Full Judgment Text
1 FA67.05 414.07.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 67 OF 2005
Smt. Nirmalabai Pratapsingh Ade,
aged about 65 years, Occ. Cultivator,
R/o. Digras, Tah. Digras,
Distt. Yavatmal APPELLANT
...VERSUS...
1] The State of Maharashtra, through
Collector, Yavatmal.
2] The Collector, Yavatmal,
3] The Sub Divisional Officer and
Land Acquisition Officer, Darwha
(Benefit Zone), Distt. Yavatmal…... RESPONDENTS
AND
FIRST APPEAL NO. 414 OF 2007
1] The State of Maharashtra, through
Collector, Yavatmal.
2] The Collector, Yavatmal,
3] The Sub Divisional Officer and
Land Acquisition Officer, Darwha
(Benefit Zone), Distt. Yavatmal APPELLANTS
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...VERSUS...
Smt. Nirmalabai Pratapsingh Ade,
(deceased) through L.Rs.
1] Sachin Pratapsingh Ade (Son)
R/o. Vasant Nagar, Tah. Digras,
Distt. Yavatmal
2] Ku. Ratna Pratapsingh Ade (Daughter)
R/o.Mukbadhir Vidyalaya, Digras,
Distt. Yavatmal.
3] Sau. Padma Baburao Rathod (Daughter)
R/o. Wadgaon, Distt. Yavatmal
4] Sau. Sushma Arun Jadhao (Daughter)
Jawahar Colony, Naik Nagar,
Aurangabad.
5] Sau. Pravina Ashfaq Khan (Daughter)
Juni Dharamshala, Civil Lines,
Yavatmal.
6] Sau. Anita Anant Kombe (Daughter),
Gurudeo Nagar, Digras,
Distt. Yavatmal.
7] Sau. Seema Maniram Rathod (Daughter),
Civil Lines, Buldhana. …... RESPONDENTS
Shri B.D.Vora, counsel for appellant in FA No.67/2005 and for
Respondent Nos. 1 to 7 in FA No. 414/2007.
Shri T.R.Kankale, counsel for Respondents in FA No.67/2005 and for
appellants in FA No. 414/2007.
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CORAM: R. K. DESHPANDE,
P.N.DESHMUKH, JJ.
rd
DECEMBER, 2014 .
DATE : 23
ORAL JUDGMENT (Per R.K. Deshpande, J.)
1] In Land Acquisition Case No. 18/1997, the
Reference Court has delivered the judgment and order dated
nd
January, 2004, granting compensation of Rs.3,75,67,985/
2
along with the other statutory benefits payable in respect of
acquisition of land of 1.21 HR equivalent to 1,29,345 sq.ft,
out of Survey No. 118/3, situated at Digras. First Appeal No.
67 of 2005 has been preferred by the claimant seeking
enhancement of compensation at the rate of Rs. 159/ per
sq.ft., as against the rate of Rs.100/ per sq.ft granted by the
reference Court. First Appeal No.414 of 2007 is preferred by
the State challenging the enhancement of total compensation
from Rs.4,84,000/ to Rs. 3,75,67,985/ granted by the
Reference Court.
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2] Both these appeals pertain to the acquisition
made at Digras, Distt. Yavatmal, for construction of Court
buildings and the quarters for the judges and were heard and
th
December,
the judgment was dictated in the open court on 8
2014, allowing the appeal for enhancement of compensation
filed by the claimant and dismissing the appeal challenging
the enhancement filed by the State Government. On the
th
December, 2014, we heard another four
next date i.e. on 9
appeals being First Appeal Nos. 198/2005, 185/2005,
212/2005 and 519/2004 involving the acquisitions made for
the resettlement of the persons affected by Arunavati Project
at the same place of Digras, Distt. Yavatmal. After hearing
the counsel for the claimants and the learned AGP for State
Government, we dismissed two First Appeal Nos. 198/2005
and 212/2005 preferred by the claimants for enhancement of
compensation and allowed two First Appeal Nos. 185/2005
and 519/2004 preferred by the State Government, setting
aside the enhancement granted by the Reference Court.
