(1)
FIRST APPEAL NO.188 OF 2000 WITH
FIRST APPEAL NO.219 OF 1999 AND
FIRST APPEAL NO.213 OF 1999 WITH
FIRST APPEAL NO.218 OF 1999 AND
FIRST APPEAL NO.245 OF 1999
Date of decision: 24TH FEBRUARY, 2009
For approval and signature.
THE HONOURABLE SHRI JUSTICE P.V. HARDAS
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 } No
the fair copy of the Judgment? }
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.188 OF 2000
IN
LAND ACQUISITION REFERENCE NO.358 OF 1995
1) Jafarali Mithabhai Hirani,
Age-87 years, Occu:Agriculture,
R/o-Kinwat, Tq-Kinwat,
Dist-Nanded
(Died through L.Rs)
1/1) Shanubani w/o Sadroddin Hirani,
Age-62 years, Occu:Household &
Agriculture.
1/2) Madat Ali s/o Jafar Ali Hirani,
Age-59 years, Occu:Agriculture
& Business,
1/3) Amirali s/o Jafar Ali Hirani,
Age-49 years, Occu:Agriculture
& Business,
1/4) Sultanali s/o Jafar Ali Hirani,
Age-44 years, Occu:Agriculture
& Business,
1/5) Shirinkhanu w/o Sadroddin Lalani,
Age-59 years, Occu:Household,
1/6) Malekbai w/o Shamshuddin Pirani,
Age-56 years, Occu:Household,
All R/o-Kinwat, Tq-Kinwat, Dist-Nanded.
2) Shahabanu w/o Sadroddin Hirani,
Age-61 years, Occu:Household &
Agriculture.
3) Madatali s/o Jafar Ali Hirani,
Age-56 years, Occu:Agriculture
& Business,
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4) Amirali s/o Jafar Ali Hirani,
Age-45 years, Occu:Agriculture
and Business, for himself and
power of attorney holder of
claimant Nos. 2, 3 & 5.
5) Sultanali s/o Jafar Ali Hirani,
Age-42 years, Occu:Agriculture
and Business,
All R/o-Kinwat, Tq-Kinwat, Dist-Nanded.
.... APPELLANTS.
VERSUS
1) The State of Maharashtra,
Through District Collector,
Nanded,
2) The Spl. Land Acquisition Officer,
Minor Irrigation Works, Nanded.
3) The Municipal Council, Kinwat,
Through its Chief Officer,
Kinwat Municipal Council, Kinwat,
Dist-Nanded.
.... RESPONDENTS.
WITH
FIRST APPEAL NO.219 OF 1999
IN
LAND ACQUISITION REFERENCE NO.358 OF 1995
The Municipal Council,
Kinwat, Dist-Nanded,
Through its
Chief Officer,
Municipal Council,
Kinwat, Dist-Nanded.
...APPELLANT
VERSUS
1) Jafarali s/o Mithabhai Hirani,
Since Deceased Through his LRs:
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3
1/1) Shanubani w/o Sadroddin Hirani,
Age-59 years, Occu:Household &
Agriculture.
1/2) Madat Ali s/o Jafar Ali Hirani,
Age-57 years, Occu:Agriculture
& Business,
1/3) Amirali s/o Jafar Ali Hirani,
Age-47 years, Occu:Agriculture
& Business,
1/4) Sultanali s/o Jafar Ali Hirani,
Age-42 years, Occu:Agriculture
& Business,
1/5) Shirinkhanu w/o Sadroddin Lalani,
Age-59 years, Occu:Household,
1/6) Malekbai w/o Shamshuddin Pirani,
Age-54 years, Occu:Household,
All R/o-Kinwat, Tq-Kinwat, Dist-Nanded.
2) Shahabanu w/o Sadroddin Hirani,
Age-59 years, Occu:Household &
Agriculture.
3) Madat Ali s/o Jafar Ali Hirani,
Age-54 years, Occu:Agriculture
& Business,
4) Amirali s/o Jafar Ali Hirani,
Age-45 years, Occu:Agriculture
and Business,
5) Sultanali s/o Jafar Ali Hirani,
Age-40 years, Occu:Agriculture
and Business,
All R/o-Kinwat, Tq-Kinwat, Dist-Nanded.
(Respondent No.4 Amir Ali is GPA Holder
of Respondent Nos. 2, 3 and 5)
.... RESPONDENTS.
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AND
FIRST APPEAL NO.213 OF 1999
IN
LAND ACQUISITION REFERENCE NO.360 OF 1995
Jivanbhai s/o Mandanbhai Dobani,
Age-54 years, Occu:Agriculture,
R/o-Kinwat, Tq-Kinwat, Dist-Nanded,
Through Power of Attorney Holder
Amin s/o Jivanbhai Dobani,
Age-32 years, Occu:Agriculture,
R/o-Kinwat, Tq-Kinwat, Dist-Nanded.
(died through L.Rs.)
1) Fatambai w/o Jivanbhai Dobani,
Age-59 years, Occu:Household
2) Amin s/o Jivanbhai Dobani,
Age-36 years, Occu:Agriculture
3) Din Mohammed s/o Jivanbhai Dobani,
Age-33 years, Occu:Agriculture
4) Sultan s/o Jivanbhai Dobani,
Age-28 years, Occu:Agriculture
All R/o-Kinwat, Tq-Kinwat, Dist-Nanded.
.... APPELLANTS.
VERSUS
1) The State of Maharashtra,
Through District Collector,
Nanded,
2) The Special Land Acquisition Officer,
Minor Irrigation Works, Nanded.
3) The Municipal Council, Kinwat,
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5
Through its Chief Officer,
Kinwat Municipal Council, Kinwat,
Dist-Nanded.
.... RESPONDENTS.
WITH
FIRST APPEAL NO.218 OF 1999
IN
LAND ACQUISITION REFERENCE NO.360 OF 1995
The Municipal Council,
Kinwat, Dist-Nanded,
Through its
Chief Officer,
Municipal Council,
Kinwat, Dist-Nanded.
...APPELLANT.
VERSUS
1) Fatambai w/o Jivanbhai Dobani,
Age-57 years, Occu:Household
2) Amin s/o Jivanbhai Dobani,
Age-35 years, Occu:Agriculture
3) Din Mohammed s/o Jivanbhai Dobani,
Age-31 years, Occu:Agriculture
4) Sultan s/o Jivanbhai Dobani,
Age-27 years, Occu:Agriculture
All R/o-Kinwat, Tq-Kinwat, Dist-Nanded.
5) The State of Maharashtra,
Through the District Collector,
Collectorate, Nanded.
6) The Spl. Land Acquisition Officer,
Minor Irrigation Works,
Nanded, Dist-Nanded.
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.... RESPONDENTS.
AND
FIRST APPEAL NO.245 OF 1999
IN
LAND ACQUISITION REFERENCE NO.359 OF 1995
1) Smt. Gopikabai w/o Ramloo Nemaniwar,
Age-69 years, Occu:Agriculture
and Household, R/o-Kinwat,
Tq-Kinwat, Dist-Nanded.
