Bombay High Court
The State Of Maharashtra, (Notice To Be ... vs Punja Trambak Lahamage (Since Deceased ... on 27 March, 2008
Equivalent citations: 2008(110)BOM.L.R.1169, 2008 (5) AIR BOM R 588, 2008 A I H C 3743
Author: Swatanter Kumar
Bench: Swatanter Kumar, J.P. Devadhar
JUDGMENT Swatanter Kumar, C.J.
Page 1173
1. By a common judgment and award dated 23rd December, 2005, the learned 2nd Ad-hoc Additional District Judge, Nashik, disposed of 21 land references made under Section 18 of the Land Acquisition Act, 1894, hereinafter referred to as the Act by the Special Land Acquisition Officer (S.L.A.O.). Aggrieved from the enhancement granted by the Court, the State Page 1174 Government has filed the above 21 Appeals. The claimants, upon service, filed 20 cross-objections in those appeals. As all these appeals and cross objections are directed against the same judgment, it would be appropriate to dispose of all these matters by a common judgment.
2. We may notice necessary facts at the very outset. The SLAO issued a notification under Section 4 of the Act on 17th February, 1994 intending to acquire lands from the revenue estate of village Sanjegaon, Tal. Igatpuri, District Nashik, for a public purpose viz. Mukane Dam Project. In furtherance to the above notification, a declaration under Section 6 of the Act was issued on 16th June, 1994, acquiring nearly 265 hectares and 54 ares of land from this revenue estate. The SLAO, after following the prescribed procedure, made and published the Award dated 14th December, 1995 vide which he segregated the land into different categories and depending upon the location and nature of the land awarded compensation at varying rates from a minimum being Rs. 40,000/-per hectare to Rs. 1,10,000/-per hectare.
3. The claimants being dissatisfied from the compensation awarded to them by the Collector filed applications for enhancement of the compensation. These references filed under Section 18 of the Act on 22nd April, 1996 were forwarded to the Court of competent jurisdiction for determination of compensation payable to the claimants in terms of Section 23 of the Act. Parties led evidence, documentary and oral. After taking into consideration the evidence led by the parties, as already noticed, vide award-cum-judgment dated 23rd December, 2005, the Reference Court enhanced the compensation payable to the claimants to Rs. 2,16,924/-per hectare for bagayat, Rs. 1,73,539/-per hectare for jirayat and Rs. 86,770/-per hectare for pot kharaba lands. This compensation was determined by the learned Reference Court with reference to Exhibits-29, 33 and 42, crop statements used for proving that the land was bagayat land, Exhibits-74, 76 and 84, sale instances or agreement to sell of the lands from the revenue estate of village Sanjegaon. Before the Reference Court, the State primarily relied upon Exhibits-48 and 49 which were the judgments of the Court in different Land References including LR No. 588/97 wherein the Court had granted compensation at the rate of Rs. 40,000/-per hectare in the same village. Possession of the land was taken on 1st July, 1994 vide Exhibit-66. It is apparent and not in dispute before us that urgency clause was not invoked by the competent authority in relation to taking over of possession.
4. According to the claimants, with reference to the sale instances proved by them on record, they were entitled to compensation at the rate of Rs. 4,00,000/-per hectare and thus they filed the cross- objections for further enhancement of the compensation granted by the Reference Court in the present appeals. According to the learned Counsel appearing for the State, the compensation awarded to the claimants is excessive, unreasonable and the award of the SLAO is liable to be restored.
5. At the very outset, the learned Counsel appearing for the parties commonly stated that all the evidence led in the present case was also led by the parties before the learned Reference Court in Land Reference No. 191/99. Against that judgment, an appeal was filed by the State being First Appeal No. 1171 of 2007 (State of Maharashtra v. Smt. Fulyabai Kisan Govardhane and Ors.). Page 1175 In that case also, the lands were acquired from the revenue estate of village Sanjegaon and for the same purpose viz. Mukane Dam. The issues were practically covered by that judgment and there the Court had partly allowed the State Appeals. It will be useful to reproduce the reliefs granted in those appeals by this Court to the parties.
