Full Judgment Text
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2005:BHC-AS:17768-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE JURISDICTION
FIRST APPEAL NO.870 OF 1991
WITH
FIRST APPEAL NO.817 OF 1991
FIRST APPEAL NO.870 OF 1991 FIRST APPEAL NO.870 OF 1991 FIRST APPEAL NO.870 OF 1991
The State of Maharashtra, )
through the Special Land )
Acquisition Officer, Panvel. ).. Appellant
(Org.Opponent)
Vs.
1. Shri Ismile ABdul Gafur Patel,)
Since deceased through his )
legal heirs: )
1.a) Smt. Maimuna Ismail Patel, )
Wife, AGe 75 yrs., )
R/a.Taloja, Tal.Panvel, )
Dist : Raigad. )
1.b) Smt.Jubeda M.Shafi Patel, )
Daughter, Age 55 years, )
R/a.Panvelpada Mohalla, )
Dist.Raigad. )
1.c) Shri Ibrahim Ismail Patel, )
Son, Age 54 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.d) Shri Gulam Ahmed Ismail Patel,)
Son, Age 52 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.e) Smt.Saruma Nisar Kaji, )
Daughter, Age 51 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.f) Shri Gulam Mustafa Ismail Patel,)
Son, AGe 50 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
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1.g) Smt.Julekha Allimiya Patel, )
Daughter, Age 49 years, )
R/a. Kacchi Mohalla, )
Tal.Panvel, Dist. Raigad. )
1.h) Smt.Jaitun M.Hanif Mulla, )
Daughter, Age 48 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.i) Smt.Havabi Ismail Patel, )
Daughter, Age 45 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.j) Shri Gulam Murtaja Ismail Patel,)
Son, Age 42 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.k) Shri Abbas Ismail Patel, )
Son, Age 40 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.l) Shri Illias Ismail Patel, )
Son, Age 38 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.m) Shri Isaq Ismail Patel, )
Son, Age 35 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.n) Shri Mohammad Noor Ismail Patel,)
Son, AGe 32 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.o) Smt.Hakima Ismail Patel, )
Wife, since deceased, )
2. Shri Mahamad Yusuf Abdul )
Gafur Patel, )
3. Smt.Khatijabibi Javade )
Hajimiya Patel, )
Since deceased through her )
Legal Heirs:- )
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3.a) Smt.Mumtaj Begam Javade )
Mohamudmiya Kaji, )
Daughter, Age 60 years, )
R/a.Taloja Panchnand, )
Tal.Panvel, Dist. Raigad. )
3.b) Shri nasruddin Hajimiya Patel,)
Son,Age 58 years, )
R/a.Taloja Panchnand, )
Tal.Panvel, Dist. Raigad. )
3.c) Shri Shabbir Ahmed Hajimiya )
Patel, Son, Age 55 years, )
R/a.Taloja Panchnand, )
Tal. Panvel, Dist. Raigad. )
3.d) Smt.Jainabbibi Javeja A. )
Latif Patel, )
Daughter, Age 53 years, )
R/a.Patel Mohalla, )
Tal. Panvel, Dist. Raigad. )
3.e) Smt.Sugarbibi Javaje Gulam )
Mahamad Kaji, )
Daughter, Age 51 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
3.f) Smt.Joharabibi Javaje Iqbal )
Kaji, Daughter, Age 47 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
4. Smt.Fatimabibi Mainuddin Patel,)
Since deceased through her )
Legal Heirs:- )
4.a) Smt.Rajiyabegam A. Hamid )
Subhedar, Daughter, )
Age 55 years, R/a. Taloja, )
Tal. Panvel, Dist. Raigad. )
4.b) Smt.Salyabibi Bashir Ahmed )
Divan, Daughter, Age 55 years,)
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
4.c) Shri Khalid Husen Mainuddin )
Patel, Son, Age 50 years, )
R/a.Taloja, Tal. Panvel, )
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Dist. Raigad. )
4.d) Smt.Maryambibi Shabbir Ahmed )
Patel, Daughter, Age 48 years,)
Tal.Taloja, Tal. Panvel, )
Dist. Raigad. )
4.e) Smt.Bilkisbegam Anwar Patel, )
Daughter, Age 45 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
4.f) Smt.Mohasinabibi Anwar Patel, )
Daughter, Age 40 years, )
R/a.Pada Mohalla, Panvel, )
Tal.Panvel, Dist. Raigad. )
4.g) Smt.Hajirabibi Mainuddin Patel,)
Daughter, Age 35 years, )
R/a.Tajoja, Tal. Panvel, )
Dist. Raigad. )
5. Smt.Marayambibi Hajimiya Patel,)
6. Smt.Aishabibi Ibrahim Patel, )
7. Smt.Najirabibi Sidhikmiya Patel,)
8. Shri Abdulrajak Isufmiya Patel,)
9. Shri Mahamadshafi Yusufmiya )
Patel, since deceased through )
her Legal Heirs:- )
9.a) Smt.Ruksana M.Shafi Patel, )
Wife, Age 48 years, )
R/a.Taloja Panchnand, )
Tal.Panvel, Dist. Raigad. )
9.b) Miss. Juveriya M.Shafi Patel, )
Daughter, AGe 15 years, )
R/a.Taloja Panchnand, )
Tal.Panvel, Dist. Raigad. )
9.c) Miss.Munira M.Shafi Patel, )
Daughter, Age 13 years, )
R/a.Taloja Panchnand, )
Tal. Panvel, Dist. Raigad. )
9.d) Shri Umer M.Shafi Patel, )
Son, Age 11 years, )
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R/a. Taloja Panchnand, )
Tal. Panvel, Dist. Raigad. )
10. Shri Abdulalij Isufmiya Patel,)
11. Smt.Hajirabibi Isufmiya Patel,)
12. Smt. Noorjaha Yusufmiya Patel,)
13. Smt.Fatima Isufmiya Patel. ).. Respondents.
(Org.Claimants)
--
Smt.G.P.Mulekar, AGP for the Appellant.
Shri R.S.Datar for the Respondents/claimants.
--
WITH WITH WITH
FIRST APPEAL NO.817 OF 1991 FIRST APPEAL NO.817 OF 1991 FIRST APPEAL NO.817 OF 1991
1. Shri Ismile Abdul Gafur Patel,)
Since deceased through his )
legal representatives: )
1/1. Maimuna Ismail Patel, )
1/2. Halima Ismail Patel, )
1/3. Jubeda M.Shafi Patel, )
R/o.Pada Mohalla, Panvel, )
Dist.Raigad. )
1/4. Saruma Nisar Kaji, )
1/5. Julekha Ali Mia Patel, )
r/o.Kachchi Mohalla, )
Taluka Panvel, District-Raigad)
1/6. jaitun M.Hanif Mulla, )
1/7. Havabi Ismail Patel, )
1/8. Ibrahim Ismail Patel, )
1/9. Gulam Ahmed Ismail Patel, )
1/10. Gulam Mustafa Ismail Patel, )
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1/11. Gulam Murtaja Ismail Patel, )
1/12. Abbas Ismail Patel, )
1/13. Ilyas Ismail Patel, )
1/14. Isak Ismail Patel, )
1/15. Mohd. Noor Ismail Patel, )
Nos.1/2, 1/4, 1/6 to 1/15 )
residing at Taloja, )
Tal. Panvel, Dist. Raigad. )
2. Mahamad Yusuf Abdul Gafur )
Patel, )
3. Khatijabibi Javade Hajimiya )
Patel, )
Since deceased through her )
Legal Heirs:- )
3/1. Nasruddin Hajimiya Patel, )
Age 52 years, )
3/2. Shabbir Ahmed Hajimiya Patel, )
Age 47 years, )
3/3. Smt.Mumtaj Begam Javaja )
Mohammad, )
Miya Kazi, Age 50 years, )
3/4. Jainab Bibi Javaje A. Latif )
Patel, Age 45 years, )
3/5. SugarEbibi Javaje Gulam )
Mahhammad Kazi, )
Age 40 years, )
3/6. Johara Bibi Javaje Iqbal Kazi,)
All residing at Taloja, )
Panvel, Dist.-Raigad. )
4. Fatimabibi Mainuddin Patel, )
Since deceased through her )
Legal Heirs:- )
4(1) Khalid Hussain Maimuddin Patel,)
Age 38 years, )
4(2) Smt.Rajiya Begam A.Subedar, )
Age 47 years, )
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4(3) Smt.Balma Biti Bashir Ahmed )
Diwan, Age 40 years, )
4/4. Maryam Bibi Shabbir Ahmed Patel,)
4/5. Bilkis Begam Anwar Patel, )
Age 30 years, )
4/6. Mohasini Bibi Anwar Patel, )
Age 27 years, )
4/7. Hajira Bibi Mainuddin Patel, )
Age 22 years, )
All residing at Taloja, )
Panvel, Dist- Raigad. )
5. Marayambibi Hajimiya Patel, )
6. Aishabibi Ibrahim Patel, )
7. Hajirabibi Sidhikmiya Patel, )
8. Abdulrajak Isufmiya Patel, )
9. Shri Mahamadshafi Yusufmiya )
Patel, since deceased through )
her Legal Heirs:- )
9/1. Rukshana Javaje M.Shafi Patel,)
Age 38 years, )
9/2. Umer M.Shafi Patel, )
Age 7 years, )
9/3. Juveriya M.Shafi Patel, )
Age 10 years, )
9/4. Munina M. Shafi Patel, )
Age 8 years. )
All residing at Taloja, )
Panvel, Dist. Raigad. )
10. Abdulalij Isufmiya Patel, )
11. Hajirabibi Isufmiya Patel, )
12. Noorjaha Yusufmiya Patel, )
13. Fatima Isufmiya Patel. ).. Appellants
(Org.Claimants)
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Vs.
