1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.576 OF 2003 IN LAND ACQUISITION REFERENCE NO.1 OF 1998 IN CASE NO.E & Cs.7 AND NOTICE OF MOTION NO.458 OF 2009 IN APPEAL NO.576 OF 2003 1.The Special Land Acquisition officer, MHADA, Fort, Mumbai And another. ...Appellants Vs. Trustee of Hazi Kasam Agbotwala Charities. ...Respondent. --- Mr.Bharat Mehta, AGP for appellants. Mr.C.M.Korde, Sr.Counsel with Milind Jadhav i/b. M/s.Desai & Diwanji, for Respondents. AND CROSS OBJECTION (LODG) NO.6 OF 2003 1.The Special Land Acquisition officer, MHADA, Fort, Mumbai And another. ...Appellants Vs. Trustee of Hazi Kasam Agbotwala Charities. ...Respondent. --- 2 Mr.C.M.Korde, Sr.Counsel with Milind Jadhav i/b. M/s.Desai & Diwanji, for Appellant. Mr.Bharat Mehta, AGP for Respondents. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 2nd February, 2009. P.C.:- 1. This appeal has been filed by the Special Land Acquisition officer and the cross objection has been filed by the original claimants challenging the judgment and order passed by the learned Single Judge of this Court dated 31.8.2001 in Land Acquisition Reference No.1 of 1998. A notification under Section 4 of the Land Acquisition Act was issued on 24.12.1992 for the purpose of acquisition of the property which is part of the ground floor premises of a building known as Muzfarabad Hall admeasuring 185.20 square meters (2000 sq.ft.) forming part of C.T.S.No.1220 of Girgaon Division. The property is owned by a charitable trust which is respondent in the appeal. The property was acquired for public purpose namely for housing a rationing office. 3 Section 6 notification was issued on 23.1.1993. The Special Land Acquisition officer made an Award determining the compensation at Rs.43,40,000/- at the rate of Rs.2170/- per sq.ft. The owner of the land being dissatisfied with the Award, has made an application under Section 18 of the Act for reference. Accordingly, reference proceedings were registered in this Court as Land Acquisition Reference no.1 of 1998. In the reference, the land owner examined the Valuer by name Harshad Sunderlal Maniar and also examined one of the trustees as his witness. There was no evidence led on behalf of the Special Land Acquisition Officer. The learned Single Judge found that the sale instance in relation to the premises of Bhupati Chambers is comparable sale instance and therefore, considering the price paid in relation to that property, the learned Single Judge has held that the compensation at the rate of Rs.4028.33 per sq.ft. as against the compensation fixed by the Special Land Acquisition Officer at the rate of Rs.2170/- per sq.ft. will be the adequate compensation. The learned Single Judge has also issued directions for payment of other amounts which are to be paid in accordance with the Statute. The Special Land Acquisition Officer feeling aggrieved by 4 the enhancement of the rate awarded by the learned Single Judge, has filed the appeal challenging the judgment and order of the learned Single Judge. The land owner has filed cross objections mainly challenging the deduction allowed, in the rate at which the property at Bhupati Chamber was sold, by the learned Single Judge on account of the suit premises being in dilapidated condition, whereas the premises in Bhupati Chamber being good condition. 2. We have heard the learned Counsel appearing for both the sides. The learned Counsel appearing for appellant submits that it has come on record that the premises which were the subject matter of sale in Bhupati Chambers were the premises in good condition and were ready for occupation, whereas the suit premises were in extremely dilapidated condition. It has come on record that they were not capable of being occupied unless reconstructed. According to the learned Counsel, therefore, reduction in the rate at only 30% allowed by the learned Single Judge, is not adequate. The learned Counsel also took us through the evidence of the Valuer to contend that the property was in extremely dilapidated condition, and therefore, the learned Single Judge should have taken 5 into consideration the fact that the entire premises will have to be reconstructed. The learned Counsel appearing for claimants supported the Award but submitted that the learned Single Judge could not have deducted 30% from the rate at which the premises of Bhupati Chambers were sold. According to the learned Counsel, the deduction of 30% is excessive. 