IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION LAR NO. 4 OF 1994 WITH LAR NO. 7 OF 1994 WITH LAR NO. 2 OF 1998 WITH LAR NO. 3 OF 1998 AND LAR NO. 4 OF 1998 LAR NO. 4 OF 1994 The Special Land Acquisition Officers. .. Petitioner. vs. Smt. Anibai Janardhan Patil and others .. Respondents. Mr. M.D. Naik, Asst. Government Pleader for S.L.A.O. Mr. C.M. Korde, Sr. Counsel with D.V. Merchant and Milind Jadhav i/by Pravin Mehta and Mithi & Co. for Claimants. Mr. G.S. Hegde with C.M.Lokesh for the Acquiring Body. WITH LAR NO. 7 OF 1994 2 The Special Land Acquisition Officers. .. Petitioner. vs. Jaganath Anandrao Patil and others .. Respondents. Mr. M.D. Naik, Asst. Government Pleader for S.L.A.O. Mr. C.M. Korde, Sr. Counsel with D.V. Merchant and Milind Jadhav i/by Pravin Mehta and Mithi & Co. for Claimants. Mr. G.S. Hegde with C.M.Lokesh for the Acquiring Body. WITH LAR NO. 2 OF 1998 The Special Land Acquisition Officers. .. Petitioner. vs. Hirabai V. Raut and others .. Respondents. Mr. M.D. Naik, Asst. Government Pleader for S.L.A.O. Mr. C.M. Korde, Sr. Counsel with D.V. Merchant and Milind Jadhav 3 i/by Pravin Mehta and Mithi & Co. for Claimants. Mr. G.S. Hegde with C.M.Lokesh for the Acquiring Body. WITH LAR NO. 3 OF 1998 The Special Land Acquisition Officers. .. Petitioner. vs. Nagubai G. Patil and others .. Respondents. Mr. M.D. Naik, Asst. Government Pleader for S.L.A.O. Mr. C.M. Korde, Sr. Counsel with D.V. Merchant and Milind Jadhav i/by Pravin Mehta and Mithi & Co. for Claimants. Mr. G.S. Hegde with C.M.Lokesh for the Acquiring Body. WITH LAR NO. 4 OF 1998 The Special Land Acquisition Officers. .. Petitioner. vs. 4 Shri Bhalchandra Gagu Patil and others .. Respondents. Mr. M.D. Naik, Asst. Government Pleader for S.L.A.O. Mr. C.M. Korde, Sr. Counsel with D.V. Merchant and Milind Jadhav i/by Pravin Mehta and Mithi & Co. for Claimants. Mr. G.S. Hegde with C.M.Lokesh for the Acquiring Body. CORAM : S.U. KAMDAR, J. DATE: 7TH FEBRUARY,2005. ORAL JUDGMENT : 1. This group of land acquisition references arises out of a common notification and for common public purpose and, therefore, the same is disposed of by this common judgment. 2. By notification issued on 28.7.1989 being notification no. LAQ/DESK/I/B-1/3658/CR-21 by the Commissioner of Konkan Division, the lands were notified for acquisition for the public purpose of Bus depot, Bus Station, staff quarters and other allied works for the Maharashtra State Road 5 Transport Corporation. The said notification was issued under section 6 of the Land Acquisition Act, 1894 read with Section 126 (4) of the Maharashtra Regional and Town Planning Act, 1966. The said notification was published in the Government Gazette on 3.8.1989 3. In the course of acquisition proceedings the claimants were heard by the Special Land Acquisition Officer and ultimately the Special Acquisition Officer by his award dated 25.9.1990 inter alia awarded compensation in favour of the claimants at the rate of Rs. 375 in case where the land has access and the sum of Rs. 125 in case where the land did not have an access road. The SLAO has held as under :- "Considering the existing situation, I estimate the land value of the land under acquisition, as on the date of notification @ Rs. 375/- per sq. mtr. for the land to which Road is available and @ Rs. 125/- per sq. mtr. for the land to which approach road is not available." 4. During the pendency of the said award, the State Government applied an urgency clause and under section 17 of the Land Acquisition Act possession of the land was taken on 30.6.1990 for the purpose of 6 construction of bus depot and other allied services. 5. The said acquisition proceedings were conducted in respect of five owners in respect of various plots the details of which are set out hereinunder :- Name of the Owner AREA Plot No. Area Rate CTS No. Qcquired Awarded S.No.226 S.Q.Mtrs. (Rs.) Janardhan Laxman Patil 2352 Pt. 1 330.14 375.00 Harishchandra Laxman Patil 2349 Pt. 5 1370.40 125.00 Jaganath Anandrao 2350 Pt. 3 740.64 375.00 Patil. 2350 pt. 4 025.48 Mirabai Vasudev Raut 2348 6 675.70 375.00 Mahadev Vasudev Raut Kashinath Vasudev Raut Mukund Vasudev Raut Moreshwar Vasudev 7 Raut Nagubai G.Patil 2347 pt 7 2249.90 375.00 Ramabai Waman Patil Jayantibai N. Patil Jayantibai N. Patil Yamunbai N. Patil Pandurang Balkrishna Patil Balchandra Jagu Patil 2353 2 878.70 375.00 Venubhaui Kashinath Patil 2300 pt. 8 1765.50 125.00 Namdeo Kashinath Patil Motiram Kashinath Patil. Naresh Kashinath Patil Indubai Kashinath Patil Inayak Kashinath Patil Prakash Kashinath 8 Patil 6. Each of the aforesaid owners have filed a separate land acquisition references under Section 18 of the Land Acquisition Act for enhancement. The said references have been forwarded by the Collector for determination by this Court. The said Land Acquisition Reference Nos. are 4/94, 7/94, 2/98, 3/98 and 4/98. Each of the said land acquisition references arise out of the said acquisition are clubbed together and are disposed of by me by this common judgment. 