Bombay High Court
Syed Izharul Islam Talib ... vs State Of Mah.Thr.Collector Akola ... on 7 September, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.580 OF 2005
Sayed Ale Mohiuddin Hadi Naqshabandi,
(since deceased through legal heirs)
1. Syed Izharul Islam Talib Nawshbandi,
s/o. Syed Nurul Islam Aziz Naqshabandi,
Aged about 37 years,
Sajjada Nashim, Khanqah Naqshbandi, Balapur,
(PRT No. B-Akola)
Appeal is abated
against appellant No.2
2. Smt. Hidayat Fatema Hadi Begum,
by Court's order Widow of S.A.M. Hadi Naqshbandi
dt.9.2.2015. Aged about 80 years,
Occupation : Household affairs.
3. Syed Zahirul Islam Zaki Naqshbandi,
s/o. Syed Nurul Islam Aziz Naqshbandi.
Aged about 34 years.
4. Syed Zahurul Islam Taiha Naqshbandi,
s/o. Syed Nurul Islam Aziz Naqshbandi,
Aged about 33 years.
5. Syed Mazharul Islam Zubair Naqshbandi,
Syed Nurul Islam Aziz Naqshbandi,
Aged about 31 years.
All agriculturists,
Residents of Khanqaha Naqshbandia,
Balapur, Ta. Balapur, Distt. Akola. : APPELLANTS
...VERSUS...
1. State of Maharashtra,
Through the Collector, Akola,
Tal and Distt. Akola.
2. Regional Officer,
Maharashtra Industrial Development
Corporation, Amravati Region,
Industrial Area, Amravati. : RESPONDENTS
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Shri Khajanchi h/f. Shri S.O. Ahmed, Advocate for the Appellants.
Smt. M.S. Naik, Assistant Government Pleader for Respondent No.1.
Shri M.M. Agnihotri, Advocate for the Respondent No.2.
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CORAM : S.B. SHUKRE, J.
th
DATE : 7
SEPTEMBER, 2017.
ORAL JUDGMENT :
1. This appeal has been preferred against the judgment and
order dated 20th June, 2005, delivered by 3rd Ad-hoc Additional District
Judge, Akola in Land Acquisition Case No.24/1995.
2. 10 hectare agricultural land from out of 14 hectare and 53 R
of the agricultural land, bearing Survey No.1 belonging to the appellant
was acquired for public purposes or to be precise for purposes of
development of industrial area near town Balapur, District Akola. There
was acquisition done by the State in respect of a smaller piece of land
bearing Survey No.1 belonging to the appellants in the year 1972 and at
that time, the market value of that portion of the land was determined by
the State to be at Rs.12,500/- per hectare. But, in the acquisition made
subsequently in the instant case, which was in the year 1989, the State
determined the market value of the acquired land only at Rs.8,000/- per
hectare. The appellants were obviously aggrieved by such determination
of the market value of the land and therefore, the appellants preferred
reference application under Section 34 of the Maharashtra Industrial
Development Act, which was referred to the Reference Court for being
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decided in accordance with law. By this application, enhanced
compensation at the rate of Rs.5,00,000/- per hectare was demanded by
the appellants. This claim was resisted by the respondents. On merits of
the case, Reference Court found that the determination of the market
value of the acquired land was on the lower side and considering the
evidence available on record, the Reference Court determined the same
to be at Rs.17,000/- per hectare. The appellants were still not satisfied
and therefore, they preferred the present appeal and that is how the
claimants are now before this Court.
3. I have heard learned counsel for the appellants and learned
counsel for the respondents. I have gone through the record of the case
including the impugned award.
4. Now, the only point which arises for my determination is :
Whether the compensation granted by the Reference
Court is just and proper ?
5. Learned counsel for the appellants has submitted that the
Reference Court has not properly appreciated the evidence on record and
has committed a grave error of law in ignoring the sale instances vide
Exhs.-38 to 42 in the instant case. He also submits that Section 32(2) of
the Maharashtra Industrial Development Act, 1961 (for short, "MID Act")
notification, which is equivalent to Section 4 Land Acquisition Act
notification (for short "LA Act") was published on 30 th August, 1991 and
this was the date which should have been considered as relevant for the
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purpose of determination of the true market value of the acquired land.
He submits that all the sale instances which were produced on record by
the appellants and the sale instances which were included in
consideration by the Land Acquisition Officer, by virtue of date 30 th
August, 1991, became relevant and if they are now considered, one
would find that the market value of the acquired land, at the relevant
time, was much more than what has been found by the Reference Court.
He submits that in any case, with smaller portion of the same land
having been evaluated at the rate of Rs.12,500/- per hectare in the year
1972, the acquired land deserved evaluation by addition of 10% of
Rs.12,500/- for every year from 1972 onwards till the year 1991 and by
such addition, the market value of the acquired land would have come to
about Rs.45,000/- to Rs.50,000/- per hectare.
