Bombay High Court

The State Of Maharashtra vs Shri Sudam G. Dangat on 21 December, 2017

Bench: Mridula Bhatkar

Trupti 902-fa-413-420-93 group matters.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO.413 OF 1993

The State of Maharashtra
Through the Special Land Acquisition
Officer No. 17, Pune ...Appellant

Versus

Sudam Gangaram Dangat ...Respondent

WITH
FIRST APPEAL NO. 414 OF 1993

The State of Maharashtra
Through the Special Land Acquisition
Officer No. 17, Pune ...Appellant

Versus

Pandharinath Yashwant Dangat & Ors. ...Respondents

WITH
FIRST APPEAL NO. 416 OF 1993

The State of Maharashtra
Through the Special Land Acquisition
Officer No.17, Pune. ...Appellant

Versus

Shri.Babasaheb Y. Dangat ...Respondent

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WITH
FIRST APPEAL NO. 417 OF 1993

The State of Maharashtra
Through the Special Land Acquisition
Officer No. 17, Pune ...Appellant

Versus

Pandharinath Yashwant Dangat ...Respondent

WITH
FIRST APPEAL NO. 418 OF 1993

The State of Maharashtra
Through the Special Land Acquisition
Officer No. 17, Pune ...Appellant

Versus

Sudam Gangaram Dangat & Ors. ...Respondents

WITH
FIRST APPEAL NO. 420 OF 1993

The State of Maharashtra
Through the Special Land Acquisition
Officer No. 17, Pune ...Appellant

Versus

Pandharinath Balasaheb Dangat & Ors. ...Respondents

......
Mr. A.R.Patil, AGP for the Appellant/State in all the First Appeals.
Mr. Kaustubh Thipsay for the Respondents.
......

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CORAM: MRS.MRIDULA BHATKAR, J.

DATE : 21ST DECEMBER, 2017.

ORAL JUDGMENT:

1. These First Appeals are taken together, as in all these appeals,

the judgment and order dated 30 th June, 1992 passed by the learned

Extra Joint District Judge, Pune in Land Reference Nos.110 of 1987,

107 of 1987, 109 of 1987, 111 of 1987, 112 of 1987 and 114 of 1987

respectively are under challenge. However, all the lands in these

Appeals are situated at village Vadgaon Budruk, Taluka Haveli,

District Pune and they were acquired for the purpose of Bombay

Pune National Highway No. 4. The notification dated 27 th December,

1982 issued under Section 4 of the Land Acquisition Act (hereinafter

referred to as "the said Act") by the Special Land Acquisition Officer

No. 17, Pune was published on 17 th February, 1983. The notification

under Section 6 of the said Act was issued on 7 th January, 1986 and

the Award under Section 11 of the said Act was passed on 18 th June,

1986 by the Special Land Acquisition Officer No. 17, Pune. The

Special Land Acquisition Officer had classified the lands as Jirayat

and Bagayat and fixed the amount of compensation of Rs. 460/- per

acre and Rs. 540/- per acre respectively. Being aggrieved by the

said Award, the original claimants approached the District Collector

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and thereafter, land references were filed before the District Court,

Pune for enhancement of the amount of compensation. These land

references were made under Section 18 of the said Act. The

original claimants have asked for fixing the rate of compensation upto

Rs. 5000/- per Acre mainly on the ground that the lands are fertile

and having all potentiality of development. The amount of

compensation awarded by the Reference Court is too meager

compared to market value and is to be increased. The

Appellant/State had filed Written Statement in land references and

denied the claim of the original claimants. It was contended that the

amount of compensation was adequate and proper and the claim of

the claimants is very excessive. The ground of limitation was also

raised. The Reference Court framed the point of determination.

The original claimants have tendered evidence of four witnesses.

The Appellant/State did not lead evidence before the Reference

Court. After considering the oral as well as documentary evidence,

the learned Judge of the Reference Court partly allowed the claim of

the claimants and enhanced the amount of compensation to

Rs.1,000/- per acre for Bagayat land and Rs. 800/- per acre for

Jirayat land.

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2. Being aggrieved by the said Judgment and Award, the

Appellant/State has filed these Appeals. In the said Appeals, the

original claimants have filed Cross Objections and demanded

enhancement of the amount of compensation. On the point of

determination, only two factors are to be considered -

1. Whether the Appellant / State proves that the rates fixed

by the Reference Court are excessive and are to be

reduced?

2. Whether the original claimants are entitled to increase the

rates of compensation, which are fixed by the Reference

Court?

