1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 604 OF 1995 The State of Maharashtra .. Appellant (Through the Special Land Acquisition Officer. (Orig.Opponent Metro Centre No.4, Panvel, District. Raigad v/s. Shri Prakash Vasudeo Deodhar .. Respondent ALONGWITH FIRST APPEAL NOS.605/1995 TO 621/1995, 22/1996 TO 24/1996, 561/1997, 388/89, 390/1989, 394/1989, 399/1989, 400/1989, 403/1989, 408/1989, 1366/1988, 706/1989, 1061/1989, 1065/1989, 1098/1989, 456/1991, 458/1991, 463/1991, 462/1991, 757/1992, 395/1993, 758/1992 FILED BY THE STATE. FIRST APPEAL NOS.1414/1996, 1429/1996, 1428/1996, 1423/1996, 1418/1996, 1427/1996, 1421/1996, 1415/1996, 1420/1996, 1430/1996, 1426/1996, 1422/1996, 1416/1996, 1419/1996, 1431/1996, 1417/1996, 1425/1996, 1424/1996, 1373/1996 TO 1383/1996, 1055/1989, 1056/1989, 665/1989, 1066/1989, 664/1989, 663/1989, 668/1989, 670/1989, 1092/1989, 1038/1989, 1045/1989, 1062/1989, 1064/1989, 119/1991, 1127/1991, 729/1991 FILED BY THE CLAIMANTS. AND CIVIL APPLICATION NOS. 4246/1995, 4243/1995, 4314/2005, 789/1990, 6099/94, 5781/1991, 5567/1992, 2214/2008, 2215/2008, 2 2216/2008, 4922/2003, 4923/2003 FILED BY THE STATE. CIVIL APPLICATION NOS. 3513/2007, 4858/2003, 1636/2007, 3732/2006, 3016/2003, 2219/2008, 4338/2003, 4853/2003, 4852/2003, 4265/2003, 939/2003, 670/1989, 4857/2003, 4070/2001, 3924/2001, 3932/2001, 4716/2003, FILED BY THE CLAIMANTS. AND CROSS OBJECTION ST. NOS. 33261/1997 AND 395/1993. Mr. K.K. Tated, Assistant Government Pleader for the State. Mr. R.V. Pai with Mr. S.M. Kamble for the claimants. Mr. N.P. Shimpi i/by Mr. P.K. Dhakephalkar for the respondent Nos.1A in F.A. No.388 of 1989. CORAM : SWATANTER KUMAR, C.J. & V.M. KANADE, J. Date of pronouncing the judgment : 2 nd June, 2008 Date of reserving the judgment : 12 th June, 2008 JUDGMENT (Per Swatanter Kumar, C.J.) By a common judgment dated 14th October, 1994, the learned District Judge, Raigad-Alibag at Alibag disposed of number of Land Acquisition References made to the court by the Collector under 3 section 18 of the Land Acquisition Act (hereinafter referred to as `the Act' ) and some petitions filed by the claimants under section 28A of the Act. While dealing with these references and petitions, the learned reference court enhanced the compensation payable to the claimants for acquisition of their respective lands to Rs.35/- per sq. mtr. for the land near to Highway while the lands situated beyond 1000 metres from Highway were awarded the compensation at the rate of Rs.25/- per sq.metre. The State Government felt aggrieved by the enhanced compensation awarded by the court to the claimants and have preferred 44 appeals and one cross-objection in claimant' s appeal against the said judgment. The claimants felt that they were entitled to even higher compensation and therefore, have also filed 46 appeals before this court besides one cross-objection in State appeal. All these appeals/cross-objections raise common questions of fact and law for determination. Therefore, we would dispose of all the 90 appeals and two cross-objections filed by the parties as noticed in the title of the judgment. 4 2. Now, we may notice the necessary facts giving rise to the present appeals. The State Government issued a notification under section 4 of the Act on 3rd February, 1970 intending to acquire lands from Panvel and Kamothe villages in Raigad district for the residential-commercial project to be developed by CIDCO. In furtherance to this notification, declaration under section 6 of the Act was issued on 11.1.1973 read with erratum dated 12th February, 1973. The Collector while exercising the power of Special Land Acquisition Officer after following due procedure prescribed under the provisions of the Act, made different awards during the period 1975 to 1985. The award under section 11 of the Act was declared during this period and compensation between Rs. 1.5 to Rs.10 per sq. metre was awarded. It appears from the record that petitions under sections 28A were also filed and further awards were passed on 16th September, 1987 with respect to 13 land acquisition proceedings and the compensation was awarded at the rate ranging from Rs.12 to Rs.18 per sq. meter. Dissatisfied with these awards, the claimants had made applications to the Collector for making references to the court 5 of competent jurisdiction under section 18 of the Act. The land reference Nos.110/89 to 117/89 and 119/89 to 123/89 were preferred by the claimants under section 28A(3) of the Act. As already noticed, all these proceedings were based upon the common evidence. The learned reference court while enhancing the compensation held as under: “40. The market value has also got fantastic bearing on the terms of payment or on the terms of considerations which has to be fixed in various sale transactions. Any commercial transaction, therefore, if having a weightage of deferred payment, the basis value of the immovable property thereunder shoots up even to the limit of sky with a noticiable difference and distinction. This has got to be considered as annexed with the impact of rate of interest. That is why the impact of interest on call money also has to be considered even while fixing the value of the lands so acquired. 