In the case of Suresh Kumar v. T. I. Trust(supra) the Apex Court
has stated that market value should be correctly determined and there should be
neither unjust enrichment on the part of acquirer nor undue deprivation on the part
of owner. The market value must be determined by reference to the price which a
willing vendor might reasonably expect from willing purchaser. The land is not to
be valued merely by reference to the use to which it has been put on the date of
notification but also with reference to the use to which it is reasonably capable of
being put in the future.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 138 OF 2003
Deputy Collector(Rev)
and Land Acquisition
Office, Panaji-Goa.
versus
Rajendra Vassudev Deshprabhu,
(Dead) through L.Rs.
CORAM : A. P. DESHPANDE &
N. A. BRITTO, JJ.
DATE : 14TH OCTOBER, 2008.
Citation:2009(3) MHLJ 530
This is a State Government's appeal and is directed against
Judgment/Award dated 22-11-2002 of the learned reference Court (Additional
District Judge, Mapusa), by which the compensation payable to the Respondents
(Applicants, for short) has been enhanced from Rs.17/- per sq. meter to Rs.175/-
per sq. meter as against the claim of the said Applicants to Rs.350/- per sq. meter.
2. Some facts are required to be stated to dispose of this appeal.
By virtue of Notification issued under Section 4(1) of the Land
Acquisition Act, 1881, published on Gazette dated 1-2-1990 the Government
acquired 106864 sq. meters of land. The subject matter of reference from which
the present appeal arises is 5070 sq. meters of land of survey no.284/0 of Pernem,
being the southern and western portion of their property belonging to two brothers
namely Rajendra and Raghuraj, since deceased; and was admittedly a garden land,
having different types of trees, and the L.A.O. by award dated 27-3-1991 paid
compensation at the rate of Rs.17/- per sq. meter and apportioned the same on
50:50 basis i.e. 1/4
th
each was paid to the legal representatives of the said
Rajendra and Raghuraj and the balance 50% to the three tenants, as per award, but
as per the Applicants there were four tenants amongst whom the said 50%
compensation was equally distributed. As regards the balance free hold land, the
same is the subject matter of First Appeal No.123/2003 wherein we have allowed
the cross objections and fixed the market value at Rs. 78.00 per sq. meter.3
3. The Applicants are the legal representatives of the said Rajendra.
Dissatisfied with the award of the L.A.O., the Applicants got a reference made,
claiming enhancement of compensation at the rate of Rs.350/- per sq. meter and in
support of the said reference the Applicants examined Applicant No.1(a) and who
produced six awards and six sale deeds which are tabulated herein below, for easy
reference:-
Exh.No. Date of
Notification
/sale
Area
in
sq. m.
Price Distance
in kms.
Village Nature of land
1. AW1/B 20-8-1983 200 Rs.60/- 4 kms. Corgao garden
2. AW1/C 9-2-1984 530 Rs.20/- 4.5 kms. Dhargal Garden/paddy
3. AW1/D
and E
27-11-1986 1200 Rs.75/- ½ km. Poraskadem bharad
4. AW1/F
and I
7-9-1988 590 Rs.79.50 2 kms. Naibaga _
AW1/G 16-4-1985 5533 Rs.100/- 0.6 _ garden
5. AW1/H 22-6-1989 30300 Rs.123/- 2 kms. Pernem _
6. A28 10-11-1988 4200 Rs.120/- Pernem _
7. AW1/J 28-11-1985 160 Rs.300/- 0.5 Pernem garden
8. AW1/K 22-12-1987 178 Rs.100/- 0.7 Pernem garden
9. AW1/L 25-9-1989 100 Rs.200/- 1.3 Pernem Bharad/garden
10
.
AW1/M 1-1-1991 100 Rs.100/- 1.5 Virnoda _
11 AW1/N 19-8-1985 150 Rs.150/- 1.5 _ Garden
12 AW1/O 30-12-1991 100 Rs.600/- 0.5 _ Bharad
4. AW1/Dr. Rajendra, in his evidence stated that the acquired land was
similar to the land of some of the sale deeds/awards and superior, as against
others. For the view we are taking we do not propose to refer to the details of
evidence given by him. The Applicants examined AW2/Gadekar to prove the sale4
deed dated 25-9-1989/Exh.AW1/L and also examined Architect AW3/Shri Dessai,
and the latter after considering the said sale deed-Exh.AW1/L as the most
comparable instance valued the acquired land at Rs.170/- per sq. meter.
5. The learned reference Court ignored the sale deeds of Exhs.AW1/K,
AW1/L, AW1/M and AW1/N as they were of small plots of land, and
Exh.AW1/O though being of garden land, because it was a post notification sale
deed. The learned reference Court referred to the award-Exh.AW1/B in which
compensation awarded was Rs.60/- per sq. meter and observed that if an increase
of 10% was given for every subsequent year, the compensation payable would
work out to Rs.72/- per sq. meter, and since the acquired land was much better
located it would have fetched around Rs.80/- per sq. meter. The learned reference
Court also referred to the award-Exh.AW1/C in respect of 530 sq. meters of
garden land like the acquired land, and then to Exh.AW1/D for which
compensation was paid at the rate of Rs.75/- per sq. meter and observed that
Exh.AW1/C was of inferior land, being bharad, and if 25% increase was given it
would work out to Rs.100/- per sq. meter and in the year of acquisition it would
work out to Rs.140/- per sq. meter. Ultimately, the learned reference Court
referred to the sale deed-Exh.AW1/J by which land was sold at the rate of
Rs.300/- per sq. meter on or about 28-11-1985 and further observed that if the rate
was enhanced at the time of acquisition it would work out to Rs.420/- per
sq. meter and if proportionate deduction was given the rate would work out to5
Rs.250/- per sq. meter, but without assigning any further reason why the same rate
was not being given to the Applicants in respect of the acquired land, the learned
reference Court proceeded to fix arbitrarily the market value of the acquired land
to Rs.175/- per sq. meter. This market rate is higher than the one assessed by
Applicants' own witness Shri Dessai and is presumably based on the sale deed
-Exh.AW1/J and the self serving and uncorroborated testimony of AW1/Dr.