3. Learned AGP for the Appellate/State while arguing these

Appeals, has submitted that the Reference Court has erred in fixing

the amount at a higher rate than the amount of compensation fixed

by the Special Land Acquisition Officer. He has further submitted that

the claimants have not tendered sufficient evidence to support the

findings of the Reference Court of increasing the amount of

compensation. The Reference Court should have properly

considered that the lands under acquisition do not have a very good

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non-agricultural potential and the claimants did not produce any

documentary evidence to support their pleadings for enhancement.

He has further submitted that the certified copies of three sale

instances, which are now produced before the Court, are not sale

instances which can be accepted as they are, for fixing the amount of

compensation in these Appeals. He has further submitted that from

the sale instances, it is not clear whether the lands under the sale

deeds are of Jirayat or Bagayat lands. He has argued that mere

pleadings of potentiality of non-agricultural lands are not sufficient.

The claimants have failed to tender necessary evidence specifying

what type of potentiality the lands have, so that enhancing the

amount of compensation can be justified.

4. Per contra, learned counsel for the respondents has fully relied

on the certified copies of three sale instances. He has submitted that

by virtue of Section 51 (A) of the said Act, the certified copies of the

sale instances are to be submitted. All the lands of the sale

instances took place in the year 1982. One was prior to the

notification issued under Section 4 of the said Act. He has argued

that all sale instances are of 8 th October, 1982. In second sale

instance, the land of 22 R was purchased for Rs. 3,500/- per acre

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and in third sale instance, the amount of 17R land was fixed for

Rs.4,500/- per acre. He has further submitted that all these lands are

also from same village i.e. Vadgaon Budruk and, therefore, the

market value is to be given to the claimants. He has also relied on

the evidence tendered by the claimants before the Reference Court

and pointed out that the witnesses have deposed about the

potentiality of non-agricultural land. He has further relied on the

judgments of Hon'ble Supreme Court in the case of Digambar and

others versus State of Maharashtra and Others 1 and in the case

of Atma Singh (Dead) Through LRS. And others Versus State of

Haryana and Anr.2 He has further submitted that the amount of

compensation is to be increased/enhanced from Rs.1,000/- per acre

to Rs.4,000/- per acre.

5. At the outset, it is necessary to mention that the learned Judge

of the Reference Court has increased the rate of compensation in

respect of Bagayat land and Jirayat land, mainly on the basis of

potentiality and profitability of the agricultural output. No certified

copy of sale instance of the adjacent land was produced in evidence.

However, the mutation entries in the revenue record were produced.

(2013) 14 SCC 406

(2008) 2 SCC 568

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In view of the ratio laid down in the case of State of Punjab vs.

Pohu & anr.3, mutation entries are not admissible to prove terms and

conditions of sale and mutation is neither primary nor secondary

evidence of the terms or conditions of sale or a contract. The

claimants in their reference claims have demanded compensation of

the land to be fixed @ Rs.4,000/- to Rs.5,000/- per guntha.

Accordingly, they led oral evidence to support their claim. At the time

of hearing of the submissions of the learned Counsel for both the

parties, it was found necessary to get the certified copies of the sale

instances on record and therefore, the applications filed by the

original claimants in their respective Cross Objections seeking

permission to lead additional evidence under Order 1 Rule 27 of the

Civil Procedure Code were allowed. The applications were allowed

mainly by invoking the power under Order 41 Rule 27B of the Code.

6. Accordingly, the three sale instances of adjacent lands dated

8.10.1982 disclosing the market value of Rs.3,500/- per are and

Rs.4,500/- per are were produced. Though the certified copies of the

sale instances were not produced before the Reference Court and

therefore, the Reference Court could not rely on those sale

AIR 1986 Punjab & Haryana 143 (FB) 143

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instances, this being a First Appeal, considered as a continuation of

the suit. The certified copies are considered as admissible evidence

before this Court under section 51A of the Land Acquisition Act,

allows the admission of certified copies as evidence of transaction

recorded in such document. The learned Counsel for the

respondent/original claimants has rightly pointed out that the section

51A was inserted in the Act w.e.f. 24.9.1984 and in the present case,

award was passed in 1986 and so, the section is applicable in the

present proceedings and therefore, the original certified copies of the

sale instance of 1982 are relied upon.

