Bombay High Court
Mah. Industrial Devp. Corpn. ... vs Saraswatibai Daulat Warghane And ... on 29 November, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.745 OF 2006
AND
CROSS OBJECTION No.10 OF 2008
=========
FIRST APPEAL No.745 OF 2006
Maharashtra Industrial Development Corporation,
having its office a Marol Industrial Estate, Andheri,
East, Mumbai and having its Regional Office at
Udyog Bhavan, Civil Lines, Nagpur,
through its Chief Executive Officer. : APPELLANT
...VERSUS...
1. Sau Saraswatibai w/o. Daulat Warghane,
Aged about major.
Amendment carried 2. Shri Daulat s/o. Mahadeo Warghane (Dead),
out as per Court's Aged about major,
order dt.23.7.2013.
Both Resident of V.H.B. Colony,
Flat No.13/8,
Priyadarshani Nagar, Dharampeth,
Nagpur.
L.Rs. of Respondent No.2 :
I) Smt. Gangubai Daulatrao Warghane,
R/o. Motibag, Resident of Collector,
Amrai Road Sangli (Maharashtra).
II) Shri Prabhakar Daulatrao Warghane,
R/o. Plot No.405, Jagat Towers,
Tilak Nagar, Nagpur-10.
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III) Shri Anant Daulatrao Warghane,
R/o. 13/8, Priyadarshani Apartment,
Near RTO Office, Nagpur.
IV) Sau. Mangala Prabhakar Dhopte,
R/o. Sanmitra Mandal, Samdhi Ward,
Chandrapur.
V) Shri Shyam Daulatrao Warghane,
R/o. Motibag, Residence of Collector,
Amrai Road Sangli (Maharashtra)
VI) Shri Ramesh Daulatrao Warghane (Dead),
Amendment carried R/o. Kapil Towers, Canal Road,
out as per Court's New Ramdaspeth, Nagpur.
order dt.24.7.2017.
L.Rs. of Respondent No.2VI :
2VI-a) Seema wd/o. Ramesh Warghane
Aged 50 years,
Occupation : Household.
2VI-b) Akash Ramesh Warghane
Aged 28 years,
Occupation : Household.
2VI-c) Surabhi s/o. Ramesh Warghane
Aged about 25 years,
Occupation : Education,
Respondent Nos.(2VI-a) to (2VI-c) are
R/o. Plot No.6, Kapil Towers,
Canal Road, Ramdaspeth, Nagpur.
3. The Collector, Nagpur,
(Special Land Acquisition Officer,
General) Nagpur. : RESPONDENTS
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Shri M.M. Agnihotri, Advocate for the Appellant.
Shri Anand Parchure, Advocate for the Respondent Nos.1 and 2.
Miss H.N. Jaipurkar, Asstt. Government Pleader for Respondent No.3.
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AND
CROSS OBJECTION No.10 OF 2008
Maharashtra Industrial Development Corporation,
having its office at Marol Industrial Estate, Andheri,
East, Mumbai and having its Regional Office at
Udyog Bhavan, Civil Lines, Nagpur,
through its Chief Executive Officer. : APPELLANT
...VERSUS...
1. Sau Saraswatibai w/o. Daulat Warghane,
Aged about major.
2. Shri Daulat s/o. Mahadeo Warghane,
Aged about major,
Both 1 and 2 R/o. 13/8, Priyadarshani Nagar,
Dharampeth, Nagpur.
3. The Collector, Nagpur,
(Special Land Acquisition Officer,
General) Nagpur. : RESPONDENTS
1. Sau. Saraswatibai w/o. Daulat Warghane,
2. Shri Daulat s/o. Mahadeo Warghane. : CROSS-OBJECTORS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri M.M. Agnihotri, Advocate for the Appellant.
Shri Anand Parchure, Advocate for the Cross-objectors.
Miss H.N. Jaipurkar, Asstt. Government Pleader for Respondent No.3.
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CORAM : S.B. SHUKRE, J.
th
DATE : 29
NOVEMBER, 2017.
ORAL JUDGMENT :
1. This appeal and the cross-objection dispute grant of
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enhanced compensation by the Reference Court in an application filed
under Section 34 of the Maharashtra Industrial Development Act, 1961
(in short, "MID Act") by the Court of 2 nd Joint Civil Judge, Senior
Division, Nagpur, in Land Acquisition Case No.88/1993, by the judgment
and order dated 29th April, 2006, on the respective grounds that it is on
the higher side for the appellant - beneficiary and on the lower side for
the claimants/cross-objectors.
