Bombay High Court
Anant Vishnu Vartak vs Downloaded On - 09/06/2013 16:11:49 on 23 July, 2010
Bench: A.M.Khanwilkar, A.A.Sayed
1 FA.1033.03.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1033 OF 2003
1. Anant Vishnu Vartak,
Age 67 years, Occ.Business,
Resident of 520, Shaniwar Peth,
Pune-411 030.
2. Smt. Usha Sharadchandra Vartak,
Age 72 yrs., Occ. Household,
Resident of 259, Shaniwar Peth,
Pune- 411 030.
3. Arvind Sharadchandra Vartak,
Age 54 yrs., Occu. Business,
Resident of 259, Shaniwar Peth,
Pune-411 030.
4. Ramesh Sharadchandra Vartak,
Age 50 yrs., Occu. Business,
Resident of 259, Shaniwar Peth,
Pune-411 030.
5. Miss Suvarna Sharadchandra Vartak,
Age 37 yrs., Occu. Student,
Resident of 259, Shaniwar Peth,
Pune-411 030.
Nos.2 to 5 heirs and legal representatives
of Shri Sharadchandra Vishnu Vartak.
6.Smt.Leelabai Vasant Vartak, ...Appellants
Age 74 yrs., Occu.Business, (No.1 & 6 Ori.Claimants,
Resident of 520, Shaniwar Peth, Nos.2 to 5 - heirs & L.Rs.
Pune - 400 030. of Claimant No.2)
Versus
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1. Special Land Acquisition Officer,
(Spl) Unit No.1, Pimpri,
Pune-411 018.
2. Pimpri-Chinchwad Municipal Corporation,
by its Commissioner, having its office at
Pimpri, Pune-411 018.
3. State of Maharashtra, ...Respondents
through Collector, Pune. (Ori.Opponents)
WITH
FIRST APPEAL NO.26 OF 1996
Shri Gajanan Shridhar Pundale,
since deceased through legal heirs
and representatives:
Shri Pramod Gajanan Pundale,
aged 52 years, residing at 497 Narayan Peth,
Pune-411 030 (Amendment carried out
as per Court's order dated 9.2.2009 ...Appellant
passed in Civil Application No.636/2009) (Ori.Claimant-1)
Versus
The State of Maharashtra,
at the instance of the Special Land Acquisition
Officer, Special Unit No.1, Pimpri,
Pune-411 018.
2.Pimpri Chinchwad Municipal Corporation, ...Respondents
Pimpri, Pune-411 018. (Ori.Opponents)
Notice to be served on Pimpri Chinchwad
Municipal Corporation, Pune 411 018.
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3.Shri Madhavrao Marutrao Dhadge,
since deceased through his heirs
and legal representatives :
(a) Shri Pravin Madhavrao Dhadge,
aged about 43 years, occupation Business.
(b) Shri Manoj Madhavrao Dhadge, ...Respondents
aged about 40 years, occupation Business. (Ori.Opponents)
Both residing at Flat No.173, Budhwar Peth,
Pune-411 002.
......
Mr.P.S.Dani with Mr.Devidas H.Keluskar for Appellants in FA/1033/2003.
Mr.S.M.Gorwadkar with Mr.S.M.Sabrad for Appellants in FA/26/1996.
Mrs.G.P.Mulekar, A.G.P. for Respondent No.1 in both Appeals.
Mr.P.K.Dhakephalkar with Mr.S.R.Ganbavale for Respondent No.2 in both
Appeals.
Mr.P.B.Shah for Respondents 3(a) & 3(b).
......
CORAM:- A.M.KHANWILKAR AND
A.A.SAYED, JJ.
DATED:- JULY 23, 2010.
P.C.
1. Both these Appeals can be disposed of by common Judgment, as the controversy to be addressed is emanating from the common Notification issued to acquire the subject land. The Appeal No.1033 of 2003 is filed by the one set of claimants who had held land admeasuring 8311.37 sq.mtrs.
::: Downloaded on - 09/06/2013 16:11:49 :::4 FA.1033.03.sxw known as `Vartaks'. The Appeal No.26 of 1996 has been filed by the other set of claimants in relation to land admeasuring 9511.38 sq.mtrs., known as `Pundales'. Their land was in possession of the occupants/tenants known as `Dhadges'.
2. The Development Plan for the City of the then Pimpri Chinchwad Municipal Council was sanctioned on 17th March 1978. As per the said sanctioned Development Plan, the land in question bearing CTS No. 3608(p) (Plot No.195p) of Village Chinchwad was shown as reserved for childrens' playground. The said land is admeasuring 17822.75 sq.mtrs. As aforesaid, part of the said land is owned by Vartaks admeasuring about 8311.37 sq.mtrs. and the other part by Pundales admeasuring 9511.38 sq.mtrs. The land owned by Pundales was in occupation of tenants Dhadges. The then Chief Officer, Pimpri Chinchwad Municipal Council requested the Collector of Pune to initiate land acquisition proceedings in respect of the above said land admeasuring 17822.75 sq.mrs. Consequent to the said request, Notification under Section 126 of the Maharashtra Regional Town Planning Act, 1966 r/w Section 6 of the Land Acquisition Act, 1894 came to be issued on 19th January 1984. Thereafter, inquiry regarding acquisition of the subject land was commenced. In the said ::: Downloaded on - 09/06/2013 16:11:49 ::: 5 FA.1033.03.sxw inquiry, the claimants appeared and demanded compensation for the said land at the rate of Rs.269/- per sq.mtr. In support of their claim, they relied on sale instances pertaining to plots in the nearby localities. The Land Acquisition Officer after considering the evidence in support of the claim and the relevant sale instances which, in his opinion, were comparable sale instances, proceeded to determine fair market price of the said land vide award dated 12th May 1986. In the said Award, reference is made to the two sale instances relied upon by Vartaks - one of the claimants. The first was pertaining to Survey No.195/196, Plot No.61, admeasuring 320 sq.mtrs. The said land was sold for Rs.30,000/- i.e. at Rs.93.75 per sq.mtr.
on 31st August 1983. The second instance pertains to Survey No.195/1 bearing Plot No.58, admeasuring 294 sq.mtrs. This land was sold for Rs.
