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Chatusshakhiya Brahmavrinda Gayaran Trust and ors. Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberFirst Appeal Nos. 114, 115, 116, 117, 118, 119, 301, 302, 303, 304, 305, 306, 307 and 308 of 1965 an
Judge
Reported inAIR1970Bom18
ActsRequisitioning and Acquisition of Immovable Property Act, 1952 - Sections 7, 8(1) and 8(3); Defence of India Rules, 1959 - Rules 9(3) and 75
AppellantChatusshakhiya Brahmavrinda Gayaran Trust and ors.
RespondentUnion of India
Appellant AdvocateV.M. Limaye, Adv. in No. 15/66, ;Govt. Pleader in Nos. 114 to 119/65 and ;R.R. Jahagirdar, Adv. in Nos. 301, 303 to 308/65
Respondent AdvocateV.H. Gumaste and ;M.A. Rane, Advs., ;R.R. Jahagirdar, Adv. in Nos. 114 and 117/65, ;Govt. Pleader in Nos. 301 and 303 to 308/65 and ;V.M. Limaye, Adv. in Nos. 118 and 119/65
Excerpt:
.....was already under requisition for nearly 12 years, and the land was about to be developed as a building land - it was adjudged under section 8(3) of the requisitioning and acquisition of immovable property act, 1952, that while determining the compensation, the building and the development potentiality of the acquired land should be considered as it would also increase its market value - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason..........us. on behalf of the union of india, reliance is placed mainly on two sale instances, the relevantsale deeds being at exhs. 54 and 74. by the sale-deed exh. 54, 37 gunthas out of s. no. 45/4 at deolali village were sold for rs. 2,200 on 14-3-1955 by tukaram sakharam jachak and his two brothers to ramchandra bhavaji khole. the rate works out at rs. 2,378 per acre. the recitals in the sale-deed, exh. 54, show that the land covered by that sale-deed was bagayat land, it was assessed at rs. 3-11-0. before the arbitrator this sale-deed was produced and relied upon by the claimants. the claimants have examined the purchaser ramchandra bhavaji khole. his evidence is at exh. 52. the evidence of khole shows that the land was in his possession as a tenant before he purchased the same. he,.....
Judgment:

Chitale, J.

1. This is a group of appeals preferred by the claimants, as well as by the Union of India against the decision of the learned Arbitrator appointed under the provisions of the Requisitioning and Acquisition of Immovable Property Act, (Central Act No. XXX of 1952), awarding compensation for several lands that were acquired by the Union of India.

2. The lands that are acquired are out Of Survey Nos. 35, 44, 45, 46, 51, 52, 55, 56,58. 61. 62. 73 and 118 at Wadala, Taluka and District Nasik. These lands were requisitioned under Rule 75(a) of the Defence of India Rules, 1959 by notifications issued on 12-1-1943, 8th February 1943, on 2nd December 1943 and on 20th April 1944 for military purposes. By a notification dated 24-8-1955 published in the Government Gazette on 8-9-1955, these lands were acquired under Section 7 of the abovementioned Act. The owners of these lands were informed about the amounts of compensation offered by the Union of India, as per Rule 9(3) of the Rules framed under the above-mentioned Act. The owners of these lands, however, did not find the compensation offered to be adequate and they required the Government to have the amount of compensation fixed by an Arbitrator. In exercise of the powers of the Central Government under Section 8(1)(b) of the abovementioned Act, the Central Government delegated to the State of Maharashtra, the power to appoint an Arbitrator by a Notification dated 10-10-1960. Accordingly the State of Maharashtra appointed the Civil Judge, Senior Division, Nasik as the Arbitrator in this case to determine the amount of compensation.

3. Some of the lands acquired are Kharif, some are Rabi and some of them are Bagayat i. e. garden lands also. The compensation offered by the Union of India was at the rate of Rs. 400 per acre for Kharif land, Rs. 600 per acre for Rabi and Rs. 900 per acre for Bagayat land. No compensation was offered for Kharaba i. e. uncultivable portion of the land.

4. The various claimants claimed compensation at much higher rates before the Arbitrator. The learned Arbitrator in view of the provisions of Section 8(3) of the abovementioned Act determined the market price of the lands in question on the date of acquisition and also the price which the lands would have fetched in the open market on the date of the requisition. On consideration of the evidence led before him, the learned Arbitrator found that the compensation calculated at double the market price at the time of requisition was less, hence in view of Section 8(3) of the abovementioned Act, he awarded compensation at that rate.

