Amrutrao Shankarrao Mahalle vs The State Of Mah.Thr.Collector ...
2016 Latest Caselaw 715 Bom

                                     1
                                                                      fa344.04.odt

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                   NAGPUR BENCH, NAGPUR




                                                       
                         First Appeal No.344 of 2004




                                                      
       Amrutrao s/o Shankarrao Mahalle,
       Aged about 44 years,
       Occupation - Cultivator,
       R/o Chirkute,
       Post Arambhi, Tq. Digras,




                                         
       Distt. Yavatmal.                                  ... Appellant


            Versus
                             
                            
       1. The State of Maharashtra,
          through Collector, Yavatmal,
          Distt. Yavatmal.
      


       2. Collector, Yavatmal,
   



          District Yavatmal.

       3. The Sub-Divisional Officer,
          and Land Acquisition Officer,





          Darwha, District - Yavatmal.                   ... Respondents


       Shri S.U. Nemade, Advocate for Appellant.
       Shri M.A. Kadu, AGP for Respondents.





                 Coram : R.K. Deshpande, J.

th Date : 17 March, 2016

fa344.04.odt

Oral Judgment :

1. In Land Acquisition Case No.51 of 2001 filed under

Section 18 of the Land Acquisition Act, 1894, the Reference

Court, by its judgment and order dated 17-7-2003, has granted

enhancement of compensation at Rs.70,000/- per hectare for the

land acquired as against Rs.36,000/- per hectare granted by the

Land Acquisition Officer. The claimant has preferred this appeal

under Section 54 of the said Act claiming further enhancement of

compensation at the rate of Rs.30/- per square foot, as, according

to him, it is the land bearing non-agricultural potentiality.

2. The facts in detail are as under :

By the notification issued in the official gazette

on 18-1-1996 under Section 4 of the Land Acquisition Act, the

land admeasuring 1 hectare out of Survey No.58/1 of Village

Chirkuta, Tahsil Digras, District Yavatmal was acquired for

fa344.04.odt

extension of gaothan. The Land Acquisition Officer passed an

award on 2-1-1999 granting compensation at the rate of

Rs.36,000/- per hectare as against the claim of Rs.30/- per

square foot. The Reference Court, while considering the

enhancement at the rate of Rs.70,000/- per hectare, took into

account the sale instances at Exhibits 22, 23 and 24

dated 27-8-1993, 9-9-1993 and 30-7-1993 respectively and it has

been held that the sale instances cannot be accepted because the

same were from Village Digras, whereas the land in question is

located beyond the Village limits. The Reference Court has also

drawn distinction on the ground that the lands covered by these

sale instances were small pieces of land, admeasuring 1,080

sq.ft., 300 sq.ft. and 264 sq.ft., reflecting the consideration at the

rate of Rs.17.12 per sq.ft., Rs.18.33 per sq.ft. and Rs.15.15 per

sq.ft. The land in question consists of the area of 1 hectare,

acquired out of Survey No.58/1 having the total area of 3 H

and 5 R. It is also the finding recorded that the land in question

is a dry crop land and there is no ground to say that the land

acquired has got high non-agricultural potentiality. Taking into

fa344.04.odt

consideration the entire situation, proximity, future prospects,

non-agricultural potentiality and sale instances, the Reference

Court has recorded the finding in para 14 that the price of the

land acquired can be determined at Rs.70,000/- per hectare.

