ash 1 fa-159n158xobjnwithca IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO. 159 OF 1996 WITH CROSS OBJECTION ST. NO.18461 OF 2011 WITH CIVIL APPLICATION NO.226 OF 2011 IN CROSS OBJECTION ST. NO.18461 OF 2011 AND FIRST APPEAL NO.158 OF 1996 WITH CROSS OBJECTION ST. NO.18464 OF 2011 WITH CIVIL APPLICATION NO.224 OF 2011 IN CROSS OBJECTION ST. NO.18464 OF 2011 FA NO.159 OF 1996 with CROSS OBJECTION The State of Maharashtra ) (through the Special Land Acquisition ) Office, CIDCO Project, Nashik. ).. Appellant Vs 1. Malu Shankar Barde, age 52 years ) Deceased through his ) Legal Representatives - ) (a) Dinkar Malu Barde, ) (b) Bhimraj Malu Barde, ) (c) Shri Krishna Malu Barde, ) Deceased through his ) Legal Representatives - ) (i) Ravindra Krishna Barde, ) Age 15 years, ) ash 2 fa-159n158xobjnwithca (ii) Deepak Krishna Barde, ) Age 13 years, ) (iii) Jyoti Krishna Barde, ) Age 11 years, ) (iv) Hirabai Krishna Barde, ) Age 34 years, for self and ) and M/G of Sr. Nos.i to iii ) (d) Eknath Malu Barde, ) (e) Sadashiv Malu Barde, ) (f) Dashrath Malu Barde, ) (g) Muktabai Malu Barde, ) (h) Subhadrabai Chandrakant Bhujbal, ) (i) Sitabai Valuji Shinde, ) all adults r/o CIDCO, Barde Mala, ) Nashik. ).. Respondents (Org. Claimants ) -- FA NO.158 OF 1996 with CROSS OBJECTION The State of Maharashtra ) (through the Special Land Acquisition ) Office, CIDCO Project, Nashik. ).. Appellant Vs 1. Malu Shankar Barde, ) Deceased through his ) Legal Representatives - ) (1-a) Dinkar Malu Barde, ) (1-b) Bhimraj Malu Barde, ) (1-c) Shri Krishna Malu Barde, ) Deceased through his ) Legal Representatives - ) (i) Ravindra Krishna Barde, ) minor ) (ii) Deepak Krishna Barde, ) minor ) ash 3 fa-159n158xobjnwithca (iii) Jyoti Krishna Barde, ) minor ) (iv) Hirabai Krishna Barde, ) (1-d) Eknath Malu Barde, ) (1-e) Sadashiv Malu Barde, ) (1-f) Dashrath Malu Barde, ) (1-g) Muktabai Malu Barde, ) (1-h) Subhadrabai Chandrakant Bhujbal, ) (1-i) Sitabai Valuji Shinde, ) all adults r/o CIDCO, Barde Mala, ) Nashik. ).. Respondents (Org. Claimants ) -- Shri A.R. Patil, AGP for the Appellant. Shri Anil Ahuja for the Respondents. -- CORAM : A.S. OKA, J SUBMISSIONS WERE HEARD ON : 20TH OCTOBER, 2011 JUDGMENT PRONOUNCED ON : 14TH DECEMBER, 2011 JUDGMENT : . These two Appeals can be disposed of by a common Judgment as both the Appeals arise out of a common Judgment delivered by the Trial Court. First Appeal No.158 of 1996 is preferred by the State of Maharashtra for challenging the judgment and award dated 25th April, 1994 passed by the learned Additional District Judge, ash 4 fa-159n158xobjnwithca Nashik in Land Acquisition Reference No.90 of 1984. The land subject matter of the said Reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”) is the land bearing Survey No.961/11 admeasuring 27 Ares situated at Nashik, Taluka and District- Nashik. The Notification under Section 6 of the said Act read with Section 126(2) of the Maharashtra Regional and Town Planning Act, 1966 ( hereinafter referred to as “the said Act of 1966”) in respect of the said land was published on 24th May, 1977. An Award under Section 11 of the said Act was made on 28th February, 1984. The market value at the rate of Rs.4/- per sq. meter was offered under the said Award. In the Reference, a claim of market value was made at the rate of Rs.100/- per sq. meter. By the impugned Judgment and Award, the market value of the acquired land was fixed at Rs.9.90 ps per sq. meter. The Reference Court granted statutory benefits under Section 23(1-A), 23(2) and 28 of the said Act. 2. By First Appeal No.159 of 1996, the State of Maharashtra has taken an exception to the Judgment and Award dated 25th April, 1994 passed by the learned Additional District Judge, Nashik in a Reference under Section 18 of the said Act bearing Land Acquisition Reference No.166 of 1982. The acquired lands subject matter of the said Reference are bearing Survey No.961/1 to 5, Survey No.972/1, 3 and 5 to 7 at Nashik, Taluka and District Nashik. Notification under ash 5 fa-159n158xobjnwithca Section 6 of the said Act read with Section 126(2) of the said Act of 1966 was published on 21st April, 1997 and the Award under Section 11 of the said Act was made on 19th April, 1982. By the said Award, the market value at the rate of Rs.4/- per sq. meter was offered. In the Reference, the Respondents claimed market value at the rate of Rs.20/- per sq. meter. By the impugned Judgment and Award, the Reference Court fixed the market value at the rate of Rs.9.90 ps. per sq. meter and granted statutory benefits under Section 23(1-A), 23(2) and 28 of the said Act. 3. Civil Application No.226 of 2011 has been filed by the Respondents-Claimants in First Appeal No.159 of 1996 for extension of time to file Cross Objection. By the Cross Objection, market value was claimed at the rate of Rs.18/- per sq.meter. Civil Application No.224 of 2011 has been preferred by the Respondents-Claimants in First Appeal No.158 of 1996. Prayer in the said Application