1 fa816-87, 620-91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO. 816 OF 1987 The State of Maharasthra ] (Through the Special Land ] .. Appellant Acquisition Officer, No.1, Sangli. ] (Orig. Opponent) V/s. 1. Miraj Municipality, Miraj ] Trustees of Udgaonves Kabrastan, ] .. Respondents Miraj. ] (Orig. Appellant) ] 2. Trustees of Udgaonves Kabrastan, ] Miraj. ] ALONGWITH FIRST APPEAL NO. 620 OF 1991 1. Udgaon Vesh Kabrastan & Takia ] Miraj, Through its Trustees ] ] 1-A) Wahidali Mohamedali Bagwan, ] Chairman of the Trust, ] 2010, Guruwar Peth, ] Near Police Station, ] Miraj, District – Sangli. ] ] 1-B) Abdul Ajij Shakoor Katchi ] .. Applicants Advocate, Resident of Mangalwar ] (Orig. Claimants) Peth, Miraj, District – Sangli. ] ] Both Trustees are appointed ] after the Award. ] 2 fa816-87, 620-91 V/s. 1. The Collector, Sangli. ] ] .. Respondents 2. Maharashtra State Road ] (Orig. Opponents) Transport Corporation, Sangli. ] .... Mr. A. R. Patil, A.G.P. for the Appellant in F. A. No. 816 of 1987. Mr. Umesh Mankapure, Advocate for Appellant in F. A.No. 620 of 1991. Mr. G.S.Hegde for Respondent No.2 in F.A. No.620 of 1991. Mr. A. R. Patil, A.G.P. for Respondent No.1 in F.A. No. 620 of 1991. .... CORAM : A. S. OKA, J. DATE : JANUARY 21, 2011. ORAL JUDGMENT :- First Appeal 816 of 1987 is directed against the Judgment and Award dated 30th April, 1983 in a Reference under Section 30 of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”). An area of 29,000 square feet out of survey No. 703 in Taluka Miraj, District Satara was acquired under the provisions of the said Act. In Acquisition proceedings, the trustees of a public trust (second respondent in First Appeal No. 816 of 1987) claimed ownership over the acquired land. There was also a claim made 3 fa816-87, 620-91 by the first respondent Municipal Council of ownership over the acquired land. A Reference was made under Section 30 of the said Act to the Civil Court. By impugned Judgment and Award dated 30th April, 1983, the Reference was answered by holding that the suit property was belonging to the trustees of Udgaonves Kabarstan, Miraj, a public trust (second respondent in First Appeal No.816 of 1987 and the appellant in First Appeal No.620 of 1991). It was held that compensation was payable to the trustees. 2. First Appeal No. 620 of 1981 arises out of the Judgment and Award made in a Reference under Section 18 of the said Act made at the instance of the trustees. The claim was for enhancing the compensation. By the impugned Judgment and Award, enhancement of a sum of Rs.30,000/- was granted to the trustees. While granting the compensation, deduction of Rs. 41,000/- was made by the Special Land Acquisition Officer on account of expenses of filling up of the acquired land. The Reference Court found that the said amount ought to have been Rs.11,000/- instead of Rs. 41,000/- and that is why enhancement of Rs. 30,000/- was granted. However, the Reference Court maintained the market value of Rs.20/- per square meter fixed by the Special 4 fa816-87, 620-91 Land Acquisition Officer and rejected the claim made by the Trustees at the rate of Rs.70/- per square meter. 3. In support of the First Appeal No. 816 of 1987, the learned AGP appearing for the Appellant submitted that in fact no evidence of title was adduced by the trustees. He pointed out that the source of title has not been established by the trustees and in fact in the year 1961, there was no entry of Kabarstan in the revenue record, but, there was an entry of Gorsthan. He submitted that merely because the acquired land was held as a trust property by the Charity Commissioner, the finding of the Charity Commissioner was not conclusive as regards title. He submitted that a mere revenue entry cannot determine the issue of title in favour of the Trust. He, therefore, submitted that in absence of any evidence, there was no reason to uphold the title of the trust. The learned counsel appearing for the trust supported the impugned Judgment and Award. 