In Shaji Kuriakose vs. Indian Oil Corpn. Ltd., this Court observed: (SCC pp 652-53, para 3)
"3. It is no doubt true that
courts adopt comparable sales method of valuation of land while
fixing the market value of the
acquired land. While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other
methods of valuation of land such
as capitalisation of net income
method or expert opinion method.
Comparable sales method of
valuation is preferred because it
furnishes the evidence for determination of the market value
of the acquired land at which a
willing purchaser would pay for the acquired land if it had been sold
in the open market at the time of
issue of notification under Section 4 of the Act. However, comparable
sales method of valuation of land
for fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be
fulfilled and on fulfilment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia
are : (1) the sale must be a
genuine transaction, (2) that the
sale deed must have been executed
at the time proximate to the date
of issue of notification under Section 4 of the Act, (3) that the land covered by the sale must be in the vicinity of the acquired land, (4) that the land covered by the
sales must be similar to the acquired land, and (5) that the
size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale value of the land
covered by the sales be not given
for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by
sales and land acquired, it is open to the court to proportionately
reduce the compensation for acquired land than what is reflected in the sales depending
upon the disadvantages attached with the acquired land." (See also P.Ram Reddy v. Land Acquisition
Officer and Panna Lal Ghosh v.
Land Acquisition Collector.)
Bombay High Court
The State Of Maharashtra vs Chandrashekhar Tanaji Deshmukh on 12 March, 2009
Bench: K. K. Tated
These appeals are filed by State of
Maharashtra under Section 54 of the Land
Acquisition Act challenging the common judgment 5
and award of the learned trial Court passed on
29-04-1994 in various Land Acquisition References.
The trial Judge by the impugned judgment enhanced
compensation, as also awarded benefits to the
claimants under the amended provisions of the Land
Acquisition Act. The appellants are challenging
the said findings of the trial Judge in these
appeals.
2. The impugned judgment of all these nine
appeals as stated is a common. The award of the
S.L.A.O. is also common. The Notification for
acquisition is common. The evidence adduced by
the parties and relied upon by the Reference Court
is also common. The issues raised are also common
in all these appeals, so also, the principle of
law. Hence, all these appeals are being disposed
of with a common judgment.
3. Few facts in the present matters are that
the S.L.A.O. issued notification under Section 4
of the Land Acquisition Act on 25-08-1983 for
acquiring respondent - claimant's land for Water
Minors of Hatnur Dam Canal at village Advad.
After following due process of law, the S.L.A.O.
declared award dated 04-06-1987 and awarded 6
compensation in respect of acquired lands as
under.
--------------------------------------------------- Sr.No. F.A.Nos. L.A.R. Gat Area of Rate Nos Nos acquired awarded
land. @ Rs.
H. R. P.H.
--------------------------------------------------
1. 38/1995 150/92 376 0.31 33,000.00
2. 36/1995 153/92 542 0.34 42,000.00
648 0.10 30,000.00
3. 43/1995 154/92 250 0.28 42,000.00
365 0.11 20,000.00
4. 35/1995 155/92 517 0.35 24,000.00
5. 37/1995 157/92 231 0.19 30,000.00
6. 41/1995 160/92 369 0.33 30,000.00
7. 39/1995 200/92 236 0.16 42,000.00
8. 40/1995 279/93 370 0.18 30,000.00
9. 42/1995 282/93 547 0.16 42,000.00
549 0.17 30,000.00
-------------------------------------------------
4. Being aggrieved by the said award passed by
the S.L.A.O., the respondent - original claimants
preferred Reference under Section 18 of the Land 7
Acquisition Act and said Reference was decided by
the Reference Court by judgment and award dated
29-04-1994 and awarded enhanced compensation in
respect of the acquired land @ Rs.1,00,000/- Per
Hector for bagayat land, Rs.50,000/- per Hector
for jirayat land and @ Rs.70,000/- per Hector for
higher potentiality land.
5. Being aggrieved by the said judgment and
award dated 29-09-1994, the appellants preferred
the above mentioned appeals in this Court
challenging the same on the ground that the Court
below erred in placing reliance on solitary piece
of evidence in the form of Exhibit - 27 a sale
deed dated 31-12-1982. The appellants further
submitted that the Court below ought to have held
that the respondents - original claimants have
utterly failed to establish their claim for
enhancement of compensation and therefore, ought
to have confirmed the award passed by the S.L.A.O.
by rejecting the References.
