Bombay High Court
Smt. Vijayadevi Navalkishore ... vs State Of Maha. Thr. Special Land ... on 27 September, 2022
Bench: S.B. Shukre, G. A. Sanap
FA 643.2006+1(J).odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 643 OF 2006
with
FIRST APPEAL NO. 541 OF 2007
........
FIRST APPEAL NO. 643 OF 2006
1. Smt. Vijayadevi Navalkishore Bhartia
Aged 56 Years, Occu : Household,
2. Smt. Ranidevi Brijmohan Bhartia,
Aged 52 Yrs., Occu.: Household,
(Amended/Deleted as per Court's order dated 22.10.2008
and following names have been substituted)
R/o Bhartia Bhavan, Tajnapeth, Akola, Tq. & Dist. Akola
through power of attorney holder
Shri Navalkishore S/o Chimanlalji Bhartia
aged 59 years, resident of Bhartia Bhavan,
Tajnapeth, Akola, Tq. & Dist. Akola.
(1) Smt. Taradevi Chimanlalji Bhartia,
Aged 78 years, Household,
Resident of Bhartia Bhavan,
Tajnapeth, Akola, Tq. & Dist. Akola
(2) Shri Navalkishore Chimanlalji Bhartia,
Aged 60 years, Businessman,
Resident of Bhartia Bhavan,
Tajnapeth, Akola, Tq. & Dist. Akola
(3) Shri Shashikant Chimanlalji Bhartia,
Aged 54 years, Businessman,
Resident of Bhartia Bhavan,
Tajnapeth, Akola, Tq. & Dist. Akola
(4) Shri Deepakkumar Chimanlalji Bhartia,
Aged 50 years, Businessman,
Resident of Bhartia Bhavan,
Tajnapeth, Akola, Tq. & Dist. Akola
... APPELLANTS
FA 643.2006+1(J).odt
2
...VERSUS...
1. The State of Maharashtra,
through Special Land Acquisition Officer ,
Katepurna Morna Project,
Akola, Tq. and Dist. Akola
2. Executive Engineer,
Akola Irrigation Division,
Akola, Tq. & Dist. Akola ... RESPONDENTS
WITH
FIRST APPEAL NO. 541 OF 2007
1. The State of Maharashtra,
The Special Land Acquisition Officer,
Katepurna Morna Project,
Akola,
2. The Executive Engineer,
Akola Irrigation Division,
Akola, ... APPELLANTS
...VERSUS...
1. Smt. Vijayadevi Navalkishore Bhartia
Aged 50 Years, Occu : Household work,
R/o Bhartia Bhavan, Tajnapeth,
Akola, Tq. And Dist. Akola
2. Smt. Ranidevi Brijmohan Bhartia,
Aged 52 Yrs., Occu.: Household,
(Amended/Deleted as per Court's order dated 10.11.2008
and following names have been substituted)
(1) Smt. Taradevi Chimanlalji Bhartia,
Aged 78 years, Household,
Resident of Bhartia Bhavan,
Tajnapeth, Akola, Tq. & Dist. Akola
(2) Shri Navalkishore Chimanlalji Bhartia,
Aged 60 years, Businessman,
FA 643.2006+1(J).odt
3
Resident of Bhartia Bhavan,
Tajnapeth, Akola, Tq. & Dist. Akola
(3) Shri Shashikant Chimanlalji Bhartia,
Aged 54 years, Businessman,
Resident of Bhartia Bhavan,
Tajnapeth, Akola, Tq. & Dist. Akola
(4) Shri Deepakkumar Chimanlalji Bhartia,
Aged 50 years, Businessman,
Resident of Bhartia Bhavan,
Tajnapeth, Akola, Tq. & Dist. Akola ... RESPONDENTS
-------------------------------------------------------------------------------------------------
Shri R. L. Khapre, Sr. Advocate a/b. Shri R. B. Agrawal, Advocate
for the claimants in both the appeals
Shri I. J. Damle, Asst. Govt. Pleader for State authorities in both appeals.
-------------------------------------------------------------------------------------------------
CORAM : SUNIL B. SHUKRE and G. A. SANAP, JJ.
Date of Reserving the Judgment : July 25, 2022
Date of Pronouncement of Judgment : September 27, 2022
JUDGMENT : (PER : G. A. SANAP, J.)
1. Both these appeals arise out of Judgment and Order dated
10.08.2006 passed by learned Ad-hoc Additional District Judge, Akola in
Land Acquisition Case No. 209 of 2002 and therefore, both these appeals
are being disposed of by common judgment. First Appeal No. 643 of
2006 is filed by the claimants. First appeal No. 541 of 2007 is filed by
the State of Maharashtra through Collector/Special Land Acquisition
Officer, Akola. The learned Ad-hoc Additional District Judge, Akola
partly allowed the Land Acquisition Case/Reference and enhanced the
compensation @ of Rs.100/- per Sq. ft. for the plot area admeasuring
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359684.44 Sq.ft., @ Rs.50/- per sq.ft for open belt area, admeasuring
108501.12 sq.ft and @ Rs.25/- per sq.ft. for the plot area in balance
created due to division, admeasuring 28809.84 sq.ft, with consequential
benefits.
2. The facts leading to the appeals are as follows:-
In the judgment for the purpose of convenience the parties
would be referred by their nomenclature as mentioned in the judgment of
the trial Court. The land bearing survey Nos. 6, 7 and 60, total
admeasuring 6.74 HR, belonging to the claimants, was acquired for the
purpose of construction of a flood control wall on the bank of river
Morna. The State Government, on 03.06.1999, published a notification
under Section 4(1) of the Land Acquisition Act, 1894 (For short 'the
Acquisition Act"). The State Government published a declaration under
Section 6 of the said Act on 06.10.1999. The process initiated for
acquisition of the land culminated into the award passed by the Special
Land Acquisition Officer on 09.04.2001. In the acquisition proceedings
required inquiry was made. The Land Acquisition Officer awarded the
compensation @ of Rs.72,400/- per hectare.