The State of Maharashtra, )
through the Special Land )
Acquisition Officer, )
Metro Centre No.V, Panvel, )
District - Raigad. ).. Respondent.
(Org.Opponent)
--
Shri R.S.Datar for the Appellants.
Smt.G.P.Mulekar, AGP for the respondent.
--
CORAM : R.M.S.KHANDEPARKAR &
V.M.KANADE, JJ.
DATED : 29TH SEPTEMBER, 2005.
ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J )
1. Since both the appeals arise out of the common
judgment and award passed by the reference Court, they
were heard together and are being disposed of by this
common judgment.
2. The First Appeal No.870 of 1991 has been filed
by the State of Maharashtra whereas the First Appeal
No.817 of 1991 has been filed by the claimants.
3. The claimants’ land bearing Survey Nos.40,
44/1, 39/1, 37/4C, 7/2/7/A, 37/1/A, 36/8, 37/40/68/8,
37/18 and 36/7 situated in village Taloja, Taluka -
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Panvel, District of Thane, were sought to be acquired
by a notification issued under Section 4 of the Land
Acquisition Act 1894, hereinafter called as "the said
Act", and published in Government Gazette on 4th
February, 1970. The award in exercise of powers under
Section 11 of the said Act was declared on 6th
December 1985 thereby awarding compensation for the
land of the claimants at the rate of Rs.3/- and Rs.4/-
per sq.meter. Being dissatisfied, the claimants
preferred reference application under Section 18 of
the said Act claiming Rs.15/- p.s.m. which was
thereafter by way of amendment enhanced to Rs.25/- and
further to Rs.30/- p.s.m. The reference court after
recording the evidence which comprised of testimony of
the claimants and their valuer, awarded compensation
at the rate of Rs.15/- p.s.m. Being dissatisfied with
the said award, the State of Maharashtra has filed the
First Appeal No.870 of 1991 whereas the claimants have
filed the First Appeal No.817 of 1991 claiming
compensation at the rate of Rs.40/- p.s.m.
4. The learned advocate appearing on behalf of
the State of Maharashtra, while assailing the impugned
award submitted that the reference Court erred in
enhancing compensation at the rate of Rs.15/- p.s.m.
solely on the basis of the testimony of the claimants
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and the valuer ignoring the fact that the said
testimony nowhere assists the claimants to justify
enhancement of the compensation. She further
submitted that the reference court failed to take note
of the fact that the testimony of the valuer was on
the basis of his inspection carried out nearly 19
years after the publication of the notification under
Section 4 and that the sale instances, which were
sought to be relied upon by the valuer, were in
relation to strips of land or pieces of land situated
in the neighbourhood of the residents of the houses.
The reference Court did not consider the issue
regarding deductions to be made in case the land is to
be considered as potential and suitable for
construction activities. The valuation in relation to
a large piece of land cannot be on the meter basis but
it is to be on the hectare basis. In the absence of
cogent evidence being produced on record by the
claimants, the reference Court erred in granting
enhancement to the extent of Rs.15/- p.s.m. She
relied upon the decisions in the matter of Viluben Viluben Viluben
Jhalejar Contractor (Dead) by LRs. v. State of Jhalejar Contractor (Dead) by LRs. v. State of Jhalejar Contractor (Dead) by LRs. v. State of
Gujarat, Gujarat, reported in (2005)4 SCC 789, P.Rajan and Gujarat, P.Rajan and P.Rajan and
Another v. Kerala State Electricity Board and Another v. Kerala State Electricity Board and Another v. Kerala State Electricity Board and
Another, Another, reported in (1997) 9 SCC 330, Kasturi & Ors. Another, Kasturi & Ors. Kasturi & Ors.
v. State of Haryana, v. State of Haryana, reported in (2003)1 SCC 354, v. State of Haryana,
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Administrator General of West Bengal v. Collector, Administrator General of West Bengal v. Collector, Administrator General of West Bengal v. Collector,
Varanasi, Varanasi, reported in AIR 1988 SC 943, Ratan Lal Gupta Varanasi, Ratan Lal Gupta Ratan Lal Gupta
& Ors. v. Union of India, & Ors. v. Union of India, reported in (1996)7 SCC 3, & Ors. v. Union of India,
and in the matter of Special Land Acquisition Officer, Special Land Acquisition Officer, Special Land Acquisition Officer,
Bangalore v. V.T.Velu & Ors., Bangalore v. V.T.Velu & Ors., reported in (1996) 2 Bangalore v. V.T.Velu & Ors.,
SCC 538.
5. On the other hand, the learned Advocate for
the claimants while assailing the impugned award
submitted that the reference Court erred in taking
note of the fact that the evidence produced on record
clearly justified the enhancement of compensation for
more than Rs.30/- p.s.m. He further submitted that
the testimony of the valuer in support of the claim of
the claimants for enhancement of compensation has gone
unchallenged and it clearly established the
justification for enhancement of compensation at least
to the tune of Rs.40/- p.s.m. This Court had occasion
to deal with the acquisition proceedings in different
cases of land acquisition in respect of five different
villages in the district of Thane and particularly in
Taluka of Panvel. The judgment in that regard was
delivered on 16th March, 2000 in different appeals
arising in those cases and considering the valuation
done in the earlier decision in First Appeal No.875 of
1986 in respect of the acquired land in the village
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Taloja and considering the location of the different
pieces of land in comparison with the location of
Mumbai-Pune National Highway as well as Thane-Pune
Highway, had awarded compensation in the range of
Rs.14/- to Rs.25/- p.s.m. Considering the same,
certainly the compensation awarded by the reference
Court at the rate of Rs.15/- is to be considered at a
very lower rate and needs to be enhanced at least to
the extent to Rs.25/- p.s.m., if not, as claimed by
the claimants. He has placed reliance in the said
decision dated 16th March, 2000 delivered by the
Division Bench of this Court in First Appeal No.382 of
1984 and various other first appeals. Relying upon
the decision of the Apex Court in the matter of Bhim Bhim Bhim
Singh & Ors. v. State of Haryana & Anr., reported in
Singh & Ors. v. State of Haryana & Anr., Singh & Ors. v. State of Haryana & Anr.,
2003 SC 4382, he has submitted that such reliance on
the decision already given by this Court in different
matter relating to the land in the same village is
relevant for the purpose of decision regarding market
value of the land in question. Drawing attention to
the decision in Tanaji Abasaheb Pawar & Ors. etc. v. Tanaji Abasaheb Pawar & Ors. etc. v. Tanaji Abasaheb Pawar & Ors. etc. v.
State of Maharashtra & Anr., State of Maharashtra & Anr., reported in (2005)1 All State of Maharashtra & Anr.,
India Land Acquisition & Compensation Cases 332, the
learned advocate submitted that bearing in mind the
scheme under the said Act merely because the valuer
had visited the land nearly 19 years after the date of
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issuance of the notification under Section 4, that by
itself cannot be considered to be sufficient to
discard the testimony of such valuer as it cannot be
presumed that every land owner had knowledge about the
fact that he had to establish market value with the
help of the expert valuer. Shri Kulkarni, who was
examined as expert valuer, had been the Valuer in
various other cases in the locality and the judicial
notice of the said fact should be taken and that
itself should be considered to be sufficient to give
due credence to his testimony.
6. Plain reading of the impugned award discloses
that the reference Court, while heavily relying upon
the testimony of the valuer Shri Kulkarni and on
consideration of the location of the land in question
and its situation based on the evidence led by the
claimants, has held that the market value of the
acquired land to be Rs.15/- p.s.m. as on 3rd
February, 1970. The impugned award nowhere discloses
any analysis of the testimony of the valuer and it
merely proceeds on the basis that the testimony of the
valuer has not been contradicted or disproved either
by way of cross-examination or examination-in-chief of
any efficient valuer by the Government. In fact,
failure in that regard on the part of the Government
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has been considered as justification to rely upon the
testimony of the valuer, who had been examined on
behalf of the claimants, without any analysis of such
testimony and that too without any effort on the part
of the reference Court to ascertain upto what extent,
the testimony of the valuer could justify the claim
for compensation even at the rate of Rs.15/- p.s.m.
The reference Court has nowhere referred to the issue
regarding comparability of the land in question with
the lands which were subject matter of the sale
instances which were sought to be relied upon by the
valuer or that the pieces of land which were subject
matter of the land under reference stated to have been
considered by the valuer. The reference Court has
also not considered the fact that the valuer had no
occasion to inspect the land in question in the year
when the notification under Section 4 was issued and
the fact that the land had been inspected by the
valuer only in the year 1989 whereas the notification
under Section 4 was issued in the year 1970.
Considering all these aspects, therefore, the judgment
having been delivered without the analysis of the
evidence on record in the manner it was required to be
analysed and the reference Court having proceeded on
mere assumptions and presumptions regarding
credibility of the testimony of the valuer without
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addressing itself to the relevant issues which were
required to be considered while dealing with the
matter pertaining to the market value of the acquired
land and in particular, bearing in mind the law laid
down by the Apex Court in The Special Land Acquisition The Special Land Acquisition The Special Land Acquisition
Officer, Bangalore, v. T.Adinarayan Setty, Officer, Bangalore, v. T.Adinarayan Setty, reported Officer, Bangalore, v. T.Adinarayan Setty,
in AIR 1959 SC 429, the impugned award cannot be
sustained.
