Sunday, 29 September 2019

Whether delay in filing of cross objection can be condoned on ground that defendant has shown willingness to waive interest?

 In the light of earlier orders passed by this Court, it is clear that claimants have withdrawn the enhanced amount of compensation in the years 2007 and 2008. The reason therefore as sought to be furnished for the cause of delay is not supported by the facts of the case. The observations of the Hon'ble Supreme Court in paragraph 26 of the decision in Lanka Venkateswarlu (supra) indicate that though there should be a liberal approach in the matter of condoning delay, in absence of any justification for the delay, the substantial law of limitation cannot be ignored while doing so. The discretion in that regard has to be exercised in systematic manner informed by reason. The aforesaid observations apply to the case on hand. The facts as mentioned in paragraph 13 of the judgment in Kawadu Narayan Tambulakar & Others (supra) indicates that it was only after filing of the private paper book that the appeal was ready for hearing. In those facts and considering the short period of delay, the same was condoned. For similar reasons, the order on C.A.O. No. 2072 of 2018 does not support the case of the claimants.

It is thus found that the reason mentioned in the civil application for the cause of delay is not supported by the facts of the case. The claimants having withdrawn the entire amount of enhanced compensation, they cannot contend that the cross-objections could not be filed because of non-availability of funds. Willingness to waive interest on the amount of compensation if enhanced cannot be a substitute for sufficient cause to condone delay.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 589/2007 and C.A.O. No. 158/2019 in Cross-objections Stamp No. 1473/2019 (13/2019)

Decided On: 23.01.2019

Bharat Sanchar Nigam Ltd. Vs. Sarojani Uttamrao Naik and Ors.

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2019(3) MHLJ 709


1. First Appeal No. 589 of 2007 has been preferred by the Acquiring Body seeking to challenge the judgment of the Reference Court in L.A.C. No. 108 of 2000 whereby the Reference Court has awarded compensation for Plot Nos. 5 to 7 and 15 to 17 from Survey No. 34 of Mouza Mahagaon, Tahsil Mahagaon, District Yavatmal at the rate of Rs. 40/- per square foot.

2. Various lands were sought to be acquired for construction of office building of the Bharat Sanchar Nigam Limited. Notification under Section 4 of the Land Acquisition Act, 1894 (for short, 'the said Act') was issued on 29.08.1996. By award dated 31.03.1998, the Land Acquisition Officer granted compensation at the rate of Rs. 23.23 Paise per square foot for land totally admeasuring 20000 square feet consisting of Plot Nos. 5 to 7 and 15 to 17. The claimants not being satisfied with the amount of compensation as awarded filed proceedings under Section 18 of the said Act. The Reference Court after considering the evidence on record enhanced the amount of compensation to Rs. 40/- per square foot. Being aggrieved by that adjudication, the present appeal has been filed. The claimants have filed C.A.O. 158 of 2019 praying for condonation of delay in filing cross-objections for challenging the judgment of the Reference Court. In the said application, it has been stated that though the claimants were represented by their counsel since October-2007 in the aforesaid appeal, the cross-objections could not be filed due to non-availability of funds. After making that arrangement, the cross-objections came to be filed on 21.01.2019.