Vassudev. The approach of the learned reference Court can be said to be totally
erroneous in that the learned reference Court has not arrived at the market value
either on the basis of most comparable sale instance or award nor on the basis of
average of such instances, assuming such a method was otherwise permissible,
and on this count alone the impugned award deserves to be set aside. Exh.AW1/J
was not close either from point of time or distance and was of free hold land. The
learned reference Court also did not take care to ensure that only 50% of the
market value determined would be payable to the Applicants. Learned Counsel on
behalf of the Applicants submits that such a clarification could be done by this
Court. At the same time, it must be observed that the finding of the learned
reference Court that the provisions of the Goa Land Use(Regulation) Act, 1991
which came into force w.e.f. 2-11-1990 were inapplicable to the facts of the
present case cannot be faulted as the notification in this case under Section 4(1) of
the Act was gazetted on 1-2-1990.
6. The determination of market value of land with building
potentialities is an intricate exercise which calls for collection and collation6
of economic criteria and though at times some guess work is permissible,
in this what is impermissible are feats of imagination. The Apex Court in
Chimanlal Hargovinddas v. Special Land Acquisition Officer
(AIR 1988 SC 1862), inter alia, has stated that if sale instance method is to be
used then the Court has to correlate the market value reflected in the most
comparable instance and the most comparable instance, out of the genuine
instances, have to be identified on the consideration of proximity from time angle
and proximity from situation angle and after sale instance is identified to provide
the index of market value, the price reflected therein may be taken as the norm
and the market value of the land under acquisition and can be deducted by making
suitable adjustments for the plus and minus factors vis-a-vis the land under
acquisition by placing the two in juxtaposition. The Apex Court in Shaji
Kuriakose and another v. Indian Oil Corporation Limited and
others((2001) 7 SCC 650) has stated that Courts adopt sales method of
land because a method furnishes the evidence for determination of the market
value of the acquired land at which a willing purchaser would pay for the acquired
land if it is sold in the open market at the time of issue of notification
under Section 4 of the Act but before that is done certain factors are required
to be fulfilled, and only on fulfillment of those factors, the compensation can be
awarded, according to the value of the land reflected in the sales, and, the factors
laid down are:-7
1. The sale must be a genuine transaction,
2. The sale deed must have been executed at the time of
proximate to the date of issue of notification under Section 4
of the Act.
3. That the land covered by the sale must be in the vicinity of
the acquired land.
4. That the land covered by the sales must be similar to the
acquired land, and
5. The size of the plot of the land covered by the sale be
comparable to the land acquired,
and, if all these factors are satisfied then there is no reason why the sale value of
the land covered by the sales be not given to the acquired land and in case of
dissimilarity as regards the locality, shape, size or nature of the land between the
land covered by sales and the land acquired, it is open to the Court to
proportionately reduce the compensation for the acquired land than what is
reflected in the sales depending upon the disadvantages attached with the acquired
land.
7. If at all any sale or award instance was to be considered as a guide
for the purpose of fixing the market value of the acquired land, it ought to have
been Exh.28 which was proximate to the date of notification and was in the
vicinity of the acquired land but there is not even a whisper to the said award
Exh.28 in the impugned Judgment. The land of the said award of Exh.28 was
closest both in point of time and location.8
8. Be that as it may, Mr. Rivonkar, learned Government Advocate
submits, referring to the various provisions of the Tenancy Act(G.D.D.
Agricultural Tenancy Act, 1964) that the acquired land being tenanted land had
no building potential. Learned Government Advocate further submits that the
acquired land being agricultural land the valuation could have been done at the
most on the basis of the annual yield. Learned Counsel further submits that the
learned Reference Court also did not consider that there was an impediment,
namely, that the land could not have been used for building purposes.
Alternatively, Mr. Rivonkar has submitted that the acquired land being
agricultural land there were restrictions for its development and on account of the
said restrictions at least 50% deduction ought to have been made by the learned
reference Court in the price awarded and in this context Mr. Rivonkar has placed
reliance on the case of Comunidade of Candolim v. Deputy
Collector(North)(2005(1) Goa L.R. 25) and to the case of Comunidade of
Sancoale v. Government of Goa and another (unreported decision of this Court
dated 8-8-2008 in First Appeal No.158 of 2003), wherein learned Counsel
submits, that a deduction 50% was taken because the acquired land was
Comunidade land.
9. Indeed, in the case of Comunidade of Candolim v. Deputy
Collector(North)(supra) a Division Bench of this Court has stated that as the
subject land belonged to the Comunidade, therefore it was not free hold land;
Under Article 153 of the Code of Comunidades, the Governor had the powers to9
authorize the exchange of land of Communidades and determine its requests for
grant of leases. Under Articles 179 and 180, the lands belonging to the
Comunidades can be sold only when in liquidation proceedings the assets are
found to be inadequate. In short, the land belonging to the Comunidades could not
be utilized for a purpose which would enhance its market value and the
restrictions imposed on such land under the Code of Communidades clearly show
that its free use is not permissible and when the land under acquisition suffers
statutory restrictions, the obvious consequences that follow is on its market value,
and, therefore, such land cannot be compared with other sale instances in respect
of the free hold land. It may be noted here that, in the case of Comunidade of
Querim (unreported Judgment dated 21-12-2004 in First Appeal No.5 of 2004) a
Division Bench of this Court had approved a deduction of 25% in case of
comunidade land as compared to free hold land. In the said case of Comunidade
of Candolim v. Deputy Collector(North)(supra) the Division Bench had also
occasion to refer to a three Judge Bench decision of the Apex Court in the case of
Special Deputy Collector and another v. Kurra Sambasiva Rao and others
(AIR 1997 SC 2625) wherein the Apex Court had observed that the burden of
proof that the amount awarded by the L.A.O. is not adequate is always on the
claimant. The burden is to adduce relevant and material evidence to establish that
the acquired lands are capable of fetching higher market value than the amount
awarded by the L.A.O. or the L.A.O. proceeded on a wrong principle of law. The
object of the inquiry in a reference under Section 18 of the Act is to bring on
record the price which the land under acquisition was capable of fetching in the10
open market as on the date of the notification. What is fair, reasonable and
adequate market value is always a question of fact which depends on the evidence
adduced, circumstantial evidence and probabilities arising in each case.
