AVADABAI B KENDALE & ORS v. THE STATE OF MAHARASHTRA & ORS

Judgment

#3. Smt Avadabai Bhagwan Kendale, Age 41, Occupation Housewife Rahul Bhagwan Kendale, Age 22, Occupation Business. Sharad Bhagwan Kendale, Age 20 years, Occupation Business, R/at 412, North Sadar Bazar, Lashkar, Satyanam Chowk, Solapur 413 006. versus The State of Maharashtra The Special Land Acquisition Officer No. 5, Collector’s Compound, Solapur 413 001. The Commandant, State Reserve Police Force Group No. 10, Soregaon, Solapur. 3A. Parshuram Bhiva Kendale 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS Age Adult, Occupation Service.

#4. Tuljaram Bhiva Kendale, Age Adult, Occupation Service, died through his legal representatives 4A. Chandrakala Tuljaram Kendale, Age 40 years, Occupation Household 4B. Santosh Tuljaram Kendale, Age 25, Occupation Service. 4C. Ankush Tuljaram Kendale, Age 23, Occupation Service. 4D. Meena Santosh Shinde, Age 21, Occupation Household. 4E. Mangesh Tuljaram Kendale, Age 19 years, Occupation Service, All R/o House no. 32 & 33, Kate Manewali Road, Chincha Pada Road, Darshan Apartment, Kalyan (East), District Thane.

#5. Suryakant Namdev Kendale, Age Major, Occupation Business.

#6. Malanbai Namdev Kendale Age 70, Occupation Housework

#8. Sharanabai Shivling Kendale, Age 65, Occupation Housework Shailendra Shivling Kendale, Age 30, Occupation Worker, Opponents Nos. 3A to 8 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS R/o. 412, North Sadar Bazar, Solapur.

#9. Digambar Shivling Kendale, Age Adult, Occupation R/at 412, North Sadar Bazar, Solapur 413 006. 9A Laxman Digambar Kendale, Age 45, Occupation Business, R/o 412, North Sadar Bazar, Lashkar, Solapur. 9B Jaya Subhash Thorat, Age 44 years, Occupation Household, R/o. Dombivali, Thane. 9C Sushma Raju Dolare, Age 42 years, Occupation Household R/o Kumta Naka, Solapur. 9D Jyoti Vinod Kendale, Age 22, Occupation Household 9E Roshani Vinod Kendale, Age 22 years, Occupation Household Both R/o. Dombivali, Thane. 10 Manohar Papayya Ige, Age 38 years, Occupation Daji Peth, Solapur 413 005. 11

Shriniwas Kanaklingam Kompelli, Age 31, Occupation: R/o. New Pachha Peth, Ashok Chowk, Solapur 413 006 died through legal representatives 11A Laxmi Shriniwas Kompelli, Age 33 years, Occupation Household. 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS 11B Ashwini Shrinivas Kompelli, Age 15 years, Occupation Education. 11C Rakesh Shriniwas Kompelli, Age 10 years, Occupation Household 11D Shrikant Shriniwas Kompelli, Age 12 years, Occupation Education, All R/o. House No. 34/23, New Pacha Peth, Ashok Chowk, Solapur. Opponent Nos. 11B to 11D are minor through their guardian Opponent No. 11A – mother. Respondents (Original Opponents) … AND FIRST APPEAL NO. 135 OF 2014 WITH CIVIL APPLICATION NO. 491 OF 2019

#1. Siddhappa Aliad Sidram Dhondappa Kamshetti, Solapur, Since deceased, through his representatives 1A. Kasturbai Siddhappa Alias Sidram kamshetti, Age 55, Occupation Household. 1B. Chanawwa Baburao Bidwe, Age 35 years, Occupation Household. 1C. Dhondappa Siddhappa Alias Sidram Kamshetti, Age 32 years, Occupation Business 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS 1D. Shivshankar Siddhappa Alias Sidram Kamshetti, Age 30 years, Occupation Business 1E. Sukeshami Subhash Udand, Age 28 years, Occupation Household. 1F. Anil Siddhappa Alias Sidram Kamshetti, Age 22 years, Occupation Business, All R/o. 290-295, Shankar Nagar, Opposite Shivshahi, Majarewadi, Solapur.

