| SooperKanoon Citation | sooperkanoon.com/358056 |
| Subject | Property |
| Court | Mumbai High Court |
| Decided On | Jun-19-2008 |
| Case Number | First Appeal No. 210 of 2003 in L.A.R. No. 118 of 1994 and First Appeal No. 1535 of 2002 and First A |
| Judge | Swatanter Kumar, C.J. and ;V.M. Kanade, J. |
| Reported in | 2008(5)BomCR334 |
| Acts | Land Acquisition Act, 1894 - Sections 4, 6, 11, 18, 23(1)(A), 28A and 28A(3) |
| Appellant | The State of Maharashtra Through the Special Land Acquisition Officer |
| Respondent | Smt. Parvatibai Vitthal Hudar (Deceased) L.R. of Deceased Sau. Sushila Chandrakant Patil Through Pow |
| Appellant Advocate | K.K. Tated, AGP |
| Respondent Advocate | S.M. Kamble, Adv. |
| Disposition | Appeal dismissed |
Excerpt:
property -- land acquisition -- enhancement of compensation - section 4, 6, 11, 23(1)(a), 28a and 28a(3) of land acquisition act, 1894 -- land acquired for public purpose and compensation paid ranging between rs. 1.50 to rs. 6 per sq. mtr - claimants filed petition under section 28a of the act for enhancement - raised the compensation at the rate ranging from rs. 6 to rs. 10 per sq. mtr. - claimants dissatisfied with the compensation granted, filed petitions under section 28a(3) before the collector - collector referred petitions to reference court - reference court enhanced compensation ranging from rs. 18 to rs. 27 per sq. mtr. after categorizing lands into four different categories -- hence, present appeals by state against enhancement of compensation and claimants filed appeals claiming compensation at the rate of rs. 60 per sq. mtr - held, compensation awarded upon categorisation of the lands identical to the compensation awarded in mhatre's case (supra) - claimants would not be entitled to the benefits accruing from section 23(1)(a) wherever the awards under section 11 are prior to the cut off date - appeals filed by state allowed - appeals dismissed - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 1. state of maharashtra issued a notification under section 4 of the land acquisition act, 1894 (hereinafter referred to as the act) on 3rd february 1970 intending to acquire lands for a public purpose, namely, development and providing of plots for residential as well as commercial purposes and for an industrial complex from the revenue estate of village panvel. from the bombay-poona highway as well as rs. the state as well as the claimants commonly agreed that the evidence led in the present case is similar to the evidence which was allowed in first appeal no. 754 of 1986 as well as in first appeal no. 382 of 1984 and 875 1985 as well as exhibit 25, in addition to the other evidence, which were also considered by another division bench of this court in the case of state of maharashtra v. 604 of 1995, a division bench of this court considered all the exhibits which were proved in the present case as well as the division bench judgment of this court in the case of nama padu hudar (supra) and smt.swatanter kumar, c.j.1. state of maharashtra issued a notification under section 4 of the land acquisition act, 1894 (hereinafter referred to as the act) on 3rd february 1970 intending to acquire lands for a public purpose, namely, development and providing of plots for residential as well as commercial purposes and for an industrial complex from the revenue estate of village panvel. cidco was the developing authority for whose benefit the lands had been acquired and eventually transferred to the said corporation. in furtherance to this notification, declaration under section 6 of the act was issued on 11th january 1973. the slao exercising the powers of the collector under the provisions of the act and after adopting the prescribed procedure, made an award under section 11 of the act on 21st january 1981. in this award, the slao awarded compensation at the rate of rs. 1.50/- to rs. 6/- per sq. mtr. for the lands acquired. the possession of the land was taken by the official respondents on different dates including 22nd march 1974. the claimants had not preferred reference under section 18 of the act and the award passed by the slao remained binding between the parties. during the intervening period, certain judgments were pronounced by the courts giving compensation at the rate of rs. 15/- per sq. mtr. to the lands having distance of 1.1/2 kms. from the bombay-poona highway as well as rs. 25/-to rs. 30/- per sq. mtr. to the lands alleged to be near to the national highway. being aware of these judgments in relation to the acquisition of the lands from the same village, the claimants filed petitions under section 28a of the act. the slao awarded compensation at the rate of rs. 6/- to rs. 10/- per square meter. the claimants being dissatisfied with the compensation granted by the slao under section 28a of the act, filed petitions under section 28a(3) of the act before the collector and prayed for award of compensation at the rate of rs. 60/- per sq. mtr. the collector referred the application to the reference court. after giving opportunities to the parties to lead evidence, the learned reference court decided all these references under section 28a(3) of the act vide its award dated 12th january 2000 and awarded following compensation to the claimants while categorising their acquired lands into four different categories:group i : the lands which are very close to railway station and panvel-matheran state highway are fetched more value and those lands are entitled to have more value to the extent of rs. 27/- per square meter. group ii : the lands which are abutting to the bombay-poona highway within the 300 meters are entitled to have a value of rs. 25/- per square meter. group iii : the lands which are at a distance of more than 300 meters from bombay-poona highway to the extent of 1000 meters are entitled to receive the compensation at the rate of rs. 22/- per square meter. group iv : and the lands those are at a distance of beyond the 1000 meters from the bombay-poona highway are liable to receive the compensation at the rate of rs. 18/- per square meter. 2. the state felt aggrieved from the award of the reference court dated 12th january 2000 and preferred 25 appeals though by the reference in question 36 claim petitions were decided. in addition to this, the claimants have filed 25 appeals against the same judgment claiming compensation at the rate of rs. 60/- per sq. mtr. thus, in all, there are 50 appeals which are being disposed of by this common judgment. 