1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 651 OF 1991 FIRST APPEAL NO. 651 OF 1991 FIRST APPEAL NO. 651 OF 1991 The State of Maharashtra ... Appellant (Orig. Opponent) Versus Ganesh Karsandas Patel since deceased through Legal heirs :- 1. Smt. Bhanuben Ganeshbhai Patel ) age 73 years, wife. ) 2. Shri Bharatbhai Ganeshbhai Patel) age 49 yrs. son. ) 3. Smt. Bharatiben L. Patel, ) age 46 years, daugghter ) 4. Shri Prabhudas Ganeshbhai ) Patel asge 44 yrs. Son. ) 5. Mrs. Neerubai Hitshi Patel ) age 41 yrs, Daughter. ) All R/o Post Talasari, Tal. ) Talasari, Dist. Thane. )..Respondents Mr. B.H.Mehta, AGP, for the State-Appellant. Mr. D.K.Ghaisas, Advocate, for the respoondents. 2 CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 22nd July, 2008. DATE: 22nd July, 2008. DATE: 22nd July, 2008. JUDGMENT JUDGMENT JUDGMENT 1. This is an Appeal preferred by the State of Maharashtra against the award passed by the learned Joint District Judge, Thane, enhancing the compensatiion amount in the Land Acquisition Reference No.76 of 1986. 2. Admitted facts are that the Divisional Controller, MSRTC, Thane, addressed a letter dated 28.3.1974 to the Collector, Thane, and made a proposal for acquisiton of land at village Talasari, Taluka Palghar, District Thane, for construction of S.T.Depot at Talasari. Therefore, a notification under Section 4(1) of the Land Acquisition Act was issued and published in the Maharashtra Government Gazette dated 3.6.1976. Thereafter, notice under Section 6 of the Land Acquisiton Act was issued and published on 31.5.1979. Three lands being Survey No.410/3 admeasuring 54.05 Ares, survey No.417/1 admeasuring 96.01 Ares, Survey No.459/1 admeasuring 18 hectares and 13 Ares and 2 other pieces of land were acquired by the award dated 4.8.1986 passed by the Special Land Acquisition Officer, Thane. 3 The respondent, who was the owner of the land, had claimed that about 20 Ares of land was in non-agricultural use and the remaining was Bagayat which was fully developed and was being used as garden land. The land is abutting Bombay-Surat National Highway and it has potential for non-agriculotural use. He claimed compensation at the rate of Rs.50/- per sq. metre for the non-agricultural land and Rs.20/- per square metre for agricultural land. The Land Acquisition Officer, however, found that certain transactions of sale of agricultural lands had taken place during the years 1972 to 1975 and taking into consideration those transactions, he fixed the price of land under acquisition at Rs.1600/- per acre or Rs.4,000/- per hectare. He also assessed the value of two building structures standing on the land. He also separately asessed the value of the trees standing on the land. The total value was assessed at Rs.1,19,862/-. To this was added 30% solatium and 12% additional component from the date of notification i.e. 3.6.1976 till the date of award. Thus, the total compensation awarded was Rs.2,99,932.60 ps. Being not satisfied with the award passed by the Land Acquisition Officer, the respondent-claimant made a reference before the Collector which was eventually submitted to the District Court, Thane. After hearing the parties, the learned 4 Joint District Judge, Thane, passed the impugned judgment dated 18.7.1990. The learned Joint District Judge, rejected the claim of the respondent-claimant for enhancement of compensation in respect of the two building structures as well as the trees standing on the land. However, the learned Joint District Judge found that the compensatioon awarded by the Land Acquisition Officer was very low in respect of the land taking into consideration the location of the land and the non-agricultural potentiality he fixed value of the land at Rs.5 per square metre. The total area acquired was 26,343 square metres and accordingly the market value of the land was assessed at Rs.1,31,715/-. The claimant had already received an amount of Rs.11,853/-. Thus, the enhanced compensation of Rs.1,19,862/- with the additional component, solatium and interest threon was awarded. The award passed by the learned Joint District Judge has been challenged in the present Appeal by the State Government. 3. Heard the learned Counsel for both parties. Perused the record and proceedings of the reference Court as well as the award passed by the Special Land Acquisition Officer. The following point arises for my determination :- POINT FINDING 5 1) Whether thre is any material No to intergfere in the impugned award passed by the learned Joint District Judge, Thane?. 