Ast 1 app751.99.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.751 OF 1999 IN LAND ACQUISITION REFERENCE NO.57 OF 1966 IN LAQ/275-MJ-4 Special Land Acquisitin Officer(2) ) Bombay and Bombay Suburban District, ) Old Custom House Yard, Fort, ) Mumbai 400 001. )... Appellants. Vs. 1. Harmal Shersingh Gupta(Deleted) ) 2. Shri Mahendrakumar Gupta(since deceased) (a) Smt.Sitadevi Mahendra Gupta ) (b)Ms.Anuradha V. Malik. ) (c)Ms.Alka M. Gupta ) (d)Ms.Deepa A. Kothari. ) (e)Ms.Neeti P. Rastogi. ) (f)Ms.Jayant M. Gupta ) 3. Shri Rajendrakumar Gupta ) 4. Shri Chandrakumar Gupta(since deceased ) (a) Manju C. Gupta ) (b) Mukul C. Gupta ) both of Bombay, Indian Inhabitant, ) residing at “Tulsivihar”, Mahim, ) Bombay-400 016. ) (c) Mrs.Rashmi Hardik Kansupada ) Flat No.1, Nutandeep Society, ) Prabhat Colony, Road No.6, ) Santacruz(East),Mumbai 400 055. ) Ast 2 app751.99.sxw 5. Smt.Savitridevi Damodardas Gupta, ) Indian Inhabitant residing ) at “Minakshi” Nayapura Kota, ) Rajasthan, being a married ) daughter of the Original claimant No.1 ) (since deceased) ) 6. Smt. Rama Rajendra Swaroop, ) Indian Inhabitant, residing at ) A-1, Pannalal Colony, Civil Lines, ) Azamgarh(U.P.), being a married ) daughter of the original claimant No.1. ) (since deceased) ) 7. Smt.Prem Janardandas Gupta(since deceased) (a) Janardhan Das Gupta ) (b) Yogesh J. Gupta ) Alakhanada, 11, Raj Bhavan Rd. ) Civil Line Kota, Rajasthan. ) (c) Vibha Singhas ) (d) Abha Bansal. ) (e) Seema Agarwal ) (f) Bharati Agarwal ) (g) Jyoti Agarwal. ) 8. M/s. The Himalayan Tiles and Marbles Pvt.) Ltd. ) c/o Mathubai Jamistram and Madan ) Solicitors, Lentin Chambers, ) Dalal Street, Fort, Bombay 400 001. )... Respondents. -------------- Mr.P.G.Lad, AGP for Appellants. Mr.Tushar Bhavsar i/b. Ms. U.M.Jhaveri for Respondent Nos. 7 to 11. -------------- Ast 3 app751.99.sxw CORAM : D.K.DESHMUKH & V.R.KINGAONKAR, J. DATE : APRIL 7, 2010. JUDGMENT:(Per V.R.Kingaonkar,J) 1. This Appeal is at the instance of Special Land Acquisition Officer(2), Bombay and Bombay Suburban District, against the Award rendered by learned Single Judge in Land Acquisition Reference No.57 of 1966. By the impugned Award, the learned Single Judge enhanced compensation for acquired land in respect of various items enlisted under groups (I) and (II) as shown in paragraph-28 thereof. 2. The Respondents are the original claimants. Their lands bearing Survey Nos. 7 and 8, to the extent of partly Hissa No.2, Hissa No.3, Hissa No.4 and entirely Hissa No.9 and part of Hissa No.3 out of the Survey No.11 situated at Village Majas, South Salsette Taluka, Bombay Suburban, admeasuring 2 acres, 14 gunthas were acquired for construction of Bandra-Borivli Relief Road. Government notification in Ast 4 app751.99.sxw this behalf was duly published in the Bombay Government Gazette dated 6 th March, 1952. It was followed by subsequent notification under section 4 of the Land Acquisition Act, 1894 dated 19 th September, 1956, for further acquisition of additional lands required for the same purpose. The lands were jointly surveyed thereafter. The acquired areas were ascertained. Notification under section 6 of the Land Acquisition Act was published on 20 th December, 1956. The SLAO, who is Appellant herein, declared the Award under section 11 of the Land Acquisition Act, 1894(for short “the L.A.Act”). The claimants were dissatisfied with the quantum of compensation awarded by the Appellant and therefore submitted reference application under section 18of the L.A.Act. The Collector, thereafter, made reference to this Court. 3. The case of the claimants, before the Reference Court was that the acquired land was situated in the middle of the developed area having various municipal amenities like water supply, electricity, drainage, etc. The acquired land was a part of factory land on which M/s. Himalayan Ast 5 app751.99.sxw Tiles and Marbles Pvt.Ltd., a factory of the claimants was located. They claimed compensation in respect of various structures which came to be demolished as a result of acquisition and also sought enhancement of compensation due to injurious affectation. They alleged that due to that acquisition, the road passing through their lands caused severance of land into two unequal parts. The major part comprising of developed area on which their factory, office, godown, garage. etc. were standing have been greatly affected. They contended that they would be required to shift entire factory premises, office and the garage to some other places and for such purpose would require investment and expenditure. They further alleged that they have suffered loss of business as a result of the acquisition of their lands. They asserted that the structure from the eastern side, where the acquired land is situated, will have to be shifted on the western side of the highway in the remaining land available to them and for such purpose they would be required to incur extra expenditure. They submitted that the compensation awarded for various items like cost of construction of compound wall, loss of factory shed, Ast 6 app751.99.sxw valuation of the constructed building etc. by the SLAO are on quite lower side. Consequently, they sought enhancement of the compensation. 