Bombay High Court
The State Of Maharashtra Through The ... vs Mr. Jagdish Madanlal Gupta on 18 March, 2025
2025:BHC-AS:12613
FA No. 607 of 2021 and 799 of 2018 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 607 OF 2021
Shri. Jagdish Madanlal Gupta ]
Age 65 years, Occ. Business ]
Residing at 16-A, Andheri Industrial Estate, Near ]
Desai Road, Andheri (W), ]
Mumbai - 400058. ] ...Appellant.
Versus
1. State of Maharashtra ]
Through Special Land Acquisition Officer, ]
Thane, Metro Center No. 3, Thane ]
2. Executive Engineer ]
Public Works Department ]
Thane Division, Thane ] ...Respondents.
WITH
FIRST APPEAL NO. 799 OF 2018
1. State of Maharashtra ]
Through Special Land Acquisition Officer, ]
Thane, Metro Center No. 3, Thane ]
2. The Executive Engineer ]
Public Works Department, ]
Thane Division, Thane, ]
District Thane. ] ...Appellants.
Versus
Shri. Jagdish Madanlal Gupta ]
Age : 65 years, Occ. Business ]
Residing at 16-A, Andheri Industrial Estate, Near ]
Desai Road, Andheri (W), Mumbai - 400058. ] ...Respondent.
------------
Mr. Ashutosh Kulkarni, Ms. Vrushali L. Maindad, Ms. Shaheen Kapadia, Ms.
Simran Raut for Appellants in FA No. 607 of 2021.
Mr. A. R. Patil, AGP for State.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : 5th February, 2025.
Pronounced on : 18th March, 2025.
Judgment :
1. Both the First Appeals arise out of the Judgment and Award
dated 1st July, 2013 passed by the Reference Court in L.A.R No. 90 of
2011 filed under Section 18 of Land Acquisition Act, 1894 [for short, "L.
A. Act"]. First Appeal No. 607 of 2021 is filed by original Claimant
seeking enhancement of the compensation, whereas First Appeal No.
799 of 2018 has been preferred by the State Government challenging
the enhancement granted by the Reference Court.
2. With consent, both Appeals were taken up for hearing together
and are disposed of by this common judgment. Common submissions
were advanced in both the Appeals. For the sake of convenience,
Appellant in First Appeal No. 607 of 2021 is referred as "Claimant" and
the Appellant in First Appeal No. 799 of 2018 is referred to as "State
Government".
FACTUAL MATRIX :
3. The Claimant was owner of land bearing Survey No. 144 (Part)
admeasuring 15070 sq. metres situated at revenue village Chene,
Taluka and District - Thane, out of which land admeasuring 2980 sq.
metres was acquired for widening of Thane Ghodbunder State Highway
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No. 42. The notification under Section 6 of L. A. Act read with Section
126(4) of the Maharashtra Regional and Town Planning Act, 1966 was
published on 14th August, 2003. The Award under Section 11 of L.A. Act
was declared on 14th May, 2004, awarding compensation at the rate of
Rs. 350/- per sq. metre with statutory benefits. The Claimant accepted
the compensation under protest and filed a reference under Section 18
of the L. A. Act claiming enhanced compensation at the rate of Rs.
5,000/- per sq. metre along with the statutory benefits.
4. The State Government resisted the claim for enhanced
compensation. The Claimant examined himself, whereas the State
Government examined the Special land Acquisition Officer and Deputy
Engineer, Public Works Department in support of its case and also
produced documentary evidence. Vide impugned Judgment and Award
dated 1st July, 2013, the Reference Court partly allowed the reference
and directed the State Government to pay enhanced compensation at
the rate of Rs. 1,000/- per sq. metre along with all statutory benefits.
SUBMISSIONS :
5. Mr. Kulkarni, learned Advocate appearing for Claimant would
submit that Survey No. 101, which was adjacent to the Claimant's land
bearing Survey No. 144 was acquired by granting compensation of Rs.
3,000/- per sq. metre. He submits that during the hearing, neither party
produced any comparable sale instances and therefore, the
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potentiality of land has to be considered. He submits that the Claimant
is entitled to same compensation as awarded to Gat No. 101 of Rs.
