Oral Judgment:
The above two appeals are taken up jointly for disposal as they pertain to the land adjacent to one another acquired under the same notification under Section 4(1) of the Land Acquisition Act, 1894 (L.A. Act).
2. Land was acquired for construction of a road from Querim to Dyghode in Ponda Taluka. The Notification under section 4(1) of the L.A. Act was published in the Official Gazette dated 7/2/1989. This, inter alia, included land from survey nos. 101/1 and 105/1 of village Priol of Ponda Taluka. An area admeasuring 380 square metres was acquired from survey no. 101/1 (part) and an area of 1250 square metres was acquired from survey no. 105/1. The appellant of F. A. No. 323/2003 had laid claim for undivided 50% share in the said acquired land. The remaining 50% share belonged to Shri Sadanand G. S. Priolkar. The said acquisition, inter alia, also included land from survey nos. 101/3 and 102/1. An area of 310 square metres was acquired from survey no. 101/3 (part) whereas an area of 1775 square metres was acquired from survey no.102/1. The appellant of F. A. No. 324/2003 had laid his claim to the said acquired land. The learned Land Acquisition Officer (L.A.O.), by Award dated 25/10/1991 awarded the universal rate of Rs. 6/- per square metre to the entire land acquired vide the said notification under section 4(1) of the L.A. Act, published on 7/2/1989.
3. Not being satisfied with the offer made by the L.A.O., both the appellants filed applications under section 18 of the L.A. Act which gave rise to the Land Acquisition Cases No.170/1996 and No.168/1996. The applicant of L.A.C. No. 170/1996 who is the appellant of First Appeal No. 323/2003 had claimed the rate of Rs. 50/- per square metre before the Reference Court, whereas the applicant of L.A.C. No. 160/1996 who is the appellant of First Appeal No. 324/2003 had claimed the rate of Rs. 60/- per square metre.
4. Both the appellants had examined themselves before the Reference Court and had relied upon Judgment and Award dated 25/9/2000 passed in the L.A.C No. 102/94 and the sale deed dated 19/6/1986 executed between Naguesh Govind Alavani and Devidas Bhide.
5. The learned Reference Court, by Judgment and Award dated 25/8/2003, passed in each of the land acquisition cases, held that neither the land in L.A.C No.102/94 nor the sale deed dated 19/5/89 can be used as comparable instance for the purpose of determination of market value of the acquired land. Both the references, therefore, came to be rejected. The applicant of L.A.C No.173/1996 has filed the First Appeal No. 323/2003, whereas the applicant of L.A.C. No. 168/96 has filed First Appeal no. 324/2003.
6. Mr. R. G. Ramani, the learned counsel appearing on behalf of both the appellants argued that admittedly, the appellant of F. A. No. 323/2003 is the co-owner of the land bearing survey nos. 101/1 and 105/1, he having 50% share and Shri Sadanand G. S. Priolkar, the applicant of L.A.C No. 102/94 having the remaining 50% share. Since the land is the same, the learned counsel argued that it was totally wrong on the part of the Reference Court to hold that the land in L.A.C No. 102/94 could not be used as comparable instance for determination of market value. He further contended that since the land belonging to the appellant of F. A. No. 323/2003 and to the said Sadanand Priolkar was one and the same, the finding of the reference Court that there is no satisfactory evidence on record to show that the nature of the land in L.A.C No. 102/94 and the nature of the acquired land is similar in nature, is wrong. He further submitted that since admittedly the appellant of F. A. No. 323/2003 is the co-owner of the acquired land from survey nos. 101/1 and 105/1 and further since the other co-owner, namely Sadanand Priolkar, has been granted the enhanced rate of Rs. 15.60 per square metre for the same land in L.A.C No.102/94, the appellant of F. A. No. 323/2003 is automatically entitled to the said enhanced rate. In this regard he has relied upon “Jalandhar Improvement Trust Vs. State of Punjab and others” [ (2003) 1 SCC, 526]. He has also relied upon “A. Viswanatha Pillai and others Vs. the Special Tahsildar for Land Acquisition No. IV and others” [(1991) 4 SCC 17]. Mr. Ramani, the learned counsel appearing on behalf of the appellants, submitted that the judgments of Courts in Land Acquisition Cases or even the awards given by the Land Acquisition Officer are relevant as good piece of evidence for determining the market value of the land acquired. In this regard, he has relied upon “Karan Singh and others Vs. Union of India” [(1997) 8 SCC 186]. He further argued that it was the duty of the Reference Court to scrutinize and objectively assess the evidence tendered by the appellants before it, which according to the learned counsel, has not been done. Learned counsel has also relied upon “Special Deputy Collector and another Vs. Kurra Sambasiva Rao and others” [(1997) 6 SCC 41]”.
