Maharashtra Industrial Development Corporation vs The State Of Maharashtra & Ors.

. Heard Mr. M. M. Agnihotri, learned Counsel for the Appellant and Ms. Hemlata Dhande, learned AGP for Respondent Nos.1 and 2. None appeared for Respondent No.3, though served.

In the present Appeal the challenge is to the Judgment and order dated 25/9/1996 passed by the learned Civil Judge Senior Division, Nagpur in Land Acquisition Case No. 11/1993.

In the present Appeal, subject-matter is plots bearing Survey Nos. 114, 115 and 111 admeasuring 37.51 HR, P. C. No. 76 situated at village Rengapar, Tahsil and District Nagpur.

The case of the Respondent No.3/Society before the Reference Court was that it is a Co-operative Society registered under the provisions of Maharashtra Co-operative Societies Act, 1961. The suit property was purchased by the Society for valuable consideration from Dobi-Nagar Co-operative Housing Society, by way of registered sale deed dated 27/10/1983. On the date of purchasing the property, the Sub Divisional Officer, Nagpur by order dated 27/10/1983 passed in Revenue Case No. 35/NAG/34/82-83 permitted the conversion of the agricultural land into non-agricultural use.

It is also pointed out by the Respondent No.3/Society that after purchasing the land, the Assistant Director Town Planning, Nagpur had sanctioned the layout plan vide order dated 27/6/1983. In pursuance thereof, the Respondent No.3/Society carved out 168 plots over the said land. The land purchased by the Respondent No.3/Society was adjacent to the National Highway No.7 i.e. Nagpur-Hyderabad Road. The location of the land is at a distance of 1 km from Buttibori Railway Station. Post Office, Police Station, Market place etc. are at a distance of 1/4 th km from the said land.

The Society has stated before the Reference Court that after purchasing the land, they have consulted for its development with Architect Mr. Sudhir Joshi. The said Architect has informed the rate of development about Rs.9/- to 9.50/- per sq.ft. including road and electric line. However, the Society has made an Agreement with one Vishwanath Sathone on 31/1/1985, whereby it was agreed that he will develop the land at the rate of Rs.8.50/- per sq.ft. as development charges. The Respondent No.3/Society has given him Rs.10,000/- as advance. In the process, the Society has paid Rs.6.00 Lac to Rs.7.00 Lac to Mr. Sathone for development of land. The said development was not completed in view of Government Notification to acquire the land for Buttibori MIDC Project.

It is further stated that land of the Society was acquired by the State Government in the year 1989, and accordingly, they have handed over the possession of the land to the Government. In the said land acquisition proceeding they received the compensation of Rs.6,71,154/-. The said amount was accepted by them under protest. According to the Respondent No.3/Society, in the light of this factual aspect they have sought enhancement of compensation at the rate of Rs.7/- per sq.ft., and claimed the compensation of Rs.3,00,000/- per acre before the Reference Court.

In the light of above submission, the Secretary of the Respondent/Society namely, Madhukar Vithobaji Mahakalkar (AW-1) was examined before the Reference Court and he has reiterated the entire submission made in the reference application. In addition to the Secretary of the Respondent/Society, Respondent No.3 has examined Vishwanath Ramchandra Sathone (AW-2). As per his deposition he had entered into the contract with Respondent/Society for development of land and he has charged the development charges at the rate of Rs.8/- and Rs.8.50/-. This witness further stated that he received Rs. 5.00 Lac to Rs. 6.00 Lac in the year 1984 to 1990. However, due to the Notification he had been asked to stop the work, as the land was acquired by the State Government. One more witness namely, Pandurang Ramchandra Ambatkar (AW-3) was examined to prove the prevailing rate of the land at the time of Notification. He has stated that he had entered into an Agreement with the Society to purchase the plot No.78 admeasuring 1425 sq. ft. at the rate of Rs.10/- per sq.ft. He has stated that towards earnest money he has paid Rs.1000/- and as per the Agreement he has deposited the remaining amount within a period of two years. As such, from time to time he had deposited Rs.10,000/- with the Respondent/Society. This witness stated that no sale deed was executed in respect of the plot as it was informed to him that entire land was acquired for Buttibori MIDC Project. He stated that the Society had returned back the amount which was paid by him and thereby he has torn the Agreement of Sale.

