# Kazi Akiloddin v. State of Maharashtra & Ors

- **Citation:** 2024 INSC 505
- **Court:** Supreme Court of India
- **Decided:** 2024-07-10
- **Case number:** Civil Appeal No. 6776-6777 of 2013
- **Bench:** Surya Kant, K.V. Viswanathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kazi-akiloddin-v-state-of-maharashtra-ors-38127
- **Pages:** 47

## Headnote

What should be the market value of the land of the appellant as on
03.06.1999; does the site of the appellant fall within 'Blue Zone' as
contended by the acquiring body-Vidarbha Irrigation Development
Corporation (VIDC); if it falls within the 'Blue Zone', what should be
the market value for the land; if the land or any part thereof is not
to be determined as a 'Blue Zone', what was the 'No Construction
Zone' as per the extant laws; and what should be the market value
payable for that portion; what should be the market value payable
for any portion, falling outside the 'No Construction Zone'.
Headnotes†
Maharashtra Regional and Town Planning Act, 1966 - ss.14(j),
21, 22(j) - Land Acquisition Act, 1894 - s.4 - Land of the
appellant, if fell within the blue zone - Market value thereof
as on 03.06.1999, the date of the Section 4 notification:
Held: High Court not justified in declaring the entire land of the
appellant as falling within the blue zone - If an acquiring body
relies on a statutory injunction, to establish that the land has
no potential, then the burden is on the said acquiring body to
demonstrate without any ambiguity that such a statutory interdict
is in place - VIDC did not discharge the burden in demonstrating
that statutorily there was a valid demarcation of a "Blue Zone"
on the date of the s.4 notification, under the Act - What was
established was only the existence of the bye-law i.e. "Standardised
Building Byelaws and Development Control Rules for "B" and "C"
Class Municipal Councils of Maharashtra" - As on 03.06.1999,
i.e. the date of the s.4 notification for the appellant's land, the no
construction zone can only be taken as 15 meters from the defined
boundary of the water course which is the Morna river - If the site
to the extent it is within the 15 meters of the defined boundary of
* Author
[2024] 7 S.C.R.
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Kazi Akiloddin v. State of Maharashtra & Ors.
water course, that part alone could be said to have no potential
for development - The land beyond the 15 meters mark from the
defined boundary of the water course in the site of the appellant
should be treated independently - Land of the appellant except
to the extent of 15 meters from the defined boundary of the water
course is not covered by the no construction zone - Considering
the potentiality of the land and its situs, except for the lands upto
15 meters from the defined boundary of the water course, Rs.100/-
per sq.ft. awarded for 68.3% of the total admeasuring area -
Thus, appellant entitled to Rs.100/- per sq. ft. for the 68.3% (approx.)
of the balance area, after excluding the land area, if any, which
falls within the 15 meters from the defined boundary of the water
course - For the land falling within the no construction zone, if
any, as per the Standardized Building Byelaws, he will be paid at
the rate determined by the Special Land Acquisition Officer in the
award - Appellant entitled to rental compensation @ 8% of the
awarded amount, as directed - Operative order of the Reference
Court modified. [Paras 41, 43, 45, 56, 57, 66]
Land Acquisition - Exemplars - Reliance upon - Two
transactions, one between independent/unrelated parties and
the other between related parties - Both transactions took
place without much time gap:
Held: When there is a choice between an exemplar where the
transaction is between unrelated parties dealing at arm's length
and between an exemplar where the transaction is between related
parties of a higher value, both of which are broadly around the
same period, prudence would dictate and common sense would
command that the value set out in the transaction between unrelated
parties is accepted - In the present case, the transaction which is
at arm's length is accepted and the market value of the amount
of Rs. 100/- per sq. ft. is accepted and the claim of Rs. 175/- per
sq. ft is rejected. [Paras 62, 65]
Land Acquisition - Development charges - Determination -
Acquisition for construction of a flood protection wall:
He

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[2024] 7 S.C.R. 2248 : 2024 INSC 505
Kazi Akiloddin
v.
State of Maharashtra & Ors.
(Civil Appeal No. 6776-6777 of 2013)
10 July 2024
[Surya Kant and K.V. Viswanathan,* JJ.]
Issue for Consideration
What should be the market value of the land of the appellant as on
03.06.1999; does the site of the appellant fall within 'Blue Zone' as
contended by the acquiring body-Vidarbha Irrigation Development
Corporation (VIDC); if it falls within the 'Blue Zone', what should be
the market value for the land; if the land or any part thereof is not
to be determined as a 'Blue Zone', what was the 'No Construction
Zone' as per the extant laws; and what should be the market value
payable for that portion; what should be the market value payable
for any portion, falling outside the 'No Construction Zone'.
