High Court
Legal Reasoning
{1} FA-3381-2015 IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 3381 OF 2015Radhabai w/o Kalu TitameAge- 67 years, Occu: H.H. & Agril,R/o. Nimbral, Tq. Akole,District- Ahmednagar....APPELLANT[Orig. Claimant]VERSUS1.The State of MaharashtraThrough its Secretary,Water Resources DepartmentMantralaya, Mumbai-32.2.The Collector, Ahmednagar,Through Special Land AcquisitionOfficer No. 3, Aurangabad Road,Ahmednagar.3.The Executive Officer,Urdhva Pravara Right Canal,Division Akole, District- Ahmednagar....RESPONDENTS [Orig. Respondents]Mr. R.L. Kute, Advocate for appellantMr. B.R. Surwase, Advocate for respondent No. 3Mr. R.B. Dhaware, AGP for State....… CORAM : NITIN B. SURYAWANSHI, J. RESERVED ON : 9th SEPTEMBER, 2024 PRONOUNCED ON : 20th SEPTEMBER, 2024 JUDGMENT :1.By this appeal filed under section 54 of LandAcquisition Act, 1894, claimant challenges judgment and awardBhagyawant Punde {2} FA-3381-2015dated 26.08.2015 passed by Civil Judge, Senior Division,Sangamner in Land Acquisition Reference No. 9 of 2012.2.36 Are land out of Gut No. 66/11 of the claimant wasacquired for construction of Upper Pravara Right Canal.Notification under section 4 of the Land Acquisition Act, 1894(for short “L.A. Act”) was published in Gazette on 27.03.2008and in Daily Sarvamat and Nagar Times on 22.03.2008.Declaration under section 6 was published in Gazette on08.01.2009 and in the newspapers i.e. Daily Anand Sangamnerand Daily Shrirampur Express on 25.03.2009 and 12.01.2009.Special Land Acquisition Officer passed award on 20.04.2011 andawarded compensation to the acquired land @ 3,40,000/- perHectare. Being dissatisfied with the award claimant preferredLand Acquisition Reference No. 9/2012. Owner of the land GutNo. 66/9 whose 2 Are land was acquired by same notificationalso filed Land Acquisition Reference No. 10/2012. Bothreferences were tried together and claimant filed purshis to treatthe evidence led in Land Acquisition No. 10/2012 about saleinstance. Reference Court partly allowed the references andawarded compensation @ Rs. 4,50,000/- per Are. Claimant isaggrieved by inadequate compensation awarded by theBhagyawant Punde {3} FA-3381-2015Reference Court.3.Heard learned advocate for claimant, learned AGP forState and learned advocate for acquiring body.4.Learned advocate for the claimant submits thatdeclaration under section 6 was published in Gazette on08.01.2009 and in newspapers on 25.03.2009 and the awardwas passed on 20.04.2011, which is beyond the period of twoyears, in view of Section 11A of the L.A. Act. Therefore, award islapsed, hence acquiring body needs to take fresh steps foracquisition of land of claimant. In support of this submission herelied on Mohan and Another vs. State of Maharashtra andOthers, AIR 2007 SC 2625.By relying on the amendment made in the firstappeal, he submits that, claimant has challenged the award onthe ground that award is beyond the period of two years in viewof Section 11A of the L.A. Act and therefore award is lapsed.In the alternate he submits that Reference Court hasawarded inadequate compensation and has committed error innot relying on sale instance at Exhibit-18 by which 12 Are landwas sold @ Rs. 16,66,000/- per Hectare. The same wasdiscarded by Reference Court by giving unacceptable reasons.Bhagyawant Punde {4} FA-3381-2015He submits that Reference Court has observed that Survey No.43 is adjacent to the gavthan by relying on the village mapExhibit-26. Only a river is passing in between land of claimantand land Gut No. 43. He submits that, in fact claimant’s land isalso near gavthan area. Further submission is that the ReferenceCourt has relied on sale instance at serial No. 9 in the finalaward by which 17 Are land out of Gut No. 68/12 was sold forRs. 