ash 1 fa-918,919,1093nxobjns IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.918 OF 1999 WITH FIRST APPEAL NO.919 OF 1999 WITH CROSS OBJECTION ST.NO.10859 of 2000 IN FIRST APPEAL NO.918 OF 1999 WITH FIRST APPEAL NO.1093 OF 1992 WITH CROSS OBJECTION STAMP NO.21073 OF 1993 IN FIRST APPEAL NO.1093 OF 1992 FA NO.918 OF 1999 WITH CROSS OBJECTION: State of Maharashtra, ) ( through The Special Land Acquisition ) Officer, Minor Irrigation, Nashik ) ) .. Appellant (Org. Opponent ) Vs 1. Mr. Hiralal Narayan Pardeshi, ) (since deceased and heirs being ) Nos.2 and 3 already on record, his ) name is deleted vide order below ) Exhibit-10) ) 2. Mr. Prakash Hiralal Pardeshi Chobe, ) Age 32 years, Occ : Service, ) 3. Mr. Vinod Hiralal Pardeshi Chobe, ) Age 29 years, Occ: Service, ) Both are residents of Chandwad, ) Tal. Chandwad, District : Nashik. ) .. Respondents (Org. Claimants ) -- ash 2 fa-918,919,1093nxobjns FA NO.919 OF 1999 State of Maharashtra, ) ( through The Special Land Acquisition ) Officer, Minor Irrigation, Nashik ) ) .. Appellant (Org. Opponent ) Vs Mr. Vasant Narayan Pardeshi, ) (since deceased through his legal heirs:- ) 1. Shri Ulhas Vasantrao Choube ) (Pardeshi), son, Age about 40 years, ) 2. Shri Dilip Vasantrao Choube ) (Pardeshi), son, Age about 33 years, ) 3. Shri Sanjay Vasantrao Choube ) (Pardeshi), son, Age about 26 years, ) 4. Smt. Sunanda Vijaykumar Talria, ) Daughter, Age about 37 years, ) 5. Smt. Sunita Sandip Awasthi, ) Daughter, Age about 29 years, ) 6. Smt. Kamalabai Vasantrao Choube ) (Pardeshi), wife, Age about 60 years, ) All residing at & Post Chandwad, ) Tal. Chandwad, District : Nashik. ) .. Respondents (Org. Claimants ) -- FA NO.1093 OF 1992 WITH CROSS OBJECTION: State of Maharashtra, At the instance of ) The Special Land Acquisition Officer No.1, ) Nashik. ) .. Appellant (Org. Opponent ) Vs ash 3 fa-918,919,1093nxobjns 1. Ankush Namdeo Jadhav, ) Age 60 years. ) 2. Pandurang Ankush Jadhav, ) Aged 30 years, ) Both residents of Chandwad, ) Taluka – Chandwad, Dist. Nashik. ).. Respondents ( Org. Claimants ) -- Shri A.R. Patil, AGP for the Appellant – State in all the Appeals. Shri P.N. Joshi for the Respondents in all the Appeals. -- CORAM : A.S. OKA, J SUBMISSIONS WERE HEARD ON : 20TH OCTOBER, 2011 JUDGMENT PRONOUNCED ON : 20TH DECEMBER, 2011 JUDGMENT : . These Appeals can be disposed of by a common Judgment and Order. The First Appeal Nos.918 and 919 of 1999 are preferred by the State of Maharashtra for taking an exception to the common Judgment in Land Acquisition Reference Nos.592 and 593 of 1990 under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”). The First Appeal No.918 of 1999 arises out of Land Acquisition Reference No.593 of 1990. The First Appeal N. 919 of 1999 challenges the Judgment and Award passed in Land Acquisition Reference No.592 of 1990. The lands subject matters of ash 4 fa-918,919,1093nxobjns these two Appeals are the lands bearing Gat No.59/1 and Gat No.60 situated at Village Wadbare, Taluka Chandwad, District – Nashik. The area of land bearing Gat No.60 is 9 Ares. The area of land bearing Gat No.59/1 is 60 Ares out of which the area of 14 Ares is a Potkharaba land. A Notification under Section 4(1) of the said Act in respect of both the lands was published on 6th September, 1984. An Award under Section 11 of the said Act was made on 28th February, 1986. The Land Acquisition Officer offered the market value at the rate of Rs.5,000/- per Hectare. The purpose of acquisition is construction of the M.I. Tank at Rahud. The land required was likely to get submerged in the water of the Tank. 2. The Claimants claimed market value at the rate of Rs. 1,00,000/- per Hectare. In Land Acquisition Reference No.593 of 1990, a compensation was prayed for on account of injurious affection to the remaining land of the Claimants which was not acquired. A sum of Rs.59,500/- was claimed on account of injurious affection. Statutory benefits were also claimed. In Land Acquisition Reference No.592 of 1990, the market value was fixed by the Reference Court at the rate of Rs.46,650/- on the basis that the acquired land bearing Gat No.60 was a Jirayat Land. As far as Land Acquisition Reference No.593 of 1990 is concerned, the market value was fixed at the rate of Rs. 70,000/- per Hectare by treating the area of 46 Ares out of Gat No.56/1 ash 5 fa-918,919,1093nxobjns as Bagayat Land. For Potkharaba land, rate of Rs.1,500/- per Hectare was awarded. In both the cases, statutory benefits under Section 23(1-A), 23(2) and 28 of the said Act were granted. As the possession of the acquired land was taken over on 1st June, 1983, interest under Section 34 of the said Act was granted from the said date which is prior to the date on which the notification under Section 4(1) of the said Act was issued. Even the interest under Section 23(1-A) of the said Act was granted from 1st June, 1983. There is a Cross-objection filed by the Claimants in First Appeal No.918 of 1999 claiming enhancement in the market value. By the Cross-objection, the market value was claimed at Rs.86,207/- per Hectare. Compensation was also claimed for 100 coconut trees. In First Appeal No.919 of 1999, there is no Cross- objection preferred by the Claimants. 