3. Shri S.S. Bhalerao, learned counsel for the appellant in support of the appeal submitted that enhancement in the amount of compensation as awarded by the Reference Court was without appreciating the evidence on record. It is submitted that there were various sale instances on record out of which only the sale instances at Exhibits 64, 65 and 76 pertained to the period prior to issuance of the notification under Section 4 of the said Act. Most of the other sale instances were after issuance of the notification under Section 4 of the said Act. The Reference Court despite noticing that the maximum sale price of plots in the year 1996 was at the rate of Rs. 24/- per square foot enhanced the amount of compensation to Rs. 40/- per square foot. The sale instances were of smaller pieces of land while the acquired land was admeasuring 20000 square feet. The evidence on record indicated that the acquired plots were from the residential area and were not touching the highway on the Eastern side. The evidence indicated that on the northern side of the acquired lands, there were agricultural fields. The enhancement as granted by the Reference Court was not justified in view of the nature of evidence on record. He also referred to the cross-examination of various witnesses examined by the claimants to indicate that the enhancement as granted was on a higher side. Reference as made by the Court to the sale instances at Exhibits 23, 29 and 31 did not warrant enhancement as granted. He placed reliance on the decisions in Land Acquisition Officer, Kammarapally Village, Nizamabad District, A.P. Versus Nookala Rajamallu & Others [MANU/SC/1228/2003 : (2003) 12 SCC 334] and Land Acquisition Officer & Sub-Collector, Gadwal Versus Sreelatha Bhoopal (Smt.) & Another [MANU/SC/0654/1997 : (1997) 9 SCC 628] to submit that the material on record did not support the increase in the amount of compensation as granted by the Reference Court.

4. Shri D.G. Patil, learned counsel for the claimants-respondent nos. 1 to 5 besides supporting the impugned judgment submitted that the evidence on record warranted grant of higher compensation than as granted by the Reference Court. According to him, the acquired plots were converted for non-agricultural use in the year 1972 as per the document at Exhibit 21. There were various Government Offices abutting the acquired land and the acquired plots were also near the highway. He referred to the village map at Exhibit 106 and submitted that the sale instances at Exhibits 23, 29 and 31 were rightly taken into consideration by the Reference Court.

It was then submitted that the delay in filing the cross-objections deserves to be condoned for the reasons mentioned in the civil application. It was stated in the said application that though the claimants were served and represented by their counsel since October-2007, the cross-objections could not be filed because of non-availability of funds. The cross-objectors were willing to give up claim for interest for the amount of compensation if enhanced. The learned counsel referred to the decision in V.I.D.C. through Executive Engineer, Minor Irrigation Works, Wardha Versus Kawadu Narayan Tandulakar & Others [MANU/MH/2447/2017 : 2017 (6) Mh.L.J. 780] as well as the order passed on C.A.O. 2072 of 2018 (Ashok Panjabrao Pise & Others Versus Executive Engineer & Others) condoning the delay in filing the cross-objections. According to him, in the facts of the case, the delay as caused deserves to be condoned.

5. The prayer for condonation of delay is opposed by Shri S.S. Bhalerao, learned counsel for the appellant by submitting that the claimants were represented by their counsel since October-2007 and by order dated 01.11.2007 they were permitted to withdraw 50% of the amount of compensation. Thereafter, on 11.03.2008, the remaining amount of compensation was also withdrawn by the claimants by furnishing solvent surety. He thus submitted that the reason mentioned in the application with regard to non-availability of funds cannot be accepted as the entire amount of compensation as granted by the Reference Court has been withdrawn by the claimants. He placed reliance on the decision in Lanka Venkateswarlu (Dead) by LR's Versus State of A.P. & Others [MANU/SC/0153/2011 : 2011 (4) Mh.L.J. 104] and submitted that the civil application deserves to be dismissed.

6. In the light of aforesaid submissions, the following points arise for determination:-

(i) Whether the appellant has proved that the claimants have been granted higher compensation by the Reference Court?

(ii) Whether the delay in filing the cross-objections is liable to be condoned?

(iii) If Point No. (ii) is answered in affirmative, whether the claimants are entitled for enhancement in the amount of compensation?

