1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.941 of 1997 Ichalkaranji Municipal Council ..Appellant Vs Nijam Rajaq Kalawant and anr ..Respondents Mr. T.S. Ingale for for appellant. Mr. P.R. Arjunwadkar for respondent no.1. Mr. A.R. Patil, AGP for respondent no.2. With First Appeal No.1107 of 1997 Ichalkaranji Municipal Council ..Appellant Vs. Shri Suresh Marutrao Jadhav and anr. ..Respondents Mr. T.S. Ingale for appellant. Mr. V.B. Rajure for respondent no.1. Mr. A.R. Patil, AGP for respondent no.2. With First Appeal No.728 of 1998 And Civil Application No. 4685 of 2001 Ichalkaranji Municipal Council ..Appellant Vs. The State of Maharashtra and ors. ..Respondents Mr. Prasant Naik for appellant. Mr. A.R. Patil, AGP for respondent no.1. Mr. A.M. Kulkarni for respondent no.2. 2 With First Appeal No.729 of 1998 And Civil Application No. 3495 of 2001 Ichalkaranji Municipal Council ..Appellant Vs. The State of Maharashtra and ors. ..Respondents Mr. Prashant Naik for appellant. Mr. A.R. Patil, AGP for respondent no.1. Mr. A.M. Kulkarni for respondent no.2. Ms. Gauri Godse for respondent no.3. With First Appeal No.586 of 2001 With Cross Objection Stamp No.24742 of 2008 Ichalkaranji Municipal Council ..Appellant Vs. Smt. Gangubai Dattu Chavan since deceased through LRs. Sou. Rukmini Appasaheb Katkar and ors. ..Respondents Mr. T.S. Ingale for appellant. Mr. M.L. Patil for respondent no.1 - claimant. Mr. A.R. Patil, AGP for respondent nos.2 and 3. With First Appeal No.587 of 2001 With Cross Objection Stamp No.34550 of 2001 Ichalkaranji Municipal Council ..Appellant Vs. Shri Kallappa Baburao Awade and ors. ..Respondents Mr. T.S. Ingale for appellant. Mr. M.L. Patil for respondent nos.1 and 2-claimants. Mr. A.R. Patil, AGP for respondent nos.3 and 4. 3 With First Appeal No.417 of 2002 With Cross Objection Stamp No.35089 of 2001 Ichalkaranji Municipal Council ..Appellant Vs. Malhari Ganesh Bawachakar and ors. ..Respondents Mr. T.S. Ingale for appellant. Mr. M.L. Patil for respondent no.1-claimant. Mr. A.R. Patil, AGP for respondent nos.3 and 4. With First Appeal No.418 of 2002 With Cross Objection Stamp No.35087 of 2001 Ichalkaranji Municipal Council ..Appellant Vs. Arun Mahadev Ghorpade and ors. ..Respondents Mr. T.S. Ingale for appellant. Mr. M.L. Patil for respondent nos.1, 2(1) to 2(4) and 3(1) to 3(3)-claimants. Mr. A.R. Patil, AGP for respondent nos.4 and 5. With First Appeal No.1212 of 2002 Ichalkaranji Municipal Council ..Appellant Vs. Ajit Abbas Shaikh and ors. ..Respondents Mr. T.S. Ingale for appellant. Mr. M.L. Patil for respondent no.1. Mr. A.R. Patil, AGP for respondent nos.3 and 4. 4 CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. Reserved on : March 5, 2009. Pronounced on : April 2, 2009. JUDGMENT (PER B.H.MARLAPALLE,J.) : 1. All these appeals filed under Section 54 of the Land Acquisition Act, 1894 ("the Act" for short) arise from the acquisition of land admeasuring 8 H. 48 Are for the rehabilitation of slum dwellers as undertaken by the appellant - Municipal Council. The Development Plan of the appellant - Municipal Council was sanctioned by the Government of Maharashtra vide notification dated 25/5/1981 and the land in Survey Nos.47, 49, 50, 51, 56, 57, 58, 59, 639, 640, 642 and 643 came to be reserved for rehabilitation of slum dwellers (Site No.102). A notification under Section 126(4) of the Maharashtra Regional Town Planning Act, 1966 read with Section 6 of the Act came to be published on 27/2/1986 and the Land Acquisition Officer passed his award on 7/5/1987. The Land Acquisition Officer determined the market value at Rs.1200/- per Are in respect of Survey Nos.51, 56, 639, 640, 641, 643 (Part) and for the remaining lands at Rs.1500/- per Are for the purpose of hypothetical 5 layout valuation (total 25 per cent deduction for development i.e. 15 per cent for road and for open space 10 per cent) have been allowed by the Land Acquisition Officer. Being aggrieved by the market rate so granted the land owners filed applications under Section 18 of the Act which came to be referred and registered as Land Reference as per the details shown below: _____________________________________________________ F.A.No. L.R.No. Area under Rate awarded Land Acquisition Awarded Deduc- by court tions per Sq. for Mtr. Develop (Rs.) ment ----------------------------------------------------- 941/97 10/88 63 Are 120 Nil 1107/97 27/88 38 Are 150 25% 728/98 7/88 1H.42 Are 180 33% 729/98 6/88 2H.01 Are 185 33% 586/01 26/88 65 Are 110 Nil 587/01 18/88 72 Are 110 Nil 417/02 12/88 1H.01 Are 110 Nil 418/02 11/88 1H.01 Are 110 Nil 1212/02 21/88 65 Are 110 Nil ----------------------------------------------------- 2. Some of the claimants have also filed Cross Objections in some of the above stated appeals. 