30,000/- at the rate of Rs.102 per sq.mtr. on 3rd August 1983. While considering the valuation of the property, the SLAO has also adverted to other six sale instances, namely:-
(i) S.No.195-196 of Chinchwad, Plot No.67 admeasuring (1200 sq.ft.) 308 Sq.Mtrs. has been sold on 15-3-79 at the rate of Rs.32.46 per sq.mtrs.
(ii)S.No.164-165 of Chinchwad Plot No. admeasuring 464.68 Sq.mtrs. has been sold on 16-11-81 at the rate of Rs.26.90 per sq.mtrs.
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(iii) S.No.195-196, plot No.155 having an area of (3000 sq.ft.) 280.67 Sq.mtrs. was sold on 1-4-82 at the rate of 61-85 per sq.mtrs.
(iv) S.No.195-196 plot No.57 having an area of (2046 sq.ft.) 194 Sq.Mtrs. was sold on 10-6-83 at the rate of Rs.82/- per sq.mtr.
(v) S.No.195-196 Plot No.87 admeasuring 195 Sq.Mtrs. (2046 sq.ft.) was sold on at the rate of Rs.82/- per sq.mtr. on 31-12-83.
(vi) S.No.195-196 plot No.99 admeasuring 195 Sq.Mtrs. (2046 Sq.ft.) was sold on 14-9-84 at the rate of Rs.87/- per sq.mtr.
3. After having adverted to all these sale instances, the SLAO proceeded to hold that the comparable sale instances were building plots and forming part of sanctioned layouts having roads and other facilities.
Besides, the area was of small size ranging between 195 to 300 sq.mtrs.
Whereas, the area under acquisition was 17822.75 sq.mtrs. The SLAO then applied hypothetical plotting scheme to arrive at fair market price of the land under consideration. Considering the above mentioned sale instances it was found that the sale price was ranging between Rs.32.46 to Rs.87/- per sq.mtr. during the relevant period. The Agreements in respect of the said sale were generally executed between span of 1½ to two years prior to the date of acquisition. Taking overall view of the matter, the SLAO assumed ::: Downloaded on - 09/06/2013 16:11:49 ::: 7 FA.1033.03.sxw the hypothetical plotting scheme rate in respect of the land under consideration at Rs.100/- per sq.mtr. on the net building plot. After having arrived at the said opinion, he then proceeded to provide for deduction towards road and open space of about 25% of the total plot area. On providing the said deduction, the SLAO arrived at the net plot saleable area as 13367 sq.mtrs. only (i.e. 17822.75 - 4435.68). The SLAO then applied the assumed fair market price in respect of the said land at Rs. 100/- per sq.mtr. to the said net saleable plot area and computed the total market value payable in respect of the said land at Rs.12,36,707/-. Thereafter the SLAO provided for further deduction at the rate of 7% per annum on the assumption that for selling the 50 plots of 250 sq.mtrs. to be formed out of the land in question, it would take at least two years to complete the sale of the said plot. In other words, deduction towards deferred value has been provided at 7% per annum period on two years by applying the ratio of 0.8734. After providing for the said deduction, the deferred value of the plot in question has been arrived at Rs.11,67,479.90. The SLAO then provided for further deduction towards cost of development of road, water supply and electricity, etc. of lump sum amount of Rs.1,50,000/-; towards Architect's fees, legal charges, etc. at 5% being Rs.58,374/-; and further Developer's profit at 15% of the gross proceeds being Rs.2,00,506/-. This ::: Downloaded on - 09/06/2013 16:11:49 ::: 8 FA.1033.03.sxw additional deductions are provided for the entire plot, the aggregate amount whereof works out at Rs.4,08,880.05. After providing for the above said deductions, the SLAO arrived at the net fair market value of the land in question and the overall rate thereof at Rs.43/- per sq.mtr.
4. The SLAO then proceeded to examine the claim of Pundales in respect of land owned by them admeasuring 9511.38 sq.mtrs. It is noticed that the said land was encroached upon by unauthorised hutment dwellers, about 340 in number. Besides, Dhadges claimed to be in occupation of the said land as tenants. Considering the said encumbrances, the SLAO provided for deduction of further amount of Rs.8/- per sq.mtr. in relation to the land owned by Pundales. On that basis, the fair market price of the land owned by Pundales has been arrived at Rs.35/- per sq.mtr. Insofar as the land belonging to Pundales, the SLAO has recorded the joint statement of the Pundales and Dhadges that they would apportion the compensation amount in the ratio of 60 : 40. On the basis of the said statement, the amount payable to the land belonging to Pundales has been apportioned between the Pundales and Dhadges. The SLAO, however, has declined to grant any compensation to the hutment dwellers on the finding that the permanent structures and other temporary structures standing on the subject ::: Downloaded on - 09/06/2013 16:11:49 ::: 9 FA.1033.03.sxw land were unauthorised, for which reason, they were not entitled to any compensation. On the above basis, the award came to be passed by the SLAO. On arriving at the fair market value of the land held by the respective owners, the SLAO then provided for 12% interest on the market value from the date of Section 6 Notification to the date of declaration of award i.e. 12th May 1986.
5. This common award was put in issue by the claimants by instituting Reference under Section 18 of the Land Acquisition Act. The Reference filed by Pundales and Dhadges was numbered as Reference No.230/1986.
Whereas, the Reference instituted by Vartaks was numbered as Land Reference No.313 of 1987. Both these land References were tried separately.