71,000/- i.e. @ 4,17,647/- per Hectare. He submits thatReference Court has ignored the sale instance at serial no. 3 bywhich 14.5 Are land out of Gut No. 44/6 is sold for Rs.2,00,000/- i.e. @ 14,28,572/- per Hectare. By relying onMehrawal Khewaji Trust (Regd.) Faridakot and Others vs. Stateof Punjab and Others, AIR 2012 SC 2721 he submits that saleinstance of highest value ought to have been relied upon by theReference Court and claimant is entitled for said rate as perserial no. 3 of the award.5.Per contra, learned advocate for acquiring bodysubmits that ground of lapsing of award under Section 11A ofthe L.A. Act is not available to the claimant as the claimant hasacquiesced the award and has accepted the compensationamount and challenged it before the Reference Court seekingBhagyawant Punde {5} FA-3381-2015enhanced compensation. If he wanted to raise this ground, thenimmidiately after passing of the final award he ought to haveapproached this Court by filing writ petition, which the claimanthas failed to do and therefore this ground is not available to him.He submits that land of the claimant is near village Mahaldeviswhereas land Gut No. 43 and 44 are adjacent to gavthan ofvillage Nimbral. Similarly, land Gut No. 52 is on the bank ofcanal, therefore, these lands have fetched higher market value.By supporting impugned judgment and award passed by theReference Court he submits that there is no merit in the firstappeal and it may be dismissed.6.In reply, learned advocate for claimant submits thatGut No. 66 is on the boundary of village Mahaldevis and not nearthat village. Therefore, there is no merit in the submission ofacquiring body.7.Learned AGP supported the impugned judgment.8.Heard learned advocate for claimant, learned AGP forState and learned advocate for acquired body at length. Perusedthe record.9.At the outset, argument of the claimant that award ispassed beyond the period of two years as provided underBhagyawant Punde {6} FA-3381-2015Section 11A of the L.A. Act and therefore it has lapsed is statedto be rejected. The judgment relied upon by claimant in Mohanand Another (supra) was passed in appeal filed against theimpugned judgment of this Court in a writ petition, therefore, itis clear that claimants therein had filed writ petition challengingthe acquisition on the ground that since award is passed beyondthe period of two years, provided under Section 11A of the L.A.Act, same is lapsed. In the present case, claimant has notchallenged the award by filing writ petition and has accepted thecompensation under protest and filed reference seekingenhancement, hence, said ground is not available to theclaimant.10.Coming to the next argument of claimant seekingenhancement of compensation, two sale instances Exhibits- 18and 19 are relied upon before the Reference Court. By saleinstance (Exhibit-18), land Survey No. 4315 admeasuring 12 Aresituated at mauje Nimbral, Taluka- Akole along with share in thewater of Ambika Samudaik Panipurvatha Yojna is sold on13.03.2006 for consideration of Rs. 2,00,000/- i.e. (@ Rs.16,66,600/- per Hectare).By sale instance (Exhibit-19) dated 15.05.2007, 43Bhagyawant Punde {7} FA-3381-2015Are irrigated land out of Survey No. 52/12 was sold forconsideration of Rs. 4,00,000/- i.e. (@ Rs. 9,30,232/- perHectare). 11.The Reference Court has refused to rely on saleinstance Exhibit-18 on the ground that land under said saleinstance is adjacent to the purchaser of Survey No. 43/13 andtherefore, there is every possibility that higher considerationamount is paid by the purchaser. Reference Court has furtherrefused to rely on sale instance Exhibit-19 on the ground thatland under said sale instance is at far distance from the acquiredland, and claimant has failed to bring on record any evidence toshow that said land is nearer to the acquired land.12.Reference Court has relied on sale instance at serialno. 9 in the award (Exhibit-20) for arriving at market value, inwhich by sale deed dated 25.02.2008, land admeasuring 0.17Are out of Gut No. 68/12 is purchased for consideration of Rs.71,000/- i.e. (@ Rs. 4,17,647/- per Hectare). By relying on saidsale instance and as the land of claimant is irrigated land,Reference Court has awarded compensation @ Rs. 4,50,000/-per Hectare. The claimant is right in submitting that ReferenceCourt has ignored sale instances at serial nos. 2 and 3, whichBhagyawant Punde
