Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 990 (BOM)

Kamgar Mahar Nandur v. State of Maharashtra

2018-04-09

B.P.COLABAWALLA, K.K.TATED

body2018
JUDGMENT : 1. Heard. By consent of the parties, the matter is taken up for final hearing at the stage of admission. 2. By this petition under Article 226 of the Constitution of India, the petitioners challenge the letters dated 20-2-2017 and 22-5-2017 issued by the Special Land Acquisition Officer No. 1, Solapur deducting 10% amount towards royalty (Najrana) from the compensation payable to the petitioner under section 28-A of the Land Acquisition Act, 1894 (said Act). 3. The learned counsel for the petitioner submits that they made Application under section 28-A of the said Act for re-determination of the amount of compensation in respect of the acquired land on the basis of the judgment in respect of the land from the same Notification under section 4 of the said Act. He submits that the said Application under section 28-A of the said Act was decided by the Special Land Acquisition Officer on 12-11-2012 and held that the petitioners are entitled to the compensation of Rs. 72,56,324/- in respect of the acquired land. Thereafter the Special Land Acquisition Officer has disbursed the said amount on 3-9-2015 however, withheld/deducted a sum of Rs. 7,25,632/- against 10% royalty payable to the Government. 4. The learned counsel for the petitioners submits that the respondent Special Land Acquisition Officer has relied upon the Government Resolution dated 11-1-2017 for deducting the 10% amount towards royalty. He submits that in view of the said deduction, the petitioners made Application dated 9-2-2017 in the office of the Special Land Acquisition Officer No. 1, Solapur stating that the deduction of 10% royalty is not according to law. He submits that the petitioner has specifically pointed out to the respondent that the Government Resolution dated 11-1-2017 is not applicable to the facts of the present case. He submits that the Award was passed in the year 2012 i.e. on 12-11-2012 and thereafter the Government Resolution was issued on 11-1-2017. He submits that the petitioner has specifically pointed out to the respondent that the effect of the Government Resolution is not retrospective, at the most it can be prospective and therefore, there is no question of deducting 10% royalty amount. He submits that the petitioner has specifically pointed out to the respondent that the effect of the Government Resolution is not retrospective, at the most it can be prospective and therefore, there is no question of deducting 10% royalty amount. He submits that in spite of clarifying all these facts, the respondents, by their letters dated 20-2-2017 and 22-5-2017 rejected the petitioners’ Application dated 9-2-2017 for refund of 10% royalty amount and also interest under section 34 of the said Act for delayed payment. Hence, the petitioners have filed the present Writ Petition. 5. The learned counsel for the petitioners submits that a Full Bench of this Court in the matter of State of Maharashtra vs. Govindrao Narayanrao Ghorpade, 1985 Mh. L.J. 170 (F.B.) held that at the most the Government can deduct only amount equivalent to 20 times of the assessment under the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955. He relies on para 13 and 14 of the said judgment which read thus: “13. It would, therefore, be necessary to estimate reduction of the market value on account of such restriction. The Supreme Court in the case of Krishna Yachendra vs. Improvement Trust Board, Bangalore, AIR 1979 SC 869 has considered how there is an element of guesswork in such valuation. The relevant head-note reads as follows: “The estimation of market value in many cases must depend largely on evaluation of many imponderables and hence it must necessarily be to some extent a matter of conjecture or guess.” The guesswork would be more when one has to value an land with restriction. The payment of twenty times the assessment is contemplated by Government orders for relaxation of the restriction if the property is an agricultural land. We do not understand these Government orders to mean that they have determined the amount by any precise or concise arithmetical calculations. However, we accept the payment of 20 times the assessment as a fair and ready measure for determining the value of an agricultural land with a restriction against the alienation. In the case of the lands used for non-agricultural purpose Government orders show that the condition can be relaxed on payment of 50% of the market value. In our opinion, this would be grossly unjust when we have to determine the market value