3. Shri Nemade, the learned counsel appearing for the

appellant-claimant, has urged that the Reference Court ought to

have relied upon three sale instances at Exhibits 22, 23 and 24,

which were prior to the date of the notification under

Section 4 of the Land Acquisition Act issued on 18-1-1996, and

the highest rate reflected is Rs.18.33 per sq.ft. He submits that

these lands were adjacent to the land under acquisition. Relying

upon the decision of the Apex Court in the case of Digamber &

Ors. v. State of Maharashtra & Ors., reported in

AIR 2013 SC 3532, he has urged that the very fact that the land

was acquired for extension of gaothan shows that it bears

non-agricultural potentiality. He submits that in such a situation,

the Apex Court has upheld the decision of this Court that the

land in question acquired bore non-agricultural potentiality and

fa344.04.odt

has observed that no fault could be found in awarding

compensation relying upon the sale-deeds regarding residential

plots. He has also relied upon the judgment delivered by the

Reference Court in Land Acquisition Case No.67 of 1994 granting

compensation at the rate of Rs.5/- per sq.ft. for acquisition of the

land, admeasuring 4 R out of Survey No.60/1 from the same

Village for the purposes of water supply scheme. He submits that

at least this rate was required to be granted by the Reference

Court for the land in question, which is just adjacent to Survey

No.60/1.

4. The points for determination are as under :

(i) Whether the Reference Court has committed an

error in refusing to rely upon the sale-deeds at Exhibits 22, 23 and 24, recording the finding that the land in question does not bear non-agricultural potentiality,

and further refusing to grant compensation as per the decision of the Reference Court in Land Acquisition Case No.67 of 1994? And

fa344.04.odt

(ii) Whether the claimant is entitled to further

enhancement of compensation?

5. I have gone through the record and proceedings, and

perusal of Exhibit 22, the sale-deed, shows that it is for sale of

1,080 sq.ft. of land situated in a village and surrounded by the

residential area. The said land is sold at Rs.18,500/- by one

Smt. Vatsalabai Patil to Madhukar Kapse. Said Madhukar Kapse

has been examined as the witness by the claimant, and in his

cross-examination, he has stated that the land is situated in the

village and the land under acquisition is under cultivation.

Exhibit 23, which is the sale index for sale of 300 sq.ft.

at Rs.5,700/- by one Shantanu Parashram Patil in favour of

Sanjay Abhruk. Said Shantanu Patil has been examined as the

witness, and he has stated that there is a distance of 800 feet in

between the land sold and the acquired land.

Exhibit 24 is the sale instance in respect of 264 sq.ft. of

fa344.04.odt

land for Rs.4,000/- on 30-7-1993 by one Rajkumar Anandrao

Gubhane to Milind Dipakrao Patil. Said Rajkumar Gubhane has

been examined, and he has stated that the acquired field of the

claimant is about 500 feet away from the land which was sold.

These sale instances pertain to very small pieces of land

and cannot, therefore, be relied upon for determining the market

value of the agricultural land of 1 hectare. Undisputedly, the

land under acquisition has not been converted for

non-agricultural purpose.

6. The judgment in Land Acquisition Case No.67 of 1994 at

Exhibit 25 delivered by the Reference Court under Section 18 of

the Land Acquisition Act is in respect of Survey No.60/1, out of

which, the land admeasuring 4 R was acquired. In para 13 of the

said judgment, it is held as under :

"13. ... Therefore, one can safely say that the demand of petitioner claiming compensation for such land on the basis of N.A. potentiality appears to be probable and genuine. Even one should not forget that to rebut the contention of

fa344.04.odt

petitioner, no endeavour was being made to adduce the

evidence of any officer to show that the contention of petitioner is false. No doubt, to show what was the real

market price of the land or of plot at village Chirkuta, no congent and reliable evidence has been adduced. However, one should not forget that even in the villagesthe rate of open land remains upto Rs.5/- per sq.ft. Admittedly, to

substantiate that the rate of such type of land at Chirkuta village was at Rs.10/- per sq.ft., no sale instance etc. has been filed. Therefore at the most one can say that petitioner is entitled to get compensation for such acquired piece of land at the rate of Rs.5/- per sq.ft. At this stage, one should

not forget that there is a different forum for granting permission to convert the land into N.A. use. Court can only

see whether a particular piece of land is having N.A. potentiality or not and then only can fix the compensation. If the bigger track of land is acquired even one has to

