Bombay High Court
State Of Mah.Thr.Spl.Land ... vs Dr.Purushottam Dattulal ... on 21 November, 2015
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
First Appeal No.173 of 2002,
First Appeal No.240 of 2003
And
First Appeal No.230 of 2006
First Appeal No.173 of 2002
Dr. Purushottam Dattulal Paldiwal,
R/o Paldiwal Hospital,
Giripeth, Amravati Road,
Nagpur-440 010. ig ... Appellant/
Ori. Claimant
Versus
1. State of Maharashtra,
through Special Land Acquisition
Officer, and Sub-Divisional Officer,
Khamgaon, Dist. Buldhana.
2. Union of India,
through Telecom District Engineer,
Buldhana, Tank Road,
Khamgaon, Dist. Buldhana. ... Respondents/
Ori. Respondents on
R.A.
Shri R.M. Bhangde, Advocate for Appellant.
Shri. N.S. Khubalkar, Assistant Government Pleader for Respondent
No.1.
First Appeal No.240 of 2003
State of Maharashtra,
through Special Land Acquisition
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Officer, Sub-Divisional Officer,
Khamgaon, Distt. Buldhana. ... Appellant/
Ori. Respondent on
R.A.
Versus
1. Dr. Purushottam Dattulal Paldiwal,
R/o Paldiwal Hospital, Giripeth,
Amravati Road, Nagpur.
2. Union of India, through Telecom
District Engineer, Buldhana,
Tank Road, Khamgaon,
Distt. Buldhana. ig ... Respondents/
Ori. Petitioner on
R.A.
Ms Tajwar Khan, Assistant Government Pleader for Appellant.
Shri R.M. Bhangde, Advocate for Respondent No.1.
First Appeal No.230 of 2006
Bharat Sanchar Nigam Ltd.,
through its Sub-Divisional Officer (Legal),
Office of General Manager, Telecom,
Buldana at Khamgaon,
Tq. Khamgaon, District Buldana. ... Appellant
Versus
1. State of Maharashtra,
through Secretary,
Government of Maharashtra,
Department of Revenue,
Mantralaya, Mumbai-400 032.
2. Dr. Purushottam Dattulal Paldiwal,
Paldiwal Hospital, Giripeth,
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Nagpur. ... Respondents
Smt. A.R. Taywade, Assistant Government Pleader for Respondent
No.1.
Shri R.M. Bhangde, Advocate for Respondent No.2.
Coram : R.K. Deshpande, J.
Date of Reserving the Judgment : 17-11-2015.
Date of Pronouncing the Judgment : 21-11-2015.
Judgment :
1. All these appeals are concerned with the compensation in
respect for release of 8,000 sq.mtrs. of land (which is equivalent to
approprimately 4 acres) out of Survey No.291/3, situated at
Shegaon, from acquisition, under Section 48 of the Land Acquisition
Act, which shall hereinafter be called as "the land in question". The
land in question was reserved in the draft development plan
sanctioned under sub-section (1) of Section 31 of the Maharashtra
Regional & Town Planning Act, 1966 by issuing the notification
on 31-8-1976 in the official gazette for the purposes of Telecom
Exchange Building with an expectation that it shall be acquired
within a period of ten years therefrom, expiring on 31-8-1986.
Accordingly, a notification under sub-section (4) of Section 126 of
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the Maharashtra Regional & Town Planning Act for acquisition of the
land in question was issued on 6-7-1986. Though the draft award
was prepared on 11-5-1987, by an order dated 28-7-1988 issued
under Section 48 of the Land Acquisition Act, 1896, the proceedings
for acquisition of land in question were withdrawn.
2. The owner of the land in question was granted
compensation under Section 48 of the Land Acquisition Act by the
Sub-Divisional Officer under his award dated 31-1-1990, and it was
to the tune of Rs.4,69,206 under the different heads, which are
specified below :
I Total loss of income on the land. Rs.3,62,751/-
II Taxi Charges. Rs. 19,840/-
B Loss of income of surgical practice. Rs. 32,565/-
C Valuers and Architect Fees. Rs. 23,500/-
D Legal Advisor Fees. Rs. 19,800/-
E Measurement Fees. Rs. 500/-
F Expenses towards Xerox, Typing, Rs. 1,250/-
Photo, etc.
