1 IN TH HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 606 OF 1989 WITH CIVIL APPLICATION NO. 4692 OF 2001 ALONWITH FIRST APPEAL NO. 607 OF 1989 IN CROSS OBJECTION (STAMP) NO.19669 OF 1991 WITH CIVIL APPLICATION NO. 6142 OF 2007 ALONG WITH FIRST APPEAL NO. 608 OF 1989 WITH CROSS OBJECTION STAMP NO. 19670 OF 1991 WITH CIVIL APPLICATION NO. 6143 OF 2007 ALONG WITH FIRST APPEAL NO. 609 OF 1989 WITH CROSS OBJECTION ST. NO. 20085 OF 1991 WITH CIVIL APPLN. NO. 6144 OF 2007 ALONG WITH FIRST APPEAL NO. 610 OF 1989 WITH CROS OBJECTION STAMP NO.19673 OF 1991 WITH CIVIL APPLICATION NO. 6159 OF 2007 ALONG WITH FIRST APPEAL NO. 611 OF 1989 WITH 2 CROSS OBJECTION ST. NO. 20086 OF 1991 WITH CIVIL APPLICATION NO. 6145 OF 2007 ALONG WITH FIRST APPEAL NO.612 OF 1989 WIH CROSS OBJECTION ST. NO.19672 OF 1991 WITH CIVIL APPLICATION NO. 6146 OF 2007 ALONG WITH FIRST APPEAL NO. 613 OF 1989 WITH CROSS OBJECTION ST. NO. 33193 OF 1991 WITH CIVIL APPLICATION NO. 6147 OF 2007 ALONG WITH FIRST APPEAL NO. 614 OF 1989 WITH CROSS OBJECTION ST. NO. 26796 OF 1991 WITH CIVIL APPLICATION NO. 6148 OF 2007 ALONG WITH FIRST APPEAL NO.615 OF 1989 WITH CROSS OBJECTION STAMP NO. 30264 OF 1991 WITH CIVIL APPLN. NO. 6149 OF 2007 ALOG WITH FIRST APPEAL NO. 616 OF 1989 WITH CROSS OBJECTION STAMP NO. 13324 OF 1991 WITH CIVIL APPLICATION NO. 6150 OF 2007 ALONG WITH FIRST APPEAL NO. 617 OF 1989 3 WITH CRSS OBJECTION ST. NO.13325 OF 1991 WITH CIVIL APPLN. NO. 6151 OF 2007 ALONG WITH FIRST APPEAL N O. 618 OF 1989 WITH CROSS OBJECTION ST. NO. 5572 OF 1991 WITH CIVIL APPLN.NO. 6160 OF 2007 ALONG WITH FIRST APPEAL NO.619 OF 1989 WITH CROSS OBJECTION STAMP NO.13326 OF 1991 WITH CIVIL APPLN.NO. 6152 OF 2007 ALONG WITH FIRST APPEAL NO. 620 OF 1989 WITH CROSS OBJECTION ST.NO.19668 OF 1991 WITH CIVIL APPLN. NO. 6153 OF 2007 ALONG WITH FIRST APPEAL NO. 621 OF 1989 WITH CROSS OBJECTIONST.NO. 33194 OF 1991 WITH CIVIL APPLN. NO.6154 OF 2007 Along with FIRST APPEAL NO. 622 OF 1989 WITH CROSS OBJECTION ST. NO.19667 OF 1991 WITH CIVIL APPLN. NO. 6155 OF 2007 4 ALONG WITH FIRST APPEAL NO. 623 OF 1989 WITH CROS OBJECTION ST. NO.21319 OF 1991 WITH CIVIL APPLN. NO.6156 OF 2007 The State of Maharashtra ) through the Special Land Acquisition ) Officer, Metro Centre No.III, ) District Thane). ).. Appellant Versus Nandanvan Co-operative Housing ) Society Limited of Nerul, Tal. & Dist. ) Thane. ).. Respondent (Org.Claimant. Ms. S.P.Manchekar, AGP, for the Appellant-State. Mr. S.S.Kanetkar, i/b. Shri G.S.Godbole,Advocate, for the respondent. CORAM: J.H.BHATIA,J. JUDGMENT RESERVED ON 31.7.2009 . JUDGMENT PRONOUNCED ON 26. 8.2009. JUDGMENT 1. All these Appeals, Cross-Objections therein and the Civil Applications for amendment in the grounds of Appeals may be disposed of by this common Judgment as they arise out of common and similar Judgment 5 delivered by the District Judge, Thane. 2. To state in brief, on 4.2.1970, a Notification under Section 4 of the Land Acquisition Act was issued for acquisition of certain lands from Village Nerul, District Thane for the purpose of establishment of a satellite city called “New Bombay”. As per the decision, the lands from 84 villages were decided to be acquired, 60 of these villages were from Panvel and Uran Talukas. On 8.5.1972, a Notification under Section 6 of the Land Acquisition Act was also issued and award was passed on 5.6.1982, while the possession of the lands involved in the present Appeals was taken on 9.6.1986. After the notification under Section 6, the claimants, whose lands were to be acquired, filed their claims and, according to them, market value of the land was Rs.50/- per sq. metre and accordingly, they claimed compensation. The Special Land Acquisition Officer divided the lands in different categories and fixed the market value of those groups at the rate of Rs.4.80 ps., Rs.3.60 ps. and Rs.2.50 ps. per sq. metre and accordingly, the compensation was awarded for the plots of the plaintiffs. Being not satisfied with the compensation awarded, the claimants,who are respondents in these Appeals, submitted their applications to the Collector for making reference to the Reference Court for the purpose of determining their claims for 6 compensation. All those references were referred by the Collector to the District Court, Thane, and after hearing the parties and after perusal of the oral and the documentary evidence, the learned Joint District Judge passed the impugned order dated 17.8.1988 and fixed the compensation at he rate of Rs.10/- per square metre and directed to add 12% per annum as additional component and then to add 30% solatium on the total of the market value and the additional component. After deducting the compensation and the solatium which was already paid, the balance amount was directed to be paid to the claimants as compensation. Being not satisfied with the said order, the State has preferred these Appeals. 