Kamalabai Bhaskar Mule And Ors vs Special Land Acquisition Officer

,,,,,,

Anuja Prabhudessai, J",,,,,,

The Appellants have challenged the Judgment and Award dated 26.01.1987, whereby the learned Joint District Judge, Nashik has dismissed the",,,,,,

Land Reference No.169 of 1982, filed under Section 18 of the Land Acquisition Act, 1894 (for short 'the Act' ).",,,,,,

The subject matter of the reference is the land under Survey No.673 sub divisions 1 to 54 admeasuring 66 Hectares 4 Ares, at Nashik. The said",,,,,,

land shall be hereinafter referred to as the acquired land. The acquired land was originally owned by Kamalabai Bhaskar Mule, now represented by",,,,,,

her legal representatives, who shall be hereinafter referred to as the claimants,. The said land was acquired for a public purpose, namely construction",,,,,,

of School, College, Hospital Building, Staff Quarters, Playground, by the Maratha Vidya Prasarak Samaj, Nashik pursuant to Notification under",,,,,,

Section 4 (1) of the Act published in the Official Gazette dated 5.10.1972. By Award dated 20.7.1982, passed under Section 11 of the Act, the Special",,,,,,

Land Acquisition officer determined the market value of the land at the rate of Rs.60,000/- per hectare. The Land Acquisition Officer also awarded",,,,,,

compensation of Rs.24,400/- towards value of the trees and Rs.500/-towards value of the well. Being dissatisfied with the quantum of compensation",,,,,,

awarded by the Land Acquisition Officer, the claimants sought reference under Section 18(1) of the Land Acquisition Act.",,,,,,

The claim was premised on the basis that the Land Acquisition Officer has undervalued the acquired land, which is situated in a developed locality.",,,,,,

The layout in respect of the acquired land was sanctioned in the year 1966 under T.P. Scheme No.II and the acquired land was suitable for,,,,,,

construction purpose. It is the case of the claimants that the market rate of the acquired land as on the date of Section 4 notification was not less than,,,,,,

Rs.50/- per sq. meter. The Claimants have further claimed compensation of Rs.5000/- for the structure existing in the acquired land, Rs.57,000/- and",,,,,,

Rs.20,000/- towards the value of the trees and the well and Rs.2000/-towards value of the compound wall. In addition, the Claimant also sought",,,,,,

compensation of Rs.25,000/- as damages for diminishing profits of the land. The claimants relied upon sale transactions at Ex. 39, 40, 43, 50 and 52",,,,,,

and adduced oral evidence to justify their claim for enhanced compensation.,,,,,,

The Respondent No. 3 also adduced documentary and oral evidence to justify the valuation made by the Land Acquisition Officer.,,,,,,

By impugned judgment and Award dated 26.1.1987, the Reference Court dismissed the reference mainly on the ground that the sale transactions",,,,,,

relied upon by the claimants are not comparable instances. The Reference Court has observed that the sale instances are in respect of plots of land in,,,,,,

a well-developed residential locality whereas the acquired land was uneven, prone to get submerged during rains and not suitable for construction.",,,,,,

Relying upon Agreement for Sale dated 2.5.1969 in respect of the same land and sale transaction dated 16.7.1966 the Reference Court held that the,,,,,,

value of the land determined by the Land Acquisition Officer was just and reasonable. The Reference Court therefore rejected the claim for,,,,,,

enhanced compensation. Being aggrieved by this Judgment and Award, the Claimants have filed this appeal under Section 54 of the Act.",,,,,,

On 17.7.2008, in the course of the hearing, the learned Counsel for the Respondent No.3 offered to pay to the Claimants a lump sum amount of Rs.",,,,,,

55,000/- over and above the amount already paid, subject to the condition that the claimants would not claim any other statutory benefit under the Act.",,,,,,

