((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION LAND ACQUISITION REFERENCE NO.18 OF 1991 IN LAQ/543(1) The SLAO (7), Bombay and Bombay Suburban District and Smt.Sharda Pratap Talsania & ors. Claimants and The Municipal Commissioner Greater Bombay Municipal Acquiring Corporation Body ALONG WITH LAND ACQUISITION REFERENCE NO.19 OF 1991 IN LAQ/543(2) The SLAO (7), Bombay and Bombay Suburban District and Smt.Sharda Pratap Talsania & ors. Claimants and The Municipal Commissioner Greater Bombay Municipal Acquiring Corporation Body ALONG WITH LAND ACQUISITION REFERENCE NO.20 OF 1991 IN LAQ/543(3) ((-2-)) The SLAO (7), Bombay and Bombay Suburban District and Dilip Himatlal Talsania & others Claimants and The Municipal Commissioner Greater Bombay Municipal Acquiring Corporation Body ALONG WITH LAND ACQUISITION REFERENCE NO.21 OF 1991 IN LAQ/543(4) The SLAO (7), Bombay and Bombay Suburban District and Kamal Anil Talsania and others Claimants and The Municipal Commissioner Greater Bombay Municipal Acquiring Corporation Body ALONG WITH LAND ACQUISITION REFERENCE NO.22 OF 1991 IN LAQ/543(5) The SLAO (7), Bombay and Bombay Suburban District and Smt.Sharda Pratap Talsania & ors. Claimants and The Municipal Commissioner Greater Bombay Municipal Acquiring Corporation Body ((-3-)) ALONG WITH LAND ACQUISITION REFERENCE NO.23 OF 1991 IN LAQ/543(6) The SLAO (7), Bombay and Bombay Suburban District and Dilip Himatlal Talsania Claimants and The Municipal Commissioner Greater Bombay Municipal Acquiring Corporation Body ALONG WITH LAND ACQUISITION REFERENCE NO.25 OF 1991 IN LAQ/543(7) The SLAO (7), Bombay and Bombay Suburban District and Kamal Anil Talsania Claimants and The Municipal Commissioner Greater Bombay Municipal Acquiring Corporation Body APPEARANCES In LAR Nos.18/1991 to 23/1991 & 25/1991 Shri R.J.Mane for SLAO. Shri U.J.Makhija with Shri H.C.Pimple for Municipal Corpn. of Greater Bombay - Acquiring Body. Shri C.M.Korde with Shri J. Chandran i/by ((-4-)) Purnanand & Co. for claimants. In LAR No.26/1991 Shri R.J.Mane for SLAO. Shri U.J.Makhija with Shri H.C.Pimple for Municipal Corpn. of Greater Bombay - Acquiring Body. Shri P.C.Mody with Ms.N.Patrawala i/by Pravin Mehta and Mithi for claimants. CORAM : S.C.DHARMADHIKARI, J. DATE : 04th April 2006 PC : 1. The above Land Acquisition References (for short "LARs") are filed under section 18 of the Land Acquisition Act, 1894. They pertain to same award. The purpose of Acquisition is one and common. The arguments are identical. Hence, they are disposed of by this common judgement. 2. Shri Korde appears for claimants in all LARs except LAR No.26 of 1991 in which Shri Mody appears for claimants. Shri Makhija appears for the Acquiring Body in all references. Shri Mane - AGP appears for Special Land Acquisition Officer ("SLAO" for short). 3. The acquisitions under the present references ((-5-)) were for the purposes of Municipal Corporation of Greater Bombay ("MCGB" for short). The public purpose for which the lands were reserved, is 100 feet wide D.P.Road. The Notification under section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 read with Section 6 of the Land Acquisition Act, was published in Maharashtra Government Gazette, Part-I on 5th January 1989. It is agreed that this is the relevant date for valuation. Total area of the lands in question is 10,056.250 square meters. The lands are divided into two survey numbers. Survey No.137/B corresponding to CTS No.822 admeasures 6,540.375 sq.mtrs. whereas CTS No.834 from the same survey number admeasures 3,575.875 sq.mtrs.. The possession of these lands was taken much earlier i.e. on 1st September 1978. 4. It appears that all claimants executed an agreement for advance compensation save and except claimant in LAR No.26 of 1991. A breach of this agreement was alleged and thereupon summary suits were filed in this Court. In terms of the minutes which were tendered in these summary suits, the claimants restricted their claims for interest on the enhanced compensation to 9% p.a.. Before me also, they are restricting ((-6-)) their claims for interest @ 9% p.a.. Consequent upon the agreement, the references for enhanced compensation have been filed. 5. The award of the SLAO has been delivered on 1st October 1990. Balance compensation has been paid to the claimants. However, no interest is paid thereon. The acceptance of amounts by the claimants is under protest. However, in the light of the terms arrived at during the course of disposal of the summary suits, the interest is restricted to 9% p.a. from the date of taking possession. 