- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE JURISDICTION FIRST APPEAL NO.870 OF 1991 WITH FIRST APPEAL NO.817 OF 1991 FIRST APPEAL NO.870 OF 1991 FIRST APPEAL NO.870 OF 1991 FIRST APPEAL NO.870 OF 1991 The State of Maharashtra, ) through the Special Land ) Acquisition Officer, Panvel. ).. Appellant (Org.Opponent) Vs. 1. Shri Ismile ABdul Gafur Patel,) Since deceased through his ) legal heirs: ) 1.a) Smt. Maimuna Ismail Patel, ) Wife, AGe 75 yrs., ) R/a.Taloja, Tal.Panvel, ) Dist : Raigad. ) 1.b) Smt.Jubeda M.Shafi Patel, ) Daughter, Age 55 years, ) R/a.Panvelpada Mohalla, ) Dist.Raigad. ) 1.c) Shri Ibrahim Ismail Patel, ) Son, Age 54 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.d) Shri Gulam Ahmed Ismail Patel,) Son, Age 52 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.e) Smt.Saruma Nisar Kaji, ) Daughter, Age 51 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.f) Shri Gulam Mustafa Ismail Patel,) Son, AGe 50 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) - 2 - 1.g) Smt.Julekha Allimiya Patel, ) Daughter, Age 49 years, ) R/a. Kacchi Mohalla, ) Tal.Panvel, Dist. Raigad. ) 1.h) Smt.Jaitun M.Hanif Mulla, ) Daughter, Age 48 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.i) Smt.Havabi Ismail Patel, ) Daughter, Age 45 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.j) Shri Gulam Murtaja Ismail Patel,) Son, Age 42 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.k) Shri Abbas Ismail Patel, ) Son, Age 40 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.l) Shri Illias Ismail Patel, ) Son, Age 38 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.m) Shri Isaq Ismail Patel, ) Son, Age 35 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.n) Shri Mohammad Noor Ismail Patel,) Son, AGe 32 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 1.o) Smt.Hakima Ismail Patel, ) Wife, since deceased, ) 2. Shri Mahamad Yusuf Abdul ) Gafur Patel, ) 3. Smt.Khatijabibi Javade ) Hajimiya Patel, ) Since deceased through her ) Legal Heirs:- ) - 3 - 3.a) Smt.Mumtaj Begam Javade ) Mohamudmiya Kaji, ) Daughter, Age 60 years, ) R/a.Taloja Panchnand, ) Tal.Panvel, Dist. Raigad. ) 3.b) Shri nasruddin Hajimiya Patel,) Son,Age 58 years, ) R/a.Taloja Panchnand, ) Tal.Panvel, Dist. Raigad. ) 3.c) Shri Shabbir Ahmed Hajimiya ) Patel, Son, Age 55 years, ) R/a.Taloja Panchnand, ) Tal. Panvel, Dist. Raigad. ) 3.d) Smt.Jainabbibi Javeja A. ) Latif Patel, ) Daughter, Age 53 years, ) R/a.Patel Mohalla, ) Tal. Panvel, Dist. Raigad. ) 3.e) Smt.Sugarbibi Javaje Gulam ) Mahamad Kaji, ) Daughter, Age 51 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 3.f) Smt.Joharabibi Javaje Iqbal ) Kaji, Daughter, Age 47 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 4. Smt.Fatimabibi Mainuddin Patel,) Since deceased through her ) Legal Heirs:- ) 4.a) Smt.Rajiyabegam A. Hamid ) Subhedar, Daughter, ) Age 55 years, R/a. Taloja, ) Tal. Panvel, Dist. Raigad. ) 4.b) Smt.Salyabibi Bashir Ahmed ) Divan, Daughter, Age 55 years,) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 4.c) Shri Khalid Husen Mainuddin ) Patel, Son, Age 50 years, ) R/a.Taloja, Tal. Panvel, ) - 4 - Dist. Raigad. ) 4.d) Smt.Maryambibi Shabbir Ahmed ) Patel, Daughter, Age 48 years,) Tal.Taloja, Tal. Panvel, ) Dist. Raigad. ) 4.e) Smt.Bilkisbegam Anwar Patel, ) Daughter, Age 45 years, ) R/a.Taloja, Tal. Panvel, ) Dist. Raigad. ) 4.f) Smt.Mohasinabibi Anwar Patel, ) Daughter, Age 40 years, ) R/a.Pada Mohalla, Panvel, ) Tal.Panvel, Dist. Raigad. ) 4.g) Smt.Hajirabibi Mainuddin Patel,) Daughter, Age 35 years, ) R/a.Tajoja, Tal. Panvel, ) Dist. Raigad. ) 5. Smt.Marayambibi Hajimiya Patel,) 6. Smt.Aishabibi Ibrahim Patel, ) 7. Smt.Najirabibi Sidhikmiya Patel,) 8. Shri Abdulrajak Isufmiya Patel,) 9. Shri Mahamadshafi Yusufmiya ) Patel, since deceased through ) her Legal Heirs:- ) 9.a) Smt.Ruksana M.Shafi Patel, ) Wife, Age 48 years, ) R/a.Taloja Panchnand, ) Tal.Panvel, Dist. Raigad. ) 9.b) Miss. Juveriya M.Shafi Patel, ) Daughter, AGe 15 years, ) R/a.Taloja Panchnand, ) Tal.Panvel, Dist. Raigad. ) 9.c) Miss.Munira M.Shafi Patel, ) Daughter, Age 13 years, ) R/a.Taloja Panchnand, ) Tal. Panvel, Dist. Raigad. ) 9.d) Shri Umer M.Shafi Patel, ) Son, Age 11 years, ) - 5 - R/a. Taloja Panchnand, ) Tal. Panvel, Dist. Raigad. ) 10. Shri Abdulalij Isufmiya Patel,) 11. Smt.Hajirabibi Isufmiya Patel,) 12. Smt. Noorjaha Yusufmiya Patel,) 13. Smt.Fatima Isufmiya Patel. ).. Respondents. (Org.Claimants) -- Smt.G.P.Mulekar, AGP for