The learned counsel for the Claimants accepted the offer. Hence, by Judgment dated 17.7.2008 the appeal came to be disposed of by consent, with",,,,,,

directions to the Respondent No.3 to pay to the claimant lump sum compensation of Rs. 55,000/ within a period of eight weeks from the date of the",,,,,,

order.,,,,,,

The claimants challenged the said judgment before the Hon'ble Supreme Court in Civil Appeal No. 8429-8430 of 2011 mainly on the ground that,,,,,,

they had not instructed their counsel to accept the offer made on behalf of Respondent no.3. By Order dated 30.9.2011, the Hon'ble Supreme Court",,,,,,

allowed the appeal, set aside the judgment dated 17.7.2008 and remitted the matter for fresh disposal after giving reasonable opportunity of hearing to",,,,,,

the parties.,,,,,,

Heard learned Counsel for the respective parties. Mr. Lagu, learned Counsel for the Claimants submits that the Acquiring Body (Respondent No.3)",,,,,,

had not filed its written statement before the Reference Court. Relying upon the decision of this Court in Central Bank of India vs. Sion Bakers and,,,,,,

Confectioners Pvt. Ltd. 2008(3) Bom. CR 553 he contends that the evidence adduced by Respondent No.3 without written statement was not,,,,,,

admissible and hence could not have been relied upon.,,,,,,

Learned Counsel for the Claimants submits that the acquired land abuts the main Gangapur Road. Furthermore, the acquired land is situated in a",,,,,,

developed locality with all infrastructural facilities available in and around the acquired land. The adjoining land was already acquired for construction,,,,,,

of educational institution. He submits that the layout plan of Survey No.673 was sanctioned in the year 1966 and that the Claimants had already,,,,,,

carved out 54 plots, which were suitable for construction purpose. He submits that the learned Judge has grossly erred in relying upon the report of",,,,,,

site inspection, which was prepared about 5 years after taking of the possession. He submits that the learned judge has grossly erred in recording a",,,,,,

finding that the major part of the acquired land is uneven, that the land is likely to be submerged in rainwater and further in holding that the acquired",,,,,,

land had no construction potentiality.,,,,,,

Learned Counsel for the claimants submits that Claimants had relied upon sale instances of the adjoining land to prove that the market rate of the,,,,,,

land was between Rs.50/- to Rs.70/- per sq.meter. It is urged that the learned Judge has totally erred in relying upon the agreement for sale while,,,,,,

rejecting sale transactions, which relate to similar plots situated in the close vicinity. The reasons spelt out for rejecting the sale instances are arbitrary",,,,,,

and patently illegal. Learned Counsel contends that the learned Judge has failed to apply the relevant criteria in determining the compensation. In,,,,,,

support of his contention, learned Counsel for the Claimants has placed reliance on the following judgments of the Apex Court in (i) Vithal Rao &",,,,,,

Anr. vs. Special Land Acquisition Officer (2017) 8 SCC 558; (ii) Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona & Anr (1988)",,,,,,

3 SCC 751; (iii) Jai Krishan vs. State of Uttarakhand & Ors. (2014) 12 SCC 164;,,,,,,

Shri Shah, learned Counsel for the acquiring body submits that the Claimants had not added Respondent No.3- acquiring body as a party to the",,,,,,

reference, though it was a proper party. He has relied upon the decisions of the Apex Court in (i) Agra Development Authority vs. Special Land",,,,,,

Acquisition Officer & Ors (2001) 2 SCC 646; (ii) Neyvely Lignite Corporation Ltd. vs. Special Tahsildar (Land Acqusition) Neyvely & Ors. (1995) 1,,,,,,

SCC 221; (iii) Krishi Upaj Mandi Samiti vs. Ashok Singhal & Ors. 1991 Supp (2) SCC 419; (iv) Neelagangabai & Anr. vs. State of Karnataka & Ors.,,,,,,

(1990) 3 SCC 617; and the judgment of this Court in Corporation of the City of Panaji vs. Deputy Collector (LA) & Land Acquisition Officer, Panaji",,,,,,

& Ors. 2014(5) Mh.L.J. 27 to contend that the acquiring body has a right to participate in proceedings under Section 18 of the Act.,,,,,,