41. To my mind Mr. Joglekar had followed the correct method while fixing the market value of these lands by an assessment of multiplier as demand versus supply. No doubt that this rule has also got exception of the case where the prices of such lands even in respect of small acquisition of lands or small pieces of lands such as land situate at Nariman Point or Bandra Complex, which has rightly been considered by Mr. Jogalekar while arriving at the conclusion of fixing the approximate value of these lands as at the 6 rate of Rs.60/- per square meter by treating all these pieces of lands at par. 42. The minimisation of distance from Churchgate to Panvel because of Thane Creek bridge by a distance of about 23 k.m.s. also has been correctly taken into account by Mr. Jogalekar in its proper perspective. Although Mr. Ambike had made a reference of this aspect in his valuation report he does not seem to have given due account to it at the time of actually fixing the rate of value. 43. Mr. Jogalekar has also rightly pointed out the mistake committed by the Special Land Acquisition Officer for fixing the value of these lands in between the rate of Rs.4/- to Rs.10/- per square meter. The Special Land Acquisition Officer appears to have not considered the effect of large scale acquisition of lands while fixing the rate of assessment at all. That is why a comment of Mr. Jogalekar on the capacity of this Special Land Acquisition Officer, assumes a full bearing and full importance when he said that the valuation of a large scale acquisition of the lands has to be done by a person who is the best expert or who has a foresight and nose for valuation. 44. It can only be said about the cross- examination of Mr. Jogalekar that it is only attempted by the Government to expose Mr. Jogalekar by comparing his valuation work with the work done by unexperienced hands of Special Land Acquisition Officer. It seems from the entire trend of cross- examination of Mr. Jogalekar that the work of expert for the Government, perhaps, had not then been completed so as to give data to the Government 7 Pleader to cross-examine the expert Mr. Jogalekar. That part, the importance and the ultimate impact of the work of valuation done by Mr. Jogalekar, therefore, does not lose its intrinsic value throughout his cross- examination and entire evidentiary value of the deposition of Mr. Jogalekar, therefore, remained unshaken and unfettered. 45. Now comes the question as to whether all these lands can be treated as at par as was done by Mr. Jogalekar while opining in the report that the lands could be assessed at the common rate of Rs.60/- per square metre, irrespective of their distance from the Highway. To my mind the distance from the National Highway of all these lands group wise will have a positive bearing and effect on the valuation to be annexed to each of these lands. 46. having considered, therefore, the reports of the two Experts viz. Mr. Shrikant Jogalekar and Prabhakar Ambike and further having considered the evidence led by the Claimants by producing various Judgments and various Valuation reports, I think that the lands can as well be classified in five groups. The lands which are situate just abutting the Highway and which are further situate within the distance of 300 metres from the Highway therefore, have been evaluated by me as at the rate of Rs.35/- (Rs. Thirty five) per square metre, while I fix the rate of valuation as at Rs.30/- per square metre for the lands which are situate within the distance of 300 meters to 1000 meters from the Highway and further fix the rate of Rs.25/- per square metre for other lands which are situate beyond the limits of 1000 meters from the Highway. The valuation of the lands of Kamothe has 8 been done by me in consonance with the distance of the lands from the Highway. The lands which are, therefore, found to be near Highway have been assessed by me ultimately at the rates of Rs.35/- per square metre while other lands of village Kamothe beyond the distance of 1000 metre have been assessed at the rate of Rs.25/- per square metre.” 