Vijaylakshmamma
Rao
Bahadur
v.
Collector
of
Madras) (this case is referred in the case reported as
2012 (2) Mh.L.J. 530 by the Apex Court) it is laid down
that the sale instances should be bona fide transactions.
When there are strong circumstances like found in the
present case, the Reference Court can refuse to use the
sale instances of highest value for fixing market price.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
First Appeal No.2663 of 2013
The Manager,
Sangamner Audyogik Sahakari
Vasahat Maryadit,
Versus
The Government of Maharashtra
CORAM: T.V. NALAWADE, J.
Judgment pronounced on :
7th July 2014.
Citation;2015(2) MHLJ 50
after
admission
made
returnable
forthwith by consent. Heard both the sides for final
All the appeals are filed against common
3)
disposal.
judgment and award of the Land Acquisition References
filed by the respondents-claimants and which were
pending in the Court of the Civil Judge, Senior Division,
Sangamner, District Ahmednagar.
The Reference Court
has allowed the Land Acquisition Reference Nos.45/2004
to 49/2004 (Old Nos.247/2004 to 251/2004) and has
enhanced the compensation from Rs.16,500/- per hector
to Rs.16.5 lakh per hector. Other consequential reliefs are
also given. Common evidence was given by the claimants
in the aforesaid five proceedings.
4)
The claimants were owners of different portions
of land Gat No.67/1 situated at Ghulewadi, Taluka
Sangamner. The portion of 11.5 R of claimants from LAR
No.45/2004 is acquired. The portion of 7 R of the
claimants from LAR No.46/2004 is acquired. The portion
of
34 R of the claimants from LAR No.47/2004 is
acquired. The portion of 8 R of the claimants from LAR
No.48/2004 is acquired and the portion of 17 R of the
claimants from LAR No.49/2004 is acquired. The land is
acquired for expansion of area of Industrial Development
Corporation. It was established there about 30 years prior
to the date of notification issued under section 4 of the
Land Acquisition Act 1894 (for short, "the Act'). This land
is situated at a distance of 1.5 km from Pune - Nashik
highway. The land was jirayat land and in four cases the
portions were already converted for Non Agricultural use.
5)
The lands under acquisition were classified on
the basis of revenue into four groups of Jirayat land. The
Special Land Acquisition Officer (for short, "the SLAO")
considered the sale instances, the evidence collected from
the office of Talathi. After receiving the notice, objections
were taken by the claimants to the acquisition and they
had contended that the price of the land per acre was
around 9 to 10 lakhs rupees (around Rs.22.5 to 25 lakh
per hector). The SLAO considered the sale instances
produced before him. Some sale instances were rejected
by the SLAO as they were of very small area and there
was huge difference in prices. The SLAO held that Gat
No.67/1 was Jirayat land and market price per hector was
fixed at Rs.1.18 lakhs. There were no trees, no well, no
constructions in these portions. Portion of 0.54 R was
found Pot kharaba, of no use and for it the price was fixed
per hector as Rs.1500/-.
6)
The acquiring body filed Written Statement and
denied the contentions of the claimants that price per
hector was Rs.22.5 to 25 lakhs at the relevant time. On
behalf of the claimants, claimant Dattatraya Damodhar
Pabalkar was examined. The Manager of the Industrial
Development
Corporation
namely
Kashinath
Kundlik
Dongare was examined by the acquiring body.
The
revenue map of village Ghulewadi was produced on the
record. The claimants produced copies of sale deeds on
which they wanted to rely. The acquiring body produced
index extracts in respect of sale instances.
Notification under section 4 of the Act was
7)
issued on 25-11-1999. The Reference Court has placed
reliance on the sale instance described in Exhibit
30
dated 24-2-1998. On the basis of this sale instance the
price per R is fixed as Rs.15,000/-. The Reference Court
has given increase of 10% in the price for one year as the
notification under section 4 was published after about one
year of this sale instance and thus the market price at the
relevant time is fixed at Rs.16,500/- per R.
As per the record, there is substantive evidence
8)
of one of the claimants at Exhibit 23. It is to the effect
that these claimants had purchased the portions, which
are acquired for the commercial purpose, under various
sale deeds from the year 1997. The portion of 7 R from
LAR No.46/2004 was purchased by the said claimants on
3-11-1997 for the consideration of Rs.80,000/- under sale
deed at Exhibit 36. The portion of 34 R was purchased by
the claimants from LAR No.47/2004 for the consideration
of Rs.2.75 lakhs under sale deed Exhibit 38. The portion
of 8 R from LAR No.48/2004 was purchased by the
claimants from the said proceeding on 3-2-1998 for the
consideration of Rs.91,000/- and portion of 17 R from LAR
No.49/2004 was purchased by the claimants from the said
proceeding under sale deed at Exhibit 35 dated 16-10-
1997 for the consideration of Rs. one lakh. In these sale
instances it is mentioned that
all these portions were
already converted for Non Agriculture use. However, the
record like NA order was not produced to show the date
on which the application was made. The evidence is given
that these claimants wanted to use the aforesaid portions
for commercial purpose and so they had purchased those
portions. The portion of 11.5 R from LAR No.45/2004 was
purchased by the claimants of that proceeding under sale
instance at Exhibit 34 for the consideration of Rs.75000/-
on 16-10-1997. This portion of land was not converted to
NA use but the claimants gave oral evidence that they
had applied for such conversion.
