A. S. Chandurkar, J
1. These appeals take exception to the judgment of the Reference Court dated 17/04/2012 in L.A.C. No.263/2008. Land admeasuring 1H 61R bearing
Gat No.157/4 situated at Kohla, District Yavatmal was proposed to be acquired for rehabilitation of residents of Kohla village. Notification under
Section 4 of the Land Acquisition Act, 1894 (for short, the said Act) was published on 15/06/2006. Thereafter Notification under Section 6 of the said
Act was issued on 20/04/2007. The Special Land Acquisition Officer by his award dated 09/04/2008 awarded compensation of an amount of
Rs.2,22,900/- per hectare for the acquired land. The owners of the land not being satisfied with the amount of compensation as awarded filed
reference proceedings under Section 18 of the said Act. After considering the evidence brought on record by the claimants the Reference Court was
pleased to enhance the amount of compensation to Rs.60,00,000/- per hectare for the acquired land. The claimants not being satisfied with the amount
of compensation as granted have preferred First Appeal No.1094/2013 for further enhancement in the amount of compensation. The acquiring body
Vidarbha Irrigation Development Corporation has filed First Appeal No.1095/2013 since it is aggrieved by the enhancement in the amount of
compensation as awarded by the Reference Court. Similarly the Collector as well as the Special Land Acquisition Officer have filed First Appeal
No.1026/2014 since they are also aggrieved by the enhancement in the amount of compensation.
2. Shri R. J. Mirza, learned counsel for the claimants in support of the prayer for further enhancement in the amount of compensation submitted that
the Reference Court was not justified in granting enhancement only to the extent of Rs.60,00,000/- per hectare. He submitted that the claimants
themselves had purchased the aforesaid land bearing Gat No.157/4 on 07/09/2004 for a consideration of Rs. 12,54,658/- per hectare. The land was
abutting Ner-Karanja Road. It had great non-agricultural potentiality and further sale by conversion of the agricultural land into various plots was
possible. The claimants had initiated proceedings for conversion of the aforesaid land for its use for non-agricultural purpose. Infact they had
purchased the aforesaid land with a view to develop the same and earn profit. In that regard he submitted that the claimants had entered into various
agreements dated 23/11/2004, 11/01/2005 and 14/01/2005 at Exhibits-43 to 46. Small plots were intended to be sold to the prospective purchasers at
rates ranging from Rs 160/- per square ft. to Rs.210/- per square ft. Execution of these agreements itself indicated the potentiality of the said land and
the rates which it could fetch. The Reference Court was not justified in giving much importance to the fact that the agreements were not registered.
There was no requirement in law to have an agreement of sale registered. The said agreements were bonafide transactions and there was no reason
to doubt the same. In that regard the learned counsel sought to place reliance on the decision in S. Kaladevi vs. V. R. Somasundaram and ors. (2010)
5 SCC 401 as well as order dated 09/09/2019 passed by Supreme Court in Prakash Sahu vs. Saulal and ors. MANU/SC/1530/2019. It was thus
submitted that infact on the basis of these agreements the claimants were entitled for further enhancement in the amount of compensation.
It was then submitted that considering the location of the acquired land which was abutting the road and the fact that various adjoining lands were
already developed and used for non-agricultural purposes it was clear that the acquired land had great potentiality for non-agricultural use. Placing
reliance on the decisions in Special Land Acquisition Officer and anr. vs. Sidappa Omanna Tumari and ors. 1995 Supp (2) SCC 168, Special Land
Acquisition Officer and anr. vs. M. K. Rafiq Saheb 2011 (6) Mh.L.J. 9, Administrator General of West Bengal vs. Collector, Varanasi AIR 1988 SC
943 and Digambar and ors. vs. State of Maharashtra and ors. AIR 2013 SC 3532 it was submitted that on the aforesaid basis the claimants would be
entitled to further compensation. He then referred to the evidence on record to urge that the material brought on record by the claimants was
sufficient to justify enhancement in the amount of compensation from that as awarded by the Reference Court. He also referred to the decisions in
State of U.P. vs. Major Jitendra Kumar and ors. AIR 1982 SC 876, Assam Railways and Trading Co. Ltd. vs. The Collector of Lakhimpur and anr.