Rs.4,60,206/-
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3. The owner of the land in question preferred a reference
under Section 18 of the Land Acquisition Act for enhancement of the
compensation. The Reference Court granted such enhancement in
Land Acquisition Case No.17 of 1990 by its judgment and order
dated 7-1-2002. The compensation was enhanced to Rs.5,97,249/-,
payable along with interest at the rate of 9% per annum from the
date of the award till its realization. The owner has preferred First
Appeal No.173 of 2002 seeking further enhancement of
compensation, whereas the State Government has preferred First
Appeal No.240 of 2003, and the acquiring body, i.e. Bharat Sanchar
Nigam Limited, has preferred First Appeal No.230 of 2006
challenging the enhancement of compensation granted by the
Reference Court. All these appeals are tagged together and heard
finally.
4. Relying upon the provisions of sub-sections (2) and (3)
of Section 48 read with sub-sections (1-A) and (2) of Section 23 of
the Land Acquisition Act, the only points urged by Shri Bhangde, the
learned counsel appearing for the claimant are that - (i) the
Reference Court has committed an error in not awarding the
solatium, as specified in sub-section (2) of Section 23 of the said Act,
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at the rate of 30% on the compensation so fixed, (ii) the Reference
Court has committed an error in refusing to grant the compensation
for severance of the land in question, and (iii) though the Reference
Court has granted the compensation for the period from 31-8-1976
to 6-7-1986, it has erroneously reduced the rate of damage from 12%
to 10% per annum, though it was granted by the Land Acquisition
Officer in terms of sub-section (1-A) of Section 23 of the Land
Acquisition Act. Shri Bhangde, the learned counsel, has relied upon
the decision of the learned Single Judge of Punjab & Haryana High
Court in the case of Smt. Bindu Garg v. State of Haryana, reported in
1999(1) LAC 86 (P&H), and the decision of the Apex Court in the
case of Narain Das Jain, through L.Rs. v. Agra Nagar Mahapalika,
Agra, reported in (1991) 4 SCC 212.
5. The learned Assistant Government Pleaders appearing for
the State in all these appeals have refuted the contentions raised by
the learned counsel for the claimant and urged that the Reference
Court has committed an error in awarding the compensation for the
period from 31-8-1976 to 6-7-1986. They have further urged that
under sub-section (2) of Section 48 of the Land Acquisition Act, the
compensation due for the damage suffered by the claimant, is to be
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determined in consequence of the notice or of any proceedings.
According to them, "the notice" or "any proceedings" referred to
therein pertain to the notice under Section 6 of the Land Acquisition
Act, which is equivalent to the notice under sub-section (2) of
Section 126 of the Maharashtra Regional & Town Planning Act.
According to them, the Land Acquisition Officer had rightly awarded
the compensation for the period from 6-7-1986 and ignored the
period prior to it commencing from 31-8-1976. It is also urged that
in the absence of there being any evidence of the actual damage
suffered by the claimant, the Reference Court was not correct in
enhancing the compensation, as awarded.
6. Undisputedly, in the present case, the land in question
was reserved in the notification issued on 31-8-1976 under
sub-section (1) of Section 31 of the Maharashtra Regional & Town
Planning Act in the official gazette for the purposes of Telecom
Exchange Building, and there cannot be any dispute that such
notification is equivalent to the notification under Section 4 of the
Land Acquisition Act. The notification under sub-section (4) of
Section 126 of the Maharashtra Regional & Town Planning Act,
which is equivalent to the notification under Section 6 of the Land
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Acquisition Act, was issued in the official gazette in respect of the
land in question on 6-7-1986. The possession of the land in question
was not taken over, but the draft award was prepared on 11-5-1987.
The proceedings for acquisition of the land in question were
withdrawn by an order dated 28-7-1988. The present case is,
therefore, not concerned with the payment of compensation for
acquisition of the land in question, but it is concerned with the
payment of compensation under sub-section (2) of Section 48 of the
Land Acquisition Act for withdrawal of acquisition.
7. Section 48 of the Land Acquisition Act is relevant, and it
is, therefore, reproduced below :
"48. Completion of acquisition not compulsory, but
compensation to be awarded when not completed.--
(1) Except in the case provided for in section 36, the
Government shall be at liberty to withdraw from the
acquisition of any land of which possession has not been
taken.
