In support of the cross objection preferred by respondent original claimant
claiming compensation in respect of acquired land at the rate of Rs.500 per Are
i.e. Rs.50,000/per
Hectare, they failed to produce any cogent evidence on
record. Not only that, claimant in his deposition failed to justify the market
rate of acquired land at the rate of Rs500 per Are. Even considering the
evidence on record of Mr.Jeevan Kulkarni and report prepared by him, I am of
the opinion that respondents are not entitled to enhanced compensation over
and above Rs.357 per Are because valuer relied on previous judgment in L.A.R.
in which the Special Land Acquisition Officer acquired land from other villages.
33. The submission made by the learned counsel for respondent for enhanced
compensation in respect of acquired house property cannot be considered
because the claimant in his deposition no where explained on what ground he
is entitled to enhanced compensation. Claimant failed to produce any valuation
report of the acquired house property on record. Considering these facts I do
not find any substance in the submission made by learned counsel for
respondent for enhanced compensation in respect of house property.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.355 OF 1991
The State of Maharashtra .. Appellant
Vs.
Kashiram Nathu Mohite & Ors. .. Respondents
CORAM: K.K. TATED, J.
PRONOUNCED ON: 21ST JANUARY, 2011
Citation;2011(2) ALL MR 599,2011(2) MHLJ708 Bom
1. Heard the learned counsel for the parties.
2. This Appeal is preferred by original respondents State of Maharashtra against
the judgment and award dated 6.1.90 passed by Civil Judge, Senior Division,
Raigad at Alibag in L.A.R. No.9 of 1984.
3. Cross objections were preferred by original claimants claiming enhanced
compensation in respect of acquired land at the rate of Rs.500/per
Are.
4. A few facts of the matter are as under:
5. Special Land Acquisition Officer issued notification under section 4 of the Land
Acquisition Act, 1894 (said Act) dated 12.10.78 for acquiring respondents original
claimants land from Village Boris Taluka Alibag, District Raigad for gas based
fertilizer plant at Thal to be set up by Rashtriya Chemicals and Fertilizers Ltd.,
Bombay.
6. Thereafter, Special Land Acquisition Officer issued Notification under section 6
of the said Act dated 4.11.78. After following due process of law Special Land
Acquisition Officer declared award dated 9.3.81 awarding compensation in
respect of acquired land in the sums of Rs.19,258, towards crops, trees etc. Rs.
36,156/,
well and construction Rs.19,239/,
solatium Rs.2,888.70 and interest Rs.
2150.48. In all, the Special Land Acquisition Officer awarded Rs.79,692.18 which
per acre comes to Rs.4000/.
Being aggrieved by the award dated 9.3.1981
passed by Special Land Acqusition Officer, the respondents original claimants
preferred reference under section 18 of the Land Acquisition Act, and claimed
compensation in respect of acquired land @ Rs.50,000/per
Hector.
7. After hearing both the sides, the reference court by its judgment and award
dated 6.1.90 awarded compensation in respect of acquired land at the rate of Rs.
357 per Are.
8. Heard both the counsel at length. Perused the records and proceeding of the
matter.
9. The learned A.G.P. appearing on behalf of the appellant submits that the
reference court erred in coming to the conclusion that the respondents original
claimants filed reference application under section 18 of the Land Acquisition
Act was within time. She submits that Special Land Acquisition Officer passed
award on 9.3.81 and the respondents original claimants filed reference under
section 18 of the Land Acquisition Act on 24.1.84 that is beyond the period of
limitation.
10. The learned A.G.P. appearing on behalf of applicant submits that the reference
court ought to have held that the respondents original claimants failed to claim
any compensation pursuant to the notice under section 9 of the Land
Acquisition Act and therefore, bar under unamended section 25 of the Land
Acquisition Act, comes into operation. She submits that they have specifically
stated in their written statement that the respondent original claimant failed to
reply to the notice under section 9 issued by the Land Acquisition Act and
therefore, bar under unamended section 25 of the Land Acquisition Act is
applicable.
11. The learned counsel for the appellants submits that the respondents original
claimants failed to produce any cogent evidence on record to show that they
are entitled to enhanced compensation in respect of acquired land. She
submits that not a single sale deed is produced by respondents original
claimants to support their case for enhanced compensation. She further submits
that the reference court erred in relying on the evidence of expert Mr.Jeevan
Narayan Kulkarni. for coming to the conclusion that respondents original
claimants are entitled to enhanced compensation in respect of acquired land at
the rate of Rs. 357/per
Are. On the basis of these submissions, the learned
A.G.P. submits that the judgment and award passed by reference court is liable
to be set aside.
12. The learned counsel for respondents original claimants and appellants in cross
objection submits that the reference court erred in coming to the conclusion
that the claimants are not entitled to enhanced compensation in respect of
acquired land at the rate of Rs.500/per
Are. He submits that though they
produced cogent evidence on record through the expert Mr.Jeevan Kulkarni,
reference court awarded compensation only at the rate of Rs.357 per Are.
