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2007 Supreme(Bom) 988
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J.
The State of Maharashtra — Appellants
Versus
Yashwant Kahnu Shirsath — Respondent.
FIRST APPEAL NO. 896 OF 2005
IN, L.A.R . NO. 88 OF 1998, FIRST APPEAL NO. 940 OF 2005
IN, L.A.R . NO. 528 OF 1997
Judgment delivered on: July 19, 2007
Mr. K.K. Tated, Assistant Government Pleader, for the appellants.
Mr. P.B. Shah for the respondent.
Headnote:Land Acquisition Act, 1894 - Sections 4, 11 and 18-Claim for compensation of land acquired-Awarded by LAO, at Rs. 35,000/- to Rs. 65,000/- per hectare-Claim for enhancement-Enhanced by Reference Court to Rs. 1.20 lakhs to Rs. 1.50 lakhs due to quality of land-Challenged-Held that appeal is liable to be set aside.-On observing facts and circumstances of the case, all the appeals filed by the State are liable to be dismissed while the cross-objections/cross-appeals of the claimants are to partially succeed and the claimants would be entitled to receive uniform compensation at the rate of Rs. 1.50 lacs per hectare. The claimants would also be entitled to statutory benefits of Sections 23 and 23(1-A) of the Act as also 30% solatium of the land value. The claimants shall also be entitled to interest on the enhanced amount in terms of Section 28 of the Act. All the appeals of the State are dismissed while the cross-objections/cross-appeals of the claimants are partially allowed. However, in the facts and circumstances of the case we leave the parties to bear their own costs.
Land Acquisition Act, 1894 - Sections 4, 11 and 18-Claim for enhancement of compensation-Enhanced-State appeal-Against enhancement of compensation-Held that claimants are liable to get enhanced compensation.-The above exhibits relate to different villages and are not identically situated like the acquired land. Exhibit 24 was also not considered to be a relevant piece of evidence by the Reference Court we accept the reasoning given by the Reference Court in relation to this evidence adduced by the claimants. Referring to the judgments of the Reference Court in other cases, the Court dealing with the present references found that the judgments in L.R. Nos. 348/96, 262/96 and 168/95 relating to village Mukane and Rayambe were again found to be not relevant for determination of the fair market value for the reason that in those cases the location and potential of the land was different than the present lands and primarily for their distance from the industrial area in Igatpuri. It was also noticed that there was some difference in the valuation relatable to the crop of the lands in question.
The land was an agricultural land from the revenue estate of village Kavanai, Tal. Igatpuri. The entire acquired lands, subject-matter of the present appeals, also relate to the revenue estate of the same village. Thus, Exhibit-19 is the relevant and comparable piece of evidence. The acquired land being agricultural and similarly situated would also have the same potential. PW 1, Bhausaheb Shankar Shirsath, stated that village has Gram Panachayat Office and all facilities such as electricity, hospital, roads, etc. are available and there is a Fort within the revenue estate of the village. According to him, Mukane, Rayambe and Wadivarhe are the villages adjacent to village Kavanai and geographical situation of these villages and quality of land in the area are similar. He further stated that the railway station is at a distance of two kilometres and Igatpuri is at a distance of 8 to 10 kilometres and acquired lands are within one kilometer distance of village Kvanai. Another witness, Shivaji Mahadu Patil (PW 2) in his statement stated that he had purchased the land Gat No. 149 in village area of Kavanai from Mahadu. The land was jirayat and purchased at the total consideration of Rs. 60,000/-. In the light of this oral and documentary evidence, it has to be construed that Exhibit P-19 is a relevant and comparable sale instance which can easily be made the basis for determination of the fair market value of the land in question.
In fact even before us the parties are ad-idem that Exh. 19 is a comparable and relevant piece of evidence, with reference to which, just and fair market value of the land as on the date of acquisition could be fixed. Even the reference Court did not apply any deduction on this count and awarded Rs. 1.50 lacs per hectare in relation to some of the acquired lands. The classification made by the Reference Court has also been questioned before us in the present appeals, which we will shortly proceed to discuss. Thus in Court’s view, there is no occasion before the Court to apply any deduction in relation to Exh. 19, which is identical to the land in question in terms of potential, user, value and utility.
