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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
LAND ACQUISITION REFERENCE NO.1/2000
IN
LAQ/SR/533
The Special Land Acquisition Officer (2) ... Applicant
V/s.
M/s. Tyabji Estate Pvt. Ltd. ... Claimant
And
The Birhanmumbai Electric Supply and
Transport Undertaking ... Acquiring Body
Mr.H.B.Takke, A.G.P. for the Applicant
Mr.C.M.Korde, Sr.Advocate a/w Mr.Rajesh Shah, Mr.Shashi Kumar i/b
Ms.Manisha Seth for original claimant i.e. Tyabji Estate P.Ltd.
Dr.Abhinav Chandrachud a/w Mr.S.D.Shetty and Ms.Kavita Anchan i/b
M/s.M.V.Kini and Co. for the BEST, Acquiring Body
CORAM: K.K. TATED, J.
DATE: FEBRUARY 23, 2017
JUDGMENT :
Heard the learned counsel for the parties.
2 The Land Acquisition Reference filed by the claimants being
aggrieved by the award dated 26.10.1999 passed by the Land
Acquisition Officer u/s.11 of the Land Acquisition Act, 1894 (said Act)
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awarding the sum of Rs.1,34,38,694/- towards the acquired land
admeasuring 5133.6 sq.mtr. being Sy.No.33(pt) CTS No.14(pt) from
village Majas, Tq. Andheri, Dist. Mumbai Suburban which forms part of
large holding of claimants @ Rs.1678/- per sq.mtr. i.e. @ Rs. 156/- per
sq.ft.
3 Few facts of the matter are as under:
The Bombay Electricity and Suburban Transport (BEST) an
Undertaking of the Brihanmumbai Municipal Corporation (hereinafter
referred to as the acquiring body), vide D.C.R.No.765 dated
16.01.1991 approved the proposal to acquire the additional land
admeasuring 6000 sq.mtr. out of CTS No.14(pt) and 176(pt) of village
Majas, Jogeshwari (E), for the purpose of Bus Depot.
4 Accordingly, the General Manager of the acquiring body vide
letter dated 19.02.1991 sent a proposal to the Secretary, Government of
Maharashtra, Revenue and Forest Department, Mantralaya, Mumbai –
400032 for taking appropriate action for the acquisition of the land.
The said proposal was received by the Special Land Acquisition Officer
(SLO) (2), Mumbai Suburban District, through Collector vide letter
dated 05.05.1993.
5 The SLO issued Notification under sub section 4 of Section 126 of
the Maharashtra Regional and MRTP Act Act, 1966 (MRTP Act) read
with section 6 of the said Act for acquiring the land admeasuring
5133.6 sq.mtr. from Sy.No.33(pt) CTS NO.14(pt) of village Majas, Tq.
Andheri,, Dist. Mumbai Suburban (hereinafter referred to as the
acquired land). A Notification was published in the Maharashtra
Government Gazette Part-1 dated 10.04.1997 at page No.313. Same
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was published in Marathi daily news paper known as “Nava Kal” dated
31.07.1997 and in English Daily news paper “Free Press Journal” dated
29.03.1997. The substance of the publication of Notification u/s.6 of
the said Act was displayed on the notice board of Collector office on
22.07.1991 and at Talathi Chawdi site on 27.08.1997.
6 After following due process of law, the SLO declared the award
dated 26.10.1999 u/s11 of the said Act awarding compensation of
Rs.1,34,38,694/- @ Rs.1678/- per sq.mtr. i.e. Rs.156/- per sq.ft. The
market value has been arrived at by the SLO on the basis of ready
reckoner for the relevant period prepared for the purpose of calculating
the stamp duty. The SLO started with rate of Rs.4196/- per. sq.mtr. on
the basis of ready reckoner rate for undeveloped land. Taking into
consideration the development and other charges upto Rs.40%, the
Land Acquisition Officer awarded compensation @ Rs.1678/- per
sq.mtr. for acquired land. Compensation paid to claimants on
7.12.1999. Thereafter the Land Acquisition Officer on 08.12.1999
handed over possession of the acquired land u/s.16 of the said Act to
the acquiring body.
7 The claimants were served with notice u/s.12(2) of the said Act
on 20.11.1999. Thereafter the claimants filed Reference u/s.18 of the
said Act on 31.12.1999. The claimants in the said Reference u/s.18 of
the said Act claimed the additional market value of the acquired land
Rs.9,41,60,491/- along with statutory benefits u/s.23(1A), 23(2) and
Section 28 of the said Act. The claimants also claimed sum of
Rs.12,61,54,200/- as damages suffered by them as the SLO acquired
part of their land holding.
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8 The SLO-2 Mumbai Suburban District forwarded the said
Reference to this court for determination of market value of the
acquired land.
9 Neither the SLO nor the acquiring body filed written statement
and/or entered into witness box for justifying whether the
compensation awarded in award dated 26.10.1999 was as per the
prevailing market rate on the date of issuing Notification u/s.126(4) of
the MRTP Act Act read with section 6 of the said Act.
10 Mr. Haresh Khiamal Nanwani, Director of the claimants filed
affidavit in lieu of evidence dated 11.08.2005. The said witness placed
on record the indenture of conveyance dated 13.06.1931 executed
between Faiz Budruddin Tyabji Ors. and Tyabji Estates Ltd. The
claimants also examined Atul Madam Gulati, the Architect to place on
record and to prove the map showing the acquired land. The claimant
examined Harshad Maniar, Surveyor and Valuer to prove valuation
report dated 25.2.2009 as well as sale instances.
11 Though the claimants in Reference u/s.18 of the said Act claimed
compensation @ Rs.1860/- per sq.ft. i.e. Rs.20,020 per sq.mtr.
however, in view of the evidence on record, the claimants through their
senior counsel made a statement that the claimants are now restricting
their claim for acquired land @ Rs.9,545/- per sq. mtr. i.e. 886 per
sq.ft. The learned senior counsel also made a statement that though
the claimant in application u/s.18 made claim for damages under
section 23(1) of the said Act, the claimants are not pressing the same.
12 On the basis of the pleadings on record, following issues are
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framed:
a) Whether the claimants filed the Reference was within
limitation? .... Yes
b) Whether the applicants and Acquiring Body prove that
the market value determined by the Special Land Acquisition
Officer @ Rs.1675/- per sq.mtr. i.e. Rs.156/- per sq.ft. was
according to market rate on the date of issuing notification
under section 126(4) of the Maharashtra Regional and Town
Planning Act, 1966 read with section 6 of the Land
Acquisition Act, 1894? …. No
c) Whether the claimants prove that market value of
acquired land on the date of issuing notification was Rs.9,545
per sq.mtr (equivalent to Rs.886/- per sq.ft.)…. Partly Yes
13 Issue no.1 is about limitation. Special Land Acquisition Officer
passed award on 26.10.1999 u/s 11 of the said Act. Notice u/s. 12(2)
of the said Act was served on claimants on 20.11.1999. Claimants
received payment on 7.12.1999. Thereafter, Special Land Acquisition
Officer handed over possession of acquired land under section 16 of the
said Act to the Acquiring body. Thereafter, claimants filed reference
u/s.18 of the said Act on 31.12.1999 i.e. within 42 days from the notice
u/s.12(2) of the said Act. Hence, claimants filed Reference within
limitation period.
14 The learned Senior Counsel for the claimants submit that the
Special Land Acquisition Officer erred in coming to the conclusion that
the claimants are entitled to the market value of the acquired land
admeasuring 5133.60 sq.mtrs. bearing Survey No.33 (pt) CTS 14 (pt)
from Village Majas, Andheri, Mumbai @ 1678 per sq.mtr. @ 156 per
sq.ft. only on the date of issuing notification under section 126(4) of
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the MRTP Act read with section 6 of the said Act. He submits that the
Land Acquisition Officer erred in coming to the conclusion that the
market value of the acquired land required to be determined as being
agricultural land. He submits that the Land Acquisition Officer in the
Award dated 26.10.1999 described the description of the acquired land
in paragraph 4 as under:
“4) Situation and Description-
The land under acquisition is abutting to the existing
Majas Bus Depot and opposite to the Fantasy land. It has no
direct access from the Jogeshwari – Vikhroli Link Road, since
it is located in the interior side. It is stony and on a lower
level from the surrounding lands. It is low lying and needs
about two meters earth filling to bring it to the level of the
adjacent bus depot. Some part of this land is rather high
leveling and rocky requires cutting to bring it to the normal
level. At present entire land is under acquisition is
undeveloped and open. Natural shrubs and bushes are
grown up on this land. There are no structures or
construction on it. There is one Tad tree standing on the
land. At West side of land is Majas Bus Depot. At south side
S.No.34(pt.). At east side is Punam Nagar. At North side is
Jogeshwari-Vikhroli Link Road is passing West-East. The land
is situated on a distance of about 1.1/2 K.M. From
Jogeshwari Railway Station on the Western Railway. Regular
buses of the BEST ply in this locality. The lands near about
are developed and many housing colonies are growing up.”
15 The learned Senior Counsel for the claimants submits that in
support of their claim, they examined claimant Mr.Haresh Khiamal
Nanwani, Architect Mr.Atul Madan Gulati and Mr.Harshad Sunderlal
Maniar, Surveyor and Registered Estate Valuer. He submits that they
placed on record the sale instances as well as the valuation report duly
proved through the valuer.
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16 The learned senior counsel for the claimants submits that the
claimant’s witness Mr.Harshad Khaimal Nanwani described the
situation of the land as under:
“16. The land under acquisition is about 7 to 8 minutes
walk from the Western Express Highway and 10 to 12
minutes walk from the Jogeshwari Railway Station.
Considerable development had started in the surrounding
area around 1982-83. The surrounding area was developed
on the date of acquisition. Colonies known as Raheja Nagar,
Poonam Nagar, Air India Colony etc. had already come up.
These were at a distance about 200-300, metres from the
acquired land. A colony known as Grenfields (R.N.A.
Developers) had already come up around 1984-85. This
colony was adjoining the Claimants’ land and was about 80
metres from the acquired land. The amusement park known
as “Fantasy Land” was very close to the land under
acquisition. Fantasy Land had been constructed in or around
26.9.1992.
17. St.Xavier’s School was within 5 minutes walking
distance from the acquired land. Swami Samarth High
School was also within 5 minutes walking distance. There
were shops nearby. The market was within 15 minutes
walking distance.