2. The land of the original claimants, one of whom (respondent
No.2) is now dead, bearing Survey No.52, admeasuring 1.66 HR, situated
at mouza Rengapar, Tahsil Hingna, District Nagpur was acquired by the
State(respondent No.3) for the purpose of development of industrial area
by the appellant. Parties to the appeal and the cross-objection are
hereinafter referred to as the "Beneficiary" (appellant), claimants (cross-
objectors) and the State (Respondent No.3), for the sake of clarity.
3. Notification under Section 1(3) of the MID Act was published
by the State in the Government Gazette on 27 th October, 1988 and it was
given effect from 28th February, 1988. Notification under Section 32(2)
of the MID Act was published in the Government Gazette on 22 nd
February, 1990. The claimants were called upon to deliver possession of
the acquired land on 20th June, 1992 on payment of compensation. The
award granting compensation was passed by the Special Land Acquisition
Officer on 25-3-1991 and as the claimants were not satisfied with the
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compensation so granted, they moved an application under Section 34 of
the MID Act read with Section 18 of the Land Acquisition Act, which was
referred for adjudication to the 2nd Joint Civil Judge, Senior Division,
Nagpur.
4. The application was contested on merits by the Beneficiary.
The Reference Court, however, found that the compensation awarded by
the Special Land Acquisition Officer was inadequate and therefore,
enhancing the same, the Reference Court granted compensation by fixing
the market value of the acquired land to be at Rs.1,25,000/- per hectare.
The Reference Court also granted some additional compensation on
account of dura, mango trees, jambhul trees and other trees. The
judgment and order in this regard were passed on 29.4.2006. Not being
satisfied with the same, the appellant and the claimants are before this
Court in the present appeal and the cross-objection.
5. I have heard Shri M.M. Agnihotri, learned counsel for the
Beneficiary and Shri Anand Parchure, learned counsel for the
claimants/cross-objectors and Ms. H.N. Jaipurkar, learned Assistant
Government Pleader for the State. I have also gone through the record of
the case including the impugned judgment and order.
6. Now, the only point which arises for my determination is :
Whether the compensation granted by the Reference
Court is just and proper ?
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7. Shri M.M. Agnihotri, learned counsel for the Beneficiary
submits that the Reference Court has wrongly relied upon the sale
instances vide Exhs.-59 and 72 while fixing the market value of the
acquired land. He submits that the evidence available on record
indicated that these were not the comparable sale instances and
therefore, ought not to have been considered by the Reference Court. He
also submits that the Reference Court while fixing the market value of
the acquired land to be at Rs.1,25,000/- per hectare and of the trees,
adopted the reasoning not supported by any evidence on record. Thus,
he would submit that this is a fit case for making interference with the
impugned judgment and order.
8. Learned counsel for the claimants submits that the Reference
Court has appropriately considered the evidence available on record and
granted the compensation, albeit on a lower side. According to him, the
sale instances vide Exh.-59 and 72 were of comparable lands because
lands involved in these sale instances were situated within a radius of 1
Km. of the acquired land and there is evidence to show that in terms of
soil quality, and the irrigation facilities the acquired land stood on much
higher footing than the lands involved in those sale instances. Thus, he
submits that the interference, if made, with the impugned judgment and
order be made for enhancing the compensation appropriately. He,
however, supports the valuation carried out by the Reference Court in
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respect of dhura and trees.
9. It is seen from the impugned award that even though the
Reference Court has found the land involved in the sale instance
vide Exh.-59, was of inferior quality, it was comparable in all other
respects with the acquired land and therefore, it was thought fit by the
Reference Court to place its reliance to some extent on this sale instance.
It is further seen that similar was the treatment given by the Reference
Court to another sale instance vide Exh.-72. The Reference Court,
however, rejected the evidence of the Beneficiary's witness, one Ashok
Ramkrishna Nimkarde , Surveyor (Exh.-85) on the ground that he did
not file any report or notes about the plantation existing on the acquired
land and that he had exceeded his brief which was confined only to
measuring the land being a Surveyor and not extending to giving an
opinion about the quality and potentiality of the land. Thus, the
Reference Court considered that the acquired land, which was in the
vicinity of the National Highway and which was not far away from the
lands involved in the sale instances had a commercial and industrial
potential and therefore, it deserved the assessment of a higher value.