7. By L.A.R. no. 4 of 1994, the claimants have prayed for enhanced compensation of Rs. 1,74,66,470/- The present LARs were heard from time to time and evidence is recorded in respect thereof. The total area of the land in respect of which the acquisition has taken place clubbed together is 936.46 sq. mtrs. The claimants have in their examination-in-chief examined only one witness namely one Shri Hitendra Kisan Mehta, Architect and Valuer and he has given common evidence in respect of all the aforesaid land acquisition references. He has produced valuation report dated 23.8.2004 along with site plan and has relied upon three instances for the purpose of enhancement of the compensation. The 9 Acquiring Body, has, on the other hand, examined one Shri Ashok Gopinath Deshmukh, being the officer of the Acquiring Body, one Prashant Vinayakrao Potdar, another officer of the Acquiring Body. Then one Shri Deepak Sadashiv Dighade. The Acquiring Body has also examined one Shri Ramesh Rayate an Architect and Valuer on behalf of MSRTC and has produced his valuation report dated 3.8.2004. The Acquiring Body has also examined one Mukund Bhagwan Yeragi on behalf of the Acquiring Body as a formal witness. Thus, in all the Acquiring Body has produced the evidence of five witnesses in support of their case. In all various documents are produced before me. The claimants have produced around 14 documents in support of their case whereas the respondents have produced three documents in support of their case. I shall deal with the said documents and the oral evidence while analysing the evidence. 8. In all four sale instances are produced in the course of the evidence. Three of them are produced by witness Mehta of the claimants whereas one of the sale instance is established in the cross-examination of Mr. Rayate, the witness of the respondents herein. The analysis of the evidence and the documents produced briefly are as under:- 10 9. Mr. Mehta who was examined by the claimants has deposed that he is a practising Architect since 1985 and runs the firm known as H. Mehta & Associates. In his examination he has produced various documents such as copy of the award dated 25.9.1991 declared by the SLAO(2), Mumbai Suburban District. He has also produced certified copy of the valuation report and certified copy of the letter dated 29.5.1999 addressed by Divisional Collector, M.S.R.T.C. inter alia stating that valuation for surplus vacant land declared under the U.L.C. Act. is Rs. 4,900/- per sq. mt. and Rs. 5,000/- per sq. mt. The said surplus vacant land which was in possession of the governemnt is also forming part of the present acquisition proceedings for the acquiring body. He has also produced copy of the agreement for sale dated 17.2.1990 and the certified copy of the agreement for sale dated 10.6.1998 and the certified copy of the deed of conveyance dated 4.7.1988. These three documents are produced as instances which have been relied upon by him in his valuation report dated 23.8.2004. 10. In so far as the sale instance no. 1 is concerned, it pertains to the sale of a flat by one Mrs. M.K. Developers to Mrs. Vijyalaxmi 11 Ajay Shenvi. The document mentions the date as 17.2.1990 and is registered on 4.1.1991. The rate prescribed therein is in respect of the flat i.e. land along with building. The area of the flat is 381 sq. fit and the price is Rs. 1,75,000/-. The property is situated at S.V. Road, Dahisar in residential area. In so far as sale instance no. 2 is concerned, the same is again in respect of a flat and the vendor is Messrs. Sameer Builders and Mr. Satish Gopal Sawant and the document is executed on 10.6.1992. The same also pertains to the sale of flat of an area admeasuring about 380 sq. ft. and the total price provided for was Rs. 3,06,000/-. The property is once again situated at S.V. Road, Dahisar, (East). In so far as these two sale instances are concerned, both the claimants and the respondents have unanimously agreed that both these instances are required to be discarded outright. It is because the same does not pertain to the sale of the land. What I am required to consider while assessing the enhancement of the compensation in favour of the claimants or otherwise, is to determine the market value of the land which is sought to be acquired. The fact that the aforesaid two instances pertain to the sale of flat, they cannot be a yard-stick for determination of the market value of a plot of land and, therefore, 12 the said sale instances cannot be taken into consideration. On this aspect since there is consensus between both the parties, I discard the same without further discussion in that behalf. 