Bombay High Court
The State Of Maharashtra vs Bhaskar Namdeo Wagh on 23 October, 2008
Bench: A.P. Deshpande
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IN THE HIGH OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1025 OF 1999 with FIRST APPEAL
NOS. 1026/99 TO 1032/99, 1034/99, 1035/99, AND 873/99.
FIRST APPEAL NO. 1025 OF 1999 with
CIVIL APPLICATION NO.8958/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ......... Appellant
(Orig. Opponent)
Versus
1. Bhaskar Namdeo Wagh,
Age 51, Occ. Service.
2. Sahebrao Namdeo Wagh,
Age 40, Occ. Service.
3. Hiraman Namdeo Wagh,
Age 38, Occ. Service.
4. Smt. Shivabai Namdeo Wagh,
Age 70, Occ. Household.
5. Mrs. Usha Namdeo Wagh,
Age 20, Occ. Household.
All resident of Mukhed,
Tal. Yeola, Dist. Nashik.
6. Mrs. Kamalabai Anandrao Ghodekar,
Age 50, Occ. Household.
7. Mrs. Satyabhamabai Kacharrao Ghogadmal
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8. Mrs. Shashikala Sahebrao Jadhav
Both resident of Mukhed,
Tal. Yeola, Dist. Nashik.
No. 1 himself and G.P.O.A.
Holder Nos. 2 to 8. .......... Respondent.
(Org. Claimant.)
FIRST APPEAL NO. 1026 OF 1999 with
CIVIL APPLICATION NO.8959/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ......... Appellant
(Orig. Opponent)
Versus
Ramdas Bhagwat Lifte,
Age 40, Occ. Agriculturist,
Resident of Wakad,
Tal. Niphad, Dist. Nashik. .......... Respondent.
(Org. Claimant.)
FIRST APPEAL NO. 1027 OF 1999 with
CIVIL APPLICATION NO.8960/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ......... Appellant
(Orig. Opponent)
Versus
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Saka Shankar Wagh,
Age 65, Occ. Agriculturist,
Resident of Mukhed,
Tal. Yeola, Dist. Nashik. .......... Respondent.
(Org. Claimant.)
FIRST APPEAL NO. 1028 OF 1999 with
CIVIL APPLICATION NO.8961/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ig ......... Appellant
(Orig. Opponent)
Versus
Nanda Sada Wagh,
Age 55, Occ. Agriculturist,
Resident of Wakad (Shirwade),
Tal. Niphad,
Dist. Nashik. .......... Respondent.
(Org. Claimant.)
FIRST APPEAL NO. 1029 OF 1999 with
CIVIL APPLICATION NO.8962/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ......... Appellant
(Orig. Opponent)
Versus
1. Ashok Karbhari Kale,
Age 28, Occ. Agriculturist
2. Navnath Karbhari Kale,
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Age 24, Occ. Agriculturist.
Both resident of Mukhed,
Tal. Yeola, Dist. Nashik. .......... Respondents.
(Org. Claimants.)
FIRST APPEAL NO. 1030 OF 1999 with
CIVIL APPLICATION NO.8963/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ig ......... Appellant
(Orig. Opponent)
Versus
Laxman Firangu Patil,
Age 75, Occ. Agriculturist,
resident of Wakad (Shirwade),
Tal. Niphad, Dist. Nashik,
Since deceased his L.Rs.
1) Amruta Laxman &
2) Bagwanta Laxman Lipte Patil,
3) Koubai Kacharu Shelke. .......... Respondents.
(Org. Claimants.)
FIRST APPEAL NO. 1031 OF 1999 with
CIVIL APPLICATION NO.8964/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ......... Appellant
(Orig. Opponent)
Versus
Bajirao Bala Patil,
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since deceased his LRs.
1) Nivrutti Bajirao Gaikwad, 55.
2) Haribhan Bajirao Gaikwad,45
3) Kumdeo Bajirao Gaikwad, 40
4) Dattu Bajirao Gaikwad, 38
All are agriculturist and
Resident of Wakad, Tal. Niphad,
District: Nashik. ..........
Respondents.
(Org. Claimants.)
FIRST APPEAL NO. 1032 OF 1999 with
CIVIL APPLICATION NO.8965/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ......... Appellant
(Orig. Opponent)
Versus
Trimbak Pandurang Ahire,
Age 55, Agriculturist, Resident of
Wakad, (Shirwade), Tal. Niphad,
District : Nashik. .......... Respondent.
