-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.192 OF 1992 APPEAL NO.192 OF 1992 APPEAL NO.192 OF 1992 Sukir Kalya Gharat (since deceased through L.Rs.) 1a) Shantaram Sukir Gharat 1b) Shivram Sukir Gharat 1c) Dattaram Sukir Gharat 1d) Kamlibai Sukir Gharat 1e) Anandibai Sukir Gharat 1f) Tulkaram Sukir Gharat ...Appellants vs. 1.The Special Land Acquisition Officer, Panvel 2.The State of Maharashtra ...Respondents WITH WITH WITH FIRST FIRST FIRST APPEAL NO.1061 OF 1991 APPEAL NO.1061 OF 1991 APPEAL NO.1061 OF 1991 State of Maharashtra ...Appellant vs. Sukir Kalya Gharat (since deceased through L.Rs.) 1a) Shantaram Sukir Gharat 1b) Shivram Sukir Gharat 1c) Dattaram Sukir Gharat 1d) Kamlibai Sukir Gharat 1e) Anandibai Sukir Gharat 1f) Tulkaram Sukir Gharat ...Respondents Mr.R.S.Thakur for the Applicant in F.A.No.192/2001 and for the Respondent in F.A.No.1061/1991 Mr.B.H.Mehta A.G.P. for State for the Respondents in F.A.NO.192/2001 and for the Appellant in F.A.No.1061/2001 CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 27, 2008 : FEBRUARY 27, 2008 : FEBRUARY 27, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned Advocates for the parties were heard on the last date. The Appeals can be disposed of -2- by a common Judgment as the challenge in these two Appeals is to the same Judgment and Award passed by the trial court. 2. By the impugned Judgment and Award, the reference under section 18 of the said Act of 1894 has been disposed by the reference court. The acquisition relates to the land admeasuring 20,140 sq. meters situated at Village Murbi, Taluka Panvel, District Raigad. A notification under section 4 of the said Act 1894 was issued on 3rd February 1970 by which the acquired land was notified for acquisition for the public purpose for setting up of the satellite city of Navi Mumbai. The award under section 11 of the said Act of 1894 was made on 4th September 1995. The Special Land Acquisition Officer offered the market value at the rate of Rs.1/- per sq. meter. As the compensation was not accepted by the claimant, at his instance reference under section 18 of the said Act was made. In the reference, compensation at the rate of Rs.15/- per sq. meter has been claimed by the claimants. By the impugned Judgment and Award, the market value at the rate of Rs.12/- per sq. meter has been fixed by the reference court. 3. First Appeal No.192 of 1999 has been preferred by the claimant for seeking enhancement in compensation. First Appeal No.1061 of 1991 is filed by the State of Maharashtra for quashing and setting aside the Award. -3- 4. The submission of the learned A.G.P. for the State is that there was no evidence adduced by the claimant of comparable sale instances to justify the market value fixed at the rate of Rs.12/- per sq. meter. According to the learned A.G.P., the market value fixed is exorbitant and there is no evidence to support the market value. 5. The learned counsel for the claimants has placed reliance on the decision of the Division Bench of this court dated 16th March 2000 in the case of Abdul Aziz Vs. Special Land Acquisition Officer (FA.No.875 of 1985) and other connected matters. He submitted that considering the evidence of the expert valuer and considering the location of the acquired land, the market value of the acquired land on the relevant date was not less than Rs.17/- per sq. meter in terms of the decision of the Division Bench which has attained finality. 6. I have carefully considered the submissions. Perusal of the Judgment of this court in the case of Abdul Aziz (supra) shows that this court dealt with the Appeals arising out of Awards under section 18 of the said Act in respect of the various lands situated at villages Pendhar, Taloja, Belpada, Kharghar, Owe, Kalamboli etc. in Taluka Panvel, District Raigad. The lands subject matter of the Appeals before the Division Bench were also notified by a notification under section 4 of the said Act dated 3rd February 1970. The said -4- lands subject matter of the Appeals before the Division Bench were also acquired for the same public purpose of setting up satellite city of Navi Mumbai. Depending upon the location of the acquired land and considering the distance from Mumbai Pune national highway, the Division Bench has fixed the market value of the acquired lands. In so far as the village Taloja is concerned, in case of acquired lands which were at a close distance of national