Bombay High Court
The State Of Maharashtra And ... vs Sayaji Rambhau More And Others on 31 July, 2017
Bench: P.R. Bora
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
5 FIRST APPEAL NO. 4021 OF 2016
1. The State of Maharashtra,
Through : The Collector, Beed.
2. The Executive Engineer,
M. I. (L.S. Division ) Beed,
Tq. & Dist. Beed. .... APPELLANTS
(Ori. Respondents)
VERSUS
1. Bhausaheb s/o Tukaram Chagan,
Age : Major, Occu.: Agril.,
R/o.: Shelarwadi, U/v. Kerul,
Tq. Ashti, Dist. Beed.
2. Babasaheb s/o Bhaurao Chagan,
Age : Major, Occu.: Agril.,
R/o.: Shelarwadi, U/v. Kerul,
Tq. Ashti, Dist. Beed.
3. Lilabai Bhausaheb Chagan,
Age : Major, Occu.: Agril.,
R/o.: Shelarwadi, U/v. Kerul,
Tq. Ashti, Dist. Beed.
DEAD L.Rs.
3.1 Bhamabai w/o Arjun Gawade,
Age : Major, Occu.: Agril.,
R/o.: Kerul, Tq. Ashti, Tq. Ashti,
Dist. : Beed.
4. Ashok Bhaurao Chagan,
Age : Major, Occu.: Agril.,
R/o.: Shelarwadi, U/v. Kerul,
Tq. Ashti, Dist. Beed.
5. Vitthal Bhaurao Chagan,
Age : Major, Occu.: Agril.,
R/o.: Shelarwadi, U/v. Kerul,
Tq. Ashti, Dist. Beed.
.... Respondents
(Ori. Claimants)
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WITH
FIRST APPEAL NO. 4022 OF 2016
1. The State of Maharashtra,
Through : The Collector, Beed.
2. The Executive Engineer,
M. I. (L.S. Division ) Beed,
Tq. & Dist. Beed. .... APPELLANTS
( Ori. Respondents)
VERSUS
1. Sayaji Rambhau More,
Age : Major, Occu.: Agril.,
R/o.: Morewadi, Y/v. Kerul,
Tq. Ashti, Dist. Beed.
2. Nanabhau s/o Pvambhau More,
Age : Major, Occu.: Agril.,
R/o.: Morewadi, Y/v. Kerul,
Tq. Ashti, Dist. Beed.
3. Mahadeo Rambhau More,
Age : Major, Occu. Agril.,
Age : Major, Occu.: Agril.,
R/o.: Morewadi, Y/v. Kerul,
Tq. Ashti, Dist. Beed.
4. Pandurang Rambhau More,
Age : Major, Occu.: Agril.,
R/o.: Morewadi, Y/v. Kerul,
Tq. Ashti, Dist. Beed.
5. Shivaji Rambhau More,
Age : Major, Occu.: Agril.,
R/o.: Morewadi, Y/v. Kerul,
Tq. Ashti, Dist. Beed.
6. Bhvsen Rambhau More,
Age : Major, Occu.: Agril.,
R/o.: Morewadi, Y/v. Kerul,
Tq. Ashti, Dist. Beed. .... RESPONDENTS.
(Ori. Claimants)
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...
AGP for Appellant / State : Shri. S. M.Ganachari
Advocate for Respondents: Shri. C. K. Shinde.
...
CORAM : P. R. BORA, J.
DATE : 31.07.2017.
ORAL JUDGMENT :
1) Present appeals are filed taking exception to the common
judgment and award passed by the District Court at Beed (hereinafter
referred to as the Reference Court) in LAR No. 92/2010 with LAR No.
91/2010 decided on 15th February, 2012.
2) The lands which are involved in the present appeals were
acquired for village tank No.3 known as Kerul Project. The notification
under Section4 of the Land Acquisition Act 1894 (hereinafter referred to
as the Act) in that regard was published in the official gazette of
16.02.2006. After having complied with the procedure, award under
Section 11 of the Act was passed on 24.06.2007. The S.L.A.O. had
offered compensation at the rates ranging between Rs.750/- to Rs.945/-
per Are. Admittedly, the lands involved in both the appeals are Jirayat
lands. Dissatisfied with the amount of compensation offered by the
S.L.A.O, applications were preferred by the claimants under Section 18
of the Land Acquisition Act to the Collector, Beed and in turn the
Collector, Beed, forwarded the said applications for adjudication to the
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District Court, Beed. Before the Reference Court, the claimants had
claimed the compensation at the rate of Rs.2,500/- per Are.