Jirayat land:
Compensation payable in terms of Exhibit 42 Rs. 1,15,385/-per hectare plus Rs. 53,846/-( 10 per cent annual increase on this value for the intervening period 4-7-1989 to 2-2-1994) = Rs. 1,69,231/-minus Rs. 42,307/-(25 per cent aggregate deduction for small piece of land). Thus the total comes to Rs. 1,26,924/-per hectare for Jirayat land.
Bagayat land:
Rs. 1,26,924/-(market value of jirayat land) plus Rs. 31,731/-(25 per cent of market value of jirayat land) = Rs. 1,58,655/-. Thus the total market value for bagayat land comes to Rs. 1,58,655/-per hectare.
Pot Kharab land:
Rs. 1,26,924/-(market value of jirayat land) minus Rs. 19,038/-(15% market value of jirayat land) = Rs. 1,07,886/-. Thus, market value of pot kharab land is Rs. 1,07,886/-per hectare.
It is to be noticed that according to the learned Counsel appearing for the claimants, though the judgment of this Court in the case of State v. Smt. Fulyabai (supra) is fully applicable to the present case, still the claimants would be entitled to difference and higher compensation than the one awarded under that judgment for the following reasons.
5.1. The notification under Section 4 of the Act was lastly advertised in the paper on 15th April, 1994, though dated 2nd February, 1994. That being the last date of publication of notification in terms of the provisions of the Act should be treated as the relevant date for determination and payment of compensation to the claimants.
5.2 Despite the fact that there may be practically little evidence led both in these cases, still Exhibit-74, sale deed dated 4th July, 1989 should be treated as the value of the land indicated as on 31st January, 1989, the date on which the parties had agreed to sell the land for given consideration and had paid the earnest money. Registration of the sale deed and completion of the transaction in July, 1989 was a consequence of the agreement between the parties, and thus they would be entitled to increase in compensation for the intervening six months period from January to July, 1989.
5.3 In terms of Section 34 of the Act, the claimants would be entitled to receive statutory rate of interest at the rate of 15 per cent after the lapse of first year from the date of notification till the date of possession i.e. 1st July, 1994. The learned Reference Court has erred in granting claimants only 9 per cent interest for the entire period.
5.4 The lands where the claimants were taking two crops ought to have been treated as bagayat land and consequential deduction, because the lands were treated as jirayat lands by the Reference court, should be Page 1176 reversed and the entire bagayat and jirayat lands should be given common compensation.
5.5 And lastly, the claimants would be entitled to the benefit of Section 23(1A) of the Act for the period commencing from the date of notification till the date of the Award and not till the date of possession i.e. 1st July, 1994.
6. In response to these contentions, the learned Assistant Government Pleader appearing for the State fairly stated that the claimants would be entitled to the benefit claimed by them in terms of Section 34 of the Act at the increased rate (15 per cent per annum) after lapse of first year from the date of notification. Resultantly, there is no need for us to discuss this controversy any further and cross objections filed by the claimants would be liable to succeed to this extent in any case.
7. Coming to the other aspect, the claim raised on behalf of the respondents in the State appeals is that they would be entitled to enhanced compensation because of the intervening period between 31st January, 1989 and 4th July, 1989 i.e. the date of the agreement to sell and the date of registration of the sale deed. This argument is based on the premise that the parties had agreed to sell the land admeasuring 13 ares for Rs. 15,000/-as on the date of agreement to sell i.e. 31st January, 1989 and the sale deed was registered on 4th July, 1989, being Exhibit-74. Computed on the basis that the market value of the land as on January, 1989 is Rs. 1,15,385/-per hectare and the increasing trend in the price of the land as has been shown by the claimants, the value of Rs. 1,15,385/-should be increased to determine the market value of the property as on 4-7-1989. This argument on behalf of the claimants proceeds on a fallacy of fact and law both. It is a settled rule of law that agreement to sell does not pass any title in the property. Agreement to sell is an agreement between the parties which would culminate into a registered sale deed only after the obligations of each of the parties to the agreement is fulfilled by them. Mere fact that under the agreement to sell, a time is given for payment of sale consideration by itself is no evidence on the fact that the value of the property will increase in the meanwhile. It is not even necessary that every agreement to sell results in execution of a registered sale deed. In simple words, the agreement to sell neither creates any title in the property nor is a document by which transfer of the property takes place between a willing seller and a willing buyer.