13. He submits that the expert in his evidence at Ex.18 as well as in report at Ex.20
categorically stated that the lands are approachable by a village road leading
towards village Boris branching from AlibagRevas
State Highway. He further
stated that the nearest market for village Boris was Village Thal, because it is
adjacent to the said village Boris.
14. The learned counsel for the respondents submits that reference application filed
by them was within period of limitation. He submits that the Special Land
Acquisition Officer passed award on 9.3.81. They learnt about the award when
they received Special Land Acquisition Officer s reply to their ’ letter dt.26.12.83.
He submits that the acquiring body took possession before passing award by the
Law Officer and they made payments on 7.6.79. He further submits that no one
entered into witness box on behalf of the appellant to show that they issued
notice under section 12(2) of the Land Acquisition Act and the same was duly
served on them.
15.In view of these facts, the learned counsel for the respondents submits that
filing of the reference under section 18 of the Land Acquisition Act on 24.1.1984
from the date of knowledge was within period of limitation. In support of his
submissions he relied on the judgment in the matter of Bhagwan Das and Ors.
vs. State of U.P and Ors. Reported in AIR 2010 Supreme Court 1532. In this
case, the Apex Court held that the application for reference is to be filed within
the prescribed limitation period computed from the date when the claimants
became aware of the contents of the award and / or knowledge of the award.
Para 11 and 13 of the said judgment reads as under:
11. When a land is acquired and an award is made “ under section 11
of the Act, the Collector becomes entitled to take possession of the
acquired land. The award being only an offer on behalf of the
Government, there is always a tendency on the part of the Collector to
be conservative in making the award, which results in less than the
market value being offered. Invariably the land loser is required to make
an application under section 18 of the Act to get the market value as
compensation. The land loser does not get a right to seek reference to
the civil court unless the award is made. This means that he can make
an application seeking reference only when he knows that an award has
been made. If the words six months from the `date of the Collector's
award' should be literally interpreted as referring to the date of the
award and not the date of knowledge of the award, it will lead to unjust
and absurd results. For example, the Collector may choose to make an
award but not to issue any notice under section 12(2) of the Act, either
due to negligence or oversight or due to any ulterior reasons. Or he may
send a notice but may not bother to ensure that it is served on the land
owner as required under section 45 of the Act. If the words `date of the
Collector's award' are literally interpreted, the effect would be that on
the expiry of six months from the date of award, even though the
claimant had no notice of the award, he would lose the right to seek a
reference. That will lead to arbitrary and unreasonable discrimination
between those who are notified of the award and those who are not
notified of the award. Unless the procedure under the Act is fair,
reasonable and nondiscriminatory,
it will run the risk of being branded
as being violative of Article 14 as also Article 300A of the Constitution of
India. To avoid such consequences, the words `date of the collector's
award' occurring in proviso (b) to section 18 requires to be read as
referring to the date of knowledge of the essential contents of the award,
and not the actual date of the Collector's award.
13. When a person interested makes an application for reference
seeking the benefit of six months period from the date of knowledge, the
initial onus is on him to prove that he (or his representative) was not
present when the award was made, that he did not receive any notice
under Section 12(2) of the Act, and that he did not have the knowledge
of the contents of the award during a period of six months prior to the
filing the application for reference. This onus is discharged by asserting
these facts on oath. He is not expected to prove the negative. Once the
initial onus is discharged by the claimant/person interested, it is for the
Land Acquisition Collector to establish that the person interested was
present either in person or through his representative when the award
was made, or that he had received a notice under Section 12(2) of the
Act, or that he had knowledge of the contents of the award. Actual or
constructive knowledge of the contents of the award can be established
by the Collector by proving that the person interested had received or
drawn the compensation amount for the acquired land, or had attested
the Mahazar/ Panchnama/proceedings delivering possession of the
acquired land in pursuance of the acquisition, or had filed a case
challenging the award or had acknowledged the making of the award in
any document or in statement on oath or evidence. The person
interested, not being in possession of the acquired land and the name of
the state or its transferee being entered in the revenue municipal records
coupled with delay, can also lead to an inference of constructive
knowledge. In the absence of any such evidence by the Collector, the
claim of the person interested that he did not have knowledge earlier
will be accepted, unless there are compelling circumstances to not to do
so.
Re : Question (d)”
16. He further submits that the reference court erred in coming to the conclusion
that the claimant failed to produce any cogent evidence to claim enhanced
compensation in respect of acquired property i.e. house. The learned counsel
further submits that reference court has not awarded interest as per section 28
of the Land Acquisition Act.
17. On the aforesaid submissions the above mentioned facts and circumstances, the
learned counsel for the respondents original claimants submits that they are
entitled to compensation in respect of acquired land at the rate of Rs.500 per
Are i.e. Rs.50,000/per
Hector and they are also entitled to enhanced
compensation in respect of the house property.
