Bombay High Court
Nitinkumar Chandrakant Vibhute vs The State Of Mah And Ors on 21 February, 2018
Author: A. M. Dhavale
Bench: S. V. Gangapurwala, A. M. Dhavale
1 FA1562.2007
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
FIRST APPEAL NO. 1562 OF 2007
Nitin alias Nitinkumar S/o Chandrakant Vibhute,
Age : 41 years, Occu. Agril.,
R/o. Ausa, Tq. Ausa, Dist. Latur. ... Appellant
VERSUS
1. The State of Maharashtra,
Through the Collector,
District Latur.
2. The Executive Engineer,
Latur Minor Irrigation,
Division, Latur.
3. The Special Land Acqusition Officer,
Swarna Project, Latur. ... Respondents
..........
Shri. R. S. Deshmukh, Advocate for the appellant
Shri. K. N. Lokhande, AGP for respondents No. 1 and 3/State
Shri. S. G. Sangle, Advocate for respondent No. 2
.............
CORAM : S. V. GANGAPURWALA &
A. M. DHAVALE, JJ.
DATE OF RESERVING THE JUDGMENT : 02ND FEBRUARY, 2018
DATE OF PRONOUNCING THE JUDGMENT : 21ST FEBRUARY, 2018
JUDGMENT [ PER A. M. DHAVALE, J.] :
1. Aggrieved by the decision of IIIrd Ad-hoc Additional Sessions
Judge, Latur, in LAR No. 997/99 dt. 05.02.2007, fixing the
compensation amount at the rate of Rs. 3500/- per R. for the
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agricultural land of 2H 0.5R of the appellant acquired by notification
dt. 25.02.1996, the appellant has preferred this appeal. As per
undisputed facts, by notification u/s 6 of Land Acquisition Act,
dt. 25.02.96, land of 2H 0.5R at Survey No. 164, Ausa, belonging to
the appellant was acquired. The possession of the same was taken
earlier on 06.08.1994. The Land Acquisition Officer by Award
dt. 24.08.98 fixed the basic value of the acquired land at
Rs. 1,79,000/- per Hector. The aggrieved claimants preferred
reference claiming compensation at the rate of Rs. 1500/- per sq.
meter. Under the impugned judgment, the price of the land was
enhanced to Rs.3500/- per R. Still feeling aggrieved, the claimant
has preferred this First Appeal claiming its basic compensation at the
rate of Rs. 1500/- per sq. meter.
2. Shri. R. S. Deshmukh, learned advocate for the appellant,
relied on three sale deeds Exh. 29, 30 & 31, the evidence of valuer
and the price granted in another award of adjacent land Survey No.
167 to show that the compensation awarded by the District Judge is
also on lower side. He argued following points.
(i) There is no dispute that the land acquired was in
extended Municipal Limits of Ausa town. It was having
residential potential which was not considered.
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(ii) The similar sale instances Exh. 29 to 31 disclose average
price Rs. 360/- per sq. meter.
(iii) The land acquired was suitable for construction and
situated abutting to Zilla Parishad road and national
highway from two sides. It is in residential, commercial
locality with all facilities available in close vicinity.
(iv) The land was acquired for the object of office and
quarters of Government establishment.
(v) The Award granting compensation of Rs. 500/- to
Rs. 700/- per sq. mtr. of land from Survey No. 167 has
not been assailed by the Government.
(vi) He relied on;
[I] Bhag Singh & Ors. v. Union Territory of Chandigarh
AIR 1993 SC 222
No doubt, a judgment of a Court in a land acquisition case
determining the market value of a land in the vicinity of the
acquired land, even though not inter parties, could be
admitted in evidence either as an instance or one from
which the market value of the acquired land could be
deduced or inferred. There will be no difficulty in accepting
such judgment as one furnishing the basis for determining
the market value of the acquired land under consideration, if
the opposite parties do not genuinely dispute the position
that the judgment relied upon, could be acted as basis for
determination of the market value of the acquired land. (For
consideration of the price given in another award of
adjacent land) [Para 8].
