IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION LAND LAND LAND ACQUISITION REFERENCE NO. 4 OF 1993. ACQUISITION REFERENCE NO. 4 OF 1993. ACQUISITION REFERENCE NO. 4 OF 1993. Special Land Acquisition Officer (4) B.S.D., D.N.Road, Andheri (West), Bombay 400 058. Versus. 1. M/s.Majas Land Development Corporation, 83, Jolly Maker, Chamber II, Nariman Point, Bombay 400 023. .., Claimants. and 2. The Executive Engineer, Road Development Divn.IV, Andheri P.W.D., D.N.Road, Andheri (W), Bombay-58. ... Acquiring Body. Ms.S.M.Dandekar, A.G.P. for the SLAO and the Acquiring Body. Shri Rajesh Shah with Ms.R.R.Matkar for the Claimant. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 6th, 7th and 22nd : 6th, 7th and 22nd : 6th, 7th and 22nd August August August 2007. 2007. 2007. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Submissions were substantially completed on the last date. Today I have heard further submissions of the learned Counsel appearing for the parties. 2. This reference is under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act of 1894"). The acquired land subject matter of : 2 : 2 : 2 : the present Reference is survey No.11, Hissa No.2 and Survey No.13 Hissa No.2 admeasuring 19,495.90 sq.meters situated at village Majas, Taluka Andheri, District Bombay Suburban. The acquisition of the said land is for construction of Jogeshwar-Vikhroli Link Road. A notification dated 27th August 1975 was issued under sub-section (2) and (4) of section 126 of the Maharashtra Regional and Town Planning Act, 1966 read with section 6 of the said Act of 1894. The notification was published in the Maharashtra Government Gazette dated 9th October 1975. Thus in view of sub-section (2) of section 126 of the said Act of 1966, the relevant date for determination of the market value is 9th October 1975. 3. The Award under section 11 of the said Act was made on 24th may 1980 by the Special Land Acquisition Officer. The Special Land Acquisition Officer offered market value at the rate of Rs.25/- per sq.meter to the Claimants. The Special Land Acquisition Officer also offered solatium at the rate of 15% per annum. It must be noted here that the claim made by the Claimants under section 9 of the said Act was at the rate of Rs.60/- per sq.yard. In the present reference under section 18 of the said Act, the Claimants have claimed market value at the rate of Rs.60/- per sq.meter. : 3 : 3 : 3 : 4. The Claimants filed affidavit in lieu of evidence of shri R.Ramchandra Pillai. The said Shri Ramchandra Pillai is a partner of the claimants-firm. The Claimants also filed an affidavit in lieu of examination-in-chief of Shri Harshad S.Maniyar, a Chartered Engineer. Apart from examining the said witnesses, the Claimants have placed reliance on the valuation report dated 28th March 2007 prepared by Shri H.S.Maniyar. The Claimants have placed on record several documents in support of their case. 5. The acquiring body in the present case is the Executive Engineer, Road Development Division-IV, Andheri PWD, Mumbai. The acquiring body has filed an affidavit in lieu of evidence of Shri Sanjay Raghunath Kurvey, Deputy Director of Town Planning Greater Mumbai. Along with the said affidavit, the original valuation report as well as certain original documents were also placed on record. The witnesses examined by the parties were cross-examined before the Court Commissioner appointed by this Court. 6. The learned Counsel appearing for the Claimants has taken me through the documents and evidence on record. The learned Counsel for the Claimants has relied upon the evidence of the witnesses and the valuation report submitted by Shri H.Maniyar. He has : 4 : 4 : 4 : placed reliance on the Award made under section 11 of the said Act by the Special Land Acquisition Officer on 31st January 1975. The said Award (Exhibit "F") in case No.LAQ/136 is in respect of land bearing Survey No.63(part), 65A/1 (part), and 65A/2 (part) of village Majas. He pointed out that the Land the subject matter of the said Award is comparable to the acquired land which is the subject matter of this reference. He pointed out that the Special Land Acquisition Officer valued the land subject matter of the said Award at Rs.45/- per sq.meter. He pointed out that the owner of the land which is the subject matter of the Award bearing LAQ No.136 had filed a Reference under section 18 of the said Act in this Court. He relied upon the order passed in the Reference by which the market value was fixed at Rs.49.50 per sq.meter. He pointed out that in case of award LAQ-136, the notification under sub-sections (2) and (4) of section 126 of the said Act of 1966 was issued on 26th march 1971 and the same was published in the Official Gazette on 3rd February 1972. He pointed out that considering the fact that the relevant date in the said case was of the year 1972, the market value of the year 1975 will have to be determined. He placed reliance on a decision of the Division Bench of this Court in Appeal No.164 of 1997 by pointing out that this Court has accepted the fact that there is a steep increase in the market value of the : 5 : 5 : 5 : immoveable property in the city of Mumbai. He pointed out that the witness examined by the acquiring body has placed reliance on two awards under section 11 of the said Act made on 23rd March 1997 and 31st March 1978. He pointed out that in respect of the Award dated 23rd March 1997 (Case No.LAQ/SR/43 Majas 1 & 2) the Special Land Acquisition Officer fixed the market value at the rate of Rs.25 per sq.meter. He pointed out that the acquiring body has relied upon the said Award by pointing out that