Learned AGP as well as learned Counsel for the Acquiring Body submit that the acquired land is towards the northern side of the Gangapur Road,,,,,,

and is sandwiched between the said road and the bank of river Godavari. It is further stated that a nullah which emanates foul smell is passing through,,,,,,

the acquired land. They further submit that the sale transactions relied upon by the claimants are in respect of the plots situated towards the southern,,,,,,

side of Gangapur Road. They contend that the land towards the southern side of Gangapur Road is well developed and several buildings/ housing,,,,,,

societies have come up in the said area. Whereas the acquired land was uneven and the major part was prone to get submerged in rainwater.,,,,,,

Vehemently defending the Impugned judgment, they contend that considering the location, nature and potentiality of the acquired land, the sale Deeds",,,,,,

relied upon by the Claimants are not comparable instances and are not relevant for determining the market rate of the acquired land.,,,,,,

Learned AGP and learned counsel for Respondent No.3 submit that the agreement at Exhibit 81 amply proves that the Claimants had agreed to,,,,,,

sell one of the plots of the acquired land at the rate of Rs.6.90/- per sq. meter. Relying upon the said agreement, the Land Acquisition Officer has",,,,,,

determining the market rate of the land at the rate of Rs.6/- per sq. meter. They submit that the rate determined by the Land Acquisition Officer is,,,,,,

reasonable and adequate. They also submit that the claimants have failed to prove the value of the tress, well and the structure was more than that",,,,,,

awarded by the Land Acquisition Officer. They therefore contend that the appeal has no merits and is liable to be dismissed. Reliance has been,,,,,,

placed on the decisions of the Apex Court in (i) Land Acquisition Officer & Mandal vs. V. Narasaiah (2001) 3 SCC 530; and (ii) P. Ram Reddy &,,,,,,

Ors. vs. Land Acquisition Officer , Hyderabad & Ors. (1995) 2 SCC 305;",,,,,,

I have perused the records and considered the submissions advanced by learned Counsel for the respective parties. I shall first deal with the,,,,,,

objections raised by Shri Shah, the learned Counsel for the Respondent No.3 regarding non service of Notice under Section 50(2) of the Act.",,,,,,

It is not in dispute that acquisition was for the benefit of Respondent no.3, who was ultimately responsible for payment of compensation",,,,,,

determined by the Land Acquisition Officer or the Reference Court as the case may be. It is well settled that the Authority for whose benefit the land,,,,,,

is acquired is a person interested in the determination of proper compensation. Such interested person has right to participate in acquisition proceedings,,,,,,

before the Land Acquisition Officer as well as the Reference Court and adduce evidence to defend the Award or rebut the evidence adduced by the,,,,,,

Claimant. Such right carries with it right to be served with notice under Section 50 (2) of the Act. In this regard it would be advantageous to refer to,,,,,,

the decision of the Apex Court in Neyvely Lignite Corpn. Ltd. (supra), wherein a three Judge Bench of the Apex Court has held thus:",,,,,,

… Therefore the consistent thread that runs through all the decisions of this Court starting from Himalayan Tiles case is that the beneficiary, i.e.,",,,,,,

local authority or company, a coop. society registered under the relevant State law, or statutory authority is a person interested to determine just and",,,,,,

proper compensation for the acquired land and is an aggrieved person. It flows from it that the beneficiary has the right to be heard by the Collector or,,,,,,

the Court. If the compensation is enhanced it is entitled to canvass its correctness by filing an appeal or defend the award of the Collector. If it is not,,,,,,

made a party, it is entitled to seek leave of the court and file the appeal against the enhanced award and decree of the Civil Court under s.26 or of the",,,,,,

judgment and decree under s.54 or is entitled to file writ petition under Art.226 and assail its legality or correctness. When the award made under s. 11,,,,,,

of the Collector is vitiated by fraud, collusion or corruption, the beneficiary is entitled to challenge it in the writ petition apart from the settled law that",,,,,,

the conduct of the collector or Civil Judge is amenable to disciplinary enquiry and appropriate action.These are very valuable and salutary rights.,,,,,,