Judgments of the High Court given in a large number of
cases determining the market value of lands in a huge tract
at uniform rates cannot be revised, in our view, solely on the
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basis of claim made on behalf of petitioners that a learned
Judge of the same High Court in a subsequent stray case has
awarded a higher compensation for a piece of land said to
be in the same tract of the acquired lands. If recourse is
taken to such procedure, the market value already
determined in a large number of cases at uniform rates may
go on requiring either enhancement or reduction, whenever
subsequent judgment of the Court in a stray case brings
about a variation in the market value of land concerned. To
say the least, such procedure if is resorted to by Courts in
determination of market value of lands lying in large tracts
based on previous awards or judgments can never reach
finality. Besides, recourse to such procedure could give
ample scope for making of arbitrary and fanciful awards in
land acquisition cases. Hence, we consider it unsafe to act
on a subsequent stray judgment of a High Court in a land
acquisition case to disturb its earlier large number of
judgments, where uniform rate of market value of the
acquired lands in same vicinity are fixed. (It is further held
that, when market value in huge tract has been fixed at
unformed rates, those cannot be changed in view of the
High Court judgment in a stray case granting higher
compensation). [Para 8]
[II] Viluben Jhalejar Contractor v State of Gujarat
AIR 2005 SC 2214.
We have noticed herein before that the purpose for which the
land is acquired must also be taken into consideration. In the
instant case, the lands were acquired because they were to be
submerged under water. The land would not have any potential
value. The development of area where the land was situated had
stopped. On the other hand, the development began on the
other side of the river Suki. (The purpose for acquisition of land
even though the land may not have potential value should be
taken into consideration). [Para 31]
[III] Mahesh Thirthkar v. State of Maharashtra
AIR 2009 SC 2238
Finally, it is pertinent to note that the appellants have correctly
brought out the opinion of this Court in the case of Suresh
Kumar v. Town Improvement Trust (Supra) and Bhag Singh v.
Union of India (Supra). The former case clearly lays down that
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proximity to develop urbanized area needs to be necessarily
considered, while deciding on the compensation to be paid for
acquisition of land, on the basis of evidence available. The
acquired property is situated near Osmanabad Latur Road and
Aurangabd Solapur Highway, and the Respondent has not given
any evidence to rebut this contention. Thus, the High Court has
overlooked the proximity of the acquired property to a
developed area. (The proximity of the acquired land to the
developed area should be taken into consideration). [Para 37]
Further, while this Court clearly cautioned against taking up of
"technical pleas to defeat a just claim to enhanced
compensation" under the Act in Bhag Singh v. Union of India
(supra), the High Court set aside the order of the Reference
Court merely on grounds of minor inconsistencies and
technicalities. It seemed to have disregarded the fact that the
compensation provision of the Act is in the nature of a welfare
stipulation and thus the State government must be just and fair
to those whose land it acquires. It is not just and fair to deprive
the owner of any property without payment of its true market
value, especially when the law provides that the same shall be
paid. (Technical pleas should not be taken into consideration to
defeat a just claim to enhance compensation). [Para 37]
[IV] Sagunthala v Special Tehsildar
AIR 2010 SC 984
When the agricultural land was acquired to be built quarters for
workers of the company, the potential of the land for
construction of residential colony should be considered and
adequate compensation should be granted. [Para 32]
3. Shri. Deshmukh, learned advocate submitted that,
considering all the facts, the market value of the acquired property
should be enhanced to Rs.1500/- per sq.mtr.
4. Per contra, Shri. K. N. Lokhande, learned AGP for the State
submitted that, though the acquired land is near Ausa town, it is not
within the municipal limits and it is also not road facing as claimed
by the claimant. He argued that, as per the evidence on record, the
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land is quite away from the S.T. Stand, hospital, colleges etc in Ausa
and for determining the market value, the situation as on the date of
notification i.e. 25.02.1996 should be taken into consideration. He
pointed out that, there were sufficient sale instances considered by
the Land Acquisition Officer showing very low prices. The three sale
deeds filed by the appellant were of small pieces of land. No person
has been examined to show that the land acquired is having similar
benefits and advantages as per the lands in the Sale Deeds Exh. 29 to
31. He also argued that the evidence of valuer is full of discrepancies
and cannot be taken into consideration. The best method of
determining the market value is as per the sale instances of similarly
situated lands at the same time. Besides, he argued that, the land
acquired is huge land of 2H 0.5R. Its market value cannot be
determined as per the sale instances of small pieces of land. He
relied on following judgments to submit that, there should be 67%
deduction towards development expenses and reserving land for
development.