4. The claimants did not adduce evidence of any independent valuer. They sought to rely upon testimony of C.W.Mahendrakumar Gupta, who happens to be the first director of the claimant No.2 i.e. M/s. Himalayan Tiles and Marbles Private Ltd.. The learned Single Judge considered the testimony of C.W. Mahendrakumar Gupta. The learned Single Judge held that the claimants could not prove the claim for compensation in respect of underground water storage tank. The learned Single Judge, in fact, came to the conclusion that the claimants’ witness i.e. C.W.Mahendrakumar Gupta was unable to produce any document or material to support the claim for the enhancement in respect of the items such as shed for Hydraulic test machine, R.C.C.Water Tank, R.C.C. 3 water Tanks, standing wall of southern side, two sheds for assembling moulds, shed for factory and pucca constructed building compound wall to northern side and Labour Hutment. Insofar as these items are Ast 7 app751.99.sxw concerned, the learned Single Judge has observed thus: “However, in respect of this claim, the Executive Engineer, P.W.D. Has filed his valuation and after considering the valuation given by the claimants and the Executive Engineer of acquiring body, namely, P.W.D., the Special Land Acquisition Officer has passed his award.” The learned Single Judge accepted the valuation which was indicated in the report of the Executive Engineer, P.W.D. In fact, for similar reasons, the enhanced compensation awarded in respect of the injurious severance and affectation caused to the acquisition of the land. 5. We have heard the learned AGP and Counsel for the respondents. 6. At the threshold, it may be mentioned that the claimants did not call for the Executive Engineer of P.W.D. to prove the report of valuation. The main edifice of the impugned Judgment is on the valuation shown in the said report. This valuation report could not have been referred and used Ast 8 app751.99.sxw by the learned Single Judge when there was no corroborative evidence adduced by the claimants in order to prove the same. The legal position in this context is explicit in view of “Chimanlal Hargovinddas V/s. Special Land Acquisition Officer, Poona and Anr.”(AIR 1988 SC 1652). The Apex Court held that a reference under section 18 is not an appeal against the award and therefore the Court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the Court. It is observed : “(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court. Ast 9 app751.99.sxw (3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.” 7. Now, the oral evidence of C.W.Mahendrakumar Gupta reveals that the land is bisected and the factory shed was in the eastern land, that came to be acquired. Major enhancement of compensation awarded by the learned Single Judge is on the count of severance and injurious affectation. The SLAO had awarded Rs. 5,000/- on this count. The learned Single Judge held that the compensation could be enhanced to Rs. 3,15,235.70 ps. The reasons ascribed by the learned Single Judge go to show that such enhancement is result of conjuncture and so called report submitted by the Executive Engineer, P.W.D. The relevant observations in the impugned Judgment may be reproduced as follows: Ast 10 app751.99.sxw “In respect of these claims the Special Land Acquisition Officer has awarded a sum of Rs.5000/- which I find to be very low and grossly inadequate. In this claim for severance and injurious affectation, no doubt the claimants have not brought any evidence before this Court but we have the evidence of valuation given by the Executive Engineer of acquiring body namely P.W.D. which is the best piece of evidence available and supports the case of the claimants to the extent that the amount awarded by the Special Land Acquisition Officer is grossly inadequate. Therefore, to that extent the claim of the claimants has been supported and the claimants are entitled to receive in respect of their claim under severance and injurious affectation the amount awarded by the Special Land Acquisition Officer for retaining walls, Mineral department complete shed, tiles and marble factory, godown and quarters, common toilet facilities, office building and staff quarters, engineering workshop and foundry, garages and substation which works out to a sum of Rs.3,15,235.70 as against which the Special Land Acquisition Officer has awarded a sum of Rs.5000/- which is grossly inadequate.” 