... 1 ... IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1072 OF 1989 The State of Maharashtra ...Appellant Vs. Hari Dattu Patil ...Respondent Shri K.K. Tated, A.G.P. for the Appellant. Mr Rajiv Patil for the Respondent. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE ON WHICH JUDGMENT IS RESERVED : MAY 02, 2006. DATE ON WHICH JUDGMENT IS RESERVED : MAY 02, 2006. DATE ON WHICH JUDGMENT IS RESERVED : MAY 02, 2006. DATE ON WHICH JUDGMENT IS PRONOUNCED : JULY 14, 2006. DATE ON WHICH JUDGMENT IS PRONOUNCED : JULY 14, 2006. DATE ON WHICH JUDGMENT IS PRONOUNCED : JULY 14, 2006. JUDGMENT: JUDGMENT: JUDGMENT: 1. The Respondent is the original claimant in a reference under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act). The acquisition relates to lands situated at village Panvel, Taluka Panvel, District Raigad. The lands subject matter of the Appeal were notified for acquisition by a notification dated 03rd February, 1970 issued under section 4 of the said Act. The award under section 11 of the said Act was made on 13th February, 1986 by which market value at the rate of Rs.2.70/- per sq. meter was offered to the Respondent. According to the case of the Respondent-Claimant, in response to the notice under section 9(3)(4) of the said Act, the Respondent claimed compensation at the rate of Rs.20/- per sq. ... 2 ... yard. By the impugned judgment and award dated 29th February, 1988, Reference Court fixed the market value at the rate of 15/- per sq. meter and granted statutory benefits to the Respondent. 2. Present Appeal is preferred by the Appellant-State of Maharashtra for challenging the impugned judgment and award on the ground that the market value awarded is excessive. The Respondent-Claimant has filed a cross-objection in which market value is claimed at the rate of 25/- per sq. meter. 3. Shri Tated, the learned A.G.P. appearing for the State submitted that the compensation awarded by the Reference Court is extremely on the higher side. He submitted that considering the evidence on record market value could not have been fixed at the rate of Rs. 15/- per sq. meter. Shri Rajiv Patil appearing for the Respondent-Claimant placed reliance on decision of the Division Bench of this Court in the Division Bench of this Court in the Division Bench of this Court in the case of Nama Padu Hudar & Ors. Vs. State of case of Nama Padu Hudar & Ors. Vs. State of case of Nama Padu Hudar & Ors. Vs. State of Maharashtra (First Appeal No.754 of 1986 & other Maharashtra (First Appeal No.754 of 1986 & other Maharashtra (First Appeal No.754 of 1986 & other connected Appeals) connected Appeals) connected Appeals) delivered by a Division Bench of this Court on 25th and 26th February, 1992. He submitted that the said decision has attained ... 3 ... finality. He submitted that as the said decision relates to acquisition of the land at village Panvel which is covered by notification of the same date, the present Appeal will be governed by the said decision of this Court. He invited my attention to the evidence on record. He pointed out that the evidence shows that acquired land is situated at distance of 480 meters away from Bombay-Pune National Highway and therefore, in view of the decision of the Division Bench, the Respondent will be entitled to market value at the rate of Rs.25/- per sq. meter. He submitted that as award under section 11 of the said Act was made after 24th September, 1984, the Respondent will be entitled to claim compensation at a rate more than Rs.20/- per sq. yard (i.e. about Rs.23/- per sq. meter) which was claimed in response to notice under section 9(3)(4) of the said Act as section 25 of the said Act as amended by the Amendment Act No.68 of 1984 will apply to the present case. He placed reliance on decision of the Apex Court dated 06th March, 2006 in Apex Court dated 06th March, 2006 in Apex Court dated 06th March, 2006 in Civil Appeal No.1557 of 2006 (Shantadevi Hariram Civil Appeal No.1557 of 2006 (Shantadevi Hariram Civil Appeal No.1557 of 2006 (Shantadevi Hariram Ruparel Vs. Special Land Acquisition Officer & Anr.). Ruparel Vs. Special Land Acquisition Officer & Anr.). Ruparel Vs. Special Land Acquisition Officer & Anr.). He also placed reliance on unreported decision of the learned Single Judge of this Court dated 29th March, learned Single Judge of this Court dated 29th March, learned Single Judge of this Court dated 29th March, 2006 in First Appeal No.111 of 1992 (Hanif Ibrahim 2006 in First Appeal No.111 of 1992 (Hanif Ibrahim 2006 in First Appeal No.111 of 1992 (Hanif Ibrahim Navedkar Vs. State of Maharashtra). Navedkar Vs. State of Maharashtra). Navedkar Vs. State of Maharashtra). ... 