7. The first point which arises for our
consideration is whether the valuation of the land
under acquisition can be simply on the basis of the
decision delivered by this Court in relation to
another land acquired in the same village ?
8. In Bhim Singh’s case (supra) Bhim Singh’s case (supra), the Apex Court Bhim Singh’s case (supra)
observed that in some of the judgments the High Court
had taken note of the fact that in respect of earlier
acquisitions some matters had come to the Apex Court
and the Apex Court had approved the rate fixed by the
High Court in those matters, and in that context, it
was held that :-
"It was rightly held that when this Court had
fixed rates in respect of earlier acquisitions
for the same purpose, it was better to adopt
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those rates with suitable increases than to
rely upon sale instance."
The decision is on the point that when the Apex Court
had approved certain rates for a particular area, the
same has to be taken as the basis rather than
referring to sale instances from another villages.
The decision nowhere lays down that the value so fixed
should be blindly applied to the subsequent
acquisitions of land. It specifically states that the
rates so fixed in respect of earlier acquisitions for
the same purpose, could be adopted as the basis for
fixing the rates with suitable variations to the
subsequent acquisition of land from the same village.
Bearing in mind the said decision, if one peruses the
decision of the Division Bench of our Court delivered
on 16th March, 2000 in First Appeal No.875 of 1985 and
others (unreported), undoubtedly, it is in relation to
various lands which were sought to be acquired by
issuance of notification under Section 4 in the year
1970 from the village Taloja and the Court preferred
to rely upon the earlier judgment of the Division
Bench in First Appeal No.382 of 1984 which was
delivered in March, 1987 and had a map and the
valuation report submitted on behalf of claimants
therein which was not disputed by the State, to
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justify enhancement on the basis of rates fixed in the
said Appeal No.382 of 1984.
9. The Apex Court in T.Adinarayan Setty’s case T.Adinarayan Setty’s case T.Adinarayan Setty’s case
(supra) (supra) had in clear term laid down the law as regards (supra)
the method to be adopted for assessment of
compensation in relation to the lands acquired under
the said Act. It was held therein that it is not
disputed that the function of the Court in awarding
compensation under the Act is to ascertain the market
value of the land as or the date of the notification
under S.4(1) and the valuation should be may on the
basis of (1) opinion of experts, (2) the price paid
within a reasonable time in bona fide transactions of
purchase of the lands acquired or the lands adjacent
to the lands acquired and possessing similar
advantages and (iii) a number of years purchase of the
actual or immediately prospective profits of the lands
acquired. The said decision has been reiterated by
the Apex Court in number of decisions delivered after
the decision of T.Adinarayan’s case, Besides, it has
been time and again clarified by the Apex Court that,
while relying upon any other material including the
decisions of the Court or sale instances, the issue
regarding comparability cannot be ignored. It is
absolutely necessary to ascertain whether the land
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which had been the subject matter of a decision of the
Court is comparable with the land which is a subject
matter of the valuation in the case before the Court.
10. The Apex Court in Viluben Jhalejar Viluben Jhalejar Viluben Jhalejar
Contractor’s case (supra) Contractor’s case (supra) had ruled that the market Contractor’s case (supra)
value is ordinarily the price the property that may be
fetched in the open market if sold by a willing seller
unaffected by the special needs of a particular
purchase. It was also observed that one of the
principles for determination of the amount of
compensation for acquisition of land would be the
willingness of an informed buyer to offer the price
therefor, and it is beyond any cavil that the price of
the land which a willing and informed buyer would
offer would be different in the cases where the owner
is in possession and enjoyment of the property and in
the cases where he is not. It was also held that
"where definite material is not forthcoming either in
the shape of sales of similar lands in the
neighbourhood at or about the date of notification
under Section 4(1) or otherwise, other sale instances
as well as other evidences have to be considered."
However, it was further ruled that "the amount of
compensation cannot be ascertained with mathematical
accuracy. A comparable instance has to be identified
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having regard to the proximity from time angle as well
as proximity from situation angle. For determining
the market value of the land under acquisition,
suitable adjustment has to be made having regard to
various positive and negative factors vis-a-vis the
land under acquisition by placing the same two in
juxtaposition." The Apex Court has identified the
positive factors to be, smallness of size; proximity
to a road; frontage on a road; nearness to developed
area; regular shape, level vis-a-vis land under
acquisition and special value for an owner of an
adjoining property to whom it may have some very
special advantage, while the negative factors have
been identified as largeness of area; situation in
the interior at a distance from the road; narrow
strip of land with very small frontage compared to
depth; lower level requiring the depressed portion to
be filled up; remoteness from developed locality;
and some special disadvantageous factors which would
deter a purchaser. The said ruling clearly holds that
the blind application of any earlier decision to the
facts of the case under consideration would be an
abuse of power by the Court in relation to the
evaluation of the market value for the purpose of
determination of compensation under the said Act. In
order to apply such decision, it is equally necessary
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to determine the issue of comparability of the land
which was subject matter of the earlier decision with
the land in question before the Court. In the absence
of such exercise being done, merely because in the
earlier case, certain rates were awarded for the land
even in the vicinity of the land which is the subject
matter of the decision before the Court, that itself
would not be a justification to ascertain the market
value of the land in question, at that rate, nor the
decision of the Apex Court in Bhim Singh’s case Bhim Singh’s case Bhim Singh’s case
(supra) (supra) lays down any law to the contrary. Being so, (supra)
merely because in the First Appeal No.875 of 1985, the
rates within the range of Rs.14/- to 25/- per sq.
meter were awarded for various pieces of land in the
village Taloja, that itself may not be the rates to be
applied to the land in question without deciding the
comparability between the land in question and the
pieces of land which were subject matter of the said
appeals. Undisputedly, there is no evidence led in
that regard before the Court. Mere reliance in the
decision in the First Appeal No.875 of 1985 and others
(unreported), therefore, will be of no help to the
claimants to justify enhancement of compensation or to
justify the enhancement granted by the Reference
Court.
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11. The next point which arises for our
consideration is whether the valuation could have been
on meter basis or ought to have been on the acre
basis. Undisputedly, the land which is acquired in
the case in hand admeasures 63490 sq.meters in area.
In other words, 6 hectares and 3490 sq.meters. or 15
acres, 34 ares and 90 sq.meters.
12. In Pitambar Hemlal Badgujar’s case (supra) Pitambar Hemlal Badgujar’s case (supra), it Pitambar Hemlal Badgujar’s case (supra)
was held therein that it is settled by a series of the
Apex Court’s judgments that determination of the
compensation in respect of the lands acquired on the
square foot basis is an obvious illegal principle
being adopted by the courts only to inflate the market
value and no reasonable prudent purchaser would be
willing to purchase the land on the square foot basis
when large extent of land is offered for sale and the
same rule will apply in the case of the land acquired
for public purpose. It was also observed that the
Courts are required to consider, sitting in the
armchair of the prudent purchaser acting in normal
conditions prevailing in the open market, whether,
when offered to purchase the land by a willing vendor,
he would purchase the same in an open market and the
Court on that touchstone should evaluate the market
value. The law on the point as to whether the
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- 22 -
evaluation of the market value in case of pieces of
land could be on the meter basis or it should be on
the acre basis, is therefore clearly laid down by the
Apex Court in Pitambar Hemlal Badgujar’s case (supra). Pitambar Hemlal Badgujar’s case (supra). Pitambar Hemlal Badgujar’s case (supra).
Similar was the decision in P. Rajan’s case (supra) P. Rajan’s case (supra) P. Rajan’s case (supra)
wherein it was held that when a large extent of land
is acquired, determination of compensation on the
basis of a cent, square yard or square foot is a wrong
principle and the principle of fixation on acreage
basis should be considered as the correct principle.
13. It is to be noted that the land which was
acquired in Pitambar’s Hemlal Badgujar’s case (supra) Pitambar’s Hemlal Badgujar’s case (supra) Pitambar’s Hemlal Badgujar’s case (supra)
was 2 acres of land covered in Survey No.339/B and 1
acre and 34 gunthas from different Survey No.339/A-2.
In P.Rajan’s case (supra) P.Rajan’s case (supra), the area which was acquired P.Rajan’s case (supra)
was 7 acres and 8 cents. Considering the said ruling
of the Apex Court, the area of 15 acres and above can,
by no stretch of imagination, be held to be a small
piece of land. It squarely falls within the
expression "large extent of land" or "large piece of
land". Being so, the learned advocate for the
Government is justified in contending that the
valuation should have been not on the basis of the
meter but on the basis of acre. Undisputedly, the
valuation by the land acquisition officer was on the
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hectare basis and for the purpose of claiming
enhancement of compensation, the claimants had shown
the same with arithmetical calculation that the
compensation offered by the Land Acquisition Officer
was at the rate of Rs.2/- and Rs.4/- per sq.meter.
Being so, the reference Court clearly erred in
ignoring the law laid down by the Apex Court in the
matter of ascertaining the market value of large
extent of land.
14. The next point which arises for consideration
is whether the sale instances which were sought to be
relied upon are of any assistance to the claimants to
justify the enhancement of compensation ? The learned
advocate appearing for the claimants has fairly
submitted that those sale instances refer to smaller
pieces of land. Considering the same and bearing in
mind the ruling by the Apex Court in Administrator Administrator Administrator
General of West Bengal v. Collector, Varanasi’s case General of West Bengal v. Collector, Varanasi’s case
General of West Bengal v. Collector, Varanasi’s case
(supra) (supra) as well as Ratan Lal Gupta’s case (supra), (supra) Ratan Lal Gupta’s case (supra), Ratan Lal Gupta’s case (supra),
those sale instances in relation to the smaller plot
of land could be of no help to determine the
compensation in relation to the large extent of land.