6. Shri M.M. Agnihotri, learned counsel for the respondent No.2
submits that there is no need for making any interferences with the
impugned award as no evidence of the sale instance of comparable lands
has been tendered by the appellants and even the evidence regarding
escalation in prices of the land in the vicinity of the acquired land has not
been produced on record by the appellants and, therefore, no addition at
the rate of 10% p.a. to the rate of Rs.12,500/- can be made while
determining the true market value of the acquired land.
7. About the argument of learned counsel for appellants that it
is the date of Section 32(2) MID Act, notification, which is relevant for
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determining true market value of acquired land, there can be no quarrel,
for, it is equivalent to Section 4 LA Act notification. But, the evidence
about sale-instances being what it is, I must say, this date of Section
32(2) MID Act notification, 30th August, 1991, hardly makes any
difference for them.
8. The evidence regarding the sale instances of the relevant
period is in the nature of certified copies of the index No.2, which is a
record maintained by the office of the Sub-Registrar. These documents
are not the certified copies of the sale-deeds. They only indicate the area
of the land sold, the sale consideration and parties to the sale transaction
and nothing more. Such nature of evidence one would agree, makes
comparison between the lands involved in these transactions and the
acquired land very difficult. From such evidence, one is not able to
ascertain the nature of lands involved in the sale instances, their
potentiality and functionality and importantly their distance from the
acquired land. So, the lands involved in Exhs.-38 to 42, without there
being any supportive evidence, would be hardly of any use for making
useful comparison between them and the acquired land and
consequently, these transactions cannot be considered for determination
of the market value of the acquired land, unless there is some other
evidence produced on record by the appellants. Unfortunately, no such
evidence has been adduced by the appellants.
9. The appellants have also not stated in clear terms the
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distance between acquired land and the land represented by the
documents vide Exhs.-38 to 42. The appellants through the evidence of
PW 1, only stated that these lands in Exhs.38 to 42 were situated about 3
to 4 fields away from the acquired land. Such a statement does not lead
us anywhere as nobody knows the size of each of the agricultural fields
that stands in between these lands and the acquired land. On the
contrary, there is a suggestion given to PW 1 that these lands were
situated about 7 to 8 Kms. away from the acquired land. Of course this
suggestion has been denied by the appellants. But, the fact remains that
situation of these lands in Exhs.-38 to 42 has been disputed by the
respondents and therefore, the burden to prove their situation,
comparability, potential and functionality was upon the appellants,
which the appellants have not discharged in this case. So, the sale
instances referred to in documents vide Exhs.-38 to 42 cannot be
considered for any purpose.
10. The Reference Court, however, has rejected the sale
instances for different reasons. According to learned counsel for the
appellants, those reasons are not borne out from the record. That may
be true. But giving of wrong reasons for excluding such evidence from
out of consideration of the Court would not make the evidence as
admissible and reliable. If there are some reasons, not weighed with the
mind of the lower Court, this Court, as a court of appeal on facts and
law, would be under an obligation of law to consider those reasons. This
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is what I have done in the present case. Therefore, the argument of
learned counsel for the appellants made in this regard cannot be
accepted and is rejected.
11. Once we take out of consideration the sale transactions
reflected in documents vide Exhs.-38 to 42, what remains is the other
material available on record and this other material, I must say, does not
help establish the entitlement of the appellants to enhancement in
compensation. In the award passed by the Land Acquisition Officer there
is a consideration given to 6 sale instances and in the process, the Land
Acquisition Officer found only one sale instance as relevant and further
found the remaining sale instances as not establishing the similarity
between the lands, so essential for accepting the rates of the lands
mentioned in those sale instances, as representing their true market
value. In this regard, learned counsel for the appellants has invited my
attention to the sale instances at Sr.Nos.4 and 5 in the award, which
were of 19.4.1989. These sale instances indicated the price of the lands
to be at Rs.34,482/- per hectare. Learned counsel for the appellants
submits that these sale instances being of April 1989, much before
Section 32(2) MID Act notification was published, it was published on
30st August, 1991, were relevant and there was no reason for the Land
Acquisition Officer to have rejected them. He submits that just because
the lands in those sale instances were acquired for the purposes of
storing of wastes, those lands could not have been excluded from
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consideration by the Land Acquisition Officer. I would have accepted
this argument had the appellants posed any challenge to the exclusion of
these sale instances from the consideration by the Land Acquisition
Officer, DW 1 Tejusing Wasram Pawar, who examined himself as the
respondent's witness and was cross-examined by learned counsel for the
appellants. If one takes a look at his cross-examination, one would
immediately find that not a single question has been put to this witness
taking exception to the reasons stated by him in the award for rejecting
the sale instances at Sr. Nos.4 and 5 in the award vide Exh.-50.