4 ... 4. Shri Tated, learned A.G.P. has generally replied to the submissions made by Shri Rajiv Patil on cross-objection and in particular to the submissions regarding applicability of amended section 25 of the said Act. Shri Tated placed reliance on judgment and order dated 25th August, 2005 delivered by a Division Bench of this Court in First Appeal No.430 of 1993 First Appeal No.430 of 1993 First Appeal No.430 of 1993 (State of Maharashtra Vs. Dhanaji Kamalu Joshi). (State of Maharashtra Vs. Dhanaji Kamalu Joshi). (State of Maharashtra Vs. Dhanaji Kamalu Joshi). He also placed reliance on two more decisions of the same Division Bench in case of Cosmopolitan Co-operative Division Bench in case of Cosmopolitan Co-operative Division Bench in case of Cosmopolitan Co-operative Housing Society Vs. Special Land Acquisition Officer Housing Society Vs. Special Land Acquisition Officer Housing Society Vs. Special Land Acquisition Officer (First Appeal No.575 of 1995) decided on 23rd (First Appeal No.575 of 1995) decided on 23rd (First Appeal No.575 of 1995) decided on 23rd September, 2005 and in the case of State of September, 2005 and in the case of State of September, 2005 and in the case of State of Maharashtra Vs. Govind Goma Gowari & Ors. (First Maharashtra Vs. Govind Goma Gowari & Ors. (First Maharashtra Vs. Govind Goma Gowari & Ors. (First Appeal No.710 of 1989). Appeal No.710 of 1989). Appeal No.710 of 1989). He invited my attention to the decision of the Apex Court in the case of Land Apex Court in the case of Land Apex Court in the case of Land Acquisition Officer Vs. B.V. Reddy and Sons (2002 Acquisition Officer Vs. B.V. Reddy and Sons (2002 Acquisition Officer Vs. B.V. Reddy and Sons (2002 (3) Supreme Court Cases Page 463). (3) Supreme Court Cases Page 463). (3) Supreme Court Cases Page 463). He pressed into service decision of the Supreme Court in the case of Supreme Court in the case of Supreme Court in the case of Dadu Yogendrenath Singh Vs. The Collector (A.I.R. Dadu Yogendrenath Singh Vs. The Collector (A.I.R. Dadu Yogendrenath Singh Vs. The Collector (A.I.R. 1977 Supreme Court Page 1128). 1977 Supreme Court Page 1128). 1977 Supreme Court Page 1128). He pointed out that the Apex Court has not granted any stay to the operation and execution of the decision of Division Bench of this Court in the case of Cosmopolitan Co-operative Housing Society (supra). He submitted ... 5 ... that the decision of the Apex Court in the case of Shantadevi Ruparel (supra) does not lay down any ratio. He submitted that in any case the decision of the Apex Court in the case of Land Acquisition Officer Vs. B.V. Reddy & Sons (supra) holds the field as it is delivered by a bench consisting of three Hon’ble Judges of the Supreme Court whereas, the decision of Shantadevi Ruparel (supra) is by a bench consisting of two Hon’ble Judges. On merits he submitted that the case of the Respondent will fall in category IVA fixed by the case of Nama Padu Hudar (supra). He, therefore, submitted that in any event the Respondent is entitled to market value at rate of more than Rs.20/- per sq. meter. 5. I have considered the submissions. In the award under section 11 of the said Act which is forwarded alongwith the reference under section 18 of the said Act it is stated that notice under section 9 of the said Act was served to the Respondent-Claimant and the Respondent-Claimant has submitted a claim of Rs.20/- per sq. yard in response to the said notice. The date of the award under section 11 is 13th April, 1986. The submission regarding applicability of the amended section 25 of the said Act will have to be ... 6 ... considered first. The Land Acquisition (Amendment) Act, 1984 (Act No.68 of 1984) was brought into force on 24th September, 1984. Prior to the amendment carried out by the said Act, section 25 of the said Act read as under: "25. Rules as to amount of compensation.- (1) When the applicant has made a claim to compensation, pursuant to any notice given under Section 9, the amount awarded to him by the court shall not exceed the amount so claimed or to be less than the amount awarded by the Collector under Section 11. (2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the court shall in no case exceed the amount awarded by the Collector. (3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the court shall not be less than, and may exceed, the amount ... 