18. The first submission made by the learned A.G.P. is that the reference was not
made within the prescribed limitation. The respondent original claimants case
was that for want of notice under section 12(2) of the Land Acquisition Act, they
had no knowledge when the award was passed by the Land Acquisition Officer.
They specifically stated in their reference under section 18 of the Land
Acquisition Act that in the month of December 1983 they learnt about passing
of award by Land Acquisition Officer and therefore, they issued legal notice
through their advocate on 26.12.83 calling upon Special Land Acquisition Officer
to inform the date of award, contents of award etc.
19. The Special Land Acquisition Officer by their letter dt.16.1.84 Ex.12 informed the
respondents original claimants that they were entitled to sum of Rs.89,257.50
towards the acquired land. In this letter, the Special Land Acquisition Officer
failed to disclose date of award and date of notice under section 12(2) of the
Land Acquisition Act.
20. After getting letter dt.16.1.84 from the Special Land Acquisition Officer, the
respondents original claimants filed reference under section 18 of the Land
Acquisition Act on 24.1.84. Therefore, the reference application filed by
respondents original claimants was within the period of limitation from the date
of knowledge of award. The Apex Court in the matter of Bhagwan Das and
Ors (Supra) held that when the person interested makes an application for
reference seeking the benefit of 6 months period from the date of knowledge,
initially the onus is on him to prove that he or his representative was not
present when the award was made, that he did not receive any notice under
section 12(2) of the Act and that he did not have the knowledge of the
contents of the award within the period of 6 months prior to the filing the
application for reference.
21. In the present case, it is crystal clear from record and proceedings that neither
the respondents were present before the Special Land Acquisition Officer when
the award was passed nor notice under section 12(2) of the Land Acquisition
Act, was served on them.
22.The Apex Court in the matter of Parsottambhai Maganbhai Patel and Ors. Vs.
State of Gujarat and anr. reported in 2005(4) Mh.L.J. 1171 held that for
filing of reference application limitation is six months from the date of
knowledge of Collector’s award. Head note reads as under:
Land Acquisition Act, 1894, Ss.18(2)(b) and 12(2) – Filing of
reference application – Limitation is six months from the date of
knowledge of Collector’s award – Claimants came to know about
the award only when compensation was being paid to them in
July, 1988 – They were not issued notice under section 12(2) of the
Act – Application for reference filed under section 18 on 22.9.1988
was well within prescribed six months period of limitation. AIR
1961 SC 1500, Rel. (Para 7)
23. Considering these facts, the submissions made by learned A.G.P. are not
acceptable. For the reasons mentioned above, it must be held that the
respondents filed reference under section 18 of the Land Acquisition Act within
the period of limitation.
24. The second contention made by the learned A.G.P. for the appellant is that the
respondents original claimants failed to adduce any cogent evidence to show
that they are entitled to enhanced compensation in respect of acquired land.
She further submits that the reference court erred in relying on evidence of
expert who visited the acquired land in the year 1988 i.e. after 10 years from
the date of notice under section 4 of the Land Acquisition Act. It is an
admitted fact that the expert Jeevan N. Kulkarni visited first time the acquired
land in the year 1988 but on the basis of his experience and location of the
acquired land and considering the previous judgment in L.A.R. No.12 of 1982 and
L.A.R No. 17 of 1982, he stated that the prevailing market rate of the acquired
land as on the date of notification under section 4 of the Land Acquisition Act
must be Rs.800/per
Are i.e. Rs.80,000/per
hectare. He also prepared map Ex.
19 and report Ex.20.
25. At the time of preparing Ex.20 i.e. Valuation Report valuer relied on sale
instance dt.27.9.72. In that sale instance one Mhatre sold his land from S.No.
179 H.No.11 of Kihim at Rs.328/per
Are. He also relied on sale deed dt.31.12..74
for land from village Kihim. In that sale instance, the area 7 ares was sold at
Rs.285.75 per Are. In another sale instance dt.1.11.1974 of 6.5 Ares, land from
S.No.85 H.No.1C
+ 2D was sold @ Rs.2,307/per
Are. In sale deed dt.17.12.74
of 71.8 Ares from S.N.107 H.No.10 of Thal was sold for a consideration of Rs.
31,000/at
Rs.431.75 per Are. In sale deed dated 7.1.75 area of 8.48 Ares from
S.No. 182B was purchased by Smt. Geeta Gangadhar Misal from village Thal at
843.88 per Are. In sale deed 3.1.75 of 12.9 Ares land was sold at the rate of Rs.
620 per Are from S.No.213/H.No.3K.
26. The valuer also relied on post notification sales that is sale deed dated 14.9.82
and 24.2.81. Considering the sale deeds and previous decision in L.A.R. from the
same locality, he estimated the market value of the acquired land as on the
date of issuing notification under section 4 at the rate of Rs.800/per
are.
