Bombay High Court
Mah. Industrial Dev. Corporation ... vs Jammanbai W/O Sk. Bahira (Dead) ... on 24 October, 2016
Bench: V.A. Naik
2410FA1183.10-Judgment 1/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 1183 OF 2010
APPELLANT :- Maharashtra Industrial Development
Ori.Deft.No.3 (On RA) Corporation having its office at Marol
Industrial Estate, Andheri East, Mumbai and
havnig its Regional Office at By Pass Road,
Amravati, through its Chief Executive
Officer.
...VERSUS...
RESPONDENTS :- 1) ig Jammanbai w/o Sk. Bahira, Since dead
Ori.Claimant No.1 through her legal representatives, 2,5,6,8 & 9.
(On RA)
2) Sk. Lalu Sk. Bahira, aged about 65 years,
occupation agriculture.
3) Sk. Bismilla Sk. Bahira Since dead through
legal representatives
i. Smt.Nazambee wd/o Sk. Bismilla, aged
about 57 years, occupation Household,
ii. Smt. Jaynabee wd/o Sk. Yunus, aged about
37 years, occupation Household, R/o
Ambejogai, Dist. Parbhani.
iii. Sk. Ibrahim s/o Sk. Bismilla, aged about 35
years, occupation Labourer,
iv. Sk. Shabbir s/o Sk. Bismilla, aged about 33
years, occupation Labourer,
v. Sk.Foriz s/o Sk. Bismilla, aged about 31
years, occupation Labourer,
vi. Sk. Shakil s/o Sk. Bismilla, aged about 30
years, occupation Labourer,
vii. Sk.Afroz s/o Sk. Bismilla, aged about 28
years, occupation Labourer,
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viii. Sk.Ishan s/o Sk. Bismilla, aged about 26
years, occupation Labourer,
4) Sk. Salim Sk. Bahira since dead through his
legal representatives,
a. Smt. Bibibai wd/o Sk. Salim, aged about 53
years, occupation Household,
b. Sk.Mehaboob s/o Sk. Salim, aged about
Adult, occupation Labourer,
c. Sk. Javed s/o Sk. Salim, aged about 30
ig years, occupation Labourer,
d. Sk. Akbar s/o Sk. Salim, aged about 25
years, occupation Labourer,
e. Sk.Ansaer s/o Sk. Salim, aged about 25
years, occupation Labourer,
5. Sk. Anis s/o Sk. Bahira, aged about 48 years,
occupation Agricjlturist,
6. Sk. Mohmmad s/o Sk. Bahira, ageda bout 50
years, occupation 50 years, occupation
Agriculture,
7. Sk.Ramzan Sk. Bahira, since dead through
his legal representatives,
i. Smt.Chhotibai wd/o Sk. Ramzan, aged about
57 years, occupation Household,
ii. Sk.Salman s/o Sk. Ramzan, aged about 37
years, occupation Labourer,
iii. Sk. Ismail s/o Sk. Ramzan, aged about 57
years, occupation Labourer,
iv. Smt.Jubedabee Sk. Subhan, aged about 33 yearrs,
occu. Household, R/o Chikhali, District
Buldhana.
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v. Sk.Husain s/o Sk. Ramzan, aged about 31
years, occupation Labourer,
vi. Smt. Saddobee w/o Sk. Chand, aged about
30 years, occupation Household, resident of
Shirpur, Taluka Malegaon, Dist. Washim.
8. Smt. Maidbee w/o Sk.Biram, aged about 60
years, occupation Household,
9. Smt.Chandbi w/o Sk. Chand, aged about 59
years, occupation Household,
ig All resident of Gawalipura, Akot Road,
Akola.
Ori.Deft.No.1 10. State of Maharashtra, through Collector,
Akola.
Ori.Deft. No.2 11. Collector Akola, District Akola.
Ori.Deft. No.3 12. Sub-Divisional Officer and Land Acquisition
Officer, Akola District Akola.
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Mr.Agnihotri, counsel h/f Mr. M.M.Agnihotri, counsel for the appellant.
