Partly allowed

Shrimant Govindrao Narayanrao Ghorpade. v. State of Maharashtra and Anr.

Bombay HC4 Apr 2008FA/815/1991

Case brief

AI extract

What is this about?

The High Court modified the award in two land acquisition cases by reducing the quoted market value of developed sale instances. For land acquired in 1979, value fixed at Rs.10/sq.ft. For land acquired in 1983, value fixed at Rs.18/sq.ft. Appeals by claimants allowed; State's appeals dismissed.

What did the court decide?

Market value modified to Rs.10/sq.ft. and Rs.18/sq.ft. Statutory benefits granted. Reference Court to calculate costs within four months.

Shrimant Govindrao Narayanrao Ghorpade. Vs State of… — Land Acquisition | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.813 OF 1991

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 Shri G.N.Ghorpade...Appellant

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vs.
State of Maharashtra
 The Special Land Acquisition
 Officer No.IX, Kolhapur...Respondents

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WITH
FIRST APPEAL NO.547 OF 1991

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 State of Maharashtra
 The Special Land Acquisition
 Officer No.IX, Kolhapur...Appellant
vs.
Shri G.N.Ghorpade...Respondents

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WITH
FIRST APPEAL NO.815 OF 1991

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 Shri Govindrao Narayanrao Ghorpade...Appellant

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vs.
State of Maharashtra
 The Special Land Acquisition
 Officer No.IX, Kolhapur...Respondents

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WITH
FIRST APPEAL NO.665 OF 1991

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 State of Maharashtra
 The Special Land Acquisition
 Officer No.IX, Kolhapur...Appellant
vs.
Shri G.N.Ghorpade...Respondents
Mr.R.S.Patil h/f Mr.A.K.Abhyankar for the Appellant in

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F.A.Nos.813 of 1991 and 815/1991 and for the Respondent
 in F.A.Nos.547 of 1991 and 665 of 1991.

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 Mr.B.H.Mehta A.G.P. for the Appellant in F.A.No.547 of 1991
 and F.A.no.665 of 1991 and for the Respondent in F.A.Nos.813
 of 1991 and 815 of 1991.

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CORAM: A.S.OKA,J.
DATE : APRIL 4, 2008.

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ORAL JUDGMENT:

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 1. These Appeals can be conveniently disposed of by a common
 Judgment.

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 2. First Appeal No.813 of 1991 is preferred by the original
 claimants for challenging the Judgment and Award dated 21st
 March 1990 passed by the II Additional District Judge,
 Kolhapur in L.A.R.No.4 of 1985. The land subject matter of
 the said reference is bearing R.S. no.608 situated at
 Ichalkaranji, District Kolhapur. The area of the acquired
 land is 1200 sq.meter. Notification under section 126(4) of
 the Maharashtra Regional and Town Planning Act,1966

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 (hereinafter referred to as "the said Act of 1966") read with
 section 6 of the Land Acquisition Act,1894 (hereinafter
 referred to as "the said Act of 1894") was issued on 6th
 January 1983. The acquired land was reserved under the
 development plan for the purpose of resettlement of the slum
 dwellers. An award under section 11 of the said Act of 1894
 was made on 18th February 1984. As the claimant did not

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 accept the said award, at his instance, a reference has been
 made under section 18 of the said Act of 1894. In the

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reference, the claim made for the compensation was at the rate
 of Rs.20/- per sq. foot. By the impugned Judgment and Award,
 the market value has been fixed at the rate of Rs.50/- per
 square meter (approximately Rs.4.65 per square foot). In
 addition to the market value, the reference court has granted
 statutory benefits under section 23(1-A), section 23(2) and
 section 28 of the said Act of 1894. In First Appeal No.813 of
 1991, the original claimant is seeking market value at the
 rate of Rs.20/- per square foot. First Appeal No.547 of 1991
 has been preferred by the State of Maharashtra seeking
 quashing of the same award.

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 3. First Appeal No.815 of 1991 has been preferred by the
 original claimant for challenging the Judgment and Award dated
 21st March 1990 passed by the learned II Additional district
 Judge, Kolhapur in L.A.R. No.3 of 1985. The acquisition
 relates to the land bearing R.S. No.575 situated at
 Ichalkaranji, District Kolhapur. Area of the acquired land is
 1200 sq. meters. Notification under section 6 of the said
 Act, 1894 read with section 126 (4) of the said Act of 1966
 was issued in this case on 20th January 1979. The acquired
 land was reserved for construction of a primary school in the
 development plan. The Award under section 11 of the said Act
 was made on 6th February 1984. As the said Award was not
 accepted by the claimant, at the instance of the claimant, a
 reference under section 18 of the said Act of 1894 was made.