10. On the other hand, Mr. M. S. Sonak, learned Counsel on behalf of
the Applicants has submitted that even in case the subject land was agricultural it
did not mean that it did not have building potential and in case there were tenants
it would only peg down the price and for that suitable deduction can be made.
Learned Counsel further submits that even under the Tenancy Act there was no
clog on conversion and in that regard Section 3(1-A) of the Tenancy Act has been
referred to. Learned Counsel further submits that there was no legal evidence
produced by the Respondents to show that there were tenants in the acquired
property and in any event it was not shown that the tenants were those who were
protected under the Tenancy Act. Learned Counsel further submits that the
Government in the case of tenants, generally contends that the tenants are unable
to put the land to any other use, other than agriculture, and deprives them from
paying fair market value and in case of owners contends that the owners cannot
put the land to any use as the land is tenanted and thus practically deprives both
the owners and the tenants from receiving adequate and fair market value.
Learned Counsel has placed reliance on two recent unreported decisions of this
Court, both dated 24-9-2008 in First Appeal No. 101/2003 and First Appeal
No.216/2003. The first decision was followed in the second, and, in fact both
pertain to cases where the applicability of Goa Land Use(Regulation) Act, 199111
was urged on behalf of the Government. Learned Counsel has also placed reliance
on the case of Suresh Kumar v. T. I. Trust, Bhopal (AIR 1989 SC 1222).
11. That the acquired land was garden land and was tenanted was not a
fact which was ever disputed on behalf of the Applicants. In fact, it was admitted
before the Land Acquisition Officer that Krishna A. Khautancar, Keshav and
Harichandra had tenancy rights and the L.A.O. had noted that this claim was
rightly supported by form Nos.I and XIV. The Applicants' witness had also
admitted that they had four tenants. Learned Counsel on behalf of the Applicants
submits that the nature of tenancy was not indicated by the Applicants witness
AW1/Dr. Deshprabhu. We are unable to accept such a submission. When the
Applicants accepted that there were four tenants in relation to the acquired
property the only inference to be drawn was that they were the tenants who were
protected under the Tenancy Act and in case it was otherwise it was for the said
AW1/Dr. Deshprabhu to have so indicated. Not only that, the Applicants raised no
objection in 50% of the compensation being paid to them. That is the practice
followed by L.A.Os. Admission is the best form of evidence of facts admitted and
requires no further proof.
12. The Apex Court in M. B. Gopala Krishna and others v. Special
Deputy Collector, Land Acquisition((1996) 3 SCC 594) has stated that a free
hold land and one burdened with encumbrances does make a big difference in
attracting willing buyers. A free hold land normally commands higher12
compensation while the land burdened with encumbrances secures lesser price.
The fact of a tenant in occupation would be an encumbrance and no willing
purchaser would willingly offer the same price as would be offered for a free hold
land.
13. In the case of Suresh Kumar v. T. I. Trust(supra) the Apex Court
has stated that market value should be correctly determined and there should be
neither unjust enrichment on the part of acquirer nor undue deprivation on the part
of owner. The market value must be determined by reference to the price which a
willing vendor might reasonably expect from willing purchaser. The land is not to
be valued merely by reference to the use to which it has been put on the date of
notification but also with reference to the use to which it is reasonably capable of
being put in the future.
14. The Fifth Amendment to the Tenancy Act came into force w.e.f.
8-10-1976. Section 2(1-A) defines the expression “agriculture” to include
horticulture and raising of food crops, grass or garden produce, but does not
include allied pursuits. Section 2(7-A) defines the expression “garden” to mean
land use primarily for growing coconut trees, arecanut trees, cashew trees or
mango trees. Section 18A of the Tenancy Act deals with purchase of land on
tillers' day by tenants and sub-section(1) provides that on the tillers' day, every
tenant shall, subject to other provisions of the Act, be deemed to have purchased
from his landlord the land held by him as a tenant and such land shall vest in him13
free from all encumbrances subsisting on the said day. Sub-Section(2) further
provides that where a tenant, on account of his eviction from the land by the
landlord before the tillers' day, is not in possession of the land on the said day, but
has made or makes an application for possession of the land under Section 18
within the period specified therein, then, if the application is allowed by the
Mamlatdar or, as the case may be, in appeal by the Collector or in revision by the
Administrative Tribunal, he shall be deemed to have purchased the land on the
day on which the final order allowing the application is passed. It is not necessary
to refer to the other sub-sections of Section 18A. Section 18D deals with the
purchase price payable to the landlords and sub-section(1) thereof provides that
the purchase price payable by a tenant to the landlord in relation to the land which
has been deemed to have been purchased by the tenant under Section 18A shall be
the amount indicated in column 2 of the Table shown therein in respect of the
categories of land specified in the corresponding entry in column 1. In other
words, the said Table fixes the purchase price for garden land, rice land, etc. as
indicated therein. Section 18E deals with the the mode of payment of purchase
price by a tenant and sub-section(1) thereof provides that on the determination of
the purchase price by the Mamlatdar under Section 18C, the tenant shall deposit
the purchase price with the Mamlatdar in the manner provided in this Section.
Sub-Section(2) thereof provides that the tenant shall have the option to deposit the
purchase price either in lumpsum or in ten equal annual instalments. The other
sub-section deals with the payment of the first, second or subsequent instalments,
and, sub-section(5) provides where a lumpsum payment or any instalment of the14
purchase price has not been deposited on the due date, the amount in default shall
carry interest at the rate of 6% per annum. Section 18G deals with recovery of
purchase price as arrears of land revenue by the landlord and Section 18H deals
with the issuance of certificate of purchase on deposit of the purchase price in
lumpsum or of the first instalment. Section 18K deals with restrictions on transfers
of land purchased under this Chapter and provides that no land purchased by a
tenant under this Chapter shall be transferred by sale, gift, exchange, mortgage,
lease or assignment without the previous sanction of the Mamlatdar; provided
that no such sanction shall be necessary where land is to be mortgaged in favour
of the Government or a co-operative society for the purpose of a loan for affecting
any improvement of such land.
