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State of Maharashtra Vs. Vishwanathrao Parshuram Mali - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 940 of 1980 and Civil Appln. No. 980 of 1983
Judge
Reported inAIR1983Bom313; 1983(2)BomCR19
ActsLand Acquisition Act, 1894 - Sections 25(2), 54 and 91
AppellantState of Maharashtra
RespondentVishwanathrao Parshuram Mali
Appellant AdvocateM.R. Kotwal, Govt. Pleader
Respondent AdvocateS.G. Page, Adv.
Excerpt:
.....govardhan mohoto's case air1979sc1246 .however, it cannot be forgotten that section 25(2) of the land acquisition act in terms confers a discretion upon the civil court to entertain such a claim, if the claimant has refused to make such a claim or has omitted to do so because of sufficient reasons. in considering whether the reason urged is be led by consideration of good faith in the conduct of the party. if the party is shown to be vigilant all along and not negligent and there is no absence of good faith on his part, that may be a good reason for admitting the claim. 5. in this context we would like to draw the attention of the land acquisition officer towards the instruction and recommendations incorporated in manual of land acquisition, published by the government of maharashtra...........the award passed by the joint civil judge, senior division, sangli dated 2nd january, 1980 in the land acquisition case no. 4 of 1976. it is an admitted position that at the instance of the municipal council, tasgaon the land belonging to respondent vishwanathrao parshuram mali bearing c. t. s. no. 1588 was acquired for the purpose of a vegetable market. the notification under section 4 of the land acquisition act was issued on 14th of may 1972. the respondent-claimant had protested against the acquisition itself. however, his objection was overruled. ultimately land came to be acquired and the land acquisition officer by his award dated 17-2-1975 determined the compensation at the rate of rs. 17-50 per square meter. being aggrieved by this award the claimant sought a reference under.....
Judgment:

Dharmadhijkari, J.

1. This is an appeal filed by the State Government against the Award passed by the Joint Civil Judge, Senior Division, Sangli dated 2nd January, 1980 in the Land Acquisition Case No. 4 of 1976. It is an admitted position that at the instance of the Municipal Council, Tasgaon the land belonging to Respondent Vishwanathrao Parshuram Mali bearing C. T. S. No. 1588 was acquired for the purpose of a vegetable market. The notification under Section 4 of the Land Acquisition Act was issued on 14th of May 1972. The respondent-claimant had protested against the acquisition itself. However, his objection was overruled. Ultimately land came to be acquired and the Land Acquisition Officer by his Award dated 17-2-1975 determined the compensation at the rate of Rs. 17-50 per square meter. Being aggrieved by this Award the claimant sought a reference under Section 13 of the Land Acquisition Act and the Civil Court by the impugned award determined the compensation at the rate of Rs. 35/- per sq. meter and granted an additional compensation of Rs. 24,728-60P. together with the solatium and interest at the rate of Rs. 5/- per cent per annum from the date of the order to the date of recovery of the amount. As already observed, being aggrieved by this Award of the Civil Court, the present appeal is filed by the State Government.

2. Shri Kotwal, learned Government Pleader contended before us that the Civil Court committed an error in coming to the conclusion that the respondent claimant had omitted to make a claim in pursuance to the notice given under Section 9 of the Act for sufficient reasons. according to Shri Kotwal, since the claimant had either refused or omitted, without sufficient cause to make the claim, he was not entitled to any enhanced or additional compensation in view of the provisions of Section 25(2) of the Land Acquisition Act. In support of this contention Shri Kotwal has placed reliance upon the Division Bench decision of this Court in State of Maharashtra v. Shantabai : AIR1980Bom36 , Govardhan v. State of Bihar, : AIR1979SC1246 and State of Kerala v. Kocheeppan, : AIR1981Ker137 (FB). Shri Kotwal has also contended that the enhanced compensation granted by the Civil Court is not based on any material or evidence on record and has been determined arbitrarily. The learned trial Judge has practically doubled the compensation without any material or evidence in support of it. He then contended that in any case the learned trial Judge committed an error in granting interest at the rate of Rs. 5/- per cent per annum which is obviously contrary to the provisions of Section 28 of the Land Acquisition Act.

3. On the other hand, Shri, Page, learned Counsel appearing for the respondent claimant, contended before us that the learned trial Judge was right in coming to the conclusion that the claimant omitted to make a claim after the receipt of the notice under Section 9 of the Act for sufficient reasons. He also contended that since the discretion has been exercised by the trial Court judiciously, this is not a fit case, where this Court should interfere with the said discretion in an appeal. In support of this contention, Shri page has placed reliance upon the very decision of the Kerala High Court, viz., State of Kerala v. Kocheeppan : AIR1981Ker137 (FB) as well as the decision of Karnataka High Court in AIR 1974 Kan 74. so far as the merits of the claim are concerned, it is contended by Shri Page that after taking into consideration the relevant sale transactions, the learned trail Judge had determined the compensation at the rate of Rs. 35/- per sq. meter, which is also on the lower side. Therefore, according to Shri Page, the compensation legal and valid and no interference is called for with the said Award in this First Appeal.

