1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.129 OF 2000 APPEAL NO.129 OF 2000 APPEAL NO.129 OF 2000 The State of Maharashtra, through the ] Special Land Acquisition Officer, No.1 ] Appellants. Nashik ] versus Ziyauddin Yasin Khatib Trust, through ] Managing Trustee Mehammad Saheb Hasan ] Saheb Khatib, since deceased by ] Trustees of Ziyauddin Y. Khatib Trust ] 1. Mehrunisa Mohammad Saheb Khatib ] 2. Rabiya Ibnyali Khatib ] 3. Shamshunia Ghulamgaus Kokani ] Respondents. Mrs.Geeta Mulekar, AGP, for the appellants. None for the respondents. CORAM CORAM CORAM : S.S.SHINDE, J. : S.S.SHINDE, J. : S.S.SHINDE, J. DATED DATED DATED : JUNE 06, 2008. : JUNE 06, 2008. : JUNE 06, 2008. ORAL ORAL ORAL JUDGEMENT : JUDGEMENT : JUDGEMENT : 1. The present appeal is filed by the appellants/State of Maharashtra challenging the final 2 judgment and order dated 31st December 1998 passed by Joint District Judge, Nasik in Land Reference No.508 of 1990. By the said judgment and order, the Joint District Judge, Nasik partly allowed the Land Reference No.508 of 1990 with proportionate costs and directed the Government to pay to the claimants/respondents the amount of Rs.1,72,206 towards enhanced compensation. The Government was further directed by the Joint District Judge, Nasik to pay the claimants interest at 9 per cent per annum on the value of the structure of Rs.1,07,628 for the first year from 25th September 1985 to 24th September 1986 and after its expiry further interest at 15 per cent per annum on the said amount 25th September 1986 till realization of the entire amount. FACTUAL FACTUAL FACTUAL MATRIX MATRIX MATRIX 2. The brief facts of the case are as under :- . The original claimants/respondents are the owners of the land comprising of city survey No.1991, admeasuring 5,196-85 sq.meters situated in Deolali gaothan, Taluka and District Nashik. This land was taken by them on lease from one Shri S.N.Deshmukh. The ancestors of claimants had constructed five 3 godowns and sublet them to other persons. The notification under section 4 of the Land Acquisition Act was issued by the Commissioner, Nashik Division, Nashik under his order bearing No.CB/Desk/I/LAQ/1640/85, dated 6th August 1985 which was published in the Maharashtra Government, Gazette on 2nd August 1985 and in daily newspaper "Rambhumi" and "Matantar" on 10th September 1985. The notification under Section 6 of the Land Acquisition Act was issued by the Government on 3rd February 1986 and it was published in Maharashtra Government Gazette on 13th February 1986 declaring the land for acquisition for the purpose of construction of Warehousing Corporation Building. By Award bearing No.11/84, the Special Land Acquisition awarded the rate of Rs.83 per square meter to the owner of the five godowns and Rs.29,911 for five godowns on the said land to the present claimants. 3. According to the claimants/respondents, the award passed by the Land Acquisition Officer was inadequate and the Special Land Acquisition Officer has failed to appreciate that in case of valuation of the buildings, full compensation of the structures to be awarded as estimated by the expert. The land Acquisition Officer has awarded only portion of the 4 compensation amount estimated by the Executive Engineer, Nashik (PWD), Division, Nashik, on the ground that only the portion of the structures has been acquired. It was further averred by the claimants that in case of partial acquisition of building, compensation on account of severance of injurious affection has to be awarded. However, the Special Land Acquisition Officer has committed a grave error by reducing the amount of compensation estimated by the expert without assigning any reasons. According to the claimants/respondents, they were deriving income on account of rent from the acquired structures to the extent of Rs.5,000/- per month, which factor has been totally lost sight of by the Special Land Acquisition Officer, while determining the true market value of the acquired structure. He has also failed to apply the principles underlying the valuation of structures/buildings to ascertain the true market value of the structures. According to the claimants/respondents, the Special Land Acquisition Officer has adopted a very erroneous and baseless illegal method of estimating the true market value of the five godowns. According to them, they, therefore, entitled to get fair market value of the acquired structures of Rs.10,00,000/- and after deducting the aforesaid amount awarded by the Special Land 5 Acquisition Officer, they are entitled to get Rs.,9,70,000/- with all statutory benefits, interest and costs from the Government. 4. The notice of the reference was duly served on the opponent/Government. The Government appeared in the matter through the District Government Pleader, but did not file written statement on record. 5. On the basis of pleadings on record, the Joint District Judge framed the following issues for his determination :- 1. Whether the claimants are entitled to get enhanced compensation ? If so, to what amount? 