Disposed

The Special Land Acqn Officer. v. the Secretary, Govindram Bros and the Muncipal Corpn. Gr Mumbai

Bombay HC13 Aug 2004LAR/25/1984

Case brief

AI extract

What is this about?

This judgment determines land acquisition compensation for three references. The Court accepted a government valuer's report and fixed compensation at Rs.200 per sq.mtr., citing the claimants' prior agreement to this rate and making allowances for the acquiring body.

What did the court decide?

The references are answered by valuing the lands at Rs.200 per sq.mtr.; security deposited by claimants to be returned after 1st October 2004; no order as to costs.

The Special Land Acqn Officer. Vs the Secretary, Govindram… — Land Acquisition | Bombay HC (2004)

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¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

 LAND ACQUISITION REFERENCE NO.21 OF 1983

¶4

 The Special Land Acquisition
 Officer (7), Bombay and Bombay
 Suburban District,
 Municipal Corporation Extn.Bldg.,
 Room No.24, Ground floor,
 Bombay V.T. Bombay - 400 001.
 And
 The Secretary,
 Govindram Bross Pvt.Ltd.
 on behalf of the Estate
 Investment Co.Pvt. Ltd.,
 Sekseria Chambers, 139-Nagindas
 Master Road, Fort, Bombay - 400 023. ...Claimant
 And
 The Municipal Corporation for
 Greater Mumbai, Mahapalika Marg,
 Mumbai. ...Acquiring
 ...Body
 WITH
 LAND ACQUISITION REFERENCE NO.25 OF 1984

¶5

 The Special Land Acquisition
 Officer (7), Bombay and Bombay
 Suburban District,
 Municipal Corporation Extn.Bldg.,
 Room No.24, Ground floor,
 Bombay V.T. Bombay - 400 001.
 And
 The Secretary,

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 Govindram Bross Pvt.Ltd.
 on behalf of the Estate
 Investment Co.Pvt. Ltd.,
 Sekseria Chambers, 139-Nagindas
 Master Road, Fort, Bombay - 400 023. ...Claimant
 And
 The Municipal Corporation for
 Greater Mumbai, Mahapalika Marg
 Mumbai. ...Acquiring
 ...Body
 WITH
 LAND ACQUISITION REFERENCE NO.26 OF 1984

¶8

 The Special Land Acquisition
 Officer (7), Bombay and Bombay
 Suburban District,
 Municipal Corporation Extn.Bldg.,
 Room No.24, Ground floor,
 Bombay V.T. Bombay - 400 001.
 And
 The Secretary,
 Govindram Bross Pvt.Ltd.
 on behalf of the Estate
 Investment Co.Pvt. Ltd.,
 Sekseria Chambers, 139-Nagindas
 Master Road, Fort, Bombay - 400 023. ...Claimant
 And
 The Municipal Corporation for
 Greater Mumbai, Mahapalika Marg
 Mumbai. ...Acquiring
 ...Body

¶9

 Mr.C.M. Korde with Mr.V.S.Singh with Mr.Shrikant Shah
 i/b Mehta Girdharlal for the Claimants.

¶10

 Mr.O.J. Makhija with Mr.K.N. Gaikwad for the

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 Acquiring Body.

¶13

 Mr.D. D’Mello, AGP for S.L.A.O. in L.A.R. No.21 of
 1983.

¶14

CORAM : S.J. VAZIFDAR, J.
DATED : 12TH/13TH AUGUST, 2004.

¶15

ORAL JUDGMENT :

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 1. The above land acquisition references were

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 referred by the Special Land Acquisition Officer (7),
 Bombay and Bombay Suburban District under Section 18
 of the Land Acquisition Act, 1984 for determination of
 the amount of compensation to be awarded in respect of
 the lands acquired for the Bombay Municipal
 Corporation.

¶18

 2. It was agreed between the parties that the

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 evidence in the first matter would be read in the
 other two matters. The evidence was common as the
 owner and the acquiring body of all three plots of
 land were the same. Further the land in all three
 matters was acquired on the same date though by
 different notifications. The date for valuation of
 the land is also the same. Further the plots of land
 in each of the references are adjacent to each other.
 Accordingly the above references are dealt with by
 this common judgment.

