1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 493 OF 2001 Mahamad Parveji Jiyauddin Khalifa Parwin Jiyauddin Khalifa Tasanim Jiyauddin Khalifa Tanwir Jiyauddin Khalifa ..Appellants (Org. Claimants ) versus Special Land Acquisition Officer, Metro Centre No.5, Panvel ..Respondent (Org. Opponent) Mr. A.N.Maniar for the Appellants. Ms.S.P.Manchekar, AGP for the respondents With FIRST APPEAL NO. 282 OF 2000 Special Land Acquisition Officer, Metro Centre No.5, Panvel ..Appellant (Org. Opponent) 2 Versus Mahamad Parveji Jiyauddin Khalifa Parwin Jiyauddin Khalifa Tasanim Jiyauddin Khalifa Tanwir Jiyauddin Khalifa ..Respondents (Org. Claimants ) Mrs. Manchekar AGP for the State Mr.A.N.Maniar for the respondents CORAM : R.Y.GANOO, J. DATE : 16th JUNE, 2009. ORAL JUDGMENT: 1. By Civil Application No.2247 of 2009 heirs of appellant No.1 in First Appeal No.493 of 2001 have been brought on record and amendment is carried out. The state of Maharashtra in their First Appeal No.282 of 2000 have not brought on record heirs of respondent No.1. Smt. Sugrabi. To that extent the appeal abates against Original respondent No.1 Smt.Sugrabi. However, this has nothing to do with the merits of the matter. 3 2. The Appellants in First Appeal No.493 of 2001 are the owners in respect of lands bearing Survey No. 49/1 and 49/2 situated at Village Taloja Pachanand, District Raigad. Both these lands taken together admeasured 5830 sq. meters. The State of Maharashtra acquired these two lands (for short Suit Lands) in according with the provisions of Land Acquisition Act (for short Said Act ) and the Land Acquisition Officer awarded compensation at the rate of Rs.5/- per sq. meter for the land bearing Survey No.49/2 and Rs.3/- per sq. meter for the land bearing Survey NO.49/1. The land owners shall herefter be referred as Appellants and State of Maharashtra as Respondents. Being aggrieved by this award, the appellants filed Reference under Section 18 of the said Act and the said reference came to be assigned to the Court of learned Joint District Judge, Raigad at Alibag (hereafter referred to as learned District Judge) and it was numbered as Land Acquisition Reference NO.255 of 1987. The learned District Judge by his Judgment and Decree dated 24.10.1997 granted 4 compensation at the rate of Rs.15/- per sq. meter for both the suit lands and that he also granted other benefits such a solatium, interest etc. 3. Being aggrieved by the judgment and decree dated 24.10.1997, as mentioned aforesaid, the appellants instituted First Appeal No.493 of 2001 thereby challenging the grant at the rate of Rs.15/- per sq. mt. as they expected an amount atleast at the rate of Rs.40/- per sq. meter. The State of Maharashtra were equally aggrieved by the Judgment dated 24.10.1997 as according to them the rate granted at Rs.15/- per sq. meter was excessive and the State of Maharashtra filed First Appeal No.282 of 2002. Since the impugned judgment dated 24.10.1997 came to be challenged in both these first appeals, both these first appeals were taken together for hearing. 4. Learned Advocate Mr.Maniar appeared on behalf of the appellants and Mrs. Manchekar appeared on behalf of the Respondent State. 5 5. At the stage of disposal of the reference, on behalf of the appellants Mr.Mahamad Ali Abdul Karim stepped into the witness box who was Power of Attorney of all the claimants. One Mr. Dhananjay S. Ranade who was Architect and Valuer was examined on behalf of the appellants. He had submitted his valuation report. Said Ranade had recommended that rate at Rs.40/- per sq. meter should be granted to the appellants. The learned District Judge considered the evidence on record and enhanced the compensation so as to grant rate at Rs.15/- per sq. meter. Before this Court, learned Advocate Mr. Maniar appearing on behalf of the appellants in the first place contended that it is a well settled principle that the distance from the land in question qua the Highway or the Main Road has always been the point for the purpose of deciding the rate to be awarded. He also submitted that if the land in question is close to the railway station, that also is the point which is required to be considered while fixing the rate. He also submitted that other aspects such as chances of the land being 6 developed in the near future is also required to be gone into and after considering the various aspects the Court has to fix the valuation of the land in question. 6. Learned Advocate Mr. Maniar took me through the valuation Report of Mr.Ranade and had drawn my attention to the evidence of Mr. Ranade in cross examination where he has stated that the land in question was within the distance of 70 meters from the highway. My attention was also drawn to the evidence of Mr.Ranade where it is mentioned that the National Highway No.4 passes through Taloja. He had also submitted that the lands in question were at lower level than the highway and railway track and that Ranade had occasion to see railway track near Taloja. Learned Advocate Mr. Maniar thereafter submitted that Taloja MIDC was considered as Chemical Zone and it was also sought to be suggested by relying on the evidence of said Ranade that in the near future there would be substantial scope for development of the suit lands. 