The State Of Mah. Thr. The ... vs Savatram Ramprasad Mills Thr. Its ...
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0308 FA  1093/2012                               1                                         Judgment




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH AT NAGPUR.


                       FIRST APPEAL NO. 1093/2012 




1]     The State of Maharashtra,
       Through the Collector, Akola,
       represented by Special Land 
       Acquisition Officer, Akola,
       Tq. & District Akola (K.P.M.P.).

2]     The Executive Engineer, Akola,
       Patbhandhare Vibhag,
       (Saravazonik), Akola,
       Tq. & District - Akola.                                                 APPELLANTS


                                      .....VERSUS.....



Savatram Ramprasad Mills, Akola,
A Unit for National Textile Corporation
(M.N.) Ltd., Subsidiary of National Textile
Corporation, A Government of India
Undertaking through its General
Manager, Wajirchand Mulkraj Kakkar,
Aged about 52 years, Occu: Service,
R/o. Akola, Tq. & District Akola.                                               RESPONDE NT


Shri M.A. Kadu, AGP for appellants.
Shri A.S. Mahadia, counsel for respondent.




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 0308 FA  1093/2012                               2                                         Judgment



                 CORAM  : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.

               DATE     : AUGUST 03, 2017.


ORAL JUDGMENT :  

This appeal takes an exception to the judgment and

award passed by 3rd Joint Civil Judge (Sr.Dn.), Akola in L.A.C. No.

80/1998 on 02/02/2011.

2] Brief facts of the appeal, can be stated as follows:

Respondent is the owner of the plot bearing no. 39,

Sheet No.27-A, situated at Akola. Out of this plot, appellant has

acquired the area adm. 320 sq.mtrs. for the construction of bridge

on river Morna, by virtue of the Notification issued under section

4(1) of the Land Acquisition Act (For short, "Act"). It was published

in the local newspaper on 26/06/1997. Thereafter Notification

under section 6 of the Act was issued on 18/08/1997.

3] Prior to that, the Collector, Akola had sent a letter to

the respondent on 11/12/1996 giving a proposal for the purchase of

the said land at the rate of Rs.2,320/- per sq.mtr.. Respondent

herein had sent a reply to the said letter on 17/12/1996 showing

0308 FA 1093/2012 3 Judgment

his readiness to sell the said piece of the land to the Collector at the

ready reckoner price of Rs.4,640/- per sq.mtr.. By his letter dt.

01/01/1997, the Collector, Akola accepted the said rate of

Rs.4,640/- per sq.mtr.. In response thereto, by the letter dated

04/01/1997, Respondent further informed the Collector that after

obtaining the no objection and consent letter from its Head Office,

the sale would be executed. In March-1997, on demand of

appellant, possession of the said land was delivered by the

respondent to the appellant.

4] After the Notification under section 4(1) of the Act was

issued on 26/06/1997, respondent brought all these facts to the

notice of SLAO, vide his letter dated 31/07/1997. After the

Notification under section 6 of the Act was issued on 18/08/1997,

respondent again brought these same facts to the knowledge of

SLAO by letter dated 09/10/1997. However, the SLAO by his

award, granted paltry compensation at the rate of Rs.260/- per

sq.mtr.

 0308 FA  1093/2012                               4                                         Judgment



5]              Being   aggrieved   thereby,   respondent   approached   the

Reference Court under section 18 of the Act, contending inter alia

that when the offer was received from the Collector himself and that

too accepting the rate of Rs.4,640/- per sq.mtr., the SLAO should

not have reduced the said amount and granted paltry sum at the

rate of Rs.260/- per sq.mtr. It was also contended that the SLAO

has not taken into consideration the market value of the land in the

vicinity despite the relevant material placed before him. According

to respondent, the award was passed by the SLAO merely on

surmises and without application of the mind, and therefore

interference was warranted in the said award by enhancing the

compensation at the rate of Rs.4,640/- per sq.mtr., which rate was

accepted by the Collector, Akola also.

