[1] IN THE HIGH COURTOF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 364 OF 2004 IN LAND ACQUISITION REFERENCE NO. 24 OF 1984 IN CASE OF LAO/29/1979 The Trustees of the Haines Road and Grant Road Jewish Cemeteries Trust ... Appellants. [Orig.Claimants] Versus. 1. The Government and 2. The Special Land Acquisition Officer (I), Bombay Municipal Corporation Bombay and Bombay Suburban District. ... Respondents. Mr. C.M.Korde Sr.Advocate withMilind Jadhav, Y.S.Soloman &Mrs. Manali Patwardhan i/b. Soloman & Co. for the appellants. Mr. P.G.Lad with K.N.Gaikwad for respondent No. 2. Mr. Sindha Sridharan AGP for respondent No.1. [2] CORAM CORAM CORAM : D.K.Deshmukh and : D.K.Deshmukh and : D.K.Deshmukh and A.A.Sayed, A.A.Sayed, A.A.Sayed, JJ. JJ. JJ. DATE DATE DATE : March 30, 2009. : March 30, 2009. : March 30, 2009. P.C. 1. By this appeal, the appellant takes exception to the order passed by the learned Single Judge of this Court, rejecting the reference made under Section 18 of the Land Acquisition Act, at the instance of the appellant in relation to the land of the appellants which has been compulsorily acquired. The Land Acquisition Officer in his award has awarded compensation @ 800/- per square meter whereas according the appellants, they were entitled to compensation @ 1500/- per square meter. The learned Single Judge has rejected the reference. 2. The learned Single Judge has rejected the reference by holding that the evidence led by the appellant, which is the deposition of only one witness i.e. the Valuer is not acceptable. The learned Single Judge has held that the Valuer has not taken into consideration while arriving at the conclusion that Rs. 1500/- per sq.mts. is just compensation, the fact that the land is reserved for recreation ground in the [3] development plan and that certain portion of the land was occupied by persons other than the owners, that in the past the land was used as Jewish Cemetery, that relying on the judgment of the Supreme Court in the case of SPECIAL DEPUTY COLLECTOR VS. KURRA SAMBHASIVA RAO, reported in AIR 1997 SUPREME COURT 2625 has held that mere production of the certified copy of the sale instance is not enough to prove the sale instance. 3. The learned counsel appearing for the appellant submitted that the learned Single Judge was not justified in rejecting the Report and deposition of the Valuer on the ground that in the development plan the land was reserved for recreation ground, relying on the Judgment of the Division Bench of this Court in LAND ACQUISITION REFERENCE NO. 21 OF 1983 dated 16.10.2002. He further submitted that though it is true that the Valuer did not take into consideration the fact that a portion of land was occupied by persons other than the owners, in a reference made under Section 30 of the Land Acquisition Act, the appellant has been held entitled to the entire compensation for the land. He further submits that though it is true that the land was previously used as Jewish Cemetery, the learned Single Judge could have reduced the amount on that aspect of the matter; but the valuer’s report could not have been rejected in its entirety for that reason [4] alone. The learned Counsel further submits that the judgment of the Supreme Court in KURRA SAMBHASIVA RAO’s case has been overruled by the Larger Bench of the Supreme Court in case of CEMENT CORPORATION OF INDIA LTD. VS. PURYA AND OTHERS, reported in (2004) 8 SCC 270. 4. The learned Counsel appearing for the respondents on the other hand supported the judgment of the learned Single Judge. 5. We find considerable substance in the submissions made by the learned Counsel for the appellant in view of the Judgment of the Division Bench in case of SPECIAL LAND ACQUISITION OFFICER VS. M/S. GOVINDRAM BROTHERS PVT.LTD. IN LAR NO.21 OF 1983 (Supra). The fact that the land is reserved for recreation ground in the development plan may not be relevant. We also find that learned Single Judge was not justified in relying on the judgment in SPECIAL DEPUTY COLLECTOR VS. KURRA SAMBHASIVA RAO’s in view of Judgment of the Supreme Court in CEMENT CORPORATION OF INDIA (Supra). 6. However, we find that the leaned Single Judge was justified in holding that the evidence on record for enhancement in the compensation is not enough in [5] view of the fact that the Valuer does not take into consideration the fact that a part of the property is occupied by persons other than the owners and that the land was used in the past as Jewish Cemetery. On all this being pointed out by the learned counsel appearing for the appellant he submits that if the evidence on record in this regard is found not to be sufficient the appeal Court should be granted an opportunity to lead evidence on this aspect of the matter. He submits that the appellant is a trust and, therefore, it should be given an opportunity to lead evidence so that it gets just compensation. The request is not opposed by the acquiring body. We find that the judgment of the learned Single Judge is defective in certain aspects of the matter which we have pointed out above and in our opinion the appellant is entitled to be granted an opportunity to lead additional evidence. 7. One more aspect in our opinion is relevant for remanding the proceeding back as it appears from the record that the appellant would be entitled to the statutory benefits under the 1984 amendment to the Land Acquisition Act. However neither the Land Acquisition Officer nor the Learned Single Judge have looked into that aspect of the matter. 8. In our opinion, therefore, the following order [6] would meet the ends of justice. ORDER (1) The appeal succeeds in part and is allowed in part. The order passed by the learned Single Judge dated 23.1.2004 is set aside. LAR 24 OF 1984 is remitted back to the learned Single Judge to permit the parties to lead additional evidence what the parties may choose to lead. (2) Appeal disposed of. [D.K.Deshmukh, [D.K.Deshmukh, [D.K.Deshmukh, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]