3. The First Appeal No.1093 of 1992 has been preferred by the State of Maharashtra by which the challenge is to the Judgment and Award in Land Acquisition Reference No.112 of 1985. The Notification under Section 4(1) of the said Act was earlier issued on 2nd December, 1982 in respect of the land bearing Gat No.1/2 at Village Chandwad, Taluka – Chandwad, District – Nashik in respect of an area of 67 Ares. The purpose of acquisition is setting up water supply scheme for Chandwad. Ultimately, the land admeasuring 17 Ares was acquired. The Award under Section 11 of the said Act was made on 23rd March, ash 6 fa-918,919,1093nxobjns 1984 by which the market value at the rate of Rs.10,390/- per Hectare was granted. In the Reference, the market value has been claimed at Rs.60,000/- per Hectare. It is contended that the possession of the entire 67 Ares of the land was taken over in the year 1982. Out of which, the area of 50 Ares was released from the acquisition in the year 1984. As the State Government retained the possession of an area of 50 Ares for a period of two years, the compensation of Rs.5,000/- Per Hectare was claimed. By the impugned Award, the market value was fixed at Rs.1,10,000/- per Acre. As the possession was taken over on 1st April, 1982, the interest under Section 34 and interest under Section 23(1-A) of the said Act was granted from the date of possession. In addition, a sum of Rs.10,000/- was granted on account of damages for a period of two years for loss on account of deprivation of possession over the area of 50 Ares. In First Appeal No.1093 of 1992, there is a Cross-objection filed by the Claimants claiming the enhancement in market value by Rs.19,802.70 ps. 5. The learned AGP has taken the Court through both the judgments. He submitted that the first error committed by the Reference Court is of granting statutory benefit of interest under Sections 23(1-A), 28 and 34 of the said Act from a date prior to the publication of the Notification under Section 4(1) of the said Act. In First Appeal No.918 of 1999 and First Appeal No.919 of 1999, the learned AGP contended that the Sale Deed dated 22nd December, 1983 ash 7 fa-918,919,1093nxobjns at Exhibit-22 was not proved to be in respect of a comparable land. He submitted that the Trial Court has not considered the aspect of comparability at all while determining the market value. The learned AGP submitted that if the Sale instance at Exhibit-22 is kept out of consideration, then it was a case of no evidence. Adverting to the First Appeal No.1093 of 1992, the learned AGP submitted that even in this case, none of the sale instances relied upon by the Claimants are in respect of comparable lands. He submitted that the statutory benefit of interest could not have been granted from the date prior to the Notification under Section 4(1) of the said Act. He submitted that granting compensation for a period of two years in respect of area of 50 Ares which was released from acquisition is beyond the scope of powers under Section 18 of the said Act and hence, that part of the impugned Award will have to be quashed and set aside. 6. Learned counsel appearing for the Claimants has taken the Court through the evidence. He submitted that there was evidence to show that the land subject matter of Sale Deed at Exhibit-22 was a comparable land. He invited attention of the Court to the evidence of Shri Vinod H. Pardeshi who deposed on behalf of the Claimants. He, therefore, submitted that infact a case for enhancement in the market value was made out. As far as First Appeal No.1093 of 1992 is concerned, he submitted that reliance was rightly placed on the sale ash 8 fa-918,919,1093nxobjns instance of the Sale Deed dated 29th November, 1980 at Exhibit-17. He pointed out that though the land subject matter of the sale instance at Exhibit-22 admeasures 147.42 sq. meters, the rate reflected from the said Sale Deed in respect of comparable land was