6. In support of of their claims for enhanced compensation, Shri Dilip Talsania stepped into the witness box on behalf of all claimants in all references. He was cross-examined by the Acquiring Body. Additionally, Valuer’s Report was tendered by the claimants. The Valuer is Shri Sam Phiroze Rao who has been cross examined at length by the Acquiring Body. 7. The facts which are not in dispute are that the lands in question are owned by Talsania Family. The award gives details of the ownership and makes specific reference to the Hindu ((-7-)) Undivided Family constituted by some of the claimants and the members thereof. It is not necessary to make a detailed reference to the same, save and except refer to Internal page 10 of the award which sets out the position of ownership qua each survey number and hissa number. 8. The lands under acquisition are situate at the North of Jaiprakash Road (Versova Road). They are about a kilometre away from Andheri West Railway Station. Some of the lands have a frontage to the Jaiprakash Road. It is also not in dispute that the road on these lands is already constructed. The SLAO assumes that the lands would require filling of atleast one meter to develop the same. At page no.12 of the award, this is what is stated :- "... ... ... The land under acquisition starts from J.P.Road, and ends to the nalla in C.T.S.No.834. At the West Corner of the starting point, is a sewerage plant of the B.M.C. while at the east, there are compound walls of the Societies already existing. The land in question is surrounded by developed localities such as Asad Nagar, Dhake Colony, D.N.Nagar, Indian Oil Nagar, Lokhandwala Complex. The J.V.P.D. Scheme which is well developed is at about 2-1/2 K.M. away from the land under acquisition. The other localities ((-8-)) all around this land as mentioned above, are of higher middle class and within a radious of 3/4 K.M. the remaining vacant lands in the vicinity are also under rapid development. All amenities such as Hospital, Market, High School, College, Stadium, Cinema etc. are available within a radious of 1/2 K.M. Frequent Bus service is also regularly available on the adjoining J.P.Road and no communication problem exists in the area. Because of all these facilities, spot could become an attraction to the higher middle class and it has therefore been rapidly developed both for residential and commercial activities. The land surrounding the land under acquisition is already developed. ... ..." After referring to the claims and valuation submitted on behalf of the claimants, the SLAO has also taken into account the evidence of Acquiring Body. Although, the MCGB has recommended to pay final compensation @ Rs.320/- per sq.mtr., that is the rate at which advance compensation was paid, ultimately, that is not the rate which is accepted by the SLAO.. 9. There are several sale instances which have been referred to by the SLAO.. However, majority of them have been discarded by him by assigning reasons with which the Valuer also does not seem to disagree. The only instance that has been taken as comparable is that of City Survey No.713 of Ambivali admeasuring 2,249.79 sq.mtrs.. This ((-9-)) land was agreed to be sold by one Shri Vazirani to Super Construction Company vide agreement dated 16th October 1986 for a total consideration of Rs.1.18 crores. According to the SLAO, the rate per sq.mtr. works to Rs.5,245/-. Thereafter, by adding annual increase, the SLAO determines the rate on the relevant date of notification i.e. under section 6 of the Act @ Rs.7,135/- per sq.mtr.. It appears that during course of the award the SLAO visited this site and noticed a construction of ground plus seven stories. This structure has several residential flats which were agreed to be sold, and later on purchased by the purchasers, who form a co-operative housing society. The developers have obtained necessary permissions. In these circumstances, the SLAO concluded that the transaction is complete. It is a genuine sale transaction and is thus a guide for determining the compensation in respect of lands under acquisition. 10. He notices the fact that the instance land is situate at Bhardawadi and is at a distance of half kilometre from Andheri Railway Station. The property is surrounded by Khoka Factories and had no direct access at relevant time to Swami ((-10-)) Vivekanand Road. The SLAO has noted the fact that the lands under acquisition are directly touching the Jaiprakash Road. They are located in an area which is already developed for residential and commercial use. All civic amenities are available. He comes to a conclusion that the price of the instance land can be considered as a basis for fixing market value of the lands under acquisition. 