#2. Mallasha Alias Mallikarjun Dhondappa Kamshetti, Age Major, Occupation Business, R/o. C/o. Sidhappa D Kamshetti, Majarewadi, North Solapur, Solapur. The Govindraj Chamak Va Soot Doubiling Utpadak Sahakari Sanstha Maryadit, New Pachha Peth, Solapur through its Chairman Mr Narendra G Dara versus The State of Maharashtra The Special Land Acquisition Officer No. 5, Collector’s Compound, Solapur 413 001.

#2. Appellants (Orig. Claimants) ...

#3. The Commandant, State … Respondents 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS Reserve Police Force Group No. 10, Soregaon, Solapur. (Original Opponents) APPEARANCES FOR THE APPELLANTS Dr Ramdas P Sabban. FOR RESPONDENTS NOS. 1 TO 3 Mr Ashutosh Kumbhakoni, Advocate General, with YY Dabke, AGP. CORAM : G.S. Patel, J. RESERVED ON : 24th April 2023 PRONOUNCED ON : 20th October 2023 JUDGMENT:

#1. This common judgment will dispose of both First Appeals. I have heard Mr Kumbhakoni, learned Senior Advocate, then Advocate General for the Respondent-State, Dr Sabban for the Appellant in both matters at some length. With their assistance I have considered the material on record and gone through the authorities cited.

#2. For the reasons that follow, I am not persuaded that the orders under Appeal require any interference at all. I have dismissed both First Appeals.

#3. Both Appeals are under Section 54 of the Land Acquisition Act 1894 (“LA Act”). The Appellants are the original Claimants in References filed before the Joint Civil Judge Senior Division, Solapur. Both References were rejected, leading to the filing of these Appeals. In First Appeal No. 71 of 2014, the impugned order of the 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS Joint Civil Judge Senior Division is dated 25th October 2013 in LAR No. 12 of 2004. In First Appeal No. 135 of 2014, the impugned order of the Joint Civil Judge Senior Division is dated 11th November 2013 in LAR No. 22 of 1999. FACTS IN FIRST APPEAL NO. 71 OF 2014

#4. In First Appeal No 71 of 2014, the Reference Petition under Section 18 of the LA Act seeking enhancement of compensation was numbered as LAR No. 12 of 2004.1 Written Statements were tendered by the Respondents.2 The Claimants led evidence and were cross-examined.3 The Respondents were also cross-examined briefly.4 At this stage, it is only necessary to note that the Collector made his Award on 29th February 2000.

#5. The Reference before the Joint Civil Judge Senior Division was under Section 18 of the LA Act. The Applicants sought enhancement of compensation. The land is situated at House No. 8/2, New Gat No. 14/1, Old Gat No. 21/1 of Village Soregaon, District Solapur. The land admeasures 7.32 Hectares, about 7,320 sq mtrs. According to the Claimants the land was acquired in the year 1976–1977 for the State Reserve Police Force (“SRPF”). The Claimant says that a notice under Section 4 was issued on 20th October 1977 and possession was taken on 12th December 1978, On 3rd March 1979, the Government declared this a surplus land under 1 2 3 4 Paper book, pp. 43 to 56 of FA 71 of 2014. Paper book. Pp. 57 to 61. Paper book, pp. 62 to 76. Paper book, pp, 77 to 79. 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS Section 8(4) of the Urban Land Ceiling and Regulation Act (“ULC Act”). An area of 67,273 sq mtrs was withdrawn from the Land Acquisition proceedings. An area of 5,900 sq mtrs remained acquired under the LA Act. The balance area of 5,900 sq mtrs was later acquired. We are not concerned with that in these proceedings. The remaining land vested with the Government but under the ULC Act. The Applicants challenged the ULC proceedings in a Writ Petition before this Court and that came to be allowed releasing the land from acquisition under the ULC Act. There were in fact contempt proceedings and ultimately this tract of land of 67,273 sq mtrs came under a fresh acquisition proceeding under the LA Act. The Government acquired the land. This resulted in an Award of 17th August 2000. The compensation awarded was Rs. 17,72,560/-. The Applicants in the Land Acquisition Reference said that this compensation was wrongly fixed by the Collector. By the impugned order dated 25th October 2013, the Jt Civil Judge, Senior Division, Solapur, rejected the Reference. Hence this First Appeal.