Headnotes†
Maharashtra Regional and Town Planning Act, 1966 - ss.14(j),
21, 22(j) - Land Acquisition Act, 1894 - s.4 - Land of the
appellant, if fell within the blue zone - Market value thereof
as on 03.06.1999, the date of the Section 4 notification:
Held: High Court not justified in declaring the entire land of the
appellant as falling within the blue zone - If an acquiring body
relies on a statutory injunction, to establish that the land has
no potential, then the burden is on the said acquiring body to
demonstrate without any ambiguity that such a statutory interdict
is in place - VIDC did not discharge the burden in demonstrating
that statutorily there was a valid demarcation of a "Blue Zone"
on the date of the s.4 notification, under the Act - What was
established was only the existence of the bye-law i.e. "Standardised
Building Byelaws and Development Control Rules for "B" and "C"
Class Municipal Councils of Maharashtra" - As on 03.06.1999,
i.e. the date of the s.4 notification for the appellant's land, the no
construction zone can only be taken as 15 meters from the defined
boundary of the water course which is the Morna river - If the site
to the extent it is within the 15 meters of the defined boundary of
* Author
[2024] 7 S.C.R.
2249
Kazi Akiloddin v. State of Maharashtra & Ors.
water course, that part alone could be said to have no potential
for development - The land beyond the 15 meters mark from the
defined boundary of the water course in the site of the appellant
should be treated independently - Land of the appellant except
to the extent of 15 meters from the defined boundary of the water
course is not covered by the no construction zone - Considering
the potentiality of the land and its situs, except for the lands upto
15 meters from the defined boundary of the water course, Rs.100/-
per sq.ft. awarded for 68.3% of the total admeasuring area -
Thus, appellant entitled to Rs.100/- per sq. ft. for the 68.3% (approx.)
of the balance area, after excluding the land area, if any, which
falls within the 15 meters from the defined boundary of the water
course - For the land falling within the no construction zone, if
any, as per the Standardized Building Byelaws, he will be paid at
the rate determined by the Special Land Acquisition Officer in the
award - Appellant entitled to rental compensation @ 8% of the
awarded amount, as directed - Operative order of the Reference
Court modified. [Paras 41, 43, 45, 56, 57, 66]
Land Acquisition - Exemplars - Reliance upon - Two
transactions, one between independent/unrelated parties and
the other between related parties - Both transactions took
place without much time gap:
Held: When there is a choice between an exemplar where the
transaction is between unrelated parties dealing at arm's length
and between an exemplar where the transaction is between related
parties of a higher value, both of which are broadly around the
same period, prudence would dictate and common sense would
command that the value set out in the transaction between unrelated
parties is accepted - In the present case, the transaction which is
at arm's length is accepted and the market value of the amount
of Rs. 100/- per sq. ft. is accepted and the claim of Rs. 175/- per
sq. ft is rejected. [Paras 62, 65]
Land Acquisition - Development charges - Determination -
Acquisition for construction of a flood protection wall:
Held: The purpose for which the land is acquired must be taken
into consideration while determining development charges - Since
the acquisition was for construction of a flood protection wall, thus
there can be no question of any development or any cost thereof -
Land was ripe for use for building purposes - In the special facts
and circumstances of the case, no deduction ordered based on the
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cost for incurring development - Value fetched by smaller plots,
when can be applied in valuing larger tracts of land, discussed.
[Paras 67, 66]
Case Law Cited
State of Orissa v. Brij Lal Misra and Others [1995] Supp. 2 SCR
354 : (1995) 5 SCC 203; Sardara Singh and Others v. Land
Acquisition Collector, Improvement Trust, Rupnagar and Others
(2020) 14 SCC 483; Om Parkash and Others v. State of Haryana
(2016) 13 SCC 190; Special Land Acquisition Officer v. Karigowda
and Others [2010] 5 SCR 164 : (2010) 5 SCC 708; Administrator
General of West Bengal v. Collector, Varanasi [1988] 2 SCR 1025 :
(1988) 2 SCC 150; Himmat Singh & Ors. v. State of Madhya
Pradesh & Anr. (2013) 16 SCC 392; Nelson Fernandes v. Land
Acquisition Officer [2007] 3 SCR 563 : (2007) 9 SCC 447; Bhag
Singh and Others v. Union Territory of Chandigarh through the
Land Acquisition Collector, Chandigarh [1985] Supp. 2 SCR 949 :
(1985) 3 SCC 737; Ashok Kumar and Another v. State of Haryana
[2016] 1 SCR 1084 : (2016) 4 SCC 544 - relied on.
Kazi Akiloddin Sujaoddin v. State of Maharashtra & Ors. [2013] 7
SCR 382 : (2013) 14 SCC 8; Munusamy v. Land Acquisition Officer
[2021] 9 SCR 1 : (2021) 13 SCC 258; Mehrawal Khewaji Trust
(Registered), Faridkot and Others v. State of Punjab and Others
[2012] 4 SCR 24 : (2012) 5 SCC 432; Bhagwathula Samanna
and Others v. Special Tahsildar and Land Acquisition Officer,
Visakhapatnam Municipality, Visakhapatnam [1991] Supp. 1 SCR
172 : (1991) 4 SCC 506; Charan Dass (Dead) by LRs. v. H.P.