6. Insofar as the Reference instituted by the owners Pundales and occupants/tenants Dhadges, the claimants not only produced documentary evidence but also examined witnesses in support of their claim. The claimants examined in all five witnesses. Whereas, the State examined in all four witnesses. The Reference Court on analysing the said evidence, in the first place, rejected the plea of the State that the Reference filed by the ::: Downloaded on - 09/06/2013 16:11:49 ::: 10 FA.1033.03.sxw claimants was barred by limitation. It then proceeded to reject the plea of the State to give nominal compensation of only Rs.1/- to the owners as vacant possession of the land could not be obtained as the land was in possession of the unauthorised occupants. The Reference Court has then adverted to the evidence of the expert examined by the claimants Mr.Gangadhar Dattatraya Karkare who has deposed that after providing for reasonable deductions, the fair market price of the land irrespective of occupation by unauthorised structures can be arrived at, at Rs.105/-. The Reference Court, however has rejected the claim of the claimants on the finding that the instances relied upon by the claimants was in respect of small plot transactions of sanctioned lay out plan. The Reference Court has then opined that the claimants have failed to produce any evidence regarding the cost involved in evicting the hutment dwellers. There were about 340 slum dwellers occupying the plot since 1976. The Reference Court has also taken note of the decision of the Apex Court in the case of Kumari Veeraias & Ors. v. State of A.P. reported in 1995 (4) SCC 136.
On this reasoning, the Reference filed by the claimants (Pundales) Dhadges came to be rejected on 14th September 1995.
7. In the Reference by Vartaks, besides relying on documentary ::: Downloaded on - 09/06/2013 16:11:49 ::: 11 FA.1033.03.sxw evidence also examined five witnesses in support of their claim that the SLAO committed manifest error in arriving at the market value at the rate of Rs.43/- only. Whereas, he ought to have determined the market value of the said land at the rate claimed by them of Rs.269/- per sq.mtr.
Significantly, before the Reference Court, the Vartaks (claimants) relied on sale instance in respect of Plot No.119 which was sold on 12th October 1984 at the rate of Rs.141.26 per sq.mtrs. (Exhibit 79). Besides producing the certified copy of the Sale Deed dated 12th October 1984 in respect of the said plot which was admeasuring 283.17 sq.mtrs., the claimants (Vartaks) caused to examine Vaishali Shashikant Sane to prove the said Sale Deed. The said Vaishali Sane had sold the said plot in favour of Mr.Parshuram Dhondu Kadam and Mr.Shankar Govind Jadhav. However, the Reference Court has discarded this sale instance on the finding that the claimants failed to produce copy of the Agreement for Sale on the basis of which the Sale Deed was executed. Besides, the sale was after a period of ten months. In addition, the Reference Court negatived the claim of the claimants on the finding that the sale instances which were relied by the claimants were in respect of small plots whereas, the plot under acquisition was around 17822.75 sq.mtrs. The Reference Court further found that the method adopted by the SLAO was not arbitrary or improper. The ::: Downloaded on - 09/06/2013 16:11:49 ::: 12 FA.1033.03.sxw Reference Court also took notice of the fact that inspite of the deficiencies in the sale instance pressed into service by the claimants, the SLAO assumed the fair market price in relation to the land under acquisition at the rate of Rs.100/- per sq.mtr. While reverting to the sale instance Exhibit 79, the Reference Court has opined that the same cannot be reckoned, as it was post Notification. The Reference Court then upheld the deductions provided for by the SLAO as permissible and reasonable ones. The Reference Court has adverted to the decision of the Apex Court in the case of K.S.Shivadevamma & Ors. v. Assistant Commissioner & Land Acquisition Officer & Anr. Reported in (1996) 2 SCC 62. The Reference Court has also noticed that although the SLAO has provided for deduction of 25% towards road and open space and reduced that area to arrive at the net saleable plot area, but has multiplied the rate determined by it with the total area of the plot i.e. 17822.75 sq.mtrs. At the end, the Reference Court has also noticed that the Reference filed by the neighbouring land owners (Pundales) pertaining to the same Notification has already been rejected.
Taking overall view of the matter, the Reference Court proceeded to dismiss the Reference Application filed by the claimants (Vartaks) for enhancement of the compensation on 3rd August 2001.
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8. As aforesaid, Reference filed by Pundales was rejected in earlier point of time. As a result, the said Pundales and Dhadges filed Appeals in this Court against the said decision in 1996 which were numbered as First Appeal No.26 of 1996. Whereas, Dhadges filed separate Appeal being First Appeal No.425 of 1998. However, the said Appeal has been subsequently withdrawn by the said Dhadges. With the result, we are left only with the Appeal of Pundales and the other Appeal subsequently filed by Vartak after the decision of the Reference Court in their reference which has been numbered as First Appeal No.1033 of 2003.
9. We have heard Counsel appearing for the claimants as well as the acquiring Authority. With the assistance of the Counsel appearing for the parties, we have waded through the evidence in the respective Appeals which was produced by the claimants in the Reference filed by them separately. We have thought it appropriate to dispose of both the Appeals together by this common Judgment as we find that the matter in issue to be answered will be overlapping, as it arises out of common Notification in respect of one consolidated plot of 17822.75 sq.mtrs. which incidentally was owned by two owners Vartaks and Pundales. The Vartaks owned ::: Downloaded on - 09/06/2013 16:11:49 ::: 14 FA.1033.03.sxw portion of the said plot admeasuring 8311.37 sq.mtrs.; whereas, Pundales owned the other portion of the same plot admeasuring 9511.38 sq.mtrs. We are fortified in adopting this approach, considering the exposition of the Apex Court in the case of Attar Singh v. Union of India & Anr. reported in (2009) 9 SCC 289. In Paragraph 17 of the said decision, the Apex Court, in essence, has opined that the claimants pertaining to common Notification should not be treated differently. We are conscious of the fact that separate evidence has been adduced by the parties in the respective Reference Applications but while answering both the Appeals, we would analyse the evidence of both the References to arrive at one common conclusion to obviate any conflicting opinion in respect of the market price or any other incidental issue relating to the compensation payable to the respective claimants.
10. After having considered the submissions in both the Appeals and perusing the material on record, in our opinion, the following points may arise for our determination.
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POINTS FINDINGS
(1) Whether the method adopted by the SLAO for Yes.
determination of fair market price of the acquired
land is just and proper?
