Bombay High Court
The State Of Maharashtra And ... vs Ashok Sidramappa Yenegure Thr ... on 5 January, 2018
Bench: V.K. Jadhav
1 FIRST APPEAL 2944.2013.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
...
FIRST APPEAL NO. 2944 OF 2013
Ashok Sidramappa Yenegure,
age 65 yrs, Occ. Pensioner,
R/o Jevali, Tq. Lohara,
Dist. Osmanabad. ...appellant...
(Orig. Claimant)
VERSUS
1. The State of Maharashtra,
Through District Collector,
Osmanabad.
2. The Special Land Acquisition Officer,
(P.T. & M.I.W.) No.1, Osmanabad.
...Respondents...
...
Advocate for Appellant : Mr Yenegure Apparao
A.G.P. for Respondents: Mr B V Virdhe
Advocate for Respondent 1 : Mr S G Bhalerao
(caveator in FA 3413/2015)
...
WITH
FIRST APPEAL NO. 3413 OF 2015
1. The State of Maharashtra,
Through The Collector, Osmanabad.
2. The Special Land Acquisition Officer,
(P.T. & M.I.W.) No.1, Osmanabad.
...Appellants...
(Orig respondents)
VERSUS
Ashok Sidramappa Yenegure,
age 40 yrs, Occ. Service, now
Pensioner, Through Power of
Attorney Holder :-
::: Uploaded on - 08/01/2018 ::: Downloaded on - 10/01/2018 01:28:30 :::
2 FIRST APPEAL 2944.2013.odt
Sidramappa Apparao Yenegure,
age 65 years, Occ. Agriculturist,
R/o Jevli, Tq. Omerga, District
Osmanabad. ....Respondent...
(Ori claimant)
...
Mr B V Virdhe A.G.P. for appellant State.
Mr. S G Bhalerao Advocate for Respondent No.1.
...
CORAM : V.K. JADHAV, J.
...
Reserved on : December 12, 2017
Pronounced on : January 05, 2018.
...
JUDGMENT :-
1. Being aggrieved by the judgment and award
passed by the Jt. Civil Judge S.D., Omerga, dated
6.4.2013 in LAR No.533/2005 (old No.383/1999), the
original claimant has preferred First appeal
No.2944/2013 and the respondents/State has preferred
First Appeal No.3413/2015.
2. Brief facts, giving rise to the present appeals, are
as follows :-
a] The land Block No.7, admeasuring 4H 69R
situated at village Jevali, Tq.Omerga, District
Osmanabad, owned by the claimant is acquired by the
Respondents Government for the purpose of
3 FIRST APPEAL 2944.2013.odt
rehabilitation of earthquake affected persons of village
Jevali. Section 4 notification of the Land Acquisition Act
is published in the official gazette on 8.8.1996. In
response to the notice under section 9 of the Act, the
claimant has submitted his claim before the Land
Acquisition Officer claiming compensation of
Rs.15,000/- per guntha and separate compensation for
the structure. The L.A.O. by award dated 6.12.1997
determined the compensation and awarded the
compensation of Rs.21,000/- per hector. Being
aggrieved and dissatisfied by the award passed by LAO,
the claimant has filed LAR No.533/2005 for the
compensation of the acquired land at the enhanced rate.
According to the claimant, the village Jewali is having
amenities like village, tar roads, colleges, offices, etc.
and it is adjacent to National High Way No.9. The
acquired land is situated just adjacent to Jewali-Makani
and Jewali-Lohara Road. It has been contended by the
claimant in the reference petition that, the quarters of
the MSEB employees, teacher's colony, market school
are also situated near the acquired land. There is also
one industry after one land of the acquired land.
