Bombay High Court
Gmidc Aurangabad Thr The Exe Engineer ... vs The State Of Maharashtra And Others on 20 August, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
2024:BHC-AUG:18762-DB
FA Nos.1215 of 2014 and ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1215 OF 2014
WITH
CIVIL APPLICATION NO.1298 OF 2024
1. Smt. Hema Gopinath Deshpande
Age : 68 ears, Occ. Household,
R/o. Osmanabad
2. Shirish Gopinath Deshpande,
Age:Major, Occ. Agri.,
r/o. Osmanabad ..Appellants
Vs.
1. The State of Maharashtra
Through the Collector,
Osmanabad
2. The Special Land Acquisition Officer-I,
Osmanabad,
3. The Executive Engineer,
Minor Lift Irrigation Division,
Osmanabad and ors. ..Respondents
AND
FIRST APPEAL NO.1225 OF 2014
WITH
CIVIL APPLICATION NO.1283 OF 2024
Shirish Gopinath Deshpande,
Age : Major, Occ. Agri.,
r/o. Osmanabad ..Appellant
Vs.
1. The State of Maharashtra,
Through the Collector,
Osmanabad
2. The Special Land Acquisition Officer,
Osmanabad
2 FA Nos.1215 of 2014 and ors
3. The Executive Engineer,
Lift Irrigation Division,
Osmanabad ..Respondents
AND
FIRST APPEAL NO.1150 OF 2014
Venkatesh s/o. Sahebrao (Raje) Nimbalkar,
Age : 45 years, Occ. Agri.,
r/o. Ganesh Nagar, Osmanabad ..Appellant
Vs.
1. The State of Maharashtra,
Through the Collector,
Osmanabad
2. The Special Land Acquisition Officer No.1,
Osmanabad
3. The Executive Engineer,
Minor Irrigation Division,
Osmanabad ..Respondents
AND
FIRST APPEAL NO.1151 OF 2014
Ajitsingh s/o. Sahebrao Raje,
Age : 50 years, Occ. Occ. Agri.,
r/o. Ganesh Nagar, Osmanabad,
Tq. and Dist. Osmanabad ..Appellant
Vs.
1. The State of Maharashtra,
Through the Collector,
Osmanabad,
Tq. and Dist. Osmanabad
2. The Special Land Acquisition,
Officer No.1, Osmanabad,
3. The Executive Engineer,
Minor Irrigation Division,
Osmanabad,
Tq. and Dist. Osmanabad and ors. ..Respondents
3 FA Nos.1215 of 2014 and ors
AND
FIRST APPEAL NO.670 OF 2018
WITH
CIVIL APPLICATION NO.9084 OF 2015
1. Godawari Marathwada Irrigation
Development Corporation, Aaurangabad,
through Executive Engineer,
Lift Irrigation Division, Osmanabad
2. The State of Maharashtra,
Through the Collector, Osmanabad
3. The Special Land Acquisition Officer No.1,
Osmanabad ..Appellants
Vs.
1. Hema Gopinathrao Deshpande,
Age : Major Occ. Agri.,
r/o. Osmanabad
(died through L.Rs. already on record
respondent no.2 - Shirish, as per Registrar's
order dated 19.12.2022)
2. Shirish Gopinathrao Deshpande,
Age : Major, Occ., Agri.,
r/o. Osmanabad ..Respondents
AND
FIRST APPEAL NO.671 OF 2018
WITH
CIVIL APPLICATION NO.9087 OF 2015
1. Godawari Marathwada Irrigation
Development Corporation, Aaurangabad,
through Executive Engineer,
Lift Irrigation Division, Osmanabad
2. The State of Maharashtra,
Through the Collector, Osmanabad
4 FA Nos.1215 of 2014 and ors
3. The Special Land Acquisition Officer No.1,
Osmanabad ..Appellants
Vs.