FA 643.2006+1(J).odt
3. The claimants being aggrieved filed the Reference.
According to the claimants, the acquired land was converted to non
agricultural purpose in Revenue Case No. NAP-34/Akoli Khd./3/1982-
83. The claimants laid 188 plots for residential purpose. The plots, roads
and lanes had been demarcated on the land. The entry to that effect was
made in the revenue record. The claimants sold the plots to different
persons. The acquired land was non agricultural land. This fact was
placed on record before the Special Land Acquisition Officer. However,
the Special Land Acquisition Officer did not accept the same and held the
acquired land being agricultural land. The demanded compensation was
not awarded on the ground that the land was not developed and was
falling in the flood zone. According to the claimants, the acquired land
was not covered in flood line area, which is called as blue zone.
According to the claimants, the acquired land is situated on the outskirts
of Akola city. The area around the acquired land is fully developed. In
the surrounding area there are residential colonies. In the vicinity of the
acquired land there is Oil Industry and Krushi Utpanna Bazar Samiti
Market. There are educational and other religious institutions in the
surrounding area of the acquired land.
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4. It is stated that during the course of inquiry the Land
Acquisition Officer had called the report of valuation from the Director
of Town Planning, Akola. The Assistant Director of Town Planning had
referred the matter to the Director of Town Planning, Pune. The
Director of Town Planning, Pune by his letter dated 20.10.2000 recorded
that the acquired land had non agricultural potentiality. It is stated that
after consulting the Town Planning and Valuation department, the
SLAO prepared the proposed award dated 04.12.2000 and quantified the
total compensation of the acquired land as Rs.1,96,77,048/- and
submitted the same to the Commissioner of Amravati for approval. The
Commissioner did not approve the proposal and in turn directed the
Collector/Land Acquisition Officer to award the compensation @ of
Rs.72,400/- per hectare. The Collector/Land Acquisition Officer
accepted this compensation approved by the Commissioner without
considering the non agricultural potentiality of the acquired land. The
claimants, therefore, claimed compensation @ of Rs.175/- per Sq. Ft. by
filing the Reference.
5. The respondent No.1 State of Maharashtra through Special
Land Acquisition Officer , Akola opposed the Reference. The respondent
No.1 denied the material averments touching the quantum of the
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compensation pleaded in the claim. It is contended that the acquired
land was agricultural land and as such the compensation awarded was
just, proper and reasonable. The land was falling in flood line. There was
no scope in future for increasing the prices of the acquired land. It is
denied that the Assistant Director of Town Planning, Akola had
recommended the price @ of Rs.19,54,500/- per hectare, as stated by the
claimants.
6. The respondent No. 2 Executive Engineer, Minor Irrigation
Department, Akola, the acquiring body, has filed the written statement
and opposed the claim. According to the respondent No.2, the
compensation awarded by respondent No. 1 is just, proper and
reasonable. The claim of the claimants seeking compensation @ of
Rs.175/- per Sq. Ft is excessive and exorbitant.
7. The claimants adduced oral and documentary evidence.
Similarly, the Special Land Acquisition Officer examined himself. The
learned Additional District Judge on consideration and analysis of the
evidence found that the compensation awarded by the respondent No.1
SLAO was not just, proper and reasonable and therefore, awarded the
compensation @ of Rs.100/- per Sq. Ft. for the plot area admeasuring
FA 643.2006+1(J).odt
359684.44 Sq.Ft., @ of Rs.50/- per sq.ft for open belt area, admeasuring
108501.12 sq.ft and @ of Rs.25/- per sq.ft. for the plot area in balance
created due to division, admeasuring 28809.84 sq.ft. The claimants,
being aggrieved by partly allowing the Reference, has come before this
Court in appeal. The respondent No.1, the State, represented through
the Land Acquisition Officer being aggrieved by the enhancement in the
compensation has also come in appeal.
8. We have heard the learned Senior Advocate for the claimants
and the learned Assistant Government Pleader for the State authorities in
both the appeals. Perused the record and proceedings.
9. In view of the facts and circumstances of the appeals,
following points fall for our determination and we record our findings
thereon for the reasons to follow:
i] What would be the market price of the acquired ...As awarded by
the Reference
land at the time of the acquisition ? Court.
FA 643.2006+1(J).odt
ii] Whether the enhancement made in the
compensation @ of Rs.100/- per Sq. Ft. for the
plot area admeasuring 359684.44 Sq.Ft., @
Rs.50/- per sq.ft for open belt area, admeasuring
108501.12 sq.ft and @ Rs.25/- per sq.ft. for the
plot area in balance created due to division,
admeasuring 28809.84 sq.ft., is just, proper and
reasonable ? ......Yes
iii] What order ? As per final
order
10. The learned Senior Advocate Shri R. L. Khapre submitted
that the claimants have proved that the Survey Nos. 6, 7 and 60 were
converted to non-agricultural use vide order dated 03.03.1983. The
learned Senior Advocate submitted that the non agricultural assessment
was done by the authority and the tax for the year 1997-98 to 2001-02
has been recovered. The learned Senior Advocate submitted that in view
of this Rule 4(1)(c) of the Maharashtra Land Revenue (Conversion of Use
of Land and Non Agricultural Assessment) Rules, 1969 (For short "Rules
of 1969") would not be attracted. The learned Senior Advocate further
submitted that this stand of the claimants has been further fortified by the
order passed by the Commissioner, Amravati, Division Amravati, setting
aside the order passed by the Collector dated 06.08.2004, whereby the
Collector had granted a permission to review the N.A. order dated
FA 643.2006+1(J).odt
03.03.1983. In the submission of the learned Senior Advocate, therefore,
for the purpose of quantifying the compensation the acquired land was
rightly held to be non agricultural land by the Reference Court. The
learned Senior Advocate submitted that after conversion of the land to
non agricultural use, the sanctioned layout map was prepared by the
authority. The learned Senior Advocate submitted that the acquired land
was situated in the prime developed locality. The learned Senior
Advocate pointed out from the record that Survey No. 7 was reserved for
development of residential tenaments by Nagpur Housing and Area
Development Board vide gazette notification dated 11.10.1984. The
learned Senior Advocate submitted that in the master plan of Akola City,
the acquired land was not shown in a blue zone as sought to be contended
by the respondents. The learned Senior Advocate pointed out that to
establish this fact the map produced on record was not drawn by the
Town Planning Authority as per the provisions of Maharashtra Regional
Town Planning Act, 1966 (For short "MRTP Act"), but it was prepared
by the Irrigation Department of the State of Maharashtra. The learned
Senior Advocate submitted that there is no substance in the arguments of
the respondents on this count.
