(1)
FIRST APPEAL NO.111 OF 1994
Date of decision: 12TH 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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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.111 OF 1994
IN
LAND ACQUISITION REFERENCE NO.49 OF 1991
Hanmabai w/o Iranna Patil,
(Deceased- Through her LR's)
Dattatraya s/o Iranna Patil,
Age-47 years, Occu:Agri.,
R/o-Yesgi, Tq-Biloli,
Dist-Nanded.
.... APPELLANT.
VERSUS
1) The State of Maharashtra,
Through District Collector,
Nanded.
2) The Special Land Acquisition
Officer, M.I.W. Nanded.
.... RESPONDENTS.
...
Mr.Sandeep Gorde Patil Advocate for Appellant.
Mr.S.P. Dound, A.G.P. for Respondents.
...
CORAM: K.K. TATED, J.
RESERVED ON : 27TH FEBRUARY, 2009.
PRONOUNCED ON: 12TH MARCH, 2009.
JUDGMENT:
1. Heard Mr. Gorde Patil, learned counsel for
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2
the Appellant and Mr. S.P. Dound, learned A.G.P.
for the Respondents.
2. The present First Appeals preferred by the
Appellants/ original claimants against the
Judgment and award dated 14th December, 1992
passed by Civil Judge, (Senior Division), Biloli
in Land Acquisition Reference No.49 of 1991. In
order to appreciate the challenge in this Appeal,
it will be necessary to advert to few relevant
facts in the matter.
3. The Special Land Acquisition Officer (for
short “S.L.A.O.”) issued notification under
Section 4 of the Land Acquisition Act dated 22th
June, 1983 for acquiring land of the Appellants
for approach road to Yesgi Bridge. The Respondent
acquired land admeasuring 28 Rs from Gut No.6, 1
Hector 25 Rs from Gut No.78, 34 Rs from Gut No.134
and 54 Rs from Gut No.138. Thereafter S.L.A.O.
issued Notification under Section 6 of the Land
Acquisition Act dated 30th January, 1986. After
following due process of law, S.L.A.O. declared
award dated 25th August, 1988 and awarded
compensation in respect of acquired land as
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follows:
(a) For Group No.III @ Rs.20,000/- per Hector,
(b) For Group No.IV @ Rs.21,000/- per Hector,
(c) For Group No.V @ Rs.22,000/- per Hector.
4. Before passing the award the S.L.A.O. took
possession
of the acquired land on 9th December,
1985. Being aggrieved by the award passed by the
S.L.A.O. on 25th August, 1988, the Appellant/
original claimant preferred Reference under
Section 18 of the Land Acquisition Act and claimed
compensation in respect of acquired land @
Rs.30,000/- per acre. The Appellant also claimed
a sum of Rs.50,000/- towards Mango and Guava trees
and a sum of Rs.1,75,500/- towards well, bore well
and pump house. The Reference Court by Judgment
and award dated 14th December, 1992 held that the
claimants are entitled compensation in respect of
acquired land @ Rs.25,000/- per Hector from Gut
No.134 & 138 and Rs.18,750/- per Hector for a land
from Gut No.78 & Gut No.6. The Reference Court
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also awarded a sum of Rs.75,000/- towards Mango
trees. Being aggrieved by the said Judgment and
award passed by the Reference Court dated 14th
December, 1992, the Appellant/ original claimant
preferred present First Appeal for enhancement of
compensation in respect of acquired land as well
as fruit bearing trees.
5. Mr.Gorde Patil, learned counsel appearing
on behalf of the Appellant submitted that the
Reference
Court erred in coming to the conclusion
that the claimants are entitled compensation in
respect of acquired land at the rate of
Rs.25,000/- and Rs.18,750/- per Hector only.
