VINAYAK CHINTAMAN DESHMUKH Vs. SPECIAL LAND ACQUISITION OFFICER

JUDGEMENT

(1.) ORAL Judgment: this Appeal takes exception to the Judgment and Decree passed by the Civil Judge, S. D. Ratnagiri dated 31. 10. 1985 in Land Reference No. 7 of 1983. The land in question admeasures about 1 Hectors and 68. 5 Ares out of Survey No. 204a Hissa No. 1, 5a, 5b, 9 of Village Lanja. The suit land has been acquired by the Government of Maharashtra for establishment of 33 H. K. V. sub station. The land was owned and possessed by the Appellants herein. Section 4 Notification was issued on 12th June, 1980 which was duly published. Public Notice under Section 4 (1) was also issued on 22. 7. 1980. Individual notices were also given on 28. 7. 1980 and later on notification under Section 6 was published on 21. 3. 1981. As there was some printing error, corrigendum was issued and published on 3. 9. 1981. Finally, notice under section 9 (1), (2), (3) and (4) fixing the date of hearing and handing over the possession was issued on 3. 1. 1983. It was notified that possession of the suit lands will be taken over by invoking urgency clause on 19th Jan 1983. Accordingly, possession of the suit lands was taken over on 19. 1. 1983. Subsequently, the Special land Acquisition Officer passed award dated 18. 2. 1983 determining the market price of the suit land at the rate of Rs. 350/- per Are. Besides, the Special Land Acquisition Officer awarded compensation of Rs. 1530/- for fruit trees and solatium at the rate of 15% over the amount of compensation under Section 23 (2) and further interest at the rate of 4% per annum from 19. 1. 1983 till the date of payment of final compensation. In all sum of Rs. 70,044. 57 ps. were awarded as compensation by the Special Land Acquisition Officer. That amount was accepted by the Appellants on 25th March, 1983 under protest and, the Appellants also submitted application for enhancement of compensation and for making reference under Section-18 of the Act. Accordingly, reference under Section 18 was made to the Court. The said reference was numbered as Land Reference No. 7/1983 and was tried by Civil Judge, (S. D.), Ratnagiri. In the said reference, claimants examined three witnesses in support of their claim for enhancement of compensation at the rate of Rs. 1500/- per Are and Rs. 4000/- for trees, Rs. 900/- for compound wall and Rs. 20000/- as loss in respect of the other land. Roznama indicates that besides three witnesses examined on behalf of the Appellants, the Appellants produced two sale deeds along with Exh. 44 and that the Application was allowed and the said documents were allowed to be produced on record. Reference was decided by the impugned Judgment and Decree dated 31. 10. 1985. The same was partly allowed by granting enhancement of market price at the rate of Rs. 250/- per Are in respect of acquired land and Rs. 8000/- in respect of severance of other land. Reference Court has adverted to materials, which were before the Special Land Acquisition officer as well as further materials and the oral evidence, which was adduced before the Court during the reference. After analyzing the materials on record in para 9 of the Judgment the reference Court has found that the Panchnama of valuation prepared by Horticulture Department would indicate the market price of the land at the rate of Rs. 500/- per Are. Besides, reference is made to three sale instances on the basis of which court found that it was possible to hold that the market price of the land at the relevant time was around Rs. 600/- per Are. In so far as sale instances of Waghdhare which was pressed into service on behalf of the claimants is concerned, the Reference Court observed that the same was not comparable one. Inasmuch as, it was almost two furlongs away from the disputed land, whereas the said land was situated in the heart of the city near S. T. stand. Taking over all view of the matter, the Reference Court found that the market price at the rate of Rs. 600/- per Are would be the adequate and appropriate compensation was granted. In so far as loss on account of severance to other land is concerned, the Reference Court observed that the claimants were entitled for compensation under that sale by virtue of Section 23 (1 ). The Reference Court restricted the amount of Rs. 8000/- having regard to the fact that the market price of the suit land was determined at Rs. 600/- per Are. In so far as the claim for compensation towards the trees was concerned, the Reference Court found that nothing was brought on record that the valuation carried out by the Horticulture Department was not proper and claimants did not examine any witness to disprove the report of the Horticulture Department. Accordingly, the additional claim set up by the claimants was negatived. In so far as amount towards the loss of compound wall being sum of Rs. 900/ -. Reference Court in Para 12 observed that the Claimant No. 3 has nowhere stated anything in respect of the said compound wall in his deposition and that nothing was brought on record for removal of gadaga etc. Accordingly that claim of Rs. 900/- was also rejected. In the circumstances, the Reference has been partly allowed as mentioned above, by the impugned Judgment, which is subject of challenge in the present appeal.