FA 643.2006+1(J).odt
11. The learned Senior Advocate submitted that apart from the
proof of the fact that the acquired land was non agricultural land, situated
in the developed area, the Reference Court has not awarded the enhanced
compensation, as claimed by the claimant. The learned Senior Advocate
submitted that on the basis of the price of the similarly situated lands
quoted in the four sale deeds, relied upon by the claimants, the learned
Reference Court ought to have adhered to the rule of drawing the average
price on the basis of the sale deeds. In the submission of the learned
Senior Advocate, if this rule is applied, then the claimants would be
entitled to get compensation @ of Rs.121.25 per Sq. Ft. The learned
Senior Advocate submitted that the claimants have proved that they are
entitled to get enhanced compensation, as claimed in the Reference. The
learned Senior Advocate submitted that all the objections raised by the
respondents have been rejected by the learned Reference Court. The
learned Senior Advocate submitted that there is no substance in any of
the objections raised by the respondents in the appeal filed, challenging
the judgment and award passed by the Reference Court. The learned
Senior Advocate, in support of his submissions noted above, relied upon
the following decisions :
1] Chimanlal Hargovinddas .vs. Spl. Land Acquisition Officer,
Poona and another, reported in (1988) 3 SCC 751
FA 643.2006+1(J).odt
2] Vijaysingh Liladhar .vs. Spl. Land Acquisition Officer
reported in (1988) 3 SCC 760.
3] The General Manager, Oil & Natural Gas Corpn. Ltd. .vs.
Rameshbhai Jivanbhai Patel and another,
reported in 2008(6) All M.R. 491.
4] Mahamaya Gen. Finance Co. Ltd. .vs. State of Uttar Pradesh and
others, reported in 2014 (5) MDSC 342 : 2014 (6) SCALE 576
5] Mehrawal Khewaji Trust (Registered), Faridkot and others .vs.
State of Punjab and others, reported in (2009) 11 SCC 141.
6] Ali Mohammad Beigh .vs. State of Jammu and Kashmir,
reported in 2017 All SCR 813.
12. The learned AGP submitted that the case of the claimants
that the acquired land was converted to non agricultural use cannot be
accepted. The learned AGP submitted that even if it is assumed for the
sake of argument that in the year 1983 the land was converted to non
agricultural use, there is no evidence to prove that this order was
extended beyond one year inasmuch as the land was not actually used for
NA purpose. The learned AGP relied upon the provisions of Rule 4(1)
(c) of the Rules of 1969 to buttress his submission. The learned AGP
submitted that the respondents by adducing cogent evidence has proved
that the acquired land was falling in the blue zone. The learned AGP
submitted that, therefore, there was no chance of development of the said
FA 643.2006+1(J).odt
land. The learned AGP submitted that there is hardly any evidence to
prove that after the alleged conversion of the land to the non agricultural
use there was any development or sale of the plots from the land as well as
in the vicinity. The learned AGP submitted that the land was falling
outside the city of Akola and therefore, had no prospects of development
in future. The learned AGP submitted that the sale instances relied upon
by the claimants cannot be taken into consideration for the purpose of
determining the compensation of the acquired land. According to the
learned AGP, considering the proposal for acquisition of the land, the
inflated prices were shown in the sale deeds. Besides, the learned AGP
submitted that the sale instances relied upon are in respect of small track
of the land and therefore, the same cannot be made the basis to determine
the compensation in this case. The learned AGP submitted that out of
four sale deeds relied upon by the claimants, three sale deeds are in favour
of the business concerns of the claimants. The learned AGP submitted
that the learned Reference Court has committed a mistake in granting the
enhancement in the amount of the compensation. The learned AGP
submitted that the enhancement in the compensation granted by the
Reference Court is excessive and exorbitant. In the submission of the
learned AGP, the judgment and award deserves to be set aside. The
FA 643.2006+1(J).odt
learned Additional Government Pleader, in support of his submissions,
relied upon following decisions :
1] State of Maharashtra .vs. Digambar Bhimashankar Tandale and
others, reported in (1996) 2 SCC 583
2] Chimanlal Hargovinddas .vs. Spl. Land Acquisition Officer,
Poona and another, reported in (1988) 3 SCC 751
3] Spl. Land Acquisition Officer and another .vs. Sidappa Omanna
Tumari and others, reported in 1995 Supp. (2) SCC 168
13. The Reference Court has accepted the case of the claimants
that in the year 1983 the acquired land was converted to non-agricultural
purpose. This finding is assailed on the ground that there is no evidence
to show that the land was either converted to the actual non agricultural
purpose or the order approving the non agricultural use of the land, in the
absence of putting the land to non agricultural purpose, was extended by
the Collector. It is pointed out that in the absence of material on record
it has to be presumed that the N.A. permission had lapsed after expiry of
one year from the date of the order. In this connection reliance is placed
on Rule 4(1)(c) of the Rules of 1969. Perusal of the judgment and award
passed by the Reference Court would show that the evidence on record
was found sufficient to accept the case of the claimants on this count.