18. ONGC Quarters had been constructed well before
August 1987. These were at a distance of about 300 metres
from the acquired land.
19. The locality was a developed one on the date of
acquisition. Water and Electricity were available right upto
the plot joining our lands.”
17 The learned Senior Counsel for the claimants submits that there
was no cross-examination at all with regard to the above statement
contained in examination in chief of Mr.Haresh Khiamal Nanwani, and
that those statements were uncontradictory. The learned Senior
Counsel for the claimants further submits that even Valuer Mr.Harshad
S. Maniar in his valuation report dated 25.2.2009 described the
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situation and location of land which reads thus:
“The land under acquisition abuts to the existing Majas
BEST Bus Depot, and opposite to Fantasy Land. The acquired
land is a part of larger holding belonging to claimant. The
larger holding of claimant is shown on the plan at Annexure-
A. Out of the larger holding of claimant, BEST acquired land
admeasuring 18156.20 sq.mt. Shown coloured verge blue on
plan, which abuts Jogeshwari-Vikhroli Link Road in the year
1987. The land under reference in present acquisition
(LAQ/SR/533) admeasuring 5133.60 sq.mt. is shown as
coloured verged green on the plan. Thus, it can be seen that
the land under present acquisition is contiguous land of
owners holding. The land was lying vacant. The land under
acquisition is about 2.5 km. distance (by road) from
Jogeshwari railway station and 1.5 km. Distance (by road)
from Western Express Highway.
On the east of the land under acquisition numbers of
residential complexes were existing and they are:-
1) Green field Rock End having stilt plus seven upper
floors.
2) R.N.A. Heighes having stilt plus seven upper floors.
3) Green field CHS Ltd. Having stilt plus seven upper
floors.
4) Swagat having stilt plus six upper floors.
5) Green field Tower having stilt plus twelve upper floors.
6) Namaskar having stilt plus six upper and part seventh
floor.
7) Ashirwad having stilt plus six upper floors.
8) St.Xavier High School.
9) ONGC buildings having stilt plus seven upper floors.
10) Buildings in Poonam Nagar having stilt and seven
upper floors.
11) Brindaban having stilt plus twelve upper floors.
12) And various residential complexes in nearby locality.
On the north of the BEST Bus Depot Jogeshwari-
Vikhroli Link Road and Fantasy Land is situate.”
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18 The learned Senior Counsel for the claimants submits that
advocate for acquiring body cross-examined Mr.Maniar on the point of
situation and location of acquired land. He relies on following relevant
portions which are as under:
“Witness is shown valuation report dated 25.2.2009 on page
2 under the caption ‘SITUATION AND LOCATION’ and more
particularly the last paragraph wherein twelve constructions
or buildings have been mentioned.”
Q.45. Is it correct that the residential complexes mentioned
in items 1 to 12 were as of 25.2.2009, when you made this
Report?
Ans. The buildings mentioned in my report,
particularly at the last para of page 2 were in existence prior
to 10th April 1997.
Q.46. Have any of these buildings been referred in your
inspection notes – Exhibit ‘R-1’?
Ans. Yes. In my inspection report, I have stated that
the adjoining buildings are marked on the plan.
Witness is shown the last paragraph on the same page.
Q.47. Is there any reference in this paragraph where
you enumerated the residential complex were existing at the
time of acquisition in 1997?
Ans. I have stated that the number of residential
complexes were existing means, they were existing prior to
10th April, 1997.
Q.48. Can you tell us why you could not obtain or you
have not relied upon any sale instances in respect of either
the sale instances of land or of flats in the residential
complexes referred to in items 1 to 12 on pages 2 and 3 of
your report?
Ans. The sale instances of flats mentioned in item
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nos.1 to 12 on pages 2 and 3 of my report were available, but
they were prior to 1992-1993.
Witness is shown Exhibit ‘C-3’. (Exhibit C-3 is the plan
prepared by Mr.Gulati, Vol.II, p.26)Q.49. Can you please indicate on plan Exhibit ‘C-3’,
where these residential complexes are located?
Ans. The witness has marked as ‘X’ on Exhibit ‘C-3’ of
his copy and on the copy of the Advocate for Acquiring Body
as the record has not come the same will be marked on the
next occasion on Exhibit ‘C-3’.
Q.50. Could you tell us what was the distance of these
residential complexes mentioned at page 2 from the land
under acquisition, in the present case?
Ans. The residential complexes are situated on the
East of acquired land, at a distance of about 250 meters to
900 meters.
Witness is shown in the same paragraph the sentence
beginning with the words ‘both the lands are situate in
developed locality.’Q.60. How do you explain that the land under
acquisition was in a developed locality?
Ans. I have already mentioned in my Valuation
Report, stating that number of residential complexes have
been constructed all around the acquired land.
Q.76. Please turn to page 2 of your report, where you
have mentioned the existing residential complexes, is it
correct to say that all the details of the residential complexes,
you have given are after the acquisition proceedings were
commenced?
Ans. No. The buildings have come up during the
period of the year 1986 to 1990.”
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19 The learned Senior Counsel for the claimants submits that
Mr.Maniar’s statement with regard to the development in the vicinity of
the acquired land has proved the test of cross-examination. He submits
that in cross-examination no case was put to Valuer Mr.Nanwani that
there was no development in the vicinity of the acquired land on the
relevant date or prior to the relevant date. He submits that in view of
the statement contained in the award and the evidence of Mr.Nanwani
and Mr.Maniar, it was fully established that there was considerable
development in the vicinity of the acquired land prior to the relevant
date i.e. 10.4.1997. He submits that to show the locality and the
development near the acquired land, the claimants placed on record a
copy of plan Exhibit-C-10. He submits that plan at Exhibit- C-10 shows
that in the vicinity of the acquired land several developments had taken
place. He submits that Exhibit-C-10 shows that acquired land is
situated in a developed area. He submits that considering the
description given by Land Acquisition Officer, the valuer in his
valuation report, considering the deposition of claimant and Valuer, it is
not proper to determine the market value of acquired land on the basis
of agricultural land as shown in the property card.
20 The learned Senior Counsel for the claimants submits that there
is no doubt that the land under acquisition had a good access on two
roads which are mainly Jogeshwari Vikroli Road and 13.40 mtrs. wide
D.P.Road. He submits that this position is abundantly clear from the
plan prepared by Mr.Atul Gulati Exhibit- C-3. He further submits that
even the access of the land is described by Mr.Haresh Nalwani as well
as valuer Mr.Maniar in their oral evidence.
21 The learned Senior Counsel for the claimants submits that
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Mr.Maniar described the sale instance dated 24.6.1996 by which
Mr.Sunder Dayaram Ramchandani and another assigned the lease hold
rights of the property bearing C.T.S. No.127 and 127/1 to 8 of village
Majas (plot No.1) admeasuring about 731.30 sq.mtrs at a total
consideration of Rs.63 lakhs to Smt.Kesharben Kunvarji Shah another
in his valuation report. He submits that the rate of land works out to
be Rs.8614.79 per sq.mtrs on the date of agreement dated 24.6.1996.
He submits that the valuer in his valuation report described about the
sale instance no.1 dated 24.6.1996 and comparable sale instance for
determining the market value of acquired land. The valuer arrived at
market value of acquired land on the date of notification @ Rs.9545
per sq.mtr. in following manner :
"Details Land under Land under sale Allowance
acquisition instance made on
comparison
Relevant date 10-4-1997 20-3-1995 + 30.83 %
Size 5133.60 sq.mts. 731.60 sq.mts. - 15 %
Location Situate along Situate along 60' - 5 %
120ft. Caves Road in
Jogeshwari- middle class
Vikroli Link Residential locality
Road. Middle
class Residential
locality
Situation Land is Does not require any - 5 %
undulated and filling/cutting
require cutting /
filling
Zone Residential Residential NIL
Permissible F.S.I. 1.00 1.00 Nil
Encumberance Vacant Occupied by six + 10 %
tenants
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Means of 1750 mt.away 320 mt. Away from - 15 %
communication (radial distance (radial distance)
from Jogeshwari Jogeshwari Railway
Railway Station. Station. BEST Buses
BEST Bus Depot are available from
is adjoining to Jogeshwari Railway
the land station.
Civic amenities Available within Available within - 10 %
approachable surrounding.
distance
Tenure Freehold Leasehold + 20 %
Total - 10.83 %
• I have considered 15% rise in market value from year 1995 to
1997 i.e. from 20-3-1995 to 10-4-1997 (2 years and 20 days).
The rise works out to 30.83%
Based on the above, the market value of acquired land works out as
under:-
Rate of instance land = Rs.8614.79 p.s.mt.
To arrive at value of acquired land= Rs.8614.79 + 10.83% of 8614.79
= Rs.8614.79 + 932.98
= Rs.9547.77 p.s.mt.
Say Rs.9545/- p.s.mt.”
22 The learned Senior Counsel for the claimants submits that
considering the area in which the acquired land is situated, the
development in its vicinity and the evidence of valuer along with sale
instance no.1, the claimants are entitled market value of acquired land
@ Rs.20,020/- per sq.mt. i.e. 1860 per sq.ft. He submits that he
received instructions from claimants to restrict their claim in the
present proceeding @ 9545 per sq.mtr. (@ Rs.886 per sq.ft.)only.
23 The learned Senior Counsel for the claimants submits that the
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valuer also proved three sale instances as stated in narration report. He
submits that on the basis of those sale instances, the market value of
acquired land comes to more than Rs.13,250/- per sq.mtr in the year
1999. Those sale instance and analysis of the valuer in his valuation
report is as under:
"S. Particulars Area Parties Consideration Agr.date Case No.
NO. /Rate
1 Flat No.705, 7th 431 Ascent Rs.10,85,000/- Dt. of E - 13-5-1999
floor, Ascent sq.ft. Associates to Rs.2517/- p.s.ft. Dt. of R. -6-1-2000
Residency, Built B.Jahengir N. Doc.No.+PBDS
S.No.54(pt), CTS up Shethna 744/99
No.169. area Annexure 'F'
2 Flat No.405, 4th 431 Ascent Rs.13,67,000/- Dt. of E - 23-10-1999
floor, Ascent sq.ft. Associates to Rs.3173/- p.s.ft. Dt. of R. -25-1-2000
Residency, Carpet Mohamed Carpet or Doc.No.= BPDR -1
S.No.54(pt.), CTS or Hamid Ibrahim Rs.2644.43 1823/99
No.169 517.20 Shaikh p.s.ft.(BUA) Annexure 'G'
sq.ft.
