Bombay High Court
Dr. Kamlakar Bhagwantrao Deshpande And ... vs The State Of Maharashtra on 29 March, 1994
Equivalent citations: 1995(1)BOMCR425
JUDGMENT A.D. Mane, J.
1. These two first appeals arise out of the reference under section 18 of the Land Acquisition Act, 1894. The Court below has rejected the claim for enhanced compensation in the references made on the request of the claimants.
2. The lands belonging to the Appellants situated at village Hingangaon Taluka Kallam District Osmanabad were acquired under section 4 notification issued on February 4, 1976. On January 25, 1978 the Special Land Acquisition Officer passed the award granting compensation to the claimants at the rate of Rs. 2,400/- per hectare. None of the claimants accepted the award and on their request reference was made to the Court. It is their contention that they are entitled for the enhanced amount of compensation as the price of similarly situated lands in the vicinity was higher than Rs. 2,400/- per hectare. It has been further contended that the price prevailing on the relevant date of the comparable land was above Rs. 4,000/- per acre.
3. In support of the claim for enhanced compensation the claimants have relied on three sale instances of the years 1969, 1972 and 1975 respectively, in addition to the previous judgment and award in Land Acquisition Reference No. 69 of 1978 in respect of the adjoining land which was also acquired for the same purpose under the same notification. The Court, which disposed of that reference, fixed the market value of that acquired land at the rate of Rs. 4,000/- per acre.
4. The Court below did not accept the evidence adduced by the claimants in support of their claim for enhanced compensation, firstly because the award in Land Acquisition Reference No. 69 of 1978 pertained to the land of a different village and secondly the sale instances, upon which reliance is placed by the claimants, are not of relevant date. They are post-notification sale instances.
5. Mr. D.Y. Lovekar, learned Counsel appearing for the appellant, raised a two-fold contentions. In the first place it has been submitted that the Court below, keeping in view the material evidence adduced in the case, unmistakably held that the acquired land is a fertile land having water facility from the well as well as from the river. The land acquired, therefore, ought to be treated as Bagayat land. Secondly it has been submitted that admittedly there are 27 mango trees which were standing in the acquired land and those mango trees were fruit bearing trees. The valuation arrived at by the Land Acquisition Officer as confirmed by the Court below was grossly inadequate. Keeping in view these contentions, strong reliance is placed on the award in previous Reference No. 69 of 1978. Mr. Lovekar learned Counsel urged that the Court below was not justified in discarding that piece of evidence for determining the market value of the acquired land, inasmuch as, the land covered under that reference was situated in the neighbouring village but in respect of a comparable land.
6. It cannot be disputed that the amount awarded by the Land Acquisition Officer forms an offer and it is for the claimants to adduce relevant and material evidence to establish that the acquired lands are capable of fetching higher market value and the amount awarded by the Land Acquisition Officer was inadequate and he proceeded on a wrong premise or principle. The words "market value" postulate the price of the land prevailing on the date of publication of the notification under section 4(1) of the Land Acquisition Act, 1894 (for short, the Act). The acid test for determining the market value of the land acquired is the price which a willing vendor might reasonably expect to obtain from a willing purchaser which would form the basis to fix the market value. However, for ascertaining the market rate the Court can rely on such transaction which would offer reasonable basis to fix the price. The price in the sale or purchase of the land acquired within the reasonable time from the date of the acquisition of the land would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the acquired land in or about the time of the notification would supply the data to assess the market value. See the Special Tahsildar, Land Acquisition v. A. Mangala Gowri (Smt.), . In ascertaining the market value of the acquired land with reference to either the sale instances or the previous award it is necessary to keep in view that it is paramount object of the courts of facts to subject the evidence to close scrutiny objectively assess the evidence tendered by the parties on proper consideration thereof in correct perspective to arrive at a reasonable market value. The attending facts and circumstances in each case would furnish guidance to arrive at the market value of the acquired land. The neighbourhood lands possessed similar potentialities or same advantangeous features or any advantageous special circumstances available in each case also are to be taken into account. Thus, the object of assessment of the evidence is to arrive at fair and reasonable market value of the land and in that process sometimes trench on the border of guess-work but mechanical assessment has to be achieved. In Periyar Rubbers Ltd. v. State of Kerala, the Supreme Court observed that the Judges are to draw from their experience and the normal human conduct of the parties is bona fide and genuine sale transaction is the guiding star in evaluating the evidence.
7. Mrs. Rasal, learned Assistant Government Pleader, does not dispute that the previous award in the previous case produced at exhibit 21 by the claimants is relevant. On going through the said award it can be said that the price fixed by the Court in respect of the acquired land from the neighbouring village for the same purpose under the same notification to Rs. 4,000/- per acre. Assuming that the sale instances of 1969, 1972 and 1975, upon which reliance is placed by the claimants are post-notification sale instances and cannot be considered for determining the market value of the acquired land, regard must necessarily be had to the price paid for the lands possessing similar advantages to the land in the neighbourhood of the acquired land in or about the time of section 4 notification to assess the market value of the acquired land. The price of Rs. 4,000/- per acre, in my opinion, cannot be said to be either exorbitant or unreasonable. As regards the nature of the acquired land. I have already pointed out that the acquired land was cultivated as a Bagayat land, Undisputedly the land under the previous award was also Bagayat land. Therefore, the land in respect of which the price was fixed at Rs. 4,000/- per acre was most comparable to the acquired land. There is, therefore, no reason why same price should not be fixed in respect of the acquired land at the same rate.