7. I have heard the learned counsel for the parties at length and I have also perused the records of the case. Since the claimants have filed cross-objections along with a prayer for condonation of delay, Point No. (ii) is taken up first for consideration. The First Appeal was admitted by this Court on 14.08.2007. After the claimants were served, they moved Civil Application No. 7863 of 2007 for permission to withdraw the amount of compensation. By order dated 01.11.2007, the claimants were permitted to withdraw part of the amount of compensation as deposited. Thereafter, by order dated 11.03.2008, an amount of Rs. 16,33,036/- was permitted to be withdrawn subject to furnishing solvent surety. When the appeal came up for hearing on 18.01.2019, time was sought by the claimants to file cross-objections. Same have been filed on 21.01.2019. In paragraph 3 of the civil application, the only reason given is with regard to non-availability of funds for filing the cross-objections. In the light of earlier orders passed by this Court, it is clear that claimants have withdrawn the enhanced amount of compensation in the years 2007 and 2008. The reason therefore as sought to be furnished for the cause of delay is not supported by the facts of the case. The observations of the Hon'ble Supreme Court in paragraph 26 of the decision in Lanka Venkateswarlu (supra) indicate that though there should be a liberal approach in the matter of condoning delay, in absence of any justification for the delay, the substantial law of limitation cannot be ignored while doing so. The discretion in that regard has to be exercised in systematic manner informed by reason. The aforesaid observations apply to the case on hand. The facts as mentioned in paragraph 13 of the judgment in Kawadu Narayan Tambulakar & Others (supra) indicates that it was only after filing of the private paper book that the appeal was ready for hearing. In those facts and considering the short period of delay, the same was condoned. For similar reasons, the order on C.A.O. No. 2072 of 2018 does not support the case of the claimants.

It is thus found that the reason mentioned in the civil application for the cause of delay is not supported by the facts of the case. The claimants having withdrawn the entire amount of enhanced compensation, they cannot contend that the cross-objections could not be filed because of non-availability of funds. Willingness to waive interest on the amount of compensation if enhanced cannot be a substitute for sufficient cause to condone delay. C.A.O. No. 158 of 2019 is thus dismissed and the delay in filing the cross-objections is not liable to be condoned. Point No. (ii) is answered accordingly. Point No. (iii) therefore does not survive for consideration.

8. It may be stated that the Reference Court had initially decided the reference proceedings by its judgment dated 06.10.2003. In those proceedings, the Acquiring Body had not been impleaded. The Acquiring Body had filed First Appeal No. 226 of 2004 and this Court by its judgment dated 06.10.2005 set aside the judgment of the Reference Court and remanded the proceedings to the Reference Court for fresh adjudication after impleading the Acquiring Body. Liberty was granted to the parties to lead additional evidence. The witnesses already examined were permitted to be cross-examined by the Acquiring Body.

In support of the claim for enhancement, the legal heirs of the original claimant were examined. At Exhibit 19, claimant no. 2 was examined on behalf of all the legal heirs. He deposed that the acquired plots were situated in the heart of Mahagaon on the Nagpur-Hyderabad National Highway. The bus stand was at a distance of 500 feet while the Tahsil Office was at the distance of 550 feet. The Court campus was at a distance of 300 feet while the Panchayat Samiti was at a distance of 600 feet. He stated that Mahagaon was a Tahsil place having various Office and Banks. He referred to the sale instance dated 17.04.1995 wherein a plot admeasuring 1500 square feet was sold for Rs. 1,70,000/-. It was at Exhibit 23. In his cross-examination, he admitted that he had not produced any map to show location of his plots and the adjoining area. He admitted that there was no State Transport bus depot at Mahagaon. Till 1996, he had not sold any of the plots from the layout. In further cross-examination, he stated that out of the eight plots that were purchased by his father, six were acquired in the acquisition proceedings. The other two plots being Plot Nos. 3 and 4 were sold but he was not in possession of the copies of the sale-deeds. He admitted that from Plot no. 3, land admeasuring 1250 square feet was sold on 05.06.2000 for Rs. 60,000/-. The sale extract was at Exhibit 62. He identified various photographs of the building on which the Office of the appellant was built. Same were at Exhibits 78 to 87. He further admitted that the sale transactions as shown in Exhibits 23, 29 and 31 were of lands in the new city and in the residential area. He also admitted that the distances mentioned by him with regard to various Offices were approximate.

