Dr. Mohamed Salim Samsuddin And Others v. The Special Land Acquisition Officer (Ii) Nasik .

Tulzapurkar, A.C.J:— These appeals arise out of the land acquisition proceedings which were initiated at the instance of the Executive Engineer. Irrigation Division, Nasik, for acquiring certain lands comprised in different survey numbers situate at Malegaon, District Nasik, for public purpose, namely, construction of Distributory No. 12 of Mosum Rice Canal. Various portions of different survey numbers were acquired for the above purpose under two different notifications that were issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) both having been published on the same date namely 4th May, 1961. An area of 1 acre and 5 gunthas out of survey No. 148/1 plus 2 situate at Malegaon belonging to Dr. Mohmed Salim Samsuddin and his three brothers was sought to be acquired under notification bearing No. L.A.Q.C 4368 dated 13th of April, 1961 published in the Government Gazette on 4th of May, 1961. Similarly under another notification bearing No. L.A.Q.C 4369 also dated 13th of April, 1961 published in the Government Gazette on 4th of May, 1961 1 acre out of survey No. 164 belonging to Bhikaji Ananda Pawar was sought to be acquired for the above purpose. Under the said two notifications there were other parcels of land forming part of different survey numbers which were also sought to be acquired for the said purpose but we are not concerned with those other parcels of land in these appeals. These two notifications were followed by two notifications under Section 6 of the Act; in respect of the lands covered by the Section 4 notification bearing No. ‘L.A.Q.C 4368 the Section 6 notification was published on 1.2th of October, 1061 while in respect of the lands covered by the Section 4 notification No. L.A.Q 4369 the Section 6 notification was published on 17th of August, 1961. After service of notice under Section 9 of the Act owners of survey No. 148/1 plus 2, namely, Dr. Mohamad Salim Samsuddin and his three brothers, filed their claim for compensatign. The Special Land Acquisition Officer, Nasik, by his award dated 8th of June, 1962 awarded total compensation to the tune of Rs. 20,022.50 which was comprised of (a) Rs. 11,250 for the value of the land at the rate of Rs. 10,000 per acre, (b) Rs. 4011 for the price of the well situated in the land, (c) Rs. 1,747.60 being the 15% solatium on the aforesaid two amounts, (d) Rs. 6,125 being damages for severance and injurious affection and (e) Rs. 500 by way of removal charges in respect of the sheds situated in the land. Being dissatisfied with this award the claimants (Dr. Mohamad Salim Samsuddin and his three brothers, who are the appellants before us) asked for a reference under Section 18 of the Act which was numbered as Land Acquisition Reference No. 47 of 1962 in the ‘Court of the Civil Judge, Senior Division, Nasik.

2. Similarly after service of notice under Section 9 of the Act, Bhikaji Ananda Pawar the owner of survey No. 164 filed his claim for compensation before the Special Land Acquisition Officer. By a separate award dated 8th of June, 1962 the Special Land Acquisition ‘Officer awarded a total amount of Rs. 11,700 by way of compensation to the claimant which was comprised of (a) (Rs. 10,000 for the value of the land at the rate of Rupees 10,000 per acre, (b) Rs. 1,500 for solatium at the rate of 15%, (c) Rs. 25 on account of severance and (d) Rs. 175 on account of injurious affection. Being dissatisfied with the award the claimant Bhikaji Ananda Pawar asked for a reference under Section 18 of the Act and the same was numbered as Land Acquisition Reference No. 39 of 1962 in the Court of the Civil Judge, Senior Division, Nasik.

