1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION LAND ACQUISITION REFERENCE NO.1 OF 1996 IN LAQ/SR-513-B Special Land Acquisition Officer (2) Mumbai Suburban District And Veekaylal Investment Company Pvt Ltd. ..Claimant And The Divisional Controller, Palghar Division .. Acquiring Body Mr. Rajiv Mane AGAP for SLAO. Mr. C. M. Korde, Sr. Counsel with Mr.P.Beri i/b.Beri & Co. for Claimants. Mr.G.S.Hegde with Mr.C.M.Lokesh for Acquiring Body. CORAM : S. J. VAZIFDAR, J. DATED : 26TH & 27TH FEBRUARY, 2008 ORAL JUDGMENT : 1. This Land Acquisition Reference is filed under Section 18 of the Land Acquisition Act for enhancement of the compensation awarded by the Special Land Acquisition Officer (SLAO). 2 2(A). By a notification dated 26.7.1989 the Commissioner, Konkan Division, notified the land belonging to the Claimant for acquisition for the purpose of a bus deport, bus station, staff quarters and other allied works of the acquiring body, Maharashtra State Road Transport Corporation (MSRTC). The notification was issued under Section 6 of the Land Acquisition Act read with Section 126(4) of the Maharashtra Regional & Town Planning Act, 1966. The notification was published in the Government Gazette dated 3.8.1989. 3.8.1989 is therefore the relevant date for the purpose of acquisition and for the purpose of deciding the above reference. (B). The notification was common for the lands which are the subject matter of the present reference as well as in respect of other adjoining plots of lands. (C). The Acquiring Body/MSRTC requested that Section 129 (1) of the Maharashra Regional & Town Planning Act, 1966 be applied to the Notification as it needed possession of the land urgently. The application was granted and the SLAO was authorised by the said Notification itself to enter upon and take possession of the land under Section 129(1) of the MRTP Act after giving notice of fifteen days. Possession of the Claimant's land 3 was accordingly taken on 30.6.1990. These facts are mentioned in the award itself. 3(A). The notification was common for the lands which are the subject matter of the present reference as well as in respect of other adjoining plots of lands. The SLAO awarded compensation at the rate of Rs.375/- per sq. mtr. to the Claimant on the basis that the land owned by it had access. In respect of lands which did not have an access road, he awarded compensation at the rate of Rs.125/- per sq. mtr. The SLAO accordingly awarded an amount of Rs.6,48,582.44 in respect of the lands which are the subject matter of the present reference inclusive of solatium and additional amount. The amount was ordered to be deposited in Court under Section 30 of the Land Acquisition Act. It is pertinent to note that an aggregate sum of Rs.15,000/- was awarded as shifting charges at Rs.200/- per hutment/tenement on the said land. Annexure `A' to the award contained details of the lands, the names of the residents of the hutments, the area in the possession of each hutment dweller and the amount payable to each of them. A uniform amount of Rs.200/- was payable to each hutment dweller. (B). By an order dated 23.3.1992, on the Claimant's Application dated 9.12.1991, the SLAO accepted the Claimant's 4 stand that it had purchased the said land pursuant to a sale held by the Court Receiver in 1962 and sanctioned by an order of this Court dated 28.2.1963. The SLAO therefore corrected the award and ordered the payment of the entire compensation in the sum of Rs.7,08,618/- to the Claimant. The stipulation in the award for depositing the amount in Court under Section 30 of the Land Acquisition Act was thereby modified. 4. The Claimant made an application dated 25.11.1991 for a reference under Section 18 of the Land Acquisition Act to the SLAO. The Claimant claimed additional compensation on account of the market value of the land in the sum of Rs.14,30,662.50. The Claimant also claimed damages of Rs.68,79,900/-. Mr. Korde confined his reliefs to the claim for enhancement only on account of the market value of the land and did not press the claim for damages. 5. Accordingly, the present reference was filed by the SLAO on 8.1.1996. 6. Evidence was recorded on commission by Shri B.G. Pawar, a Retired District Judge. The Plaintiff examined its Director one Haresh Khiamal Nanwani (CW-1) and one Hitendra Kisan Mehta (CW-2), an architect and valuer. The Acquiring Body 5 examined one Uday Shripat Nadkarni (ABW), an architect and valuer. Affidavits in lieu of examination-in-chief were filed by the three witnesses. 