Shri. Sat Dev Prakash vs The Special Land Acq. Officer
2017 Latest Caselaw 4465 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION


                           FIRST APPEAL NO. 568 OF 1989


           Shri Sat Dev Prakash of Bombay
           Indian Inhabitant residing at 
           R/o 'Amrita', Napean Road,
           Bombay 400 006
           (Since deceased, through LRs)

 1.        Ravi Prakash, Indian Inhabitant
           residing at "Amrita", Flat No.10,
           L.D. Ruparel Marg, 
           Mumbai - 400 006.

 2.        Mrs. Manjula Bhatia, Indian 
           Inhabitant, residing at "Amrita",
           Flat No.9, L.D. Ruparel Marg,
           Mumbai - 400 006.                                       ... Appellants

                   Vs.

           The Special Land Acquisition Officer,
           Metro Centre No.2, 3rd Floor,
           Panvel Taluka, Panvel,
           District Raigad.                                        ... Respondent

                                         ......
 None for the Appellants.
 None for the Respondent.
                                         ......


                                CORAM  :          B. R. GAVAI AND
                                                  RIYAZ I. CHAGLA, JJ.

                                DATE      :       JULY 13, 2017.





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 ORAL JUDGMENT (PER B. R. GAVAI, J.) :

1. The matter was called out initially at 12.00 noon. Since none

appeared either for the appellants or for the respondent, the

matter was kept back by us. It was again called out at 1.20 p.m.

and on the second call also none appeared for the appellants, so

also for the respondent. The Appeal is of the year 1989, and

therefore, we have scrutinized the record and are deciding the

Appeal on the basis of the record available with us.

2. The factual background out of which the present Appeal

arises, is as under:

3. The appellant had entered into an agreement dated 31 st

March 1965 for purchase of land bearing plot Nos. 6 and 7 (Survey

No. 437) admeasuring 54,650 sq. meters, situated in village

Morapalli (Ambetarkhar) of Panvel Tahsil in Raigad District

(hereinafter referred to as, "the said land"). The appellant agreed

to purchase the said land for a price of Rs.4,500/- per acre. The

land in question was agricultural land at the relevant time.

However, in the agreement, there was a stipulation that the land

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would be converted into non-agricultural land before the deed of

conveyance of the said land is executed in favour of the appellant.

On 17th March, 1966, the order of granting N.A. permission was

passed. As such, on 17th September, 1966, the deed of conveyance

came to be executed in favour of appellant. It is the case of the

appellant that, thereafter, he had started obtaining permissions

from various Government departments for starting a

manufacturing industry comprising of a ball-bearing unit. On 1 st

February, 1970, a notification under Section 4 of the Land

Acquisition Act, 1894 (hereinafter referred to as, "the said Act")

came to be issued by the State Government. In the month of April

1970, the N.A. Permission, which was granted earlier, came to be

cancelled in view of the notification issued under Section 4 of the

said Act. On 24th September, 1972, a notification as required under

Section 6 of the said Act came to be issued. However, it appears

that there was some litigation between the appellant and the State

and the matter went up to the Hon'ble Apex Court. In view of the

order dated 3rd February, 1984 passed in Special Leave Petition No.

7688 of 1982, the 1st July, 1977 was directed to be considered as

the relevant date for valuation of the land for determination of

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compensation. The respondent-Special Land Acquisition Officer

had initially, on 3rd February, 1970, determined the market value of

the land at the rate of Rs.4.80/- per sq. meter. However, after the

order was passed in the Special Leave Petition by the Hon'ble Apex

Court, the Land Acquisition Officer determined the compensation

at the rate of Rs.10/- per sq. meter considering the date 1 st July,

1977 as the relevant date. Being aggrieved by the award passed by

the Special Land Acquisition Officer, the appellant approached the

Reference Court by way of Land Acquisition Reference No. 172 of

1986. The learned Reference Judge has allowed the Reference and

determined the market rate to be Rs.90/- per sq. meter as on 1 st

July, 1977 and determined the compensation accordingly. The

operative part of the award dated 11th October, 1988 passed by the

learned Reference Judge reads thus:

"The opponent do pay to the claimant compensation as on 1-7-1977 as under:-

           A)   Market value of the land                        Rs.9,18,580-00
                (Area Rate pers. M.)
                54650 sq. Ms. X 90/-


                Barbed wire fencing.                            Rs.  40,000-00
                                                                ----------------------
                                                                Rs.49,50,500-00





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B) Interest on the amount payable at the rate 12% under Sec.23(1A) of the l.a. act shall accrue in the succeeding year and at the end of every year thereafter till payment as and when the said 12% amount falls due under the said provision;

C) Solatium U/s 23(2) at 30% on the market value as (A) ABOVE.

