Shri. Rudrapratapsingh S/O ... vs The State Of Maharashtra, Thr. ...
2021 Latest Caselaw 9988 Bom

 FA 822.13 jud.corrected                               1/13


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

                            FIRST APPEAL NO. 822 OF 2013


 APPELLANTS :-                   1. Shri Rudrapratapsing s/o
 Ori. Plaintiffs                    Ramcharansingh Pawar
 (On R.A.)                          Aged about 65 years, Occ.
                                    Agriculturist.

                                 2. Shri Krushnapratapsingh s/o
                                    Rudrapratapsingh Pawar, Aged
                                    about 39 years, Occ. Agriculturist,

                                 3. Shri Bhanupratapsingh s/o
                                    Rudrapatapsingh Pawar, Aged
                                    about 35 years, Occ. Agriculturist.

                                 4. Shri Adityapratapsingh s/o
                                    Rudrapatapsingh Pawar, Aged
                                    about 35 years, Occ. Agriculturist.

                                      All resident of Dhapewada, Tah.
                                      Kalmeshwar, Distt. Nagpur.

                                          ...VERSUS...

 RESPONDENT :-                   1. The State of Maharashtra, through
 Ori. Respondents                   Collector, Collector building, Civil
 (On R.A.)                          Lines, Nagpur
                                 2. Special Land Acquisition Officer,
                                    (General), Civil Lines, Nagpur
                                 3. The Executive Engineer, Public
                                    Works Department No.2, P.W.D.,
                                    Office, Nagpur

 --------------------------------------------------------------------------------------------------
                   Shri. P. R. Puri, Advocate for appellants.
                   Ms. H.N. Jaipurkar, AGP for respondent Nos.1 and 2.
  --------------------------------------------------------------------------------------------------

                                        CORAM : PUSHPA V. GANEDIWALA, J.
     ARGUMENTS WERE HEARD ON : 26/07/2021
  JUDGMENT IS PRONOUNCED ON : 30/07/2021




::: Uploaded on - 03/08/2021                                     ::: Downloaded on - 24/09/2021 03:53:52 :::
  FA 822.13 jud.corrected                    2/13


 JUDGMENT

1. Heard.

2. The challenge in this appeal is to the judgment and

award dated 15.02.2013 in LAC No.48/2004 passed by the Joint

Civil Judge Senior Division, Nagpur whereby the Reference Court

fixed the market value of the acquired land admeasuring 1.70

hectare out of Khasra No.21/2 of Mouza Sonapur, Tq.

Kalmeshwar, District Nagpur at the rate of Rs.1,00,000/- per

hectare against the rate which was originally granted by the

Special Land Acquisition Officer, i.e., Rs.68,750/- per hectate.

3. The facts necessary to decide the present appeal may

be stated as under:-

(i) The aforesaid land of the appellants was acquired

vide notification issued under Section 4 (1) of the Land

Acquisition Act, 1894 vide LAC No. 1/A65/1999-2000. It is

stated that prior to the said notification, the appellants have

initiated proceedings for conversion of the aforesaid khasra

number to non-agricultural use, and the competent authority, i.e.,

FA 822.13 jud.corrected 3/13

S.D.O. Saoner in Revenue Case No. 4/NAP-34/98-99 allowed the

applicants' claim vide order dated 09.06.1999. It is stated that the

Special Land Acquisition, Officer Nagpur has granted

compensation at the rate of Rs.68,750/- for the land admeasuring

1.70 hectares, though the land acquired was two hectares.

(ii) Being aggrieved by the inadequate amount of

compensation, the appellants made a reference before the

Collector, Nagpur under Section 18 of the Land Acquisition Act,

1894, which was further referred to the Court of Civil Judge

Senior Division, Nagpur for adjudication, and the same is

registered as LAC No. 48/2004. It is the grievance of the

appellants before the Reference Court that the Special Land

Acquisition Officer has not considered the non-agricultural

potentiality of the acquired land. The appellants claimed

enhancement at the rate of Rs.200/- per square meter and also

claimed enhancement of amount towards compensation for trees

which were standing on the acquired land at the relevant time.

(iii) In response, the respondents, in their written

statement, opposed the enhancement of compensation and

submitted that the award passed by the Special Land Acquisition

FA 822.13 jud.corrected 4/13

Officer is just, proper, and judicious and commensurate with the

prevailing facts and circumstances. The Reference Court framed

necessary issues and recorded evidence as adduced by the parties.

The appellants examined one of the appellants by name Aditya

Pratap Rudrapratapsingh Pawar at Exh.12 and brought on record

the following documents :

1. 7/12 extract of land bearing Khasra No.21 (Exh.15).

2. Copy of award dated 9.01.2003 (Exh.16).

3. Notice issued under Section 12(2) of the Land Acquisition Exh.17.

The appellants also examined PW-2 Sahebrao

Namdeorao Datonde, Joint District Registrar, Nagpur (Gramin)

and brought on record the ready reckoner (Exh. 32) of the

relevant time to decide the market value of the non-agricultural

lands. Respondents/ State neither examined any witness nor did

cross examine any of the witnesses of the appellants.