5. In view of the decision in : AIR1966Bom36 , it is unnecessary for us to consider the market price on the date of the requisition and we shall proceed to consider the market price of the acquired lands on the date of acquisition.

6. We shall deal with the sale instances that are relied upon before us. On behalf of the Union of India, reliance is placed mainly on two sale instances, the relevantsale deeds being at Exhs. 54 and 74. By the sale-deed Exh. 54, 37 gunthas out of S. No. 45/4 at Deolali village were sold for Rs. 2,200 on 14-3-1955 by Tukaram Sakharam Jachak and his two brothers to Ramchandra Bhavaji Khole. The rate works out at Rs. 2,378 per acre. The recitals in the sale-deed, Exh. 54, show that the land covered by that sale-deed was Bagayat land, it was assessed at Rs. 3-11-0. Before the Arbitrator this sale-deed was produced and relied upon by the claimants. The claimants have examined the purchaser Ramchandra Bhavaji Khole. His evidence is at Exh. 52. The evidence of Khole shows that the land was in his possession as a tenant before he purchased the same. He, however, says that it was not purchased in his capacity as a tenant, but as a relation of the vendors. The price paid was according to the market-rate then prevailing. He further says that the land purchased by him has the right to take water from a well in other land, the water from that well was sufficient to water two parts of land. In the cross-examination, it is brought out that the land purchased is half a mile away from Deolali village, it adjoins Deolali-Nasik Road. Deolali is about four miles away from village, Vadala. There is an aerodrome near Vadala. Khole admits that he had other land close to the land purchased, hence it was convenient to him. The sketch showing situation of the various acquired lands with reference to village Vadala. Deolali, Nasik City, Nasik-Pune Raod, Deolali-Nasik Road etc.is at Exh. 118. From that sketch it will be seen that Survey No. 45 is to the west of and just behind Survey No. 44. Survey No. 43A adjoins Nasik-Pune Road. Behind Survey No. 43A to the west is Survey No. 44. Thus from the sketch it is clear that Survey No. 45 is about half a mile away from Nasik-Pune Road. The learned Arbitrator was in our opinion, right in holding this Sale (Exh. 54) as a comparable instance. We may further mention that considering the situation of this land -- S. No. 45 -- it can be said that has some building potentiality --though not as much as the lands adjoining Nasik-Pune Road.

7. Exh. No. 72 is a sale-deed dated 7-7-1954 by which 7 acres and 10 gunthas of land from S. No. 113/1 of Vadala were sold by Shankar Mohanraj Patil to Shivram Laxman Tidke for Rs. 7,000. The rate works out roughly at Rs. 1,000 per acre. The lands covered by the sale-deed are partly Bagayat and partly Jirayat. The recitals in the sale-deed show that the purchaser was the tenant in possession. In consideration of this sale, the purchaser-tenant surrendered a portion on the side of the village-site in favour of the landlord-vendor. The evidence of vendee Shivram Laxman Tidke is at Exh. 71. His evidence shows that he was in possession of 5 acres and 8 gunthas as a protected tenant. His cross-examination shows that the land purchased is inferior. It is 1 1/2 miles away from Nasik-Pune Road. The assessment of the land purchased is roughly Rs. 2 per acre. The sketch Exh. 118 shows that Survey No. 113 is at a considerable distance -- more than 1 1/2 miles from Nasik-Pune Road, Although it is near the village-site of Vadala, it is surrounded by lands of others and it does not seem to have any direct access to the road. In view of the circumstances mentioned above, the sale-deed Exh. 72, does not furnish a comparable instance. The finding of the learned Arbitrator in this respect seems to be correct,

8. On behalf of the claimants, reliance is placed upon the sale instances furnished by the sale-deeds, which are at Exhs, 62, 67, 86 and 57. Exh. 57 is a sale-deed dated 3-104959 by which 1 acre and 35 gunthas out of Survey No. 849, which is within Municipal limits of Nasik, were sold by Babre Vibhag Jungle Kamgar Sahakari Sangh Ltd. to Vedu Vaman Kashmir Mali for Rs. 3,750. The rate works out roughly at Rs. 2,000 per acre, The evidence shows that there was a timber depot in this land and other timber depots in the adjoining land Survey No. 850. The land purchased by the sale-deed was grass land. The vendee Vedu Vaman Kashmir Mali is examined. His evidence is at Exh. 55. In the cross-examination, it is brought out that the land purchased by the sale-deed is about 2 furlongs away from Ambedkar Colony. It further shows that there is an approach road to the land from Nasik-Pune Road. There were two mango trees, a tamarind tree and some small limb trees in the land. The sketch Exh. 118 shows the situation of Survey No. 849. It is much nearer to Nasik City than the lands, acquired in this case. It is also much nearer to Nasik-Pune Road. Thus the land sold by Exh. 57 viz. Survey No. 849 enjoys much more advantageous situation than that of the lands acquired. Moreover the sale is of 1959 i. e. nearly four years after the date of the acquisition in this case. Hence the rate indicated by this instance will not be of much use while considering the question of compensation for the lands in question.

