ash 1 fa-756.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.756 of 1998 The State of Maharashtra. ) Appellant Vs 1. Sou. Shanti Sadanand Nagvekar, ) Occu. Household. ) 2. Shri Sadanand Ambaji Nagvekar, ) Occu. Pensioner. ) Both residing at Amrit Nivas, ) 3rd Road, Santacruz (East), ) Mumbai – 400 055. ) ( No.2 for self and as constituted ) Power of Attorney holder of No.1.) ) 3. Kanada Sangh, Pune. ) A Trust constituted under the ) Bombay Public Trust Act, ) C/o. Karnataka High School, ) Opp. Prabhat Road, Pune – 4. ) ( No.1 and 2 Orig. Claimants ) and No.3 Org. Opponent No.3) ).. Respondents -- Shri A.R. Patil, AGP for the Appellant-State. -- CORAM : A.S. OKA, J DATED : 15TH JUNE, 2011 ORAL JUDGEMENT : . Heard learned AGP for the appellant. The challenge is to the judgment and award dated 21st June, 1991 passed by the District ash 2 fa-756.98 Court in a Reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”). The Reference is made at the instance of Respondent Nos.1 and 2. 2. The land subject matter of acquisition is the land bearing Survey No.36 (Part), CTS No.139, admeasuring 5,550 sq. ft. from the Village Erandvane, Pune. The Notification under Section 126 (4) of the Maharashtra Regional Town Planning Act, 1966 ( hereinafter referred to as “the said Act of 1966”) read with Section 6 of the said Act was issued on 27th May, 1991 and was published on 6th June, 1991. The Award under Section 11 of the said Act was made on 29th August, 1992. The special Land Acquisition Officer offered market value at the rate of Rs.975/- per sq. meter. In the Award, it was stated that the area of the acquired land was 494.20 sq. meters. It must be noted here that in the Reference under Section 18 of the said Act even the area was disputed by the Claimants. However, in Paragraph 17 of the impugned judgment, the learned Trial Judge has observed that the Claimants accepted that the area of the acquired land was 494.20 sq. Meters. By the impugned judgment and award, the market value of the acquired land was fixed at Rs.1,710/- per sq. Meter. 3. Learned AGP appearing for the Appellant submitted that the Reference Court has relied upon only one agreement of sale which is at Exhibit – 28 and which is dated 7th March, 1992. He submitted that apart from the fact that a conveyance has not been executed on the basis of the said agreement, the same is in the nature of development agreement in respect of ash 3 fa-756.98 a very large area of 8820 sq. feet. He submitted that the only sale instance which is accepted by the Trial Court is the said sale instance at Exhibit -28 which cannot be comparable. He, therefore, submitted that no case was made out for grant of enhancement. He submitted that the reference ought to have been dismissed. 4. None appears for the Respondents. The Trial Court has accepted only one sale instance at Exhibit – 28 as an instance of a comparable sale. The original claimants examined various witnesses. The Claimant No.2 ( Respondent No.2) stepped into the witness box. He accepted that the correct area of the acquired land was 494.20 sq. meters. He pointed out that the land subject matter of agreement at Exhibit – 28 was situated diagonally opposite the acquired land. In the cross-examination, he stated that the acquired plot of land was at a distance of 1.5 furlongs from Karve Road. He stated that there is a slum on one side of the acquired land which is on the other side of the road. 5. The Purchaser under the Agreement at Exhibit – 28 was also examined as a witness. The said witness is Prakash Vasant Pathak, a partner of M/s. Om Developers. He produced original Agreement dated 7th March, 1992. The Agreement is in respect of Plot No.2, out of Survey No.36, Hissa No.1/8+9/2 bearing corresponding C.T.S. No. 139 Erandavne, Pune, admeasuring 8820 sq. feet. He stated that the price was fixed at the rate of Rs.170/- per sq. feet. He stated that there is adjoining slum area and, therefore, the price was fixed which is less than the market value. He stated ash 4 fa-756.98 that except the slum area, the entire locality is very good and there are bungalows in the locality. He stated that the land was in a residential locality. He also produced on record certificate under Section 269 UL of the Income Tax Act, 1961 issued by the appropriate Authority under the said Act, 1961. The appropriate Authority granted no objection for transfer of the said land at the price of Rs.14 lakhs. 6. In the examination-in-chief, he stated that the rates of smaller plots in the area were comparably on a higher side. He stated that the Vendor under the said agreement M/s. Avinash Bhosale & Co. has agreed to purchase the land from the original owner for the price of Rs.12 lakhs in the year 1991. He stated that the said land was under a reservation in the development plan of the City of Pune. In the cross-examination, he admitted that no sale deed was executed on the basis of the Agreement at Exhibit – 28 as the sale deed was to be executed in favour of the prospective purchasers of the plots after development of the property. 7. A copy of the Award under Section 11 of the said Act of 1894 is placed on record of the Reference. In the Award, it is noted that the plots under acquisition are situated in a purely residential locality known as “Pandurang Wadi” and residential bungalows have been constructed on majority of the plots in this lay out. It is stated that it is essentially a middle class and higher middle class locality. It is stated that the acquired land is situated abutting newly constructed Karnataka High School. It is stated that the acquired land has frontage of 16 meters to the road. The statements in ash 5 fa-756.98 the Award constitute the admissions of the State which could certainly be considered. 8. Thus, on the relevant date, the acquired land was in a very good residential locality and bungalows on plots in the area were already constructed. There was already a school abutting the said land. 9. As far as the Agreement at Exhibit – 28 is concerned, apart from the nature of transaction, the genuineness thereof cannot be disputed in view of the certificate under Section 269 UL under the Income Tax Act produced by the Claimants at Exhibit – 31. The property subject matter of the Agreement may have been taken for the purposes of development. The market value reflected from the said transaction is approximately Rs.170/- per sq. ft. The negative factor in respect of the land subject matter of Exhibit – 28 is a larger area of more than 8000 square feet and the slum area adjacent to the said land. The positive factors in respect of the acquired land are the smaller area and that there is a road which separates the slum area from the acquired land. Another positive factor is that there was a newly constructed school adjacent to the acquired land. The material date in the present case is 27th May, 1991 and one and half months from the said date, the transaction at Exhibit – 28 has been executed. Looking to the evidence on record and the fact that the land subject matter of Exhibit – 28 is located diagonally opposite to the acquired land in the same locality, the market value of the acquired land can be determined on the basis of the land subject matter of Exhibit – 28 which is Rs.1,710/- per sq. meter. Considering the negative and the positive factors ash 6 fa-756.98 discussed above, the market value fixed at the rate of Rs.1,710/- per sq. meter is reasonable. In fact, it is possible to say that the market value of the acquired land may be marginally more. The object of executing the Agreement at Exhibit – 28 may be of a development of the land by converting the same into a smaller lay out plots. Nevertheless, the agreement gives an indication of the market value. 10. In the circumstances, the market value fixed at the rate of Rs. 1,710/- is reasonable and cannot be faulted with. There cannot be any dispute regarding grant of statutory benefits. 11. Hence, there is no merit in the Appeal and the same is accordingly dismissed with no orders as to costs. ( A.S. OKA, J )