1 fa761-92,102,103-93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO. 761 OF 1992 Shri Waman Bajaba Kapse ] Residing at Shirpur Taluka – Daund,] .. Appellant District – Pune. ] (Orig. Claimants) V/s. 1. The Special Land Acquisition ] Officer No. I, Pune. ] ] .. Respondents 2. The State of Maharashtra ] (Orig. Opponents) ALONGWITH FIRST APPEAL NO. 102 OF 1993 The State of Maharashtra ] .. Appellants ] (Orig. Opponent) V/s. 1. Ramaji Appa Satav ] ] 2. Nivrutti Appa Satav ] ] 3. Sopan Appa Satav ] ] 4. Hausabai Mahadu Satav ] .. Respondents ] (Orig. Claimants) 6. Bhagwan Mahadu Satav ] ALONGWITH FIRST APPEAL NO. 103 OF 1993 The State of Maharashtra ] (At the instance of Special Land ] .. Appellants Acquisition Officer No. 1, Pune) ] (Orig. Opponent) 2 fa761-92,102,103-93 V/s. Waman Bajaba Kapse ] .. Respondent ] (Orig. Claimant) .... Mr.Narendra V. Walawalkar, Senior Advocate for the appellant in F.A. No. 761/1992 and for respondent in F.A. No.102/1993 and 103/1993. Mr. A. R. Patil, A.G.P for respondent-State in F.A. No.761/1992 and for appellant in F.A. No.102/1993 and 103/1993. .... CORAM : A. S. OKA, J. DATE : JANUARY 28, 2011. ORAL JUDGMENT :- These Appeals can be conveniently decided by a common judgment. 2. By First Appeal No. 761 of 1992, the appellant has taken an exception to the Judgment and Award dated 29th June, 1981 passed by the learned Extra Joint District Judge, Pune in a Reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the “said Act”) being LAR No.53 of 1984. The appellant in this appeal is the original claimant whose land admeasuring 1 Hectare and 54 Are out of Gat No. 194 of village Shirapur, Taluka Daund, District Pune was notified under Section 4 of the said Act on 24th December, 1981. Award under 3 fa761-92,102,103-93 Section 11 of the said Act was made on 31st March, 1983 by which market value was offered at the rate of Rs.5,500/- per Hectare. In the Reference under section 18 of the said Act made at the instance of the appellant, he claimed the market value at the rate of Rs.30,000/- per Hectare. By the impugned Award, the Reference Court came to the conclusion that the market value of the said land was of Rs. 11,000/- per Hectare. Apart from granting the market value at the said rate, the Reference Court also granted statutory benefits under Section 23(1-A), 23(2) and 28 of the said Act. In this First Appeal, the appellant/claimant is claiming the market value at the rate of 30,000/- per Hectare. First Appeal No. 103 of 1993 is the Cross Appeal preferred by the State of Maharashtra for challenging the Judgment and Award which is the subject matter of challenge is First Appeal No. 761 of 1992. 3. First Appeal No. 102 of 1993 is preferred by the State of Maharashtra for challenging the Judgment and Award dated 29th May, 1991, passed by the learned Extra Joint District Judge, Pune in a Reference made under Section 18 of the said Act at the instance of Respondents (Original claimants) being LAR No.55 of 4 fa761-92,102,103-93 1984. The acquisition is in respect of land of 3 Hectares and 48 Ares out of Gat No. 54 from village Shirapur Taluka Daund, Distruct Pune. The said land was also notified under the same notification dated 24th December 1981 issued under Section 4 of the said Act. Common evidence was recorded in this Reference along with the Reference subject matter of the other two Appeals. 4. The learned senior counsel appearing for the Appellant in First Appeal No. 761 of 1992 has invited the attention of the Court to the oral and documentary evidence on record. He pointed out that the appellant therein produced and proved in evidence a certified copy of the sale deed dated 14th August, 1981 (Exhibit 23). He pointed out the evidence adduced by the appellant. He submitted that the evidence on record shows that the sale deed was in respect of a comparable land and the sale deed reflects the market value of 14,150/- per Hectare. He pointed out that the sale deed has been executed about four months prior to the material date in the present case. Therefore, the market value of the acquired land will be much more than what is reflected in the sale deed. He pointed out the evidence on the comparability of the land subject matter of the sale deed with the acquired land. 5 fa761-92,102,103-93 He placed reliance on the decision of the Division Bench of this Court dated 17th June, 1988 in First Appeal No. 481 of 1984 and other connected matters. He pointed out that the said decision relates to a part of the same Gat No. 194 which was notified for acquisition in March 1977. He pointed out that the appellant filed Land Reference No.81 of 1982 seeking enhancement and Reference Court fixed the market value of the acquired land at the rate of Rs. 11,100/- per Hectare. He submitted that the relevant date in the present Appeals is nearly 4 ½ years after the relevant date in the case before the Division Bench of this Court. He submitted that if market value is to be determined on the basis of the said decision, considering the evidence on record, 10% escalation per year will have to be taken into account. He placed reliance on the decision of the Supreme Court in the case of the General Manager ONGC v/s. Rameshbhai Patel & Anr [2008 (6) All MR 491]. He submitted that yearly increase of 10% will have to be taken on cumulative basis. 