AIR 1976 SC 1182 and Ambya Kalya Mhatre (dead) Through LRs. And ors. vs. State of Maharashtra 2012 (1) Mh.L.J. 9 as well as judgment of the
Karnataka High Court in Misc. First Appeal No.347/1982 decided on 31/05/1989 (Purushotham Pandit Kher vs. Special Deputy Commissioner (Spl.
L.A.O.) and the judgment of the Allahabad High Court dated 08/04/2015 in First Appeal No.865/2002 (National Thermal Power Corporation Thr. its
G.M. vs. State of U.P. and ors.) with connected matters. It was thus submitted that the claimants be awarded further compensation by allowing the
appeal.
3. Opposing the aforesaid submissions Shri S. B. Bissa, learned Assistant Government Pleader for the Collector and Special Land Acquisition Officer
submitted that the Reference Court committed a gross error in enhancing the amount of compensation by about five times without any legal basis.
According to him the claimants themselves having purchased the land on 07/09/2004 they could not have been granted compensation by enhancing the
same to about five times as such appreciation was not possible within a short period of less than two years. The Notification under Section 4 of the
said Act having been published on 15/06/2006 there could not have been enhancement to such a huge extent by any stretch of imagination. It was his
submission that the entire land was agricultural land when it was acquired and the agreements entered into were only for the purposes of relying upon
them in the reference proceedings. None of the agreements had any date written on them and the stamp papers were purchased by the claimants
themselves. The rate mentioned in the said agreements was exorbitant and the same did not indicate the actual market value of the land. Merely
because the proposed purchasers were examined the same would not mean that the rates mentioned in those agreements were liable to be granted.
He submitted that though the claimants were entitled for reasonable enhancement in the amount of compensation they were not entitled to the
compensation as enhanced by the reference Court. It was thus prayed that the amount enhanced by the Reference Court be suitably reduced.
4. Shri A. Parihar, learned counsel for the acquiring body besides adopting the aforesaid submissions made on behalf of the Collector submitted that
the agreements at Exhibits-43 to 46 were doubtful and did not deserve to be taken into consideration while considering the prayer for enhancement in
the amount of compensation. Those agreements were executed even before the land was converted for non-agricultural use and hence they were
speculative in nature. He also made grievance that the enhancement granted by the Reference Court to the extent of about five times was unjustified
and the same was liable to be reduced appropriately. He referred to the adjudication in L.A.C No.235/2008 (Nikhil N. Bhagat vs. State of
Maharashtra) wherein land bearing Gat No.157/5 admeasuring about 1H 61R came to be acquired and the Reference Court had granted
compensation at the rate of Rs.37,00,000/- per hectare. It was thus submitted that the appeal as filed was required to be allowed.
5. On hearing the learned counsel for the claimants, the Special Land Acquisition Officer and the acquiring body, following points arise for
determination :
(i) Whether the Reference Court was justified in enhancing the compensation to the extent of about five times on the basis of the evidence on
record ?
(ii) If yes, whether the claimants are entitled to further enhancement in the amount of compensation ?
(iii) If the answer to the first point is in the negative what is the amount of fair compensation that should be awarded to the claimants ?
6. For considering the aforesaid points together it would be necessary to first refer to the evidence led by the parties before the Reference Court. One
of the claimants Ajaykumar Bang filed his affidavit at Exhibit-23 in support of the prayer for enhanced compensation. In his affidavit it was stated that
the land in question was abutting Ner-Ajanti Road. To the eastern side of the said land was Sharda Nagar locality. Similarly the land was surrounded
by various other localities and at a short distance there was an office of BSNL. The claimants had taken steps to convert the land for non-agricultural
use and there was demand to purchase plots at the rate of Rs.200/- per sq. ft. Interested persons had entered into agreements for the purchase of
plots. The said witness placed on record certain communications with regard to steps taken for conversion of the land for non-agricultural use as well
as the reply given by the claimants to the notice issued under Section 4 of the said Act. In his cross-examination he stated that village Kohla was
having population of about 700. He denied various suggestions as made that the acquired land did not have much non-agricultural potentiality. He
admitted that the acquired land had not been converted for non-agricultural use when it was acquired. The proposed map Exhibit-27 was also not
sanctioned when the land was acquired. He stated that none of the agreements were registered nor was any registered document produced to show
that the land was valued at Rs.200 per sq. ft.
