Bombay High Court
State Of Maharashtra vs Bhausaheb Dadasaheb Misal (Deceased) ... on 14 February, 1995
Equivalent citations: (1995)97BOMLR500
JUDGMENT M.L. Pendse, J.
1. The State Government has preferred this appeal to challenge legality of judgment dated October 30, 1986, recorded by the Additional District Judge, Raigad in Land Acquisition Reference No. 39 of 1986. The facts which gave rise to passing of this judgment are as follows :-
The Respondents were the owners of land bearing Survey No. 16, Hissa No. 2, admeasuring 60,8 Ares, situated at village Bhisegaon In Karjat Taluka of Raigad District. On June 8, 1978, the State Government published Notification under Section 4 of the Land Acquisition Act to the effect that the land in dispute along with certain other lands were likely to be needed for a public purpose of proposed III Railway Line between Karjat and Lonawala for South-East Ghat Line and for construction of Railway staff quarters. The Land Acquisition Officer commenced proceedings after publication of Notification under Section 6 of the Act. The Respondents lodged claim for compensation alleging that the land acquired though used for the purpose of agriculture had non-agricultural potentiality taking into consideration the location and the situation of the land. The Land Acquisition Officer declared the Award on October 26, 1981, holding that taking into consideration the fact that the land was an agricultural land and had also non-agricultural potentiality in distant future and in the vicinity of the Railway Station, the proper compensation payable would be Rs. 30,000/- per hectare. On the strength of this finding, the Land Acquisition Officer declared compensation of Rs. 18.240/- towards the value of the land, Rs. 800/- as value of the crop standing on the land at the time of taking possession and Rs. 2,736/- as solatium at the rate of 15%. The interest is awarded from February 28, 1978 to the date of the award and the interest amount came to Rs. 2,830.90. Thus, the total compensation payable under the award was Rs. 24,806.90.
2. The Respondents sought Reference under Section 18 of the Land Acquisition Act claiming that the compensation determined by the Land Acquisition Officer in respect of the value of the land was inadequate. The Respondents claimed that the acquired land is situated adjacent to Railway Line and there has been considerable building activity in village Bhisegaon which falls within the limits of Grampanchayat of Karjat. The Respondents claimed that the land in the village is considered ideal for housing purpose by the people working in Bombay and number of new residential houses and other constructions have come up. The Respondents also claimed that the acquired land has facility of electricity supply and water supply. The Respondents claimed that the land should be valued at Rs. 15/- per sq.mtr. for determining compensation payable. In support of the claim, the Respondents examined Bhagwan Karode, who is the owner of agricultural land growing paddy in the periphery of Karjat Group Grampanchayat. Respondent No. 2 Vilas also entered the witness box and examined Avinash Wagale, an Architect and Valuer. The Valuer submitted a report (Exh.23) and the report is based on four sale instances which are of developed plots of an area admeasuring between 523 sq.mtrs. and 566 sq.mtrs. The trial Judge relying upon one of the sale instances where the developed plot was sold at the rate of Rs. 25.78 per sq.mtr., came to the conclusion that the market value of the acquired land should be determined with reference to the prevailing rate of Rs. 25/- per sq.mtr. The trial Judge then deducted l/3rd of the price to make allowance for development cost and held Rs. 16.67 per sq.mtr. should be the rate for awarding compensation. The trial Judge then reduced the compensation at the rate of Rs. 13 per sq.mtr. on the basis that the acquired property is a large tract of land compared to the area of developed plots on which reliance was placed by the valuer. On the strength of this finding, the trial Judge awarded compensation of Rs. 79.040/- for the land acquired and determined solatium at the rate of 30% on the said amount. The Trial Judge also granted compensation under Section 23(1-A) of the Act and interest under Section 28 of the Act and thus determined the net enhanced compensation payable at Rs. 1,16,424.15. Feeling aggrieved by the decision, State Government has come in appeal.
