Bombay High Court
Mah.Industrial ... vs Shri Prabhakar Nanaji Diwase & 6 ... on 21 November, 2015
Bench: Ravi K. Deshpande
1 fa253.01.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 253 OF 2001
WITH
CROSS OBJECTION NO. 3 OF 2007
Maharashtra Industrial Development Corporation,
having its Office at Udyog Bhavan, Civil Lines,
Nagpur, through its Regional Officer ...... APPELLANT
Org.Deft No.2
ig ...VERSUS...
1] Shri Prabhakar Nanaji Diwase,
aged about 43 years, Occ. Service,
2] Shri Vijay Nanaji Diwase,
aged about 41 years, Occ. Service,
3] Shri Bhaskar Nanaji Diwase,
aged about 38 years, Occ. Agriculturist/Advocate,
4] Shri Jayant Nanaji Diwase,
aged about 31 years, Occ.
5] Smt. Leelabai wd/o Nanaji Diwase,
aged about 61 years, Occ. Household,
6] Sou. Mangala K. Potey,
aged about 33 years, Occ. Household,
R/o. Nandanwan Layout, Nagpur. (org. Claimants)
7] The State of Maharashtra,
through the Collector,
Chandrapur. (Org.Deft No.1)
RESPONDENTS
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Shri M.M.Agnihotri, counsel for appellant
Dr. Anjan De, counsel for Respondent nos. 1 to 6
Ms. A.R.Taiwade, AGP for Respondent No.7
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2 fa253.01.odt
CORAM: R. K. DESHPANDE, J.
DATE OF RESERVING THE JUDGMENT: 18.11 2015.
DATE OF PRONOUNCING THE JUDGMENT :21.11.2015.
JUDGMENT
1] This appeal has been preferred by the
Maharashtra Industrial Development Corporation, Nagpur,
the acquiring body, challenging the judgment and order dated
22.12.2000, passed by the learned Civil Judge, Senior
Division, Chandrapur, in Land Acquisition Case No. 113 of
1995, enhancing the compensation for acquisition of the land
i.e. Survey No. 288, admeasuring 3.15 HR from Rs. 55,000/-
per hectare to Rs. 3,00,000/- per hectare. The claimants
have also filed Cross Objection No. 3 of 2007 for claiming
further enhancement of compensation at the rate of Rs.100/-
per sq.mtr . Hence, both the matters are heard together.
2] The facts of the case are as under;
The notification under Section 32(2) of the
Maharashtra Industrial Development Act, 1961 (hereinafter
referred to as "the said Act"), which is equivalent to Section 4
of the Land Acquisition Act was issued on 04.02.1992 for
acquisition of Survey No. 288, admeasuring 3.15 HR owned
3 fa253.01.odt
by the claimants. The notification under Section 32(1) of the
said Act which is equivalent to Section 6 notification under
the Land Acquisition Act was issued on 27.03.1993. The
Land Acquisition Officer passed an award on 10.01.1995
offering market price of Rs.55,000/- per hectare. The
claimants not being satisfied with it, preferred reference
under Section 34 of the said Act read with Section 18 of the
Land Acquisition Act on 31.07.1995 claiming enhancement of
compensation on the basis of the Government Resolution
dated 31.10.1994 at Exh.26 and the Ready Reckoner at
Exh.25, the market price at the rate of Rs.100/- per sq.mtr as
fixed by the Government for the purposes of imposition of
stamp duty under the Stamps Act.
3] In support of the claim, one of the claimants
namely Bhaskar Nanaji Diwase has entered the witness-box
and deposed. He was cross examined by the learned District
Government Pleader appearing for and on behalf of the State
Government. After his cross examination was over, the
appellant - acquiring body was joined as party respondent in
the said reference. Apart from the Government Resolution at
Exh. 26 dated 31.10.1994, 7/12 extract was produced on
4 fa253.01.odt
record at Exh.41; Ready-reckoner relied upon was produced
at Exh. 25 and the revenue maps prepared by Patwari were
placed on record as Exhs. 29 to 31. No other witness was
examined by the claimants and the State Government also
did not lead any evidence. The appellant - acquiring body
claims that no opportunity was given to it either for filing
written statement or to cross examine the claimants and to
produce the other witnesses.
4] The reference Court recorded the finding that
though the contention of the claimant is that, the land in
question was having non-agricultural potentiality, there are
no documents placed on record to support this contention.
