State of Goa and anr. Vs. Shri Prabhakar Shivram Naik - Court Judgment

Excerpt:
[a] land acquisition act, 1894 - sections 18, 23 -- acquisition of land - compensation - determination - comparable sale deed - acquired property undeveloped and one metre below road level - land abutting highway and certain area likely to come under road widening scheme - deduction of about 35% ought to have been made by the reference court.;the trial court has not deducted any amount towards developmental cost of the applicant's property whatsoever. however, the evidence shows that the respondent's property was near developed plot, the respondent firm having purchased the same with the approval of the then town planning committee and it appears that only conversion was not obtained. from the evidence of p. w. 2 shri paras it can be gathered that the acquired plot was about a metre below the road level. it is true that p. w. 2 paras has stated that it had an advantage of a basement in case construction was made, but it is to be noted that not everyone is interested in construction of basements when house is being constructed and it is also not anybody's case that with a depth of a meter a basement could be constructed. moreover, it can be seen that the respondent's plot was also abutting the national highway and therefore certain area of the same would have come under the road widening scheme of the government. these three minus factors which the trial court certainly ought to have taken into consideration before straightaway using the price fetched for the plot of sale deed - exh. 12 for fixing the compensation payable to the respondent's plot. there is no dispute that the sale deed of exh. 12 could not be used as guide. admittedly the respondent's plot was situated on the left side of the national highway as one goes from panaji to mapusa while the plot exh. 12 was situated on the right of the said highway and the distance between both being 700 metres. considering the minus points of the respondent's plot in relation to the plot of sale deed - exh. 12, a deduction of at least 35% ought to have been made. ;[b] land acquisition act, 1894 - sections 18, 23 -- acquisition of land - compensation - determination - comparable sale deeds - in one sale deed the land was sold at rs. 100/- per sq. m. while in the other the land was sold at rs. 178/- per sq. m. - based on single sale deed the reference court concluded that there was price increase of rs. 9.85/- per sq. m. per month - conclusion on only one single instance not correct. ;based only on only sale deed it was not possible to jump to the conclusion that there was increase in market price of land at the rate of rs. 9.85 per sq. m. per month. admittedly neither the buyer nor the seller of the sale deed - exh. 13 was examined and who was examined was an attesting witness who happened to be the nephew of the buyer of the said plot - exh. 13. it appears that the plot of sale deed - exh. 13 had a river view and possibly on that count the buyers had paid a price which was slightly more than the price paid for the sale deed exh. 12. there could be other reasons as well, but from the very sale deed at exh. 13 one could not jump to the conclusion that there was price increase to the extent of rs. 9.85 per sq. m. per month in the locality. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - union of india air1997sc3889 wherein the hon'ble supreme court has again reiterated the position that the judgments of courts in land acquisition cases or awards given by the land acquisition officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances and one of the circumstance being that such an award or judgment of the court of law must be a previous judgment. 12. there could be other reasons as well, but from the very sale deed at exh.n.a. britto, j.1. the state of goa has filed the present appeal against the judgment/ award dated 29.7.1997 of the learned addl. district judge, panaji in l.a.c. no. 111/90.2. briefly stated by virtue of notification issued under section 4(1) of the land acquisition act, 1894 and published in government gazette dated 7.1.82 the government acquired 92,745 sq. metres of land situated at porvorim for residential development under integrated development programme and in that was included a plot of land no. 13 admeasuring 1250 sq. metres belonging to the firm m/s. shivram dattaram pankar of which the respondent was a partner and the l.a.o. by virtue of award dated 31.1.1984 awarded to the respondent compensation for the said acquisition at the rate of rs. 25/- per sq. m. and as against the same respondent sought a reference to the district court, panaji and the learned addl. district judge by his award dated 29.7.97 enhanced the compensation to rs. 119.70 per sq. m.3. the first submission made by shri bharne, learned government advocate is that the trial court has done fallacious exercise by fixing the market value based on an average price of two sale deeds.4. however, learned advocate shri mulgaonkar on behalf of the respondent has submitted that the learned trial court used the sale deed dated 12.10.81 -exh. 12 for the purpose of fixing the compensation payable to the respondent while the learned trial court has used the sale deed dated 17.6.82 for the purpose of granting increase of price to the respondent. i am entirely in agreement with the submission of learned advocate shri mulgaonkar that the learned trial court has used the sale deed dated 12.10.81 - exh. 12 as a guide to enhance compensation payable to the respondent while the learned trial court has used the sale deed dated 7.6.82 for the purpose of granting an increase on sale price to the respondent.5. the next submission of shri bharne, learned government advocate is that the plot in sale deed - exh. 12 was a developed plot while the plot of the respondent was not a developed plot and therefore the learned trial court ought to have taken at least 65% towards the cost of development. shri bharne has placed reliance on the case of basavua (smt.) and ors. v. spl. land acquisition officer and