Full Text
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 644 OF 2019
Yashwant Changu Bhagat )
Aged – 70 Years )
Residing at Nandgaon, )
Taluka – Panvel, District – Raigad ) ….. Appellant
(Original Claimant)
(Through the Special Land Acquisition)
Officer, Metro Centre No.3, )
New Panvel, Taluka Panvel, )
District Raigad )
2. The District Collector )
Raigad-Alibag ) ….. Respondents
(Original Opponents)
Mr. Sachin S. Punde a/w. Ms.Deepa Punde for the Appellant.
Mr. A. R. Patil, Additional G.P. for the State – Respondent Nos. 1 and 2.
ORAL JUDGMENT
1) This First Appeal filed under Section 54 of the Land Acquisition Act, 1894, (for short ‘the said Act’) challenges the Judgment and Award dated 3 October, 2009 passed by the Joint Civil Judge, Senior Division, Panvel in Land Acquisition Reference No. 237 of 2007.
VINOD MAYEKAR KVM
2) I have heard learned advocate for the appellant and the Additional Government Pleader on behalf of the State.
3) In 1970, the Government of Maharashtra acquired large chunks of land in 96 villages of Raigad and Thane Districts for implementing ‘New Bombay Project’.
3.1) The appellants herein are the original claimants, who owned agricultural land bearing Survey No. 130, Hissa No. 1, admeasuring 01H 06R 00P (10,600 sq.mtrs) situated in Village Karanjade, Taluka Panvel, District Raigad which was also proposed to be acquired for setting up satellite tower of ‘New Bombay Project’. Notification under section 4 of the said Act was issued on 3 February, 1970 and thereafter declaration under Section 6 of the said Act was issued on 14 May, 1971. Subsequent thereto, an Award under Section 11 was declared on 17 September, 1986 thereby granting market value at Rs.0.25 paise and Rs.1.87 paise. The total compensation amount calculated was Rs.54,312.45 paise. On 16 October, 1986, the possession of subject land was handed over to the acquiring body.
3.2) Pursuant to an application made under Section 28-A of the said Act, by one Smt.Shardabai Ganesh Ojhe, an order dated 3 May, 1990 was passed in L.A.R. No. 325 of 1989, wherein for a land of KVM Village Karanjade, she was granted rate of Rs.15/- per sq.mtr. by the Special Land Acquisition Officer (for short S.L.A.O.). Immediately thereafter within the statutory period of three months, the present applicant (original claimant) filed an application under Section 28-A (1) of the said Act, seeking compensation at the rate of Rs.15/- per sq.mtr. After hearing the applicant as per the provisions of Section 28- A(2) of the said Act, the S.L.A.O. by its award dated 28 May, 2007 granted compensation for Varkhas land @ of Rs.0.75 paise and for Kharib land @ of Rs.2.37 paise, thereby granted total amount of Rs.75,923/- included additional redetermined compensation after deducting amount of Rs.54,312/- being an award amount already granted under Section 11 of the said Act.
3.3) As the applicant was dissatisfied with the rate granted by the S.L.A.O., he challenged the said award passed on 28 May, 2007 by filing a reference application under Section 28-A(3) of the said Act, thereby claiming the market value @ of Rs.30/- per sq.mtrs. before the Land Acquisition Officer who in turn forwarded the same to the Court of Civil Judge, Senior Division, Panvel, District Raigad. The said reference was numbered as L.A.R. No. 237 of 2007.
3.4) Before the Civil Judge, Senior Division, Panvel, District KVM Raigad in L.A.R.No. 237 of 2007, written statement was filed by the State dated 4 September, 2009 thereby denying the claim made by the original claimant. Subsequently, “Issues” were framed and the matter proceeded for leading evidence.
