1 fa1186-89 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 1186 OF 1989 ALONGWITH CIVIL APPLICATION NO. 425 OF 1991 ALONGWITH CROSS OBJECTION STAMP NO.5720 OF 1990 The State of Maharashtra .. Appellant V/s. Smt. Godavaribai G. Yalmame (Since deceased through her LR's) Yadavrao Gangadhar Yalmame (Since deceased through his LR's) Suresh Yadavrao Yalmame (Since deceased through his LR's) Padmavati Suresh Yalmame .. Respondents .... Mr. A. R. Patil, AGP for the appellant – State. Mr. R. Deshpande i/b. Mr. Suresh Kumbhar for the respondents. .... CORAM : A.S.OKA, J. DATE : JULY 18, 2011. ORAL JUDGMENT : Called out for final hearing. Heard the learned AGP appearing for the appellant-State and the learned counsel appearing for the respondents who have filed Cross Objection. 2. The challenge in this Appeal is to the impugned Judgment and Award dated 14th December, 1988 passed by the Reference Court in a Land Acquisition Reference under Section 18 of the 2 fa1186-89 Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”). The acquisition relates to a land admeasuring 54 R out of survey No.1279-A situated at Sinnar Taluka Sinnar, District Nashik. The land was notified for the public purpose of construction of Hutatma Smarak. Out of the acquired land, the area of 2R was of a Pot Kharaba land. Notification under Section 4(1) of the said Act was issued on 24th September, 1981 which was amended on 20th May, 1982. The Award under Section 11 of the said Act was made on 5th February, 1983 by which market value was offered at the rate of Rs.18,825/- per Hectare for cultivable portion of the land and at the rate of Rs.200/- per Hectare for Pot Kharaba land. Even before the Award under Section 11 was made, on 20th May, 1982, undisputedly, the possession of the acquired land was taken over by the appellant by private negotiation. By the impugned Judgment and Award, the trial Judge held that the market value of the acquired land was Rs.60,000/- per hectare. In addition, statutory benefits were granted under Section 23(1)(A), 23(2) and 28 of the said Act. 3. The learned AGP appearing for the appellant submitted that the trial Court has committed an error by relying upon a Judgment and Award in a land acquisition Reference under Section 18 of the said Act in respect of a land acquired for a different public purpose which was situated far away from the 3 fa1186-89 acquired land. He submitted that the sale instance relied upon by the appellant shows that the market value of the acquired land on the relevant date was much less than Rs.60,000/- per Hectare. He submitted that as the possession was handed over by private negotiation before the Award under Section 11 of the said Act was made, the claimants were disentitled to statutory benefits under Section 23(1-A), 28 and 34 of the said Act. The learned counsel for the respondents supported the Award and submitted that Cross Objection be allowed. 4. None appears for the respondents. The learned trial Judge has relied upon an Award made in a reference under Section 18 of the said Act in respect of another land bearing block No.1137- A/2 and 1140 situated at Sinnar which was acquired for setting up electricity sub station. 5. The original second claimant stepped into the witness box. As regards the other acquired land, he stated thus : “2. The land is situated within Sinnar town municipal limits, and abuts Nashik Pune road, Industrial residential, commercial and educational activities including construction of building for the same are going on, on that road. The Hutatma Smarak has been surrounded by all such buildings. 3. By notification dated 19.2.81, the Govt. acquired block Nos.1137-A/2 and 1140 of Sinnar for the purpose of 132 K B Sub Station Sinnar. The land so acquired for K.B. Station is to the other side of 4 fa1186-89 Nashik Pune Road opposite Hutatma Smarak, just 400/500 feet in the interior. The land acquired for electric K.B. Station has lesser N.A. potentially then the land acquired for the Hutatma Smarak. The rate awarded per K. B. Station land which is in the interior is quite proper, but my land is prominently situated just abutting main road, and deserves better communication. I prayed for higher compensation, and it is reasonable. I want minimum compensation of Rs.40,000/-.” 6. In the cross-examination, he admitted that he had not made any application for converting acquired the land for non agricultural use. 7. As regards the location of the acquired land and the land which was acquired for sub station, there is no cross-examination made of the said witness. The evidence of the second claimant discloses that at the relevant time, the acquired land was abutting the Nashik Pune road and it was within the limits of the Sinnar Municipal Council. He stated that construction of buildings for residential, commercial and educational activities was in progress by the side of the said road. He stated that the land bearing block Nos. 1137-A/2 and 1140 of Sinnar was acquired by the Government for setting up electricity sub station for which notification under Section 4(1) of the said Act was issued on 19th February, 1981. There were two references under Section 18 filed in respect of the said acquired lands being LAR No.39 and 47 of 1982. The Reference Court fixed market value 5 fa1186-89 at the rate of Rs.60,000/- per Hectare for land bearing block No. 1137-A/2, which was converted into the non agricultural use. For block No.1140 which was an agricultural land, the market value of Rs.50,000/- was granted. 