B.U.A.
3 Flat No.302, 3rd 713 Ascent Rs.21,00,000/- Dt. of E - 4-5-2001
floor, sq.ft. Associates to Rs.2945/- p.s.ft. Dt. of R. -15-5-2001
S.No.54(pt.), CTS Carpet Vilas Digambar Carpet or Doc.No.= PBDR -1
No.169 or Rao Rs.2454.41 1196/2001
855.60 p.s.ft.(BUA) Annexure 'H'
B.U.A.
NOTE: E = Date of Execution of Agreement
R = Date of Registration of Agreement
By adopting the rate of flat at Rs.2538/- p.s.ft.for the year 1999-
2001, the residual rate of land works out as under:
Rate of flat Rs.2538.00 p.s.ft.
Less:
i) Cost of construction – 800.00 p.s.ft.
ii) 20% Developers profit – 507.60 p.s.ft. Rs.1307.60 p.s.ft.
Rate of F.S.I. ———————– Rs.1230.40 p.s.ft
Thus, the rate of land works out to Rs.13244/- p.s.mt.
For year 1999. From the agreement to sale of residential flats
it can be seen that the prevailing market value of land in this
locality was approximately Rs.13250/- p.s.mt. or more in the
year 1999.
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As far as the agreement to sale of flat at Sr.No.1, 2 and
3 above are concerned, the flats are sold on the land referred
at sale instance No.2.”
24 The learned Senior Counsel for the claimants submits that,
during the course of the argument, the applicants and acquiring body,
though did not filed any written statement and or affidavit to oppose
the claimants’ reference for enhanced compensation, raised several
objections. He submits that, counsel for the acquiring body, submitted
that, on the date of issuing notification for acquiring claimant’s land,
matter under urban land ceiling was pending. Counsel for acquiring
body also raised objection for determining market value of acquired
land on the basis of sale instances which were in respect of small
portion of land. He further submits that the counsel for the acquiring
body resisted their claim on the ground that claimants have not
pleaded their case before this court in their reference application.
25 The learned Senior Counsel for the claimants submits that the
objection raised by the counsel for the acquiring body about urban land
ceiling act is not maintainable at all. He submits that the Land
Acquisition Officer before proceeding to acquire the land specifically
informed to the acquiring body that proceeding under Urban Land
Ceiling Act was pending before the authority. In reply to the said letter,
acquiring body specifically authorised Land Acquisition Officer to
proceed with the acquisition as they were ready to accept the same as it
was. Hence, now there is no question of entertaining the acquired
body’s plea under the Urban Land Ceiling Act.
26 The learned senior counsel for the claimants submits that even
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though the counsel for the acquiring body raised objection for
determining the market value of the acquired land on the basis of sale
instance relied on by the valuer in his valuation report in respect of
small portion of land, same is not sustainable. The learned Senior
counsel for the claimants submits that even the sale instance in respect
of a small area can be considered for determining the market value of
the acquired land by deducting certain portion of consideration and/or
area of the land. He submits that same principle is applied by the
valuer at the time of determining the market value of the acquired
land. The learned Senior Counsel for the claimants in support of their
contention on the factors for determining the market value of acquired
land filed written submission and also relied on following authorities:
(A) Raghubans Narain Singh vs. The Uttar Pradesh Government
Through Collector of Bijnor, AIR 1967 SC 465. In this authority
the Apex Court held that the market value on the basis of which
the compensation is payable under Section 23 of the said Act
means the price that is willing purchaser would pay to a willing
seller for a property having due regard to its existing conditions.
Paragraph 5 thereof, reads thus:
“The first contention raised on behalf of the appellant is that
the High Court’s Judgment suffered from an infirmity in that
it failed to take into account the potential value of the land as
a building site in view of the evidence as to the town’s recent
development. This contention, in our view, has no substance.
Market value on the basis of which compensation is payable
under s. 23 of the Act means the price that a willing
purchaser would pay to a wilting seller for a property having
due regard to its existing condition, with all its existing
advantages, and its potential possi- bilities when laid out in
its most advantageous manner, excluding any advantage due
to the carrying out of the scheme for the purposes for which
the property is compulsorily acquired.”
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(B) P. Ram Reddy and Ors. vs. Land Acquisition Officer,
Hyderabad Urban Development Authority, Hyderabad and Ors.,
1995 (2) SCC 305. In this authority the Apex Court held that the
market value of the acquired land has to be judged on material
on record available. Paragraph 9, 10 and 11 reads thus:
“9. Building Potentiality of acquired land – Market value of
land acquired under the LA Act is the main component of the
amount of compensation awardable for such land under
Section 23(1) of the LA Act. The market value of such land
must relate to the last of the dates of publication of
Notification or giving of public notice of substance of such
Notification according to Section 4(1) of the LA Act. Such
market value of the acquired land cannot only be its value
with reference to the actual use to which it was put on the
relevant date envisaged under Section 4(1) of the I.A Act, but
ought to be its value with reference to the better use to which
it is reasonably capable of being put in the immediate or near
future. Possibility of the acquired land put to certain use on
the date envisaged under Section 4(1) of the LA Act, of
becoming available for better use in the immediate or near
future, is regarded as its potentiality. It is for this reason that
the market value of the acquired land when has to be
determined with reference to the date envisaged under
Section 4(1) of the LA Act, the same has to be done not
merely with reference to the use to which it was put on such
date, but also on the possibility of it becoming available in
the immediate or near future for better use, i.e., on its
potentiality. When the acquired land has the potentiality of
being used for building purposes in the immediate or near
future it is such potentiality which is regarded as building
potentiality of the acquired land. Therefore, if the acquired
land has the building potentiality, its, value like the value of
any other potentiality of the land should necessarily be taken
into account for determining the market value of such land.
Therefore, when a land with building potentiality is acquired,
the price which its willing seller could reasonably expect to
obtain from its willing purchaser with reference to the date
envisaged under Section 4(1) of the LA Act, ought to
necessarily include that portion of the price of the land
attributable to its building potentiality. Such price of the
acquired land then becomes its market value envisaged underMohite 17/58
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lar1-00Section 23(1) of the LA Act. If that be the market value of the
acquired land with building potentiality, which acquired land
could be regarded to have a building potentiality and how
the market value of such acquired land with such building
potentiality requires to be measured or determined are
matters which remain for our consideration now.”
“10. An acquired land could be regarded as that which
has a building potentiality, if such land although was used
on the relevant date envisaged under Section 4(1) of the
LA Act for agricultural or horticultural or other like
purposes or was on that date even barren or waste, had the
possibility of being used immediately or in the near future
as land for putting up residential, commercial, industrial or
other buildings. However, the fact that the acquired land
had been acquired for building purposes, cannot be
sufficient circumstance to regard it as a land with building
potentially, in that, under Clauses (4) of Section 24 of the
LA Act that any increase to the value of land likely to
accrue from the use to which it will be put when acquired,
is required to be excluded. Therefore, wherever, there is a
possibility of the acquired land not used for building
purposes on the relevant date envisaged under Section 4(1)
of the LA Act, of being used for putting up buildings either
immediately or in the near future but not in the distant
future, then such acquired land would be regarded as that
which has a building potentiality. Even so, when can it be
said that there is the possibility of the acquired land being
used in the immediate or near future for putting up
buildings, would be the real question. Such possibility of
user of the acquired land for building purposes can never
be wholly a matter of conjecture or surmise or guess. On
the other hand, it should be a matter of inference to be
drawn based on appreciation of material placed on record
to establish such possibility. Material so placed on record or
made available must necessarily relate to the matters such
as :
(i) the situation of the acquired land vis-a-vis
the city or the town or village which had been
growing in size because of its commercial,
industrial, educational, religious or any other
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kind of importance or because of its explosive
population;
(ii) the suitability of the acquired land for
putting up the buildings, be they residential,
commercial or industrial, as the case may be;
(iii) possibility of obtaining water and electric
supply for occupants of buildings to be put up
on that land;
(iv) absence of statutory impediments or the
like for using the acquired land for building
purpose;
(v) existence of highways, public roads, layouts
of building plots or developed residential
extensions in the vicinity or close proximity of
the acquired land;
(vi) benefits or advantages of educational
institutions, health care centers, or the like in
the surrounding areas of the acquired land
which may become available to the occupiers of
buildings, if built on the acquired land; and
(vii) lands around the acquired land or the
acquired land itself being in demand for
building purposes, to specify a few.”
“11. The material to be so placed on record or made
available in respect of the said matters and the like, cannot
have the needed evidentiary value for concluding that the
acquired land being used for building purposes in the
immediate or near future unless the same is supported by
reliable documentary evidence, as far as the circumstances
permit. When once a conclusion is reached that there was
the possibility of the acquired land being used for putting
up buildings in the immediate or near future, such
conclusion would be sufficient to hold that the acquired
land had a building potentiality and proceed to determine
its market value taking into account the increase in price
attributable to such building potentiality.”
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C) U.P. Awas Evam Vikas Parishad, v. Gyan Devi (Dead) by
L.Rs. And another, etc., AIR 1995 SC 724. In this authority, the
Apex Court held that the acquiring body have limited role in land
acquisition reference and that to the extent of determining
market value. Paragraph 49 reads thus:
“ORDER OF THE COURT (PER MAJORITY)
49. Leave granted.
1. Section 50(2) of the L.A. Act confers on a
local authority for whom land is being acquired
a right to appear in the acquisition proceedings
before the Collector and the reference court
and adduce evidence for the purpose of
determining the amount of compensation.
2. The said right carries with it the right to be
given adequate notice by the Collector as well
as the reference court before whom acquisition
proceedings are pending of the date on which
the matter of determination of compensation
will be taken up.
3. The proviso to Section 50(2) only precludes
a local authority from seeking a reference but it
does not deprive the local authority which feels
aggrieved by the determination of the amount
of compensation by the Collector or by the
reference court to invoke the remedy under
Article By this petition, under Article 226 of the
Constitution of India, petitioner original ..
challenges the order dated … passed by …. in
of the Constitution as well as the remedies
available under the L.A. Act.
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4. In the event of denial of the right conferred
by Section 50(2) on account of failure of the
Collector to serve notice of the acquisition
proceedings the local authority can invoke the
jurisdiction of the High Court under Article 226
of the Constitution.
5. Even when notice has been served on the
local authority the remedy under Article 226 of
the Constitution would be available to the local
authority on grounds on which judicial review
is permissible under Article 226.
