Bombay High Court
Jafarali Mithabhai Hirani vs The State Of Maharashtra on 24 February, 2009
Author: K.K. Tated
Bench: P.V. Hardas, K.K. Tated
(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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1
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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2
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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4
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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6
.... 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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7
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.) ::: Downloaded on - 09/06/2013 14:22:15 ::: 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 9 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, ::: Downloaded on - 09/06/2013 14:22:15 ::: 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 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, ::: Downloaded on - 09/06/2013 14:22:15 ::: 14 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 15 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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16
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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 17 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 18 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 19 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.
::: Downloaded on - 09/06/2013 14:22:15 ::: 20They 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 21 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 22 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.
::: Downloaded on - 09/06/2013 14:22:15 ::: 23Para 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 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 under Appeal 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 the material 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 be treated 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 Acquisition Officer 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 its reasoning, or correct its errors or affirm, modify or reverse the conclusions reached by the Land Acquisition Officer, as if it were an appellate Court.::: Downloaded on - 09/06/2013 14:22:15 ::: 24
(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 Acquisition Act the (date Land of notifications under Ss. 6 and 9 are 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 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).
::: 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 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
ig (ii) proximity
situation angle
from
(11) Having identified the
instances 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 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 26 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 acquisition land under
7. 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 depth
4. Lower level requiring the depressed portion to be filled up
5. 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 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 enterpreneur.
the hazards
The factor can be
of
discounted 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 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."
::: 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 13th
July, 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 :::
31
except 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 near developed 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 ::: 32 in 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 ::: Downloaded on - 09/06/2013 14:22:15 ::: 33 the 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 about 30% deductions are found to be just and proper but at the same time deductions could 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 dated 3/11/2004 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 much larger 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 ::: 34 fair market value of the acquired land can be fixed at Rs.69 per sq. mt. (rounder off from Rs.68.75). This market value is very close to the very price paid for plots of land sold by Goa Housing Board, after developing the property, deducting the cost of 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 awarded to 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 some element 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 ::: 35 taken into consideration by the Court while determining the market value of the land in question but it is necessary to examine that the acquisition was of a huge land and these sale instances would not be a fair indicator of the price relating to such land. 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 of cases.
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 mandatory to 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 of the land for by-products like molasses, etc.; the Court reduced the deduction from 30% 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 case of 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 for submerging 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 ::: 36
Keeping in mind this fact are not even disputed before, they would have to be considered as relevant consideration in applying 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 deduced from 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 this Court to grant to the claimants enhanced compensation or whatever marginal increase found 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 ::: 37 and the amount of development which is required to be carried out and thus there cannot be any fixed amount of deduction towards development charges. The area acquired in this case is comparatively large than the area acquired in the previous 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 the land acquired in L.A.C. No.77/86, it appears that the subject land was more sloppy 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 out to Rs.78.00 per sq. meter. Therefore, we fix the fair market of the acquired land in this 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 ::: 38 Commissioner 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 ::: 39 Apex 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 ::: 40 of 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 Exhibit 107 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 ::: 41 that 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 the conclusion 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 ::: 43 average 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 under Section 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 ::: 44 referred to in this sub section any period or periods during which the proceedings for the acquisition of the land were held up on account 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 amount
for 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 ::: 45 is 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.
2951The 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 ::: 46 the 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 be awarded 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 the purpose 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 only available terminal is the date of the award. The High Court, therefore, was in no 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 result that 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 ::: 47 Schemes vs. M.A. Jabbar (1995) (2) SCC
142) and that it has not been correctly laid down in Assistant Commissioner, Gadag sub 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 is right 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 ::: 48 period 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 of the 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 date of taking possession of the land whichever is earlier. Admittedly, possession having already been taken on 15-2-1965, before publication of the notification Section 4 (1) on 6-3-1980, the award of under additional 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 from 15-2-1965, i.e. from the date of taking possession, though apparently earlier in point 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 was prospective 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 ::: Downloaded on - 09/06/2013 14:22:16 ::: 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 ::: Downloaded on - 09/06/2013 14:22:16 ::: 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.
::: Downloaded on - 09/06/2013 14:22:16 ::: 5132. 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) ::: Downloaded on - 09/06/2013 14:22:16 ::: 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 ::: Downloaded on - 09/06/2013 14:22:16 ::: 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.::: Downloaded on - 09/06/2013 14:22:16 ::: 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.
::: Downloaded on - 09/06/2013 14:22:16 :::