First Appeal No. 295 of 2001,With Civil Application No. 459 of 2009,Civil Application No. 450 of 2012

30th March, 2012

Petitioner Counsel: Mr. D.R. KORDE
Respondent Counsel: Mr. D.V. SOMAN Mr. M.C. GHODE

Cases Cited:
Dy. Collector, Land Acquisition, Gujarat & Anr. Vs. Madhubai Gobarbhai & Anr, 2010(2) ALL MR 975 (S.C.) [Para 11,15]
Osman Khan Abdul Majid Khan & Anr. Vs. State of Maharashtra, 1994 (2) Mh.L.J.1103 [Para 11]

JUDGMENT

JUDGMENT :- This First Appeal was finally heard on 20.03.2012 and it was reserved for pronouncement of judgment. The judgment was to be pronounced on 02.04.2012. However, in view of new roster, the date of pronouncement of the judgment is preponed for today.

2.The First Appeal takes exception to the judgment and award dated 12.08.1998 passed by the Court of Civil Judge, Senior Division, Gangakhed, in L.A.R. No. 22 of 1997 (L.A.R. No. 18 of 94 Old).

3.The respondent herein, who is original applicant, is owner and possessor of land Gat No. 55 admeasuring 7 H 26 R of village Daku Pimpri, Tal. Pathri. The appellant/State acquired a portion of 3 H 67 R land out of Gat No. 55 for the purpose of rehabilitation of the village. The Tahsildar Pathri took over the possession of the land on 18.07.1991 with the consent of the applicant. Thereafter, notification under section 4 of the Land Acquisition Act was published in the official gazette on 12.09.1991. Said notification was served to the applicant on 04.02.1992. There was urgency in the matter and the land was taken for rehabilitation. Therefore, the possession of the land was taken over by effecting panchanama, prior to publication of the notification under section 4 of the said Act. After taking over possession of the acquired land by the non-applicant i.e. appellant herein, the land was developed into plots and the plots were distributed to the villagers and they started residing on the said plots.

4. It is case of the respondent herein that there was Neem tree standing in the land. Said tree was aged about 10 years. However, the State authorities did not record the existence of said tree in the panchanama, nor compensation amount was awarded for the said tree.

5. The Land Acquisition Officer made advance payment of Rs. 1,56,000/- to the applicant on 03.03.1992, which was received by him under protest. Thereafter, the applicant had received notices dated 22.03.1993 and 12.04.1993 under section 9 of the said Act. The respondent herein i.e. original claimant/applicant submitted his claim statement on 21.04.1993 claiming the compensation amount of the acquired land at the rate of Rs.2 lakh per hectare. The applicant, did file certified copies of sale-deed along with claim statement.

6.The Land Acquisition Officer passed award on 04.04.1994 granting total compensation amount of Rs. 2,85,159/- including solatium etc. Notice under section 12 (2) of the Act was served to the applicant on 04.04.1994. Original applicant had withdrawn the compensation amount under protest on 15.04.1994. It was case of the applicant that the Land Acquisition Officer did not properly calculate the market value of the acquired land. The prevailing market price in the vicinity on the date of notification under section 4 of the Act, was not less than Rs. 2 lakhs per hectare. Therefore, the applicant did claim compensation amount at the rate of Rs.2 lakhs per hectare. It appears that various sale instances were placed on record by original claimant/applicant in support of his case that the price of the land in the said vicinity is Rs.2 lakhs per hectare.

7. The appellant herein filed the written statement at Exh.10. It was contended in said written statement that the Land Acquisition Officer had taken into consideration the type, quality, situation, potentiality and geographical location of the land and then on conscious application of mind, had granted compensation, which is proper and reasonable.

8. The Reference Court framed as many as six issues for determination vide Exh.11. The first issue i.e. Does the petitioner prove that compensation awarded by the Special Land Acquisition Officer is inadequate? has been answered in the affirmative. The Reference Court has calculated and awarded Rs.1,50,000/- per hectare. The other issues are also addressed. Issue No. 5 i.e. Whether the claimant is entitled to solatium and interest as prayed? has been answered in the affirmative.

9. Being aggrieved by the said judgment and order of the Reference Court, this First Appeal is filed by the State. This appeal came to be filed on 04.07.2001. By order dated 09.02.2004 the record and proceedings were summoned. With the able assistance of learned A.G.P. appearing for the appellant/State and learned Counsels appearing for the respondents, the First Appeal was finally heard on 20.03.2012.

