M.S.E.B.Thru ... vs Prabhuappa Sivanappa Garthe And ...
2016 Latest Caselaw 5115 Bom

                                         1                    FA NO.570/1998

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                       BENCH AT AURANGABAD

                            FIRST APPEAL NO.570 OF 1998




                                               
      Maharashtra State Electricity
      Board (Now MSEDCL)




                                              
      Through the Executive Engineer
      (Civil), Osmanabad,
      District Osmanabad.                                =        APPELLANT




                                      
               VERSUS


      1)
                             
               Prabhuappa s/o Sivanappa Garthe
                            
               (Died through his L.rs.)


      1-A) Smt.Shobha w/o Arun Garthe,
               Age: 50 Yrs., occu. Household,
      
   



      1-B) Sagar s/o Arun Garthe,
               Age:25 Yers., occu. Education.





      1-C) Rajabhau s/o Prabhuappa Garthe,
               Age:53 Yrs., occu. Agril.


      1-D) Sudhir s/o Prabhuappa Garthe,





               Age: 50 yrs., occu. Agril.


      1-E) Narendra s/o Prabhuappa Garthe,
               Age: 43 Yrs., occu. Agril.


               All R/o Ghatnandur, 
               Tq.Ambejogai, Dist. Beed.




    ::: Uploaded on - 03/09/2016               ::: Downloaded on - 04/09/2016 00:38:14 :::
                                              2                      FA NO.570/1998

      2)       The State of Maharashtra 




                                                                             
               Through the Collector,
               Latur.                                 =        RESPONDENTS 




                                                     
                                        -----
      Mr. S.M.Godsay,Advocate for Appellant;
      Mr. S.V.Warad, Advocate for Respondent No.1;




                                                    
      Mr. SP Deshmukh, AGP for Respondent No.2.
                                        -----
                                   CORAM :  P.R.BORA, J.

DATE :

31 st

August,2016.

ORAL JUDGMENT:

1) Heard learned Counsel for parties.

2) The appellant has filed the present

appeal challenging the judgment and order dated

19th December, 1997 passed by Civil Judge, Senior

Division, Latur in LAR No.712/1991. The

aforesaid reference application was filed by the

present respondents for claiming enhancement in

the amount of compensation as awarded by the

Special Land Acquisition Officer.

3) It is not in dispute that the land of

the respondents was acquired for the purpose of

3 FA NO.570/1998

erection of 33 KV sub-station at Village Kingaon,

Tq. Ahmedpur. The land admeasuring 1 hectare and

10 Ares owned by the present respondents was

acquired. A notification under Section 4 of the

Land Acquisition Act, 1894 ( for short, the Act)

was published on 12th January, 1986; whereas Award

under Section 11 of the Act came to be passed on

31st May, 1989. The material on record shows that

the possession of the acquired land was taken

prior to issuance of Section 4 Notification by

way of private negotiations. The Special Land

Acquisition Officer, after having considered the

sale-instances and by visiting the acquired land

and by performing all other formalities, offered

the rate of Rs.3.47 ps per sq.ft. and accordingly

determined the amount of compensation.

4) Dissatisfied with the amount so offered,

the respondents approached the Collector, Latur

by way of filing Reference Application under

Section 18 of the Act, which was in turn

forwarded for adjudication to the Civil Court at

4 FA NO.570/1998

Latur.

5) The learned Reference Court, after

having assessed the evidence oral as well as

documentary, brough before it, determined the

market value of the acquired land @ Rs.7/- per

sq.ft. Excluding 25% of the land from the total

acquired land, presuming that the same would have

been utilized for the purpose of road and other

amenities if the a cquired land would have been

converted for non-agricultural use, awarded the

compensation for the 75% of the acquired land @

Rs.7/- per sq.ft. Aggrieved by the Award so

passed, the acquiring body has filed the present

appeal.

6) Shri Godsay, learned Counsel appearing

for the appellant, assailed the judgment on two

grounds, viz. i) that the acquiring body was not

properly represented before the Reference Court

and ii) as about the amount of compensation, as

awarded by the Reference Court.