3. Now in the light of these rival submissions, if the record is perused, it is seen that the learned Single Judge has found that the sale instance in relation to the premises in Bhupati Chambers is comparable. In so far as the transaction in relation to the premises in Bhupati Chambers is concerned, the transaction is of March,1991 and the premises have been sold at the rate of Rs.4719/- per sq.ft. Perusal of the order of the learned Single Judge shows that he has made the deduction of 30% in the price because the premises at Bhupati chambers were in good condition whereas the acquired property was in dilapidated condition. In our opinion, if the appellant wanted the learned Single Judge to deduct actual cost of construction that was required to be incurred by the Government for using the premises then it was for the Government to lead evidence and 6 establish before the learned Single Judge as to what would be the appropriate percentage to be deducted from the price paid for the premises at Bhupati Chamber. In our opinion, therefore, the learned Single Judge was perfectly justified, in the absence of any rebuttal evidence being led, in allowing deduction of 30%. In our opinion, the learned Single Judge has rightly considered the matter. The observations of the learned Single Judge in paragraph 12, in our opinion, are relevant, they read as under:- “12. The acquiring body not having laid any evidence, the rate given in the Award in respect of Pitale Mansion cannot be relied upon. Out of three sale instances cited by maniar only one instance i.e. the instance of the sale of premises in Bhupati Chambers, being available for comparision, the market value of the acquired premises will have to be determined with reference to that instance. As observed in Bhagawathula Vs. Special Tahshildar and Land Acquisition officer (1191) 4 Supreme Court Cases 506, “the land value can differ depending upon the extent and nature of the land sold. While comparing the price shown in the 7 transactions all variables have to be taken into consideration.” The acquired land admeasures 2000 sq.ft. whereas the premises in the sale instance of Bhupati Chambers admeasure 5086 sq.ft. But this difference in the size of both the properties is not very material. What is material to note is that both the properties are not far from each other and both are situated in commercial locality were all civic amenities are available. The rate at which the premises in Bhupati Chambers were sold in March 1991 is Rs.4719 per sq.ft. However, considering the fact that the acquired property was in a dilapidated condition, a deduction of 30% in the rate would be proper and justifiable. Consequently, the market rate of the acquired property comes to Rs.4719 – Rs.1414.70 = 3305.30. To this amount an annual increase at the rate of 12.5% deserves to be added on account of rise in the prices of properties. The instance sale transaction took place on 27.3.1991 and the notification u/s.4 of the Act in respect of the acquired property was published on 13.1.1993. Therefore, rise in the price for the period of 1 year and 9 months will have to be added to Rs.3305.30. Thus the market price of the acquired property as on the 8 relevant date comes to Rs.4028.30 (Rs. 3305.39 + Rs.413.16 = Rs.3718.46 for 1 year's period and Rs.3718.46 + Rs.309.87 for 9 months period = Rs.4028.33.” We find that every aspect that was relevant has been taken into consideration by the learned Single Judge for determining the market price of the land. We find that the sale instance of the premises in Bhupati Chamber was of March,1991 and Section 4 notification was in the month of January,1993, and therefore, the learned Single Judge is justified in saying that from the point of view of the date of sale and the date with reference to which the compensation was to be determined, it is comparable. The learned Single Judge has also considered the situation of the property and has found that the premises are located in the same locality and from that point of view also they are comparable. In our opinion, the criticism against the deduction of 30% from the rate which was paid in relation to the premises in Bhupati Chambers on behalf of the claimant is not justified. We do not find any evidence being led also by the claimant as to how much would be the reasonable rate to deduct because the premises in Bhupati Chambers were in good 9 condition and were ready for occupation whereas the premises which were to be acquired were in dilapidated condition and could not be occupied without reconstruction. 4. Taking overall view of the matter, therefore, the conclusion reached by the learned Single Judge is a possible conclusion to be reached on the basis of material available on record and we find no fault with the conclusion reached and therefore, in our opinion, there is no reason to interfere with the judgment and order impugned in the appeal. Appeal and the Cross objection fail and are dismissed. By consent of parties, it is directed that after expiry of period of Eight Weeks from today, the office shall permit the claimants to withdraw the amount which has been deposited by the appellants to the credit of this appeal alongwith the accruals. (D.K.DESHMUKH, J.) (A.A.SAYED,J.) ---