(2) Whenever the Government withdraws from any such
acquisition, the Collector shall determine the amount of
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compensation due for the damage suffered by the owner in
consequence of the notice or of any proceedings thereunder,
and shall pay such amount to the person interested,
together with all costs reasonably incurred by him in the
prosecution of the proceedings under this Act relating to the
said land.
(3) The provisions of Part III of this Act shall apply, so
far as may be, to the determination of the compensation
payable under this section."
ig
Upon withdrawal of land from acquisition, the Collector has to
determine under sub-section (2) of Section 48, the amount of
compensation due for the damage suffered by the owner in
consequence of the notice or any proceedings thereunder and to pay
such amount to the person interested together with all costs
reasonably incurred by him in the prosecution of the proceedings
under the Act relating to the said land. In terms of sub-section (3),
the provisions of Part III of the Land Acquisition Act become
applicable so far as may be, to the determination of the
compensation payable under Section 48 of the said Act.
8. Section 23 under Part III of the Land Acquisition Act
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shall, therefore, govern the determination of the compensation under
sub-section (2) of Section 48 so far as it becomes applicable.
Section 23 of the said Act is, therefore, reproduced below :
"23. Matters to be considered in determining
compensation.--(1) In determining the amount of
compensation to be awarded for land acquired under this
Act, the Court shall take into consideration--
igfirst, the market value of the land at the date of the
publication of the notification under section 4,
sub-section (1);
secondly, the damage sustained by the person
interested, by reason of the taking of any standing crops or
trees which may be on the land at the time of the
Collector's taking possession thereof;
thirdly, the damage (if any) sustained by the person
interested, at the time of the Collector's taking possession of
the land, by reason of severing such land from his other
land;
fourthly, the damage (if any) sustained by the person
interested, at the time of the Collector's taking possession of
the land, by reason of the acquisition injuriously affecting
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his other property, movable or immovable, in any other
manner, or his earnings;
fifthly, if, in consequence of the acquisition of the
land by the Collector, the person interested is compelled to
change his residence or place of business, the reasonable
expenses (if any) incidental to such change; and
sixthly, the damage (if any) bona fide resulting from
diminution of the profits of the land between the time of
the publication of the declaration under section 6 and the
time of the Collector's taking possession of the land.
(1-A) 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 per centum 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), 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.
Explanation.--In computing the period referred to in
this sub-section, any period or periods during which the
proceedings for the acquisition of the land were held up on
account of any stay or injunction by the order of any Court
shall be excluded.
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(2) In addition to the market value of the land as
above provided, the Court shall in every case award a sum
of thirty per centum on such market value, in consideration
of compulsory nature of the acquisition."
The provisions of Section 23 to the extent applicable, become part of
sub-section (2) of Section 48 of the Land Acquisition Act, and hence
the same are required to be read together for determination of
compensation in case of withdrawal of land from acquisition.
9. In determining the amount of compensation to be
awarded for the land acquired under the Act, the Court has to take
into consideration, in terms of sub-section (1) of Section 23, the
market value of the land at the date of the publication of the
notification under Section 4, sub-section (1). In terms of
sub-section (1-A) of Section 23, in addition to the market value of
the land, as provided under sub-section (1), the Court has to in every
case award an amount calculated at the rate of 12% per annum on
such market value for the period commencing on and from the date
of the publication of the notice under Section 4, sub-section (1) in
respect of such land to the date of the award of the Collector or to
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the date of taking possession of the land, whichever is earlier. In
terms of sub-section (2) of Section 23, in addition to the market
value of the land, the Court has to in every case award a sum of 30%
on such market value in consideration of compulsory nature of
acquisition.
10. In the present case, it is not in dispute that the Land
Acquisition Officer has determined the market value of the land in
question under sub-section (1) of Section 23 of the Land Acquisition
Act at Rs.15,11,466/-. Shri Bhangde, the learned counsel for the
claimant, has made a statement, upon a specific question being put
to him, that in his appeal he is not pressing the point of
determination of the market value of the land in question at
Rs.15,11,466/-. The question of challenge to this determination of
the market value either at the instance of the acquiring body or at
the instance of the State Government, also does not arise, nor in fact
any such challenge is raised.
