ash 1 fa-705.86withxobjn-group IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 705 OF 1986 WITH CROSS OBJECTION ST.NO.15576 OF 1987 WITH CIVIL APPLICATION NO.2237 OF 2004 WITH CIVIL APPLICATION NO. 639 OF 2011 AND CIVIL APPLICATION NO. 640 OF 2011 The State of Maharashtra ... Appellant Vs. Jayanarayan Shivnarayan Kasat ... Respondent -- ALONG WITH FIRST APPEAL NO.376 OF 1988 WITH CROSS OBJECTION ST.NO.21782 OF 1988 WITH CIVIL APPLICATION NO. 4330 OF 2002 The State of Maharashtra ... Appellant Vs. Namdeo Dharma Gaykar (Since deceased through L.Rs.) 1A Smt.Kalibai Namdeo Gaykar 1B Uttam Namdeo Gaykar 1C Sanjivani Namdeo Gaykar 1D Kamlakar Namdeo Gaykar 2. Dashrath Dharma Gaykar ... Respondents -- ash 2 fa-705.86withxobjn-group ALONG WITH FIRST APPEAL NO.1364 OF 1988 The State of Maharashtra ... Appellant Vs. Vishnu Tukaram Patil ... Respondent -- ALONG WITH FIRST APPEAL NO.666 OF 1989 WITH CIVIL APPLICATION NO. 427 OF 2008 WITH CIVIL APPLICATION NO.717 OF 2005 Mahadeo Shankar Mhatre through Power of Attorney Prakash Vasudeo Devdhar .. Appellant Vs. The Special Land Acquisition Officer, Panvel ... Respondent -- ALONGWITH FIRST APPEAL NO.669 OF 1989 WITH CIVIL APPLICATION NO.941 OF 2003 Vishnu Tukaram Patil Power of Attorney Prakash Vasudeo Devdhar .. Appellant Vs. Special Land Acquisition Officer ... Respondent Mr.A.R.Patil, A.G.P for State in all First Appeals. Mr.R.V.Pai i/b Mr.S.M.Kamble for the Respondents in F.A.Nos.705/1986, 376/1988 and F.A.Nos.1364/1988. In F.A. Nos.666/1989 and 669/1989 for the Appellants. ash 3 fa-705.86withxobjn-group -- CORAM: A.S. OKA, J DATE ON WHICH THE SUBMISSIONS WERE HEARD: 18TH MARCH, 2011 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 6TH MAY, 2011. JUDGMENT: FACTS IN FIRST APEAL NO. 705 OF 1986 1. First Appeal No. 705 of 1986 takes an exception to the judgment and award made by the Trial Court on 7th January, 1986 in Land Acquisition Reference No.85 of 1981. Civil Application No. 639 of 2011 and Civil Application No.640 of 2011 have been filed for additional evidence. The lands subject matter of this Appeal are situated at Panvel, Taluka – Panvel, District – Raigad, which were notified under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”) on 3rd February, 1970 for the public purpose of development of satellite city of New Bombay. By the impugned judgment and award, the Reference Court in a reference under Section 18 of the said Act fixed the market value of the acquired lands at the rate of Rs. 15/- per sq. meter. There is a Cross objection filed by the Claimants claiming enhancement in ash 4 fa-705.86withxobjn-group market value. Civil Application No.705 of 2004 is filed for amendment of the Cross objection. 2. On 8th June, 2006, this Court passed an order in the First Appeal framing three issues for decision of the Trial Court. The operative part of Paragraph 15 of the said order reads thus: - “(A) The following issues are framed and are referred to the Trial Court: (i) Whether the claimant has omitted for a sufficient reason to make a claim in response to service of notice under section 9 of the Land Acquisition Act, 1894? (ii) If answer to the aforesaid issue is in the affirmative, whether the claimant can be permitted to make such claim by exercising discretion under unamended section 25 of the said Act of 1894 ? (iii) What was the market value of the acquired land on the relevant date? (B) The Trial Court will permit the parties to lead evidence on the aforesaid issues. The Trial Court shall return the evidence together with its findings on the aforesaid issues and the reasons therefor within a period of six months from the date fixed for appearance of the parties before the Trial Court. (C) The parties will appear before the Trial Court on 07th August, 2006 at 11.00 a.m. for fixing the schedule of hearing. (D) The Appeal be placed before the appropriate Court for final hearing after receipt of the findings from the Reference Court. (E) The office will immediately send Record and Proceeding to the Trial Court. The Record and ash 5 fa-705.86withxobjn-group Proceeding shall be returned to this Court along with the findings of the Trial court.” 