9. Exh. 62 is a sale-deed dated 19-10-1953, by which 760 sq. yards out of Survey No, 119/A2/2-B of Vadala were purchased for Rs. 2,000 by Shridhar Narayana Joshi from Chiman Shankar Shelke. The rate works out roughly at Rs. 12,736 per acre. The sketch Exh, 118 showsthat Survey No, 119 is more prominently situated than the lands in question. Part of it adjoins Nasik-Pune Road. Even its rear part is hardly a furlong away from that road. It is also nearer to Nasik City than the lands in question. The recitals in the sale-deed Exh. 62 indicate that the land covered by this sale-deed is a developed land divided into plots. The sale-deed relates only to one plot measuring 760 sq. yards. The evidence of the vendee Shridhar Narayan Joshi is at Exh. 59. His evidence further shows that the land was a developed land, divided into several plots and the plot purchased by him was the plot of land adjoining to and to the west of Nasik-Pune Road. These plots are situated on Nasik side of Ambedkar Colony. The lands acquired in this case are agricultural lands and while determining compensation for the same, the sale-deed, Exh. 62, which relates to a plot in a developed land divided into plois, would not be a proper guide to determine the amount of compensation for the acquired lands.

10. Exh. 67 is a sale-deed dated 11-6-1954 by which Mohammad Hussain Bohari sold to Fakruddin Bohari 35 gunthas out of Survey No. 39-A/7 of Vadala for Rs. 6,000. The rate works out roughly at Rs. 6,867 per acre. What we have observed about the sale-deed Exh. .62 applies with greater force to the sale-deed Exh. 67. The sketch Exh. 118 shows that Survey No. 39 adjoins Nasik-Pune Road, The evidence of the purchaser Fakruddin Kikabhai, which is at Exh. 66, shows that the vendor was indebted to him and the land was purchased only for the amount due from the vendor. This seems to be a forced sale. Although this sale relates to the year 1954, considering the situation of the land covered by Exh. 67, which is not comparable to the lands acquired, we do not think that this instance will be useful in determining the amount o compensation for the acquired lands.

11. The next sale instance relied upon is the one furnished by the sale-deed, Exh. 86. It is a sale-deed dated 9-8-1954 by which Madhavrao Krishnaii Sagale sold to Sirajoddin Mohiuddin Kokir land S. No. 43-A/2 admeasuring 1 acre 15 gunthas for Rs. 6,500. The rate works out roughly at Rs. 4,727 per acre. The sale-deed Ex. 86 shows that the land purchased was assessed at Re. 00-12-6. The sketch Exh. 118 shows that Survey No. 43-A/2 adjoins Nasik-Pune Road. The prominent situation of this Survey number cannot be compared with the situation of all the lands acquired in this case. Hence this instance will not be of much use in determining the amount of compensation for the acquired lands except those that are situated near S. No. 43.

12. On behalf of the claimants our attention was further invited to the sale-deed Exh. 65 which shows that the land purchased by Fakruddin Kikabhai Bohari by Exh. 67, was sold by him on 11th January 1963 for Rs. 16,000. Relying on this sale-deed, Mr. Jahagirdar contends that it shows that the prices were steadily rising and within 9 years the price was more than 2 1/2 times. That may be so, but as already pointed out, the situation of the land covered by Exhs. 65 and 67 being entirely different from the situation of the lands in question, the sale-deed Ex. 65 also will not be a proper guide in determining the amount of compensation for the acquired lands. There is no warrant for the assumption that prices of lands less favourably situated also rose in the same proportion.

