-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1089 OF 1991 FIRST APPEAL NO.1089 OF 1991 FIRST APPEAL NO.1089 OF 1991 WITH WITH WITH CROSS OBJECTION STAMP NO.1002 OF 1992 CROSS OBJECTION STAMP NO.1002 OF 1992 CROSS OBJECTION STAMP NO.1002 OF 1992 IN IN IN L.A.R.No.73 of 1988 L.A.R.No.73 of 1988 L.A.R.No.73 of 1988 The State of Maharashtra, .. Appellants. Vs Shri Shamsher Mohammad Golandas deceased through his L.Rs:- (a) Abu Talib Shamsher Golandas and ors. .. Respondents. Mrs G.P.Mulekar, AGP for the appellants. Mr R.D.Suryawanshi, for the respondents. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE : 11th /09/2008 DATE : 11th /09/2008 DATE : 11th /09/2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: (Per D.B.Bhosale,J.) (Per D.B.Bhosale,J.) (Per D.B.Bhosale,J.) 1. The State of Maharashtra, being aggrieved by the Judgment and order dated 23.10.1990 in Land Reference No.73 of 1988 passed by the IInd Addl.District Judge, Kolhapur, has preferred this First Appeal. By the impugned Judgment, the Land Reference Court has allowed the Reference filed by the respondents and was pleased to enhance the compensation to the tune of Rs.9,66,086.84 inclusive of compensation already awarded in the Award with interest at the rate of 9% per annum from 12.2.1987, -2- the date of taking possession, till 11.2.1988, the date of completion of the first year from the date of taking possession. The appellants were also directed to pay interest at the rate of 15% per annum from 12.2.1988, the date of completion of the first year from the date of taking possession till the date of payment. After the Appeal was admitted, the cross-objections were filed by the original claimants seeking further enhancement of the compensation. 2. Basic facts of the matter are not in dispute. The respondents’ land had been acquired for the Maharashtra State Electricity Board for its Sub-Station at Kurundwad. The acquired land is from Gat No.242, situate at Kurundwad admeasuring 1 Hector 86 Ares. Gat no.242, owned by the respondents, admeasures 3 Hectors 68 Ares. This land is located at Southern end of the Kurundwad city. Admittedly, it is away from Kurundwad Gaothan. It is situated near Dalla College of Kurundwad and abutting to the existing MSEB Sub Station. Surrounding this land, there exist police quarters, residential developments, residential quarters of MSEB etc. There is no dispute that the land under acquisition has non-agricultural potentialities. 3. The date of publication of notification under -3- section 126 of the Maharashtra Regional and Town Planning Act and under section 6 of the Land Acquisition Act is 5.1.1985. The relevant date for fixing the market value is the date of publication of the notification which in the present case is 24.1.1985. It appears that the sale instance relied upon by the Land Acquisition Officer was dated 5.1.1985 of the plots in Gat no.217 situated in the vicinity of the land under acquisition. The plots were sold at the rate of 1595.15 per Are. In view thereof, the Land Acquisition Officer (for short, "LAO") awarded Rs.1600/- per Are as market rate for the land under acquisition. After deducting 20 percent of the land for road side and open space and also towards development costs to the tune of Rs.68,076/-, the LAO fixed the rate to the tune of Rs.728.41 per Are. Being aggrieved by the Award, the claimants filed the Reference Application under section 18 of the Land Acquisition Act seeking enhancement of the compensation awarded by the Land Acquisition Officer. 4. In the Reference, the learned Second Additional Sessions Judge, Kolhapur enhanced the compensation to the tune of Rs.4000/- per Are relying upon the two sale instances at Exhibits 10 and 11 placed on record by the claimants and awarded Rs.1,51,644.60 towards injurious affection and severance. The brake up of the compensation -4- awarded by the Land Reference Court reads thus:- "Total area under acquisition 175.15 Ares Total area under acquisition The portion kept reserve for open site and roads etc. 35.00 Ares Market value at the rate of Rs.4000/- per Are 5,60,600.00 Minus development costs 25% 1,40,150.00 Net cost of the land Rs. 4,20,450.00 Cost of structure Rs. 59,032.50 Cost of trees Rs. 26,000.00 _____________________ Rs. 5,05,482.50 Solatium 30% Rs. 1,51,644.06 Additional compensation under section 23(1A) on Rs.5,05,482/- for two years at the rate of 12% p.a. from 24.1.85 the date of publication of notification till the date of Award 23.1.1987 Rs. 1,21,315.68 Total compensation Rs. 7,78,442.24 Compensation of well Rs. 30,000.00 Compensation for pipeline etc. Rs. 6,000.00 30% injurious affection and severance Rs. 1,51,644.60 _____________________ Net total compensation Rs. 9,66,086.84" 5. Mrs Mulekar, learned Addl.Government Pleader, -5- though initially made a feeble attempt to challenge the judgment and order of the Reference Court on the ground of limitation gave up that contention and made her submissions on merits. She took us through the entire judgment and the evidence and submitted that the Reference Court committed grave error of law in relying upon the two sale instances of the lands within the Goathan of the Kurunwad town for fixing almost double the amount of those sale instances which had taken place just three years prior to the relevant date of the notification of the land under acquisition, which admittedly are for away from Goathan and were not falling within the jurisdiction of the municipal limits of Kurundwad Municipal Council. She submitted that by no stretch of imagination one could say that the land under acquisition could have fetched double the amount of the sale instances relied upon by the claimants within the span of three years of the land, which was admittedly not within the limits of the Municipal Council. She then submitted that the amount of compensation fixed towards injurious affection and severance is also on the higher side. She submitted that although part of Gat no.242 was acquired the remaining portion of the land still had nonagricultural potential and severance did not affect the value of the land. On the other hand, Mr Suryawanshi, learned counsel for the respondents, submitted that the Reference Court has -6- rightly taken into consideration the rising prices of the lands within and outside the municipal limits of the Kurundwad Municipal Council, however, has wrongly fixed the value at the rate of Rs.4000/- per Are. He submitted that the evidence of the two witnesses examined by the claimants, namely Abu Talib and Surendra Upadhaya, P.Ws 1 and 2 respectively, is sufficient to hold that the value of the land is much more than what has been fixed by the Land Reference Court. 