Bombay High Court
Shankarrao Bhagwantrao Patil vs State Of Maha & Ors on 22 March, 2016
Bench: T.V. Nalawade
1 F.A. 1373...2003 - %5BJ%5D .odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1373 OF 2003
Shankarrao Bhagwantrao Patil
Age : 68 Yrs., Occ. Agril.,
R/o : Hadongri, Tq. : Bhoom,
Dist. : Osmanabad. ..... APPELLANT
V E R S U S
1.
The State of Maharashtra
Through Collector, Osmanabad.
2. The Sub Divisional Officer
and Land Acquisition Officer,
Bhoom, Dist. Osmanabad.
3. The Executive Engineer,
B & C Department,
Osmanabad Division,
Osmanabad. ..... RESPONDENTS
WITH
FIRST APPEAL NO. 1374 OF 2003
Dakshabal Bhagwantrao Patil
Age : 52 Yrs., Occ. Agril.,
R/o : Hadongri, Tq. : Bhoom,
Dist. : Osmanabad. ..... APPELLANT
::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 09:54:26 :::
2 F.A. 1373...2003 - %5BJ%5D .odt
V E R S U S
1. The State of Maharashtra
Through Collector, Osmanabad.
2. The Sub Divisional Officer
and Land Acquisition Officer,
Bhoom, Dist. Osmanabad.
3. The Executive Engineer,
B & C Department,
Osmanabad Division,
Osmanabad. ..... RESPONDENTS
WITH
FIRST APPEAL NO. 63 OF 2004
1. The State of Maharashtra
Through Collector, Osmanabad.
2. The Sub Divisional Officer
and Land Acquisition Officer,
Bhoom, Dist. Osmanabad.
3. The Executive Engineer,
B & C Department,
Osmanabad. ..... APPELLANTS
V E R S U S
Shankarrao Bhagwantrao Patil
Age : 68 Yrs., Occ. Agril.,
::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 09:54:26 :::
3 F.A. 1373...2003 - %5BJ%5D .odt
R/o : Hadongri, Tq. : Bhoom,
Dist. : Osmanabad. ..... RESPONDENT
WITH
FIRST APPEAL NO. 64 OF 2004
1. The State of Maharashtra
Through Collector, Osmanabad.
2. The Sub Divisional Officer
and Land Acquisition Officer,
Bhoom, Dist. Osmanabad.
3. The Executive Engineer,
B & C Department,
Osmanabad. ..... APPELLANTS
V E R S U S
Dakshabal Bhagwantrao Patil
Age : 52 Yrs., Occ. Agril.,
R/o : Hadongri, Tq. : Bhoom,
Dist. : Osmanabad. ..... RESPONDENT
.....
Mr. V.S.Bedre, Advocate for Appellants.
Ms. R.P.Gour, A.G.P. for Respondents.
.....
CORAM : T.V.NALAWADE, J.
JUDGMENT RESERVED ON : 04/03/2016
JUDGMENT PRONOUNCED ON : 22/03/2016
::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 09:54:26 :::
4 F.A. 1373...2003 - %5BJ%5D .odt
JUDGMENT :
1. Two Appeals are filed by the original
claimants and remaining two Appeals are filed by the
State Govt. to challenge the Judgments and Awards of
L.A.R. No. 1243/2002 and 1244/2002, which were
pending in the Court of the Civil Judge [Sr.Division],
Osmanabad. As the compensation is enhanced u/s 18 of
the Land Acquisition Act [for short, 'Act'], State Govt. has
challenged the decision and as the compensation is not
given as per some sale instances proved by the claimants,
they have filed the Appeals. Both sides are heard.
2. The lands of both the claimants are acquired
for the construction of residential quarters for the
servants of State Govt. 40 R. land of claimant from
Reference No. 1243/2002 is acquired from S.No.
220/4/b. 20 R. portion from the same land of the
claimant from Reference No. 1244/2002 is acquired for
the same purpose and for the purpose of construction of
road and for aforesaid purpose one more land of 30 R.
portion from S.No. 212/2/6 of the claimant from
Reference No. 1244/2002 is acquired. The lands are
situated at Bhoom and within the local limits of
5 F.A. 1373...2003 - %5BJ%5D .odt
municipal council, Bhoom.
