: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.420 OF 1998 The Malegaon Municipal Council, Malegaon ..Appellants Vs. The Special Land Acquisition Officer No.1, Nashik & Anr. ..Respondents Mr.Prashant Naik, for the Appellants. Mrs.A.A.Mane, AGP for Respondent No.1. Mr.P.N.Joshhi for Respondent No.2. CORAM : B.H. MARLAPALLE & CORAM : B.H. MARLAPALLE & CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ. S.J. VAZIFDAR, JJ. S.J. VAZIFDAR, JJ. DATED : DATED : DATED : 8TH APRIL, 2009 8TH APRIL, 2009 8TH APRIL, 2009 P.C. : P.C. : P.C. :- 1. This first appeal filed under section 54 of the Land Acquisition Act, 1894 (Act for short) arises from the award passed by the learned Joint District Judge at Nasik on 4.9.1997 in L.A.R. No.126 of 1986. Land admeasuring 120 sq. mtrs. from C.T.S. No. 1499 of Malegaon Town and belonging to respondent no.2 trust, came to be acquired for widening of the Shivaji Square area, by publishing notification under section 4 of the Act on 12.1.1984 and the Land Acquisition Officer has passed his award on 3.8.1984. However, the possession of the land was taken over on 17.4.1983. : 2 : 2. Not being satisfied with the compensation awarded by the Land Acquisition Officer, the trust filed an application under section 18 of the Act for enhancement of the compensation and the same was referred to and registered as L.A.R. No.126 of 1986. The trust claimed compensation of Rs.2000/- per square meter for the land and Rs.75,000/- for the structure allegedly standing on the said land. The Reference Court was pleased to fix the market value at Rs.2000/- per sq mtr. and the structure was valued at Rs.49,400/-. 3. On behalf of the claimant trust, Hiralal Bhilasheth Asmar (P.W.1), one of the trustees, Gautam Keshrichand Chudewala (P.W.2) as a valuer, Sriniwas Suwalal Tapariya (P.W.3) and Ramdas Moreshwar Kasar (P.W.4) were examined. On behalf of the State Government, Smt.Ramkumari Sharma (D.W.1) was examined. 4. In the evidence of D.W.1, the sale instance of 1983 for an amount of Rs.35,000/- (Exhibit "81") was placed on record. Whereas, in the evidence of Sriniwas Tapariya (P.W.3), two different sale instances i.e. Exhibit "52" and "53" were brought : 3 : on record. The sale instance at Exhibit "52" is in respect of a plot of 183 sq. mtrs. and the sale value was Rs.2,00,000/- whereas, at Exhibit "53" the plot was of 20 sq. mtrs. with the sale price of Rs.3,50,000/-. They were adjacent to each other and thus constituted one plot after the same were purchased by the Malegaon Merchant Co-operative Bank. P.W.3 was the chairman of the said bank. 5. The learned Judge of the Reference Court accepted the sale instance at Exhibit 53 as the comparable sale instance and proceeded to fix the market rate at Rs.2000/- per sq. mtr. 6. We do not find any justification in accepting the sale instance at Exhibit "53" as being a comparable sale instance. However, the sale instance at Exhibit "52" could be said to be a comparable sale instance. The plot covered under Exhibit "52" is from C.T.S. No.379 admeasuring about 183.01 sq. mtrs. The market rate of the said plot comes to about Rs.1100/- per sq. mtr. 7. The Municipal Council has relied upon the award passed by the Land Acquisition Officer and submitted that in the award itself, the Land Acquisition : 4 : Officer recorded the sale prices ranging from Rs.75/- to Rs.510/- per sq. mtr. within the period from 1978 to January, 1984. It was also submitted that the trust property did not have commercial value though it was abutting Shivaji Chowk on the old Bombay-Agra road. It was further submitted that in the neighbouring area there was not much development so as to fix the market rate at Rs.2000/- per sq. mr. 8. Mr.Naik also relied upon a Division Bench judgment of this Court dated 11th November, 2008 passed in First Apeal No.392 of 1998 with First Appeal No.720 of 1999 in L.A.R. No.188 of 1988 between The Malegaon Municipal Council and The Special Land Acquisition Officer No.1, Nasik & Anr. The market rate fixed at Rs.224/- per sq. mtr. by the Reference Court was confirmed by this Court and the land was from Survey No.158/2 and was acquired for the re-settlement of displaced persons. The acquisition was of the year 1986 and it was under the MRTP Act. 9. As noted earlier, we find that the sale instance at Exhibit "52" in respect of a plot of 183 sq. : 5 : mtrs. from C.T.S. No.301 is a comparable sale instance but, admittedly, the distance between the said plot purchased by the Malegaon Merchant Co-operative Bank and the land acquired in the instant case is about a kilometre. We deem it appropriate therefore to fix the market rate at Rs.1000/- per sq. mtr. in the instant case and, to that extent, we have to allow this appeal partly. 10. The Reference Court noted that the trust would be entitled for all other statutory benefits on the total compensation payable, including Rs.49,400/- for the structure. 11. Hence, this appeal is allowed partly by fixing the market rate at Rs.1000/- per sq. mtr. and the value of the structure at Rs.49,000/-. In addition, the trust would be entitled to all the statutory benefits under the Act. Fresh award be issued in these terms. 12. The excess amount received by the trust, if any, shall be returned to the Appellant Municipal Council within two months. Parties to bear their own costs. : 6 : (S.J. VAZIFDAR, J.) (B.H. MARLAPALLE, J.)