7 ... awarded by the Collector." The Amendment to section 25 was made by Act No.68 of 1984 which was brought into force on 24th September, 1984. After amendment, section 25 of the said Act reads thus: "25. Amount of compensation by court not be lower than the amount awarded by the Collector.- The amount of compensation awarded by the court shall not be less than the amount awarded by the Collector under Section 11." 6. Thus, before the amendment, it was not open for the claimant to claim an amount in a reference under section 18 of the said Act which is higher than amount claimed by him in response to notice under section 9 of the said Act. The embargo against claiming an amount higher than what was claimed in response to notice under section 9 was removed by the amendment to section 25 effected by the Act No.68 of 1984. 7. A reference will have to be made to the decision of the Apex Court in the case of Land ... 8 ... Acquisition Officer Vs. B.V. Reddy and Sons (Supra). The Apex Court formulated five questions for consideration which read thus: "(1) Can the provision of Section 25 of the Land Acquisition Act be construed to be procedural in nature or substantive? (2) If it is held to be substantive in nature, then can the amended provisions of Section can the amended provisions of Section can the amended provisions of Section 25 of the Act apply to a case where the 25 of the Act apply to a case where the 25 of the Act apply to a case where the award of the Land Acquisition Collector had award of the Land Acquisition Collector had award of the Land Acquisition Collector had been made much prior to the amendment in been made much prior to the amendment in been made much prior to the amendment in question? question? question? (3) Whether the judgment of this Court in Krishi Utpadan Mandi Samiti Case can be held to be correctly decided? (4) Whether at all it would be appropriate for this Court to lay down the law and yet not interfere with the judgment of the Division Bench of the Andhra Pradesh High Court with regard to the quantum of compensation awarded? ... 9 ... (5) Whether the petition under Article 32 can be entertained for deciding the validity of the unamended provisions of Section 25?" (Emphasis supplied) 8. The Apex Court while answering the first question held that provision of section 25 of the said Act is not a procedural provision but it is a substantive provision. In paragraph No.5 of the decision, the Apex Court has observed that in the case before it the award under section 11 of the said Act was made between 30th September, 1982 to 24th September, 1984. The second question formulated by the Apex Court is decided in paragraph No.6. The relevant portion of paragraph No.6 reads thus: "In that view of the matter, question of In that view of the matter, question of In that view of the matter, question of applicability of the amended provisions of applicability of the amended provisions of applicability of the amended provisions of Section 25 of the Act to an award of the Section 25 of the Act to an award of the Section 25 of the Act to an award of the Collector made earlier to the amendment and Collector made earlier to the amendment and Collector made earlier to the amendment and the matter was pending in appeal, does not the matter was pending in appeal, does not the matter was pending in appeal, does not arise. In our considered opinion, the arise. In our considered opinion, the arise. In our considered opinion, the amended provisions of Section 25 of the Act, amended provisions of Section 25 of the Act, amended provisions of Section 25 of the Act, not being retrospective in nature, the case not being retrospective in nature, the case not being retrospective in nature, the case in hand would be governed by the unamended in hand would be governed by the unamended in hand would be governed by the unamended provisions of Section 25 of the provisions of Section 25 of the provisions of Section 25 of the ... 10 ... Act Act Act."