Housing & Urban Development Authority & Ors. [2009] 14 SCR
163 : (2010) 13 SCC 398; State of M.P. v. Radheshyam [2022]
9 SCR 743 : 2022 SCC OnLine SC 162; State of Maharashtra
and Others v. Digamber Bhimashankar Tandale & Ors. [1996] 2
SCR 90 : (1996) 2 SCC 583 - referred to.
List of Acts
Maharashtra Regional and Town Planning Act, 1966; Land
Acquisition Act, 1894.
List of Keywords
Land Acquisition; Compensation; Market value of the land;
Exemplars; Development charges; Special Land Acquisition Officer;
Acquisition for construction of a flood protection wall; Blue Zone;
[2024] 7 S.C.R.
2251
Kazi Akiloddin v. State of Maharashtra & Ors.
Blue colour; No Construction Zone; Water course; Potentiality of
the land; Potential value; Building Byelaws; Rental compensation;
Transactions, Independent/unrelated parties; Related parties;
Agricultural purposes; Non-agricultural purposes; Non-agricultural
land; Proximity; Developed areas.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6776-6777 of
2013
From the Judgment and Order dated 17.06.2013 of the High Court
of Bombay at Nagpur in FA No. 1210 of 2008 and FA No. 6 of 2009
With
Civil Appeal Nos. 7322, 7323, 7324, 7325, 7326, 7327, 7328 and
7329 of 2024
Appearances for Parties
Ranjit Kumar, Sr. Adv., R. B. Agrawal, Satyajit A Desai, Ansuman
Singh, Siddharth Gautam, Gajanan N Tirthkar, Abhinav K. Mutyalwar,
Vijay Raj Singh Chouhan, Lav Kumar, Ms. Anagha S. Desai, Nishant
R. Katneshwarkar, Amol Nirmalkumar Suryawanshi, Ms. Srishty
Pandey, Uday B. Dube, Himanshu Chaubey, Siddharth Garg, Srijan
Sinha, Ms. Pallavi Aggarwal, S. S. Shroff, Shrirang B. Varma,
Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla,
Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey,
Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
K.V. Viswanathan, J.
I.
Civil Appeal Nos. 6776-6777/2013 (Kazi Akiloddin Vs.
State of Maharashtra & Ors.)
A.
Facts
1.
These Civil Appeals call in question the correctness of the judgment
dated 17.06.2013 of the High Court of Judicature at Bombay, Nagpur
Bench, Nagpur in First Appeal No. 1210 of 2008 (filed by the appellant
herein) and First Appeal No. 6 of 2009, which was a cross appeal
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filed by the State of Maharashtra & Ors. By the said judgment, the
High Court had dismissed the appeal of the appellant. Dealing with
the appeal of the State, the High Court, while allowing the same,
directed that the appellant shall refund the excess amount withdrawn
with interest @ 9% p.a. from the respective dates of withdrawal.
2.
The facts lie in a narrow compass. The appellant is the owner of the
land bearing Survey No.1 admeasuring 1 hectare and 1700 sq. meters
(1,25,937 sq. ft.) at Mouza Akola (Bujurg), Taluk and District Akola.
3.
A Section 4 notification under the Land Acquisition Act, 1894
(for short 'the Act') was issued for acquisition of the subject land on
03.06.1999. Prior to this, on 15.11.1998, in view of the proposal to
acquire the subject land for construction of a flood protection wall, the
appellant was approached for handing over the subject land on the
assurance of rental compensation. On 15.11.1998, the possession
was also taken. A Section 6 notification under the Act was issued
on 02.12.1999. In the award proceedings, the appellant claimed
compensation @ of Rs. 500 per sq. ft. On 04.08.2000, the Land
Acquisition Officer passed an award to the tune of Rs. 5,61,000/-
per hectare for the subject land, which works out to Rs. 5/- per sq.
ft. (approx.). Importantly, in the award, there is no reference to the
land falling under 'Blue Zone' which has become the main issue in
controversy between the parties before the Reference Court, the
High Court and this Court.
4.
Before the Reference Court, the appellant claimed additional
compensation of Rs. 4,30,84,000/- @ of Rs. 500/- per sq. ft. for the
acquired land of 84,481 sq. ft. on the premise that in the said area
43 plots have been carved out by him. In the break up given for
1 Hectare, 17 R totalling 1,25,937 sq. ft. following was provided:
Total under plots area - 84481 sq. ft. (68.3% approx.)
Total under roads area - 30106 sq. ft.
Total under open space area - 11298 sq. ft.
He also claimed compensation of Rs. 25 lakhs for the expenditure
made on the road and also prayed for damages of Rs. 50 lakhs. Except
for claiming expenditure for laying road to the tune of Rs. 25 lakhs,
no enhanced compensation was claimed for an area of 41,404 sq. ft.
(The area of the road and the open space area as stated above).
[2024] 7 S.C.R.
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Kazi Akiloddin v. State of Maharashtra & Ors.
5.
