Bombay High Court

Sambhaji Ganpati Langade And ... vs State Of Maharashtra And Anothers on 5 July, 2016

Bench: P.R. Bora

                                          1                    FA No.425/1999

             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                       
                                               
                           FIRST APPEAL NO.425 OF 1999 


      1.  Sambhaji s/o Ganpati Langade
          Age - 60 years, Occupation - 




                                              
          Agriculture, R/o Aronapur, 
          Taluka and District Nanded.

      2.  Pralhad S/o Ganpati Langade
          Through Legal Representatives




                                      
      2A) Vimalbai W/o Pralhad Langade,
          Age: 60 Years, Occu: Household,
                             
      2B) Randhir S/o Pralhad Langade,
          Age: 42 Years, Occ: Agriculture,
                            
      2C) Radheshyam S/o Pralhad Langade,
          Age: 35 Years, Occ: Agriculture,

          All R/o Ardhapur, Tq. Ardhapur,
          District Nanded.                     - APPELLANTS
      


                 VERSUS
   



      1.  The State of Maharashtra
          through the Collector, Nanded.





      2.  Special Land Acquisition Officer,
          Nanded PT MIV-2, Nanded.

      3.  The Executive Engineer,
          U.P.P. No.3, Nanded.                - RESPONDENTS
                                       





                               *****
      Mr.M.V.Ghatge, Advocate for Appellants;
      Mr.N.T.Bhagat,AGP for Resp.Nos.1 to 3.
                                       -----
                                   CORAM :  P.R.BORA,J.

       
      DATE OF RESERVING JUDGMENT: 24
                                     th
                                        
                                        MAY, 2016
                                                 
       
      DATE OF PRONOUNCING JUDGMENT:5
                                       
                                     th
                                        JULY,2016
                                                 




    ::: Uploaded on - 08/07/2016               ::: Downloaded on - 30/07/2016 08:19:47 :::
                                          2                      FA No.425/1999

                                              
      JUDGMENT :

1) Heard. The appellants have challenged

the Judgment and Award passed in L.A.R.No.

197/1996 on 16th September, 1998 by Civil Judge,

Senior Division, Nanded by filing the present

appeal. The aforesaid LAR was filed by the

appellants under Section 18 of the Land

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

the determination, fixation and enhancement of

the amount of compensation awarded by the Special

Land Acquisition Officer, towards the acquisition

of the agricultural land bearing Gut No.466

admeasuring 42 R. situated at village Ardhapur,

Tq. And Dist. Nanded owned by the

appellants/claimants. The Reference Court has

dismissed the aforesaid LAR vide the impugned

order.

2) A common Judgment and Award was passed

by the Reference Court in LAR No.197/1996 with

the companion references. The agricultural land

of the appellants was acquired for construction

of Nimgaon Branch Minor (Kalwa) Chari No.7, Tq.

And District Nanded along with some other

agricultural lands. A notification under Section

4 of the Act pertaining to said acquisition, was

issued on 23rd August, 1990. Possession of the

land was, however, taken by the Government much

prior to the said notification, i.e. on 5th

February, 1986. The Award under Section 11 of the

Act came to be passed on 13th July, 1995. The

Special Land Acquisition Officer granted the

compensation to the appellants at the rate of

31,000/- per hectare. According to the

petitioners, the compensation awarded by the

Special Land Acquisition Officer was inadequate

and the petitioners, therefore, preferred the

Land Acquisition Reference invoking the

provisions under Section 18 of the Act. The

petitioners claimed the compensation at the rate

of Rs.60,000/- per acre.

3) In order to substantiate the claim so

raised by them, the petitioners had relied upon

four sale instances and had also examined one

witness in order to prove one of such sale

transaction. Petitioner No.1 - Sambhaji had also

deposed before the Reference Court in order to

substantiate the claim raised by the petitioners.

It was the case of the petitioners before the

Reference Court that the lands, as similar in

quality and potentials, situated in the same

area, were sold at the rate more than Rs.60,000/-

per acre and as such, the petitioners were also

entitled to receive the compensation at the said

rate. No witness was examined on behalf of the

respondents before the Reference Court.

4) The learned Reference Court however, on

his assessment of the oral and documentary

evidence brought before him, dismissed the

Reference Application vide the impugned order on

merits as well as on the point of limitation.

According to the Reference Court, since the

Reference Application was filed after the period

of about eight months from the date of passing of

the Award under Section 11 of the Act, it was

time-barred. Though a plea was raised by the

present appellants and other petitioners, that

they acquired the knowledge about passing of the

Award only after a notice under Section 12(2) of

the Act was served upon them on 8th January, 1996,

the Reference Court has rejected the said

contention holding that from the evidence on

record there was reason to believe that the

present appellants and other petitioners were

quite aware of passing of the Award since the

date of passing of such Award. Being aggrieved

by the Judgment and Award passed, as aforesaid,

the appellants have preferred the present appeal.