3. The possession of the lands was taken by
private negotiations by the Govt. on 14/09/1984. In the
case of land of claimant from Reference No. 1243/2002,
the Notification u/s 4 of the Act was published in official
gazette on 04/02/1999. On the same day, the
Notification was published in other matter also. However,
the Award was prepared in the matter of claimant from
Reference No. 1243/2002 on 26/03/2002 and in the
other matter, the Award was prepared by the Special
Land Acquisition Officer [for short, 'S.L.A.O.'] on
06/04/2002.
4. The S.L.A.O. collected information about the
sale instances of Bhoom of 3 years period preceding the
date of publication of Notification u/s 4 of the Act. Land
S.No. 220/4/b was already converted to non agriculture
purpose use. Surrounding both lands viz. S.Nos.
220/4/b and 212, there are offices of Govt. department,
there is office of Municipal Council, there is Rural
hospital, there are schools and colleges and there is also
the area of M.I.D.C. As per the census of the year 1991,
6 F.A. 1373...2003 - %5BJ%5D .odt
the population of Bhoom was 17,510.
5. In both the Awards, the S.L.A.O. considered
8 sale instances of Bhoom, which were executed between
10/06/1996 and 16/02/1998. There were 3 sale
instances in respect of some portions of S.No. 212 of the
year 1996 and 1998. The minimum price given was
` 17.7 per Sq. Ft. and the maximum price given was
` 43/- per Sq. Ft. [in the year 1998]. There were 2 sale
instances in respect of land S.No. 220 and in both the
cases, 92 R. portion was sold for the consideration of
` 35,000/- and so the price was ` 38/- per Sq. Ft.
6. The S.L.A.O. took into consideration the two
sale instances in respect of S.No. 220 of the year 1997
and held that in 1997 the price was around ` 377/- per
Sq. Mtr. He gave enhancement of 23 % as the sale deed
was more than 2 years old and held that the land
converted to non agriculture purpose of such small piece,
would have been sold in the year 1999 @ ` 463.7/- per
Sq. Mtr.
7. Before fixing the market price for giving
7 F.A. 1373...2003 - %5BJ%5D .odt
compensation, the S.L.A.O. considered the plan approved
by the Town Planner when S.No. 220/2/4 was converted
to non agriculture land. On the basis of the plan,
S.L.A.O. held that 2336 Sq. Mtrs. area was available for
use from the area of 40 R. of the claimant of L.A.R. No.
1243/2002. Then the S.L.A.O. divided area of 2336 Sq.
Mtrs. into two portions. The S.L.A.O. held that area of
701 Sq. Mtrs. was having frontage of main road, public
road and so the rate of ` 600/- per Sq. Mtr. can be given
to that portion. He held that for the area of 1635 Sq.
Mtrs., the rate of ` 464/- per Sq. Mtr., as fixed above, can
be given. From the amount of compensation, he held
that the development charges @ 5 % per Sq. Mtr. need to
be deducted as per the rules of development made for the
area situated within the limits of local body. He held that
5 % amount needs to be deducted towards the fees of the
developers and 15 % amount needs to be deducted as the
profit, the developer could have earned. Thus, he gave
the rate of ` 232/- per Sq. Mtr. if the area of 40 R., which
was actually acquired, is considered.
8. In second matter, for ascertaining the market
price of portion of 20 R. acquired from S.No. 220/4/b,
8 F.A. 1373...2003 - %5BJ%5D .odt
the S.L.A.O. considered the same two sale instances of
the year 1997. However, the S.L.A.O. held that the
market price was around ` 350/- per Sq. Mtr. when in the
previous matter, he had held that the market price was
around ` 377/- per Sq. Mtr. He held that after giving
increase of 10 % per year in respect of sale instance, the
market price on the relevant date can be ` 452/- per Sq.
Mtr. In the previous matter, he had held that the market
price of the land from sale instances of relevant date was
around ` 464/- per Sq. Mtr. It is surprising that the
same S.L.A.O. had prepared both the Awards but he held
that the market price of the same sale instance land on
the relevant date, which was the same for both the cases,
was different.
9. In the first matter, as already observed, the
area of 1664 Sq. Mtrs. was deducted from the area of 40
R. by holding that this area was required to be kept
vacant and compensation was calculated in respect of the
remaining area. In the second matter, the S.L.A.O.
considered the area which was already left for
development in the development plan like for second
road, 68.85 Sq. Mtrs. for gardening plant, 336 Mtrs. for
9 F.A. 1373...2003 - %5BJ%5D .odt
first internal development road [68.85 Sq.Mtrs.], etc.
