1 fa85-352 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.85 OF 1998 WITH CIVIL APPLICATION NO.696 of 2011 The State of Maharashtra through Special Land Acquisition Officer ...Appellant vs. Dadaji Jagannath Borse ...Respondent ALONG WITH FIRST APPEAL NO.352 OF 2008 Dadaji Jagannath Borse ...Appellant vs. The State of Maharashtra through Special Land Acquisition Officer ...Respondent Mr.A.R.Patil, A.G.P for the appellant in F.A.NO.85/1998 and for the respondent in F.A.no.352/2008 Mr.P.N.Joshi for the respondent in F.A.no.85/1998 and for the appellant in F.A.no.352/2008 CORAM : A.S.OKA,J. DATE : MARCH 16,2011 ORAL JUDGMENT: 1 These cross appeals can be disposed of by a common Judgment as they arise out of the same Award under section 18 of the Land Acquisition Act,1894 (hereinafter referred to as the said Act). The acquisition relates to the land bearing Gat no.258 situated at village Manur, Taluka Kalwan, District Nashik. The area of the acquired land is 1 Hectare and 73 Ares. The purpose of acquisition of lands is construction of irrigation colony of Punad Project. The notification under section 4(1) of the said Act was issued on 10th January 1985. The Award under section 11 of the said Act was made 25 th March 1988. The market value offered was Rs.10,500/- per Hectare. At the 2 fa85-352 instance of the claimant, a reference was made under section 18 in which a prayer was made for grant of the market value at the rate of Rs.1,50,000/- per Hectare. While passing the impugned Award, the learned trial Judge came to the conclusion that the rate of the market value per sq. meter would be Rs.11/-. He held that considering the fact that half of the area of the acquired land will have to be ignored which will be required for roads and other amenities etc., while computing the market value, the area available will have to be taken as only 5000 sq meters. Therefore, he purported to grant 50% of the market value at the rate of Rs.11/- per sq. meter, in respect of the land which was allegedly available for actual development. 2 First Appeal no.85 of 1998 is preferred by the State of Maharashtra for challenging the impugned Award. First Appeal no.352 of 2008 has been preferred by the original claimant for enhancement. The market value claimed by the claimant in the said appeal is at the rate of Rs. 1,50,000/- per Hectare. 3 The learned A.G.P in support of the appeal preferred by the State of Maharashtra submitted that the acquired land was an agricultural land and both the sale instances on which reliance was placed by the claimant were in respect of developed residential plots of land of a small size. He submitted that the sale instances are not in respect of the comparable lands. He submitted that even if the market value is to be calculated on the basis of the said sale instances, substantial deduction of 75% will have to be made on account of cost of development. 4 The learned counsel for the claimant submitted that the entire approach of the learned trial Judge is 3 fa85-352 erroneous. He submitted that there was no scope to make a deduction while determining the market value. He submitted that the deduction, if any, could have been made only on account of development charges. He submitted that the learned Judge has made first deduction while applying the market value and has made a second deduction by holding that the claimant will not be entitled to market value of a part of the acquired land which will be required for road etc. In support of the application for additional evidence (Civil Application no.696 of 2011), he pointed out that in case of land situated in a close proximity of the acquired land, the Reference Court has granted market value of Rs.295/- per sq meter. He invited the attention of the Court to the various documents annexed to the application for additional evidence. He submitted that the said documents will be the basis for fixing the market value. He pointed out that even in the Award under section 11 of the said Act it is observed that the acquired land had non agricultural potential. 5 I have given careful consideration to the submissions. The claimant has invoked comparison method. He placed reliance on the sale instances at Exh.15 and 16 which are sale deeds. The claimant examined one Shashikant Shamrao Pawar who is the son of the vendor under both the said sale deeds. The first sale deed is of 3 rd May 1980 by which the father of the witness sold the plot no.5 admeasuring 440.70 sq. meters out of Gat no.109 of village Manur. The said sale deed is at Exh.15. The price of the plot sold under the sale deed is Rs. 10,000/-. The second sale deed is dated 26 th July 1985 at Exh.16 under which plot no.3 admeasuring 518 sq. meters was sold by the same vendor at the price of Rs.15,000/-. The said plot no.3 was out of Gat no.105 of village Manur. As far as the acquired land is concerned, in 4 fa85-352 examination-in-chief, the witness stated that he knew the acquired land which was situated at Nashik Kalwan Road. He stated that the residential areas have come up beyond the acquired land. His evidence was recorded in the year 1994. He deposed that about 7 years back, industrial estate has come up in the area. In the cross examination, he admitted that the plots subject matter of the sale deeds were out of agricultural land which was converted into non agricultural land in the year 1980-1981. He stated that the land has been divided into various plots. As far as acquired land is concerned, he stated that it was an agricultural land which was unirrigated. He stated that rates of residential plots are higher by 40% to 50% than those of unirrigated agricultural lands. He stated that the plots subject matter of the sale deeds have been sold for residential use. The claimant stepped into witness box. He stated that he has become landless as a result of the acquisition. He stated that when the land was acquired, he was residing in the said land and the surrounding areas were inhabited. 