3. In terms of the said order, the parties adduced evidence before the Reference Court. The first two issues were answered in the affirmative. The learned Trial Judge held that the Respondent is entitled to market value at the rate of Rs.23/- per sq. meter. There is no challenge to the said finding by the State of Maharashtra. However, by filing Civil application No.639 and 640 of 2011, the Claimant has claimed enhancement in market value. Civil Application No.2237 of 2004 is filed by the Respondent-Claimant by which the Respondent Claimant has claimed market value at the rate of Rs.60/- per sq. meter. FACTS OF FIRST APPEAL NO. 376 OF 1988 4. First Appeal No.376 of 1988 takes an exception to the judgment and award dated 28th March, 1985 passed by the Trial Court in Land Acquisition Reference no.41 of 1984 which was a reference under Section 18 of the said Act. The acquisition in the present case also relates to the land at village Panvel which was notified on the same day and for the same public purpose as in case of the lands subject matter of the earlier appeal. The Trial Court has fixed the market value at the rate of Rs.12/- per sq. meter. The Respondents Claimants have filed cross objections claiming market value at the rate of Rs.30/- per sq. meter. ash 6 fa-705.86withxobjn-group Civil Application No. 4330 of 2002 has been filed by the Claimants for production of additional evidence and for claiming market value at the rate of Rs.60/- per sq. meter. FACTS OF FIRST APPEALS NO. 1364 OF 1988 AND FIRST APPEAL NO. 666 OF 1989. 5. First Appeal No.1364 of 1988 filed by the State of Maharashtra takes an exception to the judgment and award dated 31st December, 1987 passed by the Trial Court in Land Acquisition Reference No.115 of 1988 which was a reference under Section 18 of the said Act arising out of the land situated at Village Panvel, Taluka Panvel, District – Raigad which was notified on the same date and for the same public purpose as in other companion Appeals. The market value has been fixed by the learned Trial Judge at the rate of Rs.15/- per sq. meter. There is a cross appeal preferred by the original Claimant being First Appeal No.669 of 1989 wherein the market value has been claimed by the Claimants at the rate of Rs.30/- per sq. meter. Civil Application No. 941 of 2003 has been filed for enhancement of claim to Rs.30/-per sq.meter. FACTS OF FIRST APPEAL NO.666 OF 1989 6. First Appeal No.666 of 1989 is preferred by the original Claimant for challenging the impugned judgment and award dated 18th ash 7 fa-705.86withxobjn-group July, 1988 passed under Section 18 of the said Act in Land Acquisition No. 82 of 1987. The acquisition relates to the lands at Panvel which were notified on the same date for the same public purpose as in other appeals. The market value of the acquired land has been fixed at the rate of Rs.15/- per sq. meter by the Reference Court. The claim made in the Appeal is at the rate of Rs.30/- per sq. meter. Civil Application Nos. 717 of 2005 and 427 of 2008 are for impleading parties and for bringing on record the legal representatives respectively. SUBMISSIONS 7. The main submissions have been made in First Appeal No. 705 of 1986. As stated earlier, while recording findings as per the order passed by this Court on 8th June, 2006, the Reference Court has come to a conclusion that the market value of the acquired land will be Rs.23/- per sq. meter. The said finding has been recorded on the basis of the decision of this Court in the case of Nama Padu Hudar v State of Maharashtra in First Appeal No. 754 of 1986 and other connected appeals which were decided on 25th and 26th February, 1993. The learned counsel appearing for the Appellant has invited the attention of the Court to the judgment and order dated 12th June, 2008 passed by a Division Bench of this Court in First Appeal No. 604 of 1995 in the case of State of Maharashtra v. Prakash Vasudeo Deodhar, [(2008) 5 BCR 708] . He submitted that as per the said decision of this Court, the market value of the acquired land ash 8 fa-705.86withxobjn-group will be Rs.25/- per sq. meter. He placed reliance on a judgment of the Reference Court in Land Acquisition Reference No.85 of 1981. He pointed out that by the said judgment in respect of the acquired lands at Village Panvel, Taluka Panvel, District – Raigad which were notified on the same date for the same public purpose, the market value was fixed at the rate of Rs.29/- per sq. meter. He pointed out that though an Appeal was preferred by the State Government for challenging the said judgment and award, there was a delay in preferring the Appeal and this Court dismissed the application for condonation of delay and thus, the market value at the rate of Rs.29/- per sq. meter has been confirmed by this Court. 