Bombay High Court
Executive Director Vidarbha ... vs Rajesh Prabhkar Bokinpillewar ... on 13 January, 2021
Bench: A.S. Chandurkar, Nitin B. Suryawanshi
1 FA 571.17 + X-Obj. St. 12892.20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.571 OF 2017
WITH
CROSS-OBJECTION ST. NO.12892 OF 2020
FIRST APPEAL NO.571 OF 2017
1. The Executive Director,
V.I.D.C. Sinchan Bhawan,
Nagpur. Respt.4/OnR.A.
2. The Executive Engineer,
Arunavati Project Division,
Digras, Tah. Digras,
District-Yavatmal. Respt.2/OnR.A.
... Appellants
.. Versus ..
1. Shri Rajesh Prabhakar Bokinpillewar,
Aged about 40 years. Claimant No.1
2. Gajanan Shalikram Kange, Claimant No.2
Aged about 35 years,
Both R/o. Digras, Tah. Digras,
Dist. Yavatmal.
3. State of Maharashtra, Respt.1/On R.A.
through Collector, Yavatmal,
Collector Office, Dist. Yavatmal.
4. Special Land Acquisition Officer, Respt.2/On R.A.
Affected area, Yavatmal,
Dist. Yavatmal.
... Respondents
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2 FA 571.17 + X-Obj. St. 12892.20
WITH
CROSS-OBJECTION ST. NO.12892 OF 2020
1. Executive Director,
Vidarbha Irrigation Development
Corporation, Sinchan Bhawan,
Nagpur. Respt.4/On R.A.
2. Executive Engineer,
Arunavati Project Division,
Digras, Tah. Digras, Respt.2/On R.A.
District-Yavatmal. ... Appellants
.. Versus ..
1. Shri Rajesh Prabhakarrao Bokinpillewar,
Aged about 49 years,
R/o. Digras, Tah. Digras,
Distt. Yavatmal. Claimant No.1-Objector
2. Gajanan Shalikram Kange,
Aged about 44 years,
Occupation-Agriculturist,
Resident of Digras, District-Yeotmal. Claimant No.2
3. State of Maharashtra,
through Collector, Yavatmal,
Collector Office, Yavatmal,
Dist. Yavatmal. Respt.3/On R.A.
4. Special Land Acquisition Officer,
Affected area, Yavatmal,
Distt. Yavatmal. Respt.4/On R.A.
... Respondents
..........
Mrs. J.J. Alkari, Advocate for the appellants,
Shri M.M. Agnihotri, Advocate for respondent nos.1 and 2,
Shri M.A. Kadu, AGP for respondent nos.3 and 4.
..........
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3 FA 571.17 + X-Obj. St. 12892.20
CORAM : A.S. CHANDURKAR AND
N.B. SURYAWANSHI, JJ.
RESERVED ON : 21.12.2020
PRONOUNCED ON : 13.01.2021
JUDGMENT [PER : N. B. SURYAWANSHI, J.]
1. This First Appeal filed under Section 54 of the Land
Acquisition Act, 1894 (for short 'the said Act') and the cross-objection
filed under Order 41, Rule 22 of the Code of Civil Procedure, 1908
take exception to the impugned judgment and award in reference
LAC No.198/2002 passed by the Joint Civil Judge, Senior Division,
Nagpur, hence, they are decided together by this common judgment.
2. Land survey no. 116/1 admeasuring 2H 65R owned by
the claimants situated at Mouza Digras, Tahsil-Digras,
District-Yavatmal was acquired as it was falling under the
submergence area of Arunavati Project. The Notification u/s 4 (1)
was published on 31.05.2007 in the Government gazette and the
award was published on 13.05.2010. The Land Acquisition Officer
(for short, 'the LAO') granted total compensation of Rs.49,18,977/-
for the acquired land. Since the claimants were not satisfied with the
4 FA 571.17 + X-Obj. St. 12892.20
same, they filed LAC No. 19/2019 claiming compensation at the rate
of Rs.500/- per sq. ft. for their acquired land. The reference Court
granted compensation at the rate of Rs.170/- per sq. ft. to the
acquired land, however towards development, deducted 35% area
from the acquired area of claimant Rajesh and granted enhanced
compensation for 172.25R land of Rajesh and for 19.05R land of
claimant Ravindra. The enhanced compensation is granted along
with statutory benefits.
