Dynadeo Honaji Narkhede (Dead) ... vs State Of Mah. Thru Collector & 2 Ors
2017 Latest Caselaw 2586 Bom

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

                                                           FIRST APPEAL NO.539/2007

Dynadeo Honaji Narkhede (dead)
through his legal heirs

1)            Rambhau Dnyandeo Narkhede

2)            Laxman Dnyandeo Narkhede

3)            Sau. Kusumbai W/o Vishwanath Mahajan,
              Occu. Household. 

4)            Sau. Sarlabai W/o Ramdas Varade,
              Occu. Household.

              Appellant Nos. 1 and 2 R/o At Post 
              Talaswada, Tahsil Malkapur, 
              District Buldana. 

              Appellant No.3 R/o At Post Datala, 
              Tahsil Malkapur, District Buldhana. 

              Appellant No.4 R/o At Post Lonwadi, 
              Tahsil Malkapur, District Buldana.                                                                                                               ..Appellants.

                          ..Vs..

1.            State of Maharashtra,
              through Collector, Buldana. 

2.            Maharashtra Industrial Development
              Corporation, through its Chief Executive
              Officer, having its Regional Office at 
              Amravati Industrial Estate, By Pass Road, 
              Amravati.                                                                                                                            ..Respondents.
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              Shri V.S. Giramkar, Advocate for the appellants. 
              Ms. N.P. Mehta, A.G.P. for respondent No.1.
              Shri M.M. Agnihotri, Advocate for respondent No.2.
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                                                                 CORAM :  B.P. DHARMADHIKARI, J.

                                                                 DATE  :     22.5.2017.


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ORAL JUDGMENT

1. Heard Shri V.S. Giramkar, Advocate for the appellants, Ms. N.P.

Mehta, A.G.P. for respondent No.1 and Shri M.M. Agnihotri, Advocate for

respondent No.2.

2. At the threshold, appellants have presented an application under

Order VI Rule 17 of Code of Civil Procedure seeking leave to correct a

typographical error in para 1 and para 3 of appeal memo. They have also

sought leave to delete para 2 thereof.

3. Respective counsel appearing for the respondents have no objection.

I have perused application. It is not causing any prejudice and attempts to

bring on record correct facts, hence it is allowed. Necessary amendment be

carried out forthwith after the Registry registers civil application.

4. With the consent of parties appeal has been taken up for final

hearing. Advocate Giramkar has pointed out that Land Acquisition Officer has

awarded compensation at Rs.13,000/- per hector and Reference Court has

enhanced it only to Rs.28,000/- per hector. He submits that respondent No.2

has acquired lands for non-agricultural development. This agricultural

potential and non-agricultural potential ought to have been properly evaluated

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and rate should have been revised accordingly. He further submits that Land

Acquisition Officer has awarded amount of Rs.11,892/- for well constructed in

the acquired land. The appellants are entitled to Rs.30,000/- towards

compensation and rejection of that demand by Reference Court is unjust.

5. To substantiate his contention that purpose for which land is being

acquired needs to be kept in mind while determining the compensation he

relied upon judgment of Hon'ble Apex Court given in the case of Nelson

Fernandes and Ors. V/s. Spl. L.A.O. South Goa and Ors. reported at 2007 (4)

SBR 18.

6. Advocate Agnihotri on behalf of respondent No.2 - Acquiring Body

submits that demand for enhanced compensation towards well is

unsustainable. Reference Court has found no material produced before it to

substantiate the same. In appeal before this Court situation has not undergone

any change.

7. He invites attention to provisions of Section 24 (fifthly) to urge that

law itself prohibits look into proposed increase in valuation of land due to its

acquisition or purpose for which the land would be put after acquisition. He

has relied upon judgments of Hon'ble Apex Court given in the case of State of

Orissa V/s. Brij Lal Misra and others reported in (1995) 5 SCC 203 and Special

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Land Acquisition Officer V/s. Karigowda and others reported at (2010) 5 SCC

708. According to him, contention raised by appellants fall in four corners of

the facts looked into by Hon'ble Apex Court in these two judgments. He

distinguishes the judgment relied upon by Advocate Giramkar. According to

him, position emerging in the light of 5 th contingency provided in Section 24

did not fall for consideration in that judgment and it is distinguishable on facts.