Before the Reference Court, the appellant examined himself as PW-1,
Mohd. Nadir, photographer, was examined as PW-2 and T.N. Bhoob,
Civil Engineer, was examined as PW-3. The State examined K.S.
Bhoyar, Sub-Divisional Engineer, as DW-1 and Laxman Bhika Raut,
Land Acquisition Officer, as DW-2. The appellant in his deposition
stated that he had planned to convert the land to non-agricultural
purposes. Accordingly, the appellant deposed that he had measured
and demarcated all the 43 plots in the land; that the land was allotted
Seat No. 28-D and Plot No. 20 in Akola City Nazul record and that the
payment receipt evidencing payment for conversion to non-agricultural
purpose was also available on record. The appellant deposed that
the land was touching the Akola Gaothan and that all the adjacent
lands were put to residential use; that the surrounding lands have
been converted to non-agricultural purpose; that the acquired land
was within the municipal limits of Akola City surrounded by police
quarters, other government quarters, Maratha Mahasangh Hostel,
Swami Vivekanand Ashram, Jaju Housing Society, Geeta Nagar,
Laxmi Nagar, Sneh Nagar, A.P.M.C. Sub-Market, Luxury Bus Stand,
Dr. Ambedkar Nagar, BR High School and Kamala Nagar.
6.
As exemplars, certified copies of sale transaction dated 10.05.1999
(exhibit-71) whereby plot no. 50 of an area of 3,000 sq. ft. out of
layout Survey No. 7/2 purchased for a consideration of Rs. 5,25,000/-
averaging to Rs. 175/- per sq. ft. was produced by the appellant.
A Sale Deed of 17.11.1999 (exhibit-72) evidencing an average price
of Rs. 601/- per sq. ft. was also produced. Index of Sale Deed of
14.07.1998 @ of Rs. 1047 per sq. ft. (exhibit -73) was produced.
Sale Deed of 24.08.1998 @ of Rs. 422 per sq. ft. (exhibit-33) was
produced. The appellant/claimant pleaded that the above transactions
were at a nominal distance of 200 ft. to 500 ft. and on that basis,
he claimed an additional compensation @ of Rs. 500/- per sq. ft.
for the 84,481 sq. ft. land as indicated above.
7.
PW-2 Mohd. Nadir, photographer, also spoke about the land being
adjacent to the Akola Gaothan and the existence of Rahat Nagar
Police locality towards west and Maratha Mahasangh towards north.
Photographs were marked.
8.
PW-3, T.N. Bhoob, deposed that he referred to the town planning
development plan at the time of inspection of the property and that
the acquired land did not fall within the 'Blue Zone' area.
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9.
DW-1, K.S. Bhoyar, deposed that a joint measurement was carried
out and a map was prepared depicting the acquired land. In the map,
the zones were shown. According to DW-1, the land in question in
field survey no. 1 was situated in 'Blue Zone' and was also on the
river bed. DW-1 stated that the land was an agricultural land but at
the relevant time, it was barren and was never converted to nonagricultural purpose. According to DW-1, the land was valueless
as it came under 'Blue Zone'; that the land was always covered
by water whenever there was flood and that is the reason why the
land was taken for the construction of flood protection wall and
even the appellant executed a Rajinama letter. DW-1 stated that he
had consulted the Town Planning Authority and collected the town
planning map also.
10. In the cross-examination on 22.01.2008 , DW-1 deposed that he
had not brought the original map on the basis of which Exh.141
was prepared and that he was not in a position to say in which
year Exh.141 was prepared. He though added that it could have
been prepared probably in 1998-99 but even he could not definitely
provide the date and month of its preparation. DW-1 also stated
that after joint measurement, the Taluka Inspector of Land Records
(TILR) office gave the measurement map and in that map the 'Blue
Zone' is not shown. He denied the suggestion that there was no
joint measurement and no map was prepared.
11. DW-2 Laxman Bhika Raut, Land Acquisition Officer, deposed that he
visited the site and inspected the same and found the land to be in
the river bed and comes under 'Blue Zone'. DW-2 stated that in the
award he had not noted the location and other descriptions of the
property and he could not assign any reason as to why he had not
so mentioned in the award. DW-2 admitted that he did not mention
in the award about the inspection of the property. DW-2 stated that
the sale instance referred to in the case of Brijmohan Bhartiya was
not considered as that land was far away from the suit property.
DW-2 admitted that there was no reference in the award Exh.46
to the effect that the suit property was in a 'Blue Zone' and that he
could not assign any reason why it was not so referred.
B.
Findings of the Reference Court
12. The Reference Court, by its judgment dated 02.08.2008, after setting
out the legal position that the potentiality of the acquired lands is to
[2024] 7 S.C.R.
