Special Land Acquisition Officer ... vs Unknown
2002 Latest Caselaw 283 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This is a reference under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act) which has been made by the Special Land Acquisition Officer, MHADA, Mumbai for determination of the amount of compensation since the claimants are not satisfied with the amount of compensation awarded by him.

2. The property acquired is the land of the entire first floor admeasuring 265.19 sq. mtrs. i.e. 2853-50 sq.ft. of building known as Nur Baug, Dongri situated at Babulal Tank Road, bearing Land Survey No. 2023, of Mandavi Division for the Rationing Office for the facilities of the citizens of Mumbai city. This property belongs to the trust Noorbaug Charitable Trust having their office at 2 Rehman Mansion, 44 Shahid Bhagatsing Road, Mumbai 400 039. The property consists of ground plus upper floor. A Notification No. LAQ/AWKP/4 dated 24-12-1992 was issued by the Special Land Acquisition Officer under section 4 of the Act for acquiring 2000 sq.ft. of area on the first floor of the said building. The same was published in Maharashtra Government Gazette, at Konkan Division under Supplementary Part I, page Nos. 226 and 227 on 24-12-1992. It was also published in Marathi and English news papers viz. Dainik Samana and Free Press Journal dated 26-12-1992. Summary notice was also given by publication on the acquired property as also on the notice board of the Collector, Mumbai city dated 13-1-1993. Thereafter notification under section 6 of the Act was issued on 23-12-1993 which came to be published in Maharashtra Government Gazette and also in English and Marathi news papers dated 24-12-1993. Similarly notice under section 6 came to be published on the notice board of Collector, Mumbai city on 15-2-1994 and at the acquired property on the same day. As per original notification, the proposed acquisition was in respect of first floor area admeasuring 2000 sq.ft. (i.e. 185-80 sq.mtrs.). However, pursuant to the letter of Controller of Rationing dated 9-12-1994, Public Works Department jointly measured the area of the subject property when it transpired that the total area including existing building is 4701-37 sq.ft. Accordingly amended notice under section 6 and amendment proposal was sent to the Additional Commissioner, Konkan Division on 19-8-1995. Thereafter no objection certificate from the land holders were sought and the land holders were personally contacted; when Shri Harshad S. Maniar valuer on behalf of the holder suggested to acquire the entire building under section 49 of the Land Acquisition Act. The matter was personally discussed with the acquiring body- Rationing Officer when they informed that it was not necessary to acquire the entire area. As mentioned earlier, after carrying out survey it was noticed that area on the ground floor is 1847-87 sq.ft. and on the first floor is 2853.50 sq.ft. Since the proposed acquisition of 2000 sq.ft. could not be adjusted on either of the floors, therefore, the acquiring body and owners were informed that area admeasuring 2853-50 sq.ft. of first floor would be acquired on receipt of their consent. Later on amendment was effected to the notifications already issued under sections 4 and 6 and proposed acquisition was made in respect of area 2853-50 sq.ft. (i.e. 265-19 sq.mtrs.) i.e. entire first floor of the suit building. The Special Land Acquisition Officer after following necessary procedure of issuing notice under section 9(1) and (2) and publishing the same as well as giving personal notices under section 9(3) and (4) proceeded in the matter. The claimants appeared and claimed compensation at the rate of Rs. 3000/- per sq.ft. pursuant to their letter dated 29-8-1994. In support of their claim, the claimants relied on the valuation report prepared by their valuer Shri Harshad S. Maniyar. The valuation report inturn referred to three sale instances, out of which transaction in respect of C.S. No. 1784 had taken place by registered conveyance deed dated 20-5-1987. Essentially, valuation done by the claimants at the rate of Rs. 3,000/- per sq.ft. was on the basis of the said sale instance. Other two instances referred to in the valuation report were relied only to demonstrate the fair market value of the land from one end of Masjid Bunder to Byculla. On the other hand, the Special Land Acquisition Officer collected around eight sale transactions from the office of the Sub-Registrar. On analyzing the materials on record, the Special Land Acquisition Officer was of the view that none of the transactions relied by the claimants were comparable instances; and similarly the transactions collected from the office of the Sub-Registrar were also discarded. The Special Land Acquisition Officer was however of the view that it would be appropriate to value the suit property as per the market rate fixed by SPEED PROOF COMPUTER SYSTEM, which is approved by the Deputy Director of Town Planning and Valuer. Accordingly, the Special Land Acquisition Officer, taking into consideration the prevailing rate prescribed by the SPEED PROOF COMPUTER SYSTEM, suggested that rate at Rs. 3150/- per sq.ft. would be reasonable for the acquired property. This proposal however, did not meet the approval of the Commissioner, Konkan Division. The Government, however, fixed the value as per confidential letter No. ABD/1269/43/6/96 A-4 dated 8-2-1996 of the Revenue and Forest Department. In the circumstances, the Special Land Acquisition Officer while making the Award under section 11 of the Act on 15-2-1996 took the view that the rates of SPEED PROOF COMPUTER SYSTEM are for the built up area of new construction, whereas the present suit property is old load bearing one and mainly occupied by the residents nearby. Besides this the Special Land Acquisition Officer also noted that the acquired property is comparably bigger than the sale instance No. 3 referred to by the claimants in respect of Vardhaman Chambers having 1856 sq.ft. of land only. The said property was shown at the rate of Rs. 1892/- per sq.ft. as on 10-12-1992. The Special Land Acquisition Officer also noted that the said property was on the ground floor whereas the suit property was on the first floor. In the circumstances, the Special Land Acquisition Officer determined the market value of the suit property at the rate of Rs. 1800/- per sq.ft. Besides that the Special Land Acquisition Officer awarded solatium at the rate of 30% on the market value and 12% part compensation from 13-1-1993 to 15-2-1996 i.e. the date of Award. After the Award, notice under section 12(2) of the Act was issued and possession of the property was eventually taken on 26-4-1996. On depositing the compensation amount as per the Award, the claimants accepted the same without prejudice to their right to claim enhanced compensation. The claimants thereafter made application for enhancement of compensation on account of which the present reference has been made by the Special Land Acquisition Officer under section 18 of the Act.

