1 fa270-92j IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO.270 OF 1992 Vasantrao Vishnu Patil ] (Since deceased through his LR's) ] 1a) Satish Vasantrao Patil. ] b) Deepak Vasantrao Patil ] c) Manoj Vasantrao Patil ] d) Ms. Savita Vasantrao Patil ] ] 2. Ravindra Vishnu Patil ] .. Appellants ] (Claimants) 3. Sudhir Vishnu Patil ] V/s. The Special Land Acquisition ] Officer No.14, Pune. ] .. Respondent ..... Mr. P. N. Karlekar for the appellants. Mr. A. R. Patil, AGP for respondent – State. ..... CORAM : A. S. OKA, J. DATE : MARCH 25, 2011. ORAL JUDGMENT :- Heard the learned counsel appearing for the parties. Appellants are the original claimants in a Reference under Section 18 2 fa270-92j of the Land Acquisition Act, 1894 (hereinafter referred to as the “said Act”). The acquisition relates to the land bearing Survey No.57/1-A and City Survey No.1/A/1/2 at village Nagargaon, Taluka Mawal, District Pune admeasuring 3339.94 square meters. Notification under Section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 read with Section 6 of the said Act was issued on 30th March, 1980. By an Award under Section 11 of the said Act, the market value was offered at the rate of Rs.25/- per square meter. The Appellants did not accept the said offer and at their instance, a reference under Section 18 of the said Act was made. 2. The learned Joint District Judge dismissed the Reference and confirmed the Award passed by the Special Land Acquisition Officer on 6th December, 1982. In the reference, the appellants claimed the market value of the acquired land at the rate of Rs.161.40 paise per square meters i.e. Rs.15/- per square feet. By this Appeal the challenge is to the Award dismissing the reference under Section 18 of the said Act. 3. The learned counsel appearing for the appellants has taken the 3 fa270-92j Court through the notes of evidence and other documents on record. He pointed out that the appellants had discharged burden on them by producing certified copies of various sale deeds. The appellants examined Mr.Gangadhar Dattatraya Karkare, an expert Valuer as a witness. He submitted that the evidence of the said witness has not been properly appreciated by the Reference Court. He submitted that pre-notification sale instances and post notification of the sale instances cannot be said to be irrelevant for determination of the market value. He submitted that the burden of showing that the market value offered by the land acquisition officer was inadequate was discharged by the appellants and there is no evidence adduced by the State Government. The learned A.G.P. supported the impugned Judgment and Award. 4. I have given careful consideration to the submissions. I have perused the record including the valuation report at Exhibit 19. Perusal of the report at Exhibit-19 shows that reliance was placed on 5 instances in the form of sale deeds executed on 21st May, 1979, 23rd April, 1981, 4th March, 1982, 8th April 1982 and 21st June 1982. The said sale deeds are at Exhibits 13,16,14,15 and 17 4 fa270-92j respectively. A sketch showing the location of the acquired land has been annexed to the report. On this aspect, it will be necessary to make a Reference to the examination as well as cross-examination of the valuer Mr. Karkare. He stated that the sale instances at Exhibits-14, 15 and 17 of the year 1982 were not directly useful for determination of market value of the acquired land. He stated that the said instances were relevant only to show trend of rising prices. He relied upon the sale deed dated 23rd April, 1981 (Exhibit-16) in respect of plot No.12 out of Survey No.57. The said sale deed discloses the market value at the rate of 36.75 per square meters. The learned trial Judge has recorded reasons for discarding the said sale instance. Apart form the reasons recorded by the learned trial Judge, it appears that the expert valuer has not stated anything about the comparability of the land subject matter of the said sale deed with the acquired land. In fact, in the cross-examination, the expert witness stated that he has not considered the said sale instance at Exhibit 16 for fixation of the market value. 5. In the circumstances, it is not possible to find fault with the approach of the trial Judge as far as this sale deed at Exhibit-16 is 5 fa270-92j concerned. Exhibit 13 is the sale deed dated 13th March, 1979 which reflects market value at Rs.38.71 per square meter. It must be noted here that the said sale instance is accepted by the learned trial Judge as relevant. The learned Judge made 1/3rd deduction on account of development charges and came to the conclusion that the market value will be Rs.25.71 paise. The learned Judge, therefore, observed that there is no difference between the market value offered by the land acquisition officer and the market value arrived at on the basis of the said sale instance. It is true that the sale instance at Exhibit-13 is of a small developed plot. Hence, a deduction of 33% on account of development charges will have to be made for determining the market value of the acquired land, which is having a larger area as compared with the area of sale deed plot. However, the transaction reflected from the sale deed is 21st March, 1979. The valuer stated that the acquired land is situated on the main Bazar road which is near the Railway Sation, Lonavala. In the evidence of the expert, he has given topography of the area and in particular the acquired land. He stated that the acquired land is situated within the Municipal limits of the Lonavala and is surrounded by the building development. As the acquired land is situated on the main bazar 6 fa270-92j road leading from railway station of Lonavala to Nagargaon, for fixing the market value of the acquired land as in March 1980 on the basis of the sale instance of 25th March, 1979, the learned trial Judge ought to have been taken into consideration, the 10% escalation. The reason is that the acquired land being situated within limits of Municipal Council like Lonavala and in close proximity of bazar area, it can be safely presumed that there must be steady raise in the prices of the lands in the area. Thus, adding 10% to Rs. 38.71 per square meter, the market value as in March, 1980 can be taken at Rs.42.58. 1/3rd amount will have to be deducted on account of development charges. After deducting 1/3rd i.e. Rs.14.19, the market value approximately comes to Rs.28.39 which can be rounded off to Rs.28.50/-. 5. Thus, the appellants were entitled to the market value at the rate of Rs.28.50 per square meters. In the present case, the Award under Section 11 of the said Act has been made on 6th December, 1982. The Reference Under Section 18 was pending when 1984 amendment of the said Act came into force. Therefore, in addition to the market value, the appellants will entitled to the statutory benefits 7 fa270-92j under Section 23(2) and under Section 28 of the said Act. 6. Hence, appellants must succeed in Appeal and I pass the following order : :: O R D E R :: i. The impugned Judgment and Award dated 12th July, 1990, is quashed and set aside. ii. The Land Acquisition Reference No.230 of 1983 is partly allowed and the market value of the acquired land is fixed at Rs.28.50 per square meter (inclusive of the market value offered by the Special Land Acquisition Officer). iii. Thus, appellants shall be entitled to enhancement of the market value at the rate of Rs.3.50 per square meter. In addition, the appellants will be entitled to solatium under Section 23(2) and interest under Section 28 of the Land Acquisition Act, 1894. 8 fa270-92j iv. The appellants will be entitled to the proportionate costs of this Appeal as well as the Reference. 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 writ of this order is received by the Reference Court. vi. Compensation amount shall be deposited within a period of three months from the date on which the determination amount is made. JUDGE