4. So far as the first contention raised by Shri Kotwal is concerned, the law is by now well settled in view of the Division Bench decision of this Court in State v. Shantabai, : AIR1980Bom36 as well as the decision of the Supreme Court in Govardhan Mohoto's case : AIR1979SC1246 . However, it cannot be forgotten that Section 25(2) of the Land Acquisition Act in terms confers a discretion upon the Civil Court to entertain such a claim, if the claimant has refused to make such a claim or has omitted to do so because of sufficient reasons. Similar phraseology has been used in sub-section (3) of Section 25(2) of the Act must obviously depend upon the facts and circumstances of each case and no general rule can be laid down in that behalf. We generally agree with the view taken by the Full Bench of Kerala High Court in Kocheeppan's case : AIR1981Ker137 that, the provision is not to be understood as a provision to be used to defeat the claimant who would otherwise be entitled to contain just value for his property. The provision calls for a liberal construction in favour of the claimant to the extent possible. In considering whether the reason urged is be led by consideration of good faith in the conduct of the party. If the party is shown to be vigilant all along and not negligent and there is no absence of good faith on his part, that may be a good reason for admitting the claim. Discretion in this behalf is conferred upon the Court before which a claim is made. If the Court after keeping in view the relevant principles chooses to exercise the discretion and condones the lapse, then unless it is shown to be manifestly unjust or perverse, this Court would be lathe to interfere with it. It is undoubtedly true that in dealing with such a question, the party seeking relief has to satisfy the Court that it has sufficient reason' should be liberally construed, so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party.

5. In this context we would like to draw the attention of the Land Acquisition Officer towards the instruction and recommendations incorporated in Manual of Land Acquisition, published by the Government of Maharashtra. Though non-compliance with these instructions or recommendations cannot vitiate the proceedings, still the Revenue Officers of this State are expected to follow them. In the 'Notes on the Proceedings', as incorporated in Manual, a duty is cast upon the officer, that the parties should be induced to formulate their claims with precision. showing their title etc. The Land Acquisition Officer while inquiring into the valuation of the land and awarding the amount of compensation performs a statutory duty. The Award passed by him becomes final, subject t other provisions of the land Acquisition Act. Therefore, it would be desirable, though not legally imperative, that the parties are induced to formulate their claim with precision and are also informed that in the eve t of their omission to make a claim as required by law. they would be disentitled to claim enhanced compensation from the Court of reference. This would certainly promote the cause of justice. More so, when the affected persons could be from a lower strata of the society, illiterate, ignorant of their rights and are many times not respondent by legal advisers. Such a procedure would be in tune with the fundamental concept of welfare State. S

6. In the present case, it appears from the record that the part of the property of the claimant was already acquired over again which according to the claimant was resulting in unforeseen hardship. This is the reason why he protested against the acquisition. He approached the Government as well as the Municipal Council, even after the notification under Section 6 of the Land Acquisition Act was issued. At one stage the Municipal Council was also inclined to reconsider the proposal. He then filed an application under Section 48 of the Act before the Government which was also entertained by Government and an interim stay of further proceedings was granted. This is not the end of the matter. Even before the notice under Section 2(2) was served on him, the claimant had in terms submitted a claim before the Land Acquisition Officer which unfortunately reached him after the Award was passed. Thus, it is quite clear from the material placed on record that the claimant was all through vigilant and was prosecuting remedies came to realise that his efforts for dropping the acquisition are not going to succeed, he preferred a claim for compensation which unfortunately reached the Land Acquisition Officer after the Award was passed. It also appears that he was under a wrong but bona fide impression that if such a claim was made, he would lose the chance of having the acquisition proceeding withdrawn. Therefore, if a cumulative view of all the facts and circumstances placed on record is taken, then it cannot be said that the learned trial Judge exercised the discretion either illegally or without taking into consideration the relevant facts. In our opinion, since the trial Court has duly considered the explanation offered by the claimant for his failure to file claim statement after service of the Notice under Section 9 of the Act and has held that there was sufficient reason for such a failure, it will not be proper for this Court while exercising its appellate jurisdiction to interfere with the said discretion, more so when the said discretion was properly exercised.

