Full Judgment Text
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.21 OF 2013
Shri Ashwin Ramaniklal Gosalia (Deceased)
Through Legal Heirs :
Smt. Sheela Ashwin Gosalia & Ors. … Appellants
V/s.
The State of Maharashtra & Ors. … Respondents
Mr. Rajesh S. Patil for the Appellant
Mr. G. S. Hegde with C. M. Lokesh i/b. G. S. Hegde & Associates for
Respondent No.3.
Mr. A. R. Patil, AGP for Respondent Nos.1 and 2.
CORAM: K.K. TATED &
SARANG V. KOTWAL, JJ.
JUDGMENT RESERVED ON : FEBRUARY 21, 2018
JUDGMENT PRONOUNCED ON : MARCH 1, 2018
JUDGMENT (PER : K. K. TATED, J.) :
1. Heard the learned counsel for the parties. By this appeal, the
claimants are challenging the judgment and award dated 12.09.2012
passed by the Civil Judge, Senior Division Palghar in LAR No.1/2012
(Old LAR No.5/1988) awarding compensation in respect of the
acquired land @ Rs.36 per sq.mtr. for 4500 sq.mtr. land, Rs.24/ per
sq.mtr. for 13200 sq.mtr. land and Rs.18/ per sq.mtr. for 32150 sq.mtr.
land instead of @ Rs.300/ per sq.mtr. as claimed by the claimant in
Reference u/s.18 of the Land Acquisition Act, 1894 (said Act).
Basavraj G Patil 1/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
2. In the present proceedings, the Special Land Acquisition Officer
issued Notification u/s.4 of the said Act for acquiring claimants' land
admeasuring 5H 20R from Sy.No.102 Hissa No.A/1 of village Bosiar Tq.
Palghar, Dist. Thane for Bus Station and Depot. The said Notification
u/s.4 was published in official gazette on 16.09.1682. In 1985
individual notices were issued to the claimants. In the meanwhile the
claimants made representation to the State Government for releasing
their property from acquisition. On their representation the
Government released 1H 1.5R from the acquisition. The Government
had decided to acquire total area of 49850 sq.mtr. only. Pursuant to the
Notice u/s.9(3)(4) of the said Act, the claimants submitted their claim
by letter dated 07.07.1986 before the Land Acquisition Officer, Thane
and claimed compensation @ Rs.300/ per sq. yard aggregating to
Rs.1,92,48,000/, Rs.2,49,44,708/ towards loss which they suffered
and for road development along with 30% solatium and component. In
aggregate the claimants made their claim before the Special Land
Acquisition Officer to the tune of Rs.3,74,94,754/.
3. After considering the evidence on record the Special Land
Acquisition Officer declared the award dated 10.09.1987 and awarded
sum of Rs.8,81,250/ towards the land value and Rs.56,795/ for
structure. The Land Acquisition Officer in his award dated 10.09.1987
(Exhibit104) described the land as under:
“4 . Situation and Description:
The land under acquisition has been inspected by me on
11.11.1986. The land is situated in the north side of Boisar –
Basavraj G Patil 2/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
Tarapur Road. it is very near from Boisar Railway Station on
western Railway Line. The same is also near Tarapur MIDC estate
and this area is developing very fast. There are two pacca
construction, three huts and one latrine in the land under
acquisition and the Executive Engineer has valued these
constructions for Rs.56795.00”
4. The Special Land Acquisition Officer at the time of determining
the value of the acquired land relied upon five sale instances and fixed
the market value of the acquired land on the basis of the belting
system. Paragraph 8 of the award reads thus:
8. Valuation : The sale statistics have been obtained from
Talathi Bosiar on 20.02.86 and again on 11.11.86. There are only
five sales of 1980 which are noted in the sales statistics as under:
M.E.No. Date of
Transaction
S.No.
H.No.
Area in
sq.mtrs.
Cost of
lands
Rs.
Average
rate per
sq.mtr. Rs.
1) 1613 29/09/80 138 pt 76 18499/ 243.40
2) 1623 11/07/80 53 pt 158 9000/ 57.00
3) 1647 28/10/80 142/3pt 76 11000/ 144.00
4) 1688 28/10/80 108 pt
20000/ 33.60
1568
5) 1758 28/12/80 25/2
26/4
120000/ 76.53
Sales of 1981 to 1983 are not appearing in the said sale
statistics. The sales of lands of this village are noted on the village
map of Boisar and the said map is kept in this file. The above five
sales are the sale of N.A. lands of village Boisar which are very
high. The purchase rate of land under acquisition by the trust from
Mrs. Irani comes to Rs.37.33 per sq.mtr. This land is situated in
the heart of village Boisar and is very near to Boisar Railway
Station as well as near the MIDC area of this village. This land is
having normal level and is plane and can be utilized for any work
immediately.
Basavraj G Patil 3/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
Though the land is touching to Tarapur Boisar Road, the
frontage of the site is small one. The land is spread over from east
to west. The frontage of the land is only nearly 30 mtr. Though
the trust had purchased this land at Rs.37.33 per sq.mtr., the vlaue
of the land has been reduced due to less frontage. I therefore
consider that value of the land should have been considered as per
belt from frontage to west side of land which are as under:
a) Belt No.I. 4500 sq.mtr.
b) Belt No.II – 13200 sq.mtr.
c) belt No.III – 32150 sq.mtr.
