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Bombay High Court · body

2011 DIGILAW 89 (BOM)

State of Maharashtra v. Kashiram Nathu Mohite

2011-01-21

K.K.TATED

body2011
JUDGMENT : 1. Heard the learned counsel for the parties. 2. This Appeal is preferred by original respondents State of Maharashtra against the judgment and award dated 6.1.90 passed by Civil Judge, Senior Division, Raigad at Alibag in L.A.R. No.9 of 1984. 3. Cross objections were preferred by original claimants claiming enhanced compensation in respect of acquired land at the rate of Rs.500/- per Are. 4. A few facts of the matter are as under: 5. Special Land Acquisition Officer issued notification under section 4 of the Land Acquisition Act, 1894 (said Act) dated 12.10.78 for acquiring respondents original claimants land from Village Boris Taluka Alibag, District Raigad for gas based fertilizer plant at Thal to be set up by Rashtriya Chemicals and Fertilizers Ltd., Bombay. 6. Thereafter, Special Land Acquisition Officer issued Notification under section 6 of the said Act dated 4.11.78. After following due process of law Special Land Acquisition Officer declared award dated 9.3.81 awarding compensation in respect of acquired land in the sums of Rs.19,258, towards crops, trees etc. Rs. 36,156/-, well and construction Rs.19,239/-, solatium Rs.2,888.70 and interest Rs. 2150.48. In all, the Special Land Acquisition Officer awarded Rs.79,692.18 which per acre comes to Rs.4000/-. Being aggrieved by the award dated 9.3.1981 passed by Special Land Acquisition Officer, the respondents original claimants preferred reference under section 18 of the Land Acquisition Act, and claimed compensation in respect of acquired land @ Rs.50,000/-per Hector. 7. After hearing both the sides, the reference court by its judgment and award dated 6.1.90 awarded compensation in respect of acquired land at the rate of Rs. 357 per Are. 8. Heard both the counsel at length. Perused the records and proceeding of the matter. 9. The learned A.G.P. appearing on behalf of the appellant submits that the reference court erred in coming to the conclusion that the respondents original claimants filed reference application under section 18 of the Land Acquisition Act was within time. She submits that Special Land Acquisition Officer passed award on 9.3.81 and the respondents original claimants filed reference under section 18 of the Land Acquisition Act on 24.1.84 that is beyond the period of limitation. 10. She submits that Special Land Acquisition Officer passed award on 9.3.81 and the respondents original claimants filed reference under section 18 of the Land Acquisition Act on 24.1.84 that is beyond the period of limitation. 10. The learned A.G.P. appearing on behalf of applicant submits that the reference court ought to have held that the respondents original claimants failed to claim any compensation pursuant to the notice under section 9 of the Land Acquisition Act and therefore, bar under unamended section 25 of the Land Acquisition Act, comes into operation. She submits that they have specifically stated in their written statement that the respondent original claimant failed to reply to the notice under section 9 issued by the Land Acquisition Act and therefore, bar under unamended section 25 of the Land Acquisition Act is applicable. 11. The learned counsel for the appellants submits that the respondents original claimants failed to produce any cogent evidence on record to show that they are entitled to enhanced compensation in respect of acquired land. She submits that not a single sale deed is produced by respondents original claimants to support their case for enhanced compensation. She further submits that the reference court erred in relying on the evidence of expert Mr.Jeevan Narayan Kulkarni. for coming to the conclusion that respondents original claimants are entitled to enhanced compensation in respect of acquired land at the rate of Rs. 357/-per Are. On the basis of these submissions, the learned A.G.P. submits that the judgment and award passed by reference court is liable to be set aside. 12. The learned counsel for respondents original claimants and appellants in cross objection submits that the reference court erred in coming to the conclusion that the claimants are not entitled to enhanced compensation in respect of acquired land at the rate of Rs.500/- per Are. He submits that though they produced cogent evidence on record through the expert Mr.Jeevan Kulkarni, reference court awarded compensation only at the rate of Rs.357 per Are. 13. He submits that the expert in his evidence at Ex.18 as well as in report at Ex.20 categorically stated that the lands are approachable by a village road leading towards village Boris branching from Alibag-Revas State Highway. He further stated that the nearest market for village Boris was Village Thal, because it is adjacent to the said village Boris. 14. He submits that the expert in his evidence at Ex.18 as well as in report at Ex.20 categorically stated that the lands are approachable by a village road leading towards village Boris branching from Alibag-Revas State Highway. He further stated that the nearest market for village Boris was Village Thal, because it is adjacent to the said village Boris. 