#6. Shortly stated, the Appellants claim that compensation should be awarded at Rs. 1,000/- per sq mtr. There is also a claim of interest from the date of the first acquisition in 1977–1978. Before the Civil Judge Senior Division, Written Statements were filed by the State Government and the Special Land Acquisition Officer. In addition, the State Reserve Police Force, Opponent No. 3, filed a Written Statement through its Commandant. All these Opponents defended the compensation awarded.

#7. Only two significant issues were framed by the Civil Judge Senior Division. The first was whether the compensation awarded 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS was proved to be inadequate and second whether the Applicants prove that they were entitled to additional compensation in the amount of Rs. 2 crores. Both issues were answered in the negative. FACTS IN FIRST APPEAL NO. 135 OF 2014

#8. The dates as to possession and the proceedings under the LA Act are broadly the same. The area acquired, however, was 50,900 sq mtrs. The Award is dated 2nd January 1999 and is in the amount of Rs. 13,05,212/-. Again, the claim is for compensation at the rate of Rs. 1,000/- per sq mtr. There was an additional issue cast on solatium and interest in this Reference. All issues were answered in the negative. BACKGROUND CHRONOLOGY

#9. Some of these dates will be common to both matters. The Urban Land (Ceiling and Regulation) Act, 1976 (“ULC Act”) came into force in Maharashtra on 17th February 1976. The Appellants in FA 71 of 2014 originally held 73,000 sq mtrs. Of this, 67,273 sq mtrs was found to be in excess of the permissible holding under the ULC Act. It thus became liable to acquisition under the ULC Act. This is an important distinction because it tells us that the land was not originally targeted for acquisition under the LA Act at all.

#10. A Notification under Section 4 of the LA Act was issued in respect of 7.32 Hectares (73,200 sq mtrs) of land on 20th October 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS

#1977. The land was proposed to be acquired for SRPF. A Section 6 Notification under the LA Act followed on 3rd November 1977.

#11. On 3rd March 1979, there was an order issued under Section 8(4) of the ULC Act. This declared the holding of the Applicant, to the extent of 67,273 sq mtrs, to be in excess of the permission ceiling limits under the ULC Act. The remaining portion of 5,900 sq mtrs was held to be retention land available to the Appellants. Consequently, under Section 48 of the LA Act, the acquisition proceedings in respect of only the retention portion of 5,900 sq mtrs continue and the LA Act acquisition proceedings initiated in respect of 67,273 under the LA Act were dropped.

#12. Thus, the land declared to be in excess of the ceiling limits, 67,273 sq mtrs, by virtue of the ULC Act vested in the State Government as of 15th October 1981. Possession of this land of 67,273 sq mtrs and its vesting in the State Government for land acquisition purposes was not under the LA Act at all but under the ULC Act. This makes a significant difference to the question of the starting point of interest even assuming that the Appellants are entitled to succeed. On 8th December 1982, the Special Land Acquisition Officer passed an Award under Section 11 in respect of 5,900 sq mtrs, i.e., the retainable portion under the ULC Act. The Appellants filed Writ Petition No. 5965 of 1995 challenging the ULC proceedings and the vesting of this land in the State Government. On 1st October 1998, the Writ Petition was allowed and the ULC Authorities were directed to take a decision in terms of a Government Resolution on 1st October 1997. It is only thereafter on 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS 9th March 1999 that a fresh Notification was issued under Section 4 of the LA Act in respect of the land admeasuring 67,273 sq mtrs.