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The claim made by the claimant for market value in the said
 reference was at the rate of Rs.10/- per square foot. By the
 impugned Judgment and Award, the market value has been fixed
 by the reference court at the rate of Rs.50/- per square
 meter. The Statutory benefit under section 23(1-A), 23(2) and
 28 have been granted by the reference court in addition to
 enhancement in the market value. First Appeal No.815 of 1991
 has been preferred by the claimant claiming the market value
 at the rate of Rs.10/- per square foot. First Appeal No.665
 of 1991 has been preferred by the State of Maharashtra for
 challenging the same Award where the prayer is made for
 quashing the said Award.

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 4. The learned counsel for the claimants in the aforesaid
 Appeals has taken me through the notes of evidence and the
 relevant sale instances on record. He pointed out that the
 sale instances clearly establish that the market value of the
 comparable land in the city of Ichalkaranji at the relevant
 time was in the range of Rs.20/- to Rs.30/- per sq.ft. He
 invited my attention to the finding recorded by the reference
 court in L.A.R. No.4 of 1985 and in particular paragraph 10
 thereof in which the reference court has observed that from
 the sale instances on record it appears that the average price
 of the plots in the vicinity of the acquired land was Rs.21/-
 to Rs.30/- per sq. ft. He pointed out that while deciding
 the L.A.R.No.3 of 1985, in paragraph 10 of the said Judgment,

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similar observation has been made. He placed reliance on the
 Judgment of a Single Judge of this Court dated 7th December
 2007 in First Appeal No.268 of 1997 (G.N.Ghorpade Vs. State
 of Maharashtra and another). He submitted that in case of
 similarly situated lands in the vicinity of the acquired lands
 which are subject matter of the present Appeals, this court
 has fixed the market value at the rate of Rs.40/- per sq foot.
 He pointed out that considering the nature of the evidence,
 and in view of the aforesaid decision of this court, the
 market value ought to have been fixed as prayed by the
 claimants.

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 5. The learned Assistant Government Pleader submitted that
 the sale instances which are relied upon before the Reference
 Court are the sale instances of the developed lands and in the
 present Appeals we are dealing with the agricultural lands.
 He submitted that the sale instances of developed lands cannot
 be taken into consideration for determining the market value
 of the acquired lands. He submitted that some of the sale
 instances are required to be ignored as the same are of pre-
 notification sales. He also pointed out that the decision of
 this court in First Appeal No.268 of 1989 is not relevant as
 the relevant date for determination of the compensation in the
 said case is 21st July 1985. He, therefore, submitted that in
 absence of any reliable and relevant evidence on record, the
 Appeals preferred by the State of Maharashtra deserve to be

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allowed and the Appeal preferred by the claimant deserves to
 be dismissed.

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 6. I have carefully considered the submissions. It will be
 necessary to refer to the evidence adduced by the claimants.
 In L.A.R.No.4 of 1985, Shri Narhar Kulkarni, the constituted
 attorney of the claimant was examined. As pointed out
 earlier, in L.A.R.No.4 of 1985 the property subject matter of
 acquisition is R.S.No. 608. In the deposition, he stated
 that on the east and west of the acquired land there are
 buildings. And beyond those buildings there is a primary
 school. He deposed that both on the southern and northern
 sides there are buildings. He stated that the town of
 Ichalkaranji is known for powerlooms and open places are not
 easily available at Ichalkaranji.

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 7. In the evidence, he referred to the land subject matter of
 the sale instance of the Nutan Nagari Sahakari Bank Ltd.
 (Exh.29). He stated that the said land was at the distance of
 250 sq. feet from the acquired land. He also referred to the
 sale instance of the land purchased by Veershaiva Bank by
 stating that the said land was also at the distance of 250
 feet from the acquired land. He stated that the property
 purchased by the Medical Association of Ichalkaranji was 150
 feet away from the acquired land. In the cross examination,
 he admitted that on the relevant date, the acquired land was

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an agricultural land. He stated that he did not apply for
 permission to use the acquired land for N.A. use. He denied
 the suggestion that the primary school was opened in the year
 1983-84 after acquisition of the some of the properties.

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 8. The second witness examined by the claimant in L.A.R.No.4
 of 1985 is one Shri Shankar Ramchandra Poojari. At the
 relevant time the said witness was the Chairman of the Nutan
 Nagari Sahakari Bank Ltd., Ichalkaranji. He stated that the
 said bank purchased the land admeasuring 6677 sq. ft. on
 22nd December 1978 at the price of Rs.1,95,310/-. He proved
 the sale deed in the evidence. He stated that before entering
 into the said transaction, the bank had made an enquiry
 regarding the market value of the property. In the cross
 examination, he admitted that the property was purchased for
 construction of a building of the bank as it was most
 convenient for the bank. He stated that before purchasing the
 said land, he inspected 4 to 5 properties. He stated that the
 city survey number was already given to the said land and
 there was a dilapidated house on the said land. He stated
 that the land was purchased along with a common wall.

