1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.239 OF 2009 1) The State of Maharashtra Through the Collector,Nanded. 2) Special Land Acquisition Officer (Percolation tanks), Nanded. - APPELLANTS VERSUS 1) Sri Balaji Devasthan Through sole trustee – Balaramdas Guru Gopaldas Bairaji, Age: 73 Yrs., occu.Priest, R/o Dharmabad throgh General Power of attorney - Ramsharandaas Guru Ramdas Maharaj, Age: 36 Yrs., occu. Mahant, r/o Rammandir, Nanded. 2) Maharashtra State Road Transport Corporation, Through it’s Divisional Controller, Nanded. - RESPONDENTS 2 ***** Mrs.BR Khekale, AGP for Appellants; Mr.PV Mandlik, Sr.Counsel for Resp.No.1; Mr.MK Goyanka, Advocate for Resp.No.2-Intervenor. ----- WITH CROSS APPEAL/OBJECTION ST.NO.12887 OF 1994 with CA NO.11186/2009. Shri Balaji Deasthan Through the trustee – Shri Mahant Ramsharandas Guru Ramdas Maharaj Bairagi, Age: 50 Yrs., occu. President/Mahant, r/o Rammandir, Nanded. - APPELLANT VERSUS 1) The State of Maharashtra, Through the Collector, Nanded. 2) The Secial Land Acquisition Officer, Perculation tank, Nanded. 3) Maharashtra State Road Transport Corporation, Through its Divisional Cotroller, Nanded. - RESPONDENTS 3 ____ Mr.PV Mandlik, Sr. Counsel for appellant; Mrs.BR Khekale, AGP for Resp.Nos. 1 & 2; Mr.MK Goyanka, Advocate for Resp.No.3-MSRTC. ......... CORAM : K.U.CHANDIWAL, J. DATE : 24th March, 2010. JUDGMENT: 1) Heard learned Counsel for the respective parties extensively. 2) The First Appeal is admitted on 14.6.1994. Thereafter the claimant/original owner has preferred Cross-objection/appeal. 3) The State in its appeal feels that the Award of enhancement by the learned Reference Court in L.A.R.No. of 95/1986, treating non- agriculture potentiality of the acquired 72 R. land and evaluating it @ Rs.2/- per sq.ft., is unjust. The State feels, it should be interfered 4 with. 4) There is intervention application by the acquiring body/MSRTC as the outcome of the present First Appeal or Cross-Objection/appeal will directly be affecting its rights and interest. The intervention application is already allowed. 5) There is cross-objection/appeal of the original claimant/owner, which desires to translate the enhancement from Rs.2/- per sq.ft., having been so done in L.A.R.No.95/1986 to Rs. 4/- per sq.ft. 6) The undisputed facts are, the land Survey 592 belongs to the trust from which 72 R. land was subject of acquisition by virtue of Notification under Section 4 of the Land Acquisition Act dated 2nd July, 1981. The declaration under Section 6 of the Act was dated 28th March, 1984 while the Award by the Special 5 Land Acquisition Officer (for short, SLAO) is dated 25th march, 1985. The acquisition was naturally for a bus-stand of Dharmabad for the use of public at large, owned by MSRTC, the intervenor. 7) Before the learned Reference Court, no sale instance was put-forward, barring evidence of claimant’s GPA – Ramchandra (Exhibit-19). He reiterate, that the population of Dharmabad is around 40,000/-. The present bus-stand and other shops are 100 ft. away from the acquired land. There are other factories, oil mills, college adjacent to the acquire land. He candidly agreed, in the rest left over land, there are huts. The claimant had lodgment of claim under Section 9 of the Act @ Rs.4/- per sq.ft. 8) The sale instance between Jagdish and Jankabai was tried to be coined. The sale-deed is dated 21.2.1984, which is at Exhibit-72, for an area of 54 ft.x 15 ft. between Jankibai to 6 Jagdish for a consideration of Rs.3,000/-. The proximity of the said plot is certainly an eye- opener as it is indeed adjacent to the open place of Balaji Mandir. The rate of calculation comes to Rs.3.70 per sq.ft.. This sale-deed was definitely of post-notification under Section 4 of the Act dated 2nd July, 1981. There is no bar nor injunction for the learned Judge to consider the sale instances if there was no vital document to arrive at the conclusion of the rates or the potentiality of the acquired property. In a matter of land acquisition, and particularly, drawing of an Award, Section 23 of the Act takes care about the market value, assessment of the same and the law also permits little guess work by the learned SLAO or by the learned Reference Court. There cannot be expectation of a straight-jacket formula to arrive at price of a particular piece of land. Several factors as to potentiality, development in the area, its growth, fast up-keeping organizations, change in the revenue jurisdiction of the area etc.play 7 revolving role. As it is, the property in question was acquired for the purposes of the bus stand in the vicinity of Dharmabad. 