M.I.D.C., Thr. Its Chief Officer vs Ram Raju Rathod Thr. Smt. Tarabai ...
2017 Latest Caselaw 4443 Bom

                                               1




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



First Appeal No.  490 of 2005



Appellant               :          Maharashtra Industrial Development

                                   Corporatin, having its head Office at 

                                   Mahakal Caves, Andheri (East), Mumbai

                                   and Regional Office at MIDC Area, Amravati,

                                   through its Chief Officer

                                   versus

Respondents             :          1)    Ram Saju Rathod, since eceased -

a) Smt Tarabai w/o Ram Rathod, aged

about 51 years, Occ: Household work and

Medical Practitioner

b) Rahul Ram Rathod, aged about 26

years, Occ: Education

c) Ku Ruchali d/o Ram Rathod, aged about

23 years, Occ: Education

d) Ku Snehal d/o Ram Rathod, aged about

20 years, Occ: Education

e) Ku Shilpa d/o Ram Rathod, aged about

17 years, Occ: Education

Occ: Education

All residents of Digras, Dist. Yavatmal

2) The State of Maharashtra

3) The Collector, Yavatmal

4)The Land Acquisition Officer and

Sub-Divisional Officer, Darwha,

District Yavatmal

Shri M. M. Agnihotri, Advocate for appellant

Shri S. U. Nemade, Advocate for respondents no. 1 (a) to (e)

Shri S. B. Bissa, Asst. Govt. Pleader for respondents no. 2 to 4

Coram : S. B. Shukre, J

Dated : 13th July 2017

Oral Judgment

1. This appeal challenges the legality and correctness of the

judgment and order dated 29.8.2003 passed by the Joint Civil Judge,

Senior Division, Pusad in Land Acquisition Case No. 34 of 1996.

2. 0.10 hectare of land from survey number 26 situated at

village Dhanora (Bk) belonging to respondents no. 1 (a) to 1 (e) was

acquired for public purposes under the provisions of the Maharashtra

Industrial Development Corporation Act (for short, the "MIDC Act").

Section 32 (2) MIDC Act notification was issued on 30.11.1989 and the

Award was passed by the Land Acquisition Officer on 13.11.1995. The

rate determined by the Land Acquisition Officer was of Rs. 5668/- per

acre or Rs. 14000/- per hectare and accordingly, for the acquired land,

compensation was determined. A reference application was moved by the

respondents as they felt that the compensation so awarded to them by the

Land acquisition Officer was inadequate. On merits of the case, the

Reference Court found, on the basis of a subsequent sale instance, the

rate determined by the Land Acquisition Officer was insufficient and

accordingly, the Reference Court enhanced it to Rs. 80,000/- per acre or

Rs. 1,97,600/- per hectare by the impugned judgment and order. The

appellant has questioned such an approach of the Reference Court in the

present appeal.

3. I have heard Shri M. M. Agnihotri, learned counsel for the

appellant; Shri S. U. Nemade, learned counsel for the claimants and Shri

S. B. Bissa, learned Assistant Government Pleader for respondents no. 2 to

4. I have gone through the record and proceedings.

4. The point that falls for my consideration is :-

Whether the compensation awarded by the Reference

Court for the acquired land is on higher side ?

5. Shri Agnihotri, learned counsel for the appellant submits that

a post-notification sale instance cannot be considered as a reference point

for determination of the market value of the acquired land. He has placed

his reliance on General Manager, Oil And Natural Gas Corporation

Limited v. Rameshbhai Jivanbhai Patel & anr reported in (2008) 14

SCC 745 and Bhupal Singh & ors v. State of Haryana reported in

(2015) 5 SCC 801.

6. Shri Nemade, learned counsel for the claimants submits that

there is no complete bar for relying upon the post-notification sale

instance and if there is no other material available on record, use of such

sale instance can be made by adopting cautious approach. Shri Bissa,

learned Assistant Government Pleader submits that the law laid down by

the Hon'ble Apex Court is a matter of record.

7. In the case of Rameshbhai (supra), the Hon'ble Apex Court

has held that ordinarily the post-notification sale instance should not be

used as a reference point and when it becomes inevitable for the Court to

make use of such sale instance, the Court should be extremely cautious in

doing so and determine market value of the acquired land. Subsequently,

in the case of Bhupal Singh (supra), the Apex Court observed that such a

practice should be altogether given up as it is not at all provided in the

MIDC Act. The relevant observations of the Hon'ble Supreme Court

appearing in paragraph 27 are reproduced below :

"27. As rightly argued by the learned counsel for the

respondent, the fair market value of the acquired land is

required to be determined under Section 23 of the Act on

the basis of the market rate of the adjacent lands similarly

situated to the acquired lands prevailing on the date of

acquisition or/and prior to acquisition but not subsequent

to the date of acquisition. In appropriate cases, addition of

10% per annum escalation in the prices specified in the

sale deeds (if filed and relied on) in relation to adjacent

similarly situated lands for fixing the market value of the

acquired land may be permitted. Such is, however, not the

case in hand. Here is the case where firstly, no sale deeds

were filed by the appellants to prove the fair market value

of the acquired land and secondly, what they now want

this Court to do is to take into consideration the rate of

those lands which were acquired ten years after the date of

acquisition in question and then reduce the value of such

land by 10% every year so as to determine the fair market

value of the acquired land in question. In our view, such

procedure for determination is not provided in the Act."