15. A Division Bench of this Court in the case of State of Goa v. Pedro
Antonio((1996) 2 GLT 246) reiterated the principle that the responsibility of
establishing inadequacy of the offer and the market value of the land as on the
date of the notification under Section 4(1) of the Act lies on the claimants. The
learned Division Bench was considering cases, one of which was of a paddy field
situated in the proximity of the Railway Station at Vasco da Gama, where
electricity, water and other civic amenities were available at close distances, and it
was contended that the paddy field had immense potential for building
constructions. The learned Division Bench then referred to the case of P. Ram
Reddy and others v. L.A.O., Hyderabad((1995) 2 SCC 305) and after
considering the guidelines stated therein; held as follows: 15
“Coming to the land in question we have
another hurdle. As we pointed out
earlier, the lands are under the
possession of the tenants. Their tenure is
entirely controlled by the provisions of
the Agricultural Tenancy Act. The
landlord cannot evict the tenant. The
tenant cannot dispose of the land at his
own will, and at the same time the
landlord also cannot dispose of the land
as a willing seller. There are certain
restrictions and legal impediments in its
alienability. Therefore if a tenant wants
to sell his land he has to overcome
certain restrictions put on the
alienability of the land under the
provisions of the Goa, Daman and Diu
Agricultural Tenancy Act particularly
under Section 18K. Section 18K of the
said Act reads as follows:
“18K. Restrictions on transfers of
land purchased under this
Chapter. - No land purchased by
a tenant under this Chapter shall
be transferred by sale, gift,
exchange, mortgage, lease or
assignment without the grievous
sanction of the Mamlatdar:
Provided that no such sanction
shall be necessary where the land
is to be mortgaged in favour of
the Government or a co-operative
society for the purpose of a loan
for effecting any improvement of
such land.”
The restrictions imposed by the Act visa-vis
on the landlord is that he cannot
sell the property except to the tenant.
The restrictions put on the tenant is that
he shall not transfer or alienate or
mortgage the property except with the16
permission of the Mamlatdar. These
restrictions go a long way about the
alienability of the land. We cannot say
what price the land in question will
fetch in a transaction between a willing
seller and a willing purchaser. These
statutory restrictions naturally will have
to be borne by a bonafide purchaser”.
16. Consequently, enhancement granted by the reference Court was set
aside and the awards of the L.A.O. were confirmed.
17. The provisions of the Tenancy Act referred to herein above clearly
show that after the 5
th Amendment came into force from the said appointed date
the said Krishna A. Kauthancar and others, having been tenants, had become
deemed purchasers of the acquired land and the only interest which the Applicants
had in the acquired land was to receive from them the purchase price with interest
and they had no other interest or right in the acquired property. There cannot be
any dispute with the proposition that the acquired land is to be valued, not merely
by reference to the use to which it is being put at the time of notification under
Section 4(1) of the Act but also to the use to which it is reasonably capable of
being put in the near future. There also cannot be any dispute with the proposition
that market value is to be assessed from the point of view of a willing purchaser in
open market conditions at a price he would pay to a willing vendor. Nevertheless
the fact remains that the burden of proof that the amount awarded by the L.A.O.
is not adequate is always on the claimant by producing relevant and material17
evidence to establish that the acquired land was capable of fetching higher market
value then that amount awarded by the L.A.O. or that the L.A.O. had proceeded at
a wrong premise. This burden does not shift to the Government.(See AIR 1997 SC
1779). Applicants who fail to discharge such burden certainly cannot complain
that their rights either under Articles 14 or 300A of the Constitution have been
violated. That answers the submissions of learned Counsel Mr. Sonak. Since the
Applicants had a limited interest in the acquired land i.e. of receiving the purchase
price only of which the said tenants had now become deemed owners, the
acquired land in the hands of the Applicants, could not have been assessed as land
having building potential inasmuch as none of the sale/award instances relied
upon by the Applicants were of similar or comparable land. The said sale
instances appear to have been of land which was free hold and which could have
been used for construction purposes i.e. had building potential. The question of
deduction comes only when lands have potential value.
18. The Applicants, in our view, cannot derive any benefit from the
Judgment in First Appeal No.101/2003 in the case of Special Land Acquisition
Officer and another v. Ramchandra followed in First Appeal No.216/2003
since the said Judgment squarely dealt with the applicability of Goa Land
Use(Regulation) Act, 1991. In fact, the learned Division Bench declined to
entertain the applicability of a plea under the said Act, in the facts and
circumstances of that case, as such a plea was not taken before the reference18
Court and therefore held that it would not be fair, just and proper in the facts and
circumstances of the case, to allow the Government to raise the same in the
appeal. In fact the applicability of the Goa Land Use(Regulation) Act, 1991 was
left open to be decided in an appropriate case. In this case it was clearly stated by
the Respondents' witness that the acquired land was agricultural land, was not
plain, and had no building potential. A question of law can always be raised at any
stage, even in the first appeal, if facts to decide the same are available on record.
A Division Bench of this Court in Sayamma D. Narsingrao v. Punamchand
Raichand Marwadi (AIR 1933 Bom 413) has stated that a point of law can be
taken up for the first time in appeal.
19. In conclusion it may be stated that the Applicants acquired portion
was garden land but tenanted and the tenants had become deemed purchasers of
the same and the only interest which the Applicants had in the said land was to
receive the purchase price, and in such a case no willing purchaser would have
ventured to purchase such a land for building purposes or for that matter for any
other purpose from the Applicants. The said Krishna A Khauntancar and others
were in possession of the land and had become deemed owners of the same. the
learned reference Court was not right in assessing the value of the acquired land as
having building potential based on several awards/sale instances which were of
land dissimilar to the acquired land.19
20. The Appeal therefore deserves to succeed. The impugned
Judgment/Award dated 22-11-2002 is hereby set aside, and, considering the facts
with no order as to costs.
