Special Land Acquisition Officer ... vs Pratapsingh Shoorji Vallabhdas ...
2005 Latest Caselaw 575 Bom

JUDGMENT

S.U. Kamdar, J.

1. The present reference is filed by the SLAO under Section 18 of the Land Acquisition Act, 1894. The land sought to be acquired is in respect of area admeasuring about 1982 sq.mts situated at Kanjurmarg, Bombay. The public purpose for which the said land is proposed to be acquired is Jogeshwari-Vikhroli Link Road. On 18-3-1995 a notification was issued under Section 126(2) of the MRTP Act, 1966 and same was published in the Government Gazette on 26-6-1975. The land in question forms part of CTS No. 122(pt) is more particularly located on the eastern side of Central Railway Line between Kanjurmarg Railway Station and Vikhroli Railway station. On 13-3-1975 an award was passed under Section 11 of the LA Act and the SLAO has determined the value of the land at Rs. 20/- per sq.mts after giving various other allowances such as distance and valuation of structure and ultimately an award has been passed in favour of the Claimants for a sum of Rs. 8,00,189.957-. The claimant being dissatisfied by the said award on 31-6-1975 made an application for enhancement of the compensation under Section 18 of the Act pursuant thereto the SLAO has made the present reference on 9-9-1981 in this Court seeking a decision by this Court under Section 18 of the LA Act on the request of the claimants for enhancement of the said valuation.

2. In the present land acquisition reference two witnesses are examined by the claimant, one is Aditya Pratap Singh who is the son of claimant No. 1 and constituted attorney of claimant No. 1 to 3 and another Mr. Vinit Ramanlal Shah, expert valuer in support of his valuation report dated 28-1-1994. The learned Counsel appearing for the SLAO has cross-examined the said witness but has not produced any witness on their behalf. Insofar as oral evidence is concerned the first witness namely Aditya P. Singh has identified the said land and has produced documents in the form of order and plan of the said property. He has deposed that the said land was acquired for public purpose for construction of Jogeshwari-Vikhroli link road. He has also deposed that pursuant to the said acquisition the claimant was awarded compensation of Rs. 34,198.10/- (including 15% solatium) at the rate of Rs. 15/- per sq.mtr. He has stated in the evidence in examination-in-chief that he was looking after the said land and he has visited the same and thus he is aware of the location and condition of the said land. According to him the said land was vacant in 1975. According to him the said land was a levelled land and that prior to taking over possession he had visited the land. He has identified the said land in the plan. In his examination-in-chief he has stated that the land was at a distance of 100 mts. from Kanjurmarg Railway Station and 300 mts from Vikhroli Railway Station. He has further stated that the said land was also at a distance of 100 mts from LBS Marg which is one of the major arterial road. He has been cross-examined by SLAO and in his cross-examination he has admitted that the land which was acquired was a barren land and was not put to any use at the time of acquisition in 1975. He has also deposed that the land was a grassy land. He has deposed that the surrounding area of the land which was a government land was occupied by hutments. He has also admitted in the cross-examination that there is no development on the acquired land or surrounding areas of the said land. He has however deposed that the land is not a residential land and was closely located to Kanjurmarg Railway Station. In his cross-examination he has also expressed his inability to classify the acquired land for residential purposes but he has stated that the acquired land is located on the eastern side of the railway line. He has admitted in his cross-examination that the said land had no access and he has further admitted that there are no other comparable sale instances are available on the eastern side of the railway line. He has admitted that there was no income generated from the said land.

3. The second witness which was examined was Vinit Ramanlal Shah a certified architect and valuer. In his affidavit in his examination-in-chief he has also filed a valuation report as well as the plan of the said acquired land. In his examination-in-chief he has deposed that he is a government approved valuer and has specialised in valuation of property both movables and immovables. He has also deposed that he has prepared the valuation report dated 20-1-1994 for a land under reference and according to him the value of the acquired land is much higher as mentioned in the valuation report. According to him the valuation specified in the award dated 31-3-1979 seeking award under the claim at Rs. 20/-is not appropriate and higher rate should be awarded. He has also admitted that the land is situated on the eastern side of Kanjurmarg Railway Station, In his evidence he has deposed that according to him the sale instances No. 1 and 15 which are proved before the SLAO are comparable sale instances in respect of the land under reference. According to him the sale instance No. 1 is comparable because the area of the said land and the sale instance No. 15 is approximately similar whereas sale instance No. 3 is of an area around 1215 sq.mtr. According to him by virtue of similarity of size sale instance No. 1 should be preferred to the sale instance No. 15. According to him the award of the SLAO is purpotedly wrong because the SLAO has adopted a wrong method of valuation of the average rate. According to the valuer Mr. Vinit R. Shah the sale instance in respect of each of the land must be separately considered and cannot be clubbed together and average rate arrived at such a method of valuation is erroneous... because each land differs in its size, shape and location and other amenities. According to him the principle of valuation of the land can never be based on the basis of average rate of large number of sale instances and therefore the award of the arbitrator insofar as it pertains to the determination of the average rate of interest is bad in law. He has thereafter proceeded by taking into consideration the rate specified of sale instance No. 1 as most comparable sale instances and has arrived at his own valuation as mentioned in his valuation report. According to him there are certain additions and deductions are to be granted in respect of the size and location of the said land. According to him after taking into consideration the allowances, the market rate of the acquired land should be around Rs. 637- per sq. mts. excluding solatium and interest. According to him in his evidence he has further deposed that the said land has great potential of development because it was located close to Bombay Agra Road as well as close to the railway station.