6 The claimant has filed Civil Application no.696 of 2011 seeking permission to lead additional evidence. In the application, he stated that the land bearing Survey no.261/1 belonging to one Vithoba Shankar Patil is just adjoining acquired land. It is stated that the said land was acquired on 7 th October 1989. Reliance is placed on various documents obtained under the Right to Information Act. Perusal of the said documents show that the possession of the said land was taken over in the year 1981 under a private agreement and rent was paid to the owner. Reliance is placed on Award under section 18 made by the District court in respect of the said land. Award under section 18 of the said Act discloses that 5 fa85-352 notification under sub section 1 of section 4 of the said Act was issued much later i.e on 8th March 2001. The market value determined by the District Court in the reference under section 18 is as on 8th March 2001. Therefore, the said Judgment is of no assistance in as much as in the present case, the relevant date is 10th January 1985. 7 The evidence of the witness Shashikant Pawar shows that both the sale deeds at Exh.15 and 16 are in respect of the land which is situated in close proximity of the acquired land. As sale deed dated 26th July 1985 at Exh. 16 is available, the sale deed at Exh.15 which is dated 3 rd May 1980 will have to kept out of consideration as the relevant date in the present case is 10 th January 1985. The acquired land is admittedly an agricultural land which was having comparatively large area of 1 Hectare and 73 Ares. Even in the award under section 11 of the said Act, the Special Land Acquisition Officer observed that the acquired land had potential for non agricultural use. Though award under section 11 is in the nature of an offer, what is stated in the Award can be always taken as an admission by the State Government. Therefore, it must be held that on the relevant date, the acquired land had potential for non agricultural use. It is true that the sale instance of 26 th July 1985 is of a small developed plot which was already converted into non agricultural use. Since the acquired land had non agricultural potential and since the land subject matter of the sale deed at Exh.16 is in close proximity of the acquired land, the market value of the acquired land can be determined on the basis of the said sale deed. However, considering the large area of the acquired land and considering the fact that the sale instance is of a small developed plot, substantial deduction will have to 6 fa85-352 be made on account of cost of development. The Apex Court has held that such deduction varies from 25% to 75% depending upon the facts of the case. In the present case, the deduction will have to be made on higher side as the market value of a large agricultural land is to be determined on the basis of the market value of a small developed plot. Considering the facts of the case, deduction of 60% will have to be made from the market value reflected from sale deed at Exh.16. The said sale deed reflects the market value of Rs.25.86 sq. meters. A sum of Rs.15.51 will have to be deducted on account of cost of development at rate of 60%. Hence, the market value comes to Rs.10.35 per sq. meter. 8 At this stage, it will be necessary to make a reference to the finding recorded by the learned Judge in paragraph 8 of the impugned Judgment which reads thus: 8...Such cannot be a case in a distant hamlet near Kalwan, considering this a discount of50% on account of development expenses and the waiting period would be appropriate. Taking the sale price at lower and at Rs.22/- per sq. meter quoted by witness Advocate Pawar and discounting it thus, the rate per sq. meter would come to Rs.11/-. Further as already observed, half of the area will have to be ignored as it will not be sold having been used in roads and other amenities. Thus, while computing price per hectare, area available will have to be taken to be only 5000 sq. meters, bring the rate to Rs.55,000/- per hectare. Therefore, the claimant in this case would have been entitled to Rs.95,150/- plus statutory additives, in place of Rs.28,447/- 7 fa85-352 awarded. Issue no.1 therefore answered in affirmative. 9 As stated earlier, the market value of large undeveloped plot can be determined on the basis of a smaller developed plot provided appropriate deduction is made on account of development charges. After making a deduction on account of development charges, the market value is to be computed of the entire acquired land. In the present case, market value at the rate of Rs.10.35 per sq. meter will have to be fixed in respect of the entire acquired land admeasuring 1 Hectare and 73 Ares. To that extent, a modification will have to be made in the impugned Award. There is no dispute regarding the grant of statutory benefits. 10 Thus, the appeal preferred by the State Government will have to be allowed in part and the market value will have to be brought down to Rs.10.35 per sq. meter. The appeal preferred by the claimant will have to be also partly allowed. The claimant will be entitled to market value at the aforesaid rate in respect of the entire area of the acquired land. 11 Hence, I pass the following order : i) First Appeal nos.85 of 1998 and 352 of 2008 are partly allowed. ii)Impugned Judgment and Award is modified by holding that the market value of the acquired land shall be calculated at the rate of Rs.10.35 per sq. meter. The said market value shall be payable in respect of the entire area of 1 Hectare and 73 Ares of the acquired land which is set out in the Award under section 11 of the said Act. 8 fa85-352 iii)In addition, the claimant will be entitled to statutory benefits under section 23(1-A), 23(2) and 28 of the Land Acquisition Act,1894. iv)There will be no order as to costs in both the appeals. However, the claimant will be entitled to proportionate costs of the reference from the State Government. v) Compensation payable in terms of the modified award shall be determined by the Reference Court within a period of three months from the date on which writ of this Judgment is received by the said Court. Within a period of three months from the date of determination of the said amount, additional amount, if any, shall be deposited by the State Government with the Reference Court. vi)Civil application no.696 of 2011 does not survive and the same is disposed of. JUDGE