7. Haresh Khiamal Nanwani (CW-1) in his affidavit in lieu of examination-in-chief stated that the Claimant is a closely held company wherein the entire share capital is held by his mother and himself; that he had been a Director of the Claimant since 1975 and had since then been looking after its management and affairs and was conversant with the facts and details relating to the acquisition proceedings; that his family had been in the construction business since the past thirty years; that he had himself been involved with the construction business from the age of nineteen i.e. from 1974-75 and that he is associated with several firms in the construction business. In relation to the present proceedings, he has deposed to the following relevant aspects :- 1) He used to visit the said land on a number of occasions and was personally familiar with the condition thereof at the relevant time i.e. 3.8.1989 and even before and after that time. 2) The land had a direct frontage on a 13.4 mtr. wide D.P. Road, which was in existence prior to the date of acquisition i.e. 3.8.1989. 6 3) The land was covered by hutments the aggregate area whereof was approximately 600 sq. mtrs. 4) That from his experience, he could say that the cost of buying each and every structure/hutment would have been about Rs.330/- per sq. mtr. aggregating approximately to Rs.1,98,000/-. 5) The acquired land was levelled and did not require any filling and cutting. 8. CW-1's evidence regarding his involvement in and familiarity with the construction business has not been seriously or effectively challenged in cross-examination. I am inclined therefore to accept his evidence in this regard. 9. Nor has the cross-examination disproved CW-1's evidence regarding his familiarity with the said land at the relevant time i.e. 3.8.1989 and even before that date and thereafter. I am therefore inclined to accept his evidence in this regard as well. 10. CW-1's evidence regarding the land having a direct frontage on a 13.4 mtr. wide D.P. Rad, was tested in cross- examination. (A). In Question No.4 he was asked whether he knew when the road was constructed. He answered in the negative regarding his knowledge of the exact date of construction but stated that it 7 was in existence prior to the date of acquisition. He disagreed with the case put to him in Question No.11 that the road was not in existence prior to August, 1989. (B). It is important to note Question No.12 and the answer thereto, which read as under :- “Q.12. I put it to you that only Kutcha way was in existence in August 1989 at the site do you agree ? Ans. I do not agree." 11. Thus, the case put by the Acquiring Body was that there was at least a kutcha road in existence at the relevant time. In other words, it is important to note that it is not even the case of the Acquiring Body that there was no access to the said land in August, 1989. 12. Moreover, the award proceeds on the basis that the access road was in existence and it was for this reason that an amount of Rs.375/- per sq. mtr. had been awarded to the Claimant. The award is a part of the valuation report prepared by CW-2 which has been tendered and marked in evidence. The valuation report is marked in evidence as Exhibit "C-4" Collectively. The award itself is also marked in evidence separately as Exhibit "C-5". In any event, there is no evidence to the contrary 8 produced by the Acquiring Body. 13. There was an attempt on the part of the witness produced by the Acquiring Body (ABW) to deny the existence of the access road while being cross-examined. 14. In his valuation report itself, ABW admits that the land abuts the DP Road on the Southern side. Thus, the fact that there was a DP Road, is established. Indeed, there cannot be any controversy about the same as it is not a private road but a road marked and designated under a development plan. His further evidence is purely hearsay. He admits in is valuation report itself that he had learnt only from his colleague one Arvind Bhave that in the year 1989 that the access was only a small undulated pathway. In his cross-examination, he admits that he had no personal knowledge about this either. 15. In respect of one of the instances of sale relied upon by him, he stated in answer to Question No.32 that at the time of acquisition, the land under reference did not have a proper access; that the access was through an uneven field and that at times a person trying to reach the plot on a bicycle had to get down and walk alongside the bicycle. 