:1: pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 914 OF 1997 WITH CIVIL APPLICATION NO. 4161 OF 2002 1. The State of Maharashtra (Through the Secretary Revenue Dept.) 2. Collector of Kolhapur 3. Naib Tahsildar, Panhala ..Appellants Vs. 1. Shri Ravindra Tukaram Gaikwad 2. Shri Babu Dhondi Mahapure 3. Shri Panduranga Maruti Shete @ Chambhar ..Respondents Mrs. G.P. Mulekar, AGP for appellants. Mr. Amol Gatne with Mr. Prathamesh Bhargude for respondents. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. Date : March 19, 2009. Date : March 19, 2009. Date : March 19, 2009. ORAL JUDGMENT (Per B.H. Marlapalle,J.): ORAL JUDGMENT (Per B.H. Marlapalle,J.): ORAL JUDGMENT (Per B.H. Marlapalle,J.): 1. This appeal filed under Section 96(1) of the Code of Civil Procedure impugns the Judgment and Decree passed by the learned Joint Civil Judge, Senior Division at Kolhapur in Special Civil Suit No. 166 of :2: 1994. The suit was partly decreed and the defendants, present appellants, came to be directed to pay an amount of Rs.11,09,075.20 paise to the plaintiffs by way of compensation of the suit land and also interest at the rate of 9% per annum from 3/6/1978 till 3/6/1979 and thereafter at the rate of 15% per annum till the actual payment of compensation. The defendants were also directed to pay solatium of 30% on the amount of compensation. 2. The facts leading to this appeal are as under:- . The respondents were granted agricultural land by the State Government on 27/4/1961 and the grant was confirmed. Sometimes in the year 1977 part of the granted land came to be acquired by the State Government for rehabilitation of the project affected persons and the respondents were left with a total land of 6 Acres and 20 Gunthas on the ground that there was breach of condition of the grant in as much as the land was put to some other use than agriculture. This order passed by the Collector was :3: challenged in appeal before the Divisional Commissioner and the appeal was dismissed on 20/12/1978. Writ Petition No. 1485 of 1980 came to be filed before this court under Article 226 of the Constitution and on 17/6/1987 the petition was allowed. The orders passed by the Collector and the Commissioner came to be quashed and set aside with a further direction to restore in the possession of the respondents land admeasuring 6 Acres and 20 Gunthas out of Survey No. 291 (Gat No. 1239) of village Kodoli in Panhala Taluka of Kolhapur District. The resumption proceedings were dropped. Despite the said order passed by the Division Bench, no steps were taken by the appellants to restore the land to the respondents and, therefore, the respondents filed Contempt Petition No. 249 of 1992. On 1/3/1993 the said Contempt Petition came to be disposed on the basis of the undertaking furnished on behalf of the State Government. In its order dated 1/3/1993, the Division Bench of this court recorded that possession in respect of 30 Are of land was already delivered to the petitioner on 25/2/1993 and Shri P.D. Kambli, Naib Tahsildar who was present in the court gave an :4: undertaking that 76 Are land would be delivered as soon as the sanction was granted. The said land admeasuring 76 Are has been subsequently delivered on 3/4/1993 and the balance of 1 H. 57 R. restored to the respondents/petitioners. The State Government furnished an undertaking before this court to pay monetary compensation and the State Government was directed to pay the compensation with two months from 1/3/1993. Despite the said directions, the State Government failed to pay compensation and consequently Contempt Petition No. 140 of 1993 came to be filed, which was allowed to be withdrawn on 13/8/1993 with liberty to take such proceedings and steps as may be advised. On 13/10/1993 notice under Section 80 of C.P.C. was issued by the present respondents to the appellants and ultimately Special Civil Suit No. 166 of 1994 came to be filed for recovery of Rs.51,29,190/- by way of compensation. The compensation was claimed at the rate of Rs.30/- per sq.ft. in respect of total land of 1 H. 57 R. The appellants filed Written Statement at Exh.15 and opposed the suit. The State Government claimed that the total compensation payable to the plaintiffs was :5: fixed at Rs.40,031/- along with interest and the claim made of Rs.51,29,190/- was required to be dismissed. The claimants examined three witnesses i.e. Shri Ravindra Gaikwad, one of the plaintiffs as PW 1, Shri Anil Shinde - PW 2, Civil Engineer and Valuer and Shri Namdeo Tripane - PW 3 so as to prove the sale instance of Index No.II at Exh.42. The State Government examined three witnesses i.e. Shri Dilip Bhosale - DW 1, who was at the relevant time working as Sub Registrar at Panhala, Shri Bhalchandra Gokakar - DW 2, who was working in the Collector’s office as Avval Karkun in the Land Acquisition Department from 1991 to 1993 and Shri Pandurang Kamble - DW 3, who was working as the Naib Tahsildar at Panhala from 1989 to 1994. 