11. Thus, it left only one instance in so far as the claimants are concerned i.e. sale instance no. 3. This sale instance no. 3 pertains to the sale of land. This sale instance no. 3 has been proved before me by the claimants. The claimants have produced the registered deed of conveyance in respect of the said sale instance no. 3. This pertains to a plot of land admeasuring about 2,750 sq. mtrs. It is situated at Dahisar (East). It is at the distance of 4.5 kilo meters from Borivali Railway Station and away from the land under acquisition. The date of conveyance is 4.7.1988. The date of registration of the conveyance is 13.6.1994. The vendor in respect of the said conveyance is one Mrs. Urmilla Vasantlal Parmar and the purchaser of the said land is one M/s. Shraddha Associates. The total consideration prescribed in respect of the said land is sum of Rs. 3 lacs and rate per sq. mtr. works out at Rs. 445.78 per sq. mtr. On the other hand in so far as the sale instances are concerned, the respondent has not produced any sale instance but has relied upon the very same sale instance that the Special 13 Land Acquisition Officer has accepted in the award. However, even the said sale instance has not been proved by the respondents in their examination of the various witnesses as neither the registered deed or even Index II in that respect was produced. Be that as it may, the said instance is now on record as the claimants themselves produced the deed of conveyance and cross-examined the witnesses of the respondent herein one Mr. Rayate. Thus, the said sale instance also forms the part of the record. The said sale instance is referred hereinafter as sale instance no. 6. This sale instance no. 6 pertains to a plot of land just adjacent to the land under acquisition. This instance pertains to a plot of land bearing CTS No. 2351, S. No. 224,Hissa No. 1, area admeasuring 2023.36 sq. mtrs. The rate is of a sum of Rs. 351.43. The said land is touching the land under acquisition and the document is registered in 1987. The vendor of the said land is one Ratilal Gokuldas Thakkar & others and the purchaser is one co-operative society known as Borivali Sai Smriti Co-operative Housing Society. Thus, in effect, I am now required to consider out of the said two sale instances namely, sale instance no. 3 and sale instance no. 6 which has been produced by the claimants through the cross-examination of the respondent’s witness. 14 12. Further analysing the evidence of Mr. Mehta, I find that Mr. Mehta’s evidence is reliable and the same is fairly consistent. In so far as sale instance no. 3 is concerned, in the course of the cross-examination Mr. Mehta has explained in detail why he has preferred the said sale instance. He has been thoroughly grilled in respect of the said sale instance no. 3 particularly in respect of the distance and in respect of the surrounding area of the said property. In the cross-examination said Mr. Mehta has answered each and every question and explained why the said instance no. 3 should be preferred and should be treated as the most comparable land. In so far as the amenities are concerned, he has explained the same in paragraph 21. He has admitted in the said paragraph that the said plot of land is situated near the railway station. However, he has explained that the area of Dahisar where the said land is located is less developed than the area of Borivali where the acquired plot of land is located. In so far as why he chose only the sale instance no. 3 which is the only sale instance of plot of land, he has explained that in paragraph 22 that he could only gather from the Office of the Sub Registrar of Assurances only one example on record in respect of vacant plots 15 of land closer to the relevant date of 3.8.1989 which is the date of publication of notification in the present acquisition. He has deposed that other instances which were recorded in the Office of the Sub Registrar ere of flat and not of the transactions of plot of land. He has also explained in