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2014 DIGILAW 2319 (BOM)

Suresh R. Morajkar v. Deputy Collector & S. D. O.

2014-11-21

U.V.BAKRE

body2014
Judgment 1. Heard learned Counsel for the parties. 2. Both the above appeals shall be disposed of by this common Judgment since both arises out of the same Judgment and Award dated 03/07/2006 passed by the learned District Judge, Panaji (Reference Court, for short) in Land Acquisition Case No. 75 of 2002. The appellant of First Appeal No. 292 of 2006 who is the respondent in First Appeal No. 294 of 2006 was the applicant in the said L.A.C. No. 75 of 2002 whereas the respondents of First Appeal No. 292 of 2006 who are the appellants in First Appeal No. 294 of 2006 were the respondents in the said case. Parties shall herein after be referred to as per their status in the said Land Acquisition Case. 3. Vide notification dated 08/01/1991 issued under Section 4(1) of the Land Acquisition Act, 1894 (L. A. Act, for short) and published in the Official Gazette dated 25/01/1991, the Government had acquired land for the purpose of widening of two lanes and improvement of Geometrics between km. 116/00 to 121/950 on NH 4 A. This acquisition included portion of the land admeasuring 1279 square meters from survey no. 94/4 (area of 1164 square meters was cashew grove and remaining 115 square meters was road) and a portion of land admeasuring 1638 square meters from survey no. 107/3 of village Khandepar, Ponda. By award dated 15/03/1994, the Land Acquisition Officer (L.A.O., for short) awarded compensation at the rate of Rs. 5/- per square meter in respect of the road area acquired from survey no. 94/4 and at the rate of Rs. 8/- per square meter in respect of the cashew portions acquired from survey nos. 94/4 107/3. Not being satisfied with the offer made by the learned L.A.O., the applicant made an application under Section 18 of the L. A. Act before the L.A.O. who made the reference which gave rise to the Land Acquisition Case No. 18/1999. The applicant claimed compensation at the rate of Rs. 750/- per square meter. 4. Accordingly, an issue was framed as per the claim of the applicant. The applicant examined himself as AW1 and Shri S.S. Sukhathankar, Government Approved Valuer as AW2. The respondents examined the Assistant Engineer Works Division XV, Sub- Division I, PWD, namely Vijay Mardolkar as RW1. The applicant had produced various documents. 5. 750/- per square meter. 4. Accordingly, an issue was framed as per the claim of the applicant. The applicant examined himself as AW1 and Shri S.S. Sukhathankar, Government Approved Valuer as AW2. The respondents examined the Assistant Engineer Works Division XV, Sub- Division I, PWD, namely Vijay Mardolkar as RW1. The applicant had produced various documents. 5. Upon consideration of the entire evidence on record, the learned Reference Court found that the applicant had produced the sale deed dated 03/02/1982 at Exhibit 14 by which the applicant had purchased the property from which the land was acquired. The applicant had purchased the land at the rate of Rs. 4/- per square meter only. The learned Reference Court found that the acquired land comprised of cashew and coconut trees and was undeveloped agricultural land abutting to the national highway. The Reference Court found that the sale deed dated 14/06/1991 at exhibit 11 and sale deed dated 19/09/1991 at Exhibit 12 were in respect of developed plots which were not situated in the close vicinity of the acquired land and there was no evidence to show the similarity between the acquired land and the sale deed plots. The Reference Court therefore held that the said sale deeds at Exhibits 11 and 12 could not be considered as comparable instances. The Reference Court further found that the sale deed dated 23/05/1996 at Exhibit 13 was post notification transaction which was executed about years after the date of the notification and there was no evidence on record to indicate that there was no escalation of price from the date of the notification to the date of the said transaction. The Reference Court further found that there was also no evidence to show that the nature of the acquired land was similar to the plot of said sale deed. Hence, the said sale deed dated 23/05/1996 at Exhibit 13 was also discarded. According to the Reference Court, only the sale deed dated 03/02/1982 at Exhibit 14 could be considered. Since the said sale deed was dated 03/02/1982, escalation at the rate of 20% per annum was given to the price of Rs. 4/- per square meter and market rate of acquired land was worked out to Rs. 12/- per square meter. The applicant was held to be entitled to all the statutory benefits. 6. Since the said sale deed was dated 03/02/1982, escalation at the rate of 20% per annum was given to the price of Rs. 4/- per square meter and market rate of acquired land was worked out to Rs. 12/- per square meter. The applicant was held to be entitled to all the statutory benefits. 