Therefore, these sale instances now cannot be considered by this Court.
12. Learned counsel for the appellants also submits that it has
been established by the appellants that in the year 1972, the State had
found market value of a smaller portion of the same land from out of
Survey No.1 when it was acquired for the purposes of a bye-pass road to
be at Rs.12,500/-. He further submits that it was reasonable for the
appellants to expect higher evaluation of another portion of the land
from out of the same survey number acquired after 19 years and such
enhancement could have been carried out in a scientific manner by
making addition of 10% of Rs.12,500/- for every year after 1972 till the
year 1991. Learned counsel for the respondent submits that such
escalation in price by adopting the method of addition to be made per
year at the rate of 10% could have been there, had the appellants
adduced some evidence to show that the acquired land or the lands in
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the vicinity of the acquired land enjoyed the prospect of escalation in the
price. He places his reliance in this regard upon the case of General
Manager, Oil and Natural Gas Corporation Limited vs. Rameshbhai
Jivanbhai Patel and another, reported in (2008) 14 SCC 745.
13. The evidence available on record indeed shows that a smaller
piece of land admeasuring 1 hectare from out of same survey number
was assigned the market value at Rs.12,500/- per hectare by the State
and that it was also accepted by the appellants. It would be quite natural
for such a land owner to think that when another portion of the same
survey number is acquired about two decades later, higher compensation
is paid to him by the State by assessing the value of the land at higher
rate. In the instant case, such expectation of the appellants has been
belied by the State. While in the year 1972 the State assessed the value
of the land at Rs.12,500/- per hectare and about 19 years later, the State
assessed value of another portion of the same land at lower rate or to be
precise at the rate of Rs.8,000/- per hectare.
14. Ordinarily, it has been seen in India that for last several
decades, the land prices have not witnessed any reversal in their prices in
the sense that the land prices have not fallen down rather, they have
increased always as the years passed by. The Reference Court has also
taken a judicial note of this fact and accordingly considered the
escalation in price of land over a period of time and by approximation it
enhanced the market value of the land from Rs.8,000/- to Rs.17,000/-
J-fa580.05.odt 10/12
per hectare. Such fixation of the market value of the land has been done
by the Reference Court by considering the evidence available on record.
This evidence, of course was in general terms in the sense that the
acquired land was situated near a highway, a few developmental
activities were going on in the vicinity of the acquired land the details of
which were not known and the acquired land was also not a far away
land from Balapur town, with its distance of about 2 to 3 Kms from
Balapur town, and so the Reference Court found that the rate of
Rs.17,000/- per hectare of the acquired land would be fairly true
representative of the prevailing price of the land. Leaned counsel for the
appellants has objection in this approach of the Reference Court.
According to him, instead of such broad approximation, Reference Court
ought to have taken recourse to addition method for determining correct
market value of the land. He submits that addition of 10% of
Rs.12,500/- for every year that went by after 1972 till Section 32(2) of
MID Act notification was published in the official gazette should have
been made to 1972 market value of the land. But, for making such
addition, as held in the case of Rameshbhai (supra), it is necessary that
there is some evidence regarding ordinary developments taking place in
the vicinity of the acquired land or regular increase in prices in the area
where the acquired land is situated. As stated earlier, in the instant case,
there is only general evidence about the situation of the land. The
appellants have not tendered any evidence about particular
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developmental activities that were going on in and around the acquired
land. So, I do not think that such addition at the rate of 10% for 19
years can be made in the instant case.
15. I am also supported in this conclusion by the other evidence
available on record. This evidence is in the nature of award of the Land
Acquisition Officer vide Exh.-50. In this award, 6 sale instances were
under consideration of the Land Acquisition Officer and if one takes a
look at them, one would find that there is not a single sale instance
therein, in which the sale consideration is equal to or somewhat near to
the price calculated by making addition of 10% of Rs.12,500/- for every
year that went by after the year 1972. The Land Acquisition Officer
considered as relevant the sale instance dated 9.4.1985 and in this sale
instance, the price of the land was taken to be at Rs.5,085/- per hectare.
Even in the sale instances dated 19.4.1989 at Sr. Nos.4 and 5 considered
and not accepted as relevant by the Land Acquisition Officer, such high
escalation in prices is not reflected. These prices reflected in all these sale
instances are only an indication of the fact that even after about 13 to 17
years from the year 1972, there has not been much escalation in price of
the land in the area where the acquired land is situate. Therefore,
enhancement in compensation made by the Reference Court by resorting
to the method of approximation, in my view, is correct and no fault with
the same could be found. It cannot be said that the compensation given
to the appellants is unjust and unfair. There is no merit in the appeal.
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The point is answered accordingly.
16. The appeal stands dismissed.
17. The parties to bear their own costs.
JUDGE
okMksns
