1 fa392-05 common. j. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO. 392 OF 1995 ALONGWITH FIRST APPEAL NO.582 OF 1993 ALONGWITH FIRST APPEAL NO. 593 OF 1995 1. Hemant Krishna Thakur ] 2. Deepak Krishna Thakur ] Both Adult, Agricultrist, ] Residing at Bldg. No.14/214, ] Sardar Nagar No.4, Koliwada ] .. Appellants Railway Station (E), Ravli Camp, ](Original Claimants) Bombay 400 037. ] V/s. State of Maharashtra (The Special ] Land Acquisition Officer, Metro Centre ] .. Respondents No.1, Uran) Taluka Uran, ](Original Opponents) District -Raigad. ] ALONGWITH FIRST APPEAL NO. 580 OF 1993 Krishna Ramchandra Thakur ] .. Appellant V/s. The State of Maharashtra ] .. Respondent ALONGWITH FIRST APPEAL NO. 581 OF 1993 ALONGWITH FIRST APPEAL NO. 579 OF 1993 ALONGWITH FIRST APPEAL NO. 600 OF 1995 2 fa392-05 common. j. Deepak Krishna Thakur ] .. Appellant V/s. The State of Maharashtra ] .. Respondent ALONGWITH FIRST APPEAL NO. 584 OF 1993 Krishna Ramchandra Thakur ] .. Appellant V/s. The State of Maharashtra ] .. Respondent ALONGWITH FIRST APPEAL NO. 621 OF 1993 The State of Maharashtra ] (Through the Special Land ] .. Appellant Acquisition Officer) ] (Original Opponent) V/s. Hemant Krishna Thakur ] .. Respondent ] (Original Claimant) ALONGWITH FIRST APPEAL NO. 575 OF 1993 ALONGWITH FIRST APPEAL NO. 576 OF 1993 ALONGWITH FIRST APPEAL NO. 577 OF 1993 ALONGWITH FIRST APPEAL NO. 578 OF 1993 Hemant Krishna Thakur & Anr. ] .. Appellants V/s. The State of Maharashtra ] .. Respondent ALONGWITH FIRST APPEAL NO. 611 OF 1993 ALONGWITH FIRST APPEAL NO. 615 OF 1993 ALONGWITH FIRST APPEAL NO. 613 OF 1993 3 fa392-05 common. j. ALONGWITH FIRST APPEAL NO. 612 OF 1993 The State of Maharashtra ] (Through the Special Land ] .. Appellant Acquisition Officer) ] (Original Opponent) V/s. Hemant Krishna Thakur ] .. Respondent ] (Original Claimant) ALONGWITH FIRST APPEAL NO. 614 OF 1993 The State of Maharashtra ] .. Appellant V/s. Krishna Ramchandra Thakur ] .. Respondent ALONGWITH FIRST APPEAL NO. 616 OF 1993 ALONGWITH FIRST APPEAL NO. 617 OF 1993 The State of Maharashtra ] (Through the Special Land ] .. Appellant Acquisition Officer) ] (Original Opponent) V/s. Deepak Krishna Thakur ] .. Respondent ] (Original Claimant) ALONGWITH FIRST APPEAL NO. 618 OF 1993 The State of Maharashtra ] (Through the Special Land ] .. Appellant Acquisition Officer) ] (Original Opponent) V/s. Hemant Krishna Thakur ] .. Respondent ] (Original Claimant) ALONGWITH FIRST APPEAL NO. 619 OF 1993 4 fa392-05 common. j. The State of Maharashtra ] (Through the Special Land ] .. Appellant Acquisition Officer) ] (Original Opponent) V/s. Deepak Krishna Thakur ] .. Respondent ] (Original Claimant) ALONGWITH FIRST APPEAL NO. 620 OF 1993 ALONGWITH FIRST APPEAL NO. 622 OF 1993 The State of Maharashtra ] (Through the Special Land ] .. Appellant Acquisition Officer) ] (Original Opponent) V/s. Hemant Krishna Thakur ] .. Respondent ] (Original Claimant) .... Mr. T. K. Patil for appellants and Mr. A. R. Patil, AGP for respondent- State in FA.392/95, 575/93, 582/93, 593/95, CAF 2558/09 in F.A. 580/93, F.A. 578/93, FA 581/93, F.A. 576/93, 579/93, 600/95, FA. 577/93, CAF 2559/09 in F.A. 584/93. Mr. T. K. Patil for the appellant/petitioner and Mr. A. R. Patil, AGP for respondent-State in F.A. 621/93, 611/93,CA 6325/93 in F.A. 611/93, F.A. 612/93, 613/93, 614/93, CAF 2552/99 in F.A.614/93, 615/93, 616/93, 617/93, 618/93, 619/93, 620/93 and F.A. 622/93. .... CORAM : A. S. OKA, J. DATE : FEBRUARY 15, 2011. ORAL JUDGMENT :- Group of these First Appeal can be disposed of by a common 5 fa392-05 common. j. Judgment and order. The challenge in these Appeals is to the Awards made under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the “said Act”). 