6. We have perused the impugned award and the reasoning in support of the market value fixed by the Reference Court at Rs.4000/- per Are and we do not find ourselves in agreement with the said market value. The Land Acquisition Officer had relied upon the sales effected on 5/1/1985 in respect of Plot nos.2, 3 and 6 from the very same gat number i.e. Gat No.217 and on the basis of these transactions the Land Acquisition Officer fixed market price at Rs.1600/- per Are. The Reference Court held that these transactions could not be relied upon because they were made on the same day and on account of the monetary difficulties. The Reference Court instead thought it to refer to the sale instances at Exhibits 10 and 11 dated 11/10/1982 and 8/10/1982 respectively. As per these sale instances the market price varied from Rs.1600/- to Rs.2000/- per Are or in any case it was less -7- than Rs.2000/- per Are. The Reference Court thought it fit, based on these two sale transactions, to double the market price at Rs.4000/- per Are within a period of three years. We do not agree with this reasoning and there is no justification to believe that the market price would double in a period of three years, despite the fact that the land was within the municipal limits or with a strong NA potential on account of individual bungalows having come up in the neighbouring area. Undoubtedly in three years’ time there would be certainly rise in the market price and in some cases such rise could vary from 10 to 20 per cent per annum. It is well established that while fixing the market value of the land some guess-work has to be done and keeping this principle in mind, we are of the considered opinion to give 50 per cent rise and fix the market price at Rs.3000/- per Are. 7. Insofar as the injurious affection and severance is concerned, the reference Court has rightly taken into consideration that after acquisition of the land to the extent of 1 Hector and 82 Ares the remaining land out of the said Gat number lost its frontage. It has also taken into consideration that the land was well irrigated and the well was in the acquired portion of the land which caused permanent loss to the landlord. To evaluate the loss to the injurious affection and severance of the -8- property, there are several factors which the reference Court need to take into consideration and in our opinion the land reference Court in the present case did take them into consideration in proper perspective and has rightly granted 30% compensation to compensate the severance and injurious affection. We do not find any reason to interfere with this finding. Insofar as the compensation awarded towards the well, pipe line, trees and structure is concerned, we do not find any reason to interfere with the findings of the Land Reference Court, apart from the fact that the compensation fixed towards these heads was not seriously challenged. 8. We have noted that the Reference Court has denied the payment of solatium at 30 per cent as well as additional compensation under Section 23(1A) on the amount of compensation for well as well as pipeline etc. i.e. Rs.30,000/- and Rs.6000/- respectively. To this extent i.e. in terms of payment of solatium and the additional compensation under Section 23(1A) of the Act, the cross-objections filed by the claimants succeed partly. 9. In the premises the appeal filed by the State and the cross-objections filed by the claimants are partly allowed. Market value of the land is fixed at Rs.3000/- per Are instead of Rs.4000/- per Are fixed by the -9- Reference Court. The other compensation amounts viz. compensation for well, compensation for the pipeline etc. and 30 per cent injurious affection and severance are hereby confirmed. The Land Acquisition Officer is directed to recalculate the compensation amount keeping in mind that the claimants will be entitled for solatium, additional compensation under Section 23(1A) as well as under Section 28 of the Act on the total amount of compensation. The difference in payment, if any, on such recalculation shall be made as expeditiously as possible and preferably within a period of two months from today. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) -10- HIGH COURT HIGH COURT HIGH COURT APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE FIRST APPEAL NO.1089 OF 1991 FIRST APPEAL NO.1089 OF 1991 FIRST APPEAL NO.1089 OF 1991 WITH WITH WITH CROSS OBJECTION STAMP NO.1002 OF 1992 CROSS OBJECTION STAMP NO.1002 OF 1992 CROSS OBJECTION STAMP NO.1002 OF 1992 IN IN IN L.A.R.No.73 of 1988 L.A.R.No.73 of 1988 L.A.R.No.73 of 1988 Date of Judgment: Date of Judgment: Date of Judgment: TH SEPTEMBER,2008. TH SEPTEMBER,2008. TH SEPTEMBER,2008. For approval and signature For approval and signature For approval and signature THE HON’BLE MR.JUSTICE B.H.MARLAPALLE. THE HON’BLE MR.JUSTICE B.H.MARLAPALLE. THE HON’BLE MR.JUSTICE B.H.MARLAPALLE. THE HON’BLE MR.JUSTICE D.B.BHOSALE. THE HON’BLE MR.JUSTICE D.B.BHOSALE. THE HON’BLE MR.JUSTICE D.B.BHOSALE. 1. Whether Reporters of Local Papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges? 6. Whether the case involves an important question of law and whether a copy of the judgment should be sent to Nagpur Aurangabad or Goa offices?