4. The record reveals that initially, on behalf of the claimant Ganeshbhai Patel, his son Raghudas was examined as CW-1. Thereafter the claimant himself was also examined as CW-2 and he produced certain documents. CW-3 Jeevan Kulkarni was the private valuer of the land. He also submitetd valuation repoort. No document was produced nor any oral evidence was led by the State before the Court in support of the award passed by the Land Acquisition Officr. The learned Joint District Judge, relying on an authority of the Supreme Court in Chimanlal vs. Special Land Acquisition Oficder AIR 1988 Chimanlal vs. Special Land Acquisition Oficder AIR 1988 Chimanlal vs. Special Land Acquisition Oficder AIR 1988 SC 1652 SC 1652 SC 1652 came to conclusion that the award passed by the Land Acquisiton Officer is only in the nature of an offer and therefore the material used by the Land Acquisitrion Officer for making the valuation cannot be utilised by the Court unelss that material is proved before the Court. In view of this, the learned Judge did not take into consideration the transactions which were noted in the award passed by the Land Acquisition Officer. However, he proceeded to ascertain the value of the land on the basis of the proximity from time angle and proximity from jurisdiction angle. He also considered the facts which need to be borne in mind at 6 the time of ascertaining the value of the land. 5. CW-3 Jeevan Kulkarni had assessed the value of the land at Rs.4,000/- per guntha and Rs.40/- per sq. metre. He assessed the value of the two small pieces of land at the rate of Rs.3,000/- and Rs.2000/- per guntha. He pointed out that the land in question is situated abutting the Bombay-Surat National Highway. The frontage is 75 metres wide and the breadth is 225 metres. The acquired lands were having a farm house, a pump house, a well and number of fruit trees. Some portion of the land was already converted into non-agricultural use in 1973. The acquired land was fully developed and levelled with sufficient filling. It had electricity supply as well as water suply from the well. His evidence shows that the land is situated in Village Talasari which is taluka place. It appears that when the notification was issued, Talasari was a Village in Palghar Taluka but when the evidence was recorded or when the valuer Jeean Kulkarni paid visit to the spot for inspection in the year 1990, Talasari itself was a Taluka Headquarter.As per his evidence, at a distance of 5 kms. from the acquired land, Savroli Industrial Estate and Seema Industrial Development had come up and this reveals the non-agricultural potential value of the land. In the cross-examinatioon, he 7 deposed that in his valuation repot, Exhibit 25, the maximum price in the sale instances was Rs.1400/- per guntha and there was no sale transactrion during the relevant period to show that the price of the land was ranging from Rs.1400/- to Rs. 4,000/- per guntha. He also admitted that there was no material to support the valuation made by him at the rate of Rs.4,000/- per guntha. Taking into consideration the nature of evidence, the learned Joint District Judge did not place much reliance on the testimony and the valuation report submitted by the valuer. 6. Admittedly, no attempt was made on behalf of the Government or the Land Acquisition Officer to produce the relevant material before the reference Court or to examine witnesses to prove the said trnsaction. Mr. Mehta, the learned AGP rightly pointed out that in Land Land Land Acquisitiion Officer & Mandal Revenue Officer vs. Acquisitiion Officer & Mandal Revenue Officer vs. Acquisitiion Officer & Mandal Revenue Officer vs. Narasaiah JT 2001 (3) SC 157 Narasaiah JT 2001 (3) SC 157 Narasaiah JT 2001 (3) SC 157, the three-Judge Bench of the Supreme Court came to the conclusion that in view of the introduction of Section 51A in the Land Acquisition Act, a certified copy of the document registered under the Registration Act may be accepted as evidence of the transaction recorded in such document for the purpose of passing the award and therefore even if the witnesses were not examined to prove the transactions so recorded 8 in the registered documents. It is true that this authority was not available to the learned Joint District Judge when he passed the impugned judgment in 1990 nor the certified copies of the sale deed referred by S.L.A.O.i in the award were produced before him. However, in my opinion, if the Land Acquisition Officer has used and considered certain material and sale transactions while passing the award and if that material itself shows that the Land Acquisition Officer had not properly assessed the value and if that material supports the claimant, there should be no difficulty in looking to that material, though that may not be conclusive in itself. 