3. The acquiring body, by filing first appeal, has challenged
enhanced compensation granted by the reference Court.
The claimants are seeking further enhanced compensation by filing
cross-objection.
4. Heard the learned advocate for the appellants and the
learned advocate for the cross-objectors. The learned advocate for
appellants submitted that the reference Court has erred in granting
enhanced compensation at the rate of Rs.170/- per sq. ft. There was
no material on record to grant enhanced compensation. The land of
the claimants was not converted into non-agriculture. The LAO had
given correct rate and there was no occasion for the reference Court
5 FA 571.17 + X-Obj. St. 12892.20
to interfere in the same. She further submitted that since the
acquired land was a agricultural land and no NA permission was
granted to the same, merely because nearby lands are used for non-
agricultural purposes, the compensation for the acquired land should
not have been given by the reference Court at commercial rate. In
support of submissions, she placed reliance on the judgment in the
case of Abdul Hamid s/o Abdul Majid ..vs.. State of Maharashtra and
another, 2017 (5) Mh.L.J. 799. She, therefore, submitted that the
impugned judgment of the reference Court is unsustainable and the
same is liable to be quashed and set aside and the compensation
awarded by the LAO needs to be sustained.
5. On the other hand, arguing the cross-objection, the
learned advocate for claimants submitted that the claimants have
produced sufficient material before the reference Court in the form
of sale instances and on the basis of which, the reference Court ought
to have granted compensation claimed at the rate of Rs.500/- per
sq.ft. for the acquired land. Sufficient material was brought on record
6 FA 571.17 + X-Obj. St. 12892.20
before the reference Court in respect of potentiality of land and
facilities available there. The area around the acquired land was
entirely developed. The claimants have examined witness in support
of the claim for enhanced compensation. He further submitted that
the reference Court has committed an error in only considering the
sale instance at Exh.34, in fact, the reference Court ought to have
considered the sale instance at Exh.37. In view of sale instance at
Exh.37, he submitted that higher exemplar of Rs.216/- per sq. ft.
should have been taken into consideration by the reference Court.
By placing reliance on the decision of the Apex Court, he submitted
that higher sale instance/exemplar should have been considered by
the reference Court. He submitted that the claimants have proved
higher potentiality of the acquired land, therefore, the claimants are
entitled for increased compensation. By placing reliance on the
decision of the Apex Court in General Manager, Oil and Natural Gas
Corporation Limited ..vs.. Rameshbhai Jivanbhai Patel and another,
(2008) 14 SCC 745, he submitted that increased compensation
should be granted at cumulative rate. Further submission is that
taking into consideration the fact that the acquired land was in semi
urban area, 15% increase should be granted on the rate at which the
lands were sold in the sale instances. Learned Advocate further
argued that the reference Court has committed an error in deducting
7 FA 571.17 + X-Obj. St. 12892.20
35% area from the acquired land towards development, since the
land was acquired for submergence, there was no occasion for any
deduction towards development. In support of this submission, he
relied upon the decision of the Hon'ble Supreme Court in Sajan ..vs..
State of Maharashtra and others (Civil Appeal Nos.2170-2171 of
2020). He therefore urged that there is sufficient material on record
to justify the claim of Rs.500/- per sq. ft. of the claimants lodged
before the reference Court and the same needs to be allowed along
with statutory benefits. In support of his submissions, he placed
reliance on the following decisions :
(1) Mehrawal Khewaji Trust (Registered), Faridkot and
others, (2012) 5 SCC 432.
(2) Krishi Utpadan Mandi Samiti, Sahaswan, District-
Badaun .vs. Bipin Kumar and another,
(2004) 2 SCC 283.