10. Learned A.G.P. appearing for the State submitted that the Land Acquisition Officer taking into consideration other sale instances from the vicinity for the period from 1989 to 1991 has correctly arrived to the conclusion and accordingly compensation is paid to the respondent. According to learned A.G.P. the sale instance which is relied upon by the Reference Court while enhancing the compensation, is only in respect of 6 R land. It is submission of learned A.G.P. that other sale instances ought to have been relied upon by the Reference Court. Since the respondent's land to the extent of 3 H 67 R has been acquired by the appellant/State and sale instance of only 6 R land could not have been relied upon by the Reference Court. It is further stated that the Land Acquisition Officer has awarded compensation at the rate of Rs. 500/- per R. However, the respondent in pursuance of notice under section 9 (3) (4) of the Act claimed compensation at the rate of Rs. 2000/- per R. However, said claim was not supported by any documentary evidence. It is submitted that the land under acquisition is the land under clause "D" i.e. Jirayat land and same has been acquired for the rehabilitation purpose. It is further submitted that the Reference Court was not correct in holding that the land under acquisition is having any potentiality. Therefore, relying upon the grounds taken in the appeal, annexures thereto and original record and proceedings, learned A.G.P. submits that this First Appeal may be allowed.

11. On the other hand, learned Counsels appearing for the respondents submitted that the acquisition of the land was for the purpose of rehabilitation of project affected persons. That itself would indicate that the land which was acquired by the appellant/State had N.A. potentiality. It is further submitted that the land under acquisition is situated in Gat No. 55, which is adjoining to Latur-Buldhana road and also adjacent to Sonpet-Pathri road. Said road is State highway No.171. It is further submitted that the land is having agricultural and N.A. potentiality. Godawari river passes through the village where the laid is situated and therefore the Reference Court has rightly considered the said fact and reached to the correct conclusion and awarded Rs.1.50 lakhs per hectare. Therefore, this Court may not interfere in the impugned judgment and award. Learned Counsel further invited my attention to the three sale instances at Exhs. 43 to 45 and submitted that sufficient and cogent evidence was placed on record by the respondent. The Reference Court has rightly allowed the claim of the respondent. Therefore, this Court may not interfered in the said judgment and order. Learned Counsel in support of his contention that even in same area or vicinity, the prices may vary depending upon situation of the land and N.A. potentiality, placed reliance upon reported judgments of the Supreme Court in the case of Dy. Collector, Land Acquisition, Gujarat & Anr. Vs. Madhubai Gobarbhai & Anr., 2010 (2) All MR 975. Learned Counsel also placed reliance upon reported judgment of this Court in the case of Osman Khan Abdul Majid Khan & Anr. V/s. State of Maharashtra, 1994 (2) Mh.L.J.1103 and submitted that if the land under acquisition has potentiality of being used as building site, or for non-agricultural purposes, in that case even the sale transactions of smaller property can be placed reliance while determining the value of the said property. Therefore, relying upon findings recorded by the Reference Court, written notes of arguments placed on record and the judgment of the Supreme Court as well as this Court cited supra, learned Counsel appearing for the respondents submits that the First Appeal is devoid of any merits and same may be dismissed.

12. Since, this is a First Appeal, I have considered the rival submissions on law as well as facts. The record and proceedings are made available for perusal. On careful perusal of the impugned judgment of the Reference Court, it is abundantly clear that, the appellants herein did not produce any cogent evidence in support of their case that the price/compensation determined by the Land Acquisition Officer is reasonable and proper. The Reference Court in para 14 of the judgment observed that the non-applicants have not examined any witness nor have produced any document on record in rebuttal to dispute the claim made by the applicant. It is further observed that on perusal of true copy of award Exh.38, it is apparent that it is cyclostyled form and only the gaps are field up by the Land Acquisition Officer. In the award the applicant has submitted his claim statement in answer to notice under section 9 of the Act and the applicant had relied on the sale instances of the land Gat No.57. The Reference Court has also observed in said paragraph that the Land Acquisition Officer and the Tahsildar, Pathri had not got valued the acquired land from any expert. The Land Acquisition Officer had relied on the sale instance of the lands of village Daku Pimpri from the year 1988 to 1991. The lands were grouped in different categories on the basis of the land revenue assessment and only on the basis of the land revenue assessment, the market price of the acquired land had been fixed. It is further observed that admittedly the land revenue assessment had been made long ago before some 100 years back and since then there is no revision in the land revenue assessment. That method is of no help for fixing the market price of the lands as during this long period, on account of developments and modern techniques, the types and qualities of the lands have been increased. Moreover, in the award itself, the Land Acquisition Officer has held that the acquired land Gat No.55 was of black soil and had irrigation potentiality.