11. After assigning reasons for discarding other instances and the contentions of the Acquiring Body, the SLAO makes a comparison with the lands under acquisition and the instance land. At Internal page 24 of the Award, he observes thus:- "... ... However, there are some more points described below, which need careful consideration, while fixing the present market value of the land under acquisition in comparison with the land cost arrived at in respect of property bearing C.T.S.No.713 of Ambivali (Sale at Sr.No.13 of Annexure ‘B’). As observed above, the present market value of the land in similar locality has been worked out to Rs.7,135/- per Sq. Mtrs. but the said valuation is in respect of a plot of less area with good shape in developed locality near Andheri Station, while the land under acquisition is big chunk of more than 10,000 sq. Mtrs; requiring filling, having depth from the existing road and a streep of land away from Andheri Station. ((-11-)) Therefore, this rate cannot be made applicable as it is to be big plot of 10,000 sq. Mtrs. It will have to be proportionately reduced for the following reasons. Due deduction will have to be given for the areas that will be consumed in internal roads and open spaces to be provided while preparing a lay-out of such a large area of 10,000 sq.mtrs.. Considerable expenses will have to be made on payment of professional fees to the Architect for preparing layout and building Plan and legal charges to the Solicitors for preparing Agreements etc. The land under acquisition required a filling of at least a metre to bring it to the development status for laying out plots. Cost of infrastructures required to be completed by the Developer, while developing the spot for residential user. Time consumed in selling the plots or flats and the liability of interest created thereby. 12. From a perusal of the above it is abundantly clear that the SLAO has gone ahead and made deductions and allowances firstly on account of internal roads and open spaces qua the lands under acquisition, secondly, that they would require filling atleast of one meter for rendering them fit for development. Thirdly, cost of infrastructure required to be provided while developing the land for residential user and lastly time consumed in selling plots/flats ((-12-)) and the liability of interest created thereby. 13. In the award, a reference is made to another acquisition of July 1987 and the rate of Rs.1,400/- per sq.mtre. awarded to the land covered by that reference. However, before me, parties agree that no documents pertaining to this acquisition are available and no reliance can, therefore, be placed thereupon. Therefore, it is not necessary to go into this aspect. The SLAO, influenced to a certain extent by the said reference, awards compensation @ Rs.2,500/- per sq.mtr. so far as the land CTS No.822 (Part). The distinction that he makes in lands under acquisition, is on the basis of their direct frontage to the existing road (Jaiprakash Road), and, therefore, awards higher compensation to those directly abutting to the same. In other words, he fixes Rs.2,500/- per sq.mtr. for the land admeasuring 6,540.370 sq.mtr. and for the other portion namely 3,515.875 sq.mtrs. @ Rs.1,600/- per sq.mtr.. 14. As observed above, not satisfied with this rate that the present references have been filed. 15. The claimants have pointed out that the ((-13-)) lands under acquisition had frontage on Jaiprakash Road. They were fully vacant. There were no encroachments or other occupants on the land. The land was fairly even and required some filling to raise it to the level of Jaiprakash Road. The claimants have also pointed out that the area of every plot acquired is different. They are not uniform in size. In the claimants cross examination it is admitted that only some of the plots have direct access to Jaiprakash Road. 16. As far as Valuer is concerned, he also does not dispute that there is only one instance namely of Vazirani’s land, which can be said to be comparable. He also does not dispute the basis on which the SLAO has proceeded namely taking the entire lands as a single block. However, in his report dated 21st September 2005, he has highlighted the fact that in comparison with the instance land, the lands under acquisition are superior. He points out that localities around the land are of higher middle class. There is rapid development in the vicinity. All amenities such as Hospitals, Market, High School, College, Stadium etc. are available within a radious of half kilometre. ((-14-)) There is Bus Service which is regularly available. There is no communication problem. The plot/land can be developed both for residential and commercial activities. More so, when the surrounding lands are already developed. 