As regards the method of taking market value of Pot
kharaba land equivalent to 50% of Jirayat land, the Division Bench of
this Court in the case of Special Land Acquisition Officer (III), Jalgaon
and Another v. Bhagwat Vithal Sonwane [2009(4) Mh.L.J. 308) has
quoted with the approval the earlier decision of this Court in the case of
State of Maharashtra Vs Pralhad Bajrang Magar (supra) and has held
that the market value of the Pot kharaba land was equivalent to the
50% of the market value of Jirayat lands. Therefore, no interference is
called as regards the market value fixed in respect of Pot kharaba lands
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.261 OF 2007
WITH
CIVIL APPLICATION NO.782 OF 2007
The State of Maharashtra Vs Shri Chandrakant Mangilal Samdadia,
CORAM : A.S. OKA & SHRIHARI P. DAVARE, JJ
DATE: 10TH AUGUST, 2012.
Citation;2012(6) ALL M R 87 Bom,2013(1) BomCR117,2013(1) MHLJ 397
This group of First Appeals can be disposed of by a
common judgment and order. As some of the Appeals pertain to
jurisdiction of learned Single Judge, an order dated 16th July, 2012 has
been passed by Hon'ble the Chief Justice assigning these Appeals to this
Court. These Appeals consist of two groups. One group of the Appeals
is First Appeal No.699 of 2002 alongwith the First Appeal Nos.1053 of
2009 to 1056 of 2009. In these Appeals, the challenge is to the
judgment and award dated 21st December, 2000 passed by the learned
Joint District Judge in Land Acquisition Reference Nos.264 of 1993 to
267 of 1993. The remaining Appeals out of this group of First Appeals
arise out of a common judgment and award dated 30th April, 2001 in
Land Acquisition Reference Nos. 213 of 1994 to 232 of 1994, 128 of
1995, 129 of 1995, 72 of 1996 and 28 of 2001. All the aforesaid
references are under Section 18 of the Land Acquisition Act, 1894
( hereinafter referred to as “the said Act”).
FACTS OF GROUP I
2. The lands subject matter of the first group of First Appeals
being First Appeal No.699 of 2002 and First Appeal Nos.1053 of 2009
to 1056 of 2009 are situated at MaleDumale,
Taluka Dindori, District –
Nashik. The lands were notified under a Notification under Section
4(1) of the said Act which was published in Government Gazette dated
4th January, 1990. The purpose of acquisition was construction of the
Punegaon Dam. The acquired lands subject matter of the said
References are the agricultural lands. The awards under Section 11 of
the said Act were made on 23rd January, 1993. While offering
compensation by the award under Section 11 of the said Act, the
Special Land Acquisition Officer divided the acquired lands into four
categories viz. JirayatI,
JirayatII,
JirayatIII
and JirayatIV.
The
market value offered by the Special Land Acquisition Officer for the said
categories is as under:1.
Jirayat –I Rs.19,000/Per
Hectare
2. Jirayat –II Rs.21,000/Per
Hectare
3. Jirayat –III Rs.23,000/Per
Hectare
4. Jirayat –IV Rs.25,000/Per
Hectare
The Pot kharaba land was valued at Rs.200/Per
Hectare. The Special
Land Acquisition Officer offered compensation for the wells and
structures separately as per the valuation made by the Competent
Authority. The Special Land Acquisition Officer accepted the valuation
of trees/orchards on the acquired lands made by the Horticultural
Department and compensation was offered accordingly for
trees/orchards. As far as fuel trees are concerned, no compensation
was offered. The Claimants did not accept the compensation offered
by the Award under Section 11 of the said Act and at their instance,
references were made under Section 18 of the said Act. By the
impugned judgments and awards, the learned Trial Judge came to the
conclusion that in case of the lands falling in Bagayat –III, the market
value will be Rs.1,33,000/Per
Hectare. On that basis, the learned
Trial Judge determined the market value of various categories of the
lands.