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3] At the time of correction of the judgment
delivered in both these appeals and before signing, it was
noticed that the facts are almost the same and the sale
transaction dated 03.09.1992 at Exh. 29 therein was also
relied upon by the claimant in these appeals at Exh. 26.
Hence, we called upon the learned counsels to argue the
matter afresh.
4] Accordingly, the matters were reheard on
15.12.2014 and we passed an order as under;
“These matters were heard on 08.12.2014 and the
judgment was delivered in the open court allowing
the First Appeal No. 67/2005 filed by the claimant
and dismissing the First Appeal No. 414/2007 filed
by the State Government. AT the time of correction
of the judgment and before signing it, it transpired
that two sale deed relied upon by the claimants in
these appeals were also the subject matter of four
appeal which were heard on 09.12.2014 and
dismissed by a judgment dictated in open court.
In order to seek further clarification in the matter,
we though it fit to place the matters for hearing
afresh. Accordingly, the learned counsels appearing
for the parties addressed us on merits. We posted
these matters on 22.12.2014 with direction to the
learned Assistant Government Pleader to call for
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the record in respect of conversion of land in
question for non agricultural purpose along with the
order of conversion, if any, passed in 1981.
Steno copy of the order be supplied to the learned
AGP to act upon”
5] We again heard the learned counsels on merits
of the matter on 22.12.2014 and 23.12.2014. In response to
the aforesaid order, the State Government filed an affidavit
dated 23.12.2014 of the Naib Tahsildar from the office of the
Sub Divisional Officer at Digras.
6] The facts of the case are that the land
admeasuring 1.21 HR out of field Survey No. 118/3 of Digras,
Distt. Yavatmal, was acquired for construction of Civil and
Criminal Court Building and the Judges' Quarters vide Land
Acquisition Case No. 8/47/9596 of Digras, by issuing
notification under Section 4 of the Land Acquisition Act on
07.01.1995. The declaration under Section 6 of the Land
Acquisition Act was published on 19.08.1995 and the notice to
lodge a claim under Section 9 of the said Act was issued on
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29.12.1995. The claimant filed statement of claim on
22.01.1996, demanding the rate of Rs.250/ per sq.ft along
with all statutory benefits. The Land Acquisition Officer
passed an award on 07.01.1996 granting the rate of Rs.4 lakh
per hectare and offered the total compensation of
Rs.4,84,000/ to the claimants.
7] In the Reference under Section 18 of the Land
Acquisition Act preferred by the claimant, the reference
Court has enhanced the compensation by granting rate of
Rs.100/ per sq.ft and the State Government was directed to
pay the sum of Rs.3,75,67,985/ along with future interest at
the rate of 15% per annum on the amount of
Rs.1,69,07,225.86. This is how the matter has come up
before this Court in two appeals – (i) First Appeal No. 414 of
2007, preferred by the State Government challenging the
enhancement and (ii) First Appeal No. 67 of 2005 preferred
by the claimant seeking further enhancement.
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8] The Reference Court in its judgment and order
nd
January, 2004, delivered in Land Acquisition Case
dated 2
No. 18/1997 has recorded the finding that the entire layout
including the land acquired was converted into non
agricultural use in the year 1981 i.e more than 13 years prior
to the date of notification under Section 4 and in that survey
number, a Polytechnic College, Deaf and Dumb School were
in existence since 1982 and 1991 respectively, run by Vasant
Naik Education Society. The reference Court placed reliance
upon the diagrammatic representation (Article “A”) drawn by
PW1, the son of the original claimant, who is the Computer
Engineer, to hold that the land in question acquired non
agricultural potentiality. The Court held that though in the
crossexamination PW1 admitted that no documents are
produced to show the Education, Medical, Banking facilities
and other developments were in existence at the time of
issuance of notification under Section 4 of the Land
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Acquisition Act, it does not mean that his oral testimony in
that respect should not be disbelieved specially when any
contrary evidence has not been adduced by the respondent
to establish the market value of the land acquired.