6] This petition came to be resisted by the appellant vide

its written statement at Exh.16 submitting that correspondence

between respondent and the Collector was a matter of record, hence

needs no reply. It was submitted that the market value of the

acquired land as per the prevailing market rates in the area can be

Rs.4,640/- per sq.mtr. It was denied that the land was having

0308 FA 1093/2012 5 Judgment

potential for residential purpose or it was situated in residential and

commercial locality of rich class of persons. It was also denied that

the Collector, Akola has accepted the market value of the land at

the relevant time at the rate of Rs.4,640/- per sq.mtr.. It was

submitted that the SLAO has considered all the relevant factors,

including the six sale instances of the land executed within the

period of 5 years prior to the Notification issued under section 4 of

the Act. He has also considered the potentiality and situation of the

land and thereafter arrived at the proper conclusion in respect of

the price of the acquired land and has awarded the just and

reasonable amount of compensation. Therefore, no interference was

warranted therein.

7] On these respective pleadings of the parties, the

Reference Court was pleased to frame the necessary issues for its

consideration. In support of his case, respondent examined himself

and proved on record the various correspondence exchanged

between the respondent and the Collector, Akola, accepting the

purchase price at the rate of Rs.4,640/- per sq.mtr. He was cross-

examined on behalf of the appellant, but appellant chose not to lead

0308 FA 1093/2012 6 Judgment

any oral or documentary evidence on record.

8] Hence, on appreciation of the entire evidence produced

before it, the Reference Court was pleased to hold that if the

Collector, Akola has offered the market price at the rate of

Rs.4,640/- per sq.mtr. to the acquired piece of land, then that being

the price of ready reckoner and that being the offer from the

Acquiring Body , the compensation needs to be awarded at the same

rate. Accordingly, the Reference Court has enhanced the amount of

compensation to Rs.4,640/- per sq.mtr. and further allowed the

solatium of 30% with interest of 15 % per annum.

9] This judgment of the reference court is challenged in

the present appeal by learned AGP by submitting that the rate of

Rs.4,640/- per sq.mtr. was offered by the Collector, Akola, only as a

purchase price and it cannot be the rate on which the compensation

can be awarded, especially when the amount of compensation is

awarded with 30% solatium and 15% per annum of interest

thereon. It is urged that if this rate of Rs.4,640/- per sq.mtr. was

0308 FA 1093/2012 7 Judgment

offered by the Collector, Akola on the basis of the ready reckoner,

then the law is fairly well settled that the rates in ready reckoner

cannot be the only foundation for fixing the amount of

compensation. Hence, according to learned AGP for appellant, the

very foundation of the judgment of the Reference Court being not

correct, interference is warranted in the impugned judgment and

award of the Reference Court, especially having regard to the fact

that the amount of compensation is enhanced multi-fold, as a result

of further award of 30% solatium and 15% per annum interest,

which could never have been the intended price of the acquired

land by the Collector, Akola himself.

10] Per contra, learned counsel for the respondent-claimant

has supported the impugned judgment by submitting that the rate

of Rs.4,640/- per sq.mtr. was offered by the Collector, Akola himself

on the basis of the proposal submitted to him by the Acquiring Body

i.e. P.W.D. Akola. Now the State Government cannot resile from the

said proposal. Moreover, though the respondent had given the

consent for the acquisition of the land at that rate and also handed

over the possession of the said land, it was not proper on the part of

0308 FA 1093/2012 8 Judgment

the appellant to initiate the acquisition proceedings. It is submitted

that once the appellant has initiated the acquisition proceeding

under Land Acquisition Act, 1894, then 30% solatium and 12% per

annum interest, which are statutorily provided under the Act,

respondent becomes entitled to get the same. Hence, according to

him, no interference is warranted in the impugned judgment and

award of the Reference Court.

11] On these rival submissions advanced before me by

learned AGP and learned counsel for respondent, the only point

which arises for my determination, is whether the Reference Court

was justified in enhancing the amount of compensation to

Rs.4,640/- per sq.mtr., mainly on the count that the Collector has

offered to purchase the acquired land at that rate?