9)
As per the record, which was available before
the Reference Court and which includes the award
delivered by the SLAO, the acquiring body had sent the
proposal in the year 1999 for taking steps for acquisition
of the lands
and the SLAO was appointed and further
procedure was followed. The aforesaid sale-deeds under
which the claimants had purchased the acquired portions
and the award show that exactly the same portions which
came to be acquired, were purchased by the claimants
under the aforesaid sale deeds. There are maps of the
portions which were purchased by the claimants and they
show that specific portion which was to be acquired for
aforesaid project was purchased even when the vendors
were having more portion in the same number. These
circumstances
lead
to
only
one inference
that
the
purchasers/claimants knew the exact portions for which
there was the proposal of acquisition. Two of the aforesaid
sale deeds were of 16-10-1997. These circumstances
cannot be ignored by the Reference Court as only bona
fide sale instances are required to be used for fixing the
market price.
10)
At Exhibit 33 there is another sale instance of
portion of 47 R which is part of Survey No.67/2 from the
same village and it is dated 25-6-2009. This portion was
shown to be sold for the consideration of Rs.20.11 lakhs.
The Award shows that this portion was acquired for the
same project and so this transaction also cannot be
11)
treated as a bona fide transaction.
The sale deed at Exhibit 30 used for fixing the
market price by the Reference Court was executed on 24-
2-1998. The purchaser was a partnership firm of which
Tukaram Patilba Shinde was the partner and he was also
vendor of the property. It was jirayat land not converted
having any facility of irrigation,
for NA use. It was not
well or any construction on it. It was part of Survey No.64.
Between Survey No.64 and the public road there is survey
No.63 as per the map available on the record. And the
portion of 20 R was sold for a consideration of Rs.3 lakhs
(approximate Rs.15000/- per R). Considering the date of
transaction of Exhibit 30 and the aforesaid circumstances
like the transactions of two of the claimants dated 16-10-
1997 it is not possible to accept the transaction in Exhibit
30 as a bona fide transaction.
Further, the vendor and
purchaser were almost the same in Exhibit 30. For getting
many benefits such transactions are made and the
possibility that in anticipation of the acquisition of
adjacent lands such transaction was made also cannot be
12)
ruled out.
There is one more sale instance mentioned in
Exhibit 31 which is in respect of 10 R portion from Survey
No.257/2K (Old No.389) dated 26-8-1996. This land is not
situated in the vicinity of the land acquired, but it was
converted to Non Agriculture use. The consideration is
shown as Rs.1.85 lakhs. It was within village panchayat
residential area.
The two sale instances mentioned in Exhibit 37
13)
and Exhibit 38 show that one Bharatkumar
Tehalram
Nihalani purchased 8 R portion for consideration of
Rs.91,000/- under the transaction dated 3-2-1998 and
under sale deed at Exhibit 38 his father and uncles had
purchased 34 R portion on 5-1-1998 for consideration of
Rs.2.75 lakhs. Thus within one month the same family
gave higher rate of Rs.2000/- per R. Such circumstances
also cannot be ignored as such transactions create
probability that by misusing the information, the claimants
were purchasing the property and were creating some
false record. The aforesaid sale instances in respect of the
property actually acquired show that those portions were
purchased by the claimants for consideration which was
between R.5,500/- per R and Rs.10,000/- per R.
14)
The portions acquired were purchased by the
claimants within two years prior to the date of notification
different
rates
They were purchased at
under section 4 of the Act.
even
by
the
same
family.
These
the
price,
circumstances have created a clear probability that even
consideration
shown
in
the
aforesaid
transactions by the claimants was not actually given. They
cannot be called as bona fide transactions. Apparently
these are the cases of fraud and false price is shown. It is
unfortunate that the Reference Court did not notice the
aforesaid circumstances.
15)
acquiring
The
learned
counsel
for
the
appellant,
body, has placed reliance on some reported
cases like - AIR 2011 SC 54 (Radha Mudaliyar v. Special
Tahsildar (Land Acquisition), T.N.H. Board)
and (2013)
11 SCC 426 (Salah Begum v. Land Acquisition Officer).
has
placed
reliance
on
some
claimants/respondents
On the other hand, learned counsel for the original
reported cases like (1) 2012 SAR (Civil) 441 Supreme
Court (Mehrawal Khewaji Trust v. State of Punjab) ; (2)
2012(2) Mh.L.J. 530 (Chindha v. Special Land Acquisition
Officer); (3) AIR 2001 SC 1117 (Land Acquisition Officer
& Mandal Revenue Officer v. V. Narasaiah) ; and, (4)
Judgment dated 22nd June 2009 delivered by Division
Bench of Bombay High Court in First Appeal No.182 of
1996 and connected matters. The learned counsel for the
original claimants also placed reliance on Government
Resolution dated 31st October 1994 issued by the State
Government laying down the procedure which needs to be
followed for land acquisition.