9) The learned SLAO in paragraph 3 of his Award, while giving the details of situation and description, has observed as under - 3. Situation & description : The lands under acquisition are situated within the revenue limits of village Balapur Ratnali, Tq. Biloli District Nanded. Dharmabad is a big village and its population is more than 10,000. it is situated at a distance of above (20) kilometers from taluka head quarter Biloli. There is educational facility of College. The village has got transport facility by State Transport/Railway. There is industrial activity at this village. The lands in question are at a distance of (just adjacent) from village goathan. The weekly bazar place is Dharmabad, which is (nil) kms. away from Balapur and Ratnali village. There is non-agricultural potentiality to the lands under acquisition. All the lands under acquisition are Zirayat lands and are classified on the basis of assessment per as below.” 10) It is thus more than clear, the learned 8 Special Land Acquisition Officer was conscious about the feasibility of the property under acquisition. 11) The Chief Officer of Dharmabad Municipal Council had informed that few agricultural lands are sold @ Rs.10,000/- per acre while non- agricultural lands are sold at Rs.10/- per sq.ft. The SLAO had sales statistics of last five years of village Ratnali, Dharmabad, Tq. Biloli, District Nanded. 42 sale-transactions being taken place which were of agricultural properties. The learned SLAO drew a group of transaction of lands. 12) The learned Reference Court had occasion to browse 7/12 extracts of the lands and its land revenue per acre is about Rs.1.70 ps. No crops were taken in the year 1983-84. 7/12 extracts also indicate existence of the ST bus stand, road, hotel and huts. This document added to the Reference Court to hold that the acquired land 9 has got non-agricultural potentiality. 13) All these factors added for the learned Judge to consider the price of the acquired 72 R.land, at Rs.2/- per sq.ft. for 78,420 sq.ft. The assessment by the learned Judge in the scenario of above discussion is in tune with the available record, consequently the grievance of State or for that purpose, the acquiring body – MSRTC, does not sound on rationality coupled with the legal position. The State Appeal being First Appeal No.239/1994 is dismissed. 14) So far as Cross-objection/appeal of landholder for enhancement is concerned, learned Sr.Counsel Mr. Mandlik extensively read the Award of the SLAO and also the findings of the learned Reference Court. He stressed, a judicial note for enhancement in the prices is a sequel to the situation, which should not have been ignored. The learned Counsel submits that in the light of non-agricultural potentiality of the acquired 10 property being expected, the town planner, having indicated that it would fetch Rs. 10/- per sq.ft., the Court should enhance the same at Rs. 4/- per sq.ft. 15) There is no controversy that there should be a judicial note about the magnification of the rates in the developing areas. The high potentiality proximity to prominent public places of transport draws attention. 16) Identical submissions were made before the learned Reference Court. The learned Reference Court, having browsed the letter of Chief Officer of Municipal Council, Dharmabad, did not correctly accept the same as for the purposes of market value of the property in terms of Section 23 of the Land Acquisition Act, irrespective of some guess work, the nucleus flows with the relevant sale instances around the notification under Section 4 of the Act, as it provides and governs precept to the approach of 11 the Court. Though assessment desires to receive a liberal construction, however, it could not be fetched beyond tolerance and in the absence of there being coherent evidence from the landholders. The learned Judge was justified in computing the value of the acquired land at Rs. 2/- per sq.ft., in tune with the sale-deed at Exhibit-22 dated 21st February, 1984. 17) Then comes one of the ground raised by acquiring body-MSRTC. The Counsel submits that the possession of the land was taken on 13th January, 1986, for which he took me to the panchanama drawn by Talathi. Though this panchanama states that 72 R. land from Survey No. 592, Balapur of Balaji Mandir Trust was handed over by the Talathi to MSRTC, it will not translate into construing that indeed this should be the date of possession of the property. The Award dated 25.3.1985 in unequivocal terms specify that the land under acquisition was already in possession of MSRTC. I quite see 12 specific date as 1978 is not referred , but it is certainly somewhere after the notification under Section 4 which was dated 2nd July, 1981 and the learned Judge did not commit any mistake in treating the date of possession as 2nd July, 1982. 18) Taking survey of all the facts, the Cross-objection/appeal moved by the land- owners/original claimant, loose significance, it being without iota of documentary evidence. Hence, order. 19) The First Appeal No.239/1994 and Cross- objection/appeal dismissed. CA dismissed. No costs. sd/- (K.U.CHANDIWAL) JUDGE bdv/fa239.94 Authenticated copy (BD VADNERE,PS)