Agriculture, R/o Kirtapur, Tq. Mantha, District Jalna v. 01 The State of Maharashtra, through the Collector, Jalna. 02 The Special Land Acquisition
Case Details
{1} fa452717.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 4527 OF 2017 Vinayak s/o Babasaheb Pote, age: 50 years, Occ: Agriculture, R/o Kirtapur, Tq. Mantha, District Jalna. Versus 01 The State of Maharashtra, through the Collector, Jalna. 02 The Special Land Acquisition Offcer Minor Irrigation Diiision), Kirtapur Percolation Tank Project, Jalna. 03 The Executiie Engineer, Minor Irrigation Diiision Local Sector), Kirtapur Percolation Tank No.1, Jalna. Appellant Respondents WITH FIRST APPEAL NO. 4528 OF 2017 Vishnu @ Bhagwan s/o Sambhaji Kendre, age: 50 years, Occ: Agriculture, R/o Kirtapur, Tq. Mantha, District Jalna. Appellant Versus 01 The State of Maharashtra, through the Collector, Jalna. 02 The Special Land Acquisition Offcer Minor Irrigation Diiision), {2} fa452717.odt Kirtapur Percolation Tank Project, Jalna. 03 The Executiie Engineer, Minor Irrigation Diiision Local Sector), Kirtapur Percolation Tank No.1, Jalna. Respondents WITH FIRST APPEAL NO. 4462 OF 2017 Gajanan s/o Babasaheb Pote, age: 50 years, Occ: Agriculture, R/o Kirtapur, Tq. Mantha, District Jalna. Versus 01 The State of Maharashtra, through the Collector, Jalna. 02 The Special Land Acquisition Offcer Minor Irrigation Diiision), Kirtapur Percolation Tank Project, Jalna. 03 The Executiie Engineer, Minor Irrigation Diiision Local Sector), Kirtapur Percolation Tank No.1, Jalna. Appellant Respondents
Legal Reasoning
Mr. Ajay Shinde, adiocate for the Appellants. Mr. A, A. Jagatkar, AGP for the Respondents. CORAM : SANDIPKUMAR C. MORE, J. Reseried on : 17th August, 2022. Pronounced on : 07th September, 2022. {3} fa452717.odt JUDGMENT : 1 All the appellants, in these appeals, haie challenged the judgments and awards dated 28th July, 2016, passed by the learned 4th Joint Ciiil Judge, Senior Diiision, Jalna herein after referred to as “the Reference Court”) in their respectiie Land Acquisition References bearing Nos. 258/2010 Old LAR No. 121/2008), 330/2010 Old LAR No. 100/2008) and 767/2010 Old LAR No. 100/2008). 2 The learned Counsel for the appellants submits that the learned Reference Court has dismissed the aforesaid References as the appellants could not lead any eiidence in their respectiie Land Acquisition Reference Cases and, therefore, it cannot be said that the learned Reference Court has decided all these Reference Cases on merits. Thus, the learned Counsel for the appellants submits that all these appeals are required to be allowed partly and the matters need to be remanded back for fresh decision. He further submits that this Court, in bunch of Writ Petitions, bearing W. P. No. 12795 of 2019 along with other connected petitions, {4} fa452717.odt by referring to the iarious judgments of this Court and the Hon’ble Apex Court, has taken a similar iiew while passing judgment dated 17.01.2020. Thus, he prayed for passing similar order. 3 On the contrary, the learned AGP, though strongly opposed the contention of the learned Counsel for the appellants, but in the alternatiie, submitted that since there was no opportunity for the appellants before the learned Reference Court to lead eiidence, remand order may be passed. 4 Heard riial submissions and also perused the record including impugned judgments and awards. 5 It is signifcant to note that on perusal of all the impugned judgments, it is clearly eiident that in all the Land Acquisition Reference Cases, the learned Reference Court has made an obseriation that the present appellants, despite of suffcient opportunity, could not lead eiidence and, therefore, {5} fa452717.odt the Land Acquisition Reference Cases were dismissed and the award passed by the Special Land Acquisition Offcer was confrmed. The learned Counsel for the appellants has heaiily relied upon the judgment of this Court in W. P. No.12795 of 2019, as mentioned aboie. 6 On going through the judgment dated 17.01.2020, passed by this Court in W. P. No.12795 of 2019 and other connected matters, it reieals that this Court has referred to iarious judgments passed by the Diiision Bench of this Court and the Hon’ble Apex Court and fnally concluded that the Reference under Section 18 of the Land Acquisition Act is not an appeal against the award and, therefore, it cannot be dismissed in default for want of eiidence of the claimants. This Court, in para 5 of the said judgment, has made following obseriations: “5. Learned counsel for the petitioners in respectiie writ petitions, submit that the Diiision Bench came to be constituted by the Hon’ble the Chief Justice to consider “where a reference under Section 18 of the Land {6} fa452717.odt Acquisition Act was dismissed otherwise than on merits, a ciiil reiision application under Section 115 of the Ciiil Procedure Code was permissible and to consider also as to whether the appeal is maintainable”. The Diiision Bench of this Court Coram: Prasanna B. Varale and Aiinash G. Gharote, JJ.) while dealing with the said question, by referring the case of Khazan Singh is. Union of India, reported in 2002 2) SCC 242, has held that the reference has to be decided by the ciiil court on the basis of the material before it, on merits, alongwith the other fndings recorded as summarized in para 31 of the said judgment. Learned counsel submit that in iiew of the obseriations made by the Supreme Court in the case of Chimanlal Hargoiinddas is. Special Land Acquisition Offcer, Poona and another, reported in AIR 1988 SC 1652, the impugned orders passed by the Reference Courts are liable to be quashed and set aside.” 