2) Ramesh s/o Ramloo Nemaniwar,
Age-44 years, Occu:Agriculture
and Business, R/o-Kinwat,
Tq-Kinwat, Dist-Nanded.
For himself and Power of
Attorney Holder of No.1 and 3.
3) Ashok s/o Ramloo Nemaniwar,
Age-39 years, Occu:Agriculture
and Business, R/o-Kinwat,
Tq-Kinwat, Dist-Nanded.
.... APPELLANTS.
VERSUS
1) The State of Maharashtra,
Through District Collector,
Nanded,
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2) The Special Land Acquisition Officer,
Minor Irrigation Works, Nanded.
3) The Municipal Council, Kinwat,
Through its Chief Officer,
Kinwat Municipal Council, Kinwat,
Dist-Nanded.
.... RESPONDENTS.
...
Mr.M.V. Deshpande Advocate for Appellants/
Claimants in First Appeal Nos. 188 of 2000, 213
of 1999 and 245 of 1999; and for Respondent Nos.
1 to 4 in First Appeal No.218 of 1999 and for the
Respondent Nos. 1/1 to 1/4 and 2 to 5 in in First
Appeal No.219 of 1999.
Mr.V.B. Ghadge, A.G.P. for Respondent State and
Respondent Special Land Acquisition Officer in all
Appeals.
Mr.P.V. Mandlik, Senior Counsel for Respondent
No.3 in First Appeal No.188 of 2000.
Mr.B.A. Darak Advocate for Appellant in First
Appeal No.218 and 219 of 1999; and for the
Respondent No.3 in First Appeal No.213 and 245 of
1999.
...
CORAM: P.V. HARDAS
AND
K.K. TATED, JJ.
RESERVED ON : 11TH FEBRUARY, 2009.
PRONOUNCED ON: 24TH FEBRUARY, 2009.
COMMON JUDGMENT: (PER K.K. TATED, J.)
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8
1. All these First Appeals can be disposed of
by Common Judgment as identical question of fact
and law arise in these Appeals. Lands acquired in
these Appeals for Integrated Development Scheme,
Extension of Gavthan at Kinwat, Tq-Kinwat,
Dist-Nanded, for Kinwat Municipal Council, Kinwat
i.e. Acquiring Body. Learned counsel appearing
on behalf of the parties pointed out that the
First Appeals,
evidence led by the parties is common in all these
therefore these Appeals can be
disposed of by Common Judgment.
2. First Appeal No.188 of 2000 preferred by
the original claimant against the impugned
Judgment and award dated 12th November, 1998
passed in Land Acquisition Reference No.358 of
1995 is for enhancement of compensation, whereas
First Appeal No.219 of 1999 is preferred by the
Acquiring Body i.e. Municipal Council, Kinwat
challenging the impugned Judgment and award passed
by the Reference Court. First Appeal No.213 of
1999 is preferred by original claimant challenging
the impugned Judgment and award dated 17th
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November, 1998 passed by the Reference Court in
Land Acquisition Reference No.360 of 1995 for
enhancement of compensation ; whereas First
Appeal No.218 of 1999 is filed by the Acquiring
Body i.e. Municipal Council, Kinwat challenging
the impugned Judgment and award passed by the
Reference Court. First Appeal No.245 of 1999 is
preferred by original claimant challenging the
impugned Judgment and award dated 13th November,
1998 passed by the Reference Court in Land
Acquisition
Reference No.359 of 1995 for
enhancement of compensation.
3. Learned counsel appearing on behalf of the
original claimants categorically made a statement
that in all these First Appeals filed by them,
they are challenging the compensation awarded by
the Reference Court only; whereas the learned
Senior Counsel appearing on behalf of the
Acquiring Body made a statement that they are
challenging the additional component and interest
awarded by the Reference Court to the claimants.
Learned counsel appearing on behalf of the parties
made a statement that though they have raised some
of the grounds challenging the acquisition itself,
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10
those grounds are not pressed by them at the time
of argument and same are waived. Therefore, by
consent all these First Appeals are taken up for
final hearing on the question of market rate and
additional component as per Land Acquisition Act.
4. In First Appeal No.188 of 2000 preferred by
the original claimant, it is the case of the
Appellant that notification under Section 4 of the
Land Acquisition Act was published in the
Maharashtra
Gazette, Aurangabad Division on 10th
July, 1993. Learned Counsel Mr. M.V. Deshpande
appearing on behalf of the Appellants/ Claimants
submitted that the claimants were owner of the
land Survey No.304 admeasuring 4 Hector 9 Rs
situated within the limits of Municipal Council,
Kinwat and out of the said land, 1 Hector 84 Rs
land i.e. 2,00,376 sq. ft. land had been
acquired for the purpose of Integrated Development
Scheme, Extension of Gavthan at Kinwat. After
issuing notice under Section 4 of the Land
Acquisition Act, the Respondent State issued final
notification under Section 6 of the Land
Acquisition Act dated 30th September, 1993.
Thereafter claimants have been served with notice
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11
under Section 9 (3)(4) of the Land Acquisition Act
calling upon the claimants to raise objections, if
any in respect of measurement of the land,
personal interest and in respect of market value.
In response to the said notice the claimants filed
their written claim before the Land Acquisition
Officer and claimed market value of the acquired
land at the rate of Rs.150/- per sq. ft.
alongwith documentary evidence in support of their
claim. After following due process of law,
Special Land
Acquisition Officer declared the
award dated 12th September, 1995 and awarded
compensation in respect of acquired land at the
rate of Rs.44/- per sq. meter. The learned
counsel appearing on behalf of the original
claimants stated that the possession of the
acquired land was taken on 1st April, 1985. These
facts are not disputed by Acquiring Body and
State. Thereafter the Special Land Acquisition
Officer served notice under Section 12 (2) of the
Land Acquisition Act on 11th October, 1995 calling
upon the claimants to receive the amount of
compensation. It is the case of the claimant that
they were not present or represented at the time
when the award was passed by Land Acquisition
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12
Officer. On that day out of total compensation of
Rs.10,07,113/- only Rs.2,56,643/- were paid as
advance compensation and Rs.3,45,794/- were paid
on 11th October, 1995. Thus a total sum of
Rs.6,02,437/- were paid to the claimants due to
non availability of funds. It is the case of the
claimants that they have withdrawn the amount of
compensation of their acquired land under protest
and preferred Reference under Section 18 of the
Land Acquisition Act for enhanced compensation in
respect of
the acquired land, on 17th November,
1995. It is the case of the claimants that the
possession of the land under acquisition Survey
No.304 to the extent of 1 Hector 84 Rs had been
taken by the Acquiring Body on 1st April, 1985
along with one well, cement pipe line 4″ having
length of 300 ft., one crompton electric motor
with fans 5 HP, 46 ft. Iron pipe 2″, Crompton
Electric motor 5 HP and other articles. It is the
case of the claimants that the compensation
awarded by the Land Acquisition Officer at the
rate of Rs.44/- per sq. meter is inadequate, too
low and does not reflect the true market value of
the land under acquisition. It is the case of the
claimants that Special Land Acquisition Officer
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13
has not awarded compensation for the well, pipe
line and other articles as described by them in
their application under Section 18 of the Land
Acquisition Act. It is the case of the claimants
that the Special Land Acquisition Officer failed
to award additional component payable under
Section 23 (2) and 23 (1A) of the Land Acquisition
Act. It is the case of the claimants that Kinwat
is a Taluka place in Nanded District and has
population of more than 40,000/-. Kinwat is big
Railway station
ig on Purna Adilabad line of South
Central Railway. It is connected by Pucca Tar and
Metal roads to all the big cities in Maharashtra
and Andhra Pradesh. There is a big Depot and Bus
Station of Maharashtra State Road Transport
Corporation and S.T. service is available to all
the places connected with the road. It is the
case of the claimants that all facilities like
education, health, communication etc. are
available at Kinwat. The claimants further stated
that main road Kinwat-Nanded is at distance of 100
ft. from the land of the claimants towards the
eastern side. Towards, East, West, North and
South there are houses and Pucca construction
buildings. The forest office, post office,
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vegetable market situated abutting to the acquired
land. There are shops and kirana, cloth and other
types of shops towards North East side of the land
of the claimants. On the date of notice under
Section 4 of the Land Acquisition Act dated 10th
July, 1993 all facilities were available near the
acquired land. Considering these facts, the
claimants claim compensation in respect of the
acquired land at the rate of Rs.150/- per sq. ft.