The sale of land bearing S.No.108 for 595 sq.mtr. was on
28.10.80 at Rs.33.60 which land is near the land under acquisition
but it is less in area than area of belt No.I. I therefore consider that
land admeasuring 4500 sq.mtr. in belt No.I should be valued at
Rs.30/ per sq.mtr.
Smt. Irani has made an agreement to sell 3 acres land to
M/s. Gosalia Trust at Rs.17/ per sq.mtr. The area of the land
mentioned in belt No.III is nearly thrice the area of this agreement
of sale.
I therefore fix the value of the land as under:
Belt Area Sq.mtr. Rate Rs. Value Rs.
1. Belt NO.I 4500 30/ 135000/
1. Belt NO.II 13200 20/ 264000/
1. Belt NO.III 32150 15/ 482250/
Total 881250/
5. Thereafter the Special Land Acquisition Officer taken possession
of the acquired land on 11.12.1987 and prepared the possession receipt
to that effect. Thereafter the Special Land Acquisition Officer issued
Notification u/s.12(2) of the said Act and duly served on the claimants
on 13.12.1987.
Basavraj G Patil 4/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
6. Being aggrieved by the award passed by the Special Land
Acquisition Officer, the claimants preferred Reference u/s.18 of the said
Act dated 21.01.1988. The claimants in their claim Application u/s.18
of the said Act made several grievances about the valuation done by the
Special Land Acquisition Officer. They submitted that the Special Land
Acquisition Officer, without considering the potentiality of the land,
fixed market value of the land at the time of passing the award u/s.11
of the said Act. The claimants made averments in their Application
u/s.18 of the said Act that the said land was purchased by them in the
year 1981 with a view to develop it into a housing colony with a
shopping complex therein. They commenced preparations in that
direction in the year 1980 by surveying the land, preparing layout
through Architect M/s. R. M. Parekh & Co. comprising of two buildings
for a shopping center and 22 buildings for residential flats. The said
plan was duly submitted for approval to the concerned authority like
Collector, Architect of Town Planning, Village Panchayat, Boisar.
Thereafter they made an Application for N.A. Permission with the
Collector of Thane on 21.01.1980. As the collector had failed to pass
final order on their Application within stipulated time, as per the
Maharashtra Land Revenue Code, the said permission was deemed to
have been granted on 21.03.1980 i.e. after lapse of 2 months from the
date of making the Application. On the basis of the deemed permission
the claimant commenced their building activities by mobilizing the
resources for starting the work, like marking the plots on the land,
alignment of road etc. and also commenced the work of internal road.
The Appellant claimant constructed water macadam road to the extent
Basavraj G Patil 5/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
of 325 ft which was required for the first phase of the development of
the property. They also constructed two large sheds of permanent type
to be used as a partial godown for storing valuable materials like
cement, steel, etc. and partly to be used as residential quarters for
supervisory staff and workers. In due course, the formal N.A. Order
dated 22.10.1982 was sent to the Additional Collector, Thane.
7. It was the contention of the claimants in their Application u/s.18
of the said Act that though they placed all these facts on record, the
State of Maharashtra, without considering these facts decided to
proceed with acquisition of land to the extent of 49850 sq.mtr. leaving
small portion for the claimant. On the basis of these facts, the
claimants claimed compensation in respect of the acquired land @
300/ per sq.mtr. Following are the prayers of the Application under
section 18 of the said Act.
“a) The sum of Rs.3,74,94,754/ minus Rs.8,51,250/ awarded
Rs.3,66,13,504/ inclusive of cost of road development and all
permissible heads of compensation under Sec. 23 of the Land
Acquisition Act be paid to the claimants by way of enhancement.
b) The claimants be awarded statutory compensation at the
rate of 12% p.m. from the date of the Notification under Sect.4 of
the Act in terms of 8.23 of Land Acquisition Act.
c) The claimants be awarded 30% solatium as per S.23(2) of
the Act.
d) The claimants be awarded interest on the amount awarded
as per S.8.28 of the Act.”
Basavraj G Patil 6/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
8. Said Reference was registered as Reference Application
No.1/2012 (Old No.5/1988) in the court of the Civil Judge, Senior
Division at Palghar.
9. In trial court, the claimant filed his affidavit of evidence dated
23.02.2004 (Exhibit 64), affidavit dated 24.02.2005 of PW.2 Prashant
Waman Malawade, Architect and Valuer under Order XVIII Rule 4 of
the Code of Civil Procedure, 1908. The claimants also placed on record
following documents:
Sr.
No.
Exhibits Particulars
1 EXHIBIT 81 Permission letter dated 30/07/1981 granted by
Assistant Secretary to Government, Revenue
and Forest Department for sale of certain part of
Sy. No.102 H. No.1/2 at village Boisar Taluka
Palghar District Thane which was reserved
under Maharashtra Resettlement of Project
Displaced Persons Act, 1976
2 EXHIBIT 84 Sale Deed dated 24.12.1981 between Homai
Kaikhushroo Irani (Tafti) vendor and Shri
Ashwin Ramniklal Gosalia and Kaushik
Ramniklal Gosalia, Trustees of A.K. Gosalia
Trust in respect of area admeasuring 11660
sq.mtrs from Sy.No.102 H.No. 1/2 part (from
acquired land)
3 EXHIBIT 86 Conveyance Deed dated 21/12/1981 Ashwin
Ramnikalal Gosalia and Kaushik Ramniklal
Gosalia, Trustees of A.K. Gosalia Trust and
Homi Kaikhushroo Irani (Tafti) in respect of
land admeasuring 41986 sq.mtrs. from Sy.
