2007 Supreme(Bom) 1359

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J.
The State of Maharashtra - Appellant
versus
Smt. Bhimabai Bhika Gondal - Respondent
FIRST APPEAL NO. 240 OF 2000
with
Civil Application No. 1176 of 2003
with
Cross Objection (Stamp) No. 9177 of 2001
Decided on: September 20,2007

Headnote:Land Acquisition Act, 1894 - Sections 4, 6, 11, 18 and 25-Claim for enhancement of compensation-Enhanced-Appeal against enhancement of compensation-Held that enhancement by Reference Court was right.-In order to rebut the contention of the State, on behalf of the claimants it is contended that the claimants, in fact, were entitled to compensation at the rate of Rs. 53,256/- per hectare for jirayat land and consequently higher rates for bagayat land. It is contended that there would be an increase in the price at the rate of 12 per cent per annum for the intervening period of the date of the sale deed and the date of notification. The sale instances relate to 1st February, 1980 and May, 1978, while the notification under Section 4 of the Act was issued on 19th November, 1981. Besides the annual increase in the sale price, no deduction can also be directed to be made from the determined price as the land has to be exempted from the point of view of an individual claimant and not collective acquisition. It is also our view that deduction is not an absolute proposition of law. Reliance in this behalf is placed upon the judgments of the Supreme Court in the case of (i) Bhagwathula Samanna and others v. Special Tahsildar and Land Acquisition Officer, 1991 DGLS 470 : JT 1991 (4) SC 56 : 1991 (2) Scale 613 : AIR 1992 SC 2298; (ii) Rameshwar Solanki v. Union of India, AIR 1995 Delhi 358, and (iii) Krishi Utpadan Mandi Samiti v. Bipin Kumar and another, 2004 DGLS 402 : AIR 2004 SC 1850 : JT 2004 (1) SC 344 : 2004 (2) SCC 283.

       The compensation determined by the Reference Court in LAR No. 89/90 is just, fair and in accordance with law. There is definite evidence on record as noticed by the Reference Court that if the lands are not purely bagayat lands, at least they are semi bagayat lands and thus their value has to be higher than the value falling in the jirayat zone. There is no dispute to the fact of identical location and potential of these lands, as they are purely agricultural lands. Thus, even the conclusion of the Reference Court that semi bagayat land should be paid compensation at a higher amount i.e. nearly Rs. 72,000/- per hectare cannot be interfered with.

       If the contention of the State is to be accepted that there has to be some element of deduction applied for the reason of smallness of plots involved in the sale instances and that the acquisition is of a high track of land, even in that case the deduction has to be of a minimum grade as there is no development project and the area was being acquired for an irrigation project. In such cases, it would be more than reasonable to apply a deduction of at least 15 per cent on he total value of the land which, in any case, would be liable to be set off against the price rise which the claimants would be entitled to for the intervening period of the sale instances and the date of notification. The grant of 10 per cent by the Reference Court would clearly be on the lower side and this could safely be so held in view of the judgments of the Supreme Court in the cases of Krishi Utpadan Mandi Samiti (supra) and Rameshwar Solanki (supra). Applying certain amount of guess work, the computation arrived at by the Reference Court, in fact, would remain by and large unaltered even as a result of acceptance of the various contentions raised before us.

       Land Acquisition Act, 1894 - Sections 4, 6, 18 and 25-Acquisition of land-Special Land Acquisition Officer had awarded compensation at rate of Rs. 6,000/- to Rs. 12,000/- per hectare depending upon nature of land-Claim for enhancement of compensation-Held that trend in increase of the land prices in those areas were also taken to be a relevant consideration.-It is a settled principle of law that the land of the adjacent villages can be made the basis for determining the fair market value of an acquired land. This principle of law is qualified by a clear dictum of the Supreme Court itself that wherever direct evidence i.e. the instances from the same village are available then it is most desirable that the Court should consider those instances rather than relying upon sale instances of the adjoining land. Thus trend in increase of the land prices in those areas was also taken to be a relevant consideration.

