Bombay High Court

Kisan Lahuji Gajbhare vs State Of ... on 7 December, 2016

Bench: S.B. Shukre

                                                1

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                            NAGPUR BENCH : NAGPUR




                                                                                   
                                                           
    First Appeal No. 438 of 2003




                                                          
    Appellants :            1)  The State of Maharashtra, through the 

                            Collector, Yavatmal




                                               
                            2) The Collector, Yavatmal
                                 
                            3) Sub-Divisional Officer & Land Acquisition

                            Officer, Darwha, District Yavatmal
                                
                            versus

    Respondent:             Kisan Lahuji Gajbhare, aged about 46 years,
          


                            Occ: cultivator and service, resident of Digras, 
       



                            District Yavatmal





    Shri K. R. Lule, Assistant Government Pleader for appellants 

    Shri M. M. Agnihotri, Advocate for respondent 





                                       -----

First Appeal No. 459 of 2003

Appellant : Kisan Lahuji Gajbhare, aged about 54 years,

Occ: cultivator, resident of Digras,

District Yavatmal

versus

Respondents: 1) The State of Maharashtra, through the

Collector, Yavatmal

2) The Collector, Yavatmal

3) Sub-Divisional Officer & Land Acquisition

Officer, Darwha, District Yavatmal

Shri M. M. Agnihotri, Advocate for appellant

Shri K. R. Lule, Asst. Government Pleader for respondents

Coram : S. B. Shukre, J

Dated : 7th December 2016

Oral Judgment

1. These appeals challenge the legality and correctness of the

judgment dated 7th March 2003 passed in Land Acquisition Case No. 236

of 1995 by the Civil Judge, Senior Division, Pusad. First Appeal No. 438

of 2003 has been filed by the State and First Appeal No. 459 of 2003 has

been filed by the claimant. While grievance of the State is that the

compensation has been enhanced by the Reference Court in an

unreasonable manner, the claimant complains that there could have been

more enhancement in granting the compensation had the market value of

the land been determined appropriately.

2. The claimant was owner of land bearing Gat No. 75 (old) or

1 (new) admeasuring 1.61 HR and 87 meters. This land was proposed to

be acquired for extension of village Gaothan of village Mandva. Section 4

Notification was issued on 28.10.1993 for acquiring the land from the

said Gat number to the extent of 1.36 HR. This was the land that was

actually acquired. The Land Acquisition Officer determined the market

value of the land to be at Rs. 28,000/- per hectare. The Land Acquisition

Officer also granted compensation for the well. Reference application No.

236 of 1995 was filed by claimant seeking enhancement of the

compensation so granted. The application was referred to the Civil Court.

3. The learned Civil Judge, SD, Pusad after considering the

evidence available on record found that the market value determined by

the Land Acquisition Officer was not consistent with the potentiality and

situation of the acquired land and, therefore, taking into account relevant

factors, determined the market value to be at Rs. 1,30,000/- per acre (Rs.

3,25,000/- per hectare). Accordingly, by the judgment and order dated

7.3.2003, learned Civil Judge, SD, Pusad allowed the Reference

Application and granted enhanced compensation, as stated above. Not

being satisfied with the same, claimant as well as the State are before this

Court in present appeals.

4. I have heard Shri K. R. Lule, Assistant Government Pleader

for the State and Shri M. M. Agnihotri, learned counsel for the claimant. I

have carefully gone through the evidence available on record as well as

the impugned judgment and order.

5. The following points arise for my determination :

Whether the market value of the land determined by the

reference Court is correct ?

(2) At what rate, the claimant is entitled to receive the

compensation ?

6. According to learned Assistant Government Pleader, there

was no evidence available on record showing that the acquired land had a

residential potential and, therefore, the sale instance vide exhibit 20

ought not to have been considered by the Reference Court while

determining market value of the acquired land. According to him, the

Reference Court has failed to take into consideration the fact that the

said sale instance is for a small piece of land and has arrived at an

erroneous conclusion.

7. Shri M. M. Agnihotri, learned counsel for the claimant

submits that consideration of sale instance vide exhibit 20 could not be

faulted with as the evidence available on record clearly showed that the

acquired land which had residential potential, is situated on the State

Highway. He submits that the Reference Court further has gone wrong

in making calculations in the sense that escalation of price was not

appropriately considered and in view of the settled law, it ought to have

been considered to be at 10% per annum. He further submits that there is

an error committed by the Reference Court in not considering the

submissions of the claimants that after acquisition of 1.36 HR of the land

from and out of the land admeasuring 1.61 HR, the area of land left

under the possession of the claimant was so small as could not be put to

use for any agricultural purpose or any other activities and, therefore,

compensation for the remaining area also should have been granted by

the Reference Court.