Besides, the testimony of the claimants as well as the
valuer nowhere discloses any evidence comparing the
nature and the location of the land in question with
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the pieces of land which were subject matter of those
sale instances. In other words, there is no evidence
to deal with the issue of comparability between the
land in question with the pieces of land which were
subject matter of those sale instances and on that
count also those sale instances are of no help to
determine the market value of the land in question.
15. The next point which arises for consideration
relates to the testimony of the valuer. Perusal of
the testimony of the valuer apparently discloses a
clear statement to the effect that he had inspected
the site on 4th May, 1989 to assess the market value
as on 4th February, 1970 i.e. the date of
notification. In other words, the land in question
was sought to be inspected nearly 19 years after the
date of issuance of notification. Obviously, the
valuer had no personal knowledge about the situation
in loco in the year in which the notification under
Section 4 was issued in relation to the land in
question. Undisputedly, the valuer had not disclosed
any documentary material regarding the situation in
loco in the said year, either in his testimony or in
his valuation report. His testimony regarding the
factual situation at the site in relation to the plot
in question in the year 1970 is purely hearsay
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- 25 -
evidence, which cannot be given any credibility.
16. As regards the sale instances and other
decisions which are stated to have been considered by
the valuer to ascertain market value, apart from the
claim that he had considered the comparability between
the land in question with the pieces of land which
were subject matter of those decisions and the sale
instances, no evidence regarding such actual
consideration of the issue of comparability has been
placed on record. Mere claim of consideration by the
valuer is different from the evidence regarding such
comparability between the land in question with the
pieces of land which were subject matter of the sale
instances and those decisions. Being so, we wonder
what evidentiary value can be attached to such a
testimony of the valuer. In the absence of cogent
material being disclosed by the valuer which could
have been the basis for arriving at a particular
figure to be the market value of the land, and bearing
in mind the decision of the Apex Court which leaves us
with no option than to hold the testimony of the
valuer to be without any credibility, it is to be held
that the testimony of the valuer is of no help to
ascertain the market value of the land in question.
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- 26 -
17. The learned advocate for the claimants however
has submitted that the testimony of the valuer has
gone unchallenged, and therefore, the same cannot be
totally discarded. In the land acquisition
proceedings, it is for the claimant to establish that
his claim regarding enhancement of compensation is
well justified and this has to be done by the claimant
by adducing cogent evidence in support of his claim
for enhancement. The burden in that regard
essentially lies upon the claimants. No doubt, the
normal rule is that in case of the burden of proof is
discharged by the party, the onus would shift upon the
opposite party. It is also a normal rule of evidence
that once a statement of fact is not challenged by the
opposite party, it can be deemed to have been
established. However, in the case of proceedings
under Land Acquisition Act, there is an exception to
this rule inasmuch as that mere weakness in the
defence by the State or failure on the part of the
Government advocate to cross-examine the claimants’
witnesses effectively, that by itself cannot be
sufficient to conclude about the establishment of the
facts alleged by the claimants and their witnesses in
the course of their testimony. Such facts which are
necessary to be established for discharging the burden
of proof regarding the claim for enhancement of
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- 27 -
compensation are to be proved with necessary materials
in support of such statement of fact. Any decision in
that regard, if required, one can safely rely upon the
one in the matter of P.Ram Reddy & Ors. v. Land Ram Reddy & Ors. v. Land Ram Reddy & Ors. v. Land
Acquisition Officer, Hyderabad Urban Development Acquisition Officer, Hyderabad Urban Development Acquisition Officer, Hyderabad Urban Development
Authority, Hyderabad & Ors., Authority, Hyderabad & Ors., reported in (1995)2 SCC Authority, Hyderabad & Ors.,
305, wherein the Apex Court, while reiterating its
earlier decision in Chaturbhuj Pande v. Collector Chaturbhuj Pande v. Collector Chaturbhuj Pande v. Collector
(AIR 1969 SC 255), and while answering the question as
to whether the statements of the witnesses in such
proceedings which are not subjected to
cross-examination or effective cross-examination or
that no contrary evidence is adduced, is the Court
obliged to accept such statements to be true in
determining the market value of the lands acquired,
held thus, "it is, no doubt true, that whenever oral
evidence is adduced by parties on certain matters in
controversy, it may become difficult for the court to
overlook such evidence, if it is not shown by
effective cross-examination of such witnesses who have
given such evidence or by adducing contra-evidence,
that the oral evidence was unreliable or the witnesses
themselves are not creditworthy. But, in land
acquisition references before civil courts, when
witnesses give oral evidence in support of the claims
of claimants for higher compensation, the ineffective
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- 28 -
cross-examination of such witnesses, is not an
uncommon feature if regard is had to the manner in
which claims for enhanced compensation in land
acquisition cases are defended in courts on behalf of
the State. Indeed, when a question arose before this
Court whether the court is bound to accept the
statements of witnesses only because they have not
been effectively cross-examined or evidence in
rebuttal has not been adduced, it was observed by this
Court in Chaturbhuj Pande v. Collector thus:-
It is true that the witnesses examined on
behalf of the appellants have not been
effectively cross-examined. It is also true
that the Collector had not adduced any
evidence in rebuttal; but that does not mean
that the court is bound to accept their
evidence. The Judges are not computers....
they are bound to call into aid their
experience of life and test the evidence on
the basis of probabilities."
Considering the decision of the Apex Court, and taking
into consideration the testimony of the valuer, as
stated above, therefore, it does not deserve any
credibility for the purpose of ascertaining the market
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- 29 -
value of the land in question.
18. Yet another issue which is sought to be raised
is regarding failure on the part of the reference
Court to consider the point regarding necessity of the
deduction being made while applying the price of
developed land to the land acquired in undeveloped
form. Undoubtedly, the decisions relied upon disclose
the necessity of consideration of the said aspect of
the matter. However, in the case in hand, it is not
necessary to deal with the said issue in the facts and
circumstances of the case.
19. Undoubtedly, the learned advocate appearing on
behalf of the claimants contended that the evidence on
record justifies the grant of compensation at the rate
of Rs.25/- and not at the rate of Rs.40/- as is asked
for by the claimants. However, as already stated
above, there is no cogent evidence produced by the
claimants in support of any such claim. Even there is
no cogent material on record to justify the claim for
enhancement of compensation at the rate of Rs.15/- per
sq.meter.
20. The last point which arises for our
consideration is what should be the just and
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- 30 -
appropriate compensation payable to the claimants. In
that regard, the claimants themselves have stated and
the records also disclose that the land in question is
situated at a place of walking distance from
Mumbai-Pune National Highway. The claimants claimed
that the distance between Taloja Railway Station and
the acquired land is about 7 minutes walking distance,
and 4 minutes walking distance to the Bombay Poona
Highway. The gaothan area of the village Taloja lies
at a distance of about 6 minutes walk from the said
land in question. The acquired land has a levelled
ground and since the year 1970, it has the water
facility. The electricity facility is also available
in the area. The land is clearly approachable by a
bullock cart road and the S.T.stop lies at a distance
of about 5 minutes walk from the plot in question.
Considering all these aspects, therefore, though the
land is an agricultural land, it has the potentiality
for construction activities therein and therefore the
same is having NA potentiality cannot be disputed.
Though, the testimony of the valuer is of no much
assistance for ascertaining the market value of the
land, certainly the description of factual situation
at the time of his inspection of the land in the year
1989 to the extent it disclosed different from the
situation which existed in the year 1970, can be of
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- 31 -
help to ascertain the market value of the land in the
year 1970. The report prepared by the valuer also
discloses certain facts which are clearly otherwise
borne out from the record. It is also a matter of
record that in land acquisition cases, relating to the
acquisition of the land by the side of national
highway in the year 1966, the compensation at the rate
of Rs.4.78 ps. per square meter was awarded.
Undoubtedly, the said compensation by itself cannot be
a basis for ascertaining the market value of the land
which was acquired in the year 1970. However, the
same can be taken into consideration to ascertain what
could be the market value in the year 1970 bearing in
mind the increase in the land prices in the locality.
To that extent, certainly, the decisions which are
sought to have been relied upon by the learned
Advocate for the claimants throw some light. Taking
into consideration all these materials, certainly the
market value of the land in question in the year 1970
could not be at the rate of Rs.3/- or Rs.4/- per
square meter. At the same time, as already observed
above, it cannot justify the market value at the rate
of Rs.15/- per square meter. Taking into
consideration the large extent of land and bearing in
mind the evidence on record and the decisions referred
above, in our considered opinion, the just and
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- 32 -
appropriate market value of the land in the year 1970
ought to have been calculated at Rs.32,000/- per acre
i.e. Rs.8/- per sq.meter. We therefore hold that the
market value of the land in question on the date of
issuance of the notification under Section 4 was at
Rs.32000/- per acre. The compensation payable to the
claimants ought to be calculated accordingly along
with the other statutory benefits available under the
said Act. The impugned judgment and award is to be
modified accordingly.
21. The First Appeal filed by the State therefore
partly succeeds and the impugned judgment and award
stands modified accordingly. The First Appeal filed
by the claimants is hereby dismissed. There shall be
no order as to costs.
22. In case, the amount has already been disbursed
in terms of the enhancement granted by the Reference
Court, the claimants shall refund the same in terms of
this judgment within a period of 12 weeks from today
along with the interest thereon at the rate of 6% per
annum, from the date of collection of amount till the
date of repayment.