7. The learned counsel, appearing for the appellants, invited my attention to the cross-examination of A.W.1 in L.A.C No. 170/1996, wherein he has specifically stated that the acquired land in his case and the acquired land in case of Audhut Dessai and Sham Sunder Dessai are adjoining to each other. He pointed out that this fact as deposed by A.W.1, Pramod Priolkar has not been denied by the respondents. He also invited my attention to the Affidavit-in-Evidence of A.W.1, Auduth Dessai in L.A.C. No. 168/1996, wherein he has stated that the subject land of the award dated 25/9/2000 in L.A.C No. 102/1994 is near to his land which has been acquired and in his cross-examination he has denied the suggestion that the nature of the land and the topography of the land in the said Land Acquisition Case no. 102/1994 is not similar to that of the acquired land. The learned counsel also showed, from the award of the L.A.O. and the plan of acquisition, that the acquired lands concerned in both the above appeals are adjacent to each other. The learned counsel, therefore, argued that the appellant of the F.A. No. 324/2003 i.e. Shri Audhut Dessai had also duly proved the similarity of his acquired land with the land which was the subject matter of L.A.C. No. 102/1994. He, therefore, submitted that both the appeals be allowed and the impugned Judgments and Awards be set aside and the compensation at the rate of Rs.15.60 per square metre be awarded to both the appellants along with all the statutory benefits.
8. Per contra, Mr. Amey Kakodkar, the learned Additional Government Advocate appearing on behalf of the respondents, argued that there is absolutely no evidence on record in both the land acquisition cases regarding similarity of the plot which is subject of the sale deed dated 19/6/1986 with the acquired land of both the cases. He further argued that the plot of the sale dated 19/6/1986 is otherwise fully developed plot, as compared to the undeveloped acquired land which is not only agricultural land but also hilly land. He submitted that the said sale deed dated 19/6/1986 has been rightly rejected by the reference Court. The learned Government Advocate further argued that the appellants of both the appeals had failed to plead the similarity of the land which was subject matter of L.A.C No. 102/1994 with the acquired land and to lead cogent evidence on said similarity. He, therefore, submitted that the learned Reference Court has rightly rejected the references on account of lack of required evidence.
9. Perused the entire record and proceedings with the assistance of the learned counsel for the parties.
10. Though in the reference application, the appellant Shri Pramod Priolkar had claimed the compensation at the rate of Rs. 50/- per square metre and the appellant Shri Audhut Dessai had claimed the rate of Rs. 60/- per square metre, however, in their Affidavit-in-evidence, they both had prayed that the same compensation i.e. at the rate of Rs. 15.60 with other statutory benefits, as granted in the said L.A.C. 102/94, be granted to them. During the course of arguments also, the learned counsel for the appellants has restricted the claim to Rs. 15.60 per square metre plus the other statutory benefits.
11. Hence, the short point that arises for determination is whether the appellants are entitled to receive compensation for the acquired land at the rate of Rs. 15.60 per square metre.