3. the witnesses of the claimants were examined as cw-1 and cw-2 and they proved on record exhibits 23 to exhibit 35. amongst these exhibits which were tendered and proved during recording of the statements of the two witnesses, were the judgments of the courts and/or the statements recorded by the courts in different land references. the learned reference court mainly placed reliance on the judgment of the high court (exhibit 25) in first appeal no. 754 of 1986 in the case of nama padu hudar and ors. v. the state of maharashtra 1993 (3) bom. c.r. 54, where the high court had decided that the claimants were entitled to receive compensation at the rate of rs. 25/- per sq. mtr. on 26th february 1993. 4. in the facts and circumstances of the present case, it is not necessary for us to discuss the evidence or the merits or otherwise of the arguments addressed at any greater length. the learned counsel appearing for the parties i.e. the state as well as the claimants commonly agreed that the evidence led in the present case is similar to the evidence which was allowed in first appeal no. 754 of 1986 as well as in first appeal no. 604 of 1995 (state of maharashtra v. prakash vasudeo deodhar). they further agreed that thus the judgments of the courts rendered in either of these cases would squarely apply on fact and law to the present appeals. it is also agreed by the learned counsel appearing before us that they are not challenging the belting and/or the grouping of lands as effected by the reference court and/or as accepted by the judgments of the high court in the aforementioned judgments. in the above judgments, judgments of the high court in first appeal nos. 382 of 1984 and 875 1985 as well as exhibit 25, in addition to the other evidence, which were also considered by another division bench of this court in the case of state of maharashtra v. smt. kamali keshav mhatre and ors. 2005 (1) all mr 459, were referred. 5. in view of the common submission made by the learned counsel appearing for the parties, there is hardly any controversy that requires determination by the court. the learned counsel appearing for the state argued that the claimants would not be entitled to the special benefits accruing from the provisions of section 23(1)(a) of the act wherever the award made under section 11 was prior to the cut off date; i.e. 30th april 1982. there was hardly any opposition to this point but in any case even this point is fairly covered by the judgments referred to above by us. 6. we may notice that in first appeal no. 604 of 1995, a division bench of this court considered all the exhibits which were proved in the present case as well as the division bench judgment of this court in the case of nama padu hudar (supra) and smt.kamali keshav mhatre (supra). after detailed discussion, the court accepted the view expressed by the division bench in the case of smt.kamali keshav mhatre (supra) and awarded compensation upon categorisation of the lands identical to the compensation awarded in mhatre'scase (supra). the reliefs granted in these appeals were as under:(a) lands falling within 750 meters of the national highway rs. 25/- per sq. mtr. (b) land falling within 750 to 1500 meters of the national highway rs. 23/- per sq. mtr. (c) land falling beyond 1500 meters of the national highway rs. 21/- per sq. mtr. 7. in addition to this, we may clarify that in first appeal no. 604 of 1995 (state of maharashtra v. prakash vasudeo deodhar), it has also been held that the claimants would not be entitled to the benefits accruing from section 23(1)(a) wherever the awards under section 11 are prior to the cut off date. resultantly, all the 25 state appeals are thus allowed to the limited extent as afore-indicated and all the appeals filed by the claimants are dismissed. however, the parties are left to bear their own costs.
Judgment:Swatanter Kumar, C.J.
1. State of Maharashtra issued a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) on 3rd February 1970 intending to acquire lands for a public purpose, namely, development and providing of plots for residential as well as commercial purposes and for an industrial complex from the revenue estate of Village Panvel. CIDCO was the developing authority for whose benefit the lands had been acquired and eventually transferred to the said Corporation. In furtherance to this Notification, declaration under Section 6 of the Act was issued on 11th January 1973. The SLAO exercising the powers of the Collector under the provisions of the Act and after adopting the prescribed procedure, made an Award under Section 11 of the Act on 21st January 1981. In this Award, the SLAO awarded compensation at the rate of Rs. 1.50/- to Rs. 6/- per sq. mtr. for the lands acquired. The possession of the land was taken by the official Respondents on different dates including 22nd March 1974. The Claimants had not preferred reference under Section 18 of the Act and the Award passed by the SLAO remained binding between the parties. During the intervening period, certain judgments were pronounced by the Courts giving compensation at the rate of Rs. 15/- per sq. mtr. to the lands having distance of 1.1/2 kms. from the Bombay-Poona Highway as well as Rs. 25/-to Rs. 30/- per sq. mtr. to the lands alleged to be near to the National Highway. Being aware of these judgments in relation to the acquisition of the lands from the same village, the Claimants filed Petitions under Section 28A of the Act. The SLAO awarded compensation at the rate of Rs. 6/- to Rs. 10/- per square meter. The Claimants being dissatisfied with the compensation granted by the SLAO under Section 28A of the Act, filed petitions under Section 28A(3) of the Act before the Collector and prayed for award of compensation at the rate of Rs. 60/- per sq. mtr. The Collector referred the application to the Reference Court. After giving opportunities to the parties to lead evidence, the learned Reference Court decided all these References under Section 28A(3) of the Act vide its Award dated 12th January 2000 and awarded following compensation to the Claimants while categorising their acquired lands into four different categories:
Group I : The lands which are very close to Railway Station and Panvel-Matheran State Highway are fetched more value and those lands are entitled to have more value to the extent of Rs. 27/- per Square meter.