3) In order to substantiate their claim, the claimants in
addition to their own evidence had placed on record three sale
instances. No oral or documentary evidence was adduced on behalf of
the State. The Reference Court on the assessment of the oral and
documentary evidence before it, determined the market value of the
subject lands at the rate of Rs.2,215/- per Are and accordingly enhanced
the amount of compensation. The Reference Court also made the
claimants entitled for the statutory benefits and the interest as provided
under the Act. Aggrieved by the same, State has preferred the present
appeals.
4) Shri. Ganachari, learned AGP appearing for the State
assailed the impugned common judgment and award on various
grounds. The learned AGP submitted that the Reference Court has erred
in relying upon the sale instances brought on record by the claimants
which were pertaining to the small pieces of lands. The learned AGP
further submitted that the Reference Court has further erred in not
considering that all the sale instances were pertaining to the seasonally
irrigated lands. The learned AGP further submitted that the Tribunal
has further manifestly erred in ignoring the fact that in all the sale
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instances which were brought on record by the claimants, the
purchasers of the said lands were adjacent land holders. The learned
AGP submitted that since all above aspects were not properly considered
by the Reference Court, the market value of the subject lands has been
unreasonably determined by the Reference Court on higher side. The
learned AGP submitted that the Reference Court has also erred in
awarding interest under Section 34 of the Act from the date of
possession. Learned AGP, therefore, prayed for modification in the
award. The learned AGP submitted that in fact the S.L.A.O. had
determined the market value aptly and no interference was required in
the amount of compensation so offered by the S.L.O.A. The learned AGP
prayed for allowing the appeals in aforesaid terms.
5) Shri C. K. Shinde, learned Counsel appearing for the
claimants in both the matters supported the impugned judgment and
award. Inviting my attention to the discussion in para no.6 of the
impugned judgment the learned Counsel submitted that the learned
Reference Court has considered all plus and minus factors and has given
appropriate allowance for each of the factor and appropriately
determined the market value at the rate of Rs.2,215/- per Are and no
interference is required in the market value as has been determined by
the Reference Court. Learned Counsel though conceded that the interest
under Section 34 of the Act could not have been awarded from the date
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of possession in view of the Full Bench judgment of this Court in the
case of State of Maharashtra Vs. Shiva Rangari reported in 2016 (3)
Mh.L.J. 457, further submitted that the Reference Court has also
committed an error in not awarding the interest on the amount of
solatium and on 12% component, on the enhanced amount of
compensation. The learned Counsel submitted that considering overall
circumstances, no interference is warranted in the impugned judgment
and award. The learned Counsel, therefore, prayed for dismissal of the
appeals.
6) I have carefully considered the submissions advanced by the
learned Counsel appearing for the respective parties. I have perused the
impugned judgment and the other material placed on record. Perusal of
the impugned judgment reveals that three sale instances were produced
on record by the claimants in order to substantiate their claim for
enhancement in the amount of compensation. Admittedly, no oral or
documentary evidence was adduced by the State. All the three instances
which are relied upon by the Reference Court pertain to the lands situate
at village Kerul. The lands involved in the present appeals are also from
village Kerul. It was brought to my notice by the learned Counsel for the
claimants that sale instances of the year 2005-2006 were not available
and hence were not cited by the claimants. Learned Counsel submitted
that even before the S.L.A.O. the sale deeds which were for his
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consideration, were of the period 2001 to 2003.
7) Now it would be appropriate to consider the evidence as
about the sale instances placed on record by the claimants. The land
which was the subject matter of Exh-15 was admeasuring 10 Are and
was sold vide the registered sale deed executed on 13 th Jule, 2004 for
total consideration of Rs.25,000/- i.e. at the rate of Rs.2,500/- per Are.
The land which is involved in Exh-21 was admeasuring 20 Are and was
sold on 16 September, 2003 for consideration of Rs.50,000/- i.e. again
at the rate of Rs.2,500/- per Are. The sale deed at Exh-23 is pertaining
to 44 Are land which was sold for the consideration of Rs.1,00,000/- by
the registered sale deed executed on 29 th September, 2003, the rate of
which comes to Rs.2,272/- per Are.
8) From the discussion made by the Reference Court, it reveals
that the Reference Court has considered all the three sale instances for
determining the market value of the acquired lands. The discussion
made by the Reference Court further reveals that the Reference Court
has given appropriate notional increase in price of the said lands and
has arrived at their market value on the date of issuance of Section 4
notification i.e. 16th February, 2006. The Reference Court has then
drawn an average rate of consideration per Are received to the aforesaid
lands and on the basis of it, by giving some negative and positive
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allowances, has fixed the market value of the subject lands at the rate
of Rs.2,215/- per Are.
