ash 1 fa-370-372,433,434-group IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO. 370 OF 1999 WITH FIRST APPEAL NO. 371 OF 1999 WITH FIRST APPEAL NO. 372 OF 1999 WITH FIRST APPEAL NO. 433 OF 1999 WITH FIRST APPEAL NO.434 1999 WITH FIRST APPEAL NO.548 OF 2001 WITH FIRST APPEAL NO.276 OF 1997 WITH FIRST APPEAL NO. 549 OF 2001 WITH FIRST APPEAL NO. 1620 OF 1996 WITH FIRST APPEAL NO. 550 OF 2001 WITH FIRST APPEAL NO. 1621 OF 1996 WITH FIRST APPEAL NO.551 OF 2001 WITH FIRST APPEAL NO. 1622 OF 1996 WITH FIRST APPEAL 552 OF 2001 WITH FIRST APPEAL NO. 1623 OF 1996 FA NO.370 OF 1999 The State of Maharashtra .. Appellant Vs Krishna Goma Mhatre, (deceased) through Anant Krishna Mhatre .. Respondent -- Shri A.R. Patil, AGP for th Appellant. Shri Sunil Kale for the Respondent. ash 2 fa-370-372,433,434-group FA NO.371 OF 1999 State of Maharashtra .. Appellant. Vs Rambhau Toma Mhatre. .. Respondent -- Shri A.R. Patil, AGP for th Appellant. Shri Sunil Kale for the Respondent. FA NO.372 OF 1999 State of Maharashtra .. Appellant. Vs Pandu Janu Patil. .. Respondent -- Shri A.R. Patil, AGP for th Appellant. Shri Sunil Kale for the Respondent. FA NO.433 OF 1999 State of Maharashtra .. Appellant. Vs Shri Baban Sudam Patil. .. Respondent -- Shri A.R. Patil, AGP for th Appellant. Shri Sunil Kale for the Respondent. FA NO.434 OF 1999 State of Maharashtra .. Appellant. Vs Smt. Bhagubai Janya Zuge .. Respondent -- Shri A.R. Patil, AGP for th Appellant. Shri Sunil Kale for the Respondent. FA NO.548 OF 2001 State of Maharashtra .. Appellant. Vs Shri Trimbak Marya Patil .. Respondent -- ash 3 fa-370-372,433,434-group Shri A.R. Patil, AGP for th Appellant. Shri Sunil Kale for the Respondent. -- FA NO.276 OF 1997 Shri Trimbak Marya Patil .. Appellant Vs State of Maharashtra .. Respondent -- FA NO.549 OF 2001 State of Maharashtra .. Appellant. Vs Shri Rajaram Goma Mhatre. .. Respondent -- FA NO.1620 OF 1996 Rajaram Goma Mhatre .. Appellant Vs State of Maharashtra .. Respondent -- Shri Sunil Kale for the Appellant. Shri A.R. Patil, AGP for the Respondent. FA NO.550 OF 2001 State of Maharashtra .. Appellant. Vs Shri Rajaram Goma Mhatre .. Respondent -- Shri A.R. Patil, AGP for th Appellant. Shri Sunil Kale for the Respondent. FA NO.1621 OF 1996 Shri Rajaram Goma Mhatre .. Appellant Vs State of Maharashtra .. Respondent -- ash 4 fa-370-372,433,434-group Shri Sunil Kale for the Appellant. Shri A.R. Patil, AGP for the Respondent. FA NO.551 OF 2001 State of Maharashtra .. Appellant. Vs Shri Maruti Babu Patil .. Respondent -- Shri A.R. Patil, AGP for th Appellant. Shri Sunil Kale for the Respondent. FA NO.1622 OF 1996 Shri Maruti Babu Patil .. Appellant Vs State of Maharashtra .. Respondent -- Shri Sunil Kale for the Appellant. Shri A.R. Patil, AGP for the Respondent. FA NO.552 OF 2001 State of Maharashtra .. Appellant. Vs Shri Pandurang Joma Patil .. Respondent -- Shri A.R. Patil, AGP for th Appellant. Shri Sunil Kale for the Respondent. FA NO. 1623 OF 1996 Shri Pandurang Joma Patil .. Appellant Vs Special Land Acquisition, Metro Center No.1, Panvel. .. Respondent -- Shri Sunil Kale for the Appellant. Shri A.R. Patil, AGP for the Respondent. -- ash 5 fa-370-372,433,434-group CORAM : A.S. OKA, J DATED : 21ST JUNE, 2011 ORAL JUDGMENT: . These Appeals can be disposed of by a common judgment. The Appeals arise out of the awards made under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act” ) in relation to the acquired lands at Village Koli Kopar, Taluka – Panvel, District – Raigad which were notified for acquisition by a Notification under Section 4(1) of the said Act on 3rd February, 1970 for public purpose for setting up a satellite city of New Bombay. 2. First Appeal Nos.370 of 2001, 371 of 2001 and 372 of 2001 preferred by the State of Maharashtra take an exception to the common judgment and award passed by the Reference Court in Land Acquisition Reference Nos.82 of 1987, 87 of 1987 and 109 of 1987 wherein the market value has been fixed at the rate of Rs.10/- per sq. meter and statutory benefits under Section 23(1-A), 23(2) and 28 of the said Act have been granted. First Appeal No.433 of 1999 and First Appeal No. 434 of 1999 preferred by the State of Maharashtra take an exception to the common judgment and award in Land Acquisition Reference Nos. 79 of 1987 and 80 of 1987 wherein the market value has been fixed at the rate of Rs.10/- per sq. meter and the statutory benefits have been ash 6 fa-370-372,433,434-group granted. 