{1} fa49997.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.499 OF 1997 1 The State of Maharashtra 2 Special Land Acquisition Officer, Upper Tapi Project, Hatnur, District Jalgaon. Appellants Versus Hari Genu Mahajan (since deceased) through L.Rs. 1 Smt.Anusayabai w/o Hari Mahajan, (died on 24.03.2003 leaving behind Respondents No.2 to 5 as L.Rs.) 2 Shriram Hari Mahajan, age: 53 years, Occ: Agril., 3 Laxman Hari Mahajan, (died) through L.Rs.: 3-A Smt.Alka wd/o Laxman Mahajan, age: 52 years, Occ: Household, 3-B Chetan Laxman Mahajan, age: 22 years, Occ: Education; 3-C Kalpesh Laxman Mahajan, age: 19 years, Occ: Education; All R/o 3-A to 3-C, 103, `Hari Laxmi Krupa’, Opposite Swami Vivekanand School, Ramchandranagar, Dombivali (East), Pin-421 201. 4 Smt.Mirabai w/o Madhukar Patil, {2} fa49997.odt age: 58 years, Occ: Household, R/o Dudhi Gorale, Tq.Burhanpur, District Khandawa (M.P.). 5 Sau. Mandabai Shriram Patil, age: 44 years, Occ: Nil, R/o Ainpur, Tq. Raver, District Jalgaon. Respondents Mr.K.S.Patil, A.G.P. for appellants. Mr.V.T.Choudhary, advocate for Respondents. WITH CROSS OBJECTION NO.1171 OF 2003 Hari Genu Mahajan (since deceased) through L.Rs. 1 Smt.Anusayabai w/o Hari Mahajan, (died on 24.03.2003 leaving behind Respondents No.2 to 5 as L.Rs.) 2 Shriram Hari Mahajan, age: 53 years, Occ: Agril., 3 Laxman Hari Mahajan, (died) through L.Rs.: 3-A Smt.Alka wd/o Laxman Mahajan, age: 52 years, Occ: Household, 3-B Chetan Laxman Mahajan, age: 22 years, Occ: Education; 3-C Kalpesh Laxman Mahajan, age: 19 years, Occ: Education; All R/o 3-A to 3-C, 103, {3} fa49997.odt `Hari Laxmi Krupa’, Opposite Swami Vivekanand School, Ramchandranagar, Dombivali (East), Pin-421 201. 4 Smt.Mirabai w/o Madhukar Patil, age: 58 years, Occ: Household, R/o Dudhi Gorale, Tq.Burhanpur, District Khandawa (M.P.). 5 Sau. Mandabai Shriram Patil, age: 44 years, Occ: Nil, R/o Ainpur, Tq. Raver, District Jalgaon. Applicants Versus 1 The State of Maharashtra 2 Special Land Acquisition Officer, Upper Tapi Project, Hatnur, District Jalgaon. Respondents Mr. K.S.Patil, A.G.P. for appellants. Mr. V.T.Choudhary, advocate for respondents. CORAM : R.M.BORDE, J. Reserved on : 28 th July, 2011 Pronounced on: 12 th August, 2011. ORAL JUDGMENT: 1 This is an appeal preferred by the State taking exception to the judgment and award dated 13th October 1995, passed by Joint Civil Judge, Senior Division, Jalgaon in Land Acquisition Reference No. 54/1991. {4} fa49997.odt 2 Claimants / Respondents in the First Appeal are also claiming enhancement of amount of compensation in respect of acquired plots as well as structures. The Cross Objection tendered by the claimants is also required to be considered along with the First Appeal. 3 The house properties belonging to the claimants along with house properties of different villagers of village Nimbol were acquired by the Government for submergence of Upper Tapi Project, Hatnur, District Jalgaon. The notification under Section 4 of the Land Acquisition Act was issued on 12.10.1983 and it was served on the claimants on 15.10.1983. The Land Acquisition Officer, after following the procedure prescribed under Land Acquisition Act, passed an award and offered compensation @ Rs.9/- per square meter in respect of plot area and also offered compensation in respect of structures at the rate recommended by the Expert Valuer. So far as claimants is concerned, in all 17 plots and four houses belonging to the claimants, were acquired for the project. The total plot area acquired is about 6192.2 square meters, whereas, four houses were acquired bearing numbers 118, 119, 123 and 130, totally admeasuring about 321 square meters. 4 The claimants, being dissatisfied with the award passed by the Land Acquisition Officer, tendered an application seeking reference of the matter to the Civil Court. The Reference Application was numbered as L.A.R. No.54 of 1991 and came to be heard and disposed of by the Joint Civil Judge, Senior Division, Jalgaon. The Reference Court awarded market value @ Rs.151/- per square meter for the open plot area, whereas, prescribed market value for structures, as recommended by the expert valuer. The State Government has challenged the {5} fa49997.odt judgment and award passed by the Reference Court in the instant First Appeal, whereas, the claimants have also presented a Cross-Objection. 5 The claimants contend that the adjoining properties in the village came to be acquired for the same project. The adjoining owners of the properties, by name Prabhakar Patil presented L.A.R. No.2/1991, Ramesh Patel and others presented L.A.R. No.3/1991 and Mohan Patil and others presented L.A.R. No.4/1991. All these Land Acquisition References were decided by the Reference Court and amount of compensation was awarded in respect of open plot @ Rs.225/- per square meter, whereas, the Reference Court awarded valuation for the structures @ Rs.1200/- per square meters. There were appeals presented by the claimants as well as the State Government raising exception to the judgment and award passed by the Reference Court. The State Government preferred appeals, which were numbered as First Appeal Nos.133/1995 and 134/1995, whereas, the claimants, in aforesaid matters, preferred Appeals to this Court, bearing F.A. Nos.338/95, 339/95 and 340/95. 