14. The learned counsel for the respondents submits that reference application filed by them was within period of limitation. He submits that the Special Land Acquisition Officer passed award on 9.3.81. They learnt about the award when they received Special Land Acquisition Officer s reply to their ’ letter dt.26.12.83. He submits that the acquiring body took possession before passing award by the Law Officer and they made payments on 7.6.79. He further submits that no one entered into witness box on behalf of the appellant to show that they issued notice under section 12(2) of the Land Acquisition Act and the same was duly served on them. 15. In view of these facts, the learned counsel for the respondents submits that filing of the reference under section 18 of the Land Acquisition Act on 24.1.1984 from the date of knowledge was within period of limitation. In support of his submissions he relied on the judgment in the matter of Bhagwan Das and Ors. vs. State of U.P and Ors. Reported in AIR 2010 Supreme Court 1532. In this case, the Apex Court held that the application for reference is to be filed within the prescribed limitation period computed from the date when the claimants became aware of the contents of the award and / or knowledge of the award. Para 11 and 13 of the said judgment reads as under: 11. When a land is acquired and an award is made “under section 11 of the Act, the Collector becomes entitled to take possession of the acquired land. The award being only an offer on behalf of the Government, there is always a tendency on the part of the Collector to be conservative in making the award, which results in less than the market value being offered. Invariably the land loser is required to make an application under section 18 of the Act to get the market value as compensation. The land loser does not get a right to seek reference to the civil court unless the award is made. Invariably the land loser is required to make an application under section 18 of the Act to get the market value as compensation. The land loser does not get a right to seek reference to the civil court unless the award is made. This means that he can make an application seeking reference only when he knows that an award has been made. If the words six months from the `date of the Collector's award' should be literally interpreted as referring to the date of the award and not the date of knowledge of the award, it will lead to unjust and absurd results. For example, the Collector may choose to make an award but not to issue any notice under section 12(2) of the Act, either due to negligence or oversight or due to any ulterior reasons. Or he may send a notice but may not bother to ensure that it is served on the land owner as required under section 45 of the Act. If the words `date of the Collector's award' are literally interpreted, the effect would be that on the expiry of six months from the date of award, even though the claimant had no notice of the award, he would lose the right to seek a reference. That will lead to arbitrary and unreasonable discrimination between those who are notified of the award and those who are not notified of the award. Unless the procedure under the Act is fair, reasonable and nondiscriminatory, it will run the risk of being branded as being violative of Article 14 as also Article 300A of the Constitution of India. To avoid such consequences, the words `date of the collector's award' occurring in proviso (b) to section 18 requires to be read as referring to the date of knowledge of the essential contents of the award, and not the actual date of the Collector's award. 13. When a person interested makes an application for reference seeking the benefit of six months period from the date of knowledge, the initial onus is on him to prove that he (or his representative) was not present when the award was made, that he did not receive any notice under Section 12(2) of the Act, and that he did not have the knowledge of the contents of the award during a period of six months prior to the filing the application for reference. This onus is discharged by asserting these facts on oath. He is not expected to prove the negative. Once the initial onus is discharged by the claimant/person interested, it is for the Land Acquisition Collector to establish that the person interested was present either in person or through his representative when the award was made, or that he had received a notice under Section 12(2) of the Act, or that he had knowledge of the contents of the award. Actual or constructive knowledge of the contents of the award can be established by the Collector by proving that the person interested had received or drawn the compensation amount for the acquired land, or had attested the Mahazar/ Panchnama/proceedings delivering possession of the acquired land in pursuance of the acquisition, or had filed a case challenging the award or had acknowledged the making of the award in any document or in statement on oath or evidence. The person interested, not being in possession of the acquired land and the name of the state or its transferee being entered in the revenue municipal records coupled with delay, can also lead to an inference of constructive knowledge. In the absence of any such evidence by the Collector, the claim of the person interested that he did not have knowledge earlier will be accepted, unless there are compelling circumstances to not to do so. Re : Question (d)” 16. He further submits that the reference court erred in coming to the conclusion that the claimant failed to produce any cogent evidence to claim enhanced compensation in respect of acquired property i.e. house. The learned counsel further submits that reference court has not awarded interest as per section 28 of the Land Acquisition Act. 17. On the aforesaid submissions the above mentioned facts and circumstances, the learned counsel for the respondents original claimants submits that they are entitled to compensation in respect of acquired land at the rate of Rs.500 per Are i.e. Rs.50,000/-per Hector and they are also entitled to enhanced compensation in respect of the house property. 18. The first submission made by the learned A.G.P. is that the reference was not made within the prescribed limitation. The respondent original claimants case was that for want of notice under section 12(2) of the Land Acquisition Act, they had no knowledge when the award was passed by the Land Acquisition Officer. 