2003(4) ALL MR 1021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
D.S. ZOTING, J.
Vithal Vishwambharrao Deshmukh Vs. State Of Maharashtra
First Appeal No.60 of 1988,First Appeal No.61 of 1988,First Appeal No.62 of 1988,First Appeal No.64 of 1988,First Appeal No.106 of 1988,First Appeal No.107 of 1988,First Appeal No.108 of 1988,First Appeal No.99 of 1992,First Appeal No.101 of 1992,First Appeal No.102 of 1992
24th June, 2003
Petitioner Counsel: Shri. R. M. BORDE
Respondent Counsel: Shri. V. K. JAJU
Land Acquisition Act (1894), S.18 - Reference under - Reference is an original proceeding to determine market value afresh and claimant is a plaintiff - It is for the parties to the reference to produce the evidence in support of their claims and rival claims regarding the market value of the land. AIR 1988 SC 1652 and AIR 1985 SC 1576 - Followed. (Para 24)
No. of appeal preferred by land owners.
No. of appeal preferred by the State of Maharashtra.
5. Out of the above appeals, First Appeal No.106/1988 arises out of the Judgment and Award passed by the reference court on 31st December, 1987 in L.A.R. No.40/1983. The remaining appeals arise out of the common Judgment and Award passed in the remaining references referred to above on 3rd September, 1987.
6. All these references have been decided on the basis of the common evidence recorded in Land Reference No.33/1983 which is adopted by all the claimants in their respective Land Reference under Section 18 of the Act. Findings of the reference court in all these matters have been recorded on the basis of the evidence recorded in said Land Reference.
7. All the appeals are filed by the land owners whose lands were acquired for construction of "Manjara Project" and common questions are involved in all these appeals, therefore, all these appeals have been disposed of by common Judgment.
The State of Maharashtra issued notification under Section 4(1) of the Act, seeking to acquire the lands belonging to the claimants for the public purpose namely construction of "Manjara Project". The notification was published on 14th July, 1977. The declaration under Section 6 of the Act was published on 15th March, 1979. The Special Land Acquisition Officer passed award on 6th November, 1981. He fixed the market value of the acquired land at the rate of Rs.7,000/- per hectare treating the lands as agriculture.
9. Being dissatisfied with the valuation made by Land Acquisition Officer, the original claimants accepted the compensation under protest before the Collector and requested him to submit a reference to the Civil Court as per the provisions of Section 18 of the Act, as according to them the compensation fixed by the Land Acquisition Officer is inadequate and does not reflect the true market price. The claimants demanded the compensation by fixing the market value at the rate of Rs.15,000/- per hectare, prevailing during the relevant period of notification under Section 4(1) of the Act. Therefore, in the land reference, they claimed market value at the rate of Rs.15,000/- per hectare.
10. On notice being served, State of Maharashtra put in appearance through the learned District Government Pleader. All the claims were opposed by the State by filing written statements in the respective matters. The common defence put forward by the State is that the valuation made by the Land Acquisition Officer is just, proper and correct as per the rates prevailing during the relevant period of notification under Section 4(1) of the Act and the valuation was made after due inquiry and the enhanced rate claimed before the Land Acquisition Officer is not justified. It is submitted by the State of Maharashtra that all the claim petitions deserve to be dismissed.
11. In support of their case, the claimants adduced evidence of two witnesses in Claim Petition No.33/1988 and they have placed reliance on the two sale instances. Respondent-State did not produce any evidence.
12. Reference court on appreciation of the evidence fixed the market value of the acquired land at Rs.12,000/- per hectare. In the result, each of the reference was partly allowed by declaring that the original claimants are entitled to receive compensation at Rs.12,000/- per hectare along with solatium of 30% and interest on the enhanced amount of compensation inclusive of solatium at 9% per annum under Section 28 of the Act, from the date of award i.e. 6th November, 1981 till payment is made with proportionate costs.
