1 FA.420.02 n 421.01 w xobj-Chendhre ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 420 OF 2002 WITH CROSS-OBJECTION (stamp) NO. 17568 OF 2007 The State of Maharashtra. ... Appellant Versus Anant Gajanan Warde. ... Respondent ALONGWITH FIRST APPEAL NO. 421 OF 2002 WITH CROSS-OBJECTION (stamp) NO. 17560 OF 2007 The State of Maharashtra. ... Appellant Versus Uday Gajanan Warde. ... Respondent ----- Mr. A.R.Patil, AGP for the Appellant - State. Mr. Rajiv Patil a/w Mr.Onkar Warange for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 22 nd June, 2011. ORAL JUDGMENT: 1 These appeals arise out of a common judgment delivered in two references under Section 18 of the Land Acquisition Act, 1894 2 FA.420.02 n 421.01 w xobj-Chendhre (hereinafter referred to as “the said Act”). With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to make a brief reference to the facts of the case. 2 First Appeal No.420 of 2002 arises out of a judgment and award passed by the Reference Court in Land Acquisition Reference No. 13 of 1995. The acquisition relates to land bearing Survey No.118-A/1, admeasuring 4190 square meters situated at village Chendhre within the limits of the Alibag Municipal Council, District Raigad. The notification under Section 6 of the said Act read with Section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 was issued on 29 th October, 1992. The award was made by the Special Land Acquisition Officer on 29 th October, 1994. The market value offered under the award under Section 11 of the said Act was not accepted by the Respondent and therefore, at the instance of the Respondent, a reference under Section 18 of the said Act was made. In the reference, the claim made by the Respondent for the market value was at the rate of Rs.750/- per square meter. The market value offered by the award under Section 11 of 3 FA.420.02 n 421.01 w xobj-Chendhre the said Act was Rs.75/- per square meter. By the impugned judgment and award, the Reference Court came to the conclusion that the market value of the acquired lands on the relevant date was Rs.537/- per square meter. In this appeal, there is a cross objection filed by the Respondent claiming market value at the rate of Rs.750/- per square meter. 3 First Appeal No.421 of 2002 arises out of a judgment and award passed by the Reference Court in Land Acquisition Reference No. 14 of 1995. The land subject matter of the said reference is Survey No. 118-A/1, admeasuring 2550 square meters situated at Chendhre within the limits of Alibag Municipal Council. The date of the notification and the date of award is the same as in the earlier case. The amount offered under Section 11 of the said Act and the amount granted by the impugned judgment and award is the same. Even in this appeal, there is a cross objection in which prayer is made for grant of market value at the rate of Rs.750/- per square meter. 4 The learned AGP appearing for the Appellant has taken the 4 FA.420.02 n 421.01 w xobj-Chendhre Court through the impugned judgment, notes of evidence and documents on record. He invited attention of the Court to the fact that the Reference Court has relied upon only the sale instance at Exhibit-14 of the sale- deed dated 21 st January, 1992. He pointed out that the said sale-deed was in respect of the area of only 511.47 square meters. He submitted that apart from the fact that the sale-deed plot was more advantageously located, the acquired lands were landlocked and the sale-deed land had the benefit of access to a major road. He submitted that the sale instance of sale-deed at Exhibit-14 cannot be said to be a comparable sale instance. He submitted that evidence is brought on record to show that in the development plan, a regular road was shown for approaching the acquired lands and by modification of the development plan, the said road has been cancelled. He submitted that there was no case made out for granting enhancement in the References under Section 18 of the said Act. 5 The learned counsel appearing for the Respondent in the appeals submitted that the evidence on record shows that the acquired 5 FA.420.02 n 421.01 w xobj-Chendhre lands in both the appeals are contiguous lands and they are situated at a close distance of the sale-deed land subject matter at Exhibit-14 and that both the lands are situated in the same locality. He submitted that the evidence on record shows that there was a regular road available for approaching the acquired lands and the acquired lands were not at all landlocked. He submitted that the market value reflected from the sale- deed at Exhibit-14 is the market value as of 21 st January, 1992 and considering the fact that the acquired lands are situated in the prominent locality of the city of Alibag, there will be substantial escalation till the relevant date i.e. 29 th October, 1992. He submitted that the rate reflected from the said sale-deed is Rs.763.38 per square meter. In the circumstances, he submitted that the cross-objections deserve to be allowed. The learned AGP submitted that in both the cases references were barred by limitation and therefore, only on that ground, the appeals deserve to be allowed. 