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 9. The third witness examined by the claimant in L.A.R.No.4
 of 1985 is Shri Vishwanath Bandopant Kore who was in the
 employment of Veershaiv Bank since 1968. He stated that the
 bank purchased the land admeasuring 5262 sq.ft at the cost

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of Rs.1,00,000/- in September 1974. He proved the sale deed
 in his evidence. In the cross examination he stated that the
 land purchased by the said bank is within the municipal limits
 of City of Ichalkaranji. He stated that the plot was
 purchased for the purpose of business of banking. He also
 stated that on the northern side of the said plot, there are
 buildings of the vendor and there were roads on the southern
 side and western side of the plot.

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 10. In L.A.R.No.3 of 1985, Shri Narhar Kulkarni, the
 Constituted Attorney of the claimant was examined by the
 claimant. In this case, the land subject matter of the
 acquisition is R.S.No.575 of Ichalkaranji. Paragraph 3 of his
 deposition reads thus :

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The suit land is bounded on east by 40’ wide road and
beyond it there is a palace. The land is bounded on the
west by a Drama theatre and by some bungalow type
buildings. This land is bounded on the north by a
portion of the same which we had told to one Mali and
beyond that portion there are houses. The land is
bounded on south by some houses. Ichalkaranji town is
famous as an industrial centre. As the population has
increased, there is scarcity of open plots at
Ichalkaranji."

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11. He stated that the property of the Nutan Nagari Sahakari

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Bank was at the distance of 150 feet of the acquired land
 subject matter of the said reference. The plot of the Medical
 Association is 100 feet away from the acquired land and the
 building of the Veershaiv Bank is at a distance of 200 to 250
 feet from the acquired land. He admitted that at the time of
 acquisition, the suit land was used as an agricultural land.
 There was no lay-out either made or applied for in respect of
 the suit property at the time of its acquisition.

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 12. As stated earlier, the relevant date in case of L.A.R.
 4/85 is 6th January 1983 and the relevant date in case of
 L.A.R.no.3/1985 is 20th January 1979. Turning to the
 L.A.R.No.3/1985, the sale instance of the plot of land

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 purchased by Veershaiva Bank may not be relevant as the date
 of transaction was of September 1974. In so far as the other
 sale instances at Exh.29 in L.A.R.No.4 of 1985 is concerned,
 the sale instance is of the land purchased by the Nutan Nagari
 Sahakari Bank Ltd. The said sale instance is relevant as the
 date of sale is 22nd December 1978. The said sale instance
 can be the basis for determining the market value of the
 acquired land subject matter of L.A.R.No.4 of 1985.

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 13. Now turning to the land subject matter of
 L.A.R.No.3/1985, as narrated above, the said land was an

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 agricultural land on the relevant date. The land subject
 matter of the sale instance of the Nutan Nagari Sahakari Bank

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Ltd. which was purchased by the said Bank on 22nd December
 1978 was a land to which city survey number was already given
 and there was a house in dilapidated condition on the said
 land. The land subject matter of the said sale instance was
 already put to non agricultural use. Moreover, the area of
 land subject matter of the said sale instance is 6677 sq.
 feet whereas the area of the acquired land is 1200 sq. meter.
 Thus, the area of the acquired land is nearly double in size
 of the area of land subject matter of the said sale instance.
 The area of the acquired land is very large. The constituted
 attorney of the claimant stated that the acquired land subject
 matter of the L.A.R.No.3/1985 was at the distance of 150
 sq.feet from the land subject matter of the sale instances at
 Exh.29. Thus, the land subject matter of the sale instance is
 in close proximity of the acquired land. The market value
 reflected from the sale instance of the Nutan Nagari Bank Ltd.
 is approximately Rs.29.25 per sq.ft. The witness Shri
 Shankarrao Poojari admitted that when the property was
 purchased by the bank, there was one dilapidated house in the
 open land. Reliance has been placed on the decision of the
 First Appeal no.268 of 1997. However, in the said case, the
 relevant date was 21st July 1986 which is long after the
 relevant date in the case in hand. Therefore, it will not be
 proper to rely upon the said Judgment as the basis for the
 determination of the market value.