Learned counsel for Appellant further submitted
that the Reference Court ought to have held that
claimants are entitled to compensation in respect
of acquired land at the rate of Rs.30,000/- per
acre i.e. Rs.75,000/- per Hector. Learned
counsel for the Appellant further submitted that
the Reference Court should have awarded additional
compensation in respect of fruit bearing trees as
claimed by the claimants in their Reference
Application under Section 18 of the Land
Acquisition Act. Learned counsel for Appellant
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further submitted that the Reference Court did not
take cognizance of the fact that the acquired
portion of all four Gut Nos. 6, 78, 134 and 138
was having all time working water well facilities
with bore but due to acquisition remaining portion
of land became dry land. On the basis of these
submissions, learned counsel for the Appellant
submitted that the Reference Court ought to have
held that the claimants are entitled to enhanced
compensation as claimed by them in their Reference
Application under
ig Section 18 of the Land
Acquisition Act. Mr.Gorde Patil, learned counsel
for the Appellant pointed out that for the same
project Respondents acquired another lands from
same village by same Notification under Section 4
of the Land Acquisition Act. He further pointed
out that in respect of those lands the S.L.A.O.
passed common award dated 30th November, 1981 in
respect of present claimants as well as lands
involved in those acquisition. He pointed out
that being aggrieved by the award passed by the
S.L.A.O., those claimants preferred Reference
under Section 18 of the Land Acquisition Act and
same came to be registered as Land Acquisition
Reference Nos. 39 of 1990, 40 of 1990 and 41 of
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1990. Those L.A.R. came to be decided by Civil
Judge, Senior Division, Biloli by Judgment and
award dated 28th June, 1991 and awarded
compensation in respect of acquired land at the
rate of Rs.25,000/- and Rs.18,750/- per acre. The
certified copy of the said Judgment and award
dated 28th June, 1991 passed by Civil Judge,
Senior Division, Biloli in L.A.R. Nos. 39, 40
and 41 of 1990 was produced before the Reference
Court and marked as Exhibit 54. On going through
the said Judgment,
ig it is amply clear that the
Reference Court erred in observing at the time of
considering the certified copy of the Judgment at
Exhibit 54 that what is stated therein is with
reference to Hector and not Acre. Hence the
submission of the learned counsel for the
Appellant needs to be accepted and given effect
to.
6. Mr. Gorde Patil, learned counsel for the
Appellant further submitted that the Reference
Court erred in coming to the conclusion that
claimants failed to produce cogent evidence for
claiming enhanced compensation in respect of lands
and bore wells in the suit land.
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7. Mr. Dound, learned A.G.P. appearing on
behalf of the Respondents submitted that the
claimants are not entitled to any enhancement in
respect of the acquired land. Learned A.G.P.
submitted that the Reference Court has considered
the sale deed at Exhibits 52 and 53 as well as
Judgment and award passed in L.A.R. Nos. 39, 40
and 41 of 1990 for coming to the conclusion that
the claimants are entitled to compensation in
respect of
acquired land at the rate of
Rs.25,000/- and Rs.18,750/- per Hector. He
further pointed out that Reference Court
considered the facts that claimants have failed to
produce cogent evidence to show that they are
entitled to enhanced compensation in respect of
fruit bearing trees, wells and tube wells. On the
basis of these submissions, learned A.G.P. Mr.
Dound appearing for Respondents submitted that the
present Appeal to be dismissed with costs.
8. Before considering the evidence on record
and sale deeds produced by Appellant/ original
claimant, we have to keep in mind that at the time
of fixing market value of the acquired land, we
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have to take into account the Apex Court Judgment
in the matter of Chimanlal Hargovinddas vs.
Special Land Acquisition Officer, AIR 1988,
Supreme Court, 1652.
1652 The Apex Court in this
matter held that the market value for compensation
in respect of acquired land is to be determined as
on crucial date of publication of Notification
under Section 4 of the Land Acquisition Act and
also to consider the relevant facts prevailing on
the date of issuing Notification under Section 4
of
the Land Acquisition Act. Para 3 and 4 of the
said Judgment read as under:-
“3 Before tackling the problem of
valuation of the land under acquisition it
is necessary to make some generalobservations. The compulsion to do so has
arisen as the trial Court has virtually
treated the award rendered by the Land
Acquisition Officer as a Judgment under
Appeal and has evinced unawareness of themethodology for valuation to some extent.
The true position therefore requires to be
capsulized.“4 The following factors must be
etched on the mental screen:(1) A reference under Section 18 of
the Land Acquisition Act is not an
appeal against the Award and the
Court cannot take into account the
material relied upon by the Land
Acquisition Officer in his Award::: Downloaded on – 09/06/2013 14:24:25 :::
9unless the same material is
produced and proved before the
Court.