Rs.230/- per sq. meter. He submitted that therefore, the market value fixed by the Reference Court cannot be faulted with and in fact a case for enhancement is made out. FINDINGS IN FIRST APPEAL NO.918 AND 919 OF 1999: 7. I have carefully considered the submissions. Firstly I am dealing with the First Appeal Nos.918 of 1999 and First Appeal No.919 of 1999 arising out of Land Acquisition Reference No.592 and 593 of 1990. The Award under Section 11 of the said Act is also common. The Award relates to not only the acquired land but for other acquired lands situated at Villages at Wadbare and Chandwad in Taluka Chandwad, District – Nashik. In the Award, it is noted that the Village Wadbare is at a distance of 6 kms from Taluka Head Quarters of Chandwad. It is stated that one M.I. Tank has been constructed from 7 kms from Chandwad on Bombay-Agra Road. The lands submerged in this tank are found in these two Villages i.e Wadbare and Chandwad. The Land Acquisition Officer observed that there are non-agricultural activities at Chandwad. Such activities were absent in the Village ash 9 fa-918,919,1093nxobjns Wadbare. The Land Acquisition Officer observed that the lands under the acquisition were Jirayat lands. He divided the lands into various groups depending upon its revenue assessment. As far as the village Wadbare is concerned, Jirayat lands falling in Groups I to IV were valued at Rs.5,000/-, Rs.5,500/-, Rs.6,000/- and Rs.6,500/- respectively per Hectare. In case of Bagayat lands included in Groups I to IV, the same were valued at Rs.7,500/-, Rs.8,250/-, Rs.9,000/- and Rs.9,750/- per Hectare respectively. 8. Now it is also necessary to make a reference to the evidence of the witnesses and the sale instances produced. The Land Acquisition Reference Nos.592 and 593 of 1990 subject matter of First Appeal Nos.918 and 919 of 1999 were decided by a common Judgment. The evidence recorded is also common. As stated earlier, the lands subject matter of acquisition are bearing Gat No.59/1 and 60 situated at Village Wadbare, Taluka -Chandwad, District – Nashik. The relevant date for determination of the market value is 6th September, 1984. The Land Acquisition Officer fixed the market value as stated in earlier paragraph. One Vinod H. Pardeshi deposed in both the References on behalf of the Claimants. He claimed that though the Land Acquisition Officer accepted that the acquired lands were Bagayat lands, the market value in respect of Jirayat land has been granted. He stated that the acquired lands are situated at a distance of 200 meters from Mumbai- ash 10 fa-918,919,1093nxobjns Agra Road. He claimed that there were 100 coconut trees planted on the acquired land in June, 1980. He stated that the coconut trees were of hawai supreme quality which normally start giving fruits after three years. He claimed compensation at the rate of Rs.1,000/- per tree. He stated that due to acquisition of well on the acquired land for which no compensation has been paid, the remaining land held by him has become Jirayat and therefore, compensation of Rs.60,000/- may be awarded on the ground of injurious affection. The said witness relied upon the sale instance in the form of a judgment in Land Acquisition Reference No.112 of 1985 (Exhibit-23) of a land at village Chandwad which is subject matter of challenge in First Appeal No.1093 of 1992. He stated that the said land of Ankush was at a distance of 1 and 1/2 kms from the acquired lands. The witness stated that the villages Chandwad and Rahud are adjacent villages. The witness was cross- examined by the learned Government Pleader. Various suggestions given in the cross-examination have been denied by the witness. The Claimants examined one Ramesh Baban Nikam as a witness. He is the purchaser of the land bearing Gat No.66 at Village Rahud which was purchased by him by Sale Deed ( Exhibit – 22 ) dated 26th December, 1983. He stated that the said land was Bagayat land which was purchased by him for the price of Rs.25,000/-. He stated that it was at a distance of 1 km from the acquired land. He admitted that he was the owner of the land bearing Gat No.52 but he denied the correctness of ash 11 fa-918,919,1093nxobjns the suggestion that the land purchased by him under the Sale Deed and the said land bearing Gat No.52 are adjoining each other. He stated that the village Wadbare was on the western side of the village Rahud and the land purchased by him was on the western side of the same village. He stated that the distance between the Villages Rahud and Chandwad was 7 kms. He stated that village Rahud