The State Of Maharashtra vs Shri Ramdas Dhaya Patil
2004 Latest Caselaw 489 Bom

JUDGMENT

P.V. Kakade, J.

1. The State has filed this appeal against the judgment and order date 4.2.1992 passed by the Addl. District Judge, Raigad-Alibag in Land Acquisition Reference No. 388 of 1987 granting enhanced compensation to the claimant respondent at the rate of Rs. 11/- per sq.mtr. alongwith additional components contemplated under the provisions of the Land Acquisition Act (hereinafter referred to as "the said Act") as against the award of Rs. 1/- per sq.mtr. granted by the Special Land Acquisition Officer (in short, S.L.A.O.").

2. As against this, the claimant has filed cross-objection claiming that the award of the learned Trial judge was not reflecting the true market price of the impugned property and, therefore, he claimed that the just and proper market value of the property would be Rs. 15/- per sq.mtr.

3. I have heard Shri Tated, the learned A.G.P. for the appellant and Shri patil, learned counsel for the respondent claimant. Perused the record.

4. The claimant bears Survey No. 10 Hissa No. 1 (total area 6450 sq.mtrs.) situated at Valavali, Tal. Panvel, was acquired by the State for New Bombay Metro Project by notification of 4th February, 1970. The award came to be declared on 14.9.1986 and the S.L.A.O. fixed the compensation including various components under the provision of the said Act at Rs. 19,834/- i.e. Rs. 1/- per sq.mtr. Hence, reference under Sec. 18 of the Act came to be filed submitting that the award granted by the S.L.A.O. was too inadequate and did not reflect the true market value on the date of the notification under Section 4 of the Act. It was submitted that the location, situation, sale statistics as well as other relevant factors were sufficient to show that the impugned land was much more valuable than which was assessed by the S.L.A.O. and hence the claimant claimed enhanced compensation at the rate of Rs. 15/- per sq.mtr.

5. The learned Trial Judge, while adjudicating the dispute on merits came to the conclusion that the proper market value of the impugned land was Rs. 11/- per sq.mtr,. and, therefore, the claimant was entitled for the enhanced compensation at the said rate alongwith additional benefits under Section 23(1-A) and 23(2) and 28 of the Act and, as such, the reference came to be partly allowed. Hence the appeal is filed by the State. The claimant has filed the cross-objection.

6. At the outset, it must be noted that, it is not in dispute that the acquisition of the impugned land was not an isolated venture on behalf of the State but the acquisition was for the purpose of New Bombay Metro Project and lands in about more than 90 villages in and around Tal. Panvel came to be acquired for the said project. It is also to be noted that no evidence was led on behalf of the State but the claimant led his own evidence as well as examined expert valuer Shri Jeevan Kulkarni whose valuation report is at Exh. 27. As is clear from the record, the learned Trial Judge has heavily relied upon the said report. It would be just and proper to refer to the said report for the purpose of determination of the value of the land especially when it is apparent that no sale instances from village Valavali itself are available and, therefore, the sale instances from surrounding other villages may not be of much help especially when they are not executed at the relevant time.

The evidence on record shows that the impugned land is located on the eastern side of the Bombay Pune National Highway No. 4 and is to the East of railway line of Central Railway joining Diwa-Panvel Apta railway line. The land is plain and it is very close to the Kalamboli railway station. The other landmarks noted by the expert valuer which are not in dispute are that the land in Valavali is located in Valavali Gaothan itself. It is about 320 meters at Western side of Kalamboli railway station, 1600 meters from M.I.D.C. Industrial Area, Taloja and on Eastern side of 2 kms. With Bombay Pune National Highway. It is located on similar distance from Jawahar Industrial Estate, Kamothe and 4 kms. From Panvel city. It is also at the distance of about 2 kms. From Sion-Panvel Highway as well as Kalamboli Junction. It is further contended that the infrastructural facilities, such as, railway transport, road transport, water and electricity were available even at the time of notification under Section 18 of the said Act. The topography is said to be that the land is levelled piece of land, plain and drained and, therefore, the cost of development would be negligible according to the expert opinion. The expert valuer Jeevan Kulkarni has further made it clear in his report that there is tremendous scope for further development due to the proximity of M.I.D.C. Industrial Estate and nearness to Bombay City. All these aspects were taken into account by the learned Trial Judge while coming to the conclusion that the land was valued at Rs. 11/- per sq.mtr. as on the date of notification under Section 4 of the said Act.

