ash 1 fa-1148.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1148 OF 1998 The State of Maharashtra. .. Appellant Vs Suresh Marutrao Jadhav & Anr. .. Respondents -- Shri A.R. Patil, AGP for the Appellant. Shri V.B. Rajure for Respondent No.1. Shri T.S. Ingale for Respondent No.2. -- CORAM ; A.S. OKA, J DATED : 14TH MARCH, 2011 ORAL JUDGMENT: . Heard learned AGP for the Appellant and the learned counsel appearing for the Respondent No.1 as well as the learned counsel appearing for Respondent No.2. 2. The challenge in this Appeal is to the judgment and award dated 2nd May, 1997 passed by the Reference Court in a Reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”) made at the instance of the 1st Respondent. ash 2 fa-1148.98 3. The acquisition relates to the land bearing Revision Survey No.53/1 and 56 situated at Ichalkaranji. The area of 31 Ares, out of the said lands was notified for acquisition at the instance of the Municipal Council of Ichalkaranji. The 2nd Respondent is the Municipal Council which is an acquiring body. The development plan for the city of Ichalkaranji was sanctioned by the Government vide Notification dated 25th May, 1981. Various lands were reserved for the public purposes under the said development plan. A Notification under Section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 read with Section 6 of the said Act was published on 27th February, 1986. Under the award under Section 11 of the said Act, the market value was offered at the rate of Rs.17.50ps per sq. meter. At the instance of the 1st Respondent, the aforesaid reference under Section 18 of the said Act was made for considering the prayer for enhancement in market value. By the impugned award, the market value has been fixed at the rate of Rs.150/- per sq. meter. 4. The learned AGP has relied upon a decision of the Division Bench of this Court dated 2nd April, 2009 in First Appeal No.941 of 1997 ( Ichalkaranji Municipal Council v. Niram Rajaq Kalawant & Anr.) and other connected Appeals. He submitted that in case of similarly situated lands, the Division Bench fixed the market value at Rs.185/- per sq. meter but made a deduction of 25% on account of development ash 3 fa-1148.98 charges. He, therefore, submitted that after taking into account the development charges, the market value of the acquired land cannot exceed Rs.138.75 per sq. meter. Learned counsel appearing for the 2nd Respondent supported the learned AGP. The learned counsel for the 1st Respondent claimant supported the award. However, Learned counsel appearing for the 1st Respondent could not dispute that the judgment of the Division Bench in First Appeal No.941 of 1997 was in relation to the similarly situated lands. 5. I have given careful consideration to the submissions. I have perused the judgment dated 2nd April, 2009. It must be stated here that the land bearing revision Survey No.56 was one of the lands which was subject matter of the group of Appeals bearing First Appeal No.941 of 1997 and other connected Appeals decided by the Division Bench. In fact, the Respondent herein was a claimant/Respondent in First Appeal No.1107 of 1997 which was decided by the Division Bench along with First Appeal No. 941 of 1997. In the case before the Division Bench, the Reference Court had fixed the market value ranging from Rs.110/- to Rs.185/- per sq. meter. In some cases, no deductions were made by the Reference Court on account of development charges and in three cases, deductions were made of 25% and 33%. The Division Bench came to the conclusion that the market value of the acquired lands was Rs.185/- per sq. meter. The said market value has ash 4 fa-1148.98 been fixed even in respect of the same revision survey No.56 a part of which was a subject matter of the Appeal before the Division Bench. Uniformly, 25% deduction has been made by the Division Bench. 6. It is true that the 1st Respondent has not filed any cross appeal or any cross objection. As per the decision of the Division Bench, the 1st Respondent will be entitled to market value at the rate of Rs.185/- per sq. meter. However, the deduction of 25% must follow and thus the market value will have to be at Rs.138.75 per sq. meter. Even by invoking the power under Rule 33 of Order XLI of the Code of Civil Procedure, 1908, if the market value is enhanced to Rs.185/- per sq. meter, there will be deduction of 25%. Hence, the entitlement of the 1st Respondent is to the market value at the rate of Rs.138.75 per sq. meter. 7. Thus, following the decision of the Division Bench, after fixing the market value at Rs.185/- per sq. meter, the deduction of 25% i.e. Rs.46.25 per sq. meter will have to be made. Thus, the net market value will be Rs.138.75 ps. per sq. meter. 8. To that extent, the impugned award will have to be modified. Hence, the Appeal must succeed in part. There is no dispute regarding statutory benefits granted to the 1st Respondent. ash 5 fa-1148.98 9. Hence, I pass the following order: (a) The Appeal is partly allowed. (b) The market value of the acquired lands is fixed at Rs. 138.75 ps per sq. meter instead of Rs.150/- per sq. meter. Rest of the award is not disturbed and the same is confirmed. (c) There will be no orders as to costs. ( A.S. OKA, J )