4 FIRST APPEAL 2944.2013.odt
Therefore, the claimant was intending to convert the
acquired land for non agricultural purpose as acquired
land was having N.A. potentiality. Even, the adjacent
land owners have already converted their lands to NA
use and also sold the same. The claimant has also
entered into an agreement of sale of the plots to other
persons from the acquired land. Claimant had also filed
N.A. proceedings before the Tahsildar, however, no
decision was taken on his application seeking N.A.
permission with regard to some portion of the acquired
land. According to the claimant, the L.A.O. has granted
the compensation at a meager rate without considering
the N.A. potentiality of the land.
b] Respondent/State by filing written statement has
strongly resisted the said reference petition on the
ground that, there was no facilities in the vicinity of the
land acquired as stated by the claimant. There is no NA
potentiality to the acquired land. The claimant has
failed to reply the notice under section 9 of the Act and
also failed to withdraw the amount of compensation
under protest. Claim petition is not filed within
5 FIRST APPEAL 2944.2013.odt
limitation. It has been contended that, L.A.O. has
awarded just and reasonable compensation by
considering the market value of the lands in the vicinity
of the acquired land.
c] The claimant has adduced oral and documentary
evidence in support of his contentions. Respondent-
State has not adduced any evidence. The learned Jt.
Civil Judge S.D. Omerga by its impugned judgment and
order dated 6.4.2013 partly allowed reference petition
and directed the respondents to pay the claimant
compensation of Rs.5,000/- per Aar towards enhanced
compensation against the land acquired after deducting
the amount already paid. The learned Judge of the Trial
court has also granted all admissible statutory benefits
to the claimant.
d] Being aggrieved and dissatisfied with the Award
passed by the Reference Court, the claimant has
preferred First Appeal No.2944/2013 and the
Respondent-State has also preferred the appeal bearing
First Appeal No.3413/2015. Hence, both these appeals
6 FIRST APPEAL 2944.2013.odt
are taken together and decided by this common
judgment.
3. Learned counsel for the appellant submits that,
market price of the acquired land was Rs.15,000/- to
Rs.20,000/- Gunthas or Rs.15/- to Rs.20/- per square
feet on the date of notice under section 4 of the Land
Acquisition Act. Learned counsel submits that, village
Jewali is a big village in Omerga Taluka having
population of more than 10,000 to 15,000 and there was
demand from villagers to grant status of Taluka Place to
village Jewali. Facilities like tar road, school, colleges,
I.T.I. College, MSEB Sub Stations, Primary health
center, Veterinary Hospital, Water Supply Office,
Telephone Exchange, Marketing Federation, Banks, Saw
Mills, Oil Mills, Hotels, small scale industries, post
office, Khadi Gramodyog center, Government Offices etc
are in existence at village Jevali. Moreover, there is big
industrial unit of production of submersible pump set.
Village jevali is adjacent to National High Way No.9. So
also Akkalkot-Nagpur tar road is passing from this
village and there was and is acute shortage of
7 FIRST APPEAL 2944.2013.odt
accommodation at village Jewali. Due to earthquake in
the year 1993, 90% of the houses of the villager were
collapsed at Jevali and, as such nobody was willing to
reside in the old Gaonthan. There is a river towards
south side of village. Therefore, except land of the
claimant which is situated towards south-north corner
of old village, there was no suitable land available for
residential and commercial purpose. So, there was
high demand of land and plots for residential and
commercial purpose. Learned counsel submits that,
acquired land is having N.A. potential value and also
useful for construction purpose. The adjacent land
holders of the acquired land i.e. land Gat no.4 Shri
Ramesh Sakhare and one Mhadabai Karbhari who is
owner of land gat no.3 have converted the lands in NA
use. There was heavy demand for residential plots from
the acquired land and as such, the claimant had agreed
to sell some plots to the villagers. Claimant had
executed agreement of sale in the year 1992 and 1994 of
his land gat no.7 and out of the land S.No.8, some
portion was converted into NA plots. On 2.2.1991
claimant has sold 3 gunthas of land for a consideration
8 FIRST APPEAL 2944.2013.odt
of amount of Rs.30,000/-. He has also sold one another
plot to one Allahasani Tamboli for a consideration of
Rs.20,000/- and agreement of sale came to be executed
in writing on 3.3.1994. Even the claimant has also filed
a proposal to Tahsildar on 19.1.1995 seeking permission
for conversion of the land for NA purpose alongwith the
map and other necessary documents. Said proposal
was not specifically rejected. Learned counsel submits
that, in view of the provisions of the Maharashtra Land
Revenue code, such a permission shall be deemed to
have been granted for proposed use of land for non
agricultural purposes, if not rejected specifically within
45 days. N.A use of the land gat no.3 which was known
as land Sy.No.3/4 came to be sanctioned by the
Revenue authority on 25.9.1984. The land admeasuring
1H 88R out of the land gat no.3 came to be converted
for NA purpose accordingly. Even, the owner Mhadabai
Ankush Karbhari has sold out some plots and those