5) Shri Ghatge, learned counsel appearing

for the appellants, submitted that in para 5 of

the Reference Petition, the appellants had

categorically averred that the petitioners

acquired the knowledge that the Award has been

passed by the Special Land Acquisition Officer

under Section 11 of the Act, only after the

notice under Section 12(2) of the Act was served

upon the petitioners on 8th January, 1996. The

learned counsel submitted that within six weeks

from the said date, the petitioners did file the

Reference Petition and as such, it was well

within the period of limitation.

. The learned counsel further submitted

that in absence of any contrary evidence as about

the averments made by the petitioners in para 5

of the Reference Application, on some erroneous

assumptions, the Reference Court has recorded a

finding that the Reference Petition filed by the

petitioners was barred by limitation and

consequently, has rejected the said petition

being time-barred. According to the learned

Counsel, the words "date of the Collector's

Award" in proviso (b) to Section 18(2) of the Act

has to be read as referring to the date of

knowledge of the essential contents of the Award

and not the actual date of the Collector's Award.

In order to substantiate his contention, the

learned Counsel relied upon the judgment of the

Hon'ble Apex Court in the case of Bhagwandas &

Ors. Vs. State of U.P. And Ors. - 2010 (4)

Mh.L.J. 564.

. The learned counsel further submitted

that the Reference Court has failed in

appreciating the evidence adduced on behalf of

the petitioners in the form of sale-instances of

the comparable lands. The learned counsel

further submitted that for wrong and incorrect

reasons, the Reference Court has preferred not

to rely upon the said sale instances brought on

record by the petitioners for determining the

amount of compensation. The learned counsel

further submitted that the Reference Court in a

very cursory manner has refused to accept the

evidence as about the amount of compensation. The

learned counsel submitted that by adducing the

evidence of an independent witness viz. Balaji

Vitthalrao Bhalerao, the petitioners have aptly

brought on record market value of the

agricultural lands in the vicinity. The learned

counsel submitted that the said witness had sold

2 acres of land on 16th March, 1988 for the

consideration of Rs.80,000/-. The learned Counsel

submitted that there was no reason for the

Reference Court to disbelieve the evidence of the

said witness.

. The learned counsel, taking me through

the evidence on record and more particularly to

the sale instances at Exhibits-17, 18, 19 and 20,

submitted that the petitioners have sufficiently

proved that at the relevant time, the market

value of the agricultural land in the subject

area was around Rs.60,000/- per acre. The

learned counsel, therefore, prayed for

determining the market value of the acquired land

at the said rate and accordingly award the

compensation at the said rate. The learned

counsel further submitted that the petitioners

are also entitled for all statutory benefits

provided under Sections 28 and 34 of the Act and

prayed for grant of the said benefits in favour

of the petitioners.

6) Shri N.T.Bhagat, learned AGP, opposed

the submissions advanced on behalf of the

petitioners. The learned AGP supported the

impugned judgment. He further submitted that the

Special Land Acquisition Officer had considered

as many as 25 sale instances while determining

the market value of the land under acquisition.

The learned AGP further submitted that the

Special Land Acquisition Officer has correctly

taken into account the two sale instances out of

the aforesaid 25 sale instances, considering the

fact that the lands, which were the subject

matter of the said two sale instances, were in

all respect comparable with the lands under

acquisition.

. In so far as point of limitation is

concerned, the learned AGP submitted that the

petitioners were having full knowledge of the

fact of passing the Award and as such, the

petitioners must have filed the Reference

Application within the stipulated period of six

months.

. The learned AGP further submitted that

the Reference Court has not committed any error

in dismissing the Reference Application. He,

therefore, prayed for dismissal of the appeal

with costs.

7) I have considered the submissions made

on behalf of the petitioners as well as the

respondents. I have also perused the impugned

Judgment and the record of the case, more

particularly, the evidence orally and documentary

adduced in the matter.

8) First, I would like to deal with the

point of limitation. As stated herein above, the

petitioners have taken a specific plea that they

come to know about passing of the Award under

Section 11 of the Act only after the notice under

Section 12(2) of the Act was served upon them on

8th January, 1996. The averments made in this

regard in the Reference Application have not been

specifically denied or disputed by the

respondents. In absence of any contrary evidence

on record, I see no reason to disbelieve the

submission so made by the petitioners.

