1 fa1059-1020 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1059 OF 2002 ALONGWITH CROSS OBJEJCTION (ST.) NO.44423 OF 2003 The State of Maharashtra .. Appellant (Orig. Respondent) V/s. 1. Smt. Gangabai Purushottam .. Respondents Sakhare & Ors. (Orig. Claimants) AND FIRST APPEAL NO.1020 OF 2003 ALONGWITH CROSS OBJECTIN (ST.) NO. 44421 OF 2003 ALONGWITH CIVIL APPLICATION NO. 6755 OF 2007 The State of Maharashtra .. Appellant (Orig. Respondent) V/s. 1. Shri Ramesh Purushottam .. Respondents Sakhare & Ors. (Orig. Claimants) .... Mr. A. R. Patil, AGP for the appellant – State. Mr. S. S. Kulkarni for respondent Nos. 1, 2, 4 and 5. .... CORAM : A.S.OKA, J. DATE : JUNE 24, 2011. ORAL JUDGMENT : Heard the learned AGP appearing for the appellant. These Appeals can be disposed of by a common judgment and order. 2 fa1059-1020 The challenge in these Appeals by the State Government is to the Awards made in References under Section 28(A-3) of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”). The acquired lands are situated at Panvel, Taluka Panvel, District Raigad within the limits of Panvel Municipal Council. The notification under Section 4(1) of the said Act was issued on 3rd February, 1970 for the public purpose of setting up satellite city of New Bombay. 2. In case of the First Appeal No.1059 of 2002, the Award under Section 11 of the said Act was made on 16th July, 1981. In case of First Appeal No.1020 of 2003, the Award under Section 11 of the said Act was also made on 16th July, 1981. The respondents- claimants did not apply for references under Section 18 of the said Act. However, applications were made by them under Section 28(A) of the said Act for re-determination of the market value on the basis of the Awards made by the Reference Court in the Land Acquisition References arising out of the same notification. The Special Land Acquisition Officer re-determined the market value at the rate of Rs.10/- per square meter. However, the claimants did not accept the said re-determination and at their instance, References were made under Section 28(A-3) of the said Act. By the impugned Judgments and Awards, the market value has been 3 fa1059-1020 fixed at the rate of Rs.35/- per square meter and statutory benefits under Sections 23(1-A), 23(2) and 28 of the said Act have been granted. 3. The learned AGP appearing for the appellant submitted that there is no evidence adduced by the respondents-claimants of the comparable sale instances. He submitted that the market value ought to have been fixed in terms of the decision of the Division Bench of this Court in the case of State of Maharashtra V/s. Prakash Vasudeo Deodhar [2008 (5) Bombay Cases Reporter 708]. He submitted that going by the said decision, considering the distance of Bombay Pune National Highway from the acquired lands, the market value can be fixed at Rs.25/- per square meter. He pointed out that the Awards under Section 11 have been made on 16th July, 1981 and hence, the claimants were not entitled to the statutory benefits under Section 23(1-A) of the said Act. In both the Appeals preferred by the State Government, their are Cross Objections filed by the respondents-claimants for claiming enhancement in market value. 4. The learned counsel appearing for the respondents-claimants relied upon the evidence in the form of valuation report of Mr. M. G Vaidya, Architect. He pointed out that the said valuation report 4 fa1059-1020 was duly proved in which the valuer has considered an instance of a lease granted by a Petroleum Company in the year 1969 which reflects the market value of Rs.42/- per square meter. He pointed out that the plan annexed to the report of the valuer shows that the land subject matter of the lease is in close vicinity of the acquired lands. He pointed out that the acquired lands are close to Diva Panvel Railway Line and are situated on the western side of the National Highway at a distance of 120 meters. He submitted that there is no cross-examination made by the expert valuer on this aspect and that is why the market value fixed at the rate of Rs.35/- per square meter is justified. He urged that on the basis of the instance of lease, enhancement deserves to be granted. 5. I have given careful consideration to the submissions. I have perused the record of the Reference Court. It is not in dispute that the lands situated in 96 villages in Thane and Raigad districts were notified under Section 4(1) of the said Act for the public purpose of setting up of satellite city of New Bombay in between the years 1967-72. Large number of Appeals arising out of the Awards under Section 18 came to this Court. As far as the village Panvel and Kamothe are concerned, certain Appeals were decided by Division Bench of this Court on 25/26th February, 1996. The Division Bench decided First Appeal No.754 of 1986 (Nama Padu Hudar & Ors. V/s. 5 fa1059-1020 State of Maharashtra) and other connected Appeals. This Court considered the location of villages Kamothe and Panvel and adopted a method of fixing the market value on the basis of the distance of the acquired