plots are at a distance of 1000 feet away from the
acquired land. Learned counsel further submits that,
with reference to section 4 notification of the acquired
land which came to be published on 8.8.1996, the
9 FIRST APPEAL 2944.2013.odt
claimant has relied upon the sale deed exh.52 dated
22.12.1989, sale deed exh.53 executed on 20.3.1993 and
sale deed exh.54 executed on 9.12.1997 (as per
agreement of 3.7.1996). These sale instances are from
the same village, however, reference court has not
considered the same. The learned Judge of the
Reference Court in paragraph no.18 of the impugned
judgment and award accepted the N.A. potentiality of
the acquired land in unequivocal words. Learned
counsel submits that, however, reference court has
erroneously held that, claimant will be entitled to the
compensation of 50 percent of the total area being rest
of the area will be utilized for the developments like
approach road to any main road, the sub roads and
then for the open belts. Learned counsel submits that,
even though, reference court has considered the non
agriculture potentiality of the acquired land, discarded
the sale instances for the reason that, those are the
small piece of land and which were under development.
Reference Court has thus awarded compensation @
Rs.5,000/- per gunthas to the whole acquired land.
10 FIRST APPEAL 2944.2013.odt
4. The learned counsel for the appellant in order to
substantiate his contentions placed his reliance on
following cases :-
1. Meharwal Khewaji Trust (Regd) and
others Vs. State of Punjab and others reported
in 2012 (4) ALL MR 470 (S.C.).
2. Tejumal Bhojwani and others Vs. State of
U.P. Reported in AIR 2003 Supreme Court
3791.
5. Learned A.G.P. submits that, the acquired land is
a Jirayat land and the same is also admitted by the
claimant in his cross examination. Acquired lands are
the inferior quality and as on the date of publication of
the notification under section 4, the use of the acquired
land was only for agriculture purpose. The learned AGP
submits that, acquired lands are the agricultural lands
of inferior quality having no potentiality of NA use.
Learned AGP submits that, the Reference Court while
enhancing the market value from Rs.210/- per R to
Rs.5,000/- per Aar at one hand discarded the sale
instances and reached to the imaginary rate of
Rs.5,000/- without having any basis. Learned AGP
submits that, sale instances relied upon by the
11 FIRST APPEAL 2944.2013.odt
appellant are of pieces of small plots and under
development. The claimant is not entitled for the same
rate. The said sale instances cannot be relied upon for
comparison and to find out the market price of the
acquired land which is admeasuring 4 Hector 69R. The
reference court has also observed that sale instances
relied upon by the claimant are of developed land and
acquired land is undeveloped land. The claimant has
not produced any map on record to compare the
acquired land with the land under sale instances. Apart
from the sale instances, no other evidence placed before
the Reference Court in support of the demand for
enhancement. The learned AGP submits that,
compensation as awarded by the reference court at the
enhanced rate is totally illegal and against the settled
principles of law. The learned AGP submits that, on
perusal of the sale deed exh.52, it appears that though
it was executed in the year 1989, the land under the
sale instances exh.52 was sold for a consideration
amount of Rs.6,000/-. On perusal of the sale instance
exh.53, though consideration amount shown as
Rs.30,000/-, as per boundaries shown in the sale
12 FIRST APPEAL 2944.2013.odt
instance Exh.53, purchasers land is adjacent to the
land under sale instance and as such, the land under
sale instance has been sold at a higher price. It appears
from the recitals of the sale instance Exh.53 that
Rs.10,000/- only paid before the Registrar and for the
remaining amount of consideration, no details are
mentioned. It thus doubtful that plot under sale
instance has been sold for a consideration amount of
Rs.30,000/-. The learned AGP submits that, so far as
sale instance exh.54 is concerned, sale deed came to be
executed after section 4 notification was published in
the official gazette. Learned A.G.P. submits that, sale
instance Exh.52, 53 and 54 cannot be considered for
the reason that sale instances are not within reasonable
time of the notification under section 4 published in
respect of the acquired lands. The transactions are not
bonafide one and there is no evidence that, these lands
possesses similar advantages as compared to the
acquired lands. Learned AGP further submits that, the
application filed for NA permission is of dated 19.1.1995
and bare perusal of the same clearly reflects that,
permission is sought only for land admeasuring 1
13 FIRST APPEAL 2944.2013.odt
Hector when total land acquired is 4H 69R. There is no
inward number in respect of the said application filed
for NA permission. It is a suspicious document. This
record has been created after thought. Learned AGP
submits that, claimant has submitted a lay out plan of
the year 1992 at exh.45 before the reference court for
claiming compensation at the enhanced rate, however,
though lay out plan was prepared in the year 1992,
application seeking NA permission came to be filed in
the year 1995. There was no permission for preparing a
lay out plan. The possession of the acquired land has
been taken in the year 1996.