i.e. Rs.1500/- per sq. meter along with market
value
of well, wire, fencing, houses etc. In all
claimants have claimed a sum of Rs.3,53,50,777/-
after deducting the amount paid by the Land
Acquisition Officer to them.
5. In First Appeal No.213 of 1999 learned
counsel for the Appellant submitted that out of
Survey No.305 of Kinwat 0.32 R land situated
within the limits of Municipal Council, Kinwat had
been acquired for the purpose of Integrated
Development Scheme, Extension of Gavthan at
Kinwat. He further pointed out that all
facilities were available on the date of issuing
notification under Section 4 of the Land
Acquisition Act. All these facilities are already
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explained as above in First Appeal No.188 of 2000.
6. In respect of First Appeal No.245 of 1999,
learned counsel appearing on behalf of the
Appellants pointed out that land admeasuring 1
Hector 15 Rs i.e. 1,25,235/- sq. ft. was
acquired from Survey No.306 situated within the
limits of Municipal Council, Kinwat for the
purpose of Integrated Development Scheme,
Extension of Gavthan at Kinwat. He further
submitted that
ig as on the date of issuing
notification under Section 4 of the Land
Acquisition Act, all facilities were available as
explained hereinabove in First Appeal No. 188 of
2000. First Appeal No.218 of 1999 and First
Appeal No.219 of 1999 are filed by the Acquiring
Body, Municipal Council, Kinwat challenging the
Judgment and award passed by the Reference Court.
7. In short following lands were acquired in
all these First Appeals:-
…………………………………………..
First Appeal Acquired Survey Compensation
No. Land No. awarded by
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S.L.A.O.
………………………………………….
1 H. Rs.44 per sq.
188/2000 84 Rs 304 meter.
213/1999 32 Rs 305 Rs.44 per sq.
meter.
245/1999 1 H. 306 Rs.44 per sq.
15 Rs
ig meter.
………………………………………….
. The claimants in all these Appeals have
claimed the amount of compensation at the rate of
Rs.150 per sq. ft.
8. The Respondent- State filed their written
statement in Reference Court and opposed
enhancement in respect of acquired land on various
grounds. Learned A.G.P. Mr. Ghadge appearing on
behalf of the State pointed out that the Special
Land Acquisition Officer awarded compensation in
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respect of acquired land at the rate of Rs.44/-
per sq. ft. as per prevailing market rate as on
the date of issuing notification under Section 4
of the Land Acquisition Act i.e. 10th July, 1993.
Learned A.G.P. Mr. Ghadge also pointed out that
as per the joint measurement report there was
well, house, pipe line and wire fencing but at the
time of spot enquiry, it has been found that they
were in a dilapidated condition. Learned A.G.P.
further pointed out that the lands under
acquisition are towards the Western side of Kinwat
town and are near to Penganga river. In the year
1983 and 1988 due to heavy flood to Penganga river
the entire acquired land and some part of Kinwat
town came under the flood zone and therefore the
market value of the acquired land cannot be
compared with the other lands situated near the
acquired lands. Considering these facts, Special
Land Acquisition Officer awarded compensation in
respect of acquired land as per market value i.e.
Rs.44/- per sq. ft.
9. The Acquiring Body i.e. Municipal Council
by filing their written statement in Reference
Court opposed the enhancement of compensation in
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respect of the acquired land on the ground that
the claimants failed to produce comparable sale
instances to show that they are entitled to
enhanced compensation in respect of acquired land.
Not only that the Acquiring Body also opposed
enhancement of compensation on the ground that
acquired lands were not in developed area.
10. The Reference Court after hearing all the
parties, by the impugned Judgment and award,
dismissed the
ig claim for enhancement of
compensation but partly allowed the claim to the
extent of interest to be paid to the claimants
over the amount of compensation.
11. Learned senior counsel Mr. Mandlik and
counsel Mr. B.A. Darak, appearing on behalf of
Municipal Council, Acquiring Body, submitted
written submission and same is taken on record.
Though in the written submission Acquiring Body
has raised objection about earlier notification
issued under Section 4 of the Land Acquisition Act
dated 6th May, 1976, at the time of argument they
made a categorical statement that they do not want
to press their objection about subsequent
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notification issued by Respondent Nos. 1 and 2
under Section 4 of the Land Acquisition Act dated
10th July, 1993. The learned senior counsel Mr.
Mandlik and counsel Mr. B.A. Darak made
categorical statement that they are proceeding in
the above mentioned matters on the basis of
subsequent notification dated 10th July, 1993
issued under Section 4 of the Land Acquisition Act
only. The learned senior counsel Mr. Mandlik
submitted that as the possession of the suit land
was
taken on 1st April, 1985 and 80% amount i.e.
compensation at the market rate was paid to the
claimants and remaining 20% amount was also paid
to the claimants along with interest at the time
of award, therefore, no further claim remained to
be paid. Mr. Mandlik, learned senior counsel and
counsel Mr. B.A. Darak further submitted that
suit land is agricultural land and it remained as
agricultural land till the date of possession and
also till the date of award. The claimants failed
to produce any evidence regarding adjacent similar
agricultural lands in support of their claim for
enhancement and therefore they are not entitled
for enhancement and learned Reference Court
rightly rejected their claim for enhancement.
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They further submitted that considering the
provisions of Section 23 of the Land Acquisition
Act, claimants are not entitled for any amount
under Section 23 (1A) of the Land Acquisition Act
as the possession is taken on 1st April, 1985 much
prior to date of notification under Section 4 of
the Land Acquisition Act i.e. 10th July, 1993.