4. Vinit Shah was cross-examined by the SLAO. In his cross-examination he has stated that the plan prepared by him as Exhibit-C5 though was prepared after visiting the acquired land but no survey of the land was carried out in respect thereof. He has also accepted that he has visited the office of the land survey department and/ or obtained a copy of survey plan before preparing the plan at Exhibit-C-6. He has admitted that the valuation of the land must be made as on the date of notification which in the present case is of 26-6-1975. However he has prepared the valuation report based on the valuation of land as on 31-3-1979. He has accepted in his cross-examination that there is an error in his valuation report because there is a variation in the price between the date of publishing of notification for acquisition of land and the date on which the award was passed. In his further cross-examination he has also admitted that he visited the site in 1994 and he has never visited prior thereto. He also admitted that he has not taken any measurement of the acquired land before making valuation report in respect of its location from the eastern express highway. He has also admitted that he has referred to sale instances being sale instance No. 1 and 15 and he has given reasons in his valuation report why he did not prefer the other sale instances. He has also admitted in his cross-examination that the sale instances which are being indicated being 1 to 15 are located on the western side of LBS Marg whereas the land in question is located on the eastern side of the LBS. He has also admitted that the eastern side of LBS Marg is not well developed. He has further contended that according to him the said land was located in a developed area. He has further deposed that the distance of the acquired land from the sale instance is not a very material criteria for a comparable land and according to him the sale instance No. 1 is more comparable. In his further cross-examination he has denied the suggestion that the price of the land were depressed from 1971 to 1975 because of the Indo-Pak War. He has admitted the instance No. 7 to 11 which were available for comparable in respect of valuation of land were not taken into consideration. According to him sale instance No. 11 was not taken into consideration because it was based on a deed of gift. He has also admitted in his evidence that if the land is not having access or surrounding of the land was not developed then the price of the land would have been much lower. He has also admitted that in case of grassy land the comparisons of instances must be of same kind of land and not with a developed land. Insofar as sale instance No. 1 is concerned he states that he is not in a position to disclose the advantages of the land as he does not remembers the same.

5. Before I deal with the rival submissions and contentions of the parties it is necessary to mention that there was a controversy in respect of the rate awarded by the SLAO whether it is Rs. 157- or Rs. 20/-. The learned Counsel for the SLAO states that the record of the SLAO indicates that the rate which was prescribed in respect of the acquired land was Rs. 157- per sq.mtr. However the certified copy of the award which is filed along with the record in Court indicates that the rate awarded is Rs. 207-. In view thereof the learned Counsel for the SLAO has stated that insofar as the award which is filed in the Court which is a duly certified copy and the SLAO will stand by it and the rate which has been prescribed will be treated as Rs. 207- per sq.mtr of the acquired land.

6. The documentary evidence which has been produced before me is in the form of affidavit by way of oral evidence of examination-in-chief of Aditya Pratap Singh being Exhibit-C1, copy of the power of attorneys of claimant No. 1 and 3 in favour of the said Aditya Pratap Singh being Exhibit-C2 and C3, An affidavit in the form of examination-in-chief of valuer Vinit Ramanlal Shah Exhibit-C-4 and Exhibit-C-6 is the location plan of the suit property. Exhibit-C-5 is the valuation report prepared by Vinit Ramanlal Shah dated 6-2-2004 along with location of sale instances No. 1 and 15. Exhibit C-7 is the registered deed of conveyance dated 30-1-1971 executed by and between Indumati Vrijlal Shah and Roshanlal Bhasin and others. The said deed of conveyance is in respect of sale instance No. 1. In the deed of conveyance the area mentioned is around 3180 sq.yds and price stipulated is approximately Rs. 1,54,0007- equivalent to Rs. 60.10 per sq.mts. The said plot of land being instance No. 1 reflected by the deed of conveyance Exhibit-C-1 is an open plot of land.

7. Out of the aforesaid documentary evidence which has been produced before me in my opinion the only relevant documents which is required to be considered is Exhibit-C-5, C-6 and C-7. Exhibit-C-5 which is the valuation report, Exhibit-C-6 is the location plan and Exhibit-C-7 is a deed of conveyance in respect of sale instance No. 1. Insofar as Exhibits-C-1 and C-4 are concerned the same pertains to the oral evidence by way of examination of chief which has been analysed hereinabove. Exhibit-C-2 and C-3 are the mere power of attorneys and nothing much turns thereon.

