Sunday 5 November 2017

Whether compensation in land acquisition can be granted at commercial rate even if no application was made for non-agricultural use?

 Learned counsel for appellant has placed reliance on the judgment of the Apex Court in Digamber & Ors. vs. State of Maharashtra & Ors. reported in MANU/SC/0777/2013 : AIR 2013 SC 3532 and State of Orissa vs. Brij Lal Misra and others reported in MANU/SC/0057/1996 : (1995) 5 SCC 203 to submit that while assessing the market value of the land, future development in the nearby area is required to be considered. It is submitted that in the instant case, as the land was acquired for the non-residential purpose and the surrounding lands were also being used for non- residential purpose, the market price of the land has to be calculated at commercial rate.

14. However, in this respect learned counsel for respondents has relied upon the judgment of Apex Court in Special Land Acquisition Officer vs. Karigowda and others reported in MANU/SC/0299/2010 : (2010) 5 SCC 708, wherein reliance is placed on its own decision in the case of State of Orissa vs. Brij Lal Misra and others reported in MANU/SC/0057/1996 : (1995) 5 SCC 203 and it was held in para 48 "that the increase in the amount awarded by way of compensation keeping in view the potentiality of the land and further increase on future potentiality would be contrary to the provisions of Clauses "fifthly and sixthly" of Section 24 of the Act. The provisions of the Act require the Court to take into consideration various other factors including increase in the value of the acquired land likely to accrue from the use for which it was acquired may be put to on a subsequent stage in regard to layout or important scheme etc." Admittedly, in the instant case, the appellant's land was used for agriculture purpose and he has not applied for non-agricultural use or for laying out plots. In such circumstances, merely because other nearby lands are used non-agricultural purposes or after acquisition, appellant's land was to be used for non-agricultural purposes, the compensation cannot be granted at the commercial rate.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 79 of 2006

Decided On: 12.06.2017

Abdul Hamid Vs.State of Maharashtra and Ors.

Hon'ble Judges/Coram:
Dr. Shalini Phansalkar Joshi, J.

Citation: 2017(5) MHLJ 799


1. Being aggrieved by the judgment and order dated 02.04.2005 passed in Land Acquisition Case No.45/1995 by the 4th Ad hoc Additional District Judge, Wardha, whereby the additional compensation of Rs. 2,64,390/- as against the claim for enhancement of Rs. 1,26,199/- was granted, the appellant has preferred this appeal.

2. Facts of the appeal can be stated as follows:

In pursuance of the notification issued under Section 4 of the Land Acquisition Act on 14.12.1989, the land bearing S.No.495 admeasuring 3.0 hectare of Mouza Deoli situated on Deoli-Wardha and Deolin-Pulgaon road came to be acquired. The Land Acquisition Officer assessed the market value of the land at the rate of Rs. 28,000/- per hectare. He also allowed the amount of Rs. 51,799/- for the well situated in the land and Rs. 2,10,262/- towards the fruit bearing and other trees. The total claim of Rs. 3,48,391/- was allowed with solatium and interest by the award dated 13.07.1997.
3. Being not satisfied with the same, the appellant/claimant approached the learned Reference Court contending inter alia that the amount of compensation granted towards the price of the land was nominal only and it should be increased to the rate of Rs. 1,125,000/- per hectare. Even as regards the compensation for well, it was claimed that the proper amount of compensation will be of Rs. 1,50,000/- and not Rs. 51,799/-, as awarded by the Land Acquisition Officer. It was further submitted that there were totally 277 orange trees in the land and hence, the compensation at the rate of Rs. 2500/- per tree comes to Rs. 6,92,500/-, whereas the learned Reference Court has awarded the amount of Rs. 2,10,262/- only in totality. It was further submitted that the Land Acquisition Officer has not awarded any amount towards the compensation of the cement pipeline laid in the acquired land. The said pipeline is running 1900 sq.ft. and at the rate of Rs. 150/- per feet the compensation of Rs. 2,85,000/- should be awarded, which was not awarded by the Land Acquisition Officer. The appellant has also claimed compensation of Rs. 32,000/- towards 8 teak wood trees at the rate of Rs. 4000/- per tree and Rs. 7500/- for 5 hybrid bor trees. According to the learned counsel for appellant, without considering the situation, location and potentiality of the acquired Land Acquisition Officer has awarded the compensation, hence it needs to be enhanced. Reference Court allowed the petition partly enhancing the compensation amount by Rs. 2,64,390/- as against the claim of Rs. 1,26,199/-.

