First appeal No. 797 of 1989

16th June, 2011

Petitioner Counsel: Mr. A.R. PATIL
Respondent Counsel: Mr. S.M. GORWADKAR

Cases Cited:
Haridwar Development Authority, Haridwar Vs. Raghubir Singh, 2010 ALL SCR 649 =AIR 2010 SC 1754 [Para 7]
K.S. Paripoornan Vs. State of Kerala and others, (1994) 5 SCC 593 [Para 12]

JUDGMENT

2. The Appellant - State of Maharashtra has taken an exception to the judgment and award dated 12th September, 1988 passed by the learned trial Court in a reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act").

3. The acquisition relates to lands bearing Survey No.121, Hissa No.3 and Survey No.121, Hissa No.5 totally admeasuring 2600 square meters at village Chanje, Taluka Uran, District Raigad. On 5th November, 1976, a notification under Section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 read with Section 6 of the said Act was issued. On 30th December, 1981, an award was made under Section 11 of the said Act. The claim made by the Respondents - claimants for market value of the land was at the rate of Rs.40/- per square meter. A claim of Rs.25,000/- was made on account of the trees on the acquired land. In the award under Section 11 of the said Act, the Special Land Acquisition Officer divided the acquired land into two belts. The first belt was of the portion of the acquired land having depth of 35 meters and the second belt was of the remaining portion of the acquired land. The Special Land Acquisition Officer noted that the area of the acquired land falling in the first belt was 840 square meters and the area of the acquired land falling in the second belt was 1760 square meters. For the land covered by the first belt, he fixed the market value at the rate of Rs.35/- per square meter and for the land falling in the second belt, he fixed the market value at the rate of Rs.25/- per square meter. He offered compensation of Rs.3135/- for the trees and Rs.189/- for the structure on the acquired land. In the reference, claim for enhancement of the market value of the acquired land was made at the rate of Rs.80/- per square meter and the claim for value of the trees was made at the rate of Rs.11,000/-. By the impugned judgment and award, the learned trial Judge held that the market value of the entire acquired land was Rs.35/- per square meter. The learned trial Judge in addition granted compensation of Rs.5,000/- for the trees and granted statutory benefits under Section 23(1A), Section 23(2) and Section 28 of the said Act.

4. The learned AGP appearing for the Appellant pointed out that the sale instance produced by the Respondents has been discarded by the Reference Court. He submitted that this was a case of no evidence. He submitted that there was no evidence to show that the lands falling in the first belt and the second belt were similar. He submitted that on the basis of the statements made in the award under Section 11 of the said Act, enhancement in market value could not have been granted. He submitted that in view of settled law, separate compensation on account of the trees on the acquired land could not have been granted. He submitted that as award under Section 11 of the said Act was made in the year 1981, the Reference Court could not have granted benefit under Section 23(1A) of the said Act. The learned AGP appearing for the Appellant submitted that the impugned award will have to be modified and the market value will have to be fixed at the rate of Rs. 22.58 per square meter as indicated in the sale instance which is relied upon by the Respondents. The learned counsel appearing for the Respondents supported the impugned Judgment and Award.

5. I have given careful consideration to the submissions. I have perused the record and notes of evidence. The original claimant stepped into witness box. He also examined Mr.Jeevan Narayan Kulkarni, a valuer as a witness. It must be noted here that though the original claimant relied upon the sale instances, the trial Court has not accepted the case made out by the claimants on the basis of the said sale instances. The finding of the trial Court is that the artificial division of a compact plot of acquired land could not have been made into two belts and therefore, the market value which was offered in respect of the land in the first belt was required to be granted in respect of the land in the second belt. In view of this finding, I have also perused the award made under Section 11 of the said Act. In the said award, it is stated that the first belt is carved out comprising of a portion of the acquired land having depth of 35 meters and the second belt comprises of the remaining portion of the acquired land. The Special Land Acquisition Officer proposed that the area falling in the first belt will attract market value at the rate of Rs.35/- per square meter and the area falling in the second belt will attract market value at the rate of Rs.25/- per square meter.

