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Narayan Muktaji Dhage and Vs. Special Land Acquisition Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal Nos. 195 and 196 of 1979
Judge
Reported in1982(2)BomCR132
ActsLand Acquisition Act, 1894 - Sections 4(1) and 9
AppellantNarayan Muktaji Dhage and ;ganpat Narayan Dhage
RespondentSpecial Land Acquisition Officer and anr.
Appellant AdvocateA.G. Godhamgaonkar, Adv.
Respondent AdvocateS.S. Choudhari, Government Pleader
DispositionAppeal allowed
Excerpt:
- - nagorao stated in paragraph 2 that he enjoyed annual income of rs. 2,000/- per acre from his land and that he enjoyed both rabi and kharif crops. 39) also stated that he enjoyed annual income of rs. i am, therefore, satisfied that the learned judge was in error in rejecting these two references and both the appeals deserves to be allowed and they are accordingly allowed......nanded, but in these two first appeals, we are concerned only with two references, namely land acquisition reference no. 27 of 1976, out of which first appeal no. 195 of 1979 arises, and the second land acquisition reference is no. 28 of 1976, out of which first appeal no. 196 of 1979 arises, and they arise out of the following facts.2. the date of notification under section 4(1) of the land acquisition act, 1894, in both appeals is 11-11-1971. the acquisition in both appeals is for the purposes of change of the village location of village yeli in kandhar tahsil of nanded district. in land acquisition reference no. 27 of 1976, survey no. 18 admeasuring 82 acres assessed at rs. 3/- and survey no. 19 admeasuring 40 acres assessed at rs. 1.50 p. are acquired. in land acquisition.....
Judgment:

D.B. Deshpande, J.

1. Originally five land acquisition references were heard together and were disposed of by a common judgment by the learned Civil Judge, (Senior Division), Nanded, but in these two first appeals, we are concerned only with two references, namely Land Acquisition Reference No. 27 of 1976, out of which First Appeal No. 195 of 1979 arises, and the second Land Acquisition Reference is No. 28 of 1976, out of which First Appeal No. 196 of 1979 arises, and they arise out of the following facts.

2. The date of notification under section 4(1) of the Land Acquisition Act, 1894, in both appeals is 11-11-1971. The acquisition in both appeals is for the purposes of change of the village location of village Yeli in Kandhar Tahsil of Nanded District. In Land Acquisition reference No. 27 of 1976, Survey No. 18 admeasuring 82 acres assessed at Rs. 3/- and Survey No. 19 admeasuring 40 acres assessed at Rs. 1.50 p. are acquired. In Land Acquisition Reference No. 28 of 1976, Survey No. 20/B admeasuring 2 acres 20 gunthas equivalent to one hectare are acquired and this area is out of 6 acres 4 gunthas of land assessed at Rs. 10.07 p.

3. It was the grievance of both the claimants that notices under section 9 of the Land Acquisition Act were not at all served upon them and in the alternative, it was their contention that even if it is assumed for a moment that such notices were served upon them, they were served after the passing of the award and hence, according to the claimants, they could not lay any claim before the Land Acquisition Officer. After they received the notices after the date of the award, they laid claim at the rate of Rs. 4,000/- per acre. Upon considering the material before him, the Land Acquisition Officer made an award awarding Rs. 1,000/- per acre for these lands. The statement of Shri Godhamgaonkar, learned Advocate appearing for the appellants, that the award does not bear any date is not controverted. The notice of the award was served upon the claimants on 28-8-1974 and thereafter in Land Acquisition Reference No. 27 of 1976, reference application was made on 27-9-1974 and in Land Acquisition Reference No. 28 of 1976 also reference application was made on the same date. Both these claimants claimed at the rate of Rs. 4,000/- per acre.

4. Before the trial Court, the claimants in all the five references were examined and evidence was led of one sale instance dated 16th April, 1970 under which five acres of land from Survey No. 36/9 was sold for Rs. 20,000/- on 16th April, 1970 vide Exhibit No. 30. It is significant to note that out of these five references, one was a reference for one acre of land acquired out of this purchased land. After considering the entire evidence, the learned trial Judge accepted the contention of the claimants and held that they were not served with the notices under section 9 of the Land Acquisition Act and hence they could not lay any claim before the Land Acquisition Officer regarding compensation. The learned Judge further held that the references were within limitation. So far as the amount of market value is concerned, the learned Judge accepted the claim made in Land Acquisition Reference No. 30 of 1976 in which he awarded compensation at the rate of Rs. 4,000/- per acre. But, so far as other lands are concerned, relying upon the sale instances mentioned in the table prepared by the Land Acquisition Officer while drawing the award, the learned Judge rejected all other references. Being aggrieved, the claimants in these two references have filed these two first appeals.