3.5) On behalf of the original claimant, the present appellant stepped into the witness box and led his evidence. He produced certified copies of the decisions passed in L.A.R. No.59 of 2005, L.A.R. No. 57 of 2005 and L.A.R.No. 135 of 2004 and the copies of the government letters. The said witness was cross examined by the State’s advocate. Thereafter, the claimant examined one more witness, who was a land valuer – Mr.Vikrant Vaidya. The said valuer produced on record his valuation report. So also produced map of a plan showing acquired land, which was duly exhibited. On behalf of the State, the said valuer was cross-examined by its advocate. Thereafter, Pursis was filed by the appellant closing his evidence. The State did not examine any witness and closed their evidence by filing Pursis. 3.[6] ) After the evidence was over, both the parties were heard by the Civil Judge, Senior Division, District Panvel and by its judgment and order dated 3 October, 2009, the Civil Judge, Senior Division KVM partly allowed the reference thereby granting: (a) Enhanced rate of Rs.18/- per sq.mtr. alongwith; (b) 12% additional component in the form of 12% interest as per Section 23-1(A) from the date of notification i.e. 3 February, 1970 till 17 September, 1986 i.e. roughly 16 years 7 months and 10 days, which came to around Rs.3,80,582.40 and;
(c) Further 30% solatium as per Section 23(2)
(d) Hence, total amount payable of
Rs.5,52,699.40 paise; (e) Plus interest at the rate of 9% p.a. on the excess sum of compensation from the date of possession for a period of one year and after the period of one year, further interest at the rate of 15% p.a. till payment, as per Section 28.
4) When oral submissions were made before me, Mr.Punde, learned advocate appearing for the appellant, has handed over in a tabular form the market value granted by the Supreme Court and this Court to the acquired lands in the villages nearby the village of the present proceedings. For ease of reference, the said table is reproduced hereinbelow:- KVM Sr. No. Village Market value Hon’ble Court Proceeding number and parties
1 Wadghar Rs.25/- Supreme Court of India Civil Appeal No. 5088- 5089/2013 – Ambaji Dharma Pardeshi V/s State of Maharashtra Decision dated 02/07/2013 2 Roadpali Rs. 25/- Supreme Court of India Civil Appeal No. 3590- 3591/2012 – Sabhia Mohammed Yusuf Abdul Hamid Mulla (Dead) by L.Rs. And others V/s. Special Land Acquisition Officer Decision dated 02/07/2012 3 Koli-Kopar Rs.25/- Bombay High First Appeal No. 1954 of 2005 – The State of Maharashtra V/s. Manohar Mukund Patil & Ors. Decision dated 22/09/2016 4 Taloja Rs.25/- Bombay High First Appeal No. 544 of 1990 – Chandar Krishna Gaikwad V/s State of Maharashtra - Decision dated 10/01/2001 5 Pendhar Rs.25/- Bombay High First Appeal No. 1074 of 1989 – The State of Maharashtra V/s Laxman Bhiva Patil – Decision dated 09/08/2004 6 Nawade Rs.25/- Bombay High First Appeal No. 423 of 1996 – State of Maharashtra V/s Chandrakant Bhiva Patil Decision dated 16/09/2004 7 Panvel & Kamothe Rs. 25/- Bombay High First Appeal No. 754 of 1986 – Nana Padu Hudar V/s The State of Maharashtra Decision dated 25 & 26/02/1993 KVM
4.1) From the above table, it can be seen that, the Supreme Court in two proceedings has granted rate of Rs.25/- per sq. mtr., for acquired lands of villages ‘Wadghar’ and ‘Roadpali’ being the proceedings of claimant - Mr.Ambaji Pardeshi and Ms.Sabhia Mohammed Yusuf respectively. The decisions were passed on 2 July, 2013 and 2 July, 2012, respectively.
5) Mr.Punde, harped more on the decision passed by the Supreme Court in case of Mr.Ambaji Dharma Pardeshi v/s. State of Maharashtra in Civil Appeal No. 5088-5089/2013 dated 2 July, 2013, which was pertaining to the land of village Wadghar and according to him, the village Wadghar and the land in the present proceedings being from the Village Karanjade, both the villages are adjacent to each other. Therefore, according to Mr.Punde, the judgment passed in the proceedings of Ambaji Dharma Pardeshi (supra) will straight away be applicable to the present proceedings.
