Municipal Corpn. of Gr. Mumbai Vs Chandangauri Amarchand Doshi

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

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 Appeal No.829 of 2004
 in

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 Land Acquisition Reference No.8 of 1989

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 Municipal Corporation of
 Greater Mumbai ..Appellants

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vs.

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 1. Chandanguari Amarchand
 Doshi and another ..Respondents

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 Mr.U.J.Makhija with Mr.Vinod Mahadik for appellants
 Mr.S.Malik for respondent no.1.

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 Mr.R.J.Mane, A.G.P.for respondent no.2

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CORAM: A.P.SHAH &
S.J.VAZIFDAR JJ.
9th March, 2005

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P.C.

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 1. This appeal is directed against the order

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 passed by the learned single Judge in a Reference
 under sec.18 of the Land Acquisition Act, 1894,

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 hereinafter referred to as the "Act". The land

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 under acquisition is CTS No.219 (part) admeasuring
 1152 sq.meters of village Kurla, Taluka Kurla
 District Mumbai Suburban belonging to the
 respondents/claimants. The land is acquired for
 Brihanmumbai Municipal Corporation for garden. The
 notification under sec.126(4) of M.R.T.P.Act, 1966l
 read with sec.6 of the Act was published in the
 Maharashtra Govt. Gazette Part I (BDS) dated 25th
 September, 1980. A total amount of Rs.14,96,173/-

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 has been awarded as compensation out of which an
 amount of Rs.4,65,301 is for the land belonging to
 the claimant. The award was made by the SLAO on
 23rd September, 1986. A correction order was made
 on 23rd December, 1986. By this correction the
 entire amount was paid to the claimants.

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 3. The land under acquisition is situated at Lal
 Bahadur Shashtri Marg on southern side. It abuts
 the said road on southern side opposite Kamani
 Engineering Works. The land is vacant. The land
 is low lying and requires filling. The
 surroundings of the land are fully developed. The
 land is about 2 k.m. away from Kurla Railway
 Station on west side. The claimants claimed
 compensation at Rs.1250/- per sq.meter before the
 SLAO. The SLAO awarded the compensation at the
 rate of Rs.200/- per sq.meter. Being aggrieved the
 present reference was made under sec.18 of the Act
 . The reference was disposed of by the learned
 single Judge by order under appeal and the amount
 of compensation was increased from Rs.200/-per
 sq.meter to Rs.400/- per sq.meter.

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 4. We have gone through the entire record with the
 assistance of the learned Counsel appearing for the
 parties. The single Judge has placed reliance on

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 the award/judgment of this Court in respect of the
 land bearing C.T.S.No.159(part) of village Kurla
 being L.A.R.No.34 of 1981 in LAQ No.461 wherein the
 compensation awarded was at the rate of Rs.300/-
 per sq.meter. The said land shall hereinafter be
 referred to as "the instance land". In that case
 the SLAO had awarded the rate of Rs.260/- per
 sq.meter. By consent of the parties the Court has
 awarded the rate of Rs.300/- per sq.meter.
 According to the claimants the land under reference
 is superior than the instance land in as much as
 there were encroachments in the form of 17
 residential tenements on the instant land and
 acquiring body had agreed to provide alternate
 accommodation to all of them whereas the land under
 reference is vacant and unencumbered land.
 Further, according to the claimants, the land under
 reference is abutting 130’ road whereas the
 instance land has proximity to a narrow street of
 15’ wide. There are some other distinquishing
 features pointed out by the learned Counsel for the
 respondents like the instance land is situated with
 odd shape and has frontage of only 60 feet and is
 surrounded by slum. As against this the land under
 reference has a frontage of 120 feet and area
 surrounding the land is fully developed.

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 5. Taking an over all view of the matter, the
 learned single Judge has concluded as follows:

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 "Taking into account plus and minus factors
 and features such as location, situation of
 the land under reference surrounding areas
 and proximity from Kurla station,
 availability of amenities, development in
 the surrounding area of residential building
 and amenities, in addition to the fact that
 the land under reference is vacant and
 un-encumbered, compensation to be awarded in
 this case should be Rs.400/- per square
 meters."

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 6. Mr.Makhija urged that there are no plus factors
 in respect of the land under reference except for
 the fact that the land under reference is abutted
 130’ road whereas the instance land abutted 15’
 wide Naupada road. According to the learned
 Counsel the land under reference had a minus factor
 in as much as the land requires 5 to 6 feet filling
 whereas the instance land was levelled land and,
 therefore, plus factor for abutting LBS marg and a
 frontage is more than offset by the fact that the
 land under reference required filling and,
 therefore, plus and minus factor cancel each other

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 out and, therefore, the learned single Judge ought
 to have held that the land under reference is not
 entitled to have more compensation than the
 instance land.

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 7. We are unable to accept the submissions of
 Mr.Makhija. There are clearly distinquishing
 factors in so far as the instance land and land
 under reference are concerned. They may not vary
 to large extent but yet there are the peculiar
 factors and special features about the land under
 reference. Apart from the fact that the land under
 reference is a free hold land and there are no
 encroachments on the said land, it has proximity to
 road namely 130 feet wide road. Additionally it
 has a frontage of 130’ on the road. It is regular
 in shape and surrounded by developed locality. As
 against this the instance land is encroached upon
 by 17 tenements. It has proximity of a narrow
 street of 15 feet wide and it is situated at
 irregular shape and frontage of only 60 feet.
 Moreover the instance land is surrounded by slum.
 In these circumstances, we see no infirmity in the
 finding of the learned single Judge fixing the
 market value at Rs.400/- per s q.meter. We may
 also mention that the claimants have agreed to
 accept statutory interest at the rate at 8% p.a.

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 instead of 15% as granted by the learned single
 Judge. Taking over all view of the matter we are
 of the opinion that in the circumstances of the
 case, the award of the learned single Judge
 granting compensation at the rate of Rs.400/-per
 sq.meter does not require any interference.
 However, we wish to clarify that the Award of the
 learned single Judge is based on the peculiar
 features of the land and we have also taken into
 consider the fact that the claimants have agreed to
 give up part of the claim for interest and,
 therefore, we confirm the rate of Rs.400/- per
 sq.meter.

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. Appeal is accordingly disposed of.

Municipal Corpn. of Gr. Mumbai v. Chandangauri Amarchand Doshi

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Municipal Corpn. of Gr. Mumbai v. Chandangauri Amarchand Doshi

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