Chindha Fakira Patil
(D) through L.Rs. Vs. The Special Land Acquisition Officer,
J U D G M E N T
G. S. Singhvi, J.
1.
These
appeals are directed against judgment dated 9.11.2006 of the Division Bench of
the Bombay High Court whereby the appeals preferred by the respondent under Section
54 of the Land Acquisition Act, 1894 (for short, `the Act') were allowed and
the amount of compensation determined by Civil Judge, Senior Division, Jalagaon,
(hereinafter described as, `the Reference Court') was substantially reduced.
2.
By
notification dated 14.3.1996 issued under Section 4 (1) of the Act, the
Government of Maharashtra initiated the proceedings for the acquisition of various
parcels of land including those belonging to the appellants situated in
villages Deoli Bhoras and Bilakhed, Taluka Chalisgaon, District Jalgaon for Minor
Irrigation Tank, Deoli Bhoras. The declaration under Section 6 was issued sometime
in April 1997. Special Land Acquisition Officer, Jalgaon (respondent) passed award
dated 31.3.1999 and fixed market value of the acquired land by dividing the
same into three groups. For land falling in Group I, i.e. Jirayat land, the respondent
fixed market value at Rs.68,000/- per hectare. For Group II and Group I lands
he fixed market value at the rate of Rs.58,000/- and Rs.54,000/- per hectare 3respectively.
For pot kharab land, market value was fixed at Rs.15,00/- per hectare.
3.
The
appellants accepted the compensation under protest and then filed applications under
Section 18 of the Act for determination of the compensation by the Court. On a reference
made by the Collector, the Reference Court examined the pleadings of the parties
and framed the following issues:
a. What is the market price
of the land on the date of notification u/Sec. 4 of L.A. Act?
b. Does the petitioner
prove that he accepted the amount of compensation under protest?
c. Does the petitioner prove
that the market price of land determined by the L.A.O. is inadequate?
d. Is the petitioner
entitled to enhance compensation?
e. What order?
4.
The
Reference Court then considered the evidence produced by the parties including sale
deed Exhibit 28 by which 92 ares Jirayat land comprised in Gat No. 97/1 was
sold at the rate of Rs.2,76,041/- per hectare, 7/12 extracts marked as Exhibits
13 to 27 and fixed market value of Jirayat land at the rate of Rs.3 lacs per
hectare. The Reference Court also referred to the statement of Arjun Sukdeo
Patil who deposed that there were wells in 4the acquired land and fixed market
value of such land at the rate of Rs.6 lacs per hectare by treating the same as
Bagayat land. The Reference Court then adverted to the testimony of Shri Ravindra
Ghanshyam Chaudhari, Agriculture and Horticulture Consultant and accepted the
valuation made by him in respect of the trees standing on different portions of
the acquired land. The Reference Court also held that for pot kharab, the land
owners are entitled to 50% of the compensation determined for Jirayat land.
5.
While
dealing with the appeals filed by the respondent, the High Court referred to
the award passed by the respondent, the evidence produced by the parties and
held that the Reference Court committed a serious error by recording a finding
that the acquired land included Bagayat land. The High Court refused to rely
upon Exhibit 28 by observing that there must be some special reasons for
payment of higher price by the purchaser because various other sale instances of
two villages indicated that the cost of land was between Rs.23,438/- and Rs.1 lac
per hectare. As regards the trees, the High Court discarded the report of the
valuer on the premise that the same had been submitted after the award was
passed by the respondent.
6.
Shri
Pallav Shishodia, learned senior counsel appearing for the appellants assailed the
impugned judgment mainly on the ground that the 5reasons assigned by the High
Court for discarding Exhibit 28 are not only irrelevant but are based on pure conjectures.
He emphasized that while determining the amount of compensation, the Reference
Court was entitled to take into consideration the sale instance which
represented highest value paid for similar land and the High Court committed an
error by basing its judgment on the average value of the sale instances
referred to in the award passed by the respondent.
