Shri G.N.Ghorpade v. State of Maharashtra

Mr.R.S.Patil h/f Mr.A.K.Abhyankar for the Appellant in -2- in F.A.Nos.547 of 1991 and 665 of 1991. F.A.Nos.813 of 1991 and 815/1991 and for the Respondent Mr.B.H.Mehta A.G.P. for the Appellant in F.A.No.547 of 1991 and F.A.no.665 of 1991 and for the Respondent in F.A.Nos.813 of 1991 and 815 of 1991. A.S.OKA,J. CORAM: A.S.OKA,J. CORAM: A.S.OKA,J. CORAM: : APRIL 4, 2008. DATE : APRIL 4, 2008. DATEDATE : APRIL 4, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT:

#1. These Appeals can be conveniently disposed of by a common Judgment.

#2. First Appeal No.813 of 1991 is preferred by the original claimants for challenging the Judgment and Award dated 21st March 1990 passed by the II Additional District Judge, Kolhapur in L.A.R.No.4 of 1985. The land subject matter of the said reference is bearing R.S. no.608 situated at Ichalkaranji, District Kolhapur. The area of the acquired land is 1200 sq.meter. Notification under section 126(4) of the Maharashtra Regional and Town Planning Act,1966 (hereinafter referred to as "the said Act of 1966") read with section 6 of the Land Acquisition Act,1894 (hereinafter referred to as "the said Act of 1894") was issued on 6th January 1983. The acquired land was reserved under the development plan for the purpose of resettlement of the slum dwellers. An award under section 11 of the said Act of 1894 was made on 18th February 1984. As the claimant did not accept the said award, at his instance, a reference has been made under section 18 of the said Act of 1894. In the -3- reference, the claim made for the compensation was at the rate of Rs.20/- per sq. foot. By the impugned Judgment and Award, the market value has been fixed at the rate of Rs.50/- per square meter (approximately Rs.4.65 per square foot). In addition to the market value, the reference court has granted statutory benefits under section 23(1-A), section 23(2) and section 28 of the said Act of 1894. In First Appeal No.813 of 1991, the original claimant is seeking market value at the rate of Rs.20/- per square foot. First Appeal No.547 of 1991 has been preferred by the State of Maharashtra seeking quashing of the same award.

#3. First Appeal No.815 of 1991 has been preferred by the original claimant for challenging the Judgment and Award dated 21st March 1990 passed by the learned II Additional district Judge, Kolhapur in L.A.R. No.3 of 1985. The acquisition relates to the land bearing R.S. No.575 situated at Ichalkaranji, District Kolhapur. Area of the acquired land is 1200 sq. meters. Notification under section 6 of the said Act, 1894 read with section 126 (4) of the said Act of 1966 was issued in this case on 20th January 1979. The acquired land was reserved for construction of a primary school in the development plan. The Award under section 11 of the said Act was made on 6th February 1984. As the said Award was not accepted by the claimant, at the instance of the claimant, a reference under section 18 of the said Act of 1894 was made. -4- The claim made by the claimant for market value in the said reference was at the rate of Rs.10/- per square foot. By the impugned Judgment and Award, the market value has been fixed by the reference court at the rate of Rs.50/- per square meter. The Statutory benefit under section 23(1-A), 23(2) and 28 have been granted by the reference court in addition to enhancement in the market value. First Appeal No.815 of 1991 has been preferred by the claimant claiming the market value at the rate of Rs.10/- per square foot. First Appeal No.665 of 1991 has been preferred by the State of Maharashtra for challenging the same Award where the prayer is made for quashing the said Award.