3. It may be stated that along with these two land references there were quite a few other land references bearing Nos. 38 of 1962, 40 of 1962 and 58 of 1962. All these references including the above two references of the appellants before us were tried as companion land references by the learned Judge and evidence in respect of all references was led by the parties and came to be recorded in land reference No. 38 of 1962 because the sale instances sought to be relied upon on behalf of the claimants in all the references as well as the sale instances sought to be relied upon on behalf of the State Government were the same. The claimants (Dr. Mohamad Salim Samsiuddin and his three brothers) in land acquisition reference No. 47 of 1962 challenged the award by contending that the amount of compensation awarded was grossly inadequate. They claimed that lands similar to their land which was acquired out of survey No. 148/1 plus 2 in the same vicinity had been sold at the rate of Rs. 65,000 per acre during the relevant period and, therefore, they claimed land value at the rate of Rs. 65,000 per acre for the portion of 1 acre and 5 gunthas of their land acquired out of survey No. 148/1 plus 2. With regard to the well for which the Special Land Acquisition Officer had awarded Rs. 400, they contended that a sum of Rs. 5,000 was the reasonable compensation that ought to have been awarded having regard to the fact that the well was a built one and could be utilised for both purposes namely irrigation as well as drinking purposes. As regards damages for severance and injurious affection, they contended that after acquiring 1 acre and 5 gunthas out of survey No. 148/1 plus 2 the remaining piece of land admeasuring 37½ gunthas that had been left with them had a very small width and an irregular size and as such was rendered useless and valueless for any purpose and therefor they claimed compensation for this re maining portion of the land also at the rate of Rs. 65,000 per acre. They further claimed solatium on the enhanced compensation which they claimed in the reference and also 4% interest on the enhanced claim. In support of their claim the claimants principally relied upon three sale instances which were produced at Ex. 51, Ex. 52 and Ex. 53. On the other hand, on behalf of the State Government a sale transaction in respect of a certain portion of land out of survey No. 149/2B of Malegaon, which had been effected on 13th August, 1960 a copy whereof was produced at Ex. 66, was relied upon to show that the compensation awarded by the Special Land Acquisition Officer for the land in question at the rate of Rupees 10,000 per acre was reasonable. As regards the well, it was contended on behalf of the State that there was no occasion to interfere with the compensation of Rupees 400 that had been granted by the Special Land Acquisition Officer to the claimants. As regards the compensation in respect of severance and injurious affection, a twofold plea was urged on behalf of the State It was urged that since the claimants had not claimed any specific amount or amounts on the ground of severance or injurious affection in their written statement filed in response to notice under Section 9 of the Act, any claim for enhanced compensation over and above the one granted by the Special Land Acquisition Officer was barred under Section 25(2) of the Act. Secondly, it was urged that in any case the claim for such severance or injurious affection as had been awarded by the Special Land Acquisition Officer was proper and ought not to be interfered with. The learned Judge before whom oral as well as documentary evidence was led took the view that the sale instances that had been produced on behalf of the claimants would not afford a proper criterion for assessing the value of the land under consideration but that the sale transaction relied upon by the State Government which was evidenced by the sale deed a copy whereof was produced at Ex. 66 afforded a good basis for determining the market value so far as the land out of survey No. 148/1 plus 2 was concerned. The price rate under this transaction worked out to Rs. 9852 per acre, that is to say roughly about Rs. 10,000 per acre, but after making some allowance for the fact that the land under consideration had been got converted to non-agricultural land at the relevant time and a lay-out had been got sanctioned in respect of portions of the land under that survey number he felt that the proper compensation to be awarded for the land acquired out of that survey number would be at the rate of Rs. 15,000 per acre. For the value of the land therefore an enhanced compensation was granted by him at the rate of Rs. 5,000 per acre more than what was awarded by the Special Land Acquisition Officer. As regards the well, he confirmed the award of the Special Land Acquisition Officer of Rs. 400 as being proper compensation for the well. As regards the claim for severance or injurious affection was concerned, relying upon a decision of the said Court in the case of Secretary of State v. F.E Dinshaw, AIR 1933 Sind 21 he took the view that it was not necessary for the claimant to have claimed any specific amount on the ground of severance or injurious affection and it was sufficient that damages or compensation under those heads had been claimed in the written statement by the claimant and that therefore there was no bar, under Section 25(12) of the Act and since he enhanced the valuation of the land in question at the rate of Rs. 15,000 pe racre by adopting the same method which had been adopted by the Special Land Acquisition Officer, he granted an enhanced amount for severance or injurious affection. In other words, as against Rs. 6,125 which had been awarded by the Special Land Acquisition Officer, he awarded Rs. 10,500 on this account to the claimants. By adding 15% solatium on the enhanced value of the land acquired in question and the value of the well, the learned Judge passed an order in the claimants' favour that they would be entitled to claim Rs. 30,366.25 as total compensation receivable by them in respect of the said acquisition. Feeling aggrieved by this judgment and order of the learned Judge the claimants have preferred First Appeal No. 235 of 1964 to this Court, in which they have reiterated their claim for enhanced compensation for the value of the land at the rate of Rs. 65,000 per acre. Similarly the claimants have reiterated their claim in the sum of Rupees 5,000 for the price of the well as well as compensation for the 37½ gunthas of land which had been left out at the same note of Rs. 65,000 per acre. However, while paying court-fees they have restricted their total claim to Rs. 6,40,0876. The State of Maharashtra has also preferred and appeal being First Appeal No. 356 of 1964 and that is directed against the enhanced compensation allowed by the learned Judge on account of severance and injurious affection which has been raised by him from Rs. 6,126 to Rs. 10,500 and such enhancement is objected to on the self-same grounds on which the claim was initially resisted before the learned Judge.