Shirish Gopinath Deshpande,
Age : Major, Occ. Agri.,
r/o. Osmanabad ..Respondents
AND
FIRST APPEAL NO.669 OF 2018
WITH
CIVIL APPLICATION NO.9078 OF 2015
1. Godawari Marathwada Irrigation
Development Corporation, Aaurangabad,
through Executive Engineer,
Lift Irrigation Division, Osmanabad
2. The State of Maharashtra,
Through the Collector, Osmanabad
3. The Special Land Acquisition Officer No.1,
Osmanabad ..Appellants
Vs.
1. Ajitsinh s/o. Sahebrao Raje,
Age : Major, Occ. Agri.,
r/o. Osmanabad
2. Sow. Vijaya w/o. Ujjwalsinh Raje,
Age : 53 years, Occ. Household,
3. Ajinkya s/o. Ujjwalsinh Raje,
Age : 26 years, Occ. Agri. and Business,
4. Prasad s/o. Ujjwalsinh Raje,
Age:35 years, Occ. Agri. and Business
All r/o. Patil Niwas, Ganesh Nagar,
Osmanabad
5 FA Nos.1215 of 2014 and ors
5. Venkatesh Sahebrao Raje (Nimbalkar),
Age : 51 years, Occ. Agri.,
r/o. Ganesh Nagar, Solapur Road,
Osmanabad ..Respondents
AND
FIRST APPEAL NO.668 OF 2018
WITH
CIVIL APPLICATION NO.9081 OF 2015
1. Godawari Marathwada Irrigation
Development Corporation, Aurangabad,
through Executive Engineer,
Lift Irrigation Division, Osmanabad
2. The State of Maharashtra,
Through Collector, Osmanabad
3. The Special Land Acquisition Officer No.,1
Osmanabad ..Appellants
Vs.
1. Venkatesh Sahebrao (Raje) Nimbalkar,
Age : Major, Occ. Agri.,
r/o. Osmanabad
2. Sow. Vijaya w/o. Ujjwalsinh Raje,
Age : 53 years, Occ. Household,
3. Ajinkya s/o. Ujjwalsinh Raje,
Age : 26 years, Occ. Agri. and Business,
4. Prasad s/o. Ujjwalsinh Raje,
Age:35 years, Occ. Agri. and Business
All r/o. Patil Niwas, Ganesh Nagar,
Osmanabad
5. Ajitsingh Sahebrao Raje (Nimbalkar)
Age : 52 years, Occ. Agri.,
r/o. Ganesh Nagar, Solapur Road,
Osmanabad ..Respondents
6 FA Nos.1215 of 2014 and ors
Appearance :
F.A. NO.1215/2014 WITH C.A. NO.1298/2024, FA NO.1225/2014 WITH
C.A. NO.1283/2024
Mr.A.P.Bhandari, Advocate h/f. Mr.R.R.Sancheti, Advocate for
appellants
Mr.S.G.Bhalerao, Advocate for respondent-acquiring body
Mr.N.R.Dayma, AGP for respondent - State
----
F.A. NO.1150 OF 2014 AND F.A. NO.1151/2014
Mr.R.N.Dhorde, Senior Advocate along with Mr.Sanjay Dhudhane i/b.
Mr.V.R.Dhorde, Advocate for appellants
Mr.S.G.Bhalerao, Advocate for respondent-acquiring body
Mr.N.R.Dayama, AGP for State
----
F.A. NO.668 of 2018, F.A. NO.669 of 2018, F.A. NO.670 of 2018 AND
F.A. NO.671 of 2018
Mr.S.G.Bhalerao, Advocate for appellants
Mr.R.N.Dhorde, Senior Advocate along with Mr.Sanjay Dhudhane i/b.
Mr.V.R.Dhorde, Advocate for respondent nos.1 and 5 in F.A.
no.668/2018 and F.A. No.669/2018
Mr.N.R.Dayama, AGP for respondent - State
Mr.A.P.Bhandari, Advocate h/f. Mr.R.R.Sancheti, Advocate for
respondent nos.1 and 2 in F.A. No.670/2018 and for respondent in
F.A. No.671/2018
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : JULY 26, 2024
PRONOUNCED ON : AUGUST 20, 2024
7 FA Nos.1215 of 2014 and ors
JUDGMENT (Per R.G.Avachat, J.) :
-
These appeals under Section 54 of the Land Acquisition
Act, 1894, ("the Act", for short) are decided by this common
judgment, since the challenge therein is to one and the same award
passed by the Reference Court (Civil Judge, Senior Division,
Osmanabad), on 07.12.2013, in a group of Land Acquisition
References (LARs). The first four appeals in this group of eight
appeals, have been preferred by the owners, whose lands have been
acquired by the respondent - Godawari Marathwada Irrigation
Development Corporation (acquiring body), for construction of water
storage tank, Shekapur-Dam, Dist. Oamanabad.