7. The claimants further examined Shivshankar Rathod at Exhibit-40, Haji Ashraf at Exhibit-41 and Baban Rathod at Exhibit-42. These witnesses
admitted that they had entered into separate agreements for purchasing plots from the area proposed to be developed which was part of the acquired
land. The agreements in question were at Exhibits-43 to 46. These witnesses admitted that they had not purchased the stamp papers on which the
agreements were scribed. Similarly there was no map annexed to the agreements indicating permission granted for sale nor was the agricultural land
converted for non-agricultural use. They stated that as the proposal for conversion of the land for non-agricultural use was not sanctioned the
agreements came to be cancelled.
The acquiring body did not lead any evidence before the Reference Court.
8. In the impugned judgment the learned Judge of the Reference Court on consideration of the material on record found that the acquired land was not
converted for non-agricultural use. The agreements on record did not indicate any date on which the same was entered into. There was no material to
indicate that the acquired land had value of Rs.200/-per sq. ft. As the agreements were unregistered the learned Judge did not give much value to that
piece of evidence. He further held that as per document at Exhibit-26 the acquired land was in the green zone. He however observed that the
potentiality of the acquired land for development could not be disregarded. On that basis the learned Judge proceeded to observe as under :
“.... When petitioner has purchased the said land presuming Jirayat land @ Rs.12,54,658/- per hector. Therefore, at the most if
compensation granted to the petitioner, near about 5 times to the rate of purchase price by considering acquired land as future potentiality
of development, therefore, in my view if compensation enhanced @ Rs.60,00,000/- per hector that will be suffice and just.â€
It is on the aforesaid basis that the Reference Court proceeded to enhance the amount of compensation to the extent of five times.
9. Perusal of the record and especially the document at Exhibit-24 which is reply dated 18/07/2007 given by the claimants to the notice issued under
Section 9(1) of the said Act indicates that on 02/05/2001 the original owner of the land Niraj Narendra Bhagat entered into an agreement for sale of
Gat No.157/4 which is the acquired land with Shri Haji Hanif and Shri Haji Harun for a consideration of Rs.5,05,000/- per acre. As the sale-deed was
not executed by the original owner, the proposed purchasers filed Special Civil Suit No.61/2004 in the civil Court seeking specific performance of the
agreement on 11/08/2004. The civil Court directed the proposed purchasers to pay the balance consideration within a period of one month and directed
the original owner to execute the sale-deed in their favour. According to the claimants since the proposed purchasers were not in a position to
complete the transaction, they entered in the picture. Thereafter on 07/09/2004 the claimants purchased the aforesaid land admeasuring 1H 61R at the
rate of Rs.12,54,658/- per hectare. The witness examined by the claimants however has not deposed about the aforesaid aspects nor is the sale-deed
dated 07/09/2004 brought on record to indicate the exact price paid by the claimants while purchasing the acquired land.
10. Before undertaking the exercise of determining fair compensation that can be awarded to the claimants it would be necessary to refer to the
adjudication in this regard by the Reference Court. It is found that there are no reasons assigned by the Reference Court while granting enhancement
in the amount of compensation to the extent of five times the purchase price said to be paid by the claimants. Though a discretion is available with the
Court while granting enhancement the same has to be on the basis of “guesstimate†as observed in Trishala Jain vs. State of Uttaranchal AIR
2011 SC 2458. “Guesstimate†is a work of higher certainty than mere “guess†or a “conjecture†per se. The enhancement granted by
the Reference Court is without any legal basis and has resulted in a windfall to the claimants in view of the fact that the land claimed to have been
purchased by them on 07/09/2004 was granted enhancement and its market value appreciated to the extent of five times within a span of less than
two years. It is beyond comprehension that within a small span of less than two years the value of the land would multiply five fold.