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Kazi Akiloddin v. State of Maharashtra & Ors.
be seen as relevant consideration, set out to analyze the evidence. It
noticed the deposition of the claimant witnesses to the effect that the
land was abutting the Akola Gaothan; that adjoining properties have
been converted to non-agricultural purpose; that the suit property
was surrounded by residential houses, societies, sub-markets and
luxury bus stand; that maps and photographs establishing the said
fact have been produced and held that the claimant had discharged
the initial onus. Dealing with the evidence of the State, it held that
maps produced at Exh.57 to Exh.59 and Exh.141 only showed that
a small strip of blue colour was shown as passing through the suit
property and that it was not clear whether the whole area of the
property is covered under 'Blue Zone'. It highlighted the fact that in
the award Exh.46 there was no reference about the suit property
falling in the 'Blue Zone' and that the said factor had no bearing while
computing the award amount. After discussing the proximity of the
property to developed areas, it held that the acquired property was
within the municipal limit of Akoli city and that evidence on record
showed that the property was surrounded by public offices, roads
and Government residential quarters.
13. The Reference Court held that the Land Acquisition Officer had not
worked out the market value properly since many relevant factors
were ignored. It referred to Exh.71 Sale Exemplar dated 10-5-1999
and the index II extracts at Exh.73(14-7-98) and Exh.74(27-8-1998)
to conclude that the suit property had high potential value. It noticed
that under award Exh.46, the suit property (Survey No. 1), Survey
No. 5/2, Survey No. 7 and Survey No. 2 situated at Akoli (Bk) were
acquired by the same notification for the same purpose of construction
of the said protection wall. On that basis, it held that the claimants
were entitled to get the compensation at the same rate. It took on
record the certified copy of the award passed in LAC No. 183 of
2000 dated 15.10.2005 at Exh.88 and found that in that case the
Reference Court determined the market value @ of Rs. 100/- per sq.
ft. It also noticed that copy of the award of LAC No. 209 of 2022 dated
10.08.2006 with regard to Survey No. 6, Survey No. 7 and Survey
No. 60 of Akoli Khurd were acquired by another notification for the
same purpose. In that case also, the Reference Court determined
the market value @ of Rs. 100/- per sq. ft. Though the certified
copy of the said award was not exhibited, it was taken on record
as Exh.131 C. Thereafter, it held that the appropriate market value
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would be Rs. 100/- per sq. ft. for the acquired property and ordered
the same with all the other consequential benefits.
C.
Findings of the High Court
14. The appellant and the State filed Appeals and cross Appeals before
the High Court. The High Court held that on perusal of the maps, it
was clear that the suit land was just on the bank of the river Morna
and that the other Survey Nos. 5, 6 and 7 [which were the lands
acquired in the awards relied upon by the Reference Court] were
well above survey no. 1 beyond the Gaothan of Akoli (Bk) away
from the river. The High Court found that Survey Nos. 5, 6 and 7
were further sub-divided and Survey No. 7/2 had been converted
to non-agricultural use by order dated 08.07.1982. According to the
High Court, the sale deed (Exh.71) dated 10.05.1999 was in respect
of Plot No. 50 admeasuring 3000 sq. ft. from Survey No. 7/2 @ of
Rs.175 per sq. ft. The High Court held that the sale deed (Exh.71)
could not be taken into account since the acquired land in the present
appeals (Survey No. 1) were never converted to non-agricultural use.
Insofar as the sale deed (Exh.72) dated 17.11.1999 was concerned,
it rejected the same holding that the sale deed was after the Section
4 notification and that the sale deed dealt with a small piece of land
and also appeared to be suspicious for the reason that while Exh.71
showed value @ of Rs. 175 per sq. ft., Exh.72 which was after the
notification under Section 4 showed value @ of Rs. 601 per sq. ft.
Insofar as Exh.33 was concerned, the High Court held that it was
not shown from which survey number it arose and as to when the
property was converted to residential use.
15. The High Court further held that the acquired land in the appeal was
situated on the bank of river Morna and relied on the evidence of
DW-2 Laxman Bhika Raut, the Land Acquisition Officer in support of
the same. It relied on the findings of the Reference Court with regard
to the blue colour only affecting a small strip of the land and held that
the appellant had not seriously challenged the findings. It further held
that upon perusal of Exh.141 map the finding of the Reference Court
that only a small strip of land was affected by blue colour was also
wrong since in Exh.141, major area of the suit land was in the 'Blue
Zone'. Thereafter, it held that since the suit property was affected by
the 'Blue Zone', the same could not have been converted into nonagricultural use like other adjoining survey numbers and observed
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Kazi Akiloddin v. State of Maharashtra & Ors.
that perhaps that was why no attempt to convert the land to nonagricultural use was made. It relied on Exh.67 dated 25.02.2000 which
was a communication by the Assistant Director, Town Planning, Akola
to the Land Acquisition Officer. That letter mentioned in para 2 that
the acquired land in the appeal fell in a no development zone and
as such was not eligible to be converted to non-agricultural purpose.
16. Thereafter, the High Court concluded that the suit land was not having
non-agricultural potential unlike Survey Nos. 5/2, 6, 7 and 8. It held
that the award @ of Rs. 100/- per sq. ft. was incorrect. It rejected
the contention about the proposed layout of 43 plots since the land
could not be converted.