5. The learned AGP appearing for the State Government submitted that looking to the evidence of the appellants -claimants and other witnesses, this is a case where there was no 6 fa761-92,102,103-93 development in and around the acquired land and even on the material date, the entire area was undeveloped area. He submitted that there was no justification for fixing the market value at Rs.11,000/-. He relied upon some of the observations made by the Apex Court in the matter of ONGC v/s. Rameshbhai Patel (Supra) and submitted that there is no evidence adduced by the claimant to show that there was a steady increase of the prices of the lands in the locality of the acquired land and in the absence of any evidence, no enhancement in market value can be granted. He submitted that at the most yearly escalation of 5% per year can be granted . The yearly increase cannot be granted on cumulative basis. He, therefore, submitted that Appeals filed by the State of Maharashtra deserve to be allowed. 6. I have given careful consideration to the submissions. In both the References a common evidence was adduced. The second respondent in First Appeal No. 102 of 1993 stepped into witness box. He deposed that the land bearing Gat No. 54 was a bagayat land. The land was irrigated by water from the canal of Khadakwasala Dam and also from Ujani project of irrigation. He was taking bagayat crops by using the said water from the year 7 fa761-92,102,103-93 1976 till the year 1981. He relied upon the sale deed at Exhibit 23 which related to a land at village Siddhatek. He deposed that village Siddhateck is at the distance of about two furlongs from village Shirapur and for reaching the said place one has to cross river by ferry boats which takes about 5 to 10 minutes. He stated that transportation by ferry boat was made available by the village panchayat free of cost. In the cross-examination he stated that population of the said village Shirapur was about 1200. He admitted that there was no bus transportation available in the village in the year 1981 and there is no hospital or any government dispensary in the village. The Appellant in First Appeal no.761 of 1992 stepped into witness box. He stated that though the acquired land bearing Gat No.194 was a bagayat land, it was erroneously classified as jirayat land by the Land Acquisition Officer. He also stated that village Siddhatek was just two kilometers away from his village by ferry boat. He also deposed that the transportation by ferry boat was made available free of cost. There is another witness examined by the appellant. The third witness was examined by name Dattu Haribhau Satav, who was owner of the land bearing Block No. 55 (part of the same village). 8 fa761-92,102,103-93 8. Perusal of the certified copy of the Award in land Reference No.81 of 1982 at Exhibit-17 shows that the Reference related to a part of land bearing Gat No.194 owned by the Appellant in First Appeal No.761 of 1990. The decision of the Reference Court of fixing the market value at the rate of Rs.11,100/- per Hectare was confirmed by this Court by Judgment dated 16th June, 1988. Thus, the Award of the Reference Court in the said case which was confirmed by the Judgment of this Court is the best piece of evidence in the present case as it is in respect a part of the same land bearing Survey No.194 which was acquired under the notification of March, 1977. In the present case, the notification under sectionn 4 has been issued in December 1981 i.e.nearly 4 ½ years after the notification in case earlier acquisition. When an instance of a part of the same land was available which a pre- notification instance, the sale instance of a land in another village Sidhhatek will have to be kept out of consideration. 9. The witnesses examined before the Reference Court have deposed that the acquired lands were getting water supply from the canal of Khadakwasana dam and from Ujani irrigation project. The Respondent No. 2 in First Appeal No. 102 of 1993 9 fa761-92,102,103-93 stated in his deposition that from the year 1976 onwards, the claimants were taking bagayat crops. This statement in the examination-in-chief does not appear to be challenged seriously in cross examination except for suggesting that a claim was not made before the Land Acquisition Officer that the acquired land was a bagayat land. The Appellant in First Appeal No. 761 of 1992 also deposed that the land was getting water from Ujani Project as well as from Khadakwasla Dam from the year 1977. He also deposed that his land was a bagayat land. 10. Though sale instance at Exhibit 23 will have to be kept out of consideration, the said sale instance shows that the market value of an agricultural land in the adjacent village as on 14th August, 1981 was more than Rs. 14,000/- per Hectare. Considering the availability of regular water supply from the year 1976-77 for irrigating the acquired lands, there is bound to be a steady rise in the market value in respect of the acquired lands and therefore, for determining the market value of the lands as of December 1981 on the basis of the market value fixed as of March 1977, yearly escalation will have to be granted from March 1977. 