10. In the second matter, the S.L.A.O. considered
the set back also, the space which was not allowed to be
developed due to existence of adjacent State road as per
State High-way Act [area of 135 Sq. Mtrs.]. Thus, from
the total area of 20 R., the S.L.A.O. deducted 609.30 Sq.
Mtrs. area and held that the compensation can be given
only in respect of remaining area of 1390 Sq. Mtrs. In the
second case also, the compensation at the same rate is
not given for the area of 1390 Sq. Mtrs. The S.L.A.O.
further held that the area of 1390 Sq. Mtrs. could not
have been actually used and reduced the area further by
848 Sq. Mtrs. He then calculated the compensation in
respect of the area of 848 Sq. Mtrs. and gave the rate of
` 452/- per Sq. Mtr. From this amount also, he reduced
the amount of 5 % as the development charges of local
body, 5 % as the fees of the developer and 15 % as the
profit which could have been made by the developer. Due
to this procedure adopted by the S.L.A.O., the rate
actually given even for the area of 1390 Sq. Mtrs. is
` 217/- per Sq. Mtr. For the road which was in existence
as the internal road in the development map, he gave
10 F.A. 1373...2003 - %5BJ%5D .odt
nominal price of Rupee 1/-.
11. In the second matter, 30 R. from S.No.
212/1/b is acquired. The S.L.A.O. divided this land into
2 pieces like it was done in the first Land Acquisition
Reference. He held that for the area of 1000 Sq. Mtrs.,
there was frontage of State road and so different rate
needs to be given. He further held that the area of only
1220 Sq. Mtrs. could have been used from the remaining
area of 2000 Sq. Mtrs. if the property was developed. No
particular reasons are given for such deduction. This
land was not converted to non agriculture land. Sale
instance of aforesaid rate of more than ` 460/- per Sq.
Mtr. was available, though in respect of S.No. 220. In the
second matter, on the basis of other sale deed, he held
that the market price of the sale instance land was
around ` 271.7/- per Sq. Mtr. He gave increase for the
period of more than 2 years in this rate and he assumed
that the sale instance land could have been sold @
` 351/- per Sq. Mtr. on the relevant date. He calculated
compensation by using this rate for the area of 1220 Sq.
Mtrs. From this compensation also, he deducted the
charges like 5 % development fees of local body, 5 % as
11 F.A. 1373...2003 - %5BJ%5D .odt
the development fees to the developer and 15 % as the
profit of the developer. Due to this approach, it can be
said that he gave the rate of ` 168/- per Sq. Mtr. for the
area of 2000 Sq. Mtrs., the second piece of land which
was not that adjacent to the public road. For the area of
1000 Sq. Mtrs., which was just adjacent to the State road,
the S.L.A.O. considered the sale deed of 1997 which was
in respect of S.No. 220. For this rate, he gave increase of
10 %, but in this case also he committed mistake and
held that the market price of the sale instance land on the
relevant date was ` 351/- per Sq. Mtr. He did not give
the compensation at this rate in respect of acquired area
of 1000 Sq. Mtrs. but he deducted 35 % space from the
area of 1000 Sq. Mtrs. by holding that such area was
required to be left for development. He calculated the
compensation in respect of the remaining area of 650 Sq.
Mtrs. and gave rate of ` 351/- per Sq. Mtr. Like in other
matters, from this compensation amount also he
deducted the development fees of the local body of 5 %,
development fees of 5 % of the developer and 15 % profit
of the developer. Thus, it can be said that for the area of
1000 Sq. Mtrs., which was adjacent to the State road, he
gave the rate of 179 per Sq. Mtr. if the compensation is
12 F.A. 1373...2003 - %5BJ%5D .odt
considered for this area.
12. The Reference Court has considered the sale
instance at Exh. 31 as comparable sale instance. The
Reference Court held that in the sale instances, the rate
was ` 100/- per Sq. feet. First the Reference Court
deducted 20 % area from the total area acquired in both
the References and then gave rate of ` 70/- per Sq. feet
[` 700/- per Sq. Mtr. ] for 80 % area.
13. The Reference Court has awarded the
statutory benefits and interest in both the matters as
follows :
[i] Interest @ 9 % per annum u/s 34 of the Act
for first year starting from 14/09/1984
[date of possession].