the Appellant. Shri R.S.Datar for the Respondents/claimants. -- WITH WITH WITH FIRST APPEAL NO.817 OF 1991 FIRST APPEAL NO.817 OF 1991 FIRST APPEAL NO.817 OF 1991 1. Shri Ismile Abdul Gafur Patel,) Since deceased through his ) legal representatives: ) 1/1. Maimuna Ismail Patel, ) 1/2. Halima Ismail Patel, ) 1/3. Jubeda M.Shafi Patel, ) R/o.Pada Mohalla, Panvel, ) Dist.Raigad. ) 1/4. Saruma Nisar Kaji, ) 1/5. Julekha Ali Mia Patel, ) r/o.Kachchi Mohalla, ) Taluka Panvel, District-Raigad) 1/6. jaitun M.Hanif Mulla, ) 1/7. Havabi Ismail Patel, ) 1/8. Ibrahim Ismail Patel, ) 1/9. Gulam Ahmed Ismail Patel, ) 1/10. Gulam Mustafa Ismail Patel, ) - 6 - 1/11. Gulam Murtaja Ismail Patel, ) 1/12. Abbas Ismail Patel, ) 1/13. Ilyas Ismail Patel, ) 1/14. Isak Ismail Patel, ) 1/15. Mohd. Noor Ismail Patel, ) Nos.1/2, 1/4, 1/6 to 1/15 ) residing at Taloja, ) Tal. Panvel, Dist. Raigad. ) 2. Mahamad Yusuf Abdul Gafur ) Patel, ) 3. Khatijabibi Javade Hajimiya ) Patel, ) Since deceased through her ) Legal Heirs:- ) 3/1. Nasruddin Hajimiya Patel, ) Age 52 years, ) 3/2. Shabbir Ahmed Hajimiya Patel, ) Age 47 years, ) 3/3. Smt.Mumtaj Begam Javaja ) Mohammad, ) Miya Kazi, Age 50 years, ) 3/4. Jainab Bibi Javaje A. Latif ) Patel, Age 45 years, ) 3/5. SugarEbibi Javaje Gulam ) Mahhammad Kazi, ) Age 40 years, ) 3/6. Johara Bibi Javaje Iqbal Kazi,) All residing at Taloja, ) Panvel, Dist.-Raigad. ) 4. Fatimabibi Mainuddin Patel, ) Since deceased through her ) Legal Heirs:- ) 4(1) Khalid Hussain Maimuddin Patel,) Age 38 years, ) 4(2) Smt.Rajiya Begam A.Subedar, ) Age 47 years, ) - 7 - 4(3) Smt.Balma Biti Bashir Ahmed ) Diwan, Age 40 years, ) 4/4. Maryam Bibi Shabbir Ahmed Patel,) 4/5. Bilkis Begam Anwar Patel, ) Age 30 years, ) 4/6. Mohasini Bibi Anwar Patel, ) Age 27 years, ) 4/7. Hajira Bibi Mainuddin Patel, ) Age 22 years, ) All residing at Taloja, ) Panvel, Dist- Raigad. ) 5. Marayambibi Hajimiya Patel, ) 6. Aishabibi Ibrahim Patel, ) 7. Hajirabibi Sidhikmiya Patel, ) 8. Abdulrajak Isufmiya Patel, ) 9. Shri Mahamadshafi Yusufmiya ) Patel, since deceased through ) her Legal Heirs:- ) 9/1. Rukshana Javaje M.Shafi Patel,) Age 38 years, ) 9/2. Umer M.Shafi Patel, ) Age 7 years, ) 9/3. Juveriya M.Shafi Patel, ) Age 10 years, ) 9/4. Munina M. Shafi Patel, ) Age 8 years. ) All residing at Taloja, ) Panvel, Dist. Raigad. ) 10. Abdulalij Isufmiya Patel, ) 11. Hajirabibi Isufmiya Patel, ) 12. Noorjaha Yusufmiya Patel, ) 13. Fatima Isufmiya Patel. ).. Appellants (Org.Claimants) - 8 - Vs. The State of Maharashtra, ) through the Special Land ) Acquisition Officer, ) Metro Centre No.V, Panvel, ) District - Raigad. ).. Respondent. (Org.Opponent) -- Shri R.S.Datar for the Appellants. Smt.G.P.Mulekar, AGP for the respondent. -- CORAM : R.M.S.KHANDEPARKAR & V.M.KANADE, JJ. DATED : 29TH SEPTEMBER, 2005. ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) ORAL JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) 1. Since both the appeals arise out of the common judgment and award passed by the reference Court, they were heard together and are being disposed of by this common judgment. 2. The First Appeal No.870 of 1991 has been filed by the State of Maharashtra whereas the First Appeal No.817 of 1991 has been filed by the claimants. 3. The claimants’ land bearing Survey Nos.40, 44/1, 39/1, 37/4C, 7/2/7/A, 37/1/A, 36/8, 37/40/68/8, 37/18 and 36/7 situated in village Taloja, Taluka - - 9 - Panvel, District of Thane, were sought to be acquired by a notification issued under Section 4 of the Land Acquisition Act 1894, hereinafter called as "the said Act", and published in Government Gazette on 4th February, 1970. The award in exercise of powers under Section 11 of the said Act was declared on 6th December 1985 thereby awarding compensation for the land of the claimants at the rate of Rs.3/- and Rs.4/- per sq.meter. Being dissatisfied, the claimants preferred reference application under Section 18 of the said Act claiming Rs.15/- p.s.m. which was thereafter by way of amendment enhanced to Rs.25/- and further to Rs.30/- p.s.m. The reference court after recording the evidence which comprised of testimony of the claimants and their valuer, awarded compensation at the rate of Rs.15/- p.s.m. Being dissatisfied with the said award, the State of Maharashtra has filed the First Appeal No.870 of 1991 whereas the claimants have filed the First Appeal No.817 of 1991 claiming compensation at the rate of Rs.40/- p.s.m. 4. The learned advocate appearing on