27.The apex court in the matter of Special Land Acquisition Officer and Anr. vs.
Sidappa Omanna Tumari and Ors. reported in 1995 Supp(2) Supreme Court
Cases 168 held that report of expert can be considered at the time of fixing the
market value of acquired land.
28. Considering the above mentioned facts and Apex Court judgment, I find that
the reference court rightly considered the evidence on record including the
evidence of valuer, his report and map for determining the Market value of
acquired land.
29. The next contention made by learned A.G.P. is that as the respondent original
claimant failed to reply the notice under section 9 of the Land Acquisition Act,
bar under section 25 (unamended section) is applicable and they are not entitled
to any enhanced compensation. Unamended Section 25 reads as under:
"25. Rules as to amount of compensation.
(1) When the applicant has made a claim to compensation,
pursuant to any notice given under section 9, the amount awarded to
him by the Court shall not exceed the amount so claimed or be less than
the amount awarded by the Collector under section 11.
(2) When the applicant has refused to make such claim or has
omitted without sufficient reason to make such claim, the amount
awarded by the Court shall in no case exceed the amount awarded by
the Collector.
(3) When the applicant has omitted for a sufficient
reason (to be allowed by the Judge) to make such claim, the amount
awarded to him by the Court shall not be less than, and may exceed, the
amount awarded by the Collector."
30. It is clear that from the bare reading of section 25 unamended of the Land
Acquisition Act, that if a claimant failed to reply notice under section 9 then,
bar under section 25 (unamended) is applicable but in the present case, in the
award under section 11 of the Land Acquisition Act 1894 Special Land
Acquisition Officer specifically stated that respondent pursuant to notice under
section 9 of the Land Acquisition Act claimed compensation in respect of
acquired land at the rate of Rs.1,25,000/per
Hectare. In view of these facts,
the submission made by learned A.G.P. regarding unamended section 25 ibid is
not applicable.
31. The reference court considering the previous judgments and sale deeds on
record rightly held that claimants are entitled to compensation in respect of
acquired land at the rate of Rs.357 per Are i.e. Rs.35,700 per Hectare.
32. In support of the cross objection preferred by respondent original claimant
claiming compensation in respect of acquired land at the rate of Rs.500 per Are
i.e. Rs.50,000/per
Hectare, they failed to produce any cogent evidence on
record. Not only that, claimant in his deposition failed to justify the market
rate of acquired land at the rate of Rs500 per Are. Even considering the
evidence on record of Mr.Jeevan Kulkarni and report prepared by him, I am of
the opinion that respondents are not entitled to enhanced compensation over
and above Rs.357 per Are because valuer relied on previous judgment in L.A.R.
in which the Special Land Acquisition Officer acquired land from other villages.
33. The submission made by the learned counsel for respondent for enhanced
compensation in respect of acquired house property cannot be considered
because the claimant in his deposition no where explained on what ground he
is entitled to enhanced compensation. Claimant failed to produce any valuation
report of the acquired house property on record. Considering these facts I do
not find any substance in the submission made by learned counsel for
respondent for enhanced compensation in respect of house property.
34. The learned counsel appearing on behalf of respondent original claimant
submitted that the reference court erred in awarding interest @ 9% p.a. from
the date of possession i.e. 5.1.278 till the date of order of reference court as per
section 28 of the Land Acquisition Act that is for 133 months. He submits that
in view of section 28 of the Land Acquisition Act, claimants are entitled to
interest @ 9% p.a. for first year and from next year, they are entitled to 15%
p.a. Section 28 of the Land Acquisition Act reads as under:
28. Collector may be directed to pay interest on “ excess compensation –
If the sum which, in the opinion of the Court, the Collector ought to
have awarded as compensation is in excess of the sum which the
Collector did award as compensation, the award of the Court may direct
that the Collector shall pay interest on such excess at the rate of (nine
per centum) per annum from the date on whch he took possession of the
land to the date of payment of such excess into Court:
[Provided that the award of the Court may also direct that where such
excess or any part thereof is paid into Court after the date of expiry of
a period of one year from the date on which possession is taken, interest
at the rate of fifteen per centum per annum shall be payable from the
date of expiry of the said period of one year on the amount of such
excess or part thereof which has not been paid into Court before the
date of such expiry.”
35. From the bare reading of s.28 of the Land Acquisition Act, it is clear that the
reference court erred in awarding interest @ 9% p.a. for entire period.
Therefore respondent original claimants are entitled to interest under section 28
of the Land Acquisition Act @ 9% p.a. and for subsequent year @15% p.a.
36. In view of the above mentioned facts, following order.
A) First Appeal No.355 of 1991 is dismissed.
B) Cross Objections St.No.18796 of 1991 are partly allowed holding that
claimants are entitled to interest under section 28 of Land Acquisition Act @
9% p.a. for first year and for subsequent year @ 15%p.a. till the date of
payment.
C) No order as to costs.