17. In spite of noticing that certain areas claimed by the appellant as
developed areas were reckoned and excluded from the computation
of market value, the High Court still held that the value required for
carrying out development ought to be deducted. Holding so, it held
that deduction to the extent of 70% area was required to be made
and as such went on to allow the appeal of the State and restored
the award of the Land Acquisition Officer. It further ordered refund
by the appellant of the compensation withdrawn with interest @ 9%
p.a. Ultimately, the Appeal of the appellant was dismissed and that
of the State allowed. Aggrieved, the appellant is in Civil Appeal Nos.
6776-6777 of 2013 before us.
D.
Contentions:
18. Mr. Himanshu Chaubey, learned counsel, diligently presented the
case for the appellant. Learned Counsel contended that Exh.141
was prepared on the basis of another map and admittedly the
original map was never produced in Court; that under Section 83
of the Indian Evidence Act, plans made for the purpose of any
cause must be proved to be accurate; that DW-1 K.S. Bhoyar (Sub
Divisional Engineer) deposed that Exh.141 was prepared as part
of joint measurement to show the exact situation of the land and
hence presumption of Section 83 is not available to the State; that
Exh.141 was at best a secondary evidence and is admissible only if
it is proved that the original has been destroyed or lost or when the
party offering evidence of its contents cannot, for any other reason
not arising from his own default or neglect, produce it in a reasonable
time and as such argued that the ingredients for admitting secondary
evidence has not been established.
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19. Learned counsel further argued that there was no notification or order
brought on record by the respondent to prove that the subject land
was specified as a 'Blue Zone' and that the development plan, as
placed on record by the appellant, showed that no markings were
present. Learned counsel relied on Section 14(j) and 22(j) of the
Maharashtra Regional and Town Planning Act, 1966 (hereinafter
referred to as the 'MRTP Act') to contend that the master plan must
show the flood control area as the 'Blue Zone' and contended that no
such marking was in the master plan. Learned counsel argued that
no rules or regulations have been brought on record to prove that
respondent no. 2 the Special Land Acquisition Officer is authorized
to prepare the map in the absence of any order; that the High Court
erred in only going by the evidence of DW-1, particularly when DW-1
did not remember as to when the map was made and furthermore the
author of the map-Sh. A.K. Kulkarni was also not examined. Learned
Counsel relied on the affidavit filed by the State of Maharashtra
dated 02.04.2024, to buttress his submission.
20. Learned counsel contends that admittedly as on the date of issuance
of Section 4 notification i.e. 03.06.1999, the blue zone lines had not
been demarcated and the construction was solely governed by the
1974 byelaws. Learned counsel contends that even the documents
sought to be relied upon by the respondent-State have been brought
on record for the first time before this Court and admittedly other
than the map i.e. Exh.141, no other document has been brought on
record to establish that the land of the appellant fell under the 'Blue
Zone'. Learned Counsel contends that the High Court has failed to
consider Exh.52, namely, the map issued by the Authority whereby
the land of the appellant was granted Nazul Sheet No. 28-D and
Plot No. 20. Learned counsel contends that any land for which Nazul
Sheet is issued is considered as a non-agricultural land and relies
on the award dated 05.02.2008 in relation to acquisition of Survey
No. 11 Shahnawazpur, Akola City. Learned counsel contended that
the Land Acquisition Officer did not whisper about the 'Blue Zone'
issue in his award; and that the Land Acquisition Officer proceeded on
the basis of the exemplar from Survey No. 9/1A and the issue of the
'Blue Zone' was raised for the first time before the Reference Court.
21. Learned counsel argued that the potentiality of the land as established
by the evidence has been ignored by the High Court. Learned counsel
submits that pending the Appeal before the High Court, the Income
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2259
Kazi Akiloddin v. State of Maharashtra & Ors.
Tax Department had passed an order dated 31.08.2012 wherein
the land of the appellant was considered as an urban land and a
non-agricultural land. Learned counsel stated that the respondent in
the said proceedings did not object to the same and rather acceded
to the finding that the land of appellant which is acquired is a nonagricultural land.
22. Learned counsel relying on the standardized building byelaws and
Government resolution of 02.04.1974 contended that the acquired
land was not in a no-construction zone and argued that the State
Authorities have failed to bring on record any document to establish
any average flood mark. Learned Counsel stated that as per the
Joint Measurement Report submitted by the respondent-State
Irrigation Department before this Court, the distance between the
land of the appellant and the defined boundary of the water course
is between 15 to 20 meters and therefore, as per the extant byelaws
the land of the appellant is outside the no-construction zone. The
learned counsel argued that the said Joint Measurement Report
was prepared by the respondent at the time of the acquisition and
has even been referred to in the evidence of DW-1. It is stated that
DW-1 further admitted that based on Exh.32 there was an open land
between the river Morna and Survey No. 1. According to the learned
counsel, the explanation offered by the VIDC (Vidarbha Irrigation
Development Corporation) during the hearing that the gap is due
to the curved bank of the river and ought not to be considered as
a gap is unacceptable. According to the learned counsel, such an
argument is itself an admission to the fact that firstly the land of the
appellant was at a height from the river and secondly that there is
a gap between the river and the land of the appellant. According to
the learned counsel for the appellant, the width of the flood wall is
30 meters taking the measurement from the defined boundary water
course till the end of the wall; that as per the Joint Measurement Map
the width of the appellant land is on an average between 50 to 55
meters and the counsel contended that hence the total distance from
the boundary of the water course till the end of the appellant land
is 65 meters. Learned counsel contended that in spite of the rules
declaring that only land upto 15 meters from the defined boundary
of the water course as falling under the no development zone, the
whole land of the appellant has been considered as falling under
the no development zone.