The learned Senior Counsel Mr. Mandlik further
submitted that the Reference Court erred in
awarding interest at the rate of 9%, 12% and 15%
under
the different heads to the claimants though
they are not entitled to the same. In support of
these submissions, Mr. Mandlik learned senior
counsel relied on the following Authorities:
i) Ram Jatan and others vs. Dy. Director of
Consolidation and others, 1996 (7) SCC 544,
ii) Yadu Nandan Garg vs. State of Rajasthan
and others, AIR 1996 SC 520,
iii) State of Himachal Pradesh and others vs.
Dharam Das, AIR 1996 SC 127,
iv) Smt. Kamalabi Jageshwar Joshi and others
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vs. State of Maharashtra and others, AIR 1996 SC
981.
12. On the basis of these submissions learned
senior counsel Mr. Mandlik submitted that the
Appeals preferred by the Municipal Council, Kinwat
may be allowed and the First Appeals filed by the
claimants be rejected.
13. In the
igabove mentioned facts and
circumstances now we have to decide:
(a) whether claimants are entitled for enhanced
compensation in respect of acquired land as on the
date of the notification under Section 4 of the
Land Acquisition Act dated 10th July, 1993?
(b) Whether claimants are entitled to 12%
component payable under Section 23 (1-A) of the
Land Acquisition Act from the date of possession
i.e. 1st April, 1985 till the date of award? and
(c) Whether claimants are entitled for interest
on enhanced compensation,if it is enhanced, from
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the date of possession i.e. 1st April, 1985?
14. In support of the contention on behalf of
the claimants/ Appellants learned counsel Mr.
Deshpande submitted that claimants in all produced
eleven (11) sale deeds in Reference Court to
support their contention that they are entitled to
the compensation in respect of land at the rate of
Rs.150/- per sq. ft. He further submitted that
though the
sale deeds were in respect of small
plot of lands, same can be considered after
deducting some amount towards smallness of the
land involved under the sale deeds. At this
juncture, it is necessary for us to refer the Apex
Court Judgment in the matter of Chimanlal
Hargovinddas vs. Special Land Acquisition
Officer, AIR 1988, Supreme Court, 1652 for
considering the claim of the claimants for
enhancement of compensation. 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 and also guided
methodology of determination of market value.
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Para 3 and 4 of the said Judgment read as under:-
“3 Before tackling the problem of
valuation of the land under acquisition itis necessary to make some general
observations. 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 underAppeal and has evinced unawareness of the
methodology 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 thematerial relied upon by the Land
Acquisition Officer in his Award
unless 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 the
award, approve or disapprove itsreasoning, or correct its errors or
affirm, modify or reverse the
conclusions reached by the Land
Acquisition Officer, as if it were
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24(3) The court has to be treat the
Reference as an original proceeding
before it and determine the marketvalue 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 inthe 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 dateof publication of the notification
under Section 4 of
Acquisition Act
the
(date
Land
of
notifications under Ss. 6 and 9are irrelevant).
(6) The determination has to be
made standing on the date line of
valuation (date of publication of
notification under S.4) as if thevaluer is a hypothetical purchaser
willing to purchase land from theopen 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).::: Downloaded on – 09/06/2013 14:22:15 :::
25(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 thepurchaser 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 ig (ii) proximity situation angle from (11) Having identified theinstances which provides the index
of market value the price reflected
therein may be taken as the norm
and the market value of the land
under acquisition may be deduced by
making suitable adjustments for theplus and minus factors vis-a-vis
land under acquisition by placingthe two in juxtaposition.
(12) A balance sheet of plus and
minus factors may be drawn for this
purpose and the relevant factor maybe 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 pricereflected in the instance taken as
norm for plus factors and unloading
it for minus factors.(14) The exercise indicated in
::: Downloaded on – 09/06/2013 14:22:15 :::
26clause (11) to (13) has to be
undertaken in a common sense manner
as a prudent man of the world ofbusiness 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
acquisition
land under7. Special value for an owner of
an adjoining property to whom it
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 depth4. Lower level requiring the
depressed portion to be filled up5. Remoteness from developed
locality
6. Some special disadvantageous
factor which would deter a
purchaser::: Downloaded on – 09/06/2013 14:22:15 :::
27(15) The evaluation of these
factors of course depends on thefacts of each case. There cannot
be any hard and fast or rigid rule.
Common sense is the best and mostreliable 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 landsay 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 openspace, plotting out smaller plots,
waiting for purchasers (meanwhilethe invested money will be blocked
up) and
enterpreneur.the hazards The factor can be ofdiscounted by making a deduction by
way of an allowance at an
appropriate rate ranging approx.
between 20% to 50% to account for
land required to be set apart for
carving lands and plotting out
small plots. The discounting willto some extent will also depend on
whether it is a rural area or urbanarea, 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 andthe attendant hazards.
(16) Every case must be dealt with
on its own fact pattern bearing in
mind as these factors as a prudentpurchaser 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.”::: Downloaded on – 09/06/2013 14:22:15 :::
2815. In support of claimants claim for
enhancement of compensation in respect of acquired
land, they relied on following sale instances:-
(a) As per sale deed Exhibit 38 dated 1st January, 1990 Plot No.14/305 in Ward No.14 having area of 464.51 was sold at the rate of Rs.269.10 per sq. meter. (b) As per sale deed Exhibit 39 dated 15th February, 1990, Plot No.14/163 in Ward No.14 having area of 101.20 sq. meter was sold at the rate of Rs.296.44 per sq. meter. (c) As per sale deed Exhibit 40 dated 16th June, 1990, Plot No.1/74 in Ward No.1 having area of 194.30 sq. meter was sold at the rate of Rs.257.33 per sq. meter. (d) As per sale deed Exhibit 41 dated 9th September, 1992, Survey No.268 having area of 50.83 sq. meter was sold at the rate of Rs.295.10 per sq. meter. ::: Downloaded on - 09/06/2013 14:22:15 ::: 29 (e) As per sale deed Exhibit 42 dated 13thJuly, 1993, Plot No.12 in Survey No.141 (old), New
Survey No.303 in Ward No.13, having area of 180
sq. meter was sold at the rate of Rs.361.66 per
sq. meter.
(f) As per sale deed Exhibit 43 dated 15th
July, 1993, Plot No.1 in Ward No.16 having area of
101.20 sq. meter was sold at the rate of
Rs.494.07 per sq.
ig meter.(g) As per sale deed Exhibit 46 dated 26th
July, 1993, Plot No.5 in Ward No.13, Survey No.141
(old) and Survey No.303 (new) having area of 150
sq. meter and three old rooms was sold at the
rate of Rs.1473.33 per sq. meter.