7. Perused the evidence of the original claimants. All the

claimants tendered and relied on the common evidence. The

evidence of 4 witnesses, namely, Sudam Gangaram Dhangat;

Pandharinath Yashwant Dhangat; Shantaram Sadashiv Wanjale and

Vitthal Sopana Dhangat were seen. They all have stated that the

lands were acquired in 1983. All acquired lands are Bagayat lands

with well. The distance of the land is 4 kms away from Pune

Municipal Corporation. The witnesses have deposed that the lands

are accessible by two roads. The residential houses are built near

the acquired land. The electricity and water pipelines are provided in

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the land. They have also stated that they used to get Rs.800/- profit

out of the sale of tamarind and Rs.600/- to Rs.700/- profit from each

mango tree. They also stated that the mango trees were more than

10 years old. The Reference Court has accepted that some lands

were Bagayat and some were Jirayat and, therefore, increased the

amount of compensation from Rs.600/- to Rs.800/- for Jirayat and

Rs.1,000/- for Bagayat.

8. The trial Court has assessed the evidence of each witnesses at

length. However, at that time, the trial Court was not having the

benefit of referring to the sale deeds for comparison. The sale

instances which are produced here disclose that the said lands are

from village Vadgaon Budruk and in the year 1982 had fetched the

consideration @ Rs.3,500/- to Rs.4,500/- per are. The area of the

lands in the sale instance is 17 ares to 22 ares. However, the lands

which are the subject matters in these appeals are of different areas.

In two appeals like Appeal Nos.413 and 414 of 1993, the lands are

more than 1 hectare and the lands in other 4 appeals are less than 1

hectare. In appeal No.416 of 1993, the area of the acquired land is

smallest i.e., 5 ares. Thus, for fixing the compensation, the area of

the land is a relevant factor and it is a settled position of land that

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bigger the area acquired, lesser the rate of compensation, as there

are always more substantial deductions for the purpose of

development of a bigger land. Hence, I am inclined to award

Rs.1,200/- per are for the lands, where the area is more than 1

hectare.

4. The main contention of the learned Counsel for the claimants

was that the lands acquired have greater N.A. potential for the

development and that is not taken into account by the Reference

Court. If the rate of compensation in the comparable sale instances

is considered, undoubtedly, the rate of compensation fixed by the

Reference Court appears to be on a lower side. However, the rate

fixed in the comparable sale instances cannot be adopted as it is, in

view of the objections raised by the learned Assistant Government

Pleader that these comparable sale instances were not available for

cross-examination before the Reference Court. The trial Court has

erroneously in last portion of para 21, has held that the claimants do

not say that the their lands have potentiality for non-agricltural use

and they have restricted their claim only in respect of their potentiality

for agricultural output. This observation of the learned Judge is not

correct in view of the evidence tendered by the witnesses. The

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Reference Court has also overlooked the pleadings in the application

and the evidence of Sudam Dhangat on the point of non-agricultural

potentials of the acquired land. The Reference Court ought to have

also taken into account that these lands were acquired for the

purpose of Pune-Mumbai National Highway 4. The said witness i.e.,

PW1 has stated that the lands were only 4 kms. away from the Pune

Municipal Corporation. The residential houses were near the lands

and they were connected with roads. This shows that though the

lands were very fertile lands, also carry the potentiality of

developments. In the main application, it was pleaded that because

of proximity of Pune Municipal Corporation, the Central Government

offices and the defence department offices were near the acquired

land. The Reference Court ought to have taken this evidence and

the pleadings into account.

5. In the case of Digamber and others vs. State of Maharashtra

(supra), the Supreme Court while explaining the term potentiality,

has referred to the case of Sabhia Mohd. Yusuf Abdul Hamid Mulla

vs. Land Acquisition Officer4 and has held thus:

(2000) 7 SCC 595

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16.4. Further, it would be worthwhile to refer to the portion which is extracted from Atma Singh Vs. State of Haryana which para is referred to at para 18 in Sabhia Mohammed Yusuf Abdul Hamid Mulla's case (supra) which reads thus: (Atma Singh case, SCC p.572 para 5):

"5. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, uses to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether nearabout town is developing or has prospect of development have to be taken into consideration."

6. The learned Counsel has also relied on Atma Singh through

his legal representatives and others vs. State of Haryana 5 on the

point of market value of the land.

7. In the case of Atma Singh through his legal representatives

and others vs. State of Haryana (supra), the Supreme Court has

referred to the case of Bhagwathula Samanna vs. Special

(2008) 2 SCC 568

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Tehsildar and Land Acquisition Officer 6, where it is held that if the

market value of a large property is fixed on the basis of sale

transaction of a smaller property, then, generally, the deduction is