In support of this
argument, Shri Shishodia relied upon the judgments of this Court in M.
Vijayalakshmamma Rao Bahadur v. Collector, (1969) 1 MLJ 45 (SC), State of Punjab
v. Hans Raj, (1994) 5 SCC 734 and Anjani Molu Dessai v. State of Goa and
another, (2010) 13 SCC 710. Learned senior counsel further argued that the
finding recorded by the Reference Court on the issues of the nature of land and
valuation of the trees was based on correct appreciation of the evidence
produced by the parties and the High Court was not at all justified in reducing
the amount of compensation by treating the entire land as Jirayat.
In the end, he
submitted that the appellants have already received the amount of enhanced compensation
and keeping in view the fact that they have virtually been made landless, this
Court may set aside the impugned judgment and restore the award passed by the
Reference Court.
7.
Shri
Sanjay Kharde, learned counsel appearing for the respondent supported the impugned
judgment and argued that the High Court rightly reduced the compensation
determined by the Reference Court by taking into consideration average of various
sale instances produced on behalf of the acquiring authority and in exercise of
power under Article 136 of the Constitution, this Court may not interfere with
the finding of fact recorded by the High Court that the entire acquired land
was Jirayat and no portion thereof was Bagayat.
8.
We
have considered the respective arguments and carefully perused the record. Admittedly,
the appellants had produced and proved Exhibit 28 vide which 90 ares of Jirayat
land of village Bilakhed was sold on 2.2.1995, i.e. prior to the acquisition in
question at the rate of Rs.2,76,041/- per hectare. The Reference Court applied
the rule of 10% annual increase in the prices of land and concluded that the
appellants would be entitled to market value at the rate of Rs.3 lacs for Jirayat
land. The Reference Court also referred to the statement of Arjun Sukdeo Patil
who was examined on behalf of the appellants, 7/12 extracts marked Exhibits 13
to 27 and held that they have been able to prove that parts of their land were
Bagayat and for such land they are entitled to compensation at the rate of Rs.6
lacs per hectare.
As regards valuation
of trees, the Reference Court referred to the testimony of Shri Ravindra
Ghanshyam Choudhari and observed: "So far as the valuation of trees are concerned,
the claimant have examined valuer Shri Ravindra Gahnshyam Chaudhari at Exh. 33.
He passed M. Sc. (Agri.) in the year 1978. He is working as Agri. &
Horticulture consultant since 1993. He has produced attested certified copy of
certificate at Exh. 34 and 35. It is in his evidence that on 16.5.1996 to 21st May
1996, he visited the acquired lands and identified with the help of 7/12 extract,
village Sarpanch and claimants.
The reports placed on
record at Exh. 36 to 41 respectively. He has given the details of number of trees,
present and future age, general condition, height, width, spread, annual fruit production
capacity. From the wholesale market and fuel value in details in the report,
and calculated the value on the basis of Miram's table laid down by the Agri. And
Horticulture Deptt. Govt. of Maharashtra.
Nothing much damaging
to the evidence of this valuer is disclosed in the cross-examination. Considering
all the factors and further considering the valuation of Shri Ravindra G. Chaudhari,
which is supported by the claimants evidence to who the market rates of fruits value
and other factors. I hold that the valuation made by the claimant's valuer is more
effective. Hence, considering these factors on record and assessing the
valuation made by the calimant's valuer. I fixed the market value of the respective
fruit trees as follows.
Serial.
Nos.
|
Gat
Nos.
|
Types
of Trees
|
Valuation
of trees @ 80% of valuation made by claimant's Valuer.
|
1.
|
87/B
|
7-Jujubee
7 x
7660
|
Rs.
53,620.00
|
2.
|
42/A/2
|
5-Jujubee
5x7075
|
Rs.
35,375.00
|
3.
|
9/2
|
10-Jujubee
10 x
7656
|
Rs.
76,560.00
|
|
01
Lime
|
|
Rs.
13,469.00
|
4.
|
151/1
|
21-Jujubee
21 x
6430
|
Rs.