None for the respondent Nos.1 to 9.
Mr. A.A.Madiwale, Asstt. Govt.Pleader for the respondent Nos.10 to 12.
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CORAM : SMT. VASANTI A NAIK &
KUM. INDIRA JAIN, JJ.
DATED : 24.10.2016
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this first appeal, the appellant-Maharashtra Industrial
Development Corporation has challenged the judgment of the reference
court dated 11/09/2009, partly allowing the reference application filed
2410FA1183.10-Judgment 4/14
by the respondents-claimants and directing the appellant-corporation to
pay enhanced compensation at the rate of Rs.1,000/- per are
(Rs.1,00,000/- per hectare) for their acquired land after deducting the
amount that was already paid to the claimants towards compensation in
terms of the award passed by the Special Land Acquisition Officer.
2. Few facts giving rise to the appeal are stated thus :-
The respondent Nos.1 to 9 were the joint owners of field
survey Nos.11, 138 and 12, admeasuring 2 hectares 68 are, 2 hectares
57 are and 4 hectares 74 are respectively. The appellant-corporation
desired to acquire the said land and, therefore, the notification under
section 32(2) of the Maharashtra Industrial Development Act, 1961 was
published in the government gazette on 13/08/1992. The notification
under section 32(1) of the Act was published on 01/06/1995. The
respondents-claimants had filed their objection before the Land
Acquisition Officer and had claimed compensation at the rate of Rs.50/-
per sq.ft. The Land Acquisition Officer passed an award on 30/03/1997
and held that the respondent-claimants were entitled to compensation
at the rate of Rs.24,000/- per hectare for the land in survey Nos.11 and
138 and Rs.25,000/- per hectare for the land in survey No.12.
Compensation was also awarded for the mango, berry, neem trees that
were standing on the acquired land. Being aggrieved by the grant of
meager compensation, the respondents-claimants filed a reference that
was registered as L.A.C. No.350 of 1997. By the said reference, the
respondents-claimants sought compensation for their land at the rate of
2410FA1183.10-Judgment 5/14
Rs.50/- per sq.ft. The respondents-claimants also sought compensation
for the wells, the servant quarters and cattle sheds and enhanced
compensation for the mango, berry and neem trees.
3. The appellant-Corporation filed the written statement and
denied the claim of the respondents-claimants. It was denied that the
Land Acquisition Officer has granted meager compensation and that it
was liable to be enhanced. It was denied that the acquired land was at a
stones throw distance from village Yeota and village Kumbhari. It was
denied that the Land Acquisition Officer failed to consider the rising
prices of the agricultural lands after 1991. It was denied that the land
had non agricultural potential and that the market value of the land
was Rs.50/- per sq.ft. The appellant-corporation denied that the
claimants were entitled to the compensation for the bands, the wells
and the other construction on the land. The appellant-corporation
sought for the dismissal of the reference.
4. After the written statement was filed, the reference court
framed the issues and the claimants tendered the oral evidence of
Manik Murumkar and Sheikh Mohammad, the power of attorney holder
for the claimants. Certain sale deeds were also placed on record to
substantiate the claim. The reference court, on an appreciation of the
evidence on record, by the judgment dated 11/09/2009 partly allowed
the reference filed by the respondents-claimants and directed the
appellant-corporation to pay compensation to the claimants for their
2410FA1183.10-Judgment 6/14
acquired land at the rate of Rs.1,000/- per are, that is Rs.1,00,000/- per
hectare. The reference court rejected the claim of the respondents-
claimants for additional compensation for the trees and compensation
for the wells and bands. The appellant-corporation is aggrieved by the
judgment of the reference court as according to the corporation, the
reference court has granted the compensation to the respondents-
claimants on a higher side.
5.