5.1) He further cited in support of his argument, the judgment passed by this Court in the land pertaining to the village Koli-Kopar which was adjacent to other side of village Wadghar where this court in case the State of Maharashtra vs. Manohar Mukund Patil & Ors., granted rate of Rs.25/- per sq.mtr. by its decision passed on 22 KVM September, 2016 in First Appeal No. 1954 of 2005. I find substance in the submissions of Mr.Punde and I am of the view that the rate granted in the proceedings of Ambaji Dharma Pardeshi (supra) and in Manohar Mukund Patil (supra) are squarely applicable to the present proceedings.
6) He further stressed upon the order passed by this Court in the proceedings of claimant Mr.Nama Padu Hudar. The land in the said proceedings was pertaining to village Panvel. In the said judgment this Court has awarded rate as per the distance, being Rs.22/- to Rs. 25/- per sq. mtrs. He further submitted that before the Supreme Court could decide the rate of Rs.25/- per sq.mtrs. in case of Ambaji D. Pardeshi (supra) on 2 July, 2013, in an earlier judgment on 2 July, 2012, the Supreme Court in the judgment of Ms.Sabhia Mohammed Yusuf Abdul Hamid Mulla (Dead) by L.Rs. & Ors. v/s. Special Land Acquisition Officer in Civil Appeal No. 3590-3591/2012 dated 2 July, 2012 pertaining to the village Roadpali had granted similar rate i.e. Rs.25/- per sq.mtr. before one year, the judgment delivered by the Supreme Court in case of Ambaji D. Pardeshi (supra).
7) He fairly submitted that this Court in its various judgments, had granted at the rate of Rs.13/- per sq.mtrs. in the KVM proceedings of First Appeal No. 731 of 1991 in the judgment of the State of Maharashtra vs. Ismile Abdul Rehman Navadekar, which pertaining to the village Karanjade. He submitted that though these lands were pertaining to the village Karanjade, in the present proceedings, the lands are of the same village. However, this Court has to consider the judgment passed in case of Ambaji D.Pardeshi (supra), where the Supreme Court had granted rate at Rs.25/- per sq.mtr. There is a point in the argument of Mr.Punde to which I agree.
8) Coming back to the judgment in case of Ambaji Pardeshi (supra) passed by the Supreme Court, in the said judgment, the Supreme Court had an occasion to discuss about the advantage which village Karanjade had, compared to village Wadghar, of which the Supreme Court was deciding the rate. While dealing with the pleadings and evidence of the parties, Supreme Court considered the observations made by the Reference Court and more particularly para no.20 of the Reference Court. The said para (20) of the Reference Court, quoted by Supreme Court reads as under:-
20. Exh. 16 is a certified copy of judgment of LAR No.651 of 1987 of village Karanjade, wherein the compensation was granted at the rate of Rs.13-50 psm. Exh. 19 is a certified copy of judgment in LAR No.253 of 1989 concerning the land situate in village Karanjade bearing S.No.-64. No. 1D wherein the compensation at the rate of н KVM Rs.15/-psm. was awarded. Exh. 21 is a certified copy of judgment in LAR No. 192 of 1989 in respect of the land S.No.28 H.No.1 to 5/6 and S.No.32 H.No.2 of Karanjade wherein compensation was awarded at the rate of Rs.15/- psm. Exh.26 is a certified copy of judgment in LAR No.530 of 1987 of village Karanjade bearing S. NO. 126/5 wherein the compensation was awarded at the rate of Rs.15/psm.
8.1) The Supreme Court thereafter considered the judgment passed in the proceedings of Sabhia M. Yusuf (supra) which pertains to land of village Roadpali where the rate of Rs.25/- per sq.mtrs. was granted and the Supreme Court also considered para nos. 16, 17 and 22 to 25 of the said judgment. The Supreme Court quoted all those paras in its judgment. Those paras would be relevant in the present proceedings. Therefore, I am reproducing hereinbelow:- “16. We have considered the respective arguments and carefully perused the record. It is settled law that while fixing market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors:
(i) Existing geographical situation of the land.
