1 FA.817.99 n 818.99 n 819.99 - Ambaner ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO. 817 of 1999 The State of Maharashtra. ... Appellant Versus Babu Bapu Hadas. ... Respondent WITH FIRST APPEAL NO. 818 of 1999 The State of Maharashtra. ... Appellant Versus Smt. Mathurabai Pandharinath Ghule and others. ... Respondents AND FIRST APPEAL NO. 819 of 1999 The State of Maharashtra. ... Appellant Versus Smt. Shantabai Waman Ghule and others. ... Respondents ----- Mr. A.R.Patil, AGP for the Appellant / State. Mr. P.N.Joshi for the Respondent(s) in all matters. ----- CORAM : A.S.OKA, J. DATE : 10 th October, 2011. ORAL JUDGMENT: 1 On the oral request made by the learned AGP appearing 2 FA.817.99 n 818.99 n 819.99 - Ambaner for the Appellant / State, the order of dismissal of First Appeal No.819 of 1999 is recalled and the appeal is taken up for final hearing. 2 These appeals can be disposed of by a common judgment and order as the same arise out of a common judgment delivered by the trial Court in three references under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”). 3 The lands subject matter of acquisition are situated at village Ambaner, Taluka Dindori, District Nashik. The notification under Section 4(1) of the said Act was published on 11 th March, 1988. By the award under Section 11 of the said Act, the market value of Rs. 20,000/- per Hectare was offered. The said offer was not accepted by the Respondents – claimants and at their instance, references under Section 18 of the said Act were made in which the market value was claimed at the rate of Rs.75,000/- per Hectare. In these three cases, the possession of the acquired lands was taken over by the State Government in March, 1986 i.e. before the notification under Section 3 FA.817.99 n 818.99 n 819.99 - Ambaner 4(1) of the said Act. 4 The Reference Court came to the conclusion that the market value of the acquired land was Rs.45,150/- per Hectare. The Reference Court granted interest under Section 23 (1-A) of the said Act from the date on which the possession was taken over. The Reference Court also granted interest at the rate of 9% per annum and 15% per annum as per the Section 28 and Section 34 of the said Act with effect from 1 st March, 1986. 5 In support of the appeals, the learned AGP submitted that the interest under Section 23(1-A) of the said Act could not have been granted from a date prior to the publication of notification under Section 4(1) of the said Act. He submitted that the interest was payable neither under Section 28 of the said Act nor under Section 34 of the said Act from the date of the possession, which is prior to the notification under Section 4(1) of the said Act. 6 He submitted that the sale instance of sale-deed at Exhibit 4 FA.817.99 n 818.99 n 819.99 - Ambaner – 17 was not at all relevant inasmuch to the land subject matter of the sale deed at Exhibit – 17, supply of water from the river was available. He submitted that the market value fixed by the Reference Court is excessive. The learned counsel appearing for the Respondent supported the impugned judgment and award. 7 I have given careful consideration to the submissions. I have perused the judgment and record of the case. 8 Reliance was placed by the claimants on the sale-deed dated 23 rd February, 1988 (Exhibit – 17) in respect of the land bearing Gat No.89, admeasuring 1 Hectare and 96.5 Ares situated at the same village Ambaner. For proving comparability of the land subject matter of the said sale instance, one Mr.Nivrutti Karbhari, the purchaser under the sale-deed was examined. He stated that the land subject matter of the sale-deed was a Jirayat land, which was of the same quality as the acquired lands. He deposed that the distance between the acquired lands and the land subject matter of the sale-deed was two furlongs 5 FA.817.99 n 818.99 n 819.99 - Ambaner and there were 2 to 3 lands in between the land subject matter of the sale-deed and the acquired lands. 9 In view of the evidence of the purchaser, the learned trial Judge was right in holding that the land subject matter of the sale- deed was a comparable land. The learned trial Judge, however, has made a reference to a map at Exhibit – 21 and has recorded a finding that the land subject matter of the sale-deed had benefit of water pumped from a river. The market value reflected from the sale-deed at Exhibit – 17 is Rs.49,618/-. The learned Judge has made a deduction of Rs.4,618/- on account of advantage of availability of the water from the river to the land subject matter of the sale-deed. That is how he came to the conclusion that the market value of the land was Rs. 45,150/- per Hectare. In view of the assessment of the land subject matter of the sale-deed, he held that the land was falling in group – III. The lands were sub-divided in the groups depending upon its assessment. As the acquired land was falling in group – I, the market value was further reduced by Rs.3,000/- per Hectare i.e. Rs.43,000/- 6 FA.817.99 n 818.99 n 819.99 - Ambaner per Hectare. For determining the market value as of 11 th August, 1988 on the basis of the sale-deed dated 23 rd February, 1988, the learned Judge has taken the escalation at 5% per annum. That is how the market value of Rs.45,150/- per Hectare was arrived at. I find no error in the approach of the Reference Court especially when the Appellant did not adduce any evidence in rebuttal. On the basis of a decision of the State Government dated 8 th February, 1996, the market value of pot-kharaba land was reasonably fixed at the rate of Rs.1,500/- per Hectare. 