[ii] Interest @ 15 % per annum u/s 34 of the Act
after completion of one year from
14/09/1984 till the period 13/08/2003, the
date of decision of the Reference Court.
[iii] The Reference Court gave the component of
12 % from 23/03/1999 to 06/04/2002.
[iv] Solatium at statutory rate is given.
13 F.A. 1373...2003 - %5BJ%5D .odt
14. The State is feeling aggrieved as
compensation is enhanced by the Reference Court by
giving the rate of ` 700/- per Sq. Mtr. and by holding that
the compensation needs to be given for more area than
what was given by the S.L.A.O. The State is aggrieved
also for the reason that interest @ 9 % and 15 % per
annum is given from the date of possession, when in law
it is not permissible to give interest for the period prior to
the date of Notification u/s 4 of the Act. On the other
hand, the claimants have contended in the Appeals that
when the sale instances like Exhs. 30 and 31 were
proved, the Reference Court ought to have given higher
rate as per the rate mentioned in the sale instances.
There is also the grievance that the area to the extent of
20 % is reduced for giving the compensation.
15. Broadly, it can be said that the S.L.A.O. had
considered the sale instances of the year 1998 and had
held that the market price was more than ` 40/- per Sq.
feet for the sale instance land in the year 1998. The sale
instance at Exh. 31 used by the Reference Court was of
the transaction dated 04/09/1996. For consideration of
` 1.9/- Lakh, open space of the size 49.5 x 16.5 feet was
14 F.A. 1373...2003 - %5BJ%5D .odt
sold and this portion of house Nos. 1480 and 1481/1 was
situated at Bhoom. As per the description of the property
given in the sale instance, the total area sold comes to
around 816.7/- Sq. feet. Considering the consideration
given for this area, it can be said that the rate of
` 232.5/- per Sq. feet was given in the year 1996.
However, the Reference Court held that the area sold in
this sale deed was 1906 Sq. Fts. It appears that the 2
portions of the property described in the sale deed at the
beginning were considered as the portion sold, when only
the area of 816.7/- Sq. feet was sold. At this stage, it
needs to be observed that in the sale deed, the survey
number, on which two house properties were situated, is
not given in the sale deed. The properties were
described in assessment record of Municipal Council as
the house properties and so they were having all the
amenities and they were fully developed. Though only
open space is mentioned in the sale deed, house number
was given by the local body and so the possibility like the
presence of construction on the space can not be ruled
out.
16. The other sale instance proved by the
15 F.A. 1373...2003 - %5BJ%5D .odt
claimant is Exh. 30, which is dated 05/04/1995. The
area of 33 feet x 10.5 Mtrs. from S.No. 220 was sold
under the sale deed. To this property also in the
assessment record of the local body, number was given as
municipal house No. 2012. Thus, this property was also
having all the amenities of fully developed property and it
was considered as the house by the local body. The
aforesaid area was sold for the consideration of ` 3/-
Lakh and the area sold was around 1122 Sq. feet. Thus,
the rate was given around ` 267/- per Sq. feet. In this
matter also, the Reference Court committed mistake in
ascertaining the rate given to the land of the sale
instance. However, the rate of Exh. 30 was not
considered for awarding compensation. It can be further
said that the rates of both the sale deeds from Exhs. 30
and 31 were not used and applied by the Reference
Court.
17. No reason is given by the Reference Court as
to why it was giving the rate of ` 70/- per Sq. feet. It
can be said that the S.L.A.O. had considered the sale
instances in respect of S.Nos. 212 and 220 of highest rate
which were in respect of open space.
16 F.A. 1373...2003 - %5BJ%5D .odt
18. It is already observed that in Exhs. 30 and
31, though it is shown that they were open space, they
were house properties and they were given number as
such by local body. They were fully developed properties
situated within the local limits and as they were house
properties having independent number, they could have
been sold by mentioning house numbers. Same is not the
case in respect of the properties acquired in the present
matter. Unfortunately, in the evidence of S.L.A.O.