1,35,030.00
|
|
|
07-Tambrine
7 x
6430
|
Rs.
1,06,897.00
|
|
|
03-Mango
3 x
35669
|
Rs.
77,007.00
|
5.
|
57
|
08-Jujubee
8 x
6615
|
Rs.
52,920.00
|
|
|
06-Custard
Apple
6 x
6615
|
Rs.
36,258.00
|
|
|
02
Mango
2 x
22612
|
Rs.
45, 224.00
|
|
61
|
184-Pomegranate
184 x
5584
|
Rs
10,27,456.00
|
|
|
60-
Pomegranate
60 x
4447
|
Rs.
2,66, 820.00
|
|
|
25-
Pomegranate
25 x
3310
|
Rs.
82,750.00
|
|
|
10-Jujubee
10x
5415
|
Rs.
54,150.00"
|
9.
The
Reference Court then briefly referred to the award of the respondent and held
that the classification made by him solely on the basis of the revenue
assessment was totally arbitrary and unjustified.
10.
The
High Court reversed the findings of the Reference Court on all the counts. The High
Court discarded Exhibit 28 by observing that there may be some special reasons
for which the purchaser may be willing to offer Rs.3 lacs per hectare for such land.
This is evident from the following observations made in the impugned judgment: "If
we take these details into account, it is evident that sale instance relied
upon by claimant, which shows market price @ Rs.3,00,000/- for jirayat land, is
not safe to rely upon. This is because, that being price offered by willing purchaser,
there may be some special reasons for which the purchaser was willing to offer Rs.3.00
lacs per hectare of jirayat land, when trend of the transactions shows that bagayat
lands were being sold @ Rs.1 lakh per hectare or so. In order to rely upon that
instance, it was incumbent upon the claimants to show what was special about
that jirayat land and not only that, but also to establish on record that acquired
lands also enjoy same speciality.
11.
In
our view, the approach adopted by the High Court was clearly erroneous. There is
no basis for the assumption that the purchaser of the land must have offered higher
price for special reasons. Exhibit 28 was proved by Shri Arjun Sukdeo Patil,
who had appeared as witness on behalf of the appellants. It was open to the counsel
for the respondent to cross-examine the witness and elicit the special reasons,
if any, for sale of land allegedly at a higher price. However, the fact of the
matter is that no such question was put to the witness.
As a matter of fact,
it is neither the pleaded case of the respondent nor it has been argued before
us that the sale deed Exhibit 28 had not been proved or that the price
mentioned therein was not the highest price paid for Jirayat land in the area. Therefore,
we have no hesitation to hold that the High Court was not right in interfering
with the fixation of market value by the Reference Court for Jirayat land at
the rate of Rs.3 lacs and for Bagayat land at the rate of Rs.6 lacs per
hectare. The mere fact that average sale price of the transactions relied upon
by the respondent was substantially less could not be made a ground for
discarding Exhibit 28. In M. Vijayalakshmamma Rao Bahadur v. Collector (supra),
this Court considered a question similar to the one raised in this appeal and
observed:
"After all when
the land is being compulsorily taken away from a person, he is entitled to say
that he should be given the highest value which similar land in the locality is
shown to have fetched in a bona fide transaction entered into between a willing
purchaser and a willing seller near about the time of the acquisition. It is
not disputed that the transaction represented by Ext. R-19 was a few months prior
to the notification under Section 4 that it was a bona fide transaction and that
it was entered into between a willing purchaser and a willing seller.