6. Learned A.G.P. for the appellants
submitted that the Reference Court erred in coming
to the conclusion that the claimants are entitled
to compensation in respect of acquired land @ 8
Rs.1,00,000/- per Hector for bagayat land, Rs.
50,000/- per Hector for jirayat land and Rs.
70,000/- per Hector for higher potentiality land
i.e. Gat No. 648 in L.A.R. No. 153/92 i.e.
F.A. No. 35/1995. Learned A.G.P. further
submitted that the lower Court erred in coming to
the conclusion that overall valuation of bagayat
land to be treated double the jirayat land.
Learned A.G.P. further pointed out that the
claimants in their evidence failed to point out on
what basis claimants are entitled to market value
of the acquired bagayat land double the jirayat
land.
7. Learned Counsel appearing on behalf of the
respondents supported the judgment and award
passed by the Reference Court dated 29-04-1994.
He submitted that the Reference Court rightly held
that the claimants are entitled to compensation in
respect of bagayat land @ Rs.1,00,000/- per
Hector, @ Rs.50,000/- per Hector for jirayat land,
and @ Rs.70,000/- per Hector for higher
potentiality land. Learned Counsel for the
respondents - original claimants pointed out that
the Reference Court at the time of deciding market
value of the bagayat land relied on the judgment 9
in the matter of State of Maharashtra vs. Vithal
Rodbaji Shinde reported in 1993 B.C.J. 230. 230 It
is further submitted by the learned Counsel for
the respondents that the claimants in their
evidence specifically stated that they were
cultivating bagayat crops in their lands. In view
of these facts, learned Counsel appearing on
behalf of the respondents - original claimants
submitted that the appeals preferred by the State
of Maharashtra are liable to be dismissed with
compensatory costs.
8. In the above mentioned matters, for
determining quality of the acquired land,
Reference Court relied on 7/12 extracts produced
by the claimants respectively in their L.A.Rs.
Considering the evidence adduced by the claimants
and 7/12 extracts, I find that the lands which the
claimants claims to be bagayat lands are not
perennially irrigated lands and it is not proved
that the claimants take crops from them throughout
the year. The perennially irrigated lands wherein
the crops are raised throughout the year and the
seasonally irrigated lands wherein the irrigated
crops are taken seasonally cannot be treated on
par for the market value thereof. The market 10
value of the former lands are bound to be higher
than of the latter. Therefore the classification
of bagayat land has to be taken with this rider.
9. Reference Court mainly relied on sale deed
dated 31-12-1982 at Exhibit - 27 from village
Advad of Gat No. 508/1. By this sale deed,
transaction took place in respect of 1 H 44 R land
for Rs.1,00,000/- with half share in mango tree.
The trial Court came to the conclusion that the
rate in respect of Exhibit - 27 comes to
Rs.52,778/- per Hector. In the present matter,
notification issued under Section 4 of the Land
Acquisition Act is 25-08-1982. Considering the
gap between sale deed at Exhibit - 27 and
notification under Section 4 of the Land
Acquisition Act, Reference Court rightly decided
that the market value in respect of the jirayat
land on the date of notification under Section 4
of the Land Acquisition Act should be Rs.50,000/-
per Hector. Not only that, the Reference Court
rightly held that the land involved in Gat No.
648 in L.A.R. No. 153/1992 in F.A. No. 35/1995
market value should be Rs.70,000/- per Hector
because the land was next to village Advad and
have residential potentiality. Considering the 11
residential potentiality of land from Gat No.
648, Reference Court decided market value @
Rs.70,000/- per Hector. I do not find any
infirmity in the said decision of the Reference
Court.
10. Reference Court at the time of deciding
market value of the bagayat land hold that the
claimants are entitled to market value of bagayat
land double the jirayat land on the basis of
judgment in the matter of State of Maharashtra vs.
Vithal Rodbaji Shinde reported in 1993 B.C.J.
230.