Moreover in the language of Order 1 Rule 10 CPC, in the absence of the beneficiary who ultimately is to bear the higher compensation, no complete",,,,,,

and effectual determination of binding just and proper compensation to the acquired land would be made. So it is concommitently a proper party if not,,,,,,

a necessary party to the proceedings under Order 1 Rule 10 CPC.. The denial of the right to a person interested is in negation of fair and just,,,,,,

procedure offending Art. 14 of the Constitution.,,,,,,

In the case of Smt. Kanak & Anr. v. U.P.Avas Evam Vikas Parishad And Ors. AIR 2003 SC 3894 the Apex Court has held thus:,,,,,,

It is not in doubt or dispute that no formal notice was served upon the respondent. A notice to a person, for whose benefit the land is acquired or",,,,,,

who is responsible for payment of compensation amount, was mooted before the courts of law on the construction of Section 50 of the Land",,,,,,

Acquisition Act. It was held that Sub-section (2) of Section 50 must be construed as conferring a right of no-tice to the local authority for whom at the,,,,,,

stage of deter-mination of the amount of compensation before the Col-lector as well as the - reference court. It is not in dispute that the respondent,,,,,,

was not represented even before the Collector. In the aforementioned situation, this Court in Gyan Devi (supra) held:",,,,,,

In other words the right conferred under Section 50(2) of the L.A. Act carries with it the right to be given adequate notice by the Collector as well as",,,,,,

the reference court be- fore whom the acquisition proceedings are pending of the date on which the matter of determination of the amount of,,,,,,

compensation will be taken up. Service of such a notice, being necessary for effectuating the right con-ferred on the local authority under Section",,,,,,

50(2) of the L.A. Act, can, therefore, be regarded as an Integral part of the said right and the failure to give such a notice would result in denial of the",,,,,,

said right unless it can be shown that the local authority had knowledge about the pendency of the acquisition proceedings before the Col-lector or the,,,,,,

reference court and has not suffered any prejudice on account of failure to give such notice.""",,,,,,

It is not correct to contend that by reason of non-ser-vice of notice the respondent was not prejudiced. The ex-ception carried out by this Court in,,,,,,

the matter of service notice to the local authority is not only confined to its knowledge about the pendency of the acquisition pro-ceedings before the,,,,,,

Collector or the reference court but also any prejudice on account thereof. The said two con-ditions are to be read conjunctively and not disjunctively.,,,,,,

In the instant case, it is not in dispute that the Respondent No. 3 was not served with the notice under section 50 (2) of the Act. Nevertheless,",,,,,,

Respondent No.3 appeared before the Reference Court and adduced evidence to prove that the rate offered by the Land Acquisition Officer was just,,,,,,

and reasonable. Hence no prejudice has been caused to the respondent no.3 by reason of non service of notice. It is also pertinent to note that the,,,,,,

Reference Court has dismissed the reference, which order is in favour of the respondent No.3. Having accepted the said award, the respondent no.3",,,,,,

now cannot allege that the proceedings are vitiated for non service of notice.,,,,,,

The next question is about the evidentiary value of the evidence adduced by the Respondent No.3 in the absence of the written statement. It is to,,,,,,

be noted that in the case of Central Bank (supra), this court has followed the dictum of the Apex Court in Ram Sarup Gupta (dead) by L.Rs. v/s",,,,,,

Bishun Narain Inter College and Ors. AIR 1987 SC 1242, that :",,,,,,

'In the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is equally settled that no party should be permitted to",,,,,,

travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and,,,,,,

purpose of pleading is to enable the adversary to know the case it has to meet. In order to have a fair trial it is imperative that the party should state,,,,,,

the essential material facts so that the other party may not be taken by surprise.',,,,,,