7. It is no doubt true that the reliance was also placed by Shri Kotwal, in support of his contention upon a Division Bench decision of this Court to which one of us (Dharmadhikari J.) was a party in First Appeal No. 325 of 1980, decided on 4th April 1981 Nagori etc. v. Collector of Ahmednagar. However, it cannot be forgotten that in that case the trustee who was examined before the Court admitted that the Trust did not make any claim for compensation before the Land Acquisition Officer and had also accepted the compensation awarded. The Court further observed that but for a bare statement of a trusted in the evidence, nothing useful was brought on record to show that because of some bona fide belief, the Trust omitted to make a claim. Though the Court observed that filing of an application under Section 48 of the Land Acquisition Act for the withdrawal of acquisition cannot be termed to be a reasonable cause for not preferring the claim when an objection in that behalf was already overruled in an inquiry under Section 5-A of the Act, the said observations were made in the context of the facts and circumstances brought on record. In terms it was observed by the Division Bench in that case that in view of the paucity of evidence, it cannot be said that the trial Court committed any error in exercising its discretion claimant had failed to show any sufficient reason for not making the claim. Thus, in substance, the order of the trial Court was confirmed in appeal since in that case it was not shown or demonstrated that the lower Court had acted unreasonably or capriciously or had ignored the relevant facts while exercising the discretion. Therefore, the decision in that case turned on the facts of the case and no general rule was laid down in that behalf. To say the least, the said decision is wholly distinguishable on facts. Moreover the precedents on legal propositions are useful and binding but variety of circumstances and peculiar features of one case cannot be identical with those in another. Therefore, the judgments of the Courts on facts can be of little assistance.

8. So far as the controversy on merits is concerned, in our opinion, the learned trial Judge was wholly justified in awarding compensation at the rate of Rs. 35/- per sq. meter. so far as Exhibit 19. the sale deed executed by the very claimant on 30th May 1963 is concerned, it was rightly rejected by the trial Court since that was a sale of the property on which there were structures. The rate which is reflected by the said sale deed comes to about Rs. 45/- per sq. yard. The second sale deed on which the reliance was placed by the claimant viz. Exhibit 21 is duly proved by witness No. 2 Dr. Langde. This sale transaction took place on 21st of June 1968 by which 177 square yards of land was sold for Rs. 10,000/-. Thus the average price comes to Rs. 56.49 per sq. yard. The third sale deed is Exhibit 30. This transaction took place on 17th of January 1975 i.e. about three years after the notification under Section 4 was issued. The land Acquisition Officer has rightly rejected the sale deed dated 22nd of December 1970, Exhibit 38, on which reliance was placed by the acquiring body. So far as this sale deed is concerned, it is quite clear from the evidence of Vilasrao Patil that the land sold by this sale deed was reserved for Balodyan in the development map and there were tenants on the said land. The land purchased was in the interior and therefore was not comparable. Therefore, the learned trial Judge after taking a cumulative view of the relevant sale transactions came to the conclusion that Rs. 35/- per sq. meter would be a reasonable compensation. If this finding is tested in the light of the evidence of Dr. Langde together with the sale transaction incorporated in Exhibit 21, which took place in 1968, in our view, it cannot be said that compensation granted by the Civil Court is in any way unreasonable or illegal. It is by now well settled that there is an element of guess work inherent in most cases involving determination of the market value of the acquired land. But this in the very nature of the things cannot be helped (see : [1977]2SCR633 Prithvi Raj Taneja v. State of M. P. and : AIR1979SC869 Krishna Yachendra v. Sp. Land Acquisition Officer). Therefore we do not feel that any interference is called for with the Award passed by the Civil Court. However, it will have to be held that the trial Court committed an obvious error in granting interest at the rate of Rs.5/- per cent per annum from the date of the order to the date of the recovery. Section 28 of the Land Acquisition Act as amended by Bombay Act, in terms lays down that a Civil Court can direct the Collector to pay interest on such excess compensation at the rate of Rs. 4/- per cent per annum from the date on which he took the possession of the land to the date of the payment of such excess. It is not necessary to deal with this aspect of the matter in any further details in view of the decision of the Supreme Court in Raghuvansh Narayan Singh v. Uttar Pradesh Government AIR 1967 SC 465, wherein it is held by the Supreme Court that to grant or refuse to grant interest is discretionary, but once the discretion and interest if awarded has to be at the rate of prescribed by Section 28 of the Act. Therefore to that extent the appeal of the State will have to be allowed. Thus the claimant will be entitled to interest at the rate of 4% per annum, of course not from the date of the order but from the date on which the possession of the land was taken to the date of payment of such excess amount. In the result therefore but for this modification in payment of interest, rest of the appeal fails and is dismissed. However, in the circumstances of the case there will be no order as to costs.

9. Even before the hearing of the appeal started, the claimant respondent sought permission of this Court to withdraw his cross-objection and the same was allowed to be withdrawn. Therefore the claimant will be entitled to refund of Court-fee paid on the said cross-objection in accordance with the law, as if no effective hearing had taken place on the said cross-objection. However, in the circumstances there will be no order as to costs in the cross-objection also.

10. In the view which we have taken, no orders are necessary in the Civil Application No. 980 of 198..

11. Appeal partly allowed.


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