(i) Spl. LAO v. M. K. Rafiq AIR 2011 SC 3178
Relying on LAO, Chittoor v. Smt. L. Kamalamma (dead) by
LRS & ors. AIR 1998 SC 781, this Court held as under:-
"...when no sales of comparable land was available where large
chunks of land had been sold, even land transactions in respect
of smaller extent of land could be taken note of as indicating the
price that it may fetch in respect of large tracts of land by
making appropriate deductions such as for development of the
land by providing enough space for roads, sewers, drains,
expenses involved in formation of a lay out, lump sum payment
as also the waiting period required for selling the sites that
would be formed." [Para 21]
The High Court made a 50% deduction since the sale instance
Ex. P-5 related to a smaller piece of land. We are of the
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considered view that the said deduction should be increased to
60%, which we find fair, just and reasonable in the
circumstances. (The agricultural land was in the midst of
industrial locality). [Para 27]
(ii) Maj. Gen. Kapil Mehra v. Union of India
2014 AIR SCW 6086
In Haryana State Agricultural Market Board And Anr. vs.
Krishan Kumar And Ors., (2011) 15 SCC 297, it was held as
under:
"10. It is now well settled that if the value of small
developed plots should be the basis, appropriate deductions will
have to be made therefrom towards the area to be used for
roads, drains, and common facilities like park, open space, etc.
Thereafter, further deduction will have to be made towards the
cost of development, that is, the cost of leveling the land, cost of
laying roads and drains, and the cost of drawing electrical,
water and sewer lines." [Para 33]
Rule of one third deduction towards development appears to be
the general rule. But so far as Delhi Development Authority is
concerned, or similar statutory authorities, where well planned
layouts are put in place, larger land area may be utilized for
forming layout, roads, parks and other common amenities.
Percentage of deduction for development of land to be made in
DDA or similar statutory authorities with reference to various
types of layout was succinctly considered by this Court in Lal
Chand vs. Union of India & Anr. (2009) 15 SCC 769 and
observing that the deduction towards the development range
from 20% to 75% of the price of the plots. (If value of small
developed plots should be the basis, appropriate deduction will
have to be made therefrom towards the space to be left and cost
of development upto 60 to 67%. [Para 40]
(iii). Chandrashekhar v Land Acquisition Officer
AIR 2012 SC 446.
Based on the precedents on the issue referred to above it is seen,
that as the legal proposition on the point crystallized, this Court
divided the quantum of deductions (to be made from the market
value determined on the basis of the developed exemplar
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transaction) on account of development into two components.
Firstly, space/area which would have to be left out, for
providing indispensable amenities like formation of roads and
adjoining pavements, laying of sewers and rain/flood water
drains, overhead water tanks and water lines, water and effluent
treatment plants, electricity sub-stations, electricity lines and
street lights, telecommunication towers etc. Besides the
aforesaid, land has also to be kept apart for parks, gardens and
playgrounds. Additionally, development includes provision of
civic amenities like educational institutions, dispensaries and
hospitals, police stations, petrol pumps etc. This "first
component", may conveniently be referred to as deductions for
keeping aside area/space for providing developmental
infrastructure.
Secondly, deduction has to be made for the
expenditure/expense which is likely to be incurred in providing
and raising the infrastructure and civic amenities referred to
above, including costs for levelling hillocks and filling up low
lying lands and ditches, plotting out smaller plots and the like.
This "second component" may conveniently be referred to as
deductions for developmental expenditure.
(In this case, the acquisition proposed was of 144 acres of land
and comparable sale instance was of small piece of 2400 sq.ft.
The said transaction took place one year and seven months after
the preliminary notification. The Apex Court approved 55%
deduction towards development, 10% deduction towards
de-escalation and 5% on account of waiting period. Total 70%).
[Para 16]
5. The points for our consideration with our findings thereon
are as follows :
Sr. No. Points Findings
1 Whether the value of acquired land In the negative. True
fixed by the referral court at market value fixed at
Rs.3500/- per R is true market Rs. 120/- per sq.mtr.
value? If not what should be the
market value.
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2 What order? The appeal is partly
allowed as per final
order.
REASONS
6. This appeal is contested only on the point of quantum of
market value to be fixed. The State has not produced any certified
copies of any sale instances quoted in the award passed by Land
Acquisition Officer. The contents of the award therefore cannot be
considered.
7. The appellant has produced three sale instances Exh. 29,
30 and 31 as follows:
Sr. Survey Particulars Area Rate Exh.
No. No. Price
1 166 Sale Deed 1600 Sq.ft. [Rs. 25/- sq.ft. i.e. 29
dt. 04/01/95 Rs. 40,000/- Rs.287/- per sq.mtr.]
