(1)
FIRST APPEAL NO.334 OF 1994
Date of decision: 6TH MARCH, 2009
For approval and signature.
THE HONOURABLE SHRI JUSTICE K.K. TATED
1. Whether Reporters of Local Papers } Yes
may be allowed to see the Judgment? }
2. To be referred to the Reporter or not } Yes/No
3.
Whether Their Lordships wish to see
the fair copy of the Judgment?
}
}
No
4. Whether this case involves a substantial }
question of law as to the interpretation } No
of the Constitution of India, 1950 or }
any Order made thereunder? }
5. Whether it is to be circulated to the } No
Civil Judges? }
6. Whether the case involves an important }
question of law and whether a copy of } No
the Judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[A.S. Bhagwat)
Personal Assistant to
the Honourable Judge.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.334 OF 1994
IN
LAND ACQUISITION REFERENCE NO.60 OF 1992
Bilkis Bano w/o Abdul Razzak,
Afgan, Age-33 years,
Occu:Household,
Through her Power of Attorney
Mohd. Abdul Razzak,
Age-41 years, Occu:Business,
R/o-Nai Masjid Mohalla,
Nanded.
ig .... APPELLANT.
VERSUS
1) State of Maharashtra,
Through District Collector,
Nanded.
2) The Special Land Acquisition
Officer, B. & C. Nanded.
.... RESPONDENTS.
...
Mr.K.G. Khader Advocate for the Appellant.
Mr.S.P. Dound, A.G.P. for the Respondents.
...
CORAM: K.K. TATED, J.
DATE : 6TH MARCH, 2009.
ORAL JUDGMENT:
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1. Heard Mr. Khader, learned counsel
appearing on behalf of the Appellant and Mr.
Dound, learned A.G.P. appearing on behalf of the
Respondents.
2. Present Appeal has been preferred by the
Appellant/ original claimant against the Judgment
and award dated 19th October, 1993 passed by Civil
Judge, Senior Division, Nanded in L.A.R. No.60 of
1992.
3. Mr. Khader, learned counsel for Appellant
submitted the undisputed facts as under:
. The Special Land Acquisition Officer (for
short “S.L.A.O.”) issued Notification under
Section 4 of the Land Acquisition Act dated 20th
February, 1987 for acquiring Appellants/ original
claimants land from Survey No. 99/3 of village
Sonkhed, Tq-Kandhar, Dist-Nanded admeasuring 81 Rs
for construction of Vishnupuri Project at Kandhar,
Dist-Nanded. Thereafter the S.L.A.O. issued
Notification under Section 6 of the Land
Acquisition Act dated 15th March, 1990. After
following due process of law, the S.L.A.O.
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declared award dated 12th July, 1991 and awarded
compensation in respect of acquired land at the
rate of Rs.13,000/- per Acre. Learned counsel for
the Appellant submitted that the Respondents took
possession of the acquired land on 7th August,
1988. The notice under Section 12 (2) of the Land
Acquisition Act served on the Appellant on 15th
July, 1991 and thereafter the Appellant accepted
the payment under protest on 22nd July, 1991.
Being aggrieved by the said award passed by the
S.L.A.O., the
ig Appellant/ original claimant
preferred Reference under Section 18 of the Land
Acquisition Act dated 14th August, 1991. In the
said Reference the Appellant claimed compensation
in respect of acquired land at the rate of
Rs.50,000/- per Acre. The said Reference decided
by the Reference Court on 19th October, 1993 and
awarded compensation in respect of acquired land
at the rate of Rs.21,000/- per Acre.
4. Mr. Khader, learned counsel for the
Appellant submitted that the Reference Court erred
in coming to the conclusion that the Appellant is
not entitled to compensation in respect of the
acquired land at the rate of Rs.50,000/- per Acre.
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He further submitted that the Reference Court
failed to consider the fertility of the land at
the time of fixing market value in respect of
acquired land. Learned counsel for Appellant
submitted that the Reference Court failed to take
into consideration the valuation of the land of
the Appellant which was fixed by the Deputy
Collector, Degloor at Rs.4 Lakh at the time of
issuing solvency certificate. Learned counsel
submitted that the Reference Court ought to have
considered
the solvency certificate issued by the
Deputy Collector, Degloor showing the market value
of the acquired land at Rs.4 Lakh. In view of
these facts and on other grounds, learned counsel
for Appellant submitted that the Appeal preferred
by the Appellant to be allowed and the
compensation in respect of acquired land to be
determined at the rate of Rs.50,000/- per Acre.
