[1] IN IN IN THE THE THE H H HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.2687 OF 1999 NO.2687 OF 1999 NO.2687 OF 1999 Municipal Corporation of Greater Mumbai, a statutory body incorporated under the Mumbai Municipal Corporation Act, 1888 having its office a Mahapalika Marg, Mumbai-400 001. .... Petitioners - Versus - 1. State of Maharashtra 2. The Desk Officer (Revenue & Forest Department, having its office at Mantralaya, Mumbai-400 032. 3. The Special Land Acquisition Officer (7), having office at Chhatrapati Shivaji Maharaj Market, Mumbai-400 001. 4. The Colaba Land & Mill Co. Ltd., a Public Limited Company, having its registered office at 1017, Raheja Chambers, 213, Nariman Point, Mumbai-400 021. .... Respondents Sarvasri K.K. Singhvi, Senior Counsel, with U.J. Makhija and Vinod Mahadik for the Petitioners. Sarvasri Milind Sathe with M.D. Naik, Asst. Government Pleader, for the Respondent Nos.1 to 3. Sarvasri E.P. Bharucha, Senior Counsel, with S.J. Kathawala i/b Raju Moray for the Respondent No.4. WITH WITH WITH WRIT WRIT WRIT PETITION PETITION PETITION NO.1392 OF 1999 NO.1392 OF 1999 NO.1392 OF 1999 The Colaba Land & Mill Co. [2] Ltd., a Public Limited Company, having its registered office at 1017, Raheja Chambers, 213, Nariman Point, Mumbai-400 021. .... Petitioners - Versus - 1. State of Maharashtra 2. The Special Land Acquisition Officer (7), having office at Chhatrapati Shivaji Maharaj Market, Mumbai-400 001. 3. Brihanmumbai Municipal Corpo- ration having its office at 1, Mahapalika Marg, Mumbai-400 001. .... Respondents Sarvasri E.P. Bharucha, Senior Counsel, with S.J. Kathawala i/b Raju Moray for the Petitioners. Sarvasri Milind Sathe with M.D. Naik, Asst. Government Pleader, for the Respondent Nos.1 & 2. Sarvasri K.K. Singhvi, Senior Counsel, with U.J. Makhija and Vinod Mahadik for the Respondent No.3. CORAM: CORAM: CORAM: R.M.S. KHANDEPARKAR & V.M. KANADE, JJ. DATED: DATED: DATED: SEPTEMBER 19 & 20, 2005 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT (Per R.M.S.Khandeparkar, J.): (Per R.M.S.Khandeparkar, J.): (Per R.M.S.Khandeparkar, J.): 1. Since common questions of law and facts arise in both these petitions, they were heard together and are being disposed of by this common judgment. 2. In Writ Petition No.2687 of 1999 the petitioner-Corporation seeks to challenge the Government decision in relation to fixation of the market value for [3] the acquired land, as also the award dated 8-2-1999, passed by the Special Land Acquisition Officer based on the said circular in relation to the land bearing C.S.No.649, situated at Colaba, Mumbai, whereas in Writ Petition No.1392 of 1999 the owners of the land under acquisition seek direction for forthwith payment of the amount awarded under the said award dated 8-2-1999. 3. Consequent to the finalisation of the development plan for the concerned area including the Colaba division by 20-7-1990, the owners of the plot in question served the statutory notice upon the State Government on 14-12-1992. The notice was confirmed by the respondent No.1-State on 19-5-1993 which was followed by the resolution of the Corporation for acquisition of the land in question and consequently a declaration under Section 126(2) and 126(4) of the Maharashtra Regional and Town Planning Act, 1966, hereinafter referred to as "the MRTP Act" r/w Section 6 of the Land Acquisition Act, 1894, hereinafter referred to as "the said Act" was issued by the State on 20-5-1994 in relation to the said plot. Thereafter there was a circular issued on 31-10-1994 in relation to the Government decision on the point of market value of lands to be acquired under the said Act. As there was considerable delay in passing the award, the owners of the plot filed Writ Petition in August, 1998 and consequent to the order passed therein on 7-9-1998, the [4] acquisition proceedings were disposed of by an award dated 8-2-1999. It was followed by the Notice under Section 12(2) of the said Act but the compensation amount fixed under the said award was not paid. Hence the petition bearing No.1392 of 1999 came to be filed on 6-5-1999 and pursuant to the interim order passed on 24-6-1999, the Corporation deposited an amount of Rs.5,35,47,040/- in the Court on 18-8-1999. Under the interim order dated 3-12-1999, the owners were permitted to withdraw a sum of Rs.1,57,00,000/- and the balance being kept invested. 