8. Learned A.G.P. has supported arguments of Advocate Agnihotri.

9. With the assistance of respective counsel I have perused records.

Questions which fall for determination are:

(i) Whether appellants are entitled to enhanced compensation towards well ?

(ii) Whether purpose for which land is being acquired is relevant for the purposes of ascertaining the market value of the acquired land ?

10. The material on record shows that Land Acquisition Officer has

awarded sum of Rs.11,892/- towards well. It is also observed that no evidence

has been produced before it to substantiate demand for this enhancement,

however, in para 13 he has added Rs.5,000/- as additional compensation for

well. This addition has not been questioned by respondent No.2 at all. Hence

there is no evidence produced by appellants to justify demand of Rs.30,000/- as

compensation towards well, point No.2, mentioned supra, is answered in

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negative.

11. The demand of Rs.75,000/- per hector as cost of land is due to

non-agricultural purpose to which it is to be put by respondent No.2 - Industrial

Development Corporation. The perusal of Section 24 shows that it mandates

Court to ignore certain situations. As per contingency No.5 stipulated therein

Court cannot consider any increase to the value of land forming subject matter

of acquisition only due to proposed user or purpose behind such acquisition.

This express mandate has been looked into by Hon'ble Apex Court in the case

of State of Orissa V/s. Brij Lal Misra and others (supra) in para 5. In para 3

while explaining the concept of potential value Hon'ble Apex court has stated

about capability of land to be used in existing condition in future. Thus change

in user consequent to acquisition cannot form relevant consideration. This has

been so held again while quoting this judgment with approval in para 48 in the

judgment given in case of Special Land Acquisition Officer V/s. Karigowda and

others (supra).

12. Hon'ble Apex Court in the judgment given in case of Nelson

Fernandes and Ors. V/s. Spl. L.A.O. South Goa and Ors. (supra) was not

required to consider the situation looked into by it in above two judgments.

There the land was acquired for construction of BG line for Kokan Railway.

Compensation awarded by Land Acquisition Officer was hiked by Reference

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Court. In appeal before High Court, High Court rejected the report of Valuer

and reduced rate of compensation from Rs.192/- per Sq. Mtr. to Rs.38/- per Sq.

Mtr. In the process, High Court held that prices fetched from small plots

cannot be applied to the lands covering large area and that considering location

of acquired lands vis-a-vis its nature and the plot of sale deeds, a deduction of

at least of 85% ought to have been made. It is this deduction at 85% which has

been commented upon by Hon'ble Apex Court. In para No.28 Hon'ble Apex

Court has stated that the Special Land Acquisition Officer and District Judge as

also High Court failed to note that purpose of acquisition was for railways and

that purpose was relevant for taking into consideration to decide

compensation. Further discussion in para 28 shows that this purpose was

relevant for the purpose of ascertaining the quantum of deduction. The

Hon'ble Apex Court has after quoting compensation awarded by Land

Acquisition Officer and by Reference Court has also pointed out the deduction

towards development charges and it has also relied upon its earlier judgment

given in the case of Viluben Jhalejar Contractor (D) by Lrs. V/s. State of Gujarat

reported in JT 2005(4) SC 282. In that judgment while commenting upon the

quantum of deduction towards development charges Hon'ble Apex Court

pointed out that the land there (in 2005 judgment) was acquired for being

submerged in water of a dam and had no potential value. In that judgment

after considering this purpose and the fact that sale deed relied upon was of a

small plot, Hon'ble Apex Court awarded compensation of Rs.160/- per Sq. Mtr.

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in respect of large plots and Rs.175/- per Sq. Mtr. for smaller plots. Thus this

judgment only shows that purpose for which land is being acquired or is to be

put may became relevant while determining the quantum of deduction for

finalizing the amount of compensation. Hon'ble Apex Court, therefore, was not

required to look into 5th contingency stipulated in Section 24 of Land

Acquisition Act, 1894. This judgment, therefore, does not enable appellants to

urge that their lands have acquired NA potential because of acquisition by

respondent No.2. Grievance made before this Court by appellants is, therefore,

unsustainable.

Accordingly point No.2 is also answered against appellants. Hence

appeal fails. It is dismissed with no order as to costs. Rule discharged.

JUDGE

Tambaskar.