16. In Question No.33, he was asked the basis of the above 9 answer. He admitted that he was so informed by his professional colleague one Bhave who since 1977 used to visit a friend who stayed in the locality. In answer to Question No.34, he frankly admitted that his evidence was not based on his personal knowledge but based on what his colleague the said Bhave told him. This evidence is clearly hear-say and cannot be accepted. The Acquiring Body did not lead the evidence of Bhave. The evidence of this witness in this regard is rejected. 17. I therefore accept the Claimant's case that the land under acquisition had a direct frontage from the 13.4 mtr. wide D.P. Road which was in existence prior to the date of acquisition i.e. 3.8.1989. 18. To my mind, this would not make a substantial difference. Even in 1989, the land was situated in one of the major suburbs of the city. The fact that the land abuts a DP Road, was itself sufficient to enhance its value on the basis of access. To put it differently, even assuming that the road was a "katcha" road, it would not have reduced the value of the land substantially. 19. CW-1's evidence that the hutments on the land occupied an area of about 600 sq. mtrs. was questioned in cross- examination. In answer to Question No.5, he stated that he was 10 not aware of the number of hutments on the land but knew that an area of about 600 sq. mtrs. was occupied by the hutments. His answer to Question No.6 whether he had counted the hutments, was in the negative. He however denied the case put in Question No.7 that more than 75% of the acquired land was covered by hutments. 20. There really cannot be any significant dispute regarding the aggregate area occupied by the hutments. The SLAO has in Annexure `A' to the award, furnished the details of the hutments on each of the properties acquired, including the land which is the subject matter of the present reference. Serial Nos.22 to 66 and 68 mentioned in Annexure `A' pertain to hutments on the land under acquisition in this reference. The aggregate area occupied by the hutments is about 56% of the total area of the land viz. 1241.70 sq. mtrs. 21. The evidence of the two valuers regarding the area of the land occupied by the hutments is really of no value. Neither of the valuers had any personal knowledge of this aspect as on the relevant date viz. 3.8.1989. It is not their case that they either counted the number of hutments or measured the same. CW-2, the Claimant's valuers fairly stated that he computed the area only on 11 the basis of Annexure `A' to the award. The award has been marked in evidence and I see no reason not to proceed on the basis of the areas of the hutments on the lands in the present reference mentioned therein. 22. The Claimant's valuer Hitendra Kisan Mehta(CW-2) in his evidence computed the area of the hutments to be 687.70 sq. mtrs. on the basis of Annexure `A' to the award. I proceed on the basis therefore that the aggregate area occupied by the hutments is 687.70 sq. mtrs. and not 600 sq. mtrs. as stated by CW-1. There is no warrant for assuming the area to be larger specially in view of the fact that the acquiring body has not produced any evidence to the contrary. 23. I also accept the Claimant's evidence that the land was leveled and did not require any filling or cutting. There was nothing in the cross-examination which even remotely disproved this evidence. 24. This brings me to a consideration of the evidence of the two valuers for computing the market value of the property. 25. I will first deal with the evidence of the Claimant's valuer CW-2. 26. It is not necessary to set out the qualifications of CW-2. 12 He has set out his qualifications in detail. His qualifications have not been disputed in cross-examination. They are sufficient to qualify him as a valuer in the present case. 27. He has valued the land on the basis that it is vacant and free from encumbrances as well as on as is where is basis i.e. taking into account the existence of the hutments. He has tendered in his evidence a copy of the award and a copy of an order and judgment dated 7.3.2005 in a group of LARs passed by S.U. Kamdar, J. (as he then was), the first of which is LAR No.4 of 1994. The award with the further order dated 23.3.1992 modifying the award is marked as Exhibit "C-5" in evidence. A copy of the said judgment is marked as Exhibit "C-6" in evidence. 