#13. It seems that the Appellant filed Contempt Petition No. 93 of 1993 saying that the Government had not complied with the order passed in Writ Petition. The Contempt Petition was admitted on 10th March 1999. On 1st April 1999, a Notification under Section 4 was published in the official Gazette. Notice of the Section 4 Notification was pasted on site on 5th June 1999. According to Mr Kumbhakoni, this is the date when notional possession of the land can be said to have been taken under the Land Acquisition Act. It is his submission that this is the only relevant date when looking at the date of possession. No earlier date can be considered.

#14. A Notification under Section 6 of the LA Act followed on 2nd December 1999. On 4th February 2000, this Court passed an order in the Appellants’ Contempt Petition directing the State Government to pass an award within six months in regard to the acquisition proceedings in respect of 67.273 Hectares of land. Ultimately, on 20th February 2000, the Collector made an Award under Section 11 warranting amount of Rs.17,72,560/- as compensation for the 67.273 Hectares of land. A notice under Section 12(2) of the LA Act was issued on 29th July 2000. On 29th November 2004, the Appellants filed the LA Reference No. 12 of 2004 in the Court of the learned Joint Civil Judge Senior Division, Solapur. This resulted in the impugned decision of 25th October 2013, and this in turn led to the filing of the present First Appeal. 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS

#15. In FA 135 of 2014, the land in question is Survey No 8/1, Gat No 20 of Village Soregaon, District Solapur. The area was 57,706 sq mts, originally. The remaining facts are broadly similar, and not much will turn on those. The award was of 2nd January 1999 in the amount of Rs 13,05,212 for an area of Rs 2,794 sq mts (the remaining having vested in the Government under the ULC Act). Here, the reference was Land Acquisition Reference No 22 of 1999. It failed by an order 11th November 2013 passed by the Jt Civil Judge, Senior Division, Solapur, and against which this First Appeal is filed. QUESTIONS FOR DETERMINATION

#16. As the following discussion shows, there is nothing in these First Appeals that demands a re-evaluation of the evidence on record. It is almost entirely non-controversial. The only issue is about the applicable law. There is only one sale deed for a relatively larger plot of land that needs to be considered. There is no controversy before me about the quality of evidence, the cross- examination, the admissibility or proof of documents and so forth. Neither side has advanced submissions in this regard. The entire discussion has been only on a proper application of law and a correct approach to one sale deed.

#17. Consequently, the points for determination in the First Appeals are: (a) Whether the Appellants prove that they are entitled to a higher rate of compensation, and, if so, what rate? 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS (b) If the answer to the first question is in the affirmative, (i) What is the rate or amount of compensation to which the Appellants are entitled? (ii) Do the Appellants prove that they are entitled to interest, and, if so, at what rate and from what date? (iii) Do the Appellants prove that they are entitled to solatium?

#18. If the answer to the first issue is in the negative, the remaining will not survive. I have answered the first issue in the negative.

#19. Given the manner in which arguments were structured, I will take all issues together but, as I noted, it is the first issue that is dispositive. RIVAL SUBMISSIONS & FINDINGS

#20. Dr Sabban’s submissions are essentially founded on what he calls the principle of parity. He seeks to draw support from 16 sale instances and nine awards by the Collector, saying that these are ‘comparable’ instances produced in evidence.5 These show, according to him, that the rate of compensation ranged from Rs 276 per sq mtr to Rs 1144 per sq mtr. Even on a simple ‘averaging’ principle, the rate awarded ought to have been Rs 611.37 sq mts, or approximately Rs 611 per sq mts. What has been awarded is far less, no more than Rs 16.64 per sq mt. According to him, the Paper book, pages 11, 73–74 and 80; and submissions noted in the 5 impugned judgment at page 39. 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS Government did not show competing sales instances. Instead, it relied on an Award in case no SR/MHADA/9.6 This was in relation to an area of 19,465.30 sq mts, also near Solapur. The award took into account 11 sales instances. Dr Sabban contends that the rtes here range from Rs 594 per sq mt to Rs 1165 per sq mt, averaging Rs 712 per sq mt. Thus, from either perspective, based on the material on record, the rate awarded was unconscionably low.

