1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 814 OF 2006 1. The State of Maharashtra (At the instance of the Land Acquisition Officer, Metro Centre No.1, Thane). 2. The Collector of Thane. ... Appellants (Orig.Opponents) Versus Shri Chunilal Mangilal Rajput, Age about 45 years, Occupation: Business, residig at Chunilal Provisional Stores, Talavali Naka, Post Ghansoli, Thane-Belapur Road, Thane. ... Respondent (Orig.Claimant) Ms. S.P.Manchekar, AGP, for the Appellants. Shri Rajesh S. Datar, Advocate, for the Respondent. CORAM: J.H.BHATIA,J. DATE : 29th September, 2009. JUDGMENT. 1. This appeal is filed by the State challenging the compensation awarded to the respondent by the Joint District Judge, Thane, in Land Reference No.22 of 1986. 2 2. To state in brief, land survey No.96 was previously owned by one Sitaram Nagu Mhatre and in 1965, it was purchased by one Digambar Vishnu Acharya. Before Digambar Acharya purchased the land, several persons had raised structures on the said land as lessees of the owner Sitaram Mhatre. According to the respondent, he was in possession of a structure admeasuring about 2200 sq. feet. He had purchased that structure from one Multanmal Jain under an unregistered sale deed dated 21.6.1976 for consideration of Rs.55,000/-. It included the amount of Rs.10,000/- being the price of Kirana goods in the shop. Thus, according to him, the structure was purchased by him for an amount of Rs.45,000/-. The Notification under Section 4 was issued on 27.12.1966 and the Notification under Section 6 was issued on 13.1.1969 for acquisition of the land. The respondent and several other persons who were in possession of different structures were also given notices. After enquiry, the Land Acquisition Officer granted compensation about the land to Digambar Acharya, but no compensation was given to the respondent towards the value of the structure which was required to be demolished on acquisition of the land. Therefore, he made a Reference Application under Section 18 claiming compensation of Rs. 4,80,000/-. The reference was submitted to the Joint District judge, Thane as Reference Court. 3 3. On behalf of the State, the claim of the respondent was denied and it was contended that even if he was owner of the structure, the claim was highly exhorbitant and excessive. 4. The claimant-respondent examined himself and produced the alleged sale deed Ex.37 under which he had purchased the structure from his earlier owner and also he produced a valuation report of the property. After hearing the parties, the learned Joint District Judge, Thane, awarded total compensation of Rs.1 lakh, inclusive of Rs.60,000/- being the cost of the structure and Rs.40,000/- in respect of loss of business and goodwill. The compensation amount was to carry additional component at the rate of 12% per annum as well as solatium at the rate of 30% on the said compensation along with future interest. 5. Heard the learned Counsel for the parties. Perused the record and proceedings of the Reference Court. 6. Following points arise for my determination and I record my findings against them for the reasons given below :- 4 POINT FINDING Whether the claimant/respondent was entitled to compensation for acquisition of his structure on the said land. If yes, how much compensation ? Yes. Amount of Rs.28,463/- R E A S O N S 7. On perusal of the record, it appears that the respondent Chunilal Mangilal Rajput was issued a notice by the Special Land Acquisition Officer along with other persons who were in occupation of different structures as well as Digambar Acharya the owner of the land. In the award, name of the father of the claimant was shown as “Navaji”. It may be noted that no clarification has come on record as to how his father’s name was shown as Navaji at one place and Mangilal in the notice. However, it is an admitted fact that the respondent was one of the persons who was in occupation of a structure on the said land. In the Award, the Land Acquisition Officer had noted that the claim made by him was highly exhorbitant. However, without giving any reason, he rejected the claim and granted no compensation to him. 5 8. The respondent examined himself before the Reference Court and deposed that the said structure was previously owned by Multanmal Jain from whom he had purchased it under a document Ex.37 dated 21.6.1976 for consideration of Rs.55,000/-. It included Rs.45,000/- being price of the structure and Rs.10,000/- being the price of the goods lying in the business premises. He was carrying on Kirana business in the said premises even on 20.8.1996 when his evidence was recorded. It appears that he did not examine either his vendor Multanmal Jain or the attesting witness of that document. Thus, strictly speaking, he did not lead any evidence to prove that document and the fact that he had purchased the said structure from Muntanmal Jain in 1976 for Rs.45,000/- Therefore, much importance cannot be attached to the said document. He produced several documents to show that his predecessor was carrying on business in the said premises and after him, he himself was carrying on business in the same premises. He had paid sales tax. The Sales Tax notices and orders revealed the address of the said premises as a place of business of the respondent. These document go to show that he was in possession of the structure. This claim also finds support from the notices