-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.872 OF 1991 APPEAL NO.872 OF 1991 APPEAL NO.872 OF 1991 The Special Land Acquisition Officer Kolhapur ...Appellant vs. 1. Parasharam Ganpat Jadhav 2. Prakash Ganpat Jadhav ...Respondents Mr.S.N.Gawade,A.G.P. for State Mr.V.B.Rajure for Respondent Nos.1 and 2. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 11, 2008. : FEBRUARY 11, 2008. : FEBRUARY 11, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard learned A.G.P. for the Appellant and Shri Rajure for the Respondents. 2. The Appelalnt-State of Maharashtra has taken an exception to the Judgment and Award dated 12th October 1988 passed by the II Additional District Judge,Kolhapur in a reference under section 18 of the Land Acquisition Act,1894 (hereinafter referred to as the said Act). The acquisition relates to the land bearing City Survey No.261 and 261/2 situated at ‘D’ Ward within the limits of the Municipal Corporation of the city of Kolhapaur. The land was notified for acquisition by a notification dated 21st January 1977 under section 6 of the said Act read with section 126 of the Maharashtra Regional Town Planning Act,1966. An Award was made on 26th May 1981 under section 11 of the said Act. As the Respondentss-claimants did not accept the Award, they applied -2- for a reference under section 18 of the said Act and accordingly a reference was made. By the impugned Judgment and Award, the market value of the acquired land together with building was fixed at Rs.39,192/-. Taking into account the value of the staircase, the total market value has been fixed by the trial court at Rs.41,817/-. The learned Judge has granted statutory benefits under section 23(2) and 28 of the said Act. 3. The submission of the learned A.G.P. for the Appellant is that the Respondents did not discharge the burden on them to prove that the market value awarded by the reference court was inadequate. He submitted that both the sale instances relied upon by the Respondents have has been discarded and the enhancement has been granted only on the basis of the report and opinion of the witness No.3 Shri Sharad Jagdale examined by the Respondents. He submitted that an expert has visited the property long after the acquisition and the valuation made by him of the structure may not be relevant as he had not taken the data as on the date on which the building was constructed and he had not taken into account the appropriate life of the building. He submitted that the evidence of the said witness Sharad Jagdale ought to have been rejected by the Reference Court. The learned counsel for the Respondents supported the impugned Judgment and Award by pointing out the evidence on record. -3- 4. I have given careful consideration to the submissions. In paragraph 6 of the Judgment, the learned Judge has observed that the facts relating to the situation of the acquired property and other material things were admitted. Paragraph 6 of the Judgment reads thus : "6. Issue Nos.1 to 3 - Most of the facts relating to the situation of the acquired property and other material things are admitted. The building is situated on the road namely, Jirage Tickati-Gangaves road at Kolhapur. It may not be out of place, to mention at this juncture that the house property came to be acquired for purpose of winding the above said road itself. The building in question is just near the Gangaves chowk which is business locality having all sort of shops, hospitals, banks, S.T.Bus stand, KMT bus stand etc. The educational institutions like school, colleges are very close to the house of the Applicants. On these facts, I can definitely say that the Applicants house is situated in the heart of the city having all the facilities being situated just near the market complex and other amenities." 5. It will be necessary to refer to the evidence of the witnesses examined by the Respondents. The first witness is Baburao Kurane who had taken out photographs of existing -4- building before the acquisition. The photographs have been exhibited in his evidence. The first Respondents has stepped into witness box. He has given description of the building in existence before the acquisition. Paragraph 2 of his deposition reads thus : "2. The building consists of three stories. 270 square-feet area of ground floor was acquired. The Government has awarded the compensation to this structure at the rate of Rs.180/- per square meter. I do not agree this valuation. The value of the structure on the ground floor is claimed by me at the rate of Rs.45/- per square foot. The construction of the ground floor was made in R.C.C. After the acquisition when the part of the structure on the ground floor was demolished, the remaining construction was also damaged. That structure is not useful for habitation. The value of the structure which has become unuseful is claimed at the rate of Rs.45/- per square-feet. The ground floor was in occupation of the tenants. The remaining portion of the ground floor is in possession of the tenants. If the part of the building has not been demolished,k it would have lasted during the next 50 years. There was R.C.C. staircase leading to the first floor and second floor from the acquired structure. The value of the staircase is not paid. There were 15 steps in the stair case. The value of the stair case is claimed at Rs.100/- per step." -5- 6. In paragraphs 3 and 4 he has given description of the structure. Paragraphs 3 and 4 reads thus : "3. The structure admeasuring about 270 square feet of the first floor was acquired. There was gallery on the first floor facing to the road. It was hanging gallery. Gallery was admeasuring 4 square meters. I have claimed the price of the structure of the first floor at the rate of Rs.35/- per square foot. The first floor was built with slab. The remaining portion of the structure of first floor was also damaged due to acquisition. Therefore, the value of the entire structure of the first floor is claimed at the rate of Rs.35/- per square foot. When the property was acquired the construction of the first floor was sturdy. 