2. What order and Award ? The Joint District Judge decided the aforesaid Issues in favour of the claimants and awarded aforesaid enhanced compensation to the claimant by the impugned judgment and order dated 31st December 1998. SUBMISSIONS SUBMISSIONS SUBMISSIONS OF THE LEARNED AGP FOR THE APPELLANT OF THE LEARNED AGP FOR THE APPELLANT OF THE LEARNED AGP FOR THE APPELLANT 6 6. In the first round when the matter was called for final hearing none appeared for the parties. Therefore it was kept back. In the second round, Mrs.G.P.Mulekar, the learned AGP appearing for the appellant/State present. But, neither the respondents nor their advocate was present. Hence I heard the learned AGP for the State. She submitted that the compensation awarded by the SLAO to the claimants/respondents is an adequate compensation. She has contended that the compensation awarded by the SLAO was as per the prevailing market rate as on the date of issuing notification under Section 4 of the Land Acquisition Act. She has further argued that the rate of interest fixed by the lower court is exorbitant. According to appellant, the respondents/claimants are not entitled to enhanced compensation in respect of the acquired land on the basis of the evidence on record. The learned AGP vehemently argued that while awarding compensation, the lower court should have taken into consideration the market price of each piece of land because each piece of land is to be determined on the basis of quality, situation and other amenities available and, the respondents/claimants failed to adduce relevant and material evidence to establish that the property acquired is capable of fetching higher market value 7 and the amount awarded by the SLAO was inadequate. To the contrary the appellant/Government has placed on record documentary evidence in support of the award passed by the SLAO. 7. There are some undisputed facts on record. It is not in dispute that the present reference is filed in respect of portion of 5 godowns acquired from city survey NO.1991 situated in village Deolali gaothan, Nasik. It is not in dispute that the whole CTS No.1991 is owned by one S.N.Deshmukh. This property was taken by the respondents/claimants form S.N.Deshmukh on lease and the ancestors of the claimants have constructed five godowns thereon and they were sub letted to other persons. It is an admitted fact that the possession of the land was taken and it was given to the acquiring body at the time of payment of compensation. The only dispute in the present matter is in respect of the compensation awarded by the SLAO. According to the claimants, while awarding compensation, the SLAO has not taken into consideration the market value then prevailing on the date of notification under Section 4 of the Land Acquisition Act in the year 1985. According to them, the method applied by the SLAO for calculating the 8 valuation of the structure i.e. godowns is totally wrong because the SLAO has not taken into consideration the income derived from the said acquired structures to the extent of Rs.5000/- per month. The Special Land Acquisition Officer awarded Rs.29,917/- . The claimants claimed Rs.10,00,000/- with statutory benefits, interest and costs. CONCLUSIONS CONCLUSIONS CONCLUSIONS AND FINDINGS. AND FINDINGS. AND FINDINGS. 8. I have given my anxious consideration to the submissions made by the learned AGP for the State. I have also gone through the oral evidence as well as documentary evidence on record. To prove the claim, the respondents/claimants have examined PW-1 Mohammad Saheb Hassan Saheb Khatib, PW-2 Balkrishna Magar - the valuer and have produced documentary evidence on record i.e. the certificate issued by the valuer and the site inspection report of the lower Court. As against this, the appellant/State has produced on record the Award of the SLAO, certificate along with map, letter of executive engineer, the valuation date and the structural details along with the maps of five godowns. 9 9. P.W.1 Mohammedsab Khatib has stated in his examination-in-chief that the structure over CTS No.1991 belongs to him. The size of each godown is 322 sq.mtr. The godowns were given on hire basis. He was getting Rs.5251/- per month as a rent from those five godowns. He has produced on record the receipts. He has stated that acquisition officer has given him notice on 1.6.88 and thereby demanded possession 15.6.1988. He was not present at the time of taking possession and demolition of godowns. In his cross this witness has stated that his father took the land on lease basis from Deshmukh family. The acquired property is just adjacent to the railway goods shed Nashik Road. The trust came in existence in the year 1965. Till 1965, his father in law Z.Y.Khatib was only concerned with the acquired land. He has stated that before the lease deed there were godowns. He has further stated that some land was acquired for the purpose of corporation from CTS No.1991 and the land acquired for corporation and the land which is acquired for central waring house corporation are from Gat No.1991. He came in custody of all the accounts and documents in respect of business of Z.Y.Khatib. The numbers are given to the sheds. The five godowns were given to Thakur Sawadekar, Kombda Chhap Bidi, Sagar Plastic, Nagraj Dagadu and Chimansa Yamasa 10 10 10 Kshatriya on lease. There is no agreement with these tenants. At the time of recording of his evidence, these five persons were not their tenants. He has stated that they were maintaining accounts of income and expenditure in respect of Z.Y.Khatib account and Z.Y.Khatib trust account. He further stated that he is in possession of all the accounts of Z.Y.Khatib trust being Managing trustee and he used to receive the correspondence in his name as a Managing trustee. 