9] The Reference Court has relied upon two sale
instances reflected by the certified copies of two sale Indexes
at Exh.24 and 25. The sale instance at Exh. 24 is dated
16.10.1992 by Ramrao Bhoyar who sold Plot No.5,
admeasuring 1027 sq.ft to Shri Chore for a consideration of
Rs. 1,29,000/ and it was found just at a distance of 490 feet
from the acquired land across the State Highway. The
another sale instance is dated 13.10.1992 at Exh. 25, in
respect of Plot No.74 admeasuring 400 sq.ft sold by Smt.
Vatsalabai Mahindre to Kishor Sarode for the consideration of
Rs.48,000/, situated at Gurudeo Nagar, at a distance of 400
feet from State Highway and about 450500 feet from the
acquired land. The sale instances are proved by examining
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PW2 Ramrao Bhoyar and PW3 Kishor Ramrao Sarode.
Both the sale instances indicate the rate of Rs.125/ and Rs.
120/ per sq.ft., respectively in the year 1992.
10] Two more sale instances at Exh. 26, dated
03.09.1992 and Exh. 27, dated 09.09.1992, are also referred
by the reference Court, but those have not been acted upon
to enhance the compensation. The evidence of Sachin Ade,
the power of attorney holder of the claimant, Ramrao Bhoyar
and Kishor Sarode has also been relied upon. The court has
also held that in Land Acquisition Case Nos. 50/1991 and
51/1991, the court granted compensation to nonagricultural
plots from the same village at the rate of Rs.125/ per sq. ft
and hence the same rate is claimed by the claimant.
11] The points for determination are as under;
(a) Whether the Reference Court was justified in
awarding compensation at the rate of Rs.100/
per sq.ft., for acquisition of 1.21 HR of land out of
Survey No. 118/3 of Digras, Distt. Yavatmal?
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(b) Whether the claimants are entitled for further
enhancement of compensation at the rate of
Rs.125/ per sq.ft.?
12] We have gone through the record and
proceeding of the case. We do not find, in spite of search,
any document produced on record to show that either the
land in the sale instances at Exhs. 24 to 27 relied upon by the
claimant or the lands under acquisitions were converted for
nonagricultural purpose. The finding in Para 9 of the
judgment of the Reference Court that “ the entire layout
including the land acquired was converted into non
agricultural use in the year 1981 i.e. more than 13 years prior
to the date of notification under Section 4 of the said Act” is
based upon the sole testimony of Sachin Pratapsingh Ade,
the son and power of attorney holder of the claimant. In the
th
December, 1996 also, there is a
award passed on 7
statement appearing in para 5 that the land under acquisition
is converted in the year 1981 for non agricultural purpose.
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13] The sale indexes at Exh. 24, dated 16.10.1992
and Exh. 25 dated 13.10.1992 relied upon by the claimant are
proved by examining PW2 Ramrao Fattuji Bhoyar, the
vendor in respect of sale index at Exh. 24, dated 16.10.1992
and PW3 Kishor Ramrao Sarode, the purchaser of the
property covered by sale index at Exh.25, dated 13.10.1992.
Exh. 24 is in respect of sale of Plot No. 5 admeasuring 1027
sq. ft., out of Survey No. 136/2 sold on 16.10.1992 to
Janardhan Chore for consideration of Rs.1,29,000/, whereas
Exh.25 is in respect of sale of Plot No. 74, admeasuring 400
sq.ft., out of Survey No. 136/2 by Smt. Vatsalabai Mahindre
on 13.10.1992 for total consideration of Rs.48,000/. Though
the vendor and purchaser in respect of Exh. 24 and 25
respectively are examined, none of them have produced the
original sale deeds or the copies thereof on record.
14] Though PW2 Ramrao Bhoyar and PW3 Kishor
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Sarode have deposed that the plots purchased by them are
at the distance of about 200250 feet and 500 feet
respectively from the land under acquisition, which is located
touching NandedNagpur State Highway, none of them have
stated that the lands covered by the sale indexes at Exh. 24
and Exh.25 in respect of Survey No. 136/2 were converted for
nonagricultural purpose at any point of time. The vendors
and the purchasers in respect of the sale deeds at Exh. 26
and 27 in respect of plots out of Survey Nos. 6768 have not
been examined and neither the original sale deeds nor the
copies thereof are placed on record of the Reference Court.
