- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO.119 OF 1992 Damodar Ramchandra Gole, ) since deceased by his heirs:- ) (1A) Smt.Sharadini D.Gole, ) (1B) Miss Surhuda D. Gole, )..Appellants (Org.Claimants) Versus 1. The Special Land Acquisition ) Officer No.2, Pune, Now at ) Municipal Engineering Offices, ) Ghole Road, Pune 411 004. ) 2. The Municipal Corporation of ) the City of Pune, Corporation ) Building, Shivajinagar, ) Pune - 411 005. ).. Respondents (Org.Opponents) -- Shri P.N.Karlekar for the Appellants. Smt.G.P.Mulekar, AGP for the Respondent No.1. S/Shri R.S.Khadapkar holding for R.G.Ketkar for the Respondent No.2. -- CORAM : ABHAY S. OKA, J DATED : 13TH MARCH, 2008 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : - 2 - 1. The submissions of the learned advocates appearing for the parties were heard on 11th February, 2008. The appellants have taken an exception to the judgment and award dated 19th February, 1990 passed by the learned Extra Joint District Judge, Pune, in a Reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act"). The appellants are the claimants. The Respondent No.1 is the Special Land Acquisition Officer and Respondent No.2 is the Acquiring Body. 2. It will be necessary to refer to the facts of the case in brief. The acquisition relates to the land bearing CTS No.1421 admeasuring 1450.20 sq.metres, situated at Kasba Peth, Pune. A notification dated 7th May, 1974 was issued under Section 4 of the said Act read with Section 126(4) of the Maharashtra Regional and Town Planning Act, 1966. The property was acquired as per the development plan of the City of Pune for construction of a road. The Special Land Acquisition Officer made an award on 31st March, 1978 by which he offered the market value at the rate of Rs.45/- per sq.metres. The appellants/claimants did not accept the said award and at their instance, a reference was made under Section 18 of the said Act. The claim made in the reference - 3 - for market value was at the rate of Rs.12/- per sq. ft.. By the impugned judgment and award, the Reference Court has fixed the market value at the rate of Rs.55/- p.s.m. Thus, the Reference Court enhanced the market value by Rs.10/- per sq.metres. The Reference Court also granted statutory benefits under Section 23(2) and Section 28 of the said Act as amended in the year 1894. 3. In the appeal, the claim made by the appellants is for the market value at the rate of Rs.195/- p.s.m. i.e. Rs.18/- per sq.feet. 4. I have heard the submissions of the learned advocates for the parties. Shri Karlekar, the learned advocate appearing for the appellants has taken me through the oral as well as documentary evidence on record. His main submission is that the sale instance at Exhibit-55 was comparable in all respects and the same could not have been discarded by the reference court. He submitted that the reference court had discarded the said sale instance on the ground that the purchaser under the said sale instance was a builder and developer who had taken the property for construction of flats. He submitted that the only issue was whether the said transaction at Exhibit-55 - 4 - was a genuine sale transaction. He submitted that there is nothing on record to show that the said transaction (Exhibit-55) was a speculative sale transaction. He submitted that the land subject matter of sale instance Exhibit-55, was situated in the close vicinity of the acquired land in the same area and the said land was also situated abutting the Mutha river. He submitted that there is no material difference in the area of the land subject matter of sale instance at Exhibit-55 as well as the area of the acquired land. He submitted that even assuming that the acquired land was situated at a lower level, at highest, necessary deduction can be made on account of the expenditure incurred for construction of the columns for bringing the acquired land to the level of adjoining Gharpure Hospital Road. He invited my attention to the report of an expert Shri Gangadhar Dattatraya Karkare as well as the Map prepared by him. He invited my attention to the evidence of Shri Karkare ( Exhibit-75 ) and submitted that there was no challenge to the opinion of Shri Karkare that the land subject matter of Exhibit-55 is inferior in quality than the acquired land. He invited my attention to the other sale instances which were relied upon by Shri Karkare and which were produced and proved in the evidence. He submitted that the said sale instances - 5 - were very relevant for determination of market value of the acquired land. 5. The learned AGP appearing for the Respondent No.1 submitted that the learned Trial Judge has rightly discarded the sale instances relied upon by the appellants as the same were not comparable. She submitted that the land subject matter of the sale instance Exhibit-55 was better located and was in a better position for the purpose of development. She submitted that the acquired land was at a lower level. The learned advocate appearing for Respondent No.2 - Acquiring Body, pointed out that there was no direct access from the acquired land to the adjoining Gharpure Hospital Road whereas the land subject matter of Exhibit-55 was accessible by roads on its two sides. He submitted that the acquired land was affected by the same 100 ft. wide road. Infact, the construction activities on the acquired land were prohibited by the second respondent/Corporation which had considerably reduced the market value of the acquired land. 6. I have given careful consideration to the submissions made by the learned advocates appearing for the parties. The relevant date in the present - 6 - case is 20th June, 1974, i.e. the date of publication of the notification under Section 126(4) read with Section 6 of the said Act. It will be necessary to refer to the evidence of the witnesses examined by the claimants. 