behalf of the State of Maharashtra, while assailing the impugned award submitted that the reference Court erred in enhancing compensation at the rate of Rs.15/- p.s.m. solely on the basis of the testimony of the claimants - 10 - and the valuer ignoring the fact that the said testimony nowhere assists the claimants to justify enhancement of the compensation. She further submitted that the reference court failed to take note of the fact that the testimony of the valuer was on the basis of his inspection carried out nearly 19 years after the publication of the notification under Section 4 and that the sale instances, which were sought to be relied upon by the valuer, were in relation to strips of land or pieces of land situated in the neighbourhood of the residents of the houses. The reference Court did not consider the issue regarding deductions to be made in case the land is to be considered as potential and suitable for construction activities. The valuation in relation to a large piece of land cannot be on the meter basis but it is to be on the hectare basis. In the absence of cogent evidence being produced on record by the claimants, the reference Court erred in granting enhancement to the extent of Rs.15/- p.s.m. She relied upon the decisions in the matter of Viluben Viluben Viluben Jhalejar Contractor (Dead) by LRs. v. State of Jhalejar Contractor (Dead) by LRs. v. State of Jhalejar Contractor (Dead) by LRs. v. State of Gujarat, Gujarat, Gujarat, reported in (2005)4 SCC 789, P.Rajan and P.Rajan and P.Rajan and Another v. Kerala State Electricity Board and Another v. Kerala State Electricity Board and Another v. Kerala State Electricity Board and Another, Another, Another, reported in (1997) 9 SCC 330, Kasturi & Ors. Kasturi & Ors. Kasturi & Ors. v. State of Haryana, v. State of Haryana, v. State of Haryana, reported in (2003)1 SCC 354, - 11 - Administrator General of West Bengal v. Collector, Administrator General of West Bengal v. Collector, Administrator General of West Bengal v. Collector, Varanasi, Varanasi, Varanasi, reported in AIR 1988 SC 943, Ratan Lal Gupta Ratan Lal Gupta Ratan Lal Gupta & Ors. v. Union of India, & Ors. v. Union of India, & Ors. v. Union of India, reported in (1996)7 SCC 3, and in the matter of Special Land Acquisition Officer, Special Land Acquisition Officer, Special Land Acquisition Officer, Bangalore v. V.T.Velu & Ors., Bangalore v. V.T.Velu & Ors., Bangalore v. V.T.Velu & Ors., reported in (1996) 2 SCC 538. 5. On the other hand, the learned Advocate for the claimants while assailing the impugned award submitted that the reference Court erred in taking note of the fact that the evidence produced on record clearly justified the enhancement of compensation for more than Rs.30/- p.s.m. He further submitted that the testimony of the valuer in support of the claim of the claimants for enhancement of compensation has gone unchallenged and it clearly established the justification for enhancement of compensation at least to the tune of Rs.40/- p.s.m. This Court had occasion to deal with the acquisition proceedings in different cases of land acquisition in respect of five different villages in the district of Thane and particularly in Taluka of Panvel. The judgment in that regard was delivered on 16th March, 2000 in different appeals arising in those cases and considering the valuation done in the earlier decision in First Appeal No.875 of 1986 in respect of the acquired land in the village - 12 - Taloja and considering the location of the different pieces of land in comparison with the location of Mumbai-Pune National Highway as well as Thane-Pune Highway, had awarded compensation in the range of Rs.14/- to Rs.25/- p.s.m. Considering the same, certainly the compensation awarded by the reference Court at the rate of Rs.15/- is to be considered at a very lower rate and needs to be enhanced at least to the extent to Rs.25/- p.s.m., if not, as claimed by the claimants. He has placed reliance in the said decision dated 16th March, 2000 delivered by the Division Bench of this Court in First Appeal No.382 of 1984 and various other first appeals. Relying upon the decision of the Apex Court in the matter of Bhim Bhim Bhim Singh & Ors. v. State of Haryana & Anr., Singh & Ors. v. State of Haryana & Anr., Singh & Ors. v. State of Haryana & Anr., reported in 2003 SC 4382, he has submitted that such reliance on the decision already given by this Court in different matter relating to