3. First Appeal No.548 of 2001 preferred by the State Government takes an exception to the judgment and award in Land Acquisition Reference No.93 of 1987. The market value fixed by the Reference Court is at the rate of Rs.8/- per sq. meter and the statutory benefits have been also granted. First Appeal No.276 of 1997 is a Cross Appeal preferred by the Claimant for enhancement. 4. First Appeal No.549 of 2001 has been preferred by the State Government for challenging the judgment and award in Land Acquisition Reference No.94 of 1987 under which market value has been fixed at the rate of Rs.8/- per sq. meter along with all the statutory benefits. First Appeal No.1620 of 1996 is a Cross Appeal preferred by the Claimant for enhancement. 5. First Appeal No.550 of 2001 has been preferred by the State Government for challenging the judgment and award in Land Acquisition Reference No.95 of 1987 under which market value has been fixed at the rate of Rs.10/- per sq. meter along with all the statutory benefits. First Appeal No.1621 of 1996 is a Cross Appeal preferred by the Claimant for enhancement. ash 7 fa-370-372,433,434-group 6. First Appeal No.551 of 2001 has been preferred by the State Government for challenging the judgment and award in Land Acquisition Reference No.104 of 1987 under which market value has been fixed at the rate of Rs.10/- per sq. meter along with all the statutory benefits. First Appeal No.1622 of 1996 is a Cross Appeal preferred by the Claimant for enhancement. 7. First Appeal No.552 of 2001 has been preferred by the State Government for challenging the judgment and award in Land Acquisition Reference No.106 of 1987 under which market value has been fixed at the rate of Rs.10/- per sq. meter along with all the statutory benefits. First Appeal No.1623 of 1996 is a Cross Appeal preferred by the Claimant for enhancement. 8. In all the aforesaid cases, the awards under Section 11 of the said Act have been made in the year 1986. 9. The learned AGP appearing for the Appellant has taken the Court through the evidence both oral as well as the documentary and the findings recorded by the Court below. He submitted that the village Koli Kopar cannot be compared with Panvel and surrounding area inasmuch as it is far away from the Bombay-Pune National Highway and that there is a creek between the village Koli Kopar and ash 8 fa-370-372,433,434-group Panvel. He submitted that nearby villages like Wadghar, Karanjade, etc. are more advantageously located. He submitted that considering the location of the village Koli Kopar, market value at the rate of Rs.8/- per square meter and Rs.10/- square meter fixed by the Reference Court is excessive. Learned counsel appearing for the Claimants submitted that the village Koli Kopar is situated adjacent to Panvel and Kamothe. He submitted that as of 3rd February, 1970, the Division Bench of this Court has fixed the minimum market value of Rs.21/- per sq. meter in respect of the lands in villages Panvel and Kamothe which are far away from Bombay Pune National Highway. He submitted that the evidence on record shows that there was a railway line passing through the village Koli Kopar. Inviting the attention of the Court to the oral evidence on record, he submitted that the market value fixed at the rate of Rs.8/- per square meter and Rs.10/- per sq. meter is on a higher side. He submitted that even in case of the lands in nearby village like Karanjade, the market value has been fixed at the rate more than Rs. 13/- per sq. meter. 