#4. The learned counsel for the claimants in the aforesaid Appeals has taken me through the notes of evidence and the relevant sale instances on record. He pointed out that the sale instances clearly establish that the market value of the comparable land in the city of Ichalkaranji at the relevant time was in the range of Rs.20/- to Rs.30/- per sq.ft. He invited my attention to the finding recorded by the reference court in L.A.R. No.4 of 1985 and in particular paragraph 10 thereof in which the reference court has observed that from the sale instances on record it appears that the average price of the plots in the vicinity of the acquired land was Rs.21/- to Rs.30/- per sq. ft. He pointed out that while deciding the L.A.R.No.3 of 1985, in paragraph 10 of the said Judgment, -5- similar observation has been made. He placed reliance on the Judgment of a Single Judge of this Court dated 7th December 2007 in First Appeal No.268 of 1997 (G.N.Ghorpade Vs. State of Maharashtra and another). He submitted that in case of similarly situated lands in the vicinity of the acquired lands which are subject matter of the present Appeals, this court has fixed the market value at the rate of Rs.40/- per sq foot. He pointed out that considering the nature of the evidence, and in view of the aforesaid decision of this court, the market value ought to have been fixed as prayed by the claimants.

#5. The learned Assistant Government Pleader submitted that the sale instances which are relied upon before the Reference Court are the sale instances of the developed lands and in the present Appeals we are dealing with the agricultural lands. He submitted that the sale instances of developed lands cannot be taken into consideration for determining the market value of the acquired lands. He submitted that some of the sale instances are required to be ignored as the same are of pre- notification sales. He also pointed out that the decision of this court in First Appeal No.268 of 1989 is not relevant as the relevant date for determination of the compensation in the said case is 21st July 1985. He, therefore, submitted that in absence of any reliable and relevant evidence on record, the Appeals preferred by the State of Maharashtra deserve to be -6- allowed and the Appeal preferred by the claimant deserves to be dismissed.

#6. I have carefully considered the submissions. It will be necessary to refer to the evidence adduced by the claimants. In L.A.R.No.4 of 1985, Shri Narhar Kulkarni, the constituted attorney of the claimant was examined. As pointed out earlier, in L.A.R.No.4 of 1985 the property subject matter of acquisition is R.S.No. 608. In the deposition, he stated that on the east and west of the acquired land there are buildings. And beyond those buildings there is a primary school. He deposed that both on the southern and northern sides there are buildings. He stated that the town of Ichalkaranji is known for powerlooms and open places are not easily available at Ichalkaranji.

#7. In the evidence, he referred to the land subject matter of the sale instance of the Nutan Nagari Sahakari Bank Ltd. (Exh.29). He stated that the said land was at the distance of 250 sq. feet from the acquired land. He also referred to the sale instance of the land purchased by Veershaiva Bank by stating that the said land was also at the distance of 250 feet from the acquired land. He stated that the property purchased by the Medical Association of Ichalkaranji was 150 feet away from the acquired land. In the cross examination, he admitted that on the relevant date, the acquired land was -7- an agricultural land. He stated that he did not apply for permission to use the acquired land for N.A. use. He denied the suggestion that the primary school was opened in the year 1983-84 after acquisition of the some of the properties.

#8. The second witness examined by the claimant in L.A.R.No.4 of 1985 is one Shri Shankar Ramchandra Poojari. At the relevant time the said witness was the Chairman of the Nutan Nagari Sahakari Bank Ltd., Ichalkaranji. He stated that the said bank purchased the land admeasuring 6677 sq. ft. on 22nd December 1978 at the price of Rs.1,95,310/-. He proved the sale deed in the evidence. He stated that before entering into the said transaction, the bank had made an enquiry regarding the market value of the property. In the cross examination, he admitted that the property was purchased for construction of a building of the bank as it was most convenient for the bank. He stated that before purchasing the said land, he inspected 4 to 5 properties. He stated that the city survey number was already given to the said land and there was a dilapidated house on the said land. He stated that the land was purchased along with a common wall.

#9. The third witness examined by the claimant in L.A.R.No.4 of 1985 is Shri Vishwanath Bandopant Kore who was in the employment of Veershaiv Bank since 1968. He stated that the bank purchased the land admeasuring 5262 sq.ft at the cost -8- of Rs.1,00,000/- in September 1974. He proved the sale deed in his evidence. In the cross examination he stated that the land purchased by the said bank is within the municipal limits of City of Ichalkaranji. He stated that the plot was purchased for the purpose of business of banking. He also stated that on the northern side of the said plot, there are buildings of the vendor and there were roads on the southern side and western side of the plot.