8. Perusal of the above observations clearly shows that the learned Single Judge did not consider any other material in support of the findings in respect of the enhanced claim for compensation except that of the valuation report of the Executive Engineer of P.W.D.. The learned Single Judge considered such report as “the best piece of evidence” available to lend assurance to the claims put forth by the claimants. It need not be reiterated that the said report could not be used in any Ast 11 app751.99.sxw manner without furnishing proof by the claimants. It was not of any avail to them. Needless to say, the findings recorded by the learned Single Judge are improper and unsustainable. For, such findings are unsupported by any tangible evidence. Though the version of C.W. Mahendrakumar Gupta is elaborately reproduced in the impugned Judgment, yet he could not highlight and prove the claim for compensation on account of various items. The only material fact stated by him is that as a result of the construction of Bandra-Borivli Relief Road, the area approximately 12500 sq.yards has been left out at eastern side, which could be available to the claimants. He stated that due to change in the alignment, a small portion at eastern side would be available for shifting of the industrial unit. The learned Single Judge observed that the claimants sought to rely upon the sketch map of the plan(Exh.A) to indicate location of the factory. The learned Single Judge observed that the said map was not admitted by the Appellant(SLAO). The map was not proved by any witness. Still, however, the learned Single Judge appears to have inferred that only small area would be Ast 12 app751.99.sxw available to the claimants for use due to the alleged alignment as a result of acquisition of the western land. It is observed : “However, curiously enough, on behalf of the Special Land Acquisition Officer, no evidence is led, no documents are produced and, therefore, Shri Patki, who appeared on behalf of the Special Land Acquisition Officer, was seriously affected inasmuch as he did not have any material with him in respect of this land acquisition reference.” Perusal of the above observation go to show that the learned Single Judge erroneously placed burden of proof on the SLAO. It is well settled that the claimants, who staked the claim for enhancement of compensation must prove their claim independently. No benefit can be taken of the fact that the SLAO did not adduce any evidence in the reference case. 9. The learned Single Judge granted enhancement of compensation on account of items like value of Hydraulic Test Machine, Steel Water Tank, Load Testing Machine foundation and damages due to dismantling, Ast 13 app751.99.sxw removal of rubble and restacking thereof. So also, compensation was enhanced on account of probable cost of construction of new compound wall. These are items in the context of which there is enhancement of Rs. 1,000/-, Rs. 900/-, Rs.1,500/-, Rs.28,000/-, Rs.24,500/- and Rs.18,000/- respectively. The learned Single Judge however, held that the claimants have not been able to bring before the Court any evidence except bare oral testimony of the witness, which is not supported by any document. The learned Single Judge did not rely upon the solitary and interested version of C.W.Mahendrakumar Gupta. The learned Single Judge in this context observed : “The SLAO also has not cared to produce any evidence to discredit the case of the claimants or valuation given by the Acquiring Body. Therefore, so far as these structures are concerned, the claimants have proved their claim for enhancement to the extent of valuation as given by the Acquiring Body namely P.W.D.” Needless to say, the learned Single Judge appears to have committed error while awarding enhanced compensation in respect of the aforesaid items though there was no tangible evidence to support such claims. Ast 14 app751.99.sxw 10. We have noticed that the enhancement is awarded in respect of the loss of business. The learned Single Judge held that compensation for loss of business could be quantified at Rs. 40,000/- having regard to the probable period required for commencement of Tiles factory, which the claimants were required to shift from the acquired property. The SLAO awarded compensation of Rs. 20,000/- on the basis of assumption that six months period was required for the purpose of shifting the business. The learned Single Judge held that atleast one year period is required for the purpose of shifting of such business. Therefore, compensation of Rs.20,000/- more was awarded on that count. The contemplated period was not assessed on the basis of any rational foundation. The SLAO gave finding to the effect that somewhere around