10. The respondents/claimants have examined the valuer Balkrishna Magar. He has stated that he is an engineer from Pune University. He is doing his business from 1969. His work includes structural map, valuation, structure design etc. He issued a certificate dated 8th July 1988. It bears his signature. The contents of the certificate are true. He proved the said certificate. He has stated that the said certificate issued by him to his client Shri Mohammedsaheb Khatib Chief Trustee Z.Y.Khatib trust after inspecting the land. He inspected the said land on 27.6.1988. There were five separate godowns on the said land. He came to know that these were constructed in the year 1942. There was tin sheets roof on the godowns having support of wooden trusses. 11 11 11 He admitted in his cross examination that he prepared notes at the time of inspection. He has mentioned the measurement, details and construction equipments in that inspection notes. 11. So far as documentary evidence is concerned, the certificate (Exhibit 30) dated 8th July 1988 issued by the valuer supports the claim of the respondents/claimants that there were godowns in CTS No.1991. There is a site inspection report at Exhibit-36. The Joint District Judge, Nasik visited the disputed acquired land on 28.3.1998. At that time, the learned DGP and learned advocate for the claimant were present. At point II the Joint District Judge recorded that the godowns have already been demolished and taken by the Government. It means that there were godowns in existence. The map at Exhibit 38 reveals that there were godowns in CTS.No.1991. 12. From the evidence of valuer Magar it is clear that when he had visited the site in question, all the five godowns were standing there in CTS No.1991 and they were not collapsed. The State government on the other hand has produced valuation report of the Executive Engineer at Exhibit 59, who had valued the market value of the property acquired along with the 12 12 12 structure of godown thereon at Rs.7,16,660/-. The reference court has observed that the claimants themselves have averred in their reference that the Special Land Acquisition Officer has awarded compensation for the land at the rate of Rs.83 per sq.mtr. for the land admeasuring 547.85 sq.metres, which was under five godowns, to the owner of the said land. It is further observed that the said amount paid to owner Shri Shankarrao Naraynrao Deshmukh is shown as Rs.21,05,616. The lower court has come to the conclusion that when the claimants have failed to prove the rent received by them from the property acquired, then valuation of the godowns to be assessed on the basis of the actual valuation on the date of the acquisition as per the market rate then prevailing. The reference court found that the SLAO has given the total depreciated value of the 5 godowns at Ra.1,37,545. However, the SLAO has given the details of the valuation of the structure as Rs.29,917 and the same amount is shown in statement A as the valuation of the structure and godown. 13. The reference court has properly appreciated the evidence on record and came to the conclusion that the claimants have proved that the Special Land Acquisition Officer has awarded inadequate 13 13 13 compensation and they are entitled to get enhanced compensation with all statutory benefits. The reference court has rightly granted solatium at the rate of 30 per cent on the market value as per the provisions of Section 23(2) of the Land Acquisition Act and awarded interest at the rate of 12 per cent per annum on the market value from the date of notification under section 4 of the Act to the date of the Award or the date of the possession which is earlier. The reference court has perfectly justified in holding that the claimants are entitled to interest at the rate of 9 percent per annum from the date of possession for the first year and after its expiry further interest at the rate of 15 per cent per annum till realisation of the entire amount. In para 14 of its judgment, the reference court has calculated the compensation and answered Issue Nos.1 and 2 in the affirmative i.e. in favour of the claimants. 14. I found no reason to interfere with the impugned judgment and order of the reference Court. The reference Court has properly enhanced the amount of compensation and rate of interest. In the result, the appeal fails. It is dismissed accordingly. [S.S.SHINDE, [S.S.SHINDE, [S.S.SHINDE, J] J] J] 14 14 14