(2) Whether the post sale instance can be discarded in No. But for reasons
recorded, it would not
toto as has been done by the Reference Court?
affect the conclusion.
(3) Whether the fair market price determined in Yes
respect of land under acquisition by the SLAO and
confirmed by the Reference Court is just and
proper?
(4) Whether the deductions provided for by the SLAO Yes
and as upheld by the Reference Court can be said
to be permissible and just and proper?
(5) What order?
POINT NO.1 :
11. As is noticed earlier, the SLAO has considered the sale instances which had come on record for arriving at fair market price of the acquired land. Although the SLAO has noticed that the sale price in respect of the instances relied upon by the claimants or the other sale instances was ranging only between Rs.32/- to Rs.87/- for different period and that price ::: Downloaded on - 09/06/2013 16:11:49 ::: 16 FA.1033.03.sxw was offered in respect of small building plot, has yet fixed the fair market price in respect of the land under acquisition at Rs.100/- per sq.mtr. for the net buildable plot. The SLAO has adverted to total eight sale instances to record the said finding. Insofar as the description of the sale instance given by the SLAO in the Award, the correctness thereof is not in dispute. The area of plot, the date of sale as well as the average price per sq.mtr. of the respective transaction as stated in Paragraphs 6 and 7 of the Award are not challenged before us. As is noticed by the SLAO, the value of the land in the concerned transaction varied between Rs.32.46 to Rs.87/- per sq.mtr.
The value of Rs.87/- per sq.mtr. was as recent as of September 1984 i.e. nine months post Notification. The SLAO discarded the sale instances relied by the claimants (Vartaks) in respect of Plot No.61 and Plot No.58 on the finding that the same were slightly higher rates in comparison to the sale instances at Serial Nos.7 and 8 which was only for Rs.82/- and Rs.87/-
per sq.mtr. respectively. In substance, the SLAO has adopted the method of comparable sale instances to conclude that at best, the claimants would be entitled for price of Rs.100 /- per sq.mtr. for the net building plot.
12. The claimants on the other hand argued that the method that ought to have been applied by the SLAO should have been that of a belting system.
::: Downloaded on - 09/06/2013 16:11:50 :::17 FA.1033.03.sxw According to the claimants, they have led evidence of expert witnesses who have deposed about the efficacy of belting system to arrive at fair market value of the land under acquisition. Our attention was invited to the experts' evidence in both the References. In Reference instituted by the Vartaks, they examined Mr.Upendra Waman Dhongade (PW 2) as expert witness who has spoken about the methodology of belting system and how it could have been applied to the fact situation of the present case. Insofar as Reference filed by Pundales, they examined Gangadhar Dattatraya Karkare, P.W.5 as expert witness. The evidence given by both these experts in the respective References more or less proceeds broadly on the same basis.
Both these experts have deposed that the appropriate method for valuation of the property would have been belting system. In their evidence they have stated that the sale instances which have come on record, could be taken as the basis for determining the value of the land under acquisition.
Considering the location of each of this sale instance, the same were falling at best within the third belt. Whereas, the land under acquisition ought to be reckoned as falling within Belt No.1 and Belt No.2. On that assumption, the said witnesses have deposed that the price in respect of the land under acquisition would be superior to that of the price received in respect of the comparable sale instances. According to the expert witness examined by ::: Downloaded on - 09/06/2013 16:11:50 ::: 18 FA.1033.03.sxw the Vartaks, the hypothetical plots which would be facing the Development Plan (DP) Road would fetch higher value to the extent of Rs.200/- per sq.mtr. whereas, the plots which were on the rear side, would fall in Belt No.2 and fetch around Rs.170/- per sq.mtr. Whereas, the expert witness examined by Pundale has claimed that the land under acquisition should fetch rate of at least Rs.250/- per sq.mtr. as it would be in Belt No.1.
However, it is also noticed that the said witness has then provided for deductions including in respect of the unauthorised structures standing on the portion of the suit land reducing the potentials thereof and for which reason the price would be around Rs.105/- per sq.mtr. Even the expert witness examined by Vartaks has advocated for providing reasonable deductions on the same lines.
13. In the first place, the question is: whether the assumption of the two expert witnesses examined in the respective References that the only appropriate method to be applied for considering the fair market price of the land would have been Belting System, is correct. Our attention has been invited to the Manual of Land Acquisition for State of Maharashtra.
Paragraph 174 thereof deals with valuation of the land by Belting. It mentions that in cases where large holdings having frontage on road and ::: Downloaded on - 09/06/2013 16:11:50 ::: 19 FA.1033.03.sxw large depth are required to be valued and the evidence of land value of only small building plots with frontage on the same or similar road is available question is not so simple. In such cases, value by method of Belting is resorted to. It is further noted that the Belting method is applicable to N.A. lands or lands having N.A. potentials. Further, the value of belt having frontage of the road would be higher. This Manual also provides that the belting method should be worked out by keeping in mind the depth of belt and the values of belt.
14. We find that the assertion of the expert witnesses that belting method is the only method for determination of fair market price of the land under acquisition, is untenable. That plea of the claimants will have to be rejected. We say so because the expert witnesses have assumed that the land in question is a very "large tract" of land. Whereas, the depth of the plot belonging to Vartaks as shown in the map is only 75 mtrs. Further, it is not in dispute and has been accepted by the two witnesses that the frontage of both the plots either belonging to Vartaks and Pundales is towards existing DP road. At the relevant time, the said DP road was only around 33 feet wide which as per the Development Plan, was to be widened to 60 feet wide road. In other words, on the date when the Notification was ::: Downloaded on - 09/06/2013 16:11:50 ::: 20 FA.1033.03.sxw issued, the width of the DP Road was not 60 feet as assumed. In fact, it was not more than 35 feet. At the same time, it is noticed that the DP road also passes along with the southern side of the plot owned by Vartaks which has been shown as 40 feet wide road. Admittedly, the location of plot is such that it has the frontage of DP road from two sides. Besides, the neighbouring land in respect of which layout plan has already been sanctioned in 1975, belongs to the said Claimants Vartaks and Pundales.
