1 fa210to215 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.210 OF 1989 The State of Maharashtra ...Appellant vs. Bhimashankar Dharmarao Thobade (since deceased through L.Rs.) 1 Smt.Ratnaprabha Bhimashankar Thobade 2 Sanjay Bhimashankar Thobade 3 Mahesh Bhimashankar Thobade 4 Sou.Shailaja Raja Hadikyal(dismissed) 5 Sou Anuja Dinesh Gattal ...Respondents ALONG WITH FIRST APPEAL NO.211 OF 1989 The State of Maharashtra ...Appellant vs. 1 Ahamadali Yaseensaheb Mulla (since deceased through L.Rs.) 1A Smt.Rabiyabi w/f Ahmadalli Mulla 1B Abdul Hamid A. Alli Mulla 1C Abdul Karim A.Alli Mulla 1D Mohamed Hussen A.Alli Mulla 1E Burhan A. Alli Mulla 1F Mahibub A. Alli Mulla 2 Uljan Yaseensaheb Mulla ...Respondents ALONG WITH FIRST APPEAL NO.212 OF 1989 The State of Maharashtra ...Appellant vs. 1 Mohamad Hanif Suleman Shaikh (since deceased through L.Rs.) 1A Smt.Hashamathi w/f Mohamad Hanif Shaikh (since deceased through Lrs) 1A(a) Smt.Rahimatbi Allabaksha Hanware 1A(b) Ismail Mohamed Hanif Shaikh 1A(c) Smt.Bilkisbabanu Shaikh Ahamed 1A(d) Ibrahim Homamed Hanif (deceased) 1A(e)Ayub Mohamed Hanif Shaikh 1A(f) Smt.Jebunnisa Abdulwahab Shaikh 1A(g) Smt.Jaitunbi Abdul Hamid Shaikh 1A(h)Alamgir Suleman Shaikh (since deceased through L.R 1A(h) i) Smt.Bismilla Alamgir Shaikh 1A(i)Harun Rashid Suleman Shaikh 2 fa210to215 1B Smt.Rahimatabi Allabaksha Manavare 1C Ismail Mohamad Hanif Shaikh 1D Smt.Bilkisbanu Shaikh Ahmad (since deceased through LR.) 1E Ayyub Mohamed Hanif 1F Smt.Jaibunnisa Abdul Vahab Shaikh ...Respondents ALONG WITH FIRST APPEAL NO.213 OF 1989 The State of Maharashtra ...Appellant vs. Smt.Jahirabi w/o Kasimsaheb Shaikh ...Respondent ALONG WITH FIRST APPEAL NO.214 OF 1989 The State of Maharashtra ...Appellant vs. 1 Tukaram Vithoba Jaknaik 2 Ram Vithoba Jaknaik ...Respondents ALONG WITH FIRST APPEAL NO.215 OF 1989 The State of Maharashtra ...Appellant vs. Mahibubi w/o Hasansaheb Shaikh ...Respondent Mr.A.R.Patil, A.G.P for the appellant in all the appeals Mr.P.M.Mengane for R.no.1 in F.A.no.210/1989, forR.nos.1A to 1F and 2 in F.A.No.211/1989, for 1A to 1D, 1G and 2 in F.A.NO.212/1989, for R.nos.1 and 2 in F.A.no.214/1989, for respondent no.F.A.no.215/1989 Mr.A.B.Tajane for the respondent no.2 in F.A.No.210/1989 CORAM : A.S.OKA,J. DATE : JUNE 13, 2011 ORAL JUDGMENT : 1 These appeals can be disposed of by a common Judgment and Order as the challenge is to the common Judgment in six references under section 18 of the Land Acquisition Act,1894 (hereinafter referred to as the said Act). 3 fa210to215 2 Acquisition is in respect of lands bearing C.T.S.No. 1297 to 1304 situated at North Kasba Peth in Solapur city. The acquisition was for the purpose of setting up primary school and for road widening. The notification dated 31st December 1978 under section 126 (4) of the Maharashtra Regional and Town Planning Act,1966 r/w section 6 of the said Act was issued. Award was made under section 11 of the said Act on 10th June 1982. The Special Land Acquisition Officer offered the market value of the land at the rate of Rs.175/- per sq. meter and of the structures on the acquired land at Rs.35/- per sq. meter. At the instance of the respondents-claimants, references under section 18 of the said Act were made in which various claims were made by the respondents. By the impugned Judgment and Award, Reference Court came to the conclusion that the respondents have not made out a case for grant of enhancement in so far as cost of construction is concerned. However, as far as the market value of the acquired lands is concerned, the same was enhanced to Rs.300/- per sq.meter from Rs.175/- per sq. meter. Statutory benefits were awarded under section 23 (1-A), 23(2) and 28 of the said Act. 3 The learned A.G.P appearing for the appellant submitted that the Reference Court has discarded both the sale instances at Exhibits-25 and 43 relied upon by the claimants and without there being any legal evidence, only on the basis of the surmises and conjectures came to the conclusion that the market value of the acquired land was Rs.300/- per sq. meter. He submitted that the acquisition is in respect of the small plots of land together with structures. He submitted that after discarding the sale instances, the Reference Court ought to have dismissed the Reference. He submitted that the Reference Court ought to have valued the lands together 4 fa210to215 with structures thereon as one unit and separate compensation was not payable. He submitted that enhancement in market value of the land is completely illegal and the same ought to be quashed and set aside. 4 The learned counsel for the respondents supported the impugned Judgment. Their contention is that in fact the enhancement ought to have been granted by the trial Court by relying upon the sale deed at Exh.43 which reflects the market value at the rate of Rs.638/- per sq. meter. The respondents supported the impugned Award by contending that the finding of the trial Court as regards sale deed at Exh.43 ought to have been in favour of the respondents. 