ors. : [1996]3scr500 in support of his submission that 65% of deduction was made by the hon'ble supreme court. in this case the hon'ble supreme court reiterated the principle that developmental charges on deduction between 33-1/3 to 53% was held to be valid by that court in several judgments. as far as the facts of basavua (smt.) and others (supra) are concerned the hon'ble supreme court did approve the view that 65% of deduction was justifiable in the light of the facts of that case. shri bharne has also placed reliance on the case of koran singh and ors. v. union of india : air 1997 sc3889 wherein the hon'ble supreme court has again reiterated the position that the judgments of courts in land acquisition cases or awards given by the land acquisition officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances and one of the circumstance being that such an award or judgment of the court of law must be a previous judgment.6. on the other hand, learned advocate shri mulgaonkar has placed reliance on the case of tejhmal bhojwani (dead) through l.rs. and ors. v. state of u.p. : air 2003 sc3791 in support of his submission that deduction for development charges ought to be adequately provided for, but they have got to vary from place area to area and the amount of developments cannot be any fixed amount. shri mulgaonkar has also placed reliance on the case of administrator general of west bengal v. collector, varanasi : [1988]2scr1025 wherein the hon'ble supreme court has observed that to some extent surmises and conjectures are inevitable in making the valuation.7. admittedly the respondent firm had purchased the acquired property namely plot no. 13 admeasuring 1250 sq. m. by sale deed dated 28.10.65 at rs. 22.40 per sq. m. there cannot be quarrel with the proposition that developmental charges to be deducted will vary from locality to locality, and from area to area.8. the learned trial court has not deducted any amount towards developmental cost of the applicant's property whatsoever. however, the evidence shows that the respondent's property was near developed plot, the respondent firm having purchased the same with the approval of the then town planning committee and it appears that only conversion was not obtained. from the evidence of p.w. 2 shri paras it can be gathered that the acquired plot was about a metre below the road level. it is true that p, w.2 paras has stated that it had an advantage of a basement in case construction was made, but it is to be noted that not everyone is interested in construction of basements when house is being constructed and it is also not anybody's case that with a depth of a meter a basement could be constructed. moreover, it can be seen that the respondent's plot was also abutting the national highway and therefore certain area of the same would have come under the road widening scheme of the government. these three minus factors which the learned trial court certainly ought to have taken into consideration before straightway using the price fetched for the plot of sale deed -exh. 12 for fixing the compensation payable to the respondent's plot. there is no dispute that the sale deed of exh. 12 could not be used as guide. admittedly the respondent's plot was situated on the left side of the national highway as one goes from panaji to mapusa while the plot -exh. 12 was situated on the right of the said highway and the distance between both being 700 metres. considering the minus points of the respondent's plot in relation to the plot of sale deed - exh. 12, in my opinion a deduction of at least 35% ought to have been made and having made the same, the price to be paid to the respondent's plot can be fixed at rs. 65/ - per sq. m.9. i am therefore not. inclined to accept the submission of learned advocate shri mulgaonkar that the deduction ought not to have been more than 10%. likewise i am not: inclined to accept the submission of shri bharne that the deduction ought to have been of 65%.10. the second submission is regarding the increase granted by the trial court at the rate of rs. 9.85 per sq.m. per month. the reasoning given by the trial court is that the plot of land - exh. 12 was sold at rs. 100/ - per sq. m. on 12,10.81 while the plot of land of sale deed - exh. 13 was sold for rs. 178/- per sq. m. on 7.6.82. the learned trial court has observed that the plot of sale deed dated 7.6.82 - exh. 13 was located in the interior at about 750 metres away from the respondent's acquired plot. the learned trial court has jumped to the conclusion that the sale deed dated 7.6.1982 shows that there has been a price increase by rs. 9.85 per sq. m. per month.11. in my opinion the approach of the trial court is wholly incorrect. it is said that one swallow does not make a summer. based only on only sale deed it was not possible to jump to the conclusion that there was increase in market price of land at the rate of rs. 9.85 per sq. m. per month. admittedly neither the buyer nor the seller of the sale deed - exh. 13 was examined and who was examined was an attesting witness who happened to be the nephew of the buyer of the said plot - exh. 13. it appears that the plot of sale deed - exh. 13 had a river view and possibly on that count the buyers had paid a price which was slightly more than the price paid for the sale deed - exh. 12. there could be other reasons as well, but from the very sale deed at exh. 13 one could not jump to the conclusion that there was price increase to the extent of rs. 9.85 per sq. m. per month in the locality. no doubt the courts do take a note that there is a general trend in rise of prices but in the case at hand the sale deed - exh. 12 was executed just less than three months prior to the date of notification under section 4 of the act and that being so, it was not a case where the respondent ought to have been awarded any price increase.12. in view of the above, the appeal partly succeeds. the compensation payable to the respondent is fixed at rs. 65/- per sq. m. needless to observe that the respondent will be entitled to all consequential statutory benefits.