8. Thus, it is not possible for the Court to accept the contention of the claimants that they are entitled to increase in determination of the fair market value of the land in question for a period of six months, the time gap between the agreement to sell and execution of sale deed. Therefore, we reject this claim.
9. The learned Counsel appearing for the claimants relied upon the judgment of the Supreme Court in the case of State of Haryana v. Ram Sangh , to contend that the agreement to sell could form the basis for determination of fair market value of Page 1177 the land and payment of amount on account of potential value over and above the market value of the land could be computed in that manner. This judgment is primarily for the proposition that registered agreement to sell is inadmissible unless parties are examined, keeping in view the provisions of Sections 74, 76 and 77 of the Indian Evidence Act. The documents are admissible without examination of the parties but still the transactions could be rejected by the Court being sham or mala fide. This is not the question with which are are concerned in the present case and reliance on this judgment is entirely misplaced. Therefore, we reject this claim.
10. Before we proceed to discuss the merits or otherwise of the claim, we may refer to a recent Division Bench judgment of this Court in the case of The State of Maharashtra and Anr. v. Valu Yesu Suryavanshi and Ors. (First Appeal No. 2222 of 2007) where the Court dealt with the question at some length by referring to various judgments of the Courts and came to the following conclusions:
9. Coming to the third argument raised on behalf of the State in regard to grant of benefit to the claimants under Section 23(1A) of the Act, at the very outset we may notice the findings recorded by the Reference Court while granting relief to the claimants.
17. In the case of Gulabrao v. State of Maharashtra 2003 (3) Mh. L.J. 997 Hon'ble Bombay High Court held that a claimant is entitled for 30% solatium on the amount of compensation. In view of these observations, the claimants in these cases will get 30% solatium. The claimants requested for providing additional compensation in terms of component on the Value of the Property from the date of taking possession. The evidence of PW-1 Deoram reveal that the possession of the lands from the claimants was taken on 1/7/1994. The claimants filed possession receipt Exh. 84 to show that the possession of their fields was taken on 1/7/1994. The Government is not coming with any evidence as to when the possession of the property was taken. So, I rely on the possession receipt at Exh. 84 issued by the responsible Officer of the acquiring body and come to the conclusion that then possession of the lands was taken on 1/7/1994. Hon'ble Apex Court, in the case of Siddappa Vasappa Kuri and Anr. v. Special Land Acquisition Officer and Anr. , while interpreting Section 23(1A) of the Land Acquisition Act, held:
It is clear from Section 23(1A) that the starting point for the purposes of calculating the amount of additional compensation to be awarded thereunder, at the rate of 12 per cent 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 Page 1178 taking possession, whichever is earlier. In the present case, the 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. Therefore, where possession of land was taken on 1st June, 1977 and notification under Section 4(1) in relation to the said land was issued thereafter on 8th March, 1991 the owners were entitled to additional compensation under Section 23(1A) from date of Section 4 notification viz. 8th March, 1991 to the date of Award namely 6th Feb. 1992. The owners were not entitled to additional compensation from the date on which possession of land was taken viz. 1st June, 1977 to the date on which, Section 4 notification was issued.
10. The State apparently had not put forward any substantive plea or arguments in support of the contention that the benefit of Section 23(1A) should be given to the claimants from the date of the award and not from the date of possession 1st July, 1994. It can hardly be disputed that in terms of the language of Section 23(1A) of the Act, additional benefit has to be granted to the claimants from the date of notification under Section 4 of the Act till the date of possession or the date of the Award whichever is earlier. Section 23(1A) of the Act reads as under:
23. Matters to be considered in determining compensation:....
(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 cent 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 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.
A bare reading of the above provision shows that the additional benefit is admissible in law and payable to the claimants for the period commencing from the date of publication of notification Section 4 of the Act till possession or date of award whichever is earlier. The most important expression in the provision of Section 23(1A) wherever the additional benefit is to be given till the date of possession is possession. The word possession has been explained differently in different contexts. In the Law Lexicon, 1977 Edition, the word possession defines thus:
Possession referred to in Section 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, Page 1179 lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of Section 14. The word possessed is used in Section 14 in a broad sense and in the context possession means the state of owning or having in one's hands or power. Kotturuswami v. Setra Veeravva .
