Dynadeo Honaji Narkhede & Ors. vs State of Maharashtra and others

Heard Shri V.S. Giramkar, Advocate for the appellants, Ms. N.P. Mehta, A.G.P. for respondent No.1 and Shri M.M. Agnihotri, Advocate for respondent No.2.

At the threshold, appellants have presented an application under Order 6, Rule 17 of Code of Civil Procedure seeking leave to correct a typographical error in para 1 and para 3 of appeal memo. They have also sought leave to delete para 2 thereof.

Respective counsel appearing for the respondents have no objection. I have perused application. It is not causing any prejudice and attempts to bring on record correct facts, hence it is allowed. Necessary amendment be carried out forthwith after the Registry registers civil application.

With the consent of parties appeal has been taken up for final hearing. Advocate Giramkar has pointed out that Land Acquisition Officer has awarded compensation at Rs.13,000/- per hector and Reference Court has enhanced it only to Rs.28,000/- per hector. He submits that respondent No.2 has acquired lands for nonagricultural development. This agricultural potential and nonagricultural potential ought to have been properly evaluated and rate should have been revised accordingly. He further submits that Land Acquisition Officer has awarded amount of Rs.11,892/- for well constructed in the acquired land. The appellants are entitled to Rs.30,000/- towards compensation and rejection of that demand by Reference Court is unjust.

To substantiate his contention that purpose for which land is being acquired needs to be kept in mind while determining the compensation he relied upon judgment of Hon''ble Apex Court given in the case of Nelson Fernandes and Ors. v. Spl. L.A.O. South Goa and Ors. reported at 2007 (4) SBR 18.

Advocate Agnihotri on behalf of respondent No.2 Acquiring Body submits that demand for enhanced compensation towards well is unsustainable. Reference Court has found no material produced before it to substantiate the same. In appeal before this Court situation has not undergone any change.

He invites attention to provisions of Section 24 (fifthly) to urge that law itself prohibits look into proposed increase in valuation of land due to its acquisition or purpose for which the land would be put after acquisition. He has relied upon judgments of Hon''ble Apex Court given in the case of State of Orissa v. Brij Lal Misra and others reported in (1995) 5 SCC 203 and Special Land Acquisition Officer v. Karigowda and others reported at (2010) 5 SCC 708. According to him, contention raised by appellants fall in four corners of the facts looked into by Hon''ble Apex Court in these two judgments. He distinguishes the judgment relied upon by Advocate Giramkar. According to him, position emerging in the light of 5th contingency provided in Section 24 did not fall for consideration in that judgment and it is distinguishable on facts.

Learned A.G.P. has supported arguments of Advocate Agnihotri.

With the assistance of respective counsel I have perused records. Questions which fall for determination are: (i) Whether appellants are entitled to enhanced compensation towards well ?

(ii) Whether purpose for which land is being acquired is relevant for the purposes of ascertaining the market value of the acquired land ?

The material on record shows that Land Acquisition Officer has awarded sum of Rs.11,892/- towards well. It is also observed that no evidence has been produced before it to substantiate demand for this enhancement, however, in para 13 he has added Rs.5,000/- as additional compensation for well. This addition has not been questioned by respondent No.2 at all. Hence there is no evidence produced by appellants to justify demand of Rs.30,000/- as compensation towards well, point No.2, mentioned supra, is answered in negative.

The demand of Rs.75,000/- per hector as cost of land is due to nonagricultural purpose to which it is to be put by respondent No.2 Industrial Development Corporation. The perusal of Section 24 shows that it mandates Court to ignore certain situations. As per contingency No.5 stipulated therein Court cannot consider any increase to the value of land forming subject matter of acquisition only due to proposed user or purpose behind such acquisition. This express mandate has been looked into by Hon''ble Apex Court in the case of State of Orissa v. Brij Lal Misra and others (supra) in para 5. In para 3 while explaining the concept of potential value Hon''ble Apex court has stated about capability of land to be used in existing condition in future. Thus change in user consequent to acquisition cannot form relevant consideration. This has been so held again while quoting this judgment with approval in para 48 in the judgment given in case of Special Land Acquisition Officer v. Karigowda and others (supra).

Hon''ble Apex Court in the judgment given in case of Nelson Fernandes and Ors. v. Spl. L.A.O. South Goa and Ors. (supra) was not required to consider the situation looked into by it in above two judgments. There the land was acquired for construction of BG line for Kokan Railway. Compensation awarded by Land Acquisition Officer was hiked by Reference Court. In appeal before High Court, High Court rejected the report of Valuer and reduced rate of compensation from Rs.192/- per Sq. Mtr. to Rs.38/- per Sq. Mtr. In the process, High Court held that prices fetched from small plots cannot be applied to the lands covering large area and that considering location of acquired lands vis-a-vis its nature and the plot of sale deeds, a deduction of at least of 85% ought to have been made. It is this deduction at 85% which has been commented upon by Hon''ble Apex Court. In para No.28 Hon''ble Apex Court has stated that the Special Land Acquisition Officer and District Judge as also High Court failed to note that purpose of acquisition was for railways and that purpose was relevant for taking into consideration to decide compensation. Further discussion in para 28 shows that this purpose was relevant for the purpose of ascertaining the quantum of deduction. The Hon''ble Apex Court has after quoting compensation awarded by Land Acquisition Officer and by Reference Court has also pointed out the deduction towards development charges and it has also relied upon its earlier judgment given in the case of Viluben Jhalejar Contractor (D) by Lrs. v. State of Gujarat reported in JT 2005(4) SC 282. In that judgment while commenting upon the quantum of deduction towards development charges Hon''ble Apex Court pointed out that the land there (in 2005 judgment) was acquired for being submerged in water of a dam and had no potential value. In that judgment after considering this purpose and the fact that sale deed relied upon was of a small plot, Hon''ble Apex Court awarded compensation of Rs.160/- per Sq. Mtr. in respect of large plots and Rs.175/- per Sq. Mtr. for smaller plots. Thus this judgment only shows that purpose for which land is being acquired or is to be put may became relevant while determining the quantum of deduction for finalizing the amount of compensation. Hon''ble Apex Court, therefore, was not required to look into 5th contingency stipulated in Section 24 of Land Acquisition Act, 1894. This judgment, therefore, does not enable appellants to urge that their lands have acquired NA potential because of acquisition by respondent No.2. Grievance made before this Court by appellants is, therefore, unsustainable. Accordingly point No.2 is also answered against appellants. Hence appeal fails. It is dismissed with no order as to costs. Rule discharged.