#10. In L.A.R.No.3 of 1985, Shri Narhar Kulkarni, the Constituted Attorney of the claimant was examined by the claimant. In this case, the land subject matter of the acquisition is R.S.No.575 of Ichalkaranji. Paragraph 3 of his deposition reads thus : "3. The suit land is bounded on east by 40’ wide road and beyond it there is a palace. The land is bounded on the west by a Drama theatre and by some bungalow type buildings. This land is bounded on the north by a portion of the same which we had told to one Mali and beyond that portion there are houses. The land is bounded on south by some houses. Ichalkaranji town is famous as an industrial centre. As the population has increased, there is scarcity of open plots at Ichalkaranji."

#11. He stated that the property of the Nutan Nagari Sahakari -9- Bank was at the distance of 150 feet of the acquired land subject matter of the said reference. The plot of the Medical Association is 100 feet away from the acquired land and the building of the Veershaiv Bank is at a distance of 200 to 250 feet from the acquired land. He admitted that at the time of acquisition, the suit land was used as an agricultural land. There was no lay-out either made or applied for in respect of the suit property at the time of its acquisition.

#12. As stated earlier, the relevant date in case of L.A.R. 4/85 is 6th January 1983 and the relevant date in case of L.A.R.no.3/1985 is 20th January 1979. Turning to the L.A.R.No.3/1985, the sale instance of the plot of land purchased by Veershaiva Bank may not be relevant as the date of transaction was of September 1974. In so far as the other sale instances at Exh.29 in L.A.R.No.4 of 1985 is concerned, the sale instance is of the land purchased by the Nutan Nagari Sahakari Bank Ltd. The said sale instance is relevant as the date of sale is 22nd December 1978. The said sale instance can be the basis for determining the market value of the acquired land subject matter of L.A.R.No.4 of 1985.

#13. Now turning to the land subject matter of L.A.R.No.3/1985, as narrated above, the said land was an agricultural land on the relevant date. The land subject matter of the sale instance of the Nutan Nagari Sahakari Bank -10- Ltd. which was purchased by the said Bank on 22nd December 1978 was a land to which city survey number was already given and there was a house in dilapidated condition on the said land. The land subject matter of the said sale instance was already put to non agricultural use. Moreover, the area of land subject matter of the said sale instance is 6677 sq. feet whereas the area of the acquired land is 1200 sq. meter. Thus, the area of the acquired land is nearly double in size of the area of land subject matter of the said sale instance. The area of the acquired land is very large. The constituted attorney of the claimant stated that the acquired land subject matter of the L.A.R.No.3/1985 was at the distance of 150 sq.feet from the land subject matter of the sale instances at Exh.29. Thus, the land subject matter of the sale instance is in close proximity of the acquired land. The market value reflected from the sale instance of the Nutan Nagari Bank Ltd. is approximately Rs.29.25 per sq.ft. The witness Shri Shankarrao Poojari admitted that when the property was purchased by the bank, there was one dilapidated house in the open land. Reliance has been placed on the decision of the First Appeal no.268 of 1997. However, in the said case, the relevant date was 21st July 1986 which is long after the relevant date in the case in hand. Therefore, it will not be proper to rely upon the said Judgment as the basis for the determination of the market value. -11-

#14. The Apex Court has held that the determination of the market value under section 23 of the said Act of 1894 always involves an element of guess work. However, the said guess work is to be made on the basis of the evidence of comparable sale instances. In L.A.R.No.3 of 1985, as stated earlier the area of the land is double in size of the area of the land covered by the Exh.29. The acquired land was an agricultural land as distinguished from the land subject matter of the said sale instance. Firstly, a deduction will have to be made on account of development charges. For determination of the market value, further deduction will have to be made as the land subject matter of Exh.29 was a land having a building. Though I have held that the Judgment in First Appeal No.268 of 1997 may not be relevant for deciding the market value in this case, the acquired land in the said Appeal was in the same locality and was acquired on 21st July 1986 and the market value has been fixed at the rate of Rs.40/- per sq.ft. Perusal of the said Judgment shows that the land subject matter of the said decision was close to the plot acquired by the Medical Association of Ichalkaranji and the said plot is close to the acquired land in this Appeal.

