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2012 DIGILAW 1125 (BOM)

M. B. Usgaonkar v. Land Acquisition Officer

2012-06-26

F.M.REIS

body2012
Judgment : Both the above appeals are taken up together for hearing and final disposal as both the appeals challenge the judgment passed by the learned Reference Court dated 30.06.2007. The parties shall be referred to in the manner they so appear in the cause title of the impugned judgment. 2. Pursuant to the notification under Section 4 of the Land Acquisition Act, 1894 ( herein after referred to as 'the said Act”) dated 27.11.1997, different portions of the land belonging to the applicant came to be acquired for improvement of a curve at Dhavshirem, in Village Panchayat of Usgao-Ganjem in Ponda Taluka. The areas acquired belonging to the applicant in respect of property surveyed under No.60/7 is 60 square metres; survey No. 202/4 is 1400 square metrs; survey No.203/1, is 135 square metres; survey No. 203/2 is 2000 square metres; survey No.204/1 is 1295 square metres and survey No.214/1 is 145 square metres. By an award passed under Section 11 of the said Act dated 10.01.2001, the Land Acquisition Officer offered compensation for the land acquired at the rate of Rs.30/-per square metre and with regard to the portion of the property surveyed under No.203/1 admeasuring an area of 135 square metres at the rate of 4.50 square metres and with regard to an area of 145 square metres in respect of property surveyed under No.214/1 at the rate of Rs.5/-per square metre. Being dissatisfied with the said amount, the appellant sought a reference under Section 18 of the said Act for enhancement of compensation and claimed compensation at the rate of Rs.300/-per square metre. The Reference Court after recording of evidence and hearing both the parties by the impugned judgment dated 30.06.2007 partly allowed the said reference and fixed the compensation for the land acquired at the rate of Rs.94/-per square metre. Being aggrieved by the said judgment, the applicant as well as the respondents have filed the present appeals. 3. Shri R. G. Ramani, learned counsel appearing for the applicant has assailed the impugned judgment on the ground that the Reference Court whilst fixing the compensation has taken the basis to arrive at such compensation on the sale deed at Exhibit 27 which is the property belonging to the applicant sold for a total consideration of rupees one crore having an area of 57,350 square metres. The learned counsel further points out that though the said land was purchased for industrial purposes, the land acquired was located in the same Village and as such, there is no error committed by the learned Reference Court to rely upon the said sale deed as a base to fix the compensation. The learned counsel further points out that the Reference Court whilst fixing the compensation and making deduction on account of dissimilarities, has assumed the rate of the land in the said sale deed at Rs.154/-per square metre when according to him, the rate works out to Rs.174/-per square metre. The learned counsel further points out that the Reference Court has erroneously deducted 35% on account of dissimilarity and after deducting such amount, the price therein fixed at the rate of Rs.174/-per square metres, the compensation ought to have been fixed at the rate of Rs.107/-per square metre. The learned counsel has taken me through the impugned judgment and pointed out that the Reference Court has erroneously fixed the compensation at the rate of Rs.94/-per square metre when such rate should have been at the rate of Rs.107/-per square metre. The learned counsel as such submits that the impugned judgment passed by the Reference Court deserves to be modified. 4. On the other hand, Shri V. Rodrigues, learned Additional Government Advocate appearing for the respondents has pointed out that the amount of compensation fixed by the Reference Court at the rate of Rs.94/-per square metre is on the higher side. The learned counsel further points out that there is no evidence adduced by the applicant to establish the comparability of the land acquired with the said sale instance. The learned counsel further points out that the Reference Court has rejected the evidence of the expert and as such there is no evidence on record to establish such comparability. The learned counsel further points out that there is no evidence adduced by the applicant to establish the comparability of the land acquired with the said sale instance. The learned counsel further points out that the Reference Court has rejected the evidence of the expert and as such there is no evidence on record to establish such comparability. The learned counsel further points out that in any event as far as area of 135 square meters in respect of the property surveyed under No.203/1 is concerned, the same was tenanted land and the area of 145 square metres in respect of property surveyed under No.214/1 is concerned, the same was a paddy field and as such, considering the classification done by the Land Acquisition Officer whilst passing the award under Section 11 of the said Act, the compensation for the said portions of the land could not be the same. The learned counsel has taken me through the impugned judgment and pointed out that the Reference Court has erroneously enhanced the compensation for all the portions of the acquired land of the applicant. The learned counsel as such submits that the appeal preferred by the respondents be allowed and the appeal preferred by the applicant be rejected. 5. After carefully considered the submissions of the learned counsels as well as gone through the material on record, the following point for determination arises in the present appeals : POINT FOR DETERMINATION Whether the Reference Court was justified to fix the compensation for the land acquired at the rate of Rs.94/-per square metre? 