2011 Supreme(Bom) 1169

2011(6) ALL MR 850
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B. P. DHARMADHIKARI & A. P. BHANGALE, JJ.
Late Narayanlal Bansilal & Ors.
Vs.
The State of Maharashtra
First Appeal 142 of 2000
With First Appeal 53 of 2001
With Civil Application (F) No.2282 of 2011
Decided on : 28th September, 2011.

Headnote:Land Acquisition Act, 1894 - Sections 4 and 23-Acquisition of land-Claim of compensation-Compensation payable only from date of taking possession after Notification under Section 4 of Act-Possession earlier under provisions of Rent Act-Claim to be made either for rent for said period or mesne profits for wrongful dispossession -It cannot form subject-matter of adjudication by LAO under Scheme of Land Acquisition Act, 1894.-In present facts, admittedly the possession was already with the office of the Commissioner and that possession was taken under CP and Berar House Rent Control Orders, as premises were allotted to said office by Rent Controller. It is no doubt true that subsequently said allotment is set aside by this Court, but that is after 6.8.1985. In the meanwhile, notification under Section 4 was published on 19.2.1984 and possession thereafter was taken by invoking the urgency clause under Section 17 of the Land Acquisition Act on 6.8.1985. It appears that second bungalow on plot 1 was in possession of some third person and State took its possession from him. The Trial Court therefore, has correctly granted 12% component under Section 23(1-A) of the Act, from the date of Section 4 notification till taking of possession i.e. 6.8.1985. Possession delivered earlier on 1/1/1981 was under provisions of CP and Berar House Rent Control Order, 1949 and therefore, as a tenant that possession was not taken in pursuance of any decision to acquire the said property. In this situation, claim by landowners has to be either for rent for said period from a tenant or then for mesne profits for wrongful dispossession. It cannot form subject-matter of adjudication by Land Acquisition Officer under the scheme of Land Acquisition Act. In all precedents looked into above the taking of possession could have been related to Act and person taking possession were not having any other character like that of tenant. The judgment looked into above, clearly show that entitlement to such amount can be only when possession is taken by initiation of land acquisition proceedings i.e. after Section 4 notification.

       Land Acquisition Act, 1894 - Section 18-Reference-Enhancement of compensation-Valuation of structures by expert-Report prepared only on basis of assumptions which expert claims as supported by his experience- Relevant basic data not produced by landowners and Expert-Age of construction accepted as year of purchase of land-No evidence of timely or annual repairs though buildings, 54 years old -Total life of building taken to be 85 years-Sinking fund method for depreciation adopted-Expert’s report and evidence cannot be permitted to be used for purpose of determination of valuation. -The report, therefore, appears to be prepared only on the basis of the assumptions which the expert claims as supported by his experience, however, law does not permit use of said report for the purpose of determination of valuation. Landowners and said expert Shri Gandhi, ought to have produced relevant basic data, so as to enable the trial Court and thereafter, this Court to understand the nature of exercise undertaken by him and to verify it. Find that for reasons recorded by it to reject the report of Shri Kale, the trial Court also ought to have rejected the report of Shri Gandhi.

       Here, Shri Gandhi does not disclose search made by him to find out age of construction and he remains satisfied with accepting year of purchase as year of construction. He has not given any data to show the contemporary rates of construction then prevalent in that area. He does not find it necessary to refer to CSR rates or any material gathered by him for arriving at his rates. Thus he refuses to supply anything to enable State to cross check his claim or to Court to evaluate it. In ultimate analysis, one has to only accept his word or his experience to support that word. He includes structures without plinth and also values first floor at wrong rates. Depreciation rate applied by him is also not sustainable in the light of above verdict of Hon’ble Apex Court. Court finds that initial burden to show that valuation of structures by LAO is incorrect has itself not been discharged by landowners. By pointing out cross-examination of Shri Kale, effort was made to show that he could not and did not choose to substantiate exercise undertaken therein. It is not sufficient to rebut the presumption attached to award under Section 12 of Act. Moreover that also does not mean that landowners automatically become entitled to something more towards costs of construction or as compensation for structures. Appreciation of evidence and approach of Court in such matters can be gathered from judgment in case of P. Ram Reddy and others v. Land Acquisition Officer, Hyderabad Development Authority (supra). Hon’ble Apex Court has held that in land acquisition references before Civil Courts, when witnesses give oral evidence in support of the claims of claimants for higher compensation the ineffective cross-examination of such witnesses, is not an uncommon feature if regard is had to the manner in which claims for enhanced compensation in land acquisition cases are defended in Courts on behalf of the State. It is observed that if the Courts were to accept such statements of witnesses as true merely because they are not subjected to cross-examination or effective cross-examination or because evidence in rebuttal thereof has not been adduced, it would amount to doling out public money to the claimants far in excess of their legitimate entitlement for just compensation payable for their lands. If such situation is prevented by Courts dealing with claims for compensation by testing the statements of witnesses or claimants on the basis of probabilities, the Courts will have performed the duty justly expected of them. Hence, no Court which tests the oral evidence of the claimants on the touch-stone of probabilities calling into aid, its experience of life, men and matters and find such evidence to be untrustworthy, the same cannot be found fault with.