Group II : The lands which are abutting to the Bombay-Poona Highway within the 300 meters are entitled to have a value of Rs. 25/- per Square meter.
Group III : The lands which are at a distance of more than 300 meters from Bombay-Poona Highway to the extent of 1000 meters are entitled to receive the compensation at the rate of Rs. 22/- per Square meter. Group IV : And the lands those are at a distance of beyond the 1000 meters from the Bombay-Poona Highway are liable to receive the compensation at the rate of Rs. 18/- per Square meter.
2. The State felt aggrieved from the Award of the Reference Court dated 12th January 2000 and preferred 25 Appeals though by the Reference in question 36 claim Petitions were decided. In addition to this, the Claimants have filed 25 Appeals against the same judgment claiming compensation at the rate of Rs. 60/- per sq. mtr. Thus, in all, there are 50 Appeals which are being disposed of by this common judgment.
3. The witnesses of the Claimants were examined as CW-1 and CW-2 and they proved on record Exhibits 23 to Exhibit 35. Amongst these exhibits which were tendered and proved during recording of the statements of the two witnesses, were the judgments of the Courts and/or the statements recorded by the Courts in different land References. The learned Reference Court mainly placed reliance on the judgment of the High Court (Exhibit 25) in First Appeal No. 754 of 1986 in the case of Nama Padu Hudar and Ors. v. The State of Maharashtra 1993 (3) Bom. C.R. 54, where the High Court had decided that the Claimants were entitled to receive compensation at the rate of Rs. 25/- per sq. mtr. on 26th February 1993.
4. In the facts and circumstances of the present case, it is not necessary for us to discuss the evidence or the merits or otherwise of the arguments addressed at any greater length. The learned Counsel appearing for the parties i.e. the State as well as the Claimants commonly agreed that the evidence led in the present case is similar to the evidence which was allowed in First Appeal No. 754 of 1986 as well as in First Appeal No. 604 of 1995 (State of Maharashtra v. Prakash Vasudeo Deodhar). They further agreed that thus the judgments of the Courts rendered in either of these cases would squarely apply on fact and law to the present Appeals. It is also agreed by the learned Counsel appearing before us that they are not challenging the belting and/or the grouping of lands as effected by the Reference Court and/or as accepted by the judgments of the High Court in the aforementioned judgments. In the above judgments, judgments of the High Court in First Appeal Nos. 382 of 1984 and 875 1985 as well as Exhibit 25, in addition to the other evidence, which were also considered by another Division Bench of this Court in the case of State of Maharashtra v. Smt. Kamali Keshav Mhatre and Ors. 2005 (1) All MR 459, were referred.
5. In view of the common submission made by the learned Counsel appearing for the parties, there is hardly any controversy that requires determination by the Court. The learned Counsel appearing for the State argued that the Claimants would not be entitled to the special benefits accruing from the provisions of Section 23(1)(A) of the Act wherever the Award made under Section 11 was prior to the cut off date; i.e. 30th April 1982. There was hardly any opposition to this point but in any case even this point is fairly covered by the judgments referred to above by us.
6. We may notice that in First Appeal No. 604 of 1995, a Division Bench of this Court considered all the exhibits which were proved in the present case as well as the Division Bench judgment of this Court in the case of Nama Padu Hudar (supra) and Smt.Kamali Keshav Mhatre (supra). After detailed discussion, the Court accepted the view expressed by the Division Bench in the case of Smt.Kamali Keshav Mhatre (supra) and awarded compensation upon categorisation of the lands identical to the compensation awarded in Mhatre'scase (supra). The reliefs granted in these Appeals were as under:
(a) Lands falling within 750 meters of the National Highway Rs. 25/- per sq. mtr.
(b) Land falling within 750 to 1500 meters of the National Highway Rs. 23/- per sq. mtr.
(c) Land falling beyond 1500 meters of the National Highway Rs. 21/- per sq. mtr.
7. In addition to this, we may clarify that in First Appeal No. 604 of 1995 (State of Maharashtra v. Prakash Vasudeo Deodhar), it has also been held that the Claimants would not be entitled to the benefits accruing from Section 23(1)(A) wherever the Awards under Section 11 are prior to the cut off date. Resultantly, all the 25 State Appeals are thus allowed to the limited extent as afore-indicated and all the Appeals filed by the Claimants are dismissed. However, the parties are left to bear their own costs.