9) The application for reference under

Section 18 of the Act must be made within the

period prescribed under proviso to said Section

18(2) of the Act. The relevant provision reads

thus,

"18. Reference to Court -

(1) ..............................

(2) The application shall state the

grounds on which objection to the

award is taken:

Provided that every such

application shall be made,-

(a) if the person making it was

present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;

(b) in other cases, within six weeks of the receipt of the notice

from the Collector under Section

12, sub-section (2), or within six months from the date of the

Collector's award, whichever period shall first expire". (emphasis supplied)".

10) In view of the law laid down by the

Hon'ble Apex Court in the case of Bhagwandas and

Ors. Vs. State of U.P. and Ors. (cited supra),

the words "date of Collector's Award" in proviso

(b) to Section 18(2) of the Act must be read as

referring to date of knowledge of the essential

contents of the Award and not the actual date of

the Collector's Award. I find it appropriate to

reproduce the observations made by the Hon'ble

Apex Court in Para 11 of the said judgment, which

read thus, -

"11. When a land is acquired and an

award is made under section 11 of the Act, the Collector becomes entitled to take possession of the acquired land. The award being only an offer on behalf of the Government, there is always a tendency on the part of the

Collector to be conservative in

making the award, which results in less than the market value being

offered. Invariably the land loser is required to make an application under section 18 of the Act to get

the market value as compensation. The land loser does not get a right to seek reference to the Civil Court

unless the award is made. This means

that he can make an application seeking reference only when he knows

that an award has been made. If the words six months from the 'date of the Collector's award' should be

literally interpreted as referring to the date of the award and not the

date of knowledge of the award, it will lead to unjust and absurd

results. For example, the Collector may choose to make an award but not to issue any notice under section 12(2) of the Act, either due to

negligence or oversight or due to any ulterior reasons. Or he may send a notice but may not bother to ensure that it is served on the land owner as required under section 45 of the Act. If the words 'date of

the Collector's award' are literally

interpreted, the effect would be that on the expiry of six months

from the date of award, even though the claimant had no notice of the award, he would lose the right to

seek a reference. That will lead to arbitrary and unreasonable discrimination between those who are

notified of the award and those who

are not notified of the award. Unless the procedure under the Act

is fair, reasonable and non- discriminatory, it will run the risk of being branded as being violative

of Article 14 as also Article 300A of the Constitution of India. To

avoid such consequences, the words 'date of the collector's award'

occurring in proviso (b) to section 18 requires to be read as referring to the date of knowledge of the essential contents of the award, and

not the actual date of the Collector's award."

11) In view of the law laid down by the

Hon'ble Apex Court as above, there remains no

doubt that the Reference Application filed by the

petitioners was filed well within the prescribed

period of limitation. The negative finding

recorded in this behalf by the Reference Court

thus deserves to be quashed and set aside and it

has to be held that the Reference Application

filed by the petitioners was filed well within

the period of limitation.

12) Now, about the amount of compensation,

as has come on record, the appellants were

claiming compensation of the land under

acquisition at the rate of Rs.60,000/- per acre.

In order to substantiate that during the relevant

period, same was the market value of the lands as

similar to the land under acquisition, situated

in the area nearby the land under acquisition,

the petitioners have relied upon four sale

instances. The sale-deeds of all these

transactions have filed on record at Exhibits-17

to Exhibit-20. One of such sale deeds has been

duly proved by the petitioners by examining the

vendor viz. Balaji Vitthalrao Bhalerao.

. The land, which was the subject matter

of the sale-deed at Exhibit-17, was admeasuring

24 R. and was sold at the price of Rs.50,000/- by

a registered sale-deed executed on 18.12.1985.

The land, which was sold vide sale-deed at

Exhibit-18 on 16th March, 1988, was admeasuring 81

R. and the value received to the said land was

Rs.80,000/-. The sale deed at Exhibit-19

pertains to sale transaction occurred on 17th

September, 1990 in respect of 4 R. land, which

was sold for the consideration of Rs.40,000/-.

The land which was the subject matter of the

sale-deed at Exhibit-20 was admeasuring 40 R. and

was sold by a registered sale-deed executed on 2nd

July, 1991 for the consideration of

Rs.1,00,000/-. For some or other reason, the

learned Reference Court did not rely upon any of

the aforesaid sale instances. Instead, the

learned Reference Court has relied upon the sale

instances referred to in the Award passed by the

Special Land Acquisition Officer.