(Org. Claimant.)
FIRST APPEAL NO. 1034 OF 1999 with
CIVIL APPLICATION NO.8967/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ......... Appellant
(Orig. Opponent)
Versus
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Dinkar Damodhar Badwar,
Age 40, Occ. Agriculturist,
Resident of Wakad, (Shirwade)
Tal. Niphad, Dist. Nashik. .......... Respondent.
(Org. Claimant.)
FIRST APPEAL NO. 1035 OF 1999 with
CIVIL APPLICATION NO.8968/1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ......... Appellant
(Orig. Opponent)
Versus
1. Bhausaheb Kachru Wagh
Age 30, occ. Agriculturist.
2. Deobai Kachru Wagh,
Age 65, Occ. Household.
3. Smt. Rambhabai Kachru Wagh,
Occ. Household.
(matter dismissed as against R.3
as per Order dated 22.8.02)
4. Smt. Shindubai Dinkar Kedare,
Age 36, Occ. Household.
5. Smt. Indubai Kachru Wagh,
Age 40, occ. Household.
(matter dismissed as against R.5
as per Order dated 22.8.02)
All resident of Mukhed,
Tal. Yeola, Dist. Nashik,
No. 1 for himself and General
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Power of attorney holder of
Nos. 2 to 5. ...... Respondents
(Orig.Claimants)
FIRST APPEAL NO. 873 OF 1999
The State of Maharashtra,
(At the instance of Special Land
Acquisition Officer, National Highway
Project, Nasik) ......... Appellant
Versus
ig (Orig. Opponent)
Sahebrao Sarjerao More,
age 55, occupation
agriculturist, resident of Wakad,
Tal. Niphad, Dist. Nashik. .......... Respondent.
(Org. Claimant.)
Mr. A. R. Patil, A.G.P. for the appellant/State
Mr. P. N. Joshi, Advocate for the Claimants/respondent.
CORAM : SWATANTER KUMAR , C.J., &
A.P. DESHPANDE, J.
Date of Reserving the Judgment :
20/8/2008
Date pronouncing the Judgment.:
23/10/2008
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J U D G M E N T : (Per A.P. DESHPANDE, J.)
These appeals arising out of land reference Nos. 365/89,
366/89, 367/89, 370/89, 371/89, 373/89, 374/89, 377/89, 23/95, 26/95
question the correctness of the Judgment and Award passed by the
District Judge, Nashik, enhancing the compensation granted to the
respondents/claimants in references filed under Section 18 of the Land
Acquisition Act. The Land Acquisition Officer, National High Way
Nashik (Special Land Acquisition Officer) published a Notification
under Section 4 of the Land Acquisition Act on 20.8.1981, followed by
declaration under Section 6 on 24.3.1983 and an Award under section 11
on 23.6.1986. Though the Notification under section 4 was issued on
20.8.1981, possession of the land has been taken little prior thereto i.e.
on 16.7.1981. The claimants accepted the award under protest and
moved reference applications under Section 18 of the Act, respectively.
The present appeal relate to the claimants whose lands are covered by
the said same notification. The lands of all claimants were acquired for
the same project under the same notification and hence, all the references
are decided jointly and disposed off by a common Judgment.
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2. The following particulars would indicate the land reference
numbers, land gat numbers and the area of land acquired :
Sr. No. L.R. No. Land Gat Nl. Area acquired.
1. 365/89 20 1 H. 99 R.& 0.6 PK.
2. 366/89 62 1 H. 29 R.
3. 367/89 21 0.43 R. & 0.02 PK
4. 370/89 23 0.37 R.
5. 371/89 65 0.62 R.
6. 373/89 63 1.25 R.
7.
8.
0.62 R.
1.48 R. 0.06 PK.
9. 23/95 66 1.25 R.
10. 26/95 19 2.94 R. & 0.05 PK.
The Special Land Acquisition Officer (SLAO) had made grouping of
the lands and decided to award compensation based on the groups which
encompasses the land. For Group I, the market value determined by the
SLAO was Rs.4500/- P.H.; for Group II the market value was Rs.5800/-
P.H. And for Group III the market value was Rs.9000/- P.H. As stated
hreinabove, the claimants not being satisfied with the quantum of
compensation awarded to them, filed reference applications under
Section 18 of the Act.