The word possession in the section cannot possibly be held to mean anything other than lawful possession or possession as owner. The meaning of the word possession cannot be limited to actual possession. The possession of a licensee, lessee or mortgagee from a female owner or the possession of a guardian or trustee or an agent of the female owner would be her possession for purposes of Section 14 Mst. Bakhtawari v. Sadhu Singh 1959 Punj 558, 560.
"Possession" defined (See also Continuous possession, recorded possession) Act 45, 1860, Section 27 : Act 2, 1876, Section 3: Bom Act 2, 1890, Section 3 (o); Bur. Act 4, 1898, Section 4 (8). 1. Physical control, whether actual or in the eyes of law, over property, the condition of holding at one's disposal (Section 66 T.P. Act) 2. the area in one's possession (Section 37 Indian Evidence Act).
"Possession" is a detention or enjoyment of a thing which a man. Holds or exercises by himself or by another, who keeps or exercises it in his name. Possession is said to be in two ways-either actual possession or possession in law.
"Actual possession" is when a man entreth into lands or tenements to him descended, or otherwise.
Possession in law, is when lands or tenements are descended to a man, and he hath not as yet really, actually, and in deed entered into them ; And it is called possession in law because that in the eye and consideration of the law, he is deemed to be in possession, inasmuch as he is liable to every mans action that will sue concerning the same lands or tenements (Termes de la ley, Possession).
11. The Supreme Court on Words and phrases, published by Ashoka Law House, Edition 2004, at page 812, the possession has been described as under: Possession is a polymorphous term, which may have different meaning in different contexts. It is impossible to work out a completely logical and precise definition of possession uniformally applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of possession. Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edition, 1966) caused by the fact that possession is not purely a legal concept. Possession, Page 1180 implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control (See Dias and Hughes, ibid.) According to Pollock and Wright, when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing. While recognizing that possession is not a purely legal concept but also a matter of fact, Salmond (12th Edition, page 52) describes possession, in fact, as a relationship between a person and a thing. According to the learned author the test for determining whether a person is in possession of anything is whether he is in general control of it. The question whether a particular person is or continues to be in possession of an arm (in the context of the Arms Act) is, to a substantial extent, one of fact. This question, often resolves into the issue; whether that person is or continues to be, at the material time, in physical possession or effective control of that term. This issue, in turn, is a mixed issue of fact and law, depending on proof of specific facts or definite circumstances by the prosecution. Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhuna and Ors. (See also Seksaria Cotton Mills Ltd. v. State of Bombay ). The expression possession is a polymorphous term, which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. The word possession means the legal right to possession. Madan Lal and Anr. v. State of H.P. . It is impossible to work out a completely logical and precise definition of possession uniformally applicable to all situations in the context of all statutes. Megh Singh v. State of Punjab .
The word possession has different shades of meaning and it is quite elastic in its connotation. Possession and 'ownership' need not always go together but the minimum requisite element, which has to be satisfied, is custody or control over the goods. Avtar Singh and Ors. v. State of Punjab ( See also Madan Lal v. State of H.P. .