28. Before dealing with the evidence of CW-2 regarding valuation, it would be convenient to deal with Mr.Hegde's submissions regarding an aspect of the evidence of CW-2. Mr. Hegde stated that CW-2 falsely stated in his valuation report that the lands were in the possession of the Acquiring Body on 1.2.2006. He also stated in paragraph 6 that he found this to be so at the time of his visit to the site on 1.2.2006. The submission is really without a sequiter as I will shortly demonstrate. 13 29. In answer to Question No.1, CW-2 stated that he made this observation in his report on the basis of the original possession receipt in respect of the acquired land with CW-1. He also stated that this is also mentioned in the award itself. CW 2 was cross- examined on the question as to whether the acquiring body was in physical possession of the land or not ? In answer to Question No.2, whether he had verified if physical possession of the land was actually with the Acquiring Body, he stated that he knew that the legal possession was with MSRTC. He admitted that he tried to find out the position regarding the actual physical possession on the date of his possession but could not ascertain the same. 30. The cross-examination in this regard is really of no consequence. It appears that the acquiring body refused to take possession of the plot from the government/S.L.A.O. I will presume this to be so. That would make no difference whatsoever. Admittedly, the acquisition proceedings were at the instance and for benefit of the acquiring body. Admittedly, again possession of the plot was taken in advance by the S.L.A.O. from the claimant. It appears that the Acquiring Body refused to take over possession of the land from the State 14 Government. The acquisition proceedings are complete. As far as the Claimant is concerned, possession of the lands have been taken over pursuant thereto. This aspect is in fact admitted even in paragraph 8 of the reference filed by the SLAO to this Court. Whether the acquiring body thereafter took possession of the plot from the authorities or not is of no concern to the claimant and has no bearing on the reference. 31. Mr. Hegde also relied upon a portion of the award to contend that possession was not with the Acquiring Body. 32. The error in his submission arises from the fact that the relevant portion of the award was not read fully. Read in its entirety, the award clearly stated that the advance possession including of the land in question had been taken over through the DILR, SDO on 30.6.1990. 33. Moreover, this is a reference under Section 18. The Acquiring Body has not denied the acquisition. The submission even if correct, cannot therefore affect the Claimant's claim for enhancement. 34. In his valuation report, CW-2 states that he has been a resident of the said area since 1977 and that he has also been well acquainted with the western suburbs where the lands are situated. 15 In paragraph 3 he makes it clear that he is relying upon the said judgment dated 7.3.2005. In paragraph 7, he has dealt with the situation and described the locality. He has stated inter-alia that the main development in the locality had taken place prior to 1982; that the said 13.4 mtr. wide D.P. Road was fully developed before that date and that the entire locality is one of the most prominent in Borivali (East) due to its close proximity to the Borivali railway station which is at a walking distance of 15 minutes. In paragraph 8, he describes the surrounding area. He has stated inter-alia that within 200 mtrs. from the said lands under acquisition, are the Bank of India Staff Quarters, Mahindra & Mahindra Co-operative Society, Nancy Colony Complex cottages/bungalows, BEST bus deport, dispensaries, a Jain Derasar and various multi-stored buildings and shops and large Co-operative Housing Societies. In paragraph 10, he has stated that in the year 1989 the surrounding area was fully developed in terms of all civic amenities such as markets, schools and restaurants being within a few minutes walking distance. CW 2 in his cross examination mentioned that he had submitted the valuation report in L.A.R.No.4 of 1994 in which 16 matter, the said judgment was delivered. He stated that in 1985-86 he had visited the surrounding area for the first time in connection with his professional work. He further stated that he visited the acquired land for the first time in 1999. He admitted that he was broadly aware of the situation of the land under reference even in 1989 but not in detail. He clarified that by the surrounding area he referred to the area within the periphery of about 800 sq. metres of the land under reference. In answer to Question No.17 he stated that the averments in para 7 at page 6 of his report