(2.) THE learned counsel for the Appellants contends that the Reference Court has completely over looked the fact that during the cross-examination of the claimants witnesses nothing has been suggested to them that the sale instance No. 3 was incomparable, whereas their evidence would indicate that the suit lands were situated in prime locality of the city with additional advantage of water facility. Besides, the sale instances relied are lacking water facility. The learned counsel further contends that the sale instance No. 3 as relied by the claimants took place in the year 1976, whereas the acquisition of the suit land was by virtue of Notification in June, 1980, and, therefore, reasonable escalation of price ought to be provided minimum at 15 per cent per annum. The learned counsel further contends that there is absolutely no evidence adduced on behalf of the Respondent Government to justify the rate at Rs. 350/- per Are. It is therefore, submitted that the Reference Court has failed to appreciate the relevant materials on record and applied the incorrect principle for determining the market price of the suit land. In so far as the loss caused to the claimants on account of disturbance of approach road to the said land is concerned, it is contended that the Reference Court has not given any reason whatsoever for determining the amount under that caption at the rate of Rs. 8000/- only when the claimants had demanded Rs. 20,000/- towards the land lost. In so far as the view taken by the Reference Court relating to trees is concerned, the learned Counsel contends that it has been over looked that the trees were fruit bearing trees and, therefore, compensation determined was inadequate. The learned counsel has also prayed for compensation for loss on account of compound wall being sum of Rs. 900/- contending that there was sufficient evidence to grant that amount as compensation. The learned counsel further contends that, in any case, the view taken by the Reference court with regard to the additional benefits is concerned, the same will have to be now granted in terms of the recent decision of the Apex Court reported in (2001) 7 Supreme Court Cases Page 211 in the case of Sunder Vs. Union of India.

(3.) ON the other hand, the learned Additional Govt. Pleader contends that no fault can be found with the approach adopted by the Reference Court and that no interference is warranted with the conclusion reached that the market price of the suit land should be Rs. 600/- per Are. He contends that record would indicate that no sale instance has been proved by the claimants during the evidence. He however, concedes that two sale instances were allowed to be brought on record along with Application Exh. 44. He submits that at the best only those two sale instances can be looked into but, as rightly held by the Reference Court, the same pertained to year 1984 - 85 and therefore, of no avail. Accordingly, the same cannot be said to be comparable sale instances. According to him, there is absolutely no evidence brought on record by the claimants to establish their claim for additional compensation towards the market price. Reliance has been placed on the decision of the Apex Court in A. I. R. 1988 S. C. 1652 in the case of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer. Poona and another to contend that the Court cannot take into account the materials relied upon by the Land Acquisition Officer unless the said material is produced and proved before the Court. Reliance is also placed on this decision to contend that the Court has to treat the reference as original proceeding and determined the market valuation on the basis of the material produced before it. The learned counsel contends that, therefore, there is no question of granting of enhanced compensation to the claimants in the fact situation of the present case. In so far as the compensation on the other head is concerned the learned counsel contends that there is absolutely no evidence brought by the claimants on record in that behalf and has been so observed by the Reference Court. He contends that no fault can be found with the approach of the Reference Court for not accepting the plea regarding the additional compensation under those heads. He submits that the reference Court has properly compensated the claimants in so far as loss due to severance of other land is concerned, having regard to the market price of the suit land being determined at Rs. 600/- per Are. The learned counsel then fairly concedes that in so far as the additional benefits and solatium is concerned, the claimants would be entitled for amount in terms of the decision of the Apex Court in Sunders case (supra) and at the best the Appellants would succeed only to that extent.