It is the finding recorded that Exh. 30 which is the revenue
map showing location of the suit land clearly shows that the
suit land is not abutting Nagpur-Chandrapur Road and it is
located in interior. The reference Court further recorded the
finding that from the oral evidence of the claimants, it is
apparent that the suit land is having non-agricultural
potentiality, though it is an agricultural land. The reference
Court further recorded the finding that not even a single sale
instance is produced on record in respect of any land
5 fa253.01.odt
adjacent to the suit land, but the sole reliance is upon the
Ready-reckoner at Exh. 25. Though the Ready-reckoner
reflects the market value of the land at the rate of Rs.100/-
per sq.mtr, the reference Court has not granted the said rate
and it has held that the Ready-reckoner at Exh.25 cannot
taken into consideration while deciding the market value.
5] The point for determination which arises in the
present case are;
(I) Whether the reference Court was justified in
enhancing the compensation for acquisition of
the land in question from Rs.55,000/- per
hectare to Rs. 3,00,000/- per hectare? And
(II) Whether the claimants are entitled to further
enhancement of compensation at the rate of
Rs.100/- per sq.mtr in terms of the Government
Resolution dated 31.10.1994 at Exh. 26 along
with the Ready-reckoner at Exh. 25?
6] Before dealing with the points for determination,
a preliminary objection raised by Dr. Anjan De, the learned
counsel appearing for the claimants need to be decided.
Dr.Anjan De, the learned counsel has invited my attention to
sub-section (5) of Section 32 of the said Act, which is
reproduced below.
6 fa253.01.odt
32(5) - Where any land is vested in the State
Government under sub-section (4), the State
Government may by notice in writing, order any
person who may be in possession of the land to
surrender or deliver possession thereof to the State
Government or any person duly authorised by it in this
behalf within thirty days of the service of the notice.
He submits that unless there is a transfer of the land by the
State Government in favour of the acquiring Body i.e. M.I.D.C
in terms of sub-section (5) of Section 32 reproduced above,
the appellant M.I.D.C has no locus either to prefer an appeal
or to be a party in the reference proceedings under Section
34 of the said Act, as there is nothing to show such transfer.
He submits that the entire amount of compensation has been
paid or is to be paid by the State Government. He further
submits that even if the acquisition is for the purposes of the
appellant M.I.D.C, the payment is to be made by the State
Government and therefore, the appellant cannot be said to
be a person aggrieved.
7] The learned Single Judge of this Court (Shri
Z.A.Haq, J), has dealt with this question in First Appeal No
177 of 2000, decided on 12.03.2015 (The Deputy Chief
Executive Officer, M.I.D.C vrs. Ms. Modern Pottery
7 fa253.01.odt
Industries and two others). It is held in the said decision that
in terms of sub-section (2) of Section 25 of the said Act, the
Corporation may contribute such sum as it thinks fit towards
the expenses incurred or to be incurred by any local authority
or statutory public undertaking in the performance, in relation
to any of its industrial estates or industrial areas, of any of the
statutory functions of such authority or undertaking, including
expenditure incurred in the acquisition of the land. The
acquisition, in the present case is at the instance of the
appellant Corporation and the amount of compensation is
required to be paid by the appellant Corporation. In response
to the order dated 17.10.2001, the appellant Corporation has
deposited 100% of the amount of award passed by the
reference Court, which is to the tune of Rs.18,48,690/-. In
such a situation, the judgment cited supra holds that the
appeal is maintainable at the instance of the appellant
M.I.D.C. It cannot, therefore, be said that the appellant
Corporation is not a person aggrieved by enhancement of the
award. The preliminary objection is, therefore, rejected.
8] Section 33 of the said Act deals with the
compensation and sub-section (5) therein being relevant, are
8 fa253.01.odt
reproduced below ;
33(5) - In determining the amount of compensation,
the Collector shall be guided by the provisions
contained in sections 23 and 24 and other relevant
provisions of the Land Acquisition Act, 1894, subject to
the modifications that the references in the said
sections 23 and 24 to the date of the publication of the
notification under section 4, sub-section (1), were
references to the date of the service or publication of
the notice under sub-section (2) of section 32 of this
Act in the manner for the time being laid down under
this Act, and the references to the time or date of the
publication of the declaration under section 6 were
references to the date of the publication of the notice
ig under sub-section (1) of section 32 of this Act in the
Official Gazette.
[Explanation - For the purpose of this sub-section the
date of the service of a notice under sub-section (2) of
section 32 of this Act shall before the 8 th day of June
1967 mean the date on which the notice is served in
the manner laid down in section 52 of this Act, and on
and after the 8th day of June 1967 the date of the
publication of a notice under the said sub-section (2)
of section 32 shall be the date on which the notice is
published in the Official Gazette.
