ash 1 fa-130.90 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.130 OF 1990 The State of Maharashtra. .. Applicant vs. Prabhakar Baburao Narwankar .. Respondent -- Shri A.R. Patil, AGP for the Applicant. Shri Y.P. Narvankar i/by Shri Amit Borkar for the Respondent. -- CORAM ; A.S. OKA, J DATED : 22ND FEBRUARY, 2011 ORAL JUDGMENT : . The submissions of the learned AGP appearing for the Appellants were heard on the earlier date. 2. The challenge in this Appeal is to the judgment and award dated 7th February, 1989 passed by the learned Additional District Judge on a reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act” ). 3. The notification is under Section 126(4) of the Maharashtra Regional Town Planning Act, 1966 read with Section 6 of the said Act was issued on 23rd January, 1975. An award was made by ash 2 fa-130.90 the Special Land Acquisition Officer. As the Respondents did not accept the compensation amount offered by the Special Land Acquisition Officer, the reference was made. The Reference Court came to the conclusion that the compensation of Rs.1,25,000/- ought to have been granted to the Respondents and accordingly enhancement in the sum of Rs.1,01,500/- together with statutory benefits was granted. 4. The learned AGP appearing for the Appellants submitted that this is a case where no evidence was adduced by the Respondent for discharging the burden on the Respondent to show that the amount offered by the award made under Section 11 of the said Act was inadequate. He submitted that that without there being any evidence, the Reference Court came to the conclusion that the market value of the acquired land was at the rate of Rs.100/- per sq. ft. He submitted that the compensation of Rs.10,000/- was erroneously granted on account of severance. Learned counsel appearing for the Respondent supported the impugned judgment and award. He submitted that in fact the Respondent had placed on record a valuation report of the Government approved valuer. He submitted that various documents were produced on record to substantiate the case made out by the Respondent. He has placed on record an affidavit of additional evidence of the Respondent dated 3rd February, 2011. he submitted that if this Court is inclined to set aside the award, the reference may be remanded to the Reference ash 3 fa-130.90 Court with permission to the Respondent to lead additional evidence. He has tendered the affidavit of the Respondent dated 18th February, 2011 which is marked “X” for identification. 5. I have given careful consideration to the submissions. As far as the scope of the proceedings under Section 18 of the said Act is concerned, the law is well settled. The claimant in the Reference under Section 18 of the said Act is in the position of a Plaintiff and he has to establish that the market value and the compensation offered by the award under Section 11 of the said Act was inadequate. Perusal of the judgment of the Reference Court shows that the evidence and the opinion of one Shri Jayprakash Diwakar Mane examined by the Respondent has been discarded by the Reference Court. The Reference Court has not relied upon any comparable sale instance. As far as compensation for shifting the place of residence and the profession is concerned, there is no reason recorded as to why a sum of Rs.10,000/- has been awarded. 6. The Respondent stepped into the witness box. He relied upon the document at Exhibit-17 which is a certified copy of the Index II of the Sale Deed dated 14th March, 1975. Another extract of Index II of another Sale Deed was produced by the Respondent at Exhibit-18. However, the Respondent has not stated anything as regards the nature ash 4 fa-130.90 of the lands subject matter of the said Sale Deeds. He did not state as to how the said lands were comparable to the acquired land. The Respondent examined Shri Jayprakash Diwakar Mane, the Consulting Civil Engineer. He has given opinion about the valuation of the building in existence. As far as the land value is concerned, he has stated that market value was Rs.75/- per sq. ft. However, in the report of the said Engineer and in his evidence, there is absolutely no basis set out for the opinion that the land value was Rs.75/- per sq. ft. The opinion of the expert is not based on any comparable sale instances. Therefore, the opinion of Shri Mane was not at all helpful to the Respondent. Hence, this is a case where practically no evidence was adduced by the Respondent to discharge the burden on him. 7. Learned counsel appearing for the Respondent has made a prayer for remand. In the affidavit dated 18th February, 2011 which is tendered today, the Respondent has stated thus:- “1. I am making this Affidavit for the Waiver of interest on Compensation amount under section 28 of the Land Acquisition Act 1894 ( hereinafter referred to as the “said Act”.) 2. I state that if the matter is remanded to the District Court, I hereby waive my right to claim interest, if any under section 28 of the said Act, from the date of award i.e. 7th February 1989.” ash 5 fa-130.90 8. The result of the undertaking in the said affidavit is that after remand, even if the Respondent succeeds in the reference, he will not be entitled to claim interest under Section 28 of the said Act from 8th February, 1989 onwards. In view of the undertaking incorporated in the said affidavit there will not be any prejudice to the Appellant/State if the order of remand is passed. 9. Hence, I pass the following order: (a) The undertakings incorporated in the affidavit dated 18th February, 2011 are accepted. (b) The impugned judgment and award dated 7th February, 1989 is quashed and set and the L.A.R. No. 55 of 1985 is remanded to the District Court at Kolhapur. (c) The learned Judge will permit the Respondent to lead additional evidence. It is obvious that even the Appellant is entitled to lead evidence in rebuttal. ash 6 fa-130.90 (e) However, in case of success after remand, in view of the undertaking, the Respondent will be disentitled to claim interest under Section 28 of the said Act from 8th February, 1989. He shall be entitled to interest under Section 28 of the said Act only till 7th February, 1989. (f) The First Appeal is partly allowed on above terms with no orders as to costs. (g) The Reference Court shall decide the Reference as afresh as expeditiously as possible and preferably before the end of October, 2011. ( A.S. OKA, J )