4. The claimant in Land Acquisition Reference No. 39 of 1962 also challenged the award of the Special Land Acquisition Officer on the ground that the valuation of his land that had been acquired ought to have been fixed at the rate of Rs. 47,000 per acre and he also claimed consequent higher solatium of 15% on such enhanced compensation. The learned Judge again rejecting the sale instances which were proved and relied upon by the claimant and accepting the sale instance that was proved and relied upon by the State Government came to the conclusion that in this case also the proper compensation that ought to have been awarded in respect of the land in question was at the rate of Rs. 15,000 per acre. He also granted compensation of Rs. 300 on account of injurious affection to the claimant, and also 16% solatium which on these two amounts came to Rs. 2,295. He accordingly passed an order in claimant's favour to the tune of Rs. 17,595. Being dissatisfied with this order the claimant has preferred an appeal being First Appeal No. 279 of 1964 to this Court. Though in the appeal a contention has been urged that compensation at the rate of Rs. 47,000 per acre ought to have been granted by the learned Judge in respect of 1 acre of land that was acquired from out of survey No. 164, for purposes of court-fees the appellant has restricted his claim to Rs. 14,000.

5. Since the evidence in these two land references was led by the parties and recorded in land reference No. 38 of 1962 and since the evidence on which the claimants in these two land references as well as the State Government have relied happens to be the same, we propose to dispose of all these three appeals by this common judgment.

6. Before we go to the evidence on which reliance was placed by Mr. Paranjpe appearing for the appellants in First Appeal No. 235 of 1964 and by Mr. Limaye appearing for the appellant in First Appeal No. 279 of 1964, it would be desirable to set out certain undisputed facts. The lands in both these land references were notified for acquisition under a notification issued under Section 4 of the Act on 4th of May, 1961 and it would be that date by reference to which the market value of the lands in question will have to be ascertained. So far as the claimants in First Appeal No. 235 of 1964 are concerned only a portion admeasuring 1 acre and 6 gunthas out of survey No. 148/1 plus 2 situate at Malegaon has been acquired for purpose of the canal and a portion admeasuring 37½ gunthas has been left out. Similarly so far as the appellant in First Appeal No. 279 of 1964 is concerned, a portion admeasuring 1 acre out of survey No. 164 situate at Malegaon has been acquired for the selfsame public purpose and an area of about 1 guntha has been left out with the appellant. It is not disputed that survey Nos. 148/1 plus 2 and 164 are situated within the Malegaon Municipal Borough limits and the lands acquired form part of survey numbers for which lay out plans had been sanctioned before the notification under Section 4 had been issued. In other words, these two survey numbers at the relevant date were intended to be used for non-agricultural purposes and had building and development potentialities. It is also not disputed that the lands acquired are situated in a locality which is not far distant from Malegaon Gaothan which has been a growing township having weaving and power loom factories. In fact in one of the lands survey No. 164 building activities had already commenced and in the surrounding area educational institutions were being founded. It is therefore clear that the lands acquired both from out of survey No. 148/1 plus 2 and survey No. 164 can be said to be valuable lands in respect whereof the claimants would be entitled to claim compensation at the fair market value that will have to be arrived at on the basis that these lands have good and immediate building potentiality. It may be stated that in respect of survey No. 148/1 plus 2 an application for sanctioning the lay-out dividing the said survey number into several plots intended for building purposes had been submitted on 25th August, 1960 and approval of the consulting surveyor to the proposed lay-out had been accorded on 16th December, 1960. The order sanctioning the lay-out was produced at Ex. 14/11C while the blue-print plan which was sanctioned was produced at Ex. 73. Similarly in respect of survey No. 164 an application for getting the proposed lay-out sanctioned was made on 15th June, 1960 and the layout sanctioned on 17th December, 1960. The order granting the sanction was produced at Ex. 57.

7. Apart from the prospects of good and immediate building activity the value would also depend upon the situation of the lands as well as their surroundings. It will also depend upon bow far near or how far distant are they situated from the Malegaon Gaothan and whether any building activity has actually been undertaken in the lands in the vicinity thereof. It is in the light of these several factors that the proper valuation of the lands in question will have to be fixed.

8. We have already indicated above that on behalf of the claimants three sale instances were relied upon and on behalf of the State of Maharashtra one sale instance was relied upon and the learned Judge has discarded the three sale instances on which reliance was placed by the claimants and has accepted the sale instance which was proved on behalf of the State of Maharashtra, as affording proper guide for fixation of the value of the lands in question. Mr. Paranjape appearing for the claimants in First Appeal No. 235 of 1964 and Mr. Limaye appearing for the appellant in First Appeal No. 279 of 19164 have contended before us that the learned Judge was in error in discarding the three sale instances which had been relied upon by the claimants. It was pointed out by them that the learned Judge had given two reasons for discarding these three sale instances, namely, that the areas covered by these three sale deeds were very small as compared to the area that had been acquired under both the references and that the plots sold under these three sale deeds were developed plots whereas the lands sought to be acquired were undeveloped lands and it was urged that though the first reason could be regarded as a good reason for discarding the sale instances the second was the more important reason which had weighed with the learned Judge and that reason was not factually correct. It was urged that if the three sale deeds were carefully scrutinised and the oral evidence pertaining to these three sale deeds was also carefully scrutinised it would appear clear that even the small plots which were covered by these three sale deeds will have to be regarded as undeveloped plots and therefore the distinction drawn by the learned Judge between the plots covered by these sale deeds and the two parcels of land which were covered by the two references could not be regarded as a valid distinction. It was, therefore, contended that the learned Judge was in error in discarding the three sale instances and in relying upon the sale instance that had been produced on behalf of the State of Maharashtra. In particular strong reliance was placed upon these sale deeds inasmuch as the rate of the price that was paid by the vendees under these documents to their respective vendors worked out to Rs. 43,560 per acre under the first sale deed, Rs. 55,660 peracre under the second sale deed and Rs. 45,738 per acre under the third sale deed and it was contended that even, if some allowance was required to be made, because the plots covered by these sale deeds were very much smaller in size, as compared to the area that had been acquired compensation at the rate at least of Rs. 25,000. per acre ought to have been awarded. It was also contended that the sale instance on which the State of Maharashtra had relied was in respect of a parcel of land which was essentially an agricultural land and in respect whereof no lay-out plan had been sanctioned on the relevant date or at any time prior to the relevant date. It was, therefore, wrong on the part of the learned Judge to have accepted that sale instance as affording a proper guide, in fixing the land value of the parcels of land in question and granting compensation at the rate of Rs. 15,000 per acre. We shall consider these submissions presently.