lands from the Bombay Pune National Highway. The said method adopted by this Court was confirmed by the Apex Court in the case of Shantadevi Hariram Ruparel V/s. Special Land Acquisition Officer (Civil Appeal No.1557 of 2006 decided on 6th March, 2006). Another Division Bench in the case of State of Maharasthra V/s. Prakash V. Deodhar (Supra), had occasion to deal with First Appeals arising out of the Awards in References under Section 18 of the said Act in relation to the lands at village Kamothe and Panvel. The Division Bench fixed the market value consistent with the decision in the case of Nama Padu Hudar (Supra). In case of the lands falling within 750 meters of the National Highway, the market value has been fixed at Rs.25/- per square meter. In case of lands falling within 750 to 1500 meters of the National Highway, the market value has been fixed at Rs.23/- per square meter. The third category made was all the lands falling 1500 meters of the National Highway for which the market value of Rs.21/- per square meter was fixed. The said decision of the Division Bench as also the decision in the case of Nama Padu Hudar (supra), have become final. 6 fa1059-1020 6. Perusal of the impugned Judgments show that apart from making a reference to the report and evidence of valuer, the Trial Court has relied upon its own decisions in the references under Section 18 of the said Act. The trial Court was conscious of the fact that the market value will have to be fixed on the basis of the distance of the acquired land from the Bombay Pune National Highway. Thus, the findings of the Reference Court as regards market value are based only on the decisions of the Reference Court in some of the Land Acquisition References. In view of the law laid down by this Court in the case of State of Maharashtra V/s. Prakash V. Deodhar (Supra), the market value will have to be determined on the basis of the said decision of the Division Bench. 7. The learned counsel appearing for the claimants relied upon an instance of lease of the year 1969 to which a Reference has been made in the valuation report of Mr. Vaidya, an expert valuer. It is not in dispute that the primary evidence in the form of the document of lease has not been produced before the trial Court. Law is well settled on this aspect. The report of the valuer by which valuation is made on comparison method becomes relevant provided the sale instances relied upon by the expert are produced and proved before the Reference Court. Apart from this, the valuer has not given any particulars such as the location of the land 7 fa1059-1020 subject matter of the lease, the area thereof and the nature of the land subject matter of the lease. All that he has stated read thus: “The land rate realised in Burma shall lease instance is Rs.42/- per square meter as on the year 1969.” Thus, reliance cannot be placed on the so called instance of lease. In absence of the primary evidence and in absence of any evidence of comparability, only on the basis of the location shown in the map of the said instance it cannot be considered. 8. It is not in dispute that if the decision of the Division Bench in the case of State of Maharashtra V/s. Prakash V. Deodhar (Supra) is to be applied, the market value in both the cases will be Rs.25/- per square meter. 9. In both the cases, the Awards under Section 11 of the said Act have been made on 16th July, 1981. Thus, the Awards have been made prior to 30th April, 1982, and, therefore, the claimants will not be entitled to benefit under Section 23(1-A) of the said Act. Therefore, The Appeals must partly succeed and the Cross- Objections must fail. I pass the following order: :: O R D E R :: i. The impugned Judgments and Awards in Land 8 fa1059-1020 Acquisition Reference No.159 of 1994 and 36 of 1995 are modified and the market value is brought down to Rs.25/- per square meter from Rs.35/- per square meter. That part of the impugned Awards which grant statutory benefit under Section 23(1-A) of the said Act is quashed and set aside. However, rest of the impugned Awards including grant of statutory benefits under Sections 23(2) and 28 of the said Act are maintained. Order of the costs passed by the Reference Court is also maintained. First Appeal No.1059 of 2002 and 1020 of 2003 are accordingly partly allowed with no order as to costs. ii. The Reference Court shall determine compensation payable to the claimants in terms of the modified Awards within a period of three months from the date on which writ of this Judgment is received by the said Court. After determination of the amount, the Reference Court will forthwith allow the claimants to withdraw an amount of compensation payable to them. iii. Cross Objection Stamp No.44421 of 2003 is dismissed with no order as to costs. 9 fa1059-1020 iv. Civil Application No.6755 of 2007 is allowed in terms of prayer clause (a). v. Correction of the cause title also be carried out in both the First Appeals on the basis of the said order. vii. Cross Objection Stamp No.44423 of 2003 is dismissed with no order as to costs. (A.S.OKA, J.)