2. The lands subject matter of acquisition in these Appeals are situated at Village Chanje, Taluka Uran, District Raigad. A notification under Section 4(1) of the said Act were issued on 3rd February, 1970 by which the lands were notified for acquisition for public purpose of the planned development and utilization of the said lands in Trans Harbour Panvel and Trans Thana Creek areas for Industrial, Commercial and Residential purposes. The acquisition was thus for setting up a satellite city of New Bombay. Awards under Section 11 of the said Act were made in the year 1986. It appears that the Land Acquisition Officer offered market value at the rate of Rs.7200/- per Acre. The offer was not accepted by the claimants and at their instance, References were made under Section 18 of the said Act. The claimants claimed market value at the rate of Rs. 20/- per square meter. By the impugned Award, Reference Court fixed the market value at the rate of Rs. 6/- per square meter. Apart from the market value, statutory benefits under Section 23(1-A), 23(2) and 28 of the said 6 fa392-05 common. j. Act have been granted. In case of the lands which were allegedly in possession of the agricultural tenants, only 25% of the compensation amount was made payable to the claimants in References under Section 18 of the said Act as the Special Land Acquisition Officer found that the tenants were entitled to 75% of the said amount. These are Cross Appeals preferred by the State Government and the original claimants. 3. The learned counsel appearing for the claimants has taken the Court through the evidence on one Krishna Ramchandra Thakur as well as the evidence of Mr. Jeevan Kulkarni, the valuer examined by the claimants. He submitted that sale instances were produced to show that the market value of the acquired land on the relevant date was in fact more than Rs.20/- per square meter. He submitted that in case of the acquisition of lands in all nearby villages for the same public purpose under the notification of the same date, this Court has granted the market value at the minimum rate of Rs.12/- per square meter. He submitted that the evidence of the expert witness Shri Kulkarni has gone unchallenged. He, therefore, submitted that the claimants are entitled to enhancement. 7 fa392-05 common. j. 4. The learned AGP appearing for the State submitted that in fact the market value of these lands fixed at the rate of Rs.6/-per square meter is on the higher side considering the location of the village in which the lands are situated. He submitted that the claimants adduced no evidence of any comparable sale instances and none of the alleged instances produced by them are in respect of the comparable lands. The learned AGP appearing for the State invited attention of the Court to the cross-examination of witness Krishna Thakur whose evidence has been recorded in common in all the References. He submitted his evidence shows that part of the acquired lands were getting submerged under high tide water and, therefore, the market value of the acquired lands will be considerably reduced as compared to similarly situated lands. He, therefore, submitted that no case is made out for grant of enhancement. 5. I have given careful consideration of the submissions. For the purpose of setting up satellite city of New Bombay, vast tracts of lands falling in 96 villages in Thane as well as Raigad districts were notified for acquisition from the year 1967 to 1972. Large 8 fa392-05 common. j. number of First Appeals arising out of References under Section 18 of the said Act in respect of the said lands were brought to this Court. This Court has delivered various Judgments laying down the market value in respect of agricultural lands notified under Section 4(1) of the said Act for the same public purpose on 3rd February, 1970. The various decisions of this Court have been consistently followed and most of the said decisions were not challenged by the State Government. 6. At this stage, it will be necessary to make a reference to the decision of the Apex Court in the case of Avinash Dhavaji Naik v/s. State of Maharashtra [(2009) 11 SCC Page 171] . The Apex Court was dealing with an Appeal filed by the claimants for enhancement in case of lands situated at village Wahal in District Raigad which was notified for the same public purpose under a notification of the same date i.e. 3rd February, 1970. This was a case where the High Court had fixed market value at the rates of Rs. 5/- and Rs.7/- for the various lands in village Wahal. In the Reference which was subject matter of Appeal before the Apex Court, the same Expert Mr. Jeevan N. Kulkarni was examined. The Apex Court dealt