11. The observations of the Honourable Supreme Court in The Dollar Company, Madras vs. Collector of Madras (1975) 2 SCC 730 in paragraph 6 on
this aspect deserve reference :
“6. ….. An actual transaction with respect to the specific land of recent date is a guide-book that courts may not neglect when called
upon to pin the precise compensation. Viewed from a slightly different aspect, it is but fair that compulsory land-acquisition while assuring a
just equivalent should not be converted into an avaricious windfall. Can an owner who bought the land Rs.400/- per ground and laid out a
little more money on it, grouse on the score of inadequate or unjust recompense, if within a year after his own purchase he is paid by the
State 400% of what he spent for the identical land ? Neither morality nor legality is violated in such a case ; for even a fortune
marketeer’s bosom may not be uneasy at the prospect of such a fortune which he could not have bargained for when he became the
owner of the land some months before. ‘It is the duty of the State or federal government in the conduct of the inquest by which
compensation is ascertained, to see that it is just, not merely to the it was individual whose property is taken, but to the public which is to pay
for it’ (see 27 Am Jur 2d paragraph 66, p.53 of Vol. 27). â€
It would also be necessary to refer to the observations of the Honourable Supreme Court in Pehlad Ram and ors. vs. Haryana Urban Development
Authority and ors. (2014) 14 SCC 778. In the said case the claimants purchased land on 20/03/1972 and within a period of fifteen months Notification
under Section 4(1) of the said Act was issued on 19/06/1973. The claimants however did not disclose the amount of consideration for which they had
purchased the land on 20/03/1972. After referring to its earlier decision in The Dollar Co. Madras (supra) observed in paragraph 15 as under :
“15. This Court in Dollar Co. has categorically laid down that in case the land of the claimant has been acquired in close vicinity of the
purchase, the consideration paid by such claimant to the vendor is the best evidence of the market value of the land. The court should not
award more unless it is possible to reach a different conclusion. Even the appellate court should not interfere in such a fact situation unless
the judgment is based on wrong application of principle or because some important point affecting valuation has been overlooked or
misapplied. The consideration paid by the owner only a few months ago present bona fide evidence of value subject to certain exceptions
such a relationship of the parties, market conditions and terms of sale and the date of sale.â€
12. Ordinarily the sale-deed on the basis of which the claimants became owners of the acquired land shortly prior to its acquisition would be the best
piece of evidence available for seeking enhancement in the amount of compensation. It is well settled that the market value of the acquired land is the
value which a willing purchaser would pay to willing vendor. In this regard useful reference can be made to the following observations of the
Honourable Supreme Court in paragraph 5 of its decision in The Dollar Company, Madras (supra).
“5. It is true that compensation for compulsory acquisition, as governed by Section 23, gives high priority to the market value of the land
at the date of the publication of the notification under Section 4, sub-section (1). But what is market value ? It is a common place of this
branch of jurisprudence that the main criterion is what a willing purchaser would pay a willing vendor. Ordinarily a party will be entitled to
get the amount that he actually and willingly paid for a particular property, provided the transaction be bonafide and entered into with due
regard to the prevalent market conditions and is proximate in time to the relevant date under Section 23. We may even say that the best
evidence of the value of the property is the sale of the very property to which the claimant is a party. If the sale is of recent date, then all that
need normally be proved is that the sale was between a willing purchaser and a willing seller, that there has not been any appreciable rise or
fall since and that nothing has been done on the land during the short interval to raise its value (See Parks, ‘Principles & Practice of
Valuations’, p.29 â€" Eastern Law House, Calcutta â€" IV Edition, 1970)â€.
