Partly allowed

The State of Maharashtra. v. Shri Yeshwant Vasudeo Upadhe

Bombay HC22 Feb 2005FA/152/1993

Case brief

AI extract

What is this about?

In common appeals arising from a land acquisition for the Konkan Railway Project, this Court enhanced compensation from Rs.1,700 to Rs.3,000 per guntha based on land proximity. The Court held that the Collector should fix damages for pre-notification possession and ordered 9% interest on the enhanced amount.

What did the court decide?

Judgment of Reference Court modified. Compensation enhanced to Rs.30 per sq. meter. Claimants entitled to difference and 9% interest. Appeals by State dismissed.

The State of Maharashtra. Vs Shri Yeshwant Vasudeo Upadhe — Land Acquisition | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 152 OF 1993

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 The State of Maharashtra ..Appellants
 versus
 Yashwant Vasudeo Upadhye ..Respondent
AND
 FIRST APPEAL NO. 153 OF 1993

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 The State of Maharashtra ..Appellants

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 versus
 Prakash Saromal Jain ..Respondent
AND
FIRST APPEAL NO. 313 OF 1993

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 Yashwant Vasudev Ypadhya ..Appellant
 versus
 The Special Land Acquisition

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 Officer, Pen ..Respondents

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AND
 FIRST APPEAL NO. 73 OF 1993

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 Prakash Saromal Jain ..Appellant
 versus

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 The State of Maharashtra ..Respondents

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 Mr. S. N. Gawade, AGP for the State.
 Mr. G. V. Limaye, for Claimant in First Appeal
 Nos. 152 of 1993 and 313 of 1993.
 Mr. Rajiv Patil with Seema Sarnaik for Claimant.

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 in First Appeal Nos. 153 of 1993 and 73 of 1993

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 CORAM : D. G. DESHPANDE,J.
 DATE : 22ND FEBRUARY,2005

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ORAL ORDER :

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 1. All the four appeals arise out of a common
 judgment of the IVth Additional District Judge,
 Raigad at Alibag dated 17.7.1992. That judgment
 covers two L.A.R. Nos. 402 and 403 of 1987, two
 appeals have been filed by the State and two appeals
 have been filed by the claimants.

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 2. Those two References No. 402 and 403 of

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 1987 came to be decided by a common judgment because
 the purpose for acquisition of both the lands was
 common. The lands were acquired in one common land
 acquisition proceedings and the lands were adjacent
 and both the claimants requested the Reference Court
 to read the evidence commonly and to decide the

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 Reference by a common judgment.

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 3. The land was acquired for Konkan Railway
 Project for joining the road between Bombay Goa
 National Highway and the Railway Station Nagothane.
 Notification under Section 4 was dated 23.8.1984 and
 the award was passed on 4.11.986. The claimants
 were not satisfied with the compensation awarded and
 therefore two different References. Claimants
 claimed Rs.8,000/- per guntha. The Reference Court
 awarded Rs.1,700/- per guntha i.e. Rs.17/- per sq.
 meter. According to the State, the compensation
 awarded is higher, and according to the claimants in
 their respective appeals the compensation awarded is
 lower.

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 4. In paragraph 9 sub paragraph 12 the court
 considered two aspects, i.e. plus factor and the
 minus factor. Following are the plus factors :

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 . 1. Smallness of size.
 . 2. Proximity to a road
 . 3. Frontage on a road
 . 4. Nearness to developed locality
 . 5. Regular shape
 . 6. Level Vis-a-vis.
 . 7. Special value for an owner of an
 adjoining property to whom it may
 have some very special advantage.

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 The minus factors are as under:

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 1. Largeness of area

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 2. Situation in the interior at a

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 distance from the road.

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 3. Narrow strip of land with very small
 frontage compared to depth.

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 4. Lower level requiring the depressed
 portion to be filled up.

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 5. Remoteness from developed locality

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 6. Some special disadvantageous factor

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 which would deter a purchaser.

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 5. Claimants relied upon six sale instances as
 enumerated in paragraph 12 of the judgment of the
 Reference Court. Out of these, only one Reference
 is of the period prior to the Notification under
 Section 4 and other sale instances are subsequent
 thereto. The court however observed that both the
 lands under Reference are situate in between Bombay
 Goa National Highway and Railway Station of
 Nagothane, from Nagothane Railway Station Highway is
 at about 200 meters distance and between this strip
 of lands the acquired land was situate. Nagothane
 Railway Station is at about 1 1/2 km. distance,
 IPCL is at about 1 km. distance. There was a saw
 mill adjoining this land and the court came to the
 conclusion that the lands were situate at a very
 important location, it could be utilized for

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 commercial and industrial purpose having National
 potentiality. The court also considered that there
 was one disadvantage, viz. that the land being
 closed to National Highway there were restrictions
 of construction and for that purpose claimant have
 to keep open some part of the lands that is about 15
 to 30 meter.

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 6. The claimants examined Jeevan Kulkarni, who

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 has submitted his report at Exhibit 22. According
 to his evidence the Government of India has
 announced the Project known as IPCL based on gas
 which was available from Arabian sea. The actual
 work was started in 1983 and it was decided to
 acquire about 750 Hectares of land. IPCL project
 was situate at l k.m. away from the land under
 reference, and, therefore because of this
 declaration of the project, the price of lands had
 increased.