(Emphasis supplied) In paragraph No.8 of the decision, the Apex Court held as under: "To the case in hand, it is difficult for us to apply the aforesaid principle. On the date the land was notified for acquisition under Section 4(1) of the Act, the unamended provision of Section 25 was in force and it was made known to all concerned that the Reference Court will have no power to award the amount in excess of the amount claimed by the claimants. Not only the language of the statute was clear and unambiguous, but also the question was not res integra, in view of the decision of this Court in Dadu Yogendre Nath Singh V. Collector, Seoni. Until the statutory rigour contained in sub-section (1) of Section 25 stood obliterated by the amended provisions of section 25 and until all restraints and embargoes placed for the court stood totally liberated, the Reference Court had no jurisdiction to award the amount in excess of the amount ... 11 ... claimed by the claimant." 9. It must be noted here that while formulating the questions, the Apex Court has formulated the second question which will apply to a case where award of Land Acquisition Officer has been made prior to 24th September, 1984. There is no specific question framed on applicability of amended section 25 to a case where the award under section 11 is made on or after 24th September, 1984 i.e. after coming into force of the Act No.68 of 1984. In paragraph No.6 of the decision, the second question is answered by clearly observing that question of applicability of the amended provisions of section 25 of the said Act to an award of the Collector made earlier to the amendment. 10. In the case of Dhanaji Kamlu Joshi (supra) the award was made under section 11 on 03rd September, 1986. The second point for consideration framed reads thus: "2. Whether the claimant is entitled to claim enhancement of compensation over and above the amount claimed by him in answer to the notice under ... 12 ... Section 9 of the said Act in relation to the land acquisition proceedings initiated prior to 24-9-1984 in view of the unamended Section 25 of the said Act?" The Division Bench has answered the second question in the negative. In paragraph No.28 of the decision, the Division Bench has observed thus: "28. It was sought to be argued that in the case in hand the award was admittedly passed after 24-9-1984 and therefore the question of applicability of the unamended Section 25 to the proceedings does not arise. It is to be noted that right to quantify the compensation is assured to the claimant under Section 9 of the said Act. Though a declaration under Section 6 of the said Act amounts to conclusive evidence that the land is needed for public purpose in terms of sub-section (3) to (6) thereof, however, the claimant is entitled to quantify the compensation in answer to the notice under Section 9. Once such a right had been matured in Once such a right had been matured in Once such a right had been matured in ... 13 ... favour of the claimant and such right was favour of the claimant and such right was favour of the claimant and such right was exercised by the claimant and the same was exercised by the claimant and the same was exercised by the claimant and the same was done prior to 24-9-1984, the provisions of done prior to 24-9-1984, the provisions of done prior to 24-9-1984, the provisions of the unamended Section 25 would be the unamended Section 25 would be the unamended Section 25 would be attracted in relation to such proceedings. attracted in relation to such proceedings. attracted in relation to such proceedings. In fact, the unamended Section 25 would In fact, the unamended Section 25 would In fact, the unamended Section 25 would invariably apply to all the acquisition invariably apply to all the acquisition invariably apply to all the acquisition proceedings wherein the Section 4 proceedings wherein the Section 4 proceedings wherein the Section 4 Notification had been issued prior to the Notification had been issued prior to the Notification had been issued prior to the said date. said date. said date. As already observed above, the declaration under Section 6 is the conclusive evidence about the land being required for public purpose. But, the compensation for land acquired is to be assessed on the basis of the market value of the land on the day of publication of the Notification under Section 4 of the said Act. In other words, the right to compensation would be in terms of the market value of the land acquired as on the day of publication of Notice under Section 4 of the said Act. Being so, Being so, Being so, merely because the award therein is passed merely because the award therein is passed merely because the award therein is passed after amendment to Section 25 i.e. after after amendment to Section 25 i.e. after after amendment to Section 25 i.e. after 24-9-1984, that will not enure to the 24-9-1984, that will not enure to the 24-9-1984, that will not enure to the benefit of the claimant to contend that benefit of the claimant to contend that benefit of the claimant to contend that ... 