2. For the sake of convenience, the parties are referred to
as per their status described in the first four appeals, i.e.
appellants/land owners and respondents, collectively, as acquiring
body.
3. Learned counsel for the appellants/land owners did not
urge for enhancement of the compensation awarded by the
reference court. They have restricted their prayer for grant of
statutory benefits in the nature of interest under Section 28 of the
Act.
4. The appellants/land owners preferred Civil Applications
for production of additional evidence in the nature of certified copies
of certain sale-deeds, notification and the map indicating that the
lands acquired were brought within the limits of the Municipal
Council, Osmanabad. The applications have been supported with
affidavits. It has been averred in the applications that some of the
sale-deeds were before the reference court in connected L.A.Rs.
arising out of same acquisition proceedings.
5. Since the documents sought to be produced are certified
copies of the sale-deeds and government notification along with the
map, we allow these applications (i.e. Civil Application Nos.1298 of
2024 in F.A. No.1215 of 2014 and Civil Application No.1283 of 2024 in
F.A.No.1225 of 2014) at the first instance, for the reasons given
therein. Needless to mention, Section 51-A of the Act provides that ,
"in any proceeding under this Act, a certified copy of a document
registered under the Registration Act, 1908 (16 of 1908), including a
copy given under section 57 of that Act, may be accepted as
evidence of the transaction recorded in such document".
6. Learned counsel for the appellants/land owners would
submit that the reference court has given cogent/convincing reasons
in paragraphs 19 and 22 of its judgment for grant of compensation at
the rate of Rs.100/- per sq. ft. According to them, the reference
court ought to have granted statutory benefits in the nature of
interest under Section 28 of the Act, on the amount of compensation.
Reliance has been placed on the judgment of this court dated
06.10.2015 in First Appeal No.2237 of 2014, besides the judgment of
this court dated 02.09.2015, decided in a group of First Appeals
being First Appeal Nos.831 of 2024 and others.
7. Learned counsel for the acquiring body would, on the
other hand, submit that in view of the full-bench judgment of this
court in the case of State of Maharashtra Vs. Kailash Shiva
Rangari, 2016(4)All MR 513 the appellants/land owners are not
entitled for the component of interest under Section 34 of the Act,
more so, when the possession of the lands acquired, was taken over
even before publication of notification under Section 4 of the Act.
8. Learned counsel for the acquiring body, on the question
of quantum of compensation awarded by the reference court, would
submit that there was no scope to have comparison between the
acquired lands and the lands referred in the sale instances by the
appellants/land owners. According to him, the acquired lands were
not fit for residential, educational and commercial activities. Those
were under agricultural use at the time of acquisition. This
important aspect ought to have been considered by the reference
court while deciding the LARs. He would further submit that the
land owners incorrectly relied on the sale instances and agreement
of sale in respect of N.A. plots, when, admittedly, the acquired lands
were not converted into N.A. plots. The appellants were, therefore,
not entitled for N.A. rates. He would further submit that the
concerned L.A.O. had visited the acquired lands before passing of the
award. So, it could not be said that the award was passed without
visiting the acquired lands, because, at Exh.63, there was copy of
video-recording, showing LAO to have visited the lands before
passing of his award.
9. Learned counsel for the acquiring body would further
submit that the reference court, in paragraph 16(b) of the judgment
passed in LAR No.431 of 2008, observed that the list of sale
instances (Exh.37) is not considered by the S.L.A.O. from the same
gut no.35/1 sold at Rs.5,424/- per R in the year 2002. The lands in
the said gut number and the acquired lands are situated on either
sides of village Bembali road; but, surprisingly, while passing the
judgment, the reference court has not taken into consideration the
above sale instance and awarded compensation at the rate of
Rs.100/- per. sq. ft., i.e., Rs.1,07,600/- per R against Rs.5,424/- per R.