8. He placed reliance on the annexures to the Civil Application No.640 of 2011. He placed reliance on a map as well as orders of the Division Bench of this Court dated 26th June, 2008 by which the aforesaid Civil Applications for condonation of delay preferred by the State Government have been dismissed. He pointed out that in Land Acquisition Reference No.110 of 1987, the Reference Court has fixed the market value of the acquired land at Rs.35/- per sq. meter. Lastly, he tendered across the bar a true copy of the judgment and order dated 3rd May, 2008 passed in Land Acquisition Reference Nos. 40 of 2005, 46 of 2005, 42 of 2005 and 43 of 2005 by the Trial Court by which market value of the acquired lands at Panvel was fixed by the Reference Court at Rs. 28/- per sq. meter. He invited attention of the Court to the memorandum issued by the State Government on 11th December, 2008 by which the ash 9 fa-705.86withxobjn-group State Government decided to accept the said judgment and award. He, therefore, submitted that the State Government has acquiesced to the decision of the Reference Court holding that the market value of the acquired land is Rs.28/- per sq. meter in respect of the similarly situated land. He, therefore, submitted that the minimum market value of the acquired land will have to be fixed at the rate of Rs.30/- per sq. meter in the present case. The learned AGP submitted that the Claimants have not discharged the burden on them and therefore impugned awards deserve to be set aside. CONSIDERATION OF SUBMISSIONS 9. I have given careful consideration to the submissions. It is not in dispute that the lands falling within the limits of 96 villages in Districts Thane and Raigad were notified between 1967 and 1972 under section 4(1) for public purpose of setting up satellite city of New Bombay. A large number of lands from the villages Kamothe and Panvel were notified for acquisition. A Division Bench of this Court dealt with the awards made under Section 18 of the said Act relating to the said two villages in the case of Nama Padu Hudar and Others v. State of Maharashtra and other connected appeals (1993(3) BCR 54 ). This Court divided the lands into different categories on the basis of its distance from the Bombay- Pune National Highway. The market value was fixed by the Division Bench depending upon distance of the land from Highway as ash 10 fa-705.86withxobjn-group under: Group No. First S.No. H.No. Area Rate Appeal sq.Mt. Granted No. P.S.M. Rs.Ps. 1. 754/1986 671 1(Part) 8240 25/00 Abutting the Highway 763/1986 694 2 5870 25.00 698 2 510 25.00 704 7 1060 25.00 704 2 3310 25.00 ii. 751/1986 598 2/5 4270 23.00 within (Part) 800 Metres 756/1986 665 1B 2450 23.00 665 1D 1860 23.00 663 1/5 1340 23.00 660 3 5830 23.00 iii. 753/1986 614 2 3100 22.00 Abutting 751/1986 617 2 4350 22.00 Kamothe Z.P. (Part) Road to 1200 Metres 752/1986 548 7(Part) 2500 22.00 IV-A 755/1986 209 9 4560 20.00 800 Mtrs to 2200 Mtrs 213 10 1900 20.00 from Bombay- Poona Highway IV-B 200 Mtrs. From Z.P.Rd. 743/1986 240 2 1900 20.00 & Gaothan to 640 Mtrs. From Z.P. Rd. 274 2 4760 20.00 & Gaothan. The method adopted by this Court has been approved by the Apex Court in the case of Shantadevi Ruparel v. The Special Land Acquisition Officer in ash 11 fa-705.86withxobjn-group Civil Appeal No. 1550 of 2006 decided on 6th March, 2006. Relying upon the decision in the case of Nama Padu Hudar (supra), the Division Bench of this Court in the case of State of Maharashtra v. Prakash Vasudeo Deodhar , [(2008) 5 BCR 708] divided the lands at villages Panvel and Kamothe into three categories. The said three categories reflected from the paragraph 17 of the Judgment are as under: “17. The claimants would be entitled to compensation for acquisition of their lands as under:- (a) Lands falling within 750 meters of the National Highway – Rs.25/- per sq. Metre. (b) Land falling within 750 to 1500 metres of the National Highway – Rs.23/- per sq. Metre. (c) Land falling beyond 1500 metres of the National Highway – Rs.21/- per sq. Metre.” It must be noted here that in the case of State of Maharashtra v Prakash Vasudeo Deodhar (supra), this Court extensively considered all its earlier decisions including the decision in the case of Nama Padu Hudar (supra). The said decision relates to the lands notified under Section 4(1) of the said Act on 3rd February, 1970 for the same purpose. This decision binds this Court. The said decision has become final. Hence, in the present case, market value will have to be determined in terms of the said decision. ash 12 fa-705.86withxobjn-group 10. When these