Page 1181
12. The possession is a legal right and it must arise legally. For possession to be accepted in law, the Court should be satisfied that possession has been acquired by the concerned party by due process of law and is not result of an unlawful act. Now let us examine the legislative scheme in relation to taking over of possession by the Government or its agencies under the provisions of the Act. The provisions of the Act contemplate only two methods for acquiring possession in accordance with law. Firstly, the Government acting through the Collector and after issuance of the notification under Section 4 and declaration under Section 6 of the Act is required to serve notice to all interested persons under Section 9(1) of the Act informing that the Government intends to take possession of the land and interested persons may make their claim for compensation in such land to him. The Collector thereupon shall conduct an enquiry as contemplated under Section 11 of the Act and make his award determining the market value of the acquired land. It is only after this procedure is completed that the Collector is entitled to take possession as per the provisions of Section 16 of the Act and then alone the land shall vest absolutely in the Government free from all encumbrances. Secondly, the legislature has vested special powers in the Appropriate Government to direct the Collector to take immediate possession under different circumstances by invoking the urgency clause. The Collector is empowered to take possession for immediate public purpose by serving fifteen days notice even where no award has been made in terms of Section 11 of the Act. The Collector is even empowered to take possession by giving 48 hours notice but for possession in terms of subsections (1) and (2), the statute casts an obligation upon the said authority to pay compensation to the claimant. This compensation could be in relation to damage to any crop, structure, water supply, etc. and in any case before taking possession of the land the Collector, in terms of Section 17(3A)(a) of the Act has to tender payment of 80 per cent of the compensation for such land as estimated by him to persons whose lands are acquired. The law requires that the compensation should be paid to the claimants unless and until the Collector is prevented by circumstances postulated under Section 31 of the Act. Even if that be so, still the Collector would be required to deposit the compensation in the Court as commanded under Section 31 of the Act. In other words, the Government is entitled to take immediate possession of the land but only and upon making payment of 80 per cent of the proposed market value of the land in question. There is no other way by which the Government or any other instrumentality of the Government can take possession of the land under the provisions of the Act. The Legislature has emphasized the need for payment of compensation prior to taking physical possession of the property in either case. The Court cannot ignore the fact that these are cases of compulsory acquisition and compliance to the statutory provisions would be mandatory. The State cannot take benefit of any of the provisions of the statute without satisfying the requirements or conditions precedent to such invocation. This onus is Page 1182 clearly upon the State to show that they have taken the possession of the land in accordance with the provisions of the Act and the term possession is lawful possession. When the Act in no uncertain terms provides the methodology which is to be adopted by the authorities of the State in taking possession then it is mandatory for these authorities to take possession only in accordance with the provisions and no other way. Possession must be taken by a duly authorized person and in accordance with law. There is no necessity for the authorities of the State to create a mechanism of taking possession which is not in conformity with the statutory requirements. The State cannot defend against the provisions of law.
13. In the case of R.L. Jain (D) by Lrs. v. DDA and Ors. the Supreme Court took the view that the possession taken prior to issuance of notification under Section 4(1) of the Act which was a sine qua non for any further proceedings, the claimants would not be entitled to any benefit from the date of possession unless notification under Section 4 of the Act was issued. This being a compulsory acquisition, the State exercises its powers of eminent domain and land is vested in the State only when the provisions of the Act are complied with. In relation to possession, the Supreme Court held as under.... Section 11 provides for making of an award by the Collector of the compensation which should be allowed for the land. Section 16 provide that when the Collector has made an award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances. This provision shows that possession of the land can be taken only after the Collector has made an award under Section 11. Section 11 is in the nature of an exception to Section 16 and it provides that in cases of urgency, whenever he appropriate Government so directs the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1), take possession of any land needed for a public purpose and such land shall thereupon vest absolutely in the Government, free from all encumbrances. The urgency provision contained in Section 17(1) can be invoked and possession can be taken over only after publication of notification under Sections 4(1) and 6 of the Act. Even here in view of subsection (3-A) the Collector has to tender 80 per cent of the estimated amount of compensation to the persons interested/entitled thereto before taking over possession. The scheme of the Act does not contemplated taking over of possession prior to the issuance of notification under Section 4(1) of the Act and if possession is taken prior to the said notification it will be dehors the Act. It is for this reason that both Sections 11(1) and 23(1) enjoin the determination of the market value of the Page 1183 land on the date of publication of notification under Section 4(1) of the Act for the purpose of determining the amount of compensation to be awarded for the land acquired under the Act. These provisions show in unmistakable terms that publication of notification under Section 4(1) is the sine qua non for any proceedings under the Act. Section 34 of the Act, on the basis whereof the appellant laid claim for interest, reads as under:
34. Payment of interest.When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited.
Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.