It is thus apparent that in determining the amount of
compensation under the provisions of the said Act, the
Collector has to be guided by the provisions contained in
sections 23 and 24 of the Land Acquisition Act, subject to the
modifications that the references in the said sections 23 and
24 to the date of the publication of the notification under
section 4, sub-section (1), were references to the date of the
service or publication of the notice under sub-section (2) of
Section 32 of the said Act. It is, therefore, apparent that the
9 fa253.01.odt
reference Court has to determine the market value of the
land under acquisition as contemplated by sub-section (1) of
Section 23 of the Land Acquisition Act.
9] Undisputedly, in the present case, it is neither
the method of capitalization of income nor the method of sale
instances has been adopted for determining the market value
of the land in question. It is also not the acquisition by way of
agreement between the State Government or the
owner/claimants. Except the bare statement of the sole
witness examined by the claimants, there is nothing on
record to show that the land in question bears potentiality of
non-agricultural land and this is the finding recorded by the
reference Court in the judgment impugned. I have gone
through the revenue map at Exh. 30 produced by the
claimants. The map does not show any development
surrounding the land in question which is Survey No. 288.
The finding of the reference Court that Survey No. 288 is not
abutting Nagpur-Chandrapur road and it is located in interior
area has not been challenged. The persons who have
prepared the revenue maps placed on record have not been
examined. The witness examined by the claimants clearly
10 fa253.01.odt
states that the land in question was a fertile land having
reach potentiality to produce cotton, tilli, udid, mug, wheat
and other crops. The statement in the deposition of this
witness that there is a Depot of India Oil Corporation and a
Cement Plant known as Vidarbha Product, Railway Station
Morba, Urja Gram, W.C.L. and Shivaji Soyabin Plant, is not
at all corroborated by any documentary or oral evidence on
record. The reference Court has, therefore, committed an
error in holding that the oral evidence of the claimant shows
that the suit land is having non-agricultural potentiality,
though it is an agricultural land not converted for non-
agriculture purpose.
10] Dr. Anjan De, the learned counsel appearing for
the claimant has relied upon the decision of the Apex Court in
the case of Lal Chand vrs. Union of India and Anr reported in
2009 (15) SCC 769. The appellant in the said decision relied
upon the notification dated 21.01.1981 issued by the Land
Division of Government of India, Ministry of Works and
Housing, notifying the Schedule of Market Rates of land in
different parts of Delhi and various outlying areas , showing
the minimum rates of Rs.400 per sq. yard for residential and
11 fa253.01.odt
Rs. 800 per sq. yard for non-residential plots.
11] The question involved in the aforesaid decision
was whether the said notification could be relied upon for
determining the market value in regard to the acquisition of
land. The Court also noted that there is some confusion as
to whether such basic rates / guideline value / minimum
registration value rates could form the basis for determining
the market value. The Court proceeds to deal with this
aspect of the matter in paras 16 and 17 of the judgment,
which are reproduced below;
"16. It should however be noted that as contrasted
from the assessment of market value contained in
non-statutory Basic Value Registers, the position may
be different, where the guideline market values are
determined by Expert Committees constituted under
the State Stamp Law, by following the detailed
procedure laid down under the relevant rules, and are
published in the State Gazette. Such state stamp Acts
and the Rules thereunder, provide for scientific and
methodical assessment of market value in different
areas by Expert Committees. These statutes provide
that such committees will be constituted with officers
from the Department of Revenue, Public Works,
Survey & Settlement, Local Authority and an expert in
the field of valuation of properties, with the sub-
registrar of the sub-registration district as the member
secretary. They also provide for different methods of
valuation for lands, plots, houses and other buildings.
They require determination of the market value of
agricultural lands by classifying them with reference to
soil, rate of revenue assessment, value of lands in the
vicinity and locality, nature of crop yield for specified
number of years, and situation (with reference to
roads, markets etc.). The rates assessed by the
committee are required to be published inviting
12 fa253.01.odt
objections/suggestions from the members of public.
After considering such objections/suggestions, the
final rates are published in the Gazette. Such
published rates are revised and updated periodically.