11. In the background of the aforesaid undisputed factual
position, the provisions of law and the rival contentions, the
following points fall for determination :
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Sr.No. Points Findings
1. Whether the claimant is entitled No
to the amount of solatium at the
rate of 30% on the market value
of the land in question,
determined at Rs.15,11,466/-, in
terms of sub-section (2) of
Section 23 of the Land
Acquisition Act?
2.
Whether the claimant is entitled No.
to the compensation on account
of severance?
3. Whether the claimant is entitled a) Yes. The claimant is
to the amount of compensation entitled.
due for the damage suffered by
him from 31-8-1976, or whether b) No. The Reference
the Reference Court has Court did not commit any
committed an error in counting error.
the period for compensation
from 31-8-1976 to 6-7-1986?
4. In the light of the provision of Yes. The claimant is
sub-section (1-A) of Section 23 entitled to the rate of
of the Land Acquisition Act, 12% per annum for
whether the Reference Court has damage.
committed an error in reducing
the rate of damage from 12% to
10% per annum?
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As to Points No.(1) and (2) :
12. In the decision of the Apex Court in the case of Narain
Das Jain, through L.Rs. v. Agra Nagar Mahapalika, Agra, cited supra,
relied upon by Shri Bhangde, the learned counsel for the claimant,
the concept of solatium has been considered. Paras 6 and 7 of the
said decision being relevant, are reproduced below :
"6.
ig Section 23(2) of Land Acquisition Act, as it then
was, provided that in addition to the market value of the
land, as provided in sub-section (1) of Section 23, the
court shall in every case award a sum of rupees fifteen per
centum on such market value in consideration of the
compulsory nature of acquisition. Solatium, as the word
goes, is "money comfort", quantified by the statute, and
given as a conciliatory measure for the compulsory
acquisition of the land of the citizen, by a welfare State
such as ours. The concern for such a citizen was voiced by
the Law Commission of India in its Report submitted in
1957 on the Need for Reform in the Land Acquisition by
observing as follows:
"We are not also in favour of omitting
Section 23(2) so as to exclude solatium of 15 per
cent for the compulsory nature of the acquisition. It
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is not enough for a person to get the market value of
the land as compensation in order to place himself in
a position similar to that which he could have
occupied had there been no acquisition, he may have
to spend a considerable further amount for putting
himself in the same position as before .... As pointed
out by Fitzgerald the community has no right to
enrich itself by deliberately taking away the property
of any of its members in such circumstances without
ig providing adequate compensation for it. This
principle has been in force in India ever since the Act
of 1870. The Select Committee which examined the
Bill of 1893 did not think it necessary to omit the
provision but on the other hand transferred it to
Section 23."
7. The importance of the award of solatium cannot be
undermined by any procedural blockades. It follows
automatically the market value of the land acquired, as a
shadow would to a man. It springs up spontaneously as a
part of the statutory growth on the determination and
emergence of market value of the land acquired. It follows
as a matter of course without any impediment. That it falls
to be awarded by the court "in every case" leaves no
discretion with the court in not awarding it in some cases
and awarding in others. Since the award of solatium is in
consideration of the compulsory nature of acquisition, it is
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a hanging mandate for the court to award and supply the
omission at any stage where the court gets occasion to
amend or rectify. This is the spirit of the provision
wherever made."
Solatium is a money comfort and given as a conciliatory measure for
the compulsory acquisition of the land of the citizen by a welfare
State. The Law Commission of India considered that it is not enough
for a person to get the market value of the land as compensation in
order to place himself in a position similar to that which he could
have occupied had there been no acquisition and, therefore, it was
thought fit in every case to award solatium in consideration of the
compulsory nature of acquisition. This principle is accepted by the
Apex Court in the aforesaid judgment and it is held that as a matter
of course, without any impediment, the solatium falls to be awarded
by the Court in every case, leaving no discretion with the Court in
not awarding it in some cases and awarding in others. Thus, the
necessary concomitant for awarding solatium is the compulsory
nature of acquisition of the land. Solatium is available only in cases
where the land has actually been acquired. If the land is released
from acquisition, the claimant does not become entitle to solatium,
as he is put in a position of "no acquisition". The contention of
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Shri Bhangde that the claimant is entitled to solatium in terms of
sub-section (2) of Section 23 is, therefore, rejected.