3. DW 3 Shri Pandurang Kamble admitted in his cross-examination that he had appeared before this court in the Contempt Petition and made a statement that possession of 30 Gunthas land out of Gat No. 1239 and 76 Gunthas out of Gat No. 1236 would be restored to the plaintiffs and monetary compensation of the remaining land admeasuring 1 H. 57 R. would be paid to the plaintiffs after sanction. He further :6: admitted that, on the basis of the said statement made, the High Court passed the order dated 1/3/1993 and directed the defendants to pay the compensation to the plaintiffs within a period of two months from the date of the order and without causing any delay. PW 1 also admitted in his depositions that the compensation was directed to be paid within two months from 1/3/1993, but it was not paid and, therefore, as recorded in the order passed by this court and brought on record at Exh. 83, the Contempt Petition was allowed to be withdrawn with liberty to take appropriate proceedings for recovery of compensation amount. 4. Mrs. Mulekar the learned AGP has challenged the impugned decree on the point of granting compensation as per the Land Acquisition Act, 1894, fixing market rate at Rs.12/- per sq.ft. and the payment of interest under Section 28 i.e. 9% for the first year and 15% thereafter, but with effect from 3/6/1978. As per Mrs. Mulekar the trial court was in error in granting compensation by taking into consideration the scheme of Section 23 of the Land :7: Acquisition Act, 1894 and even otherwise the plaintiffs did not place any evidence before the trial court in the form of sale instances or other acceptable evidence in support of their claim of Rs.30/- per sq.ft. or Rs.12/- per sq.ft. as granted by the trial court. She further submitted that adverse inference was required to be drawn against the claimants and the compensation amount of Rs.40,019/- was adequate. As per Mrs. Mulekar the trial court was in errors in granting interest from 3/6/1978 and at the most the interest could have been granted with reference to the order passed by this court on 1/3/1993. In support of these contentions, Mrs. Mulekar has relied upon a decision of this court in the case of State of Maharashtra vs. Ismile Abdul Gafur Patel [2006 (2) Mh.L.J. 323] [2006 (2) Mh.L.J. 323] [2006 (2) Mh.L.J. 323] and a decision of the Supreme Court in the case of Union of India vs. Budh Singh and ors. [(1995) 6 SCC 233] [(1995) 6 SCC 233] [(1995) 6 SCC 233]. 5. Mr. Gatne the learned counsel for the respondents-claimants has supported the impugned decree. He did not agree with the submissions of Mrs.Mulekar that solatium was not payable to the :8: claimants in the instant case and he placed reliance on the decision of the Supreme Court in the case of Narain Das Jain (since deceased) by LRs. vs. Agra Nagar Mahapalika, Agra [(1991) 4 SCC 212] [(1991) 4 SCC 212] [(1991) 4 SCC 212]. He also pointed out that for the acquisition in 1977 of the land granted to the claimants and for the very same purpose of rehabilitation of project affected persons, the State Government had followed the procedure under the Land Acquisition Act, 1894 and also paid compensation accordingly and, therefore, when the State Government undertook before this court on 1/3/1993 to pay the compensation in respect of 1 H. and 57 R land, it was presumed that the compensation was to be calculated by following the provisions of the Land Acquisition Act, 1894. 