(h) As per sale deed Exhibit 47 dated 26th July, 1993, Plot No.13 in Ward No.13, Survey No.141 (old), Survey No.303 (new) having area of 150 sq. meter was sold at the rate of Rs.463.33 per sq. meter. (i) As per sale deed Exhibit 48 dated 28th ::: Downloaded on - 09/06/2013 14:22:15 ::: 30 March, 1995, Plot No.4 in Ward No.13 in Survey No.141 (old), Survey No.303 (new) having area of 150 sq. meter along with parking shed was sold at the rate of Rs.826.66 per sq. meter. (j) As per sale deed Exhibit 49 dated 28th June, 1995, one plot from Survey No.141 (old), Survey No.303 (new) having area of 150 sq. meter with parking shed was sold at the rate of Rs.1026.66 per sq. meter. (k) As per sale deed Exhibit 70 dated 24th April, 1992 Plot having area of 111.55 sq. meter was sold at the rate of Rs.537.87 per sq. meter. 16. The claimants also produced map at Exhibit 63 showing the acquired land and distance of the lands under sale deeds from the acquired land. If we carefully go through the map at Exhibit 63 it shows that the sale deed referred above are adjacent to the acquired land. Though the sale deeds are in respect of small plot of lands, same can be considered for fixing market value of acquired land after deducting some development charges, smallness of plot and other facilities, ::: Downloaded on - 09/06/2013 14:22:15 ::: 31except sale deeds at Exhibit 46, 48 and 49 because
in these sale deeds land sold is along with
structure. The average of these sale deeds comes
to Rs.371.86 per sq. meter. [Exh.38 Rs.269.10 +
Exh.39 Rs.296.44 + Exh.40 Rs.257.33 + Exh.41
Rs.295.10 + Exh.42 Rs.361.66 + Exh.43 Rs.494.07 +
Exh.47 Rs.463.33 + Exh.70 Rs.537.87; Total
Rs.2974.90 / 8=371.86]. Though the land acquired
in question was agricultural land on the date of
notification under Section 4 of the Land
Acquisition Act,
ig the same was situated neardeveloped areas. These facts are also considered
by the Special Land Acquisition Officer in his
award under Section 11 of the Land Acquisition
Act. It is specifically stated by the Special
Land Acquisition Officer in his award dated 12th
September, 1995 under the caption “valuation
report” that though the lands in question are
agricultural lands but considering the
potentiality of the acquired land, valuation to be
done on the basis of non agricultural land.
Considering these facts we can safely rely on the
sale deeds produced by the claimants.
17. The claimants examined following witnesses
::: Downloaded on – 09/06/2013 14:22:15 :::
32in support of their contention about valuation.
At Exhibit 78 Devisingh Dharamsingh Jadhav, the
chairman of Co-operative Cotton Ginning and
Pressing Society Ltd., Kinwat. He was chairman of
said society for the period 1992 to 1998. He has
stated in his evidence that they have sold plots
of the society by auction on 13th April, 1993.
The auction took place on 20th April, 1993 and
they sold plot Nos. 12, 5 and 13. He stated that
Plot No.12 was purchased by Dr. Vivek Shankarrao
Bhalerao
for Rs.65,100/- admeasuring 15 X 12 sq.
meters i.e. 180 sq. meter, Exhibit 42. In
similar way he explained the other sale instances.
Those sale deeds are at Exhibit 46, 47, 48, 49.
The another witness Premkumar Ramji Jadhav
examined at Exhibit 93 stated that he purchased
plot No.1 admeasuring 33 X 33 ft. from
Municipality Kinwat in auction for Rs.50,000/- on
15th July, 1993, i.e. Exhibit 43. Another
witness Pradip Gajanan Chadawar at Exhibit 94
stated that he purchased plot admeasuring 40 X 50
ft. on 24/4/1992 for Rs.60,000/- i.e. Exhibit
70.
18. Considering these facts the valuation of
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33the acquired land can be done by deducting some
amount towards development charges and other
expenses including smallness of the area of the
land. Our High Court in the matter of Goa Housing
Board and another vs. Attorney of Communidade of
Mapusa, reported in 2008(1) Bom.C.R. 356 held
that considering the situation of the land and
area involved in the sale deed, deductions can be
done upto 45%. Para 10 of the said Judgment reads
as under:
“10. As noted by the Division Bench of
this Court in unreported decision dated
15/9/2004 in First Appeal No.150 of 2003
between the Managing Director, Goa IDC vs.
Shri Sadashiva S. N. Sardessai and
others, as far as standard deductions are
concerned it is well established that about30% deductions are found to be just and
proper but at the same time deductionscould go even upto 60% depending upon the
facts of each case. A deduction of 50% was
taken in the case of (State of Goa vs.
President of Our Lady of Piety Church,
Mardol) (unreported decision dated3/11/2004 in First Appeal No.132 of 2002.
When large tract of land is developed, time
is taken for formation of lay out, there is
waiting period for which the money would
remain blocked up in investment and the
price is reduced when lumpsum payment is
made. The land in that case was muchlarger than the case at hand. Considering
the facts of this case, where the area
acquired was comparatively large and which
also required to be developed, the learned
trial court ought to have taken a deduction
of 45%. When such a deduction is taken the::: Downloaded on – 09/06/2013 14:22:15 :::
34fair market value of the acquired land can
be fixed at Rs.69 per sq. mt. (rounder
off from Rs.68.75). This market value isvery close to the very price paid for plots
of land sold by Goa Housing Board, after
developing the property, deducting the costof development and sold at the rate of
Rs.61 per sq. mt. in the year 1983 and
Rs. 68/- per sq. mt. in the year 1985 as
stated by the Board’s Engineer Shri
Radhakrishnan/RW2.”19. In another case our High Court in the
matter of State of Maharashtra vs. Santaram
Mahadu Pingle and others, reported in 2008 (5) Mh.
L.J.
of the land
Page 52 held that considering the smallness
under sale deed produced by the
claimants, 30% amount needs approximately to be
deducted from the average rate of sale deeds.
Para 15 of the said Judgment reads as under:-
“15. The average of exhibits 13 and 46
(after giving rise of 12%) would come to
Rs.1,79,613. Now, ancillary question that
the Court is called upon to consider is
whether the average value could be awardedto the claimants on account of compensation
per Hectare for acquisition of their land
or certain reduction shall have to be made
keeping in view that the sale instances
produced by the Respondents or claimants
relate to very small pieces of land. We
are of the considered view that someelement of deduction would have to be
applied. Under Exhibit 13, land
admeasuring only 0.055 Ares were sold while
under Exhibit 46, area admeasuring 00.80
Ares was sold. Certainly, the value
indicated in the sale instances can be::: Downloaded on – 09/06/2013 14:22:15 :::
35taken into consideration by the Court while
determining the market value of the land in
question but it is necessary to examinethat the acquisition was of a huge land and
these sale instances would not be a fair
indicator of the price relating to suchland. The Supreme Court has consistently
held that the Court should apply principle
of deduction on the basis of the sale
instances of small piece of lands.Reference can be made to the Judgement of
the Supreme Court in the cases of (i)
Krishi Utpadan Mandi Samiti Sahaswan,
District Badaun vs. Bipinkumar and
another, (2004) 2 SCC 283 and (ii) Lucknow
Development Authority vs. Krishna Gopal
Lahoti and others, 2007 (12) SCALE 685.Element of discretion has been vested in
the Courts while determining the extent ofcases.
deduction that could be applied in such
In the case of Atma Singh vs.