with the case of village Wahal where there was 9 fa392-05 common. j. no industrial or commercial development on the relevant date. Moreover, there were no instances of sale available in respect of the lands situated at village Wahal. This was a case where admittedly there was no electricity connection available in the village on the relevant date. The lands subject matter of the Appeal before the Apex Court were agricultural lands on the relevant date. The Apex Court has dealt with these factual aspects in paragraph Nos. 12 to 15 which read thus : “12. A finding of fact was arrived at by the learned Reference Judge that no sale instance was available for the lands situated in Village Wahal and there was no industrial or commercial development development therein. The Pune-Bombay Highway was constructed in the year 1978. the MIDC pipeline was constructed in the year 1978. There was no railway station nereby the village. The villagers did not obtain any electricity connection. The land was grassy land. In the absence of any example of sale being available, the Reference Court was required to take recourse to other methods of valuation. We do not find that enough materials had been brought on record to establish the ytield of the lands sought to be acquired, which are admittedly agricultural in nature. In all fairness, the State should have brought on record the requisite information viz. the nature of the crop, the annual average yield, availability of irrigation facilities, etc. so as to enable the Reference Court to arrive at a correct decision in regard to grant of compensation under the Act. 13. Although the lands in question were agricultural in nature, they were being used for making a town like 10 fa392-05 common. j. Bombay. A new port known as Nhava Sheva Port had come into being which is a few kilometers away from the village. The roads were being constructed. The road to Nhava Sheva Port from Bombay is a district board road which is within 7 km from the village in questi9on. A copy of the New Bombay Development Plan has been placed before us to point out construction of the national highway i.e. Bombay-Pune Road as also the other district board roads. 14. The potentiality of a land for the purpose of development as also for building purposes would depend upon a large number of factors. For the said purpose, the Court may not only have to bear in mind the purpose for which the lands were sought to be acquired but also the subsequent events to some extent. 15. In a case of this nature the Court may proceed on the presumption that such a vast tract of land viz. 96 villages were sought to be acquired at the same time for construction of New Bombay. We are not unmindful of the fact that development in the entire area was not possible at one point of time. Development of the area must have taken place in phases. We are also not unmindful of the fact that the price of the land may skyrocket depending upon the development as also future potentiality” 7. In the said decision, the Apex Court quoted with approval a decision of this Court relating to acquisition of lands at villages Kamothe and Panvel where belting method was adopted by this Court for fixing the market value of the lands on the basis of the distance from the Bombay Pune Highway. The Apex Court made a Reference to its earlier decision in the case of V. J. Contractor V/s. 11 fa392-05 common. j. State of Gujarat [(2004)-5 SCC 749]. After applying the principle laid down therein, the Apex Court came to the conclusion that the market value of the lands at village Wahal was Rs.10/- per square meter. In paragraph No.21 of the decision, the Apex Court observed that Panvel was at a distance of 9 kilometers from the village Wahal. In the same paragraph, the Apex Court reiterated that there was no electricity supply in the village Wahal on the relevant date. In the light of the principles laid down by the Apex Court in the said decision, the present case will have to be considered. 