1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1469 OF 2007 IN L. A. R. NO. 723 OF 1991 The State of Maharashtra ) (through the Special Land Acquisition ) Officer, CIDCO, Nashik.) ).. APPELLANT (Org. Oppnent) Versus 1A) Sahadu Aba Shete, Age 59 years ) 1B) Ambadas Aba Shete, Age 50 years ) 1C) Vishram Aba Shete, Age 45 years ) 2) Namdeo Kondaji Shete, 50 years ) 3) Kumari Lata Ramchandra Shete ) 4) Kalpana Ramchandra Shete, 19 years ) 5) Mathura Ramchandra Shete, 18 years ) 6) Asha Ramchandra Shete, 14 years ) 7) Smt.Satyabhama w/o Ramchandra ) Shete, Age 46 years ) No.6 minor by their Guardian No.7 ) All resident of Khedgaon, Taluka Dindori ) Nasik (No.3 through Power of A.H. ) Mahavrao Kondaji Shete ).. RESPONDENTS (Org. Claimants) ALONG WITH FIRST APPEAL NOS.412 TO 421 OF 2006 A/W CROSS OBJECTION (STAMP) NOS.16303, 16306 AND 16307 OF 2006) AND CROSS FIRST APPEAL (STAMP) NOS.13587 TO 13590 & 13592 of 2000 (F.A. No.412 to 421 of 2007 deleted and substituted by F.A. No. 412 to 421 of 2006 & First Appeal (Stamp) Nos. 13587 to 13591 of 2000 deleted and substituted by First Appeal (Stamp) Nos. 13587 to 13590 & 13592 of 2000 vide order 2 dated 10th July, 2009 (Coram: Swatanter Kumar, C.J. & A.P. Deshpande, J.) AND FIRST APPEAL (STAMP) NO.7522 OF 2001 AND FIRST APPEAL NOS.366 TO 384 OF 2000, 824 TO 832, 834, 891, 893, 903, 977 TO 979, 981 OF 1999, 301 AND 302 OF 2001 AND 1381 TO 1383 OF 2005 ALONG WITH CIVIL APPLICATION NOS. 7503 TO 7505, 7507 TO 7511, 7513 , 7514, 7517, 7520 OF 1999, 4885 OF 2007, 3729, 3800, 3818, 3819, 3820, 3984, 3985, 4135, 4136, 4213 TO 4217, 4272 TO 4275 AND 4375 OF 2008 Mr A R Patil, Assistant Government Pleader, for the Appellant-State and for Respondent/State in all Claimants' Appeals/Cross- Objections. Mr P M Joshi for the Respondents-Claimants. Mr Anil Ahuja with Mr J.H Ahuja for the Appellants/Cross Objectionists. Ms Asha Rakh, Mr Anand Prabhu/Chaware and Ms.Smita Anand for Claimants. CORAM : SWATANTER KUMAR, C.J. & A.P. DESHPANDE, J. JUDGMENT RESERVED ON :14TH AUGUST 2008 JUDGMENT PRONOUNCED ON : 25TH SEPTEMBER 2008 3 JUDGMENT (Per Swatanter Kumar, C.J.) On 25th August 1988, the Special Land Acquisition Officer (SLAO), Irrigation II, Nashik issued on behalf of the State of Maharashtra Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) for acquisition of the lands for a public purpose namely, construction of Tisgaon Dam. Corrigendum to this Notification was issued on 24th July 1989. These Notifications were published in the Government Gazette on 25th August 1988 and 26th October 1989, whereupon it was also so published in the local newspapers on 20th August 1988, 23rd August 1988 and even notified at the village chawadi on 17th April 1989. In furtherance to these Notifications, the SLAO issued a declaration under Section 6 of the Act on 23rd March 1990 where after he proceeded in accordance with law and after hearing the Claimants, made an Award under Section 11 of the Act on 16th February 1991 4 determining compensation payable to the Claimants at the following rates :- ------------------------------------------------------------------ Group Jirayat Bagayat ------------------------------------------------------------------ I Rs.18,000/- p.h. Rs.27,000/- p.h. II Rs.22,000/- p.h. Rs.33,000/- p.h. III Rs.27,000/- p.h. Rs.40,500/- p.h. IV Rs.33,000/- p.h. Rs.49,500/- p.h. Pot Kharaba land @ Rs.200/- p.h. ------------------------------------------------------------------ 2. Dissatisfied with the extent of compensation, the Claimants without prejudice to their rights and contentions made applications under Section 18 of the Act claiming compensation at the rate of Rs.1,00,000/- per hectare for jirayat land (cultivable land) and Rs.5,000/- per hectare for pot kharaba land (waste land). The Claimants produced documentary and oral evidence and, amongst others, proved on record certain sale-deeds and judgments of the Court being Exhibits 15, 23, 34 and 36. The State government examined only one witness DW1, whose 5 statement was recorded as Exhibit 49, who was not aware of the contents of the sale deed dated 6th April 1988 and thus could not prove in accordance with law Exhibit 50, sale deed relating to the Village Khedgaon where it was stated that the jirayat land measuring 1 hectare 99 Ares was sold for a sum of Rs.40,000/-. The learned Reference Court relied upon Exhibit 34 sale deed dated 24th March 1986 vide which 27Ares bagayat land was sold for Rs.41,000/- in village Khedgaon giving a rate of Rs.1,51,851/- per hectare. 