Special Land Acquisition Officer Vs. Bawa Bir Singh S/O Bawa Gurumukhsingh and anr. - Court Judgment

Excerpt:
(i) property - compensation - section 18 of land and acquisition act, 1894 - land acquired by special land acquisition officer (sloa) - compensation granted by way of award - reference made to high court for enhancement of compensation - unless award suffer from inherent defect it cannot be considered by present court - could not be proved that award suffers from inherent defect - reference dismissed. (ii) onus - section 18 of land and acquisition act, 1894 - in reference cases onus lies on claimant to prove that compensation allowed by slao is inadequate - as per section 12 award is final and conclusive in case such initial burden not discharged by claimant. (iii) reference - section 18 of land and acquisition act, 1894 - as per law laid by apex court reference under section 18 not appeal against award - court cannot take into account material relied upon by slao - award is not treated as judgment of trial court which is open to challenge before high court - it is only an offer and court has to treat reference as an original proceeding and determine market value afresh on basis of material produced before it. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - the claimants not being satisfied with the quantum, applied to the slao for making a reference to this court for enhancement at the rate of rs. tumari, air1995sc840 and in particular the following observations made in para 7: the legislative scheme contained in sections 12, 18 and 19 while on the one hand entitled the claimant not to accept the award under section 11 as to the amount of compensation determined as payable for his acquired land and seek a reference to the court for determination of the amount of compensation payable for his land, on the other hand requires him to make good before the court the objection raised by him as regards the inadequacy of the amount of compensation allowed for his land under the award made under section 11, with a view to enable the court to determine the amount of compensation exceeding the amount of compensation allowed by the award under section 11, be it by reference to the improbabilities inherent in the award itself or on the evidence aliunde adduced by him to that effect. slao, air1988sc1652 .in view of this settled position, the alleged defect or discrepancy in a award pointed out by shri merchant for the first time in his argument, cannot be considered on account of the claimant's failure 'to make good before the court the objection raised by him as regards the inadequacy of the amount of compensation.j.a. patil, j.1. this is a reference under section 18 of the land acquisition act, 1894 (for short the act). the claimants were the owners of the plots of land bearing c.t.s. nos. 1109 (part). 1110 (part) and 1111 (part) of village mulund taluka kurla. all the three plots are contiguous and they totally admeasure 8730 sq. metres. notification under section 4 of the act was issued on 14-9-1973 and published in the government gazette on 20-12-1973. notification under section 6 of the act was issued on 24-7-1974 and published on 5-9-1974. the land has been acquired for the bombay municipal corporation for the purpose of fire brigade station and road. the special land acquisition officer, bombay and suburban district (for short, slao) passed his award on 10-1-1980, giving a total compensation of rs. 14,05,579/- at the rate of rs. 140/- per square metre. the claimants accepted the said compensation under protest on 23-1-1980, on which date, possession of the acquired land was taken and handed over to the acquiring body. the claimants not being satisfied with the quantum, applied to the slao for making a reference to this court for enhancement at the rate of rs. 250/- per sq. metre. 2. the description of the land as given by the slao is that it is situated in mulund (west) at a distance of about one kilometer from the mulund railway station and abutting the lal bahadur shastri marg (old bombay-agra road). the land is situated in a residential zone and just opposite to it, beyond the road, is industrial zone. the area is developed area and all facilities are available there. 3. on behalf of the claimants, two witnesses have been examined. they are rajiv kulwant singh bawa and expert valuer harshad maniar. no witness is examined on behalf of the acquiring body.4. maniar has stated that he visited the land under acquisition on 27-3-2001 and found that there was a 60 feet wide road and 30 feet wide road constructed on the site and the remaining area was developed for fire brigade station. he produced and proved his valuation report along with the plan (exhibit c-21 collectively). in the said report, he has made a reference to the 12 sale instances relied upon by the slao and pointed out that 8 out of them are of land and buildings and 2 instances are of earlier awards. according to him only 2 instances, i.e. instance nos. 3 and 8 are comparable and out of them instance no. 3 is quite comparable. as regards instance no. 8, maniar has later on explained that it is not a comparable sale instance. it is a sale transaction dated 29-6-1972 of a plot of land admeasuring 418 sq. metres bearing survey no. 1078/79/b of vrindavan nagar for a consideration of rs. 75,000/-. the rate of the land works out to rs. 179.42 per sq. metre. maniar has pointed out the comparable merits and demerits of both the lands with reference to certain factors such as situation, location, relevant date of valuation, zone, permissible f.s.i. encumbrances and area. he has stated in his that the acquired land is abutting the 100 ft. wide l.b.s. marg and 90 feet. wide l.d.d. marg. whereas the land in sale instance no. 3 is abutting the 25 ft. wide internal access road. he has, therefore, given 20 per cent weightage to the acquired land. on the factor of area, he has pointed out that the land in sale instance no. 3 is only 418 sq. metres, whereas the acquired land is 8,730 sq. metres, i.e. about 20 times smaller than the acquired land. on the other factors, except the date of valuation, he finds both the lands at par. however, on the factor of date of valuation, he has given 15 per cent rise per annum as the relevant date of the sale instance is 29-6-1972 and that of the acquired land is 20-12-1973. maniar has worked out the rise in price at rs. 41.44 for the period of 1 year and 5 months and calculated the price of the acquired land at rs. 179.42 per sq.mtrs plus rs. 41.44 per sq. metre = rs. 220/86 per sq. metre. thus, in the opinion of maniar, the fair market value of the acquired land will be rs. 220/- per sq. metre. 