examined by the Govt., explanation was not sought by
the counsel of the claimant or the Govt. Pleader as to why
the sale instances at Exhs. 30 and 31 were not
considered. In any case, there is sufficient record of
aforesaid nature and so this Court holds that Exhs. 30
and 31 can not be considered as comparable sale
instances. Even in the claim made before the S.L.A.O.,
the rate was not claimed on the basis of Exhs. 30 and 31
and it was claimed as ` 150/- per Sq. feet without giving
any justification. These circumstances are brought on
record in the cross examination of the S.L.A.O. In the
cases like present one, the circumstance that the
possession was taken by the Govt. in the year 1984, can
not be ignored as it is relevant. The possibility of creation
17 F.A. 1373...2003 - %5BJ%5D .odt
of record of sale deeds of higher rate is always there, as in
future the S.L.A.O. is expected to ascertain the market
price and to prepare the Award. In view of such
possibility, the Courts are expected to closely scrutinize
the evidence of sale instance given by the claimant. It is
always necessary to ascertain as to whether the
consideration shown in the sale instances was the real
consideration. In one sale instance, meagre
consideration was paid in the presence of the Sub
Registrar and it was shown that the consideration of ` 1/-
Lakh was to be paid by the purchaser afterwards.
Further, the possibility of existence of construction on the
property described in the sale instance is there, as they
were described as house properties in the record of local
body. The value of the construction is not known and so,
the sale instances are not comparable sale instances.
19. In the present matter, only 2 pieces of land
from S.No. 220/4/6 were converted to non agriculture
land. At the time of conversion of the agriculture land to
non agriculture land, development plan is required to be
prepared by the owner and approval of Planning
authority is required to be obtained. In respect of S.No.
18 F.A. 1373...2003 - %5BJ%5D .odt
220, there was such development plan in existence, but in
the present matter, that development plan can not be
given much weight as the property was not actually
developed or sold on the basis of the development plan.
The development plan is prepared as per the
requirements of the owner and the steps which he wants
to take for development. It can be said that at the most
the maximum space which is required to be kept for
development of such pieces of land as per the
development rules can be considered. The circumstance
that the Govt. wanted to use all the 3 pieces of lands
together for the construction of residential quarters of
Govt. employees need to be kept in mind. The Govt.
must have submitted new development plan in respect of
3 properties. The State ought to have produced that
record in the References. Unfortunately that was not
done. The approach of the S.L.A.O. that in respect of the
portion which could not have been developed by the
owner due to the provisions of the High Way Act,
compensation can not be given in respect of the said
portion, was also not correct. This space was also owned
by the claimant and so if the Govt. wanted to acquire the
land even for road widening purpose, Govt. was required
19 F.A. 1373...2003 - %5BJ%5D .odt
to pay compensation in respect of that portion.
20. The observation made above shows that the
approach of the S.L.A.O. was not correct. It is already
observed that the 2 sale instances like Exhs. 30 and 31
can not be treated as comparable sale instances and the
Reference Court has given the compensation on the basis
of the rate given in Exh. 31. Both the sides have
challenged the decision of the Reference Court and the
challenge of the Govt. is on the other ground also, as
already quoted. The question arises as to how the market
rate can be ascertained in the present matters.
21. Both the sides placed reliance on some
reported cases on the procedure which needs to be
followed to ascertain the compensation in such cases. For
the State, learned A.G.P. placed reliance on the case
reported as (2005) 4 Supreme Court Cases - 789
[Viluben Jhalejar Contractor (Dead) by L.Rs. Vs. State
of Gujrat]. In this case the principles for determination
of market value are considered and discussed by the Apex
Court. The observations are at para No. 20, as under :
" The amount of compensation can
20 F.A. 1373...2003 - %5BJ%5D .odt
not be ascertained with mathematical
accuracy. A comparable instance has to
be identified having regard to the
proximity from time angle as well as
proximity from situation angle. For
determining the market value of the
land under acquisition, suitable
adjustment has to be made having
regard to various positive and negative
factors vis-a-vis the land under
ig acquisition by placing the two in
juxtaposition. The positive and negative
factors are as under :
Positive factors Negative factors
(i) smallness of size (i) largeness of area
(ii) proximity to a road (i) situation in the interior
at a distance from the
road
(iii) frontage on a road (iii) narrow strip of land
with very small
frontage compared to
depth
(iv) nearness to developed (iv) lower level requiring
area the depressed portion
to be filled up
(v) regular shape (v) remoteness from
developed locality
(vi) level vis-a-vis land under (vi) some special
21 F.A. 1373...2003 - %5BJ%5D .odt
acquisition disadvantageous
factors which would
deter a purchaser.
(vii) special value for an owner
of an adjoining property
to whom it may have some
very special advantage.