6. Learned AGP submits that, there is no justification
in the enhanced rate awarded by the reference court.
Though reference court has come to the conclusion that
the acquired land is the agricultural land at the time of
section 4 notification, awarded the compensation at the
enhanced imaginary rate of Rs.5,000/- per aar.
Learned AGP submits that, agreement to sale is not an
evidence for market value of the land. Learned AGP in
the alternate submits that, if N.A. potentiality of the
14 FIRST APPEAL 2944.2013.odt
land is considered by this Court, taking into
consideration the large extent of the land acquired,
appropriate deductions towards development costs
needs to be considered as 75%.
7. Learned AGP in order to substantiate his
contentions placed his reliance on following
judgments :-
1. Chimanlal Hargovinddas Vs. Special Land
Acquisition officer, Poona reported in 1988 AIR (SC)
1652.
2. Surat Singh Malli Vs. Union of India reported in
1996 (Supp.1)JT 336.
3. State of Maharashtra Vs. Ismile Abdul Gafur Patel
since deceased through his L.Rs. Maimuna Ismail
Patel and Others reported in 2006 (2) Mh.L.J. 323.
4. Special Land Acquisition Officer Vs. Sidappa
Omanna Tumari reported in 1995 AIR (SC) 840.
5. Karnataka Urban Water Supply and Drainage
Board, etc. Vs. K.S. Gangadharappa and Another,
etc. reported in (2009) 11 SCC 164.
6. Nawal Singh Vs. Union of India reported in (1995)
Suppl. 3 SCC 315.
7. Ranvir Singh Vs. Union of India reported in 2005
AIR (SC) 3467.
8. State of Maharashtra and Others Vs. Yashwant
Kahnu Shirsath reported in 2008 (3) AIR Bom R 61.
9. Ramanlal Deochand Shah and Another Vs. State of
Maharashtra and Another reported in 2013 (5) AIR
15 FIRST APPEAL 2944.2013.odt
Bom R 772.
10. G.M., O.N.G.C. Ltd. Vs. Sendhabhai Vastram Patel
reported in 2005 (7) JT 465. (2005) 6 SCC 454.
11. M.V.K. Gundarao Vs. Revenue Divisional Officer.
(Lao), Narasaraopet reported in 1996 AIR (SC) 3241.
12. Government of Goa, through Under Secretary
(Revenue) Secretariat, Panji Vs. Jagannath Vamon
Khalap (since deceased by his L.Rs.) reported in
1996 (3) All M.R. 507. (1996 (2) BCR 714)
13. Shaji Kuriakose Vs. Indian Oil Corporation Limited
reported in 2001 AIR (SC) 3341.
14. Deputy Collector and (S.D.O.) and Another Vs.
Diogo Piedade Inacio Falcao and Others reported in
2007 (1) AIR Bom R(NOC) 43. [2006 (2) BCR 769].
