Bilkis & Ors vs State Of Maharashtra & Ors

Thana Tq. Soyegaon. His entire land was acquired by

the Land Acquisition Officer (hereinafter `LAO') for

the development of tourism plan of Ajintha villages

Fardapur and Thana, taluka Soyegaon, district

Aurangabad. A notification was published under

1 Section 4(1) of the Land Acquisition Act, 1894

(hereinafter `the Act') on 16.4.1990. It was followed

by the notification under Section 6 published on

12.9.1991.

3. The LAO passed an award dated 22.7.1993 wherein

he classified the lands into two groups, and the

group within which the land of the deceased was

classified was given compensation at the rate of

Rs.300/- per Aar and Rs.3,79,498/- towards structures

and Rs.6,300/- towards fruit-bearing trees.

4. Aggrieved, the claimants filed references before

the Reference Court. The Reference Court, vide order

dated 27.6.2001, partly allowed the reference

petitions. It found that the land under acquisition

was converted into non-agricultural land in 1993 and

the LAO was wrong to ignore the said fact while

granting compensation and taking the acquired land to

be agricultural land. Thus, it enhanced compensation

to an amount of Rs.650/- per Aar as cost of land. The

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Reference Court also gave specific findings to the

following effect:

1. The claimant was unable to prove that

he had constructed a hotel of 2400 sq.

ft. on the acquired land. Thus, it

concluded that the evidence of the

claimant was insufficient to prove that

the value of the structure was more

than the compensation awarded by the

LAO.

2. The evidence of the claimant was also

insufficient to prove that bore or well

existed on the land. Thus, the claimant

was held not entitled to enhanced

compensation towards well or bore.

3. The LAO had granted compensation for

sitaphal, bor, coconut, mango and jamun

trees. The claimant was unable to prove

the existence of any more trees or plants

on his lands and therefore he was held not

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entitled to enhanced compensation towards

trees and flower plants.

4. The claimant claimed to be earning annual

income of Rs.24,000/- from his hotel

business. On perusal of evidence, the

Court concluded that there was definitely

no hotel in existence and an inference

could only be drawn that he was running a

small hotel like a tea stall, and that

such business had no future prospects.

Thus, he was not entitled to any

compensation for loss of business.

5. Being still aggrieved, the claimants filed

appeals before the High Court for further enhancement

of compensation. The State also appealed before the

High Court for reduction of compensation awarded by

the Reference Court.

6. The High Court, vide its judgment dated 3.4.2003

dismissed the appeal of the claimants and partly

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allowed the appeal of the State. It upheld all the

findings of the Reference Court, except the

computation with respect to market value of the land,

which it reduced to Rs.500/- per Aar. The reasoning

High Court gave for the same was that while non-

agricultural permission had been given for the

acquired land, it could not be the sole basis to

treat the entire land as being non-agricultural or

being used for commercial purposes. The non-

agricultural permission had been based on certain

conditions, one of which was that the grantee would

commence non-agricultural use of land within one year

from the date of such order unless the same was

extended, failing which the permission would be

cancelled. According to the High Court, the

construction of the hotel for which compensation had

been granted was located on an area of 2400 sq. ft.

and this by itself would not make the entire

remaining land as non agricultural or used for

commercial purposes. The High Court relied on Smt.

Kamlabai Jageshwar Joshi and others v. State of

Maharashtra and others (AIR 1996 SC 981) and State of

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Maharashtra and others v. Digamber Bhimashankar

Tandale and others [1996 (2) SCC 583].

7. Further, the High Court held that the permission

granted by the village Panchayat revealed that there

was a structure standing on the acquired land, and

even if benefit of doubt was given in favour of the

claimants, the structure did not exceed 2400 sq. ft.

The High Court also recorded a finding that village

Thana was located on the Aurangabad-Jalgaon highway

at a distance of 95 kms. from Aurangabad and about 50

kms. from Jalgaon. The Ajantha caves were located 6

to 8 kms. from the said village. The acquired land

was adjacent to the State highway and in proximity of

junction point on the approach road leading to the

caves. On the land in front of it, i.e. Gut No. 28,

there was another hotel by the name of Hotel Gazal.

As per evidence, travellers on the said highway would

stop and utilize the services of the restaurants

either in Gut No. 28 or 29. However, there was

nothing further to show that the land appurtenant to

the lodging and boarding house was being used for any

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commercial purpose and it was by choice of the owners

that it was not being used for agricultural purposes.

Thus, the High Court took the view that the Reference

Court erred in treating the entire land as

commercial/non-agricultural. Accordingly, it held

that compensation of Rs.420/- per are for the

agricultural land would be just and proper, however

as the land was adjacent to the highway, market value

of the land was fixed at Rs.500/- per are.

8. Aggrieved, the claimants approached this Court by

way of appeal for further enhancement of

compensation.

9. We have perused the material on record and heard

the parties. We are of the opinion that the judgment

of the Reference Court deserves to be restored and

that of the High Court set aside.

10. The High Court has reduced compensation on the

ground that the land, though was given non-

agricultural permission, it could not be treated as a

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basis for treating the entire land as non-

agricultural. We disagree with this view. The High

Court has relied on the case of Kamlabai Jageshwar

Joshi (supra) and Digamber Bhimashankar Tandale

(supra).

11. In the case of Kamlabai Jageshwar Joshi (supra),

it was found that at the time of acquisition, as per

the report of the Land Acquisition Officer in the

award, there was no development, though the lands

were situated within the municipal limits. Sanction

had been obtained for converting the lands into non-

agricultural lands. In view of these circumstances, a

bench of this court concluded that permission for

conversion was obtained by the appellant with a view

to inflate the market value, after becoming aware of

the proposal for acquisition. This Court also found

that except obtaining sanction for conversion no

further action to develop the lands was taken.

Accordingly, this Court proceeded to award

compensation taking the land to be agricultural land.

8 12. In the case of Digamber Bhimashankar Tandale

(supra), on the date of the notification the lands

were agricultural lands though situated within the

municipal limits. It is also in evidence that the

lands were converted for non-agricultural purpose.

But as on the date of notification, there was no

development in that area. The oral evidence was

adduced in which it was shown that upto a distance of

3/4th km. of the lands there was development. Some

illegal constructions were made on the lands. Under

those circumstances, the court concluded that as on

the date of the notification there was no potential

value to the lands though converted into non-

agricultural lands.

13. We believe that the present case can be

distinguished from the abovementioned judgments. From

evidence on record, though the claimant has been

unable to prove the existence of a hotel, it has been

found that some structures for the same existed.

Therefore, unlike the abovementioned judgments, there

is some development on the acquired land. Further,

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admittedly, travellers would stop by and utilize the

hotel services provided by the claimants. The land is

also adjacent to the Aurangabad-Jalgaon highway and

is only 6 to 8 kms. away from the Ajantha caves, an

internationally famous tourist destination. Thus,

there is great future potential for development with

respect to the acquired land. The potential to which

the land is reasonably capable of being used in

future by the owner should be taken into account in

assessing compensation.

14. In light of these circumstances, the compensation

awarded by the Reference Court appears us to be just

and reasonable, having been determined after

correctly appreciating all the material evidence on

record. There was no need for the High Court to

reduce the same. Accordingly, we set aside the

judgment of the High Court and restore the award of

the Reference Court.

15. The appeals are partly allowed and the award of

the Reference Court is restored.

1 16. No order as to costs.

.......................J.

(G.S. SINGHVI)

.......................J.

New Delhi (ASOK KUMAR GANGULY)

April 05, 2011

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