Bombay High Court
Uttamrao S/O Santukrao Kulkarni vs The State Of Maharashtra on 16 March, 2009
Author: K.K. Tated
Bench: K.K. Tated
1
FIRST APPEAL NO.507 OF 1994
Date of decision 16th March, 2009.
For approval and signature.
THE HONOURABLE SHRI JUSTICE K.K. TATED.
1. Whether Reporters of Local Papers }
may be allowed to see the judgment? } Yes
2. To be referred to the Reporter or not? } Yes/No
3. Whether Their Lordships wish to see
the fair copy of the judgment? } No
4.
Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India, 1950 or
}
}
} No
any Order made thereunder? }
5. Whether it is to be circulated to the }
Civil Judges? } No
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? }
[ S.U.Tupe ]
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.507 OF 1994
1. Uttamrao s/o Santukrao Kulkarni,
Age: 39 years, Occ: Service and
Agriculture, R/o. Bondargaon,
Tq. Gangakhed, District Parbhani.
2. Nagorao s/o Santukrao Kulkarni,
Died through his L.Rs. by name.
i. Ramrao s/o Nagorao Kulkarni,
Age: 27 years, Occ: Agriculture,
R/o. Bondargaon, Tq. Gangakhed,
District Parbhani.
ii. Satish s/o Nagorao Kulkarni,
Age: 24 years, Occ: Student,
R/o. Bondargaon.
iii. Jivan s/o Nagorao Kulkarni,
Age: 21 years, Occ: Agril.,
R/o. Bondargaon.
iv. Ku. Shamla d/o Nagorao Kulkarni,
Age: 18 years, Occ: Household.,
R/o. Bondargaon.
.... APPELLANTS
VERSUS
1. The State of Maharashtra.
2. The Special Land Acquisition
Officer, Jayakwadi Project
Division, No.I, Beed Dist.
Beed.
.... RESPONDENTS
...
Shri.P.V. Mandlik, Sr. Counsel for appellants.
Shri.S.P. Daund, A.G.P. for Respdt.Nos. 1 & 2.
...
CORAM: K.K. TATED, J.
RESERVED ON : 05/03/2009
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2
PRONOUNCED ON:16/03/2009
JUDGMENT:
. Heard learned Counsel for the parties.
2. Present First Appeal is preferred by the the appellants - original claimants challenging the judgment and award dated 19-10-1993 passed by IInd Joint Civil Judge, Senior Division, Parbhani, in L.A.R. No. 51/1985.
3. Undisputed ig facts in the present case are that the S.L.A.O. issued notification under Section 4 of the Land Acquisition Act on 04-04-1983 for acquiring appellants - original claimants' land admeasuring 10 Acres and 9 Gunthas from Survey Nos. 51/A, 51/B, 52/A, 52/B, 54/A, and 54/B situated at village Bondargaon, Tq.
Gangakhed, District Parbhani for Jayakwadi -
Majalgaon right bank canal. After following due process of law, S.L.A.O. declared award dated 19-07-1984 and awarded compensation in respect of the acquired land @ Rs.70/- and Rs.80/- per Are totally Rs.34,747/-. Being aggrieved by the said award, the appellants preferred Reference under Section 18 of the Land Acquisition Act and claimed ::: Downloaded on - 09/06/2013 14:25:16 ::: 3 compensation in respect of the acquired land @ Rs.10,000/- per Acre. The claimants also claimed a sum of Rs.25,000/- towards well and Rs.5000/-
towards injury. The said Reference decided by the Reference Court by judgment and award dated 19-10-1993 and awarded compensation in respect of the acquired land @ Rs.150/- per Are and additional sum of Rs.2000/- towards well. Being aggrieved by the said judgment and award passed by the Reference Court, the appellants - original claimants preferred above mentioned First Appeal in this Court.
4. Mr. P.V. Mandlik, Senior Counsel appearing on behalf of the appellants submitted that the Reference Court erred in coming to the conclusion that the appellants - original claimants are not entitled to enhanced compensation in respect of the acquired land @ Rs.10,000/- per Acre. Learned Senior Counsel further submitted that the Court below ought to have considered the evidence produced by the appellants on record and ought to have awarded enhanced compensation in respect of the acquired land. He further submitted that the Reference Court has not properly considered three sale ::: Downloaded on - 09/06/2013 14:25:16 ::: 4 instances produced by the appellants at Exhibits -
40, 41, and 42 for determining the market value of the acquired land.