5 I have given careful consideration to the submissions. The relevant date for determination of the market value in the present case is 31st December 1978. In support of the claim for enhancement, the respondents- claimants relied upon the sale deeds at Exh.25 and 43. As far as sale deed at Exh.25 is concerned, the Reference Court has discarded the same for the reasons recorded. The said finding is not challenged by the respondents. 6 The second sale instance relied upon by the respondents was of sale deed dated 7th September 1978 executed by one Tukaram Yellappa Madgundi in favour of Dr.Ravindra Dekhane. It is in respect of the area of 54.8 sq. meter out of CTS. no.182 at Solapur. The first reason given by the learned Reference Court is that it is not brought on record as to what is the distance between the sale deed property and the acquired lands. Perhaps the learned Reference Court was swayed away by the submission of learned Government Pleader that the purchaser being a Medical Practitioner has paid fancy price for the said 5 fa210to215 plot. The said findings are assailed by the respondents. Under Rule 22 of Order XLI of the Code of Civil Procedure,1908, the respondents can always support the impugned Decree by contending that adverse finding on a particular issue ought to have been recorded in their favour. 7 It must be noted here that the acquired lands are small portions of plots with structures. The respective area of the acquired plots of lands ranges between 12.5 sq. meter to 23 sq. meters. The acquired lands are situated at North Kasba, Solapur city. One of the claimants Bhimashankar Dharmarao Thobade stepped into witness box. He stated that the acquired lands are situated between Punjab Talim and Mallikarjun Temple. He stated that Mallikarjun temple is 500 to 600 feet away from the acquired lands. He stated that Jain boarding and Jain Temple are near the acquired lands. As far as these assertions about the location are concerned, there is no challenge in the cross examination of the said witness made by the Appellant. The purchaser under the sale deed at Exh.43 Dr.Ravindra Digambar Dekhane was examined as a witness. Even one of the vendors Mr.Sidram Yellappa Madgundi was examined as a witness. In his examination- in-chief, Dr.Ravindra Dekhane stated thus : I had purchased house property from one Tukaram Yellappa Madgundi and others. The property is situated in North Kasba Peth bearing house no.1009. The property is situated on City Survey no.182. The property is admeasuring 54.8 sq. meters. I purchased the property for Rs.35,000/-. The property is within the vicinity of Mallikarjun Temple. The property was open land. I have brought the 6 fa210to215 xerox copy of the sale deed. The original sale deed is with the bank with whom the property is mortgaged. I cannot get the original sale deed from the bank unless I repay the loan. 8 The cross examination of the said witness was declined. From the evidence of the claimant and evidence of the said Dr.Ravindra Dekhane, it is clear that both the acquired lands as well as the land subject matter of the sale deed at Exh.43 are in the vicinity of Mallikarjun temple. In the evidence of Dr.Ravindra Dekhane, he was not even given a suggestion that he was not a bonafide purchaser or that he had paid more amount than the market value the then prevailing as he badly needed the property. Even the vendor under the said document is also not cross examined. Recitals in the said document show that the same was in respect of the small plot admeasuring 54.80 sq.meter. In the circumstances, sale deed of a plot which was in close proximity of the relevant date could not have been discarded. It certainly gives a guideline for fixing the market value especially when the acquired lands are also small plots of lands. The said market value is in respect of the open land. The market value fixed by the learned Reference Court in respect of the acquired lands is less than 50% of the market value reflected from the sale deed. Therefore, the market value of the acquired lands could have been to some extent more than what is granted. Therefore, it is not possible to find fault with the finding recorded by the Reference Court as regards market value of the acquired lands. It is true that the determination of the market value of the lands and buildings should have been made as one unit. Nevertheless, the Special Land Acquisition Officer has offered the market value separately for the cost of 7 fa210to215 construction and plot of land. Apart from this, if the land and structure is valued as one unit, even then the total market value granted by the trial Court at the rate of Rs.335/- per sq. meter (Rs.300/- for land and Rs.35/- for structure) is reasonable. The market value reflected from the sale deed at Exhibit-43 is Rs.638/- per square meter. 9 In the circumstances, it is not possible to interfere with the market value fixed by the Reference Court. There is no dispute regarding statutory benefits. There is no merit in the Appeals and the same are dismissed with no order as to costs. JUDGE