There is nothing on record to show that the land Survey Nos.
6768 were converted for nonagricultural purpose. The sale
index at Exh. 26 dated 03.09.1992 has not been relied upon
by the Reference Court, but it is in respect of Plot No. 14,
admeasuring 500 sq.ft., out of Survey Nos. 6768 for
consideration of Rs. 50,000/ by Ramesh Hari Pawar to
Sanjay Hari Pawar. The sale index at Exh. 27, dated
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09.09.1992 has also not been relied upon by the Reference
Court, but it is in respect of Plot No.10 admeasuring 437.11
sq.ft., out of survey No. 6768 by Mohan Kheru Chouhan to
Janusa Bhopasingh Powar for total consideration of
Rs.50,000/.
15] It is not understood as to how different persons
have executed sale deeds at Exh. 26 and Exh. 27 in respect
of different plots in the same survey number i.e. Survey No.
6768. The same is the case in respect of sales at Exh. 24
and 25 which are in respect of different plots in Survey No.
136/2. All these four transactions have taken place between
03.09.1992 and 16.10.1992 i.e. within a span of 1½ month
immediately preceding the date of issuance of notification on
23.03.1993 under Section 4 of the Land Acquisition Act for
acquiring land Survey No. 57 and 71, admeasuring 7.11
hectares at Digras for the purpose of rehabilitation of persons
from village Chincholi affected by Arunawati project, which
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are the subject matter of First Appeal Nos. 198/2005,
th
December,
185/2005, 212/2005 and 519/2004, decided on 9
2014.
16] Under Section 8 of the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act, 1947, the
transfers by way of sales creating fragment of small plots in
respect of an agricultural land without being converted for
nonagricultural purpose is prohibited. Such transfers
beocme void under Section 9 of the said Act. Similarly, the
agricultural lands cannot be transferred to nonagriculturist
without the permission of the Collector as required under
Section 89 of the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act. There is nothing on record to show
that the lands under sale deed at Exh. 24 to 27 were sold to
the agriculturists. The transfers reflected by sale indexes at
Exh. 24 to Exh. 27 do not appear to be bonafide apart from
the fact that they cannot constitute the basis for determining
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the true and correct market value of the lands in question
which admeasures 1.21 HR and the Reference Court has,
therefore, committed an error in relying upon such sale
deeds.
17] The layout plan produced on record is prepared
by PW1 Sachin Ade, the son of the claimant and the power
of attorney holder. It is marked as Article “A” and it is not
proved to establish the surrounding areas of the land under
acquisition, to decide as to whether the land in question
possesses non agricultural potentiality. Though the
Reference Court has recorded the finding that PW1 has
admitted in his cross examination that no documents are
produced on record to show the education, medical, banking
facilities and other developments were in existence at the
time of issuance of notification under Section 4 of the Land
Acquisition Act, it has committed an error in holding that the
land under acquisition has acquired nonagricultural
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potentiality. Though the claimant has examined two
witnesses, namely, Ramrao Bhoyar and Kishor Sarode, none
of them have deposed about the nonagricultural potentiality
of the land under acquisition. None of them have stated that
the land under acquisition was converted for nonagricultural
use or that on the said land a Polytechnic College or Deaf
and Dumb School is in existence since 1982 and 1991
respectively. The evidence of PW1 Sachin Ade regarding
nonagricultural potentiality of the land under acquisition does
not inspire confidence and should not have been relied upon
by the Reference Court.
18] Though the Reference Court has held that in
Land Acquisition Case Nos. 50 of 1991 and 51 of 1991, the
Court granted compensation to nonagricultural plots from the
same village at the rate of Rs.125/ per sq.ft., in spite of
search, we could not find anything in the record and
proceedings of the Reference Court in respect of the decision
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in said cases, so as to have comparison. There is no finding
that the so called nonagricultural plots in L.A.C. Nos. 50 of
1991 and 51 of 1991 are comparable with the land in
question.