18. The first submission made by the learned A.G.P. is that the reference was not made within the prescribed limitation. The respondent original claimants case was that for want of notice under section 12(2) of the Land Acquisition Act, they had no knowledge when the award was passed by the Land Acquisition Officer. They specifically stated in their reference under section 18 of the Land Acquisition Act that in the month of December 1983 they learnt about passing of award by Land Acquisition Officer and therefore, they issued legal notice through their advocate on 26.12.83 calling upon Special Land Acquisition Officer to inform the date of award, contents of award etc. 19. The Special Land Acquisition Officer by their letter dt.16.1.84 Ex.12 informed the respondents original claimants that they were entitled to sum of Rs.89,257.50 towards the acquired land. In this letter, the Special Land Acquisition Officer failed to disclose date of award and date of notice under section 12(2) of the Land Acquisition Act. 20. After getting letter dt.16.1.84 from the Special Land Acquisition Officer, the respondents original claimants filed reference under section 18 of the Land Acquisition Act on 24.1.84. Therefore, the reference application filed by respondents original claimants was within the period of limitation from the date of knowledge of award. The Apex Court in the matter of Bhagwan Das and Ors (Supra) held that when the person interested makes an application for reference seeking the benefit of 6 months period from the date of knowledge, initially the onus is on him to prove that he or his representative was not present when the award was made, that he did not receive any notice under section 12(2) of the Act and that he did not have the knowledge of the contents of the award within the period of 6 months prior to the filing the application for reference. 21. In the present case, it is crystal clear from record and proceedings that neither the respondents were present before the Special Land Acquisition Officer when the award was passed nor notice under section 12(2) of the Land Acquisition Act, was served on them. 22. The Apex Court in the matter of Parsottambhai Maganbhai Patel and Ors. Vs. State of Gujarat and anr. reported in 2005(4) Mh.L.J. 1171 held that for filing of reference application limitation is six months from the date of knowledge of Collector’s award. 22. The Apex Court in the matter of Parsottambhai Maganbhai Patel and Ors. Vs. State of Gujarat and anr. reported in 2005(4) Mh.L.J. 1171 held that for filing of reference application limitation is six months from the date of knowledge of Collector’s award. Head note reads as under: Land Acquisition Act, 1894, Ss.18(2)(b) and 12(2) – Filing of reference application – Limitation is six months from the date of knowledge of Collector’s award – Claimants came to know about the award only when compensation was being paid to them in July, 1988 – They were not issued notice under section 12(2) of the Act – Application for reference filed under section 18 on 22.9.1988 was well within prescribed six months period of limitation. AIR 1961 SC 1500 , Rel. (Para 7) 23. Considering these facts, the submissions made by learned A.G.P. are not acceptable. For the reasons mentioned above, it must be held that the respondents filed reference under section 18 of the Land Acquisition Act within the period of limitation. 24. The second contention made by the learned A.G.P. for the appellant is that the respondents original claimants failed to adduce any cogent evidence to show that they are entitled to enhanced compensation in respect of acquired land. She further submits that the reference court erred in relying on evidence of expert who visited the acquired land in the year 1988 i.e. after 10 years from the date of notice under section 4 of the Land Acquisition Act. It is an admitted fact that the expert Jeevan N. Kulkarni visited first time the acquired land in the year 1988 but on the basis of his experience and location of the acquired land and considering the previous judgment in L.A.R. No.12 of 1982 and L.A.R No. 17 of 1982, he stated that the prevailing market rate of the acquired land as on the date of notification under section 4 of the Land Acquisition Act must be Rs.800/-per Are i.e. Rs.80,000/- per hectare. He also prepared map Ex. 19 and report Ex.20. 25. At the time of preparing Ex.20 i.e. Valuation Report valuer relied on sale instance dt.27.9.72. In that sale instance one Mhatre sold his land from S.No. 179 H.No.11 of Kihim at Rs.328/- per Are. He also relied on sale deed dt.31.12.74 for land from village Kihim. He also prepared map Ex. 19 and report Ex.20. 25. At the time of preparing Ex.20 i.e. Valuation Report valuer relied on sale instance dt.27.9.72. In that sale instance one Mhatre sold his land from S.No. 179 H.No.11 of Kihim at Rs.328/- per Are. He also relied on sale deed dt.31.12.74 for land from village Kihim. In that sale instance, the area 7 ares was sold at Rs.285.75 per Are. In another sale instance dt.1.11.1974 of 6.5 Ares, land from S.No.85 H.No.1C + 2D was sold @ Rs.2,307/- per Are. In sale deed dt.17.12.74 of 71.8 Ares from S.N.107 H.No.10 of Thal was sold for a consideration of Rs. 31,000/- at Rs.431.75 per Are. In sale deed dated 7.1.75 area of 8.48 Ares from S.No. 182B was purchased by Smt. Geeta Gangadhar Misal from village Thal at 843.88 per Are. In sale deed 3.1.75 of 12.9 Ares land was sold at the rate of Rs. 620 per Are from S.No.213/H.No.3K. 26. The valuer also relied on post notification sales that is sale deed dated 14.9.82 and 24.2.81. Considering the sale deeds and previous decision in L.A.R. from the same locality, he