6 All the appeals were heard and disposed of by the Division Bench of this Court (Coram: B.B.Vagyani & N.H.Patil, JJ.) on 23.09.2003. The Division Bench of this Court allowed the appeals presented by the State partly and dismissed the appeals presented by the claimants. The valuation of the open plot, arrived at by the Reference Court @ Rs.225/- per square meter, has been confirmed, whereas, enhancement in the amount of compensation, awarded by the Reference Court in respect of structures was set aside. The judgment and decree passed by Division Bench of this Court was subject matter of challenge {6} fa49997.odt in Civil Appeals presented to the Apex Court. The appeals were numbered as Civil Appeal Nos.2817 and 2818 of 2005 with Civil Appeal Nos.2819 and 2821 of 2005. The appeals were presented by the original claimants. 7 While disposing of the appeals, the Apex Court confirmed valuation of the open plots and observed that the value prescribed @ Rs. 225/- per square meter is proper and plea for increase in the compensation so far as open plots is concerned, came to be rejected. Thus, the Apex Court has concluded that value of the open plot determined by the Reference Court @ Rs.225/- per square meter is proper and finding, in that regard, has attained finality. 8 So far as value of structures is concerned, the Apex Court has prescribed value of the structures @ Rs.1700/- per square meter. It is observed by the Apex Court, in paragraphs 12 and 13 of the judgment, as below: “12 Therefore, the cost of construction, which would be admittedly lower in 1983 than in 1991, must also be juxtaposed with the depreciation that would have accrued to the structures owing to wear and tear over a period of 8 years. In the year 1991, the cost of construction of residential building was 2800 per square meter for the ground floor and 2200 per square meter for the second and third floors. We are of the considered opinion that a deduction of 60 per cent (approximate) from the said valuation of the cost of construction in 1991 would be appropriate, and accordingly arrive at a compensation of 1700 per square meter for the structure. Our decision to deduct the said {7} fa49997.odt percentage of 60% is based on the Building Cost Index between 1983 and 1991 published by the Central Public Works Department, which reflects the rise in cost of construction over the said period of time. 13 Therefore, we allow these appeals partly to the extent of the valuation fixed with regard to the compensation payable in respect of the structure which was acquired under the notification for acquisition raising it from Rs.1200 per square meter to Rs.1700 per square meter. We, however, reject the prayer for increase in the amount of compensation so far as open space is concerned. It is needless to point out here that the respondents shall also be entitled to the statutory benefits as provided for under Section 23(1), 28 and 34 of the Act for which the decision rendered in the case of Sunder Vs. Union of India, reported in (2001) 7 SCC 211 which was later affirmed and elaborated in the case of Gurpreet Singh Vs. Union of India, reported in (2006) 8 SCC 457, would be applicable. We leave the parties to bear their own costs. 9 Considering the analogy adopted by Supreme Court, claimants in the instant appeals are also entitled to claim parity in respect of rates so far as open plot and constructed structures is concerned. The claimants shall be entitled to claim compensation @ Rs. 225/- per square meter towards value of open plots and @ Rs.1700/- per square meter towards value of the structures. In view of the decision rendered by the Apex Court, in the judgment cited supra, appeal presented by the State, stands dismissed and the Cross Objection presented by the claimants is allowed. The claimants shall be entitled to claim compensation for acquired plots @ Rs.225/- per square meter. The {8} fa49997.odt Reference Court has awarded compensation @ Rs.151/- per square meter. Thus, claimants would be entitled to claim difference of Rs.74/- per square meter in respect of open plots. The claimants also would be entitled to claim compensation @ Rs.1700/- per square meter in respect of structures admeasuring 321 square meters. The claimants also would be entitled to claim solatium and interest @ 9% p.a. for the first year i.e. from 18.10.1986 till 17.10.1987 and @ 15% p.a. for the subsequent years on the enhanced amount of compensation. The claimants shall pay deficit court fees, if any, which shall be a condition precedent for recovery of amount. In the facts and circumstances of this case, there shall be no order as to costs. Pending Civil Applications do not survive and stand disposed of. R.M.BORDE JUDGE adb/49997