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 3. The land in L.A.R. No.21 of 1983 was acquired
 for a D.P. Road. The land in L.A.R. No.25 of 1984
 was acquired for a road depot. The land in L.A.R.
 No.26 of 1984 was acquired for a garden.

¶22

 4. The lands in L.A.R. No.21 of 1983, L.A.R.
 No.25 of 1984 and L.A.R. No.26 of 1984 admeasure 1602
 sq.mtrs., 8171.60 sq.mtrs. and 18,266.10 sq.mtrs.
 respectively.

¶23

 5. In L.A.R. No. 21 of 1983, the B.M.C. by its
 letter dated 18th February, 1990 addressed to the
 Commissioner, requested for acquisition of the lands
 for the aforesaid purposes under the provisions of the
 Maharashtra Regional Town Planning Act (for short
 "M.R.T.P. Act.") read with the Land Acquisition Act
 (for short "L.A. Act."). The proposals to acquire
 the lands have been approved by the B.M.C. The
 development plan has been approved by the Government
 reserving the lands under these references for the
 purposes of a 56 ft. D.P. road. The draft
 development plan was published and the final
 development plan had come into effect from 15th
 October, 1966. Accordingly the Commissioner issued a
 notification under Sections 126(2) and (4) of the

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 M.R.T.P. Act read with Section 6 of the L.A. Act. A

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 similar procedure was adopted by the B.M.C. in
 respect of the lands under L.A.R. Nos.25 of 1984 and
 26 of 1984. In L.A.R. No.25 of 1984 the land was
 reserved under the same final development plan for a
 road depot for the B.M.C. In L.A.R. No.26 of 1984
 the land had been reserved under the final development
 plan for the B.M.C. garden. The notifications in
 respect of the lands pertaining to L.A.R. Nos.25 of
 1984 and 26 of 1984 under Section 126(2) and (4) of
 the M.R.T.P. Act read with Section 6 of the L.A. Act
 were also issued on the same date as the notifications
 in respect of the land in L.A.R. No.21 of 1983 i.e.
 1st October, 1981. The possession of the lands was
 taken on 30th March, 1981 and 25th March, 1983 in
 L.A.R. Nos.21 of 1983 and 25 of 1984 and in L.A.R.No.
 26 of 1984 on 23rd September, 1983 respectively.

¶27

 6. The S.L.A.O. by his award in each of the
 references awarded a sum of Rs.190/- per sq.mtrs. The
 claimant being dissatisfied with the award applied for
 a reference to the Court under section 18 of the L.A.
 Act. The S.L.A.O. accordingly referred the matters
 to this court.

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 7. Before proceeding to decide the case on

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 merits, it is necessary to refer to certain events
 that transpired prior to the hearing. It appears that
 minutes of the order dated 9th October, 1989 were
 entered into between the parties in each of the above
 references. By orders all dated 12th October, 1989, a
 learned single Judge of this Court passed an order in
 terms of the minutes of the order and disposed of the
 references in terms thereof. However, a Division
 Bench of this Court by its orders and judgments all
 dated 8th March, 1995 in the above references set
 aside all the aforesaid orders dated 12th October,
 1989 and remanded the references for fresh disposal.
 That is how the above references came to be heard.

¶31

 8. The claimants examined three witnesses viz.

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 one N.D. Seksaria, a Director of the Estate
 Investment Company Pvt.Ltd., one Ashok Chandrashekhar
 Vaidya, an Architect and Government approved valuer
 and one P.B. Samant, the owner of certain
 neighbouring lands. Only formal evidence of Seksaria
 was led to establish that the Estate Investment
 Company Pvt.Ltd. had no objection to the compensation
 being paid to the claimants, as the claimants had
 acquired the property.

¶33

 9. A.C. Vaidya filed two affidavits containing

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¶35

 his examination-in-chief both dated 19th July, 2004.

