Bombay High Court
State Of Maha vs Ramesh Vithalrao Patil Died Lrs & ... on 21 September, 2016
Bench: A.V. Nirgude
(1) fa1439.03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1439 OF 2003
WITH
CIVIL APPLICATION NO. 15660 OF 2013
AND
CROSS-OBJECTION (ST.) NO. 7243 OF 2013
The State of Maharashtra .. Appellant
Through the Collector,
Osmanabad.
ig Versus
Ramesh s/o. Vithalrao Patil (died) .. Respondents
Through his LRs.
1. Smt. Rupa w/o. Ramesh Patil,
Age. 40 years, Occ. Household,
R/o. Omerga, Dist. Osmanabad.
2. Anjali Ramesh Patil,
Age. 22 years, Occ. Education,
R/o. Omerga, Dist. Osmanabad.
3. Amit Ramesh Patil,
Age. 21 years, Occ. Education,
R/o. Omerga, Dist. Osmanabad.
4. Shilpa Ramesh Patil,
Age. 19 years, Occ. Education,
R/o. Omerga, Dist. Osmanabad.
5. Sujit Ramesh Patil,
Age. 11 years, Occ. Education,
Minor under guardianship of mother,
Smt. Rupa Ramesh Patil,
R/o. Omerga, Dist. Osmanabad.
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(2) fa1439.03
Mr.S.P. Sonpawale, A.G.P. for the appellant.
Mr S.B. Gorde Patil h/f. Mr. V.V. Ingale, Advocate for
respondent nos. 1 to 5.
CORAM : A.V.NIRGUDE, J.
DATED : 21.09.2016
ORAL JUDGMENT :-
1. The State of Maharashtra has filed this appeal
challenging judgment and award dated 29th April, 2002
under section 18 of the Land Acquisition Act and awarding
enhanced compensation to the respondents.A cross-
objection is also filed this appeal seeking enhancement
in the award amount.
2. The facts leading to this litigation, in short,
can be stated as under :-
3. Original respondent/claimant - Ramesh was owner
of land Survey No.336 admeasuring 1 H 57 R (1,70,973 Sq.
Ft.), situated at Omerga, Dist. Osmanabad. The Executive
Engineer of Lower Terna Project requested the District
Collector to acquire this land for the purpose of
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construction of a housing colony at Omerga. On 27 th May,
1989 the land was measured and possession was taken. On
the same day, notification under section 4 of the Land
Acquisition Act was issued and the same was served on the
original claimant, who put forward his claim and claimed
compensation at the rate of Rs.90 per sq. ft. He placed
reliance on various sale-deeds and other documents. The
award was passed on 10th March, 1994. The Land
Acquisition Officer awarded compensation of Rs.32,000/-
per hectare and so the Reference came before the Civil
Court. The respondent/claimant submitted that the land
was situated adjacent to the National Highway No.9 and is
also situated near Ganesh Chitra Mandir and Solapur
Octroi Naka of Municipal Council, Omerga. The land thus
was situated on the outskirt of Omerga Municipal limit.
He also pointed out that various developments were taking
place around the land in question. The infrastructure
facilities like electricity, water supply, transportation
etc. were available. He also pointed out that he had
agreed to sell pieces of this land to various persons.
(4) fa1439.03
The claimant, therefore, sought compensation at the rate
of Rs.90/- per sq. ft. The total claim of the claimant,
thus, was Rs.2,56,45,500/-. The respondent/ claimant had
already received a sum of Rs.1,05,997/-.
4. The State of Maharashtra opposed the claim. The
learned Judge of the Reference Court framed issues and
came to a conclusion that the market value of the land on
the day of notice under section 4 of the Land Acquisition
Act was Rs.40/- per sq. ft. and not Rs.90/- as claimed.
The State of Maharashtra filed the present appeal. On the
other hand, the respondent/claimant filed cross-objection
against this judgment.
5. The question before me is - what could be the
market value of the land in question on the date of
notice under section 4 of the Land Acquisition Act? In
order to find answer to this question, one must go
through the evidence that came on record. The
respondent/claimant adduced evidence to indicate and
(5) fa1439.03
establish that the land in question is situated very
close to Omerga town. He could also show that the land
was suitable for putting up a building. The land has
availability of water and electric supply. There is no
statutory impediment for developing the land. It is also
proved that the land is situated very close to a national
highway. The respondent/claimant also proved through
depositions that in the vicinity of the land in question,
various urban facilities are available. The learned
Judge of the Lower Court believed this part of the
evidence.
6. In addition to these circumstances, the
respondent/claimant examined three witnesses, who stated
on oath that they had agreed to purchase smaller plots
out of same survey number from the original claimant
Ramesh in or about 1988. They stated that respondent/
claimant - Ramesh had agreed to transfer those plots to
them admeasuring 30 x 25 ft. and the agreed consideration
was Rs.1,00,000/-. They stated that sale-deeds were
(6) fa1439.03
executed in 1994 & 1995. In addition to this evidence,
the respondent/claimant produced on record one sale-deed
(Exh.35). This was in respect of nearby plot of land
admeasuring 100x25 ft. sold for the sum of Rs.2,50,000/-.