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- 33 -
( R.M.S.KHANDEPARKAR, J )
( V.M.KANADE, J )
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2005:BHC-AS:17768-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE JURISDICTION
FIRST APPEAL NO.870 OF 1991
WITH
FIRST APPEAL NO.817 OF 1991
FIRST APPEAL NO.870 OF 1991 FIRST APPEAL NO.870 OF 1991 FIRST APPEAL NO.870 OF 1991
The State of Maharashtra, )
through the Special Land )
Acquisition Officer, Panvel. ).. Appellant
(Org.Opponent)
Vs.
1. Shri Ismile ABdul Gafur Patel,)
Since deceased through his )
legal heirs: )
1.a) Smt. Maimuna Ismail Patel, )
Wife, AGe 75 yrs., )
R/a.Taloja, Tal.Panvel, )
Dist : Raigad. )
1.b) Smt.Jubeda M.Shafi Patel, )
Daughter, Age 55 years, )
R/a.Panvelpada Mohalla, )
Dist.Raigad. )
1.c) Shri Ibrahim Ismail Patel, )
Son, Age 54 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.d) Shri Gulam Ahmed Ismail Patel,)
Son, Age 52 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.e) Smt.Saruma Nisar Kaji, )
Daughter, Age 51 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.f) Shri Gulam Mustafa Ismail Patel,)
Son, AGe 50 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
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- 2 -
1.g) Smt.Julekha Allimiya Patel, )
Daughter, Age 49 years, )
R/a. Kacchi Mohalla, )
Tal.Panvel, Dist. Raigad. )
1.h) Smt.Jaitun M.Hanif Mulla, )
Daughter, Age 48 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.i) Smt.Havabi Ismail Patel, )
Daughter, Age 45 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.j) Shri Gulam Murtaja Ismail Patel,)
Son, Age 42 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.k) Shri Abbas Ismail Patel, )
Son, Age 40 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.l) Shri Illias Ismail Patel, )
Son, Age 38 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.m) Shri Isaq Ismail Patel, )
Son, Age 35 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.n) Shri Mohammad Noor Ismail Patel,)
Son, AGe 32 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
1.o) Smt.Hakima Ismail Patel, )
Wife, since deceased, )
2. Shri Mahamad Yusuf Abdul )
Gafur Patel, )
3. Smt.Khatijabibi Javade )
Hajimiya Patel, )
Since deceased through her )
Legal Heirs:- )
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- 3 -
3.a) Smt.Mumtaj Begam Javade )
Mohamudmiya Kaji, )
Daughter, Age 60 years, )
R/a.Taloja Panchnand, )
Tal.Panvel, Dist. Raigad. )
3.b) Shri nasruddin Hajimiya Patel,)
Son,Age 58 years, )
R/a.Taloja Panchnand, )
Tal.Panvel, Dist. Raigad. )
3.c) Shri Shabbir Ahmed Hajimiya )
Patel, Son, Age 55 years, )
R/a.Taloja Panchnand, )
Tal. Panvel, Dist. Raigad. )
3.d) Smt.Jainabbibi Javeja A. )
Latif Patel, )
Daughter, Age 53 years, )
R/a.Patel Mohalla, )
Tal. Panvel, Dist. Raigad. )
3.e) Smt.Sugarbibi Javaje Gulam )
Mahamad Kaji, )
Daughter, Age 51 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
3.f) Smt.Joharabibi Javaje Iqbal )
Kaji, Daughter, Age 47 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
4. Smt.Fatimabibi Mainuddin Patel,)
Since deceased through her )
Legal Heirs:- )
4.a) Smt.Rajiyabegam A. Hamid )
Subhedar, Daughter, )
Age 55 years, R/a. Taloja, )
Tal. Panvel, Dist. Raigad. )
4.b) Smt.Salyabibi Bashir Ahmed )
Divan, Daughter, Age 55 years,)
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
4.c) Shri Khalid Husen Mainuddin )
Patel, Son, Age 50 years, )
R/a.Taloja, Tal. Panvel, )
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- 4 -
Dist. Raigad. )
4.d) Smt.Maryambibi Shabbir Ahmed )
Patel, Daughter, Age 48 years,)
Tal.Taloja, Tal. Panvel, )
Dist. Raigad. )
4.e) Smt.Bilkisbegam Anwar Patel, )
Daughter, Age 45 years, )
R/a.Taloja, Tal. Panvel, )
Dist. Raigad. )
4.f) Smt.Mohasinabibi Anwar Patel, )
Daughter, Age 40 years, )
R/a.Pada Mohalla, Panvel, )
Tal.Panvel, Dist. Raigad. )
4.g) Smt.Hajirabibi Mainuddin Patel,)
Daughter, Age 35 years, )
R/a.Tajoja, Tal. Panvel, )
Dist. Raigad. )
5. Smt.Marayambibi Hajimiya Patel,)
6. Smt.Aishabibi Ibrahim Patel, )
7. Smt.Najirabibi Sidhikmiya Patel,)
8. Shri Abdulrajak Isufmiya Patel,)
9. Shri Mahamadshafi Yusufmiya )
Patel, since deceased through )
her Legal Heirs:- )
9.a) Smt.Ruksana M.Shafi Patel, )
Wife, Age 48 years, )
R/a.Taloja Panchnand, )
Tal.Panvel, Dist. Raigad. )
9.b) Miss. Juveriya M.Shafi Patel, )
Daughter, AGe 15 years, )
R/a.Taloja Panchnand, )
Tal.Panvel, Dist. Raigad. )
9.c) Miss.Munira M.Shafi Patel, )
Daughter, Age 13 years, )
R/a.Taloja Panchnand, )
Tal. Panvel, Dist. Raigad. )
9.d) Shri Umer M.Shafi Patel, )
Son, Age 11 years, )
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- 5 -
R/a. Taloja Panchnand, )
Tal. Panvel, Dist. Raigad. )
10. Shri Abdulalij Isufmiya Patel,)
11. Smt.Hajirabibi Isufmiya Patel,)
12. Smt. Noorjaha Yusufmiya Patel,)
13. Smt.Fatima Isufmiya Patel. ).. Respondents.
(Org.Claimants)
--
Smt.G.P.Mulekar, AGP for the Appellant.
Shri R.S.Datar for the Respondents/claimants.
--
WITH WITH WITH
FIRST APPEAL NO.817 OF 1991 FIRST APPEAL NO.817 OF 1991 FIRST APPEAL NO.817 OF 1991
1. Shri Ismile Abdul Gafur Patel,)
Since deceased through his )
legal representatives: )
1/1. Maimuna Ismail Patel, )
1/2. Halima Ismail Patel, )
1/3. Jubeda M.Shafi Patel, )
R/o.Pada Mohalla, Panvel, )
Dist.Raigad. )
1/4. Saruma Nisar Kaji, )
1/5. Julekha Ali Mia Patel, )
r/o.Kachchi Mohalla, )
Taluka Panvel, District-Raigad)
1/6. jaitun M.Hanif Mulla, )
1/7. Havabi Ismail Patel, )
1/8. Ibrahim Ismail Patel, )
1/9. Gulam Ahmed Ismail Patel, )
1/10. Gulam Mustafa Ismail Patel, )
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- 6 -
1/11. Gulam Murtaja Ismail Patel, )
1/12. Abbas Ismail Patel, )
1/13. Ilyas Ismail Patel, )
1/14. Isak Ismail Patel, )
1/15. Mohd. Noor Ismail Patel, )
Nos.1/2, 1/4, 1/6 to 1/15 )
residing at Taloja, )
Tal. Panvel, Dist. Raigad. )
2. Mahamad Yusuf Abdul Gafur )
Patel, )
3. Khatijabibi Javade Hajimiya )
Patel, )
Since deceased through her )
Legal Heirs:- )
3/1. Nasruddin Hajimiya Patel, )
Age 52 years, )
3/2. Shabbir Ahmed Hajimiya Patel, )
Age 47 years, )
3/3. Smt.Mumtaj Begam Javaja )
Mohammad, )
Miya Kazi, Age 50 years, )
3/4. Jainab Bibi Javaje A. Latif )
Patel, Age 45 years, )
3/5. SugarEbibi Javaje Gulam )
Mahhammad Kazi, )
Age 40 years, )
3/6. Johara Bibi Javaje Iqbal Kazi,)
All residing at Taloja, )
Panvel, Dist.-Raigad. )
4. Fatimabibi Mainuddin Patel, )
Since deceased through her )
Legal Heirs:- )
4(1) Khalid Hussain Maimuddin Patel,)
Age 38 years, )
4(2) Smt.Rajiya Begam A.Subedar, )
Age 47 years, )
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4(3) Smt.Balma Biti Bashir Ahmed )
Diwan, Age 40 years, )
4/4. Maryam Bibi Shabbir Ahmed Patel,)
4/5. Bilkis Begam Anwar Patel, )
Age 30 years, )
4/6. Mohasini Bibi Anwar Patel, )
Age 27 years, )
4/7. Hajira Bibi Mainuddin Patel, )
Age 22 years, )
All residing at Taloja, )
Panvel, Dist- Raigad. )
5. Marayambibi Hajimiya Patel, )
6. Aishabibi Ibrahim Patel, )
7. Hajirabibi Sidhikmiya Patel, )
8. Abdulrajak Isufmiya Patel, )
9. Shri Mahamadshafi Yusufmiya )
Patel, since deceased through )
her Legal Heirs:- )
9/1. Rukshana Javaje M.Shafi Patel,)
Age 38 years, )
9/2. Umer M.Shafi Patel, )
Age 7 years, )
9/3. Juveriya M.Shafi Patel, )
Age 10 years, )
9/4. Munina M. Shafi Patel, )
Age 8 years. )
All residing at Taloja, )
Panvel, Dist. Raigad. )
10. Abdulalij Isufmiya Patel, )
11. Hajirabibi Isufmiya Patel, )
12. Noorjaha Yusufmiya Patel, )
13. Fatima Isufmiya Patel. ).. Appellants
(Org.Claimants)
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Vs.
