1 fa572-691withxob ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.572 OF 1994 WITH CROSS OBJECTION ST.NO.5940 OF 1995 The State of Maharashtra (Through the Special Land Acquisition Officer,Nashik) ...Appellant vs. 1 Dadasaheb Narayan Deshmukh (since deceased through L.Rs.) 1(a) Pakirrao Dadasheb Deshmukh 2 Bhausaheb Narayanrao Deshmukh 3 Babasaheb Narayanrao Deshmukh 4 Prataprao Narayanrao Deshmukh ...Respondents ALONG WITH FIRST APPEAL NO.691 OF 2005 The State of Maharashtra (through Special Land Acquisition Officer No.II Nashik) ...Appellant vs. 1 Prataprao Narayanrao Deshmukh 2 Sou Vijaya Prataprao Deshmukh 3 Babasaheb Narayanrao Deshmukh 4 Sou Pushpatai Balasaheb Deshmukh 5 Satyan Babasaheb 6 Nitin Babasaheb 7 Dadasaheb Narayanrao Deshmukh 8 Bhausaheb Narayanrao Deshmukh (since deceased through L.Rs) 8A Smt.Jijabai Bhausaheb Deshmukh 8B Shivaji Bhausaheb Deshmukh 8C Pradip Bhausaheb Deshmukh 8D Sou Rajani Ambaas Deshmukh 8E Sanjivani Milind Deshmukh 9 Fakirrao Dadasaheb Deshmukh 10 Sou.Aruna Fakirrao Deshmukh 11 Yyati Fakirrao Deshmukh 12 Sou Jijabai Bhausaheb Deshmukh 13 Shivaji Bhausaheb Deshmukh 14 Pradeep Bhausaheb Deshmukh 15 Padmabai Anna Saheb Bhosale 16 Smt.Ratnabai Daulatrao Deshmukh (since deceased through L.Rs) 16A Bhimabai Vishvasrao Deshmukh 16B Doulatrao Tatyaba Deshmukh ...Respondents 2 fa572-691withxob Mr.A.R.Patil, A.G.P for the appellant Mr.Anilkumar Patil for the respondent nos.1a, 3 and 4 CORAM : A.S.OKA,J. DATE : MARCH 4,2011 JUDGMENT : 1 These two appeals can be conveniently disposed of by a common Judgment. The appeals preferred by the State of Maharashtra take an exception to the Judgments and Awards made in references under section 18 of the Land Acquisition Act (hereinafter referred to as the said Act). First Appeal no.572 of 1994 takes an exception to the Judgment and Award in L.A.R.No. 92 of 1984. Along with the said reference, L.A.R. no.93 of 1984 was also disposed of which was a reference under section 30 of the said Act. The subject matter of the reference is land bearing survey no.232 Hissa No.6 situated at Village Deolali, District Nashik. The area of the acquired land is 40 Areas. Notification under section 4(1) of the said Act was issued on 22 nd February 1973. By an award under section 11 of the said Act, the market value was offered at the rate of Rs.35,710/- per Hetare. 2 As far as First Appeal no.691 of 2005 is concerned, the land subject matter of the acquisition is Survey no. 232/6/1 to 232/6/8 totally admeasuring 12,600 sq. meters situated at Deolali in District Nashik. Notification under section 4(1) of the said Act was published on 7 th February 1983. The Special Land Acquisition Officer by an Award under section 11 of the said Act offered the market value at the rate of Rs.40/- per sq. meter. The challenge in this Appeal is to the Judgment and Award in L.A.R.No. 210 of 1987 which was a reference under section 18 of the said Act. 3 By the impugned Award subject matter of the First 3 fa572-691withxob Appeal no.572 of 1994, the Reference Court fixed the market value of the acquired land at Rs.30/- per sq meter. The respondents-claimants filed cross objections claiming market value at the rate of Rs.50/- per sq. meter. 4 As far as First Appeal no.691 of 2005 is concerned, the Reference Court fixed the market value at the rate of Rs.110/- per sq. meter. In both the cases statutory benefits were granted by the Reference Court under section 23(1-A), 23(2) and 28 of the said Act. 5 The learned A.G.P appearing for the appellant invited the attention of the Court to the findings recorded by the Reference Court and the evidence adduced by the parties. He submitted that the respondents- claimants have not adduced the evidence in the form of comparable sale instances. Inviting the attention of the Court to the finding recorded in L.A.R no.92 of 1984, he submitted that the Reference Court has relied upon the Awards which are not in respect of the comparable lands. As far as L.A.R.no.210/1987 is concerned, the learned A.G.P pointed out that the sale instances considered by the trial Court are in respect of very small plots of lands which were developed plots of lands. He submitted that the sale instances are in respect of the plots which were to be used for industrial use. He submitted that the said sale instances were not in respect of the comparable lands and therefore, the same could not have been relied upon. He submitted that even assuming that said sale instances could have been relied upon, the deduction of 40% made by the Reference Court is on the lower side and the deduction of at least 75% ought to have been made for arriving at the market value. 4 fa572-691withxob 6 The learned counsel for the respondents in First Appeal no.572 of 1994 in support of the cross objections submitted that the respondents have adduced evidence of awards under section 18 of the said Act in respect of the comparable lands. He submitted that in one of the Awards which is relied upon by the Trial Court the relevant date is of 1974 and market value fixed is Rs.45/- per sq. meter. He submitted that for determining the market value as of 22nd February 1973 on the basis of the said Award, the market value could not have been brought down to Rs.30/- per sq. meter and at highest, a deduction of only 10% could have been made. He, therefore, submitted a case is made out for granting enhancement. He supported the impugned Award subject matter of First Appeal no.691 of 2005. 7 I have given careful consideration to the submissions. As stated earlier, the lands subject matter of both the appeals are situated in Village Deolali which is a part of the larger Nasik city comprising of Nasik Road and Deolali. 