1. Jirayat –I Rs.86,000/Per
Hectare
2. Jirayat –II Rs.88,000/Per
Hectare
3. Jirayat –III Rs.90,000/Per
Hectare
4. Bagayat –I Rs.1,29,000/Per
Hectare
5. Bagayat II
Rs.1,31,000/Per
Hectare
6. Bagayat III
Rs.1,33,000/Per
Hectare
7. Bagayat IV
Rs.1,35,000/Per
Hectare
3. The learned Trial Judge did not grant any enhanced
compensation on account of trees/orchards, wells and structures. The
learned Judge observed that as far as the valuation of Pot kharaba land
at Rs.200/Per
Hectare made by the Special Land Acquisition Officer is
concerned, none of the Claimants have either pleaded or proved that
the said rate was inadequate. The learned Judge granted statutory
benefits under Section 23(1A)
and Section 23(2) of the said Act. The
learned Judge also granted statutory benefit under Section 28 of the
said Act. However, the benefit of interest under Section 28 was
granted only on the component of excess land value and not on the
other two components under Section 23(2) and Section 23(1A)
of the
said Act. The market value was fixed on the basis of the sale instance
of the Sale Deed dated 9th June, 1988 (Exhibit49)
in respect of the
lands bearing Gat No.161 from the same village. The market value
reflected from the sale instance was also approximately Rs.1,15,800/for
BagayatIII
land. Considering the fact that the relevant date for
determination of the market value was 4th January, 1990, the 15%
escalation was given and, therefore, the market value of BagayatIII
land was arrived at Rs.1,33,170/Per
Hectare which was rounded off to
Rs.1,33,000/Per
Hectare. The Special Land Acquisition Officer while
determining the market value of various categories of the lands had
added Rs.2,000/Per
Hectare for arriving at the market value of
immediately next higher category of the acquired lands. Accordingly,
the market value of various categories of Jirayat and Bagayat lands was
fixed by adding Rs.2000/per
Hectare. The market value of Bagayat I
lands was fixed at 1 and ½ times the rate of JirayatI
lands. The
Reference Court by the impugned judgments and awards proceeded to
fix the following rates of market value.
1. Jirayat –I Rs.86,000/Per
Hectare
2. Jirayat –II Rs.88,000/Per
Hectare
3. Jirayat –III Rs.90,000/Per
Hectare
4. Bagayat –I Rs.1,29,000/Per
Hectare
5. Bagayat II
Rs.1,31,000/Per
Hectare
6. Bagayat III
Rs.1,33,000/Per
Hectare
7. Bagayat IV
Rs.1,35,000/Per
Hectare
FACTS OF GROUP II
4. The second group of the First Appeals arises out of a
common judgment and award dated 30th April, 2001 in the group of
References to which we have referred earlier. The said References
were under Section 18 of the said Act. The lands subject matter of the
References are also situated at village MaleDumale.
The Notification
under Section 4(1) of the said Act was published in the Government
Gazette on 7th March, 1991. The Awards under Section 11 of the said
Act were made on 27th April, 1994. The market value offered by the
Special Land Acquisition Officer under the said Awards under Section
11 of the said Act was at the following rates:1.
Jirayat –I Rs.21,000/Per
Hectare
2. Jirayat –II Rs.23,000/Per
Hectare
3. Jirayat –III Rs.25,000/Per
Hectare
4. Jirayat IV
Rs.27,000/Per
Hectare
5. Bagayat –I Rs.31,500/Per
Hectare
6. Bagayat II
Rs.34,500/Per
Hectare
7. Bagayat III
Rs.37,500/Per
Hectare
8. Bagayat IV
Rs.40,500/Per
Hectare
5. Separate compensation was offered for the fruit bearing
trees on the acquired land as well as the wells and structures on the
acquired lands. The market value of the Pot kharaba lands was fixed at
Rs.200/Per
Hectare. While passing the impugned common judgment
and award, the learned Trial Judge relied upon the common judgment
and award in the Land Acquisition References Nos.264 of 1993 to 267
of 1993 dated 21st December 2000 which is subject matter of challenge
in the first group of the Appeals. In the said group of Appeals, the
relevant date is 4th January, 1990. In the second group of First Appeals,
the relevant date is 21st April, 1991. For this gap, the learned Judge
took into account the rise at the rate of 11.5% ( at the rate of 10% per
annum). After giving the said rise, by the impugned judgments and
awards, the market value was fixed at the following rates:1.
Jirayat –I Rs.95,890/Per
Hectare
2. Jirayat –II Rs.97,890/Per
Hectare
3. Jirayat –III Rs.99,890/Per
Hectare
4. Jirayat IV
Rs.1,01,890/Per
Hectare
5. Bagayat –I Rs.1,43,835/Per
Hectare
6. Bagayat II
Rs.1,45,835/Per
Hectare
7. Bagayat III
Rs.1,47,835/Per
Hectare
8. Bagayat IV
Rs.1,49,835/Per
Hectare
6. As regards the Pot kharaba land, the learned Trial Judge
relied upon a decision of this Court in the case of State of Maharashtra
v. Pralhad Bajarang Magar [1996(1) BCJ 247]. On the basis of the
said decision, the Pot kharaba land was valued at the rate equivalent to
50% of the value of Jirayat land. The learned Trial Judge granted
statutory benefits under Section 23(1A)
and Section 23(2) of the said
Act. The learned Judge also granted statutory benefit under Section 28
of the said Act. However, statutory benefit of interest under Section
28 of the said Act was confined to the excess market value. The
interest under Section 28 was denied on the other two components
under Section 23(2) and Section 23(1A)
of the said Act.