3. Before this Court the claimants have examined only one witness Shri Harshad S. Maniar, who is a Government qualified registered valuer. The said witness has produced the valuation report prepared by him as well as the certified copy of the registered deed of conveyance in respect of instance No. 1 referred to in the valuation report i.e. C.S. No. 1784 of Mandvi division dated 20-5-1987. This witness has also produced the location plan of the said sale instance and the land under valuation. According to this witness the suit property is situated at the junction of four main roads viz. Ramchandra Bhatt Marg, Shivdas Champsi Marg, Dr. Noishri Road and Samantbai Nagji Marg, with all civil amenities. This witness has also given the description of the property- that construction of the ceiling is of teak wood plank resting on teakwood joists; it has a Mangalore tiled roof supported over teakwood trusses; the walls are load bearing brick masonry walls; the stair case is of teakwood; the handrails and the hallusters are of teakwood; the plinth is 2 above the ground; the walls are 21 thick; the first floor flooring is of marble mosaic tiles; the doors and windows are of teak wood. After giving this description, this witness states that he had valued the suit property at the rate of Rs. 3000/- per sq.ft. on the basis of sale instance of Survey No. 1784 of Mandvi Division which was sold for total consideration of Rs. 26 lacs on 29-5-1987 at the rate of Rs. 993/- per sq.ft. The witness has also clarified that he has referred to two other sale instances only to show the fair market value of one end of Masjid Bunder to Byculla. So far as the sale instance bearing C.S. No. 1784 of Mandvi Division, on the basis of which the claimants have based valuation of the suit property at the rate of Rs. 3000/- per sq.ft. is concerned, he has given the description of the said property and emphasized that it is located only 360 mtrs. away from the suit property. Moreover, that property is situated in a narrow lane of 20 and is a ground floor structure. In comparison, according to him, the suit property is situated at the junction of four major roads, having shopping potentials. He further states that while valuing the suit property he has kept in mind 15% rise per annum from the date of agreement of sale instance dated 20-5-1987 till the date of section 4 notification. Although this witness has not given the break up as to the basis of arriving at Rs. 3000/- per sq.ft. in his valuation report, during his evidence has stated that he has provided for 15% rise per annum on compound basis and the valuation would therefore be Rs. 3219-66 per sq.ft. During his cross-examination he has admitted that the suit building is about 30 to 40 years old. It may be noted that even the acquiring authority proceeded on the premise that suit building is around 50 years old. He has denied that sale instance relied upon is not a comparable instance. But, according to him, the sale instance was in close proximity of the suit property, hence comparable. In his cross-examination he has accepted that the valuation of the first floor property depends upon how the property is used. Besides, other relevant factor mentioned in the cross-examination is that, he had kept in mind weightage of 25% while determining the value of the property under acquisition, having regard to its special location. This case has however, come for the first time in the cross-examination. This witness has denied that the valuation of the suit property done by him is incorrect since he had relied only on one sale instance. On the other hand, no evidence has been adduced on behalf of acquiring body. Accordingly this Court will have to adjudicate the matter in the context of evidence that has come on record before this Court.