13. These are the only instances relied upon by the parties before us. With regard to the rest of the instances, the observations of the learned Arbitrator in that respect are not challenged before us. We find these observations to be substantially correct so far as the quality and situation of the lands covered by the instances are concerned. The learned Arbitrator in para 54 of his judgment observes:

'It was, however, urged on behalf of the claimants that even the sale instances of lands having building potentiality would be required to be taken into account for assessing the market value of the acquired lands, because there had been much development and building activity in the nearabout locality by the year 1955. It was tried to be argued that though the acquired lands could have continued to be in the same condition in which they were at the time of requisition, that is to say, even if they had continued to be only jirait lands used for agriculture, still then they would have acquired some building potentiality in view of the fact that sufficient building activity had come into existence in the surrounding locality by the year 1955. It is, however, doubtful whether this argument adduced on behalf of the claimants can be wholly accepted. If the acquired lands had continued to remain in the same condition and would have been used in the year 1943, when they were requisitioned, it does not seem possible that they would have fetched in the year 1955 the same rate of price, which a developed land or a land possessing sufficient building potentiality would have fetched. At the most it can be said that the lands because of the subsequent development in the nearby locality would have been considered to possess some distant building potentiality. The instances of lands, which are got converted to non-agricultural use or, which are developed and in which plots have been laid.cannot, therefore, be considered as comparable instances for assessing the land value of the acquired lands in the year 1955.'

14. We are unable to accept wholly the reasoning adopted by the learned Arbitrator, as indicated by the above observation. On behalf of the Union of India reliance is placed on Sub-section (3)(a) of Section 8 of Central Act XXX of 1952. The lands being under requisition right up to the date of acquisition would no doubt remain in the same condition as they were on the date of requisition. What Sub-section (3)(a) contemplates is that the amount of compensation should not be determined on the assumption that the building activity of which the acquired lands were capable should be deemed to have been carried out. From this, it does not, however, necessarily follow that potential building capacity of the acquired lands in view of the development and building activity around or near the acquired lands and consequent rise in the market-price of acquired lands should not be taken into account. The fact that there has been a general rise in prices of lands is recognised by Sub-section (31 (b) of Section 8 itself. There can also be no doubt that if building activity and consequent development goes on on the lands near or round about the acquired lands, the building and development potentiality of the requisitioned and subsequently acquired lands in question would also increase and there would be a consequent rise in the market-price thereof in spite of the fact that they remain unbuilt or undeveloped because of continued requisition. It would not. therefore, be correct to say that the acquired lands in this case have merely 'some distant building potentiality.' Whether they have acquired building potentiality or not would depend upon their situation and the building activity and consequent development of other lands near-about. We shall examine the claims of the claimants in these appeals from this point of view, bearing in mind the sale-instances relied upon by either side with the comments in that respect by either side.

15-26. We shall now proceed to consider the claims in each of these first appeals:--

(After considering the evidence in this regard his Lordship proceeded).

27. As indicated above, the learned

Arbitrator took the view that all the lands in question have only a distant building potentiality, in our opinion this view is not wholly correct. When sale-instances are not much helpful, while determining the amount of compensation, due importance must be given to situation of each land, whether it is prominent or otherwise, must be considered taking Into account the building activity and consequent development near or round about the acquired lands. This would certainly be relevant while considering building potentiality of the acquired lands.

28. For reasons indicated above, we pass the following order:--

29. First Appeals Nos. 114 to 119 of 1965 preferred by the Union of India fail

and they are dismissed with costs.

30. We modify the award passed by the learned Arbitrator as follows:--

Appeal No.Arbitration Case No.Amount awarded by the Arbitrator

Rs.Amount awarded by this Court

Rs.

First Appeal No. 301 of 1965A. C. No. 23/6112,987-5017,537-50First Appeal No. 302 of 1935A. C. No. 23/617,012-5010,005-00First Appeal No. 308 of 1965No. 4/61 12.987-5017,537-50First Appeal No. 305 of 1965 No. 33/61 First Appeal No. 304 of 196SNo. 14/6113.882-5015,870-00First Appeal No. 306 of. 196SNo. 11/619,012-5012,875-00First Appeal No. 307 of 1985No. 36/616,512-506,512-50First Appeal No. 15 of 1966No. 7/8159,500-001,40,930-50

The amounts awarded in First Appeals Nos. 303 and 305 of 1965 shall be paid to the claimants according to the final decision of the Arbitrator as mentioned above. The balance shall be returned to the Collector. There will be some balance because the claimants in Arbitration Case No. 1 of 1961 did not prefer an appeal and they would not be entitled to the enhanced rate awarded by us. The claimants whose appeals are partially allowed shall get proportionate costs.

31. modified.


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