       Land Acquisition Act, 1894 - Sections 18, 25, 23(1-A), (2) and 28-Claim for enhancement of compensation-Due to loss of their livelihood- Delay in filing cross-objection to enhancement-Held that claimants are liable to get statutory benefit.-Having discussed the compensation payable to the claimants, now we may also notice that in First Appeal No. 240 of 2000, Civil Application No. 1176 of 2003 was filed for condonation of delay in filing the cross-objections in the said appeal. The applicants have stated the reasons that they were deprived of their livelihood and as they did not receive the additional compensation, they could not file the cross-objections in time. This by itself may not have been a sufficient reason for condoning the delay in filing the cross-objections. But, since the State appeals were heard on merits, in all fairness, the cross-objections filed by the respondents could be heard along with the appeals itself. Thus, we allow this application and condone the delay in filing the cross-objections.

       The law prevalent at the time of issuance of the notification would govern the rights and obligations of the parties and the claimants would be bound by the value stated by them before the SLAO at the very first instance. In this connection reliance has been placed on the judgments of the Supreme Court in the cases of Ujjain Vikas Pradhikaran Ujjain Development Authority v. Tarachand and another, 1996 DGLS 1025 : AIR 1996 SC 2777 : JT 1996 (7) SC 206 : 1996 (5) Scale 685 : 1996 (5) SCC 574; The Land Acquisition Officer-cum-DSWO, A.P. v. M/s. B.V. Reddy and Sons, 2002 DGLS 195 : JT 2002 (2) SC 53 : AIR 2002 SC 1045 and the Division Bench decision of this Court in State of Maharashtra v. Govind Goma Vovari and others, 2006 (2) Mh LJ 55.

       In the present case the notification was issued on 19th November, 1981; the award was made on 15th September, 1986. The claimants had initially claimed compensation at the rate of Rs. 40,000/- and thereafter amended their claim claiming compensation at the rate of Rs. 80,000/- per hectare. The claimants thereafter, by further amending their claim, claimed enhanced compensation at the rate of Rs. 96,000/- per hectare. The Reference Court in Land Reference No. 89 of 1990 giving rise to First Appeal No. 240 of 2000 relied upon the judgments of the Supreme Court and granted compensation to the claimants at the rate of Rs. 40,000/- per hectare despite the fact that it determined higher market value of the land but the same ratio was not applied by the Reference Court in relation to the other appeals. In all these appeals the claimants had claimed compensation at the rate of Rs. 40,000/- per hectare. At no point of time they claimed higher rate before the SLAO. The provisions of Section 25(2) thus would place bar upon the power of the Courts to grant higher compensation to the claimants as the relevant cut-off date would be the date of notification under Section 4 of the Act.

       The above principle was also in line with the judgment of the Supreme Court in Tarachand’s case (supra) where it was held that the Court was precluded from awarding compensation beyond the amount claimed by the party and that awarding in excess thereof would be illegal. In both these judgments the contentions raised by the claimants were duly examined by the Court and were found to be inconsequential. The Division Bench of this Court in the case of Govind Goma Govari (supra), however, did not refer to the above two Supreme Court decisions but came to the same conclusion that the unamended provisions of Section 25(2) would be applicable in reference to the notification issued under Section 4 of the Act. However, the judgment relied upon by the claimants had not dealt with the proposition and the principle of ratio decidendi has no application to the facts of the present case. The judgments primarily related to post-amendment and are on the point that in view of the amendment of the provisions of Section 25 of the said Act, the Government would be under an obligation to grant equal compensation to the claimants and powers vested in the Reference Court to grant adequate compensation, irrespective of the claim and bar contemplated under that section, are much wider in face of power under amended Section 25 of the Act.

       At this stage it may be appropriate to notice the judgments in the case of Ghaziabad Development Authority v. Anoop Singh and another, 2003 DGLS 74 : AIR 2003 SC 1004 : JT 2003 (1) SC 458 : 2003 (1) Scale 376 : 2003 (2) SCC 484 and Union of India v. Pramod Gupta by LRs and others, 2005 DGLS 408 : 2005 (12) SCC 1, though the same were not cited by the counsel for the parties. In the case of Anoop Singh (supra), a Division Bench of the Supreme Court had taken a view that once amendment of the claim petition was carried under the provisions of the Code of Civil Procedure as permissible under Section 53 of the Act, the pre-amendment bar contained in Section 25 would not be attracted and the Court could award higher compensation to the claimants. In the case in hand the amendment applications have been filed and amendment has been carried out as well. Thus on the strength of the judgment in Anoop Singh (supra) the claimants could have claimed higher compensation. However, subsequently the Supreme Court in the case of Pramod Gupta (supra) has held as under :