not on a voluntary transaction but on a compulsory acquisition. In the case of the lands used for non-agricultural purpose Government orders show that the condition can be relaxed on payment of 50% of the market value. In our opinion, this would be grossly unjust when we have to determine the market value not on a voluntary transaction but on a compulsory acquisition. The prevision of the Government directions for the payment of 50% of the market value cannot, therefore, be bodily lifted and applied while determining the market value in a compulsory acquisition. In our opinion, the value of the property which is used for non-agricultural purpose on the date of the notification will have to be assessed after deducting the amount equivalent to twenty times the non-agricultural assessment that is levied or is leviable on such non- agricultural lands. We are conscious of the fact that this determination would be conjectural and involves as element of guesswork. However, as observed in the above mentioned Supreme Court cases this is rather inevitable in the absence of any other relevant and cogent better data for evaluating a property with a restrictive condition. We may add that under the Land Revenue Code separate non-agricultural assessment is levied after taking into account the market value of the property. The nonagricultural assessment does thus have some nexus with the valuation of the property. 14. The net result of this discussion would show that the market value with a restrictive clause contemplated by section 7 of the 1955 Act will have to be determined after taking into account the market value of the land which had no such restriction and thereafter deducting the amount equivalent to 20 times the assessment. The assessment would be agricultural assessment, if the land is used for agricultural purposes and if the land is used for non-agricultural purposes the assessment would be non-agricultural assessment actually levied or leviable on such nonagricultural lands. The relevant date for determining the use of the lands would be the date of the notification under section 4 of the Land Acquisition Act. The fact that authority for whose purpose the land is to be acquired is likely to use the same for non-agricultural purpose would not be relevant inasmuch as the actual nature of the user on the date of the notification is material. In view of the above discussion we record our findings as below and hold. Point No. 1 In the affirmative. In view of the above discussion we record our findings as below and hold. Point No. 1 In the affirmative. Point No. 2 In the negative. Point No. 3 As detailed in this para 14. The appeal should now be placed before the Division Bench for further hearing and decision.” 6. On the basis of this submission and the authority of the Full Bench of this Court, the learned counsel for the petitioners submits that the action/decision taken by the respondent of deducting 10% amount towards the royalty from the compensation payable to the petitioner under section 28-A of the said Act is contrary to law and same is liable to be set aside. 7. The learned counsel for the petitioners submits that admittedly in the present proceedings, the Special Land Acquisition Officer has passed Award under section 28-A of the said Act on 12-11-2012 and thereafter made the payment of compensation on 3-9-2015. Admittedly, there was delay on the part of the respondents to make payment of compensation. Hence, the petitioners are entitled to interest under section 34 of the said Act from the date of the Award under section 28-A of the said Act i.e. 12-11-2012 till the date of payment i.e. 3-9-2015. Hence, the respondents may be directed to refund the royalty amount along with interest on entire amount as per section 34 of the said Act. The learned counsel for the petitioners submits that if the Writ Petition is not allowed irreparable loss will be caused to the petitioners. 8. On the other hand, the learned AGP for the respondent has vehemently opposed the Writ Petition. He submits that the Special Land Acquisition Officer has rightly deducted 10% amount towards royalty on the basis of the Government Resolution dated 11-1-2017 and also 7-5-2014. He submits that the Special Land Acquisition Officer, by his letter dated 20-2-2017 (Exhibit-E) and 22-5-2017 gave reasons for deduction of 10% amount towards royalty on the basis of the letter dated 2-7-2009 issued by the Revenue Department, Government of Maharashtra, Mantralaya, Mumbai and also Government Resolution dated 11-1-2017. 