Bombay High Court
Municipal Corporation, Aurangabad Thr ... vs Chandrakant Devidasrao Lakhase And Anr on 2 April, 2025
2025:BHC-AUG:9684
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.549 OF 2017
Municipal Corporation, Aurangabad
Through its Authorized Officer,
Aurangabad ... Appellant
Versus
1. Chandrakant Devidasrao Lakhase (Died)
Kamalbai w/o. Chandrakant Lakhase
Died Through LRs
1/1. Ashok s/o. Chandrakant Lakhase
Age : 52 years, Occu : Business,
1/2. Nitin s/o. Chandrakant Lakhase
Age : 48 years, Occu : Busienss,
1/3. Sachin s/o. Chandrakant Lakhase
Age : 44 years, occu : Business,
Above all R/o. Rangar Galli, Aurangabad
2. The State of Maharashtra
Through Special Land Acquisition Officer,
(Special Unit) Aurangabad ... Respondents
.....
Shri. Anand P. Bhandari, Advocate for the Appellant
Shri. Shaikh Kayyum Najir, Advocate for Respondent Nos.1-1 to 1-3
Shri. D. J. Patil, AGP for Respondent No.2
.....
AND
FIRST APPEAL NO.1334 OF 2017
Chandrakant s/o. Devidasrao Lakhase (Died),
Kamalbai w/o. Chandrakant Lakhase (Died)
Through LRs :-
1-A. Ashok s/o. Chandrakant Lakhase,
Age : 52 years, Occu : Business,
2
1-B. Nitin s/o. Chandrakant Lakhase,
Age : 48 years, Occu : Business,
1-C. Sachin s/o. Chandrakant Lakhase,
Age : 44 years, Occu : Business,
R/o. Rangar Galli, Aurangabad. ... Appellants
(Orig. Claimants)
Versus
1. State of Maharashtra,
Through Special Land Acquisition Officer,
(Special Unit), Aurangabad
2. The Commissioner, ... Respondents
Municipal Corporation, Aurangabad (Orig. Respondents)
.....
Shri. Shaikh Kayyum Najir, Advocate for the Appellants
Shri. D. J. Patil, AGP for Respondent No.1
Shri. Anand P. Bhandari, Advocate for Respondent No.2
.....
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 18.03.2025
PRONOUNCED ON : 02.04.2025
COMMON JUDGMENT :-
. Both the Appeals filed under Section 54 of the Land
Acquisition Act (hereinafter referred to as the 'LA Act') are directed
against the Judgment and Award dated 31.08.2016 passed by the
learned Civil Judge, Senior Division (Corporation Court), Aurangabad
(hereinafter referred to as the 'Reference Court') in Land Acquisition
Reference (hereinafter for short, 'LAR') No.89/2010 (Old LAR
No.153/06). The said Reference was filed by the Original Claimant,
namely, Chandrakant Devidasrao Lakhase (Appellant in First Appeal No.
1334 of 2017) wherein State of Maharashtra was Respondent No.1 and
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Municipal Corporation, Aurangabad (Acquiring Body) was Respondent
No.2.
2. The facts, giving rise to the present Appeals, are as under :
2A. The Land Acquisition Proceedings were initiated for the purpose
of broadening the road connecting City Police Station and Kumbharwad
corner (Rangar Galli), Aurangabad pursuant to the Development Plan.
The Special Land Acquisition Officer (in short, 'Spl. LAO') issued
Notification under Section 6 of the LA Act by publication on 08.10.1998.
The land of the Claimant admeasuring 35.70 Sq. Meters from C.T.S.
No.4095 came to be acquired for the said purpose. The Spl. LAO
declared the Award under Section 11 of the LA Act on 07.03.2006 and
granted compensation @ Rs.7000/- (Rs. Seven Thousand) per Sq. Meter
to the Claimant.
2B. The Claimant, being not satisfied with the compensation awarded
by the Spl. LAO, preferred the Reference under Section 18 of the LA Act
for enhanced compensation. According to the Claimant, the Award
passed by the Spl. LAO was passed without following principles of law
and undervalued the acquired land and granted inadequate
compensation. The acquired land was situated in the heart of the city.
