TMI Blog2013 (8) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... n that is before 14.06.1990 which sale instances were very well considered by the reference court for comparison and the finding of fact was recorded that the said instances are comparable to the acquired land to that of the plots covered in the sale deeds. Therefore, it is contended that the acquired land has the similar non agricultural potentiality and the State Government had acquired the said land in favour of the Maharashtra Industrial Development Corporation (in short the Corporation ) for the purpose of formation of industrial estate and sale of the plots for commercial purposes. It is urged by the learned counsel that the judgment and award passed by the reference court is erroneously set aside by the High Court as it has found fault with it in placing reliance upon the sale instances and has wrongly redetermined the market value of the land which findings recorded by the High Court in its judgment are not only erroneous in law but also suffers from error in fact and therefore, the same is liable to be set aside. 4. The further legal contention urged by the learned counsel for the appellants is that learned reference Judge has rightly awarded the compensation of the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re requested this Court to award just and reasonable compensation as awarded by the reference court. 7. Mrs. Asha Gopalan Nair, the learned counsel for respondent Nos. 1 and 2 and Mr.Shyam Divan, learned Senior Counsel for respondent No.3 have sought to justify the impugned judgment of the High Court, inter alia, contending that the learned single Judge of the High Court has rightly set aside the impugned judgment in the First Appeal after recording valid and cogent reasons for rejecting the finding recorded by the reference court on contentious issues by placing reliance upon the pre and post sale instances in relation to the non residential plots which are not comparable to the acquired land. Therefore, it is submitted that the High Court has rightly came to the conclusion on proper re-appraisal of evidence and held that the finding of fact recorded by the reference court in placing reliance upon the sale instances is in relation to small plots, whereas the land acquired is a bigger area. Therefore, the plots covered under sale instances are not comparable to the acquired land in order to arrive at a conclusion and record finding that the acquired land is comparable to the plo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired land in exercise of his statutory power under Section 11 of the L.A. Act and the Special Land Acquisition Officer has awarded compensation at ₹ 50,000/- per hectare of the acquired land which does not reflect the correct market value. 10. Feeling aggrieved by the said award the appellants herein sought for reference to the reference court by filing claim petition under Section 34 of the Maharashtra Industrial Development Act, 1961 for enhancement of compensation by re-determining the market value. The Collector made reference to the reference court by acceding to the request of the land owners for re-determination of the market value of the acquired land. The appellants produced documentary evidence of sale instances of the plots which are situated in the near proximity of the acquired land and the reference court has examined their claim for enhancement of compensation and rightly re-determined the market value of their land by placing reliance upon the sale instances. The said claim was opposed by the respondents by filing their written statement, inter alia, contending that compensation awarded by the land acquisition officer is as per the sale consideration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on behalf of the Land Acquisition Officer and the claim of the appellants and placing reliance upon the documentary and oral evidence on record, passed judgment by awarding just and reasonable compensation by re-determining the market value. The land G.No.133 is acquired for the purpose of Mini MIDC i.e. for non agricultural purpose and further with reference to Map. 4, the acquired land is on Nanded Bhokar Bhainsa Highway. Further, on the basis of receipts produced at Exhs. 17 and 18, the claimant No. 2 Ashok Narayan Kondalwar has converted his share of land from G.No. 123 into non-agricultural purpose. To substantiate this fact the claimants produced the certificate issued by the Talathi, which is marked as Exh. 19. The learned reference Judge has also taken note of the fact that there is no evidence to prove that the acquired land was converted for non agricultural purpose prior to 14.06.1990. From Exhs. 40 and 41, it is clear that the possession of this land was taken on 19.6.1995 and prior to that date claimant No. 2 Ashok Narayan Kondalwar had converted his share of land into non agricultural purpose. The learned Judge did not consider the said documentary evidence and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red land. The said finding of fact is erroneously set aside by the High Court, holding that the learned reference Judge has erroneously applied the sale instances of the small residential plots of New Venkateshnagar Layout to the land acquired by the State government in favour of the M.I.D.C. The Land Acquisition Officer while determining the market value has considered the acquired land as agricultural land and awarded inadequate compensation in favour of the appellants. 15. We have carefully examined the factual and legal contentions urged on behalf of the respondents keeping in view the decision of this Court in the case of Sabhia Mohammed Yusuf Abdul Hamid Mulla Vs. Special Land Acquisition Officer (2012) 7 SCC 595), wherein this Court after interpreting Section 23 of the L.A. Act, 1894, referred to the various legal principles laid down by the Bombay High Court and this Court regarding the relevant criteria to be followed by the Land Acquisition Collector and Courts for determination of the market value of the land acquired for public purpose. At paragraph 5 of the above referred judgment, there is a reference to the Bombay High Court s judgment rendered in the case of Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r determination of market value of the acquired land: (SCC pp. 796-97) 17. Section 23 of the Act specifies the matters required to be considered in determining the compensation; the principal among which is the determination of the market value of the land on the date of the publication of the notification under sub-section (1) of Section 4. 18. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not. 19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered. 18. Further, it would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racted thus: 18. On the facts and circumstances of the matters before us and difference in quality and potentiality of the lands acquired, we are of the view that market value of the acquired lands for NTPC when compared to the lands acquired for Sector-II Faridabad, should be reduced by at least one-fifth (20%). 21. It would be worthwhile to refer to the judgment of Privy Council decided on 23.02.1939 in the decision reported in Vyricherla Narayana Gajapatiraju Vs. Revenue Divisional Officer (AIR 1939 PC 98) wherein at para 24 it reads as under: 24. It was then claimed on the appellant s behalf that the spring could but for its acquisition, have been used by him as a source of water supply either to the Harbour Authority or to the oil companies and others residing or carrying on business in the harbour area; and the appellant claimed to be compensated upon this footing. After a lengthy hearing before him in the course of which many questions of law and fact not now in issue were discussed, the learned Judge made his award. He found as a fact, and the fact cannot be disputed, that the water of the spring was on 13th February, 1928 capable of being used as a source of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he acquisition of the land is for commercial purpose should be the relevant criteria for determining the market value by both the Land Acquisition Officer and reference Court placing reliance upon the sale instances even in relation to small plots of land, though it is shown from the records that the acquired land on the date of notification is an agricultural land. But the acquired land has got non agricultural potentiality as the said land was proposed by the District Collector after identifying the land for acquisition and stated that it is suitable for the purpose of industrial development. Therefore, the principles laid down at para 16 of Sabhia Mohammed Yusuf Abdul Hamid Mulla's case and the principles laid down in Viluben Jhalejar Contractor s case referred to supra laid down the criteria for determination of the market value of the acquired land. Also, in Atma Singh s case (supra) it was stated that the criteria for the determination of the market value the potentiality of the acquired land should also be taken into consideration which has been explained stating that potentiality means capacity or possibility for changing or developing into a state of actuality. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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