(ii) Existing use of the land.
(iii) Already available advantages, like proximity to National or
(iv) Market value of other land situated in the same locality/village/area or adjacent or very near the acquired land.
17. In Viluben Jhalejar Contractor v. State of Gujarat (2005) 4 SCC 577, this Court laid down the following principles for determination of market value of the acquired land: “Section 23 of the Act specifies the matters required to be considered in determining the compensation; the principal among which is the determination of the market value of the KVM land on the date of the publication of the notification under subsection (1) of Section 4. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under: Positive factors Negative factors
(i) smallness of size (i) largeness of area
(ii) proximity to a road (ii) situation in the interior at a distance from the road
(iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth
(iv) nearness to developed area
(iv) lower level requiring the depressed portion to be filled up
(v) regular shape (v) remoteness from developed locality
(vi) level vis-à-vis land under acquisition
(vi) some special disadvantageous factors which would deter a purchaser
(vii) special value for an owner of an adjoining property to whom it may have some very special advantage Whereas a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price.”
22. In Land Acquisition Officer, Revenue Divisional Officer v. L. Kamalamma (supra), this Court held as under: “When a land is acquired which has the potentiality of being developed into an urban land, merely because some portion of it abuts the main road, higher rate of compensation should be paid while in respect of the lands on the interior side it should be at lower rate may not stand to reason because when sites are formed those abutting the main road may have its advantages as well as disadvantages. Many a discerning customer may prefer to stay in the interior and far away from the main road and may be willing to pay a reasonably higher price for that site. One cannot rely on the mere possibility so as to indulge in a meticulous exercise of classification of the land as was done by the Land Acquisition Officer when the entire land was acquired in one block and therefore classification of the same into different categories does not stand to reason.”
23. In these appeals, we find that while determining the amount of compensation at the rate of Rs.25/- per square meter, the Reference Court had taken notice of the fact that the acquired land was in the proximity of National Highway No.4, Panvel-Sion Highway and the construction of Thane Creek Bridge which brought various villages including village Roadpali (Kolhekhar) close to Bombay. The KVM Reference Court also noted that civic amenities were available to Panvel town prior to 1970 and industrial estates had been developed at Taloja and Panvel and concluded that the acquired land was available for non-agricultural use and the only obstruction was the absence of conversion. The High Court did not advert to the factors noted by the Reference Court and reduced the amount of compensation by mechanically applying the distance criteria, i.e., distance of the acquired land from Bombay-Pune Highway adopted in the earlier judgments. Therefore, the impugned judgment and order cannot be sustained.
24. Although, the appeals filed by the State Government and the landowner against the judgment of District Judge, Raigad in LAR No.172/86 were decided after six months of the impugned judgment, we find that compensation for the land situated at Village Ambetarkhar had been awarded at the rate of Rs.60/- per square meter primarily on the ground that in the earlier round of litigation, this Court had issued a direction to the Special Land Acquisition Officer to determine market value as on 1.1.1977.
25. In the light of the subsequent judgment, we may have remitted the case to the High Court for fresh adjudication of the appeals, but keeping in view the fact that a period of 42 years has elapsed, we do not consider it proper to adopt that course and feel that ends of justice will be adequately met by restoring the determination of compensation made by the Reference Court.”
8.2) Based on the said judgment passed in case of Ambaji D. Pardeshi (supra), the Supreme Court fixed the rate at the rate of Rs.25/- per sq.mtrs.
