IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.206 OF 1992. APPEAL NO.206 OF 1992. APPEAL NO.206 OF 1992. The State of Maharashtra ...Appellant Versus. Smt.Sharadabai Ganesh Oze ...Respondent Shri B.H.Mehta, A.G.P for the Appellant. None for the Respondent. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 12th MARCH, 2008. : 12th MARCH, 2008. : 12th MARCH, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard learned Assistant Government Pleader for the appellant. None appears for the respondent. 2. The challenge in this appeal preferred by the State of Maharashtra is to the judgment and award dated 03rd May, 1990 passed by the learned Joint Civil Judge Senior Division, Raigad at Alibag. The said judgment and award has been made in a reference under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act). The acquired land is situated at village Karanjade, Taluka Panvel, District Raigad which was notified for acquisition under section 4 of the said Act on 03rd February, 1970. The acquisition was for New Bombay project. The award was made under section 11 of the said Act on 23rd September, 1986. In the reference under section 18 of the said Act, respondent-claimant claimed market value at the rate of Rs.20/- per sq meter. By the impugned judgment and award, the : 2 : 2 : 2 : reference Court fixed the market value at the rate of Rs.15/- per sq meter. 3. The learned A.G.P submitted this is a case where there was no evidence adduced by the respondent-claimant of the comparable sale instances and therefore, there was no justification for fixing the market value at the rate of Rs.15/- per sq meter. He pointed out a decision of this Court in the case of State of Maharashtra Vs. Ismail Abdul Rehman (First Appeal No.30 of 1993) decided on 21st April, 2006. 4. I have carefully considered the submissions. Perusal of the judgment of this Court in First Appeal No.30 of 1993 shows that this Court was dealing with an appeal arising out of an award made under section 18 of the said Act relating to a land at village Karanjade, Taluka Panvel, District Raigad which was notified under the same notification dated 03rd February, 1970 for the same public purpose. In the said case before this Court, the reference Court had fixed the market value at the rate of Rs.13/- per sq meter. The rate fixed by the reference Court was affirmed by this Court. 5. In the reference subject matter of the said decision of this Court the claimant had examined Shri Jeevan Narayan Kulkarni as a valuer. In the judgment, : 3 : 3 : 3 : this Court noted that Shri Kulkarni admitted that a comparable sale instance of land at village Karanjade was not available. This Court found that Shri Kulkarni admitted that none of the lands from village Karanjade were converted for non-agricultural use. 6. Turning to the present case, the same valuer Shri Jeevan Narayan Kulkarni was examined by the respondent as an expert witness. Perusal of the evidence of the said expert witness and his report which is admitted in evidence shows that the expert could not refer to any comparable sale instance at village Karanjade. Shri Kulkarni admitted that the land was at a distance of 2240 meters from Bombay-Pune Highway. 7. In the decision in First Appeal No.30 of 1993, this Court was dealing with a case where the acquired land was at a distance of 1760 meters from Bombay-Pune National Highway. For such a land in the same village, this Court found that the market value fixed by the reference Court at the rate of Rs.13/- per sq meter was just and reasonable. 8. On 03rd February, 1970 practically all lands at village Karanjade notified for acquisition were agricultural lands. Therefore, the decision of this Court in First Appeal No.30 of 1993 will govern the : 4 : 4 : 4 : present case. Hence, market value will have to be fixed at the rate of Rs.12/- per sq meter for the acquired land at the distance of 2240 meters from the said highway as the land subject matter of the aforesaid appeal was at a distance of 1760 meters from the said disputes. 9. Perusal of the impugned award shows that the interest granted under section 28 of the said Act is not in conformity with provisions of section 28 of the said Act. For the first year the interest will have to be at the rate of 9% per annum and for subsequent years the interest has to be at the rate of 15% per annum. The settled position of law is that it is mandatory to grant interest at the rates prescribed by section 28 wherever section 28 of the Act is applicable. Since benefit under section 28 of the said Act is a statutory benefit, the powers under Rule 33 of Order XLI of Code of Civil Procedure, 1908 will have to be exercised and operative part of the award will have to be modified. 10. Hence, I pass the following order: (i) The appeal is partly allowed to the extent that the market value of the land will be Rs.12/- per sq meter instead of Rs.15/- per sq meter. It is made clear that the claimant : 5 : 5 : 5 : will be entitled to statutory benefits under section 23(1-A), 23(2) and section 28 of the Land Acquisition Act, 1894. It is made clear that interest payable under section 28 of the said Act will be at the rates of 9% and 15% respectively as provided in the Statute. (ii) The claimant will be entitled to proportionate costs of the reference. There will be no orders as to costs in the present appeal. (iii) The reference Court will complete the exercise of calculating compensation amount payable to the respondent within a period of four months from the date of receipt of the writ of this order. Judge. Judge. Judge.