3,000/- per sq. metre on principle of parity. He submits that on 25 th
February, 2003, the Mira-Bhayandar Municipal Corporation had
sanctioned the plan of Claimant for starting petrol pump on the
acquired land. He submits that development charges were paid in the
year 2003 and in March, 2003, the Application for non-agricultural use
was filed by Claimant and permission was granted on 12 th November,
2003. Pointing out to impugned judgment, he submits that the
Reference Court noted that evidence given by the Claimant is duly
corroborated by the documentary evidence, which includes the letter
dated 25th February, 2003 issued by Mira-Bhayandar Municipal
Corporation sanctioning the map for obtaining 'non-agricultural
permission' in respect of Survey No. 144, as well as the order of 'non-
agricultural permission' of Collector, Thane dated 12 th November, 2003.
He submits that the Reference Court also noted that the State
Government's witness DW-1 admitted that Award was not delivered by
her and she has not personally seen the suit property. He further
points out the submission of the Claimant before the Reference Court
that compensation of Rs.3,000/- per sq. metre is awarded to adjacent
land Survey No. 101, which was situated in hillock area, having steep
slope, uneven surface, and not good for residence, whereas, the suit
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property was having high potentiality for non-agricultural use. He
submits that only reason why the enhanced compensation as
demanded was not awarded by the Reference Court was by holding
that the suit property was agricultural land and no development took
place in the suit property which was located in 'non-development
zone', whereas the adjacent Survey No. 101 was developed and internal
roads, electricity, drainage, etc. were provided. He submits that the
said finding cannot be sustained as the award of Special Land
Acquisition Officer notes that as far as Survey No. 101 is concerned, the
plans for commercial use was granted in or around the year 1995 and
the only development carried out was constructing two permanent
structures and carrying out landscaping. He submits that the Reference
Court failed to note that even if it is held that subject-property is
situated in 'no development zone', the same permits carrying out
activity of poultry farm, amusement park, resort, etc. He submits that
the subject-property is surrounded by hotels and is close to National
Highway. He submits that both Survey No. 101 and Survey No. 144 are
identically situated and there is no rationale in the findings of the
Reference Court to distinguish the same. He submits that the
Reference Court has held that the copy of the Application for seeking
'N.A. permission' is not placed on record and has failed to note the N.A.
potentiality. He submits that the Reference Court observed that there
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is no document produced by the State Government to show that the
suit property was in 'no development zone'. He submits that though
the Reference Court has held that the subject-property is having great
commercial potential, the Reference Court erroneously held that the
subject-property is undeveloped land, whereas Survey No. 101 is a
developed land and on that basis, deducted one-third of the value
awarded to Survey No. 101 and has awarded only Rs. 1,000/- per sq.
metre. He would further submit that the Reference Court has factually
erred in holding that permission for starting petrol pump was not
granted whereas Exhibit-45, which was permission dated 17th
December, 2002 is issued for starting the petrol pump subject to
conditions. He submits that in 2003 itself, the Claimant had applied for
sanctioning the plan and for N.A. permission, whereas the permissions
applied by the owners of Survey No. 101 were of the year 1994-95, and
no steps were taken for development of Survey No. 101 and therefore,
both properties were identically situated. In support, he relies upon
the following decisions:
New Okhla Industrial Development Authority vs.
Harnand Singh (Deceased) through LRs and Others1
U. P. Awas Evam Vikash Parishad vs. Asha Ram
(dead) through LRs and Others2
6. Per contra, learned AGP would submit that evidence on record of
1 2024 SCC OnLine SC 1691
2 (2021) 17 Supreme Court Cases 289
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the Claimant would show that subject-land is falling in Gram Panchayat
area and therefore, is not within the municipal limits. He would further
submit that Claimant had deposed that on 12 th November, 2003, the
Collector, Thane had granted non-agricultural permission, whereas the
notification was issued on 2nd September, 2003 and under the
provisions of L.A. Act, once the notification has been issued under
Section 6, no steps can be taken in respect of the said land. He submits
that the Reference Court has held that the suit property falls in forest
zone and therefore, there is restricted use. Pointing out to Paragraph
No. 14 of the Affidavit of evidence of Claimant, he submits that the
Claimant had deposed that he had spent money for earth filling of the
said land, which shows that the land was undeveloped and there is no
question of seeking parity with Gat No. 101.