4. The Counsel appearing for the claimants mainly submits that the sale instance in respect of C.S. No. 1784 of Mandvi Division relied upon by the claimants is a comparable instance. It is submitted that it has come in evidence that the suit property has additional special features of being located on junction of four major roads and having shopping potentials. It is therefore, submitted that, keeping in mind all the variables; and taking above referred sale instance as the basis, the suit property can be valued by giving 15% rise per annum on compound basis from May 1987 till the date of section 4 notification i.e. December 1992. Besides providing for such rise, the suit property would also deserve additional advantage of the special location, for which reason further 25% weightage be given while determining the market price. According to the learned Counsel, there can be no reason to deny the market price as claimed by the claimants at the rate of Rs. 3000/- per sq.ft. The learned Counsel further argued that as a matter of fact the Special Land Acquisition Officer in the first instance had thought it appropriate to Award compensation at the rate of Rs. 3150/- per sq.ft., as reasonable compensation and which was confirmed by the Divisional Deputy Director of Town Planning and Valuer. He submits that the only reason the said proposal has not been accepted and instead the present Award has been passed is because of the value fixed by the Government's confidential letter dated 8-2-1996. According to him, the justification for finally fixing the compensation at the rate of Rs. 1800/- per sq.ft. for the suit property given by the SLAO essentially is that the sale instance relied by the claimants was not comparable because it was of smaller area and that the suit property was old load bearing one and mainly occupied by residents nearby. The learned Counsel further submits that the claimants had relied on sale instance of Vardhaman Chamber only to show the fair market value of the land and that could not be made the basis for determining the market value of the suit property as has been done; inasmuch as, that instance pertained to auction sale by the Government- and rate of 1892/- per sq.ft. was none else but a reserve bid price for the proposed auction. However, that auction did not fructify. Even for that reason it cannot be considered as a sale instance in the strict sense. He therefore, submits that the principle applied by the SLAO is wholly inappropriate; whereas, the Court ought to accept the sale instance in respect C.S. No. 1784 of Mandvi Division relied by the claimants and by giving 15% p.a. rise on compound basis and 25% weightage for the location, the amount as claimed by the claimants at the rate of Rs. 3000/- per sq.ft. is reasonable market price of the suit property. Counsel for the claimants placed reliance on the following decisions, in support of his submission. He has relied on Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another, in support of the general principles relevant for evaluation and determining the market price of the acquired property. Reliance has also been placed on XXV Bom.L.R. 1182 The Government of Bombay v. Merwan Moondigar Aga, to contend that forced sale cannot be taken into account and made basis for determining the market value, for that would not be a fair market price. Reliance is also placed on P. Rajan v. Kerala State Electricity Board, , to contend that instances in municipal limits at a distance of 21/2 k.m. away from the acquired property cannot be relied as comparable instances. This authority is relied so as to discard the instance relied by the SLAO in respect of Vardhaman Chambers which is at a distance of about 2 k.mtrs. away from the suit property. He has also relied on decision The Land Acquisition Officer, Sub-Collector, Vijayawada v. Shaik Bahaileem and others, to contend that only one sale instance would be sufficient- if proved in evidence, and the Court would give necessary weightage even to one sale instance by applying principles for evaluation of market price. Reliance has also been placed on the unreported judgment of this Court in L.A.R. No. 11 of 1999 SLAO v. Kanatyalal Maneklal Chinai and others, decided on 29-8-1994- to contend that claimants would be entitled to weightage with regard to location of acquired property as well rise at the rate of 15% on comparable instance.