The State of Maharashtra, )
through the Special Land )
Acquisition Officer, )
Metro Centre No.V, Panvel, )
District - Raigad. ).. Respondent.
(Org.Opponent)
--
Shri R.S.Datar for the Appellants.
Smt.G.P.Mulekar, AGP for the respondent.
--
CORAM : R.M.S.KHANDEPARKAR &
V.M.KANADE, JJ.
DATED : 29TH SEPTEMBER, 2005.
ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J )
1. Since both the appeals arise out of the common
judgment and award passed by the reference Court, they
were heard together and are being disposed of by this
common judgment.
2. The First Appeal No.870 of 1991 has been filed
by the State of Maharashtra whereas the First Appeal
No.817 of 1991 has been filed by the claimants.
3. The claimants’ land bearing Survey Nos.40,
44/1, 39/1, 37/4C, 7/2/7/A, 37/1/A, 36/8, 37/40/68/8,
37/18 and 36/7 situated in village Taloja, Taluka -
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Panvel, District of Thane, were sought to be acquired
by a notification issued under Section 4 of the Land
Acquisition Act 1894, hereinafter called as "the said
Act", and published in Government Gazette on 4th
February, 1970. The award in exercise of powers under
Section 11 of the said Act was declared on 6th
December 1985 thereby awarding compensation for the
land of the claimants at the rate of Rs.3/- and Rs.4/-
per sq.meter. Being dissatisfied, the claimants
preferred reference application under Section 18 of
the said Act claiming Rs.15/- p.s.m. which was
thereafter by way of amendment enhanced to Rs.25/- and
further to Rs.30/- p.s.m. The reference court after
recording the evidence which comprised of testimony of
the claimants and their valuer, awarded compensation
at the rate of Rs.15/- p.s.m. Being dissatisfied with
the said award, the State of Maharashtra has filed the
First Appeal No.870 of 1991 whereas the claimants have
filed the First Appeal No.817 of 1991 claiming
compensation at the rate of Rs.40/- p.s.m.
4. The learned advocate appearing on behalf of
the State of Maharashtra, while assailing the impugned
award submitted that the reference Court erred in
enhancing compensation at the rate of Rs.15/- p.s.m.
solely on the basis of the testimony of the claimants
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and the valuer ignoring the fact that the said
testimony nowhere assists the claimants to justify
enhancement of the compensation. She further
submitted that the reference court failed to take note
of the fact that the testimony of the valuer was on
the basis of his inspection carried out nearly 19
years after the publication of the notification under
Section 4 and that the sale instances, which were
sought to be relied upon by the valuer, were in
relation to strips of land or pieces of land situated
in the neighbourhood of the residents of the houses.
The reference Court did not consider the issue
regarding deductions to be made in case the land is to
be considered as potential and suitable for
construction activities. The valuation in relation to
a large piece of land cannot be on the meter basis but
it is to be on the hectare basis. In the absence of
cogent evidence being produced on record by the
claimants, the reference Court erred in granting
enhancement to the extent of Rs.15/- p.s.m. She
relied upon the decisions in the matter of Viluben Viluben Viluben
Jhalejar Contractor (Dead) by LRs. v. State of Jhalejar Contractor (Dead) by LRs. v. State of Jhalejar Contractor (Dead) by LRs. v. State of
Gujarat, Gujarat, reported in (2005)4 SCC 789, P.Rajan and Gujarat, P.Rajan and P.Rajan and
Another v. Kerala State Electricity Board and Another v. Kerala State Electricity Board and Another v. Kerala State Electricity Board and
Another, Another, reported in (1997) 9 SCC 330, Kasturi & Ors. Another, Kasturi & Ors. Kasturi & Ors.
v. State of Haryana, v. State of Haryana, reported in (2003)1 SCC 354, v. State of Haryana,
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Administrator General of West Bengal v. Collector, Administrator General of West Bengal v. Collector, Administrator General of West Bengal v. Collector,
Varanasi, Varanasi, reported in AIR 1988 SC 943, Ratan Lal Gupta Varanasi, Ratan Lal Gupta Ratan Lal Gupta
& Ors. v. Union of India, & Ors. v. Union of India, reported in (1996)7 SCC 3, & Ors. v. Union of India,
and in the matter of Special Land Acquisition Officer, Special Land Acquisition Officer, Special Land Acquisition Officer,
Bangalore v. V.T.Velu & Ors., Bangalore v. V.T.Velu & Ors., reported in (1996) 2 Bangalore v. V.T.Velu & Ors.,
SCC 538.
5. On the other hand, the learned Advocate for
the claimants while assailing the impugned award
submitted that the reference Court erred in taking
note of the fact that the evidence produced on record
clearly justified the enhancement of compensation for
more than Rs.30/- p.s.m. He further submitted that
the testimony of the valuer in support of the claim of
the claimants for enhancement of compensation has gone
unchallenged and it clearly established the
justification for enhancement of compensation at least
to the tune of Rs.40/- p.s.m. This Court had occasion
to deal with the acquisition proceedings in different
cases of land acquisition in respect of five different
villages in the district of Thane and particularly in
Taluka of Panvel. The judgment in that regard was
delivered on 16th March, 2000 in different appeals
arising in those cases and considering the valuation
done in the earlier decision in First Appeal No.875 of
1986 in respect of the acquired land in the village
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Taloja and considering the location of the different
pieces of land in comparison with the location of
Mumbai-Pune National Highway as well as Thane-Pune
Highway, had awarded compensation in the range of
Rs.14/- to Rs.25/- p.s.m. Considering the same,
certainly the compensation awarded by the reference
Court at the rate of Rs.15/- is to be considered at a
very lower rate and needs to be enhanced at least to
the extent to Rs.25/- p.s.m., if not, as claimed by
the claimants. He has placed reliance in the said
decision dated 16th March, 2000 delivered by the
Division Bench of this Court in First Appeal No.382 of
1984 and various other first appeals. Relying upon
the decision of the Apex Court in the matter of Bhim Bhim Bhim
Singh & Ors. v. State of Haryana & Anr., reported in
Singh & Ors. v. State of Haryana & Anr., Singh & Ors. v. State of Haryana & Anr.,
2003 SC 4382, he has submitted that such reliance on
the decision already given by this Court in different
matter relating to the land in the same village is
relevant for the purpose of decision regarding market
value of the land in question. Drawing attention to
the decision in Tanaji Abasaheb Pawar & Ors. etc. v. Tanaji Abasaheb Pawar & Ors. etc. v. Tanaji Abasaheb Pawar & Ors. etc. v.
State of Maharashtra & Anr., State of Maharashtra & Anr., reported in (2005)1 All State of Maharashtra & Anr.,
India Land Acquisition & Compensation Cases 332, the
learned advocate submitted that bearing in mind the
scheme under the said Act merely because the valuer
had visited the land nearly 19 years after the date of
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issuance of the notification under Section 4, that by
itself cannot be considered to be sufficient to
discard the testimony of such valuer as it cannot be
presumed that every land owner had knowledge about the
fact that he had to establish market value with the
help of the expert valuer. Shri Kulkarni, who was
examined as expert valuer, had been the Valuer in
various other cases in the locality and the judicial
notice of the said fact should be taken and that
itself should be considered to be sufficient to give
due credence to his testimony.
6. Plain reading of the impugned award discloses
that the reference Court, while heavily relying upon
the testimony of the valuer Shri Kulkarni and on
consideration of the location of the land in question
and its situation based on the evidence led by the
claimants, has held that the market value of the
acquired land to be Rs.15/- p.s.m. as on 3rd
February, 1970. The impugned award nowhere discloses
any analysis of the testimony of the valuer and it
merely proceeds on the basis that the testimony of the
valuer has not been contradicted or disproved either
by way of cross-examination or examination-in-chief of
any efficient valuer by the Government. In fact,
failure in that regard on the part of the Government
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has been considered as justification to rely upon the
testimony of the valuer, who had been examined on
behalf of the claimants, without any analysis of such
testimony and that too without any effort on the part
of the reference Court to ascertain upto what extent,
the testimony of the valuer could justify the claim
for compensation even at the rate of Rs.15/- p.s.m.
The reference Court has nowhere referred to the issue
regarding comparability of the land in question with
the lands which were subject matter of the sale
instances which were sought to be relied upon by the
valuer or that the pieces of land which were subject
matter of the land under reference stated to have been
considered by the valuer. The reference Court has
also not considered the fact that the valuer had no
occasion to inspect the land in question in the year
when the notification under Section 4 was issued and
the fact that the land had been inspected by the
valuer only in the year 1989 whereas the notification
under Section 4 was issued in the year 1970.
Considering all these aspects, therefore, the judgment
having been delivered without the analysis of the
evidence on record in the manner it was required to be
analysed and the reference Court having proceeded on
mere assumptions and presumptions regarding
credibility of the testimony of the valuer without
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addressing itself to the relevant issues which were
required to be considered while dealing with the
matter pertaining to the market value of the acquired
land and in particular, bearing in mind the law laid
down by the Apex Court in The Special Land Acquisition The Special Land Acquisition The Special Land Acquisition
Officer, Bangalore, v. T.Adinarayan Setty, Officer, Bangalore, v. T.Adinarayan Setty, reported Officer, Bangalore, v. T.Adinarayan Setty,
in AIR 1959 SC 429, the impugned award cannot be
sustained.
