1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO.1118 OF 2005 FIRST APPEAL NO.1118 OF 2005 FIRST APPEAL NO.1118 OF 2005 1. Smt.Sabhia Mohammed Yusuf ] Abdul Hamid Mulla. ] ] 2. Shri Hasib Mohammed Yusuf ] Abdul Hamid Mulla ] ] 3. Shri Matin Mohammed Yusuf ] Abdul Hamid Mulla. ] ] 4. Smt. Minaj Navid Diwan, ] Appellants. ] (Original 5. Shri Mohammad Saeed ] Claimant Abdul Hamid Mulla. ] Nos.1 to 4, ] 9, 11 & 12) 6. Shri Abdul Majid ] Abdul Hamid Mulla ] ] 7. Shri Sagir Mohammed ] Abdul Hamid Mulla ] ] All Residing at Patel Mohalla, ] Panvel, Tal. Panvel, ] Dist. Raigad. Versus 1. The Special Land Acquisition ] Officer, Metro Centre No.1, ] Panvel, Dist : Raigad ] ] 2. Smt.Bilkis Abdul Wahab Dawnak] ] 3. Smt.Akhtar Abdul Wahab ] Respondents Tungekar. ] (No.1 Original ] Opponent and 4. Shri Mohammed Noor Abdul ] Nos. 2 to 6 - Hamid Mulla. ] Claimant Nos. ] 5 to 8 & 10) 5. Smt.Mohsina Abdul Samad ] Khatib ] ] 6. Smt.Nadira Mohammed Arif ] Thakur ] 2 2 2 All Nos. 2 to 6 Residing at ] Patel Mohalla, Panvel, ] Taluka Panvel, Dist. Raigad ] Mr.A.Y.Sakhare, Sr.Counsel with F.A.Mulla for the appellant. Mr.K.K.Tated, AGP, for the State/Respondent. ALONG WITH ALONG WITH ALONG WITH FIRST APPEAL NO.410 OF 2005 FIRST APPEAL NO.410 OF 2005 FIRST APPEAL NO.410 OF 2005 WITH WITH WITH CIVIL APPLICATION NO.5506 OF 2005 CIVIL APPLICATION NO.5506 OF 2005 CIVIL APPLICATION NO.5506 OF 2005 The State of Maharashtra ] Through The Special Land ] Appellant Acquisition Officer Metro ] (Original Centre No.1, Panvel Dist.Raigad] Opponent) versus 1. Smt.Sabhia Mohammed Yusuf ] Abdul Hamid Mulla. ] (Since deceased through the ] (L.Rs. i.e. R.No.2 to 4) ] ] 2. Shri Hasib Mohammed Yusuf ] Abdul Hamid Mulla ] ] 3. Shri Matin Mohammed Yusuf ] Abdul Hamid Mulla. ] ] 4. Smt. Minaj Navid Diwan, ] ] ] 5. Smt.Bilkis Abdul Wahab Dawnak] ] 6. Smt.Akhtar Abdul Wahab ] Respondents Tungekar. ] (Original ] Claimants) 7. Shri Mohammed Noor Abdul ] Hamid Mulla. ] ] 3 3 3 8. Smt.Mohsina Abdul Samad ] Khatib ] ] 9. Shri Mohammad Saeed ] Abdul Hamid Mulla. ] ] 10. Smt.Nadira Mohammed ] Arif Thakur ] ] 11. Shri Abdul Majid ] Abdul Hamid Mulla ] ] 12. Shri Sagir Mohammed ] Abdul Hamid Mulla ] ] All Residing at Patel Mohalla, ] Panvel, Tal. Panvel, ] Dist. Raigad. Mr.K.K.Tated, AGP, for the State/Appellant. Shri A.Y.Sakhare, Sr.Counsel with Mr.S.M.Kamble for the respondents/claimants. CORAM : D.G.DESHPANDE CORAM : D.G.DESHPANDE CORAM : D.G.DESHPANDE SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. DATED : December 21, 2006. DATED : December 21, 2006. DATED : December 21, 2006. JUDGMENT : [PER D.G.DESHPANDE,J.] JUDGMENT : [PER D.G.DESHPANDE,J.] JUDGMENT : [PER D.G.DESHPANDE,J.] 1. Heard the learned counsel for the original claimants and learned AGP for the State. 2. First Appeal No.1118 of 2005 is filed by the appellants/claimants for enhancement of 4 4 4 compensation granted to them in respect of acquisition of their lands situated at village Roadpali (Kolhekar), Tal. Panvel, Dist. Raigad by the Civil Judge Sr.Division, Alibag by his judgment dated 15/01/2005 in L.A.R.No.130 of 2003. First Appeal No.410 of 2006 is filed by the State for challenging the same Judgment and Award dated 15/01/2003 in L.A.R.No.130/2003 passed by the Civil Judge, Sr.Division Alibag awarding compensation to the claimants at Rs.25/- per sq.metre. As both these appeals are arising out of the said judgment and award, We are disposing off them by this common judgment. 3. Appellants and Respondent Nos.2 to 6, in First Appeal No.1118 of 2005, are the original claimants. The counsel for the appellants/claimants gave us a table or chart in which Survey Nos. of the acquired lands have been given. They are as Survey Nos. 459, 481, 449, 450, 455, 452, 486, 490, 492, 476, 472, 441, 442, 444, 461, 467, 491, 39. He has also given, in the said Chart, the distance of these survey Nos. from Mumbai Pune Highway (Old) and the distance from Sion Pune Highway (New). We are reproducing the same as under :- 5 5 5 ______________________________________________ Survey Nos. Distance from Distance from