6. On perusal of the evidence on record as well as the impugned judgment passed by the Reference Court, it is not disputed that the Reference Court has fixed the compensation for the land acquired on the basis of a sale deed at Exhibit 27. The said sale deed land is of the land in the same Village as that of the acquired land. Both the lands are situated at Usgao Village. One of the parties to the said sale deed was AW1 himself. He has categorically stated that the land acquired is comparable to the land which was subject matter of the said sale instance. Both the lands are situated at Usgao Village. One of the parties to the said sale deed was AW1 himself. He has categorically stated that the land acquired is comparable to the land which was subject matter of the said sale instance. Apart from that, the said witness has further pointed out that in the vicinity of the land acquired, there was a school as well as a residential house located in the remaining portion of the said property. Considering the said aspect, the learned Additional Government Advocate is not justified to contend that the applicant has not produced any evidence to establish the comparability of the land acquired vis-a-vis the said sale instance. Considering the fact that there is no dispute as far as the nature of both the lands, I find that the Reference Court was justified to fix the compensation on the basis of said sale instance. However, deduction on account of dissimilarities no doubt are to be made. The learned Reference Court whilst passing the impugned judgment effected 30% deduction on account of the fact that the land acquired was adjoining the National Highway and effected 10% deduction on account of the fact that the water pipeline and electricity facilities were not available in the acquired land. Shri Ramani, learned counsel appearing for the appellant has pointed out that the deduction of 30% is on the higher side. It is not in dispute that the acquired land was part of the larger land belonging to the appellant. Considering the said aspect, it is well settled that the land which was abutting to the main road would have some restrictions to its building potentialities. Considering the said aspect, I find that the Reference Court has not committed any error to effect deduction of 30% on that count. So also deduction of 10% effected by the Reference Court as the water pipeline and electricity facilities were not available to the acquired land cannot be faulted with. But however, it is not in dispute that the sale deed plot which was the subject matter of the sale deed at Exhibit 27 was purchased for industrial purposes which by itself cannot fetch the same value as that of agricultural land having potential of being used for nonagricultural purposes. But however, it is not in dispute that the sale deed plot which was the subject matter of the sale deed at Exhibit 27 was purchased for industrial purposes which by itself cannot fetch the same value as that of agricultural land having potential of being used for nonagricultural purposes. In the present case, on perusal of the sale deed at Exhibit 27, it cannot be disputed that the land was purchased for the purpose of putting up an industry. As such, the said land was located in the vicinity of other industries including MRF. Considering the said aspect, I find that a deduction on account of such demerits would be justified. On such count taking note of the fact that the Reference Court has already effected 40% on account of the aforesaid two dissimilarities, a further deduction of 10% would be justified. The Division Bench of this Court in the judgment reported in 2009(4) AIR Bom. R 249 in the case of BalaAtmaram Sahakari & Ors., V/s Deputy Collector & S.D.O., Ponda Sub-Division Ponda Goa & Anr., has held at para 10 thus: “10. Considering the disadvantages the acquired land had in comparison to the land of sale deed Exhibit 19 including that the acquired land was within set back area of the National Highway on which no construction could be carried out, and taking overall view of the matter, in our view the deduction made and on the basis of that, the compensation fixed, to the acquired land at the rate of Rs.143/-per square metre cannot be faulted. We are, therefore, not inclined to interfere with the award of the learned reference Court and, therefore, proceed to dismiss the appeal but with no order as to costs.” Considering the said judgment, the deduction of 50% on account of dissimilarities is justified. 7. Shri Ramani, learned counsel appearing for the appellant is justified to contend that the price of the sale deed plot is at the rate of Rs.174/-per square metres and not Rs.154/-per square metre as calculated by the Reference Court. Considering the said aspect, after deducting the said 50% for the reasons stated herein above, the amount of compensation fixed by the learned Reference Court at the rate of Rs.94/-per square metre is fair and just. Considering the said aspect, after deducting the said 50% for the reasons stated herein above, the amount of compensation fixed by the learned Reference Court at the rate of Rs.94/-per square metre is fair and just. I find that it cannot be said that the amount fixed by the learned Reference Court is unreasonable or on the higher side. As such, I find that the compensation fixed by the learned Reference Court at the rate of Rs.94/-per square metre in respect of the land acquired belonging to the appellant does not call for interference except the land which was tenanted and the paddy field portion as pointed out by the learned Additional Government Advocate appearing for the respondents. It is not in dispute that the land admeasuring an area of 135 square metres from the property surveyed under No.203/1 was tenanted land. It is also not in dispute that the area of 145 square metres from the property surveyed under no.214/1 is a paddy field portion. Considering the said aspect, and taking note of the fact that the tenanted land cannot be used for nonagricultural purpose, I find that 50% deduction on such count in respect of the said land is justified. Hence, as far as the two portions of the land surveyed under Nos.203/1 and 214/1 are concerned, the compensation is fixed at the rate of Rs.47/-per square metre. To that extent, the impugned judgment deserves to be modified. The point for determination is answered accordingly. 8. In view of the above, I pass the following: ORDER (i) The appeals are partly allowed. (ii) The impugned judgment dated 30.06.2007 passed by the learned Reference Court stands modified to the extent that the compensation of the land acquired in respect of the property surveyed under Nos.203/1 and 214/1 is fixed @ Rs.47/-per square metre. The remaining part of the judgment stand confirmed. (iii) The appeals stand disposed of accordingly with no order as to costs.