22. ig In view of the guide lines given by the Apex
Court and the submissions made by the learned A.G.P.
that Exh. 31 could not have been taken into consideration
as comparable sale instance as it was in respect of house
property, this Court holds that the Reference Court has
committed error in giving the compensation on the basis
of the price mentioned in Exh. 31. Though the rate given
by the Reference Court is not as per the rate mentioned in
Exh. 31, no reasoning is given as to why the rate of ` 70/-
per Sq. feet needs to be given, when the sale instance was
not comparable. The S.L.A.O. had considered the sale
instances in respect of open space of the property of S.No.
220 and also S.No. 212. There is substantive evidence of
S.L.A.O. in that regard and there is no dispute that the
rate mentioned in the table given in the Award of the
S.L.A.O. was there in the sale instances considered by the
22 F.A. 1373...2003 - %5BJ%5D .odt
S.L.A.O. This Court has no hesitation to hold that the
decision given by the Reference Court on the basis of Exh.
31 can not sustain in law. It needs to be kept in mind
that the burden was on the claimant to prove that he is
entitled to particular rate as the market price of the land
on the relevant date. When no sale instance of open
space which could have been compared was proved, no
material was there before the reference Court for giving
higher rate.
23. The S.L.A.O. had considered the sale deed
dated 24/02/1998, but as the copy of said sale deed was
not produced, it is difficult to say as to whether the said
land had the advantage of frontage of State road. It also
needs to be kept in mind that due to existence of State
road on one side of the land, on that side it would not
have been necessary to prepare one more road at the time
of development of the property. Some observations are
already made in respect of the development plan which
must have been prepared by the Govt. in respect of the
lands acquired. In the case reported as (2014) 16
Supreme Court Cases - 274 [Indian Council of Medical
Research Vs. T.N.Sanikop & Anr.] more observations
23 F.A. 1373...2003 - %5BJ%5D .odt
are made by the Apex Court on the principles which are
applicable in such cases for determining the market rate.
In that case, the market rate was reduced from ` 1.65
Lakh which was shown in the sale instance for 4 R. land
when the area acquired was 40 R. In the present matter
also, the circumstance that bigger areas are acquired than
the areas shown in the sale instances considered by the
S.L.A.O., can be considered. On that ground, the rate
could have been reduced to some extent, as some amount
would have been spent for development of the area
acquired as observed by the Apex Court. To what extent
the rate can be reduced depends on many factors as
observed by the Apex Court. It is already observed that
the acquired lands were in the vicinity of Govt. offices,
hospital, S.T. depot., District Court, school, college, etc.
One road was adjacent to these lands and main road,
Beed road, was at the distance of 50 - 100 Meters. In
view of these circumstances, this Court holds that if at all
some deduction can be made in the rate in view of the
guide lines given by the Apex Court, that deduction can
be at the most 33 %. There can not be deduction of area
while giving compensation and 2 different rates can not
be given for 2 different areas like the area adjacent to the
24 F.A. 1373...2003 - %5BJ%5D .odt
State road and area beyond that adjacent portion.
24. On the basis of the highest rate sale instance
available in the record of the S.L.A.O., this Court holds
that the market price of the land from the sale instance
on the relevant date was ` 473/- per Sq. Mtr. After
deducting 33 % value, the market price comes to ` 317/-
per Sq. Mtr. This Court holds that the compensation
needs to be given at this rate and in respect of the entire
area acquired in these References by the Govt. [viz. 40 R.,
30 R., 20 R.].
25. Learned A.G.P. placed reliance on reported
case viz. 2012 (4) ALL MR - 779 [Lalitkumar
Himmatlal Shah Vs. The State of Maharashtra &
Ors.]. In this case, this Court considered reported cases of
Apex Court viz. 2004 (5) ALL MR (SC) - 435 [R.L.Jain
(D) by L.Rs. Vs. DDA & Ors.] and [2004] 5 ALL MR
[SC] - 19 [ Smt. Lila Ghosh Vs. State of West Bengal].