State of Haryana, (2008) (2) SCC 568, the
Supreme Court held that it is not mandatoryto apply deduction on the ground of sale
instances being of small plots but it will
have to be determined on the facts of each
case. In that case, considering the
special facts relating to the production of
sugar from the land and profitable use ofthe land for by-products like molasses,
etc.; the Court reduced the deduction from30% applied by the High Court to 10% to
meet the ends of justice but the principle
of deduction was accepted. Reference in
this regard can also be made to the
Judgment of the Supreme Court in the caseof Krishi Utpadan Mandi Samiti Sahaswan and
Krishna Gopal Lahoti (supra). Of course,
it would vary again as to what percentage
of deduction should be applied in the facts
of given case. In this case, the land has
been acquired not for developing in
residential or commercial complexes but forsubmerging as a result of Bhima Askhed
Project. Thus, it is an investment by the
State Government for general public utility
and good that is to generate electricity
and / or to provide irrigation facilities
to the agricultural land of the villages.::: Downloaded on – 09/06/2013 14:22:15 :::
36Keeping in mind this fact are not even
disputed before, they would have to be
considered as relevant consideration inapplying the element of deduction to the
average price of both the aforenoticed
exhibits. At least, the deduction of 30%would be fair and proper in the facts of
the case. The average of the exhibits 13
and 46, we have calculated at Rs.1,79,613,
30% of this amount comes to approximately
Rs.53,884 and if this amount is deducedfrom the average amount of Rs.1,79,613, the
fair market value comes to Rs.1,25,729.
The computation arrived at by us is quiet
close to the compensation awarded by the
learned Reference Court for different
reasons. There is no occasion for thisCourt to grant to the claimants enhanced
compensation or whatever marginal increasefound by us in the fair market value of the
lands acquired, as no Appeals/
objections have been
cross
preferred by the
claimants.”20. In similar way, our High Court in the
matter of Deputy Collector (Dev) & Land vs.
Sitadevi @ Jaya Raghuraj Deshprabhu, reported in
2009 (1) Bom.C.R. 163 held that upto 40%
deductions can be done for considering the market
value on the basis of the sale deeds in respect of
small plots of land. Para 10 of the said Judgment
reads as under:-
“10. As already stated, with reference
to the case of Chimanlal Hargovinddas vs.
Special Land Acquisition Officer (supra)
the percentage of deduction to be made is
not a matter of a principle of law. It
varies from place to place, area to area::: Downloaded on – 09/06/2013 14:22:15 :::
37and the amount of development which is
required to be carried out and thus there
cannot be any fixed amount of deductiontowards development charges. The area
acquired in this case is comparatively
large than the area acquired in theprevious acquisition in L.A.C. No.77 /86
which was merely 5533 sq. meters.
Deductions were therefore required to be
made not only towards development but also
on account of the largeness of the area.It is common knowledge that when several
plots are made of a large area time is
taken to sale the same and smaller plots
always fetch a higher value than large
areas of land. Although the subject land
was closer to the market place than theland acquired in L.A.C. No.77/86, it
appears that the subject land was moresloppy and terraced then the other land and
considering the same in order to make it
developed land a considerable amount of
expenditure would have been required.Considering the facts and circumstances of
the case, therefore, in our view 40% of
deduction both towards development as well
as largeness of area would be appropriate
and if such a deduction is made, the fair
market value of the acquired land works outto Rs.78.00 per sq. meter. Therefore, we
fix the fair market of the acquired land inthis case at Rs.78.00 per sq. meter and
modify the impugned award accordingly.”21. In similar way the Apex Court also held
that development charges can be deducted upto 53%
depending upon the nature of the land and other
material things. Reference can be safely made to
the Apex Court Judgment in the case of K.S.
Shivadevamma and others vs. Assistant
::: Downloaded on – 09/06/2013 14:22:15 :::
38Commissioner and Land Acquisition Officer and
another, reported in 1996 (2) Supreme Court Cases,
Page 62. The Apex Court held that land situated
in a developing area but no development had taken
place as of the date of notification under Section
4(1) then also development charges to be deducted
for fixing market value of land. It is further
held that lands possessed of potential value for
building purposes but not capable of putting to
immediate use for building purpose, in such case
extent of
deduction for development charges
depends upon development needed in each case. The
Apex court further held that in the circumstances
of the case deduction of 53% under Building Rules
and further deduction towards development charges
@ 33 1/3% ordered by the High Court is not
illegal.
22. On the other hand, the learned counsel
appearing on behalf of the Respondents Acquiring
Body submitted that small plots of land cannot be
considered for fixing market value of large
acquired land as in the above mentioned Appeals.
Learned senior counsel Mr. Mandlik appearing on
behalf of Acquiring Body relied on Judgment of the
::: Downloaded on – 09/06/2013 14:22:15 :::
39Apex Court in the matter of (i) Pitambar Hemlal
Badgujar (Dead) by LRs vs. Sub-Divisional
Officer, Dhule and another reported in (1996) 7
Supreme Court Cases 554, (ii) State of M.P. etc.
vs. Harishankar Goel and another, reported in
A.I.R. 1996 Supreme Court 3478, (iii) State of
Himachal Pradesh and others vs. Dharam Das,
reported in 1995 A.I.R. S.C.W. 3817, (iv) State
of Maharasshtra vs. Fulyabai Kisan Govardhane and
others reported in 2008 (3) Mh. L.J. 278, (v)
Executive Engineer
ig P.W.D. VI (R and B) vs.Antonio Almeida and others, reported in 2008 (2)
Mh. L.J. 815 for supporting his submissions
about deductions towards development charges and
also towards small plot of lands involved in the
sale deeds. We have carefully gone through all
these Authorities. In all these Authorities the
Apex Court as well as our High Court held that if
Courts are relying for fixing market value of the
acquired land on the basis of the small piece of
land, in that case deduction are required to be
made for arriving market value of the acquired
land. In all these matters referred above, the
Apex Court as well as our High Court suggested
deduction ranging from 20% to 65%. In the matter
::: Downloaded on – 09/06/2013 14:22:15 :::
40of Executive Engineer P.W.D. vs. Antonio Almeida
(supra) Bombay High Court, Bench at Goa, held that
65% deductions in relation to the price of land
under sale deed before taking market value can be
done considering the potentiality of the acquired
land.
23. The Reference Court for coming to the conclusion that Appellant/ original claimants are not entitled any enhanced compensation in respect of acquired land, ig relied on sale instances at Exhibit 107 and 108. Both Sale deeds at Exhibit107 and Exhibit 108 are dated 5/3/1993. The
Reference Court mainly relied on these two sale
instances at Exhibit 107 and 108. The lands under
these sale deeds are situated within the vicinity
of the lands acquired. Reference Court failed to
appreciate that lands involved under sale deeds
Exhibit 107 and 108 are agricultural lands having
no “NA” potentiality; whereas in respect of
acquired land, S.L.A.O. himself in his award
dated 12th September, 1995 held that acquired land
is situated within the vicinity of developed area
and having “NA” potentiality. Therefore, the
Reference Court erred in coming to the conclusion
::: Downloaded on – 09/06/2013 14:22:15 :::
41that market value determined by the S.L.A.O. as
on the date of issuing notification under Section
4 of the Land Acquisition Act is true market value
on the basis of sale instances at Exhibit 107 and
108. Sale instances Exhibit 107 and 108 placed on
record by witness No.1 for Respondent No.3 Mr.