is for extension of time to file Cross Objection. By the Cross Objection, the market value has been claimed at the rate of Rs.18/- per sq. meter. During the course of arguments, a Civil Application for additional evidence was tendered by the learned counsel appearing for the Respondents after serving an advance copy to the learned Assistant Government Pleader appearing for the Appellant-State. ash 6 fa-159n158xobjnwithca 4. The learned Assistant Government Pleader appearing for the Appellant at the outset pointed out that without considering the fact that there was no evidence of comparability, the Reference Court erroneously relied upon a decisions of this Court in First Appeal No.610 of 1985 and First Appeal No.862 of 1989. He submitted that apart from the fact that the land subject matter of the said First Appeal was not shown to be comparable, by the said Judgments, the market value of the lands falling in Groups-I and II was fixed at the rate of Rs.18/- per sq. meter and in these two Appeals, the lands acquired were falling in Group III. He submitted that in respect of the Land Acquisition Reference No.166 of 1982, the Award under Section 11 of the said Act was made on 19th April, 1982 and, therefore, the Reference Court could not have granted statutory benefit under Section 23(1-A) to the Claimants. The learned AGP submitted that the Cross Objections have been filed belatedly after the Appeals were fixed for hearing and therefore, time for filing Cross Objections should not be extended. The learned counsel appearing for the Claimants invited attention of the Court to a common Judgment delivered by this Court in First Appeal No.862 of 1989 and several other connected Appeals. He submitted that the said Appeals arose out of references under Section 18 of the said Act in relation to the lands at Nashik which were acquired for the same public purposes by Special Planning Authority by Notification dated 15th July, 1978. He pointed out that by this Judgment of this ash 7 fa-159n158xobjnwithca Court, the market value was fixed as of 1st February, 1975 when the City and Industrial Development Corporation of Maharashtra Limited ( for short “CIDCO”) was appointed as the Special Planning Authority for the said area. He submitted that even in the present cases in hand, the Reference Court has granted market value as of 1st February, 1975. He submitted that the reasons recorded by the Reference Court for treating the acquired lands as falling in Group-III are completely erroneous. He submitted that the lands bearing Survey Nos.977 and 960 which were treated as falling in Group-I by the aforesaid decision in First Appeal No.862 of 1989 and the acquired lands were situated at equal distance parallel from Highway. He, therefore, submitted that the acquired lands ought to have been classified as falling in Group-I. He pointed out the averments in the application for additional evidence tendered across the bar. He pointed out that the aforesaid decision was in the First Appeals arising out of Land Acquisition Reference No.207 of 1981 and other connected References including the Land Acquisition Reference Nos. 152 and 153 of 1982. He pointed out that the said two References decided by a common judgment delivered in Land Acquisition Reference No.207 of 1981. He submitted that the First Appeal Nos.891 of 1989 and 892 of 1989 arising out of the judgments in Land Acquisition Reference Nos.152 and 153 of 1982 were decided by this Court relying upon the judgment in First Appeal No.862 of 1989. He stated that the Land Acquisition Reference Nos.152 and 153 of 1982 ash 8 fa-159n158xobjnwithca were in respect of the lands bearing Survey Nos.957/1 and 957/2 which were acquired by the same notification published on 21st April, 1977. He pointed out that the said lands subject matter of First Appeal Nos.891 of 1989 and 892 of 1989 are adjacent to the acquired lands in the present cases and that in the First Appeal Nos.891 of 1989 and 892 of 1989, the market value of Rs.18/- per sq. meter had been fixed. The said market value is as of 1st February, 1975. He, therefore, submitted that the Claimants are entitled to market value at the rate of Rs.18/- per sq. meter which was fixed by this court in cases of comparable lands. He submitted that the lands which are subject matter of both these Appeals are in a close vicinity of the lands subject matter of First Appeal Nos.891 of 1989 and 892 of 1989 and, therefore, a different market value in respect of the acquired lands cannot be fixed. Relying upon a decision of this Court in the case of State of Maharashtra v Kalu Ladku Mhatre, (2011(4)Mh.L.J. 741), he submitted that a case was made out for grant of extension of time to file Cross objections. He submitted that the application for additional evidence be allowed. 