14. Being dissatisfied by the said Judgment and Award, the State of Maharashtra preferred the four appeals and the original claimants have preferred seven appeals, as referred to above, challenging the quantum of compensation awarded by the reference court in the award passed by it.
15. The learned A.G.P. contended that while assessing the market value of the acquired land, the learned Judge erred in fixing the market value at the rate of Rs.12,000/- per hectare, as the sale instances produced by the claimants do not reflect the true market value. It is contended that out of the two sale instances one is in respect of the period prior to notification under Section 4(1) of the Act, whereas the second pertains to post notification period. It is submitted that the Land Acquisition Officer considered 75 sale instances and fixed the value at the rate of Rs.7,000/- per hectare, which reflects the true market value prevailing during the relevant period of the notification. According to the learned A.G.P. the evidence produced by the claimants in support of their claim is not sufficient to show that the market value of the acquired land is Rs.12,000/- per hectare. He, therefore, contended that the award of reference court fixing market value at the rate of Rs.12,000/- per hectare deserves to be quashed and set-aside.
16. As against this, Shri.R.M. Borde, learned counsel for the land owners (original claimants) has supported the finding recorded by the reference court as regards the market value of the acquired lands. He submitted that two sale instances produced by the claimants are sufficient to arrive at the finding that the market value of the land was not less than Rs.12,000/- per hectare. He further submitted that if the State wanted to show that the evidence produced by claimants does not reflect the correct market value, then it ought to have produced the evidence in support of its contention. In this respect, no evidence is produced by the State and as such the appeals preferred by the State are devoid of any substance and they deserve to be dismissed.
17. It is further contended that though the reference court awarded the statutory benefits in terms of Section 28 of the Act by awarding interest @ 9% per annum from the date of award on the enhanced amount of compensation inclusive of solatium, the reference court ignored the proviso to Section 28 of the Act, which provides for interest @ 15% per annum after expiry of one year, till realisation of the amount.
18. Taking into consideration the contentions raised by both the parties, the problem which has surfaced in the present appeals is centred on the question of market value of the land under acquisition and the statutory benefits which are required to be given as per the proviso of Section 28 of the Act.
20. It is to be noted that the notification under Section 4(1) of the Act was published on 14th July, 1977, therefore, the market value existing at that time will have to be considered for the purpose of assessing the market value of the acquired land.
"The State was bound to pay to the claimants compensation on the basis of the market value of the land acquired. It was pointed out that the State Government must do, "what is fair and just to the Citizen" and should not, as far as possible, take up a technical plea to defeat the legitimate and just claim of the Citizen. Thus, bearing in mind the circumstances, of lands being taken away without the consent and much against the wish of the land owner, the humanising factor in the law has thought it fit to remove all hurdles and humps in the way of the claimant getting a compensation which is deemed just and adequate. While the law of course expects him to make good the claim made before Court by producing ample evidence, it has nonetheless thought fit to remove all barriers that may prevent or preclude him from claiming the market value of the land."
22. In Chimanlal Vs. Special Land Acquisition Officer, Poona, reported in AIR 1988 SC 1652, Supreme Court held that while disposing of a reference, the following factors must be etched on the mental screen.
"(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court can not take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation can not be utilised by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of Course the materials placed and proved by the other side can also be taken into account for this purpose."
23. Suffice, for our purpose to emphasise the Courts dicta holding the reference made to a court under Section 18 of the Act, to be an original proceeding requiring the court to determine the market value of the property on the basis of the material produced before it, treating the claimant as the dominus litis occupying the position of the plaintiff.
24. Thereby, it is settled law that the claimant is a plaintiff and the Reference is an original proceeding to determine market value afresh and it is for the parties to the reference to produce the evidence in support of their claims and rival claims regarding the market value of the land.