4. While challenging the impugned award and the circular, Sri K.K. Singhvi, the learned senior counsel appearing for the Corporation, drawing attention to Section 50 of the said Act which disentitles the local authority for whose benefit the land is sought to be acquired to seek reference under Section 18 in relation to the award passed pertaining to the acquired land, submitted that the Land Acquisition Officer, in the case in hand, after discarding the sale instances submitted before him in support of the claim regarding valuation of the land, without ascertaining the market value of the land sought to be acquired, merely on the basis of the ready reckoner proceeded to award the compensation in relation to the land in question. Placing reliance in the decisions of the Apex Court in the matter of Krishi Krishi Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun, Utpadan Mandi Samiti, Sahaswan, District Badaun, Utpadan Mandi Samiti, Sahaswan, District Badaun, [5] through through through its Secretary v. Mohammed Ibrahim and another, its Secretary v. Mohammed Ibrahim and another, its Secretary v. Mohammed Ibrahim and another, reported in (2004) 2 SCC 286 and Jawajee Nagnatham v. Jawajee Nagnatham v. Jawajee Nagnatham v. Revenue Revenue Revenue Divisional Officer, Adilabad, A.P. and others, Divisional Officer, Adilabad, A.P. and others, Divisional Officer, Adilabad, A.P. and others, reported in (1994) 4 SCC 595, it was submitted that as per the Apex Court ruling the market value of the land acquired cannot be ascertained merely on the basis of the ready reckoner and therefore, the fixation of the compensation by the Land Acquisition Officer, defying the said ruling, discloses arbitrary exercise of powers and hence his award to be bad in law and therefore needs to be set aside and the matter to be remanded for fresh adjudication as regards the compensation to be paid to the owners of the land acquired. The impugned circular which mandates the Land Acquisition Officer to follow the ready reckoner for the valuation of the acquired properties is contrary to the provisions of Section 23 of the said Act and the said ruling. Besides, it seeks to divest the Land Acquisition Officer from his discretionary power which he is otherwise entitled to exercise under the statutory provisions applicable to the cases of land acquisition. He has further submitted that the Land Acquisition Officer in the absence of sale instances in relation to the pieces of land comparable with the land in question, merely by referring to the ready reckoner, could not have fixed the compensation at the rate which has been fixed in relation to the land in question. [6] 5. Sri Milind Sathe, the learned Advocate appearing for the State has submitted that the impugned circular nowhere issues any mandate to the Land Acquisition Officer to follow the ready reckoner without ascertaining as to whether the amount specified as the market value of a land in the particular area can be applied to the land acquired ignoring the evidence adduced by the parties. On the contrary it merely lays down certain guide-lines to ascertain the market value of the land under acquisition and therefore no fault can be found with the said circular. He has further submitted that the Land Acquisition Officer, having discarded the sale instances being of no help to ascertain the market value, after taking into consideration the location and the nature of the land in question, and considering the same being from the area for which the slab mentioned in the ready reckoner is applicable, further taking into consideration the advantages and disadvantages in relation to the land in question, has arrived at the market value of the land and therefore there is no illegality committed by the Land Acquisition Officer nor the award discloses any arbitrariness in the matter of ascertaining the market value of the land in question. 6. Sri E.P. Bharucha, the learned senior counsel appearing for the respondent No.4, taking us through the relevant portion of the impugned award, has submitted [7] that the Land Acquisition Officer taking into consideration the location, advantages and disadvantages of the land in question and the value of the land in the locality disclosed from the ready reckoner has arrived at the market value of the land and such a procedure cannot be found fault with, more particularly bearing in mind the provisions of the Bombay Stamp (Determination of True Market Value Property) Rules, 1995, hereinafter referred to as "the Stamp Rules". According to the learned Advocate, the decision of the Apex Court in the matter of Jawajee Nagnatham’s Jawajee Nagnatham’s Jawajee Nagnatham’s case (supra) is clearly distinguishable in as much as that the said matter arose from a decision of the Andhra Pradesh High Court and in the State of Andhra Pradesh, there are no Rules like the Stamp Rules. Under the Stamp Rules, there is a statutory procedure laid down for the purpose of preparation of the ready reckoner in relation to the prices of the land and therefore reliance placed in the ready reckoner prepared on the basis of such statutory provisions cannot be found fault with, nor