6. We have no doubt in our mind that for payment of compensation for the land which could not be restored to the claimants, on quashing and setting aside the order passed by the Collector on 3/6/1978, the compensation was required to be paid within the scheme of Land Acquisition Act, 1894. The claimants had claimed Rs.30/- per sq.ft. as the market rate :9: and, therefore, it was for the State Government to bring on record registered sale deeds or any other acceptable evidence regarding the market rate of the land as on 1/3/1993 and despite the fact that three witnesses were examined, such evidence was not placed before the trial court by the defendants. The trial court noted that both the parties did not place on record comparable sale instances and the sale instance sought to be proved through the evidence of PW 3 was rejected and rightly so in our opinion as it was not a comparable sale instance. The valuer’s evidence of both the parties has also been rightly discarded. PW 1 in his depositions before the trial court admitted in his cross-examination that vide his application dated 28/1/1991 he had asked for compensation at the rate of Rs.12/- per sq.ft. It appears during his cross-examination he was confronted with the application dated 28/1/1991 which he had submitted to the State Government and claimed compensation at the rate of Rs.12/- per sq.ft. As per the trial court, the claimants could not have asked more than Rs.12/- per sq.ft. and the same was reasonable market rate which could be awarded. :10: 7. As noted earlier, the State Government was well equipped to place before the trial court sufficient documentary evidence to dis-prove that the market rate was less than Rs.12/- per sq.ft. or the said rate was more than the market rate. No steps were taken in this in this regard and, therefore, in our view the adverse inference is required to be drawn against the State Government rather than against the claimants. It also needs to be recorded that when the suit land was allotted to the project affected persons way back in 1978, some consideration would have been charged to the allottee under the Land Disposal Rules and even the said figure was not brought on record before the trial court. We, therefore, do not find any ground to discard the market rate fixed at Rs.12/- per sq.ft. for the purpose of granting compensation to the plaintiffs by the trial court. The decision of the trial court to grant compensation by following the scheme of the Land Acquisition Act, 1894 is also supported, in a way, by the decision of the Apex Court in the case of Budh Singh and ors. (Supra). :11: 8. So far as solatium is concerned, undoubtedly, it is part of the compensation and the trial court has noted that from the total market value payable for 1 H. 57 R. the grantees would be entitled only for 2/3rd of the same amount and 1/3rd would go to the State Government. Consequently, 1/3rd of the compensation amount payable at the rate of Rs.12/- per sq.ft. has been deducted and solatium has been fixed on the remaining 2/3rd amount of compensation. As the compensation has been fixed with reference to 1/3/1993 or on the basis of the application dated 28/1/1991 submitted by the claimants, certainly solatium at the rate of 30% would be payable to the claimants. Once the compensation is fixed on the basis of the scheme under the Land Acquisition Act, 1894, solatium becomes part of the said scheme and, therefore, we do not find any error on the part of the trial court in directing payment of solatium at 30% on 2/3rd amount of compensation payable to the claimants. 9. Now coming to the issue of interest as has been directed by the trial court, we have gone through the orders passed by this court on 17/6/1987 :12: (Exh. 33), 1/3/1993 (Exh.82) and 13/8/1993 (Exh.83). We have also recorded the admissions of PW 1 as well as DW 3 that the compensation was payable within two months from 1/3/1993 which implies that the compensation ought to have been paid on or before 1/5/1993. We, therefore, deem it appropriate that interest ought to be payable to the claimants from 1/5/1993 and not from June 1978 as has been directed by the trial court. For the period from 1/5/1993 to 30/4/1994 interest shall be payable at 9% per annum and thereafter it shall be payable at the rate of 15% per annum till the compensation amount was deposited. 10. In the premises, this appeal succeeds partly. We confirm the rate of Rs.12/- per sq.ft. as fixed by the trial court in the impugned decree and also payment of 30% solatium on the 2/3rd amount of compensation payable to the claimants. We direct that the interest under Section 28 of the Land Acquisition Act, 1894 shall be paid to the claimants with reference to 1/3/1993 and not from June, 1978 as has been stated in the impugned decree. The impugned decree accordingly stands modified. :13: 11. Registry to draw a fresh decree. 12. Civil Application No. 4161 of 2002 does not survive and same shall stand disposed as such. (D.G. Karnik,J.) (B.H. Marlapalle,J.) (D.G. Karnik,J.) (B.H. Marlapalle,J.) (D.G. Karnik,J.) (B.H. Marlapalle,J.)