In the background of abovesaid factual position, the learned Reference Court has decided the reference application vide impugned Judgment and order dated 25/9/1996. The learned Reference Court has awarded the compensation of Rs.2,00,000/- per acre for the acquired portion along with other statutory benefits. In addition to this, the learned Reference Court has also awarded compensation of Rs.1,00,000/- towards well and trees situated in the acquired land as per E-statement.

The present Appellant has challenged the said Judgment and order before this Court on the ground that the learned Reference Court while deciding reference proceeding did not even ensure that whether notices of the reference proceeding were served properly on the Appellant or not. As a result, the Appellant could not participate in the proceeding nor get opportunity to cross-examine the witnesses and represent their case before the Reference Court. But leaving apart the said issue, Appellant states that they are ready to contest the matter on merit. It is the submission of the Appellant that the evidence, which was brought on record by the Respondent/Society, is not trustworthy and same did not corroborate to the documents which were placed on record in the matter. Hence, it is the submission of the Appellant that impugned order is liable to be quashed and set aside.

In response to the notice issued in the present Appeal, initially the Respondent No.3/Society appeared in the matter and engaged their Counsel. However, when this matter was came up for final disposal, Advocate appearing for the Respondent No.3 raised the grievance that Respondent No.3 is not in contact with him. Hence, he sought discharge from appearing on behalf of the Respondent No.3 in the present Appeal. After satisfaction of the fact that there was no response from the Respondent No.3/Society to the legal notice issued by the Counsel, learned Counsel was discharged from the present proceeding. Immediately thereafter this Court issued notice to the Respondent No.3 to engage the another Counsel, but no response has been received from the Respondent No.3 to the court notice. This Court twice adjourned the matter with a hope that someone will appear on behalf of the Respondent No.3, but none appeared on behalf of the Respondent No.3, and therefore, this Court has remained no option than to proceed further to decide the Appeal on its own merits in absence of the Respondent No.3.

It is also necessary to note down that in the present matter one Kalidas Kango has filed Civil Application No.1998/2010 for intervention. This Court, by order dated 18/3/2016 clarified that the Civil Application will be considered at the time of final hearing. However, none appeared on behalf of the proposed intervener in the matter. As such, in absence of anyone on behalf of the Intervener, Civil Application for intervention was not looked into by this Court in the matter.

In the background of abovesaid factual position, I have heard learned Counsel for the Appellant/MIDC at length and perused the entire record as well as R & P which is produced before this Court and the case laws cited before me.

At the outset, the Appellant has pointed out the Judgment of the Hon’ble Supreme Court of India in the case of Ramanlal Deochand Shah V/s The State of Maharashtra and Ors., (2013) 14 SCC 50. In this Judgment the Hon’ble Supreme Court has observed in paragraph No.7 as under :

It is further pertinent to note that as per Sections 23 and 24 of the Land Acquisition Act, the Hon’ble Supreme Court has laid down the principles as to which factors to be considered while determining the compensation and in which circumstances it should be neglected in determining the compensation. One of the most important factor under Section 23 needs consideration is that market value of the land on the date of publication of the Notification under Section 4 is to be considered while determining the compensation. Hence, in the present matter keeping in mind the provisions of the Land Acquisition Act and the law laid down by the Hon’ble Supreme Court, the market value is required to be determined in the matter.

In the present case, main submission of the Appellant is that they were not properly served the notice of the reference proceeding, and therefore, they could not participate in the matter. In this regard, I have perused the record and verified the correctness of the submission of Appellant. It is seen that notices were issued to the Appellant by the Reference Court, however, the Reference Court found them absent after notices were duly served on them, and therefore, the matter proceeded exparte against them. The Appellant herein has not specifically pointed out from the record that the notices were never issued to them, but at the same time they have stated that the Appeal being a continuous proceeding of the Reference Court, the submission of the Appellant can be considered in the present Appeal. Therefore, though the present Appellants were not participated in the reference proceeding, by accepting their submission, I had allowed them to prosecute the Appeal on its own merit.