INTEREST UNDER SECTION 28 OF THE SAID ACT:
7. Before dealing with the submissions made by the learned
counsel appearing for the Claimants and the learned AGP for the State,
we may note here that in both the groups, there is no dispute regarding
entitlement of the Claimants to statutory benefits under Sections 23(1A),
23(2) and 28 of the said Act. However, the interest under Section
28 of the said Act has been granted only on the component of excess
market value. The interest under Section 28 of the said Act has been
denied on the components of Section 23(2) and 23(1A)
of the said Act
on the basis of a decision of the Apex Court in the case of Prem Nath
Kapur and Another v National Fertilizers Corporation of India Limited
and Others [(1996)2 SCC 71]. In the subsequent decision of the Apex
Court in the case of Sunder Vs Union of India [(2001)7 SCC 21], the
decision in Prem Nath Kapur's case (supra) is held as no longer a good
law and now it is well settled that the interest under Section 28 of the
said Act is payable on the excess amount granted by the Reference
Court under all the three components of compensation i.e. market value
under Section 23(1), Solatium under Section 23(2) and interest under
Section 23(1A)
of the said Act. In view of the settled position,
whenever an enhancement in compensation is granted by the Reference
Court in a Reference under Section 18, the Claimant is entitled to
interest under Section 28 on all three components as a matter of right.
In this view of the matter, as regards the entitlement of Claimants to
benefit under Section 28 of the said Act, we have made no further
discussion in the subsequent part of the judgment.
SUBMISSIONS OF RIVAL PARTIES:
8. Now we turn to the submissions made across the bar on the
issue of market value of the lands, wells structures and trees. Shri P.N.
Joshi and Shri P.B. Shah, the learned counsel have made submissions on
behalf of the Original Claimants in the Appeals preferred by the
Claimants as well as in the Appeals preferred by the State Government.
Shri A.R. Patil, AGP has made submissions on behalf of the State
Government in all the First Appeals.
9. Learned counsel appearing for the Claimants submitted
that the market value of the lands involved in the second group of
Appeals will have to be determined on the basis of the market value of
the lands subject matter of first group of the first Appeals. Firstly, the
learned counsel submitted that there was no reason to deny
compensation on account of market value of the trees. The learned
counsel for the Claimants relied upon the evidence of the witness
Uttamrao Patil. He pointed out that he is a Valuer who had visited the
suit property for ascertaining the market value of trees. He invited our
attention to the valuation report submitted by the said witness. He
invited our attention to the evidence of the PW3
Hemant Haribhau
Dhatrak who submitted a valuation report in respect of the structures
such as Gobargas Plant, Water Storage Tank, Houses, Wells, etc. He
submitted that the learned Trial Judge has not correctly understood the
legal position as regards the grant of market value of the trees on the
acquired lands. He submitted that the evidence in the form of
certificate yield issued by the Agricultural Produce Market Committee,
Nashik was also produced and proved by the Claimants. He urged that
the law on this aspect has been laid down by the learned Single Judge
in the case of Smt. Shrimati Vishwanath Acharya through Lrs v. Special
Land Acquisition Officer & Another [(2011)2 Mh.LJ 118]. He
submitted that based on the valuation reports, the Claimants were
entitled to enhanced compensation on account of damage caused by
reason of taking standing crops/fruits bearing trees on the acquired
lands. He submitted that the case for enhancement of compensation
was made out especially as regards the fruits bearing trees as well as
the structures and wells on the acquired lands. The learned counsel
appearing for the Claimants in support of the Appeals preferred by the
Claimants in the second group of Appeals submitted that the acquired
lands were from the same village and were notified for the same project
as in the case of acquired lands in the first group of Appeals. They
submitted that there was a difference of only 14 months before
publication of the notification. They submitted that the Notification
under Section 4(1) of the said Act in the second group of Appeals is
subsequent to the Notification under Section 4(1) of the said Act in the
first group. It was submitted that the price of the market value as on
the date of Notification under Section 4(1) i.e. 21st April, 1991 of the
said Act in the second group of Appeals has been arrived at by the Trial
Court by taking escalation at the rate of 10% per annum on the market
value fixed in the first group as on 4th January, 1990. It was submitted
that the escalation should have been taken at minimum rate of 15% per
annum. The learned counsel appearing for the Claimants submitted
that even in second group of Appeals, expert valuer Uttamrao Patil (PW2)
has been examined to prove the loss on account of trees on the
acquired lands. It was submitted that for no cogent reason, the learned
Trial Judge has doubted the case made out by the witness about the
date on which he took inspection of the acquired lands. The
submission is that the compensation ought to have been enhanced in
respect of the fruit bearing trees as well as as regards structures and
wells.