The land comprised in
the sale deed is grounds and was sold at `1961 per 11 ground. The land covered by
Ext. R-27 was also sold before the notification but after the land comprised in
Ext. R-19 was sold. It is true that this land was sold at `1096 per ground. This,
however, is apparently because of two circumstances. One is that betterment levy
at `500 per ground had to be paid by the vendee and the other that the land comprised
in it is very much more extensive, that is about 93 grounds or so. Whatever
that may be, it seems to us to be only fair that where sale deeds pertaining to
different transactions are relied on behalf of the Government, that representing
the highest value should be preferred to the rest unless there are strong
circumstances justifying a different course. In any case we see no reason why
an average of two sale deeds should have been taken in this case."In State
of Punjab v. Hans Raj (supra), this Court held as under:
"Having given
our anxious consideration to the respective contentions, we are of the
considered view that the learned Single Judge of the High Court committed a
grave error in working out average price paid under the sale transactions to
determine the market value of the acquired land on that basis. As the method of
averaging the prices fetched by sales of different lands of different kinds at
different times, for fixing the market value of the acquired land, if followed,
could bring about a figure of price which may not at all be regarded as the price
to be fetched by sale of acquired land.
One should not have,
ordinarily recourse to such method. It is well settled that genuine and bona
fide sale transactions in respect of the land under acquisition or in its
absence the bona fide sale transactions proximate to the point of acquisition of
the lands situated in the neighbourhood of the acquired lands possessing similar
value or utility taken place between a willing vendee and the willing vendor
which could be expected to reflect the true value, as agreed between reasonable
prudent persons 12 acting in the normal market conditions are the real basis to
determine the market value."
In Anjani Molu Dessai
v. State of Goa and another (supra), the Court again considered the same issue
and held: "Therefore, we are of the view that the averaging of the prices
under the two sale deeds was not justified. The sale deed dated 31-1-1990 ought
to have been excluded for the reasons stated above. That means compensation for
the acquired lands had to be fixed only with reference to the sale deed dated 30-8-1989
relied upon by the Land Acquisition Collector which will be `57.50 per square metre.
As the said market value has been fixed with reference to comparable bharad land
with fruit trees, the question of again separately awarding any compensation for
the trees situated in the acquired land does not arise.
12.
"12.
In view of the law laid down in the above noted three judgments, it must be held
that the High Court committed an error by refusing to rely upon Exhibit 28 on
the ground that the average sale price of the transactions relied upon by the
respondent was far less than the price for which land was sold vide Exhibit 28.
13.
The
High Court was also not right in upsetting the finding of the Reference Court
on the issue of nature of land. In his deposition, Arjun Sukdeo Patil categorically
stated that there were wells in the lands of the appellants and there were Jujubee,
Tambrine, Mango, Pomegranate trees. This was supported by the entries contained
in 7/12 extracts. The High Court discarded the evidence of the appellants by observing
that they had not cultivated sugarcane and wheat. When it was not in dispute
that there were wells in the acquired land, the mere fact that the appellants had
not cultivated sugarcane or wheat cannot lead to an inference that the land was
not irrigated and, in our view, there was no valid reason for the High Court to
interfere with the finding recorded by the Reference Court that parts of the lands
were Bagayat and for such land they were entitled to compensation @ Rs. 6 lacs
per hectare.
14.
The
High Court also committed error by rejecting the reports submitted by Shri
Ravindra Ghanshyam Choudhari, who was examined by the appellants. This witness
is a consultant in Agriculture and Horticulture. He personally visited the acquired
land and gave the details of the trees standing on different parts of the land,
their present and future age, condition, height, width, spread and annual fruit
production capacity. The valuation made by him was amply supported by the market
rates of fruits fixed by Agriculture and Horticulture Department of Government of
Maharashtra. In the cross-examination, the witness stood by reports Exhibits 36
to 41 given by him. This being the position, the High Court had no reason to overturn
the finding recorded by the Reference Court on the issue of existence of trees
on the acquired land and their valuation.
15.
Learned
counsel for the parties did not address any argument on the fixation of market
value of pot kharab land. Therefore, we do not consider it necessary to delve
into that issue.
16.
In
the result, the appeals are allowed, the impugned judgment is set aside and the
award passed by the Reference Court is restored. The parties are left to bear
their own costs.
.......................................J.
[G. S. Singhvi]
.......................................J.
[H. L. Dattu]
New
Delhi,
November
01, 2011
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