(3) Thakarsibhai Devjibhai and others .vs. Executive
Engineer, Gujarat and another, (2001) 9 SCC 584.
(4) C.R. Nagaraja Shetty (2) .vs. Special Land Acquisition
Officer and Estate Officer and another,
(2009) 11 SCC 75.
6. In reply, the learned advocate for the acquiring body
submitted that the facts and the decisions relied upon by the learned
advocate for the claimants are different. She further submitted that
8 FA 571.17 + X-Obj. St. 12892.20
though the claimants have relied upon the decision in 2017(5)
Mh.L.J. 799, review against this decision is pending. Therefore, they
may not be of any help to the claimants.
7. Learned AGP has adopted the argument of the acquiring
body and further submitted that the enhancement granted by the
reference Court is exorbitant and excessive. He further submitted
that the claimants are not entitled for further enhancement of
compensation. He, therefore, submitted that the first appeal be
allowed and the cross-objection be dismissed.
8. We have perused the record. After hearing the contesting
parties, following points arise for consideration :
1) Whether the compensation granted by the reference
Court is liable to be reduced or enhanced ?
2) Whether the reference Court was justified in deducting
35% area towards development cost ?
9. For considering the rival contentions, it is necessary to
appreciate the evidence brought on record. Claimants examined
special Power of Attorney holder Prabhakar Narayan Bokinpillewar
(who was claimant in LAC No.20/2019). In his evidence he stated
that the acquired land had N.A. potential. The process for converting
9 FA 571.17 + X-Obj. St. 12892.20
the land to non-agriculture purpose was already initiated on
27.06.2000, as the land was intended to be used for residential
purpose. However, the permission was rejected by the competent
authority, as the land of the claimants was in the submergence area
of Arunavati Project. Since the year 2000, the area around acquired
land was developed, the adjacent lands were converted into
non-agriculture. Digras is a Tahsil place and the population is near
about 75000. All the facilities like Tahsil Office, SDO Office, various
Government Offices, many schools and colleges are there at Digras.
Digras Tahsil is famous for Cotton centre and for Cattle market.
Residential colonies like Vaibhav Nagar, Laxmi Nagar, Viraj Nagar,
Ghansham Society, Deaf and Dumb School, Court Premises,
Panchayat Sammittee, M.S.E.B. Quarters, Bapu Nagar, Vitthal Nagar,
Shankar Nagar and Datta Nagar were adjacent to the acquired land
at a distance of approximately 30 mtrs to 100 mtrs. Stadium
D.V.S.P. College, M.S.E.B. Office, Tahsil Office, Dhurve Nagar, Radha
Nagari, Patil Nagar, Government rest house and Laxminagar Part-II
are about 120 mtrs to 300 mtrs away from the acquired land.
He claimed that the area of acquired land was prime area
of town. In the year 1995, the Government of Maharashtra acquired
1H 21R land from land bearing survey no.118/3 which is adjacent to
10 FA 571.17 + X-Obj. St. 12892.20
the acquired land for construction of Court building and Judges
quarters. Civil Judge Senior Division in LAC No.18/1997 awarded
compensation at the rate of Rs.100/- per sq.ft. for the said survey
number considering its N.A. potential. If 10% increase in the market
rate per year is applied, then the claimants are entitled for increased
compensation. The claimants relied upon sale instances at Exh-34,
Exh-35 and Exh-36. Reliance is also placed on mutation entry at
Exh-37 of plot no. 3 ad-measuring 111.60 sq. mtr of survey
no. 66/67 at Mouza Digras which was purchased on 03.09.2005
for consideration of Rs.2,60,000/-.
10. In cross-examination this witness admitted that one can
see the dam water by standing on the first floor of the house of
claimants, that firstly the dam water came in the land of the
claimants, and thereafter, the land was acquired. Whenever the dam
gets overloaded, the water used to come in the acquired lands before
its acquisition. The acquired land of the claimants was purchased at
the rate of Rs.2,48,619/- per hectare in the year 2000. He denied
the suggestion that as the dam water comes in the acquired land, the
same is neither suitable for residential purpose nor for the
agriculture purpose.