10. In support of the common judgment and award in the first
group, the learned AGP submitted that the sale instance of Sale Deed
dated 9th June, 1988 in respect of the land bearing Gat No.161 ought to
have been kept out of consideration inasmuch as even the said land was
acquired under the same Notification and the sale was obviously made
in anticipation of the acquisition only with the object of creating
evidence regarding higher market value. He submitted that in fact the
sale instance dated 27th March, 1981 at Exhibit75
which is proved by
the witness Bipinchand Parikh examined by the Special Land
Acquisition Officer shows that the market value on the relevant date
was much less than what has been granted. He submitted that as a
comparison method was adopted, no separate compensation is payable
on account of fruit bearing trees on the acquired lands and the
structures. He submitted that in any event in both the groups of
Appeals, there was no evidence to show that the prices of the
agricultural lands were increased in the span of 14 to 18 months. He
submitted that escalation granted at the rate of 10% and 15% per
annum respectively is on the higher side and no such escalation could
have been taken into consideration unless there was evidence to show
that there was escalation of the prices of the agricultural lands in the
vicinity of the acquired lands during the relevant period. As far as the
second group of References is concerned, he submitted that some of the
References were barred by limitation.
CONSIDERATION OF SUBMISSIONS:
11. As pointed out earlier, the relevant date in the first group of
Appeals is 4th January, 1990. In the second group, the relevant date is
7th March, 1991. The acquired lands subject matter of both groups are
situated in the same village Male Dumale and the purpose of acquisition
is the same. The public purpose in case of lands in both the groups is
for construction of Punegaon Dam. The lands subject matter of both
the groups are agricultural lands. Therefore, for determining the
market value of the lands involved in both the groups, it will be
necessary to firstly determine the market value of the acquired lands as
of 4th January, 1990 which is the relevant date in the first group. In the
first group, the sale instance relied upon by the Claimants is of 9th June,
1988 which is a sale deed in respect of the land bearing Gat No.161 in
the same village. The area of the said lands subject matter of the sale
deed is 1 Hectare and 62 Ares which is a cultivable portion along with
the Pot kharaba land of 2 Ares. The total market value reflected from
the said Sale Deed is Rs.1,90,000/.
We must note here that even the
said Gat No.161 was notified for acquisition by the same Notification
published on 4th January, 1990. The said land bearing Gat No.161 is the
subject matter of Land Acquisition Reference No. 267 of 1993. Against
the award in the said Reference, First Appeal No.1056 of 2009 has been
preferred by the State Government which forms part of first group.
On this aspect, it will be necessary to make a reference to the evidence
of one Jagannath Korale, who is the Claimant in Land Acquisition
Reference No.267 of 1993. He deposed that by Sale Deed dated 9th
June, 1988, he purchased the entire Gat No.161 for a consideration of
Rs.1,90,000/.
He stated that the land was a bagayat land. He
identified the signature of Tarabai, the vendor on the sale deed. He
stated that he purchased the land as per the market value prevailing in
the village. In the examinationinchief,
he claimed that the acquired
lands were irrigated by water from the well and river. In the crossexamination,
he denied the correctness of the suggestion that he
purchased the land bearing Gat No.161 as he was holding the adjoining
lands. He denied the correctness of the suggestion that he has
purchased the land under the Sale Deed Exhibit49
at exorbitant price
as he was holding the adjoining lands. It is pertinent to note that there
was no suggestion given to the said witness that the Sale Deed was got
executed by him at a higher price as the acquisition of other lands held
by him for the public purpose was contemplated. Only suggestion
given is that the land bearing Gat No.161 was a valuable land for him
as he was holding the lands abutting the said lands. If a suggestion
would have been given to the witness that the said transaction was not
a genuine sale transaction, the Claimants could have examined the
Vendor under the said Sale Deed. Thus, except for a bald suggestion
that the said Claimants purchased the land bearing Gat No.161 at an
exorbitant price as he was holding surrounding lands, there was no
other serious crossexamination
on the Sale Deed.
12. We must note here that the State Government examined
one Bipinchand Parikh to prove the sale instance at Exhibit 75 of the
Sale Deed dated 27th March, 1989 in respect of an area of 3 Hectare and
19 Ares out of Gat No.170 from the same village. In the crossexamination,
the witness who was the puchaser admitted that the
consideration was not fixed as per the prevailing market value as there
was a tenancy dispute pending in respect of the land. He admitted that
he had not made any inquiry about the then prevailing rate of market
value. He admitted that he was not a resident of the village MaleDumale
and he was staying at Kalyan. In view of this admission, the
Trial Court has rightly held that the sale instance of the said Sale Deed
at Exhibit75
does not reflect the prevailing market value. Apart from
the Sale Deed dated 9th June, 1988 at Exhibit – 49, the Claimants relied
upon the award in Land Acquisition Reference Nos.15 to 23 of 1992.
13. The sale instance at Exhibit49
is of a land which was an
agricultural land from the said village. The said land was also a subject
matter of acquisition under the said Notification dated 4th January,
1990. The acquired lands which are subject matter of the first group of
the Appeals are in a close vicinity with each other and some of the lands
are the adjacent lands. The gap between the Sale Deed and the
relevant date for determination of the market value is of 18 months.
Thus, a sale instance of a land which was subject matter of the same
acquisition, was available. Hence, evidence in the form of Awards of
the Reference Court will have to be kept out of consideration.