Ganpat Sambhiya Samshettiwar. But in cross
examination in para 8 the said witness
specifically stated that:
“I was not present at the time of execution
and registration of the sale deed Exhibit
107 and 108 and I am having no personal
knowledge about the sale sale
transactions.”
. This itself shows that witness No.1 for
Respondent No.3 had no personal knowledge about
the sale transaction pertaining to Exhibit 107 and
108. Inspite of that the Reference Court relied
on these two sale instances at Exhibit 107 and 108
for rejecting the original claimants Reference
under Section 18 of the Land Acquisition Act for
enhanced compensation.
::: Downloaded on – 09/06/2013 14:22:15 :::
4224. In the above facts and circumstances, we
hold that the Reference Court erred in coming to
the conclusion that the claimants have failed to
discharge the burden that they are entitled
compensation in respect of acquired land at the
rate of enhanced rate.
25. Considering the Authorities cited by the
Appellant as well as Respondents we have to decide
the percentage
ig of deduction for coming to theconclusion of market value of the acquired land on
the basis of the sale deeds produced by the
Appellant which are in respect of small plots of
land. Considering the area of land involved in
sale deeds produced by the claimants we can safely
deduct 40% towards development charges as the land
acquired in the present case is agricultural land
and further 40% deductions towards smallness of
the lands involved in sale deeds produced by the
claimants for determining market value of the
acquired land. Therefore, for arriving the market
value of the acquired land as on the date of
issuing notification under Section 4 of the Land
Acquisition Act, we have to deduct 80% from
::: Downloaded on – 09/06/2013 14:22:15 :::
43average price of sale deeds i.e. from Rs.371.86
(as per Para 16 above). The average of above
mentioned sale deeds comes to Rs.371.86 and after
deducting 80% of the said comes to Rs.74.37
(371.86 – 297.49 i.e. 80% =74.37 i.e. 20%).
Therefore the market value of acquired land as on
the date of issuing notification under Section 4
of the Land Acquisition Act comes to Rs.75 per sq.
meter.
26. The learned counsel Mr. Deshpande appearing on behalf of the claimants submitted that the Reference Court failed to consider awarding of component at the rate of 12% payable under Section 23 (1-A) of the Land Acquisition Act. Section 23 (1-A) of the Land Acquisition Act reads as under:[(1A) In addition to the market value of
the land, as above provided, the Court
shall in every case award an amount
calculated at the rate of twelve per centum
per annum on such market value for the
period commencing on and from the date of
the publication of the notification underSection 4, sub section (1) in respect of
such land to the date of the award of the
Collector or the date of taking possession
of the land, whichever is earlier;Explanation- In computing the period
::: Downloaded on – 09/06/2013 14:22:15 :::
44referred to in this sub section any period
or periods during which the proceedings for
the acquisition of the land were held up onaccount of any stay or injunction by the
order of any Court shall be excluded.]27. Mr. Deshpande, Learned counsel appearing
on behalf of the claimants submitted that the
claimants are entitled 12% component payable under
Section 23 (1-A) of the Land Acquisition Act from
the date of possession i.e. 1st April, 1985 till
the date
Acquisition Act
of award under Section 11 of
i.e. 12th September, 1995.
the Land On the other hand, learned senior counsel Mr. Mandlik and counsel Mr. B.A. Darak on behalf of the Respondent Acquiring Body submitted that the claimants are not entitled 12% component payable under Section 23 (1A) of the Land Acquisition Act because the possession of the acquired land was taken prior to issuance of notification under Section 4 of the Land Acquisition Act. He submitted that it is clear from Section 23 (1-A) of the Land Acquisition Act that the starting point for the purposes of calculating the amountfor additional component to be awarded thereunder,
at the rate of 12 % per annum on the market value,
::: Downloaded on – 09/06/2013 14:22:15 :::
45is the date of publication of the Section 4
notification. The terminal point for the purpose
is either the date of the award or the date of
taking possession, whichever is earlier. Mr.
Mandlik, learned senior counsel submitted that in
the present case the possession of the land having
been taken prior to the publication of the Section
4 notification i.e. on 1st April, 1985, the
starting point is not available. The only
available starting point is date of award and
therefore when possession of the land was taken on
1st April, 1985 and notification under Section 4
of the Land Acquisition Act in relation to the
said land was issued thereafter on 10th July,
1993, the claimants are not entitled component at
the rate of 12 % payable under Section 23 (1-A) of
the Land Acquisition Act.
28. The submission made by the learned senior
counsel is not justifiable in view of the Apex
Court decision in the matter of Sidappa Vasappa
Kuri and another vs. Special Land Acquisition
Officer and another, AIR 2001 Supreme Court 2951.
2951
The Apex Court in this case held that if the
possession of the acquired land is taken before
::: Downloaded on – 09/06/2013 14:22:15 :::
46the issuance of notification under Section 4 of
the Land Acquisition Act, the claimants are
entitled 12 % component under Section 23 (1-A) of
the Land Acquisition Act from the date of
notification under Section 4 till the date of
award. Para 5 and 6 of this Judgment reads as
under:
“5 It is, as we see it, clear from Section
23 (1-A) that the starting point for the
purposes of calculating the amount to beawarded thereunder, at the rate of 12 % per
centum per annum on the market value, is
the date of publication of the Section 4
notification. The terminal point for thepurpose is either the date of the award or
the date of taking possession, whichever is
earlier. In the present case, possession
of the land having been taken prior to the
publication of the Section 4 notification,
that terminal is not available. The onlyavailable terminal is the date of the
award. The High Court, therefore, was inno error in holding that the Appellants
were entitled to the additional
compensation under Section 23 (1-A) for the
period 8th March, 1991 to 6th February,
1993.6. Section 23 (1-A) admits of no meaning
other than the meaning that we have placed
upon it. There is no room here for any
construction other than than given above.
It is only where a provision is ambiguous
that a construction that leads to a resultthat is more just can be adopted. Having
regard to its clear terms, Section 23 (1-A)
must receive the only construction it can
bear. We are of the view, therefore, that
the law has been correctly laid down in the
decision in Special Tahasildar (LA) PWD::: Downloaded on – 09/06/2013 14:22:15 :::
47Schemes vs. M.A. Jabbar (1995) (2) SCC
142) and that it has not been correctly
laid down in Assistant Commissioner, Gadagsub Division vs. Mathapati Basavannewwa
(1995 (6) SCC 355) and , for that matter in
State of H.P. vs. Dharam Das (1995 (5)SCC 683).”
29. Reference can be made to the Judgment of
the Apex Court in the matter of Special Tahasildar
(LA) P.W.D. Schemes, Vijayawada, reported in
(1995) 2 Supreme Court Cases, 142 wherein the Apex
Court
amount
held that claimants are entitled additional
under Section 23 (1-A) of the Land
Acquisition Act for the period between Section 4
notification till the date of award and not from
the date of taking possession. Para 3 of the said
Judgment reads as under:
“3. On a true interpretation of
sub-section (1-A) of Section 23, we are of
the considered view that the High Court isright in concluding that the claimants are
entitled to the additional amount at the
rate of 12 % per annum from 6-3-1980, the
date of publication of the notification
till the date of award, namely, 30-9-1983.