A. P. DESHPANDE, J.
N. A. BRITTO, J.
RD
Print Page
has stated that market value should be correctly determined and there should be
neither unjust enrichment on the part of acquirer nor undue deprivation on the part
of owner. The market value must be determined by reference to the price which a
willing vendor might reasonably expect from willing purchaser. The land is not to
be valued merely by reference to the use to which it has been put on the date of
notification but also with reference to the use to which it is reasonably capable of
being put in the future.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 138 OF 2003
Deputy Collector(Rev)
and Land Acquisition
Office, Panaji-Goa.
versus
Rajendra Vassudev Deshprabhu,
(Dead) through L.Rs.
CORAM : A. P. DESHPANDE &
N. A. BRITTO, JJ.
DATE : 14TH OCTOBER, 2008.
Citation:2009(3) MHLJ 530
This is a State Government's appeal and is directed against
Judgment/Award dated 22-11-2002 of the learned reference Court (Additional
District Judge, Mapusa), by which the compensation payable to the Respondents
(Applicants, for short) has been enhanced from Rs.17/- per sq. meter to Rs.175/-
per sq. meter as against the claim of the said Applicants to Rs.350/- per sq. meter.
2. Some facts are required to be stated to dispose of this appeal.
By virtue of Notification issued under Section 4(1) of the Land
Acquisition Act, 1881, published on Gazette dated 1-2-1990 the Government
acquired 106864 sq. meters of land. The subject matter of reference from which
the present appeal arises is 5070 sq. meters of land of survey no.284/0 of Pernem,
being the southern and western portion of their property belonging to two brothers
namely Rajendra and Raghuraj, since deceased; and was admittedly a garden land,
having different types of trees, and the L.A.O. by award dated 27-3-1991 paid
compensation at the rate of Rs.17/- per sq. meter and apportioned the same on
50:50 basis i.e. 1/4
th
each was paid to the legal representatives of the said
Rajendra and Raghuraj and the balance 50% to the three tenants, as per award, but
as per the Applicants there were four tenants amongst whom the said 50%
compensation was equally distributed. As regards the balance free hold land, the
same is the subject matter of First Appeal No.123/2003 wherein we have allowed
the cross objections and fixed the market value at Rs. 78.00 per sq. meter.3
3. The Applicants are the legal representatives of the said Rajendra.
Dissatisfied with the award of the L.A.O., the Applicants got a reference made,
claiming enhancement of compensation at the rate of Rs.350/- per sq. meter and in
support of the said reference the Applicants examined Applicant No.1(a) and who
produced six awards and six sale deeds which are tabulated herein below, for easy
reference:-
Exh.No. Date of
Notification
/sale
Area
in
sq. m.
Price Distance
in kms.
Village Nature of land
1. AW1/B 20-8-1983 200 Rs.60/- 4 kms. Corgao garden
2. AW1/C 9-2-1984 530 Rs.20/- 4.5 kms. Dhargal Garden/paddy
3. AW1/D
and E
27-11-1986 1200 Rs.75/- ½ km. Poraskadem bharad
4. AW1/F
and I
7-9-1988 590 Rs.79.50 2 kms. Naibaga _
AW1/G 16-4-1985 5533 Rs.100/- 0.6 _ garden
5. AW1/H 22-6-1989 30300 Rs.123/- 2 kms. Pernem _
6. A28 10-11-1988 4200 Rs.120/- Pernem _
7. AW1/J 28-11-1985 160 Rs.300/- 0.5 Pernem garden
8. AW1/K 22-12-1987 178 Rs.100/- 0.7 Pernem garden
9. AW1/L 25-9-1989 100 Rs.200/- 1.3 Pernem Bharad/garden
10
.
AW1/M 1-1-1991 100 Rs.100/- 1.5 Virnoda _
11 AW1/N 19-8-1985 150 Rs.150/- 1.5 _ Garden
12 AW1/O 30-12-1991 100 Rs.600/- 0.5 _ Bharad
4. AW1/Dr. Rajendra, in his evidence stated that the acquired land was
similar to the land of some of the sale deeds/awards and superior, as against
others. For the view we are taking we do not propose to refer to the details of
evidence given by him. The Applicants examined AW2/Gadekar to prove the sale4
deed dated 25-9-1989/Exh.AW1/L and also examined Architect AW3/Shri Dessai,
and the latter after considering the said sale deed-Exh.AW1/L as the most
comparable instance valued the acquired land at Rs.170/- per sq. meter.
5. The learned reference Court ignored the sale deeds of Exhs.AW1/K,
AW1/L, AW1/M and AW1/N as they were of small plots of land, and
Exh.AW1/O though being of garden land, because it was a post notification sale
deed. The learned reference Court referred to the award-Exh.AW1/B in which
compensation awarded was Rs.60/- per sq. meter and observed that if an increase
of 10% was given for every subsequent year, the compensation payable would
work out to Rs.72/- per sq. meter, and since the acquired land was much better
located it would have fetched around Rs.80/- per sq. meter. The learned reference
Court also referred to the award-Exh.AW1/C in respect of 530 sq. meters of
garden land like the acquired land, and then to Exh.AW1/D for which
compensation was paid at the rate of Rs.75/- per sq. meter and observed that
Exh.AW1/C was of inferior land, being bharad, and if 25% increase was given it
would work out to Rs.100/- per sq. meter and in the year of acquisition it would
work out to Rs.140/- per sq. meter. Ultimately, the learned reference Court
referred to the sale deed-Exh.AW1/J by which land was sold at the rate of
Rs.300/- per sq. meter on or about 28-11-1985 and further observed that if the rate
was enhanced at the time of acquisition it would work out to Rs.420/- per
sq. meter and if proportionate deduction was given the rate would work out to5
Rs.250/- per sq. meter, but without assigning any further reason why the same rate
was not being given to the Applicants in respect of the acquired land, the learned
reference Court proceeded to fix arbitrarily the market value of the acquired land
to Rs.175/- per sq. meter. This market rate is higher than the one assessed by
Applicants' own witness Shri Dessai and is presumably based on the sale deed
-Exh.AW1/J and the self serving and uncorroborated testimony of AW1/Dr.