14 ... the amended provision of Section 25 would the amended provision of Section 25 would the amended provision of Section 25 would apply to his case. apply to his case. apply to his case. As regards the quantification of the compensation pursuant to the exercise of his right under Section 9 read with section 25(1), as was in force at the relevant time, the provisions of the unamended Section 25 would get attracted." 11. It is apparent that observation of the Division Bench in paragraph No.28 of the judgment will have direct bearing on the question which is required to be decided in this Appeal. In the case of State of Maharashtra Vs. Govind Goma Gowari the same Division Bench has taken a similar view. My attention is also invited to a decision of another Division Bench of this Court dated 31st March, 2004 in First Appeal No.757 of 2003 (State of Maharashtra Vs. Kamali Keshav Mhatre & Ors.). The said Division Bench has also considered the provisions of amended section 25 in the light of the decision of the Apex Court in the case of Land Acquisition Officer Vs. B.V. Reddy & Sons (supra). Paragraph 5 of the said decision of the Division Bench reads thus: "5. We then come to the next contention ... 15 ... advanced on behalf of the State that considering section 25 as it stood prior to its amendment, the claimants who had not replied pursuant to notice under section 9, claiming market value for the acquired land which they were entitled to or had claimed at market value at a particular rate, would not be entitled to claim market value of the acquired land at a higher rate than that awarded by the SLAO or more than what they themselves had claimed in the reply to the notice under section 9. . On behalf of the claimants their learned counsel contends that what is to be considered in section 25 as it now stands and once that be the case and considering the language of section 28(A), the Court before whom the application under section 28(A-3) is pending would not be bound by the unammended provision of section 25 and the Court would be entitled to fix market value at a higher rate considering the overall provisions. . The provisions of unamended section ... 16 ... 25 have been reproduced by the Apex Court in the case of Land Acquisition Officer-cum-DSWO, A.P. Vs. M/s. B.V. Reddy & Sons AIR 2002 Supreme Court 1045. Before the Apex Court also the very issue which was under consideration before us was also in issue. Answering the question whether the amended provisions of section 25 would be retrospective, the Apex Court has observed as under: "The amended provision of Section 25 nowhere indicates that the same would have any retrospective effect. Consequently, therefore, it would apply to all acquisitions made subsequent to 24.9.1984, the date on which Act 68 of 1984 came into force." . Therefore, the provisions of Section 25 as amended would apply to those acquisitions which were made subsequent to 24.9.1984. On behalf of the State, our attention was also invited to the Judgment of the Apex Court in the case of Ujjain ... 17 ... Vikas Pradhikaran (Ujjain Development Authority) Vs. Tarachand and Another (1996) 5 Supreme Court Cases 574. The Apex Court therein noted that under Section 25(2) of the Act prior to the Amendment, the Court was prohibited to enhance the compensation in excess of the amount claimed pursuant to the notices issued under section 9 and 10 of the Act. Since sub-section (2) of section 25 was deleted by Amendment Act 68 of 1984, the limitation on the exercise of the power of the court was taken away. Nonetheless, it would always be open to a party to claim a particular amount and having claimed at the rate, the question arises whether the court could grant compensation higher than that claimed by the party? Answering the issue the court observed that it would be obvious that when a party claims compensation at a particular rate, he assesses the market value of the land at that particular rate and seeks compensation on that basis. Having assessed the compensation at that particular rate, the question emerges whether the court could grant higher ... 18 ... compensation