#15. The normal deduction on account of development charges ranges from 10% to 40%. In the present case, we are dealing with the plot of land in the developed city of Ichalkaranji. After making a deduction on account of development charges, -12- for arriving at market value on the basis of sale instances at Exh.29, further deduction will have to be made as on the relevant date not even an application was made for grant of permission to convert the land for the non agricultural use. Therefore, considering aforesaid facts, the market value of the land subject matter of L.A.R.No.3 of 1985 will have to be fixed at the rate of Rs.10/- per sq. ft. which was the claim made by the claimant.

#16. Now, turning to the L.A.R.No.4 of 1985, the land subject matter of the said L.A.R. is in the close vicinity of the land subject matter of L.A.R.No.3 of 1985. The land subject matter of the L.A.R.No.3 of 1985 is at the distance of 150 ft. from the land subject matter of the sale instance at Exh.29 whereas the land subject matter of L.A.R.No.4 of 1985 is at the distance of 250 meters from the land subject matter of Exh.29.The relevant date in L.A.R.No.4 of 1985 for determination of market value is 6th January 1983 as against the relevant date of 20th January 1979 in the case of L.A.R.No.3 of 1985.

#17. Perusal of Judgment in First Appeal No.268 of 1997 shows that the market value of the land in the same vicinity was fixed at Rs.40/- per sq.ft. as of July 1986 and as held above the market value of the similarly situated land in the year 1979 was approximately Rs.10/- per sq. -13-

#18. A judicial notice can be taken of the fact that from 1979 onwards the prices of similarly located properties have steadily increased.

#18. The market value awarded by the Reference court in L.A.R.No.4 of 1985 comes to approximately Rs.4.65 per sq. ft. In my view, the market value of the said land will have to be fixed at the rate of Rs.18/- per sq. ft.

#19. In these cases, Awards under section 11 have been made after 30th April 1982 and hence, there cannot be any dispute as regards the statutory benefits. Hence, the Appeal preferred by the claimant must succeed and the Appeals preferred by the State of Maharashtra will have to be dismissed.

#20. Hence, I pass the following order : i) First Appeal No.813 of 1991 is partly allowed. The market value fixed under the impugned Judgment and Award is modified and it is declared that the claimant will be entitled to the total market value calculated at the rate of Rs.18/- per sq. ft. In addition to the said market value, the claimant will be entitled to statutory benefits which are already granted under the impugned -14- Judgment and Award. The claimant will be entitled to proportionate costs of the Reference No.4 of 1985 as well as the proportionate costs of the Appeal from the State of Maharashtra. ii) The exercise of calculating the compensation payable on the basis of the modified award shall be completed by the Reference Court within a period of four months from the date on which the writ of the Judgment is received by the said court. iii) First Appeal No. 547 of 1991 is hereby dismissed with no order as to costs. iv) First Appeal No.815 of 1991 is allowed. The market value fixed by the impugned Judgment and Award is modified. It is declared that the claimant will be entitled to the total market value of Rs.10/- per sq. ft. In addition to the market value, the claimant will be entitled to statutory benefits which are already granted under the impugned Judgment and Award. The claimants will be entitled to costs of the reference as well as costs of the Appeal from the State of Maharashtra. v) The exercise of calculating the compensation payable under the impugned Award shall be completed by the -15- Reference Court within a period of four months from the date of receipt of the writ of this judgment. vi) First Appeal No.665 of 1991 is dismissed with no order as to costs. JUDGE JUDGE JUDGE