6 I have given careful consideration to the submissions. It is not in dispute that lands subject matter of two appeals are contiguous 6 FA.420.02 n 421.01 w xobj-Chendhre lands and they virtually form part of the same compact piece of land, though the survey numbers are different. The claimant examined one Mr.Suhas Gajanan Warde as a witness. He stated that the acquired lands are situated in the heart of the city of Alibag. He stated that the District Court, the office of the District Collector, the residence of the District Collector and the residence of the Chief Executive Officer of the Zilla Parishad are situated within a distance of 200 meters from the acquired lands. He stated that a school, a senior college, police quarters, revenue cottage, observatory as well as the residence of the District Judge are very close to the acquired lands. He stated that the sea beach of the Alibag is at a distance of 300 meters on the western side of the acquired lands. In the examination-in-chief, he stated that the acquired lands were reserved for police quarters from 1971. In the year 1978, an application was made for grant of permission for non-agricultural use. However, considering the reservation, no objection certificate was not granted. In the cross-examination, he stated that in the revised development plan of the city of Alibag of the year 1984, a proposed 40 feet wide road was shown near the acquired lands. He denied the 7 FA.420.02 n 421.01 w xobj-Chendhre correctness of the suggestion that such road was never in existence. He admitted that the acquired lands were used for taking paddy crop. He denied the correctness of the suggestion that the acquired lands are at a low level, which require filling up. A suggestion was given by the Government Pleader to the said witness that the land of Mr.Damle (land subject matter at Exhibit-14) was at a distance of 200 to 250 meters from the acquired lands. The correctness of the said suggestion was denied by the said witness. 7 The claimant also examined Mr.Ramchandra Nilkanth Damle. He proved in evidence the sale-deed at Exhibit-14. He stated that by the sale-deed at Exhibit-14, he sold the land bearing Survey No.85, admeasuring 785.97 square meters for the price of Rs.6,00,000/-. He stated that there was an old house on the said property and the house was in existence from 60 to 70 years. He stated that the price of the house and the price of the land have been separately shown in the sale- deed. In the cross-examination, he admitted that on one side of his property, there was main road running from Collector's Office to Varsoli. 8 FA.420.02 n 421.01 w xobj-Chendhre He stated that for the purposes of stamp duty, the value of the property was Rs.4,94,000/-. In the cross-examination, he stated that there is a road in between the acquired lands and his property. He stated that the acquired lands are not adjacent to any main road, but there was a Kachha road adjacent to the acquired lands. 8 The claimant also examined Mr.Pralhad Narhar Padlikar, a Civil Engineer and valuer to prove the valuation report. In the cross- examination, he admitted that he visited the acquired lands for the first time in the year 2000. In the cross-examination, he admitted that the proposed road in the development plan has been deleted and existence of the proposed road has been considered by him while making valuation of the acquired lands. In the cross-examination, he admitted that the sale-deed land subject matter at Exhibit-14 was very small as compared to the acquired lands. He admitted that as per the 7/12 extract, the acquired lands were shown as paddy lands. He also admitted that on adjacent land, there was a veterinary clinic. 