While evaluating the market price that the acquired land was likely to
fetch, the Reference Court considered that rate of Rs.50,000/- per acre
which comes to about Rs.1,25,000/- per hectare as the proper rate, as
against the rate of land involved in sale instance vide Exh.-59 which was
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of about Rs.1,95,000/- per hectare and the rate of land in another sale
instance vide Exh.-72 which was of about Rs.90,000/- per hectare. The
Reference Court gave no reasons as to how the rate of Rs.1,25,000/- per
hectare was fixed by it. The only reason, if it is to be called so, I could
notice is that the Reference Court in its mind did some "(+) and (-)"
calculations in order to arrive at such market value of the land, as
observed in paragraph 22 of the impugned judgment and order. So, now
it would be the job of this Court to make an attempt to assess the market
value of the acquired land in a just and fair manner by screening the
evidence available on record.
10. The claimants have placed heavy reliance upon the sale
instances and Exhs.-59 and 72. The sale-deed at Exh.-59 is of 7.9.1989
and its agreement to sale was executed between the parties on 5.12.1988
which is at Exh.-62. In this agreement to sale itself the consideration or
price of the land agreed to be purchased has been indicated and when
converted into per hectare value, it comes to about Rs.1,95,000/- per
hectare. Notification under Section 1(3) was published in Government
Gazette on 27.10.1988 and its effect was given from 28 th February, 1988.
So, from 27.10.1988 and onwards, it was well known that the land
involved in this appeal and the surrounding lands were under acquisition
for the public purpose. Possession of such knowledge on the part of the
buyer of the land in Exh.-59 has been admitted by the claimants' second
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witness Deorao Doifode, who was the Secretary of Shikshak
Gruhanirman Sahakari Sanstha Limited, which purchased Exh.-59 land.
So, the sale instance vide Exh.-59 would have to be taken as a post
notification sale instance and therefore, its relevance would have to be
determined by considering whether or not the rate reflected in this sale-
deed is true and genuine, un-influenced in any manner by publication of
Section 1(3) of MID Act notification. Then, situation of this land, having
been admittedly situated about 1 Km. away from the acquired land and
surrounded by residential houses, unlike the acquired land would also
have to be examined from the view point of its comparability with the
acquired land.
11. In the case of Goa Industrial Development Corporation vs.
Maria Tereza N. Quadros e Cruz Carvotta and another, reported in
2016(3) ALL MR 810, learned Single Judge of this Court has held that
even a post notification sale instance could be found to be relevant, in a
given case if the facts and circumstances brought on record show that
there has been a very small gap of a five months between publication of
the notification and the sale transaction and there are no circumstances
present on record showing that the purchaser was motivated to pay
higher price due to its development prospects. Relying on this judgment
and the evidence available on record, learned counsel for the claimants
would submit that in the present case, there being no evidence to show
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that the consideration of the sale-deed at Exh.-59 was influenced by the
development prospects of the land, and the gap between the notification
and the agreement to sale being of just about a month or so, the sale
instance of Exh.-59 must form the basis for evaluating the market value
of the acquired land. He also submits that in any case, the sale deed at
Exh.-72 being of the date of 16.3.1988 was a pre-notification sale
instance and would hold out as a reasonable guide for assessing the true
market value of the acquired land. Shri M.M. Agnihotri, learned counsel,
however, has expressed his disagreement in this regard and in order to
substantiate the same, he has taken me through the admissions given by
the witnesses of the claimants.
12. On going through the evidence available on record, I do not
find any admission or any circumstance reasonably indicating that the
consideration for sale of the land in Exh.-59 was agreed between the
parties quite on the higher side because of the development prospects
that the land showed following publication of Section 1(3) of MID Act
notification on 27.10.1988 and so I find substance in the argument of
learned counsel for the claimants made in this regard. But, that would
not solve our difficulty. We also have to see that the land of Exh.-59 sale
instance is a comparable land, offering reliable guidance for determining
the market value of the acquired land. On this score, I must say, the
evidence brought on record by the claimants fails, as rightly submitted by
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the learned counsel for the Beneficiary.
13. Deceased claimant - Daulat Warghane, in his evidence has
admitted that the acquired land was situated about 1 Km. away from the
land involved in the sale instance at Exh.-59. The claimants' second
witness, Deorao Doifode, Secretary of the Society which purchased the
land in Exh.-59, has admitted in his cross-examination taken on behalf of
the appellant that before agreeing to purchase the land, he had surveyed
the entire area of village Rengapar and having been satisfied about better
location of the land that his Society preferred to purchase that land only.
He also admits that there were some houses already in existence
surrounding the land of Exh.-59 sale instance. As against this evidence,
there is no evidence adduced by the claimants that surrounding the
acquired land there were in existence some houses also, and that their
land had a better prospect of being developed into a residential zone.