(2) So also the award of the Land
Acquisition Officer is not to betreated as a Judgment of the trial
court open or exposed to challenge
before the Court hearing the
Reference. It is merely an offer
made by the Land AcquisitionOfficer and the material utilized
by him for making his valuation
cannot be utilized by the Court
unless produced and proved before
it. It is not the function of the
court to sit in appeal against theaward, approve or disapprove its
reasoning, or correct its errors oraffirm, modify or reverse
conclusions reached by the Land
theAcquisition Officer, as if it were
an appellate Court.
(3) The court has to be treat the
Reference as an original proceeding
before it and determine the market
value afresh on the basis of the
material produced before it.
(4) The claimant is in the position
of a plaintiff who has to show that
the price offered for his land in
the award is inadequate on the
basis of the materials produced in
the Court. Of course the materials
placed and proved by the other side
can also be taken into account for
this purpose.
(5) The market value of the land
under acquisition has to be
determined as on the crucial date
of publication of the notification
under Section 4 of the Land
Acquisition Act (date of
notifications under Ss. 6 and 9
are irrelevant).
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(6) The determination has to be
made standing on the date line of
valuation (date of publication of
notification under S.4) as if the
valuer is a hypothetical purchaser
willing to purchase land from the
open market and is prepared to pay
a reasonable price as on that day.
It has also to be assumed that the
vendor is willing to sale the land
at a reasonable price.
(7) In doing so by the instances
method, the Court has to correlate
the market value reflected in the
most comparable instances which
provides the index of the market
value.
(8) Only genuine instances have to
be taken into account (some times
instances are rigged in
anticipation of acquisition of
land).
(9) Even post notification
instances can be taken into account
(1) if they are very proximate, (2)
genuine and (3) the acquisition
itself has not motivated the
purchaser to pay higher price on
account of the resultant
improvement in development
prospects.
(10) The most comparable instances
out of genuine instances have to be
identified on the following
considerations:
(i) Proximity from time
angle
(ii) proximity from
situation angle
(11) Having identified the
instances which provides the index
of market value the price reflected
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therein may be taken as the norm
and the market value of the land
under acquisition may be deduced by
making suitable adjustments for the
plus and minus factors vis-a-vis
land under acquisition by placing
the two in juxtaposition.
(12) A balance sheet of plus and
minus factors may be drawn for this
purpose and the relevant factor may
be evaluated in terms of price
variation as a prudent purchaser
would do.
(13) The market value of the land
under acquisition has thereafter to
be deduced by loading the price
reflected in the instance taken as
norm for plus factors and unloading
it for minus factors.
(14) The exercise indicated in
clause (11) to (13) has to be
undertaken in a common sense manner
as a prudent man of the world of
business would do. We may
illustrate some such illustrative
(not exhaustive) factors:-
Plus Factors.
1. Smallness of size
2. Proximity to a road
3. Frontage on a road
4. Nearness to developed area
5. Regular shape
6. Level vis-a-vis land under
acquisition
7. Special value for an owner of
an adjoining property to whom it
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may have some very special
advantage.
Minus factors.
1. Largeness of area
2. situation in the interior at a
distance from the road.
3. Narrow strip of land with very
small frontage compared to depth
4. Lower level requiring the
depressed portion to be filled up
5. Remoteness from developed
locality
6. Some special disadvantageous
factor
purchaser
which would deter a
(15) The evaluation of these
factors of course depends on the
facts of each case. There cannot
be any hard and fast or rigid rule.
Common sense is the best and most
reliable guide. For instance, take
the factor regarding the size. A
building plot of land say 500 to
1000 sq. yds. cannot be compared
with a large tract or block of land
say 10000 eq. yds. or more.
Firstly while a smaller plot is
within the reach of many, a large
block of land will have to be
developed by preparing a lay out,
carving out roads, leaving open
space, plotting out smaller plots,
waiting for purchasers (meanwhile
the invested money will be blocked
up) and the hazards of
enterpreneur. The factor can be
discounted by making a deduction by
way of an allowance at an
appropriate rate ranging approx.
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between 20% to 50% to account for
land required to be set apart for
carving lands and plotting out
small plots. The discounting will
to some extent will also depend on
whether it is a rural area or urban
area, whether building activities
is picking up, and whether waiting
period during which the capital of
the enterpreneur would be locked
up, will be longer or shorter and
the attendant hazards.