8 In L.A.R no.92 of 1984, one of the claimants Prataprao stepped into witness box. He stated that the acquired land was adjacent to railway line. There was a vegetable market and shopping center on the other side of the acquired land. He stated that there were three roads adjacent to the acquired land. He referred to sale instances of the lands of Mr.Patole and Mr.Bhattad. In the cross examination, the witness admitted that Talegaon- Samangaon road is situated to the south of the acquired land. He admitted that survey no.251 is situated to the south of the said road and survey no.231 was situated towards east which is adjacent to the acquired land bearing survey no.232 Hissa no.6. Though the 5 fa572-691withxob witness stated in the examination-in-chief that he was to examine Mr.Patole and Mr.Bhattad whose sale deeds were relied upon, the said witnesses were not examined. It must be stated here that the Reference Court has considered other evidence in the form of Awards under the said Act which were produced and proved by the respondents. The learned trial Judge kept the Award at Exh.31 out of consideration as the relevant date in the said case was after the period of 10 years from the date on which notification under section 4(1) in the present case was published. In case of Award at Exh.32, relevant date was nearly six years after the date of notification and therefore, the same was kept out of consideration. The Reference Court has considered the award under section 11 of the said Act at Exh.39 wherein the various lands subject matter of the Awards were notified under section 4(1) on 20 th June 1974, 13 th February 1975 and 15 th January 1976. The market value was fixed therein at the flat rate of Rs.45/- per sq. meter. 9 The map at Exh.14 showed that the lands subject matter of Award at Exh.39 were closer to Gaothan Deolali as compared to acquired land subject matter of the present Appeal. However, the learned trial Judge observed that the land subject matter of the appeal was non-agricultural land on the date of notification under section 4(1) of the said Act. For determining the market value as on 22 nd February 1973, the learned trial Judge has relied upon the said Award of the Special Land Acquisition Officer at Exh.39 wherein the earliest relevant date of notification under section 4(1) of the said Act in respect of one of the lands was 20th June 1974. As stated earlier, the land subject matter of the award is closer to Deolali Gavthan than the land subject matter of the present Appeal. The question before the 6 fa572-691withxob Reference Court was that for determining the market value as on 22nd February 1973, what should be the deduction made from the market value determined as on 20th June 1974. As the lands are situated at Deolali which is a prominent urban area, the rate of growth of market value can be taken at 15% per year. In the present case, one of the negative factors is that the acquired land is away from Deolali Gaothan as compared to the land subject matter of the Award at Exh.39. Moreover, the lands subject matter of the Award at Exhibit 39 were smaller portions of the land which wee notified under section 4(1) in June 1974, February 1975 and January 1976 for which a flat rate was applied at Rs.45/- per sq.meter. In the circumstances, the market value was slashed down to Rs.30/- per sq meter as of 22 nd February 1973. The said market value is reasonable and cannot be faulted with. 10 Now, turning to the First Appeal no.691 of 1995, the relevant date is 7 th February 1983. The respondents examined one of the claimants Prataprao and one more witness Gopal Laxman Rajendra. As far as evidence of Prataprao is concerned, the relevant portion of his deposition is that there were residential houses on the acquired land and Samangaon road was towards west side of the acquired land. 11 The witness Gopal was examined to prove the sale instances. The sale deed dated 11th August 1983 at Exh. 55 is in respect of the plot no.2 admeasuring 1000 sq. meters. The witness proved the said sale deed. He also proved the sale deed dated 21st January 1984 at Exh.56 in respect of plot no.1 admeasuring 1000 sq. meter. In both the cases the value reflected from the sale deeds is Rs. 200/- per sq. meter. 7 fa572-691withxob The witness Gopal admitted that the purchaser under the sale deed at Exh.55 purchased the plot for industrial purpose. He admitted that as far as sale deed at Exh.56 is concerned, recital therein that the construction of compound wall was completed, is correct. 12 The area of the acquired land is 12600 sq meters. Two sale deeds at Exh.55 and 56 relied upon by the respondents-claimants were in respect of the sub-divided plots each admeasuring 1000 sq. meter. 13 It is true that the market value of the acquired land can be determined on the basis of the market value of the aforesaid smaller plots. However, appropriate deduction is required to be made on account of development charges. As per the various decisions of the Supreme Court, the deduction varies from 25% to 75%. The witness Gopal admitted that the acquired land is at the walking distance of 5 minutes from his plots which are subject matter of sale deeds at Exh.55 and 56. He stated that acquired land was having higher non agricultural potentiality than the lands subject matter of the aforesaid sale deeds. However, he stated that the plots subject matter of the sale deeds were situated in industrial zone towards the west of railway line and the acquired land was towards east. Therefore, the Reference Court has made a deduction of 40% from the rate of Rs. 200/- per sq. meter. Considering the evidence of the witness Gopal, the said deduction is reasonable and no fault can be found with the deduction of 40%. 14 Hence, the appeals preferred by the State of Maharashtra must fail and even the cross objection in First Appeal no.572 of 1994 must fail. 8 fa572-691withxob 15 Hence, I pass the following order : i) First Appeal no.572/1994 and Cross Objection St.no.5940/1995 are dismissed with no order as to costs. ii)First Appeal no.691 of 2005 is dismissed with no order as to costs. iii)Civil application no.2022 of 2004 does not survive and the same is disposed of. JUDGE