1 F. A. No. 281/1994 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 281 OF 1994 Digamber S/o Kishan Puri (Died on 14/7/1996) His Legal Heir Smt. Saraswati W/o Digamber Puri, Age : Major, Occu. : Household, R/o 27/278, Shri Saikrupa Near Muncipal Council School, Samta Nagar, Osmanabad. .. Appellant Versus The State of Maharashtra, through the Collector, Osmanabad. .. Respondent WITH FIRST APPEAL NO. 282 OF 1994 1. Syed Haffiyoddin S/o Syed Karimoddin Since died his L.Rs. 1/a Salimbai W/o Hafezoddin Syed, Age : 60 Years, Occu. Household, R/o Kallam. 1/b Syed Fasioddin S/o Haffizoddin, Age : 42 Years, Occu. : Business, R/o Kallam. 2 F. A. No. 281/1994 1/c Syed Zakiyoddin Haffizoddin, Since died through his L.R. 1/c/1 Syed Azhar S/o Syed Zakioddin, Age : 22 Years, Occu. : Education, R/o Kallam, Tq. Kallam, District Osmanabad. 1/d Syed Takiyoddin Haffizoddin, Age : 24 Years, Occu. : Education, R/o Kallam. 1/e Maimunabi w/o Syed Kadar, Age : 28 Years, Occu. ; Household, R/o Darde Chawl near Millan Talkies, Santacruz, Bombay - 34. 1/f Tyajmunissa w/o Abdulla Arab, Age : 19 Years, Occu. : Household, R/o Terkheda, Tq. Kallam. 2. Sadatali S/o Mujafarali, Age : 55 Years, Occu. : Agril., R/o Kallam. .. Appellants Versus The State of Maharashtra, through the Collector, Osmanabad. .. Respondent Shri V. C. Solshe, Advocate h/f Shri C. G. Solshe, Advocate for Appellant in both appeals. Shri K. M. Suryawanshi, A.G.P. for Respondents/State in both appeals. 3 F. A. No. 281/1994 CORAM : K. K. TATED, J. DATE : 15TH DECEMBER, 2010. JUDGMENT : . Heard learned counsel for the parties. Both these appeals can be disposed of by common judgment as the issue involved is similar. The First Appeal No. 281/1994 is preferred by the original claimants against the judgment and award dated 27th June, 1986 passed by the Civil Judge Senior Division, Osmanabad in Land Acquisition Reference No. 27/1982. 2. A few facts of the matter are as under : The Special Land Acquisition officer issued notification U/Sec. 4 of the Land Acquisition Act on 21st August, 1978 for acquiring appellants house property bearing No. 61/44 admeasuring 95 square meters. After following due process of law the Special Land Acquisition Officer passed award dated 07th July, 1979 and awarded compensation in the sum of Rs. 16111.50 paise. Being aggrieved by the award passed by the Land Acquisition Officer, the appellant preferred reference U/Sec. 18 of the Land Acquisition Act claiming enhanced compensation in the sum of Rs.15,000/-. The said reference is dismissed by the Reference Court holding that though the notice 4 F. A. No. 281/1994 U/Sec. 9(3) of the Land Acquisition Act issued to the claimant, he failed to reply the same and, therefore, U/Sec. 25(2) (unamended section) of the said Act, claimant is not entitled for compensation. 3. In First Appeal No. 282/1994, the appellants/original claimants challenge the judgment and award dated 27.06.1986 passed by the Civil Judge Senior Division, Osmanabad in Land Acquisition Reference No. 50/1982. 4. A few facts of the matter are as under : The Special Land Acquisition Officer issued notification U/Sec. 4 of the Land Acquisition Act dated 21st August, 1978 for acquiring appellants house property bearing No. 92/A admeasuring 199 square meter. After following due process of law the Special Land Acquisition Officer declared award dated 07th July, 1979 and awarded compensation in respect of acquired property. 5. Being aggrieved by the award passed by the Special Land Acquisition Officer, the appellants/original claimants preferred Reference U/Sec. 18 of the Land Acquisition Act. The claimants claimed enhanced compensation of Rs. 40,000/-. 6. Learned counsel Mr. Solshe appearing on behalf of 5 F. A. No. 281/1994 appellants/original claimants submits that the Reference Court erred in coming to the conclusion that the appellants are not entitled for any compensation for want of reply to the notice U/Sec. 9(3) of the Land Acquisition Act. He submits that at the time of filing reference U/Sec. 18 of the Land Acquisition Act, the appellants specifically stated in reference application that, they have not received notice U/Sec. 9(3). He further submits that, though the respondent/State raised objection in their written statement about notice U/Sec. 9(3), no one entered into witness box on behalf of Land Acquisition Officer to prove that notice U/Sec. 9(3) of the said Act was duly served on appellants. He further submits that even on merits the Reference Court erred in coming to the conclusion that the appellants failed to prove that they are entitled to enhanced compensation in respect of the house property. He submits that to prove the market value of acquired property they examined expert Mr. Shivrudra Dannappa Kevalram P.W. 17 at Exhibit 54. He submits that the expert specifically stated in his evidence that