5. para 8 of the evidence of maniar shows that he has made some mistake with regard to the area of the land in sale instance no. 3. it consists of two plots i.e. plot no. 1078 and 108/79/b each admeasuring 418 sq. metres. but maniar took into consideration the area of plot no. 1078/79/b only and stated that the value of the land in sale instance no. 3 is rs. 179.42. however, when he realised his mistake, he stated that the rate of the land in sale instance no. 3 is rs. 89.71 per sq. metre. this admission on his part goes to show that the basis for valuing the acquired land is not correct. the following questions and answers in para 12 of the evidence of maniar make the position clear:'question: you have valued the acquired plot at the rate of rs. 220/- per sq. metre while comparing it with the plot under sale instance no. 3. is that correct?yes: yes.question : this valuation of rs. 220/- was made by you on the basis that the area of plot under sale instance no. 3 is 418 sq. metres. is that correct?ans. yes.question : according to you, on the basis of evidence given today, the correct area of the plot under sale instance no. 3 is 836 sq. metres. is that correct?ans. yes.question : if the area of plot under instance no. 3 is taken into account, how would you value the acquired plot on the very same factors which you have taken into account while submitting your report?ans. rs. 109.51 per sq. metre.'6. maniar further stated that the acquired land was not under reservation except 60 feet wide development plan road, while, according to him, covers an area of 884 sq. metres. but when the dimensions of the acquired land and the fact that the said road runs throughout the eastern side of the land, were brought to his notice, maniar had to admit that the area covered by the said road comes to 1900 sq. metres and not 884 sq. metres. finally, he categorically admitted:'it is correct report that on the basis of my valuation report and the evidence given, the rate of the acquired plot should be rs. 109.51 per sq. metre.'it will thus be seen that the aforesaid admissions by maniar take out the very basis of the claim of the claimants that the market value of the acquired land should be given at the rate of rs. 250/- per sq. metre. 7. being faced with this situation. shri merchant, the learned advocate for the claimants submitted that if the evidence of the expert is discarded, then the court has to fall upon the award and see if the price offered by the slao is just. referring to the provisions of sections 23 and 24 of the act, shri merchant urged that the court can consider whether there are any inherent defects in the award. he pointed out that as per the slao, the average valuation comes to rs. 269/- per sq. metre. therefore, according to shri merchant there is no reason for reducing that rate to rs. 140/- per sq. metre. in support of his submission, shri merchant relied upon the decision in slao v. s.o. tumari, : air1995sc840 and in particular the following observations made in para 7:'the legislative scheme contained in sections 12, 18 and 19 while on the one hand entitled the claimant not to accept the award under section 11 as to the amount of compensation determined as payable for his acquired land and seek a reference to the court for determination of the amount of compensation payable for his land, on the other hand requires him to make good before the court the objection raised by him as regards the inadequacy of the amount of compensation allowed for his land under the award made under section 11, with a view to enable the court to determine the amount of compensation exceeding the amount of compensation allowed by the award under section 11, be it by reference to the improbabilities inherent in the award itself or on the evidence aliunde adduced by him to that effect.'shri u.j. makhija, the learned counsel for the b.m.c. on the other hand, submitted that none of the witnesses has uttered a single word that there are inherent defects in the award. the position of a claimant in a reference is that of a plaintiff in the suit and the initial burden of proving that the compensation allowed by the slao is inadequate is on the claimant. but if this initial burden is not discharged, the award is final and conclusive evidence under section 12 of the act. in the instant case, neither rajiv kulwant singh (c.w. 1) nor the expert valuer maniar (c.w. 2) has stated anything in their evidence before the court that there is any discrepancy or defect in the award with regard to the determination of the rate per sq. metre. the reference under section 18 is not an appeal against the award and the court cannot take into account the material relied upon by the slao. the award is not to be treated as a judgment of the trial court, open to challenge before the court hearing the reference. it is only an offer and the court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of material produced before it vide chimanlal v. slao, : air1988sc1652 . in view of this settled position, the alleged defect or discrepancy in a award pointed out by shri merchant for the first time in his argument, cannot be considered on account of the claimant's failure 'to make good before the court the objection raised by him as regards the inadequacy of the amount of compensation. ......'consequently, the award deserves to be affirmed and reference rejected.8. in the result, the reference is dismissed.9. certified copy expedited. authenticated copy by the associate is allowed.