17. The Valuer points out that the major distinguishing factor between the lands under acquisition and the instance land, is that the lands under acquisition are situate on an arterial road namely Jaiprakash Road, whereas, instance land abuts on the proposed D.P.Road and away from Ceasor Road. According to the Valuer, the SLAO has admitted the position that the instance land is surrounded by Khoka Factories of the Migrants Ideal Producers Co-operative Housing Society Limited who are already the Lessees of that land. A distance of extra half kilometre from the station as far as lands under acquisition, would not make material difference. More so, considering the other advantage of the land having direct access to the Jaiprakash Road. According to the Valuer, the instance land does not have any such advantage and at the time of transaction it was land-locked. At pages 16 and 17 (paragraph 13) of the Report submitted by the Valuer, he has pointed out that the proposed 40 ((-15-)) feet D.P.Road in fact bifurcates the original old property of the Vendors as also the lessees into two plots. Consequently, in addition to the purchase price paid by the purchasers to the vendor and the lessee society, the purchaser was saddled with liability of terms and conditions imposed by the MCGB for permitting development of other sub divided plot. This included cost of providing road, drainage, storm water channels, lighting etc. and that the additional cost, according to the Valuer, should be taken into consideration to arrive at a final price of the instance land. All this has been ignored by the SLAO and purely on the basis of the sale instance and that too by taking into account the vendors of Plot-B, the SLAO has determined the compensation. 18. According to the Valuer, additional costs to the purchaser of instance land, would be considerably more than the cost of one meter filling required in the case of lands under acquisition. According to him, this cost of filling at the material date, would be Rs.20/- per sq.mr. of the total land area. Hence, according to the Valuer, it is necessary to offset these factors. ((-16-)) 19. According to him, the additional burden on the purchaser in the case of instance land in the form of loss of interest etc. would go to increase the ultimate final price of the instance land to the purchaser thereof. The Valuer ignores the other liabilities and on the basis of the comparison made by him and considering the plus and minus points of the location of the lands under acquisition, according to him, the rate thereof as one block should be @ Rs.8,000/- per sq.mtr.. Thereafter, in paragraphs 15 and 16 of his report he makes deductions and recommends Rs.5,900/- per sq.mtr. and Rs.4,450/- per sq.mtr. as the rate at which the compensation should be awarded. In other words, the market value, according to the Valuer, should be worked out at these rates. 20. I am not concerned with other adjustments made by the Valuer on the basis that the plots were to be utilised separately by the members/HUF in question. 21. The chart which is annexed to the valuation report and the plan, is also not disputed. The conveyance of the instance land is also placed on ((-17-)) record in a compilation at page 46. The Valuer has been cross examined at length and I would be making a reference thereto. The cross examination is in question and answer form. 22. Shri Korde - learned Senior Counsel appearing for the claimants submits that once there is no dispute with regard to the location, features and other factors of the lands under acquisition, then the version of claimants which is supported by independent Valuer, should be accepted. The lands under acquisition are definitely of superior quality. He submits that the factors which have been taken into account by the SLAO as well as Valuer, are extremely relevant. After agreeing on the same, there is no warrant for any deductions. He also brings to my notice the answers to some of the questions which have been put to the Valuer during his cross examination. He submits that both, the SLAO and the Valuer, have valued the lands under question as one block. However, in addition, the Valuer, from the plan, has pointed out as to how some plots have a frontage and some are at the rear portion. The frontage portion is marked in Pink and the rear portion is marked as three sub numbers shown as bounded by Green, Yellow and ((-18-)) Blue in that plan. However, two holdings are valued as one block. The submission of Shri Korde is that on the basis of these answers it is clear that the basis adopted by both - the Valuer and the SLAO, is common. It is not as if the Valuer has granted any additional concessions to the claimants. He has made a fair and accurate assessment. In this behalf, the Valuer has in great details, according to Shri Korde, pointed out relevant factors which go into making a valuation. The Valuer has taken into account the fact that due to change in the alignment of in the road, the plots on the rear side were adversely affected. A portion on the land would become incapable of development, according to the Valuer. 