No.102 H. No.102 part (from acquired land)
Basavraj G Patil 7/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
4 EXHIBIT 116 Valuation Report prepared by N.M.Mulye
Government approved valuer relying on:
a) Sy. No. 114 agricultural land area 377.88
sq.mtrs Rs.5000 rate p.s.m. 13.23 sq.mtrs.
16/05/89
b) Sy. No. 100/A/1/1 agricultural land area
23000 sq.mtrs Rs.36000 Rate PSM 1.56 sq.mtrs.
21/07/80
c) Survey No.84/A agricultural land area 1325
sq.mtrs Rs.25,000 Rate PSM 18.86 sq.mtrs.
04/05/89
5 EXHIBIT 121 SALE DEED DATED 08/05/77
6 EXHIBIT 124 SALE DEED DATED 15/03/79
7 EXHIBIT 125 SALE DEED DATED 22/11/79
8 EXHIBIT 126 SALE DEED DATED 07/12/79
9 EXHIBIT 127 SALE DEED DATED 07/12/79
10 EXHIBIT 119 CONVEYANCE DEED REGISTER AT SR.NO.16
11 EXHIBIT 120 CONVEYANCE DEED REGISTER AT SR.NO.37
12 EXHIBIT 128 SALE DEED DATED 11/01/80
13 EXHIBIT 130 SALE DEED DATED 12/05/80
14 EXHIBIT 129 SALE DEED DATED 28/01/80
15 EXHIBIT 122 SALE DEED DATED 30/03/1978
16 EXHIBIT 121 SALE DEED DATED 23/03/1978
17 EXHIBIT 123 SALE DEED DATED 19/02/1979
Basavraj G Patil 8/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
18 EXHIBIT 132 7/12 EXTRACT OF S.NO.102/1 H.A NO.1/2
19 EXHIBIT 133 7/12 EXTRACT OF S. NO.102/1 HISSA NO.1/2
20 EXHIBIT 134 Extract from Register No. 8 in respect of
acquired land (land reference register)
21 EXHIBIT 137 Order dated 22/10/82 passed by Additional
Commissioner, Thane on application dated
27/03/1982 from A. K. Gosalia Trust of Boisar
for N.A. permission in respect of area
admeasuring 41741.90 sq.mtrs. out of Survey
No.102/1 Hissa No.1/2 of Boisar Taluka Palghar
22 EXHIBIT 143 Copy of Decree dated 23/12/81 passed by High
Court of Bombay (Original Side) in Suit
No.2023 of 1981 between Ashwin Ramniklal
Gosalia and Anr. Vs. Homi Kaishushroo Tafti
alias Irani (in respect of the acquired land)
23 EXHIBIT 146 Copy of MAP showing the acquired land from
village Boisar
10. Similarly, the Respondent also filed their written statement. The
Respondent No.2 Maharashtra State Road Transport Corporation
(Corporation) filed their written statement dated 29.03.2004. The
Special Land Acquisition Officer Sushma Waman Satpute filed affidavit
of evidence (Exhibit 100). The Respondent No.3 Corporation filed
affidavit of Naresh Narayan Mulye, Government approved Valuer
(Exhibit 115) and also placed on record valuation report dated
10.03.2006 prepared by Mr. Naresh N. Mulye (Exhibit 116).
11. Considering the submissions made by the learned counsel for
both the parties and the evidence on record, the Reference Court held
that the claimants are entitled to total compensation to the tune of
Basavraj G Patil 9/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
Rs.10,57,500/ in respect of the acquired land @ 18 per sq.mtr. for an
area of 32150 sq. mtr. @ Rs.24/ per sq.mtr. for an area of 13200
sq.mtr. and @ Rs.36/ per sq.mtr. for the land admeasuring 4500
sq.mtr. Hence, the present First Appeal for balance amount of
Rs.3,64,37,254/.
12. The learned counsel for the claimant submits that the impugned
judgment and award passed by the Trial Court dated 12.09.2012 is
against the justice, equity and good conscience and same is liable to be
set aside. He submits that the Reference Court has failed to consider
the fact that the land was having NA potentiality at the time of deciding
the market value of the acquired land. Not only that the NA permission
was granted by the authority for carrying out construction. He further
submits that the Trial Court has not considered the valuation report
submitted by them at the time of deciding the market value of the
acquired land.
13. The learned counsel for the claimants submits that prior to 1980
the claimant No.2 Smt. Homai Kaikhushroo Irani (Tafti) agreed to sell
the Appellant an area of 41986 sq.mtr. for lump sum consideration of
Rs.18 lacs. He submits that as the Vendor denied to execute the sale
deed in their favour, they filed suit No.2023/1981 on the original side
of this court for specific performance of agreement. Thereafter the said
suit was settled between the parties and they filed Consent Terms dated
29.01.1981. As per the said Consent Terms the owner (Vendor) has
executed the conveyance deed dated 21.12.1981 (Exhibit 86) in
favour of the claimant for land admeasuring 41986 sq.mtr. from
Basavraj G Patil 10/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
Sy.No.102 Hissa No.1/2 (Part) and same was duly registered with the
Sub Registrar. Immediately thereafter the owner also executed sale
deed dated 24.12.1981 (Exhibit 84) in respect of the remaining area
of 11660 sq.mtr. He submits that by sale deed dated 21.12.1981 they
purchased 41986 sq.mtr. land for 18 lacs i.e. @ Rs.42.87 per sq.mtr.
and by sale deed dated 24.12.1981 (Exhibit 84) area of 11660 sq.mtr.