(K.K. TATED, J.)
Print Page
claiming compensation in respect of acquired land at the rate of Rs.500 per Are
i.e. Rs.50,000/per
Hectare, they failed to produce any cogent evidence on
record. Not only that, claimant in his deposition failed to justify the market
rate of acquired land at the rate of Rs500 per Are. Even considering the
evidence on record of Mr.Jeevan Kulkarni and report prepared by him, I am of
the opinion that respondents are not entitled to enhanced compensation over
and above Rs.357 per Are because valuer relied on previous judgment in L.A.R.
in which the Special Land Acquisition Officer acquired land from other villages.
33. The submission made by the learned counsel for respondent for enhanced
compensation in respect of acquired house property cannot be considered
because the claimant in his deposition no where explained on what ground he
is entitled to enhanced compensation. Claimant failed to produce any valuation
report of the acquired house property on record. Considering these facts I do
not find any substance in the submission made by learned counsel for
respondent for enhanced compensation in respect of house property.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.355 OF 1991
The State of Maharashtra .. Appellant
Vs.
Kashiram Nathu Mohite & Ors. .. Respondents
CORAM: K.K. TATED, J.
PRONOUNCED ON: 21ST JANUARY, 2011
Citation;2011(2) ALL MR 599,2011(2) MHLJ708 Bom
1. Heard the learned counsel for the parties.
2. This Appeal is preferred by original respondents State of Maharashtra against
the judgment and award dated 6.1.90 passed by Civil Judge, Senior Division,
Raigad at Alibag in L.A.R. No.9 of 1984.
3. Cross objections were preferred by original claimants claiming enhanced
compensation in respect of acquired land at the rate of Rs.500/per
Are.
4. A few facts of the matter are as under:
5. Special Land Acquisition Officer issued notification under section 4 of the Land
Acquisition Act, 1894 (said Act) dated 12.10.78 for acquiring respondents original
claimants land from Village Boris Taluka Alibag, District Raigad for gas based
fertilizer plant at Thal to be set up by Rashtriya Chemicals and Fertilizers Ltd.,
Bombay.
6. Thereafter, Special Land Acquisition Officer issued Notification under section 6
of the said Act dated 4.11.78. After following due process of law Special Land
Acquisition Officer declared award dated 9.3.81 awarding compensation in
respect of acquired land in the sums of Rs.19,258, towards crops, trees etc. Rs.
36,156/,
well and construction Rs.19,239/,
solatium Rs.2,888.70 and interest Rs.
2150.48. In all, the Special Land Acquisition Officer awarded Rs.79,692.18 which
per acre comes to Rs.4000/.
Being aggrieved by the award dated 9.3.1981
passed by Special Land Acqusition Officer, the respondents original claimants
preferred reference under section 18 of the Land Acquisition Act, and claimed
compensation in respect of acquired land @ Rs.50,000/per
Hector.
7. After hearing both the sides, the reference court by its judgment and award
dated 6.1.90 awarded compensation in respect of acquired land at the rate of Rs.
357 per Are.
8. Heard both the counsel at length. Perused the records and proceeding of the
matter.
9. The learned A.G.P. appearing on behalf of the appellant submits that the
reference court erred in coming to the conclusion that the respondents original
claimants filed reference application under section 18 of the Land Acquisition
Act was within time. She submits that Special Land Acquisition Officer passed
award on 9.3.81 and the respondents original claimants filed reference under
section 18 of the Land Acquisition Act on 24.1.84 that is beyond the period of
limitation.
10. The learned A.G.P. appearing on behalf of applicant submits that the reference
court ought to have held that the respondents original claimants failed to claim
any compensation pursuant to the notice under section 9 of the Land
Acquisition Act and therefore, bar under unamended section 25 of the Land
Acquisition Act, comes into operation. She submits that they have specifically
stated in their written statement that the respondent original claimant failed to
reply to the notice under section 9 issued by the Land Acquisition Act and
therefore, bar under unamended section 25 of the Land Acquisition Act is
applicable.
11. The learned counsel for the appellants submits that the respondents original
claimants failed to produce any cogent evidence on record to show that they
are entitled to enhanced compensation in respect of acquired land. She
submits that not a single sale deed is produced by respondents original
claimants to support their case for enhanced compensation. She further submits
that the reference court erred in relying on the evidence of expert Mr.Jeevan
Narayan Kulkarni. for coming to the conclusion that respondents original
claimants are entitled to enhanced compensation in respect of acquired land at
the rate of Rs. 357/per
Are. On the basis of these submissions, the learned
A.G.P. submits that the judgment and award passed by reference court is liable
to be set aside.
12. The learned counsel for respondents original claimants and appellants in cross
objection submits that the reference court erred in coming to the conclusion
that the claimants are not entitled to enhanced compensation in respect of
acquired land at the rate of Rs.500/per
Are. He submits that though they
produced cogent evidence on record through the expert Mr.Jeevan Kulkarni,
reference court awarded compensation only at the rate of Rs.357 per Are.