At the first instance, submission of the present Appellant is that the evidence recorded before the Reference Court was not trustworthy. According to the Appellant, as per the law laid down by the Hon’ble Supreme Court of India in the case of Dilawarsab Babusab Mullasab and Ors. V/s Special Land Acquisition Officer, (1975) 1 SCC 158 mere oral evidence which was not supported by any documentary evidence cannot be considered by the Court in the land acquisition cases. According to the Hon’ble Supreme Court, best evidence would be the one which was corroborated by the documentary proof.

Insofar as the deposition of Secretary of the Society is concerned, it is the submission of the Appellant that the date of purchase of agricultural land and the date of order passed by the Sub Divisional Officer is co-incidentally same. This fact, if accepted, then it is very surprising as to how the Dobi Nagar Co-operative Society, who has already initiated proceeding for converting the land into non-agricultural use has sold out the property to the Respondent/Society, and secondly, it is the submission of the Appellant that in the present Appeal best evidence to determine the market value of the land would be the copy of the sale deed dated 27/10/1983. However, the Respondent No.3/Society neither stated anywhere the consideration of the sale deed nor filed the copy of sale deed on record. Therefore, this transaction which was alleged to be taken place seems to be doubtful.

It is further stated that in the Affidavit of the Secretary dated 22/8/1995 the witness has stated that Assistant Director of Town Planning, Nagpur has sanctioned the layout plan vide order dated 27/10/1983, however, the said order of the Assistant Director of Town Planning was not placed on record. Consequently, whether the layout of 168 plots was legally sanctioned or not is not clarified in the matter.

It is also pointed out by the Appellant that the business of every registered Society is done through their resolution. If the Society has decided to develop the land purchased by them, then it was necessary for the Respondent No.3/Society to atleast place on record time to time resolution passed by them, but no such resolution is placed on record. The Respondent No.3/Society has only relied upon the communication made by the Secretary in his personal capacity to Mr. Sudhir Joshi, Architect, who in turn has communicated to him that development charges will be at the rate of Rs.9/- to Rs.9.50/- per sq.ft. Hence, according to the Appellant, such evidence cannot be said to be admissible in the eyes of law. So also it is stated that if the work of development of plot was given to one Vishwanath Sathone, then atleast the resolution of the Society should have been placed on record, and if not, then the same should have been mentioned in the Agreement which was effected between them on 31/1/1985, but nothing is placed on record. Therefore, such agreement cannot be accepted as a true and correct document in the matter.

As far as the evidence of Shri Vishwanath Sathone is concerned, it is the submission of the Appellant that this witness no where stated as to whether he was an authorised developer or having a Degree of Architect or done such work previously so that it can be presumed that he was authentically permitted to develop the land belonging to the Society. The Society and this person stated that he received the amount of Rs.5.00 Lacs to Rs.6.00 Lacs between 1994-95. In this regard record must have been maintained by the Respondent/Society, but no such record is placed on record. So also it was not clarified from which account this amount has been paid to this Developer and out of that amount how much development he has done in the acquired land. Hence, according to the Appellant, this witness is again not trustworthy.

The last witness, whose deposition has been relied upon is, Pandurang Ambatkar, who stated that on the basis of Agreement of Sale, he has paid Rs.10,000/- to the Society for purchase of the plot No.78. But, due to the Notification, sale deed was not executed and thereby the Society has returned back all the amount to him. In support of this submission this witness could have placed on record the receipt of amount which he had paid to the Society or which was refunded by the Society to him. But, nothing is placed on record. More importantly, this witness on his own stated that he has torn the Agreement of Sale. He has relied upon the xerox copy of Agreement of Sale which was marked as Article-A. No steps were taken to prove this Xerox copy of Agreement by applying the procedure as contemplated under the provisions of law. Hence, it is the submission of the Appellant that though this land can be at the most considered as converted into the non-agricultural land, it cannot be accepted on the basis of this evidence that it was well developed at the time of Notification issued in the matter.