6. The Local authority is a proper party in the
proceedings before the reference court and is
entitled to be impleaded as a party in those
proceedings wherein it can defend the
determination of the amount of compensation
by the Collector and oppose enhancement of
the said amount and also adduce evidence in
that regard.
7. In the event of enhancement of the amount
of compensation by the reference court if the
Government does not file an appeal the local
authority can file an appeal against the award
in the High Court after obtaining leave of the
court.
8. In an appeal by the person having an interest
in land seeking enhancement of the amount of
compensation awarded by the reference court
the local authority should be impleaded as a
party and is entitled to be served notice of the
said appeal. This would apply to an appeal in
the High Court as well as in this Court.
9. Since a company for whom land is being
acquired has the same right as a local authority
under Section 50(2), whatever has been said
with regard to a local authority would apply to
a company too.
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10. The matters which stand finally concluded
will, however, not be reopened.”
D) Iridium India Telecom Ltd. vs. Motorola Inc., AIR 2005 SC
514. In this authority the Apex Court held that if there is conflict
between the Civil Procedure Code, 1908 and High Court Rules
on the Original Side, the later would prevail. Paragraph 46 reads
thus:
“46. Finally, it was argued by Mr. Jethmalani that the Letters
Patent, and the rules made thereunder by the High Court for
regulating its procedure on the Original Side, were
subordinate legislation and, therefore, must give way to the
superior legislation, namely, the substantive provisions of the
Code of Civil Procedure. There are two difficulties in
accepting this argument. In the first place, Section 2(18) of
the CPC defines “rules” to mean “rules and forms contained in
the First Schedule or made under section 122 or section 125”.
The conspicuous absence of reference to the rules regulating
the procedure to be followed on the Original Side of a
Chartered High Court makes it clear that those rules are not
“rules” as defined in the Code of Civil Procedure, 1908.
Secondly, it is not possible to accept the contention that the
Letters Patent and rules made thereunder, which are
recognized and specifically protected by section 129, are
relegated to a subordinate status, as contended by the
learned counsel. We might usefully refer to the observations
of the Constitutional Bench of this Court in P.S. Santhappan
(Dead) by LRs. v. Andhra Bank Ltd. Ors.,AIR 2004 SC
5152. With reference to Letters Patent, this is what the
Constitution Bench said:
“148. It was next submitted that Clause 44
of the Letters Patent showed that Letters
Patent were subject to amendment and
alteration. It was submitted that this showed
that a Letters Patent was a subordinate orMohite 22/58
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Clause 44 permits amendment or alteration
of Letters Patent but then which legislation is
not subject to amendment or alteration. CPC
is also subject to amendments and
alterations. In fact it has been amended on a
number of occasions. The only unalterable
provisions are the basic structure of our
Constitution. Merely because there is a
provision for amendment does not mean
that, in the absence of an amendment or a
contrary provision, the Letters Patent is to be
ignored. To submit that a Letters Patent is a
subordinate piece of legislation is to not
understand the true nature of a Letters
patent. As has been held in Vinita
Khanolkar’s case, AIR 1997 SC 4415
and Sharda Devi’s case, [2002] 2 SCR 404 a
Letters Patent is the charter of the High
Court. As held in Shah Babulal
Khimji’s case, [1982] 1 SCR 187 a Letters
Patent is the specific law under which a High
Court derives its powers. It is not any
subordinate piece of legislation. As set out in
aforementioned two cases a Letters Patent
cannot be excluded by implication. Further it
is settled law that between a special law and
a general law the special law will always
prevail. A Letters Patent is a special law for
the concerned High Court. Civil Procedure
Code is a general law applicable to all
courts. It is well settled law, that in the event
of a conflict between a special law and a
general law, the special law must always
prevail. We see no conflict between Letters
Patent and Section 104 but if there was any
conflict between a Letters Patent and the
Civil Procedure Code then the provisions of
Letters Patent would always prevail unless
there was a specific exclusion. This is alsoMohite 23/58
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lar1-00clear from Section 4 Civil Procedure Code
which provides that nothing in the Code
shall limit or affect any special law. As set
out in Section 4 C.P.C. only a specific
provision to the contrary can exclude the
special law. The specific provision would be
a provision like Section 100A.”
E) Bhag Singh and others v. Union Territory of Chandigarh, AIR
1985 SC 1576. In this authority, the Apex Court held that if
reference court comes to the conclusion that claimants are
entitled enhanced compensation over and above claimed by
claimants in reference application, the court can award the same
directing the claimant to pay the court fees on additional claim.
Paragraph 3 reads thus:
“3. We are of the view that when the learned Single Judge
and the Division Bench took the view that the claimants
whose land was acquired by the State of Punjab under the
notifications issued under Sections 4 and 6 of the Act, were
entitled to enhanced compensation and the case of the
appellants stood on the same footing, the appellants should
have been given an opportunity of paying up the deficit court
fee so that, like other claimants, they could also get enhanced
compensation at the same rate as the others. The learned
Single Judge and the Division Bench should not have, in our
opinion, adopted a technical approach and denied the benefit
of enhanced compensation to the appellants merely because
they had not initially paid the proper amount of court fee. It
must be remembered that this was not a dispute between two
private citizens where it would be quite just and legitimate to
confine the claimant to the claim made by him and not to
award him any higher amount than that claimed though even
in such a case there may be situations where an amount
higher than that claimed can be awarded to the claimant as
for instance where an amount is claimed as due at the foot of
an account. Here was a claim made by the appellants againstMohite 24/58
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lar1-00the State Government for compensation for acquisition of
their land and under the law, the State was bound to pay to
the appellants compensation on the basis of the market value
of the land acquired and if according to the judgments of the
learned single Judge and the Division Bench, the market
value of the land acquired was higher than that awarded by
the Land Acquisition Collector or the Additional District
Judge, there is no reason why the appellants should have
been denied the benefit of payment of the market value so
determined. To deny this benefit to the appellants would
tantamount to permitting the State Government to acquire
the land of the appellants on payment of less than the true
market value. There may be cases where, as for instance,
under’ agrarian reform legislation, the holder of land may,
legitimately, as a matter of social justice with a view to
eliminating concentration of land in the hands of a few and
bringing about its equitable distribution, be deprived of land
which is not being personally cultivated by him or which is in
excess of the ceiling area with payment of little compensation
or no compensation at all, but where land is acquired under
the Land Acquisition Act, 1894, it would not be fair and just
to deprive the holder of his land without payment of the true
market value when the law, in so many terms, declares that
he shall be paid such market value. The State Government
must do what is fair and just to the citizen and should not, as
far as possible, except in cases where tax or revenue is
received or recovered without protest or where the State
Government would otherwise be irretrievably be prejudiced,
take up a technical plea to defeat the legitimate and just
claim of the citizen We are, therefore, of the view that, in the
present case, the Division Bench as well as the learned single
Judge should have allowed the appellants to pay up the
deficit court fee and awarded to them compensation at the
higher rate or rates determined by them.”
F) Bhimasha vs. Special Land Acquisition Officer and Another,
(2008) 10 SCC 797. In this authority the Apex Court held that
on the basis of material on record, the court can award more
compensation over and above claimed by the claimant.
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G) In Re: Raja Jagaveera Rama Muthu Kumara Venkateswara
Ettappa Naicker Ayyan Avergal, Zamindar of Ettayapuram, AIR
1943 Mad 337. In this authority Madras High Court held that in
application under section 18 of the said Act, it is not necessary to
plead in detail each and every point for claiming additional
compensation on the basis of earlier judgment in the matter of
Revenue Divisional Officer v. Sri Rajah Vyricheria Gajapathiraju
Bahadur Garu, ILR 1938 Madras 479. The said portion of that
judgment reads thus:
“although Section 18 (2) of the Land Acquisition
Act requires that the application for a reference to a
Court shall state the grounds on which the
objection is taken, there is a sufficient compliance
with its provisions if the application states on which
of the four heads of objection detailed in the Sub-
section (1) the applicant proposed to rely. When an
objection to the amount of compensation has been
taken, the Court has jurisdiction to work out the
amount of compensation in a manner and on a
basis different from that which has been adopted
either in the statement of claim before the Land
Acquisition Officer or in the objections against the
award.
It is clear from these two decisions that not only the
amended statement which the petitioner wished to file but
also the statements which he filed before the Collector and
the Subordinate Judge immediately after claiming a
reference under Section 18 were all superfluous. All that he
had to do was to state in his application that he objected to
the amount of compensation awarded and it was not
incumbent upon him to state whether he claimed
compensation at the rate of twelve annas as originally
demanded by him or whether he limited it to some lesser
amount. The maximum and minimum which can be
awarded by the Subordinate Judge are clearly indicated in
Section 25 (1) of the Act, and, therefore, without any
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particulars of claim by him, it is open to the Subordinate
Judge to award him compensation at the rate of twelve
annas per square foot as originally claimed by him under
Section 9 (2) of the Act or to dismiss his claim entirely. The
Subordinate Judge is not limited in framing his award to
any figures mentioned by the petitioner in his application
under Section 18 of the Act. In view of this the amendment
is clearly unnecessary and this petition is ordered to be
dismissed.”
27 The learned Senior Counsel for the claimants submits that the
Land Acquisition Officer failed to consider the locality in which the
acquired land was situated at the time of fixing the market value. He
submits that the Land Acquisition Officer ought to have valued the
acquired land @ Rs.20,020/- per sq.mtr. though the claimants
restricted their claim in the present reference @ Rs.9545 per sq.mtr.
He submits that on the basis of the evidence of valuer, the valuation
report and sale instance no.1 which was duly proved, claimants are
entitled compensation in respect of acquired land @ Rs.9545 per
sq.mtr. (Rs.886 per sq.ft.)
28 On the other hand the learned counsel for the acquiring body
vehemently opposed the present Land Acquisition application. He
submits that the claimants failed to plead their case at the time of filing
application under section 18 of the said Act for making reference to
this court. Therefore, on the ground of insufficiency of pleading,
claimants are not entitled to any enhanced compensation.
29 The learned counsel for the acquiring body submits that
claimants do not have title to the acquired land and as such it would be
unjust unfair and unequitable to permit the claimants to ask for
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enhanced compensation for the acquired land.