Legal Reasoning
{8} FA-3381-2015are as follows:v-u-[kjsnhfnukad{ks=XkV uavkdkj[kjsnh fdaergsDVjhvkdkjgsDVjh fdaertehuoxZƒ&&&&&&&&„„Œ@6@060-2649@71-152]00]000@&4-427]69]231@&3…13@10@060-14-544@60-752]00]000@&5-3514]28]571@&4†&&&&&&&&13.Indeed there is substance in the contention ofclaimant that Reference Court without assigning any reason hasignored sale instances at serial nos. 2 and 3. Land admeasuring0.14.5 Are out of Gut No. 44/6 was sold for consideration of Rs.2,00,000/- i.e. (@ Rs. 14,28,571/- per Hectare), which ismentioned at serial no. 3 in the award is abutting to the gavthanand is adjacent to land under sale instance Exhibit-18. There isevery possibility that because the said land is adjacent to thegavthan, it has fetched higher price.14.Considering the evidence on record it would beappropriate to consider sale instance at Exhibit-18 fordetermining market value of the acquired land. From the villagemap (Exhibit-26) placed on record it appears that land undersale instance Exhibit-18 is abutting to the gavthan. It furtherBhagyawant Punde {9} FA-3381-2015appears that acquired land Gut No. 66 of the claimant is situatedat some distance from land Gut No. 43 and both these lands aredivided by a river. There is river in between gavthan, land GutNo. 43, 44 and the acquired land. By sale instance (Exhibit-18)land is sold @ Rs. 16,66,600/- per Hectare. In view of decision inChindha Fakira Patil (D) through L.Rs v. The Special LandAcquisition Officer- Jalgaon, AIR 2012 SC 481, highest saleinstance needs to be taken into consideration and hence saleinstance at (Exhibit-18) being highest sale instance, needs to betaken into consideration for determining market value of theacquired land. As per this sale instance, market value of the landunder sale instance is Rs. 16,66,600/- per Hectare. The saleinstance being of the year 2006 i.e. two years prior to the dateof notification under Section 4 of the L.A. Act, 10% increase peryear needs to be added in view of decision in Mehrawal Khewaji(supra). Thus, the market value would be Rs. 16,66,600 +3,33,320 i.e. 20% equals to Rs. 19,99,920/-.15.Considering the fact that land under sale instance(Exhibit-18) and land Gut No. 44 are abutting to gavthan itwould be appropriate to make 50% deduction from the marketvalue of land i.e. 19,99,920 – 50% = 9,99,960/-. Since,Bhagyawant Punde {10} FA-3381-2015Reference Court has awarded compensation @ Rs. 4,50,000/-per Hectare, by deducting the same, claimant is entitled forenhanced compensation @ Rs. 5,49,960/- (9,99,960 –4,50,000).16.In the result, following order:ORDER(I)First Appeal is partly allowed with proportionate costs.(II)Impugned judgment and award dated 26.08.2015passed by Civil Judge, Senior Division, Sangamner inLand Acquisition Reference No. 9 of 2012 is modified tothe effect that claimant is held entitled for enhancedcompensation @ Rs. 5,49,960/- per Hectare along withall statutory benefits. (III)Acquiring Body shall deposit the enhanced compensationamount along with statutory benefits in the ReferenceCourt within 12 weeks from uploading of this judgment.On such deposit, claimant is entitled to withdraw thesame.(IV)Claimant shall pay additional Court fees as per rules. [NITIN B. SURYAWANSHI, J.]Bhagyawant Punde