3. Mr. Surana, learned A.G.P. submitted that the trial Judge has relied on totally wrong principle to determine the compensation and has arbitrarily increased the amount without any basis. The learned Counsel submitted that the trial Judge proceeded on the basis that the agricultural land has building potentiality and then erroneously applied plotting system without proper application and arrived at a figure which is unsustainable. Mr. Surana also contended that the trial Judge has committed an error in awarding compensation under Section 23(1-A) of the Act. We find considerable merit in the submissions urged by the learned A.G.P. The acquired land is situated at village boundary of village Bhisegaon and village Bhisegaon is adjacent to the boundry of village Karjat and village Mudre (Budruk). The Lands in these three villages are within the jurisdiction of Karjat Grampanchayat and the area of these three villages is known as Karjat Town. Karjat Town enjoys all the important amenities i.e. Railway station. Schools, market, S.T. Stand, Hospital etc. and these facilities are situated within a distance of 400 meters i.e. about 15 minutes walking distance from the land under acquisition. The land under acquisition is a plain land situated on high level and the cost of the development is negligible. Water and electricity is supplied to the Railway Station and the buildings situated in the vicinity of the acquired land. It is not in dispute that the land was used for agricultural purpose on the date of notification under Section 4 of the Act. The Land Acquisition Officer noted that the land has non-agricultural potentiality because there is a round the clock linkage to the Bombay and Pune Cities through railway and road. Respondent No. 2 deposed that the acquired land is situated just abutting the land of Bhagwan Karode and the testimony of Bhagwan Karode indicates that the land is not far away from Karjat Railway Station. Karjat Railway Station is at a distance of about two hours run by Railway from Victoria Terminus and further two hours run from Karjat enables the passengers to reach Pune City. Bhagwan referred to sale deeds Exhs. 17 to 21 and on which Avinash Wagale, Architect and valuer has relied to submit a report,
4. Exhs. 17 to 21 are sale deeds dated January 21, 1979, March 25, 1976 October 15, 1977, January, 4, 1979 and August 16, 1979 respectively. The area sold under these sale deeds admeasures 423, 566, 484, 505 and 566 sq.mtrs. respectively. The rates paid under these sale deeds are Rs. 14.18. Rs. 17,66, Rs. 25.77, Rs. 19.76 and Rs. 17.66 respectively. The perusal of the sale deeds indicates that the lands sold are small pieces of land and which are developed plots for construction of residential buildings, Avinash Wagale relied upon these sale deeds in his report to claim that the compensation should be paid at the rate of Rs. 15/- per sq.mtr. Avinash Wagale admitted in the witness box that he visited the site of the acquired land for the first time in year 1986 and the report of Wagale proceeds on the condition noticed in year 1986. This obviously is an erroneous method of submitting report. The Valuer must indicate the prices available of the lands in the vicinity on the date of notification under Section 4 of the Act, and not with reference to the date on which the Valuer visited the site. It hardly requires to be stated that Section 4 notification was published in June, 1978 and it was futile to refer to the condition prevailing in year 1986 for determination of market price of the acquired land. The same error was committed by the trial Judge who visited the site at the time of hearing of Reference in year 1986 and felt that the land was valuable. Mr. Surana submitted that there is no evidence on record to indicate as to where these lands covered by Exhs. 17 to 21 are situated and what is the rate of development. The submission is correct because the claimants did not lead any evidence to indicate where these developed plots were situated. The claimants also did not lead evidence as to what is the rate of development in the locality. The trial Court overlooked that the area under acquisition is 60.8 Acres and the land was used for the purpose of agriculture. The trial Judge was clearly in error in holding that the maximum price of Rs. 25/- per sq.mtr. paid for small plot of 484 sq.mtrs. should be considered as the prevailing market price for determining the compensation of the acquired land. The trial Judge overlooked that the sale deed providing for the rate of Rs. 25/- per sq.mtr. is of October 1977 while the latter two sale deeds of January 1979 and August 1979 indicate the price of Rs. 19.79 and Rs. 17.66 respectively, and, therefore, it was erroneous to assume that even the price of the developed plots is in the vicinity of Rs. 25/- per sq.mtr. at the time of notification under Section 4 of the Act. It also cannot be overlooked that the prices of the agricultural lands with a building potentiality cannot be determined without taking into consideration the area which is required to be excluded for internal roads etc. at the time of developing the property. The normal rule of excluding 1 /3rd area has to be applied in case there is