7. The first point which arises for our
consideration is whether the valuation of the land
under acquisition can be simply on the basis of the
decision delivered by this Court in relation to
another land acquired in the same village ?
8. In Bhim Singh’s case (supra) Bhim Singh’s case (supra), the Apex Court Bhim Singh’s case (supra)
observed that in some of the judgments the High Court
had taken note of the fact that in respect of earlier
acquisitions some matters had come to the Apex Court
and the Apex Court had approved the rate fixed by the
High Court in those matters, and in that context, it
was held that :-
"It was rightly held that when this Court had
fixed rates in respect of earlier acquisitions
for the same purpose, it was better to adopt
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those rates with suitable increases than to
rely upon sale instance."
The decision is on the point that when the Apex Court
had approved certain rates for a particular area, the
same has to be taken as the basis rather than
referring to sale instances from another villages.
The decision nowhere lays down that the value so fixed
should be blindly applied to the subsequent
acquisitions of land. It specifically states that the
rates so fixed in respect of earlier acquisitions for
the same purpose, could be adopted as the basis for
fixing the rates with suitable variations to the
subsequent acquisition of land from the same village.
Bearing in mind the said decision, if one peruses the
decision of the Division Bench of our Court delivered
on 16th March, 2000 in First Appeal No.875 of 1985 and
others (unreported), undoubtedly, it is in relation to
various lands which were sought to be acquired by
issuance of notification under Section 4 in the year
1970 from the village Taloja and the Court preferred
to rely upon the earlier judgment of the Division
Bench in First Appeal No.382 of 1984 which was
delivered in March, 1987 and had a map and the
valuation report submitted on behalf of claimants
therein which was not disputed by the State, to
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justify enhancement on the basis of rates fixed in the
said Appeal No.382 of 1984.
9. The Apex Court in T.Adinarayan Setty’s case T.Adinarayan Setty’s case T.Adinarayan Setty’s case
(supra) (supra) had in clear term laid down the law as regards (supra)
the method to be adopted for assessment of
compensation in relation to the lands acquired under
the said Act. It was held therein that it is not
disputed that the function of the Court in awarding
compensation under the Act is to ascertain the market
value of the land as or the date of the notification
under S.4(1) and the valuation should be may on the
basis of (1) opinion of experts, (2) the price paid
within a reasonable time in bona fide transactions of
purchase of the lands acquired or the lands adjacent
to the lands acquired and possessing similar
advantages and (iii) a number of years purchase of the
actual or immediately prospective profits of the lands
acquired. The said decision has been reiterated by
the Apex Court in number of decisions delivered after
the decision of T.Adinarayan’s case, Besides, it has
been time and again clarified by the Apex Court that,
while relying upon any other material including the
decisions of the Court or sale instances, the issue
regarding comparability cannot be ignored. It is
absolutely necessary to ascertain whether the land
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which had been the subject matter of a decision of the
Court is comparable with the land which is a subject
matter of the valuation in the case before the Court.
10. The Apex Court in Viluben Jhalejar Viluben Jhalejar Viluben Jhalejar
Contractor’s case (supra) Contractor’s case (supra) had ruled that the market Contractor’s case (supra)
value is ordinarily the price the property that may be
fetched in the open market if sold by a willing seller
unaffected by the special needs of a particular
purchase. It was also observed that one of the
principles for determination of the amount of
compensation for acquisition of land would be the
willingness of an informed buyer to offer the price
therefor, and it is beyond any cavil that the price of
the land which a willing and informed buyer would
offer would be different in the cases where the owner
is in possession and enjoyment of the property and in
the cases where he is not. It was also held that
"where definite material is not forthcoming either in
the shape of sales of similar lands in the
neighbourhood at or about the date of notification
under Section 4(1) or otherwise, other sale instances
as well as other evidences have to be considered."
However, it was further ruled that "the amount of
compensation cannot be ascertained with mathematical
accuracy. A comparable instance has to be identified
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having regard to the proximity from time angle as well
as proximity from situation angle. For determining
the market value of the land under acquisition,
suitable adjustment has to be made having regard to
various positive and negative factors vis-a-vis the
land under acquisition by placing the same two in
juxtaposition." The Apex Court has identified the
positive factors to be, smallness of size; proximity
to a road; frontage on a road; nearness to developed
area; regular shape, level vis-a-vis land under
acquisition and special value for an owner of an
adjoining property to whom it may have some very
special advantage, while the negative factors have
been identified as largeness of area; situation in
the interior at a distance from the road; narrow
strip of land with very small frontage compared to
depth; lower level requiring the depressed portion to
be filled up; remoteness from developed locality;
and some special disadvantageous factors which would
deter a purchaser. The said ruling clearly holds that
the blind application of any earlier decision to the
facts of the case under consideration would be an
abuse of power by the Court in relation to the
evaluation of the market value for the purpose of
determination of compensation under the said Act. In
order to apply such decision, it is equally necessary
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to determine the issue of comparability of the land
which was subject matter of the earlier decision with
the land in question before the Court. In the absence
of such exercise being done, merely because in the
earlier case, certain rates were awarded for the land
even in the vicinity of the land which is the subject
matter of the decision before the Court, that itself
would not be a justification to ascertain the market
value of the land in question, at that rate, nor the
decision of the Apex Court in Bhim Singh’s case Bhim Singh’s case Bhim Singh’s case
(supra) (supra) lays down any law to the contrary. Being so, (supra)
merely because in the First Appeal No.875 of 1985, the
rates within the range of Rs.14/- to 25/- per sq.
meter were awarded for various pieces of land in the
village Taloja, that itself may not be the rates to be
applied to the land in question without deciding the
comparability between the land in question and the
pieces of land which were subject matter of the said
appeals. Undisputedly, there is no evidence led in
that regard before the Court. Mere reliance in the
decision in the First Appeal No.875 of 1985 and others
(unreported), therefore, will be of no help to the
claimants to justify enhancement of compensation or to
justify the enhancement granted by the Reference
Court.
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11. The next point which arises for our
consideration is whether the valuation could have been
on meter basis or ought to have been on the acre
basis. Undisputedly, the land which is acquired in
the case in hand admeasures 63490 sq.meters in area.
In other words, 6 hectares and 3490 sq.meters. or 15
acres, 34 ares and 90 sq.meters.
12. In Pitambar Hemlal Badgujar’s case (supra) Pitambar Hemlal Badgujar’s case (supra), it Pitambar Hemlal Badgujar’s case (supra)
was held therein that it is settled by a series of the
Apex Court’s judgments that determination of the
compensation in respect of the lands acquired on the
square foot basis is an obvious illegal principle
being adopted by the courts only to inflate the market
value and no reasonable prudent purchaser would be
willing to purchase the land on the square foot basis
when large extent of land is offered for sale and the
same rule will apply in the case of the land acquired
for public purpose. It was also observed that the
Courts are required to consider, sitting in the
armchair of the prudent purchaser acting in normal
conditions prevailing in the open market, whether,
when offered to purchase the land by a willing vendor,
he would purchase the same in an open market and the
Court on that touchstone should evaluate the market
value. The law on the point as to whether the
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evaluation of the market value in case of pieces of
land could be on the meter basis or it should be on
the acre basis, is therefore clearly laid down by the
Apex Court in Pitambar Hemlal Badgujar’s case (supra). Pitambar Hemlal Badgujar’s case (supra). Pitambar Hemlal Badgujar’s case (supra).
Similar was the decision in P. Rajan’s case (supra) P. Rajan’s case (supra) P. Rajan’s case (supra)
wherein it was held that when a large extent of land
is acquired, determination of compensation on the
basis of a cent, square yard or square foot is a wrong
principle and the principle of fixation on acreage
basis should be considered as the correct principle.
13. It is to be noted that the land which was
acquired in Pitambar’s Hemlal Badgujar’s case (supra) Pitambar’s Hemlal Badgujar’s case (supra) Pitambar’s Hemlal Badgujar’s case (supra)
was 2 acres of land covered in Survey No.339/B and 1
acre and 34 gunthas from different Survey No.339/A-2.
In P.Rajan’s case (supra) P.Rajan’s case (supra), the area which was acquired P.Rajan’s case (supra)
was 7 acres and 8 cents. Considering the said ruling
of the Apex Court, the area of 15 acres and above can,
by no stretch of imagination, be held to be a small
piece of land. It squarely falls within the
expression "large extent of land" or "large piece of
land". Being so, the learned advocate for the
Government is justified in contending that the
valuation should have been not on the basis of the
meter but on the basis of acre. Undisputedly, the
valuation by the land acquisition officer was on the
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hectare basis and for the purpose of claiming
enhancement of compensation, the claimants had shown
the same with arithmetical calculation that the
compensation offered by the Land Acquisition Officer
was at the rate of Rs.2/- and Rs.4/- per sq.meter.
Being so, the reference Court clearly erred in
ignoring the law laid down by the Apex Court in the
matter of ascertaining the market value of large
extent of land.
14. The next point which arises for consideration
is whether the sale instances which were sought to be
relied upon are of any assistance to the claimants to
justify the enhancement of compensation ? The learned
advocate appearing for the claimants has fairly
submitted that those sale instances refer to smaller
pieces of land. Considering the same and bearing in
mind the ruling by the Apex Court in Administrator Administrator Administrator
General of West Bengal v. Collector, Varanasi’s case General of West Bengal v. Collector, Varanasi’s case
General of West Bengal v. Collector, Varanasi’s case
(supra) (supra) as well as Ratan Lal Gupta’s case (supra), (supra) Ratan Lal Gupta’s case (supra), Ratan Lal Gupta’s case (supra),
those sale instances in relation to the smaller plot
of land could be of no help to determine the
compensation in relation to the large extent of land.
