TMI Blog2012 (7) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... e sustained. In the result, the appeals are allowed. The impugned judgment and order are set aside and the one passed by the Reference Court for payment of compensation to the appellants at the rate of ₹ 25/- per square meter is restored. The respondents are directed to pay the balance amount to the appellants with all other statutory benefits and interest within three months from today. - C.A. No. 3590 Of 2012, 3591 Of 2012, 3670 Of 2012, 3671 Of 2012 - - - Dated:- 2-7-2012 - Singhvi G.S. And Mukhopadhaya Sudhansu Jyoti, JJ. JUDGMENT G. S. Singhvi, 1. With a view to implement the New Bombay Project, the Government of Maharashtra acquired large tracts of land in different villages of the State. The appellants land measuring 3,86,790 square meters in Roadpali (Kolekhar) Village, Panvel Taluka, Raigad District was also acquired for the project. Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, the Act ) was issued on 3.2.1970 and declaration under Section 6(1) was issued on 24.8.1972. The Special Land Acquisition Officer passed different awards for different parcels of land and fixed market value of the acquired land in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harashtra v. Ramachandra Damodar Koli and others (Ext.16) as also the awards passed by the Reference Court in L.A.R. No.168/86 (Ext.13), L.A.R. No.172/86 (Ext.14) and L.A.R. No.1334/2000 (Ext.15). On behalf of the Special Land Acquisition Officer, no evidence was produced in support of the assertion that the acquired land was undeveloped and it did not have non-agricultural potential. 5. The Reference Court considered the evidence produced by the appellants and held that the acquired land had non-agricultural potential and the Special Land Acquisition Officer committed grave error by fixing market value on the premise that it was an undeveloped land and was being used for agricultural purposes only. The detailed reasons recorded by the Reference Court for arriving at this conclusion are reproduced below: It is an admitted fact that civic amenities were available to Panvel Town prior to 1970. Construction of Thane Creek bridge brought various villages including village Roadpali (Kolhekhar) close to Bombay. The proximity of National Highway No.4, Panvel-Sion Highway, Diva-Panvel-Apta railway line, vicinity of Jawahar Industrial Estate, MI D.C. Industrial Estate Taloja, Panvel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lands under reference were not having N.A. potentiality on the date of notification. However, in view of the observation of the Hon ble Bombay High Court in the above cited ruling argument advanced by learned D.G.P. is devoid of substance. In view of Section 56 of the Indian Evidence Act a fact judicially noticed need not be proved. The effect of taking judicial note of any fact means recognition of the fact without formal proof and no one can question it. Even court can t insist of formal proof by evidence. Judicial note take place of proof. Nearness of Bombay City which is economic capital of our country and magnitude of industrial development around the lands under reference is sufficient to say that the lands under reference were having tremendous N.A. potentiality on the date of notification. (emphasis supplied) 6. The Reference Court referred to the judgments of District Judge, Raigad- Alibag in LAR Nos.168/86 and 172/86 by which compensation at the rate of ₹ 90/- per square meter was awarded for the land situated at Ambetarkhar (Roadpali), Taluka Panvel, which was also acquired for the New Bombay Project, but held that the same are of no help to the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of Maharashtra, L J Department Mantralya Mumbai, by the Asstt. Govt. Pleader, High Court, Mumbai, produced on record with the list Exh. 33/1 by the Ld.D.G.P., that, in First Appeal No. 560/91 arising out of LAR No. 350/89 the Hon'ble High Court Bombay awarded compensation @ ₹ 25/- per sq. mtr. To the land from village Roadpali, and the Asstt. Govt. Pleader, High Court Mumbai, opined that the said case is not fit for appeal. The land involved in the reference in hand and the land involved in the case reported in 1997(2) Mh. L.R. 325 are virtually identical situated in the same area bearing similar topographical and physical characteristics covered by the same notification dt.3.2.1970. When the nearby land of the land under reference fetch market value @ ₹ 25/- per sq. mtr. On the date of notification, certainly the land under reference fetch the same market value. (as contained in the paper book) 8. The State Government questioned the determination made by the Reference Court by filing an appeal under Section 54 of the Act and prayed for reduction in the amount of compensation on the ground that the acquired land was undeveloped and was being used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be enhanced because the Reference Court and the High Court committed an error by not considering the geography of the land and its potential use for nonagricultural purposes. Shri Bhushan