The Claimant was running the shop of selling sarees under the name
and style as 'New Apana Saree'. The sale transaction, which took place
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in respect of the land situated within the vicinity of the acquired land,
was not considered and the Claimant was entitled for enhanced
compensation @ Rs.25,000/- (Rs. Twenty Five Thousand) per Sq. Meter,
and @ Rs.6,000/- (Rs. Six Thousand) per Sq. Meter towards built up
area and loss of business amounting to Rs.52,549/- (Rs.Fifty Two
Thousand Five Hundred Forty Nine) and consequently was entitled to
receive Rs.11,59,249/- (Rs.Elevan Lakh Fifty Nine Thousand Two
Hundred Forty Nine) as the compensation towards the acquisition. In
support of the reference, the Claimant relied on the sale instance in
respect of the house property situated at City Chowk, Aurangabad.
2C. The reference was resisted by the Acquiring Body / State
by filing Written-statement at Exh.7. The claim for enhanced
compensation was denied. It was contended that the Spl. LAO followed
all the procedure laid down in the LA Act while acquiring the land of the
Claimant. The Award was passed by the Spl. LAO after taking into
consideration the sale instances from the locality and after considering
the topography of the acquired land and appropriate compensation was
granted to the Claimant.
2D. On the basis of the pleadings, the learned Reference Court framed
the Issues at Exh.9, which reads as under :
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" ISSUES
1] Whether claimants prove that market value of the
land acquired by the SLAO is incorrect and
improper ?
2] Whether claimants entitled for enhanced
compensation as prayed along-with solatium and
interest as prayed ?
3] Whether reference is within limitation ?
4] What order ?"
2E. The Claimant examined himself by filing evidence Affidavit
at Exh.18. The copy of notice issued under Section 12 (2) of the LA Act,
copy of C.C. and copy of sale-deed dated 29.06.1998 were brought on
record vide Exhs.23, 24 and 25, respectively. The Claimant was
cross-examined on behalf of the Respondents. The final Award passed
by the Spl. LAO was brought on record at Exh.31. The learned
Reference Court, on considering the evidence available on record passed
the impugned Judgment and Award. The Claimant challenged the same
for enhanced compensation and the Acquiring Body challenged the same
for enhancing the compensation by the learned Reference Court.
3. Heard the learned Advocate for the Claimant, the learned
Advocate for the Acquiring Body and the learned AGP for the State.
Scrutinized the evidence available on record.
4. It is submitted by the learned Advocate for the Claimant
that Section 6 Notification was issued on 08.10.1998 and final Award
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was passed on 07.03.2006. The sale instance, which was of
pre-notification date in respect of the land situated within the vicinity of
the acquired land, was brought on record and therefore, the Claimant
was entitled for the enhanced compensation to the tune of Rs.15,000/-
(Rs. Fifteen Thousand) and more, per Square Meter. The learned
Reference Court did not consider the evidence available on record and
granted the compensation to the tune of Rs.10,000/- (Rs. Ten
Thousand) per Sq. Meter which was inadequate and the Claimant's
Appeal be allowed and the Appeal filed by the Acquiring Body be
dismissed. In support of the contention, reliance is placed on the
Judgments in Major General Kapil Mehra and Others vs. Union of India
and another, [2015 (4) Mh.L.J.] and in the case of Administrator, City
and Industrial Development Corporation (CIDCO), Aurangabad vs.
Padmakar s/o. Haribhau Muley and Others, [2020 (3) Mh.L.J.].
5. It is submitted by the learned Advocate for the Acquiring
Body that, though the Claimants claimed enhanced compensation due to
loss of business, no independent evidence was placed before the learned
Reference Court in support of the claim for enhanced compensation.
The sale instance, which was relied by the Claimant before the learned
Reference Court was in respect of constructed house and the property
acquired in the case at hand was the open land. The Spl. LAO has
granted appropriate compensation which was increased by the learned
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Reference Court. The Appeal of the acquiring body be allowed and the
compensation awarded towards loss of business be set aside and the
Appeal filed by the Claimant be dismissed. In support of his contention,
reliance is placed on the Judgment in Chimanlal Hargovinddas vs.
Special Land Acquisition Officer, Poona and Anr, AIR 1988 SC 1652.