The question is whether these principles can be made applicable to the reference under section 18 of the Act. It is to be noted that section 18 (1),,,,,,

of the Act enables a person, who has not accepted the Award, to make a written application to the Collector to refer the matter to the Court when the",,,,,,

objections relate to the measurement of the land, the amount of compensation, the person to whom it is payable and the apportionment of the",,,,,,

compensation among the persons interested. Once the application meets the requirement of section 18, the Collector is enjoined to make a reference",,,,,,

to the Court with all the information in writing, as indicated in sub-section (1) of Section 19. On receipt of the reference, Section 20 enjoins the Court",,,,,,

to have notices served on the applicant and all the persons interested in the objections, as indicated in Clauses (a) to (c) of Section 20. Section 21",,,,,,

restricts the inquiry in every such proceeding to a consideration of the interest of the persons affected by the objections. Section 53 makes all the,,,,,,

provisions contained in Civil Procedure Code applicable to such proceedings so long as there is no inconsistency between the provisions of the Act and,,,,,,

the CPC.,,,,,,

A plain reading of these provisions clearly indicates that the proceedings under section 18 come within the realm of the Court only by virtue of a,,,,,,

reference made by the Collector. In the case of Rajmani vs. The Collector, Raipur (1996) 5 SCC 701, the Apex Court has observed thus:",,,,,,

It is settled law that the Statement under Section 19 in terms of the objection under Section 18 of the Act is not treated as a plaint. Upon service of",,,,,,

the notice on the claimant or interested person he is treated to be a plaintiff and Land of conducting the proceedings as envisaged under Section 22 of,,,,,,

the Act. they are entitled to be represented by counsel. On receipt of the application, it is the duty of the claimant and burden is always upon him, who",,,,,,

seeks higher compensation to adduce evidence and prove in the Court that the compensation awarded by the Collector was inadequate and that the,,,,,,

acquired lands possessed of higher value for award or the compensation to be just and adequate compensation. The Land Acquisition Officer is to,,,,,,

rebut the evidence adduced by the claimant/interested person. The burden is always on the claimant. Ultimately, it is the duty and power of the Court",,,,,,

to determine just and adequate compensation on relevant facts and law sitting in the arm chair of a prudent purchaser in an open market.,,,,,,

It is thus well settled that the objections under section 18 and the statement under section 19 cannot be treated as a plaint or suit. As a,,,,,,

consequence thereof strict rules of pleading as well as the consequences of non filing of the written statement as envisaged under Order VIII CPC,,,,,,

would not be applicable to proceedings under section 18 of the Act.. In such proceedings, wherein objections are restricted to the quantum of",,,,,,

compensation, burden is on the claimant to prove that the compensation awarded by the Collector is not reasonable and that the land possessed higher",,,,,,

value. The beneficiary of the acquisition, though not entitled to seek a reference, has right to adduce evidence, which is restricted to and relevant for",,,,,,

the purpose of determining the amount of compensation. Eventually, it is for the reference court to decide the value of the land as on the date of",,,,,,

Section 4 notification.,,,,,,

Reverting to the facts of the case, the Award indicates that vide letter dated 30.3.1976, Respondent no.3 had informed the Land Acquisition",,,,,,

Officer that the acquired land was full of thorny bushes. It was uneven and unfit for construction or cultivation. It is to be noted that being the,,,,,,

beneficiary of the acquisition, Respondent No. 3 had statutory right to participate in the proceedings before the Reference Court and lead evidence to",,,,,,

defend the Award or to rebut the evidence adduced by the Claimants. Hence it was mandatory for the Reference Court to issue notice to the,,,,,,

Respondent no.3. Despite non service of notice under Section 50(2) of the Act, Respondent No.3 participated in the proceedings. The Reference",,,,,,

Court gave an opportunity to Respondent no.3 to adduce evidence without there being any objection on the part of the claimants. The evidence,,,,,,

adduced by Respondent No. 3 was restricted to the facts relevant to determine the compensation, viz. the nature, location and potentiality and the",,,,,,

value of the land. Since the evidence adduced by Respondent No.3 was consistent with the stand taken before the Land Acquisition Officer, there",,,,,,

was no question of the Claimants being taken by surprise. The fact that the Claimants had allowed Respondent No. 3 to participate in the proceedings,,,,,,

and further to adduce evidence without demur also indicates that there was no element of surprise. Having allowed Respondent No.3 to adduce,,,,,,

evidence without protest, the Claimants cannot now complain that Respondent no.3 was not entitled to adduce evidence in the absence of the written",,,,,,

statement.,,,,,,

The next and most crucial question for determination is whether the Reference Court was justified in holding that the market rate awarded by the,,,,,,