Shri Agnihotri, the learned counsel for the appellant, has
submitted that for determining the market value of the land on the date
of the notification under section 32(2) of the Act dated 13/08/1992,
the reference court has relied on two sale deeds. It is stated that the
sale deeds pertain to village Shivani and not to village Yeota, where the
acquired lands are situated. It is stated that the reference court was not
justified in relying on the sale deed at exhibit-33/3 whereby 5 are of
land from village Shivani was sold on 13/08/1992 for a sum of
Rs.50,000/-. It is stated that the acquired lands are situated at Yeota
and the sale deed at exhibit-33/3 pertains to the sale of land at Shivani
and the reference court could not have relied on the same for enhancing
the compensation. It is stated that since the sale deed on which the
reference court has relied for enhancing the compensation is not a sale
deed in respect of land from the same village in which the acquired
lands of the respondents-claimants are located, the judgment of the
reference court is liable to be set aside.
2410FA1183.10-Judgment 7/14
6. Shri Madiwale, the learned Assistant Government Pleader
appearing on behalf of respondent Nos.10 to 12, states that the Special
Land Acquisition Officer was justified in fixing the compensation of the
land at the rate of Rs.24,000/- and Rs.25,000/- per hectare. It is stated
that the reference court was not justified in enhancing the
compensation. It is stated that in the circumstances of the case, this
court may allow the appeal filed by the appellant-corporation as it
appears that the grant of compensation at the rate of Rs.1,00,000/- per
hectare is on a little higher side.
7. On hearing the learned counsel for the parties and on a
perusal of the record and proceedings, it appears that the following
points arise for determination in this first appeal :-
(I) Whether the reference court was justified in granting
compensation at the rate of Rs.1,00,000/- per hectare
and/or whether the compensation is liable to be reduced?
(II) What order?
8. To answer the aforesaid points, it would be necessary to
consider the evidence tendered by the respondents-claimants on record.
Firstly, we would consider the oral evidence of the respondents-
claimants. The respondents-claimants had examined Sheikh
Mohammad, their power of attorney holder, on their behalf. Sheikh
Mohammad is not only the power of attorney holder for the other
2410FA1183.10-Judgment 8/14
claimants, but is a claimant himself. Sheikh Mohammad stated in his
evidence that the compensation awarded by the Special Land
Acquisition Officer was on a very lower side. It was stated by Sheikh
Mohammad in his examination-in-chief that the acquired land had great
non-agricultural potential and the land was situated in the proximity of
Municipal Corporation area of Akola City. It was stated that the
claimants used to take dry as well as irrigated crops from the land. It
was stated that wells were situated in the acquired lands and there was
enough water in the wells for cultivation. It is stated that the lands were
surrounded by the sugarcane zone. Sheikh Mohammad deposed about
the two sale deeds that were executed in respect of land in village
Shivani. It was stated that as per the lands that were sold by the sale
deeds at exhibit-33/2 and 33/3, it could be proved that the market
value of the land of the claimants was very high. Sheikh Mohammad
mentioned about the sale deeds dated 08/05/1984 and 11/02/1991.
By the first sale deed of the year 1984, 3 acres of land from village
Shivani was purchased by Haji Lal for a sum of Rs.4,65,000/-. It was
stated that by the second sale deed dated 11/02/1991, 5 are of land
was sold at Rs.50,000/-. Sheikh Mohammad relied on these sale deeds
and further stated that the lands of claimants were superior than the
lands that were sold by the aforesaid sale deeds. Sheikh Mohammad
sought compensation for the bands and the wells. Apart from Sheikh
Mohammad, the claimants examined Manik Murumkar. Manik
Murumkar stated in his evidence that he had purchased 5 are of land
from Trimbak Pande for a consideration of Rs.50,000/-. Manik
2410FA1183.10-Judgment 9/14
Murumkar placed a certified copy of the sale deed on record. Manik
Murumkar stated that the distance between the land that he had
purchased and the land of the respondents-claimants was only 500
meters. It is stated that the market value of the land of the
respondents-claimants was more than the land that was purchased by
him. In the cross-examination, Manik Murumkar denied the suggestion
that he had purchased the land at Shivani at a higher rate and that the
distance between the acquired land and the land purchased by him was
not as per his statement in his examination-in-chief. There is nothing in
the cross-examination of Manik Murumkar to falsify the case in his
examination-in-chief.