7. The original claimant examined himself and stated that there is a road on the western side of the acquired land by the name Thorala Shaikh Salla Road which is 44 ft. wide road. In the cross-examination, he admitted that the level of the acquired land was 16 ft. below the level of adjoining Gharpure Road. He stated that the vehicles are plied on the said Thorala Shaikh Salla Road. He denied that during 1961 Panshet flood, the acquired land was affected. He admitted that from 1961 to 1966, the acquired land was within the high flood limits and till 1966, it was not permissible to build upon the acquired land. 8. Shri Gangadhar Dattatraya Karkare, a Civil Engineer, who was holding a Diploma of Associateship of Institute of Town Planners, Delhi, deposed that he is an expert in valuation. He stated that he retired as a Deputy Director of Town Planning in the year 1985 and thereafter he had appeared as an expert valuer in 25 to 30 land acquisition cases. He proved the - 7 - valuation report in evidence which is marked as Exhibit-76. He also proved the Maps marked as Annexure-A and Annexure-B to the valuation report. He stated that the acquired land is situated on the southern bank of Mutha river and the same is at the south-east corner of Lloyd Bridge ( now known as Shivaji Bridge). He stated that the Thorala Shaikh Salla Road starts from Shaniwar Wada and by the said road, the acquired land was directly accessible. He stated that the said road was 30 to 35 ft. wide. He stated that Gharpure Hospital Road runs along with the southern boundary of the acquired land and the said road as well as Thorala Shaikh Salla Road cross each other at different levels. He stated that Gharpure Hospital Road is about 16 ft. above the road level of Thorala Shaikh Salla Road. 9. In paragraph 6 of his deposition, he stated that after Panshet floods of 1961, certain restrictions were placed on the construction of the buildings on the properties along the Mutha river and the said restrictions were withdrawn in the year 1966. He stated that a proposal for construction of 100 ft. wide road on both the sides of Mutha river was incorporated in the development plan. The second respondent/Corporation did not permit any construction - 8 - on the said acquired land. 10. He stated that after construction of columns, a building can be constructed on the acquired land which will have the benefit of frontage on the Gharpure Hospital Road. He stated that thereafter the property can be used for commercial as well as residential purposes. 11. The said expert witness himself opined that the said sale instances Exhibits- 77, 78 and 79 were not relevant. It is, therefore, not necessary to refer to the said sale instances. He relied upon the sale instance at Exhibit-57 which is dated 21st April, 1966 and another sale instance at Exhibit-58 which is also of 21st April, 1966. Though Shri Karkare stated that the said sale instances were relevant, the same will have to be discarded for the simple reason that the relevant date in the present case is 20th June, 1974. 12. Another sale instance at Exhibit-59 referred to by Shri Karkare is of a Sale Deed dated 7th September, 1973 in respect of the land bearing CTS No.130 Shaniwar Peth, admeasuring an area 199.28 sq.metres. He however stated that the said sale - 9 - instance was relevant only for the limited purpose of showing the trend of market value in the locality. The witness has not at all deposed that the said instance is of a comparable land. Therefore, the said sale instance need not be considered. 13. What remains to be considered is the sale instance at Exhibit-55. The said sale instance relates to the land bearing CTS No.1309 A of Kasba Peth admeasuring 292.6 sq.metres. The said sale instance is of a Sale Deed dated 26th April, 1973 executed by Mahesh Govind Barve in favour of Anandrao B. Pol. The consideration mentioned in the sale instance is Rs.35,000/-, i.e. at the rate of Rs.11.12/- per sq.ft. which is equal to approximately Rs.120/- per sq.metres. The Sale Deed discloses that the agreement for sale was executed between the parties on 30th July, 1972. Thus, the date of bargain will have to be treated as 31st July, 1972. 14. It will be necessary to refer to the deposition of Shri Karkare as regards the location of the property subject matter of the said sale instance. In paragraph 10, he has stated thus:- "I relied on this sale instance for valuing - 10 - the acquired property because the concerned property is in the close proximity of the acquired land it is situated on the southern bank of river Mutha; it is similarly at lower level from Gharpure Hospital Road, and it is also similarly affected by the same 100 feet wide road of the proposed development plan. The land at exh. 55, is inferior to the acquired property, in respect of the access which is by a very narrow lane; there is no possibility of developing the property to the level of Gharpure Hospital Road, since the property cannot get the frontage on Gharpure Hospital Road, because there is intervening property C.T.S.No.1314, and there were about 25 joint owners of the said property from whom the purchaser purchased it. The said sale instance is about 2 years prior to the relevant date in this case. Though the acquired property is in large area, it could have been divided into several parts, without any difficulty, once it is brought to the level of the Gharpure Hospital Road." 15. In paragraph 11, the witness deposed thus:- - 11 - "I have made the positive allowance of 10 per cent for difference in the access; 20 per cent for development potentiality of the acquired property; 5 per cent for large number of vendors in the concerned sale instance and 25 per cent for two years period over Rs.120/- per square metre. The total allowance comes to 60 per cent for Rs.120/-. Therefore, the market value of the property would come to Rs.120/- plus Rs.72/- i.e. Rs.192/- per square metre, i.e. Rs.17.86 ps. per square foot. I have estimated the market value of the acquired property in found figure. As Rs.195/- per square metre i.e. Rs.18/- per square foot. The price paid for in the sale instance Exh.55 is more, but, according to me it is not fancy or speculative, because the builder though gives more price, but, he is in position to make use of the whole floor Space, Index, and as such, he uses the full potential of the land against a private purchaser who is unable to use the full potential of the land." 16. In the cross-examination, he denied the suggestion that the land subject matter of Exhibit-55 - 12 - had better location and situation than the acquired land. He stated that the said land, subject matter of Exhibit-55, has a road of 10 ft. width on both the sides. He, however, stated that the said property cannot be said to have better access than the acquired property. 