Bombay High Court
State Of Mah.Thr.Spl.Land Acq.Officer vs Dr.Purushottam Dattulal Paldiwal And ... on 21 November, 2015
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
First Appeal No.173 of 2002,
First Appeal No.240 of 2003
And
First Appeal No.230 of 2006
First Appeal No.173 of 2002
Dr. Purushottam Dattulal Paldiwal,
R/o Paldiwal Hospital,
Giripeth, Amravati Road,
Nagpur-440 010. ig ... Appellant/
Ori. Claimant
Versus
1. State of Maharashtra,
through Special Land Acquisition
Officer, and Sub-Divisional Officer,
Khamgaon, Dist. Buldhana.
2. Union of India,
through Telecom District Engineer,
Buldhana, Tank Road,
Khamgaon, Dist. Buldhana. ... Respondents/
Ori. Respondents on
R.A.
Shri R.M. Bhangde, Advocate for Appellant.
Shri. N.S. Khubalkar, Assistant Government Pleader for Respondent
No.1.
First Appeal No.240 of 2003
State of Maharashtra,
through Special Land Acquisition
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Officer, Sub-Divisional Officer,
Khamgaon, Distt. Buldhana. ... Appellant/
Ori. Respondent on
R.A.
Versus
1. Dr. Purushottam Dattulal Paldiwal,
R/o Paldiwal Hospital, Giripeth,
Amravati Road, Nagpur.
2. Union of India, through Telecom
District Engineer, Buldhana,
Tank Road, Khamgaon,
Distt. Buldhana. ig ... Respondents/
Ori. Petitioner on
R.A.
Ms Tajwar Khan, Assistant Government Pleader for Appellant.
Shri R.M. Bhangde, Advocate for Respondent No.1.
First Appeal No.230 of 2006
Bharat Sanchar Nigam Ltd.,
through its Sub-Divisional Officer (Legal),
Office of General Manager, Telecom,
Buldana at Khamgaon,
Tq. Khamgaon, District Buldana. ... Appellant
Versus
1. State of Maharashtra,
through Secretary,
Government of Maharashtra,
Department of Revenue,
Mantralaya, Mumbai-400 032.
2. Dr. Purushottam Dattulal Paldiwal,
Paldiwal Hospital, Giripeth,
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Nagpur. ... Respondents
Smt. A.R. Taywade, Assistant Government Pleader for Respondent
No.1.
Shri R.M. Bhangde, Advocate for Respondent No.2.
Coram : R.K. Deshpande, J.
Date of Reserving the Judgment : 17-11-2015.
Date of Pronouncing the Judgment : 21-11-2015.
Judgment :
1. All these appeals are concerned with the compensation in respect for release of 8,000 sq.mtrs. of land (which is equivalent to approprimately 4 acres) out of Survey No.291/3, situated at Shegaon, from acquisition, under Section 48 of the Land Acquisition Act, which shall hereinafter be called as "the land in question". The land in question was reserved in the draft development plan sanctioned under sub-section (1) of Section 31 of the Maharashtra Regional & Town Planning Act, 1966 by issuing the notification on 31-8-1976 in the official gazette for the purposes of Telecom Exchange Building with an expectation that it shall be acquired within a period of ten years therefrom, expiring on 31-8-1986.
Accordingly, a notification under sub-section (4) of Section 126 of ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 4 fa173.02+.odt the Maharashtra Regional & Town Planning Act for acquisition of the land in question was issued on 6-7-1986. Though the draft award was prepared on 11-5-1987, by an order dated 28-7-1988 issued under Section 48 of the Land Acquisition Act, 1896, the proceedings for acquisition of land in question were withdrawn.