3. While referring to other evidence on record, the learned Reference Court enhanced the compensation payable to the Claimants for acquisition of their land as follows : Rs.1,47,000/- p.h. for Jirayat Land (Group II) Rs. 73,500/- p.h. for Pot Kharab land. 4. The State of Maharashtra took exception to the enhancement of compensation by the Reference Court and 6 thus filed the present Appeal i.e. First Appeal No. 1469 of 2007 challenging the correctness of the judgment of the Reference court on different grounds. The Respondent- Claimants have not preferred any Appeal or Cross-Objection against the judgment of the Reference Court. 5. We may usefully refer to the reasonings and findings recorded by the learned Reference Court while enhancing the compensation payable to the Claimants. The same reads as under :- “14. The last witness examined on behalf of the claimants to prove sale instance Ex. 34 is P.W. 2 Somnath Punjaji Thube. According to him on 24-3-1980 he had sold G.No. 242 from village Khedgaon to Savitribai Bhaskarrao Davange for Rs.41,000/-. The area sold was 27ARE. It was bagayat land and it was irrigated on the well water. According to him, land was sold as per the then market rates prevailing. There was also electric motor of 3 H.P. Installed on the said well. He had 1/10th share in the well and electric motor. He had purchased said electric motor for Rs.2,500/- to Rs.3,000/-. According to him, he was required to spend round about Rs.2,000/- for getting electric connection. Earnest money of Rs.24,000/- were received at the time of agreement of sale and the remaining amount of Rs.17,000/-, was 7 paid at the time of sale-deed. According to him, he had signed the said sale-deed to Ex. 34. He states that the distance between the acquired land in the present reference and the land sold by him is only 300 to 400 metres. Quality and fertility of the acquired land and that of the land sold by him is the same. So, he has certainly proved the contents of the said sale- deed Ex. 34. It is pertaining to the bagayat land from the same village. When the sale instances of Jirayat land like present acquired land arenot produced on record, then for comparision and proving the then market rate of the Jirayat land from the same village. One can certainly keep reliance on the sale instance of the bagayat land. It is not in dispute that the land under sale instances is bagayat land and therefore, it is superior in quality to the Jirayat land like the land under present reference. Under these circumstances, when the land in question is bagayat land and in absence of proof of extant of superiority of the land to Jirayat land, then in that case as it has been held by the Supreme Court in the case of Kantaben Manibhai Amin and another Vs the Special Land Acquisition Officer Baroda AIR 1990 S.C.C . Page 103 that the value per acre should be determined after taking into consideration contemporaneous documents of sale of Jirayat land and it has awarded 25 per cent excess compensation over and above market value of Jirayat land. So, on the basis of proved sale instance Ex. 34 in the present references dated 24.3.1986 the claimants have proved that the land G No. 242 admeasuring 0.27 ARE was sold forRs.41,000/- from village Khedgaon. So, the basis of it per hectare rate on the date of alleged sale dated 24.3.1986 8 comes to Rs.1,51,000/-. But the gap between said sale instance dated 24.3.1986 and the present notification u/s 4 in this reference dated 26.10.1989 is of 43 months. So, if 10% rise is given per annum, then for this 43 months, the rise which is required to be givenwill come to 35%. So, if so the proved rate of Rs.1,51,000/- PH. On the basis of sale instance dated 24.3.1986 vide Ex. 34 ;if rise is given of 35%, then rate of bagayat land will come to Rs.2,03,000/- P.H. If 25% deduction is given for the Jirayat land being present land as Jirayat land on the basis of decision by the Apex Court in the case supra Kantaben Manibhai Amin V/s The Special Land Acquisition Officer, Baroda, then Jirayat rate for group No. III will come to Rs.1,52,000/- P.H. If deduction of Rs.5,000/- is given as per the gap of Rs. 5,000/- kept in two different groups by the S.L.A.O., then rat e for Jirayat Group No.II will come to Rs.1,47,000/-. This according to me will be just and proper compensation rate of be awarded to the claimants in the present reference which will meet the ends of justice. Consequently, the claimants are entitled to get aforesaid market rate as worked out by me.” 6. The challenge to the correctness of the above findings on behalf of the State is primarily on the ground that even if Exhibit 34 was to be relied upon, still the Court should have made appropriate deductions on account of smallness of the land subject matter of Exhibit 34, and the 9 fact that the land sold vide Exhibit 34 was a bagayat land and the compensation payable for jirayat land should have been reduced by atleast 50% and, lastly, that the Claimants had not produced any evidence on record to show that there was increasing trend in the sale consideration of the land during the period 1986 to 1989 which is the relevant period. The Claimants having failed to discharge their obligation, the increase granted by the Reference Court under Section 10 is without any basis. 