15. State of Maharashtra Vs. Digamber Bhimashankar
Tandale reported in 1996 (2) JT 528. [1996 (2) SCC
583].
16. Shaikh Rasheed Shaikh Latif (dead) through L.Rs.
Vs. State of Maharashtra and Others reported in
2003 B.C.I. 57.
17. Chandrashekar (D) by L.Rs. And others Vs. Land
Acquisition Officer and another reported in 2012
AIR (SC) 446.
18. Lal Chand Vs. Union of India and Another reported
in 2010 AIR (SC) 170.
19. MAJ. GEN. Kapil Mehra Vs. Union of India and
Another reported in 2014 AIR (SCW) 6086.
20. Ashrafi and Others Vs. State of Haryana and
Others reported in 2013 AIR (SC) 3654.
8. I have gone through the pleadings, evidence and
the impugned judgment and award passed by the
16 FIRST APPEAL 2944.2013.odt
Reference Court carefully. The land gat no.7
admeasuring 4H 69R owned by the claimant came to be
acquired by the State for the purpose of rehabilitation of
earthquake affected persons of village Jewali.
Notification under section 4 of the Land Acquisition act
was published on 8.8.1996. The claimant has deposed
before the reference court about population of village
Jewali and facilities like college, MSEB station, Primary
Health Center, veterinary hospital, tar road, telephone
exchange, banks, saw mills, hotels, small scale
industries, post office are available in the village.
Petitioner has also deposed that there is a big industrial
unit of production of submersible pump set. According
to the claimant village Jewali is adjacent to National
high way no.9. So also Akkalkot to Nagpur road passes
from village Jewali. The claimant has further clarified
that the acquired land is having N.A. value and useful
for construction purpose. It is the case of the claimant
that adjacent land holders of the acquired lands i.e.
land gat no.4 and 3 the owners thereof have already
converted their lands into NA use. Thus, the claimant
had also submitted an application seeking permission
17 FIRST APPEAL 2944.2013.odt
for conversion of the use of the acquired lands to the
extent of 1H and also agreed to sell some portion of the
lands for certain consideration amount to the claimants.
On careful perusal of the cross-examination of the
claimant, it appears that, State has not even denied the
statements made by the claimant on oath. It is also a
part of record that, in response to section 9 notice
issued by the Land Acquisition Officer, the claimant has
submitted his demand at exh.41 for the compensation
with the same contention seeking compensation for the
acquired lands by treating the acquired land as NA use.
It is also a part of record that, respondent State has not
adduced any oral or documentary evidence. Even, the
learned Judge of the trial court in paragraph no.18 of
the impugned judgment and award has observed that
extract of the record of rights exh.47 to exh.51 shows
that the land in the vicinity of the acquired land is
under residence. The learned judge of the reference
court has specifically observed that, the location of Lord
Basweshwar's trust, school clearly indicates the use of
the land in the vicinity of the acquired land is for NA
purpose. The acquired land was not used for any
18 FIRST APPEAL 2944.2013.odt
agriculture purpose. After major earthquake occurred
at village Jewali, after due inspections, this land owned
by the claimant choosed by the authorities for
rehabilitation of the earthquake affected persons. There
was a potential value for the entire acquired land as a
N.A. land.
9. The claimant has placed his reliance on the
following sale instances :-
Sr. Date of execution Area Rate per Sq. Feet.
No. Exhibit No. (Sq.Ft.) &
location.
1 Saledeed 22.12.1989 50 x 40 Rs.5/-
Exh.52 same village
2 Saledeed 22.3.1993 70 x 30 Consideration of
Exh.53 Rs.30,000/-
Rs.12.24/- per sq. feet
same village.
3 Saledeed 9.12.1997 80 x 50 Rs.7.14 per sq. feet.
Exh.54 (as per agreement location same village.
to sale dated
3.7.1996)
10. It has come in the evidence of the claimant
supported by 7/12 extract produced on record that land
gat no.1 which is owned by Basveshwar Devshthan
shows that said land was developed before the
acquisition. In land gat no.2, there is a college and
school and land gat no.3 owned by one Mhadabhai
19 FIRST APPEAL 2944.2013.odt
Karbhari is converted into NA purpose in the year 1984.