5. I have carefully considered the submissions. It is true that there is a long delay of more than 10 years in filing the Cross objections. In this behalf, a reference will have to be made to what is held by this Court in the case of State of Maharashtra (supra). In Paragraph 7, this Court held thus:- ash 9 fa-159n158xobjnwithca “7. The last part of sub-rule (1) of Rule 22 of Order XLI deals with the grant of extension of time for filing of Cross Objection and section 5 of the Limitation Act deals with the extension of time to prefer an Appeal. Section 5 of the Limitation Act incorporates a condition precedent of the appellant satisfying the Appellate Court that he had sufficient cause for not preferring the Appeal within the prescribed period of limitation. Sub-rule (1) of Rule 22 of Order XLI does not incorporate the stringent requirement of establishing a sufficient cause. Thus, a wide power to extend the time to file Cross- Objection has been vested in the Appellate Court. Though there is no requirement of establishing sufficient cause within the meaning of section 5 of the Limitation Act, in the application for seeking extension of time to file Cross-Objection, brief reasons for delay will have to be set out. A wider discretion has been conferred on the Appellate Court under the sub- rule (1) of Rule 22 than what is conferred by section 5 of the Limitation Act. The power to extend time under sub-rule (1) of Rule 22 of Order XLI of the Code has to be liberally exercised in case where a Cross-Objection is sought to be filed before the Appeal is heard for final hearing.” (Emphasis added ) 6. In the present case, the Respondents are relying upon the decision of the Division Bench of this Court in respect of comparable lands where higher market value has been granted. The Appeals remained pending from the year 1996 and it appears that when the Appeals were listed on final hearing board, these Cross objections have been filed. It is pointed out in the applications for extension of time to file Cross objections that due to acute financial difficulties, the ash 10 fa-159n158xobjnwithca Respondents were unable to collect amount payable by way of Court fees, and therefore, notwithstanding the Advocate’s advise, the Respondents could not file Cross objections immediately after service of notice of the Appeals. In the cross-objections, enhancement is being claimed on the basis of the judgments of the Division Bench of this Court. In the application, it is stated that only because the Respondents could not arrange for payment of Court fees, the Cross objections could not be filed earlier. In the present case, it cannot be said that due to the delay in filing Cross objections, the hearing of the Appeals has been delayed. Therefore, the Applications for extension of time to file Cross objections will have to be allowed and time will have to be extended to file Cross objections. Hence, the Cross objections are considered on merits. 7. As stated earlier, the land bearing Survey No.961/1 to 5 and Survey No.972/1, 3 to 5 subject matter of Land Acquisition Reference No.166 of 1982 were notified for acquisition by a notification published on 21st April, 1977. However, the relevant date for determination of compensation taken by the Trial Court is 1st February, 1975 when the CIDCO was notified as Special Town Planning Authority for Nashik. As far as Land Acquisition Reference No.90 of 1984 is concerned, the land involved is Survey No.961/11 which was notified on 24th May, 1977. The purpose of acquisition is same in both the cases ash 11 fa-159n158xobjnwithca viz. the planned development and utilization of the Nashik Notified Area for Industrial, Commercial and Residential purposes. 8. A Division Bench of this Court decided a group of First Appeals on 18th and 19th October, 1993. The said group consisted of First Appeal No.862 of 1989 and several other connected Appeals. The said Appeals arose from a common judgment delivered by the Reference Court in Land Acquisition Reference No.207 of 1981 together with Land Acquisition Reference Nos. 152 and 153 of 1982 and several other References. The purpose of acquisition of the lands subject matter of the said References was the same and the lands subject matter of the References were also situated at Nashik. Notification under Section 6 of the said Act read with Section 126(2) of the said Act of 1966 was published on 20th July, 1978 and in these cases the market value has been fixed as of 1st February, 1975. The Land Acquisition Officer had divided the acquired lands into five groups based on its assessment. The Reference Court enhanced the market value and fixed the market value at Rs.11/-, Rs.10/-, Rs.9/-, Rs.8/- and Rs.7/-, respectively for groups -I to V. The Division Bench dealt with a group of Appeals preferred by the State Government and the Claimants. The argument advanced by the Claimants was that the market value fixed should be as of the date of publication of the Notification under Section 6 of the said Act read with Section 126(2) of the said Act of 1966. The ash 12 fa-159n158xobjnwithca Division Bench rejected the said submission and held that the Special Land Acquisition Officer and the Reference Court have rightly fixed the compensation as of 1st February, 1975. The Division Bench enhanced the market value of the lands falling in Group-I to Rs.18/- per sq. meter and the lands falling in Group-II to Rs.13/- per sq. meter. 