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2005 Supreme(Bom) 1369
IN THE HIGH COURT OF BOMBAY
STATE OF MAHARASHTRA
Versus
POSHA RANGU MHATRE
Decided On : (October 5, 2005) 2006
Headnote:Land Acquisition Act, 1894 - Sections 4, 18 and 23 - Acquisition of large extent of land admeasuring about 4 acres 24 Area and 30 sq. metres - Market value cannot be evaluated by Reference Court on metre basis. - Land admeasuring 4 acres 2240 sq. metres was acquired under the same notification. Though for revenue purposes it was divided under different survey numbers, nevertheless, the land continued to be a large chunk of land under single ownership. Merely because the land is divided in different pieces of land for the purpose of survey and revenue assessment, it would not change the size of the land vis-a-vis its owner and that would be a material factor to be taken into consideration for the purpose of deciding the issue as to whether the land is large extent of land or not. Considering the same, therefore, merely because the area of 4 acres and 2240 sq. metres comprised of different survey numbers with different areas in relation to each of the survey numbers, that would not enure to the benefit of the claimant. The Reference Court, therefore, could not have evaluated the market value on metre basis but ought to have considered the same on acre basis. However, that by itself would not be a justification to interfere with the impugned award, if ultimate compensation which has been awarded is found to be just and proper. (1996) 7 SCC 554 - Referred.
Land Acquisition Act, 1894 - Sections 9 and 25(2) and Evidence Act, Sections 114 and 104 - Service of notice under Section 9(3) upon the claimant - Averment by claimant about its non-service in application for reference - Not sufficient to discharge burden upon claimant under Section 25(2) - Claimant has to enter the witness-box and make a categorical statement on oath to that effect. - Where the notice under Section 9(3) of the Land Acquisition Act was said to have been duly served upon the claimant and the claimant made a specific averment in the application for reference under Section 18 about non-service on such notice on him.
Held, that the claimant desiring the Court to overcome the restrictions imposed under Section 25(2) in relation to the bar against awarding compensation over and above the one awarded by the Land Acquisition Officer, in the absence of claim in that regard by the claimant in answer to Section 9 notice, it is absolutely necessary for the claimant to establish the fact about non-receipt of the notice and that could have been done only when he had entered the witness-box by making a categorical statement to that effect. In the absence of such statement, the presumption available in favour of the respondents under Section 114 of the Evidence Act will stand. Besides, the provisions of Section 104 of the Evidence Act also will come in the way of the Court in considering the evidence regarding enhancement of compensation over and above the one awarded by the Land Acquisition Officer, considering the fact that the claimant failed to discharge the burden in that regard. It is to be held that the claimant had not put forth his claim in answer to Section 9 notice and, therefore, the Reference Court was not empowered to award over and above what was awarded by the Land Acquisition Officer.
Land Acquisition Act, 1894 - Sections 18 and 23 - Evaluating market value of piece of land under acquisition - Factors to be considered - Reference Court must analyse evidence available on all factors - Cannot choose any one of the factors as sufficient to decide the market value. - In order to ascertain market value of the land on the date of the notification under Section 4(1) of the Land Acquisition Act, the methods of valuation may be (1) opinion of experts, (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the land acquired and possessing similar advantages, and (3) a number of years purchase of the actual or immediately prospective profit of the lands acquired. When the evidence on all the three factors or more than one factor is available on record, it is necessary for the Reference Court to analyse all such evidence in a proper perspective in order to arrive at the market value of the land. Undoubtedly, if there is no evidence available in relation to one of the factors, certainly it would not be a hurdle for the Reference Court to ascertain the market value on the basis of remaining two factors in respect of which evidence is available on record. But that does not mean that the Reference Court will have an option to choose any one of the factors to be sufficient to decide the market value. The Reference Court chose only one method i.e. evidence of the expert, which is contrary to the law laid down by the Apex Court in Ravinder Narain ’s case reported in (2003) 4 SCC 481 and is sufficient to interfere in the impugned award. AIR 1959 SC 429 - Referred.
Land Acquisition Act, 1894 - Section 23 - Market value - Method of valuation by capitalization - Applicability - When the sale instances are available question of adopting capitalization method may not arise but when such evidence is not forthcoming from the claimant, method of capitalization may be adopted. - When the sale instances from the locality from which the land is acquired or in the neighbourhood areas are available, question of adopting capitalization method for the purpose of valuation may not arise. However, when such evidence is not forthcoming from the claimant, the Court is left with no alternative than to adopt the method of capitalization and, for that purpose, it is necessary for the claimant to bring on record evidence regarding annual income from the agricultural land. The claimant, in this case, has not produced any evidence either relating to the income derived from the land in question or relating to any of the factors referred to by Apex Court in the case of O. Janardhan Reddy, AIR 1995 SC 186, which could assist the Court in ascertaining the market value of the agricultural land. In the absence of any material on record regarding either of the annual income from the land or factors referred to above in the decision of the Apex Court, the Reference Court merely on relying upon the testimony of the valuer which is absolutely of no help to ascertain the market value of the land in question, could not have determined the compensation @ Rs. 15/per sq. metre. There was no material before the Reference Court to grant any enhancement over and above the compensation awarded by the Land Acquisition Officer.