Therefore, for determination of the market value, the only relevant
piece of evidence is the said Sale Deed dated 9th June, 1988
14. Therefore, the market value as of 4th January, 1990 will
have to be determined on the basis of the Sale Deed dated 9th June,
1988. For arriving at the market value as of the relevant date, the
Reference Court has considered 15% escalation. In this behalf, it will
be necessary to make a reference to the decision of the Apex Court in
the case of General Manager, Oil and Natural Gas Corporation Limited
v. Rameshbhai Jivanbhai Patel & Another, [(2008)14 SCC 745]. It will
be necessary to make a reference to what is held in Paragraphs 14 and
15 of the said decision which read thus:“
14. On the other extreme, in remote rural
areas where there was no chance of any
development and hardly any buyers, the prices
stagnated for years or rose marginally at a nominal
rate of 1% or 2% per annum. There is thus a
significant difference in market value of lands in the
rural areas. Therefore, if the increase in market
value in urban/semiurban
areas is about 10% to
15% per annum, the corresponding increases in
rural areas would at best be only around half of it,
that is, about 5% to 7.5% per annum. This rule of
thumb refers to the general trend in the nineties, to
be adopted in the absence of clear and specific
evidence relating to increase in prices. Where
there are special reasons for applying a higher rate
of increase, or any specific evidence relating to the
actual increase in prices, then the increase to be
applied would depend upon the same.”
15. Normally, recourse is taken to the mode
of determining the market value by providing
appropriate escalation over the proved market value
of nearby lands in previous years (as evidenced by
sale transactions or acquisitions), where there is no
evidence of any contemporaneous sale transactions
or acquisitions of comparable lands in the
neighbourhood. The said method is reasonably safe
where the reliedon
sale transactions/acquisitions
precede the subject acquisition by only a few years,
that is, upto neighbouring land. What may be a
reliable standard if the gap is of only a few years,
may become unsafe and unreliable standard where
the gap is larger. For example, for determining the
market value of a land acquired in 1992, adopting
the annual increase method with reference to a sale
or acquisition in 1970 or 1980 may have many
pitfalls. This is because, over the course of years,
the “rate” of annual increase may itself undergo
drastic stagnation in prices or sudden spurts in
prices affecting the very standard of increase.”
( Underline supplied )
15. In Paragraph 18 of the said decision, the Apex Court
observed that the logical, practical and appropriate method is to apply
the increase cumulatively and not at the flat rate. In the facts of the
case, the land acquired was situated in a rural area. In the present
case, there was no evidence of any extraordinary
development or extraordinary
increase in the prices of lands in the area. Therefore, as
observed in Paragraph 17 by the Apex Court, considering the fact that
the acquired agricultural lands were in rural area, the rate of escalation
will have to be taken at 7.5% per annum.
16. Therefore, the escalation taken at 15% per annum by the
Trial Court is on the higher side. In the present case, the market value
reflected from the Sale Deed dated 9th June, 1988 is Rs.1,15,800/Per
Hectare. The said land was found to be BagayatIII
category. For
determining the market value as of 4th January, 1990, the escalation will
have to be taken at the rate of 7.5% per annum on the basis of the
market value of Rs.1,15,800/per
Hectare as of 9th June, 1988. The
escalation at the rate of 7.5% per year will have to be taken into
consideration on a cumulative basis. The escalation will have to be
calculated for a period of 18 months. The interest at the rate of 7.5%
per annum for one year will be Rs.8685/.
Thus, market value as of 9th
June, 1989 will be Rs.1,24,485/(
Rs.1,15,800/+
Rs.8685/).
On
Rs.1,24,485/,
the yearly increase at 7.5% will be Rs.9336.37 and
therefore, interest for six months will be Rs.4668.18 i.e. Rs.4668/.
Hence, market value of bagayat III land as of 4th January, 1990 will be
Rs.1,29,153 (Rs. 1,24,485 + 4668 ). The Trial Court has held this
value to be Rs.1,33,000/which
is on the higher side.
MARKET VALUE OF LANDS IN GROUPI
17. The Special Land Acquisition Officer himself had divided
the acquired lands into various groups such as JirayatI,
II, III and IV.
The Special Land Acquisition Officer himself has taken the difference
between the JirayatI
and JirayatII
at Rs.2,000/Per
Hectare. In fact,
the difference between every successive category is taken at Rs.2,000/Per
Hectare. As held above, by applying the cumulative increase at the
rate of 7.5% per annum, the market value of BagayatIII
land as of 4th
January, 1990 will be Rs.1,29,153/.
Accordingly, the market value of
the lands for various categories in the lands falling in first group is as as
under:1.
Bagayat –I Rs.1,25,153/Per
Hectare
2. Bagayat II
Rs.1,27,153/Per
Hectare
3. Bagayat III
Rs.1,29,153/Per
Hectare
4. Bagayat IV
Rs.1,31,153/Per
Hectare
18. The learned Judge has taken the market value of Jirayat
lands at 2/3rd of the corresponding market value of Bagayat Lands.