Land Acquisition Officer was just and reasonable. Before adverting to the facts of the case it would be advantageous to consider the decision in,,,,,,

Vithal Rao & Anr. vs. The Special land Acquisition Officer (2017) 8 SCC 558, wherein the Apex Court has reiterated general principles of law on the",,,,,,

in question as under:,,,,,,

25) Before we examine the facts of this case, it is necessary to take note of general principle of law on the subject which is laid down by this Court in",,,,,,

several cases some of which were also cited at the bar by the learned counsel for the par-ties. Indeed, if we may say so, law on the several issues",,,,,,

urged herein by the learned counsel for the parties is fairly well set-tled and what has varied is its application to the facts of each case.,,,,,,

26) In Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona & Anr. (1988) 3 SCC 751, this Court dealt with the question as to how",,,,,,

the Court should determine the valuation of the lands under acquisition and what broad prin-ciple of law relating to acquisition of land under the Act,,,,,,

should be kept in consideration to determine the proper mar-ket value of the acquired land.,,,,,,

27) In Para 4 of the judgment, this Court laid down as many as 17 principles, which are reproduced below for pe-rusal:",,,,,,

“(1) to (4)………………………………….,,,,,,

(5) The market value of land under acquisition has to be de-termined as on the crucial date of publication of the notifica-tion under Section 4 of the,,,,,,

Land Acquisition Act (dates of no-tifications under Section 6 and 9 are irrelevant).,,,,,,

(6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer 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 vendor is willing to sell the land at a reasonable price.,,,,,,

(7) In doing so by the instances method, the court has to cor-relate the market value reflected in the most comparable in-stance which provides the",,,,,,

index of market value.,,,,,,

(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisi-tion of land.),,,,,,

(9) Even post-notification instances can be taken into account,,,,,,

(1) if they are very proximate, (2) genuine and (3) the acquisi-tion itself has not motivated the purchaser to pay a higher price on account of the",,,,,,

resultant improvement in development prospects.,,,,,,

(10) The most comparable instances out of the genuine in-stances have to be identified on the following considerations:,,,,,,

(i) proximity from time angle,",,,,,,

(ii) proximity from situation angle.,,,,,,

(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market,,,,,,

value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-Ã -vis 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 relevant factors may be evaluated in terms of price variation as,,,,,,

a prudent purchaser would do.,,,,,,

Sr.No 1.,"Sale Deed Exh.

No. 2.",S. No. 3.,Plot No. 4.,Area 5,"Date and

consideration 6","Rate per sq. mtr.

7

1.,50,649-A-16,3,578 sq. mtrs,"27-1-71

Rs.34,616/",Rs.50/-

2.,43,656/1/1-B,10,470 sq. mtrs,"15.2.71

Rs.28,100/",Rs.50/-

3.,40,656/1/1-B,8,472 sq. mtrs,"15.2.71

Rs.28250/",Rs.50/-

4.,43,656/1/1-B,43,549.9. sq. mtr,"25.8.72

Rs.39,466",Rs.60/

5.,52,659/1B,4,462 Sq. mtrs,"12.2.71 20,601/",Rs.44.06

enhanced compensation, towards value of the structure, trees and well, there is no evidence forthcoming in support thereof. In the absence of any",,,,,,

cogent material, there is no reason to interfere with the valuation as assessed by the Land Acquisition Officer.",,,,,,

Under the circumstances and in view of discussion supra, the appeal is partly allowed. The impugned Judgment is hereby set aside. The market",,,,,,

rate of the acquired land is fixed at Rs.10 per sq. mtr. The difference in compensation along with other statutory benefits under the Act shall be,,,,,,

deposited before the Reference Court within a period of three months from the date of the order.,,,,,,