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23. The learned counsel assailed the finding of the High Court about
failure to convert the land to non-agricultural by contending that the
appellant had obtained a Nazul Plot No. from the revenue authority
and carved out 43 plots and even fees were paid and the receipt
was placed on record; and that the only reason why steps could
not be taken was in the meantime Section 4 notification came to be
issued. Learned counsel contended that sale instances cited have
not been taken into consideration by the High Court. In this regard,
he relied on Exh.33 (Rs. 422 per sq. ft.), Exh.71 (Rs. 175 per sq. ft.)
and the sale index of Survey No. 5/1,in Akholi Bk where there was
a transaction of sale deed dated 12.02.1999 of Rs. 1,50,000/- for
1500 Sq. ft. area of plot no 78. Learned counsel contended that the
highest exemplar should have been considered. Learned counsel
argues that the question of development charges does not arise
since that purpose of acquisition did not entail any development.
24. Mr. Uday B. Dube, learned Counsel for the Vidarbha Irrigation
Development Corporation (VIDC) strongly opposed the appellant's
submissions and contended that admittedly the land is situated on the
bank of the river and concurrent findings have been recorded in that
regard. Learned counsel placed reliance on the evidence of DW-1 in
respect of the location of the land. Learned counsel relied on Exh.67
dated 25.02.2000 wherein it is recorded that Survey No. 1 fell in a
no development zone. Learned counsel relied on the evidence of
DW-2-the Special Land Acquisition Officer. Learned Counsel argued
that the soil for the wall was obtained from digging the land of the
appellant. Learned counsel submits that the appellant in spite of
being a developer has not obtained a non-agricultural use permission;
learned counsel contends that the land was prone to floods and that
the award of Rs. 100/- per sq. ft. in the case of appellant was totally
untenable. Learned counsel stated that the map relied upon by the
appellant to show that there was a road in between the land of the
appellant and river is completely incorrect and that the dotted land
denoted the slope. Learned counsel prayed that the map produced
during the hearing in this Court should be rejected.
25. Insofar as the issue of 'Blue Zone' is concerned, learned counsel
contended that it was the duty of the Irrigation Department to draw
blue or red line and that the Irrigation Department has done its
duty. In the written submission of VIDC, it is categorically averred
as follows :-
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Kazi Akiloddin v. State of Maharashtra & Ors.
"Mere failure on the part of the Town Planning Department
to give effect to it in Development Plan would not have
any bearing on the valuation".
26. Learned counsel submitted that three sale deeds produced in the
matter of Bhartiyas (LAC No. 183) were suspicious transactions
between related parties, and hence prayed that the Appeals be
dismissed.
27. We have also heard Mr. Shrirang B. Varma, the learned counsel for
the State who has placed reliance on the affidavit dated 02.04.2024
filed by them pursuant to the order of 20.03.2024. We have considered
the affidavit in detail hereinbelow.
28. We have given our anxious consideration to the contentions urged
by the parties.
E.
Questions
29. The following questions arise for consideration:
(i) What should be the market value of the land of the appellant as
on 03.06.1999? To answer this, the following further questions need
to be considered.
(a) Does the site of the appellant fall within 'Blue Zone' as contended
by the acquiring body -VIDC?
(b) If it falls within the 'Blue Zone', what should be the market value
for the land?
(c) If the land or any part thereof is not to be determined as a 'Blue
Zone', what was the 'No Construction Zone' as per the extant laws
and what should be the market value payable for that portion?
(d) What should be the market value payable for any portion, falling
outside the 'No Construction Zone'?
Reasoning and conclusion:
We have considered question no. 1(a) to 1(d) together for
convenience.
30. During the course of hearing on 20th March, 2024, we made the
following order:
"1.
Arguments by the parties remained inconclusive.
Meanwhile, original records have been requisitioned.
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2.
Learned counsel for the parties seek and are granted
time to inspect the original record and make further
submissions.
3.
An officer of the Irrigation Department is present along
with some latest photographs of the site. However, he
has not brought the original record regarding fixation
of blue line by the Irrigation Department in purported
exercise of its power under the Maharashtra Regional
& Town Planning Act, 1966.
4.
Mr. Uday B. Dube, learned counsel for the respondent
Corporation undertakes to produce such record."