@ 17.15 per sq.mtr. He submits that though these sale deeds were on
record, the Reference Court has failed and neglected to consider the
same. He submits that prima facie in the year 1981 the claimants
purchased the suit property admeasuring 41986 sq.mtr. @ Rs.42.87 per
sq.mtr. Whereas the Reference Court has awarded the compensation in
respect of the acquired land on an average Rs.21.21 per sq.mtr. (total
compensation of Rs.10,57,500 ÷ 49850 sq.mtr.). He submits that the
Reference Court ought to have decided the market value in respect of
the acquired land on the basis of the sale deed dated 21.12.1981. He
submits that the Reference Court has erred in determining the market
value of the acquired land on the basis of the belting system. He
submits that the belting system can be used only if a large chunk of
land is acquired. Hence, the judgment and award passed by the
Reference Court is required to be modified holding that the claimants
are entitled to compensation in respect of the acquired land @ Rs.300/
per sq.mtr..
14. The learned counsel for the claimant further submits that the
Reference Court has erred in coming to the conclusion that the
claimants are not entitled to interest u/s.34 of the said Act. He submits
that as per section 34 of the said Act the claimants are entitled to
Basavraj G Patil 11/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
interest when the amount awarded by the Land Acquisition Officer is
not paid or deposited on or before taking possession of the land. He
submits that in the present proceedings the Special Land Acquisition
Officer has taken possession of the land on 11.12.1987. Therefore,
they are entitled to interest as per section 34 till the date of payment
and/or depositing the same.
15. The learned AGP for the State vehemently opposed the First
Appeal. He submits that the Reference Court, considering the evidence
on record rightly decided the market value of the acquired land as on
the date of issuing Notification u/s.4 of the said Act. He submits that
bare perusal of the evidence of the claimants as well as the Valuer Mr.
Narayan N. Mulye shows that they failed to produce any cogent
evidence to show that the claimants are entitled to compensation in
respect of the acquired land @ Rs.300/ per sq.mtr. He submits that
admittedly on the date of issuing Notification u/s.4 of the said Act, the
land was in use as agricultural land. Same thing is admitted by the
claimant himself in his crossexamination. He submits that the
claimant has specifically stated in his crossexamination that “it is true
that till 1982 the land was used for cultivating grass as per the entry in
7/12 extract” . Therefore, there is no question of deciding the market
value of the acquired land on the basis of the square feet or square
meter. It ought to have been decided on the basis of Acre and Hector.
16. The learned AGP further submits that though the claimant relied
on several sale instances at Exhibit 121, 124, 125, 126, 127, 119, 120,
128, 130, 129, 122, 131, 123 they failed and neglected to examine
Basavraj G Patil 12/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
either purchaser or seller. He further submits that all those sale
instances were in respect of the land with structure and/or house. All
those sale instances were in respect of the small plot of lands
admeasuring 58 sq.mtr. to 152 sq.mtr. only. Therefore, there is no
question of interfering with the well reasoned judgment and award
passed by the Reference Court.
17. The learned counsel for Respondent No.3 corporation
vehemently opposed the First Appeal. He submits that the Reference
Court, on the basis of the evidence on record has rightly decided the
market value of the acquired land as on the date of issuing Notification
u/s.4 of the said Act dated 30.08.1982. He submits that they examined
the valuer Mr. Narayan N. Mulye (Exhibit 115 and 115A). He submits
that the valuer has submitted his report dated 10.03.2006 (Exhibit
116) stating that the valuation of the acquired land should not be more
than Rs.7,51,900/. He submits that the Valuer Mr. Narayan N. Mulye,
at the time of preparing the valuation report (Exhibit 116) relied upon
the following sale instances:
INSTANCES OF SALE AT MOUJE BOISER, TALUKA PALGHAR,
DISTRICT THANE
Sr.
No.
Sy. No. Area in
Sq. Mt.
Purchase
Price in Rs.
Rate
per
Sq.Mtr.
Date of
Registration
Sr. No.
and Page
No.
1 Agricultural land
32/3 (pt)
15000.00 468000.00 31.20 22/3/89 4615/135,
114 to 121
2 Agricultural land
114
108.64 4000.00 36.81 13/12/89 5542/155,
59 to 63
3 107/1 250.00 10000.00 40.00 18/87
4 105 & 106 100.00 2000.00 20.00 13/12/89 5753/155,
298/ to
300
Basavraj G Patil 13/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
5 Agricultural land
114A
500.00 20000.00 40.00 05/10/89 5107/146,
99 to 103
6 61/3(P) N.A. 200.00 2000.00 10.00 29/09/87 1029/87
7 31/1 N.A. 1200.00 9000.00 7.50 03/06/84 612/87
ENCLOSURE III
SALE DEED AT MOUJE BOISER, TALUKA PALGHAR,
DISTRICT THANE
Sr.
No.
Sy. No. Particulars Area in
Sq. Mtr.
Amount
Rs.
Rate per
Sq. Mtr.