the same relates to the land which is comparable with the acquired land in the present case. He invited my attention to the fact that in case of the said Award a reference was filed being Land Acquisition Reference No.34 of 1977 in this Court which was decided on 29th April 1987. He submitted that this Court fixed market value at the rate of Rs.38/- per sq.meter. He pointed out that the land subject matter of the said Award is situated far away from the Western Express Highway as compared to the acquired land subject matter of the present reference. He, therefore, submitted that even going by the sale instance in the form of the said Award relied upon by the acquiring body, the Claimant will be entitled to the market value at the rate of at Rs.38/- per sq.meter. He pointed out that the acquiring body itself relied upon the said Award bearing No.LSQ/SR/43/Majas. : 6 : 6 : 6 : 7. The learned Government Pleader submitted that the land which is the subject matter of the Award bearing No.LAQ/136 is very close to and abutting the Western Express Highway. She pointed out that the land has a direct frontage and access to the Western Express Highway, whereas the acquired land is at some distance from the Western Express Highway. She submitted that there is no direct access or frontage to the acquired land on the Western Express Highway. She submitted that the judgment in Land Acquisition Reference No.14 of 1977 arising out of the Award bearing No.LAQ/136 is by consent. Similarly she submitted that the order passed in Land Acquisition Reference No.34 of 1997 is passed by the consent of the parties and therefore, the market value cannot be determined on the basis of the said judgment. She pointed out that the land subject matter of the Award LAQ/136 is far more superior than the acquired land subject matter of the reference. He pointed out that there is a cemetery very close to the land under acquisition. Moreover she submitted that the area of the land subject matter of LAQ/136 is 2608.90 sq.meters and the area of the acquired land is six times more than the area of the land subject matter of LAQ/136. She, therefore, submitted that no case is made out for grant of enhancement in market value. 8. The learned Counsel for the Claimants in : 7 : 7 : 7 : rejoinder submitted that there is no difference between the land having area of more than 2500 sq.meters and a smaller land considering the Rules regarding the FSI contained in the relevant Development Control Regulations. He submitted that the Claimants are entitled to the enhancement in compensation. 9. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to refer to the evidence on record. 10. Shri R.Ramchandran Pillai has stated in his affidavit in lieu of examination in chief that he has been a partner of the Claimants-firm since its inception i.e. from the year 1964. He has stated that since 1964 he has been in the overall supervision of all the immoveable properties including the acquired land. He has stated that in the year 1975 he was personally acquainted with the situation, description and status of the acquired land as he used to visit the acquired land on weekly basis. 11. He has stated that the acquired land was a levelled land and did not require any filling whatsoever since it was a flat and hard land. He has stated that the acquired land was abutting the Western Express Highway and access to the acquired land was through an : 8 : 8 : 8 : internal road which was joined to the Western Express Highway and Jogeshwari Station Road. Jogeshwari Station Road was bifurcated under the Western Express Highway, one road leading to the acquired land and the other road leading to the squatters colony. He has stated that Jogeshwari Station was 700 meters from the above bifurcation and the acquired land was situated at a distance of 325 meters from the said bifurcation. He stated that access to the acquired land was a developed road which was tarred and asphalted. He has stated that in the year 1975, the Bombay Electricity and Transport Undertaking buses used to ply between Jogeshwari Railway Station to the bifurcation under the Western Express Highway. According to him the stretch between the bifurcation and the acquired land could be covered by a four minutes walk or by an auto rickshaw. He has stated that the road leading to the Railway Station was fully developed with residential buildings, shops and commercial premises on either side of the Station Road. 12. He has stated that to the north of the acquired land there was a factory of S.C.Brothers, Mechanical and Structural Engineers which employed more than 400 workmen. He has stated that towards north-west there is Satguru Nanak Industrial estate, which houses various industrial and small scale industrial units. He has stated that to the north east of the Western Express : 9 : 9 : 9 : Highway and beyond the acquired land, there is SRP Force Unit No.8 and residential-cum-training institute housing Police personnel all throughout the year. He has stated that on the same location there is a residential cum commercial establishment of Aarey Colony. According to him, the acquired land had a frontage of 217 meters on the Western Express Highway and had a very high degree of commercial potential for display of sign boards. According to him the acquired land was located in a well developed locality with residential buildings/complexes of commercial and industrial premises. He stated that the acquired land was encumbered with unauthorised structures with shanties constructed by attaching tarpaulin to four bamboo sticks by unauthorised occupants and encroachers who were not the tenants of the Claimant. According to him 22 tenements belonging to one Smt.Laxmibai Nayak were standing on the acquired land and were constructed with N.A. permission. He stated that the said 22 tenements belonged to the Claimants. He has stated that the Claimants were neither aware of any application for N.A. permission made by the said Laxmibai nor consented to any N.A. permission being granted to the said Laxmibai Nayak. 