6. The Judgments referred by both sides are considered before
adverting to the facts and evidence in the case on hand. In Chimanlal
Hargovinddas (supra) which were the Appeals pertaining to the land
acquisition proceedings, the controversy was in respect of valuation of
the lands under acquisition. Certain factors are enumerated to be kept
on the mental screen while dealing with the matters in respect of the
valuation and compensation in the land acquisition proceedings. To refer
the same, in short, they are, Reference under Section 18 of the LA Act is
not an Appeal against the Award, the Award of the Land Acquisition
Officer is merely an offer, the Reference is to be treated as the original
proceedings and the market value has to be determined afresh on the
basis of material available on record, the Claimant was in the position of
the plaintiff who has to show that the price offered for his land in the
Award was inadequate on the basis of materials available before the
Court, the market value of land under Acquisition has to be determined
as on the date of publication of the Notification under Section 4 of the
LA Act, the determination of valuation is to be worked out as if the
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valuer is hypothetical purchaser willing to purchase the land from the
open market and prepared to pay a reasonable price as on that day and
it has to be assumed that the vendor is willing to sell the land at a
reasonable price, the Court has to correlate the market value reflected in
the most comparable instance which provides index of market value,
only genuine instances have to be taken into account, even post
notification instances can be taken into account, if they are very
proximate, genuine and the acquisition itself has not motivated
the purchaser to pay a higher price on account of the resultant
improvement in development prospects, the most comparable instances
are to be identified on two aspects: (i) Proximity from time angle,
(ii) Proximity from situation angle, the balance sheet of plus and minus
factors may be drawn for this purpose and the relevant factors may be
evaluated in terms of price variation as a prudent purchaser would do,
the market value of the land under acquisition has thereafter to be
deducted by loading the price reflected in the instance taken as the
norm for plus factors and unloading it for minus factors, the exercise
has to be undertaken in a common sense manner as a prudent man of
the world of business would do, there cannot be any hard and fast or
rigid rule and the evaluation of such factors depends on the facts of
each case, every case must be dealt with on its facts pattern bearing in
mind all these factors as a prudent purchaser of land in which position
the Judge must place himself.
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7. In Major General Kapil Mehra (supra), the factors to be kept
in mind while fixing the market value of the acquired land are stated to
be (a) existing geographical situation of the land; (b) existing use of the
land; (c) available advantages, like proximity to National or State
Highway or road and/or developed area, and (d) market value of other
land situated in the same locality/village/area or adjacent or very near
to the acquired land. It is further observed that, while checking
comparable sales method of valuation of land for fixing the market
value of the acquired land, the factors which are to be borne in mind
were (1) when sale is within a reasonable time of the date of
notification under Section 4(1), (2) It should be a bona fide transaction,
(3) It should be of the land acquired or of the land adjacent to the land
acquired; and it should possess similar advantages.
8. In Administrator, City and Industrial Development Corporation
(CIDCO), Aurangabad (supra), the aforesaid principles are reiterated.
9. Coming to the case on hand, there is no controversy in respect of
the acquisition proceedings under which some part of Claimant's land
came to be acquired and the acquired land was situated within the city,
having commercial value.
