Fazalbhai Ibrahim Co. Ltd. .. Claimants
Vs.
Land Acquisition Officer, Mumbai-3 .. Respondent
Date of reserving the Judgment : 20th JUNE, 2011.
Date of pronouncing the Judgment : 29th June, 2011.
JUDGMENT
1. The Claimants are the owners of land bearing City Survey No.70 admeasuring 1223.50 sq. mtrs. of Parel- Sewri Division of Bombay City which has been acquired by the Special Land Acquisition Officer-7, Bombay (SLAO-7).
2. The Suit land has been acquired by the Mumbai Municipal Corporation (MMC) for the construction of a primary school, for recreational ground (RG) and for development planning road (DP Road). There are two types of plots of the Plaintiffs which came to be acquired; vacant and tenanted/encroached upon. The Suit land is at Lower Currey Road near Railway Station, Mumbai.
3. The Notification under Section 6 of the LAA read with Section 126 of the Maharashtra Regional Town Planning Act (MRTP Act) was issued on 18.08.1983. It came to be gazetted in the Maharashtra Government's Gazette (MGG) on 23.01.1986. A public notice on site came to be put up on 25.01.1986 and the Award under Section 11 of the LAA came to be passed on 24.03.1988.
The said Award has been challenged under this Reference filed on 04.05.1988.
4. The SLAO has determined the compensation payable for the Suit land under the aforesaid Award at Rs.600/- per sq. meter of the land acquired. He has computed the total compensation payable for the Suit land deducting the government interest payable to the Collector of Mumbai and adding 30% solatium as well as 12% additional compensation from the date of declaration and government interest and arrived at a total compensation amount of Rs.10,26,164/-.
5. The amount of compensation is challenged by the Petitioner as inadequate. Upon the material relied upon by the SLAO the Claimants claim compensation at the rate of 1800 per sq. mtrs. of the land acquired.
6. The Claimants' land sought to be acquired was intially 1692.83 sq. mtrs. Out of these two plots of 227.05 sq. mtrs. and 469.43 sq. mtrs. were to be used for construction of primary school. 73 sq. mtrs. was to go in 30 ft. D.P. Road. 923 sq. mtrs. was reserved as RG.
One of these plots of 469.43 sq. mtrs. was found to be encroached upon and in occupation of certain occupants and tenants. Possession of that land has not been taken.
The Claimants contend that there is no order of withdrawal of the acquisition with regard to such encumbered land.
7. The SLAO has sought to acquire the vacant plots of land of the Claimants alone.
8. The essential challenge is to the determination of the value of the claimants' land. The Claimants have essentially relied upon the Award dated 24th March, 1988 passed by SLAO under Section 11 of the LAA to show that the acceptance of Instance No.1 shown by the Claimants (land owners) is erroneous. The Claimants contend that the SLAO should have accepted Instance No.3 shown by the Claimants (land owners) instead.
9. The Claimants have to produce and prove by independent material the valuation of their land as also how the acceptance of Instance No.3 shown by the Claimants (land owners) is required to be accepted by the SLAO.
10. For the determination of this Claim, the following issues are framed which are answered as follows:
ISSUES
1. What is the valuation of the acquired land proved by the Claimants ? No.
2. Whether the Claimants can claim any compensation on account of non acquisition of a part of the land. No.
3. What relief, if any, are the Claimants entitled to ? None.
11. The Claimants have examined their Officer and an Architect to prove the valuation of their land. These witnesses have been cross-examined on behalf of the acquiring body. The Claimants have not led any evidence for their claim of compensation of the land reserved by acquisition but not acquired. The Reference would have to be decided within this very narrow campus upon the evidence of the aforesaid two witnesses.
ISSUE NO.1
12. The first witness on behalf of the Claimants, who is its director, set out the three instances which are shown in the Award itself as instances given by the Claimants (land owners) in the Award. The affidavit of examination-in-chief of the director of the Claimants shows the reproduction of the particulars with regard to those instances.
13. The said director has also enumerated the valuation of the acquired land fixed by the Architect one Mr. Roshan Namvati who was the architect of the Claimants.The said architect has not been examined.
Another architect is examined to prove the valuation.
The examination-in-chief further shows what transpired upon the issue upon the notification in respect of the Suit land.
14. It may be mentioned that no part of the affidavit of examination-in-chief of the director of the Claimants is relevant material to prove the onus which lies upon the Claimants to show that the valuation of the Suit land is higher than what has been offered by the SLAO in the Award. The director need not have been cross-examined at all. Nevertheless lengthy cross- examination has ensued before the Court Commissioner, a large part of which is wholly irrelevant. The Claimants continued to pay municipal taxes and land revenue in respect of their land. The rise in land value from 1986-87 would be in the range 15-20% in the minimum. He has denied that the Claimants' plots have no development potential or that even Plot No.3 is wholly unbuildable.
15. The other witness on behalf of the Claimants is a practicing architect who inspected the land in 1988.
He has got prepared the valuation report. That was prepared by his predecessor Mr. Namavati who has not been examined. He sought to value the Suit land. For that purpose, he went through the sale instances to arrive at the market value. He has reproduced the essentially of first three instances shown in the Award which were the instances given by Claimants (land owners). He has described the Suit land as being in the heart of the city in a thickly populated middle class locality at Parel- Sewri Division having two important roads within five minutes walk and accessible to the D. P. Road nearby. He has deposed that all civic amenities like schools, market, railway station, bus stop are within easy reach of the land to be acquired. Taking the instances and all relevant factors, he valued the acquired land admeasuring 1223.5 at Rs.22,02,300/- at the rate of 1800/- per sq.
mtr.