Year
1 114 Vacant
agricultural land
377.88 5000.00 13.23 16/5/1989
2 100/A/1/1 Vacant
23000.00 36000.00 1.56 21/07/1980
agricultural land
3 84A Vacant
agricultural land
1325.00 25000.00 18.86 04/05/89
18. The learned counsel for the Respondent No.3 submits that the
market value decided by the Reference Court was as per the prevailing
market value of the acquired land on the date of issuing Notification
u/s.4 of the said Act. He further submits that admittedly on the date of
issuing Notification u/s.4 of the said Act, the land was being used as
agricultural land for growing grass. Therefore, there is no question of
deciding the market value of the acquired land on the basis of the
square feet and square meter.
19. The learned counsel for Respondent No.3 acquiring body submits
that though the claimants relied on Exhibit 86 sale deed dated
21.12.1981 in respect of the land admeasuring 41986 sq.mtr. from the
same survey number No.102, that cannot be considered for fixing the
market value of the acquired land. He submits that said sale deed was
Basavraj G Patil 14/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
executed by the owner of that land as per the Consent Terms filed in
the High Court Suit No.2023/1981 (O.S.). He submits that a copy of
the plaint in the High Court Suit No.2023/1981 (O.S.) was not placed
on record by the claimant. Therefore, it is very difficult to understand
on what basis they purchased the property @ Rs.42.82 per sq.mtr. He
submits that immediately after three days the claimant purchased
remaining land admeasuring 11660 sq.mtr. from the same survey
number 102 by sale deed Exhibit 84 @ Rs.17.15 per sq.mtr. from the
same land owner. Therefore, it is very difficult to rely on both these
sale instances Exhibit 84 and 85 for deciding the market value of the
acquired land.
20. The learned counsel for Respondent No.3 acquiring body submits
that initially the Government had decided to acquire 5H. 20R. land. In
spite of Notification u/s.4 of the said Act the claimant had started
development on certain portion of the land. Thereafter he approached
the Government for releasing the land from acquisition. He submits
that at the time of releasing 1H. 18.5R. from the acquisition more than
75% frontage was taken by the claimant and thereafter he developed
the same and sold the flats @ 330 to 350 per sq.ft. Therefore the sale
instances placed on record by the claimants in respect of those flats
were rightly rejected by the Reference Court.
21. The learned counsel for Respondent No.3 acquiring body submits
that the Reference Court, in paragraph 17 of the impugned award
specifically recorded that the claimants have restricted their claims to
the extent of Rs.27,64,681/ as enhanced compensation (vide written
Basavraj G Patil 15/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
argument Exhibit 168).
22. On the basis of these submissions the learned counsel for the
acquiring body submits that there is no substance in the present appeal
and same is liable to be dismissed with costs.
23. On the basis of the pleadings, submissions and the documents on
record, the following point arises for our consideration :
a) “whether the claimants have made out a
case for interference in the impugned award
dated 12.09.2012 passed by the Civil
Judge, Senior Division, Palghar in LAR
No.1/2012? “
Yes
b) “If yes, at what rate the claimants are
@ Rs.32.17 PSM for
the acquired land
entitled to compensation in respect of the
acquired land?”
24. For deciding the present appeal some of the following authorities
of the Supreme Court are required to be kept in mind, which are as
under:
i) Shakuntalabai (Smt) and Ors. Vs. State of Maharashtra
(1996) 2 SCC 152, wherein the Apex Court has held that
evidence of market value of the acquired land available and
admitted by the claimant, market value of the adjacent lands
cannot then be taken into consideration. Where the owner
himself had purchased the land a few years earlier, the same
would from the basis to determine the market value. Paragraph
4 and 5 of the judgment read thus:
Basavraj G Patil 16/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
“4. The question, therefore, is whether the High Court has
committed any manifest error of law or had applied any wrong
principle of law in determining the compensation and whether its
failure to consider Ex.38 and 44 does make any difference. Having
given our consideration to the contention of Shri Mohta, we think
that the High Court had not committed any manifest error of law
or omitted to apply any correct principle of law. It is seen that if
there is evidence or admission on behalf of the claimants as to the
market value commanded by the acquired land itself, the need to
travel beyond the boundary of the acquired land is obviated. The
head of take into consideration the value of the lands adjacent to
the acquired land or near about the area which possessed same
potentiality to work out the prices fetched therein for determination
of market value of the acquired land would arise only when there is
no evidence of the value of the acquired land. In a case where
evidence of the value of the acquired land itself is available on
record, it is unnecessary to travel beyond that evidence and consider
the market value prevailing in the adjacent lands. As stated earlier,
though Ex.38 and 44 might command different market value to the
land situated in approved lay outs, since the appellant himself had
purchased the self same acquired lands in 1957 at Rs. 10,000/ for
the entire 20 acres of land, the High Court was right in its view to
consider the very same evidence to determine the compensation to
the acquired land. On the assessment of the increase in the value by
10 times, the High Court had accepted that assessment of the
appellant himself as PW9 and upheld the award of the Land
Acquisition Collector since it reflects the same price as granted in
the award under Section 11.”