6 However, in First Appeal Nos.941/97, 1107/97 and 1212/02 no Cross Objections / Appeals have been filed by the claimants and the market rate of Rs. 120/-, Rs.150/- and Rs.110/- per square meter, as the case may be, has been accepted by the land owners in these three appeals. In the remaining six Appeals, Cross Objections have been filed praying for further enhancement in the market value and mainly relying upon the report of the Valuer and his oral depositions. In Appeal No.1107 of 1997, 25 per cent of the land acquired has been allowed to be deducted for roads and open spaces whereas no such deduction has been allowed in the remaining two appeals i.e. First Appeal No.941 of 1997 and First Appeal No.1212 of 2002. Same is the case in First Appeal Nos.728 and 729 of 1998. In Appeal Nos.728 and 729 of 1998 arising from LAR Nos.7 and 6 of 1988 respectively and decided by the very same Court, deductions from acquired land at 33% have been permitted. In LAR No.6 of 1988 the market value of the land has been fixed at Rs.185/- per sq.mtr. whereas the very same Court in LAR No.7 of 1988 has fixed the market rate at Rs.180/- per sq.mtr. on the ground that the land does not face the main road. In Appeal Nos.586 and 587 of 2001 and Appeal Nos.417 and 418 of 2002 no 7 such deductions at 33 % or 25 % from the acquired land have been provided. 3. The appellant - Municipality submitted that for the very same project when a big patch of land was acquired (admeasuring 8 H. 48 R.) it was not permissible for the Reference Court to fix the market rate at per square meter and the sale instances of small plots of land, even less than 500 sq.mtr., could not have been considered. It was further submitted that the Reference Court awards do not give any uniform land deduction for development. In some cases deduction is at 25 %, in some cases it is at 33 %, whereas in other cases it is nil, despite the fact that the entire land is acquired for the very same project i.e. resettlement of hutment dwellers by the Municipal Council. It was pointed out that if the market rate has been awarded at Rs.120/- per sq.mtr. without any deductions in the land for development and if minimum 25% deduction is to be allowed, the market rate would work out to Rs.160/- per sq.mtr. The learned counsel for the Municipal Council, therefore, prayed for uniformity in the market rate as well as the standard deductions to be made from the land for development keeping in mind that the 8 land is acquired for the residential purposes. A common judgment of this Court (Single Bench) dated 4/4/2008 in First Appeal Nos.547, 665, 813 and 815 of 1991 has been placed before us. First Appeal Nos.813 and 815 of 1991 arose from LAR Nos.4 of 1985 and 3 of 1985 respectively and were filed by the claimants. Whereas First Appeal Nos.547 and 665 of 1991 were filed by the State Government against the very same order. They were thus Cross Appeals. This Court noted that the land was acquired by issuing notification under Section 126(4) of the MRTP Act read with Section 6 of the Land Acquisition Act on 6th January 1983. The land was reserved under the Development Plan for the purpose of resettlement of slum dwellers and it was sought to be acquired for the very same purpose. The land in LAR No.4/85 admeasured 1200 sq.mtrs. and the same area was in LAR No.3/85 as well. This Court fixed the market rate at Rs.18/- per sq.ft. i.e. about Rs.185/- per sq.mtr. in F.A.No.813/1991 whereas in F.A.No.815/91 the market value was fixed at Rs.10/- per sq.ft. i.e. about Rs.105/- per sq.mtr. . In the award passed in LAR No.6/88 and impugned in First Appeal No.729 of 1998 the claimants 9 had placed before the Reference Court five different awards in respect of the land acquired by the State Government in Ichalkaranji town. LAR Nos.71 of 1988, 34 to 37 of 1992, 75 of 1987 and 50 of 1989. In some cases 33 % deduction was provided from the land for development purposes whereas in some other awards there was no such deduction provided. The Reference Court noted that the market value fixed by the Court in the comparable land varied from Rs.100 to Rs.250 per sq.mtr. Reference Court also noted the sale instance of land purchased by Choudeshwari Co-op. Bank and the Life Insurance Corporation of India and discarded both the sale instances. It averaged out the market rate between Rs.100 to Rs.250 per sq.mtr. and fixed the market value at Rs.185/- per sq.mtr. At the same time it provided for 33 % deduction. The same formula came to be followed in LAR No.7/88 which is challenged in First Appeal No.728 of 1998. In both these appeals no Cross Objections have been filed and thus the rate fixed at Rs.185/- or Rs.180/- per sq.mtr. with land deductions at 33% has become final. 