1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 56 of 2009 The State of Maharashtra .. Appellant versus Mohamad A. Kamaruddin Patel (Deceased) thruu LRs Abdulla Patel & ors. .. Respondents ... Mr.A.R. Patil AGP for the appellant. Mr.P.S. Dani for the respondent. CORAM : B.H.MARLAPALLE AND D.G. KARNIK, JJ DATED : 17th February 2009 P.C.: . Heard Mr.Patil, learned AGP for the State and Mr.Dani, learned counsel for the respondents - original claimants. . This appeal arises from the award dated 21st March 2007 passed by the Learned Joint Civil Judge, Sr. Division, Alibag in LAR No.100 of 2004 and under section 28A of the Land Acquisition Act 1894 ("the Act" for short). The claimants land located in 2 Survey No.454/5 and 401 of village Owe, Taluka Panvel has been acquired to the extent of 8 goonthas from Survey No.454/5 and 6 hectares and 39 Area plus 91 Ares (pot kharab land) consequent to the notification under Section 4 of the Act issued on 3rd February 1970 and for the development of New Mumbai. The Land Acquisition Officer passed his award u/s.11 of the Act in the year 1981 and fixed the market value at 0.40 paise per sq. m. on 4th February 1988. An application under section 28A of the Act was submitted to the Land Acquisition Officer. On 26th may 2003, the Land Acquisition Officer passed his order and being aggrieved by the same, a reference was made which came to be registered as LAR 100 of 2004, claiming the compensation at Rs.25/- per sq.m. The Reference Court by considering the pleadings and evidence of both the sides held that the market value of the claimants land would be Rs.20/- per sq.m. and accordingly passed the impugned award in respect of the total area admeasuring 74,810 sq.ms. The Reference Court directed interest at 9% and 15% to be paid under section 28 of the Act with effect from 11th July 1981. . This award has been challenged in the instant appeal by the State Government and the claimants have filed cross objections under Stamp 3 No.4345 of 2009, claiming interest u/s.28 of the Act with effect from 21st March 1974 on the ground that the claimants had voluntarily surrendered the subject land on 21st March 1974 itself rather than on 11th July 1981 as recorded in the impugned award. . When the appeal filed by the State Government was taken up for hearing, it was brought to our notice by the learned AGP that the issue of fixing the market value of the lands acquired from village Owe for New Mumbai project is concerned, the same has been already decided by a Division Bench of this Court vide its judgement dated 16th March 2000 in First Appeal Nos.875 of 1985 and other connected First Appeals. It was further pointed out that the said decision of the Division Bench has been followed subsequently by a Single Bench in First Appeal nos.394 and 917 of 1992 which came to be decided on 14th September 2000 and also by a Division Bench in First Appeal no.2424 of 2007 which came to be decided on 25th March 2008. The learned AGP therefore urged that the State Government’s appeal was required to be allowed at the threshold itself rather than admitting it and keeping it pending. We have therefore called for R & P and we have perused the same. By consent of the parties, we proceed to decide the appeal and cross objection at the admission stage itself. 4 . In paragraph no.10 of the Division Bench decision in First Appeal No.875 of 1985 the market value of the land from village Owe and acquired for the New Mumbai project has been fixed at Rs.13/- per sq.m. and the said paragraph reads as under:- 10. The next group of appeals refers to the acquisition of 17 lands which are situated at village Owe and they are shown in pink colour in the map in this group, there are five Appeals, out of which two are filed by the State. First Appeal No.291 of 1990 includes two lands bearing Survey Nos.300/2 and 297/1. On examining the location of these lands, it is found that they are quite away from the Highway, Railway Station, Gaothan as well as Industrial Estate. We, therefore, think that the market value of these lands deserves to be fixed at Rs.13.00 per sq.meter. In First Appeal No.292 of 1990, there are five lands bearing Survey Nos.88/6, 88/7A and 7B, 82/2 and 82/3. In First Appeal Nos.373 of 1989, there are ten lands involved and they are as follows: 232/1, 233/7, 243/2A, 250/0, 5 260/0, 249/1, 248/3, 247/13, 217/4A and 247/22. It is found that all the lands involved in these two appeals are identically situated like the lands in First Appeal No.291 of 1990. Therefore, there is no reason to make any difference, so far as the market value is concerned. We, therefore, fix the market value of these lands at the same rate, that is, Rs.13.00 per sq. meter. . However in the subsequent decision dated 14th September 2000 of the Single Bench in First Appeal no.394 and 917 of 1994 a distinction was made in respect of land in Survey No.72 from village Owe to fix the market value of Rs.20/- per sq. m. The Single Bench noted that the land in Survey No.72 was located along with road side from the National Highway and there were other facilities available in the said land. After considering the location of the land, record of the case and the observations of the Division Bench in First Appeal no.875 of 1985, the Single Bench fixed the market value of Rs.20/- per sq.m. for the land in Survey No.72 of village owe whereas in respect of the land from Survey No.61 and 111, the market value was fixed at Rs.13/- per sq.m. 6 In First Appeal No.2424 of 2007, another Division Bench of this court noted that the subject land from village Owe was 1 km away from the Mumbai Pune Highway and the New Mumbai city was at a distance of 5 kms and consequently the market rate of the land was confirmed at Rs.13/- per sq.m with all statutory and other benefits. . Mr.Dani learned counsel for the claimants referred to the valuation report submitted by the expert and urged that the market value of the land covered by these appeals is required to be fixed at more than Rs.13/- per sq.m. by following the decision of the Single Bench in First Appeal no.394 and 917 of 1990. . We have perused the valuation report and noted that the land in Survey No.454/5 and 401 of village Owe is not located within less than a kilometer distance from the Pune Mumbai Highway and therefore the Division Bench decision in First Appeal no.2424 of 2007 will govern the same and the market rate of the suit land cannot be fixed at more than Rs.13/- per sq.m. On account of the consistent view taken by this court in determining the market value of the land of village Owe for New Mumbai project, the impugned award fixing the market rate at Rs.20/- 7 per sq.m is unsustainable and the said market rate is required to be fixed at Rs.13/- and consequently First Appeal no.56 of 2009 will succeed partly. . So far as the cross objection of the claimant is concerned, as noted earlier, the impugned award proceeds on the basis that the possession of the land was taken by the State Government on 11th July 1981 for the first time. However, the record shows that the claimants surrendered the land from Survey No.454 and 401 voluntarily on 21st March 1974 and not on 11th July 1981 and to this extent the cross objection succeeds partly. . In the premises, First Appeal no.56/2009 succeeds partly. The market value of the claimants land admeasuring 74,810 sq.m. is fixed at Rs.13/- per sq.m. and they shall be entitled for all other statutory benefits under the Act from 21st March 1974. Undoubtedly they shall be required to pay court fee stamp if so required, on the additional compensation they would be entitled to. . The Registry is therefore directed to draw a fresh award on the above terms and the impugned award shall stand modified accordingly. The claimants to pay additional court fee if any, on cross objection 8 within two weeks from today. (D.G. KARNIK, J) (B.H.MARLAPALLE, J)