13. Shri Bhangde, the learned counsel for the claimant, has
invited my attention to the map at Exhibit 131 to point out that as a
result of acquisition of the land, certain portion of his remaining land
became useless, as it was earmarked for approach road to the land in
question. In view of withdrawal of land in question from acquisition,
the question of severance also does not at all arise. Hence, for the
same reasons, the claimant is neither entitled for solatium nor for
compensation for severance of the land. The contention is,
therefore, rejected.
As to Points No.(3) and (4) :
14. Relying upon the provision of sub-section (2) of
Section 48 of the Land Acquisition Act, the learned Assistant
Government Pleaders appearing for the State in all these appeals
have urged that the "notice" or "any proceedings" referred to therein
essentially means the notice under Section 6 of the said Act, which is
equivalent to the notice under sub-section (2) of Section 126 of the
Maharashtra Regional & Town Planning Act, which, in the present
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case, was issued on 6-7-1986. According to them, the Reference
Court has rightly awarded an amount calculated at the rate of
10% per annum on the market value of the land in question for the
period commencing from 6-7-1986.
15. The contention, as aforestated, cannot be accepted, for the
reason that sub-sections (2) and (3) of Section 48 have to be read
along with sub-section (1-A) of Section 23 of the Land Acquisition
Act. The provisions cannot be read in isolation. The expression "in
consequence of the notice or of any proceedings thereunder"
employed under sub-section (2) of Section 48 will have to be
construed as the notice under sub-section (1) of Section 4 of the
Land Acquisition Act, and the reference to "any proceedings" shall
have to be read as pursuant to the notice under sub-section (1) of
Section 4 of the said Act.
16. In the present case, the land in question was for the first
time reserved by issuing the notification in the official gazette under
sub-section (1) of Section 31 of the Maharashtra Regional & Town
Planning Act on 31-8-1976, which is equivalent to the notification
under Section 4 of the Land Acquisition Act. In view of this, it
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cannot be said that the Reference Court has committed an error in
counting the period from 31-8-1976 for determination of
compensation in terms of sub-sections (2) and (3) of Section 48 read
with sub-section (1-A) of Section 23 of the Land Acquisition Act.
Sub-section (1-A) of Section 23 mandates that in every case, the
Court shall award an amount calculated at the rate of 12% per
annum on the market value for the period commending on and from
the date of the publication of the notification under Section 4,
sub-section (1). The requirement is mandatory and the Reference
Court has, therefore, committed an error in reducing the rate from
12% to 10% per annum. In view of such mandate, the argument
that in the absence of there being any evidence of the actual damage
suffered by the claimant, the Reference Court was not correct in
enhancing the compensation awarded by the Land Acquisition
Officer, is rejected.
17. The next argument of the learned Assistant Government
Pleaders is that in terms of sub-section (2) of Section 48 of the Land
Acquisition Act, it is the notice under Section 6 of the said Act,
which is equivalent to the notice under sub-section (2) of
Section 126 of the Maharashtra Regional & Town Planning Act,
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which is required to be considered to determine the amount of
compensation. If such contention is accepted, then it would go
against the interests of the State and the acquiring body. The Land
Acquisition Officer as well as the Reference Court have considered
the market value of the land in question to have been fixed on the
date of issuance of the notification under Section 4 of the Land
Acquisition Act, which is equivalent to the notification under sub-
section (1) of Section 31 of the Maharashtra Town & Planning Act.
The price of the land in question would be much more higher
on 6-7-1986, i.e. the date of issuance of the notification under
Section 6 of the Land Acquisition Act, which is equivalent to the
notification under sub-section (2) of Section 126 of the Maharashtra
Town & Planning Act. In fact, the claimant has produced on record
the evidence to show the price of the land in question existing on
6-7-1986, which is much more higher than Rs.15,11,466/-,
determined by the Land Acquisition Officer and the Reference Court
as on 31-8-1976. The contention, therefore, does not deserve any
consideration.
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18. For the reasons stated above, the following order is
passed :
(I) First Appeal No.173 of 2002 is partly allowed, holding
that the Reference Court has committed an error in reducing
the rate of damage from 12% to 10% per annum. The
claimant is held entitled to damage at the rate of 12%
per annum. With this modification, First Appeal No.173 of
2002 is disposed of. No costs.
(II) First Appeals No.240 of 2003 and 230 of 2006 filed
by the State Government and the acquiring body, i.e. Bharat
Sanchar Nigam Limited, are dismissed. No costs.
JUDGE.
Lanjewar.