appeals were heard on 24th January, 2011, learned counsel appearing for the Applicant tendered across the bar an application which was subsequently numbered as Civil Application No. 640 of 2011. In the said application, three documents have been relied upon. The first is a map showing location of various acquired lands. The second document is a judgment and order dated 2nd November, 1989 in Land Acquisition Reference No.110 of 1989 and other connected references by which market value of the acquired land at Panvel was fixed at Rs.30/- per sq. meter. It must be stated here that the aforesaid decision of the Division Bench in the case of the State of Maharashtra v. Shri Prakash Vasudeo Deodhar (supra) arose out of the said judgment in Land Acquisition Reference No.110 of 1989 and the Division Bench reduced the market value fixed by the Reference Court. Paragraph 17 of the said decision has been already quoted above. As pointed out in the order passed by this Court on 24th January 2011, the decision in the case of the State of Maharashtra v. Shri Prakash Vasudeo Deodhar (supra) was suppressed while filing the said application being Civil Application No.640 of 2011. In Civil Application No.639 of 2011 which is filed subsequently on 4th February, 2011, the Respondent has tendered apology and a copy of the judgment in First Appeal No.604 of 1995 [ State of Maharashtra V/s. Prakash Vasudeo Deodhar (supra)] has been annexed. In addition, reliance has been placed on the judgment of the Reference Court in Land Acquisition Reference No.23 of 2002 and other connected References ash 13 fa-705.86withxobjn-group wherein market value has been fixed at Rs.29/- per sq. meter. It is pointed out that a First Appeal was preferred by the State Government against the judgment and award in the said reference. There was a delay in preferring the appeal. Reliance is place on the order of this Court dismissing the application for condonation of delay. It is, therefore, contended that the award in the reference had attained finality. It must be stated here that by rejecting application for condonation of delay, there is no adjudication made on merits of the impugned award of the reference Court. In the circumstances, the order of this Court rejecting the application for condonation of delay cannot be read as an order laying down the market value of the acquired land which was subject matter of reference. It cannot be said that the decision of the reference Court was confirmed by this Court on merits. What binds this Court is the decision in the case of State of Maharashtra v Prakash Vasudeo Deodhar(supra ). Similarly, reliance cannot be placed on the judgment and award of the Reference Court in Land Acquisition Reference Nos.40 of 2005, 42 of 2005, 43 of 2005 and 46 of 2005 only on the ground that the State Government decided not to prefer an appeal. In the face of the judgment of the Division Bench in the case of State of Maharashtra v Prakash Vasudeo Deodhar(supra )reliance cannot be placed on the said judgment of the Reference Court. Hence, compensation in the present cases will have to be determined on the basis of the judgment of this Court in State of Maharashtra v Prakash Vasudeo Deodhar ). In First Appeal No.705 of 1986, now there is a finding of the Trial Court which is not challenged ash 14 fa-705.86withxobjn-group that the acquired lands are situated at a distance of 50 to 800 meters from Bombay Pune National Highway. Hence, if average distance from Highway is considered, in my view, the lands will fall in category “a” specified in Paragraph 17 of the decision in First Appeal No.604 of 1995 ( State of Maharashtra v Prakash Vasudeo Deodhar). Hence, the market value will have to be fixed at the rate of Rs.25/- per sq. meter. 11. As far as First Appeal No.376 of 1988 is concerned, the finding of the trial Court based on the evidence of Valuer is that the acquired land is at a distance of 800 meters from the Highway. There is no reason to dispute the said finding. Hence, the case will fall in the category “b” fixed under the judgment of the Division Bench of this Court. Hence, market value will have to be fixed at the rate of Rs.23/- per sq. meter. 12. As far as First Appeal No.669 of 1989 is concerned, the cross examination of the Valuer examined by the Claimants discloses that the acquired land is at a distance of 1040 meters from the Highway. Hence, the case will fall in Category “b” fixed under the aforesaid judgment of the Division Bench of this Court and the market value will have to be fixed at the rate of Rs.23/- per sq. meter. First Appeal No.1364 of 1988 is the cross Appeal preferred by the State. 