8 Further, in paragraph no. 7 also, this Court has referred to paragraph 31 of the judgment of Diiision Bench of this Court Coram: Prasanna B. Varale and Aiinash G. Gharote, JJ.) in Ciiil Reiision Application No. 63 of 2017 and other connected matters, which is reproduced herein below: {7} fa452717.odt “31.
Decision
In the result, we hold as under : A) that a ciiil reiision application u/s. 115 of C.P.C. against, any order passed, otherwise than on merits, in an application u/s. 18 of the L.A. Act by the Ciiil Court, is not maintainable. B) We also hold that the judgments in the case of Kawadu Madhai Bansod, Appasaheb Mohanrao Chede, Kamlakar Laxman Suryawanshi and Irnappa @ Irappa Angire supra), holding that a ciiil reiision application is maintainable, are rendered per-incuriam to the statutory proiisions as contained in the proiiso to sub- section 1) of section 115 of the Code of Ciiil Procedure and are also rendered per-incuriam in iiew of the judgment of the Hon’ble Apex Court in the case of Shii Shakti supra). C) We also hold that an ‘order otherwise than on merits’, passed in proceedings u/s. 18 of the L.A. Act, by the Ciiil Court, cannot be considered as an award and, therefore, does not amount to a decree, as defned in Section 2 2) of C.P.C. by iirtue of the deeming proiision u/s. 26 2) of the L.A. Act and, therefore, an appeal against it also would not be maintainable. D) We hold that the judgment in Venkat’s case supra), holding that an appeal is maintainable, is on a {8} fa452717.odt different footing altogether considering that the judgment passed therein was on merits after considering the eiidence and, therefore, was an award and consequently a decree u/s. 2 2) of C.P.C. by application of Section 26 2) of the L.A. Act. E) We further hold that a reference u/s. 18 of the L.A. Act, in the light of the mandate as laid down by the Hon’ble Apex Court in the case of Khazan Singh supra), has to be decided by the Ciiil Court on the basis of the material before it, on merits. F) We further hold that an ‘order passed otherwise than on merits’ in proceedings u/s. 18 of the L.A. Act by the Ciiil Court, in case it has been so passed, would be susceptible to a challenge under Article 227 of the Constitution of India before the High Court in its superiisory jurisdiction, or u/o IX Rule 9 r/w. Sec. 151 CPC. by iirtue of section 53 of the L.A. Act.” 9 Further, in the case of of Khazan Singh Vs. Union of India, reported in 2002 2) SCC 242, the Hon’ble Supreme Court has held that, the Ciiil Court, hearing a reference, has no jurisdiction to dismiss the reference for default. 10 In the case of Chimanlal Hargoiinddas Vs. Special {9} fa452717.odt Land Acquisition Offcer, Poona and another supra), the Hon’ble Supreme Court, in para 4 of the judgment, has obseried as below: “4. The following factors must be etched on the mental screen: 1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition offcer in his Award unless the same material is produced and proied before the Court. 2) So also the Award of the Land Acquisition offcer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition offcer and the material utilized by him for making his ialuation cannot be utilized by the Court unless produced and proied before it. It is not the function of the Court to sit in appeal against the Award, approie or disapproie its reasoning, or correct its error or affrm, modify or reierse the conclusion reached by the Land Acquisition offcer, as if it were an appellate court. 3) The Court has to treat the reference as an original proceeding before it and determine the market ialue afresh on the basis of the material produced before it. {10} fa452717.odt 4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proied by the other side can also be taken into account for this purpose. 5) The market ialue of land under acquisition has to be determined as on the crucial date of publication of the notifcation under sec. 4 of the Land Acquisition Act dates of Notifcations under secs. 6 and 9 are irreleiant). 6) The determination has to be made standing on the date line of ialuation date of publication of notifcation under sec. 4) as if the ialuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the iendor is willing to sell the land at a reasonable price. 