3. The claimants examined as many as 5 witnesses and proved
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the relevant documents with a view to establish the potential of the land
and other features which would entitle them to claim higher amount of
compensation. The District Judge grouped the land in 3 categories, i.e.
Bagayat, Jirayat and Pot Kharab. The compensation for Bhagayat land
has been granted by the Reference Court at the rate of Rs.48000/- P.H.;
whereas Jirayat Land the same has been granted at the rate of
Rs.32000/- P.H. and for Pot Kharab the same has been granted at the rate
of Rs.2000/- P.H.
4. Before we proceed to deal with the evidence led by the
claimants before the District Court, it wold be relevant to note that the
appellant/State chose not to file written statement before the District
Court and has also not led any evidence whatsoever. As the lands
which are subject-matter of these appeals were adjoining lands covered
by the same Notification issued for the same project, the lands are by and
large having the same potential depending upon the criteria of Bagayat,
Jirayat and Pot Kharab. Common evidence was recorded by the District
Judge as the land references were clubbed and evidence has been
recorded in Land Reference No.365/1989. The claimants had placed on
record two sale deeds. One sale deed is dated 28.5.1982 which is
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proved and marked Exhibit 26. The sale instance is in respect of sale of
a land admeasuring 1 hectare from the same Village Wakad. The said
land was sold at the rate of Rs.40,000/- per hectare. C.W.2 Dattatraya
Somvanshi is a witness to the sale deed at Exhibit-26, wherein one
hectare of land fetched Rs.40,000/-. He categorically deposed that the
land sold under sale deed at Exh.26 was Jirayat land. The other sale
instance which has been brought on record by the claimants is dated
4.12.1981, whereby land admeasuring 21 R. was sold for Rs.10,000/-.
This sale instance is proved by examining the Vendor Dadamiya
Inamdar C.W.4 and the sale deed has been exhibited as Exhibit 32. The
rate per hectare in respect of the sale deed dated 4.12.1981 comes to Rs.
47,619/-. The sale instance at Exhibit 32 is from adjoining Village i.e.
Village Mukhed. The said witness CW.4 Dadamiya Inamdar in his
deposition has stated that the distance between the land acquired and the
land under sale instance Exhibit 32 is very less and the two lands are
separated only by six survey numbers. This land covered by Exhibit 32
is a Bagayat land as the said land had irrigation facilities from the well
as well as canal. The District Judge has opted to rely on the sale deed
dated 4.12.1981 for the reason that the said sale instance is nearest in
point of time with Section 4 Notification which was issued on 20.8.1981.
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The District Judge accepted the sale instance at Exhibit 32 as a
comparable sale instance, having regard to the potential and location of
the land and thus fixed for the Bagayat land the market value at the rate
of Rs.48,000/- P.H.
For Jirayat land, he reduced it to Rs.32,000/- P.H. i.e. by
deducting about 1/3rd of the value. It will not be out of place to mention
at this juncture that the sale instance at Exhibit 26 was of Jirayat land
whereunder one hectare of land was sold at the rate of Rs.40,000/-. The
said land is from the Village Mukhed. That is the same Village wherein
the claimants' lands are situate. Had the District Judge relied on the sale
instance at Exhibit 26, the market value of the Bagayat land would have
been fixed at Rs.60,000/- per hectare. However, as the District Judge
found the sale instance at Exhibit 32 to be proximate in point of time to
the date of notification, he has relied on the same. The witness
examined by the claimants have deposed in support of the claimants,
categorically asserting that the market value of the land in question at the
time of acquisition was more than Rs.50,000/- per hectare. The
witnesses have also deposed about the potential of the lands and about
the advantages attached thereto on account of passing of canal from
nearby distance.