9. Claimants then examined another son of the land owner at Exhibit 27. In his cross-examination he admitted that the remaining two plots which were not acquired were sold as they were not adjoining the highway. To the north of the B.S.N.L. building, there were agricultural lands. On its western side, there was open area of a Ginning and Pressing Society while on the southern side, some houses were constructed.

Another witness examined below Exhibit 28 is the owner of Plot No. 19 admeasuring 500 square feet. He stated that he had obtained a loan of Rs. 70,000/- from the State Bank of India in 1996 by executing a mortgage-deed. The same was at Exhibit 29 and according to him, the State Bank of India had valued the same at Rs. 1,40,000/-. He admitted that he had mortgaged the plot as well as the house constructed thereon and that the plot had been purchased for Rs. 40,000/- in the year 1994. In his cross-examination, he admitted that the loan disbursed by the Bank was Rs. 70,000/- for undertaking construction work.

The vendor of Plot no. 1 from Survey No. 35/2 was examined below Exhibit 30. He stated that in the year 1992, he had sold area admeasuring 825 square feet for a consideration of Rs. 61,000/- and the sale-deed was at Exhibit 31. In his cross-examination, he admitted that his plot was near the new bus-Stand. It was in a commercial area and he had sold the plot in pieces.

The owner of Plot No. 12 was examined below Exhibit 32. He stated that the said plot admeasuring 1500 square feet with an old house was sold in the year 1995 for Rs. 1,70,000/-. The index copy was at Exhibit 23. He admitted that the acquired plots were from the residential area.

10. The aforesaid is the evidence led by the claimants for seeking enhancement in the amount of compensation. After considering this evidence on record, the learned Judge of the Reference Court in paragraph 26 of its judgment has referred to the maximum sale price of lands from the years 1996 to the year 2002. Paragraph 26 reads as under:-

"26. From the above sale deeds of the plots from Sr. No. 33 & 34 it is clear that the small pieces of the original big plot were sold by the owners according to the demand by the purchasers. The maximum sale price for the years 1996 to 2002 was as under:-



Thereafter in paragraph 32 of the judgment after referring to all the sale instances on record, it was observed that when the sale instances from Survey No. 34 were available, they could be taken into consideration in preference to the sale transaction at Exhibit 23, the mortgage-deed at Exhibit 29 and the sale transaction at Exhibit 31 as these plots were away from Survey No. 34. It is then observed that the subsequent sale transactions from Survey No. 34 at Exhibits 104 and 105 made in the year 2002 could not be considered as useful for determining the market price of the acquired plots in 1996. However, in paragraph 34 of its judgment, it was concluded that though the sale-deed at Exhibit 31 from Survey No. 35/2 was in respect of commercial purposes, it could be taken into consideration for determining the fair compensation. After referring to the sale of Plot No. 3 on 18.06.2002 at the rate of Rs. 55/- per square foot at Exhibits 104 and 105, the Reference Court found that an amount of Rs. 40/- per square foot would be adequate compensation for the acquired lands.

11. It can thus be seen that after having found that the maximum sale price of plots from Survey Nos. 33 and 34 in the year 1996 was Rs. 24/- per square foot and after observing that the sale instance at Exhibits 23, 29 and 31 could not be preferred as they were away from Survey No. 34 as well as the fact that the sale transactions of the year 2002 at Exhibits 104 and 105 were not useful sale instances, ultimately by taking the same sale instances into consideration, an amount of Rs. 40/- per square foot has been adjudicated as the market value and enhanced compensation has been granted.