3. We may also notice that during the pendency of the proceedings which have given rise to the present appeals, different judgments of this court had been pronounced in relation to the same acquisition and the two villages in question viz. Panvel and Kamothe. Reference in this regard can be made to a Division Bench judgment of this court in the case of The State of Maharashtra v. Bama Balu Tembhe, First Appeal No.382 of 1984, decided on 19th March, 1987, wherein the court had fixed the rate of compensation payable to the lands situated at village Panvel between Rs.14/- to Rs.16/- per sq. metre and similar compensation was awarded in respect of the lands situated at village Kamothe. In the case of Chairman, Jawahar Nagar Co-operative Housing Society Ltd. v. State of Maharashtra, 2001(4) Mh. L.J. 571, the Division Bench of this court after 9 considering various land acquisition references as well as the judgments of this court, awarded compensation at the rate of Rs.15/- per sq. metre for the lands situated in village Kamothe. In State of Maharashtra v. Ambaji Gopal Mali and others, First Appeal No.449 of 1986 decided by the Division Bench of this Court on 3rd July, 1986 the reference court had awarded compensation at the rate of Rs.15/- and in the case of State of Maharashtra v. Smt. Kamali Kashav Mhatre and others, 2005(1) All M.R. 459, another Division Bench of this court while considering all cases including the judgment in the case of Bama Balu Tembhe (supra), awarded compensation at the rate of Rs.25/- per sq.metre to the lands falling within 750 metres of the National Highway, at the rate of Rs.23/- per sq. metre for the lands falling between 750 and 1500 metres and in respect of the third category, at the rate of Rs.21/- per sq. metre for the lands beyond 1500 metres. It will be useful at this stage itself to notice the finding recorded by the Division Bench: “ 6. We now come to the last issue in so far as the fixation of market value is concerned. As we have noted earlier, the Reference Court for the purpose of 10 fixing market value, categorised the land into four groups and accordingly awarded compensation ranging between Rs.15/- to Rs.25/-. In respect of the very same notification various other awards were made by the Reference Court and in respect of which several appeals had come up before this Court, being First Appeal No.754 of 1986 alongwith other appeals which came to be disposed of by a learned Division Bench of this Court (S.W. Puranik & D.J. Moharir, JJ.) on 25- 26.02.1993. The lands involved there were situated within the Municipal limits of Panvel and Kamothe. After considering the material which had come on record including earlier awards made in the year 1966, the learned Division Bench divided the land into Group 1, Group 2, Group 3, Group 4A and Group 4B. In respect of the first group it awarded Rs.25/-, in the second group it awarded Rs.23/-, i the third group it awarded Rs.22/- and in the fourth (A) and (B) group it awarded Rs.20/- each. Against the judgment of the Division Bench SLP was preferred by the State Government, which was rejected. Another group of appeals being First Appeal No.382 of 1984 came up before another Division Bench of the Court (Shah & Kotwal, JJ) which were disposed of by judgment pronounced between 03.03.1987 and 19.03.1987. The area included Panvel Village, Asudgaon village, Kamote Village and Kalamboli Village. The Division Bench noted that it is on record and not in dispute that Panvel is located on the Bombay-Pune National Highway, where the lands have acquired non-agricultural potentialities. It had become a centre for local trade and commerce. It is also a place of Taluka headquarter having a Municipality for a very long time. The lands under 11 acquisition are in the extended Municipal area, which is quite adjacent and practically encircling Panvel Town which has commercial activities and educational facilities. The Bombay-Pune Road and Diva-Panvel railway pass through this area. At a short distance to the east of Bombay-Pune National Highway within the extended Municipal limits lies the Industrial Estate where 35 factories are located. There is also a Co- operative Housing Society called Cosmopolitan Co- operative Society which has purchased lands for construction of houses for its members. Abutting the National Highway at some distance to the north of the Industrial estate is the factory of Jenson & Nicholson in existence for over six years prior to the notification under section 4. A few years prior to the present acquisition, lands had been acquired for the S.T. bus stand, chowkidars' quarters and so on. To the south of the acquired area is the junction of the two National Highways viz. Bombay, Pune and Bombay-Konkan- Goa road, hardly at a distance of two kms., proceeding to the north there is the junction of two major highways