Vassudev. The approach of the learned reference Court can be said to be totally
erroneous in that the learned reference Court has not arrived at the market value
either on the basis of most comparable sale instance or award nor on the basis of
average of such instances, assuming such a method was otherwise permissible,
and on this count alone the impugned award deserves to be set aside. Exh.AW1/J
was not close either from point of time or distance and was of free hold land. The
learned reference Court also did not take care to ensure that only 50% of the
market value determined would be payable to the Applicants. Learned Counsel on
behalf of the Applicants submits that such a clarification could be done by this
Court. At the same time, it must be observed that the finding of the learned
reference Court that the provisions of the Goa Land Use(Regulation) Act, 1991
which came into force w.e.f. 2-11-1990 were inapplicable to the facts of the
present case cannot be faulted as the notification in this case under Section 4(1) of
the Act was gazetted on 1-2-1990.
6. The determination of market value of land with building
potentialities is an intricate exercise which calls for collection and collation6
of economic criteria and though at times some guess work is permissible,
in this what is impermissible are feats of imagination. The Apex Court in
Chimanlal Hargovinddas v. Special Land Acquisition Officer
(AIR 1988 SC 1862), inter alia, has stated that if sale instance method is to be
used then the Court has to correlate the market value reflected in the most
comparable instance and the most comparable instance, out of the genuine
instances, have to be identified on the consideration of proximity from time angle
and proximity from situation angle and after sale instance is identified to provide
the index of market value, the price reflected therein may be taken as the norm
and the market value of the land under acquisition and can be deducted by making
suitable adjustments for the plus and minus factors vis-a-vis the land under
acquisition by placing the two in juxtaposition. The Apex Court in Shaji
Kuriakose and another v. Indian Oil Corporation Limited and
others((2001) 7 SCC 650) has stated that Courts adopt sales method of
land because a method furnishes the evidence for determination of the market
value of the acquired land at which a willing purchaser would pay for the acquired
land if it is sold in the open market at the time of issue of notification
under Section 4 of the Act but before that is done certain factors are required
to be fulfilled, and only on fulfillment of those factors, the compensation can be
awarded, according to the value of the land reflected in the sales, and, the factors
laid down are:-7
1. The sale must be a genuine transaction,
2. The sale deed must have been executed at the time of
proximate to the date of issue of notification under Section 4
of the Act.
3. That the land covered by the sale must be in the vicinity of
the acquired land.
4. That the land covered by the sales must be similar to the
acquired land, and
5. The size of the plot of the land covered by the sale be
comparable to the land acquired,
and, if all these factors are satisfied then there is no reason why the sale value of
the land covered by the sales be not given to the acquired land and in case of
dissimilarity as regards the locality, shape, size or nature of the land between the
land covered by sales and the land acquired, it is open to the Court to
proportionately reduce the compensation for the acquired land than what is
reflected in the sales depending upon the disadvantages attached with the acquired
land.
7. If at all any sale or award instance was to be considered as a guide
for the purpose of fixing the market value of the acquired land, it ought to have
been Exh.28 which was proximate to the date of notification and was in the
vicinity of the acquired land but there is not even a whisper to the said award
Exh.28 in the impugned Judgment. The land of the said award of Exh.28 was
closest both in point of time and location.8
8. Be that as it may, Mr. Rivonkar, learned Government Advocate
submits, referring to the various provisions of the Tenancy Act(G.D.D.
Agricultural Tenancy Act, 1964) that the acquired land being tenanted land had
no building potential. Learned Government Advocate further submits that the
acquired land being agricultural land the valuation could have been done at the
most on the basis of the annual yield. Learned Counsel further submits that the
learned Reference Court also did not consider that there was an impediment,
namely, that the land could not have been used for building purposes.
Alternatively, Mr. Rivonkar has submitted that the acquired land being
agricultural land there were restrictions for its development and on account of the
said restrictions at least 50% deduction ought to have been made by the learned
reference Court in the price awarded and in this context Mr. Rivonkar has placed
reliance on the case of Comunidade of Candolim v. Deputy
Collector(North)(2005(1) Goa L.R. 25) and to the case of Comunidade of
Sancoale v. Government of Goa and another (unreported decision of this Court
dated 8-8-2008 in First Appeal No.158 of 2003), wherein learned Counsel
submits, that a deduction 50% was taken because the acquired land was
Comunidade land.
9. Indeed, in the case of Comunidade of Candolim v. Deputy
Collector(North)(supra) a Division Bench of this Court has stated that as the
subject land belonged to the Comunidade, therefore it was not free hold land;
Under Article 153 of the Code of Comunidades, the Governor had the powers to9
authorize the exchange of land of Communidades and determine its requests for
grant of leases. Under Articles 179 and 180, the lands belonging to the
Comunidades can be sold only when in liquidation proceedings the assets are
found to be inadequate. In short, the land belonging to the Comunidades could not
be utilized for a purpose which would enhance its market value and the
restrictions imposed on such land under the Code of Communidades clearly show
that its free use is not permissible and when the land under acquisition suffers
statutory restrictions, the obvious consequences that follow is on its market value,
and, therefore, such land cannot be compared with other sale instances in respect
of the free hold land. It may be noted here that, in the case of Comunidade of
Querim (unreported Judgment dated 21-12-2004 in First Appeal No.5 of 2004) a
Division Bench of this Court had approved a deduction of 25% in case of
comunidade land as compared to free hold land. In the said case of Comunidade
of Candolim v. Deputy Collector(North)(supra) the Division Bench had also
occasion to refer to a three Judge Bench decision of the Apex Court in the case of
Special Deputy Collector and another v. Kurra Sambasiva Rao and others
(AIR 1997 SC 2625) wherein the Apex Court had observed that the burden of
proof that the amount awarded by the L.A.O. is not adequate is always on the
claimant. The burden is to adduce relevant and material evidence to establish that
the acquired lands are capable of fetching higher market value than the amount
awarded by the L.A.O. or the L.A.O. proceeded on a wrong principle of law. The
object of the inquiry in a reference under Section 18 of the Act is to bring on
record the price which the land under acquisition was capable of fetching in the10
open market as on the date of the notification. What is fair, reasonable and
adequate market value is always a question of fact which depends on the evidence
adduced, circumstantial evidence and probabilities arising in each case.