12] The factual aspects of this case are not in the realm of

dispute and otherwise also they are sufficiently proved on record

through the documentary evidence. Even in the written statement

filed by the appellant to the Reference Petition, appellant has

0308 FA 1093/2012 9 Judgment

submitted that the correspondence exchanged between the

Collector, Akola and the respondent is a matter of record and hence

no reply was necessary to challenge the same. Thus it is a matter of

record that the Collector, Akola has by his letter dated 11/12/1996

(A-1) sought the consent of the respondent for selling the acquired

land for the purpose of construction of bridge over Morna river. The

no objection and consent letter for the same was sought from the

respondent on or before 18/12/1996. There is a letter issued by

respondent accordingly on 17/12/1996, which is marked as A2,

wherein it was stated that the rate of Rs.2,320/- per sq.mtr. which

was proposed by the Collector, Akola for purchase of the land was

not proper and it was not accepted by the respondent. However, it

was submitted that the rate of Rs.4,640/- per sq.mtr., which was

given to the land at Ward No.30/2, Sr. No.4 to Sawatram, would be

acceptable to respondent and they were waiting for the appropriate

response from the Collector. The relevant extract of ready reckoner

rates of Nagar Parishad, Akola was also enclosed with the said

letter.

13]             In response to this letter, the Collector, Akola has sent a




 0308 FA  1093/2012                              10                                         Judgment

reply dated 01/01/1997 marked as (A4), wherein it was

categorically stated that on the basis of the proposal submitted by

the Executive Engineer, P.W.D. Akola, it was decided to acquire the

area of 3015 sq.mtr. and the market price of the said area as per the

Government ready reckoner rate, will be at the rate of Rs.4,640/-

per sq.mtr. It was further stated that the Collector was accordingly

ready to purchase the plot of the respondent, after obtaining no

objection and consent letter from the respondent on or before

04/01/1997. The letter dated 04/01/1997 issued by the respondent

vide (A5) goes to show that they had sent this proposal of the

Collector to their Head Office immediately and informed that on the

receipt of the approval from the Head Office, it would be informed

to the Collector.

14] It is a matter of record that in pursuance of this

negotiation relating to purchase price, the possession of the said

plot was handed over by the respondent to the Collector in March

1997. Despite that, the Notification under section 4(1) of the Act

came to be issued on 26/06/1997. Hence, on 31/07/1997 vide

letter (A6), the respondent brought all these facts to the notice of

0308 FA 1093/2012 11 Judgment

the SLAO, further in forming that after obtaining sanction from

their Head Office, they will be proceeding with the sale of the plot.

Thereafter again another letter dated 09/10/1997 was sent (A7) by

Respondent to the SLAO, again bringing all these facts to his notice,

enclosing therewith the correspondence exchanged and further

submitting that they are ready to the suggested rate offered by the

Collector of Rs.4,640/- per sq.mtr..

15] It appears that, thereafter also, SLAO proceeded with

acquisition proceedings and passed the award granting

compensation at the rate of Rs.260 per sq.mtr..

16] In the backdrop of these admitted facts, one has to

appreciate the submission advanced by learned AGP. According to

learned AGP, the law is fairly well settled, as laid down in the

landmark decision of the Hon'ble Apex Court in the case of Jawajee

Nagnatham -Vs- Revenue Divisional Officer, Adilabad, A.P. and

others, (1994) 4 Supreme Court Cases 595, categorically holding

that, "Basic Valuation Register had no evidentiary value and it had no

0308 FA 1093/2012 12 Judgment

statutory base, therefore the entries in the Basic Valuation Register

cannot form the basis to enhance the market value". It was held that,

"Such Basic Valuation Register cannot be the evidence to determine

the market value and therefore in determining the market value, the

court has to take into account one of the 3 recognized methods to

determine the market value and those three methods are (i) opinion

of the experts; (ii) the price paid within a reasonable time in bona

fide transactions of purchase of the lands acquired or the lands

adjacent to the lands acquired and possessing similar advantages;

and (iii) a number of years purchase of the actual or immediately

prospective profits of the lands acquired".