8. It is clear from the law so laid down by the Hon'ble Apex

Court that it would not be permissible for the Court to consider post-

notification sale instances so as to determine the market value of the

acquired land previously. In the instant case, the method adopted by the

Reference Court is contrary to the law settled by the Hon'ble Supreme

Court and it will have to be said that the determination of the market

value made by the Reference Court to be at Rs. 80,000/- per acre is illegal

and it deserves to be quashed and set aside.

9. Now, the question would be, how the correct market value of

the acquired land could be arrived at and the answer to the question,

seems difficult to come by, given the gross and vague nature of the

evidence tendered by the claimants and it would have to be found out

mostly by resorting to guesswork based on reasonable estimation.

10. In the instant case, there is no dispute about the fact that the

acquired land was converted into non-agricultural use with the permission

for the same having been granted about three years prior to Section 32

(2) Notification. This would show that the acquired land had the non-

agriculture potential and some value addition for such non-agriculture

potential would be needed. The Award passed by the Land Acquisition

Officer, however, does not take into consideration the non-agriculture

potential of the acquired land. Then, it would fall upon this Court to

undertake this exercise and doing so, I find that it would be just and

proper to say that for the non-agriculture potential of the acquired land,

to the value determined by the Land Acquisition Officer an equal value

would have to be added. The value or the rate determined by the Land

Acquisition Officer was of Rs. 5668/- per acre and by adding the equal

value to this rate on account of non-agriculture potential, the prevalent

market value of the acquired land would come to Rs. 11,336/- per acre at

the relevant time. In my view, this value of the acquired land could be

said to be the one which the acquired land could have fetched at its best

at the relevant time in the open market. Therefore, I find that the

claimants would be entitled to receive compensation for the acquired land

@ Rs. 11,336/- per acre. The claimants will also be entitled to receive

same rate of interest and benefits on this value as given in the impugned

Award.

10. At this juncture, learned counsel for the claimants has invited

my attention to the market value determined by this Court in a bunch of

First Appeals decided on different dates. These are, FA No. 477 of 1995

with FA No. 153 of 1997; FA No. 437 of 1995 with FA No. 600 of 1995;

FA No. 603 of 2003 with FA No. 221 of 2007 and FA No. 89 of 1995

decided respectively on 13.7.2012, 18th June 2012, 22nd September 2015

and 3rd April 2009. In these appeals, market values of the different lands

have been determined to be @ Rs. 3,75,000/- per hectare and Rs. 3.50

per square foot. All these lands are from village Lakh, Mahagaon and

Ukhali. Sofar as the market values determined by this Court in all those

cases are concerned, there cannot be any dispute about the same. But the

difficulty is about adoption of those market values in the instant case. If

those market values are to be followed for determination of the market

value of the land acquired in the present case, there has to be present on

record some material which would go to show that the land acquired in

the instant case is quite similar to the land acquired in those First Appeals.

Unfortunately, there is absolutely no clue provided in this regard by the

claimants when they tendered evidence before the Reference Court. They

have not even made any reference to the lands situated at such villages as

Lakh, Mahagaon and Ukhali. Therefore, the judgments referred to above

will be of no use to the claimants in the present case.

11. Before parting with this judgment, I deem it necessary to

address the argument of learned counsel for the claimants regarding need

for remanding this matter back to the Reference Court. He submits that a

just and fair opportunity should be given to the claimants to bring on

record relevant material to enable the Reference Court to determine the

prevalent market value of the acquired land. However, I must say that

the ground and prayer relating to remand of the matter has been given up

by the appellants and that they have not raised any sort of challenge to

the judgment and order impugned herein on account of improper

determination of the market value based on reasonable estimation by the

claimants. Therefore, such a submission cannot be accepted and it stands

rejected.

12. Appeal is partly allowed and the impugned judgment and

order stand modified in terms of observations made in paragraph 9

hereinabove. Claimants who have already withdrawn the entire amount

deposited in this Court by the appellant, shall deposit the amount which

has been withdrawn by them in excess following the final order passed in

this appeal, within a period of six months from the date of this order,

failing which the appellant may recover the excess amount from them by

adopting due process of law.

S. B. SHUKRE, J

joshi