5. On the other hand, Mr. Dound, learned
A.G.P. appearing on behalf of the Respondents
submitted that the Reference Court considered the
market value of the acquired land as per
prevailing rate and fixed it at the rate of
Rs.21,000/- per Acre. Learned A.G.P. submitted
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that the claimant produced only one sale deed at
Exhibit 14 dated 5th December, 1988 in respect of
Bagayat land of 20 Rs sold for Rs.17,000/-, the
rate of which comes to Rs.34,000/- per Acre.
Except this sale deed the Appellant has not
produced any other cogent evidence to show that
the Appellant is entitled to enhanced compensation
in respect of acquired land at the rate of
Rs.50,000/- per Acre. Learned A.G.P. further
submitted that the solvency certificate issued by
the
Deputy Collector showing the market value of
the acquired land at the rate of Rs.4 Lakh cannot
be considered for fixing market value of the
acquired land in the present case. Learned A.G.P.
submitted that the said document was not proved by
the Appellant and therefore the same was not
accepted by the Reference Court. The said
document was taken on record for identification
only. In this circumstances, learned A.G.P.
submitted that there is no merit in the present
Appeal and the same is liable to be dismissed with
costs.
6. Learned counsel Mr. Khader, appearing on
behalf of the Appellant pointed out that husband
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of the Appellant/ original claimant entered into
Witness Box at Exhibit 18 and stated that the
acquired land is situated on High Way. The land
under acquisition is surrounded by Gram Panchayat
Office, School, Junior College, Bank, society
office and Government Offices. Thus the land
under acquisition is surrounded by the developed
area. For fertilization facilities, there is Soil
Conservation Office. Village Loha is six k.m.
away from the acquired land. He further pointed
out that
Exhibit 14 sale deed produced by the
Appellant. The sale deed shows the market value
as on 5th December, 1988 at the rate of
Rs.34,000/- per Acre. Learned counsel further
pointed out the evidence of Vithal Ramrao at
Exhibit 35, who was S.L.A.O. at the time of
passing the award in the present case. The said
witness was examined by the State. In cross
examination this witness specifically stated that
Survey No. 28/2 has been sold for consideration
of Rs.1 Lakh per Hector. Similarly land from
Survey No. 230/C sold for consideration of
Rs.68,800/- per Hector by sale deed dated 22nd
September, 1988. On the basis of this admission
by S.L.A.O., learned counsel for Appellant
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submitted that Appellant is entitled to
compensation in respect of acquired land at least
at the rate of Rs.50,000/- per Acre. He further
submitted that the Reference Court considered
three sale instances i.e. dated 12th March, 1986,
5th May, 1987 and 3rd March, 1987. Those sale
instances were not produced either by the
Appellant and/or by the Respondent before the
Reference Court. Those sale instances were
referred by the S.L.A.O. in his award dated 12th
July, 1991.
Learned counsel for the Appellant
submitted that those sale instances can be
considered for fixing market value though the same
were not produced before the Court. He submitted
that the S.L.A.O. in his evidence admitted those
sale instances which were relied by him at the
time of passing the award dated 12th July, 1991.
In view of these facts, the learned counsel for
the Appellant submitted that the Appellant is
entitled to compensation in respect of acquired
land at the rate of Rs.40,000/- per Acre though
the Appellant claimed compensation at the rate of
Rs.50,000/- per Acre in the Reference under
Section 18 of the Land Acquisition Act.
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7. Mr. Dound, learned A.G.P. for the
Respondents submitted that sale deeds dated 12th
March, 1986, 5th May, 1987 and 3rd March, 1987
cannot be considered for fixing the market value
of the acquired land because same were not
produced before the Reference Court. He further
submitted that the contents of the award passed by
the S.L.A.O. cannot be considered for fixing the
market value of the acquired land unless and until
material relied by the S.L.A.O. for declaring the
award is
produced before the Court. He further
submitted that sale deed at Exhibit 14 dated 5th
December, 1988 is in respect of Bagayat land. The
land involved in Exhibit 14 is only 20 Rs of land,
therefore, the said sale deed cannot be considered
for fixing the market value of the acquired land.