23. Shri Korde has laid great emphasis on the fact that even if the land was under reservation, that cannot be considered to be a relevant and germane factor. He has placed strong reliance upon a Division Bench decision of this Court in LAR No.21 of 1988 decided on 16th October 2002. Shri Korde has invited my attention to the factors which have been determined by the Valuer and in that behalf he places reliance upon the answers to question nos.52 to 56. He has also ((-19-)) relied upon the comparison which is made by the Valuer as far as land under acquisition and the instance land. In that behalf, he places reliance upon the answers given to questions 91 and 95 during the course of cross examination. According to Shri Korde, all these answers will show that the report of Valuer and the statements made therein are not falsified. The Valuer has made a fair, just and independent assessment. He submits that once the lands under acquisition fall under residential zone with frontage to Jaiprakash Road, then the rate determined by the Valuer should be accepted by this Court. He submits that it is well settled that complete and total appreciation is not what is contemplated while determining market value. Ultimately, there is some element of guess work and that is permissible. Once the Valuer has not differed with the SLAO as regards basis and sale instance, but has assigned cogent and satisfactory reasons for not accepting the conclusions of SLAO for discarding the rate totally of the instance land, then, on the basis of the instance land, the valuation and the rate recommended by the Valuer deserves to be accepted. More so, when a comparison between the lands has been made by the Valuer in the report having regard to all ((-20-)) relevant factors. 24. Shri Korde has taken me through the cross examination insofar as the instance land. According to him, the cross examination suggests that the valuation report as also the sale instance should be discarded in toto because the price in the case of instance land was not fixed or determined at all. According to Shri Korde, this is not permissible. The valuation report and the contents thereof having not been falsified, then on the basis of some answers given by the Valuer to hypothetical questions, it cannot be said that price was not fixed in the case of instance land. Shri Korde submits that Valuer’s Report does not favour the claimants totally. Shri Korde submits that even the suggestion to the Valuer that considering the proximity of the lands under acquisition to sewerage plant would not carry the matter further. It does not favour the Acquiring Body. According to him, independent evidence ought to have been placed by MCGB so as to show that the sewerage plant is functional. It would dissuade a buyer from buying any immovable property adjacent to it. He submits that once again an answer to a hypothetical question without ((-21-)) positive evidence being led by the Acquiring Body, should not persuade this Court to discard the valuation report. 25. Shri Korde has also pointed out that on account of deferred payment facility the instance brought to the notice of the SLAO as well as Valuer and which is taken as comparable, should not be discarded. He, therefore, submits that there is no justification for scaling down the rate from Rs.7,135/- to Rs.2,500/- per sq.mtr. by the SLAO and the Valuer’s Report should be accepted. More so, in the absence of any evidence by Acquiring Body or SLAO for arriving at a lower rate. 26. Shri Korde’s submissions have been adopted by Shri Mody and additionally he has pointed out that plots are divided for convenience and for fetching maximum benefits. They, therefore, cannot be viewed as single ownership or divided between family members and in this behalf he invites my attention to paragraph no.15 of the evidence of Dilip Talsania. 27. Shri Mody appearing for claimant in LAR No.26 of 1991 states that she is distant relative ((-22-)) of Talsanias. He states that there is no scope for division and bifurcation. He has also supported the valuation done by the Valuer. He submits that it is true that entire Survey no.137 is not abutting on Jaiprakash Road. It may have proximity to the same. However, by an artificial division made, the market value of the land cannot be lowered as the idea always was to sell it as one plot. Merely because survey numbers have been given, that cannot be the basis for making distinction. He adopts the arguments of Shri Korde on the issue of proximity of the lands under acquisition to the sewerage plant. Finally, he submits that deductions made by the SLAO are