was closer to village Chandwad than the village Wadbare. He denied the correctness of the suggestion that he has purchased the acquired land at excessive price as it was abutting his other land. 9. At this juncture, it will be necessary to make a reference to the Award under Section 11 of the said Act. While mentioning the location of the land, the Land Acquisition Officer mentioned that the lands were Jirayat lands. He has observed that the Village Wadbare is situated at a distance of about 6 kms from the village Chandwad and the village Rahud is at a distance of 7 kms from the village Chandwad. He stated that the lands in the villages Wadbare and Chadwad were to get submerged due to construction of water of M.I. Tank at village Rahud for which purpose the lands have been acquired. The Land Acquisition Officer observed that there were non-agricultural activities at the village Chandwad proper but these activities are absent at the villages Wadbare and Rahud. ash 12 fa-918,919,1093nxobjns 10. As far as nature of the acquired land is concerned, the Court found that the Land Acquisition Officer has himself treated the land bearing Gat No.59/1 as a Bagayat land. Therefore, the Reference Court has rightly taken the said land as a Bagayat land for the purpose of determination of market value. The Trial Court observed that as far as the land bearing Gat No.60 is concerned, the Claimants have not produced 7/12 extract for determining the nature of the land. The learned Judge further observed that 7/12 extract of the land bearing Gat No.60 which is available on record shows that Jirayat crops like Jawar, Bajra were taken on the said land. Therefore, the learned Trial Judge treated the land bearing Gat No.60 as Jirayat land. In absence of any documentary evidence on record as regards the land bearing Gat No.60 being a bagayat land, there is no error in the view taken by the Trial Court that it was a Jirayat Land. 11. As far as Sale Deed at Exhibit-22 is concerned, it is executed about 8 months prior to the relevant date. The land is situated at Village Rahud. Perusal of the said Sale Deed shows that there was one mango tree on the said land and the land was sold along with the right to draw water from the well on rental basis. As compared to the acquired land, these two are the positive factors. The market value reflected from the Sale Deed Exhibit-22 is Rs.86,207/- per Hectare. A deduction was made by the Reference Court on account of ash 13 fa-918,919,1093nxobjns the fact that the price of the land includes the price of mango tree and the right to draw water from the Well. Moreover, the land was at Village Rahud. Considering these factors, the learned Trial Judge reduced the market value to Rs.73,000/-. From the Sale Deed, it appears that the assessment of the said land was Rs.3.45 paise. The Land Acquisition Officer had divided the lands into various groups depending upon its assessments. After considering the assessment of the acquired lands, the same fall in Group-I. The land subject matter of the Sale Deed falls in Group-III. Therefore, a further deduction of Rs.3,000/- per Hectare was correctly made by the Trial Court for bringing the land value at par with the land falling in Group-I. The learned Judge rightly observed that as the land was acquired for submergence of the water from the M.I.tank, there was no possibility of increase in the market value during the span of 8 to 9 months. Hence, the market value of Rs.70,000/- per Hectare for Bagayat land as of 26th December, 1983 was fixed as of 6th September, 1984. Therefore, the market value of the land bearing Gat No.59/1 was fixed at the rate of Rs.70,000/- per Hectare. The learned Judge rightly observed that the market value of Bagayat land is normally 1 and ½ times the market value of Jirayat land. Therefore, the market value of the land bearing Gat No.60 was fixed at Rs. 46,650/-. The said approach is absolutely correct. As far as Potkharaba land out of Gat No.59/1 is concerned, the Land Acquisition Officer had offered market value at Rs.200/- per Hectare. The Reference Court has ash 14 fa-918,919,1093nxobjns proportionately increased the rate to Rs.1,500/- which is reasonable. As far as sale instance at Exhibit-23 is concerned, it is in the form of an Award of the District Court. The Reference Court observed that the acquired land at Village Wadbare was to get submerged in the water of the M.I. Tank and the land subject matter of Exhibit-23 was at Chandwad. The purpose of acquisition of the land subject matter of Exhibit-23 was water supply scheme at Chandwad. However the land subject matter of sale instance at Exhibit-22 is at a distance of 1 km from the acquired land and the land subject matter of the said Reference (Exhibit-23) was at a distance of 1 and ½ kms. Moreover, the lands at Chandwad had non-agricultural potential. Therefore, the sale instance of the land which is closer to the acquired land will have to be taken into consideration. That is how the market value has been determined on the basis of the sale instance at Exhibit-22. 