Said N.A. use of land gat no.3 is supported by mutation
entry no.1102 and further gat no.4 owned by one
Ramesh Sakhare also converted into NA use in the year
1994. On 22.12.1989 said Mhadabai had sold open plot
in S.No.3/4 plot no.20 admeasuring 50x40' for a
consideration amount of Rs.10,000/- to one Narmada
Motirao Varorkar. Copy of the said sale deed is marked
at exh.52. Saledeed exh.53 pertains to open plot
measuring 70x30 for a consideration amount of
Rs.30,000/-, however, in the boundaries towards
northern side, purchaser's house property is shown.
Though sale deed exh.54 came to be executed on
9.12.1997, the reference has been given to the agreement
executed on 3.7.1996 i.e. just one month prior to section
4 notification published in respect of the acquired land.
In the sale deed exh.54 open plot measuring 80 x 50 sq.
feet sold for a consideration of Rs.32,000/-. The sale
deed exh.52 came to be executed in the year 1989, i.e.
seven years prior to section 4 notification, sale deed
exh.53 came to be executed three years prior to section
4 notification and sale deed exh.54 as per agreement
20 FIRST APPEAL 2944.2013.odt
came to be executed one month prior to section 4
notification published in respect of the acquired land i.e.
on 8.8.1996. Even if appreciation @ 10% p.a. from the
date of execution of the aforesaid sale deed exh.52 and
53 are considered, till the section 4 notification
published in respect of the acquired land and so far as
sale deed exh.53 is considered, as purchaser had given
more price because his house property is situated
towards northern side of the plot under sale instance, it
would be just and appropriate to consider the market
price of the land converted into N.A. purpose in the
vicinity of the acquired land @ Rs.10/- per square feet.
11. In the case of Chandrashekhar (D) by L.Rs.
And others vs. Land Acquisition Officer and
another, reported in 2012 AIR (SC) 446, the Apex
Court has considered the determination of quantum of
deductions to be applied to the market value assessed
on the basis of exemplar sale transaction. The Supreme
Court in para 15 of the judgment has made the
following observations:-
"15. The present controversy calls for our determination on the
21 FIRST APPEAL 2944.2013.odt
quantum of the deductions to be applied, to the market value assessed
on the basis of the exemplar sale transaction, so as to ascertain the fair
compensation payable to the land loser. The only factual parameters
to be kept in mind are, the factual inferences drawn in the foregoing
paragraph. On the issue in hand, we shall endeavor to draw our
conclusions from past precedent. In the process of consideration
hereinafter, we have referred to all the judgments relied upon by the
learned counsel for the appellants, as well as, some recent judgments
on the issue concerned :-
(i) In Brigadier Sahib Singh Kalha & Ors. v. Amritsar Improvement
Trust & Ors., (1982) 1 SCC 419, this Court opined, that where a large
area of undeveloped land is acquired, provision has to be made for
providing minimum amenities of town-life. Accordingly it was held,
that a deduction of 20 percent of the total acquired land should be
made for land over which infrastructure has to be raised (space for
roads etc.). Apart from the aforesaid, it was also held, that the cost of
raising infrastructure itself (like roads, electricity, water, underground
drainage, etc.) need also to be taken into consideration. To cover the
cost component, for raising infrastructure, the Court held, that the
deduction to be applied would range between 20 percent to 33
percent. Commutatively viewed, it was held, that deductions would
range between 40 and 53 percent.
(ii) Noticing the determination rendered by this Court in Brigadier
Sahib Singh Kalha's case (supra), this Court in Administrator General
of West Bengal vs. Collector, Varanasi, (1988) 2 SCC 150, upheld
deduction of 40 percent (from the acquired land) as had been applied
by the High Court.
(iii) In Chimanlal Hargovinddas vs. Special Land Acquisition Officer,
Poona & Anr., (1988) 3 SCC 751, while referring to the factors which
ought to be taken into consideration while determining the market
value of acquired land, it was observed, that a smaller plot was within
the reach of many, whereas for a larger block of land there was
22 FIRST APPEAL 2944.2013.odt
implicit disadvantages. As a matter of illustration it was mentioned,
that a large block of land would first have to be developed by
preparing its lay out plan. Thereafter, it would require carving out
roads, leaving open spaces, plotting out smaller plots, waiting for
purchasers (during which the invested money would remain blocked).