estimated the market value of the acquired land as on the date of issuing notification under section 4 at the rate of Rs.800/- per are. 27. The apex court in the matter of Special Land Acquisition Officer and Anr. vs. Sidappa Omanna Tumari and Ors. reported in 1995 Supp(2) Supreme Court Cases 168 held that report of expert can be considered at the time of fixing the market value of acquired land. 28. Considering the above mentioned facts and Apex Court judgment, I find that the reference court rightly considered the evidence on record including the evidence of valuer, his report and map for determining the Market value of acquired land. 29. The next contention made by learned A.G.P. is that as the respondent original claimant failed to reply the notice under section 9 of the Land Acquisition Act, bar under section 25 (unamended section) is applicable and they are not entitled to any enhanced compensation. Unamended Section 25 reads as under: "25. Rules as to amount of compensation. 29. The next contention made by learned A.G.P. is that as the respondent original claimant failed to reply the notice under section 9 of the Land Acquisition Act, bar under section 25 (unamended section) is applicable and they are not entitled to any enhanced compensation. Unamended Section 25 reads as under: "25. Rules as to amount of compensation. (1) When the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11. (2) When the applicant has refused to make such claim or has omitted without sufficient reason to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector. (3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector." 30. It is clear that from the bare reading of section 25 unamended of the Land Acquisition Act, that if a claimant failed to reply notice under section 9 then, bar under section 25 (unamended) is applicable but in the present case, in the award under section 11 of the Land Acquisition Act 1894 Special Land Acquisition Officer specifically stated that respondent pursuant to notice under section 9 of the Land Acquisition Act claimed compensation in respect of acquired land at the rate of Rs.1,25,000/-per Hectare. In view of these facts, the submission made by learned A.G.P. regarding unamended section 25 ibid is not applicable. 31. The reference court considering the previous judgments and sale deeds on record rightly held that claimants are entitled to compensation in respect of acquired land at the rate of Rs.357 per Are i.e. Rs.35,700 per Hectare. 32. In support of the cross objection preferred by respondent original claimant claiming compensation in respect of acquired land at the rate of Rs.500 per Are i.e. Rs.50,000/-per Hectare, they failed to produce any cogent evidence on record. Not only that, claimant in his deposition failed to justify the market rate of acquired land at the rate of Rs500 per Are. In support of the cross objection preferred by respondent original claimant claiming compensation in respect of acquired land at the rate of Rs.500 per Are i.e. Rs.50,000/-per Hectare, they failed to produce any cogent evidence on record. Not only that, claimant in his deposition failed to justify the market rate of acquired land at the rate of Rs500 per Are. Even considering the evidence on record of Mr.Jeevan Kulkarni and report prepared by him, I am of the opinion that respondents are not entitled to enhanced compensation over and above Rs.357 per Are because valuer relied on previous judgment in L.A.R. in which the Special Land Acquisition Officer acquired land from other villages. 33. The submission made by the learned counsel for respondent for enhanced compensation in respect of acquired house property cannot be considered because the claimant in his deposition no where explained on what ground he is entitled to enhanced compensation. Claimant failed to produce any valuation report of the acquired house property on record. Considering these facts I do not find any substance in the submission made by learned counsel for respondent for enhanced compensation in respect of house property. 34. The learned counsel appearing on behalf of respondent original claimant submitted that the reference court erred in awarding interest @ 9% p.a. from the date of possession i.e. 5.1.278 till the date of order of reference court as per section 28 of the Land Acquisition Act that is for 133 months. He submits that in view of section 28 of the Land Acquisition Act, claimants are entitled to interest @ 9% p.a. for first year and from next year, they are entitled to 15% p.a. Section 28 of the Land Acquisition Act reads as under: 28. He submits that in view of section 28 of the Land Acquisition Act, claimants are entitled to interest @ 9% p.a. for first year and from next year, they are entitled to 15% p.a. Section 28 of the Land Acquisition Act reads as under: 28. Collector may be directed to pay interest on “ excess compensation – If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of (nine per centum) per annum from the date on whch he took possession of the land to the date of payment of such excess into Court: [Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.” 35. From the bare reading of s.28 of the Land Acquisition Act, it is clear that the reference court erred in awarding interest @ 9% p.a. for entire period. Therefore respondent original claimants are entitled to interest under section 28 of the Land Acquisition Act @ 9% p.a. and for subsequent year @15% p.a. 36. In view of the above mentioned facts, following order. A) First Appeal No.355 of 1991 is dismissed. B) Cross Objections St.No.18796 of 1991 are partly allowed holding that claimants are entitled to interest under section 28 of Land Acquisition Act @ 9% p.a. for first year and for subsequent year @ 15%p.a. till the date of payment. C) No order as to costs.