9. The sale deeds which were produced on behalf of the claimants were exhibited at Ex. 51, Ex. 52 and Ex. 53 on the re cord. Under Ex. 51 plot No. 59 out of survey No. 164 admeasuring a small area of 1800 sq. ft. was sold for a price of Rupees 1,800 and the price rate worked out at Rs. 43,560 per acre. The evidence in respect of this transaction was given by witness Dhondu Punju Mali the vendee. Having regard to the recitals which are to be found in the sale deed Ex. 51 and having regard to the oral evidence that has been given by Dhondu Funju Mali in regard to this document it seems to us that the sale transaction appears to be of a doubtful nature. In the sale deed Ex. 51 it has been recited that a consideration of Rs. 1,800 mentioned therein has been received by the vendor (who happens to be the claimant Bhikaji Ananda Pawar in land reference No. 39 of 1962) from the purchaser from time to time whereas in the oral evidence given by Dhondu Punju Mali he has initially stated that the amount of consideration had been paid by him before the Sub-Registrar of Assurances when the document was registered, and a little later he prevaricated and stated that the amount of consideration was paid by him not before the Sub-Registrar but before the writer of the sale deed — but presumably all at one time. There is therefore a clear discrepancy with regard to the payment of consideration under this document and the manner of payment thereof. In the document the consideration is stated to have been ceived by the vendor from tims time and the payment of the entire amount was received by the vendor upto the date of execution of the document whereas the purchaser has deposed that the entre amount was paid in a lump sum either before the Sub-Registrar or before the writer of the document at one and the same time. Ex 51 further recites that the vendor has sold to the purchaser “absolutely the two plots of the following description” and actually while describing the property sold only one plot of land admeasuring 1'800 sq. ft. has been described. Apart from this small discrepancy which appears in Ex. 51 pertaining to the question as to whether one plot or two plots were intended to be sold under this document, the recitals pertaining to the payment of consideration under the sale deed Ex. 51 are at complete varianco with the oral evidence given by the vendee in the Court, which aspect, in our opinion, renders the payment of consider ration itself doubtful. Bhikaji Ananda Pawar, who is the vendor under this document (who is the claimant in First Appeal No. 279 of 1964) does not say a word about any consideration having been received by him under this document or the manner of receipt of such consideration thereunder. Therefore it may not be possible to regard this sale instance as a genuine sale transaction on which any reliance can be placed. This sale transaction therefore will have to be discarded on this ground as also on the other grounds which wo shall presently indicate.

10. The second sale deed is produced at Ex. 52 dated 14th of October, 1960. Under this document plot No. 59 out of survey No. 145 admeasuring an area of 1750 sq. ft. has been sold for a price of Rs. 2,225 and oral evidence in regard to this document has been furnished by witness Abdul Khalil Moula bux the purchaser. The rate of price under this document works out at Rupees 55,660 per acre. The document Ex. 52 itself shows that survey No. 145 out of which this small area of 1750 sq. ft. has been sold is very advantageously situated, because it is situated at the corner of two roads, one being Mohamadalli Road running in north-west direction and the other a small road running east-west. It was not disputed before us that Mohamadalli Road happens to be one of the main roads in the locality. This advantageous position at which survey No. 145 is situated has been admitted by the purchaser witness Abdul Khalif Moulabux in his evidence. He has admitted that two roads adjoin two sides of this survey No. 145. He has further admitted that there are building constructions made in survey No. 145 since many years back and that there are shops on the northern side of this survey number beyond the road. Besides it is also clear that this survey Nil. 145 is about a furlong away from the Bombay-Agra road and also about furlongs away from Malegaon Gaothan.