11 FA 571.17 + X-Obj. St. 12892.20
11. Civil Engineer Anil Ramdas Hankare, a consulting
engineer was examined by the claimants as PW-2 who prepared
location plan for gat no.116/1 of the claimants. He visited the
acquired land on 29.04.2008. He found that the acquired lands were
in the middle of heavy locality. According to him, the acquired lands
had high N.A. potential, many agricultural lands surrounding the
acquired land were converted into N.A. He stated that if the
acquired land was converted into N.A., the claimants could easily
utilize about 70% of land for residential purposes. He confirmed that
the Court Premises, M.S.E.B. Quarters and other residential colonies
were in close proximity of the acquired land. In cross-examination
he admitted that there cannot be a layout of submergence area. He
denied that at the time of his visit, the acquired land was in
submergence area.
12. The acquiring body examined C. V. Vakode, Assistant
Executive Engineer as their witness. He stated that in Arunavati
Project since 1995 water was being stored and the entries of date
wise water storage were recorded in the register. He gave the
figures of water storage in the Arunavati Project between 29.10.1996
till 25.10.2000. He stated that the land of the claimants survey
no. 116/1 ad-measuring 2H 65R was acquired and the said land was
12 FA 571.17 + X-Obj. St. 12892.20
under water since 1998. Therefore, the land could not have been
converted into N.A. In spite of knowing this, the claimants in the
year 2000 deliberately applied for N.A. permission with a view to get
more compensation, which was rejected as the acquired land was
under submergence area of Arunavati Project. According to him, the
LAO has given much more compensation to the claimants than the
rate at which the claimants purchased the acquired land. In cross-
examination he admitted that when he went for spot inspection at
the acquired land, it is mentioned in award at Exh-19 that most of
the lands adjoining the acquired land were converted into
non-agriculture purpose and that in the three directions of the
acquired land, there was thick population. He further admitted that
the building of Civil Court was adjacent to the acquired land on the
northern side, in the year 1995-96 the Government has paid
compensation @ Rs.110/- sq.ft. for the land acquired for the Court
premises. He further admitted that since the year 2000 onwards,
there was development around the acquired land. It is also admitted
that if the acquired land was not submerged, the claimants could
have used it by converting the same into N.A. He denied the
suggestion that at the time of acquisition, the adjoining lands were
fetching Rs.500/- per sq.ft. rate.
13 FA 571.17 + X-Obj. St. 12892.20
13. The sale instances at Exh-35 and 36 are of the year 1992
and they are of small plots of the lands. Considering the fact that
Notification under Section 4 in the present case was issued in the
year 2007, it would not be proper to consider them while arriving at
the market value of the acquired lands. Though the learned advocate
for the claimants vehemently argued that the reference Court ought
to have relied upon the mutation entry at Exh-37 while arriving at
the market value. The said argument does not appeal to us for the
reason that on perusal of map at Exh-26, the land referred in Exh-37
is a plot in survey no. 66 and 67, which is at a substantial distance
of about more than 500 mtrs from the acquired land. On the other
hand, vide Exhibit 34, plot no.45 out of survey no.109/2 was sold at
the rate of Rs. 150/- per sq. ft. in the year 2006. This land is nearer
to the acquired land, hence, sale instance at Exh-34 needs to be
relied upon for arriving at market value of the acquired land. Taking
into consideration the development around the acquired land as
residential colonies, M.S.E.B. Quarters and the proximity of Court
Premises, and the fact that Digras is a Tahsil place and semi urban
area, in the light of decision in Mehrawal Khewaji Trust (supra) and
General Manager, ONGC (supra), escalation @ 15% per annum over
the price in the year 2006 would be reasonable and the same needs
to be granted to the claimants. Adding 15% escalation in Rs.150/-
14 FA 571.17 + X-Obj. St. 12892.20
per sq.ft., the market value of the acquired land would be @
Rs.172.50/- per sq.ft. The point no. 1 is answered accordingly.