9 FA.420.02 n 421.01 w xobj-Chendhre 9 The Appellant examined Mr.Narayan Virupaksh Kulkarni, who was the Deputy Director of the Town Planning. He stated that the acquired lands were two feet below the road level. He was cross- examined by the learned counsel appearing for the claimant. There is hardly any material in the cross-examination except certain questions put to him as regards the existence of the road. He admitted that there is a road leading to Police Kalyan Bhavan from Varsoli Ramnath Road upto Police ground which is on the northern side of the acquired lands. He identified the said road shown in the map at Exhibit-31. He admitted that the lands in the vicinity of the acquired lands have been converted into non-agricultural use. He also admitted that in case of reserved lands, development permission is not granted. He admitted that at the time of acquisition, basic amenities such as electricity, water supply were available to the adjoining lands. 10 The first question to be considered is whether the land subject matter of sale-deed at Exhibit-14 can be said to be a comparable land. As pointed out earlier, in the cross-examination of the claimant 10 FA.420.02 n 421.01 w xobj-Chendhre Mr.Suhas Warde, a suggestion was given that the acquired lands were at a distance of 200 meters from the sale-deed land at Exhibit-14. The vendor Mr.Damle under the sale-deed at Exhibit-14 was examined as a witness. He stated that there was a road in between the acquired lands and his land. From the evidence of the aforesaid witnesses discussed above, it appears that the acquired lands as well as the sale-deed land are situated in prominent area where important offices like collector's office and District Court are situated. In the area, there are residential quarters of the District Judge, District Collector and Chief Executive Officer of the Zilla Parishad. There is a school, a senior college etc. around the said lands. As stated by Mr.Damle, there is a road in between the acquired lands and the land subject matter of the sale-deed. This aspect has been brought on record in the cross-examination of Mr.Damle. Mr.Narayan Kulkarni examined by the Appellant, admitted that there existed a road leading from main road (Varsoli - Ramnath road) which goes upto Police Kalyan Bhavan which is at a distance of 50 meters from the acquired lands. The said road also goes to the Police Parade ground which is on north of the acquired lands. Therefore, the contention of the 11 FA.420.02 n 421.01 w xobj-Chendhre Appellant that the acquired lands were landlocked cannot be accepted. Therefore, the acquired lands can be compared with the sale-deed land. However, there is a negative factor as far as the acquired lands are concerned, in the sense that in the development plan, there was reservation shown for 40 feet wide road near the acquired lands and the said reservation has been cancelled. 11 It is true that the acquired lands were agricultural lands. However, Mr.Kulkarni admitted in the cross-examination that all the lands around the acquired lands were converted into non-agricultural use. Moreover, Mr.Suhas Warde stated that the claimants had applied for conversion, but the permission could not be obtained as the acquired lands were under the reservation for police quarters. The fact that the acquired lands are surrounded by the lands already converted for non- agricultural use is more than sufficient to establish non-agricultural potential of the acquired lands on the date of notification. The acquired lands could not be converted into non-agricultural use as the same were shown in reservation in development plan. It is true that the area of the 12 FA.420.02 n 421.01 w xobj-Chendhre sale-deed is land 785.97 square meters and on the other hand, the area of first acquired land is 4190 square meters and the second one is 2550 square meters. However, the market value of the larger area can be always determined on the basis of comparable sale instance of smaller lands by making suitable deduction on account of largeness of the area of the acquired lands. 12 It must be noted here that the Reference Court also accepted sale instance at Exhibit-14 as sale instance of a comparable land. The Reference Court, however, relied upon admission of Mr.Damle that for the purposes of stamp duty, the property subject matter of Exhibit-14 was valued at Rs.4,94,000/-. The Reference Court, thereafter, referred to the sale-deed at Exhibit-17 and found that a sum of Rs.92,800/- was payable out of the price as cost of the structure. After deducting the said amount, the Reference Court fixed the market value of the sale-deed land at the rate of Rs.4,02,000/-. However, the said sale-deed reflects that the total price paid was Rs.6,00,000/-. Though, Mr.Damle deposed that the total price paid was Rs.6,00,000/-, in the cross-examination of Mr.Damle, there 13 FA.420.02 n 421.01 w xobj-Chendhre is no suggestion given that the price of Rs.6,00,000/- was in excess of the prevailing market value. Therefore, the