5. On the other hand, the learned A.G.P. for the acquiring authority submits that claimants have relied only on one sale instance and it would be unsafe to determine the market price on the basis of sole sale instance. In support of this submission he has not relied on any statutory provision or any judicial decision. He further submits that, in any case the sale instance relied by the claimants is not comparable instance. However, no details are pointed out as to why this instance is incomparable. This submission is presumably on the premise that the property in the sale instance is situated in a narrow lane and of lesser area and having taken place about five years prior to section 4 notification of the suit property. Be that as it may, the learned Counsel further submits that there is no basis for accepting the stand taken by the claimants that they would deserve 15% rise per year on compound basis; or for that matter weightage to the extent of 25% for the location of the suit property. He has thus supported the Award passed by the SLAO.

6. Having considered the rival submissions, the question that arises for my consideration is; whether the claimants are entitled for enhanced compensation at the rate of Rs. 3000/- per sq.ft. in respect of the suit property and for other consequential reliefs as claimed?

7. It is well settled that reference proceedings will have to be adjudicated on the basis of evidence adduced before the Court in this proceeding. As mentioned earlier, the acquiring authority has not chosen to adduce any evidence before this Court. In the circumstances, the case will have to be tested on the basis of the evidence adduced by the claimants. The claimants are essentially relying on the valuation report of Harshad S. Maniyar, who is a Government registered valuer. Besides the valuation report, the said Maniyar has been examined by the claimants as P.W. 1. The valuation report has been exhibited as Exhibit C-1. The valuation report gives the complete description of the suit property. Besides that it makes reference to the three sale instances. No doubt, the valuation report does not mention the break up on the basis on which said Shri Maniyar has opined that value of the acquired property should be at the rate of Rs. 3000/- per sq.ft. except mentioning that taking into account the three instances, situation, location and time factor the acquired property be valued at Rs. 3000/- per sq.ft. of built up area as on the date of notification under section 4 dated 24-12-1992. However, Shri Maniyar has deposed before this Court and has sought to explain or give some justification why he had fixed the proposed market value at the rate of Rs. 3000/- per sq.ft. He has explained that the sale instance being C.S. No. 1784, if taken as the basis- and if 15% rise is provided on compound basis and in addition to that weightage of 25% for location of the suit property the suit property will have to be valued at the rate of Rs. 3219-66 per sq.ft.

8. The first question that arises for my consideration is: whether the sale instance strongly relied upon by the claimants can be said to be a comparable instance? Ordinarily, I would have been inclined to answer this question in the negative. For on close examination of the said sale instance of C.S. No. 1784 and in particular the conveyance deed thereof, it would be seen that the said transaction is in respect of the entire property consisting of plot and structure standing thereon. In that sense, the consideration paid in that case is for both the plot and the building and/or structure standing thereon. Whereas, in the present case acquisition is in respect of the entire first floor only and not the land underneath the building. However, the learned Counsel for the claimants fairly conceeds on instructions that the acquisition is not only for the entire first floor but also for the proportionate land underneath the said building. This submission is on the premise that on the plain language of section 4 notification, and as understood by the SLAO the property acquired is the land of the entire first floor. In other words, the claimants contend that the acquisition is not only for the entire first floor but also for the proportionate land underneath the said floor and for which reason the sale instance of C.S. No. 1784 is comparable one. Accordingly, having regard to this submission, I have no difficulty in taking the view that the said sale instance is comparable one. It is seen that both in the valuation report as well as in the evidence Shri Maniyar has given the description of the acquired property as well as the description of the property in the said sale instance. To my mind, since the property in the sale instance is situated only 360 mtrs. away from the suit property, it can be accepted as a comparable sale instance. No doubt the property in the said sale instance is lesser in area, but nevertheless that would not materially alter the process of evaluation of the market price of the suit property, for, the said property is admeasuring 243-22 sq.mtrs. and the built up area is 2213 sq.ft., whereas the suit property admeasures 285-3 sq.mtrs. In that sense, there is no vast difference of size between the two properties. The other difference, at best, could be that the property in sale instance was only ground floor, whereas the suit property is on the first floor. In this view of the matter, I find no difficulty in accepting the sale instance in C.S. No. 1784 of Mandvi Division as comparable instance. However, it needs to be kept in mind that the property bearing C.S. No. 1784 is situated in a narrow lane of 20 road, whereas the suit property is situated at the junction of four main roads. The fact that the sale instance is five years prior to section 4 notification of the suit property is inconsequential, for the Court can always give some rise taking the price of the sale instance as the basis. These aspects of the matter would be dealt with a little later. Since the claimants have placed the certified copy of the conveyance deed of the said sale instance on record which is marked as Exhibit C-2; and from the evidence adduced by the claimants, it is seen that two properties are more or less comparable. The argument advanced on behalf of the acquiring body that since only one sale instance has been relied by the claimants does not commend me. It would have been different matter if the Court was to take a view that the sale instance relied was incomparable with the suit property. Merely because the claimants have relied on only one sale instance, that would not discredit the evidence produced by them. Something more than that would be required to discard this evidence. The nature of cross-examination in the present case would not permit this Court to take the view that this sale instance needs to be discarded. Besides, the claimants have rightly relied on the decision to contend that even one sale instance would be sufficient for the Court to determine the market price. It has come in evidence of P.W. 1, examined on behalf of the claimants, that no other sale instance was available in respect of the property on the junction of four roads. This has gone unchallenged. In that sense, it would be wholly inappropriate to expect the claimants to produce other sale instances- as comparable one, when none exists. It was open for the acquiring authority to bring on record some other comparable sale instance to counter the claim put forward by the claimants. However, that has not been done. In the circumstances, I would proceed to examine the matter on the basis of sale instance being C.S. No. 1784 of Mandvi Division as a comparable sale instance.