10. I have given careful consideration to the submissions. During the year 1967 and 1972, a vast tracts of lands in 96 villages in the Districts Raigad and Thane were notified for acquisition for public purposes for setting up the satellite city of New Bombay. A judicial notice of such a large scale acquisition has been taken by the Apex Court in the case of Avinash Dhavaji Naik v State of Maharashtra, [(2009)11 SCC 171]. The Apex Court dealt ash 9 fa-370-372,433,434-group with an appeal arising out of the reference under Section 18 of the said Act in respect of the land at village Vahal, Taluka- Panvel, District – Raigad wherein the market value was fixed by this Court at the rate of Rs.7/- per square meter. The land subject matter of acquisition was also notified under Section 4(1) of the said Act on 3rd February, 1970 for the same public purpose. 11. The Apex Court considered the fact that large tracts of land falling in 96 villages in Thane and Raigad Districts were notified on the same date for the same public purpose. Paragraphs 11 to 15 of the said decision read thus: - “11. The purpose for acquisition of land was building a new city. A vast tract of land was sought to be acquired. Indisputably, in terms of Section 23 of the Act, the market value of the land was required to be determined as was obtaining in the year 1970 when the notification under Section 4 of the Act was issued. It is unfortunate that despite the fact that Notification was issued under Section 4 of the Act as far back as on 3-2-1970 and a declaration under Section 6 of the Act was issued on 21-5-1971, the award came to be passed only on 30-6-1986 and that too probably, only having regard to the consequences ensuing in terms of Section 11-A of the Act. 12. A finding of fact was arrived at by the learned Reference Judge that no sale instance was available for the lands situated in the village Wahal and there was no industrial or commercial development therein. The Pune-Bombay Highway was constructed in the year 1978. The MIDC pipeline was constructed in the year 1978. There was no railway station nearby the village. The villagers did not obtain any electricity connection. The land was a grassy land. In the absence of any example of sale being available, the Reference Court was required to take recourse to other methods of valuation. We do ash 10 fa-370-372,433,434-group not find that enough materials had been brought on record to establish the yield of the lands sought to be acquired, which are admittedly agricultural in nature. In all fairness, the State should have brought on record the requisite information viz. the nature of the crop, the annual average yield, availability of irrigation facilities, etc. so as to enable the Reference Court to arrive at a correct decision in regard to grant of compensation under the Act. 13. Although the lands in question were agricultural in nature, they were being used for making a town like Bombay. A new port known as Nhava Sheva Port had come into being which is a few kilometers away from the village. The roads were being constructed. The road to Nhava Shiva Port from Bombay is a district board road which is within 7 km from the village in question. A copy of the New Bombay Development Plan has been placed before us to point out construction of the national highway i.e. Bombay-Pune Road as also the other district board roads. 14. The potentiality of a land for the purpose of development as also for building purposes would depend upon a large number of factors. For the said purpose, the court may not only have to bear in mind the purpose for which the lands were sought to be acquired but also the subsequent events to some extent. 15. In a case of this nature the court may proceed on the presumption that such a vast tract of land viz. 96 villages were sought to be acquired at the same time for construction of New Bombay. We are not unmindful of the fact that development in the entire area was not possible at one point of time. Development of the area must have taken place in phases. We are also not unmindful of the fact that the price of the land may skyrocket depending upon the development as also future potentiality.” ( Underline supplied ) 12. Even after noting several negative factors such as absence ash 11 fa-370-372,433,434-group of electricity in the village as of 1970, the Apex Court proceeded to fix market value of the land at village Vahal at the rate of Rs.10/- per sq. meter. 