9) Mr.Punde, learned advocate also referred to two judgments, to buttress his submissions on his next leg of argument that, once Supreme Court has decided and granted Rs.25/- per sq.mtr. to lands of adjoining village, the same rate uniformly should be KVM granted to land of present proceedings since they are arising from same notification. He has referred to the judgment of Union of India vs. Harinder Pal Singh & Ors., (2005) 12 SCC 564 and also the judgment of Supreme Court in case of Narendra & Ors. vs. State of Uttar Pradesh & Ors., reported in (2017) 9 SCC 426. Paragraph nos. 16 and 17 of the judgment of Narendra (supra) reads as under:-
16. The High Court, in the process, also took aid of Section 28 of the Act. Thus, even those villagers whose land was acquired subsequently, are given compensation at the rate of Rs 297 per square yard. Depriving this rate to the appellants herein would be nothing but travesty of justice.
17. Simply because the appellants had paid court fee on the claim at the rate of Rs 115 per square yard could not be the reason to deny the compensation at a higher rate. This could be taken care of by directing the appellants to pay the difference in court fee after calculating the same at the rate of Rs.297 per square yard.
9.1) The submissions on behalf of State that though the Supreme Court and this Court has granted a rate of Rs.25/- per sq.mtr. for the land of adjacent villages, the same cannot be applied blindly, still the topography of the land and the value of the land on the date of issuance of notification under Section 4 of the said Act has to be considered. Just because someone else has got higher rate, the present claimant cannot be given benefit under Section 28A of the said Act. The applicant has not produced on record the evidence to claim enhanced rate of Rs.25/- per sq.mtr. One has also to consider KVM whether the subject land is in direct use for ‘New Bombay Project’. Evidence to that effect has not been produced before the S.L.A.O. or the Reference Court.
10) In my view, if we consider the present proceedings, the village Karanjade is undisputedly adjacent to the village Wadghar. The valuation report states that the village Karanjade is 400 mtrs away from Municipal limits of Panvel City. Though, in cross examination to a question posed, by the advocate appearing for the State, witness no.2 being the valuer, has answered that the Aerial distance and the actual rate distance between the acquired land and the Panvel Municipal limits would be different. However, according to me that will not make much difference. The submissions of the State lacks substance.
11) Supreme Court in case of Ambaji Pardeshi (supra) to the adjacent village, has granted Rs.25/- per sq.mtr. The findings recorded in the said judgment has been followed by the Single judge of this Court in case of The State of Maharashtra vs. Manohar Mukund Patil being First Appeal No. 1954 of 2005 comparatively to the distant village of Koli-Kopar and thereafter, to far of villages viz. Taloja, Pendhar, Nawade, including the Division Bench of this Court in land of KVM village Taloja, all have considered the enhanced rate of Rs.25/- per sq.mtrs.
11.1) It is also submitted before me, even in Lok Adalat for village Panvel and Kamothe, the rate of Rs.25/- per sq.mtrs. has been applied. Though the State is not bound by the rate of Rs.25/- if the same is allowed in Lok Adalat, as the argument of the State, according to me is correct that, it depends upon matter to matter and the size of the plot of land. Coming back to the present proceedings, the evidence led by the parties, so also the rate applied by the Supreme Court in the case of Ambaji Pardeshi (supra), the land of the present village being the adjacent to the village Wadghar, the compensation in the present proceedings in my opinion should also be granted the rate of Rs.25/- per sq.mtr.
12) Hence, the First Appeal filed by the claimant succeeds with the enhancement compensation granted at the rate of Rs.25/- per sq.mtrs. The claimant will also entitled to the statutory benefits including interest and the cost. Hence, the First Appeal stands allowed with following directions:-
(i) First Appeal No 644 of 2019 is partly allowed. The impugned judgment and award dated 3 KVM October, 2009 is modified. The total market value of the acquired land is fixed at Rs.25/- per sq.mtr. (inclusive of market value offered by the Special Land Acquisition Officer).
(ii) In addition, the claimant will be entitled to the statutory benefits under Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894.
(iii) The exercise of determining the compensation payable as per the modified award shall be carried out by the Reference Court within a period of three months from the date, on which the writ of this judgment is received by the said Court.
(iv) Excess amount shall be deposited by the
State Government within a period of three months from the date on compensation amount is determined by the Reference Court. [RAJESH S. PATIL, J.]