The perusal of the record shows that copy of one transaction i.e. sale deed dated 10/10/1990 (Exhibit-22) of Survey No. 120 admeasuring 0.49 HR situated at mouza Rengapar was produced by the parties. The said transaction is between Maroti Shamrao Kolhe to Sunil Murlidhar Tulsthan. The market rate is recorded in this document is Rs.1,01,000/- for the land admeasuring 0.49 HR. Except this, no other document has been produced on record by the Respondent to demonstrate the correct market value of the land in the vicinity.

In the background of this factual position, the Appellant has relied upon the Judgment of this Court in First Appeal No. 745/2006 along with Cross Objection No. 10/2008 decided on 29/11/2017. It is the submission of the Appellant that out of the same land acquisition proceeding the agricultural land bearing Survey No.52 situated at mouza Rengapar, Tahsil Hingna, District Nagpur was acquired by them for the purpose of development of industrial area. In the said proceeding this Court, after considering and verifying the relevant documents, which were produced by the parties before this Court, has determined the compensation of agricultural land at the rate of Rs.90,000/-per hectare and separate compensation was paid to the trees. Hence, according to the present Appellant, considering the fact that the land was converted into non-agricultural use but the same was not developed, the Reference Court has committed an error by awarding compensation at the rate of Rs.2,00,000/- in the present Appeal.

In the light of above factual and legal position, the issue now required to be determined in the present Appeal is, ‘what will be the proper market value of the acquired land in the matter’. From the evaluation of the evidence, which was brought to my notice by the Appellant, it is clear that though an attempt has been made by the Respondent No.3/Society to demonstrate that after purchase of the land same was developed for non-agricultural purpose, is not proved before the Reference Court. The best available evidence i.e. copy of sale deed dated 27/10/1983, by which according to the Respondent No.3 the land was purchased from Dobinagar Co-operative Society, would be the relevant factor to decide the market value of the land, but the same was also not produced in the matter.

Before determining the market value of the land, I have perused the Judgment delivered by the Reference Court. It is seen from the Judgment that the Reference Court has relied upon the entire evidence which was recorded before him and it seems that there is no evaluation of the evidence as no one has contested the reference proceeding before the Reference Court. As such, the Reference Court, by considering the fact that land has been developed as stated by the witnesses, has determined the market value of the land. In my view, the observations made by the Reference Court by relying upon the evidence, which according to me is not found trustworthy, I do not agree with the enhanced compensation at the rate of Rs.2,00,000/- per acre awarded by the Reference Court for the acquired land in the matter.

Exhibit-22 is only the copy of Index, which is the extract of record maintained by the Tahsil Office, Nagpur, which is produced on record. Hence, it is clear that there is no concrete evidence to reach to the proper conclusion. In the circumstances, in my opinion, if this Court has awarded compensation at the rate of Rs.90,000/- per hectare for the agricultural land, in my opinion, considering the fact that land was converted into non-agricultural purpose and its location is adjacent to the National Highway and near to the public places, it will be justified to assess the market value of the land at the rate of Rs.1,35,000/- per hectare.

In my opinion, interference of this Court is necessary in the matter for the reason that the enhanced amount awarded by the Tribunal is without evaluating the evidence and also not looking into the correct factual position of the matter. The Tribunal has committed an error and blindly awarded the compensation. The Respondent No.3 failed to demonstrate any genuine transaction including their own sale deed, it is neither proved by the Respondent No.3 that the land was fully developed by them nor relevant documents in that regard are placed on record.

Hence, in the facts and circumstances, the amount determined at the rate of Rs.1,35,000/- per hectare is justified. Resultantly, the following order is passed.

In view of disposal of First Appeal, pending Civil Application Nos. 1998/2010 and 1999/2010 do not survive. Both the Applications stand disposed of accordingly.