The copy of the order of conversion of land to non agricultural purpose
FA 643.2006+1(J).odt
is at Exh.45. It was passed on 03.03.1983 in Revenue case No. NAP-34/
Akoli Khurd/3/82-83. In order to substantiate this contention, non
agricultural assessment tax receipts for the year 1983-84 and 1999-2000
have been placed on record at Exhs. 47 and 48. The receipts are dated
26.02.1985 and 21.12.1999, respectively. Perusal of Exhs. 47 and 48
would show that a specific reference of above case number was made
therein. There is no challenge to these receipts. In the receipts, the plot
numbers were mentioned. It is, therefore, apparent on the face of the
record that on 26.02.1985 and 21.12.1999, the competent authority
accepted the non agricultural tax in respect of the plots, covered under
the acquired land, from the claimants.
14. It is further pertinent to note that witness No.1, examined
by the claimants, has produced on record NA order which clearly proves
that Sub Divisional Officer, Akola before granting NA permission had
sought the opinion of the Assistant Director of Town Planning, Akola.
The record reveals that Assistant Director of Town Planning, Akola
approved the layout after considering the relevant factors vide his letter
No. TPAK/CONV/Akoli/Akola/4824 dated 02.12.1982. Further
perusal of this letter would show that the Assistant Director of Town
Planning, Akola had granted permission for conversion of the land and
FA 643.2006+1(J).odt
for layout of residential plots.
15. PW-1 has deposed that after receiving the permission from
Sub Divisional Officer, Akola, plots, roads and service lanes had been
demarcated on the land. The plots were sold. In order to substantiate this
statement, he has produced on record four sale deeds of different plots.
Those sale deeds are marked as Exhs. 75 to 78. Sale Deed at Exh. 75 is in
respect of plot No. 78 belonging to one Usha Santosh Gode in favour of
Ashok Krushnarao Sapkal. The sale deed is dated 12.02.1999. Exh. 76 is
the sale deed of plot No.58 from Survey Nos. 6, 7 and 60 of Akoli Khurd,
dated 04.05.1999. Exh. 77 is the sale deed of plot No. 117 from Survey
Nos. 6, 7 and 60 of Akoli Khurd, dated 04.05.1999. Exh. 78 is the sale
deed of plot No. 50 from survey No. 7/2 of Akoli Khurd, dated
11.05.1999. The above sale deeds would show that after approval of
residential layout plan by the competent authority, the plots were sold.
The plots as can be seen from the record were sold after layout
development. At this stage it is further pertinent to note that all the
above plots from the sanctioned layout had been sold prior to issuance of
notification dated 03.06.1999 under Section 4 (1) of the Acquisition Act.
In our view, this fact apart from supporting the contention of the
claimants that the land was converted to NA purpose, proves that there
FA 643.2006+1(J).odt
was proper development on the plots and in the surrounding areas.
16. There is one more important document to substantiate this
contention of the claimants. It is at Exh. 105. Exh. 105 is the order
dated 17.12.2005 passed by the Commissioner, Amravati Division,
Amaravati. The record reveals that the respondent No.2 had applied to
the Sub Divisional Officer, Akola for review of the NA permission
granted in favour of the claimants. The Sub Divisional Officer sought the
permission of the Collector, Akola for review of the NA permission. The
Collector Akola granted permission to review the NA permission granted
in favour of the claimants. The claimants preferred the appeal before the
Commissioner, Amravati and challenged the said order. The
Commissioner, Amravati, Division Amravati set aside the permission
granted by the Collector to review the NA permission on the ground that
the land was converted to NA purpose in 1983 and as such, the
permission granted to review the said permission after 19 years was
illegal. This is one more document to substantiate the contention of the
claimants.
17. The claimants have relied upon a notification dt. 21.09.1984
FA 643.2006+1(J).odt
published in Government Gazette on 11.10.1984 to substantiate the
claim that the land from Survey No. 7 was reserved for development of
residential tenaments for the middle income group, higher income group
and development of the area. It is at Exh.67. The said survey No. 7 was
reserved for the above purpose, on representation from the Maharashtra
Housing and Area development Authority. In our opinion, this is one
more important document to substantiate the contention of the claimants
that the land was reserved for development of residential tenaments. It is
seen on perusal of the evidence of witness No.1 for respondent no.1 that
there is no answer to this document. This document has remained un-
rebutted. In our opinion, the objection raised on behalf of the
respondents relying upon Rule 4(1)(c) of the Rules of 1969 will have to
be considered in the above background. In our view, if the said objection
is considered keeping in mind the above voluminous material it would
not be of any consequence as well as the same would not survive as well.
The oral and documentary evidence adduced by the claimants is
sufficient to accept the contention of the claimants that the land was
converted to NA purpose, and it was fully developed. In our view,
therefore, the Reference Court was right in accepting the contention of
the claimants that the acquired land, before Section 4 notification, was
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converted to NA purpose. We do not see any reason to disagree with this
finding of fact recorded by the Reference Court.
18. The next ground raised by the respondents to challenge the
award is that the acquired land falls in blue zone namely the flood
affected zone and therefore, the same had no NA potential and scope for
development in future. In order to substantiate this contention, reliance
has been placed on the map drawn by respondent No.2. The learned
Senior Advocate submitted that this map drawn by the respondent No.2
has no legal sanctity. Witness No.1 for respondent no.1, the Special Land
Acquisition Officer, in his evidence has clearly admitted that there is no
authenticated map on record of land acquisition case to establish that
Survey Nos. 6 and 7 are on the river bank, inside the flood protection
wall constructed by the respondent No.2. It is to be noted that the
competent authority, to draw such a plan or master plan, is constituted
under MRTP Act. Section 14 of the MRTP Act provides for drawing the
master plan. As per Section 14(j) and Section 22 (j) of the MRTP Act,
the master plant must show the flood control area which is popularly
known as blue zone. There is no such master plan, either prepared or
placed on record by the respondents. On the contrary, the master plan
produced on record clearly indicates that the acquired land is situated in
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orange zone. In our view, therefore, this contention of the respondents
cannot be accepted. The Reference Court has rejected this contention of
the respondents. We fully agree with the reasons recorded by the
Reference Court on this count as well.