8. Dealing with the submission that the Reference Court

committed an error in recording finding that the acquired land has the

residential potential, I find that no such error can really be seen from the

impugned judgment and order. The evidence available on record shows

that this land is situated on Digras-Darwha State Highway. The evidence

of PW 4 Sanjay Patankar, Talathi, examined by the claimant is clear on

this point. Map vide exhibit 16 does show that the acquired land is

adjacent to old Gaothan. Thus, the conclusion drawn by the Reference

Court that this land did have potentiality of getting developed into

residential area, cannot be erroneous or perverse. The contention of

learned Assistant Government Pleader in this regard is, therefore,

rejected.

9. Once it is found that the acquired land was having residential

potential, the sale instances of pre-notification period in respect of

adjoining lands would become relevant for the purpose of determining the

market value of the acquired land. In this case, the evidence adduced by

the claimant shows that sale instance vide exhibit 20 would be one such

sale instance which should be considered for appropriate determinatin of

the agricultural land. This sale deed has been rightly considered by the

Reference Court as providing sufficient light to the Court to arrive at

proper market value of the acquired land. This sale deed (exhibit 20) is

dated 16.2.1985 which is much prior to Section 4 Notification published

on 28.10.1993. Shri Agnihotri, learned counsel for the claimant has

produced before the Court a chart giving detailed calculations. From this

chart it could be seen that the sale deed (exhibit 20) was executed about

8 years 8 months prior in point of time of publication of Section 4

Notification. Learned Civil Judge, Senior Division, as seen from the

impugned judgment and order, has not given details of the calculations in

ariving at market rate of the acquired land to be at Rs. 1,30,000/- per

acre i.e. Rs. 3,25,000/- per hectare. It appears that learned Civil Judge,

SD has not taken into consideration the usual increase in price of the

land that would take place over a period of time. According to learned

counsel for the claimant, such usual rise in price of the land would be

generally @ 12-10% per annum. He places reliance on the judgment of

Hon'ble Apex Court in Om Prakash and ors v. Union of India and anr

reported in (2004) 10 SCC 627; LAO and Revenue Division v.

Ramanjulu and ors reported in (2005) 9 SCC 594 and Sharda Rani v.

SLAO and anr reported in (2010) 15 SCC 524. These judgments of the

Hon'ble Apex Court have settled the law on this point. While the first

judgment in the case of Om Prakash and ors (supra) which is of the year

2004, lays down that such escalation of price should be @ 12% per

annum, the later two judgments which are of the subsequent years lay

down that it should be @ 10% per annum. In fact, in case of Sharda Rani

(supra), Honourable Apex Court now has approved the rise to be @

10% per annum and so, this Court will have to consider the rise in the

price of the acquired land over a period of time @ 10% per annum which,

as stated above, has not been taken into account by the Reference Court.

The Reference Court, I must say, has made some deductions on account of

the developmental requirements. But, again no details of the calculations

in that regard are made. Therefore, this Court is now required to give

these basic details which would lead the Court in arriving at proper

market rate of the acquired land. They are as under :

           ~        Sale instance dated 20.2.1985 (exhibit 20).

           ~        Date of Section 4 Notification - 28.10.1993.




                                                             
           ~        Price rise is to be considered for a period of eight

                    years, eight months. 




                                               
           ~        Base price disclosed by sale instance (exhibit 20)
                                 
                    - Rs.  3.52 per square foot.

           ~        10 per cent increase for a period of eight years
                                
                    eight months in the base price of Rs.  3.52/

                    square foot = 8.80x0.352= 3.00 inflated.
      


           ~        One acre is = 43,560 square feet
   



           ~        Deduct development cost of 30% of 43560 (-) 

                    13068 = 30,492 (area to be calculated for 





                    compensation.

           ~        Base price  + escalated price = 6.52





           ~        Market price of the land would be 30,492 x 

                    6.52 = 1,98,198/- per acre i.e. Rs. 4,89,549

                    per hectare.

Document showing calculations is marked "X" for

identification.

10. So, the appropriate market price of the aforesaid land would

be Rs. 1,98,198/- per acre, that is to say, Rs. 4,89,549/- per hectare which

ought to have been determined by the Reference Court. However, this

has not been done and, therefore, the finding of the Reference Court to

this extent is required to be set aside and substituted by a finding granting

appropriate market price of the land at the afore-stated rate. As regards

valuation of the well, the Reference Court has enhanced it to Rs.

100,000/- and there being no submissions whatsoever made with regard

to such fixation of the value of the well , I would say that the rival parties

are satisfied with the same.