¶36

 In the first affidavit, he has stated his
 qualification as an Architect and Government approved
 valuer. I do not intend stating in detail the
 contents of his affidavits, as there did not appear to
 be any dispute regarding his qualification as an
 Architect and Government approved valuer. I think the
 same is beyond doubt. It is necessary, therefore,
 only to deal with his evidence on merits.

¶37

 10. A.C. Vaidya stated that the Claimants had
 sought the services of his firm for the purposes of
 determining the fair market value of the property ;
 that he personally visited the property as well as
 plots in the cited instances on which his report
 relied and tendered a valuation report valuing the
 acquired lands in the above references. He deposed
 that the contents of the valuation report are correct
 and to his knowledge. Similar affidavits were filed
 in all three references.

¶38

 11. As stated in the valuation report, the valuer
 valued the land in L.A.R. No. 21 of 1983 as on 1st
 October, 1981 at the rate of 304 per sq.mtrs. He
 valued the land in L.A.R. No.25 of 1984 on the basis
 of "Hypothetical Plotting Scheme Method" and

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 "as-is-basis" at the rate of Rs.304/- per sq.mtr. and
 Rs.228/- per sq.mtrs. basis. In L.A.R. No.26 of
 1984, he valued the land on the basis of "Hypothetical
 Plotting Scheme Method" and "as-is-basis" at the rate
 of Rs.304/- per sq.mtr. and Rs.242/- per sq.mtrs.
 Further the valuer has deducted an amount of Rs.20/-
 per sq.ft. of the area occupied by the structures in
 the possession of third parties. Further having done
 so, he arrived at a value of the land in L.A.R. No.21
 of 1983 at Rs.282/- per sq.mtrs., in L.A.R. No.25 of
 1984 at Rs.218/- per sq.mtrs. and in L.A.R. No.26 of
 1984 at Rs.226/- per sq.mtrs.

¶41

 12. The valuer has meticulously stated the
 background of the case leading to the acquisition.
 Clearly there is no dispute as to the situation and
 description of the land. Nor is there any dispute as
 to the area in possession. The only dispute between
 the parties is to the valuation of the lands.

¶42

 13. The lands in all the references are situated
 near the junction of the 70 ft. wide Goregaon-Mulund
 Link Road and abut a 44 ft. wide D.P. Road. The
 portions of the land under L.A.R. No.21 of 1983 are
 situated at the distance of 1.25 kms. from Goregaon
 Railway Station at its east side. The Western Express

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 Highway is at a distance of only 300 mtrs. from the
 plot in L.A.R. No.21 of 1983. All civic amenities
 such as markets, schools, hospitals etc. are in close
 proximity. Similarly, all surface modes of public
 transport like buses, taxis and trains are available
 within walking distance. The lands under acquisition
 are situated in a mixed locality viz. residential and
 industrial. The area on the west and north side of
 the lands under acquisition is residential, whereas
 the area on the south and the east is industrial.
 This has been recognized in the award as well.

¶45

 14. The valuer then goes on to state that the
 sales comparison method is the most appropriate one
 for valuation in the present case. He describes the
 same. The sales comparison method comprises of
 determining the market value of the property by
 analysing the instances of sales of similar lands in
 the neighbourhood. The valuer has at each stage taken
 into consideration the fact that the lands comprised
 in L.A.R. Nos.25 of 1984 and 26 of 1984 are larger in
 area. He was unable to find instances of sales of
 such large plots of land. He, however, came across
 two comparable instances of sale of plots in close
 proximity to the lands under acquisition. The plots
 of land are located in a private development scheme

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 prepared and executed by the said P.B. Samant. It is
 pertinent to note at this stage itself that the
 S.L.A.O. also considered these sale instances while
 arriving at the award. Though during the course of
 cross-examination, Mr.Makhija did establish that the
 sale instances are not very similar. I do not think
 that the evidence led has established that they are
 not at all comparable. I shall come to that aspect
 shortly.

¶48

 15. The valuer has in great detail explained the
 hypothetical plotting scheme method adopted by him in
 view of his inability to obtain the sale instances of
 plots as large as the acquired plots. He prepared
 scheme on the basis of the hypothetical plotting
 scheme method in respect of the two larger plots of
 land. Since the plot of land would require internal
 roads, he provided the same. Plots such as these
 would also mandatorily require a part thereof to be
 retained for reclamation purposes. He made allowances
 for the same. Lastly, the valuer took into
 consideration the fact that there were encumbrances by
 way of the structures on parts of the acquired lands.