he visited the spot for valuation. He took measurement of the house property. He prepared plan and measurement. He further stated in the evidence that he assessed the valuation of the acquired property taking into consideration DSR rates of 1978-79. He further stated in his evidence that at the time of preparing valuation 6 F. A. No. 281/1994 report he also considered the depreciation value of the acquired property. Learned counsel appearing on behalf of appellant pointed out that the expert submitted his report at Exhibit 54. In the said report the expert valued the acquired land in First Appeal No. 281/1994 at the rate of Rs. 48,824/- and in First Appeal No. 282/1994 at the rate of Rs. 40,475/-. He further submits that the claimants produced sale deed at Exhibit 80 dated 24.07.1974 in respect of house property admeasuring 26 x 13 of Rs. 8,951/-, Exhibit 81 sale deed dated 02.02.1978 of house property admeasuring 112 x 82 for Rs. 40,101/- and Exhibit 82 dated 19010.1979 in respect of house property admeasuring 50 x 12.5 feet of Rs. 10,000/-. He submits that on the basis of valuation report submitted by P.W. 17 and sale deeds at Exhibit 80, 81 and 82, the Reference Court should have held that the claimants are entitled for enhanced compensation in respect of acquired house property. 7. On the other hand, learned Assistant Government Pleader appearing on behalf of respondent supports that the Reference Court rightly rejected appellants claim on the ground that they failed to reply notice U/Sec. 9(3) of the said Act. He submits that in view of Sec. 25(2) (unamended section), there is complete bar for claiming enhanced compensation over and above claimed 7 F. A. No. 281/1994 pursuant to the reply to the notice U/Sec. 9(3) of the Act. In the present cases, admittedly, the appellants/original claimants failed to reply notice issued by Special Land Acquisition Officer U/Sec. 9(3) of the said Act, calling upon appellants objection to the valuation. He further submits that, even otherwise, the appellants failed to produce any cogent evidence to show that they are entitled to enhanced compensation for acquired property. In view of these submissions learned Assistant Government Pleader appearing on behalf of respondent submits that, there is no merit in the present first appeals and same are liable to be dismissed with costs. 8. Heard both sides at length. Following two points arise for consideration in these two appeals. i) Whether the burden is on claimant or Special Land Acquisition Officer to prove that notice U/Sec. 9 of the Land Acquisition Act is issued and received by the claimants ? ii) Whether each of the appellant/original claimant is entitled to receive enhanced compensation as per Sec. 25(2) of the Land Acquisition Act ? 9. In present cases, the Reference Court dismissed appellants 8 F. A. No. 281/1994 references U/Sec. 18 of the Land Acquisition Act on the ground that they failed to reply notice U/Sec. 9 of the Land Acquisition Act. Section 9 of the Land Acquisition Act reads as under : "9. (1) The Collector shall then cause public notice to be given at convenient places or on near the land to be taken, stting that the Government intends to take possession of the land, and that claims to compensation for all interest in such land may be made to him. (2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interest in the land and the amount and particulars of their claims to compensation for such interest, and their objections (if any) to the measurements made under section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent. (3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf within the revenue district in which the land is situated. 9 F. A. No. 281/1994 (4) In case any person so interested resides elsewhere and has no such agent the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and [registered under sections 28 and 29 of the Indian Post Office Act, 1898]." 10. It is admitted fact that, the appellants in their references U/Sec. 18 of the Land Acquisition Act specifically stated that, "that the claimant did not receive notice U/Sec. 9 and 10 of the Land Acquisition Act as per the strict provisions of the Land Acquisition Act." Though the respondent/State filed their written statement in reference application U/Sec. 18 of the Act and raised objection that in spite of notice U/Sec. 9 of the Act, appellants/original claimants failed to submit their claim and, therefore, they are not entitled to enhanced compensation in respect of the acquired property. To prove these facts, no one entered into witness box on behalf of respondent/Land Acquisition Officer. Except bare statement in their written statement not an iota of evidence was adduced by the respondents before the Reference Court to prove their case. It is to be noted that Land Acquisition Officer is also maintaining his file about the notices issued in land acquisition matters. If the notice is issued by the registered post A. D., he must have received acknowledgement and if it is issued through messenger 10 F. A. No. 281/1994 he must have received the acknowledgement. In spite of that the respondents failed to produce office copy of Sec. 9 notice on record. 