Thus, the market value of Jirayat I land will be 2/3rd of Rs.1,25,153 i.e.
Rs.83,435/per
Hectare. For determining market value of successive
::: Downloaded on - 30/06/2014 17:11:56 :::
Bombay High Court
ash 38 fa-261.07-group
categories of Jirayat lands, Rs.2000/per
category will have to be
added. Accordingly, the market value of the lands will be as under:1.
Jirayat –I Rs.83,435/Per
Hectare
2. Jirayat –II Rs.85,435/Per
Hectare
3. Jirayat –III Rs.87,435/Per
Hectare
4. Jirayat IV
Rs.89,435/Per
Hectare
MARKET VALUE OF TREES/STRUCTURES:
19. Now the other issue is regarding the grant of enhancement
in compensation on account of market value of the trees/orchards,
wells and structures. It must be noted here that for determining the
market value of the acquired lands, a comparison method has been
adopted. The basis for determination of the market value is the Sale
Deed dated 9th June, 1988 at Exhibit49.
The land subject matter of
sale deed is itself a Bagayat land which was irrigated through well
water and which was having the trees/orchards. Thus, the market
value has been fixed on the basis of the sale instance of a land which
itself is a Bagayat land having orchards or fruit bearing trees. In this
behalf, a reference will have to be made to the decision of the Apex
Court in the case of Ambya Kalya Mhatre (Dead) Through LRs. and
Others v. State of Maharashtra [(2011)9 SCC 325]. In Paragraph 35,
the Apex Court held thus:“
35. We are afraid that the High Court has misread
the said decision in regard to valuing the land and
trees separately. If the land value had been
determined with reference to the sale statistics or
compensation awarded for a nearby vacant land,
then necessarily, the trees will have to be valued
separately. But if the value of the land has been
determined on the basis of the sale statistics or
compensation awarded for an orchard, that is land
with fruitbearing
trees, then there is no question of
again adding the value of the trees. Further, if the
market value has been determined by capitalising
the income with reference to yield, then also the
question of making any addition either for the land
or for the trees separately does not arise. In this
case, the determination of market value was not
with reference to the yield. Nor was the
determination of market value in regard to the land
with reference to the value of any orchard but was
with reference to vacant agricultural land. In the
circumstances, the value of the trees could be added
to the value of the land.”
(Underline added)
20. As in the present case, the market value has been fixed on
the basis of the sale instance of a land having fruit bearing trees.
Hence, as held by the Apex Court, there is no question of again adding
the value of the trees. It is true that the market value of trees has been
separately assessed by the Land Acquisition Officer. However, that is no
ground to consider the case for enhancement. The decision of the
learned Single Judge in the case of Smt. Shrimati Vishwanath Acharya
(supra) holds that under the caption 'secondly' in subsection
(1) of
Section 23 of the said Act, the Reference Court is bound to take into
consideration the damage sustained by reason of taking any standing
crops or trees which may be on the land at the time of the Collector
taking possession. In view of the subsequent binding precedent in the
case of Ambya Kalya Mhatre (supra), the decision in the case of
Shrimati Vishwanath (supra) cannot be read as a precedent. In the
present case, the Claimants have examined one Uttamrao Patil (PW2)
who claims to be the Agro Horticulture Consultant. He claims that he
visited the lands in the year 1990. Plain reading of the evidence shows
that he has not considered the number of trees in existence at the time
of dispossession of the Claimants. In evidence, he claims that he
visited the acquired lands in the year 1990. In the present case, the
Award under Section 11 of the said Act was made on 23rd January, 1993
and the possession must have been taken only thereafter. Therefore,
the witness could not have deposed as regards the damage sustained by
reason of taking possession of the trees which were on the land at the
time of taking over possession. Hence, there is no reason to grant any
enhancement under the caption of market value of the trees. As
regards the market value of the structures and wells on the lands, the
Claimants have examined one Hemant Haribhau Dhatrak who is the
Civil Engineer. He has set out the market value of the wells, houses,
gobar gas plant, water storage tank, etc. He has merely stated the
figures of the market value in his evidence without stating the basis for
coming to the conclusion as to why that a particular structure or a
particular well was having the said market value. It is a mere opinion
evidence without disclosing the basis for forming opinion. Therefore,
his evidence will have to be kept out of consideration.
OBJECTION REGARDING BAR OF LIMITATION AS
REGARDS THE REFERENCES SUBJECT MATTER
OF GROUPII
21. We find from the impugned common judgment that the
issue regarding bar of limitation was specifically framed. The record
shows that the date of the Award under Section 11 of the said Act is 27th
April, 1994. There is nothing on record to show that the Claimants
were present at the time of declaration of the Award. By carrying out
the amendment to the Reference Applications, the Claimants have
stated that they were not duly served with the notices under Section
12(2) of the said Act. In fact, the Claimants served a notice to the State
Government to produce the office copy of the notices under Section
12(2) of the said Act and the documents showing the service of notices.