Likewise, it was pointed out, that there would be other known hazards
of an entrepreneur. Based on the aforesaid likely disadvantages it was
held, that these factors could be discounted by making deductions by
way of allowance at an appropriate rate, ranging from 20 percent to
50 percent. These deductions, according to the Court, would account
for land required to be set apart for developmental activities. It was
also sought to be clarified, that the applied deduction would depend
on, whether the acquired land was rural or urban, whether building
activity was picking up or was stagnant, whether the waiting period
during which the capital would remain locked would be short or long;
and other like entrepreneurial hazards.
(iv) In Land Acquisition Officer Revenue Divisional Officer,
Chottor vs. L. Kamalamma (Smt.) Dead by LRs. & Ors., (1998) 2
SCC 385, this Court arrived at the conclusion, that a deduction of 40
percent as developmental cost from the market value determined by
the Reference Court would be just and proper for ascertaining the
compensation payable to the landowner.
(v) In Kasturi and others vs. State of Haryana, (2003) 1 SCC 354,
this court opined, that in respect of agricultural land or undeveloped
land which has potential value for housing or commercial purposes,
normally 1/3rd amount of compensation should be deducted,
depending upon the location, extent of expenditure involved for
development, the area required for roads and other civic amenities etc.
It was also opined, that appropriate deductions could be made for
making plots for residential and commercial purposes. It was sought
to be explained, that the acquired land may be plain or uneven, the
soil of the acquired land may be soft and hard, the acquired land may
have a hillock or may be low lying or may have deep ditches.
23 FIRST APPEAL 2944.2013.odt
Accordingly, it was pointed out, that expenses involved for
development would vary keeping in mind the facts and circumstances
of each case. In Kasturi's case (supra) it was held, that normal
deductions on account of development would be 1/3rd of the amount
of compensation. It was however clarified that in some cases the
deduction could be more than 1/3rd and in other cases even less than
1/3rd.
(vi) Following the decision rendered by this Court in Brigadier Sahib
Singh Kalha's case, this Court in Land Acquisition Officer,
Kammarapally Village, Nizamabad District, A.P. vs. Nookala
Rajamallu & Ors., (2003) 12 SCC 334, applied a deduction of 53
percent, to determine the compensation payable to the landowners.
(vii) In V. Hanumantha Reddy (Dead) by LRs. vs. Land Acquisition
Officer & Mandal R. Officer, (2003) 12 SCC 642, this Court
examined the propriety of compensation determined as payable to the
land loser by the High Court. The Reference Court had determined the
market value of developed land at Rs.78 per sq. yard. The Reference
Court then applied a deduction of 1/4th to arrive at Rs.58 per sq. yard
as the compensation payable. The High Court however concluded,
that compensation at Rs.30 per sq. yard would be appropriate (this
would mean a deduction of approximately 37 percent, as against
market value of developed land at Rs.78 per sq. yard). This Court
having made a reference to Kasturi's case (supra) did not find any
infirmity in the order passed by the High Court. In other words,
deduction of 37 percent was approved by this Court.
(viii) In para 21 of the judgment in Viluben Jhalejar Contractor
(Dead) by LRs. vs. State of Gujarat, (2005) 4 SCC 789, it was held
that for development, i.e., preparation of lay out plans, carving out
roads, leaving open spaces, plotting out smaller plots, waiting for
purchasers, and on account of other hazards of an entrepreneur, the
deduction could range between 20 percent and 50 percent of the total
24 FIRST APPEAL 2944.2013.odt
market price of the exemplar land.
(ix) In Atma Singh (Dead) through LRs & Ors. vs. State of Haryana
and Anr., (2008) 2 SCC 568, this Court after making a reference to a
number of decisions on the point, and after taking into consideration
the fact that the exemplar sale transaction was of a smaller piece of
land concluded, that deductions of 20 percent onwards, depending on
the facts and circumstances of each case could be made.