paragraph 23 that the distance between the acquired plot of land and the said sale instance no. 3 is around 2.5 kilometres from the land under acquisition. He has also admitted that the sale instance was of a developed land but clarified that the same did not have building permission at the time of execution of the conveyance. He has also admitted that there is substantial difference in price of non-developed land and developed land as well as he has further deposed that the price difference between the agricultural land and non-agricultural land is very small because normally the permission is granted for non-agricultural use of the land as a matter of routine. In his further cross-examination he has deposed that the land in the instance no. 3 is located half kilo meter from Dahisar Railway Station. However, he denied that merely because the proximity of Dahisar Railway Station the land should be treated as incomparable because the land acquired is situated in undeveloped area. He admitted that the railway station is one of 16 the amenities taken into consideration for comparison of price. However, in his view, the land under acquisition would fetch better market value because it was closer to Borivali Railway Station then located near Dahisar Railway Station. According to him, it is because the Borivali Railway Station is a big junction and much more developed locality and well connected to the railway station than Dahisar railway station. He has however stated that the was not aware as to whether there was a bus terminus near Dahisar Railway Station in 1988. However, he has deposed that there were some shops and establishments near the surrounding area of the sale instance no.3. He has further explained that in respect of certain aspects he has provided certain allowances in his valuation report which he has filed. One of such allowances given is in respect of the development of the surrounding land in question in sale instance no. 3. In the further cross-examination he has deposed that the rise in the land price in Dahisar was much less than the rise in the land price in Borivali. He has further deposed that the said sale instance no. 3 is most comparable instance in respect of the said land and the same should be accepted. 13. As against this, the Acquiring Body has 17 led the evidence of one Mr. Ashok Gopinath Deshmukh, Asst. Traffic Superintendent. He has only deposed to the facts. In the evidence he has deposed that in 1990, the D.P. road which is provided in the development plan on the West of the acquired land was not a motorable road as it was not asphalted and they were required to keep their jeep near Nancy colony and walk upto the acquired plot of land. Save and except the description of the property as on the date of taking possession thereof on 30.6.1990, the said witness has deposed nothing else. He is being examined on the basis that he was one of the signatories to the possession receipt of MSRTC. In cross-examination, he has deposed that he was only assigned the job to take possession of the said land and accordingly he was present and executed the said receipt. In the course of cross-examination, the explanation is given to the terminology of "low lying area" by explaining that there were certain ditches on the land which were not developed and that the land which was not motorable. He has admitted that he has given that description on the basis of his recollection of what he saw in 1990. However, in cross-examination he has deposed that in 1990 he has never travelled on the 18.3 mtr D.P. road from Nancy colony but stop upto the intersection. However, he stated that he is still in a position 18 to describe the said road since he had seen that stretch of the road and he used to travel in the MSRTC vehicles upto the Nancy Colony and thereafter he used to proceed on foot for the purpose of inspecting the acquired land. He has denied the suggestion that the D.P. Road was asphalted as far back as in August 1989 but he admitted that he is not aware of what the condition of the portion of the 18.3 met. D.P. road between the acquired property and the Shiv Vallabh road intersection. 