6. Aggrieved by the impugned judgment and award, the applicant has filed the First Appeal No. 292 of 2006 praying therein to enhance the compensation at least to Rs. 125/- per square meter whereas the respondents have filed the First Appeal No. 294 of 2006 praying therein to quash and set aside the impugned judgment and award. 7. Mr. Padiyar, learned Counsel for the applicant, submitted that the applicant had produced his own sale deed only to prove his title and not for the purpose of determination of market value of the acquired land. He submitted that the said sale deed of the applicant was about 8 years prior to the publication of the notification under Section 4 of the L.A. Act and hence the same was not in close proximity with the date of notification and hence could not have been considered by the Reference Court. In this regard he relied upon following judgments :- (i) “Manipur Tea Co. Pvt. Ltd. V/s. Collector of Hailakanda” reported in (1997) 9 SCC 673 and (ii) “Collector of Panchmahals V/s. Desai Keshavlal Panalal” reported in 1968 Law Suit (Guj) 64. Learned Counsel for the applicant further submitted that in Land Acquisition Case no. 19/1999 which pertained to the acquisition under the same notification, land which was adjacent to the acquired land of the applicant, was concerned. He submitted that in the said Land Acquisition Case No. 19/1999, the Reference Court had fixed the market value at the rate of Rs. 121/- per square meter. The respondents therein had filed First Appeal No. 131 of 2002 whereas the applicants therein had filed Cross Objection no. (STA) 1548 of 2003 and this Court vide judgment dated 04/07/2014 fixed the market value of the said acquired land at Rs. 106/- per square meter. He submitted that the land concerned in the said Land Acquisition Case No. 19/1999 and in the present case are similar to each other. He, therefore, urged that the market value of the acquired land be enhanced accordingly. 106/- per square meter. He submitted that the land concerned in the said Land Acquisition Case No. 19/1999 and in the present case are similar to each other. He, therefore, urged that the market value of the acquired land be enhanced accordingly. He relied upon the Judgment of the Apex Court in the case of “K. Periasami Vs. Sub-Tehsildar (Land Acquisition)”, reported in [ (1994) 4 SCC 180 ]. In the alternative, learned Counsel submitted that the applicant be given an opportunity to produce and rely upon the said judgments and prove similarity between the lands which would be relevant for the purpose of determination of the market value of the acquired land. He submitted that inadvertently the applicant had not produced the award of the L.A.O. on record. Learned Counsel urged that the case be remanded to the Reference Court by permitting the applicant to produce the above referred judgment and award of the Reference Court as well as of this Court as also the other relevant material, for decision of the reference afresh. 8. On the other hand, Ms. Linhares, learned Additional Government Advocate for the respondents urged that the own sale deed of the applicant was the best evidence since the nature of the land was exactly the same. According to her, escalation on account of the gap between the date of the sale deed and the notification under section 4 of the L. A. Act given by the Reference Court, is on higher side. She further submitted that the acquired land was agricultural land and that some land was covered by road and the other sale deeds produced by the applicant were rightly discarded by the Reference Court. She therefore urged that the appeal filed by the applicant be rejected whereas the appeal filed by the respondents be allowed and if this Court is inclined to remand the matter back, then the respondents may also be given an opportunity to adduce further evidence, if any. 9. I have gone through the record and proceedings and considered the submissions made by the respective counsel and the Judgments relied upon by the Counsel for the applicant. 10. It is well settled position that the sale transactions which are of close proximity in time and location ought to be considered. In the case of “Manipur Tea Co. 9. I have gone through the record and proceedings and considered the submissions made by the respective counsel and the Judgments relied upon by the Counsel for the applicant. 10. It is well settled position that the sale transactions which are of close proximity in time and location ought to be considered. In the case of “Manipur Tea Co. Pvt. Ltd.”