9) As was pointed out by the learned AGP in all the three sale
instances considered by the Reference Court the subject lands were
purchased by the adjacent land holders. The learned AGP submitted
that this aspect has been completely ignored by the Reference Court
while considering the said sale instances for determining the market
value of lands involved in the present appeals. The learned AGP
submitted that the Reference Court has only considered one aspect that
the acquired lands areJirayat lands and the lands which were subject
matter of the three sale instances were seasonally irrigated lands. Some
negative allowances were, therefore given and deducting 25% of the
said average rate the market rate was fixed of the lands involved in the
present appeals by the Reference Court.
10) As was contended by the learned AGP on two grounds the
Reference Court was bound to make appropriate deductions, first that
the sale instances were pertaining to small pieces of lands and the other
that purchaser of the said lands were beneficiaries being adjacent land
holders. Learned AGP submitted that had the Reference Court
considered the aforesaid two aspects, in no case the market value of the
acquired lands would have been determined by the Reference Court at
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the rate more than Rs.1,100/- to 1,200/- per Are. Learned AGP,
therefore, prayed for modifying the award by directing determination of
the compensation at the said market rate. Per contra, it was the
contention of the learned Counsel for the claimants that the negative
factors were also properly considered by the Reference Court and
accordingly the market value has been fixed by the Reference Court.
11) On perusal of the impugned judgment, it is quite evident
that Reference Court has failed in not considering the aspect which has
been prominently brought on record that in all the sale instances the
lands were purchased by the adjacent land holders. It need not be
stated that for several reasons the adjacent land holders may purchase
the lands adjacent to their existing land and may give a higher price
than any other person may give for the said lands.
12) In so far as the another aspect that the lands which were the
subject matter of the sale instances were seasonally irrigated lands, the
Reference Court has considered the said aspect and has, thus,
proportionally reduced the market price on that ground.
13) The lands which were subject matter of the sale instances
i.e. in one sale instance 20 Are, in another 10 Are and in last 44 Are,
were all comparatively small portions of lands. This aspect also does not
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seem to have been appropriately considered by the Reference Court.
14) Thus, aforesaid are the two aspects which need to be
considered by this Court. It is undisputed that the lands which were the
subject matter of all the three sale instances were purchased by the
adjacent land holders. As I noted earlier, it is quite probable that the
adjacent land holders had given higher price for the said lands which the
other purchaser may not have given. Similarly, the lands involved in the
aforesaid sale instances are comparatively of small portions. It need not
be stated that the small portions of lands may ordinarily receive the
higher price than the price which may be received by the large track of
lands. Thus, while determining the market value of the acquired lands
on the basis of the lands involved in the aforesaid three sale instances,
the Reference Court must have given negative allowances in appropriate
proportion. The Reference Court has assessed average price of the lands
involved in the sale instances placed on record as on the date of
notification under Section 4 of the Act issued for the acquisition of the
acquired lands. According to me, the same has been correctly assessed
by the Reference Court. While determining the market value of the
acquired lands on the basis of said average price, negative allowances
are to be given on two grounds as mentioned herein above; first on the
count that the concerned lands were purchased by the adjacent holders
and other that they were small portions of lands. Giving such
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allowances according to me the market value of the acquired lands on
the date of Section 4 notification can be determined at the rate of
Rs.1,800/- per Are. I hold accordingly and direct that the amount of
compensation to be paid to the claimants in the present appeals be
redetermined and the award be modified accordingly.
15) In so far as interest rate is concerned, the Reference Court
has erred in awarding the interest under Section 34 of the Act from the
date of possession. The said fact has also been conceded by the learned
Counsel for the original claimants. Such interest is payable from the
date of award. Similarly though no appeal has been preferred by the
claimants, since the mistake committed by the Reference Court is
apparent from the face of the record, I deem it necessary to correct the
said mistake by holding the claimant entitled for the interest under
Section 34 of the Act on the enhanced amount of 12% component as
well as 30% solatium. The impugned awards be modified accordingly.
16) The record shows that the State had deposited the entire
amount of award with interest as has been awarded by the Reference
Court in this Court and 75% of the said amount was permitted to be
withdrawn by the original Claimants. The remaining 25% amount lying
with this Court be transmitted to the Reference Court. After
modification of the award in view of the present order passed by this
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court, if any more amount is found payable to the claimants in addition
to the amount already withdrawn by them, the same shall be paid to the
claimants or otherwise the said amount be refunded to the State
Government.
17) Appeal stands allowed in the aforesaid terms.
(P. R. BORA)
JUDGE
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