D) Damages U/s 23(1) of L.A. Act viz:-

i) damages in lieu of lease rent income Rs.10,000/-

ii) damages for expenses incurred Rs.10,000/-

E) Interest U/s 28 of the L.A. Act on the enhanced amount of compensation;

F) Proportionate costs of this reference. The amounts already granted by the Opponent be deducted at source under respective heads."

4. Being aggrieved by the award passed by the learned

Reference Judge, i.e. the District Judge, Raigad, the appellant has

approached this Court by way of present Appeal. On a perusal of

the material placed on record, it appears that the appellant assails

the findings of the learned Reference Judge on the following

grounds:

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           I.     That the market value of the land as on 1st  July, 1977 

ought to have been determined at the rate of Rs.200/- per sq. meter instead of Rs.90/- per sq. meter, as determined by the learned Reference Judge.

II. That the learned Reference Judge has failed to properly appreciate the transaction that took place between the City and Industrial Development Corporation (CIDCO) and the Food Corporation of India (FCI) for the purpose of ascertaining the market rate of the plot. The learned Reference Judge, having held that the said land has non- agricultural potential, failed to apply correct market rate of Rs.200/- per sq. meter.

III. That the land in question was in the vicinity of various industries and the industrial area and as such, a higher market value ought to have been determined.

IV. That the learned Reference Judge has failed to take into consideration the development carried out by the appellant on the land in question and has resultantly erred in not granting adequate compensation.

V. That the learned Reference Judge has failed to take into consideration that the witness of the respondent himself had admitted that there was 45% increase in the valuation of the land per year, and as such, it ought to

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have been held that the claim of the appellant for valuation at the rate of Rs.200/- per sq. meter was just and proper.

VI. That the learned Reference Judge has failed to appreciate the annual reports of the Maharashtra Industrial Development Corporation (MIDC) in its correct perspective.

VII. That the learned Reference Judge has failed to take into consideration that from 1970 to 1977, the rates of the land have increased 9 times.

VIII. That the learned Reference Judge has erred in granting compensation of Rs.40,000/- for barbed wire fencing against the claim of Rs.50,000/- as made by the appellant.

IX. That the learned Reference Judge has also failed to grant compensation to the appellant on account of loss occurred to the appellant since he was deprived of the right to lease the land for the period from 8 th August, 1972 to 15th April, 1985.

X. That the compensation awarded by the learned Reference Judge of only Rs.10,000/- under Clause (6) of Section 23(1) of the Land Acquisition Act was grossly inadequate.

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5. We have scrutinized the material on record and the

judgment delivered by the learned Reference Judge.

6. The main thrust of the appellant appears to be that the

market value as on 1st July, 1977, which was the relevant date to

be taken into consideration as per the directions of the Apex Court,

at the rate of Rs.90/- per sq. meter is inadequate and the same

ought to have been determined at the rate of Rs.200/- per sq.

meter. All other grounds appear to be consequential to this main

ground. Only if the appellant succeeds on this main ground, the

other grounds would be required to be gone into.

7. The learned Reference Judge, while determining the market

value at the rate of Rs.90/- per sq. meter as against Rs.10/- per sq.

meter, as was determined by the Special Land Acquisition Officer,

has taken into consideration the voluminous material placed on

record. It appears from the material placed on record that the

claim of the appellant was resisted by the respondent-State on the

main ground that the appellant himself had claimed the rate of

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Rs.25/- per sq. meter while compensation before the Land

Acquisition Officer was determined. It appears to be the case of the

respondent-State that having himself claimed the compensation at

the rate of Rs.25/- per sq. meter before the Land Acquisition

Officer, the appellant was estopped from claiming higher

compensation. However, the learned Reference Judge, and rightly

so, has rejected the said contention on behalf of the State. The

learned Reference Judge has held that in view of the provisions of

Section 28A of the said Act, the appellant is entitled to get

compensation at the rate which was determined in the judicial

proceedings in respect of the neighbouring pieces of land.

8. The learned Reference Judge has taken into consideration

that the land which was purchased by the appellant vide the sale

deed executed on 17th September, 1966, was at the rate of

Rs.4500/- per acre, i.e. Rs.1.10 paise per sq. meter. It was also the

ground raised by the respondent-State that the land in question

was a barren land and it was under water, as is evident from

Exhibit 28, for the period between 1970 to 1972 and as such, the

said land cannot be considered to be a non-agricultural land for

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the purpose of valuation. Again, and rightly so, the learned

Reference Judge has rejected the said contention on behalf of the

State. The learned Reference Judge has held that the relevant

factor to be taken into consideration while determining as to

whether the land could be considered as an agricultural or non-

agricultural land is that, whether the land in question has potential

to be put to non-agricultural use or not, and not it's actual use. The

learned Reference Judge has held that the very fact that the N.A.