7. In the present case, on perusal of the award passed by the Land Acquisition Officer, I find that he had quoted in all 11 sale transactions. Out of them, 8 transactinos were of December, 1972 wherein average valuatioon of the land was Rs.400/- to Rs.1,000/- per acre. Entry No.9 pertains to the sale instance dated 12.6.1974 wherein 9 acres and 28 gunthas land was acquired and the price was Rs.1500/- per acre. Thereafter, entry No.10 is about sale transaction dated 1.11.1974 where land was sold at the rate of Rs.1200/- per acre. The last transaction was dated 14.8.1974 wherein 10 gunthas land was sold at Rs.3,900/- per acre. 9 It is true that it was a small piece of land. There is no mention of location and quality of these lands in the award. The Land Acquisition Officer considered the transactions and came to the conclusion that that the land was sold at the rate of Rs.1500/- per acre and in this case, he assesseed the value of the land at Rs.1600/- per acre or Rs.4,000/- per hectare on the date of the notification. If the contents of the award are carefully perused, it appears that the Land Acquisition Officer himself had noted that the land is situated on the Bombay-Surat National Highway and it has got the frontage facing the Highway that formerly, the Village Talasari was situated in the interior part of the Districdt and besides that most of the part was Adivasi,that there were also restrictions on sale transactions and, therefore, the rates were low. However, as per the contents of the award, consequent upon the introduction of the National Highway, the road lands had gained better situation from the non-agricultural point of view. He noted that the land was previously Wakars’ land, however, whole of the land was developed into garden and there were no comparable sales of garden land in the Village Talasari. Having said that there were no comparable sales of the garden land, he proceeded to assess the value of this land on the basis of the sale transactiions of the years 1972 to 10 1975. There is no material about the location and use of the lands which were sold during 1972 to 1975. The land under acquisiton in this case had high non-agricultural potentiality because of its location and long frontage running with the National Highway. 8. The contents of the award about the condition of the land provide corroboration to the valuation report that the land was well developed and about 20 gunthas of land was already in use for non-agricultural purpose and remaining land had non-agricultural potential. The learned Joint Didstrict Judge ignored the fact that about 20 gunthas land was being used for non-agricultural purpose on the ground that the Tahsildar was not competent to pass the order for conversion of agricultural land to non-agricultural land. However, fact remains that the Tahsildar of Talssari had passed an order on 21.2.1973 i.e.more than 3 years before the notification under Section 4 and as per that order, 20 gunthas land out of survey No.410/A was allowed to be converted to non-agricultural use. The land revenue record also reveals that the said land was being used as a touring talkies. In the conversion order the Tasildar had specificlly stated that powers were delegated to him under Sec.441 of the Maharahstra Land Revenue Code to grant permission for 11 non-agricultural use. This fact was not disputed by the Government. Thus, it was a factual position that 20 gunthas land was allowed to be converted to non-agricultural use at least 3 years before the notification under Sec.4 and it was being used for non-agricultural purpose. IN view of the fact land was being used for non-agricultural purpose and it was well developed as garden land and its value could not be compared with the value of the land which was situated in the interior portion and the condition and use of which was not on record. 9. Taking into consideration the material on record and the fact that the land is situated abutting the Natiional Highway having frontage of 75 metres, it was well developed land and 20 gunthas land was being used for non-agricultural purpose and touring talkies was being run thereon and the remaining land was also developed as a garden land, I find that the assessmenet of value made by the Land Acqisitiion Officer could not be supported. The impugned Judgment records that even the District Government Pleader had conceded that the valuation made by the Land Acquisition Officer was low. Taking into consideration this material and in view of the observations made by the Land Acquisitiion Officer also that no comparable transactions were available, it 12 is difficult to find any fault with the assesment made by the learned Joint District Judge. It is true that the Land Acquisition Officer had valued the land at Rs.4,000/- per hectare while the Joint District Judge assessed the value at Rs.50,000/- per hectare, but taking into consideration the facts and circumstances noted above, this valuation cannot be said to be excessive. At least there is no material on record to show the assessment is improper. Therefore, I find that there is no material to justify interference in the impugned Judgment and order. 10. In the result, the Appeal stands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)