Ash 1 fa-795.94withxobjnst-23064.95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO. 795 OF 1994 WITH CROSS OBJECTION STAMP NO.23064 OF 1995 The State of Maharashtra ) (At the instance of) ) The Special Land Acquisition Officer, ) Ulhas Valley Project, Thane. ).. Appellant Vs Smt. Nandrani Amirchand Gupta, ) age about 63 years, Occupation Business, ) residing at Sakeria Building, ) Marine Driver, Bombay – 20. ).. Respondent -- Shri A.R. Patil, AGP for the Appellant. Shri Ajey Gadkari for the Respondent. -- CORAM : A.S. OKA, J DATED : 11TH NOVEMBER, 2011 ORAL JUDGMENT : . On 13th October, 2011 and on 20th October, 2011, this Appeal was called out for final hearing and submissions of the learned counsel appearing for the parties were heard fully. However, the judgment was not delivered as the learned Counsel appearing for the Respondent sought time to take instructions. Ash 2 fa-795.94withxobjnst-23064.95 2. The learned counsel appearing for the Respondent states that though he has written a letter to the Respondent, he has not responded. Today, the Appeal is kept for dictation of the judgment. 3. The challenge in the appeal is to the judgment and award passed by the Trial Court in a Reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”). The Notification under Section 4(1) of the said Act was published in the Government Gazette on 22nd October, 1963 in respect of the land bearing Survey No.440-A admeasuring 4 Gunthas, Survey No.440-B admeasuring 5 Gunthas and 12 Annas, and Survey No.404/2 admeasuring 2 Gunthas and 8 Annas which were held by the Respondent. The total area notified for acquisition was 1482 square yards. The Award under Section 11 of the said Act was made on 23rd September, 1986 and the market value was offered at the rate of Rs. 3.50 per square yard. As the said Award was not accepted, at the instance of the Respondent a reference under Section 18 of the said Act was made. By the impugned judgment and award, market value at the rate of Rs.12/- per square yards was fixed and the statutory benefits under Sections 23(1-A), 23(2) and 28 of the said Act were granted. 4. The submission of the learned AGP appearing for the Appellant is that the Reference Court has discarded the evidence of the Ash 3 fa-795.94withxobjnst-23064.95 sale instances produced by the Respondent but has proceeded to grant enhancement on the basis of certain awards made under Section 11 of the said Act. He pointed out that a reliance was placed by the Respondent on the Award made under Section 11 of the said Act in respect of a land at village Sanpada and the Reference Court rejected even the said evidence. He submitted that the enhancement in the market value has been granted only on the basis of the surmises and conjectures. 5. The learned counsel appearing for the Respondent submitted that while fixing the market value under Section 23 of the said Act, some guess work is always inherent. He pointed out that the market value granted by the Trial Court is on the basis of the location of the acquired land which was situated in the vicinity of the prominent industries like NOCIL, Union Carbide and Pfizer. He pointed out that the Railway line of Mumbai-Pune Route was touching the acquired lands and, therefore, the said lands had enormous potentiality for the industrial and commercial use. He submitted that the sale instances at Exhibits-26 and 27 certainly formed the basis for determination of the market value and the said Sale Deeds could not have been discarded. He submitted that even the Awards under Section 18 of the said Act relating to the village Sanpada could not have been discarded. He submitted that in fact on the basis of the evidence on record, the market Ash 4 fa-795.94withxobjnst-23064.95 value exceeding the rate of Rs.12/- per square yards ought to have been fixed. He submitted that the Appeal be dismissed and the Cross Objection be allowed. 6. I have considered the submissions. I have perused the record. In a Reference under Section 18 of the said Act, a claimant is in a position of the Plaintiff in a civil suit. Initial burden is on the Claimant to prove that the market value offered by the Award under Section 11 of the said Act was inadequate. For discharging the said burden, the son and the Constituted Attorney of the Respondent stepped into the witness box. He deposed regarding the location of the acquired lands with reference to Thane Belapur Road. He stated that the acquired land is at a distance of about 2 kms from Thane Railway Station and about 1 km from Kalwa Railway Station. He stated that a large number of factories like NOCIL, Union Carbide and Pfizer have been established in the vicinity of the acquired lands. He stated that the acquired lands were touching the Railway line. 7. It must be noted here that the Respondent relied upon the certified copies of the Sale Deeds dated 3rd July, 1962 and 8th July, 1962 which were at Exhibit-26 and 27. In the examination-in-chief, the son of the Respondent has not stated that the lands subject matter of the Sale Deeds were comparable with the acquired lands. In fact in the Ash 5 fa-795.94withxobjnst-23064.95 examination-in-chief, there is absolutely no reference to the lands subject matter of the Sale Deeds. In the cross-examination, the son of the Respondent admitted that he has not visited the lands subject matter of the sale Deeds at Exhibits- 26 and 27. The Respondent produced the certified copies of the two registered Sale Deeds and the same have been marked as exhibits. However, there is absolutely no evidence to show that the lands subject matter of the Sale Deeds were comparable to the acquired lands. As stated earlier, the witness examined has not uttered a word about the comparability of the sale deed lands with the acquired lands and in the cross-examination, he has admitted that he has not even seen the lands subject matter of the sale deeds and therefore, the Reference Court has rightly kept the Exhibits-26 and 27 out of consideration. Unless the Respondent had proved that the Sale Deeds related to the comparable lands, the same were of no help. 8. In Paragraph 6 of the judgment, the Reference Court has observed that the Respondent relied upon the Award made under Section 18 of the said Act by the Reference Court on 26th November, 1992 in relation to the land at village Sanpada. Apart from the fact that the Roznama shows that the said Award was not exhibited, again the Respondent has not adduced any evidence regarding the location of the land subject matter of the Reference and the comparability of the land Ash 6 fa-795.94withxobjnst-23064.95 with the acquired lands. In fact, there was no evidence adduced by the Respondent as regards the location of the land subject matter of the Reference in which the said Award was made. The learned Trial Judge has rightly observed that there is no evidence adduced by the son of the Respondent in respect of the said land under Reference. Thus, the Respondent could not produce any documentary evidence to show that the market value offered by the Land Acquisition Officer was inadequate. 9. In Paragraph 6 of the judgment, the learned Trial Judge has made a Reference to the sale instances considered by the Special Land Acquisition Officer in the Award under Section 11 of the said Act. The said sale instances were not produced and proved before the Reference Court. The Award under Section 11 of the said Act is merely an offer. Without production and proof of the said sale instances, the same ought not to have been considered by the Reference Court. Perusal of the Paragraph 7 of the judgment shows that again the Reference Court has made a reference to the sale instances quoted in the Award made under Section 11 of the said Act. Only by referring to the said sale instances, which were not produced and proved before the Reference Court, the learned Judge has recorded a finding that the market value deserves to be fixed at Rs.12/- per sq. yard. Not only that the Respondent did not discharge the burden on her that the market value Ash 7 fa-795.94withxobjnst-23064.95 offered under the Award under Section 11 of the said Act was inadequate, but this is a case of no evidence. 10. Therefore, the impugned Award cannot be sustained. Hence, I pass the following order: ORDER : (i) The First Appeal is allowed. The impugned Judgment and Award is quashed and set aside and the Land Acquisition Reference No.202 of 1987 stands dismissed with no order as to costs. (ii) The Cross Objection Stamp No.23064 of 1995 is dismissed with no orders as to costs. ( A.S. OKA, J )