the decision in Jawajee Nagnatham’s case can be of any help to the petitioner-Corporation to find fault with the procedure adopted by the Land Acquisition Officer for ascertaining the market value. He has further submitted that the ready reckoner is prepared after taking into consideration all the necessary data required for the purpose of ascertaining the market value of the land and it takes into consideration not only the location but [8] also the nature of the land as well as the other relevant factors necessary to ascertain the market value and that is apparent from the provisions of law comprised under Rules 3 and 4 of the Stamp Rules. He has also made a serious grievance about the failure on the part of the Corporation to take possession of the land acquired, while contending that on the one hand the owner is informed about the acquisition of his land and thereby the owner’s right to utilise the plot to his advantage is freezed and on the other hand no compensation on account of the acquisition of land is paid though the award was passed as long back as in the year 1999. 7. In the facts and circumstances of the case and upon hearing the learned Advocates, three points arise for consideration. Firstly, whether the Land Acquisition Officer can fix the market value of a land under acquisition solely on the basis of ready reckoner regarding the rates of land in the locality prepared under the Stamp Act? Secondly, whether the circular dated 31-10-1994 interferes with the discretion of the Land Acquisition Officer in the matter of fixation of the market value for the land acquired and therefore is bad in law? Thirdly, whether the Corporation can postpone to take over possession of the acquired land even after pronouncement of the award? [9] 8. The Apex Court in Krishi Utpadan Mandi Samiti’s Krishi Utpadan Mandi Samiti’s Krishi Utpadan Mandi Samiti’s case (supra) had disapproved the decision of the reference Court in relation to the market value of the land acquired solely on the basis of the order of the Stamp Officer while reiterating its earlier decision in the matter of Jawajee Nagnatham’s case. In Jawajee Nagnatham’s case the Apex Court while dealing with the question as to whether the valuation register can be an evidence to determine the market value of a land had observed that such registers are prepared and maintained for the purpose of collecting stamp duty and it has no statutory base or force and therefore it cannot form a foundation to determine the market value of the land mentioned in the instrument brought for registration and equally it would not be a basis to determine the market value under Section 23 of the said Act. The law on the point that such register, which is essentially prepared for ascertaining the market value of the land which is the subject-matter of an instrument brought for registration, having no statutory base or force, cannot be a reliable evidence for the purpose of ascertaining the market value of the land sought to be acquired under the said Act or the MRTP Act is well-settled. 9. The ruling of the Apex Court undoubtedly discloses that the ready reckoner in the case before it was prepared without any statutory basis. Sri Bharucha, however, while referring to Rules 3 and 4 of the Stamp [10] Rules, has sought to contend that those rules make necessary provision for the required statutory basis for the purpose of preparation of the ready reckoner in relation to the prices of the land in different locality and therefore the said decision of the Apex Court which is in relation to the ready reckoner prepared without statutory basis can be of no help to the petitioner-Corporation in the case in hand. 10. Undoubtedly, in terms of Rules 3 and 4 of the Stamp Rules, there are certain guide-lines prescribed for the purpose of preparation of ready reckoner in relation to the prices of the land in a locality. However, it is also to be noted that the said provisions regarding the basis for preparation of ready reckoner have been inserted by way of amendment to the Stamp Rules with effect from 14-8-1995. In the case in hand, undisputedly, the Notification in terms of Section 126 of the MRTP Act was issued on 20-5-1994. The impugned award records the date of publication of the Notification being 25-5-1995 and the same to be the relevant date for valuation. The said date of 25-5-1995 refers to the publication of the notice on the site. In fact, the notice was published in the official gazette on 21-7-1994. Obviously therefore, the relevant date for the purpose of fixation of the market value would be 21-7-1994 and not the date on which the Notification was published at the site. The Stamp Rules which were in [11] force prior to 14-8-1995 did not prescribe the procedure which is enumerated