7. Before we proceed to discuss merit or otherwise of the contentions raised in First Appeal No.1469 of 2007, it is necessary for us to deal with the facts of bunch of another first appeals which have been listed for hearing together with this appeal. First Appeal No.366 of 2000 and group of connected maters: 10 8. The learned Reference Court, vide its Judgment dated 29th April, 1999 decided 48 references, out of which 4 references were barred by time. The learned Reference Court dismissed all those 48 references with costs. Out of 48 references, 44 references were dismissed on merits as, according to the Reference Court, there was no substance in the claim of the claimants. However, the remaining 4 references were dismissed, as reference petitions under Section 18 of the said Act in those references were filed by the claimants beyond time. Out of the said 48 claimants, whose cases were dismissed by the learned Reference Court vide its judgment dated 29th April, 1999, 41 claimants have filed the above first appeals before this Court. It may also be noticed that out of 4 land acquisition references which were dismissed by the learned Reference Court, as being barred by time, three claimants have filed appeals before this Court being First Appeal Nos.891 of 1999, 893 of 1999 and 1382 of 2005. 11 9. When these appeals were pending in this Court, during the pendency of these appeals, some of the claimants/appellants expired resulting in filing of Civil Application Nos.4272, 4273, 4274 and 4275 of 2008 in First Appeal Nos.368 of 2000, 372 of 2000, 375 of 2000 and 376 of 2000 for bringing legal representatives on record. 10. Vide orders dated 6th June, 2001, 10th April, 2007 and 13th August 2007 some of the appeals were dismissed for non compliance of objections and in some of the appeals conditional order was passed which was not complied with and resultantly the Civil Application No.3818 of 2008 in First Appeal No.903 of 1999, Civil Application No.3820 of 2008 in First Appeal No.981 of 1999, Civil Application No.3800 of 2008 in First Appeal No.891 of 1999, Civil Application No. 3819 of 2008 in First Appeal No.977 of 1999 and Civil Application No.4885 of 2007 in First appeal No.979 of 1999 have been filed for recalling and/or setting aside the order 12 passed by the Registrar (J) and for hearing the appeals on merits. 11. Still further three Civil Application Nos.3729 of 2008 in First Appeal No.367 of 2000, 3985 of 2008 in First Appeal No.903 of 1999 and 3984 of 2008 in First Appeal No. 891 of 1999 were filed for taking additional evidence on record. 12. Some of the Claimants have, in their respective Appeals, filed Civil Application Nos.7503 to 7505, 7507 to 7511, 7513, 7514, 7517 and 7520 of 1999 with a prayer that the costs imposed and ordered to be recovered under the Judgment of the Reference Court be not enforced against them. 13. The claimants have challenged the legality and correctness of the judgment under appeal on the ground that they had led sufficient material and admissible 13 evidence, oral as well as documentary, on record which have been incorrectly ignored by the Reference Court resulting in serious prejudice to the claimants. Exhibits 52, 53 and 83 are the statements of expert valuer, Horticulturist and seller of the lands from village Khedgaon who had sold 30 ares land to one Ramesh Damu Dhokale on 1st June, 1989 for a sum of Rs.50,000/-, giving a rate of Rs.1,66,666/- per hecatre. The said land was bagayat land irrigated on canal distributory. He proved the Sale Deed Exhibit 84. The claimants have also tendered and placed on record Exhibit-17/62C sale instance from the same village is 63 ares of land sold on 17th May 1989 for a sum of Rs.75,000/-, giving a price of nearly Rs.1,19,048/- per hectare. In addition to this evidence, the claimants also proved on record the 7/12 extract of the acquired land as Exhibits 18 to 50. The State relied upon the oral evidence of D.W.1 Exhibit-97 from the State's Horticulture Department, the Award Exhibit –14, notices sent to the claimants under Section 12(2) of the Act and the Map Exhibit-148 in relation 14 to the acquired land. It may be useful to notice here that Section 4 Notification giving rise to these appeals was issued on 29th August, 1989 while declaration under Section 6 of the said Act was made on 21st June, 1990 and the Collector had made his Award in terms of Section 11 of the said Act on 9th April, 1992. In other words, the Notification in First Appeal No.1469 of 2007 and all other proceedings are prior to the relevant dates in this group of appeals. 