June, 1965, the claimants could have started the factory. The claimants failed to adduce any evidence as to how much period was required for the purpose of shifting of the factory unit. The Land Acquisition proceedings were started way back in 1952 and therefore, shifting of the factory premises Ast 15 app751.99.sxw was well anticipated by the claimants. They could have made necessary arrangement for early shifting of the factory premises without difficulty. In any case, without there being sufficient evidence to infer that one year period could have been consumed for shifting of the business, it is difficult to countenance the enhancement on this count. One cannot be oblivious of the fact that manufacturing of tiles is not a complicated process which requires installation of huge machineries. The business of Himalayan Tiles and Marbles Private Ltd. was already being conducted in the western area. The same machinery was to be shifted in the new shed. Considering these aspects, the enhancement of compensation on account of loss of business to the claimants is unreasonable. 11. The learned Single Judge enhanced compensation in respect of the loss of access to 26,000 sq.yards due to severance. The reasons ascribed by the learned Single Judge appear to be rather queer. The claimants had not put forth any such claim before the SLAO. They had not canvassed any argument in support of the claim for compensation in Ast 16 app751.99.sxw respect of 26,000 sq.yards of land on the ground that it was unaccessible as a result of the acquisition of the western area. It was pointed out by the learned Counsel for the Appellant that the Reference Application did not show any such claim. It was argued before the learned Single Judge that without there being pleadings in the context of such claim, the compensation need not be considered on that count. Still, however, the claim was allowed by permitting necessary amendments in the application. The learned Single Judge held that the claimants were entitled to recover compensation at the rate of Rs. 3.75 per sq. yard due to severance and injurious affectation of 26,000 sq.yards area as a result of the acquisition in question. 12. We have carefully considered the reasons ascribed by the learned Single Judge in support of the Award of damages/compensation of Rs. 97,500/- for alleged loss of access to 26,000 sq.yards area due to severance. We find it difficult to subscribe the finding of the learned Single Judge. In fact, there was absolutely no such claim put forth before Ast 17 app751.99.sxw the SLAO. No such case was made out by the claimants in their pleadings before commencement of the trial. Their amendment application filed at fag end of the trial, at stage of the argument before the learned Single Judge was clearly time-barred. The Reference Application under section 18 of the L.A. Act is required to be preferred within six weeks from the date of the Collector’s Award. Sub-Section (2) of Section 18 of the L.A.Act reads as follows: “18. Reference to Court.-(1) xxxxxx (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,- (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector’s award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector’s award, whichever period shall first expire.” 13. The claim on account of so-called severance of 26,000 sq.yards of the land was clearly barred by the Limitation and ought not to have been Ast 18 app751.99.sxw allowed to be put forth when the entire trial procedure was over. In our opinion, the learned Single Judge committed patent error while allowing such a claim which was unsupported by any evidence and was patently barred by limitation. For, the Reference Application was filed in the year 1962 and was registered as Land Acquisition Reference No.57 of 1966. The claimants were allowed to carry out amendment after 10 years i.e. prior to December 24, 1996, as mentioned at the fag end of the paragraph-19 of the impugned Judgment. Under the circumstances, the enhancement on account of severance and injurious affectation is impermissible. 14. We have also noticed that the enhancement of compensation on account of other items such as value of R.C.C. Water Tank, value of shed for assembling moulds, shed of factory, value of constructed building and that of the compound wall of northern side have been allowed without there being any legal evidence in this behalf. We are of the opinion that the impugned Award is unsustainable, since it has been rendered Ast 19 app751.99.sxw without substratum. Taking over all view of the matter therefore, in our opinion, the impugned Award is liable to be set aside. 15. Accordingly, the Appeal is allowed. The impugned Award is set aside and that of the SLAO is restored. No order as to cost. [D.K.DESHMUKH,J] [ V.R.KINGAONKAR, J ]