2004(3) ALL MR 884
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.G. DESHPANDE, J.
Sitaram Gangadhar Shende & Ors.Vs.Special Land Acquisition Officer No.2, Satara & Anr.
First Appeal No.982 of 1987
19th September, 2003
Petitioner Counsel: Mr. N. V. WALAWALKAR
Respondent Counsel: Mr. K. K. TATED
Land Acquisition Act (1894), S.28 - Claim for enhancement - Land falling in command area - Acquiring Society itself purchasing land at only a furlong away at higher rate - Land having non-agricultural potentially - Reasons given by Trial Court for refusing enhancement, not proper - Enhancement granted. (Paras 9, 10, 11)
JUDGMENT :- Heard counsel for the appellants and the learned AGP for the respondents. Appellants are the owners of land and their land was acquired by the Respondents. SLAO granted Rs.12,000/- per hectre. Being dissatisfied with this compensation, claimants preferred Reference to the Collector. The matter ultimately went to the Civil Court and the Civil Court dismissed the claim with costs, hence this appeal.
2. Three reasons are given by the courts below for not enhancing the compensation. Firstly, according to the courts there was no evidence to show that the acquired lands fall within the command area or that there was any declaration of the Government though the lands will fall within command area. Secondly, according to the trial court the sale instances relied upon by the appellants could not be made the basis for enhancement of compensation because the land was acquired by the society for construction of house. The distance between the acquired land and the village was one mile. There was no N.A. potentiality to the acquired land and the witness examined to prove the sale deed, the Secretary of the society had admitted that they were ready and willing to purchase the land at any costs.
3. Second sale notice which is only of 1 guntha or one acre and which was by the side of the village for which the purchaser has paid Rs.1,000/- per guntha was also not taken into consideration by the trial court. The trial court found that compensation granted by the SLAO and the classification of lands made by him depending upon their fertility was proper and no interference was called for.
4. So far as the first point is concerned, namely, regarding the land not falling within the command area the said findings of the trial court which is repeated at couple of places in the impugned order is totally contrary to the record. In the Award itself, copy of which was given by Mr. Walawalkar, it is stated in the first paragraph under the caption title and particulars of notification and details of lands that the agricultural land under acquisition falls in the command area of Krishna Project. It appears that this particular portion was not brought to the notice of the courts below. In view of this noting in the award itself there cannot be any doubt that the acquired land falls under the command area of Krishna Project.
5. So far as the sale instances considered by the SLAO are concerned, taking into consideration about 41 sale instances but he has given very peculiar reasons for rejecting the same and approving the same. After classifying the land as superior Jirayat land and class 2 Medium Jirayat land and (3) Inferior Jirayat Land different sale instances are considered under different category e.g. for Jirayat medium class I he has taken into account 10 sales instances. He has rejected those on lower side and also rejected those are on higher side and he has tried to find out a mean price out of the remaining sale instances. For Jirayat Medium land Class II there are two sale instances but according to SLAO the price being very high viz. Rs.37,995/- and Rs.75,000/- was rejected. Exorbitant price is the only criteria applied by SLAO for rejecting these two sale instances. He has not considered the area, the situation, location inpromixity and why the prices were so high in respect of those lands. As against this claimants have come with a specific case that their land has advantage and benefit of Survey No.334 coming under the command area of Dhom. The land is situated by the side of the road and New Irrigation Colony is near this land. The land Survey No.371 is also by the side of the road and it is near New Irrigation Colony and housing society. Survey No.234 is also by the side of road and it is near Irrigation Colony and near the housing society. Regarding the situation and location of the acquired land the SLAO has himself stated in column situation, description with the lands of the above mentioned villages are quite adjacent to the lands of this village and within 2 to 3 kms from Gaothan.
6. Apart from this the most important piece of evidence that has been put forth by the claimant is execution of sale deed in favour of the society vide Exhibit 46. A perusal of the said sale deed shows that it is a sale deed in respect of 50 Ares of land for consideration of Rs.30,000/- which per acre comes to Rs.24,000/-. The witness who has proved the sale deed i.e. witness No.2 for the claimant has stated that the land under this Exhibit 48 and acquired lands are only one furlong away from each other. Therefore merely because the acquired land is 1 mile from the village cannot be a criteria for rejecting the sale deed because the lands of the society is owner of the acquired land at the distance of one furlong.
7. It is true that witness No.2 has stated that they had decided i.e. the members of the society had decided to purchase the land at any costs, it might be that for that purpose they had paid the higher price but even if that aspect is considered the price that per acre comes under this transaction Exhibit 48 is Rs.24,000/- per acre whereas the claimant are claiming only Rs.12,000/- per Acre only.
8. In the evidence of P.W.2 an attempt is made to show that even though the document reflects that price was Rs.30,000/- only Rs.14,000/- were paid and there is no proof with the purchaser to show that the remaining amount of Rs.16,000/- was ever paid. There was no basis for the opponents to go into that aspect because the document itself shows that the payment of full consideration of Rs.30,000/- is made. Exhibit 48 is relied and it is a Sale deed in which it is specifically mentioned that at the time of agreement of sale dated 5-12-1979 the vendor received Rs.16,000/- and on the date of the sale deed i.e. 26-12-1979 they received Rs.14,000/- in addition. Therefore the document itself shows that the vendor has received Rs.30,000/- in all. Cross-examination of P.W.2 is unmindful of this fact.
9. When therefore it is a matter of record that the acquired lands fall in the command area as per the admission given in the award itself and when society purchased the land which is only one furlong away from the acquired land Rs.24,000/- per acre, then the demand of the claimant for compensation at Rs.12,000/- per acre in respect of Jirayat land and in respect of Bagait land is just, most reasonable and proper. The lower court had lost sight of this important two aspects and has come to the conclusion that the claimants are (sic - not) entitled to any enhancement. I do not find any justification for refusing the demand.
10. The compensation demanded by the claimant is most reasonable. It is supported by document Exhibit 48 about price of lands. The acquired land had definitely NA potentiality because the society has purchased the property for residential purposes for construction of houses that has to increase value of the acquired land.
11. So far as potkharab land is 0.93 from survey No.334, 0.21 from Survey No.371. So far as this Potkharab land is concerned the compensation that was granted was Rs.200/- per acre. The basis for fixing compensation for superior quality land was found to be wrong it is more than Rs.200/- per acre for potkharab land again cannot also be sustained. Therefore, this appeal is allowed. Judgment and the order of the lower courts is set aside. Appellant will be entitled to get compensation at Rs.12,000/- per acre for acquired land but so far as potkharab land is concerned i.e. 0.93 H. from Survey No.334 and 0.21 H from 371, they will be entitled to get compensation at the rate of Rs.500/- with all the consequential benefits in accordance with the law. Calculations of this is to be made by the trial court upon production of this judgment and after hearing both the sides. Appeal is allowed. Respondent to bear the cost of the appeal and their own. Certified copy expedited.