2. The owner of the land in question was granted compensation under Section 48 of the Land Acquisition Act by the Sub-Divisional Officer under his award dated 31-1-1990, and it was to the tune of Rs.4,69,206 under the different heads, which are specified below :
I Total loss of income on the land. Rs.3,62,751/-
II Taxi Charges. Rs. 19,840/-
B Loss of income of surgical practice. Rs. 32,565/-
C Valuers and Architect Fees. Rs. 23,500/-
D Legal Advisor Fees. Rs. 19,800/-
E Measurement Fees. Rs. 500/-
F Expenses towards Xerox, Typing, Rs. 1,250/-
Photo, etc.
Rs.4,60,206/-
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3. The owner of the land in question preferred a reference under Section 18 of the Land Acquisition Act for enhancement of the compensation. The Reference Court granted such enhancement in Land Acquisition Case No.17 of 1990 by its judgment and order dated 7-1-2002. The compensation was enhanced to Rs.5,97,249/-, payable along with interest at the rate of 9% per annum from the date of the award till its realization. The owner has preferred First Appeal No.173 of 2002 seeking further enhancement of compensation, whereas the State Government has preferred First Appeal No.240 of 2003, and the acquiring body, i.e. Bharat Sanchar Nigam Limited, has preferred First Appeal No.230 of 2006 challenging the enhancement of compensation granted by the Reference Court. All these appeals are tagged together and heard finally.
4. Relying upon the provisions of sub-sections (2) and (3) of Section 48 read with sub-sections (1-A) and (2) of Section 23 of the Land Acquisition Act, the only points urged by Shri Bhangde, the learned counsel appearing for the claimant are that - (i) the Reference Court has committed an error in not awarding the solatium, as specified in sub-section (2) of Section 23 of the said Act, ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 6 fa173.02+.odt at the rate of 30% on the compensation so fixed, (ii) the Reference Court has committed an error in refusing to grant the compensation for severance of the land in question, and (iii) though the Reference Court has granted the compensation for the period from 31-8-1976 to 6-7-1986, it has erroneously reduced the rate of damage from 12% to 10% per annum, though it was granted by the Land Acquisition Officer in terms of sub-section (1-A) of Section 23 of the Land Acquisition Act. Shri Bhangde, the learned counsel, has relied upon the decision of the learned Single Judge of Punjab & Haryana High Court in the case of Smt. Bindu Garg v. State of Haryana, reported in 1999(1) LAC 86 (P&H), and the decision of the Apex Court in the case of Narain Das Jain, through L.Rs. v. Agra Nagar Mahapalika, Agra, reported in (1991) 4 SCC 212.
5. The learned Assistant Government Pleaders appearing for the State in all these appeals have refuted the contentions raised by the learned counsel for the claimant and urged that the Reference Court has committed an error in awarding the compensation for the period from 31-8-1976 to 6-7-1986. They have further urged that under sub-section (2) of Section 48 of the Land Acquisition Act, the compensation due for the damage suffered by the claimant, is to be ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 7 fa173.02+.odt determined in consequence of the notice or of any proceedings.
According to them, "the notice" or "any proceedings" referred to therein pertain to the notice under Section 6 of the Land Acquisition Act, which is equivalent to the notice under sub-section (2) of Section 126 of the Maharashtra Regional & Town Planning Act.
According to them, the Land Acquisition Officer had rightly awarded the compensation for the period from 6-7-1986 and ignored the period prior to it commencing from 31-8-1976. It is also urged that in the absence of there being any evidence of the actual damage suffered by the claimant, the Reference Court was not correct in enhancing the compensation, as awarded.
6. Undisputedly, in the present case, the land in question was reserved in the notification issued on 31-8-1976 under sub-section (1) of Section 31 of the Maharashtra Regional & Town Planning Act in the official gazette for the purposes of Telecom Exchange Building, and there cannot be any dispute that such notification is equivalent to the notification under Section 4 of the Land Acquisition Act. The notification under sub-section (4) of Section 126 of the Maharashtra Regional & Town Planning Act, which is equivalent to the notification under Section 6 of the Land ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 8 fa173.02+.odt Acquisition Act, was issued in the official gazette in respect of the land in question on 6-7-1986. The possession of the land in question was not taken over, but the draft award was prepared on 11-5-1987.