11. The Reference Court at the time of answering issue No. 3 i. e., "Whether each of the claimant was duly served with notice U/Sec. 9 of the Land Acquisition Act ?", held that appellants failed to call upon State for production of served copies of notices on record. The Reference Court held that the burden is on claimants to satisfy that notice U/Sec. 9 is not served on them. 12. Learned counsel appearing on behalf of appellants relied on the judgment in the matter of Special Land Acquisition Officer vs. Sanagouda Paragouda Patil reported in AIR 1974 Karnataka page 74. In that case the Karnataka High Court held that the burden of proving that the notice complying with the requirement of Sec. 9 has been served on the claimant by the Land Acquisition Officer is on the Land Acquisition Officer. Head note 'B' of this authority reads as under : "B. Land Acquisition Act (1894). Section 25(2) and 9 - Bar under S. 25(2) when applicable - Requirements of valid notice under Section 9 must be complied with." " The burden of proving that a valid notice 11 F. A. No. 281/1994 complying with the requirements of Section 9 has been served on the claimant is on the Land Acquisition Officer. Where it has not been established that the notice served on the claimant is one which complied with the requirements of a valid notice under Section 9, the bar under Section 25(2) is not applicable." 13. Learned counsel appearing on behalf of appellants also relied on the judgment in the matter of Abdulla Kadar Husseinbhai Lakdawala vs. The Special Land Acquisition Officer, Thane reported in 1989 Mh. L. J. page 230. In this case our High Court held that mere service of notice U/Sec. 9(3) is not sufficient, but it must comply other provisions i. e. clear 15 days notice and it must be also as regards claim to be lodged by the claimant. Head notes 'A' and 'B' read as under : "(a) Land Acquisition Act (1 of 1894), S. 9(3) - Claim to compensation - Service of notice on claimant - Mere intimation about date of hearing not enough - It must be also as regards claim to be lodged by claimant." "(b) Land Acquisition Act (1 of 1894), S. 9(2) and (3) - Notice in the matter of claim to compensation as provided in section 9(2) should be clear 15 days' notice." 14. Learned counsel appearing on behalf of appellant also 12 F. A. No. 281/1994 relied on the judgment in the matter of Sushila Devi and another v. State of Bihar and others reported in AIR 1963 Patna page 469. In that case the Patna High Court held that, onus to prove service of notice lies on the State. Head note 'A' of that case reads thus : "(a) Land Acquisition Act (1894), Ss. 9 and 25 - Service of notice - Onus - Land under occupation - Special notice - Necessity - Non- service - Effect." 15. It is crystal clear from above mentioned authorities that the burden of proving that a notice complying with the requirement of Sec. 9 has been served on the claimants, is on the Land Acquisition Officer. In the present case neither land acquisition officer produced office copy of notice U/Sec. 9 of the said Act showing service on claimants, nor entered into witness box for proving their case, in spite of that the Reference Court held that burden of proving non service of notice U/Sec. 9 of the said Act is on appellants/original claimants. The finding of Reference Court about service of notice U/Sec. 9 of the said Act is against well settled principles of law. Considering the authorities referred hereinabove and as the respondent/Special Land Acquisition Officer failed to produce any cogent evidence on record about service of notice U/Sec. 9 of the said Act. I hold that 13 F. A. No. 281/1994 notice U/Sec. 9 of the said Act was not served on appellants/original claimants. 16. Once it is held that, if the notice U/Sec. 9 of the Act is not served on appellants/original claimants, whether bar U/Sec. 25(2) of the said Act attracts. Sec. 25(2) (unamended) reads as under : "25(2). When the applicant has refused to make such claim or has omitted without sufficient reason to make such claim, the amount warded by the Court shall in no case exceed the amount awarded by the Collector." If the notice is not served on claimants U/Sec. 9, there is no question of putting their claim before the Land Acquisition Officer. 