5. Mr. S.P. Daund, learned A.G.P. appearing on behalf of respondent - State of Maharashtra submitted that the appellants - original claimants failed to produce any relevant sale deed to show that they are entitled to compensation in respect of the acquired land @ Rs.10,000/- per Acre. Not only that, the appellants failed to prove sale deeds Exhibits - 40, 41 and 42 produced by them on record. Learned A.G.P. further submitted that the Reference Court has considered all evidence on record and rightly held that the appellants are entitled to compensation in respect of the acquired land @ Rs.150/- per Are and additional sum of Rs.2000/- for well. In view of these submissions, learned A.G.P. submitted that the present appeal is liable to be dismissed with costs.
6. Before considering the evidence on record, it is to be noted that determination of market value of land acquired in terms of provisions of Land Acquisition Act depends upon a large number ::: Downloaded on - 09/06/2013 14:25:16 ::: 5 of factors, first being the nature and quality of the land i.e. whether the agricultural land or homestead land. Apart from nature and quality of land, in the event of agricultural lands are acquired, the other factors relevant therefore also required to be considered namely as to whether they are irrigated or non irrigated, extent of facilities for irrigation, location of land, closeness from any road or highway, position of land in different seasons particularly in rainy season, existence of any building or structure, as also development in and around area.
7. At this juncture, it is necessary for me to refer judgment of the Apex Court in the matter of Chimanlal Hargovinddas vs Special Land Acquisition Officer, Poona and another reported in AIR 1988 S.C. 1652 for considering the claim of the claimants for enhancement in compensation. The Apex Court in the matter of Chimanlal (supra) held that the market value for compensation in respect of acquired land is to be determined as on the date of publication of notification under Section 4 and also guided methodoly and determination of market value. Relevant Para. Nos. 3 and 4 of the said judgment are as under :
::: Downloaded on - 09/06/2013 14:25:16 ::: 6"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 used by him for making his valuation cannot be utilised by the Court unless produced and provided 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 error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market ::: Downloaded on - 09/06/2013 14:25:16 ::: 7 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 produced 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 S. 4 of the Land Acquisition Act (dates 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 sell 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 instance which provides the index of market value.
(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of land.) (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 a higher price on account of the resultant ::: Downloaded on - 09/06/2013 14:25:16 ::: 8 improvement in development prospects.
(10) The most comparable instances out of the genuine instances have to be identified on the following considerations :
(i) proximity from time
angle.
(ii) proximity from
situation angle.
(11) Having identified the
instances which provide 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 adjustment for the plus and minus factors vis-a-vis land under acquisitions by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors 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 leading the price reflected in the instance taken as norm for plus factors and unloading it for minus 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 land under ::: Downloaded on - 09/06/2013 14:25:16 ::: 9 acquisition.
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.
(14). The exercise indicated in clauses (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.
(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 of say 1000 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, ::: Downloaded on - 09/06/2013 14:25:16 ::: 10 waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be 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 out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur 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 all these factors as a prudent purchaser of land in which position the Judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense."
8. Mr. P.V. Mandlik, Senior Counsel for the appellants submitted that the Reference Court has not considered the sale deeds at Exhibits - 40, 41 and 42 produced by them for considering the market value in respect of the acquired land. He submitted that sale deed at Exhibit - 40 is a sale deed in respect of land Admeasuring 2 Acres 26 Gunthas which was sold on 16-04-1980 for sum of Rs. 24,000/-. The rate in respect of this sale ::: Downloaded on - 09/06/2013 14:25:16 ::: 11 deed comes approximately to Rs.10,000/- per Acre.
He further submitted that sale deed at Exhibit -
41 is a sale deed for Rs. 30,000/-. In respect of this transaction also, market rate comes approximately to Rs. 10,000/- per Acre. In similar way, sale deed at Exhibit - 42 shows that 2 Acres 20 Gunthas were sold for Rs. 30,000/- on 24-06-1986 i.e. Rs. 12,000/- per Acre. Learned Senior Counsel for the appellants further pointed out that the evidence of Uttamrao Santukrao Kulkarni, at Exhibit - 43. Said witness specifically stated that he was cultivating sugarcane, wheat and sunflower in the acquired land. During period of acquisition, market rate in that locality was Rs.10,000/- per Acre. He further deposed that due to acquisition, land Survey No. 54 is divided into two parts due to which damage is caused to remaining part of the land. Learned Senior Counsel for the appellants submitted that though the Reference Court in Para.