Besides, the testimony of the claimants as well as the
valuer nowhere discloses any evidence comparing the
nature and the location of the land in question with
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the pieces of land which were subject matter of those
sale instances. In other words, there is no evidence
to deal with the issue of comparability between the
land in question with the pieces of land which were
subject matter of those sale instances and on that
count also those sale instances are of no help to
determine the market value of the land in question.
15. The next point which arises for consideration
relates to the testimony of the valuer. Perusal of
the testimony of the valuer apparently discloses a
clear statement to the effect that he had inspected
the site on 4th May, 1989 to assess the market value
as on 4th February, 1970 i.e. the date of
notification. In other words, the land in question
was sought to be inspected nearly 19 years after the
date of issuance of notification. Obviously, the
valuer had no personal knowledge about the situation
in loco in the year in which the notification under
Section 4 was issued in relation to the land in
question. Undisputedly, the valuer had not disclosed
any documentary material regarding the situation in
loco in the said year, either in his testimony or in
his valuation report. His testimony regarding the
factual situation at the site in relation to the plot
in question in the year 1970 is purely hearsay
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evidence, which cannot be given any credibility.
16. As regards the sale instances and other
decisions which are stated to have been considered by
the valuer to ascertain market value, apart from the
claim that he had considered the comparability between
the land in question with the pieces of land which
were subject matter of those decisions and the sale
instances, no evidence regarding such actual
consideration of the issue of comparability has been
placed on record. Mere claim of consideration by the
valuer is different from the evidence regarding such
comparability between the land in question with the
pieces of land which were subject matter of the sale
instances and those decisions. Being so, we wonder
what evidentiary value can be attached to such a
testimony of the valuer. In the absence of cogent
material being disclosed by the valuer which could
have been the basis for arriving at a particular
figure to be the market value of the land, and bearing
in mind the decision of the Apex Court which leaves us
with no option than to hold the testimony of the
valuer to be without any credibility, it is to be held
that the testimony of the valuer is of no help to
ascertain the market value of the land in question.
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17. The learned advocate for the claimants however
has submitted that the testimony of the valuer has
gone unchallenged, and therefore, the same cannot be
totally discarded. In the land acquisition
proceedings, it is for the claimant to establish that
his claim regarding enhancement of compensation is
well justified and this has to be done by the claimant
by adducing cogent evidence in support of his claim
for enhancement. The burden in that regard
essentially lies upon the claimants. No doubt, the
normal rule is that in case of the burden of proof is
discharged by the party, the onus would shift upon the
opposite party. It is also a normal rule of evidence
that once a statement of fact is not challenged by the
opposite party, it can be deemed to have been
established. However, in the case of proceedings
under Land Acquisition Act, there is an exception to
this rule inasmuch as that mere weakness in the
defence by the State or failure on the part of the
Government advocate to cross-examine the claimants’
witnesses effectively, that by itself cannot be
sufficient to conclude about the establishment of the
facts alleged by the claimants and their witnesses in
the course of their testimony. Such facts which are
necessary to be established for discharging the burden
of proof regarding the claim for enhancement of
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compensation are to be proved with necessary materials
in support of such statement of fact. Any decision in
that regard, if required, one can safely rely upon the
one in the matter of P.Ram Reddy & Ors. v. Land Ram Reddy & Ors. v. Land Ram Reddy & Ors. v. Land
Acquisition Officer, Hyderabad Urban Development Acquisition Officer, Hyderabad Urban Development Acquisition Officer, Hyderabad Urban Development
Authority, Hyderabad & Ors., Authority, Hyderabad & Ors., reported in (1995)2 SCC Authority, Hyderabad & Ors.,
305, wherein the Apex Court, while reiterating its
earlier decision in Chaturbhuj Pande v. Collector Chaturbhuj Pande v. Collector Chaturbhuj Pande v. Collector
(AIR 1969 SC 255), and while answering the question as
to whether the statements of the witnesses in such
proceedings which are not subjected to
cross-examination or effective cross-examination or
that no contrary evidence is adduced, is the Court
obliged to accept such statements to be true in
determining the market value of the lands acquired,
held thus, "it is, no doubt true, that whenever oral
evidence is adduced by parties on certain matters in
controversy, it may become difficult for the court to
overlook such evidence, if it is not shown by
effective cross-examination of such witnesses who have
given such evidence or by adducing contra-evidence,
that the oral evidence was unreliable or the witnesses
themselves are not creditworthy. But, in land
acquisition references before civil courts, when
witnesses give oral evidence in support of the claims
of claimants for higher compensation, the ineffective
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cross-examination of such witnesses, is not an
uncommon feature if regard is had to the manner in
which claims for enhanced compensation in land
acquisition cases are defended in courts on behalf of
the State. Indeed, when a question arose before this
Court whether the court is bound to accept the
statements of witnesses only because they have not
been effectively cross-examined or evidence in
rebuttal has not been adduced, it was observed by this
Court in Chaturbhuj Pande v. Collector thus:-
It is true that the witnesses examined on
behalf of the appellants have not been
effectively cross-examined. It is also true
that the Collector had not adduced any
evidence in rebuttal; but that does not mean
that the court is bound to accept their
evidence. The Judges are not computers....
they are bound to call into aid their
experience of life and test the evidence on
the basis of probabilities."
Considering the decision of the Apex Court, and taking
into consideration the testimony of the valuer, as
stated above, therefore, it does not deserve any
credibility for the purpose of ascertaining the market
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value of the land in question.
18. Yet another issue which is sought to be raised
is regarding failure on the part of the reference
Court to consider the point regarding necessity of the
deduction being made while applying the price of
developed land to the land acquired in undeveloped
form. Undoubtedly, the decisions relied upon disclose
the necessity of consideration of the said aspect of
the matter. However, in the case in hand, it is not
necessary to deal with the said issue in the facts and
circumstances of the case.
19. Undoubtedly, the learned advocate appearing on
behalf of the claimants contended that the evidence on
record justifies the grant of compensation at the rate
of Rs.25/- and not at the rate of Rs.40/- as is asked
for by the claimants. However, as already stated
above, there is no cogent evidence produced by the
claimants in support of any such claim. Even there is
no cogent material on record to justify the claim for
enhancement of compensation at the rate of Rs.15/- per
sq.meter.
20. The last point which arises for our
consideration is what should be the just and
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appropriate compensation payable to the claimants. In
that regard, the claimants themselves have stated and
the records also disclose that the land in question is
situated at a place of walking distance from
Mumbai-Pune National Highway. The claimants claimed
that the distance between Taloja Railway Station and
the acquired land is about 7 minutes walking distance,
and 4 minutes walking distance to the Bombay Poona
Highway. The gaothan area of the village Taloja lies
at a distance of about 6 minutes walk from the said
land in question. The acquired land has a levelled
ground and since the year 1970, it has the water
facility. The electricity facility is also available
in the area. The land is clearly approachable by a
bullock cart road and the S.T.stop lies at a distance
of about 5 minutes walk from the plot in question.
Considering all these aspects, therefore, though the
land is an agricultural land, it has the potentiality
for construction activities therein and therefore the
same is having NA potentiality cannot be disputed.
Though, the testimony of the valuer is of no much
assistance for ascertaining the market value of the
land, certainly the description of factual situation
at the time of his inspection of the land in the year
1989 to the extent it disclosed different from the
situation which existed in the year 1970, can be of
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help to ascertain the market value of the land in the
year 1970. The report prepared by the valuer also
discloses certain facts which are clearly otherwise
borne out from the record. It is also a matter of
record that in land acquisition cases, relating to the
acquisition of the land by the side of national
highway in the year 1966, the compensation at the rate
of Rs.4.78 ps. per square meter was awarded.
Undoubtedly, the said compensation by itself cannot be
a basis for ascertaining the market value of the land
which was acquired in the year 1970. However, the
same can be taken into consideration to ascertain what
could be the market value in the year 1970 bearing in
mind the increase in the land prices in the locality.
To that extent, certainly, the decisions which are
sought to have been relied upon by the learned
Advocate for the claimants throw some light. Taking
into consideration all these materials, certainly the
market value of the land in question in the year 1970
could not be at the rate of Rs.3/- or Rs.4/- per
square meter. At the same time, as already observed
above, it cannot justify the market value at the rate
of Rs.15/- per square meter. Taking into
consideration the large extent of land and bearing in
mind the evidence on record and the decisions referred
above, in our considered opinion, the just and
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appropriate market value of the land in the year 1970
ought to have been calculated at Rs.32,000/- per acre
i.e. Rs.8/- per sq.meter. We therefore hold that the
market value of the land in question on the date of
issuance of the notification under Section 4 was at
Rs.32000/- per acre. The compensation payable to the
claimants ought to be calculated accordingly along
with the other statutory benefits available under the
said Act. The impugned judgment and award is to be
modified accordingly.
21. The First Appeal filed by the State therefore
partly succeeds and the impugned judgment and award
stands modified accordingly. The First Appeal filed
by the claimants is hereby dismissed. There shall be
no order as to costs.
22. In case, the amount has already been disbursed
in terms of the enhancement granted by the Reference
Court, the claimants shall refund the same in terms of
this judgment within a period of 12 weeks from today
along with the interest thereon at the rate of 6% per
annum, from the date of collection of amount till the
date of repayment.
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( R.M.S.KHANDEPARKAR, J )
( V.M.KANADE, J )
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