#21. He presses this arithmetical exercising of averaging even further, for he says that the average of these averages (Rs 611 and Rs 712) is approximately Rs 662 per sq mt. In both References, the claim was for Rs 1000 per sq mt. The ‘median’ between this average-of-averages, Rs 662 per sq mt, and the claim of Rs 1000 sq mt is Rs 721 per sq mt. The Ready Reckoner (“RR”) rates for 1999 for Soregaon was Rs 425 per sq mt.

#22. But size matters. The acquisition was of huge tracts of land: in FA 71 of 2014, it was 67,273 sq mts. The only comparable sale instance is at Sr No 10 of the tabulation, of 18th August 1998, of land belonging to the Shikshan Prasark Mandali, Pune. Altogether two hectares and 23 Are fell into acquisition. This land, Dr Sabban says, was no more 700 mts distance from the subject lands. The consideration was Rs 67.75 lakhs, which computes to Rs 276 per sq mt.

#23. He then goes to claim that an annual rise of 12% per annum should be computed, bringing this figure to Rs 295 per sq mts. The 6 Paper book, p. 241. 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS total for the entire acquired land (in which the Appellants have a fractional interest) would be Rs 1,98,45,535. Deducting the amount awarded, the enhancement ought to be Rs 1,87,27,195/- and the Appellants’ 8.32% share would work out to Rs 15,58,103/-. In addition, there is a claim for 30% solatium, an additional amount at 12% per annum under Section 23(1-A) from the dated of the Section 4 notification to the date of Award (15 months), bringing the Appellants’ share to Rs 22,59,249. On this, interest at 9% per annum is claimed for the first year and 15% per annum for the remaining period from the date of possession until deposit. This would bring the claim of the Appellants to Rs 50,15,365. Then there is also a claim for additional interest under Section 48 at 15% per annum, and also a claim for ‘equitable interest’ at 6% per annum.

#24. In First Appeal No 135 of 2014, while the submissions follow the same trajectory, the figures will differ. The award for Rs 13,05,212/-, averaging Rs 16.64 per sq mt. The Appellants relied on 11 sale instances and eight awards,7 to contend that the rates ranged from Rs 276 per sq mt to Rs 1144 per sq mt, averaging, again, roughly Rs 611 per sq mt. Again, the averaging method is used to first claim Rs 662 per sq mt. Here, the Appellants had claimed Rs 400 per sq mt. The so-called ‘median’ was said to be Rs 721 per sq mt and the RR rate for 1996 for Soregaon was pegged at Rs 400 per sq mt. The instance of Shikshan Prasarak Mandali is again cited. The claim here is for Rs 1,30,77,982, plus solatium and interest, bringing the total claim to Rs 4,14,42,780/-, on which there is a claim for further equitable interest. 7 Paper book, pp. 62 and 60. 20th October 2023 AVADABAI B KENDALE & ORS V THE STATE OF MAHARASHTRA & ORS

#25. Dr Sabban relied on the decisions of the Supreme Court in: (a) Madishetti Bala Ramul v Land Acquisition Officer;8 (b) Tahera Khotoon & Ors v Revenue Divisional Officer/Land Acquisition Officer & Ors;9 (c) Balwan Singh & Ors v Land Acquisition Collector & Anr;10 and (d) State of Maharashtra & Ors v Maimuma Banu & Ors.11

#26. Additionally, on the invoked principle of parity, he relied on: (a) UP Awas Evam Vikash Parishad v Asha Ram;12 (affirmed in Asha Ram v UP Awas Evam Vikash Parishad13); (b) (c) State of Madras v AM Nanjan & Anr;14 Bhagat Singh & Ors v Union of India & Anr;15 (d) Hans Raj Sharma v Collector, Land Acquisition, Tehsil and District Doda;16 (e) Parmeshwari Devi & Ors v Punjab State Electricity Board & Anr;17 8 9 10 11 12 13 14 15 16 17