19] In view of above, we are of the view that the
Reference under Section 18 of the Land Acquisition Act was
required to be dismissed by the Reference Court for failure to
prove the claim for enhancement of compensation. Not only
that, but we find that prima facie it is a case of fraud which is
played on the court to claim the enhanced compensation.
There also seems to be an internal connection with the claim
for enhancement of compensation in these cases and the
claim for enhancement of compensation in Land Acquisition
Case Nos. 210 of 1995 and 212 of 1993 for acquisition of
Survey Nos. 57, 71 and 73/1 of Mouza Digras, for the
purpose of rehabilitation of persons affected by Arunawati
project. We have decided First Appeal Nos. 198 of 2005 and
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th
December, 2014, arising out of it. The
185 of 2005 on 9
claimant in those first appeals is Shri Vasant Naik Education
Society through its Secretary, Shri Sachin Pratapsingh Ade,
who is the claimant in these First Appeal Nos. 67 of 2005 and
414 of 2007.
rd
December,
20] We have seen the affidavit dated 23
2014, sworn in by Rajendra Sakaharam Chitkulwar, the Naib
Tahsildar from the office of Sub Divisional Officer, Darwha,
filed in response to the order dated 15.12.2014 passed by this
Court. From his affidavit, it is apparent that in 1981, none of
the lands were converted for nonagricultural use in Taluka
Digras in the year 1981. There is misrepresentation of fact
that the lands were converted for nonagricultural purpose in
the year 1981. The claim for enhancement of compensation
in Reference also does not seem to have been defended
properly. In the award itself, we have noticed the fact that the
lands were converted for nonagricultural purpose in the year
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1981, which fact is found to be false.
21] In view of above, we dismiss First Appeal No. 67
of 2005 filed by the claimant Smt. Nirmalabai Pratapsingh
Ade and allow the First Appeal No. 414 of 2007 filed by the
State and pass further orders as under;
[i] The Reference under Section 18 of the Land
Acquisition Act registered as Land Acquisition
Case No. 18 of 1997 is hereby dismissed.
[ii] If any amount is deposited by the State
Government either in the Reference Court or in
this Court, the same is permitted to be withdrawn
by the State Government.
[iii] If any part of the amount is permitted to be
withdrawn by the claimant upon furnishing
solvent security, then the claimant is directed to
redeposit the said amount within a period of
three months from today along with interest at
the rate of 6% per annum from the date of
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withdrawal of such amount till its redeposit.
[iv] If such amount is not redeposited within the
stipulated time, the State Government can
proceed to recover it from the claimant as an
arrears of land revenue and/or by enforcing the
solvent security, if any.
[v] The Collector, Yavatmal, is directed to make an
enquiry and submit his report on the following
aspects.
(a) Whether the lands under acquisitions viz.
Survey No. 118/3, Survey No. 57 and 71
and Survey No. 73/1 of Digras were
converted for nonagricultural purpose
prior to the date of issuance of notification
under Section 4 of the Land Acquisition
Act, on 23.03.1993 and 07.01.1995.
(b) Whether the sale deeds at Exh. 24 to 27 in
Land Acquisition Case No. 18 of 1997 were
in respect of land converted for non
agricultural use and whether such sale
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deeds were hit by the provisions of Section
8 of the Bombay Prevention of
Fragmentation and Consolidation of
Holdings Act, 1947 and Section 89 of the
Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act.
(c) How many sale instances of agricultural
lands are registered in sale indexes of
Digras during 1988 to 1997, creating
fragment prohibited by Section 8 of the
Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, 1947.
(d) How sale transactions of small plots
out of agricultural lands at Digras were
registered in contravention of Section 8 of
the Bombay Prevention of Fragmentation
and Consolidation of Holdings Act, 1947.
(e) What steps the Collector can take if the
transfers are in violation of the aforestated
` provisions and what action he proposes to
take.
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(f) How much amount is paid to the claimants
pursuant to the order of Reference Court
and how does he propose to recover it.
[vi] The Collector, Yavatmal, to submit his report
within a period of three months from today to the
Registrar (Administration) of this Court who shall
bring it to the notice of this Court.
JUDGE JUDGE
Rvjalit.
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