8. Though before the SLAO 15 instances were produced for the purpose of determination of the market value of the land before me only one instance is proved i.e. sale instance No. 1. It is now well settled that under the provisions of Section 18 for Land Acquisition Act what is required by me is to analyse only those sale instance which are proved before me and not the instances which are referred to and or relied upon of the Land Acquisition Officer in his award. Thus the claimant has produced before me only one instance i.e. sale instance No. 1 which is reflected in Exhibit-C-7 which is the deed of conveyance dated 30-1-1971, Thus no other instances were proved before me by either of the parties. Insofar as the SLAO and or the acquiring body is concerned they have not produced any oral evidence nor any documentary evidence and therefore they have not proved anything before me. Thus I am required to now consider instance No. 1 as a proved instance. The market rate fixed in respect of sale instance No. 1 is Rs. 57.927-. Both the learned Counsels have admitted that the said land being instance No. 1 is situated on the western side of what is known as LBS Marg and or Bombay Agra Road which is also not disputed before me by both the parties. In the evidence also it is established that on the eastern side of Kanjurmarg Railway station and or L.B.S Marg the Bombay-Agra Road is not very well developed whereas on the western side of the said road the land is very well developed. The land under acquisition is on the eastern side of the LBS Marg and that also at some distance of LBS Marg. Thus the land under acquisition is though comparable to the instance No. 1 since both the lands are located in the same locality still certain deductions are required to be given in respect of the land under acquisition. According to me the following deductions are required to be given out of the sale price of instance No. 1 of 57.92.

First deductions due to the distance from LBS Marg (Bombay Agra Road) 10% deduction.

The development in respect of locality on the western side of the LBS Marg where land of sale instance No. 1 is located whereas the land being on eastern side of LBS Marg which is not developed the deductions are required to be given of 30%.

Hutments surrounding the said land, grassy land, amenities as well as no proper access thus 20% deduction for the land under acquisition from the market value of sale instance No. 1.

9. The aforesaid deductions are necessary on the basis of an admitted evidence before me. Firstly the area on the western side of the LBS Marg is well connected and well developed whereas the area on the eastern side is undeveloped and not very well connected. Secondly it is also an admitted position before me on the evidence that the land under acquisition were surrounded by hutments as well as it has no proper access and that the land was a grassy land. In the aforesaid circumstances, the aforesaid deductions are required to be given.

10. On the other hand the learned Counsel for the respondent has contended that the award passed by the arbitrator should be up-held and no additional amount should be sanctioned in favour of the claimants herein. I am not able to accept the argument of the learned Counsel for the respondent for the simple reason that the arbitrator under the award has not determined the market value by relying upon any particular instance. The sale instances which were produced before him of the western side of LBS Marg has been clubbed by him and then he has arrived at an average price and thereafter made deductions in respect of the plot of land under acquisition by virtue of the fact that the same is on the eastern side. I do not find it is a proper exercise which the SLAO should have undertaken while passing the award. It is now well settled that the market value of the land has to be determined of the land under acquisition has to be ascertained on the basis of comparable sale instances and not on the basis of average price derived by clubbing larger number of sale instances. However before me the respondent has not produced any evidence so as to discard sale instance No. 1. The sale instance No. 1 is proved and therefore I am required to accept sale instance No. 1 which is only the sale instance proved before me as a comparable land for the purpose of determining the market value of the land under acquisition. In the aforesaid circumstances I am of the opinion that the compensation payable by the Land Acquisition Officer to be worked out as under :

  _____________________________________________________________________
Sr.   Particulars                         Percentage/Rate    Amount
No.
_____________________________________________________________________
1.    Market value of Instance No. 1 as   57.92 per sq.mtr  .+57.92 
      accepted by the Court 
2.    Increased in Market Price between   @ 50% per yr.      +12.74 
      1971 to 1974 
3.    Deductions for surroundings               20%         .-11.58
      Hutments/Grassy Land/No Access 
4.    Deductions for Distance from the          10%          .-5.79 
      Acquired land 
5.    Deductions for under development of       30%         .-17.37
      the acquired land compared to sale
      Instance
_____________________________________________________________________
                                               TOTAL      Rs. 35.91
_____________________________________________________________________

Compensation Payable by the SLAO along with Additional solatium under
Section 23 and Interest under Section 28
_____________________________________________________________________
Sr.   Particulars                          Rate         Total Amount
No.
_____________________________________________________________________
1.    Final Market Rate Arrived as above   35.90    Rs.  71 171.75 ps. 
2.    Additional solatium                   @ 15%   Rs.  21,351.52 ps. 
3.    Interest u.s 28 @ 9% for 1 year       @ 15%   Rs.    5249.27 ps.
      For remaining period                          Rs. 217,844.88 ps.
      LESS: Amount already paid as awarded by the   Rs.   34198.00 ps.
      SLAO
_____________________________________________________________________                
                                       TOTAL AMT. : Rs.  281419.42 ps.
_____________________________________________________________________
 

11. In the aforesaid circumstances I direct the Land Acquisition Officer to make payment of Rs. 281419.42ps with interest at the rate of 15%p.a. under Section 28 from 21-3-2005 till payment and or realisation. The aforesaid payment to be made within a period of 12 weeks from today. Land Acquisition Reference is disposed off accordingly.