17] Learned AGP has further relied upon the judgment of

the Apex Court in the case of U.P. Jal Nigam, Lucknow -Vs- Kalra

Properties (P) Ltd. Lucknow and others, (1996) 3 Supreme Court

Cases 124 and also the judgment of the Hon'ble Apex Court in the

case of Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun

-Vs- Bipin Kumar and another, (2004) 2 SCC 283 and DDA and

others -Vs- Joginder S. Monga and others, (2004) 2 Supreme

Court Cases 297, wherein the law laid down in the abovesaid

0308 FA 1093/2012 13 Judgment

decision of the Jawajee Nagnatham was approved and further

confirmed by the Hon'ble Supreme Court and it was held that, "The

instructions issued by the Government for determination of market

value on the basis of Basic Valuation Register were illegal".

18] Thus, submission of learned AGP is that as the rate

quoted by the Collector, Akola was on the basis of the Basic

Valuation Register and if that rate is not approved by the Hon'ble

Apex Court to form the basis for determining the market value of

the acquired land, then the Reference Court has committed an error

in accepting the said rate without adhering to any of the three

methods for determination of the market value of the acquired land.

It is submitted by learned AGP that except the correspondence

exchanged between the Collector and the respondent, no other

evidence was adduced by the respondent to prove the actual market

price of the land, like, the relevant sale instances or evidence to

prove their income from acquired land to determine the market

value on the basis of capitalization method. Hence, according to

him, the judgment of the reference court accepting the market value

which was offered by the Collector on the basis of the Basic

0308 FA 1093/2012 14 Judgment

Valuation Register, needs to be set aside.

19] Per contra, learned counsel for the respondent has

relied upon the judgment of this court in the case of Fulchand

Biharilal Rawat -Vs- State of Maharashtra and another, 2008

(3) ALL MR 734, wherein on the basis of identical facts, it was held

that, "the Acquiring Body cannot resile from the proposal made

earlier and the negotiation price which was arrived at". In the facts

of the said case also, it was the Acquiring Body which has sent the

proposal for acquisition of land and on negotiation, the price was

set at Rs.50,000/- per acre. The Government was also moved for

making budgetary provision for that. Subsequently however, the

Notification u/s.4(1) of the Act was issued and the proceedings for

acquisition were initiated under the Act. The LAO after holding

inquiry, passed an award and granted compensation at the rate of

Rs.30,000/- per hector. The land owner, being aggrieved by the said

award sought a reference. The Reference Court after recording the

evidence of the land owner granted compensation at the rate of

Rs.50,000/- per Acre which was the agreed rate after negotiation.

When the matter reached to this court, similar arguments were

0308 FA 1093/2012 15 Judgment

advanced to submit that as the relevant methods for determination

of the market price were not followed by the Reference Court and

merely on the basis of the offer made by the Collector, the

compensation was determined at the rate of Rs.50,000/- per Acre,

the said compensation being not determined properly, needs to be

reduced.

20] However, this argument was rejected by this court,

holding that if the Collector had issued the certificate about the

price of the land being Rs.50,000/- per Acre and had also

negotiated the sale price with the owner and sent a proposal to

Government to acquire the land at the rate of Rs.50,000/- per Acre

and the Government has accepted the proposal and even sanctioned

the amount and made the financial provision, then the Acquiring

Body cannot resile from this position, consequently the Government

cannot also resile from it. Accordingly it was held that the Reference

Court has considered the evidence properly and awarded the

compensation at the rate of Rs.50,000/- per Acre with the solatium

and interest.

 0308 FA  1093/2012                              16                                         Judgment



21]             According   to   learned   AGP,   however,   in   this   reported

case, there was evidence led by the claimant, of two witnesses

showing that his land was in residential zone and has a potentiality

of conversion and therefore on the basis of that evidence, it was

held that the market price of the said acquired land would come to

Rs.54,000/- per Acre and it was held that the price offered by the

Acquiring Body at the rate of Rs.50,000/- per Acre being below it,

the compensation awarded at the said rate was proper. Moreover, it

is submitted that in the said case, the proposal for acquisition of

land at the rate negotiated was already sent to the Government and

it was accepted by the Government. Not only that, financial

provision was also made by sanctioning the amount. In this case, it

is submitted that no such proposal was sent by the Collector to the

Government and there was no financial provision made for it.

22] In my considered opinion, however this submission

cannot be accepted as admittedly in this case, the proposal was

initiated by the Collector, at the instance of the Acquiring Body.