At para No. 10, observations are made as under :
" The issue involved in that case
was whether in a case where
25 F.A. 1373...2003 - %5BJ%5D .odt
possession is taken before issuance of
Section 4 notification, the claimant is
entitled to interest for such anterior
period in accordance with Section 34
of the Act. The Hon'ble Supreme
Court while dismissing the appeals
filed by the claimants for grant of
interest on compensation from the
date of dispossession observed that the
normal rule of payment of interest
ig under Section 34 of the Act from the
date of dispossession till the date of
payment of compensation would
apply only in cases where the land
has been acquired after the issuance
of the preliminary notification under
Section 4 of the Act. The Supreme
Court observed that the scheme of the
Act does not contemplate taking of
possession prior to the issuance of
notification under 4 (1) of the Act
and if the possession is taken prior to
the said notification, it will be dehors
the Act. It is for this reason that
both Sections 11 (1) and 23 (1)
enjoin the determination of the
market value of the land on the date
of publication of notification under
Section 4 (1) of the Act for the
purpose of determining the amount of
26 F.A. 1373...2003 - %5BJ%5D .odt
compensation to be awarded for the
land acquired under the Act. The
Hon'ble Supreme Court observed that
the provisions show in unmistakable
terms that the publication of
notification under Section 4 (1) is the
sine qua non for any proceedings
under the Act. In the facts of that
case, the Collector had granted
interest at the rate of nine per cent
ig from the date of possession for a
period of one year and at the rate of
15 per cent till the date of passing of
the award. The Delhi Development
Authority had filed an appeal before
the High Court and the High Court
while allowing the appeal filed by the
Authority had held that the interest
awarded under Section 34 of the Act
was without jurisdiction and had set
it aside. "
26. In view of the observations made by the Apex
Court and this Court with regard to the permissibility of
giving interest in respect of the period between the date
of possession and Section 4 notification when possession
was taken prior to Section 4 Notification, this Court holds
that the Reference Court has committed mistake in giving
27 F.A. 1373...2003 - %5BJ%5D .odt
interest in respect of the said period. It is already
observed that in the present matter, the interest @ 9 %
per annum and also @ 15 % per annum is given from the
date of possession, year 1984, when Notification was
published u/s 4 of the Act, in the year 1999. In view of
the law laid down in the aforesaid cases, this Court holds
that the decision of the Reference Court needs to be
interfered with for setting aside the said part of the order.
27. In the present matters, the record
subsequently produced shows that, in view of the
direction given by this Court, rental compensation was
paid even when the present Appeals were pending. On
this point, reliance was placed by the learned A.G.P. on
the case reported as (2013) 14 Supreme Court Cases - 8
[ Kazi Akiloddin Sujaoddin Vs. State of Maharashtra
& Ors.]. In this case, the Apex Court has laid down that
the Court has no power to order to give rental
compensation on the basis of the decision given by the
Reference Court when the decision is under challenge in
the First Appeal. Thus, if more rental compensation is
already given, that needs to be adjusted.
28 F.A. 1373...2003 - %5BJ%5D .odt
28. In the result, following order is made.
ORDER
[i] All the Appeals, the Appeals filed by the
claimants and the Appeals filed by the Govt.,
are partly allowed.
[ii] The Judgments and Awards of the Reference
ig Court are modified to give the rate of ` 317/-
per Sq. Mtrs. This rate is to be given in
respect of the entire area of the claimants
acquired by the Govt.
[iii] The claimants are entitled to solatium of
30 % on the compensation amount.
[iv] The claimants are entitled to the component
of 12 % and it is to be paid from the date of
Notification published u/s 4 of the Land
Acquisition Act till the date of Award.
[v] The interest @ 9 % per annum is payable on
the compensation amount for the period of
one year from the date of Notification u/s 4
of the Land Acquisition Act and the interest
@ 15 % per annum is payable from the date
of Award till the date of realization of the
compensation amount.
29 F.A. 1373...2003 - %5BJ%5D .odt
[vi] The rental compensation is to be calculated
on the basis of aforesaid compensation fixed
in these proceedings. The amount of
rental compensation already paid is to be
adjusted against the compensation awarded
to the claimants, against the amount which is
now payable to the claimants if higher
rental compensation is already paid. If
the claimants are entitled to get more
amount than the amount already deposited
ig by the Govt. in the Court, they will be
entitled for the execution of the present
Judgment and Award. Similarly, if more
amount is already given by the Govt., the
Govt. will be entitled to use the present
decision for recovery of the amount paid in
excess.
[vii] To aforesaid extent the Judgments and
Awards of the Reference Court are set aside.
[viii] Award is to be prepared accordingly.
[ix] Authenticated copy of this Judgment be
given to the parties.
[T.V.NALAWADE, J.]
KNP/F.A. 1373...2003 - %5BJ%5D .odt