submitted that while preparing valuation report (Ext.24), Shri Vikrant Manohar Vaidya had taken note of the fact that the acquired land was very close to the industrial estate developed at Panvel and Taloja and railway line had been laid, but the Reference Court and the High Court did not give due weightage to the expert report for the purpose of determination of the amount of compensation and this has caused serious injustice to the appellants. Learned senior counsel relied upon the judgment in Land Acquisition Officer, Revenue Divisional Officer v. L. Kamalamma (1998) 2 SCC 385 and argued that the distance from the highway cannot be made the sole benchmark for fixing market value of the acquired land which is in the vicinity of fully developed area. Shri Bhushan also invited our attention to judgment dated 21.6.2009 of the Division Bench of the Bombay High Court whereby the appeals filed by the State of Maharashtra and the landowners against the judgment of District Judge, Raigad in LAR No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis- -vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under: Positive factors Negative factors (i) smallness of size (i) largeness of area (ii) proximity to a road (ii) situation in the interior at a distance from the road (iii) frontage on a road (iii) na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le nor fictitious sale brought about in quick succession or otherwise to inflate the market value. The determination of market value is the prediction of an economic event viz. a price outcome of hypothetical sale expressed in terms of probabilities. See Kamta Prasad Singh v. State of Bihar, Prithvi Raj Taneja v. State of M.P., Administrator General of W.B. v. Collector, Varanasi and Periyar Pareekanni Rubbers Ltd. v. State of Kerala. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed development is required, needs laying of internal roads, drainage, sewer, water, electricity lines, providing civic amenities, etc. However, in cases of some land where there are certain advantages by virtue of the developed area around, it may help in reducing the percentage of cut to be applied, as the developmental charges required may be less on that account. There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, may be in some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracts are acquired, as in this case, for development purpose. (emphasis supplied) 17. The rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P . (2003) 10 SCC 525, V. Hanumantha Reddy v. Land Acquisition Officer Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be applied fully where the acquired land has no development. But where the acquired land can be considered to be partly developed (say for example, having good road access or having the amenity of electricity, water, etc.) then the development cost (that is, percentage of deduction) will be modulated with reference to the extent of development of the acquired land as on the date of acquisition. But under no circumstances, will the future use or purpose of acquisition play a role in determining the percentage of deduction towards development cost. (emphasis supplied) 19. In Land Acquisition Officer, Revenue Divisional Officer v. L. Kamalamma (supra), this Court held as under: When a land is acquired which has the potentiality of being developed into an urban land, merely because some portion of it abuts the main road, higher rate of compensation should be paid while in respect of the lands on the interior side it should be at lower rate may not stand to reason because when sites are formed those abutting the main road may have its advantages as well as disadvantages. Many a discerning customer may prefer to stay in the interior and far away from the main road and may be w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of compensation to the appellants at the rate of ₹ 25/- per square meter is restored. The respondents are directed to pay the balance amount to the appellants with all other statutory benefits and interest within three months from today. 24. With a view to ensure that the landowners are not fleeced by the middleman, we deem it proper to issue the following further directions: (i) Within one month from today, the Special Land Acquisition Officer shall depute an officer subordinate to him not below the rank of Naib Tehsildar or an equivalent rank, to get in touch with the landowners and/or their legal representatives and inform them about their entitlement to receive the balance amount of compensation. (ii) The concerned officers shall instruct the landowners and/or their legal representatives to open savings bank account in a nationalized or scheduled bank, in case they already do not have such account. (iii) The account numbers of the landowners and/or their legal representatives should be furnished by the concerned officer to the Land Acquisition Officer within a period of one month. (iv) Within next one month, the Special Land Acquisition Officer shall dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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