9. The said property C.S. No. 1784 is admeasuring 213 sq.mtrs. and built up area is 2213 sq.ft. which has been conveyed by registered deed dated 20-5-1987 at the rate of Rs. 993/- per sq.ft. Shri Maniyar has opined in his valuation report that market price of the suit property should be determined at the rate of Rs. 3000/- per sq.ft. as on 24-12-1992. However, he has not given any break up or justification for the rate of Rs. 3000/- per sq.ft. except for stating that he has taken into account three instances mentioned in the report, situation, location and time factor. There can be no difficulty in accepting the submission of the claimants that they would be entitled for reasonable rise and/or escalation. Reliance has been placed on an unreported decision of this Court (supra) to contend that claimants would be entitled for 15% p.a. rise on compound basis. The submission is that the sale instance of C.S. No. 1784 be taken as the base price-and rise at the rate of 15% per annum on compound basis thereon be awarded. Even if we were to accept this submission, it needs to be pointed out that no such specific justification has been suggested in the valuation report-except for vaguely stating that taking into account the time factor the valuation be determined. Be that as it may, even in the examination-in-chief all that has been stated by P.W. 1 in para 12 is that he has considered 15% rise per annum from the date of market value till the date of section 4 notification. However, in the next breath this witness has improved the case and has stated that 15% rise is on compound basis. Nevertheless, this case put forth by the claimants in their evidence has gone unchallenged, for the acquiring authority has not cross-examined this witness with regard to that aspect. In that sense, the claimants would be entitled to 15% rise p.a. on compound basis on the rate in the comparable sale instance dated 20-5-1987 from the date of the said agreement till the date of section 4 notification on 24-12-1992.

10. What has however, remained unexplained by the claimants is the actual quantum that would be worked out on the basis of rise at the rate of 15% p.a. on compound basis on the said sale instance. That exercise being ministerial in nature, the same can however be worked out. On applying the said principle, to my mind, if we take the rate of Rs. 993/- per sq.ft. as the basis, as appearing in the said sale instance as on 20-5-1987- and by adding 15% p.a. rise on compound basis from May 1987 to December 1992, the amount that would eventually be arrived at is Rs. 2172-03 per sq.ft. and not Rs. 3219-66 as suggested by P.W. 1 in his evidence. In other words, in 1987 if the basic price is Rs. 993/-, by adding 15% thereon- the same would become Rs. 1141-95 in 1988; and adding further 15% on the latter amount it would become Rs. 1313-24 in the year 1989; and so on Rs. 1510-22 in 1990; Rs. 1736-76 in 1991; and Rs. 1997-27 in May 1992 and Rs. 2172-03 in December 1992. Thus even if we were to accept the stand taken on behalf of the claimants for rise at the rate of 15% p.a. on compound basis, the claimants would become entitled to the rate of Rs. 2172-03 per sq.ft. in the year 1992 i.e. corresponding to section 4 notification.