¶49

 16. It is necessary at this stage for me to deal
 with the valuation report in so far as it relates to

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 the sale instances relied upon by the S.L.A.O.
 Suffice it to state at this stage that the valuer has
 in detail explained why there is some difference
 between the valuation arrived at by the S.L.A.O. and
 himself while considering the sale instances common to
 both.

¶52

 17. Pausing for a moment, it must be noted that
 the claimant led the evidence of P.B. Samant to
 establish Exhibit C-1, C-2 and C-3 which were sale
 deeds in respect of sale instances relied upon by the
 claimant. It was necessary for the valuer to examine
 the trend of the price reflected from those documents
 as they were executed some time before the relevant
 date of the valuation viz. dated 1st October, 1981.
 The sale instance in Exhibit C-1 was dated 11th
 January, 1997, in respect of plot No.11 of Subhash
 Nagar. The sale instance in Exhibit C-2 was pursuant
 to a deed of sale dated 30th March, 1978 in the same
 scheme. The last Exhibit C-3 was the indenture dated
 20th June, 1989 in respect of plot No.8 in the said
 scheme. The plots in Exhibits C-1 and C-2 establish
 that the plots were sold at the rate of about
 Rs.101.66 per sq.mtrs. in April/May, 1975 in
 Goregaon. It is true that these were smaller plots.
 Exhibit C-3 establishes that the plot was sold in

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 June, 1989 at the price of about Rs.350/- per sq.mtrs.
 There was some argument on the point in Exhibit C-3 as
 well. The absence of a consideration of all the plots
 to my mind does not reflect on the merits of the
 valuation report in any manner. The valuer has in his
 evidence deposed that the plots in Exhibit C-1 and C-2
 were superior to the plots in Exhibit C-3 inasmuch as
 they were not affected by the Urban Land (Ceiling and
 Regulation) Act. The valuer has given necessary
 allowances on account of the location factor and
 U.L.C. factor. Indeed, the valuer has even made
 allowances for the period between 25th June, 1975 and
 21st March, 1977 when emergency was declared in India
 for the reason that the prices during that period
 remained stagnant. After having made all these
 allowances, the valuer came to the conclusion that
 there was a rise in price of about 44.21% per annum.

¶55

 18. I am unable to state that this evidence of the
 Valuer was ex-facie incorrect or unsatisfactory.
 There is no evidence to contradict him. There is
 nothing to suggest that his analysis is absurd or
 unsustainable. I see no reason to doubt his evidence
 on this aspect in any manner. In the circumstances, I
 do not think that there can be any grievance on the
 part of the acquiring body in this regard. There is a

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 plan attached to the valuation report, wherein the
 plotting has been clearly demarcated by the valuer.
 There is nothing to suggest that the manner in which
 he has carried out the plotting is illogical or
 unsustainable. There is nothing to suggest that the
 location of the plots is not in conformity with law
 relating to the development of such plots. There is
 nothing to suggest that the location of the plots is
 impermissible on any account including on account of
 access. Further the access to the plots is also
 convenient and I do not think that it can be suggested
 for any reason that the value of the plots would be
 less than the value of the sale instances relied on by
 both by S.L.A.O. and the claimant.

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 19. In paragraph 13 of the report, the valuer has
 described in detail various suggestions leading to
 establishment of the prices on these basis. I do not
 intend setting out the same in detail despite the fact
 that the valuer has taken considerable trouble in this
 regard, as I have ultimately decided the matter on the
 alternate proposal by the valuer himself which is only
 to the advantage of the acquiring body.

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 20. The valuer has however in paragraphs 13.17 and
 13.18 opined that it is not necessary to apply any

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 deferment factor and he has in fact stated that it
 would be an error to apply a deferment factor. This
 is stated on the basis that normally the plots would
 be sold in a staggered manner. Thus the price
 realised on the sale of each of the plots would not be
 at the same time. In these circumstances, he opined
 that considering the situation prevailing in October,
 1981 the need to defer would be more than compensated
 by the increase in the market value of the plots. I
 am unable to disagree with the above reasoning either.
 There is nothing which is established which suggests
 the contrary. His cross-examination was not shaken to
 any extent in this regard.