25. As already pointed out the date of notification under Section 4(1) of the Act, is. 14-07-1977. Two sale instances are relied upon by the claimants. The first sale deed is dated 8-7-1977 at Exh.22 fetched price at the rate of Rs.14,700/- per hectare, whereas the second sale deed Exh.23 dated 23-4-1974 fetched the price at the rate of Rs.14,300/- per hectare. The first sale instance pertains to the period prior to the notification under Section 4(1) of the Act. Though, the second sale instance is in respect of the post notification period, however, it can not be ignored completely. This sale deed also reflects the same price even after passage of one and half years time. This fact supports the first sale instance to show that the market value of the adjoining land was not less than Rs.14,000/- per hectare and taking into consideration the reference court fixed the market value at Rs.12,000/- per hectare for the acquired lands. As against the evidence produced by the claimants, the State has not produced any evidence to show that the market value of the land was less than Rs.12,000/- per hectare. State has not examined the Land Acquisition Officer who passed the award also. Thus, the evidence of two sale instances was available before the reference court together with the statements made by the claimants on oath. Considering the evidence, I find that the reference court has rightly fixed the market value at the rate of Rs.12,000/- per hectare.
26. The learned counsel for the land owners (original claimants) have no grievance regarding the market value fixed by the reference court and considering the facts and circumstances the finding recorded by the reference court as regards the market value does not call for any interference from this court.
27. Consequent to the above findings, all the appeals viz. First Appeal Nos.99/1992, 100/1992, 101/1992 and 102/1992 preferred by the State of Maharashtra challenging the market value of the acquired lands deserve to be dismissed. At this stage, it is also necessary to point out that in L.A.R. Nos.33/1983, 11/1983 appeals were preferred by the State but they were dismissed in default and no application for restoration of these appeals were filed by the State. It is also pertinent to note further that in L.A.R. No.40/1983 appeal was preferred by the State but its' registration was refused vide order in rejected Application No.477/1992.
28. Now turning to the grievance made by the land owners (original claimants) against the impugned order, it is contended on their behalf that statutory benefits available to them in accordance with the provisions of Section 28 of the Act, is denied to them.
"28. If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of (nine per centum) from the date on which he took possession of the land to the date of payment of such excess into Court;
(Provided that the award of the Court may also direct that where such excess or any part there of is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.)"
30. Careful reading of it clearly shows that claimants are entitled to get interest on enhanced amount of compensation at the rate of 9% per annum for the first year from the date of dispossession of the land. Proviso to Section 28 of the Act shows that after expiry of one year land owners are entitled to get interest at the rate of 15% per annum till realisation of the amount of enhanced compensation.
31. After going through the orders passed by the reference court, it is clear that no such benefit is given to the claimants. Reference court awarded interest at the uniform rate of Rs.9% per annum till realisation irrespective of the provisions to pay interest at the rate of 15% per annum after expiry of one year from the date of dispossession. The said order regarding the interest is apparently inconsistent with the proviso of Section 28 of the Act, therefore, on this limited ground, the appeals preferred by the land owners (original claimants in above reference) bearing First Appeal Nos.60/1988, 61/1988, 62/1988, 64/1988, 106/1988 and 107/1988, 108/1988 deserve to be partly allowed by modifying the impugned order as regards the interest accordingly.
32. In the result, the appeals preferred by the State of Maharashtra bearing First Appeal Nos.99/1992, 100/1992, 101/1992 and 102/1992 are dismissed. However, the appeal preferred by the land owners (original claimants) bearing First Appeal Nos.60/1988, 61/1988, 62/1988, 64/1988, 106/1988, 107/1988 and 108/1988 are partly allowed.
33. The impugned order as regards fixation of enhanced compensation is confirmed. However, the impugned order pertaining to interest granted under Section 28 of the Act, by the reference court is set aside and in its' place follow order is substituting.
34. The claimants are entitled to get interest at the rate of 9% per annum for the first year and at the rate of 15% per annum after expiry of one year on enhanced amount of compensation including solatium from the date of award passed by Land Acquisition Officer till the date of payment of the enhanced compensation.