11. Besides giving benefit of 15% rise, the claimants, further contend that they would be entitled for additional weightage on account of special location of the suit property which is situated on the junction of four main roads. According to the claimants they would be entitled to 25% weightage. Even this submission needs to be accepted, for this has virtually gone unchallenged. Inasmuch as, Shri Maniyar in his cross-examination, albeit for the first time has deposed that the claimants ought to get weightage of 25% while determining the valuation of the property under acquisition because of the special location. In this view of the matter the claimants would be entitled to 25% weightage on the amount arrived at after giving rise of 15% p.a. on compound basis referred to above. By applying this principle the amount that would be worked out, would represent the gross market price of the suit property. The same would be Rs. 2715-03 per sq.ft. (i.e. adding 25% on Rs. 2172-03). For the sake of convenience it would be appropriate to round of this figure, which amount would still be only Rs. 2700/- per sq.ft. In other words, the valuation done by the valuer Shri Maniyar to arrive at the conclusion that the property under acquisition should be valued at Rs. 3219-66 or for that matter Rs. 3000/- per sq.ft. is demonstrably incorrect, false and misleading, if not dishonest. I shall advert to this aspect of the matter a little later.

12. In my view, no doubt the claimants would be entitled to 15% rise in price per annum on compound basis and in addition weightage of 25% on account of special location of the suit property, but at the same time certain deduction will have to be made having regard to the fact that the suit property is admittedly 30 to 40 years old, though the acquiring authority claims that it is around 50 years old. Besides that the valuation arrived at is on the basis of the sale instance which is on the ground floor, whereas the suit property is on the first floor. Shri Maniyar has accepted in the cross-examination that valuation of the ground floor and the valuation of the first floor depends on how the property is used. It needs to be noted that the property was originally reserved in the development plan at the relevant point of time for public purpose i.e. public hall and secondary school. Since the property was already reserved in the development plan, it is obvious that claimants would not have secured the same market price for the suit property. It needs to be further noted that in the examination in chief no attempt has been made by Shri Maniyar to explain as to the life of the property in the sale instance relied upon by the claimants, whereas he has admitted in the cross-examination that the suit property is 30-40 years old. Besides that, since the suit property is on the first floor, coupled with the fact that it was reserved for public hall and secondary school in development plan, certain deductions will have to be provided for on the amount already calculated by giving benefit of 15% rise and 25% weightage. No doubt the learned Counsel for the claimants would contend that even the property (structure) in the sale instance is of the same age, as is evident from the conveyance deed which refers to the fact that the structure therein was existing when earlier conveyance was made on 13-4-1945. Even if we were to accept this submission, I am not inclined to accept the amount advanced on behalf of the claimants that location of the suit property on the first floor; and the fact that it has been reserved for public purpose in the development plan, will not make any difference to its market price. Undoubtedly, the suit-property is acquired for housing the Rationing Office, which, by no standards a commercial use. P.W. 1 has conceded that the rate of the property on the ground floor and on the first floor would depend upon how the property is used. In my view, for the purpose of acquisition of the suit property and the fact that it is situated on the first floor would materially affect its market price. The fact that the suit property will be used for Rationing Office and, therefore, it will make no difference whether it is on the ground floor or the first floor is wholly inapposite. On the other hand having regard to the nature of and purpose of user- for which the property is being acquired and the fact that it is located on the first floor would surely diminish its market price to some extent. This is besides the fact that the property is already reserved in the development plan for some other public purpose. To my mind, in cases where property is already reserved for some public purpose in the development plan, there would be no willing buyer- unless the prospective buyer wants to indulge in speculation. Such property would not get the same price as any other property. Learned Counsel for the claimants contends that even the property in the sale instance was reserved in the development plan for defence purpose, however, there is nothing on record to support this submission. No evidence-documentary or even oral- has been adduced in support of this contention, therefore, I would decline to entertain the same. To my mind, deduction of at least 20% should be provided for in view of the fact that in any case the suit property is situated on the first floor as well as the fact that it was reserved for public hall and secondary school in the development plan. On deducting 20% from the aforesaid amount of Rs. 2700/- per sq.ft., the fair market price of the suit property will have to be determined at the rate of Rs. 2160/- per sq.ft. (i.e. Rs. 2700- Rs. 540 = Rs. 2160/-). In my view, the fair market price of the suit property can be determined on the aforesaid basis.