9. Apart from the oral evidence of Manik Murumkar and
Sheikh Mohammad, the respondents-claimants had tendered two sale
deeds on record. Both the sale deeds are exhibited and marked as
exhibits-33/2 and 33/3. The sale deed at exhibit-33/2 pertains to 3
acres of land from village Shivani that was purchased by Haji Lal for a
consideration of Rs.4,65,000/- on 08/05/1984. Exhibit-33/3 is the
certified copy of the sale deed by which Manik Murumkar had
purchased 5 are of land from village Shivani for a consideration of
Rs.50,000/-. The reference court has relied only on exhibit-33/3 to
enahance the compensation and has discarded the sale deed at exhibit-
33/2 solely on the ground that the sale deed was executed in the year
1984 and did not have any proximity of time, with the notification
issued under section 33(2) of the Act on 13/08/1992. The only reason
2410FA1183.10-Judgment 10/14
for discarding the sale deed at exhibit-33/2 is that it was executed
about seven years earlier. We do not find that the reference court was
justified in discarding the sale deed at exhibit-33/2, dated 08/05/1984
solely on the ground that it was executed before the issuance of the
notification dated 13/08/1992. The sale deeds executed after the
issuance of a notification cannot be considered while determining the
market value of the land, however, the sale deeds that are executed
earlier in point of time could be considered while determining the
market value. Market value of the land is that value which a willing
purchaser is ready to offer to the willing seller. We have to consider the
market value as on 13/08/1992. Since the subsequent sale deeds
cannot be considered as they could be fictitiously created just for
seeking enhanced compensation, it would always be safer to consider
the old sale deeds and then determine the compensation by adding the
appreciation value as it is a matter of common knowledge that the
prices of the properties would not normally dwindle. It is well settled
that old awards and sale deeds in respect of the lands that are situated
in the near vicinity of the acquired land could always be considered for
determining the compensation by considering the market value of the
land as on date of which they are executed and further adding the
appreciation value, to the same. Normally, the appreciation is to the
extent of 7½% or 10% every year. It was necessary for the reference
court to have considered the sale deed at exhibit-33/2 to determine the
market value of the land when the claimants had only produced two
sale deeds and the appellant-corporation had produced none. It is a
2410FA1183.10-Judgment 11/14
well settled that the market value of the land could be determined
either by the income capitalization method or comparable sale
instances. There is no evidence for determining the market value of the
land on the basis of income capitalization method. Hence, the reference
court has rightly applied the other method for determining the market
value of the land i.e. on the basis of the comparable sale deeds. We
have already recorded herein above that the reference court was not
justified in discarding the sale deed at exhibit-33/2 on the ground that
it was executed at an earlier point of time. Now it would be necessary
to consider whether the sale deeds are the sale deeds of comparable
land. The sale deeds at exhibits-33/2 and 33/3 are in respect of the
land that is situated at a distance of only 500 meters from the land of
the respondents-claimants. It is the evidence of the witnesses examined
on behalf of the claimants that the land of the respondents-claimants is
superior and also possesses non-agricultural potential. The sale deed at
exhibit-33/2 shows that the land admeasuring 3 acres was sold for a
consideration of Rs.4,65,000/- on 08/04/1984. If the land that is
situated only 500 meters away from the land of the claimants could
fetch Rs.4,65,000/- for 3 acres on 08/05/1984, it is difficult to follow as
to how similar agricultural land could fetch only a sum of Rs.24,000/-
or Rs.25,000/- per hectare as on 13/08/1992. It would be necessary to
hold that 1 acre of land was valued at more than Rs.1,50,000/- as on
08/05/1984. If that be the price of the land that was situated nearly
500 meters away from the land of the respondents-claimants, the
respondents were entitled to more compensation than that was
2410FA1183.10-Judgment 12/14
determined by the reference court. Though the claimants had filed a
cross-appeal, we have dismissed the same for want of prosecution. We
were not inclined to allow the appeal filed by the claimants in the
entirety and, therefore, the appeal would have been dismissed to certain
extent. Hence, we dismissed the appeal filed by the claimants bearing
First Appeal No.534 of 2010 for want of prosecution, as the appeal
could not have been partly dismissed in the absence of the appellant in
view of the provisions of Order XLI Rule 17 of the Code of Civil
Procedure.