consider the deduction of 25% of land for laying of roads, preparation of drainage and keeping open space etc. Here only 04 Are of land i.e. 4400 sq.ft. of land is acquired for construction of water tank. Therefore, there is no need to

deduct such 25% from such much area. So considering all these aspects, it will be fit ad desirable to fix the

compensation of such piece of acquired land at the rate of Rs.5/- per sq.ft. Therefore I am inclined to fix the compensation for such 04 Are of land i.e. 4400 sq.ft. at such rate only. Therefore, I answer issue no.1 holding that

petitioner is entitled to receive the enhanced compensation at Rs.22,000/- for such acquired piece of land."

A bare perusal of the aforesaid findings clearly indicate

that the Reference Court considered the demand for

non-agricultural potentiality to be probable and it also recorded

fa344.04.odt

the finding that there was no evidence to show what was the real

market value of the land or plot of land situated at Village

Chirkuta. The Reference Court proceeded to hold that one

should not forget that even in the villages, the rate of open land

remains upto Rs.5/- per sq.ft., and admittedly to substantiate that

the rate of such type of land at Village Chirkuta was at

Rs.10/- per sq.ft., no sale instance, etc., has been filed. It,

therefore, granted the rate of Rs.5/- per sq.ft. without there being

any basis. Although the Reference Court recorded the finding

that when the non-agricultural potentiality of the land is

accepted, 25% deduction for development of land has to be

granted, but keeping in view that only small portion of the land

of 4 R, i.e. 4,400 sq.ft., has been acquired for the purposes of

construction of water tank, it refused to consider any deduction

to the extent of 25%. This decision cannot, therefore, be relied

upon for the purposes of determining the market value of the

land, admeasuring 1 hectare.

7. In view of above, point No.(i) is answered, holding that no

fa344.04.odt

fault can be found with the view taken by the Reference Court in

rejecting the sale instances at Exhibits 22, 23 and 24, and also

the price reflected in the judgment delivered by the Reference

Court in Land Acquisition Case No.67 of 1994 at Exhibit 25.

8. Though there is nothing on record to grant further

enhancement of compensation to the claimant, my attention is

invited to the decision of this Court in First Appeal No.138 of

2008 and First Appeal No.944 of 2008, delivered on 25-9-2012.

It arose out of the acquisition of the portion of the land to the

extent of 0.57 R out of Survey No.58/1 by the notification

dated 20-4-1996 issued under Section 4 of the Land Acquisition

Act. Relying upon the sale-deed dated 19-7-1993 reflecting the

rate of Rs.1,12,500/- per hectare, the Court granted the

compensation at the rate of Rs.1,12,500/- per hectare. I have

also gone through the record and proceedings of the said

decision, and I find that the sale-deeds at Exhibits 22, 23, and 24,

relied upon by the claimant in this case, were also relied upon

the said decision, and those were discarded by the Court. In view

fa344.04.odt

of this, there cannot be any better evidence than the sale of the

part of the land under acquisition. Hence, placing reliance upon

the price determined by this Court at Rs.1,12,500/- per hectare

in respect of the same land, the claimant can be granted 10%

increase per year from 1993, which is the date of execution of the

sale-deed, till 1996. The total increase would be Rs.33,750/-.

Hence, the claimant would be entitled to the market price of

Rs.1,46,250/- [Rs.1,12,500/- + Rs.33,750/-] per hectare by way

of compensation for the acquisition of 1 hectare of land out of

Survey No.58/1.

9. In the result, the appeal is partly allowed. The claim for

enhancement is granted to the extent of Rs.1,46,250/- per

hectare. If the claimant has already withdrawn some amount,

then all other statutory entitlements available to him under the

provisions of the Land Acquisition Act shall be calculated on the

enhanced amount of compensation. Thus, the judgment and

order passed by the Reference Court stands modified accordingly.

fa344.04.odt

10. The appeal is disposed of in above terms. No order as to

costs.

Judge.

Lanjewar,PS