31. Pursuant to the said Order, a duly sworn affidavit of 2nd April, 2024
has been filed by the Assistant Director of Town Planning (Branch
Office, District Akola) which reveals certain telling facts. The affidavit
states that its contents are confined to marking of flood lines in the
city Akola and the maps thereof. It avers that the land in question in
these Appeals was situated outside the Municipal Council of Akola
which fact, however, is disputed by the appellant. Be that as it may,
the affidavit acknowledges that under Section 14(j) of the MRTP Act,
the proposals for irrigation, water supply and hydro-electric, works,
flood control and prevention of river pollution are the constituents
of the regional plan. It further avers that as per the provisions of
Section 22(j) of the MRTP Act, the proposals for flood control and
prevention of river pollution are constituents of the development plan.
32. Digressing a bit from the affidavit, it may be pointed out herein that
under the MRTP Act, Section 2(25) defines regional plan to mean
a plan for the development or redevelopment of a region which is
approved by the State Government and has come into operation
under the Act. Under Section 21, development plan is defined to
mean a plan for the development or redevelopment of the area
within the jurisdiction of a planning authority and includes revision
of a development plan and proposals of a special planning authority
for development of land within its jurisdiction. Section 14 which deals
with the contents of the regional plan along with sub-clauses - a and j
are extracted herein below:
"14. Contents of Regional Plan
Subject to the provisions of this Act and any rules made
thereunder for regulating the form of a Regional Plan and
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Kazi Akiloddin v. State of Maharashtra & Ors.
the manner in which it may be published, any such Regional
plan shall indicate the manner in which the Regional Board
propose that land in the Region should be used, whether
by carrying out thereon development or otherwise, the
stages by which any such development is to be carried
out, the network of communications and transport, the
proposals for conservation and development of natural
resources, and such other matters as are likely to have
an important influence on the development of the Region;
and any such plan in particular, may provide for all or any
of the following matters, or for such matters thereof as the
State Government may direct, that is to say-
(a) allocation of land for different uses, general distribution
and general locations of land, and the extent to which the
land may be used as residential, industrial, agricultural,
or as forest, or for mineral exploitation;
xxx xxx
(j) proposals for irrigation, water supply and hydro-electric
works, flood control and prevention of river pollution;"
33. Section 21 speaks of the Development plan and Section 22 which
speaks of the contents of the development plan, insofar as they are
relevant, are extracted herein below:
"21. Development Plan
(1) As soon as may be after the commencement of this Act,
but not later than three years after such commencement,
and subject however to the provisions of this Act, every
Planning Authority shall carry out a survey, prepare an
existing land-use map and prepare a draft Development
plan for the area within its jurisdiction, in accordance with
the provisions of a Regional plan, where there is such a
plan [publish a notice in the Official Gazette and in such
other manner as may be prescribed stating that the draft
Development plan has been prepared] and submit the
plan to the State Government for sanction. The Planning
Authority shall also submit a quarterly Report to the State
Government about the progress made in carrying out the
survey and prepare the plan.
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22. Contents of Development Plan
A Development plan shall generally indicate the manner
in which the use of development land in the area of a
Planning Authority shall be regulated, and also indicate
the manner in which the development of land therein shall
be carried out. In particular, it shall provide so far as may
be necessary for all or any of the following matters, that
is to say,-
(a) proposals for allocating the use of land for purposes,
such as residential, industrial, commercial, agricultural,
recreational;
....
(j) proposals for food control and prevention of river
pollution;"
34. Reverting to the affidavit of the State dated 02.04.2024, the affidavit
avers that the draft regional plan was of the year 2002 and the draft
development plan (revised) was of the year 2000. It is averred that
under Section 26(1) of the MRTP Act, the publication of notice of
draft development plan was of 03.02.2000. The affidavit avers that
the notice of regional plan for Akoli Washim District in draft form
under Section 16 was published on 25.12.2002. The draft regional
plan itself is of 2002 and the affidavit indicates that it was sanctioned
under Section 15(1) of the MRTP Act on 23.04.2012 and came into
force on 15.06.2012.
35. The State makes out a case that both for the draft regional plan
of 2002 for the Akola Washim region as well as draft development
plan (revised) 2000, the blue and red flood lines which have been
produced by the concerned Executive Engineer, Irrigation Section
Akola vide letter dated 18.01.1999 were taken into consideration
as constituents. It is a case that the blue and red flood lines were
shown on the maps of the peripheral plan of the Akoli City based
on the proposal of the Executive Engineer.
36. The affidavit has certain other interesting averments. It avers that
the development plan for the original limits of the Akola Municipal
Council was in force from 01.04.1977 where Survey no. 1 wherein
appellant's land is situated, was not included in the No Development
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2265
Kazi Akiloddin v. State of Maharashtra & Ors.
Zone. Thereafter, the development plan for the extended limits of
the Akola Municipal Council was sanctioned by the Government
on 30.12.1992 and came into force from 01.03.1993. In the said
development plan, the affidavit states that the land in question was
not part of the sanctioned development plan.