4. The structure admeasuring 291 square feet of the second floor was acquired by the Government. There was staircase of wood leading to the second floor and facing road side. The stair-case material was not returned to me at the time of acquisition. That material was taken by the Corporation. The value of the structure of the second floor is claimed at the rate of Rs.30/- per square foot. The amount of Rs.1125/- has been claimed by me as the value of the stair-case." -6- 7. In his deposition, he further stated that when the property was acquired, the building was sturdy and the same would have lasted for 50 to 60 years. In the cross examination, he stated that the construction of the building was started in the 1948 and completed in the year 1949. He stated that the walls of the ground floor were constructed with stones and mud. Interestingly, a suggestion was given to the said witness that the future life of the building was not more than 20 to 25 years. He denied the correctness of the said suggestion as his case was that the building would have lasted for 50 to 60 years. Therefore, what is material to note is that as even the Government Pleader has gave a suggestion to the first Respondent that the building would have lasted for 20 to 25 years. 8. It will be also necessary to refer to the evidence of the third witness Shri Shard Jagdale. He has proved in his evidence the report submitted by him at Exh.41. He has described the location of the acquired land and he has stated that he inspected the acquired land in October 1982. In the cross examination he denied the suggestion that he inspected the acquired property in the month of October 1983. Reliance has been placed by the learned A.G.P. on the following two statements in the cross examination : -7- . "...I did not obtain data as regards the fact when the building was constructed. I did not get the material of the building tested from the laboratory so as to ascertain the life of the building..." 9. Perusal of the report at Exh.41 shows that the said witness has considered the situation of the acquired property and the nature of the structure. He has valued the affected structure admeasuring 270 sq.ft. on ground floor, at Rs.12,150/-. He has valued the affected structure of the first floor admeasuring 330 sq.ft. at Rs.13,200/- and the affected structure of the second floor admeasuring 178 sq. ft. has been valued at Rs.5340/-. He has taken the rates of the ground floor, first floor and the second floor at Rs.45/-, Rs.40/- and Rs. 30/- per sq. ft. and he has valued the land at the rate of Rs.70/- per sq.ft.. He has added a sum of Rs.10,000/- on account of loss of business. So far as the loss of business is concerned, there is hardly any cross examination of the said witness made by the Government Pleader. 10. It will be necessary to refer to the paragraph 15 of the impugned Judgment. Considering the fact that the valuation made by the expert is of the year 1982-1983, the learned Judge deducted 20% of the said amount for arriving at market value -8- in the year 1977. In addition to that, he has taken the market value of one stair case at Rs.1125/- and considering the fact that the there were two staircases,even as reflected in the Award under section 11 of the said Act, the total market value has been fixed at Rs.41,817/-. 11. The relevant date in this case is 21st January 1977. In paragraphs 6 of his Judgment, the learned Judge has considered the location of the acquired land. 12. As held by the Apex Court in the case of Krishna Yachendra Bahadurvaru Vs. City Improvement Trust Board, Banglore (A.I.R. 1979 SC 869), while determining the market value of the acquired land under the said Act, there is always an element of guess work. The learned trial Judge has accepted the evidence of the expert who has made valuation of the property in the year 1982-83 and after making a deduction of 20%, he has arrived at the market value of the relevant date. There is no reason to interfere with the reasonable view taken by the trial court. Considering the fact that the Award under section 11 of the said Act was made prior to 30th April 1982, the learned Judge has not granted statutory benefit under section 23 (1-A). In view of the settled position of law, considering the fact that the reference was pending when the 1984 Amendment Act to the said Act came into force, the learned Judge has rightly granted benefits under -9- section 23(2) and section 28 of the said Act. 13. The compensation awarded is reasonable. No case is made out for interference. First Appeal is accordingly dismissed. The Appellant will pay costs of the Appeal to the Respondents. JUDGE JUDGE JUDGE