The proceedings for acquisition of the land in question were withdrawn by an order dated 28-7-1988. The present case is, therefore, not concerned with the payment of compensation for acquisition of the land in question, but it is concerned with the payment of compensation under sub-section (2) of Section 48 of the Land Acquisition Act for withdrawal of acquisition.
7. Section 48 of the Land Acquisition Act is relevant, and it is, therefore, reproduced below :
"48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.--
(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 9 fa173.02+.odt compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."
ig Upon withdrawal of land from acquisition, the Collector has to determine under sub-section (2) of Section 48, the amount of compensation due for the damage suffered by the owner in consequence of the notice or any proceedings thereunder and to pay such amount to the person interested together with all costs reasonably incurred by him in the prosecution of the proceedings under the Act relating to the said land. In terms of sub-section (3), the provisions of Part III of the Land Acquisition Act become applicable so far as may be, to the determination of the compensation payable under Section 48 of the said Act.
8. Section 23 under Part III of the Land Acquisition Act ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 10 fa173.02+.odt shall, therefore, govern the determination of the compensation under sub-section (2) of Section 48 so far as it becomes applicable.
Section 23 of the said Act is, therefore, reproduced below :
"23. Matters to be considered in determining compensation.--(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration--
igfirst, the market value of the land at the date of the publication of the notification under section 4, sub-section (1);
secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;
thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;
fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 11 fa173.02+.odt his other property, movable or immovable, in any other manner, or his earnings;
fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(1-A) 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 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.::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 12
fa173.02+.odt (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of compulsory nature of the acquisition."
The provisions of Section 23 to the extent applicable, become part of sub-section (2) of Section 48 of the Land Acquisition Act, and hence the same are required to be read together for determination of compensation in case of withdrawal of land from acquisition.
9. In determining the amount of compensation to be awarded for the land acquired under the Act, the Court has to take into consideration, in terms of sub-section (1) of Section 23, the market value of the land at the date of the publication of the notification under Section 4, sub-section (1). In terms of sub-section (1-A) of Section 23, in addition to the market value of the land, as provided under sub-section (1), the Court has to in every case award an amount calculated at the rate of 12% per annum on such market value for the period commencing on and from the date of the publication of the notice under Section 4, sub-section (1) in respect of such land to the date of the award of the Collector or to ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 13 fa173.02+.odt the date of taking possession of the land, whichever is earlier. In terms of sub-section (2) of Section 23, in addition to the market value of the land, the Court has to in every case award a sum of 30% on such market value in consideration of compulsory nature of acquisition.
10. In the present case, it is not in dispute that the Land Acquisition Officer has determined the market value of the land in question under sub-section (1) of Section 23 of the Land Acquisition Act at Rs.15,11,466/-. Shri Bhangde, the learned counsel for the claimant, has made a statement, upon a specific question being put to him, that in his appeal he is not pressing the point of determination of the market value of the land in question at Rs.15,11,466/-. The question of challenge to this determination of the market value either at the instance of the acquiring body or at the instance of the State Government, also does not arise, nor in fact any such challenge is raised.
11. In the background of the aforesaid undisputed factual position, the provisions of law and the rival contentions, the following points fall for determination :
::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 14fa173.02+.odt Sr.No. Points Findings
1. Whether the claimant is entitled No to the amount of solatium at the rate of 30% on the market value of the land in question, determined at Rs.15,11,466/-, in terms of sub-section (2) of Section 23 of the Land Acquisition Act?
2.
Whether the claimant is entitled No.
to the compensation on account
of severance?
3. Whether the claimant is entitled a) Yes. The claimant is to the amount of compensation entitled.
due for the damage suffered by him from 31-8-1976, or whether b) No. The Reference the Reference Court has Court did not commit any committed an error in counting error.
the period for compensation from 31-8-1976 to 6-7-1986?