13. I have perused the notes of evidence and other documents on record. In a common judgment subject matter of challenge in First Appeal Nos.370 of 1999 to 372 of 1999, the Reference Court has considered the evidence of Mrs. Manjiri Avinash Joshi, the valuer. The valuation report was exhibited at 20 and the map was exhibited at 21. One of the Claimants Baban Sudam Patil stepped into the witness box. In Paragraphs 5 and 6 of his evidence, he has described the location of the acquired lands. Relevant portion of Paragraphs 5 and 6 of his deposition reads thus:- “5. Panvel is at a distance of 1 mile away from Koli Kopar. All the lands are from Koli Kopar. Said lands are at a distance of one furlong from Uran Panvel Road. The lands of claimant in LAR Nos.82/87 and 87/87 are adjacent of 200’ away from gavthan. From Panvel Uran road there is a road to come to my village. The said lands are at a distance of 100’ away from the said road. The lands are on higher level. Since 1966 there is electricity to my village. Said Uran Panvel road and ZP road are in existence since prior 1970. We have produced on record the report of valuer and her map in all 3 references and also the awards passed by the Courts. 6. Karanjade village is at a distance of 1 km away from Panvel Uran Road.” (Underline supplied) ash 12 fa-370-372,433,434-group 14. In the cross-examination, he denied the correctness of the suggestion that the lands in village Koli Kopar were khar lands. In Paragraph 8, he admitted that beyond Panvel creek there is a fallow land and beyond that there is village Koli Kopar and its Gaothan. On the souhern side of the said Gaothan , there is Panvel Uran road. On the southern side of the said road there is a railway track which was used for goods trains. The valuer Mrs. Manjiri Joshi was examined. In her cross-examination, she stated thus:- “It is true on northern side Kopar there is creek so also there is creek on corner of north west. So also there is a strip of creek on north east directed at Koli Kopar and it is towards Panvel. Beyond Kopar in southern direction there is village Wadghar and beyond that there is creek and beyond that creek there is Panvel. However, one border land is adjacent to the said village, village Pargaon, Ulve Targhar are adjacent to the creek. NH4B is to the southern side of Kopar on the northern side of NH4B there is railway track for goods. Said track is on higher level.” 15. The Map at Exhibit 21 drawn by the valuer shows that on north and north east of village Koli Kopar, there is a Panvel creek. In fact, Panvel creek separates the village Koli Kopar from Kamothe and Panvel. The villages Kamothe and Panvel cannot be compared with the village Koli Kopar for various reasons. The first reason is that, as far as ash 13 fa-370-372,433,434-group the village Panvel is concerned, it was already a municipal area in 1970. The second reason is that the Bombay Pune Road was passing through the villages Kamothe and Panvel on the relevant date. The said National Highway is far away from the village Koli Kopar. A reliance was sought to be placed on the sale instances in relation to the villages Kamothe and Panvel and especially on a decision of the Division Bench in the case of State of Maharashtra v. Prakash Vasudeo Deodhar [2008(5)Bombay Cases Reporter 708]. The said decision will have no application as the Division Bench has adopted a belting method and has fixed the market value on the basis of distance of the acquired lands from Bombay Pune National Highway. The said method was adopted as the Bombay-Pune Highway was passing through the villages Panvel and Kamothe on the relevant date. Therefore, no comparison can be made as between the acquired lands in the villages Kamothe and Panvel on one hand and the village Koli Kopar on the other hand. 16. The Appeals arising out of a large number of References under Section 18 of the said Act in respect of the lands in 96 villages notified on 3rd February, 1970 have been decided by this Court. In respect of the village Dapoli, which is on the southern side of the village Koli Kopar, the market value has been fixed at the rate of Rs.10/- per sq. meter. However, the village Koli Kopar is situated much closer to Bombay Pune National Highway as compared to the village Dapoli. ash 14 fa-370-372,433,434-group 17. On the South