7 held that looking upon copies of the sale deeds and fertility of the acquired land, on the basis of the crops that have been cultivated by the appellants in the year 1983-84, it is correct to state that the compensation determined @ Rs.70/-
and Rs.80/- per Guntha by S.L.A.O. against land ::: Downloaded on - 09/06/2013 14:25:16 ::: 12 acquired is certainly less. In any case, the appellants are entitled to enhanced compensation in respect of the acquired land. It is clear from the order passed by the Reference Court that though the Reference Court discussed sale deeds Exhibits 40, 41 and 42 but not considered at the time of fixing market value in respect of the acquired land. There is no discussion whether Reference Court disbelieved sale deeds at Exhibits
- 40, 41 and 42 or considered at the time of fixing market value. Reference Court in Para. 7 just stated that upon considering the evidence on record it is just and proper and in the interest of justice, to grant Rs.150/- per Guntha market value in respect of the acquired land. Therefore, in any case, for fixing market value we can consider the sale deed at Exhibit - 41 which shows that the land sold on 16-03-1984 for sum of Rs.10,000/- per Acre. Even sale deed at Exhibit -
40 is also relevant to consider fixing market value of the acquired land in the present case.
Both sale deeds at Exhibits - 40 and 41 show that there was no trend in that locality for increasing market value during that period. Therefore, I can safely rely on the sale deeds at Exhibits - 40 and 41 to fix market value in respect of the acquired ::: Downloaded on - 09/06/2013 14:25:16 ::: 13 land in the present case @ Rs.10,000/- per Acre.
Our High Court in the matter of State of Maharashtra vs. Bhaskar Namdeo Wagh, reported in 2009 (1) Mh.L.J.299 held that the transaction immediately preceding or succeeding would afford a good guidance to determine market value of the acquired land. Head Note (b) reads as under.
"(b) Land Acquisition Act, S. 23 -
Acquisition of land - Determination of market value of acquired property - The consideration in terms of price received for land under bona fide transaction on the date of notification issued under Section 4 of the Act or a few days before or after the issue of notification generally shows the market value of the acquired land and the value of the acquired land has to be assessed in terms of those transactions - A transaction immediately preceding or succeeding would afford a good guidance to determine the market value of the acquired . Therefore, on the basis of sale deeds at Exhibits - 40 and 41, I hold that the claimants are entitled to compensation in respect of the acquired land @ Rs.10,000/- per Acre.
9. Learned Senior Counsel for the appellants submitted that the Reference Court erred in coming to the conclusion that the claimants are entitled only additional compensation in respect of ::: Downloaded on - 09/06/2013 14:25:16 ::: 14 acquired well to the tune of Rs.2000/-. After going through the evidence on record, it is clear that the appellants failed to produce any cogent evidence to show that they are entitled to compensation in respect of acquired well to the tune of Rs.25,000/-. It is admitted position that the well was not completely constructed.
10. In view of the above mentioned facts and circumstances, the judgment and award passed by the Reference Court dated 19-10-1993 in L.A.R. No. 51/1985 is modified to the extent that the claimants are entitled to compensation in respect of acquired land @ Rs.10,000/- per Acre alongwith statutory benefits as per Amended provisions of the Land Acquisition Act. Hence I pass the following order.
: O R D E R :
(A) First Appeal preferred by the appellants - original claimants against the judgment and award dated 19-10-1993 passed by the IInd Joint Civil Judge, Senior Division, Parbhani in L.A.R. No. 51/1985 ::: Downloaded on - 09/06/2013 14:25:16 ::: 15 is modified to the extent that the claimants are entitled to compensation in respect of the acquired land @ Rs.10,000/-
per Acre alongwith statutory benefits as per amended provisions of the Land Acquisition Act.
(B) First Appeal is partly allowed with no order as to costs.
ig [ K.K. TATED, J.]
sut/u/MAR09/fa507.94
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