The land under acquisition could be developed in the same way, but for the reservation shown in the sanctioned DP Plan. It is noticed that the sale instances relied by SLAO are from sanctioned lay out. The same is in the neighbourhood of the land under acquisition. Further, even the said plots (sale instances) were similarly located and having frontage of colony road of 40 feet. In any case, what is intriguing is that the expert examined by the Vartaks had assumed the market price in respect of the hypothetical plots shown in map Exhibit `C' being Plot Nos.1, 2 and 3 at Rs.170/- whereas for Plot Nos.4 to 7 at Rs.200/- per sq.mtrs. The basis on which such distinction has been made is untenable. On the other hand, we find that Plot Nos.1, 2 and 3 as shown in the plan at Exhibit `C' of the paper book, even those plots are facing the 40 feet wide DP road. The other plots referred to in the same plan are facing proposed 60' wide DP road (presently, 33 feet wide ::: Downloaded on - 09/06/2013 16:11:50 ::: 21 FA.1033.03.sxw DP road). Considering the location of the land in question, it is not possible to take the view that any portion of the plot can be treated as rear portion as such so as to justify application of belting system. Moreover, the land under acquisition is only around 17822.75 sq.mtrs. The Manual on which emphasis has been placed by the Counsel for the claimants also makes it clear that the principles referred to therein cannot be regarded as hard and fast rule. In the present case, the depth of the plot is only 75 mtrs. It is not a case of large depth of the plot. Besides, the location of the land under acquisition had proximity to DP roads from two different points. Further, if the plot were to be developed as is sought to be projected, the plans recommended by the expert witness itself makes enough provision for Colony road which is also 40' wide road. If so, there can be hardly any distinction between the potentials of the plots as each plot would have frontage either of DP road or of the Colony road.
15. Understood thus, we find no infirmity in the method applied by the SLAO of considering the comparable sale instances as the benchmark for arriving at the fair market price of the land under acquisition. It is not as if as a general rule, the land even though it has width or depth of only 75 sq.mtrs. and having frontage of DP Road from two sides should be still ::: Downloaded on - 09/06/2013 16:11:50 ::: 22 FA.1033.03.sxw assessed under belting system, as is sought to be contended. Reliance was placed on the decision of the Apex Court in Mathura Prosad Rajgharia & Ors. v. State of West Bengal reported in AIR 1971 SC 465. This Judgment has been pressed into service on two propositions. Firstly, as to what is the meaning of word `disposition'. In Paragraph 11 of the said decision, the Apex Court has expounded that the word `disposition' means how the land could be disposed of at that time. It does not mean the existing use of the land but means its disposing power "with the arrangement as it was on that date". It has further observed that the market value has to be arrived at keeping in mind the disposition of the land which would mean the value of the land in a hypothetical market which a willing purchaser may, in the prevailing conditions pay for the land to a willing vendor, taking into consideration its situation and advantages. This decision is also pressed into service to persuade us that method of belting system would have been the most appropriate method to be applied to the case on hand. In Paragraph 12 of this decision, the Apex Court has noticed that when a large area of land in an urban locality is sought to be acquired in determining the market value, "the method of belting" is appropriate. This dictum will have to be understood in the context of the fact situation of that case. However, this decision does not postulate that method of belting is the only method to ::: Downloaded on - 09/06/2013 16:11:50 ::: 23 FA.1033.03.sxw be applied in relation to acquisition of land in urban locality. Further, in that case, the area of land which was acquired was admeasuring 39 bighas and 19 cottahs (63,980 sq.yards). Considering the large tract of area under acquisition in that case, the Apex Court approved application of belting system. Thus, the area of the land which was under acquisition dealt with by the Supreme Court was almost four times bigger than the land under acquisition. Besides, as noticed earlier, expert witnesses examined by the claimants have conceded that the land was accessible from two different DP roads on the western and southern side respectively and the depth of the plot on the southern side was only around 75 mtrs. In our opinion, therefore, no fault can be found with the method applied by the Land Acquisition Officer of comparable sale instances for determining the fair market price of the land under acquisition.
16. We may incidentally point out that expert witnesses as well as the claimants have admitted that high tension line passes through the land under acquisition which cuts across the land from Plot No.13 and travels through Plot No.11 as shown in the map at annexure `C' of the Appeal paper book. The evidence on record clearly suggests that no construction activity is possible below the high tension line and minimum of three meters on both the sides of the high tension line should be free from any ::: Downloaded on - 09/06/2013 16:11:50 ::: 24 FA.1033.03.sxw construction. In other words, around over 450 sq.mtrs. of plot would be undevelopable as no construction would be permissible on 75 mtrs. x six meters area of the land on account of passing of high tension line. Even though this aspect has been noticed by the expert witnesses as also the two authorities below, no deduction has been provided while computing the compensation amount payable to the claimants.
17. Be that as it may, as observed earlier, we find no infirmity in the method adopted by the SLAO while computing the market price in respect of the land under acquisition. On this finding, the next question that needs to be addressed is about the quantum arrived at by the Land Acquisition Officer for determining the fair market price in respect of the land under acquisition.
POINT NO.2 and 3 :
18. As is noticed earlier, the SLAO has analyzed eight sale instances for determining the fair market price in respect of the land under acquisition at Rs.100/- per sq.mtr. He has discarded the two sale instances relied upon by the claimants on the reasoning that the rates mentioned in the said two sale instances were slightly higher rates in comparison to the other sale ::: Downloaded on - 09/06/2013 16:11:50 ::: 25 FA.1033.03.sxw instances during the same period in 1983. The SLAO has noticed that even after the Notification for acquisition was issued, the sale instance No.8, the market rate was around Rs.87/- per sq.mtr. which transaction was effected on 14th September 1984. Even then, the SLAO has assumed the market price at Rs.100/- per square meter. Before the Reference Court in the Reference filed by Vartaks, amongst others, they relied on the sale instance of Plot No.119 from Survey No.195 which was sold by one Vaishali Sane in favour of Mr.Jadhav and Mr.Kadam by registered Sale Deed dated 12th October 1984 Exhibit 79. The certified copy of the said Sale Deed was produced before the Reference Court. In addition, the claimants examined the owner of the said plot Vaishali Sane as their witness. However, the Reference Court has discarded the said sale instance essentially on three counts. Firstly, that the claimants failed to produce Agreement of Sale on the basis of which the Sale Deed was executed. Secondly, the said Sale was after ten months from the date of Notification for acquisition dated 19th January 1984. Thirdly, the plot referred to in the said sale instance was a small plot of only 283 sq. mtrs.