Surprisingly and for the reasons best known to the claimants they have chosen not to produce their own sale-deed on record either before the
Reference Court or before this Court. The witness examined by the claimants below Exhibit-23 has not even referred to this sale-deed or the manner
in which the claimants acquired title to the said land. In the cross-examination of said witness it was admitted by him that no registered document was
produced by the claimants on record. The only reference that can be found to this sale-deed is in the award passed by the Special Land Acquisition
Officer while referring to various sale transactions in the vicinity of the acquired land. This sale-deed is mentioned at Sr. No.35. The Special Land
Acquisition Officer did not take into consideration this sale transaction for determining the amount of compensation to be awarded by observing that
the price quoted therein appeared to be on a very high side. Further reference to the sale-deed is found in the objection raised by the claimants at
Exhibit-24 as mentioned herein above. In the absence of any explanation or justification for the non-production of the sale-deed of the acquired land by
the claimants despite the fact that it was the claimants who had themselves purchased the said land, the said aspect cannot be ignored. It appears that
the sale-deed has deliberately not been brought on record though being the best piece of evidence in the hands of the claimants.
13. It is settled position that the award made by the Land Acquisition Officer is merely an offer and the material utilised by the Land Acquisition
Officer while making his award cannot be considered by the Court unless it is produced and proved before it. The Land Acquisition Officer referred
to about 49 sale instances in his award at Exhibit-37 which included the sale instance pertaining to the acquired land. By observing that the sale
consideration of the acquired land was on a very high side he refused to take the same into consideration while determining the amount of
compensation. The claimants by not producing the sale-deed before the Reference Court or this Court and by not leading any evidence whatsoever in
that regard have failed to dispel the doubts created by the observations by the Special Land Acquisition Officer in his award that the sale consideration
of the acquired land was on a very high side. As held in Ramanlal Devchand Shah vs. State of Maharashtra (2013) 14 SCC 50, a claimant can place
reliance upon the evidence that may be adduced by a defendant in a suit to the extent the same helps the plaintiff but the documents that had not been
relied upon before the Court by the defendants cannot be referred to or treated as evidence without proper proof of the contents thereof. Hence in
absence of the sale-deed being brought before the Court by the claimants there would be no occasion whatsoever to take into consideration its price
as mentioned in the award and referred to by the Special Land Acquisition Officer. Thus though the claimants claim to have purchased the acquired
land on 07/09/2004 the Court is precluded from taking into consideration said transaction as it has not been brought before the Court despite it being
the best piece of evidence available in the hands of the claimants. The observations in Sidappa Omanna Tumari (supra) pertain to the evidentiary
value of a consent award passed under Section 11(2) of the said Act and hence are not relevant to the case in hand. Moreover, the adjudication in
L.A.C. No.235/2008 is not material as First Appeal No.637/2017 challenging the judgment of the reference Court is still pending.
14. In absence of the best piece of evidence that could have been produced by the claimants for seeking enhancement in the amount of compensation
the only other evidence produced for determining the market value of the acquired land are the agreements at Exhibits-43 to 46. These agreements
are dated 23/11/2004, 11/01/2005 and 14/01/2005. The claimants have examined the prospective purchasers in whose favour the agreements were
executed. The price agreed was ranging from Rs.160/- per sq.ft to Rs.210/-per sq. ft. The Reference Court refused to give much weightage to these
agreements on the ground that the same were unregistered and the stamp papers on which the agreements were scribed had been purchased by the
claimants themselves. Merely because the agreements in question were unregistered the same would not be a factor to disregard this piece of
evidence in its entirety. Their registration was not mandatory as held in S. Kaladevi and Prakash Sahu (supra) The said agreements can be taken into
consideration for assessing the non-agricultural potentiality of the acquired land and that prospective purchasers were interested in purchasing small
portions of the acquired land probably on account of its location. It is also a fact that till the Notification under Section 4 of the said Act was issued the
acquired land was not converted for non-agricultural use. The rates indicated in the agreements ranging from Rs.160/- per sq. ft. to Rs.210/- per sq.
ft. would provide some indication of the non-agricultural potentiality of the said land that was proposed to be purchased in the light of the law laid
down in M. K. Rafiq Saheb (supra). Be that as it may, this is the only piece of evidence on which the claimants have sought to rely for seeking
enhancement in the amount of compensation. We are mindful of the law as laid down in Sidappa Omanna Tumari (supra) that this has to be done only
as a matter of last resort.