11. The third sale deed produced at Ex. 53 is dated 26th October, 1959 and under this document two plots Nos. 11 and 10 admeasuring 30 ft. × 50 ft. and 30 ft. × 50 ft. out of survey No. 24/1 have been sold for a price of Rs. 4,500 and the oral evidence in respect of this document has been furnished by Nurulhoda Badulla the vendee. The price rate under this document works out at Rs. 45,738 per acre. So far as survey No. 24 out of winch these two plots have been sold, is concerned, the same happens to enjoy the best situation. It abuts on the Bombay-Agra road itself and has further two roads one on the eastern side and the other on the southern side, which is the Mohamedalli road. The document Ex. 53 itself recites that one of the plots sold thereunder has two roads on two sides and the other plot has three roads on its three sides. It is also recited that these plots after construction will have a frontage, the flow of sewage water shall be to the east, west and northern side and that the lay-out plan of the said plots had been sanctioned by the Collector of Nasik on 29th November, 1958. These aspects of the advantageous position have been clearly admitted by the vendee witness Nurulhoda Badulla in his evidence. This is what he has stated in cross-examination:—

“Agra Road adjoins the land of survery No. 22 from one side and another road adjoins another side. It is true that a third road adjoins the east. My plots are near one of the roads. There are residential cottages in the land from which I have purchased plots. There are houses to the north of Agra Road since many years back. There are houses built to the west of survey No. 24 since long.”

12. It is also in the evidence of Abdul Khalif Moulabux that one big weaving mill has been constructed in survey No. 24 since the last about 5-6 years.

13. It is undoubtedly true that the recitals in these three documents do show that only layouts had been sanctioned and according to the oral evidence in some cases plans also had been sanctioned but actually no roads had been laid out and in fact in some cases the burden was cast upon the vendee to bear the cost of roads, drainage etc. In Ex. 52 burden has been cast upon the vendee even to get his plot converted to non-agricultural purposes. In other words, there is no doubt that these small plots which are covered by these three sale deeds could not be regarded as developed plots as has been done by the learned Judge and to that extent the argument of Mr. Paranjape is well founded. However, in our view, there are other reasons and substantial reasons why these sale instances could not afford a guide for fixing the valuation of the lands acquired in question. In the first place, the areas sold under these three documents unquestionably happen to be very small areas admeasuring about 1800 sq. ft., 1750 sq. ft; and 1500 sq. ft. whereas the parcel of land acquired out of survey No. 148/1 plus 2 admeasures 1 acre and 5 gunthas and the parcel of land acquired out of survey No. 164 admeasures 1 acre and it is obvious that smaller plots always fetch higher price. Secondly, it cannot be disputed that survey numbers from out of which smaller plots have been sold under Ex. 52 and Ex. 553 enjoy an advantageous situation as compared to the situation in which the lands acquired are situated. Survey No. 145 as stated earlier happens to be a comer piece of land with two roads on two sides of it, one of which being one of the main roads in that locality, being Mohamedalli Road, whereas survey No. 148/1 plus 2 as well as survey No. 164 have only one road each — survey No. 148 having a road on the north side and so also survey No. 164 having a road on the north side. Survey No 24 as stated earlier happens to be surrounded by three roads on three sides and actually abuts on the National Highway, namely Bombay-Agra Road. Besides, survey No. 145 and survey No. 24 are positively nearer the Malegaon Gaothan than survey Nos. 148 and 164. It is therefore clear that the survey numbers from out of which plots under the two sale deeds Ex 52 and Ex. 53 are sold, are definitely situated at an advantageous position as compared to survey Nos. 148 and 164. In fact the sale deed produced at Ex. 51 has been regarded by us as not being a genuine transaction, payment of consideration thereunder being in doubt. If that sale transaction is therefore kept out of consideration, there is no doubt that the sale deeds produced at Ex. 52 and Ex. 53 are not in relation to lands which can be said to be comparable with the lands which are the subject-matter of acquisition. There is yet a third reason for which the sale instances relied upon by the claimants cannot afford a guide for fixing the valuation of the lands acquired. It cannot be disputed that when lay-out plans in respect of survey Nos. 145 and 24/1 were sanctioned considerable area must have been left out for purposes of roads and open sites while granting or approving of the lay-outs of plots in these two survey numbers, and no material was placed before the Court on behalf of the claimants to show how much land had been so left out for purposes of roads, open sites etc. It cannot be disputed that while arriving at the rate of price based on executed documents pertaining to plots in a land for which lay-out has been sanctioned this aspect namely, how much land has been left out for roads, open spaces etc. will have to be taken into account and as, stated earlier, on this aspect of the matter no evidence was led on behalf of the claimants before the Court. In our view, therefore, though one of the reasons given by the learned Judge for discarding these three sale instances may not be regarded as valid, there are other reasons available on record for which we feel that these sale instances on which reliance was placed by the claimants cannot afford a guide for fixing the value of the lands acquired under the two references, and in our view, the learned Judge was right in discarding these sale instances.