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 7. The claimants tendered on record merely
 certified copies of sale instances and agreements of
 sale but they did not examine any seller or
 purchaser. Excepting the first sale instance dated
 17.4.1984 wherein 300 sq. meters of land was sold
 for Rs.12,000/- rate per sq. foot being Rs.40/-.
 But the Reference Court has rightly held that to
 gain advantage from the sale deeds so brought on

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 record, it was necessary for the claimants to

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 examine the vendor and vendee because it was only
 the oral evidence of either the vendor or vendee
 that there could have been some light on the quality
 of the land which was the subject matter of the
 sale, their location and potentiality, and they were
 willing purchasers and buyers, and the purpose of
 buying the land. In these circumstances of the
 matter the court had to rely upon one sale deed
 dated 17.4.1987 because that was prior to the date
 of notification under Section 4. Sale deeds
 subsequent to the said notification were rightly not
 considered by the Reference Court. Regarding the
 sale deed the court found that it was only in
 respect of very very small portion of land i.e. 300
 sq. meters and therefore that price of Rs.40/- per
 sq.meter could not be taken into consideration in
 the instant case. The court came to the conclusion
 that the acquired land is of good NA potentiality
 and the price awarded by the SLAO was not adequate.
 It also came to the conclusion that the price of
 Rs.8,000/- per guntha demanded by the claimant was
 also not justified nor proved. The Reference Court
 therefore fixed compensation at Rs.1,700/- per
 guntha.

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 8. From the evidence of the claimant and his
 expert Jeevan Kulkarni, it is clear that the

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 acquired land has big non agricultural potentiality,

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 they are adjacent to and frontage of National
 Highway No.17 i.e. Bombay Goa Road or Bombay Panaji
 Highway. They are between railway line and the
 Highway, it is situate in Village Nagothane and
 exactly between National Highway No.17 and Bombay
 Konkan Railway, the distance between Railway and
 Highway is 500 ft. only. The claimant has stated
 in his evidence that further the land is plain does
 not require any development expenditure, the saw
 mill of the claimant Prakash in First Appeal No.
 153 of 1993 and 73 of 1993 was adjacent to the land
 and to the north of this land there was a biscuit
 factory.

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 9. This court had in First Appeal Nos. 695 of
 1992 and others relied upon the Judgment of the
 Division Bench of this court in Group of Appeals,
 viz. Appeal No. 875 of 1985 and others, wherein
 the proximity of the land to the National Highway
 was one of the most important consideration. The
 Division Bench has on the basis of the proximity
 fixed the land value between Rs.17 to Rs.25/- per
 sq. meter. Therefore, considering the situation of

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 this land, compensation awarded by the Reference
 Court is required to be enhanced and as such on the
 basis of the aforesaid ratio of the Division Bench
 Rs.30/- per sq. meter or Rs.3,000/- per guntha

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 would be a proper valuation.

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 10. Learned AGP further contended that in view

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 of the Judgment of the Supreme Court reported in
(2004) 4 Supreme Court Cases 79 R. L. Jain (D) by

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LRs. vs. DDA and others, that the claimants are
 not entitled to any interest and according to him if
 at all possession is taken prior to the date of
 Notification then as per paragraph 18 of the
 aforesaid judgment, the claimants can go before the
 Collector and claim damages. Paragraph 18 of the
 Judgment is as under:

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"In a case where the landowner is
dispossessed prior to the issuance of
preliminary notification under Section 4(1)
of the Act the Government merely takes
possession of the land but the title thereof
continues to vest with the landowner. It is
fully open for the landowner to recover the
possession of his land by taking appropriate
legal proceedings. He is therefore only
entitled to get rent or damages for use and
occupation for the period the Government
retains possession of the property. Where
possession is taken prior to the issuance of
the preliminary notification, in our
opinion, it will be just and eqjuitable

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that the Collector may also determine the
rent or damages for use of the property to
which the landowner is entitled while
determining the compensatkion amount payable
to the landowner for the acquiisition of the
property. The provisions of Section 48 of
the Act lend support to such a course of
action. For delayed payment of such amount
appropriate interest at prevailing bank rate
may be awarded."

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 11. As against this, counsel for the claimants

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 contended that in fact proper reading of the
 aforesaid paragraph will show that it was the duty
 of the Collector to award damages to the claimants
 for taking possession before Notification. In this
 case date of notificatiion is 23.8.1984 and the
 possession is taken on 17.10.1983 and therefore
 while fixing compensation, the Collector should have
 given damages. He however contended that now after
 so many years it would not be proepr to ask the
 claimants to approach the Collector for seeking
 damages, but claimants would be satisfied if instead
 interest is awarded to them. He contended that even
 if now matter goes back to the Collector for fixing
 damages, the State will have to bear interest for
 delayed payment.

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 12. I find justification in the submissions made

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 by the counsel for the claimants. Admittedly for
 the period between the date of Notification and
 taking possession, no damages have been awarded to
 the claimants, to which the claimants were actually
 entitled to, in view of the aforesaid judgment of
 the Supreme Court. Therefore, if the matter is
 remanded, the Collector will have to fix the amount
 of damages and the State will have to pay that
 amount along with interest from the date of taking
 possession till today. Instead of doing that, the
 claimants can be adequately compensated by awarding
 interest.

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 11. In the result, I pass the following order:

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ORDER

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 . Appeals filed by the State are dismissed.

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 . Appeals filed by the claimants are partly
 allowed.

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 . Judgment of the Reference Court is modified.
 The claimants will be entitled to compensation at
 the rate of Rs.3,000/- per guntha in respect of the
 acquired land. Consequently, claimants will be
 entitled to recover difference between Rs.1,700/- to

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 Rs.3,000/- from the State. The

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 claimants will also be entitled to 9% interest on
 the enhanced amount from the date of possession.

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 . No order as to costs.

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 22.2.2005 ( D.G. DESHPANDE,J.)

The State of Maharashtra. v. Shri Yeshwant Vasudeo Upadhe

Case brief

What is this about?

What did the court decide?

The State of Maharashtra. v. Shri Yeshwant Vasudeo Upadhe

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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