3. It is contended that the Reference Court has not considered the evidence properly and has granted excessive compensation. It is contended that the compensation awarded by the Land Acquisition Officer was just and proper and it needed no addition. The respondents also filed cross-objections and contended that there was no justification to fix the compensation at the rate of Rs.10/- per square metre, while in a similar case earlier, the Court had fixed the price at Rs.17.32 ps. per sq. metre. It is also contended that the Reference Court has not considered the urban potentiality of the lands, particularly because a new township was to be established which has 7 eventually developed in a good city and prices of the property have shot up. According to them, their claim of Rs.50/- per sq. mtr. was justified. They seek further enhancement in the compensation awarded by the reference Court. 4. Pending these Appeals, the appellants filed Civil Applications in each of these appeals for making amendment in the grounds of appeal. It is contended that the reference applications were made by the claimants beyond the period of limitation and the delay was ranging from 16 days to 678 days. It is contended that on this very ground the references were barred by limitation and they could have been rejected. It is also contended that the compensation awarded by the reference Court was more than the claims made by the claimants and therefore, the order cannot be justified. These applications for amendment have been strongly opposed on behalf f the respondents. According to them , the question of limitation is a mixed question of fact and law, The reference applications were not rejected by the Collector who is a statutory authority to see that the applications are made within time. Without any objection of limitation, he submitted the reference applications to the reference Court and no written statement was filed on behalf of the State nor any question of limitation was raised before the 8 Reference Court. The reference Court also decided the references without raising any question of limitation as the State has not raised that question. Not only this, the question of limitation was not raised even in the grounds of appeal though the appeals were filed in 1989. It will not be proper to allow such applications after a lapse of about 18 to 20 years after filing the appeals. 5. Before going to the merits of the appeals, the applications for amendment may be taken up. One of the grounds proposed to be taken is that the reference Court had granted compensation at a rate more than what was claimed. This is totally wrong and against the record. The claimants had claimed compensation at the rate of Rs.50/- per sq. metre before the Collector in response to the notice after the notification under Section 6, while the Reference Court granted only Rs.10/- per sq. metre. 6. The second ground is about the limitation. As per the provisions of Section 18, an application for reference has to be made within six weeks from the date of the Collector’s order where the party was present or represented before the Collector at the time of passing the award. If the party was not present and notice of the award was issued under Section 9 12(2), then the application for reference can be made within six weeks from the date of receipt or within six months from the date of the Collector’s Award, whichever period shall first expire. It is a question of fact as to whether the claimants or their representatives were present at the time of passing the award and if not, when the notice under Section 12(2) was actually served. It is also not clear when the order of the Collector was actually served on them. It is material to note that in State of Maharashtra vs. Sadashiv Ganpat Avhad, 2007 (3) Mh.L.J.830 in First Appeal No.251 of 1996, there was difference of opinion between the two learned Judges of the Division Bench as to whether at the stage of arguments the question of limitation can be raised for the first time. Therefore, the matter was referred to a third Judge. The learned third Judge, after hearing the parties on both questions on which there was difference of opinion, held that the applicants cannot be permitted to raise the issue of limitation as a preliminary objection during the oral arguments without even making an application to amend the appeal memo and without affording an opportunity to the respondents to oppose the same. The learned Judge also held that if the appeal memo is permitted to be amended, the issue of limitation ought to be remanded back to the reference Court so as to enable both the parties to lead the evidence on the factual aspects with regard to the issue of limitation. 