Mohd. Mustak Mohd. Ismail vs The Special Land Acquisition ...
2017 Latest Caselaw 3149 Bom

 fa164--06.J.odt                                 1


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

                      FIRST APPEAL NO.164 OF 2006

          Mohd. Mustak. Mohamad Ismail
          Age 40 years, Occ.: Agriculturist
          R/o Shirala,
          Tq. And Dist.Amravati        ....... APPELLANT

                   ...V E R S U S...

 1]       The Special Land Acquisition Officer,
          Collector Office, Amravati.

 2]       State of Maharashtra through
          Collector, Amravati

 3]      The Central Railway, through
         General Manager, Bhusawal. ....... RESPONDENTS
 -------------------------------------------------------------------------------------
         Shri S. G. Loney, Advocate for Appellant.
         Shri A. R. Chutke, AGP for Respondent Nos.1 & 2.
         Shri. Zahit Shekhani H/F Shri. R.G.Agrawal Adv. for 
         Respondent No.3 
 -------------------------------------------------------------------------------------
          CORAM : SMT. DR. SHALINI PHANSALKAR-JOSHI, J. 

th DATE : 14 JUNE, 2017.

ORAL JUDGMENT

This appeal is preferred by the original claimant,

being aggrieved by the judgment and order dated 09.01.2006

passed in Land Acquisition Case No.111 of 2002 by the 4 th Ad-

hoc Additional District Judge, Amravati, as his claim for

enhanced amount of compensation towards construction of

the well, filed under Section 18 of the Land Acquisition Act

came to be rejected.

2] Facts of the appeal can be stated as follows:

The respondent has acquired the land

admeasuring 0.44 R. out of Gat 1630, situated at village

Shirala, Tq. and District-Amravati for the purpose of Amravati

to Narkhed railway line. Vide Award dated 06.01.2001, the

Land Acquisition Officer granted the compensation of

Rs.69,000/- per hectare. Though the well constructed by the

appellant was situated in the acquired land, no separate

compensation was granted for the said well. Hence, being

dissatisfied with the Award, appellant approached the

Reference Court, contending inter-alia that he has constructed

the said well, which was 14 feet in diameter and 50 feet in

depth. It was constructed in bricks and mortar, by obtaining

loan of Rs.7,200/- from Dena Bank. The market value of the

said well was Rs.1,50,000/-. However in the Reference before

the trial Court, he claimed the compensation of Rs.1,00,000/-

towards the said well.

3] This reference came to be resisted by the

respondents herein denying the very existence of the well in

the land acquired by the respondents and hence, there was no

question of giving any compensation for the said well.

4] In support of his case, the appellant examined

himself at Exh.20 and also examined the Architect and

Engineer Rameshchandra J. Karwa at Exh.27 to prove the

valuation of the well. Further he also produced on record

various documentary evidence.

5] On appreciation of the evidence led by the

appellant, Reference Court was pleased to hold that the well

was very much in existence in field Gat No. 1630 belonging to

the appellant. However, the appellant has not produced on

record any evidence to show that the said well was a part and

parcel of the acquired land. The report of Joint measurement

taken by the Land Acquisition Officer was not produced

before the Reference Court and whatever evidence was

produced before the Reference Court was, though proving the

existence and construction of well, as it was not proved that

the well was part and parcel of the acquired land, the learned

Reference Court dismissed the petition filed by the appellant.

6] This judgment of the Reference Court is

challenged in this appeal by learned Advocate for the

appellant by submitting that more than sufficient evidence

was produced on record to show that the well was

constructed and it was very much in existence. In addition to

that, positive assertion was made by the appellant in his

evidence before the Court that the well was in the land

acquired by the respondents. It is submitted that the appellant

may have failed to produce the report of Joint measurement

in the Reference Court, however, in this appeal, it is

submitted that the report of joint measurement is filed on

record which clearly reveals that the well was in existence in

the area admeasuring 0.44 hectare which was acquired from

the land bearing Gat No. 1630 belonging to appellant. Hence,

it is urged that if this piece of evidence is taken into

consideration in the appeal, then the appellant becomes

entitled for compensation towards the value of the well.