4. In the light of the provision of Yes. The claimant is sub-section (1-A) of Section 23 entitled to the rate of of the Land Acquisition Act, 12% per annum for whether the Reference Court has damage.
committed an error in reducing the rate of damage from 12% to 10% per annum?
::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 15fa173.02+.odt As to Points No.(1) and (2) :
12. In the decision of the Apex Court in the case of Narain Das Jain, through L.Rs. v. Agra Nagar Mahapalika, Agra, cited supra, relied upon by Shri Bhangde, the learned counsel for the claimant, the concept of solatium has been considered. Paras 6 and 7 of the said decision being relevant, are reproduced below :
"6.
ig Section 23(2) of Land Acquisition Act, as it then was, provided that in addition to the market value of the land, as provided in sub-section (1) of Section 23, the court shall in every case award a sum of rupees fifteen per centum on such market value in consideration of the compulsory nature of acquisition. Solatium, as the word goes, is "money comfort", quantified by the statute, and given as a conciliatory measure for the compulsory acquisition of the land of the citizen, by a welfare State such as ours. The concern for such a citizen was voiced by the Law Commission of India in its Report submitted in 1957 on the Need for Reform in the Land Acquisition by observing as follows:
"We are not also in favour of omitting Section 23(2) so as to exclude solatium of 15 per cent for the compulsory nature of the acquisition. It ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 16 fa173.02+.odt is not enough for a person to get the market value of the land as compensation in order to place himself in a position similar to that which he could have occupied had there been no acquisition, he may have to spend a considerable further amount for putting himself in the same position as before .... As pointed out by Fitzgerald the community has no right to enrich itself by deliberately taking away the property of any of its members in such circumstances without ig providing adequate compensation for it. This principle has been in force in India ever since the Act of 1870. The Select Committee which examined the Bill of 1893 did not think it necessary to omit the provision but on the other hand transferred it to Section 23."
7. The importance of the award of solatium cannot be undermined by any procedural blockades. It follows automatically the market value of the land acquired, as a shadow would to a man. It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. It follows as a matter of course without any impediment. That it falls to be awarded by the court "in every case" leaves no discretion with the court in not awarding it in some cases and awarding in others. Since the award of solatium is in consideration of the compulsory nature of acquisition, it is ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 17 fa173.02+.odt a hanging mandate for the court to award and supply the omission at any stage where the court gets occasion to amend or rectify. This is the spirit of the provision wherever made."
Solatium is a money comfort and given as a conciliatory measure for the compulsory acquisition of the land of the citizen by a welfare State. The Law Commission of India considered that it is not enough for a person to get the market value of the land as compensation in order to place himself in a position similar to that which he could have occupied had there been no acquisition and, therefore, it was thought fit in every case to award solatium in consideration of the compulsory nature of acquisition. This principle is accepted by the Apex Court in the aforesaid judgment and it is held that as a matter of course, without any impediment, the solatium falls to be awarded by the Court in every case, leaving no discretion with the Court in not awarding it in some cases and awarding in others. Thus, the necessary concomitant for awarding solatium is the compulsory nature of acquisition of the land. Solatium is available only in cases where the land has actually been acquired. If the land is released from acquisition, the claimant does not become entitle to solatium, as he is put in a position of "no acquisition". The contention of ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 18 fa173.02+.odt Shri Bhangde that the claimant is entitled to solatium in terms of sub-section (2) of Section 23 is, therefore, rejected.
13. Shri Bhangde, the learned counsel for the claimant, has invited my attention to the map at Exhibit 131 to point out that as a result of acquisition of the land, certain portion of his remaining land became useless, as it was earmarked for approach road to the land in question. In view of withdrawal of land in question from acquisition, the question of severance also does not at all arise. Hence, for the same reasons, the claimant is neither entitled for solatium nor for compensation for severance of the land. The contention is, therefore, rejected.