30 The learned counsel for the acquiring body submits that the Land
Acquisition Officer rightly observed in the award that acquired land do
not have direct access to the main road. He further submits that though
the claimants examined the valuer Mr.Maniar and placed on record
valuation report, the claimants failed to prove their case for additional
compensation in respect of acquired land. He submits that even the
report prepared by valuer Mr.Maniar was not according to law and/or
practice.
31 The learned Counsel for the acquiring body submits that the
acquired land does not abut the road. Therefore, at the time of
determining the market value, same was considered by the Land
Acquisition Officer and awarded compensation @ Rs.1678 per sq.mtr.
He submits that actually the said valuation is also on higher side.
32 The learned Counsel for the acquiring body submits that though
the claimant relied on valuation report of valuer Mr.Maniar, same
cannot be considered for fixing the market value of the acquired land
because the same was not prepared considering the factual situation of
the acquired land. He submits that the distance of acquired land from
Jogeshwari Station is near about 1.4 km and inspite of that valuer
stated that same is near to Jogeshwari Railway Station. The valuer
Mr.Maniar has not properly made the allowance for the distance
between the acquired land and sale instance. He submits that sale
instance no.1 relied by the claimants as well as the valuer dated
20.3.1995 was near to Jogeshwari Railway Station and at a distance of
1.4 kms. from the acquired land. Therefore, the said sale instance
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cannot be considered for determining the market value of the acquired
land. Even the valuer at the time of determining the market value of
the acquired land failed to give proper deduction. He objects the
valuer’s valuation and report on following points:
a) Radial Distance of 1.4 km in Mumbai makes an enormous
difference.
b) 15% rise per year unjustified c) Mr.Maniar's valuation report is biased in favour of claimants d) Mr.Maniar's allowance for acquired land's "undulated" situation was inaccurate. e) Mr.Maniar failed to account for the fact that the acquired land was agricultural land. f) Mr.Maniar has relied only on one sale instance. g) The acquired land was potentially surplus vacant land. h) An adverse inference must be drawn against the claimant for
failing to produce the full certified copy of Indenture dated 24 th June,
1996.
33 The learned Counsel for the acquiring body elaborated his
argument on insufficiency of pleading as under. He submits that
claimants’ entire case in their pleading in Reference u/s.18 of the said
Act proceeds on the basis that Land Acquisition Officer ought to have
awarded the compensation on the basis of Ready Reckoner Rate @
Rs.1860 per sq.ft. i.e. Rs.20,020 per sq.mtr. He submits that at the
time of filing letter dated 22.9.1998 with the Special Land Acquisition
Officer for determining the market value of acquired land prior to the
award, the claimants sought compensation @ Rs.1860 per sq.ft. on the
basis of ready reckoner rate. The claimants did not produce sale
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instance or comparable sale before the Special Land Acquisition Officer.
He submits that the claimants in his application dated 31.12.1999
addressed to the Collector under section 18 of the said Act and sought
compensation on the basis of Ready Reckoner Rate. This application is
required to be treated as a plaint at the time of determining market
value of the acquired land. He submits that bare reading of the
application under section 18 of the said Act shows that the claimants
have not based its case on comparable sale instance and or any other
material. Hence, acquiring body is not precluded from arguing the case
which is inconsistent with or not supported by its pleading. In support
of his submission the learned Counsel for the acquiring body relies on
the provisions of Order VII Rule 14 of the Civil Procedure Code, 1908.
He submits that on this point itself there is no substance in the present
case and same be dismissed with costs.
34 The learned Counsel for the acquiring body submits that the
claimants do not have title to the acquired land and as such it would be
unjust and inequitable to permit the claimants to claim enhanced
compensation for acquired land. He submits that the claimants relied
on 7/12 extract in support of their contention, as the landlord of the
acquired land. He submits that it is well established that the revenue
record does not establish the title. He submits that this proposition laid
down by the Supreme Court in the matter of Parag Construction vs.
State of Maharashtra, (2008) 16 SCC 198. Paragraph 37 reads thus:
“37. Shri Divan also, very heavily relied on the property
cards maintained by the City Survey Office, which were
amended by a mutation entry dt. 23.1.1986, which showed
the name of the petitioners/appellants as the holders in place
of the Velkars. We have no difficulty in accepting that theMohite 30/58
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lar1-00property cards were indeed amended, but that by itself, will
not give any benefit to the petitioners/appellants, for the
simple reason that a mere amendment in the property cards
of City Survey Office cannot and could not create a title in
favour of the petitioners/appellants. The entries may have a
presumptive value, however, that would not be sufficient. We
have already shown that the Velkar Family had lost the
possession way back in 1980 itself and the concerned plot
was included in the Draft Scheme. Under the circumstances,
there was no question of the ownership and/or possession
being transferred to the petitioners/appellants by the court
receiver. If that is so, the amended property cards of City
Survey Office loose all the significance. It is needless to
mention that this contradiction stands explained by the
affidavits of city survey department and the Corporation and
the officers of Corporation.”
35 The learned Counsel for the acquiring body further submits that
similar view taken by the Apex Court in the matter of Narasamma and
Others vs. State of Karnataka and others, (2009) 5 SCC 591. Paragraph
27 reads thus:
“In view of our discussions made hereinabove, we do not find
any support to rely on the decision of this Court in the case
of Jattu Ram v. Hakam Singh and Ors. AIR 1994 SC 1653 that
since the appellants had failed to prove their status of
tenancy in respect of the land in dispute, they were not
entitled to any relief. It is true that the entries in the revenue
record cannot create any title in respect of the land in
dispute, but it certainly reflects as to who was in possession
of the land in dispute on the date the name of that person
had been entered in the revenue record. That apart, in that
decision of this Court, on which reliance was placed by the
learned Counsel for the respondent, it was admitted that the
landlord did not receive any rent from the person in
possession. Relying on this admission of the person from
whom no rent was received, it was found that the plea of
tenancy was a false one.”
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36 Hence, Special Land Acquisition Officer was wrong in admitting
the claimants as owner of the acquired land simply on the basis of the
entries in land revenue record.
37 The learned Counsel for the acquiring body submits that even
during the course of the cross-examination, claimants witness
Mr.Nanwani on being asked question no.9 about Memorandum of
Understanding between the claimants and M/s.Habitat, Mr.Nanwani
answered that these were all internal arrangements between Habitat
and the Claimant. He submits that this itself shows that the claimants
are not owners of the acquired land. He submits that in other words it
is admitted that the Memorandum of Understanding was internal
family arrangement / settlement which does not require registration
under the provisions of the Registration Act. He submits that the Apex
Court in the matter of Kale and Others vs. Deputy Director of
Consolidation and Others, (1976) 3 SCC 119 held that family settlement
does not require registration nor does not affect the ownership of the
immovable property. He relies on paragraph 9 and 10 of this authority
which reads thus:
“9. Before dealing with the respective contentions put
forward by the parties, we would like to discuss in general
the effect and value of family arrangements entered into
between the parties with a view to resolving disputes once for
all. By virtue of a family settlement or arrangement members
of a family descending from a common ancestor or a near
relation seek to sink their differences and disputes, settle and
resolve their conflicting claims or disputed titles once for all
in Order to buy peace or mind and bring about complete
harmony and good will (sic) the family. The family
arrangements are governed by a special equity peculiar to
themselves and would be enforced if honestly made. In thisMohite 32/58
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lar1-00connection, Kerr in his valuable treatise “Kerr on Fraud” at p.
364 makes the following pertinent observations regarding the
nature of the family arrangement which may be extracted
thus:
The principles which apply to the case of ordinary
compromise between strangers, do not equally
apply to the case of compromises in the nature of
family arrangements. Family arrangements are
governed by a special equity peculiar to
themselves, and will be enforced if honestly
made, although they have not been meant as a
compromise, but have proceeded from an error of
all parties, originating in mistake or ignorance of
fact as to what their rights actually are, or of the
points on which their rights actually depend.
The object of the arrangement is to protect the family from
long drawn litigation or perpetual strifes which mar the
unity and solidarity of the family and create hatred and bad
blood between the various members of the family. Today
when we are striving to build up an egalitarian society and
are trying for a complete reconstruction of the society, to
maintain and uphold the unity and homogeneity of the
family which ultimately results in the unification of the
society and, therefore, of the entire country, is the prime
need of the hour. A family arrangement by which the
property is equitably divided between the various
contenders so as to achieve an equal distribution of wealth
instead of concentrating the same in the hands of a few is
undoubtedly a milestone in the administration of social
justice. That is why the term “family” has to be understood
in a wider sense so as to include within its fold not only
close relations or legal heirs But even those persons who
may have some ” sort of antecedent title, a semblance of a
claim or even if they have a spes successionis so that future
disputes are sealed for ever and the family instead of
fighting claims inter se and wasting time, money and
energy on such fruitless or futile litigation is able to devote
its attention to more constructive work in the larger
interest of the country. The Courts have, therefore, leaned
in favour of upholding a family arrangement instead of
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disturbing the same on technical or trivial grounds. Where
the Courts find that the family arrangement suffers from a
legal lacuna or a formal defect the Rule of estoppel is
pressed into service and is applied to shut out plea of the
person who being a party to family arrangement seeks to
unsettle a settled dispute and claims to revoke the family
arrangement under which he has himself enjoyed some
material benefits. The law in England on this point is
almost the same. In Halsbury’s Laws of England, Vol. 17,
Third Edition, at pp. 215-216, the following apt
observations regarding the essentials of the family
settlement and the principles governing the existence of the
same are made:
A family arrangement is an agreement between
members of the same family, intended to be
generally and reasonably for the benefit of the
family either by compromising doubtful or
disputed rights or by preserving the family
property or the peace and security of the family
by avoiding litigation or by saving its honour.
The agreement may be implied from a long
course of dealing, but it is more usual to
embody or to effectuate the agreement in a
deed to which the term “family arrangement” is
applied.
Family arrangements are governed by principles
which are not applicable to dealings between
strangers. The Court, when deciding the rights
of parties under family arrangements or claims
to upset such arrangements, considers what in
the broadest view of the matter is most for the
interest of families, and has regard to
considerations which, in dealing with
transactions between persons not members of
the same family, would not be taken into
account. Matters which would be fatal to the
validity of similar transactions between
strangers are not objections to the binding
effect of family arrangements.”