After the negotiation, the Collector has accepted to the rate of

Rs.4,640/- per sq.mtr. and on that acceptance respondent has also

0308 FA 1093/2012 17 Judgment

acted and sought approval and sanction from its Head Office. Not

only that, respondent had also handed over the possession of the

land to the appellant, even before the issuance of Notification under

section 4 of the Act. In such situation, now the appellant cannot

resile from its proposal.

23] Moreover, in the instant case, the evidence of the

respondent about the potentiality of the acquired portion of the

land is not at all seriously challenged. His evidence goes to show

that the acquired plot is situated in the heart of the city of Akola

and this plot is having potential value for residential purpose. His

evidence further proves that the area where his plot is situated is a

busy residential and commercial locality and the rich class of

persons reside in the vicinity of the plot in question and therefore

respondent has claimed the enhancement of compensation at the

rate of Rs.4,640/- per sq.mtr.. There is absolutely no searching

cross-examination of the respondent on this aspect. The suggestion

put to him that the said plot is under the flood affected zone and

therefore the price as per the ready reckoner was not applicable to

the said plot is denied by him. Surprisingly the suggestion is put to

0308 FA 1093/2012 18 Judgment

him in cross-examination that at the time of acquisition, the rate of

plot situate adjacent to Tilak Road and touching Tilak Road was

Rs.4,640/- as per the ready reckoner.

24] Thus, the evidence of Respondent about the

potentiality, location and situation of the acquired plot has

remained unchallenged on record. As a matter of fact, at the

relevant time, the market price of the said plot really appears to be

high and hence in the Basic Valuation Register its rate was

Rs.4,640/- per sq.mtr.. That appears to be the reason why the

Collector, Akola has accepted the said price, after negotiation.

Otherwise he would not have done so. Moreover, if it was not

acceptable, then the Collector would not have taken over possession

of the plot before initiating acquisition proceedings.

25] It is also pertinent to note that, if according to

appellant, the market price of the acquired plot can be only as

decided by the SLAO, at the rate of Rs.260/- per sq.mtr., then some

evidence should have been adduced by the appellant to that effect.

0308 FA 1093/2012 19 Judgment

At least the SLAO, who has determined the said price, should been

examined to prove the sale instances on which he has relied in his

award. For that matter, those sale instances also could have been

produced by the appellant by examining the witnesses. Not a single

witness is examined by Appellant to show that market price of the

plot at the relevant time cannot be Rs.4,640/- per sq.mtr. In such

situation, and in the absence of any contra evidence produced by

the appellant, I do not find that Reference Court has committed any

error, particularly in the facts and circumstances of the present case,

to assess the compensation at the rate of Rs.4,640/- per sq.mtr.

which was also, the rate as per the proposal accepted by the

Collector himself.

26] As regards the grievance raised by learned AGP that

now the respondent is held entitled not only to the purchase price at

the rate of Rs.4,640/- per sq. mtr. but also to other statutory

benefits like 30% solatium, 15% per annum interest and 12%

additional component and hence amount of compensation payable

to Respondent becomes exorbitant. In my considered opinion, this

submission is devoid of merits as the Appellant proceeded for

0308 FA 1093/2012 20 Judgment

acquisition of the land under the Act even after the negotiations

relating to fixing of purchase price were completed and accordingly

possession was also delivered by the Respondent. Hence, all the

provisions of the Act relating to solatium and interest become

applicable. Therefore, the grievance raised on that point also cannot

be accepted.

27] The net result, therefore, is that, appeal holds no

merits, hence stands dismissed.

28] At this stage, learned counsel for respondent seeks

permission to withdraw the amount of compensation which is

deposited in the court.

29] Learned AGP, however seeks time of 12 weeks in order

to enable him to approach the Hon'ble Supreme Court against the

judgment of this court.

30] Learned counsel for respondent opposes the grant of

stay to the operation of this judgment and order.

 0308 FA  1093/2012                              21                                         Judgment




31]             However,   considering   the   legal   issue   involved   in   this

appeal, it is always desirable to give some opportunity to the the

appellant herein, to take necessary recourse to the higher forum.

Therefore, stay is granted to the execution of this judgment and

award for a period of 12 weeks.

JUDGE

Yenurkar