7 7. Learned Advocate Mr. Maniar had relied upon the judgment of Division Bench of this Court in the case of Abdul Aziz Husenmiya Patel v. The Special Land Acqusition Officer, in First Appeal No.875 of 1985 and 30 other cases came to be decided on 16.3.2000. Learned Advocate Mr. Maniar had drawn my attention to the fact that the learned Judges who decided the said matter had accepted the principle that the distance between the land in question and the National Highway is prime factor which is required to be gone into. Learned Advocate Mr. Maniar had drawn my attention to the fact that in the said judgment the Court has observed that Survey NO.293 of very Village Taloja in which the suit lands are situated was held to be comparatively closer to the highway and the Court had granted compensation at the rate of Rs. 20/- per sq. meter. Learned Advocate Mr. Maniar had relied upon the judgment in case of Mohamad. Alli Abdul Karim Arshi vs. The Special Land Acquisition Officer, in First Appeal No.695 of 1992 and other cases where the Court had granted 8 compensation at the rate of Rs.25/- per sq. meter where the land was at the distance of 320 meters. Learned Advocate Mr. Maniar had therefore submitted that the appellants are entitled to compensation at the rate of Rs.20/- per sq. meter particularly because the land in question is hardly 70 meters from the highway. He therefore submitted that the First Appeal should be allowed and that the grant of compensation should be enhanced to Rs.25/- per sq. meter. He had drawn my attentin to the Judgment and Decree impugned in this First Appeal and had pointed out that the conclusions arrived at by the learned District Judge are not proper, keeping in view the Judgment cited by him. He submitted that the compensation, at the rate of Rs.25/- per sq. meter should be granted. 8. As against this, learned Advocate Mrs. Manchekar appearing on behalf of the Respondents State submitted that the judgment and Decree dated 24.10.1997 requires reconsideration in the light of points raised in the appeal filed by the 9 respondents. According to her grant of compensation at Rs.15/- per sq. meter is improper and not in consonance with the evidence on record. She submitted that the Appeal of the appellants be dismissed and rate be reduced by granting appeal of respondents. She had relied upon the judgment of Division Bench of this Court in First Appeal Nos.870 of 1991 and 817 of 1991 in the case of State of Maharashtra vs. Ismile Abdul Gafur Patel & Ors. reported in 2006 (2) MLJ and had drawn my attention to paragraph 20 and had submitted that the Court should not mechanically grant compensation based on the earlier decision and it is necessary for the Court to carry out specific exercise with reference to the Order of Acquisition and other related aspects and once that is done the appropriate compensation amount would be even less than Rs.15/- as granted by the learned District Judge. 9. I have considered the submissions advanced by both the learned Advocates and have gone through the judgments relied upon by appellants and 10 respondents. I have considered the rival submissions. The evidence on record clearly goes to show that the suit lands are at the distance of 70 meters away from the highway. It is also well settled principle that the distance from the highway and the land in question is prime factor, apart from other aspects such as potentiality of land, possible development of the land in near future. Taloja Railway Station also appears to be near the land in question and the land has chances of development. By now, it is well established that if the Division Bench of this Court has fixed a particular rate for the purpose of grant of compensation then in the normal course, the Court which is required to decide the rate subsequently is required to yield to the rate fixed by the earlier Court unless there is some specific reason based on material on record. 10.In the present case, the judgments relied upon by learned Advocate Mr. Maniar clearly go to show that if the land is very close to Bombay Pune Road and situated at Taloja Pachanand Village then the 11 appellants are entitled to higher rate of compensation. The land situated at a distance of 320 meters away from the highway has been granted rate of compensation at the rate of Rs.20/- per sq. meter, then if these lands are at the distance of 70 meters from the highway they ought to be granted the rate of Rs.25/- per sq. meter. The submission of the learned Advocate Mr.Maniar can be accepted. The judgment relied upon by learned Advocate Mr. Maniar in First Appeal No.675 of 1992 and other cases clearly indicate that the notification for acquisition was of the year 1970. In the present case also the notification for acquisition was of the year 1970. If this is so, then the appellants are entitled to the aforesaid rate keeping in view the distance of land qua Bombay Pune Road. 11.For the reasons mentioned aforesaid, I am inclined to fix the compensation at the rate of Rs.25/- per sq. meter and to that extent the grant by the learned District Judge at the rate of Rs. 15/- will have to be enhanced by granting First 12 Appeal No.493 of 2001. Naturally the First Appeal filed by the State will have to be dismissed. For the reasons mentioned aforesaid, I pass the following Order. ORDER i. First Appeal No.282 of 2000 filed by the State of Maharashtra is dismissed. ii.First Appeal No.493 of 2001 filed by the Land Owners is allowed. iii.The Judgment and Decree dated 24.10.1997 passed by the learned Joint District Judge, Raigad, Alibag in Land Reference No.255 of 1987 is set aside to the extent of rate fixed by the learned Addl. District Judge and in the place of rate of Rs/15/- per sq. meter the rate granted to the appellants in appeal No.493 of 2001 shall be at Rs.25/- per sq. meter. The calculation regarding compensation in regard to the lands in question totaling to 5830 sq. meter be done accordingly 13 i.e. The basic compensation payable shall be 5830 sq. meter. Multiplied by Rs.25/- per sq. meter. The appellants shall be entitled to other benefits such as solatium, and other benefits applicable in accordance with the provisions of Land Acquisition Act by keeping in view the rate at Rs.25/- per sq. meter. To that extent the impugned judgment dated 24.10.1997 is confirmed. iv.The Respondent State of Maharashtra shall make the payments to the appellants in terms of this Order. v. There shall be no order as to costs. vi.Certified copy expedited. (R.Y.Ganoo, J.)