7. The following points would arise for consideration:-
(i) Whether the Claimant has established that he is entitled to
compensation at the rate of Rs. 5,000/- per sq. metre?
(ii) Whether the Reference Court has rightly granted enhanced
compensation at the rate of Rs.1,000/- per sq. metre by applying one-
third deduction to the compensation granted in respect of Survey No.
101?
As to Point Nos. (i) and (ii):
8. For the purpose of determining the quantum of compensation,
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Section 23 of the L. A. Act sets out the matters which are required to
be considered in determining the compensation and reads as under:-
23. Matters to be considered in determining compensation-
(1) In determining the amount of compensation to be awarded
for land acquired under this Act, the Court shall take into
consideration-
first, the market value of the land at the date of the
publication of the notification under section 4, sub-
section (1);
secondly, the damage sustained by the person
interested, by reason of the taking of any standing
crops or trees which may be on the land at the time
of the Collector's taking possession thereof;
thirdly, the damage (if any), sustained by the person
interested at the time of the Collector's
taking possession of the land, by reason of severing
such land from his other land;
fourthly, the damage (if any) sustained by the person
interested, at the time of the Collector's taking
possession of the land, by reason of the acquisition
injuriously affecting his other property, movable or
immovable, in any other manner, or his earnings;
fifthly, if, in consequence of the acquisition of the land by
the Collector, the person interested is compelled to
change his residence or place of business, the
reasonable expenses (if any) incidental to such
change; and
sixthly, the damage (if any) bona fide resulting from
diminution of the profits of the land between the
time of the publication of the declaration under
section 6 and the time of the Collector's taking
possession of the land.
(1-A) In addition to the market value of the land, as above
provided, the Court shall in every case award an amount
calculated at the rate of twelve per centum per annum on
such market value for the period commencing on and from the
date of the publication of the notification under section 4,
sub-section (1), in respect of such land to the date of the
award of the Collector or the date of taking possession of the
land, whichever is earlier.
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Explanation. - In computing the period referred to in this sub-
section, any period or periods during which the proceedings
for the acquisition of the land were held up on account of any
stay or injunction by the order of any Court shall be excluded.
(2) In addition to the market value of the land as above
provided, the Court shall in every case award a sum of thirty
per centum on such market value, in consideration of the
compulsory nature of the acquisition."
9. The market value of the land on the date of publication of the
notification under Section 4 of L.A. Act has to be determined. One of
the well-accepted modes of establishing the prevalent market value is
production of comparable sale instances, which is not produced by
either party. Consequently, the market value has to be determined by
considering various factors such as location, characteristics of land,
potentiality, etc. which inevitably involves certain amount of
guesswork. At the same time, any negative factors which would result
in reduction of market value will also have to be taken into
consideration.
10. About the location of the acquired land, the Claimant has
deposed that abutting the land, there is State Highway No. 42 towards
north and about 900 metres of the land out of Survey No. 144 is on the
front main road which is acquired by the Opponents. He has further
deposed that there are hotels and Toll Naka located at distance of
about 300 to 400 metres, a government guest house at 100 metres.
He has deposed that one Padmavati Developers has started
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construction on land near the acquired land. He has further deposed
that he had proposed setting up of petrol pump on the land bearing
Survey No. 144. He has deposed that to the east of his land, Thane
Municipal Corporation limit starts and within the Corporation's limit,
there are various commercial establishments such as hotels,
warehouses etc. As the acquired land falls in gram panchayat limit,
there is less municipal tax and great demand for non-agricultural use.
He has further deposed that to east of his land is the Chena river which
is utilized for shooting of films and serials.