However, inspite of service of notice to produce documents, the State
Government did not produce any document. The Reference
Applications were filed on 24th August, 1994. Thus, the Reference
Applications were filed within a period of six months from the date of
the Award under Section 11 of the said Act. The learned Trial Judge
has rightly drawn adverse inference against the State of Maharashtra
for not producing the relevant documents. The witness Jagannath
Korale examined by the Claimants stated that the notices under Section
12(2) of the said Act were not served and the Claimants became aware
of the Award when they received payment of compensation. In the
Land Acquisition Reference Nos.128 of 1995 and 129 of 1995, it is
brought on record that the notices under Section 12(2) of the said Act
were issued on 19th July, 1994 and the Reference Applications were filed
on 30th August, 1994 i.e. within the stipulated period of 42 days.
Though in Land Acquisition Reference No.28 of 2001, notice under
Section 12(2) of the said Act was issued on 9th July, 1994, the
Reference Application was filed on 30th August, 1994. However, the
State Government did not produce any material to show that the notice
was duly served to the Claimants. Therefore, it is not possible to find
fault with the finding recorded by the learned Trial Judge on the issue
of bar of Limitation.
MARKET VALUE OF LANDS IN GROUPII
22. Now we turn to the second group of First appeals. As held
earlier, the market value of the lands will have to be determined on the
basis of the market value of the land subject matter of the first group.
The relevant date in the first group is 4th January, 1990 and in the
second group, it is 7th March, 1991. There is a gap of about 14
months between the two dates. As held earlier, the escalation taken
by the learned Judge at the rate of 10% per annum will have to be
reduced to 7.5% per annum on the cumulative basis. To that extent,
the market value fixed by the Trial Court will have to be reduced. The
market value of Jirayat I land as of 4th January, 1990 is Rs.83,435/.
Interest for 12 months thereon at the rate of 7.5% per annum will be
Rs.6257.62 i.e. Rs.6258/.
Hence, the market value as of 4th January,
1991 will be Rs.89,693/(
Rs.83,435 + 6258). By adding interest at the
rate of 7.5% per annum for a period of two months on Rs.89,693/which
is equivalent to Rs.1120/,
as of 7th March, 1991, the market
value will be Rs.90,813/(
Rs.89,693/+
Rs.1120/).
The market
value of successive category of Jirayat lands will have to be calculated
by adding Rs.2,000/Per
Hectare. Market value of Bagayat I
land as
of 4th January, 1990 was Rs.1,25,153/.
Interest for 12 months thereon
will be Rs.9386/.
Hence, market value as of 4th January, 1991 will be
Rs.1,34,539/(
Rs.1,25,153 + Rs.9386). The interest on the said
amount for two months will be Rs.1,682/.
Hence, market value as of
7th March, 1991 will be Rs.1,36,221/(
Rs.1,34,539 + Rs.1682).
Market value of further categories of bagayat land will have to be
determined by adding Rs.2,000/Per
Hectare. Therefore, the market
value of the various categories of the lands in the second group is as
under::::
1. Jirayat –I Rs.90,813/Per
Hectare
2. Jirayat –II Rs.92,813/Per
Hectare
3. Jirayat –III Rs.94,813/Per
Hectare
4. Jirayat IV
Rs.96,813/Per
Hectare
5. Bagayat –I Rs.1,36,221/Per
Hectare
6. Bagayat II
Rs.1,38,221/Per
Hectare
7. Bagayat III
Rs.1,40,221/Per
Hectare
8. Bagayat IV
Rs.1,42,221/Per
Hectare
MARKET VALUE OF TREES IN GROUPII
23. The market value of the land in the second group of the
First Appeals has been determined on the basis of the market value of
the land having orchards (fruit bearing trees). Therefore, no separate
compensation can be granted on account of loss of fruit bearing trees in
the light of the decision of the Apex Court in Ambya Kalya Mhatre
(supra).
24. Even in this case, the Claimants have examined the witness
Uttamrao Patil (PW2)
from the Agro Horticulture Department. In this
case, the awards under Section 11 are made on 27th April, 1994. He
has visited the acquired lands in March, 1992 and March, 1993. The
possession was taken only after the awards. Therefore, for the reasons
given in the first group, even in this group, the said evidence will have
to be kept out of consideration.