Land Acquisition Act, 1894 - Section 23 - Market value - Potentialities of land are to be considered with reference to those existing on the date of issuance of the notification under Section 4. - Considering the normal rule that the market value will depend upon the offer by a willing buyer of the agricultural land, which is also surrounded by the agricultural lands showing no sign of non-agricultural activities therein, can hardly be considered as non-agricultural land nor can be assessed as otherwise. On the contrary, such land has necessarily to be evaluated for the purpose of market value considering the same as an agricultural land bearing in mind the other potentialities of such land as existing on the date of the issuance of the notification under Section 4 and bearing in mind the surrounding circumstances prevailing then.
R. M. S. KHANDEPARKAR, J.
( 1 ) HEARD.
( 2 ) THE appeal and the cross-objections arise from the judgment and award dated 27-7-1989 passed by the Civil Judge, Senior Division, Alibag in Land reference Case No. 38 of 1989.
( 3 ) BY the notification issued on 3rd February, 1970 under section 4 of the land Acquisition Act, 1894 (hereinafter called as "the said Act") the claimants land bearing Survey Nos. 31/5 plus 8a 35/1, 48/1, 49/4, 50/4 total admeasuring 18, 430 sq. metres in area situated in the village of Owe, Taluka Panvel, District raigad was sought to be acquired for New Bombay Project. The notice under section 9 (3) was issued on 7-3-1975. The award under section 11 came to be declared on 31-7-1986, awarding total compensation of Rs. 25,007. 62. Being aggrieved, the claimant preferred an application under section 18 of the said Act, claiming enhancement, at the rate of Rs. 15. 00 per sq. metre. During the pendency of the proceedings before the Reference Court, the claimant sought to enhance the claim by way of amendment to Rs. 25. 00 per sq. metre. The reference Court, on completion of recording of evidence, enhanced the compensation at the rate of Rs. 15. 00 per sq. metre. Being aggrieved, the State has filed the present appeal. Being dissatisfied with the compensation enhanced by the Reference Court, the claimant preferred cross-objections.
( 4 ) THE learned Assistant Government Pleader appearing for the appellant - state while assailing the impugned award submitted that the Reference Court could not have awarded the compensation over and above which was awarded by the Land Acquisition Officer, considering the fact that the claimant had not made any claim in answer to section 9 notice served upon him and, therefore, the provisions of unamended section 25 (2) were squarely applicable. Without prejudice to this submission, he has submitted that the Reference Court could not have assessed the market value on metre basis, considering the fact that it is a large extent of land, besides that the evidence on record clearly disclosed the land acquired was the agricultural land and the land in the vicinity had no N. A. potentiality as such and, therefore, the same ought to have been considered as an agricultural land for the purpose of evaluating the market value thereof. The claimant had not placed on record any sale instance from the village of Owe and whatever sale instances or decisions in Reference Cases which were relied upon by the Valuer of the claimant were in relation to neighbouring villages and that too of small pieces of land which were having N. A. potentiality. In the absence of comparability being established between those lands with the land in question, the Reference Court could not have considered those instances for enhancement of the compensation in relation to the land in question. In any case, even assuming that those sale instances and the judgments of the reference Court could have been the basis for evaluating the market value of the land in question, it was necessary to deduct l/3rd of the amount so assessed towards the development charges before arriving at the final figure regarding the market value of the land in question. Having failed to do so, the reference court has acted arbitrarily while fixing the compensation payable to the claimant. He has sought to rely upon the decisions of the Apex Court in the matters of Pitambar Hemilal Badgujar (Dead) by LRs and others vs. Sub- divisional Officer, Dhule and another reported in (1996) 7 SCC 554; Kanvar singh and others vs. Union of India reported in (1998) 8 SCC 136 and Ravinder narain and another vs. Union of India reported in (2003) 4 SCC 481 in support of his contentions.
( 5 ) THE learned advocate appearing for the claimant, on the other hand, referring to the testimony of the Valuer along with his report at Exhibit 19 and the plan of the acquired land at Exhibit 20, submitted that the elaborate testimony of the Valuer read with the documen