price of the property subject matter at Exhibit-14 will have to be taken as Rs.6,00,000/-. As the said price includes the price of the structure which was constructed about 60 to 70 years prior to the sale-deed, while arriving at the market value of the acquired lands, certain deductions will have to be made. 13 There is a difference of about nine months between the date of the sale-deed at Exhibit-14 and the relevant date, which is 29 th October, 1992. Considering the location of the acquired lands and the sale-deed land, escalation of 5% has been taken by the Reference Court. Since, the acquired lands are situated in the urban area, an escalation of about 7.5% to 10% ought to have been considered for every year. Therefore, the escalation taken as 5% for a period of nine months is correct. The market value reflected from the sale-deed at Exhibit-14 is Rs.763.38 per square meter. By granting escalation of 5%, the market value comes to Rs.801.54 per square meter. 14 FA.420.02 n 421.01 w xobj-Chendhre 14 As stated earlier, the area of the acquired lands is much bigger than the sale-deed land. Therefore, some deduction will have to be made on account of largeness of the area. The non-agricultural potential of the acquired lands is already established. Therefore, in the facts of the case, deduction can be about 10% to 15%. Further deduction will have to be made as the value reflected from the sale-deed shows that the same was inclusive of the price of the house, which was 60 to 70 years old. Thus, this is a fit case where deduction of about 25% will have to be made on account of all the negative factors. It must be noted that the evidence of Mr.Damle shows that the sale-deed property was taken over by a builder for development and there is evidence on record to show that the property was developed. Therefore, so far as purchaser is concerned, cost of the house was hardly material. 15 Thus, making deduction of 25% from Rs.801.54/- per square meter, the market value will have to be fixed at the rate of Rs.600/- per square meter and to that extent, the cross objections will have to be allowed. 15 FA.420.02 n 421.01 w xobj-Chendhre 16 Lastly, it is necessary to deal with the objection raised by the learned AGP regarding limitation. Though the objection was raised in the pleadings, there is no evidence adduced in support of the said objection. In both the reference applications, it is stated that the notice under Section 12(2) of the award dated 29 th October, 1994 was served on 2 nd May, 1995. The reference applications have been filed on 16 th May, 1995. In the written statements, it is admitted that the notice under Section 12(2) was served on 2 nd May, 1995. However, it is contended that the reference applications were filed after expiry period of six months from the date of the award and therefore, the same are barred by limitation. In this behalf, it will be necessary to make a reference to the decision of the Apex Court in the case of Bhagwan Das and others Vs. State of UP and others [(2010) 3 SCC 545]. The Apex Court held that period of six months from the date of the award will have to be computed from the date of the actual or constructive knowledge of essential contents of the award. It is not the case of the Appellant that the claimants had actual or constructive knowledge of the award anytime prior to 2 nd May, 1995. Hence, the 16 FA.420.02 n 421.01 w xobj-Chendhre objection regarding bar of limitation cannot be sustained. 17 Hence, I pass the following order: i. First Appeal No.420 of 2002 and First Appeal No.421 of 2002 are dismissed with no order as to costs ; ii. Cross-objection (stamp) No.17568 of 2007 and Cross-objection (stamp) No.17560 of 2007 are partly allowed. The total market value of the acquired lands shall Rs.600/- per square meter ; iii. In addition to the market value, the claimants shall be entitled to statutory benefits under Section 23(1-A), Section 23(2) and Section 28 of the Land Acquisition Act, 1894. The claimants shall be entitled to proportionate the costs of references as well as the cross objections ; and iv. In the aforesaid cases where cross objections have been allowed, the Reference Court shall complete the exercise of determining the compensation payable in accordance with the modified award within a 17 FA.420.02 n 421.01 w xobj-Chendhre period of three months from the date on which writ of this judgment is received by the said Court. The excess compensation shall be deposited by the State Government within a period of three months from the date on which determination of the amount is made by the said Court. [ A.S.OKA, J ]