8. The claimants relied upon three said instances of the three sale deeds of the years 1966 and 68 out of which two were in respect of the lands situated at Karanje gaothan and the third one was in respect of a land situated at village Chanje, which was in gaothan. However, the said instances have been rightly discarded by the Reference Court as the same related to lands in gaothan area. The present Appeals relate to agricultural lands which were not the part of the gaothan area. Apart from the said three sale instances, reliance was placed on an Award of the Reference Court in a reference under Section 18 of the said Act in respect of a land 12 fa392-05 common. j. at village Bhendkhal in Taluka Uran of District Raigad which was also notified on 3rd February, 1970 for the same public purpose. The Reference Court considered the said Award and observed that the land subject matter of the present Appeals were in more advantageous position as the same were situated closer to Uran city than the land subject matter of the said Award in village Bhendkhal. However, the Court considered the admission of the only witness examined by the claimants that the acquired lands were getting submerged due to flood and were also affected by high tide water. Considering these aspects, the market value was fixed at the rate of Rs. 6/- per square meter. 9. The claimants examined Mr. Jeevan Narayan Kulkarni, a valuer as a witness. His report was proved in evidence. Map annexed to the report was also admitted in evidence. In the report, it is stated that the acquired lands were accessible by Uran Karanja road leading to Kranja Jetty. He stated that the village Chanje is siutated abutting city of Uran and that a part of the village Chanje formed part of the Uran Municipal Council on the relevant date. It is stated that acquired lands were in the vicinity of the limits of the Uran Municipal Council. Even in the 13 fa392-05 common. j. examination-in-chief, he reiterated that a part of village Chanje was within Municipal limits of Uran which is a well known town. In the cross examination, he admitted that the electricity and water supply facilities were not directly available to the acquired lands. He stated that Uran city was at a distance of 1.5 miles from the acquired lands and the acquired lands were falling within the limits of Gram Panchayat of village Chanje. 10. Perusal of the map annexed to the report of Mr. Kulkarni which is admitted in evidence shows that village Bendkhal touches the boundary of village Chanje. On one side of both the villages there is a creek. Large number of lands in village Bendkhal were notified under Section 4(1) of the said Act by a notification on 3rd February, 1970 for the same public purpose. In First Appeal No.70 of 1991 (State of Maharashtra V/s. Krishna R. Patil) decided on 18th March, 2008, this Court dealt with an Appeal preferred by the State Government arising out of a Reference under Section 18 of the said Act. This Court noted that village Bendkhal was situated at the distance of 2.5 kilometers from the limits of Uran. Considering the evidence on record, this Court fixed the market value of the acquired lands situated at Village Bendkhal at the rate 14 fa392-05 common. j. of Rs.10/- per square meter. 11. In case village Wahal, the Apex Court in the case of Avinash D. Naik (supra) fixed the market value of the lands at Rs.10/- per square meter even after noting that the land was an agricultural land which did not have electricity supply. The Apex Court considered the fact that a new Port known as Nhava Sheva Port was coming up within two kilometers from the said village. The same is the case that village Bendkhal and village Chanje. As stated earlier, in respect of a land at village Bendkhal, this Court has fixed the market value at the rate of Rs.10/- per square meter. Thus, the market value of the acquired lands in these cases can be arrived at on the basis of the market value fixed by this Court in respect of the lands in the adjacent village Bendkhal. In the case of ONGC Limited V/s. S.V. Patil and Others [(2005) 6 Supreme Court Cases page 554], the Apex Court held that in absence of any evidence of sale instances of lands in the same village, for determining the market value, the Court can always consider the sale instances and the Judgments and Awards in respect of acquisition of lands made in the neighboring villages. The Apex Court held