(iv) The Reference Court fixed the market value of the

acquired land at the rate of Rs.1,00,000/- per hectare. This

judgment of the Reference Court is impugned in this appeal.

FA 822.13 jud.corrected 5/13

4. I have heard Shri P.R.Puri, learned counsel for the

appellants, and Ms H.N. Jaipurkar, learned AGP for the

respondents/ State.

5. Shri P. R. Puri, learned counsel for the appellants,

restricted his argument only on the issue of enhancement of

compensation on the basis of market value as shown in the ready

reckoner at Exh.32. Learned counsel would vehemently urged that

the Reference Court, without considering the overwhelming

evidence on record with regard to prevailing market rates of the

acquired land, fixed the rate of the acquired land at the rate of

Rs.1,00,000/- per hectare only on basis of guess work as per his

whim and fancy. Learned counsel would further submit that in the

absence of cross-examination of the witnesses of the appellants,

there was no reason for the Reference Court to discard the

evidence of the appellants with regard to the market value of the

acquired land on the basis of ready reckoner. Learned counsel

drew attention of this Court to the contents in the copy of the

award at Exh.16 and submitted that it is admitted position on

record that the subject land was converted into non-agricultural

use vide order of the Sub-Divisional Officer, Saoner dated

09.06.1999 and the same was acquired for construction purpose,

FA 822.13 jud.corrected 6/13

i.e., construction of rest house. Learned counsel urged to enhance

the compensation as per the market rates in the ready reckoner

(Exh.32). Learned counsel did not press the claim of the

appellants for enhancement in compensation towards value of the

trees.

6. Per contra, Ms. H.N. Jaipurkar, learned AGP appearing

on behalf of the respondents/ State, while supporting the

judgment and award of the Reference Court submitted that the

rates of the land in ready reckoner are fixed for the purpose of

revenue generation and therefore, are on higher side and these

rates cannot be considered in fixing the true market value of the

acquired land.

7. I have considered the submissions advanced across

the bar on behalf of the both the sides. On the basis of submissions

advanced and the material on record, the point arose for the

determination of this Court is as under:-

" Whether the learned Reference Court committed error in not considering the rates in the Ready Reckoner in determining the market value of the acquired land?"

FA 822.13 jud.corrected 7/13

8. At the outset, it is not disputed that the subject land

was converted for non-agricultural use as per the order of Sub

Divisional Officer dated 09.06.1999. The reference of the this

order is found mentioned in the impugned award of the Special

Land Officer. The aforesaid award also mentioned the potentiality

of the land for the agricultural use as per 7/12 extract dated

30.01.1999 showing crops like jwar, tur, kapus, soyabin, gahu and

chana. The award also found mention that the subject land is

abutting the Kalmeshwar road. It is also not disputed that the land

was acquired for the purpose of construction of rest house. Neither

the Special Land Officer nor the Reference Court considered the

sale instances of the adjoining lands at the relevant time for want

of availability. The claimants examined himself and also one

witness from the Government to show the market value of the

land which is converted into non-agricultural use on the basis of

ready reckoner. As per ready reckoner at Exh.32, the rates of the

land which is abutting the highway is Rs.120/- per square meter

for zone No.3.

9. The respondents/ State preferred not to examine any

witness to substantiate its stand that the appellants have deliberately

got converted this land into non-agricultural use apprehending

FA 822.13 jud.corrected 8/13

acquisition proceedings. With regard to the question as to whether

the market value of the land can be determined on the basis of

rates provided in the ready reckoner, in this context, it would be

profitable to refer to the judgment of the Division Bench of this

Court in First Appeal No.1302/2009 in the case of M/s

Nemichand Damodardas Vs. State of Maharashtra and others

decided on 20.01.2021 wherein the issue as to whether the

Government Resolution dated 31.10.1994 is liable to be taken into

consideration for deciding the fair market value?.

10. The aforesaid Government Resolution dated

31.10.1994 has been issued by the Revenue and Forest

Department of the State Government relating to acquisition of

land under the said Act and valuation of such acquired land while

granting compensation. In the said Government Resolution, it has

been stated that the matter, with regard to applicability of the

rates indicated in the ready reckoner while determining the

amount of compensation for acquired land, was under

consideration of the State Government. It was resolved that while

determining the amount of compensation for the acquired land,

the same could be on the basis of sale instances, income

capitalization method or with reference to the valuation as per

FA 822.13 jud.corrected 9/13

ready reckoner. It was further resolved that while determining

such value of the acquired land the valuation which was beneficial

to the land owner meaning whichever was higher should be

preferred. The Division Bench after considering the judgment of

this Court in the case of Shalini Waman Godbole Vs. Special Land

Acquisition Officer, Special Unit, Solapur and others. 2009 (5)

Mh.L.J. 884 have held that this Government Resolution was

specifically issued to enable fair determination of the amount of

compensation by taking into consideration the valuation of the

land as indicated by the ready reckoner and therefore, it was

further held that the claimant was justified in relying upon this

Government Resolution at Exh.110 while seeking determination

of fair compensation for the acquired land. It is also observed that

the document at Exh.119 indicates that the instructions were also

issued to the revenue authorities to abide by this Government

Resolution while determining the amount of compensation.