                                         5                     FA NO.570/1998

      .                The leaned Counsel submitted that before 




                                                                       

the Reference Court, the Reference application

was prosecuted by Asstt. Govt. Pleader and

virtually there was no representation from the

side of the acquiring body. The learned Counsel,

relying on the judgment in the case of Agra

Development Authority Vs. Special Land

Acquisition Officer and Ors. - (2001) 2 SCC 646,

submitted that in such circumstance, the only

option available is to remit the matter back to

the trial court for hearing it afresh by giving

appropriate opportunity to the acquiring body to

put forth its case and contest the matter on

merits.

7) The learned Counsel further submitted

that though from the record it is appearing that

the Executive Engineer of the appellant/Board has

made certain submissions, the question would be

the admissions, given by the Executive Engineer,

whether would bind the appellant/Board. The

learned Counsel, therefore, prayed for remand of

6 FA NO.570/1998

the matter.

8) The second objection, which has been

raised on behalf of the appellant is in respect

of the market value as determined by the learned

Reference Court. The learned Counsel submitted

that without there being any cogent and

sufficient evidence, the Reference Court has

awarded the rate of Rs.7/- per sq.ft. for the

acquired land. The learned Counsel submitted

that the sale-instances, which have been relied

upon by the Reference Court, are pertaining to

the small pieces of land, which were already

converted for non-agricultural use. The learned

Counsel submitted that the land acquired of the

respondents was admittedly non-agricultural land,

and as such, the sale-instances cannot be said to

be comparable sale instances and could not have

been relied upon by the Reference Court while

determining the market value of the acquired

land. The learned Counsel, therefore, submitted

that on this count also the impugned judgment

7 FA NO.570/1998

cannot be sustained and deserves to be set

aside, if the court is not inclined to remit the

matter back for fresh consideration.

9) Shri Warad, learned Counsel appearing

for the respondents/original claimants, opposed

the submissions made on behalf of the appellant.

The learned Counsel submitted that the claimants

had taken all necessary precautions in bringing

on record the acquiring body as a party

respondent. The learned Counsel invited my

attention to the application at Exhibit-19,

submitted by the claimants before the Reference

Court with a prayer that the Maharashtra State

Electricity Board, through Executive Engineer,

Osmanabasd, be added as party respondent to the

Reference proceedings. The learned Counsel

further brought to my notice the say filed by the

Executive Engineer, Osmanabad to the said

application, who was served with a notice of the

said application. In the reply so filed, the

Executive Engineer, Osmanabad has in clear words

8 FA NO.570/1998

stated that M.S.E.B. may not be a necessary party

to the said proceedings since it is bound to obey

the decision of the Court and if the Collector

directs to make payment, the MSEB would be making

payment under the orders of the Collector. The

learned Counsel further brought to my notice the

order passed below the said application and

submitted the objections raised in this regard

are unsustainable and it cannot be said that

there was no proper representation of the

acquiring body in the Reference Court.

10) In so far as the determination of the

market value of the acquired land is concerned,

the learned Counsel submitted that ample evidence

was brought on record by the claimants in order

to substantiate the contentions raised by them in

the Reference Application. The learned Counsel

invited my attention to the sale-deeds, duly

proved by bringing on record the necessary

evidence in that regard, which are at Exh.32 and

33. The learned Counsel submitted that the said

9 FA NO.570/1998

sale instances were of the period prior to

issuance of the notification under Section 4 of

the Act and were of the adjacent lands. The

learned Counsel further brought to my notice the

value received to the agricultural lands which

were the subject matter of the said sale-deeds,

one was sold at the rate of Rs.7.14 ps per sq.ft.

and in another the consideration was received at

the rate of Rs.7.34 ps per sq.ft. The learned

Counsel thereafter brought to my notice the

discussion made by the Reference Court and

submitted that the Reference Court has taken all

precautions to deduct the amount, which may be

required to be spent for development of the

acquired land, if at all it is to be converted

into NA purpose and has accordingly though has

determined the market value of the land @ Rs. 7/-

per sq.ft., has dis-entitled the claimants to

receive the said rate for whole of the acquired

land and has observed that the said compensation,

as determined by the Reference Court will be

applicable only to 75% of the acquired land.