that instances of sale in respect of similar lands 15 fa392-05 common. j. situated in neighboring villages can be always taken as a guiding factors by the Reference Court. The Apex Court has time and again held that the determination of market value under Section 23 of the said Act by its vary nature involves an element of guess work. 12. The Apex Court in the case of Avinash D. Naik (supra) has taken judicial notice of the situation of the villages which were notified for the said public purposes in the year 1970. Apart from the said decision which relates to the village Wahal, there is aforesaid decision of this Court in respect of a land in adjacent village Bendkhal. Therefore, applying the principles laid down by the Apex Court, there is no difficulty in accepting that the market value of the acquired land in village Chanje was approximately Rs.10/- per square meter on the relevant date. However, as far as the lands subject matter of the Appeals are concerned, the witness Krishna K. Thakur in his evidence has admitted that the lands under References were getting submerged in case of floods. He stated that there was an outer embankment constructed for preventing the sea water from entering the lands during the high tide. He stated that if there would not have been outer 16 fa392-05 common. j. embankment, during the high tide, water of the sea could have entered in the acquired lands. It is true that there is no challenge to the fact that on the date of notification under Section 4, there was an embankment in the place which prevented flooding on the land by sea water at the time of high tide. But, this is a negative factor which will reduce the market value of the acquired lands to some extent. On account of the said negative factor, 10% deduction will have to be made and thus the market value of the acquired lands in these cases will have to be fixed at the rate of Rs. 9/- per square meter. There is no dispute as regards grant of statutory benefits. Hence, I pass the following order. :: O R D E R :: i. First Appeal No. 611 of 1993 is dismissed with no order as to costs. ii. First Appeal No. 612 of 1993 is dismissed with no order as to costs. 17 fa392-05 common. j. iii. First Appeal No. 613 of 1993 is dismissed with no order as to costs. iv. First Appeal No. 614 of 1993 is dismissed with no order as to costs. v. First Appeal No. 615 of 1993 is dismissed with no order as to costs. vi. First Appeal No. 616 of 1993 is dismissed with no order as to costs. vii. First Appeal No. 617 of 1993 is dismissed with no order as to costs. viii. First Appeal No. 618 of 1993 is dismissed with no order as to costs. ix. First Appeal No. 619 of 1993 is dismissed with no order as to costs. 18 fa392-05 common. j. x. First Appeal No. 620 of 1993 is dismissed with no order as to costs. xi. First Appeal No.621 of 1993 is dismissed with no order as to costs. xii. First Appeal No. 622 of 1993 is dismissed with no order as to costs. xiii. First Appeal Nos. 392 of 1995, 582 of 1993, 593 of 1995, 575 of 1993, 578 of 1993, 581 of 1993, 576 of 1993, 579 of 1993, 580 of 1993, 600 of 1995, 584 of 1993 and 577 of 1993, are partly allowed. xiv. The impugned Judgment and Awards are modified by directing that the market value of the acquired lands is fixed at the rate of Rs. 9/- per square meter. xv. The claimants will be entitled to statutory benefits under Section 23 (1-A) , 23(2) and Section 19 fa392-05 common. j. 28 of the said Act on 25% of the market value. xvi. The direction of the Reference Court that certain claimants are entitled to only 25% of the compensation amount is confirmed subject to their right of challenging the order by which applications made for References under Section 30 of the said Act have been rejected. xvii. The claimants will be entitled to proportionate costs of the References and the Appeals preferred by them. xviii. Civil Application Nos. 2558 and 2599 of 1993 are allowed in terms of prayer clauses (b) to (d). xix. Civil Application Nos. 2552 and 2559 of 2009 are allowed in terms of prayer clauses (b) to (d). xx. Amendment to be carried out within six weeks from today. 20 fa392-05 common. j. xxi. Civil Application No.6325 of 1993 is disposed of. JUDGE