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 21. After valuing the property on the hypothetical
 plotting basis, the valuer analyzed his evidence
 regarding the valuation of the lands under acquisition
 on "as-is-basis". For this purpose, he stated that
 there is nothing to suggest that he took into account
 unauthorised construction standing in certain portions
 of the land under acquisition. There is no dispute
 regarding the number of structures. There is no
 dispute regarding the area occupied by the structure.
 At least there is no significant dispute in this
 regard between the parties. The valuer took into
 consideration the price of such structures that a

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 person would normally have paid for removal of such
 unauthorised structures. He states in paragraph 13.33
 the enquiries he has made in this regard. Indeed his
 cross-examination only strengthens his evidence. In
 his affidavits of examination-in-chief, the valuer
 stated that he arrived at the price for the removal of
 the structure on the basis of the enquiries made by
 him. In cross-examination, he admitted that it was
 incorrect but it is pertinent to note that it is
 stated that the information furnished by him was on
 the basis of his own experience. This can only make
 his evidence more reliable. It can hardly reflect on
 him adversely. Further the reduction in the price on
 account of the structures was in respect of the area
 where the prices in fact are higher being closer to
 the city centre. Once again even on this aspect,
 there is no evidence to the contrary. I have no
 reason therefore to disbelieve him in this regard. It
 may be noted that the price was marginally higher but
 then the same has not been established before me. On
 the other hand, the valuer’s evidence in this regard
 has not been shaken in any considerable manner or to
 any considerable extent. Thus after making these
 allowances, the valuer has arrived at a rate of
 Rs.4,52,000/-, Rs.17,81,000/- and Rs.41,26,000/- in
 respect of all the lands under acquisition viz.

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 L.A.R. Nos.21 of 1983, 25 of 1984 and 26 of 1984.

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 The rate per sq.mtrs. was assessed by him at
 Rs.282/-, Rs.218/-, and Rs.226/- in respect of the
 lands under acquisition in L.A.R. Nos.21 of 1983, 25
 of 1984 and 26 of 1984.

¶68

 22. It is pertinent to note the cross-examination
 of the valuer in paragraphs 30 and 31 in this regard.
 He has explained quite convincingly that it was
 necessary to add Rs.50/- per sq.mtrs. in respect of
 Exhibit C-1 over the price of Exhibit C-3 in view of
 the fact that the same was not as well developed as
 Exhibit C-3.

¶69

 23. I shall proceed on the basis of the
 "as-is-basis" in the present case. That is the least
 that can be said in favour of the Claimant. The basis
 has not seriously been questioned.

¶70

 24. Mr.Makhija, however, pointed out that Samant
 in his cross-examination admitted that the sale
 instances in Exhibits C-1, C-2 and C-3 were entered
 into him for tax planning purposes. That may be so.
 It however, does not make a difference to the price.
 At least in his cross-examination, there is nothing to
 suggest that merely because the sales were entered

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 into for tax planning purposes, the transactions do
 not reflect the correct price or that the price of the
 land for that reason was enhanced.

¶73

 25. Mr.Makhija also invited my attention to the
 cross-examination of the valuer in L.A.R. Nos.25 of
 1984 and 26 of 1984. Firstly this pertains
 essentially to the hypothetical plotting scheme. As
 stated above I have accepted the valuation on the
 "as-is-basis". Mr.Makhija, however, pointed out that
 if the valuer had taken the price of Rs.350/- in
 respect of the plot pertaining to Exhibit C-3 then the
 annual rate of rise would have reduced by about 20% if
 the valuer had taken that price. Then the annual rate
 of rise would have been 34.49%. In that event he
 stated that the price would be marginally less than
 Rs.200/-. There is however a fallacy in the argument.
 Mr.Makhija presumed the valuer has stated that
 Rs.350/- should be the price of the said plots. It is
 true that Rs.350/- was the price of the plot covered
 by Exhibit C-3. However, as I have already observed
 earlier, the valuer has deposed to the effect that the
 plot in Exhibits C-1 and C-2 were better developed
 than the plot in Exhibit C-3. He therefore, adjusted
 the price calculating the annual rise. The highest
 that can be said in favour of the acquiring body here