“5. It is seen that the Reference Court blissfully overlooked the
admission of the owner on the surmise that it is an estimate made
by the claimant and the evidence of the sale deeds under ex.38 and
44 being prevailing prices, it acted thereon and determined the
compensation. The approach of the Reference Court is clearly illegal
and that of the High Court is quite correct and it was the only way
in which the market value could be determined on the face of the
evidence on record. The Reference Court committed manifest error
in determining the compensation on the basis of sq. ft. When lands
Basavraj G Patil 17/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
of an extent of 20 acres are offered for sale in an open market, no
willing and prudent purchaser would come forward to purchase
that vast extent of land on sq. ft. basis. Therefore, the Reference
Court has to consider the valuation sitting on the arm chair of a
willing prudent hypothetical vendee and to put a question to itself
whether in given circumstances, he would agree to purchase the
land on sq. ft. basis. No feats of imagination is necessary to reach
the conclusion. The answer is obviously no. This aspect of the
matter was totally ignored by the Reference Court and mechanically
accepted the two sale deeds to enhance the compensation at a value
of nearly Rs.35,000/ per acre. In State of M.P. vs. Santabai & Ors.,
(C.A. No.2844/34) and Salgoankar vs. Union of India (C.A.
No.3800/89) decided on 11.1.1990), this Court had accepted the
principle that when the owner himself has purchased the land
under acquisition, the consideration mentioned in the sale deed
would form the basis to determine the market value. Though the
High Court has relied on the sale deeds under Ex.65 and 66
relating to the lands in Nityanand Nagar Colony, it is also
necessary to go into that aspect of the matter in the view we have
stated above.”
ii) This court in the matter of Gleitleger (India) Pvt. Ltd.
Bombay Vs. Special Land Acquisition Officer, Thane 1979
Mh.L.J. 494 held that at the time of deciding the market value of
the acquired land u/s.23 of the said Act the recent sale of the
property in question itself is best evidence if there is no
appreciable rise or fall since then and nothing done in interval to
raise value. Paragraph 25 thereof reads thus:
“25. The learned Government Pleader referred to (Gulam Hussein
Ahmed Somaji and Others Vs. Land Acquisition Officer, South
Salsettle Bandra AIR 1928 P.C. 305, K. P. Frenchman Vs. The
Assistant Collector Haveli 24 BLR 782, N. C. John's Trust Alleopay
Vs. State of Kerala and Others AIR 1958, Ker. 166. An unreported
decision of this Court in F.A. No.655 of 1964, decided on 29.4
1976, to which my brother Vaidya J. was a party) to show that in
any event the claimants cannot receive more than what they had
Basavraj G Patil 18/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
paid for the acquired lands. It is not necessary to refer to these
authorities as statement of law is lucidly pronounced by Their
Lordsh of the Supreme Court in the Dollar Company, Madras v.
Collector of Madra wherein it is said;
"An actual transaction with respect to the specific land of
recent date is a guidebook that Courts may not neglect when
called upon to fix the precise compensation. The best
evidence of the value of property is the sale of the very
property to which the claimant is a party. If the sale is of
recent date, then all that need normally be proved is that the
sale was between a willing purchaser and a willing seller,
that there has not been any appreciable rise or fall since and
that nothing has been done on the
land during the short interval to raise its value. Price paid by
the owner recently represents an expression of market value,
a bona fide evidence of value, subject to such matters as (a)
the relationship of the parties: (b) the market condition and
the terms of sale and (c) the date of sale. It may not end the
enquiry but goes a long way to solve the problem."
“Applying these principles to the case before us it is true that the
instance of sale of November 1964 was of more recent time in view
of the acquisition of the land in April 1965 and therefore it would
have gone a long way to assist us in fixing the fair compensation.
For the reasons indicated before we are unable to place reliance on
these transactions. Therefore the claimants are not entitled to be
paid at the rate of Rs. 5 per square yard.”
iii) The Apex Court in the matter of Valliyammal and Anr. Vs.
Special Tahsildar (Land Acquisition) and Anr. 2011 8 SCC 91
held that if the acquired land is situated in the close vicinity of
the residential colonies, educational institutes, hospitals etc. and
rd
at a junction of two important roads then only 1/3 deductions
to be done towards the development charges and not 40% as
applied by the court in that case. Paragraph 21 reads thus;
Basavraj G Patil 19/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
“21. The first error committed by the High Court relates to
deduction of 40% towards development charges. While doing so,
the High Court ignored its own finding that the acquired land was
situated in the vicinity of the residential colonies developed by the
Board and other establishments as also the fact that the
respondents had not produced any evidence to show that they will
have to start the development work from scratch. Therefore, the
High Court could have, at best, applied 1/3rd deduction towards
development cost.”
iv) The Apex Court in the matter of Bhupal Singh & Ors. Vs.
State of Haryana (2015) 5 SCC 801 held that at the time of
deciding market value of the acquired land the prevailing rate of
adjacent similarly situated lands may be permitted. The Apex
court, further held that the future potentiality is required to be
considered at the time of fixing the market value. Paragraph 27
thereof reads thus:
“27. As rightly argued by learned counsel for the respondent, the
fair market value of the acquired land is required to be determined
under Section 23 of the Act on the basis of the market rate of the
adjacent lands similarly situated to the acquired lands prevailing
on the date of acquisition or/and prior to acquisition but not
subsequent to the date of acquisition. In appropriate cases, addition
of 10% per annum escalation in the prices specified in the sale
deeds (if filed and relied on) in relation to adjacent similarly
situated lands for fixing the market value of the acquired land may
be permitted. Such is, however, not the case in hand. Here is the
case where firstly, no sale deeds were filed by the appellants to
prove the fair market value of the acquired land and secondly, what
they now want this Court to do is to take into consideration the
rate of those lands which were acquired ten years after the date of
acquisition in question and then reduce the value of such land by
10% every year so as to determine the fair market value of the
acquired land in question. In our view, such procedure for
determination is not provided in the Act.”