10 7. It is contended by the learned AGP that after the said decision dated 22.2.2007, it was decided to move civil application to make amendment in the grounds of appeal for the purpose of raising the question of limitation to the reference Court. The reference was made in 1982 and the same was decided in 1988. In 1989, First Appeal was filed before this Court. Thus, a period of 20 years has passed after the filing of the appeal and a period of 27 years has passed after the reference was made to the reference Court. Further, at this stage, if the State is allowed to take the preliminary objection of limitation to filing of the reference, it will become necessary to remand the matter back to the Reference Court to decide that issue. The Collector had not refused to make the reference on the ground of limitation nor the question of limitation was raised before the reference Court by filing written statement nor this ground was raised in the grounds of appeal filed in 1989. In my considered opinion, it will be futile exercise to allow the amendment in the grounds of appeal at this stage and then to remand the matter back to the Reference Court to decide the issue of limitation. After such a long period, it will be unreasonable and unjustifiable to allow the State to raise the question of limitation for the first time before this Court. Therefore, the applications seeking amendment in the grounds of appeal 11 stand rejected. 8. Coming to the merits in the appeals, it appears that the Village Nerul, where the land involved in all these appeals is situated, is at the distance of about 10 to 12 miles to the South of Thane City. It is at a distance of 100 to 150 ft. from Nerul Village and at the distance of about 300 to 400 feet from western side of Thane Belapur Road. The record reveals that the Government of Maharashtra had appointed the Barve Committee to suggest remedial measures for the problem of acute shortage of accommodation and congestion within the limits of Greater Bombay. The Barve Committee submitted report in 1958 and as a result of that a proposal came for construction of new Sion Panvel Highway. Accordingly, the lands were acquired in the year 1962 and the construction of a bridge across the Thane Creek and a new Highway came to be constructed. Nerul Village is at a distance of 2 miles from the said Highway. Sometime in 1966 or so, some people came forward to form a Co-operative Housing Society for the purpose of construction of bungalows and they looked for land near Nerul. Accordingly, Nandanvan Co-operative Housing Society Ltd., which is the claimant in 18 appeals, was established. They purchased substantial land in 1968 and some land was purchased in 1970. In Reference no.64 of 1982, 12 agreement for sale was executed in 1969. In Reference No.31 of 1984, the land is the ancestral property of the claimants. After purchasing sufficient land for construction of bungalows for about 120 members of the Society. Bhumi Pujan was performed in 1968. Ground water survey disclosed the urban water was available. Besides this, they also approached MIDC and the MIDC sanctioned water supply of 40,000 gallons per day in April 1970. Even though the commitment made by MIDC for water supply was made shortly after the notification under Sec.4, the record reveals that the claimants had approached the MIDC long before that and the final order came in April 1970. 9. The record also reveals that in Thane-Belapur belt, industrial development had already commenced. When the notification was issued under Sec.4 the nearest industry was at a distance of 2 miles from the location of lands acquired in this case. When the claimants had already done a lot of work to develop the area for the purpose of residential bungalows, the notification under Section 4 was issued on 4.2.1970 and the notification under Sec.6 was issued on 8.5.1972 whereby the lands of the claimants were proposed to be acquired for the purpose of satellite city to be known as “New Bombay” to solve the accommodation problem in Bombay 13 City. In view of this, it is clear that even before the notifications under Sections 4 and 6 were issued, the urban potentiality and at least potential for development of industrial belt was known to the parties. Undoubtedly a vast area of land was acquired by the Government from 84 villages out of which 60 villages were from Panvel and Uran Talukas of Alibag District and some were from Thane District. 