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14. The Apex Court has held that the determination of the
 market value under section 23 of the said Act of 1894 always
 involves an element of guess work. However, the said guess
 work is to be made on the basis of the evidence of comparable
 sale instances. In L.A.R.No.3 of 1985, as stated earlier the
 area of the land is double in size of the area of the land
 covered by the Exh.29. The acquired land was an agricultural
 land as distinguished from the land subject matter of the said
 sale instance. Firstly, a deduction will have to be made on
 account of development charges. For determination of the
 market value, further deduction will have to be made as the
 land subject matter of Exh.29 was a land having a building.
 Though I have held that the Judgment in First Appeal No.268 of
 1997 may not be relevant for deciding the market value in this
 case, the acquired land in the said Appeal was in the same
 locality and was acquired on 21st July 1986 and the market
 value has been fixed at the rate of Rs.40/- per sq.ft.
 Perusal of the said Judgment shows that the land subject
 matter of the said decision was close to the plot acquired by
 the Medical Association of Ichalkaranji and the said plot is
 close to the acquired land in this Appeal.

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 15. The normal deduction on account of development charges
 ranges from 10% to 40%. In the present case, we are dealing
 with the plot of land in the developed city of Ichalkaranji.
 After making a deduction on account of development charges,

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for arriving at market value on the basis of sale instances at
 Exh.29, further deduction will have to be made as on the
 relevant date not even an application was made for grant of
 permission to convert the land for the non agricultural use.
 Therefore, considering aforesaid facts, the market value of
 the land subject matter of L.A.R.No.3 of 1985 will have to be
 fixed at the rate of Rs.10/- per sq. ft. which was the claim
 made by the claimant.

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 16. Now, turning to the L.A.R.No.4 of 1985, the land subject
 matter of the said L.A.R. is in the close vicinity of the
 land subject matter of L.A.R.No.3 of 1985. The land subject
 matter of the L.A.R.No.3 of 1985 is at the distance of 150 ft.
 from the land subject matter of the sale instance at Exh.29
 whereas the land subject matter of L.A.R.No.4 of 1985 is at
 the distance of 250 meters from the land subject matter of
 Exh.29.The relevant date in L.A.R.No.4 of 1985 for
 determination of market value is 6th January 1983 as against
 the relevant date of 20th January 1979 in the case of
 L.A.R.No.3 of 1985.

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 17. Perusal of Judgment in First Appeal No.268 of 1997 shows
 that the market value of the land in the same vicinity was
 fixed at Rs.40/- per sq.ft. as of July 1986 and as held above
 the market value of the similarly situated land in the year
 1979 was approximately Rs.10/- per sq.

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18. A judicial notice can be taken of the fact that from 1979
 onwards the prices of similarly located properties have
 steadily increased.

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 18. The market value awarded by the Reference court in
 L.A.R.No.4 of 1985 comes to approximately Rs.4.65 per sq. ft.
 In my view, the market value of the said land will have to be
 fixed at the rate of Rs.18/- per sq. ft.

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 19. In these cases, Awards under section 11 have been made
 after 30th April 1982 and hence, there cannot be any dispute
 as regards the statutory benefits. Hence, the Appeal
 preferred by the claimant must succeed and the Appeals
 preferred by the State of Maharashtra will have to be

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 20. Hence, I pass the following order :

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First Appeal No.813 of 1991 is partly allowed. The
market value fixed under the impugned Judgment and Award
is modified and it is declared that the claimant will be
entitled to the total market value calculated at the rate
of Rs.18/- per sq. ft. In addition to the said market
value, the claimant will be entitled to statutory
benefits which are already granted under the impugned

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Judgment and Award. The claimant will be entitled to
proportionate costs of the Reference No.4 of 1985 as well
as the proportionate costs of the Appeal from the State
of Maharashtra.

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ii)

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The exercise of calculating the compensation payable on the basis of the modified award shall be completed by the Reference Court within a period of four months from the date on which the writ of the Judgment is received by the said court.

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 iii)First Appeal No. 547 of 1991 is hereby dismissed with no

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order as to costs.

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iv) First Appeal No.815 of 1991 is allowed. The market value fixed by the impugned Judgment and Award is modified. It is declared that the claimant will be entitled to the total market value of Rs.10/- per sq. ft. In addition to the market value, the claimant will be entitled to statutory benefits which are already granted under the impugned Judgment and Award. The claimants will be entitled to costs of the reference as well as costs of the Appeal from the State of Maharashtra.

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v) The exercise of calculating the compensation payable under the impugned Award shall be completed by the

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Reference Court within a period of four months from the
date of receipt of the writ of this judgment.

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vi) First Appeal No.665 of 1991 is dismissed with no order as

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to costs.

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JUDGE

Shrimant Govindrao Narayanrao Ghorpade. v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Shrimant Govindrao Narayanrao Ghorpade. v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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