As to Points No.(3) and (4) :
14. Relying upon the provision of sub-section (2) of Section 48 of the Land Acquisition Act, the learned Assistant Government Pleaders appearing for the State in all these appeals have urged that the "notice" or "any proceedings" referred to therein essentially means the notice under Section 6 of the said Act, which is equivalent to the notice under sub-section (2) of Section 126 of the Maharashtra Regional & Town Planning Act, which, in the present ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 19 fa173.02+.odt case, was issued on 6-7-1986. According to them, the Reference Court has rightly awarded an amount calculated at the rate of 10% per annum on the market value of the land in question for the period commencing from 6-7-1986.
15. The contention, as aforestated, cannot be accepted, for the reason that sub-sections (2) and (3) of Section 48 have to be read along with sub-section (1-A) of Section 23 of the Land Acquisition Act. The provisions cannot be read in isolation. The expression "in consequence of the notice or of any proceedings thereunder"
employed under sub-section (2) of Section 48 will have to be construed as the notice under sub-section (1) of Section 4 of the Land Acquisition Act, and the reference to "any proceedings" shall have to be read as pursuant to the notice under sub-section (1) of Section 4 of the said Act.
16. In the present case, the land in question was for the first time reserved by issuing the notification in the official gazette under sub-section (1) of Section 31 of the Maharashtra Regional & Town Planning Act on 31-8-1976, which is equivalent to the notification under Section 4 of the Land Acquisition Act. In view of this, it ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 20 fa173.02+.odt cannot be said that the Reference Court has committed an error in counting the period from 31-8-1976 for determination of compensation in terms of sub-sections (2) and (3) of Section 48 read with sub-section (1-A) of Section 23 of the Land Acquisition Act.
Sub-section (1-A) of Section 23 mandates that in every case, the Court shall award an amount calculated at the rate of 12% per annum on the market value for the period commending on and from the date of the publication of the notification under Section 4, sub-section (1). The requirement is mandatory and the Reference Court has, therefore, committed an error in reducing the rate from 12% to 10% per annum. In view of such mandate, the argument that in the absence of there being any evidence of the actual damage suffered by the claimant, the Reference Court was not correct in enhancing the compensation awarded by the Land Acquisition Officer, is rejected.
17. The next argument of the learned Assistant Government Pleaders is that in terms of sub-section (2) of Section 48 of the Land Acquisition Act, it is the notice under Section 6 of the said Act, which is equivalent to the notice under sub-section (2) of Section 126 of the Maharashtra Regional & Town Planning Act, ::: Uploaded on - 21/11/2015 ::: Downloaded on - 23/11/2015 23:58:51 ::: 21 fa173.02+.odt which is required to be considered to determine the amount of compensation. If such contention is accepted, then it would go against the interests of the State and the acquiring body. The Land Acquisition Officer as well as the Reference Court have considered the market value of the land in question to have been fixed on the date of issuance of the notification under Section 4 of the Land Acquisition Act, which is equivalent to the notification under sub-
section (1) of Section 31 of the Maharashtra Town & Planning Act.
The price of the land in question would be much more higher on 6-7-1986, i.e. the date of issuance of the notification under Section 6 of the Land Acquisition Act, which is equivalent to the notification under sub-section (2) of Section 126 of the Maharashtra Town & Planning Act. In fact, the claimant has produced on record the evidence to show the price of the land in question existing on 6-7-1986, which is much more higher than Rs.15,11,466/-, determined by the Land Acquisition Officer and the Reference Court as on 31-8-1976. The contention, therefore, does not deserve any consideration.
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18. For the reasons stated above, the following order is passed :
(I) First Appeal No.173 of 2002 is partly allowed, holding that the Reference Court has committed an error in reducing the rate of damage from 12% to 10% per annum. The claimant is held entitled to damage at the rate of 12% per annum. With this modification, First Appeal No.173 of 2002 is disposed of. No costs.
(II) First Appeals No.240 of 2003 and 230 of 2006 filed by the State Government and the acquiring body, i.e. Bharat Sanchar Nigam Limited, are dismissed. No costs.
JUDGE.
Lanjewar.
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