17. It will be necessary to refer to the report submitted by Shri Karkare which is at Exhibit-76. In the report, he has stated that the land subject matter of Exhibit-55 is in a close proximity of the acquired land. The said fact is clear from the Map Annexure-A. It shows that both the acquired land and the land bearing CTS No.1309A are situated by the same side of Mutha river and between the said two properties, there are other three properties i.e. CTS Nos.1315, 1316 and 1317-B. The said Map discloses that Dr.Gharpure Hospital Road is closer to the acquired land than the land subject matter of Exhibit-55. There is an approach road available to the said land for approaching Gharpure Hospital Road. 18. Perusal of the document Exhibit-55 shows that the bargain was made on 30th July, 1972 and from time to time, the consideration was paid by the purchaser. The reason given by the learned Judge for discarding - 13 - the sale instance at Exhibit-55 is that the purchaser under the said sale instance was a Contractor/Builder who had taken the property for construction of flats. This is the main reason given for discarding the said sale instance at Exhibit-55. The second reason given is that the area of Exhibit-55 is approximately 1/3rd of the area of the acquired land. The learned Judge has drawn a conclusion that the purchaser must have paid higher price as he had taken the land subject matter of sale instance at Exhibit-55 for construction of flats. In fact, there is no foundation for the said observation made by the learned Judge in the evidence on record. That is not even a suggestion given to the witness Shri Karkare. 19. As pointed out earlier, the land which is subject matter of Exhibit-55, is in the close vicinity of the acquired land and it is situated by the side of Mutha river as in the case of acquired land. However, the distinguishing features are that :- (i) Area of the acquire land is much more than the land subject matter of Exhibit - 55; (ii) The acquired land is at a very low - 14 - level as compared to the land subject matter of Exhibit-55, and therefore, for the purpose of developing the acquired land, it was required to be brought to the level of the adjoining Gharpure Hospital Road by constructing concrete columns; (iii) There was no direct access available to the land subject matter of Exhibit-55 for approaching Gharpure Hospital Road and the acquired land though situated at 16 ft. below the level of Gharpure Hospital Road, it was abutting the Gharpure Hospital Road. 20. It is obvious that the land subject matter of the sale instance at Exhibit-55 was comparable to the acquired land. The area of the land subject matter of Exhibit-55 was 292.6 sq.metres whereas the area of the acquired land is 1450.2 sq. metres. In view of the settled position of law, considering the large area of acquired land, the appropriate deduction will have to be made which is normally 33%. In the present case, the acquired land is below 16 ft. from the Gharpure - 15 - Hospital Road, and therefore, either by doing filling work or by taking concrete columns, the land would have been required to be brought to the level of Gharpure Hospital Road for having a direct frontage on the said road. It must be noted here that the market value reflected from Exhibit-55 is of July, 1972 i.e. approximately two years prior to relevant date in the case. Considering the extra cost which would have been required to be incurred for bringing the property to the level of Gharpure Hospital Road, instead of usual 33% deduction, 50% deduction will have to be made from the market value reflected from the said sale instance at Exhibit-55. After making the said deduction, the market value will be approximately Rs.60/- per sq. metres. Therefore, to that extent, the appellants must succeed. Insofar as the grant of statutory benefits is concerned, there is no dispute. In this case, the appellants will not be entitled to benefit of Section 23(1-A) of the said Act as the award has been made under Section 11 of the said Act prior to 30th April, 1982. 21. Hence, I pass the following order. 1. The appeal is partly allowed. - 16 - 2. The impugned judgment and award is modified to the extent that the appellants will be entitled to a total market value at the rate of Rs.60/- per sq. metre inclusive of the market value at the rate of Rs.45/- per sq. metres awarded under Section 11. 3. In addition to the said market value, the claimants will be entitled to statutory benefits under Section 23(2) and Section 28 of the Land Acquisition Act, 1894 as amended in the year 1984. 4. The claimants will be entitled to proportionate costs of the reference as well as this appeal from the first respondent. 5. The exercise of calculating the compensation payable to the claimants in terms of the modified award shall be completed by the learned Trial Judge within a period of four months from the date of receipt of the writ of this judgment. - 17 - 6. The office will expeditiously despatch the writ as well as record and proceedings of this case. ( ABHAY S. OKA, J )