10. Be that as it may, from the evidence tendered by the
claimants, it is apparent that the market value of the land of the
claimants was more than Rs.1,00,000/- per hectare. We find that the
reference court has unduly deducted the amount to the extent of 90%
towards development as the land was agricultural land. The reference
court has made a reference to the sale deed at exhibit-33/3, on which it
had relied, for making huge deduction for development, as 5 are of land
was sold in village Shivani for Rs.50,000/-. If the land sold by
exhibits-33/2 and 33/3 were also agricultural lands, we fail to gauge as
to how the reference court could have deducted the amount towards
development. The reference court was not justified in making the
deduction to the extent of 90% for the reasons stated in para-21 of the
judgment of the reference court. In fact, deduction could not have been
made by the reference court at all, as the lands sold by exhibits-33/2
and 33/3 were agricultural lands and when the sale deeds of
2410FA1183.10-Judgment 13/14
agricultural lands are considered while determining the market value of
the acquired agricultural land, there is no question of making any
deductions. It is apparent from the sale deed at exhibit-33/2 that
3 acres of land at village Shivani, that was only 500 meters away from
the acquired land, was sold for a consideration of Rs.4,65,000/- on
08/05/1984. As per the law laid down by the Hon'ble Supreme Court,
there would be an appreciation in the value of land at 10% per annum
for every subsequent year. It would be worthwhile to refer to the
judgments of the Hon'ble Supreme Court, reported in AIR 2002 SC
1558 (Special Land Acquistion Officer v. Mohd. Hanif Sahib Bawa
Sahib), (2008) 14 SCC 745 (General Manager, Oil and Natural Gas
Corporation Limited v. Rameshbhai Jivanbhai Patel and another)
and 2011 (4) Mh.L.J. 179 (State of Maharashtra v. Shantaram
Govind Tandel and others) in this regard. If the land situated at a
distance of 500 meters from the acquired land could fetch almost
Rs.1,50,000/- for 1 acre in May, 1984, it would be necessary to add
10% every year to the said value for about 8 years as the notification
under section 33(2) of the Act was issued in this case on 13/08/1992.
If the land was valued in the year 1984 at Rs.1,50,000/- per acre, the
same would have been valued at Rs.3,75,000/- per hectare. If we add
10% for the 8 subsequent years, the approximate escalation could be
computed at Rs.3,00,000/-. If the amount of escalation is added to the
amount of Rs.3,75,000/- that was the market value of 1 hectare of land
in May, 1984, the approximate value of 1 hectare of land on the date of
the section 33(2) notification, would be nearly Rs.6,75,000/-. Thus, it
2410FA1183.10-Judgment 14/14
is apparent that the market value of the land of the respondents-
claimants could have been Rs.6,75,000/- per hectare on 13/08/1992,
without deduction. Hence, it cannot be said that the grant of
compensation at the rate of Rs.1,00,000/- per hectare for the acquired
land is on the higher side. Though we find that the sale deed at exhibit-
33/3 could also be relied upon, more weightage needs to be granted to
the sale deed at exhibit-33/2 as by the said sale deed a larger tract of
land was sold and by the sale deed at exhibit-33/3 a small portion of
the land was sold and we are concerned in this case with a large tract of
land and not a small plot. In the circumstances of the case, on a reading
of the oral and documentary evidence on record, we are firmly of the
view that it would not be possible to allow the appeal filed by the
appellant-corporation and set aside the order of the reference court on
the ground that the compensation awarded by the reference court is on
a higher side.
11. For the reasons aforesaid, we dismiss the appeal filed by
the appellant-corporation with no order as to costs.
JUDGE JUDGE
KHUNTE