Mumbai Pune Sion - Pune Highway(Old) Highway (New) ______________________________________________ 459 1600 400 481 1200 700 449 1100 400 450 1200 400 455 1300 400 452 1000 800 486 1400 800 490 1100 1000 492 100 100 476 1600 300 472 1300 500 441 800 1200 442 800 1200 444 900 1200 461 1700 200 467 1900 100 6 6 6 491 1000 1200 39 200 1600 ________________________________________________ 4. The rate awarded to all those lands by the Special Land Acquisition Officer is between Rs.1.70 ps to Rs.2.00 per sq.mtr. and, the Reference Court has, in respect of those lands, awarded Rs.25/- per sq.mtr. According to the learned AGP, compensation at the rate of Rs.25/- per sq.mtr. was wrong, Whereas according to the learned counsel for the appellants/claimants, firstly the compensation was not adequate. That was the ground raised in these appeals. 5. However, during the course of arguments, the counsel for the appellants/claimants conceded that as per the earlier judgment of this Court in respect of acquisition of lands for the purpose of New Bombay Project, the criteria fixed by the earlier Division Bench was the distance of the acquired lands from the Bombay Pune Highway. He, therefore, conceded that the appellants/claimants will be entitled for the compensation at the rate fixed by the earlier Division Bench on the basis 7 7 7 of this criteria and, therefore, since for the lands acquired from the said village in earlier proceedings Rs.25/- per sq.mtr. was granted, the State appeal challenging the grant of Rs.25/- per sq.mtr. was required to be dismissed. 6. However, the learned AGP contended that even though the earlier Bench has fixed criteria of awarding compensation in such cases in respect of lands acquired for New Bombay Project to be the distance of acquired lands from Bombay Pune Highway, granting compensation by the Reference Court at flat rate of Rs.25/- per sq.mtr. was not proper and, if the judgment of the earlier Division Bench has to be followed, then different rates were granted to the different lands depending upon the distance and hence same principle will have to be taken into consideration. 7. The learned AGP also contended that whatever be a compensation awarded to the claimants, the State will be entitled to claim development charges. He relied upon the judgment of the Supreme Court in this regard where the Supreme Court has, in respect of development 8 8 8 charges, laid down that generally development charges should be 1/3rd of the compensation, but in any case it should not be less than 20%. 8. On the other hand, the learned counsel for the appellants/claimants in this regard submitted that their lands had N.A. potentiality and, therefore, there was no question of deducting development charges and at any rate, according to him, development charges should not exceed 10% to 15% of the amount of compensation. 9. The judgment of the Division Bench upon which reliance was placed is the judgment delivered by Justice S.W.Puranik and Justice D.J.Moharir dated 25th and 26th February 1993 in Group of Appeals i.e. First Appeal No.754 of 1986 and others. The parties of the First Appeal No.754 of 1986 being Nama Padu Hudar v/s. The State of Maharashtra. In para 17, the Division Bench has made following observations :- "On a total compass it would be seen that the factual aspects of these lands being situate at a short distance from the highway and industrial estate and that it 9 9 9 is a fast growing industrial zone are not disputed by way of cross examination. It is in this light that we will have to consider the rest of the evidence tendered by the witnesses." The Division Bench has, in para 26, made the following observations :- "Assuming that some of the sites are near railway station and some are not, we fell that in the magnitude of the growth of industrial development and the surrounding areas the disadvantage merely on the ground of distance disappears particularly when there are access roads of Zilla Parishad and State highway available to each of these lands. This being the position, nearness or a little distance