14. It was, however, urged by Mr. Paranjape that in view of the factors which we have mentioned above, namely, the smallness of the area sold under the three documents as compared to the area of the lands acquired, the advantageous situation enjoyed by the survey numbers covered by these sale deeds, etc. some allowance could be made for these factors and the price rate which could be deduced under these sale deeds could be applied to the lands, in question after making some allowance for these factors. In our view, it is not possible to accept this submission of “Mr. Paranjape for the simple reason that the nature of the plots sold, their proximity to Gaothan, their advantageous situation (some having two roads and some having three roads on their sides) are matters for which it may not be possible to make an allowance at any precise figure after making a precise calculation. In this context we might mention that survey No. 148/1 plus 2 and survey No. 164 are survey numbers more than four furlongs away from the Malegaon Gaothan and are also away from the National Highway namely, Bombay-Agra Road, whereas survey No. 24 abuts on Bombay-Agra road and survey No. 145 happens to be a corner survey number enjoying an advantageous position. Placed in that situation, it would be difficult to derive any guidance from the sale instances on which reliance has been placed by the claimants.

15. Turning to the sale instance on which the State of Maharashtra has relied, it appears to us that the land covered under this sale transaction is almost similarly situated as the lands that have been acquired and therefore that sale instance has been rightly held by the Jearned Judge as being one which could afford a proper guide for fixing the market value of the lands in question. That sale instance is evidenced, by Ex. 66 dated 13th August, 1960, Under this document an area of 2 acres and 21½ gunthas out of survey No. 149/2B has been sold to one Maulavi M. Usman for Rs. 25,000 and the price rate works out at Rs. 9852 per acre. Evidence pertaining to this transaction has been given by Maulavi M. Usman the vendee and though the land was purchased under this document as an agricultural piece of land witness Maulavi M. Usman has categorically averred in his cross-examination that he had purchased the land for using it for residential purposes as there was dearth of residential premises at Malegaon and that about 24 plots which had been marked out of this survey number had been sold. It does appear that some time later even the plan for lay-out in respect of this survey number was also sanctioned and 24 plots out of this survey number have been sold out. In the first place, this sale deed pertains to a sufficiently large (area?) admeasuring 2 acres and 21½ gunthas out of survey No. 149/2B — a plot which is easily comparable to the large area of 1 acre and 5 gun thas which has been acquired out of survey No. 148/1 plus 2 and an area of 1 acre which has been acquired out of survey No. 164. Secondly, survey No. 149 out of which an” area of 2 acres and 21½ gunthas has been sold under Ex. 66, adjoins both the survey numbers in question — survey No. 148 to its north and survey No. 164 to its south. In other words, the sale instance pertains to a land which could be regarded as adjacent to both the lands under acquisition. Thirdly, each one of these survey numbers, namely, survey Nos. 148, 149 and 164, enjoys the benefit of having one road each on its side — survey No. 148 having a road on its north whereas in between survey Nos. 149 and 164 there is a road leading to Malegaon. All the three survey numbers are almost equidistant from the Malegaon Gaothan and just as out of survey No. 148 about 94 plots have been sold out, out of survey No. 149 about 24 plots have been sold out. In other words, just as the two lands acquired possess building and development potentialities, so also does survey No. 140. In our view, therefore, the sale instance on which the State of Maharashtra has relied is one which pertains to land which is easily comparable to the lands that are under acquisition and, therefore, the learned Judge, in our view, was right in accepting this sale transaction as affording a guide in fixing the land value of the lands acquired. By relying upon this sale transaction that the Special Land Acquisition Officer awarded compensation to the claimants at the rate of Rs. 10,000 per acre. The learned Judge has taken the view that compensation at that rate would not be adequate and that a higher rate was awardable having regard to the distinguishing features which obtained in the case of the two lands acquired as compared to the sale instance in question. Both in regard to survey No. 148/1 plus 2 and survey No. 164 lay-out plans had already been sanctioned before the relevant date and as such, at the relevant time the lands covered by these two survey numbers had good and immediate building potentiality, whereas in respect of survey No. 149 it appears that the lay-out plan seems to have been sanctioned some time later and relatively speaking on the material date it cannot be said that the land covered by survey No. 149 had immediate building potentiality. Besides, the lands acquired were from survey numbers which had been got converted to non-agricultural lands. It was on this basis that the learned Judge has taken the view that compensation at a higher rate of Rs. 15,000 per acre should be awarded to the claimants in the two references. In our view, there is no reason to interfere with that reasoning which has been adopted by the learned Judge and we agree with him that proper and fair market value of the lands acquired in question under the two references would be Rs. 15,000 per acre and the learned Judge was right in granting compensation at that rate for the two parcels of land that had been acquired out of survey No. 148/1 plus 2 and survey No. 164 to the claimants respectively. No specific contention was urged to the price of the well that has been awarded by the Special Land Acquisition Officer and which award was confirmed by the learned Judge.