10. The claimants i.e. Co-operative Housing Society placed on record the sale deeds and the agreement for sale under which they had purchased the said land. The sale deeds reveal that the Society had purchased the land at the rate of Rs.5/- per sq. yard or Rs.5.98 ps. per sq.metre. The Society had purchased in all 1,69,015 sq. yards of land for the price of Rs.8,45,075/-. As per the evidence of Bhalchanda Sabnis, who was the Hon.Secrertary of the Society, the Society had spent amount of Rs. 30,000/- to Rs.40,000/- for the development of land before the construction could be undertaken. The sale deeds and other documents about this very land were placed before the S.L.A.O. and it appears that the said documents were referred to by the SLAO while passing the award. Inspite of the fact that the claimants had purchased the land at the rate of Rs.5.98 ps. per sq. metre, the SLAO fixed the market value at the rate of Rs.4.80 ps., Rs.3.60 ps. 14 and Rs.2.50 ps. per sq. metre by making three groups of the land depending upon location and frontage and thus fixed the price of the land at a rate much less than the rate at which the claimants themselves had purchased long before the notifications under Sections 4 and 6 were issued. 11. The reference Court noted that in the land Acquisition Reference no.11/81 dated 19.8.1987, about acquisition of land at Nerul itself, the Reference Court had fixed the market value at Rs.10/- per sq. metre. That land was also acquired as per the notification dated 3.2.1970 and 3.5.1972. It means at about the same time, the notifications were issued in that matter as well as in respect of the lands involved in the present litigation. The learned Reference Court also noted that in Land Acquisition Reference No.17/81, decided on 7.7.1984, it was revealed that the SLAO had awarded the price at the rate of Rs.7/- per sq. metre in respect of the land of Village Shirvane which is also near to Nerul. That price was enhanced by the Reference Court to Rs.17.32 ps. However, it was noted that higher rate was granted because at that time there was no provision for grant of interest from the date of taking possession. The provisions about grant of interest and solatium at higher rate came with the Land Acquisition Amendment Act, 1984 In the present matter, the Reference Court noted that the higher rate was granted by 15 his predecessor because he could not award the interest. However, he found that the said rate could not be applicable to the present case because now the claimants are entitled not only the market value of the land, but also additional component at the rate of 12%, enhanced solatium at the rate of 30% and also future interest at the rate of 9% for the first year and 15% thereafter. The judgment of the Reference Court shows that the learned Reference Court had minutely considered all the aspects before coming to conclusion that the market value of the acquired land should be determined at Rs.10/- per sq. metre. As indicated above, the claimants had started entering into agreements for purchase of lands since 1966 and the lands were purchased in the year 1968. They had agreed to purchase the land at the rate of Rs.5.98 ps.per sq. metre and they had paid the price accordingly. When there was a proposal for acquisition of land for development of a new township, naturally, prices in the area would go up. Therefore, in my considered opinion, no exception can be taken to the determination of the market value at the rate of Rs.10/- per sq. metre in 1970 when the notification under Sections 4 and 6 were issued. Even though the claimants also filed cross-objections in respect of fixation of market value, I do not find any material in support of their contention. Even though they claimed compensation at the rate of Rs.50/-, there was no material to support their 16 claim. As pointed out earlier, in Reference No.17/81, in which case also the land was almost acquired during the same period, the rate was granted at Rs. 17.32 ps. but it was because future interest or the higher rate of solatium could not be awarded. That aspect has been considered in the judgment in the present matters by the Reference Court. Therefore, in my considered opinion, the market value determined by the Reference Court is correct and needs no interference. 12. For the aforesaid reasons, all the Applications, the Appeals as well as cross-objections stand dismissed. (J.H.BHATIA,J.)