13. In other words, taking the sale instance of C.S. No. 1784 of Mandvi Division as the basic price and giving rise at the rate of 15% p.a. on compound basis thereon, plus weightage of 25% for the location; and, deducting 20% on account of suit property situated on the first floor and being reserved for public hall and secondary school in the development plan, the fair market price would be Rs. 2160/- per sq.ft. In that sense the claimants would be entitled for enhancement at the rate of Rs. 360/- per sq.ft. Besides enhanced compensation, the claimants would be entitled to get 30% solatium amount and other statutory benefits.

14. Thus, the total amount to which the claimants are entitled is as under:

COMPUTATION Rs. Ps.

(A)Market value awarded by Court @ Rs. 2,160/- per sq.ft. for 2853-50 sq.ft. 61,63,560-00

(B) Less market value as awarded by Special Land Acquisition Officer 51,36,300-00

(C) Additional market value payable to the claimants (A-B) 10,27,260-00

(D) Interest on (C) above (i.e. on Rs. 10,27,260) @ 9% p.a. under section 28 of the Act for 1 year from the date of possession i.e. (from 26-4-1996 to 25-4-1997) 92,453-40

(E) Interest on (C) above (i.e. Rs. 10,27,260) @15% p.a. under section 28 of the Act for the balance period till today i.e. 1778 days (from 26-4-1997 till 8-3-2002) 7,50,603-40

(F) Solatium at 30% on market value (A) under section 23(2) of the Land Acquisition Act, 1894 18,49,068-00

(G) Solatium awarded by the Special Land Acquisition Officer 15,40,890-00

(H) Additional Solatium (F-G) 3,08,178-00

(I) 12% component under section 23(1)(A) from the date of publication of notice under section 4(1) till the date of award i.e. 1129 days) from 13-1-1993 to 15-2-1996. 22,87,778-38

(J) 12% component paid 19,05,750-00

(K) Balance (I-J) 3,82,028-38

(L) Additional solatium under section 23(2) and Additional Component under section 23(1)(A) of the Land Acquisition Act, 1894 as granted by this Hon'ble Court (i.e. (H) + (K)) 6,90,206-38

(M) Interest on (L) (i.e.- Rs. 6,90,206-38) above @ 9% p.a. under section 28 of the Land Acquisition Act, 1894 for one year from the date of possession i.e. from 26-4-1996 to 25-4-1997. 62,118-57

(N) Interest on (L) above @ 15% under section 28 of the Land Acquisition Act, 1894 for the balance period from 26-4-1997 till 8-3-2002 (i.e. 1778 days 5,04,323-40

(O) Additional compensation payable as on 8-3-2000 C+D+E+L+M+N 31,26,965-15 And further interest will be payable on (O) i.e. Rs. 31,26,965/- above at 15% p.a. from 9th March, 2002 till the date of payment under section 34 of Land Acquisition Act.

15. Before parting I may record that this reference has been conducted by the learned A.G.P. in highly unsatisfactory manner, for, no evidence has been adduced. Moreover, the cross-examination is also very cryptic. In fact it is seen that in the cross-examination certain favourable answers, including opportunity given to the claimants expert witness to clarify that the claimants were entitled to weightage of 25% while determining the value of the property has been provided. Inasmuch as, that was not the case even in the examination in chief. Whereas, the expert has not been effectively examined though this witness has improved the case in chief that rise of 15% p.a. on compound basis be granted and of valuing the property at the rate of Rs. 3219-66 per sq.ft. without any particulars. The cross-examination is not only cryptic but does not even touch upon the important aspects of his evidence. Besides virtually no argument was advanced by the learned A.G.P. To observe subriety I would refrain from making any further observation except to dire that copy of this order be forwarded to the Secretary of the concerned department of the Government for necessary action.

