ash 1 fa-384andXObjcn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO.384 OF 1989 WITH CROSS OBJECTION ST. NO. 14586 OF 1989 The State of Maharashtra .. Appellant Vs Abdul Rahiman Abdul Kadir Tidhare & Others. .. Respondents -- Shri A.R. Patil, AGP for the Appellant. Shri D.S. Sawant for the Respondents. -- CORAM : A.S. OKA, J DATED : 17TH JANUARY, 2011 ORAL JUDGMENT : . This Appeal takes an exception to the judgment and award dated 30th January, 1988 passed by the learned Civil Judge, Senior Division, Raigad at Alibag, in a Reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”). The lands subject matter of acquisition are admeasuring 17,700 sq. metres which are more particularly described in Paragraph 2 of the impugned judgment and award. The lands are situated at Village Pendhar, Taluka – Panvel, District – Raigad. A notification under Section 4 of the said Act was issued on 3rd February, 1970. The purpose of acquisition was for setting up of a Satellite of City of New Mumbai. The award under Section 11 of the said Act was made on 31st January, 1986. Market value at Rs.6/- per sq. metre has been awarded by ash 2 fa-384andXObjcn the impugned judgment and award together with the statutory benefits under Sections 23(1-A), 23(2) and 28 of the said Act. 2. There is a Cross Objection filed by the Respondents who are the original Claimants in the Reference under Section 18 of the said Act. Initially, the Respondents prayed for market value of Rs.12/- per sq. metre by filing a Cross Objection. By an order dated 10th January, 2011 passed in Civil Application No. 3809 of 2008, this Court permitted the Respondents to enhance the claim upto Rs.22/- per sq. metre. 3. The Learned AGP for the Appellant submitted that no case was made out to grant enhancement in the market value inasmuch as the Respondents failed to discharge their burden of proving that the market value fixed by the Land Acquisition Officer was inadequate. He pointed out that the market value at Rs.1.50 per sq. metre was fixed by the Special Land Acquisition Officer which is reasonable, and there was no scope for enhancement of the compensation. 4. Learned counsel appearing for the Respondents placed reliance on a Judgment and Order dated 16th March, 2000 passed by the Division Bench of this Court ( A.P. Shah and J.A. Patil, JJ ) in First Appeal No.875 of 1985 and other connected Appeals. He submitted that in case of similarly situated lands from the same village, the Division Bench has fixed the market ash 3 fa-384andXObjcn value at Rs.22/- per sq. metre. He submitted that the benefit of Section 28 of the said Act has not been fully extended to the Respondents. In reply, the learned AGP submitted that in absence of any evidence on record, there is no scope for grant of enhancement of compensation. 5. I have given careful consideration to the submissions. It is not in dispute that large tracts of lands from various villages in Taluka – Panvel in the District – Raigad and Taluka -Thane, District – Thane were notified under Section 4 of the said Act on 3rd February, 1970 for the purposes of setting up Satellite of Navi Mumbai. In fact, various lands from the same village Pendhar were notified under the said Notification. The Judgment and Order dated 16th March, 2000 was passed by the Division Bench of this Court in First Appeal No.875 of 1985 and other connected Appeals. The Appeals were directed againt the awards made in references under Section 18 of the said Act in relation to acquisition of lands situated at village Pendhar and several other villages in Taluka Panvel, Raigad District. It is not in dispute that the lands subject matter of the said group of appeals pertaining to the Village Pendhar were also notified under Section 4 of the said Act on 3rd February, 1970. The Division Bench divided the lands in different categories on the basis of the distance of the acquired lands from Mumbai- Pune Highway. Paragraph 7 of the judgment discloses that in case of those lands from village Pendhar which were abutting highway, the market value of the lands was fixed at Rs.25/- per sq. metre. In case of the lands which were ash 4 fa-384andXObjcn situated at a distance of 480 meters from Mumbai-Pune Highway, the market value was fixed only Rs.20/- per sq. metres. 