the land in the same village is relevant for the purpose of decision regarding market value of the land in question. Drawing attention to the decision in Tanaji Abasaheb Pawar & Ors. etc. v. Tanaji Abasaheb Pawar & Ors. etc. v. Tanaji Abasaheb Pawar & Ors. etc. v. State of Maharashtra & Anr., State of Maharashtra & Anr., State of Maharashtra & Anr., reported in (2005)1 All India Land Acquisition & Compensation Cases 332, the learned advocate submitted that bearing in mind the scheme under the said Act merely because the valuer had visited the land nearly 19 years after the date of - 13 - issuance of the notification under Section 4, that by itself cannot be considered to be sufficient to discard the testimony of such valuer as it cannot be presumed that every land owner had knowledge about the fact that he had to establish market value with the help of the expert valuer. Shri Kulkarni, who was examined as expert valuer, had been the Valuer in various other cases in the locality and the judicial notice of the said fact should be taken and that itself should be considered to be sufficient to give due credence to his testimony. 6. Plain reading of the impugned award discloses that the reference Court, while heavily relying upon the testimony of the valuer Shri Kulkarni and on consideration of the location of the land in question and its situation based on the evidence led by the claimants, has held that the market value of the acquired land to be Rs.15/- p.s.m. as on 3rd February, 1970. The impugned award nowhere discloses any analysis of the testimony of the valuer and it merely proceeds on the basis that the testimony of the valuer has not been contradicted or disproved either by way of cross-examination or examination-in-chief of any efficient valuer by the Government. In fact, failure in that regard on the part of the Government - 14 - has been considered as justification to rely upon the testimony of the valuer, who had been examined on behalf of the claimants, without any analysis of such testimony and that too without any effort on the part of the reference Court to ascertain upto what extent, the testimony of the valuer could justify the claim for compensation even at the rate of Rs.15/- p.s.m. The reference Court has nowhere referred to the issue regarding comparability of the land in question with the lands which were subject matter of the sale instances which were sought to be relied upon by the valuer or that the pieces of land which were subject matter of the land under reference stated to have been considered by the valuer. The reference Court has also not considered the fact that the valuer had no occasion to inspect the land in question in the year when the notification under Section 4 was issued and the fact that the land had been inspected by the valuer only in the year 1989 whereas the notification under Section 4 was issued in the year 1970. Considering all these aspects, therefore, the judgment having been delivered without the analysis of the evidence on record in the manner it was required to be analysed and the reference Court having proceeded on mere assumptions and presumptions regarding credibility of the testimony of the valuer without - 15 - addressing itself to the relevant issues which were required to be considered while dealing with the matter pertaining to the market value of the acquired land and in particular, bearing in mind the law laid down by the Apex Court in The Special Land Acquisition The Special Land Acquisition The Special Land Acquisition Officer, Bangalore, v. T.Adinarayan Setty, Officer, Bangalore, v. T.Adinarayan Setty, Officer, Bangalore, v. T.Adinarayan Setty, reported in AIR 1959 SC 429, the impugned award cannot be sustained. 7. The first point which arises for our consideration is whether the valuation of the land under acquisition can be simply on the basis of the decision delivered by this Court in relation to another land acquired in the same village ? 