12. The expression the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited should not be read in isolation divorced from its context. The words such compensation and so taking possession are important and have to be given meaning in the light of other provisions of the Act. Such compensation would mean the compensation determined in accordance with other provisions of the Act, namely, Sections 11 and 15 of the At which by virtue of Section 23(1) mean market value of the land on the date of notification under Section 4(1) and other amounts like statutory sum under Sub-section (1-A) and solatium under Sub-section (2) of Section 23. The heading of Part II of the Act is Acquisition and there is a sub-heading Taking Possession which contains Sections 16 and 17 of the Act. The words so taking possession would therefore mean taking possession in accordance with Section 16 or 17 of the Act. These are the only two sections in the Act which specifically deal with the subject of taking possession of the acquired land. Clearly, the stage for taking possession under the aforesaid provisions would reached only after publication of the notification under Sections 4(1) and 9(1) of the Act. If possession is taken prior to the issuance of the notification under Section 4(1) it would not be in accordance with Section 16 or 17 and will e without any authority of law and consequently cannot be recognized for the purpose of the Act. For parity of reasons the words from the date on which he took possession of the land occurring in Section 28 of the Act would also mean lawful taking of possession in accordance with Section 16 or 17 of the Act. The words so taking possession can Page 1184 under no circumstances mean such dispossession of the owner of the land which has been done prior to publication of notification under Section 4(1) of the Act which is dehors the provisions of the Act.
14. If the authorities plead that possession has been taken by virtue of agreements, then those agreements have to be placed on the Court record. Admittedly when no compensation was paid to the claimants before taking possession either in terms of the Award made by the Collector in terms of Section 11 of the Act or the statutory compensation contemplated under Section 11(2) of the Act, a protection in the nature of a legal right has been provided by the Legislature to the owners of the land that the possession of the lands should be taken in accordance with the prescribed procedure and upon payment of the specified amount. Infringement of either of them is bound to vest the owners with civil consequences. It would have the effect of depriving them of the benefits which are available to them under the scheme of the Act. Such an interpretation or approach would be impermissible.
15. In the present case, no documents have been filed on record to show that the possession was taken by agreement either with the Government or the acquiring body for the benefit of which the land was acquired. Of course, it will still remain to be examined in law, whether such a body would have the right to take possession directly from the owners. It may further be notified that the State has not even care to place on record the kabje pavti (possession receipt). Even in the memorandum of appeal it has not been stated as to how and when the possession was taken. The only document which can be of some help is Exhibit-84 which in terms says that the possession was taken by the Executive Engineer, Nandur Madhyameshwar Project, along with Deputy Divisional 1st Engineer, Mukane Dam Sub-Division No. II on July, 1994. In this document, it is nowhere reflected that the possession has been taken by agreement. In fact, it is clear that the possession was taken without payment of compensation or by any mutual pact between the parties. The claimants, in fact, have claimed compensation and additional benefit from the date of acquisition till the date of the award.
Let us examine the facts of the present case in the light of the above principles. Notification under Section 4 of the Act was issued on 17th February, 1994. The Award was made by the SLAO on 14th December, 1995. According to the respondents, they had taken possession of the land in question as on 1st July, 1994 vide Exhibit-66. Exhibit-66 is a unilateral document and is a document prepared by the respondents. According to this exhibit, the possession of the land had been taken on 1st July, 1994 but admittedly neither any compensation in terms of law (80 per cent) was paid to the claimants nor any agreement was executed between the parties which could reflect that the claimants had offered the possession of their lands without receiving any compensation. The acquisition is an act of the State and in exercise of its powers, the State can take possession of the land but only in accordance with law. If the compensation is neither offered nor paid, the Page 1185 possession by the State may not be unlawful but certainly would not satisfy the basic and legal ingredients of possession contemplated under the provisions of the Act so as to bring an end to the grant of benefit under Section 23(1A) of the Act for any further period. In view of the view taken by us in Valu Yesu Suryavanshi (supra), we accept this claim of the claimants and hold that claimants are entitled to the benefit of Section 23(1A) of the Act with effect from 17th February, 1994 to 14th December,1995 instead of 1st July, 1994.
11. We have already noticed that the entire evidence led in the present case was subject matter of the judgment of this Court where compensation was reduced to some extent. The Reference Court in the present cases has determined the market value of the land with reference to Exhibit-74 but as is clear that no deduction was made on account of smallness of some lands, which are subject matter of sale instances. Same principle adopted by the Court in the case of Smt.Fulyabai (supra) is squarely applicable even to the present cases. Therefore, we see no reason to adopt any other criteria or grant any higher compensation to the claimants than the compensation awarded in those appeals.