12. A perusal of the statement, showing the details of land, compensation and apportionment, annexed to the Award dated 25/10/1991, passed by the L.A.O., reveals that the compensation offered by the L.A.O. has been apportioned in equal shares to Pramod Shambunath Priolkar, the appellant of F. A. No. 323/2003 and Shri Sadanand G. S. Priolkar, the applicant of L.A.C No. 102/1994. The Judgment and Award dated 25/8/2000 in L.A.C No.102/1994 produced by A.W.1, in both the cases, also reveals that the legal representatives of said Sadanand G. S. Priolkar had claimed only 50% share of the compensation in respect of the acquired land from survey nos. 101/1 and 105/1. The appellant Shri Pramod Priolkar, of the F. A. No. 323/2003 had also claimed 50% share of the compensation in respect of the said acquired land from survey nos. 101/1 and 105/1. Indisputably, therefore, Shri Pramod Priolkar, the appellant of the F. A. No. 323/2003 and Sadanand G. S. Priolkar, the applicant of L.A.C No. 102/1994 were co-owners of the acquired land admeasuring 1630 square metres from survey nos. 101/1 and 105/1. In the case of “A. Viswanatha Pillai and others” (supra), the Apex Court has observed that a co-owner is as much an owner of the entire property as a sole owner of the property. No co-owner has a definite right, title and interest in any particular item or a portion thereof. It is further observed that therefore, a co-owner of the property is an owner of the property acquired but entitled to receive compensation pro rata. It is further observed that one of the co-owners can file a suit and recover the property against strangers and the decree would enure to all the co-owners. It is further observed by the Hon'ble Supreme court, in the case supra, that when one of the co-owners or coparceners made a statement in his reference application that himself and his brothers are dissatisfied with the award made by the Collector and that they are entitled to higher compensation, it would be clear that he was making a request, though not expressly stated so but by necessary implication that he was acting on his behalf and on behalf of his other co-owners or coparceners and was seeking a reference on behalf of other co-owners as well. In the case of “JalandharImprovement Trust” (supra), the Apex Court, in paragraph 5 thereof, has observed thus:
“Having regard to the view we propose to take and the manner of disposal intended to be given, it is unnecessary for us to even advert to the relevance or applicability of Section 28-A of the Act to the case of the nature before us. The 4th respondent indisputably is a co-owner along with her children who were added as Petitioners 2 to 5 to the award dated 5/2/1986, in which case, even on the first principles of law one co-owner is entitled to have the benefit of the enhanced compensation given in respect of the other co-owners in a reference made at his instance in respect of the land acquired, which belonged to all of them, jointly. So far as the fact that in this case the 4th respondent's application for reference under Section 18 was rejected by the Tribunal ultimately on the ground that the reference was made on a belated application, does not make any difference and, is no reason, in our view, to differentiate the claims of such co-owners whose claims came to be really sustained and that of the 4th respondent, for differential treatment. We are fortified to some extent in the view expressed above, by the principles laid down by this Court in the decision reported in A. Viswanatha Pillai V. Special Tahsildar for Land Acquisition. [(1991) 4 SCC 17: AIR 1991 1966].”
13. In view of the above, when the appellant of F. A. No. 323/2003, namely Shri Pramod Priolkar, had relied upon and produced the Judgment and Award dated 25/9/2000 passed in L.A.C. No. 102/1994, in which the applicant was the other co-owner of the same acquired land and when admittedly neither said Sadanand Priolkar nor the respondents had challenged said award dated 25/9/2000, it was not open for the learned Reference Court to reject the said award by holding that there was no satisfactory evidence on record to show that the nature of the land in L.A.C NO. 102/1994 and the nature of acquired land are similar in nature. The acquired land concerned in both the land acquisition cases was the same, in which the applicant of L.A.C. 102/1994 and the appellant of F. A. 323/2003 had equal share.
14. There can be no dispute that a previous judgment of the Reference Court in land acquisition case can be relied upon by the parties for determination of the market value of the acquired land, if it could form the basis for determination of the market value of the same. In the case of “Karan Singh and others” (supra), the Apex Court has held that the judgments of Courts in Land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as good piece of evidence for determining the market value of land acquired under certain circumstances, one of the circumstances being that such an award or judgment of the court of law must be a previous judgment. It is only the previous judgment of a court or an award which can be made the basis for assessment of the market value of the acquired land subject to party relying on such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land. In the present cases, the judgment and award in L.A.C. No. 102/1994, relied upon by the appellants and passed by the Reference Court, was dated 25/9/2000, which is a previous judgment. Therefore, the parties could have certainly relied upon the same. Since the L.A.C. No. 102/1994 pertains to the same acquired land from survey nos. 101/1 and 105/1, to which the L.A.C. No. 170/1996 pertains to, the question of proving the similarity of the land does not at all arise. The finding of the learned reference Court in L.A.C No. 170/1996 that there is no satisfactory evidence on record to show that the nature of the land in L.A.C No. 102/1994 and that of the acquired land is similar is, therefore, perverse and not sustainable. There is no dispute that the judgment and award in the said L.A.C No. 102/1994 having not been challenged by anyone, has attained finality. Therefore, the applicant of said L.A.C. No.170/1996 who is the appellant of F.A. No. 323/2003 was certainly entitled to the enhancement of compensation in respect of the acquired land at the rate of Rs.15.60 per square metre.