4. Before the Reference Court, in support of his case, the appellant has examined himself and two more witnesses to bring on record the evidence relating to sale instances. According to him, in the year 1989 the market price of the land was Rs. 1,25,000/- per hectare. His field was just near to the limit of the Municipal Council and it was on Deoli-Wardha road and Deoli-Pulgaon road. Moreover, it had non-agricultural potential. The area nearby was occupied by the offices of Agricultural Produce Market Committee, Ginning and Pressing Factory, Tahsil Office, Government Rest House. The weekly bazaar of Deoli town was just at a distance of 1 km. Further, the quality of the land was fertile and the field was irrigated with water from the well. The appellant also examined witness No.2-Ravindrakumar to prove the sale-deed executed in the year 1983. He has further examined witness No.3 to prove another sale transaction of the year 1995.

5. The learned Reference Court did not consider the second sale transaction, it being of the year 1995, and therefore, post notification.

6. As regards the sale instance produced and proved through the evidence of witness No. 2-Ravindrakumar, learned Reference Court found that it was of the year 1983 and the plot purchased was admeasuring 2340 sq.mt. for the amount of Rs. 7,55,334/-. The learned Reference Court therefore held that this sale instance is of a much smaller portion of the land than the acquired land. Secondly though it was stated by this witness that the land purchased by the Bank is near the land acquired, the map (Exh.50) produced on the record, nowhere showed that this land purchased by the Bank was adjacent to the acquired land. The Reference Court has considered this aspect in para 8 of its judgment. It has also considered that the description of this plot, as given in the sale-deed made it clear that the said plot was near the residential area and Survey No. 125 of that plot must be far away from the acquired land of the appellant, which was bearing Survey No.495. The Reference Court also found that in the map Exh.50, the said survey number of the land purchased by the Bank was not appearing. In this appeal also on perusal of the map (Exh.50) it is noticed that the Survey No.125 of the plot acquired by Bank, is not at all appearing either adjacent or near the field of the appellant. In such a situation, the said sale instance is rightly not relied upon by the Reference Court as comparable sale instance.

7. Learned counsel for the respondent has in this respect rightly placed reliance on the judgment of the Apex Court in Shaji Kuriakose and another vs. Indian Oil Corpn. Ltd. and others reported in MANU/SC/0465/2001 : (2001) 7 SCC 650, in para 3 of this judgment which is reproduced below:

3. It is no doubt true that courts adopt comparable sales method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalization of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be fulfilled and on fulfillment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia are: (1) the sale must be a genuine transaction, (2) that the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act, (3) that the land covered by the sale must be in the vicinity of the acquired land, (4) that the land covered by the sales must be similar to the acquired land, and (5) that the size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the court to proportionately reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land.
8. In the present case, if the above criteria as laid down by the Apex Court are applied, it can be seen that the appellant has failed to bring sufficient evidence on record to show that the land under the sale-deed of the Bank was in the vicinity of the acquired land. Moreover, there is also no evidence to show that the land covered by the said sale-deed is similar to the acquired land. The said land was also comparatively of much smaller size. In such a situation, the sale instance proved through the evidence of witness No.2 by the appellant cannot be used for awarding the compensation, at the rate mentioned in the said sale-deed.

9. The learned Reference Court has thus in the absence of any cogent evidence regarding the sale instances, rightly relied upon the earlier judgment in L.A.C. Nos. 51/1995, 54/1995, 55/1995 and 63/1995. The said judgment pertains to the lands acquired from the same area and the survey numbers of those lands are found reflected in the map Exh.50. The Reference Court therefore, held that those plots are similarly situated and hence the market price of the said lands as assessed by the Reference Court for those lands at the rate of Rs. 30,000/- for dry crop land and Rs. 45,000/- for irrigated land can be made applicable to the instant case also. In para 10 of its judgment the learned Reference Court held that there was no evidence to show that entire acquired land was irrigated because the field is big one admeasuring 3 H 8 R and the total orange trees cultivated therein were only 277. Therefore, it reflects that only portion of the field was under irrigated crop of orange trees. In the absence of any evidence relating to laying down pipeline in the field, the Reference Court found it would not be proper to grant compensation at the rate of Rs. 45,000/- per hectare, as was granted in the reference in one of the case and hence, granted the compensation at the rate of Rs. 30,000/- per hectare.