12. We have already noticed that the learned Counsel appearing for the parties had very fairly at the very threshold submitted that the judgment of the Division Bench in Fulyabai (supra) squarely covered the issue in the present appeal as well. The learned Reference Court had discussed at some length the evidence produced by the parties and thereafter had categorised the land into three kinds i.e. Bagayat, jirayat and Potkharaba. This classification of land cannot be said to be unjustified and in fact no evidence has been produced by the claimants to justify on record that the findings are not based upon evidence or are otherwise perverse. In fact, in the statement of Dayanand Lahamage (Exhibit-25), he had stated that the claimants were taking crop of paddy, masur, wheat and gram. These lands were irrigated by water from Undohol river while some were cultivated by water from the wells. In his cross-examination, he had denied the suggestion that prior to getting permission from Tahsildar to lift water, fields were not having irrgation facilities. Witness Muktabai Medhane ( Exhibit-72) had proved the agreement to sell and stated that the acquisition of the subject matter of field were at a distance of about half kilometre from the land covered under the sale deed. The award of the Collector is part of the record. That record clearly shows that lands owned by various claimants fall in different categories and the entire land was not similar or identical. It is a settled rule that the land owners must be given the compensation which they deserve, keeping in view the potential, location, fertility and user of the land at the time of acquisition. There is no evidence on record which can persuade the Appellate Court to take a view different than the one which has been taken by the Collector and the Reference Court upon proper appreciation of evidence. The claimants in fact have failed to bring positive documentary or oral evidence on record to show that the entire land is a bagayat and/or jirayat land. The land under acquisition includes all three kinds of lands which have been awarded compensation by the Court in accordance with law. This claim of the Claimants thus is rejected.
Page 1186
13. Lastly we will proceed to discuss the merit or otherwise of the contention raised on behalf of the claimants as recorded in paragraph 5.1 of this judgment. The notification under Section 4 of the Act is 2nd undoubtedly dated February, 1994. This notification has been published in the official gazette of the State of Maharashtra on 17th February, 1994. There is also no dispute to the fact that the substance of Section 4 notification was published in the newspapers on 15th April, 1994. According to the claimants, the relevant date which the reference Court ought to have taken for awarding in terms of Section 23 of the Act while answering reference under Section 18 of the Act should be 15th April, 1994 and not 17th February, 1994. On behalf of the State it is contended that the relevant and pertinent date of Section 4 notification is to be the date on which the notification was published in the official gazette. Therefore, the Court has not fallen in any error of fact or law in awarding compensation by determining the fair market value of the land as on 17th February, 1994. In terms of Section 4 of the Act, Government has to issue a notification whenever it is desirous of acquiring any land for public purpose. Such a notification has to be published in the official gazette. It is obligatory upon the Government to publish such notification in two daily newspapers circulating in that locality, one out of which has to be in the regional language. Lastly, it is required of the Collector to give public notice or substance of such notification at convenient places in the said locality. It is of significance to notice that the Legislature at the end of Sub-section (1) of Section 4 stated as under:
25 the last date of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification On plain examination of the language of Section 4 of the Act, it is clear that the Government/Collector has to publish the notification in the official gazette, publish notification in two newspapers, one in local language and lastly issue public notice to be given at convenience place in the said locality. In other words, these requirements are mandatory in given facts and circumstances of the case. Default in either of them may vitiate and render the acquisition proceedings bad in law. In the case of Nutakki Sesharatanam v. Sub Collector, Land Acquisition, Vijayawada and Ors. , it was held as under.
On the merits, it is clear that the acquisition of the land is bad in law because the substance of the notification under Section 4(1) of the said Act was not published in the locality within forty days of the publication of the notification in the Government Gazette. The time-limit of forty days for such publication in the locality has been made mandatory by Section 4(1) of the said Act as amended by the Andhra Pradesh (Amendment) Act. It is well settled that such non-compliance renders acquisition bad in law.