7) In doing so by the instances method, the Court has to correlate the market ialue refected in the most comparable instance which proiides the index of market ialue. 8) only genuine instances haie to be taken into account. Some times instances are rigged up in anticipation of Acquisition of land). 9) Eien post notifcation instances can be taken into account 1) if they are iery proximate, 2) genuine and 3) the acquisition itself has not motiiated the purchaser to pay a higher price on account of the resultant {11} fa452717.odt improiement in deielopment prospects. l0) The most comparable instances out of the genuine instances haie to be identifed on the following considerations: i) proximity from time angle, ii) proximity from situation angle. 11) Haiing identifed the instances which proiide the index of market ialue the price refected therein may be taken as the norm and the market ialue of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors iis-a-iis land under acquisition by placing the two in juxtaposition. 12) A balance-sheet of plus and minus factors may be drawn for this purpose and the releiant factors may be eialuated in terms of price iariation as a prudent purchaser would do. 13) The market ialue of the land under acquisition has there after to be deduced by loading the price refected in the instance taken as norm for plus factors and unloading it for minus factors 14) The exercise indicated in clauses 11) to 13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustratiie not exhaustiie) factors: Plus factors Minus factors 1. Smallness of size 1. largeness of area {12} fa452717.odt 2. situation in the interior at a distance from the road 3. narrow strip of land with iery small frontage compared to depth. Lower leiel requiring the depressed portion to be flled up. 5. remoteness from deieloped locality. some 6. special disadiantageous factor which would deter a purchaser 2. proximity to a road. 3. frontage on a road 4. nearness to deieloped area. 5. regular shape 6. leiel iis-a-iis land under acquisition 7. special ialue for an owner of an adjoining property to whom it may haie some iery special adiantage. 15) The eialuation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l0000 sq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will haie to be deieloped by preparing a lay out, cariing out roads, leaiing open space, plotting out smaller plots, waiting for purchasers meanwhile the iniested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for {13} fa452717.odt cariing out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building actiiity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. 16) Eiery case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself. 17) These are general guidelines to be applied with understanding informed with common sense.” 11 On going through all these obseriations, the fact is apparent that the learned Reference Court cannot dismiss the Land Acquisition Reference cases for default. Further, the impugned judgments and awards clearly indicate that though there was an opportunity giien to the appellants to lead eiidence, but ultimately eiidence could not be led. Howeier, in iiew of the aforesaid obseriations, the Diiision Bench of this Court and the Hon’ble Supreme Court are of the opinion that an opportunity for leading eiidence must be giien to the appellants/claimants keeping in mind the principles of natural justice. This Court, therefore, cannot take a different {14} fa452717.odt iiew than the iiew taken by this Court in the aforesaid judgment dated 17.01.2020 in Writ Petition No. 12795 of 2019 and connected matters. 12 In the result, following order is passed: i) All these appeals are hereby partly allowed. ii) The impugned judgments and awards dated 28th July, 2016, passed by the 4th Joint Ciiil Judge, Senior Diiision, Jalna, in Land Acquisition References bearing Nos. 258/2010 Old LAR No. 121/2008), 330/2010 Old LAR No. 100/2008) and 767/2010 Old LAR No. 100/2008), are hereby quashed and set aside. iii) The Land Acquisition References bearing Nos. 258/2010 Old LAR No. 121/2008), 330/2010 Old LAR No. 100/2008) and 767/2010 Old LAR No. 100/2008), are restored to their respectiie original position. {15} fa452717.odt ii) The concerned Reference Court shall permit the applicants/claimants to lead oral and documentary eiidence in their respectiie Land Acquisition Reference Cases. Needless to say that the Respondent-State or the Acquiring body, as the case may be, are also permitted to lead oral and documentary eiidence in support of their riial contentions. i) The appellants/original claimants shall appear before the concerned Reference Court in their respectiie Land Acquisition Reference Cases on 30th September, 2022. ii) The appellants shall cooperate the concerned Reference Court to dispose of their respectiie Land Acquisition Reference Cases as early as possible. iii) The appeals are accordingly disposed of in the aforesaid terms. adb SANDIPKUMAR C. MORE) JUDGE