12. Various sale instances were placed on record by the claimants. These sale instances were for the period from 10.06.1992 to 18.06.2002. The notification under Section 4 of the said Act is dated 29.08.1996. The sale instance at Exhibit 64 is dated 06.01.1996 and it pertains to an area admeasuring 1000 square feet from Survey No. 34/1. The rate per square foot is Rs. 20/-. At Exhibit 66 is the transaction dated 26.02.1996 with regard to land admeasuring 1672 square feet from Survey Nos. 33 and 34 at the rate of Rs. 21/- per square foot. At Exhibit 65 is another sale instance also from Survey No. 34 dated 28.02.1996. The transaction is in respect of area admeasuring 1350 square feet at the rate of Rs. 24/- per square foot. At Exhibit 60 is the transaction dated 04.06.1996 pertaining to land admeasuring 1744 square feet from Survey Nos. 33 and 34. The rate therein is Rs. 23/- per square foot. Even after issuance of notification under Section 4 of the said Act, the transaction dated 13.12.1996 at Exhibit 63 in respect of land admeasuring 1600 square feet from Survey No. 34/1 is at the rate of Rs. 24/- per square foot. Though there are subsequent sale instances after issuance of notification under Section 4 of the said Act, considering the fact that the aforesaid sale instances shortly prior to issuance of that notification being available on record, the subsequent sale instances can act as a guide for determining the reasonable market value. It can thus be seen that in the year 1996 the average rate of land in Survey No. 34 per square foot was Rs. 24/- and even the Reference Court has recorded a finding to that effect in paragraph 26 of its judgment. The other evidence on record is the document at Exhibit 21 which pertains to conversion of the agricultural field for residential use which thereafter was numbered as Survey No. 34. It is not in dispute that the land acquired forms part of the residential layout. The only map available on record is the one at Exhibit 106 that has been filed by the Acquiring Body. The claimants in their deposition have not referred to any location map nor have they been able to substantiate their stand that various civic amenities were available in the nearby vicinity. It is also relevant to note that though Plot Nos. 3 and 4 from Survey No. 34 were sold by the claimants, the sale-deeds in that regard were not brought on record. Considering the aforesaid documentary evidence on record it can be said that the transactions subsequent to issuance of the notification under Section 4 of the said Act would merely indicate a rising trend in the prices of the surrounding lands. In the light of the fact that sale instances prior to issuance of the notification under Section 4 of the said Act are available on record, it was not necessary for the Reference Court to have given much importance to the post notification sale instances and especially those of the year 2002 which sale instances are admittedly after a period of six years from the date of notification issued under Section 4 of the said Act. It is thus found that the Reference Court by referring to the sale instances at Exhibit 31, 104 and 105 was not justified in concluding that the market value of the acquired land was Rs. 40/- per square foot. The evidence on record has thus been misread by the Reference Court which has resulted in granting higher compensation.

13. On considering the entire evidence on record it has to be noted that there was a rising trend in the land prices from the year 1996 onwards. The entire layout was converted for residential use and civic amenities in the village were available but at some distance from the acquired lands. Taking an overall view of the matter in the light of the evidence on record including the photographs at Exhibits 78 to 88 and in view of the fact that the Acquiring Body had acquired 20000 square foot land, in my view reasonable compensation at the rate of Rs. 28/- per square foot would be just and fair compensation for the acquired lands. There is no material on record to sustain the grant of compensation at the rate of Rs. 40/- per square foot. Point No. (i) is accordingly answered by holding that the appellant has proved that the claimants have been granted higher compensation by the Reference Court. It is held that the claimants are entitled for compensation at the rate of Rs. 28/- per square foot.

14. In the light of aforesaid discussion, the following order is passed:-

I. The judgment dated 27.04.2007 in L.A.C. No. 108 of 2000 is partly modified.

II. It is held that the claimants are entitled for compensation at the rate of Rs. 28/- per square foot and not Rs. 40/- per square foot as awarded. The award is modified accordingly.

15. The First Appeal is allowed in aforesaid terms. This judgment shall come into operation after expiry of ten weeks from today. No costs.


Print Page

No comments:

Post a comment