On the basis of these submissions, learned A.G.P.
submits that there is no merit in the present
Appeal and the same to be dismissed with costs.
8. The first contention raised by learned
counsel for the Appellant that three sale deeds
dated 12th March, 1986, 5th May, 1987 and 3rd
March, 1987 can be considered for fixing the
market value of the acquired land, cannot be
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accepted because it is admitted position that
neither the purchaser nor the seller of those sale
deeds are examined as witnesses nor the certified
copies of those sale deeds are produced on record.
Those sale deeds are referred by the S.L.A.O. in
his award. The Apex Court in the matter of
Chimanlal Hargovinddas vs. Special Land
Acquisition Officer, Poona and another, reported
in AIR 1988 Supreme Court, 1652, held that the
material relied upon by the Land Acquisition
Officer
cannot be relied upon by the Court unless
the same is produced and proved before the Court.
In view of these facts, the contention raised by
the Appellant in that behalf, cannot be accepted.
9. The solvency certificate issued by the
Deputy Collector in respect of valuation of the
land produced by the Appellant also cannot be
considered for fixing the market value because the
said certificate is not proved and the same is not
accepted by the Reference Court. The Reference
Court has kept the said certificate on record and
market it for identification only.
10. For the purpose of considering the market
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value of the acquired land, Exhibit 14 i.e. sale
deed dated 5th December, 1988 can be considered.
In the said sale deed the land of 20 Rs was sold
for Rs.17,000/- from the village Sonkhed itself.
The acquired land also situated at village
Sonkhed. The Appellant’s witness Abdul Afgan at
Exhibit 18 specifically stated in his evidence
that the land involved in Exhibit 14 sale deed was
adjacent to the land of the Appellant which was
sold for consideration of Rs.34,000/- per Acre.
If
the sale deed of adjacent land is available on
record, the same can be considered for fixing the
market value of the acquired land. A
determination of the market value of the land
acquired in terms of provisions of the Land
Acquisition Act depends upon large number of
factors, the first being the nature and quality of
the land i.e. whether agricultural land or
industrial land. Apart from nature and quality of
land, in the event the agricultural lands are
acquired, the other factors relevant therefore are
also required to be considered namely, as to
whether they are irrigated or non irrigated,
extent of facilities available for irrigation,
location of land, closeness thereof from any road
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or high way. In the present case, the witness for
the Appellant specifically stated in his evidence
that acquired land is situated on high way and
surrounding to the lands under acquisition there
is Gram Panchayat Office, school, junior college,
hospital, banks etc. The said evidence is not
seriously challenged in the cross examination by
the Respondents. Therefore, considering the sale
deed at Exhibit 14, I am holding that the
Appellant/ original claimant is entitled to
compensation in
ig respect of acquired land at the
rate of Rs.34,000/- per Acre. Needless to say
that Appellant is entitled to additional benefits
as per the amended provisions of the Land
Acquisition Act on enhanced compensation.
Therefore, First Appeal is required to be partly
allowed. Hence the Order:
O R D E R
(i) First Appeal No. 334 of 1994 is partly
allowed.
(ii) The Judgment and award passed by Civil
Judge, Senior Division, Nanded dated 19th October,
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2003 in L.A.R. No.60 of 1992 is modified to the
extent that Appellant is entitled to compensation
in respect of acquired land at the rate of
Rs.34,000/- per Acre.
(iii) The Appellant is entitled to additional
benefits as per the amended provisions of the Land
Acquisition Act on the enhanced compensation.
(iv) Reference Court is directed to calculate
the
amount due and payable to the Appellant after
giving notice to both the sides, within four
months from the date of receipt of Writ and
certified copy of the Judgment.
(v) Appellant is entitled to proportionate cost
in the present Appeal.
[K.K. TATED]
JUDGE.
asb/u/fa334.94
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