19. Mr. Khapre, learned Senior Advocate, pointed out that the
proposed award prepared by the learned Land Acquisition Officer was
submitted to the Commissioner, Amravati Division, Amravati for
approval and direction. It is pointed out that the Commissioner,
Amravati did not approve the award as it is. He modified the same and
drastically brought down the quantum of compensation proposed by the
Land Acquisition Officer. The learned Senior Advocate submitted that
the Commissioner had no such power. It is submitted that the power of
the Commissioner to grant or refuse approval is clearly administrative. In
our opinion, this grievance of the claimants seems to have been taken care
of by the order of the Hon'ble Supreme Court, passed on 12.02.2004 in
Civil Appeal No. 2045/2003. Perusal of the said order would show that
the claimants being aggrieved by the modification of the proposed award
by the Commissioner, Amravati Division, Amravati had preferred writ
petition in this Court. This Court dismissed the writ petition. The order
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passed in the writ petition was challenged in the aforesaid Civil Appeal
before the Hon'ble Supreme Court. The Hon'ble Supreme Court did not
interfere in the order passed by this Court, but made certain observations.
The Hon'ble Supreme Court has observed that all the questions raised in
the appeal could be available to the claimants before the Reference Court.
The claimants consistent with the observation, raised all the available
questions before the Reference Court. It is pertinent to mention at this
stage that all the questions raised by the claimants on the aforesaid legal
points have been specifically dealt with by the Reference Court and the
compensation has been enhanced. Learned Senior Advocate, relying
upon the decision in the case of Vijayadevi Navalkishor Bhartia and
another .vs. Land Acquisition Officer and another , reported in 2003 AIR
SCW1807 SC, submitted that the power of the Commissioner to grant or
refuse approval is purely administrative. The Commissioner cannot sit in
appeal against the proposed award. It is to be noted that the Hon'ble
Supreme Court in Vijayadevi Bhartia's case (supra) held that the
Commissioner has either to grant or refuse approval. The Commissioner
cannot sit in appeal against the proposed award and modify the same.
However, the Hon'ble Supreme Court has noticed that the view taken in
the decision of State of Bihar and others .vs. Prem Kumar Singh and
FA 643.2006+1(J).odt
others, reported in (1998) 2 SCC 573 ; and other judgments are
somewhat in conflict and therefore, the issue has been referred to the
Larger Bench. In the above background, the questions raised in this
appeal have to be addressed on the premise that no prejudice has been
caused to the claimants inasmuch as, the claimants have raised all these
questions in Reference. All the questions have been decided and based
on the same, the compensation has been enhanced.
20. It would, therefore, be necessary to appreciate the evidence
for the purpose of answering rival contentions on the point of just, proper
and reasonable compensation to be awarded to the claimants. In order
to prove the prominent location of the acquired land and the
development that has taken place in and around the acquired land, the
oral and documentary evidence has to be adduced by the claimants. We
have accepted the case of the claimants that the acquired land was
converted to non-agricultural use. The Reference Court has quantified
the compensation bearing in mind the nature of land as non-agricultural
land, the prominent location of the land and development taken place in
and around the acquired land. PW1 Deepakkumar Bharita and PW2
Brijmohan Modi have deposed on these aspects. It has been proved on
FA 643.2006+1(J).odt
the basis of their evidence that the acquired land, apart from being non-
agriculture land, was located near Akola city and surrounded by various
educational, commercial and other institutions. It is to be noted that in
the award passed by the SLAO, a reference has been made to the
prominent location of the acquired land. The distance of the acquired
land from various institutions of prominence and the close proximity of
the land to Akola city has been mentioned. It has been proved that on
the Northern side of the acquired land, there are police quarters known as
Rahat Nagar, Sneh Nagar and to the North-west, there is Ambedkar
Nagar, Vijay Oil Industries and Krushi Utpanna Bazar Samiti market. So
also, near the acquired land, there are Ramkrushna Vivekanand Ashram,
Maa Sharda Balak Mandir, Ramkrushna Vivekanand Sahitya Kharedi
Vikri Kendra, Saint Anne's School of Hyderabad etc. It has been proved
that temple of Lord Vyankatesh Balaji, Maratha Seva Sangh, Swami
Vivekanand High School, Jijau Vasatigruha. Vyankatesh Restaurant ,
Wholesale Grain Merchant's Housing and Commercial Complex Society
and Alankar Petrol Pump, are located in the close proximity of the
acquired land.
21. PW2 Brijmohan Modi, a registered valuer, examined by the
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claimants, has proved the Valuation Reports at Exhs.63 and 64. The map
drawn by the valuer is at Exh.83. On the basis of the evidence of PW1
and PW2, prominent location of the acquired land in close proximity of
Akola city has been proved. It has been proved that in the vicinity of the
acquired land, there has been development. There are residential and
commercial complexes. Evidence adduced in rebuttal by the respondents
is not sufficient to disprove the above aspects. The only statement
reiterated time and again by the respondents is that the acquired land
being situated on the bank of Morna river, it had no future prospects of
development. In our opinion, this contention of the respondents cannot
be accepted in view of the positive evidence adduced by the claimants.
Learned Presiding Officer of the Reference Court has accepted this
evidence. We do not see any reason to discard or disbelieve this evidence.