17. Now the next question arises in present cases is, whether the appellants produced sufficient evidence on record to show that they are entitled enhanced compensation in respect of acquired property. The appellants/original claimants examined themselves and stated what was the market value of acquired property on the date of notification U/Sec. 4 of the Land Acquisition Act i. e. 21st August, 1978. They also examined expert Mr. Shivrudra Dannappa Kevalram P.W. 17 at Exhibit 54. The expert in his evidence stated that he visited the spot for valuation. He carried out measurement of the houses. He 14 F. A. No. 281/1994 prepared plan and measurement. He also stated that he assessed the valuation taking into consideration DSR rates of 1978-79, local rates of the labour position. He also stated that at the time of showing the market value as on the date of notification U/Sec. 4, he considered depreciated value of the houses. He placed on record valuation report at Exhibit 54. As per this valuation report valuation of the acquired property in First Appeal No. 281/1994 is shown Rs. 48,824/- and in First Appeal No. 282/1994 is shown Rs. 40,475/-. Considering the valuation report, evidence of valuer and the evidence given by the claimants, I am of the opinion that the appellants/original claimants proved that they were entitled to enhanced compensation in respect of their acquired properties. 18. The Apex Court in the matter of Land Acquisition Officer Eluru and others Vs. Jasti Rohini (Smt and another reported in (1995) 1 Supreme Court Cases page 717, held that to determine the market value of the property on the date of notification U/Sec. 4, Court have to do some guess work. Portion in para 6 of that authority reads thus : "The question of fixation of market value is a paradox which lies at the heart of the law of compulsory purchase of land. The paradox lies in the facts that the market value concept is purely a 15 F. A. No. 281/1994 phenomenon evolved by the courts to fix the price of land arrived between the hypothetical willing buyer and willing seller bargaining as prudent persons without a medium (sic modicum) of constraints or without any extraordinary circumstances. But the condition of free market is the very opposite of the condition of the compulsory purchase which is ex hypothesis a situation of constraints. Therefore, to say, that for compulsory purchase, compensation is to be assessed and market value is to be determined in that state of affairs has to be visualised in terms by its direct opposite. To solve the riddle, courts have consistently evolved the principle that the present value as on the date of the compulsory acquisition comprised of all utility reached in a competitive field as on the date of the notification and the price on which a prudent and willing vendor and a similar purchaser would agree. The value of the land shall be taken to be the amount that the land if sold in the open market by a willing seller might be expected to realise from a willing purchaser. A willing seller is a person who is a free agent to offer his land for sale with all its existing advantages and potentialities as on the date of the sale and willing purchaser taking all factors into consideration would offer to purchase the land as on the date of the sale. Future suitability or adaptability of the land for any purpose shall not be taken into account. The compensation must, therefore, be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser as on the date of the notification published under Section 4(1). The disinclination of the seller to part with his land 16 F. A. No. 281/1994 and the urgent necessity of the vendee to purchase the land must, alike, be disregarded and neither of them must be considered as acting under compulsion." 19. In First Appeal No. 281/1994 claimant claimed enhanced compensation of Rs. 15,000/-. The Special Land Acquisition Officer awarded Rs. 16,111.50, whereas claimant claimed sum of Rs. 35,000/- in his reference U/Sec. 18, but restricted additional claim to the tune of Rs. 15,000/- only. Considering the evidence produced on record and particularly valuation report, I hold that claimants are entitled to additional compensation in respect of acquired property to the tune of Rs. 15,000/- with all statutory benefits as awarded by the Land Acquisition Officer in his award dated 07th July, 1979. 20. In First Appeal No. 282/1994 claimants claimed additional compensation of Rs. 15,000/-, though their claim U/Sec. 18 of the Land Acquisition Act was for Rs. 40,000/-. Considering the evidence on record and particularly the valuation report produced by P.W. 17, I hold that claimants are entitled to additional compensation in respect of acquired property to the tune of Rs. 15,000/- with all statutory benefits as awarded by Special Land Acquisition Officer in its award dated 07th July, 1979. 17 F. A. No. 281/1994 21. In the result both the appeals are allowed and enhanced compensation to the extent mentioned above is awarded in both the appeals. 22. No order as to costs. [K. K. TATED, J.] bsb/Dec. 10