6. As far as the location of the acquired land is concerned, the original claimant stated that the acquired land was situated at the relevant time within the limits of the Uran Municipal Council. He stated that there are roads on two sides of the acquired land. One of the two roads leads to Karanja and the other road leads to Panvel. He stated that the State Transport Bust Stand was towards the west of the acquired land and it is abutting the acquired land. He also stated that there was a theatre on the rear side of the State Transport Bus Stand. The witness reiterated that the acquired land was situated adjacent to two roads. In the crossexamination of the said witness, there is no challenge to what is stated above. However, it is brought on record that on the western and southern sides of the State Transport Bust Stand, there were no buildings in existence in the year 1970. He stated that in the year 1976, on the western side of Karanja road, there were agricultural lands.

7. As far as Mr.Kulkarni is concerned, he admitted in the crossexamination that he had not visited the acquired land in the year 1976. In the report of Mr.Kulkarni which is at Exhibit - 20, he has stated that he made a visit to the acquired land for the first time on 8th January, 1986. However, apart from the report, the plan drawn by Mr.Kulkarni was proved in his evidence which is marked as Exhibit - 21. In the crossexamination of Mr.Kulkarni, there is no challenge to the said plan. On the said plan at Exhibit - 21, he has demarcated first belt and second belt. Both the portions forming part of the first belt and the second belt have direct frontage on the road leading to Panvel. The said frontage is on the southern side. On the western side, the frontage is available to Karanja road for the portion of the land falling in the first belt. However, Karanja road is not accessible from the entire front portion falling in the first belt. In respect of a part thereof, there is State Transport Bus Stand between the acquired land and Karanja road. The Bus Stand was admittedly in existence on the relevant date. There is no dispute raised about the said plan. Thus, this is not a case where the portion of the land falling in the second belt had some negative factors as compared to the land in first belt inasmuch as even the land falling in the second belt had a wide frontage on the road leading to Panvel. Thus, the said plan which is produced and proved by the valuer is sufficient to discharge the burden on the claimant to prove that the artificial division of the acquired land made by the Special Land Acquisition Officer into two belts was not correct. As far as belting method is concerned, it will be necessary to consider in what cases the belting method can be taken recourse to. The law on this aspect has been laid down in the recent decision in the case of Haridwar Development Authority, Haridwar Vs. Raghubir Singh (AIR 2010 Supreme Court 1754) : [2010 ALL SCR 649]. In paragraph No.6, the Apex Court has held thus:

"6.The question whether the acquired lands have to be valued uniformly at the same rate, or whether different areas in the acquired lands have to be valued at different rates, depends upon the extent of the land acquired, the location, proximity to an access road/Main Road/Highway or to a City/Town/Village, and other relevant circumstances. We may illustrate:

(A)When a small and compact extent of land is acquired and the entire area is similarly situated, it will be appropriate to value the acquired land at a single uniform rate.

(B)If a large tract of land is acquired with some lands facing a main road or a national highway and other lands being in the interior, the normal procedure is to value the lands adjacent to the main road at a higher rate and the interior lands which do not have road access, at a lesser rate.

(C)Where a very large tract of land on the outskirts of a town is acquired, one end of the acquired lands adjoining the town boundary, the other end being two to three kilometres away, obviously, the rate that is adopted for the land nearest to the town cannot be adopted for the land which is farther away from the town. In such a situation, what is known as a belting method is adopted and the belt or strip adjacent to the town boundary will be given the highest price, the remotest belt will be awarded the lowest rate, the belts/strips of lands falling in between, will be awarded gradually reducing rates from the highest to the lowest.

(D)Where a very large tract of land with a radius of one to two kilometres is acquired, but the entire land acquired is far away from any town or city limits, without any special Main road access, then it is logical to award the entire land, one uniform rate. The fact that the distance between one point to another point in the acquired lands, may be as much as two to three kilometres may not make any difference."(Underline supplied)

8. As pointed out earlier, in the present case, the portions falling in both the belts have a wide frontage on the road leading to Panvel. The portion of the land falling in the first belt has an access to the road leading to Karanja, but a part of the access is blocked by the State Transport Bus Stand. In this case, the Court was dealing with a compact plot of land admeasuring 2600 square meters.