VALUATION OF POT KHARABA LANDS IN BOTH GROUPS:
25. There is one more aspect regarding valuation of the pot
kharaba lands. In the first group, in the impugned judgment, the
learned Trial Judge has observed that the Claimants have neither
pleaded nor proved that the rate of Rs.200/Per
Hectare for Pot
kharaba land is inadequate. Perusal of the memorandum of Appeal in
First Appeal No.699 of 2002 shows that there is no specific challenge to
the said finding. In any event, in the Reference itself, there is no
challenge to the fixation of the market value as regards the Pot kharaba
land. In the second group, the perusal of the impugned judgment
shows that there is a specific challenge in the References. In Paragraph
26 of the common judgment, it is pointed out that there was a
challenge to the quantum of compensation fixed as regards the Pot
kharaba land. The learned Judge came to the conclusion that the
market value of the Pot kharaba land will be 50% of the market value of
Jirayat land. Accordingly, 50% of the market value has been awarded
by the learned Judge only in respect of Pot kharaba lands.
26. As regards the method of taking market value of Pot
kharaba land equivalent to 50% of Jirayat land, the Division Bench of
this Court in the case of Special Land Acquisition Officer (III), Jalgaon
and Another v. Bhagwat Vithal Sonwane [2009(4) Mh.L.J. 308) has
quoted with the approval the earlier decision of this Court in the case of
State of Maharashtra Vs Pralhad Bajrang Magar (supra) and has held
that the market value of the Pot kharaba land was equivalent to the
50% of the market value of Jirayat lands. Therefore, no interference is
called as regards the market value fixed in respect of Pot kharaba lands
in the second group.
FINAL CONCLUSION:
27. Thus, the net result of the aforesaid discussion is that the
market value of the lands in both the groups will have to be reduced to
the extent set out in the earlier part of the judgment. However, the
impugned judgments and awards will have to be corrected by granting
benefit under Section 28 of the said Act on all the three components.
Even in cases where the Claimants have not preferred the Appeals, the
benefit of full statutory benefit under Section 28 of the said Act will
have to be granted inasmuch as the said benefit was denied on the basis
of the decision of the Apex Court, in the case of Prem Nath Kapur
(supra) which is no longer a good law. The interest under Section 28
of the said Act has to be granted on all the three components of Section
23 of the said Act. The benefit of Section 28 of the said Act is available
as a matter of right whether a Claim in that behalf is made or not.
Therefore, even in cases where the Claimants have not preferred
Appeals or crossobjection,
the benefit of Section 28 of the said Act will
have to be granted by exercising power under Rule 31 of Order XLI of
the Code of Civil Procedure, 1908. As regards the benefit of interest
under Section 28, even the Court fees will not be payable.
28. Hence, we pass the following order:
(a) The total market value of the lands notified by a
Notification under Section 4(1) of the Land
Acquisition Act, 1894 published in Government
Gazette on 4th January, 1990 shall be as under:
1. Jirayat –I Rs.83,435/Per
Hectare
2. Jirayat –II Rs.85,435/Per
Hectare
3. Jirayat –III Rs.87,435/Per
Hectare
4. Jirayat IV
Rs.89,435/Per
Hectare
5. Bagayat –I Rs.1,25,153/Per
Hectare
6. Bagayat II
Rs.1,27,153/Per
Hectare
7. Bagayat III
Rs.1,29,153/Per
Hectare
8. Bagayat IV
Rs.1,31,153/Per
Hectare
(b) The total market value of the lands notified by a
Notification under Section 4(1) of the Land
Acquisition Act, 1894 published in Government
Gazette on 7th March, 1991 shall be as under:
1. Jirayat –I Rs.90,813/Per
Hectare
2. Jirayat –II Rs.92,813/Per
Hectare
3. Jirayat –III Rs.94,813/Per
Hectare
4. Jirayat IV
Rs.96,813/Per
Hectare
5. Bagayat –I Rs.1,36,221/Per
Hectare
6. Bagayat II
Rs.1,38,221/Per
Hectare
7. Bagayat III
Rs.1,40,221/Per
Hectare
8. Bagayat IV
Rs.1,42,221/Per
Hectare
(c ) The market value of Pot kharaba lands is confirmed;
(d ) The Claimants will be entitled to statutory benefits
under Section 23(1A),
23(2) and 28 of the said Act.
Interest under Section 28 shall be payable on entire
excess compensation consisting of components of
market value of the land, interest under Section
23(1A)
and solatium under Section 23(2) of the said
Act;
(e) The rest of the impugned Judgments and Awards are
confirmed;
(f) The Appeals preferred by the claimants as well as by
the State of Maharashtra are partly allowed on above
terms;
(g) We make it clear that the statutory benefits under
Section 28 of the Land Acquisition Act, 1894 shall be
available even to those Claimants who have not
preferred Appeals or Crossobjections;
(h) There will be no orders as to costs in the Appeals in
this Court.
(i) The Trial Court shall determine the compensation
amount payable in terms of the modified Awards
within a period of four months from the date on
which writ of this Judgment is received. The
parties shall be heard by the learned Judge before
determination of amount.
(j) Civil Applications in the aforesaid First Appeals do
not survive and the same are disposed of.
( SHRIHARI P. DAVARE, J ) ( A.S. OKA, J )
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