15. While evaluating the agreements at Exhibits-43 to 46 it is seen that these agreements are for small plots from the acquired land. Each prospective
purchaser has been examined by the claimants. While admitting the execution of the agreements each prospective purchaser had stated that the
agreement came to be cancelled on the ground that the proposal for conversion of the land for non-agricultural use was not sanctioned. The
suggestion as given by the acquiring body that the agreements were created only for claiming more compensation was denied.
It can be noticed that each agreement at Exhibits-43 to 46 is on stamp paper that is purchased by one of the claimants. The agreements further do not
bear any date of execution and one has to merely proceed on the basis of the date on which the stamp paper was purchased. The rates mentioned in
the agreements range from Rs.160/- per sq. ft. to Rs.210/- per sq. ft. The rates quoted therein cannot be accepted merely on the ground that the same
are mentioned in the agreements. The totality of circumstances will have to be kept in mind while considering the rate to be applied for valuing the
acquired land on the basis of this piece of evidence. In the cross-examination of the claimant at Exhibit-39 it was suggested to him the market rates of
land in the central locality of village Ner were ranging from Rs.60/- per sq. ft and onwards. The fact that each agreement came to be cancelled on the
ground that the proposal for conversion of the land had not been sanctioned also cannot be ignored. Taking an overall view of the matter in the light of
the law as laid down in Administrator General of West Bengal and Digamber (supra) along with the nature of evidence brought on record by the
claimants we are inclined to determine the amount of compensation for the acquired agricultural land at the rate of Rs.40/- per sq. ft.
16. Having determined the rate at which compensation can be awarded it will be necessary to apply the principle of deductions by considering the law
as laid down by the Honourable Supreme Court. Such deductions are warranted in view of the fact that the acquired land is a large tract of land with
there being necessity of carrying out various development activities like providing roads and other civic amenities as the land was acquired for
rehabilitation of the residents of village Kohla. Moreover, the rate of the land has been determined by referring to agreements of small pieces of plots
in the acquired land. There is no evidence brought on record by the claimants that the acquired land was developed in any manner when the
Notification under Section 4(1) of the said Act was published. Admittedly the land was not converted for non-agricultural use. Taking into
consideration the law as reiterated in Trishala Jain (supra) we are of the view that after taking into consideration all relevant aspects a deduction of
65% would meet the ends of justice while determining the fair amount of compensation to be awarded to the claimants.
17. In the light of aforesaid discussion the compensation to be awarded to the claimants is determined in the following manner :
(a) Land acquired is 1H 61R which comes to 161000 sq. ft.
(b) The value of the land at the rate of Rs.40/- per sq. ft. comes to Rs.64,40,000/-.
(c) Applying a deduction of 65% to the aforesaid value, an amount of Rs.41,86,000/- is liable to be deducted.
(d) After such deduction the claimants would be entitled to compensation of Rs.22,54,000/- for the acquired land.
18. The points as framed are thus answered by holding that the Reference Court was not justified in enhancing the amount of compensation to
Rs.60,00,000/- per hectare. The claimants would be entitled to compensation of Rs.22,54,000/- for 1H 61 R land.
19. Accordingly the judgment dated 17/04/2012 in LAC No.263/2008 is partly modified. The claimants are held entitled to compensation of
Rs.22,54,000/- for 1H 61R land. This enhanced compensation would be payable with all statutory benefits.
The claimants have withdrawn the decreetal amount pursuant to order dated 11/03/2015 passed in First Appeal No.1026/2014. In terms of the
undertaking furnished by them the claimants are liable to refund the amount in excess of the compensation now determined that has been withdrawn
by them. They are accordingly granted time of twelve weeks to comply with the undertaking given by them.
First Appeal Nos.1026/2014 and 1095/2013 are partly allowed to the aforesaid extent. First Appeal No.1094/2013 stands dismissed. There shall be no
order as to costs.