13. The appellants herein did not produce any cogent evidence on record neither any witness was examined in support of their contention that the prices determined by the Land Acquisition Officer was proper and it was in accordance with the market value of the property. On the contrary, the Land Acquisition Officer in the award has mentioned that the land Gat No. 55 i.e. the land acquired was of black soil and had irrigation potentiality. The fact that the land was acquired for the purposes of rehabilitation of the project affected persons, that itself would indicate that the acquired land had N.A. potentiality.

14. The Reference Court in paras 16 & 17 of the judgment has in detail considered the sale instances which were placed on record and recorded satisfaction that the acquired land is of good quality black soil and had irrigation potentiality and also N.A. potentiality and therefore awarded compensation of Rs. 1.50 lakhs per hectare. Since, this Court is in agreement with the findings recorded by the Reference Court, it is not necessary to reproduce or reiterate what has been discussed by the Reference Court in para 14 to 16.

15. Learned Counsel appearing for the respondent is perfectly justified in placing reliance upon judgment of the Supreme Court in the case of Dy. Collector, L.A., Gujarat (Supra) wherein the Supreme Court considered the point that, price of the land even in same vicinity can differ depending upon N.A. potentiality of the said land. In para 52 of the judgment, the Supreme Court has considered potential development and/or likelihood of development as important factor while considering the price of the land. The Supreme Court has also considered that ordinarily the entire village should not be treated as one unit as 'even in the same village, no two lands command the same market value' as potentially, the fact that land abutting a National High-way or road would command a higher market value vis- a-vis the land situated at a location which is not so situated. Therefore, if the facts of this case are examined in the light of aforesaid pronouncement, it is crystal clear that the land under acquisition is situated on Latur-Buldhana state high-way and Sonpeth-Pathri road. The fact that the acquisition of the land itself is for rehabilitation of project affected persons is itself indicative factor to hold that, the land had N.A. potentiality. It is also not in dispute that from said village river Godawari passes nearby and as observed by the Land Acquisition Officer himself, the said land had irrigation potentiality. Therefore, in my considered opinion, viewed from any angle the price which is determined by the Reference Court cannot be said to be unreasonable or contrary to the evidence brought on record. The respondent herein claimed Rs.2 lakhs per hectare. However, the Reference Court has granted only Rs. 1.50 lakhs per hectare. Therefore, on overall assessment of the evidence and the facts involved in the case and the sale instances which are brought on record and the fact that the land under acquisition had N.A. potentiality and also agricultural potentiality, the Reference Court is perfectly justified in holding that the price of said land at the relevant time was Rs. 1.50 lakh per hectare.

16. Apart from the evidence and the facts involved in the case, the important aspect of the matter is that, the land under acquisition is ancestral property of the respondent. Since, it is ancestral property, naturally the respondents are emotionally attached to said property. By no stretch of imagination, such attachment with the property cannot be counted and compensated in terms of money. However, the respondents are satisfied with the price determined by the Reference Court and they have not challenged the said judgment. Therefore, for the reasons aforesaid, this Court has no hesitation to hold that the findings recorded by the Reference Court are in consonance with evidence on record and price determined is just and proper. Hence, the First Appeal is devoid of any merits.

17. At this stage, it is submitted by the Counsel for the respondent that the appellants have not deposited the amount. However, this position is disputed by the learned A.G.P. and on instructions he makes statement that, the amount is deposited in the Reference Court and it is kept in the fixed deposits. It is needless to clarify that, since this First Appeal is dismissed, the respondents will be free to withdraw the amount with interest, within four weeks from today. Since the respondents/claimants whose land is acquired, were compelled to face this litigation, the respondents are entitled for the costs from the appellant. Therefore, this is a fit case in which the appellant is required to be directed to pay costs which is quantified at Rs. 10,000/- (Rupees Ten Thousand) to the respondents. Such costs amount to be deposited within six weeks. It is needless to mention that on depositing the costs by the State within six weeks from today, the respondents will be entitled to withdraw the same unconditionally without any formal application.

18. The First Appeal is dismissed with costs of Rs. 10,000/- (Rupees Ten Thousand).

19. In view of dismissal of the First Appeal, Civil Applications do not survive and stand disposed of.

Ordered accordingly.