13. He submits that the expert in his evidence at Ex.18 as well as in report at Ex.20
categorically stated that the lands are approachable by a village road leading
towards village Boris branching from AlibagRevas
State Highway. He further
stated that the nearest market for village Boris was Village Thal, because it is
adjacent to the said village Boris.
14. The learned counsel for the respondents submits that reference application filed
by them was within period of limitation. He submits that the Special Land
Acquisition Officer passed award on 9.3.81. They learnt about the award when
they received Special Land Acquisition Officer s reply to their ’ letter dt.26.12.83.
He submits that the acquiring body took possession before passing award by the
Law Officer and they made payments on 7.6.79. He further submits that no one
entered into witness box on behalf of the appellant to show that they issued
notice under section 12(2) of the Land Acquisition Act and the same was duly
served on them.
15.In view of these facts, the learned counsel for the respondents submits that
filing of the reference under section 18 of the Land Acquisition Act on 24.1.1984
from the date of knowledge was within period of limitation. In support of his
submissions he relied on the judgment in the matter of Bhagwan Das and Ors.
vs. State of U.P and Ors. Reported in AIR 2010 Supreme Court 1532. In this
case, the Apex Court held that the application for reference is to be filed within
the prescribed limitation period computed from the date when the claimants
became aware of the contents of the award and / or knowledge of the award.
Para 11 and 13 of the said judgment reads as under:
11. When a land is acquired and an award is made “ under section 11
of the Act, the Collector becomes entitled to take possession of the
acquired land. The award being only an offer on behalf of the
Government, there is always a tendency on the part of the Collector to
be conservative in making the award, which results in less than the
market value being offered. Invariably the land loser is required to make
an application under section 18 of the Act to get the market value as
compensation. The land loser does not get a right to seek reference to
the civil court unless the award is made. This means that he can make
an application seeking reference only when he knows that an award has
been made. If the words six months from the `date of the Collector's
award' should be literally interpreted as referring to the date of the
award and not the date of knowledge of the award, it will lead to unjust
and absurd results. For example, the Collector may choose to make an
award but not to issue any notice under section 12(2) of the Act, either
due to negligence or oversight or due to any ulterior reasons. Or he may
send a notice but may not bother to ensure that it is served on the land
owner as required under section 45 of the Act. If the words `date of the
Collector's award' are literally interpreted, the effect would be that on
the expiry of six months from the date of award, even though the
claimant had no notice of the award, he would lose the right to seek a
reference. That will lead to arbitrary and unreasonable discrimination
between those who are notified of the award and those who are not
notified of the award. Unless the procedure under the Act is fair,
reasonable and nondiscriminatory,
it will run the risk of being branded
as being violative of Article 14 as also Article 300A of the Constitution of
India. To avoid such consequences, the words `date of the collector's
award' occurring in proviso (b) to section 18 requires to be read as
referring to the date of knowledge of the essential contents of the award,
and not the actual date of the Collector's award.
13. When a person interested makes an application for reference
seeking the benefit of six months period from the date of knowledge, the
initial onus is on him to prove that he (or his representative) was not
present when the award was made, that he did not receive any notice
under Section 12(2) of the Act, and that he did not have the knowledge
of the contents of the award during a period of six months prior to the
filing the application for reference. This onus is discharged by asserting
these facts on oath. He is not expected to prove the negative. Once the
initial onus is discharged by the claimant/person interested, it is for the
Land Acquisition Collector to establish that the person interested was
present either in person or through his representative when the award
was made, or that he had received a notice under Section 12(2) of the
Act, or that he had knowledge of the contents of the award. Actual or
constructive knowledge of the contents of the award can be established
by the Collector by proving that the person interested had received or
drawn the compensation amount for the acquired land, or had attested
the Mahazar/ Panchnama/proceedings delivering possession of the
acquired land in pursuance of the acquisition, or had filed a case
challenging the award or had acknowledged the making of the award in
any document or in statement on oath or evidence. The person
interested, not being in possession of the acquired land and the name of
the state or its transferee being entered in the revenue municipal records
coupled with delay, can also lead to an inference of constructive
knowledge. In the absence of any such evidence by the Collector, the
claim of the person interested that he did not have knowledge earlier
will be accepted, unless there are compelling circumstances to not to do
so.
Re : Question (d)”
16. He further submits that the reference court erred in coming to the conclusion
that the claimant failed to produce any cogent evidence to claim enhanced
compensation in respect of acquired property i.e. house. The learned counsel
further submits that reference court has not awarded interest as per section 28
of the Land Acquisition Act.
17. On the aforesaid submissions the above mentioned facts and circumstances, the
learned counsel for the respondents original claimants submits that they are
entitled to compensation in respect of acquired land at the rate of Rs.500 per
Are i.e. Rs.50,000/per
Hector and they are also entitled to enhanced
compensation in respect of the house property.
