ash 1 fa-841.94withXobjst-8398.95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 841 OF 1994 WITH CROSS OBJECTION ST. NO. 8398 OF 1995 The State of Maharashtra .. Appellant Vs Janardan Atmaram Bhagat & Others. .. Respondents -- Shri A.R. Patil, AGP for the Appellant. Shri Rajiv L.Patil for the Respondents. -- CORAM : A.S. OKA, J DATED : 20TH JANUARY, 2011 ORAL JUDGMENT : . By this Appeal the Appellant – State of Maharashtra has taken an exception to the Judgment and Award dated 31st July, 1993 passed by the learned Additional District Judge, Raigad-Alibag in a Reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act” ). The acquisition relates to the lands totally admeasuring 12750 sq. metres situate at Revenue Village Gavan, Taluka – Panvel, District – Raigad. The land was notified on 3rd February, 1970 under Section 4 of the said Act for the purposes of setting up satellite city of New Bombay. An Award under Section 11 of the said Act was made on 17th September, 1986. The Respondents did not accept the market value and therefore, a reference was made at their instance. The Respondents claimed market value at Rs.60,000 to Rs.65,000/- per Acre. By the impugned judgment and award, ash 2 fa-841.94withXobjst-8398.95 the Reference Court held that the market value of the acquired land was Rs.8/- per sq. metre. Apart from the market value, the learned Judge granted statutory benefits under Sections 23(1-A), 23(2) and 28 of the said Act. There is a Cross Objection filed by the Respondents- claimants by which they have claimed total market value at the rate of Rs.12/- per sq. metre. The learned AGP appearing for the State of Maharashtra has taken the Court through the notes of evidence and documentary evidence on record. His submission is that the village Gavan was far away from the old and New Bombay Pune Highway, and it was not accessible by any major road. He pointed out that the evidence on record disclosed that most of the lands under the said village were khar lands and there were hardly any civil amenities available in the said village. He submitted that the claimants did not produce any comparable sale instance of the land in the village Gavan and the opinion of the Valuer is based on the sale instances and decisions of the Court relating to the lands from other villages. He submitted that the Respondents did not discharge the burden of establishing that the market value of the lands offered by the Special Land Acquisition Officer was inadequate. 2. Learned counsel appearing for the Respondents submitted that there was acquisition of lands in various villages from Taluka Panvel District Raigad for the project of New Bombay by notifying the lands on 3rd February, 1970. He pointed out that in case of adjoining villages of Ulwa and Sonkhar, in case of the similarly situated lands, this Court has already fixed the market value as Rs.12/- per sq. metre. He pointed out that the evidence of the Valuer shows that the village Targhar was the closest village to village Gavan as compared to other village i.e. ash 3 fa-841.94withXobjst-8398.95 Sonkhar. He relied upon the decision of this Court where in respect of the land at Targhar which was notified on the same date for the same public purpose where the market value at Rs.12/- per sq. metre was fixed. He, therefore, submitted that in any case the market value will be at a minimum rate of Rs.12/- per sq. metre. The learned AGP pointed out that there is an admission of the claimants that the water used to accumulate on the acquired land and, therefore, some deduction will have to be made on the said count. 3. I have given careful consideration to the submission. In the case of Avinash Dhavaji Naik vs. State of Maharashtra, [ (2009) 11 SCC 171 ], the Apex Court dealt with an appeal arising out of a reference under Section 18 of the said Act in respect of the land situate at village Wahal in Taluka Panvel, District Raigad which was also notified under the said notification dated 3rd February, 1970 for the same public purpose. The Apex Court has noted the admitted factual position that large tracts of lands situated in 96 villages in Raigad and Thane District were subject matter of notifications for acquisition issued in the year 1970 for the public purpose of setting up satellite city of New Bombay. 4. In the light of the fact that there was such acquisition of vast tracts of lands from 96 revenue villages, the evidence will have to be appreciated. One of the claimants stepped into the witness box. He deposed that in the village Gavan, electricity was available in the year 1970 and transportation by way of State Transport Buses and launch was also available. He deposed that there was a port in the village Gavan and also in village Ulwa. He stated that Gavan Port is at a ash 4 fa-841.94withXobjst-8398.95 distance of 5 minutes walk from the land under reference. The witness pointed out that from south side of the village, railway line passes at a distance of 3 km. He has deposed about the existence of facilities such as market and high school in the village. In the cross-examination, he has stated that water has been accumulating in the acquired land. The Respondents also examined one Mr. Jeevan Kulkarni, Valuer, who was holding a degree of B.E. Civil and Diploma in Town and Country Planning. He stated that he was associate member of Institute of Town Planner and and fellow