14. The learned Reference Court rejected the Exhibit-84 on the ground that the sale instance was from another village and relying upon the oral statement of D.W. 1 which came to the conclusion that the Award Exhibit-14 was depicting the correct market value of the land in question and as such no enhancement was required to be given to the claimants. 15. As far as First Appeal Nos.891 of 1999, 893 of 1999 and 1382 of 2005 are concerned, by the impugned 15 judgment, the references of these claimants were held to be barred by time and as such were dismissed by the Court. Even before us, the learned counsel appearing for the claimants is unable to demonstrate that the reference applications filed before the Collector under Section 18 of the Act were not brought by time and as such they could not be entertained by the Court for the purposes of granting any relief to the claimants. 16. The learned Reference Court has specifically referred to the notices issued under Section 12(2) of the Act and their service upon the Claimants. In the applications moved under Section 18 of the Act by the Claimants, there was delay of 18 to 57 days. The discussion of the Reference Court on this issue is based upon statutory provisions and the Court has also relied upon various judgments of this Court as well as of the Supreme Court. Thus, this aspect of the judgment does not call for any interference. 16 17. It is settled proposition of law that neither the Collector nor the Court has jurisdiction to extend or condone the period of limitation provided under Section 18(2) of the Act. Reference can be made to a judgment in the case of State of Maharashtra v. Ashok Laxman Wani decided on 31st July, 2008 in First Appeal No.1119 of 1997 as under : “9. ... This is a reference by the Collector to the Court of competent jurisdiction and proceedings of reference are expected to be carried out in accordance with law. Proviso to Section 18(2) spells out a limitation within which the application contemplated under Section 18 of the Act is to be filed. The period of limitation depending on the facts of a given case would be six weeks to six months. Six months being the outer case limit, in either of the events, where the Applicant was present before the Collector at the time when the Award was made or where he was served with a notice under sub-section (2) of Section 12 of the Act. This specific period of limitation is mandatory and is not flexible either in its term or by any enunciated principles of necessary implication. In fact, this legal issue is no more res integra and stands finally settled by the judgment of the Supreme Court in the case of Mahadeo B. Patil vs. State of Maharashtra, 2006 Mh. L. J. SC 206, where referring to Raja Harish Chandra Raj Singh vs Dy. Land Acquisition Officer, AIR 1961 SC 1500 and 17 State of Punjab vs Satinder Bir Singh, (1995) 3 SCC 330, the Court held as under :- “ 14. We are here not concerned with the correctness of the decision, but the fact remains that having considered the claim of the appellant for compensation, the Special Land Acquisition Officer rejected the claim. This does amount to the making of an award, commonly described as “nil award”. If the appellant was aggrieved by such an award, it was open to him to seek reference under section 18 of the Act which the appellant actually did. We, therefore, cannot hold that no award as envisaged by section 11 of the Act was declared on 29/8/1994, since the claim of the appellant was considered and was totally rejected. There was, therefore, no question of giving any calculation of the manner in which the compensation was computed. Since, the application under section 18 was not filed within six weeks of the receipt of notice under section 12(2) of the Act, the High Court did not commit any error in holding that the application was barred by limitation. It was not disputed before us that the Land Acquisition Officer making a reference, or the Court considering a reference under section 18 of the Act has no power of condonation of delay in making an application under the aforesaid section.” 