14. The arguments of the claimants that since the land was
acquired for submergence area of Arunavati Project, the reference
Court committed an error in deducting 35% area for development
deserves to be accepted. The learned advocate for the claimants
rightly relied upon the ratio in Sajan (supra), wherein the Hon'ble
Supreme Court was considering as to whether the High Court was
justified in reducing the compensation by giving 40% deduction
towards development cost, the land was acquired for construction of
Hiwra Dam Project. The Hon'ble Supreme Court, therefore, held that
much of the development like in the case of a layout for housing
colony is not required. The Hon'ble Supreme Court, therefore, held
that 20% deduction for development cost would be reasonable. In
the case in hand, since the land was acquired for submergence of
Arunavati Project, the question of development would not arise. In
the light of ratio in Sajan (supra) 20% area deduction towards
development would be reasonable. We are of the considered view
that the reference Court was not justified in deducting 35% area
towards development. According to us, 20% area deduction towards
15 FA 571.17 + X-Obj. St. 12892.20
development would be reasonable. We, therefore, answer the point
accordingly.
15. According to us, the decision in Abdul Hamid (supra)
would not be of any help to the acquiring body as there is sufficient
material on record to show the potentiality of the acquired land, the
proximity of the acquired land from the adjoining residential colonies
as well as the Court Premises and other Government Offices, hence,
the land of the claimants could have been used for N.A. purposes.
16. We have already held that sale instance at Exhibit 34,
taking into consideration the proximity of time and distance is
required to be relied upon as a comparable sale instance. Since sale
instance at Exhibit 34 is of a non-agricultural plot which is of smaller
dimension i.e. 210 sq.m. and the acquired land is of a larger size i.e.
2H 65R, the aspect of deduction is, therefore, will have to be taken
into consideration. In Trishala Jain and anr. Vs. State of Uttaranchal
and anr. 2011 (6) SCC 47, the Hon'ble Supreme Court held that :
82. It is a well established principle that the value of
sale of small pieces of land can be taken into consideration
for determining even the value of a large tract of land but
with a rider that the Court while taking such instances into
16 FA 571.17 + X-Obj. St. 12892.20
consideration has to make some deduction keeping in view
the other attendant circumstances and facts of that particular
case. We have already held that keeping in view the
surrounding developed areas and location and potential of
the land, it will meet the ends of justice if 10% deduction is
made from the esteemed market value of the acquired land.
Applying the above ratio to the case in hand, though the
sale instance at Exhibit 34 is of a smaller plot and the acquired land
is bigger, taking into consideration its location, potential and the fact
that the acquired land was in the close proximity of Court premises
and was surrounded by residential colonies, Government Offices
and as the surrounding area of acquired land was thickly populated,
we hold that deduction of 10% on account of acquired land being
large in size would meet the ends of justice. Thus while awarding
compensation, deduction of 20% towards development and 10% on
account of size i.e. total deduction of 30% needs to be made.
17. In the light of aforesaid discussion, we answer the point
no. 2 by holding that the reference Court was not justified in
deducting 35% area towards development charges and we hold that
30% deduction needs to be made in the facts of the present case.
Hence, the following order :
17 FA 571.17 + X-Obj. St. 12892.20
i) First Appeal No. 571 of 2017 is dismissed.
ii) Cross-objection No.12892 of 2020 is partly allowed and
the judgment of the reference Court in LAC No.198 of
2002 is partly modified as follows :
The claimants are entitled for compensation for the
acquired land @ Rs.172.50/- per sq.ft. with deduction of
30% on the same.
iii) The compensation shall be paid with all statutory benefits.
iv) The acquiring body at the time of admission of this appeal
has deposited 50% amount of enhanced compensation.
The balance amount of compensation shall be deposited
in this Court within twelve weeks. After the acquiring
body deposits the remaining amount of compensation, the
claimants will be entitled to withdraw the same.
v) Parties to bear their own costs.
(N. B. SURYAWANSHI, J.) (A. S. CHANDURKAR, J.)
TAMBE/wasnik
18 FA 571.17 + X-Obj. St. 12892.20