12. Perusal of the evidence of Vinod H. Pardeshi examined on behalf of the Claimants shows that there is no material placed on record for determining the market value of the coconut trees. There is no evidence adduced as regards the loss allegedly caused due to the injurious affection. Thus, as far as the market value is concerned, the findings of the Reference Court are supported by the evidence on record. The market value is reasonable. Hence, no case for disturbing the said market value is made out. ash 15 fa-918,919,1093nxobjns FINDING IN FIRST APPEAL NO.1093 OF 1992 13. Now turning to the other First Appeal being First Appeal No.1093 of 1992, it must be noted that the land is situated at Village Chandwad. The Notification under Section 4(1) of the said Act is dated 2nd December, 1982. The market value fixed by the Reference Court in the present case is Rs.1,10,000/- per Hectare. 14. It is the case of the Claimants that though the area of land is 17 Ares, infact the State Government had proposed acquisition of 67 Ares and the possession of the entire area was taken over. It is alleged that thereafter the area of 50 Ares was released from the acquisition. Apart from claiming market value at enhanced rate, the Claimants claimed compensation at the rate of Rs.5,000/- per year for the said area of 50 Ares for a period of two years which has been granted by the Reference Court. 15. The Claimants examined himself. He stated that his land was adjacent to Bombay Agra Road. He stated that various colleges are situated around the acquired land and there is an office of Panchayat Samiti close to the acquired land. He stated that the acquired land was Bagayat land. ash 16 fa-918,919,1093nxobjns 16. The Claimants claimed one Shri Ashok Dondu Vyavhare, the Chairman of Chandwad Merchant’s Co-operative Bank who deposed that his Bank purchased the land admeasuring 147.42 sq. meters by a registered Sale Deed dated 20th November, 1980 for the price of Rs. 34,000/-. He stated that consideration was paid as per the prevailing market value. He stated that the acquired land was seen by him and the same is more valuable than the plot purchased by his Bank. However, in the cross-examination he admitted that the land purchased by him was near old habitation in the Village and whereas the acquired land was near hillocks. The State Government also examined one Bhika Baburao Kotwal as a witness who purchased the land admeasuring 2 Hectares and 30 Ares out of Gat No.68 of Village Chandwad by a Sale Deed dated 24th September, 1981 for consideration of Rs.23,500/-. He stated that the land was a Jirayat Land. He produced the original Sale Deed in the Court. In the cross-examination, he stated that there is no main road for approaching the land purchased by him and there is a cart road available. He stated that the land was on the northern side of Bombay Agra Road. On North side, there is a development and therefore, the market value on the northern side of Bombay Agra Road was more than the land on the southern side of Bombay Agra Road. The second witness examined by the State Government is Sindhubai Dasharath Nilkanth, the purchaser of the ash 17 fa-918,919,1093nxobjns land bearing Gat No.324 admeasuring 40 Ares for consideration of Rs. 5,560/- situated at Chandwad. In the cross-examination, she stated that the land purchased by her was at a distance of 5 kms from the main habitation of Chandwad and there was only a cart road available for approaching the said land. 17. As far as the sale instance of land purchased by the Chandwad Merchant’s Co-operative Bank is concerned, the Trial Court has kept it out of consideration as the land was purchased for non- agricultural use. In the examination-in-chief, the witness Vyavhare has not stated that the land was purchased for a particular use. The question is whether on the date of sale, the land was already converted into non-agricultural use. It must be noted here that it is not the case made out that the land was already converted into a non-agricultural use. But the land was near habitation and the acquired land is near