The material on record is not sufficient to accept the contention of the
respondents that the acquired land was falling in blue zone. It has come
on record that the land was acquired for construction of flood protection
wall. The flood protection wall has been constructed. It is, therefore,
apparent on the face of record that threat of flooding to the area has now
been diminished. In the given set of facts, it can be safely assumed that
after construction of flood protection wall, there would be no hindrance
FA 643.2006+1(J).odt
or hitch in the development of the acquired land and its surroundings.
22. It would, therefore, be necessary to decide the market price
of the land on the date of Section 4 notification. According to the
claimants, the market rate of the acquired land on the date of Section 4
notification was @ Rs.200/- per sq. ft. PW1 and PW2 have stated that
considering development in and around the acquired land, enhancement
in the compensation @ Rs.175/- per sq. ft. was necessary. It is to be
noted that considering the evidence adduced in the reference, the learned
Presiding Officer of the Reference Court came to the conclusion that the
market price of the acquired land on the date of Section 4 notification
would be Rs.100/- per Sq.ft. for the plot area, @ Rs.50/- per sq.ft for open
belt area and @ Rs.25/- per sq.ft. for the plot area in balance created due
to division. The learned Judge has recorded the reasons in support of his
finding.
23. In order to prove that the market price of the land on the
date of Section 4 notification was not less than Rs.200/- per sq.ft., the
claimants have placed on record four sale instances at Exhibits-75 to 78.
Exh.75 is the sale deed dated 12.02.1999 of plot no.78 of Akoli (Bk.)
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from survey nos.8 and 5/1. Total area of the plot was 1500 sq.ft. It was
sold @ Rs.100/- per sq.ft. It has come on record that this plot was sold by
one Usha Santoshrao Gole to Ashok Krushnarao Sapkal and Shalikram
Ramkrushna Zamre. It is to be noted that this sale transaction has been
made the basis for quantifying the enhanced compensation by the learned
Presiding Officer of the Reference Court. The vendor and vendee are not
concerned with the claimants in any manner. In our opinion, therefore,
the contention of the respondents that this sale instance was brought into
existence to claim excessive and exorbitant compensation by the
claimants cannot be accepted. On a perusal of the oral evidence adduced
by the claimants and supporting documentary evidence, we do not see
any reason to discard and disbelieve this sale instance. As far as this sale
instance is concerned, relying upon the decision in State of Mah. .vs.
Digambar Bhimashankar Tandale (supra), the learned AGP submitted
that it is in respect of small piece of land and therefore, the same cannot
be made basis to determine the market value of the acquired land. In our
view, this contention cannot be accepted. There is ample evidence on
record that residential layout plan was sanctioned by the competent
authority, after the land was put to non-agricultural use on the basis of
permission granted by the competent authority. It is, therefore, apparent
FA 643.2006+1(J).odt
that for the purpose of deciding market value of the different plots from
layout map of the acquired land, the sale deed (Exh.75) of plot no.78,
which is from sanctioned layout, can be relied upon. We are, therefore,
not prepared to accept this submission. The sale instance is genuine. On
the basis of the evidence, the contention of the respondent-authorities
that this sale instance is not genuine and bona fide, cannot be accepted.
24. Exh.76 is the sale deed of plot no.58 from survey Nos.6, 7
and 60 of Akoli (Kh.), dated 04.05.1999. The plot was sold at Rs.100/-
per sq. ft. The sale deed at Exh.77 is in respect of plot no.117 from
survey Nos.6, 7 and 60 of Akoli (Kh.), dated 04.05.1999. The plot was
sold at Rs.110/- per sq.ft. Exh.78 is the sale instance of plot no.50 from
survey no. 7/2 of Akoli (Bk.), dated 11.05.1999. The price of the land
quoted in the sale deed was Rs.175/- per sq.ft. As far as these sale deeds
are concerned, apart from the above objection, the another objection
raised is that the sale deeds were executed by the members of the family
of the claimants in favour of business concerns of the family of the
claimants. Consistent with this defence, a suggestion has been put to the
witnesses on the basis of the material. Even if it is assumed for the sake of
arguments that the sale instances at Exhs. 76, 77 and 78 are in favour of
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business concerns of the family of the claimants, the same would not be
sufficient to set aside the award passed by the learned Presiding Officer of
the Reference Court, quantifying compensation @ Rs.100/- per sq. ft.
25. It is further pertinent to note that the sale instance at Exh.76
is dated 04.05.1999, in respect of plot no. 58 from survey nos.6, 7 and 60
of Akoli (Kh.). The said plot was sold @ Rs.100/- per sq.ft. We do not
see any reason to discard and disbelieve this sale instance. The learned
Senior Advocate submitted that the market price of the plots from four
sale deeds would be required to be taken into consideration to draw the
average market price of the acquired land. Perusal of the judgment and
award of the Reference Court would show that this submission was not
accepted. On re-appreciation of the evidence, we are of the opinion that
this submission cannot be accepted. The learned Presiding Officer of the
Reference Court has given a thoughtful consideration to the location of
the land. The learned Presiding Officer of the Reference Court, while
determining the market price of the acquired land, took into
consideration the fact that the acquired land does not fall in blue zone,
however, at the same time while quantifying the enhanced compensation
has taken into consideration the fact that the land is situated at some
FA 643.2006+1(J).odt
distance from the bank of Morna river and as such considered the same as
an important factor against the claimants. Based on this factor, the
enhancement sought for has not been granted in entirety. We fully agree
with this finding. In our view, keeping in mind the evidence on record,
the challenge raised by both the parties by filing separate appeals to the
impugned judgment and award cannot be sustained. The Reference
Court awarded enhanced compensation for plot area admeasuring
359684.44 sq. ft. @ Rs.100/- per sq.ft., The reference Court also awarded
enhanced compensation for area under open belt, admeasuring
108501.12 sq.ft. @ Rs.50/- per sq.ft. and for balance area of divided plots
admeasuring 28809.84 sq.ft. @ Rs.25/- sq. ft.. In our view, the above
enhancement made in the compensation of the acquired land is just,
reasonable and proper. On the basis of available evidence, the enhanced
compensation more than what has been granted by the Reference Court
could not be granted. The Reference Court has not committed any
mistake and error in arriving at said market price of the acquired land.