4. As regards the Appeal No. 620 of 1991, the learned counsel appearing for the trustees submitted that a group of References under Section 18 of the said Act dealing with the lands acquired 5 fa816-87, 620-91 under the same notification was decided alongwith the Reference made at the instance of the trustee. He pointed out that in other cases, market value has been determined at Rs.45/- to Rs.50/- per square meter. He submitted that enhancement of market value was not granted on the ground that the land was a burial ground and that there is a pond therein. He submitted that a deduction is already made in respect of expenses on filling of the pond, and, therefore, there is no ground to deny the market value granted to similarly situated lands. The learned AGP appearing for the State Government supported the impugned Award. The learned counsel appearing for the second defendant (acquired body) submitted that the appellants trustees have no right or title in respect of the said acquired land and in fact they were not entitled to any compensation as the land vests in the State Government. 5. I have carefully considered the submissions. As far as the Reference under Section 30 of the said Act is concerned, the Reference Court found that erstwhile Miraj State merged in the year 1949, and, therefore, the record of rights were not prepared. Till 1960-61, the record of rights showed that the acquired land was Gorsthan. It appears that in the proceedings under Bombay 6 fa816-87, 620-91 Public Trusts Act, 1950 (hereinafter referred to as the “BPT Act”), the Assistant Charity Commissioner while registering the said trust found that the land bearing survey No.703 was a trust property of the said trust. A mutation entry was made on 9th February, 1961, by which entry of Kabarstan was made. The names of the trustee were also mutated in revenue record. Thereafter, consistently, the acquired land was shown as Kabarstan vesting in the trustees in the revenue record. On the other hand, there is no documentary evidence adduced by the Municipal Council which had set up a title in itself. Considering the effect of the order passed by the Assistant Charity Commissioner and the consistent revenue entries from 1961 onwards, the superior title of the trustees has been rightly upheld by the trial Court. There is no reason to interfere with the said finding. The learned counsel appearing for the acquired body in the companion Appeal under Section 18 argued that the acquired land is vesting in the State Government. However, it must be noted that the acquiring body was a party to the Reference under Section 18 made at the instance of the trust and the Award of enhancement made therein has not been challenged by the acquiring body. Hence, it is not open for the acquiring body now to dispute the title of the trustees. 7 fa816-87, 620-91 6. Now turning to the First Appeal No. 620 of 1991, it must be noted that even according to the case of the trustees, the acquired land was consistently shown as Kabarstan in the revenue record from the year 1961. The impugned Judgment records that in case of other References under Section 18, the market value has been determined at the rates of Rs. 40/-, Rs.45/- and Rs.50/- per square meter respectively in respect of developed plots. 7. Comparison method was invoked by the trustees. What is relevant is what a bonafide and genuine buyer would have offered as a price. One material aspect which has to be considered is that the acquired land was being used as Muslim burial ground. This is certainly a negative factor which will be considered by any prudent and bonafide buyer while giving an offer. Apart from the fact that it was shown as a burial ground, there was a big pond in the acquired land where water used to get stagnant throughout the year. Moreover, there were three public latrines constructed by the Miraj Municipal Council on the said land. These are very relevant factors for determining the market value. In case of developed lands, market value was fixed at the rates of Rs.40/-, 8 fa816-87, 620-91 Rs.45/- and Rs.50/- per square meter. Considering the aforesaid admitted negative factors, the learned trial Judge found that the market value offered by the Special Land Acquisition Officer at the rate of Rs. 20/- per square meter was a proper market value. 8. There does not seem to be any dispute that there was a pond on the acquired land. Deduction of Rs.11,000/- has been made on the account of the expenses of filling up the pond. The said amount is reasonable. Hence, there is no merit in the First Appeal No. 620 of 1991. 9. Hence, I pass the following order : :: O R D E R :: i. First Appeal No. 816 of 1987 is dismissed with no order as to costs. ii. First Appeal No. 620 of 1991 is dismissed with no order as to costs. JUDGE