9. Along with Civil Application tendered across the bar, the learned counsel appearing for the Claimants has tendered on record a copy of the judgment of the same Division Bench dated 5th November, 1993 by which the First Appeal Nos.891 of 1989 and 892 of 1989 were decided. The said Appeal arose out of the Awards made in Land Acquisition Reference Nos.152 and 153 of 1982 respectively which were decided by the common judgment of the Reference Court in Land Acquisition Reference No.207 of 1981 and other connected matters referred to above. Copies of the Reference Applications have been annexed to the said Application tendered across the bar. Land bearing Survey No.957/2 admeasuring 39.05 Ares was subject matter of Land Acquisition Reference No.152 of 1982 and the land bearing Survey No. 957/1 admeasuring 39.05 Ares was subject matter of Land Acquisition Reference No.153 of 1982. On the basis of the aforesaid judgment dated 18th and 19th October, 1993 delivered in First Appeal No.862 of 1989 and other connected Appeals, this Court fixed market value at the rate of Rs.18/- per sq. meters. The land bearing Survey No.957/1 and ash 13 fa-159n158xobjnwithca 957/2 admeasuring 39.05 Ares each were notified under Notification published on 21st April, 1977 under Section 6 of the said Act read with Section 126(2) of the said Act of 1966. As pointed out earlier, by the same Notification, the lands subject matter of Land Acquisition Reference No.166 of 982 were notified for acquisition. The Village Map of Nashik was produced before this Court. I had granted time to the learned AGP to verify the correctness of the Village Map and other documents produced by the Claimants. The correctness and genuineness of the documents is not disputed. Hence, the Civil Applications for leading additional evidence deserves to be allowed. Accordingly, it is allowed. The Map shows that Survey Nos.961, 972 and 957 are adjacent to each other. Survey No.961 is in between the Survey Nos.972 and 957. As pointed out earlier, in respect of a part of Survey No.957, the rate of Rs.18/- per sq. meter has been granted by this Court by treating the land as falling in Group-I. The distance between the main road and the acquired lands appears to be the nearly same as the distance between the lands subject matter of Land Acquisition Reference Nos.152 and 153 of 1982 and the main road. There is no reason to treat the acquired lands in the present case differently from the lands subject matter of the said two Appeals. Therefore, the decision of this Court granting market value of Rs.18/- per sq. meter will have to be applied to the present cases. While deciding First Appeal No.862 of 1989 and other Appeals, the Division ash 14 fa-159n158xobjnwithca Bench made deduction of 10% on account of development charges except in case of small acquired lands in layout. In these Appeals, the plots are not part of layout. Hence, the market value will be Rs.16.20 per sq. meter. 10. As far as the statutory benefits are concerned, in case of Land Acquisition Reference No.166 of 1982, the date of the Award under Section 11 of the said Act is 19th April, 1982. Therefore, in this case the Claimants will not be entitled to statutory benefits under Section 23(1-A). Hence, the Appeals preferred by the State Government will have to be dismissed and the Cross Objections will have to be allowed. 11. Hence, I pass the following order: (a) First Appeal No.158 of 1996 and First Appeal No.159 of 1996 are hereby dismissed with no orders as to costs. (b) Cross Objection Stamp No.18461 of 2011 and the Cross Objection Stamp No.18464 of 2011 are hereby allowed and total market value is fixed at the rate of Rs.16.20 ps. per sq. meter. ash 15 fa-159n158xobjnwithca (c) In Cross Objection Stamp No.18464 of 2011, the Claimants shall be entitled to statutory benefits under Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894. However, in Cross Objection Stamp No.18461 of 2011, the Claimants shall be entitled to the statutory benefits only under Sections 23(2) and 28 of the said Act. (d) The Claimants shall be entitled to proportionate cost of the References and the Cross Objections from the State Government. (e) Exercise of determining the total compensation payable in terms of the modified Award shall be completed by the Reference Court within a period of three months from the date on which the writ of the judgment is received by the said Court. (f) Additional amount shall be deposited by the State Government within a period of three months from the date on which compensation amount is determined by the Reference Court. ash 16 fa-159n158xobjnwithca (g) Civil Application Nos.226 and 224 of 2011 are hereby allowed. ( A.S. OKA, J )