       "136. In Anoop Singh whereupon reliance has been placed by Mr. Salve, the Division Bench of this Court did not have any occasion to consider that decisions of this Court in Krishi Utpadan Mandi Samiti v. Kanhaiya Lal and B.V. Reddy, 2000 DGLS 1490 : AIR 2000 SC 3282 : JT 2000 (Supp. 1) SC 251 : 2000 (6) Scale 649 : 2000 (7) SCC 756 : 2000 (6) Supreme 529, which, it will bear repetition to state, are authorities for the proposition that once it is held that Section 25(2) of the Act would be attracted in a given case, the parties are estopped and precluded from claiming any amount higher than that claimed in their claim petition before the Collector. An observation made to the effect that an application under Order VI, Rule 17 would be maintainable having regard to Section 53 of the Act, with utmost respect, does not constitute a binding precedent. No ratio has been laid down therein and the observations made therein are without any discussion. Furthermore no reason has been assigned in support of the said proposition of law."

       This being the law, in Court’s opinion, the Court cannot grant higher compensation to the claimants than the one claimed by them. Thus, First Appeal No. 240 of 2000 is dismissed as we cannot find any error of law, fact or even in appreciation of evidence and in judgment of the Reference Court.

       Other State appeals are partly allowed and held that the claimants would be entitled to uniform compensation at the rate of Rs. 40,000/- per hectare or any other amount they had claimed before the Collector and higher amount claimed before the Reference Court would not be tenable in view of the bar contained in the unamended provisions of Section 25(2) of the Act. All the civil applications are also accordingly disposed of.

       The claimants are also entitled to the statutory benefits payable in terms of Section 23(1-A) at the simple rate computed at the rate of 12% p.a. and would also be entitled to the benefit of provisions of Sections 23(2) and 28 of the Act on the market value determined by this Court. It is needless to state that the State is at liberty to recover the excess amount, if any, paid to the claimants as per the Reference Court judgment. Consequently Cross- Objection (Stamp) No. 9177 of 2001 also stands dismissed. However, we leave the parties to bear their own costs. Decree be drawn up in terms of the above judgment.

       Land Acquisition Act, 1894 - Sections 4, 18 and 23 - Acquisition of land - Compensation - Determination of market value - Sale instances of land of adjacent villages - Comparability, potential and utility similar - Sale instances of nearby village relied upon by Court is of no consequence. - In addition to the above settled principle of law, we may further notice another aspect of this case and that is, the SLAO had himself taken large number of sale instances into consideration of village Vetale. In fact, the compensation was determined by him with reference to the sale of the land in village Vetale. This fact would stare the State in face and they cannot be permitted even to raise this contention. Once the comparability, nature of the land, its potential and utility are similar, in that event, the mere fact that the sale instances relied upon by the Court relates to an adjacent village would hardly be of any consequence. The reasoning given by the Reference Court in LAR No. 89/90 is correct and does not call for any interference by High Court in First Appeal. The oral and documentary evidence clearly demonstrates that the sale instances taken into consideration by the trial Court fell within the ambit of admissible and relevant evidence.

       Land Acquisition Act, 1894 - Section 25 - Acquisition of land - Award of compensation - Limitation for - Court’s power not limited to award just and proper compensation - Similar compensation must be paid to all claimants - Reference Court’s power to grant adequate compensation much wider irrespective of claim and bar contemplated under Section 25 of Act. - The Court was precluded from awarding compensation beyond the amount claimed by the party and that awarding in excess thereof would be illegal. In both these judgments the contentions raised by the claimants were duly examined by the Court and were found to be inconsequential. The Division Bench of High Court in the case of Govind Goma Govari (supra), however, did not refer to the above two Supreme Court decisions but came to the same conclusion that the un-amended provisions of Section 25(2) would be applicable in reference to the notification issued under Section 4 of the Act. However, the judgment relied upon by the claimants had not dealt with the proposition and the principle of ratio decidendi has no application to the facts of the present case. The judgments primarily related to post-amendment and are on the point that in view of the amendment of the convictions of Section 25 of the said Act, the Government would be under an obligation to grant equal compensation to the claimants and powers vested in the Reference Court to grant adequate compensation, irrespective of the claim and bar contemplated under that section, are much wider in face of power under amended Sect ion 25 of the Act.