under Rules 3 and 4 of the Stamp Rules. In fact, the earlier Rules were the Bombay Stamp (Determination of True Market Value Property) Rules, 1981, hereinafter referred to as "the Stamp Rules of 1981". Perusal of the Stamp Rules of 1981 nowhere discloses any procedure similar to one prescribed under Rules 3 and 4 of the Stamp Rules. Being so, any ready reckoner which was prepared prior to 14-8-1995 cannot be said to have any statutory basis as such. Hence the decision of the Apex Court relied upon on behalf of the Corporation would squarely apply to the facts of the case in hand. 11. Even otherwise, perusal of Rules 3 and 4 of the Stamp Rules though would disclose that for the purpose of preparation of the ready reckoner, the data to be collected includes average annual rates, grouping of the properties, sub-grouping and classification depending upon the types of the land, types of construction, locational and situational advantages or dis-advantages of property, and for arriving at the final figure of the market value for the purpose of ready reckoner, the Rule 4(2) specifically provides that "While working out the average rates, of land and buildings, the concerned officers shall take into account the established principles of the valuation and any other details that they may deem necessary.". Essentially the ready [12] reckoner would be in relation to the average rates. Being so, it can serve as the guide-line but cannot be a substantive piece of evidence regarding the market value of a land under acquisition. Though such ready reckoner prepared subsequent to the Stamp Rules and prepared according to the provisions comprised under Rules 3 and 4 could be of some help to the Land Acquisition Officer in ascertaining the market value of the land but by itself the ready reckoner cannot be a substantive piece of evidence to arrive at the final figure regarding the market value. Such evidence will have to be read along with the other materials on record and there must be some corroborative piece of evidence in support of the average rate arrived at in the ready reckoner. The rate slab for a particular area specified in the ready reckoner should not be accepted as the final rate for the entire area of the locality irrespective of the location of the land under acquisition in the concerned locality, the nature of land and the advantages and disadvantages of such land. All these factors, factually and legally, will have to be considered and the necessarily other evidence in relation to the market value vis-a-vis the advantages and disadvantages will have to be taken note of and properly weighed before arriving at the final figure regarding the market value of the land under acquisition. 12. In fact the Apex Court as long back as 1959 in the [13] matter of The Special Land Acquisition Officer, The Special Land Acquisition Officer, The Special Land Acquisition Officer, Bangalore Bangalore Bangalore v. T. Adinarayan Setty, v. T. Adinarayan Setty, v. T. Adinarayan Setty, reported in AIR 1959 SC 429 had laid down the methodology to be followed for the purpose of ascertaining the market value of the land sought to be acquired. The method of valuation which got the judicial recognition under the said decision requires proper consideration of the experts’ opinion, price paid within a reasonable time in bona fide transaction of purchase of land acquired or land adjacent to the land acquired and possessing similar advantages and the proof of areas purchased, and the actual or immediate prospective profits of the land acquired. By no stretch of imagination it can be assumed that the ready reckoner would reveal all these aspects of the valuation and particularly the actual and immediate prospective profits of the land under acquisition. Therefore, the party whose land is sought to be acquired has to produce necessary evidence in support of the market value, as claimed by him. Ignoring those materials and merely on the basis of the ready reckoner, it is neither possible nor permissible to ascertain the market value of such land. 20th 20th 20th September, 2005 September, 2005 September, 2005 13. The very concept of aggregate the rate or the price of the land or the properties in a particular locality excludes consideration of advantages and disadvantages [14] of individual plots and therefore the question of applying the aggregate rates arrived at in the ready reckoner for ascertaining the market value of the land acquired does not arise at all. It is well-settled that in case of fixation of the market value of the land under acquisition on the basis of the evidence led by the parties, the issue of comparability i.e. the comparison between the land acquired and the land which is the subject-matter of the documentary evidence sought to