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“10. In other words to put the binding effect and the
essentials of a family settlement in a concretized form, the
matter may be educed into the form of the following
propositions:
(1) The family settlement must be a bona fide
one so as to resolve family disputes and rival
claims by a fair and equitable division or
allotment of properties between the various
members of the family;
(2) The said settlement must be voluntary and
should not be induced by fraud, coercion or
undue influence;
(3) The family arrangements may be even oral
in which case no registration is necessary;
(4) It is well settled that registration would be
necessary only if the terms of the family
arrangement are reduced into writing. Here
also, a distinction should be made between a
document containing the terms and recitals of a
family arrangement made under the document
and a mere memorandum prepared after the
family arrangement had already been made
either for the purpose of the record or for
information of the Court for making necessary
mutation. In such a case the memorandum
itself does not create or extinguish any rights in
Immovable properties and therefore does not
fall within the mischief of Section 17(2) (sic)
(Section 17(1)(b)?) of the Registration Act and
is, therefore, not compulsorily registrable;
(5) The members who may be parties to the
family arrangement must have some
antecedent title, claim or interest even a
possible claim in the property which is
acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has
no title but under the arrangement the other
party relinquishes all its claims or titles in
favour of such a person and acknowledges him
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to be the sole owner, then the antecedent title
must be assumed and the family arrangement
will be upheld, and the Courts will find no
difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or
possible, which may not involve legal claims
are settled by a bona fide family arrangement
which is fair and equitable the family
arrangement is final and binding on the parties
to the settlement.”
38 On the basis of these submissions and the law, the learned
Counsel for the acquiring body submits that the claimants are not
owner of the acquired land and therefore, they are not entitled to any
relief in the present proceeding.
39 These points have been raised by the counsel for the acquiring
body in their written submission dated 6.2.2017. In support of his
contention, he relied on following authorities:
a) Sudhir Engineering Company vs. Nitco Roadways Ltd., 1995 (34)
DRJ on the point of admissibility of documents.
b) H. Siddiqui (Dead) by lrs. vs. A. Ramalingam, (2011) 4 SCC 240
on the point of admissibility of indenture 24.6.1996 produced by
claimants.
40 On the basis of these submissions and the authorities the learned
Counsel for the acquiring body submit that the claimants failed to
make out any case for additional compensation in respect of acquired
land and same is required to be dismissed with costs.
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41 The learned A.G.P. for the State submits that Special Land
Acquisition Officer after considering the evidence on record and sale
instance determined the fair market value @ 1678 per sq.mtr. on the
date of issuing notification under section 126(4) of the MRTP Act and
hence, there is no question of granting any additional compensation to
the claimants in the present reference and same is required to be
dismissed with costs.
42 In the present proceeding, the claimants filed affidavit of
evidence of Haresh K. Nanwani along with compilation of documents.
They also filed affidavit of evidence of Atul Madan Gulati, Architect and
affidavit in evidence of Harshad Maniar, Surveyor and valuer who
submitted valuation report dated 25.2.2009. The claimants relied on
following documents and placed the same on record :
I Exhibit- C-1
Certified true copy of Indenture of conveyance dated 13.6.1931
executed between Faiz Budruddin Tyabji Ors. And Tyabji Estate Ltd.
II Exhibit- C-2
Photocopy of order dated 14.12.1999 passed by Shri S.S.Zende,
Additional Collector and Competent Authority (ULC)
III Exhibit- C-3
Plan prepared by Architet Mr.Atul Gulati
IV Exhibit- C-4
Valuation report dated 25.2.2009 prepared by Harshad Maniar
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V Exhibit- C-5
Certified copy of Indenture 24.6.1996 executed between
Bhagwan Dayaram Ramchadani and Sunder Dayaram Ramchandani
and Ors. And certified by Sub-Registrar Bombay under No.BBJ/2291 of
1996.
VI Exhibit- C-6
Certifiied copy of Agreement dated 13.5.1999 executed between
M/s.Ascent Associates and Jehangir N.Sethna and certified by Sub-
Registrar for Agreement of Sale of Flat under No.P/BDC/744/99.
VII Exhibit- C-7
Certified copy of Agreement dated 23.10.1999 executed between
M/s.Ascent Associates and Mohd.Hanif Ibrahim Shaikh and certified by
Sub-Registrar for agreement to sale Flat under No. BPDR-1/1823 of
1999
VIII Exhibit- C-8
Certified copy of Agreement dated 4.5.2001 executed between
M/s.Ascent associates and Vilas Digamber Rao and certified by Sub-
Registrar for Agreement to Sale of Flat no.BPDR-1/1196 of 2001.
IX Exhibit- C-9
Development Plan Sheet W/39
X Exhibit- C-10
Plan showing land under acquisition and sale instances.
XI Exhibit- C-11
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Xerox copy of Memorandum of Understanding dated 17.7.1991
executed between M/s.Gupta Enterprises and M/s.Acme Investments
and Others. Same was marked by Commissioner subject to objection.
XII Exhibit- C-12
Xerox copy of Indenture of Partnership dt.31.3.1993 executed
between M/s.Acme Favourites and Acme Management to M/s.Acme
Associates Same was marked by Commissioner subject to objection)
XIII Exhibit -R-1
Copy of Deed of Partnership dated 27.6.1986 executed between
Tayabji Estate Pvt.Ltd. and Sharad Mofatraj Munot Ors. for
Development of land.
XIV Exhibit- R-2
Notes prepared by Mr.Harshad Maniar at the time of Inspection
of land on 14.4.2007.
43 It is to be noted that neither the acquiring body nor the Special
Land Acquisition Officer filed any affidavit of evidence nor entered into
witness box to prove their case. Though the Land Acquisition Officer
has placed on record copy of award dated 26.10.1999, same was not
proved by examining any officer from their office. Therefore, on the
basis of documents produced by claimant and evidence of three
witnesses market value of land in question is required to be decided on
the date of issuing notification under section 126(4)of the MRTP Act
and section 6 of the said Act.
44 Before considering the evidence on record, the law laid down by
the Apex Court for determining the market value under the said Act is
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required to be considered.
45 The Apex Court in the matter of Chimanlal Hargovinddas vs.
Special Land Acquisition Officer, Poona and Another (1988) 3 SCC 751
held that the Reference is not an Appeal. Material relied on by the
acquisition officer in his award can be relied upon unless same is
produced and proved. The market value of land under acquisition has
to be determined as on the crucial date of publication of the
notification. If the agricultural land is acquired, how to determine the
market value of the same on the basis of sale deed of the plots of land
situated in developed area i.e. by providing deduction towards
development, area, locality and demand in that area. Paragraph 4 and
7 of the said authority reads thus:
“4. The following factors must be etched on the mental
screen:
(1) A reference under Section 18 of the Land
Acquisition Act is not an appeal against the
award and the Court cannot take into account
the material relied upon by the Land
Acquisition Officer in his Award unless the
same material is produced and proved before
the Court.
(2) So also the Award of the Land Acquisition
Officer is not to be treated as a judgment of the
trial Court open or exposed to challenge before
the Court hearing the Reference. It is merely an
offer made by the Land Acquisition Officer and
the material utilised by him for making his
valuation cannot be utilised by the Court unless
produced and proved before it. It is not the
function of the Court to suit in appeal against
the Award, approve or disapprove its reasoning,
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or correct its error or affirm, modify or reverse
the conclusion reached by the Land Acquisition
Officer, as if it were an appellate Court.
(3) The Court has to treat the reference as an
original proceeding before it and determine the
market value afresh on the basis of the material
produced before it.
(4) The claimant is in the position of a plaintiff
who has to show that the price offered for his
land in the award is inadequate on the basis of
the materials produced in the Court. Of course
the materials placed and proved by the other
side can also be taken into account for this
purpose.
(5) The market value of land under acquisition
has to be determined as on the crucial date of
publication of the notification under Section 4
of the Land Acquisition Act(dates of
Notifications under Sections 6 and 9 are
irrelevant).
(6) The determination has to be made standing
on the date line of valuation (date of
publication of notification under Section 4) as if
the valuer is a hypothetical purchaser willing to
purchase land from the open market and is
prepared to pay a reasonable price as on that
day. It has also to be assumed that the vendor is
willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the
Court has to correlate the market value
reflected in the most comparable instance
which provides the index of market value.
(8) Only genuine instances have to be taken
into account. (Some times instances are rigged
up in anticipation of Acquisition of land).
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(9) Even post notification instances can be
taken into account (1) if they are very
proximate, (2) genuine and (3) the acquisition
itself has not motivated the purchaser to pay a
higher price on account of the resultant
improvement in development prospects.
(10) The most comparable instances out of the
genuine instances have to be identified on the
following considerations:
(i) proximity from time
angle,
(ii) proximity from
situation angle.
(11) Having identified the instances which
provide the index of market value the price
reflected therein may be taken as the norm and
the market value of the land under acquisition
may be deduced by making suitable
adjustments for the plus and minus factors vis-
a-vis land under acquisition by placing the two
in juxtaposition.
(12) A balance-sheet of plus and minus factors
may be drawn for this purpose and the relevant
factors may be evaluated in terms of price
variation as a prudent purchaser would do.
(13) The market value of the land under
acquisition has thereafter to be deduced by
loading the price reflected in the instance taken
as norm for plus factors and unloading it for
minus factors.
(14) The exercise indicated in Clauses (11) to
(13) has to be undertaken in a common sense
manner as a prudent man of the world of
business would do. We may illustrate some
such illustrative (not exhaustive) factors:
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Plus factors Minus factors
1. Smallness of size Largeness of area
2. Proximity to a road Situation in the interior at a distance from
the road
3. Frontage on a road Narrow strip of land with very small
frontage compared to depth
4. Nearness to Lower level requiring the depressed portion
developed area to be filled up
5. Regular shape Remoteness from developed locality
6. Level vis-a-vis land Some special disadvantageous factor which
under acquisition would deter a purchaser
7. Special value for an
owner of an
adjoining property to
whom it may have
some very special
advantage
(15) The evaluation of these factors of course
depends on the facts of each case. There cannot
be any hard and fast or rigid rule. Common
sense is the best and most reliable guide. For
instance, take the factor regarding the size. A
building plot of land say 500 to 1000 sq. yds
cannot be compared with a large tract or block
of land of say 1000 sq. yds or more. Firstly
while a smaller plot is within the reach of many,
a large block of land will have to be developed
by preparing a lay out, carving out roads,
leaving open space, plotting out smaller plots,
waiting for purchasers (meanwhile the invested
money will be blocked up) and the hazards of
an entrepreneur. The factor can be discounted
by making a deduction by way of an allowance
at an appropriate rate ranging approx. between
20% to 50% to account for land required to be
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set apart for carving out lands and plotting out
small plots. The discounting will to some extent
also depend on whether it is a rural area or
urban area, whether building activity is picking
up, and whether waiting period during which
the capital of the entrepreneur would be looked
up, will be longer or shorter and the attendant
hazards.