8. It is true that there are 27 mango trees and they are fruit bearing trees. I, however, find that it is not necessary to fix the value of the mango trees when the valuation of the land acquired would include the valuation of the fruit bearing trees. In Koyapathodi M. Ayisha Umma v. State of Kerala, , it has been laid down that where the land with fruit bearing trees standing therein is acquired the Court may either assess the lands with all its advantages as potential value and fix the market value thereof or may multiply the annual net income of trees by appropriate capitalisation of 15 years whichever is higher. In my opinion, the valuation of the acquired land fixed at Rs. 4,000/- per acre would include the valuation of the trees.
9. In conclusion the claimants would be entitled for enhanced amount of compensation by fixing the price of the acquired land at the rate of Rs. 4,000/- per acre.
10. Mr. Lovekar, learned Counsel appearing for the appellants, points out that neither the Special Land Acquisition Officer nor the Court below granted solatium or interest on the amount of compensation. The learned Counsel further urged that the Reference Court has decided the reference on January 25, 1983 and therefore, the ratio laid down by the Supreme Court in Reghubir Singh's, case to extend the provisions of section 23(2-AO) and section 30(2) of the Land Acquisition(Amendment )Act, 1984, is permissible. In that event the claimants would also be entitled for solatium at 30% and interest at 9% and 15% as provided in section 28 of the Act.
11. Mrs.Resal, learned Assistant Government Pleader, does not dispute the fact that no amount of solatium or interest has been awarded in the present case either by the Special Land Acquisition Officer or the Court below. Moveover, in the present case it is not disputed by the learned Assistant Government Pleader that by virtue of the Constitution Bench decision in Reghubir Singh's, case cited supra higher solatium and higher rate of interest could also be given in appeals against awards passed during the transitional period between April 30, 1982 and September 24, 1984, in the acquisition proceedings. In the case of Shree Vijay Cotton and Oil Mills Ltd. v. State of Gujarat, it has been held that:
"Reading section 23 with section 26 of the Act it is clear that the award, which is deemed to be a decree is the sum total of conclusions reached by the courts in determining compensation under section 23 of the Act on appreciation or the evidence between the parties. The costs under sections 28 and 34 are added to the compensation amount to make it a consolidated award. The costs and interest under the Act if not awarded by the lower Court can always be awarded by higher courts in any proceedings under the Act and to any party entitled to the same under the Act... The payments of interest is not dependant on any claim by the person whose land has been acquired. There can be no controversy or any list between the parties regarding payment of interest. When once the provision of section 34 are attracted it is obligatory for the Collector to pay the interest. If he fails to do so the same can be claimed from the Court in proceedings under section 18 of the Act or even from the appellate Court/courts thereafter."
In regard to the solatium in the case of Narain Das Jain (since deceased by L.R.S.) V. Agra Nagar Mahapalika, Agra, the Supreme Court has observed that:
"Solatium, as the word goes, is "money comfort", quantified by the statute, and given as a conciliatory measure for the compulsory acquisition of the land of the citizen by a welfare State as ours. The importance of the award of solatium cannot be undermined by any procedural blockades. It follows automatically the market of the land acquired as a shadow would to a man. It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. It follows as a matter of course without any impediment. That it falls to be awarded by the Court "in every case" leaves no discretion with the Court in not awarding it in some cases and awarding in others. Since the award of solatium is in consideration of the compulsory nature of acquisition, it is a hanging mandate for the Court to award and supply the omission at any stage where the Court gets occasion to amend or rectify this is the spirit of the provision, wherever made."
In regard to the interest the Supreme Court has also an occasion to consider the question of interest which is different from the compensation. In Shree Vijay Coton Mills' case (cited supra) the Supreme Court has observed that.
"The interest to be paid under section 34 and also under section 28 is of different character than the compensation amount under section 23(1) of the Act. Whereas, the interest, if payable under the Act, can be claimed at any stage of the proceedings under the Act, the amount of compensation under section 23(1) which is an award decree under section 26, is subject to the rules of procedure and limitation. The rules of procedure are hand maiden of justice. The procedural hassle cannot come in the way of substantive rights of citizen under the Act."
Therefore, the appellants are also entitled to interest on the amount of compensation from the date of taking over possession of the acquired land.
12. In the end, the appeals must be allowed. The appeals are allowed. The respondent State is directed to pay the enhanced compensation at the rate of Rs. 4.000/- per acre together with 30% solatium and interest in accordance with law for the time being in force with proportionate costs in both the appeals.