permission was in operation for a period of three years and it came

to be withdrawn only on account of the notification issued under

Sections 4 and 6 of the said Act was a factor sufficient for

considering the same to be a non-agricultural land. The learned

Reference Judge has further found that, the land was abutting the

road between Thane and Pune, and that the adjoining areas were

subsequently used for industrial and residential purpose, were the

factors which went in favour to hold that the land is having a non-

agricultural potential. The learned Reference Judge, while

deciding the Reference, has taken into consideration the evidence

of witness Mr. Keskar which is at Exhibit 47 which had thrown

light on the transaction between CIDCO and FCI. The learned

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Reference Judge however held that the transaction between

CIDCO and FCI was with regard to the lease of the land for 99

years and therefore, while determining the compensation, it will

have to be determined to the extent of 65% of the land under the

ownership. The learned Reference Judge has also taken into

consideration the evidence of the witness Mr. Godbole in that

regard. The learned Reference Judge has, on the basis of the

evidence of witnesses Mr. Godbole and Mr. Keskar, held that the

increase in the price was to the extent of 45% per annum.

However, the learned Reference Judge has found that there were

no sale instances to show that the price of the land has increased 9

fold from 1970 to 1977.

9. The learned Reference Judge further found that, in the case

of lands which are in the vicinity of the appellant's land, in the

earlier Reference, the Reference Court has granted the rate of

Rs.15/- per sq. meter taking the 3rd February, 1970 date as the

relevant date. While determining the rate of Rs.15/- per sq. meter

taking the 1970 date as the relevant date, the learned Reference

Jduge has also relied on the evidence of a witness of the opponent,

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namely Mr. Jayavant Tamhankar. The learned Reference Judge,

therefore, held that in view of the orders passed in the References

in the similar cases of land, Rs.15/- can be taken as a bottom line

of the market rate for the year 1970. The learned Reference Judge,

therefore, has held that the enquiry in pursuance to the orders

passed by the Hon'ble Apex Court would be only as to what would

be the increase in the rate of the land from 1970 to 1977. The

learned Reference Judge has observed that normally the increase

in the rate would be in the vicinity of 10% to 15% per annum.

10. However, the learned Reference Judge, on the basis of the

evidence led before him, has found that taking into consideration

that on account of construction of the bridge on Thane creek, the

distance between Mumbai and the land in question is reduced by

23 kilo meters, the increase of 10% to 15% per annum could not

be justified in the present case and the rate would have to be

determined by considering the higher rate. However, the learned

Reference Judge, while holding that the land in question would be

entitled to a higher rate of increase than the normal 10% to 15%

per annum, also held that the same rate cannot be granted as has

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been granted in the transaction between CIDCO and FCI. The

learned Reference Judge has held that insofar as CIDCO is

concerned, it had developed a township and has also provided

various amenities like gardens, schools, parking places etc. and

had undertaken development of a township. It was therefore, held

that the land cannot be valued with the same valuation as to the

rate determined by CIDCO in the year 1977.

11. The learned Reference Judge has further observed that the

witness of the opponent, namely Mr. Tamhankar, himself had

admitted that the rate of the land in Panvel in the year 1975 was

Rs.60/- per square meter and in the year 1984, i.e. on the date on

which his evidence was recorded, it had gone upto Rs.250/- per

square meter.

12. The learned Reference Judge has further taken into

consideration that CIDCO has sold the plot to FCI in 1976 at the

rate of Rs.50/- per sq. meter. The learned Reference Judge further

found that if this rate is applied to the free hold land, it would be

around Rs.90/- per sq. meter. It is pertinent to note that between

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1970 to 1977, there were no transactions. The learned Reference

Judge rightly held that the transactions for the post 1977 period

cannot be taken into consideration. Thus, taking into consideration

all these factors, the learned Reference Judge has held that the

rate of Rs.90/- per sq. meter would be a proper rate as on 1 st July,

1977. The compensation has been worked out at the said rate.

13. Insofar as the expenses incurred towards fencing of barbed

wire, the learned Reference Judge has observed that the cost

incurred by the petitioner for erecting the barbed wire fencing was

Rs.10,000/- and taking into consideration the rise in prices,

Rs.40,000/- would be a reasonable amount.

14. Insofar as the claim of the petitioner that he was entitled to

compensation on account of deprivation of right to lease the land,

the learned Reference Judge found that the appellant did not lead

any evidence in that regard and as such, the claim of Rs.10 lakhs

in that regard was exaggerated. The learned Reference Judge,

therefore, found that an amount of Rs.10,000/- under the said

head would be a reasonable amount. It can thus be seen that the

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view taken by the learned Reference Judge is upon a correct and

proper appreciation of the evidence that was led before him. The

learned Reference Judge has taken into consideration all the

relevant factors which are to be taken into consideration while

determining the value of the land as on 1st July, 1977.

15. In that view of the matter, we find that there is no merit in

the matter. The First Appeal is dismissed.

   (RIYAZ I. CHAGLA, J.)                                         (B. R. GAVAI, J.)