8. The land bearing block No.1137-A/2 is situated at the distance of 400 to 500 feet away from Nashik Pune road. Whereas the acquired land is situated adjacent to the Nashik Pune road. The acquired land was situated within the limits of Sinnar Municipal Council on the relevant date and there was construction of buildings for residential, commercial and educational purposes coming up in the area on the relevant date. Thus, it can be safely concluded that the acquired land had a very good potential for non agricultural use. 9. One of the main negative factors in respect of the land acquired for sub station is that it is away from Nashik Pune road. The argument of the claimant before the Reference Court was that in view of this negative factor, the market value of the acquired land must exceed Rs.60,000/- per Hectare. However, there are two negative factors as far as the acquired land is concerned. Firstly, the acquired land was of a triangular shape and secondly, there was no order passed permitting its use for non agricultural purpose. If the acquired land was to developed 6 fa1186-89 for non agricultural use, some expenditure would have been incurred for obtaining permission for non agricultural use. Cost of development would have been more considering the shape of the acquired land. Therefore, though the market value of the acquired land may appear to be more than Rs.60,000/- per Hectare, the same will have to be brought down to Rs.60,000/- per Hectare considering the negative factors. Considering the two negative factors, the Reference Court has correctly granted the market value at the rate exceeding Rs.60,000/- per hectare. No fault can be found with the market value of Rs.60,000/- per Hectare. No case for enhancement is made out. 10. As far as interest under Section 23(1-A) is concerned, it must be noted that the possession was taken over by private negotiation on 20th May, 1982. In view of the Judgment of this Court dated 11th July, 2011 in First Appeal Nos. 1085 of 1999, 777 of 2008, 657 of 1997 and 658 of 1997, the interest under Section 23(1-A) shall be payable from the date of publication of notification under Section 4(1) of the said Act till the date of the Award under Section 11 of the said Act. Though interest under Section 23(1-A) is granted only till 20th May, 1982, there is no challenge to this aspect in the Cross Objection. As far as interest under Section 28 of the said Act is concerned, in view of the aforesaid decision, the same shall be payable from the date of 7 fa1186-89 Award and not from the date of taking over possession. For seeking compensation the period from the date of taking over possession till the date of Award under Section 11 of the said Act, the claimants can always make an application to the State Government for grant of compensation/rental compensation as per the policy of the State Government. There was no occasion for the trial Court to direct payment of interest under Section 34 of the said Act. Hence, to that extent, the impugned Award will have to be modified. 11. Hence, I pass the following order: :: O R D E R :: i. The market value fixed at the rate of Rs.60,000/- per hectare is confirmed. ii. The impugned Award is modified by directing that interest payable under Section 28 of the said Act shall be payable from the date on which Award under Section 11 of the said Act was made and not from the date of possession. iii. Direction for payment of the interest as per Section 34 of the said Act is quashed and set aside. 8 fa1186-89 iv. It will be open for the claimants to apply to the State Government or to the concerned officer for grant of rental compensation/compensation in terms of the policy of the State Government from the date on which possession was taken over by private negotiation till the date of passing the Award under Section 11 of the said Act. If such application is made, the same shall be considered on its own merits without being influenced by this judgment. v. Appeal is partly allowed on the above terms with no order as to costs. vi. Cross Objection is dismissed with no order as to costs. vii. Civil Application No.425 of 1991 does not survive and the same is disposed of. viii. The trial Court shall complete the exercise of calculating the compensation payable as per the modified Award within a period of three months from the date on which writ of the Judgment is received by this Court. 9 fa1186-89 ix. After the amount is determined by the said Court, the trial Court will permit withdrawal or disbursement of the amount deposited by the State Government. (A.S.OKA, J.)