16)
In the case of Salaha (cited supra) the Apex
Court has discussed the use of comparative sale method
for the purpose of Section 23 of the Act. It cannot be
disputed that ordinarily the sale instances of identically
situated lands need to be considered and the sale instance
of higher value needs to be used for determining the
market price on the relevant date. Considering the object
behind this interpretation, when the land acquired was
itself purchased by the claimants recently, within five
years prior to the date of notification under section 4 of
the Act, the price quoted in that sale deed also cannot be
ignored by the Reference Court provided that it was a
bona fide transaction. If in a case like the present one,
there is clear probability that after learning about the
proposal of the acquisition, the land was purchased by the
claimants, even that sale instance cannot be used for
determining the market price. In the present case, even if
it is presumed that the transactions of the claimants were
bona fide, in that case by giving 10% increase the
Reference Court could have fixed the market price of the
respective
portions.
circumstances,
the
Even
when
Reference
there
Court
were
ignored
such
those
circumstances and fixed marked price at the rate of
Rs.15000/- per R on the basis of the sale instance of
different land and when that transaction cannot be called
as bona fide transaction. Thus, the Reference Court has
committed a grave error in fixing the market price and
using the exemplar from the sale instance of different
property when the circumstance of sale of the same
17)
property within relevant period was available.
FA 2663 of 2013 group
In the case of V. Narasaiah (cited supra) the
Apex Court has ruled that while fixing the market value of
the acquired land under section 23 of the Act, certified
copy of sale instance of similar land situated in the vicinity
can be relied upon by the Reference Court and for that,
examination of Vendor, or Vendee or other persons
connected with the same is not necessary. The Apex Court
has considered the provision of Section 51-A of the Act
and has discussed the purpose behind it. It is observed
that the parties face practical difficulties to prove such
transactions and discretion is given to the Court to use
certified copy of the sale transaction in evidence. The
Apex Court has, however, made it clear that there is no
compulsion in this regard and there is discretionary power
with the Court. It is further observed that merely
accepting of such evidence does not mean that the Court
is bound to treat the transaction as reliable evidence. If
the Court admits such document in evidence, that does
not prevent the parties to substantiate their respective
cases by adducing evidence. This provision and the
18)
considering the cases like the present one.
aforesaid interpretation need to be kept in mind while
It is true that the Reference Court is the Court
of original jurisdiction and both the sides are expected to
lead evidence to substantiate their respective cases. In
view of the provisions of Sections, 18, 23, 25 and 51-A of
the Act it can be said that when the matter is refereed to
the Reference Court by the authority, the authority, the
SLAO, must send not only the material produced along
with the application by the claimants but also the material
which was considered by him for fixing the market price.
This is because he is referring the matter to the Reference
Court for considering the grievance of the claimant. It is
noticed that the officers of the State / acquiring body are
not that vigilant and they do not show interest and
initiative even to produce the record
of sale instances
which was before the SLAOs. Due to such approach of the
officers, the Reference Courts are
misled most of the
times. In view of the purpose behind the procedure given
in the aforesaid provisions, this Court has no hesitation to
observe that the Reference Court is expected to go
through the material which formed basis for fixing the
market price by the SLAO. If that procedure is followed,
possible mistakes like the present one committed by the
Reference Court can be minimised. After all it is public
money and from that angle also the Reference Court is
expected to consider the relevant material which was
(M.
In the case reported as (1969) 1 MLJ 45 (SC)
19)
available before the SLAOs.
Vijaylakshmamma
Rao
Bahadur
v.
Collector
of
Madras) (this case is referred in the case reported as
2012 (2) Mh.L.J. 530 by the Apex Court) it is laid down
that the sale instances should be bona fide transactions.
When there are strong circumstances like found in the
present case, the Reference Court can refuse to use the
sale instances of highest value for fixing market price.
20)
In view of the discussion made above, this
Court holds that interference is warranted in the decision
given by the Reference Court and the matters need to be
remanded back for fresh consideration. In the result,
following order :--
All the appeals are partly allowed with no order
21)
FA 2663 of 2013 group
as to cost. The judgment and award delivered by the
Reference Court in all the Land Acquisition References is
hereby set aside and the matters are remanded back to
the Reference Court for fresh consideration. The parties
to appear before the Reference Court on 11th August
2014. The Reference Court is to decide the matters afresh
within three months thereafter. The record & proceeding
Sd/-
(T.V. NALAWADE, J.)
be sent back forthwith to the Reference Court.
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