member of Institute of Valuer and he was a Government Approved Valuer. He stated that he was Class-I Officer of the State Government holding the post of Assistant Director of Town Planning. He inspected the acquired land on 22nd September, 1987. He stated that prior to 1970 all the lands in the village Gavan were included in Regional Plan for Greater Bombay prepared by the Town Planning Department. He relied upon the sale instances and decisions of the Court relating to the lands at villages Ulwa and Sonkhar. He stated that village Sonkhar is at a distant of 1600 metres from the village Gavan and the village Ulwa is at a distance of 2 km from the village Gavan. He pointed out that the village Targhar is at a distance of 1440 metres towards North. In the examination-in-chief, Shri Kulkarni stated that the topography of the acquired lands in the Village Gavan and the acquired lands in the village Sonkhar is more or less identical. This is the version of the witness examined by the Claimants themselves. Sonkhar is one of those 96 villages from which the lands were acquired for the purposes of New Bombay Project. It is well settled law that when sale instances of comparable lands in the village are not available, the instances of sale in respect of comparable lands situated in the neighbouring villages can be also taken as the basis for determination of the ash 5 fa-841.94withXobjst-8398.95 market value. The said law has been laid down in various decisions including a decision of the Apex Court in the case of ONGC Limited Vs. Sendhabhai Vastram Patel & Others, [(2005) 6 SCC 454]. The version of Shri Kulkarni in the examination-in-chief that the topography of the acquired lands at villages Gavan and Sonkhar is more or less identical has not been challenged in the cross examination. Therefore, the market value of the acquired lands in the village Sonkhar which were notified under the Notification dated 3rd February, 1970 can be the basis for determination of the market value of the acquired land. As held by the Apex Court repeatedly and even in the case of Avinash Dhavaji Naik (supra), while determining the market value under Section 23 of the said Act, an element of guess work is always there. As far as the village Sonkhar is concerned, there is a decision of this Court dated 11th March, 2008 in First Appeal No.566 of 1991 and First Appeal No. 732 of 1991 which deals with the acquisition of land admeasuring 11310 sq. metres situated in Village Sonkhar, Taluka Panvel, District Raigad, under the notification of the same date for the same purpose. This Court came to the conclusion that the market value of the land was Rs.12/- per sq. metre. The said decision has become final. Incidentally it must be noted that even in the case of village Turbhe, this Court has fixed the market value at the rate of Rs.12/- per sq. metre. 5. The submission of the learned AGP is that some deduction should be made on account of the fact that there is an admission that water used to get accumulated on the acquired land. As pointed out earlier, lands in total 96 revenue villages were notified for the same public purpose. Most of the lands were agricultural lands. It is not in dispute that even the plan annexed to the report of the ash 6 fa-841.94withXobjst-8398.95 valuer shows that many villages including the villages Gavan and Sonkhar are situated near creek and, therefore, the expert has stated that the lands in the village were Khar lands. That is the position obtaining in respect of the lands even in some of the surrounding villages abutting the creek including village Sonkhar. The accumulation of water has a direct nexus to the fact that the lands in the village were close to a creek. Once it is found that the comparable agricultural lands in the adjoining village Sonkhar notified on the same day for the same public purpose have been granted market value at the rate of Rs.12/- per sq. metre, there is no reason why any departure should be made from the said rate. There is another important aspect in the cross-examination of the claimant Prakash Bhagat. It was brought on record in his cross-examination that the acquired land was a paddy land. In the circumstances, the market value of the acquired land will have to be fixed at Rs.12/- per sq. metre. As the award under Section 11 of the said Act was made on 17th September, 1986, there cannot be any dispute regarding grant of statutory benefits under the said Act. 6. Hence, the Appeal must fail and the Cross Objection must succeed. Hence, I pass the following order. ORDER (i) First Appeal No. 841 of 1994 is dismissed with no orders as to costs. ash 7 fa-841.94withXobjst-8398.95 (ii) Cross Objection Stamp No. 8395 of 1995 is allowed. The total market value of the acquired land shall Rs.12/- per sq. metre inclusive of the market value offered by the Special Land Acquisition Officer. (iii) In addition to the market value, the Claimants will be entitled to statutory benefits under Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894. (iv) The Original Claimants will be entitled to proportionate costs of the Reference and the Cross Objection. (v) Exercise of computing the compensation payable to the Claimants in terms of the modified award shall be carried out by the Reference Court within a period of three months from the date on which the writ of this Judgment is received by the said Court. JUDGE