highway, the market value has been fixed at the rate of Rs.25/- per sq. meter and in case of lands far away from the highway, the market value at the rate of Rs.17/- has been fixed. It is not in dispute that the said Judgment of this Court has attained finality in the sense that none of the parties to the Appeal have challenged the said Judgment and Order. In the case of Nama Padu Hudar and others vs. State of Maharashtra in First Appeal No.754 of 1986, another Division Bench of this court dealt with similar Appeals arising out of the Awards under section 18 of the said Act. The lands were acquired for the same public purpose on the basis of notification issued on the same date. The Division Bench has fixed the market value of the acquired lands subject matter of the Appeals situated at villages Panvel and Kamothe of Taluka Panvel on the basis of its distance between the Bombay Pune national highway. The decision of the Division Bench has been expressly approved by the Apex Court by its decision dated 6th March 2006 in Civil Appeal No.1557 of 2006 (Shantadevi H. Ruparel Vs. Special Land Acquisition -5- Officer). The Judgment of this Court in the case of Abdul Aziz (supra) has not been challenged by the State of Maharashtra. Hence, the decision of the Division Bench relied upon by the counsel for the claimant in the case of Abdul Aziz (supra) is certainly relevant for deciding the market value in the present Appeal. 7. The original claimant stepped into witness box who deposed about the location of the acquired land. Apart from the original claimant, Shri Jivan Kulkarni has been examined by the claimant as an expert valuer. The valuation report submitted by Shri Kulkarni was proved in his evidence and was marked as Exh.28. In the said report at Exh.28 Shri Kulkarni has stated that the Bombay Pune national highway is at the distance of 1525 sq. meters. from the acquired land and the Sion Panvel highway is at the distance of 280 metes. In so far as the said distances are concerned, there is hardly any challenge in the cross examination of Shri Jivan Kulkarni. Therefore, the distances mentioned in the report can be safely accepted as a correct. 8. The Award under section 11 of the said Act and the impugned Judgment mentions that the said land is situated in village Murbi.It must be stated here that the learned Reference Court has referred to the evidence of the claimants as well as the evidence of Shri Jivan Kulkarni in which they -6- have stated that the acquired land was situated within the limits of village Taloja. In paragraph 3 of the deposition of Shri Kulkarni, he has stated that the said land is situated in village Taloja. There is no cross examination of both the witnesses on this aspect. 9. In the case of Abdul Aziz in respect of the lands at village Taloja which are situated far away from the said national highway, the market value has been fixed at the rate of Rs.17/- or Rs.18/- per sq. meter. Hence, the claimant will be entitled to market value of Rs.17/- per sq. meter. In the present case, the claim in the reference was in the sum of Rs.15/- per sq. meter. Though in the Appeal preferred by the claimant he has prayed for more amount, there is no application made for amendment of the claim made in the reference. Hence, the claimant cannot get market value at the rate exceeding Rs.15/- per sq. meter. Therefore, the Appeal preferred by the State of Maharashtra must fail and the Appeal preferred by the claimant deserves to be partly allowed. In this case, there is no dispute about the statutory benefit. 10. Hence, I pass the following order : i) First Appeal No.1061 of 1991 is dismissed with no order as to costs. ii) First Appeal No.192 of 1992 is partly allowed. The -7- impugned Judgment is modified by directing that the claimants will be entitled to market value at the rate of Rs.15/- per sq. meter. In addition to the said market value, the claimants will be entitled to statutory benefits under section 23(1-A), 23(2) and 28 of the said Act of 1894. iii) The claimants will be entitled to proportionate costs of the reference as well as of the First Appeal No.192 of 1992 from the State of Maharashtra. The exercise of calculating the amount payable on the basis of the modified Award shall be completed by the Reference Court within a period of four months from the date of receipt of the writ of this order. iv) Writ to be sent down immediately. JUDGE JUDGE JUDGE