. The contents of the Award passed under

Section 11 of the Act reveal that the Special

Land Acquisition Officer has relied upon the sale

instance occurred on 26th October, 1989 in

relation to Gut No.448 situated at village

Ardhapur, wherein, the market value received to

the concerned land was at the rate of Rs.28,787/-

per hectare. As discussed in the award,

according to Special Land Acquisition Officer,

the aforesaid was the comparable sale instance

for determining the market value of the land

under acquisition. Assuming that the market rate

of the land would normally increase by 6% in a

year, the Special Land Acquisition Officer has

determined the market value of the land under

acquisition at the rate of Rs.31,000/- per

hectare. However, it is the matter of record

that during the course of hearing of the LAR

No.197/1996, the respondents did not adduce any

oral or documentary evidence. The law is well-

settled that the Reference Court cannot take into

account the material relied upon by the Land

Acquisition Officer in his Award, unless the said

material is produced and proved before the

Reference Court. Admittedly, the sale instance

on which reliance seems to have been placed by

the learned Reference Court, has not been legally

proved by the respondents. The respondents have

not placed on record a copy of the concerned sale

deed nor any witness has been examined to prove

the said sale instance.

. The learned Reference Court has grossly

erred in placing implicit reliance on the

discussion made in the Award by the Special Land

Acquisition Officer while rejecting the Reference

Application. What was incumbent upon the learned

Reference Court was to analyze the sale instances

brought on record by the petitioners by adducing

necessary evidence therefor. The Reference Court

has kept out of consideration the sale instance

at Exh.17 for the reason that it was pertaining

to the irrigated land. The sale instance at

Exh.18 has not been considered and relied upon by

the Reference Court, recording a reason that the

said land was purchased by the adjacent land

holder, who was bound to pay higher price than

the market rate. Similar was the reason for

rejecting the sale instance at Exh.19 by the

Reference Court. As noted by the Reference

Court, the purchaser- Afsari Begum was possessing

her own land towards the eastern side adjacent to

the land which was the subject matter of Exhibit-

19. The sale instance at Exh.20 was also kept

out of consideration by the Reference Court.

13) After having perused the discussion made

in the impugned judgment as about the sale

instances at Exhibits-17 to 20, it appears that

the Reference Court has failed in properly

appreciating the said evidence. It is the matter

of record that the petitioners have examined one

Balaji Vitthalrao Bhalerao, in whose evidence,

the sale instance at Exh.18, was duly proved. The

said sale instance is of the date 16 th March,

1988. Section 4 notice was admittedly issued on

23.8.1990. As such, there was no reason for the

Reference Court for not considering the aforesaid

sale instance. Even if it is presumed that the

person, who purchased the subject land of Exh.18,

for the reason that he was having his own land

towards southern side of the subject land, the

entire said transaction cannot be branded as not

genuine transaction. No doubt, adjacent land

holder would certainly pay some more price, but,

it cannot be accepted that he would pay twice or

thrice of the market value.

14) As has come on record, the land, which

was the subject matter of Exh.18, admeasuring 81

R., was sold on 16.3.1988 for value of

Rs.80,000/-. Admittedly, the said land was

purchased by the adjacent land holder. Even if

it is assumed that being adjacent land, the

purchaser might have paid higher price for the

said land. It can be reasonably inferred that

the market value of the said land may be around

Rs.25,000/- to 30,000/- per acre. The sale

instance at Exh.17 pertains to the transaction

held on 18th December, 1985, wherein 24 R. land

was sold for the consideration of Rs.50,000/-.

Admittedly, the said land was irrigated land.

When the aforesaid transaction had taken place,

neither the notification under Section 4 of the

Act was issued nor the lands were taken in

possession for the subject project. When for the

irrigated land, value was received at the rate of

around Rs.2,000/- per R., i.e. Rs.80,000/- per

acre, even if most conservative approach is

taken, a reasonable inference can be drawn that

the price at the relevant time of the non-

irrigated land in the said area, may be around

Rs.25,000 to Rs.30,000/- per acre.

15) After having considered the available

evidence on record, as discussed herein above, I

determine the market value of the land under

acquisition at the rate of Rs.25,000/- per acre.

According to me, this would be the just and

adequate price of the land under acquisition and

the compensation needs to be paid to the

petitioners at said rate with all statutory

benefits. The impugned order so far as it

relates to LAR No.197/1996, stands quashed and

set aside. Hence, the following order.




                                                  
                                         ORDER

                       I)             The Judgment and Award   dated 

                       16th        September,   1998   passed   in

L.A.R.No.197/1996 by Civil Judge, Senior

Division, Nanded, is quashed and set

aside;

II) The market value of the subject

land, as determined, by the Collector at

the rate of Rs.31,000/-, per hectare, is

enhanced to Rs.62,500/- per hectare;

III) The respondents do jointly and

severally pay the enhanced amount of

compensation to the petitioners along

with interest at the rate of 12% per

annum, as special component from the