viz. Bombay-Pune Highway and Sion-Pune Highway. Various other aspects were also noted. It was urged by Mr. Paranjape, appearing for the claimants in that appeal that the distance of the National Highway should be the sole criteria for fixing the market value of each of the acquired lands. The learned Division Bench noted that cannot be the only criteria for fixing the market value though there is no doubt that the proximity of land from the road would be a very relevant consideration alongwith other factors for determination of the market value. The Division Bench noted that in their opinion several other factors such as the already existing non-agricultural development of the trend or possibility of further development in a 12 particular direction or locality has to be taken into account alongwith the advantage of nearness of the land to the highway, and based on this the learned Division Bench fixed the compensation. ............................. 8. The first group will consist of the lands situated within 750 mts. of the National Highway where the market value is fixed at Rs.28/-. Considering 10% deduction and rounding the figure we fix the market value at Rs.25/-. This will be the market value for all such lands in the group of appeals. The second group will consist of lands situated between 750 and 1500 sq. mts. In respect of these lands we fix the market value at Rs.26/-. Considering 10% deduction and rounding up the figure we fix the market value at Rs.23/- per sq. mt. The third category will include the lands beyond 1500 sq. mt. We fix the market value of these lands at Rs.23.50 p. and after deducting 10% and rounding the figure, fix the market value at Rs.21/-.” 4. It is the common case of the parties before us that substantially the evidence led by the parties in the present case is similar to the evidence that had been led by the parties in the previous land references. However, the valuation reports, Exhibit 30 and 13 Exhibit 49, were proved in accordance with law in the present case. While Exhibit 30 has been submitted by Modak Pangarkar Architects Pvt. Ltd. on behalf of the Claimants, Exhibit 49 has been submitted by Ambike Consultants, Engineering and Managing Consultants and Government Approved Valuers on behalf of CIDCO. Both these valuation reports were considered and discussed in the impugned judgment and despite the fact that under Exhibit 30 the market value of the land was stated to be Rs.60/- per sq. mtr. as on 3rd February 1970, according to Exhibit 49 the land was divided into three different categories and the market value of the lands was stated to be Rs.11/-, Rs.14/-, Rs.16/- and Rs.18/- per sq. mtr., depending on the frontage on the National Highway and still awarded the compensation at the rate of Rs.35/- and Rs.25/- per sq. mtr. respectively. 5. The correctness of the above findings of the Reference Court have been questioned on behalf of the State, inter alia, on the grounds : (a) the determination of fair market value at the rate of Rs.35/- per sq. mtr. particularly is based on no evidence and in fact 14 the land Reference Court has fallen in error of appreciation of evidence in awarding such high compensation. According to the Respondent State, the compensation could not in any case exceed Rs.16/- per sq. mtr. as awarded in First Appeal No.382 of 1984 in the case of Bama Balu Tembhe (supra). (b) Wherever the award was made prior to the amendment of the provisions of Section 23(1-A) i.e. 30th April 1982 the Claimants are not entitled to the benefit of the said provisions in accordance with the judgment of the Supreme Court. In the present case, some of the awards were made right from 1976 to 11st March 1982 and in support of this contention the Division Bench judgment of this Court in the case of Smt.Kamali Keshav Mhatre (supra) is relied upon. (c) According to the appellants, the lands in the present case are also situated at quite a distance from the National Highway and, therefore, the learned reference court could not have awarded compensation either at the rate of Rs.35/- or Rs.25/- per sq.mtr. while applying the belting system to different kind of lands. 