4. In the cross objections the claimants have 10 relied upon the private Valuer’s report as well as his depositions before the Reference Court. We have gone through the Valuer’s report at Exhibit 49 and the depositions of the private Valuer at Exhibit 48. We are not impressed by the valuation so made and it is not realistic as well as not based on comparable sale instances. The Reference Court has considered the earlier award passed in respect of the land for resettlement of slum dwellers and this Court in First Appeal Nos.813 and 815 of 1991 has fixed the market rate at Rs.18/- per sq.ft. or Rs.10/- per sq.ft. in respect of the land acquired for the very same purpose and from the sanctioned Development Plan area. We are satisfied that the Reference Court rightly discarded the evidence of the private Valuer. The sale instances in respect of land in Survey Nos.575 and 608 cannot be called as comparable sale instances as the said plots are in the Gaothan area and far away from the suit land (as is clear from the map placed on record in First Appeal No.1107 of 1997). 5. On determination of the market rate we are satisfied that rate fixed at Rs.185/- per sq.mtr. appears to be just and proper having regards to the 11 fact that the acquired areas are part of the Development Plan approved by the Government of Maharashtra in the year 1981 and for the very same project the land acquired was awarded market rate varying from Rs.100 to Rs.250 per sq.mtr. depending upon the distance from the Gaothan area. The Reference Court has averaged out the market value and fixed at Rs.185/- per sq.mtr. The reasoning so provided cannot be said to be erroneous or illegal when some guess work is required to be done in fixing the market value in the absence of comparable sale instances. 6. Now coming to the issue of standard deductions from the land acquired for the purpose of development, we have noted that in Appeal No.1107 of 1997 the Reference Court has considered 15% of the area for construction of roads and 10 % of the area for open spaces. We find that the said deduction at 25% is reasonable. However, the Court proceeded to deduct Rs.10/- per sq.mtr. for construction of road, Rs.10/- for development including N.A. charges etc., 5% of the development cost as Architect’s fees with legal charges at the same rate and Developer’s profit at 15%. As the Municipal Council acquired the land 12 for resettlement of the hutment dwellers and some of the land under acquisition was already encroached by slum dwellers and the entire land formed part of the development area sanctioned by the State Government, the Municipal Council was in any case required to provide for roads and, therefore, we do not find any justification to provide for any further deductions on account of construction of road or development charges etc. The ends of justice would be met if the market rate is fixed at Rs.185/- per sq.mtr. and 25% deduction is uniformly allowed for the purpose of roads and open spaces from the acquired land. 7. In the premises, we fix the market rate in respect of the acquired land and subject matter in all these appeals at Rs.185/- per sq.mtr. We further direct deduction from the acquired land at 25% and the market rate of Rs.185/- per sq.mtr. shall be payable in respect of the remaining 75% of the land acquired. In addition the land owners shall be entitled for all statutory dues like solatium, additional component and interest etc. The impugned awards stand modified accordingly. 8. The appeals filed by the Municipal Council are 13 partly allowed in terms of the above modifications and the Cross Objections filed by the claimants stand disposed. 9. Civil applications do not survive and the same stand disposed. 10. The parties to bear their own costs. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)