14. Thereafter the evidence has been led by the Acquiring Body of Prashant Vinayakrao Potdar. His evidence also is based on the possession receipt executed by him and he has also deposed about the condition of the land in 1989 while he deposed that the road to the West and South of the acquired land of 18.30 mts. D.P road and 13.40 mtrs. D.P. road respectively was Kachha road. He has also deposed that the D.P. Road on the West of the said plot was not motorable road as it was not asphalted and they were required to park their jeep near Nancy Colony and walk upto the acquired plots. The evidence of this witness is somewhat similar to the evidence of other witness Mr. Deshmukh. In his cross-examination, he has deposed that the estimate given by him pertaining to water stagnation was based on his 19 visual observation and not on the basis of any measurement. He has also deposed that as on 30.6.1990, there was no road in existence between the nancy colony bus stop and the Shiv Vallabh Road intersection shown in the plan Annexure - B to the valuation report, Exhibit C- 6. According to him, this road was not motorable and, therefore, it was difficult to walk to the remaining part of the road near the intersection. 15. Thereafter evidence is led of one Mr. Deepak Sadashiv Dighade. This gentleman has deposed about the work of filling up which was required to be done by MSRTC in January, 1994. He is not aware of any of the fact prior thereto since he joined service of MSRTC in January, 1994. He has deposed that the entire acquired land was low lying except a small portion which was levelled in the year 1993-94. He further deposed that the tenders ere also called for hardening the land for making the same useful for the purpose of bus depot. He has deposed that M/s. Rakesh Enterprises was granted the contract for an amount of Rs.2,62,173.26 ps. for levelling and hardening of the said portion of acquired land. He has further deposed that they had again in 1995-96 invited tenders for levelling an area admeasuring 10409.22 sq. mts. and the work was allotted to one M/s. Gajanan 20 Constructions and the work was completed on 28.2.1997. The cost of levelling and hardening the land has come to around Rs. 9,42,238/-, according to the said witness. He has filed with his evidence the documents pertaining to the work carried out and also the various details pertaining to the details of payments thereof. 16. The said witness was cross-examined by the claimants and in the cross-examination he has deposed about the depth at which the said land was required to be levelled. He has deposed in his evidence that in the plan which is shown as Exhibit R-1 he has given the details of formation level and the ground level. The difference in the formation level is between 30.45 and the existing ground level of 30.540 i.e. around .090. Thus the level was required to be filled in upto .090 mtrs. In the further cross-examination, he has deposed about the description mentioned in the various documents about filling up work required to be carried out by MSRTC for the parking area for S.T. bus depot. However, he has denied the suggestion that the said filling up is not required if the land is required for the construction of a building and not for ST Depot. He has further admitted in his evidence that after the completion of the work by the contractor, the 21 level of the land was higher than the existing road which is shown on the West side of the property in plan Exhibit R-1. According to his admission, the level of the ground of the filing up of the property was 2 to 3 inches higher than the existing road. 17. Thereafter the respondent has examined one Mr. Ramesh Rayate who is an Architect - Valuer. In his examination-in-chief he has stated that he is a practising architect and at the request of the Divisional Controller, MSRTC he has visited the suit land and prepared his valuation report dated 21.10.2004. He has determined the true and correct market value of the land which is the land under acquisition and he filed his valuation report. In so far as his evidence is concerned, I am constrained to make severe adverse observations. His answers to the cross-examinaton have been evasive and not to the point. In my opinion, his evidence has not been able to withstand the test of cross-examination. Some of the instances on the basis of which I am constrained to make this observation are as under :- a) Firstly, whenever he has been questioned about his valuation report, he has merely stated that he has prepared the report on the basis of 22 the information given by the SLAO and the documents furnished to him by the MSRTC. There is no independent valuation of the said plot of land at all. b) Apart therefrom, some of the answers to the questions have been unintelligible. Such as, when he was questioned on what basis he has stated in paragraph 3 in his valuation report that the land incurred heavy expenditure in levelling this plot he has answered that he has given