10 FA NO.570/1998

The learned Counsel submitted that no

interference is, therefore, required in the

market value so determined by the Reference

Court. The learned Counsel hence prayed for

dismissal of the appeal.

11) I have carefully considered the

submissions advanced by the learned Counsel

appearing for the respective parties. Though it

was vehemently argued by Shri Godsay, learned

Counsel appearing for the appellant/Board that

there was no proper representation of the

acquiring body before the Reference court, the

submission so made cannot be accepted in view of

the evidence on record. Considering the contents

and the prayer made in the application filed at

Exh.19 by the claimant and having regard to the

say submitted to the said application at Exh.20

by the Executive Engineer, MSEB, Osmanabad, it

does not appear to me that the appellant can

raise the objection that the impugned judgment is

bad in law as because the appellant was not made

11 FA NO.570/1998

party-respondent in the said matter. Further,

considering the material on record, there

remains no doubt that the acquiring body was duly

represented before the Reference Court. I,

therefore, do not find any merit in the objection

so raised.

12) Now, about the other objections in

regard to the determination of the market value

of the acquired lands by the Reference Court.

Though it has been contended by the learned

Counsel appearing for the appellant that the

Reference Court has fixed the market value

arbitrarily and on higher side, the evidence on

record does not support the contention so raised.

Sufficient evidence is available on record

evidencing that the acquired land was surrounded

with the fully developed commercial area and was

thus having N.A. Potentiality. The District Town

Planner viz. Madhusudan Chintamanrao Kapalay, who

was examined as a witness by the appellant, has

also admitted in his testimony before the Court

12 FA NO.570/1998

that the acquired land was was bearing N.A.

Potentiality and that the area around the

acquired land was fully developed as commercial

area.

13) The material on record further shows

that the sale instances, which were brought on

record by the claimants were of the lands

adjacent to the acquired land. The Reference

Court has, therefore, rightly held the said sale

instances comparable and on the basis of the

value received to the lands, which were the

subject matter of the concerned sale deed, has

determined the market value of the acquired land.

The discussion made by the Reference Court

transpires that the Reference Court has

objectively assessed the evidence and more

particularly the evidence in the form of sale

instances.

14) The objection raised on behalf of the

appellant that the consideration, which was

13 FA NO.570/1998

received to the lands, which were the subject

matter of the sale instances brought on record

could not have been awarded to the acquired lands

since the acquired land is an agricultural land,

though may be having N.A. Potentiality, and the

lands in the sale instances were non-agricultural

lands converted into residential or commercial

plots, may also not sustain for the reason that

the Reference Court has considered the said

aspect also while awarding the amount of

compensation. The Reference Court has not

awarded the compensation @ Rs.7/- per sq.ft for

the whole of the acquired land. The Reference

Court has awarded compensation at the aforesaid

rate only to the 75% of the acquired land taking

into account the fact that the development

charges will be equivalent to the value of the

25% of the acquired land. It, therefore, cannot

be said that the Reference Court has blindly

awarded the same rate which was received to the

N.A. Plots to the acquired agricultural lands.

                                        14                     FA NO.570/1998

      15)              After   having   considered   the   entire 




                                                                       

material on record, there appears no merit in the

appeal so filed and the same deserves to be

dismissed. It is accordingly dismissed without

any order as to costs.

16) The respondents are permitted to

withdraw the amount of compensation deposited by

the Appellant/Board in this Court, if not already

withdrawn.

17) There may not be any difficulty for the

Registry to hand over a cheque of the aforesaid

amount to the counsel appearing for the

respondents, if such authority, in writing, is

given by the original claimants to the counsel

for respondents, and if such request is made by

the counsel, in writing, to the Registry of this

Court.

sd/-

(P.R.BORA) JUDGE bdv/