10. In my considered opinion the Reference Court should not have reduced the amount of compensation in this case, which was awarded to the other lands acquired under L.A.C. Nos. 51/1995, 54/1995, 55/1995 and 63/1995. The compensation awarded in those references at the rate of Rs. 30,000/- for dry crop land and Rs. 45,000/- for irrigated land should be awarded in this case also and to that extent the modification is required in the impugned judgment and order of the Reference Court. Accordingly, it is directed that the compensation for the acquired land be calculated at the rate of Rs. 30,000/- for non-irrigated land and Rs. 45,000/- for irrigated land.

11. As regards the claim, made by the appellant towards the cost of pipeline, learned counsel for respondent Nos. 1 and 2 has relied upon the definition of the 'land' as given in Section 3 sub-clause (a) which states that "the expression 'land' includes benefits arising out of land, and things attached to the earth or permanently fastened to anything attached to the earth." Herein in the case it is submitted by learned counsel for the respondent Nos.1 and 2 that the pipeline being attached to the earth or permanently fastened to anything attached to the earth, price of the said pipeline is included in the benefits arising out of the land. Therefore, no separate amount of compensation can be awarded towards the construction of pipeline. Learned counsel for respondents has also pointed out that absolutely no evidence is produced on record by the appellant to prove the construction of the pipeline. This Court also finds that Reference Court has considered this aspect in para 10 of its judgment, and has specifically observed that there is no evidence that pipeline was laid down in the field to supply water from the well. In such a situation, in the absence of any sufficient material produced on record merely on the vague statement of the appellant that he has laid the pipeline, the amount of compensation cannot be awarded towards the construction of the pipeline.

12. As regards the compensation for orange trees, though according to appellant, the amount awarded is not sufficient, again no evidence was produced on record by the appellant as regards the yield of the orange trees or the approximate income which he was getting from those trees or even as to the age of those trees. In the absence thereof, the valuation arrived at by the Land Acquisition Officer and confirmed by Reference Court cannot be disturbed with.

13. Learned counsel for appellant has placed reliance on the judgment of the Apex Court in Digamber & Ors. vs. State of Maharashtra & Ors. reported in MANU/SC/0777/2013 : AIR 2013 SC 3532 and State of Orissa vs. Brij Lal Misra and others reported in MANU/SC/0057/1996 : (1995) 5 SCC 203 to submit that while assessing the market value of the land, future development in the nearby area is required to be considered. It is submitted that in the instant case, as the land was acquired for the non-residential purpose and the surrounding lands were also being used for non- residential purpose, the market price of the land has to be calculated at commercial rate.

14. However, in this respect learned counsel for respondents has relied upon the judgment of Apex Court in Special Land Acquisition Officer vs. Karigowda and others reported in MANU/SC/0299/2010 : (2010) 5 SCC 708, wherein reliance is placed on its own decision in the case of State of Orissa vs. Brij Lal Misra and others reported in MANU/SC/0057/1996 : (1995) 5 SCC 203 and it was held in para 48 "that the increase in the amount awarded by way of compensation keeping in view the potentiality of the land and further increase on future potentiality would be contrary to the provisions of Clauses "fifthly and sixthly" of Section 24 of the Act. The provisions of the Act require the Court to take into consideration various other factors including increase in the value of the acquired land likely to accrue from the use for which it was acquired may be put to on a subsequent stage in regard to layout or important scheme etc." Admittedly, in the instant case, the appellant's land was used for agriculture purpose and he has not applied for non-agricultural use or for laying out plots. In such circumstances, merely because other nearby lands are used non-agricultural purposes or after acquisition, appellant's land was to be used for non-agricultural purposes, the compensation cannot be granted at the commercial rate.

15. As a result, the appeal is allowed partly to the extent that the compensation is awarded at the rate of Rs. 30,000/- per hectare for non-irrigated land and Rs. 45,000/- per hectare for irrigated land. To this limited extent only, the impugned judgment and order of the Reference Court is modified.

16. The appeal stands disposed of in above term.


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