(x) In Lal Chand vs. Union of India & Anr., (2009) 15 SCC 769, it
was held that to determine the market value of a large tract of
undeveloped agricultural land (with potential for development), with
reference to sale price of small developed plot(s), deductions varying
between 20 percent to 75 percent of the price of such developed
plot(s) could be made.
(xi) In Subh Ram & Ors. vs. State of Haryana & Anr., (2010) 1 SCC
444, this Court opined, that in cases where the valuation of a large
area of agricultural or undeveloped land was to be determined on the
basis of the sale price of a small developed plot, standard deductions
ought to be 1/3rd towards infrastructure space (areas to be left out for
roads etc.) and 1/3rd towards infrastructural developmental costs
(costs for raising infrastructure), i.e., in all 2/3rd (or 67 percent).
(xii) In Andhra Pradesh Housing Board vs. K. Manohar Reddy &
Ors., (2010) 12 SCC 707, having examined the existing case law on
the point it was concluded, that deductions on account of development
could vary between 20 percent to 75 percent. In the peculiar facts of
the case a deduction of 1/3rd towards development charges was made
from the awarded amount to determine the compensation payable.
(xiii) In Special Land Acquisition Officer & Anr. vs. M.K. Rafiq
Sahib, (2011) 7 SCC 714, this Court after having concluded, that the
land which was subject matter of acquisition was not agricultural land
25 FIRST APPEAL 2944.2013.odt
for all practical purposes and no agricultural activities could be
carried out on it, concluded that in order to determine fair
compensation, based on a sale transaction of a small piece of
developed land (though the acquired land was a large chunk), the
deduction made by the High Court at 50 percent, ought to be
increased to 60 percent."
12. The Apex Court has treated 67% of deduction as
upper Bench mark and further held that the aforesaid
two components under the head of development could
put together should not exceed upper bench mark. The
apex Court in the above cited case has also held that for
the remaining deduction, which is in the form of waiting
period for sale of developed plots and or built-up areas
etc. the permissible range would be up to 8% and the
same depends upon the facts and circumstances of each
case.
13. Thus, considering the entire evidence on record,
deduction of 25% towards development of the land, out
of the market value determined on the basis of exemplar
of sale deed would be just and proper. Considering the
location of the acquired land and the adjacent land
being used for NA purpose after obtaining the
26 FIRST APPEAL 2944.2013.odt
permission from the revenue authorities and also the
fact that, the appellant-claimant has also applied for
conversion of use of his land for N.A. purpose prior to
section 4 notification published in respect of the
acquired land, deduction of 25% towards development of
the land out of the market value determined on the
basis of exemplar sale deed would be just and proper.
14. In view of the above discussion, the claimants are
entitled for the compensation at the enhanced rate by
applying deductions as aforesaid at the rate of Rs.7.5/-
per square feet (Rs.7,500/- per aar.) The claimants are
entitled for all the statutory benefits as awarded by the
Reference Court. Hence, following order.
O R D E R
1. First appeal No.2944/2013 (preferred by the
original claimant) is hereby partly allowed
with proportionate costs.
2. The judgment and award passed by the Jt.
Civil Judge Senior Division, Omerga dated
6.4.2013 LAR No.533/2005 (old LAR
No.383/1999) is hereby modified in the
following manner :-
27 FIRST APPEAL 2944.2013.odt
a] Respondent shall pay to the claimant
the compensation at the enhanced rate
@ Rs.7.5/- per square feet [Rs.7,500/-
(Rs. Seven Thousand Five Hundred) per
aar] towards enhanced compensation.
b] Respondent shall pay the compensation
to the claimant for the acquired land
after deducting the amount already
paid.
3. The claimant is entitled for all the statutory
benefits as awarded by the Reference Court.
4. First Appeal No.3413/2015 (preferred by the
State) is hereby dismissed.
5. Award be drawn up in terms of the
modifications as aforesaid.
6. Both the first appeals are accordingly
disposed of.
7. Pending civil applications, if any, also stand
disposed of.
sd/-
( V.K. JADHAV, J. )
...
AAA/-