away from the highway will be of little significance albeit it may make a difference of a rupee or two in the total evaluation. For this purpose with the assistance of learned counsel of both the parties we had prepared a table showing four groups, the first one showing the 10 10 10 lands abutting the Bombay Pune Highway. The survey numbers concern with First Appeals Nos.754 of 1986 and 763 of 1986. The second group refers to lands within a distance of 800 metres from the highway but not exactly abutting the highway. These lands are covered by First Appeal No.751 of 1986 (part) and First Appeal No.756 of 1986. The third group is of lands abutting Kamothe Zilla Parishad but within 1200 metres from the Bombay Pune Highway. These lands are covered by First Appeals Nos.753 of 1986, 751 of 1986 (part) and 752 of 1986. The next group is IV-A covered by First Appeal No.755 of 1986 and the lands in this group are within a distance of 800 to 2200 metres from Bombay Pune Highway, while the last group is Group IV-B of lands covered by First Appeal No.743 of 1986, situate within a distance of 200 to 640 metres from Zilla Parishad Road and Gaothan. The lands covered by the decision at Exhibit ’A’ to the Civil Application No.1596 of 1989 are admittedly at a distance of approximately 11 11 11 one kilometre from the national highway as deposed by Shri Wagle and the said valuation arrived at is in respect of the notification issued in 1964." The Division Bench in the said para has further observed as :- "The location clearly shows that the lands covered by Exhibit ‘A’ are at a distance of approximately one kilometre from the national highway, while Exhibit ‘B’ lands are somewhat closer to the national highway, but both these lands are in respect of the older notifications. In so far as lands covered by Exhibits ‘C’ and ‘D’ are concerned, they are almost at a distance of 1 kilometre from the national highway and are the lands covered by the present notification of 1970 for purpose of new township. The valuation arrived at is Rs.25 per sq.metre for lands at Exhibits ‘C’ and ‘D’. In so far as the present suit lands are concerned, they are identical, similar and comparable to the 12 12 12 lands covered by the judgments at Exhibits ‘A’ to ‘D’ as well as to the two lands of Jenson & Nicolson and Esso Petro Pump." At the end of the para No.26 the Division Bench has observed thus :- "Lands in Group I covered by First Appeals Nos.754 of 1986 and 763 of 1986 at the rate of Rs.25 per sq.metre, those in Group II covered by First Appeals Nos.751 of 1986 (part) and 756 of 1986 at the rate of Rs.23 per sq.metre, those covered by First Appeals Nos.753 of 1986, 751 of 1986 (part) and 752 of 1986 in Group III at the rate of Rs.22 per sq.metre, those covered by First Appeal No.755 of 1986 in Group IV-A at the rate of Rs.20 per sq.metre as also those covered by First Appeal No.743 of 1986 lying in Group IV-B at the rate of Rs.20/- per sq.metre. The chart in respect of these groups is annexed to the judgments and forms part of this judgment." 13 13 13 10. In scores of other matters, relating to the acquisition proceedings, decided by this Court or other Benches, distance of the acquired lands from the Bombay-Pune Highway or National Highway has been considered to be the basic criteria and, there is no dispute about that. However, whether awarding compensation at Rs.25 per sq.mtr at flat rate in respect of the lands involved in this appeal is proper, is the question arising in this matter. 11. From the table reproduced by us, it will be clear that out of the 18 lands acquired 11 lands are more than 1000 metres away from Bombay Pune Highway; two lands are 1000 meters away; two lands are 800 meters away, one land is 900 meters, one piece of land is 100 meters and other is 200 meters away from the Bombay Pune Highway. 12. While deciding the L.A.R. matters, the Division Bench, [Justice A.P.Shah and Justice J.A.Patil] in its judgment, applied the same standard or criteria i.e. the proximity of the acquired lands from the National Highway. 