1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.15 OF 1999 The State of Maharashra ....Appellant V/s. Mohammad Husain Hakiinbhai Jiwaji ....Respondent Mrs.G.P. Mulekar, A.G.P. for the Appellant. Mrs.Teja Katdare for the Respondent. CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ. DATE : 9TH JUNE, 2009. P.C. : 1. This appeal filed under Section 54 of the Land Acquisition Act,1894 (“the Act” for short) arises from an award dated 28.11.1994 passed by the learned Joint District Judge, Raigad – Alibag in L.A.R. No.419 of 1986. 2. The Government of Maharashtra issued a notification under Section 4 of the said Act on 3.2.1970 for acquisition of certain lands for the New Bombay of Twin City, New Bombay Project consisting of 95 villages from Raigad and Thane districts. At that time the Claimant was lessee on the land in survey Nos.125(1)(3), 125/1(6) and 126 admeasuring in all 2 acres 23 gunthas. The said land was also under acquisition as per the notification dated 2 3.2.1970. In the year 1968-1969, the owner of the land had leased out the same along with a few structures to the Claimant for running poultry business and after obtaining possession, the Claimant had developed the poultry farm after obtaining due permission and constructed suitable poultry sheds. When the Land Acquisition Officer passed the award, the compensation of the land was paid to the original owner and vide his application Exhibit-15, the Claimant had claimed an amount of Rs.12,45,680/- as compensation under different heads viz. cost of construction of poultry sheds, servant quarters, underground water tank, laying of pipe line etc. In addition to he had also claimed compensation on account of business loss, loss of good-will and reinvestment he made in building the new poultry farm at village Kalundre which is located about 20 K.M. away from Panvel. However, the Land Acquisition Officer had granted him only Rs.70,454/-. Not being satisfied, he approached for enhancement under Section 18 of the said Act and the claim has been partly allowed by the impugned award. The Reference Court has granted compensation of Rs. 5,64,671/-. 3. The Reference was opposed by the State Government. But the State Government did not examine any witnesses, whereas on behalf of the Claimant, he himself stepped in the witness box as P.W. No.1 and also examined Jeewan Kulkarni (P.W.2) as the Government valuer. P.W. 2 proved his valuation report at Exhibit-30 3 in his oral deposition. The Reference Court noted in the impugned award that though the Claimant had claimed total compensation of Rs.32.00 lacs, the valuer had valued the total claim of the Claimant at Rs.5,17,000/- in Exhibit-30 and therefore, the valuation made was reliable and it was not exaggerated to favour the Claimant. 4. Mrs.Mulekar, the learned A.G.P has submitted that the valuer in his report Exhibit-30 had also considered the compensation for setting up the poultry farm at the new location which according to her is not permissible more so when the possession of the acquired land was taken over in December, 1985, and till then the Claimant continued to carry out his business from the acquired land. As per Mrs.Mulekar at the most the Claimant was entitled to claim compensation in respect of the structures standing on the acquired land and which structures he had put up for setting up the poultry farm. 5. It is not disputed that though the notification under section 4 of the said Act was issued on 3.2.1970, the possession of the land was taken over only in December, 1985. There is no evidence on record from the Claimant to suggest that he could not carry out his business or he has stopped carrying on his poultry farm on the acquired land till his possession was taken over for New Bombay Project. It is also admitted that the Claimant had put up two poultry sheds, two servant quarters, one store room, overhead water tank, underground water storage tank. He had also laid down 4 G.I. Pipe line for water line, had constructed the approach road, had put up wire fencing and had developed the land so as to level it. In the valuation report at Exhibit-30, the valuation for all these developments made by the Claimant was as under :- a) Poultry sheds Rs.93,000=00 b) Servant quarters Rs.10,964=00 c) Store room Rs. 6,270=00 d) Land development Rs.21,000=00 e) Approach road Rs.10,800=00 f) Compound fencing Rs. 7,200=00 g) Masonary well Rs.10,000=00 h) Overhead tank Rs. 1,200=00 i) Underground tank Rs. 1,200=00 j) GI pipe-line for water supply Rs. 1,035=00 ---------------------- Total Rs.1,62,669=00 ========== 6. In the valuation report at Exhibit-30 the valuer (P.W. 2) has also considered the amount of Rs.2,73,000/- purported to be invested by the Claimant to put up the new poultry farm at village Kalundre after he purchased the land in that village some time in 1976-1977 and on the same amount he also granted interest at Rs. 2,64,000/-. We do not find any justification in awarding the compensation to the Claimant so as to set off his investment in 5 putting up the new poultry farm. Admittedly, the new poultry farm along with the land is owned by the Claimant and he was only a lessee on the acquired land and had constructed the some additional sheds so as to put up a poultry farm. The Reference Court has held that the construction on the acquired land was made in the year 1969 and the notification under Section 4 of the said Act was issued in February, 1970 and therefore, the valuation remained the same. The Reference Court appears to have lost sight of the fact that the Claimant carried out his business from all these old structures till 1985. 7. Be that as it may, in the facts and circumstances of this case, we are satisfied that by going by the valuation report at Exhibit-30, the Claimant is required to be granted compensation only in respect of the sheds he had constructed on the land acquired to carry out the poultry business and that amount comes to Rs.1,68,000/- as against the compensation of Rs.70,454/- granted by the Land Acquisition Officer. We, therefore, find that the impugned award calls for interference and modification. 8. In the premises, this appeal succeeds and it is allowed partly. The impugned award is quashed and set-aside. We hold that the Claimant is entitled for the market value for the old structures at Rs.1,62,669/- and he is not entitled for any loss of profit or loss of good-will. In addition, he will be entitled for 12% interest component as well as 30% solatium as stipulated under the Act. From the total 6 amount so calculated, an amount of Rs.70,454/- received by him from the S.L.A.O. shall be deducted and the balance amount shall be paid to the Claimant, if not so done so far, within a period of two months from today. (S.J.VAZIFDAR, J.) (B.H.MARLAPALLE, J.)