16. In his affidavit of examination-in-chief, he has not proved this valuation by giving any instance of any sale transaction by documentary evidence. The Claimants have not examined the author of any document showing an instance of sale in the locality at the offer put by the valuer or even near thereto. This witness has neither produced any material nor proved any transaction.
The burden that lies on the Claimants to prove the valuation claimed by them is not in the least discharged.
17. He has nevertheless been extensively cross- examined. The only aspects which may be considered as relevant from his cross-examination are that the entire property of the Claimants was being acquired. The property has some structures, temple etc. "which had come up". He was not asked to value the land in the year 1988. He had put his valuation upon going through the Accommodation Times (A Newspaper) and the Ready Reckoner for the year 1990 published in 1999 and cuttings from newspapers during the year 1986. He had not even seen any original documents relating to the sale instances given by the land owners (Claimants) to the SLAO. He however inspected the site and had seen the plans. He valued the property on the basis of certain documents which he had not obtained personally but which were given to him by the Claimants and which were destroyed because of a fire in his office. No documents have been produced by him. He agreed with the suggestion that the market value was dependent upon the approach road to the land, surroundings of the land and available civic facilities.
He would take into account the prevailing market value and deduct the costs of construction and builders' profit to arrive at the valuation of the plot taking into account the civic amenities available.
18. Mr. Lad on behalf of the acquiring body, MMC drew my attention to several Judgments laying down the factors to be considered by the Court in a Reference made from the SLAO's Award. In the case of Chimanlal Hargovinddas Vs. SLAO AIR 1988 SC 1652, it has been held that this Court is not a Court of appeal and cannot take into account the material relied upon by the SLAO unless the material is produced and proved before the Court.
The Award is not a Judgment which can be challenged in Court. It is merely an offer of the SLAO upon the material utilized by him to make the valuation of the acquired land. The Claimants have to produce fresh material for determining the market value afresh to prove its claim. The market value would be the value of the land which a willing purchaser would pay to a willing seller. The Claimants must be taken to willing sellers and the Government has acquires the land, a willing buyer. The Court would have to make a balance-sheet of the plus-minus factors as would emerge from the documents produced and proved by the Claimants to see the valuation of land proximate in time and place in a common sense manner. When absolutely no evidence of sale in the locality is produced, none can be examined by the Court.
19. In this case no oral evidence has been adduced by the Claimants in support of their Claim whatsoever.
There need have been no cross-examination whatsoever except for the case of the acquiring body being put to the Claimants' witnesses. The evidence restating the particulars of the instances given by the land owners (Claimants) as reflected in the Award would not take the case of the Claimants any further. It would be wholly irrelevant and unreliable to prove the Claimants' claim.
[See. P. Ram Reddy & Ors. Vs. LAO, Hyderabad Urban Development Authority & Ors. (1995) 2 SCC 305].
20. Besides the reliance upon the records of right under the valuation registered is held to be maintained under the Stamp Act and it is held that it cannot find the basis for determining the market value of the land acquired under the LAA. [See. P. Ram Reddy & Ors. Vs.
LAO, Hyderabad Urban Development Authority & Ors. (1995) 2 SCC 305 and Krishi Utpadan Mandi Samiti Vs. Bipin Kumar & Anr. (2004) 2 SCC 283] 21. From the flimsy evidence, which is totally worthless, the Claimants cannot be stated to have proved any valuation of the acquired land or their claim whatsoever. Hence Issue No.1 is answered in the negative.
ISSUE NO. 2 :
22. It is argued on behalf of the Claimants that though a part of the land has not been acquired, the acquisition has not been withdrawn by the Government and the land has not been released to the Claimants. No evidence in that behalf is led except in the cross- examination of the Claimants' director by Mr. Lad on behalf of the acquiring authority. The only aspects which emerge from the cross-examination are that the entire area of 9019 sq. yards of the Claimants' land was not fully encumbered. Plot No.4 on which primary school was to come up has four tenants in three structures. The acquiring body has not taken possession of that plot.
He has denied that the Claimants are not entitled to compensation of the area reserved but not acquired.
23. Mr. Lad has drawn my attention to the possession letter showing the possession of the land taken and given by and between the Claimants and the Government in this case. This excludes the land under Survey No.3/70 admeasuring 469.43 sq. mtrs. which was reserved for construction of a primary school. Since the actual possession is not taken, the land has not vested in the Government. In the case of Lt. Governor of Himachal Pradesh & Anr. Vs. Sri Avinash Sharma AIR 1970 SC 1576 it has been held that only after possession has been taken can the land vest in the Government. Until then the Claimants would be free to deal with the land.
[See. The SLAO, Bombay & Ors. Vs. M/s. Godrej & Boyce AIR 1987 SC 2421] the Claimants would not be divested of its ownership and the Government would not have a right to interfere with such ownership. Consequently the Government would not also have the duty to remove the encroachments thereon. [See. The SLAO, Bombay & Ors. Vs.
M/s. Godrej & Boyce AIR 1987 SC 2421] 24. In the case of Trustees of B. S. J. S. M.
Gyanoddhaya Trust & Ors. Vs. State of Gujarat & Anr. AIR 1981 Gujarat 107, it has been held that withdrawal even after 20 years was held to have been validly made by the Government when possession of land was not taken by the Government. Consequently in that case the exceptions under Section 48 (1) were held not to apply when the withdrawal were seen neither perverse nor malafide nor collusive.
25. Consequently the Claimants' contention that it must be compensated for the part of the land reserved for acquisition was ultimately not acquired or withdrawn from acquisition cannot be accepted. Hence Issue No.2 is answered in the negative.
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