This Order is modified/corrected by Speaking to Minutes Order
5. The learned Counsel appearing for the appellant State has
in the first place contended that the Judgment and Award passed by the
Reference Court grants interest to the claimants from the date prior to
issuance of Notification under Section 4 of the Act and the same is not
permissible in law. Before we advert to the said contention, it would be
relevant to notice that the possession
ig of the land was taken on
16.7.1981; whereas the Notification under Section 4 was issued on
20.8.1981. Thus, the possession has been taken hardly a month before
the issuance of Section 4 Notification. As the payment of interest for a
period of about one month is objected to, it is obvious that the money
impact would be minimal. The learned Counsel for the appellant has
rightly relied upon a Judgment of the Supreme Court in R.L. Jain (D) by
Lrs. vs. DDA and others, reported in 2004(4) SCC 79. In the said case,
the Supreme Court has held that the claimant would not be entitled to the
additional sum from the date of taking of possession till the date of
publication of Section 4 (1) Notification. However, in para 18 of the
Judgment, the Supreme Court has observed thus :
" 18. In a case where the landowner is
dispossessed prior to the issuance of preliminary
notification under Section 4(1) of the Act the
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Government merely takes possession of the land but
the title thereof continues to vest with the
landowner. It is fully open for the landowner to
recover the possession of his land by taking
appropriate legal proceedings. He is therefore,
only entitled to get rent or damages for use and
occupation for the period the Government retains
possession of the property. Where possession is
taken prior to the issuance of the preliminary
notification, in our opinion, it will be just and
equitable that the Collector may also determine the
rent or damages for use of the property to which the
landowner is entitled while determining the
compensation amount payable to the landowner for
the acquisition of the property. The provisions of
Section 48 of the Act lend support to such a course
of action. For delayed payment of such amount
appropriate interest at the prevailing bank rate may
be awarded."
Thus, it is clear that where the possession is taken prior to the issuance
of Section 4 Notification, it has been held to be just and equitable that
the Collector should determine and pay the rent or damages for use of
the property to the land owner. In the present case, the Collector has not
paid any rent or damages for a period of about one month on account of
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taking of possession before issuance of Section 4 Notification. As stated
hereinabove, that period involved in the present case is of about one
month and hence, it has hardly any impact while determining the market
value. We do not propose to interfere with the Judgment and Award
passed by the District Judge in relation to the payment of sum by way of
interest for a period of about one month prior to the issuance of
Notification under Section 4(1), as in our opinion, the said amount
would represent the rent and/or damages, which the claimants would be
entitled to.
6. It is next submitted by the learned Counsel for the appellant
that the sale instances relied upon by the claimants are subsequent to the
issuance of Section 4 Notification and hence ought not to have been
considered. This issue has been addressed by the Supreme Court in the
case of Karan Singh and others vs. Union of India, reported in 1997(8)
SCC 186. In para 5 of the Judgment, the Supreme Court has observed
thus :
"... When a land is compulsorily acquired, what is
basically required to be done for awarding
compensation is to arrive at the market value of the
land on the date of the notification under Section 4
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of the Act. The market value of a piece of land
for determining compensation under Section 23 of
the Act would be the price at which the vendor and
the vendee (buyer and seller) are willing to sell or
purchase the land. The consideration in terms of
price received for land under banafide transaction
on the date of notification issued under Section 4
of the Act or a few days before or after the issue of
notification under Section 4 of the Act generally
shows the market value of the acquired land and
the market value of the acquired land has to be
assessed in terms of those transactions. The sale
of land on or about the issue of notification under
Section 4 of the Act is stated to be the best piece
of evidence for determining the market value of
the acquired land."
Thus, a transaction immediately preceding or succeeding would afford a
good guidance to determine the market value of the acquired land.
Perusal of the evidence also shows that the appellant did not object to the
bonafides of the said transactions. Thus the sale instances will have to
be presumed to be benafide, more so in the absence of filing of the
written statement and/or examination of any witness by the State.
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7. The Reference Court for determining as to in which
category the given land falls such as Bagayat or Jirayat, it has relied
upon the nature of the crops, having regard to the crop entries in the
revenue record. The agricultural lands wherein Jawar, Bajari etc. are
shown to have been cultivated, such lands have been treated as Jirayat
lands; whereas lands wherein sugarcane, onion, groundnuts etc., are
cultivated by irrigation, such lands have been treated as Bagayat lands.
We do not find anything wrong with the classification of lands into
Bagayat and Jirayat.
8. Taking overall view of the matter, we do not find any reason
to interfere with the Judgment and Award passed by the Reference
Court. The learned Counsel for the appellant has not brought to our
notice any perversity in the Judgment and Award impugned. A possible
view of the matter has been taken by the Court below and thus, we are
not inclined to interfere with the Award under challenge.
Though we have heard Appeal No. 1033/99 arising out of
Land Reference No.19/95 along with present appeals, we have
separated the same. The said appeal be listed for hearing afresh.
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9. In the result, the appeals are dismissed with no order as to
costs.
In view of the dismissal of the appeals, all pending
applications are also dismissed.
ig CHIEF JUSTICE
A.P. DESHPANDE,
ssm