be produced by the parties, should be considered and the market value of the land acquired has to be ascertained bearing in mind the provisions of Section 23 and 24 of the Land Acquisition Act as well as the judicial pronouncements in that regard. Though the provisions of Sections 23 and 24 of the said Act are applicable to the proceedings before the reference Court, the principle behind the said provisions should not be ignored by the Land Acquisition Officer while fixing the compensation under Section 11 of the said Act. Being so, the contention that because the ready reckoner has statutory basis since 1995 that same could safely be relied upon for ascertaining the market value of the land acquired cannot be accepted. 14. Perusal of the impugned award in the case in hand undoubtedly discloses that the Land Acquisition Officer had discarded the sale instances which were sought to be relied upon as of no assistance to ascertain the market [15] value of the land in question and then after referring to the rate stated to have been disclosed by the Deputy Director of Town Planning and the slab of Rs.3000/- per sq.ft. in relation to the "A" Ward in the residential zone under the development plan in the ready reckoner and taking note of the nature of the land in question and few of its advantages and disadvantages has fixed the market value of the land in question at the rate of Rs.40,000/- per sq.mtr. 15. However, while taking into consideration the nature of the land and few of the advantages and disadvantages in relation to the land under acquisition and applying the rate disclosed under the ready reckoner to be the basis for arriving at the market value of the land in question, the reference Court totally failed to deal with the issue relating to comparability between the land in question and the land which was the subject-matter of fixation of the aggregate value at Rs.3000/- per sq.ft. under ready reckoner in relation to "A" Ward of the residential zone of the development plan. Merely because the aggregate value in the "A" Ward of the residential zone in the locality was disclosed to be Rs.3000/- per sq.ft., that itself cannot be the basis for ascertaining the market value merely by referring to the nature of the land in question along with few of its advantages and disadvantages. It was also necessary to consider the factors which might have [16] weighed with the authorities in arriving at the aggregate value of the land in the "A" Ward in the residential zone. Without ascertaining those factors and comparing them with the advantages and disadvantages attached to the land in question along with the nature of the land in question, if one proceeds to adopt the rates under ready reckoner, then it would reveal arbitrariness in evaluating the market value of the land acquired. Evidently, the award nowhere discloses the necessary exercise in that regard having been done by the Land Acquisition Officer before accepting the aggregate value of Rs.3000/- disclosed in the ready reckoner to be the basis for arriving at the market value of the land in question. 16. In the absence of consideration of the comparability of the land in question with the land for which the aggregate value of Rs.3000/- per sq.ft. was fixed in the ready reckoner, it discloses arbitrary exercise of power by the Land Acquisition Officer in applying the said criteria for fixation of the market value of the land in question. The petitioner-Corporation, therefore, is justified in contending that the Land Acquisition Officer did not apply the prescribed procedure, known to law, and well-settled by a catena of judicial pronouncements of the Apex Court as well as of this Court in relation to the methodology to be followed for the purpose of [17] ascertaining the market value of the land acquired. Undoubtedly, in case of fixation of the market value, it would always involve some guess work. However, the guess work cannot be without basis. It should reveal proper application of mind not only to the nature of the land and its advantages and disadvantages which is the subject-matter of the acquisition but also to the land which has been the subject-matter of the documentary evidence sought to be produced in support of the claim for a particular valuation of the land under acquisition. Once the same is not disclosed in the assessment of the evidence by the Land Acquisition Officer before arriving at the particular value of the land, certainly it would be an arbitrary exercise of powers in that regard and that itself would justify interference by this Court in writ jurisdiction when the aggrieved party has no alternative efficacious remedy either under Section 18 of the said Act or similar such remedy. 17. In the circumstances, therefore, the valuation sought