16. I wish to further record that it was distressing to note that Shri Harshad S. Maniyar, who had appeared before this Court as P.W. 1 and who is a qualified Civil Engineer and Member of Institute of Engineers, Fellow of Institute of Valuers, Fellow of Institute of Surveyors, has, by his act of omission and commission, attempted to mislead this Court by giving false evidence. As is demonstrated from the calculations made in paras 10 and 11 above, it is seen that by no standards the market price of the suit property would exceed Rs. 2700/- per sq.ft. However, Shri Maniyar in his valuation report, which is in the nature of certification of the market value, has positively opined that the fair market price of the suit property should be valued at Rs. 3000/- per sq.ft. Even during his evidence he has reiterated this position and in fact went to the extent of suggesting that the fair market rate of the suit property should be valued at Rs. 3219-66 per sq.ft. by giving benefit of rise at the rate of 15% and weightage of 25%. However, the break up as to on what basis he has arrived at those figures is neither furnished in the valuation report or his evidence. Obviously, it has been done with purpose- because the final figures mentioned by him are mismatch with the actual calculation or break up. Inasmuch as even if we were to accept the principle of weightage propounded by him and apply the same to the market price in respect of the sale instance relied upon, which is Rs. 993/- per sq.ft., even then the actual calculation would come to only Rs. 2700/- per sq.ft. and not Rs. 3219-66 per sq.ft. as deposed to by him before the Court or for that matter Rs. 3000/- per sq.ft. as stated in his valuation report. Even the learned Counsel for the claimants was unable to offer any satisfactory explanation as to how the property can be valued at Rs. 3219-66 or Rs. 3000/- per sq.ft. as suggested by Shri Maniyar in view of the evidence that has come on record. No doubt, the difference between the actual gross market price and the one mentioned by Shri Maniyar is only Rs. 300/- per sq.ft., but if the Court had relied upon the same, the claimants would have got unjust benefit to the extent of Rs. 26 lacs. In other words, the evidence given by Shri Maniyar before this Court is per se incorrect, false, dishonest and misleading. This is unbecoming of any Government registered valuer. Shri Maniyar has completely glossed over the role and duty of a Government registered valuer. Appointment of any person as a Government registered valuer is bestowing recognition of expertise and integrity on that person. Such person is expected to discharge public duty. In one sense he is the appointee of the Government and, therefore, a public servant. It is on the basis of valuation report submitted by such person, not only the authorities would act, but even the courts of law would readily respect the same as authentic-unless rebutted. It is obvious that Shri Maniyar in his quest to favour the claimants has indulged in acts unbecoming of any Government registered valuer or for that matter any qualified and practicing Architect, Engineer, Valuer or Surveyor. It is seen that Shri Maniyar pursued the matter on behalf of the claimants before the Land Acquisition Officer, but also before this Court. Thus, Shri Maniyar virtually wore the shoes of claimants- for obvious reasons, thereby completely over-looking the role and duty of any Government registered valuer. It is because of the act of commission and/or omission of Shri Maniyar that this Court would have been mislead and persuaded to direct the State to dole out avoidable money from the public exchequer to the claimants. To my mind, the sole moto of Shri Maniyar was to extract maximum compensation for the claimants. Obviously, his interest was in conflict with the calling he has had accepted. The conduct of Shri Maniyar is highly depricable. For, he attempted to mislead this Court in arriving at a just adjudication. This amounts to a penal offence. In this view of the matter, I would think it appropriate to refer the case of Shri H.S. Maniyar, Government Registered Valuer to the appropriate Government to take suitable corrective measures including to examine as to whether he should be allowed to practice as Government Registered Valuer in future. Besides, I would also think it appropriate to refer his case to the Institute of Engineers, Institute of Valuers and Institute of Surveyors with whom he is associated, for taking appropriate corrective action against him. Necessary action be taken by the concerned authorities, including the Government, at the earliest- obviously after giving opportunity to Shri Maniyar to show cause, if any. The proposed corrective action be taken by the concerned authorities not later than six months from the date of receipt of copy of this judgment. Concerned authorities may also report compliance of the action taken by them within the above said period of six months to this Court.

Reference is partly allowed in the above terms with no order as to costs.

Certified copy expedited.

All concerned to act on the copy of this order duly authenticated by the Associate of this Court.