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10. The Claimant, who was granted compensation @ Rs.7000/-
(Rs. Seven Thousand) per Sq. Meter by the Spl. L.A.O, claimed
enhanced compensation on the basis of the sale instance brought on
record at Exh.25. The said sale instance was executed between the
respective parties on 29.06.1998 in respect of CTS No.4025
admeasuring 21.9 Sq. Meters having dwelling house, situated at City
Chowk, Aurangabad. The total sale consideration in the sale deed is
shown as Rs.3,50,000/- (Rs. Three Lakh Fifty Thousand) which shows
that the transaction took place @ Rs.15,982/- (Rs. Fifteen Thousand
Nine Hundred Eighty Two) per Sq. Meter. Undoutedly, the said sale
instance was also considered by the Spl. LAO as seen from the
observations made in the impugned Judgment and the contents in
paragraph no.5 of the Award. Undisputedly, the said sale instance was
in respect of the land having dwelling house. It is nobodies case that the
said sale instance was from the same land which was the subject matter
at hand or of the adjacent land. From the evidence on record, it is seen
that the said land which was the subject matter of Sale-deed at Exh.25
was 1000 (one thousand) feet away from the Claimant's land and it was
situated at the City Chowk. From the cross-examination of the
Claimant, it is seen that, the acquired land was in Rangar Galli on
Hingoli Mata Road. It has come in his cross-examination that during the
acquisition proceedings, one sale-deed was executed in respect of the
land next to the acquired land. However, copy of the said sale-deed was
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not brought on record by the Claimant for the reasons best known to
him. Therefore, adverse inference can be drawn that it was not
favourable to the Claimant for enhanced compensation. Suggestion was
given in the cross-examination that the compensation was granted by
considering the sale-deeds of the nearby lands and taking into
consideration the market rate. It is further admitted in the
cross-examination that no documents were submitted to show the
income of Rs.35,000/- (Rs.Thirty Five Thousand) per month towards
rent of the shops of the acquired land. So, it cannot be said that the said
sale instance at Exh.25 was of comparable land. Therefore, not
enhancing the compensation @ Rs.15,982/- (Rs. Fifteen Thousand Nine
Hundred Eighty Two) per Sq. Meter by the learned Reference Court
cannot be faulted. Considering all the relevant factors, enhanced
compensation @ Rs.10,000/- (Rs. Ten Thousand) per Sq. Meter
awarded by the learned Reference Court appears just and proper.
11. The another aspect is in respect of the construction cost of
the built up area on the part of the acquired land. There is no dispute
that the Spl. LAO has awarded Rs.1,09,349/- (Rs. One Lakh Nine
Thousand Three Hundred Forty Nine) towards the construction of built
up area. In his cross-examination the Claimant admitted that he had not
filed the documents to show that there was built up area / construction
on the entire acquired land. Suggestion is given that since no
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construction was existing on the entire acquired land, the documents are
not filed. Under such circumstances, not enhancing the compensation
towards built up area, by the learned Reference Court, cannot be
faulted.
12. As regards the compensation awarded by the learned
Reference Court towards loss of business to the tune of Rs.52,549/- (Rs.
Fifty Two Thousand Five Hundred Forty Nine), the same also does not
call for any interference for more than one reasons. Admittedly, as seen
from the evidence of the Claimant, no documentary evidence was
brought on record in respect of his business of Saree on the acquired
land. Undoubtedly, in the Reference submitted by the Claimant he made
necessary averments in that regard i.e. running of the Saree Shop on the
land and claimed Rs.52,549/- towards loss of business. Though the
Written-statement was submitted by the State at Exh.7, the same was to
the extent that the Spl. L.A.O. has followed the necessary procedure and
law laid down under the LA Act and considered all the aspects and
awarded appropriate compensation to the Claimant. The said Written-
statement nowhere denied the contentions raised by the Claimant in the
Reference. Needless to state that by virtue of provisions of Section 53 of
the Land Acquisition Act, the provisions of the Code of Civil Procedure,
1908 are made applicable to all the proceedings before the Court under
the LA Act. The learned Reference Court has rightly observed that the
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oral as well as documentary evidence of the Claimant remained
unchallenged. There is no controversy between both sides that
commercial activity was being carried by the Claimant on the part of the
CTS No.4095 of the Claimant. Under such circumstances, awarding
compensation towards business loss by the learned Reference Court
cannot be faulted.
13. On evaluation of the evidence and material available on record,
it is clear that the impugned Judgment and Award is passed on the basis
of the pleadings and evidence available on record. In the backdrop of
the above observations, no interference is warranted in the impugned
Judgment and Award passed by the learned Reference Court on any
count. Thus, both Appeals deserve dismissal and hence the following
order :-
ORDER
(i) First Appeal No.549 of 2017 is dismissed.
(ii) First Appeal No.1334 of 2017 is dismissed.
(iii) Record and Proceedings be sent back.
(iv) The amount deposited by the Acquiring Body be disbursed
to the Claimant with interest accrued thereon, if not
withdrawn by the Claimant earlier.
( NEERAJ P. DHOTE, J. )
Signed by: Gajanan G. Punde GGP
Designation: PA To Honourable Judge
Date: 02/04/2025 17:50:08