230 Reference Court held that the value of the
bagayat land is double the value of the dry /
jirayat land. It is necessary to consider whether
Reference Court correctly decided the market value
of the bagayat land double the value of the dry /
jirayat land. The decision in the matter of
Vithal Rodbaji Shinde ( supra ) considered by our
High Court in the matter of State of Maharashtra
vs. Parashram Jagannath Aute reported in 2007 (5)
Mh. L.J. 403.
403 It is held by this Court that the
Court has to determine the amount of compensation
/ market value of the land at the time of
publication of the notification under section 4
considering the provisions of Section 23 and 24 12
alongwith various judicial pronouncement arriving
at market value in each case. It is not
permissible nor proper for the Court to lay down
any strait-jacket formula universally applicable
to all land acquisition cases at any level of
proceedings.
11. The question for consideration is what
should be the market value of bagayat land in the
present case. The respondents - claimants failed
to adduce any evidence to show that they were
taking bagayat crops whole year in their fields.
They failed to produce documentary evidence to
show that their lands were perennially irrigated
lands and they were taking crops throughout the
year. The claimants in their evidence just made a
statement that their lands were bagayat and they
used to take bagayat crops. Nowhere, the
claimants have stated in their evidence that the
market value of their bagayat land should be
double the market value of jirayat land being
superior bagayat. Considering this state of
evidence on record, I find that, in any case, the
claimants are not entitled to market value of
bagayat land double the value of dry / jirayat
land as held by the Reference Court. Considering 13
the evidence on record and considering 7/12
extracts produced by the claimants in support of
their contention about bagayat land, I hold that
the claimants are entitled to compensation in
respect of bagayat land @ Rs.75,000/- per Hector
i.e.50% more than jirayat land as held by the
Reference Court. Recently our High Court in the
matter of State of Maharashtra vs. Fulyabai Kisan
Govardhane and others, reported in, 2008 (3)
Mh.L.J. 278 held that considering the facts in
that case, bagayat land would be calculated by
giving increase of 25% of market value of jirayat
land. Para. 20 of the said judgment reads as
under :
"20. We are also of the considered view that it was not necessary for the Court to always grant a fixed percentage of increase or decrease. There cannot be a definite formula of this kind to compute the fair market value of the land. Each case has to be determined on its own facts and circumstances. The statutory guidelines contained under section 23 and the various judgments on the subject would guide determination of question of compensation. A Full Bench of this Court in the case of The State of Maharashtra vs. Parashram Jagannath Aute, First Appeal No. 1098 of 2003 decided on 19th July 2007 (since reported in 2007(5) Mh.L.J.(FB) 403) held that the analytical examination of the principles of law would lead to no other conclusion but that determination of market value of the acquired land has to be done on facts of each case, existing statutory 14
guidelines stated in section 23 and 24 of the Act and in the backdrop of judicial pronouncements controlling exercise of jurisdiction under section 18 of the Act. It was also held that it was not always true that the bagayat land would get double the compensation in comparison to jirayat land. The enunciated principles of law de hors the evidence on record cannot be applied uniformly to every case. The Court has to determine the market value of the land on the date of publication of the notification under section 4 of the Act on the basis of evidence on record. It is permissible for a Court to apply some amount of guess work if the direct evidence relating to the relevant period is not available on record. Of course, the guess work cannot be exceed its permissible limits and thus reasonable percentage of increase and / or decrease should be provided to arrive at market value to award a reasonable and fair amount of compensation to the claimants. Even if we were to add 10 per cent increase annually as applied by the Reference Court, still certain amount of deduction would have to be made and in the facts and circumstances of the present case we are of the view that 25 per cent deduction on different counts can appropriately be made. There is direct evidence on record to show that the acquired land forms part of different classes of land i.e. Bagayat, jirayat and pot kharab lands. The award made by the Collector itself divides the acquired lands into different classes which has not been questioned by any of the parties before the Reference Court. In this Court there is no challenge to such classification even during the course of arguments. Thus, we would proceed on the basis that the entire land acquired from the revenue estate of village Sajegaon falls into the three aforesaid categories which obviously are to be valued differently. Entire irrigated land cultivated through regular source of water like well water etc. essentially must receive higher rate of compensation than jirayat land which in turn would receive higher compensation than the pot kharab land. Again, applying certain 15
amount of guess work, we hold that the market value of jirayat land being the basic factor for determining compensation, market value of bagayat land would be calculated by giving increase of 25 per cent on market value of jirayat land, while pot kharab land would be given a decrease of 15 per cent from the market value of jirayat land."