(supra), the Hon'ble Supreme Court observed that the sale statistics related to sale transactions which took place 5 years prior to the date of notification published under Section 4(1) of L. A. Act and, therefore, they do not form any basis for determination of any compensation and, therefore, rejection of those sale deeds was perfectly in accordance with law. In the case of “Collector of Panchmahals” (supra), the old sale instances which were about 8 to 9 years prior to the date of notification were produced on record. The learned Division Bench of the High Court of Gujarat observed that the time factor no doubt is important and they would be inclined to think that instances of sale having taken place in 1948 and 1949 that is about 9 to 10 years ago would not ordinarily serve as good or safe guide for ascertaining the market value in 1958 unless there was evidence to show that prices had remained steady between the said sale and the date of notification. 11. In the present case, the notification under Section 4 of the L.A. Act, was published in the Official Gazette dated 25/01/1991 whereas the sale deed of the applicant was dated 03/02/1982. Hence the gap was about more than eight years. There was no evidence on record to show that the prices had remained steady between the said sale and the date of notification. The Reference Court has not explained as to why escalation of 20% per annum was given to the price of the land mentioned in the sale deed dated 03/02/1982. In the circumstances above, I am of the view that the learned Reference Court ought not to have relied upon the old sale deed of the applicant to determine the market value of the acquired land. 12. In the circumstances above, I am of the view that the learned Reference Court ought not to have relied upon the old sale deed of the applicant to determine the market value of the acquired land. 12. Be that as it may, it is now brought to the notice of this Court that in Land Acquisition Case No. 19 of 1999, the Reference Court, in respect of the acquired land, which was subject matter of the same notification, had fixed the market value at the rate of Rs. 121/- per square meter and in First Appeal no. 131 of 2002, this Court by judgment dated 14/07/2014, has reduced the said market value at the rate of Rs. 106/- per square meter. Learned Counsel for the applicant states that the said land is adjacent to the acquired land of the present case and hence similar in nature. The applicant wants to rely upon and produce the said judgments. The applicant also wants to rely upon and produce the award of L.A.O.. In the case of “K. Periasami” (supra), large extent of land was acquired by a notification under Section 4 of the L. A. Act and market value of the lands were determined by different Benches of High Court. Higher rate was awarded by High Court in respect of lands covered in the other appeals while lower rate was awarded by the Court in respect of the land of the appellant though all the lands were situated in the same area and acquired by the same notification and the appellant's land had been treated by Land acquisition Officer to be in a better advantageous position. The Hon'ble Supreme Court held that in such circumstances, the appellant is also entitled to parity of market value for the acquired land. I am of the considered view that this being the case of reference under Section 18 of the L. A. Act, in which just and reasonable market value is required to be determined, the interest of justice would require the applicant to get an opportunity to establish the just and reasonable market value of the acquired land. No prejudice would be caused to the respondent if the case is remanded to the Reference Court since opportunity can be given to them to cross-examine the applicant's witnesses and also to adduce additional evidence, if any, on their part also. 13. No prejudice would be caused to the respondent if the case is remanded to the Reference Court since opportunity can be given to them to cross-examine the applicant's witnesses and also to adduce additional evidence, if any, on their part also. 13. In the result, the following order is made: ORDER (a) The impugned judgment and order dated 03/07/2006 passed by the learned Reference Court in Land Acquisition Case No. 75 of 2002 is quashed and set aside. (b) The said Land Acquisition Case No. 75 of 2002 is restored to file of the learned District Judge, North Goa, Panaji. (c) The learned Reference Court shall permit the applicant to produce and rely upon the judgment dated 28/11/2001 passed by the additional District Judge, Panaji in Land Acquisition Case No. 19/1999 and the judgment of this Court dated 04/07/2014 in First Appeal No. 131 of 2002 and cross-objection no. (STA) 1548 of 2003 and also the award of the Land Acquisition Officer and other material, if any. (d) The learned Reference Court shall also permit the respondents to adduce further evidence in rebuttal, if any. (e) The learned Reference Court shall decide the reference afresh after considering all the material on record. (f) All the contentions of both the parties are kept open. (g) Parties to appear before the learned Reference Court on 12/01/2015 at 10.00 a.m. 14. Both the appeals are disposed of accordingly.