(16) Every case must be dealt with on its own
facts pattern bearing in mind all these factors
as a prudent purchaser of land in which
position the Judge must place himself.
(17) These are general guidelines to be applied
with understanding informed with common
sense.”
“7. The appellant’s land, which was agricultural land albeit
with future potential for development as building site, was
situated far far in the interior in the midst of blocks of
undeveloped land. The formula for evaluation involved
taking of three steps:
(1) The High Court formed the opinion that
allowance for largeness of block deserved to be
made at 25% instead of 20% as done by the
Trial Court.
(2) The High Court formed the opinion that the
development would take about 12 years to
reach the appellant’s land. On these premises
the High Court formed the opinion that the
land of the appellant could be valued at Rs.
7000 per acre as a block.
(3) The High Court directed that the market
value so ascertained should be further
depressed to account for the factor as regards
the waiting period of 12 years which was the
estimated period for development reaching the
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appellant’s land. The ‘present value’ of the land
was accordingly deduced by depressing the
valuation of Rs. 7000 per acre by reference to
Miram’s Tables on the basis of discount rate of
5% per annum to account for the factor that
approximately 12 years would elapse before
development could reach the appellant’s land.
That is how the total compensation payable to the appellant
for the block of land admeasuring 13 acres 7 gunthas was
determined at Rs. 63,846 which works out at approximately
Rs. 4,845.87 per acre.”
46 The Apex Court in the matter of Land Acquisition Officer,
Kammarapally Village, Nizamabad District, A.P., (2003) 12 SCC 334 laid
down the principle for determining the market value of agricultural
land compare to rate of sale instance in which the smaller plots were
sold. How much deduction be made for fixing market value. Paragraph
6, 7 and 12 reads thus:
“6. Where large area is the subject-matter of acquisition, rate
at which small plots are sold cannot be said to be a safe
criteria. Reference in this context may be made to few
decisions of this Court in Collector of Lakhimpur v. Bhuban
Chandra Dutta AIR 1971 SC 2015; Prithvi Raj Taneja (dead)
by L. Rs. v. State of Madhya Pradesh and Anr. AIR 1977 SC
1560 and Smt. Kausalya Devi Bogra and Ors. etc. v. Land
Acquisition Officer, Aurangabad and Anr. AIR 1984 SC 892.”
“7. It cannot, however, be laid down as an absolute
proposition that the rates fixed for the small plots cannot be
the basis for fixation of the rate. For example, where there
is no other material, it may in appropriate cases be open to
the adjudicating court to make comparison of the prices
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paid for small plots of land. However, in such cases,
necessary deductions/adjustments have to be made while
determining the prices.”
“12. In K. S. Shivadevamma and Ors. v. Assistant
Commissioner and Land Acquisition Officer and Anr. 1996 (2)
SCC 62, this Court held as follows :
“10. It is then contended that 53% is not
automatic but depends upon the nature of the
development and the stage of development. We
are inclined to agree with the learned Counsel
that the extent of deduction depends upon
development need in each case. Under the
Building Rules 53% of land is required to be left
out. This Court has laid as a general rule that for
laying the roads and other amenities 33-1/3% is
required to be deducted. Where the development
has already taken place, appropriate deduction
needs to be made. In this case, we do not find
any development had taken place as on that date.
When we are determining compensation under
Section 23(1), as on the date of notification
under Section 4(1), we have to consider the
situation of the land development, if already
made, and other relevant facts as on that date.
No doubt, the land possessed potential value, but
no development had taken place as on the date.
In view of the obligation on the part of the owner
to hand over the land to the City Improvement
Trust for roads and for other amenities and his
requirement to expend money for laying the
roads, water supply mains, electricity, etc., the
deduction of 53% and further deduction towards
development charges @ 33-1/3%, ordered by the
High Court, was not illegal.”
47 The Apex Court in the matter of Special Land Acquisition Officer
and Another v. M.K.Rafiq Saheb, (2011) 7 SCC 714 laid down the
principle for determination of market value, Acquisition of large tract of
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land on the basis of sale instance pertaining to small plots and how
much deduction be made for deciding the market value. In this case
large tract of land i.e. 34 gunthas were acquired and the market value
was decided on the basis of sale deed of small plot admeasuring 30′ x
40′ only. The Apex Court given 60% deduction and decided the market
value of acquired land. Paragraph 19 and 24 reads thus:
“19. The judgment of the High Court is well reasoned and
well considered. We find no perversity in its reasoning. The
only issue is that Ex. P-5, which was relied upon by the High
Court, relates to a small piece of land, whereas the
acquisition is of a larger piece of land. It is not an absolute
rule that when the acquired land is a large tract of land, sale
instances relating to smaller pieces of land cannot be
considered. There are certain circumstances when sale deeds
of small pieces of land can be used to determine the value of
acquired land which is comparatively large in area, as can be
seen from the judicial pronouncements mentioned
hereunder.”
“24. It may also be noticed that in the normal course of
events, it is hardly possible for a claimant to produce sale
instances of large tracks of land. The sale of land containing
large tracks are generally very far and few. Normally, the sale
instances would relate to small pieces of land. This limitation
of sale transaction cannot operate to the disadvantage of the
claimants. Thus, the Court should look into sale instances of
smaller pieces of land while applying reasonable element of
deduction.”
48 The Apex Court in the matter of State of Maharashtra v. Babu
Govind Gavate etc., AIR 1996 SCC 904 held that State has no right to
deduct 1/3rd of market value of land towards interest of the
Government under section 43 of the Bombay Tenancy 1948. Paragraph
4 reads thus:
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“4. The sanction required under Section 43 is only when
there is a bilateral valid agreement between the owner and a
third party purchaser or a lessee or a mortgagee etc. as
envisaged under Section 43(1). But when the State exercises
its power of eminent domain and compulsorily acquires the
land, the question of sanction under Section 43 does not
arise. Section 23(2) of the Act off sets the unwillingness on
the part of the owner paying time scheme. The question,
therefore, is whether the Government under the aforestated
notification is entitled to deduct 1/3rd from the
compensation determined under Section 23(1) of the Act. We
have seen the notification and we are unable to accept the
validity of the said notification. When the Collector exercises
the power to grant sanction under Section 43(1), he does it
as a statutory authority to protect right, title and interest of
the erstwhile tenant who subsequently became the owner to
see that he remains to be the owner and continues to be in
possession and enjoyment of the same. But that condition to
grant sanction is not hedged with any right to the
Government to deduct 1/3 when it exercises its power of
eminent domain for a public purpose. The owner under
Section 23(1) is entitled to the full compensation of the
market value prevailing as on the date of publication of the
notification under Section 4(1). Therefore, the circular relied
on is clearly ultra vires of the power of Section 43 or any
other power.”
49 It is to be noted that in the case in hand, the counsel for
acquiring body raised objection that the claimants are not owner of the
suit property. They have no clear title and they failed to prove the
ownership of the acquired land and hence, at the time of determining
the market value those factors are required to be considered. It is to be
noted that the question of title to the land acquired is not relevant in a
reference application under section 18 of the said Act. Only the
question of amount of compensation is relevant. It does not involve
determination of the ownership right.
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50 Section 21 of the said Act expressly restricts the inquiry by the
court to a consideration of the interests of the person affected by the
acquisition. Any subject-matter foreign to the matter before the
Collector cannot be raised by any party or third person.
51 The expression “all persons interested in the objection” in section
20(b) of the said Act does not include the local authority or company
on whose behalf acquisition is made by the State. It includes only the
persons as defined in section 3(b). Under section 21 of the said Act,
the scope of the inquiry in every such proceeding shall be restricted to a
consideration of the interests of the persons affected by the objection.
52 Section 50(2) of the said Act lays down that in any proceeding
held before a Collector or Court in such cases the local authority or
company concerned may appear and adduce evidence for the purpose
of determining the amount of compensation, provided that no such
local authority or Company shall be entitled to demand reference under
section 18.
53 Thus, on perusal of sections 18, 20, 21 and 50, it would be clear
that the company / acquiring body is not entitled to demand reference
under section 18. Under section 21 of the said Act, the Company can
adduce evidence for determination of market value which is going to
affect their rights. This is why opportunity is given to company under
section 50(2) of the said Act for appearance and adducing evidence.
54 Considering the above mentioned authorities and the provisions
of the said Act, the market value of the acquired land in the case in
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hand is required to be determined.
55 In the present proceeding, Land Acquisition Officer in its award
specifically stated under the caption “Situation and Description” that
the land under acquisition land was situated where many housing
colonies were grown up near about area and also developed.
Therefore, though the property card shows that the acquired land on
the date of issuing notification under section 126(4) of the MRTP Act
was agricultural land, but for the purpose of determining the market
value other factors just like near about development, utility of acquired
land, expenses requires to be considered.
56 The claimant filed affidavit of evidence of Mr.Nanwani. The said
witness Mr.Nanwani specifically stated in his affidavit of evidence in
paragraph 10 that the acquired land had proper access to the main
road. Paragraph 10 of his evidence reads thus:
“10. The holding which remained with us after the aforesaid
acquisitions had a direct access from Jogeshwari-Vikhroli Link
Road. The said road was in existence several years prior to
10th April, 1997. Our holding as on 10th April, 1997 had a
direct frontage of 83 mtrs. On Jogeshwari-Vikhroli Link Road.
There was another road passing through our holding being
13.40 mtrs. wide D.P.Road. This D.P.Road was in existence
prior to the present acquisition that is 10 th April 1997. The
portions of the D.P.Road falling in our holding are shown
hatches on the said plan.”
57 The said witness Mr.Nanwani further stated that land under
acquisition was about 7-8 minutes walk from Western Express Highway
and 10-12 minutes walk from Jogeshwari Railway Station. Paragraph
16 of his affidavit in evidence reads thus:
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“16. The land under acquisition is about 7 to 8 minutes
walk from the Western Express Highway and 10 to 12
minutes walk from the Jogeshwari Railway Station.
Considerable development had started in the surrounding
area about 1982-83. The surrounding area was developed on
the date of acquisition. Colonies known as Raheja Nagar,
Poonam Nagar, Air India Colony etc. had already come up.