26. Learned AGP relying upon the judgments of the Coordinate
Bench of this Court in First Appeal No. 1210/2008 and First Appeal No.
06/2009, dated 17.06.2013 submitted that the land acquired in these two
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appeals was part of the same award. It is submitted that in these two
appeals, the Coordinate Bench of this Court had set aside award granting
enhancement in the amount of compensation @ Rs.100/- per sq.ft. by the
Reference Court. The learned A.G.P. submitted that therefore, the view
taken by the Coordinate Bench in the above appeals would be required to
be considered while deciding the appeals on hand. Learned Senior
Advocate for the claimants submitted that the observations made in the
judgment by the Division Bench while deciding the appeals would itself
be sufficient to reject the submission. Learned Senior Advocate pointed
out that the Coordinate Bench has observed that the land bearing Survey
No.1, the subject matter in the appeals, was not comparable with the land
acquired in this case. We have minutely perused the judgment. Perusal of
the judgment would reveal that the lands in the appeals before the
Coordinate Bench were sought to be compared with the acquired lands in
the appeals on hand. The Coordinate Bench has categorically held that
the lands in appeals on hand are advantageously placed inasmuch as the
same are far away from bank of river Morna. The land involved in the
appeals before the Coordinate Bench was Survey No.1 and it was found
to be on the extreme bank of river Morna. The sale instances sought to
be relied upon in the appeals before us were not found to be comparable
FA 643.2006+1(J).odt
by the Coordinate Bench. In our opinion, relying upon the judgment of
the Coordinate Bench, the learned A.G.P. is not in a position to make
good his point. The observations made in the judgment by the
Coordinate Bench would itself be sufficient to conclude that the lands in
the appeals on hand cannot at all be compared with the lands involved in
those appeals. Therefore, the contentions based on the judgment of the
Coordinate Bench, cannot be accepted.
27. Learned Senior Advocate for the claimants submitted that
the compensation has not been awarded in respect of the open space area,
area covered in roads and lanesIt is pointed out that in this case, the open
space and the area covered in roads is 23902.95 sq. mtr. Learned Senior
Advocate submitted that since the land is used by the government for its
own purpose, the Government cannot enrich itself without paying any
compensation to the appellants as ownership of the said land, even after
development of a layout, remains with the appellants. In order to
substantiate this submission, learned Senior Advocate has placed heavy
reliance on a decision in the case of State of Maharashtra .vs.
Bramhashankar Sidramappa Chippa, reported in 2009 (4) All M.R. 333.
In this case, it is held that no existing law empowers the Planning
FA 643.2006+1(J).odt
Authority or Executive Officer of any Municipality or Municipal
Corporation to impose a condition that an open land in a layout required
to be kept as such for the benefit of the plot holders in the layout or the
general public would vest in the Planning Authority or Municipality or
the Municipal Corporation free of cost. It is held that in the absence of
any specific power in the Act so to do, a condition cannot be imposed that
open space in the layout shall be transferred by the owner to the Planning
Authority/Municipality, free of costs. In absence of any such powers and
authority in law, an order requiring the owner to transfer the ownership
of any land or open space to the Planning Authority/Municipality, would
be void and hit by Article 300-A of the Constitution of India. Learned
Senior Advocate, therefore, submitted that in respect of 23902.95 sq.
mtr. area of land, the compensation ought to have been awarded @
Rs.618.93 per sq. mtr.
28. Learned Asst. Government Pleader submitted that this
factual contention is raised for the first time in this appeal and therefore,
the same deserves to be rejected. Learned AGP submitted that in order to
record a finding on such point, the material fact must be pleaded and
proved on the basis of the evidence. Learned AGP submitted that in
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absence of pleading of material fact and evidence to prove the said fact,
the decision in the case of State of Maharashtra .vs. Bramhashankar
Sidramappa Chippa (supra) would not be applicable to this case.
29. We have perused the record and proceedings. It seen that
the relevant facts qua the question raised at this stage have not been
pleaded in the reference. Similarly, there is no whisper about this issue in
the appeal memo. The learned Senior Advocate, in all fairness, in his
synopsis has stated that separate demarcation of the land covered by open
layout land and road is not shown. It is stated that however, this can be
calculated from the pleadings of the parties and particularly, the total area
acquired by the respondents. It is pertinent to mention at this stage that
the claimants have examined PW2 M.B. Modi, registered Valuer. The
pleadings and the evidence of the witnesses and particularly, the evidence
of the expert is silent on these aspects. In our opinion, the question of
fact has to be proved by leading evidence. The question of fact raised for
the first time in appeal without pleading, cannot be gone into and
decided. The adjudication of such a question of fact on the basis of such
submission would not only be against the provisions of law, but would
also result in prejudice to the opponents.
FA 643.2006+1(J).odt
30. In our opinion, adjudication of this issue without a pleading
of material fact and the evidence to prove it, at this stage, would be
against the provisions of law and the principles of natural justice as well.
It would, with certainty, cause prejudice to the respondents. In our view,
therefore, reliance placed on the decision in the case of State of
Maharashtra .vs. Bramhashankar Sidramappa Chippa (supra) is
misplaced. In this case, it is not the case of the claimants that any
condition has been imposed by the authorities to acquire the open
area/roads and lanes without paying any compensation to the claimants.
Therefore, this contention deserves rejection.