Sub-section (1-A) of Section 23 adumbrates
that:“In addition to the market value of
the land, the Court shall in every
case award an amount calculated at
the rate of twelve per centum per
annum on such market value for the::: Downloaded on – 09/06/2013 14:22:16 :::
48period commencing on and from the
date of the publication of the
notification under Section 4 (1),in respect of such land to the date
of the award of the Collector or
the date of taking possession ofthe land, whichever is earlier.”
In other words, the owner of the land who
has been deprived of the enjoyment of the
land by having been parted with possession,the Act intended that the owner be
compensated by awarding an additional
amount calculated at the rate of 12 per
centum per annum on the enhanced market
value for the period between the date of
notification and the date of award or dateof taking possession of the land whichever
is earlier. Admittedly, possession havingalready been taken on 15-2-1965, before
publication of the notification
Section 4 (1) on 6-3-1980, the award of
underadditional amount for the period from
6-3-1980 to 30-9-1983, i.e. the date of
making the award under Section 11 is
perfectly correct. In addition to other
statutory benefits, the owner also is
entitled to the additional amount but to
give in award additional amount from15-2-1965, i.e. from the date of taking
possession, though apparently earlier inpoint of time mentioned in Section 23
(1-A), in effect it amounts to giving
retrospective effect to sub-section (1-A)
to Section 23 under the Amendment Act 68 of
1984, even though the Amendment Act wasprospective and the transitory provision
had only retro-limited activity.”
30. In view of these facts we hold that
claimants are entitled to 12% component payable
under Section 23 (1-A) of the Land Acquisition Act
from the date of notification under Section 4 i.e.
10th July, 1993 till the date of award passed by
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49
the Land Acquisition Officer i.e. 12th September,
1995.
31. Mr. Mandlik, learned senior counsel and
counsel Mr. B.A. Darak appearing on behalf of
Respondent Acquiring Body submitted that the
Reference Court erred in awarding interest at the
rate of 9% per annum from 1st April, 1985 i.e.
from the date of possession till 30/3/1986 and at
the rate of 15% per annum from 1st April, 1986
till 1st
October, 1988. Learned senior counsel
submitted that the claimants are not entitled to
interest under Section 34 of the Land Acquisition
Act because the Respondents already paid the
amount of compensation to the claimants as
determined by previous draft award. It is not
possible to accept the submission made by learned
senior counsel Mr. Mandlik appearing on behalf of
Respondent Acquiring Body because payment of
interest under Section 28 and 34 of the Land
Acquisition Act is a statutory benefit provided to
the claimants under certain circumstances. Though
in the present case the possession of the acquired
land was taken on 1st April, 1985 pursuant to the
draft award prepared by the Special Land
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50
Acquisition Officer but subsequently the same was
dropped and fresh notification under Section 4 of
the Land Acquisition Act issued on 10th July, 1993
for acquiring the land of the claimants, claimants
are entitled interest under Section 28 and 34 of
the Land Acquisition Act. Therefore, in any case
the proceedings adopted by the Respondents prior
to 10th July, 1993 were vitiated. Therefore,
though the possession is taken by Acquiring Body
on 1st April, 1985 before issuing notification
under
Section 4 of the Land Acquisition Act dated
10th July, 1993, the claimants are entitled to
interest under Section 28 and 34 of the Land
Acquisition Act. It is well settled principle of
law that if the amount is paid and/or deposited in
the Court by Acquiring Body and/or Land
Acquisition Officer in that case the
responsibility to pay further interest comes to an
end there itself. In the present case as we held
that the claimants are entitled to enhanced
compensation in respect of acquired land at the
rate of Rs.75/- per sq. meter, claimants are
entitled to interest under Section 28 and 34 of
the Land Acquisition Act from the date of
possession i.e. 1st April, 1985.
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51
32. The Apex Court in the matter of Prem Nath
Kapur and another vs. National Fertilizers
Corporation of India Ltd. and others, reported in
(1996) 2 Supreme Court Cases 71 held that
liability of State to pay interest ceases when
amount of compensation is paid to the claimant or
deposited in the Court. The Apex Court further
held that the claimant is not entitled to
appropriate from the amount deposited towards
costs,
interest, additional amount under Section
23 (1A) with interest and then claim the total
balance amount with interest. Considering this
principle the amount already paid to the claimants
will not carry any further interest at the time of
adjusting the total compensation payable to the
claimants. Therefore, we hold that the claimants
are entitled to interest under Section 28 of the
Land Acquisition Act from the date of possession
i.e. 1st April,1985 onwards on the enhanced
compensation. The Reference Court is required
calculate the exact amount payable to the
claimants considering the principles laid down by
the Apex Court in the matter of Prem Nath Kapur
(supra).
(supra)
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52
33. In view of the above mentioned facts and
circumstances the Appeals preferred by the
claimants i.e. First Appeal No. 188 of 2000,
First Appeal No.213 of 1999 and First Appeal
No.245 of 1999 are partly allowed holding that the
claimants are entitled to compensation in respect
of acquired land at the rate of Rs.75/- per sq.
meter along with 12% component payable under
Section 23 (1-A) of the Land Acquisition Act from
10th July, 1993 i.e.
ig from the date of issuance of
notification under Section 4 of the Land
Acquisition Act till 12th September, 1995 i.e.
the date of award passed by the Land Acquisition
Officer under Section 11 of the Land Acquisition
Act and 30% solatium payable under Section 23 (2)
of the Act. We further hold that the claimants
are entitled to interest under Section 28 of the
Land Acquisition Act on excess of the sum awarded
by us from the date of possession i.e. 1st April,
1985. The Appeals preferred by Acquiring Body
i.e. First Appeal No.218 of 1999 and First Appeal
No.219 of 1999 are dismissed. In view of the
above mentioned facts and circumstances we modify
the Judgment and award passed by the Reference
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53
Court as follows:
(i) Claimants are entitled compensation in
respect of acquired land at the rate of Rs.75/-
per sq. meter.
(ii) The claimants are entitled to 12% component
payable under Section 23 (1-A) of the Land
Acquisition Act
igfrom 10th July, 1993 i.e. from
issuance of the notification under Section 4 of
the Land Acquisition Act till 12th September, 1995
i.e. the date of award passed by the Land
Acquisition Officer and 30% solatium payable under
Section 23 (2) of Land Acquisition Act.
(iii) The claimants are entitled to interest
under Section 28 of the Land Acquisition Act on
excess of the sum awarded from the date of
possession i.e. 1st April, 1985 for first year @
9% and thereafter @ 15% from the date of expiry of
the said period of one year till payment.
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54
(iv) Appeals preferred by the Acquiring Body
i.e. First Appeal No.218 of 1999 and First Appeal
No.219 of 1999 are dismissed.
(v). No order as to the costs.
[K.K. TATED] [P.V. HARDAS]
JUDGE.
ig JUDGE.
asb/u/fa188.00
AUTHENTICATED COPY
(A.S. Bhagwat),
Personal Assistant to
the Honourable Judge.
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