19. Insofar as the first reason which has weighed with the Reference Court to discard this sale instance is concerned, the fact that Agreement to ::: Downloaded on - 09/06/2013 16:11:50 ::: 26 FA.1033.03.sxw Sale was not produced by the claimants, would not militate against the claimants in the fact situation of the present case. That is so because the certified copy of the registered Sale Deed (Exhibit 79) restates the position that Agreement to Sale was executed between the owner and the purchaser on 3rd May 1984. The owners had received part consideration of Rs.
20,000/- and the balance amount of Rs.20,000/- was being received on the execution of the Sale Deed on 12th October 1984. In this view of the matter, there was hardly any reason to doubt the veracity of the execution of the said Sale Deed and the terms specified therein. Having regard to the fact that the claimants had produced certified copy of the Sale Deed and considering the expansive provision contained in Section 51-A of the Land Acquisition Act, the Court had no option but to accept the said Sale Deed as evidence of the transaction recorded therein. We may usefully refer to the decision of the Constitution Bench of the Apex Court in the case of Cement Corporation of India Ltd. v. Purya reported in AIR 2004 SC 4830. The Constitution Bench of the Apex Court has authoritatively answered the issue regarding the efficacy of Section 51A of the Act. It has held that upon production of certified copy of the Sale Deed, its admissibility in evidence would be beyond any question. In Paragraph 35 of the same decision, the Court has opined that the registered document in terms of Section 51-A of ::: Downloaded on - 09/06/2013 16:11:50 ::: 27 FA.1033.03.sxw the Act may carry therewith a presumption of genuineness. Such a presumption, therefore, is rebuttable. Suffice it to observe that the issue regarding admissibility of a certified copy of the Sale Deed has now been finally resolved by this decision. In the present case, it is not in dispute that the claimants produced the Sale Deed dated 12th October 1984 which has been marked as Exhibit 79. In any case, the claimants have examined the owner of the said plot Vaishali Sane as PW 3 who has deposed about the said transaction and proved the sale.
20. The second reason which weighed with the Reference Court to discard this sale instance is that it pertains to post acquisition period, in that, the notice for acquisition was issued on 19th January 1984 whereas, the Sale Deed was dated 12th October 1984. In the context of this opinion, Counsel for the Claimants (Vartaks) have relied on the exposition of the Apex Court in the case of Mehta Ravindrarai Ajitrai (deceased by L.Rs.) & Ors. v.
State of Gujarat reported in AIR 1989 SC 2051. The main instance relied upon by the claimants in that case was in respect of sale which was post Notification. The High Court rejected the said instance not only on the ground that it was not duly proved but additionally because the same was post Notification. While dealing with this aspect, the Apex Court in ::: Downloaded on - 09/06/2013 16:11:50 ::: 28 FA.1033.03.sxw Paragraph 4 observed as follows:
"There is, however, nothing in the evidence to show that there was any sharp or speculative rise in the price of the land after the acquisition and this has been noticed by the High Court. It appears that under these circumstances the High Court was not justified in not taking this instance into account at all as it has done on the ground that it was a post acquisition sale and could not be regarded as a comparable instances at all."
21. The principle stated by the Apex Court is that so long as the sale instance is a bonafide one and does not suffer from sharp or speculative rise, merely because the sale instance is post Notification, it cannot be discarded in toto. Even in the case of Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona & Anr. Reported in AIR 1988 SC 1652, broad contours to be kept in mind while determining the market price have been laid down. One of the factors referred to in Clause (9) in Paragraph 4 of the said decision is regarding the efficacy of post Notification instance. The Court went on to observe as follows:
"Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects."
22. In the present case, it cannot be disputed that the post Notification instance vide Sale Deed dated 12th October 1984 is in close proximity to the ::: Downloaded on - 09/06/2013 16:11:50 ::: 29 FA.1033.03.sxw Notification. In that, the Notification was issued on 19th January 1984 wheres, the Agreement to Sale was arrived at between the owner Vaishali Sane in favour of Mr.Jadhav and Mr.Kadam on 3rd May 1984 and eventually the registered Sale Deed was executed on 12th October 1984. The genuineness of the said transaction also cannot be doubted. As a matter of fact, besides producing the certified copy of the said Sale Deed, the Claimants (Vartaks) have also examined Vaishali Sane as their witness. She has deposed about the correctness and genuineness of the said transaction.
The question is: whether the land price mentioned in the said Sale Deed was motivated due to the Notification. Indeed, suggestion in this behalf has been given by the State to this witness, which however has been denied.
Suffice it to observe that merely because the sale instance is post Notification, that by itself, does not militate against the claimant nor can be the sole basis to discard the same. We shall presently consider the efficacy of the said sale instance.
23. The third reason noticed by the Reference Court to discard this sale instance Exhibit 79 is on account of the smallness of the plot. The area of the plot which was sold by the said Sale Deed was only around 283 sq.mtrs.
as compared to the land under acquisition admeasuring around 17822.75 ::: Downloaded on - 09/06/2013 16:11:50 ::: 30 FA.1033.03.sxw sq.mtrs. Insofar as this reason is concerned, it is not possible to ignore the same. That is a relevant consideration for determining the fair market price of the land under acquisition. In addition, we find that the owner of the plot which was subject matter of the Sale Deed Exhibit 79, has been cross examined. During cross examination, it has come on record that she had purchased the said plot on 2nd November 1982 from Indumati Ketkar for Rs.