13. As far as First Appeal No. 666 of 1989 is concerned, the ash 15 fa-705.86withxobjn-group evidence of the expert valuer of the Claimant discloses that the Bombay Pune National Highway is at a distance of 800 meters from the acquired land. Hence, the land will fall in the category “b” and the market value will have to be fixed at the rate of Rs.23/- per sq. meter. In First Appeal No.705 of 1986, the Award of the Reference Court has been made on 11th February, 1981. Hence, the Claimants will be entitled to statutory benefits under Sections 23(2) and 28 of the said Act. In other cases, the Claimants will be entitled to statutory benefits under Section 23(1-A) as well. 14. Hence I pass following Order: (i) The First Appeal No. 705 of 1986 is dismissed with no orders as to costs. Cross Objection (st) No. 15576 of 1987 is partly allowed and the total market value of the acquired lands is fixed at Rs. 25/-per square metre. In addition to the market value, the claimants will be entitled to statutory benefits under Sections 23(2) and 28 of the Land Acquisition Act, 1894. The Claimants will be entitled to proportionate costs of the reference and the Cross Objection. The Trial Court shall complete the exercise of determining the compensation payable as per the modified award within a period of 3 months from the date on which the writ of this Judgment is received by ash 16 fa-705.86withxobjn-group the said Court. The excess market value, if any, shall be deposited within a period of 3 months from the date of the determination of the compensation amount. Civil Application No. 2237 of 2004 is allowed in terms of prayer clause (b). Civil Application Nos. 639 and 640 of 2011 are disposed of. (ii) The First Appeal No. 376 of 1988 is dismissed with no orders as to costs. Cross Objection (st) No. 21782 of 1988 is partly allowed and the total market value of the acquired lands is fixed at Rs. 23/-per square metre. In addition to the market value, the claimants will be entitled to statutory benefits under Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894. The Claimants will be entitled to proportionate costs of the reference and the Cross Objection. The Trial Court shall complete the exercise of determining the compensation payable as per the modified award within a period of 3 months from the date on which the writ of this Judgment is received by the said Court. The excess market value, if any, shall be deposited within a period of 3 months ash 17 fa-705.86withxobjn-group from the date of the determination of the compensation amount. Civil Application No. 4330 of 2004 is allowed in terms of prayer clause (b). (iii)The First Appeal No. 666 of 1989 is partly allowed and the total market value of the acquired lands is fixed at Rs. 23/-per square metre. In addition to the market value, the claimants will be entitled to statutory benefits under Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894. The Claimants will be entitled to proportionate costs of the reference and the First Appeal. The Trial Court shall complete the exercise of determining the compensation payable as per the modified award within a period of 3 months from the date on which the writ of this Judgment is received by the said Court. The excess market value, if any, shall be deposited within a period of 3 months from the date of the determination of the compensation amount. Civil Application Nos. 717 of 2005 and 427 of 2008 are allowed. ash 18 fa-705.86withxobjn-group (iv) The First Appeal No. 1364 of 1988 is dismissed with no orders as to costs. First Appeal No. 669 of 1989 is partly allowed and the total market value of the acquired lands is fixed at Rs. 23/-per square metre. In addition to the market value, the claimants will be entitled to statutory benefits under Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894. The Claimants will be entitled to proportionate costs of the reference and the First Appeal No.669 of 1989. The Trial Court shall complete the exercise of determining the compensation payable as per the modified award within a period of 3 months from the date on which the writ of this Judgment is received by the said Court. The excess market value, if any, shall be deposited within a period of 3 months from the date of the determination of the compensation amount. Civil Application No. 941 of 2003 is allowed in terms of prayer clause (b). (A.S.OKA, J)