis of said ratio.

Therefore, when we take into account the entire evidence on record and apply the ratio laid down by the various Division Benches of this court to the lands in the adjoining areas of the impugned lands, there is absolutely no doubt that the present appellant-claimant is entitled to the enhanced rate of compensation. As noted earlier, it is in evidence that the impugned land is at the distance of about 300 meters from Bombay-Pune National Highway and it also has infrastructural facilities available and tremendous N. A. Potentiality and, therefore, in my considered view, the fair market and proper market price of the impugned land would be Rs. 25/- per sq.mtr.

5. The learned A.G.P. made submission to the effect that the learned Trial Judge had not made any deduction for development charges from the awarded amount and, therefore, as per the ratio laid down by the Apex Court in various cases, the development charges should be deducted from the awarded amount. In my considered view, it is to be noted that the expert valuer's report is specific on this point stating that the lands are plain and require no filling This statement is also not challenged on behalf of the State and, therefore, it was submitted on behalf of the appellant that no development charges are required to be deducted. However, in my considered view, when the agricultural lands are acquired for any such purpose, especially for establishment of independent township, development is bound to be made for which charges are required to be deducted. In view of this position, in my view, Rs. 2/- per sq.mtr. should be deducted towards development charges and, therefore, the net market price of the impugned land comes to Rs. 23/- sq.mtr. to which the claimant is entitled.

6. At this stage, the learned A.G.P. made submission that the reference under Section 18 of the Act is time barred by virtue of Section 18(2) of the said act as the reference was not made within the period of 42 days from the receipt of notice. However, in this connection, it must be noted that this point was not taken by the State while opposing the reference in the Trial Court nor any opportunity was given to the claimant to meet the said claim and, therefore, the question of limitation cannot be considered only as a pure question of law but in this case it has to be considered as mixed question of law and facts. This aspect can also be looked into from altogether different angle. Even if it is held that the notice of the award was received y the claimant and reference under Section 18 was filed after the period of six weeks or 42 days, still unless and until claimant receives the copy of the award, it would not be possible for him to determine whether it would be necessary to file reference or not and, therefore, in my view, claimant cannot be non-suited on such technical ground especially in absence of any opportunity to him to meet the allegations at the trial stage.

7. Reference must be made to the argument advanced on behalf of the State at the trial stage as well as in this appeal to the effect that, in view of the provisions of Section 9 Sub-sections (3) & (4) read with Sections 10 and 25 of the Act, it was absolutely necessary that claimant should e restricted to his claim which he received immediately after receipt of notice under Section 9 of the Act. However, this issue is now resolved by the Division Bench of this Court while adjudicating the First Appeal No. 757 of 2003 (F.I. Rebello & S. R. Sathe, JJ.) by judgment dated 31.3.2004. It is observed thus:-

"Therefore, the provisions of Section 25 as amended would apply to those acquisitions which were made subsequent to 24.9.1984. on behalf of the state, our attention was also invited to the judgment of the Apex Court in the case of Ujjain Vikas Pradhikaran (Ujjain Development Authority) v/s Tarachand another . The Apex Court therein noted that under Section 25(2) of the Act prior to the Amendment, the Court was prohibited to enhance the compensation in excess of the amount claimed pursuant to the notices issued under Sections 9 and 10 of the Act. since Sub-section (2) of Section 25 was deleted by Amendment Act 68 of 1984, the limitation on the exercise of the power of the Court was taken away. Nonetheless, it would always be open to a party to claim a particular amount and having claimed at the rate, the question arises whether the Court would grant compensation higher than that claimed by the party ? Answering the issue the Court observed that, it would be obvious that when a party claims compensation at a particular rate, he assesses the market value of the land at that particular rate and seeks compensation on that basis. Having assessed the compensation at that particular rate, the question emerges whether the Court could grant higher compensation than was assessed by the party. The Court held that in such situation the Court could not grant compensation than what was sought for by the party.

It is therefore clear that it will not be open to the Court to consider the provisions of Section 25 as amended in those appeals where the awards were made before the amendment. The question then would be whether on this count the State's appeal will have to be allowed and the market value as granted will have to be set aside. In view of this position, claimant can definitely claim compensation higher than what was originally prayed for while original reference was made before the Collector under Section 18 of the Act.

We have earlier referred to provisions of Section 25, Section 25(2) and 25(3) before its amendment read as under :-

"(2). When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by he Court shall in no case exceed the amount awarded by the Collector.

(3). When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than and may exceed the amount awarded by the Collector." 8. As is clear from the record, the learned Trial Judge alongwith other components, has also granted the additional compensation contemplated under Section 23(1-A) of the Act to the present claimant. However, now the law is settled to the effect that the additional compensation contemplated under Section 23(1-A) of the act would not be applicable where award is made by the Collector before 30.4.1982 which is the date of introduction of amendment bill in Lok Sabha. The award in this case is of 18.61981 and to that extent the claimant of the appellant has to be rejected. So far as other additional components contemplated under the provisions of the said Act are concerned, the learned Trial Judge has rightly held that the claimant is entitled to the component under Section 23(2) as well Section 28 of the Act. Therefore, those findings are not required to be disturbed at all."

We have already reproduced the provisions of Section 28(A). A perusal of Sub-section (3) of Section 28(A), would show that any person who has not accepted the award under Sub-section (2) may, by written application to the Collector require that the matter be referred by the Collector for determination of the Court and the provisions of Sections 18 to 28 shall so far as may be, apply to such reference as they apply to a reference under Section 18. In other words the provisions of Sections 18 to 28 are also made applicable while considering the reference under Section 28(A). What this would mean is that the provision of Section 25(4) and (5) as they stood before the amendment, would also be applicable in those cases where the amended provisions of the Act are not applicable. That would mean that under Section 25, the Reference Court for sufficient reason can allow party to make a claim, even if the claim had not been made. It will also mean that it will be open to the party to make a higher claim, if the claim had been restricted and for the Reference Court to consider whether it should be allowed. It would not be possible to construe the power under Section 25 to only those cases where no claim had been made. to give effect to the provisions, it would cover both situations, where either claimant had not made a claim or had made lesser claim. In such cases the reference Court for sufficient cause can allow the party to make the claim. It is, therefore, clear that there was discretion in the reference Court even prior to the amendment to allow a party to make claim if not made in reply to a notice served under Section 9 or to permit a higher claim than that made in a reply to the notice under Section 9 of the Act."

9. In view of this situation, the claimant shall be entitled to the compensation at the rate of Rs. 23/- per sq.mtr. alongwith additional component under Section 23(2) as well as Section 28 of the Act.

In the result, the First Appeal No. 399 of 1995 is hereby partly allowed.

It is clarified that the amount received by the claimant under Section 23(1-4) of the Land Acquisition Act will have to be refunded to the State after adjusted with the claim at the rate of 9% p. a.