15. In the said L.A.C No. 170/96, A.W.1, Pramod Priolkar had deposed in his cross-examination that the acquired land in his case and the acquired land in the case of Audhut Dessai, (the appellant of F.A. No. 324/2003) and of Sham Sunder Dessai are adjoining to each other. In the L.A.C. No. 168/96, A.W.1, Shri Auduth Dessai had stated in his Affidavit-in-Evidence that the subject land regarding which the award dated 25/9/2000 was passed is near his land which has been acquired. In his cross-examination, he had denied the suggestion that the nature of the land and the typography of the land in the said L.A.C No. 102/1994 is not similar to that of the acquired land. A perusal of the award dated 25/10/1991, passed by the L.A.O. and the plan of acquisition annexed to the same reveals that the acquired land of L.A.C No. 102/1994 and that of L.A.C No. 168/1996 are adjacent to one another. Besides the above, it is seen that land from various survey holdings was acquired vide the same notification. The learned L.A.O. has mentioned at paragraph 6 of the award that the lands under acquisition mostly consist of parts of cashew gardens and there are bharad lands and parts of private lands. Further at paragraph 10 of the award, the learned L.A.O. has specifically stated that the nature of the lands under acquisition is bharad type and slightly hilly at some part and considering the said nature, he feels that Rs. 6/- per square metre will be fair and reasonable price for the land in question. Thus, an universal rate of Rs. 6/- per square metre was offered to all the lands which were acquired under the said notification. Considering all the the above factors, the learned Reference Court in L.A.C No.168/1996 ought not to have held that there is no satisfactory evidence on record to show that the property in L.A.C No. 102/1994 and the acquired property are similar in nature. Considering that similar land, in close vicinity, was awarded the rate of Rs. 15.60 by the Reference Court, in a previous reference i.e. in L.A.C No. 102/1994 pertaining to the land acquired under the same notification, I am of the considered opinion that the appellant of F.A. No. 324/2003 who was the applicant of L.A.C No.168/1996, is also entitled to receive the compensation at the rate of Rs.15.60 per square metre.
16. There cannot be any error in not relying upon the sale deed dated 19/6/1986. It is seen that in both the Land acquisition cases, the learned Reference Court has observed that the applicants have not denied that the land in the vicinity of the acquired land was sold at the rate of Rs. 5/- per square metre at the time of the present acquisition. Actually, the applicants had answered that they do not know whether one Devidas Bhide and one ShivKumar Patil had purchased the land by sale deeds dated 19/5/1989 and 19/5/1989, respectively at the rate of Rs. 5/- per square metre after the acquisition of the present land. Since the applicants had shown their ignorance, it was incumbent upon the respondents to have led evidence and produced on record the said sale deeds and appropriate evidence to prove the similarity between the lands of the said sale deeds and the acquired land, which was not done by the respondents. Therefore, the trial court ought not to have given any weightage to the said suggestion. But the Reference Court could not have rejected the Award in L.A.C. No. 102/1994.
17. The point for determination is therefore answered in the affirmative.
18. In view of the discussion supra, the impugned judgments and Awards in Land Acquisition Cases No. 170/1996 and 168/1996 are not in accordance with the settled principles of law and they are bound to be set aside. The appellants are bound to succeed in both the appeals.
19. In the result, both the appeals are allowed.
(a) The impugned Judgments and Awards dated 25/8/2003 passed by the Reference court in L.A.C No. 170/1996 and L.A.C. No. 168/1996 are quashed and set aside.
(b) The references under L.A.C No.170/1996 and L.A.C. No.168/1996 are partly allowed with costs.
(c) The market price of the acquired lands in both the said references is fixed at Rs.15.60 per square metre.
(d) The applicants of the said references (appellants) shall be entitled to receive all the statutory benefits under the Land Acquisition Act, 1894.
(e) Insofar as the applicant of L.A.C NO. 170/1996 (appellant of F. A. No. 323/2003) is concerned, he shall be entitled to right to half share that is to say 50% of the compensation shall be paid to him.
(f) The amount already paid to the appellants, if any, shall be adjusted.
(g) Costs of Rs. 2000/- each shall be paid by the respondents to the appellants.