(16) Every case must be dealt with
on its own fact pattern bearing in
mind as these factors as a prudent
purchaser of land in which position
the Judge must place himself.
(17) These are general guide-lines
to be applied with understanding
informed with common sense.”
9. In the above mentioned matter the claimants
produced two sale deeds at Exhibit 52 and 53.
Exhibit 52 is a sale deed dated 1st April, 1981 in
which the land admeasuring 79 Rs from Survey
No.68/3 at Yesgi, Taluka-Biloli, District-Nanded
was sold for Rs.14,000/-. The rate comes to
Rs.17,721/- per Hector. At Exhibit 53 sale deed
dated 2nd May, 1981 produced by the claimants. In
this sale deed the land admeasuring 43 Rs from
Survey No.27 Hissa No.4 situated at village Yesgi
was sold for Rs.10,000/-. The rate comes to
Rs.23,255/- per Hector. When these sale deeds are
considered for fixing market value of acquired
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land, we have to consider 10% increase per year in
the market value. For this I can rely on the
Judgment of Division Bench of this Court in the
matter of Goa Housing Board and another vs.
Attorney of Communidade of Mapusa, reported in
2008 (1) Bom. C.R. Page 356.
10. But in the peculiar facts and circumstances
of the present case, instead of considering the
sale deeds and other evidence produced by the
claimants, it
igis better to rely on the Judgment
and award dated 28th June, 1991 passed by Civil
Judge, Senior Division, Biloli in L.A.R. Nos. 39
of 1990, 40 of 1990 and 41 of 1990. In the said
proceeding, the S.L.A.O. issued Notification
under Section 4 of Land Acquisition Act dated 12th
February, 1981 and passed award on 30th November,
1981. Lands were acquired for the same project as
involved in present case. The common Notification
under Section 4 of the Land Acquisition Act was
issued by the S.L.A.O. and also passed common
award for fixing market value in respect of the
acquired lands. Considering these facts, this is
a best piece of evidence to rely in the present
matter for fixing the market value of the acquired
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land. The Apex Court in the matter of Mahadev vs.
Asstt. Commissioner /Land Acquisition Officer,
2002 (9) Supreme Court Cases Page 487. held that
if the Government has accepted the award in regard
to the similar lands all of which were sought to
be acquired under the same notification, in that
case Acquiring Body should accept the same
position in other matters. For this purpose Paras
9 and 10 of the Judgment are relevant, which read
as under:
“9. Having heard the counsel for the
parties and perused the records, we do not
think the High Court was justified in
interfering with the award of the Reference
Court. The High Court ought to have seen
that the acquiring authority viz. theGovernment has accepted the award in regard
to similar lands, all of which were soughtto be acquired under the same notification.
The High court has not come to the
conclusion that the lands of the appellant
are in any way inferior to the lands of
those owners in whose favour the ReferenceCourt award has become final. In such a
situation, we find it difficult to agree
with the view taken by the High Court
mainly because of the fact that the
acquiring authority itself has accepted the
award of the Reference Court. The appeal
before the High Court was not based on anyquestion of law applicable to the peculiar
facts of the appeal before it. It was also
an appeal on facts on the basis of which
the learned District Judge confirmed the
award. If the very same evidence was
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16regard to six other owners, we fail to
understand why it should not be acceptable
to the acquiring authority in regard to theappeal before us. At the cost of
repetition, it may be stated that it is not
the case of the acquiring authority thatthe land of the appellant, is in any way,
inferior to the other lands acquired under
the same notification.
11. In similar way our High Court in the matter
of Bayaji Tatya Kaluge vs. State of Maharashtra,
reported in 2007 (2) All M.R. Page 316 has taken
a view that if the lands situated in same village,
acquired for same purpose under same Notification,
in that case claimants are entitled to
compensation at the same rate on ground of parity.
Head Note of the said Authority reads as under:
Land Acquisition Act (1894), Ss.4(1), 18-
Acquisition of land- Claim of compensation
– Parity – Lands situated in same village,
acquired for same purpose under same
notification – Claimants are entitled tocompensation at the same rate on ground of
parity. 2003 AIR SCW 5188 – Ref. to.”