31. Insofar as the judgments relied upon by the learned Senior
Advocate for the appellants, are concerned, in Chimanlal Hargovinddas's
case (supra), it is held that when large block of land is required to be
valued, appropriate deduction has to be made for setting aside land for
carving out roads, leaving open spaces and plotting out smaller plots
suitable for construction of buildings. The extent of the area required to
be set apart in this connection has to be assessed by the Court having
regard to the shape, size and situation of the concerned block of land etc.
It is held that there cannot be any hard and fast rule as to how much
FA 643.2006+1(J).odt
deduction has to be made to account for this factor. In the appeals on
hand, the Reference Court has taken all these factors into consideration
and determined the market price of the land.
32. In Vijaysingh Liladhar's case (supra), it is held that the value
of the land has to be ascertained on the basis of present developed value
of lands, which the land in question would fetch after the estimated
period. In the appeals on hand, sale instances of similarly situated land/
plots have been taken into consideration.
33. In the case of the General Manager, ONGC .vs. Rameshbhai
Jivanbhai Patel's case (supra), it is held that the Reference Court can rely
on the Award passed in respect of land in adjacent village. The Court has
to bear in mind the close proximity between two villages. Such award can
be made basis for determining market value in absence of comparative
sale in village of acquisition. In the appeals on hand, the sale instances of
the adjoining plots of the acquired land and one sale deed of the plot from
acquired land has been taken into consideration. It was, therefore, not
necessary to look into the sale instances from adjoining village and/or the
award passed in respect of the land in adjoining village.
FA 643.2006+1(J).odt
34. In Mahamaya Gen. Finance Co. Ltd.'s case (supra), it is held
that the Sale Deeds in respect of adjoining land has to be taken into
consideration. It is held that such sale deeds cannot be rejected on the
ground that the claimant had prior knowledge about proposed acquisition
and on that basis he executed a sale deed in hurried manner. It is held
that such a vital evidence should not be rejected on the basis of such
surmise and conjectures. In the appeals on hand, the specific contention
of the respondents that the sale deeds had been brought into existence to
show inflated price of the land/plots, has been dealt with. The sale deeds
executed prior to the Section 4 notification have been taken into
consideration to quantify the compensation.
35. In Mehrawal Khewaji Trust's case (supra), it is held that
where sale deeds pertaining to different transactions are relied on on
behalf of the State, the transaction representing the highest value should
be preferred to the rest, unless there are strong circumstances justifying a
different course. It is held that it is not desirable to take an average of
various sale deeds placed before the authority/Court for fixing fair
compensation. In the appeals on hand, only two sale deeds have been
taken into consideration. It has been found in this case that relying upon
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the remaining two sale deeds, it would not be desirable to draw average
price of the acquired land based on all the sale deeds.
36. In Ali Mohd. Beigh and others's case (supra), it is held that
where the lands are more or less situated nearby and when acquired lands
are identical and similar and the acquisition is for the same purpose, then
there is no justification to discriminate between land owners to pay
compensation, unless there are strong reasons to do so. In the appeals on
hand, the sale deeds of the similarly situated lands have been taken into
consideration. The claimants, on the basis of the sale deeds, have been
found entitled to get the compensation as quantified by the learned
Reference Court, which according to us, is justified, proper and
reasonable.
37. Insofar as the judgments relied upon by the learned
Additional Government Pleader, in support of his submissions, are
concerned, in State of Mah. .vs. Digambar Bhimashankar Tandale's case
(supra), it is held that determination of compensation on square foot basis
for large extent of land is illegal, even though the land is converted for
non-agricultural purpose and there is no development in that area and no
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potential value of the lands. In the appeals on hand, the land apart from
being converted to NA purpose, there has been development in and
around the acquired land. Similarly, the quantification of compensation
on square feet basis is fully justified inasmuch as the acquired land is not a
large tract.
38. In Chimanlal Hargovinddas's case (supra), it is held that the
land situated in interior in large undeveloped area will have lower value
than land situated near developed area. It is held that some guesswork is
permissible in determining the market value of the land on this basis. In
the appeals on hand, the acquired land is situated in the midst of
developed area. It has been established that the lands from the sale
instances, relied upon by the claimants, and the acquired land are
similarly situated. All these facts have been taken into consideration
while quantifying the compensation in this case.
39. In S.L.A.O. and another .vs. Sidappa Omanna Tumari's case
(supra), it is held that sale price of small extent of land should not
ordinarily be made the basis for determination of market value of large
extent of land. It is held that however, such price can be relied on, if the
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small land is a portion of the large extent of land itself. It is held that
even then all relevant factors, which would reduce the value of the large
extent of land, should be taken into account. In the appeals on hand, the
claimants have proved that layout plots have been sanctioned by the
authority after the land was converted to NA purpose. The sale instances,
which have been made the basis to quantify the compensation, are in
respect of the plots of the same area. The plots from the sale instances are
comparable with the acquired land/plots from the acquired land. All
these facts have been proved and taken into consideration.
40. In our opinion, enhancement in the compensation, awarded
by the Reference Court, is just, proper and reasonable. No case has been
made out by the claimants, by placing reliance on the reported judgments
cited supra, to grant them compensation at higher rate than one awarded
by the Reference Court. Similarly, no case has been made out by the
respondents, on the basis of the judgments cited supra, to deny enhanced
compensation at the rate quantified by the Reference Court. In our view,
therefore, there is no substance in both the appeals. The appeals,
therefore, deserve to be dismissed. Hence, the following order :
FA 643.2006+1(J).odt
ORDER
First Appeal No.643 of 2006 filed by the claimants and First
Appeal No. 541 of 2007 filed by the State, stand dismissed. No order as
to the costs.
(G. A. SANAP, J.) (SUNIL B. SHUKRE, J.)
Diwale
Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:27.09.2022
18:09
