1 FH fa.978.00 anr.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 978 OF 2000 WITH CROSS OBJECTIONS (stamp) NO. 24495 OF 2001 The State of Maharashtra. ... Appellant Versus Jagmohan Vilasrao Rungtha. ... Respondent ----- Mr. A.R.Patil, AGP for the Appellant – State. Mr. Rajiv Patil for the Respondent. ----- CORAM: A.S.OKA, J. DATE : 01 st February, 2011. ORAL JUDGMENT: 1 By this appeal, the Appellant – State Government has taken an exception to the judgment and award dated 1 st April, 1999 passed by the Civil Judge, Senior Division at Panvel in a reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”). 2 FH fa.978.00 anr.doc 2 Notification under Section 4(1) of the said Act dated 30 th March, 1992 was published on 2 nd April, 1992. The notification relates to a land at village Nadhal, Taluka Khalapur, District Raigad. The acquired land bears Survey No. 22, Hissa No.2 admeasuring 1 Hectare and 30.2 Ares. By award dated 24 th August, 1994 under Section 11 of the said Act, market value at the rate of Rs.97, 000/- per Hectare was offered to the Respondent – Claimant. The Respondent-claimant did not accept the award. At his instance, the reference under Section 18 of the said Act was made. The claim for market value was made in the reference at the rate of Rs.8, 00,000/- per Hectare. By the impugned judgment and award, the learned trial Judge has fixed the market value at the rate of Rs.4,92,000/- per Hectare and granted statutory benefits under Section 23 (1-A), Section 23(2) and Section 28 of the said Act. 3 There is a cross objection filed by the Respondent by which claim is made for market value at the rate of Rs.8, 00,000/- per Hectare. 4 The learned AGP has taken the Court through the notes of 3 FH fa.978.00 anr.doc the evidence and other documents on record. The learned AGP pointed out that enhancement has been granted only on the basis of the agreement for sale dated 8 th January, 1991 (Exhibit – 22), which reflects market value of Rs.3, 000/- per guntha. He submitted that without there being any evidence, the learned trial Judge accepted the case made out by the Respondent that the market value reflected in the agreement was only 40% of the agreed market value and 60% of the amount was paid in cash. He submitted that evidence of Mr.Barikrao Mahadu Khairnar, the Purchaser under the said agreement cannot be believed. He submitted that in any case, there was no evidence of comparability of the land subject matter of the said agreement with the acquired land. He submitted that a copy of the sale-deed is also not placed on record. He, therefore, submitted that there was no basis for fixing the market value at the rate of Rs.6,000/- per Guntha. The learned counsel appearing for the Respondent submitted that there is no cross examination made of the witness Mr.Barikrao Mahadu Khairnar on his statement that the market value of the land purchased by him was Rs.6, 000/- per guntha and therefore, the trial Judge was justifying in accepting the said evidence. 4 FH fa.978.00 anr.doc He pointed out that apart from the evidence of the said agreement dated 8 th January 1991, the Respondent examined Mr.Manohar Gopal Vaidya, as an expert witness. He pointed out that the Appellant has also placed on record a certified copy of the judgment dated 30 th April, 1998 in Land Acquisition Reference Nos.115 of 1993 and 109 of 1993 relating to the land at village Hatnoli, Taluka Khalapur, District Raigad. He submitted that evidence of the expert examined by the Respondent shows that the lands subject matter of the said judgment and award were comparable to the acquired land in all respects. He submitted that the market value could have been fixed even on the basis of the said judgment, which is at Exhibit – 17. He pointed out the evidence of the expert and in particular, the evidence adduced regarding the location of the acquired land and the nature of the acquired land. He pointed out that the acquired land was very close to Bombay – Pune national highway. He pointed out that there were three or four Industrial Estates already setup in the vicinity of the acquired land. He pointed out that there was direct access from the said land to the road and in fact, the land was suitable for both residential and industrial use. Relying upon the observations made by the Division 5 FH fa.978.00 anr.doc Bench of this Court in the judgment dated 21 st June, 2007 in First Appeal No. 646 of 1995 and other connected first appeals, he submitted that the aforesaid positive factors brought on record are sufficient to justify the claim made by the Respondent in the cross objection. 