12. It is pertinent to note that I made query
with the Mr. Dound, learned A.G.P. appearing on
behalf of the Respondent State to find out whether
the State has preferred any Appeal against the
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17
Judgment and award dated 28th June, 1991 in L.A.R.
Nos. 39 of 1990, 40 of 1990 and 41 of 1990.
After taking instructions from Government
Pleader’s Office, the learned A.G.P. made a
statement that neither the claimants nor the State
has challenged the said Judgment dated 28th June,
1991 either before this Court or any other Court
and the said Judgment has become final. Therefore
it was incumbent on the part of the Reference
Court to rely on the Judgment and award dated 28th
June,
1991 passed in L.A.R. Nos. 39, 40 and 41
of 1990. Considering these facts I hold that the
claimants are entitled to compensation in respect
of acquired land at the rate of Rs.25,000/- and
Rs.18,750/- per acre.
13. Learned counsel for the Appellant submitted
that claimants are entitled enhanced compensation
in respect of Mango trees, Guava trees, well and
bore well. In respect of Mango trees whatever
amount claimed by the claimants in their Reference
Application under Section 18 of the Land
Acquisition Act i.e. a sum of Rs.75,000/-, the
same awarded by the Reference Court. Therefore,
there is no question of enhancement in respect of
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Mango trees. So far Guava trees are concerned, at
the time of joint verification it is specifically
noted in the report that those trees were not
found on the field. Not only that, the Appellant
failed to make any claim to that effect before the
S.L.A.O. Considering these facts the Reference
Court rightly rejected Appellant’s claim holding
that the claimants were not entitled any
compensation in respect of Guava trees. Regarding
well and bore wells, the Reference Court after
considering
the material on record, rightly held
that the claimants failed to produce any cogent
evidence for additional compensation. After going
through the evidence of PW1 at Exhibit 84, I hold
that the claimants are not entitled to any
additional compensation in respect of the well and
the bore well.
14. The learned counsel for the Appellant/
original claimant submitted that the Reference
Court erred in coming to the conclusion that the
Appellants’ land admeasuring 28 Rs from Gut No.6
and land admeasuring 1 Hector 25 Rs from Gut No.78
are seasonally irrigated land though the same were
perennially irrigated lands. To that effect I
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have gone through the documents produced by
Appellant at Exhibit 89, 90, 91 and 92 which are
7/12 extracts in respect of lands Gut Nos. 6,
138, 78 and 134. These 7/12 extracts show that
the lands were Jirayat lands. But considering the
evidence on record, the Reference Court held that
lands involved in Gut Nos. 134 and 138 were
perennially irrigated land and lands involved in
Gut Nos. 6 and 78 were seasonally irrigated
lands. Therefore, the contention raised by Mr.
Sandeep Gorde
Patil, learned counsel for the
Appellant/ original claimant in respect of
classification of the land is rejected.
15. In view of the above mentioned facts and
circumstances, the present Appeal preferred by the
Appellant/ original claimant is partly allowed to
the extent that Appellant is entitled compensation
in respect of land admeasuring 28 Rs from Gut No.6
and land admeasuring 1 Hector 25 Rs from Gut No.78
at the rate of Rs.18,750/- per acre being
seasonally irrigated land; and at the rate of
Rs.25,000/- per acre for land from Gut No.134
admeasuring 34 Rs and Gut No.138 admeasuring 54 Rs
being perennial irrigated land. Hence the Order:
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O R D E R
(i) The Judgment and award dated 14th
December, 1992 passed by Civil Judge,
Senior Division, Biloli in L.A.R. No.49 of
1991 is modified to the extent that the
Appellant is entitled compensation in
respect of land admeasuring 28 Rs from Gut
No.6 and
igland admeasuring 1 Hector 25 Rs
from Gut No.78 at the rate of Rs.18,750/-
per acre being seasonally irrigated land;
and at the rate of Rs.25,000/- per acre for
land from Gut No.134 admeasuring 34 Rs and
Gut No.138 admeasuring 54 Rs being
perennial irrigated land.
(ii) The Reference Court is directed to
calculate the enhanced compensation payable
to the Appellant/ original claimant after
giving notice to both the sides within four
months from receipt of the Writ and
certified copy of this Judgment from this
Court.
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21
(iii) No order as to the costs.
[K.K. TATED]
JUDGE.
asb/u/fa111.94
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