13. Thereafter the witness referred to the Award in LAQ-136 declared by the Special Land Acquisition Officer. He stated that the land subject matter of the : 10 : 10 : 10 : said Award was located at a distance of 350 meters from the point from which Jogeshwari-Vikhroli Link Road starts from the Western Express Highway towards the southern side of the acquired land. He stated that the distance between the acquired land and the land subject matter of the said Award was only 350 meters. The said witness has been cross-examined by the learned Government Pleader and it will be necessary to refer to the cross-examination of the said witness. 14. In the cross-examination Shri Ramchandran Pillai has stated that the acquired land was a non-agricultural land. He, however, stated that he was not having any documentary evidence to that effect. He admitted that at that time the land was occupied by 728 unauthorised structures/hutments and the acquired land was heavily encroached upon. He stated that the total area of the acquired land was 19495.9 sq.meters and it was a big plot of land. When his attention was drawn to a map on record, he stated that survey No.11/2 starts from Western Express Highway. However, survey No.11 has not been mentioned specifically on the plan. He thereafter stated that survey No.13 starts from the boundary line now marked as "A" and "B". However, the starting point to this effect has not been shown exactly in this map. When a question was asked to him as to whether the distance between Survey No.13 and Western Express : 11 : 11 : 11 : Highway is about 716 meters, he stated that it was not possible for him to state the exact distance. He stated that the distance between Jogeshwari Railway Station and Western Express Highway is approximately 700 meters and below the Western Express Highway there is a sub-way and from the sub-way the acquired land is at a distance of 325 meters. He reiterated that the statement made in the affidavit that the distance from the Western Express Highway to the acquired land is four minutes walk. He stated that the acquired land is a very large portion of the land. He stated that the total area of the land held by the Claimants bearing Survey No.11 Hissa No.2 was 73,500 sq.meters out of which a large portion has been acquired for the purpose of construction of Jogeshwari-Vikhroli Link Road. 15. He stated that originally the land covered by Survey No.13 (part) and survey No.11/2 were agricultural lands and subsequently they were converted into non-agricultural land under the orders of the Collector of Mumbai. However, he was not having any documents to show that the lands were converted into non-agricultural land. He stated that Western Express Highway is almost on the same level as that of the acquired land. He stated that there was an approach road from Jogeshwari Railway Station to acquired land even before construction of Western Express Highway. : 12 : 12 : 12 : 16. He stated that the distance between Jogeshwari Railway Station and the Squatters’ colony is one kilometer and the squatters colony is located at a distance of 3 to 4 furlongs from the acquired land. He admitted that there was a cemetery near the acquired land and near the Western Express Highway. He admitted that there was no direct access to the acquired land from the Western Express Highway and the access was through the internal road. He denied the correctness of the suggestion that there was no commercial value to the acquired land before the construction of Jogeshwari-Vikhroli Link Road. After referring to a plan on record, he admitted that the cemetery shown in the plan comes first which is situated on the Jogeshwari Vikhroli Link Road adjacent to the Western Express Highway. He denied the suggestion that the industries referred to in paragraph 8 of his affidavit in lieu of evidence were emitting pollutants and were not conducive for residential purpose. 17. He admitted that the area of the land subject matter of the Award LAQ/136/75 was a small area compared to the size of the acquired land. In response to a question, he stated that the entire land covered by conveyance dated 3rd March 1973 is a non-agricultural land. When a question was asked as to whether the names : 13 : 13 : 13 : of Khemchand Gorumal and P.D.Hinduja appear as lessees in the record of rights, the witness pleaded ignorance about it. 18. In the further cross-examination he denied the suggestion that the encroached land will fetch lesser price than an open piece of land. He stated that it not correct to say that there are no purchasers to purchase the land encroached upon as compared to the purchasers for open land. His attention was invited to the Award dated 29th April 1987 (Exh.H). A suggestion was given that the said land subject matter of order dated 29th April 1987 was an open piece of land. He denied the correctness of the suggestion. A suggestion as given to the witness that indenture dated 3rd March 1972 is a freehold land with reversionary interest to the vendors who are tenants in common. However, he denied the correctness of the said suggestion. 