9. Thus, the claimant discharged the burden on him to show that the market value offered atleast in respect of a part of the acquired land was inadequate inasmuch as in the facts of the case, the belting method could not have been applied to fix lesser market value for a portion of the acquired land. The burden shifted on the State to justify the offer made. In the present case, the Stage Government has not adduced any evidence. Therefore, a finding has been rightly recorded by the trial Court that the belting method could not have been adopted in the facts of the present case and that one part of the acquired land could not have been treated differently from the other. In the facts of the case, the entire land ought to have been valued as a single unit. That is the reason why the trial Court held that the rate of Rs.35/- per square meter fixed in respect of one part of the acquired land will also apply to the other part of the land. The sale instances relied upon by the claimant have been rightly discarded. In this Appeal, the claimants have not supported the impugned award by contending that the said sale instances ought to have been accepted.

10. At this stage, an argument canvassed by the learned AGP that the market value should be fixed on the basis of one of the sale instance on record will have to be considered. The said submission was made as the market value reflected from a sale instance relied upon by the claimant is only Rs.22.50 per square meter. It is well settled that the award under Section 11 of the said Act is in the nature of an offer. The claimant is not bound to accept the offer and if he objects to the offer, at his instance, a reference under Section 18 of the said Act can be made. In a reference under Section 18 of the said Act, the claimant is in the position of the plaintiff and therefore, the burden is on the claimant to prove that the offer was inadequate. If the claimant fails to discharge the burden, the Court is bound to dismiss the reference. Even if the reference is dismissed, the State remains bound by the offer under Section 11 of the said Act and therefore, the State is estopped from raising a contention that an amount which is less than what is provided in the offer should be paid by way of the market value. Moreover, a reference under Section 18 of the said Act is not an appeal against the award under Section 11 of the said Act. It is in the nature of original proceedings. If the claimant fails to discharge the burden on him, at highest the reference can be dismissed. The Reference Court is not empowered to reduce the compensation offered by the Award under Section 18 of the said Act. Hence, the said argument made by the learned AGP will have to be rejected. As a result of substitution of Section 25 of the said Act by Act No.68 of 1984 with effect from 24th September, 1984, the aforesaid legal position has been incorporated in the statute.

11. The Reference Court granted a sum of Rs.5,000/- on account of the trees on the acquired land instead of Rs.3135/- offered by the Special Land Acquisition Officer. In the crossexamination of the claimant, he admitted that he has not maintained an account in respect of the income received from the trees and that he has not indicated the income which he used to receive from the trees. He admitted that except his bare words, there was no evidence to show any income from the trees. He stated that he had not measured the size of the trees. On such evidence, there was no case made out for grant of enhancement as far as the value of the trees is concerned. In any event, in view of the definition of 'land' in Section 3 (a) of the said Act, the trees are part of the 'land'. Hence, the market value of the land and the trees thereon cannot be separately assessed.

12. The award under Section 11 of the said Act was made by the Special Land Acquisition Officer before 30th April, 1981. Therefore, in the light of the decision of the Apex Court, in the case of K.S. Paripoornan Vs. State of Kerala and others [(1994) 5 Supreme Court Cases 593], the Reference Court could not have granted benefit under Section 23 (1A) of the said Act. However, the claimants will be entitled to benefits under Section 23(2) and Section 28.

13. Hence, the appeal preferred by the State must succeed in part and I pass the following order :-

(i)The market value of the acquired land fixed by the Reference Court at the rate of Rs.35/- per square meter is hereby confirmed. The market value of the trees fixed at the rate of Rs.5,000/ is set aside;

(ii) That part of the award, which grants benefit under Section 23(1A) of the said Act is set aside. However, it is clarified that the Respondents will be entitled to benefits under Section 23(2) and Section 28 of the Land Acquisition Act, 1894 ;

(iii) Rest of the award regarding payment of costs is confirmed ;

(iv) The appeal is accordingly partly allowed with no order as to costs.

Appeal partly allowed.