11. As far as potentiality is concerned, he has deposed that Mira-
Bhayandar Municipal Corporation has sanctioned the plans for
construction of petrol pump on 25 th February, 2003 and he has
obtained the agency of Bharat Petroleum and has obtained the
necessary statutory permissions. He has deposed that he has applied in
March, 2003 for grant of non-agricultural permission and was granted
the permission on 12th November, 2003 by the Collector. He has
deposed that the land is shown in Forest Zone which can be converted
into other zone and his land is not in 'no development zone'. He has
further deposed that adjacent Survey No. 101 has been granted
compensation of Rs 3,000/- per square metre which is situated in
hillock area, having steep slope and uneven surface and not ideal for
residence. He has deposed that he has incurred loss as he has
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expended funds for earth filling on the acquired land.
12. The Special Land Acquisition Officer has deposed that the
acquired land is located at about 750 metres from National Highway
Nos. 8 and 9 km away from Borivali, 5 Km away from Dahisar, 20 Km
from Andheri, 30 Km from Bandra and 16 Km away from Thane. She has
further deposed that an under-construction three-star hotel is at a
distance of 500 metres. She has deposed that on the date of
notification, the acquired land was located in 'No Development Zone'
and was an agricultural land and N.A. permission was not granted. She
has deposed that SLAO has taken into consideration the sale instances
at Village Chene during the period of acquisition, which are of the
years 1997, 2001, 2002 and has increased the sale price by 10%.
13. In cross-examination, she has admitted that she has not passed
the Award and has not seen the acquired land. She has admitted that
she has not seen the development plan of Mira Bhayander Corporation
and is not able to depose in respect of the zone in which the acquired
land falls in the development plan. She has admitted that she is not
aware of the zone or the use of acquired land. She has stated that she
is unable to state whether the boundary of Survey No. 101 is adjacent
to Survey No. 144.
14. The Deputy Engineer of Public Works Department was examined
as second witness who has deposed identically as SLAO. In cross-
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examination, he has admitted that he has not given instructions about
the contents of his Affidavit of examination-in-chief. He has admitted
that he has not perused the document produced by the Claimant. He
has admitted that determination of market value is not their work and
he is unaware of the manner in which the market value is fixed.
15. The Reference Court distinguished the characteristics of Survey
No. 101 which was adjacent property by noting that in respect of
Survey No. 101, permission was issued for commercial use by Mira-
Bhayandar Municipal Corporation and Collector and accordingly, it was
developed and internal roads, electricity, drainage, etc. were provided,
whereas suit property was agricultural land and no development took
place in suit property which was located in 'no development zone' at
the time of acquisition and awarded one-third of the value awarded to
Survey No. 101.
16. The Survey No. 101 as well as Survey No. 144 have been acquired
for the purpose of widening of Thane-Ghodbunder State Highway No.
4. The notification was published under Section 6 and Section 17(1) of
L.A. Act on 14th August, 2003. Award passed by Special Land Acquisition
Officer gives in detail the location and the characteristics of the lands
in question. Perusal of the Award shows the proximity of Village Chene
to Thane-Ghodbunder State Highway No. 42 and Mumbai-Ahmedabad
National Highway No. 8 which is located at a distance of about 2 to 3
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kms. There is heavy vehicular traffic on National Highway No. 8 and all
vehicles coming from National Highway to Thane pass through State
Highway No. 42.
17. The acquired land is located at distance of 750 metres from
National Highway No. 8, there is an under-construction three-star hotel
at a distance of 500 metres adjacent to which, there is an existing
hotel. There is a government rest house close by and in close vicinity is
a proposed development by one Padmavati Developers. The acquired
land was proposed for the construction of a petrol pump and to the
east at a distance of 500 metres there is hotel Hill View, Surekha Hotel
and a Toll Naka. The acquired land is thus, located in a developed area
with all amenities in close proximity and the land itself has good
commercial potential.
18. The acquired land being close to the State and National Highway
has good road connectivity due to frequency of bus services on the
State Highway and Village Chene is thus, well connected to Borivali
which is at distance of 9 Km and Thane, a well-developed district. There
are hotels, Toll Naka and a government rest house in the vicinity at a
distance of less than one kilometre which shows that the area is well-
developed. There is also underway construction of one Padmavati
Developers which indicates the potentiality of further development.