issued by the Land Acquisition Officer to him. The notices were issued to the owner of the land as well as the persons who were occupying portions of that land as lessees for carrying on their 6 business. The respondent produced the valuation report dated 21.11.1985 issued by one Ashok G. Nimak, Architect and Surveyor. It may be noted that the said architect was not examined as a witness. However, the report was considered by the Reference Court. The earned AGP appearing for the State also does not seriously challenge that report. The report reveals that in 1962, a kerosene license was issued in the name of M/s. Parekh Stores run at the same place. In 1966, MultanmalJain had obtained permission from the Gram Panchayat for repairs. It indicated that structure was in existence in 1962 and was repaired from time to time. He noted that the plinth of the structure was 1355 sq. ft. and height was 11 feet. Thus, the total structure was 14905 cubic feet As the Notification under Sec. 6 was issued in 1969, he proceeded to fix the value of the structure in the year 1969. The report reveals that according to him, in 1962, when the construction was made, cost of construction was Rs.2/- per cubic ft. and some depreciation was to be given for every year. However, in the later part, he assessed the value of the structure at Rs.44,715/- treating cost of construction at Rs.3/- per cubic ft. and then made deductin towards depreciation at the rate of 4.49% from the same. Thus, according to him, the depreciated cost of the structure would be Rs.42,700/-. In fact, this was not correct. In the earlier part of the report, cost of construction was shown at Rs.2/- per cubic ft. If it is so, the cost of construction would be Rs.29,810/- and depreciation of 4.49% would be 7 Rs.1347/-. After this deduction, the net value of the structure would be Rs. 28,463/-. 9. However, the surprising fact is that after having noticed that the valuer had certified the value of the structure at Rs.42,700/-, without giving any reasons, the Reference court fixed the compensation towards the value of the structure at Rs.60,000/- and he further added amount of Rs.40,000/- in respect of loss of business and goodwill for which again no reason was given. 10. The learned Counsel for the claimant contended that the respondent was entitled to get some compensation on account of loss of business and goodwill and for this he relied upon Indrayanibai and another vs. Collector of Nagpur and another 1973 Mh.L.J.645. In that case, the house of the claimant was acquired without giving any compensation on account of loss of business. It was found that the claimant was carrying on a small shop from which he was earning Rs.100/- per month. The shop was in a busy locality. It would be difficult for him to find alternate place for carrying on same type of business and, therefore, the High Court fixed the compensation on account of loss of business at Rs.500/- taking into consideration clause 5 of Section 23(1). The said clause provides that in determining the amount of compensation, the Court has to take 8 into consideration any consequences of acquisition of land by the Collector and if the person interested is compelled to change his residence or place of business, the reasonable expenses incidental to such change may be considered. In the present case, the notification under Section 4 was issued in 1966 and the notification under Section 6 was issued in 1969. The respondent purchased the structure in 1976 with full knowledge that the land was going to be acquired by the Government. He carried on the business of Kirana in the premises not only upto the date of award, but according to his oral evidence recorded in 1996, he was still carrying no business there. Thus, he was not disturbed even after the land was acquired. As the award was passed in 1985, he will be entitled to additional component a the rate of 12% per annum and solatium at 30%. In fact, the total amount which he was getting would be in multiples of the price for which he had purchased it in 1976. This is also because he had sufficient time to relocate himself after the award was passed in 1985 and it is not that his business was disturbed immediately and he was without any business for some time. The additional component which was to be paid to him without actual loss of possession, would more than cmpensate him for the loss of business, if any. Therefore, I find that the Reference Court was not justified in granting any compensation on account of loss of business or goodwill. 9 11. In view of he facts noted above, the Appeal is allowed. The impugned award hereby stands modified as follows :- The Special Land Acquisition Officer shall pay amount of Rs. 28,463/- as compensation towards the value of the structure of the respondent/claimant. The amount shall carry additional component at the rate of 12% per annum. He would also be entitled to solatium at the rate of 30% on the total amount of compensation as well as interest at the rate of 9% per annum for one year from the date of taking possession. In case the compensation is not paid within one year from the date of taking possession, it shall further carry interest at the rate of 15% per annum till the amount is actually paid. No order as to costs. 12. As the Appeal itself is disposed of, C.A.No. 2031/2006 and C.A. 1272 of 2009 do not survive and stand disposed of accordingly. (J.H.BHATIA,J.)