16. In this view of the matter, First Appeals Nos. 2135 of 1064 and 279 of 1964 will have to be dismissed and each one of the appeals is accordingly dismissed with costs.

17. Turning to the appeal filed by the State on the point of enhanced compensation that has been awarded by the learned Judge in regard to severance and injurious affection, we may state that the precise contention that was urged by Mr. Gambhirwala was to this effect: He pointed out that after notice under Section 9 was served upon the claimants in land reference No. 47 of 1962, the claimants filed a written statement in response to that notice, copy whereof has been produced at Ex. 33 on the record. It was pointed out by him that in this written statement produced at Ex. 33 no specific amount had been claimed by the claimants as and by way of damages on account of severance or injurious affection. All that the claimants stated was that a piece of land admeasuring about 1 acre or-so was being severed due to canal passing through the land and that the same will not be useful for non-agricultural as well as agricultural purposes and that they may be paid reasonable compensation and severance charges and injurious affection. It was contended that under Section 9(2) of the Act it was obligatory upon the claimants “to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests” and since no specific amounts were claimed as and by way of damages for either severance or injurious affection, the right to claim enhanced amount than the one awarded by the Special Land Acquisition Officer was barred under Section 25(2) of the Act. This contention was raised before the learned Judge and the learned Judge has dealt with it as follows:—

“However, as has been laid down in the case of AIR 1933 Sind 21 it would not be necessary for the claimant to specify definite amount of compensation in respect of each sub-head in respect of which a claim for enhanced compensation is made. In view of this ruling, it cannot be held that the claim of the claimants for enhancement of compensation is barred under Section 2(5 i(12) of the Land Acquisition Act.”

18. In other words, following the decision of the Sind “Court referred to above the learned Judge took the view that it was not necessary for the claimants to specify a definite amount of compensation under each specific sub-head like “severance” or “injurious affection” and that absence of making such specific claim did not have the effect of barring a right to enhanced compensation under the said heads under Section 25(2) of the Act. Mr. Gambhirwala for the State has invited our attention to a decision of this (Court in the case of Special Land Acquisition Officer v. Kalyanji, (1955) 57 Bom LR 934 and he contended that a contrary view has been taken by this Court in that decision and in terms the view taken by the Sind Court in F.E Dinshaw's case (AIR 1933 Sind 21) has been expressly dissented from. He, therefore, urged that in view of the decision of Justice Tendolkar in (1955) 57 Bom LR 934 it should be held that the claimants could not claim any higher compensation under the heads ‘severance’ or ‘injurious affection’ than the one that has been awarded by the Special Land Acquisition Officer and that such right to enhanced compensation was barred under Section 25(2) of the Act. There is no doubt that the view taken by Justice Tendolkar in (1955) 57 Bom LR 934 is in terms contrary to the view taken by the Sind Court in F.E Dinshaw's case (AIR 1933 Sind 21) and there is no doubt that the view expressed in the Bombay decision should prevail with us. However, having regard to the manner in which compensation had been claimed by the claimants under the heads “severance” or “injurious affection” in their written statement Ex. 33 and having further regard to the fact that the question of compensation under these sub-heads had been considered by the Special Land Acquisition Officer while making his award, we are clearly of the view that the Bombay decision is clearly distinguishable on the facts of the case. In, (1955) 57 Bom LR 934 while submitting the claim for compensation before the Special Land Acquisition Officer the claimants after citing various instances of sale of land had merely asked for price for the land at the flat rate of Rs. 35 per sq. yd. and there was not even the remotest suggestion either in the claim put forward or even in the report of the architects of the claimants that had been forwarded, that the claimants had suffered any damages on account of severance or injurious affection. Further, since no such claim under such specific head of “severance or injurious affection” was put forward, there was no occasion for the Special Land Acquisition Officer to consider that item of compensation to the claimants and it was for the first time when the land reference was being heard before the Court that the claimants sought to lead evidence seeking to establish damages said to have been suffered by them on account of severance or injurious affection and it was at that stage that an objection was raised on behalf of the Special Land Acquisition Officer, Bombay City, that no such evidence should be allowed to be led on behalf of the claimants and that objection was upheld by Justice Tendolkar precisely on the ground that if the claimant had failed to make such a claim for damages under any of the heads “secondly” to “sixthly” enumerated in Section 23 of the Act, it was not open to the Collector of his own motion to consider whether the claimants had sustained damage under any of the sub-heads “secondly” to “sixthly” described in Section 23 and since even the Collector had not done any adjudication as regards such damages sustained by the claimant no question could arise of the claimants coming to court on a reference and claiming that such damage had been sustained by them. After examining the scheme of the relevant sections of the Land Acquisition Act Justice Tendolkar took the view that if a claimant failed to make such a claim before the Collector it would not be open to the Collector to consider of his own motion any such claim much less would it be open to the claimant to do so before the Court after a reference had been made to the Court and in coming to this conclusion the learned Judge has relied upon the language of Section 9(2) which categorically requires all persons interested to appear before the Collector and “to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such Interests”. In the present case, it cannot be suggested that the claimants had either refused to make such claim or had omitted without sufficient reason to make such claim within the meaning of Section 25(2) of the Act so as to raise the bar contemplated by that provision. In Ex. 33 which was the written statement filed by the claimants in pursuance of the notice served upon them under Section 9 this is what the claimants had stated:—

“Secondly a piece of land about 1 acre or so is being severed due to the canal passing through the land which will not be useful for non-agricultural as well as agricultural use. We may be paid reasonable compensation and severance charges and injurious affection.”

