The State of Maharashtra Vs Shri Namdeo Pandurang Sutar

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 FIRST APPEAL NO. 505 OF 1987
 IN
 L.A.R. NO. 115 OF 1984

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 The State of Maharashtra ...Appellant
 (Orig.Opponent)
 V/s.

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 Namdeo Pandurang Sutar
 R/o. Takli, Tal.Karmala ...Respondent
 (Orig.Claimant)

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 Mr.Bharat Mehta, AGP for the Appellant.
 Mr.Rahul S. Kate for the Respondent.

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CORAM : V.M. KANADE, J.
DATED : OCTOBER 8, 2007

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ORAL JUDGMENT :-

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 . Heard the learned APP for the State and the
 learned Counsel for the respondents.

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 2. The appellant - State of Maharashtra is
 challenging the judgment and order passed by the
 Reference Court dated 3rd June, 1985 in LAR No.100/84.

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 3. Brief facts are that a vast extent of land

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 located at Village Takli, Tal.Karmala, Dist.Solapur was
 acquired for Ujani project. The Reference court vide

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 its judgment and order awarded additional compensation
 of Rs.34,293.75 and also granted additional amount
 calculated at the rate of 12% on the market value from
 the date of notification under Section 4 plus 30%
 solatium on the additional amount and 15% solatium on
 the amount awarded by the SLAO. It is an admitted
 position that in respect of other similarly situated
 acquisitions, the State of Maharashtra has preferred
 Appeal No.477/87 and these appeals were dismissed by the
 Division Bench of this Court (Coram : V.S. Kotwal and
 N.P. Chapalgaonkar, JJ.) by judgment and order dated
 26th February, 1990 in First Appeal No.477/87.

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 4. Though the learned APP for the State strenuously
 urged that the compensation awarded by the Reference
 court was excessive on various grounds, these
 submissions cannot be accepted since all these points
 were considered by the Division Bench in First Appeal
 No.477/87. There is, therefore, no merit in the
 submissions made by the learned APP for the State.

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 5. The learned APP, Shri Mehta further submitted

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 that the Reference Court erred in awarding interest at
 the rate of 12% as per the amended provisions of Section
 23(1-A). It is submitted that the Apex Court in the
 case of Kashiben Bhikabai and others v/s. Special Land
Acquisition Officer and another, reported in (2002) 2
SCC 605, has held that additional compensation of 12%
 would not be available to the claimant whereby the award
 was made prior to 30.4.82. It is an admitted position
 in this case that award was passed prior to 30.4.82.
 The Apex Court in para 17 of the said judgment has
 observed as under :-

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 "Counsel appearing for the claimants contended
 that the claimants would be entitled to an
 additional compensation @ 12% as provided under
 Section 23(1-A) of the Act. This contention
 cannot be accepted in view of a Bench decision
 of this Court in Union of India v. Filip Tiago
 De Gama of Vedem Vasco De Gama (1990) 1 SCC 277
 which held that additional compensation under
 Section 23(1-A) of the Act would not be
 available to a claimant in which the acquisition
 proceedings commenced and the award was made by
 the Collector prior to 30-4-1982. If the
 Collector made the award before 30-4-1982 then
 the additional amount under Section 23(1-A)
 cannot be awarded. The pendency of the
 acquisition proceedings on 30-4-1982 before the
 Collector was essential for attracting the
 benefit under Section 23(1-A) of the Act. It
 was held: (SCC pp.286-87, para 21)

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 "21. Entitlement of additional amount
 provided under Section 23(1-A) depends
 upon pendency of acquisition proceedings
 as on 30-4-1982 or commencement of
 acquisition proceedings after that date.
 Section 30 sub-section (1)(a) provides
 that additional amount provided under
 Section 23(1-A) shall be applicable to
 acquisition proceedings pending before
 the Collector as on 30-4-1982 in which
 he has not made the award before that
 date. If the Collector has made the
 award before that date then, that
 additional amount cannot be awarded.
 Section 30 sub-section (1)(b) provides
 that Section 23(1-A) shall be applicable
 to every acquisition proceedings
 commenced after 30-4-1982 irrespective
 of the fact whether the Collector has
 made an award or not before 24-9-1984.
 The final point to note is that Section
 30 sub-section (1) does not refer to
 court award and the court award is used
 only in Section 30 sub-section (2)."

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 No judgment taking a contrary view to the above-referred
 case was cited before us. Accordingly, it is held that
 the appellants would not be entitled to the additional
 compensation provided under Section 23(1-A) of the Act."

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 6. The ratio of the said judgment, in my view,

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 squarely apply to the facts of the present case and as
 such, an additional compensation awarded and the rate of
 12% will not be available to the claimant and to that
 extent, the order of reference will stand modify.

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 7. Shri Mehta, learned APP for the State further
 submitted that 30% solatium also would not be available
 to the claimant. This submission, however, cannot be
 accepted since the Apex Court in the case of Kashiben
Bhikabai (supra) has held that in cases where order of
 reference is made after coming into force of the
 amendments introduced by Amending Act, 1984, claimant
 would be entitled to statutory solatium of 30% under
 Section 23(2) as amended. In para 16 of the said

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 judgment, the Apex Court has observed as under :-

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 "From the map shown to us we find that the
 acquired land is not far away from Surveys Nos.8
 and 9. The total distance between the two may
 not be more than 60 to 70 yd from each other.
 Keeping these factors in view, we are of the
 opinion that the prevailing market price in the
 first week of December 1973 of the acquired land
 was Rs.2.38 per sq ft. In May 1974 when the
 notification under Section 4 was issued the
 price may have been a little higher than Rs.2.38
 per sq ft as rapid development was taking place
 in and around the area where the land under
 reference was situated. Land comprising in
 Survey No. 8 which was sold, measured 2800 sq
 yd. Keeping in view the fact that large areas
 of land do not fetch the same price as a small
 piece of land and a large amount is required to
 be spent for developing the land, we fix the
 price of land at Rs.2.00 per sq ft instead of
 Rs.1.88 per sq ft, thus enhancing the
 compensation by Rs.0.12 per sq ft. The

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 claimants would be entitled to statutory
 solatium @ 30% as has been held by a
 Constitution Bench of this Court in Union of
 India v. Raghubir Singh (1989) 2 SCC 754 as the
 award of the Reference Court was made after the
 coming into force of the amendments introduced
 by the amending Act of 1984."

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 8. Thus, this submission made by the learned APP

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 for the State cannot be accepted. In the result, the
 First Appeal is partly allowed. The additional
 compensation paid to the claimant at the rate of 12% on
 the market value from the date of notification under
 Section 4, therefore, will not be available to the
 claimant. The said amount of Rs.28,857.65 will be
 deducted from the judgment and award by the Reference
 court. Rest of the award is confirmed.

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 9. Appeal is partly allowed in the above terms.
 Under the circumstances, there shall be no order as to
 costs.

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(V.M. KANADE, J.)

The State of Maharashtra v. Shri Namdeo Pandurang Sutar

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The State of Maharashtra v. Shri Namdeo Pandurang Sutar

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