7. Shri Patil, learned counsel for the claimant vehemently urged that this rate was inadequate and in fact the learned Trial Judge should have granted at least Rs. 15/- per sq.mtr. considering the entire available evidence on record. In this regard, it must be noted that the Division Benches of this Court have time and again had occasion to decide the market value of the lands which were acquired for the New Bombay Metro Project from different villages. In First Appeal No. 754 of 1986 alongwith several other appeals, the Division Bench of the court (Puranik & Moharir, JJ.) on 25th/26th February, 1993 had occasion to adjudicate the similar issue regarding various lands located in surrounding villages. For the purpose of adjudicating the relevant issue, the Division Bench thought it fit to make several groups of the impugned lands depending on the proximity of the said lands to the National Highway which runs through the New Bombay Metro Project itself and came to the conclusion that those lands were valued between Rs. 20/- to Rs. 25/- depending on the groups made for the purposes of valuation on the basis of proximity to the National Highway and other areas. In this regard, they also noted that the purpose of the acquisition is for development of a township and the valuation of the land is not to be determined merely for the purpose of residence or a township thereby signifying the non-agricultural use, but the fact must be borne in mind that this township is a necessary supplement to the industrial growth in and around this area thereby enhancing its value more than an ordinary residential area would fetch. It is necessary that the industries will try to accommodate their officers and workers in its vicinity and thereby it becomes a necessary supplement to the industry itself. Therefore, assessing the market value of these lands had to be in consonance with the industrial growth of whole track as such. It was further observed that, assuming that some of the lands are near railway station or other landmarks, but in the magnitude of the growth of the industrial development and the surrounding areas the disadvantage merely on the ground of distance, from the landmarks, such as, national highway as well as industrial areas, would disappear particularly when there are various infrastructural facilities available to the impugned lands. Therefore, taking the view into account and noting the available evidence on record including that of export valuer, I am of the view that the impugned land would be of the market value of Rs. 15/- per sq.mtr.

8. The learned A.G.P. urged that the Apex Court has time and again given emphasis on the fact that certain development charges are required to be deducted and the judgments of the Apex Court as well as this Court are of the view that the repair and development charges would be 10% to 20% from the awarded amount. The valuer has opined that the land is levelled and well threshed and, therefore, the cost of development would be negligible. Therefore, I am of the view that, it would be necessary to deduct development charges at the rate of 10% from the awarded amount and, therefore, the net market value of the impugned land would be Rs. 14/- per sq.mtr.

10. The learned A.G.P. submitted that the reference under Section 18 filed by the claimant was time barred and, therefore, the appeal should be allowed on that basis alone. For that purpose, he sought to put reliance on the provision of Section 18. Provision of Section 18(2)(b) of the Land Acquisition Act stipulates thus -

"Section 18(2)(b): In other cases, within six weeks of the receipt of the notice from the Collector under Section 12, Sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire."

On this basis, my attention was drawn to the fact that the reference under Section 18 was made by the claimant on 10.12.1986. According to his own application, it was submitted that the notice of the award was received by the claimant on 21.9.1986 and, therefore, since the reference is not filed within a period of six weeks or 42 days, it is said to be barred by limitation. Shri patil, the learned counsel for the claimant vehemently urged that though the notice was received on 21.9.1986 and amount was received on 28.11.1986, still the application for certified copy of the award was made on 22.9.1986 and the copy of the award was received on 4.12.1986 and thereafter the reference was filed on 10.12.1986 i.e. within six days from receipt of the copy of the award and, therefore, the claim is within limitation.

In this regard it must be noted that this issue was neither raised nor any evidenc was led by the State in the lower Court and, therefore, the claimant had absolutely no opportunity to meet with the said contention sought to be raised for the first time at this stage. Shri Tated, the learned A.G.P. submitted that, since it was a pure question of law, it can be raised at any stage of the dispute. I propose to disagree with this proposition. In this case, the question of limitation would be the mixed question of law and facts because it was specifically required to be averred in the lower Court and issue was required to be raised so as to give opportunity to the claimant to meet the issues squarely. Moreover, it was submitted on behalf of the claimant that receipt of the notice was inconsequential because by such notice it was not clear to the claimant as to on what grounds the award came to be granted at the given rate. In other words, only after receipt of the copy of the award the claimant came to know about the reasons that the compensation was granted at the said meager rate and, therefore, he had to made up his mind to file reference under Section 18 after going through the copy of the award received on 4.12.1986. In my considered view, this submission has ample force because ultimately the claimant who is required to file reference under Section 18 of the Land Acquisition Act, must first know the reasons given by the S.L.A.O. in the course of the award about the grant of particular amount of compensation and thereafter he would have required to make up his mind whether to file reference or not. Taking into account all these aspects, I am of the view that this claim cannot be said to be barred by limitation.

11. So far as other additional components contemplated under the provisions of the Land Acquisition Act i.e. under Section 23(1-A), 23(2) and Section 28, are seen to be properly awarded and, as such, no interference in that regard is required in the impugned award passed by the learned Trial Judge.

12. Therefore, the appeal of the State stands dismissed with no order as to costs.

The cross-objection filed on behalf of the claimant is hereby allowed in the terms noted above in the course of the judgment.

With these directions, the appeal stands disposed of with no order as to costs.