8. In Bhim Singh’s case (supra) Bhim Singh’s case (supra) Bhim Singh’s case (supra), the Apex Court observed that in some of the judgments the High Court had taken note of the fact that in respect of earlier acquisitions some matters had come to the Apex Court and the Apex Court had approved the rate fixed by the High Court in those matters, and in that context, it was held that :- "It was rightly held that when this Court had fixed rates in respect of earlier acquisitions for the same purpose, it was better to adopt - 16 - those rates with suitable increases than to rely upon sale instance." The decision is on the point that when the Apex Court had approved certain rates for a particular area, the same has to be taken as the basis rather than referring to sale instances from another villages. The decision nowhere lays down that the value so fixed should be blindly applied to the subsequent acquisitions of land. It specifically states that the rates so fixed in respect of earlier acquisitions for the same purpose, could be adopted as the basis for fixing the rates with suitable variations to the subsequent acquisition of land from the same village. Bearing in mind the said decision, if one peruses the decision of the Division Bench of our Court delivered on 16th March, 2000 in First Appeal No.875 of 1985 and others (unreported), undoubtedly, it is in relation to various lands which were sought to be acquired by issuance of notification under Section 4 in the year 1970 from the village Taloja and the Court preferred to rely upon the earlier judgment of the Division Bench in First Appeal No.382 of 1984 which was delivered in March, 1987 and had a map and the valuation report submitted on behalf of claimants therein which was not disputed by the State, to - 17 - justify enhancement on the basis of rates fixed in the said Appeal No.382 of 1984. 9. The Apex Court in T.Adinarayan Setty’s case T.Adinarayan Setty’s case T.Adinarayan Setty’s case (supra) (supra) (supra) had in clear term laid down the law as regards the method to be adopted for assessment of compensation in relation to the lands acquired under the said Act. It was held therein that it is not disputed that the function of the Court in awarding compensation under the Act is to ascertain the market value of the land as or the date of the notification under S.4(1) and the valuation should be may on the basis of (1) opinion of experts, (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired. The said decision has been reiterated by the Apex Court in number of decisions delivered after the decision of T.Adinarayan’s case, Besides, it has been time and again clarified by the Apex Court that, while relying upon any other material including the decisions of the Court or sale instances, the issue regarding comparability cannot be ignored. It is absolutely necessary to ascertain whether the land - 18 - which had been the subject matter of a decision of the Court is comparable with the land which is a subject matter of the valuation in the case before the Court. 10. The Apex Court in Viluben Jhalejar Viluben Jhalejar Viluben Jhalejar Contractor’s case (supra) Contractor’s case (supra) Contractor’s case (supra) had ruled that the market value is ordinarily the price the property that may be fetched in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. It was also observed that one of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor, and it is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not. It was also held that "where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered." However, it was further ruled that "the amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified - 19 - having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the same two in juxtaposition." The Apex Court has identified the positive factors to be, smallness of size; proximity to a road; frontage on a road; nearness to developed area; regular shape, level vis-a-vis land under acquisition and special value for an owner of an adjoining property to whom it may have some very special advantage, while the negative factors have been identified as largeness of area; situation in the interior at a distance from the road; narrow strip of land with very small frontage compared to depth; lower level requiring the depressed portion to be filled up; remoteness from developed locality; and some special disadvantageous factors which would deter a purchaser. The said ruling clearly holds that the blind application of any earlier decision to the facts of the case under consideration would be an abuse of power by the Court in relation to the evaluation of the market value for the purpose of determination of compensation under the said Act. In order to apply such decision, it is equally necessary - 20 - to determine the issue of comparability of the land which was subject matter of the earlier decision with the land in question before the Court. In the absence of