20,000/- only at the rate of Rs.95.34 per sq.mtr. She has admitted that she purchased the plot as she was in need to purchase the same. At the relevant time, the prevailing market rate, it is stated by her, was Rs.6/- to Rs.7/- per sq.ft. which was told to her by the Estate Agents and also during the inquiry with the Sub-Registrar's Office. However, she was unable to give the details as to why and with whom such inquiry was made by her. What is relevant for our purpose is her evidence in Paragraphs 3 and 4. The relevant portion of the said evidence reads thus:
"3. The said plot was situated nearby to railway line in Chinchwad. It is true, it was a developed plot. It is true that it was in posh locality. It is true, school, colleges, busstop, railway station and market were nearby to that plot. It is true, at that time there was no hutmate in the vicinity of plot. It is not true that since were dire need of plot, it was purchased without making any enquiry.
4. When we purchased the plot, we were not having any need to retain or construct the plot, but the purchaser was in need of it. It is not true that Mr.Kadam and Mr.Jadhav were in dire need of plot and so they purchased by making excessive payment. It is true, there was due negotiations between ::: Downloaded on - 09/06/2013 16:11:50 :::
31 FA.1033.03.sxw us. It is not true that the market rate mentioned in Ex.79 is not true and it is mentioned approximately. It is not true that, when I sold our plot, construction work started in adjoining plots. According to me there was increase in rate as buyers were more than the sellers."
24. It is seen that she has admitted the special features of Plot No.119 which was the basis for getting good returns by resale thereof. The special reasons which have already come on record during the cross examination of this witness leave no manner of doubt that the said Plot No.119 is an incomparable instance for determination of the fair market price of the land in question. In other words, even if we were to reverse the opinion recorded by the Reference Court of having wrongly discarded this sale instance on the specious ground that it is post Notification, for the reasons noted hitherto, this sale instance cannot be of any avail for determining the fair market price in respect of the land under acquisition. If this sale instance were to be ignored, then the only other sale instance which is on record, the maximum amount fetched by sale of plot No.58, is of Rs.102/- per sq.mtr., which sale was effected on 3rd September 1983. The said sale was also in close proximity to the Notification. The Plot No.58 is part of the same layout where the Plot No.119 sale instance Exhibit 79 has been relied by the claimants. Besides, it is in the neighbouring locality to the land under acquisition. The Land Acquisition Officer has already assumed the fair ::: Downloaded on - 09/06/2013 16:11:50 ::: 32 FA.1033.03.sxw market price of Rs.100/- per sq.mtr. while computing the quantum of compensation. The question as to how the quantum of compensation should be deduced is no more res integra. The Apex Court in the case of Smt.Tribeni Devi & Ors. v. The Collector, Ranchi reported in AIR 1972 SC 1417 has expounded the broad principles to be kept in mind. The same position is restated by the Apex Court in catena of other decisions in latter point of time including in the case of Chimanlal (supra). In Paragraph 4 of the decision in the case of Chimanlal (supra), the Apex Court has articulated the broad contours to be kept in mind for determining the fair market price. The balancing features have also been adverted to in this paragraph. The smallness of size is a plus factor for getting better price. The sale instance relied upon by the claimants were ranging between 195 to 300 sq.mtrs. whereas, the land under acquisition is 17822.75 sq.mtrs. While considering the argument regarding the method adopted by the SLAO, we have adverted to the consideration of proximity of the land to the road. It is noticed that the existing DP road abutting the land on the western side was about 33 feet wide and the proposed road widening thereof was intended up to 60 feet wide. Besides the said DP road, on the southern side of the land under acquisition, there was provision of 40 feet wide DP road. We have also noticed that as in the case of sanctioned layout of the ::: Downloaded on - 09/06/2013 16:11:50 ::: 33 FA.1033.03.sxw neighbouring land, which was also owned by the claimants, even the land under acquisition could have been developed in the same manner in which case, access to all buildable plots on the land could be provided for. In that case, the argument regarding the advantage on account of proximity to road only to some plots and not to others would not be available. It is not a case of acquisition of small plot but one of about 17822.75 sq.mtrs. The frontage of road would also become relative in the present case, if the layout was to be provided in the same manner as in the case of sanctioned layout. For, the frontage and proximity to the road to every section of the land would become available. Further, we have noticed that the land under acquisition was completely undeveloped. Only the neighbouring land belonging to the claimants was developed and the plots were being sold as building plots which were fully developed. That position is accepted by the witnesses examined by the claimants themselves.
25. In our opinion, taking overall view of the matter, no fault can be found with the opinion recorded by the Reference Court while upholding the market price determined by the SLAO at the rate of Rs.100/- per sq.mtr.
POINT NO.4 :
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26. That takes us to the next question as to the justness and reasonableness of the deductions provided by the SLAO which have been confirmed by the Reference Court. The SLAO has provided deduction up to 25% towards road and open space. Insofar as this deduction is concerned, even the expert witnesses examined by the respective claimants have accepted the fact that such deduction has to be provided as the land under acquisition was undeveloped plot. Insofar as the witness examined by Vartaks PW 2, he has stated that while preparing hypothetical layout of the claimants' plot, he has shown internal roads which are 9.3% because there are other existing roads. He has also shown 10% open area as per the rules.
