2009 Supreme(Bom) 1343

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE B.P. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE F.M. REIS
Executive Engineer (C), Maharashtra State Electricity Board, EHV Civil Construction Division & Another – Appellant
Versus
Uttamrao son of Bapurao Raut & Others - Respondent
First Appeal No.141 of 2002 with First Appeal No.240 of 2002
Decided on : 07-10-2009

Headnote:Land Acquisition Act, 1894 - Section 18 - Appeal - Against award enhancing compensation passed by Reference Court - Acquired land, agricultural land and a large track contended - Price of a small non-agricultural plot cannot be comparative sale price - Reference Court rightly rated acquired land on basis of non-agricultural land - Out of total area 32,900 sq. metrs, only 18,606 sq. mtrs can be used for residential purpose - Deduction of 45% can be effected towards its development - Area acquired being large, a further deduction of 15% would be appropriate - Evidence shows sale of similar land @ Rs. 21 per sq. ft. - Effecting deductions from rate of Rs. 21/- per sq. ft. compensation price comes at Rs. 8/- per sq. ft. - Award modified to this extent - Appeal allowed. - In the present case, the claimant has adduced evidence to establish that the land, which was acquired, was a non-agricultural land. The claimant has also produced the sale-deed of a developed plot whereby the plot was sik at the rate of Rs.21/- per sq. ft. The Land Acquisition Officer in his cross-examination has admitted that while determining the price, he had not taken into consideration the market price of the land. He has further stated that he had not taken into consideration the status of the land as non-agricultural one. He has admitted that three sale transactions in respect of the same land took place and such transactions were provided to him. He has further admitted that he did not consider the said documents while determining the price as he did not find potentiality of the land in question as non-agricultural one. He has further admitted that non-agricultural permission is given after considering all the possibilities, namely availability of water, locality etc. He also admitted that the land in question was on both sides Digras-Akola road. He has admitted that land bearing Survey Nos. 6 and 10 is adjoining the land in question and the same is for industrial purposes.

       PW 1, who is the claimant, has also deposed that after obtaining the non-agricultural permission, he had started developing the said property. He has further stated that the Land Acquisition Officer had not taken into consideration the market value of the land and the facilities available to the land while determining the amount of compensation as schools, colleges and other amenities were available in the land acquired. This admission of the Land Acquisition Officer coupled with the evidence adduced by the claimant establishes that the claimant has been able to show that the valuation done by the Land Acquisition Officer was inadequate and as such the onus shifted on the Acquiring Body and the State Government, to adduce sufficient evidence to sustain the award passed by the Land Acquisition Officer. However, the acquiring body and the State Government, completely failed to discharge this burden and had been unable to adduce any evidence at all to support the claim of sufficiency of the amount awarded by the Land Acquisition Officer. As such considering the material on record, we find that the claimant is entitled for enhancement of compensation. We, therefore, find that the reference Court was justified in coming to the conclusion that the claimant is entitled for enhancement of compensation for the land acquired.

       Dealing with the amount to be awarded for the land acquired we find that considering the judgments of the Apex Court necessary deductions on account of developments will have to be made for arriving at a fair and just market value of the land acquired. The comparable saledeed to be considered in the circumstances is the one dated 23rd February, 1994 which is at Exh. 43, relied upon by the Reference Court, whereby a developed plot of land was sold at the rate of Rs. 21/- per sq. ft. For the purpose of determining the amount to be deducted for development, we find that in the non agricultural permission, out of the total area of the land of claimant admeasuring 32,900 sq. mts., the plotable area available for residential plots was 18,606.74 sq. mtrs. area provided for open space is 3316.25 sq. meters and area provided for roads is 10,977.01 sq. mtrs. As such, out of the total area of 32,900 sq. mtrs. owned by the claimant, only an area of 18,606,74 sq. meters was available for residential plots. Hence, area to be reserved for open spaces and roads works out to about 45 per cent of the total area of land with the claimant. In view of this 45 per cent would have to be deducted from the said amount for the area of open space and roads for ascertaining the market value. On perusal of the conditions imposed for grant of non-agricultural permission, we find that a plot would have to be reserved for public/primary school which had to be handed over to Zilla Parishad, Yavatmal, free of price. So also the open space would be vested in the local authorities. There are also conditions that the roads to be laid would be used for access to adjoining lands. On account of such conditions, a further deduction of 10% would have to be made from the said amount. Apart from that, the land acquired is more than 3 hectors and considering the largeness of the property a further deduction of 5% would have to be made from the said amount, for determining the compensation as on the date of Section 4 notification. Considering the said factors the value of the land as on the date of Section 4 notification, after deducting 60% towards development charges works out to Rs. 8/- per sq. ft. which is equivalent to Rs. 86/- per sq. meter. As such the market value of the land determined by the Reference Court at the rate of Rs. 10/- per sq. ft. will have to be reduced to Rs. 8/- per sq. ft. in view of what is stated herein above.

       The Reference Court has confined payment of compensation to the claimant, only to an area of 18,606.74 sq. meters. The Apex Court in its judgment delivered case of Ratan Lal Gupta and others v. Union of India (cited supra) and relied upon by learned counsel appearing for claimant held that after deducting development charges, the Court is not justified to award compensation only for the area which can be used for building purposes.

       In the present case the amount, which has been determined, is after deductions to wards development charges as well as the expenses and time consumed for the purpose of development. As such the claimant is entitled for the whole area of the land which would be suitable for the purpose of development. The award of Land Acquisition Officer shows taht the acquired area of the claimant admeasures 2.87 HR and 0.34 are for Pot kharab Land. The lcaomant is not entitled for any enhancement of compensatioin for the Pot Kharab Land, as such land is law lying and has no value for the purpose of develpment nor has the claimant brought any evidence on record to justify any enhancement of compensation for such Pot Kharab Land. Consequently, the claimant is entitled for a compesnation at the rare of Rs. 8/- per sq. fit, for an area of 2.87 HR after deducting development expenses of Rs. 5,00,000-00.