12. It is no doubt true that the Courts to
adopt comparable sales method of valuation of land
while fixing market value of the acquired land.
While fixing market value of the acquired land,
comparable sales method of valuation is preferred
than other methods of valuation of land such as
capitalisation of net income method or expert
opinion method. Comparable sales method of
valuation is preferred because it furnishes the
evidence for determination of the market value of
the acquired land at which a willing purchaser
would pay for the acquired land if it had been
sold in the open market at the time of issue of
notification under Section 4 of the Act. In any
case, at the time of fixing market value of the
acquired land, some guess work has to be done on
the basis of material available on record. For
this purpose, a reference can be made to the
judgment of Apex Court in the matter of ONGC Ltd.,
vs. Sendhabhai Vastram Patel and others, reported 16
in (2005) 6 SCC 454, particularly Para. 454 11, 12
and 13 which read as under :
"11. While determining the amount of compensation payable in respect of the lands acquired by the State, indisputably, the market value therefor has to be ascertained. Although, there exist different modes for arriving at the market value for the land acquired; the best method, however, as is well known would the amount which a willing purchaser of the land would pay to the owner of the land as may be evidenced by the deeds of sale. In the absence of any direct evidence on the said point, the court may take recourse to other methods viz. judgments and awards passed in respect of acquisition of lands made in the same village and / or neighbouring villages. Such a judgment and award in the absence of any other evidence like deed of sale, report of expert and other relevant evidence, however, would have only evidentiary value.
12. The Reference Court, it is trite, has to apply the comparable sales method as also the situation of the land which is to be appreciated upon considering the question as to whether the acquired land is similar to any land sold in the vicinity.
13. In Shaji Kuriakose vs. Indian Oil Corpn. Ltd., this Court observed: (SCC pp 652-53, para 3)
"3. It is no doubt true that
courts adopt comparable sales method of valuation of land while
fixing the market value of the
acquired land. While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other
methods of valuation of land such
as capitalisation of net income
method or expert opinion method.
Comparable sales method of 17
valuation is preferred because it
furnishes the evidence for determination of the market value
of the acquired land at which a
willing purchaser would pay for the acquired land if it had been sold
in the open market at the time of
issue of notification under Section 4 of the Act. However, comparable
sales method of valuation of land
for fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be
fulfilled and on fulfilment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia
are : (1) the sale must be a
genuine transaction, (2) that the
sale deed must have been executed
at the time proximate to the date
of issue of notification under Section 4 of the Act, (3) that the land covered by the sale must be in the vicinity of the acquired land, (4) that the land covered by the
sales must be similar to the acquired land, and (5) that the
size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale value of the land
covered by the sales be not given
for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by
sales and land acquired, it is open to the court to proportionately
reduce the compensation for acquired land than what is reflected in the sales depending
upon the disadvantages attached with the acquired land." (See also P.Ram Reddy v. Land Acquisition
Officer and Panna Lal Ghosh v.
Land Acquisition Collector.)
18
13. In view of the above mentioned facts and
circumstances, I partly allow the appeals
preferred by the State of Maharashtra, holding
that the claimants are entitled to compensation in
respect of the acquired bagayat land @ Rs.75,000/-
per Hector instead of Rs.1,00,000/- per Hector, as
held by the Reference Court. Hence I pass the
following order.
: O R D E R :
(A). The appeals preferred by the State
of Maharashtra are partly allowed, holding
that the respondents - original claimants
are entitled to compensation in respect of
bagayat land @ Rs. 75,000/- per Hector
instead of Rs.1,00,000/- per Hector, as
held by the Reference Court.
(B). The judgment and award passed by
the Reference Court is modified to the
extent that respondents - original
claimants are entitled to compensation in
respect of bagayat land @ Rs.75,000/- per
Hector in stead of Rs.1,00,000/- per
Hector.
19
(C). No order as to costs.
. Civil Applications are preferred by the
State of Maharashtra for stay of the impugned
judgment and award passed by Reference Court. In
view of the final disposal of First Appeals,
nothing survives in these Civil Applications and
same are disposed of as rejected.
[ K.K. TATED, J.]
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