Basavraj G Patil 20/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
25. In the case in hand, the Special Land Acquisition Officer issued
Notification u/s.4 of the said Act on 30.08.1982 for acquiring Appellant
claimant's land for Bus Station and Depot. Initially, it was 5H 20R.
Subsequently it was decided to acquire only 4H 98.5R equivalent to
49850 sq.mtr. from Sy.No.102 H.No.A/1 of village Boisar, Tq. Palghar,
Dist. Thane.
26. It is to be noted that though the claimant as well as the
Respondent placed on record several sale instances, valuation report
and evidence, for fixing market value, admittedly in the present
proceedings, the claimant agreed to purcahse the suit land from Smt.
Homai Kaikhushroo Irani alias (Tafti) prior to 1980. There was dispute
between the claimant and owner of land. Hence, the claimant filed
Suit No.2023/1981 on the original side of this court for declaration
that they have valid and subsisting agreement between the parties and
they are entitled for specific performance of the agreement of sale.
That suit was filed in the year 1981 which was before issuing
Notification u/s.4 of the said Act which is dated 30.08.1982. That suit
was settled between the parties by filing Consent Terms dated
23.12.1981. As per the said Consent Terms, the claimant agreed to
purchase the acquired land to the extent of 41986 sq.mtr. for sum of
Rs.18 lakh i.e. @ Rs.42.87 per sq.mtr. Thereafter they executed the
sale deed dated 21.12.1981 from same survey No.102 for remaining
land admeasuring 11660 for Rs.2 lacs @ Rs.17.15 per sq.mtr. Both
these sale instances are in respect of the acquired land itself.
27. As soon as the claimants agreed to purchase those lands they
Basavraj G Patil 21/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
made an Application for N.A. Permission and obtained the same.
Thereafter the complainant filed plans for development. Before issuing
Notification u/s.4 of the said Act, he started development with consent
of the owner. Therefore, he made a representation to the Government
for releasing certain portion of the land which he had already
developed and that was considered by the Government. Hence, for
fixing the market value of the acquired land instead of relying on the
valuation report and/or other sale instances the best sale instance is of
Exhibit 84 and 86 itself. In support of this we can safely rely on the
judgment of the Apex Court in the matter of Shakuntalabai (supra)
and of this court in the matter of Gleitleger (India) Pvt. Ltd. (supra).
28. Now the question remains at what rate the claimants are entitled
to compensation in respect of the acquired land. It is to be noted that
the Special Land Acquisition Officer as well as the Reference Court has
decided the market value on the basis of the belting system. In fact in
the present proceedings, the acquiring body has acquired the land for
bus station and depot. Therefore, there is no question of deciding the
market value on the basis of the belting system.
29. In the present proceedings the land was acquired by the
Respondent Corporation for bus stand and depot. That means
maximum land will remain open. To that effect the learned counsel for
the claimant, during the course of arguments placed on record some
recent photographs. Those photographs show that as on today less
than 25% land is in use of the Respondent Corporation. Therefore, the
question is whether the market value can be fixed on the basis of
belting system or not. It is to be noted that the Apex Court in the
Basavraj G Patil 22/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
matter of Land Acquisition Officer Revenue Divisional officer, Chittor
Vs. L. Kamalamma (Smt) Dead by Lrs. and Ors. (1998) 2 SCC 385
held that when a land is acquired which has the potentiality of being
developed into an urban land, merely because some portion of it abuts
the main road, higher rate of compensation should be paid while in
respect of the lands on the interior side it should be at lower rate may
not stand to reason because when sites are formed those abutting the
main road may have its advantage as well as disadvantages. Paragraph
7 thereof reads thus:
“7. The argument advanced by Shri Nageswara Rao that the
classification by the Land Acquisition Officer was in order and
ought not to have been interfered with by the reference court or the
High Court does not appeal to us. When a land is acquired which
has the potentiality of being developed into an urban land, merely
because some portion of it abuts the main road, higher rate of
compensation should be paid while in respect of the lands on the
interior side it should be at lower rate may not stand to reason
because when sites are formed those abutting the main road may
have its advantages as well as disadvantages. Many a discerning
customer may prefer to stay in the interior and far away from the
main road and may be willing to pay a reasonably higher price for
that site. One cannot rely on the mere possibility so as to indulge
in a meticulous exercise of classification of the land as was done by
the Land Acquisition Officer when the entire land was acquired in
one block and therefore classification of the same into different
categories does not stand to reason.”
30. Similarly, the Apex Court in the matter of Trishala Jain and Anr.
Vs. State of Uttaranchal and Anr. (2011) 6 SCC 47 held that belting
system should not be adopted at the time of fixing market value if the
entire acquired land was intended to be used for the same purpose.
Basavraj G Patil 23/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
31. The Apex Court in the matter of Ashrafi and Ors. Vs. State of
Haryana and Ors. (2013) 5 SCC 527 held that land having substantial
potentiality for development of residential and commercial complexes
should not be valued on the basis of the belting system. In the case in
hand, the claimants had submitted their plans before the acquisition
for development of entire property for residential and commercial
activities. Moreover, even the Land Acquisition Officer in his award has
specifically recorded that the entire land is near the developed area.
Considering these facts and the law declared by the Apex Court, we are
of the opinion that the market value fixed by the Land Acquisition
Officer as well as the Reference Court on the basis of the belting system
is not correct.