West side of the village Koli Kopar, there is a village Wadghar and on the Western side of the village, there are villages Pargaon and Ulwe. In cases of the lands in the villages Wadghar and Ulwe, this Court has fixed the market value at the rate of Rs.12/- per sq. meter as of 3rd February, 1970. The village Wadghar is on the Southern side of the village Koli Kopar which is also separated from Panvel by the Panvel creek. In First Appeal No.758 of 1988 ( The Indian Standard Metal Company Ltd. v. The Special Land Acquisition Officer ) and other connected Appeals decided on 8th April, 2011, this Court has fixed the market value of the lands at village Wadghar at the rate of Rs.12/- per sq. meter. In case of one Appeal out of the said group where the area of acquired land was very vast, some deduction was made on account of largeness of area. In all other cases, no deduction was made and market value was maintained at the rate of Rs.12/- per square meter. 18. It must be noted here that in respect of the village Vahal, in the the case of Avinash Dhavaji Naik (supra), the Apex Court has fixed market value at the rate of Rs.10/- per sq. meter. The village Vahal is far away from Panvel as compared to the village Koli Kopar. The most important negative factor in respect of the said village is that on the relevant date, there was no electricity supply to the said village. Even ash 15 fa-370-372,433,434-group with these negative factors, the Apex Court fixed market value at Rs. 10/- per sq. meter. From the location of the villages reflected from the Map at Exhibit-21, the village Koli Kopar cannot be treated differently from the adjacent village Wadghar where the market value has been fixed at Rs.12/- per sq. meter. 19. It is well settled that the determination of market value under Section 23 of the said Act by its very nature involves some element of guess work. When sale instances of comparable lands in the village are not available, the Court can always rely upon the sale instances of lands in similarly located adjoining villages. Taking into consideration all these factors which are discussed above, the market value of the lands in the village Koli Kopar as of 3rd February, 170 will have to be fixed at Rs.12/- per sq. meter. 20. In some of the References, the Reference Court has made a distinction between the lands close to Zilla Parishad Road and the lands away from the Zilla Parishad Road. All the lands as of 3rd February, 1970 which were notified for acquisition were the agricultural lands, and therefore, such a distinction cannot be made. There is no dispute regarding grant of statutory benefits under Section 23(1-A), 23(2) and 28 of the said Act. ash 16 fa-370-372,433,434-group 21. Hence, I pass the following order:- (i) First Appeal Nos. 370 of 1999, 371 of 1999, 372 of 199, 433 of 1999, 434 of 1999, 548 of 2001, 549 of 2001, 550 of 2001, 551 of 2001 and 552 of 2001 are dismissed with no orders as to costs. (ii)(a) First Appeal No.276 of 1997, 1620 of 1996, 1621 of 1996, 1622 of 1996 and 1623 of 1996 are partly allowed. The impugned judgments and awards in these Appeals are modified by directing that the total market value of the acquired lands is fixed at Rs.12/- per sq. meter (inclusive of the market value offered by the Special Land Acquisition Officer ). (ii)(b) In addition, the Claimants will be entitled to statutory benefits under Section 23(1-A), 23(2) and 28 of the Land Acquisition Act, 1894. (ii)(c) The Claimants will be entitled to proportionate costs of the References as well as the First Appeals. ash 17 fa-370-372,433,434-group (ii)(d) The exercise of determining the compensation payable as per 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. (iii)(e) Excess amount shall be deposited by the State Government within a period of three months from the date on which compensation amount is determined by the Reference Court. (iv)(f) Civil Application No.214 of 2002 in FA No.548 of 2001, Civil Application No.5264 of 2001 in FA No.549 of 2001, Civil Application No. 216 of 2002 in FA No.551 of 2001 and Civil Application No.212 of 2002 in FA No.552 of 2001 do not survive and the same are disposed of accordingly. ( A.S. OKA, J )