5 The learned AGP appearing for the Appellant pointed out that there was no evidence of comparability of the lands subject matter of the judgment at Exhibit – 17. He submitted that in any case, the said lands were situated far away from the acquired land. 6 I have given careful consideration to the submissions. The relevant date in the present case for determination of market value is 2 nd April, 1990. Apart from the Respondent himself, two other witnesses have been examined. The Respondent stated that he had applied for conversion of the acquired land for non-agricultural use for the purposes of setting up a holiday resort. He stated that apart from constructing a farmhouse, he started making plantations on the acquired land. He stated that he wanted to make the acquired land suitable for the purposes 6 FH fa.978.00 anr.doc of shooting of films. He stated that the acquired land was at a distance of 200 meters from the Bombay – Pune national highway. He stated that Reliance Township was at a distance of 500 meters. He referred to the judgment of the Reference Court at Exhibit – 17 relating to land at village Hatnoli and stated that the village Hatnoli was towards Karjat side at a distance of 3 kilometers from the national highway. He relied upon two sale-deeds without stating anything about the nature of the lands subject matter of the sale deeds. In the cross-examination, he admitted that he has not made any development in the acquired land. He admitted that he did not produce any documentary evidence to show that he had applied for conversion of land for non-agricultural use. He admitted that the Reliance Township opened in the year 1997, but construction was in progress 4-5 years prior to 1997. 7 The Respondent examined Mr.Manohar Gopal Vaidya, an Architect and valuer. He stated that the acquired land is adjoining a petrol pump and it was at a distance of 275 meters from the national highway. He stated that Patalganga Industrial Estate was at a distance of 7 FH fa.978.00 anr.doc 6000 meters and Vithoba Industrial Estate was at a distance of 2200 meters from the acquired land. He stated that Reliance Township was at a distance of 1400 meters. He stated that even the State Transport Bus Stand in the village was at a distance of 1200 meters. He stated that water and electricity supply was available in the village. He stated that he has relied upon two judgments of the lands situated at village Roadpali and Hatnoli, which were at a distance of 1.5 kilometers from the national highway. In the cross-examination, he stated that he had compared the acquired land with lands subject matter of awards in Reference No.68 of 1989 and Reference No.138 of 1990. He stated that the land subject matter of the said references was at a distance of 1.5 kilometers from the highway. 8 Last witness examined by the Respondent is Mr.Barikrao Mahadu Khairnar. The material part of his deposition reads thus: “..... I have purchased land from Sushila More bearing S. No. 160/3 of village Nadhal by agreement dtd.8.1.91. When I purchased the land, that time Govt. valuation of market price was Rs.3000/- to Rs.4000/- per guntha. I have purchased this land for Rs.78, 000/- admeasuring 25 guntha. But in fact I have paid consideration of Rs.1, 60000/- to seller. Actually I have purchased the same for Rs.6, 000/- per guntha. Accordingly, 8 FH fa.978.00 anr.doc transaction of land taken place showing the consideration 40% in actual sale deed and 60% paid in case.” In the cross-examination, he is stated that the sale-deed was executed in the year 1997. It is stated that the acquired land was at a distance of 300 meters from his land. 9 The trial Court has placed reliance only on the agreement for sale dated 8 th January, 1991, which is at Exhibit – 22. The agreement is duly registered. It is brought on record in the cross-examination of the 3 rd witness (Mr.Khairnar) examined by the Respondent that a sale-deed was executed on the basis of the said agreement in the year 1997. Thus, the agreement at Exhibit – 22 can be relied upon as a piece of evidence provided the land subject matter of the agreement is proved to be comparable. The witness stated that the market value, which is reflected from the agreement for sale was Rs.3,000/- to Rs.4,000/- per guntha and he had purchased the land at the price of Rs.78,000/- admeasuring 25 guntha. The witness wanted the Court to believe that consideration of Rs.78,000/- reflected in the agreement was only 40% of the actual 9 FH fa.978.00 anr.doc consideration and 60% was paid in cash. There was no evidence adduced to show that anything more than what is reflected in the agreement was paid under the said transaction. In fact, the case made out by the witness in short is that certain unaccounted cash amount was paid by him in addition to the consideration reflected in the agreement for sale. Though, there may not be a specific challenge to the said statement in the cross-examination, but a suggestion was given that the witness was deposing falsely in the Court. The version of the witness that 60% of the consideration, which is not reflected in the agreement was paid in cash was accepted by the trial Court. The learned trial Judge found that the agreement for sale shows that the market value of the transaction was Rs.3,000/- per guntha, but the learned trial Judge accepted the price to be Rs.6,000/- per guntha, which is Rs.2,40,000/- per acre and Rs. 6,00,000/- per Hectare. The learned trial Judge found that the land subject matter of the sale instance was closer to Bombay – Pune national highway than the acquired land and therefore, he came to the conclusion that the market value should be Rs.4,92,000/- per Hectare. The learned trial Judge could have not accepted that part of the evidence 10 FH fa.978.00 anr.doc of the 3 rd witness examined by the Respondent in which he stated that certain unaccounted cash was paid at the time of execution of agreement for sale which is not reflected in the Agreement. 