When the guideline market values, that is, minimum
rates for registration of properties, are so evaluated
and determined by expert committees as per statutory
procedure, there is no reason why such rates should
not be a relevant piece of evidence for determination
of market value. One of the recognized methods for
determination of market value is with reference to
opinion of experts. The estimation of market value by
such statutorily constituted expert committees, as
expert evidence can therefore form the basis for
determining the market value in land acquisition
cases, as a relevant piece of evidence. It will be
however open to either party to place evidence to
ig dislodge the presumption that may flow from such
guideline market value. We however hasten to add
that the guideline market value can be a relevant
piece of evidence only if they are assessed by
statutorily appointed Expert Committees, in
accordance with the prescribed assessment
procedure (either street-wise, or road-wise, or area-
wise, or village-wise) and finalized after inviting
objections and published in the Gazette. Be that as it
may. We have referred to this aspect only to show
that there are different categories of Basic Valuation
Registers in different states and what is stated with
reference to the stamp law in Andhra Pradesh or Uttar
Pradesh, may not apply with reference to other states
where state stamp laws have prescribed the
procedure for determination of market value, referred
to above.
17. In this case, there is nothing to show the circle
rates have been determined by any statutorily
appointed committee by adopting scientific basis.
Hence, the principle in Jawajee Naganatham will
apply and they will not be of any assistance for
determining the market value. Further, they do not
purport to be the market value for lands in rural areas
on the outskirts of Delhi, nor the market values
relating to Rithala village. The circle rates relate to
urban/city areas in Delhi and are wholly irrelevant.
Whether the award relating to acquisition on
24.10.1961 is relevant".
12] In terms of the aforesaid decision of the Apex
13 fa253.01.odt
Court, the estimation of market value by statutorily
constituted expert committees, as expert evidence can only
to form the basis for determining the market value in land
acquisition cases, as a relevant piece of evidence. It is made
further clear in the said decision that the guideline market
value can be a relevant piece of evidence only if they are
assessed by statutorily appointed Expert Committees, in
accordance with the prescribed assessment procedure
(either street-wise, or road-wise, or area-wise, or village-
wise) and finalized after inviting objections and published in
the Gazette. The Apex Court has further held in the facts of
the case before it, that there is nothing to show that the circle
rates have been determined by any statutorily appointed
committee by adopting scientific basis and therefore, it is held
that the said guidelines will not be of any assistance for
determining the market value.
13] In the present case, the burden was upon the
claimants to establish that the compensation claimed by them
at the rate of Rs.100/- per sq.mtr represents the true and
correct market value. There is absolutely no evidence
brought on record to show that the Ready-reckoner at Exh.25
14 fa253.01.odt
was prepared by a statutorily constituted expert committee in
accordance with the procedure prescribed under any statute
after inviting the objections. It is also not the averment either
in the reference under Section 34 of the said Act or under
Section 18 of the Land Acquisition Act that the rate of
Rs.100/- per sq.mtr prescribed under the Ready-reckoner at
Exh.25 represents the true, correct and bonafide market
value in respect of land Survey No. 288 in question.
14] Dr. Anjan De, the learned counsel appearing for
the claimants has invited my attention to the copy of the
order dated 09.08.1986 passed by the Tahsildar,
Chandrapur, at Exh. 32 to urge that Survey No. 291/2
adjacent to the land in question was converted for non-
agricultural purpose. There is evidence brought on record to
show that Survey No. 291/2 is located at village Tadali and it
is located on Nagpur-Chandrapur Highway, whereas the land
in question, which is survey No. 288 is located at the distance
of 1 Km., in interior from the Highway. The reference Court
has also not relied upon this instance of land Survey No.
291/2 for the purposes of enhancement of compensation.
15 fa253.01.odt
15] The claimants have failed to establish that the
price of the land at Rs.100/- per sq. mtr specified in Ready-
reckoner at Exh. 25 represents the true and correct market
value of the land. There is no evidence on record in the form
of sale instances to substantiate the claim for enhancement
of compensation from Rs.55,000/- per hectare to
Rs.3,00,000/- per hectare. There is no evidence brought on
record to show that the land in question bears non-
agricultural potentiality. On the contrary, the evidence on
record shows that it is a fertile land under cultivation. The
finding recorded by the reference Court that the claimants are
entitled to enhancement of compensation at the rate of
Rs.3,00,000/- per hectare is not based upon any evidence.
The reference Court ought to have rejected the claim for
enhancement of compensation. In view of this, there is no
question of claimants being entitled to enhancement of
compensation.
16] In the result, the first appeal is allowed. The
judgment and order dated 22.12.2000 passed by the Civil
Judge, Senior Division, Chandrapur, in Land Acquisition
Case No. 113 of 1995 is hereby quashed and set aside. The
16 fa253.01.odt
Reference is dismissed. Consequently, the Cross Objection
No. 3 of 2007 filed by the claimants does not survive and it is
rejected. No orders as to cost.
The appellant has deposited the amount in this
Court, which is permitted to be withdrawn along with the
interest accrued thereon.
ig JUDGE
Rvjalit