He, ultimately, urged for dismissal of the appeals of the land owners
and allowing of the appeals preferred by the acquiring body.
10. Considered the submissions advanced. Perused the
judgment and award impugned herein. It is reiterated that the
appellants did not claim enhancement in the quantum of
compensation awarded by the reference court.
11. We have carefully perused paragraphs 17 to 23 of the
impugned judgment and award, to find the reference court to have
given well-founded reasons for grant of compensation at the rate of
Rs.100/- per sq. ft. In paragraph 17 of the impugned judgment,
there is reference to the documents Exhs.34, 37, 38, 41 to 45,
indicating some parts of the lands acquired, have already been
converted into non-agriculture assessment (NA). It has also been
observed that NA permission was granted way back in 1989, i.e. 10-
15 years before passing of the awards. It has further been observed
that the LAO has admitted that the acquired lands were situated at a
distance of 3-4 kms. from Osmanabad town. There is on record the
Government Resolution dated 20.05.2004 (produced as additional
evidence), indicating that the acquiring lands were proposed to be
brought within the limits of the municipal area of Osmanabad. A
village map has also been produced as additional evidence to
indicate the land gut nos.308, 317/1 and 317/2 were within the
limits, but on the fringe of Osmanabad town. Admittedly, the lands
have been acquired for construction of water storage tank.
12. It is true that the sale instances, certified copies whereof
have been placed on record as additional evidence, pertain to small
piece/s of land/s. A certified copy of the registered sale deed dated
31.03.2005, pertain to the sale of 14R land from land survey no.120
for sum of Rs.16,80,000/-. The rate per sq. ft whereof comes to
Rs.112/-. This sale instance was before the reference court and
relied on in LAR No.242 of 2008 between the same parties; but the
same was not before the reference court in the present proceedings.
The reference court relied on the judgment and award passed in LAR
No.244/2008, wherein compensation was granted at the rate of
Rs.94/- per sq. ft., vide the judgment and order dated 15.09.2011,
i.e. long before the notification under Section 4 of the Act, relevant in
these appeals was published. The reference court also took the
judicial notice of the fact of inflation and dwindling value of a Rupee.
It, therefore, awarded compensation at the rate of Rs.100/- per.
sq. ft. Needless to mention, it is well established that the factual
recitals or observations made in a judgment or order are taken to be
correct unless rebutted. The burden to rebut it is on the person who
challenges it (State of Maharashtra and ors., Vs. Admane Anita Moti
and ors., AIR 1995 SC 350).
13. In short, the acquired lands were at a distance of 3-4
kms. away from the town of Osmanabad. Most of the parts of the
acquired lands were converted into N.A. assessment long before the
notification under Section 4 was published. The purpose of
acquisition is also in the mind of this court. Therefore, although
some of the parts of the land acquired was agricultural, there would
be no question of the appellants were required to spend or the
acquiring body to spare portion of the acquired land for
development, such as, roads, drainage, etc. Furthermore, way back
in 2011, the lands around the acquired lands were granted
compensation at the rate of Rs.94/- per sq. ft. There is nothing on
record to indicate the said rate or compensation to have been
reduced in appeal. We, therefore, find no reason to interfere with the
award, particularly, the rate at which the compensation has been
enhanced (i.e. Rs.100/- per sq. ft.)