19. It must be noted here that the Claimants filed an affidavit of evidence of Shri Harshad Sunderlal Maniar on 9th April 2007. Shri Sanjay Kurvey a witness examined by the Acquiring Body filed an affidavit on 17th July 2006. Before cross-examining the expert appointed by the claimants, the Cross-examination of Shri Sanjay Kurvey was recorded. However, for the sake of convenience I am firstly referring to the evidence of : 14 : 14 : 14 : Shri Harshad Maniar, an expert appointed by the Claimants. Shri Maniar stated that he was an Engineer, Surveyor and Registered Estate Valuer. He has set out his educational qualifications in the affidavit. He stated that on instructions of the claimants he inspected the acquired land and prepared his valuation report on 28th March 2007. He proved the correctness of the said valuation report. According to him, the market value of the acquired land on 9th October 1975 i.e. relevant date is Rs.67/- per sq.meter. He relied upon the instance of land subject matter of LAQ/136. The said expert witness has been extensively cross-examined by the Government Pleader. It will be necessary to refer to the cross-examination of Shri Maniar. He admitted that he had seen the land on 17th March 2007. He stated that he had visited the suit land on a number of times, but not with a view to prepare valuation report. A specific question was asked to the witness whether he is in a position to say what was the nature and description of the acquired land in the year 1975. The response of the witness was that for the purpose of preparing valuation report he had referred to the affidavit of Shri R.R.Pillai, the first witness of the Claimants in so far as the situation and location of the acquired land is concerned. 20. He was given a suggestion that though the land : 15 : 15 : 15 : was acquired in the year 1975 possession of the land was not taken till 1995 as the land was fully encroached upon. A question was asked to the said witness whether he was aware that the acquired land was purchased under a registered conveyance dated 31st March 1973, the witness replied that he had not gone through the document and he would go through the document and answer the question on the next date. 21. On the basis of opinion expressed in valuation report, a question was asked to the witness as regards allowance minus 10%. The question asked and the answer given are as under: "23. With regard to the area of the land under acquisition, you have given allowance minus 10%. I put it to you that the allowance made is much less. It should have been in the range of 25% to 30%. A. I do not agree. The allowance is only for the quantity allowance and not for any other purpose." He also accepted that there was a difference of about 8 times in the area of the land under sale instance i.e. Award bearing No.LAQ/136 and the land under acquisition. : 16 : 16 : 16 : When a question was asked whether for a smaller plot, price fetched is higher than a bigger plot, his reply was that as per the Development Control Regulations if the size of the plot is more than 2500 sq.meters, then no deduction is required for compulsory open space and the access roads. He stated that since the area of the land under sale instance (LAQ/136) is more than 2500 sq.meters, no allowance has been made between two lands having different areas. 22. Shri Maniar candidly admitted that he had no personal knowledge about the land under acquisition. He also admitted that if one buys a quantity in bulk, the price will be less. About the rise in valuation of the land, he stated that looking to the prices of land from 1972 to 1975, rise in value of land was much higher than 12.5% per annum. He stated that he had adopted the rate on the lower side because he was experienced. He stated that the cost of land as shown in conveyance dated 31st March 1973 by which the acquired land was purchased by the Claimants was approximately at 59 paise per sq.meter. He stated that there were encroachments on the land subject matter of the award LAQ/136 as well. He stated that the acquired land subject matter of the Award LAQ-136 was closer to the Jogeshwari Railway Station than the land subject matter of this reference. He stated that the land under acquisition was at a : 17 : 17 : 17 : distance of 810 meters as the crow flies from Jogeshwari Railway Station. He stated that it takes about 15 minutes to go to the acquired land from Jogeshwari Railway Station. 23. About his opinion that frontage of the acquired land abutting Highway was 217 meters, he stated that 100 feet frontage is correct width of the road and not 217 meters. He stated that the distance between the acquired land and the land subject of the Award LAW/136 was 400 meters. He accepted that the land subject matter of the Award LAQ-136 has a frontage on both the sides of the Western Express Highway and the width of the frontage is 56 feet i.e. about 18 meters. He stated that both the lands were having the same potential. 24. Now coming to the cross-examination of Shri Kurvey, as stated earlier, it must be pointed out that his affidavit of examination-in-chief was filed even before the affidavit of examination-in-chief of Shri Harshad Maniar was filed by the Claimants. The cross examination of the said witness is on Exhibit R4 and R5, the two awards relied upon by him. He admitted that in his valuation report he relied upon the award of the Special Land Acquisition Officer as he found the same to be correct. He admitted that the Award LAQ/136 (Exhibit : 18 : 18 : 18 : F) relied upon by the Claimants was a relevant sale instance for the purpose of comparable Sale Valuation Method. He admitted that though the area of the land subject matter of Exhibit "F" was smaller than the