10 It must be stated here that the Respondent – claimant in his deposition did not depose about the nature of the land subject matter of the said agreement. The valuer has not deposed as regards the comparability of the land subject matter of the said agreement. The 3 rd witness examined by the Respondent to prove the agreement stated that there were two lands in between the land subject matter of the agreement and the acquired land. He stated that the acquired land was at a distance of 300 meters from the land purchased by him under the agreement at Exhibit – 22. 11 Perusal of the agreement at Exhibit – 22 shows that the land subject matter of the agreement was an agricultural land and in fact, there is a recital that the land was purchased by the vendor under Section 32 (G) of the Bombay Tenancy and Agricultural Lands Act, 1948 11 FH fa.978.00 anr.doc and there was a sale permission granted to sell the said land. As stated earlier, the date of the agreement is 8 th January, 1991 and the relevant date is 2 nd April, 1992. Considering the location of the land subject matter of the agreement and considering the fact that both the acquired land and the land subject matter of the agreements were agricultural lands, the market value reflected from the said agreement can certainly a basis for determination of the market value of the acquired land. Both the lands are situated in the same village. Before fixing the market value, the other evidence will have to be dealt with. 12 Reliance is placed by the Respondent on a certified copy of the judgment dated 30 th April, 1998 at Exhibit – 17. Firstly, the land subject matter of the said decision is situated at another village Hatnoli and the date of notification under Section 4(1) is 22 nd December, 1989, which is much prior to the relevant date in the present case. The Respondent – claimant has relied upon the sale instance of a land located in the same village in which the acquired land is situated. Therefore, the judgment at Exhibit – 17 will have to be kept out of 12 FH fa.978.00 anr.doc consideration. It is pertinent to note that the expert valuer examined by the Respondent has not deposed about the location of the land subject matter of the said judgments at Exhibit – 17. He has relied upon the judgment in Reference No.68 of 1989 and Reference No.138 of 1990. He candidly admitted that the distance between the land subject matter of the said references and acquired land was 32 kilometers. Therefore, the said judgment will have to be kept out of consideration. 13 As far as other part of the evidence of Mr.Vaidya is concerned, he has deposed that Vithoba Industrial Estate is at a distance of 2200 meters and Patalganga Industrial Estate is at a distance of 6000 meters from the acquired land. Reliance Township is at a distance of 1400 meters. The Respondent – claimant stated in the cross- examination that the Reliance Township came up in the year 1997 and construction was started 4-5 years prior to 1997. Thus, on the relevant date, the Reliance Township was not developed apart from the fact that it is at a distance of 1400 meters. The Railway station of major town Karjat was at a distance of 11 kilometers as disclosed by Mr.Vaidya. He stated 13 FH fa.978.00 anr.doc that the village Hatnoli was at a distance of 1.5 kilometers from the highway. He has not disclosed the distance between the acquired land and village Hatnoli. Therefore, taking the evidence of Mr.Vaidya as it is, it is not at all helpful to the Respondent-claimant in arriving at higher market value than what was offered by the Special Land Acquisition Officer. 14 The market value reflected from the agreement at Exhibit – 22 is approximately Rs.3, 000/- per guntha, which will be Rs.3, 00, 000/- per Hectare. The learned AGP has relied upon various decisions of the Apex Court for contending that substantial deduction will have to be made as the land subject matter of the agreement at Exhibit – 22 was only 25 Ares and the acquired land is 130 Ares. 15 It is well settled that determination of the market value of the acquired land can be made on the basis of the comparable land which may be smaller in area. While assessing the market value on the basis of the non-agricultural potential of land, it is obvious that larger area requires larger expenses for development work. For determination of the 14 FH fa.978.00 anr.doc market value of a plot having a larger area on the basis of a plot having a smaller area, some deduction will have to be made. There are various decisions holding that the deduction should be from 20% to 75%. In the present case, we are dealing with the agricultural land admeasuring about 130 Ares. The area of the agreement land is 25 Ares. Therefore, appropriate deduction in the present case will be 25%. Thus, market value at the rate of Rs.3, 00,000/- per Hectare will have to be brought down to Rs.2, 25,000/- per Hectare. To that extent, appeal must succeed and the cross objection must fail. 16 Hence I pass the following order: i. First Appeal No. 978 of 2000 is partly allowed. The market value fixed under the impugned judgment and award is reduced to Rs.2, 25,000/- per Hectare. Rest of the impugned award is not disturbed; ii. There is no order as to costs; iii. Cross Objection stamp No. 24495 of 2001 is dismissed with no order as to costs. [ A.S.OKA, J ]