The cumulative effect of these admissions and such evidence would be
that the land involved in sale instance vide Exh.-59 is not the land
comparable in any respect with the acquired land. The land involved in
Exh.-59 had a better location as well as better potential for there were
already in existence some houses surrounding it. Then, the map of
village Rengapar filed on record by the appellant also does not show that
the acquired land was abutting or just adjacent to National Highway
No.7 and very near to Butibori Railway Station. This would only fortify
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the conclusion made by me that the acquired land promised no
development or commercial potential, unlike the land involved in the
sale instance at Exh.-59. So, the sale instance Exh.,-59 could be of no
assistance to us in the present case.
14. Now, coming to the sale instance vide Exh.-72, a
pre-notification one, having been executed about 7 and ½ months prior
to Section 1(3) of MID Act notification, I would say that this is the only
sale instance available in this record, which could be put to use
substantially, if not fully for determining the true market value of the
land. This sale-deed is regarding the sale of an agricultural land, which
has been stated by another witness, Namdeo Narayan Bhandakkar,
purchaser of this land, to be a dry crop land of inferior quality. On the
other hand, the acquired land had irrigation facilities and had a better
soil quality. There were no houses surrounding the land involved in
Exh.-72 just as the acquired land. The land in Exh.-72 was also not
situated adjacent to the National Highway. There being no other
evidence available on record and there being many similarities between
the acquired land and the land in the sale-deed vide Exh.-72, this sale
instance could be taken as a reference point for determining the true
market value of the land. Added to this is the evidentiary value of
evidence of the Surveyor (Exh.-85) examined by the Beneficiary which
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offers no guidance worth mentioning and has been rightly rejected by the
Reference Court. So, Exh.-72 sale instance can be taken as the sole
indicator of market price of the lands in it's vicinity.
15. The per hectare price reflected in the sale deed at Exh.-72
was of Rs.90,000/-. Considering the fact that admittedly this land was
situated about ½ Km. away from the acquired land and also considering
the fact that the acquired land was of better quality, I am of the view that
the rate reflected in the sale instance vide Exh.-72 could be safely taken
to be the rate a land with better quality but situated about half a
kilometer away from it, which is the acquired land, could have fetched in
a reasonable manner at the time of publication of Section 1(3) of MID
Act notification. Had the acquired land been situated adjacent to the
Exh.-72 land, I would have added about 10% more to the rate of Exh.-72
land on account of better quality of the acquired land, which is not the
case here.
16. At this juncture, I would like to deal with the submission of
the learned counsel for the claimants that while determining the market
value of the lands having commercial potential 1/3 rd , deduction must be
made towards the area to be used for roads, drains and other facilities,
subject to certain variations depending upon its nature, location, extent
and development around the area, which is the law laid down by the
Hon'ble Apex Court in the case of Major Gen. Kapil Mehra and others
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vs. Union of India and another, reported in 2014 ALL SCR 3728. In
my humble opinion, this principle of law would have no application to
the facts of the present case for the reason that the acquired land was an
agricultural land and based upon the evidence available on record, has
not been treated to be a land having immense commercial potential.
Then, the comparable sale instance (Exh.-72) was not of small developed
plot but was of agricultural land. The argument of learned counsel for
the claimants is, therefore, rejected.
17. Thus, I find that the true market value of the acquired land in
the present case could not have been of Rs.1,25,000/- per hectare but
could have been at the most of Rs.90,000/- per hectare. I further find
that this is the rate i.e. rate of Rs.90,000/- per hectare, at which
compensation must be given to the claimants for their acquired land. In
addition to above, I am also of the opinion that there being available on
record evidence regarding existence of mango trees, jambhul trees and
other trees and no evidence about incurring of special cost on
construction or maintenance of dhura, I am of the view that
compensation granted by the Reference Court of Rs.7,000/-, Rs.3,000/-
and Rs.3,000/- for mango, jambhul and other trees respectively deserves
to be confirmed and the compensation granted for dhura at Rs.5,000/-
deserves to be quashed and set aside.
18. So calculated, the claimants would be entitled to receive
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compensation of Rs.90,000/- per hectare for their acquired land and
further compensation of Rs.13,000/- for mango trees, jambhul trees and
other trees only and not for dhura etc. together with all statutory benefits
at same rate as are granted by the Reference Court, but on the amount of
compensation so determined here under. The point is answered
accordingly.
19. The appeal is partly allowed.
20. The Cross-objection is dismissed.
21. It is declared that the claimants are entitled to receive
compensation at the rate of Rs.90,000/- per hectare for their acquired
land and also compensation of Rs.13,000/- for the mango, jambhul and
other trees and same shall be paid to them together with all statutory
benefits at same rates as are granted by the Reference Court, by the
appellant.
22. The impugned judgment and order stand modified in the
above terms.
23. Parties to bear their own costs.
JUDGE
wadode