to the effect that the main development of the locality known as "Nancy Colony" had taken place prior to 1982 and that buildings around and appurtenant to the D.P.Road were fully developed before the relevant date were based on his personal knowledge. He also stated that the details of development mentioned by him in his report were on the basis of his personal inspection and surveys during the period 1999 onwards. These were in connection with L.A.R.No.4 of 1994 and connected matters and L.A.R. nos. 7,8 and 9 of 2003. These answers were not challenged in cross-examination. This evidence was not seriously disputed either in the cross-examination or at the hearing before me. Indeed, it could not 17 have been. These are prominent suburbs of this city wherein development started long before 1989. 35. In paragraph 11, CW-2 expressly stated that he relied upon the said judgment of this Court dated 7.3.2005. He stated that the judgment is in respect of lands which are proximate in terms of time as well as in terms of location to the land under acquisition in this case. He then proceeds to compare the land under acquisition in this reference with the eight plots of land considered in the said judgment. In paragraph 13, of his valuation report, CW-2 concludes that he would value the acquired land in the present case on the basis of the rate of Plot No.2 referred to in the said judgment as it is the most comparable. This conclusion is based inter-alia on the fact that the distance between Plot No.2 and the present land is 125 mtrs., both the plots have a road frontage and are comparable in size and shape. He has in a tabular form compared the two plots as follows:- “12.2 COMPARISION WITH PLOT NO.2 C. T. S. NO.235 (PT.), L.A. REF. NO.4 OF 1998 Sr. FEATURE INSTANCE LAND LAND UNDER ALLOW PLOT NO.2 REF. ANCE 01 SIZE(AREA) 878.70 SQ.MTS. 1241.70 SQ.MTS. Nil 18 02 SHAPE Regular with Regular with Nil rectangular rectangular Development Development Potential *(Pl. Potential *(Pl. refer Foot Note 1) refer Foot Note 1) 03 LOCALITY Middle Class Middle Class Nil 04 AVAILABILITY Yes Yes Nil OF CIVIC AMENITIES 05 FRONTAGE ON 60' WIDE ROAD 40' WIDE ROAD -5% RD. 06 ACCESS Available Available Nil 07 USER Resi. with shops Resi. with shops Nil POTENTIAL at Gr. Fl. At Gr. Fl. 08 PROXIMITY TO 1.5 Km. From 1.5 Km. From Nil RLY. STATION Borivali Rly. Stn. Borivali Rly. Stn. 09 TOPOGRAPHY Filling & Leveling Filling & Leveling Nil taken into taken into consideration consideration TOTAL - - -5% ALLOWANCE VALUATION RS. 1683.74 RS. 1599.55 RATE PER SQ.MT. ON PER SQ. MT. ON 03-08-1989. 03-08-1989. FOOT NOTE -1” “BY RECTANGULAR DEVELOPMENT” I MEAN THE POTENTIAL TO CONSTRUCT A RECTANGULAR SHAPED BUILDING.” 36(A). The lands which were the subject matter of the reference in that case and the land which is the subject matter of acquisition in this case were notified under a common notification. Thus, the judgment in L.A.R. No.4 of 2005 is relevant in the present case. As stated earlier, this has not 19 been disputed by ABW in his cross-examination. In the said judgment sale instance no. 3 therein was found to be most comparable. In the said judgment, eight plots which fell for consideration therein were valued on the basis of the sale instance no.3 therein. CW-2 in his valuation report has stated that the eight plots valued in the said judgment, plot no.2 is the most comparable to the land under acquisition in the present reference, including on account of the fact that the distance between plot no. 2 and the land under reference is only about 125 meters and that both the plots have a road frontage and are comparable in size and shape. In paragraph 13, CW-2 states that he would therefore value the acquired land in the present case on the basis of the value of plot no.2 referred to in the judgment. (B). It was not disputed either before me or even during the cross examination of the claimant's witnesses that between the eight plots which were the subject matter of the said judgment, plot no. 2 was most comparable to the plot in the present case. In fact, there was no cross-examination to the effect that the other plots of land in the other Land Acquisition References dealt with in the said judgment are more comparable. (C). In the said judgment, it is recorded that the land in 20 Instance No. 3 was valued at Rs. 1445.78. Taking this figure, to plot no.2, the learned Judge added 5 % (Rs.72.29 per sq.metre) on account of increase in price for one year, 5% (Rs.7229.59) on account of size, 10% (Rs.144.58 per sq.metre) on account of shape