19. The Claimant has not produced any comparable sale instance and
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has based his claim for enhancement on the amount of compensation
of Rs. 3,000/- per square metre granted to adjacent Survey No. 101.
There is no dispute that Survey No. 101, which is adjacent to Survey No.
144, has been awarded compensation at the rate of Rs.3,000/- per sq.
metre, whereas the subject land has been awarded compensation at
the rate of Rs. 350/- per square metre.
20. If the Award is perused for discerning the factors of distinction
between Survey No. 101 and Survey No. 144, the distinguishable
factors noted in the Award are that:
(a) Survey No. 144 (part) is located in No Development Zone,
whereas Survey No. 101 (part) is located in hilly area;
(b) Survey No. 101 has been granted permission for commercial
use in the year 1995 and has been developed, internal road to
some extent has been developed, there is landscaping and
garden have been developed and there are two pucca
constructions and there is water, road, drainage facility available
to the Survey No 101.
(c) Survey No. 101 has been granted N.A permission in the year
1995 and is approved for construction of a four-star resort under
Maharashtra Tourism.
21. As per Annexure "A" to the Award, the acquired lands were
granted compensation based on the ready reckoner rate and
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Claimant's land was granted compensation at the rate of Rs. 350/- per
square metre. It is well-settled by the Hon'ble Apex Court in catena of
decisions that the prices mentioned in ready reckoner for the purpose
of payment of stamp duty are fixed for the entire area and cannot be
the basis for determination of compensation under Land Acquisition
Act, 1894. Despite the same, as in the present case, the compensation
paid to Survey No. 101 has formed the basis of the Claimant's claim for
enhanced compensation, the compensation awarded to Survey No. 101
can form a comparable basis.
22. Admittedly Survey No. 101 is abutting Survey No. 144 forming
part of the same village acquired under the same notification and are
similarly located. Whether both the lands have the same
characteristics, has to be seen as compensation was awarded by
treating Survey No. 101 as developed land and Survey No. 144 as
agricultural undeveloped land.
23. Though Survey No. 144 was described in the Award as land
falling in the 'No Development Zone', and the zoning certificate
produced by the Claimant confirms Survey No. 144 as falling in the
'Forest Zone', the end result is that the land can be put to restrictive
uses in either of the zones. The Claimant's land was proposed for
setting up a petrol pump and had commercial potentiality considering
its proximity to the State and National Highway which has also been
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noted in the Award. In March, 2003, the Claimant had applied for
converting the land for non-agricultural use i.e. prior to the issuance of
Section 6 notification, which was granted on 12 th November, 2003 i.e.
after the issuance of Section 6 Notification. The Mira-Bhayandar
Mahanagar Palika had also sanctioned the plans for the petrol pump.
All these factors are indicators that the land was capable of being put
to commercial use.
24. In New Okhla Industrial Development Authority vs Harnand
Singh (Deceased) Through Lrs and Others (supra), the Hon'ble Apex
Court has laid down the broad relevant factors to be taken into
consideration i.e. characteristics of the land, future potentiality of the
land and factors denoting market sentiments. The Hon'ble Apex Court
in the context of future potentiality has indicated that valuation of
land is influenced by its potentiality and lands with the potential to be
used for commercial or residential purposes, that are located in or near
a developed area or which are proximate to tourist destinations are
perceived to hold greater value in the future.
25. In the present case, the evidence on record establishes the
location of the acquired land in a fast-developing area with close
proximity to both State and National Highways and having commercial
potential. Survey No. 101 is located in a hilly area whereas Survey No.
144 is on agricultural land. The lands were acquired for the purpose of
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widening of Thane-Ghodbunder State Highway No. 42 and the
availability of water, electricity, drainage, etc. in Survey No. 101 would
not be relevant factors for the acquired purpose. Both Survey No. 101
and Survey No. 144 were granted non-agricultural permission. Though
Survey No. 101 was granted non-agricultural permission in the year
1995, the Award notes that internal roads are ready to some extent
and there are only two pucca constructions. It is, therefore, evident
that there was not much development in Survey No. 101 and no
commencement certificate was granted in respect of proposed
construction in Survey No. 101 so as to distinguish the two survey
numbers in developed and undeveloped land. Moreover, Survey No.