10. On the other hand, Mr. M. S. Sonak, learned Counsel on behalf of
the Applicants has submitted that even in case the subject land was agricultural it
did not mean that it did not have building potential and in case there were tenants
it would only peg down the price and for that suitable deduction can be made.
Learned Counsel further submits that even under the Tenancy Act there was no
clog on conversion and in that regard Section 3(1-A) of the Tenancy Act has been
referred to. Learned Counsel further submits that there was no legal evidence
produced by the Respondents to show that there were tenants in the acquired
property and in any event it was not shown that the tenants were those who were
protected under the Tenancy Act. Learned Counsel further submits that the
Government in the case of tenants, generally contends that the tenants are unable
to put the land to any other use, other than agriculture, and deprives them from
paying fair market value and in case of owners contends that the owners cannot
put the land to any use as the land is tenanted and thus practically deprives both
the owners and the tenants from receiving adequate and fair market value.
Learned Counsel has placed reliance on two recent unreported decisions of this
Court, both dated 24-9-2008 in First Appeal No. 101/2003 and First Appeal
No.216/2003. The first decision was followed in the second, and, in fact both
pertain to cases where the applicability of Goa Land Use(Regulation) Act, 199111
was urged on behalf of the Government. Learned Counsel has also placed reliance
on the case of Suresh Kumar v. T. I. Trust, Bhopal (AIR 1989 SC 1222).
11. That the acquired land was garden land and was tenanted was not a
fact which was ever disputed on behalf of the Applicants. In fact, it was admitted
before the Land Acquisition Officer that Krishna A. Khautancar, Keshav and
Harichandra had tenancy rights and the L.A.O. had noted that this claim was
rightly supported by form Nos.I and XIV. The Applicants' witness had also
admitted that they had four tenants. Learned Counsel on behalf of the Applicants
submits that the nature of tenancy was not indicated by the Applicants witness
AW1/Dr. Deshprabhu. We are unable to accept such a submission. When the
Applicants accepted that there were four tenants in relation to the acquired
property the only inference to be drawn was that they were the tenants who were
protected under the Tenancy Act and in case it was otherwise it was for the said
AW1/Dr. Deshprabhu to have so indicated. Not only that, the Applicants raised no
objection in 50% of the compensation being paid to them. That is the practice
followed by L.A.Os. Admission is the best form of evidence of facts admitted and
requires no further proof.
12. The Apex Court in M. B. Gopala Krishna and others v. Special
Deputy Collector, Land Acquisition((1996) 3 SCC 594) has stated that a free
hold land and one burdened with encumbrances does make a big difference in
attracting willing buyers. A free hold land normally commands higher12
compensation while the land burdened with encumbrances secures lesser price.
The fact of a tenant in occupation would be an encumbrance and no willing
purchaser would willingly offer the same price as would be offered for a free hold
land.
13. In the case of Suresh Kumar v. T. I. Trust(supra) the Apex Court
has stated that market value should be correctly determined and there should be
neither unjust enrichment on the part of acquirer nor undue deprivation on the part
of owner. The market value must be determined by reference to the price which a
willing vendor might reasonably expect from willing purchaser. The land is not to
be valued merely by reference to the use to which it has been put on the date of
notification but also with reference to the use to which it is reasonably capable of
being put in the future.
14. The Fifth Amendment to the Tenancy Act came into force w.e.f.
8-10-1976. Section 2(1-A) defines the expression “agriculture” to include
horticulture and raising of food crops, grass or garden produce, but does not
include allied pursuits. Section 2(7-A) defines the expression “garden” to mean
land use primarily for growing coconut trees, arecanut trees, cashew trees or
mango trees. Section 18A of the Tenancy Act deals with purchase of land on
tillers' day by tenants and sub-section(1) provides that on the tillers' day, every
tenant shall, subject to other provisions of the Act, be deemed to have purchased
from his landlord the land held by him as a tenant and such land shall vest in him13
free from all encumbrances subsisting on the said day. Sub-Section(2) further
provides that where a tenant, on account of his eviction from the land by the
landlord before the tillers' day, is not in possession of the land on the said day, but
has made or makes an application for possession of the land under Section 18
within the period specified therein, then, if the application is allowed by the
Mamlatdar or, as the case may be, in appeal by the Collector or in revision by the
Administrative Tribunal, he shall be deemed to have purchased the land on the
day on which the final order allowing the application is passed. It is not necessary
to refer to the other sub-sections of Section 18A. Section 18D deals with the
purchase price payable to the landlords and sub-section(1) thereof provides that
the purchase price payable by a tenant to the landlord in relation to the land which
has been deemed to have been purchased by the tenant under Section 18A shall be
the amount indicated in column 2 of the Table shown therein in respect of the
categories of land specified in the corresponding entry in column 1. In other
words, the said Table fixes the purchase price for garden land, rice land, etc. as
indicated therein. Section 18E deals with the the mode of payment of purchase
price by a tenant and sub-section(1) thereof provides that on the determination of
the purchase price by the Mamlatdar under Section 18C, the tenant shall deposit
the purchase price with the Mamlatdar in the manner provided in this Section.
Sub-Section(2) thereof provides that the tenant shall have the option to deposit the
purchase price either in lumpsum or in ten equal annual instalments. The other
sub-section deals with the payment of the first, second or subsequent instalments,
and, sub-section(5) provides where a lumpsum payment or any instalment of the14
purchase price has not been deposited on the due date, the amount in default shall
carry interest at the rate of 6% per annum. Section 18G deals with recovery of
purchase price as arrears of land revenue by the landlord and Section 18H deals
with the issuance of certificate of purchase on deposit of the purchase price in
lumpsum or of the first instalment. Section 18K deals with restrictions on transfers
of land purchased under this Chapter and provides that no land purchased by a
tenant under this Chapter shall be transferred by sale, gift, exchange, mortgage,
lease or assignment without the previous sanction of the Mamlatdar; provided
that no such sanction shall be necessary where land is to be mortgaged in favour
of the Government or a co-operative society for the purpose of a loan for affecting
any improvement of such land.