7] However, as rightly submitted by AGP, the

original report of Joint measurement is not produced but only

copy of some portion of the Report is produced. Hence, this

report cannot be taken into consideration for proving the

existence of the well in the acquired land. In view thereof, the

finding arrived at by the Reference Court on this aspect

cannot be disturbed. As a matter of fact, this was only the

issue raised for consideration before the Reference Court and

before this Court also. Hence, the appeal needs to be

dismissed.

8] However, at this stage, learned Advocate for the

appellant has advanced the submission that the Award under

which the land of the appellant was acquired by the Land

Acquisition Officer, under the same Award lands of some

other occupants of the said village were also acquired. The

name of one of the occupants whose land was acquired under

the same Award is Dinesh Panjabrao Patil. His name is also

appearing in the Award. The Land Acquisition Officer has

awarded him in the compensation at the rate of Rs.69,000/-

per hectare. It was the same rate which was awarded to the

appellant also by the Land Acquisition Officer. It is submitted

that Dinesh Panjabrao Patil has filed Reference before the

Court for enhancement of the amount of compensation and

by the judgment and Award dated 09.01.2006, the Reference

Court has enhanced the amount of compensation for his land

to the extent of Rs.1,00,000/- per hectare. The respondents

herein had challenged the said judgment and award of the

Reference Court by filing First Appeal No. 785 of 2008 before

this Court and in that appeal, by the judgment and order

dated 5.9.2012, this Court has confirmed the said

compensation amount and dismissed the appeal preferred by

the respondents. It is, therefore, submitted that appellant also

becomes entitled to get the same amount of compensation, as

his land is situated in the same village and is acquired under

the same Award.

9] To substantiate this submission, learned Advocate

for the appellant has relied upon the judgment of Hon'ble

Apex Court in the case of Ambya Kalya Mhatre

(dead)through LRs. And other Vs. State of Maharashtra

reported in 2012(1) Mh.L.J. 9 and Ajay Pal and others Vs.

State of Haryana and another reported in 2014(9) Scale

449. It is urged that even in the absence of any reference or

amendment made in the Reference petition claiming

enhancement of amount of compensation, this court can

award such enhanced amount of compensation, if it is

awarded to other claimants whose lands were acquired from

the same village and under the same award.

10] According to Learned counsel for respondent

No.3, the appellant has, in Reference petition, not claimed

any enhanced amount of compensation on the count that the

Land Acquisition Officer has not valued his property. Hence,

this Court should not grant such enhanced amount of

compensation, in the absence of any evidence or pleadings to

that effect.

11] Therefore, the necessary question raised for

consideration in the appeal is whether in the absence of any

pleading or amendment being carried out in the petition and

in the absence of any evidence, enhanced amount of

compensation at the rate of Rs.1,00,000/- per hectare can be

awarded to the appellant as the similar amount of

compensation was awarded to the claimants whose lands

were acquired under the same Award?

12] Hon'ble Supreme Court in the above said decision

of Ambya Kalya Mhatre (supra) being faced with the similar

issue was pleased to hold as follows:-

"16...... A landowner, particularly a rural agriculturist, when he loses the land may not know the exact value of his land as on the date of the notification under section 4(1) of the Act. When he seeks reference he may be dissatisfied with the quantum of compensation but may not really know the actual market value. Many a time there may not be comparable sales, and even the Courts face difficulty in assessing the compensation. There is no reason why a landowner who has lost his land, should not get the real market value of the land and should be restricted by technicalities to some provisional amount he had indicated while seeking the reference. As noticed above, the Act does not require him to specify the quantum and all that he is required to say is that he is not satisfied with the

compensation awarded and specify generally the grounds of objection to the award. Under the scheme of the Act, it is for the Court to determine the market value. The compensation depends upon the market value established by evidence and does not depend upon what the landowner thinks is the value of his land. If he has an exaggerated notion of the value of the land, he is not going to get such amount, but is going to get the actual market value. Similarly if the landowner is under an erroneous low opinion about the market value of his land and out of ignorance claims lesser amount, that can not be held against him to award an amount which is lesser than the market value. When the Act does not require the land owner to specify the amount of compensation, but he voluntarily mentions some amounts, and subsequently, if the market value is found to be more than what was claimed, the landowner should get the actual market value. We fail to see why the landowner should get an amount less than the market value, as compensation. Consequently, it follows that if the landowner seeks amendment of his claim, he should be permitted to amend the claim as and when he comes to know about the true market value. When the Act is silent in regard to these matters, to impose any condition to the detriment of an innocent and ignorant landowner who has lost his land, would be wholly unjust".