The transaction took place in 1995. This sale instance
is not quite useful for our purpose because the
transaction took place much later in time. What is
pertinent to note in this transaction, however, is that
the plot in question was very close to the acquired land
and that the plot was purchased for setting up a saw
mill. This part of the evidence established that the
acquired land had potential for non-agricultural use.
The land could have been used for commercial purpose as
well. It is located near National Highway. Having
regard to these favourable circumstances, one has to
determine the market price of the land in question.
7. The witnesses of the claimant admitted that they
had agreed to purchase pieces of land at the rate of
Rs.133/- per sq. ft. These witnesses are trustworthy
(7) fa1439.03
mainly because the agreements executed in their favour in
1988 were fructified and the sale-deeds were executed
indicating the same price. This would show that the
agreements of 1988 were genuine documents. I am,
therefore, inclined to hold that in 1988 the market value
of the lands which claimants sold to the witnesses was
around Rs.133/- per sq. fts. It is common knowledge that
the land situated near towns like Omerga are slowly sold
for urban development. The land owners divide their
lands into plots. In most of the cases the lands are
first converted into non-agricultural use, 'lay-outs' are
prepared as per building by-laws and then plots are sold
to individuals. Sometimes a group of people buys the
plot of land for their proposed housing society. When
such development becomes eminent, prices of land rise.
Learned Judge of the Lower Court discarded the evidence
which indicated that original claimant - Ramesh had
agreed to sell part of same survey number at the rate of
Rs.133/- per square foot, mainly because the agreements
were not registered. As discussed above I am rather
(8) fa1439.03
inclined to believe this part of the claimant's evidence.
For reasons mentioned above I hold that the learned Judge
of the Lower Court erred in discarding the evidence of
the claimant's witnesses. I hold that their transactions
with the claimants were genuine.
8. On the other hand the learned Judge of the Lower
Court placed heavy reliance on the documents at Exh. 33
which is a sale deed. This document was also produced by
the claimant. This document indicates that a plot in the
town in 1985 fetched market value of Rs.25 per sq. fts.
Learned Judge then assumed that there would be steady
rise in market price at the rate of 10% to 12% in every
year 1985 to 1990. He therefore held that the market
price of the land in question could not be more than
Rs.40 per sq. fts. I think the learned Judge erred in
placing over-reliance on the sale deed Exh. 33. The land
of the sale deed Exh. 33 admittedly is not situated near
highway it is situated inside the town. It was a
residential area. On the other hand the land in question
(9) fa1439.03
has different topography and different potential as
discussed above.
9. I am rather inclined to place reliance on
agreement for sale Exh.30 to 32 in which the market rate
of the land was shown as Rs.133/- per sq. fts. On the day
of Notification under Section 4 of the Act in my view the
market value of the land would not be less than Rs.90 per
sq. ft. Along with this sale-deed, other circumstances
were required to be taken into consideration specially
the agreement for sale at Exhs.30, 31 and 32, in which
the market rate was mentioned as Rs.133/- per sq. ft. If
the Court would not discard this piece of evidence, as
untrustworthy, then this evidence ought to be utilized
for determining the market value of the land in question.
In my view, on one hand, there is a calculation which
indicated market value at the rate of Rs.60/- per sq. ft.
On the other hand, there is a document which would
indicate that the market price of the land was Rs.133/-
per sq. ft. The learned Judge ought to have made average
( 10 ) fa1439.03
of both. The average of both these prices comes to
Rs.96.5.
10. Having regard to this calculation, I have no
hesitation to dismiss the appeal filed by the State. In
view of this the State Appeal would get dismissed. On the
other hand the cross-objection would succeed. The claim
of the original claimant is allowed in terms of following
order :-
O R D E R
i. The first appeal filed by the State is
dismissed.
ii. The Cross-objection filed by the
claimants/respondents is allowed.
iii. The respondents/claimants are entitled
to receive amount of enhanced compensation to
the extent of Rs.1,21,67,910/- (Rupees One Crore
Twenty One Lakh Sixty Seven Thousand Nine
Hundred Ten Only) against the acquisition of
land admeasuring 1 Hectare 57 R out of the
Survey No.336 situated in Omerga, Tq. Omerga,
Dist. Osmanabad.
iv. The claimants/respondents are entitled
to get solatium at the rate of 30%, at interest
at the rate of 9% per annum for the first year
and interest at the rate of 15% per annum for
( 11 ) fa1439.03
the subsequent years over the enhanced amount of
compensation.
v. The claimants/respondents are also
entitled to get additional amount at the rate of
12% per annum over the enhanced amount of
compensation as contemplated by Section 23 (1A)
of the Land Acquisition Act for the period
commencing on and from the date of Notification
to the date of Award or to the date of taking
possession of the land, whichever is earlier.
vi. The claimants/respondents are also
entitled to get interest in lieu of rent at the
rate of 9% per annum for the first year and at
the rate of 15% per annum for the subsequent
years over the enhanced amount of compensation
from the date of taking over possession of the
land till the date of Award i.e. from 13.05.1989
to 10.03.1994.
vii. The appellant/State is directed to
deposit the entire amount of compensation
including solatium interest etc. within a period
of six months from the date of this Order.
viii. The award be prepared accordingly.
ix. In view of disposal of the First
Appeal and Cross-objection, connected Civil
Application does not survive and stands disposed
of accordingly.
[A.V.NIRGUDE,J.]
snk/2016/ SEP16/@