15. A Division Bench of this Court in the case of State of Goa v. Pedro
Antonio((1996) 2 GLT 246) reiterated the principle that the responsibility of
establishing inadequacy of the offer and the market value of the land as on the
date of the notification under Section 4(1) of the Act lies on the claimants. The
learned Division Bench was considering cases, one of which was of a paddy field
situated in the proximity of the Railway Station at Vasco da Gama, where
electricity, water and other civic amenities were available at close distances, and it
was contended that the paddy field had immense potential for building
constructions. The learned Division Bench then referred to the case of P. Ram
Reddy and others v. L.A.O., Hyderabad((1995) 2 SCC 305) and after
considering the guidelines stated therein; held as follows: 15
“Coming to the land in question we have
another hurdle. As we pointed out
earlier, the lands are under the
possession of the tenants. Their tenure is
entirely controlled by the provisions of
the Agricultural Tenancy Act. The
landlord cannot evict the tenant. The
tenant cannot dispose of the land at his
own will, and at the same time the
landlord also cannot dispose of the land
as a willing seller. There are certain
restrictions and legal impediments in its
alienability. Therefore if a tenant wants
to sell his land he has to overcome
certain restrictions put on the
alienability of the land under the
provisions of the Goa, Daman and Diu
Agricultural Tenancy Act particularly
under Section 18K. Section 18K of the
said Act reads as follows:
“18K. Restrictions on transfers of
land purchased under this
Chapter. - No land purchased by
a tenant under this Chapter shall
be transferred by sale, gift,
exchange, mortgage, lease or
assignment without the grievous
sanction of the Mamlatdar:
Provided that no such sanction
shall be necessary where the land
is to be mortgaged in favour of
the Government or a co-operative
society for the purpose of a loan
for effecting any improvement of
such land.”
The restrictions imposed by the Act visa-vis
on the landlord is that he cannot
sell the property except to the tenant.
The restrictions put on the tenant is that
he shall not transfer or alienate or
mortgage the property except with the16
permission of the Mamlatdar. These
restrictions go a long way about the
alienability of the land. We cannot say
what price the land in question will
fetch in a transaction between a willing
seller and a willing purchaser. These
statutory restrictions naturally will have
to be borne by a bonafide purchaser”.
16. Consequently, enhancement granted by the reference Court was set
aside and the awards of the L.A.O. were confirmed.
17. The provisions of the Tenancy Act referred to herein above clearly
show that after the 5
th Amendment came into force from the said appointed date
the said Krishna A. Kauthancar and others, having been tenants, had become
deemed purchasers of the acquired land and the only interest which the Applicants
had in the acquired land was to receive from them the purchase price with interest
and they had no other interest or right in the acquired property. There cannot be
any dispute with the proposition that the acquired land is to be valued, not merely
by reference to the use to which it is being put at the time of notification under
Section 4(1) of the Act but also to the use to which it is reasonably capable of
being put in the near future. There also cannot be any dispute with the proposition
that market value is to be assessed from the point of view of a willing purchaser in
open market conditions at a price he would pay to a willing vendor. Nevertheless
the fact remains that the burden of proof that the amount awarded by the L.A.O.
is not adequate is always on the claimant by producing relevant and material17
evidence to establish that the acquired land was capable of fetching higher market
value then that amount awarded by the L.A.O. or that the L.A.O. had proceeded at
a wrong premise. This burden does not shift to the Government.(See AIR 1997 SC
1779). Applicants who fail to discharge such burden certainly cannot complain
that their rights either under Articles 14 or 300A of the Constitution have been
violated. That answers the submissions of learned Counsel Mr. Sonak. Since the
Applicants had a limited interest in the acquired land i.e. of receiving the purchase
price only of which the said tenants had now become deemed owners, the
acquired land in the hands of the Applicants, could not have been assessed as land
having building potential inasmuch as none of the sale/award instances relied
upon by the Applicants were of similar or comparable land. The said sale
instances appear to have been of land which was free hold and which could have
been used for construction purposes i.e. had building potential. The question of
deduction comes only when lands have potential value.
18. The Applicants, in our view, cannot derive any benefit from the
Judgment in First Appeal No.101/2003 in the case of Special Land Acquisition
Officer and another v. Ramchandra followed in First Appeal No.216/2003
since the said Judgment squarely dealt with the applicability of Goa Land
Use(Regulation) Act, 1991. In fact, the learned Division Bench declined to
entertain the applicability of a plea under the said Act, in the facts and
circumstances of that case, as such a plea was not taken before the reference18
Court and therefore held that it would not be fair, just and proper in the facts and
circumstances of the case, to allow the Government to raise the same in the
appeal. In fact the applicability of the Goa Land Use(Regulation) Act, 1991 was
left open to be decided in an appropriate case. In this case it was clearly stated by
the Respondents' witness that the acquired land was agricultural land, was not
plain, and had no building potential. A question of law can always be raised at any
stage, even in the first appeal, if facts to decide the same are available on record.
A Division Bench of this Court in Sayamma D. Narsingrao v. Punamchand
Raichand Marwadi (AIR 1933 Bom 413) has stated that a point of law can be
taken up for the first time in appeal.
19. In conclusion it may be stated that the Applicants acquired portion
was garden land but tenanted and the tenants had become deemed purchasers of
the same and the only interest which the Applicants had in the said land was to
receive the purchase price, and in such a case no willing purchaser would have
ventured to purchase such a land for building purposes or for that matter for any
other purpose from the Applicants. The said Krishna A Khauntancar and others
were in possession of the land and had become deemed owners of the same. the
learned reference Court was not right in assessing the value of the acquired land as
having building potential based on several awards/sale instances which were of
land dissimilar to the acquired land.19
20. The Appeal therefore deserves to succeed. The impugned
Judgment/Award dated 22-11-2002 is hereby set aside, and, considering the facts
with no order as to costs.
A. P. DESHPANDE, J.
N. A. BRITTO, J.
RD
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