9. The learned AGP submits that the petitioners’ land bearing Gut No. 39(pt) having area admeasuring 5H 55R was acquired for the Minor Irrigation Percolation Tank at Pratap Nagar vide Award dated 12-9-1994 by the Special Land Acquisition Officer No. 1, Solapur. 9. The learned AGP submits that the petitioners’ land bearing Gut No. 39(pt) having area admeasuring 5H 55R was acquired for the Minor Irrigation Percolation Tank at Pratap Nagar vide Award dated 12-9-1994 by the Special Land Acquisition Officer No. 1, Solapur. He submits that the record of respondent No. 3 shows that the tenure of the land Gut No. 93(pt) is Mahar Watan Land and to that effect the Mutation Entry No. 295 was effected in the revenue record. Therefore, respondent No. 3 has rightly deducted 10% royalty amount from the compensation payable to the petitioners in view of letter dated 2-7-2009 issued by the Under Secretary, Department of Revenue and Forest, Mantralaya, Mumbai. He submits that respondent No. 3 has a right to deduct 10% towards royalty as per Government Resolution dated 11-1-2017. Therefore, there is no substance in the Writ Petition. Same is liable to be dismissed with costs. 10. We heard both the sides at length. It is to be noted that admittedly, in the present proceedings, the Special Land Acquisition Officer has passed the Award dated 12-11-2012 under section 28-A of the said Act in respect of the acquired land in favour of the petitioners. At the time of making payment on 3-9-2015 the Special Land Acquisition Officer has deducted 10% amount towards royalty on the basis of the letter dated 2-7-2009 issued by the Under Secretary, Department of Revenue and Forest, Mantralaya, Mumbai and Government Resolution dated 11-1-2017. It is to be noted that when there is compulsory acquisition, there is no question of deducting royalty amount. This issue was squarely covered by the Full Bench Judgment of this Court in the matter of Govind Ghorpade (supra), wherein it is specifically held that under section 23(1) of the said Act and section 11(3) of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 market value of the acquired land has to be determined after taking into account market value of the land having no restrictions and thereafter deducting the amount equivalent to 20 times the assessment. Therefore, at the most the respondents can deduct amount equivalent to 20 times of the assessment of the acquired land. Therefore, at the most the respondents can deduct amount equivalent to 20 times of the assessment of the acquired land. Therefore, in view of the Full Bench Judgment of this Court, the decision taken by the respondents by their letters dated 20-2-2017 and 22-5-2017 is liable to be set aside and allow the petitioner’s Application dated 9-2-2017 holding that the respondents’ action of deducting 10% towards royalty amount from the compensation payable to the petitioner under section 28-A of the said Act is illegal. 11. Admittedly, in the present proceedings the Special Land Acquisition Officer has passed the Award on 12-11-2012 under section 28-A of the said Act and made the payment to the petitioners after more than two and half year i.e. on 3-9-2015. Therefore, as per section 34 of the said Act the petitioners are entitled to interest on delayed payment. 12. In view of the above mentioned facts, we are of the opinion that the petitioners have made out a case for allowing this Writ Petition. 13. Hence, following order is passed. (a) Letters dated 20-2-2017 and 22-5-2017 issued by the respondent No. 3 deducing 10% amount towards royalty from the total compensation payable to the petitioners under section 28-A of the Land Acquisition Act, 1894 is illegal and same is set aside. (b) It is held that the respondents have no right to deduct 10% royalty amount from the compensation payable to the petitioners under section 28-A of the Land Acquisition Act, 1894 in respect of the acquired land. (c) The respondents are directed to refund the entire amount deducted by them towards 10% royalty to the petitioners with interest as per the provisions of the Land Acquisition Act, 1894. (d) The petitioners are entitled to interest under section 34 of the Land Acquisition Act, 1894 on delayed payment i.e. from the date of Award i.e. 12-11-2012 till the date of payment 3-9-2015. (e) The respondents are directed to calculate the entire amount of compensation payable to the petitioners considering the law laid down by this Court in Full Bench judgment in the matter of State of Maharashtra vs. Govindrao Narayanrao Ghorpade, 1985 Mh. L.J. 170 (F.B.) within three months from the date of receipt of a copy of this order and make the payment to the petitioner immediately thereafter. (f) The Writ Petition stands disposed of accordingly. (g) No order as to costs. Petition allowed.