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¶75

 is that the valuation may be reduced only marginally
 on this count. Although I am not at all sure that
 this would be fair to the claimant, this is the only
 factor that I have taken into consideration while
 fixing the price on an extremely charitable basis in
 favour of the acquiring body.

¶76

 26. The mere fact that the valuer stated that the
 increase of 44% arrived at by him is hypothetical is
 of not much significance. Ultimately there cannot be
 any arithmetic precision while arriving at the prise.
 Nor can there be arithmetic precision while arriving
 at a rate of increase. In the present case, the
 valuer has arrived at the rate of increase and the
 price on a rational and cogent basis which has not
 been destroyed in the cross-examination.

¶77

 27. Finally, I must state that the valuer has
 valued the said plots in an extremely responsible,
 fair and professional manner. I have not found his
 evidence at any stage to be unreliable. Even assuming
 that a different view can be taken, I am not prepared
 to state that his evidence is anything but proper and
 reliable.

¶78

 28. Having said that, however, there is some scope

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 : 19 :

¶80

 for reduction. I have taken an extremely charitable
 view in favour of the acquiring body. This, however,
 does not reflect on the valuer’s evidence in any
 manner whatsoever. I realise that it would not be
 totally fair or proper to hold the Claimants to what
 he had agreed in the minutes of the order, the same
 having been set aside. It is a fact that at one stage
 it had agreed in the minutes of the order to the rate
 of Rs.200/-. However considering the fact that at
 least at one stage they were satisfied with that rate
 I do not think any prejudice would be caused to them
 if I were to maintain that rate. Added to this, of
 course, is the fact that in view of the question
 regarding the extent of development to the plots,
 there is something to be said while taking a
 charitable view in favour of the acquiring body.

¶81

 29. In the circumstances, the references are
 answered as under :-

¶82

 i) The lands under acquisition under the above
 three references are valued at Rs.200/- per
 sq.mtrs. Mr.Korde fairly states that at the
 rate of Rs.200/- per sq.mtrs. the Claimants
 have received all the amounts that would be
 decreed to them under the L.A. Act including

¶83

 : 20 :

¶84

 by way of solatium and interest.

¶85

 ii) Mr.Makhija and Mr.Korde informed me that
 pursuant to the interim orders, the Claimants
 had already withdrawn the aforesaid amounts by
 furnishing a security. The security consisted
 of the documents of title of certain lands

¶86

 owned by the Claimants.

¶87

 iii) The Prothonotary and Senior Master shall

¶88

 return to the Claimants such documents as the
 Claimants have deposited by way of security
 in the above matters after 1st October, 2004.
 On or after 1st October, 2004, the security
 created by the Claimants shall stand forthwith
 discharged.

¶89

 iv) In the circumstances, there shall be no order
 as to costs.

¶90

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

¶91

 LAND ACQUISITION REFERENCE NO.21 OF 1983
 WITH

¶92

 LAND ACQUISITION REFERENCE NO.25 OF 1984
 WITH
 LAND ACQUISITION REFERENCE NO.26 OF 1984

¶93

 : 21 :

¶94

DATE OF DECISION : 12TH/13TH AUGUST, 2004.

¶95

 For Approval and Signature :

¶96

HON’BLE MR.JUSTICE S.J. VAZIFDAR.

¶97

 1. Whether Reporters of Local Papers )
 may be allowed to see the judgement ? )

¶98

 2. To be referred to the Reporter or
 not ? )

The Special Land Acqn Officer. v. the Secretary, Govindram Bros and the Muncipal Corpn. Gr Mumbai

Case brief

What is this about?

What did the court decide?

The Special Land Acqn Officer. v. the Secretary, Govindram Bros and the Muncipal Corpn. Gr Mumbai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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