5. As I said earlier, the evidence consists of one sale instance under which five acres of land from Survey No. 36/9 is sold for Rs. 20,000/- on 16th April, 1970 vide Exhibition No. 30, the sale deed, and the witness for proving this transaction is Nagorao (P.W. No. 1 Exh. No. 27). This Nagorao is also one of the claimants in Land Acquisition Reference No. 30 of 1976 to whom compensation has been awarded at the rate of Rs. 4,000/- per acres on the basis of this sale instances. The total area of the land is 10 acres 15 gunthas assessed at Rs. 14.81 p., thereby the assessment per acre comes to about Rs. 1.40 p. approximately. This is a sale deed on 16-4-1970 and the date of notification under section 4(1) in these cases is 11-11-1971. Thus, this is a pre-notification sale about one and half year prior to the date of notification under section 4(1). There is no reason on earth as to why this sale instance should be rejected. Shri Choudhari, learned Government Pleader appearing for the State Government, tried to place reliance upon one reply given by Nagorao in his cross-examination. In paragraph 5 of his cross-examination, Nagorao stated that the land revenue assessment of the land purchased by him is Rs. 3/- per acre. Obviously, this is an incorrect statement. I have pointed out that the total land is 10 acres 15 gunthas assessed at Rs. 14.81 p. and five acres out of this land is purchased by Nagorao. This assessment is near about Rs. 1.40 p. per acre only and not Rs. 3/- per acre as stated by this witness. Then Shri Choudhari tried to place reliance upon the statements about the annual yield from this land. Nagorao stated in paragraph 2 that he enjoyed annual income of Rs. 1,5000/- to Rs. 2,000/- per acre from his land and that he enjoyed both rabi and Kharif crops. As against this, Shri Choudhari invited my attention to the statement of Narayan (P.W. No. 3 Exh. No. 38), who is claimant in Land Acquisition Reference No. 27 of 1976 and this Narayan stated that his annual income is Rs. 800/- to Rs. 900/- per acre. Maruti (P.W. No. 4-Exh. No. 39) also stated that he enjoyed annual income of Rs. 800/- to Rs. 900/- per acre. Similarly Ganpati (P.W. No. 5-Exh. No. 41), who is claimant. In Land Acquisition Reference No. 28 of 1976, stated that his annual income is Rs. 2,000/- from his land. The area is two and half acres and, hence, according to Shri Choudhari, the income of this person is about Rs. 800/- per acre per year. Nothing turns out upon the income of the land. If a person adds more manure to the land, he is bound to get more income than the others who get income from the same quality of land by adding lesser manure. What is pertinent to note is the land revenue assessment of all these lands. As already stated, Survey No. 18 is 82 acres and has assessment at Rs. 3/-. The assessment comes to about Rs. 1.50 p. per acre. Survey No. 19 admeasures 40 acres and is assessed at Rs 1.50 p. and is exactly Rs. 1.50 p. per acre. Survey No. 20/B is 6 acres 4 gunthas assessed at Rs. 10.07 p. taking the assessment to be about Rs. 1.60 p. or Rs. 1.65 p. per acre. It will, therefore, be seen that the land purchased under sale deed, Exh. No. 30 is of the same calibre as the acquired lands in these two first appeals. Hence, there is absolutely no reason why this sale instance should not be taken as a genuine sale instance indicating the trend of the price of the land in that locality.

6. On going through the judgment of the learned trial Judge, it is apparent that the learned trial Judge has squarely fallen into an error in referring to the contents of the award regarding the sale instances quoted by the Land Acquisition Officer in his award. In several appeals, which have come before us out of such awards, we have found that several Civil Judges have relied upon the contents of the award regarding the sale instances to negative the claims of the claimants. Award is merely an offer and it is not a judicial order and reference cannot be made to the sale instance mentioned in the awards by the Judges while deciding the reference petitions. If the State Government wants to rely upon those sale instances, the State Government must lead evidence of those witnesses to prove the transactions and then only reliance can be placed upon these instances. Simply because the Land Acquisition Officer has in his table mentioned several sale instances, it will not be open to the Judges deciding the reference petitions to refer to those instances and to decide the reference cases by relying upon those instances quoted by the Land Acquisition Officer in his award. It is more than a settled law that award is merely an offer and is not a judicial order. Hence the Judges while deciding the reference cases should not rely upon those instances which are mentioned by the Land Acquisition Officer in the award, unless independent evidence is led by the persons concerned in respect of those sale instances.

7. Thus, looking to the sale instances, I do not see any reason why these claimants should not be awarded compensation at the rate of Rs. 4,000/- per acre. I have already pointed out that the acquired lands are also of the same calibre as the land in sale instance (Exh. No. 30). There is still one more factor. As I said earlier, Nagorao is a claimant and he is the purchaser, and one acre out of the purchased land is also acquired for this very purpose. In that case, the learned Judge has awarded compensation at the rate of Rs. 4,000/- per acre. No appeal seems to have been filed by the State Government against that order and hence this is an admission on the part of the Government that the value of the land of this calibre was about Rs. 4,000/- per acre on or about 11-11-1971, i.e., the date of notification under section 4(1) of the Land Acquisition Act. I am, therefore, satisfied that the learned Judge was in error in rejecting these two references and both the appeals deserves to be allowed and they are accordingly allowed.

8. In First Appeal No. 195 of 1979, which arises out of Land Acquisition Reference No. 27 of 1976, the respondents are directed to pay to the claimants Rs. 10,407.50 p. in addition to the amount paid to him by the Land Acquisition Officer with interest at 4 per cent per annum from the date of dispossession till satisfaction on Rs. 9,000/- with costs of both the courts.

9. In First Appeal No. 196 of 1979, which arises out of Land Acquisition Reference No. 28 of 1976, the respondents are directed to pay to the claimant Rs. 8,596.25 p. in addition to the amount paid to the claimant by the Land Acquisition Office with interest at 4 per cent, per annum from the date of dispossession till satisfaction on Rs. 7,500/- with costs of both the courts.


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