These were at a distance about 200-300 metres from the
acquired land. A colony known as Greenfields
(R.N.A.Developers) had already come up around 1984-85.
This colony was adjoining the Claimants’ land. A colony was
adjoining the Claimants’ land and was about 80 metres from
the acquired land. The amusement park known as “Fantasy
Land” was very close to the land under acquisition. Fantasy
Land had been constructed in or around 26.9.1992.”
58 Though acquiring body cross-examined this witness at length,
nothing came out from the same. Bare reading of the evidence of
Mr.Nanwani shows that though the land was shown as agricultural land
in property card, same was situated in developed area surrounded by
several constructions, near to DP road, Jogeshwari Vikhroli Link Road
and Jogeshwari Railway Station. His evidence is required to be
considered for determining the market value on the basis of developed
land by deducting some amount towards development charges and
other expenses.
59 The claimant also filed affidavit of evidence of Mr.Atul Madan
Gulati the Architect who prepared map showing the location of the
land. He specifically stated in his deposition that the said map was
prepared by him from the extract of the sanctioned developed plan
which came into force on 31.1.1994.
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60 The claimants also filed affidavit of evidence of Harshad S.
Maniar. He is working as Civil Engineer, Surveyor and Registered Estate
Valuer. His qualification is B.E. (Civil), M.I.E., F.I.V., F.I.S. In his
evidence, he stated that he visited the suit property and prepared
valuation report dated 25.2.2009. At the time of preparing valuation
report, he considered the following documents for ascertaining the
market value of the land in acquisition.
“i. Annexure ‘A’ – Plan prepared by Shri Atul Gulati,
Architectii. Annexure ‘B’ – Certified copy, certified by Sub-Registrar
Bombay under No.BBJ/2291 of 1996.
iii. Annexure ‘C’ – Photocopy of Agreement between
M/s.Gupta Enterprises and M/s.Acme Investments and others
alongwith the photocopy of the Order passed by Appropriate
Authority under No.BOM/7735/91-92 under section 269 UD
(3) of the Income Tax Act, 1961.
iv. Annexure ‘D’ – Photocopy of Agreement between
M/s.Acme Favouritise and Acme Management alongwith the
photocopy of the Order passed by Competent Authority under
section 269 UL (3) of the Income Tax Act, 1961.
v. Annexure ‘E’ – Plan showing land under acquisition and
sale instances.
vi. Annexure ‘F’ – Certified copy certified by Sub Registrar
for Agreement to Sale of Flat under No.P/BDC/744/99.
vii. Annexure ‘G’ – Certified copy, certified by Sub Registrar
for Agreement to Sale of Flat under No.BPDR-1/1823/99.
viii. Annexure ‘H’ – Certified copy, certified by Sub Registrar
for Agreement to Sale of Flat under No.PBDR-1/1196/2001.”
61 Harshad S. Maniar, valuer in his report relied on the sale instance
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no.1 i.e. agreement executed and registered on 24.6.1996 with Sub-
Registrar of Bombay under No.BBJ/2291/1996. In this sale instance,
plot no.1 admeasuring 731.30 sq.mtr. was sold for total consideration
of 63 lakhs by Mr.Sunder Dayaram Ramchandrani and another. The
rate of land works out to Rs.8614.79 per sq.mt. The distance of the
said plot and the acquired land is 1.4 kms. He has given his
comparative table for determining the market value of acquired land on
the date of issuing notification which comes to Rs.9545 sq.mtrs. At the
time of deciding market value of acquired land, he has considered
relevant date, size, location, situation, zone, permissible FSI,
encumberance, means of communication and civic amenities. He also
considered 15% rise in the market value from the year 1995 to 1997
i.e. from 20.3.1995 to 10.4.1997 ( 2 years and 20 days). He worked
out rise to 30.83%. This sale instance was proved and marked as
Exhibit.
62 The valuer also recorded sale instance no.2 i.e. Memorandum of
Understanding dated 17.7.1991 in respect of land bearing S.No.54,
CTS No.169 Survey No.81, CTS No.168 of Village Majas admeasuring
33260 sq.mtrs for total consideration of Rs.4,88,25,000/-. But copy of
the same was not proved. Hence, that cannot be considered for
determining the market value in question.
63 The valuer also relied on 3 sale instances in respect of flat
no.705, 405 and 302. The sale instance of those flats were placed on
record and were marked as Exhibits.
64 Considering the evidence of valuer and the cross-examination
taken by acquiring body I am satisfied that the valuation report as well
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as sale instance dated 24.6.1996 can be considered for determining the
market value of acquired land in the case in hand.
65 It is to be noted that in the present proceeding, the learned
Counsel for the acquiring body raised several objections about the
claimants rights for compensation, consideration of Urban Land Ceiling
Act, question of pleading on record etc. It is to be noted that in the
land acquisition reference under section 18, acquiring body can justify
the market value awarded by Special Land Acquisition Officer. They
cannot object for entitlement of compensation to the claimants. In any
case, in the present proceeding, Special Land Acquisition Officer after
considering the revenue records and evidence of claimants held that
the claimants are the owners of acquired land and they are only
entitled compensation. Hence, though the counsel for acquiring body
made several submissions on those points, filed written submissions
and relied on several authorities, those can not be considered for
determining the market value of acquired land.
66 Acquiring body’s counsel in his written submission dated
6.2.2017 raised objection for granting additional compensation to the
claimant on several grounds as under:
a) No direct access to road
b) Flaws in the valuation of Mr.Maniar
c) Radial distance of 1.4 km. in Mumbai makes a
enormous difference
d) 15% rise per year unjustified
e) Mr.Maniar's valuation report is biased in favour of
claimants
f) Mr.Maniar's allowance for a acquired land's
“undulated” situation was in accurate.
g) Mr.Maniar failed to account for the fact that the
acquired land was agricultural land.
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h) Mr.Maniar has relied only one sale instance
i) The acquired land was potentially surplus vacant land.
j) An adverse inference must be drawn against the
claimant failing to produce the full certified copy of the
Indenture dated 24.6.1996.
67 Though the claimants claimed compensation in respect of
acquired land to the tune of 9,41,60,491 with benefits under section
23(1A), 23(2) and section 28 of the said Act, @ 20,020 per sq.mtr. i.e.
1860 per sq.ft. but at the time of argument the learned senior Counsel
for the claimants made a statement that they are restricting their claim
@ 9545 per sq.mtr. i.e. 886 per sq.ft. on the basis of sale instance no.1
dated 24.6.1996.
68 The learned Counsel for the claimants relied on authorities to
show how to determine the market value of acquired land. How much
deduction is required to be done if the acquired land is agriculture.
The counsel for the claimants also relied on several authorities to show
the rights of local authority and or acquiring body at the time of
determining the market value of acquired land.
69 It is to be noted that the acquiring body acquired claimants land
27,449.7 sq.mtrs. from some survey number in the year 1967 for
construction of bus depot. At that time, land acquisition officer
awarded compensation @ Rs.130 per sq.mtr. Thereafter, acquiring
body constructed bus depot which was in function as on the date of
issuing Notification for acquisition in the case in hand. The acquiring
body sent their proposal to the government for acquiring the land
admeasuring 5133.6 sq.mtrs which was just next to the bus depot,.
This itself shows that the land in the present case was the most
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convenient, suitable and useful to the acquiring body. Not only that,
having full knowledge about the situation and other amenities in the
acquired land, which was just adjacent to bus depot owned by
acquiring body, they sent their proposal for acquisition. Apart from
that, valuer as well as claimants specifically stated in their evidence
that the acquired land had proper access. Therefore, the objection
raised by the acquiring body on the ground of no direct access to the
road is not maintainable.
70 Bare reading of the valuer Mr.Maniar’s affidavit of evidence and
the valuation report shows that considering the principle for fixing the
market value, the gap between the sale instance dated 20.3.1995, the
valuer has arrived market rate of acquired land @ Rs.9,545/- per
sq.mtr. At the time of working out the market value, the valuer
considered the relevant date, size, location, situation, zone,
permissible FSI, encumbrance, means of communication and civic
amenities and tenure between the sale instance dated 20.3.1995 and
the date of acquisition. Therefore, the objection raised by the acquiring
body in their submission as well as in written submission for
determination of additional market value has no substance.
71 Considering the law laid down by the Apex Court in the matter of
Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona
and Another (Supra), at the time of deciding the market value of
acquired land if it is agricultural the same deduction is required to be
done.
72 In the present proceeding, the Special Land Acquisition Officer at
the time of deciding the market value of acquired land on the basis of
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sale instance of flats which were situated more than 1 ½ km. from the
land under acquisition deducted 40%. In the case in hand, the valuer
stated that the market value of acquired land should be Rs.9,545/- per
sq.mtr. on the date of acquisition. Though he considered all the
relevant factors to arrive at market value of acquired land on the date
of issuing notification under section 126(4) of the MRTP Act, in the
interest of justice additional 20% is required to be deducted from
Rs.9,545/- per sq.mtr. on the ground of agricultural land, distance from
sale instance dated 20.3.1995 and development expenses. After
deducting 20% (i.e. 1909) from Rs.9,545/- per sq.mtr. it comes to
Rs.7,636/- per sq.mtr. (9545-1909). Hence, in the above mentioned
facts and circumstances and the law declared by the Apex Court as
stated hereinabove, claimants are entitled compensation in respect of
acquired land @ Rs.7,636/- per sq.mtr. along with other statutory
benefits as per amended provisions of the said Act i.e. 30% solatium,
12% Component, interest etc. of the said Act. Hence, reference is
partly allowed as under:
a) Claimants are entitled market value of acquired land
admeasuring 5,133.6 sq.mtr. @ Rs.7,636/- per sq.mtr. instead of
Rs.1,678/- per sq.mtr. as awarded by Special Land Acquisition
Officer.
b) Claimants are also entitled all benefits as per the 1984 amended
provisions of the said Act i.e. 12% component 30% solatium
under section 23(2) and interest.
c) Payment already made to the claimants to be adjusted at the
time of calculating the amount due and payable to the claimants.
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d) Special Land Acquisition Officer is directed to calculate the
amount due and payable to the claimants @ Rs.7,636/- per. sq.
mtr. within three months from today and pay the same to the
claimants or deposit in the Registry of this court.
e) If amount is deposited in the Registry of this court, claimants are
entitled to withdraw the same without any security after the
Appeal period is over.
f) LAR is partly allowed as above with costs.
(K.K. TATED, J.)
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