10 fa761-92,102,103-93 11. In the case of ONGC (Supra) the Apex Court dealt with issue of granting yearly escalation. The Apex Court in paragraph no. 11 of the judgment observed thus : “There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural area. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15 % per annum, the corresponding increases in rural areas would at best be only around half of it, that is about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence related to increase in prices.” In the facts of the case before the Apex Court, a reliance was placed on sale instance of the year 1987 which was used by the Apex Court for computing the market value as on 1992 by granting escalation of 7.5% per annum. In paragraph 14, the Apex Court observed thus : “ In this case, the acquisition was in a rural area. There was no evidence of any out-of-ordinary developments or increases in prices in the area. We are of the view that providing an escalation of 7.5% per annum over the 1987 price under Ex.15, would be sufficient and appropriate to arrive at the market value of acquired lands.” In the present case, looking to the evidence on record, the 11 fa761-92,102,103-93 steady increase in the market value of the lands in the vicinity of the acquired land has been established and, therefore, there is no reason why escalation of 7.5% per annum should not be granted for determining the market value as of December, 1981 on the basis of market value prevailing in March 1977. 11. On the other issue regarding the manner which the increase should be calculated, the learned AGP submitted that it is in the facts of the case that the Apex court directed that increase should be on cumulative basis. In paragraph No.15, the Apex Court observed thus : “ The increase in market value is calculated with reference to the market value during the immediate preceding year. When market value is sought to be ascertained with reference to a transaction which took place some years before the acquisition, the method adopted is to calculate the year to year increase. As the percentage of increase is always with reference to the previous year's market value, the appropriate method is to calculate the increase cumulatively and not applying a flat rate.” Thus, what has been laid down by the Apex Court is the principle. The argument of learned AGP is not correct. The Apex Court has held that the appropriate method to calculate the 12 fa761-92,102,103-93 increase is on cumulative basis and a flat rate cannot be applied. The learned senior counsel appearing for the Appellant in First Appeal No. 761 of 1992 has placed on record calculations made by taking the increase at the rate of 7.5% as well as at the rate of 10% on cumulative basis by adopting base rate of Rs.11,100/- per Hectare as of per year the year 1977. As the acquired lands were in rural area, the escalation at the rate of 7.5% per year on cumulative basis will have to be granted. By granting escalation at the rate of 7.5 %,as of 1981, the market value comes to Rs. 14835/- per Hectare. Thus, the reasonable market value be Rs. 14835/- per Hectare. Under the circumstances, First Appeal No. 761 of 1992 will have to be allowed in part and other two Appeals of the State Government will have to be dismissed. Hence, I pass the following order : :: O R D E R :: i. First Appeal No.103 of 1993 is dismissed with no order as to costs. ii. First Appeal No.761 of 1992 is partly allowed. 13 fa761-92,102,103-93 iii. The Judgment and Award dated 29th June, 1991 in land Acquisition Reference No.53 of 1984 is modified and the total market value of the acquired land is fixed at the rate of Rs.14,835/- per Hectare. iv. In addition to the said market value, the claimants will be entitled to statutory benefits under Section 23(1-A), 23(2) and Section 28 of the Land Acquisition Act, 1894. v. The computation of the compensation payable as per the modified Award shall be made by the Reference Court within a period of three months from the date on which writ of the Judgment is received by the said Court. vi. The State Government shall deposit additional compensation within a period of three months from the date of which compensation amount is fixed. 14 fa761-92,102,103-93 vii. The Appellant in First Appeal No.761 of 1992 is entitled to proportionate costs of the Reference as well as the said Appeal from the State Government. viii. First Appeal No.102 of 1993 stands dismissed with no orders as to costs. JUDGE