19. There is therefore no doubt that while preferring the claim before the Special Land Acquisition Officer the claimants had claimed compensation by way of damages under the sub-heads “severance” and “injurious affection” and all that they had stated was that reasonable compensation by way of damages under these two heads should be awarded to them. It is true that the quantum of damages under either of the two heads had not been specifically mentioned, but the two sub-heads under which damages could be claimed had been clearly mentioned. What is more, even the Special Land Acquisition Officer had considered this claim that was put forward under the heads of severance and injurious affection. In paragraph 8 of his award the Special Land Acquisition Officer has touched this question of severance relating to 371/2 gunthas which had been left out while acquiring 1 acre and 5 gunthas out of survey No. 148/1 plus 2 and he had taken the view that out of the 27½ gunthas, 2½ gunthas in the north-west corner of the survey number could form an independent building plot fronting on the road in the north and it was only in respect of the remaining area of 35 gunthas which had been rendered useless for carrying out any building activity thereon that the claimants would be entitled to claim damages on account of such severance. He has further proceeded to award that compensation by adopting the method of taking the difference between the value of those 35 gunthas as non-agricultural land and the value of those 35 gunthas as agricultural land and on that basis he awarded Rs. ??? on account of severance and injurious affection. In other words, except for non-mentioning of the specific amount or quantum, reasonable compensaton under the heads of severance and injurious affection had been claimed and the same was dealt with by the Special Land Acquisition Officer. It was urged by Mr. Paranjape before us that in these circumstances it would be open to the claimants to contend on a reference being made to the Court that the quantum awarded was not reasonable and the claimant was entitled to a reasonable quantum which could be higher than the one awarded by the Special Land Acquisition Officer. There is some force in this contention of Mr. Paranjape. In any case, two things are very clear that unlike the Bombay decision the sub-head of severance and injurious affection had been specifically mentioned in the claim that was lodged pursuant to the notice under Section 9(2) and further unlike the Bombay decision the Special Land Acquisition Officer had dealt with this aspect of the matter in his award and since it is clear that it is open to the claimants on a reference made to the Court under Section 18 to file his objections to the award made by the Land Acquisition Officer, it will be open to the claimant to object to the quantum that has been awarded under the head severance or injurious affection on the ground that the amount awarded was not a reasonable amount. In this view of the matter it seems to us clear that the instant case is clearly distinguishable on facts from the case in (1955) 57 Bom LR 934. In any event, we are of the view that the power conferred upon the court under Section 25(3) should be exercised in favour of the claimants on whose behalf an oral application was made by Mr. Paranjape that the lapse on the part of the claimants in not indicating the specific amount of compensation claimed under the heads (of) severance or injurious affection should be condoned. Mr. Paranjape stated before us that since the sub-heads of “severance” and “injurious affection” had been mentioned in the statement of claim filed before the Special Land Acquisition Officer in response to the notice under Section 9(2) it cannot be said that the claimants had either deliberately refused to make a claim or omitted to make a claim under these sub-heads. He also pointed out that in the circumstances of the case it was not possible for the claimants to indicate the specific amount and therefore reasonable amount on account of severance and injurious affection had been claimed. He pointed out that the claimants could not properly or precisely assess the damages that could be claimed under these two heads and therefore the lapse on their part should be condoned. In the circumstances, we feel that the omission was not without sufficient reason and therefore we condone the lapse and allow the claimants to make such a claim for enhanced compensation under the head severance charges and injurious affection.

20. On the question of quantum of damages, Mr. Paranjape pointed out before us that the learned Judge had enhanced the compensation under these heads only to Rs. 10,500 but he urged that even such compensation for severance and injurious affection in respect of 35 gunthas which had been left out the same having been rendered useless ought to have been granted at the rate of Rs. 65,000 per acre.

21. Since, however, we have taken the view that even for the lands acquired the fair compensation would be at the rate of Rs. 15,000 per acre, we do not see any reason for interfering with the quantum of compensation awarded by the learned Judge under the sub-heads severance and injurious affection We would therefore confirm the learned Judge's order that a sum of Rs. 10,500 should be awarded to the claimants in land reference No. 47 of 1962 for 35 gunthas which had been, left out under the head severance and injurious affection.

22. In the result, the State appeal being First Appeal No. 355 of 1964 is also dismissed with costs.

23. Appeals dismissed.