18. The first submission made by the learned A.G.P. is that the reference was not
made within the prescribed limitation. The respondent original claimants case
was that for want of notice under section 12(2) of the Land Acquisition Act, they
had no knowledge when the award was passed by the Land Acquisition Officer.
They specifically stated in their reference under section 18 of the Land
Acquisition Act that in the month of December 1983 they learnt about passing
of award by Land Acquisition Officer and therefore, they issued legal notice
through their advocate on 26.12.83 calling upon Special Land Acquisition Officer
to inform the date of award, contents of award etc.
19. The Special Land Acquisition Officer by their letter dt.16.1.84 Ex.12 informed the
respondents original claimants that they were entitled to sum of Rs.89,257.50
towards the acquired land. In this letter, the Special Land Acquisition Officer
failed to disclose date of award and date of notice under section 12(2) of the
Land Acquisition Act.
20. After getting letter dt.16.1.84 from the Special Land Acquisition Officer, the
respondents original claimants filed reference under section 18 of the Land
Acquisition Act on 24.1.84. Therefore, the reference application filed by
respondents original claimants was within the period of limitation from the date
of knowledge of award. The Apex Court in the matter of Bhagwan Das and
Ors (Supra) held that when the person interested makes an application for
reference seeking the benefit of 6 months period from the date of knowledge,
initially the onus is on him to prove that he or his representative was not
present when the award was made, that he did not receive any notice under
section 12(2) of the Act and that he did not have the knowledge of the
contents of the award within the period of 6 months prior to the filing the
application for reference.
21. In the present case, it is crystal clear from record and proceedings that neither
the respondents were present before the Special Land Acquisition Officer when
the award was passed nor notice under section 12(2) of the Land Acquisition
Act, was served on them.
22.The Apex Court in the matter of Parsottambhai Maganbhai Patel and Ors. Vs.
State of Gujarat and anr. reported in 2005(4) Mh.L.J. 1171 held that for
filing of reference application limitation is six months from the date of
knowledge of Collector’s award. Head note reads as under:
Land Acquisition Act, 1894, Ss.18(2)(b) and 12(2) – Filing of
reference application – Limitation is six months from the date of
knowledge of Collector’s award – Claimants came to know about
the award only when compensation was being paid to them in
July, 1988 – They were not issued notice under section 12(2) of the
Act – Application for reference filed under section 18 on 22.9.1988
was well within prescribed six months period of limitation. AIR
1961 SC 1500, Rel. (Para 7)
23. Considering these facts, the submissions made by learned A.G.P. are not
acceptable. For the reasons mentioned above, it must be held that the
respondents filed reference under section 18 of the Land Acquisition Act within
the period of limitation.
24. The second contention made by the learned A.G.P. for the appellant is that the
respondents original claimants failed to adduce any cogent evidence to show
that they are entitled to enhanced compensation in respect of acquired land.
She further submits that the reference court erred in relying on evidence of
expert who visited the acquired land in the year 1988 i.e. after 10 years from
the date of notice under section 4 of the Land Acquisition Act. It is an
admitted fact that the expert Jeevan N. Kulkarni visited first time the acquired
land in the year 1988 but on the basis of his experience and location of the
acquired land and considering the previous judgment in L.A.R. No.12 of 1982 and
L.A.R No. 17 of 1982, he stated that the prevailing market rate of the acquired
land as on the date of notification under section 4 of the Land Acquisition Act
must be Rs.800/per
Are i.e. Rs.80,000/per
hectare. He also prepared map Ex.
19 and report Ex.20.
25. At the time of preparing Ex.20 i.e. Valuation Report valuer relied on sale
instance dt.27.9.72. In that sale instance one Mhatre sold his land from S.No.
179 H.No.11 of Kihim at Rs.328/per
Are. He also relied on sale deed dt.31.12..74
for land from village Kihim. In that sale instance, the area 7 ares was sold at
Rs.285.75 per Are. In another sale instance dt.1.11.1974 of 6.5 Ares, land from
S.No.85 H.No.1C
+ 2D was sold @ Rs.2,307/per
Are. In sale deed dt.17.12.74
of 71.8 Ares from S.N.107 H.No.10 of Thal was sold for a consideration of Rs.
31,000/at
Rs.431.75 per Are. In sale deed dated 7.1.75 area of 8.48 Ares from
S.No. 182B was purchased by Smt. Geeta Gangadhar Misal from village Thal at
843.88 per Are. In sale deed 3.1.75 of 12.9 Ares land was sold at the rate of Rs.
620 per Are from S.No.213/H.No.3K.
26. The valuer also relied on post notification sales that is sale deed dated 14.9.82
and 24.2.81. Considering the sale deeds and previous decision in L.A.R. from the
same locality, he estimated the market value of the acquired land as on the
date of issuing notification under section 4 at the rate of Rs.800/per
are.