Interest :-
14. It is not in dispute that the possession of the land
acquired was taken over before the notification under Section 4 of
the Act, was published. For ready reference, we refer to certain dates
relevant for the purpose:-
Date of Notification u/s.4 of the Act : 28.11.2005
Date of Possession of land :
Date of award : 11.08.2006
15. The full-bench judgment of this Court in the case of
Kailash Shiva Rangari (supra) speaks of grant of interest under
Section 34 on the amount of compensation. In paragraphs 32 of the
judgment of the full-bench, it has been observed:-
32. Keeping in view the entire scheme of the Land
Acquisition Act and the ratio of the decisions of the
Apex Court in the cases of R.L. Jain, [2004(5) ALL
MR 435 (S.C.)] and Lila Ghosh, [2004(5) ALL MR 19
(S.C.)] cited supra, the position of law can be
summarized as under:-
(i) If the possession of the land under acquisition is
taken under Section 16 of the said Act i.e. after an
award is made by the Collector under Section 11
therein, the interest would be payable under Section
34 from the date of passing of the award and we are
in agreement with such a view expressed by the
Division Bench of this Court (S/Shri N.V.. Dabholkar
and M.G. Gaikwad, JJ.) in the case of State of
Maharashtra & anr. v. Rajendra Narayanrao Gaikwad,
reported in 2008 (1) BCR 839: [2007(5) ALL MR
521].
(ii) The interest as provided under Section 34 of
the said Act shall start running from the date of
possession, only if the possession is taken by the
Collector in exercise of his powers under Section 17
of the said Act which would obviously be after
issuance of notice under Section 9(1) of the said Act.
If the possession is taken under Section 17, the
interest payable under Section 34 of the said Act shall
start running from the date of possession and not
from the date of award.
(iii) Where the possession of the land under
acquisition is taken prior to issuance of notification
under Section 4(1), then there would be no question
of invoking the urgency clause under Section 17 of the
said Act and the interest under Section 34 shall start
running from the date of passing of the award.
(iv) .............
(v) .............
(vi) .............
(vii) .............
16. Clause (iv) of the impugned award reads thus:-
"iv. Compensation received from LAO in respect
of acquired lands, be deducted from the amount of
enhanced compensation and balance amount be
paid to the claimants along with interest @ 9% per
annum for the period 28.11.2005 to 11.08.2006, in
the light of Section 34 of the Act."
17. Admittedly, when the possession of the lands acquired
was taken over before issuance of the notification under section 4 of
the Act, there would, therefore, be no question of grant of interest
under Section 34 of the Act. The Apex Court in the case of
Haridwar Development Authority Vs. Raghubir Singh and
ors., (2010)11 SCC 581 has observed in paragraph 15 as under:-
15. In regard to the compensation that is offered by
the Land Acquisition Collector, the interest is payable
under section 34 of the Act. In regard to the increase in
such compensation, which is awarded by the Reference
Court or any appellate court, such interest is awarded
under section 28 of the Act. Sections 34 and 28 of the
Act do not duplicate the award of interest, but together
cover the entire amount of compensation awarded. The
award of interest on the enhanced amount under section
28 of the Act is the normal rule. The refusal of interest
should be by assigning special or specific reasons. The
contention of the Authority that the High Court ought
not to have awarded interest under section 28 is
therefore untenable.
18. In view of the above, we are inclined to partly allow the
LARs preferred by the appellants, by modifying clause (iv) of the
impugned award.
19. In the result, the following order :-
(1) First Appeal Nos.1215 of 2014, 1225 of 2014, 1150 of
2014 and 1151 of 2014 preferred by the claimants are partly
allowed, with modification in Clause (iv) of the operative order.
Clause (iv) of the operative order dated 07.12.2013, passed by the
reference court, is replaced as under:-
(a) The respondent/acquiring body shall
pay the appellants interest at the rate of
9% per annum, on the amount of enhanced
compensation for a period of first year
commencing from the date of the award,
i.e., 11.08.2006 to 10.08.2007, and at the
rate of 15% per annum for the period from
11.08.2007 until the entire enhanced
amount of compensation is paid to the
appellants/claimants or deposited with this
court.
(b) We grant the acquiring body a period
of six months to pay up the balance
amount of compensation.
(2) First Appeal Nos.668 of 2018, 669 of 2018, 670 of 2018
and 671 of 2018, preferred by the acquiring body are dismissed.
(3) In view of dismissal of the First Appeals of the acquiring
body, the Civil Applications for grant of stay therein, stand disposed
of. Stay granted therein, if any, stands vacated.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