101 is situated in a hilly area which would require some amount of
levelling for the purpose of road widening. The fact that amount was
spent for earth levelling in Survey No. 144 would not negate the aspect
of parity with Survey No. 101 in light of the admitted position that
Survey No. 101 is situated in hilly area. Though Mr. Patil, Learned AGP
would point out the Claimaint's deposition that the acquired lands falls
in the Gram panchayat area and not within the limits of Thane
Municipal Corporation, as the plans were sanctioned by Mira Bhayandar
Mahanagar Palika, both Survey No. 101 and Survey No. 144 are situated
within Mira Bhayandar Mahanagar Palika limits.
26. Upon due comparison of the characteristics of Survey No. 101
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and Survey No. 144, there are certain plus and minus features in both
the lands which even out. The commercial potentiality of both the
lands is an accepted feature. The Reference Court has accepted that
the topography, potentiality and advantages attached to both Survey
No. 101 and Survey No. 144 are similar and has granted one-third of
compensation to Survey No. 144 by holding that Survey No. 101 was
developed and permission granted for using the same for commercial
purpose whereas Survey No. 144 was agricultural land and no
development took place.
27. The Reference Court failed to notice that on 17 th December,
2002, i.e. prior to issuance of Section 6 notification, permission was
granted for putting up petrol pump on the said land and the
permission notes 'No Objection Certificate' received from Mira-
Bhayandar Mahanagar Palika and order of 12th November, 2003
permitting the use of land for non-agricultural purpose. The location of
Survey No. 144 in 'no development zone' therefore, loses its
significance. The Special Land Acquisition Officer had granted
compensation of Rs. 3,000/- per sq. metre to Survey No. 101 which is
located adjacent to Survey No. 144 and in fact, is shown as hilly area
whereas Survey No. 144 was even land having road connectivity and
close to the highway and as accessible as Survey No. 101. The State
Government has failed to produce any evidence on record to
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demonstrate that Survey No. 101 was a fully developed land, whereas
Survey No. 144 was undeveloped land and therefore, the acquiring
body was required to expend developmental cost for the development
of the said land.
28. Reliance placed by learned AGP on the evidence of Claimant that
the property was situated in Gram Panchayat holds true for both
Survey No. 101 and Survey No. 144. As far as the evidence as regards
the amount spent for earth filling of the said land is concerned, the
same could not be taken into consideration for reducing the market
value of Survey No. 144 particularly, when Survey No. 101 was a hilly
area and in fact, would require greater development cost than Survey
No. 144. Survey No. 101 was granted N.A. permission, as also Survey
No. 144 within two months of issuance of notification, which showed
that both lands had N.A. potentiality, and therefore, the Reference
Court could not have deducted one-third of the value awarded to
Survey No. 101 by differentiating the same on the basis that Survey No.
101 was developed particularly, when there is no evidence brought on
record by the Respondent to show that Survey No. 101 was fully
developed with all required infrastructure in place.
29. The Claimant is therefore, entitled to same compensation as
awarded to Survey No. 101, i.e. of 3,000/- per sq. metre along with all
statutory benefits. For the purpose of demonstrating that he is
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entitled to an enhanced compensation of Rs. 5,000/-, the evidence
brought on record by the original Claimant is not sufficient.
Accordingly, Point Nos. (i) and (ii) are accordingly answered.
Resultantly, following order is passed:-
:ORDER:
[i] First Appeal No. 607 of 2021 is allowed and Clause 2
of the impugned order of Reference Court is modified to read
as under:-
"the Respondent to pay the enhanced
compensation at the rate of Rs. 3,000/- per
sq. metre in respect of suit property bearing
Survey No. 144 (Part) for area of 2,980 sq.
metres at Village - Chene, Taluka and District
- Thane after deducting the compensation
already paid to the petitioner."
[ii] First Appeal No. 799 of 2018 filed by the State
Government stands dismissed.
30. In view of disposal of First Appeals, nothing survives for
consideration in pending Interim/Civil Applications, if any, and the
same stand disposed of.
[Sharmila U. Deshmukh, J.]
Sairaj 20 of 20