no evidence as to what area would be required to be excluded from consideration while developing the land. The trial Judge curiously instead of excluding l/3rd land, proceeded to deduct l/3rd of the price of Rs. 25. The error committed by the trial Judge is obvious from the contents of para 12 of the judgment. The trial Judge also overlooked that apart from spending considerable amount for developing the land and for advertising the plots for sale, the plots will not be sold over night and some deduction is required to be made by taking into consideration the time required for the disposal of the plots. The trial Judge without applying this well settled principle, arbitrarily felt that Rs. 13/- per sq.mtr. should be adequate compensation. The claimants did not lead any evidence as to what is the demand for developed plots in this area and what time would be required for the disposal of the plots after developing the land. In these circumstances, the trial Judge was clearly in error in determining the compensation payable at the rate of Rs. 13/- per sq.mtr. Mr. Hegde, learned Counsel appearing on behalf of the Respondents submitted that the land under acquisition is situated adjacent to the Railway track and the part of the land is used for Railway Quarters. The learned Counsel did not dispute that it required 10 minutes from the Railway Station to reach the acquired land. Mr. Hegde did not dispute that the evidence on record is not sufficient to establish as to where the lands covered by Exhs. 17 to 21, and which are developed lands, are situated, Mr. Hegde also did not dispute that there is no evidence on record to indicate how much amount will be required to develop an agricultural land after conversion into a non agricultural land. The Valuer also did not depose as to demand for the developed plot in year 1978. Taking all these factors into consideration, we have no hesitation in concluding that the trial Judge applied an erroneous principle to arrive at the conclusion that the compensation payable is at the rate of Rs. 13/- per sq.mtr.
5. Mr. Hegde then submitted that the compensation offered by the Land Acquisition Officer at the rate of Rs, 3/- per sq.mtr. is inadequate even though the land is an agricultural land, because of the potentiality existing on the date of notification. The Learned Counsel submitted that taking into consideration the prices of the agricultural lands and on which the Land Acquisition Officer has relied, the determination of compensation should be more than Rs. 3/- per sq.mtr. We find considerable merit in this submission. The instances of sale deeds of agricultural lands on which reliance was placed, indicate that the rate prevalent in year 1968 was Rs. 20.000/- per hectare for agricultural land in village Bhisegaon. The prices of the agricultural land are also on increase and if 10% increase is granted per year, then the prices of agricultural lands in year 1978 would be Rs. 40.000/- per hectare. Though the evidence on record is not very clear, a judicial notice can be taken that the area around Karjat Railway Station and the Karjat Town has building potentiality. The land is situated hardly at a distance of 10 minutes walk from Karjat Railway Station. The time required for development of the land cannot be too distant. In our judgment, Rs. 10,000/- per hectare can be added while determining the compensation of the acquired land on the basis of building potentiality. The compensation payable, therefore, would be at the rate of Rs. 50.000/- per hectare and which comes to Rs. 5/- per sq.mtr. This amount of compensation would adequately compensate the Respondents.
The grievance of the Appellant that the trial Judge was in error in awarding compensation under Section 23(1-A) of the Act deserves acceptance in view of the decision of the Supreme Court in K.S. Paripoornan v. State of Kerala and Ors. The award in this case was declared on October 26, 1981 and, therefore, the benefit of Section 23(1-A) is not available. The Respondents would be entitled to solatium at the rate of 30% on the additional compensation payable. The appeal preferred by the State Government is, therefore, required to be partly allowed and the following order is passed:-
The Respondents would be entitled to additional compensation of Rs. 12.160/-, plus solatium at the rate of 30% of Rs. 3,648/-, plus interest of Rs. 19.139/- and thus the total amount payable is Rs. 34,947/-.
6. Before passing operative order, it is necessary to refer to the fact that 2 or 3 appeals arising out of this group and filed by the State Government were placed for admission before the Single Judge and were summarily dismissed. The order of dismissal cannot be disturbed but cannot bind the Division Bench. The appeals were dismissed summarily and without detailed examination of the record and, therefore, we are unable to follow the decision of the Single Judge and uphold the order of the Reference Court.
7. Appeal is accordingly partly allowed and the order dated October 30, 1986, passed by the Additional District Judge, Raigad in Land Acquisition Reference No. 39 of 1986 is set aside and substituted by the above order. The appellant shall be entitled to the proportionate costs.