15 6. Now we will proceed to discuss, though collectively, the merit or otherwise of these contentions. It may be noticed here that the Claimants who have filed Petitions under Section 28 of the Act had originally claimed compensation only at the rate of Rs.25/- per sq. mtr. but during the pendency of the Reference/determination proceedings, application for amendment was filed which was allowed by the Reference Court vide its order dated 3rd December 1992 and the Claimants by way of amendment claimed compensation at the rate of Rs.60/- per sq. mtr as valued by their Valuer. Exhibit 49 was proved by P.S. Ambike whose statement is at Exhibit 45, while Exhibit 30 was proved by S.V. Joglekar whose statement is Exhibit 29. Both these experts were called by the respective parties and to a limited extent they are expected to support the case of their respective clients. While Exhibit 30 indicates the value of the land as Rs.60/- per sq. mtr., Exhibit 49 declares the market value of the land on the same data between Rs.11/- to Rs.18/- per sq. mtr. One report is declaring excessive market value, while the other is much on the lower side. Even if both these reports which are stated to be supported by 16 certain instances and data are considered, the average market value would come anywhere between Rs.29/- to Rs.34/- per sq. mtr. The reports of the experts were discussed by the Land Reference Court and after noticing their statements in examination in chief and the cross-examination, discarded the evidence of the expert Mr. Ambike, led on behalf of the Government in paragraph 34 of the judgment. We have no reason to differ with the view taken by the Reference Court in this regard. However, as already noticed, even on the basis of average of these two reports, the value of the land can at best be said to be ranging between Rs.29/- to Rs.34/- per sq. mtr. depending on the location and utility of the lands in question. This we are merely noticing for reference purpose and would not like to base our findings in relation to fair market value of the land on these reports. 7. In First Appeal No.382 of 1984 it was specifically noticed by the Bench that the lands in those cases were situated away from the National Highway and, therefore, they were awarded compensation at the rate of Rs.14,/- to Rs.16/- per sq. mtr. in relation to the lands 17 situated in the revenue estate of Village Panvel and Kamothe. At pages 121 and 122 of the judgment of the Division Bench in First Appeal No.382 of 1984, it was specifically noticed that the piece of land involved in those cases was near to Sion-Panvel road but was far away from Highway. The lands there were also far away from Jawahar Industrial Estate and the distance was more than 900 mtrs. In any case, the judgment of this Court in the case of Ambaji Gopal Mali (supra), the compensation of Rs.15/- as awarded by the Reference Court was interfered by the Division Bench of this Court and even Appeal preferred by the State against that order before the Supreme Court was dismissed. Both these judgments along with other land references relating to the same land and Notification were considered in detail with regard to different judgments of the Supreme Court as well by the Division Bench of this Court in the case of Smt.Kamali Keshav Mhatre and compensation varying from Rs.21/- to Rs.25/- by categorising the lands into three categories was awarded by the Court. That judgment has also attained finality as the State has not challenged the said judgment before the Court of competent 18 jurisdiction and we are informed that the compensation in terms of that judgment has already been paid to the Claimants. 8. From the records of the Reference Court, it appears that no new sale instances had ever been produced or proved by the parties and the evidence was restricted to the awards filed on record and the evidence of the experts. In face of the limited evidence led by the parties, the earlier awards filed on record can be a good precedent for determining the fair market value of land in question. It is a settled principle of law that the earlier awards and judgments of the Courts can be a good guide for determining the market value of the land as on the date of Notification. Reference can be made to the judgment of the Supreme Court in the case of Karan Singh vs. Union of India, 1997 (8)SCC 186. In the case of Kamali Keshav Mhatre(supra), the lands were located near to the National Highway and this fact was clearly noticed by the Court in its judgment. In that case, the land had been categorised into three different categories, one falling within 750 metres of the National Highway, lands falling within 750 to 1500 19 metres and lands beyond 1500 metres. They were awarded compensation at the rate of Rs.25/-, Rs.23/- and Rs.21/- respectively. This judgment of the Division bench was pronounced on 31st March 2004 while the judgment of the Reference Court under Appeal was made on 14th October 1994. Obviously the Land Reference Court did not have the benefit of perusing the judgment of the Division Bench of this Court being a judgment subsequent to the date of pronouncement of the award of the Reference Court. The Land Reference Court has not discussed any evidence on the basis of which it has arrived at the figure of Rs.35/- per sq.