13] In para No.17 of its judgment Hon'ble Supreme

Court was further pleased to observe that the Collector

making the offer of compensation on behalf of state is

expected to be fair and reasonable. He is required to offer

compensation based on the market value. Unfortunately,

Collectors invariably offer an amount far less than the real

market value, by erring on the safer side, thereby driving the

landowner first to seek a reference and prove the market

value before the reference Court and then approach the High

Court and many a time the Apex Court, if he does not get

adequate compensation. It was therefore held that, "it would

be adding insult to injury, if the landowner should be tied

down to a lesser value claimed by him in the reference

application, even though he was not required by law to

mention the amount of compensation when seeking

reference. The Act contemplates the landowner getting the

market value as compensation and no technicalities should

come in the way of the landowner getting such market value

as compensation".

14] In para-18, the Hon'ble Supreme Court was

further pleased to hold that "from the fact that the landowner

had sought increase only in regard to the land in the

application for reference, will not come in the way of the

landowner seeking increase even in regard to trees or

structures, before the Reference Court".

15] The legal position as cristalysed by the Hon'ble

Supreme Court in the authority is thus to the effect that the

landowner should get actual market value of the land

acquired and no technicalities should come in his way in

getting the actual market value.

16] In subsequent decision of Imrat Lal and others

Vs. Land Acquisition Collector and others, 2014(9) Scale

446, it was further held that, even if the landowners may not

have been able to seek intervention of this Court for grant of

enhanced compensation due to illiteracy, poverty and

ignorance, they should not be deprived of the benefit of

enhanced compensation which is awarded to other

landowners from the same village whose lands are acquired

under the same Award. Accordingly, the Hon'ble Supreme

Court was pleased to issue direction that those who have not

filed special leave petition should also be given enhanced

compensation.

17] Thus, it may be seen that trend of the decisions of

the Hon'ble Supreme Court is to extend benefits of the

provisions of this beneficial piece of legislation to those land

owners also who have not approached the Court, so that they

are not deprived of correct market value.

18] In such situation whether the appellant has in this

case claimed such amount of compensation in respect of the

correct valuation of land or not, it does not make any

difference. Here, in the case the fact remains that appellant

was not satisfied with the amount of compensation awarded

to him and hence, he has filed reference. His grievance was

that he had not got the correct and true market value of his

land. He might have sought the enhanced compensation on

the count that there was well in existence in the acquired

land. Assuming that he has failed to prove so, the fact remains

that he was not satisfied with the amount of compensation

granted to him, as it was not the true and correct market

value of the acquired land and if it is so, then it becomes the

duty of this court to ensure that he gets such true and correct

market value of the land.

19] What can be the true and correct market value of

the acquired land of appellant is now set at rest, in view of

the decision of Reference Court in respect of the reference

made by other land owners whose lands were acquired for the

same purpose and under the same Award. In those references,

the true and correct market value of the acquired land was

considered and it was enhanced to the tune of Rs.1,00,000/-

per hectare. When the respondent No.3 has challenged the

said valuation by preferring various appeals, those appeals

came be dismissed. A copy of the said judgment in F.A. No.

785 of 2008, which was filed by respondent No.3 against the

landowner Dinesh Panjabrao Patil is produced on record. It

shows that Dinesh Panjabrao Patil was awarded the

compensation at the rate of Rs.69,000/- by the LAO. It was

increased to Rs.1,00,000/- per hectare by the reference Court

and said order was confirmed by this Court in its judgment

dated 05.09.2012.

20] It is pertinent to note that the compensation

awarded to the present appellant by the LAO is at the rate of

Rs.69,000/- per hectare. Now if the enhanced amount of

compensation at the rate of Rs.1,00,000/- per hectare

awarded to the land of Dinesh Patil, by Reference Court is

held by this Court as true and correct value of the acquired

land, it follows that the appellant should also get the same

amount of compensation at the rate of Rs.1,00,000/- per

hectare, it being true and correct market value. To this limited

extent, the appeal needs to be allowed.

21] Accordingly the appeal is allowed. The

compensation amount awarded to the appellant by the LAO is

enhanced from Rs.69,000/- per hectare to Rs.1,00,000/- per

hectare, along with all the statutory benefits and interest over

the enhanced amount.

JUDGE

RGIngole