In the cross-examination, he has admitted that he did not consult any Architect while preparing the map and the layout. Suggestion is given to him that as per the Development Control Rules, only 3/4th area of gross area is available for the layout which suggestion has, however, been denied by the witness. He has, however, admitted that while making such provision, 1/10th space out of gross area is to be left out. He has denied that 15% space should be left for roads. The witness examined by claimants-
Pundales, has admitted that he has deducted 25% of the gross area towards roads and open spaces. If any authority is required on the point, the Apex Court in the case of Chimanlal (supra) in Clause (15) under Paragraph 4 ::: Downloaded on - 09/06/2013 16:11:50 ::: 35 FA.1033.03.sxw has plainly noticed that deduction by way of allowances at an appropriate rate ranging approximately between 20% to 50% to account for the land required to set apart for carving out lands and plotting out small plots can be provided. Even in the case of K.S.Shivadevamma (supra), in Paragraph 10 of the said decision, the Apex Court has noticed that under the Building Rules, 53% of land is required to be left out. It is further observed that the Apex Court has held as a general rule that for laying the roads and other amenities 33-1/3% is required to be deducted. The fact that the land is being acquired for reservation of childrens' playground that does not mean no deductions can be provided for. Somewhat similar plea was taken before the Apex Court in the case of K.S.Shivadevamma (supra) which came to be rejected as can be discerned from Paragraphs 8 and 9 of the said decision. In that case, the acquisition was for bus stand purpose. On that basis, it was argued that the question of providing deduction towards development cost does not arise. That plea has been rejected on the opinion that the principle is not for what purpose the land was acquired but what is to be kept in mind is that had the owner sold the land in open market as house sites, would he be entitled to use the entire land for building purpose?
That is the yardstick to be applied. Understood thus, the deduction provided by the Land Acquisition Officer of 25% towards road and open space i.e. ::: Downloaded on - 09/06/2013 16:11:50 ::: 36 FA.1033.03.sxw 4435.68 sq.mtrs. out of the scheduled area of land to be acquired, cannot be said to be unjust or improper. Therefore, the net plot of saleable area that would become available for the land under acquisition would be around 13,377 sq.mtrs.
27. The next deduction provided by the SLAO is towards deferred sale at 7% per annum, for a period of two years. This is on the assumption that the land under acquisition would be converted into 50 plots of around 250 sq.mtrs. and the time taken for sale of those 50 plots would be at least about two years from commencing the process of sale. Keeping that principle in mind, the SLAO has provided for 0.8734 value of the land. Insofar as this deduction is concerned, the expert witness examined by claimants (Pundales) PW 5 has admitted that such deduction ought to be provided while determining the fair market price of the land under acquisition. In his evidence, he has stated that the amount would be at the rate of 7% of gross proceeds for two years i.e. multiplier of 0.8734. The Land Acquisition Officer has adopted the same multiplier for deducting the amount towards deferred sale value of the land under acquisition. By now, it is well established that even such deduction is permissible and can be resorted to while determining the fair market price of the land under acquisition.
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28. The next deduction provided by the Land Acquisition Officer is towards development of road, water supply and electricity, etc. The Land Acquisition Officer has taken lump sum amount of Rs.1,50,000/- towards this head. These expenses is for the entire land which would be shared between the two sets of land owners in proportion to their land holding.
Even the expert witnesses examined by the claimants have provided for amount of deduction in their valuation report as well as deposed to in the evidence, in particular, PW 5 has provided for the same amount of deduction towards this head in the valuation report as well as oral evidence.
The expert witness examined by Vartaks PW 3 has also provided for such deduction but at a lesser amount. In our opinion, since the amount is a composite amount to be shared by both the land owners, there would be proportionate deduction to be shared by them as per their holdings. Thus, we have no reason to depart from the view taken by the Land Acquisition Officer. In the circumstances, we have no hesitation in taking the view that the deduction of Rs.1,50,000/- provided by the Land Acquisition Officer towards this head cannot be said to be improper or excessive.
29. The next deduction provided by the Land Acquisition Officer is ::: Downloaded on - 09/06/2013 16:11:50 ::: 38 FA.1033.03.sxw towards Architect's fees, legal charges, etc. at around 5% which comes to lumpsum Rs.58,374/-. Once again, the experts examined by both the claimants have spoken about 5% of gross proceeds to be set apart to cover this head. In other words, even the expert witnesses of the Claimants are ad-idem that such deduction ought to be provided for while determining the fair market price of the land under acquisition.
30. That takes us to the last deduction provided by the Land Acquisition Officer towards developer's profit at 15% of the gross proceeds. Even this deduction has been accepted by the expert witnesses of both the claimants.
Even on this deduction, the expert witnesses are ad-idem and have provided for the same in their valuation report as well as have deposed in their evidence. Accordingly, even this deduction neither can be said to be unreasonable or excessive.
31. That takes us to the last deduction provided by the SLAO which is specific to the case of Pundales. The said deduction is in respect of the expenses to be incurred for removing the unauthorised structures for getting back the possession of the land for the purpose for which it is acquired.
Insofar as this deduction is concerned, the authorities below have noticed ::: Downloaded on - 09/06/2013 16:11:50 ::: 39 FA.1033.03.sxw that there were in all 340 unauthorised structures on the land owned by Pundales. The Land Acquisition Officer has applied conservative amount of Rs.8/- per sq.mt. to provide for deduction towards expenses for removing such unauthorised structures and hutment dwellers. Notably, the expert witness examined by the claimants Pundales has himself advised deduction in this regard at the rate of Rs.12.85 per sq.mtr. as can be discerned from Paragraph 11 of his evidence. After providing for such deduction, he has arrived at the market value of the land belonging to Pundales at Rs.105/-
per sq.mtr. However, as aforesaid, the Land Acquisition Officer has provided for deduction on account of this head only at the rate of Rs.8/- per sq.mtr. which is far less than the one recommended by the expert witness of the claimant. Thus understood, even this deduction provided by the Land Acquisition Officer is unexceptionable and will have to be upheld. In the circumstances, no fault can be found with the view taken by the Land Acquisition Officer that insofar as claimant Pundales are concerned, they would be entitled to compensation at the rate of Rs.35/- per sq.mtr. instead of Rs.43/- per sq.mtr. on account of encumbrances on the land owned by them admeasuring 9511.38 sq.mtrs.
32. In view of the above, we have no option but to conclude that no fault ::: Downloaded on - 09/06/2013 16:11:50 ::: 40 FA.1033.03.sxw can be found either with the award passed by the SLAO or for that matter rejection of the Reference by the Reference Court.
33. Accordingly, both these Appeals are devoid of merits and ought to fail. Hence, both these Appeals are dismissed with costs.
(A.A.SAYED, J.) (A.M.KHANWILKAR, J.)
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