Land Acquisition Act, 1894 - Sections 4, 11 and 18-Limitation Act, 1963, Section 5-Suit for enhancement of compensation-State appeal filed-Cross-objections for further enhancement filed by claimants-Application filed for condonation of delay-On ground that they are illiterate persons and their source of livelihood was only land which has been acquired by Government-Held that delay in filing cross- objection is liable to be condoned.-The cross-objections preferred by the claimants are barred by time. It has been stated in the application for condonation of delay that the claimants are poor persons and the only source of income, that is the land, was taken away by the acquiring authority long time back and for a considerable time compensation was not paid to them which resulted in delay in filing the cross-objections. For these reasons, Court has no hesitation in accepting their application for condonation of delay. Another reason for condoning the delay is that the State appeals arising from the same judgment were being heard by the Court when this request was made on behalf of the claimants. Thus, even the interest of justice would demand that the cross-objections of the claimants are heard along with the State appeals. Consequently, the delay in filing the cross-objections is condoned. The cross-objections are admitted for hearing.
SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J.
The State of Maharashtra — Appellants
Versus
Yashwant Kahnu Shirsath — Respondent.
FIRST APPEAL NO. 896 OF 2005
IN, L.A.R . NO. 88 OF 1998, FIRST APPEAL NO. 940 OF 2005
IN, L.A.R . NO. 528 OF 1997
Judgment delivered on: July 19, 2007
Advocates appeared:
Mr. K.K. Tated, Assistant Government Pleader, for the appellants.
Mr. P.B. Shah for the respondent.
JUDGMENT (Per Swatanter Kumar, C.J.):
The above two appeals were taken as lead cases out of the bunch of 159 First Appeals listed together for hearing. Various learned counsel appearing for the respective parties advanced their arguments by referring to the evidence in these two cases. Thus, by this common judgment, we will dispose of all these appeals as they are based upon common evidence and on somewhat similar facts.
2. The facts necessary for disposal of these appeals are that the Special Land Acquisition Officer, exercising his powers on behalf of the Government, issued a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”), intending to acquire the land for the project of Mukane Dam from different villages as they were adjacent to each other. This also included the land from village Kavanai, Taluka Igatpuri, District Nashik. The notification was issued on 25th May, 1994 acquiring nearly 460.92.81 hectors of land. After issuance of this notification, undisputedly the procedure prescribed under the provisions of the Act was followed whereafter the Special Land Acquisition Officer vide his award dated 20th October, 1995, awarded compensation to the claimants in respect of the acquired lands at different rates of Rs. 35,000/-, 40,000/-, 45,000/-, 50,000/-, 55,000/-, 60,000/- and 65,000/- per hector depending upon various factors. The claimants being dissatisfied from the award of the said Officer preferred references under Section 18 of the Act which, in turn, were sent by the Collector to the Court of competent jurisdiction and the 5th Additional District Judge, Nashik, vide his judgment and award dated 31st August, 2004, granted additional compensation to the claimants at the rate of Rs.1,20,000/-, 1,30,000/- and 1,50,000/- per hector depending upon the revenue to which these lands were assessed. Though the original claimants had accepted the compensation on 16th November, 1995, still they preferred references under Section 18 of the Act which were filed by them on 23rd December, 1995. They claimed compensation at the rate of (i) Rs.4,00,000/- per hector for bagayat/Tari (paddy) land, rabbi land and jirayat land and Rs. 1,00,000/- for pot kharaba land. The possession of the land was also taken by the acquiring authority on 1st July, 1994. Being aggrieved by the judgment and award dated 31st August, 2005, the State filed the above First Appeals before this Court questioning the correctness and legality of the judgment of the Reference Court passed in L.A.R. Nos. 88 of 1998 and 528 of 1997.
3. The impugned judgment is challenged by the State primarily on the ground that the compensation granted by the Reference Court is unduly excessive and, in fact, there is no evidence on record to support the finding recorded by the Court. It is also the contention raised on behalf of the State that the claimants had miserably failed to discharge their onus placed upon them for claiming any higher market value of the acquired land than the one awarded by the Collector. No instances which are comparable and have the same potential, were proved by the claimants. In order to substantiate their submission, it was vehemently argued on behalf of the State that Exhibit-19 could not form the basis for determining the fair market value of the land as it relates to a small piece and there should have been a deduction of at least 50 per cent from the reflected value. Exhibits-30 and 39 again could not be made the basis for determination of the market value as they related to dif