10 As far as grant of interest under Section 23(1-A) of the said Act from the date of possession and grant of interest under Section 28/34 of the said Act from the date of possession is concerned, the submission made by the learned AGP will have to be accepted. In this case, the possession was taken over on 1 st March, 1986. Thus, the possession was taken prior to the publication of the notification under Section 4(1) of the said Act. 7 FA.817.99 n 818.99 n 819.99 - Ambaner 11 It will be necessary to make a reference to the Judgment and Order dated 1 st July, 2011 passed by this Court in the First Appeal No.1085 of 1999 [State of Maharashtra Vs. Laxman Motiram Patil (since deceased through L.Rs.] alongwith other connected appeals. In paragraph No.16 of the said decision, this Court has held thus: “16. The legal position which emerges from the aforesaid decisions of the Apex Court regarding the applicability of the aforesaid provisions dealing with grant of interest to a case where the possession of the land under acquisition is taken over prior to the date on which notification under Section 4 (1) of the said Act is published can be summarised as under: (i) The interest under section 23 (1 A) shall be payable in such a case from the date of publication of the notification under Section 4(1) up to the date of award under Section 11. (ii) The interest as per Section 34 will not be payable as the possession has not been taken over in accordance with the provisions of the said Act. (iii) The interest under section 28 shall not be payable from the date of possession when the possession is taken over prior to the date on which notification under Section 4 (1) of the said Act is published. In such a case, the starting point of interest under section 28 will be the date on which Award under section 11 of the said Act is made. ” To that extent, the impugned awards will have to be modified. A 8 FA.817.99 n 818.99 n 819.99 - Ambaner liberty will have to be granted to the Respondents to apply for grant of rental compensation for the period prior to the notification under Section 4(1) of the said Act. 12 The learned counsel appearing for the Respondents – Claimants pointed out that the interest under Section 28 of the said Act has been granted only on the component of the excess land value and not on the components under Section 23(2) and Section 23 (1-A) of the said Act. A claimant in a reference under Section 18 of the said Act is entitled to statutory benefits under Section 23(1-A), Section 23(2) and Section 28 of the said Act as a matter of right, once a case for enhancement in the market value is accepted. Therefore, in view of the settled law, this is a fit case where powers under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 will have to be exercised by directing that interest under Section 28 shall be payable on all the three components. 13 Hence, I pass the following order: 9 FA.817.99 n 818.99 n 819.99 - Ambaner i. The market value fixed by the Reference Court is confirmed ; ii. The Respondent / Claimants shall be entitled to interest under Section 23(1-A) of the said Act from the date of publication of notification under Section 4(1) of the said Act upto the date of award under Section 11 of the said Act ; iii. The Respondents / Claimants shall not be entitled to claim interest under Section 34 of the said Act. However, the Respondents shall be entitled to interest under Section 28 of the said Act from the date on which the award under Section 11 of the said Act was made ; iv. It is clarified that the interest payable under Section 28 of the said Act shall be on the components of the market value of the acquired lands, interest under Section 23 (1-A) and solatium under Section 23(2) of the said Act ; v. The appeals are partly allowed on above terms ; 10 FA.817.99 n 818.99 n 819.99 - Ambaner vi. There will be no orders as to costs ; vii. It will be open for the Claimants to apply to the State Government / appropriate authority for grant of rental compensation from the date on which the possession of the acquired land was taken over in terms of the policy of the State Government reflected from the Government Resolution dated 1 st December, 1972 as amended from time to time. viii. The exercise of determining the compensation payable under the modified awards shall be completed by the Reference Court within a period of three months from the date on which the writ of this judgment is received ; ix. Pending Civil Application No.1135 of 2001 and Civil Application No.1136 of 2001 do not survive and the same are disposed of accordingly. [ A.S.OKA, J ]