       Land Acquisition Act, 1894 - Section 23-Acquisition of land-Award of compensation-Land in excess than recorded in property land- Title of claimants to such excess not shown by any material on record-Claimants not entitled to claim compensation for excess land.-Landowners have not shown their title to alleged excess land lying on spot and have also not taken pains to plead or prove any other interest or even legal possession. There is no effort even to seek compensation for any such or other interest. The report of DILR i.e. Court Com- missioner does not show title of landowners to this excess land. It is apparent that when the property card did not contain entire area lying on spot, landowners ought to have brought on record their title to it by producing sale deed by which they purchased plot No. 1 in 1930. The settled possession or any right flowing therefrom are not the facets which even find mention. In absence of such an effort, it is obvious that contention that there is only mathematical error and even plan prepared by Mr. Watkar for department shows area in excess of what is recorded in property card does not require more consideration. The Trial Court has erroneously found the acquired area to be 59,870 Sq. Mtrs. or 6,44,440/- sq. feet. There is no material on record to demonstrate title of landowners to more than 54,168.86 sq. mtrs of area. Hence, they can claim compensation only for 54,168.86 sq. mtrs. of land. Point No. 1 above is answered accordingly.

       Land Acquisition Act, 1894 - Section 23-Acquisition of land-Compensation-Market value-Determination of-Market value to be determined as on date of Notification under Section 4 of Land Acquisition Act-Price rise or escalation thereafter totally irrelevant in hypothetical plotting method. -When law requires market value to be worked out on Section 4 notification date, the layout is presumed to be complete in all respect on said day and price rise or escalation thereafter is totally irrelevant in hypothetical plotting method. His attempt to set of deferral value against future escalation is therefore erroneous.

       Land Acquisition Act, 1894 - Section 23-Claim of compensation-Determination of compensation - Kuchha road-Cannot be given more importance than an internal road in hypothetical lay out of housing colony- Trial Court rightly recognised it as second belt.-Mini by-pass road is National Highway and Chilamshah Wali Road, though a public road, was not a tar road but a kuchha road then. It therefore was at rear of the layout but with potential to come on public road if there was plan to construct a pucca tar road in its place in near future. Kuchha road can not be given more importance that in internal road in hypothetical layout. Because of this possibility only, Trial Court has recognized it is second belt.

       LAND ACQUISITION ACT, 1894 - Section 23 - Determination of compensation. Failure of landowners to substantiate their demand for enhancement of compensation for structures on acquired land, disentitled them to claim additional compensation for such structures.

       LAND ACQUISITION ACT, 1894 - Section 23 - Determination of compensation - For determining compensation for acquired land, "kuchha road", cannot be given more importance than an "internal road" in hypothetical layout.

       LAND ACQUISITION ACT, 1894 - Section 23 - Determination of compensation. - Owners of land, claiming compensation for excess area, required to brought on record their title to alleged excess land lying on spot by producing sale deed by which they purchased plot.

       LAND ACQUISITION ACT, 1894 - Section 23 - Determination of market value - Since market value of acquired land is to be worked out on date of Notification issued under Section 4 of Act hence price- rise or escalation thereafter is irrelevant in hypothetical plotting method.

       LAND ACQUISITION ACT, 1894 - Section 23 - Determination of valuation - Report of Expert, in respect of valuation of structure prepared only on basis of assumptions, cannot be taken into consideration for purpose of determination of valuation of acquired land.

       Even it his experience is to be looked into, he has not pointed out its use while preparing report at Exh.195. The report has obviously been obtained by the landowners for using in Court matters and Shri Gandhi was aware of its purpose. It cannot be forgotten that he had appeared before land acquisition officer, when that officer had undertaken efforts to find out market value of the acquired property. He has not given the rates of bricks or wood prevailing in 1984, rate of cement or steel then prevailing and even labour charges are not mentioned. He has not pointed out regular maintenance. It is, therefore, obvious that in absence of this relevant material, it is not possible to find out correctness or otherwise of his claim in Exh. 195 in this regard. An expert like him has to describe the property in requisite details and thereafter mention the prevailing market position also, so as to enable the Court or the authority to ascertain the correctness of his stand by appreciating his line of application of mind.

       Here, though CSR rates were made available to one witness of State Government during his cross-examination and effort has been made to discard him, Landowners have not brought that rate on record and Shri Gandhi, has not pointed out that CSR also provided rates for same or similar type of construction. On the contrary, in paragraph No. 26, this witness has stated that he has given positive weight age of 35% in respect of building No. 1. During arguments, it was stated that the CSR rates consider cement and iron at controlled rate and not at open market rate. However, this fact and its use it also not apparent in report at Exh.195. The report, therefore, appeals to be prepared only on the basis of the assumptions which the expert claims as supported by his experience, however, law does not permit use of said report for the purpose of determination of valuation. Landowners and said expert Shri Gandhi, ought to have produced relevant basic data, so as to enable the trial Court and thereafter, this Court to understand the nature of exercise undertaken by him and to verify it.

       LAND ACQUISITION ACT, 1894 - Section 23 - Entitlement to compensation. Owners of land, entitled to compensation for acquired land only when possession of land is taken after Section 4, Notification.