Apart from this, in the case of Nisar Ahmad Ramzan

Momin Vs. The Special Land Acquisition Officer and others in First

Appeal No.846 of 2012 decided on 14.02.2018 this issue inter-alia

came before the Division Bench of this Court as to in which

situation the appellant can rely on the ready reckoner for claiming

FA 822.13 jud.corrected 10/13

the compensation. The Court considered the Government

Resolution dated 31.10.1994 and observed that it is clearly laid

down in this Government Resolution that the valuation given in

the ready reckoner was an important consideration and the

valuation arrived at by different methods should be taken into

consideration and whichever was higher, should be granted as

compensation. In this judgment also, the Court referred the

judgment in the case of Shalini Godbole (supra) and it is held that

it was incumbent on the Special Land Acquisition Officer to have

taken into consideration the ready reckoner for the year 1999 in

deciding the rate of compensation.

11. Coming to the facts of the present case, in the absence

of any other material on record to fix the market value of the

subject land, in the considered view of this Court, ready reckoner

at Exh.32, which is proved through the Government witness

Sahebrao Namdeorao Datonde, Joint District Registrar Nagpur

Gramin (PW-2), the market value has to be decided on the basis of

ready reckoner. However, the claimants would not be entitled to

100% of the rates in the ready reckoner. On this aspect, the

observations of the trial Court for not relying on the ready

reckoner on the ground that ready reckoner does not reflect the

FA 822.13 jud.corrected 11/13

true market value as the ready reckoner are prepared with a view

to collect the revenue on the transactions of transfer of immovable

properties, appears to be misplaced. The trial Court adjudicated

the market value at Rs.1,00,000/- per hectare absolutely without

any substantive material and only on the basis of guess book

which needs to be modified.

12. Considering the admitted facts on record that even

after converting land into non-agricultural use, the claimants have

not used the said land for non-agricultural purpose. The purpose

of the acquisition of the subject land was for constructing guest

house which would require further development of the land. In

this context, the Hon'ble Apex Court in the case of Valliyammal &

another etc. Vs. Special Tahsildar (Land Acquisition) and another

in Civil Appeal Nos. 6127-6128/2011 decided on 1.08.2011

considered the earlier pronouncement on the subject and held that

in fixing the market value of the acquired land which is developed

or under developed, the Courts have generally approved

deductions of 1/3 of the market value towards development cost

except when no development is required to be made for

implementation of the public purpose for which the land is

acquired.

FA 822.13 jud.corrected 12/13

13. The Hon'ble Apex Court in this case referred to the

pronouncement in the case of Kasturi and ors. Vs. State of

Haryana (2003) 1 SCC 354 wherein it is stated that "it is well

settled that in respect of agricultural land or under developed

land which has potential value for housing or commercial

purpose, normally 1/3 amount of compensation has to be

deducted out of the amount of compensation payable on the

acquired land subject to certain variation taken on its nature,

location expenses of expenditure involved for development and

the area required for rate and other civil amenities to develop the

land so as to make plots for residential and commercial

purpose.................."

14. Apart from the aforesaid judgments, there is a series

of judgments wherein deduction towards development was

allowed depending upon nature and location of the acquired land,

extent of land acquired to be set apart and expenses involved for

development.

15. Coming to the facts of the present case, as stated

earlier, in view of the facts and circumstances of the case, 1/3 rd

deduction towards development charges would be justified.

FA 822.13 jud.corrected 13/13

16. As the prevailing rate in the ready reckoner in the

year 1999 for the lands situated in Group 3 of village Sonapur

was Rs.120/- per sq. meter and after deducting ⅓ rd therefrom, it

would come to Rs.80/- per sq. meter. The appellants/ claimants

would be entitled to receive compensation for the acquired land,

i.e., 1.70 hectare at the rate of Rs.8,00,000/- per hectare with all

statutory benefits and interest. In the circumstances, I proceed to

pass the following order :-

ORDER

(i) The Appeal is partly allowed.

(ii) The respondents/ State shall pay to the appellants

compensation at the rate of Rs.8,00,000/- per hectare (Rs.80/- per

sq. meter for area of land admeasuring 1.70 hectare) with all

statutory benefits and interest.

(iii) Needless to say that the respondents/ State are at

liberty to deduct the compensation which has already been

withdrawn by the appellants.

(iv) The appeal stands partly allowed and disposed of. In

the circumstances, no order as to costs.

JUDGE

Manisha