27.The apex court in the matter of Special Land Acquisition Officer and Anr. vs.
Sidappa Omanna Tumari and Ors. reported in 1995 Supp(2) Supreme Court
Cases 168 held that report of expert can be considered at the time of fixing the
market value of acquired land.
28. Considering the above mentioned facts and Apex Court judgment, I find that
the reference court rightly considered the evidence on record including the
evidence of valuer, his report and map for determining the Market value of
acquired land.
29. The next contention made by learned A.G.P. is that as the respondent original
claimant failed to reply the notice under section 9 of the Land Acquisition Act,
bar under section 25 (unamended section) is applicable and they are not entitled
to any enhanced compensation. Unamended Section 25 reads as under:
"25. Rules as to amount of compensation.
(1) When the applicant has made a claim to compensation,
pursuant to any notice given under section 9, the amount awarded to
him by the Court shall not exceed the amount so claimed or be less than
the amount awarded by the Collector under section 11.
(2) When the applicant has refused to make such claim or has
omitted without sufficient reason to make such claim, the amount
awarded by the Court shall in no case exceed the amount awarded by
the Collector.
(3) When the applicant has omitted for a sufficient
reason (to be allowed by the Judge) to make such claim, the amount
awarded to him by the Court shall not be less than, and may exceed, the
amount awarded by the Collector."
30. It is clear that from the bare reading of section 25 unamended of the Land
Acquisition Act, that if a claimant failed to reply notice under section 9 then,
bar under section 25 (unamended) is applicable but in the present case, in the
award under section 11 of the Land Acquisition Act 1894 Special Land
Acquisition Officer specifically stated that respondent pursuant to notice under
section 9 of the Land Acquisition Act claimed compensation in respect of
acquired land at the rate of Rs.1,25,000/per
Hectare. In view of these facts,
the submission made by learned A.G.P. regarding unamended section 25 ibid is
not applicable.
31. The reference court considering the previous judgments and sale deeds on
record rightly held that claimants are entitled to compensation in respect of
acquired land at the rate of Rs.357 per Are i.e. Rs.35,700 per Hectare.
32. In support of the cross objection preferred by respondent original claimant
claiming compensation in respect of acquired land at the rate of Rs.500 per Are
i.e. Rs.50,000/per
Hectare, they failed to produce any cogent evidence on
record. Not only that, claimant in his deposition failed to justify the market
rate of acquired land at the rate of Rs500 per Are. Even considering the
evidence on record of Mr.Jeevan Kulkarni and report prepared by him, I am of
the opinion that respondents are not entitled to enhanced compensation over
and above Rs.357 per Are because valuer relied on previous judgment in L.A.R.
in which the Special Land Acquisition Officer acquired land from other villages.
33. The submission made by the learned counsel for respondent for enhanced
compensation in respect of acquired house property cannot be considered
because the claimant in his deposition no where explained on what ground he
is entitled to enhanced compensation. Claimant failed to produce any valuation
report of the acquired house property on record. Considering these facts I do
not find any substance in the submission made by learned counsel for
respondent for enhanced compensation in respect of house property.
34. The learned counsel appearing on behalf of respondent original claimant
submitted that the reference court erred in awarding interest @ 9% p.a. from
the date of possession i.e. 5.1.278 till the date of order of reference court as per
section 28 of the Land Acquisition Act that is for 133 months. He submits that
in view of section 28 of the Land Acquisition Act, claimants are entitled to
interest @ 9% p.a. for first year and from next year, they are entitled to 15%
p.a. Section 28 of the Land Acquisition Act reads as under:
28. Collector may be directed to pay interest on “ excess compensation –
If the sum which, in the opinion of the Court, the Collector ought to
have awarded as compensation is in excess of the sum which the
Collector did award as compensation, the award of the Court may direct
that the Collector shall pay interest on such excess at the rate of (nine
per centum) per annum from the date on whch he took possession of the
land to the date of payment of such excess into Court:
[Provided that the award of the Court may also direct that where such
excess or any part thereof is paid into Court after the date of expiry of
a period of one year from the date on which possession is taken, interest
at the rate of fifteen per centum per annum shall be payable from the
date of expiry of the said period of one year on the amount of such
excess or part thereof which has not been paid into Court before the
date of such expiry.”
35. From the bare reading of s.28 of the Land Acquisition Act, it is clear that the
reference court erred in awarding interest @ 9% p.a. for entire period.
Therefore respondent original claimants are entitled to interest under section 28
of the Land Acquisition Act @ 9% p.a. and for subsequent year @15% p.a.
36. In view of the above mentioned facts, following order.
A) First Appeal No.355 of 1991 is dismissed.
B) Cross Objections St.No.18796 of 1991 are partly allowed holding that
claimants are entitled to interest under section 28 of Land Acquisition Act @
9% p.a. for first year and for subsequent year @ 15%p.a. till the date of
payment.
C) No order as to costs.
(K.K. TATED, J.)
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