6. In case of villages Kamothe and Panvel, another Division Bench of this Court in the case of Nama Padu Hudar v. State of Maharashtra decided on 25th/26th February, 1993 in First Appeal No. 754 of 1986 adopted the same method of fixing the market value by valuing the lands on the basis of its distances from the Mumbai-Pune National Highway. The view taken by the Division Bench of this Court in the said case has been expressly affirmed by the Apex Court in its decision dated 6th March, 2006 in Civil Appeal No. 1557 of 2006 ( Shantadevi Hariram Ruparel Vs. Land Acquisition Officer an another ). Thus, this method of fixing the market value of the lands acquired for the purposes of New Mumbai Project depending upon its distance from Mumbai-Pune Naitional Highway has been affirmed by the Apex Court. Therefore, there is no reason why the decision relied upon by the learned counsel appearing for the Respondents should not be relied upon by this Court for deciding this Appeal. 7. The Respondents examined Mr. Jeevan Kulkarni as a Valuer. He stated in the cross-examination by the Government Pleader that the acquired land was situated at a distance of 640 metres from the said Highway. In the judgment and order dated 16th March, 2000 ( Abdul Aziz Husenmiya Patel Vs. Special Land Acquisition Officer ), the Division Bench ash 5 fa-384andXObjcn fixed the market value of the lands in the said village abutting the National Highway at Rs.25/- per sq. metre. The Division Bench fixed the market value at the rate of Rs.22/- per sq. metres in respect of the land from the same village situated at a distance 480 sq. metres from the National Highway. In the present case, the acquired land is located at a distance of 640 metres from the said Highway. Hence, the market value can be reasonably fixed at a rate of Rs.19/- per sq. metre. The Division Bench made a deduction of 10% on account of development charges. In the present case, a deduction will have to be made at 10% and hence, market value will have to be fixed at Rs. 17.10 ps per sq. metre. 8. Perusal of the clause (4) of Paragraph 8 of the impugned judgment and award shows that the interest at the rate of 9% per annum has been granted on the enhanced amount of compensation from the date of possession till realisation of the whole amount. Section 28 of the said Act reads thus: - “28. Collector may be directed to pay interest on excess compensation.- If the sum which, in the opinion of the Court, the collector ought to have awarded as compensation is in excess of the sum which the collector did award as compensation, the award of the Court may direct that the collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court: Provided that the award of the Court may also direct that where such excess or any part thereof is paid ash 6 fa-384andXObjcn into Court after the date of expiry of a period of ne year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.” The interest at the rate of 9% per annum is payable on the excess amount for a period of one year from the date on which the possession of the acquired land is taken and on expiry of a period of one year, the interest is payable at the rate of 15% per annum. There was no reason to deny the interest at the rate of 15% per annum. To that extent, the Trial Court has committed an error. 9. Hence, there is no merit in the Appeal. The Cross Objection will have to be allowed in part and I pass the following order :- ORDER (i) First Appeal No. 384 of 1989 is dismissed with no orders as to costs. (ii) The Cross Objection is partly allowed. The market value of the acquired land is fixed at the rate of Rs. 17.10 ps per sq. Metre. In addition, the Respondents will be entitled to statutory benefits under Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act, ash 7 fa-384andXObjcn 1894. The Cross-Objection is partly allowed subject to condition that the Respondents will deposit the deficit Court fees within a period of two months from today. (iii) If the deficit Court fee is not deposited within the stipulated time, the Cross Objection will stand dismissed automatically without further reference to the Court. (iv) The Respondents will be entitled to proportionate costs of the Reference and Cross-Ojbection. (v) The Reference Court shall determine the compensation payable in terms of the modified Award within a period of three months from the date on which the writ of the judgment is received by the said Court. The interest under Section 28 of the said Act shall be payable in accordance with observations made in Paragraph 8 above. (vi) It is obvious that the computation of the amount will be made after hearing both the parties. ash 8 fa-384andXObjcn (vii) The excess amount shall be deposited by the Appellant with the Reference Court within a period of three months from thd ate of determination of the amount by the Reference Court. JUDGE