14 14 14 . In a Group of Appeals, being First Appeal No.695 of 1992 and others, delivered by me (D.G.Deshpande, J), following the same standard or criteria i.e. proximity of acquired lands from National Highway, awarded compensation from Rs.13/- per sq.mtr. to Rs.25/- per sq.mtr. While deciding those appeals, the following distances of the acquired lands from the National Highway in those matter were taken into consideration. L.A.R. Nos. Distance from Highway 18/87 1320 mtrs. 397/86 320 mtrs. 17/87 1280 mtrs. 405/86 1120 mtrs. In the aforesaid matters, when the distance was 320 sq.mtrs from the Highway, Rs.25/- per. sq.mtr was awarded. 15 15 15 13. Therefore, applying the same criteria or standard and looking to the distances of the lands in this case, Rs.25/- per sq.m. would be proper in respect of Survey Nos.492 and 39 because these lands are situated at 100 mtrs and 200 mtrs respectively away from the Highway. So far as Survey Nos.441, 442, 444 are concerned, Rs.20/- per sq.mtr would be proper because these lands are 800 mtrs, 800 mtr., and 900 mtrs. respectively away from the Highway. So far as Survey Nos.452 and 491 are concerned, Rs.18/- per sq.mtr. would be proper because these lands are situated 1000 mtrs. away from the Highway and other lands are concerned, Rs.13/- per sq.mtr. would be proper because, they are situated 1100 mtrs to 1900 mtrs away from the Highway. 14. The learned AGP also urged that the development charges to the extent of 1/3rd should be deducted from the compensation. He relied upon the judgment of the Supreme Court reported in AIR 2004 SC. 2006 (Kiran Tandon v/s. AIR 2004 SC. 2006 (Kiran Tandon v/s. AIR 2004 SC. 2006 (Kiran Tandon v/s. Allahabad Development Authority & Anr.) Allahabad Development Authority & Anr.) Allahabad Development Authority & Anr.) where the Supreme Court deducted 20% towards development charges. The learned advocate for the claimants 16 16 16 however contended that looking to other aspects of the matter, i.e. the lands have been acquired for New Bombay Project, and all these lands are having N.A. potentiality, the development charges should not be more than 10%. 15. In a Group of Appeals, being First Appeal No.695/92 and ors. decided by me (D.G.Deshpande,J) on 20th January 2005, it is noted in para 9 that the Division Bench (comprising of Justice A.P.Shah and Justice J.A.Patil) in the group of appeals has granted 10% development charges. 16. Following my earlier judgment in group of appeals being First Appeal No.695/92 and looking to the distances of the lands in the present case from the Highway, deduction of 15% development charges would be proper. Hence we pass the following order :- :ORDER: :ORDER: :ORDER: Appeal filed by the claimants - 17 17 17 appellants being First Appeal No.1118 of 2005 for enhancement of compensation from Rs.25/- onwards is dismissed. Appeal filed by the State being First Appeal No.410 of 2005 for reduction of compensation is partly allowed. The State to award compensation to the claimants in respect of their respective survey Nos. mentioned below at the following rates along with all the ancillary benefits permitted by law. Survey Nos. Rate per sq.mtr. ______________________________________________ 459 Rs.13/- per sq.mtr. 481 Rs.13/- per sq.mtr. 449 Rs.13/- per sq.mtr. 450 Rs.13/- per sq.mtr. 455 Rs.13/- per sq.mtr. 452 Rs.18/- per sq.mtr. 18 18 18 486 Rs.13/- per sq.mtr. 490 Rs.13/- per sq.mtr. 492 Rs.25/- per sq.mtr. 476 Rs.13/- per sq.mtr. 472 Rs.13/- per sq.mtr. 441 Rs.20/- per sq.mtr. 442 Rs.20/- per sq.mtr. 444 Rs.20/- per sq.mtr. 461 Rs.13/- per sq.mtr. 467 Rs.13/- per sq.mtr. 491 Rs.18/- per sq.mtr. 39 Rs.25/- per sq.mtr. ________________________________________________ The State will be entitled to deduct development charges at 15% from the amount of compensation. Civil Application No.5506 of 2005 does not survive. It is disposed off. There will be no order as to costs either in the appeal of the claimants or of the State. [D.G.DESHPANDE,J] [D.G.DESHPANDE,J] [D.G.DESHPANDE,J] 19 19 19 [SMT.R.S.DALVI, J] [SMT.R.S.DALVI, J] [SMT.R.S.DALVI, J]