32. It is to be noted that the claimant purchased the remaining land
admeasuring 11660 sq.mtr. from Sy.No.102 H 1/2 (P) by Article of
Agreement dated 24.12.1981 (Exhibit 84) from Smt. Homai
Kaikhushroo Irani alias Tafti @ Rs.17.50 sq.mtr. because of terms and
conditions as stated in the Consent Terms and the order dated
25.08.1981 passed by the Additional Collector and Dy. Director of
Resettlement. Paragraph 3 of the Consent Terms reads thus:
“3. The Plaintiffs as the present Trustees of A. K. Gosalia Trust
for themselves and the Trustees for the time being of the said Trust
holding office as such Trustees and their successors and assigns
hereby covenant with the defendant that they shall as mentioned in
the said order dated August 25, 1981 at all times hereafter keep a
strip of land leading from the Boisar Tarapore Road and shown in
yellow colour on the said plan hereto annexed to the remaining
portion of the land other than the suit land and belonging to the
Basavraj G Patil 24/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
defendant and admeasuring about 3 acres equivalent to 11660
square meters or thereabouts unbuilt upon and open to the sky as
an approach road which remaining portion admeasuring about
11660 square meters is shown surrounded by a Red coloured
boundary line on the said Plan hereto annexed and described in the
Second Schedule hereunder with full power to the Defendant her
servants and agents and her executors, administrators and
permitted assigns and successors to have free access over the said
strip of land at all times.”
33. The portion of the order dated 25.08.1981 passed by the
Additional Collector and Dy. Director of Resettlement reads thus:
“The Additional Collector and Deputy Director of Resettlement
(Land) Thane is hereby pleased to grant sale permission of land
admeasuring 10 acres and 10¼ Gunthas out of 13 acres and 10
th
1/4 Gunthas bearing Sy. No.102, Hissa No.1/2(P) of village
Boisar, Taluka Palghar, District Thane subject to the conditions that
the ;
(i) Vendor, i.e. Applicant, her purchaser or purchasers and the
purchasers assignees if any, shall given an access of 6 feet in width
as an approach road to the remaining land admeasuring about 3
th
acres left from the said Survey No. by virtue of the Order dated 8
May 1981 of the Government in Revenue and Forest Department.”
34. It is crystal clear from the said order that the Additional Collector
has allowed the owner to sell the property on certain terms and
conditions i.e. to give access of 6' in width as an approach road to the
remaining land admeasuring 3 Acre. Because of this condition, the
owner sold the remaining land admeasuring 11660 sq.mtr. to the
claimant @ Rs.17.15 per sq.mtr.
35. Considering the situation of the land as described by the Special
Land Acquisition Officer in award itself and also the valuation report
Basavraj G Patil 25/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
Exhibit 94, there is no dispute that the land is situated in the heart of
the city having all facilities. Same is abutting to road also. Hence,
considering the judgment of the Apex Court in the matter of
Bhupalsingh and others (supra) future potentiality can be considered
and for that purpose we can safely take into consideration 20%
increase per annum. Sale Deed Exhibit 86 is dated 21.12.1981 @
Rs.42.86 per sq.mtr. and the Notification u/s.4 of the said Act was
issued on 30.08.1982. Therefore, for eight months the increase comes
to Rs.5.40 per sq.mtr. Therefore, the market value of the acquired land
on the date of Notification u/s.4 of the said Act comes to Rs.48.26 per
sq.mtr. But considering the law laid down by the Apex Court in the
matter of Valliayammal & Anr. (supra) 1/3 is required to be deducted
rd
towards development charges. Hence by deducting 1/3 from 48.26
per sq.mtr. it comes to Rs.32.17 per sq.mtr. The Special Land
Acquisition Officer has awarded total compensation for the acquired
land Rs.8,81,250/ and Rs.56,795/ for the structure whereas the
Reference Court has awarded compensation of Rs10,57,500/. The
total compensation @ Rs.32.17 per sq.mtr. comes to Rs.16,03,674.50
(49850 sq.mtr. X Rs.32.17 per sq.mtr.)
36. The issue raised by the learned counsel for the claimant about
the interest u/s.34 of the said Act is not sustainable because in the
present proceedings the Special Land Acquisition Officer has taken
possession of the property after passing the award. The claimant has
not placed on record when the amount was deposited by the Land
Acquisition Officer and it was paid to them. For want of pleading
and/or evidence on record, there is no question of granting interest
u/s.34 of the said Act. Hence, the finding given by the trial court in
Basavraj G Patil 26/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::
This Order is modified/corrected by Speaking to Minutes Order dated 09/03/2018
21.13-fa
para 31 on this point does not warrant any interference.
37. Hence, the First Appeal is partly allowed as under:
a. The claimants are entitled to compensation in respect of
the acquired land admeasuring 49850 sq.mtr. @ Rs.32.17 per
sq.mtr. after deducting the amount already paid with all benefits
as per the amended provisions of the Land Acquisition Act, 1894
30% solatium 12% component and interest u/s.28.
b. The Respondent Nos.1, 2 and 3 jointly and severally pay
the additional amount of compensation to the claimant.
c. Decree be drawn up accordingly.
d. The First Appeal stands disposed of accordingly.
(SARANG V. KOTWAL, J.) ( K.K. TATED, J. )
Basavraj G Patil 27/27
::: Uploaded on - 01/03/2018 ::: Downloaded on - 31/03/2024 17:10:37 :::