10. Even a Division Bench of this Court while 18 following the above principles, held in the case of The State of Maharashtra vs. Sadashiv Ganpat Avhad and others, First Appeal No. 251 of 1996, decided on 31st January 2008, as under :- “ 18. We are unable to find any merit in the contention raised on behalf of the claimants. It is neither disputed before us nor was disputed before any other for a that in the applications filed by the claimants under Section 18 of the Acquisition Act they had categorically and specifically admitted that they had received the notices under Section 12(2) of the Acquisition Act on 31.3.1986. The applications under Section 18 of the Acquisition Act are dated 5th June, 1986. No purpose would be served by remanding the matter to the Reference court inasmuch as the claimants cannot be permitted to go back from their admission of receipt of a statutory notice. Furthermore, it is not for any other purpose that the dates were mentioned in the application. The applicants were fully aware that they are filing applications under Section 18 of the Acquisition Act and had already received the notices under Section 12(2) of the Acquisition Act. These applications are signed by the applicants and that fact is also not in dispute. That being so, it is not necessary for us to set aside the judgments of the Reference Court and remand the matters to that Court. It is settled principle of law which in fact was not even disputed before us that the Collector and for that matter any other 19 Court has no power to condone the delay in filing an application under Section 18 of the Acquisition Act. That being the settled position of law, again it will be futile for the Courts to accept the contentions raised on behalf of the claimants for remanding the matter to the Court of the learned Joint District Judge. .... 19. In the light of the enunciated principles and the documents available on record before us, it is not required of this Court to remand the matter to the learned Joint District Judge. The reference applications have thus been erroneously decided by the learned Joint District Judge, in fact, under a mistaken impression of fact and law both. All the above appeals of the State thus necessarily should be allowed and we hereby allow the same, set aside the judgment of the reference Court in favour of the appellants in the above noticed appeals, while leaving the parties to bear their own costs.” 11. From the above analysis of the above settled principles of law, it is clear that the limitation prescribed under Section 18 of the Act is inflexible, uncondonable and is capable of rigid interpretation. Its effect on the merits of the case, we shall proceed to discuss shortly.” 18. In view of the settled position of law, we are unable to find any infirmity of law or otherwise in the 20 approach of the learned Reference Court to that extent. Thus, these three appeals i.e. First Appeal Nos.891 of 1999, 893 of 2005 and 1382 of 2005 are dismissed without any order as to costs. 19. As already noticed, in the judgment under Appeal, the learned Reference Court has observed that Claimants have not been able to establish by an cogent evidence their claim for enhancement. Two reasons have been given by the learned Reference Court. One that there is no proper evidence or sale instances placed on record by the Claimants in relation to the village from where the land has been acquired. Secondly, the lands from other villages could not be relied upon. We are unable to contribute with this view taken by the Reference Court. May be the Claimants have not been able to bring on record much documentary or oral evidence but they have produced on record evidence which could in law be sufficient to consider the claim of the Claimants for enhancement. Exhibit 84 – a sale instance 21 from village Khedgaon was not considered by the Reference Court on the ground that it is an instance of another village, while there is not much discussion on relevancy of Exhibit 17/62C, the sale instance from the same village, certified copy of the sale deed was produced on record by the Claimants. As far as rejection of Exhibit 84 is concerned, this is again not in conformity with the settled principles. The learned Reference Court noticed the evidence and contention of the Claimants as under :- “... The claimants have kept reliance on the evidence of P.W. 3 Walu Patil at Exh. 83 to prove the sale instance Exh. 84 for proving the