Prior to and subsequent to the amendment of Section 4 of the Act in the year 1984, compliance to the provisions of Section was held to be mandatory. Page 1187 In fact, it is a condition precedent to the commencement of acquisition proceedings. A Full Bench judgment of Punjab and Haryana High Court held that publication of Section 4 notification in the official gazette must precede public notice of its substance thereof in the locality. Even in the decision reported in Collector (D.M.) v. Raja Ram Jaiswal , the Supreme Court took the view that publication of substance of Section 4(1) notification in the locality is a mandatory requirement which is to be given effect to after publication. It is obligatory upon the authorities to show compliance to all the three requirements of the Section.
14. Even in the case of Urban Improvement Trust, Udaipur v. Bheru Lal and Ors. , the Supreme Court held that publication of notification under Section 4(1) in the official gazette is a condition precedent for acquiring the land. Declaration under Section 6 of the Act must be made within one year from the date of publication of notification under Section 4(1) of the Act. Any publication of notices in the newspaper prior to publication of notification under Section 4(1) is to be ignored for computing the said period. Section 23 of the Act requires the compensation payable on account of market value of the land acquired on the date of publication of the notification under Sub section (1) of Section 4 of the Act. This does not exclude either specifically or by implication any of the three methods indicated in the section. In other words, it is the composite compliance to the provisions of Section 4(1) of the Act which would be the complete stage for taking further proceedings in the acquisition of acquired land. Every irregularity would not vitiate the acquisition proceedings as bad in law but its total non-compliance to the mandatory provisions may adversely affect the acquisition proceedings. Despite the fact that publication in the newspaper as well as display of notices at convenient places in the locality is a mandatory condition but the material date for determining the market value of the land would and should be the date on which the notification is published in the official gazette. For this, two reasons can be stated. One that the sale deeds or transfers executed by any party after publication of the notification in the official gazette is not binding on the State and is inconsequential. In other words, Section 4 puts a kind of embargo upon transfer of the properties which are subject matter of acquisition proceedings. Secondly, publication in the official gazette is accepted in law as notice to all and there is a presumption in favour of the notification and its contents. There would be more than three dates which may be pleaded to be relevant for determination of the market value. Firstly the date of notification, secondly when the notification was published in the official gazette, thirdly the date/s on which the notification was published in two newspapers circulated in the locality and finally the date/s on which Page 1188 the Collector would issue the substance of the notifications by publishing notice at convenient places in the locality. If the arguments advanced on behalf of the claimants is taken to its logical end, there will always be a dispute of fact as to which is the relevant date and whether which date satisfies the prerequisite of compliance to Section 4 of the Act. It is not necessary to deliberate on this issue any further as we are of the considered view that the relevant date as contemplated under Section read with Section 23 of the Act should be the date when the notification is published in the official gazette.
15. Reverting back to the factual matrix of the present case, there is difference of less than two months between the date of notification and publication in the newspaper. The notification was gazetted on 17th February,1994 and was published in the newspaper on 15th April, 1994. Within this short duration it can hardly be argued that there was any noticeable increase in the price of the land. The claimants have led no oral and/or documentary evidence to show that there was rapid increase in the value of the land even during that period. In fact, there is not even an iota of evidence to support such a contention. For this reason, the claim of the claimants will have to be rejected.
16. For the reasons aforestated, we partly allow the State appeals as well as cross-objections to the extent aforereferred. To conclude, the claimants would be entitled to the following reliefs:
(a) The claimants would be entitled to receive compensation for acquisition of their lands in identical terms as granted by this Court in First Appeal No. 1171 of 2007 as more particularly referred to in paragraph No. 5 of this judgment.
(b) The further reliefs claimed by the claimants in the Cross Objections on the premise that notification gazetted and published under Section 4 were on different dates and that the entire lands in question should have been treated as bagayat lands are hereby rejected.
(c) The claimants would be entitled to receive statutory benefit of interest under Section 34 of the Act i.e. 9 per cent for the first year and at the rate of 15 per cent for the remaining period beyond the first year in terms of Section 34 of the Act.
(d) The claimants would be entitled to benefit of Section 23(1A) of the Act from the date of publishing the notification in the Government Gazette under Section 4 of the Act i.e. 17th February, 1994 till the date of award, instead of the date of possession on 1st July, 1994.
17. All the State Appeals and Cross Objections are accordingly disposed of. In view of the disposal of the State Appeals, Civil Applications filed by the State have been rendered infructuous and are accordingly disposed of.