2 185(D) Sale Deed 1600 Sq.ft. [Rs.34.38 per sq.ft. 30
dt. 16/11/95 Rs.55,000/- i.e. Rs. 370.00
Sq.mtr.]
3 168 Sale Deed 2000 Sq.ft. [Rs. 30.00 Sq.ft. i.e. 31
dt. 04.03.96 Rs.60,000/- 323.00 Sq.mtr.]
8. Mr Deshmukh has also relied on award of land of 9R from
Block No. 167 dt. 07.12.99 wherein the price awarded is Rs. 500/-
and Rs. 700/- per sq.mtr.
9. We have considered the valuer's report. In the first place, it
is not based on the sale instances of the relevant locality and relevant
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period. Determining market value on the basis of sale instances of
the relevant locality and the relevant period is accepted as a best
mode of determining market value. Besides, his report showing
average value at Rs. 360/- per sq.mtr. is incorrect. The three sale
deeds Exh. 29, 30 & 31 disclose average price of Rs. 326.00 per
sq.mtr. He has deducted only 30% towards internal roads, open
spaces and only 10% for development cause, which is contrary to
supreme court judgment and, therefore, the valuer's report cannot be
taken into consideration.
10. As far as the award of the acquired land from Block No.
167 is concerned, it is dt. 07.12.99 Exh. 35. It is after a period of 3
years and 10 months. Besides it is for a small piece of land of 9R.
The sale is not a comparable sale instance and cannot be taken into
consideration.
11. The sale instance at Exh. 29 is of land Survey No. 185,
which is in the heart of the city. It is not a comparable sale instance.
Besides, it is two years prior to the notification dt. 25.02.96.
12. The sale deed Exh. 30 is dt. 04.01.95, which is about a year
and two months prior to the date of notification. This land as per the
map produced is situated by the side of a college and within
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municipal limits and at some distance from the acquired land. It's
location near the college is advantageous for fetching higher price.
13. We find the sale deed Exh. 31 of land of 2000 sq.ft. from
Survey No. 168 as comparable sale instance though it is executed on
04.03.96 i.e. after the date of notification. The period is of only 9
days and there is no bar for taking into consideration the subsequent
sale instances particularly in the present case where the time gap is of
only 9 days. As per this sale deed, the land acquired was from Survey
No. 168, which is within the municipal limits and a developed land.
It must be having all municipal facilities.
14. We agree that the present land acquired was having
residential potential, which was acquired for construction of office
premises and quarters and this fact is necessary to be considered.
However, it is very undeveloped land. It was not yet included in the
municipal limits and therefore was not having amenities provided by
the Municipality. There was wait period for development. Besides
substantial portion of the said land would be required to be retained
for development like roads, sewerages, drains, leaving open spaces
and for providing space for pipelines, electric poles and transformer.
Besides, substantial amount would be required for development of
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said agriculture land. The land at Survey No. 164 is bounded by one
ZP road and state highway from two sides but the plot acquired was
not facing the road. Besides, it is at some distance from the
commercial complexes, office premises, ST stand and hospital etc. of
Ausa town.
15. Taking into consideration all these facts, relying upon
Chandrashekhar v. LAO (Supra) and Maj. Gen. Kapil Mehra
(supra), we find that this is a fit case for deduction of around 60 to
65%. Taking into consideration this deduction, we fix the market
value of the land at Rs. 120.00 sq.mtr [Rs. 12,000/- per R] i.e. Rs.
4,80,000/- per acre.
16. The referral court discussed all the rulings but not applied
them properly while fixing the market value. In fact, initially it fixed
market value at Rs. 1500/- per R which was lower than the value
fixed by LAO. Therefore, the same is not sustainable. the demand of
the appellant for market value at the rate of Rs. 1500/- per sq.mtr. is
extremely excessive and exorbitant and it is contrary to the
documents produced by appellant himself.
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17. In the result, we hold that, the appeal deserves to be partly
allowed. Hence the order.
ORDER
(i) The appeal is partly allowed.
(ii) The market value of the acquired land at Survey No. 164, Adm. 2H 0.5R is fixed at Rs. 12,000/- per R. i.e. Rs. 4,80,000/- per acre.
(iii) The appellant shall be entitled for enhancement in consequential benefits of 30% solatium, 3rd component of 12% and interest as awarded by the referral Judge on the enhanced market price with deduction of the amount already paid.
(iv) Decree shall be drawn up accordingly.
[ A. M. DHAVALE ] [ S. V. GANGAPURWALA ]
JUDGE JUDGE
Punde
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